1. Checklist for 4th amendment 2. The Fourth amendment a. Reach of the 4th 3. Passing the 4th threshold a.

What is a search? i. Privacy test ii. Property test iii. Katz Applied 1. Tracking devices 2. Third party doctrine 3. Dog sniffs 4. Open field, curtilages, & surveillance a. Technology now in general use 5. Personal property on bus 4. Fourth amendments substance a. Probable cause i. Rule for informants ii. Sliding scale iii. Anticipatory warrants b. Arrest warrants c. Search warrants i. Exceptions ii. Constitutional debate iii. Elements of a valid search warrant iv. Execution of a search warrant 1. Knock and announce rule 2. Scope of search particularity 3. Searching others during execution d. Warrant clause: exceptions to warrant req i. Exigent circ ii. Community caretaking iii. Searches incident to arrest 1. Pretextual stops & arrests iv. Cars & containers 1. Cars 2. Containers v. Plainview & touch doctrines 1. What is a Seizure of property vi. Consent 1. Third party consent e. Diminishing roles of warrants & PC i. Stop & frisk exception to PC req 1. Seizure stop 2. Search/frisk ii. Drawing lines seizures v. de facto arrest iii. Seizures v. Non seizures 1. Airports 2. Bus 3. Seizures in pursuit 4. Car seizures 5. Anonymous tips & RS iv. Extending terry

p. 2 p.2 p.3

4 5 6 8 9 9 10 11 12 13 14 15 16 17

18 19 20 21 22 23 23 25 26 27 28 29 29 30 32 32 33 34 35

1. Searches after arrest in home a. Protective sweep 2. Seizures of property 3. Warrantless car searches f. Reasonableness in special needs context i. Special needs exception to warrants/Community Caretaking 1. Border searches 2. Drug testing g. Remedies for 4th amendment violations i. Exclusionary rule 1. Should the rule be abolished 2. Exceptions to exclusionary rule 3. Scope of Excl rule FOPT doctrine 5. Police interrogation self incrimination clause a. Miranda warnings i. Miranda midstream rights given ii. Miranda custody iii. Miranda Interrogation iv. Waiver & invocation of Miranda 6. Role of defense counsel a. Right to appointed counsel b. Right to effective counsel

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Sources of Criminal Procedure 1. Fourth amendment (no unreasonable searches and seizures) - 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 2. Fifth amendment: a. Right to indictment for serious crimes: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; b. No double jeopardy: nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; c. Right against self-crimination - nor shall be compelled in any criminal case to be a witness against himself, d. Due process clause - nor be deprived of life, liberty, or property, without due process of law 3. Sixth amendment: a. Speedy and public trial - In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, b. Right to jury - by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and c. Right to know crimes being accused of - to be informed of the nature and cause of the accusation; d. Confrontation clause - to be confronted with the witnesses against him; e. Right to subpoena favorable witnesses - to have compulsory process for obtaining witnesses in his favor, f. Right to counsel - and to have the assistance of counsel for his defense 4. 14th amendment a. Section 1: nor shall any state deprive any person of life, liberty, or property, without due process of law b. Section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. c. Incorporation applies Bill of Rights to the states i. Full incorporation The Due Process Clause incorporates the entire Bill of Rights Advocated by Justice Black. The Supreme Court has rejected this theory ii. Fundamental Rights The Due Process Clause is independent of the Bill of Rights and protects rights that are fundamental to ordered liberty. This theory was advocated by Justices Cardozo and Frankfurter. iii. Full incorporation plus The Due Process Clause incorporates the entire Bill of Rights plus other fundamental rights. iv. Selective Incorporation - McDonald v. Chicago (2010) (Selective incorporation involves convincing the court that a right is "fundamental" by being implicit in the concept of ordered liberty or deeply rooted in our nations history and traditions) 1. Once a right is deemed fundamental, it is deemed applicable to the states 4th amendment: Text 1. Unreasonableness Clause: 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 2. Warrants Clause: 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

Checklist for Fourth Amendment: If the answer is Yes move to the next question. If the answer is No then the evidence is admissible against the defendant. 1. People: Is the defendant among the people protected by the 4th amendment? 2. Person, House, Paper or Effect: Did the police activity in question implicate a person, house, paper or effect? 3. Search/Seizure: Did the police activity constitute a search and/or seizure? 4. Warrant: Did the police obtain a search warrant or arrest warrant? a. If YES: several issues are raised: i. Was the party issuing the warrant a neutral and detached magistrate? ii. Was the warrant in proper form: particularity requirement? iii. Did the magistrate issue the warrant on probable cause? iv. Did the police execute the warrant properly? b. If NO: did the police have an adequate reason for not obtaining the warrant? (any exceptions apply?) 5. Adequate Grounds: Did the police have adequate grounds to conduct the search and/or seizure? a. Did the police have probable cause for the search or seizure? b. If not, could the police conduct the search on reasonable suspicion under the circumstances? 6. Reasonableness: Was the search and/or seizure reasonable or unreasonable? 7. Exclusionary Rule: Does the exclusionary rule apply? 8. Derivative evidence: Does the government seek to introduce any other evidence that is casually linked to the initial illegal search or seizure (fruit of the poisonous tree)?

I. THE FOURTH AMENDMENT: AN OVERVIEW->

A. THE TEXT & ITS MYSTERIES 1. The Reach of the Fourth Amendment -> Unreasonable S&S-> a. 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 i. Theres controversy b/w reasonableness clause (first part of amendment) and ii. Warrant clause - remaining language (no warrants shall issue, but upon probable cause) 1. Does warrant clause mean searches conducted w/o warrants are at least, presumptively unreasonable? And in violation of the reasonableness requirement? 2. Or did the drafters of the 4th amendment mean only that when a warrant is issued it must meet the requirements of probable cause B. THE REACH OF THE FOURTH AMENDMENT-> 1. The People-> a. Rule: The people refers to a class of persons who are part of a national community OR who have otherwise developed sufficient connection with this country to be considered part of that community-> i. Rule: Fourth Amendment protections do not apply to searches and seizures by United States agents of property owned by a nonresident alien in a foreign country (US v. Verdugo) b. US v Verdugo (Sup ct 1990) Mexican resident arrested on drug charges and brought to US. While he was awaiting trial, DEA officers raided his residence in Mexico. i. Court held that he was NOT one of the people protected by the 4th amendment. ii. Rule: Fourth Amendment protections do not apply to searches and seizures by United States agents of property owned by a nonresident alien in a foreign country iii. Reasoning: the ds connection to the US lawful but involuntary is not of the sort to indicate any substantial connection with our country. 2. Searching party-> a. Rule ->4th amendment ONLY limits govt action, NOT private parties

i. In Verdugo, Searches were conducted by federal law enforcement agents ii. What if a search or seizure occurs in the US, of a US citizen, by a PRIVATE PARTY? 1. i.e. private detective iii. Does the 4th amendment protect? -> NO, 4th amendment does NOT protect private searches or seizures

II. PASSING THE FOURTH AMENDMENTS THRESHOLD

1. The 4th amendment does NOT prohibit ALL unreasonable law enforcement practices-> a. i.e. a police officer may act as arbitrarily or unreasonably as she wants, as long as she does not search or seize, and even those are unregulated by the 4th amendment UNLESS they bear the requisite relationship to persons, houses, papers, and effects. b. This chapter focuses on the question-> i. What governmental conduct constitutes a search or seizure of a person, house, paper, or effect, and therefore, trigger 4th amendment protection? A. WHAT

IS A SEARCH? 1. GENERAL PRINCIPLES: KATZ v. UNITED STATES (Sup ct US 1967)

a. 2 Different tests for whether govt has conducted a search after Jones->

b. PRIVACY Test -> (something where govt not using your property, i.e. smartphone) *can also argue sotomayor will join if have property right in something.
a. (1) 3 fold requirement-> (Harlan Katz concurrence) 1. (1)SUBJECTIVE expectation of privacy AND 2. (2)REASONABLE expectation of privacy (objective) 1. here the recording device was placed OUTSIDE the phone booth (to listen to convo) and the court still found an unlawful search-> a. here, had a subjective expectation of privacy AND b. an enclosed telephone booth is an area where, like a home, and UNLIKE a field, a person has a constitutionally protected reasonable expectation of privacy (Katz) 3. (3) can only be short term (Alito ->Jones) a. Alito JONES-> Govt installed GPS on car for 28 days after getting search warrant b. Holding: 28 days too long, BUT -> i. short term monitoring on public streets is fine, b/c doesnt invade expectation of privacy, as opposed to long term ii. *prof thinks this means can do what happened in Jones, can put GPS on car & monitor you for hr or day, b/c doesnt invade objective expectation of privacy, but longer monitoring does invade. 4. (4) but also says matters what kind of offense (never before used in 4th amendment)-> a. meaning maybe if the crime was more serious, rather than just drug trafficking, may not be an unlawful search (5 kilos of cocaine & cocaine base)

c. PROPERTY Test-> (something where govt invading your physical property)

i. HOWEVER, After Jones-> 1. New std* for whether theres a search->

Physical invasion + Using to get info = 4th search Must also be enumerated in 4th (person, house, paper, effect, etc.) Jones-> the installation of a GPS tracking device on Jones' vehicle, without a warrant, constituted an unlawful search under the Fourth Amendment. i. Govt installed GPS on car for 28 days after getting search warrant ii. Here, physical invasion is installation of GPS device & used it to get info-> 1. *Never got authority to put GPS on car (not lawful warrant) iii. UNLIKE Karo mere trespass not 4th violation-> a. Consent was given to place beeper in drum in Karo iv. How does Knotts fuse with Jones? a. Only a single trip, jones was for too long 2. Says trespass based on property law-> a. Says always core concept & katz never replaced property but complemented it 4th Amendment Searches history-> 2. Notes: a. Before Katz, a physical intrusion was required to constitute a search, but here the recording device was placed OUTSIDE the phone booth and the court still found an unlawful search. i. Katz shifting a 4th Amend Property right -> 4th Amend PRIVACY right ii. But after JONES-> 1. *Now privacy & property conceptions both in play for 4th protection. b. Majority says what a person knowingly exposes to the public is NOT protected by the 4th amendment. i. What does public mean here. ii. What if purposely?

a. b. c. a.

2. THE KATZ DOCTRINE APPLIED & Issues with Jones->

1. Rule: (U.S. v. White Sup ct. 1971) a. The 4th amendment does NOT protect a person from someone wearing a wire or having his conversations with an associate transmitted to a recording or listening device located elsewhere. i. Reasoning 1. D does NOT have a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal them to the police. 2. Based on Hoffa and Lewis > a. if the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, b. neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the states case. ii. Facts: 1. A govt informer carrying a concealed radio transmitter engaged in conversation with White and those conversations were simultaneously transmitted to federal narcotic agents. Those agents testified at whites trial as to the conversations they heard. 2. Also during a conversation in the informers house, an agent was hiding in the kitchen and overheard the conversations, but this agent didnt testify.

2. Notes: a. One scholar observed diff b/w Katz & White-> i. Law treats secret surveillance of speech or other behavior largely according to whether the surveilling agent/informant is visible or invisible to the subject. 1. An agent, visibly present though masquerading is thought to gather evidence in a fundamentally different manner than a concealed agent or a hidden electronic device. 3. TRACKING DEVICES-> Beyond pen registers:-> 1. Knotts-> EXTERIOR ->NO violation a. Rule: Installation of a radio transmitter on Ds property (chemical drum), and using it to track Ds movement, does NOT constitute an unlawful 4th search. (Knotts) i. A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another (Knotts Sup ct 1983) ii. No evidence police used beeper once D ended his journey and was inside his cabin. b. How does this fuse with Jones? i. Only a single trip, jones was for too long 2. Karo Sup Ct. 1984-> Interior-> Violation a. Rule: the warrantless monitoring of a beeper in a private residence, a location not open to visual surveillance, violates the 4th amendment (what about smith, isnt phone interior?) i. Feds put tracking device in a can of ether and monitored Ds movements in his home ii. Society expects private residences to be free of govt intrusion not authorized by a warrant. iii. Distinguishes Knotts b/c the transmitter told the authorities nothing about the INTERIOR of the premises

A. THIRD PARTY DOCTRINE->

b. Rule: Third party principle-> i. A person has NO legitimate expectation or privacy in info he voluntarily turns over to third parties (US v. Miller)-> (No unlawful search) 1. Held that a bank depositor has no legitimate expectation of privacy in financial info voluntarily conveyed to banks and exposed to their employees in the ordinary course of business. 2. The depositor takes the risk that the info will be conveyed to the govt. EVEN if info is revealed on the assumption it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. c. Smith v. Maryland (Sup ct. 1979)-> d. Rule-> i. Fails objective prong of search-> The warrantless installation of a pen register to record numbers dialed from an individuals home telephone does NOT violate the individuals legitimate expectations of privacy e. Reasoning-> i. Here, D voluntarily conveyed numerical info to the telephone company and exposed that info to its equipment in the ordinary course of business. 1. Challenged activity is the pen register installed on telephone company property so CANNOT claim property was invaded or police intruded into a constitutionally protected area.

a. Since a pen register ONLY discloses telephone numbers dialed and NOT any communication (distinguishes Katz), Ds argument is that its installation and use constituted a search upon a claim that he had a legitimate expectation of privacy regarding the numbers he dialed on his phone b. Telephone users should realize that they must convey numbers to the telephone company, since its through their equipment calls are completed

B. DOG SNIFFS
1. Dog sniffs NOT a search if youre in a public place (i.e. airport or trunk of car) -> b/c of KATZ/out in public, meaning phone booth not in public a. Illinois v. caballes (Sup ct 2005) -> A canine sniff does NOT require opening the luggage it does NOT expose noncontraband items that otherwise would remain hidden from public view i. as does, i.e., an officers rummaging through the contents of the luggage. b. 6-2 decision -> are dogs reliable enough?-> i. you are ALLOWED to make errors in probable cause. (by its nature)

