Criminal Procedure Outline

Criminal Procedure Outline

- Course examines the battle between police/government zeal and the need of the public to maintain privacy.

4 th Amendment :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.

Katz v. United States, Footnote #5:“Virtually every government action interferes with personal privacy to come degree. The question is, in that case, whether the intrusion violates the Constitution.”

What is a “ search ” for 4 th Amendment purposes ?

Basic 4 th Amendment Search Expectation of Privacy Test ( Katz ) : Did a Search take place?1. Whether the person has exhibited an actual subjective expectation of privacy

(whether he has shown that he wants to preserve something as private), and2. Whether the individual’s subjective expectation of privacy is one that society is

prepared to recognize as reasonable (Is there a reasonable expectation of privacy here?).

- Physical intrusion is NOT a requirement.- An electronic intrusion can still create a violation of privacy.- Even a place that is public can have a privacy interest, depending on the individual

case.- 4th Amendment protects people, not places.

White: Voluntary communication to informant is not a search.- Assumption of Risk: What a person knowingly exposes to the public, even in his

home or office, is not subject to 4th Amendment. - Different because, even though Katz told his information to someone else and a 3rd

party taped it, White is not a search because he told a confidential informant.

Hypo: Even when undercover police misleads a criminal, misplaced trust is not protected by the 4th Amendment.

Hypo: Even if the person is paranoid and has no actual expectation of privacy, the person still can have an expectation of privacy based on what society deems reasonable.

Katz v. United States: The United States is prosecuting an illegal gambler, Katz, for “transmitting wagering information by telephone,” when the main evidence against him

was gathered by the FBI attaching a recording device to the outside of a public telephone booth where he placed his calls.- Previous to this case : Intrusion is necessary in order to have an unlawful.- After this case : Court protects the right to privacy.- Rule : The 4th Amendment protects people, not places.- Katz expected privacy of sound, not sight. This was violated without penetration, so

penetration is not necessary.- Physical presence or intrusion can not make a case turn one way or another.- Rule : When you are exposing something to the public, expectation of privacy does

not exist.- Katz : Does not show that wiretapping is illegal, just that it must be done reasonably.Dissent (Justice Black):- The 4th Amendment is being rewritten in order to “keep up with the times.”- The Amendment speaks to tangible things, not sounds.- Eavesdropping is not tangible, and, thus does not apply to the 4th Amendment.

United States v. White: The State is prosecuting a drug dealer, James White, on two separate indictments alleging various illegal narcotics transactions, but their main evidence was acquired when the drug dealer spoke candidly about his crimes with a government informant, Harvey Jackson.- The 4th Amendment does not bar from evidence the testimony of government agents

regarding conversations between the drug dealer and a government informant when the informant consented to the transmitting and eavesdropping, even though the drug dealer thought he was speaking in confidence.

- 3 rd Party Divulging Information Rule : Once a party divulges information to another, there is no constitutional protection against that person divulging it to another.

o The 2 parties trusted each other, and one party gave consent to the police about listening in, while the conversation was going on.

o White knowingly divulged information to another person, and his bad judgment should not be afforded protection.

Why does White lose his right to privacy (Lawson)?- Conversations with known individuals will not be protected.

o The speaker waives his expectation to privacy when he makes his private information public.

- White divulged his information to the public!- White had an expectation of privacy, but society sees information being made public

as something that can not reasonably be expected to kept private from everyone else.

- Violated Trust Rule : Hoffa v. US – However strongly a Δ may trust an apparent colleague, his expectations are not protected by the 4th Amendment when it turns out that the colleague is a government agent who communicated with authorities.

o No warrant is necessary in these circumstances.o No warrant is needed either when Government sends to Δ’s house a secret

agent who conceals his identity and makes a purchase of narcotics from the Δ.

o This extends to recording or delivers the oral evidence with electronic equipment.

- Officer With a Concealed Identity Rule :o A police agent who conceals his police identity may write down his

conversations for official use without a warrant without violating the 4th Amendment.

o Also, there is no violation of the 4th Amendment if electronic equipment is used to record it, or the agent carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere, or to other agents monitoring it.

- Policy : We should not erect constitutional barriers to relevant evidence that is accurate and reliable. TAPING, not a snitch, is the most accurate way to get evidence.

Smith v. Maryland: State is prosecuting a robber, Smith, for robbery when Smith made a threatening phone call from his house to the victim after robbing the victim, and the telephone company installed a pen register to catch the Δ upon the police’s request.- A pen registry is not a search because:

o No reasonable expectation of privacy because number is given to a known 3rd party (the phone company).

o Δ Assumed the Risk Court relied on the Bank Deposit Case, where no expectation of

privacy exists when you give your information to a 3rd person.o Government intrusion characterized: Majority – just numbers dialed;

Minority – numbers dialed are equivalent to a conversation.- Search Rule : A “Search” takes place within the meaning of the 4th Amendment when:

1. An individual has exhibited an actual subjective expectation of privacy (whether he has shown that he wants to preserve something as private), and

a. No, because the number was made public, since a phone user knows that the phone company can get access to the numbers dialed. They are regularly used to track long distance, etc.

b. He may have expected to keep the content of his call private, but not the number dialed.

2. Whether the individual’s subjective expectation of privacy is some that society is prepared to recognize as reasonable (Whether the individual’s expectation, viewed objectively, is justifiable under the circumstances).

a. It is firmly held that a Δ can not expect for information he turns over to a 3rd party to be secretly held.

b. Δ “assumed the risk of disclosure.” - This Case differs from Katz: Pen registers do not acquire the contents of

conversations, or even tell if a conversation took place.Dissent (Marshall):- One who assumes that his phone company will get private information about him has

an expectation that this will not be divulged to 3rd parties for other purposes.

- How could you assume the risk of disclosure when you have no control over the taking of your number by the phone company? There should be a distinction between disclosure and having no real choice, like in this case.

- This threat of getting numbers without a warrant will extend to discovering reporters’ secret sources and other sensitive areas.

- Law enforcement should thus be required to get a warrant.

Notes Rules:

- Variables Considered in Deciding Reasonableness of Privacy Expectations :o Voluntary disclosure by a 3rd party,o Failure to take precautions to safeguard one’s privacy,o Public exposure of one’s activities,o Whether compromising the privacy requirement would compromise nothing

that society has any interest in protecting.- Rule : When a package is opened by a private party and the government is notified of

its contents, it is not a search to reopen it, since nothing new is being looked for.- Rule : Exercising a field test on something is also not a search, since it is just to verify

what the substance is.

Curtilage and the Search Rule:

Curtilage Definition: Outside area of a home, but extension of the intimate activities of the home.

Dunn Factors to Decide Whether Land is “Curtilage”: Curtilage (land considered part of the home) is defined by:

1. area’s proximity to the home,2. the existence of an enclosure around the area,3. the nature of the use to which the area is put,4. the precautions taken to exclude others from the area.

Oliver: No reasonable expectation of privacy attaches to open fields.

Dunn: Common law distinguishes curtilage from open fields. Curtilage is protected and open fields are not, but the line between the two is minimal.

California v. Ciraolo: The State is prosecuting marijuana-grower, Ciraolo, for growing marijuana, but obtained the proof needed for probable cause from flying a plane over his backyard to see the marijuana growing without a search warrant.- Rule : A person does not have a reasonable expectation of privacy when he puts up a

fence around his yard, but police observe, with the naked eye, that he is committing illegal acts in his backyard from a low-flying airplane.

- Home and curtilage are generally protected, but they are not protected from plain view from a public area.

The 2 part test from Katz is tested in this case:1. The Δ tried to keep his actions private, but it is disputable whether this included from

the sky, since his fence did not have a roof, BUT REGARDLESS,a. Plane was in public navigable airspace,b. Unenhanced naked eye could see this, and the Court ignored that the officer

was trained in detecting marijuana, and that an average person may not have recognized it as marijuana.

c. Not protected because ANYONE could have seen it.2. Part 2 of the test is “whether the government’s intrusion infringes upon the personal

and societal values protected by the 4th Amendment.”a. Area within the property of the Δ is not automatically barred from police

observation.b. Even if he has taken some kind of measure to stop vision of the property, it is

not off limits if it is freely visible.c. In this case, any member of the public flying in the airspace, who glanced

down, could have seen everything the officers observed BY THE NAKED EYE.

d. Therefore, his expectation of privacy is unreasonable.

Hypo: If you can see weed growing in a window from the street, this is not protected because there is no expectation of privacy when something is exposed to the public.

United States v. Knotts: Placing a radio transmitter on something is not a search, because you are only learning the movements of a car or truck, which could be seen with the naked eye on public roadways, anyway.

Kyllo v. United States: US is prosecuting marijuana grower, Kyllo, for growing marijuana but obtained their main evidence, a thermal image picture showing heating discrepancies consistent with marijuana growing, without a warrant.- Confidential informant said weed being grown, cops try to corroborate and find

evidence of it due to high electricity bills, and then used thermal imaging scan which showed that there was too much heat escaping.

- Thermal imaging shows heat emanating from the house, but this leads to an inference that it is hot inside.

- Sense-Enhancing Technology Search Rule ( Kyllo ) : Obtaining by sense-enhancing technology any information regarding the interior of the home that could not have been obtained without physical intrusion into a constitutionally protected area constitutes a search – at least where the technology in question is not in general public use.

o Since a powerful microphone could pick up the sound emanating from outside and across the street, this case must come out this was as a preemptive measure against those other types of technological intrusions also.

o Invading the home even a fraction of an inch is unacceptable.Dissent:

- Inferences drawn from the public domain and “through the wall surveillance” are completely different and should be treated as so.

- This is unlike a technological x-ray, which is really through the wall.- Use of the senses, like seeing snow melt faster on one side of the house, is not a

search, so why would measuring the heat emitted.- The majority opinion is stupid since it only applies to technology not in public use.

Problem 1-4:Issues: - Whether the police giving the radio user tapes and asking him to tape the neighbor

makes him an agent of the police (like the pen register case). - Whether the waves leaving the house were made available to the public.Outcome: Search.- There is a reasonable expectation of privacy that private telephone conversations will

be private.- Technology should not be used to obtain information when the technology is not

generally available to the public. (Kyllo)- The snoop is an agent of the police and thus made an illegal search.

Hypo: Jacobson: Is there a correlation between having a dog sniff and thermal imaging? The dog sniff ONLY covers illegal activity, which has no reasonable expectation of privacy, but thermal imaging can also be linked to other types of legal activity.

Chapter 1 – In Book Problems:2. Apply the Dunn factors!Issues: - Whether entering the communal portion of a person’s property in order to see was an

illegal search.- Whether the fact that the drugs were being bagged in view of other tenants was

sufficient to say that there was no reasonable expectation of privacy.- Whether the fact that a participant in the use of the building called the police

constituted a valid invitation onto the property, although the informant did not invite them inside the property.

Outcome: Search.- It is a search because the officers entered onto private property without anyone’s

express invitation.- The activities were not visible from a public area, so the Δs had a reasonable

expectation of privacy that no one from the outside could see them.- The police were never invited inside.

Compare with 1-11 – officers trespassed on neighbor’s property11.Outcome: Search.- When Yates stepped onto the back porch, he violated the 4th Amendment, because

even one step onto someone’s property without a warrant or some kind of real reason is a search. He only smelled the marijuana when stepping onto it.

- Also, seeing the plants growing in the backyard from a neighbor’s land is a violation of the neighbor’s rights to not have intrusion on his land in order to search another’s land. It does not seem to violate the marijuana grower’s search rights.

4. Only government intrusion, NOT just a nosy neighbor, can set off the 4th amendment, UNLESS the private party is an agent of the government.Issues: - Whether the police giving the radio user tapes and asking him to tape the neighbor

makes him an agent of the police (like the pen register case). - Whether the waves leaving the house were made available to the public.Outcome: Search.- There is a reasonable expectation of privacy that private telephone conversations will

be private.- Technology should not be used to obtain information when the technology is not

generally available to the public. (Kyllo)- The snoop is an agent of the police and thus made an illegal search

6. No reasonable expectation of privacy when garbage is on the curb.Case this comes from is:California v. Greenwood: 486 US 35 (1988) – no reasonable expectation of privacy, and abandonment issue.- But if the garbage is on the curtilage, it may still be abandoned, but if not it may still

be on the person’s property.- Abandonment, therefore, can also make it fair game.Issues: - Whether the space between the garage doors of Red and the neighbor’s townhouses is

considered curtilage for 4th amendment purposes.Outcome: Search.- Curtilage is anything intimately associated with the home, so as to be considered part

of the home. The officers had to step foot on Red’s yard to get the garbage, so this one step would be enough to allow a Ciraolo type violation.

9. Curtilage issue, but still a dog sniff case. Majority opinion is that a dog sniff IS NOT A SEARCH. Argument whether the hallway of an apartment building is a search.- depends on whether hallway is locked, etc.- dog sniff is ONLY smelling the absence or presence of contraband.Issues: - Whether a dog can be used to alert to drugs from outside an apartment when the

officer had to enter into the apartment hallway for the dog to smell.- Whether the hallway counts as part of the house. Not addressed because not enough

facts given. Outcome: Search.- If I smoke marijuana in my apartment and my neighbor smells it, calls the police, the

officer comes in and smells it, he did not search my house, but my negligently letting

the smell become public allowed him probable cause. The dog is just sensing the smell that was allowed to be public.

- This is similar to the Kyllo case, and should go the other way based on that case, since drug dogs are not available to the general public, but I agreed with the dissent.

- Also, entering the hallway seems like a violation of the homestead.

1-10: - No Search. Likely no subjective expectation of privacy since it is public and audible

to the naked ear, or reasonable expectation of privacy since there were cameras and people all around.

- In the real case…Court found NO SEARCH. No actual subjective expectation of privacy, since public venue and other people could have heard. No evidence the mourners took any precautions to hide what they were saying.

1-11:- Consider the Dunn factors about Curtilage.- Court found No Search to go to back door.

o Focused on “clear path to back door, no shrubbery preventing access to the back, public could easily access the back door.”

o DISSENT thought curtilage is an extension of the home, and the purpose of curtilage is that it is a buffer zone between the house and the public.

1. area’s proximity to the home,2. the existence of an enclosure around the area,3. the nature of the use to which the area is put,4. the precautions taken to exclude others from the area.

Chapter 2: Unreasonableness and the Probable Cause Requirement

- 4 th Amendment Requires : “No warrant shall issue but upon Probable Cause.”o Required for arrest warrant or search warrant.

- Probable cause is an essential precondition for a valid warrant to search or seize.

Probable Cause to Search Definition: Probable Cause to search “exists if the facts and circumstances within the officers’ knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an item subject to seizure will be found in the place to be searched.”

o Looking for SPECIFIC items in a SPECIFIC place- Probable cause to search an area demands that there be a “sufficient likelihood” that :

1. something that is properly subject to seizure by the government or evidence of a crime

2. is presently (so not ‘too stale’)3. in the specific place to be searched.

- Probable cause to search can “go stale,” since the probable cause would become less likely, since the object being searched for could be moved.

- Particular time to execute a warrant is “fresh probable cause.”

Probable Cause to Arrest Definition: Facts and circumstances in the officer’s knowledge and of which they have reasonably trustworthy information are sufficient to warrant a man of reasonable caution that a specific person is committing or is about to commit an offense.- Probable cause to arrest does not get stale, since you have knowledge that a specific

person committed a crime.

Is information reliable enough to have probable cause to search?

Aguilar-Spinelli Test for Determining Probable Cause (OVERRULING the Draper Totality of the Circumstances Test, which is later reinstated through Gates , but takes these two factors into consideration):

1. Basis of Knowledge : Application must set forth any of the “underlying circumstances” necessary for the judge to independently decide the validity of the allegations against the Δ (informant must validate how he gained the knowledge), AND

2. Veracity of Information/Informant : The claim against the Δ must be shown “credible” or “reliable.”

a. This can be met either by past accuracy of the informant, or obvious credibility like in Draper, where the informant is accurate on everything else.

Draper v. United States (Totality of the Circumstances Test to Search a Person – Overruled by Spinelli): Known informant gave SPECIFIC information that Draper would be carrying heroin. Informant particularly detailed Draper’s physical appearance, the clothes, tan bag he would carry, that he would be getting off a train Sept. 8 or 9, and that he would be walking fast. The Cops arrested him, with him having the extremely accurate information, and found the Heroin.- Informant was could not show how he knew, or that he had been specifically

knowledgeable in the past. BUT he gave information in this case that was reliable, so, based on the totality of the circumstances, it is acceptable.

- Hearsay can be the basis of a finding of probable cause.- The test is that:

o The information came from a past reliable informant, ando The excellent accuracy of everything gave “reasonable grounds” that the drug

claim would be true also.- The Court found that there was probable cause.

Spinelli v. United States (Eliminates Totality Test for these Two Factors): Reliable informant told officers that Spinelli was conducting gambling activities over a phone line of a certain number. The officers checked the phone line and it was the same number, under a different name. Spinelli was observed entering the building in question and the apartment. The FBI then got a warrant, arrested him, and saw the allegations were true.

- Probable cause for a warrant can be established when a reliable informant’s informs about the activities, his information about a phone number used by the Δ was verified, and the Δ was followed to the alleged location of the activities, and was a known gambling offender.

- Rule : Police officer is not a neutral party. Neither is a confidential informant. No support for the police statement “known gambling offender” is not sufficient to establish probable cause, or for the “tip” the informant gave.

o Must tell judge why the informant is reliable.- Case reversed for the Δ, on the finding there was no probable cause, BECAUSE,

based on the Aguilar-Spinelli test, there was no (1) basis given for the knowledge AND (2) veracity (reliability) of the statement.

o The officer swore that his informant was reliable, but he did not see any evidence. The tip does not give the underlying circumstances from which the judge could tell the Δ was offending. It is just a blanket statement that he was doing so, and the specific information could have been gathered at a bar. This differs from Draper.

Illinois v. Gates (Reinstates the Totality Test, but Considers the Two Factors Together): State is prosecuting the Gates for drug violations when they found out about the illicit activities and detailed plans through an anonymous source, and found drugs and weapons in the family’s house.- Tip is not 100% accurate, and the source is anonymous, but the Court still found

probable cause.- Gates Test : Based decision back on “Totality of the Circumstances,” but considering

the Spinelli Test.o Anonymous letter gave the officers enough information to CORROBERATE

the tip. Officers surveillance of conformance to the alleged plot was enough. Common sense approach leads to “probable cause” that the illicit

activity is also going on.o The evidence does not have to prove a crime, just be enough to have

“probable cause” that a crime is being committed.- A “Totality of the Circumstances” Test should be used, rather than a rigid,

excessively technical, two prong analysis. o This is because probable cause is a fluid concept, and not readily reduced to a

rigid set of rules. o It allows a balanced assessment of the relative weights of all the various

indicia of reliability attending an informant's tip. - Very strong evidence as to one prong can make up for the weakness on the other

prong, so they simply look at the totality and from all that info the magistrate can decide whether or not this informant has provided reasonably trustworthy information.

o Here, the detail in the letter seemed to suggest first hand knowledge.

Maryland v. Pringle: Yes, there was probable cause to arrest a passenger in a car when there was probable cause to believe that a felony narcotics violation had been committed by someone in the vehicle.

o It was an “entirely reasonable inference” to find that any or all three riders knew of and exercised control over the cocaine.

- State Courts still may apply the Aguilar-Spinelli Test since they are free to interpret their State’s version of the 4th Amendment however they want.

Whren v. United States: State prosecuted and convicted Whren for drug violations when he was stopped in the car when officers saw them violating traffic laws and, upon being pulled over, the officer saw him holding crack, but the Δs contend that the officers used the traffic violation as a false pretext.- Plainclothes police officers spotted a vehicle that stopped at a stop sign for unusually

long time and after the officers turned back their vehicles, the vehicle turned without a turn signal at high speed. 

- The officers stopped the truck and spotted two large plastic bags that contained crack cocaine in Whren’s hands.

- Whren’s Subjective Intent Does Not Matter Rule : The actual subjective intent of the officers does not matter, just that there was an objective violation of some law that establishes “probable cause” for the person to be stopped.

o Subjective intentions of an officer in stopping someone for a crime play no role in ordinary, probable-cause 4th Amendment analysis. 

o Also, it would be unreasonable to place judges in the shoes of the police officers because police practices vary from place to place. 

o Therefore, where police has probable cause to believe that a motorist has violated a traffic law, a stop and temporary seizure may be conducted and this stop does not become unconstitutional just because the officer has some hidden subjective purpose.

Video that Relates to Whren v. United States:- Racial profiling video- Whren Standard dramatically affects all people because ALL legal police stops,

regardless of the reasons for stopping someone is a pretext to search them.

Remember: Know problem 2-6 from end of Chapter 2

Chapter 3: Unreasonableness and the Warrant Requirement

Introduction:- 4th Amendment does not explicitly demand a warrant to search or seize.

o 2nd Clause designed to prevent the threat and eliminate abuses generated by general warrants (warrants that allows searches for anything, not describing what one is looking for) and writs of assistance.

o 4th Amendment explicitly demands “probable cause, supported by Oath or affirmation” as a prerequisite for the issuance of a warrant.

o Warrants must “particularly describe the place to be searched, and the persons or things to be seized.”

o Unbiased 3rd party (judge or magistrate) decides whether there is sufficient probable cause to merit granting a warrant.

The Warrant Requirement and Searches of Persons, Houses, Papers, and Effects:

Johnson v. United States: Police entered Δ’s apartment without a warrant or true consent, when they knocked after smelling opium burning inside, since they said they were coming in and searching. They did not ask.- The police violated the Δ’s rights to protection from unreasonable search and seizure

when she let the police into her HOME only after they identified themselves as officers, but did not expressly request entry, seemingly demanding it.

- No reason is offered for not obtaining a search warrant except the inconvenience to the officers and some slight delay necessary to prepare papers and present the evidence to a judge. This is not a good enough reason to bypass the constitutional requirement.

- Searches conducted outside the judicial process, without approval by a judge (warrant), are per se unreasonable under the 4th Amendment (subject only to the few exceptions). Same reasoning from Katz.

The Warrant Requirement and Seizures of Persons:

United States v. Wilson: Government is prosecuting Wilson for mail tampering when he was arrested without a warrant by a Postal Service inspector, pursuant to a Statute that only requires probable cause to make an arrest.- Congress specifically gave the power to arrest without a warrant in a statute when

certain circumstances arose.- Felony Arrest Rule : Officers can arrest someone suspected of a felony based only on

whether there was probable cause, not requiring a warrant.- Enforcement Agency Arrest Rule : A warrant is NOT needed to make an arrest when

a Statute specifically grants the right for an enforcement agency to make an arrest only on the basis of probable cause.

o Different from Johnson : Occurred in public, not the home, and was an arrest, not a search.

o Arrest is more immediate, but searches are more invasive.o 4th amendment not worried about abuse in arrests, just in searches, since

general warrants were what was being protected against.Dissent:- The arrest was fine, because of the “exigent-circumstances” exception, but finding

that no warrant is necessary because of historical reasons flies in the face of the constitution, since there is no reason the 4th amendment warrant requirement does not apply to arrests.

Requirements for Warrantless Arrests Rule - Wilson: Probable cause must be shown:1. Felony committed or to be committed, and

2. Committed in public.- Law still prefers warrants.

Prompt Judicial Determination of Probable Cause Rules:- Gerstein v. Pugh : 4th Amendment requires judicial determination of probable cause

as a prerequisite to extended restraint on liberty after arrest.- County of Riverside v. McLaughlin : “Prompt” determination is 2 days, excluding

holidays and weekends.o Scalia’s dissent : 24 hours is enough.

