Chapter Seven Study Guide
Criminal Justice
Criminal Justice
Chapter Seven Study Guide
Mr. A
Introduction
We now come to Chapter Seven, which in the past several years, has come to the
forefront of explaining the Due Process of Law, a crucial part of our criminal justice system. In
this chapter we will take an in depth look at the various parts of Due process as well as the
landmark cases that formulate the so called “Rules of the Game” and how they govern the
police and the courts in our country today.
Essential Question for Chapter Seventeen: How does Due Process effect and influence our
system of criminal justice?
Vocabulary
The following terms are to be entered into your notes. Be sure to utilize class time as well as
the power point posted on my website in order to create a thorough and complete definition.
The following need to be defined:
1. Bill of Rights
2. Landmark Case
3. Illegally Seized Evidence
4. Exclusionary Rule
5. Writ of Certiorari
6. Fruit of Poison Tree Doctrine
7. Good Faith Exception
8. Probable Cause
9. Plain View
10. Emergency Search
11. Arrest
12. Search Incident to Arrest
13. Reasonable Suspicion
14. Fleeting Target Exception
15. Compelling interest
16. Suspicionless Search
17. Interrogation
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18.) Inherent Coercion
19.) Psychological Manipulation
20.) Miranda Warnings
21.) Miranda Triggers
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Landmark Cases for Discussion in Chapter Seven
The following list contains a series of legal cases that have been heard by various local,
state and federal courts throughout history. A majority of these cases have worked their way
through our legal system only to reach the Supreme Court of the United States (SCOTUS).
During this unit, the class will be allowed to work into groups. Each group will be
assigned several cases from the following list. You will be required to create a case brief , in
your groups for your cases assigned, For each case your group is assigned you will be required
to construct a case brief which will be shared with the other groups in the class as they share
their case briefs with you. A case brief form will be provided as well as directions on how to
construct your case briefs.
The cases for study are as follows:
1. Weeks v. US (1914)
2. Silverthorne Lumber Company v. US (1920)
3. Mapp v. Ohio (1961)
4. Chimel v. California (1969)
5. US v. Rabinowitz (1950)
6. US v. Leon (1984)
7. Harris v. US (1968)
8. US v. Irizarry (1982)
9. Arizona v. Hicks (1987)
10. Warden v. Hayden (1967)
11. Wilson v. Arkansas (1995)
12. US v. Mendenhall (1980)
13. Yarborough v. Alvarado (2004)
14. Terry v. Ohio
15. US v. Sokolow
16. Minnesota v. Dickerson (1993)
17. Preston v. US
18. South Dakota v. Opperman
19. US v. Rossi
20. Michigan State Police v. Sitz
21. Florida v. Bostick
22. Miranda v. Arizona
23. Escobedo v. Illinois
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Criminal Justice
Mr. A
How to brief a legal case?
1. Title and Citation
The title of the case shows who is opposing whom. The name of the person who initiated
legal action in that particular court will always appear first. Since the losers often appeal to a
higher court, this can get confusing. The first section of this guide shows you how to identify the
players without a scorecard.
The citation tells how to locate the reporter of the case in the appropriate case reporter. If
you know only the title of the case, the citation to it can be found using the case digest covering
that court, or one of the computer-assisted legal research tools (Westlaw or LEXIS-NEXIS).
2. Facts of the Case
A good student brief will include a summary of the pertinent facts and legal points raised
in the case. It will show the nature of the litigation, who sued whom, based on what occurrences,
and what happened in the lower court/s.
The facts are often conveniently summarized at the beginning of the court’s published
opinion. Sometimes, the best statement of the facts will be found in a dissenting or concurring
opinion. WARNING! Judges are not above being selective about the facts they emphasize. This
can become of crucial importance when you try to reconcile apparently inconsistent cases,
because the way a judge chooses to characterize and “edit” the facts often determines which way
he or she will vote and, as a result, which rule of law will be applied.
The fact section of a good student brief will include the following elements:



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A one-sentence description of the nature of the case, to serve as an
introduction.
A statement of the relevant law, with quotation marks or underlining to draw
attention to the key words or phrases that are in dispute.
A summary of the complaint (in a civil case) or the indictment (in a criminal
case)
plus relevant evidence and arguments presented in court to explain who
did what to whom and why the case was thought to involve illegal
conduct.
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
A summary of actions taken by the lower courts, for example: defendant
convicted; conviction upheld by appellate court; Supreme Court granted
certiorari.
3. Issues
The issues or questions of law raised by the facts peculiar to the case are often stated
explicitly by the court. Again, watch out for the occasional judge who misstates the questions
raised by the lower court’s opinion, by the parties on appeal, or by the nature of the case.
Constitutional cases frequently involve multiple issues, some of interest only to litigants
and lawyers, others of broader and enduring significant to citizens and officials alike. Be sure
you have included both.
With rare exceptions, the outcome of an appellate case will turn on the meaning of a
provision of the Constitution, a law, or a judicial doctrine. Capture that provision or debated
point in your restatement of the issue. Set it off with quotation marks or underline it. This will
help you later when you try to reconcile conflicting cases.
When noting issues, it may help to phrase them in terms of questions that can be
answered with a precise “yes” or “no.”
For example, the famous case of Brown v. Board of Education involved the applicability
of a provision of the 14th Amendment to the U.S. Constitution to a school board’s practice of
excluding black pupils from certain public schools solely due to their race. The precise wording
of the Amendment is “no state shall... deny to any person within its jurisdiction the equal
protection of the laws.” The careful student would begin by identifying the key phrases from this
amendment and deciding which of them were really at issue in this case. Assuming that there
was no doubt that the school board was acting as the State, and that Miss Brown was a “person
within its jurisdiction,” then the key issue would be “Does the exclusion of students from a
public school solely on the basis of race amount to a denial of ‘equal protection of the laws’?”
Of course the implications of this case went far beyond the situation of Miss Brown, the
Topeka School Board, or even public education. They cast doubt on the continuing validity of
prior decisions in which the Supreme Court had held that restriction of Black Americans to
“separate but equal” facilities did not deny them “equal protection of the laws.” Make note of
any such implications in your statement of issues at the end of the brief, in which you set out
your observations and comments.
NOTE: More students misread cases because they fail to see the issues in terms of the
applicable law or judicial doctrine than for any other reason. There is no substitute for taking the
time to frame carefully the questions, so that they actually incorporate the key provisions of the
law in terms capable of being given precise answers. It may also help to label the issues, for
example, “procedural issues,” “substantive issues,” “legal issue,” and so on. Remember too, that
the same case may be used by instructors for different purposes, so part of the challenge of
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briefing is to identify those issues in the case which are of central importance to the topic under
discussion in class.
4. Decisions
The decision, or holding, is the court’s answer to a question presented to it for answer by
the parties involved or raised by the court itself in its own reading of the case. There are narrow
procedural holdings, for example, “case reversed and remanded,” broader substantive holdings
which deal with the interpretation of the Constitution, statutes, or judicial doctrines. If the issues
have been drawn precisely, the holdings can be stated in simple “yes” or “no” answers or in short
statements taken from the language used by the court.
5. Reasoning
The reasoning, or rationale, is the chain of argument which led the judges in either a
majority or a dissenting opinion to rule as they did. This should be outlined point by point in
numbered sentences or paragraphs. Why did they decide the way they did? This information
comes from the case reading. Do not insert your personal opinion here!!!!!
6. Separate Opinions
Both concurring and dissenting opinions should be subjected to the same depth of
analysis to bring out the major points of agreement or disagreement with the majority opinion.
Make a note of how each justice voted and how they lined up. Knowledge of how judges of a
particular court normally line up on particular issues is essential to anticipating how they will
vote in future cases involving similar issues.
7. Analysis
In this section be sure to state the effect this case has on the criminal
justice system. What does it allow the police and the court to do or what does the
decision prevent the court or police from doing?
A CAUTIONARY NOTE
Don’t brief the case until you have read it through at least once. Don’t think that because
you have found the judge’s best purple prose you have necessarily extracted the essence of the
decision. Look for unarticulated premises, logical fallacies, manipulation of the factual record, or
distortions of precedent.? Does the result violate your sense of justice or fairness?
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Criminal Justice
Mr. A
Chapter Seven Questions
Name________________________ Period______ Date____________
Directions
Answer the following questions on a separate sheet of paper. During the last ten to
fifteen minutes we will discuss them. Good Luck!
Consider the following fact situation.
1.) Sally Smith was watching television when a police officer knocked at her door.
Sally opened the door and said, "What do you want?" The officer responded: "I just wanted
to talk to you about a robbery that occurred over on 8th and Vine." Sally responded: "Sure,
come on into my home, I don't have anything to hide." While sitting at the kitchen table,
the officer noticed a two foot tall marijuana plant on a window sill. The officer then placed
her in handcuffs, arresting her for possession of a controlled substance. The officer then
searched Sally and found a small bag of cocaine in her right front pocket. The officer then
did a quick sweep of the apartment, and when he was in the bedroom, opened a dresser
door. In it, he found two kilograms of cocaine. All evidence was seized without a warrant.
Do you think that all of the evidence in this case was legally seized? What legal
issues are relevant to analyzing this fact situation? What do you think is the likelihood of
conviction in this case?
2.) While on routine patrol an officer witnesses a man exiting a bank and running
down the street at a fast pace. Shortly after this man exits the bank you receive a radio
broadcast stating that the bank which you are parked in front of was just robbed. A
description which comes over the radio matches the description of the man you saw walking
down the street. You drive over to the side street where you witness the man turn down.
You observe the man walking down the street. You drive your patrol car over to the man at
which time he starts to run down the street even faster. You exit your patrol car and engage
the suspect in a foot chase. As you are running you observe the man run past a woman who
is doing yard work in front, of what appears to be, her home. He runs by the women and
into the open front door of the home. As he entering the home, the women is yelling at the
top of her lungs,” Who are you? Get out of my house!!” AS you enter the door to the home
you observe the man running toward the back exit of the home. You make a flying leap and
tackle the suspect. At gunpoint you take him into custody. As you are leading the suspect
out of the home you observe several marijuana plants growing under a grow lamp.
Can the owner of the home be arrested for the marijuana?
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Why or why not? Be sure to give concrete reasons why the person can or cannot be
arrested based on your notes and what we have discussed in class.
4.) One of the primary reasons for excluding evidence illegally seized is to deter
police officers from violating the Fourth Amendment rights of citizens. Do you think the
exclusion of evidence deters police officer misconduct? Why or why not? Is there a better
way to achieve the same goal?
5.) Have the courts provided adequate protection to citizens against overzealous
police officers? In which areas of search and seizure and interrogation law do you think the
courts have not gone far enough? In which areas do you think the courts have gone too far?
Criminal Justice
Chapter Seven – Terry v. Ohio
Mr. A
Directions
Utilizing the internet and the various search engines, I want you to create a case brief for the landmark
case of Terry v. Ohio. For the purpose of this activity I want you to utilize the same format used for your
other case project. After you have constructed your brief, answer the following questions briefly:
1.) Compare and contrast Reasonable Suspicion with the term Probable Cause.
2.) Identify and explain what constitutional protections were outlined by the landmark case of Terry
v. Ohio.
3.) Briefly explain your own opinion in regards to this decision. Do you believe that this landmark
case gives the police too much power in our society today?
4.) Identify how the terrorist attacks on September 11th effected this decision and the police
powers associated with the Stop and Frisk clause.
5.) Briefly outline what officers can and cannot do during a Terry Stop.
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Case Briefs for Criminal Justice
Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914)
Facts: The defendant was charged with the use of the mails for the purpose of transporting
certain coupons or tickets representing chances or shares in a lottery or gift enterprise. He was
fined and imprisoned. The defendant was arrested by a police officer, without a warrant, at his
place of employment. Other police officers had gone to the house of the defendant, and being
told by a neighbor where the key was kept, found it and entered the house. They searched the
defendant’s room and took possession of various papers and articles found there, which were
afterwards turned over to the United States marshal. Later in the same day police officers
returned with the marshal, who thought he might find additional evidence, and, being admitted
by someone in the house, probably a boarder, the marshal searched the defendant’s room and
carried away certain letters and envelops found in the drawer of a chiffonnier. Neither the
marshal nor the police officer had a search warrant.
Issue(s): Whether the police violated the Fourth and Fifth Amendments to the United States
Constitution by searching and seizing items for the defendant’s home in the absence of a
search warrant, which were subsequently used against him at trial?
Judgment/Disposition: Reversed the lower court ruling. The search was illegal in terms of the
Fourth Amendment
Holding: The court held that in federal trials the Fourth Amendment bars the use of evidence
unconstitutionally seized by federal law enforcement officers. This is known as the exclusionary
rule.
Majority: The majority began to giving a brief history of the Fourth Amendment and that its
intended purpose was to protect a man’s home, which is his castle, from unlawful government
invasion. The majority created the Exclusionary Rule, which prohibits evidence that is obtained
as a result of an unlawful search from being used against the defendant.
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Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920)
Facts: An indictment upon a single specific charge having been brought against the two
Silverthorne’s mentioned, they both were arrested at their homes early in the morning of
February 25th and were detained in custody a number of hours. While they were thus detained
representatives of the Department of Justice and the United States marshal without a shadow of
authority went to the office of their company and made a clean sweep of all the books, papers
and documents found there. The evidence was turned over to the District Attorney who planned
to use it against the defendants.
Procedural Posture:
District Court: Fined Silverthorne Lumber Company 250 dollars for contempt of court and
ordered Frederick Silverthorne to be imprisoned until he should purge himself of a similar
contempt.
Issue(s): Whether the evidence seized through an unlawful search can be used against the
defendants during trial?
Judgment/Disposition: Reversed
Holding: The court established the “fruit of the poisonous tree” rule in which good evidence, if
obtained illegally, cannot be used against the defendant. This is an extension of the
exclusionary rule.
Majority: The majority came up with the “fruit of the poisonous tree” doctrine, which prohibits
the government from using evidence derived from conduct that violates the Fourth Amendment
or other provisions of the constitution. Thus, the exclusionary rule remedy applies not only to the
direct fruits (evidence) obtained by unconstitutional means, but also to all other evidence
subsequently derived from it. The court found this rule was needed because without it the
Fourth Amendment in anticipation of developing subsequent evidence that could be admitted at
trial. If this was permitted it would defeat the purpose of the individual’s rights as well as the
exclusionary rule.
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Mapp v. Ohio 367 U.S. 643 (1961)
STATEMENT OF THE CASE: The petitioner claims that the obscene materials for which she
was ultimately convicted were discovered in an illegal search of the house. There is doubt
whether or not there ever was a search warrant, as it was never produced at trial.
PROCEDURE BELOW: D was convicted, and the Ohio Supreme Court affirmed. This is an
appeal from a conviction for possession of obscene materials. The U. S. Supreme Court granted
certiorari.
STATEMENT OF THE FACTS: Three police officers arrived at Mapp's (D) house pursuant to
information that a person (who was wanted for questioning in a bombing) was hiding out. The
officers knocked at the door, but D was advised by her attorney not to admit them without a
search warrant. Three hours later, more officers showed up and forcibly entered the house. Upon
request, an officer showed D an alleged search warrant. D grabbed the warrant and placed it in
her bosom. It was recovered by an officer and D was restrained. Eventually, obscene materials
for which she was ultimately convicted were discovered in the search of the house. There is
doubt whether or not there ever was a search warrant, as it was never produced at trial.
LEGAL ISSUE: Is evidence obtained by searches and seizures in violation of the Constitution
admissible in a state court?
HOLDING: All evidence obtained by searches and seizures in violation of the Constitution is
inadmissible in a state court.
REASONING: (Clark, J.) No. All evidence obtained by searches and seizures in violation of the
Constitution is inadmissible in a state court. Since Wolf, many states have wholly or partially
adopted the exclusionary rule, which excludes evidence that is gained by illegal or incorrect
means. Other remedies have failed to secure compliance with the constitutional provisions. The
4th Amendment's right of privacy has been declared enforceable against the States through the
Due Process Clause of the 14th Amendment. The right to privacy is implicit in the concept of
ordered liberty and basic to a free society. Moreover, it is insensible to allow unlawfully seized
evidence, because it encourages disobedience. Finally, one can still investigate and prosecute
criminals, while working under a system of excluding illegally obtained evidence as proven by
the federal courts. Reversed, for D.
DISSENT: (Harlan, J.) Half of the states don't use the exclusionary rule and are constitutionally
free to choose whether or not to follow it. States should be free to follow their own methods for
dealing with their criminal problems. The 14th Amendment does not empower this court to mold
state remedies for arbitrary intrusion by the police. Voluntary state action should not be replaced
with federal compulsion.