C. Open field, curtilages, and beyond: when is the 4th amendment implicated?
c. Oliver (1984 Sup ct) -> No reasonable expectation of privacy in open field under Katz i. Katz > 1. Subjective-> says were looking for subjective of expectation of privacy no trespassing sign & fence 2. Objective-> a. (however, both sides conceded that signs and fences do NOT bar public from viewing open fields in rural areas b/c public & police can lawfully survey lands from air b. therefore expectation of privacy in open fields is NOT an expectation that society recognizes as reasonable) d. OPEN FIELDS-> The sup ct treats a persons home more protectively than other sites, even including land near the residence-> i. open fields doctrine -> entry into an open field does NOT implicate the 4th amendment 1. based on explicit language of 4th amend persons, houses, papers, and effects > open field is NOT a house) Hester v. US (sup ct 1924) 2. In Oliver, the court held that this doctrine remains good law after Katz. According to Oliver, an open field may include any unoccupied or undeveloped area OUTSIDE OF THE CURTILAGE of a home. a. An open field need be NEITHER open nor a field as those terms are used in common speech i.e. a thickly wooded area may be an open field as that term is used in construing the 4th amendment. ii. In Oliver-> Holding: NO SEARCH-> 1. Two officers came upon locked gate w/ no trespassing sign 2. agents walked around the gate and found a field of pot over a mile from Ds home. 3. Oliver -> suggests privacy is replacing property in Katz-> a. b/c otherwise its hard to reconcile Oliver w/ 4th amendment if its supposed to protect property rights. (b/c essence of property rights is to exclude others / bundle of sticks) e. CURTILAGE-> PROTECTED from Govt intrusion-> Land immediately surrounding home

i. Hester-> Common law distinguished open fields from the curtilage, the land immediately surrounding and associated with the home. ii. Rule: 1. ONLY the curtilage, NOT the neighboring open fields, warrants 4th amendment protections that attach to the home. iii. Curtilage TEST-> (4 factors *no one is dispositive) 1. Proximity to home 2. Included in enclosure? 3. Nature of the uses to which area is put 4. Steps taken to Protect (i.e. locked?) a. Question-> how intimately ties to the home itself is the area that it should be placed under the homes umbrella of 4th amendment protection. b. Curtlidge does NOT automatically give 4th amendment protection-> c. i.e. Cali v. Ciraolo-> (1986 sup ct) i. 2 officers got private planes and flew over ds house both were trained in pot identification and were able to identify pot from above. 1. Based on this, the police were able to obtain a warrant Chief justice burger declared the surveillance of the curtilage of Ciraolos home was NOT a search and, therefore, fell OUTSIDE the protections of the 4th amendment. 2. Objective problem-> Court found that where private and commercial flight in the public is always routine, it is unreasonable for D to expect that his pot plants were constitutionally protected from being observed with the naked eye from 1,000 ft above. d. California v. Greenwood (sup ct 1988)-> i. No privacy protection for garbage left on the curb in FRONT of a house for trash pickup. ii. The court ruled that a person does NOT have a reasonable expectation of privacy in garbage left outside the curtilage of a home for trash removal. 1. Objective prong -> a. of Katz is not satisfied in such circumstances - > common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.

f. Technology not in general use->

i. Kyllo v. US-> 2001 Sup ct-> 1. Rule: Obtaining info by sense enhancing technology that could not otherwise have been obtained w/o physical intrusion into a constitutionally protected area constitutes a SEARCH-> a. at least where (as here) the technology in question is NOT in general public use. th amendment search does NOT occur even when the explicitly protected 2. A 4 location of a house is concerned UNLESS -> a. the individual manifested a subjective expectation of privacy in the object of the challenged search AND b. society is willing to recognize that expectation as reasonable. i. If using technology in general use, then no reasonable expectation of privacy 3. Facts:

a. Used heat lamp from street into house to find out growing weed. 4. Reasoning: a. Different from katz, b/c 4th amendment says something about houses and here dealing with a private home. b. At the very core of the 4th amendment stands the right of a man to retreat into his own home and there be free form unreasonable govt intrusion. (Silverman) ii. NOTES: 1. Katz-> a. Distinguishes b/w private info & public info b. Inside =private i. Imager is reading heat on inside of house -> private info 1. All details of house are intimate ii. Public technology should only be whats generally used otherwise no privacy expectation iii. Also slippery slope if you say only reading outside of house (as dissent does), b/c there would be no privacy b/c you could find out everything through technology. c. Outside = public i. Dissent shouldve used insulation 1. Imager only measuring outside of house 2. One commentator thinks this will dilute 4th amendment in long run a. You will notice that the thermal imaging in Kyllo took place in 1991, a full decade before this case reached the high court, therefore the same commentator observed that the courts rule quite possibly would not even protect Kyllo today

g. Personal property->
i. Bond v. U.S.-> (Supt ct 2000) 1. Rule: Agents CANNOT physically inspect the outside of Ds bag, without probable cause or consent, on a bus during routing inspections. a. Facts: i. At a checkpoint border patrol got on bus and squeezed luggage in overhead storage bins ii. In Bonds case, felt brick like object and he then consented to search b. Reasoning: c. 4th amendment asks two questions-> i. First, whether the individual, by his conduct, has exhibited an actual expectation of privacy, whether he has shown that he sought to preserve something as private 1. Here, D sought to preserve privacy by using an opaque bag and placing that bag directly above his seat. ii. Second, we inquire whether the individuals expectation of privacy is one that society is prepared to recognize as reasonable. 1. a bus passenger clearly expects that his bag may be handled by someone else, i.e. another passenger, BUT he does NOT expect that other passengers or bus employees will feel the bag in an exploratory manner.

III. The Fourth Amendments substance

1.

*Probable cause requirement (always required, but does not make search automatically reasonable)->
a. The 4th amendment prohibits UNREASONABLE searches and seizures. i. Generally, this means that searches and seizures must be SUPPORTED by probable cause-> 1. Put differently, a search or seizure conducted in the ABSENCE of probable cause ordinarily is considered an unreasonable one. ii. DIFFERENT from -> whether a warrant is required, probable cause is ALWAYS required 1. Warrant clause - remaining language (no warrants shall issue, but upon probable cause) a. Does warrant clause mean searches conducted w/o warrants are at least, presumptively unreasonable? And in violation of the reasonableness requirement? b. Or did the drafters of the 4th amendment mean only that when a warrant is issued it must meet the requirements of probable cause

2. Definition ->Probable cause exists when the circumstances within an officers personal knowledge, and about which he has reasonably trustworthy information, are sufficient to warrant a person of reasonable caution to believe that: a. Search: (1) that a crime has been committed and (2) the thing you are looking for is present at the specified premises at the specified time b. Arrest: (1) that an offense has been committed and (2) the person to be arrested committed it. 3. Basis for Probable Cause - Probable cause may be founded on: a. (1) direct information, i.e., information the officer secured by personal observation; and b. (2) hearsay information. c. No weight may be given to unsupported conclusory statements in probable cause determinations d. Direct Information - the magistrate may consider all direct information provided by the affiant. The affiants information is considered reasonably trustworthy because it is provided under oath e. Hearsay (Informant) Information - A magistrate may consider hearsay for purposes of determining probable cause, as long as the information is reasonably trustworthy. The informants identity need not be disclosed to the magistrate unless the magistrate doubts the affiants credibility regarding the hearsay f. Issue of probable cause ARISES in one of two circumstances-> i. First, the police may apply to Judge for an arrest or search warrant ii. Alternatively, the police may conduct an arrest or search w/o a warrant. 1. *the judge should place a somewhat higher burden on the govt to prove probable cause in such warrantless circumstances than if the police had originally sought a warrant. g. Probable cause to ARREST/SEARCH-> i. Current Rule for informants (Totality of Circ test)-> 1. Whether, given all circ, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of crime will be found in a particular place. (Illinois v. Gates Sup ct 1983) i. *Officers Subjective state of mind (except for facts that he knows)->

1. is IRRELEVANT to the existence of probable cause 2. The factors enunciated in Aguilar -> basis-of-knowledge and veracity - remain highly relevant in determining the value of an informants tip but are no longer treated as separate, independent requirements (even though test was changed in Gates) a. Basis-of-knowledge prong - is satisfied if the informant personally observed the reported facts. If the information was second-hand, the magistrate would need to ascertain the reliability of that source. In some circumstances, the basisof-knowledge prong could be satisfied by self-verifying detail, where the information provided by the informant was so rich in detail that it was reasonable to conclude that he had obtained it first-hand. b. Veracity prong: evidence was required to demonstrate either that the informant was a credible person (the credibility spur of the veracity prong) or, if that could not be shown, that his information in the specific case was reliable (the reliability spur). c. If one of the prongs was not satisfied, the hearsay evidence standing alone was deemed insufficiently trustworthy 3. Gates Holding: ->PC established, but the letter itself was NOT enough. (ill v. gates) i. The supplementary facts obtained by the independent investigation by the Police were required to satisfy probable cause. 4. Reasoning: a. Mr. Gates flight to west palm beach, his brief overnight stay in a motel, and apparent immediate return north to Chicago in the family car, conveniently awaiting him in West palm beach, is as suggestive of a prearranged drug run, as it is of an ordinary vacation trip. 1. In addition, the judge could rely on the anonymous letter, which had been corroborated by the polices efforts. b. The fact that the letter predicted so much accurately indicated, though not with certainty, that the informants other assertions were also true. i. b/c an informant is right about some thing, he is more probably right about other facts (spinelli case) 5. Facts: a. Anonymous letter sent to the bloomingdale police dept stating that i. Gates (D) and his wife were drug dealers and ii. Mrs. Gates will drive the family car to florida to be loaded with drugs and iii. for Mr. gates to then fly down, pick up the car, and drive it back to Illinois. iv. The letter gave the date May 3, but actual date was May 5

h. Notes: i. How probable is probable cause-> 1. The court has stated that the std does NOT demand any showing that such a belief be more likely true than false. ii. A sliding scale of probable cause-> 1. Hyperintrusive searches (i.e. taking a blood sample for drunk driving) requires a clear indication that in fact such evidence of intoxication will be found, because its a more obtrusive search-> i. One can interpret this latter language as perhaps, requiring probable cause plus, i.e. a heightened degree of likelihood of discovering evidence when the police wish to conduct such a hyperintrusive search (Schember v. Cali Sup ct. 1966) b. Indeed, in Winston v. lee (sup ct 1985) the police sought a warrant to compel a surgical intrusion into a suspects body in order to seize a bullet

that might incriminate him, the court stated-> i. when the state seeks to intrude upon an area in which our society recognizes a significantly heightened privacy interest, a more substantial justification is required, to authorize such a search. iii. Probable cause as an objective concept-> 1. Accd to supreme court, evenhanded law enforcement is best achieved by the application of OBJECTIVE stds of conduct, RATHER than stds that depend upon the subjective state of mind of the police officer. (Horton 1990 supt ct) a. Therefore, the supreme court has stated that an officers state of mind (except for facts that he knows) is IRRELEVANT to the existence of probable cause iv. Probable cause and ANTICIPATORY WARRANTS-> 1. An anticipatory warrant is a warrant based upon an affidavit showing probable cause that at some future time certain evidence of crime will be located at a specified place. a. Court found they are NO DIFFERENT from ordinary warrants they require the magistrate to determine 1. That it is now probable that 2. Contraband, evidence of a crime, or a fugitive will be on the described premises 3. When the warrant is executed. 2. For a conditioned anticipatory warrant to comply with the 4th amendment requirement of probable cause, two prerequisites of probability must be satisfied a. It must be true not only that if the triggering condition occurs, there is a fair probability that contraband or evidence of a crime will be found in a particular place, but ALSO b. That there is probable cause to believe the triggering condition will occur. i. The supporting affidavit must provide the magistrate with sufficient info to evaluate both aspects of the probable cause determination.

4. Arrest Warrants->
1. Probable Cause for an Arrest: (1) that an offense has been and (2) the person to be arrested committed it. a. Maryland v. Pringle (2003) probable cause is a fluid concept, incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. 2. General Rules: Upon probable cause that the suspect has committed or is committing a crime, a police officer: a. (1) may arrest a person in a public place without a warrant, even if it is practicable to secure one; b. (2) may NOT arrest a person in the persons home without an arrest warrant, absent exigent circumstances or valid consent; and c. (3) may not arrest a person in another persons home without a search warrant, absent exigent circumstances or valid consent 3. Exception for Arrest Warrants a. In Public dont need warrant (only for houses) United States v. Watson (1976) b. Exigent Circumstances (only objective intent) 1. (1) Hot pursuit (requires actual chase) 2. (2) Imminent risk of Destruction of evidence

3. (3) Need to prevent a suspects escape, OR 4. (4) Imminent danger to the police or other persons a. *If no warrant govt has BURDEN of proof to overcome the presumption of unreasonableness that attaches to all warrantless home entries b. Warrant issues aside, ALL ARRESTS, whether conducted in a PUBLIC place (Watson), OR made in a PRIVATE residence, must be supported by probable cause. (Payton) i. Rule: 4th Amend-> an arrest warrant implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. 1. HOWEVER, The fourth amendment PROHIBITS police, absent EXIGENT CIRCUMSTANCES, from making a warrantless AND nonconsensual entry into a suspects home to make a routine felony arrest. (Payton v. NY (Sup ct 1980) i. Payton ->state statutes allowed officers to enter private home if arresting for felony w/o warrant (held unconstitutional) 2. In the absence of exigent circumstances, we have held -> a. that officers subjective Probable cause determination is not reliable enough to justify searching of a home in the absence of a search warrant. i. (Steagald Sup ct 1981-> ARREST WARRANT did NOT allow officers to search and seize contraband in third partys home when his home was NOT mentioned in the arrest warrant & were looking for someone else) 3. Policy-> a. 4th amendment-> 2 separate clauses-> i. FIRST protecting the basic right to be free from unreasonable searches and seizures and 1. Unreasonable s&s conducted w/o a warrant are condemned by this clause 2. Basic 4th amendment law s&s inside a home w/o a warrant are presumptively unreasonable. 3. In terms that apply equally to seizures of property and of persons, 4th amendment had drawn a firm line at entrance of house absent exigent circ, that threshold may NOT be reasonably crossed w/o a warrant. ii. SECOND requiring that warrants be particular and supported by probable cause. 5. Executing an arrest: use of force-> fact based circumstances depend on whether a. The use of deadly force to prevent the escape of a fleeing felon is unreasonable UNLESS-> i. the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.

