Crim Pro Outline 2009

Criminal Procedure, 2009
PART I: SEARCH AND SEIZURE
(A) ENFORCING CONSTRAINTS ON THE STATE
1. THE EXCLUSIONARY RULE AND MAPPS
Exclusionary rule: the fruits of searches conducted in violation of the 4th Amendment can’t be admitted into
evidence.
• Weeks v US (1914): created the exclusionary rule for federal courts; if evidence obtained in violation of
the 4th Amendment’s protections against unreasonable search and seizure could be admitted at trial, then
the 4thbecomes of no value. The exclusionary rule is the only meaningful way to assure that public
officials respect the 4th and it preserves judicial integrity by not sanctioning illegal search/seizure
• Wolf v CO (1949): The protections against unreasonable search and seizure of the 4th apply to the States
via the 14th. However, the exclusionary rule, as a (federal) remedy/enforcement mechanism is not a
constitutional requirement upon States in the same way that it is required in fed cts
• Mapp v OH (1961): overruled Wolf, extended Weeks: exclusionary rule applies to the States
Justifications and Criticisms of the Exclusionary Rule

1. Text: 4th offers no remedy at all, just says don’t perform unreasonable search/seizure; provides stds to
obtaining a warrant
2. Originalist History: Mapp Ct doesn’t look to context of adoption of 4th—either it’s irrelevant or harmful
for end goal
3. Precedents
A. Boyd
i. Links 4th and 5th; both spring from idea that all invasions by the govt or any forcible and
compulsory extortion of a man’s own testimony or of his private papers to be used as evidence
against him or to forfeit his goods goes against the 4th and 5th b/c violation is similarly grounded
in self-incrimination, the 5th’s “exclusionary” principle should also apply to violations of the 4th.
ii. Response: remedy is explicit in 5th, why’s it left out in the 4th? (possibly b/c other remedies like
tort/damages apply); 5th is about courts and cases while 4th is about another location or domain so
conceptual nexus is weak
B. Weeks
i. Said w/o exclusionary rule, 4th is of no value
ii. Response: makes little sense considering there are other alternatives such as money damages
4. Practice Outside of Cts:
A. At the time of Wolf, 1/3 of the states used the exclusionary rule but since then, there’s been a slight
increase so that about 1/2 now use it—upward trend.
B. Response: Conclusion depends on the moment in time the trend is looked at; prob is that don’t know
what evolution of trend will be; trend here may be one way but about evenly spread.
5. Morality, Integrity, Legitimacy:
A. Might undermine legitimacy of decision if factfinder knows that there’s more evidence but is not
allowed to rely on it b/c it was improperly procured.
B. Judges might be worried about letting in evidence that was improperly procured but might be more
willing if alternate remedies to compensate for the illegality of the process exist.
C. Responses:
i. Response: Vast majority of motions to suppress are denied; if that is true, then the exclusionary
rule has effectively compelled police to conform their investigations w/ the law; so while there
might be some loss of reliable evidence, police conduct has improve
ii. Even if a guilty defendant invokes the exclusionary rule, the rule acts to protect innocent persons
from unlawful police conduct.
6. Criticisms on Efficacy:
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A. Unhelpful to the innocent victim who’s never charged but goes through ordeal w/ police or allows
police to harass an innocent person b/c rule provides no meaningful deterrent FX
i. Response: Yes incomplete, but if benefits on net, then that’s not a reason to dismiss the rule
B. Blocks useful evidence; decreases respect for integrity of crim justice system
i. Response: Possible though vast majority of suppression motions are denied
ii. Response: Benefits of restructuring police conduct to comply w/ the law might outweigh
C. Shifts resources away from guilt/innocence
D. Wrong on incentives—value of rule depends on the assumption that police care about conviction rates
as opposed to arrest/charging rates
i. Hard to know
ii. Response: increased use of search warrants or increased cooperation b/t prosecutors and cops
might be evidence that the rule is restructuring police behavior
E. Unlike damages, it’s a one-size-fits all, blanket rule that ensures only one outcome
F. Under pressure, cts might be reluctant to exclude evidence or a find a 4th violation in the first place
whereas might be more willing to find a violation if the remedy weren’t as costly as the exclusion of
evidence.
G. Side FX: judges might create exceptions to the rule; police may lie about how they got the evidence
7. Pragmatic Deterrence:
A. Might be best answer to deter known constitutional violations esp in light of failure of other remedies,
such as state tort actions.
B. Goal might not be to punish the offending officer, but rather, to prevent or disincentivize him from
engaging in illegal activity if the evidence found is of no practical value.
i. Increased use of search warrants might be evidence that the rule is working to alter police
behavior.
ii. Tort remedies don’t always work—payouts for violations come from insurance coffers, potential
plaintiff-victims are unsympathetic and thus unlikely to win and it’s morally suspect to let the
govt pay its way out of a constitutional violation.
2. ALTERNATIVES TO THE EXCLUSIONARY RULE
• Damages and §1983 Liability

• Sources of Law
(1) State law against state/local D’s: ordinary tort law, constitutional law, statute
(2) Fed law against state/local D’s: Sec 1983
(3) Fed law against fed D’s: Bivens Actions, FTCA
• Advantages of damages over exclusion
(1) For example, Mapp probably has a decent Sec 1983 claim; if she wins she could recover
attorneys’ fees and possibly sue for injunctions.
(2) Might avoid some of the criticisms of the exclusionary rule:
(A) Tailored remedy instead of a one-size-fits all rule
(B) Applies even to people who aren’t charged or who never make it to court
(C) State and federal law can form the basis of the remedy
(D) Damages claims can involve other things including claims for recovering attorneys’ fees,
injunctions etc.
(E) Is an offensive weapon that highlights specific officers, perhaps makes them socially or
politically accountable
• Disadvantages of damages
(1) Rank ordering relative injuries might be relatively easy to get a consensus on (see class
experiment) but the more gradations of money damages makes valuation a prob
(2) Monetary awards might be too small to justify litigation
(3) Absolute/qualified immunity or indemnification might not lead to changed behavior;
monetary awards often come out of insurance so the lack of direct liability reduces incentives
to change behavior.
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(i) Though FX on smaller communities/police forces might be greater b/c of larger impx on
fewer resources
(ii) Might be difficult to train out certain prejudices or behaviors
(4) Victims-P’s are not always the most sympathetic plaintiffs, thereby reducing likelihood of
winning
• Sec 1983: provides a federal cause of action for constitutional violations by a state or local
official; state can’t be sued (b/c of sovereignty issues) but municipality can be held liable for
policies or customs that result in constitutional violations.
• Bivens Actions: akin to Sec 1983 liability for fed officers
• Anderson v Creighton (1987): damages are available against a police officer who has violated the
4th only when he has behaved w/ something akin to gross negligence—where the governing law
and its application to the circumstances are clear and the officer has nonetheless disregarded
them.
○ Doctrine before getting to issue of QI: Ct must first determine if there was a 4th violation
by looking at whether D’s conduct could reasonably have thought consistent w/ clearly
established law, based on the info that D possessed (note relp b/t doctrinal rules and stds.)
• Rule: “Clearly established”-more particularized inquiry; contours of the right
must be sufficiently clear that a reasonable official would understand that what
he’s doing violates that right.
• Rule: the precise content of most of the constitution’s civil liberties guarantees
rest upon a reasonable balance of govt need and individual freedom.
• If cop is going to err, err on the side of not violating:
✔ Cops, acting in good faith, might be hesitant to act—they could perhaps
be slowed down to the point where real harm to some invisible victim
materializes—we want police discretion for the gray areas but no
discretion if it’s something that the reasonable officer would’ve known.
○ The more rules a court generates, the easier to find violations and liability. But at some
point, there will be too many rules for even the reasonable officer to know.
○ Cts are just one way to enforce constraints.
○ Tension in holding govt officials liable: damages actions might be the only realistic
avenue for vindicating constitutional guarantees but permitting damages suits also entails
substantial social costs including risk of personal liability and harassing litigation that
impedes the discharge of an officer’s duties.
• So does Mapp start to look better?

○ Exclusionary rule coupled w/ damages makes Mapp look better b/c now even if damages
doesn’t force cops to change, the exclusionary rule is a backstop (provided that cops are
outcome-driven), but only for people who are actually guilty or get to trial. For the truly
innocent who don’t get charged or go to trial, the exclusionary value isn’t useful to them.
○ On the other hand, to say that it does nothing for innocent people is difficult because at
the outset, cops don’t know who is innocent or not.
○ Also, when a person is found guilty, he becomes less of a sympathetic plaintiff even if he
has a legit claim. When nothing is found, the innocent P looks like a sympathetic P.
• Injunctions
• Lyons Rule: to get Art III standing to sue for an injunction, P must show that either he suffers
from a real or immediate threat that he’ll be wronged again or that the wrongs or harms occur as a
result of a policy or custom.
• Los Angeles v Lyons: In a suit for damages and an injunction, P alleged that D-police officers had
used a ‘chokehold’ on him during a traffic violation stop even though he posed no threat. B/c P
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had not shown that he suffered from a real or immediate threat of being subjected to the same
harm, or that chokeholds are applied to every citizen who is stopped for a traffic violation, he gets
no Art III standing to sue for an injunction.
• Prob w/ injunctions: might force the court into being a continuous overseer (see prisons, deseg)
• Potential power thereof: ie no QI; DoJ using 42 SEC 14141 (allows DoJ to seek civil remedies
against police depts./agencies for a pattern or practice of violating constitutional rights or fed
laws).
• Prosecutions for willful rights deprivations
• Admin regulations-employer based sanctions; punishments handled internally; there’s a question of

whether self-regulation or self-discipline would really work.
• Political control-mayors, legislatures, civilian review boards etc.
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(B) TRIGGERING 4 AMENDMENT CONSTRAINTS

TH
THIS IS ALL ABOUT WHETHER THE 4 TH

COMES INTO PLAY AT ALL.
1. “THE PEOPLE” AND VERDUGO-URQUIDEZ
• The 4th represents a balance b/t the need of govt agents to gather evidence and the right of citizens to be
free from govt intrusions
• The 4th: 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 persons or things to be seized.
• US v Verdugo-Urquidez:
○ 4th applies to “the people:” who are part of the national community or who have otherwise
developed a sufficient connection w/ this country to be considered a part of that community; that
includes:
• US citizens
• US citizens stationed abroad
• Aliens who are here lawfully and voluntary
○ 4th does not apply to:
• D: a resident/citizen of Mexico; DEA gets permission from the Mex authorities + searches his
Mex house; D seized in Mexico by Mex cops and brought to a US border patrol station in
CA; although here lawfully and involuntarily, no 4th protections
○ Open q of whether 4th applies to aliens here voluntarily but illegally
○ Key points:
• “National community” and “sufficient connection” test is vague.
• D could’ve argued that his drug trade to the US gave him “sufficient connections” but that
would be an admission of guilt and an awkward connection.
• Unlawful connections to the US thus don’t seem to be enough to get 4thAmendment
protections. (Should raise concerns for out-of-status aliens in the US).
○ Concurrence, Kennedy and Stevens
• Aliens who are lawfully present in US, like D, are among those “people” entitled to 4th
• But b/c search done w/ Mex authorities’ consent, search can’t be called “unreasonable”
• Warrant Clause has no application to searches of noncitizens’ homes in foreign jurisdictions
b/c American judges have no power to authorize such searches
• Hypo: would probably say that a nonresident alien who’s been living here for enough time to
gain “sufficient contact,” but is now out-of-status would probably get 4th protections
○ Dissent
• D is being treated as a member of our community b/c he’s being investigated/prosecuted in
the US, thus the “sufficient contacts” have been established and he should get 4th protections
○ There might be national intelligence exceptions for US forces to search US citizens abroad
2. “SEARCH,” THE KATZ TEST AND “PRIVACY”
THE KATZ TEST

• Threshold q: b/c the 4th only protects against “unreasonable search and seizure,” if there’s no “search” or
“seizure” to begin with, then it’s not subject to restriction and cop need not justify it
• Katz Rule: Harlan’s 2-part test:
(1) Person needs to exhibit an actual, subject expectation of privacy and
(2) Expectation must be one that society is prepared to recognize as reasonable
(A) For motions to suppress, a judge will decide, but he’ll hear arguments from both sides.
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(B) There’s a concern that w/ enough govt officials saying no privacy here and pointing to specific
locations, then expectations will be lowered if judges side w/ the govt.
• Katz v US (1967): FBI bugs public pay phone that D used to place illegal bets. SC held that even though
the search was conducted reasonably, b/c it was done w/o a warrant, it was procedurally defective and
therefore violated D’s 4th Amendment rights against unreasonable search and seizure.
• Majority says the 4th protects people not places, but per Harlan’s concurrence, “what is protected”
will turn, in part on the placewhich turns on people’s interests/expectations for that place.
• The 4th governs not only seizure of tangible items, but extends to things that don’t depend on the
presence or absence of a physical intrusion into a given enclosure.
• Harlan’s concurrence has become the test.
• Although the majority concedes that the search was conducted reasonably, the key is that
whatever restraint or discretion was shown, it was self-imposed and not judge-imposed.
• Drawback to Katz: doesn’t give you an idea of what privacy is—privacy is a contested concept
INTERESTS PROTECTED BY THE 4 AFTER KATZ

TH
• Relevance of “places” survives Katz: location matters as a translation of people’s interests or expectations
○ Open fields rule: even w/ trespass on private open fields, no constitutional violation triggered b/c
people don’t have the right interests there to trigger the 4th (Oliver v US)
○ Curtilage rule: caveat to the OFD; area surrounding the home where reasonable privacy
expectations exist, thus warranting the 4th’s protections
 US v Dunn factors to determine if curtilage was expected to be private:
 Proximity of the area claimed to be curtilage to the home
 Whether the area is included w/in an enclosure surrounding the home
 The nature of the uses to which the area is put
 Steps taken by the resident to protect the area from observations by people passing by
• Privacy as a contested concept:
○ Can it be shared? Quite possibly. Is it limited to truly personal things? Not really.
○ Privacy and secrecy intertwine; is about restricting access or the flow of information
○ Location may matter even though there’s nothing confidential or revealing about the place itself
○ General bases for privacy: informational vs emotional vs autonomy
 Informational: individual has the right to control info about himself or restrict access to or
disclosure of information; right to secrecy
 Emotional: emotional distress caused by physical invasion/disruption or inconvenience
 Autonomy/Decisional: ability to make one’s own decisions or act on those decisions, free
from govt or unwanted interference
○ Types of args that can be made in favor of/against forms of privacy: Normative vs empirical vs
legal analogical
 Normative: what ought to be, to uphold a particular value
 Empirical: observable
 Legal analogical: by analogy to another, *similar* case; validity depends on justification
for analogy
APPLICATIONS OF KATZ
• Florida v Riley: aerial surveillance (w/o warrant) in navigable airspace at 400 feet by helicopter of D’s
backyard and partially uncovered greenhouse is not a “search”
• California v Ciraolo: aerial surveillance (w/o warrant) in navigable airspace at 1000 feet by airplane of
D’s backyard is not a “search”
• US v White: govt agents can offer testimony of conversations transmitted/heard b/t D and a wired
undercover govt agent; not a “search”
• California v Greenwood: cops rummaging through trash left out for pickup is not a search b/c no legit
expectation of privacy since snoops, others, scavengers etc could’ve accessed the trash
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• US v Karo: beeper used only to track location of beeper-laden can over public roads is not a “search”
• Kyllo v US: thermal-imaging regarding the interior of a home could not otherwise have been obtained w/o
a physical intrusion into the house, so yes, this is a “search”
• Illinois v Caballes: a dog sniff of a car trunk conducted during a concededly lawful traffic stop that
reveals no info other than the location of a substance that no individual has a right to possess does not
violate the 4th
LEGITIMACY OF THE PRIVACY EXPECTATION IN TERMS OF PUBLIC ACCESS THEORY

