Criminal Procedure Class Notes - Supplemental Materials o There is a horn book provided by one of the authors which is pretty

good CLASS NOTES Focus of the Course - 1) Criminal investigation practices o More precisely, contacts between the police and persons suspected or accused of crime, at the time of shortly before/after arrest - 2) The Federal Constitutional rights of suspects in their contacts with the police o The Federal Constitutional restrictions (or lack thereof) on the police based on the 4th, 5th, 6th and 14th Amendments - 3) The Exclusionary Rule o Limits the admissibility of evidence obtains by the police from suspects in violation of their federal constitutional rights - 4) United States Supreme Court jurisprudence o The rules set forth by the Supreme Court. Sources for Criminal Procedure Law: - 4th Amendment: Search and Seizure o 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. Note: Does NOT include the Exclusionary Rule. It is applied later. Protects: Liberty (Arrest) Privacy (Search) Possession (Seizure of Property) - 5th Amendment: Grand Jury Indictment; Double Jeopardy; Self-Incrimination; Due Process; Just Compensation for Property o No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual services in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation. 5th Amendment Due Process = Applies to the Federal Government 14th Amendment Due Process = Applies to the State Governments Protects: Self-Incrimination Freedom from Government Compulsion o Keeps criminal procedure adversarial as opposed to inquisitorial. - 6th Amendment: Jury Trials; Procedural Rights o In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . and to be informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. Only applies when there is an actual criminal prosecution going on. When is this? Will be discussed later. Note that many police investigations occur prior to criminal prosecutions. Protects: Adversarial System by ensuring competent and effective representation; awareness of the charges; confrontation of witnesses; etc. 14th Amendment: Due Process; Privileges and Immunities; Equal Protection o No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Note: Most criminal procedure is based upon rules and statutes, not the state/federal constitution - So, we are learning the minimum requirements for criminal procedure. - We will not touch upon the local/state rules that apply additional procedure and responsibilities. Note: The 4th, 5th, 6th Amendments only apply to the Federal Government. - But those protections are imputed to the states by the 14th Amendment Due Process Clause. o Known as incorporation. - So a search by state police can violate a persons rights under the 4th Amendment via the 14th Amendment Due Process Clause. o Its technically wrong to cite the 4th Amendment in a state court proceeding, but it is generally allowed. - Exception: The Grand Jury requirement under the 5th Amendment has NOT been incorporated and applied to the states. - Why were the rights incorporated? o Supreme Court stated that the protections provided by the Bill of Rights were so fundamental to the United States system of justice that to deny citizens those rights is to deny them any Due Process at all. - Note: Despite the different sources (4th vs. 14th), the procedures, standards, rights and rules are the same. o If a Supreme Court case cites the 4th Amendment and hands down a rule, it can be applied to the states via the 14th Amendment Free-Standing Due Process - Rights that are independent of the Bill of Rights and other Constitutional Protections - It is simply interpreting what the phrase Due Process of Law means, without reference to the constitution. o Existed prior to the incorporation of the Bill of Rights by the 14th Amendment Rochen case (1952) (sp): - Police entered the victims property without a search warrant

When the police were about to obtain a number of morphine pills within the property, the victim swallowed them. o The police then took the victim to the hospital and had his stomach pumped, without the victims consent, and retrieved the pills. Court: One cannot extract by force what is in someones mind, so you cannot extract by force what is in someones stomach. o Reason the court is not relying upon the 4th and 5th Amendment; Exclusionary Rule? o Courts had not incorporated the exclusionary rule, or the 4th/5th Amendment, so they did not apply to the states yet. o So the Court applies Free Standing Due Process. Conduct that shocks the conscience and fails to respect civilized conduct and therefore cannot be due process of law. Note: Note that the acts of the police did NOT undermine the criminal justice system o Rochen was in fact guilty of the crimes alleged possession of morphine. o But that doesnt matter there are certain acts that are so against Due Process that they should not be allowed, even if such actions did not affect the reliability of the evidence.

Brighthop case (sp) (1957): - Defendant was involved in a fatal car accident - While he was unconscious, the police drew blood to have his blood/alcohol tested. - He was later convicted of drunk driving, which the defendant appealed on the grounds that the taking of his blood was unlawful seizure. - Court: o It is not the same situation as Rochen, since drawing blood after a fatal car accident is a routine occurrence. o It did not shock the conscience like the situation in Rochen. o Court also attempted to balance the intrusion vs. the government interest of preventing drunk driving. And the government interest outweighed the slight individual interest. Shmerber case (sp) (1966): - Same fact pattern as Brighthop. - Court: o In the period between 1957 and 1966, the incorporation cases occur Mapp 1960 (4th Amendment) Malloy 1965 (Self-Incrimination Incorporated) o So the court can then decide this case by analyzing the 14th Amendment incorporation of 4th and 5th Amendment. o However, the court disagrees: Still cites Brighthop (routine procedure and balancing of interests) Does not violate 14th Amendment Protection Against Self-Incrimination, as that clause only protects a person from testifying against themselves, not from giving blood. There must be testimonial evidence at issue (words, or other testimonial evidence).

Does not violate the 14th Amendment Protection Against Unreasonable Searches And Seizure, as the search is NOT unreasonable the police had probable cause to conduct the search. And they did not need a search warrant because it was an emergency. If the police took the time to get the warrant, the alcohol in the blood would have dissipated. And the search was performed in a reasonable manner o Doctor was there, it was in the course of the defendant receiving treatment, etc.

Note: Even now, after incorporation, Free Standing Due Process can still fill in the gaps - There are situations when it is used to protect against compelled self-incrimination, even though the 5th Amendment could also apply. Sources of Criminal Procedure: Federal Courts Supervisory Power - At one point, the Federal Courts could fashion criminal procedure rules themselves, without reliance upon the Constitution - Now, the Supreme Court has limited the ability of the Federal Court to create rights without some basis for that right. o Now, it can only implement rights that already exist in the Constitution or Statute. o The Court cannot use its Supervisory Powers to undermine Supreme Court decisions Sources of Criminal Procedure: State Law - State law and Constitution does not apply when it is a federal matter. - State law and the Federal Constitution applies when it is a state matter. - Note: The Federal Constitution provides the minimum for criminal procedure requirements o The States can provide more protections for its citizens. o Called New Federalism States using their own authority to provide increased protection. - If a State Court decides something as a matter of state law, then the Supreme Court cannot touch it even if it provides more rights than Federal Law. - Note: If you are a criminal defense attorney, argue both STATE and FEDERAL LAW. o Cite both the 4th Amendment, and the State Constitution/Statute/Etc. o Because states like PA have rejected Supreme Court decisions in favor of state law standards. However, in other states there has been a backlash against ignoring Supreme Court decisions. 1/11 READING NOTES Fourth Amendment Search and Seizure - Issues that come into play: o 1) What is the rationale and scope of the exclusionary rule? o 2) What police conduct constitutes a search or seizure, so as to be subject to the Amendments limitations? o 3) How much information is needed to meet the Amendments probable cause test, ordinarily the prerequisite for a search or seizure? o 4) How does the Amendment govern the manner in which warrants are to be issued and executed?

o o

5) In what circumstances may a search or a seizure be conducted without first obtaining a warrant? 6) In what circumstances may a search or seizure be conducted even without probable cause?

Note: Wolf and Mapp are incorporation cases. Wolf v. Colorado 1949, US Supreme Court Facts: - Not given. Discussion: - Rule: In Weeks v. United States, this Court held that in a federal prosecution the Fourth Amendment barred the use of evidence secured through an illegal search and seizure. o This rule is not derived from the Fourth Amendment or congressional intent, but was a matter of judicial implication. o Since Weeks, 30 states have rejected the Exclusionary Rule and 17 states have adopted it. - Holding 1: The security of ones privacy against arbitrary intrusion by the police which is at the core of the Fourth Amendment is basic to a free society. It is therefore implicit in the concept of ordered liberty and as such enforceable against the States through the Due Process Clause. o Protection against illegal searches and seizures is part of 14th Amendment Due Process Therefore, the court has incorporated 4th Amendment Search and Seizure Protection - Second Issue: Whether the Supreme Court should adopt the Weeks Exclusion Rule for state matters, not just Federal matters aka; whether the basic right to protection against arbitrary intrusion by the police demands the exclusion of logically relevant evidence obtained by an unreasonable search and seizure because, in a federal prosecution for a federal crime, it would be excluded. - Holding 2: We hold, therefore, that in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure. o Argues that there are other means of protection to safeguard the right to privacy in the states, and the Exclusionary Rule is not necessary. 1) Internal Discipline of the Police 2) Local public opinion will hold the police liable 3) States can adopt the Exclusionary Rule themselves if they so wish o Court argues that these other protections are equally effective as the exclusionary rule in deterring police misconduct. o So the Exclusionary Rule is NOT incorporated. Mapp v. Ohio 1961, US Supreme Court Facts: - Police officers attempted multiple times to enter Ms. Mapps property, despite Mapps refusal, as they were looking for a suspect in a recent bombing. o On the second visit, the police officers forcibly opened the door and gained entrance.

Police officers showed her a piece of paper purported to be the search warrant after breaking into her home, but when Mapp took the piece of paper the officers wrestled her to get it back and then placed her in handcuffs. o Mapp remained in handcuff in her upstairs bedroom while the officers searched through the entire house. o Mapps attorney arrived during the search, but the police would not let him see Mapp or enter the house. - During the course of the search, the police uncovered obscene material which they later used to convict Ms. Mapp for possession. Procedural History: - During the trial court, no search warrant was ever produced, and there was serious doubt whether there ever was a search warrant present. Discussion: - State Argues: o That even if the search were made without authority, or otherwise unreasonably, it is not prevented from the using the unconstitutionally-seized evidence at trial (citing Wolf v. Colorado). - Since Wolf, over half of the states that had refused to adopt the Weeks Rule before Wolf now have adopted the Exclusionary Rule. o The argument that there are other means of protection to safeguard the privacy right in the states has been proven false since Wolf. - Holding: o We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court. Incorporates the Exclusionary Rule. - Reasoning: o 1) Since Wolf, the Fourth Amendment has been applied to the states via the incorporation doctrine of the 14th Amendment. And, just as the Federal search and seizure rules are now applied to the state, so too should the exclusion rule. o 2) Court compares the exclusion rule to the coerced testimony rule, and states that if one must bar coerced testimony from evidence, then one must also bar unconstitutionally-obtained evidence as well for the same reason: We find that . . . the freedom from unconscionable invasions of privacy and the freedom from convictions based upon coerced confessions do enjoy an intimate relation. They *both+ express supplementing phases of the same constitutional purpose to maintain inviolate large areas of personal privacy. o 3) It does not make rational sense that a Federal attorney cannot use evidence improperly seized, but a State attorney across the street can even though both are now operating under the same 4th amendment. o 4) If you incorporate the right without the remedy that protects that right, then that right is hollow and empty. - Purpose of the Exclusion Rule: To deter to compel respect for the constitutional guaranty in the only effectively available way be removing the incentive to disregard it. - Counter Arguments: o Should the criminal go free simply because the constable was blundered? Court: This may sometimes be the case, but the imperative of judicial integrity" compels the court to still adopt the exclusion rule.

The criminal goes free, if he must, but it is the law that sets him free if the government defies its own laws, then it faces destruction. Court: The FBI has operated under the exclusion rule for 25 years, but it has not suddenly become ineffective as a result.

Dissent: - Problems in criminal law enforcement vary widely from state-to-state, and therefore the application of the Weeks rule should be determined on a state-by-state basis, BY the state. o Some states may wish not to adopt it, considering it too rough and ready and remedy, in that it reaches only unconstitutional intrusion which eventuate in criminal prosecution of the victims. o Some state may with to deal with constitutional infractions in other ways, allowing the illegally-obtained evidence to still be heard in court. o Other states may experiment with the Weeks rule for a bit, then decide to revert to the non-exclusionary rule. United States v. Leon 1984, US Supreme Court Facts: - Not given. Issue: - Whether evidence obtained via a search warrant is barred by the exclusion rule when the search warrant, though obtained from a detached and neutral magistrate, is later deemed by be unsupported by probable cause. Discussion: - The Exclusion Rule does not have its roots in the Fourth Amendment, nor does it work as a cure to the invasion of the defendants rights which he has already suffered. o Instead, its purpose is to be a judicially-created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the person aggrieved. o Thus, Whether the exclusionary sanction is appropriately imposed in a particular case . . . is an issue separate from the question *of+ whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct. - Balancing Test: Court must balance the costs and benefits of preventing the use in the prosecutions case-in-chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant that is ultimately found to be defective. o CANNOT adopt a strict adherence to the exclusion rule in all situations, as doing so would unconscionably impede the truth-finding goal of judge and jury. One consequence with this truth-finding function is that sometimes guilty criminals go free. o When law enforcement officers have acted in objective good faith, or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system. - Standard: o The application of the rule *must be+ restricted to those areas where its remedial objectives [namely, deterrence+ are thought most efficaciously served. Thus, when there is a reasonable good-faith belief that a search and seizure was in accord with the Fourth Amendment, then the exclusionary rule has been modified to permit the introduction of evidence.