CRITICAL SUMMARY: Wolf v. Colorado is overruled. I believe the exclusionary rule is
necessary in order to make the Fourth Amendment right a reality.
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Chimel v. California
395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)
Author:- Billy Bob
ISSUE: Whether the warrantless search of an arrestees entire house can be constitutionally
justified as incident to the arrest itself?
FACTS: A warrant for the arrest of the petitioner was made for the burglary of a coin shop. The
officers identified themselves and were allowed entrance to the house by the petitioner’s wife
where they waited for the accused man to come home. Upon arrival of the petitioner, the
arresting officers showed the arrest warrant to the accused and asked permission to “look
around”. The petitioner refused the request and the officers told the petitioner that a search could
be conducted on “the basis of lawful arrest” and carried out the search. The officers searched the
entire house including the attic, garage, and a small workshop, etc. and found various items
which were admitted as evidence in court, over the defendants objection that they were admitted
unconstitutionally.
DECISIONS OF THE LOWER COURTS: The judgment of the district court found the
defendant guilty on two counts of burglary. All appellate courts in the state of California
affirmed the judgment of the district court. A writ of certiorari was granted to the petitioner by
the Supreme Court.
HOLDING: The judgment of the district court is reversed.
RATIONALE: The decision of the Supreme Court, delivered by Justice Stewart, was based on
the decision of United States v. Rabinowitz and that the search was unreasonable under the 4th
and 14th Ammendments. Until this point in time, a “warrantless search incident to a lawful arrest
may general extend to the area that is considered to be in the possession or under the control of
the person arrested.” The Court held that a warrantless search was reasonable only of the
defendant’s person i.e. whatever he/she has in pockets and etc. as well as anything that may be in
reach such as a weapon in a nearby drawer. When an arrest is made, it is reasonable for the
arresting officer to search the person arrested in order to remove any weapons that the latter
might seek to use in order to resist arrest or effect his escape . . . it is entirely reasonable for the
arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent
its concealment or destruction. And the area which an arrestee might reach in order to grab a
weapon or evidentiary items must, of course, be governed by a like rule. The Court felt that there
was “no comparable justification, for routinely searching rooms other than that in which an arrest
occurs…” “Such searches, in the absence of well recognized exceptions, may be made only
under the authority of a search warrant.” The court held the opinion that the 4th Amendment, at
no point, allowed a search to go beyond that of the area where the person is arrested “from which
the person might obtain weapons or evidentiary items.”
CONCURRING OPINIONS: Justice Harlan concurred with the opinion of the Court in that “as
a result of Mapp v. Ohio, every change in the 4th Amendment law must now be obeyed by state
officials facing widely different problems of local law enforcement”. Justice Harlan also states
“the warrant requirement plays an essential role in the protection of those fundamental liberties
protect again state infringement by the 4th Amendment.”
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DISSENTING OPINIONS: Justice White and Justice Black join dissenting claiming that a
search in a case such as this is justified for the fact that if the petitioner had been arrested at his
place of work, a warrant would have been obtained to search his home at a later time. Also, if
they had left the premises of the home where the arrest was made to obtain a warrant to search
the content of the house, the spouse of the defendant, knowing that her husband had committed a
crime, may have removed the evidence from its location where it may have never been found.
POLICY EFFECT: The outcome of Chimel v. California held that upon arrest, only a person’s
body and immediate area is justified by a warrantless search. Searching beyond those points
must be accompanied by a search warrant
United States v. Rabinowitz
Facts of the Case:
FBI agents arrested Rabinowitz in his one-room office. Rabinowitz was charged with selling and
possessing forged government stamps. The officers searched his office without a search warrant
and seized the stamps. The stamps were introduced as evidence. Rabinowitz was convicted. He
appealed.
Question:
Did the search violate the Fourth Amendment warrant requirement?
Conclusion:
The Fourth Amendment permits a warrantless search incident to a lawful arrest. The search may
be of the person arrested and of the premises where the arrest occurs.
United States v. Leon 468 U.S. 897 (1984).
Author: Libby
STATEMENT OF THE CASE: The D held that there was no good faith exception to the
Fourth Amendment exclusionary rule.
PROCEDURE BELOW: Petitioner appealed the decision of the United States Court of Appeals
for the Ninth Circuit.
STATEMENT OF THE FACTS: Police officers initiated surveillance of Leon's (D) activities.
A search warrant was issued pursuant to that surveillance. A large quantity of drugs were seized.
D was charged with violations of federal drug-trafficking laws. At trial, the court granted D's
suppression motion because the warrant was not issued on probable cause. Specifically, the court
found that the warrant contained allegations of an untested informant and limited corroboration
by the police. The court of appeals affirmed; they refused to accept a good faith exception to the
exclusionary rule. The Supreme Court granted certiorari.
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LEGAL ISSUE: Should the 4th Amendment's exclusionary rule be modified so as not to bar the
use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a
detached and neutral magistrate but ultimately found to be unsupported by probable cause?
HOLDING: The 4th Amendment's exclusionary rule should be modified to permit the
introduction of evidence obtained in the reasonable good-faith belief that a search or seizure was
in accord with the 4th Amendment.
REASONING: (White, Justice) Yes. The 4th Amendment's exclusionary rule should be
modified to permit the introduction of evidence obtained in the reasonable good-faith belief that
a search or seizure was in accord with the 4th Amendment. The officer's reliance on the warrant
must be objectively reasonable. The exclusionary rule is not a personal constitutional right. It is a
judicially created remedy intended to safeguard 4th Amendment rights through its deterrent
effect. Therefore, the costs and benefits of excluding inherently trustworthy tangible evidence
must be weighed, and the remedy applied only where its costs are acceptable and its deterrent
effect is well served. The rule's chief benefit is to deter police misconduct, not to punish judicial
errors. No evidence has been shown that relaxing the rule would decrease a judge's professional
commitment to protecting 4th Amendment rights. Courts may allow a good-faith exception to the
exclusionary rule. Good faith is an exception to the exclusionary rule. The exclusionary rule is a
judicially created rule designed to deter police misconduct. The rule should not be applied when
it does not serve its function. If a police officer in good faith relies on a defective warrant, he is
not guilty of misconduct. To suppress evidence when a warrant is defective does nothing to deter
future misconduct, because there is nothing the officer should have done differently. The
purposes of the exclusionary rule are not achieved by suppressing evidence obtained in good
faith reliance on a defective search warrant. Reversed.
Concurring: (Blackmun, Justice) The exclusionary rule is not constitutionally compelled and
there is no way to avoid the majority decision because the rule has not appreciable effect when
officers act in objectively reasonable reliance upon search warrants.
Dissent: (Brennan, Justice) The courts use of costs and benefits analysis has a narcotic effect of
creating the illusion of technical precision and ineluctability. The majority has not given honest
assessment to the merits of the exclusionary rule. If this good faith exception weakens police
compliance with the 4th Amendment, then this exception will be reconsidered in the future.
CRITICAL SUMMARY: The exclusionary rule is a judge made rule created to deter police
misconduct; it is intended to deter 4th Amendment misconduct by the government as a whole,
not just excesses by the police. Neither the history nor the language of the 4th Amendment
suggests that it was intended to restrict the police but allow other agents of the same government
to take advantage of unlawfully seized evidence. When does a judge made rule come under the
penumbra of rights inherent in the constitution? This rule should be part of the inherent rights in
the constitution. Good faith is the current standard for applying the exclusionary rule.
Exceptions: 4 circumstances when the evidence will be excluded notwithstanding the fact that
the officer acted in good faith. 1) If the magistrate issued a warrant by relying on affidavit
supplied by affiant who knew that statements were false or recklessly disregarded the truth.
Generally speaking that magistrate must assume officer is saying the truth because he is under
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oath. In this situation we have bad faith and needs to be deterred. 2) If issuing magistrate
abandoned neutral and detached role by blindly rubber stamping behavior of police. Reasonable
officer must realize that this behavior is unethical. 3) If warrant is completely lacking in any
indicia of probable cause than there is no good faith on part of police officer. 4) If police officer
relies on warrant that is facially deficient. If it looks like a preconstitution general warrant
lacking all particularities.
HARRIS V. UNITED STATES, 390 U. S. 234
(1968)
U.S. Supreme Court
Harris v. United States, 390 U.S. 234 (1968)
Harris v. United States
No. 92
Argued January 18, 1968
Decided March 5, 1968
390 U.S. 234
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Syllabus
Pursuant to a departmental regulation, a police officer searched a impounded car held as
evidence of a robbery. The search completed, the officer opened the car door for the purpose of
rolling up a window and thus protecting the car and its contents. On opening the door, the officer
saw, exposed to plain view, the automobile registration card belonging to the victim of the
robbery. This card was used as evidence in petitioner's trial. Petitioner's conviction was affirmed
by the Court of Appeals over his contention that the card had been illegally seized following a
warrantless search.
Held: The card was subject to seizure and introducible in evidence, since it was not discovered
by means of a search in the technical sense, but was plainly visible to the officer who had a right
to be in a position of viewing it.
125 U.S.App.D.C. 231, 370 F.2d 477, affirmed.
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PER CURIAM.
Petitioner was charged with robbery under the District of Columbia Code. D.C.Code Ann. § 222901. At his trial in the United States District Court for the District of Columbia, petitioner
moved to suppress an automobile registration card belonging to the robbery victim, which the
Government sought to introduce in evidence. The trial court, after a hearing, ruled that the card
was admissible. Petitioner was convicted of the crime charged and sentenced to imprisonment
for a period of
Page 390 U. S. 235
two to seven years. On appeal, a panel of the United States Court of Appeals for the District of
Columbia Circuit reversed, holding that the card had been. obtained by means of an unlawful
search. The Government's petition for rehearing en banc was, however, granted, and the full
Court of Appeals affirmed petitioner's conviction, with two judges dissenting. We granted
certiorari to consider the problem presented under the Fourth Amendment. 386 U.S. 1003
(1967). We affirm.
Petitioner's automobile had been seen leaving the site of the robbery. The car was traced, and
petitioner was arrested as he was entering it near his home. After a cursory search of the car, the
arresting officer took petitioner to a police station. The police decided to impound the car as
evidence, and a crane was called to tow it to the precinct. It reached the precinct about an hour
and a quarter after petitioner. At this moment, the windows of the car were open and the door
unlocked. It had begun to rain.
A regulation of the Metropolitan Police Department requires the officer who takes an impounded
vehicle in charge to search the vehicle thoroughly, to remove all valuables from it, and to attach
to the vehicle a property tag listing certain information about the circumstances of the
impounding. Pursuant to this regulation, and without a warrant, the arresting officer proceeded to
the lot to which petitioner's car had been towed in order to search the vehicle, to place a property
tag on it, to roll up the windows, and to lock the doors. The officer entered on the driver's side,
searched the car, and tied a property tag on the steering wheel. Stepping out of the car, he rolled
up an open window on one of the back doors. Proceeding to the front door on the passenger side,
the officer opened the door in order to secure the window and door. He then saw the registration
card, which lay face up on the metal stripping over which
Page 390 U. S. 236
the door closes. The officer returned to the precinct, brought petitioner to the car, and confronted
petitioner with the registration card. Petitioner disclaimed all knowledge of the card. The officer
then seized the card and brought it into the precinct. Returning to the car, he searched the trunk,
rolled up the windows, and locked the doors.
The sole question for our consideration is whether the officer discovered the registration card by
means of an illegal search. We hold that he did not. The admissibility of evidence found as a
result of a search under the police regulation is not presented by this case. The precise and
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detailed findings of the District Court, accepted by the Court of Appeals, were to the effect that
the discovery of the card was not the result of a search of the car, but of a measure taken to
protect the car while it was in police custody. Nothing in the Fourth Amendment requires the
police to obtain a warrant in these narrow circumstances.
Once the door had lawfully been opened, the registration card, with the name of the robbery
victim on it, was plainly visible. It has long been settled that objects falling in the plain view of
an officer who has a right to be in the position to have that view are subject to seizure and may
be introduced in evidence. Ker v. California, 374 U. S. 23, 374 U. S. 42-43 (1963); United States
v. Lee, 274 U. S. 559 (1927); Hester v. United States, 265 U. S. 57 (1924).
Affirmed.
MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.
MR. JUSTICE DOUGLAS, concurring.
Though Preston v. United States, 376 U. S. 364, is not mentioned in the Court's opinion, I
assume it has survived
Page 390 U. S. 237
because, in the present case, (1) the car was lawfully in police custody, and the police were
responsible for protecting the car; (2) while engaged in the performance of their duty to protect
the car, and not engaged in an inventory or other search of the car, they came across
incriminating evidence.
Arizona v. Hicks
480 US 321(1987)
Author:- Secret Agent Man
Facts: A bullet was fired through the floor of the defendant’s apartment into the apartment below
and struck an individual who then called the police. Police responded to the incident and went
first to the apartment of the origin of the bullet. The defendant, Hicks, was not in the apartment
at the time, but officers found and seized three firearms and a stocking-cap mask, which were in
plain sight. One of the officers then noticed two sets of stereo equipment that look displaced in
the otherwise shabby apartment. After moving two turntables from on top of the equipment, the
officer recorded their serial numbers and found them to be property stolen in a recent armed
robbery. Mr. Hicks was found and charged with various crimes.
Procedural History: The prosecution argued that since there were exigent circumstances to
search the defendant’s home, any evidence found in “plain sight” was seized legally. The defense
contested the validity of the search, claiming that the search of the stereo equipment was
unwarranted based on its appearance alone and violated the defendant’s Fourth Amendment
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rights. The defendant is found guilty of the initial charges, but all evidence relating to the
robbery charges is ruled fruit of an unlawful search by the state trial court and the Arizona Court
of Appeals. When the Arizona Supreme Court denied review, the United States Supreme Court
accepted the State’s request for a hearing.
Issue: Was their probable cause to search the stereo equipment based on its appearance alone?
Holding: The stereo equipment seized in the search was suppressed.
Rationale: The Supreme Court first ruled that the warrantless entry by the officers, under the
exigent circumstances exception to the warrant requirement, was valid. The court then ruled that
the recording of the equipment’s serial numbers did not constitute a search or seizure. However,
when the officer moved the turntable it was held to be a separate search, apart from the search
for the defendant and his firearms. It was the court’s ruling that the officer did not have probable
cause, only reasonable suspicion to search the stereo equipment. The evidence seized after the
discovery of the turntables was subsequently deemed inadmissible
Warden v. Hayden (1967)
United States Supreme Court
Author: P Mac Daddy
Procedure: After petitioner had been convicted in a Maryland state court of armed robbery upon
evidence including items of his clothing seized during a search of his home. After unsuccessful
state post-conviction proceedings, petitioner instituted the present habeas corpus proceeding in
the United States District Court for the District of Maryland and was denied relief. The Court of
Appeals for the Fourth Circuit reversed, holding that the clothing seized was improperly
admitted in evidence because it had evidential value only.
Statement of the case: Hayden (D) contends that evidence was improperly admitted in his state
trial when it should have been suppressed due to lack of search warrant. Other than that he has
no complaints, except the fact that his cellmate keeps staring at his ass and making
inappropriate gestures in his directions.
Facts: police upon information that a person suspected of an armed robbery had entered a house
a few minutes before, gained a warrantless entry into the dwelling; whereby, the search revealed
the D and the evidence that was subsequently used in his conviction. This evidence included a
shotgun found in the bathroom of the dwelling, a small caliber handgun and clip and clothing
resembling the robbers in the washing machine. This was a taxi robbery that netted $363 dollars,
not bad considering that he’ll do an 8-10 year stretch for it, hope it was worth it!
Issue: Is a search warrant necessary to enter a house to search for a suspect that may have just
been involved in an armed robbery, and to conduct any subsequent search if incidental to the
arrest?
Holding: (Other than your balls) warrant is not necessary if the exigencies of the situation make
that course imperative, and items which may relate to the crime can be seized. This is applicable
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to situations such as this one where police were following a suspected taxi armed robber into a
private dwelling.
Reasoning: (Brennan) 1) Neither the entry without warrant to search for the robber, nor the
search for him without warrant, was invalid, since under the circumstances of the case, the
exigencies of the situation made that course imperative; (2) under the Fourth Amendment no
distinction exists between merely evidentiary materials, which may not be seized, and those
objects which may validly be seized, including the instrumentalities and fruits of crime, and
contraband, and (3) the items of clothing were properly admitted in evidence. The fourth
amendment allows intrusions upon privacy under these circumstances (exigent) and there is no
viable reason to distinguished intrusions to secure mere evidence from intrusions to secure fruits,
instrumentalities or contraband! (198)
Warden v. Hayden 387 U.S. 294
Author: Libby
STATEMENT O THE CASE: Hayden (D) contends that evidence was improperly admitted in
his state trial when it should have been suppressed due to lack of search warrant.