Atwater v. City of Lago Vista: Seatbelt law violator, Atwater, is suing the City of Lago Vista for violating her 4th Amendment rights to be free from unreasonable seizure, and seeking compensatory and punitive damages, when she was arrested after admittedly committed a misdemeanor in the presence of an officer by allowing her small children to ride without a seatbelt in the front seat of her truck.- Arrest for Any Misdemeanor or Felony Violation : The Fourth Amendment allows a

warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine, so long as the minor violation was committed in the officer’s presence. Probable cause is only enough to arrest for a felony.

- Rule : The standard of probable cause “applies to all arrests, without the need to ‘balance’ the interests and circumstances involved in particular situations.” 

o If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.

- Л's claim for creating a modern arrest rule that requires more than probable cause, namely a reasonably foreseeable problem with the Δ fleeing or not showing up for trial, or being dangerous to society, would create too much litigation, and is not a good idea.

- This arrest was not made in an “extraordinary manner, usually harmful to privacy or physical interests, so it should be allowed.

Dissent:  - Custodial arrests are not reasonable in every circumstance.  - Police officers should not have a constitutional carte blanche to arrest whenever there

is probable cause to believe a fine-only misdemeanor has been committed – such would be irreconcilable with the Fourth Amendment’s command that seizures be reasonable.

- Proposed rule : Make the officers point to facts that reasonably show why the Δ was arrested when it is a non-violent/fine misdemeanor.

Hypo: If the officer just tells the judge something that should be in the warrant, that can not be considered in later determining whether there was probable cause, since people could lie.- All facts have to be in the affidavit for probable cause.

Atwater Stands for: “Officer can arrest for a minor offense committed in his presence.”

o Harm was not severe considering her conduct, depending on how you define her conduct.

Atwater Hypos:- If misdemeanor not committed in presence of officer, but probable cause, officer

CANNOT arrest.- If felony not committed in presence of officer, but probable cause, officer CAN

arrest.

Warrant Affidavit Hypo: If the officer merely tells the judge about something that should be in the warrant, that oral information cannot be considered in later determining whether there was probable cause, since officers and judges could lie.- All facts have to be in the affidavit for probable cause.

The Issuance, Content, and Execution of Warrants

Andresen v. Maryland (Land Sale Paper-Fraud Case: Warrant must be particular so the officers do not extend past their authority. Particularity is a sliding scale based on the individual case facts): Fraudulent real estate lawyer is suing the State for violating his 4th Amendment rights when the warrant specifically stated what documents could be taken, although the final clause was extremely vague, and seemed all encompassing.- Overbroad language is problematic since it can equate to a general warrant.- Also, officers need a guideline when searching, so if the warrant is overbroad, it does

not guide the searching officers properly.- Facts are important in assessing the reasonableness of each warrant.

o In this white-collar crime, taking so much paper is not unreasonable since it is tough to find the pertinent papers.

o Also, taking a long time to execute the warrant (3 months in this case), does not necessarily render the warrant stale.

RULE: only needs to reasonably lead to finding the evidence sought in the location it is sought.

Groh v. Ramirez:o Warrant had no specifics on it, but the application to the magistrate was very

specific.o Supreme court held it was impermissible based on the 4th amendment, but

COULD have been permissible if it incorporated the affidavit by reference.

Maryland v. Garrison (Honest mistaken search case. Police not looking for Garrison, searched his apartment by accident): State prosecuted Garrison for violating the drug laws by having heroin when they searched his apartment by mistake. The officers found heroin, money and drug paraphanalea in Garrison’s apartment, but when they realized there were two apartments, they immediately stopped searching and left the apartment.

o (Lawson: Great case to go either way on) .- Mistaken Search Rule : We must judge the constitutionality of the police conduct in

light of the information available to the police at the time they acted.

o Police are allowed to make reasonable mistakes.- Rule : Just as discovery of contraband cannot validate a warrant invalid when issued,

it is equally clear that the discovery of facts demonstrating that a valid warrant was unnecessarily broad does not retroactively invalidate a warrant.

- The issuance of a warrant that mistakenly only stated “third floor apartment,” when two existed, making it retroactively too broad, did not make the warrant invalid; and,

- The execution of the mistaken warrant did not violate the Δ’s constitutional right to be secure in his home, since it was reasonable to believe it was correct.

Dissent:- Particularity of Description Requirement : Satisfied where the description is such that

the officer with a search warrant can with reasonable effort ascertain and identify the place intended.

- The search was definitely unreasonable because the officers could have looked at the mailbox to see how many people lived in the apartment. They did not; they failed.

o Lawson : Apartments are often merged in Florida, so why not here…

Officers aren’t bound to investigate the BEST way Rule (Lawson):- Even though there is a better way to investigate, the officers are not bound to do so in

this case.- This standard allows for more broad searches in multi-family dwellings, which are

more often inhabited by MINORITIES.

Warrant Notes:- Probable cause supported by a warrant cannot be invalidated by a showing only that

it was mistaken.

- Warrant is subject to 4th amendment challenges if the officer supplying the basis for the warrant intentionally or recklessly furnishes false information.

Franks v. Delaware: It is permissible to challenge the truthfulness of an affidavit in court.- Δ must first substantially show that the officer acted by “making a false statement

knowingly and intentionally, or with reckless disregard for the truth, AND it must be necessary to the finding of probable cause.”

Warrant must be issued by a “ neutral and detached magistrate ” :- Attorney general ruled to NOT be able to constitutionally issue warrants.- Magistrate cannot receive money for issuance, but not for non-issuance.- Magistrate does not need to be a trained lawyer (clerk is enough), but must be trained.

Hell’s Angels v. San Jose: 9 th Circuit Case Handout :- Officers shot the gang members’ dogs. They knew of dogs ahead of time, but did not

come up with a plan. This was unreasonable. Also, warrant allowed for taking “any evidence of gang affiliation.” So they took truckloads of evidence – anything with

- Excessive Destruction of Property Rule : Warrants should not be executed through excessive destruction of property.

o Like the door case, where reasonable opportunity to open it needs to be given, animal control should have come with the police.

o Officers argued that “stealth” was necessary.- Excessive Destruction of Property when Surprised Rule : If officers are surprised at

the scene, they can act more excessively.

Knock and Announce Rule: Gone over by quizzing, not in class:

Wilson v. Arkansas: Wilson, Drug Dealer, sold marijuana to a police informant on different occasions and even threatened to kill the informant with a gun if he turned out to be working for the police. The police officers used this evidence to obtain a warrant to search the petitioner's house and arrest the petitioner and her friend. When the officers arrived at Wilson's house, the front door was wide open and the officer opened the unlocked screen door and made an entry while announcing at the same time that they were from the police department and they had a warrant. The petitioner was found in the restroom where she was trying to flush down marijuana and she was arrested. Wilson filed a motion to suppress the evidence based on the claim that the officers did not knock and announce their presence before entering the house.- Knock and Announce Rule : It is required to “knock and announce” that law

enforcement was entering the home when the police arrived at a house with a search warrant.

- This knock and announce principle is not an inflexible requirement which applies to every situation.

o For example, if a prisoner escapes from jail and hides in his home, the police officers do not have to knock and ask the prisoner to open the door to his house.

o Also, if there is a risk that evidence will be destroyed if the police knocked and announced, then the officers do not have to follow this rule.

- Therefore, the court ruled that unless these exigent circumstances exist, the police officers are required to knock and announce their presence before breaking into the houses of suspected criminals

- To “knock and announce” is part of the reasonableness of a reasonable search and seizure of the 4th amendment.

General Categories that justify exemption from knock and announce requirements:

Richards v. Wisconsin: Supreme Court overruled per se exception to knock and announce rule for felony drug investigations.- Two reasons : Substantial overgeneralization and can easily be applied to everything,

thus rendering the knock and announce rule meaningless.

What kind of dangers justify dispensing with the requirement?- Police must have reasonable suspicion that, under those circumstances, it would be:

o Dangerous or futile, OR

o Inhibit the effective investigation of the crime (like by allowing destruction of evidence).

United States v. Ramirez: It does not violate the 4th amendment to destroy property (ie. a window) when entering without meeting the “knock and announce” rule, although excessive or unnecessary destruction of property violates the 4th amendment, although it does not make the fruits of the search subject to suppression.

United States v. Banks: Officers broke down the door of Banks’ small apartment after “knocking and announcing,” but receiving no response in 15-20 seconds, since Banks was in the shower. They found cocaine and he claimed they violated the 4th, and filed a motion to suppress.- Supreme Court ruled that the time required to wait was to be based on the totality of

the circumstances, on a case by case basis.- It was reasonable because more than 15-20 seconds was enough time to flush cocaine

down the toilet.- Reasonable Time After Knock and Announce Rule : Reasonableness of suspecting

refusal turns on whether “an occupant has time to get to the door.”

Execution of a warrant can be unconstitutional, although the warrant is valid:

Wilson v. Layne: Held bringing 3rd parties, like the media, into someone’s house when police are executing a warrant violates the 4th amendment, when they are not aiding in the execution of the warrant.- Case where father cuffed in front of media, when cops mistakenly thought they were

in the son’s house and arresting the son. They released him immediately and were sued.

Chapter 4: Reasonable Searches Without Warrants: The Nature and Scope of the Exceptions to the Warrant Requirement

Remember: Warrantless Searches are Per Se Unreasonable

- Supreme Court opinions assert that the search warrant requirement is one of the most fundamental principles in 4th amendment law, subject to “a few, specifically established and well-delineated, exceptions.”

- They include:o Searches incident to arrest,o Exigent circumstances searches,o Automobile doctrine searches,o Inventory searches,o Consent searches,o Plain view seizures

EACH EXCEPTIONS TO THE WARRANT REQUIREMENT MUST BE ANALYZED BASED ON:

1. Rationale for exception,2. Trigger for exception,3. Scope of exception.

Searches Incident to Arrests and Searches for Arrestees

“Officers are just waiting to Chimel you.”

Chimel v. California: Chimel, arrested coin stealer, argued that the warrantless search of all rooms in his home, right after arresting him with a warrant, including the searching of desk drawers and other closed or concealed areas of the home was unreasonable, and therefore violated his Fourth Amendment rights.- Three police officers came to Chimel's (D) house with a warrant for his arrest in

connection with a robbery of a coin shop. D was arrested. Despite the fact that the officers did not have a search warrant, they asked D for permission to "look around."

- Rule : A warrantless search of a person’s house violates the 4th amendment when the person was lawfully arrested with a warrant, BUT only once the search reaches beyond the area from which the arrested person could obtain a weapon or evidence.

o Johnson Rule : This is a home, so they can arrest him without a warrant (Watson), even though arrest warrants are preferred, BUT they cannot search the house absent serious exigent circumstances.

- Search Incident to a Lawful Arrest (of Limited Surroundings of Suspect) Rule ( Chimel Rule ) : A warrantless search incident to arrest is unconstitutional if it is beyond the arrested suspect's person and the area from which he could obtain a weapon or evidence.

o Trigger for search is committing any violation.o The reasons behind this choice was that police officers have an interest in:

protecting themselves against violence and the State has an interest in the preservation of evidence for trial.

o The general rule allowing warrantless search of the person of an arrestee and of the area "within his control" is based upon a policy judgment.

United States v. Robinson: Robinson, speeder, is challenging a search of his body when he was lawfully arrested in his car for speeding but a search of his body turned up no weapons, but did show up a crumpled pack of cigarettes which he contends the officer illegally opened, finding heroin.- It does not violate the 4th Amendment to search inside personal items when arresting

someone when it is too small to turn up conventional weapons (guns/knives) even though there is really no need to find evidence for the arresting violation.

- Search Incident to a Lawful Arrest Not Need to be Justified By Officer Rule ( Robinson ) : Anytime an arrest is made, officers are not required to specifically establish that they are:

o either protecting themselves, or o finding evidence for a violation.

- Robinson says it should be a limited search for weapons, since he was speeding and no evidence of speeding needed to be recovered.

Concurrence: - Once you have been arrested, it is not such an intrusion to search you.- Intrusion of a person’s privacy is the reason to not search.Dissent:- It was not necessary to take the packet because:

o Traffic stop pat down showed that there were no big weapons on the Δ.o No evidence needed to be preserved since the Δ was arrested for a traffic, not

narcotics, violation.

Gustafson v. Florida: Δ contended search of a cigarette box found on his person was not reasonable because no regulation required he be taken into custody or searched. Court found this case to be the same as Robinson.

Knowles v. Iowa: When officer has the discretion to take someone into custody or just cite them in lieu of arrest (like in the traffic stop in this case), and they choose to just cite the offender, there is no right to a search, since the two rationales for searching (officer safety, and gathering losable evidence) are non-existent.- Because Atwater authorizes arrests for all minor traffic stops, an officer can avoid

the stricture of Knowles by placing the minor offender under arrest.

New York v. Belton (how Chimel is applied in automobile context): Belton, the Δ, was arrested and indicted for possession of a controlled substance when the police searched the car he was riding in after he was arrested, taken OUT of the car, an officer found in the car and opened his coat pocket, and found cocaine.- If lawful arrest, area within arrestee’s immediate control can be searched.- Vehicular Bright-line Chimel Rule (Belton) : Interior passenger areas of a car (not

the trunk), including containers in this area, are within the “immediate control” of the arrested party.

o Must be contemporaneous with arrest.- Chimel held that a lawful arrest custodial arrest creates a situation, which justifies the

contemporaneous search without a warrant of the person who was arrested, and the area immediately surrounding.

- This court claims not to change Chimel at all, but they hold that a jacket inside the passenger compartment of a car, where the Δ had been a passenger just before his arrest, was within his “immediate control,” within the meaning of the Chimel case.

Thornton v. United States (US, 2004):- Thornton Extends the Belton Rule : Belton governs even when an officer does not

make contact with the person until he has stepped from his vehicle.- Rationale : Area which was just within the immediate control of the suspect is

considered within his “immediate control” for the purposes of the warrant exception.- Thornton was arrested with crack and marijuana. He met the officer outside his car,

and after being handcuffed and placed in the car, a search of the car was deemed reasonable.

- Dissent – Scalia : Belton allows for purely-exploratory searches of cars, without the considering the Chimel issues. If the court is going to do this, it should admit it is allowing it.

Washington v. Chrisman (US, 1982):- Held it is not unreasonable for an officer to monitor the movements of an arrested

person, as his judgment dictates, after an arrest.- Arrestee wanted to enter his dorm room, but reneged when officer stated he would

have to accompany him.

Michael Jackson Hypotheticals:- Basic Rule: An arrest for ANYTHING allows the officer to search the person

and/or anything in the passenger area of the car.- Hypo (FELONY not in officer’s presence – probable cause is enough to arrest) :

Michael Jackson arrested for child molestation while in his car.o Watson Rule : Probable cause that a felony has been committed, allows for an

arrest in PUBLIC.o Belton Rule : Interior passenger areas of a car (not the trunk), including

containers in this area, are within the “immediate control” of the arrested party.

Based on Belton : He can be searched and so can the inside of his car, so long as he is arrested.

Thornton (Thorton got out of his car and was apprehended in the parking lot): Belton governs even when an officer does not make contact with the person until he has stepped from his vehicle. Arrest of a recent occupant of the car is enough to search the car without a warrant.

- Hypo (Atwater – misdemeanor in officers’ presence is enough to arrest and search incident to arrest): Michael Jackson arrested while in his car after officers observe him not wearing a seatbelt and his kids are not either.

o Atwater Rule : Officer can arrest for any crime, even a misdemeanor, so long as committed in his presence.

- Hypo : Michael Jackson arrested while in his car for Felony tax evasion.o Watson Rule : He can be arrested in his car without a warrant, and be searched

incident to the arrest.- Hypo : Michael Jackson arrested while in his HOME for child molestation.

o Chimel Rule : Officers need a search warrant, and can search Jackson and the area in his immediate control.

To search his house, officers need an affidavit showing probable cause to get a search warrant.

Search warrant needs to state that it is to find evidence of the crime, instruments of it, etc.

- Hypo : Officers knock on Jackson’s door and he does not answer. They have a valid arrest warrant. Have probable cause Jackson is inside. They wait a reasonable time for him to answer, then break down the door. They find Jackson in the bathroom, hiding.

o Payton Rule : Officers have limited authority to enter a home absent exigent circumstances.

If you have an arrest warrant, it is reasonable for the suspect to open the door.

- Hypo : Officers knock on Latoya’s door and no one answers. They have a valid arrest warrant for Michael. Have probable cause Jackson is inside. They wait a reasonable time for him to answer, then break down the door. They find Jackson in the bathroom, hiding.

o Steagald Rule : Searches of a 3 rd party home pursuant to a valid arrest warrant of someone who does not live there, are unreasonable, and everything is .

Plain View Exception to Warrant Requirement : Anything in plain view in the house is fair game. Officers do not have to shield their eyes.

- Hypo : Officers knock on Jackson’s studio apartment door, instead of Neverland Ranch, and he does not answer. They have a valid arrest warrant. Have probable cause Jackson is inside. They wait a reasonable time for him to answer, then break down the door. They find Jackson in the bathroom, hiding.

o Banks (Note Case) : Reasonable amount of time that the officers have to wait is less for the apartment than the ranch.

o (also may be able to search the whole studio, since it is so small).

Steagald v. United States: Steagald, raided cocaine owner, was arrested and indicted on federal drug charges when his house was raided looking for someone else, but drugs, not the felon, were found.- Holding : An arrest warrant, as opposed to a search warrant, is NOT adequate to

protect the 4th amendment interests of persons not named in the warrant (3rd parties), when their homes are searched without their consent and in the absence of exigent circumstances.

- Policy : If this logic held, the police could get a search warrant for one person, and search everyone’s houses all over, without their consent.

o Significant difference in arrest warrant (only protects those persons being arrested – not anyone who is incidentally searched), but search warrant protects a whole area.

- If a suspect had even been at a home for a few days, it would be enough to be considered a home.

Cases we Skipped/Collaterally Discussed:

Payton v. New York: Two convicted criminals argue that a New York statute allows police officers to enter their homes without a search warrant to make felony arrests is unconstitutional based on the 4th Amendment.- Warrantless Entry into Home to Arrest Rule : The 4th amendment prohibits police

from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest and the New York statute that allows police officers to do so is unconstitutional.

Notes on Quiz #2:1. Trigger for search is arrest, and no arrest was made.2. Atwater case says that arrest for misdemeanor or felony gives the right to search the

person. Also, Robinson shows that the goals of searching (officer protection, securing evidence) are not required to be shown; the officer can search regardless of what the arrest is for, and the officer does not have to articulate it.

3. Vale Case : The arrest took place outside the house, so the officer does not have the right to search the house. AND they had enough probable cause to get a warrant and FREEZE the house while they did so.

4. Officers cannot create the exigency. (I GOT THIS ONE WRONG)5. Entry into the house is illegal.

Exigent Circumstances Rule:

When Exigent Circumstances Exist (Hayden):- GRAVITY OF THE OFFENSE: If not a serious offense, may not be considered

exigent circumstances.- whether suspect is armed (danger to community)- strength of probable cause (strong probable cause)- strong belief Δ is inside- Δ will escape unless apprehended- reasonableness of police officer’s conduct- time of day of entry (is it during the day or at night).

Warden, Maryland Penitentiary v. Hayden: Armed robber robbed taxi company and drivers notified the dispatcher and ultimately the police with the robber’s description and the house that he entered. Within minutes, police arrived at the house and upon knocking, were let in. Hayden was found feigning sleep, and other officers, at the same time, found the clothes used in the robbery, and the gun. The state seized respondent’s clothing and weapon as evidence to convict him for armed robbery.- Holding : Entry into the house of a suspect and subsequent seizure of clothes and

weapons did not violate the Fourth Amendment when the suspect was tracked to his house and police arrived only minutes later.

o The police acted reasonably in entering the Δ’s house and the 4th amendment does not require that officers delay their investigation in a way that might endanger themselves or others.

o Speed was essential, since they knew they had an unidentified armed robber in the building.

Richards v. Wisconsin: Exception to the “knock and announce” requirement is justified by a reasonable suspicion that harm will occur if officers knock and announce their presence and identity.

United States v. Santana: “Hot Pursuit” of a suspect justified the warrantless entry of a dwelling, AND

Welsh v. Wisconsin ( Lawson Says: Take Note of Welsh Case ) : Welsh was driving erratically and drunk, crashed, and walked to his house. Police were called, entered his house without a warrant, and arrested him. The US Supreme Court ruled that the police arguments of hot pursuit, prevention of public threat, and evidence of Blood Alcohol Content, were not viable under the circumstances presented.

Vale v. Louisiana: Officers got arrest warrant for the defendant. Then they went to defendant's house where they saw the defendant making a drug deal with someone. When the officers called out, they saw the purchaser swallow something, presumably drugs. The officers arrested the defendant outside his house and then the officers went inside the house and in the back room, they found drugs. - Immediate Vicinity of Arrest Rule : The search of the inside of an arrested drug

dealer’s house violates the 4th amendment when the person was arrested outside his house, but within visual distance of anyone inside.

- The court ruled that a search is incident to a lawful arrest "only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest."

- Since the defendant was arrested outside his house, the back room of the house was not within the immediate vicinity of the arrest and also since the officers did not have exigent circumstances, or the consent of the defendant, they had no right to search the house.

Dissent:- Police did not know who else was in the house, and the arrest took place in front of

the house.- Anyone inside could have seen the arrest and disposed of evidence.- These are exigent circumstances supporting warrantless entry.

Illinois v. McArthur:- Wife told officers that her husband had marijuana in the trailer, and while one officer

went with her to apply for a search warrant, the other officer refused to let the husband back in the trailer.

- When the warrant came, the officers found drugs and the husband was convicted.- Supreme Court ruled this did not violate the 4th Amendment because exigent

circumstances existed where the Δ would have disposed of the drugs if allowed back in the house, and there was probable cause that drugs were inside.

PULL UP AND READ THE DOORMAN CASE FROM THIS SECTION

Vehicle and Container Searches:

Chambers v. Maroney: Chambers, arrested after identified for robbing a gas station, contends that evidence seized from within the vehicle, in which he was riding at the time

of his arrest, is inadmissible in court as the vehicle was searched without a warrant and the car was only searched after being driven to the police station.- Moving Vehicle to Station for Search Incident to Arrest Rule : It is NOT a violation

of the 4th amendment to search the Δ’s vehicle at another place, such as a police station, without a warrant incident to that arrest, so long as there was probable cause to search it at the place of arrest.

- There was probable cause for the search and seizure of the car that was independent of that required for the arrest.

- The car could have been searched on the spot, it was not unreasonable to take the car to the station and search it there instead of searching it in the middle of a parking lot in the middle of the night.

- There is really no difference between making the search on the spot, or at the station that night.

Concurring/Dissenting:- The officers should preserve evidence and make the search possible, BUT…- Taking the car to the station shows a lack of exigent circumstances.

Coolidge v. New Hampshire: Coolidge, convicted murderer of babysitter girl, argues that a warrantless search of his house and car violates the 4th amendment when there was no house warrant and the automobile warrant was issued by the Attorney General.- The word “automobile” is not a talisman in whose presence the 4th Amendment fades

away and disappears.- Chambers : Warrantless searches of a car are acceptable when they are of an

automobile stopped on the highway, and exigent circumstances exist.- The police could not legally seize the car on someone’s personal property, remove it,

and search it at their leisure without a warrant to authorizing this.- ALSO, the attorney general is not a neutral and detached magistrate.Dissent:- The only reason that the case should be reversed is because of the long time the car

was detained, not because the officers can not do whatever they want with a car.

