Criminal Procedure Outline 9/27/09 11:05 AM I. Opening thoughts A. The legislature 1. Power to define what conduct is criminal. Power to expand or reduce the CJ system, and thereby change the police presence a. i. 01. a. 1. B. Police 1. Police have great discretion about what they will investigate, they have the power to not seek further, to not press charges 2. Unlike most hierarchy, the most discretion is at the bottom, w/beat cops. More discretion than those at the top C. Lawyers, prosecution & defense 1. Seek justice, not convictions D. Judicial Review 1. Instruct police by regulating admissibility. II. Packer Article A. The tension b/w the Crime Control Model v. Due Process Model 1. Crime Control Model a. Do justice swift, accurate, conviction of crime. Efficiency, effectiveness, expeditious. Deals with probabilities. 2. Due Process Model
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Criminal Procedure Outline 9/27/09 11:05 AM
I. Opening thoughts
A. The legislature
1. Power to define what conduct is criminal. Power to expand or
reduce the CJ system, and thereby change the police presence
a.
i.
01.
a.
1.
B. Police
1. Police have great discretion about what they will investigate,
they have the power to not seek further, to not press charges
2. Unlike most hierarchy, the most discretion is at the bottom,
w/beat cops. More discretion than those at the top
C. Lawyers, prosecution & defense
1. Seek justice, not convictions
D. Judicial Review
1. Instruct police by regulating admissibility.
II. Packer Article
A. The tension b/w the Crime Control Model v. Due Process Model
1. Crime Control Model
a. Do justice swift, accurate, conviction of crime.
Efficiency, effectiveness, expeditious. Deals with
probabilities.
2. Due Process Model
a. Do justice by proving legal guilt. Must prove beyond a
reasonable doubt.
i. Presumption of innocence
ii. Do it the right way, not worried about losing
iii. The model is adversarial and judicial.
III. Exclusionary Rule
A. Exclusionary rule: if police obtain evidence in violation of the 4th
amen., cannot use that evidence at trial.
B. The exclusionary rule is the primary remedy for 4th amen.
violations; applied through motions to suppress.
C. The purpose of the rule is to deter the police, by removing any
incentive to disregard the rule.
D. Mapp v. Ohio all evidence obtained by S&S in violation of the
constitution is inadmissible in both state and fed. court against
those whose privacy interest wer violated. Rationale deterrence,
judicial integrity, provides a remedy.
1. Argument against the exclusionary rule: “the criminal is to go
free b/c the constable has blundered.” Cardoza
2. Argument for the rule:
a. “Our government is the potent, omnipresent teacher.
For good or for ill, it teaches the while people by its
example…If the government becomes a law breaker, it
breeds contempt for the law; it invites every man to
become a law unto himself; it invites anarchy.” Clark,
quoting Brandeis in Olmstead.
b. Nothing can destroy a government more quickly than its
failure to observe its own laws, or worse, its disregard of
the charter of its own existence. Clark, maj.
3. Mapp sets the federal minimum, does not set the ceiling.
4. Mapp: the 4th amen. is applied to the states through the 14th
amen.
5. Mapp applied the exclusionary rule to the states.
6. Does exclusion encourage perjury?
7. Dissent: (Harlan)
a. States should make up their own minds.
b. Fairness at trial
i. “I do not see how a trial becomes unfair simply
b/c a state determines that evidence may be
considered by the trier of fact, regardless of how it
was obtained, if it is relevant to the guilt or
innocence of the accused.
ii. All due process guarantees is fairness at trial.
iii. CA: could come at a very high cost, a murderer
gets away on a technicality.
iv. CA: the gov. is breaking the law.
01. CA: they don’t have the right to commit the
crime.
E. Exceptions to the exclusionary rule
1. These allow tainted evidence to come in.
IV. Searches
A. Katz
1. “what a person knowingly exposes to the public…is not subject
to 4th amen. protection. But what he seeks to preserve as
private, even in an area accessible to the public, may be
constitutionally protected.” Stewart, maj.
a. The 4th amen. applies to persons, not things/places.
2. “Warrantless searches are per se unreasonable, subject only to
a few specifically established and well-delineated exceptions.”
Stewart, maj.
3. Harlan (concurrence):
a. That a person has exhibited an actual (subjective)
expectation of privacy, and
b. That the expectation be one that society is
prepared to recognize as reasonable.
4. Privacy is the trigger for the 4th amen., not trespass.
5. When 4th amen. applies need a warrant, unless an exception
applies.
B. Open fields
1. No 4th amen. protection for open fields
a. There is no reasonable expectation of privacy
b. It does not matter that police are trespassing, the 4th
amen. applies to people, not places.
C. Curtilage
1. The area surrounding the home where reasonable privacy
expectations receive 4th amen. protection. The area where the
intimacies of life take place.
a. Dunn Four factors:
i. Proximity of the area to the home,
ii. whether the area is included w/in an enclosure
surrounding the home,
iii. the nature of the uses to which the area is put,
and
01. whether it is used for the intimacies of life
iv. the steps taken by the resident to protect the area
from observations by the people passing by.
2. Ariel surveillance
a. CA v. Ciraolo (although the backyard was w/in the
curtilage and a fence shielded the yard from street
view, aerial surveillance from 1,000ft. did not constitute
a search – could be observed w/ the naked eye, flight at
that altitude is routine… no reasonable expectation).
b. FL v. Riley (surveillance of partially enclosed
greenhouse by helicopter at 400ft.)
i. Ct. says there was a subjective expectation: w/in
curtilage and had taken precautions.
Nonetheless, the helicopter was w/in lawfully
navigable airspace where members of the public
travel w/ sufficient regularity, and it did not
interfere w/ the regular use of the curtilage, such
there was no reasonable expectation of privacy
(and therefore no “search”).
ii. The burden of proof was on the ∆ to show that
flights didn’t occur. O’Connor says that this would
be a factor, in her concurrence.
iii. Dissent points out public observation is not
commonplace from that vantage. No proof
showing that aircraft actually did fly over.
iv. Note: physical invasion of the curtilage is still
likely to be a “search.”
D. Bond v. US (physical manipulation of exterior of bag on bus was a
“search”).
E. Dogs
1. US v. Place (sniff test by narcotics dog): not a “search.” The
olfactory frisk is sui generis in that the means are less intrusive
and the content revealed is surgically precise (only reveals the
presence or absence of contraband) and so invades no privacy
interest.
a. The dog sniff only reveals crime, and there is no 4th
amen. protect of crime.
b. But, what about Harlan: personal sense of security, not
the criminal, and then balance that with the utility to
law enforcement.
2. Caballes
a. A dog sniff is not a 4th amen. search, so don’t need
probable cause.
F. U.S. v. White, by J. White, (electronic surveillance via informant ≠
“search”)
1. Testimony obtained by an informant is not protected by the 4th
amen. no warrant required if informer could have testified,
then the agents could testify as to what was said
2. This technique of deceiving an informant into thinking that the
confidant should be trusted is important for drug trafficking
cases.