PROCEDURE BELOW: After petitioner had been convicted in a Maryland state court of
armed robbery upon evidence including items of his clothing seized during a search of his home.
After unsuccessful state post-conviction proceedings, petitioner instituted the present habeas
corpus proceeding in the United States District Court for the District of Maryland and was
denied relief. The Court of Appeals for the Fourth Circuit reversed, holding that the clothing
seized was improperly admitted in evidence because it had evidential value only.
STATEMENT OF FACTS: The police upon information that a person suspected of an armed
robbery had entered a house a few minutes before, gained a warrantless entry into the dwelling;
whereby, the search revealed the D and the evidence that was subsequently used in his
conviction.
LEGAL ISSUES: Is a search warrant necessary to enter a house to search for a suspect that may
have just been involved in an armed robbery, and to conduct any subsequent search if incidental
to the arrest.
HOLDING: A warrant is not necessary if the exigencies of the situation make that course
imperative, and items which may relate to the crime can be seized.
REASONING: (Brennan, J.) (1) Neither the entry without warrant to search for the robber, nor
the search for him without warrant, was invalid, since under the circumstances of the case, the
exigencies of the situation made that course imperative; (2) under the Fourth Amendment no
distinction exists between merely evidentiary materials, which may not be seized, and those
objects which may validly be seized, including the instrumentalities and fruits of crime, and
contraband, and (3) the items of clothing were properly admitted in evidence.
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CRITICAL SUMMARY: If the search is contemporaneous with the crime committed, then
there should not be a problem. An investigation of what basically amounts to hot pursuit should
not be delayed unreasonably.
Exigent Circumstances- There was an armed felon, police didn’t know whose house
this felon had run into, they were in hot pursuit (within a few minutes), so they could go in w/out
warrant. What allows them to search beyond once he is found? Police can find another
exception, i.e., can search the immediate area for weapons.
Wilson v. Arkansas:
U.S. Supreme Court, 1995.
Statement of the Case:
Procedure:
Facts:
Wilson, Drug Dealer, sold marijuana to a police informant on different occasions and even
threatened to kill the informant with a gun if he turned out to be working for the police. The
police officers used this evidence to obtain a warrant to search the petitioner's house and arrest
the petitioner and her friend.
When the officers arrived at Wilson's house, the front door was wide open and the officer
opened the unlocked screen door and made an entry while announcing at the same time that they
were from the police department and they had a warrant. The petitioner was found in the
restroom where she was trying to flush down marijuana and she was arrested. Wilson filed a
motion to suppress the evidence based on the claim that the officers did not knock and announce
their presence before entering the house.
Issue:
Whether the lower courts erred in ruling that it was not required to “knock and announce”
that law enforcement was entering the home when the police arrived at a house with a search
warrant.
Procedural Result:
The lower courts rejected the motion and the petitioner was convicted for 32 years in prison.
The Supreme Court of Arkansas affirmed the conviction.
Holding:
It is required to “knock and announce” that law enforcement was entering the home when the
police arrived at a house with a search warrant.
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Reasoning:
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During the construction of the Constitution, the common-law knock and announce rule
was well accepted and practiced. So it would be reasonable to assume that the framers
considered it to be part of Fourth Amendment for the police officers to knock and ask the
suspects to open the door before breaking into the homes of people.
The court went on to state that this knock and announce principle is not an inflexible
requirement which applies to every situation.
 For example, if a prisoner escapes from jail and hides in his home, the police
officers do not have to knock and ask the prisoner to open the door to his house.
 Also, if there is a risk that evidence will be destroyed if the police knocked and
announced, then the officers do not have to follow this rule.
Therefore, the court ruled that unless these exigent circumstances exist, the police
officers are required to knock and announce their presence before breaking into the
houses of suspected criminals
To “knock and announce” is part of the reasonableness of a reasonable search and seizure
of the 4th amendment.
The exigent circumstances may have existed in this case, but it has to be remanded for
the lower courts to decide those facts.
Additional Points:
General Categories that justify exemption from knock and announce requirements:

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Richards v. Wisconsin: Supreme Court overruled per se exception to knock and
announce rule for felony drug investigations.
 Two reasons: Substantial overgeneralization and can easily be applied to
everything, thus rendering the knock and announce rule meaningless.
What kind of dangers justify dispensing with the requirement?
 Police must have reasonable suspicion that, under those circumstances, it would
be:
 Dangerous or futile, OR
 Inhibit the effective investigation of the crime (like by allowing
destruction of evidence).
United States v. Ramirez: It does not violate the 4th amendment to destroy property (ie. a
window) when entering without meeting the “knock and announce” rule, although
excessive or unnecessary destruction of property violates the 4th amendment, although it
does not make the fruits of the search subject to suppression.
United States v. Banks: Officers broke down the door of Banks’ small apartment after
“knocking and announcing,” but receiving no response in 15-20 seconds, since Banks
was in the shower. They found cocaine and he claimed they violated the 4th, and filed a
motion to suppress.
 Supreme Court ruled that the time required to wait was to be based on the totality
of the circumstances, on a case by case basis.
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It was reasonable because more than 15-20 seconds was enough time to flush
cocaine down the toilet.
 Rule: Reasonableness of suspecting refusal turns on whether “an occupant has
time to get to the door.”
Execution of a warrant can be unconstitutional, although the warrant is valid:
Wilson v. Layne: Held bringing 3rd parties, like the media, into someone’s house when
police are executing a warrant violates the 4th amendment, when they are not aiding in the
execution of the warrant.
 Case where father cuffed in front of media, when cops mistakenly thought they
were in the son’s house and arresting the son. They released him immediately
and were sued.


POWELL, J., Concurring Opinion
SUPREME COURT OF THE UNITED STATES
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446 U.S. 544
United States v. Mendenhall
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
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No. 78-1821 Argued: February 19, 1980 --- De
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MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN
join, concurring in part and concurring in the judgment.
I join Parts I, II-B, II-C, and III of the Court's opinion. Because neither of the
courts below considered the question, I do not reach the Government's contention
that the agents did not "seize" the respondent within the meaning of the Fourth
Amendment. In my view, we may assume for present purposes that the stop did
constitute a seizure. [n1] I would hold -- as did the District Court -- that the federal
agents had reasonable suspicion that the respondent was engaging in criminal
activity, and, therefore, that they did not violate the Fourth Amendment by
stopping the respondent for routine questioning.
 I
The relevant facts may be stated briefly. The respondent arrived at the Detroit
Metropolitan Airport on a flight from Los Angeles. She was the last passenger to
leave the aircraft. [p561] Two agents of the Drug Enforcement Administration
watched the respondent enter the terminal, walk to the baggage area, then
change directions and proceed to an Eastern Airlines ticket counter. After the
respondent accepted a boarding pass for a flight to Pittsburgh, the two agents
approached her. They identified themselves as federal officers, and requested
some identification. The respondent gave them her driver's license and airline
ticket. The agents asked the respondent several brief questions. The respondent
accompanied the agents to an airport office, where a body search conducted by a
female police officer revealed two plastic bags of heroin.

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II
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Terry v. Ohio, 392 U.S. 1 (1968), establishes that a reasonable investigative stop
does not offend the Fourth Amendment. [n2] The reasonableness of a stop turns on
the facts and circumstances of each case. In particular, the Court has emphasized
(i) the public interest served by the seizure, (ii) the nature and scope of the
intrusion, and (iii) the objective facts upon which the law enforcement officer
relied in light of his knowledge and expertise. See Brown v. Texas, 443 U.S. 47,
50-51 (1979); Delaware v Prouse, 440 U.S. 648, 654-655 (1979); United States v.
Brignoni-Ponce, 422 U.S. 873, 879-883 (1975); Terry v. Ohio, supra, at 20-22.
 A
The public has a compelling interest in detecting those who would traffic in
deadly drugs for personal profit. Few problems affecting the health and welfare
of our population, particularly our young, cause greater concern than the
escalating use of controlled substances. Much of the drug traffic [p562] is highly
organized and conducted by sophisticated criminal syndicates. The profits are
enormous. And many drugs, including heroin, may be easily concealed. As a
result, the obstacles to detection of illegal conduct may be unmatched in any
other area of law enforcement.
To meet this pressing concern, the Drug Enforcement Administration, since 1974,
has assigned highly skilled agents to the Detroit Airport as part of a nationwide
program to intercept drug couriers transporting narcotics between major drug
sources and distribution centers in the United States. Federal agents have
developed "drug courier profiles" that describe the characteristics generally
associated with narcotics traffickers. For example, because the Drug Enforcement
Administration believes that most drugs enter Detroit from one of four "source"
cities (Los Angeles, San Diego, Miami, or New York), agents pay particular
attention to passengers who arrive from those places. See United States v. Van
Lewis, 409 F.Supp. 535, 538 (ED Mich.1976), aff'd, 556 F.2d 385 (CA6 1977).
During the first 18 months of the program, agents watching the Detroit Airport
searched 141 persons in 96 encounters. They found controlled substances in 77 of
the encounters, and arrested 122 persons. 409 F.Supp. at 539. When two of these
agents stopped the respondent in February, 1976, they were carrying out a highly
specialized law enforcement operation designed to combat the serious societal
threat posed by narcotics distribution.
 B
Our cases demonstrate that "the scope of [a] particular intrusion, in light of all
the exigencies of the case, [is] a central element in the analysis of
reasonableness." Terry v. Ohio, supra at 18, n. 15. [n3] The intrusion in this case
was quite [p563] modest. Two plainclothes agents approached the respondent as
she walked through a public area. The respondent was near airline employees
from whom she could have sought aid had she been accosted by strangers. The
agents identified themselves and asked to see some identification. One officer
asked the respondent why her airline ticket and her driver's license bore different
names. The agent also inquired how long the respondent had been in California.
Unlike the petitioner in Terry, supra at 7, the respondent was not physically
restrained. The agents did not display weapons. The questioning was brief. In
these circumstances, the respondent could not reasonably have felt frightened or
isolated from assistance.
 C
In reviewing the factors that led the agents to stop and question the respondent,
it is important to recall that a trained law enforcement agent may be "able to
perceive and articulate meaning in given conduct which would be wholly innocent
to the untrained observer." Brown v. Texas, supra at 52, n. 2. Among the
circumstances that can give rise to reasonable suspicion are the agent's
knowledge of the methods used in recent criminal activity and the characteristics
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of persons engaged in such illegal practices. Law enforcement officers may rely
on the "characteristics of the [p564] area," and the behavior of a suspect who
appears to be evading police contact. United States v. Brignoni-Ponce, 422 U.S.
at 884-885. "In all situations, the officer is entitled to assess the facts in light of
his experience." Id. at 885.
The two officers who stopped the respondent were federal agents assigned to the
Drug Enforcement Administration. Agent Anderson, who initiated the stop and
questioned the respondent, had 10 years of experience and special training in
drug enforcement. He had been assigned to the Detroit Airport, known to be a
crossroads for illicit narcotics traffic, [n4] for over a year, and he had been
involved in approximately 100 drug-related arrests. App. 7-8.
The agents observed the respondent as she arrived in Detroit from Los Angeles.
The respondent, who appeared very nervous, engaged in behavior that the agents
believed was designed to evade detection. She deplaned only after all other
passengers had left the aircraft. Agent Anderson testified that drug couriers often
disembark last in order to have a clear view of the terminal so that they more
easily can detect government agents. Id. at 9. Once inside the terminal, the
respondent scanned the entire gate area and walked "very, very slowly" toward
the baggage area. Id. at 10 (testimony of Agent Anderson). When she arrived
there, she claimed no baggage. Instead, she asked a skycap for directions to the
Eastern Airlines ticket counter located in a different terminal. Agent Anderson
stood in line immediately behind the respondent at the ticket counter. Although
she carried an American Airlines ticket for a flight from Detroit to Pittsburgh, she
asked for an Eastern Airlines ticket. An airline employee gave her an Eastern
Airlines boarding pass. Id. at 10-11. Agent Anderson testified that drug couriers
frequently travel without [p565] baggage and change flights en route to avoid
surveillance. Ibid. On the basis of these observations, the agents stopped and
questioned the respondent.
 III
The District Court, which had an opportunity to hear Agent Anderson's testimony
and judge his credibility, concluded that the decision to stop the respondent was
reasonable. [n5] I agree. The public interest in preventing drug traffic is great, and
the intrusion upon the respondent's privacy was minimal. The specially trained
agents acted pursuant to a well planned, and effective, federal law enforcement
program. They observed respondent engaging in conduct that they reasonably
associated with criminal activity. Furthermore, the events occurred in an airport
known to be frequented by drug couriers. [n6] In light of all of the circumstances, I
would hold that the agents possessed reasonable and articulable suspicion of
criminal activity when they stopped the respondent in a public place and asked
her for identification.
The jurisprudence of the Fourth Amendment demands consideration of the
public's interest in effective law enforcement as well as each person's
constitutionally secured right to be free from unreasonable searches and seizures.
In applying [p566] a test of "reasonableness," courts need not ignore the
considerable expertise that law enforcement officials have gained from their
special training and experience. The careful and commendable police work that
led to the criminal conviction at issue in this case satisfies the requirements of
the Fourth Amendment.
1.
MR. JUSTICE STEWART concludes in 446 U.S. 551"]Part II-A that there was no
"seizure" within the meaning of the Fourth Amendment. He reasons that such a
seizure occurs "only if, in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he was not free to leave."
Ante at 554. MR. JUSTICE STEWART also notes that "‘[t]here is nothing in the
Constitution which prevents a policeman from addressing questions to anyone on
the streets.'" Ante at 553, quoting Part II-A that there was no "seizure" within the
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meaning of the Fourth Amendment. He reasons that such a seizure occurs "only if,
in view of all of the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave." Ante at 554. MR. JUSTICE
STEWART also notes that "‘[t]here is nothing in the Constitution which prevents a
policeman from addressing questions to anyone on the streets.'" Ante at 553,
quoting Terry v. Ohio, 392 U.S. 1, 34 (1968) (WHITE, J., concurring). I do not
necessarily disagree with the views expressed in Part II-A. For me, the question
whether the respondent in this case reasonably could have thought she was free
to "walk away" when asked by two Government agents for her driver's license and
ticket is extremely close.
2.
The Terry Court held that the Warrant Clause of the Fourth Amendment does
not apply to a "stop." This category of police conduct must survive only the Fourth
Amendment's prohibition of "unreasonable searches and seizures." 392 U.S. at 20.
3.
For example, in Delaware v. Prouse, 440 U.S. 648 (1979), we considered the
justification necessary for a random stop of a moving vehicle. Such stops, which
may take place at night or on infrequently traveled roads, interfere with freedom
of movement, are inconvenient, and may be frightening. Id. at 657. Thus, we
held that police may not stop a moving vehicle without articulable and
reasonable suspicion of unlawful activity. We explicitly distinguished our earlier
decision in United States v. Martinez-Fuerte, 428 U.S. 543 (1976), which did not
require individualized suspicion for the stop of a motor vehicle at a fixed
checkpoint, because a checkpoint stop constitutes a "lesser intrusion" than a
random stop. 440 U.S. at 656. The motorist halted at a permanent checkpoint has
less reason for anxiety because he "‘can see that other vehicles are being stopped
[and] can see visible signs of the officers' authority. . . .'" United States v.
Martinez-Fuerte, supra at 558, quoting United States v. Ortiz, 422 U.S. 891,895
(1975).
4.
From 1975 through 1978, more than 135 pounds of heroin and 22 pounds of
cocaine were seized at the Detroit Airport. In 1978, 1,536 dosage units of other
dangerous drugs were discovered there. See 596 F.2d 706, 708, n. 1 (CA6 1979)
(Weick, J., dissenting).
5.
Although the Court of Appeals reversed the judgment of the District Court, it
did not explicitly reject this conclusion of law. See id. at 707. The dissenting
judge noted that the Court of Appeals failed to take issue with the District Court's
conclusion that the agents had reasonable suspicion to make the investigatory
stop. Id. at 709 (Weick, J.).
6.
The results of the Drug Enforcement Agency's efforts at the Detroit Airport, see
supra at 562, support the conclusion that considerable drug traffic flows through
the Detroit Airport. Contrary to MR. JUSTICE WHITE's apparent impression, post at
573-574, n. 11, I do not believe that these statistics establish, by themselves, the
reasonableness of this search. Nor would reliance upon the "drug courier profile"
necessarily demonstrate reasonable suspicion. Each case raising a Fourth
Amendment issue must be judged on its own facts.