Cardwell v. Lewis: Plurality stated that cars are more protected on private property.

United States v. Johns: Court refused to place a time limit on what is reasonable or excessive.

Texas v. White (Search at Station Bright-Line Rule): White, forged check passer, seeks to suppress checks found in his car when his car was impounded after his arrest and later searched at the officers’ leisure, at the station, for the checks without any warrant. Δ arrested at a bank while trying to pass off fake checks. He was seen stuffing something into the seats of the car, but the car was taken to the station, where officers searched the car without the Δ’s consent. They found the fake checks.- The court erroneously excluded the evidence seized form the search at the station

when there was probable cause to search even though there was no warrant or truly exigent circumstances.

- Why is taking the car back to the station still acceptable?

o Probable cause still existed since the car never was out of the police presence, and

o there is no difference in the invasion of privacy from searching at the station or at the scene of the crime (Chambers).

- Chambers does not require that a warrant be obtained to search a car, as long as the delay in time is reasonable.

Dissent:- Chambers required that it be reasonable to take the car to the station for it to be

searched.- This arrest was at 1 pm, and it would have neither been impractical or unsafe to

search the car on the spot.- In Chambers, it was the middle of the night, and the officers could do a better and

safer job at the station.

Texas v. White Search at Station Bright-line Rule : Officers can search a car back at the station when there is probable cause that there is evidence in the car, NOT merely that an arrest takes place (like in Belton – those facts would not be enough because no probable cause of evidence in the car).

Search justification is partly based on “mobility,” so should a motor home be considered a home or a vehicle?

California v. Carney (Look to How the Home or Vehicle is Used): Carney, marijuana for sex seller, contends that law enforcement agents violated the 4th Amendment when they conducted a warrantless search of a motor home, located in a public place, based on probable cause. DEA agent stopped a kid leaving Carney’s mobile home after some suspicious activity, and the kid told him he traded sex for weed. The officer made the kid go back, and when Carney came to the door, arrested him, then searching without a warrant, like if it were a car instead of a home.- Holding : Law enforcement agents DID NOT violate the 4th Amendment when they

conducted a warrantless search of a motor home, located in a public place, based on probable cause, since a motor home is generally a vehicle.

- While motor home possesses some of the attributes of a home, it is used more like a vehicle.

o It was not on blocks, but wheels, and parked in a public parking lot.- Not applying the automobile exception here makes a motor home the ideal place to

deal drugs…

California v. Acevedo: State contends that evidence seized from within the trunk of the vehicle, in which accused was riding at the time of his arrest, is admissible in court as the police had probable cause to search the vehicle. The police saw Acevedo (Δ) enter and leave Daza's apartment, two hours after Daza had picked up a package that they knew contained marijuana. Δ put the package in his trunk, officers pulled him over, and they searched his trunk.

- Rule : A warrant is not required to search a container, package, or compartment (including the trunk) within a vehicle provided that there is probable cause to believe that there is contraband in the vehicle.

Quiz 3 Review: Officer stops driver and arrests him for having a suspended license, and he searched the inside of the car, finding coke and cash. Then he took the keys from the ignition and opened the trunk, finding guns. Should any of this be suppressed?- Search incident to arrest: the person, and the area within his immediate control, in a

vehicle, this means the interior passenger compartment, including the center console and glove box.

- Acevedo says we can search the entire car if we have probable cause.

Hypo: Can officers take it apart at the station looking for drugs?- Yes, because they follow their probable cause, and the car can be taken apart if it is

reasonable to do so.

Wyoming v. Houghton: Wyoming is appealing a suppression of evidence when they charged the Δ with felony methamphetamine possession but was ruled to have violated the 4th amendment when they searched the Δ’s, a passenger’s, purse without a warrant.- A search of a purse found inside a car DOES NOT violate the 4th Amendment when

the search was of a passenger’s belongings inside a car where there was probable cause to believe the car contained contraband.

- Policy :o Passengers have a diminished expectation of privacy.o Belton still applies since the purse was previously in the driver’s immediate

control.- Full Vehicle Search Rule ( Ross ) : If probable cause justifies the search of a lawfully

stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.

o Applies broadly, regardless to ownership of the container.- Passenger Belongings Search Rule : Passengers, no less than drivers, possess a

reduced expectation of privacy with regard to the property that they transport in cars, which travel public thoroughfares.

o BUT THE PASSENGER HERSELF CANNOT BE SEARCHED, JUST HER BELONGINGS.

Inventory Searches:

South Dakota v. Opperman: Impounded car owner appeals his conviction for having marijuana when the marijuana was seized from his car upon an unauthorized, but routine, inventory search of his car by a police officer when it was taken to the impound yard, as there were valuables visible inside it.- Impound and Inventory Rule : Impounding cars is a routine care taking function,

where an inventory search is a function that the police must serve.o Following procedure by inventorying a car’s valuables does not violate the 4th

Amendment.

o This is different from a criminal search where the police are trying to find a criminal.

- Impound and Inventory Policy : Inventory searches of the impounded cars are used in majority of the states to:1. Protect the owner's property, 2. Protect police from stolen property disputes, and to 3. Seek out any potential dangers to the officers or impounders.

- Scope of the Search : o Clear procedures are preferred, BUTo Some discretion for looking around the car, so long as the officer is just

following his caretaker function, in good faith, and has not switched to pursuing a criminal search.

o Based on the specific circumstances of the case.o Also, officers have discretion to impound, even when there is an

alternative, just based on the mandated police procedure.- Concurring : Society has an important interest in minimizing false claims against

police, which lowers society’s trust in the officers.- Dissent : The officers should have to diligently search for the owner of the car before

opening it up without a warrant.

Illinois v. Lafayette: Lawfully arrested theatre altercator is challenging a search of his “man purse” when he was arrested and the bag was inventoried/searched back at the station, leading to his conviction for possession of a controlled substance, as he had amphetamines in it.- Post-Arrest Search of the Person Incident to Booking and Jailing : The 4th

Amendment does not prevent the police from searching the personal items of a person under lawful arrest as part of a routine administrative procedure at a police stationhouse, incident to booking and jailing the Δ.

- Trigger for Inventory Search of a Person’s Possessions :o Police procedures must allow for taking an inventory.o Person must be going to be put into the general jail population.

- At a police station, it is proper to remove and list inventory from the person being jailed for the following reasons:

o Makes a list of the Δ’s possessions so that false claims are not filed, and theft does not occur.

o Protects general prison population: Δ was being released into the general jail population, and may injure himself or others with dangerous objects that are easily concealed.

o May assist police in verifying the identity of the arrested party.- This is a bright-line rule, like in Robinson, so police do not need any particular

suspicion of anything in order to inventory someone’s possessions.o Only difference from search incident to arrest:

Not contemporaneous, For a different purpose

Hypo: If the police procedures were to not open up any “man purses” but to just hold them closed, then searching a bag as in this case would be unreasonable under the 4th Amendment.

Hypo: Strip-searches at the side of the road are likely unreasonable, but at the police station may be reasonable, based on the police procedure.

THERE IS A LACK OF A CONTAINER EXCEPTION:- A container does not have the same expectation of privacy as a vehicle.- NO EXCEPTION FOR A MOVEABLE CONTAINER, BUT WHEN THE

CONTAINER IS IN A CAR, THE AUTOMOBILE EXCEPTION APPLIES.

Colorado v. Bertine: Δ was arrested for DUI, his van was towed to an impound lot, and an officer took inventory of the items in the van.  The officer opened a closed backpack and found controlled substances, cocaine paraphernalia, and a large amount of cash.  He was charged with intent to dispense, sell, deliver, and unlawful possession of methaqualone. The impound law stated that the officer could either give the car to a 3rd party for safekeeping, leave it locked in a parking lot, or have it impounded and inventory it.- Inventory Despite Other Options Rule : An inventory search of a car upon its

impounding does not violate the 4th Amendment, when the officer could have just left the car there, and impounded it at his discretion.

- Reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment, even though courts might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure.

Concurring:  It is permissible for police officers to open closed containers in an inventory search

only if they are following standard police procedures that that mandate the opening of such containers in every impounded vehicle.Dissent:

Where the vehicle itself is not evidence of a crime, as in this case, the police apparently have unbridled discretion as to which procedure to use. The court overstates the justification exception to the 4th amendment.

Florida v. Wells (U.S. 1990): Court concluded that an inventory search of a locked suitcase found in the trunk of an impounded vehicle violated the 4th Amendment BECAUSE the FHP had no policy regarding closed containers during an inventory search. - BUT ALSO, held that there was no need to either search every container in the car, or

none of them. It was not all or nothing, but left to the officers’ discretion.

Consent Searches:

Schneckloth v. Bustamonte: Consenting Δ, Bustamonte, was convicted of possessing a check with intent to defraud and moved to suppress the introduction of certain material as

evidence against him on the ground that the material had been acquired through an unconstitutional search and seizure, since he was ignorant of his right to decline giving the officers consent to search his car.- State does not have to demonstrate that consent to search was voluntarily given when

the party being searched is not in police custody.

Test for Voluntariness: Whether consent is voluntarily given is based on the totality of the circumstances, such as factors like:

o Characteristics of the accused, ando Details of the interrogation.

- Rule : Officer DOES NOT have to tell you that you are free to go.- Rule : When the subject of a search is not in custody and the State attempts to justify

a search on the basis of his consent, the 4th and 14th Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied.

- Policy : There are two competing concerns when determining voluntary consent: o the legitimate need for such searches, and o the equally important requirement of assuring the absence of coercion.

Consent Searches:- Government must just show that consent was “voluntarily given,” based on the

totality of the circumstances.- Totality of the Circumstances can consider:

o Coerciveness of the police officerso Characteristics of the accusedo Details of the interrogation

- Courts like this rationale because allowing officers more discretion makes it more likely that they will get confessions.

- Even where someone is mentally disturbed, the courts will still look most at whether the officer was coercive.

- Consent works regardless of custody status- No probable cause or search warrant needs to be shown.- Consent can be limited: Ex. “You can search everything but the trunk….”

3 rd Party Consent :- 3 rd Party Consent Two pronged test :

1. Did the person giving consent have authority?a. Person has joint access and control over the area for most purposes,

meriting AUTHORITY TO GIVE CONSENT.2. Was the consent given voluntarily?

- Courts allow this because everyone is assuming the risk that their co-occupant will waive their rights.

o Maids, landlords have limited access, so cannot give consent.o Spouses presumed to have authority to give consent.o Roommates depend on whether there is access to the roommate’s space.

- Whether someone can give constructive consent based on reasonableness.o Having a keyo Nature of the crime (like domestic battery)o Name on leaseo Paying rent

- You also assume the risk when the police reasonably believe in good faith that the consenting party had authority over the space (Rodriguez).

o Based on the officers’ belief based on the facts at the time the consent is given.

o Courts split on whether children can give consent (older ones generally can).

- Like probable cause, the officer does not have to be correct, just reasonably believe that the person has authority to give consent.

In the Consent to Search Context: If you are waving your Constitutional rights, you DO NOT need to be questioned about whether you want to waive it, JUST that, based on the totality of the circumstances, you voluntarily did so.

Ohio v. Robinette: Ticketed motorist, Robinette, is seeking to suppress marijuana and a methamphetamine found in his car when he was pulled over, technically freed to leave, but consented to a police search of his car, claiming that he would not have if he knew he could have declined.- Consent After Being “Free to Go” Test : The 4th Amendment does not require that a

lawfully seized Δ be advised that he is “free to go” before his consent to search will be recognized as voluntary, as the voluntariness should be based on the totality of the circumstances.

- Whren stated that an officer’s state of mind is not important in searching, just that he objectively does not violate the 4th Amendment. Subjective intentions are not important.

- There was probable cause to make the stop.- Reasonable searches do not violate the 4th Amendment, and reasonableness is based

on the totality of the circumstances.o Knowledge of the right to refuse consent is only one factor in showing

voluntariness, and the government does not necessarily need to show this knowledge.

- 4th Amendment Test that Consent be Voluntary: “Voluntariness is a question of fact to be determined from the totality of the circumstances.”

United States v. Matlock: Girlfriend gave the police consent to search a room that she shared with her boyfriend, gave consent for officers to search, and they found stolen money from his bank robbery in a diaper bag in the closet.- Held : Evidence presented with respect to the voluntary consent of a third party to

search Δ’s living quarters was legally sufficient meet the consent exception when the party giving consent shared the room but was not of formal familial relations to the Δ, just being a girlfriend and cohabitant.

- Joint-Occupant Consent Rule : Consent can only be given by people who have common authority over the premises for most purposes.

Hypotheticals:- Being a property owner is not enough, as that is just a property interest, not common

authority over property like an owner has.o Owner generally only has limited authority over the property.

- Hotel maid cannot give consent to officers either, as she has only limited authority.- If roommates have clearly dileniated rooms, not able to give consent for roommates

room. If shared room, then consent can be given.

Florida v. Jimeno: Supreme Court held the “scope of consent” is governed by a standard of “objective reasonableness.”- “Objective Reasonableness” Consent Search Scope Test : “What a reasonable person

would have understood was to be searched by the police, based on the exchange between the officer and person giving consent.”

- May be an entire home, if that consent is understood to be given.

Illinois v. Rodriguez: Rodriguez, the Δ and homeowner, moved to suppress drugs and paraphernalia seized at the time of his arrest, on the ground that the woman who gave the consent to enter had vacated the apartment several weeks earlier and, at that time, had no authority to consent to the officers' entry, as he had kicked her out of the house several weeks before she went to the police after he beat her.- Good Faith Objective Test Exception to Actual Common Authority : A warrantless

search of a home is valid if police at that moment reasonably believe that the consenting party has authority over the premises, based on the totality of the circumstances.

- Reasonableness Test : The determination of consent to enter must be judged against an objective standard:

o Whether the facts available to the officer at the moment lead a man of reasonable caution to believe that the consenting party had authority over the premises.

- If not, then absent actual authority, the search is invalid.- If so, the search is valid.

- Held : 4th Amendment's reasonable search requirement is satisfied when police conduct a warrantless search of a person's home based upon the apparently authorized consent of another and the person is later shown to not have authority to grant such a search, SO LONG AS it is reasonable for the officers to believe that the person had authority to grant the search, based on the totality of the circumstances.

o Lower court was reversed in holding that (1) at the time she consented to the entry, the woman did not have common authority over the apartment, since she was an "infrequent visitor" at the apartment, rather than a "usual resident," and (2) the Federal Constitution's Fourth Amendment was violated even if the officers reasonably believed at the time of their entry that the woman possessed the authority to consent.

o At one time, she was a “frequent visitor,” but not at the time that she gave consent.

Plain View Exception:

Plain View Doctrine Test: Plain view doctrine is justified when there is a: 1. lawful arrival at the place from which the object can be plainly seen, 2. lawful access to the object seized, and 3. an object whose incriminating nature is immediately apparent.

- If an officer gains probable cause that there is criminal evidence somewhere, but it is not immediately apparent as incriminating, the officer has to, and can, get a search warrant.

o Coolidge and Horton require that the plain view doctrine only applies when the incriminating nature of the item be “immediately apparent” to the officer.

- Inadvertence by the officer is seeing the incriminating evidence does not matter.

Horton v. California: When officer seized weapons from his house that were not included in the warrant, Δ argued that the officer's discovery of the seized items not listed in the search warrant was not inadvertent, and that the Coolidge v. New Hampshire decision required their suppression under the Fourth Amendment. The officer testified that while he was searching for the stolen property, he also was interested in finding other evidence connecting the accused to the crime.- Plain View Seizures Incident to Warrant Execution Rule : The 4th Amendment is

NOT violated when a warrant is issued for a search and the plain view doctrine is used to seize other objects not included in the warrant, regardless of whether the officer admits that he did not just inadvertently run across the objects.

o First, the standard state of mind of the officer is not at issue, as this is a per se rule.

o Second, rejecting the inadvertence requirement would not allow the officer to look in any more places or with any more intensity than he would otherwise be able to look.

Arizona v. Hicks (Plain View – Illicit Nature of Object must be “Immediately Apparent”): Hicks, owner of apartment where bullet was fired out the window, is seeking to invalidate evidence of a stereo, which was not immediately apparently stolen, seized from his apartment when the officer had to move the stereo to read the serial number on the back of the stereo to determine it was stolen.- Plain View Doctrine No Longer Applies when an Object must be “Moved” : Moving

an object, here a turntable, in order to ascertain whether it is stolen, based on its serial number, violates the “plain view doctrine” and constitutes a search without a warrant under the 4th Amendment. Illegal nature of the object must be immediately apparent to the officer.

- Warrantless entry by the officers, under the exigent circumstances exception to the warrant requirement, was valid; AND the recording of the equipment’s serial numbers did not constitute a search or seizure.

- BUT, when the officer moved the turntable it was held to be a separate search, apart from the search for the defendant and his firearms.

- The officer did not have probable cause, only reasonable suspicion, to search the stereo equipment.

4 th Amendment Warrant Exceptions Chart :

Warrantless Searches are Per Se Unreasonable, but:

Exceptions to the Warrant Requirement and/or Probable Cause:- Suspends either the warrant requirement and/or probable cause.- Additional probable cause can develop during the application of any of these warrant

exceptions.

Search Incident to Arrest:- Rationale – To preserve the evidence, and protect the officer.

o Robinson , though, gives a brightline that these are present in EVERY arrest, and the officer does not need to show them.

o Hence, in every arrest, there is a right to search the person, even when there is not evidence of the crime to be found (like when arrested for speeding).

- Trigger – Lawful Arrest- Scope –

o Chimel : The person, and the area within the arrestee’s immediate control, OR the area recently

in the suspect’s immediate control (depending on the circumstances of the arrest/no brightline).

Must be done at the scene, not later.o Belton : Car has a brightline rule –

The entire passenger compartment of the car and its compartments are always fair game when the arrestee was in the car, OR when the person was recently in the car (Thornton Note Case).

Trunk, though, is not under the exception. This falls under Chimel.

Exigent Circumstances:- Rationale – Prevent danger to the community and the destruction of evidence.

o This is an “emergency situation” and the harm will result between the delay in getting a warrant and its execution.

Doorman Factors: Seriousness of the harm, Danger to the community, Etc.

Whether hot pursuit of suspect.

- Trigger – o Probable cause (knowing he committed, or seeing him commit, a crime):o Fair probability that a harm will result if action is not taken at that moment

(emergency)- Scope –

o Only can search where the emergency need is required (not a bright-line). Hayden : Hot pursuit case: Once they found Hayden, the exigent

circumstances were over. Other searches at that time are no longer justified by that exception. Perhaps another exception would kick in at that time, like “Search incident to an Arrest” exception.

Automobile Exception – Allows warrantless search of automobile where probable cause that the evidence (contraband) is in the car:- Rationale –

o Mobility: Automobile could be moved out of the jurisdiction/evidence could be lost.

Ready mobility must be shown.o Lower/diminished expectation of privacy in an automobile (Ronner says:

“Driving off the face of the Constitution.”) Contents and driver are in plain view, Driving his highly regulated, Cars must be registered.

- Trigger – o Probable cause (a reasonable belief) that the evidence (contraband) is in the

car (the same probable cause you would need for a warrant). Contraband, weapons, etc.

o Arrest is not necessary.o Search can be “delayed,” and just has to be within a “reasonable” time.

- Scope – o Entire car, including the trunk, is allowed to be searched.o ONLY APPLIES TO THE AREAS WHERE THERE IS PROBABLE

CAUSE TO SEARCH. You can only look where the object is reasonably going to be found.

o CAN be searched EITHER at the scene or at the police station Since there is no difference in the expectation of privacy. 3 days is still a reasonable time to wait.

Inventory Searches: Impounding cars is a routine care taking function, where an inventory search is a function that the police must serve.- Rationale : Inventory searches of the impounded cars are used in majority of the

states to:4. Protect the owner's property, 5. Protect police from stolen property disputes, and to 6. Seek out any potential dangers to the officers or impounders.

- Trigger for Inventory Search of a Person’s Possessions :o Police procedures must allow for taking an inventory.

o Person must be going to be put into the general jail population.o Probable Cause not required.

- Scope of the Search : o Clear procedures are preferred, BUTo Some discretion for looking around the car, so long as the officer is just

following his caretaker function, in good faith, and has not switched to pursuing a criminal search.

Also, officers have discretion to impound, even when there is an alternative, just based on the mandated police procedure, and their good faith.

o Strip-searches at the side of the road are likely unreasonable, but at the police station may be reasonable, based on the police procedure.

LACK OF CONTAINER EXCEPTION :- A container does not have the same expectation of privacy as a vehicle.- NO EXCEPTION FOR A MOVEABLE CONTAINER, BUT WHEN THE

CONTAINER IS IN A CAR, THE AUTOMOBILE EXCEPTION APPLIES

Consent Searches:- Government must just show that consent was “voluntarily given,” based on the

totality of the circumstances.- Totality of the Circumstances can consider:

o Coerciveness of the police officerso Characteristics of the accusedo Details of the interrogation

- Courts like this rationale because allowing officers more discretion makes it more likely that they will get confessions.

- Even where someone is mentally disturbed, the courts will still look most at whether the officer was coercive.

- Consent works regardless of custody status- No probable cause or search warrant needs to be shown.- Consent can be limited: Ex. “You can search everything but the trunk….”

3 rd Party Consent :- Two pronged test:

o Did the person giving consent have authority?o Was the consent given voluntarily?

- Person has joint access and control over the area for most purposes, meriting AUTHORITY TO GIVE CONSENT.

- Courts allow this because everyone is assuming the risk that their co-occupant will waive their rights.

o Maids, landlords have limited access, so cannot give consent.o Spouses presumed to have authority to give consent.o Roommates depend on whether there is access to the roommate’s space.

- Whether someone can give constructive consent based on reasonableness.

o Having a keyo Nature of the crime (like domestic battery)o Name on leaseo Paying rent

- You also assume the risk when the police reasonably believe in good faith that the consenting party had authority over the space (Rodriguez).

o Based on the officers’ belief based on the facts at the time the consent is given.

o Courts split on whether children can give consent (older ones generally can).

- Like probable cause, the officer does not have to be correct, just reasonably believe that the person has authority to give consent.

In the Consent to Search Context: If you are waving your Constitutional rights, you DO NOT need to be questioned about whether you want to waive it, JUST that, based on the totality of the circumstances, you voluntarily did so.

Plain View Exception:

Plain View Doctrine Test: Plain view doctrine is justified when there is a: 4. lawful arrival at the place from which the object can be plainly seen, 5. lawful access to the object seized, and 6. an object whose incriminating nature is immediately apparent.

- If an officer gains probable cause that there is criminal evidence somewhere, but it is not immediately apparent as incriminating, the officer has to, and can, get a search warrant.

- Inadvertence by the officer is seeing the incriminating evidence does not matter.

Stops, Frisks, and the Right to Be Secure in One’s Person, House and Effects:

Requirements to Stop and/or Frisk:

Trigger:- Reasonable Suspicion to Frisk Test :

o Reasonable suspicion that the suspect is “armed and dangerous.”o The policeman should use an objective test, and be able to point to specific

and articulable facts which reasonably justify the intrusion, based on the totality of the Circumstances

Certainty that the suspect is armed is not necessary:o “Whether the facts available to the officer at the moment of the seizure or the

search would lead a man of reasonable caution to believe that his safety or that of others was in danger.”

- A mere STOP, without a frisk, can be made without reasonable suspicion.

Rationale:- Reduced expectation of privacy, based on exigency (frisks are limited by the need of

the exigency, like a patdown for weapons) and protection of the officers.- Camara Principle: Courts balance government interest VERSUS the level of

intrusion.- Search is not meant, like search incident to arrest, to prevent disappearance or

destruction of evidence.- It is meant solely to protect officers and others nearby.- Prevent crime.