• Public Access Theory: D has no reasonable expectation of privacy against cops if D cannot
reasonably expect equivalent privacy as against members of the public
○ Space being occupied or method being used by cop is used frequently enough by the
public to nix any expectation of privacy
○ Cop is not doing something that would be considered illegal if member of public did it
○ Other intimate details not observed by cops
○ Naked eye visual observations vs something “inherently more intrusive”
○ Cops not causing other, incidental harms as a result of method/space chosen or impeding
normal use
• Physical or tactile manipulation is inherently more intrusive and may be a “search”
• California v Ciraolo
○ Facts: Cops used an airplane at 1000 feet + the naked eye to look into D’s backyard,
where they found marijuana. Cops had no warrant to look but based on these
observations, they were able to secure a warrant and investigate the yard for drugs.
○ Held: In an era where private and commercial flight in the public airways is routine,
property owner can’t have reasonable expectation that his marijuana plants would be
constitutionally protected from being observed w/ naked eye at an altitude of 1000 feet.
○ Key: 1000 feet is legally navigable; airplane use by the public is common
• Florida v Riley
○ Facts: Cops used a helicopter at 400 feet to look w/ naked eye into D’s partially open
greenhouse for drugs. Roof is mostly covered, not visible from street and “do not enter”
signs posted. Based on observations from helicopter ride, cops obtain a warrant that
leads to a search and conviction for marijuana possession.
○ Held: The use of the helicopter did not amount to a “search.”
○ Plurality reasoning:
 D probably had a subjective expectation of privacy—half of Katz met.
 Per Ciraolo, chopper was at an altitude in FAA legally navigable airspace.
 If any member of the public could do what the cop did (fly at 400 feet) then no 4th
prob—and yes they can.
 Chopper did not violate the law in some other way.
 Chopper did not interfere w/ D’s normal use of the greenhouse or other part of
curtilage.
 No other intimate details of the house or curtilage were observed.
 No other harm—no undue noise, dust or wind.
○ O’Connor’s concurrence:
 Reasonable privacy expectations for street view and aerial view can be diff.
 Fact that chopper flew at FAA legally allowable level doesn’t automatically mean
the individual has no reasonable expectation of privacy.
 The proper inquiry under Katz would be an empirical look at what members of
the public are actually doing—are they flying choppers at 400 feet? We know
that there’s considerable flying at 400+ feet so no reasonable expectation there,
but if public use at 400 feet or less is infrequent enough, then privacy expectation
might be legit.
 D should bear the burden of proving that his expectation of privacy was
reasonable, thus a “search” w/in meaning of 4th took place.
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• California v Greenwood
○ Facts: Cops go through D’s trash that had been left out on a public street for pick up by
the local garbage service, per city rule.
○ Held: D cannot have a reasonable expectation of privacy in trash left out to be picked up
as it’s easily accessible by members of the public, thus cops can’t be excluded as well. D
did not waive any right to privacy in the trash b/c he never had any right to privacy in the
trash.
○ Majority:
 Trash is exposed to members of the public such as snoops, scavengers etc thus
it’s equally exposed to the cops.
 Use of opaque bags doesn’t matter.
 Fact that city requires use of the service in lieu of burning trash doesn’t matter.
 Fact that D’s trash is commingled w/ others’ trash doesn’t matter b/c public still
has access to it.
○ Dissent, Brennan
 B/c most members of society would be appalled at the idea of authorities or
others sifting through their trash (ie emotional theory of privacy) and finding out
intimate details of their lives, society would recognize a privacy interest in trash.
 The mere possibility that some member of the public might get at the trash isn’t
enough to prevent a legit expectation of privacy by D.
• Bond v US
○ Facts: Cops physically manipulated D-bus passenger’s canvas bag placed in an overhead
luggage compartment.
○ Held: Yes, this was a “search,” done in violation of the 4th.
○ Reasoning:
 SC rejected govt’s analogy to the public access theory used in Riley/Ciraolo.
 Instead SC said that while a passenger can reasonably expect other members of
the public to handle bags in an overhead compartment, one would not expect the
type of “probing tactile examination” conducted by the cop in this case.
 Aerial surveillance like Ciraolo/Riley involves visual observation but the tactile
or physical manipulation used here is inherently more intrusive.
Legitimacy of the Privacy Expectation in Terms of Investigation that Only Reveals Illegality
• Theory:there can be no legit privacy interest in illegal activity. Those engaged in illegal activity
can argue for 4thAmendment protections only b/c there’s no way to tell at the outset of the
investigation whether or not there’s illegality. But if the investigative method can only tell
whether or not illegal activity exists, and cannot divulge legal + innocent activity, then the
investigation doesn’t compromise any privacy interest that would otherwise be protected by the
4th.
• Illinois v Caballes (dog sniffs)
○ Facts: State trooper pulled D over for routine traffic violation. As trooper is writing
ticket, a second cop, who had heard about the stop over the transmission, goes to the
scene w/ his drug sniffing dog. Dog alerts at the trunk. Cop opens trunk, finds marijuana
and arrests D.
○ Held: A dog sniff conducted during a concededly lawful traffic stop that revealed no
information other than the existence of an illegal substance is not an illegal ‘search.’
○ Reasoning:
 SC says no legit privacy interest in possessing contraband.
 Despite evidence on error rate of drug sniffing dogs, SC is persuaded that the
investigation (unlike Kyllo) is designed only to reveal contraband and not any
other intimate details.
 D didn’t offer evidence of false positives/negatives to justify the argument that
the alert was erroneous or leads to disclosure of lawful yet private info.
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Legitimacy of the Privacy Expectation in Terms of Sensory-Enhancing Technology

• Sense enhancement theory:if govt agents use sensory enhancing devices that do no more than
aid cops in finding info that they could’ve found through their own sensory perception, then it’s
not a search. (Sense substitute.) But if the device results in finding out intimate details or info
that could not have otherwise been found w/o a physical intrusion (that requires a warrant) then
that is a “search.”
• Kyllo Test for a “search:”
(1) Human sense-enhancing tech
(2) To reveal info about a home’s interior
(3) That couldn’t have been acquired otherwise w/o physical intrusion
(4) At least if the technology is not now in general public use
• Dow Chemical Test for a “search:” if D has no privacy expectation in information to begin with,
then use of sense-enhancing devices is not a search, even if the agent could not have originally
obtained the info by using his own senses unaided.
• US v Knotts: no search took place when police monitored a tracking beeper attached to a drum of
chloroform used to manufacture illegal drugs. Sc concluded that a person travelling in a car on
public roads has no reasonable expectation of privacy since his travel conveys to everyone that he
is traveling in a particular direction.
• US v Karo:
○ Facts: DEA agents place tracking beeper on drum of ether w/ether seller’s permission.
Seller then sells to D. Using the tracking beeper, DEA agents track beeper over several
locations, ultimately ending up at D’s rented house in NM. During course of tracking,
agents also videotaped storage facility where can was stored temporarily; agents also
observed that the windows of the NM house were open on a cold day. All these
observations were used to secure a warrant to search the NM house.
○ Held: Monitoring the beeper over the public roads was ok. Monitoring the beeper in a
private residence is not ok. But since lawful and unlawful info was used to secure the
warrant, the warrant still stands since based on enough lawfully acquired info.
○ Reasoning:
 Beeper is being used as a substitute for visual surveillance and mirrors visual
sighting by agents, thus when the beeper is offering info that a member of the
public could’ve gotten through visual observation, then it’s ok.
 But when beeper-laden can enters private residence, then that info can’t be used
b/c a private party couldn’t see w/o aid either, thus cops can’t do lawfully what a
private party can’t do lawfully.
 Depends on what info is revealed by the beeper and whether or not that info
could’ve been procured by a member of the public, unaided or unintrusively.
• Kyllo v US:
○ Facts: DEA agents suspected D of using halide lights to grow marijuana. To determine if
D was using the lamps, agents used a thermal imaging gizmo to scan the house. Scan
revealed that house emitted unusual heat patterns. Based on the data, agents secured a
warrant. They found an indoor marijuana growing operation. D was convicted.
○ Held: Thermal imaging scan of the house violates the 4th b/c the equivalent information
could not have been obtained w/o a physical intrusion into the house.
○ Reasoning:
 Generally, privacy expectations are at their highest for the home.
 When govt uses a device that is not in the general public use to explore details of
the home that would previously have been unknowable w/o physical intrusion,
the surveillance of the house is a “search” and is presumptively unreasonable w/o
a warrant.
 There’s no connection b/t the sophistication of the technology and the intimate
details that it can capture—heat sensing tech can disclose when people take a
bath or when a light is left on, for example.
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• Dow Chemical v US
○ Facts: govt officials flew over Dow’s commercial property and took pics of the areas b/t
Dow’s buildings using a very expensive camera. Pics could be enlarged to show objects
that are1/2 inch in diameter.
○ Held: The use of the camera was not a search. Dow had no legit expectation of privacy
of the area b/t its buildings—at least not w/ respect to aerial surveillance, thus aerial
surveillance not a search.
○ Reasoning:
 If D has no privacy expectation in the info to begin with, then using sense-
enhancing devices is not a search, even if it gives the officer info that he couldn’t
have acquired unaided.
 But if the device could obtain private information that could not be obtained
through sensory perception, then the use of such devices is a “search.”
3. “SEIZURE”
• Two-part inquiry: Was there a seizure? If so, was it unreasonable?

• Types:
A. Involving physical contact
i. Intentional acquisition of physical control-Brower v Inyo County
ii. Physical force is applied to the person w/ the intent of restraining him-CA v Hodari D
B. Other situations
i. Nonphysical show of authority AND person submits to the authority—Hodari D dicta
ii. Reasonable person would not feel free to go or disregard the police officer-Bostick
• Free to leave test: would the innocent reasonable person feel free to walk away or leave?
• Bostick Test: would the (innocent) reasonable person feel free to terminate the encounter w/ LEO or
decline the LEO’s request?
• Florida v Bostick
○ During narcotics sweep, LEO board bus that Bostick is a passenger on. Ask D to see his luggage
and D gives consent. LEO find drugs. Bostick sought to suppress the drugs b/c at the time he
gave his consent, he wasn’t really free to leave b/c the bus was about to depart.
○ Held: The “free to leave” test doesn’t apply to D here b/c he had no desire to leave as the bus was
about to depart. Case is remanded to determine if LEO’s conduct was a seizure under the
modified std of whether the police conduct would have indicated to a reasonable person that the
person was not free to decline the LEO’s offer or otherwise terminate the encounter.
○ Practically speaking, D was not “free to leave” the bus as it’s his mode of transportation and he
would not have left it even if the police were not present.
○ He’s sort of being punished because he happened to choose the bus as his mode of transport.
Since he “chose” this mode, he wasn’t really “coerced” into staying on the bus. The truth is,
there’s a confluence of factors that lead to D being on this bus, so it’s hard to say what’s the real
cause and whether he’s there voluntarily or not, in a meaningful way.
○ D’s rights have to balanced w/ the concern that we don’t want LEO to walk away if person has
given consent either.
• Brower v Inyo County: car crash into a police road block is a “seizure” b/c the police intended to force
the car to stop
• US v Drayton
○ Same bus sweep facts as Bostick; D’s here argued that their “consent” wasn’t really voluntary as
they too were on a bus. 11th Cir agreed and said that consent of passengers during a bus sweep is
involuntary unless LEO advice passengers of their right not to cooperate and to refuse consent.
○ SC: citing Schneckloth and Robinette, no bright line rule required by 4th; LEO need not advise bus
passengers of these rights.
• CA v Hodari D
10
○ D is chased on foot and discards crack. LEO tackles D and also later finds the discarded drugs.
Crack was used as evidence against him. D argued that but for the foot chase, D would not have
discarded the crack. D argued that the LEO pursuit was a seizure since a reasonable person
would have considered it coercive and not feel free to leave.
○ Held: SC rejects. The foot chase was not a seizure b/c while there was a show of authority, D had
not stopped running in response to that authority. Thus the seizure didn’t occur until D was
tackled.
○ Rules:
 A seizure automatically occurs when an officer physically touched a suspect w/ the intent
of restraining him
 A nonphysical show of authority is not a seizure until the suspect also submits to that
authority
11
(C) THE CONTENT OF 4 AMENDMENT CONSTRAINTS

TH
1. PROBABLE CAUSE
• Rule: Probable Cause: belief as to the probability of a crime/evidence of a crime that justifies the State’s
intrusion into a citizen’s privacy and security interests
• The “seriousness” of the crime doesn’t matter as a formal matter but in practice, is probably folded into
the discretionary calculation of LEO/judges
• Rule: Under the 4th, LEO cannot get a warrant to search unless he can find PC via facts or circumstances
to justify the intrusion; merely asserting a belief or suspicion of illegal activity is not enough to establish
PC. ~Nathanson v US
1. Informants
A. Confidential tipsters help out law enforcement; perhaps keeping their identity a secret helps to weigh
the objectivity of the info by not being infected w/ bias as to the source and helps protect the tipster
from backlash.
B. On the other hand, if anonymity is always kept, then the anonymous tipster has less incentive to
remain truthful; might also incentivize LEO to fabricate info to use as the basis for a warrant.
C. The problem is that judges can’t interrogate the source of the info or test the veracity of the
information. If they can’t test the credibility, one solution might be to require more than just
corroboration of innocent data.
2. Ye Old Spinelli Test and Informants
A. To establish PC based on an informant, a court has to consider separately:
i. Informant’s credibility by track record or otherwise, and
ii. Informant’s basis for knowledge of the allegations
B. According to White’s concurrence, police corroboration (independent findings that support the
informant’s info) can make up for lack of credibility or basis of knowledge.
C. The problem is, how much corroboration is tricky; corroboration may or may not be enough to get
over the lack of either or both prongs.
D. This rigid two-prong test was rejected in Gates, in favor of a more holistic inquiry.
3. Gates Test for PC:
A. Objectively reasonable LEO
B. Consider the totality of the circumstances known to the LEO, including corroboration (independent
verification by LEO) of informant’s assertions + basis for belief and veracity
C. Is there a “fair probability” or “reasonable ground for belief” that a crime/evidence of a crime can be
found? This is not a “more likely than not” std (but is hazy—plausible innocent explanation not
dispositive)
D. Draper is the paradigm case where corroboration mattered.
4. Basis of knowledge and Veracity
A. LEO’s oath can be basis of knowledge or veracity
B. Also look at statements against interest/declarant’s motives
5. Why did Gates reject Spinelli’s rigidity?
A. Lower cts developed elaborate legal rules to enforce two-pronged test that were inappropriate given
that affidavits are prepared by nonlawyers in the stress of an investigation
B. Application of rigid test lead to inappropriately denying warrants
C. Rigid test made it difficult, if not impossible, to utilize anonymous tips, which are very useful
D. In light of higher scrutiny of affidavits under two-part test, LEO might resort to warrantless searches
in lieu of going through the harder process of getting a warrant
6. Why not have a higher std of proof, a la trials?
A. PC std isn’t used to convict someone, so at time of search or seizure, a lower std is ok
B. There is an imposition on the subject but it’s worth it as the state has a higher burden of proof to
convict at trial—graduated system: final determinations have stricter requirements
12
7. Particularity Requirement for PC

