Professional Documents
Culture Documents
Terms: Investigate (Cops & Robbers!): 1. Investigation 2. Search and seizure 3. Interrogation 4. Identification procedures 5. Arrest Adjudicate (Bail & Jail): 1. Complaint 2. (Probable cause) hearing 3. First appearance 4. Preliminary hearing/grand juries 5. Arraignment 6. Pretrial Motions 7. Trial Sentencing: 1. Sentencing 2. Appeal 3. Habeas Recurring Themes: Philosophical: asking why and how we balance questions to figure out what type of system we should have Deontological thinkers- right or wrong (ex-post Consequentialist thinkers- case-to-case (ex-ante) Views Ex-Post
The ex post perspective is backward looking. From the ex post point of view, we ask questions like: Who acted badly and who acted well? Whose rights were violated? Roughly speaking, we associated the ex post perspective with fairness and rights. The ex post perspective in legal theory is also loosely connected with deontological approaches to moral theory. In general jurisprudence, we might associate the ex post perspective with legal formalism.
Ex-Ante
The ex ante perspective is forward looking. From the ex ante point of view, we ask questions like: What affect will this rule have on the future? Will decision of a case in this way produce good or bad consequences? Again, roughly speaking we associate the ex ante perspective with policy and welfare. The ex ante perspective in legal theory is loosely connected with consequentialist (or utilitarian or welfarist) approaches to moral theory. In general jurisprudence, we might associate the ex ante perspective with legal instrumentalism (or legal realism).
Literary: interpreting the Constitution Originalism: intent of the author versus text Living Constitution: Adapt it for today (evolving), terms left vague to be interpreted Competing Values Privacy v. security Individuality v. crime control State v. federal
4th Amendment
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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. Two general parts: Reasonableness Clause: Prohibits o Who is covered: the people o What is covered: persons, houses, papers, and effects o The nature of the protection: to be secureagainst unreasonable searches and seizures. Warrants Clause: o What is required: probable cause, supported by oath or affirmation o Form of the warrant itself: particularly describing the place to be searched, and the persons or things to be seized. Does the comma mean that the second clause informs the first? Framers reason for the text: to curb the exercise of discretionary authority by officers. What values inspired the Framers in drafting the 4th? o Sacred and incommunicable right to private property o Legitimate expectations of privacy o Physical entry of the home is the chief evil Two Theories of the 4A Warrant preference: Warrant clause modifies reasonableness clause. Searches generally unreasonable unless authorized by a warrant (most-rights protective theory) Middle theory: all searches and seizures require probable cause but necessarily a warrant Reasonableness theory: Warrant clause and reasonableness clause independent. All searches and seizures just have to be reasonable, as defined on ad hoc basis (least rights-protective)
Checklist 1) Was this a search/seizure? (if no, inquiry ends- no constitutional question) 2) If yes, was is constitutional? (if yes, inquiry ends) 3) If no, what is the remedy? a. Exclusion of evidence b. 1983 claims c. 4) Does D have standing to raise a 4th challenge to the specific item of evidence in question? a. If no evidence is admissible b. If yes analysis continues 5) Is D among the people protected by 4th? 6) Did the police activity implicate a person, house, paper, or effect? 7) Did the police activity constitute a search and/or seizure? 8) Was the search and/or seizure reasonable or unreasonable? a. Did the police have adequate grounds to conduct the search and/or seizure? i. Probable cause ii. Reasonable suspicion b. Even if the police acted on the basis of probable cause, did the police obtain a search warrant or arrest warrant? i. If no Did the police have a valid reason for not obtaining the warrant? ii. If yes Was the warrant obtained in the proper manner? Was the party issuing the warrant a neutral and detached magistrate? Was the warrant in proper form? Did the Police execute the warrant properly?
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Two interpretations: (2) A governmental search that does not impinge upon a person, house, paper, or effect is not a search or seizure w/in 4th. (3) 4th only prohibits unreasonable searches of persons, houses, papers, and effects. Persons: o Body o Exterior of Ds body (clothing) o Interior of Ds body (blood tested for alcohol) o Conversations (Olmsted) Houses: o All structures that people commonly use as a residence, whether temporary or long-term. o Includes building attached to the residence and curtilage o Does not apply to open fields (undeveloped areas outside the curtilage) o Offices, stores and other commercial buildings, however there is less expectation of privacy. Paper and Effects o Letters, diaries, business records o Automobiles, luggage, other containers o Less inclusive than property
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Olmstead v. United States [1928] Wire Tapping = Search (4A only protects tangible property) [Opinion: Taft]
Facts: D used telephones in a home office connected to the homes of associates to coordinate illegal liquor sales. Fed. prohibition officers intercepted messages on the telephones by inserting wires along the telephone wires (w/o trespassing upon Ds property). Officers listened to conversations to obtain evidence of criminal acts. Holding: Wire tapping does not amount to a search/ seizure w/in the meaning of 4th bc the evidence was secured by the use of hearing only, NOT entry of the houses or offices of Ds. One who installs a telephone intends to project his voice to those outside. Wires/messages are not w/in protection of 4th Must be an official search and seizure of his person/papers/tangible material effects or an actual physical invasion of his house or curtilage to be a seizure. Comparison to evidence obtained through deception (unethically secured). Policy: if evidence was forbidden society would suffer and criminals would have greater immunity. Exclusion of evidence should be confined to cases where rights under the Constitution would be violated by admitting it.
[Dissenting: Brandeis][PRIVACY]
Gov.s wire tapping constituted an unreasonable search/seizure in violation of 4th o Use as evidence of the conversations overheard compelled the Ds to be witnesses against themselves violation of 5th Subtler and more far-reaching means of invading privacy have become available to the gov.
in the application of a Constitution, our contemplation cannot be only of what has been, but what may be. Pg. 10.- alluding to developments in technology
Founders believed in the right to be let alone
The greatest dangers to liberty lurk in insidious encroachment by men of zeal, wellmeaning but without understanding. Pg. 11. every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the fourth amendment The door of a court is not barred because the plaintiff has committed a crime. Pg. 12
In WA wire tapping is a crime fed. ct. should not permit to continue (unclean hands) If gov. becomes lawbreaker breeds contempt for law invites every man to become a law unto himself invites lawlessness Amicus curiae brief: when lines of two parties are connected at the central office, they were intended for exclusive use and for exclusive use of the parties. 3rd person violates property rights of bother persons AND the telephone company. Franks: Brandeis is the champion of privacy and thinks the gov. is coming up w/ various ways to invade privacy. The most important right is the right to be left alone.
[Dissenting: Holmes]
Two objects of desire: o Criminals should be detected o The government should not foster and pay for other crimes when they are the means by which the evidence is to be obtained Less evil that some criminals escape than that the gov. should play an ignoble part Emphasis: evidence obtained by fed. agents in violation of state law should be inadmissible
[Dissenting: Butler]
Contracts btw telephone companies and users contemplate the private use of facilities Communications belong to the parties btw whom they pass (property)
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*Conversations are not persons, house, papers, or effects, so they are unprotected; the houses and offices from which the conversations arose are protected by 4th, but only from physical intrusions or trespasses; eyes and ears cannot search or seize, as neither can trespass; and the wiretaps used to listen (which can trespass) did not bc they were installed on telephone lines outside Os property.
Katz v. United States [1967] Wire Tapping= Search (people not places) [Opinion: Stewart]
Facts: FBI agents attached an electronic listening and recording device to the outside of the public telephone booth from which K placed his calls. Holding: The Governments activities in electronically listening to and recording Ks words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a search/seizure w/in the meaning of 4th. 4th does not necessarily turn on constitutionally protected area and there is no general constitutional right to privacy. 4th protects people, not places.
o What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th Amend. protection. Pg. 18
K sought to exclude the uninvited earshut the door behind him, pays the toll entitled to assume the words he utters will not be broadcast to the world. Effectively overrules Olmstead Departs from Olmstead: 4th governs the seizure of tangible items AND the recording of oral statements overheard w/o any technical trespass under local property law. Marks the shift from property to privacy Cautious- 4A is not a general constitutional right of pivacy Franks: moved away from only caring about trespass. Twofold requirement: Does it violate a Constitutional right? 1. Person have exhibited an actual expectation to privacy (subjective) 2. The expectation be one that society is prepared to recognize as reasonable (objective) Booth was a temporarily private place whose momentary occupants expectations of freedom from intrusion are recognized as reasonable. Textual o Language: conversation is not tangible and cannot be searched/seized o Framers were aware of eavesdropping and did not use language to outlaw or restrict use of such evidence. Tapping telephone wires is modern day eavesdropping. Does not believe it is proper for the court to rewrite the Amend. to bring it into harmonies w/ the times o Court is rewriting 4th
[Dissenting: Black]
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Open fields doctrine: o Entry and exploration of open fields does not amount to a search w/in the meaning of the 4th. o Announced prior to Katz, reaffirmed after Katz and Oliver
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o Oliver: people do not have a legitimate expectation of privacy in activities occurring in open fields, even if the activity occurring there could not be observed from the ground except by trespassing in violation of civil or criminal law. Open fields do not constitute a search Framers believe certain enclaves, like a house, should be free from governmental interference. In contrast, open fields do not provide the setting for those intimate activities 4th is intended to shelter from government interference or surveillance. An expectation of privacy in an open field is never legitimate. o For 4th analysis, must distinguish btw: (1) a house; (2) curtilage to a house; and (3) an open field.
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Chapter 2: Searches
If the police activity does not constitute a search 4th does not apply! Pre-Katz Analysis o Boyd: the invasion of a mans indefeasible right of personal security, personal liberty, and private property. o Physical intrusiona trespassinto a constitutionally protected area o Olmsted: phone conversations are not protected as effects because they are intangible, therefore unprotected. The houses and offices are protected only by physical intrusions or trespasses. Post-Katz Analysis o Buried the trespass doctrine o What a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. o By shutting the door on the booth and paying the toll, K was entitled to assume his words would not be broadcast to the world. o Reasonable expectation of privacy standard Individual must exhibit an actual (subjective) expectation to privacy Must prove that the expectations he exhibited is one that society is prepared to recognize as reasonable, legitimate, or justifiable (one that an ordinary person might possess) If either prong is lacking not a search Warren courts criminal procedure revolution Objective prong: o Site or nature of the property inspected 4th protects people, not places o Extent to which a person has taken measures to keep information, his property, or an activity private No expectation for what an individual knowingly exposes to the public or is in open view One who voluntarily conveys info or property to another person assumes the risk. o Degree of intrusion Helicopter constitutes search depending on noise and dust disrupting legitimate activities.
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[Dissenting: Douglas]
Eavesdropping is not the same as electronic surveillance o Bill of Rights should not be read to cover only technology of the 18th century o Strict Construction: text should be read narrowlyFounders wanted to protect from an allpowerful government Uncontrolled surveillance will lead to a police state o Pre-arranged episode of surveillance, no excuse for not seeking a warrant o 4th was designed not to protect criminals but to protect everyones privacy. Pg. 48. Free discourse (1st value; also 4th, 5th) is not free if there is surveillance Magnitude of police utilization of this technique: Orwellian society Difference btw relaying information and conspiring to betray and transmit what is said o Distinction btw 3rd party monitoring and other undercover techniques o Two assumptions: There is no greater invasion of privacy in 3rd party situation Uncontrolled consensual surveillance in an electronic age is a tolerable technique of law enforcement, given the values and goals of our political system Assess the nature of the practice and its likely impact on the individuals sense of security against the utility of the conduct as a law enforcement technique o Impacts of 3rd party bugging: undermines confidence and security Monitoring undermines confidence and security w/ one another that is characteristic of individual relationships btw citizens in a free society. o Fear to make basic social regards Warrants should be necessary.
[Dissenting: Harlan]
*Assumption-of-risk analysis of Hoffaa person does not have a justifiable and constitutionally protected expectation that a person w/ whom he is conversing will not then or later reveal the conversation to the police (Using Katz: there is no 4th protection bc by speaking, a person knowingly exposes his thoughts to another, and, therefore, the public.) *No difference btw a pure false friend case (X converses w/ D and then testifies recollection at trial of the conversation) and the situation in which X uses more reliable technique of recording the conversation (wired false friend)
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False Friends: o A police informant or covert police agent insinuates himself into Ds confidence to get incriminating evidence. o Pure version: person gathers info and reports to law enforcement o Wired false friend: friend has a hidden transmitter that permits the police to monitor the conversation. o Not considered a search because of assumption of risk o When a person voluntarily speaks to another, the possibility is inherent in the conditions of human society that the listener is not whom he claims to be.