Standing to invoke the rule has thus been limited to cases in which the prosecution seeks to use the fruits of an illegal search or seizure against the victim of police misconduct. Other Rules from Past Cases o 1) When considering the use of evidence obtained in violation of the Fourth Amendment in the prosecutions case in chief, we have declined to adopt a per se or but for rule that would render inadmissible any evidence that came to light through a chain of causation that began with an illegal arrest. o 2) Evidence obtained in violation of the Fourth Amendment and inadmissible in the prosecutions case in chief may be used to impeach a defendants direct testimony. o 3) A witness testimony may be admitted even when his identity was discovered in an unconstitutional search. Rules from these Past Cases: o That the connection between the police misconduct and the evidence may be sufficiently tenuous to allow for it to be used, in some capacity, at trial. Holding: o Applying a balancing test, the court believes that the exclusionary rule should be modified in this situation, where there was a reasonable good-faith belief that a search and seizure was in accord with the Fourth Amendment, as the cost of not producing the evidence (guilty criminal escapes justice) is not outweighed by the benefit of applying the rule (deterring other police officers) as the police conduct was reasonable and no deterrence is necessary 1) The exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. 2) There exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion. 3) *There is no basis+ for believing that exclusion of evidence seized pursuant to a warrant will have significant deterrent effect on the issuing judge or magistrate. o We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial cost of exclusion. Balancing Test Reasoning behind the Reasonable Good Faith Exception to the Exclusionary Rule. Thus, when there is a reasonable good-faith belief that a search and seizure was in accord with the Fourth Amendment, then the exclusionary rule has been modified to permit the introduction of evidence. STANDARD: Our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrates authorization. o In making this determination, all of the circumstances including whether the warrant application had previously been rejected by a different magistrate may be considered. Exceptions:

1) If the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. o 2) Cases where the issuing magistrate wholly abandoned his judicial role o 3) The warrant was issued despite the lack of any indicia of probable cause. o 4) When a warrant may be so facially deficient that the executing officers cannot reasonably presume it to be valid. Note: This is the first case in a string of cases that picked apart the Exclusionary Clause that finally modified the exclusionary clause to create a specific Good Faith Exception . o To do this, they had to make the Exclusionary Clause NOT a Constitutional Right Slaps Mapp in the face, where the court said: We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court. o Then it weighed the Cost/Benefit of applying the Exclusionary Rule Finding that deterrence was minimal for police officers and judges.

CLASS NOTES Step of a Criminal Process 1. Initiation - A. Crime - B. Pre-arrest Investigation - C. Arrest (based on probable cause to believe defendant committed crime - D. Post-Arrest Investigation - E. Initial Appearance before a judge or magistrate - F. Complaint is filed (a charging document which states succinctly the factual and legal nature of the crime charged) The Exclusionary Rule - A remedy for a search and seizure violation - Purpose: Deterrence o Mapp: To deter to compel respect for the constitutional guaranty in the only effectively available way be removing the incentive to disregard it. - Note: This remedy is the exclusion/suppression of evidence, NOT a dismissal. - Does not come from the Constitution, but from a US Supreme Court case: o Weeks: In a federal prosecution the Fourth Amendment barred the use of evidence secured through an illegal search and seizure. o Evidence obtained in violation of the 4th Amendment had to be excluded from trials in Federal Court. - Note: An argument against the Exclusionary Rule is that it only protects the guilty o It does not directly serve innocent people o It can only be used to suppress evidence that can be used to prove someones guilt. Professors Steps in a Search and Seizure Analysis 1. Does the 4th/14th Amendments apply at all? - If not, need to go no further. 2. If so, what protection does the 4th Amendment apply? - Probable cause to enter, or to search - Search Warrant

o Mapp, Leon. o Exception to Warrant Requirement? - Rules about Executing the Warrant o Police must knock, give notice, and then wait a period of time for someone to let you in. - Scope of Search Limits 3. If so, were the protections violated? 4. If violated, what is the Remedy? - The Exclusionary Rule for 4th Amendment Search and Seizure, and other Constitutional Protections - Other Remedies for other Protections. 5. Is there an Exception to the Remedy here? - Leon: Reasonable Good Faith Belief exception to the Exclusionary Rule Types of Deterrenc - Specific Deterrence o Attempting to deter that individual person from acting in a similar fashion The specific officer - General Deterrence o Attempting to deter any person who may act in a similar manner. The police department - In order for deterrence to work, there must be: o 1) Negative Consequences o 2) Motivation to Avoid those Consequences Reason why Leon Case came out as it did. 1/23 READING NOTES Protected Areas and Interests Katz v. United States US Supreme Court, 1967 *IS THERE A SEARCH?+ Facts: - Defendant was charged with transmitting wager information by telephone from LA to Miami and Boston in violation of federal statute. o At trial, the government presented evidence of the defendants end of telephone conversation. o The conversations had been recorded by the FBI, who had attached an electronic listening and recording device to the outside of the public telephone booth that the defendant used. o Problem: The police DID NOT get a search warrant or other authorization from a magistrate prior to conducting their recording. Tried to get a warrant for probable cause after the fact. Procedural History: - The Court of Appeals held that the recordings had not been obtained in violation of the 4th Amendment, since there was no physical entrance into the area occupied by the *defendant+. o Used the Trespassory Test

When the government physically intrudes upon private property, for the purposes of gathering information, it is a search. Note: Jones defines Private Property = Constitutionally-protected area Persons, houses, papers and effects. Text of 4th Amendment

Issues: - 1) Whether a public telephone booth is a constitutionally protected area, so that evidence obtained by attaching an electronic listening device violates the 4th Amendment rights of the user of the booth? - 2) Whether physical penetration of a constitutionally protected area is necessary before a search and seizure can violate the 4th Amendment? Discussion: - 1) Was the person using the telephone booth protected? o Standard: For the Fourth Amendment protects people, not places. More specifically it protects a persons privacy rights. o Rule: What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection . . . but what he seeks to preserve as private, even in an area accessible to the public, may be constitutional protected. o Application The fact that the telephone booth is out in public and made of glass is not important the user of the telephone booth sought to exclude, when he entered the telephone booth, not the uninvited eye but the uninvited ear. Just because the defendant was out in public where he could be viewed making his calls did not remove his right to avoid eavesdroppers. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call, is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. o IT IS AN ISSUE OF WHAT LEVEL OF PRIVACY IS EXPECTED, DETERMINED BY WHAT THE PARTY EXPOSES TO THE PUBLIC AND WHAT HE SEEKS TO PRESERVE AS PRIVATE. THIS DETERMINES WHAT A SEARCH IS UNDER KATZ. Big picture window in your house, and you perform illegal activity behind it, you are exposing yourself to the public no search. Talking in a phone booth with the door closed? You are seeking to preserve your conversation as private search. - 2) Does the 4th Amendment require physical penetration of the telephone booth? o Rule: Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements overheard without any technical trespass under local property law. The reach of the 4th Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure. The Katz Test: 1) Did the government action intrude upon a persons expectation of privacy? 2) Was the expectation reasonable? Two parts: o (a) A person must exhibit an actual, subjective expectation of privacy (subjective)

(b) The expectation of privacy is one that society is prepared to recognize as reasonable (objective). o Government Argues re: After-the-Fact Warrant: That the governments surveillance was so limited in duration and scope that a duly authorized magistrate, properly notified of the need for such investigation, could constitutionally have authorized the recording. Therefore, the government urges the creation of a new exception to cover this case that surveillance of a telephone booth should be EXEMPTED from the usual requirement of advance authorization by a magistrate upon the after-the-fact showing of probable cause. o Application: Disagrees with the Government that an exception should be made in this situation. 1) Without advanced authorization, there will not be an objective determination of probable cause since after-the-fact probable cause would only be established with hindsight bias. 2) Second, by bypassing a neutral authorization, the public is at the mercy of the sole discretion of the police department. The government here ignored the procedure of antecedent justification . . . that is central to the Fourth Amendment procedure that we hold to be a constitutional precondition of the kind of electronic surveillance involved in this case. Concurring (Harlan) - Fourth Amendment Standard: o 1) A person must exhibit an actual, subjective expectation of privacy (subjective) o 2) The expectation of privacy is one that society is prepared to recognize as reasonable (objective). - The important fact is not that the public booth is accessible to the public when it is not in use, but that it is a temporarily private place whose momentary occupants expectations of freedom from intrusion are recognized as reasonable. Dissenting (Black): - Eavesdropping did occur when the framers were drafting the Fourth Amendment, and if they had desired to outlaw or restrict the use of evidence obtained in eavesdropping, they would have explicitly done so. - Such a rule should not be created after-the-fact by judges stretching the language of the Fourth Amendment. Note: Before Katz, the court required (a) a physical trespass into (b) a constitutionally-protected place in order for a 4th Amendment violation to be found. - The court in Katz rejected this property-based type of analysis. - Note: The Jones decision handed down today (GPS device) used a property-based 4th Amendment analysis. o Physical intrusion upon private property for the purpose of obtaining information was a search. o Court held that both standards (1) the property-based Trespassory Test and (2) the Katz analysis are acceptable, and as long as one is satisfied, then a 4th Amendment violation has occurred. California v. Greenwood 1988, US Supreme Court

Police had the neighborhood garbage collector turn over the defendants trash to them without mixing their contents with other garbage collected. o Evidence of narcotics was found, and served as the basis for a search warrant that when executed led to the discovery of narcotics. Court: o That respondent exposed their garbage to the public sufficiently to defeat their claim to 4th Amendment protection. 1) It is common knowledge that plastic garbage bags left on the curb are readily accessible to animals, children, scavengers, snoops, and any other members of the public. 2) Respondents place their trash there for the express purpose of conveying it to a third party (trash collector). 3) The police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public. o Rule: When the defendant voluntarily conveys property to a third party, that person has no legitimate expectation of privacy in the property voluntarily conveyed. Exceptions: If there is some confidentiality expectation Lawyer-Client conveyance of property US Mail: Federal offense to open someone elses mail o Rule: When you put your trash bags on the curb, you have exposed the contents of those bags to the public. And you should have no reasonable expectation of privacy.

United States v. Scott 1992, First Circuit - Rule: Even if you shred your documents before placing them in the garbage, the government can still reassemble the documents without violating the Fourth Amendment. Smith v. Maryland 1979, US Supreme Court - Rule: The police do not violate the Fourth Amendment by recording the telephone numbers dialed by a criminal suspect. o An individual has no legitimate expectation of privacy in the numbers dialed on his telephone because he voluntarily conveys those numbers to the telephone company. California v. Ciraolo 1986, US Supreme Court - Rule: Police are not required to obtain a search warrant before conducting surveillance of the defendants fenced backyard from a private plane flying above. o Any expectation of privacy was unreasonable because any member of the public flying in the same airspace who glanced down could have seen everything the officers observed. Oliver v. United States 1984, US Supreme Court - Defendant fenced in a portion of a field adjacent to their property, placed No Trespassing signs in the area and then planted marijuana. o Court determines that, based on the Open Fields Doctrine, the defendants never had a reasonable expectation of privacy. o Uses a legitimacy analysis defendants had no legitimate expectation of privacy: Neither of these suppositions demonstrates, however, that the expectation of privacy was legitimate in the sense required by the Fourth Amendment. The test

of legitimacy is not whether the individual chooses to conceal assertedly private activity . . . Rather, the correct inquiry is whether the governments intrusion infringes upon the personal and societal values protected by the Fourth Amendment. As we have explained, we find no basis for concluding that a police inspection of open fields accomplishes such an infringement. Open Fields Doctrine: Police entry and examination of a field is free of any Fourth Amendment restraints. o Open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. o There is no reasonable expectation of privacy in an open field. Open Fields v. Curtilage o Curtilage: The land immediately surrounding and associated with the home. o The cartilage has been considered part of the home for Fourth Amendment purposes. An individual reasonably may expect that an area immediately adjacent to the home will remain private. Dissent: o This decision appears to be at odds with Katz (public phone booth case). o Dissent also argues that private lands marked in a fashion sufficient to render entry thereon a criminal trespass under the law of the state in which the land lies is protected by the Fourth Amendments proscription of unreasonable searches and seizures.

Florida v. Riley 1989, US Supreme Court - Rule: It is not a constitutional violation for officers to perform surveillance of the interior of a partially covered greenhouse in a residential backyard from the vantage point of a helicopter located 400 feet above the greenhouse. o Despite the low-flying helicopter, the court reasoned that because there is no minimum flight barrier for helicopters that any member of the public could have witnesses the greenhouse interior from their own helicopter. o As long as the level of flight is legal, then it is foreseeable, and you should have no reasonable expectation of privacy. Other Rules - 1) Business and Commercial Premises: The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. See v. City of Seattle, US Supreme Court 1967 o Professor hints at the fact that businesses are not given the same exact protection as homes (especially after Kyllo, which held that all details in a home are intimate), but businesses are still protected. - 2) Detention Facility: The fourth amendment has no applicability to a prison cell. - 3) Vehicles: o Cardwell v. Lewis 1974, US Supreme Court The police seized a car parked in a public parking lot, taking a small paint sample off the car and matching the tire treads to those recovered from a crime scene. Court: With the search limited to the examination of the tire on the wheel and the taking of paint scraping from the exterior of the vehicle left in the public parking lot, we fail to comprehend what expectation of privacy was infringed. o New York v. Class 1986, US Supreme Court

Officer stopped a car for traffic violations and then, after the driver exited the vehicle, opened the door and reached in to move papers obscuring the dashboard VIN at which time he saw a gun inside the car. Court: Since federal law requires that the VIN be placed in plain view of someone outside the vehicle, the defendant could have no reasonable expectation of privacy in the VIN, so that the mere viewing the formerlyobscured VIN was not a search. Search: The court then concluded that because a cars interior is subject to Fourth Amendment protection, the officers action in reaching inside the car constituted a search. (Albeit a reasonable one).