Yarborough v Alvarado
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Facts of the Case:
Police interviewed Michael Alvarado, 17, without his parents at a police station about his
involvement in a crime. Police neither arrested nor Mirandized Alvarado. During the
interview, Alvarado confessed involvement. Based, in part, on these statements, Alvarado
was convicted of second-degree murder and attempted robbery. After failed appeals in
the California courts, Alvarado unsuccessfully sought a writ of habeas corpus in federal
district court in California. The Ninth Circuit Court of Appeals reversed. Recognizing the
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"in custody" standard to be whether a reasonable person would feel free to end
interrogation, the appeals court held that a juvenile is more likely to feel he is in custody.
Because Alvarado was "in custody," the Fifth Amendment required that his rights under
Miranda v. Arizona (1966) be read to him.
Question:
When deciding whether a suspect is "in custody" and therefore entitled to his Miranda
warnings, must an officer consider the suspect's age and previous history with law
enforcement?
Conclusion:
No. In a 5-to-4 decision written by Justice Anthony Kennedy, the Court ruled that the
purpose of the Court's Miranda decision was to provide an objective rule readily
understandable by police officers: when interrogating a suspect who is "in custody," an
officer must first read the suspect his Miranda rights. Determining whether a suspect is
actually in custody has always been based on objective criterion like whether he had been
brought to the police station by police or had come of his own accord. Requiring officers
to consider individual characteristics of a suspect when determining whether he is "in
custody," such as the suspect's age or previous history with law enforcement, would make
the test a subjective one that would be more difficult for officers to understand and abide
by. Justice Kennedy wrote that the Miranda decision "states an objective rule designed to
give clear guidance to the police, while consideration of a suspect's individual
characteristics - including his age - could be viewed as creating a subjective inquiry."
Decisions
Decision: 5 votes for Yarborough, 4 vote(s) against
Legal provision: 28 USC 2241-2255 (habeas corpus)
This case establishes the Free to Leave Test
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Terry v. Ohio 392 U.S. 1 (1968) Stop and Frisk
Author: Libby
STATEMENT OF THE CASE: The D contended that the weapon seized from his
person and introduced into evidence was obtained through an illegal search, under the
Fourth Amendment, and that the trial court improperly denied his motion to suppress.
PROCEDURE BELOW: Petitioner sought review of a judgment from the Supreme
Court of Ohio that affirmed petitioner's lower court conviction for carrying a concealed
weapon.
STATEMENT OF THE FACTS: An officer observed two men standing on a street
corner. One would walk up to a store window, look inside, and return to confer with his
companion. This process was repeated about a dozen times. The suspects talked with a
third man, then followed him up the street. Thinking the suspects were "casing" the store,
the officer confronted the three men and asked their names. The men mumbled a
response, at which time the officer spun one of the men, Terry (D), around and patted his
breast. He found and removed a pistol. D was charged with carrying a concealed weapon.
D moved to suppress this weapon from evidence. The trial judge denied his motion. The
Ohio court of appeals affirmed, and the state supreme court dismissed D's appeal.
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LEGAL ISSUE: Is it always unreasonable for a policeman to seize a person and subject
him to a limited search for weapons when there is no probable cause for arrest?
HOLDING: An officer is justified in conducting a carefully limited search of persons
whom he reasonably suspects to be dangerous in order to discover any weapons which
might be used to assault him or other nearby, even in the absence of probable cause for
arrest and any weapons seized may be introduced in evidence.
REASONING: (Warren, C.J.) No. An officer is justified in conducting a carefully
limited search of persons whom he reasonably suspects to be dangerous in order to
discover any weapons which might be used to assault him or other nearby, even in the
absence of probable cause for arrest. The exclusionary rule has limitations as a tool of
judicial control. In some contexts, the rule will not be effective as a deterrent, and will
potentially exact a high toll in human injury. The government's interest in preventing
harm must be balanced against the invasion into a person's privacy. The policeman
should use an objective test, and be able to point to specific and articulable facts which
reasonably justify the intrusion. Standard would the facts available to the officer at the
moment of the seizure or the search Warrant a man of reasonable caution in the belief
that the action taken was appropriate? Anything less would invite intrusions upon
constitutionally protected rights! . The Court went on to say that, effective crime
prevention and detection is a governmental interest in appropriate circumstances for
purposes of investigating possible criminal behavior even though there is no probable
cause to make an arrest. It would be unreasonable to require that the policeman take
unnecessary risks. He has a need to protect himself and others in situations where he
lacks probable cause for arrest. In this case, nothing in the conduct of D and his friends
dispelled the officer's reasonable fear that they were armed. Affirmed, for P.
CONCURRENCE: (Harlan, J.) An officer must have constitutional grounds on which to
insist on an encounter, to make a forcible stop. The right to frisk must be immediate and
automatic if the reason for the stop is an articulable suspicion of a crime of violence.
CONCURRENCE: (White, J.) A policeman can address questions to anyone on the
streets, but citizens are not obliged to answer, and answers may not be compelled. A
refusal to answer is no basis for an arrest, but it may be a basis for continued observation.
DISSENT: (Douglas, J.) Infringement of one's personal liberty is only reasonable if
probable cause is present. The majority gives a policeman more authority to make a
seizure and conduct a search than a judge has.
CRITICAL SUMMARY: This case represents a delineation between a reasonable belief
and a reasonable suspicion. Probable cause= reasonable belief. Stop and Frisk =
reasonable suspicion backed by articulable facts.
1. United States v. Sokolow
490 U.S. 1 (1989)
Facts: Defendant was detained at the Honolulu Airport by DEA agents who suspected him
of being a drug trafficker. They searched defendant’s carry-on luggage and found large
quantities of cocaine. The agents did not secure a warrant before searching the luggage
and they claimed that they had reasonable suspicion to conduct the search. In particular,
agents claimed that the following factors gave them the reasonable suspicion:
o
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Defendant paid over $2K for his tickets in cash;
Page 27
o
o
o
o
o
Defendant was traveling under a false name;
Defendant traveled to Miami, a city known for drug trade;
After a long flight from Hawaii to Miami, defendant stayed in Miami for only 48
hours;
Defendant appeared very nervous during the flight; and
Defendant did not check in any of his luggage.
Issue: 1. Did the search violate the Fourth Amendment? 2. Did the officers have reasonable suspicion to
perform the warrantless search?
Holding: 1. No; 2. Yes
Reasoning: The Court held that that officers had reasonable suspicion that Defendant was engaged in
wrongdoing. The Court reasoned that the police can stop and briefly detain a person for investigative
purposes if they have a reasonable suspicion supported by articulable facts that criminal activity may be
afoot, even if they lack probable cause under the Fourth Amendment. The Court noted that reasonable
suspicion entails some minimal level of objective justification for making a stop- that is, something more
than an incohate and unparticularized suspicion or hunch, but less than the level of suspicion required for
probable cause. Here, the Court reasoned that DEA agents had a number of factors (listed above) that
made them suspicious. Even though individual factors may not be enough for reasonable suspicion, when
added together, they are indeed enough for reasonable suspicion. Therefore, the search was
constitutional under the Fourth Amendment.
Main Points: 1. Police can briefly detain and investigate if reasonable suspicion. 2. Reasonable suspicion
is more than a mere hunch, but less than probable cause.
1.
Minnesota v. Dickerson, 508 U.S. 366 (1993)
Author: Seth
Facts: two Minneapolis police officers were patrolling an area on the city's north side in
a marked squad car. At about 8:15 p.m., one of the officers observed respondent
leaving a 12 unit apartment building on Morgan Avenue North. The officer, having
previously responded to complaints of drug sales in the building's hallways and having
executed several search warrants on the premises, considered the building to be a
notorious "crack house." According to testimony credited by the trial court, respondent
began walking toward the police but, upon spotting the squad car and making eye
contact with one of the officers, abruptly halted and began walking in the opposite
direction. His suspicion aroused, this officer watched as respondent turned and entered
an alley on the other side of the apartment building. Based upon respondent's
seemingly evasive actions and the fact that he had just left a building known for cocaine
traffic, the officers decided to stop respondent and investigate further. The officers
pulled their squad car into the alley and ordered respondent to stop and submit to a
patdown search. The search revealed no weapons, but the officer conducting the
search did take an interest in a small lump in respondent's nylon jacket. The officer then
reached into respondent's pocket and retrieved a small plastic bag containing one fifth
of one gram of crack cocaine. Respondent was arrested and charged in Hennepin
County District Court with possession of a controlled substance.
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Issue: Whether the officer who conducted the search was acting within the lawful
bounds marked by Terry at the time he gained probable cause to believe that the lump
in respondent's jacket was contraband
Holding: No.
Procedural Posture: Before trial, respondent moved to suppress the cocaine. The trial
court first concluded that the officers were justified under Terry v. Ohio in stopping
respondent to investigate whether he might be engaged in criminal activity. The court
further found that the officers were justified in frisking respondent to ensure that he was
not carrying a weapon. Finally, analogizing to the "plain view" doctrine, under which
officers may make a warrantless seizure of contraband found in plain view during a
lawful search for other items, the trial court ruled that the officers' seizure of the cocaine
did not violate the Fourth Amendment. His suppression motion having failed,
respondent proceeded to trial and was found guilty. On appeal, the Minnesota Court of
Appeals reversed. The court agreed with the trial court that the investigative stop and
protective patdown search of respondent were lawful under Terry because the officers
had a reasonable belief based on specific and articulable facts that respondent was
engaged in criminal behavior and that he might be armed and dangerous. The court
concluded, however, that the officers had overstepped the bounds allowed by Terry in
seizing the cocaine. In doing so, the Court of Appeals "decline[d] to adopt the plain feel
exception" to the warrant requirement. The Minnesota Supreme Court affirmed. The US
Supreme Court affirmed.
Reasoning: Terry further held that "[w]hen an officer is justified in believing that the
individual whose suspicious behavior he is investigating at close range is armed and
presently dangerous to the officer or to others," the officer may conduct a patdown
search "to determine whether the person is in fact carrying a weapon." A protective
search must be strictly limited to that which is necessary for the discovery of weapons
which might be used to harm the officer or others nearby. If the police lack probable
cause to believe that an object in plain view is contraband without conducting some
further search of the object the plain view doctrine cannot justify its seizure. The
rationale of the plain view doctrine is that if contraband is left in open view and is
observed by a police officer from a lawful vantage point, there has been no invasion of a
legitimate expectation of privacy and thus no "search" within the meaning of the Fourth
Amendment--or at least no search independent of the initial intrusion that gave the
officers their vantage point. If a police officer lawfully pats down a suspect's outer
clothing and feels an object whose contour or mass makes its identity immediately
apparent, there has been no invasion of the suspect's privacy beyond that already
authorized by the officer's search for weapons; if the object is contraband, its
warrantless seizure would be justified by the same practical considerations that inhere
in the plain view context. Although the officer was lawfully in a position to feel the lump
in respondent's pocket, because Terry entitled him to place his hands upon
respondent's jacket, the court below determined that the incriminating character of the
object was not immediately apparent to him. Rather, the officer determined that the item
was contraband only after conducting a further search, one not authorized by Terry or
by any other exception to the warrant requirement. Because this further search of
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respondent's pocket was constitutionally invalid, the seizure of the cocaine that followed
is likewise unconstitutional.
U.S. Supreme Court
PRESTON v. UNITED STATES, 376 U.S. 364 (1964)
376 U.S. 364
PRESTON v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT.
No. 163.
Argued February 25, 1964.
Decided March 23, 1964.
Petitioner and two companions, who had been seated for several hours in a parked car, were
arrested by the police for vagrancy, searched for weapons, and taken to the police station. The
officers had the car towed to a garage, and soon thereafter they went themselves to the garage,
and for the first time searched the car. Various articles found in the car were later turned over to
federal authorities and used as evidence in a trial in federal court resulting in petitioner's
conviction of conspiracy to rob a federally insured bank. Held: The evidence obtained in the
search of the car without a warrant was inadmissible because, being too remote in time or place
to be treated as incidental to the arrest, it failed to meet the test of reasonableness under the
Fourth Amendment. Pp. 364-368.
305 F.2d 172, reversed and remanded.
Francis M. Shea, by appointment of the Court, 374 U.S. 823 , argued the cause and filed briefs
for petitioner.
Sidney M. Glazer argued the cause for the United States. With him on the brief were Solicitor
General Cox, Assistant Attorney General Miller and Beatrice Rosenberg.
MR. JUSTICE BLACK delivered the opinion of the Court.
Petitioner and three others were convicted in the United States District Court for the Eastern
District of Kentucky on a charge of conspiracy to rob a federally insured bank in violation of 18
U.S.C. 2113, the conviction having been based largely on evidence obtained by the search of a
motorcar. The Court of Appeals for the Sixth Circuit affirmed, rejecting the contentions, timely
made in the trial and appellate courts, that [376 U.S. 364, 365] both the original arrest, on a charge
of vagrancy, and the subsequent search and seizure had violated the Fourth Amendment. 305
F.2d 172. We granted certiorari. 373 U.S. 931 . In the view we take of the case, we need not
decide whether the arrest was valid, since we hold that the search and seizure was not.
The police of Newport, Kentucky, received a telephone complaint at 3 o'clock one morning that
"three suspicious men acting suspiciously" had been seated in a motorcar parked in a business
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district since 10 o'clock the evening before. Four policemen straightaway went to the place
where the car was parked and found petitioner and two companions. The officers asked the three
men why they were parked there, but the men gave answers which the officers testified were
unsatisfactory and evasive. All three men admitted that they were unemployed; all of them
together had only 25 cents. One of the men said that he had bought the car the day before (which
later turned out to be true), but he could not produce any title. They said that their reason for
being there was to meet a truck driver who would pass through Newport that night, but they
could not identify the company he worked for, could not say what his truck looked like, and did
not know what time he would arrive. The officers arrested the three men for vagrancy, searched
them for weapons, and took them to police headquarters. The car, which had not been searched
at the time of the arrest, was driven by an officer to the station, from which it was towed to a
garage. Soon after the men had been booked at the station, some of the police officers went to the
garage to search the car and found two loaded revolvers in the glove compartment. They were
unable to open the trunk and returned to the station, where a detective told one of the officers to
go back and try to get into the trunk. The officer did so, was able to enter the trunk through the
back seat of the car, and in [376 U.S. 364, 366] the trunk found caps, women's stockings (one with
mouth and eye holes), rope, pillow slips, an illegally manufactured license plate equipped to be
snapped over another plate, and other items. After the search, one of petitioner's companions
confessed that he and two others - he did not name petitioner - intended to rob a bank in Berry,
Kentucky, a town about 51 miles from Newport. At this, the police called the Federal Bureau of
Investigation into the case and turned over to the Bureau the articles found in the car. It was the
use of these articles, over timely objections, which raised the Fourth Amendment question we
here consider.
The Amendment provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized."
The question whether evidence obtained by state officers and used against a defendant in a federal trial
was obtained by unreasonable search and seizure is to be judged as if the search and seizure had been
made by federal officers. Elkins v. United States, 364 U.S. 206 (1960). Our cases make it clear that
searches of motorcars must meet the test of reasonableness under the Fourth Amendment before
evidence obtained as a result of such searches is admissible. E. g., Carroll v. United States, 267 U.S. 132
(1925); Brinegar v. United States, 338 U.S. 160 (1949). Common sense dictates, of course, that questions
involving searches of motorcars or other things readily moved cannot be treated as identical to
questions arising out of searches of fixed structures like houses. For this reason, what may be an
unreasonable search of [376 U.S. 364, 367] a house may be reasonable in the case of a motorcar. See
Carroll v. United States, supra, 267 U.S., at 153 . But even in the case of motorcars, the test still is, was
the search unreasonable. Therefore we must inquire whether the facts of this case are such as to fall
within any of the exceptions to the constitutional rule that a search warrant must be had before a
search may be made.
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It is argued that the search and seizure was justified as incidental to a lawful arrest.
Unquestionably, when a person is lawfully arrested, the police have the right, without a search
warrant, to make a contemporaneous search of the person of the accused for weapons or for the
fruits of or implements used to commit the crime. Weeks v. United States, 232 U.S. 383, 392
(1914); Agnello v. United States, 269 U.S. 20, 30 (1925). This right to search and seize without a
search warrant extends to things under the accused's immediate control, Carroll v. United States,
supra, 267 U.S., at 158 , and, to an extent depending on the circumstances of the case, to the
place where he is arrested, Agnello v. United States, supra, 269 U.S., at 30 ; Marron v. United
States, 275 U.S. 192, 199 (1927); United States v. Rabinowitz, 339 U.S. 56, 61 -62 (1950). The
rule allowing contemporaneous searches is justified, for example, by the need to seize weapons
and other things which might be used to assault an officer or effect an escape, as well as by the
need to prevent the destruction of evidence of the crime - things which might easily happen
where the weapon or evidence is on the accused's person or under his immediate control. But
these justifications are absent where a search is remote in time or place from the arrest. Once an
accused is under arrest and in custody, then a search made at another place, without a warrant, is
simply not incident to the arrest. Agnello v. United States, supra, 269 U.S., at 31 . Here, we may
assume, as the Government urges, that, either because the arrests were valid or because the
police had [376 U.S. 364, 368] probable cause to think the car stolen, the police had the right to
search the car when they first came on the scene. But this does not decide the question of the
reasonableness of a search at a later time and at another place. See Stoner v. California, post, p.