[Dissenting: Brennan]
Accused had a reasonable expectation of privacy in his bank statements and records, the voluntary relinquishment of such by the bank at the request of the sheriff and prosecutor did not constitute a valid consent by the accused illegal search/seizure. Disclosure of financial affairs is not entirely voluntary bc it would be impossible to participate in economic life of contemporary society w/o a bank account. Franks: court equates privacy and secrecy . . . if it is not private, then it is not secret.
[Dissenting: Marshall]
Bank Secrecy Act requires maintenance of bank customers records o Marshall thinks it is a seizure and unconstitutional bc there is no warrant/probable cause W/o a remedy until it is too late M does not have standing to contest Gov.s subpoena to the bank
*A bank customer has no legitimate expectation of privacy in financial information that he voluntarily conveys to bank employees in the ordinary course of business. No search occurs, therefore, if the bank hands over the customers financial records to the government.
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Only violates 4th if respondents manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable. o Respondents exposed their garbage to the public --. Readily accessible to animals, children, scavengers, snoops, and other members of the public. P. 63 o Trash was put outside to convey to a 3rd party, who could have looked through it Police do not have to avert their eyes from evidence of criminal activity that could have been witnessed by any member of the public. Society as a whole possesses no expectation of privacy w/ regard to garbage left for collection at the side of a public street. Notice: court does not say effects bc Katz got rid of that standard and moved to privacy.
*Court moves to the objective prong w/o significant discussion of the subjective factor (respondents did not expect that the contents of their garbage bags would become known to the police or other members of the public.). Might have a subjective claim, but fails objective bc of animals, children, scavengers. . . *No reasonable expectation of privacy in garbage NO SEARCH OCCURS *Court uses two search rules: 1. Katz and aerial surveillance: 4th does not protect information knowingly exposed to the public 2. One cannot have a reasonable expectation of privacy in information voluntarily turned over to others *Bc private persons might snoop, individuals have no constitutionally recognized reasonable expectation of privacy when and if the policenot private personsin fact snoop.
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taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by 4th. Any person with a plane and camera could have seen it State tort law governing unfair competition does not define limits of 4th o Gov. took photos to regulate, not compete w/ DC o Only photos taken w/ intent to use trade secrets may be proscribedno prohibition of photos taken by a casual passenger on an airline or a company producing maps for its mapmaking purposes. Industrial curtilage: o Gov. has greater latitude to inspect commercial property bc the owner enjoys the property differently than the sanctity of an individuals home. Com. Prop. Subject to regulatory inspections. o EPA employed a conventional camera used in mapmaking, not some unique sensory device o Photographs do not reveal intimate details to raise constitutional concerns o Enhanced vision does not raise constitutional problems Court is retreating from standard that ensured 4th rights as technology expanded the Gov.s capacity to intrude into private areas and activities. DC took extensive measures to ensure privacy on ground level DC did everything commercially feasible to protect confidentiality Court repudiates Katz by saying 4th protects DC only from actual physical entry o Physical trespass is irrelevant for 4th analysis, must evaluate reasonable expectation to privacy DC has a reasonable expectation to privacy bc it has taken every feasible step to protect information o EPAs conduct intruded on expectation Camera saw more than the eye could see not equitable to casual observation by passengers Court should not evaluate the method of surveillance
[Concurring in part and dissenting in part: Powell, Joined by Brennan, Marshall, and Blackmun]
*Not a search bc the EPA was not employing some unique sensory device that could penetrate walls of buildings and record conversations. Katz doctrine seems to require a court to consider the nature of the technology used and the nature of the place being observed (commercial property). Aerial Surveillance: o Aerial surveillance by the gov. of activities w/in the curtilage of a house does not constitute a 4th search if the surveillance: (1) occurs from public navigable airspace (2) is conducted in a physically nonintrusive manner; and (3) does not reveal intimate activities traditionally connected w/ the use of a home or curtilage.
Florida v. Riley [1989] Aerial view by helicopter [Opinion: White, joined by Chief, Scalia, and Kennedy]
Facts: R lived on 5 acres of property w/ greenhouse 10 to 20 ft. behind the mobile home. 2 sides of greenhouse were enclosed; the other sides were obscured from view by tress, shrubs, and home. Greenhouse was covered by roofing panels, but had 10% of panels missing. Wire fence surrounded area w/ Do Not Enter sign. Anonymous tip of marijuana growth, so officers circled twice in a helicopter at 400 ft, saw through roof, obtained a warrant, and found marijuana. Holding: 4th does not require the police traveling in the public airways to obtain a warrant to observe what is visible to the naked eye. Property is w/in curtilage Court relied Ciraolo where from an aerial 1000ft the court did not find a search, where as here it was from 400ft Different result if flying as low as 400ft was illegal R could not reasonably have expected the contents of greenhouse were immune from examinations from navigable airspace bc sides and roof of greenhouse were left partially open.
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o Private/commercial flight by helicopter is routine Does not matter that helicopter was at 400 ft. o Would be different if helicopter was flying contrary to law or regulation o Any member of the public could legally fly over Rs property and observepolice officer did no more Helicopter did not interfere w/ Rs use of greenhouse or other parts of curtilage (no wind, dust, noise, threat of injury)
[Concurring: OConnor]
Clarifies Ciraolo: court relies too much on compliance w/ FAA regulations whose purpose is to promote air safety, not to protect 4th. o Ciraolos expectation to privacy was unreasonable not bc the airplane was where it had a right to be, but bc public air travel at 1,000 ft. is a routine part of mod. life and its unreasonable for persons on the ground to expect their curtilage will not be observed. Observations from helicopters ground-level observations from public road or sidewalks o Cannot cover and enclose curtilage to block aerial views Relevant inquiry: whether the helicopter was in the pub. airways at an altitude at which members of the public travel w/ sufficient regularity that Rs expectation of privacy from aerial observation was not one that society is prepared to recognize as reasonable. o Not conclusive that any member of public could legally fly over Rs property at 400 ft. or that police helicopters may often fly at 400 ft. If the public can generally be expected to travel over residential backyards at an altitude of 400 ft. no reasonable expectation that curtilage is free from such aerial observation There is considerable public use of airspace at altitudes of 400 ft., so R did not have reasonable expectation that his curtilage was protected from naked-eye aerial observation. Does not believe one knowingly exposes an area to the public solely bc a helicopter may legally fly above it. o Expectation of privacy is defeated if a single member of the public could conceivably position herself in area w/out doing anything illegal o Ignores Katz: diminishes the amount of privacy and freedom by police surveillance of something that a passerby readily sees. Just because someone could doesnt mean the will Helicopter is not like standing on a public road and vantage point is not one that any citizen could readily share. o Legal right to be in the position of observance does not suffice Similar to Douglas in White: worried about an oppressive Orwell society
[Notes] Plain view doctrine: bc officers merely observed equipment in plain view form a place they were lawfully entitled to be, they did not conduct a search for 4th purposes (Arizona v. Hicks). *Dissent is saying it goes against Katz. *Suggests that the D must provide facts that would support the claim that his expectation of privacy was reasonable.
Surveillance by Helicopters o Florida v. Riley: officer observed marijuana plants from 400 ft., which was lawful for helicopter flights. Held: not a search. D knowingly exposed his greenhouse to the public bc any member of the public could legally have been flying over Ds property in a helicopter at the altitude of 400 ft. and could have observed his greenhouse. Santiago 13
Would have been different if helicopter was flying below law or regulation. Flying overhead did not reveal intimate details connected w/ the use of the home or curtilage and there was no undue noise, wind, dust, or threat of injury.
Arizona v. Hicks- shots fired, Cops lawfully come to investigate. Saw expensive stereo equipment and recorded serial numbers. Cops had to pick up some. No search as to those they didnt touch.
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Rs could not have had a reasonable expectation of privacy bc the DEA against were already able to identify it as contraband w/ virtual certainty o Only destroyed a small amount of powder Rs had no reasonable expectation of privacy in identity of the powder bc the DEA agent could identify w/ virtual certainty o
*4th does not apply if a private person acts as an instrument or agent of the Government. *Chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy and is not a search.
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Chapter 3: Seizures
Unless the police action is a seizure, the various restrictions of the 4th Amend. do not apply. If seizure
To be lawfully seized must have reasonable suspicion
o Reasonable? Property: search warrant based on probable cause or a justification for not securing a warrant Persons: probable cause to make the arrest and if the arrest occurs in the home a warrant is usually required. Personal seizures: reasonable suspicion. Property: o Seizure of property invades a persons possessory interest in that property. o Tangible property is seized when there is some meaningful interference w/ an individuals possessory interests in the property. Persons: o Arrest of a person constitutes a seizure of that person o When an officer, by means of physical force or show of authority, terminates or restrains a persons freedom of movement through means intentionally applied. o A reasonable person would have believed that he was not free to leave Terry Stops o 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. o A person is seized when the officer either terminates or restrains the individuals freedom of movement through means intentionally applied. Mendenhall Reasonable Person Test o When police-citizen encounters are not clear-cut o Objective component: a person has been seized w/in the meaning of the 4th Amend. only if, in view or all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. o Implication: subjective intention of the police officer to forcibly detain a suspect is irrelevant. Reasonable Person o Presupposes an innocent person o Court evaluates on the assumption that the individual has nothing illegal to hide. California v. Hodari D. o Pursuit-seizure issue o Person has been seized only if a reasonable person would have believed that she was not free to leave is a necessary but not sufficient condition for seizure through show of authority. No seizure when cops chases down an individual unless cop uses force (weapons, touching) or individual submits (Hodari) No seizure when cops board bus and ask to search bags and people so long as consent is voluntary (totality of the circumstances; dont need to inform that they can refuse)(Drayton) Traffic Stop is a seizure of both driver and passenger (Brendlin)
When ambiguous turn to Medenhall test
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*When police question an individual about suspected criminal activity, brief questioning in a public place by itself does not constitute a seizure. Law enforcement officers do not violate 4th prohibition of unreasonable seizures by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen. *Police do not need individualized suspicion as long as they do not induce cooperation by coercive means. *Fact that an officer is uniformed or not and/or visibly armed or not carries little weight in the seizure analysis in the bus-sweep context.
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Facts: Officers saw a car w/ expired registration tags, phoned dispatcher, and learned renewal was being processed. Later officers saw the car was legal through Nov., but pulled it over to verify permit matched the vehicle. Officer recognized passenger, B, recalled he was parole violator w/ outstanding arrest warrant, and called reinforcements. B opened and closed the door. Officer ordered B out of the car at gunpoint, declared him under arrest, searched him, and found syringe cap. Patdown search of driver found syringes and plastic bag of drugs, so she was also formally arrested. Officers searched car and found tubing, scale, and other meth stuff. B argued officers lacked probably cause/reasonable suspicion to make traffic stop. Issue: When a police officer makes a traffic stop, is the passenger of the car seized w/in the meaning of 4th? Holding: Yes, passenger is seized as well and so may challenge the constitutionality of the stop. Person seized when the officer by physical force or show of authority restrains his freedom of movement. o Unintended person may be the object of the detention as long as detention is willful and not the consequence of an unknowing act. o Must be actual submission When ambiguous turn to Medenhall test Seizure occurred when car came to a halt Whether a reasonable person in Bs position when the car stopped would have believed himself free to terminate the encounter b/w police and himself.
DRAYTON ARGUMENT! This case is a CARDrayton was a BUS o Intrusion on privacy and personal security does not distinguish btw passenger/driver Franks: traffic stop curtails a passenger bc it is hard to leave.
o We think that in these circumstances any 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 w/out police permission. Pg. 123
Forth Amendment: Probable Cause Appears in the warrant clause Balances competing needs to safeguard citizens from rash and unreasonable interferences w/ privacy and from unfounded charges of crime while at the same time giving fair leeway for enforcing the law in the communitys protection. Gen. Const. principles: o Text of 4th provides that arrest and search warrants may only be issued if supported by probable cause. o All arrests require probable cause o Probable cause is the default position for searches and seizures of property. Exists when the facts and circumstances w/in an officers personal knowledge, and of which he has reasonably trustworthy information, are sufficient in themselves to warrant a person of reasonable caution in the belief that: o In the case of an arrest, an offense has been committed and the person to be arrested committed it; and o In the case of a search, a specifically described item subject to seizure will be found in the place to be searched. Objective concept o However, in determining what a person of reasonable caution would believe, the court takes into account the expertise of the officer. Probable cause warrant o If no warrant, then court is called on to determine whether officers actions were reasonable. Whren v. United States: subjective intentions play no role in ordinary, probable-cause analysis. Informants: must evaluate the credibility of the source o Gates Totality of the Circumstances test Replaced Aguilar-Spinelli Anonymous letter that was very specific Magistrate must conduct a balanced assessment of the relative weights of all the various indicia of reliability and unreliability attending an informants tip. Probable cause is a fluid concept
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[Concurring: Burton]
Earlier events justified agents steps taken and imposed a positive duty to investigate further to discover or interrupt crime and prevent some or all of its damaging consequences.