4. Search warrants->
5. Definition ->Probable cause exists when the circumstances within an officers personal knowledge, and about which he has reasonably trustworthy information, are sufficient to warrant a person of reasonable caution to believe that: a. Search: (1) that a crime has been committed and (2) the thing you are looking for is present at the specified premises at the specified time

i.

Rule: The general rule is that a search warrant is REQUIRED to search a person or property. 1. *You have GREATER protection for search than seizures under 4th a. i.e. they can seize you while they go get a warrant or exigent circ (i.e. hot pursuit)

6. Warrant: Did the police obtain a search warrant or arrest warrant? a. (1)If YES: several issues are raised-> i. Was the party issuing the warrant a neutral and detached magistrate? ii. Was the warrant in proper form: particularity requirement? iii. Did the magistrate issue the warrant on probable cause? iv. Did the police execute the warrant properly? b. (2)If NO: did the police have an adequate reason for not obtaining the warrant?->

Only if some special Exception applies will the requirement of a search warrant be dispensed with-> ii. The following are Exceptions to the warrant requirement for searches and arrests: 1. Search Incident to Arrest and Protective Sweeps California v. Chimel (1967); Maryland v. Buie (1990); Vale v. Louisiana (1970) 2. Searches at police station - Illinois v. Lafayette (1983); United States v. Edwards (1974); Schmerber v. California (1966); Cupp v. Murphy 3. Plain View Arizona v. Hicks (1987) 4. Automobile Exception California v. Carney; Maryland v. Dyson; California v. Acevedo (search of containers); Wyoming v. Houghton (search of belongs of passengers); Knowles v. Iowa (once the police write a traffic ticket, they cannot search the car) 5. Stop-and-Frisk Terry v. Ohio (1968) 6. Consent 7. Crime Scene Exception but no murder scene exception Mincey v. Arizona 8. Exigent Circumstances (only objective intent) i. (1) Hot pursuit (requires actual chase) ii. (2) Imminent risk of Destruction of evidence iii. (3) Need to prevent a suspects escape, OR iv. (4) Imminent danger to the police or other persons 1. *If no warrant govt has BURDEN of proof to overcome the presumption of unreasonableness that attaches to all warrantless home entries 9. Community caretaking (public safety concern) a. DISTINCTION is important b/c of Wren-> no subjective intent-> i. Exigent circ enforce law ii. Community caretaking make sure no one gets shot

i.

1. Probable cause is NOT exception to house warrant requirement c. Constitutional debate-> i. 4th amendment contains two clauses-> 1. the FIRST one, the reasonableness clause declares a right to be free from unreasonable searches and seizures of persons, houses, papers, and effects. 2. The SECOND one, the warrant clause -> sets out the requirements of any valid warrant (most especially, that it be supported by probable cause, and that it particularly describe the place to be searched, and the persons or things to be seized) ii. What is the relationship of these two clauses?-> 1. The TRADITIONAL POSITION Has led courts to say theres a search warrant req in the 4th amendment-> a. Searches conducted outside the judicial process, w/o prior approval by judge or magistrate, are PER SE unreasonable under the 4th amendment subject only to a few specifically established and well delineated exceptions. (Katz) i. Meaning you ALWAYS have to get a warrant UNLESS you cant, that 4th amendment is better served by officers who apply for warrants, rather than act on the basis of their own Probable Cause determinations 2. The COMPETING VIEW is that the proper 4th amendment test is not whether it is reasonable or practicable to procure a search warrant, BUT whether the search was reasonable. i. b/c test of 4th bars unreasonable s&s, nowhere does it state that warrants are required, ONLY that when warrants are sought they must meet certain specifications. b. Scholars too have long debated the relationship b/w the reasonableness and warrant clauses of the 4th amendment-> d. AMAR-> (Reasonableness Approach) i. Argued for reasonableness approach for 4th amendment. 1. That you look to see whether the search was reasonable. 2. Says the presumption that a warrant is always required is wrong b/c 4th amendment doesnt talk about that, it requires general reasonableness ii. Says there are two variants of the warrant requirement argument-> 1. A strict variant that insists that s&s ALWAYS require warrants, AND a. Makes no sense, b/c what about in cases of hot pursuit, crimes in progress, etc. 2. a looser variant that concedes the need to craft various common-sense exceptions to a strict warrant rule. BOTH FAIL a. this is to rewrite the 4th amendment . iii. Implication of this reduces important of warrants & we then need reasonableness 1. If its all reasonableness, maybe juries should have bigger roles in searches. e. MACLIN-> (Warrant requirement view) i. Amars wrong-> its about protection of citizen v. govt rather than reasonableness.

ii. This gives primacy to warrant approach b/c better protects from govt iii. The warrant clause defines and interprets the reasonableness clause-> 1. The warrant clause informs the judiciary of the type of search that is reasonable and therefore presumed permitted by the amendment a search that is consistent with the procedural safeguards of probable cause, particularity, and judicial scrutiny. iv. Points to writs of assistance-> 1. Docs used by colonial officials to justify searches (granted customs officers to force ppl around them to help search) 2. General warrant controversies in England a. all about reducing govt power/executive power v. An interpretation that detaches the reasonableness clause from the warrant clause runs the risk of making the warrant clause useless. f. Davies-> (does not believe historical record supports reasonable req) i. All modern 4th amendment jurisprudence is wrong - does not believe historical record supports reasonable req 1. Only concern framers had is that all searches and seizures be reasonable and to forbid the use of general warrants, which are too loose. ii. Framers saw no need for a constitutional std to regulate the warrantless officer b/c they did not perceive the warrantless officer as being capable of posing a significant threat to the security of a person or house, b/c the ex officio authority of the peace officer was still meager in 1789. 1. Therefore, they expected warrants would be used & believed the only threat to the right to be secure came from the possibility that too loose warrant might be used. th amendment does not say when an officer should be allowed to intrude iii. The 4 on the basis of his own judgment, or when he should be required to obtain prior approval from a judge. 1. Neither of the currently competing constructions of the 4th adheres to the historical meaning, though the warrant preference construction is more faithful to the framers concerns that the generalized reasonableness construction. 7.

Elements of a valid search warrant->

a. Warrants must meet constitutional specifications-> i. They must be based on PROBABLE CAUSE AND ii. Supported by OATH or AFFIRMATION b. Two OTHER requirements are considered here-> i. (1) A Neutral and detached magistrate requirement AND 1. Lo-Ji sales (1979)-> a. Town justice also went to store w/ 3 investigators, 3 officers, & 3 prosecutors b. Judges may NOT act as adjunct law enforcement officers i. Here, magistrate and police working together ii. Separation of power b/w executive and judicial issue ii. (2) Warrant particularity requirements 1. Rule: A search warrant must particularly describe the things to be seized, and may NOT be used to justify a general and open ended search of the premises. a. This requirement is intended to prevent general searches, the immediate evil that motivated the framing and adoption of the

4th amendment AND b. To prevent the seizure of one thing under a warrant describing another c. (Lo-Ji Sales-> Sup ct 1979 i. had a search warrant but it didnt list anything except 2 films, but gave authority to take similar things. ii. Magistrate makes determinations on spot, to take a lot of stuff, & then they put it ALL on the warrant after) iii. Professor Lafave has listed nine principles for particularity-> (only 4 in book) 1. Exception for objects hard to describe-> a. A relatively general description will be tolerated if the nature of the object to be seized could not realistically be described more specifically 2. Greater generality is allowed in the case of contraband 3. Similar items at site-> a. Greater specificity is demanded if other objects of the same general classification are likely to be found at the search site (i.e. cartons of womens clothing will not do if police will be searching a warehouse containing many cartons) AND 4. Scrupulous exactitude is demanded when the search encroaches on 1st amendment concerns, such as Lo-Ji sales. (adult porn store) 8.

Execution of a search warrant->

a. Knock and Announce Rule-> i. As a general rule, the officer executing the search warrant must announce that he is a law enforcement officer, that he possesses a warrant, and that he is there to execute it. 1. Therefore, a federal officer may break into a place to be searched ONLY if after notice of his authority and purpose, he is refused admittance. 2. Policy -> this requirement of an announcement derives from the 4th amendments ban on unreasonable searches-> a. Property may be destroyed b. May invoke violence by startling people b. EXCEPTIONS to Knock & Announce-> i. (1)Where theres threat of physical violence OR ii. (2)Where prisoner escapes from a cop and retreats to his dwelling OR iii. (3)Where theres reason to believe evidence would likely be destroyed if advance notice was given. (Kerr Dicta) OR iv. (4)Where it would be futile, or that it would inhibit the effective investigation of the crime. 1. Richards v. Wisconsin-> Sup ct. 1997-> a. An officer dressed as a maintenance worker knocked on richards hotel room door, while several plainclothes officers and one officer in uniform stood behind him. b. When Richards cracked the door open and saw the uniformed officer, he quickly slammed the door. 2. Issue: a. Was the evidence invalid b/c the officers failed to knock and announce their presence prior to forcibly entering the room?

3. Holding: a. No, Here, the circumstances clearly showed that the officers had a reasonable suspicion that Richards might have destroyed evidence if given further opportunity to do so, given the easily disposable nature of the drugs. (exigent circ) i. The reasonableness of the officers decision to enter richards hotel room must be evaluated as of the time they entered the room-> 1. The officers did NOT have evidence sufficient to justify a no knock warrant when they first obtained one, but once the door was slammed and the perp knew it was the police, it was clear the evidence could be easily dispensed with. c. PARTICULARITY REQUIREMENT ->SCOPE OF THE SEARCH-> 1. Executing a warrant AFTER entry-> a. Once officers are lawfully on premises to execute a warrant, various search principles apply i. FIRST, the police may ONLY search containers large enough to hold the criminal evidence for which they are searching. 1. i.e. if a warrant authorizes a search of a suspects bedroom for a stolen ring, the officer may, open dresser drawers, jewelry boxes, and other containers that could hold the ring. 2. On the OTHER hand, if they are searching a bedroom for a stolen 42 inch plasma tv, the police would not be authorized to open drawers or to open boxes smaller than the tv. ii. SECOND, while officers execute a search warrant, they MAY seize an object NOT described in the warrant, if they have PROBABLE CAUSE to believe it is a seizable item 1. i.e. plain view doctrine iii. THIRD, information that becomes available to officers immediately before or during the execution of a warrant may require them to cease or narrow their search, in spite of the dictates of the warrant 1. MD v. Garrison ->officers erroneously entered Garrisons premises; only after they discovered contraband did they realize it was the wrong apt they then ceased the search of Garrisons premises, but still sought to prosecute him on the evidence they found before they discovered their error. a. The court upheld the validity of the erroneous warrant and its execution-> i. We must judge the constitutionality of their conduct in light of the info available to them at the time they acted.

ii. If the officers had known, or should have known, that the third floor contained two apartments before they entered the living quarters on the third floor-> they would have been obligated to limit their search to mcwebbs apt. iii. Further, as the officers recognized, they were required to discontinue the search of respondents apt as soon as they discovered their mistake 2. Searching Persons during the execution of a warrant-> a. A warrant may authorize the search of a PERSON, but it should be EXPLICIT b. A warrant to search a home or other premises does NOT provide implicit authority to search persons found at the scene i. EVEN IF-> the criminal evidence for which the police are looking might be on them. c. HOWEVER, A warrant to search a residence for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. i. Search of a customer was NOT authorized-> 1. i.e. in Ybarra police obtained a valid warrant to search a tavern and the bartender for evidence of the offense of possession of a controlled substance. 2. While most officers searched the premises and bartender, one officer searched customers, and found heroin in a cigarette pack found on one. 3. Holding: Court held that the warrant did NOT authorize the search of the customer. a. *This does NOT mean that officers may NEVER search persons coincidentally at the scene during a warranted search-> i. HOWEVER, the police must have independent probable cause to search the person, ii. *as well as some justification for conducting the search w/o a warrant ->they must be able to point to an exception to the warrant requirement.

9. The warrant clause EXCEPTIONS TO WARRANT REQ?

a. According to Katz-> i. searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the 4th amendment subject only to a few specifically established and well delineated exceptions.