4) Effects: o Bond v. United States 2000, US Supreme Court During a lawful stop of a greyhound bus, federal agents walked through the bus and squeezed soft luggage in the overhead bin. They discovered a brick-shaped object and, with the passengers permission, opened the bag and found a brick of meth. Court: 1) A travelers personal luggage is clearly an effect protected by the Fourth Amendment. 2) When a bus passenger places a bag in an overhead bin, he expects that other passengers or bus employees may move it for one reason or another. Thus, a bus passenger clearly expects that his bag may be handled. 3) HOWEVER, the owner does NOT expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner thus the agents did violate the Fourth Amendment in his physical manipulation of the bag. CLASS NOTES: Current Events: - Supreme Court just handed down a decision in which is determined that attaching a GPS to the underside of a vehicle, and monitoring that vehicles location, is a search. Steps for Search and Seizure Analysis: 1) Does the 4th/14th apply? 2) If so, what protection exist? 3) Where the protections violated? 4) If so, Exclusions? Now were on the Does the 4th/14th Apply? portion of the analysis. Governmental Action Requirement: - Student breaks into professors office to steal something, and finds a bag of pot in the desk drawer. The student later turns the pot over to the police, who promptly arrest the professor. - Answer: o The 4th Amendment doesnt apply unless there is some governmental action. So any wrongful search conducted by a private person will not trigger the 4th Amendment.

Exception: However, the Fourth Amendment is applicable to private individuals who are acting as instruments or agents of the government. Whether a private individual is an agent of the government is determined by a totality-of-the-circumstances test. Circumstances to be considered in this test include the motive of the private actor; any compensation or other benefit the private actor receives from the government; and the advice, direction and level of participation given by the government. Governmental Agents: o Not just police action includes federal employees Public school teachers searching a students locker? Government Action o Note: Foreign government officials do NOT count as government officials for 4th Amendment purposes.

Citizenship/Permanent Resident/Etc. Requirement - The person claiming an unlawful search must be within the definition of the people as stated in the 4th Amendment. o The phrase the people in the Fourth Amendment refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this community, or who have otherwise developed sufficient connect with this community to be considered part of that community. Requirement: Was it a Search or Seizure? - The 4th Amendment protects certain privacy, possessory and liberty interests, and government intrusion against those interests can constitute a violation of the 4th Amendment. o We would say that there is a search and/or seizure within the meaning of the Fourth/Fourteenth Amendments interest. The Katz Test: - 1) Did the government action intrude upon a persons expectation of privacy? - 2) Was the expectation reasonable? Two parts: o (a) A person must exhibit an actual, subjective expectation of privacy (subjective) o (b) The expectation of privacy is one that society is prepared to recognize as reasonable (objective). How the Court determines this? See noted in Katz brief. - Note: Later courts have used legitimate expectations of privacy instead of reasonable in certain situations. Search vs. Not a Search Sense-Enhancing Devices - If the sense-enhancing technology is common (binoculars, night-vision cameras, etc.), then one expects the public at large to have such technology and unless you take steps to avoid such sense-enhancing technology, you are exposing yourself no search. 1/25 READING NOTES Kyllo v. United States 2001, US Supreme Court

Suspecting interior marijuana growth, Federal Agent Elliot used a thermal imager to scan the apartment complex at issue. The walls and roof of the defendants apartment were warmer than the rest of the apartment complex, so Elliot believed that the defendant was using halide lights to grow marijuana. o Based on this discovery, informants and utility bills, a warrant was issued and the agents discovered an indoor growing operation involving more than 100 plants. Defendant unsuccessfully attempted to suppress the evidence seized from his home. Government Argument: o The thermal imager only picks up heat coming off the outside of the building it does not view any persons or objects inside the home. o Therefore, it should be equated to officers watching rain evaporate quickly off the roof, or snow melting unnaturally quickly from the home, and determining that the exterior of the house is hotter-than-average that way. Court: Doesnt buy it. Believes that the officers could not have gotten the heat information without committing trespass of some sort. Court: o Rule: We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search at least where (as here) the technology in question is not in general public use. Rule: Use of sense-enhancing technology that is not in general public use is a search, as the individual cannot anticipate such technology and protect his private affairs from it. Importance of it being the victims home? o Themes: Under Katz, it is the place with the most reasonable expectation of privacy The fourth amendment explicitly states the term house so it is explicitly a constitutionally-protected area. Protection of the home is what the Framers intended. At the core of 4th Amendment protection Scalia wants to make intrusions into ones home automatically a search because it provides a brightline rule for police and courts. In the home . . . all details are intimate details, because the entire area is held safe from prying government eyes. o What if it were a device examining an individual walking down the street and investigating his pockets? Likely still a search if certain sense-enhancing technology is used.

Still determining whether we have a Search and Seizure or No Search or Seizure - If there is no search or seizure, then there are no 4th Amendment rights triggered. - Tests to Determine Whether there was a Search or Seizure: o 1) Katz Reasonable Expectation Test o 2) Jones Trespassory Test Note: Once you determine that there was a Search or Seizure, then: - 1) The 4th Amendment does apply, but - 2) The protections the victim is able to claim depend upon the degree of the search or seizure.

o o

Lesser searches/seizures are justified if the police have reasonable suspicion. Full search/seizures are justified only if the police have probable cause.

Note: In the alternative, the government in Kyllo could have argued that if the actions of the police did constitute a search, then it was just a lesser search. Dog-Sniffing Cases - 1) US v. Place 1983, US Supreme Court o There is certainly a privacy interest in your personal luggage o However, a canine sniff by a well-trained narcotics detection dog, however, does not require opening the luggage . . . Thus, the manner in which information is obtained through his investigative technique is much less intrusive than a typical search. 1) Less intrusive. o Moreover , the sniff discloses only the presence or absence of narcotics, a contraband item . Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. 2) Information obtained is limited. o We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealved by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here exposure of respondents luggage, which was located in a public place, to a trained canine did not constitute a search within the meaning of the Fourth Amendment. o Different from Kyllo? Same unintrusive technique (no trespassing), but the scope of the search in Place is much more limited than the search in Kyllo. The dog only identifies drugs The heat sensor will pick up on all heat signatures in a house. o From drugs to the wife taking a bath. When does the Fourth/Fourteenth Apply in the Context of a Seizure? - 1) Consensual Encounters - 2) Seizure: o Lesser Seizure (Stop) o Full Seizure (Arrest) - Seizures impact a Liberty Interest, while Searches impact a Privacy Interest. Terry v. Ohio 1968, US Supreme Court - Provides the test for determining what a seizure is: o Rule: Whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred. - Facts: o Plainclothes police officers became suspicious of two men standing on a street corner at 2:30 in the afternoon. Believed that the men were casing a store in preparation for a robbery.

The officers approached and frisked Terry, uncovering two pistols. Terry was charged with carrying a concealed weapon, and he moved to suppress the weapon as evidence. The motion was denied. Discussion: o Rule: It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person. o Rule: One cannot suggest that a careful exploration of the outer surfaces of a persons clothing all over his or her body in an attempt to find weapons is not a search. o Thus, because his actions constituted a search and seizure, the next question is whether it was reasonable: 1) Whether the officers action was justified at its inception, and 2) Whether it was reasonably related in scope to the circumstances which justified the interference in the first case. o Application: When 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 other, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. Holding: Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.

1/30 CLASS NOTES Seizure of the Person - Terry held for the first time that the police may stop and frisk without a warrant and with less than probable cause. - Dual Inquiry for Determining Whether a Search or Seizure is Reasonable (Terry) o 1) Is the Search or Seizure justified in its inception o 2) Is the Search or Seizure reasonably related in scope to what initially justified it US v. Mendenhall 1980, US Supreme Court: - Defendant arrived at Detroit Airport, and two DEA Agents observed that her conduct appeared to be characteristic of persons unlawfully carrying narcotics o The agents approached her and asked for ID o She consented and readily gave over her identification - The officers asked her to accompany them to the airport DEA office for further questions o She consented to going with the officer to the DEA office.

The defendant consented to a search of her person, and in the process of removing her clothing two packets of drugs were uncovered. o Defendant was then arrested for possession of heroin. Issue: o Whether the initial stopping of the defendant and requesting of identification constituted an unreasonable seizure. Discussion: o Rule: We conclude that a person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be: 1) The threatening presence of several officers 2) The display of a weapon by an officer 3) Some physical touching of the person of the citizen, 4) The use of language or tone of voice indicating that compliance with the officers request might be compelled. o Here, no seizure occurred The events took place in a public area The agents wore no uniforms and displayed no weapons They did not summon the defendant they approached her, identified themselves, asked her to come with them to the DEA office and she consented. o In short, noting in the record suggests that the respondent had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way, and for that reason we conclude that the agents initial approach to her was not a seizure.

Note: - Legally, if the DEA agents approached the defendants and asked her to accompany them to the DEA office, the defendant could have declined and the agents would have had no right to detain her. o They would not have sufficient proof to seize her person. o And if they did, in fact, seize her and hold her, she could have filed a civil suit against the DEA. Florida v. Bostick 1991, US Supreme Court - Two officers boarded a bus bound from Miami to Atlanta, picked out a passenger on the bus (admittedly without articulable suspicion) and asked to inspect his ticket and identification. o Both the ID and ticket were returned to the man, being unremarkable - Then the two officers persisted and explained their presence as narcotics agents, and requested to search the defendants luggage. o There is debate as to whether the defendant consented, but drugs were found upon a search and the defendant was arrested. - Procedural History o Trial court held that an impermissible seizure results when police mount a drug search on buses during scheduled stops and question boarded passengers without articulable reasons for doing so, thereby obtaining consent to search the passengers luggage. o Supreme Court reverses.

Discussion: o We have stated that even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individuals identification, and request consent to search his or her luggage as long as the police do not convey a message that compliance with their requests is required. Defendant argues that this situation is different, as the interaction took place in the cramped confines of a bus he was not free to leave the conversation. The court disagrees. o Standard: The appropriate inquiry is whether a reasonable person would feel free to decline the officers requests or otherwise terminate the encounter. And the defendant was free to decline the Free to decline test instead of the free to leave test of Mendenhall, since on a bus trip the defendant was likely not free to leave - since he would just be getting off the bus in the middle of nowhere. Dissent: o Argues that a reasonable person would NOT have felt free to decline the officers requests because: (a) The police displayed their weapon during the encounter, which exerts significant coercive pressure on the confronted citizen. (b) The police had surrounded and isolated the defendant in his seat, surrounding him (c) The defendant was in the middle of a bus trip, and couldnt simply get off the bus to leave the encounter.

Note: We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure. - So refusing to cooperate with police requests cannot, on its own, serve as grounds for arrest. United States v. Drayton 2002, US Supreme Court - During a scheduled stop, the driver turned the bus over to three police officers - One knelt on the drivers seat and faced back, the second stayed in the rear and faced forward, and the third worked his way from back to front, speaking with individual passengers without first advising them of their right to refuse to cooperate. - The officers asked the defendants whether they could search their bags, and the defendants consented. o The search revealed no drugs - The officers then asked the defendants whether they could search the defendants person o The pat-down revealed two hard objects strapped to the defendants thigh areas similar to drug packages. o Both defendants were arrested. - Discussion: o The court split 6-3 on the application of Bostick o Majority: A reasonable person under the circumstances would have felt free to disregard the police officers request. There had been no seizure, as there was no application of force, no intimidating movement, no overwhelming show of force, no

brandishing of weapons, no blocking of exists, no threat, no command, not even an authoritative tone of voice. It is beyond question that had this encounter occurred on the street, it would be constitutional. The fact that an encounter takes place on a bus does NOT on its own transform standard police questioning of citizens into an illegal seizure.

Dissent: If a pedestrian were similarly the object of attention by three officers in equally-confined space say, a small alley then there is every reason to believe that the pedestrian would have understood, to his considerable discomfort, the threatening presence of several officers which may overbear a normal persons ability to act freely, even in the absence of explicit commands or the formalities of detention. There was no contrary indication that day, since no passenger had refused the cooperation requested, and there was no reason for any passenger to believe that the driver would return and the trip resume until the police were satisfied.

Keeping the Standard Reasonable Person - Needs to remain objective: o Should it be based on race? Age? Education? - If it is an objective standard, then it can be easily applied by the police on the streets and the judge in the courtroom. Brendlin v. California 2007, Supreme Court - Held that when a police officer makes a traffic stop he seizes a passenger as well as the driver within the meaning of the Fourth Amendment and thus a passenger, as well as the driver, may challenge the constitutionality of the stop. - Court determines that, from the standpoint of a passenger when police have stopped the car they are in, a reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission. o Constitutes a seizure. Seizing of Property - Luggage: Detention of travelers luggage 90 minutes was an unreasonable seizure in 2 respect, as it constituted a deprivation of defendants possessory interest in his luggage, and his liberty interest in proceeding with his itinerary. 4th Amendment Process 1) Is it a search? - The Katz Test: o 1) Did the government action intrude upon a persons expectation of privacy? o 2) Was the expectation reasonable? Two parts: (a) A person must exhibit an actual, subjective expectation of privacy (subjective) (b) The expectation of privacy is one that society is prepared to recognize as reasonable (objective). - The Trespassory Test/ Jones Test

