Criminal Procedure Outline Amendment 4 • If no warrant, is the search unreasonable?

• Are the people not protected by government actions that is short of search or seizure? • Warrant must describe place to be searched, and person, and things to be seized. Amendment 5 • Cannot compel someone to confess, but what about coercion? What stage in investigation? • A defendant is guaranteed a right to have assistance of counsel. Does this compel the state or government to assist? Amendment 14 • No deprivation of life, liberty or property without due process of law. (state or federal gov.) • Can an individual engage in unreasonable search and seizure? o The constitution does not regulate (except Amend 13, slavery) individuals Supremacy Clause • State cannot enact laws that violate the federal constitution (ex, free speech) • State can broaden constitutional protection of individuals • As long as U.S. supreme court concludes that conduct is within the constitution, the federal courts must comply, Inherent ambiguity “the people” can be interpreted broadly, but U.S. Sup. Court see it as a limiting term, only those who are part of national community or with sufficient connection with this country (illegal search in Mexico of a non citizen is not covered) Tension Between Reasonableness and Warrant Clause • Search and seizure is presumed unreasonable without a warrant • Many exceptions “Probable Cause” • Standard that permits search and seizure without a warrant Remedies • Considered in connection with exclusionary rule Purpose of the Amendment Privacy protections of the people vs. power of the government I. Threshold Requirements for 4th, What is a search and seizure? Katz v. United States, 38 • Government agents attached electronic listening & recording device in public telephone booth • Issue: was the phone booth a constitutionally protected area (Δ’s argument) • Supreme Court o Constitutionally protected area unhelpful: 4th protects people, not places o Right to privacy not applicable to 4th amendment

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o Even though the government does not physically invade & what they are taking may not be tangible, could still be a search or seizure Π argues that they had met standards for a warrant o Powers must be separate, need for a neutral magistrate J. Harlan Concurring, 2 Prong Test o Individual has to exhibit a subjective/actual expectation of privacy [subjective] o That expectation must be one that society is prepared to accept as legitimate [reasonable, objective]  Plain view doctrine  Home  Conversation in the open (no subjective)  Shutting door of phone booth, reasonable qualifies as temporary private place Notes following Katz o Issue is typically whether the government’s conduct was reasonable

Applications of Katz Abandonment & Katz • If you claim something is not yours, you do not have an expectation of privacy, no 4th amend. protection • Abandonment may be explicit or inferred (from acts, words, and other objective facts) • If abandoned, a person has no standing to complain of 4th protection Open Fields Doctrine • Distinguished from constitutionally protected areas • A person does not have a legitimate expectation of privacy • Oliver v. United States o Field of marijuana, mile from Def. house o An individual may not legitimately demand privacy for activities conducted out of doors except in area immediately surrounding home o No societal interest in privacy for activities in open fields o Only curtilage warrants 4th amendment protection o Open field may be neither “open” or a “field” o Even if officers committed trespass, they had not violated 4th amendment o There was a subjective expectation of privacy, but not an objective Questions about Oliver and Open Fields Doctrine • Possible that open fields only applies to “observation searches” (not settled) Unites States v. Dunn, 49 • A barn located 50 yards from fence surrounding a residence on almost 200 acres of property was outside the curtilage. Officers went pass fence enclosing entire area, and interior fence, and smelled drugs. Shined light through netting around barn. • Curtilage, 4 Factors o Proximity of the area claimed to be curtilage to home o Whether the area is included within an enclosure surrounding the home o Nature of the uses to which the area is put  Can’t use retroactive evidence that area was used for drugs, owner must demonstrate objectively that it was being used for intimate activity of the home  Judged from outside observer

o The steps taken by the resident to protect the area from observation by people passing by Other cases • Visual inspection of property within the curtilage from outside of the curtilage does not constitute a search Access by Members of the Public • If an aspect of a person’s life is subject to scrutiny by society, then that person has no legitimate expectation of privacy Consensual Electronic Surveillance • One contemplating illegal activities must realize and risk that his companions may be reporting to the police. • An undercover cop does not violate 4th amendment by accepting an offer to do business that is freely made to the public • Hidden video camera in mailroom (p.51) o No reasonable expectation of privacy in public mailroom Financial Records, 51 • Does recordkeeping and reporting requirements of Bank Secrecy Act of 1970 violate 4th amendment? • No reasonable expectation of privacy over certain bank records Pen Registers, 52 • Supreme Court says Smith assumed the risk that the company would reveal to the police the numbers dialed • EPCA of 1986 o Provider must give consent or court order obtained (must give statement that pen register is likely to uncover information relevant to criminal investigation) Carnivore & Computers • Patriot Act permits pen collection of Carnivore • Trash: o Not issue of whether it was abandoned, mere fact that animals/people have ability to go through it, therefore no expectation of privacy • Arial Surveillance o Not search b/c observations from public vantage point, and had right to be, not a 4th amendment search o Florida v. Riley; even closer distance between ground and helicopter, court held was legal because no law prohibited the public from doing the same, therefore no reasonable belief of privacy Bag Search: Bond v. United States • Agents search bus, give bags a “hard squeeze” • Court holds Defendant did have some reasonable expectation of privacy in that he reasonably did not expect others to touch bag in exploratory nature o Opaque bag o Placed under his seat Investigation That can Only Reveal Illegal Activity • Not a search if it can only reveal illegal activity • Canine Sniffs

o Limited in manner in which info. is obtained & content of information revealed, therefore sui generis o Manner in which information is obtained not intrusive (does not require police to open bags) o A canine sniff of closed luggage for drugs was not search because dog sniffed in a limited manner Chemical testing: because this type of search only reveals illegal substances, not protected by 4th amendment

Technology & 4th Amendment Kyllo v. United States, 64 • Thermal Imager, across the street in the car, compared heat of suspect’s house to neighboring houses • Agents also had tips from informants, as well as other info. in addition to imaging, to obtain warrant, then searched house and found drugs • Issue: did thermal imaging violate 4th amendment; was it a search? • Needed probable cause for warrant, did not believe they had enough, so police used thermal imaging device • Reasoning: o Warrantless search of home is unreasonable o Visible observation is not a search o The degree of thermal imaging makes it different from a visible search • Holding o Obtaining by sense-enhancing technology any info. regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search, at least where the technology in question o This assures preservation of that degree of privacy against government that existed when the 4th amendment was adopted. On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search. o Government claims could not discover intimate activities; Court holds that inside home all activities are intimate, impractical to distinguish between what activities are intimate • Thermal Imaging today requires a probable cause, which is enough for a warrant Dog Sniff During Routine Traffic Stop Illinois v. Caballes (Supp.) • To search trunk of car, needed probable cause, which dog sniff could provide • U.S. Supreme Court o Issue: Whether 4th amend. Requires reasonable, articulable suspicion to justify using drugdetecting dog during legitimate traffic stop o A seizure that is lawful if the manner unreasonable interferes with 4th amendment rights  Duration of the stop [sub issue 1] Was it an improper extension of duration of time? • Time that is reasonable required to write a ticket  Character of a dog sniff, is it a search? [sub issue 2] o Dog Sniff:  Official conduct that does not compromise any legitimate interest in privacy is not a search subject to 4th amend (Katz)  No legitimate interest in contraband; gov. conduct that only reveals the possession contraband compromises no legitimate privacy interest (no objective interest in protecting drugs)  Because well trained drug dogs disclose only place of contraband, it is sui generis o Analogy to Kyllo

 Thermal imaging can detect lawful activity (heat vs. heard shuffling. only against private individual o How to establish if agency has been established  Did the private actor believe he was doing it for the government. AND  Did the gov. o Warrant requirement limits scope of the search (must be reasonable) o Opportunity to refuse a warrant when unreasonable  Warrant applications are almost always granted o Warrant requirement reduces the perception of improper police conduct  Perception is important for good of society that society perceives that police are doing the right thing . no sign of evidence being destroyed o Was NOT a search incident to lawful arrest because there was no justification for arrest without search Function of a Warrant • Policy considerations o 4th amendment: Protects against unjustified searches and seizures o Cannot justify improper behavior by finding drugs. and was not understood as an intentional waiver of constitutional rights o Officers. not a search of movable vehicle. endorsement. and participation sufficient to make the drug testing a government search regulated by 4th Reasonableness & Warrant Clause Johnson v. with smell and informant. 86 • Confidential informant told police of scent of opium coming from hotel room • Police officers identified themselves as law enforcement. was not a search • Investigate Activity by Private Citizens. ect. Knotts o Monitoring of beeper signal in drums o Issue: did officers invade reasonable expectation of privacy? o Court held okay because visual surveillance would have sufficed. “I want you to consider yourself under arrest” and searched the room • Supreme Court o Entering room is the beginning of the search o Consent allows police to search and defendant waives any rights against search o Defendant did NOT waive search because police officers demanded entry under color of office o Defendant’s response was submission to authority. had enough for probable cause & should have gone to magistrate for warrant o No reason for warrentless search in this case except inconvenience to officers. drugs) Notes about Kyllo • United States v. no action against government. 77 o Constitution only regulates state actions o Person can give something to government. have reason to know actor would act in that way o Skinner Case  Drug testing of railroad employees. knew smell of opium. court found 4th amendment applied because clear indices of the government’s encouragement. United States. woman opens door. had experience in narcotics. suspect was not fleeing.

last full paragraph o Probable cause is NOT prima facie o Police must only meet threshold probable cause requirement o Aguilar is less rigorous than Rules of Evidence o Magistrate may use common sense o Magistrates finding of probable cause must be accorded great deference on appeal • See page 97-98 for application of Spinelli rule Illinois v. o The tip did not meet this standard. Unites States. Application must set forth in affidavit: o Set forth the underlying circumstances necessary to enable the magistrate independently to judge the validity of the informant’s statements (Reliable Informant)  Police officers & citizens are presumed to be honest  Criminals (past or present) do not have this presumption. p. corroborated most actions with tip  Illinois court o Motion to suppress evidence: granted. through “totality of circumstances” • Supreme Court held Totality of Circumstances was not enough o Holding: Informant’s tip must pass Aguilar’s test without independent corroboration. 99  Anonymous tip to police about drugs and flying to Florida.93) source must be credible. 2 Prong Test. it was conclusory  (Draper case. Can rebut through • Showing that informant has given reliable information numerous times • Honesty over criminal behavior  Anonymous • Reliability cannot be presumed o Information by police to support claim that their informant was credible or his information reliable (Personal Knowledge)  Direct Statement of Personal Knowledge  Self Verifying Detail  Corroboration (can remedy either prong) • Information in the affidavit o FBI watched defendant go to certain buildings at certain time. info must be reliable  Must prove this  FBI independent info. there was probable cause. 2 phone lines under female name o Defendant was known to be a gambler and associate of gamblers  Activity that could be criminal or not. p. without informant o Gov. Gates.94. police watched couple.. agrees that FBI did not have enough for probable cause. no probable cause  No sufficient statement of underlying circumstances. check with telephone co.Obtaining a Search Warrant: Constitutional Pre-Requisites Demonstrating Probable Cause The Use of Confidential Informants Spinelli v. saying affidavit was not enough for warrant  fruit of the poisonous tree  Court of Appeals & Ill. does not satisfy this because not enough • Dicta. 91 (later overruled) • Aguilar Test. but in conjunction with the CI’s tip. Supreme Court o Agreed with trial court .