483. The search of the car was not undertaken until petitioner and his companions had been
arrested and taken in custody to the police station and the car had been towed to the garage. At
this point there was no danger that any of the men arrested could have used any weapons in the
car or could have destroyed any evidence of a crime - assuming that there are articles which can
be the "fruits" or "implements" of the crime of vagrancy. Cf. United States v. Jeffers, 342 U.S.
48, 51 -52 (1951). Nor, since the men were under arrest at the police station and the car was in
police custody at a garage, was there any danger that the car would be moved out of the locality
or jurisdiction. See Carroll v. United States, supra, 267 U.S., at 153 . We think that the search
was too remote in time or place to have been made as incidental to the arrest and conclude,
therefore, that the search of the car without a warrant failed to meet the test of reasonableness
under the Fourth Amendment, rendering the evidence obtained as a result of the search
inadmissible.
Reversed and remanded. [376 U.S. 364, 369]
1.
South Dakota v. Opperman, 428 U.S. 364 (1976)
Author: Seth
Facts: Local ordinances prohibit parking in certain areas of downtown Vermillion, S. D.,
between the hours of 2 a.m. and 6 a.m. During the early morning hours of December
10, 1973, a Vermillion police officer observed respondent's unoccupied vehicle illegally
parked in the restricted zone. At approximately 3 a.m., the officer issued an overtime
parking ticket and placed it on the car's windshield. The citation warned: "Vehicles in
violation of any parking ordinance may be towed from the area."
At approximately 10 o'clock on the same morning, another officer issued a second ticket
for an overtime parking violation. These circumstances were routinely reported to police
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headquarters, and after the vehicle was inspected, the car was towed to the city
impound lot.
From outside the car at the impound lot, a police officer observed a watch on the
dashboard and other items of personal property located on the back seat and back
floorboard. At the officer's direction, the car door was then unlocked and, using a
standard inventory form pursuant to standard police procedures, the officer inventoried
the contents of the car, including the contents of the glove compartment which was
unlocked. There he found marihuana contained in a plastic bag. All items, including the
contraband, were removed to the police department for safekeeping.1 During the late
afternoon of December 10, respondent appeared at the police department to claim his
property. The marihuana was retained by police.
Procedural Posture: Respondent was subsequently arrested on charges of
possession of marihuana. His motion to suppress the evidence yielded by the inventory
search was denied; he was convicted after a jury trial and sentenced to a fine of $100
and 14 days' incarceration in the county jail. On appeal, the Supreme Court of South
Dakota reversed the conviction. 228 N.W.2d 152. The court concluded that the
evidence had been obtained in violation of the Fourth Amendment prohibition against
unreasonable searches and seizures. We granted certiorari and we reverse.
Issue(s): Whether a warrantless inventory search of an automobile when it is
impounded, is a violation of the Fourth Amendment?
Judgment/Disposition: Reversed and remanded
Holding: No
Reasoning: The court reasoned that when it comes to automobiles, people have less of
a reasonable expectation of privacy than that relating to their home or office. Also,
automobiles, unlike homes, are subjected to pervasive and continuing governmental
regulation and controls, including periodic inspection and licensing requirements.
Moreover, the expectation of privacy as to automobiles is further diminished by the
obviously public nature of automobile travel. As far as the issue of impoundment goes,
the court held that when vehicles are impounded, local police departments generally
follow a routine practice of securing and inventorying the automobile’s contents. These
procedures developed in response to three distinct needs: (1) The protection of the
owner’s property while it remains in police custody (2) the protection of the police
against claims or disputes over lost or stolen property, and (3) the protection of the
police from potential danger, such as incidents of theft or vandalism. In addition, police
frequently attempt to determine whether a vehicle has been stolen and thereafter
abandoned. Lastly, in applying the reasonableness standard adopted by the Framers,
this Court has consistently sustained police intrusions into automobiles impounded or
otherwise in lawful police custody where the process is aimed at securing or protecting
the car and its contents.
Concurrence: Justice Powell wrote a concurring opinion in which he stated that the
routine inventory search under consideration in this case does not fall within any of the
established exceptions to the warrant requirement. A warrant may issue only upon
“probable cause”. In the criminal context the requirement of a warrant protects the
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individual’s legitimate expectation of privacy against the overzealous police officer.
1.
United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572
(1982)
Author: Seth
Facts: An informant, who proved to be reliable, telephoned Detective Marcum and
advised him that an individual known as “Bandit” was selling illegal drugs out of the
trunk of his car. The informant gave the detective a detailed description of “Bandit” and
the vehicle. Detective Marcum immediately drove to the area with Detective Cassidy
and Sergeant Gonzales, and they spotted a vehicle matching the description parked in
front of 439 Ridge Street. A license check disclosed that the car was registered to Albert
Ross. A computer check on Ross revealed that he fit the informant’s description and
used the alias “Bandit”. In two passes through the neighborhood the officers did not
observe anyone matching the informant’s description. TO avoid altering persons on the
street, they left the area. The officers returned give minutes later and observed the
maroon Malibu turning off Ridge Street onto Fourth Street. They pulled alongside the
Malibu, noticed the driver matched the informant’s description, and stopped the car.
Marcum and Cassidy told the driver, Albert Ross, to get out of the vehicle. While they
searched Ross, Sergeant Gonzales discovered a bullet on the car’s front seat. He
searched the interior of the car and found a pistol in the glove compartment. Ross then
was arrested and handcuffed. Detective Cassidy took Ross’s keys and opened the
trunk, where he found a closed brown paper bag. He opened the bag and discovered a
number of glassine bags containing a white powdered. Cassidy replaced the bag,
closed the trunk, and drove the car to headquarters. At the police station Cassidy
thoroughly searched the car. In addition to the “lunch-type” brown paper bag, Cassidy
found in the trunk a zippered red leather pouch. He unzipped the pouch and discovered
3,200 in cash. The police laboratory later determined that the powder in the bag was
heroin. No warrant was obtained.
Procedural Posture: Ross was charged was possession of heroin with intent to
distribute. At trial he moved to suppress the heroin found in the paper bag and the
currency found in the leather pouch. District Court denied the motion to suppress. Court
of Appeals reversed the conviction, holding that the police had probable cause to stop
and search Ross’ car and that, under Carrol and Chambers, the officers lawfully could
search the automobile, including its trunk without a warrant. However, with regard to the
issue of a container found in an automobile depends on whether the owner possesses a
reasonable expectation of privacy in its contents. Applying that test (Rakas), the court
held that the warrantless search of the paper bag was valid but the search of the leather
pouch was not. The court remanded for a new trial at which the items taken from the
paper bag, but not those from the leather pouch, could be admitted. The court than
voted to rehear the case and held that the police should not have opened either
container without first obtaining a warrant. They reasoned that “no specific, welldelineated exception called to our attention permits the police to dispense with a
warrant to open and search ‘unworthy’ containers”. They further held that the Fourth
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Amendment Warrant requirement forbids the warrantless opening of a closed, opaque
paper bag to the same extent that it forbids the warrantless opening of a small unlocked
suitcase or zippered leather pouch.
Issue(s): Whether the police, who have legitimately stopped an automobile and who
have probable cause to believe that contraband is concealed somewhere within it, may
conduct a probing search of compartments and containers within the vehicle whose
contents are not in plain view.
Judgment/Disposition: Reversed and remanded
Holding: They may conduct a search of the vehicle that is as thorough as a magistrate
could authorize in a warrant “particularly describing the place to be searched”.
Reasoning: The majority went back to their reasoning in Chadwick, in which they held
that absent exigent circumstances, the warrantless search of a double-locked luggage
just placed in the trunk of a parked vehicle is a violation of the Fourth Amendment and
not justified under the “automobile exception”. The court also made reference to
Sanders, which was factually similar to Chadwick and the ruling was the same. The
majority said that this present case did not compare to the others, because there was
no ‘target’ container that had been observed being placed in the car, but rather probable
cause to believe that contraband was somewhere in the car. The majority held that the
permissible scope of the warrantless search “is defined by the object of the search and
the place in which there is probable cause to believe that it may be found” This situation
justified that the automobile exception took precedent.”If probable cause justifies the
search of a lawfully stopped vehicle [under the ‘automobile exception’], it justifies the
search of every part of the vehicle and its contents that may conceal the object of the
search. The court has clarified that the Ross rule applies to all containers found in a car,
even if the container belongs to a person not linked to the vehicle, such as a passenger
of the suspect-driver or a person not in the vehicle at all. The court also compared the
scope of a search of an automobile to that of a home. For a home, a warrant, supported
by probable cause and which meets the particularity requirements of the Fourth
Amendment, ordinarily is required. However, once the warrant is authorized, the police
may search “the entire area in which the object of the search may be found and is not
limited by the possibility that separate acts of entry or opening may be required to
complete the search”. Therefore, it is safe to conclude that if the police had probable
cause to search a container, which was then placed in an automobile, ChadwickSanders applied, and the police needed a warrant to search the container. In contrast, if
the police had probable cause to search a car, and a container happened to be found
during the lawful search, the automobile exception applied, and the container could be
opened as part of the car search.
1.
Michigan Department of State Police v. Sitz (p.491) 1990
Procedural Background: Trial Court (Sitz); program violated 4th amendment. MI Court of appeals affirmed. MI Supreme Court denied
review. TC and COA court both used the balancing test.
Facts: Cops pulled over people for signs of drinking. Brief 30 second stops. If suspicion arose; do field test then breathalyzer; then arrest.
This guy got arrest. Only 1.6% of people stopped that day were arrested.
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Issues: Whether a State’s use of highway sobriety checkpoints violates the 4th and 14th amendments.
Rule: Balancing test of interests under 4th amendment. Sober people interests (NOT DRUNK) v. interests of Government.
Analysis:
Defendant’s Argument: 4th amendment seizure occur when a vehicle is stopped at checkpoint!
Plaintiff’s Argument: We have a legitimate governmental interest to keep highways safe.
Conclusion: Judgment of the Michigan Court of Appeals is reversed and remanded for further proceedings consistent with this opinion.
Holding: The balance of the State’s interest in preventing drunken driving, the extent to which this 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.
We therefore hold that it is consistent with the 4th amendment.
Concurrences: None listed.
Dissents: (STEVENS, BRENNAN, MARSHALL) : (1) Could harass drivers who have speech impediments or bloodshot eyes, etc… (2) Case is
not analogous to Martinez-Fuerte b/c these are surprise stops at night! (3) Holding gives no weight to citizen’s interest in freedom from
suspicionless unannounced investigatory seizures.
Florida v. Bostick
Facts of the Case:
In Broward County, Florida, Sheriff's Department officers regularly boarded buses during stops
to ask passenger for permission to search their luggage. Terrance Bostick, a passenger, was
questioned by two officers who sought permission to search his belongings and advised him of
his right to refuse. After obtaining Bostick's permission, the officers searched his bags, found
cocaine, and arrested him on drug trafficking charges. Bostick filed a motion to suppress the
evidence on the ground that it was illegally obtained, but the trial court denied the motion.
Following an affirmance and certification from the Florida Court of Appeals, the State Supreme
Court held that the bus searches were per se unconstitutional because police did not afford
passengers the opportunity to "leave the bus" in order to avoid questioning. Florida appealed and
the Supreme Court granted certiorari.
Question:
Is the acquisition of evidence during random bus searches, conducted pursuant to passengers'
consent, a per se violation of the Fourth Amendment's protection against unconstitutional search
and seizure?
Conclusion:
No. The Court, in a 6-to-3 decision, noted that when deciding if a search request is overly
coercive, within a confined space such as a bus, one must not look at whether a party felt "free to
leave," but whether a party felt free to decline or terminate the search encounter. The Court held
that in the absence of intimidation or harassment, Bostick could have refused the search request.
Moreover, the fact that he knew the search would produce contraband had no bearing on whether
his consent was voluntarily obtained. The test of whether a "reasonable person" felt free to
decline or terminate a search presupposes his or her innocence.
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Decisions
Decision: 6 votes for Florida, 3 vote(s) against
Legal provision: Amendment 4: Fourth Amendment
Miranda v. Arizona 384 U.S. 436 (1966).
Author:- Libby
STATEMENT OF THE CASE: This was an appeal from a conviction for kidnapping and rape.
STATEMENT OF THE FACTS: Miranda (D) was arrested and taken to the police station
where officers questioned him for two hours. D signed a confession. The confession stated that it
was made voluntarily and that D had full knowledge of his legal rights. D's confession was used
against him at trial and over D's objection. D was convicted of rape and kidnapping. The state
supreme court affirmed the conviction. D appealed.
LEGAL ISSUE: Must law enforcement officials inform an accused of his constitutional rights?
Are statements obtained from an individual subjected to custodial police interrogation admissible
if he has not been notified of his privilege under the 5th Amendment not to be compelled to
incriminate himself?
HOLDING: Incriminating statements made by an individual are only admissible if the following
safeguards have been taken; and/or, when a person is taken into custody or otherwise deprived of
his freedom, the following warnings must be given: he has the right to remain silent; that
anything he says can be used against him in a court of law; that he has the right to have an
attorney present; and if he cannot afford an attorney one will be appointed for him.
REASONING: (Warren, C.J.) Yes. When a person is taken into custody or otherwise deprived
of his freedom, the following warnings must be given: he has the right to remain silent; that
anything he says can be used against him in a court of law; that he has the right to have an
attorney present; and if he cannot afford an attorney one will be appointed for him. The fifth
amendment privilege against self incrimination is jeopardized when a person is taken into
custody or otherwise deprived of his freedom. Once these warnings have been given, a person
may knowingly and intelligently waive his rights and agree to answer questions or make a
statement. No evidence obtained as a result of interrogation can be used against a person unless
the prosecution has shown that the person had been informed of his rights. If a person indicates a
desire to remain silent or have an attorney present at any time during questioning, the
interrogation must cease or cease until an attorney is p! resent. The admissibility of volunteered
confessions or statements is not affected by this decision. If the interrogation continues without
the presence of an attorney, the state has a heavy burden to demonstrate that the defendant
knowingly and intelligently waived his privilege. A valid waiver is not presumed simply from
silence. Warnings are a judicial prophylactic to protect the fundamental right against compelled
self-incrimination because of the oppressive nature of station house questioning. This case does
not hamper police officers in investigating crime because general on-the-scene questioning is not
affected. Conviction reversed.
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Dissent: (Harlan, Justice) The new rules are not designed to guard against police brutality or
other unmistakably banned forms of coercion. The thrust of the new rules is to negate all
pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any
confession at all.
Dissent: (White, Justice) The Fifth Amendment forbids only self-incrimination only if it is
compelled. The core of the majority's opinion is that there is compulsion inherent in custodial
surroundings and that no statement made while in custody can be the product of free choice
unless the protective devices as described by the court are used.
CRITICAL SUMMARY: This is probably the most cited case in legal history.
U.S. Supreme Court
ESCOBEDO v. ILLINOIS, 378 U.S. 478 (1964)
378 U.S. 478
ESCOBEDO v. ILLINOIS.
CERTIORARI TO THE SUPREME COURT OF ILLINOIS.
No. 615.
Argued April 29, 1964.
Decided June 22, 1964.
Petitioner, a 22-year-old of Mexican extraction, was arrested with his sister and taken to police headquarters for interrogation in connection
with the fatal shooting, about 11 days before, of his brother-in-law. He had been arrested shortly after the shooting, but had made no
statement, and was released after his lawyer obtained a writ of habeas corpus from a state court. Petitioner made several requests to see his
lawyer, who, though present in the building, and despite persistent efforts, was refused access to his client. Petitioner was not advised by the
police of his right to remain silent and, after persistent questioning by the police, made a damaging statement to an Assistant State's Attorney
which was admitted at the trial. Convicted of murder, he appealed to the State Supreme Court, which affirmed the conviction. Held: Under
the circumstances of this case, where a police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a
particular suspect in police custody who has been refused an opportunity to consult with his counsel and who has not been warned of his
constitutional right to keep silent, the accused has been denied the assistance of counsel in violation of the Sixth and Fourteenth
Amendments; and no statement extracted by the police during the interrogation may be used against him at a trial. Crooker v. California, 357
U.S. 433 , and Cicenia v. Lagay, 357 U.S. 504 , distinguished, and to the extent that they may be inconsistent with the instant case, they are
not controlling. Pp. 479-492.