Scope:- The policeman should use an objective test, and be able to point to specific and

articulable facts which reasonably justify the intrusion.o Totality of the Circumstanceso Whether a reasonable officer would believe that there was a need to frisk for

weapons, based on specific and articulable facts which reasonably justify the intrusion.

o “Officer must believe that crime is afoot.”o Training and experience of officer can be considered.

- Patting down the outside of the garments, without sticking a hand inside until the weapon has been felt, does not violate the 4th Amendment.

o Reasonable time to frisk individual and ascertain whether reasonable suspicion was accurate.

Intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the officer.

Mendenhall Seizure Test: A person has been “seized” within the meaning of the 4th Amendment only if, in view of all the circumstances surrounding the incident (totality of the circumstances), a reasonable person would have believed he was not free to leave.- Rule : It is not enough for seizure that a law enforcement official asks questions of a

person, as there must be either a show of authority or physical force.- Rule : If a person makes statements to law enforcement that he later regrets, the issue

is not whether the statement is self-protective, but rather was made voluntarily.

Chapter 5: The Balancing Approach to 4 th Amendment Reasonableness

In these cases, the:- Government contends that balancing whether probable cause or warrants are

necessary justifies the diminution of the normal standards of reasonableness.- Individuals contend that balancing analysis should lead to elevation of the normal

standards.

Stops, Frisks, and the Right to Be Secure in One’s Person, House and Effects:

The Constitutional Doctrine and Its Theoretical Underpinnings:

- Frisk is a pat-down over a person’s clothing.- Seizure of a person is a temporary detention, NOT AN ARREST. Arrest is a

different standard.

Terry v.Ohio: Terry, concealed weapon carrying Δ, contended that the weapon seized from his person and introduced into evidence was obtained through an illegal search under the Fourth Amendment, when he was observed casing a store, stopped, frisked over his clothes, and shown to be illegally carrying a concealed weapon.- Held : It is not a violation of the 4th Amendment when an officer seized a person and

subject him to a limited search over his clothing for weapons, even though there was no probable cause for arrest, but there was reasonable suspicion that the Δ was carrying a weapon.

- Rule : An officer is justified in conducting a carefully limited search of persons whom he reasonably suspects to be dangerous in order to discover any weapons which might be used to assault him or other nearby, even in the absence of probable cause for arrest.

- The policeman should use an objective test, and be able to point to specific and articulable facts which reasonably justify the intrusion.

Trigger:- Reasonable Suspicion to Frisk Test :

o Reasonable suspicion that the suspect is “armed and dangerous.”o The policeman should use an objective test, and be able to point to specific

and articulable facts which reasonably justify the intrusion, based on the totality of the Circumstances

Certainty that the suspect is armed is not necessary:o “Whether the facts available to the officer at the moment of the seizure or the

search would lead a man of reasonable caution to believe that his safety or that of others was in danger.”

- A mere STOP, without a frisk, can be made without reasonable suspicion.Rationale:- Reduced expectation of privacy, based on exigency (frisks are limited by the need of

the exigency, like a patdown for weapons) and protection of the officers.- Camara Principle : Courts balance government interest VERSUS the level of

intrusion.- Search is not meant, like search incident to arrest, to prevent disappearance or

destruction of evidence.- It is meant solely to protect officers and others nearby.- Prevent crime.Scope:- The policeman should use an objective test, and be able to point to specific and

articulable facts which reasonably justify the intrusion.o Totality of the Circumstances

o Whether a reasonable officer would believe that there was a need to frisk for weapons, based on specific and articulable facts which reasonably justify the intrusion.

o “Officer must believe that crime is afoot.”o Training and experience of officer can be considered.

- Patting down the outside of the garments, without sticking a hand inside until the weapon has been felt, does not violate the 4th Amendment.

o Reasonable time to frisk individual and ascertain whether reasonable suspicion was accurate.

Intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the officer.

Reasoning:- Anything less would invite intrusions upon 4th Amendment protected rights. - Effective crime prevention and detection is a governmental interest in appropriate

circumstances for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.

- It would be unreasonable to require that the policeman take unnecessary risks. - He has a need to protect himself and others in situations where he lacks probable

cause for arrest. - In this case, nothing in the conduct of Δ and other suspects dispelled the officer's

reasonable fear that they were armed.Concurring: (White, J.) - A policeman can address questions to anyone on the streets, but citizens are not

obliged to answer, and answers may not be compelled. - A refusal to answer is no basis for an arrest, but it may be a basis for continued

observation.Dissent: (Douglas, J.) - Infringement of one's personal liberty is only reasonable if probable cause is present

that:o Crime was committed,o Crime was being committed,o Crime was about to be committed.

- The majority gives a policeman more authority to make a seizure and conduct a search than a judge has.

Delineation between a reasonable belief and a reasonable suspicion:- Probable cause – Reasonable belief;- Stop and Frisk – Reasonable suspicion, backed by articulable facts.

Sibron v. New York: Officer watched a man converse with drug addicts and, later, asked the man to step outside the restaurant he was eating. Officer then reached into the man’s coat and pulled out heroin.- Held : This was not fear of “life or limb” that would merit a “stop and frisk.”- Harlan : Argued “need for immediate action” was required for a frisk,

BUT he was rejected in:

Adams v. Williams: Court held it was permissible under Terry to stop and frisk an individual suspected of having narcotics and a concealed weapon.

Terry Frisk Hypos:- Terry frisk at the station? NO- Terry frisk for evidence of a crime? NO

Lawson: LOOK UP 3 RD PARTY CONSENT CASE, PENDING IN SUPREME COURT:

Georgia v. Randolph: 3rd party consent in a case where the parties are disputing.

Dunway v. New York: Dunway, Δ in robbery of pizza shop, is trying to suppress his self-implication when he was asked to go to the police station, taken to an interrogation room, Mirandized, and then implicated himself when there was not probable cause to arrest him but it developed after he was “taken in.”- The police violated the 4th Amendment when they, without probable cause to arrest,

took Δ into custody, transported him to the police station, and detained him for investigation.

- Terry Stop cannot take place back at the station, as this qualifies as an arrest.o Police want a “reasonable suspicion” test to “bring in” a suspect to be applied.o This would just erode the general warrant requirement.

Florida v. Royer: Plurality concluded that officers needed probable cause to detain a suspect and moved him from an airport concourse to a police room a short distance away.

Dunway Addresses – Is Terry the General Rule or a Rare Exception?- Brennan’s Majority: balancing that leads to “lesser” justifications should be reserved

for a limited and narrow realm of official conduct.- White’s Concurrence: Terry is a unique exception to a hard and fast probable cause

standard.

“Seizures” of Persons:

United States v. Mendenhall: Mendenhall, Δ, arrived at Detroit Airport in a commercial flight. After observing the Δ’s conduct, she was approached by 2 DEA agents, since she was acting suspiciously. They asked to see her driver’s license and plane ticket. They were in different names. They gave her the ticket and ID back. They told her they were narcotics agents asked her if she would go be searched. The officers told her she could refuse. She followed, and assented, saying “Go ahead,” to having her bag searched and being strip searched. Upon being strip searched, she turned over heroin. She claimed that her 4th Amendment rights were violated because there was not reasonable suspicion to come up to her, and seize her, in the first place.- Held : Drug trafficker was not seized when she consented to going with DEA agents

and being strip searched; and, if so, whether she consented to the search.- Rule : A person is “seized” only when:

o By means of physical force, or a show of authority, his freedom of movement is restrained.

Mendenhall Seizure Test: A person has been “seized” within the meaning of the 4th Amendment only if, in view of all the circumstances surrounding the incident (totality of the circumstances), a reasonable person would have believed he was not free to leave.

- If a person is seized, officers need reasonable suspicion, BUT if you are not seized, officers do NOT need any justification to converse with a person.

o No seizure took place in this case, as the officers identified themselves as agents, asked her if she would consent to searches, did not demand anything of her.

o Factors leading a reasonable person to believe they were free to go in this case:

Ticket and ID given back She calmly was asked if she could be searched, and voluntarily

consented.- Rule : It is not enough for seizure that a law enforcement official asks questions of a

person, as there must be either a show of authority or physical force.- Rule : If a person makes statements to law enforcement that he later regrets, the issue

is not whether the statement is self-protective, but rather was made voluntarily.- IN ADDITION, her consent was given freely and voluntarily.

Florida v. Royer (US 1983): Plurality concluded no seizure when officers approached a suspect in airport concourse and asked to see his license and ticket. Seizure did occur when the officers identified themselves, told him he was suspected of narcotics transportation, asked him to accompany them to a search room, and retained his ticket and license, never indicating he was free to leave.

Michigan v. Chesternut (US 1988): Δ saw cops while on corner, and turned, running away. Following him in the car was not a seizure. It was important that the cops did not turn on the lights, tell him to stop, display weapons, or impede his running.

Florida v. Bostick (protective sweep on a bus ) : Bostick, bus riding drug dealer Δ, is challenging his denied motion to suppress cocaine found in his bag when he claims his 4th

Amendment rights were violated when he was approached by officers on a bus and asked, without reasonable suspicion of having done anything wrong, whether they could search his bags.- A citizen’s 4th Amendment rights were not per se violated, or violated at all in this

case, when he was approached by officers while sitting on a bus and asked, without reasonable suspicion of having done anything wrong, whether they could search his bags, because he was not “seized,” as seizure in each case should be judged on the totality of the circumstances.

o This was not a case of seizure based on the following test:- “Seizure of the Person Test” : Whether a reasonable person would have felt free to

decline the officers’ requests or otherwise terminate the encounter.

o This test applies to ALL circumstances, not just buses.- Rule : Refusal to cooperate with an officer, without more, does not furnish the

minimal level of objective justification needed for a detention of seizure.- INS v. Delgado : Workers at a factory were not held to be seized when immigration

checked the factory, because the workers could not leave since they were at work, not because of the officers’ being present.

Hypo: Bag Check Narcotics Video:- Suspect said “Search me.”- She started going through his bag and he asked for a warrant.- Officer said, “Now you want a warrant?”- “You can go ahead and do it.”- He denied the other one was his bag, so she searched it, then he admitted it was his

bag. She then had reasonable suspicion, so read him his Miranda Rights, BUT told him “You are not under arrest, but you are not free to leave. You are under my care and custody.”

- The officer then found cocaine and a gun in his other bag.

California v. Hodari: A group of youths, including the accused, was huddled around a car parked at a curb. At the sight of the officers' car, the youths apparently panicked and fled. One of the officers left the car and ran around the block in order to intercept the accused, who had run into an alley. The accused was looking behind him as he ran and did not see the officer until the officer was almost upon him, whereupon the accused tossed away what appeared to be a small rock but which when retrieved the police proved to be crack cocaine. The officer tackled and cuffed the Δ, then found the crack.- Submission for Seizure Rule : An arrest or seizure requires either physical force or,

submission to the assertion of authority, so a seizure does not take place when an officer runs from the police, just when he is captured or submits to the police.

- Even if, as conceded by the state, the officer's pursuit of the accused had not been based on reasonable suspicion, the cocaine discarded by the accused was not the fruit of a "seizure" of his person within the meaning of the Fourth Amendment, because an arrest--the quintessential seizure of the person under Fourth Amendment jurisprudence--requires either

o (a) the application of physical force with lawful authority, or o (b) submission to the assertion of authority;

- The accused had not been touched by the officer at the time he discarded the cocaine; and

- Assuming that the officer's pursuit of the accused constituted a show of authority enjoining the accused to halt, the accused did not comply with that injunction and therefore the Δ not seized until he was tackled.

Dissent:- The deterrent purposes of the exclusionary rule focus on the conduct by the police

officers, in particularly in discouraging improper behavior on their part, and not on the reaction of the citizen.

- The court in the present case defines a seizure as commencing not with the egregious police act but rather with the submission by the citizen.

Notes on Hodari:- Some states have rejected the Hodari standard as a matter of State constitutional law,

and only apply the Mendenhall “reasonable person” standard.- Bower v. County of Inyo (US 1989) : 4th Amendment seizure occurs “only when there

is a governmental termination of freedom of movement through means intentionally applied.”

Showing Needed to “Stop and Frisk” Under Terry

Illinois v. Wardlow: Wardlow, gun toting fleeing suspect, challenged the 4th amendment constitutionality of his conviction for “unlawful use of a weapon by a felon” when he was stopped without any indication that he was involved in drug trafficking, but ran from the police when they looked at him. When officer stopped him, he frisked him and felt the bag Δ was carrying.- Must be immediately apparent that there is a gun/drugs. See Dickerson.- Held : Officers were justified to conduct a Terry stop and frisk of a person who was

standing in a high crime area and ran when the police looked at him, as this created reasonable suspicion.

o Wardlow Majority: Individual’s presence in a high crime area is not enough in itself to merit a frisk, but should be considered as a factor.

o Fleeing, alone, is not enough either.- Frisking the Bag : Also triggers the 4th Amendment, and requires that the existence

of a gun be immediately apparent from the bag’s frisk in order to open the bag.- Terry Stop and Frisk Rule : Officer may, consistent with the 4th Amendment, conduct

a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.

- “Reasonable Suspicion” Definition : Less demanding standard than probable cause, and requires a showing considerably less than preponderance of the evidence. 4th Amendment requires at least a minimal level of objective justification for making the stop.

o Officer must be able to articulate more than an “inchoate and unparticularized suspicion or ‘hunch’ of criminal activity.”

- Here, the presence in a high crime area, coupled with the HIGHLY SUGGESTIVE flight of the Δ, made it reasonably suspicious to merit a stop.

- Rule: Unprovoked flight is not merely a refusal to cooperate (which is fine), but creates reasonable suspicion.

Concurring and Dissenting in part:- While agreeing that “per se” rules should not be used in these cases, there was not

reasonable suspicion, since “unprovoked flight” can be too many things to be reasonably inferred, per se, as suspicious.

- Flight should not be considered, as people may run for innocent reasons; LIKE BEING BLACK!

- Minorities do not trust the police.

Alabama v. White: White, Δ, is seeking to suppress evidence used to convict her of possession of marijuana and cocaine when officers were alerted to her activities through an anonymous, and unverifiable, tip that proved to be extremely accurate before finding the drugs. Anonymous phone call that “Vanessa White” would be leaving a particular apartment at a particular time, in a brown Plymouth station wagon with a broken light, and going to Dobey’s Motel with an ounce of cocaine in a brown attaché case. Officers followed up on the tip, and since everything was on point, they pulled White over as she was pulling up to the Motel. She was told that she was suspected of having cocaine, and consented to a search of her car. Officers found marijuana in the suitcase, after she told them the combination to it on their request. At the station, during processing, the officers found cocaine in her purse.- Held : Officers did not violate the 4th Amendment by stopping a vehicle, later

searching it upon consent, based on “reasonable suspicion” gathered from an anonymous, and unverifiable, tip that proved to be extremely accurate before finding the drugs, since the tip had been sufficiently corroborated to furnish reasonable suspicion.

- Gates, Aguilar, and Spinelli : All state that “totality of the circumstances” must be considered in deciding whether an informant’s tip establishes probable cause.

o The court considers informant’s veracity, reliability, and basis of knowledge.

o Also, an anonymous tip is almost never enough.HOWEVER:- Reasonable Suspicion to Stop Rule : Reasonable suspicion is a less demanding

standard than probable cause, so reasonable suspicion can arise from information that is less reliable than that required to show probable cause.

o Totality of the Circumstances must be considered: Namely: Quantity, and Quality

Dissent:- Millions of people do the same thing every day.- In this case, the “tipster” could have just been another police officer with a “hunch”

that there might be cocaine in the case…

Florida v. J.L.: Underage black man, J.L. Δ, was charged with carrying a concealed firearm without a license, and possessing a firearm while under the age of 18, but suppressed the gun as his frisk was a 4th Amendment violation, since the officers frisked him based SOLELY on an anonymous and completely unverified tip, which only said a black person wearing a plaid shirt.- Held : Δ’s frisk and finding of a gun was a 4th Amendment violation, since the

officers frisked him based SOLELY on an anonymous and completely unverified tip, with no observation, either, which could improve its veracity.

- Anonymous Tip Rules:o If an anonymous tip is corroborated in some way, it can meet the

reasonable suspicion standard.o Reasonableness of official suspicion must be measured by what the

officers knew before they conducted their search.

- Rule: “Reasonable Suspicion” requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.

- No exceptions should be made just because it is a firearm case, as this could cause serious abuses. Court rejected this argument.

- HOWEVER ::::::::::::o Report of a person carrying a bomb does not need to be corroborated for a

stop and frisk to take place.o Airports and schools also have a lowered reasonable expectation of

privacy, so reliability of a tip is not always required.

Reid v. Georgia:- Because it would lead to virtually random seizures, Court held officers could not have

reasonable suspicion based on the factors:o Arrived on a flight from FLLo Arrived in the morning, when less officers are aroundo He and companion tried to conceal that they were togethero They had no luggage checked through

- RULE, ALSO: Drug Courier Profile Factors are not enough for reasonable suspicion:o No reasonable suspicion despite the presence of 3 “Drug-Courier Profile

Factors” being met. There must be something more.

Florida v. Royer:- Terry seizure was justified when:

o Officers saw the suspect was young and nervouso Looked suspiciously around at the peopleo Paid cash for a 1 way ticketo Checked suitcases with false nameso Was traveling under and assumed name

United States v. Sokolow:- Reasonable suspicion of narcotics trafficking when:

o Paid $2,100 for 2 round trip tickets from a roll of $20so Traveled under a fake nameo Original destination was Miamio Stayed in Miami for only 48 hours, even though his flight from

HONOLULU took 20 hourso Checked no luggage ando Appeared nervous.

United States v. Arvizu:- Reasonable Suspicion must be based on all the factors being weighed TOGETHER,

not alone.

United States v. Hensley: Court held Terry detentions are permissible to investigate “completed” criminal activity, as opposed to criminal activity that is imminent of ongoing (did not decide whether these detentions are permissible for “all past crimes,” though).

Permissible Scope of “Stops,” “Frisks,” and “Sweeps”:

Haynes v. Florida: Haynes, Burglar-Rapist Δ, is seeking to suppress his fingerprints as the fruit of an illegal detention when officers went to his house without a warrant, warned him that he would be arrested, and he went with them to the police station to avoid an arrest for fingerprinting that, ultimately, implicated him in a burglary/rape.- Held : Fingerprints taken from a suspect violate the 4th Amendment when the suspect

was unwillingly taken from his home under the threat of arrest and only then were the fingerprints taken.

- Detention for the purpose of fingerprinting is subject to 4th Amendment constraints and may exceed the temporary seizure limits set forth in Terry.

- The 4th Amendment line is crossed when, without a warrant or probable cause, police forcibly remove a person from his home, or other place where he is entitled to be, and transport him to the police station where he is detained, although briefly, for investigative purposes.

Concurring:- If police want to detain an individual for on-site fingerprinting, the intrusion would

have to meet the Terry standards.- BUT, I disapprove of rendering an advisory opinion on this point.

Fingerprint are NOT a Search Rule: This case does NOT rule that brief field detentions for the purpose of fingerprinting are unlawful.- The 4th Amendment would permit “seizures” for the purpose of fingerprinting, so

long as:1. there is reasonable suspicion that the suspect has committed the act, AND 2. that the fingerprinting will establish or negate the suspect’s connection with

the crime, AND3. the procedure is carried out with dispatch.

United States v. Sharpe: Evasive drug vehicle drivers were convicted of drug violations, but contend that their 4th Amendment rights were violated as they were detained for 20 minutes, but the detention was caused by his co-conspirator’s fleeing the scene, as there is no bright line time limit.- Held : Under the 4th Amendment, it is reasonable under the circumstances facing the

police to detain the driver of a vehicle loaded with evidence for about 20 minutes when his detention was caused by his co-conspirator’s fleeing the scene, as there is no bright line time limit.

- The officers acted diligently and reasonably and the defendants were detained for a long period because of the fact that one of the defendant tried to flee from the police.

- This stop was a Terry investigative stop and not an official arrest because the officers acted diligently and reasonably to conduct the investigation as quickly as possible and any delay was due to the actions of the defendants.

- Rule: If an investigative stop continues indefinitely, at some point it will no longer be an investigative stop.

Duration Test: No bright line rule.- Officers must act:

o diligently and reasonably to conduct the investigation as quickly as possible, o in a way that were likely to confirm or dispel their suspicions quickly, during

which time it was necessary to detain the Δ.- Question is not whether another alternative was available, but whether police acted

unreasonably in failing to recognize or pursue it.

United States v. Montoya de Hernandez: Δ was suspected of being an “alimentary canal” smuggler (that she swallowed the drugs). She refused to consent to an x-ray, and was detained for 16 hours, until she pooped and drugs came out.- Because of the refusal to cooperate, the only choices were a longer detention or

releasing someone probably carrying drugs.

U.S. v. Sokolow Rule: - It is required that the “least intrusive” means be used to investigate, BUT - The “reasonableness of an officer’s decision to stop a suspect does not turn on the

availability of less intrusive investigatory techniques.”

Hiibel v. Sixth Judicial Court of Nevada: Held that it is not unreasonable for officers to require a suspect who is lawfully detained to identify himself, because the Court balanced the State interest in knowing who is detained with his 4th Amendment rights.- Identification request MUST be related to the offense.- Nevada law made it a crime for obstruction.

United States v. Place: Place, Δ, was convicted of possession of cocaine when, after acting suspiciously (lying to officers his bags had already been searched) he refused consent to search, so his luggage was held for 90 minutes until the bags could be alerted to by a “drug-dog,” upon which they were seized.- Held : The 90-minute length of detention was unreasonably long and constituted a

violation of the 4th Amendment. However, the use of a drug-sniffing police dog to obtain probable cause was NOT a search, and thus does not fall under the 4th Amendment.

- Detaining Luggage Test : Balancing test applied to weigh the extent of the intrusion on the 4th Amendment rights against the government interest.

o In this case, the length of detention was unreasonably long and was a seizure in the absence of probable cause.

o NY Agents could have cut the bags off in Laguardia.- “Canine-Sniff” Rule : Not a search, as contraband discloses only the presence or

absence of narcotics, a contraband item.

Concurring:- Terry did not address seizures of property, and the Court should not extend Terry.

o Inanimate objects require probable cause, but people can be seized based on reasonable suspicion.

- It is problematic that the Court is starting to use Terry to say that the 4th Amendment is not violated so long as the officers act reasonably. That is not the law.

Michigan v. Long: Long, wasted and ditch hitting driver, was convicted of marijuana possession when he, wasted, crashed into a ditch and when getting his registration for the officers, they saw that he had a big knife on the floor. He sought to suppress marijuana found when they searched his car for weapons and found a leather pouch filled with it.- Held : A suspect’s 4th Amendment rights were NOT violated when officers saw a

knife in his car and then searched the passenger component of his car for weapons before letting him near it, finding a leather pouch filled with marijuana in the process.

Reasoning:- Investigative procedures involving suspects in vehicles are really dangerous to police,

so these rules exist:o Police may frisk person during a regular traffic stop if reasonable belief they

are armed and dangerous.o Police can reach into a car to get a weapon, during a stop, based solely on an

informant’s tip.- Here, it would have been dangerous to let the Δ near his car without searching it for

weapons which would be within his control.- Balancing test clearly allows:

o Automobile Frisk Rule: Search of the passenger compartment to uncover weapons, as long as they possess a particularly and objectively reasonable belief that the suspect is potentially dangerous.