A. Pringle: If there are multiple people at the scene, ie in a car, and there’s PC to reasonably believe that
any or all are part of the common enterprise of illegal activity, then LEO can arrest all
B. Ybarra: Aurora Tap Bar case; where std is PC, a search or seizure of a person must be supported by
PC particularized to that person. A person’s mere propinquity to others independently suspected of
criminal activity does not, w/o more, give rise to PC to search that person; no common enterprise
C. Di Re Rule: any inference that everyone on the scene of the crime is a party to it must disappear if
there’s a govt informer involved and he singles out the guilty person
8. Ornelas and Historical Facts: to determine whether a cop had PC to arrest an individual, look to the
events leading up to the arrest and then decide whether these historical facts, viewed from the standpoint
of an objectively reasonable LEO could amount to PC
9. Ornelas and Standard of Review
A. Appellate cts are generally supposed to defer to the PC determinations of magistrates/trial cts when a
warrant was issued; appellate ct looks for “substantial basis” for PC determination-Gates
B. But if no warrant was sought, then:
i. De novo review of the ultimate PC determination-Ornelas
ii. But findings of historical fact are still reviewed only for “clear error” and “due weight” is given
to trial ct/magistrate and LEO’s
• Nathanson v US: merely asserting a belief or suspicion of illegal activity is not enough for PC
• Draper v US: paid informant’s 1) very specific description of suspect and his drug possession,
along with 2) evidence to corroborate description and 3) history of offering trustworthy tips is
sufficient to establish PC for officer to arrest D
• Spinelli v US: two-pronged test rejected in favor of Gates for PC
A. Facts: FBI obtains warrant to search D’s house based on following affidavit:
i. FBI has tracked D’s movements.
ii. FBI checked w/ phone company and found that his apt contained two telephones listed
under a third party name; phone numbers had id numbers.
iii. FBI believed D to be a bookie and gambler.
iv. FBI has been informed by a confidential and reliable informant that D is operating as a
bookie and gambler using the phones w/ the above named id numbers.
B. Held: Harlan, rejecting the totality of the circumstances test in favor of the two pronged
credibility and veracity test, finds that the tip doesn’t contain sufficient info for PC.
C. Reasoning:
i. The first two arguments are of innocent activity and can’t sustain a warrant.
ii. The second is a bald assertion of suspicion and not enough under Nathanson.
iii. The fourth fails to establish 1) informant’s credibility and 2) how informant knows what
he knows. Thus ct has no way to measure the reasonableness or reliability of the tip.
• IL v Gates:
A. Facts: LEO receive an anonymous letter that describes in great detail an upcoming drug
purchase by a couple; LEO tail the couple and are able to corroborate some but not all of the
info in the letter. Based on affidavit of observations + anonymous letter, LEO apply for a
search warrant. They find drugs. Couple is indicted and move to suppress evidence seized
during the search.
B. Held: Under totality of the circumstances, PC was met even if the two prongs of Spinelli
weren’t strictly met.
C. Reasoning:
i. PC is a practical, commonsense determination made by looking at the totality of the
circumstances.
ii. Here, the partial corroboration as well as detailed nature of the letter are “reasonable
grounds for belief” that a crime/evidence of crime was there.
iii. The two prongs of Spinelli are not rigid requirements; proof of either can make up for
lack of the other.
13
iv. The Drapertest for corroboration is back in and matters. (Spinelli said corroboration
wasn’t useful.)
• Ornelas v US
A. Facts: LEO spot a station wagon w/ CA plates (which are often used to transport drugs) in
hotel parking lot. They check drug database and learn that the two men in the car are drug
dealers. They ask the men if they have drugs; men say no. They then ask to search car and
men give consent. LEO notices a loose panel, takes it off and discovers cocaine.
B. Held: This was a warrantless search, thus an appellate ct reviewing lower ct’s findings on PC
has to review it de novo.
• Maryland v Pringle
A. Facts: LEO stops car w/ 3 passengers for speeding and notices a wad of bills. Asks to search
and driver/owner consents. LEO finds drugs; asks all 3 about the owner of the drugs but no
one admits to anything so LEO arrests them all. At the station, D-Pringle confesses but
moves to suppress on the basis that PC was not particularized to him to justify search.
B. Held: It’s entirely reasonable from these facts to infer that any or all 3 occupants had
knowledge of and exercised dominion over the cocaine, thus a reasonable officer could
conclude that there was PC to believe that D committed the crime of possession.
C. It’s reasonable to think that D and the other car passengers were engaged in a common
enterprise.
• Ybarra v Illinois
A. Facts: LEO execute search warrant for a bar and bartender for drugs. While they are there,
they also frisk another bar patron and find drugs on him.
B. Held: There was no PC to search the bar patron thus search of his person was illegal and
drugs should be excluded from evidence.
C. Rule: where std is PC, a search or seizure of a person must be supported by PC particularized
to that person. A person’s mere propinquity to others independently suspected of criminal
activity does not, w/o more, give rise to PC to search that person; no common enterprise
• Devenpeck v Alford
A. Facts: LEO pulls over D for suspicious behavior and possibly acting like a police officer.
During question, LEO discovered that D was taping their conversation and arrested D for
violating state privacy laws that made it a crime to tape cops (turns out, it’s not really a
crime.) Trial ct dismissed charges and D filed a Sec 1983 claim arguing that his arrest
violated the 4th.
B. Issue: Is an arrest lawful under the 4th when the crim offense for which there is PC to arrest
(here, arguably impersonating an LEO or obstructing an officer) is not ‘closely related’ to the
offense stated by the LEO at the time of the arrest?
C. Held: Still lawful. A warrantless arrest is reasonable under the 4thif, given the facts known to
the LEO, there is PC to believe that a crime has been or is being committed. There is no
basis for imposing the additional limitation that the offense establishing PC be “closely
related” to and based on the same conduct as the offense identified by the arresting officer at
time of arrest. Reversed.
D. Reasoning:
i. While it’s good practice to inform the arrestee of the reason for their arrest when they are
taken into custody, SC has never held that this is constitutionally required.
ii. LEO’s subjective reason for making the arrest (violation of privacy laws) need not be the
criminal offense as to which the known facts provide PC (for impersonating a LEO).
iii. If there is info known to these officers at the time of a crime, but the officer arrests and
says another crime, that is OK.
2. WARRANTS
The Process to Get a Warrant
14
1. Generally, the 4threquires every search or seizure to be made pursuant to a warrant issued upon finding
PC. The warrant authorizes LEO to make the search/seizure/arrest and spells out the terms and
restrictions of the intrusion.
2. Concerns for having a warrant requirement: process burden and maybe less protection of liberties that we
want protected; might also threaten or decrease activity levels
3. Oath or affirmation:
4. Neutral magistrate:
A. Justification: interposing an unbiased judicial official b/t the citizen and the police is a good thing b/c
police are motivated by the competitive enterprise of rooting out crime and thus may make mistakes
on PC or act aggressively to “find” PC.
B. Concerns: judicial creativity, incompetence or weakness
5. Particularity Requirement
A. Warrant has a particularity requirement w/ respect to people, places and things
B. Anticipatory Warrants:
i. Are not categorically unconstitutional
a. There’s textually no 4th Amendment support for anticipatory warrants so either they should
have no restrictions b/c of the lack of constitutional restrictions or that they are ok when a
judge, looking at PC, says they are ok.
b. As a policy matter, it’s easy to validate b/c it ties LEO’s hands to some future event that will
create the PC they need to enter and that’s not so different from regular warrants
ii. AW: a warrant based on an affidavit showing PC that
a. at some future time (but not presently),
b. certain evidence of crime will be located at a specific place
c. when the warrant is executed
iii. Contain a triggering condition: condition precedent, in addition to the ordinary passage of time
a. It must be true not only that if the triggering condition occurs, there is a fair probability that
contraband or evidence of crime will be found in a particular place AND
b. There is PC to believe that the triggering condition will occur
iv. The PC requirement looks to whether evidence will be found when the search is conducted, thus
in some sense, all warrants are “anticipatory”
v. Grubbs/Garcia: when an AW is issued, “the fact that the contraband is not presently located at the
place described in the warrant is immaterial, so long as there is probable cause to believe that it
will be there when the search warrant is executed.”
vi. Grubbs and the Particularity Requirement for AW’s
a. The 4th only requires that warrants describe w/ particularity 1) the place to be searched and 2)
the thing to be seized.
b. Warrant itself need not describe the triggering condition.
c. Here D argued that a requirement that the warrant describe the triggering condition would
assure the individual being searched of the lawful authority to search as well as the
limitations on the search. SC rejects. The Constitution protects property owners not by
giving them license to engage the police in a debate over the basis for the warrant but rather:
1) Ex ante: the deliberate, impartial judgment of a judicial officer b/t the citizen and the
police protects the citizen or
2) Ex post: a right to suppress evidence improperly obtained and a cause of action for
damages.
Executing the Warrant

1. “Knock and Announce” Rules:
A. Rule: Before entering to execute warrant, LEO must “knock and announce” their presence but there
are exceptions that have almost become the rule.
B. Banks/Wilson v Arkansas: 4th requires police to “knock and announce” themselves before entering
premises to execute a warrant absent some law enforcement interest that establishes the
reasonableness of an unannounced intrusion
C. US v Banks:
15
i. Facts: In the course of executing a search warrant for drugs, LEO knock and announce. They
wait 15-20 seconds before forcing entry w/ a battering ram. They find drugs and D is convicted.
D moved to suppress the drugs, arguing that the 15-20 second wait was unreasonably short.
ii. Issue: After knocking and announcing, how long must LEO wait for someone to answer the door
before forcing entry?
iii. Held: LEO must wait for a reasonable amount of time before forcing entry.
iv. Rule:The “reasonable waiting period” is pegged to the exigency or risk of evidence destruction.
a. Here, LEO were executing search warrant to search for drugs. Waiting 15-20 seconds before
forcing entry w/ a battering ram is reasonable b/c of the high risk of destruction of
evidence/contraband by D.
b. Alternatively, if LEO were executing search warrant for stolen piano, that is harder to get rid
of, thus more waiting time is warranted.
c. You can’t peg the wait time to the amount of time needed to answer the door—then people in
bigger houses would always get more time.
v. Property Damage
a. Does the use of the battering ram matter? Outside of the exigency case, cts seem willing to
call for a longer wait time to avoid property damage.
b. Rule: In the absence of exigency, longer wait time to avoid property damage should be part
of the reasonableness calculation.
D. What would D’s remedy in Banks be if his 4th Amendment challenge won?
i. If D wants the exclusionary rule, he would have to argue that but for the unreasonably short wait
period, he would have been able to destroy X amount of the drugs. Hard argument to make.
ii. So D gets convicted.
iii. If D wants damages for his property, he would have to argue that he could’ve saved his front
door. The problem is that he’ll lose either on the door or the drugs, hard to argue that he
should’ve had time to do both let alone either one.
iv. If there is no exclusionary rule but there is a tort claim for property damage due to an
unreasonable search or seizure, then convicted felons may demand damages?
2. No Knock Entries
A. Richards v Wisconsin: in order to justify a “no knock” entry, the police must have a reasonable
suspicion that knocking and announcing their presence, under the particular circumstances, would be
dangerous, futile or inhibit the effective investigation of the crime by for example, allowing the
destruction of evidence
B. Banks/US v Ramirez: SC made clear that the “no knock” justifications apply even when the officers
must damage the property to make their unannounced entry; excessive or unnecessary destruction of
property in the course of a search may violate the 4th even though the entry itself is lawful and the
fruits of the search are not subject to suppression.
3. Presence of Third Parties During Execution
A. Wilson Rule: the conduct of LEO must be related to the authorized intrusion
B. Wilson Rule: the presence of third parties during execution of a warrant violates the 4th unless third
party is there to further the law enforcement objectives, ie presence of victim who can then identify
stolen property is ok
C. Wilson v Layne
i. Facts: LEO accompanied by WP reporter + photographer enter the home of P’s to execute an
arrest warrant thinking that suspect lives there. They mistakenly subdue Mr. P thinking that he’s
the suspect they are after—turns out that suspect is P’s son and he doesn’t live there. When LEO
realize their mistaken, they leave. WP photographer took some photos but nothing was ever
published. P’s sue LEO for money damages, arguing that the media presence violated the 4th
rights.
ii. Held: SC agrees. The 4th was not violated b/c of the mistaken identity but the presence of the
media made it a violation.
iii. Reasoning:
a. SC rejects LEO’s argument that presence of media has PR benefits. The purpose of law
enforcement does not include embarrassment. There’s a risk of humiliation, reputational
damages and prejudice, especially to an innocent plaintiff.
16
b. SC keeps stressing the special case of the home invasion, but despite the focus on the home,
this is really about emotional privacy.
c. SC is unanimous in finding a constitutional violation but no liability b/c of QI. Going
forward however, a similar violation will probably result in liability.
Warrant Not Required:
-1- Exigent Circumstances
Limitations
1. Requires a reasonable belief of exigency.
2. Mincey Rule: valid exigencies that justify a warrantless search:
A. Evidence would be lost or destroyed-Mendez/Dickerson
B. Hot pursuit of a fleeing suspect-Warden
C. Public safety/victim protection
D. Search warrant cannot easily be obtained
3. Mincey/Terry/Flippo Rule: the warrantless search is limited to the exigency that justify its initiation—the
search must end roughly when the exigency ends; thus mere evidence at a crime scene, without more, is
not enough to justify a warrantless search
4. Mincey v Arizona
A. Facts: LEO + other agents, pursuant to a pre-arranged drug deal, shows up at D’s house for the buy.
D’s acquaintance answers door and LEO bursts inside. Agents hear shots fired and sees LEO emerge
from bedroom wounded so other agents enter to search for other victims and get medical help for one
victim + LEO. They do not engage in any other searching. W/in minutes, DEA agents show up and
for the next 4 days, perform an exhaustive warrantless search, seizing 200-300 things, which is used
to convict D.
B. Held: SC said that the 4-day warrantless search was not justified by exigent circumstances and that
there is no “murder scene” exception to the warrant requirement.
C. Reasoning:
i. It’s unclear whether LEO’s initial seemingly forced entry is unlawful, especially considering this
was a pre-arranged deal. But when other agents then hear shots fired, that is clearly exigent. Ct
seems willing to green light the first phase since the second phase was clearly exigent
circumstances.  The whole fight is about the 4 day search.
ii. More paper work? It’s clear that they would’ve gotten a warrant had they asked for one, but SC
says nonetheless, had to get a search warrant first—they had plenty of time.
iii. Is Mincey effectively immune from prosecution? While the evidence from the 4 day search is
out, the evidence collected while the agents were looking for other victims is still in.
5. Warden v Haydon—hot pursuit
A. Facts: Cab company was robbed by armed robber; two cab drivers in vicinity followed the suspect
and relayed his description to a dispatcher, who relayed the info to police. Police arrived at the scene
and immediately searched the house finding the robber, two guns and the clothes that the robber had
been wearing.
B. Held: This was a valid warrantless search.
C. Reasoning:
i. The 4th does not require LEO to delay in the course of an investigation if doing so would gravely
endanger the lives of others or their own.
ii. Speed here was essential and only a thorough search of the house for persons and weapons could
have ensured that D was the only man present and that LEO had control of all weapons.
iii. Pursuit needs to be continuous and unbroken.
6. Mendez v Colorado
A. LEO smelled marijuana smoke coming from a hotel room. They asked the manager to get the key to
open the door and let them in. When he did, LEO found drugs + saw D flushing marijuana.
B. Held: the smell of marijuana smoke justified the warrantless search.
7. Mendez v Dickerson
17
A. LEO had a knock-and-announce warrant to search D’s house for drugs but before they announced or
entered, there was a noisy scuffle w/ D and his friends outside of the house. LEO arrested D. LEO
then entered house w/o any announcement, meaning the entry was not authorized by the warrant.
LEO argued exigent circumstances—the noise from the scuffle would have alerted anyone else inside
to dispose of evidence.
B. Held: SC bought LEO’s argument and found the entry legal.
Investigative Needs
1. Does the severity of the crime matter?
A. The Welshcourt considered the seriousness of the crime (as defined by the penalty that WI attached to
the violation) when it decided that the crime was not *important* enough to justify a warrantless
home entry. In terms of destruction of evidence, the home or nonhome distinction doesn’t matter—
both result in loss of evidence.
i. Rule: The court is more interested in protecting the privacy of the home and is using the
seriousness of the crime as a crude proxy.
B. Why define the gravity of the offense by the punishment? Perhaps that gives you insight into how the
populous deems the crime but it’s kind of really only *easy* to tell when the crimes are vastly
different.
2. Special rules for the home:
A. Rule: a warrantless search/seizure/entry into the home is presumptively unconstitutional.
B. Welsh Rule: warrantless search/seizures [into the home] based on exigent circumstances seem to be
more persuasive when the severity of the crime is greater (as defined by the state law penalty)
C. Mendez/Dickerson Rule: warrantless entry into home justified if there’s a risk of loss of evidence
D. McArthur: Limited seizure of D (making him wait outside/go inside while being observed) while
LEO gets search warrant to search for drugs inside D’s home is not a violation of the 4th. It’s a lesser
intrusion that balances law enforcement needs w/ home privacy interests.
E. OJ Simpson/Brigham City: an objectively reasonable basis to believe that a home is occupant is
seriously injured or imminently so threatened = entry w/o warrant is permissible
3. Welsh v Wisconsin
A. Facts: LEO arrives on scene and speaks w/ bystander who says he saw D drive erratically, come to a
stop in an open field and wander out, either drunk or sick. LEO figured that D went home so goes
toD’s home. D’s stepdaughter answer door and LEOsomehow gets in, goes to the bedroom and finds
D passed out drunk. LEO arrests D for drunk driving. LEO claims warrantless entry justified by
exigent circumstances—imminent loss of BAC evidence and hot pursuit.
B. Held: The warrantless entry into the house is not justified by exigent circumstances.
C. Reasoning:
i. Rule: a warrantless search/seizure of the home is presumptively unconstitutional
ii. Rule: An important factor to consider whether any exigency exists is the gravity of the underlying
offense. No exigency is created simply b/c there is PC to believe that a serious crime has been
committed. When the govt’s interest is to arrest for a “minor offense,” the presumption of
unreasonableness is difficult to rebut.
iii. Here, application of the exigent circumstances exception for warrantless home entry cannot be
sanctioned when there’s PC to believe that only a minor offense, like this one, has happened. The
state has determined that this is a “minor offense,” and since it’s not punishable by jail time, it’s
enough to justify a warrantless home entry.
iv. Arresting D on a public street would be a diff case—no warrant necessarily, but no need to rely
on logic of Welsh.
4. Illinois v MacArthur
A. Facts: LEO goes with Tera to her trailer to get her belongings. They wait outside while she collects
her stuff. She comes out and tells LEO that her husband, D, had marijuana inside. LEO want to go in
and investigate but they have no warrant. So they force D to wait outside w/ them or enter the house
only as the LEO are watching him while someone goes to get a warrant. LEO returns w/ warrant,
they search and find drugs. D is convicted and argues that he was unconstitutionally seized when he
was forced to wait for the LEO to return w/ a warrant.
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B. Held: The temporary seizure made while LEO were out getting a warrant was a small intrusion and
justified based on the exigency of possible destruction of evidence.
C. Reasoning:
i. B/c D has denied consent for LEO to enter, LEO cannot enter w/o a warrant.
ii. The restriction was reasonable and lawful:
a. LEO had credible info that there was drugs inside.
b. LEO had good reason to believe that if D wasn’t restrained, he would destroy the drugs.
c. LEO made reasonable efforts to reconcile law enforcement needs w/ privacy needs—the wait
for the warrant was 2 hours and D was allowed to go inside as long as LEO could observe his
movements from the entryway.
iii. Unlike Welsh,this isn’t a “minor offense” as defined by the penalties. B/c the home is considered
so sacred, LEO can’t just rush in when D is not allowing them in but as long as LEO can observe
D’s movements, the risk of lost evidence is reduced.
iv. Hypo: If D bolted inside perhaps to destroy the drugs, then maybe that exigency would justify
warrantless entry.
v. Hypo: If LEO told D that they were waiting for a warrant and D just bolted inside, then is an
exigency created? It’s hard to say b/c in some sense LEO created the exigency.
Victim Protection
1. OJ Simpson/ Brigham City: LEO may enter a home without a warrant to render emergency assistance to
an injured occupant or to protect an occupant from imminent injury if LEO have an objectively
reasonable basis for believing that there is or will be violence
-2- Plain View Doctrine