28 Ill. 2d 41, 190 N. E. 2d 825, reversed and remanded.
Barry L. Kroll argued the cause for petitioner. With him on the brief was Donald M. Haskell.
James R. Thompson argued the cause for respondent. With him on the brief were Daniel P. Ward and Elmer C. Kissane.
Bernard Weisberg argued the cause for the American Civil Liberties Union, as amicus curiae, urging reversal. With him on the brief was
Walter T. Fisher. [378 U.S. 478, 479]
MR. JUSTICE GOLDBERG delivered the opinion of the Court.
The critical question in this case is whether, under the circumstances, the refusal by the police to honor petitioner's request to consult with
his lawyer during the course of an interrogation constitutes a denial of "the Assistance of Counsel" in violation of the Sixth Amendment to the
Constitution as "made obligatory upon the States by the Fourteenth Amendment," Gideon v. Wainwright, 372 U.S. 335, 342 , and thereby
renders inadmissible in a state criminal trial any incriminating statement elicited by the police during the interrogation.
On the night of January 19, 1960, petitioner's brother-in-law was fatally shot. In the early hours of the next morning, at 2:30 a.m., petitioner
was arrested without a warrant and interrogated. Petitioner made no statement to the police and was released at 5 that afternoon pursuant to
a state court writ of habeas corpus obtained by Mr. Warren Wolfson, a lawyer who had been retained by petitioner.
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On January 30, Benedict DiGerlando, who was then in police custody and who was later indicted for the murder along with petitioner, told
the police that petitioner had fired the fatal shots. Between 8 and 9 that evening, petitioner and his sister, the widow of the deceased, were
arrested and taken to police headquarters. En route to the police station, the police "had handcuffed the defendant behind his back," and "one
of the arresting officers told defendant that DiGerlando had named him as the one who shot" the deceased. Petitioner testified, without
contradiction, that the "detectives said they had us pretty well, up pretty tight, and we might as well admit to this crime," and that he replied,
"I am sorry but I would like to have advice from my lawyer." A police officer testified that although petitioner was not formally charged "he
was in custody" and "couldn't walk out the door." [378 U.S. 478, 480]
Shortly after petitioner reached police headquarters, his retained lawyer arrived. The lawyer described the ensuing events in the following
terms:
"On that day I received a phone call [from "the mother of another defendant"] and pursuant to that phone call I went to the
Detective Bureau at 11th and State. The first person I talked to was the Sergeant on duty at the Bureau Desk, Sergeant Pidgeon. I
asked Sergeant Pidgeon for permission to speak to my client, Danny Escobedo. . . . Sergeant Pidgeon made a call to the Bureau
lockup and informed me that the boy had been taken from the lockup to the Homicide Bureau. This was between 9:30 and 10:00
in the evening. Before I went anywhere, he called the Homicide Bureau and told them there was an attorney waiting to see
Escobedo. He told me I could not see him. Then I went upstairs to the Homicide Bureau. There were several Homicide Detectives
around and I talked to them. I identified myself as Escobedo's attorney and asked permission to see him. They said I could not. . . .
The police officer told me to see Chief Flynn who was on duty. I identified myself to Chief Flynn and asked permission to see my
client. He said I could not. . . . I think it was approximately 11:00 o'clock. He said I couldn't see him because they hadn't completed
questioning. . . . [F]or a second or two I spotted him in an office in the Homicide Bureau. The door was open and I could see
through the office. . . . I waved to him and he waved back and then the door was closed, by one of the officers at Homicide. 1 There
were four or five officers milling [378 U.S. 478, 481] around the Homicide Detail that night. As to whether I talked to
Captain Flynn any later that day, I waited around for another hour or two and went back again and renewed by [sic] request to see
my client. He again told me I could not. . . . I filed an official complaint with Commissioner Phelan of the Chicago Police
Department. I had a conversation with every police officer I could find. I was told at Homicide that I couldn't see him and I would
have to get a writ of habeas corpus. I left the Homicide Bureau and from the Detective Bureau at 11th and State at approximately
1:00 A.M. [Sunday morning] I had no opportunity to talk to my client that night. I quoted to Captain Flynn the Section of the
Criminal Code which allows an attorney the right to see his client." 2
Petitioner testified that during the course of the interrogation he repeatedly asked to speak to his lawyer and that the police said that his
lawyer "didn't want to see" him. The testimony of the police officers confirmed these accounts in substantial detail.
Notwithstanding repeated requests by each, petitioner and his retained lawyer were afforded no opportunity to consult during the course of
the entire interrogation. At one point, as previously noted, petitioner and his attorney came into each other's view for a few moments but the
attorney was quickly ushered away. Petitioner testified "that he heard a detective telling the attorney the latter would not be allowed to talk to
[him] `until they [378 U.S. 478, 482] were done'" and that he heard the attorney being refused permission to remain in the adjoining
room. A police officer testified that he had told the lawyer that he could not see petitioner until "we were through interrogating" him.
There is testimony by the police that during the interrogation, petitioner, a 22-year-old of Mexican extraction with no record of previous
experience with the police, "was handcuffed" 3 in a standing position and that he "was nervous, he had circles under his eyes and he was
upset" and was "agitated" because "he had not slept well in over a week."
It is undisputed that during the course of the interrogation Officer Montejano, who "grew up" in petitioner's neighborhood, who knew his
family, and who uses "Spanish language in [his] police work," conferred alone with petitioner "for about a quarter of an hour. . . ." Petitioner
testified that the officer said to him "in Spanish that my sister and I could go home if I pinned it on Benedict DiGerlando," that "he would see
to it that we would go home and be held only as witnesses, if anything, if we had made a statement against DiGerlando . . ., that we would be
able to go home that night." Petitioner testified that he made the statement in issue because of this assurance. Officer Montejano denied
offering any such assurance.
A police officer testified that during the interrogation the following occurred:
"I informed him of what DiGerlando told me and when I did, he told me that DiGerlando was [lying] and I said, `Would you care
to tell DiGerlando that?' and he said, `Yes, I will.' So, I [378 U.S. 478, 483] brought . . . Escobedo in and he confronted
DiGerlando and he told him that he was lying and said, `I didn't shoot Manuel, you did it.'"
In this way, petitioner, for the first time, admitted to some knowledge of the crime. After that he made additional statements further
implicating himself in the murder plot. At this point an Assistant State's Attorney, Theodore J. Cooper, was summoned "to take" a statement.
Mr. Cooper, an experienced lawyer who was assigned to the Homicide Division to take "statements from some defendants and some
prisoners that they had in custody," "took" petitioner's statement by asking carefully framed questions apparently designed to assure the
admissibility into evidence of the resulting answers. Mr. Cooper testified that he did not advise petitioner of his constitutional rights, and it is
undisputed that no one during the course of the interrogation so advised him.
Petitioner moved both before and during trial to suppress the incriminating statement, but the motions were denied. Petitioner was convicted
of murder and he appealed the conviction.
The Supreme Court of Illinois, in its original opinion of February 1, 1963, held the statement inadmissible and reversed the conviction. The
court said:
"[I]t seems manifest to us, from the undisputed evidence and the circumstances surrounding defendant at the time of his
statement and shortly prior thereto, that the defendant understood he would be permitted to go home if he gave the statement and
would be granted an immunity from prosecution."
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Compare Lynumn v. Illinois, 372 U.S. 528 .
The State petitioned for, and the court granted, rehearing. The court then affirmed the conviction. It said: "[T]he [378 U.S. 478, 484]
officer denied making the promise and the trier of fact believed him. We find no reason for disturbing the trial court's finding that the
confession was voluntary." 4 28 Ill. 2d 41, 45-46, 190 N. E. 2d 825, 827. The court also held, on the authority of this Court's decisions in
Crooker v. California, 357 U.S. 433 , and Cicenia v. Lagay, 357 U.S. 504 , that the confession was admissible even though "it was obtained
after he had requested the assistance of counsel, which request was denied." 28 Ill. 2d, at 46, 190 N. E. 2d, at 827. We granted a writ of
certiorari to consider whether the petitioner's statement was constitutionally admissible at his trial. 375 U.S. 902 . We conclude, for the
reasons stated below, that it was not and, accordingly, we reverse the judgment of conviction.
In Massiah v. United States, 377 U.S. 201 , this Court observed that "a Constitution which guarantees a defendant the aid of counsel at . . .
trial could surely vouchsafe no less to an indicted defendant under interrogation by the police in a completely extrajudicial proceeding.
Anything less . . . might deny a defendant `effective representation by counsel at the only stage when [378 U.S. 478, 485] legal aid
and advice would help him.'" Id., at 204, quoting DOUGLAS, J., concurring in Spano v. New York, 360 U.S. 315, 326 .
The interrogation here was conducted before petitioner was formally indicted. But in the context of this case, that fact should make no
difference. When petitioner requested, and was denied, an opportunity to consult with his lawyer, the investigation had ceased to be a general
investigation of "an unsolved crime." Spano v. New York, 360 U.S. 315, 327 (STEWART, J., concurring). Petitioner had become the accused,
and the purpose of the interrogation was to "get him" to confess his guilt despite his constitutional right not to do so. At the time of his arrest
and throughout the course of the interrogation, the police told petitioner that they had convincing evidence that he had fired the fatal shots.
Without informing him of his absolute right to remain silent in the face of this accusation, the police urged him to make a statement. 5 As this
Court observed many years ago:
"It cannot be doubted that, placed in the position in which the accused was when the statement was made to him that the other
suspected person had charged him with crime, the result was to produce upon his mind the fear that if he remained silent it would
be considered an admission of guilt, and therefore render certain his being committed for trial as the guilty person, and it cannot
be conceived that the converse impression would not also have naturally [378 U.S. 478, 486] arisen, that by denying there
was hope of removing the suspicion from himself." Bram v. United States, 168 U.S. 532, 562 .
Petitioner, a layman, was undoubtedly unaware that under Illinois law an admission of "mere" complicity in the murder plot was legally as
damaging as an admission of firing of the fatal shots. Illinois v. Escobedo, 28 Ill. 2d 41, 190 N. E. 2d 825. The "guiding hand of counsel" was
essential to advise petitioner of his rights in this delicate situation. Powell v. Alabama, 287 U.S. 45, 69 . This was the "stage when legal aid and
advice" were most critical to petitioner. Massiah v. United States, supra, at 204. It was a stage surely as critical as was the arraignment in
Hamilton v. Alabama, 368 U.S. 52 , and the preliminary hearing in White v. Maryland, 373 U.S. 59 . What happened at this interrogation
could certainly "affect the whole trial," Hamilton v. Alabama, supra, at 54, since rights "may be as irretrievably lost, if not then and there
asserted, as they are when an accused represented by counsel waives a right for strategic purposes." Ibid. It would exalt form over substance
to make the right to counsel, under these circumstances, depend on whether at the time of the interrogation, the authorities had secured a
formal indictment. Petitioner had, for all practical purposes, already been charged with murder.
The New York Court of Appeals, whose decisions this Court cited with approval in Massiah, 377 U.S. 201 , at 205, has recently recognized
that, under circumstances such as those here, no meaningful distinction can be drawn between interrogation of an accused before and after
formal indictment. In People v. Donovan, 13 N. Y. 2d 148, 193 N. E. 2d 628, that court, in an opinion by Judge Fuld, held that a "confession
taken from a defendant, during a period of detention [prior to indictment], after his attorney had requested and been denied access [378
U.S. 478, 487]
to him" could not be used against him in a criminal trial. 6 Id., at 151, 193 N. E. 2d, at 629. The court observed that it
"would be highly incongruous if our system of justice permitted the district attorney, the lawyer representing the State, to extract a confession
from the accused while his own lawyer, seeking to speak with him, was kept from him by the police." Id., at 152, 193 N. E. 2d, at 629. 7
In Gideon v. Wainwright, 372 U.S. 335 , we held that every person accused of a crime, whether state or federal, is entitled to a lawyer at trial.
8 The rule sought by the State here, however, would make the trial no more than an appeal from the interrogation; and the "right to use
counsel at the formal trial [would be] a very hollow thing [if], for all practical purposes, the conviction is already assured by pretrial
examination." In re Groban, 352 U.S. 330 , [378 U.S. 478, 488] 344 (BLACK, J., dissenting). 9 "One can imagine a cynical prosecutor
saying: `Let them have the most illustrious counsel, now. They can't escape the noose. There is nothing that counsel can do for them at the
trial.'" Ex parte Sullivan, 107 F. Supp. 514, 517-518.
It is argued that if the right to counsel is afforded prior to indictment, the number of confessions obtained by the police will diminish
significantly, because most confessions are obtained during the period between arrest and indictment, 10 and "any lawyer worth his salt will
tell the suspect in no uncertain terms to make no statement to police under any circumstances." Watts v. Indiana, 338 U.S. 49, 59 (Jackson,
J., concurring in part and dissenting in part). This argument, of course, cuts two ways. The fact that many confessions are obtained during
this period points up its critical nature as a "stage when legal aid and advice" are surely needed. Massiah v. United States, supra, at 204;
Hamilton v. Alabama, supra; White v. Maryland, supra. The right to counsel would indeed be hollow if it began at a period when few
confessions were obtained. There is necessarily a direct relationship between the importance of a stage to the police in their quest for a
confession and the criticalness of that stage to the accused in his need for legal advice. Our Constitution, unlike some others, strikes the
balance in favor of the right of the accused to be advised by his lawyer of his privilege against self-incrimination. See Note, 73 Yale L. J. 1000,
1048-1051 (1964).
We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement [378 U.S. 478, 489] which
comes to depend on the "confession" will, in the long run, be less reliable 11 and more subject to abuses 12 than a system which depends on
extrinsic evidence independently secured through skillful investigation. As Dean Wigmore so wisely said:
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"[A]ny system of administration which permits the prosecution to trust habitually to compulsory self-disclosure as a source of
proof must itself suffer morally thereby. The inclination develops to rely mainly upon such evidence, and to be satisfied with an
incomplete investigation of the other sources. The exercise of the power to extract answers begets a forgetfulness of the just
limitations of that power. The simple and peaceful process of questioning breeds a readiness to resort to bullying and to physical
force and torture. If there is a right to an answer, there soon seems to be a right to the expected answer, - that is, to a confession of
guilt. Thus the legitimate use grows into the unjust abuse; ultimately, the innocent are jeopardized by the encroachments of a bad
system. Such seems to have been the course of experience in those legal systems where the privilege was not recognized." 8
Wigmore, Evidence (3d ed. 1940), 309. (Emphasis in original.) [378 U.S. 478, 490]
This Court also has recognized that "history amply shows that confessions have often been extorted to save law enforcement officials the
trouble and effort of obtaining valid and independent evidence . . . ." Haynes v. Washington, 373 U.S. 503, 519 .
We have also learned the companion lesson of history that no system of criminal justice can, or should, survive if it comes to depend for its
continued effectiveness on the citizens' abdication through unawareness of their constitutional rights. No system worth preserving should
have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights. 13 If the exercise of
constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system. 14
We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a
particular suspect, the suspect [378 U.S. 478, 491] has been taken into police custody, the police carry out a process of interrogations
that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer,
and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied "the
Assistance of Counsel" in violation of the Sixth Amendment to the Constitution as "made obligatory upon the States by the Fourteenth
Amendment," Gideon v. Wainwright, 372 U.S., at 342 , and that no statement elicited by the police during the interrogation may be used
against him at a criminal trial.
Crooker v. California, 357 U.S. 433 , does not compel a contrary result. In that case the Court merely rejected the absolute rule sought by
petitioner, that "every state denial of a request to contact counsel [is] an infringement of the constitutional right without regard to the
circumstances of the case." Id., at 440. (Emphasis in original.) In its place, the following rule was announced:
"[S]tate refusal of a request to engage counsel violates due process not only if the accused is deprived of counsel at trial on the
merits, . . . but also if he is deprived of counsel for any part of the pretrial proceedings, provided that he is so prejudiced thereby as
to infect his subsequent trial with an absence of `that fundamental fairness essential to the very concept of justice. . . .' The latter
determination necessarily depends upon all the circumstances of the case." 357 U.S., at 439 -440. (Emphasis added.)