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[Dissenting: Douglas]
Arrest made on the mere word of an informer violated the 4thif arrest is made w/out a warrant, the offense must be committed in the presence of the officer OR there must be reasonable grounds to believe the person has committed/is committing a violation of the narcs law. o None of this evidence could have gone to a magistrate o Officers did not know the grounds which the informer based his conclusion Officer must act on some evidence known to him o Even the guilty may not be implicated on suspicion alone
A search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success. Pg. 144.
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Spinelli v. United States (1969) Aguilar-Spinelli Test (superseded by Gates) Facts: Man convicted of traveling for the purposes of conducting gambling operations argues warrant for his arrest lacked probable cause. Holding: Magistrate must be able to make an independent determination there was probable cause to issue a warrant. Test for determining whether or not sufficient evidence presented to magistrate to support a showing of PC: 1. Veracity (truthfulness) prong: Informant is reliable and credible 2. Basis of information: Underlying circumstances relied on by the person providing the information (access to information, not just repeating rumors)
[Concurring: White]
Agrees with upholding warrant, but uses Aguilar-Spinelli, not TOTC Warrant is invalid under new TOTC test Aguilar and Spinelli dealt w/ known informants. Anonymous informants are neither presumptively reliable nor is there any basis for assuming the info was obtained in a reliable way. o If we do not accept conclusory statements from police, how is there any rational basis to do so from anonymous informants? Conceivable that police corroboration might est. reliability for Aguilars veracity prong and self-verifying detail for Spinelli. o A-S provides structure and guards against attendant intrusions based on unreliable info. Fear that TOTC may eviscerate probable cause. Discrepancies btw informants predictions and the facts known to officer o Cast doubt on informants hypothesis o Made Gs conduct seem less unusual o Undermines the reasonableness of relying on an anonymous letter for making a forcible entry into a private home. Subsequent events may not be considered in evaluating the warrant No one knows who the informant in this case was, or what motivated him/her to write the note
[Dissent: Stevens]
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Chapter 5: Warrants
All warrants require probable cause Supported by oath or affirmation o In front of a neutral and detached magistrate Particularity describing: o Place to be searched Officer executing the warrant can identify it w/ reasonable effort. o Persons or things to be seized Primarily relates to arrest warrants (the seizure of a person) Assures that the magistrate approves the scope of the search and the person whose property is being searched can also ascertain the scope. o Required to avoid abuses exemplified by the general warrants and writs of assistance used in English and colonial common law. o Warrant w/out particularity permits police officers too much discretion in its execution and undercuts the probable cause requirement.
Facts: Concerned citizen told G, a special agent, that R had weapons. G applied for search warrant, describing weapons, and gave an affidavit. Magistrate signed warrant form, but warrant failed to identify the items G could seize. G searched house and gave Mrs. R a copy of warrant. G faxed Rs attorney a copy of the application that listed items to be seized. Holding: (1) A search conducted pursuant to a warrant that fails to conform to the particularity requirement of 4th is unconstitutional; (2) Officer not entitled to qualified immunity. Warrant was plainly invalid, did not meet requirement of particularly describing the persons or things to be seized. Fact that application adequately described the things to be seized does not save the warrant from its facial invalidity. o Functionality of 4th not necessarily met by other documents o Court may construe a warrant w/ reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation and if the supporting document accompanies the warrant. This case it did not happen Warrant did not describe the items to be seized at all, therefore, not reasonable under 4th Absent exigent circumstances, a warrantless entry to search for weapons or contraband is unconstitutional W/out items to be searched, no written assurance that the Magistrate actually found PC to search for and seize every item in the affidavit. A particular warrant assures the individual of the lawful authority of the officer, his need to search, and the limits of his power to search. It is up to the officers to make sure the warrant is okay
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Magistrate did not make any changes to the affidavit, so he presumably authorized the search for all items listed. G is entitled to qualified immunity o
Payton v. New York [1980] Warrantless arrest in the home [Opinion: Stevens]
Facts: After investigating for two days, officers had enough probable cause to believe P murdered a man. 6 officers went to Ps apartment w/out a warrant, knocked @ door, used crowbars to enter the apartment, and found and seized a casing in plain view. P later surrendered to police, was indicted for murder, and moved to suppress the evidence. Holding: Absent exigent circumstances, warrantless arrests in the home are unconstitutional. Absent exigent circumstances, a warrantless entry to search for weapons/contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found w/in. o Interest in preserving the privacy/sanctity of the home Watson Court: (1) Warrantless arrest in a public place is valid if the arresting officer had probable cause to believe the suspect is a felon, (2) Consensus among the States adhering to that well-settled common-law rule; and (c) expression of the judgment of Congress that such an arrest is reasonable. o No direct authority and tenet that a mans house is his castle strongly suggests that the prevailing practice was not to make such arrests o Decline during the last decade in # of states permitting warrantless entries for arrest, virtually all state courts have held warrantless entries into the home to arrest is invalid absent exigent circumstances.
Steagald v. United States [1981] Search of home w/ arrest warrant [Opinion: Marshall]
Facts: Confidential informant told DEA he might be able to find L, a fugitive wanted on drug charges, and gave number where L could be located. DEA contacted Telephone Co. to get the address and found two men standing outside the house (one was S). Agents searched house even though L was not home and saw what they believed to be coke. Officer obtained a search warrant and conducted a 2nd and 3rd search, uncovering coke. S was the owner of the home and was convicted on the basis of evidence uncovered during a search of his residence for L. Holding: An arrest warrant is inadequate to protect 4th interests of persons not named in the warrant when their homes are searched w/out their consent and in the absence of extigent circumstances.
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Arrest warrant: issued by a magistrate upon a showing that probable cause exists to believe the subject of the warrant has committed an offense; protects an individual from an unreasonable seizure. Search warrant: issued upon a showing of probable cause to believe that the legitimate object of a search is located in a particular place, and therefore safeguards an individuals interest in the privacy of his home/possessions against the unjustified intrusion of police. Case depends upon what the warrant authorized the agents to do. o Agents entered the home of a 3rd person, which was never subjected to the detached scrutiny of a judicial officer. o When search of the home is for a person, rather than an object there is the same standard Absent exigent circumstances, judicially untested determinations are not reliable enough to justify an entry into a persons home to arrest him w/o a warrant, or a search of a home for objects in the absence of a search warrant. Potential for abusepolice could search the homes of all the individuals friends Search warrant requirement will not significantly impede law enforcement efforts o Necessary situations are few bc arrest warrant will suffice to enter a suspects own residence to effect his arrest. o If probable cause no warrant required to apprehend a suspected felon in a public place Subject of arrest warrant can be seized before entering/leaving 3rd partys home o Exigent-circumstances doctrine: limits situations where a search warrant is needed o Inconvenience incurred by the police is not significant. Protects right of presumptively innocent people to be secure in their homes from unjustified, forcible intrusions by Gov. Problem of mobility of the fugitive Interference w/ 3rd partys privacy interests is not significant o Not a general search, but a specific one for the subject of the arrest warrant o Coke was in plain view during a sweep search Reasonableness standard does not require a separate search warrant. 3rd party dwelling can be considered a home after a few days of suspect living in it. Franks: arrest warrant for one person does not mean a search warrant for another.
we act we dont know if the suspect is guiltybefore searching or seizing we dont know the outcome
A search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success. Pg. 144. Draper- Dissent Terry- case of first impressions o Cops view suspicious activity and stop and frisk without knowing what the would find o Was the stop justified at its inception
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Default is supposed to be probable cause but reality is reasonableness o Degree of intrusion vs. gravity of investigated offense Exceptions to probable cause o Terry Stops o Special needs o Consent
Not a full stopjust a mere inconvenience (no seizure) Test is REASONABLENESS o Determined by a balancing of government and citizens interest Citizen interest- right of privacy, right to not be harassed/profiled Government interest- crime prevention and cop safety Significant diminution in the role of the Warrant Clause in 4th Move by SC away from the proposition that warrantless searches are per se unreasonable, to the view that the appropriate test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. Searches/seizures can vary in their intrusiveness o Police-citizen on-the-street encounters that do not involve arrests or full-blown searches come w/in 4th but are considered lawful despite the absence of a warrant or probable cause. Police may conduct searches on less than probable cause and instead on reasonable suspicion For the first time, Court stated that a person can be seized short of being arrested (4th is implicated) o Seizure occurs when a police officer accosts and individual and restrains his freedom to walk away. o Only when the officer by means of physical force or show of authority, has in some way restrained the liberty of a citizen has a seizure occurred. Warrant Clause not necessary to a stop-and-friskbased on the reasonableness in all the circumstances of the particular governmental invasion of a citizens personal security. o Whether the officers action was justified as its inception, and whether it was reasonably related in scope to the circumstances that justified the interference in the first place. Balancing the need to search or seize against the invasion which the search or seizure entails.