perhaps tip was not enough (credibility). 110 • Facts: phone tip from anonymous female with info. about stolen items in home of defendant. Issue: validity of warrant search pursuant to warrant content and credibility of tip • US Supreme Court o MA Supreme misunderstood Gates o Gates rejected Spinelli as hyper technical o Emphasized the deference to be given to the magistrate: no de novo scrutiny after the fact: all that is needed is a substantial basis for the warrant o Although no single piece of evidence is conclusive. they are closely intertwined. Supreme Court o Two prongs are too much. it described and predicted details not easily obtained. independent investigation suggested drug trafficking. the letter was corroborated by police. suspect planning to move loot soon in response to raid • Officer correctly guessed informant was girlfriend. she admitted it was her. it will encourage police to not use warrants o P. identified specific stolen items.103 two prong test impedes the tasks of law enforcement. o Fair probability the informant had obtained info from defendant or someone the defendant trusted. would not give personal information. there was a substantial basis for this warrant: pieces fit together o We do not require certainty: reasonable inference that she was girlfriend is enough Accomplices • Informant is more suspect than accomplice. police officer recognized voice and asked if it was the defendant’s girlfriend. use common sense judgment o If too hard to get a warrant. o Probable cause as a fluid concept o P. stolen items in trailer. • Reinforced that Gates replaced Spinelli for probable cause and confidential informant • Totality of Circumstances/common sense • Ordinary Citizen o Presumed for reliable/credible than anonymous informants. only a totality of circumstances is needed. Upton. 102: deficiency in one prong can be compensated by the other o Affidavits are usually drafted by lawyers. also needs corroboration . police are not lawyers. State court: can use Spinelli. warrant was issued • No dispute over initial raid. • Accomplice’s testimony can be used to convict in trial o Some jurisdictions. and predicted much of the defendant’s conduct. or police informants o Presumption they are motivated for societal good • Tip. parked at suspects home. but sufficient for common sense finding. (had met her before. making anonymous tips to diminish in value o Holding: totality of circumstances & common sense Warrant was proper because o P. voice and details she gave) gives more credibility to tip.S. has to at least apply totality of circumstances The Gates Test Applied: Massachusetts v.  o Illinois Supreme Court says it is bound by Spinelli U. 104.

no one said who’s drugs. arrested all 3 passengers • U. but they did have probable cause for B  arrest still valid . license said another. driver (who had passengers in car) consented to search after officer saw a large roll of bills. seized bag and contents. used description.Quantity of Information needed for probable cause • “fair probability” of a crime is probable cause • Prandy-Binett Case o Facts: Union Station. Supreme Court o Issue: defendant claims arrest was unlawful. said he lived in one state. and arrested Δ. Requested permission to search bag. search found drugs in back seat. • Driver consented to search.120-121 • Facts: police stopped car for speeding. They thought that they were arresting for probable cause that Δ engaged in crime A – they were wrong. he had drugs on him • Why are the drugs admissible in court? o There was probable cause based on sufficient similarity to description Probabilities With Multiple Suspects Maryland v. after officers saw roll of bills • Find drugs. Pringle p. suspect would have fled o Probable Cause found  Bulk of block  Shape of block  Wrapping o Amounted to fair probability Probable Cause to Arrest: Valez (118) • Had probable cause. Asked if there were drugs inside.S. which of itself is not a crime. approached Δ. But Δ was engaged in crime B. and not be conducting a crime o At issue: was seeing the brick probable cause for arrest  No warrant. Δ opened bag. IS THIS A VALID ARREST? o Cops believed they had probable cause for A. have probable cause • Questioned. b/c only the driver should have been arrested o Court concluded that is was reasonable under circumstances that all 3 exercised dominion or control over the drugs Obtaining a search warrant: constitutional prerequisites Probable Cause for Arrest Different from the Charge on Which the Defendant was Arrested Devenpeck v. in fact they did not have probable cause for A. arrested wrong man. Detectives arrested Δ. officer futher suspicious over small tote (Δ had said he just spent week in NJ). but does suggest a crime o “bare suspicion” <----------probable cause---------beyond reasonable doubt o (reasonable suspicion is between bare and probable) o Conditional probabilities  What are the odds that someone would engage in all this conduct. Alford (supp) • Issue: Suspect is suspected for crime A but arrested for crime B. police observe particular individual walking though station. an opaque bag wrapped in duct tape. (block revealed to be cocaine) o Equivocal activity as probable cause  Suspectable activity.

look only to the reasonable inferences at the time of the arrest. • Supreme Court: o Privacy is no more disturbed thru this procedure of evidence related to crime.S. • Exigent circumstances exception – under the circumstances seemed to impractical and difficult • As long as Δ shows he did everything he has at the state ct level then he cal look across to the federal ct system – habeas petition for relief that the state ct decision violated their rights • Federal ct: o Police found mere evidence. 543 U. Car on side of the road and D asked if the guy was a cop. Even if not closely related • Changed the district ct rule. it would depend on factors familiar to the officer. When the P believes that D is engaged in conduct that P has PC to arrest – even if he is wrong subjectively. vs evidence of fruit of the crime – there must be a nexus between the items seized and criminal activity – a relation. 126 Things that Can Be Seized • Before 1967 said the search had to be part of the fruits of the crime. and not the mere evidence of the crime. A sergeant arrives at the scene and questions D – skeptical of D.• • Facts: wig-wag lights on car. if the facts demonstrate objectively that there is PC – then we will allow the arrest. See a tape recorder recording the conversation o The officer has PC that D committed a crime of violating the Washington privacy act. He told officer he worked for the state patrol. cans till be lawful subjectively.  Says that the 9th circuit has to look at the substance of the B charge because the close related test is rejected and see if B alone gives rise to PC and if proper then must rule in favor of officers and show no claim for civil rights violation. Specificity & Reasonableness Warden v Hayden. . We throw out whatever statement the officer makes and we look at the facts as known to the officer and we make a conclusion if the officer has PC to make an arrest whatever they may be. D says he is allowed to do this – has a copy of act in car. Devenpeck v.  Rejects the closely related rule. The police thought that D was a wanna be cop.  As long as we stick to the objective test then the answers are clear. the clothes weren’t used to commit the crime – therefore the conviction was based on improperly obtained evidence. This distinction is not workable and this case rejected this distinction. Although arrested for the wrong reason. 2004) Probable Cause. o Supreme Court  We cannot look at after the fact consideration . D wasn’t violating the privacy act but had PC of him trying to impersonate a police officer. 146 (U.  Do we do this according to the officers own subjective inference or do we look at this from an objective standard?  We should not allow subjective interpretations be the deciding factor – should be objective. Alford. He saw items in Ds car that. – this is a surprising concern.  Problem with the closely related test – we would not have consistency in arrests.S. This guy was a wanna be cop.  Therefore it is irrelevant why he arrests so long as the Officer has PC to make the arrest.

search conducted.police can search trunk Describing the Things to be Seized Anderson Case • Application for warrant to search real estate attorney’s office. evidence related to unknown crimes. instrumentalities and evidence of crime at this time unknown” • Holding: this phrase is not a separate sentence. • Hence. not other crimes • (Anderson Case. warrant only authorized officers for evidence of Lot 13 crime.4th A search can look for mere evidence of a crime.Reasonable • Have to have a description of the place to be searched.apt and even though the police searched the wrong one – it is ok because there was sufficient particularized enough – wont hold them responsible for what they discovered after the fact. last class. Warrant search of materials violated their rights o SC: can search for evidence of the crime – to prevent unreasonable search and seizure must have PC and warrant with the location of area to be searched and the objects to be seized. Warrant was granted. office within • Unless apparent that car does not belong to anyone connected with illegal activity.a condition that will rarely be satisfied.o Clear that obtaining these clothes helped with the conviction of the D and aided in the conviction of d. • Technical precision is not required • Can only search areas that would be reasonable under the circumstances what could reasonably fit and be there) cannot search for gold blocks in a small container in which it cannot fit Breadth of the Place to Be Searched • Search of premises generally includes any vehicles inside if objects of search could be found within • Any person’s property can be searched so long as objects of search can be found within • Warrant to search “premises” included detached garage. o Therefore a search of another’s premises for Ds crime is ok as long as meet all the other requirements. overbroad. shed. right violated because terms of the search warrants were so broad as to make them impermissible general warrants o Specific issue: each clause of warrant had “ together with other fruits. but we still require PC and warrant (neutral magistrate) Concept must have PC as to the location of the evidence • Probable cause that the evidence is located on that property • A search of a non suspects home for the purpose of obtaining evidence of another’s crime. • Zurcher Case – third party search  ok if properly issued o Searched the offices but didn’t find any evidence. o Police can search a third parties premises for evidence of a crime committed by someone else – no violation of rights Particularity Requirement . it was preceded by “items pertaining to Lot 13”. • SC says – in light of the info available to police at time warrant granted they thought this was one particular . o Although they are broadening the range of police activity . 3% of files were seized • Issue: Δ claims 4th amend. for specified documents for a specific sale. Supreme Court interpreted extra phrase as being understood in the context of the rest of the warrant) . meant to be read a whole.

generally. 41(e) (2) ( P. even if there is probable cause & police obtain a warrant. Lee. courts will sever that clause and it will not taint rest of warrant or search o Only items seized under overbroad portion will be suppressed Reasonableness & Warrants • P. Proc. that does not mean search is reasonable (Winston v.Public official can have qualified immunity – how bad was their conduct is the issue Severability of a Warrant • If a clause is overbroad. therefore court overturned validly entered warrant b/c there was other evidence to prove case Details of the Warrant ALI Model Code • Scope & contents: o Identify of the applicant an all person whose affidavits were submitted in support of the application o The issuing authority’s finding of sufficiency of the application and reasonable cause for issuance of the warrant  Warrant will not identify name of CI Fed. police are allowed to break open door o It protects  Citizens & law enforcement from violence  Protect individual privacy rights . Crim. unless good cause shown • 6 am -10pm (unless good cause found) o Narcotics exception. R. no special showing other than contraband is likely to be on person or property at time of search Anticipatory Warrants o Conditioned upon future events o If police had probable cause to believe cocaine would be delivered by two messengers. in either warrant or attached affidavit Executing a Warrant • Knock and Announce Requirement (Federal Statute) o (can break anything) if they are refused admittance or to liberate himself or person aiding him in execution of warrant o The officer must give notice of their authority and purpose o If permission to enter is given. then they are permitted o If admittance is refused. order for surgery to remove bullet) o Very intrusive form of search. 144 o Anticipatory warrant is preferable to no warrant and dependency on exigent circumstances by law enforcement  Must set forth explicit conditions to limit the discretion to the officers in determining whether the triggering event has occurred  Triggering event must be set forth in specificity. p. (and risky). no longer than 10 days • Must be in daytime.143-4) • Execute warrant in specific time.142.