3. In the same way that expectations/misplaced trust of
colleagues or undercover agents is not protected, recorded
transmissions of those conversations are also not protected [a
sort of implicit “knowing exposure” conception] In fact, a bug
is more accurate and reliable than testimony.
4. Basically: the police can do what they want in this context of
‘bugging’ as long as they find a ‘willing accomplice.’
5. Harlan dissent:
a. “Since it is the task of the of the law to form and
project, as well as mirror and reflect, we should not
merely recite the expectations and risks w/out
examining the desirability of saddling them upon
society. The critical question is whether under our
system of government, as reflected in the Const. we
should impose on our citizens the risks of the electronic
listener or observer w/out at least the protection of a
warrant requirement”
b. The question must be answered by assessing the nature
of a particular practice and the likely
i. extent of its impact on the individual’s
sense of security; balanced against
ii. the utility of the conduct as a technique of
law enforcement.
01. Concerned with impact on sense of security,
free social intercourse, and the chilling effect
on public discourse.
G. Knowing exposure to the public defeats any reasonable expectation
of privacy.
1. Greenwood trashbags on curb case
a. The trash bags were knowingly exposed. They were
accessible to the public and were conveyed to a third
party.
b. Dissent: trash harbors evidence telling of the intimate
activity associated with w/the sanctity of a man’s home,
and the privacies of life. The contents were concealed.
Katz’s “what a person seeks to preserve as private,
even in an area accessible to the public, may be
constitutionally protected.” Relinquishment does not =
relinquishment of privacy interest.
H. Tracking
1. Knotts (tracking device in chemical drums)
a. There is no reasonable expectation for privacy of travel
(b/c its visually available)
2. Karo
a. Used a beeper to track
b. You can use the beeper information when it is in a
public place, can’t use the info when it was in the
house.
c. The tainted info which was included in the warrant
affidavit would invalidate the warrant for the search of
the house if it proved to be critical to establishing the
probable cause. But here, there was sufficient
untainted evidence to support probable cause.
d. Dissent: when people are on a public highway, but are
attempting to conceal things, should be afforded 4th
amen. protection.
I. Kyllo thermal imaging case
1. The home is the place of heightened security.
2. Scalia: Any information obtained w/technology that could not
otherwise have been obtained w/out physical intrusion (into a
const. protected area) is a “search,” at least where the
technology in question is not in general public use.
3. In the home all details are intimate details, court declares a
bright line at the entrance to the house. Merely b/c it is
external doesn’t mean it is knowingly exposed.
4. Dissent: no info revealed about the interior of the home (only
external); no reasonable expectation. Emphasizing privacy in
the home reduces mobility and favors the rich.
J. Privacy & cameras/pictures
1. Public exposure of our faces, and cameras and pictures being
taken.
2. What about terrorism?
a. Cases imply that maybe, where the issue is terrorism,
we might not protect so much
V. Seizures
A. Police never need justification to seize contraband, or the fruits or
instrumentalities of crime (although there might be a 4th amen.
expectation of privacy regarding the search for those things).
B. If not a 4th amen. seizure, then no justification needed.
C. Justification:
1. Probable cause
2. warrant
3. Consent
D. Seizure of a person (arrest)
1. Arrests require 4th amen. justification
2. Arrests in public usually only require PC, usually don’t require a
warrant
3. As a general rule: police may approach anyone, and ask a few
questions. (mere encounter rule). That does not invoke the 4th
amen. Also, if people consent, no 4th amen. issue.
E. Bus cases
1. Bostick
a. O’Connor, maj.: “so long as a reasonable person would
feel free to disregard the police and go about his
business, the encounter is consensual = not trigger 4th
amen.”
b. A seizure occurs when a reasonable person would
believe that he or she is not free to leave/terminate the
encounter.
i. O’Connor, maj.: Only when an officer, by means
of physical force or show of authority, has in some
way restrained the liberty of a citizen may we
conclude that a seizure has occurred (subject to a
Terry stop & frisk exception, Terry stop just needs
reasonable suspicion)
01.
c. Test for seizure:
i. When a reasonable (innocent) person would
feel free to decline the officer’s request or
otherwise terminate the encounter. (totality
of the circumstances)
01. If it is not an arrest police do not need
justification (aka PC)
ii. The court expects ∆ to deny consent.
2. Drayton Kennedy, maj.
a. No requirement to inform individuals of a right to refuse
consent. (aka no requirement of informed consent)
i. the mere display of badge or presence of firearm
(so long as not brandished) is insufficient
ii. There were no threats or intimidation, and there
was an open exit.
iii. Totality of the circumstances.
01. Lack of informed consent could be a factor in
the totality of the circumstances.
b. Note: suspicionless seizure will invalidate the
subsequent search (incident to arrest)
3. Mendenhall
a. Provides factors the presence of which might suggest
that a given police-citizen encounter constitutes a 4th
amen. seizure:
i. The threatening presence of several officers
ii. The display of a weapon by an officer
iii. Physical touching
iv. The use of language or tone of voice indicating
that compliance with the officer’s request might
be compelled.
4. Brower
a. Case where the ∆ had a stolen car, police set up a road
block around a bend so he would crash.
b. Violation of the 4th amen. requires an intentional
acquisition of physical control.
5. Hodari D
a. Case where ∆ was fleeing, threw the crack while
running, was he seized by the show of authority, the
officer chasing him? b. A suspect who attempts to run away from police is not
“seized” when police pursue him. An arrest (“seizure”)
requires either:
i. Physical force, or
ii. Submission to the assertion of authority.
VI. Probable Cause
A. PC: known facts and circumstances + inferences therefrom are that
would be sufficient to warrant a man (officer) of reasonable
prudence in the belief that contraband or evidence of a crime will be
found.
B. PC is the std. for justification of gov. interference, it appears in the
warrant clause, it is required for all warrants.
1. PC is also required for all arrests. (although not all arrests
require warrants).
C. Measurement spectrum of probability of crime
1. Suspicion PC Certainty.
D. The default rule is that both warrant and PC are required, although
there is an attack on this, which is that the unreasonable search and
seizure clause is independent of the warrant requirement.
1. Argument: the search and seizure clause does not require a
warrant in every place, it just requires that searches and
seizures be reasonable, and warrants are only required when
they would have been required back in 1979 (when the 4th
amen. was passed).
E. PC evaluation:
1. Antecedent/magistrate v. post-hoc/judge
a. Post-hoc the ringing bell problem
2. Antecedent PC evaluation Warrant
a. Rationale:
i. Jackson, in Johnson v. U.S.