1. 4th amendment authorizes in public arrest based on nothing more than probable cause-> *but risk is if unlawful arrest can get exclusion of evidence a. but you have GREATER protection for search than seizures under 4th b. they can seize you while they go get a warrant or exigent circ (i.e. hot pursuit) c. or if they arrest you, & they must have probable cause to do so-> then they get SIA ii. Exceptions to warrant req-> 1. (1)Plainview 2. (2)Automobile (bc mobile) 3. (3)SIA (havent arrested yet so not here) 4. (4)Exigent circ (operating in tradl law enforcement context) 5. (5)Community caretaking (public safety concern) a. DISTINCTION is important b/c of Wren-> no subjective intent-> i. Exigent circ enforce law ii. Community caretaking make sure no one gets shot iii. Probable cause is NOT exception to house warrant requirement 6. (6)Stop & Frisk 7. (7)Consent

b. (1) Exception: Exigent Circumstances (only objective intent)

ii. iii. iv. v. vi. vii. (1) Hot pursuit (requires actual chase) (2) Imminent risk of Destruction of evidence (3) Need to prevent a suspects escape, OR (4) Imminent danger to the police or other persons 1. *If no warrant govt has BURDEN of proof to overcome the presumption of unreasonableness that attaches to all warrantless home entries Ignores subjective intent of police -> 1. 4th amendment searches ONLY looks at OBJECTIVE intent Just b/c exigent circumstances, scope & search must still be linked to what you found-> 1. Is seizure of jacket & trousers found in washing machine justified? YES! a. Accd to police, hes looking for man or money, but may have also been looking for the weapon. b. The search must be linked to imminent danger OR destruction of evidence Holding: Entrance w/o warrant & search w/o warrant was LEGAL due to exigent circumstances -> Danger (Warden v. Hayden->Sup ct 1967) a. An armed robber took money from a cab company in Baltimore, and then fled. b. Cops were informed an armed robbery had taken place and the suspect entered 2111 cocoa lane less than 5 minutes before they reached it. c. They acted reasonably when they entered the house and began to search for a man of the description they had been given AND for weapons which he had used in the robbery or might use against them or others. In spite of these exceptions, the sup ct has hesitated to give the police a free rein to enter a home w.o a warrant. 1. i.e. in Welsh v. Wisconsin (1984), police proceeded to Ws home and entered w/o consent or an arrest warrant, for someone suspected of drunk driving.

viii.

ix.

a. The sup ct found the warrantless entry was UNLAWFUL. b. physical entry of the home is the chief evil against the 4th amendment protects. c. here, the only exigency claimed by the state was the need to ascertain the petitioners blood alcohol level, and a warrantless home arrest cannot be upheld simply because evidence of the petitioners blood alcohol level might have dissipated while the police obtained a warrant. x. the murder scene exception-> 1. In mincey v. Arizona(1978) the sup ct rejected a murder scene warrant exception to the 4th amendment that the Arizona supreme court had recognized. i. We do NOT question the right of the police to respond to emergencies-> 1. Cases have found that 4th amendment does NOT bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. 2. Similarly, when the police come upon the scene of a homicide, they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. 3. And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. ii. BUT a warrantless search must be strictly circumscribed by the exigencies which justify its initiation, and it simply cannot be contended that this search was justified by any emergency threatening life or limb. a. All the injured persons in minceys apt had been located before the homicide officers arrived and began their search. b. Therefore, opening dresser drawers and ripping up carpets over a 4 day search CANNOT be rationalized in terms of the concerns that justify as an emergency search. xi. the emergency doctrine-> imminent danger-> 1. 3 officers came to a call to see party & see kid going nuts in kitchen from the backyard screen door. 2. The kid punched an adult in the face the officer then entered the kitchen and the altercation ceased. 3. The officers arrested the adults with contributing to the delinquency of a minor, disorderly conduct, and intoxication. 4. Court found-> a. Its a basic principle of 4th amendment that s&s inside a home w/o a warrant are presumptively unreasonable. b. Nevertheless, there are certain exceptions to this reasonableness-> i. One is the need to assist persons who are seriously injured or threatened with such injury. ii. Officers may enter a home w/o a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. c. The officers, had an objectively reasonable basis for believing the violence in the kitchen was just beginning. the role of an officer includes preventing violence and restoring order

d. Manner of entry was also reasonable, opened screen and yelled police! c. Community care taking function-> i. The emergency in mincey that justified the original warrantless entry by police was to look for injured persons. a. This emergency falls within a police depts community caretaking function as distinguished from its criminal law enforcement function. (i.e. hayden) ii. the strict rules relating to warrants and probable cause do NOT apply when the police are merely exercising their community caretaking function rather than investigating crime 1. Even though an exigency may justify a warrantless entry in either case, and the two functions can overlap, d. What if the Police create the exigent circumstances?-> i. Exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable, when the police do NOT gain entry to premises by means of an actual or threatened violation of the 4th amendment-> 1. Here, The officers did NOT violate or threaten to violate the 4th amendment, i.e. by announcing they would break down the door if the occupants did not open it voluntarily. 2. Kentucky v. King-> 2011 a. Officers arrived at wrong door-> i. They knocked very hard -> then yelled police! They heard rustling (sounds like concealing or destroying) b. Forced entry-> found drugs 2. SEARCHES

INCIDENT TO ARREST (exception to warrant req)

a. GENERAL PRINCIPLES->
1. Rule: SIA ->Exception to warrant req-> 1. REQUIRES lawful arrest 2. THEN automatically allows searching of PERSON ii. Two important things from Chimel -> 1. (1)Scope of authority limited to search Grabbing area but ALSO a. *Grabbing area moves, but case by case-> i. i.e. here, handcuffed & 12 ft away from closet -> cant search should get warrant 1. what if only 1 small cop> -> more leeway ii. what If youre walking by cabinet can grabbing area justify search of each individual drawer?-> 1. Yes, if all in grabbing area b. *CANNOT search whole house 2. (2)Instructs w/ searches of person-> a. Chimel gives authority to search person-> i. Even for things UNRELATED to crime-> 1. Pulled over for expired license -then searched his coat pocket and found a crumbled cigarette package containing heroin capsules (Robinson)

a. -> In the case of a lawful custodial arrest a full search of the person is a reasonable search under that Amendment b. Dissent (Robinson)-> Marshall says scope should be limited to justification i. Search incident to arrest is for-> 1. When safety is issue or 2. Evidence destroyed (NOT an issue here b/c officer holding package, so should get warrant) ii. Here, 3 distinct phases-> 1. patdown, 2. removal of object from pocket AND 3. opening of crumpled up cigarette package iii. Arrest inventories -> ANOTHER warrant exception 1. After Robinson was taken into custody, he had to be transported to the police station for booking. a. Any arrestee typically undergoes a second search an arrest inventory if she will be incarcerated, even temporarily, pending an appearance before a magistrate on the charges brought against her. b. Therefore, here even if the officer didnt search Robinson, he probably wouldve been searched, and although booking procedures vary, the police typically open containers found on arrestees, so once Robinsons arrest was made his fate was pretty much sealed.

b. SIA ->ARREST OF AUTOMOBILE OCCUPANTS->

a. Rule: Chimel-> basic theory of Chimel now applies to Automobiles i. police may search the passenger compartment of a vehicle incident to an occupants arrest ONLY -> 1. if the occupant MAY have access to the vehicle OR 2. if its reasonable to believe the vehicle contains evidence of the offense for which the occupant was arrested ii. (Gant applied Chimel to cars)-> Az v. Gant (2009 Sup ct) 1. Facts: Arrested for driving w/ suspended license valid arrest/cuffed a. Put in a locked police car-> i. Under Bolton & Thorton -> police can search passenger compartment b. Found cocaine in the pocket of his jacket in the back seat 2. Holding: Cannot search passenger compartment here b/c hes cuffed in police car & was arrested for driving w/ a suspended license, so vehicle would NOT contain addtl evidence related to the offense. b. Policy-> i. What if compartment locked?-> Prof thinks NO 1. Keep thinking about Chimel & thinking of -> a. Police safety & Destruction of evidence ii. SIA can closed trunk get searched? -> NO iii. Arrest based on violation of state law->*Lawful if have probable cause-> 1. An arrest based on probable cause although in violation of state law, is lawful for purposes of 4th amendment. 2. A search conducted as an incident of such an arrest, therefore, satisfies the 4th amendment rules discussed in this chapter. (VA v. Moore) -> Sup ct 2008

c. Pretextual stops and arrests (particularly in automobiles)

d. e. Pretext a reason/justification to stop and arrest that isnt real i.e. traffic violation-> Rule: 1. There is NO pretext exception to the general rule that police may make a warrantless stop of a vehicle when they have probable cause to believe that an offense has been committed. ii. Notes-> 1. Prof wren is cited as what officer thought subjectively doesnt matter, we wont regulate those matters. 2. Whren-> a. Stopped 4 black kids in car for traffic violation, but really because they thought they had drugs. b. They arrest D, and retrieve the drugs from the vehicle. c. Held: i. if the police have probable cause to believe that a traffic or other law has been broken, they may stop the perpetrator, ii. even if their motive is to seek evidence of some other crime for which they do not have probable cause or reasonable suspicion.

3-> Cars and containers (When are warrants required?)

1. CAR LAW NOW-> Exceptions to requirement of a search warrant-> a. (1)Exigent Circumstances-> i. (1) Hot pursuit (requires actual chase) ii. (2) Imminent risk of Destruction of evidence iii. (3) Need to prevent a suspects escape, OR iv. (4) Imminent danger to the police or other persons 1. The automobile exception to the warrant requirement applies to SOME motor homes. (case by case *mobility big factor) 2. Automobile exception premised on mobility. a. Case by case based on -> i. *Ready mobility (turn of ignition v. on blocks) ii. Location (trailer park v. walmart lot) iii. Connected to utilities? iv. Convenient access to roads? b. (2) LIMITATION ->Temporal/immediacy limit-> (coolidge) i. Car was in police custody for over a year, how was there an immediacy concern? -> shouldve gotten a warrant-> ii. Coolidge (Supt ct 1971) 1. Warrant-less automobile search 2. At the time of the arrest, the cars were seized w/o a warrant 3. one of them was searched and vacuumed for microscopic evidence two days later, again a year later, and a third time five months after that last search. 4. HOLDING-> a. Unconstitutional regardless of Probable Cause. 5. Reasoning-> a. Car was in police custody for over a year, how was there an immediacy concern? -> shouldve gotten a warrant b. There was no way the meaning and purpose of Carroll works here ->

i. ii. iii. iv.

No criminal bent on flight No fleeting opportunity in an open highway after a chase No contraband or stolen goods or weapons No co-criminals waiting to move the evidence C. In short, theres no reason the police couldnt have gotten a warrant here.

c. (3)SIA exception/all you need is arrest & then probable cause (Carrol-chambers-carney) i. Rule: Chimel-> basic theory of Chimel now applies to Automobiles ii. police may search the passenger compartment of a vehicle incident to an occupants arrest ONLY -> 1. if the occupant MAY have access to the vehicle OR 2. if its reasonable to believe the vehicle contains evidence of the offense for which the occupant was arrested a. *DESPITE the fact that, since the car was in police possession, a warrant could have been procured without endangering the preservation of evidence 3. CHAMBERS v. Marony (Sup ct 1970)-> a. Facts: Robbery suspect Chambers was found driving w/ 4 other men & arrested, and the station wagon was taken to the police station and searched-> b. There was no warrant search of the station wagon revealed evidence linking chambers with the crimes c. The materials taken from the station wagon were admitted into evidence 4. Holding: Search was legal 5. Reasoning: a. Special warrant exception for cars because theyre movable and ability to search may be fleeting b. Prof ->Concern for mobility here? -> i. NO, b/c already arrested & cars with police. d. (4)Inventory search after car seized in impound lot i. Govt looked in glove compartment & found pot after car towed for parking violations (opperman) 1. Holding: Allowed b/c of inventory procedures ii. Wells court did NOT allow opening locked suitcase in inventory search.

2. Containers -> found in plain view->

a. Suppose in an otherwise valid car search the police discover a closed container, such as a briefcase, an envelope, or paper bag-> i. May the police open the container as part of the car search, or must they seize it, take it to the police station, and then hold it while they apply for a search warrant? b. (1)Rule: The police may search an automobile and the containers within it where they have PROBABLE CAUSE to believe contraband or evidence is contained i. i.e. here, they could NOT search the entire car, only have probable cause to believe there was a bag in the trunk with pot. ii. Cali v. Acevedo (Sup ct 1991) -> 1. Cops saw someone leave an apt after buying drugs & threw in trunk 2. Fearing the loss of evidence, Officers stopped him and opened the trunk and the bag and found the pot. iii. Holding: Constitutional search. 1. Here, the cops had probable cause to believe there was pot inside the bag in the

trunk so they can search it, they would NOT have been allowed to search the whole car. c. (2)Rule #2 Others in car->: If police have probable cause to search car then can search any containers others are holding in car, even if lack probable cause to arrest them. i. may search any other passengers belongings found in the car that are capable of concealing the object of the search 1. Wyoming v. Haughton-> (1999) Found Syringe on driver and searched passengers purse. d. Hypos -> p. 290-> i. Hypo ii. #4b -> can keep looking if dont find pot in bag iii. #4c -> Ross says they can keep looking through trunk if find briefcase after not being able to find bag can look in briefcase & brown paper bag inside it ( b/c Ross-> if probable cause can open locked containers) iv. 4b -> police opened bag in trunk doesnt think its fine, once see paper bag & open it & see nothing should stop, especially if no other bags in trunk.

PLAIN VIEW (& TOUCH) DOCTRINES

1. The Plain View doctrine is often applied to allow police who are on premises for lawful purposes to make a warrantless seizure of evidence which they come across. a. If the police are within the permissible area of a search incident to arrest, they may seize evidence which falls into their view, even if the item itself is outside of the control area. b. Rules: i. (1)Officer must have lawful right of access to object AND 1. Horton-> Only got warrant to look for rings & cash, but only found guns a. Can look in any area where rings & cash could be, subjective intent that officer wanted to find guns does NOT matter. b. If locked in drawers would be ok b/c rings could be there c. If scanning visually room -> ok, plain view search ii. (2)Incriminating character of object immediately apparent (Need Probable cause) 1. Az. V Hicks-> a. No Probable cause-> i. stereo not incriminating at first appearance may be incongruous, but not probable cause so CANNOT move turntable to see stereo serial number (illegal search) b. Rule-> i. Physically moving a suspicious object in an individuals home to determine if it is incriminating evidence, w/o probable cause, during an unrelated warrantless search, is violative of the 4th amendment. c. Reasoning: i. The moving of the turntable constituted an invasion of privacy unrelated to the objectives of the search for the shooter ii. Although the movement was slight, the difference between looking at a suspicious object in plain view, and moving it even a few inches is more than trivial for purposes of the 4th amendment. iii. Without probable cause, the officer may not search beyond what is already exposed to view.