Dissent:- Terry only authorized limited searches of persons for weapons.

Pennsylvania v. Mimms (US 1977):- Because of the danger to officers, the Court held the balance of interests dictated the

conclusion that it is reasonable for officers to routinely order drivers to get out of their vehicles.

Maryland v. Wilson (US 1997):- Extended the Mimms Doctrine to passengers.

Minnesota v. Dickerson: Officers saw Dickerson, Δ, coming out of a crack house. When Δ saw the officers, he turned, and started walking the opposite direction. The officers, from the behavior of the defendant and from their past experience, had reasonable suspicion that the defendant was involved in illegal conduct. The officers stopped the defendant to question and frisked him for weapons. The officer searching the defendant did not feel any weapons, but he did feel something which he felt could be cocaine. The officer closely felt the object, took it out of defendant's pocket, and it was cocaine.

- Held : The 4th Amendment DOES NOT permit the seizure of contraband detected through a police officer’s sense of touch during a “Terry Frisk.” Probable cause is required.

- Purpose of Terry stop is not to discover evidence of a crime, BUT to locate weapons. The crack was just crack, not a weapon, AND was not in plain view.

- If police lack probable cause to believe that an object in plain view is contraband without conducting some type of further search (not “immediately apparent”), the plain-view doctrine does not apply.

- In the current case, the officer did not have the probable cause to believe that the object was cocaine and he had to do further search to come to this conclusion.

- Since the officer conducted further search to make sure that the object was cocaine, he clearly went beyond Terry’s limits.

Concurring (Scalia’s Literal “At the Time” Approach):- “Unreasonable Searches and Seizures” should be determined by what it meant when

it was adopted, not what it means today.- Based on policy, permitting a frisk is important for safety, but so much for finding

drugs.

Maryland v. Buie: Two men committed an armed robbery of a pizza parlor. One of the robbers was wearing a red jogging suit. The same day police obtained an arrest warrant for of Buie and his suspected accomplice Allen. One officer proceeded to the staircase leading to the basement, where he yelled police come with your hands high. Buie complied with the officer’s demand and was taken into custody. A detective arrived on the scene shortly after and did a through sweep of the basement to make sure that no other suspects were hiding down there. He discovered out in plain view a red jogging suit so he grabbed it and took it into evidence, it was ultimately identified as the clothes worn in the robbery and it was used against the Δ at trial.- Held : An investigatory sweep of the a robber’s and killer’s, Δ’s, house, done by

police, after the Δ was in custody was reasonable when the officers were looking to see if there were any accomplices, and the jogging suit found as a result of the follow up sweep is admissible, since there was reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene.

- “Protective Sweep” Rule : Quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or others.

o “Reasonableness” should be decided by a balancing test of the individual’s interests versus the government’s interest.

o Once the search for Buie, pursuant to the warrant, was over, there was no longer justification for entering the rooms that had not yet been searched.

- Protective Sweep Rule : “Search is authorized ONLY WHEN justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene.”

Dissent:- The court for the first time extends Terry v. Ohio into the home, dispensing with the

4th amendment general requirements of a warrant and probable cause and carving a “reasonable suspicion” exception for protective sweeps in private dwellings.

- Police must have probable cause to fear that a hidden confederate of an arrestee might harm them before they may sweep an entire home.

Terry Outline:

When does Terry apply?Reasonable suspicion crime is afoot to stop, reasonable belief of armed danger for a frisk.- Terry- Mendenhall- Bostick- DraytonBus Cases: Officers were not coercive, the Δs put themselves in the awkward situation. “Feeling free to end the encounter” is the standard, not “actually being free to leave.”- Wardlow- White - Florida v. J.L.

- Hodari D. (must submit before the 4th Amendment stop occurs).

Scope of Terry:- Hayes- Sharpe- Place

- Long- Dickerson- Buie (Arrest case, this is an “extension of the search incident to arrest doctrine”)Important Notes:- Florida v. Royer- U.S. v. Sokolow- Mimms- Wilson

Dog Sniff Cases:

Precedent Cases:- Terry- Katz- Kyllo- Jacobsen- Place- Edmond- Sitz- Royer

- Gates: Need to get enough information to merit probable cause to search a house.

Sniff Cases:- Rabb I and II- Lilley- Caballes

State v. Rabb (Fla. 4 th DCA, 2005) : Facts:- Based on an anonymous tip that defendant was growing cannabis in his residence, the

police conducted surveillance of defendant's home. They had his specific address and followed him in his car until he made an improper lane-change and was “going too slowly.”

- Defendant was stopped in his vehicle and officers observed cannabis-growing books and a video on his car seat. Officers asked him questions about growing marijuana. He said he was not, and was just doing drywall work in the house. He then asked for a lawyer.

- A drug detector dog walked around and alerted to the car, and a cannabis cigarette was recovered from ashtray and from inside his sock.

- THEN a drug dog also alerted outside of defendant's residence. Based on this dog-alert, search warrant for the house was obtained, and drugs were seized.

Holding:- The court, likening the use of the dog to the use of a thermal imager, holds that

intrusions into the constitutionally protected area of defendant's house violated his expectation of privacy.

- There was no independent and lawful evidence that established probable cause for the warrant.

Reasoning:- Rule : In order to be classified as a search, law enforcement conduct must violate a

constitutionally protected reasonable expectation of privacy.- The Fourth Amendment protects people, not places, BUT the determination of the

protection afforded those people requires reference to a "place." o Place : US Supreme Court was not addressing the use of law enforcement

investigatory techniques at a house, but rather only whether a dog sniff of luggage in a public airport constituted a search under the Fourth Amendment.

The role of "place" in Fourth Amendment jurisprudence was instrumental in the decision in Place.

- When considering whether law enforcement activity at a house constitutes a search, it is necessary to consider the constitutional protections afforded a house throughout the long history of the Fourth Amendment.

o At the center of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.

o Physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.

o The Fourth Amendment operates to draw "a firm line at the entrance to the house.

RABB RULE: FRONT PORCH OF A HOUSE IS OFF LIMITS FOR DOG-SNIFFS.- Based on Kyllo Rule : Obtaining by sense-enhancing technology any information

regarding the interior of a home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area," constitutes a search--at least where the technology in question is not in general public use.

o The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing a home on a public thoroughfare.

o However, the use of enhancement to human senses often entails more than an unshielded glance at a house believed to obtain contraband.

- Place and Jacobson: Argue that the dog-sniff only exposes the existence of contraband, and there is no reasonable expectation of privacy for contraband:

o Kyllo is different, though, because it deals with a house.

Hotel Room Rule – Different Expectation of Privacy: Despite the fact that hotel rooms are constitutionally protected areas, individuals do not have a reasonable expectation of privacy in public areas outside a hotel room, such as hallways. The fact that a dog, as odor detector, is more skilled than a human does not render the dog's sniff illegal.

o A hotel room may be nearly identical to a house for Fourth Amendment purposes, but a hotel room is not a house, as it is neither as private nor as sacrosanct.

Rabb Dissent:- No 4th Amendment violation because the front door was accessible from the street,

and was not part of the protection granted to a house.- No expectation of privacy is salesmen can walk up to it.- Sniff only exposes a contraband item, nothing more.- A dog is not a “sophisticated piece of equipment.”

Illinois v. Caballes (United States Supreme Court, 2005): Trooper stopped Caballes for speeding, and when he radioed it in, another officer, sua sponte, came to the scene and walked his drug-detection dog around the Δ’s car. Dog alerted to the trunk. Based solely on that alert, the officers searched the trunk, found marijuana, and arrested the Δ. The whole thing took less than 5 minutes. No reasonable suspicion that Caballes was involved in any type of drug activity.- Held : The 4th Amendment does not require reasonable, articulable suspicion to justify

using a drug-detection dog to sniff a vehicle during a legitimate traffic stop because it is not a search under the 4th Amendment.

o Original stop was justified for speeding, and detention not extendedDissent: (Souter)- SCOPE WAS EXTENDED – Police cannot change a traffic investigation to a drug

investigation:

o “No Nexus” between the police stop and that Caballes violated any drug law.- The premise that dog sniffs are “sui generic” is untenable, as the Courts have learned

that trained sniffing dogs err.- The infallible dog is a legal fiction, hence the alert may lead to the disclosure of

intimate details without revealing contraband. (840).- The dog’s reaction may create reasonable suspicion or probable cause to search a

container or enclosure, since the 4th Amendment does not require certainty of success to justify a search.

Dissent: (Ginsberg)- Illinois Supreme Court employed the Terry Test to decide the overall reasonableness

of the stop.- Court determined that the absence of specific and articulable facts supporting the

canine sniff made this an illegal search.- Traffic stop is more like a Terry Stop than an arrest.- “Under this decision, every traffic stop could become occasion to call in dogs, to the

distress and embarrassment of the law-abiding population.- Indianapolis v. Edmond : Drug interdiction checkpoint violated the 4th Amendment

BECAUSE a “general interest” in crime control did not justify the stops.o (Sobriety checkpoints are allowable because they are designed to eliminate

“immediate risk to life and limb.”)

POST CABALLES RABB RECONSIDERATION:United States Supreme Court remanded for reconsideration in light of Illinois v. Caballes:

State v. Rabb (AFTER REMAND):- Appellate court reconsidered and concluded that its original affirmance of the trial

court's ruling granting defendant's motion to suppress should be upheld. - The appellate court noted that the Fourth Amendment was "place sensitive" and that

very few places were entitled to as much constitutionally-protected reasonable expectation of privacy as the home.

- It further found that the same could not be said about the automobile in the Caballes decision, which had a diminished expectation of privacy because of its mobility and fact that it was often in the public's plain view, or a dog sniff at an airport, where travelers could expect such conduct given the numerous security measures imposed there.

- “Place” matters in determining the expectation of privacy.

Lilley v. State (Arkansas Supreme Court, 2005): Drug courier, Lilley, seeks to suppress marijuana found in his trunk when, although the traffic stop was over, and the Δ ’s license and registration were handed back, and the officer then walked the dog around his car, claiming that he had reasonable suspicion because the car rental was one-way, the rental was in another person’s name, suspect was nervous, and the car smelled of air freshener.- Held : Officer did not have reasonable suspicion to walk a drug-detection dog around

a vehicle AFTER the lawful traffic stop ended when the car rental was one-way, the

rental was in another person’s name, suspect was nervous, and the car smelled of air freshener.

Rules:- Once the legitimate purpose of a traffic stop is over, the officer must have reasonable

suspicion that the person has been involved with a felony in order to detain the person for a canine sniff.

- A person is seized under the 4th Amendment if a reasonable person would not think they are free to leave.

o Officer never told Δ he was free to leave, and reasonable person would have agreed.

- Reasonable suspicion is based on the totality of the circumstances, and police must have specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity. Factors are:

o Suspect demeanoro Manner of suspecto Officer’s past knowledge of suspecto Suspect’s clothes, bulges in themo Whether suspect is carrying anythingo Time of dayo Overheard conversation with suspecto Location of suspecto Information from known/unknown informantso Whether suspect is involved with “shady people”o “Incidence of crime in the immediate neighborhood.”o Suspect’s effort to conceal an articleo Apparent effort of suspect to avoid identification or confrontation by the

police- The reasonable suspicion analysis must focus on the facts the officer had BEFORE

the traffic stop was over.

Lawson’s Question:- Does it matter what the dog is sniffing for?

o Yes, because a dog sniffing for bombs would be even more widely acceptable, because of exigency and the expectation of privacy.

o Look to balancing the test: Government’s Side is Strengthened if special governmental need:

emergency, present danger Citizen’s reasonable expectation of privacy from unreasonable

searches.

Special Balancing Tests:

School Searches:- Teacher’s Search triggers the 4th Amendment, since they are sponsored by the

government, not fulfilling a family-type role.

New Jersey v. T.L.O. (reasonable suspicion child violated a mere school rule is enough to search a student): Student, T.L.O., is charged with delinquency but argues that her 4th Amendment rights were violated and evidence found against her and her confession should be suppressed, when she was searched when accused of smoking at school and a search of her purse led to finding marijuana and proof that she was dealing it.- Held : A high school student’s 4th Amendment rights are violated when the student

was accused of smoking at school and a search of her purse which was ordered by the an administrator led to finding marijuana and proof that she was dealing it; however, because of the reduced expectation of privacy at a school, reasonable suspicion at the inception of the search is enough to allow an initial search, AND whatever was found led to more reasonable suspicion to search for evidence.

- Teachers and administrators do not fill the parents’ role, but are State representatives.- Rule : 4th Amendment applies to teachers and administrators.

o Whether the 4th Amendment is violated in this case should be based on a balancing test.

- Trigger : In order to justify a search under the 4th Amendment at a school, reasonable suspicion is the standard applied, not probable cause.

o Reasonable suspicion encompasses school infractions, which can be extremely minor.

- Scope : Search for EVIDENCE is allowed (unlike for weapons in Terry) so long as the search is reasonably related to the infraction, AND must not be excessive in light of the:

o age of the student Adult’s expectation of privacy is higher than a child’s

o sex of the student o nature of the infraction

- Rationale : o Lowered expectation of privacy at a school and a strong government interest

in teaching the kids, also by keeping them in order.o Probable Cause and Warrant Requirement would be impractical,

Checkpoints: Reasonableness turns on the stated government purpose (keeping highways safe = ok; general crime prevention = not ok; information seeking to solve a crime = ok because most like a stop to talk).

Michigan Dep’t of State Police v. Sitz: Stopped and Arrested drivers for DUI challenged the 4th Amendment constitutionality of a State’s use of highway sobriety checkpoints that was applied to everyone on a road, despite a reason to check that specific person.- Held : Although there is some type of detention that triggers the 4th Amendment, a

State’s use of highway sobriety checkpoints is reasonable in light of the 4th and 14th Amendments when it is applied to everyone on a road, despite a reason to stop that specific person.

- Rule: 4th Amendment “seizure” occurs when a driver is stopped at a checkpoint.

- Rationale: Look to the balancing test – Government interest in stopping drunk driving is high, while the intrusion of 25 seconds on an individual is low.

o Factors: “Degree to which the seizure advances the public interest.” Publicized before hand Brief stop Only pull over if reasonable suspicion

o DETERRENT: Although only a small number of drivers are actually arrested, BUT deters drivers from being put into that position.

Stopping a driver at a checkpoint is FAR less intrusive than a roving-patrol stop (which is unconstitutional).

Dissent:- Court ignores that this class of minimally intrusive searches generally requires

“reasonable suspicion” to be considered reasonable.- Boarder Search has an even lower expectation of privacy than a random stop.Note on Case: Upon remand, the Michigan Supreme Court found that this Sitz roadblock violated the MI constitution provision against unreasonable searches and seizures.

City of Indianapolis v. Edmond: City began operating vehicle checkpoints to interdict UNLAWFUL DRUGS, as general crime prevention. There were 6 such roadblocks, stopping a total of 1,161 vehicles and arresting 104 motorists in about 4 months—58 for drug related crimes (hit rate of 9%--very high compared the hit rate in Sitz/Martinez-Fuerte cases).- Held : A State’s use of highway roadblocks to hold general crime prevention checks

for ILLEGAL NARCOTICS VIOLATES the 4th Amendment when it is applied to everyone on a road, despite no reason to stop that specific person.

- The stop does constitute a 4th Amendment seizure, but the fact that the dogs are used does not create a search of the initial stop.

- Boarder/DUI Checks Distinguished: o The other checkpoint cases the Court allowed them because they were

designed primarily to serve purposes closely related to the problems of policing the boarder or the necessity of ensuring roadway safety.

o Because the primary purpose of the Indianapolis checkpoint program is to thwart ordinary criminal wrongdoing, the program contravenes the 4th Amendment.

- Primary Purpose of the Checkpoint Rule: Look to the Primary Purpose of the stop:

o General Crime Prevention purpose—crime prevention, but this is too broad. o State argues that drugs are an especially severe problem, but the gravity of the

problem alone cannot be dispositive.o Unlike Sitz, these checkpoints did not serve a purpose specifically aimed at

highway safety, as the impact is too indirect.- Rule : If there is a Constitution reason for a checkpoint, arrests for narcotics found as

a secondary purpose are fine.Dissent:

- These stops serve the same legitimate interests as preventing drunk driving and checking licenses and registration.

- The primary purpose of the stop should not be controlling. - The reasonableness of the checkpoints turns on whether they effectively serve a

significant state interest w/minimal intrusion on motorists. - The Court has created a new test, the primary purpose test, which is ill suited to brief

roadblock seizures. Dumb Thomas: - Sitz and Martizes were wrongly decided, this whole system is flawed.

Illinois v. Lidster: Lidster, DUI Δ, is challenging the lawfulness of his arrest and conviction on he grounds that the government obtained its information against him through the use of a “hit-and-run” checkpoint that violated the 4th Amendment.- Held : A State’s use of highway roadblocks to obtain information about a hit-and-run

is reasonable in light of the 4th Amendment when it is applied to everyone on a road, despite no reason to stop that specific person, since it has a different primary purpose of finding a killer.

o Primary Purpose of the stop was not to stop “general crime” but to catch a killer.

o Car has lowered expectation of privacy, and seeking information is not as intrusive as most roadblocks trying to catch the driver in crime.

- Balancing : Public concern to stop the killer was grave, and the police tailored the checkpoint to be the most effective (time and locale), and only minimally interfered with the citizens’ liberty.

Dissent:- The likelihood of catching anyone was low, and the Court should not interfere with

lower court decisions.

Drug Testing:

Skinner v. Railway Labor Executives’ Ass’n: Railway Labor Executives’ Ass’n is suing for an injunction on the grounds that the administrative rule requiring that railway employees submit to automatic drug and alcohol testing upon an accident taking place or individual testing upon reasonable suspicion violates the 4th Amendment right to protection from unreasonable searches and the warrant requirement.- Held : Regulations ordering automatic drug and alcohol testing upon a Railroad

accident taking place or individual testing upon reasonable suspicion of use does not violate the 4th Amendment, since exceptions to the warrant requirement are granted when “special needs, beyond the normal need for law enforcement, make the warrant requirement and probable-cause requirement impracticable.”

- Blood Test Rule : Compelled intrusion into the body for blood to be analyzed for alcohol content constitutes a 4th Amendment search, and infringes upon an expectation of privacy that society deems reasonable. HOWEVER:

o Rule : Exceptions to the warrant requirement are granted when “special needs, beyond the normal need for law enforcement, make the warrant requirement and probable-cause requirement impracticable.”

- Balancing Test for Intrusion Rule : What is “reasonable” depends on all the circumstances surrounding the search or seizure and the nature of the search or seizure itself.

o Government Interest – Stopping dangerous future accidents.o FRA has interest in preventing dangerous accidents.

Drug and alcohol use evidence would be going away, so no warrant should be required since the evidence is always going away.

Diminished expectation of privacy for R.R. employeeso RR regulators are like school administrators.o Breath tests are not very intrusive, and blood tests are shown to be important

to stopping danger.o Breath tests reveal nothing more than alcohol in the blood, and are done in

Dissent:- Allowing these searches, when there is no evidence of drug or alcohol use, allows

basic constitutional rights to fall prey to momentary emergencies.- Blood tests can show epilepsy, depression, diabetes, etc.

National Treasury Employees Union v. Von Rabb: Court upheld a US Customs drug testing program for employees who wanted to transfer to positions that were drug-seizure related, required carrying a firearm, or access classified information.- Court held this was constitutional because of the high Government interest in keeping

the borders safe, and there would be great opportunity to take drugs for an addict since the agent is exposed to it all the time.

- Officers knew ahead of time that if they went into that area, they would be subject to drug testing.

Vernonia School District 47J v. Acton: Court upheld the constitutionality of a school board policy requiring high school and grade school students that wanted to play sports to consent to random urinalysis drug testing, based on the balancing test analysis.- Students are already compromised by being required to take physicals, use locker

rooms, and be under the custody of school officials.- Also, the urinalysis only looks for drugs.- Risk of immediate harm to the students and their competitors is particularly high.- Urinalysis is not a big invasions since it is like using a public restroom.

Board of Education of Independent School District No. 92 v. Earls: Court upheld the constitutionality of a school board policy requiring high school and grade school students that wanted to participate in ANY extracurricular activities to consent to random urinalysis drug testing, based on the balancing test analysis.- Tests are designed to detect ONLY illegal drugs, and the court applied the same

Vernonia reasoning.

Chandler v. Zell Miller: Libertarian Party nominees are seeking an injunction against the GA, and Governor Zell Miller, on the grounds that a GA law required state official candidates to have drug test done 30 days before qualifying for a nomination violates the 4th Amendment.- Held : A suspicionless drug-testing search is unconstitutional under the 4th

Amendment when it is a per se requirement that state official candidates to have drug test done 30 days before qualifying for a nomination, since there was admittedly no problem/threat of abuse that needed to be addressed.

- Generally, a 4th Amendment search needs to be based on individualized suspicion of wrongdoing, unless there are special needs, beyond the normal need for law enforcement.

- Railway employees, unlike political candidates, have a historical diminished expectation of privacy.

- There must be a significant threat that merits a need for drug testing, and there is none articulable in this case.

Ferguson v. City of Charleston: Court found a suspicionless drug test program unconstitutional under the 4th Amendment when pregnant womens’ blood was tested for drugs and positives were forwarded to police.- Post-labor drug detection was automatically sent to the police, BUT pre-labor positive

tests were only sent to police upon a 2nd positive test or a post-labor positive test.- This is different and unconstitutional because a 3rd party is brought in for crime

enforcement, which is different than merely for protecting the mom and baby.

Border Searches: Lowest expectation of privacy because government has need to prevent unwarranted entry of persons or contraband at the border.

- If property would be damaged during the search, reasonable suspicion to search would likely be required (Court is unclear – but probable cause would be required in the interior of the country).

- “Routine search” at the border requires no reasonable suspicion, probable cause, or search warrant.

United States v. Flores-Montano: Marijuana in gas tank trafficker is seeking to suppress marijuana recovered from his tank under the 4th Amendment. Customs tapped the gas tank and it sounded solid. This was suspicious enough to call a mechanic to take it apart. The officers and mechanic found marijuana bricks. The whole process took less than 45 minutes.- Held : A suspicionless search is constitutional under the 4th Amendment when it leads

border patrol to order that a gas tank be taken apart to search for drugs.- Government’s interest in protecting unwarranted entry of persons or contraband is at

its zenith at the border.o People constantly try to sneak in contraband at the border, and use the gas

tank to do so, often.

- The gas tank searches seen as routine, and this gas tank was not damaged, BUT if another type of search would damage personal property, it may fall under a stricter standard.

Higher than Usual Standards of Reasonableness:

Tennessee v. Garner: Deceased suspect’s father sued for damages under 42 USC § 1983 for violations of his son’s constitutional rights on the grounds that the “seizure” of his son through shooting him to death was an “unreasonable seizure” in violation of the 4th Amendment. Officers responded to a nighttime burglary, and one officer chased the suspect out the back of the house. The officer saw the suspect’s hands and did not think he was armed. The suspect tried to climb over a fence to escape, after the officer told him to “Stop, Police!” Officer then fired and killed the suspect, shooting him in the head, as he tried to escape. TN Statute states that any force necessary to keep someone from escaping is allowed.- Held : Shooting an unarmed suspect constitutes a “seizure” pursuant to the 4th

Amendment, and, shooting a suspect who was trying to flee may be (as here) UNREASONABLE seizure based on the totality of the circumstances, such as not thinking the criminal is armed and/or dangerous.