1. Plain View Doctrine:
A. Is an exception to the warrant requirement and justifies seizures only, not searches
B. If LEO is engaged in legitimate investigative activity and comes across evidence not covered by any
warrant, the LEO is allowed to seize the evidence provided there’s PC to believe the evidence is the
object of illegal activity from mere visual inspection
C. Justification: as long as the LEO is acting w/in the scope of permissible police authority/the 4th is
being complied with, the additional “intrusion” of seizing objects in plain view is minimal and no
greater than the initial invasion of privacy interests
2. Limitations on the PVD:
A. LEO must be lawfully located in the place from which the object to be seized can be seen
B. LEO can seize objects in plain view (like a bag), but cannot search containers w/o a warrant or by
some other exception to the warrant requirement
C. There must be PC that the object in plain view is evidence of crime
D. PC must be immediately apparent, w/o any need for additional searching
i. Hicks Rule:to seize under the PVD, the PC to seize must be apparent from a mere visual
inspection. A tactile but cursory search is not allowed under the PVD.
ii. Arizona v Hicks:
a. Facts: After hearing gunshots, LEO enter D’s apartment looking for the shooter, any other
victims and other weapons. Apartment is crappy but LEO noticed two new stereos. LEO
moved it to look at its serial number and learned that the stereo had been stolen. LEO then
seized the stereo. AZ argued that while PC didn’t arise until after LEO had read the serial
numbers and learned that it had been stolen, nevertheless under the PVD, LEO could seize
anyway.
b. Held: SC rejected AZ’s argument. Moving the stereo to read the serial numbers constituted a
search that was outside the bounds of the exigency that justified entry into the apartment.
The mere suspicion that the stereo was stolen doesn’t rise to level of PC that justifies the
warrantless search.
3. Horton Rule: PVD applies even if the LEO expected to find the evidence in advance; there’s no
requirement that the evidence seized was inadvertently seen. It’s ok for the LEO to “hope” to find
evidence.
A. Horton v CA
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i. Facts: The search warrant issued in Hortonauthorized LEO to search and seize evidence of a
robbery. LEO believed he might find weapons as well but weapons were not listed on the
warrant. LEO turned out to be right—he found weapons and argued that seizure was proper
under the PVD.
ii. Held: SC agreed.
a. To base the rule on the LEO’s subjective state of mind is difficult and silly since the 4th
requires cts to ask what the reasonably objective person would do.
-3- Special Case: The Automobile Exception

1. Evolution of the Exception:
A. Carroll/Chambers Rule: If LEO have PC to believe that there’s evidence of crime in a car, they may
seize or searchthe car or both. Justification is based not only on risk of the car/evidence moving, but
also on the reduced privacy interests of a car. However if LEO find another container within the car,
more rules apply, see 2.
B. Carroll Doctrine: allows the police to searchan auto w/o obtaining a warrant if they have PC to
believe that the car contains evidence of criminal activity. Exception does not depend on whether
there was PC to arrest the driver or any particular individual; rather there must be PC to believe that
evidence is somewhere in the car. Rationale seems to turn on car’s mobility, and therefore, evidence’s
mobility
C. Chambers Corollary: SC rejected the argument that the car exception permitted only the warrantless
seizure and not the searchof the car. A warrantless search of a car, based on PC to believe that the
vehicle contained evidence of illegal activity is justified not just by the risk of movement but also by
the fact that intrusion into a car is a limited privacy intrusion.
i. A search invades privacy concerns. A seizure invades possessory interests.
ii. Individuals have less of a privacy interest in cars:
a. Cars are a common means of transportation and are not intended to keep things private
(unlike homes or
b. Individuals driving in cars are in plain view
c. Cars are heavily regulated so when you bring your containers into the car, you are doing so at
your own risk
d. The minimal intrusion of searching a car is the equivalent of seizing a car and waiting for a
warrant to search it.
2. Detached or Moveable Containers—In and Out of Cars
A. If there’s both PC as to the car and then to a container found inside the car:
i. LEO can search the car and search the container where the PC attaches under Acevedo. But the
scope of the search is limited to the PC.
ii. CA v Acevedo:
a. Held: Police may search any container located in a car, w/o a warrant, as long as they have
PC to believe that it holds evidence of crime.
b. Dissent: After Acevedo, LEO needs a warrant to open a container—until the container is
placed in a car. Moreover, there is still the need to determine whether there was PC to search
a container found in a car.
iii. Hypo: X leaves her suitcase on the sidewalk and a LEO has PC to believe that counterfeit cash is
inside the suitcase but the LEO has no W.
a. No exigent circumstances as long as LEO maintains sight of suitcase or seizes the suitcase
but needs warrant to search.
iv. Hypo: X places her suitcase in the trunk of a sedan that is parked on a ramp and then exits the
ramp.
a. No warrant necessary, LEO can search the car and the suitcase.
v. Hypo: What if LEO finds a locket in the suitcase. Can they search the locket?
a. Probably not unless there’s PC to find cash in the locket. They need a warrant to search the
locket.
vi. Hypo: X is carrying her suitcase and reaching to open the trunk of her parked car when LEO
seizes the suitcase and searches it.
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a. LEO can’t search w/o warrant. Suitcase not in the car.

vii. Hypo: X gets out of her sedan, opens the trunk and pulls out her suitcase before an approaching
LEO seizes the suitcase and searches it.
a. LEO can’t search w/o a warrant. Suitcase not in the car.
B. Search of a Passenger’s Property
i. Houghton Rule: LEO may search containers in a carthat clearly belong to a passenger. The
searchable container need not belong to the driver only.
ii. Wyoming v Houghton
a. Facts: LEO stopped car for traffic violation and noticed a syringe in the driver’s pocket.
Driver admitted to taking drugs. LEO then searched car for contraband. He found a purse on
the back seat belonging to D-passenger. He searched the purse and found drugs. D was
arrested and convicted but argued that since the LEO knew the purse didn’t belong to the
driver, there was no PC to search.
b. Held: SC rejected and said that the LEO had PC to search the car and any container in the car
that might contain the object of the search.
c. Dissent: Argued that the spatial association b/t passenger and driver is not enough to extend
PC to all other passengers. On that logic, if the driver had been a cabbie, LEO could’ve
searched the briefcase of the passenger even though the passenger has no connection to the
cab driver.
-4- Arrests
1. Common law background:
A. Permissible warrantless arrests at time of Constitution’s framing:
i. Felony committed in LEO’s presence
ii. Felony committed w/ PC to believe that the potential arrestee did it
iii. Misdemeanor committed in LEO’s presence
iv. Breach of the peace
B. Subsequent statutes expanded the LEO authority to arrest w/o a warrant.
C. But see Atwater: founding era common law not as clear cut on what crimes and misdemeanors
allowed for warrantless arrests
2. Current law:
A. PC is required for all arrests.
B. Arrest warrants tends to turn on where it will take place, ie home vs public place.
C. If no AW, arrested party can assert a right to a hearing, usually w/in 48 hours to demand PC
3. Arrest Warrant
A. Authorizes the arrest of a particular person but it does not specify the particular places where the
arrest can be effectuated.
B. LEO armed w/ an AW could only enter the suspect’s home if there is reason to believe that the
suspect is actually in the home but this need not be demonstrated to a judge.
C. This is unlike a search warrant which requires particularity as to the place to be searchedCt is
showing a preference for protecting privacy interests over liberty interests
4. Why should arrests ever be constrained by a warrant requirement?
A. We want a judge to decide before deprivation of liberty takes place. LEO have lots of discretion so
this is one way of cabining it.
B. The liberty deprivation is pretty invasive both physically and nontangibly, ie privacy invasion,
reputational costs, humiliation etc.
C. Warrants may reduce LEO error rate.
D. Warrants may also pacify suspects
5. Public Arrest: No AW Required
A. Watson Rule: For public [felony] arrests, LEO need not have an arrest warrant. (Though LEO needs
PC to arrest.) Additionally, there is no exclusionary rule or “fruits of the poisonous tree” doctrine for
an unlawful arrest—illegal arrest does not preclude a prosecution.
B. US v Watson:
i. Facts: LEO receive reliable tip that D had stolen credit cards. At arranged meeting, tipster
signaled to LEO that D had stolen cards. LEO move in, arrest D but found no cards on him. W/
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D’s consent, LEO then search his car and find stolen cards. D argued that the fruits of the search
should be suppressed b/c they were the “product” of an illegal and warrantless arrest.
ii. Held: SC rejected. For public arrests, LEO needs PC but need not have an AW.
iii. Reasoning:
a. SC relied heavily on c/l reasoning but digs through lots of sources to justify. (When text isn’t
self-executing, have to look at lots of sources.)
b. Cost of requiring LEO to get warrant prior to public arrest outweighed privacy interests, thus
warrantless public arrests ok.
C. Whether an arrest violates the AW warrant is really a question of what is the harm caused by the lack
of a warrant?
i. If there is PC, then would’ve been arrested anyway but the delay caused by procuring the warrant
might cause loss of evidence or suspect flight.
ii. We could say that for a D who was arrested in violation of the 4th, the evidence should be
excluded?
iii. Damages will have to link the failure to get a warrant w/ the harm.
6. Home Arrest: AW Required
A. Payton v NY: since warrants are required to look for property in the home, similarly, AW are
necessary to look for people in a home.
B. Payton Implications:
i. For 4th purposes, an AW founded on PC implicitly carries the limited authority to enter a dwelling
in which the suspect lives when there is reason to believe suspect will be there.
ii. LEO cannot get an AW, wait until the suspect has left, and then break into home and search it or
use the PVD to search, using the AW as authority for the entry.
7. Home Arrest: AW Not Required: when there’s PC of felony + exigent circumstances
8. Associated Search Rules:
A. Ordinarily, no search warrant is necessary to enter home to execute AW
B. Once in the home, PVD applies
C. Steagald Rule for 3rd Party Homes: In the absence of exigency or consent, a search warrant must be
obtained to look for a suspect believed to be in the home of a third party, if the suspect is not a
resident of the premises—a judge must determine if there is PC to believe that the suspect is located
in third party’s home. This rule better protects the privacy interests of the third party.
9. May police arrest for any crime?
A. An arrest may be constitutional even if arrest not authorized by local law
B. First check non-supreme law, ie local law
C. If no use, ask whether the crime would’ve been arrestable w/o a warrant at common law (See #1)
D. If still unclear, (ie if it’s an arrest of r a minor misdemeanor), balance individual’s privacy and liberty
interests against state’s interest in the crime
E. Atwater Rule: a custodial arrest doesn’t violate the 4th even if the underlying offense carries no jail
time or any compelling need for detention
F. Atwater v Lago Vista-Yes, nothing in the 4th prohibits it.
i. Rule: It is not a violation of the 4th for LEO to arrest an individual if he has PC to believe that the
person has committed even a very minor criminal offense in his presence.
ii. Facts: TX law authorizes cops to arrest violators or issue citations for violations of the seatbelt
law. The seatbelt violations are misdemeanors that carry a $50 penalty. Atwater was arrested in
lieu of a citation + fine. She brought a Sec 1983 claim arguing that the warrantless arrest was an
unreasonable seizure.
iii. Held: SC rejected Atwater’s argument—the 4th does not require that custodial arrests be based on
offenses that carry jail time or any compelling need for detention.
iv. To do so would be very complicated to administer as it would require every cop to know the
penalty for every offense. The PC standard, determined on the spot, is easier to administer. Plus
it’s hard to know what’s a “minor” crime.
v. This is a very pro-rules case.
-5- Searches Incident to Arrest

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1. Why have such a rule?