A. Terry Stops
When do Terry problems arise? When police dont want to make an arrest; just want to briefly detain When officers are out patrolling rather than investigating. Whats the general rule for Terry searches? When does the right arise? Right to stop arises (seizure): (1) when officer observes unusual activity making him think criminal activity is going on. He can briefly detain suspect to make inquiries. (2) Reasonable suspicion based on obj. facts that the indiv. is involved in criminal activity (PC not reqd) Protective Frisk (search): Once officer conducts a stop, may conduct a carefully limited search of outer clothing of suspect to discover weapons. o Limited frisk or pat down is a reasonable search. o Any weapons seized may be admitted as evidence. Vehicle stop: also may apply to allow officers to stop a car. Suspect & passengers reqd to leave car. Once officer conducts justified stop of car, may also req. passengers/drivers to leave car if its a legitimate safety measure. Three types of encounters: Conversation: (no stop) no justification reqd Stop (but not arrest) reasonable suspicion necessary Arrest PC necessary
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What constitutes a stop? Unclear from Terry and other cases what interference constitutes a stop under the 4th But for an investigative stop, must have reasonable suspicion (lower standard than PC) Terry v. Ohio Stop: Brief stop & frisk of a person whose behavior an officer reasonably considers suspicious & dangerous. Test: Whether a reasonably prudent man in circumstances would be warranted in the belief that his safety or that of others is in danger. Reasonable Suspicion: Police routinely engage in activity that does not reach the level of full-scale intrusion reqing PC; lesser intrusions range from conversations with people, routine citizen stops & brief traffic stops in order to question. Officers observation of suspicious activity + reason to believe suspect is armed and dangerous= Constitutional search and seizure What is the crux of this issue? Officer safety Crime prevention important too. How is reasonable suspicion evaluated? Totality of the Circumstances Test: to evaluate basis of reasonable suspicion, consider cops experience in light of all other factors that formed the suspicion Reasonable suspicion for stop: Where cop observes conduct that, in light of the TOTC, would lead to formation of an objectively reasonable suspicion that the subject is planning or carrying out illegal activity, cop may briefly detain individual for questioning Reasonable suspicion for frisk: If the officer observes conduct that leads him to form an objectively reasonable suspicion (reasonably prudent person) based on the TOC, that the suspect is armed and dangerous, the officer may conduct a frisk limited in scope to searching for weapons. o Government vs. Individuals interest o Terry search is limited to scope & duration: must look in areas where a weapon may be found. The search has to be brief, of limited scope
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Right of a police officer to make an on-the-street stop, interrogate, and pat down for weapons, stop and frisk o Constitutes a seizure whenever a police officer accosts an individual and restrains his freedom to walk away. o Does not need warrant bc it is a swift action based upon on-the-spot observations of the officer on the beat. Reasonableness of Search/Seizure: (1) Was the officers action justified at its inception? (2) Was it reasonably related in scope to the circumstances which justified the interference in the first place? Balancing test to assess reasonableness of officers conduct: o Balancing the need to search (or seize) against the invasion which the search (or seizure) entails. o Governmental interest versus private interest Gov.: effective crime prevention and detection; police officer taking steps to assure the person he is dealing w/ is not armed w/ a weapon that could unexpectedly/fatally be used against him. Need for law enforcement officers to protect themselves and other prospective victims of violence where they lack PC for an arrest. When officer is justified in believing individual is armed/dangerous, it is unreasonable to deny officer the power to take measures to determine whether the person is carrying a weapon. Reasonableness of the particular intrusion: o Objective standard: o 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? Scope of the search: o Limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby o Less than a full search, even though it is a serious intrusion Exclusionary Rule: o Mainly about deterring bad police behavior Also preserves judicial integrity Blacks fear every stop will be pretextual
[Concurring: Harlan]
Officer must have constitutional grounds to make a forcible stop. That cops can frisk a hostile person for protection is correct but: o Frisk depends on the reasonableness of a forcible stop to investigate a suspected crime. o If reasonable frisk must be immediate and automatic
[Concurring: White]
Person approached may refuse to cooperate and go on his way Temporary detention, warranted by the circumstances, justifies the protective frisk Search and Seizure is not constitutional unless there was probable cause to believe that: (1) A crime had been committed (2) A crime was in the process of being committed or (3) A crime was about to be committed No probable cause for carrying a weapon, maybe for loitering Holding gives greater authority to the police than to a judge o Totalitarian path o Step should be taken by choice of the people through an amendment
[Dissent: Douglas]
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Adams v. Williams [1972Habeas Case] Stop-and-frisk based on informant tip (reliable) [Opinion: Rehnquist]
Facts: Known informant told off. patrolling high-crime area at 2 a.m. that a nearby driver was carrying narcotics and had a gun. Off. called for assistance, tapped the car window, and asked driver to open the door. W rolled down the window instead, so off. reached in and removed loaded gun from Ws waistband. Gun was not visible, but was in the place indicated by informant. Search incident to arrest found heroin on Ws person and a machete and revolver in car. W claims initial seizure was not justified by informants tip bc it lacked reliability or corroboration. Holding: Off. justifiably responded to informants tip and search was reasonable to insure his safety, therefore, reasonable cause for a stop-and-frisk. Terry recognizes that a brief stop of a suspicious individual may be reasonable in light of the facts known to the officer @ the time. o So long as the officer is entitled to make a forcible stop and has reason to believe the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose Off. acted justifiably in response to informants tipinformant provided info in past, came forward personally and was immediately verifiable @ the scene (CT law for immediate arrest upon false complaint). Stop-and-frisk not limited to officers personal observation Circumstances of investigation justifysitting alone in car parked in high crime area @ 2, W did not comply w/ off.s request to step out. o Under these circumstances, the off.s action was a limited intrusion designed to insure his safety, and therefore, reasonable. Arrest supported by probable cause, search of person and car incident to arrest was lawful. [Dissent: Douglas, joined by Marshall] CT allows its citizens to carry weapons Terry should be limited to observations by the officer himself [Dissent: Brennan] If Terry is not read as officer observations, it will open the channel for the erosion of the protection of the 4th Amend. [Dissent: Marshall, joined by Douglas] Warrantless searches are the narrowly drawn exception, not the rule Terry did not involve an informant o Did not hold that whenever a policeman has a hunch he may engage in a stop and frisk. It held that there must be specific facts to conclude that an individual is involved in criminal activity and is armed and dangerous. Officer did not know about the scene: how long D was in car, who the car belonged to, whether the gun was carried legally, what kind of narcotics, or the basis of the informants knowledge. Conclusory hearsay not ok Terry requires reliable information that the suspect is armed and dangerous o Guns are legal in CT no reason to think D was dangerous Arrest and subsequent search did not have probable cause o Did not ask if D was carrying the gun legally Franks: hangs on the fact that informant was reliable.
Facts: Anonymous caller reported to police a young black male @ bus stop in plaid shirt carrying a gun. Off. arrived and saw 3 black males, 1 w/ plaid shirt, but had no other indication of illegal conduct. Off. approached JL and told him to put his hands up, frisked him, and seized gun. Holding: Anonymous tip that a person is carrying a gun w/out more is insufficient to justify a police officers stopand-frisk of that person. Anonymous tips are generally less reliable and can form the basis for reasonable suspicion only if accompanied by specific indicia of reliability. o When anon. tip is corroboratedsufficient indicia or reliability to make investigatory stop. o Tip had no predictive information o The reasonableness of suspicion must be measured by what the officers knew before they conducted the search. o Accurate description of subjects observable location does not show knowledge of criminal activity Open to abuse by anonymous harassers Decision limited to cases in which the officers authority to make the initial stop is at issue, not when off. accords w/ Terry to conduct a protective search of a person who has been legitimately stopped. [Concurrence: Kennedy, Joined by the Chief Justice] Anonymous tips w/ similar voices can gain credibility
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If police officer lawfully pats down suspects outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there is no invasion of suspects privacy beyond that already authorized by officers search for weapons. o If object is contraband warrantless seizure is justified by plain-view considerations. Continued exploration of Ds pocket after determining there was no weapon amounted to an evidentiary search. Officer was lawfully in the position to feel the lump in Ds pocket (under Terry), but not to determine the incriminating character of the object. o Off. conducted a further unauthorized search. Plain touch v. manipulation
[Concurring: Scalia] Disagrees w/ mode of analysis in Terry, but thinks it got the right result. Frisk only if reasonably believe armed and dangerous No probable to search here Assuming the search was lawful, agrees w/ the opinion of the Court that any evidence incidentally discovered in the course of a lawful search is permissible.
B. Consent Searches
Validly obtained consent allows for a warrantless search (w or w/out PC) Opens doors to a vast number of searches Waives- by consenting person waives righto be free from unreasonable searches and seizures Non-search- consent turns search to non-search Reasonableness Rule: validly obtained consent allows for warrantless search with or without probable cause of potentially unlimited scope Must be: o Voluntary (Bustamonte) test: totality of the circumstances o Real (Matlock) or Apparent authority (Rodriguez) o Scope cannot exceed consent granted
sacrifice of neither security nor liberty. The Due Process Clause does not mandate that the
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police forgo all questioning, or that they be given carte blanche to extract what they can from a suspect. Pg. 301.
Court looks at overborne will
[Dissenting: Marshall] Court misstates the true issuewhether a statement of assent to search is sufficient to permit the police to search and relinquish Acalas constitutional right to exclude police. No sane person would knowingly relinquish a right to be free of coercion Knowing choicecannot make a decision w/out knowing the available alternatives Majoritys practicality is capitalizing on the ignorance of citizens by getting them to relinquish rights o More criminals would be apprehended, but police would be disregarding the Constitution Franks: Majority is saying we would rather people be ignorant bc it helps law enforcement
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Facts: Rs gf let cops into Rs apartment, where they found drugs in plain view and arrested R. GF did not actually live there, had actually moved out weeks earlier but had called the apartment ours and said she had clothes/furniture there. Holding: A warrantless entry is valid when based upon the consent of a 3rd party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not. Burden on State to show common authority o Here GF moved out a month before, never invited friends there, and never was there w/out R. o Name was not on lease, did not pay rent, and had stolen the key. o Therefore, no joint access or control 4th protects whether searches are unreasonable. Actual authority analysis: o Key o How long ago did she move out o Could she have visitors? Reasonableness: does not demand government is factually correct in its assessment of what a search will produce. o Does not preclude error o Does not require factual accuracy o Good faith belief Consent must be judged against 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 premises? Reasonable belief of apparent authorityok Franks: Apparent Authority Doctrine: it is sufficient if consent is given by someone w/ merely apparent but not actual authority (rejected in Stoner). [Dissenting: Marshall, joined by Brennan and Stevens] Person may limit his expectation of privacy by allowing others to exercise authority over his possessions R did not do so here Must have a warrantexceptions serve compelling law enforcement goals (exigency), departure not justified by off.s misguided belief in 3rd party. Probable cause only subject to narrow exceptions Apparent authorityerodes 4thonly the petition can waive by word or deed Majority ignores expectation to privacy, which individuals are entitled to rely.
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Administrative statutes and penal laws may have the same ultimate pupose of remedying the social problem, but they have different subsidiary purposes and prescribe different methods of addressing the problem o Distinguish: penal = punishment of individuals for specific acts of behavior; administrative = rules to guide operators conduct of business Court declines to make states carry out statutes w/ special agents instead of police
[Dissenting: Brennan, joined by Marshall and OConnor] Agrees w/ majority: warrantless inspections of CRBs are valid if necessary to further an urgent state interest and if authorized by statute that limits time, place, and scope. However, vehicle-dismantling business is not CRBadministrative warrant was req. for search o Search was only for evidence of criminal wrongdoing o Vehicle dismantling easy business to join (register and pay fee) If its a CRB most NY businesses are Even if CRB, search violated 4th o Statute does not provide certainty and regularity of a warrant substitute State is using administrative scheme as pretext for search w/out PC for evidence of criminal violations o Police recorded wheel chair #--not relevant to States administrative scheme of vehicles/parts A legislature cannot abrogate constitutional protections simply by saying that the purpose of an administrative search scheme is to prevent a certain type of crime.
2. Students, Probationers, and Public Employees National Treasury Employees Union v. Von Rabb [1989] Suspicionless Searches [Opinion: Kennedy]
Facts: Commissioner implemented drug tests for certain positions w/in Customs, which were a condition of placement/employment for jobs in three criteria: (1) direct involvement w/ drug interdiction; (2) incumbents carrying firearms; (3) handling classified material. Holding: Gov.s need to conduct suspicionless searches required by the Customs program outweighs the privacy interests of employees engaged directly in drug interdiction, and of those who otherwise are req. to carry firearms. Program does not serve ordinary needs of law enforcement test results cannot be used in a crim pro w/out employees consent. Not intrusive test Purpose of program: to deter drug use among those eligible for promotion o Substantial interestpresents a special needdeparture from warrant/probable-cause reqs. In certain circumstances, Gov.s need to discover/prevent conditions justify intrusion of privacy by searches w/out individualized suspicion. o Public interest demands effective measures to bar drug users from positions directly involving the interdiction of illegal drugs o Policy is reasonable: drug users would create safety/national security hazards o Relation to airline searches: in 15 years of program, over 10 billion people/bags searched, only 42,000 firearms found. Low incidence of conduct does not impugn the validity of the scheme, but indicates a hallmark of success. Court rejects contention that most employees tested are innocent Reasonableness: Gov.s interests in preventing the promotion of druggies > privacy interests of individuals [Dissent: Scalia, Joined by Stevens] Issue is about the steps taken to detect drug use o Execratory function traditionally shielded by privacy, monitor listening, handing over pee for analysissearch destroys privacy and offends personal dignity. Citizens interest is far more imporrtant Opinion does not connect frequency of drug use or likelihood of harm o Implausible speculation
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o Not clear the urine tests will prevent impaired perception and judgment Majority quotes Brandeis: For good or for ill, [our Government] teaches the whole people by its exampleactually mocking Gov. action when the ends justifies the means Franks: Cannot take the gov.s word for the implications of the search. All the horrible things the gov. is worried about never happened. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but w/out understanding
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Distinguish btw law enforcement and teacher/student: law enforcement are adversaries of criminal suspects; commonality of interests btw teachers and pupils.