01. “The point of the 4th amen., which is not
often grasped by zealous officers, is not that
it denies law enforcement the support of the
usual inferences which reasonable men draw
from evidence. Its protection consists in
requiring that those inferences be drawn by a
neutral and detached magistrate instead of
being judged by the officer engaged in the
often competitive enterprise of ferreting out
crime. Any assumption that evidence
sufficient to support a magistrate’s
disinterested determination to issue a search
warrant will justify the officers in making a
search w/out a warrant would reduce the
amendment to a nullity and leave the
people’s homes secure only in the discretion
of police officers.”
F. Nathanson: An officer’s conclusory statement that establishes no
basis for the conclusion will never be enough to establish PC.
1. Have to provide factual details, no bare bones conclusory
statements.
G. Draper guy walking fast, anonymous tip
1. There was strong corroborating evidence, the officers observed
the informant was correct in what the ∆ was wearing, what
train, that he would be walking fast.
2. This illustrated a case where there was PC based upon an
anonymous tip. Prosecution will always analogize to Draper.
H. Illinois v. Gates (anonymous letter to the police + subsq.
surveillance used to get warrant)
1. Reject two-prong test of Spinelli, which required (1) the affidavit
must adequately reveal the basis of knowledge, i.e. the means
by which the informant came by the information, and (2) facts
sufficiently establishing either the veracity of the affiant’s
informant or the reliability of the informant’s report in this
particular case.
2. “Adopt a totality of the circumstances approach for
probable cause, in which the two prongs are merely important
factors. Probable cause is a fluid concept, and the magistrate
is to make a practical, common-sense decision whether there is
a fair probability that contraband or evidence of a crime will be
found in a particular place. (and the duty of the reviewing
court is simply to ensure that the magistrate had a substantial
basis for concluding that PC existed).”
3. **Totality of the circumstances approach:
a. The magistrate is to:
i. Make a practical, common-sense decision
whether
ii. Given all the circumstances set forth in the
affidavit,
iii. Including the “veracity” and “basis of
knowledge” of persons supplying hearsay
information,
iv. There is a fair probability that contraband or
evidence of a crime will be found in a particular
place.
01. Weakness in one element can be made up by
strength in another.
4. The sufficiency of an anonymous tip may depend upon the
detail of info. and the congruence of the tip w/ facts
independently observed (i.e. suspicion engendered in tip may
ripen into PC if enough facts in the tip are corroborated by
police). Draper, guy in trenchcoat that walked fast.
a. Reviewing courts are to pay “great” deference to
a magistrate’s determination of PC (need only a
substantial basis for finding PC), but where police act
w/out a warrant there is no deference to the lower ct.’s
determination. Remember, no warrant = presumptively
unreasonable.
I. Ornelas
1. Rule for warrantless searches:
a. PC should be reviewed de novo, w/
b. Due weight given to inferences drawn from those facts
by local judges and local law enforcement. (police
officer may draw inferences based on his own
experience).
i. Std: reasonable police officer
ii. Note 1 p.441: This instruction is not simply
inconsistent with true de novo review; it is
inconsistent in a way that gives the prosecution a
leg up. A deferential std. of review like “clear
error,” the std. initially applied by the court of
appeals in Ornelas, gives weight to the judgments
of the trial court, but not to those of the officers
involved in the case. By rejecting a “clear error”
standard in favor of a “de novo with due weight”
standard, the Court in effect declared that police
officers should receive as much deference as trial
judges. Taken as a whole, then, Ornelas may
make appellate review of suppression rulings
appreciably more hospitable to law enforcement.”
2. Note: If there is a warrant, the magistrate’s determination is
entitled to deference and is reviewed for clear error.
3. So, PC review for warrantless searches is stricter than searches
w/ a warrant. (where great deference is given to the
magistrate from Gates). This provides an incentive to law
enforcement to get a warrant.
a. “due deference” probly = “great weight”
i. argument against this:
01. J. Jackson in Johnson v. U.S. p.421: “The point
of the 4th amendment, which often is not
grasped by zealous officers, is not that it
denies law enforcement the support of the
usual inferences which reasonable men draw
from evidence. Its protection consists in
requiring that those inferences be drawn by a
neutral and detached magistrate instead of
being judged by the officer engaged in the
often competitive enterprise of ferreting out
crime. Any assumption that evidence
sufficient to support a magistrate’s
disinterested determination to issue a search
warrant will justify the officers in making a
search without a warrant would reduce the
Amendment to a nullity and leave the
people’s homes secure only in the discretion
of police officers.”
02. So: Jackson: that default to the police officer,
that deference to the officer, is not allowed by
the 4th amendment. The magistrate is a
necessary bulwark. He really likes the
warrant process.
J. Pringle
1. Yes PC; car passenger often engaged in common enterprise as
the driver
a. Implication : court found it reasonable to infer that any
or all three of the occupants of the vehicle had
knowledge of, and exercised dominion and control over,
the coke.
b. Exclusion : if the informer singles out the guilt person,
then the PC is particularized. Di Re.
K. Ybarra (guy gets frisked in the bar, when the officers were at the
bar b/c they suspected the bar owner was dealing heroin)
1. PC: requires a reasonable ground for belief of guilt, and that
belief of guilt must be particularized with respect to the person
to be searched or seized. Particularity is required, mere
propinquity is not enough.
2. Person must be independently suspected of criminal activity –
individualized/particularized suspicion needed w/regard to the
person to be searched or seized.
VII. Warrants
A. Required for a warrant:
1. PC
2. Supported by oath or affirmation
3. Particularly describing the place to be searched, or the persons
or things to be seized.
4. Determination of PC must be decided by an official detached
from law enforcement (aka neutral magistrate) (cannot be A.G.,
also cannot have fee deferential e.g. $0.50 for approval and
$0.25 for denial.)
B. As long as the affidavit is done under penalty of perjury, can be
phoned in, faxed in, etc. Magistrate does not have to be there.
C. Particularity requirement:
1. A description should be particular enough to permit an officer
w/ reasonable effort to ascertain and identify the place
intended. If it is so ambiguous that police can’t discern, then
search cannot proceed. If there is clarifying info. then the
search may be permitted.
2. Where there’s a mistake, the validity of the search depends on
whether the officers’ failure to realize the overbreadth of the
warrant was objectively reasonable.
3. The ‘things to be seized’ requirement limits the scope (spatially
and temporally) of a search (subject to the plain view
exception).
D. Anticipatory Warrant (“triggering condition”)
1. As long as there is PC, don’t need the triggering condition on
the face of the warrant.
2. Grubbs
a. Scalia, maj., requirements for PC for an anticipatory
warrant:
i. “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’ (taking quote from Gates); but
also ii. That there is PC to believe the triggering condition
will occur.
01. Scalia: the mere possibility that triggering
condition will not happen is not enough to
destroy PC.
02. Prof: If the time period of the warrant is
unknown, then might have to worry about the
warrant becoming stale. PC is a perishable
commodity.
a. But there is nothing in the 4th amen.
about putting a date on the warrant.
b. Requirement to display/show warrant to property
owner?
i. Nope.