) Constitutional Basis o (Wilson v.• • • • •  Protects against needless destruction of private property o Refusal of Admittance  Express or implicit  (implicit: police can reasonable infer refusal under the circumstances) • Look at circumstances (size of house. evidence is suppressed o However this rule is not constitutional. not required to make reasonable search. ect. p. it is not breaking.. failure to knock & announce can be unreasonable  violates 4th amendment  Knock & announce is statutory requirement. inhibit the effective investigation of the crime • (lesser standard than probable cause)  Holds that it was reasonable suspicion b/c suspect knew it was the police (saw them) and would likely destroy evidence  Other examples of justified no knock: defendant had violent criminal history If police violate the Knock and Announce. AR) p. 150. therefore not needed Emergency Circumstances [exception] o Destruction of evidence. waited 2-3 seconds. majority of courts. risk of harm to offices or others o Richards v. then search is unreasonable. therefore no per se violation of 4th amendment  Inquiry: whether circumstances existed sufficient to excuse the fact officers entered without announcing presence Exceptions to the Notice Rule. or futile. 146  If police conduct search without knock & announce. p. 147  Needed no knock entry warrant  Knocked. it is statutory  P. what are the remedies to the Defendant? o If police violate constitutional rights. ect. or dangerous. or risk of destruction of evidence. kicked in door  Found cocaine in ceiling  WI Supreme Court: did they comply with knock & announce requirement • Automatically excused if searching for felony drug crime • High risk of destruction of evidence & likelihood of danger  US Supreme Court • Rejected automatic exception o Overly general exception (not all drug cases will carry these risks) o Reasons can be applied to other crimes • Must look at each case to determine if there should be an exception • Standard: police need reasonable suspicion that evidence will be destroyed if they announce their presence. 147 o Most circuits have held if door already open. Wilson. evidence is suppressed Destruction of Property & No Knock Entry. 150 o Properly issued no knock warrant o Reasonableness is from the perspective of the police when they executed the warrant . p. is it per se 4th amendment violation?  In some circumstances. time of day. such a search does not require exclusion of evidence (per se)  Other courts conclude if there is failure to knock & announce. It is component of 4th amendment reasonableness inquiry  If in pursuit of suspect. could be reasonable not to knock and announce.

164: Rubber Stamp o Cannot issue warrant without reading the application o Hard for Δ to prove  Volume of warrants issued proved that judge had extraordinary experience in reviewing warrants Legal Training of Magistrate • Must be neutral & capable of determining probable cause (Tampa Case) • Federal Court: Federal Magistrates or Judge of State court of record to issue federal warrants . then break in • Trial Ct. then you waive your right to appeal) • 9th circuit reversed. 15-20 sec.S. reasonableness standard imposes some limitation of the destructiveness of a search o Under fact specific analysis: there was reasonable suspicion o Statutory argument that destruction of property is per se violation court rejected (common law) Exigent Circumstances After Knocking United States v. answered phone and took orders for drugs. the police had a reasonable suspicion that drugs were being destroyed o Therefore exigent circumstances did apply  can break in o Police did not argue that there was an implicit refusal b/c  It was a large house. Banks. but not if deny • Magistrate cannot assist in search itself • P. officers conducting warranted search of apartment for drugs. Supreme Ct. reserving right to appeal (generally if plea. 4th amendment does not give specifics o Requires reasonableness. may not have been long enough for a response o Not based on def. p. no answer (over drugs). o Phone was interpreted by court as an “apparatus”. Defendant’s argument: did not wait long enough time to break in • Defendant pleaded guilty.o Issue: were they allowed to break window (seemingly unnecessarily)  Wanted to prevent occupants from reaching stash of weapons o Reasonable suspicion standard (U. did they have a reasonable suspicions. 152 • Facts: Knocked. ordered evidence suppressed • Supreme Court o Must look at each case individually. waited 15-20 seconds.)  4th amend. looks at totality of circumstances o Holding: justification for police activity. 163-66 • Elected magistrates allowed (questions neutrality) • Warrant issued by State Attorney General (prosecutor) invalid o Conflict of interest • Cannot pay fee to issue. therefore warrant giving permission to search for dug paraphernalia included the phone. being in shower: police could not know this When is the Search Completed? • When all materials described in warrant are found • Officers can broadly interpret the ongoing nature of the search o Ex. The Screening Magistrate: Neutral and Detached p.

and the officer has reasonable cause to believe that such person  Will not be apprehended unless immediately arrested. o Severity of crime o Immediate threat of safety to officers or others o Resisting arrest or attempting to evade arrest by flight • Non deadly force must also be reasonable o (release of attack dog during burglary investigation without verbal warning was unreasonable under 4th amend. The informant met with Δ. police found stolen credit cards in car. o A misdemeanor. (172) • Deadly force: may be used only if (in arrest) o there is necessity to prevent flight of suspect AND o threat of death to police or others [necessary to warn suspect if reasonable] Graham v. and gave police signal that Δ had more on him. Not a constitutional violation o Warrantless public arrests on probable cause allowed Use of Force & Reasonableness Garner Case. Police arrested Δ.) . asked to search his car. Reasonableness analysis applies. searched him (found nothing). Δ claimed arrest was illegal for want of an arrest warrant • Issue: did they have authority to arrest without warrant? • Officers may arrest without warrant if there is reasonable/probable cause to believe that a felony had been committed o Common law allows felony arrests on probable cause without warrant.• P. punishable by fine. court held for a bright line rule that a custodial arrest is always reasonable if the officer has probable cause of a criminal violation o Otherwise more difficulty for officers o Decision to proceed by arrest or summons is within officer’s discretion • Always reasonable to arrest for probable cause even if not punishable by jail time The Constitutional Rule: Arrests in Public Watson Case (168) • Informant (with past history of good tips) told police of Δ with stolen credit cards. Conner (172) • When there is a claim of excessive force (whether deadly or not) a standard of review is the 4th amend. or  May cause injury to himself or others or damage to property unless immediately arrested. 166: magistrate does not have to give reason for probable cause or for rejecting warrant To Apply or Not Apply the Warrant Clause ALI: Arrest Without a Warrant • A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed o A felony. told him that if they found something they would use it against him. Δ gave permission. or o A misdemeanor or petty misdemeanor in the officer’s presence Atwater Case (167) • Seatbelt law offense.

was there probable cause? 4th amendment: reasonableness • Always required if 4th amendment is triggered Stop & Frisk Established Terry v. then triggers 4th amendment Was there a warrant?  was there probable cause for it? No warrant. had arrest warrant. • A search warrant must be obtained to search for a suspect in the home of a 3rd party o Would require magistrate to determine probable cause to believe that the suspect is located in the home of a 3rd party • If 3rd party lives with the arrestee o No search warrant required • Police require search warrant to enter 3rd party o Only homeowner has standing to object to lack of search warrant o Arrestee does not have standing for this • Arrest warrant (Olson) require arrest warrant to arrest in 3rd party home if overnight guest. 200 . (Reasonable expectation of privcacy) • FOCUS on individual complaining of conduct on exam Question of standing: 187 • Violation of another’s rights cannot be used to suppress evidence • Can claim violation of right if you have standing Rights of an Overnight Guest.S. 187 • Temporary visitor: did they have a reasonable expectation of privacy? • Commercial purpose. short time. Ohio. ect. p. did not find suspect but did find drugs. no connection to owner  no reasonable expectation . Olson. ect. 186 • Facts: received info that suspect was at certain house for next 24 hours. p. Supreme Court: individuals in their homes deserve special protection: absent exigent circumstances cannot arrest in their home without arrest warrant • Requires the police attain arrest warrant for home in own home of suspect Arrests in Home of a 3rd Party Stegald. short time. Δ moved to suppress on grounds that officers did not have a search warrant. went to house. no arrest warrant Was there an actual search or seizure? If yes.Arrests in Home The Payton Rule • Went into apartment to arrest without warrant • U. did not have reasonable expectation of privacy • Because guest for commercial purposes. 186 • Does a guest have standing to argue that they can challenge arrest in 3rd parties’ home? • Overnight guest has sufficient expectation of privacy to require an arrest warrant [Peyton steps in] arrest warrant required Carter.

reached in side coat but could not reach it. (looked like they were casing a job) o Approached the men. and ordered all men to face wall with hands up. problem with argument: arrest occurred after search. removed gun. repeat. reasonableness allows (and requires) officer to discount or neutralize danger  Reasonable suspicion of Danger Supreme Court (IV) o Protective search for weapons not justified by concern for destruction of evidence o sole justification must be protection of police or others nearby: scope  nature and justification must be confined in scope to be reasonably designed to discover weapons Supreme Court (V) o Facts of case justified b/c under facts. area known for shoplifters and pickpockets). opens jacket and gets revolver. watched one continue to walk to shop look in window. pats the other two. can’t tell you why” their actions “didn’t look right” o Felt duty to investigate. which police did not have before pat down Supreme Court (I) o Being in the street. articulable facts  so subjective feelings are not the only justification  objective standard. asked for their names o Officer grabbed Δ and patted him down. actual arrest requires probable cause. feared they may have a gun.  Search & seizure  probable cause  Stop & frisk  reasonableness o The initial taking hold & pat down is what is at issue  Dual inquiry: whether the officer’s action was justified in its inception &  It was reasonably related in scope to the circumstances which justified the interference in the 1st place o b/c of type of activity of police which must be swift in action. his attention was attracted by 2 men. removed Δ overcoat. said he was a cop. o Motion to suppress by Δ Key testimony in motion to suppress are police officers (more credibility than defendant) o they attracted my attention. o Ordered all suspects inside. justified b/c officer had reasonable belief that defendant may have a gun. finds another revolver in overcoat o Reason for patdown Court reasoning o Considering stages of police activity. 4th still applies Supreme Court (II) Threshold Issue o Was there a “search” or “seizure” o 4th does apply to searches/seizures that do not rise to probable cause protection. continued to observe men. stopped and frisked over danger of armed robbery . Patted down other 2. stopped an frisked them. (many years experience as cop. felt a pistol. but do trigger 4th amendment implications (a stop is a seizure of a person) o Issue: reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security. why probable cause/warrant not needed Supreme Court (III) o Court must look to specific. which stage of police activity was at issue? The people argued over seizure of the guns convincing. court found officer’s conduct to be reasonable  if officer has sufficient suspicions of danger (armed and presently dangerous to officer or others). felt pistol under clothing.• • • • • • • • Facts: plainclothes cop patrolling. b/c lawful arrest. walk back to other man. assumes search was not at issue. good faith is not enough o applied to facts of this case. there is no time to get warrant.