[Concurring: Blackmun] Court omits crucial step in analysis: only exceptional circumstances, in which special needs beyond law enforcement make the warrant/probable-cause req. impracticable, can the court use balancing of interests over Const. right. Elementary/Secondary school setting = special needs [Concurring in part, dissenting in part: Brennan, joined by Marshall] Agree: schoolteachers/principals may conduct a search w/out warrant The Warrant Clause is something more than an exhortation to this Court to maximize social welfare as we see fit. It requires that the authorities must obtain a warrant before conducting a full-scale search. Gov. must have special interest to justify exception to warrant req.exigency o Exists in this case: teacher/principal could not protect students safety if req. to wait for warrant. Disagree: disregard to probable-cause standard (textually supported! Unlike balancing) o Balancing test is flawed in its inception and execution o 2nd search was invalidbased solely on presence of cig papers, therefore, fruits of illegal search should be excluded. Franks: this was a full-scale search, not a protective search, so how can you use reasonableness? [Concurring in part, dissenting in part: Stevens, joined by Marshall and Brennan in I] Court inappropriately reached out to decide a constitutional questionholding will permit school admins to search students suspected of violating the most trivial school regs. Pet. for cert. did not raise Q of whether the purse search violated 4th, only whether exclusionary rule applies to schools. o Application of exclusionary rule in crim pro arising from illegal school searches makes an important statement to young people that theres consequences for violation of constitutional rights. o Schoolroom is the first opportunity to experience the power of government
Board of Educ. v. Earls [2002] Suspicionless testing for drugs [Opinion: Thomas]
Facts: Student Activities Drug Testing Policy req. all students who participate in competitive afterschool activities to submit to drug testing. Testing is random and students must agree to be tested @ any time upon reasonable suspicion. Test does not detect medical conditions/authorized prescription meds. Holding: The policy reasonably serves the School Districts important interest in detecting and preventing drug use among its students, therefore, it is constitutional. Veronia v. Acton: Court held suspicionless drug testing of athletes was constitutional. History of drug use a school Nature of the privacy interest: o Limited in a public school environment o Students are subjected to greater control than appropriate for adults. o Students who participate in competitive extracurricular activities voluntarily subject themselves to same intrusions of privacy as athletes. (communal undress) Character of the intrusion: o Manner of production: faculty monitor listens to pee sounds, pours into bottles, and is done behind a closed stallnegligible intrusion o Tests are kept confidentialneed to know basis o Tests not turned over to law enforcement o Failed drug test limited privilege of participation; 3rd failure suspended from participation Nature and immediacy of the Gov.s concern and the efficacy of the Policy in meeting them o Nationwide drug epidemic
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o Specific drug use @ Tecumseh schools o Von Raab: can be done on a purely preventative basis, does not need real and immediate interest Policy is a reasonable means in preventing and deterring drug use.
[Concurring: Breyer] Program counteracts peer pressure: gives students a reason to turn down drugs Important that urinalysis was discussed @ public meetings Objectors can refuse participation and not participate [Dissenting: Ginsburg, Joined by OConnor, Stevens, and Souter] Veronia emphasized inc. risk of sports related injury w/ athletes and athletes were leaders of drug culture. Here: non athletes drug use is not major Rejects idea that student voluntarily subject themselves to testingextracurrics are part of educational program; key component in school life/applying for college. Schools educate the young about Constitutional freedoms
enforcement purposes is not allowed. These tests were administered for police purposes to lock up these women. Nurse was racist.
Immediate objective of the searches: to generate evidence for law enforcement purposesto reach goal of substance abuse treatment/getting preggers off drugs. o Cannot justify ultimate purpose w/ immediate purpose o Evidence was taken for the specific purpose of incriminating patientspatients must be fully informed of constitutional rights to constitute waiver. Gravity of threat cannot evade 4th prohibition against nonconsensual, warrantless, and suspicionless searches. Franks: big deal in this case is lack of consent o Distinction btw a dr.s test and the only reason to conduct the test is for law enforcement.
[Concurring: Kennedy] Majority lacks foundation in special needs cases: o Usually turn on policys ultimate goal, rather than proximate purpose Sanctions use of law enforcement in the policy since the inception o Penal character [Dissenting: Scalia, Joined by Chief and Tomas in part II] Majority objects to reporting drug-test results to policenot a search Taking of the urine sample could be regarded as a search (testing?) o 4th protects only persons, houses, papers, and effectsurine isnt effect, but abandoned Court has never protected material that a person hands over to 3rd party Special-needs doc could validate what was done here
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o o o
Tests immediately have purpose of improving maternal/infant health Applies to enable searches by law enforcement officials who ordinarily have a law enforcement objective. Police involvement takes place after testing was conducted for independent reasons
Facts: Principal received report R (13 y-o) was giving prescription-strength pills to other students and pulled R into his office. R denied everything, consented to search of her belongings. Female Admin. Assist. came into office, searched backpack w/ male principal, found nothing. P sent R to nurses office, where she had to strip, pull her undies out, and shake. Search produced no pills. Holding: (1) Search of students bra/undies violates 4th bc there was no reason to suspect the drugs presented a danger or were concealed in her undies; (2) Right was not clearly established, so the official who ordered the unconstitutional search is entitled to qualified immunity from liability. School policy prohibits use, possession, or sale on school grounds of any prescript/over-the-counter drug Week before R was searched, another student told Principal about students bringing drugs/weapons on campusstudents planned to take pills @ lunch that day Principals suspicion justified search of Rs backpack and outer clothing o Search was not intrusiveprivate office Strip searchnot about who was looking and what was seen o Fact of pulling underwear w/ officials there violated subjective and reasonable societal expectations of personal privacyneeds further justification o Indignity of the search does not outlaw itreasonableness depends on if the search is reasonably related in scope to the circumstances which justified the interference in the first place. Scope is permissible when not excessively intrusive in light of age/sex of the student and the nature of the infraction Search is unreasonable o No indication of danger to students from the power of the drugs or their quantity! o No suspicion that R was carrying pills in undies Franks: Nature of the Infraction no emergency! [Concurring in part/Dissenting in part: Stevens, joined by Ginsburg] Disagrees w/ grant of qualified immunity to school official, thinks T.L.O. shows it is unconstitutional to strip search a 13 y-o. [Concurring in the Judgment in part and dissenting in part: Thomas] Search did not violate 4th o Court grants judges sweeping authority to second-guess school officials o Vague and amorphous standard School had reasonable grounds to suspect R had drugsJustified @ inception o Lunchtime deadline quickly approaching o Totality-of-circumstances justified search of R for pills Reasonable in scope4th grants leeway to school officials o Pills could have been hidden in undiesreasonable o Area is capable of concealing the object of the search o Reasonable to think Backpack was empty bc R was hiding pills in a place she thought no one would look Nature of the infractiontest is unworkable bc school officials shouldnt have to hault searches bc of possibility a court will later find the infraction was not severe enough to warrant an intrusive investigation
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3. Checkpoints Michigan Dept of State Police v. Sitz [1990]**Only addresses initial stop [Opinion: Rehnquist]
Facts: Advisory Committee established checkpoints @ selected sites along state roads. All vehicles would be stopped, drivers examined for signs of intox., when intox. police check license/registration and conduct sobriety tests. If driver failed, arrest was made. Other drivers could resume. Holding: States use of highway sobriety checkpoints does not violate 4th and 14th. 4th seizure occurs when vehicle is stopped at checkpointquestion of reasonableness o Magnitude of drunk driving problemstate interest in eradicating it o Balanced w slight intrusion in motorist stop (objective) Subjective: fear and surprise, but checkpoints follow guidelines fixed systematic DUI stop and was random. No individualized stops. Drunk driving is more of a
[Dissenting: Brennan, Joined by Marshall] Court undervalues the nature of the intrusion and exaggerates the law enforcement need to use the roadblocks to prevent drunk driving. Police need probable cause for a seizure to be reasonable o Balancing test only when a seizure is substantially less intrusive than a typical arrest o Agrees w/ majoritys use of balancing testbut opinion does not have the reason that the BT is used, bc seizure is minimally intrusive. [Dissenting: Stevens, joined by Brennan and Marshall in Parts I & II] No relation btw sobriety checkpoints and a reduction in highway fatalities Diff. btw seizure w/ fair notice and seizure effected by surprise o Border search less intrusive than random stop (depends on element of surprise) o Tests done @ night Diff. btw discretion of officer after stop o Border searchcheck for IDyou have it or you dont o Search for evidence of intox. is more subjective Arrests could be made if law enforcement resources were put to conventional patrols Drunk driving can be detected w/out checkpoints, unlike aliens riding in cars III. Opinion gives no wait to citizens interest in freedom from suspicionless investigatory seizures o Permanent checkpoints are justified, not suspicionless seizures o Sobriety checkpoints are elaborate publicity stunts to show law enforcement is taking law seriously.
[T]he gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose. Pg. 432.
Distinguish Sitz: no vehicle-bound threat to life/limb like a sobriety checkpoint. Immediate
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Primary purpose of program is indistinguishable from the general interest in crime control
pretext to stop who ever they want. Wasnt random like Sitz. They were looking for drugs in this case and purpose was to jail people *** would police have stop if they couldnt arrest people? No, no immediate harm
Franks: need individualized suspicion.
[Dissenting: Rehnquist, Joined by Thomas and Scalia in Pt. I] While stops primary purpose is to interdict illegal drugs, it also checks licenses/registrations and looks for signs of impairment2 important State interests Subjective intrusion: short, signs, high success rate o Only diff. from Sitz: dogs, which is not part of a search Automobile has a lower expectation of privacycoupled w/ limited intrusion intrusiveness of body/home [Dissenting: Thomas] Precedent shows roadblock seizures are permissible if conducted according to a plan that limits the discretion of the officers conducting the stops.
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A. Persons
Searches of homes are different than searches of businesses Searches of individuals are different than searches of homes Searches of cars are different from searches of other effects
United States v. Robinson [1973]***Concern of the Court: CRIME AND PUNISHMENT [Opinion: Rehnquist] SILAregardless of offense
Facts: Off. observed R driving car, based on previous investigation determined there was reason to believe R was operating car w/ revocation of operators permit, an offence defined by statute in DC (jail, fine, or both to punish). Off. pulled car over and searched J w/ a patdown, finding something in jacket pocket. Off. pulled it would to identify it: crumpled up cigarette package, opened it, found heroin. Holding: In the case of a lawful custodial arrest, a full search of the person is an exception to the warrant req. of 4th and is reasonable. SILA not held to stricter Terry standards Justification for SILA: (1) Disarm before custody; (2) Preserve evidence (extigent circumstance) Degree of SILA does not depend on the nature of the offense Lawful arrest authority to search full search is reasonable o Does not req. case-by-case adjudication of probability of suspect having weapons/evidence Did not feel like weapon Pulled over for suspended license and searches and finds drugs in crumbled cig case. The only
evidence in this case would be a valid license. Rule- lawful arrest allows you to search the fullbody of the a person being arrested (bright-line rule)
[Dissenting: Marshall, Joined by Douglas and Brennan] Opinion allows police off. lacking PC to obtain a warrant to use a traffic arrest as pretext to conduct a search.
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o Need case-by-case adjudication to determine whether search was conducted for legitimate reasons Rule is too rigid under 4th Must be a reasonable relation btw the arrest and searchno reason to think a traffic violated is armed o Terry did not allow off. to stop-and-frisk anyone on the street, only when he believes it is an armed and dangerous individual.