A. The arrest is more valuable as it gives another opportunity to search for contraband or weapons
automatically
i. Arrest + Search of Grab Area (w/o PC) = OK
B. To curb the risk of more harm or loss of evidence
2. Spatial limits to further intruding on arrestee:
A. Chimel Rule: the following are automatic rights as searches ‘incident to arrest:’
i. Search the arrestee to remove any weapons or to search for evidence to avoid concealment or
destruction
ii. Search the ‘area w/in his immediate control’ or the grab area from which the arrestee may be able
to get a weapon or destroy evidence
iii. No reasonable suspicion, PC/SW is necessary to ‘search incident to arrest’ of grab area
iv. This doesn’t justify searching through all desk drawers or closed or concealed areas in that room
itself
B. Chimel v California: A warrantless search of D’s house, including in the bedroom and in dresser
drawers is beyond the scope of a ‘search incident to arrest,’ and thus is an unreasonable search.
C. The grab area’s parameters are determined on a case by case basis.
3. Going beyond the grab area:
A. Arrest of one suspect might give rise to the exigency to search for arrestee’s colleagues who may also
destroy evidence or pose a threat.
B. Buie Protective Sweeps:
i. LEO may conduct a protective sweep, a “quick and limited search..” without PC or RS of closets
and other spaces immediately adjoining the place of arrest from which an attack could be
launched
ii. Beyond the adjacent spaces, LEO needs articulable suspicion that co-conspirators are present in
order to do a protective search ~Terry
iii. PVD in effect for both
4. Hypos:
A. Hypo: Suppose LEO lacks PC to believe evidence is in a drawer next to D. Can they search incident
to arrest?
i. SC making some categorical rule about area w/in reach; nowhere does SC require PC to search
that area.
ii. Grabable area (w/o PC) + arrest = ok
B. Suppose cop has PC to believe that weapon is in next room?
i. Can’t search b/c not in grabable area.
ii. Even w/ PC, have to find some other exception or go get a warrant
C. Suppose LEO has articulable suspicion that a person is upstairs? (Buie Protective Sweep)
i. Yes LEO can engage in protective sweep but can’t go digging
5. SITA of the Person
A. US v Robinson: Even when there’s no PC to search, no concerns of self-defense or risk of evidence
destruction, a valid arrest always supplies LEO w/ the automatic power to neutralize an arrestee
whether or not suck risks exist on the facts. (Held: search of cig pocket that contained drugs, as
incident to a valid traffic violation arrest did not violate the 4th.) SITA is not limited in scope, thus
containers found on the person can be searched by SITA. SC wanted an easy rule for LEO to follow.
B. Terry Stops are diff: these require reasonable suspicion of bodily harm but b/c arrests are a more
serious invasion that generally creates greater risks, the Robinson automatic rule to search the person
incident to arrest is necessary.
6. SITA as Applied to Cars
A. NY v Belton
i. Belton SITA Rule: when LEO has made a lawful custodial arrest of the occupant of a car, he may
also search the passenger compartmentof the car since this is always w/in the grab area. (This
rule holds true even when the occupant is handcuffed and in the police car—Thornton.) But the
Belton rule does not give LEO the power to search the trunk unless on the facts of a specific case,
the trunk is w/in the grab area.
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ii. This is diff from the car exception to the warrant requirement. There, LEO can search the entire
car, including the trunk, w/o a warrant as long as there’s PC to believe there’s evidence of crime.
iii. In contrast, SITA for cars allows an automatic intrusion into the grab area w/o PC or a warrant as
long as the arrest was made validly. This includes the right to search any containers found w/in
the car.
B. Limits:
i. Time and Space: Thornton v US:
a. Facts: LEO sees D driving erratically; runs a check on the tags and learns that they don’t
match the vehicle. LEO sees D pull over and get out. LEO approaches D and tells him about
the tags. D is acting oddly so LEO asks if he has any drugs/weapons on him, but D says no.
D then consents to a body search where LEO finds drugs. LEO arrests D, places him in the
squad car and then goes to search the car and finds a gun. D is convicted of drug possession
and firearm possession in furtherance of a drug crime.
b. Plurality: The fact of the arrest triggers the authority to search even though by the time of the
search, D is safely locked up in the squad car.
c. Reasoning:
1) Rule: Beltondoes not require the LEO to initiate contact while suspect is in the car.
However, an arrestee’s status as a car occupant or “recent occupant” may depend on his
spatial and temporal relationship to the car.
2) Rule: The Beltongeneralization is based on the need for a clean rule for cops. Once an
officer determines that there is PC to make an arrest, it is reasonable to allow cops to
ensure their safety and to preserve evidence by searching the entire passenger
compartment, even when, in cases like this, it’s unlikely that the arrestee could’ve
gotten at the weapon.
3) Concurrence justifies this on the basis that gathering evidence as related to the crime is
a valid justification
d. Thornton rule is unclear for non-car situations.
ii. Containers in the passenger compartment: can be searched w/o a warrant pursuant to SITA-
Belton
iii. Knowles No Arrest, No Search Rule: LEO, who has the option of arresting or issuing a citation
for a traffic stop cannot issue a citation and then “search incident to that citation.” LEO must
arrest first, then search. But LEO could arrest first, then search, and then let suspect go—carrying
through w/ the arrest is discretionary.
C. Special Case: CO v Bertine and Inventory of Car’s Contents
i. Bertine Rule: if cars are lawfully held in police custody, the police may inventory the contents of
the car pursuant to established standardized procedures; these are administrative searches and are
*not* searches for law enforcement or evidentiary purposes, thus no warrant or PC is required
ii. Purpose of an administrative search like this:
a. Owner of car needs protection against threat of theft or damage to the car and LEO needs
protection against claims of lost or stolen property
b. LEO and public need protection from the potential danger that the vehicle or its contents
might cause
iii. As long as the search is conducted according to established and standardized procedures/regs, if
LEO come across evidence, it can be used against a suspect. If the search was not conducted
according to established procedures, it will most likely be excluded. (Thus a pretextual search
where LEO’s main motive is to look for evidence is probably still ok as long as LEO strictly
adheres to the admin search regulations.)
-6- Consent
1. A search based on consent is reasonable under the 4th, thus LEO need not have a warrant or PC to search.
2. An OH study shows that 91% of stopped motorists consented to a search. Why are consent rates so high?
A. If don’t consent, situation might get worse.
B. For those w/ illegal stuff: a) might say yes and exclude later or b) comply out of fear that if you say
no and they search anyway, they’ll search more thoroughly
C. It’s rational to say “yes.”
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D. It might be that the rates are affected by who gets stopped; it’s possible that the people stopped are a
subset of the people who would say “yes”
3. Consent must be voluntary.
A. Schneckloth v Bustamonte Rule: whether consent to search is voluntary or is instead based on
express/implied coercion or duress is a totality of the circumstances standard. This takes into account
the characteristics of the accused and the details of the interrogation. (This is unlike issues of waiver
which first require knowledge by D of the right to and consequences of waiver.) While knowledge of
the right to refuse consent is one factor, the govt need not establish such knowledge as the sine qua
non of an effective consent.
i. Facts: LEO stopped car due to traffic violation. Of 6 people in car, only 1 had ID. LEO asked
that one if he could search his car and the guy said “sure go ahead.” That guy was helpful and
even opened the trunk/glove compartment for the LEO. LEO found stolen checks under the seat.
D was convicted and on appeal argued that b/c he didn’t know that he had the right to refuse
consent, the consent was invalid.
ii. Held: LEO need not inform suspect of the right to refuse and the suspect need not know that he
has the right to refuse in order to still give effective consent.
iii. Reasoning:
a. “Voluntariness” is a question of whether there was a meaningful choice or if there was
express/implied threat of force.
b. Interestingly, here LEO asked if there were any drugs in the trunk and then D went ahead and
voluntarily opened the trunk. This seems to be implied consent but then again it seems like
the LEO’s q is deceptive.
B. Factors that determine ‘voluntariness:’
i. Voluntariness of suspect’s custodial status
ii. Coercive police procedures
iii. Extent and level of suspect’s cooperation
iv. Suspect’s intelligence and education
v. Suspect’s belief that no incriminating evidence will be found
vi. Location of stop
vii. Time of day etc.
C. Jimeno Limits on Scope of Consent: since suspect can limit the scope of the search, the q is whether
a reasonable LEO would believe that D consented to the search of the area that officer searched.
i. D consented to a *general* search of the car for narcotics. LEO found a paper bag on car floor
and searched it.
ii. Held: Since LEO told the D that he was searching for drugs and D consented w/o expressly
limiting the scope of the search, the search of the bag was ok. A reasonable person would be
expected to know that drugs could be found in such a bag.
D. Robinette Consent After Completion of a Stop: Consent is voluntary even if given after the
completion of a traffic stop and LEO has given license/registration back to the suspect. LEO need not
always inform detainees that they are free to go before a consent search may be deemed voluntary.
4. 3rd Party Consent
A. IL v Rodriguez-perceived co-occupant authority
i. Facts: D’s woman friend, a third party, gave consent to LEO to search D’s apartment.
Unbeknownst to the LEO’s, the woman friend had moved out a month earlier but had retained a
key w/o permission.
ii. Held: Even though the friend did not have actual authority to authorize the search since she did
not have joint control or access after moving out, the LEO’s reasonable belief in the friend’s
authority to consent would validate the entry.
B. Actual co-occupant authority
i. GA v Randolph: if both people, like a husband and wife, have the authority to consent, and one
gives consent while the other one refuses consent, the physically present co-occupant’s denial of
consentwins. (SC tries to hitch this rule on ideas of normal social interaction—an unwelcome
response from one co-occupant usually tells the person that he’s unwelcome.)
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ii. Matlock Rule: the consent of one who has common authority over the premises is valid as
against the absent nonconsenting person w/ whom that authority is shared.
3. REASONABLENESS ALTERNATIVES
Terry Stops
1. Rules vs Standards
Rules Standards
 Are based, and therefore limited, to the information  Flexible; allow decisionmaker to incorporate diff
that the rulemaker possessed when rule enacted info into his decision calculus, often w/o having to
 Simplicity, clarity and forewarning offered before change the rule
conduct occurs  Uses more judicial resources
 Ease of compliance by actors  Case-by-case analysis
 Ease of application by cts  Maybe cases won’t be treated in the same way
 Stable over time  Are not stable—many standards may crystallize into
 Application of rules conserves judicial resources rules
 Allows for equal treatment  But in a rapidly changing situations, flexibility of
 Tend to be anti-govt applications in 4th A context standards may offer more flexibility
 Tend to be pro-govt applications in 4th A context
2. Are stds excessively pro-govt in the 4th A context?

A. 4th A reasonableness inquiry lets cts take into account factors not formally taken into account in
traditional warrant/PC formula such as the seriousness of the crime, extent of the govt’s privacy
invasion; but the reasonableness standard doesn’t necessarily mean that there’s less stringent limits on
police searches and seizures
i. Winston v Lee:shopkeeper was wounded during an armed robbery but he managed to wound the
robber as well. D, who had a gunshot wound, was admitted to a local hospital. LEO were denied
a warrant to “search” for the bullet in D’s body (via surgery and general anesthesia) even though
they argued that they needed to compare the bullet lodged in D’s body w/ the type of bullets used
by the shopkeeper. The court determined that a “body search” like that would be unreasonable.
B. Theory: judges have cognitive biases or pro-govt preferences
C. There’s a worry that appellate cts will defer to trial cts and the trial cts will defer to the police. If
there are no fairly clear rules telling LEO what they may and may not do, then cts are seldom going to
say that what the LEO did was unreasonable.
D. But the truth is, judicial behavior is influenced by many factors.
E. Administrative searches: During early 4thAmendment jurisprudence, the emphasis on warrants and
PC would have precluded suspicionless govt inspections for admin purposes, such as housing or fire
code violations. But under Camara v Municipal Court and See v Seattle, SC held that unlike searches
pursuant to a criminal investigation, inspection programs aimed at securing city-wide compliance w/
minimal physical standards for property don’t violate the 4thand are not unreasonable searches. The
primary govt interest is to prevent even the unintentional development of conditions hazardous to
public health and safety. When the need for the inspection is weighed against the minimal intrusion,
the need outweighs.
3. Terry Stop and Frisk Rule
A. If LEO has reasonable suspicion of illegal activity
i. Reasonable suspicion: reasonable inferences drawn from specific and articulable facts
ii. Probable Cause is not the std
B. Then he may stop the suspect in an investigative stop
C. If LEO has reason to believe that he’s dealing w/ an armed and dangerous individual, he may pat
down/frisk the outer garments for weapons
i. Frisk must be reasonably necessary for safety
ii. Std: would a reasonably prudent man think that this his/other people’s safety is at risk?
iii. Such a search is NOT justified by any reason to protect evidence, but rather, only to justify the
safety of the officer/bystanders
4. Terry v Ohio
26
A. Facts: LEO sees D’s walking back and forth in front of a store; to the beat cop; to the LEO, an
experienced beat cop, it looks like they were casing the place in preparation for a robbery. LEO
approaches them, id’s himself as a cop and asks for ID. The men mumble something and then LEO,
his suspicions aroused, spins Terry around and then patted down the outside of his clothing. He found
a pistol. Terry was convicted of carrying a concealed weapon. He challenged the search and seizure
of the weapon.
B. Held: While the LEO had no PC to seize Terry and search for weapons, the limited search and seizure
was justified as an investigative stop.
C. Reasoning:
i. SC says nothing about the initial stopping and questioning of Terry; can’t tell if his initial q’s are
a seizure. Bostick etc happens later thus at this stage, no 4th constraint.
ii. The stopping and spinning around is not an arrest but rather, it’s an investigative stop made w/
reasonable suspicion; SC very careful to say that the std is not PC
iii. Frisk: pat down of outer clothing to find weapons and ensure safety only
iv. Camara v Municipal Court: there is no ready test for determining reasonableness other than by
balancing the need to search [or seize] against the invasion which the search [or seizure] entails
v. Govt interest: effective crime prevention and detection
5. Refinement of the Terry Rule
A. “Stops”
i. Dunaway v NY:D, a murder suspect, was taken into custody w/o PC and although he was not told
that he was under arrest, he would’ve been physically restrained had he tried to escape. SC held
that the statements he had made while in custody were the fruits of an illegal arrest and that this
was not a Terry stop.
B. Plain Feel Doctrine: if LEO, in the course of a legit stop and frisk, has PC to believe that he’s feeling
contraband on the person, LEO can seize it w/o a warrant
i. Minnesota v Dickerson:In the course of a stop and frisk, LEO concludes that the object that he
feels is not a baggie. LEO then squeezed and manipulated the baggie to ascertain its character.
The tactile manipulation provided LEO w/ the PC to believe that the item was a lump of crack.
SC held that the tactile manipulation exceeded the scope of a legit frisk for weapons and thus the
seizure was illegal.
C. Stop Duration
i. Sharpe Rule:reasonable time for LEO to confirm or deny his suspicion of illegal activity or
potentially illegal activity. Cts will look further at whether LEOs are acting in a swiftly
developing situation.
ii. Prof: time reasonably required to effectuate law enforcement’s purpose
a. Florida v Royer: LEO stopped a passenger at an airport on suspicion that he was carrying
drugs. LEO took 15 mins to search his luggage and found drugs. Plurality held that the
removal of Royer to an interrogation room + length of time was far more intrusive than an
investigative stop could be—especially considering that LEO could’ve searched on the
concourse or used drug sniffing dogs to conduct the search expeditiously.
b. US v Place:LEO had articulable suspicion that a passenger who had just deplaned had drugs
on him. LEO seized his suitcase and took it to another airport where a drug sniffing dog
reacted positively to one suitcase which turned out to contain drugs. Search took 90 mins.
SC held that seizing the suitcase for 90 mins w/o PC was unreasonable. Terry only permitted
LEO to detain the luggage briefly to investigate the circumstances that aroused his suspicion
provided that the investigative stop is properly limited in scope.
D. Special car rules
i. Mimms Rule: LEO can order drivers to step out of the car briefly—this is a rule—after you’ve
been stopped, to ask you to get out of your car is only a minor additional intrusion
ii. MD v Wilson: If driver has been stopped lawfully, it’s no more an intrusion to ask the passengers
to exit the car as well since they too have been stopped, practically speaking.
iii. MI v Long: If suspect is outside of the car, Terry permits LEOs to search the passenger
compartment of the car for weapons, but it’s limited to those areas in which a weapon may be
placed or hidden.
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What is reasonable suspicion?

1. Evasion in a high crime area
A. Wardlow Rule: unprovoked suspect flight in a high crime area constitutes reasonable suspicion
B. Rule: location or suspect’s presence in a certain area ≠ reasonable suspicion although location can be
one of several factors
C. Rule: flight is not a per se rule of reasonable suspicion
D. IL v Wardlow
i. Facts: Wardlow ran away upon seeing a caravan of police cars approaching in an area known for
drug trafficking. Though at trial, LEO’s recollection of events seemed kind of sketchy. LEO ran
after him and stopped him. LEO frisked him for weapons and found a gun on him. Wardlow was
arrested.
ii. Held: the location + evasion = justified Terry stop.
iii. Given that it’s really hard to determine the meaning of the flight, maybe judges are passing off
their judgments as reasoned opinions. It’s also possible that a judge’s ability to read the info is
different from and less perceptive as compared to the beat officer. Thus, in many cases like this,
the judge is going to defer and follow LEO inferences. If a judge doesn’t know what to think, he
has someone who does—the LEO.
iv. Dissent: Stevens-there are lots of innocent explanations for flight in a high crime area: frightened,
scared of police abuse (which is a legit concern for many of these areas) etc.
2. Use of Informants
A. LEO’s assessment of reasonable suspicion can depend on informants
B. White Rule: similar to the Gates analysis on PC, informants’ info, when looked at under the totality
of the circumstances test, can be used to support the reasonable suspicion requirement; an informant’s
basis of knowledge + veracity are relevant factors in the determination but are to be applied more
permissively since PC is a more rigorous standard of proof
C. JL Rule: LEO are not permitted to stop and frisk based on an anonymous tip w/o the standard indicia
of reliability
D. Florida v JL
i. Facts: LEO received an anonymous tip that a young black male in plaid clothes at a particular bus
stop was carrying a gun. LEO go to the bus stop and see 3 black males, one wearing a plaid shirt.
W/o any additional info, LEO stopped and frisked the one w/ the plaid shirt and seized a firearm
from his pocket. At trial, govt urged the SC to adopt a “firearm exception” to the rule that an
anonymous tip must be accompanied by specific indicia of reliability to be relied upon.
ii. Held: SC rejected govt’s argument and found that the anonymous tip here lacked the indicia of
reliability, as required by White, thus the search and seizure were illegal.
iii. Reasoning:
a. There was no prediction of future activity or info that would show that the tipster had
knowledge of concealed criminal activity.
b. Rule: there is no firearm exception whereby threat of firearm + no indicia of reliability could
be enough to justify reasonable suspicion
c. Rule: SC left open the possibility that where the potential danger is so great, ie bombs etc,
then the requisite showing of reliability might be relaxed
Profiling and Discretion
1. How do we define profiling?