2. WHAT IS A SEIZURE OF PROPERTY?

a. 2 part standard for seizure-> i. (1)meaningful interference w/ ii. (2)individual possessory interest 1. hypo if put bumper sticker on car not meaningful interference iii. EXCEPTION-> 1. Consent a. Karo-> (agents cooperate w/ informant) i. Does the delivery of an electronic tracking device in a container of chemicals to a buyer without knowledge of the device violate the 4th amendment? ii. No, b/c-> 1. Had informants consent to put beeper in ether can. 2. b/c before Karo takes control of the ether, the informant and the DEA can do whatever they like with it. 3. although the monitoring of the device may have constituted a search, the mere transfer of the can to Karo did NOT. 4. Karos possessory interests were not meaningfully interfered with by the transfer, so no seizure occurred. iv. Arizona v. Hicks-> (Sup ct 1987) 1. Cop sees really nice stereo in crappy apartment 2. Moves turntable to see serial # (barely touches it then officer reports serial # & finds out its stolen & seizes it) a. No seizure ->Some interference but still not meaningful interference w/ possessory interest b. Notes: i. Hypo what if couldve gotten # without touching? -> OK ii. What structure applies -> what interest to protect? -> 1. Privacy or possessory -> PRIVACY, but not seizure even here iii. Katz says you need to hide info iv. Prof thinks looking around is a search but court doesnt

Consent -> It is well settled under the 4th and 14th amendments that a search conducted w/o a warrant is
per se unreasonable-> 1. EXCEPTION - > Consent (premise behind consent -free to choose yes or no) a. RULE: Consent must be VOLUNTARY-> Totality of circ-> i. Whether a consent to search was Voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances 1. Rule: HOWEVER Acquiescence to law enforcement is NOT consent ii. BUT - >*Def does NOT have to have knowledge that he can decline consent 1. Prof thinks we should have a knowingness req iii. *Once give consent can limit & revoke it-> 1. A search that starts out valid or consent can become invalid if police exceed the scope of consent a. Jimeno > i. consent to search car, & opened paper bag in car court said okay ii. but if it was locked briefcase not ok. b. Recent case-> i. Consent given for car, within scope to search laptop in car? -> court said ok

ii. Maybe if had password wouldve not been okay 2. What happens if Wife gives consent & husband does NOT-> Georgia v. Randolph (2006) a. Rule: A physically present co-occupants stated refusal to permit a warrantless entry renders the warrantless search -> i. unreasonable and invalid as to such co-occupant. b. Reasoning: i. (Matlock S. Ct. 9174) Wife in house, def in squad car b/c of police activity. Now in police interest to not ask consent until 1 person away ii. The record here reveals no indication the consenter indicated any need for her protection inside the house that might have justified a police entry into the area where the cocaine was found, 1. nor were there any exigent circumstances shown, such as entry to prevent evidence destruction. iii. This case has no bearing on the capacity of the police to protect victims of domestic violence. 1. The undoubted right of the police to enter premises to protect a victim is clear and not before the court. 3. Hypo a. If husband says no & I came back two hours & hes gone-> maybe can go in if waited long enough b. Roommates-> potentially can give consent to others room

E. Consent continued
1. Third party consent ->Rule: a. A warrantless entry is valid when based upon the consent of a third party who the police at the time of the entry reasonably believe has common authority over the premises. i. Common authority rests on mutual use of property by persons generally having joint access to the premises. 1. Court says theres an authority req for consent-> a. But NOT a matter of actual authority but b. Apparent authority, so if cops reasonably believe, its ok i. Court says reasonableness does not demand govt has to be actually correct (apparent authority is enough) ii. In order to satisfy the reasonableness std of the fourth amendment, it is not that the magistrate issuing a warrant or the police officer conducting a search always be correct, but that they always be reasonable. 1. Illinois v. Rodriguez (1990 Sup ct.)-> a. Facts: i. Cops showed up at mothers house of woman but took them to house of person whos responsible for beating her 1. & says I have a key you can come in, its our apartment. ii. D Wants suppression b/c she doesnt have right to consent, it was his apartment, shes not in lease, doesnt pay rent, had lived there once & took key w/o his knowledge b. Holding: i. Consent valid c. Notes: i. Exigent circ? -> b/c no warrant-> 1. Emergency? -> No, harms already done 2. Court says theres an AUTHORITY REQUIREMENT for consent a. But NOT a matter of actual authority but

b. Apparent authority, so if cops reasonably believe its ok i. Court says reasonableness does not demand govt has to be actually correct (apparent authority is enough) ii. *Reasonableness v. warrant req reading of 4th amendment d. apparent authority satisfied here?-> key, but she said she has clothes & furniture there-> why not say I live there? e. Court trying to say dont need to ask for deed or lease

E. The Reasonableness clause: The diminishing roles of warrants & probable cause-> 1. Terry transformed 4th amendment jurisprudence, and the result has been a significant 2.

3.

diminution in the role of the warrant clause in 4th amendment jurisprudence. Terry provided the impetus, as well as the framework, for a move by the supreme court away from the proposition that warrantless searches are per se unreasonable, to the competing view that the appropriate test of police conduct is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. Warrantless police conduct became much easier to justify after terry.

Stop & Frisk exception to Probable cause requirements-> 1. Right to stop-> a. Where a police officer observes unusual conduct which leads him reasonably to conclude that criminal activity is afoot, he may briefly detain the suspect in order to make inquiries b. Probable cause is NOT required reasonable suspicion, based on OBJECTIVE facts, that the individual is involved in criminal activity, will suffice. c. (the stop is a seizure under the 4th amendment, but it does NOT require probable cause, merely reasonably suspicion. 1.

SEIZURE/STOP-> stop and frisk can be carried out on the basis of ->reasonable
suspicion-> i. (1) *An officer can question an individual without any justification as long as the encounter remains voluntary -> ii. ->Once the encounter becomes a 4th amendment seizure, then the requirements that there be reasonable suspicion, that the D was engaged in criminal activity kicks in-> b. When is there a Seizure-> i. 3 diff seizure stds were articulated in Terry/mendenhall -> a. (1)When accosted & restrain freedom to walk away b. (2)Only when officer by means of physical force or authority restrains liberty. i. i.e. here, asks for names maybe shows not free to leave c. (3)Gives a third seizure std (in Mendenhall - >in addition to Terry) i. Totality of circ test-> We conclude a person is seized within the meaning of the 4th amendment ONLY if in view of all circumstances a reasonable person would believe theyre not free to go. ii. Mendenhall-> (1980 adds new seizure std in addition to Terry)

1. No seizure in initial approach before consent b/c no reason to believe she was coerced when approached. a. No force-> they gave back ID & ticket, she should be free to go (no seizure) iii. Florida v. Royer (1983 Sup ct)-> 1. Holding: probable cause to arrest Royer did not exist at the time he consented to the search of his luggage. 2. Mendenhall objective reasonable person totality of circ could leave? -> a. No, b/c until returned ticket cant leave, hes in middle of trip & cant go w/o them. b. Court doesnt see consent to go to office as free then. c. If Seizure, THEN was it lawful?-> 1. Rule: For police to lawfully stop, the police officer must reasonably suspect that the person stopped was engaged in criminal activity-> a. Objective std 2. Is there reasonable suspicion here?-> (if not then unlawful stop) a. Objective test is used-> i. Here, Terrys conduct (walking back and forth in front of store) was sufficiently suggestive of an intent to rob that Officers belief was reasonable ii. court places importance on nature of reasonable suspicion-> 1. the officer need not be certain the individual is armed issue is whether a reasonable man in the circ would be warranted in the belief that his safety or that of others was in danger 2. i.e. what if it isnt robbery but shoplift -> less reasonable to assume weapons. iii. Mendenhall ->Prof thinks RS tough to sustain here -> 1. Must think about what agent saw when person got off plane a. (here, not much) 2. Says if court willing to say if meet profile of criminal/smuggler (prof thinks hard to do b/c all they know b4 take ID looks suspicious) 3. *Converting Reasonable Suspicion into an arrest-> a. May the police leap-frog from a Terry seizure based on reasonable suspicion into an arrest by simply asking the seized individual for her name and, if she refuses to answer, arresting her for that failure? b. YES, if a state enacts a law requiring a properly detained individual to identify herself to the police. c. Sup ct->Our decisions make clear that questions concerning a suspects identity are a routine and accepted part of many Terry stops. 4. Obtaining a suspects name in the course of a Terry stop serves important government interests 5. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder.

d. If lawful seizure-> then can search?->

2.

SEARCH/FRISK- >*Is frisk authority automatic? -> NO -> Terry->

a. Rule: For police to lawfully go from a stop to a-> frisk the police officer must reasonably suspect that the person stopped is armed & dangerous. b. 2 requirements for constitutional SEARCH/FRISK-> i. (1)reasonable inquiry first -> 1. Question-> has officer attempted to extract enough information to dispel his reasonable fear for his own or others safety? 2. if YES, b/c reasonably suspects criminal activity then can move to #2-> a. Terry-> i. Men kept looking at store window going back and forth (No prob cause yet) ii. Officer approaches them & asks for ID, when answers seems evasive-> spins terry around and rubbed his hand around the outside of his coat and felt a gun, took it and ordered them against the wall iii. Seizure here comes first (stopped when grabbed now cant leave) ii. (2)carefully limited search of outer clothing (frisk) 1. *terry frisk is limited to a search for weapons & safety of officer or others, destruction of evidence is NOT enough* a. note #11-> frisk has to be limited, b/c court allowing less search -> i. police can pat down, but not go further UNLESS pat down creates reasonable suspicion. iii. (3)Finally, in order to determine reasonableness-> 1. Balancing test-> a. Must balance the need to intrude (i.e. to prevent and detect crime, and to protect officer from physical harm) against b. Severity of the intrusion i. Terry->This court believes that a proper balance b/w these interests is struck by a rule allowing the minimally instrusive stop and frisk for weapons when a officer suspects, on an OBJECTIVE level, that a person may be armed & dangerous-> 1. Here, the search was no broader than necessary to find any weapons-> a. No pockets containing hard objects were examined, and b. Nothing more than a pat down was given to one of the other suspects who was not carrying anything that felt like a weapon.

a. Terry, in holding that a 4th amendment seizure might sometimes be permissible on less than probable cause, spoke ONLY of on-the-street encounters. (Stop & Frisks) a. If the suspect is required to come to the police station, the Terry rationale will NOT apply b. The line dividing a Terry-like stop from an intrusion is so severe that the full protection of the 4th amendment is triggered, its crossed when the police w/o PC or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, for investigative purposes->

1. Drawing lines: Terry seizures vs. de facto arrests

2. It is unclear how long the suspect can be detained and how intrusive the investigation can be, before the stop turns into a full-scale arrest requiring probable cause-> a. Rule: Probable cause is necessary for a station house detention accompanied by interrogation, even if no formal arrest is made-> i. Thus, in Dunaway, the D was asked, & consented, to come to police HQ, where he received his Miranda warnings, BUT was not told he was under arrest, nor was he booked. 1. Holding: ARRESTED, b/c of subjective intent of officers that he wasnt able to leave, but couldnt arrest b/c no PC therefore unconstitutional seizure. a. *Dissent-> i. All consent based so maj wrong b/c if key fact is officers subjective intent that doesnt follow 4th jurisprudence 2. Rule: a. Under the 4th amendment, a seizure and transport of a suspect against his will is sufficiently intrusive to require probable cause that the suspect has committed a crime. b. Notes-> i. Dunaway (STILL GOOD LAW) but correct? (b/c of subjective intent issue) ii. #4 Penn v. Mimms 1. Rule-> a. officers allowed to order driver out of car during valid traffic stop regardless of suspicion. 2. Reasoning-> de-minimis issue getting out of car. iii. Maryland v. Wilson-> 1. Rule-> a. Extends same rule, but applies to passengers. Also w/o suspicion. iv. #5-> 1. U.S. v. Sharp-> a. LENGTH of seizure at issue -> i. Court approved 20 min traffic stop.

3. Drawing lines: seizure versus non seizure encounters

a. Airport case seizures-> i. Gives a third seizure std (in Mendenhall - >in addition to Terry) 1. Totality of circ test-> We conclude a person is seized within the meaning of the 4th amendment ONLY if in view of all circumstances a reasonable person would believe theyre not free to go. a. Mendenhall-> (1980 adds new seizure std in addition to Terry) i. No seizure in initial approach before consent b/c no reason to believe she was coerced when approached.

1. No force-> they gave back ID & ticket, she should be free to go (no seizure) ii. Facts: 1. Then they return drivers license & ticket, then they ask her to come with them-> she gives no verbal response, but goes with them 2. They ask to search her & purse (tell her she can say no) 3. She says go ahead they find another airline ticket in another name 4. Then they search her & find heroine b. *Distinguishes Dunaway because public area/concourse c. Florida v. Royer (1983 Sup ct)-> i. asks for license & ticket, he gives, but they never return them ii. they find out tickets were under aliases, & inform him theyre DEA & ask for consent to come to office, he follows w/o saying anything iii. They take his luggage & ask for consent to search it he gives iv. Drugs were found in that suitcase d. Issue: i. Was Royer illegally detained/seized at the time of his purported consent to search his luggage? e. Holding: Yes, probable cause to arrest Royer did not exist at the time he consented to the search of his luggage. i. The facts are that a nervous young man with two American Tourister bags paid cash for an airline ticket to a target city. ii. We cannot agree that every nervous young man paying cash for a ticket to NYC under an assumed name and carrying two heavy American Tourister bags may be arrested and held to answer for a serious felony charge. f. Reasoning: i. Mendenhall objective reasonable person totality of circ could leave? -> 1. No, b/c until returned ticket cant leave, hes in middle of trip & cant go w/o them. ii. Court doesnt see consent to go to office as free then. iii. The officers also, without consent, took his checked luggage and he was never informed he was free to board the plane. iv. Royers ticket and ID remained in the possession of the officers throughout the encounter v. The officers also seized and has possession of his luggage-> 1. He could not leave the airport w/o them. vi. In Mendenhall, no luggage was involved, the ticket and ID were immediately returned, and the officers were careful to advise that the suspect could decline the search.