01. The requirement of particular description
does not protect an interest in monitoring
searches.
a. Scalia: “the absence of a
constitutional requirement that the
warrant be exhibited at the outset of
the search of indeed until the search
has ended, is…evidence that the
requirement of particular description
does not protect an interest in
monitoring searches.”
02. Souter, Concurrence: “the right of an owner
to demand to see a copy of the warrant
before making way for police is undetermined
today.”
3. Pro and cons to showing the warrant:
a. Pro: might enlist their cooperation, protect from
property damage, and it could limit the scope of the
warrant, the person could simply go grab the gun.
b. Con: so as not to alert them to what they are looking
for, so they don’t destroy the evidence
VIII. Reasonableness
A. Execution of the warrant
1. The 4th amen. requires “reasonableness” in the execution of
the warrant.
2. The need for “force” balanced against the intrusion on
individual liberty.
3. Timing: more dangerous for police to execute a warrant at
night.
4. Warning: will give people a chance to collect themselves, will
depend on type of offense, knock and announce rule
5. The 4th amen. requires “knock and announce”
a. The purpose is to give the reasonable, innocent person
time to get to the door before they break it, to put on
some clothes
b. Banks: “The obligation gives way when officers have
reasonable suspicion that knocking and announcing
their presence, under the particular circumstances,
would be dangerous or futile, or…would inhibit the
effective investigation of the crime by, e.g. allowing the
destruction of evidence.” Souter, maj.
i. Totality of the circumstances: The reasonable
time given to ∆ to open the door will be
determined by the specific circumstances, i.e. are
they going there for cocaine or a grand piano?
ii. Limits on reasonableness:
01. the thing searched for
02. Law enforcement interest
03. Individual’s interest
a. His door
b. His dignity
6. Police actions in executing the warrant must be related to the
objectives of the authorized intrusion.
7. Can detain while the search is being conducted, for the officer’s
safety. The detainment is limited though (limited by
reasonableness?) e.g. think Mena, the case where the
handcuffed for 2-3 hrs. and questioned the girl about her
immigration status.
8. Wilson, Police actions in executing the warrant have to be
“related to the objectives of the authorized intrusion”. (police
brought in the media, & the presence of the 3rd parties was not
in aid of the execution of the warrant – opening up the Wilson’s
house to media scrutiny was outside the objectives of the
search)
9. Perp walks, the reasonableness of which is analyzed, under the
umbrella of 4th amen. seizures.
10. Exceptions to the warrant requirement
a. Exigent circumstances
b. Plain view
c. Automobiles
d. Arrests & searches incident to lawful arrest (SITLA)
e. Stop & frisk
i. These are seizures
f. Consent
i. All of these exceptions seem to be merging into
“reasonableness”
ii. These exceptions provide some limits that
arguably are not there if it is just
“reasonableness”
iii. Reasonableness with regard to the execution of
the warrant:
01. Analysis of reasonableness balancing
government interest against the
intrusiveness on the individual.
02. Another aspect of reasonableness:
a. Police conduct must be related to the
object of the search, no more, no less.
11. Exigent Circumstances
a. Hot pursuit of fleeing felon, destruction of evidence,
immediate aid, community caretaking, danger to officer
or third parties
i. The right to search is limited to the exigent
circumstance that prompted the search.
01. After the exigence ends, then the officer
needs to stop and get a warrant (or find
another exception)
02. Destruction of evidence: objective
opportunity that evidence of a crime or
contraband will be destroyed if police wait to
go get a warrant.
03. Community caretaking/aid: allow a
warrantless entry and search(to the extent
justified by that exigent circumstance
justifying the entry) when there is reasonable
evidence of an emergency need.
a. Brigham City v. Stuart: we do not
inquire into the officer’s subjective
intent, we do not care, so long as
there are objective indicators of the
need for help).
1. “an officer’s action is reasonable
under the 4th amen., regardless
of the individual officer’s state
of mind (includes inner motive
of officer) as long as the
circumstances, viewed
objectively, justify the action.
The officer’s subjective
motivation is irrelevant.”
b. Mincey, Stewart: Limitation: the exigency defines the
boundaries of the search: “A warrantless search must
be strictly circumscribed by the exigencies which justify
its initiation” (both physically and temporally)
Furthermore, the exigency must be objectively
reasonable.
c. Tests:
i. In Mincey: Balancing the government interest vs.
intrusion on individual
ii. In Welsh v. Wisconsin (guy driving drunk & walked
home): Balancing intrusion on him vs. the gravity
of the underlying offense.
d. Illinois v. McArthur (guy with drugs in house, wife tells
on him, officer watches him while he goes inside to get
cigarettes.)
i. The exigency would have justified an entry, the
step the officer took here while a warrant was
secured was reasonable.
ii. “Rather than employing a per se rule of
unreasonableness, we balance the privacy-related
and law enforcement concerns to determine if the
intrusion was reasonable.”
iii. Facts:
01. PC existed
02. Likelihood evidence would be destroyed
03. Intrusion was tailored and restrained
04. There were temporal limits on intrusion
05. Doorway is a public space, since they could
lawfully keep him outside, it follows they
could accompany him inside
06. Here it was a jailable offense and intrusion
less serious, making it different from welsh
iv. B/c exigency, destruction of the evidence, would
have justified an entry, the lesser step offier took
here while warrant was secured was reasonable
12. Plain View
a. Definition: An officer who has probable cause to believe
that an item is contraband or evidence of a crime may
seize it, without a warrant, if the object is in plain view
and the officer is operating lawfully from a place where
he has a right to be and can gain physical custody over
it.
i. This doctrine requires officers to operate from a
place where they lawfully had a right to be to
seize the object.
b. Arizona v. Hicks (moved the stereo) Scalia
i. The search was not related to the exigent
circumstance, it required additional justification.
ii. Moving the equipment (which exposed concealed
portions of the apt.’s contents) constituted an
independent “search” unrelated to the authorized
entry (i.e. outside the scope of the search for
weapons) and so constituted a new invasion of
privacy. The plain view exception does not give a
general license to just rummage around.
c. NY v. Class (looking for VIN # and found gun in car)
i. The officer was allowed to be in the car b/c of the
state statute requiring the VIN to be visible…
d. Horton Stevens
i. Key point of plain view: The scope of the search is
defined by the object of the search.
ii. Requirements for warrantless plain view seizure:
01. The officer lawfully arrived at the place from
which the evidence was viewed
02. The item must be in plain view and its
incriminating character must be immediately
apparent.
03. The officer must have a lawful right of access
to the object itself.
iii. The officer need not have inadvertently
discovered the evidence in order to invoke the
plain view doctrine (scope of search is already
adequately circumscribed by warrant or
exigency).
e. Automobiles
i. Carroll & Chambers = As a general matter, the
search of a car could be based solely on PC to
believe that the car contained evidence or
contraband, and did not require a warrant. This
included any and all integral parts of the car.