p. asked him to get out of vehicle to give police license. instead he rolled down window. they were justified in stop • No question that once officer observed bulge in jacket. 214 • Can order passengers out of car • Extends Mims to passengers of vehicle even if no reasonable suspicion of passengers (still represent a danger to officer) Mimms Applied: NY v. not seizure. Class. 217 • When search of home with search warrant. it is reasonable to use handcuffs • Inquiring over immigration status did not prolong time Mena was detained o Mere police questioning is not a seizure .Stop and Frisks: because lesser degree of search and seizure. could handcuff occupant and inquire over immigration status • If searching for weapons. through which police obtained probable cause. approached vehicle. Summers. officer reached into car to move papers on top of number. officer reached in and grabbed gun from waistband where informant said it would be. • Because it was stop. reasonableness was met • Frisk: officer did have reason to fear for safety • Informant’s info gave reasonable suspicion. hence less expectation of privacy Detention of Occupants of a Residence: MI v. 216 • Vin number covered up. and revealed a gun • Officer acted reasonably o Diminished expectation of privacy regarding vin number of the car o Can usually be seen from the exterior of car o Motorist must expect that regulation will require police to determine VIN number. do not need probable cause AND suspect may be armed and dangerous Limited stop and frisk to outer clothing Only purpose to look for weapons Applications of Terry Adams v. Williams. noticed bulge in jacket and thought it was a gun (it was) • No issue. therefore as long as reasonable suspicion. can order occupants to stay in home during search Supp (?) Mena When have search warrant for home & concern of dangerous inviduals. there was reasonable suspicion to frisk • ISSUE: was officer justified in ordering defendant out of car (is this an actual seizure that requires probable cause) o Bright Line Rule: officers in course of legal stop of car have automatic right to order driver out of car Mimms & Passengers: Wilson. p. called for backup. could and did do Terry stop and frisk. PA. asked suspect to get out of car. pursuant to this they conducted arrest. 209 • Policeman was informed by known informant that that a person seated in a nearby vehicle was carrying narcotics & had a gun. 211 • Police pulled over Δ for traffic violation. then were allowed to conduct full search Brightline Rules under Terry Mimms v.

Suitcase opened. which detectives then searched without further permission. any activity is not a seizure Crash into road block: seizure only (find this) There can be non physical display of authority if a reasonable person would not feel free to leave & suspect must submit to display of authority Mendenhall “Free to Leave” Test Mendenhall and two cases (217-221) • Δ observed by DEA agents at airport. mannerisms. look at totality of circumstances (same as probable cause analysis) Florida case: no reliability on informant. probable cause) Stop and frisk is on a “lower level”  Terry v. Δ said he did not know combination to lock on other bag. objective grounds for doing so. even when informed that suitcase might have to be broken. which refusal to answer questions does not supply • Holding: a reasonable person would have felt that he could not leave. appearance. looked at different name on ticket and license. p. Δ asked to consent to search. is the question is whether police have reasonable suspicion. asked Δ to go with them to office for further questions. asked him to go to room. that is a seizure for 4th amendment purposes • If police asks individual to stay. not under 4th amendment Florida • Δ at airport. therefore there was a seizure o Asking Δ to go to office with them. Ohio. more drugs found.Bus sweep: standard: if a reasonable person would feel they could terminate encounter with police. he said to go ahead. asked for drivers license. consent is needed o Approaching person on street to ask questions does not trigger 4th amend. need reasonable suspicion Quantum of Suspicion 1st question: source of information White Case: anonymous tip. did not tell Δ he was free to leave Look at totality of circumstances Need particular and objective basis for suspecting individual of particular activity 4th amendment which describes necessity for search and seizure (warrant. luggage and actions fit “drug courier profile”. Drugs found • If individual reasonably believes they are not free to leave. while keeping his ticket and license. detectives asked if they could. In office Δ was asked if she would allow search of her person and bag (consented). • Δ testified he believed he was not free to leave. which Δ did. police were not then authorized to perform terry stop and frisk Cortez. o Person does not have to answer questions o Cannot be detained without reasonable. stopped him. did not say anything but unlocked one suitcase. approached Δ. and the individual should reasonably know they can leave. Δ went. therefore not a seizure. detectives retrieved luggage. 245 . was different from name on ticket. Officers testified that they believed he did not have probable cause to arrest until after he opened suitcase • Rules o State has burden to prove consent o Without warrant or probable cause & exigent circumstances.

7 factors little or no weight. ect. deductions. may make inferences. and police officer must articulate precisely what gave them the reasonable suspicion. 246 • Near MX border. not certainties o (2nd) assessment of the whole picture must yield a particular suspicion  Must raise suspicion that particular individual is engaged in wrongdoing Reasonable Suspicion vs. consideration of particular criminal activity. inferences and deductions from their training • Dealing with probabilities. • AT ISSUE: did officer have reasonable suspicion to make stop • (driver gave permission to search car) • District Court o There was reasonable suspicion th • 9 Cir. ect. the remaining 3 factors are insufficient for claim of reasonable suspicion • SC o Although reasonable suspicion requires more than a hunch. o Reversed. the court emphasizes that b/c it is based on totality of circumstances. kids looked like their feet were propped up. to unpaved roads  Children’s elevated knees • Mere hunch is not enough for reasonable suspicion necessary for Terry stop/frisk . Probable Cause • Reasonable Suspicion is less demanding standard of proof o Think of as a “possible cause” o Used for stops • Probable Cause o “Fair probablility” Assessment of Probabilities United States v. Arvizu. police reports.• • Quantum of suspicion to meet reasonable suspicion Test to determine whether a reasonable suspicion exists in given set of circumstances: o Totality of circumstances must be taken into account. Particularized suspicion must contain 2 elements:  (1st prong) assessment must be based on all circumstances (objective observation. the police must have a particular and objective basis for police suspicion of Δ. During shift change • Road to avoid checkpoint had sensors • Type of mini-van officer knew to often be used. The SC rejects a neat set of legal rules o Sufficient for reasonable suspicion  Inferences from observations  Registration check  Expericne as a border patrol agent that suspect was on road used for drug couriers to avoid check point  Common sense inference over suspect using roads during shift change  Likelihood that it was a family on a picnic diminished by trunign away from known recreational areas.

271-272 • Protected sweep: quick and limited search of a premises. Protective Sweep. • NY state court rejected this. found guns • ISSUE: was there reasonable suspicion to stop & frisk • SC: there was reasonable suspicion under totality of circumstances o Presence in high crime area. Long.Reasonable Suspicion of a Completed Crime p.260 • Lists of characteristics compiled through law enforcement through experience for specific crimes • Primary and secondary characteristics of drug couriers • On of themselves cannot be used for reasonable suspicion. Δ went to car. 263 • Caravan of police vehicles in high crime area • Suspect fled. 268 • Δ was driving erratically. was out of car when police came. grounded in specific and articulable facts. Long • Officers searched locked glove compartment when they had reasonable suspicion of drug activity • Holding: weapons and violence are frequently associated with drugs. OH applies to completed crimes as well. Buie. p. p. requested license. under theses circumstances was justified Terry frisks only allowed for protective searches: search for evidence is not permitted under Terry Protective Search beyond the Suspect’s Person: MI v. p. • Had reasonable suspicion to stop car. believe defendant had committed crime • Stops are approved where police have a reasonable suspicion. it is not a mere refusal to cooperate o Investigating further is allowed o Suspect did not merely refuse to cooperate (which he had a right to do) o Unprovoked flight in a high crime area. incident to an arrest and conducted to protect the safety of police officers or others . marijuana found. but suggestive of a wrongdoing. officers reasonably believed that the individuals with whom they were dealing were armed and dangerous. held that the state constitutional rights do not permits this Applying MI v. 261-62 o A profile does not detract from their evidentiary significance as seen by a trained agent o Degree of suspicion of the activities was enough for reasonable suspicion o Holding: no characteristic is given greater or lesser weight merely because the characteristic happens to be in or absent from a profile Reasonable Suspicion & Flight from police: Wardlow Case. not necessarily indicative for wrong doing. • Officers can conduct limited examination of the area from which suspect (who is reasonable believed to be dangerous) might gain immediate control of a weapon. Protective search performed in passenger compartment. officers performed stop and frisk. Hensley Case • Terry v. but the reasoning behind the characteristics can be used • Sokolow Case. that a person they encounter was involved in or is wanted in connection with a completed felony • Police can rely on their collective knowledge Profiles. not enough on its own o Unprovoked flight: consummate act of evasion. swerved into ditch. 356. officer flashed light and saw hunting knife in car. Maryland v.

but not probable cause. but consent makes it valid o Bright line rule rejected by court to tell defendant that initial stop has ended and he is free to go o Officer is under no obligation to tell individual the stop has ended and the invidiual is free to go • Can continue to question. AT time of sweep officers had reasonable suspicion. arrested Δ at his home. and required reasonableness: reasonable suspicion • 4th amend. conducted protective sweep and discovered clothing that tied him to robbery. suspect reasonable believed he could not leave (see underlined factors) (273) o There was no probable cause for arrest • Some forced movement may be justified under Terry Stop. they can ask to search. even if the detention is not deemed to be an arrest under state law (even if no booking/arrest record) o Requires probable cause. escalated. Requires probable cause for warrant & seizure Factors to determine • Forced Movement of Suspect to a Custodial Area o Royer: Δ taken from public area of airport to small room • Investigative detention must be temporary and last no longer than is necessary to effectuate the purpose AND • methods should be least intrusive means reasonable available to verify or dispel the officer’s suspicion in a short period of time • This is the state’s burden • Factors looked at & application of factors by court o Begun as consensual. Robinette: o After stop. o No probable cause. to believe that partner in crime might be hiding there. any answers are voluntary because suspect had right to leave Interrogation beyond the confines of terry: custodial interrogation • Dunaway o Police cannot detain a suspect and transport him to the stationhouse for questioning without probable cause. May extend to a cursory inspection of those spaces where a person may be found. ask to search car. not to prevent destruction of evidence The question is: whether there is a reasonable suspicion to believe that there is someone other than the arrestee who. intrudes too severely on interests for protected by 4th amendment • Kaupp . and can last no longer than is necessary to dispel reasonable suspicion of danger Conducted only for safety. was consented to.• • • • Officers had probable cause to believe that Δ committed armed robbery. 277 • Suspect may not be detained for investigated matters other than why he was stopped unless they have reasonable suspicion • If initial stop and frisk does not give further grounds for investigation. under the circumstances could present a risk of harm to officers or others Line between Terry stop and arrest • Terry limited to stop & frisks. but suspect can refuse and leave • Ohio v. found drugs. probable cause is required if the officer forces the suspect to move in order to further the investigation or to place more pressure on suspect Consensual encounters after stop has ended.