The Court, applying "these principles" to "the sum total of the circumstances [there] during the time petitioner was without counsel," id., at
440, concluded that he had not been fundamentally prejudiced by the denial of his request for counsel. Among the critical circumstances
which distinguish that case from this one are that the petitioner there, but not here, was explicitly advised by the police of his constitutional
right to remain silent and [378 U.S. 478, 492] not to "say anything" in response to the questions, id., at 437, and that petitioner there,
but not here, was a well-educated man who had studied criminal law while attending law school for a year. The Court's opinion in Cicenia v.
Lagay, 357 U.S. 504 , decided the same day, merely said that the "contention that petitioner had a constitutional right to confer with counsel
is disposed of by Crooker v. California . . . ." That case adds nothing, therefore, to Crooker. In any event, to the extent that Cicenia or Crooker
may be inconsistent with the principles announced today, they are not to be regarded as controlling. 15
Nothing we have said today affects the powers of the police to investigate "an unsolved crime," Spano v. New York, 360 U.S. 315, 327
(STEWART, J., concurring), by gathering information from witnesses and by other "proper investigative efforts." Haynes v. Washington, 373
U.S. 503, 519 . We hold only that when the process shifts from investigatory to accusatory - when its focus is on the accused and its purpose is
to elicit a confession - our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult
with his lawyer.
The judgment of the Illinois Supreme Court is reversed and the case remanded for proceedings not inconsistent with this opinion.
Reversed and remanded.
Footnotes
[ Footnote 1 ] Petitioner testified that this ambiguous gesture "could have meant most anything," but that he "took it upon [his] own to think
that [the lawyer was telling him] not to say anything," and that the lawyer "wanted to talk" to him.
[ Footnote 2 ] The statute then in effect provided in pertinent part that: "All public officers . . . having the custody of any person . . . restrained
of his liberty for any alleged cause whatever, shall, except in cases of imminent danger of escape, admit any practicing attorney . . . whom
such person . . . may desire to see or consult . . ." Ill. Rev. Stat. (1959), c. 38, 477. Repealed as of Jan. 1, 1964, by Act approved Aug. 14, 1963,
H. B. No. 851.
[ Footnote 3 ] The trial judge justified the handcuffing on the ground that it "is ordinary police procedure."
[ Footnote 4 ] Compare Haynes v. Washington, 373 U.S. 503, 515 (decided on the same day as the decision of the Illinois Supreme Court
here), where we said: "Our conclusion is in no way foreclosed, as the State contends, by the fact that the state trial judge or the jury may have
reached a different result on this issue. "It is well settled that the duty of constitutional adjudication resting upon this Court requires that the
question whether the Due Process Clause of the Fourteenth Amendment has been violated by admission into evidence of a coerced confession
be the subject of an independent determination here, see, e. g., Ashcraft v. Tennessee, 322 U.S. 143, 147 -148; `we cannot escape the
responsibility of making our own examination of the record,' Spano v. New York, 360 U.S. 315, 316 ." (Emphasis in original.)
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[ Footnote 5 ] Although there is testimony in the record that petitioner and his lawyer had previously discussed what petitioner should do in
the event of interrogation, there is no evidence that they discussed what petitioner should, or could, do in the face of a false accusation that he
had fired the fatal bullets.
[ Footnote 6 ] The English Judges' Rules also recognize that a functional rather than a formal test must be applied and that, under
circumstances such as those here, no special significance should be attached to formal indictment. The applicable Rule does not permit the
police to question an accused, except in certain extremely limited situations not relevant here, at any time after the defendant "has been
charged or informed that he may be prosecuted." 1964. Crim. L. Rev. 166-170 (emphasis supplied). Although voluntary statements obtained
in violation of these rules are not automatically excluded from evidence the judge may, in the exercise of his discretion, exclude them. "Recent
cases suggest that perhaps the judges have been tightening up [and almost] inevitably, the effect of the new Rules will be to stimulate this
tendency." Id., at 182.
[ Footnote 7 ] Canon 9 of the American Bar Association's Canon of Professional Ethics provides that: "A lawyer should not in any way
communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or
compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid
everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law." See
Broeder, Wong Sun v. United States: A Study in Faith and Hope, 42 Neb. L. Rev. 483, 599-604.
[ Footnote 8 ] Twenty-two States including Illinois, urged us so to hold.
[ Footnote 9 ] The Soviet criminal code does not permit a lawyer to be present during the investigation. The Soviet trial has thus been aptly
described as "an appeal from the pretrial investigation." Feifer, Justice in Moscow (1964), 86.
[ Footnote 10 ] See Barrett, Police Practices and the Law - From Arrest to Release or Charge, 50 Cal. L. Rev. 11, 43 (1962).
[ Footnote 11 ] See Committee Print, Subcommittee to Investigate Administration of the Internal Security Act, Senate Committee on the
Judiciary, 85th Cong., 1st Sess., reporting and analyzing the proceedings at the XXth Congress of the Communist Party of the Soviet Union,
February 25, 1956, exposing the false confessions obtained during the Stalin purges of the 1930's. See also Miller v. United States, 320 F.2d
767, 772-773 (opinion of Chief Judge Bazelon); Lifton, Thought Reform and the Psychology of Totalism (1961); Rogge, Why Men Confess
(1959); Schein, Coercive Persuasion (1961).
[ Footnote 12 ] See Stephen, History of the Criminal Law, quoted in 8 Wigmore, Evidence (3d ed. 1940), 312; Report and Recommendations
of the Commissioners' Committee on Police Arrests for Investigation, District of Columbia (1962).
[ Footnote 13 ] Cf. Report of Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice (1963), 10-11: "The
survival of our system of criminal justice and the values which it advances depends upon a constant, searching, and creative questioning of
official decisions and assertions of authority at all stages of the process. . . . Persons [denied access to counsel] are incapable of providing the
challenges that are indispensable to satisfactory operation of the system. The loss to the interests of accused individuals, occasioned by these
failures, are great and apparent. It is also clear that a situation in which persons are required to contest a serious accusation but are denied
access to the tools of contest is offensive to fairness and equity. Beyond these considerations, however, is the fact that [this situation is]
detrimental to the proper functioning of the system of justice and that the loss in vitality of the adversary system, thereby occasioned,
significantly endangers the basic interests of a free community."
[ Footnote 14 ] The accused may, of course, intelligently and knowingly waive his privilege against self-incrimination and his right to counsel
either at a pretrial stage or at the trial. See Johnson v. Zerbst, 304 U.S. 458 . But no knowing and intelligent waiver of any constitutional right
can be said to have occurred under the circumstances of this case.
[ Footnote 15 ] The authority of Cicenia v. Lagay, 357 U.S. 504 , and Crooker v. California, 357 U.S. 433 , was weakened by the subsequent
decisions of this Court in Hamilton v. Alabama, 368 U.S. 52 , White v. Maryland, 373 U.S. 59 , and Massiah v. United States, 377 U.S. 201 (as
the dissenting opinion in the last-cited case recognized).
MR. JUSTICE HARLAN, dissenting.
I would affirm the judgment of the Supreme Court of Illinois on the basis of Cicenia v. Lagay, 357 U.S. 504 , [378 U.S. 478, 493]
decided by this Court only six years ago. Like my Brother WHITE, post, p. 495, I think the rule announced today is most ill-conceived and
that it seriously and unjustifiably fetters perfectly legitimate methods of criminal law enforcement.
MR. JUSTICE STEWART, dissenting.
I think this case is directly controlled by Cicenia v. Lagay, 357 U.S. 504 , and I would therefore affirm the judgment.
Massiah v. United States, 377 U.S. 201 , is not in point here. In that case a federal grand jury had indicted Massiah. He had retained a lawyer
and entered a formal plea of not guilty. Under our system of federal justice an indictment and arraignment are followed by a trial, at which
the Sixth Amendment guarantees the defendant the assistance of counsel. * But Massiah was released on bail, and thereafter agents of the
Federal Government deliberately elicited incriminating statements from him in the absence of his lawyer. We held that the use of these
statements against him at his trial denied him the basic protections of the Sixth Amendment guarantee. Putting to one side the fact that the
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case now before us is not a federal case, the vital fact remains that this case does not involve the deliberate interrogation of a defendant after
the initiation of judicial proceedings against him. The Court disregards this basic difference between the present case and Massiah's, with the
bland assertion that "that fact should make no difference." Ante, p. 485.
It is "that fact," I submit, which makes all the difference. Under our system of criminal justice the institution of formal, meaningful judicial
proceedings, by way of indictment, information, or arraignment, marks the [378 U.S. 478, 494] point at which a criminal
investigation has ended and adversary proceedings have commenced. It is at this point that the constitutional guarantees attach which
pertain to a criminal trial. Among those guarantees are the right to a speedy trial, the right of confrontation, and the right to trial by jury.
Another is the guarantee of the assistance of counsel. Gideon v. Wainwright, 372 U.S. 335 ; Hamilton v. Alabama, 368 U.S. 52 ; White v.
Maryland, 373 U.S. 59 .
The confession which the Court today holds inadmissible was a voluntary one. It was given during the course of a perfectly legitimate police
investigation of an unsolved murder. The Court says that what happened during this investigation "affected" the trial. I had always supposed
that the whole purpose of a police investigation of a murder was to "affect" the trial of the murderer, and that it would be only an
incompetent, unsuccessful, or corrupt investigation which would not do so. The Court further says that the Illinois police officers did not
advise the petitioner of his "constitutional rights" before he confessed to the murder. This Court has never held that the Constitution requires
the police to give any "advice" under circumstances such as these.
Supported by no stronger authority than its own rhetoric, the Court today converts a routine police investigation of an unsolved murder into
a distorted analogue of a judicial trial. It imports into this investigation constitutional concepts historically applicable only after the onset of
formal prosecutorial proceedings. By doing so, I think the Court perverts those precious constitutional guarantees, and frustrates the vital
interests of society in preserving the legitimate and proper function of honest and purposeful police investigation.
Like my Brother CLARK, I cannot escape the logic of my Brother WHITE's conclusions as to the extraordinary implications which emanate
from the Court's opinion in [378 U.S. 478, 495] this case, and I share their views as to the untold and highly unfortunate impact
today's decision may have upon the fair administration of criminal justice. I can only hope we have completely misunderstood what the Court
has said.
[ Footnote * ] "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."
MR. JUSTICE WHITE, with whom MR. JUSTICE CLARK and MR. JUSTICE STEWART join, dissenting.
In Massiah v. United States, 377 U.S. 201 , the Court held that as of the date of the indictment the prosecution is disentitled to secure
admissions from the accused. The Court now moves that date back to the time when the prosecution begins to "focus" on the accused.
Although the opinion purports to be limited to the facts of this case, it would be naive to think that the new constitutional right announced
will depend upon whether the accused has retained his own counsel, cf. Gideon v. Wainright, 372 U.S. 335 ; Griffin v. Illinois, 351 U.S. 12 ;
Douglas v. California, 372 U.S. 353 , or has asked to consult with counsel in the course of interrogation. Cf. Carnley v. Cochran, 369 U.S. 506 .
At the very least the Court holds that once the accused becomes a suspect and, presumably, is arrested, any admission made to the police
thereafter is inadmissible in evidence unless the accused has waived his right to counsel. The decision is thus another major step in the
direction of the goal which the Court seemingly has in mind - to bar from evidence all admissions obtained from an individual suspected of
crime, whether involuntarily made or not. It does of course put us one step "ahead" of the English judges who have had the good sense to
leave the matter a discretionary one with the trial court. * I reject this step and [378 U.S. 478, 496] the invitation to go farther which
the Court has now issued.
By abandoning the voluntary-involuntary test for admissibility of confessions, the Court seems driven by the notion that it is uncivilized law
enforcement to use an accused's own admissions against him at his trial. It attempts to find a home for this new and nebulous rule of due
process by attaching it to the right to counsel guaranteed in the federal system by the Sixth Amendment and binding upon the States by virtue
of the due process guarantee of the Fourteenth Amendment. Gideon v. Wainwright, supra. The right to counsel now not only entitles the
accused to counsel's advice and aid in preparing for trial but stands as an impenetrable barrier to any interrogation once the accused has
become a suspect. From that very moment apparently his right to counsel attaches, a rule wholly unworkable and impossible to administer
unless police cars are equipped with public defenders and undercover agents and police informants have defense counsel at their side. I
would not abandon the Court's prior cases defining with some care and analysis the circumstances requiring the presence or aid of counsel
and substitute the amorphous and wholly unworkable principle that counsel is constitutionally required whenever he would or could be
helpful. Hamilton v. Alabama, 368 U.S. 52 ; White v. Maryland, 373 U.S. 59 ; Gideon v. [378 U.S. 478, 497] Wainwright, supra. These
cases dealt with the requirement of counsel at proceedings in which definable rights could be won or lost, not with stages where probative
evidence might be obtained. Under this new approach one might just as well argue that a potential defendant is constitutionally entitled to a
lawyer before, not after, he commits a crime, since it is then that crucial incriminating evidence is put within the reach of the Government by
the would-be accused. Until now there simply has been no right guaranteed by the Federal Constitution to be free from the use at trial of a
voluntary admission made prior to indictment.
It is incongruous to assume that the provision for counsel in the Sixth Amendment was meant to amend or supersede the self-incrimination
provision of the Fifth Amendment, which is now applicable to the States. Malloy v. Hogan, 378 U.S. 1 . That amendment addresses itself to
the very issue of incriminating admissions of an accused and resolves it by proscribing only compelled statements. Neither the Framers, the
constitutional language, a century of decisions of this Court nor Professor Wigmore provides an iota of support for the idea that an accused
has an absolute constitutional right not to answer even in the absence of compulsion - the constitutional right not to incriminate himself by
making voluntary disclosures.
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Today's decision cannot be squared with other provisions of the Constitution which, in my view, define the system of criminal justice this
Court is empowered to administer. The Fourth Amendment permits upon probable cause even compulsory searches of the suspect and his
possessions and the use of the fruits of the search at trial, all in the absence of counsel. The Fifth Amendment and state constitutional
provisions authorize, indeed require, inquisitorial grand jury proceedings at which a potential defendant, in the absence of counsel, [378
U.S. 478, 498]
is shielded against no more than compulsory incrimination. Mulloney v. United States, 79 F.2d 566, 578 (C. A. 1st Cir.);
United States v. Benjamin, 120 F.2d 521, 522 (C. A. 2d Cir.); United States v. Scully, 225 F.2d 113, 115 (C. A. 2d Cir.); United States v. Gilboy,
160 F. Supp. 442 (D.C. M. D. Pa.). A grand jury witness, who may be a suspect, is interrogated and his answers, at least until today, are
admissible in evidence at trial. And these provisions have been thought of as constitutional safeguards to persons suspected of an offense.
Furthermore, until now, the Constitution has permitted the accused to be fingerprinted and to be identified in a line-up or in the courtroom
itself.
The Court chooses to ignore these matters and to rely on the virtues and morality of a system of criminal law enforcement which does not
depend on the "confession." No such judgment is to be found in the Constitution. It might be appropriate for a legislature to provide that a
suspect should not be consulted during a criminal investigation; that an accused should never be called before a grand jury to answer, even if
he wants to, what may well be incriminating questions; and that no person, whether he be a suspect, guilty criminal or innocent bystander,
should be put to the ordeal of responding to orderly noncompulsory inquiry by the State. But this is not the system our Constitution requires.
The only "inquisitions" the Constitution forbids are those which compel incrimination. Escobedo's statements were not compelled and the
Court does not hold that they were.
This new American judges' rule, which is to be applied in both federal and state courts, is perhaps thought to be a necessary safeguard against
the possibility of extorted confessions. To this extent it reflects a deep-seated distrust of law enforcement officers everywhere, unsupported by
relevant data or current material based upon our own [378 U.S. 478, 499] experience. Obviously law enforcement officers can make
mistakes and exceed their authority, as today's decision shows that even judges can do, but I have somewhat more faith than the Court
evidently has in the ability and desire of prosecutors and of the power of the appellate courts to discern and correct such violations of the law.
The Court may be concerned with a narrower matter: the unknowing defendant who responds to police questioning because he mistakenly
believes that he must and that his admissions will not be used against him. But this worry hardly calls for the broadside the Court has now
fired. The failure to inform an accused that he need not answer and that his answers may be used against him is very relevant indeed to
whether the disclosures are compelled. Cases in this Court, to say the least, have never placed a premium on ignorance of constitutional
rights. If an accused is told he must answer and does not know better, it would be very doubtful that the resulting admissions could be used
against him. When the accused has not been informed of his rights at all the Court characteristically and properly looks very closely at the
surrounding circumstances. See Ward v. Texas, 316 U.S. 547 ; Haley v. Ohio, 332 U.S. 596 ; Payne v. Arkansas, 356 U.S. 560 . I would
continue to do so. But in this case Danny Escobedo knew full well that he did not have to answer and knew full well that his lawyer had
advised him not to answer.