Facts: L arrested for disturbing the peace. Later @ police station, L had to empty pocketscigarette package had amphetamine pills. Holding: It is not unreasonable for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance w/ est. inventory procedures. Must be routine/standardized procedure at police station This case does rest on PCabsence of warrant is immaterial to reasonableness o Inventory search is an exception to the warrant requirement Search of the person of an arrestee @ police station has diff. justification factors: o Gov. interest in stationhouse search is highermore leniency for officers @ station o May disrobe before confining o Inventory processdeters false claims of theft o Risk of injury to arrested personsconfiscate dangerous instrumentalities o Police fear is irrelevant o Way of verifying identity. Court is not in the position to second-guess police department o less intrusive means not relevant to reasonableness
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B. Houses
to stay they get the same protection. Doesnt have a key, not left alone, no rights of exclusion Assumption of risk cases
Minnesota v. Carter [1998] Temporary guests for commercial transactions [Opinion: Rehnquist]
Facts: Confidential informant directed Off. to ground level apartment where drug bagging operation was visible behind gap in the blinds. When men left, Off. pulled over car, observed gun, and arrested 2 men. Search of apartment revealed residue and baggies. Men had never been to the apt. before and were there for 2 hours. Holding: There is no legitimate expectation of privacy for defendants simply permitted on the premises for a purely commercial transaction for a short period of time w/out a personal relationship to the homeowner. Business < home Permission to stay v. permission to do business 4th: protection to people in their housesone who is merely present w/ consent of householder may not claim protection of 4th. o Rs have standing Respondents were there for a business transaction o No previous relationship w/ owner o Not overnight guests o Cannot claim protection as workplace (no significant connection) o Purely commercial
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Did not decide if it was a search bc there was no expectation to privacy o B thinks there was a search, issue was to whom
[Concurring: Scalia, Joined by Thomas] Threshold question: whether a search/seizure covered by 4th has occurred o Does not require legitimate expectation of privacy to be applied first o theirhouseseach person has right to be secure against unreasonable searches/seizures in his own person, house, papers, and effects. Must actually live therenot an apartment used to package cocaine Katz test (subjective expectations of privacy that society is prepared to recognize as reasonable) turned into what Court considers reasonable o Self-indulgent test cannot be used to determine whether a search/seizure has occurred bc IT IS NOT IN TEXT OF 4TH. [Concurring: Kennedy] Respondents had no connection w/ home [Concurring in the judgment: Breyer] Respondents can claim 4th protection in home, however, officers observation from outside home did not violate 4th rights. o Off. was standing in a public place where may people passed bynot an unreasonable search o If you live in a basement apt., you should understand the need for care to keep out unwanted eyes. [Dissenting: Ginsburg, Joined by Stevens and Souter] Courts decision undermines the security of short-term guests, and the residents security of the home o When a homeowner invites a guest, guest should share hosts shelter against unreasonable searches/seizures. Limited to those chosen to share privacy of home/company w/ guestnot milkman/delivery boy o There is a subjective expectation to privacy that society is prepared to recognize as reasonable
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3. Technology and the Home United States v. Knotts [1983] Tracking device on car [Opinion: Rehnquist]
Facts: Off. suspected K of manufacturing illicit drugs and installed a beeper on a container. Off. followed car and found location. Off. secured a search warrant and found a meth lab. Holding: Beeper tracking device attached to a car to follow movement does not invade any legitimate expectation to privacy. Person traveling in car on public roads has no reasonable expectation to privacy. Visual surveillance from public places would have revealed the route/Ks premises o 4th does not prohibit augmenting the sensory faculties as science/tech. permits. o Beeper has limited useascertaining the ultimate resting place of chloroform (did not track inside home) Katz: beeper did not invade any legitimate expectation of privacy bc it was a car on a public road. o Not a 4th search/seizure [Concurring in the Judgment: Brennan, Joined by Marshall] Confusion of 4th standingcontainer sold to compatriot, not K [Concurring in the Judgment: Stevens, Joined by Brennan and Marshall] Reasonable for police to use information received over the airwaves Does not join court bc opinion contains 2 unnecessary dicta: o Open fileds doctrinedrum was outside the cabin in public display. Not a valid statement. o 4th does not prohibit augmenting the senses w/ technologywhat about Katz??
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o Public could observe from melting snow or rain evaporation. o Equipment did not penetrate walls or obtain info regarding the interior of the home o Officer conduct did not amount to a search and was perfectly reasonable. Police should not have to avert their senses o Party interest is minimalpeople should insulated homes to keep heat in Distinguish from Katz: device in Katz allowed officers to intrude bc device gave access to info inside the private area. Here, only disclosed heat radiating from the house. o If Katz device only disclosed the volume of the sound leaving the booth, which is discernable in the public domain. Franks: it is an inference, so it is not a search
United States v. Pineda-Moreno [9th Cir. 2010] Dissenting from the denial of rehearing in banc
Facts: Police went onto Ps property during the night and put a GPS on his car. Curtilage has the same protection as the home itself Just bc people can enter property does not mean we openly invite police to snoop
To say that the police may do on your property what urchins might do spells the end of 4th protections for most peoples curtilage. Pg. 531
Constitutional protection should be provided to rich/poorcannot penalize those w/out $ for gate 24-hour surveillance
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C. Automobiles
Carroll: est. the automobile exception to Warrant Clause. Goods concealed and illegally transported in a vehicle may be searched for w/out a warrant. Less private/protected than homes o Mobility (Exigency) o Regulated (Reduced expectation of Privacy) Chadwick: person has a higher expectation of privacy w/ luggage and personal effects than he does w/ an automobile.
Facts: Off. stopped car w/ 3 people inside and found pouch/wallet-type container inside passengers purse. Off. found drug paraphernalia, syringe, and drugs inside. Holding: Police officers w/ PC to search a car may inspect a passengers belongings found in the car that are capable of concealing the object of the search. Officers had PC to believe there were illegal drugs in the car No distinction among packages or containers based on ownership (Ross) o PC to search for contra in car no need for individualized PC for each package Balancing of interests allows Off. to search passengers belongings o Reduced expectation of privacy for both passenger and drivers for property transported in cars o Governmental interests are substantial: effective law enforcement would be impaired w/out ability to search a passengers belonging. Common enterprise w/ driver (Pringle), same interest in concealing fruits or evidence of wrongdoing Criminal could hide contraband in passengers belongings. [Concurring: Breyer] Limitations of the rule: only automobiles, only containers w/in automobiles, not persons found w/in automobile. Purse was separate from person, so it does not have protection. [Dissenting: Stevens, Joined by Souter and Ginsburg] In all prior automobile exception cases, D was operator of the vehicle and in custody of the object of the search. o Di Re: passenger Dheld the exception to the warrant req. didnt apply. Courts rule makes distinction btw property in clothing worn by passenger and property contained in passengers briefcase or purse. o Intrusion in these items just as serious as Di Re. State interest in effective law enforcement does not outweigh privacy concerns
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Facts: G was arrested for driving w/ a suspended license and locked into back of a police car. Police searched car/pocket of a jacket in the backseat and found coke. Holding: Police may search a vehicle incident to a recent occupants arrest only if the arrestee is w/in reaching distance of the passenger compartment @ the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Every 4th case begins w/ the reasonableness of a warrantless search: o Rejects Belton and applies Chimelpolice may search a vehicle incident to a recent occupants arrest only when the arrestee is unsecured and w/in reaching distance of the passenger compartment @ time of the search.
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Apply Thornton: in vehicle context, officer may justify SILA when it is reasonable to believe evidence relevant to the crime of the arrest might be found in the vehicle. Here: traffic violation, nothing in car would have been relevant evidence. o Search was unreasonable: police could not expect to find evidence of crime in car, G could not have accessed his car @ time of search. Possibly overruling Belton (applied Chimel to a car) Attempt to pull back a bit. You are not able to just search the car, it has to fit w/in these criteria. o
[Concurring: Scalia] During a roadside stop, police have less intrusive/more effective ways to enforce safety. Risk of pulling a car over is @ the high at the initial confrontation, not when the person is arrested and in the back of a squad care. Applying the Chimel standard fails to provide officers w/ guidance and leaves room for manipulation. Court should adopt a rule 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 the officer has PC to believe occurred. [Dissenting: Breyer] Would like a better rule, but agrees w/ dissent [Dissenting; Alito, Joined by Chief, Kennedy, and Breyer except II-E] Rule will endanger arresting officers, confuse officers and judges, cause the suppression of evidence gathered in cases carried out in good-faith reliance on well-settled case law, and undermines Chimel. Would follow Belton Franks: This case is a limitation on the automobile exception bc things have gotten out of hand; Does not make sense under Robinson (justifies SILA exception to 4th)
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[Concurring: Ginsburg] Common for OH cops to use a traffic stop as a prelude to an automobile search for drugs. State is free to impose greater restrictions on police activity than the Court holds necessary under Const., but the OH Sup. Ct. relied on the federal constitution, which does not require first-tell-ten-ask. [Dissenting: Stevens] Would uphold OH judgment bc @ the time consent was given, it was the product of an unlawful detention. o However, Const. does NOT req. officers to tell detained motorists theyre free to go Seizure of a person: reasonable person would have believed that he was not free to leave: o Reasonable motorist in Rs shoes would have believed he had obligation to answer the one question/before you get gone Reasonable person: would think investigative stop had not concluded bc cop continued to ask questions.
Illinois v. Caballes [2005]**Only drug sniffing dog, not bomb sniffing [Opinion: Stevens]
Facts: C stopped for speeding, narcotics officer came and walked dog around car. Dog alerted @ the trunk, officers searched the trunk, found pot, and arrested C. Entire stop lasted 10 mins. Holding: A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate 4th. Lawfuls seizure @ inception can violate 4th if its manner of execution unreasonable infringes interests protected by Const. o Ticket issuing can become unlawful if prolonged beyond the reasonable time req. to complete that mission. Off. conduct that does not compromise any legitimate interest in privacy is not a search subject to 4th. o Possessing contraband is not legitimate Gov. conduct that only reveals possession of contraband does not compromise a legitimate privacy interest not a search o Dog sniff was sufficiently reliable to est. PC to conduct full-blown trunk search Distinguish Kyllo: thermal imager could detect lawful activity, dog sniff does not Franks: Checkpoint + Dog = not okay (Edmond); Traffic point + Dog = Okay; o LIMITING PRINCIPLE: Individualized suspicion [Dissenting: Souter] Would hold that using the dog to determine the presence of pot in trunk was a search unauthorized as an incident of the speeding stop and unjustified on any other ground. Dogs are not infalliblePlace (held sniff test was not a search) should be reexamined o Dogs can be used to justify a further/complete search of an enclosed area1st step in a process that may disclose intimate details Enforcing criminal laws does not, w/out more, justify suspicionless 4th intrusions (Edmond) Franks: Problemcourt says it was not a search. It cannot be a per se rule. [Dissenting: Ginsburg, Joined by Souter] Scope: seizure was unwarranted/nonconsensual expansion of the seizure for a routine traffic stop to a drug investigation. o Cites Terry: investigation must be reasonably related in scope to the circumstances which justified the inference in the first place. o By using dog, encounter becomes more adversarial and longer Even if drug sniff is not a 4th search, it broadens the scope fo the traffic-violation-related seizure.
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Spano v. New York [1959]**Indicted for murder when S confessed [Opinion: Warren]
Facts: Warrant issued for Ss arrest in relation to a murder. S called close friend to tell about incident and confessed. S surrendered to authorities, attorney cautioned S not to answer questions, and S refused to answer. S asked for attorney, but officers did not allow. Friend came into question S and said he was in trouble bc S lied, S gave statement and took S to bridge where he ditched murder weapon. 5th and 14th Amend. claims. Holding: Under 14th, confession may not be upheld when suspects will was overborne by official pressure, fatigue and sympathy falsely aroused in a post-indictment setting. Police were concerned w securing a statement, not solving a crime. Confessions must be examined w careful scrutiny Court uses totality-of-the-circumstances test to see if his will was overborne: foreign, no history, emotionally instable, short education, nonbusiness hours, 8 hours long, and use of friend to solicit answers. Franks: police were adjudicating, not investigating. [Concurring: Douglas, Joined by Black and Brennan] Important: accused was scheduled to be tried by judge/jury was instead tried in a preliminary way by the police. Police made their own kangaroo court and denied S counsel before trial. [Concurring: Stewart] Absence of counsel alone is enough to render it inadmissible under 14th. Emphasis: police were not questioning in relation to an unsolved crime, S was under indictment for first degree murder. o Our system: indictment arraignment trial Accused has a right to lawyers held @ every stage
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[Dissenting: White, Joined by Clark and Harlan] M was not prevented from consulting w/ counsel as often as he wished. Just bc M had right to counsels aid does not mean out-of-court convos must be excluded. M was not in custody, there was no coercion, M assumed the risk Old rule gives ample protection: confessions may not be introduced unless they are voluntary.
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Under new rule, a criminal can voluntarily make incriminating statements that will be invalid because the officer did not read the criminal his Miranda rights Majority makes false assumption compulsion is inherent in custodial surroundings & no statement made while in custody can be the product of free choice unless the protective devices (warnings) as described by the court are used Could prevent coercion in other ways time limits for interrs, having independent observers present, require transcripts of the interr to see if coercion took place When confessions are corroborated with physical evidence they are the most reliable means of convicting a criminal with certainty Last, this rule may make it more difficult for suspects to exonerate themselves
Franks: all four Ds were convicted on remandnot necessarily letting the person go. 5th and 6th are meaningless if we arent informed
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6th is to safeguard fairness of trial and uphold integrity of the factfinding process.
[Dissenting: White, Joined by Blackmun and Rehnquist] Question is about waiverW knew of his right not to say anything w/out counsel and relinquished right when the car approached the place where he hid victims clothes. o Exercise of his own free will o Even if influenced by speech, decision to talk was not the product of an overborne will, not coercive, and was knowing/intentional. Majority rests on fact that W asserted right to counsel, then relinquished w/out counsel o Waiver is not a formalistic conceptshown when facts est. the accused knew of right and intended to relinquish. [Dissenting: Blackmun, Joined by White and Rehnquist] Rule is far too broadwhen there is no interrogation, statements should be admissible as long as they are truly voluntary.