ordered driver to leave car. 282 o Private citizen sees 3 black youths with expensive camera inside dilapidated car & calls police saying may have been a burglary. and was not resisted. Then ordered to kneel. this was a seizure. but it was not reasonable • Requires probable cause for seizure. court ruled was a reasonable time b/c officers did not do anything unnecessary. had reasonable suspicion but not probable cause o Although fingerprinting in field may be okay. o Whether police diligently pursued means to investigate to quickly dispel and confirm their suspicions. there was no probable cause. police enter bedroom. Arrest Sharpe Case. 6 police cruisers form a wedge around the vehicle. too intrusive activity  Oppresive elements by police  No evidence of a crime . therefore violated 4th amendment Fingerprinting. handcuffed. searched while spread over car. one driver stopped for 30-40 minutes. by trying to evade police. as matter of law. tell suspect that he needs to go to headquarters. walk backwards towards police. he says “okay” o At issue: involuntary transport to police station: need probable cause o No reasonable suspicion/probable cause o State court held was valid b/c he said “okay” o Supreme Court: no meaningful choice. handcuff. AND o It has to be necessary to have detained the defendant during that time • At some point an indefinite stop does become an arrest because of time that has passed o Must consider each case and police conduct Show of force during stop • Guns and handcuffs allowed if there is reasonable suspicion to believe that they are necessary to protect the officer from harm • Oliveira Case. removing suspect to stationhouse they are making a seizure (in field could be justified under reasonable suspicion) • May not require probable cause. AND o As long as police are diligent. Were eventually released o Under these facts. by loudspeaker plaintiffs were ordered to stop their vehicle.281 • 2 cars pulled over. hands on head.o 3am. and suspect. Entire contents of car searched. and keep their hands on the windows. it is required. contributed to length of stop • There is no set time for Terry. o In Hayes: brief detention with reasonable suspicion in field may be okay Length of Time: Stop vs. Suspects questioned separately. or option but to go. P. 279 • Davis o Fingerprinting by definition is not a bright line rule under probable cause o Here the suspect was fingerprinted 2 times. but with Davis. placed in cruiser. therefore no consent • View from perspective of reasonable person o Use of handcuffs: state court says was fine because police do it routinely o Supreme Court: may be routine. toss out the keys. then they have not per se transformed from stop to de facto seizure/arrest. With guns drawn. and interrogated: this required probable cause • Hayes o Took to stationhouse without his consent. one read Miranda rights.

and did not open the package  privacy interest not violated • Place. police told suspect to show i. if i. 24) o Authority to question. officer was authorized to detain (p. denied many times to do so. • Utah statute.•  Absence of any indication plaintiffs were armed and dangerous o An arrest in unreasonable matter. is requested. 285 Terry Stop & Request for Identification Hibel.) o (narrower and more precise) • III o Asking questions is important for police o Delgado: requesting id is not a seizure o Terry: brief question with reasonable suspicion is okay  Asking for identification is a permissible question during interrogation • Ultimate issue: can person refuse to answer o Not asking if suspect has obligation to respond (4th does not require this) o Does 4th protect individual from refusing to respond o Because police require reasonable suspicion (and has it) and under Terry. however no brightline rule (was unreasonable without probable cause)  Did not tell suspect where is luggage was o Was it reasonable for police to hold onto property. what are the ramifications • Got call.d. can be unreasonable stop Issues of Race. does not have to answer any other questions • Supreme Court o Vagrancy laws. 286 o Luggage seizure is different. • Do police have authority in Terry Stop to demand identification. .d.. failure to give id is a crime. arrested for obstructing officer from doing his duty • Under state statutes. a state statute can impose criminal penalties for refusing to answer. and the important governmental interests in doing so. to vague and broad scope • Court held this statute did not on its terms violate the 4th? o Officer must have reasonable suspicion to request identification o Statute requires suspect to disclose their name (not a license. and if it is not provided. which in turn gives officer probable cause to make actual arrest Detention of Property under Terry. even with reasonable suspicion. 23 Supp. mostly unconstitutional. and in Utah. p. 90 minute detention was unreasonable because police failed to inform defendant of the circumstances. that gives officer probable cause to make arrest o It is statutorily permissible in this case o However. suspect must identify themselves. it was more prudent to hold package. because statute is allowed. it was tantamount to detention of defendant himself. pursuant to a terry stop police have authority to ask person to identify themselves. find car. ect. suspect can refuse to answer and no penalty o The 4th amendment does not prohibit the state from enacting this statute • Upheld state statute requires id with Terry stop. in absence of statute. 285 • Van Leeuwen Case o Detained package for a day while investigating (had reasonable suspicion) o Court said because this was done promptly and diligently. and with unreasonable force can violate 4th o Same with Terry.

ect. Moved equipment to get serial number. o Defendant’s anticipation that he would receive goods at certain time is irrelevant. struggle. ect.   • were they diligently pursuing. not entire room. 296 • Defendant tried to reach for cabinet. method of detainment. Arrangement for dog sniff. 294 • Waited till he came home. o reasonable to search arrestee [Terry v. or closed drawers. ect. handcuffed defendant. or exception)  Pursuant to arrest police may conduct warrentless search Spatial Limitations of this Chimmel v. it is assumed that defendant does not have ability to reach into closed containers. did it anyway. and noticed 2 sets of expensive stereos in crappy apt. by definition there is no such thing as a cursory search. lawful arrest. and looked inside drawers. frisk for protection of officers] to find evidence b/c 4th amendment is present. o also search any area within the defendant’s immediate control [aka defendant’s grab area]. OH. frisk is allowed when it is needed to protect officers or others. Package had guranteed delivery time. court seeks to explain rationale. drawers. goals need not be only safety. • RULES: o no justification for searching any room other than where arrest is made. containers o Brightline rule Crispin • After arrest police can remain with defendant at all times. was a reasonable time Limited Searches for Evidence Under Terry Hicks o Does Terry permit limited search for evidence based on reasonable suspicion? o Police lawfully entered premises from which a weapon had been fired. method of informing owner LaFrance o Police had reasonable suspicion particular package had drugs. CA p. requires probable cause • Dickerson o A Terry search. and limit scope of an incident search • “arrest power rule” o Lawful arrest (warrant. asked to search house. packaged delayed past time. no consent given. not permitted to frisk solely for obtaining evidence of another crime (need probable cuase) Search Incident to a Lawful Arrest • Warrentless search incident to lawful arrest was common law • This case. b/c .  where defendant might reach. can reach into clothing. was still a package not luggage. even can follow them into private home. looking at stereo was a search. officers were allowed to then search cabinet. not to find other evidence o A Terry search and frisk permitted only for protection for safety of officer or others. Application of Chimmel: Lucas p. (was stolen) o State argued it was merely a cursory search justified under reasonable suspicion o Supreme Court: a search is a search.

cops searched entire house including bedroom (not where defendant was arrested) o No exigent circumstances. broken glass. police must show specific exigent facts. 298 • kid was under arrest. or escape) Post Arrest Movements Ordered by the Officer United States v. Lousiana o Arrested defendant right after he entered home. he was reaching for the area. destruction of evidence. and can then search suspect Post Arrest Movements. however search cannot be used to create probable cause to make arrest Creating Grab Areas • police cannot do this Scope • can make arrest (Atwater) even if doing so is embarresing. made him go inside and get shoes. during arrest his family came home. though a closed cabinet would not under Chimmel be a grab area. even if after individual has been removed • if have probable cause. was in dorm room. could permit search beyond grab area during lawful arrest • Vale v. it is seizable. Washington v. Minority Timing of Grab Area Determination • Upheld seizure of rifle which had been close to defendant during arrest. unhandcuffed suspects were there o Emphasis that search was right after struggle o Considering. • Distinction: one thing to follow arrestee (this case) from directly creating grab areas • Footnote: state held it violated state constitution: warrentless entry not allowed unless officer has specific facts justifying entry (fear of safety. police therefore had authority.D. gave police reason to be suspicious. valid search. can search prior to arrest. there was struggle. Blue. after arrest of individual o MAJORITY VIEW Unites States v. Valid arrest with warrant • Police may conduct limited entry to protect safety of defendant. police was in door way. his I. must look at case by case basis. were allowed to look in. went with him. officer entered room and noticed drug paraphernalia. Chrisman. therefore not a valid search .• o Other. Butler • Arrestee not wearing shoes. saw roommate was nervous. combined factors gave police sufficient concern for warrentless. but after defendant was in squad car o b/c rifle had been in close proximately at time of arrest. though the police had ordered defendant to go back into trailer (was not merely to create circumstances to conduct search) • Other case: no safety when defendant does not want more clothing and is wearing a swim suit An arrest leading to exigent circumstances • Supreme Court Held. arrest • ISSUE: did officer have right to enter room • RULE: allowed to enter room at any time (b/c suspect was under arrest) officer has authority to remain at suspect’s “elbow” at all times. found illegal guns.

searched defendant next morning) this is fine. could conduct full search for either safety OR to find evidence (unlike Terry) Custodial Arrests for Minor Offenses Atwater v. however (Robinson) we will not have a sensitive case by case rule. Misdemeanor. is simply not incident to arrest. they authority to search o The arrest cannot be based on what they find o Therefore as long as they had grounds for making arrest. reasonable to believe when someone is arrested immediately in front of home. Here there was still relevance to searching him (looking for paint chips) Searches of the Person Incident to Lawful Arrest United States v. 308 • Kids in front seat of car not in belts. p. opens it up. o Vehicle impounded.302 • Basic Rule: time and spacial limitations • Court held: once defendant is arrested & under custody. no longer incident to a lawful arrest • Edwards Case: (arrested in middle of night. search and seizures that could be made on the spot during the arrest may be legally conducted later at the station. City of Lago Vista. and they will try and destroy the evidence Protective Sweeps After an Arrest • If there is reasonable suspicion that area harbors danger to officers. could not tell what it was. only for areas where there may be areas hidden Temporal Limitations on Search & Seizure with Arrest • “Search indecent to valid arrest” • Search can be after arrest. Robinson. was cigarette pack. or open it up • Because officers had probable cause. 303 • Police had probable cause to arrest. is simply not incident to the search made at another place. cannot pull it out of coat unless there is reasonable suspicion that it is a weapon. as long as in short time period • If police have probable cause or arrest warrant. there is heroin inside • If this is a Terry Frisk.• • Exigent circumstances allowed: o A reasonable belief that 3rd persons were inside a private dwelling AND o A reasonable belief that these 3rd persons are aware of an arrest of confederate outside the premises so that they might see a need to destroy evidence Case: large scale drug operation in home. without a warrant. punishable by fine. there is someone else inside the home. warrentless arrest or citation permitted by statute • Mother was arrested • Sued under civil rights statute: 4th amendment right against unreasonable searches • Defendant o Argues historical facts  Court concluded: custodial arrests are reasonable for warrentless misdemeanor (in all 50 states o Argues for “moderate arrest rule” (case by case look at reasonableness)  Though court clearly Atwater has a case. . feels object. obvious gratuitous humiliation. without warrant cannot justify search. the order is not important Removal from Arrest Scene. they do not need probable cause. they conducted pat down.