A. Targeting a class characteristic for the purpose of subordination
B. Using suspect descriptions from eyewitnesses; many people say that is not profiling b/c that’s just
investigation of a crime. Is that different from C.?
C. Using observable characteristics as proxies?
D. Profiling can happen w/ or w/o race. It need not have anything to do w/ race.
2. Comparing officer discretion
A. Using observable characteristics?
i. Use of profiles vs generation of profiles
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ii. Generation might be created b/c of discretion

iii. But then the generated profile might constrain discretion; if you ignore it, then you’re just not
using the profile
B. Normative perspectives
i. Profiling “doesn’t work”—they will be horribly inaccurate or perhaps backfire—will they be
stable in a dynamic atmosphere when those subject to scrutiny react?
ii. Profiled people are especially harmed
iii. Harms override advantages: often or sometimes?
iv. Profiling is inevitable
C. How do you minimize bad profiling
i. Someone should prohibit bad formal policies (but formal policies might be hard to find in US)
ii. Even w/ no bad formal policies, you might get bad policies, so someone should scrutinize LEO
actions. See Whren.
3. How do you eliminate the problems?
A. Cts? Cts are somewhat reluctant to police the police.
B. Politics or some other agent could prohibit bad formal policies. Though that could lead to bad
informal policies.
C. Scrutinize officer motive? Though Whren doesn’t want to look at subjective motives.
D. Change personnel—hire officers/deploy officers who are not going to make those kinds of profiles.
E. Change substantive criminal law. Ie Morales—knocked down the law for being vague. Emphasis is
on officer discretion. Too much is a bad thing and tracks concerns w/ bad profiling. The inherent
limit is that perfectly clear and broad, it still lead to lots of discretion in enforcement thus the void-
for-vagueness idea won’t work.
F. Probs like poverty, racism etc can’t be eradicated by the law
G. If we’re worried about race-based rules, use equal protection clause for the remedy
4. Whren Rule: LEO’s subjective motivation for the stop (traffic stop) doesn’t matter as long as stop is
otherwise lawful
5. Whren v US
A. Facts: DC police had an internal policy to allow plainclothes officers to slide on issuing traffic
citations unless it’s an emergency. Plainclothes LEO pulled over Whren anyway for a traffic
violation. Whren argued that the stop was a pretext to investigate a more serious crime since he and
the other passenger were black.
B. Held: LEO may stop any individual if he has PC to believe that a traffic violation has been
committed, regardless of the LEO’s subjective motivations for the stop.
6. Whren and the Pretext Problem
A. Uniformed LEO
i. It’s possible that if LEO are clearly marked, then people will see them and are more likely to
follow the law b/c of increased risks of getting caught
ii. There could be a safety issue—if LEO are clearly in uniform, then people will see them and are
less likely to break the law or engage in dangerous behavior
B. Plainclothes LEO
i. If not in uniform, then maybe they are out there to go after more serious crimes
ii. Have to exercise more discretion
C. This shows that cts are not the only source of constraints on LEO’s. They have internal and external
constraints. As one of the only 24/7 service providers, they interact w/ the public continuously and
need to be perceived as effective and authoritative.
7. Can we make pretext discoverable and operational to courts?
A. Defendant in Whren offers the following test:
i. Take the reason that the officer made the stop
ii. And then double check for pretext by asking if a reasonable person would’ve stopped the motorist
for the same reason?
B. The prob is not the impracticality of finding a motive but rather, it’s very messy for cts to get involved
in and then decide what’s a legitimate motive and what isn’t
C. Possible solutions to pretext:
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i. Use equal protection clause analysis; then P’s will have to prove that they are receiving
disproportionate impx and that there’s a racial animus behind the policy
ii. Could hire more people of the target group’s ethnicity and then perhaps they won’t be as frequent
a target
8. Chicago v Morales
A. Facts: Chicago passed the gang loitering act which allowed LEO to order dispersal.
B. Held: law is void for vagueness.
9. Morales Reasoning and Political Power
A. Since the law applies to gang activity, it’s going to be applied selectively in the city in particular high-
crime areas—largely black and Hispanic.
B. Political support?
i. It’s quite possible that a law like this will get political support by voters who do not live in the
high-crime areas where the law will be most in effect.
ii. It’s possible that the law would be supported by the black/Hispanic residents of the areas where
the law would be most enforced but it’s not clear that these are people who vote at all.
iii. So it may be that these laws were passed by the politically powerful at the cost of the politically
weak.
iv. Geographic communities were, at best, divided on the utility of the gang loitering laws.
Special Needs
1. Special needs doctrine:

A. Govt has a special need for weaker 4thamendment constraints, beyond the normal need for effective
law enforcement. Govt practices that are special needs nonetheless satisfy a reasonableness balancing
test.
B. LEO, w/ permission of courts, can relax the PC, individualized suspicion or warrant requirement—
look to specific caselaw to know which requirements are relaxed
C. Reasonableness balancing test:
i. Strength of the
ii. govt interest
iii. Degree to which the practice advances that interest
iv. Nature of the liberty/privacy intrusion
2. General pattern from the cases:
A. Special kind of law enforcement need
B. But discretion is cabined in some way
3. Hypo: NYC Subway checkpoints
A. Are supposed to appear random to the passengers—ahead of time, subway systematically chooses a
stop and then stops every nth passenger and informs the passenger that if they want to ride the subway,
they have to submit to having their bag searched. LEO are only searching for explosives so they
don’t check small bags, purses or wallets.
B. Of course, if a passenger wants to evade this requirement, they can just board at another stop.
C. Is this permissible?
4. Summary of the Rules:
A. Edmond: the usual particularity requirement cannot be relaxed when the police seek to employ a
checkpoint for the ordinary purpose of law enforcement, drug interdiction
B. Sitz: upheld a MI highway sobriety checkpoint program—involved a brief, suspicionless stop of
motorists so that LEO could detect signs of intoxication. The gravity of the drunk driving program
and the magnitude of the state’s interest in getting drunk drivers off the road was key in the balancing
test.
C. Martinez-Fuerte balancing upheld immigration checkpoints 100 miles north of the Mexican border:
i. Formidable law enforcement probs posed by the northbound tide of illegals
ii. Difficulty in containing illegal immigration at the border
iii. Impracticality of the particularized study of a given car to discern whether it had illegals or not
iv. Relatively modest degree of intrusion entailed by the stops
D. Montoya:
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i. A momentary detention of a citizen by a border patrol official, so that the official can ask q’s or
look at ID is permissible w/o individualized suspicion
ii. If the traveler is detained for an extended period of time, then the seizure will require
individualized suspicion even if a search is never conducted.
E. IL v Lidster: checkpoint to ask passing motorists q’s about a recent hit-and-run doesn’t violate the 4th
as it’s less invasive and terrifying to motorists than when they themselves are the target of an
investigation
F. Administrative Searches
i. Camara/See
ai. Inspection programs aimed at city-wide compliance w/ admin codes like minimal physical stds
for property do not violate the 4thand are not unreasonable searches. The primary govt interest is
to promote public health and safety by detecting even unintentional development of hazardous
conditions and is not about a general criminal investigation.
5. Indianapolis v Edmond
A. Facts: City imposed a checkpoint on city roads to interdict unlawful drugs. At the stop, LEO informs
the driver that this is an drug interdiction, asks for license/registration, looks for impairment, conducts
an open-view examination of the inside of the vehicle from the outside and a drug dog sniffs the
exterior.
B. Held: The checkpoint violates the 4th.
C. Reasoning:
i. SC has never allowed checkpoints based on some general interest in crime control. All of the
previous checkpoints that were ok’ed had to do w/ highway safety. Here, the city is just looking
for drugs.
ii. SC says that unlike the sobriety checkpoints that were permissible in Sitz, here there is no
immediate and vehicle-based threat to life or limb.
6. IL v Lidster
A. Facts: Police set up a checkpoint a week after a hit-and-run had occurred. They briefly stopped
drivers and asked if they had seen anything happen a week earlier; also handed out flyers asking for
help and details about the incident. During D’s stop, LEO smelled alcohol on D’s breath and asked D
to step out and take a sobriety test. After failing the test, LEO arrested D for drunk driving. D
challenged the arrest arguing that the checkpoint was an unconstitutional seizure.
B. Held: An LEO checkpoint designed to elicit info about an earlier hit-and-run does not violate the 4th.
C. Reasoning:
i. These are “information stops” and only interfere minimally w/ liberty interests. Motorists are less
likely to be fearful or terrified and are more likely to be cooperative and react positively to aid
law enforcement.
ii. The law enforcement’s need to investigate the hit-and-run is genuine and the importance of
seeking the public’s cooperation is clear, especially in light of the fact that LEO can ask
pedestrians the same kinds of questions.
Use of Force
1. At c/l, the use of deadly force against a fleeing felon was permissible and is no doubt considered a
“seizure.”
2. The manner in which the stop or seizure is made matters and must be done reasonably under the 4th. The
use of deadly force as a categorical rule against all fleeing felons is unconstitutional. ~Garner
3. Garner/Graham Rule: use 4th Amendment reasonableness to determine whether a certain level of force
or method used to effectuate a seizure is permissible
4. Garner Deadly Force Rule: deadly force may be used to seize a fleeing felon when 1) it is necessary to
prevent escape AND 2) LEO has PC to believe that the suspect poses a significant threat of death or
physical injury to the officer or to others
5. TN v Garner
A. Facts: LEO responding to a call about a burglar see the suspect trying to get over a fence. LEO saw
no weapon, called out “halt, police” and then fearing elusion, LEO shot the suspect who later died.
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B. Held: The use of deadly force here to apprehend an apparently unarmed suspect who posed no
immediate physical threat was an unconstitutional seizure.
C. Reasoning:
i. 4th Amendment reasonableness takes into account how a seizure is effectuated.
ii. LEO may not seize an unarmed and not dangerous suspect by shooting him dead.
iii. Use of deadly force is permissible only if there’s PC of injury. A warning first is also a good idea.
iv. Police departments and fed agencies like the FBI are increasingly moving away from the c/l rule
and requiring the use of deadly force only in certain cases where there’s danger to life or limb.
a. Is a snapshot in time but tells you that the c/l trend can be bucked without sacrificing law
enforcement goals b/c it is feasible.
b. Is a way to crush outlier districts or jurisdictions who are experimenting with diff law
enforcement techniques or policies.
c. Prof: this is a rough and ready proxy for feasibility when the alternative is to have a judge
or politician decide.
6. Graham Rule: Measure the use of force or method to effectuate a seizure by its reasonableness under the
totality of the circumstances, as judged from the perspective of a reasonable officer at the scene, rather
than w/ hindsight vision:
A. Facts and circumstances of each case
B. Severity of the crime at issue
C. Whether the suspect poses an immediate threat
D. Whether suspect is actively resisting arrest or attempting to escape
7. Graham v Connor
A. Facts: LEO see Graham go into a store and come out in a hurry. Thinking that he may have robbed
the store, LEO stop Graham and make him get out of the car. He tells them that he’s feeling the onset
of an insulin attack and wanted OJ. Also tells LEO to check his wallet for his diabetic card. LEO
ignore this and rough him up while they wait to find out if anything actually happened at the store.
Graham suffered some major injuries.
B. Held: The 4thAmendment’s reasonableness inquiry governs the manner in which all seizures take
place. Case is remanded to determine if LEO’s conduct was reasonable.
C. Reasoning:
i. Rule: determining whether the force used to effect a particular seizure is “reasonable” under the
4th require a balancing of “the nature and quality of the intrusion on the individual’s 4th A
interests.”
ii. The right to make an investigatory stop or arrest necessarily carries the right to use some degree
of physical coercion or threat to effect it.
iii. Rule: Looking at it from the perspective of a reasonable officer at the scene means that the
reasonableness decision must allow for circumstances that are tense, uncertain and rapidly
evolving esp since LEO often have to make split-second decisions.
iv. Rule: the test is whether the LEO acted objectively reasonable, w/o regard to their underlying
motivation or intent
8. Scott v Harris
A. Facts: Suspect was stopped for speeding but instead lead cops through a high speed chase. LEO
rammed suspect’s car from behind. Suspect landed in a ditch and was paralyzed. His family sued
arguing that this was an unreasonable use of deadly force.
B. Held: SC analyzed this using the multi-factor Garner test for reasonablenessand determined that even
though the use of force resulted in harm to the suspect, the use of force here was reasonable. SC
refused to term this use of force as “deadly force.”
C. Reasoning:
i. The act of chasing the suspect is what creates the danger. But to term this “deadly force” almost
assuredly would have meant that the cop would have lost. SC is worried that a decision against
the cop would result in perverse incentivizes—motorists could engage in a high speed chase
simply to get away b/c cops would back off from chase and “creating” the danger.
ii. Garner may get loosened up in the future b/c SC refused to call this “deadly force.”
(D) LIMITS ON THE EXCLUSIONARY REMEDY

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Good Faith
1. The 4thAmendment doesn’t explicitly prescribe the exclusionary rule. The assumption is that since the
4thprohibits unreasonable searches and seizures, if that happens, there should be some remedy. The
division is over what should the proper remedy be.
A. Was there a 4th Amendment violation?
B. If so, what should the proper remedy be?
2. Idea: the use of dirty evidence taints the judicial proceedings and the court and judge then become a party
to the constitutional harm. But the Leon court was not worried about this aspect—the violation is
complete at the time of the unreasonable search or seizure, thus the goal has to be to deter violationsfrom
occurring at all. The question is: do the benefits of the exclusionary rule thus outweigh the costs?
3. Leon Good Faith Exception: If LEO, acting in good faith, procures an objectively reasonable search
warrant from a judge and search, and then later, PC for the search warrant is found not to have existed (ie
judge reached the wrong PC conclusion), the LEO’s good faith reliance on the warrant means that the
evidence should not be excluded. But if reasonable people would agree that there is no PC to justify the
SW, then the officer will be in error for relying on that warrant.
4. Incentives
A. LEO: the exclusionary rule acts to deter LEO from searching w/o PC (assuming that LEO care about
conviction rates and trials)
B. Judges: will not be deterred by the exclusionary rule since they have no personal stake in trial
outcomes. They will be deterred by “professional incentives” ie not being overruled or discussed
unfavorably in judicial opinions.
5. Hypo: Should the Leon good faith exception exist for invasions that w/ neither a warrant nor PC?
A. If we want to incentivize LEO to get warrants, then we shouldn’t allow GF for cases where LEO
thought they had objective reasonable grounds to enter
B. If LEO have to go through the paperwork and get the warrant, then they have to come up with the
story first, if GF extended to warrantless searches that later turned out to lack PC, then LEO might
just backfill their story to get them all the way up to PC
6. Herring v US: isolated and attenuated negligence in not updating a police database for AW’s so Herring
appeared to have an outstanding warrant for his arrest. But SC said that this was not grounds to exclude
evidence from a search incident to arrest. Herring wanted the evidence of contraband taken from the
SITA excluded. SC said no even though LEOwas responsible for this arrest database, it’s attenuated
enough from the conduct of the arresting officer so the minor advance is that now, you’ve got one set of
officers objectively reasonably relying on another set of officers. And once again, LEO did try to get a
warrant—they were trying to operate w/in the warrant system. This case is seen as chipping away at the
ER and Stevens cites Cardozo’s quote that evidence of illegality is tossed out b/c of the constable’s
blunder.
7. Not all states follow the good faith exception, thus in a suppression motion, it’s not a defense for LEO to
argue good faith and keep the evidence in.
Standing to Argue for Exclusionary Rule