(such as the glove compartment and trunk).
ii. Chadwick & Sanders = Containers: the
automobile exception does not apply to
containers within the car. Gov. interest
outweighed by privacy interests.
iii. Ross: (had PC that person was selling drugs out of
trunk; searched closed brown paper bag in trunk):
01. The scope of a warrantless search of an
automobile is not defined by the nature of the
container in which the contraband is secreted
but rather by the object of the search and the
places in which there is probable cause to
believe that it may be found. This ruling
created a dichotomy b/w “container-specific”
probable cause (where Chadwick applied) and
“car-general” PC (in which case Ross applied).
iv. CA v. Acevedo , Blackmun (had PC re: brown paper
bag in trunk)
01. Ct. abandons distinction b/w containers found
during general search and during targeted
search (the privacy expectation and exigency
is not any different in either case).
02. Adopt a single a single standard (from Ross,
see standard above): search is circumscribed
by probable cause. The police may search
an automobile and the containers w/in it
where they have PC to believe
contraband or evidence is contained.
03. Scalia Concurrence: two 4th Amend. clauses
are separate, such that warrants are not
actually prescribed for searches and seizures.
Searches and seizures are governed by the
reasonableness standard. CL should define
reasonableness.
04. Note: although ct. overruled Sanders, it did
not overrule it did not overrule Chadwick
(footlocker), likely b/c it is a locked, personal
container.
a. I think: Chadwicki still applies where
PC only exists as to a container in the
car, then the container maybe held by
police but not searched, but then
again, it might only apply to
‘footlocker’ type containers, they can
be locked.
v. Acevedo: No warrant is required to search the car
or containers within it, so long as the officer has
PC to believe that there is evidence or contraband
in the vehicle. The object of the search limits the
scope of the search.
vi. Ross: “probable cause to believe that a container
placed in the trunk of a taxi contains contraband
or evidence does not justify a search of the entire
cab.” This is reaffirmed by Acevedo.
vii.String of pearls theory.
01. If you guess right in the first instance, you will
probly be able to string together some more
exceptions to search for what you want.
viii. Houghton, Scalia (PC to search car extends to
passenger’s purse?)
01. Rather than applying Acevedo, the ct. says
that the 4th Amen. inquiry into unreasonable
searches and seizures requires looking at:
a. Scalia’s Two-Step
1. Whether the action was
regarded as an unlawful
search or seizure under the
CL when the Amend. was
framed, or (alternatively, if
CL is inconclusive)
2. Evaluate the search and
seizure under traditional
standards of reasonableness
by balancing the competing
interests:
i. Intrusion on the
individual
ii. legitimate gov.
interests.
02. Acevedo is not limited to the driver’s
belongings. Individualized PC is not
necessary in this context (disting. searches of
the person). Hold: Police officers w/ PC to
search a car may inspect passengers’
belongings found in the car that are capable
of concealing the object of the search.
03. Balancing: there is a reduced privacy
expectation in cars and they are subject to
pervasive gov. regulation. Gov. int. is
substantial b/c passengers likely share a
common enterprise.
04. The automobile search exception does not
extend to containers attached to a person (at
least clothing pockets).
05. Mentioned by Prof but not in the text of the
case: Pringle, common enterprise with the
driver.
06. Dissent, Stevens, footnote 3: the court has
never used this two prong test before, wants
rule requiring a warrant or individualized PC
to search passenger belongings.
07. This rule has been extended to RVs, cars on
blocks, etc. Starts small, gets broader.
ix. The inventory exception: when an officer makes a
custodial arrest of an occupant, the police can
conduct an inventory search of the auto. Limited
by Gant.
01. Means: officers that make a custodial arrest
have more power. Provides an additional
incentive to arrest. Goin to impound car =
can make inventory search
B. Arrests
1. Custodial Arrests (note Scalia’s two-step in analyzing
“reasonableness”)
a. Custodial arrests require only probable cause. Unlike
searches, they do not also require exigent
circumstances to support warrantless action. [This
means, theoretically, privacy is valued greater than
liberty, which has obvious socioeconomic implications.]
b. *Modern statutes generally authorize arrest for
misdemeanors w/out a warrant where the offense is
committed in the officer’s presence (& for lim. crimes
such as DV outside the officers presence or where
certain exigencies exist, such as a fleeing suspect). For
felonies, generally they authorize warrantless arrests
based on probable cause.
c. *There must be a jud. determ. of whether arrest met PC
std. w/in 48 hours of arrest (no unreasonable delay).
McLaughlin.
d. *No warantless arrests in the home are permitted.
However, only an arrest warrant is req’d: an arrest
warrant founded on PC implicitly carries w/ it the limited
authority to enter a dwelling in which the suspect lives
when there is reason to believe the suspect is w/in.
(Note an arrest warrant cannot justify the search of the
home of someone other than the arrestee.)
e. An arrest occurs when a reasonable, innocent
person would not feel free to terminate the
encounter and go about his business. O’Connor in
Bostick.
f. Arrests made in public do not need a warrant, as long as
they are based on PC
i. Misdemeanors: PC to believe that crime has been
committed in officer’s presence, and that is the
person who did it.
ii. Felony: just needs to be based on PC.
g. U.S. v. Watson
i. Reaffirms fed. 4th amen. law
ii. “The ancient CL rule that a peace officer was
permitted to arrest without a warrant for a
misdemeanor or felony committed in his presence
as well as for a felony not committed in his
presence if there was a reasonable ground for
making that arrest.”
h. Atwater (seatbelt violation; arrest for minor criminal
offense requires warrant?) Souter
i. If an officer has PC to believe that an individual
has committed even a minor misdemeanor
offense in his presence, he may arrest the
offender w/out violating the 4th Amend. Court
conducts Scalia’s two step approach (from
Houghton):
ii. Souter conducts Scalia’s Two-Step Approach:
01. Would this arrest be allowed at CL?
02. If inconclusive balance intrusion on
individual vs. legit. gov. interests
03. =
a. Need for
1. This arrest would have been
allowed at CL.
2. Need for a bright line rule to
guide police conduct
(administrability) outweighs
Atwater’s liberty int.
iii. Ct. declines to create distinction b/w jailable and
non-jailable offenses.
iv. Puts discretion w/ police, no antecedent
justification required for arrests.
i. Whren, Saclia: A police officer’s motive for making a
traffic stop (and accompanying brief detention) does not
affect the constitutionality of the stop, so long as there
was probable cause to believe that the traffic violation
occurred. No subjective motive of officer. Except: Court
will inquire into the officer’s state of mind if the arrest
was conducted in an extraordinary manner unusually
harmful to an individual’s privacy or physical interest.
j. Steagold P.517
i. An arrest warrant will not validate the search of a
third party’s home. [can they still go in the home
and just not search for anything other than the
person they are supposed to arrest?]
k. Maryland v. Buie
i. When police go in to make an arrest, they may
make a protective sweep in order to identify
people who may be a threat to officer safety.