- Use of Force/Deadly Force Rules :o Police officer may not seize an unarmed, non-dangerous suspect by shooting

him dead.o If the suspect threatens the officer with a weapon or there is probable cause to

believe that he has committed a crime involving infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

- Burglary is a serious crime, but not dangerous enough to justify the use of deadly force.

Dissent:- The use of deadly force to stop a burglar is not unreasonable, since:- Burglary poses a serious threat to the welfare of people being burglarized, since

burglaries generally lead to other serious and violent crimes.- The effectiveness or popularity of a police procedure does not determine its

constitutionality.

Schmerber v. California (BAC Blood Test Constitutional): Δ was taken to a hospital for treatment after being in a crash. At the hospital, it was apparent hat he was drunk. Police officer ordered that a blood sample be taken, and the sample came back as intoxicated.- Held : An arresting officer is free to waive the warrant requirement, pursuant to the

search incident to arrest exception to the warrant requirement, when the search is to ascertain the BAC of a person’s blood for proving intoxication and proving BAC is time sensitive.

- Exigency is the main reason for allowing this intrusion and abrogation of the warrant requirement.

o % of alcohol in someone’s blood begins to reduce as soon as the drinking stops.

o Thus, this is a reasonable search incident to arrest.o Δ’s blood was taken in a reasonable way, namely by a doctor.

Winston v. Lee (Risky Surgical Removal Likely Unconstitutional – depends on the balancing interests): Shot store robber is seeking an injunction against the State surgically taking a bullet out of his chest against his will when it would prove incriminating against him, but he also would be put to serious health risk through the procedure.- Held : A State could violate the 4th Amendment through compelling a suspect to

undergo a slightly risky surgery in a search for evidence of a crime which was lodged in his body, based on the balancing test between the individual’s 4th Amendment rights and any compelling State interests.

- Rule : Medical intrusion is reasonable when normal, medical procedure. The more out of the ordinary the procedure is, the more likely it is to be ruled Unconstitutionally intrusive.

o Compelled surgical intrusion into an individual’s body for evidence implicates expectations of privacy and security if such a magnitude that the intrusion may be “unreasonable” even if likely to produce evidence of a crime.

o Crucial factors include risk to the suspect, intrusion upon the suspect’s bodily integrity, compelling need for the evidence.

Zurcher v. Stanford Daily: University newspaper challenging the search of its newsroom for pictures that would incriminate police officers’ assailants claimed that the search violated the 4th and 1st Amendments, and constituted searching an innocent 3rd party for evidence of a crime.- The Court ruled that the 4th Amendment standard should not be heightened in this

case.

Lawson’s Handout Cases – Not for this section…:

United States v. LaLerie: Officer took a bag out the luggage compartment of a bus and asked for the owner’s consent to search it. The search turns up cocaine, and the Δ seeks to suppress it, claiming that the luggage was seized by the officer when it was taken from the bus.- Court ruled that there was no “meaningful interference with the individual’s

possessory interests in property” so there was no seizure of the luggage.

Jones v. Wilhelm: Judge gives a warrant, and the officer was not sure which apartment he had to go into. He substituted his own knowledge and guessed that it was a certain one. He guessed wrong, and then realized that he probably was mistaken.- Warrant is supposed to be clear to the officers executing the warrant, not just stating

general knowledge.- If an officer makes a material mistake about the particular place to be searched and

keeps going, the “honest officer mistake” does not apply.

Chapter 13: The Sources of and Rationales for the Exclusionary Rules:

- Exclusionary Rules : Judicial remedy to the violation of a Constitutional right (not a Constitutional right).

o These rules prevent the government from introducing at trial evidence gained through a violation of one of the aforementioned Constitutional dictates.

4 th Amendment Two Step Analysis :1. Is there a violation of the 4th Amendment? (See earlier cases)2. Should the evidence of the alleged violation be excluded? (See Weeks, Mapp,

Silverthorne, Murray, Nix, etc.).a. If excluding will not deter officer in the future, the Court would not

exclude the information.

Weeks v. United States (only applied to federal prosecutions until Mapp ) : Weeks, Δ, seeks to suppress evidence taken from his house when he was arrested without a warrant and his house was searched twice without a warrant, in violation of the 4th and 14th Amendments.- Rule : If the 4th Amendment is violated, evidence gathered should be suppressed from

evidence.o 4th Amendment was penned to eliminate the “general warrants” and “writs of

assistance” that allowed the British government to rummage through a person’s house and seize anything.

o This violated the basic premise that “a man’s house was his castle, not to be invaded by any general authority.”

- Reasoning : If evidence seized illegally can still be introduced as evidence, the 4th Amendment is of no value, and will be trampled by officers.

Remedies other than exclusion which could be used:- Another remedy would be civil action of trespass against the officers by the

homeowner. o But this would be onerous for the citizen to prove.

- Prosecuting officers through criminal law could be invoked.o Generally reserved for other crimes.

- Could “discipline” the officers internally.

Mapp v. Ohio (extends Weeks to state courts): Mapp, Δ, claims that the obscene materials for which she was ultimately convicted were discovered in an illegal search of the house, since there was no search warrant, and should thus be suppressed pursuant to the 4th Amendment.- Held : Evidence obtained by searches and seizures in violation of the 4th Amendment

of the Constitution are NOT admissible in a state court, as this would conflict with the federal rule.

o Consistency between the State and Federal Courts stops bringing cases in one or the other so that unconstitutionally obtained evidence is never useful.

- Without the Weeks Rule, the assurance against unreasonable federal searches and seizures would be a mere “form of words,” valueless and undeserving of mention in a perpetual charter of inestimable human liberties.

o “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.”

o The right to privacy is implicit in the concept of ordered liberty and basic to a free society.

o Moreover, it is insensible to allow unlawfully seized evidence, because it encourages disobedience.

o Finally, one can still investigate and prosecute criminals, while working under a system of excluding illegally obtained evidence as proven by the federal courts.

Concurring:- Another remedy would be civil action of trespass against the officers by the

homeowner. o But this would be onerous for the citizen to prove.

Dissent:- Half of the states don't use the exclusionary rule and are constitutionally free to

choose whether or not to follow it. - States should be free to follow their own methods for dealing with their criminal

problems. - The 14th Amendment does not empower this court to mold state remedies for

arbitrary intrusion by the police. Voluntary state action should not be replaced with federal compulsion.

Elkins v. United States: Policy and Purpose of the 4th Amendment Exclusionary Rules- “Rule is calculated to prevent, not repair. Its purpose if to deter – to compel repect

for the constitutional guaranty in the only effectively available way – by removing the incentive to disregard it.”

Michigan v. Tucker:- Δ sought to suppress testimony of a witness who heard her illegally coaxed testimony

to an officer when no Miranda rights were read.- The Witness’s testimony was deemed admissible, even though it derived from

inadmissible statements.

Winthrow v. Williams:- Stone v. Powell Rule: Federal habeus corpus relief is unavailable for a state prisoner

who claims that his conciction rests on evidence obtained in violation of the 4th Amendment if the state has afforded him a full and fair opportunity to litigate that contention.

- Winthrow held this rule does not extend to Miranda violations.

Chapter 14: The Scope of and Exceptions to the Exclusionary Rules:- Because this generally excluded evidence is highly reliable and probative, the Court

leans towards admitting it where an exception can be carved out.

Two Pronged Test for Exclusion:1. Individual Constitutional rights must be violated (Standing), then2. Fruit of the illegality should be excluded, unless falls under an exception:

a. Independent Sourceb. Inevitable Discoveryc. Attenuationd. Good Faithe. Impeachment

- Exceptions Carved out Based on Societal Cost Balancing Test :o Societal Cost is too high to exclude in every circumstanceo Cases lean towards finding for the Government

- Rationales for Exclusion/Admittance :o Promote judicial integrity and deterrence of abusive police action.o Prevent the Government from benefiting from abuseso Deter violation of individual constitutional rights

The “Standing” Limitation: Only individuals whose rights have actually been violated can seek to suppress evidence obtained through a 4th Amendment violation.

Standing Test:- “How is the violation done?” and - “Against Whom is the violation done against?”

Standing Hypo: A and B are speaking through a telephone booth. During the conversation they implicate C. Can C seek exclusion of the conversation? No, because C’s rights were not violated. A and B’s rights were violated instead.

Alderman v. United States:- Government admitted that it overheard conversations through unconstitutional

electronic eavesdropping.- Δs claimed that any evidence that was a product of that surveillance had to be

suppressed, and that it was inadmissible against any co-defendants or co-conspirators.- Supreme Court disagreed:

o Standing Rule : “Suppression of the product of a 4th Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.”

Rakas v. Illinois: Vehicle passengers challenge that they have to standing to enforce the 4th Amendment when their rights were violated, but the violation was not made against their vehicle or gun. Police officers found a gun and shells under the front passenger seat of the car. The Δs were just passengers and they did not own the car. Δs were convicted

and their motion to suppress the evidence was denied because the trial court found that they had no standing over the car or the gun, which they did not own.- Held : Non-property owners of an invaded vehicle and of an illegally seized gun DO

NOT have standing to suppress the items when they were used as evidence against them, since they do not have a property interest in the vehicle or gun.

- Standing Rule : 4th Amendment rights are personal rights, which, like some other constitutional rights, may not be vicariously asserted.

o The 4th Amendment is designed only to protect personal rights and the defendants can claim no such rights because the car did not belong to them.

- Standing Test :o Whether proponent of a legal right has alleged an “injury in fact,” ando Whether the proponent is asserting his own legal rights and interests rather

than basing his claim for relief upon the rights of 3rd parties.

Hypo: Maculay Culkin was passenger with friends, friend pulled over. Friend consented to search of car and officers found weed and cash. Culkin carrying Zanex and other drugs. Would Culkin have standing?- Likely, since he was more than merely present, like the passengers in Rakas.- Culkin had a reasonable expectation of privacy in his bag, which would give him an

expectation which could lead to a violation.

Lawson says these next two cases are important:

Minnesota v. Olson: “An overnight guest has a legitimate expectation of privacy in the host’s home which entitles the guest to object to a warrantless entry to arrest him.”- Sleeping somewhere essentially extends the owner’s home privacy rights to the guest.

Rowlings v. Kentucky: Police discovered drugs in purse belonging to passenger, but Δ claimed it was his and he should, thus, be allowed to challenge the search of the purse.- Court disagreed and ruled that there was no reasonable expectation of privacy for a

drug dealing friend in woman’s purse.

Jones v. United States: Court ruled that Δs who are legitimately on premises when search occurs have standing to challenge the search.

United States v. Salvucci (OVERRULED JONES): Court abolished the Jones “automatic standing” rule.

United States v. Payner: IRS ordered illegal searches on purpose of banker’s briefcase, since they knew that the bank customers they were trying to bust did not have standing to sue. The Court denied the Δs standing to apply the 4th Amendment against the IRS.

Minnesota v. Carter (home will not always give everyone protection – depends on the purpose for which it is used): Carter and Johns, Δ cocaine baggers, were bagging cocaine in the apartment of a person whom they did not know before and they were in the apartment purely for business purposes. An officer observed the defendants bagging

cocaine through a gap in the closed blind, after being told to look there by an anonymous tip. Δs were later arrested upon driving out of the apartment complex, carrying cocaine and weapons. Cocaine bagger Δs claimed that their arrest was unlawful under the 4th Amendment and was the result of the original unlawful search constituting the fruit of a “poisonous tree” when and officer saw them bagging cocaine through a gap in the window of someone else’s apartment, and they did not know that person. - Held : Δs DID NOT HAVE a reasonable expectation of privacy to merit standing

under the 4th Amendment in an apartment when officer saw them bagging cocaine through a gap in the window of someone else’s apartment, because they did not know that person, and were conducting a brief “business” transaction.

o Unlike Jones v. United States, the defendants in the current case were in the apartment only for commercial purposes and they were there only for about 2 ½ hours.

- Rule : Overnight guest in a home may claim the protection of the 4th Amendment, but one who is merely present with the consent of the householder may not.

o Property used for commercial purposes is treated differently for 4th Amendment purposes than residential property.

- Δs had no prior relations with the owner of the apartment before the day of the arrest and their sole purpose for being in the apartment was to conduct business.

- Therefore, the Δs had no reasonable expectation of privacy in the apartment.Concurring (Scalia):- 4th Amendment protects people’s “rights to be secure in THEIR” persons and

properties.Dissent:- Court’s decision undermines the security of the short-term guest and the home

resident herself.- Through the host’s invitation, any guest should gain a reasonable expectation of

privacy in the home.

Factors to Consider in Deciding whether “Home” Status should be Given:- Suspect’s Meaningful connection with the homeowner.- Commercial or residential property.

“Independent Source” and “Inevitable Discovery” Doctrines (not “fruit of the poisonous tree”):- Independent Source : Lawful evidence was actually obtained by independent means.

o Derivative Evidence Rule : Derivative evidence gained from an unlawful search must be suppressed.

o Independent Source Doctrine Scope : Covers anything obtained through a warrant obtained solely through information with an untainted history, including evidence initially discovered during, or as a consequence of, an unlawful search.

Illegally obtained information cannot be used to get a search warrant.o Independent Source Doctrine Rationale : The government should not profit

from its illegal activity, but neither should it be placed in a worse position than it would otherwise have occupied.

If no illegally obtained information is used in the warrant affidavit, the magistrate was still neutral and fair, so the warrant and its fruits should still be valid.

- Inevitable Discovery : Evidence is obtained illegally, but the Court allows the evidence to be admitted since it would have eventually been discovered anyway.

o Arguably highly speculative and flimsy compared to “Independent Source” doctrine.

Officers can act in bad faith…o Standard of Proof of Inevitable Discovery : State must show by a

preponderance of the evidence that they would have “inevitably discovered” the illegally obtained evidence anyway.

o Rationale : Court allows this because there is not really a deterrence aspect to suppressing evidence that would have been found anyway.

o Hypo : Inevitable Discovery can be used to get evidence of a trunk search admitted even though it violated the Δ’s rights.

Silverthorne Lumber Co. v. United States: Silverthornes were arrested at their home and officers rummaged through their house without a warrant. After the Δs asked for the evidence back, the books, papers, and documents taken were photocopied and then given back. Another indictment was filed against the Δs based on that evidence, and the court subpoenaed the originals. Δs declined and were held in contempt.- Government used the illegally obtained information to make a case against the Δs,

even though they gave the illegally taken evidence back.- Rule: The essence of a provision forbidding the acquisition of evidence in a certain

way should extend to that evidence being used at all.o BUT, this does not mean all facts obtained that way become sacred and

inaccessible.- Holmes: “If knowledge is gained from an independent source, it may be used like all

others, despite other knowledge illegally gained by Government’s previous actions.”

Murray v. United States: South Boston warehouse drug distributors, Murray and Carter, were convicted of conspiracy to possess and distribute marijuana but claimed that the drugs seized from their warehouse should be suppressed since the officered entered in violation of the 4th Amendment and viewed marijuana bales in plain view, but then obtained a search warrant for the warehouse based on other facts and then seized the drugs.- Held : Assuming evidence obtained was pursuant to an independently obtained search

warrant, the potion of the evidence that had been observed in plain view at the time of the illegal entry should not be suppressed, since the warrant was gained from an “independent source.”

o If no illegally obtained information is used in the warrant affidavit, the magistrate was still neutral and fair, so the warrant and its fruits should still be valid.

- Derivative Evidence Rule : Derivative evidence gained from an unlawful search must be suppressed.

- Independent Source Doctrine Scope : Covers anything obtained through a warrant obtained solely through information with an untainted history, including evidence initially discovered during, or as a consequence of, an unlawful search.

o Illegally obtained information cannot be used to get a search warrant.- Independent Source Doctrine Rationale : The government should not profit from its

illegal activity, but neither should it be placed in a worse position than it would otherwise have occupied.

- Segura v. United States : Held police officers’ illegal entry upon private premises did not require suppression of evidence subsequently discovered at those premises when executing a search warrant obtained on the basis of information wholly unconnected with the initial entry.

Dissent:- Court’s decision fails to show sufficiently that the search was, in fact, independent of

the illegal search, and thus, emasculates the warrant clause and deterrence function of the exclusionary rule.

- There should be demonstrated historical facts capable of ready verification or impeachment to show there was actually an “independent source.”

Nix v. Williams: Young girl killer, Williams, was convicted of the abduction and murder of a young girl but sought Habeas Corpus on the grounds that the evidence gained against him was in violation of the 4th and 6th Amendments even though the Courts ruled by a preponderance of the evidence that the officers would have “inevitably discovered” the illegally obtained evidence anyway. Officers knowingly violated the Δ’s Miranda rights until the Δ volunteered the location of the body and the search. Then the search, which had neared the location of body, was cancelled. The officers came within 2 ½ miles of the body and likely would have found it anyway. Police did not want to use the confession, just the information found on the dead girl’s body, since they would have found that anyway.- General Rule : The Government should not profit from their illegal activity, but

should not be put in a worse position than they would have been, either.- Inevitable Discovery Doctrine :

o If the government can prove that the evidence would have been obtained inevitably irrespective of illegal police conduct, there is no rational basis to keep that evidence from the jury in order to have fair trial proceedings,

o because the State gained no unfair advantage, nor did the Δ suffer prejudice.- Standard of Proof of Inevitable Discovery is that the State show by a preponderance

of the evidence that they would have “inevitably discovered” the illegally obtained evidence anyway.

o The fact that the body of the girl would have been found in short order outweighs the defendant’s argument of an unlawful interrogation, a minor mistake, by the police.

o Police would have continued systematic searching and eventually hit the place the girl was thrown, so the appellate court is reversed.

- Officers MAY ACT in bad faith.Concurring:

- Good or bad faith by the police is simply irrelevant based on the inevitable discovery doctrine.

Dissent:- Clear and convincing proof that the evidence would have been inevitably discovered

should be required for the government to meet its burden.

The “Attenuation” Doctrine (yes, fruit of illegality, but so attenuated so as to dissipate the taint of the illegality):

Attenuation Doctrine: If the connection between the evidence and the illegal government activity becomes so attenuated as to dissipate the taint of illegality, then evidence which is the “fruit of the poisonous tree” may be admitted as evidence.- Scope (Wong Sun) : If the evidence is sufficiently different/distinguished from the

“taint,” it may be attenuated enough to be admissible.o Brown Factors for Determining Scope of Attenuation Doctrine :

1. Temporal proximity of the illegality and the acquisition of evidence,2. Presence of intervening events and circumstances, based on totality of

factors:a. Examples of Breaking the Chain :

i. Consulting with an attorney (full break), ii. Going to an independent magistrate for making a probable

cause determination (full break), iii. Whether Miranda rights are read,iv. Different locations, v. Different officers,

vi. Formal release and Δ returns anyway.3. Purpose and flagrancy of the particular official misconduct.

a. The more flagrant the violation, the more attenuation is needed to “purge the taint,” and vice versa.

o Independent live witness is more important than physical evidence, so ot should be harder to exclude. (United States v. Ceccolini)

o Statement made outside the home is NOT the product of an unconstitutional entry. (New York v. Harris)

- Exclusionary Rule Rationales : o Promote judicial integrity and deterrence of abusive police action.o Prevent the Government from benefiting from abuseso Deter violation of individual constitutional rights

Wong Sun v. United States: The Asian heroin ring, Petitioner Δs, argued that evidence admitted at trial was inadmissible as fruits of unlawful arrests or searches as per the Fourth Amendment all the information gathered against them stemmed from illegally arresting James Toy, when they were informed that “Blackie Toy” was distributing heroin, who then gave up Johnny Yee who was caught with heroin, who then gave up Wong Sun. They were released, but then Wong Sun then made an oral statement after he came back to the police station. They were used against them in court.

- Held : Verbal evidence derived from an illegal search and seizure may be used in the prosecution when the Δ was first implicated due to an illegal seizure of another person, but the Δ later returned to the police station to give his incriminating statement, since the illegal government activity became so attenuated as to dissipate the taint of illegality.

- Attenuation Doctrine : If the connection between the evidence and the illegal government activity becomes so attenuated as to dissipate the taint of illegality, then evidence which is the “fruit of the poisonous tree” may be admitted as evidence.

o Scope : If the evidence is sufficiently different/distinguished from the “taint,” it may be attenuated enough to be admissible.

- The direct fruits of the poisonous tree can not be used as evidence. o Everything stemming directly from Toy’s initial seizure cannot be used. BUT

this was so attenuated as to dissipate the taint of illegality.

(Miranda is required when you have a “custodial interrogation.”)

Brown v. Illinois: Murder accomplice, Brown, moved to suppress his incriminating statements as the fruit of an illegal search when he was charged with murder but made the statements after being illegally arrested but given his full Miranda warnings before making the statements.- Held : The statements of a suspect whose 4th Amendment rights were violated should

be excluded as the fruits of an illegal search even though the suspect was given his full Miranda warnings before making the statements, since, although a factor in attenuation, they were not sufficient to make the taint of the arrest attenuated.

- Miranda is a case about the 5th Amendment, so it should not be considered a quick and per se remedy to 4th Amendment violations.

o Policy of 4th Amendment: Judicial integrity and deterrence are the goals of stopping 4th Amendment violations.

- Wong Sun requires that a statement not only meet the 5th Amendment voluntariness standard, but that it also be “sufficiently an act of free will to purge the primary taint.”

- Brown Factors for Application of Attenuation Doctrine :1. Temporal proximity of the illegality and the acquisition of evidence,2. Presence of intervening events and circumstances,3. Purpose and flagrancy of the particular official misconduct.

o The more flagrant the violation, the more attenuation is needed to “purge the taint.”

o The less flagrant the violation, the less attenuation is needed to “purge the taint.”

United States v. Ceccolini: Police officer casually opened an envelope in violation of the 4th Amendment and asked an employee whose envelope it was. The employee answered the owners’. Owner was charged with illegal gambling.- Court held the employee’s statement was admissible as sufficiently attenuated to

dissipate the 4th Amendment taint.o Verbal evidence can be the fruit of the poisonous tree, but:

o Rule : The greater willingness of a witness to testify freely, the greater likelihood the evidence would have been discovered by legal means and it should be admitted.

- Independent live witness is more important than physical evidence, so should be harder to exclude.

New York v. Harris: Officers developed probable cause to arrest Δ for murder but arrested him in his home without a warrant, in violation of Payton. He, after being given his Miranda warnings, outside and at the station, made incriminating statements.- Court held that Payton was designed to protect the physical integrity of the home, so

once the Δ was taken from there, Payton did not grant criminal suspects protection.o Court focused on the violation, and the violation was of searching someone’s

house.o A CONFESSION, not evidence taken though a search, flowed from the

violation, and therefore does not match up to achieve deterrence.o Court rejects the “cat out of the bag” argument that “but for” the violation the

information would not be gained. The Court looks at the “proximate cause” type limitation, instead.

- Rule : Statement made outside the home, after being Mirandized, is NOT the product of an unconstitutional entry.

Oregon v. Elstad: A house was burglarized and witness implicated Elstad, Δ. Officers went to Δ's house with a warrant for his arrest. Officer sat down with Δ in the living room, and without telling him that he had a warrant for his arrest, stated that he "felt that” he was involved in the burglary. Δ replied, "Yes, I was there.” Δ was transported to headquarters. An hour later, Officer, in the presence of other officer, advised Δ of his Miranda rights for the first time. Δ agreed to talk and signed a statement. The trial judge excluded the remark Δ made in his living room, but admitted the statement made at the sheriff's office.- Held : A suspect who has once responded to un-Mirandized, yet uncoercive,

questioning is not disabled from waiving his rights and making incriminatory after given the proper Miranda warnings.

o The failure to give Miranda warnings creates a presumption of compulsion. o It is an unwarranted extension of Miranda to hold that a simple failure to

administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine Δ’s ability to exercise free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period.

- Absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a Δ has made an unwarned admission does not warrant a presumption of compulsion after being read his Miranda rights.

Dissents:- There is now the incentive to interrogate first, then give the Miranda rights and get a

second statement. - This decision will breed confusion and uncertainty in the administration of criminal

justice.

Missouri v. Seibert: Trailer burning mother, Δ, was charged with 1st degree murder of another kid who died in her mobile home when she burned it down with the body of her neglected and dead handicapped kid inside, but challenged the admissibility of her confession when she was purposefully interrogated before being Mirandized, and then the officer got her to repeat herself after being read her rights.- Purposeful Miranda Avoidance Rule : A confession is NOT admissible when the Δ

was purposefully and calculatedly interrogated before being Mirandized, and then the officer got her to repeat herself after being read her rights.

- Coordinated and Flagrant Violation : In this case, there was a flagrant and coordinated violation, so the taint was great, and there was not real attenuation between the illegal conduct and the information obtained.

o Miranda defends against interrogation practices likely to disable a suspect from making a free and rational choice about speaking.

- The warned phase of this interrogation began only 20 minutes after the unwarned, and was in the same place. There is no “attenuation” and there was a violation of free will.

United States v. Patane (Miranda only prohibits self-incrimination though oral statements, not derivative physical evidence): Violent boyfriend, Patane, was convicted of a felon in possession of a firearm but moved to suppress the evidence as it was gained only after the Δ’s rights under the Miranda rule was violated.- Self-Incrimination Miranda Rule does not Apply to Derivative Physical Evidence :

Failure to give a suspect the warnings guaranteed under Miranda do not require suppression of the physical fruits of the suspect’s unwarned but voluntary statements, since Miranda protects violations of the 5th Amendment Self-Incrimination clause, not against introduction of physical evidence.

United States v. Leon (Good Faith Exception): Drug dealer, Leon, is challenging his conviction on conspiracy to possess and distribute cocaine when officers seized large quantities of drugs pursuant to a warrant which was later determined to not be supported by probable cause.- Held : So long as the magistrate acted prudently and the officers submitted an

affidavit based in good-faith, the 4th Amendment exclusionary rule does not bar the use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate, even though it was ultimately found to be unsupported by probable cause.

o To suppress evidence when a warrant is defective does nothing to deter future misconduct, because there is nothing the officer should have done differently.

Good Faith Exception: If a police officer in good faith relies on a defective warrant, he is likely not guilty of misconduct, based on:- Test : “Whether a reasonably trained officer would have known that the search was

illegal despite the magistrate’s approval.”- Policy : The exclusionary rule's chief policy is to deter police misconduct, not to

punish judicial errors, and no evidence has been shown that relaxing the rule would decrease a judge's professional commitment to protecting 4th Amendment rights.

Dissent:- The courts use of costs and benefits analysis has a narcotic effect of creating the

illusion of technical precision and ineluctability.

Massachusetts v. Sheppard (Magistrate Error/Officer Good Faith Rule): Sheppard’s girlfriend turned up dead in Roxbury, and his alibi was found to not cover the time where she died, and the car he borrowed at the time turned up hair and blood in the trunk and on the back bumper. Officer O’Malley couldn’t find a real warrant application since it was Sunday, so he doctored up an old Dorchester. He forgot to change the substantive part that was for “controlled substances” and so did the magistrate who determined there was probable cause to search the house.

o Two Pronged 4 th Amendment Test : Were the Δ’s rights violated (Mapp v. Ohio), but should the evidence be excluded (Sheppard Case, other exclusionary rule cases).

- Magistrate Error Should Not lead to Exclusion Rule : Exclusionary rule should not be applied when the officer conducting the search acted in objectively reasonable reliance on a warrant issued by a detached and neutral magistrate that is later shown to be invalid for a reason that is the magistrate’s fault.

o Exclusionary rule should not apply where the exclusion would not deter police.

- Here, the officers acted reasonably, and largely error-free. Δ’s rights were violated, but by the magistrate, and done so accidentally.

The “Impeachment” Limitation:

- Defendant can be impeached with otherwise excluded evidence.o Rationale : Every criminal defendant is privileged to testify in his own

defense, but that does not include the right to commit perjury. o Cases : Harris, Havens

- Witness cannot be impeached with otherwise excluded evidence.o Rationale : Δs sometimes need to call reluctant or hostile witnesses, and even

their own witnesses may make an honest mistake that would open the door to allow evidence which should have been excluded.

o Case : James

Harris v. New York: Harris, drug dealing Δ, was charged with selling heroin to an undercover officer but claims it was just baking powder. Dispute is over the use of a condemning statement made to officers immediately upon his arrest to be used to impeach the Δ’s credibility, when the statement could not be substantively used since the Δ’s Miranda rights were violated.- Admissibility of Substantively Inadmissible Evidence for Impeachment Exception

(holding): Evidence (here, Δ’s statements) obtained in violation of Miranda may be used to impeach a witness at trial when it is offered as impeachment on cross-examination, instead of to establish guilt.

o Every criminal defendant is privileged to testify in his own defense, but that does not include the right to commit perjury.

Δ has a true interest in the outcome of the case, and has a motive and opportunity to lie. He should, thus, not be

o The shield provided by Miranda cannot be used as a license to further perjury.- Walder v. United States : Court permitted physical evidence, inadmissible in the case

in chief, to be used for impeachment purposes against the Δ.Dissent:- Impeachment and use as evidence of guilt are hard for a jury to distinguish.- Goes directly against the deterrence goal, because it allows the police officers to get

some “insurance” against a Δ.o Here, the statements were not about collateral matters, but the actual

crimes themselves.

James v. Illinois: 8 young boys were going home when they were robbed by 3 that had a gun, and one shot someone from the larger group. The larger group’s witnesses told the officers that a boy with long, straight, red hair shot the kid. The next day, they arrested the shooter without probable cause, as he was sitting under a hairdryer. He had just cut and dyed his hair into short, curly, black hair. He told the officers it was so he would look different.- At trial, witnesses swore Δ was the shooter, and Δ did not testify in his own defense.

His friend testified that his hair was black on the day of the shooting, and this let the prosecution bring in the evidence that his hair was red, as impeachment.

- Witness (not Δ ) Impeachment Fails Exclusionary Exception Rule : The criminal prosecution can not bring in evidence excluded under the 4th Amendment in order to impeach a WITNESS that could be contradicted by the inadmissible evidence, because this undermines the deterrence rationale of the exclusionary rule.

o Perjury by Proxy Rejected : Δ could get friend to perjur himself (perjury by proxy) for Δ’s benefit, but the Court denies that this happens with a witness, since it puts the witness at risk of jail.

- Rationale : Δs sometimes need to call reluctant or hostile witnesses, and even their own witnesses may make an honest mistake that would open the door to allow evidence which should have been excluded.

Exclusionary Exception for Impeachment Cases:- Oregon v. Hass : Confession obtained after police gave the Δ Miranda warnings, but

failed to honor his request for counsel was held to be inadmissible for prosecution’s case-in-chief, but could be used to impeach the Δ’s testimony.

- Mincey v. Arizona : Court held a statement coerced in violation of the Due Process clause could NOT be used for impeachment, since it is an involuntary statement.

- Michigan v. Harvey : Statements obtained in violation of the Michigan v. Jackson branch of the Massiah doctrine could be used for impeachment.

- Pennsylvania Board of Probation and Parole v. Scott : 4th Amendment Exclusionary Rule does not bar introduction of illegally obtained evidence at parole revocation hearings.

- I.N.S. v. Lopez-Mendoza : 4th Amendment Exclusionary Rule inapplicable in civil deportation proceedings.

- Stone v. Powell : 4th Amendment Exclusionary Rule not applicable in habeas corpus proceeding challenging state conviction if state court has afforded full and fair litigation of the 4th Amendment claim.

- U.S. v. Calandra : 4th Amendment Exclusionary Rule inapplicable in grand jury proceedings.

Part III: Confessions

Chapter 7: Due Process of Law and Confessions:

“A confession forced from the mind by the flattery of hope, or the torture of fear, comes in so questionable a shape when it is to be considered as evidence of guilt, that no credit ought to be given to it; and therefore it is rejected.”

- Otis H. Stephens

Due Process Test:- Coercive Police Conduct, Judged on the Totality of the Circumstances Test : Factors

include:o Prolonged interrogationo Denial of counselo Police trickery:

Officers’ knowledge of exploitation of weakness Trustworthiness of the statement

- Confession Suppression Policies :o Involuntary confessions are inherently untrustworthy.o Police must obey the law while enforcing the law, as life and liberty can

be threatened as much by police using illegal methods as by the criminals.

Ashcraft v. Tennessee: Husband and Negro Friend, Murder Δs Ashcroft and Ware, were convicted of murder of the wife but claimed that the confessions used to convict them were extorted from them in violation of the Due Process clause of the 14th Amendment when the husband was interrogated for 36 straight hours with no break, and claimed that he was abused and kept without food, water, or lavatory, claiming this made his confession coerced.- Held : A confession is coerced and therefore not “voluntarily given” when a Δ is

interrogated for 36 straight hours with no break, and claimed that he was abused and kept without food, water, or lavatory.

- Constitutional Due Process Rule : Confession must be “voluntarily given,” as the Constitution stands as a bar against the conviction of any individual based on a coerced confession.

Dissent:

- A confession obtained by questioning, as opposed to physical coercion, should be acceptable.

Unnecessary Delay Before Arraignment Procedure and Confession Admissibility Rules:- Federal government and many jurisdictions require that people be arrested be

arraigned before a magistrate “without unnecessary delay.”- Since 1964, Supreme Court ruled that these two procedures are constitutional, and all

states follow either the:o Massachusetts Procedure : Judge decides whether to admit a confession,

but then instructs the jury as to the definition of a voluntary confession, and tells them to only admit the evidence if it is a voluntary confession.

o Orthodox Procedure : Judge resolves the evidentiary conflicts and makes her own determination as to whether the confession is voluntary.

Colorado v. Connelly: Murdering Schizophrenic, Connelly Δ, successfully motioned to have the initial statements and the custodial confession suppressed because they were involuntary when Δ made them while suffering from chronic schizophrenia and thought that he was obeying the voice of God by confessing.- Held : Under these facts, there was absolutely no misconduct on the part of the

officers involved, and a confession in the absence of police coercion may be admissible.

Confession by Mentally Ill Δ :- A confession in the absence of police coercion may be admissible when the Δ is

deemed medically insane at the time the statements are made.o Without any state action, a confession need not be the product of a rational

intellect and a free will. - Suppressing Δ's statements would serve no purpose in enforcing constitutional

guarantees, when the officers did not exploit the Δ.- Officers’ Knowledge of Mental Incapacity : If the officers had knowledge, or should

have known, of the mental incapacity, and exploited it, a confession gained under these circumstances would be less likely admissible.

Spano v. New York: Spano, Δ, was an Italian American immigrant. While the Δ was at a bar, an ex-boxer took his money and when the defendant followed the ex-boxer, he was severely beaten by the boxer. Spano went to his house and got a gun and went to a candy store where the ex-boxer was and the defendant shot and killed the ex-boxer. The store employee saw this shooting. Δ called his friend, Bruno, who was about to become a police officer, and the Δ told him that he is going to turn himself in. Officers interrogated the Δ for about 8-10 hours and they even used defendant's officer friend to get a conviction out of him. He refused, until the 4th time that his friend, ordered by his superiors, begged Δ under the claim that he was being persecuted at work for not finding out. Finally the defendant gave in and confessed.- Held : Confession of the Δ was involuntary when it was coerced from him though

repeated questioning after he asked for his attorney, but the attorney was not

produced, and the police forced his childhood friend to lie to Δ that he was being persecuted for not getting the Δ’s confession.

- Totality of the Circumstances Rule : Because the Δ "was overborne by official pressure, fatigue and sympathy falsely aroused," his confession not voluntary based on the totality of the circumstances.

- Confession Suppression Policies :o Involuntary confessions are inherently untrustworthy.o Police must obey the law while enforcing the law, as life and liberty can

be threatened as much by police using illegal methods as by the criminals.Concurring:- Absence of counsel when the confession was elicited was alone enough to render it

inadmissible under the 14th Amendment.

Police Trickery:- Whether police trickery renders a confession inadmissible under the due process test

is based, in some jurisdictions, on whether the trickery would have been likely to induce a false confession, or trickery that would have the effect of inducing a true confession.

Police Promises:- Until 1991, any promises made a confession invalid, but then the Court decided that it

should just be a factor in the balancing test.

Chapter 8: The Privilege Against Self-Incrimination and Confessions:

- Miranda held that the police may not interrogate a suspect in custody unless the suspect first waives his or her Constitutional protection against such interrogation.

- The Empirical Debate : Many studies have sought to examine Miranda’s impact on confessions and convictions, but have generally shown little difference.

- Miranda Waivers : Great majority of suspects waive their Miranda rights, due to a misplaced confidence they can talk their way out of trouble.

Miranda Rule: Incriminating statements made in a custodial investigation of the suspect are only admissible if the requisite procedural safeguards have been taken to secure the 5th Amendment privilege against self-incrimination.

o Giving the “Miranda Rights” are a prerequisite in overcoming the inherent pressures of an interrogation atmosphere.

- Custodial Investigation : Questioning initiated by law enforcement after a person has been taken into custody:

o There must be BOTH CUSTODY AND INTERROGATION : Miranda : Been taken into custody, or been deprived of his freedom of

action in any significant way.

Berkemer : Custody occurs when suspect would objectively believe that his “freedom was curtailed to a degree associated with a formal (full-blown) arrest.”

Custody Test (Alvarado) : Whether, given the circumstances surrounding the interrogation, a reasonable person would have felt that he was not at liberty to terminate the interrogation and leave.

Interrogation Test (Innis) : Miranda interrogation occurs when a person in custody is subjected to either:1. Express questioning or 2. Functional equivalent of express questioning: When actions taken

by police are reasonably likely to elicit an incriminating response from the suspect.

- Procedural Safeguards : When a person is taken into custody or otherwise deprived of his freedom, the following warnings must be given:

1. He has the right to remain silent;a. Must be given in clear and unequivocal termsb. Shows suspect that the interrogators are willing to recognize his

privilege should he decide to use it, at this time, and in this circumstance.

2. Anything he says can be used against him in a court of law;a. Needed to show the suspect of the consequences of waiving his right

to remain silent3. He has the right to have an attorney present;

a. Attorney reduces the likelihood of coercive police actionb. Statements made in presence of counsel are more likely to be

trustworthy4. If he cannot afford an attorney one will be appointed for him.

a. Informs people of all economic backgrounds that they qualify- Waiver : Δ may waive these rights, so long as it is shown voluntarily, knowingly, and

intelligently.o A valid waiver is not presumed simply from silence.o If Δ indicates he wishes to consult an attorney, all questioning must cease.o If Δ is alone and indicates he does not want to speak, officers may not

question him.o Having answered some questions does not deprive Δ from refraining to

answer other questions until speaking with an attorney.o The admissibility of volunteered confessions or statements is not affected by

this decision.- Emergency Situation (Public Safety) Exception to Miranda Requirement :

o Quirrles : Empty holster leads to question, “Where’s the gun?”o Public Safety Exception Balancing Test : “Whether the threat to public safety

outweighs the need for the prophylactic rule protecting the 5th Amendment privilege against self-incrimination.”

- Investigation of non-Δ witnesses does not fall under this Miranda restraint.

Miranda and the Exclusionary Rule

Technical Violation (Forgot Miranda, but statement is Not Coerced): 2nd statement is not barred.

Coerced Confession: Does 2nd Mirandized confession purge the taint of the initial illegality? Look to whether the “taint” is purged:

The “Attenuation” Doctrine (yes, fruit of illegality, but so attenuated so as to dissipate the taint of the illegality):

Attenuation Doctrine: If the connection between the evidence and the illegal government activity becomes so attenuated as to dissipate the taint of illegality, then evidence which is the “fruit of the poisonous tree” may be admitted as evidence.- Scope (Wong Sun) : If the evidence is sufficiently different/distinguished from the

“taint,” it may be attenuated enough to be admissible.o Brown Factors for Determining Scope of Attenuation Doctrine :1. Temporal proximity of the illegality and the acquisition of evidence,2. Presence of intervening events and circumstances, based on totality of factors:

b. Examples of Breaking the Chain :i. Consulting with an attorney (full break),

ii. Going to an independent magistrate for making a probable cause determination (full break),

iii. Whether Miranda rights are read,iv. Different locations, v. Different officers,

vi. Formal release and Δ returns anyway.3. Purpose and flagrancy of the particular official misconduct.

c. The more flagrant the violation, the more attenuation is needed to “purge the taint,” and vice versa.

o Independent live witness is more important than physical evidence, so ot should be harder to exclude. (United States v. Ceccolini)

o Statement made outside the home is NOT the product of an unconstitutional entry. (New York v. Harris)

- Exclusionary Rule Rationales : Promote judicial integrity and deterrence of abusive police action.

Miranda v. Arizona: Miranda, Rapist and Kidnapping Δ, was arrested and taken to the police station where officers questioned him for two hours. Δ signed a confession that stated it was made voluntarily and that Δ had full knowledge of his legal rights. Δ's confession was used against him at trial and over Δ's objection that he was not aware of his rights.

- Held : Evidence obtained from a suspect subjected to custodial police interrogation are NOT admissible when he has not been notified of his privilege under the 5th Amendment against self-incrimination.

Reasoning:- 5th Amendment privilege against self-incrimination is jeopardized when a person is

taken into custody or otherwise deprived of his freedom.- Big Miranda Reasoning : “Warnings are prophylactic rules to protect the fundamental

right against compelled self-incrimination because of the oppressive nature of station house questioning.”

o Police are taught how to trick a Δ into talking, and basically compel them to incriminate themselves.

o A person should have the right to silence unless he decides to speak on his own free will.

- If the interrogation continues without the presence of an attorney, the State has a heavy burden to demonstrate that the defendant knowingly and intelligently waived his privilege.

o A valid waiver is not presumed simply from silence. - This case does not hamper police officers in investigating crime because general on-

the-scene questioning is not affected.o Investigation of other witnesses does not fall under this restraint.

Dissent: (Harlan):- The new rules are not designed to guard against police brutality or other unmistakably

banned forms of coercion. - The thrust of the new rules is to negate all pressures, to reinforce the nervous or

ignorant suspect, and ultimately to discourage any confession at all.

New York v. Quarles: When tried for criminal possession of a weapon, the Quarles, Δ, a Rapist Who Ran into Grocery Store, moved to suppress the statement, "the gun is over there," the gun itself, and later statements about the Δ's ownership of the gun and the purchase in Miami, because the original statement was made and the gun was retrieved before the accused was read his Miranda rights, the latter statements being suppressed as being tainted. Reversed for Government, holding that this was a case where public safety exception applied:- Public Safety Exception :

o There is a public safety exception to the rule requiring Miranda rights that can justify asking limited questions before reading those rights, and

o the availability of that exception does not depend upon the subjective motivation of the individual officers involved.

- Public Safety Exception Balancing Test : “Whether the threat to public safety outweighs the need for the prophylactic rule protecting the 5th Amendment privilege against self-incrimination.”

Reasoning:- The “prophylactic Miranda warnings…are not themselves rights protected by the

Constitution but are instead measures to ensure that the right against compulsory self-incrimination are protected.”

- Miranda does not require officers to refrain from asking questions reasonably prompted by a concern for public safety.

o In this case, Δ was in custody, but the police had reason to believe that Δ had just removed the gun from his empty holster and discarded it in the supermarket.

- Miranda might deter suspects from answering questions if officers were required to read them prior to asking questions about the location of a weapon.

Dissent: O’Connor- The public safety exception blurs the edges of the clear line established by Miranda. - When the police ask custodial questions without administering the required warnings,

Miranda requires that the answers be presumed compelled and they should be excluded form the evidence.

Dissent: Marshall- The police could have cordoned off the store and searched the area. - There was no need to violate D's Miranda rights in this case.- These statements would still be able to be used to protect the public, but would just be

inadmissible at trial.

Custody:

Berkemer v. McCarty: Trooper stopped intoxicated driver’s vehicle and asked if he had been using intoxicants. Δ replied yes, to alcohol and marijuana. He then was asked to perform a sobriety test, and failed. Δ was arrested, asked again about the use of intoxicants, and again answered in the affirmative. Δ was never advised of respondent's constitutional rights, and sought to suppress all his statements.- Held : While Miranda does apply to both misdemeanors and felonies, as an officer

often will not know which has been committed, it only applies after a custodial interrogation, where the Δ would believe that his “freedom was curtailed to a degree associated with a formal arrest.”

- When is a Suspect in Custody ? Custody occurs when suspect would objectively believe that his “freedom was curtailed to a degree associated with a formal (full-blown) arrest.”

o Traffic stops are presumptively temporary and brief, in public (not like the , so, because the initial stop of respondent's car, by itself, did not render respondent in custody, respondent was not entitled to a recitation of constitutional rights.

- However, after respondent was arrested, any statements made were inadmissible against respondent without a reading of respondent's constitutional rights.

Stansbury v. California: Police investigating murder of little girl brought in Stansbury as a material witness against their suspect, but when questioning him without giving Miranda warnings, he incriminated himself. Statements were excluded.- Rule : An officer’s subjective and undisclosed view concerning whether the person

being interrogated is a suspect is irrelevant to the assessment of whether the person is in custody.

Oregon v. Mathiason: Officer left his card on Δ’s door, asking him to come by and discuss something. Officer met with Δ, told him he was not under arrest and was free to leave, lied that fingerprints were found at the scene, and Δ confessed.- Miranda not needed, because Δ was not in custody.- BUT Rule : If Δ brought to station by officers against his consent, he will be in

custody within the meaning of Berkemer.

Yarborough v. Alvarado: Alvarado, 17 year old truckjacking accomplice Δ, seeks to suppress incriminating statements because he was not given Miranda rights, was 17, brought to the station by his parents, separated from his parents, put in a room alone with the officer, and the officer persisted (he said “Tell the truth, I know you’re lying. You’d better tell me the truth. I’m not really focused on you, but someone else.”) until he admitted to being present for the killing. - Soto and Alvarado, 17 year old Δ, decided to carjack a truck, and Soto shot the owner

when he refused. Alvarado helped Soto hide the gun. A month later, the police contacted Δ’s parents that they wanted to talk to him. Parents brought him to the station, they were separated, and Δ was interviewed for 2 hours. He said he knew nothing of the shooting, the officer persisted, and convinced him to tell the story. He was never Mirandized and was subsequently convicted of 1st degree murder.

- Held : Δ is not in custody when was not given Miranda rights, was 17, brought to the station by his parents, separated from his parents, put in a room alone with the officer, and the officer persisted until he admitted to being present for the killing.

- Custody Test : Whether, given the circumstances surrounding the interrogation, a reasonable person would have felt that he was not at liberty to terminate the interrogation and leave.

o Fair minded jurists could disagree about whether Δ was in custody since he came under his own power and was asked if he wanted a break, while it was a long 2 hour interview and he was alone.

o Thus, the state court’s decision was reasonable, and should not be overruled.- Characteristics of the Accused Considered can include: Suspect’s age, education,

intelligence, and prior experience with law enforcement.Concurring:

17 ½ year old looks just like an 18 year old, so weight should not be given to that point anyway.Dissent:- Δ was treated like a suspect, not a witness, and did not have the same maturity of an

adult.- He could have believed he was not free, even without being thrown in a cell.