When the government physically intrudes upon private property, for the purposes of gathering information, it is a search. 2) Is it a seizure of a person? - The Terry Standard: o It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person. - The Mendenhall Standard: o We conclude that a person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. - The Bostick Standard: o The appropriate inquiry is whether a reasonable person would feel free to decline the officers requests or otherwise terminate the encounter. 3) Is it a seizure of a property? 2/6 Search & Seizure and other Constitutional Rights Andresen v. Maryland 1976, US Supreme Court - State authorities obtained search warrants to search petitioners law office and corporate office for specified documents pertaining to a fraudulent sale of land. o The papers found in the execution of the warrants were admitted and petitioner was convicted. Court: - Rule: Fifth Amendment provides that, no person shall be compelled in any criminal case to be a witness against himself. o Issue: Whether the records which were seized in the defendants offices (which contained statements made by the defendant) and presented as evidence during trial constitute the defendant being compelled to testify against himself in violation of the Fifth Amendment. - Defendant Argues: o The Fifth Amendment prohibition against compulsory self-incrimination applies as well to personal business papers seized from his offices as it does to the same papers being required to be produced under a subpoena. - Holding: o Rule: A party is privileged from producing evidence, but not from its production. Although the Fifth Amendment may protect an individual from complying with a subpoena for the production of personal records in his possession because the very act of production may constitute a compulsory authentication of incriminating information, seizure of the same materials by law enforcement officers differs in a crucial respect the individual against whom the search is directed is NOT required to aid in the discovery, production or authentication of incriminating evidence. o In this case, petitioner was not asked to say or do anything. (1) The records seized contained statements that petitioner had voluntarily committed to writing. (2) The search for and seizure of those records were conducted by law enforcement personnel. (3) Finally, when these records were introduced at trial, they were authenticated by a handwriting expert, not by petitioner. Any compulsion of petitioner to speak, other

than the inherent psychological pressure to respect at trial to unfavorable evidence, was not present. Probable Cause - The Fourth Amendment requires probable cause for a valid arrest warrant or search warrant - Warrantless-Searches: o Police are often permitted to make arrests and searches without first obtaining a warrant, in which case the Fourth Amendments protection against unreasonable searches and seizures applies. o Note: Probable Cause is still required for warrantless arrests and searches. Exception: Unless those searches and seizures, because they involve a lesser degree of intrusion or interference, are permitted upon less-than the traditional amount of probable cause. - Probable Cause o 1) For Arrest: There must be a substantial probability that a crime has been committed and that the person to be arrested committed it. o 2) For Search: There must be a substantial probability that crime has been committed, that certain items are the fruits, instrumentalities or evidence of crime, and that these items are presently to be found at a certain place. Note: For searches, the location of items depends upon the time the items must be presently located in a certain place. Note: A valid search warrant can be issued even while the perpetrator of a crime is unknown, but a valid arrest warrant cannot. o 3) For Seizure of Property: When the evidence sought will aid in a particular apprehension or conviction. Probable cause to believe that the items will aid in a particular apprehension or conviction. - Problems of Probable Cause: o A) Information has become Stale Example: A search warrant for a black jacket, ski mask and money related to a robbery 3 months prior. The warrant for the black jacket and ski mask is likely valid But the warrant for the money is likely NOT valid, since there is likely no probable cause the money would still be there . . . as a highly incriminating or consumable item of personal property is less likely to remain in one place as long as an item of property which is not consumable or which is innocuous in itself or not particularly incriminating. o B) Information is Premature Example: Search warrant requested on the basis that a child pornography tape will be delivered to the defendants house later, and thereafter a search would commence. Court: (US v. Grubbs, 2006) o Anticipatory warrants are no different in principle from ordinary warrants. They require the magistrate to determine that (1) it is now probable (2) that contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed.

HOWEVER, where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes NOT merely to what will probably be found if the condition is met . . . [but to] the likelihood that the condition *itself+ will occur. Rule: Two prerequisites must be satisfied: o 1) If the condition occurs, there is a probable cause that contraband or evidence of a crime will be found in a particular place, and o 2) There is probable cause to believe the condition will occur. Demonstrating Probable Cause for a Warrant: o In a warrant case, the issue upon the motion to suppress is usually cast in terms of whether the facts set out in the complaint or affidavit upon which the warrant was issued establish probable cause. o US v. Clyburn: The Fourth Amendment does not require that the basis for probable cause be established in a written affidavit, and thus magistrates may consider sworn, unrecorded oral testimony in making probable cause determinations during warrant proceedings. o Whiteley v. Warden: An otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant (officer) when he sought the warrant, but NOT DISCLOSED to the issuing magistrate. o Note: Defendant can still Challenge a Warrant that is Sufficient on its Face Rule: Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing by held at the defendants request. Rule: If the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavits false material set to one side, the affidavits remaining content is insufficient to establish probable cause, the search warrant must be void and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. Reasoning (see list on pg 299)

Maryland v. Pringle 2003, US Supreme Court - Pringle was a passenger in a vehicle which was stopped by the police o Partlow, the driver, gave the officer consent to search the vehicle o During the search, the police moved an armrest and found 5 baggies of cocaine. o The three men were briefly questioned, but none of the men identified the cocaine as belonging to them. - All three men were placed under arrest and transported to the police statement. o Later, Pringle gave a written confession that the cocaine belonged to him, and that he intended to sell the cocaine or use it for sex. o The other occupants of the car were released. Procedural History - The trial court denied Pringles motion to suppress his confession as the fruit of an illegal arrest, holding that the office had probable cause to arrest Pringle.

The Court of Appeals of Maryland, in a divided vote, reversed o Held that absent specific facts to show Pringles knowledge and dominion or control over the drugs, the mere finding of cocaine in the back armrest, where Pringle was a frontseat passenger, is insufficient to establish probable cause for an arrest for possession.

Issue: - It is uncontested that the officer had probable cause to believe that a felony had been committed once he recovered the five baggies of cocaine. - The ISSUE then, is whether the officer had probable cause to believe that Pringle committed the crime of possession of cocaine, either solely or jointly. Discussion: - Probable Cause Standard: (1) A reasonable ground for belief of guilt and (2) that the belief of guilt must be particularized with respect to the person [arrested]. - Application: o We think it an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised domain and control over, the cocaine. Thus, a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly. - Distinguishing Prior History: o 1) Different from Ybarra v. Illinois, in which the court found that police officers did NOT have probable cause search every patron in a bar after heroin had been found on the bartenders person. A car passenger unlike the unwitting tavern patron will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing. Here we think it was reasonable for the officer to infer a common enterprise among the three men. o 2) Different from Di Re, in which the police officers knew that the driver of a vehicle had committed the crime in question, and the court concluded that the officers lacked probable cause to search the passengers in the vehicle. Any inference that everyone on the scene of a crime is a party to [the crime] must disappear if the Government informer singles out the guilty party. Spinelli v. United States 1969, US Supreme Court - Spinelli was convicted of traveling from Illinois to Missouri with the intention of conducting illegal gambling activities. - The affidavit relied upon by the FBI to search was based primarily on (a) the trips back-and-forth from Illinois to Missouri, The use of a St. Louis apartment with two telephone lines (c) the fact that the affiant and federal law enforcement knew that Spinelli was a bookmaker and gambler, and (d) that an informant stated that Spinelli was operating a gambling organization out of St. Louis, using the 2 telephone lines. The Warrant - In the warrant at issue, the FBIs own investigation revealed only innocent activity traveling to Missouri, use of an apartment, etc. - Moreover, the allegation that Spinelli was known to be a bookmaker and gambler is but a bald and unilluminating assertion of suspicion that is entitled to no weight in appraising the magistrates decision.

The government claims, however, that with the informants information, the innocent-seeming activity serves as corroboration of the informants claim.

Court: - Rule: The constitutional requirement of probable cause can be satisfied by the hearsay information received by an informant. - Aguilar Test: o 1) The warrant application must provide underlying circumstances that enable the Magistrate to independently judge the validity of the informants conclusions. o 2) The affiant must support their claim that the informant is credible - Standard of Inquiry for Aguilar: Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilars tests without independent corroboration? - Note: Court critiques the totality of circumstances method used by the Court of Appeals, stating that it paints with too broad a brush. o However, the court in Gates later rejects the Spinelli Courts test as too precise, favoring a broader approach. Application: - The court first considers the informants tip apart from the rest of the affidavit. - Holding: The warrant fails both prongs of the Aguilar Test: o 1) The tip does not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation. Must show the grounds for believing the validity of the informants conclusions. o 2) Though the affiant swore that his confidant was reliable, he offered the magistrate no reason in support of that conclusion. Simply proving that the apartment did have two telephone lines, as the informant stated, does NOT provide sufficient proof that the informant is reliable. Illinois v. Gates - 1983, US Supreme Court - An anonymous letter was sent to police in Bloomingdale, Illinois that alleged that a husband and wife, Sue and Lance Gates, were drug dealers. o Gave details as to how they transported their drugs up from Florida, including the date of Sue Gates next visit May 3. Claimed that they drove a car from Florida to Chicago with $100,000 worth of drugs inside o Also stated that the Gates had $100,000 worth of drugs in their basement presently. - Police investigated and confirmed that Sue Gates had flown from Chicago to West Palm Beach on May 5th, and that she had left Florida in a car, traveling on a highway that led to Chicago. - Police then obtained a search warrant for the car and resident o When gates and his wife arrived back home, the search warrants were executed 350lbs of marijuana were found in their car Other marijuana, weapons and other contraband were found in their home. Procedural History: - Trial judge suppressed the evidence - Illinois Appellate Court and Supreme Court both upheld the suppression on the ground that the affidavit, containing the above-recited information, did not meet the Spinelli two-prong test.

CLASS NOTES Probable Cause - Facts and circumstances, within the police officers knowledge and of which they have reasonably trustworthy information, that are sufficient to warrant a person of reasonable caution in the belief that the action (arrest, search, or seizure) is justified. - Standard: o Whether, given all the circumstances including those related to the trustworthiness of any sources of information, there is a fair probability that the police action is justified. - Three Requirements o 1) Quantity of information or evidence judged by an objective standard. o 2) Qualitatively probable cause requires trustworthy, reliable sources of information Personal knowledge by police Credible informants o 3) Police must articulate particular, concrete facts and circumstances which, together with the reasonable inferences from them, justify the police action.

Process for Probable Cause:

Part I: Items, Place & Time - Identify the: o 1) Items to be Seized, Place/Person to be Searched or Person to be Seized o 2) Identify the Place o 3) Identify the Time of the Warrant Part II: Aguilar Test - 1) Is the source for the information reliable? o The affiant must support their claim that the informant is credible. (Aguilar) o Process: 1) What is the reliability of the source (Veracity)? Are they a criminal attempting to barter with police officers to save their own tail? Have they given trustworthy information in the past? 2) Are there more than one informant giving consistent information? Allowed to be considered under the Grant totality of circumstances. o Note: The veracity prong is satisfied by a recitation in the affidavit that: (a) The informant previously supplied accurate information to the police (see McCray v. Illinois), or (b) By proof that the informant gave his information against his penal interest (US v. Harris). - 2) Is the information itself reliable? o The warrant application must provide underlying circumstances that enable the Magistrate to independently judge the validity of the informants conclusions. (Aguilar) o Process: 1) What is the Basis of the Knowledge? The Circumstances surrounding the Knowledge? Were they present while the illegal activity was occurring? Were they hearing this information second-hand, as mere hearsay?

 Is it merely a bald assertion? Part III: Turn to the Evidence itself and determine whether Probability Exists for those Particular Items/Persons/Places - Determine whether there is a Reasonable Probability/Substantial Probability/Fair Probability that: o 1) (For Arrest) A crime has been committed and that the person to be arrested committed it. Does probable cause to arrest become stale? Not generally, no but you may want to factor in potential changes of appearance. o 2) (For Search) Certain items are the fruits, instrumentalities or evidence of a crime, and that these items are presently to be found at a certain place. Note: For searches, the location of items depends upon the time the items must be presently located in a certain place. Note: A valid search warrant can be issued even while the perpetrator of a crime is unknown, but a valid arrest warrant cannot. o 3) (For Seizure of Property) The evidence sought will aid in a particular apprehension or conviction. Probable cause to believe that the items will aid in a particular apprehension or conviction. - Pringles: Fair Probability is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of circumstances. (Maryland v. Pringle) o However, the substance of all the definitions of probable cause is a reasonable ground for belief of guilt. (Maryland v. Pringles) Part IV: Articulated Requirement - Articulated: o Did the warrant application articulate particular, concrete facts and circumstances which, together with the reasonable inferences from those facts, justify the police action? o Did the application provide sufficient independent facts that allowed the magistrate to independently determine whether probable cause exists? Warrant Process: - The judge/magistrate decides whether there is probable cause o Makes their decision based upon an affidavit submitted by law officers 2/13 Gates: - There are no clear rules for determining probable cause o It is determined from the totality of circumstances o Aguilar Test is no longer the test, but it still gives us reliable factors to consider when considering the totality of circumstances. For all these reasons, we conclude that it is wise to abandon the two-pronged test established by our decision in Aguilar and Spinelli. In its place, we reaffirm the totality of circumstances analysis that traditionally has informed probable cause determinations.

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for . . . concluding that probable cause existed. Only Clear Rules: o Police cannot make bare-bones allegations in their application for warrants and expect that to suffice for probable cause Example: I have a reliable informant. Prior precedence isnt directly helpful for determining probable cause o Professor: But it is helpful.