1. History of the use of standing:
A. Old approach: any “target” of LEO has “standing”  difficult to determine who the LEO was
subjectively targeting
B. Carter/Rakas Rule: the person seeking suppression of the evidence must’ve been searched or seized;
that goes back to the Katz issue of whether there was a reasonable expectation of privacy; if not, not a
4th A “search”
2. Carter “Guests”-some social component, more than merely conducting a txn; previous contacts
3. Olson Rule: some social guests might have a legit expectation of privacy, ie social guests
4. Jones Rule: merely having consent to be in someone’s home ≠ legit expectation of privacy
5. MN v Carter
A. Facts: LEO observes through garden apartment window blind’s gap what appears to be 2 men
bagging drugs. When the two men walk out to their car, LEO stopped them and searched their car
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and found drugs. LEO also arrest the female tenant of the apt. Pursuant to a SW, LEO search the apt
and find drugs. LEO later learn that the 2 men, who were here for the first time, used the apt to bag
drugs in exchange for giving 1/8 an ounce of cocaine to the female tenant. She is not a party to this
appeal. 2 men moved to suppress the evidence from the apt arguing that the peering through the
window was an unreasonable search.
B. Held: The two men had no reasonable expectation to privacy, were not social guests but rather, just
there for the first time to conduct business. Thus, the first prong of Katz isn’t satisfied so you don’t
get to the question of whether this was even a search or not—it’s not.
C. Reasoning:
i. MN v Olson: in some circumstances, a person may have a legit expectation of privacy in someone
else’s home, ie overnight guests
ii. Rakas v IL: rejected the idea of using standing to determine if 4th’s protections apply; the test is
whether the person claiming protection had a reasonable expectation of privacy in the invaded
place
iii. Jones v US: a guest in a home may claim 4th protections but one who is merely present w/ the
consent of the owner may not
iv. Key: Kennedy’s concurrence: social guests may have a right to privacy but the 2 men here
weren’t social guests; they were here to conduct a txn and their only connection to the owner was
this biz txn
D. Ginsburg dissent: the homeowner has a right to share her home and associations w/ whomever she
chooses, regardless of the length or nature of the visit. The majority runs the risk of LEO using
temporary visitors in a house to find incriminating evidence.
Fruits of the Poisonous Tree to Argue Exclusion

1. In many cases, a D will challenge the evidence derived from an initial illegal search.
2. Standing must be met: D can successfully challenge tainted derivative evidence only if he has standing
to object to the original but illegal search.
3. FotPT: but in some cases, the link b/t the initial illegal search and the evidence ultimately obtained is so
attenuated that the evidence can no longer be considered “dirty.” W/ attenuation, the deterrent effect of
the exclusionary rule is reduced so much so that the cost of excluding reliable evidence outweighs the
minimal benefit of deterrence.
A. Only suppress evidence obtained as a result of a 4th violation.
B. Suppressed evidence requires but-for causation. But for the violation, this evidence would not have
been found.
C. Proximate cause: the violation is the PC of finding the evidence that should be suppressed.
4. LEO’s arguments:
A. Evidence would’ve been discovered inevitably
B. Some other source would have lead to the evidence
C. Attenuation (Wong Sun)
5. Wong Sun v US
A. Facts:
i. Without PC, LEO break into Toy’s apt and arrest him in bedroom but don’t find any drugs. Toy
makes a statement implicating Yee in sale of drugs. [Illegal]
ii. LEO go to Yee, who immediately surrenders and hands over drugs. Yee makes a statement
implicating Toy and Wong Sun; says they sold him the drugs. [Legal]
iii. LEO then illegally arrests Wong Sun. [Illegal]
iv. Wong Sun and Toywere arraigned and released pending trial. Toy gave an unsigned confession.
v. Several days later, Wong Sun came back to the police station, was Mirandized, and gave an
unsigned confession.
B. Holding:
i. Toy:
a. Toy’s statement in the bedroom: is excluded b/c entry/search into home was illegal
b. Yee’s drugs: Toy’s statement are the proximate cause of finding drugs, so the drugs are the
illegal fruits and are excluded; drugs can’t be used against Toy
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c. Toy’s unsigned confession: ?

d. Criminal confessions and admissions of guilt require corroboration. WS’ statement did not
mention Toy so it looks like the confession can’t get in.
ii. Wong Sun:
a. The drugs surrendered by Yee can be used against Wong Sun; WS has no standing to object
b/c he has no claim of privacy to Toy’s apt (this is Carter) that led to Yee’s drugs
b. WS’ confession cannot be excluded; b/c WS voluntarily came back to the police station to
give a statement and was properly warned about his right to silence/counsel, the confession
was not “tainted” by the earlier illegal search of Toy’s apt.
c. Since crim confessions require corroboration and Toy’s statement doesn’t implicate WS, the
confession isn’t really useful. Thus the only source of corroboration is the drugs.
d. Since it’s not clear that the drugs could be enough corroboration, Sun gets a new trial.
Impeachment
The use of evidence taken in violation of the 4th can still be used to impeach the suspect at trial.
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PART II: POLICE INTERROGATION
(A) Miranda and Its Alternatives
1- The Path to Miranda

1. Relevant constitutional text
A. 5th: due process; nor shall anyone be compelled to be a witness against himself –this prohibits the
govt from compelling individuals to provide incriminating testimony
B. 6th: in all crim prosecutions, the accused has the right to be informed of the nature and causes of the
accusation and have the assistance of counsel for his defense
2. Concerns about interrogations and confessions:
D. Accuracy
E. Methods, ie police brutality (that affect accuracy)
F. Democratic values, ie “white mob is waiting for you”
G. Compelled confessions as a violation of autonomy or free will
H. Fair play: certain police tactics are unfair even if they result in accurate confessions
I. Meaningful choice
3. Doctrinal History:
A. Early cases focused on compelled testimony at trial. Later, inquiry focused on pre-trial confessions
B. Bram v US: early test for voluntariness; focused on the setting and LEO’s promise that things would
go better if suspect cooperated (still good law)
C. Watts v US: (1949)-Series of interrogations over 5 days resulting in a confession; SC ruled that the
confession wasn’t truly voluntary if it’s the product of sustained pressure by the police and does not
result from free choice—the “confession” here was coerced; to use it in court would offend
procedural stds of due process (still good law)
D. The court reversed convictions based on involuntary confessions w/ growing frequency in the 1950’s
and 1960’s.
E. But the fact-finding inquiry of whether a confession was truly voluntary or not was difficult. SC was
distrustful and skeptical that state courts would get it right. By the early 1960’s, how to determine
whether a confession was voluntary was very unclear.
4. Miranda Rule
A. Warning Rules: Absolute prerequisites to custodial interrogation
i. Right to remain silent
ii. Anything suspect says can and will be used against him in court
iii. Right to consult a lawyer
iv. If indigent, a lawyer will be appointed
B. Waiver Std: If LEO obtain a confession through custodial interrogation, state bears the “heavy
burden” of proving that a suspect voluntarily, knowingly and intelligently waived his right to silence
and to counsel.
C. Suspect can invoke these rights at any time; if LEO nonetheless presses, any subsequent statements
can be excluded
D. Without the warnings, suspect’s statements are inadmissible
E. Without voluntary, knowing and intelligent waiver, suspect’s statements are inadmissible
F. Not giving Miranda warnings is not a constitutional violation; the violation occurs if the prosecution
tries to introduce statements made while suspect is in custody and unMirandized
5. Miranda v AZ
A. Held: a confession made during a custodial interrogation is inadmissible unless the suspect receives
four “warnings” describing his rights and then makes a knowing and voluntary waiver of these rights
before confessing.
B. Reasoning:
i. Miranda warnings are necessary to protect a suspect’s 5thAmendment right to remain silent from
the inherently coercive pressures of custodial interrogation. The balance of power b/t the LEO
(State) and the suspect is inherently skewed.
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ii. Techniques of physical abuse and psychologically-oriented techniques as well as isolation, good
cop-bad cop routines and other methods to overwhelm worked to intimidate suspects, thus a
judicial safeguard was necessary.
iii. In fact, the very ordeal of custodial interrogation runs the risk of compulsion.
iv. The principles embodied in the privilege apply equally to the compulsion of testifying
unwillingly against oneself at trial as well as to the “informal compulsion” of custodial
interrogation by the police.
v. The legislature can devise other equally effective ways of protecting the privilege, but in their
absence, Miranda warnings must be given
2- “Custody”
1. “Custody:” formal arrest or “restraint on freedom of movement of the degree associated w/ arrest”
2. Custody = totality of the circumstances std
3. Stansbury Objective Test: the test for custody under Mirandais an objective one—would a reasonable
person feel free to leave? The LEO’s subjective state of mind doesn’t matter; what matters is whether the
LEO conveys the perception that the suspect is or is not free to leave
4. Yes, “custody:”
A. Miranda: custodial interrogation or otherwise deprived of his freedom of action in any significant
way
B. Orozco: awakened and questioned in suspect’s bedroom at 4am; one LEO testified that the suspect
was not free to go b/c he was under arrest even though there was no evidence that the defendant was
so informed. Thus absent Miranda warnings, defendant’s statements made in the bedroom were held
to be inadmissible.
C. Police interrogation room, absent consent?
i. Purpose of the police investigation
ii. Place and length of interrogation
iii. Suspect’s awareness of his freedom to leave
iv. Actual freedom from restraint
v. Coercive strategies
vi. Similarity of the setting to the “police dominated” atmosphere of the police station
5. No “custody:”
A. Berkemer: roadside detention of a motorist pursuant to a traffic stop is not “custody;” the seizure was
a Terrystop, not an arrest. While the motorist might not feel free to leave, a traffic stop is not a
“police-dominated” pressurized situation in the same way as a post-arrest interrogation. But a traffic
stop where police engage in coercive activity associated w/ formal arrest will trigger Miranda
protections
B. Terry Stops: usually brief, temporary, conducted in the public eye; the pressures of an investigative
stop don’t approach the “inherent coercion” of post-arrest interrogation
C. MN v Murphy: self-incriminating statements made in probation officer’s office ≠ custody
i. Interview w/ probation officer doesn’t convey message that defendant has no choice but to submit
ii. Not an “unfamiliar atmosphere” in which to overbear the defendant’s will
iii. No compulsion or sense that interview would continue until defendant confessed
3- “Interrogation”
1. RI v Innis: express questioning or its functional equivalent; includes words or actions that police should
have known were reasonably likely to elicit an incriminating response from an avg suspect
A. Held: Two officers were talking about a weapon they were looking for within arrestee’s earshot;
arrestee interrupted them and offered to show them where the shotgun was located. SC found that the
statements about the gun’s location were properly admitted as they were not the product of any
interrogation w/in the meaning of Miranda.
B. Innis Rule:is the police activity reasonably likely to elicit an incriminating response? LEO intent
matters but focus on suspect’s perceptions
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2. Perkins Rule on Speaking to Undercover Cops: when the suspect is unaware that he is speaking to a
cop, Mirandawarnings are not required. Thus undercover agents posing as fellow prisoners may elicit
incriminating statements from an incarcerated suspect w/o giving Mirandawarnings.
A. Rationale: If suspect doesn’t know that he’s talking to LEO, then the “coercive atmosphere” of police
interrogation is missing.
B. Dissent: this might encourage undercover activity to elicit incriminating statements.
4- Waivers
1. Miranda: must be voluntary, knowing and intelligent
2. Moran: no waiver can be considered knowing and intelligent in the absence of Miranda warnings
A. Voluntary = the product of a free and deliberate choice rather than intimidation, coercion or deception
B. Full Awareness = of the right being abandoned and the consequences of abandoning it
C. Sufficiency: suspect need not be informed that an attorney retained by his sis is asking to be present
during his interrogation; since the suspect retains the right to waiver, after Miranda warnings are
given, he has all the info he needs to produce a valid waiver
3. Butler: an express written or oral waiver of Miranda rights is not an absolute requirement for a valid
waiver; waiver cannot be presumed from silence but silenced coupled w/ a course of conduct consistent
w/ abandonment of Miranda rights would support a finding of waiver
4. Moran v Burbine
A. Waiver: under the totality of the circumstances test, LEO have to prove both an uncoerced choice +
requisite level of comprehension for the ct to conclude that Miranda rights were waived
B. Held: the Morandefendant claimed a need to know that his lawyer had contacted the police and
sought contact with him. The police either recklessly or intentionally withheld this information but
the SC held that events occurring outside of the presence of the suspect and entirely unknown to him
have no bearing on his capacity to relinquish a constitutional right. The Miranda warnings provide
all the info that law enforcement need to convey.
5. Oregon v Elstad
A. A waiver must be voluntary.
B. Elstad Rule: For a defendant to argue that his statements should be excluded because they were
involuntarily procured, he has to show that coercive police conduct caused his waiver to be the
product of intimidation, coercion or deception under the Morantest. The defendant has to show that
his will was overborne and that his capacity for self-determination was critically impaired.
5- Warnings
1. If Miranda warnings are not given, waiver is impossible and the presumption of police coercion is
irrebuttable.
2. Thus LEO must know what the Miranda warnings are.
3. Miranda does not require that suspects be given lawyers immediately, only that if suspects invoke their
right to counsel, the questioning must stop immediately; counsel will be appointed when they go to court.
6- Waiver After Invoking the Right to Counsel

1. What happens when the suspect receives the warnings, invokes his right to silence or to counsel and then
changes his mind and decides to speak up?
2. “Cooling Off” Period
A. Invocation of right to silencemust be “scrupulously honored.” Thus continuing interrogation shortly
after the right to silence has been invoked is not “scrupulously honoring.”
B. Mosley Right to Silence Rule: But 2 hours after invocation, when diff officer gives another, fresh
Miranda warning and suspect then makes a statement, that statement can be a knowing and voluntary
waiver.
3. Right to Silence Must Be Clearly Invoked
A. Davis: the right to silence/counsel must be clearly and unambiguously invoked; if suspect’s statement
carries any doubt as to whether he’s invoked his right to silence/counsel, the questioning may
continue
4. Waiver After Invoking the Right to Counsel and Suspect Initiation
38
A. Edwards Rule: if suspect invokes the right to counsel(not the right to silence), then police cannot re-
initiate interrogating him. Either the suspect must re-establish communication w/ the police first, in
order to constitute valid waiver, or his lawyer must show up
B. Distinguished from Mosely: a suspect can change his own mind after he invokes his right to silence;
but initially invoking the right to counsel is diff b/c that indicates that he feels outmatched and is
unwilling to deal w/ the police on his own—in that situation, it’s unlikely that he’d unilaterally
change his mind thus right to counsel has stricter procedural safeguards unless the suspect initiates the
change of heart
C. Edwards v AZ
i. Facts: suspect invoked his right to counsel by saying “I want an attorney before making a deal.”
Police ceased interrogating him. In the morning, police gave suspect new Mirandawarnings,
resumed interrogating him and obtained a confession. There was no showing that the suspect did
not understand his rights or that his will was overborne.
ii. Held: The waiver is invalid b/c of the police-initiated re-interrogation; the confession was
inadmissible.
iii. Rule: Police cannot obtain a valid waiver after suspect has invoked his right to counsel unless the
suspect initiates further communication w/ the police or counsel is provided.
5. What constitutes suspect initiation?
A. Wyrick: After consulting w/ counsel, suspect requesteda lie detector test; after this request, it was
proper for the examiner to seek a waiver of rights, which suspect signed, indicating that he did not
want counsel during the exam and during post-exam questions. Thus the statements made during
these periods were admissible.
B. Bradshaw
i. Defendant invoked the right to counsel; en route to the jail, suspect asked LEO “well, what is
going to happen to me now?” LEO responded by telling the suspect that he didn’t have to talk to
him, that he had asked for an attorney and that the LEO didn’t want to talk to him unless he
desired it. Suspect said he understood and then confessed.
ii. Plurality: suspect’s statement to the LEO constituted initiation and valid waiver thus his
statements are admissible.
iii. The defendant’s inquiry was deemed to evince a generalized discussion of the investigation, as
opposed to a request for a drink of a water.
iv. Rule: Under the totality of the circumstances test for waiver, this was valid waiver since D
initiated, was given fresh warnings, understood the warnings and there was no evidence of
coercion or inducement to talk.
7- Miranda’s Constitutional Status?