Drawing Lines: Seizure versus non-seizure encounters (continued)-> 1. Bus seizures?-> a. RULE:-> The proper inquiry is whether a reasonable person would feel free to decline the
officers requests or otherwise terminate the encounter. i. New test isnt so tied to movement as much as freedom of choice.

ii. Drayton -> 1. Asked for consent to search before search shouldve shown free to leave 2. No application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, etc. 3. plainclothes maybe less authority? In past experience officer said ppl felt free to move (only 5-6 ppl though) 4. On the other hand-> a. 3 officers i. tight space on bus ii. driver ceded control of bus iii. plainclothes maybe less authority? In past experience officer said ppl felt free to move (only 5-6 ppl though)

2. Seizures while in Pursuit?->

a. Hodari-> i. Rule: Where a show of authority is made to a suspect, and the suspect does not submit, NO seizure takes place 1. ->In order to have a seizure for 4th amendment, there must be an actual application of force upon him or he submits to police authority. 2. An arrest requires either physical force or, where that is absent, submission to the assertion of authority. 3. Hodari-> Officer came upon Hodari and he started running and threw crack away a. he moved to suppress the evidence that it was obtained in an unlawful seizure, b.c he was seized as soon as officer began chase (since at that point, D realized he was not free to leave) i. therefore, D argues the drugs were the fruit of a seizure, and the evidence should be excluded b/c the officer lacked RS to make the seizure. b. Holding: see above. 4. Reasoning a. The 4th amendment protects against unlawful seizure b. seizure, when applied to the person, as it must be in the context of arrest, can only refer to physical restraint c. the term seizure, implies some form of custody or control. d. Consequently, any evidence found prior to such custody or control cannot be said to be the fruit of an illegal seizure. 1. Reasonable suspicion (substance of 4th amendment diminishing roles of warrants) a. Brendlin-> Sup ct. 2007 i. What happens when private car (taxi) pulled over?-> 1. Everyone in car is seized, but limits holding to private cars NOT things like busses

2. CAR SEIZURES-> stop & frisk doctrine also may apply to allow an officer to order the stop of a vehicle. a.
Here, according to Brendlin, for the duration of a traffic stop, a police officer effectively seizes everyone in the vehicle, the driver and all passengers. i. (1) Therefore, first Terry condition is met->

(this is met, based on Terry, when the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense.) 2. here, a license plate check revealed that the vehicles registration had been suspended for an insurance related violation. 3. Asked to get out of car & agrees 4. Proper to think-> a. What is the scope of authority that comes along w/ initial seizure? i. Should restrict to only investigation about stop? 1. No, the seizure from original stop isnt limited by anything other than reasonableness, but cant measurably extend investigation (Mena-> 3 hours) ii. (2) To justify a patdown of the driver or a passenger, however, just as in the case of a pedestrian reasonably suspected of criminal activity-> 1. the police must harbor reasonable suspicion that the person subjected to the frisk is armed & dangerous a. Here, one of the passengers was wearing gang colors, i. had a police scanner on him -> 1. which struck the officer as unusual b/c most ppl wouldnt have that unless they were going to conduct criminal activity. b. Also said hes from gang area & served time in prison for burglary and had been out for a year. c. Therefore, she asked him out of the car & started to pat him down and felt the butt of a gun near his waisthe then started to struggle, so she placed him in cuffs. 3. Anonymous TIPS & REASONABLE SUSPICION-> a. Reasonable suspicion, like probable cause, is dependent upon BOTH-> i. the CONTENT of information possessed by police AND ii. its degree of RELIABILITY as determined by 1. the Totality of Circumstances test. iii. *the only difference is that the level of suspicion required to establish RS is less than that required to establish probable cause. iv. Alabama v. White (1990 Sup ct) 1. Officer Davis received an anonymous tip stating Vanessa White would a. leave 235-C apt a particular time later that day b. in a brown Plymouth station wagon with a broken right tail light, c. that she would drive to Dobeys motel, and d. that she would be in possession of a brown attach case containing cocaine. 2. Davis saw White (D) leave the building empty-handed, enter the described station wagon, and drive by a route involving many turns to Dobeys Motel. 3. Davis stopped the vehicle just short of the motel. a. Pursuant to a consensual search, weed was discovered in a brown attach case in the car. b. Cocaine was later found in Whites purse. 4. Reasoning: a. Although this is a close case, the range of details actually corroborated by the officers imparted some degree of reliability to the informants other allegations. b. The totality of these facts established the requisite reasonable suspicion to

1.

v. Notes: 1. Terry case (reasonable suspicion) a. In order to justify stop need RS AT TIME STOPPED (otherwise rest is tainted) b. But whats suspicious of what shes doing -> nothing -> prediction of behavior only 2. Illinois v. Gates-> a. Totality of circ test, i. But since lower threshold quality of info can be lower, Not based on PC, but RS at time of stop. Assignment #16-> 1. Reasonable Suspicion continued-> a. Flight as a justification for Reasonable Suspicion-> a. Rule: Flight from police is sufficient to support a finding of reasonable suspicion and to justify a police officers further investigation. b. Nature of high crime area is another important factor (but does NOT by itself create RS) a. Court seems to be saying its okay if innocent people get stopped, its up to police to use their discretion, and that this case gels with Royer-> i. where court said people are allowed to ignore police and go about their business, but that unprovoked flight is NOT going about ones business b. Illinois v. Wardlow ->Sup ct 2000 i. Two officers observed Wardlow standing next to a building holding a bag. ii. When he saw the officers, he fled. iii. They caught up to him and conducted a pat down for weapons, and felt a hard object and opened the bag to find a gun.

stop White. i. The callers ability to predict Whites future behavior demonstrated the possession of inside information, in this case Whites itinerary, normally restricted to a small number of people.

2. Extending the Terry doctrine->

a. SIA in a home-> i. Rule: After an arrest is made in residence, a search of the house for accomplices requires articulable facts/Reasonable Suspicion warranting a belief that the presence of an accomplice is likely. ii. Protective sweep-> (once arrest ->get automatic search of person & grabbing area SIA) a. Officers are allowed w/o probable cause or reasonable suspicion, to look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. a. **BROADER THAN Grabbing area/chimel b/c there can only look in smaller spaces for things that arrestee can grab b. HOWEVER, a protective sweep does NOT justify a full search of the premises, and a. there must be a reasonable articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene in order to

have justification to keep searching after they have arrested their target. iii. Maryland v. Buie (Sup ct 1990) a. An officer yelled for anyone in the basement to come out, Buie did and was arrested. b. An officer, who then descended into the basement to check for possible accomplices, instead found a red running suit. c. Reasoning: a. Here, that Buie offered no resistance when he emerged from the basement is somewhat inconsistent with the hypothesis that the danger of an attack by a hidden accomplice persisted after the arrest.

b. Seizure of property->
a. US v. Place Sup Ct 1983-> 90 minutes too long to seize here, b/c were informed ahead of time about passenger & shouldve made arrangements a. Balancing test-> i. (1) Govt interest-> We examine first the govt interest offered as a justification for a brief seizure of luggage from the suspects custody for the purpose of pursuing a limited course of investigation. 1. Holding: where the authorities possess specific and articulable facts warranting a reasonable belief that a travelers luggage contains drugs-> a. the govt interest in seizing the luggage briefly to pursue further investigation is substantial. b. Here, dog reacted positively to one of the bags i. this was about 90 minutes after initial seizure ii. B/c it was late in the afternoon on Friday, the agents held the bags until Monday morning, then the judge issued a warrant to search one bag, and they found a large quantity of cocaine. ii. (2) Persons interest -> HOWEVER, Against this strong interest, we must weigh the nature and extent of the intrusion upon the individuals fourth amendment rights when the police briefly detain luggage for limited investigative purposes-> 1. The LENGTH of the detention of respondents luggage alone PRECLUDES the conclusion that the seizure was reasonable in the absence of probable cause. a. *Here, 90 minutes* iii. Brevity is important in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion-> 1. In assessing the effect of the length of the detention, we take into account whether the police diligently pursue their investigation 2. We note that here the NY agents had ample time to arrange for their addtl investigation at that location, and thereby could have minimized the intrusion on respondents 4th amendments interests-> b/c were told about passenger ahead of time

3.

Warrantless Car Searches-> (Michigan v. Long Sup ct 1983)

a. Suppose the police conduct a lawful Terry stop of a driver-> i. May the police, search the car to protect themselves from possible weapons that might be hidden inside?-> a. YES, if-> a. (1) reasonably believe, based on specific and articulable facts that he is dangerous and may gain immediate control of weapons if these are in the car AND b. (2) they look only in those parts of the passenger compartment where weapons might be placed or hidden b. Long was stopped b/c was swerving and while officers followed him back to car, saw a large hunting knife on the floorboard of the drivers side of the car. a. The officers then stopped long from moving closer to the car & shone his flashlight into the car to search for other weapons saw something protruding from armrest saw an open pouch on front seat-> was drugs c. Reasoning: a. The search was restricted to those areas to which Long would have immediate control, and that could contain a weapon, it is clear the intrusion was strictly circumscribed by the exigencies which justified its initiation.

Substance of 4th amendment diminishing roles of warrants-> 4. Reasonableness in a special needs (and non criminal) context->
a. It is necessary to draw a distinction b/w -> i. searches and seizures conducted by police, and other public officials, in furtherance of their criminal law enforcement responsibilities AND ii. S&S conducted by police and others in furtherance of community caretaking-> a. Or more generally, non law enforcement purposes.

b. Special needs exception to warrant req-> i.

Rule:

a. b. c.

Criteria of impracticability to comply w/ warrant clause in this context (i.e. checkpoints) Special need not tradl criminal law enforcement (i.e. public safety) Balance govt interest v. private interest a. *Must answer all yes to be lawful under 4th amendment

ii. Part of a still developing understanding by the high court that the warrant clause has no meaningful role to play in the non criminal law enforcement context. c. Administrative searches-> i. Administrative search-> a. i.e. when an automobile must be towed as the result of illegal parking, the police may routinely inspect the contents of the car, NOT as part of a criminal investigation, but simply to make sure that belongings are properly inventoried for safekeeping and other purposes.

ii. South Dakota v. opperman (1976 sup ct)-> Special needs exception to warrant-> a. Held that b/c such inventories are not criminal investigations, the warrant clause including the probable cause requirement do NOT apply. b. The reasonableness clause ALONE, must be considered, and the court held that-> a. the police may inventory automobiles under specified circumstances in the absence of probable cause OR EVEN reasonable suspicion. iii. The court has approved warrantless administrative searches of closely govt regulated industries-> a. NY v. Burger- Sup ct 1987-> a. b/c the owner or operator of commercial premises in a closely regulated industry has a reduced expectation of privacy, the warrant and probable cause requirements, have lessened application in this context-> iv. Birth of special needs doctrine-> a. NJ v. TLO->Principal opened students purse and found evidence of marijuana sales. b. Court held that public school teachers and administrators may search students w/o warrant if -> 2 conditions-> a. There are reasonable grounds not necessarily PC in the criminal law context for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school AND b. Once initiated, the search is not excessively intrusive in light of the age and sex of the student and the nature of the infraction. v. LIMITATIONS of special needs search-> a. Strip search of 13 yr old student forced to remove underpants and bra by officials who had RS to think she brought prescription and over the counter drugs to school. b. Court said violated reasonableness as stated in TLO case. a. Here, the content of the suspicion failed to match the degree of intrusion-> i. The principal who ordered the search knew beforehand that the pills were prescription strength ibuprofen and over the counter naxproxen, common pain relievers equivalent to two Advil or one Aleve. b. What was missing here was any indication of danger to the students from the power of the drugs.

d. Border searches->
i. Special rules apply in the intl border context (i.e. airport where intl flight arrives) ii. No Warrant req or individual suspicion-> At the border, a person may be stopped and seized and her belongings searched w/o warrant and in the absence of individualized suspicion of wrongdoing-> a. pursuant to the longstanding right of the sovereign to protect itself from the entry of persons and things dangerous to the nation. iii. The law of border searches is somewhat more complicated away from the border-> a. Particularly on highways in the vicinity of the Mexican border, where fed agents stop vehicles to question occupants regarding their citizenship. iv. Court has distinguished b/w-> a. Roving border patrols (where agents stop a car w/o notice on a little traveled road) AND a. Sup ct has determined that agents need RS of criminal activity to detain the car occupants briefly.