2. Searches incident to lawful arrest (SITLA)
a. Chimel v. CA (arrest warrant executed at home, subsq.
searched entire house w/out warrant) REACHING
PRINCIPLE.
i. When an arrest is made, it is reasonable for the
arresting officer to search the arrestee’s person
and the area w/in his immediate control –
construing that phrase to mean the area from w/in
which he might gain possession of a weapon or
destructible evidence.
01. This is justified by
a. the need for officer safety and
b. exigency (preservation of evidence).
ii. This is consistent w/ the rationale that the scope
of a search must be strictly tied to and justified by
the circumstances which rendered its initiation
permissible.
iii. Here, the search of the house was unreasonable
(rule prevents general rummaging).
iv. “reachable distance” is still good law, just reined
in by Gant, the issue is:
01. what is it tethered to?
a. Where the arrestee was at the time of
the arrest? Or
b. Where the arrestee was at the time of
the search?
b. The SITLA exception poses greater problems in car
cases.
c. US v. Robinson:
i. SITLAs do not depend on the gravity of the crime
or upon the officers subjective fear, and
ii. SITLA of person is absolute (always reasonable
where arrest is lawful).
iii. The right to arrest gives the officer the right to
frisk
iv. If the officer comes to believe, while patting down,
that there is contraband on the person, does not
limit the scope of the search.
d. MD v. Buie:
i. Officer may as a precautionary matter and
without probable cause or reasonable suspicion,
look in closets and other spaces immediately
adjoining the place of arrest from which an attack
could be immediately launched. (To look in
additional areas, there must be articulable
suspicion that the area swept harbors an
individual posing danger.) Ct. emphasized the
sweep may extend only to a cursory inspection of
spaces where a person may be found.
e. NY v. Belton:
i. When an officer has made a lawful custodial arrest
of the occupant of an automobile, he may, as a
contemporaneous incident of that arrest, search
the entire passenger compartment of that
automobile―including examining the contents of
any containers found there.
f. Thornton v. US
i. The Belton rule controls even when the officer
does not make contact until the person arrested
has left the vehicle (i.e. even if arrest is made
outside vehicle).
ii. Same concerns regarding safety and destruction
of evidence. The danger flows from the fact of the
arrest rather than the proximity or uncertainty
involved.
iii. Only need be a “recent occupant” for the car to
be subject to SITLA.
iv. Scalia concurrence: state int. is far less compelling
where there is no threat to safety or of evidence
loss (as here). Would limit Belton to where it is
reasonable to believe evidence relevant to the
crime of arrest might be found in the vehicle.
g. Gant, Stevens
i. “Under this broad reading of Belton, a vehicle
search would be authorized incident to every
arrest of a recent occupant notwithstanding that
in most cases the vehicle’s passenger
compartment will not be within the arrestee’s
reach at the time of the search. To read Belton as
authorizing a vehicle search incident to every
recent occupant’s arrest would thus untether the
rule from the jurisdictions underlying the Chimel
exception.”
ii. “A rule that gives police the power to conduct
such a search whenever an individual is caught
committing a traffic offense, when there is no
basis for believing evidence of the offense might
be found in the vehicle, creates a serious and
recurring threat to the privacy of countless
individuals.”
iii. Two limiting principles:
01. Officer safety
02. Evidence (protection from destruction)
iv. “Police may search a vehicle incident to a recent
occupant’s arrest only
01. if the arrestee is within reaching distance of
the passenger compartment at the time of
the search [interest in officer safety], or
02. it is reasonable to believe the vehicle
contains evidence of the offense of arrest
[interest in evidence].”
v. Gant reins in Belton, brings it back to Acevedo,
since SITLA restrained to (1) officer safety, and (2)
evidence; but this would hardly happen, b/c when
person is arrested they are placed in the cop car.
Limits to reachable distance, & limited evidence
to that evidence pertaining to the arrest, so it
limits pretextual searches. Gant strips Belton.
3. INVENTORY EXCEPTION (sort of a net that catches what is
missed in SITLA)
a. CO v. Bertine (inventory exception):
i. inventory procedures serve to protect an owner’s
property while it is in the custody of the police, to
insure against claims of lost, stolen, or vandalized
property, and to guard the police from danger.
b. Knowles v. Iowa (speeding stop, issued ticket and
searched; search incident to citation?)
i. While a concern for officer safety may justify a
minimal additional intrusion of ordering the driver
and passengers out of the car, neither of the twin
rationales of SITLA can justify a search incident to
a citation. The brevity of a traffic stop poses a
minimal threat.
ii. Note, however, that the discretionary arrest power
of officers allows an officer to circumvent this
limitation by arresting, searching, and then
rescinding/releasing if nothing is found.
c. Virginia v. Moore
i. Facts:
01. The officers arrest him for driving w/ a
suspended license. Under state law, they
should not have arrested him, under that
state law, it was not an arrestable offense.
02. In the process of arresting him, they found
evidence of cocaine.
ii. Issue: Whether the evidence obtained in this
arrest, b/c it violates the 4th amen. to the
Constitution?
iii. Answer: it does not violate the 4th amen.
Atwater: Can arrest on PC.
iv. What is the impact, that it is not a lawful arrest
under Virginia law.
01. Virginia does/did not apply any exclusionary
rule to uphold the more limited restriction on
arrests. Mapp only applies to Federal/4th
amen.
v. Scalia: the arrest perhaps was not lawful, but it
was constitutional, and there is no suppression
under Mapp. In Virginia, the remedy is sue the
cop, not exclusion.
d. Inventory exception only occurs when they are going to
impound the vehicle, which is expensive, so should
maybe be self-limiting.
4. Reasonableness
a. Increasingly privacy is not protected by the warrant and
probable cause requirements, but rather it is rooted in
the constitutional command that searches/seizures be
reasonable. It is a more contextual inquiry, balancing
the gov’t interest (law enforcement needs) against the
privacy intrusion. Reasonableness is used to define the
probable cause required.
b. Stop & Frisks
i. Terry v. Ohio – J. Warren
01. Facts:
a. two men have pattern of pacing and
looking in window, meet third man;
officer approached and, after getting a
mumbled response, patted down
suspects)
02. Quotes:
a. ** “Regardless of how effective the
[exclusionary] rule may be where
obtaining convictions is an important
objective of the police, it is powerless
to deter invasions of constitutionally
guaranteed rights where the police
either have no interest in prosecuting
or are willing to forgo successful
prosecution in the interest of serving
some other goal.”**
b. The officer ** “must be able to point
to specific and articulable facts
which, taken together w/ rational
inferences from those facts,
reasonably warrant that
intrusion” ** in light of the particular
circumstances. The facts must be
judged against an objective
standard: would the facts available
to the officer at the moment of the
search or seizure warrant a man of
reasonable caution in the belief that
the action taken was appropriate?
c. **“there must be a narrowly drawn
authority to permit a reasonable
search for weapons for the protection
of the police officer, where he has
reason to believe that he is dealing
with an armed and dangerous
individual, regardless of whether he
has probable cause to arrest the
individual for a crime. The officer
need not be absolutely certain that
the individual is armed; the issue is
whether a reasonably prudent man in
the circumstances would be
warranted in the belief that his safety
or that of others was in danger. And
in determining whether the officer
acted reasonably in such
circumstances, due weight must be
given, not to his inchoate and
unparticularized suspicion or “hunch,”
but to the specific reasonable
inferences which he is entitled to draw
from the facts in light of his
experience.”