Interrogation:

Rhode Island v. Innis: Transported suspect, Innis, was convicted of kidnapping, robbery, and murder of a taxicab driver but motioned to suppress his statements on the grounds

that his Miranda rights were violated when he was read his rights and requested a lawyer, but while in transit told the police that he knew where the gun was, after hearing the officers say to each other that a handicapped kid would probably find it.- Held : A conversation between two police officers which elicits an unsolicited

criminal response from a defendant does not constitute an interrogation so long as the police had no such intent or knowledge that their conversation would prompt such a response.

- Miranda Interrogation is Triggered When Rule : Miranda is triggered when a person in custody is subjected to either:

o Express questioning or o Functional equivalent of express questioning – Actions taken by police that

are reasonably likely to elicit an incriminating response from the suspect. - In this case, the officers had no way of knowing that talking about handicapped

children would elicit a response from Δ, as the conversation consisted only of a few offhand remarks, not a long-winded exchange with the specific purpose of getting an admission from Δ.

Dissents:- The officers in this case should have known that their statements would elicit a

response from Δ.- The standard should be "any police conduct or statements that would appear to a

reasonable person in the suspect's position to call for a response is considered an interrogation."

Hypo: Is giving an underage person a paper saying they would be executed coercive?

Illinois v. Perkins: Charlton informed police that while incarcerated with Perkins, Δ, in another prison, Δ had implicated himself in the Stephenson murder. This murder was unrelated to the one for which Δ was serving time. The police placed Charlton and Parisi, an undercover agent, in the same cellblock with Δ with instructions to engage Δ in casual conversation and to report any incriminating statements concerning the murder. Charlton introduced Parisi to Δ. Parisi subsequently suggested an escape attempt to gain the Δ’s trust. While planning the escape, Parisi told Charlton that he would be responsible for killing anyone that might prevent the prison break. Parisi asked § if he had ever "done” anybody and Δ admitted that he had, and described the Stephenson murder in detail and his involvement.- Undercover Officer Rule : Miranda warnings are NOT required when the suspect is

unaware that he is speaking to an undercover law enforcement officer and gives a voluntary statement about a criminal offense, since this is not coercive police action.

- Miranda Policies : The essential ingredients of needing Miranda warnings are:o "police-dominated atmosphere” and o compulsion

- These problems are not present when an incarcerated person speaks freely with someone he believes to be a fellow inmate.

- Coercion Rule: Coercion is determined subjectively through the perspective of the suspect.

o The necessary interplay between police interrogation and police custody is absent where a suspect is unaware he is conversing with an undercover agent. Coercion is determined from the perspective of the suspect.

o Therefore, where a suspect considers himself among cellmates, coercion is nonexistent for the purposes of Miranda.

- The tactics in this case did not violate the 5th Amendment's Self-Incrimination Clause.

- The fact that Δ was incarcerated when he made his confession to the undercover agent did not warrant a conclusion that the statement was involuntary.

Dissent:- This was a case of custodial interrogation which required a Miranda warning. - Miranda deals with any police tactics that may operate to compel a suspect in custody

to make incriminating statements without knowledge of his constitutional rights. - Thus, as in this case, when a law enforcement officer compels a suspect to confess

through deception, he must inform the suspect of his rights. - The psychological pressures of incarceration make such an environment inherently

coercive. - These pressures are unabated by the fact that the suspect was ignorant to the agent's

true identity.- The majority's adoption of the "undercover agent” exception opened a large loophole

in the Miranda rule.

California v. Prysock: Δ was a minor and declined to talk. He later changed his mind after meeting with his parents. Officer told him he would be given a lawyer if he wanted one, and it would be free. He declined and made incriminating statements. His Miranda rights were not violated.

Duckworth v. Eagen: Stationhouse officer told Δ he had the right to speak with an attorney before and during questioning, but was told that he would be given a lawyer if he requested one, but that no one was available to give him at that exact moment.- Miranda does not require that attorneys be producible on call.

Arizona v. Fulminate: Δ, inmate in a federal pen who was being abused pending trial for killing an 11 year old, was offered protection by a fake mafia boss who was really a police officer if he admitted to killing the girl. - He admitted to the killing, but it was held that his confession had been coerced since

it was required for his physical protection.- Court stated this violated due process.

Due process rule: If the government seeks to introduce statements tat relate to a crime for which the suspect has not yet been charged, the due process voluntariness test provides the SOLE constitutional constraint on admissibility.

Waiver: Suspect must intelligently, voluntarily, and knowingly waive his rights.- Waiver Test (Spring) : Judged on the “totality of the circumstances.” (Butler)

o First : Relinquishment of a right must have been voluntary in the sense that it was the product of a free and deliberate choice, rather than the product of intimidation, coercion, or deception.

o Second : Waiver must have been made with full awareness both of the nature of the right being abandoned, and the consequences to abandoning it.

- Totality of the Circumstances Factors : o Durationo Conditionso Coercive behavior by the police officero Background of suspecto Suspect must be informed of his:

Right to right to silence, right to attorney, he will be afforded one if he can not pay, AND the consequences of his waiving his rights (just that the

information can be used against him, not the specific results of those charges).

North Carolina v. Butler: Butler, gas station attendant shooting Δ, moved to suppress evidence off incriminating statements he made when he did not explicitly waive his right to counsel but was read his rights, given a written copy of them, and decided to talk anyway after refusing to sign them, under the theory that a specific oral waiver was required.- Held : A specific oral waiver is NOT required in order for a suspect to waive his

Miranda rights, but o While silence alone cannot constitute a waiver, the Miranda court did not hold

that such an express statement was necessary to finding waiver.- Waiver Test : Based on the totality of the circumstances, waiver is based on whether

the Δ in fact knowingly, intelligently, and voluntarily waived the rights delineated in Miranda.

o Silence is not enough, but silence coupled with an understanding of the rights may support a conclusion of waiver.

Colorado v. Spring: Hunting trip shooter, Spring, moved to suppress admissions to the killing made to police on the grounds that his Miranda rights were violated since he was not told that he was being questioned regarding another crime (murder) from the one he was being charged with at that time (illegal gun sales) under the theory that, as a result, any waiver was not made knowingly or intelligently.- Held : The suspect’s awareness of all the crimes about which he may be questioned is

not relevant when determining the validity of his decision to waive the 5th Amendment privilege.

- Waiver of 5th Amendment Privilege Against Self-Incrimination: Valid only if made voluntarily, knowingly, and intelligently.

- Rule : A confession cannot be fruit of the poisonous tree when the tree is not poisonous.

- Waiver Test : Judged on the “totality of the circumstances,”o First : Relinquishment of a right must have been voluntary in the sense that it

was the product of a free and deliberate choice, rather than the product of intimidation, coercion, or deception.

o Second : Waiver must have been made with full awareness both of the nature of the right being abandoned, and the consequences to abandoning it.

- Δ understood the basic 5th Amendment right he was giving up, and knew the basic consequences of talking to the police.

- Failure to Inform of Suspicion of Suspect Rule : Mere silence by law enforcement as to the subject matter of an interrogation is NOT “trickery” to render a Miranda waiver invalid.

Dissent:- Decision to waive the privilege is influenced by the awareness of the scope and

seriousness of the matter under investigation.- Wisdom and validity are overlapping concepts.

Moran v. Burbine (Police do not have to tell Δ an attorney is trying to contact him, just that he has the right to counsel and silence): Δ was in police custody after murder arrest, and attorney called the police to state she would be representing Δ, and to let the uninformed Δ know. Police said no interrogation would happen until tomorrow. Police then interrogated the Δ, post-Miranda rights, but did not tell Δ that attorney wanted to represent Δ.- Court held that, while they were unhappy with the officers lying to the attorney, this

had no impact on the validity of the Δ’s waiver.- Just because Δ makes a stupid decision about incriminating himself, it is not

automatically unconstitutional.

Connecticut v. Barrett: Δ was advised of Miranda rights and indicated he would not sign a written statement without advice of counsel, but would talk about the events. He then incriminated himself. Valid waiver of right to silence.

Colorado v. Connelly: Held that a waiver of Miranda rights was valid despite the fact that at the time the Δ was in a psychotic state and confessed because he thought God wanted him to either confess or commit suicide.- Valid because Miranda meant to protect against police overreaching, not the “free

choice” of a crazy person to confess.

Miranda is a Constitutional Holding (Not a Constitutional Requirement, but a Constitutional Holding – Lawson):

Dickerson v. United States: Congress enacted § 3501, which created a rule for federal courts that statements would be admitted based on whether they were voluntarily made, and this is in direct conflict with Miranda’s exclusionary rule. Dickerson was indicted

for bank robbery and sought to suppress an incriminating statement he made at the F.B.I. office before his Miranda rights were read.- Held : Miranda had a Constitutional holding under the 5th Amendment, which

prevents Congress from creating a statute which would have the final saying on the admissibility of statements inadmissible under Miranda.

- There is language which could lead to the conclusion that Miranda is not a constitutional decision.

o (The “prophylactic Miranda warnings…are not themselves rights protected by the Constitution but are instead measures to ensure that the right against compulsory self-incrimination is protected.”)

- Two Constitutional Reasons for the Voluntariness Requirement: 5th Amendment self-incrimination clause, and 14th Amendment due process clause.

- Rule : Congress cannot legislatively supersede decisions interpreting and applying the Constitution.

o Miranda lays down 5th Amendment guidelines, so that the Amendment is not violated.

o No Constitutional rule is immutable.o The traditional totality test was rejected by the Court as protecting the 5th

Amendment rights, so the Congress should not reinstate it.Dissent: Scalia- Court adopts a new view of Constitutional law, where Congressional statutes can be

disregarded when they contradict what the Court claims is a “Constitutional Rule,” not the Constitution itself.

- In some cases, the Court held it is possible to violate Miranda without violate the Constitution, so how can the Court state that Miranda is Constitutionally protected.

- This is judicial overreaching and arrogance.

Chavez v. Martinez: Martinez brought a civil suit for a 5th Amendment Miranda violation when he had never been prosecuted. - This was rejected because there was not a violation of the 5th Amendment in the

absence of a showing the statements were used against him in court.

Invocation of Protections:

Admissibility of Post-Invoking Right to Remain Silent Test: Admissibility of incriminating statements obtained after a person in custody had initially decided to remain silent depended on whether his “right to cut off questioning” was “scrupulously honored.”

Waiver of Request for Counsel / “Initiation” Rule: - When an accused has invoked his right to have counsel present during a custodial

interrogation, a valid waiver of that right cannot be established by showing only that Δ responded to further police-initiated custodial interrogation, EVEN IF the Δ was again advised of his rights.

- The accused, after invoking the right to counsel, is not subject to further interrogation until counsel is made available,

- UNLESS the accused INITIATES further communication, changes, or conversations with the police

Request for Counsel Pursuant to Miranda Rules:- General Rule: If a suspect requests counsel at any time during an interview, he is not

subject to further questioning until a lawyer has been made available or the suspect reinitiates conversation with the officers.

o Policy : Designed to prevent police from badgering a Δ into waiving his previously asserted Miranda rights.

- Ambiguity Rule : If a suspect makes reference to an attorney that is ambiguous or equivocal in that “under those circumstances, a reasonable officer would have understood only that the suspect might be invoking the right to counsel, it is not required that the officers cease questioning.”

o Suspect must unambiguously request counsel.o Problem : This may disadvantage some suspects who are unclear because of

fear, intimidation, or lack of linguistic skills, cannot clearly articulate that they want a lawyer present.

- Clarification of Ambiguous Statement Not Required : When a suspect makes an ambiguous statement, it is NOT REQUIRED that the officers cease questioning and clarify whether the suspect wants an attorney.

Michigan v. Mosley (Right to Remain Silent): Mosley, Δ arrested in connection with certain robberies, moved to suppress his incriminating statement under the Miranda Rule, claiming it was impermissible for a 2nd officer to question him about a murder after he had refused to answer the 1st officer's questions about the robberies, when 2 hours separated the questions and proper Miranda warnings were given both times.- Admissibility of Post-Invoking Right to Remain Silent Test : Admissibility of

incriminating statements obtained after a person in custody had initially decided to remain silent depended on whether his “right to cut off questioning” was “scrupulously honored.”

- Held : Once a suspect exercises his right to remain silent, he may later be interrogated on another subject of inquiry, as long as reasonable time has passed and a new warning given.

- Here, the incriminating statement in the case at bar was admissible in evidence, since o he had been properly advised of his Miranda rights at both interrogations, o when the defendant exercised his right to remain silent at the first

interrogation, the officer immediately ceased the questioning, and the o second interrogation occurred after a significant time lapse, o was directed solely to the holdup murder, which was not related to the

robberies, and o was conducted at another location in the building o by another officer.

Concurring: (White, J.) - The real issue is the voluntariness of the confession, and the holding should be

expanded to recognize this test.

Dissent:- Miranda states that the appropriate time for a continuation of questioning is when

counsel arrives for the Δ.- This is the same transaction, and not really different.

Edwards v. Arizona (Invocation of Right to Counsel): Edwards, robbery suspect, moved to suppress his confession on the grounds that his Miranda rights were violated when officers returned the next day to question him, read him his rights again, and then Δ made incriminating statements, BUT during their 1st encounter, he had invoked his right to counsel, and counsel had not yet met with him. Supreme Court reversed for Δ.- If a suspect requests counsel, the interrogation must cease until an attorney is present.

o Here, Δ requested counsel, and was interrogated without that right being honored.

- Waiver of Request for Counsel / “Initiation” Rule : o When an accused has invoked his right to have counsel present during a

custodial interrogation, a valid waiver of that right cannot be established by showing only that Δ responded to further police-initiated custodial interrogation, EVEN IF the Δ was again advised of his rights.

o The accused, after invoking the right to counsel, is not subject to further interrogation until counsel is made available,

o UNLESS the accused INITIATES further communication, changes, or conversations with the police

Concurring:- I do not think that the emphasis placed on “initiation” is clear.- Initiation may be relevant, but should not be the deciding factor.

United States v. Davis: Davis, navy sailor who beat another sailor to death with a pool stick after not being paid on a bet game, petitioned for his statements to be suppressed as violating his request for counsel when he was Mirandized, said “Maybe I should talk to a lawyer,” and when asked whether officers should stop questioning him, said “No, I don’t want a lawyer,” then incriminating himself. Supreme Court held that this was insufficient to trigger invocation of the right to counsel.

Request for Counsel Pursuant to Miranda Rules:- General Rule: If a suspect requests counsel at any time during an interview, he is not

subject to further questioning until a lawyer has been made available or the suspect reinitiates conversation with the officers.

o Policy : Designed to prevent police from badgering a Δ into waiving his previously asserted Miranda rights.

- Ambiguity Rule : If a suspect makes reference to an attorney that is ambiguous or equivocal in that “under those circumstances, a reasonable officer would have understood only that the suspect might be invoking the right to counsel, it is not required that the officers cease questioning.”

o Suspect must unambiguously request counsel.

o Problem : This may disadvantage some suspects who are unclear because of fear, intimidation, or lack of linguistic skills, cannot clearly articulate that they want a lawyer present.

- Clarification of Ambiguous Statement Not Required : When a suspect makes an ambiguous statement, it is NOT REQUIRED that the officers cease questioning and clarify whether the suspect wants an attorney.

Smith v. Illinois (Post-Request Responses): Detective began reading Δ his Miranda rights, and when said “You have the right to a lawyer,” the Δ said, “Yeah. I’d like to do that.” Upon further asking about the lawyer by the detective, the Δ said he did not need one, and incriminated himself.- Held : that the initial request for an attorney was “unambiguous,” so the “post-request

responses” to further interrogation were invalid, and not able to cast doubt on the clarity of the initial request.

Oregon v. Bradshaw (Meaning of “Initiation” – Plurality): Δ accused of giving minor liquor and then crashing, killing the minor. Δ asked for counsel and interrogation was terminated. A few minutes later, Δ asked what was going to happen to him, and general conversation took place for a while, where the Δ agreed to a lie detector test the next day, and, after taking it, made incriminating admissions.- “What’s going to happen to me now?” = “Initiation” within the meaning of Edwards.- Although it is ambiguous, it shows willingness for generalized discussion about the

investigation.- Irrelevant Inquiries are Not “Initiation”: Examples are

o Asking for watero Request for a telephone call

Hypotheticals to Look at (Lawson said to look at them):- Interrogation: Problems in § 8-C are good ones to look at, to see whether the

police officer is interrogating you…

Minnick v. Mississippi: Minnick, fugitive trailer park co-murderer, moved to suppress statements made to the FBI about shooting someone under threat of death from his co-escapee, under the theory that he requested a lawyer, but while the lawyer spoke with him several times, the lawyer was not present when the Δ was interrogated and incriminated himself.- Held : The requirement that counsel be “made available” to a suspect includes more

than an opportunity to meet with the suspect, and includes having counsel present during future interrogations.

- Future Interrogations After Requesting Counsel Rule : When counsel if requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney.

o A single consultation with an attorney does not remove the suspect from persistent attempts by officers to persuade him to waive his rights, or from the

coercive pressures that accompany custody, which may increase as custody is prolonged.

Dissent:- Waiver is an intentional relinquishment of a known right, and that happened in this

case.- It does not matter that the Δ requested an attorney, and, after getting him, spoke

anyway.

Arizona v. Roberts:- Rule : A suspect who asserts his rights to counsel after being given Miranda warnings

as to one offense may not be questioned about a separate offense, unless the suspect initiates further exchanges with the police.

o It does not matter whether the 2nd officer knew of the Δ’s request for counsel.o This is a per se rule.

Betts v. Brady (historical case, overruled by Wainright ) : Betts Δ, was indicted for robbery. He was unable to afford a counsel and he asked the court to assign one for him. The trial court denied him this request, and ruled that it was not its duty to provide the Δ with counsel, unless he was involved in a capital rape or murder case.- Held : A Δ has the right to court appointed counsel upon request pursuant to the 6th

Amendment, and applied to the states through the 14th Amendment, but there must be fundamental unfairness to not granting the Δ counsel in order for it to be a requirement. The only times attorney is required is when the offense is a capital offense.

- The 14th Amendment Due Process Clause does not enforce it upon the states to provide counsels for defendants in every type of criminal case.

- In the great majority of the States, it has been the considered judgment of the people, their representatives and their courts that appointment of counsel is not a fundamental right, essential to a fair trial, BUT

- Here, the Δ was familiar with the criminal justices system, having been convicted of a crime before. He also waived his right to a jury trial and his trial was conducted by a judge, which favors the petitioner as far as the fairness of the trial is concerned. So it can not be determined that the 14th Amendment provided the petitioner the right to a counsel and without which, a fair justice was not served to him.

- A criminal prosecution may be conducted outside the assistance of counsel.

Gideon v. Wainright (Betts is overruled ) : Poolroom breaking and entering Δ, Gideon, was denied court appointed counsel by the trial court on the ground that under the laws of Florida only a defendant charged with a capital offense was entitled to such an appointment, to which Δ disagreed that his federal constitutional rights were violated by the trial court's refusal to appoint counsel.- Held : The 6th Amendment's guarantee of counsel a fundamental right, made

obligatory upon the States by the 14th Amendment, which must be granted to all criminal Δs, unless explicitly waived. (Betts is overruled.)

o Lawyers are necessities, not luxuries.Concurrence: (Clark, J.)

The 14th Amendment protects liberty just as much as it protects life, so it makes no difference whether the case is for a capital crime or a noncapital crime. Concurrence: (Harlan, J.)

The court in Betts should not be so rudely overruled, since it dealt with capital/noncapital crimes. In this case, we don't have to decide whether or not the right to counsel should apply to all crimes.

Scott v. Illinois (Actual Imprisonment Needed for Appointed Attorney in Misdemeanor Cases): Scott, Δ, was charged with shopping merchandise valued at less than $150. This crime was punishable by as much as a $500 fine, or one year in jail, or both. Δ (an indigent) was not provided counsel upon his request, but he was convicted and fined only $50. The Supreme Court of Illinois affirmed, declining to appoint counsel if one is charged with an offense for which imprisonment upon conviction is authorized but not actually imposed.- Appointed Attorney Only Required if Δ is Threatened with Actual Imprisonment /

Mandatory Imprisonment Rule: The 6th and 14th Amendments require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense, not when imprisonment was a possibility, but a only a fine was imposed.

o If there is no possibility of prison term, then the accused has no right to state furnished counsel.

The possibility of being incarcerated is different than merely being subject to a monetary loss.

Incarceration is a severe sanction, warranting the extra constitutional protection.

o If the State does not seek prison time, OR the judge does not think prison time would be warranted, then the Δ does not have the right to counsel.

If judge was wrong, he is handcuffed into giving a fine…Dissent:- Δ's charged offense was punishable by a sentence of up to one year in jail, and carries

the moral stigma associated with common-law crimes traditionally recognized as indicative of moral depravity.

- The "actual imprisonment” standard has problems inherent in its application. - The majority restricts the right to counsel, perhaps the most fundamental 6th

Amendment right, more narrowly than the admittedly less fundamental right to jury trial.

What Constitutes Effective Waiver of Right to Counsel at Trial :- Carnley v. Cochran :

o Rule : Record must show, or there must be an allegation and evidence to show, that an accused was advised of the right to counsel, but competently, intelligently and voluntarily reject the offer.

- What is “Intelligently”?

o Δ does not need to be a lawyer, but needs to be made aware of the advantages or disadvantaged of self-representation, so that the record indicates that he knows what he is doing.

- ABA requires the Δ is advised of his rights and the consequences :o Nature of the chargeso Offenses includedo Allowable punishmentso Possible defenseso Circumstances in waiving his rights

- Even where there has been a waiver of right to counsel, the Judge generally allows for a court appointed stand-by attorney to take care of technical aspects.

- Court can deny this request based on:o “Impeding the process of the case.”

Too emotional, Slowing down the process, Etc.

Whether the Δ has been deprived of “effective assistance” of counsel :

Deprivation of Effective Assistance of Counsel Test (Strickland v. Washington): Δ must show that:

1. His attorney’s performance was deficient, when measured against objective standards reasonableness (if any reasonable attorney would have made this mistake, this prong is not met), and

2. The Δ was prejudiced in the sense that there was a reasonable probablility that, but for counsel’s deficient performance, the result of the proceedings would have been different (only ineffective if the result would have been different).

- Court recognized that Δ is entitled to “effective assistance of counsel,” but must show 2 prong test: Not enough alone that,

o Counsel being asleepo Counsel asking no questions

- Counsel’s Strategic Decisions : Cannot be ineffective assistance of counsel.- Self-Representation and Appeal : Where the Δ is convicted after defending himself,

the Δ can then appeal under the claim of “ineffective assistance of counsel,” claiming that the judge erred in allowing him to represent himself (Judge should have known he was insane).

Chapter 10: Confessions and the Right to Assistance of Counsel:

Messiah: 6th Amendment right to counsel, seeks fairness at post-indictment proceedings:- Attaches once the formal “adversarial process” begins (indictment, arraignment, etc.).- This is post-indictment, when the Δ is facing a tangible possibility of imprisonment.- This is meant to protect the Δ’s right to a fair trial.

o Miranda, on the other hand, is trying to keep a suspect from incriminating himself (a 5th Amendment right) when the statement is not a product of his own free will.

- Massiah v. United States : Supreme Court specifically held that the Δ’s 6th Amendment right to counsel barred the admission into evidence of the statements made by the Δ to the government agent.

- Gideon : Held that the 6th Amendment right to counsel is “fundamental and essential to a fair trial,” and therefore applicable to the states through the 14th Amendment.

- Since Miranda v. Arizona, it is widely believed that the privilege against self-incrimination had supplanted the 6th Amendment right to counsel as a means of controlling police questioning.