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Facts: Background check wrongly showed R had a record. He was arrested as a felon in possession of a firearm. Cops didnt have warrant, so they brought in front of Magistrate, who told him the accusation, set bail, and committed him to jail. R was released for posting bond, but had no $ for a lawyer. R made several oral/written requests for lawyer, no response. 6 months later he was indicted, rearrested, and put in jail for 3 weeks. Finally got a lawyer who confirmed he was never convicted of felony. 1983 action against county for violating 6th right to counsel. Holding: A criminal Ds initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of 6th right to counsel. 6th triggered @ initial appearance before a judicial officer: preliminary arraignment or hearing when the magistrate informs the D of the charge in the complaint and conditions of pretrial release. o TX 15.17 countsfirst formal proceeding Should have appointed lawyer earlier and avoided 3 weeks in jail Once attachment occurs, accused is entitled to presence of appointed counsel during any critical stage of post-attachment proceedings. [Concurring: Alito, Joined by Chief and Scalia] Three ways 6th defines right to counsel: o Who may assert the right (the accused) o When the right may be asserted (in all criminal prosecutions) o What the right guarantees (the rightto have the Assistance of Counsel for his defense) 6th requires the appointment of counsel after the Ds prosecution has begun and then as necessary to guarantee the D effective assistance @ trialany pretrial critical stage Concerned w the countries resources Distinguishes btw right and stages o Court does not hold there was a 6th violation, but that the right to counsel attached @ Ds first court appearance. Just bc right attached does not mean he was denied right to counsel bc he may not have been refused counsel during a critical stage of the prosecution. [Dissenting: Thomas] Prosecution: manner of formal accusationwhen 6th attaches o Framers said criminal prosecutions, not criminal proceedings or criminal cases 5th:criminal cases o Appearance before magistrate is preliminary to the prosecution Affidavit of PC is NOT a formal accusation constituting criminal prosecution 6th right to counsel is offense specific Petitioners appearance was not an adversary proceeding 6th protects against the risk of erroneous conviction, not the risk of unwarranted prosecution Cruel Trilemma: Choice of 3 options, all result in punishment based on questioning (1) Incrimination (2) Perjury (3) Contempt
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Absence of police wrongdoing should not determine the voluntariness of a confession, should be a totalityof-the-circumstances surrounding the confession o Police overreaching is an element, but free will is also a concern o Traditionally use TOTC including motivation and competence of D to determine voluntariness Concerned about reliability o In accusatorial system, confessions carry heavy weight bc it lowers states burden of proof Tips the balance against the D Must be careful about confessions reliability No corroboration of Ds confession
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C. Limits on the Privilege Baltimore Dept. of Social Servs. v. Bouknight [1990]**Regulatory/Spec. Needs S [Opinion: OConnor]
Facts: Child hospitalized for abuse by mother. Social Services got an order to put the child in foster care. B got temporary custody w conditions. B violated conditions, Services petitioned court to put the child into foster care. Court granted the petition, but B would not produce the child. Court found B in contempt until she produced child. B said producing the child would violate 5th witness against himself. Holding: Custodian of a child may not invoke the 5th privilege against self-incrimination to resist an order of the juvenile court to produce the child when the States regulatory requirement does not compel incriminating testimony or aid a criminal prosecution. 5th implicated bc the act of production testifies to the existence, possession, or authenticity of the things produced. o Cannot claim 5th based upon incrimination that may result from the contents or nature of the thing demanded. Here, what examination of child would reveal. th cannot be invoked to resist compliance w a regulatory regime 5 o B assumed custodial dutiessubmitted to regulatory system o Once child was adjudicated a child in need of assistancecare/safety was part of States regulatory interests. o Social services efforts are not focused on criminal conduct: concerned for the childs safety If person complies w regulatory requirement and subsequently faces prosecution 5th protections may be available. [Dissenting; Marshall, Joined by Brennan] Would hold that the admission of possession/control presents a threat of self-incriminationlink in chain of evidence to est. guilt. As mother, B retained legal custody of child, does not transform it into custody conferred by State. o B is not acting on behalf of the State Would apply analysis to target Ds particular claim of privilege, precise nature of testimony sought, and the likelihood of self-incrimination caused by Ds compliance. o Individualized inquiry allows privilege to turn on concrete facts o If State demands testimony explicit grant of immunity to B
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[Concurring in Part and Concurring in the Judgment: Douglas] Question of admissibility of roadside statements is not in petition for cert. Court should not pass a constitutional question in advance of the necessity of deciding it.
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Facts: Tip implicated M and three others with robberies. Cop arrested M, brought him to Bureau, and Mirandized him. M read and signed notification certificate. Cop questioned M, who said he did not want to answer robbery questions, interrogation ceased. Two hours later, different cop questioned M about a shooting, which M had not been arrested/interrogated about, so M was Mirandized again and signed form. M made an implicating statement. Holding: Once suspect invokes right to silence and police cease the interrogation, police may resume questioning when it involves a different crime, a significant period of time has passed, and fresh Mirandas have been given. Once suspect invokes right to remain silentthe interrogation must cease. o One construction: once suspect invokes, he may never by subjected to custodial interrogation by any police officer @ any time or place on any subject. o Other construction: any statement after invocation of the right to silence is the product of compulsion and should be excluded from evidence, even if volunteered by person in custody w/out further interrogation. o Other construction: immediate cessation of questioning, resumption of interrogation after a momentary break. Miranda does not create a per se proscription of indefinite duration o Admissibility depends on whether the right to cut off questioning was scrupulously honored o Here: orally acknowledged he understood, signed waiver, ceased, two hour break, new officer, different location, unrelated murder, and reminded of rights again. Officer did not ask about robbery, only murder. Police honored the decision Leaves a lot of Qs open, if any of these things arent present, is it a violation of 5th? [Concurring: White] Sufficient to exclude all confessions which are the result of involuntary waivers, does not depend on a period of time that must pass. [Dissenting: Brennan, Joined by Marshall] Standard is vague/ineffective Proposed standard: resumption of questioning should happen upon appointment/arrival of counsel.
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Having exercised his right on J 19th to have counsel present, E did not validly waive it on the 20th during second custodial interrogation. Franks: no longer Escobedo Rule (6th) for right to counsel; assertion of right must be unambiguous
[Concurring: Burger] Inquiry is whether the resumption of interrogation is a result of a voluntary waiver. o Should be resolved as an intentional relinquishment/abandonment of a known right or privilege. Depends on facts and circumstances surrounding the case. o Enough that guard said E had to speak, not voluntary [Concurring in the result: Powell, Joined by Rehnquist] Does not join the courts opinion bc he does not know what it means Whatever the right, the standard for waiver is whether the actor fully understands the right in question and voluntarily intends to relinquish itnot initiation Once warnings are given and right to counsel is invoked, whether a suspect desires to talk w/out counsel is a question of fact to be determined by TOTC.
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Concurs in judgment because 2 year break in custody is a basis for treating the second interrogation as no more coercive than the first. o When suspect is left alone for a significant period of time, he is not as likely to draw conclusions when police interrogate him again.
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Ambiguous invocation of right to remain silentMosley rule: The suspects right to cut off questioning must be scrupulously honored When statements/actions can only be understood as invocation of right to remain silent, police should terminate questioning.
C. Trickery
Moran v. Burbine [1986] [Opinion: OConnor]
Facts: B arrested for burglary, confidential informant implicated him in murder. B was Mirandized, but refused to execute a written waiver. Bs sister obtained counsel for him for the breaking and entering charge, unaware of the murder suspicion. Lawyer called police and was told questioning was done for the night. Less than an hour later, B was subjected to a series of interviews, Mirandized 3x and signed written form that he did not want attorney before he gave statement. B had access to telephone. B signed 3 statements admitting to the murder. Holding: A prearraignment confession preceded by a valid waiver does not need to be suppressed bc the police misinformed an inquiring attorney about plans concerning the suspect or bc the police failed to inform the suspect of the attorneys efforts to reach him. Valid waiver: o Voluntaryproduct of a free and deliberate choice, rather than intimidation, coercion, or deception. o Knowingly and Intelligentlymade w full awareness of the nature of the right abandoned and the consequences of the decision to abandon it. o TOTC surrounding interrogation B validly waived right to counsel Events outside the presence of the suspect and entirely unknown to him have no bearing on the capacity to comprehend and knowingly relinquish constitutional right. o Would have waived rights even if lawyer did not call o Additional info would have be useful, but Constitution does not require police to supply a suspect w a flow of info to help him calibrate his self-interest. Once it is determined suspects decision was uncoerced, that he knew he could stand mute and req. a lawyer, and he knew of the States intention to use statements to secure a conviction waiver is valid as a matter of law. State of mind of police is irrelevant to voluntariness of respondents election to abandon his rights. Purpose of Miranda is to dissipate compulsion inherent in custodial interrogation and guard against abridgement of 5thrule focusing on how cops treat lawyers has no relevance. 6th does not apply bc statements took place before the initiation of adversary judicial proceedings 14th DPC Claim: conduct falls short of the kind of misbehavior that so shocks the sensibilities of a civilized society as to warrant federal intrusion into the criminal processes of the states. [Dissenting: Stevens, Joined by Marshall] Incommunicado questioning usually is the highest level of deception o Violates the ABAs Standards for Criminal justice o State courts + legal professions standards conclusion that police may not interfere w communications btw an attorney and the client whom they are questioning Failure of cops to tell B of the attorney call makes waiver invalid o Heavy burden of waiver on government o Miranda warnings are necessary, but not sufficient for a valid waiverno difference btw deceptive misstatement and concealment of a critical fact. Balancing approach is misguidedinterest in prompt justice to a murder/rapist always outweighs value of procedural safeguards. Deceiving lawyer (clients agent) = deliberate deception of client himself
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Missouri v. Seibert [2004] [Judgment of the Court and an Opinion: Souter, Joined by Stevens, Ginsburg, and Breyer]
Facts: S was arrested, taken to police station, and questioned w/out Miranda for 30-40 mins. S gave incriminating statement, then she was given 20-minute break. Cop turned on tape recorder, Mirandized S, and obtained a signed waiver. Cop resumed questioning and S repeated her confession. Cop did not tell her the previous statement could not be used. Holding: When question-first tactic produces a confession prior to Miranda warnings, a repeated confession will be inadmissible unless a reasonable person would have perceived the second line of questioning as a new and distinct experience. Does question first warn later function effectively as Miranda requires? o Must put suspect in position to make an informed choiceotherwise second stage continuous w first. o Warnings are ineffective in preparing suspect for successive interrogation. Suspect does not believe he has a genuine right to remain silentalready confessed Police did not advise her that the prior statement could not be used Impression that the questioning was a continuation of earlier questioningreasonable to regard 2 sessions as continuumdo not convey message that she had a choice about continuing to talk. Elstadheld an Mirandized statement following an un-Mirandized statement can be admissible if the waiver of Miranda is voluntary. Did not follow rule in this case.ci [Concurring: Breyer] Courts should exclude fruits of initial unwarned questioning unless failure to warn was in good faith. Effective Miranda approach will serve same function: only when certain circumstances intervene btw unwarned questioning and postwarning statement. [Concurring in the Judgment: Kennedy] Majoritys objective inquiry from the perspective of the suspect is too broad. Narrower test: admissibility of postwarning statements related to the substance of prewarning statements must be excluded unless curative measures are taken before postwarning statement is made. o Curative measures: ensure a reasonable person in the suspects situation would understand the import and effect of the Miranda warning and waiver.
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[Dissenting: OConnor, Joined by Chief, Scalia, and Thomas] Agrees w plurality that Ss statement is not inadmissible under fruit of the poisonous tree theory and that subjective intent of interrogating officer should not be considered. Would analyze two-step under voluntariness standards o If Ss 1st statement is involuntary, court must examine whether the taint dissipated through passing of time or a change in circumstances. o 2nd statement should be suppressed if S shows its involuntary despite Mirandacourt should analyze on remand.