b. Delaware v. prouse-> ROVING BORDER PATROLS-> i. Stopping an automobile and detaining the driver in order to check his drivers license and the registration of the automobile are unreasonable under the 4th Amendment. b. Fixed interior checkpoint (a permanent stop along a well traveled highway) a. HOWEVER, the court has ruled that vehicle occupants may be stopped for questioning at fixed interior checkpoints WITHOUT individualized suspicion of wrongdoing. b. Legal Checkpoint -> highway sobriety tests i. Sitz ->A states use of highway sobriety checkpoints does NOT violate the 4th and 14th amendments. 1. (1)Impractical to ask all for warrant-> a. If signs were detected, officer would check the drivers license & registration, and if warranted, would conduct further sobriety tests b. If tests indicated intoxication, driver would be arrested. 2. (2)Special need-> Public safety a. No one can dispute the magnitude of the drunken driving problem and the states interest in stopping it. b. Conversely, the measure of intrusion on motorists stopped briefly at sobriety checkpoints is slight. 3. (3) The BALANCE of the states interest-> a. in preventing drunken driving, the extent to which this system can reasonably be said to advance this interest, b. and the degree of intrusion upon individual motorists who are briefly stopped weighs in favor of the state program. c. ILLEGAL checkpoint-> Narcotics checks-> i. (1)Impractical to ask all for warrant-> 1. The officer approaches the vehicle, advises driver of the checkpoint 2. Officer looks for signs of impairment and conducts open view exam of the vehicle from the outside. 3. A narcotics detection dog walks around the outside of each stopped vehicle. 4. Officers may conduct a search only by consent or based on the appropriate quantum of particularized suspicion. ii. (2) Special need-> NONE, other than ordinary criminal law enforcement SO NOT OKAY 1. Difference in cases is their PRIMARY PURPOSE 2. NONE of our cases indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. 3. b/c the primary purpose of the program was indistinguishable form its general interest in crime control, the checkpoints violated the 4th amendment. d. Illegal checkpoint Proust ->

i. Just to check ID & Registration & not in a fixed way, choose randomly v. Distinction-> Court distinguished fixed checkpoints from roving patrols on TWO grounds> a. First, the subjective intrusion on the security of lawful travelers their fear and surprise level is appreciably less in the case of a fixed checkpoint stop b. Second, agents at fixed checkpoints have less discretionary enforcement authority than roving agents: the location of the checkpoint is fixed, and they may only stop those that pass through it. 5. Notes: a. #4-> Drug Testing-> i. Suspicion-less drug tests (by urinalysis, breathalyzer or blood) has been upheld by the Sup ct in various circumstances: a. Ie drug testing of railroad personnel involved in train accidents b. Random drug testing of federal customs officers who carry weapons or involved in drug interdiction and c. Random urine testing of school students involved in athletics, or other extracurricular activities ii. In drug testing cases, the court considers the nature and immediacy of the govts concerns regarding drug use. a. In some cases, the court has found a compelling, substantial, or important govt or societal need for drug testing that could not be accommodated by application of ordinary probable cause or reasonable suspicion standards. a. i.e. Skinner, evidence was introduced that there was a link b/w drug and alcohol use by railroad employees and train accidents. iii. Weighed against the interest in random drug testing is the privacy interest of those subjected to the testing. a. Skinner court concluded that the bodily intrusion involved in blood testing is minimal; and breath testing is less intrusive stile. As for urine testing, the justices agreed that the excretory function traditionally is shielded by great privacy. b. Also important was the fact that with the employees, their expectation of privacy was diminished by reason of their participation in an industry regulated pervasively to ensure safety. iv. NOT all suspicionless drug testing is allowed-> a. 4th amendment shields society from urinalysis drug testing that dimishes personal privacy solely for a symbols sake. a. i.e. In Chandler v. Miller, Sup ct rule that georgias req that candidates for state office pass a drug test did NOT fit within permissible suspicionless searches b/c i. law was not passed in response to any suspicion ii. b/c test date was no secret, drug taking candidate could abstain for a pretest period sufficient to avoid detection. iii. (re: statute that required candidates to submit to urinalysis within 30 days prior to qualifying to nomination or election. b. What if reason for the testing is, to promote enforcement of criminal laws-> i. And is it relevant to the legitimacy of drug testing that law enforcement officials are involved in the testing process? a. In ferguson - > a. Difficult analytically to decide what will happen b. Nurse got concerned too many pregnant drug addicts, so set up system for

drug testing pregnant women who came in. c. Police coordinated w/ prosecutor & lawyer-> i. If positive result, given warning ii. Hospital is civil entity/informer 1. Dont have to go to this hospital 2. But cooperating with cops 3. Criminal or civil search-> a. CRIMINAL -> i. Too much like criminal b/c cooperation not a special need beyond traditional law enforcement.

1. Remedies for fourth amendment violations

a. The Exclusionary rule
i. Exclusionary rule: forbids evidence gathered in violation of 4th amendment to be admissible in court 1. The exclusionary rule narrows the scope of the 4th amendment 4th amendment has little effect if there is no remedy for the violation 2. Exclusionary rule only applies to evidence obtained from unconstitutional seizure illegal arrest does not void a subsequent conviction ii. Exclusionary rule SHOULD apply-> LEON-> 1. If police mislead or lie to judge 2. Judge abandons judicial role 3. Affidavit lacks sufficiency for PC 4. Warrant so facially deficient officers cant think its valid

iii. Its history-> 1. Imagine federal law officers, w/o good cause & w/o a search warrant, enter your home w/o permission and search for evidence of a crime. a. *note, the provisions of the bill of rights, including the 4th amendment, only limit the conduct of agents of the federal, as distinguished from state and local, govt. b. State & local police are limited by the 14th amendment due process clause. 2. What is your remedy for violation of your rights? a. Weeks v. U.S. (Sup ct 1914)-> Adopts exclusion as available remedy but ONLY for violations caused by federal actors iv. Extending it to the states the nature of the rule: Mapp v. Ohio 1. Wolf v. Colorado-> Sup ct 1949-> (OVERTURNED BY MAPP) a. the Supreme Court recognized that a remedy for illegal police searches was required, but it failed to require states to implement the exclusionary rule. Pertinently, the exclusionary rule was never broadly enforced at the state level until the decision in Mapp v. Ohio 2. MAPP v. Ohio-> Sup ct 1961 - - the exclusionary rule applies to states via the Due Process Clause; therefore, the states cannot use evidence gained by illegal means to convict

v. Should the rule be abolished?

1. Rule is criticized on various grounds a. One dispute relates to the question of whether there is an historical

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3. 4. 5. 6. Assignment #19 a.

foundation for the exclusionary rule most debate, however, has focused on the deterrence rational of the rule-> i. Does exclusion of evidence deter govt misconduct? Does the exclusionary rule deter constitutional violations?-> a. Some say - >Exclusionary rule does not and cannot function as a meaningful deterrent-> i. Most violations of the 4th amendment occur at its edges: officer in good faith misunderstands a complex 4th amendment rule or interprets the facts regarding a search or seizure differently than a court does. ii. Those who knowingly violate 4th can theoretically be deterred, but the exclusionary rule is too indirect and attenuated a form of punishment to do the job adequately. 1. Many defense lawyers plea bargain rather than litigate. b. Some say-> systemic deterrence is the primary goal of the exclusionary rule i. Meant to deter unconstitutional police conduct by promoting professionalism within the ranks, specifically by creating an incentive for police departments to hire individuals sensitive to civil liberties, to better train officer in the proper use of force, etc. ii. Further, search warrants were sought more often after Mapp. Is the rule worth its cost? a. Hard to say what the costs are Protects the wrong people?-> a. Deflects the truthfinding process by excluding reliable evidence. Rule promotes cynicism -> treats a criminal def as a surrogate for the larger public interest Rule results in disproportionate punishment-> a. Penalty for violation of the 4th is disproportionate to the crime.

EXCEPTIONS to the Exclusionary Rule -> When the exclusionary rule does not apply
a. In general-> i. Exclusionary rule does NOT apply in various categories of circumstances 1. i.e. in a civil proceeding, federal or state ii. exclusionary rule does not even apply in all criminal proceedings 1. i.e. GRAND JURY PROCEEDINGS (US. V. Calandra) 2. But theres more -> circ where exclusionary rule does NOT apply at criminal trials> a. Prosecutor may impeach a def testimony by introducing evidence previously excluded on 4th amendment grounds if they testify to the contrary b/c then they try to turn it to their advantage that evidence cant be used iii. There are also times when evidence obtained as a result of a 4th amendment violation may be used against a D-> b. (1) The GOOD FAITH Exception & invalid warrants-> i. The 4th amendment exclusionary rule does NOT bar the use of evidence obtained by officers acting in (OBJECTIVE) good faith if reasonable reliance on a facially valid search warrant is ultimately found to be unsupported by PC->

1. Policy for rule -> deterrence ->*if exclusion of evidence obtained unlawfully is to have any deterrent effect, therefore, it must alter the behavior of individual law enforcement officers or the policies of their departments. 2. US v. Leon-> (Sup ct 1984) a. Court allowed evidence in/3 Good faith exceptions to exclusionary rule-> i. Leon-> 1. Burbank police obtained a facially valid search warrant to search Leons premises for narcotics. 2. The info in the supporting affidavit was obtained from a confidential informant whose credibility and reliability were not substantiated. 3. The police found narcotics, and Leon was charged. ii. Mass v. Shepherd -> 1. Judge told officer warrant was good when it wasnt 2. Court said objectively he was reasonable in trusting judge and didnt have to examine it himself iii. Herring-> 1. Officer thought there was an active arrest warrant for Herrings failure to appear on a felony charge. a. They arrested him and found drugs and a gun 2. But later found out that the warrant had been rescinded and was NOT active, it was a mistake a. To trigger the exclusionary rule, police conduct must be sufficiently deliberate (objectively) that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth he price paid by the justice system. b. Court did NOT allow evidence in/good faith exception-> i. In CONTRAST -> Groh-> 1. The warrant failed to specify the items to be seized, only described the house, but still a judge signed it. 2. Officers didnt find what they were looking for a. Court found a violation b/c warrant Failed to comply with the particularity req of the 4th amendment. c. (2)The knock and announce violations-> i. does NOT give exclusion-> K&A rule Never purported to protect ones interest in preventing the govt from seeing or taking evidence described in a warrant. ii. Requirement of an announcement derives from 4th amendments ban on unreasonable searches - > 1. Reasoning: a. The purpose of knock and announce is to protect police officers from surprising residents who might retaliate in presumed self defense, to protect private property from damage, and to protect privacy and dignity of residents.

Scope of the exclusionary rule: the fruit of the poisonous tree doctrine->
a. FRUIT OF THE POISONOUS TREE DOCTRINE-> i. Rule: The doctrine that evidence obtained illegally shall NOT be used for the purpose of gaining other evidence, is popularly called the fruits of the poisonous

tree doctrine. 1. (DERIVATIVE EVIDENCE-> i.e. illegal search conducted and the defendants diary is seized, the diary contains the names of persons who are aware of the defendants criminal activities, and the police interview these persons, obtaining statements incriminating the D. The fruit of the poisonous tree doctrine is not as simple and straight forward as Note 1 might suggest.

b. Once you decide exclusion is available remedy, do any Exceptions APPLY to exclusionary rule?->
i. Exception #1 to Exclusionary rule (FOPT) -> Independent Source Doctrine: Evidence that is not causally linked to unconstitutional governmental activity is admissible pursuant to the independent source doctrine because such evidence, in essence, is fruit from a non-poisonous tree. The doctrine applies if the challenged evidence is: 1. (1) first discovered during lawful police activity; OR 2. (2) initially discovered unlawfully, but is later obtained lawfully in a manner independent of the original discovery. a. Murray v. US (1988 Sup ct) - illegal entry followed by lawful warrant i. Facts: Two agents trailing the petitioner forced entry into a warehouse containing the petitioners vehicle. They discovered marijuana. Subsequently, they returned with a warrant. ii. Rule: evidence observed by the police during an illegal entry need not be excluded if such evidence is subsequently discovered during a lawful search pursuant to a warrant if the warrant was issued upon information wholly unconnected to the prior entry iii. Rule: 1. Evidence found for the first time during the execution of a valid and untainted search warrant is admissible if its discovered pursuant to an independent source. a. *but if the officers decision to seek the warrant was prompted by what they had seen during the initial entry, OR i. says not here b. if information obtained during that entry was presented to the magistrate and affected his decision to issue the warrant-> i. the search pursuant to the warrant would NOT have been an independent source. ii. Exception #2 to exclusionary RULE: 1. Inevitable discovery doctrine-> a. Rule-> b. If the prosecution can establish that the information ultimately or inevitably would have been discovered by lawful means then the deterrence rationale has so little basis that the evidence should be received i. Burden of proof is preponderance of the evidence. c. Nix v Williams-> 1984 Sup ct-> i. Police failed to give a D right to counsel before asking him questions & getting him to lead them to body. ii. Govt says that if D had not led them to body, they wouldve inevitably found it on their own within a short time. iii. Holding: Evidence Admissible, b/c here at the time D agreed to

cooperate, there was a search for the body that was within two 1/2 miles of the victim and wouldve found her. iii. Exception #3 to exclusionary rule: Attenuation (or dissipation of Taint) doctrine-> 1. Evidence that otherwise qualifies as fruit-of-the-poisonous-tree may be admissible if its connection with the illegal police activity is so attenuated that it is purged of the taint, because of a CAUSAL break(at some point the fruit from a poisonous tree is sufficiently untainted so as to be admissible in a criminal case). 2. Brown v. Illinois listed several considerations, including-> a. (1)Temporal proximity i. The shorter the time lapse between the Fourth Amendment violation and the acquisition of the challenged evidence, the more likely it is that a court will conclude that the evidence is INADMISSIBLE and ii. the longer the time lapse b/w 4th violation & acquisition of challenged evidence, the more likely it will be admissible 1. For example, in Wong Sun, the Court suppressed a statement from the defendant in his bedroom when the police obtained it immediately after an unlawful arrest, 2. but found a statement made several days later upon voluntary return of the defendant was admissible. 3. Similarly, the Court suppressed the evidence in Brown where the police obtained a confession within 2 hours after an unlawful arrest. b. (2)Intervening Events: The more factors that intervene between the Fourth Amendment violation and the seizure of the challenged evidence, the more likely it is that the evidence will be deemed to have lost its taint. i. Intervening Act of Free Will: An intervening act of free will can remove the taint of an earlier Fourth Amendment violation. For example, in Wong Sun, upon his release from jail after his unlawful arrest, the defendant later voluntarily returned to the police station and provided a written statement. ii. Miranda Warnings - Brown v. Illinois (1975) Miranda warnings act as an intervening factor, but are not enough alone to break the link between a confession and the constitutional violation. c. (3)The flagrancy of the initial misconduct/deterrence