1. DO NOT LOOK AT THE
SUBJECTIVE INTENT OF THE
OFFICER
03. A “stop” amounts to a “seizure” (restrains
freedom to walk away), and a “frisk” amounts
to a “search.” Nonetheless, this entire rubric
of police conduct – necessarily swift action
predicated upon on-the-spot observations of
the officer on the beat (proactive policing) - is
not subject to the warrant requirement.
Instead, it is subject to the proscription
against “unreasonable” searches and
seizures. This requires balancing the gov. int.
against the intrusion. [1st Doctrine to
dispense w/ both the warrant requirement
and PC requirement.]
04. Balancing: safety of officers (and others)
justifies a limited protective search. Must be
circumscribed by the exigencies which justify
its initiation. Thus it must be limited to that
which is necessary for the discovery of
weapons which might be used to harm the
officer or others nearby, and may realistically
characterized as something less than a full
search.
05. In determining whether the search and
seizure were unreasonable must look at
whether
a. the officer’s action was justified at its
inception, and
b. it was reasonably related in scope to
the circumstances which justified the
interference in the first place.
06. Holding :
a. Where an officer reasonably concludes
in light of his experience
b. That criminal activity may presently
be afoot and
c. Persons w/ whom he is dealing may be
armed and presently dangerous
d. He is entitled, for the protection of
himself and others in the area,
e. To conduct a carefully limited search
of the outer clothing in an attempt to
discover weapons which might be
used to assault him.
f. [Thought they were making a specific,
well-delineated exception to Katz]
07. Won’t individual int. always be trivialized
where balanced against the gov. int.?
08. Terry has been expanded beyond its
rationale, i.e. beyond violent crimes or
instances where officer safety could be
jeopardized, e.g. drug couriers and even
property. Implicates serious problems of
racial discrimination and profiling. Supports
police discretion.
09. Note: still must pay careful attention to
scope, to Terry’s rationales, and to balancing:
when investigative detentions escalate
beyond a Terry stop (i.e. beyond a level of
intrusiveness – either physical, temporal,
locational, etc. – warranted by Terry), they
will require greater justification than
reasonable suspicion (i.e. PC). May look at
police diligence.
10. The court did not think that they would open
the door to lawless or unconstitutional police
behavior. The dissent disagreed.
11. Dissent (Douglas)
a. He believes that PC is required, and
that reasonableness is within this. He
thinks it is outrageous to have a lower
than PC. There will be no antecedent
justification, no review by a neutral
third party. This gives officers more
power to interfere in personal privacy,
more than a magistrate would have.
12. Concur (Harlan)
a. The right to make this kind of seizure
arises only from the circumstances
forcing the encounter. He is
concerned that once the force
encounter justifies, we must give
officer’s the right to frisk for their own
safety.
13. This rule can grow when police are just
interested in investigation, or when they
don’t have PC.
14. Court that reasonableness was a tiny step:
Can default to reasonableness only in the
case of violent crime that is presently afoot.
a. However, the problem is, Terry
progency did not stay limited to
crimes that were dangerous, also did
not stay limited to preventing crime.
ii. Robinson
01. Officer felt a package, not concerned that it
was a weapon. Reached in anyway, turned
into being a cig. Carton containing heroin.
The search did not have to do with the arrest.
02. Robinson still good law, but for how long?
03. Mincey is still good law if have the time, go
get the warrant.
iii. Professor:
01. Prof: it is one thing to let go of the warrant
requirement, but it is quite another to
dispense w/PC. But that is what Terry does.
02. Scale:
a. Innocuous conduct suspicious
conduct PC BRD crim conduct
03. What Terry establishes the police’s right to
interfere in our personal conduct based on
reasonable suspicion.
04. The more we slide away from PC, the less
protection for innocent conduct.
05. Also, reasonableness will be become
subjectivized
06. Reasonableness will only kick in, under terry,
only when encounters are forced.
iv. Standard of “Reasonable Suspicion”
01. Must look at the totality of the circumstances
to determine whether sufficient indicia of
reliability were present. Reasonable
suspicion does not require the same quantity
or content of information as PC, nor does it
need to be as reliable.
a. FL v. JL (anonymous tip alone
sufficient to justify stop and frisk?),
Ginsberg
1. Anon. tip alone seldom
demonstrates the informant’s
basis of knowledge or veracity.
There are situations where,
suitably corroborated, an
anonymous tip will have
sufficient indicia of reliability to
provide reasonable suspicion.
But a physical description is not
enough; the tip must
demonstrate knowledge of
criminal activity. (maybe think
Draper, guy with trenchcoat)
2. “Such an exception would
enable any person seeking to
harass another to set it motion
an intrusive, embarrassing
police search of the targeted
person simply by placing an
anonymous call falsely reporting
the target’s unlawful carriage of
a gun…The 4th amen. is not so
easily satisfied.”
b. Illinois v. Wardlow (patrol through
neighborhood, fled on sight, stop and
frisk), Rehnquist
1. Officer may, consistent w/ 4th,
conduct a brief investigatory
stop when the officer has
reasonable, articulable suspicion
that criminal activity is afoot.
Reasonable suspicion is less
demanding than a probable
cause and requires considerably
less than a preponderance, the
officer must be able to articulate
more than an inchoate and
unparticularized suspicion or
hunch of criminal activity.
2. Characteristics of the location
are relevant but alone cannot
justify. Evasive behavior such
as headlong flight is also a
factor (disting. mere refusal to
cooperate). Inferences about
human behavior permitted. RS
is less than PC but more than a
hunch. Here, high crime area
plus unprovoked flight satisfies
the standard.
3. Dissent/concurrence, Stevens:
i. This fleeing away could be
entirely reasonable
conduct, lots of reasons,
avoiding bullets, etc.
4. Professor: What Wardlow does
i. If it is an arrest, it needs to
be based on PC, but a stop
can be based on less, on
reasonable suspicion, and
in Wardlow they say:
Suspicious conduct can be
determined through the
eyes of the officer, this is
based on a less strict std.
than the one required for a
warrant (PC).
c. *Note: Although individualized
suspicion is necessary, there is no
suspicion required of a specific crime.
v. Terry
01. Terry was the right to prevent armed violent
crime, but, it did not stay that way. Terry’s
progency extended it, especially broadened
into drug crimes.