Basic Things for Probable Cause: - 1) Probable Cause to Search: o (a) Seizable Items (b) At the place to be searched, (c) At the time for the search Seizable Items Items for which exists a probable cause to seize Aid in a particular apprehension or conviction. o (d) Affidavit includes facts and circumstances which allow the magistrate to make the probable cause conclusion, not the police o (e) Qualitiative and Quantitative evidence that the fair probability that seizable items exists Note: Confidential Informants Privilege (McCracy v. Illinois, 1967 US Supreme Court pg 299) - The Illinois Supreme Court has held that police officers need not invariably be required to disclose an informants identity if the trial judge is convinced, by evidence submitted in open court and subject to cross-examination, that the officers did rely in good faith upon credible information supplied by a reliable informant. - US Supreme Court holds that a confidential informant is NOT compelled to testify per the Fourth Amendment Due Process. Fourth Amendments Requirements for Probable Cause: - 1) Probable Cause - 2) Oath or Affirmation by - 3) Particular description of the Places/Persons to be Searched o It is enough if the description is such that the officer with a search warrant can, with reasonable effort, ascertain and identify the place intended. - 4) Particular description of the Persons/Property to be Seized o Intended to prevent general searches, to prevent the seizure of objects on the mistaken assumption that they fall within the magistrates authorization, and to prevent the issuance of warrants on loose, vague or doubtful bases of fact. Execution of a Search Warrant: - 1) Knock - 2) Announce that you are the police, and that you have a search warrant for the premises - 3) Wait a reasonable amount of time

The issue is simply whether the occupants failure to admit the police fairly suggested a refusal to let them in which means the question would be whether it reasonably appeared to the police that an occupant has had time to get to the door. (US v. Banks)

Exceptions to these Knock and Announce Requirements: - If there are Exigent Circumstances. - The police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime. o Example: If there it was reasonable to suspect imminent loss of evidence if they waited a reasonable amount of time (US v. Banks) o Example: If the safety of the police is jeopardized o Example: If the investigation will otherwise be compromised, such as if the suspect will flee through a rear exit Stale Warrant: - Generally, a search warrant must be executed within 10 days of issuance - However, in PA, a search warrant must be issued within 2 DAYS of issuance. Time of Service of a Warrant: - Its not constitutional, but most jurisdictions require that warrants be served during the daytime. o In order to have a nighttime warrant in PA, police need to provide additional probable cause. 2/22 CLASS NOTES: Entries to Arrest Steagald v. US 1981, US Supreme Court - Police entered Steagalds home in an effort to find one Lyons, for whom they had an arrest warrant. o Police did not find Lyons, but did find drugs in plain view o Steagald was arrested and convicted. - The court reversed, holding that the arrest warrant embodies only a judicial finding that there was probable cause to believe that Ricky Lyons had committed a felony, and therefore authorized police to seize Lyons. o BUT the arrest warrant does not protect Steagalds privacy interest in being free from an unreasonable invasion and search of his home. - Therefore, an arrest warrant cannot suffice to enter a third partys house in search of the object of the arrest warrant. o A contrary conclusion that the police, acting alone and in the absence of exigent circumstances, may decide when there is sufficient justification for searching the home of a third party for the subject of an arrest warrant would create a significant potential for abuse. Armed solely with an arrest warrant for a single person, the police could search all the homes of the individuals friends and acquaintances.

Note: Payton v. New York (1980, US Supreme Court) states that an arrest warrant implies the ability for police to enter into the property lived in by the person who is listed on the arrest warrant. - If there is sufficient evidence of a citizens participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law. Thus, the Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. Hypothetical: - Police have an arrest warrant for Bob, and learn that Bob is in Als house. - They enter Als house without consent. - They arrest Bob - They also see drugs in plain view o They dont seize the drugs then and there, so as not to violate Steagald - But they include the witnessing of drugs on their affidavit for a warrant - They gain a search warrant, search Als home and seize the drugs - Answer: o Since their physical presence in Als house was illegal from the start (the poisonous tree), then anything seized or witnessed there is fruit of a poisonous tree. o The only thing that could save it if there was independent information for the warrant: If there was other, properly-gained information that was, in itself, enough to establish probable cause WITHOUT the ill-gotten witnessing of drugs. What if, instead of seizing the drugs or coming back with a search warrant, they seize the drugs from B in a search incident to the arrest o Bob moves to suppress the drugs: No standing to challenge the seizure, since it was Als privacy interests that were infringed by the intrusion without a search warrant not Bobs.

Standing Issues: - A defendant may lack standing to challenge evidence seized in violation of a third partys constitutional rights. - Jones v. United States 1960, US Supreme Court: o 1) The Possession Rule: If the crime charged involves possession of the seized elements as an element of the crime, standing is automatic o 2) If the person was legitimately on the premises, then standing is automatic Note: These two rules were later done away with. - Alderman v. United States 1969, US Supreme Court: o Suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. o Rationale: The additional benefits of extending the exclusionary rule to other defendants would not justify the encroachment on important social interests. - CURRENT LAW: Rakas v. Illinois 1978, US Supreme Court o For standing, the question is whether the challenged search or seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it. o Process:

1) Was there a search with respect to the person challenging the legitimacy of the search? 2) Did the police action intrude or violate on a Reasonable or Legitimate Expectation of Privacy in the public place? 3) [Jones Additional Prong] Was there a trespass with respect to that particular person challenging the legitimacy of the search? Passengers in a car lack reasonable expectations of privacy in the locked glove compartment, or the area underneath the passenger seat.

Brendlin v. California 2007, US Supreme Court: - The state court also maintained that once the police pull a car off the road, any passenger would feel free to depart or otherwise to conduct his or her affairs as through the police were not present. The US Supreme Corut disagreed: o We think that any reasonable passenger would have understood that no one in the car was free to depart without police permission. - Supreme Court held that the passengers in a car seized in a traffic stop were they themselves seized, and have standing to challenge that seizure. Residential Premises and Standing - Generally a resident, tenant or owner of a residential property has standing to challenge the searches of those premises, even if they are not present during the search. o Anyone with a present property interest in residential property - Olson Extends Fourth Amendment protection overnight guests o An overnight guest has a legitimate expectation of privacy in the host residence, at least while they are present in that property. - Minnesota v. Carter 1998, US Supreme Court o An informant reported to police that he had witnessed parties packaging drugs Police later investigated the scene, peering through a crack in the blinds and witnessed the same bagging operation. o A search warrant was in the works, but the defendants left the building in a vehicle prior to the search warrant being issued The police officers seized cocaine in the car, and arrested the persons in the car o The police then returned to the apartment and arrested the occupant, Ms. Thompson. o The police then searched the apartment, with a warrant, which revealed even more cocaine. o Court: The defendants do have standing to challenge the seizure/search of the car At issue is whether the defendants have standing to challenge the peering in the window and witnessing the drug-bagging operation. Lower court held that the officers observation constituted an unreasonable search of the apartment. Defendants here were obviously not overnight guests, but were essentially present for a business transaction and were only in the home a matter of hours. There is no suggestion that they had a previous relationship with Thompson, or that there was any other purpose to their visit. Nor was there anything similar to the overnight guest relationship in Olson to suggest a degree of acceptance into the household.

o 2/27

Property used to commercial purposes is treated differently for Fourth Amendment purposes that residential property. And while it was a home in which respondents were present, it was not their home. o The defendants werent using the property as a home o They were using it as a commercial property. The purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder, all lead us to conclude that respondents situation is closer to that of one simply permitted on the premises. For future use of this standard just a factual comparison.

SEARCH INCIDENT TO ARREST US v. Robinson, 1973 US Supreme Court - Police officer knew that Robinson had a suspended license, but witnessed him driving nonetheless. o Officer pulled Robinson over and arrested him. - Officer then began patting him down, and felt something in Robinsons pocket o He pulled out a crumpled cigarette package, and felt it to determine that there was more in the package than just cigarettes o Opened up the package to discover capsules of heroin. - Court of Appeals: In Robinsons case, his crime did not require the gathering of any evidence certainly not evidence that can be found in a cigarette pack Therefore, the heroin was thrown out. o Relied on the Terry Standard, in which the only reason to pat down a suspect you are arresting are if: You have a reasonable suspicion that the arrestee is armed and dangerous. Therefore, since there was no reasonable suspicion here, the only other reason (according to the Court of Appeals) you can search incident to an arrest is to preserve evidence And, since the crime here did not require any evidence one could find via a pat-down, the search was unlawful. o Note: The suspicion of weapon circumstance is an EXIGENT CIRCUMSTANCE. And the trigger of these exigent circumstances is the proximity of the officer to the arrestee created by the arrest, and the danger that comes along with that. - Court: o Disagrees with the Court of Appeals application of Terry The search for evidence or fruits of crimes need not be restricted to evidence of the specific crime the arrestee is being detained for. Rather, the search incident to arrest (SIA) is automatically justified by the arrest based on probable cause. - Search always allowed upon arrest? o Court says yes: A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a reasonable search under that Amendment. o Therefore, officers need not determine whether a search can occur on a case-by-case basis such justification is always present when there is probable cause for a custodial arrest. It is always allowed. A Bright-Line Rule for officers It is presumed that there are exigent circumstances for every single lawful, custodial arrest.

Every arrest has a risk of danger for the arresting officer. Reasoning for searching for weapons: It is scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of a relatively fleeting contact resulting from the typical Terry-type stop. This is an adequate basis for treating all custodial arrests alike for purposes of search justification.

Note: - Generally, to search, you must have probable cause o Means that there are seizable items at the place at the time - But under Robinson, a search incident to arrest needs no such probable cause requirement. o Doesnt matter if it was later determined that there was no probable cause to search. Scope Imitations on Searches Incident to Arrest: - Search limited to: o 1) The person being arrested o 2) The area under that persons immediate control Generally, the area in which the arrested person can grab something - Note: o The scope limitations for probable cause searches (restricted to areas in which one might reasonably hope to find the items you are searching for) does NOT apply to SIAs. o The plain view rule does not appear to apply either The officer was free to open and search the cigarette pack in Robinson. Thus, an officer can search nearby packages within the persons area of immediate control. Knowles v. Iowa 1998, US Supreme Court - Officer pulls over Knowles for speeding and, pursuant to a statute authorizing the officer to issue a citation in lieu of arrest for most bailable offenses, issued Knowles a citation. o The officer then made a full search of Knowles car and found a bag of majrijuana - Court: o Because the threat to the officers safety was less, because no seizure occurred, and the need to discover/preserve evidence does not exist here, the search was not a lawful Search Incident to Arrest. The officer would rather have had to rely upon Terry, and merely pat down the suspect as if it were an on-the-street approach and pat-down. Terry Requirement: There is a reasonable suspicion that the person is armed and dangerous. Atwater v. City of Lago Vista 1973, US Supreme Court - Court: o The Fourth Amendment does not prohibit arrests, or require the officer to make further proof, to make an arrest if the crime is a fine-only offense. Because it is asking too much from the officer to determine, in the heat of the moment, whether it is a jailable vs. fine-only offense

Above a gram of marijuana or below a gram of marijuana? Also, societal interests and the government interests in an easily-administerable rule outweigh individual interests. Therefore, the court is giving officers unfettered discretion to choose to arrest the party without articulating a single reason why such action is appropriate, even if the crime at committed is a fine-only misdemeanor.

Note: Some states require that person halted for violations of misdemeanor traffic laws MUST be released upon issuance of a citation unless they fall within certain exceptions: o 1) Person who must be arrested and taken before a magistrate usually those violating several specified laws, and o 2) Persons who may be released on citation or taken before a magistrate at the option of the police officer, who fail to have a license in their possession, or who fail to furnish satisfactory evidence of identification.

Note: Lawful Arrest means lawful under the Fourth Amendment, not state law - If an officer arrests someone in violation of state law (such as, for a mandatory citation-only crime), the subsequent Search Incident to Arrest is still valid under Federal law because the arrest was still lawful under the Forth Amendment even if it was unlawful under state statute. 2/29 Outline for SIC Discussion: 1) Lawful custodial arrest - Search incident to arrest is lawful: o Without search warrant, or o Without probable cause to search - Other constitutional limits on police officers arrest authority? o Probable cause, yes. o Fine-only crime, no limitation on officer to arrest 2) The Rationale for SICs: Presumptive Exigent Circumstances o A) Prevent Harm to the Police and Escape of the Suspect (Weapon Search) o B) Prevent destruction of evidence - Other Rationale: After arrest, a search appears to be minimal intrusion on persons privacy as compared to the arrest itself. o Professor: The language in Robinson doesnt appear to suggest this. 3) Scope for SICs: - A) For person arrested - B) For area within his/her immediate control 4) Timing for SICs: - When can an officer conduct a search incident to an arrest? o Has to be at the time of the arrest (contemporaneously to the arrest) Robinson: - Rule: A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.

Whren v. US US Supreme Court, 1996 - Plainclothes vice officers in an unmarked car are patrolling a high drug area in DC. - The officers become suspicious of a certain truck, and when they made a U-Turn to investigate, the truck turned right suddenly, without signaling, and sped off at an unreasonable speed. - The officers caught up with the truck, and the officers told the driver to put the truck in PARK o Note: An effective seizure. - When an officer approached the cabin he witnessed the passenger Whren with his hands in 2 large plastic bags of what appeared to be crack cocaine. - The occupants of the truck were arrested, and the illegal drugs retrieved from the vehicle led to their conviction. Defendants Argue: - While defendants concede that Officer Soto had probable cause to believe that various provisions of the DC Traffic Code had been violated, they argue the traffic violation was a pretext for the stop, when the real motivation for the stop was inarticulable facts (aka race). o Suggested Rule: Whether a police officer, acting reasonably, would have made the stop for the reason given. Discussion: - Rejects the defendants proposed test. - Believes that there shouldnt be any claim that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved. o An officers motive does NOT invalidate objectively-justifiable behavior under the Fourth Amendment o The fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officers action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action. - Rule: Probable cause is sufficient for the stop in this situation. o Note: The standard for most stops and frisks (lesser seizures) is reasonable suspicion. Chimel v. California 1969, US Supreme Court: - Police officers are allowed into the premises by defendants wife, where they waited for the defendant to arrive. - When the defendant arrived, he was arrested at the front door. - Despite the defendants objections, the police then proceed to search the entire house o Government argues that this was a search incident to arrest, and thus lawful Discussion: - Court discusses to the scope of the search incident to the arrest: - Scope includes: o 1) Person 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. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestees person in order to prevent its concealment or destruction. o 2) Area within his immediate control And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule.