D. Continuing Validity
Facts: D indicted for crimes, moved to suppress non-Mirandized statement. Court held that 3501, which makes admissibility of statements turn on whether they were voluntary, was satisfied and Congress had the final say on question of admissibility. Holding: Miranda, being a constitutional decision of the Court, may not be overruled by an Act of Congress. Miranda and its progeny in the Court govern the admissibility of statements made during a custodial interrogation in both state and federal courts. Congress has the ultimate authority to modify or set aside judicially created rules of evidence and procedure that arent req. by Constitution o Congress may not supersede decisions interpreting/applying Constitution Miranda is a constitutional decision o Rule applies to state courtscourt cannot hold supervisory power over state courtstherefore, must be Constitutional command. o Language of Miranda: give concrete constitutional guidelines for law enforcement agencies and courts to follow. Miranda is a prophylactic ruledoes not have the full power of a constitutional right [Dissenting: Scalia]
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A. Rationale
Mapp v. Ohio [1961] [Opinion: Clark]
Facts: Officers went to Ms house pursuant to info that a suspected bomber was hiding there and there was policy paraphernalia being hidden there. Officers knocked and demanded entrance, but M refused. Hours later additional officers sought entry, forcibly opened the door, and gained admittance. Cops would not allow attorney into the house. Cops handcuffed M for being belligerent and searched through her house. Ultimately, cops found obscene materials. At trial, no search warrant was produced. Holding: All evidence obtained by searches/seizures in violation of the Federal Constitution is inadmissible in a criminal trial in a state court. Weeks: held that 4th barred use of evidence secured through an illegal search/seizure in a federal prosecution. Wolf: declined to apply Weeks exclusionary rule to the States by the DPC. o More than half the states have adopted/adhered to Weeks rule since. o Other remedies for protection have been worthless and futile o Silver Platter doctrine: recently discardedallowed federal judicial use of evidence seized in violation of the Constitution by state agents. ths right to privacy enforceable against States through DPC of 14th 4 o Sanction of exclusion must also be enforceable against themotherwise, unreasonable searches/seizures would be a form of words Purpose of exclusionary rule: o to deterto compel respect for the constitutional guaranty in the only effectively available way by removing the incentive to disregard it. As it stands, the State, by admitting unlawfully seized evidence, serves to encourage disobedience to the Federal Constitution which it is bound to uphold. o Federalismavoid conflict btw Federal and State
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Cardozo: the criminal is to go free because the constable has blundered.in some cases, this
will undoubtedly be the result. Pg. 945. o Judicial integrity
o The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. Pg. 945.
[Concurring: Black] 4th, standing alone is not enough to bar introduction of papers/effects seized in violation o Language is not expressly precluding However, when you consider ban on unreasonable searches/seizures w/ ban against self-incrimination, ER is justified. [Concurring : Douglas] Allowing States to come up w their own remedy robs the 4th of meaningful force o Prosecution of the police officer is too lofty o If ER isnt req., action of trespass against officer would be difficult for a citizen to maintain. [Dissenting: Harlan, Joined by Frankfurter and Whittaker] Court has disregarded stare decisis states still adhere to common-law non-exclusionary rule Federal court cannot point the State in one direction or anotherstate power Trial procedure is w/in state power
o Suppression of evidence, however, has always been our last resort, not our first impulse Pg. 955.
o o Exclusionary rule substantial social costs ER not applied merely bc constitutional violation was a but-for cause of obtaining evidence. Police would have executed the warrant whether or not the preliminary misstep occurred
o the exclusionary rule has never been applied except where its deterrence benefits outweigh its substantial social costs. Pg. 957
Interests promoted by knock-and-announce different than shielding persons, houses, papers and effects: o Protection of human life and limbself-defense by resident o Protection of property o Protects privacy and dignity that can be destroyed by sudden entrance ER applied where deterrence benefits outweigh the substantial social costs
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Costs: exclusion of relevant incriminating evidence, get-out-of-jail-free card, difficult for trial court to assess, violence against officers from waiting longer o Benefits: deterrence not worth a lot o Civil law suit is an effective deterrent Franks: first case w/ violation of 4th and no ER, nothing in 4th says you have to exclude. o
[Concurring in Part and Concurring in the Judgment: Kennedy] K and A protects rights/expectations linked to constitutional principles, not trivial ER will continue Other ways to discipline cops, like civil remedies, regulations, or legislation Suppression is more seriousK and A is too attenuated for suppression o Failure to wait 20 seconds is not what causes the discovery of evidence o Not a widespread pattern of violation Evidence discovered bc of subsequent search, not bc of failure to K and A [Dissenting: Breyer, Joined by Stevens, Souter, and Ginsburg] ER should apply to violation of knock-and-announce bc it is inherent in assessing the reasonableness of a search/seizure. Gov. officials will find it easier to proceed w/ what they consider a necessary search immediately and w/out the requisite constitutional compliance. Violation of K and A is a widespread pattern Court only has denied application of ER when: o There is a specific reason to believe application of the rule would not result in appreciable deterrence. o Admissibility in proceedings other than criminal trials was at issue. Actual entry was connected to unlawful entryentry was a necessary condition to cops presence in Hs home and there presence was a necessary condition in their finding/seizing evidence. Majority gives attenuation a new meaning: occurs when the interest protected by the constitutional guarantee that has been violated would not be served by suppressing the evidence obtained.
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Facts: Christian burial speech case. Deciding whether evidence pertaining to discovery/condition of victims body was properly admitted on the ground that it would ultimately or inevitably have been discovered even if no violation of any constitutional or statutory provision had taken place. Holding: Physical evidence obtained through a violation of constitutional right will not be excluded if the cops can prove by a preponderance of the evidence that they would have found it anyway. Court adopts the ultimate or inevitable discovery exception to the exclusionary ruleevidence properly admitted on ground that it would ultimately or inevitably have been discovered even if no other violation of any constitutional provision taken place. Exclusionary rule serves to deter police violations o Prosecution is not to be put in a better position than it would have been in if no illegality had transpired o Derivative evidence analysis ensures the prosecution is not put in a worse position bc of some earlier police error of misconduct. o Independent source doctrine: does not apply here bc it allows admission of evidence discovered by means wholly independent of any constitutional violation. Prosecution must est. by a preponderance of evidence that the information would have been discovered by lawful meansthen deterrence rationale has little basis, so evidence should be received. o Low burden Detectives conduct did nothing to impugn reliability of evidence in question o Suppressing evidence that would have been found anyway puts state in worse position than if no misconduct. Body was bound to be discovered by efforts already underway. Would be found w/in a short time and in essentially the same condition [Concurring: White] Brewer I was a 5-4 decision and four members of the court did not think Detective did anything wrong or unconstitutionalacted as many police officers would have done under similar circumstances and in light of then-existing law. [Concurring in Judgment: Stevens] Condemns officers conduct: o Speech was an attempt to substitute and ex parte, inquisitorial process for adversarial process o Not a case where the constable blundered, but one where the constable planned an impermissible interference w the right to assistance of counsel. Officers question leads to costly litigation--$$ and labor [Dissenting: Brennan, Joined by Marshall] Agrees that inevitable discovery exception to exclusionary rule is consistent w/ Constitution o Court loses sight of difference btw inevitable discovery and independent source: independent source allows prosecution to use evidence only if it was obtained by fully lawful meansdoes not do any damage to constitutional protections exclusionary rule is meant to enforce. o Gov. should have to satisfy heightened burden of proof before using evidenceclear and convincing evidence
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Facts: Confidential informant of unproven reliability told police two people were selling drugs @ their resident, said he had witnessed a sale 5 months earlier. Police started an investigation, saw druggies coming in and out w small packages and saw relevant activity w respondents automobiles. Police got facially valid search warrant for houses and cars. Holding: Evidence seized in good faith by officers reasonably relying on a search warrant issued by a neutral magistrate is admissible in the prosecutions case in chief if it was objectively reasonable for the officer to believe the warrant was properly issued. 4th does not forbid introduction of illegally seized evidence in all proceedings ER sanction is imposed separately from 4th violationnot constitutionally bound o Weighed analysis of costs and benefits of preventing use in the prosecutions case Social costs of ER: interference w criminal justice systems truth-finding so some guilty Ds go free/receive reduced sentences. Benefits: when officers act in objective good faith or transgressions are minor, benefit is low o Application of the rule is restricted to areas where its remedial objectives are most efficaciously served Dissipation of the taint concept: marks the point where detrimental consequences of illegal police action became so attenuated that the deterrent effect of ER no longer justifies cost. Preference for warrantsdeference to magistrates determination o ER not designed to punish the errors of judges and magistratesthey dont ignore/subvert 4th o ER will not have deterrent effect on issuing judge/magistrate No stake in the outcome o Exclusion of evidence must alter the behavior of individual law enforcement officers or the policies of their departments. Suppression of evidence obtained pursuant to a warrant should be ordered on a case-by-case basis and only where exclusion will further purposes of the ER. [Concurring: Blackmun] 4th is not a constitutionally compelled result of 4th. If good-faith exception to ER changes police compliance w 4thcourt will have to reconsider
the scope of the exclusionary rule is subject to change in light of changing judicial understanding about the effects of the rule outside the confines of the courtroom.
[Dissenting: Brennan, Joined by Marshall] Court is gradually abandoning ERhere allows use of illegally obtained evidence against the individual whose rights have been violated. Bill of Rights restrains the power of Gov. as a wholenot one particular agency o 4th condemns initial unconstitutional invasion of privacy and subsequent use of evidence Invalid warrant = naked invasion of privacy DC determined non of the Ds had no reasonable expectation to privacy in Via Magdalena locationno standing to objectsuppression will not weaken Gov.s case [Concurring in No. 82-963 and Dissenting in 82-1771: Stevens] Search/seizure cannot be both unreasonable and reasonable If no PCunreasonable Framers meant to address the unreasonable issuance of warrantsconcerned about overreaching warrants. Where PC is lacking, a reasonable person in the circumstances would not believe there is likelihood for the search to produce evidence.
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Four situation where a reasonably well-trained officer would not rely on a warrant subsequently declared defective: o When magistrate issued warrant relying on info supplied by a cop who knew the statements in docs were false or disregarded truth. o Evidence is excluded if the magistrate abandoned his judicial role and lacks neutrality o Officer may not rely on a warrant issued by a magistrate based on wholly conclusory affidavit o Warrant is so facially deficient that the officers cannot reasonably presume its valid (Groh)
Facts: H went to get something from his impounded truck, cop checked for outstanding arrest warrants, and found there was one for Hs failure to appear on a felony charge. Cop followed H, pulled him over, and arrested him. SILA found drugs and gun (felons cannot possess). Holding: When police mistakes are the result of negligence, rather than systemic error or reckless disregard of constitutional requirements, ER does not apply to violation of 4th. When 4th violation occurs and search or arrest was unreasonable, does not necessarily mean exclusionary rule applieslast resort, not first impulse ER: police conduct must be sufficiently deliberate, that exclusion can meaningfully deter it o Must be worth the price paid by the justice system o Deters deliberate, reckless, or grossly negligent conduct, or systematic negligence. o Good faith analysis is objective o Does not suggest all recordkeeping errors by police are immune from ER Circumstances: neighboring countys sherriff-run database; negligence was isolated, not recurring. Also the court uses attenuated three times; turns also bc the database did not even belong to the county in which the arrest occurred. [Dissenting: Ginsburg, Joined by Stevens, Souter, and Breyer] Application ER would discourage police error @ issue Deterrence: thinks it would deter o Tort law: liability for negligence creates incentive to act w more care o Sherriffs Dept is in the position to remedy the situation By restricting suppression, H has no remedy No incentive to maintain up-to-date recordsofficer wanted to arrest H and used records to make legit [Dissenting: Breyer] Arizona v. Evans: held recordkeeping errors do not trigger ER, as long as police reasonably relied upon court clerks recordkeepingdistinction btw judicial errors and police errors.
Facts: F was indicted and cops went to his house to arrest him, saying they came to discuss his involvement in drug distribution. F says he used drugs w four people in indictment. After 15 mins, cops bring F to jail and Mirandize him, F waives and reiterates earlier inculpatory statements. H says statements in home should be suppressed as violation of 6th. Holding: Officers violate 6th by deliberately eliciting information from D in post-indictment visit to his home absent presence of counsel or waiver of counsel, regardless of whether officers conduct constituted an investigation. Does not matter if its an interrogation for 6th claims o Officers deliberately elicited information from F Under Massiah: 6th attaches @ indictment o Officers actions violated 6thno counsel or waiver Elstad fruits analysis does not apply bc its not a 5th case
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U.S. v. Jones
Ex-post or ex-ante? Property trespass still applies Aggregation of data from someone following you
Other remedies to 4A violations: Bivens or 1983 action o Subject to officers qualified immunity Brinegar [Dissenting: Jackson]
4th freedoms are indispensible, when they are taken away it cowers the population and puts terror in every heart. o Only flagrant abuses come to the attention of the courts bc when officers find nothing incriminating, there is no redress. o Diff. from other rights bc there is no way for individual to invoke advance protection (injunction)
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