02. Drug courier profile
a. When does a Terry stop turn into an
arrest. B/c, an arrest still needs PC,
but Terry stops need only reasonable
suspicion.
1. No bright line rule
i. Factors:ii. Brevity of the encounter
iii. The intrusiveness of the
stop
iv. Whether police were
behaving diligently
b. It is common now to couple a Terry
stop with dogs, since that is not a
search, it does not require warrant w/
PC, can use other means in addition to
the Terry stop in establishing PC.
03. Pretextual investigations
a. There is no pretext doctrine in 4th
amen. law enforcement. The
Supreme Court has consistently said
that not going to look at the motives,
just need objective PC.
IX. Police discretion and profiling
A. Racial Profiling:
1. p. 594 “occurs whenever a law enforcement officer questions,
stops, arrests, searches, or otherwise investigates a person b/c
the officer believes that members of that person’s racial or
ethnic group are more likely than the population at large to
commit the sort of crime the officer is investigating.”
a. Profiling: just drop out the ‘racial’ part of the definition.
B. Race as an element of suspicion is at the heart of the debate
concerning racial profiling.
1. As opposed to using race as a characteristic of a specific crime
a. e.g. “The burglar was black”
2. p.597 U.S. Dept. of Justice
a. But, what about Brown v. City of Oneonta?
i. Under the definition, then no, not racial profiling.
(this was the case, where vic. said that a young
black man had robbed her, so they checked out
every single black male student at the local
college, then for every nonwhite male.)
01. This was a questionable use of the police
power.
C. Racial profiling definition from the Portland police: the
inappropriate use of relying on race to make a stop?
D. Exclusion of evidence?
1. Can’t prove improper motive, b/c don’t inquire into the motives
of officers.
2. Suppression of evidence for unreasonable searches?
a. Second principle of Gant: you can keep and use the
evidence of the arrest offense, but nothing else.
i. If you pull people over for a traffic offense, but
other items obtained by search will be
suppressed.
01. This has the potential to limit inappropriate
use of profiling in traffic stops
a. Tremendous potential to limit
misconduct, but the court has not
stated where they stand on this issue.
E. Equal Protection
1. p.599
a. subjective intentions play no role in PC-4th amen.
analysis. This is a subject for the Equal Protection
Clause.
i. Court says that we will not go here in Whren.
2. People v. Kail
a. Prostitute and bike bell
F. Chicago v. Morales
1. Statute was void for vagueness (Due Process)
a. Two independent grounds for void for vagueness:
i. Lack of notice;
ii. When they authorize arbitrary and potentially
discriminatory enforcement
X. Special Needs (regulatory or administrative searches; roadblocks)
A. *The ct. has used a similar int. balancing approach (reasonableness)
to uphold administrative inspections, regulatory searches, and other
kinds of gov. action involving “special needs” beyond those found in
the typical law enforcement context.
B. *Ct. had by now decoupled the two clauses of the 4th Amend.
Danger that this doctrine will be used as a pretext for general
rummaging which would vitiate the 4th Amend., which is designed to
reduce police/government discretion.
C. *Intrusiveness depends not just on the type of search but also how
it is executed (level of restraint, etc.). The court is looking for
limiting principles.
D. > Reasonableness standard has been applied to e.g., principal
searching purse of student; P.O.’s search of probationer’s home;
employer’s work-related search of employee’s desk and files.
E. Scale: Warrant+PC PC reasonable suspicion reasonableness
F. Roadblocks
1. Indianapolis v. Edmond, O’Connor (vehicle checkpoint for drug
interdiction; each checkpoint stopped predetermined number of
vehicles; uniform standards until particularized suspicion
develops; no discretion to stop out of sequence, duration of
stop is couple of minutes tops)
a. The exception for individualized suspicion is narrow.
Conducting suspicionless checkpoints cannot be
justified by an int. in ordinary criminal wrongdoing.
Exceptions have only been recognized where in special
contexts (health/safety/immigration) where the interest
and the practice were closely related.
b. Checkpoint programs can never be justified by a
general int. in crime control (i.e. detecting evidence of
ordinary criminal wrongdoing, as here.
c. **(on test) Some exigencies could permit an exception,
e.g. emergency such as an imminent terrorist attack or
a fugitive likely to flee by a particular route.
i. ”Of course, there are circumstances that may
justify a law enforcement checkpoint where the
primary purpose would otherwise, but for some
emergency, relate to ordinary crime control. For
example, appropriately tailored roadblock to
thwart an imminent terrorist attack or to catch a
dangerous criminal who is likely to flee by way of
a particular route. The exigencies created by
these scenarios are far removed from the
circumstances under which authorities might
simply stop cars as a matter of course.”
d. Look to primary purpose to sift abusive gov. conduct
from that which is lawful. Balancing.
e. There is no pretext doctrine, do not look into the
subjective intent of the officers, but programmatic
purpose may be looked into.
f. “We decline to suspend the usual requirement of
individualized suspicion where the police seek to
employ a checkpoint primarily for the ordinary
enterprise of investigating crimes. We cannot sanction
stops justified only by the generalized and ever-present
possibility that interrogation and inspection may reveal
that any given motorist has committed some crime.”
G. Illinois v. Lidster (hwy checkpoint to ask about recent hit and run,
used to issue a DUI) (used for other than general crime control
purposes), Breyer
1. Reasonableness balancing: look at context –
a. Gravity of public concerns served by the seizure
i. Here, serious crime investigation.
b. Degree to which the seizure advances the public int.
i. Stop must be appropriately tailored to advance
the pub. int.
c. Severity of interference w/ individual liberty
i. Look at both subjective and objective components
of intrusion.
2. Is this case distinguishable from a general int. in crime control?
3. Note: the gov. has broad authority to conduct border searches.
H. Non-Police Searches
1. The court has found that special needs exist in the public
school context, so that searches are only subjected to a
reasonableness standard, under all the circumstances. Ct.
upheld even a suspicionless drug testing of school athletes,
taking into account: the decreased expectation of privacy, the
relative unobtrusiveness of the search, and the severity of the
need met. (Suspicionless drug testing is not always upheld –
the special need must be substantial.)
2. Ferguson v. Charleston (pub. hospital, urine tests for maternity
patients suspected of using cocaine, adopted policy of
cooperating/reporting for criminal prosecution, policy made no
reference to a change in the prenatal care of patients/newborns
based on info), Stevens
a. Here the urine test was a “search.” There was no PC,
no RS, and no consent. To determine whether it “fits
w/in that closely guarded category of permissible
suspicionless searches,” must employ balancing of the
intrusion against the asserted special needs.
b. Disting. cases where drug tests upheld for purposes of:
employees involved in train accidents; customs service