I do not suggest for a moment that law enforcement will be destroyed by the rule announced today. The need for peace and order is too
insistent for that. But it will be crippled and its task made a great deal more difficult, all in my opinion, for unsound, unstated reasons, which
can find no home in any of the provisions of the Constitution.
[ Footnote * ] "[I]t seems from reported cases that the judges have given up enforcing their own rules, for it is no longer the practice to
exclude evidence obtained by questioning in custody. . . . A traditional principle of `fairness' to criminals, which has quite possibly lost some
of [378 U.S. 478, 496] the reason for its existence, is maintained in words while it is disregarded in fact. . . . "The reader may be
expecting at this point a vigorous denunciation of the police and of the judges, and a plea for a return to the Judges' Rules as interpreted in
1930. What has to be considered, however, is whether these Rules are a workable part of the machinery of justice. Perhaps the truth is that
the Rules have been abandoned, by tacit consent, just because they are an unreasonable restriction upon the activities of the police in
bringing criminals to book." Williams, Questioning by the Police: Some Practical Considerations, 1960. Crim. L. Rev. 325, 331-332. See also
1964. Crim. L. Rev. 161-182. [378 U.S. 478, 500]
Katz v. United States, 389 U.S. 347, 88 S.
Ct. 507, 19 L. Ed. 2d 576 (1967)
Facts: FBI agents placed an electronic listening and recording devise to the outside of
the public telephone booth from which Katz had placed calls. Based on the information
obtained from his phone calls, Katz was charged with transmitting wagering information
by telephone from Los Angeles to Miami and Boston, in violation of a federal statute. At
trial he sought to have the conversations omitted, claiming it was a violation of the
Fourth Amendment. Despite his objections the conversations were admitted and Katz
was convicted.
Procedural Posture: The Court of Appeals affirmed his conviction and stated that there
was no violation of the Fourth Amendment because “there was no physical entrance
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into the area occupied by (the petitioner)”.
Issue(s): Whether the private conversations obtained by the government’s use of an
electronic wiretap to a public enclosed telephone booth without a warrant, violated the
Fourth Amendment? And whether a telephone booth is granted the protection of the
Fourth Amendment
Judgment/Disposition: Reversed
Holding: As to the first issue, the court ruled that the conversations were obtained in
violation of the Fourth Amendment. As to the second issue, the court ruled that public
telephone booths are granted the protection of the Fourth Amendment because they are
places in which people have “a reasonable expectation of privacy”.
Majority: Justice Powell, who wrote the majority opinion first stated that the Fourth
Amendment protects people, not places, and that what a person knowingly exposes to
the public, is not subject to Fourth Amendment protection. However, by going into the
phone booth and shutting the door, Katz sought to preserve information. While he might
have been visible to the public, his conversations were not intended to be heard by the
public. The majority rejected the Government’s argument, which was based on the
precedent set forth in Olmstead, in which a search and seizure only pertains to tangible
evidence and not conversations. Furthermore, the government argued that there was no
physical intrusion, unlike Olmstead. The majority rejected this argument as having no
constitutional significance. Lastly, the government argued that they had probable cause
to believe that Katz’s conversations would reveal illegal wrongdoings. The majority held
that if only the government had sought a warrant from a magistrate based upon that
argument alone, it would have been granted. However, the fact that the agents acted
without restraint clearly violated the Fourth Amendment.
Concurring: Justice Harlan wrote a concurring opinion in which he agreed that a
person in an enclosed telephone booth has a reasonable expectation of privacy just as
a man does in his home. He goes on to further elaborate on the statement made by the
majority that “The Fourth Amendment protects people, not places” by phrasing the
question as to what protection does the Fourth Amendment afford to those people. In
answering this he writes that the telephone booth is a place that guarantees temporary
privacy and thus, its occupants expectations of freedom from intrusion are recognized
as reasonable.
Dissenting: Justice Black disagreed with the majorities’ interpretation of the Fourth
Amendment. He insisted that the court go back and examine the crucial language of the
Amendment. He states that the amendment was intended to protect tangible items
since the Framers purpose in limiting the Amendments protection to only tangible items
by providing that no warrants shall issue but those “particularly describing the place to
be searched, and the persons or things to be seized”. Since conversations are neither
of these, they should not be afforded the protection of the Fourth Amendment.
Furthermore, tangible things are already in existence; however, further conversations
that have not yet taken place are certainly not in existence. Justice Black also
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expressed that it was not the courts job to “rewrite” the Amendment so that it is brought
current with this times, but rather that should be left up to the legislative body. Lastly, he
stated that he recognized that wiretapping did not exist during the times when the
Framers were drafting the Amendment; however, eavesdropping did exist then and if
the Framers meant for the Fourth Amendment to apply to eavesdropping, they would
have included that in the language.
Entick v. Carrington
95 Eng. Rep. 807 K.B. 1765
Lord Chief Justice.--I shall not give any opinion at present, because this case, which is of the
utmost consequence to the public, is to be argued again; I shall only just mention a matter which
has slipped the sagacity of the counsel on both sides, that it may be taken notice of upon the next
argument. Suppose a warrant which is against law be granted, such as no justice of peace, or
other magistrate high or low whomsoever, has power to issue, whether that magistrate or justice
who grants such warrant, or the officer who executes it, are within the stat. 24 Geo. 2, c. 44? To
put one case (among an hundred that might happen); suppose a justice of peace issues a warrant
to search a house for stolen goods, and directs it to four of his servants, who search and find no
stolen goods, but seize all the books and papers of the owners of the house, whether in such a
case would the justice of peace, his officers or servants, be within the Stat. 24 Geo. 2? I desire
that every point of this case may be argued to the bottom; for I shall think myself bound, when I
come to give judgment, to give my opinion upon every point in the case.
.....
Curia.--The defendants make two defences; first, that they are within the stat. 24 Geo. 2, c. 44;
2dly, that such warrants have frequently been granted by Secretaries of State ever since the
Revolution, and have never been controverted, and that they are legal; upon both which defences
the defendants rely.
A Secretary of State, who is a Privy Counsellor, if he be a conservator of the peace, whatever
power he has to commit is by the common law: if he be considered only as a Privy Counsellor,
he is the only one at the board who has exercised this authority of late years; if as a conservator,
he never binds to the peace; no other conservator ever did that we can find: he has no power to
administer an oath, or take bail; but yet it must be admitted that he is in the full exercise of this
power to commit, for treason and seditious libels against the Government, whatever was the
original source of that power; as appears from the cases of The Queen and Derby, The King and
Earbury, and Kendale and Roe's case.
We must know what a Secretary of State is, before we can tell whether he is within the stat. 24
Geo. 2, c. 44. He is the keeper of the King's signet wherewith the King's private letters are
signed. 2 Inst. 556. Coke upon Articuli Super Chartas, 28 Ed. 1. Lord Coke's silence is a strong
presumption that no such power as he now exercises was in him at that time; formerly he was not
a Privy Counsellor, or considered as a magistrate; he began to be significant about the time of the
Revolution, and grew great when the princes of Europe sent ambassadors hither; it seems
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inconsistent that a Secretary of State should have power to commit, and no power to administer
an oath, or take bail; who can commit and not have power to examine? the House of Commons
indeed commit without oath, but that is nothing to the present case; there is no account in our
law-books of Secretaries of State, except in the few cases mentioned; he is not to be found
among the old conservators; in Lambert, Crompton, Fitzherbert, &c. &c. nor is a Privy
Counsellor to be found among our old books till Kendall and Roe's case, and 1 Leon. 70, 71, 29
Eliz. is the first case that takes notice of a commitment by a Secretary of State; but in 2 Leon.
175 the Judges knew no such committing magistrate as the Secretary of State. It appears by the
Petitition of Right, that the King and Council claimed a power to commit; if the Secretary of
State had claimed any such power, then certainly the Petition of Right would have taken notice
of it; but from its silence on that head we may fairly conclude he neither claimed nor had any
such power; the Stat. 16 Car. 1, for Regulating the Privy Council, and taking away the Court of
Star-Chamber, binds the King not to commit, and in such case gives a habeas corpus; it is strange
that House of Commons should take no notice of the Secretary of State, if he then had claimed
power to commit. This power of a Secretary of State to commit was derivative from the
commitment per mandatum Regis: Ephemeris Parliamentaria. Coke says in his speech to the
House, "If I do my duty to the King, I must commit without shewing the cause;" 1 Leon. 70, 71,
shews that a commitment by a single Privy Counsellor was not warranted. By the Licensing
Statute of 13 & 14 Car. 2, cap. 33, sec. 15, licence is given to a messenger under a warrant of the
Secretary of State to search for books unlicensed, and if they find any against the religion of the
Church of England, to bring them before the Secretary of State; the warrant in that case
expressed that it was by the King's command. See Stamford's comment on the mandate of the
King, and Lambert, cap. Bailment. All the Judges temp. Eliz. held that in a warrant or
commitment by one Privy Counsellor he must shew it was by the mandate of the King in
Council. See And. 297, the opinion of all the Judges; they remonstrated to the King that no
subject ought to be committed by a Privy Counsellor against the law of the realm. Before the 3
Car. 1 all the Privy Counsellors exercised this power to commit; from that aera they disused this
power, but then they prescribed still to commit per mandatum Regis. Journal of the House of
Commons 195. 16 Car. 1. Coke, Selden, &c. argued that the King's power to commit, meant that
he had such power by his Courts of Justice. In the case of The Seven Bishops all the Court and
King's Council admit, that supposing the warrant had been signed out of the Council, that it
would have been bad, but the Court presumed it to be signed at the board; Pollexfen in his
argument says, we do not deny but the Council board have power to commit, but not out of
Council; this is a very strong authority; the whole body of the law seem not to know that Privy
Counsellors out of Council had any power to commit, if there had been any such power they
could not have been ignorant of it; and this power was only in cases of high treason, they never
claimed it in any other case. It was argued that if a Secretary of State hath power to commit in
high treason, he hath it in cases of lessor crimes: but this we deny, for if it appears that he hath
power to commit in one case only, how can we then without authority say he has that power in
other cases? he is not a conservator of the peace; Justice Rokeby only says he is in the nature of a
conservator of the peace: we are now bound by the cases of The Queen and Derby, and The King
and Earbury.
The Secretary of State is no conservator nor a justice of the peace, quasi secretary, within the
words or equity of the Stat. 24 Geo. 2, admitting him (for arguments sake) to be a conservator,
the preamble of the statute shews why it was made, and for what purpose; the only grantor of a
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warrant therein mentioned, is a justice of the peace; justice of peace and conservator are not
convertible terms; the cases of construction upon old statutes, in regard to the warden of the
Fleet, the Bishop of Norwich, &c. are not to be applied to cases upon modern statutes. The best
way to construe modern statutes is to follow the words thereof; let us compare a justice of peace
and a conservator; the justice is liable to actions, as the statute takes notice, it is applicable to him
who acts by warrant directed to constables; a conservator is not intrusted with the execution of
laws, which by this Act is meant statutes, which gives justices jurisdiction; a conservator is not
liable to actions; he never acts: he is almost forgotten; there never was an action against a
conservator of the peace as such; he is antiquated, and could never be thought of when this Act
was made; and ad ea quae frequenter accidunt jura adaptantur. There is no act of a constable or
tithingman as conservator taken notice of in the statute; will the Secretary of State be ranked with
the highest or lowest of these conservators? the Statute of Jac. 1, for officers acting by authority
to plead the general issue, and give the special matter in evidence, when considered with this
Statute of 24 Geo. 2, the latter seems to be a second part of the Act of Jac. 1, and we are all
clearly of opinion that neither the Secretary of State, nor the messengers, are within the Stat. 24
Geo. 2, but if the messengers had been within it, as they did not take a constable with them
according to the warrant, that alone would have been fatal to them, nor did they pursue the
warrant in the execution thereof, when they carried the plaintiff and his books, &c. before Lovel
Stanhope, and not before Lord Halifax; that was wrong, because a Secretary of State cannot
delegate his power, but ought to act in this part of his office personally.
The defendants having failed in their defence under the Statute 24 Geo. 2; we shall now consider
the special justification, whether it can be supported in law, and this depends upon the
jurisdiction of the Secretary of State; for if he has no jurisdiction to grant a warrant to break open
doors, locks, boxes, and to seize a man and all his books, &c. in the first instance upon an
information of his being guilty of publishing a libel, the warrant will not justify the defendants: it
was resolved by B. R. in the case of Shergold v. Holloway, that a justice's warrant expressly to
arrest the party will not justify the officer, there being no jurisdiction. 2 Stran. 1002. The warrant
in our case was an execution in the first instance, without any previous summons, examination,
hearing the plaintiff, or proof that he was the author of the supposed libels; a power claimed by
no other magistrate whatever (Scroggs C.J. always excepted); it was left to the discretion of these
defendants to execute the warrant in the absence or presence of the plaintiff, when he might have
no witness present to see what they did; for they were to seize all papers, bank bills, or any other
valuable papers they might take away if they were so disposed; there might be nobody to detect
them. If this be lawful, both Houses of Parliament are involved in it, for they have both ruled,
that privilege doth not extend to this case. In the case of Wilkes, a member of the Commons
House, all his books and papers were seized and taken away; we were told by one of these
messengers that he was obliged by his oath to sweep away all papers whatsoever; if this is law it
would be found in our books, but no such law ever existed in this country; our law holds the
property of every man so sacred, that no man can set his foot upon his neighbour's close without
his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his
neighbour's ground, he must justify it by law. The defendants have no right to avail themselves
of the usage of these warrants since the Revolution, and if that would have justified them they
have not averred it in their plea, so it could not be put, nor was in issue at the trial; we can safely
say there is no law in this country to justify the defendants in what they have done; if there was,
it would destroy all the comforts of society; for papers are often the dearest property a man can
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have. This case was compared to that of stolen goods; Lord Coke denied the lawfulness of
granting warrants to search for stolen goods, 4 Inst. 176, 177, though now it prevails to be law;
but in that case the justice and the informer must proceed with great caution; there must be an
oath that the party has had his goods stolen, and his strong reason to believe they are concealed
in such a place; but if the goods are not found there, he is a trespasser; the officer in that case is a
witness; there are none in this case, no inventory taken; if it had been legal many guards of
property would have attended it. We shall now consider the usage of these warrants since the
Revolution; if it began then, it is too modern to be law; the common law did not begin with the
Revolution; the ancient constitution which had been almost overthrown and destroyed, was then
repaired and revived; the Revolution added a new buttress to the ancient venerable edifice: the K.
B. lately said that no objection had ever been taken to general warrants, they have passed sub
silentio: this is the first instance of an attempt to prove a modern practice of a private office to
make and execute warrants to enter a man's house, search for and take away all his books and
papers in the first instance, to be law, which is not to be found in our books. It must have been
the guilt or poverty of those upon whom such warrants have been executed, that deterred or
hindered them from contending against the power of a Secretary of State and the Solicitor of the
Treasury, or such warrants could never have passed for lawful till this time. We are inclined to
think the present warrant took its first rise from the Licensing Act, 13 & 14 Car. 2, c. 33, and are
all of opinion that it cannot be justified by law, notwithstanding the resolution of the Judges in
the time of Cha. 2, and Jac. 2, that such search warrants are lawful. State Trials, vol. 3, 58, the
trial of Carr for a libel. There is no authority but of the Judges of that time that a house may be
searched for a libel, but the twelve Judges cannot make law; and if a man is punishable for
having a libel in his private custody, as many cases say he is, half the kingdom would be guilty
in the case of a favourable libel, if libels may be searched for and seized by whomsoever and
wheresoever the Secretary of State thinks fit. It is said it is better for the Government and the
public to seize the libel before it is published; if the Legislature be of that opinion they will make
it lawful. Sir Samuel Astry was committed to the Tower, for asserting there was a law of State
distinct from the common law. The law never forces evidence from the party in whose power it
is; when an adversary has got your deeds, there is no lawful way of getting them again but by an
action. 2 Stran. 1210, The King and Cornelius. The King and Dr. Purnell, Hil. 22 Geo. B. R. Our
law is wise and merciful, and supposes every man accused to be innocent before he is tried by
his peers: upon the whole, we are all of opinion that this warrant is wholly illegal and void. One
word more for ourselves; we are no advocates for libels, all Governments must set their faces
against them, and whenever they come before us and a jury we shall set our faces against them;
and if juries do not prevent them they may prove fatal to liberty, destroy Government and
introduce anarchy; but tyranny is better than anarchy, and the worst Government better than none
at all.
Judgment for the plaintiff.
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