A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestees person and the area within his immediate control construing the phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

Maryland v. Buie 1990, US Supreme Court - Police arrested Buie, brought him outside, and then an officer went back inside and searched the basement. - Court did not determine whether this was lawful, but it did set down the standard for Protective Sweep Search. Discussion: - Court: When police the residence lawfully, to arrest somebody, they can do a protective sweep of the house without a warrant. - We also hold that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. o Rationale: To determine whether other people are in the area which might pose a risk to the officers. Vale v. Louisiana US Supreme Court, 1970 - Police had a warrant for Vales arrest, and set up a surveillance on his residence - They then witnessed (what they believe to be) a drug deal involving Vale, and arrested him on his front steps. o Police then searched through the house to determine if anyone else was parent, and they found narcotics in the rear bedroom. Discussion: - In order to search the house, there needs to be probable cause to believe that exigent circumstances exist o That there is some danger o That there will be the destruction of evidence - Court states that there was no exceptional situation to warrant the search of the dwelling in this situation. - We decline to hold that an arrest on the street can provide its own exigent circumstance so as to justify a warrantless search of the arrestees house. US v. Rubin 1973, US Supreme Court - Court states a test for warrantless searches: o When Government agents . . . have probable cause to believe contraband is present and, in addition, based on the surrounding circumstances or the information at hand, they reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant, a warrantless search is justified. o Circumstances which have seemed relevant to courts include: 1) The degree of urgency involved and the amount of time necessary to obtain a warrant 2) The reasonable belief that the contraband is about to be removed

3) The possibility of danger to police officers guarding the site of the contraband while a search warrant is sought 4) Information indicating the possessors of the contraband are aware that the police are on their trail, and 5) The ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.

Brigham City v. Stuart 2006, US Supreme Court: - Rule: One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury . . . Accordingly, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. Plain View Doctrine [Seizing Property]: - Illinois v. Andreas, 1983 o The plain view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item is connected with criminal activity. The plain view doctrine is grounded on the proposition that once police are lawfully in a position to observe an item first-hand, its owners privacy interest in that item is lost; the owner may retain the incidents of title and possession but not privacy. - Arizona v. Hicks, 1987 o Police lawfully entered the premises from which a weapon was fired o Officer noticed two sets of expensive stereo pieces that seemed out of place in the otherwise squalid apartment Suspecting that it was stolen, the officer moved aside a turntable and recorded the serial number. He then reported the stereo to HQ, and was advised that it was stolen. o The officer seized the stereo at that point o Majority concluded the moving of the equipment was an unreasonable search. As already noted, a truly cursory inspection one that involves merely looking at what is already exposed to view, without disturbing it is not a search for Fourth Amendment purposes, and therefore does not even require reasonable suspicion. But the moving of the stereo equipment was not a truly cursory inspection.

3/12 READING NOTES California v. Carney 1985, US Supreme Court Facts: - Police saw defendant Carney and a youth enter a Motor Home parked in Downtown San Diego o Police questioned the youth upon exiting, learned that Carney had drugs inside, and had the youth knock on the door of the motor home.

o o

When Carney exited, the police entered and saw marijuana Carney was arrested, the motor home was seized, and a subsequent search revealed additional marijuana.

Rules: - Carroll Automobile Exception: While the privacy interests in an automobile are constitutionally protected, the ready mobility of the automobile justifies a lesser degree of protection, thus, a warrant need not be secured before a search is undertaken. o Justification: 1) Ready mobility It is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. 2) Inherently lower expectation of privacy in automobiles Lower expectation of privacy because of the pervasive regulation of vehicles capable of traveling on the public highways. o Cady: Extends the lower expectations to enclosed repository areas such as a sealed package in the truck (Cady), a closed compartment under a dashboard (Chambers), the interior of a vehicles upholstery (Carroll). o Rule: When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes temporary or otherwise the two justifications for the vehicle exception come into play. A. First, the vehicle is obviously readily mobile by the turn of a switch key, if not actually moving. B. Second, there is a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling. Application: - The motor home falls within the scope of the Carroll exception. o It was readily mobile o It was licensed to operate on public streets and was therefore subject to extensive regulations and inspection. - Court refuses to distinguish between automobiles and vehicles capable of functioning as a home. o Our application of the vehicle exception has never turned on the other uses to which a vehicle might be put. California v. Acevedo 1991, US Supreme Court Facts: - Daza was witnessed picking up a package from Federal Express that police knew contained marijuana, and bringing it to his apartment. - Acevedo was seen leaving the apartment with a brown paper bag, placed it in his trunk, and drove off. - The police stopped Acevedo, opened the trunk, opened the bag and found the marijuana. Discussion: - Prior case Law

Ross Issue: Whether the warrantless search of an automobile under the Carroll exception could include a search of a container or package found inside the car when such a search was based on probable cause. Ross distinguished the Carroll rule from the Chadwick/Sanders rule for the search of closed containers: Chadwick: Refused to apply the Carroll rule to allow for the search of a locked footlocker simply because it had briefly been placed inside the trunk of an automobile. Chadwick applies to luggage and other closed packages, bags and containers. Sanders: Applying the Carroll rule did not allow police to open personal luggage merely because it was located in an automobile o Note: In both Sanders and Chadwick, the polices interest was first on a package/luggage, and then on a car not vice versa. Thus it was not a vehicle search. o NOTE: Acevado wipes both Sanders and Chadwick off the map There is no longer a separate rule they are all vehicle searches that be searched without a warrant per Carroll. Ross Rule: 1) The Carroll automobile exception applies to the search of the car when the police had probable cause to search the entire vehicle o And closed containers encountered by police during Carroll warrantless searches could also be searched. o Scope: Can search wherever the items they are searching for might reasonably be found. 2) The Chadwick doctrine governing the searching of luggage applies when the officers only have probable cause to search a container within the vehicle. Issue: We now must decide the question deferred in Ross: whether the Fourth Amendment requires the police to obtain a warrant to open the sack in a movable vehicle simply because they lack probable cause to search the entire car. o Court: Adopts the Ross Rule The Fourth Amendment does not compel separate treatment for an automobile search that extends only to a container within the vehicle. The interpretation of the Carroll doctrine set forth in Ross now applies to all searches of containers found in an automobile, as long as the search is supported by probable cause. Reasoning: A. A container found in a car after a general search of the automobile, and a container found in a car after a limited search for the container, are equally easy for the police to store and for the suspect to hide or destroy. B. The line between probable cause to search a vehicle and probable cause to search a package in that vehicle is not always clear, and separate rules that govern the two objects to be searched may enable

the police to broaden their power to make warrantless searches and disserve privacy interests. Notes: o The scope of the search allowed in Alevedo is just the location where the bag was placed: Why? Because they dont have probable cause for the entire car just the package that was placed inside the car. So the Sanders/Chadwick distinction between package/vehicle search isnt gone it has just been shifted from whether there can be search to what areas of the car can be searched? In the case before use, the police had probable cause to believe that the paper bag in the automobiles trunk contained marijuana. That probable cause now allows a warrantless search of the paper bag. The facts in the record reveal that the police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment. o Note: The rationale of the court allows for an anomaly: The package is likely unsearchable when it is just in Alevedas possession Cant look into it under the pat-down rule under Terry (weapon search only) Only Option: o Arrest Aleveda (probable cause of possession of contraband), and then perform a search incident to arrest Arrest him without a warrant under Watson. But as soon as Aleveda puts the bag into the car, it then becomes searchable under Ross (and now, Aleveda).

Wyoming v. Houghton 1999, US Supreme Court - If there is probable cause to search the car, the police can use the Carroll exception to search the luggage/packages of the passengers as well. o Allows for a search of all containers in the vehicle without individualized probable cause to search packages based upon ownership. - Reasoning: Balancing Test o Government Interests o 1) Mobility of the automobile o 2) Reduced expectation of privacy for passengers as well o 3) Chance that the driver slipped something in passengers luggage o 4) That the driver and passenger were engaged in a common enterprise - Different from Ybarra and Di Re o That the police searched the actual person of the other patrons/passengers, not just bags within the car. o In all of these cases, the original focus is on the driver/owner The probable cause only extends to the driver/owner And their car/tavern is theirs, and thus has the same privacy interests o But the passengers/patrons have a higher privacy interest, and cannot be searched like the car. - Similar to Pringles:

Pringle: Polices arrest of backseat driver is lawful, since it is assumed that passengers within a car are part of a common enterprise.

Arizona v. Gant 2009, US Supreme Court Facts - Gant was arrested for driving with a suspended license and locked in the rear of the patrol car. - Officers searched Gants car and discovered cocaine in the pocket of his jacket, which lay in the backseat. Procedural History: - Arizona Supreme Court: o The search-incident-to-arrest exception to Fourth Amendment warrant requirement, as defined in Chimel and applied to vehicle searches in Belton, did NOT justify the search in this case. Because Gant could not have accessed his car to retrieve weapons or evidence at the time of the search. Holding: - 1) The Chimel rule (search incident to arrest restricted to arrestees immediate control) defines the scope of the Belton rule (applying SIA rules to vehicle searches), and therefore Belton does not authorize a vehicle search incident to arrest after the arrestee has been secured and cannot access the interior of the vehicle. - 2) But the Thornton rule allows for a search incident to arrest of the vehicle, when it is reasonable to believe that evidence of the offense of arrest may be found in the vehicle. o Isnt this just a vehicle search with a lesser standard of proof? No: Court distinguishes the Thornton Rule from regular vehicle searches: If there is probable cause to believe a vehicle contains evidence of criminal activity, Ross authorizes a search of any area of the vehicle in which the evidence might be found. Discussion: - Prior Case Law: o Chimel: Rule: Police may search incident to arrest only the space within the arrestees immediate control meaning, the area from within which he might gain possession of a weapon or destructible evidence. If there is no possibility that an arrestee could reach into the area that law enforcement officers see to search, both justifications for the SIA exception (danger to police; destruction of evidence) do not apply. o Belton: Court applied the Chimels SIA exception to the automobile. Single police officer pulled over car, witnessed drug-related evidence, took out the 4 occupants of a car, separated them on the road, searched the car and found drugs. Court: When an officer lawfully arrests the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile and any containers therein. Passenger Compartment just the interior of the vehicle, not the trunk.

Justification: The assumption that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact . . . within the area within an arrestee might reach.

Defendant Argues: o That since Gant had already been detained and placed in the rear of the police car when the search was conducted, such a search was unreasonable because he could not have accessed his car at the time of the search. Court: Harmonizing Chimel and Belton o Agrees that its opinion in Belton has been read to allow a vehicle SIA even if there is no possibility the arrestee could gain access to the vehicle at the time of the search. But states that this reading is incorrect as in Belton, the court recognized thats its opinion does NOT alter the principles established in Chimel regarding the scope of SIAs. o Therefore, SIAs performed in accordance with Belton must be restricted in their scope by Chimel to the immediate control restriction. And the Chimel rationale authorizes police to search a vehicle incident to arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. Court: The Thornton Rule: o Though it does not follow Chimel, the court also holds that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe *that+ evidence relevant to the crime of arrest might be found in the vehicle. Arrest for traffic violation = no likelihood of evidence related to that traffic violation will be found in the car (search not ok). Arrest for drug possession = likelihood of evidence related to the drug violation will be found in the car (search ok). Application: o 1) Since Gant was locked in the back of the patrol car, there is no possibility of his accessing the interior of the automobile that would warrant an SIA under Chimel/Belton. o 2) Since Gant was just arrested for driving with a suspended violation, there is no likelihood of finding offense-related evidence within the car. No search allowed under Thornton o Because police could not reasonably have believed either (a) that Gant could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein, the search in this case was unreasonable. States Arguments: o 1) State requests that the court adopt the broad reading of Belton that allows for SIA for vehicles without taking the Chimel restrictive scope into account. o Courts response: A) The State undervalues the privacy interests at stake. Yes, a motorists expectation of privacy is less in his vehicle then in his home, but that does NOT mean that it is nonexistent. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals.

B) The broad reading of Belton is not necessary to protect law enforcement safety and evidentiary interest. Exceptions to the warrant requirement authorize a vehicle search under additional circumstances only when safety or evidentiary concerns exist. o Ross: A search of any area of the vehicle is authorized if there is probable cause to believe that it contains evidence of a crime. Overruled here in favor of the Thornton rule? o Buie: In a SIA, an officer may conduct a limited protective sweep of those areas in which he reasonably suspects a dangerous person may be hiding. A broad reading of Belton serves no purpose except to provide a police entitlement; it does not have a safety-or-evidentiary-justification. - Response to Dissent: o Dissent: Wants a broad reading of Belton because it is in line with the doctrine of stare decisis. Court: The doctrine of stare decisis does not compel the court to follow a past decision when its rationale no longer withstands careful analysis AND it relates to an unconstitutional police practice. - Conclusion: o Police may search a vehicle incident to a recent occupants arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search, or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Unless these justifications are present, the police must obtain a warrant or show that another exception to the warrant requirement exists. Concurrence (Scalia): - Disagrees with Belton and Thornton that arresting officers ALWAYS have the ability to search a vehicle in order to protect themselves from hidden weapons. o Believes that police almost always have a less-intrusive and more effective way of ensuring their safety ordering the arrestee away from the vehicle, patting him down, restraining him and placing him into the squad car. - STEVENS: o Believes that Chimel should be adopted that officers making a roadside stop may search the vehicle so long as the arrestee is within reaching distance of the passenger compartment at the time of the search. - SCALIA: o Disagrees with Stevens, in that he believes that Chimel should be abandoned entirely, for fear that police will leave scenes unsecure just to allow for a search. o Instead, Scalia would HOLD that a vehicle search incident to arrest is reasonable only when the object of the search is evidence of the crime for which the arrest was made, or of another crime that the officer has probable cause to believe occurred. Dissent (Alito, Kennedy, Breyer) - Believes that the majority is actually overruling Belton and Thornton here, as the broad interpretation is the correct reading of that case that a search of the vehicle is always permitted in a SIA situation. o And therefore, the court must justify its departure from the usual rule of stare decisis there must be some special justification for its abandoning of precedent. Colorado v. Bertine 1987, US Supreme Court

Facts: - Police arrested Bertine for DUI, and took him into custody - After the arrest, and before the arrival of the tow truck, the police inventoried the contents of the van. o Found drugs and a large amount of cash. Issue: - Whether the state can use the evidence discovered during the inventory of Bertines van Discussion: - Prior case law: o Opperman: Inventory searches of automobiles are consistent with the Fourth Amendment o Lafayette: The inventory search of personal effects of an arrestee at a police station was also permissible under the Fourth amendment o Chadwick: Searches of closed trunks and suitcases violates the Fourth Amendment. - Court: Inventory Searches vs. Criminal Investigation Searches o Inventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment. Rationale: Probable cause only applies to criminal investigations, not routine, noncriminal procedures. Rule: Probable cause is only relevant when the police are actually looking for evidence of a crime. o Not when the police are looking for everything for the purposes of doing an inventory. Rule: An inventory can lead to seizable items under the PLAIN VIEW DOCTRINE. o Therefore, Sanders and Chadwick do not apply, as these cases both concerned searches solely for the purpose of investigating criminal conduct, with the validity of the searches therefore dependent on the application of the probable cause and warrant requirements of the Fourth Amendment. - Inventory Searches Rule: o An inventory search may be reasonable under the Fourth Amendment even though it is not conducted pursuant to warrant based upon probable cause. Balancing Test: An inventory search: o A) Serves to protest an owners property while it is in the custody of the police o B) Insures against false claims of lost, stolen or vandalized property o C) The guard the police from danger. In light of these strong governmental interests and the diminished expectation of privacy in an automobile, we upheld the search [in Opperman+. Opperman: Inventory search in an abandoned cars glove compartment after it was impounded by police. Lafayette: Applied the Opperman reasoning to the search of a shoulder bag in the possession of an individual being taken into custody. - Defendant/State Supreme Court Arguments: o 1) That Lafayette is not controlling because there was no danger of introducing contraband or weapons into a jail facility.