1. Police interrogation: the self incrimination clause

Miranda Warnings a. Miranda Roadmap b. Does the Miranda doctrine apply? (Must be a custodial interrogation, need BOTH) i. (1)When in custody & 1. FIRST, what were the circumstances surrounding the interrogation and 2. SECOND, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. a. Age should be considered when known or reasonably apparent (JDB) ii. (2)Interrogation-> IF BOTH -> Must give Miranda rights a. Objective test BUT b. *Parse which are subjective where it goes to bad faith or Ds susceptibility (reasonable person objectively) c. The term interrogation under Miranda refers NOT ONLY to express questioning, but -> i. ALSO to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response.

a. *FN7-> Subjective intent-> Innis i. not to say intent of police irrelevant where police practice is designed to elicit an incriminating response from accused, its unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect. b. *FN8-> ii. Knowledge of the police of the unusual susceptibility of a D to a particular form of persuasion might be an important factor in determining whether the police should have known their words or actions were reasonably likely to elicit an incriminating response c. Has the right been invoked? (Must be invoked unambiguously, must explicitly say it) d. Has the right been waived? (Before invocation, the standard for waiver is knowing and voluntary.) i. Waiver must be-> 1. knowing & a. here, was read his rights & had him read his rights himself to make sure he knew English 2. voluntary a. Here, no coercion, even though was sitting in chair for 3 hours, theres no authority that says thats inherently coercive. b. *Burden on govt to show no coercive 3. * CAN ->Implicitly waive rights (dont have to speak) -> a. Rule: Suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights-> i. waives the right to remain silent by making an uncoerced statement to the police. 4. *Can reboot process-> after Invoking Miranda rights (Schatzner) a. Can reboot process (after 14 days) i. The gives enough time for the suspect to get reacclimated to his normal life ii. To consult with friends and counsel AND iii. To shake off any residual coercive effects of his prior custody. e. Miranda (once under custodial interrogation, gives 2 rights->) i. (1) Right to remain silent (MI v. Mosley): Once the suspect has unambiguously invoked this right, the police must stop the interrogation. The suspect may waive, but the waiver must be proved to have been knowing and voluntary. ii. (2) Right to counsel (Edwards v. AZ): Once the suspect has unambiguously invoked his right to counsel, the police must stop the interrogation and leave. They can only continue if: 1. The suspect initiates subsequent contact (any interaction, including asking What is happening to me now?); or 2. The attorney is present during interrogation and agrees. f. MIRANDA EXCEPTIONS->Would Miranda apply to suspects who do not know that they are being questioned by police? i. #1 -> encounters b/w suspects and undercover officers are not subject to Miranda, a. Rationale ingredients of a police dominated atmosphere and compulsion are not present when an incarcerated person speaks freely to someone that he believes to be a fellow inmate. ii. #2-> The public safety exception-> 1. Objective std-> a. Rule: Police need not give Miranda warnings where concern for the public safety outweighs the need for the warnings. i. Quarles-> In this case, the police were placed in a situation where, in

order to protect the people in the supermarket, they had to find a fun they had reason to believe was in the vicinity of the suspect.

a. Miranda Violation (MIDSTREAM RIGHTS GIVEN)-> b. Fork in law - Test for whether Miranda warnings delivered midstream could be effective
enough to accomplish their object-> 1. Rule: #1-> a. A voluntary signed confession, made AFTER being fully advised of Miranda rights, is NOT rendered inadmissible by a PRIOR remark made in response to questioning w/o the benefit of Miranda Warnings. (Elstad) i. Elstad -> 1. Made a confession at his home. 2. Then later made a voluntary signed confession, after being fully advised of Miranda rights. a. Here, its clear there was no element of coercion involved, and the subsequent waiver of the right to remain silent was made voluntarily and knowingly. 3. Reasoning: a. failure to administer Miranda warnings raises a presumption of compulsion-> i. this presumption, however, does NOT necessarily require that the statement and its fruits are irreparably tainted. ii. A procedural Miranda violation differs significantly from a 4th amendment exclusionary rule violation, whose purpose to deter improper conduct justifies the application of the fruit of the poisonous tree doctrine.

1. UNLESS -> Seibert std-> the deliberate two step strategy was employed->

a. deliberate std & b. subjective std for police ii. If deliberate two step strategy used-> VIOLATES MIRANDA b. Seibert Rule: The police technique of interrogating in successive, unwarned and warned phases violates the requirements of Miranda-> 1. Postwarning statements that are related to the substance of prewarning statements must be EXCluded UNLESS curative measures are taken before the postwarning statement is made. 2. Curative measures should be designed to ensure that a reasonable person in the suspects situation would understand the import and effect of the Miranda warning and of the Miranda waiver. c. Seibert Rule: The police technique of interrogating in successive, unwarned and warned phases violates the requirements of Miranda->

individual from making a free and rational choice about speaking and held that a suspect must be adequately and effectively advised of the choice the constitution guarantees. ii. Missouri v. Seibert-> 2004 Sup ct-> 1. After employing this technique of interrogating in successive, unwarned, and warned phases, Seibert confessed to murder prior to her warnings and then again after being given the warnings. b. Notes: 1. Rule #3 Maj/souters test (p.636) when Miranda warnings were given a. *Will apply regardless of intentional or unintentional interrogations i. First factor completeness & detail of questions & answers in first round of interrogations ii. 2nd overlapping content of 2 statements iii. 3rd timing & setting of 1st & 2nd iv. 4th continuity of police personnel v. 5th degree to which interrogators questions treated 2nd round as continuous w/ first. 1. *balance 5 factors *none is dispositive b. *Souter from suspects perspective (balancing std) would a reasonable person think they had a choice? c. *matters which one on test, kennedys approach is controlling (officers conduct deliberate? Matters which to apply) c. Note #6 p643 i. What elstad did not decide-> elstad left one fruits issue undecided-> 1. Can physical evidence, as distinguished from a statement made by a third party be used in evidence if discovered because of a violation of Miranda? a. 4th amendment rule, though subject to exceptions, is that physical evidence found by means of the violation is inadmissible.

i. Miranda addressed interrogation practices likely to disable an

2. MIRANDA CUSTODY->
i. Rule: 1. Miranda warnings must be given ONLY if a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. 2. Clarify Miranda custody issue-> a. Two discrete inquiries are essential to the determination i. FIRST, what were the circumstances surrounding the interrogation and ii. SECOND, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. iii. *also need interrogation for Miranda req ii. Reasoning: 1. Here, there was no custody a. For Miranda must have i. Interrogation AND ii. Custody (but told NOT under arrest here, free to leave) iii. Oregon v. mathiason (1977) 1. Mathiason had been suggested as a possible suspect in a home robbery. 2. Officer left card at his house, he called

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vi. vii.

viii.

ix.

3. Agreed to meet at police station two blocks from home. 4. He was told hes NOT under arrest a. Went into a room, closed door, w/ officer sitting across a desk from each other b. Told his fingerprints were found at scene of crime (lie) c. Admitted to burglary d. Officer then gave Miranda warnings & took taped confession. e. Then let him go home Dissent - True that respondent was not formally placed under arrest, but surely formalities alone cannot control. a. At very least, if respondent entertained an objectively reasonable belief that he was not free to leave during the questioning, then he was deprived of his freedom of action in a significant way. b. In my view, even if respondent were not in custody, the coercive elements in the instant case were so pervasive as to require Miranda type warnings. Berkemer v. McCarty-> Miranda warnings do NOT have to be given during a routine traffic stop. 1. A highway patrol officer noticed berkemer to be driving erratically. 2. He pulled him over and subjected him to a field sobriety test, which he failed 3. Upon being asked if he had been drinking, Berkemer admitted consumption of alcohol and marijuana. 4. He was then arrested and given Miranda warnings later. 5. At trial, his statement was admitted against him, over objections that the Miranda warnings have to be given during a routine traffic Issue: 1. At what point in custody/statements admissible? Holding: 1. Statements before arrested ADMISSIBLE 2. Statements after arrested INADMISSIBLE a. Court says custody when hes arrested/put in police car, but arrest is NOT required for Miranda violation. Reasoning: 1. Miranda is concerned with the inherently coercive nature of custodial interrogation. 2. A roadside differs from custodial interrogation in several respect a. First, usually only one or two officers are present b. Second, such detentions are usually open to public view c. Finally, the duration is generally rather short For these reasons, the court finds a routine traffic stop not to be so coercive that Miranda is implicated.

Assignment#24 2. Custody & Miranda continued-> a. Miranda violation?-> Custodial interrogation? i. (1)Interrogation (clearly here) & ii. (2)In custody? YES JDB 1. Test-> a. Is freedom of movement sufficiently limited? (objective test) i. Age should be considered when known or reasonably apparent (here known) ii. Subjective issue-> iii. JDB v. North Carolina (2011) -> Found CUSTODY-> iv. Facts:

3. Interrogation & Miranda

1. 13 yr old in middle school seen holding stolen item 2. taken to principal & asked whether he did it, refused to talk 3. 4 ppl in room, principal 2 officers and another vp 4. Earlier, police had been given info by school of boys DOB, etc. v. Reasoning: 1. Age should be considered b/c beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. 2. A student whose presence at school is compulsory and whose disobedience at school is cause for disciplinary action is in a far different position that a parent volunteer on school grounds to chaperone an event. a. Similar to police station vi. Notes: 1. Def has 2 choices-> a. Pristine 5th amendment physical coercion b. Most def use Miranda violation

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a. Interrogation-> 1. *Now interrogation-> a. Objective test BUT b. *Parse which are subjective where it goes to bad faith or Ds susceptibility (reasonable person objectively) c. The term interrogation under Miranda refers NOT ONLY to express questioning, but -> i. ALSO to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response. 2. Innis-> No interrogation, but not too far off-> a. Facts: i. officer recognized man & arrested him ii. said he wanted a lawyer told not to question D on way to station iii. two officers said handicapped school close & one of the kids might find the gun & get hurt 1. he then told them where weapon was b. Reasoning: i. Conversation b/w officers included no express questioning of the respondent. ii. Rather, it was nothing more than a dialogue b/w the two officers in which no response from the respondent was invited. c. *FN7-> Subjective intent-> i. not to say intent of police irrelevant where police practice is designed to elicit an incriminating response from accused, its unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect. d. *FN8-> i. Knowledge of the police of the unusual susceptibility of a D to a particular form of persuasion might be an important factor in determining whether the police should have known their words or actions were reasonably likely to elicit an incriminating response from the suspect.

1. Waiver & Invocation of Miranda Rights->

a. 2 possible Miranda outcomes-> i. (1)Invoke right OR 1. Invokation has to be a. Unambiguous, meaning EXPLICITY say you invoke Miranda rights i. Here, thompkins did not say that he wanted to remain silent or that he did not want to talk with police had he made either of these simple, umambiguous statements-> 1. he would have invoked his right to cut off questioning.. ii. (2)Waiver 1. Implicitly waive rights (dont have to speak) -> a. Rule: Suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights-> i. waives the right to remain silent by making an uncoerced statement to the police. b. Waiver must be-> i. knowing & 1. here, was read his rights & had him read his rights himself to make sure he knew English ii. voluntary 1. Here, no coercion, even though was sitting in chair for 3 hours, theres no authority that says thats inherently coercive. 2. *Burden on govt to show no coercive iii. *Can reboot process-> after Invoking Miranda rights (Schatzner) 1. Can reboot process (after 14 days) a. The gives enough time for the suspect to get reacclimated to his normal life b. To consult with friends and counsel AND c. To shake off any residual coercive effects of his prior custody. iv. Thompkins-> (Sup ct. 2010) -> WAIVED RIGHTS 1. Taken to room 8 x 10 (Miranda concerned about police station like area) a. Officer asks 3 questions about G-d-> i. Do you believe? ii. Do you pray to god? iii. Do you pray hell forgive you for shooting boy? b. Answer-> yes to all three. b. Note#4 p. 670-> i. Must suspect know crime police are seeking to ask him about? 1. NO, a waiver of Miranda is to interrogation in general and NOT to interrogation about a particular crime. 2. Thus Miranda is NOT crime specific 3. Colorado v. Springs S was arrested fro possession of stolen firearms. He waived Miranda, and police questioned him not about the stolen firearms, but about a murder with which S had not been charged. 2. Assignment #26->

The Role of Defense Counsel->

a. The Right To Appointed Counsel-> a. What is the right?-> i. (1)ONLY FOR FELONIES & (guaranteed right to counsel) 1. No right to appointed counsel for misdemeanors where no incarceration is imposed ii. (2)Any offense where imprisonment is imposed 1. Scott potential prison term does NOT automatically give right to counsel (so in that case court wont send you to prison b/c if they dont give you lawyer, they cant sentence you to jail time) 2. HOWEVER-> a. Can waive right if competent & intelligent b. Also not entitled UNLESS cant afford lawyer iii. (3)Appeals?-> 1. *Only for direct appeals granted as a matter of right (NOT for discretionary appeals) a. Prof thinks better argument is on 6th amendment rather than 14th Assignment # 28 1. Right to effective assistance of counsel-> how effective must lawyer be? a. What std-> i. 6th amendment violation occurs ONLY if counsels performance was -> 1. (1)deficient AND 2. (2)such deficiency resulted in ACTUAL prejudice. a. *highly deferential review b. Objective std (prevailing professional errors) i. Entitled to loyalty, avoidance of conflict of interest, advocacy, right to be kept informed, duty to apply, right to be kept informed, duty to apply skill & knowledge, & to investigation 3. i.e.-> Strickland v. Washington-> a. Facts: i. At sentencing, atty did not introduce character witnesses nor psychiatric testimony, as he had not been able to find a mental health professional who would testify that D was mentally disturbed. ii. He got sentenced to death iii. *Prof says this cant be right, lawyer slept a lot & for long periods of time & didnt offer ANY psychiatric evidence for person who had no history of violence 4. Padilla-> a. Imposes obligation to advise client properly regarding immigration/deportation as collateral issue.