because individuals were outside of car during search o Whether safety or to obtain evidence. United States • Police officer suspicious b/c car refused to pass him. he may. was incorrect. simple rule that can be applied without judicial second guessing) Claims not a problem because no other cases like this have come to them Other remedies: states can limit this through statutory. [distinguish: last class. was allowed (Robinson). the lawful scope of search within a car is o Chimmel: may not extend beyond area immediately within arrestee’s control \\ o There is no brightline rule for what “area immediately within arrestee” o HOLDING: when a policeman has made a lawful custodial arrest of someone who is a recent occupant of a car. search the passenger compartment of that automobile.     Court holds that their role is to apply brightline rule (clear. may be searched regardless of whether it is open or closed. because if area is within the reach of arrestee. cannot search closed containers during arrest in room] Defendant has no privacy interest in contents of any containers in passenger compartment. no rationale for this because no one was in car during the search • Supreme Court o When lawful arrest. Belton. cannot be accessed. not necessary here RULE: if officer has probable cause for an arrest. as a contemporaneous indicent of that arrest. hence search no allowed o Defendant 30’ away from car at time of arrest. smell marijuana gives probable cause to make arrest. but not the trunk Problems After Belton: The Arrestee’s Relationship to the Car • Does Belton apply when person is arrested away from car? o Police officer arrest defendant after he had walked away from car o Then searched car and found gun o Holding: Belton limited to search of passenger compartments after arrest of an occupant of a vehicle. Thornton o Whether Belton is confined to when police initiate contact with person while inside car o Court upheld search of car when defendant arrested in close proximity Thornton v. such as misdemeanor committed in front of officer regardless of whether the offense is jail able. the officer can arrest. (officer is not claiming reasonable suspicion). after suspect parked and get out of car. only necessary to give a new doctrine of constitutional law when there is a certain quantum of cases. it was not extraordinary for 4th amendment purposes Arrest Power Rule Applied to Automobiles NY v. Though this arrest was humiliating. civil rights claims for excessive force in a arrest. not within grab area • US v. rule does not apply (see footnote)] • May search entire passenger compartment and all containers within. patted down suspect. ran plate. • NY Court Appeals o No grab area rule applies. officer went to talk to him. 315 • At issue: could police check inside jacket that is in back seat of car • Defendant was pulled over with reasonable suspicion. Police may also examine the contents of any containers found within the passenger compartment. The standard of probable cause allows arrest in absence of warrant if crime is committed in present of officer. so also with the contents of containers. o Trunk of Car: distinguished. officer asked to .

Iowa. therefore the search is justified As long as police have probable cause for arrest of someone in car. more analogous to a Terry Stop/Search. legal as long as defendant has been in car recently o In Chimmel. o (Robinson Case) Rationales that permit search incident to lawful arrest (safety and evidence) • Safety does not apply to citation case.C. even if they have arrested if they had issued citation . conducted full search of car (no consent) this is at issue • Statute o The decision by officer who has authority to either arrest or give citation: if officer decides on citation.C. suspect said yes (probable cause). searched vehicle and found a gun (at issue) Although Belton was not restricted to the person being in the car. need for clear rule easily understood by police. it was where the suspect was an occupant in the car during the initial encounter 4th Circuit o Defendant was in close proximity. may search even if the arrestee is not in the car. not yet in handcuffs. As far as evidence there is no more evidence to be obtained in a speeding ticket citation • If police are not satisfied with identification they can arrest. officer goes into to car for safety/evidentiary concerns) therefore what different would it make if they waited • The search is not a right of the government. they are still authorized to conduct search they would be authorized if officer had arrested defendant • Iowa S. 322 • Defendant was driving 42 in a 25mph zone. but an exception  These searches are reasonable in general o Does not view Belton as an extension of Chimel. o Allowed as long as arresting officer had probable cause • S. chose not to). arrested suspect & placed him in patrol car. or if the person is already out of car when police arrested him The Arrest Power Rule Where No Arrest takes Place Knowles v. because of probable cause o Here no arrest. we allow search of grab area after suspect has been removed o Also. therefore no extension of Robinson: search was unlawful • No authority to conduct search incident to a citation. but instead as authorizing broader search incident to arrest because cars represent a reduced amount of privacy and broader law enforcement needs o It is reasonable for office to believe pursuant to an arrest that there are narcotics in the car. (pursuant to Iowa law officer was able to arrest. officer issue citation.• • • • • pat down. asked again if suspect had drugs. consent. outside of car o therefore. felt bulge in left pocket. Belton pertained to immediate control (grab area) Supreme Court o The entire basis that justifies Belton is  Safety of officer  Destruction of evidence o in both cases the search takes place after suspect is under arrest. we do not want to require a rule that will require officers in the field to estimate Scalia Concurring o Rejection of 3 rationales for majority opinion  Defendant could have escaped and gotten gun out of car  Because officer could have done it at the time of the arrest (def.

turned without signaling and sped off at “unreasonable speed”. regardless of police’s subjective intent Plain View Doctrine Coolidge.Pretextual Stops and Arrest • They are not conducting search or stop for reasons that they are stating. United States. it would allow police to skirt warrant requirement altogether • Supreme Court . car had temporary license plates and “youthful occupants” . acting responsibly. • Supreme Court o Rejected argument o If officer has probable cause to pull over suspect for A. identifies himself as police. they were justified o Court views Race as an equal protection issue. they also had an interest in weapons o Supreme Court: was not an inadvertent discovery. officer claims he stopped car to give warning about potential traffic violations • (paragraph. and object is admissible as evidence • If the officers have a right to be in a particular place and come upon evidence that they have probable cause to believe is subject to seizure. in process of looking for rings. saw bags of crack cocaine. that is okay. 334 • Court issued warrant specifically for search for proceeds of the robbery (rings) but not for the weapons of the robbery. it was pretextual. found weapons • Though they intended to find rings. the may seize it Horton v. violation if temporarily detain driver. not a 4th amendment issue • As long as probable cause (civil traffic violation) then there is no 4th amend. right column on p. police officer stops them. would have made the stop for the reason given. and finds probable cause to arrest for B. (scope of search) • During search. arrested everyone • At issue: when officer initially approached car did not have reasonable suspicion of a crime. Police using their authority to search for minor crimes to search for major crimes Wren v. As long as officers objectively had authority to make stop. then the object can be seized. stayed in intersection “unusually long time” (20 seconds). distinguished from all previous plain view cases where police inadvertently found evidence • Supreme Court distinguishes between a possessory interest in seizures and a privacy interest in searches o Once you are dealing with plain view. 325) o Proposed standard by defendant • Whether the police officer. 324 • Plain clothes Officer patrolling high drug area. you are no longer searching o Justice Stewart’s 2 limitations of plainview  Plain view alone is never enough to justify the warrantless seizure of evidence  The discovery of objects in plainview must be inadvertent o Justice Stewart is concerned that if plainview doctrine is extended farther. officer called in the truck. police. as long as objectively it is allowable. 334 • Stands for proposition that if it is in the plain view of the police officer. California.

felt like crack cocaine o If they are touching an object/person in a way they are permitted to. Acevedo. Δ went to apartment. if the object is contraband. even though no arrest has been made  Must have probable cause for search o (this is separate from search incident to a lawful arrest) o Rationale: car is movable Mobile Containers in Car California v. there has been no invasion of suspect’s privacy beyond what has been authorized. 351 • Facts: DEA interception of drug package. pick it up to see serial number. had reasonable suspicion.• • o They do not want courts to investigate subjective goals of police officer. then if they discover object. it is okay Plain view applies even if discovery of object is not inadvertent Probable Cause to Seize an Item in Plain View: Arizona v. Man picked up package & drove to his apartment. if rings had been found the search would have stopped o As long as the police activity can be viewed objectively as furthering aims of warrant. prefer an objective rule o Holding: rejects the implication in Coolidge that a plain view seizure must be inadvertent o If plain view  police have authority to seize the doctrine This case. discovered it was stolen • Police still lacked probable cause for a search • Had to manipulate to determine they had probable cause. Application of holding to facts o Scope of search was not enlarged. the plain touch authority  have probable cause to conduct actual arrest (and search pursuant to arrest) Automobile Exception • Carol v. • Officers were not permitted to perform additional search o Must have probable cause to search item that is in plain view in order to determine if they seize item o Plain view does not include pick up/lifting an object without probable cause of search warrant to look for this object Plain Touch Doctrine (applies to Terry frisks) • Dickerson Case • Terry Stop and Frisk o Felt bulge. Hicks • Came into apartment. left with bag (size of . & discover/determine that individual has drugs. its warrantless seizure would be justified by the same practical considerations that inhere in the plain view doctrine o Plain touch was not applicable in this case  Went beyond scope allowed in Terry Frisk  By pushing and prodding after concluding it was not a weapon (not authorized by o If police conduct valid terry frisk. so long as they have probable cause to believe it contains evidence of criminal activity. not probable cause to believe stereo is stolen. agent went to Fed Ex office to arrest person who is to pick up package. it is seizable o However here officers went beyond permitted scope o If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose identity is immediately apparent. United States o Can search a car without a warrant.

but not probable cause for entire car Holding: to avoid confusion. can search home without a warrant Hot Pursuit (362) • unrealistic to try an obtain warrant • hot pursuit does not apply where suspect does not know he is being pursued • OJ Simpson Case: exigent circumstances because of belief that people at Simpson’s residence may be in danger o Exigency determined at time of police action. not in hindsight Prohibiting Entry While Warrant is Being Obtained Illinois v. Fearing destruction of evidence. but not rest of car (overruled by this case) Ross o Rejects Chadwick. one police officer went with wife to get warrant while the other officer informed husband he must remain outside trailer or policeman step inside (2 hours) . police can examine packages and containers without individualized probable cause for each one (capable concealing object of search) Exigent Circumstances Exigent Circumstances Exceptions to the Warrant Requirement [search or arrest] (361) 1. MarcArthur. when the have probable cause to search sack. opened trunk. applying automobile exception. Delayed searches of containers. but to search need warrant Sanders o Probable cause for suit case. but search does not need to take place immediately • Can conduct delayed search of car. even if probable cause only extends to object inside car o Police may search entire automobile (including trunk) and the containers within it where they have probable cause to believe contraband or evidence is contained. plice stopped him. destroy evidence still need probable cause if exigent circumstances & probable cause. use weapons 3. 357-361 • Court will not extend indefinite retention of vehicle.• • • • • marijuana package) put it in trunk and drove. p. she informed them her husband had drugs inside. (354) o Police can search entire car (and therefore search inside sack). 375 • Police were at residence while wife moves out. but not indefinitely Search of Passenger’s Property • Passengers also have reduced expectation of privacy within a car • When there is probable cause to search for contraband inside car. court concluded that based on only probable cause police can search entire car including packages inside car Issue: o Do police need warrant to open sack in vehicle. found drugs Chadwick o Movable footlocker is seizable because it is movable. escape 2.