Court: The Lafayette decision did not rely on the station-house setting of the inventory search. Rather, the key are the general governmental interests that were served by the inventory sources o 2) The search was unreasonable because Bertines van was towed to a secure, lighted facility and because Bertine himself could have been offered the opportunity to make other arrangements for the safekeeping of his property. Court: The security of the storage facility does not eliminate the need for inventorying the police might still want to protect themselves against false claims of theft, or dangerous instrumentalities. Example of the court giving deference to the police regarding what the appropriate way to perform an inventory search would be. o Reasoning: It is a police administrative matter, not a legal/constitutional issue. Court: And allowing Bertine to have someone else take possession of the van is not required under the Fourth Amendment. The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative, lessintrusive means. - Holding: Reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment. Concurrence (Blackman, Powell, OConnor) - Writes to underscore the fact that it is permissible for police officers to open closed containers in an inventory search only if they are following standard police procedure that mandates the opening of such containers in every impounded vehicle. Dissent (Marshall, Brennan) - Inventory searches are reasonable only if conducted according to standardized procedures, and NOT be the discretionary decisions of the officer. o However, in both Opperman and Lafayette, the court relied on the fact that there was no police discretion in the standardized procedures when it determined that the searches were reasonable. - Here, the majority ignores these clear prohibitions on unfettered police discretion by allowing for the police to make discretionary decisions regarding the feasibility and appropriateness of parking and locking a vehicle rather than impounding it. o It was the police officers decision not to park and lock the vehicle o The record indicates that NO standardized criteria limit a Boulder police officers discretion. The officer has 3 options once an arrest has occurred: 1) Allow a third party to take custody of the vehicle 2) Take the car to the nearest public parking facility, lock it, and take the keys - no search occurs 3) The officer can impound the vehicle, search it, and inventory its contents including closed containers. Once the police officer chooses the third option, and is allowed to search, he is also given little guidance as to how/where to search and what items to inventory.

Florida v. Wells 1990, US Supreme Court - Court held that the inventory of a locked suitcase found in an impounded vehicle was unlawful under Bertine because the Florida Highway Patrol had no policy whatever with respect to the opening of closed containers encountered during an inventory search. CLASS NOTES I. Vehicle Search: - Carroll - Carney - Chadwick/Sanders - Ross - Alevedo II. Search Incident to Arrest - Chimel - Robinson - Belton - Thornton - Gant III. Inventory Search: - Lafayette - Bertine - Florida v. Wells IV. Stop & Frisk: - Terry - Michigan v. Long Good to Identify in Each: - 1) Exception - 2) Rationale for Exception - 3) Requirements for Exception - 4) Scope of Exceptions - 5) Timing of Exception 3/19 Inventory Search: - Bertine: Court upholds the admissibility of evidence found during an inventory search prior to the towing of the vehicle to a police impound lot. o No search warrant/probable cause required because it is NOT a criminal investigation; The police are not looking for anything, and there are other interests at stake OTHER than investigating a crime. - Requirements for a Valid Inventory Search (both Vehicles and Effects: o 1) Lawful impoundment of the Vehicle The police must have the vehicle lawfully in order justify inventorying it to serve the government interests set forth in Bertine.

Note: Evidence found in an otherwise lawful inventory must be suppressed if the prior impoundment of the vehicle was not justified. Dyke v. Taylor, US Supreme Court (1968). o 2) The inventory search is a Good Faith, Routine, Administrative, Caretaking Procedure Not pretext for criminal investigation There was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation. o 3) The inventory must be conducted pursuant to Preexisting Standardized Procedures Either police administrative procedures, or statutory procedures Our decisions have always adhered to the requirement that inventories be conducted according to standardized criteria. Reasoning: Want to limit the discretion of the officer doing the inventory, but it is not an absolute: A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself. (Florida v. Wells, 1990 US Supreme Court). o Discretion can be allowed as long as there are some limiting criteria to guide the officer. Scope of an Inventory Search: o Determined by the pre-existing administrative/legal standardized procedures. Without such standardized procedures, such opening of containers inside the car is not permitted. So because the search itself is not a Fourth Amendment search, then the Plain view doctrine does not apply? Answer: The Plain View Doctrine does not apply until the police find an illegal substance, and it becomes a criminal investigation again the Plain View Doctrine allows for the police to then use the evidence recovered during the inventory search not only in an administrative capacity, but now in a criminal-investigation capacity.

STOP AND FRISK CASES (SEIZURE AND SEARCH) Terry v. Ohio 1968, US Supreme Court Facts: - A police officer became suspicious about 2 men standing on a street corner at 2:30 in the afternoon. o Appeared to be casing a store over and over again - Fearing an armed robbery was about to occur, the police officer approached and identified himself. - When the men did not reveal their names, the officer spun Terry around and patted his breast pocket. o He felt and recovered a pistol from Terry and from his companion. - Terry was charged with carrying a concealed weapon. Discussion: - 1) Is the Fourth Amendment triggered? o Yes: It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person.

Yes: And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a persons clothing all over his or her body in an attempt to find weapons is not a search. - 2) Is it a reasonable search and seizure? o And in determining whether the seizure and search were unreasonable, our inquiry is a dual one: (a) Whether the officers action was justified at its inception, and 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? (b) Whether it was reasonably related in scope to the circumstances which justified the interference in the first place. The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs or other hidden instruments for the assault of the police officer. o Note: It is unlike a search without a warrant incident to a lawful arrest, [and] is not justified by any need to prevent the disappearance or destruction of evidence of crime. - Reasoning: The Balancing Test Court determines that there is no governing case law or constitutional provision here, so it rests upon a balancing test. o Government Interests Involved: 1) One general interest is of course that of effective crime prevention and detection; it is this interest which underlies that recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. 2) There is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. o Individual Interests 1) The Intrusion on the Individuals Interests o Court: Finds that the balancing of interests weighs in favor of the officer/government, and therefore the stop-and-frisk was reasonable. Holding: - The court does deem the search here to be reasonable, but the holding is incredibly narrow almost restricting it to the facts of the case. o Restricted to searching for weapons during a stop-and-frisk. The Plain Touch Rule: - If the police are frisking for a weapon under Terry, and they feel something that is immediately apparent that it is contraband, then you can reach in and pull it out. o If you have to manipulate the pocket, then it isnt immediately apparent and the search is outside the scope of Terry (Minnesota v. Dickerson)

Special-Needs Search: - An administrative-based seizure/search that is justified by the same rationale as Terry o Example: Drunk Driving Check-point The police dont have probable cause to believe that every driver is drunk, but they stop them anyway. Michigan v. Summers - Court upholds a seizure on a resident of a house during the performance of a search warrant. - The detention of one of the residents while the premises where searched, although admittedly a significant restraint on his liberty, was surely less intrusive than the search itself. Dunaway v. New York (1979) - Police picked up the defendant as a suspect in an attempted robbery and homicide, placed him in an interrogation room and questioned him after giving him his Miranda warnings. - Court found that the application of the Fourth Amendments requirement of probable cause does NOT depend on whether . . . *his detainment+ is termed an arrest under state law. o Therefore, the experience of the defendant in Dunaway is nothing like the brief stopand-frisk in Terry. Terrys Reasonable Stop-And-Frisk Elements: - The officer does not need probable cause rather, he just needs: o (a) Reasonable suspicion that the defendant was engaged in some criminal activity to perform the initial stop (seizure), and Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot . . . o (b) Reasonable suspicion that the defendant was presently armed and dangerous to frisk the defendants. . . . and that the persons with whom he is dealing may be armed and presently dangerous. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. - In Terry, the officers observations of the defendants behavior which could be innocent activity coupled with the officers inferences drawn from that behavior, was sufficient. 3/21 CLASS NOTES Stop & Frisk: - Terrys Holding o Where a poilice officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous; where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries; and where nothing in the initial states of the encounter serves to dispel his reasonable fear for his own or others safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer

clothing of such persons in an attempt to discover weapons which might be used to assault him. VERY VERY narrow holding Doesnt use the term reasonable suspicion, but that is how the holding has been interpreted Reasonable Suspicion: - Standard for allowing the search and seizure in a Stop and Frisk situation. - Is a lesser standard than Probable Cause: o Probable Cause has 3 interrelated aspects/factors: 1) Quantity of information or evidence required for probable cause Judged by an objective standard Is the information sufficient to warrant reasonable belief that the police action is justified? Does the information show a substantial, fair or reasonable probability that the action is appropriate? 2) Quality of information required for probable cause Requires trustworthy, reliable sources o information o Either personal knowledge of the police, credible informants, or otherwise reliable information o Is the informant anonymous or reliable? 3) Police must Articulate particular, concrete facts and circumstances, which together with the reasonable inferences from them, justify the police action The police cannot rely on mere hunches or conclusions without giving their factual basis. - Likewise, Reasonable Suspicion likely also requires the same 3 prongs be analyzed, but with a lesser standard. o 1) Quantity Same approach as Gates, but with a lower amount of evidence required o 2) Quality Same approach as Gates, but with a lower standard of reliability required o 3) Articulation Police must still identify what they observed or learned, and the inferences they drew, in order to justify the stop-and-frisk after the fact. Sibron v. New York 1968, US Supreme Court - Officer observed defendant Sibron continually in a particular vicinity from 4pm to midnight. o Also witnessed Sibron talking with 6-8 persons who the officer knew were drug addicts. He did not hear the conversations, nor did he see anything passed between the two. - When the officer later saw Sibron in a restaurant, eating pie and coffee and talking with other drug addicts, the officer asked Sibron to step outside and stop-and-frisked him. - Court: o The observations here were not sufficient here. o While no hard-and-fast rule can be drawn, I would suggest that one important factor, missing here, that should be taken into account in determining whether there are reasonable grounds for a forcible intrusion is whether there is any need for immediate action.

Florida v. J.L. 2000, US Supreme Court - An anonymous call alerted police of a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. o Officers went and found a person, but did not see any firearm or unusual movements. o They frisked the suspect, and found a gun. - Court: o Determined the stop-and-frisk was unreasonable, since no reasonable suspicion could be found. o Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, an anonymous tip alone seldom demonstrates the informants basis of knowledge or veracity. The tip in the instant case lacked the moderate indicia of reliability present in White and essential to the Courts decision in that case. White anonymous tip gave detailed information about the suspect, her dress, her vehicle and her destination. o The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun, nor supplied any basis for believing that he had inside information about J.L. Illinois v. Wardlow 2000, US Supreme Court - Chicago officer came upon a person in a high-crime area who saw the police and ran away. - Court: o The officers stop-and-frisk did not violate the Fourth Amendment. o While (a) an individuals presence in an area of expected criminal activity is NOT enough, and (b) an individuals running from the police is NOT enough, the combination is enough for the court here. Head-long flight where it occurs is the consummate act of evasion; it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. o So [Bad Area] + [Fleeing from Police] = Reasonable Suspicion. SCOPE OF FRISK: - Terry o Scope must be limited by the initial justification for the search Concern about a weapon? Then the scope must be limited to finding a weapon in order to be reasonable E.g. The search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objected which might be used as instruments of assault. o Terry: The sole justification of the search in the present situation is the protection of the police officer and other nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer. He did not place his hands in their pockets or under the outer surface of the garments until he had felt

weapons, and then he merely reached for and removed the guns. Cannot go into the guys pockets for narcotics when only weapons are at issue.