1. Miranda’s Dissenters
A. Clark
i. Ask whether the Due Process clause was violated by the procurement of the confession.
ii. This would be a TotC test and the failure to give Miranda warnings is only one relevant factor.
iii. The majority went too far, too fast in the absence of empirical data about the practical operation
of Miranda.
B. Harlan
i. The majority should not have extended 5thA compulsion doctrine into the interrogation process.
The DPC of the 5th should be the sole standard for judging the voluntariness of confessions.
There were no 5th/6th A precedents to support the majority’s holding.
ii. DPC is the best std:
a. Already incorporated a “protective concern” for suspects
b. The 5th A precedents don’t condemn all pressure to self-incriminate and they shouldn’t
prohibit the mild pressure that the DPC doctrine would have permitted
c. No precedent requires “precise knowledge of one’s rights” as a pre-requisite to the loss of 5th
A protections
iii. The rules won’t deter blatant coercion b/c LEO will just lie about warnings and waivers
iv. The rules will result in the marked loss of useful confessions, which are key to crime control
39
C. White
i. The majority doesn’t make sense b/c spontaneous q’s could be considered voluntary but
confessions in response to a single question could be considered “compelled.”
ii. Miranda warnings nor the presence of counsel could make coercion disappear
iii. Waiver could be considered voluntary under Miranda, but presumptively coercive w/o Miranda,
yet both occur in the same “inherently coercive” setting of interrogation.
iv. To prove voluntary and knowing waiver is too high a burden to place on the state.
2. Mirandalanguage suggests that its safeguards are not constitutionally required. There’s obviously no
language mirroring the Mirandalanguage anywhere in the Constitution. And Congress and state
legislatures can develop their own safeguards consistent w/ Miranda. In some post-Miranda cases, the
court referred to the “non-constitutional” status of Miranda to justify some doctrinal restrictions.
3. Dickerson v US
A. Facts: After Miranda, Congress passed Sec 3501 which provided that voluntary confessions should be
admissible. It further stated that there was no absolute requirement that the defendant be informed of
his right to silence and to counsel, noting that these were factors in determining voluntariness but
were not dispositive. Sec 3501 clearly contradicted Miranda.
B. Held: Miranda is a constitutional decision of the Supreme Court, not a rule of evidence or procedure
or part of the fed common law that Congress can override.
C. Reasoning:
i. Miranda applies to state courts, not just federal.
ii. Miranda is about the 5th Amendment and how to protect a suspect’s right to not self-incriminate.
iii. The fact that legislatures are free to devise other rules, consistent w/ Miranda, to effectuate the
privilege against self-incrimination just means that the precise language need not be followed.
iv. The fact that there are exceptions like Quarles is just part of the idea that no constitutional law is
immutable.
v. Under stare decisis, there is no doctrinal reason to overrule Miranda, thus it stays.
8- Limits on Miranda’s Exclusionary Rule
1. Miranda violations do not give rise to a Sec 1983 c/a

A. Chavez v Martinez
i. Where Miranda-defective statement was made but the statement was never introduced at trial,
there was no 5th Amendment violation b/c the 5th is pegged to trial.
ii. Chavez Rule: Thus with no 5th A violation, there’s no Sec 1983 cause of action.
2. Public Safety Exception
A. Quarles Rule: Police questioning about a weapon or other public safety threat of a suspect before
Mirandizing him is permissible under the public safety exception
3. Impeachment
A. Harris Rule: Miranda-defective statements can’t be admitted as evidence but can be used to impeach
the defendant as prior inconsistent statements
B. Doyle Rule: when the govt induces silence, ie by Mirandizing, the silence cannot be used to impeach;
can’t punish the suspect for invoking a right
C. Jenkins Rule: if govt doesn’t induce the silence, then silence can be used to impeach
D. Harris v NY
i. Facts: At trial, defendant testified that he sold baking powder in a scam to an undercover agent.
But in his post-arrest, unMirandizedstatement to the police, he claimed to have acted for the agent
in buying drugs from others. This unMirandized statement was not introduced as evidence at trial
but the prosecution did bring it in to impeach the D.
ii. Held: Miranda-defective statements can be used to impeach the defendant.
E. Doyle v OH
i. Facts: At trial, defendant testified that he had been framed by someone else in a drug sale. (He
failed to mention this to the police when he was arrested and Mirandized.) The prosecution
sought to impeach w/ their post-arrest silence arguing that it was inconsistent to remain silent at
that point since they had an excuse for their conduct.
40
ii. Held: If Miranda is to have any meaning, then can’t punish a suspect for exercising his right to
remain silent.
iii. Doyle’s restriction in impeachment only applies when the govt induces silence, ie by
Mirandizing.
F. Jenkins v Anderson
i. Facts: at trial, the defendant claimed self-defense to a murder charge. The prosecution sought to
impeach him by asking him why he failed to report the homicide to anyone for two weeks before
turning himself in.
ii. Held: The use of pre-arrest silence to impeach a defendant doesn’t violate the 5th or the Doyle rule
4. Ineffective Midstream Warnings
A. OR v Elstad
i. Facts: Police visit Elstad’s house asking for info about a burglary. A single comment by an
officer prompted an unMirandizedElstad to admit to being at the burglary. It’s not clear that this
was an interrogation or even custody. Police take Elstad down to the station, given him his
Miranda rights and he then confesses.
ii. Held: The station confession is admissible b/c the warnings given later at the station were
“adequate” since the station house interrogation was a “new and distinct experience” for Elstad.
iii. Reasoning:
a. The careful Mirandizing that occurred later cured the defect of the first statement, thus
cleaning the way for the second statement to be admissible.
b. Elstad could argue that his first statement was involuntary but it will be hard to argue that
given the facts. (If the first statement is voluntary, then no poisonous tree)
c. If Elstad’s first statement truly was involuntary, then under the fruits of the poisonous tree
doctrine, the second statement can be excluded.
d. The poisonous tree doctrine only works when the statement giving rise to the fruits is
involuntary or coerced.
B. MO v Seibert
i. Facts: Police used a technique where they would ask questions w/o Mirandizing and then after
they had gotten some useful info, they would Mirandize and essentially get the suspect to waive
his rights and refer back to the previous incriminating statements.
ii. Held: The “question first, warn second” is an attempt to circumvent Miranda.
iii. Plurality Test: Thus in such cases, a court has to determine if the warnings given at stage 2
effectively advise the suspect that he has a real choice to stop talking even though he’s already let
the cat out of the bag.
a. Thus if the midstream warning is inadequate, then the post-warning confession is excludable
(and you don’t get to the Elstad question of whether there was valid waiver or not).
b. But if the midstream warning is adequate, then LEO will have to prove valid waiver and
suspect will argue involuntariness.
iv. Breyer Concurrence: If the failure to warn at stage 1 was intentional, then exclude statements
made at stage 2. But if the failure to warn at stage 1 was in good faith, then don’t exclude
statements made at stage 2.
v. Kennedy concurring in the judgment:
a. If Miranda was intentionally violated at stage 1, then exclude the stage 2 statements whose
substance is related to the stage 1 statements.
b. But if “curative steps” are taken at stage 2 to ensure that a reasonable person in the suspect’s
position would understand the import of the Miranda warning, then it’s ok to include the
stage 2 statements.
5. When Miranda violations lead to other evidence/Poisonous Tree Doctrine?
A. Rule: Miranda-defective statements are presumed to be coerced and are thus excluded at trial.
B. Rule: Miranda-defective statements made at Stage 1 can be remedied so that Mirandized, uncoerced
statements at Stage 2 can be admitted at trial. (Elstad/Seibert)
C. Rule: Uncoerced Miranda-defective statements that lead to physical evidence statement excluded,
physical evidence admitted (Patane)
41
D. Rule: Coerced statements that lead to physical evidence  Poisonous Tree, statements and physical
evidence are excluded (Patane/Elstad Hypo)
E. Elstad
i. The failure to warn before obtaining an initial confession does not render a second voluntary
(uncoerced) confession, obtained after proper Mirandizing the inadmissible fruits of the initial
Miranda violation.
ii. Remember the Elstad Court said that police can remedy an initial failure to warn by subsequently
giving the warning midstream.
iii. The Siebert Court explains how to evaluate the validity of the midstream warning; in some
circumstances, it’s not valid.
F. US v Patane-physical evidence
i. Facts: Suspect arrested for felony gun possession; is given a truncated Mirandawarning (b/c he
interrupts LEO and says he “knows” his rights). LEO asks where’s the gun and after dodging the
q for a min, he gives its location + consent for LEO to go inside the house and seize it. At trial,
suspect argued that his unMirandized statements were inadmissible and since the physical
evidence was the fruit of a Miranda violation, they too should be inadmissible.
ii. Held: The exclusion of unwarned statements is a complete and sufficient remedy for a Miranda
violation but excluding physical evidence (as long as it’s not coercively procured) is not a
remedy.
iii. Plurality reasoning:
a. If a suspect’s unwarned but uncoerced statement leads to physical evidence, that physical
evidence need not be excluded.
b. Physical evidence has important probative value and reliability and excluding it is not going
to further the Miranda goal of deterring suspect compulsion.
(B) INTERROGATION AND THE 6TH AMENDMENT RIGHT TO COUNSEL
Deliberate Elicitation and the Adversarial Proceeding

1. 6th Right to Counsel: in all crim prosecutions, the accused shall enjoy the right to … have the assistance of
counsel for his defense (made applicable to the states through the 14th)
2. Rule: the 6th attaches at arraignment, as soon as formal proceedings have begun
3. Massiah Post-Indictment Rule: all indicted defendants posses a 6th A to consult w/ counsel when police
are deliberately trying to obtain information from them; if the 6th A is to have any value, it must apply to
both direct and surreptitious interrogations by LEO
4. Massiah v US
A. Facts: D was arrested, arraigned, indicted, retained a lawyer and was released on bail along w/
Colson. Colson strikes deal w/ LEO and agrees to cooperate. LEO wires Colson; Colson then has a
conversation w/ D in his care while LEO overhear. D makes incriminating statements which are
introduced at trial.
B. Held: D’s 6th A rights were violated b/c govt deliberately elicited incriminating statements after
indictment and in the absence of D’s lawyer
C. Compared to Miranda:
i. Miranda interrogation: words or actions that are likely to elicit incriminating response (Innis)
ii. Massiah interrogation: deliberate elicitation; takes into account LEO intent
iii. Miranda custody: formal arrest or restraint on freedom of movement
iv. Massiah: right to counsel attaches at arraignment
5. Escobedo v IL
A. Facts: D was arrested but not charged or indictedand had invoked his right to counsel. LEO refused
to allow his lawyer to see D. D was interrogated and made self-incriminating statements.
B. Held: D’s 6th A rights were violated, but very narrow holding:
i. Investigation had focused on one individual
ii. Who was in custody and being interrogated
iii. Asked for lawyer and was denied
iv. No warning of his right to remain silent
42
v. Then 6th is violated.

C. Reasoning:
i. This case predates Miranda but seemed to extend a 6th A right to counsel to an unindicted suspect
in custody.
ii. The reliance on Massiah is sketchy b/c D had not yet been indicted or charged, thus he’s not
really an “accused.”
iii. But does signify the court’s readiness to be suspicious of LEO who deny an asserted right to
counsel.
6. Miranda and Escobedo
A. If Escobedo created a pre-indictment 6th A right to counsel, Miranda says no.
B. If Escobedo created a pre-indictment 5th A right to counsel, it’s supported by Miranda.
C. Miranda subsumes Escobedo.
7. Miranda and Brewer-Massiah
A. Miranda: protects against the inherent pressure and compulsion of a police interrogation; applies to
any custodial interrogation
B. Brewer-Massiah: protects against LEO bad faith or attempt to circumvent D’s invocation of a lawyer
by deliberately eliciting incriminating statements
8. ME v Moulton: 6thA attaches to specific offenses only. If 6th attaches to Crime 1, it doesn’t automatically
attach to investigation of Crime 2.
9. Brewer v Williams
A. Facts: LEO, knowing that D has been arraigned, repeatedly been Mirandized and has retained
lawyers, gives him a “Christian burial speech” during a long car ride deliberately designed to elicit
incriminating statements. D makes self-incriminating statements and leads the LEO to the victim.
B. Held: the LEO’s deliberately elicited self-incriminating statements in violation of the 6th. There was
no waiver of D’s right to counsel.
C. Reasoning:
i. There was no waiver of D’s right to counsel:
a. LEO and D knew that D had retained lawyers at both cities and had been relying on them
prior to the car ride
b. D made clear to the LEO that he would tell them everything when he got to the destination
city. So when D is making it clear that he is relying on his attorneys, the court is going to
require a much stronger showing of waiver.
ii. D gets a new trial.
a. His statements are out.
b. But the physical body is probably in. LEO still has ability to argue for inevitable discovery
or alternate source points to the victim.
iii. On remand the body gets in and D is convicted.
Invocation and Waiver

1. Brewer/Patterson Waiver Test: govt has the burden of proof that the waiver was voluntary, knowing and
intelligent
2. Jackson/Edwards Rule: if defendant invoke 6thA right to counsel, he can only waive that right if he
initiates communication w/ LEO. If LEO initiate first, it’s still a violation even if there’s evidence of real
waiver. D must initiate communication (and therefore waive) first.
3. Rationale:
A. The post-arraignment right to counsel (6th A) should get at least as much protection as Mirandain
custodial interrogations. In both cases, the D has manifested an unwillingness to deal w/ the police.
B. But once formal proceedings are underway and the 6th attaches, LEO are prohibited from certain
investigatory techniques (like a Perkins-style interrogation) that might’ve been permissible pre-
arraignment.
4. MI v Jackson
A. Facts: At arraignment, D asked for counsel. After arraignment, LEO approached D, Mirandized him,
obtained voluntary waivers and got incriminating statements.
43
B. Held: The purported waivers of the 6th A right to counsel were invalid b/c D did not “initiate contact”
with LEO after invoking his rights, regardless of evidence of waiver. Thus the Edwards brightline
initiation rule for Miranda waivers also applies to 6th A right to counsel invocations.
5. McNeil Rule: D’s request for assistance of counsel before a judge only attaches to the offense with which
he was charged. LEO is free to seek waiver of Miranda rights for crimes unrelated to that charge.
6. McNeil v WI
A. Facts: D charged w/ robbery; requested counsel at his initial appearance and got it. Later that night,
LEO Mirandized him and got a valid waiver + incriminating statements concerning an investigation
for attempted murder and burglary.
B. Held: the 6th only attached to the robbery charge; the Mirandizing and waiver for the murder/burglary
charges are valid.
C. If the Jackson-EdwardsRule applied here, then LEO would lose out on the statements regarding the
murder/burglary charge b/c LEO initiated communication. This makes sense b/c the 6thattaches to
specific offenses and is triggered upon formal proceedings. No formal proceedings had yet begun for
the murder/burglary. Otherwise, this would hamper LEO efforts at investigating separate crimes.
44

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Criminal Procedure, 2009

PART I: SEARCH AND SEIZURE

(A) ENFORCING CONSTRAINTS ON THE STATE

1. THE EXCLUSIONARY RULE AND MAPPS

Justifications and Criticisms of the Exclusionary Rule

2. ALTERNATIVES TO THE EXCLUSIONARY RULE

• Damages and §1983 Liability

• Bivens Actions: akin to Sec 1983 liability for fed officers

• So does Mapp start to look better?

• Prosecutions for willful rights deprivations

• Admin regulations-employer based sanctions; punishments handled internally; there’s a question of

• Political control-mayors, legislatures, civilian review boards etc.

(B) TRIGGERING 4 AMENDMENT CONSTRAINTS

THIS IS ALL ABOUT WHETHER THE 4 TH

1. “THE PEOPLE” AND VERDUGO-URQUIDEZ

2. “SEARCH,” THE KATZ TEST AND “PRIVACY”

THE KATZ TEST

INTERESTS PROTECTED BY THE 4 AFTER KATZ

LEGITIMACY OF THE PRIVACY EXPECTATION IN TERMS OF PUBLIC ACCESS THEORY

Legitimacy of the Privacy Expectation in Terms of Sensory-Enhancing Technology

• Two-part inquiry: Was there a seizure? If so, was it unreasonable?

(C) THE CONTENT OF 4 AMENDMENT CONSTRAINTS

7. Particularity Requirement for PC

The Process to Get a Warrant

Executing the Warrant

Warrant Not Required:

-1- Exigent Circumstances

-2- Plain View Doctrine

-3- Special Case: The Automobile Exception

a. LEO can’t search w/o warrant. Suitcase not in the car.

-5- Searches Incident to Arrest

1. Why have such a rule?

2. Are stds excessively pro-govt in the 4th A context?

What is reasonable suspicion?

Profiling and Discretion

1. How do we define profiling?

ii. Generation might be created b/c of discretion

1. Special needs doctrine:

(D) LIMITS ON THE EXCLUSIONARY REMEDY

Standing to Argue for Exclusionary Rule

Fruits of the Poisonous Tree to Argue Exclusion

c. Toy’s unsigned confession: ?

PART II: POLICE INTERROGATION

(A) Miranda and Its Alternatives

1- The Path to Miranda

6- Waiver After Invoking the Right to Counsel

7- Miranda’s Constitutional Status?

8- Limits on Miranda’s Exclusionary Rule

1. Miranda violations do not give rise to a Sec 1983 c/a

(B) INTERROGATION AND THE 6TH AMENDMENT RIGHT TO COUNSEL

Deliberate Elicitation and the Adversarial Proceeding

v. Then 6th is violated.

Invocation and Waiver

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