upon reasonable suspicion. the primary goal is not obtaining evidence for criminal prosecution but on safety. was it reasonable? o Police action was Reasonable. he would suspect an imminent search)  Police made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy • Did not search or arrest. without warrant not authority for seizure US Supreme Court o Framework: dealing with a seizure. need probable cause/warrant • Safety Inspections of Homes o Court views this as a different type of interest. searched. Searches of Special Need Special Needs Search (379) • Involves balancing. probable cause & warrant & reasonableness required. o Need of search o Degree of invasion • If the purpose is merely to attain evidence for criminal enforcement. under 4th. therefore general dictates of 4th do not apply in same way o Camara Case  Warrant is required. seizure was not per se unreasonable because there was no warrant. found drugs. was reasonable. instead must balance law enforcement’s interest & privacy concerns. but do not need warrant based upon a finding of probable cause for particular home (enough if it is in compliance to a reasonable administrative scheme)  Instead warrant can be issued upon a finding that a search is in compliance with a particular administrative scheme  No need for warrant in emergency situations • Warrants Without Probable Cause o Griffin  (probational search)  Cannot issue warrant for anything less than probable cause  A warrentless search of a probationer’s home. 4 rationales  Police had probable cause  Good reason to believe evidence would be destroyed • Circumstances (serious dispute between husband & wife.• • • • • Police had probable cause (had spent time with wife. of a probation violation is allowed (reasonable administrative scheme) . at trial defendant claims that had he not be restrained he would have destroyed drugs (fruit of unlawful police seizure) Keeping defendant outside trailer was seizure. found her info. o Under the Court’s view. convicted. used less restrictive restraint • Degree of invasion of privacy was less restrictive • Only kept defendant outside  Imposed restraint for limited period of time (2 hours). trustworthy) Officer has restrained movement of defendant Warrant came. reasonable needs analysis. used diligence in getting warrant  Allowed because materials were feared to be destroyed o Segura Case  Temporary restraint is permitted for purpose of preserving evidence Administrative Searches.

382 • Search by police of junkyard conducted under statute authorizing search • Statute allows police to inspect this type of business. where privacy interests of owner are weakened & governments interests are heightened. • It must limit the discretion of the inspecting officers o Colonnade-Biswell Doctrine  Less expectation of privacy in a closely regulated industry  Essentially defined by the pervasiveness and regularity of the federal regulation  And the effect of such regulation on owner’s expectation of privacy  Also the duration of the scheme is an important factor o Application of those criteria to the case  Car junkyards qualify as closely regulated industry because it is still a new industry. Checkpoints. Permanent Checkpoints . may still search car I. and Suspicionless Seizures (p. Individual Stops without Suspicion i. during regular business hours at police discretion (scope) • Final Issue: NY Ct. must be reasonable o However.  limit the market for stolen cars  The statute provides a constitutionally adequate substitute for a warrant • Statute informs owners inspections will be made on regular basis.  As long as regulation is valid.Administrative Searches of Businesses New York v. Not allowed against individual ii. Burger. set procedure for police to adhere to. a warrant or probable cause not required o Expectation of privacy on commercial premises is different from home. Roadblocks. of Appeals: o Held that it was a pretext in first place. not an attempt to regulate. and guidelines are appropriate b. absent of which is a crime • Supreme Court o 4th Amendment still applies. but second hand stores have been around for long time and have been regulated for long time o Application of Factors  State has substantial interest. a warrantless inspection of commercial premises may be reasonable under 4th o Must have 3 factors to be reasonable (in pervasively regulated industry)  Substantial government interest  Necessary to further the regulatory scheme  State’s inspection system (in terms of certainty & regularity) must provide a constitutionally adequate substitute for a warrant • Advise owner search is being made pursuant to law and has properly defined scope. and when they do. but for criminal investigation o Supreme Court  A State can address a major social problem both by way of an administrative scheme and through penal sanctions. 420-436) a. • Vehicle theft has increased. on. Police discretion vs. may also serve criminal enforcement purpose  Police can stop car for traffic violation. the owner must provide records. this expectation is particularly attenuated in commercial property employed in closely regulated industries o in situations of special need.

i. Issue: is this legal? b. Court distinguishes between broad law enforcement activity and what the primary goal is g. 4th Amend i. City argument for highway safety i. suspicionless roadblock check on military installation • Also emergency roadblocks to catch dangerous criminal (sniper) After Edmond • Courts have upheld checkpoints where the secondary purpose has been drugs. police had no leads or information on) . Lawfull secondary purpose i. special need beyond law enforcement ii. space to pull car off road 4. City’s argument: anytime police make a stop. There is set in advance procedures for police to follow 1. they are looking for criminal activity i. Holding: no c. Need probable cause and individualized suspicion. permissible because primary goal is safety issue d. Allowed. set pattern to stop (?) II. All exceptions are distinguished because this case was only looking for ordinary criminal activity. Lidster • Checkpoint to obtain information about a crime (hit and run on same part of road a week earlier. Not as if they are being stopped individually: less likely to be afraid iii. can only uncover illegal contraband f. City argument: balance based on gravity of threat i. safety of location 3. Checkpoint to ask for license and registration 1. drunk drivers represent a present. more specific concern i. Temporary Checkpoints to Check for DUI i. while all other exceptions had primary goal not to detect ordinary criminal activity iii. however many exceptions ii. Not applicable here because expressely distinguished cases of search in absence of probable cause j. Court says gravity of the threat is not dispositive. Not enough Terrorism Checkpoints • Have been upheld: ex. Whren Case(437) i. Checkpoint for finding drugs different from border checkpoint because acute need for public safety. DUI checkpoints primary goal is road safety 1. h. immediate vehicle-related safety issue iv. For driver 2. state interest in stopping illegals. Allowed. as long as primary purpose was special needs beyond law enforcement • Roadblock in response to community complaint that drug dealers were driving dangerously was upheld Suspicionless Checkpoints to Obtain Information About a Crime Illinoise v. Drug Checkpoint: Edmond Case a. Only look at objective not subjective intent of police ii. dog sniff not a search. and minimally intrusive c. stopping vehicle is seizure e. minimal incov.

502  Federalism: favor of state power Arguments for and Against the Exclusionary Rule p. but instead questioning individuals over crime of which government has substantial interest o Will still provide an important legal limitation on police use of this kind of information-seeking checkpoint o Balancing of public concern (finding person who committed hit and run) on balance was reasonable REMEDIES FOR 4TH AMENDMENT VIOLATIONS Exclusionary Rule Mapp v. p.504-507 • Rather than excluding the evidence and setting the criminal free. Ohio. or worse. (incorporation doctrine) • Mapp v. Ohio o Issue: if Wolf follows the incorporation doctrine. then need individual suspicion This case o Not a suspect. how the 14th amend.• • • Court emphasized that we look from the individual that is stopped o If they are being stopped for a crime. due process. rather than punish society • Another legal scholar: illegally obtained evidence should be relative to the sentence . its disregard of the charter of its own existence o Footnote. won’t have checkpoints everywhere) Holding o Checkpoint not per se invalid under Edmond (distinguished from Edmond) o Reasonableness analysis  Gravity of the public concerns served by the seizure  Degree to which the seizure advances the public interest  Severity of the interference with individual liberty • Police were not interrogating individuals. it is an “empty promise” o Cardozo Quote  Under exclusionary rule: the criminal is to go free because the constable has blundered o Court’s Response  Imperative of judicial integrity  Nothing can destroy a government more quickly that its failure to observe its own laws.) does violate the 14th amend. does this include the exclusionary rule? o Was let to play out in state courts before this case o Now Supreme Court holds that exclusionary rule applies to state law as well  Only effective way of enforcing the 4th amendment  Without. barred the use of evidence secured through an illegal search and seizure in Federal Prosecution • Wolf Case o Prohibition against unreasonable state search and seizure (under 4th amend. one legal scholar proposes civil remedies (the enforcement agency or the officer himself). incorporates the 4th amend. 500 • Suppression of the evidence does apply to violations of the 4th amendment • Weeks Case o For the 1st time. not being investigated personally o Court not concerned that allowing this will proliferate it everywhere (particular hit and run.

here a visitor does not have expectation of privacy • MN Supreme Court o Reversed. 523-29 • Individual claiming violation of the constitutional right must be claiming a violation of their own right(s) • Federal court is not authorized to exclude otherwise admissible evidence on the ground that it was seized unlawfully from a 3rd party not before the court Presence in the Home of Another (view as an exception to exclusionary rule) Minnesota v. has connection to owner of home. observed bagging of cocaine. then suspect can have any evidence obtained as a result of invalid arrest excluded Brown v. pursuant to exclusionary rule the evidence is out • Supreme Court o To have standing.Targets without Standing. therefore it is excluded • If arrest is improper. standing because defendant had expectation of privacy as a legitimate expectation of privacy o The conduct was unreasonable and without warrant. Factors to look at (p. p. Illinois. • Overnight guest would have standing • Analysis of the word “their” in constitution (in their homes) o Marked in case • Justice Breyer. Concurring. defendant must (Katz Case) have an expectation of privacy. An overnight guest is there for social purpose.525) o Was it purely commercial nature o Relatively short period of time (2 ½ hours) o Not a social nature o Significantly lacked any previous connection between respondents and the householder • If just a temporary visitor. therefore based on Mapp v. p. any evidence obtained as the result of illegal police search is fruit of the poisonous tree • Olson Case & MN Court o Overnight guest is entitled to expectation of privacy. Obtained search warrant. and is there for purposes closer to have a reasonable expectation of privacy. more like a temporary visitor than an overnight guest o Therefore defendant had no standing to object • Not always clear whether a guest as standing. they are no way similar to the owner of the home. and the expectation must be reasonable o No expectation of privacy. 528 o Did not trigger the fourth amendment in the first place • Ginsberg Dissent When the 4th amendment violation Produces Evidence • Fruit of the poisonous tree: without misconduct. An owner has an actual and reasonable expectation of privacy in their own home. Issue of Standing. then searched apartment pursuant to warrant. 535-529 . Defendants were not residents but visitors to the apartment • At issue: standing outside and looking in window crack: is this a search? o Defendant argues this was a search. Carter 523 • Officer looks in a gap in closed window blinds. there would be no evidence. searched car after suspects left in car and found handgun in plain view. OH.