Scope of Seizure: - Terry: o The seizure must be strictly tied to and justified by the circumstances which rendered its initiation permissible. o Inquiry: Whether it was reasonably related in scope to the circumstances which justified the interference in the first place. o Test (from Royer, Hensley, McArthur) Scope in the broad sense include 2 factors: 1) Duration/Length o Dunaway: Moving the suspect to another location may indicate that the officer has exceeded his Terry authority. o Sharpe: A 20-minute detention of a defendant fails to meet the Fourth Amendments requirement of brevity in a stop-andfrisk situation. 2) Intrusiveness o While a Terry stop may be rendered unlawful because the officer used a threat or show of force suggestive of the making of a full-fledged arrest, such as drawing a weapon, handcuffing the suspect, or placing him in a squad car, such tactics do not inevitably establish that the officer exceeded his authority under Terry. o Royer: Police overstepped their Terry authority when they moved the defendant to an airport police officer and requested consent to search his suitcases. The record does not reflect any facts which would support a finding that the legitimate law enforcement purposes which justified the detention in the first instance were furthered by removing Royer to the police room prior to the officers attempt to gain his consent to a search of his luggage. BUT: *If] had Royer consented to a search on the spot, the search could have been conducted with Royer present in the area where the bags were retrieved by Officer Johnson and any evidence recovered would have been admissible against him. o Caballes: Use of the *drug-sniffing] dog does NOT unjustifiably enlarged the scope of a routine [Terry] traffic stop into a drug investigation. In our view, conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed respondents constitutionally-protected interest in privacy. Our cases hold that it did not.

Standard: It is nevertheless clear that a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringed interests protected by the Constitution. A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. For Both Prongs, it is proper to take into account the offense reasonable suspected at the outset, and also other offenses reasonably suspected as a result of information previously obtained lawfully during the stop. Medrano: Officer did not exceed scope of stop by inquiring if defendant possessed drugs, as while stop was on reasonable suspicion of robbery, there then developed reasonable suspicion of drug possession. Once the police start reaching into a persons pockets during a Terry stop-and-frisk, then it is a complete search and the officer needs probable cause. Would have to feel a weapon or immediately-identifiable contraband in order to conduct a further search.

Note: Seizure - Question: Would a reasonable person feel free to leave? 1) Was there a Fourth Amendment event? 2) What type of Fourth Amendment event? - Stop & Frisk - Stop - Full Seizure - Full Search - Search Incident to Arrest - Inventory Search 3) What standard is required to justify the Fourth Amendment event? - Reasonable Suspicion - Probable Cause 4) What, if anything, lessens the standard to justify the Fourth Amendment event? - Exigent Circumstances - Safety or Protection of Evidence at Issue? 5) What is the scope of that Fourth Amendment event? 6) What, if anything, allows the police to go beyond that scope?

3/27 Michigan v. Long 1983, US Supreme Court: - Officers saw a car swerve into a ditch and stopped to investigate. o Officers then saw a large hunting knife on the floorboard, so the driver was frisked and one officer then entered the vehicle and found contraband under an armrest.

Court: o Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational interferences from those facts, reasonably warrant the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.

Administrative Inspections and Regulatory Searches: - Include: o Safety Inspections o Border Searches o Vehicle Checkpoints o Terrorist Checkpoints o Search of Students o Drug Testing - All are upheld under a special needs theory o To prevent drunk driving o To prevent illegal immigration o To prevent terrorism o To prevent school violence - Generally a balancing test of individual privacy interests vs. special needs to protect the safety of the citizenry. o Drug Testing: A balancing process was proper, in which the Governments compelling interests in preventing the promotion of drug users to positions where they might endanger the integrity of our Nations borders or the life of the citizenry outweigh the deiminished expectation of privacy of those who seek promotion to these promotions. Consenting and Searches - 1) What is necessary for the consent to be valid? - 2) Who has authority to give consent? - 3) What is the scope/limitations on a search once consent has been obtained? Schenckloth v. Bustamonte 1973, US Supreme Court - A passenger consented to a search of a vehicle which belonged to his brother during a traffic stop, o The driver even helped in the search of the car. o Stolen checks were then found under the seat, which led to charges against another of the passengers, Bustamonte. - Discussion:

Holding: When the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that is demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. The Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. Standard: Voluntariness is a question of fact to be determined from all of the circumstances. Note: While the subjects knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. And the court rejects the suggestion that police alert suspects that they can refuse to consent to the search feel that it is too impractical. Different from giving Miranda because, the techniques of police questioning and the nature of custodial surroundings produce an inherently coercive situation. Factors to Consider to determine whether it was Valid consent: Internal Factors: Age? Education? Mental intelligence? Prior experience with the police? External Factors: Where is the search taking place? Are the police in uniform? Do the police have their weapons drawn? Was there a threat of incarceration? This is a subjective standard did this specific person voluntarily consent to the search?

Fruit of the Poisonous Tree: - Like other Fourth Amendment evidence issues, a consent may be held ineffective because *it was+ obtained in exploitation of prior illegal *action+. Scope of Consent - The scope is neither the suspects intent nor the officers perception thereof, but rather that of objective reasonableness. o What would the typical reasonable person have understood by the exchange between the officer and the suspect? o Example: It is very unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk, but it is otherwise with respect to a closed paper bag. - The scope of the search is generally defined by its expressed object of the search. Who can Give Consent - Must be: o 1) A party who owns the property o 2) A third party who possesses common authority over the premises.

Illinois v. Rodriguez, 1990 Common authority rests on mutual use of the property by persons generally having joint access or control for most purposes. Note: When you share joint access to a backpack, you are allowing the risk that the other person will consent to that search. o So the police dont have to get consent from both parties before the search, just one. 3) If the police have a reasonable belief that the person consenting has the authority to do so. What we hold today does not suggest that law enforcement officers may always accept a persons invitation to enter premises. Even when the invitation is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry. Standard: An objective standard: Would the facts available to the officer at the moment . . . warrant a man of reasonable caution in the belief that the consenting party had authority over the premises? If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid. The Constitution is no more violated when officers enter without a warrant because they reasonably (though erroneously) believe that the person who has consented to their entry is a resident of the premises, than it is violated when they enter without a warrant because they reasonably (though erroneously) believe they are in pursuit of a violent felon who is about to escape.

3/27 Further notes on Consent: - Who can consent? o Child-Parent If a child is living at home, his parents can consent to a search of the childs living quarters. A child cannot give consent to a full search of the parents house. o Husband-Wife: Husband and wife can both give authority to search a home or separate area, as long as either party could have entered that building at any time. No per se rule that common authority extends everywhere, though. - Common Authority o Situations where more than one person can consent to a search Two or more people share a privacy interest in the same place or same thing. o Challenging Search: This shared reasonable expectation of privacy also gives standing to challenge the search. Police Interrogation & Confessions - Non-Constitutional Basis for Challenging the validity of a Confessions: o 1) As the Fruit of a Poisonous Tree If the arrest was illegal, then the subsequent interrogation is also invalid. - 3 Constitutional Basis for Challenging the validity of a Confession

1) Due Process, under the 5th and 14th Amendment Original Test - The Voluntary Test: Was the confession voluntary or coerced, looking at the totality of circumstances? Factors o Internal characteristics of the person giving the confession Intelligence Physical Health Emotional Characteristics Age Education Prior criminal record o External details of the interrogation Was there sleep deprivation How long the interrogation lasted Whether the suspects request for a lawyer had been denied. Reasoning: o Concern about torturing and coercing an arrestee o Concern about eliciting unreliable testimony Individuals interest in not being convicted for a crime they didnt commit Societys interest in crime prevention, but convicting the proper individual. Short-comings of this test: o So fact-specific that it needed to be determined on a case-bycase basis. o Did not give the police much guidance as to what tactics were/were not allowed. 2) Right to Counsel, under the 6th and 14th Amendment Defendant is not entitled to assistance of counsel unless: 1) Adversary judicial proceedings have commenced, AND o The Sixth Amendment right to counsel is guaranteed only in all criminal prosecutions o See exception in Escobedo below. o See also Massiah for 3rd-party interrogations. 2) The encounter is a critical stage of the criminal proceeding. o A person is entitled to the help of a lawyer assuming the stage of the prosecution is a critical one at or after the time that judicial proceedings have been initiated against him whether by way of formal charge, preliminary hearing, indictment, information, or arraignment [presumably as early as the first appearance before a judicial officer+. (Brewer) Prior to judicial proceedings, the privilege against self-incrimination is governed by Miranda. 3) Privilege against Self-Incrimination, under the 5th and 14th Amendment

Massiah v. United States 1964, US Supreme Court - Defendant retained counsel and was set free on bail. o His car was bugged and he confessed to something therein - 6th Amendment Violations: o The defendant was denied the basic protection of right to counsel When there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel. In this case, Massiah was more seriously imposed upon . . . because he did not even know that he was under interrogation by a government agent. o The fact that the defendant had already been indicted is a key fact The decisive feature of the case was that after he had been indicted and therefore at a time when he was clearly entitled to a lawyers help and at a time when he was awaiting trial in an orderly courtroom, presided over by a judge, open to the public, and protected by all the procedural safeguards of the law Massiah had been subjected to a completely extrajudicial Escobedo v. Illinois 1964, US Supreme Court - Defendant is arrested, questioned without making a statement, and is released o Defendant retains counsel - A third party incriminates the defendant to the police, and he is re-arrested. o During the second arrest: Police identify the third party that stated that the defendant committed the crime Defendant asks for a lawyer, and police deny him that right The lawyer shows up at the police station, and the police refuse to let him see his client Police then set up a confrontation between the witness and the defendant. The defendant then admitted to participating in the murder plot, but identified the person who shot the person. - Discussion: o 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 beings to operate and, under the circumstances here, the accused must be permitted to consult with his lawyer. So, the right to counsel begins even before indictment has occurred and the judicial proceedings have begun IF the police have moved from investigatory to accusatory. The investigation had ceased to be a general investigation of an unsolved crime. 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. - Note: o Escobedo has later been redescribed as a 5th Amendment case, and the court took the descents approach Rule: The 6th Amendment Right to Counsel is only triggered when there is an official criminal prosecution at issue.

3/2 1) Due Process o Test: Voluntariness of the Confession, when looking at the totality of circumstances 2) Right to Counsel (6th Amendment/14th) o Test: Absence of Counsel, unless a waiver occurred, means that a confession is invalid when this 6th Amendment/14th Amendment right is triggered. Triggered when there is a criminal prosecution. 3) Privilege against Self-Incrimination (5th Amendment/14th)

5th Amendment Privilege against Self-Incrimination - Malloy v. Hogan, 1964: o 1) Allows for the 5th Amendment to be incorporated to the states via the 14th Amendment o 2) The admissibility of confessions in state court is governed by the 5th Amendment privilege analysis (Self-Incrimination Test in Malloy: Whether the confession was voluntary). - Miranda v. Arizona, 1966 o Holding: The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Custodial Interrogation Questioning initiated by law enforcement officers after a person has been taken away into custody or otherwise deprived of his freedom of action in any significant way. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. o When Miranda Applies: Custodial Interrogation Custodial Interrogation triggers the 5th Amendment Miranda Requirements. Custodial Interrogation Questioning initiated by law enforcement officers after a person has been taken away into custody or otherwise deprived of his freedom of action in any significant way. Must be both (a) Custody/Deprivation of Freedom and (b) Interrogation Court: custodial interrogation is inherently coercive, and therefore procedural safeguards are necessary. o Isolated o Incommunicado o Police position of authority and domination o Miranda Procedural Safeguard Requirements: 1) Right to remain silent 2) Warning that anything he or she says can be used as evidence against them 3) Warning that he has the right to the presence of an attorney, either retained or appointed. 4) Warning that if arrestee does not have the means to retain an attorney, one will be provided for him. o If the Rights have been invoked/waived?

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. Waiver: The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. Miranda Right of Refusal: The arrestee has the right to refuse to answer questions: If the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. Standard: Court doesnt set forth the specific language police must use to advise arrestees of their procedural rights set forth in Miranda Leaves that up to the legislature and police administrators. BUT they must be fully effective means . . . to notify the person of his [rights]. We hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. [The safeguards are then repeated+. No longer a test of voluntary under a totality of circumstances 5th Amendment Now, for a confession to meet 5th Amendment standards, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored. Rule: Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice. o In sum, the privilege is fulfilled only when the person is guaranteed the right to remain silent unless he chooses to speak in the unfettered exercise of his own will. Therefore, an arrestees confession is only valid under the 5th Amendment when notification of rights have been given and those rights have been waived and the waiver is made voluntarily, knowingly and intelligently.

3/4 Note: o The warnings in Miranda are not necessary as long as there is some other procedural safeguard that gives notification of such rights, and allows for a continuing opportunity to use those rights. Miranda Dissent: - The majority should not have relied on the police manuals, since (a) they were not evidence in this case, (b) they were never proven as the official manuals, (c) there is no evidence that those manuals demonstrate what is actually occurring in police interrogation rooms and (d) the manuals were created 6 years prior. - Also, the effect of this decision is to bring even more challengeable issues before the court. -

Post-Miranda - Held that a Miranda violation is NOT a constitutional violation o They are procedural guidelines in order to support the 5th Amendment Legislation Passed (3501) - Congress attempts to overrule Miranda with legislation. o Did not include the Miranda warnings as necessary. - Rule: A confession can be given voluntarily, and still be constitutionally valid, even if the absence of the Miranda warnings. o So the Due Process voluntariness test under the totality of circumstances is still the test for determining admissibility. Dickerson v. United States 2000 - Held that Miranda governs the admissibility of statements as it IS a constitutional rule. o And because it is a constitutional decision, these Miranda safeguards cannot be overruled by 3501 o Support: Many of the post-Miranda decisions applying and limiting the Miranda requirement arose in decisions from state courts, and the Court lacks supervisory power over the states for NONconstitutional rules. - Solves a Fruit of the Poisonous Tree Problem: o In order for a Miranda violation to lead to an exclusion of the confession, the violation must be constitutionally-based. Prior cases held that, since Miranda wasnt a constitutional rule, the confessions were not fruit of the poisonous tree and therefore need not be excluded. - NOTE: The Court never says that a violation of Miranda is a violation of the 5th Amendment. o They simply state that it was a constitutional decision.