and therefore was attenuated  Because of several day gap. Then read Miranda Warnings and confessed. 550-552) • Independent Source Rule • Police illegally entered building. and letting defendant go free were significant events in Wong Why is purposeful misconduct a factor? Continued. not fruit of the poisonous tree Arrest without probable cause. not suppressed. Exceptions to Exclusionary Rule Murray Case & Nix Case (544-549. and voluntarily came back. confession may be voluntarily. Miranda Warnings are not enough o Must look at totality of circumstances. no longer fruit of the poisonous tree o Was the obtaining of evidence so far removed from misconduct that it should not be excluded. both are suppressed o It may be true that if someone is arrested illegally and giving Miranda warnings. therefore both are fruit of poisonous tree. Defendant argues for suppression of confessions because fruit of unlawful arrest (arrest without probable cause) Trial court. However. the decisive issue was not that he made statement involuntarily but the degree the confession was removed from illegal arrest o This case  First confession was not voluntarily.• • • • • • • Arrest was unlawful. enter warehouse . then when he confessed had no 5th amend. violation o Confession was pursuant to an illegal arrest o Isseue: is it fruit of the poisonous tree Issue: Doctrine of Attenuation o State of causation: if confession is sufficiently attenuated form illegal arrest. sought search warrant. and 2nd confession is merely a result of first confession. it is separate issue whether the statement is fruit of illegal arrest o Court rejects per se rule of a “but for” scenario  Therefore attenuation can exist o Factors for Attenuation (p. then legally searched and obtained evidence • Saw motorists with large containers. conviction Ill. Supreme court o No probable cause o Was there attenuation between illegal activity (arrest) and evidence (confession)? o Ruled there was attenuation because  Miranda Warnings broke the chain  Amount of time between two confessions (7 hours) Supreme Court o Reversed. was taken to the police station. person had been released. 537)  Miranda warnings (not mentioned by Levine in review)  Time between arrest and confession  Presence of intervening circumstances  Purpose and flagrancy of official misconduct • Burden of admissibility is on the prosecution o P. read Miranda rights. including Miranda Warnings o Wong Sun Case (537)  Came to police station several days later. 538 footnote  Temporal proximity.

without unlawful conduct. and were arrested o Vehicles lawfully seized Key police activity at issue (need to do this on exam) o Police force entry into warehouse without exigent circumstances or warrant o Observed bales of marijuana o Was in plain view Warrant application for search warrant o Did not say they entered illegally o Did not include information they learned from illegal search o Warrant was granted by magistrate on probable cause After getting warrant. found z unlawfully. must discuss both as a part of the rule of independent source test. performed legal search and seizure If info from illegal search was used to obtain warrant. would be fruit of poisonous tree. o Would the police had sought the warrant if they had NOT entered illegally before hand? o Not independent source if. and excluded Segura Case (544) o Police officers’ illegal entry upon private premises did not require suppression of evidence subsequently discovered at those premises when executing a search warrant obtained on the basis of information wholly unconnected with the initial entry o Need untainted source Application of Segura o If police unlawfully obtain x and y o Police lawfully find z  Z is admissible o This case. in exam. then found z lawfully (independently) Application of Nix o Cannot use exclusionary rule to put police in worse position or better position o Inevitable Discovery assumes that independent source rule exists Ultimate question: whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. think of as 2 prong test Dissent o Fear of confirmatory search before getting a warrant o Affirmative incentive with this rule to engage in this type of behavior Nix (550-551) • Inevitable Discovery Rule • Ongoing search called off when police unlawfully got suspect to show police where body was.• • • • • • • • • • • Other drivers took truck. would not have applied for warrant Ultimately remanded for district court to conclusively consider this o Police claim that they illegally entered to prevent destruction of evidence o Must demonstrate that they would have and could have sought a warrant without illegal entry  Two bolded sentences. had search continued it was nearby and would have inevitably discovered body • The doctrine o The government must prove by a preponderance that the challenged evidence would have been discovered through independent legal means • Rationale .

and that good faith is reasonable. or that extreme sanctions are required o No basis for believing that exclusion of evidence will have a significant deterrent effect on the judge or magistrate  They have no stake in outcome of particular criminal prosecutions • Rationale o Should not put penalty on officer for magistrates error.• o Put police back where they would be without illegal activity. was a totality of circumstances test • 6th amendment appears to only apply to accusatory state . 567-576 • Good Faith Exception • If police rely. cannot logically contribute to deterrence • Must be an objective. to apply exclusionary rule would have put police in a worse position o Exclusionary rule cannot be used to punish the state in that way Had the police never obtained the illegal confession. not in a worse or better position. the body would have been discovered anyway (in a short time) United States v. in good faith. Leon. reasonable good faith • Suppression appropriate if officers were reckless or wrong in preparing application for warrant • Footnote h: State supreme Court declined to adopt good faith exception 5th Amendment Limitations on Confessions • Read intro before case • Before Miranda. good faith reliance on a search warrant that is subsequently held to be defective (legal question) o Inquiry if police acted in good faith by district court accepted by district court (factual question) but found by district court to be unimportant o Court of appeals affirmed • Nature of governments petition for cert o There should be a good faith exception for invalid warrant o Did not challenge probable cause issue • Cost Benefit Analysis o Goal of exclusionary rule is a deterrent  Goal is not to ensure improperly obtained evidence will not be used o Framing of issue  Weighing the costs and benefits of preventing the use in the prosecution’s case in chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant issue by a detached and neutral magistrate that is ultimately defective o When law enforcement has acted in objective good faith or transgression is minor. found to be insufficient for probable cause • District Court asked for Review of : o Whether the 4th amend exclusionary rule should be modified so as not to bar the admission of evidence seized in reasonable. in trial court. on a faulty warrant. the evidence is admissible • At issue: the affidavit the warrant was based on was. magnitude of benefit conferred on such guilty defendants offends basic concepts of criminal justice • 3 reasons for good faith exception o Exclusionary rule designed to deter police o No evidence suggesting that judges are inclined to ignore or subvert 4th amend.

must stop o Burden on people to show intelligent and knowing waiver of these rights • P. equally destructive of human dignity • Safeguards Insisted Upon by Miranda Court Custodial Police Interrogations Require: o Right to Remain Silent (in clear and unequivocal terms) o Anything they say can be used against them in court o They have right to counsel present o if they cannot afford counsel it will be appointed to them  once a defendant wants a lawyer.705 Effect of Miranda • P. held that 3501 made confessions turn solely on whether they were made voluntarily. based on Miranda o Circuit Court: (interlocutory appeal). Miranda was not a Constitutional holding. United States. ect. investigator has all the advantages  Goal was to make individual uncomfortable. court knew this would change how police interrogations were conducted • Miranda: indigent Mexican • Stewart: indigent. on scene question is still allowed. intelligently and voluntarily waived o If at anytime defendant asserts any of these rights. therefore Congress can supercede it o Instead. make suggestions to defendant psychologically vulnerable o Intimidation factor  Though not physically intimidating.706. then not admissible  Waiver: heavy burden for government to prove that defendant knowingly. to eliminate pressure not confessions p. Arizona. p. o In office. 708 Miranda Compromise • Defendant may still waive any of his rights Did Congress Overrule Miranda? Dickerson v. will not prevent questioning. or prevent confessions from being used. more reluctant to confess. reversed. realize they are not in control o Tactics designed to cast blame on victim or society. with 6th grade education o Records did not evince overt physical coercion or patent psychological ploys o However.694 Top: As a practical manner this is compulsion • P. 692  A person knows their own rights within their own home. 698: decision not meant to hamper police.• • b/c it begins “no person shall be held” Miranda was landmark because it applied to any custodial interrogation of the subject Miranda v. Miranda is a suggestion of guidelines of best way to ensure voluntariness • Statute 3501 . questioning must cease.693. unconfident. p. if it does not. by nature of setting gives questioned to whether the confessions were voluntary • Court examined officer’s manuals o See quote on p. 710 • At Issue: was Miranda superceded by a Federal Statute • Procedural History o District court granted motion to suppress. 690 • P. assume the individual is guilty.

which defendant then discussed • Did not waive his Miranda warnings (was not sufficient) • Therefore. is any legislative response be as effective in preventing coerced confessions (Cassell.• • o Own method of best way to ensure voluntariness o P. evidence is suppressed • (no opinion of the court) (plurality opinion) o If lower court had exact same scenario. carries its own exclusionary rule: cannot use testimony in court  Therefore. must follow o Otherwise. are they suppressed? (actual statement is suppressed) • (also. 713)  Statute is not sufficient  Not an adequate substitute Exceptions to Miranda • Physical Evidence as the Fruit of a Miranda Violation United States v. p. Opinion does not find it compelling to exclude (was voluntary. the evidence at issue is physical evidence o Not a situation itself was involuntary. 711: congress retains ultimate authority over any rules of evidence and procedure not required by the Constitution. started to read him Miranda warnings. statement was voluntary  different from situation of coercion. 61) . the 4th had no exclusionary language  Language of 5th amend. violation of Miranda • At Issue: fruits of statement. defendant stops them and says he knows his rights. Officers question defendant about gun. Appellate Ruled there was) • Court’s Analysis o 5th Amendment: no person shall be compelled to be witness against themselves o Only applies to testimonial evidence. was not a confession be excluded) o Self-Incrimination Clause of 5th amend. at issue was there probable cause. Patane Supp 57-64 • Miranda does not require exclusion of evidence from voluntary statements without Miranda o If involuntary. and does not limit exclusion of evidence obtained o Dickerson Case  Need for closest possible fit (p. 712: no constitutional rule is immutable o All that is necessary to comply with Miranda. specifically limits exclusion of statements. unlike 4th amend with general exclusionary rule.  Language of amend. o Congress cannot supercede Supreme Court decisions interpreting and applying the Constitution o Therefore at issue is whether Miranda announced a constitutional rule or was a regulation of evidence in absence of congressional direction Holding o Miranda was a constitutional ruling that could not therefore be superceded by Congress Arguments against Miranda o Miranda as prophylactic measures  Consistently held in state cases o There are exceptions to Miranda  Modification over time is not unusual for a Constitutional rule  P. no other binding holding/precedent • Facts o Arrested for violating restraining order.

Missouri: where interrogation continuous. 64-76 • Woman was interrogated without Miranda (those statements suppressed). confusion over what they say can be used against them  If suspect could not understand the protection that Miranda gives o Threshold Issue: would be reasonable to find that in theses circumstances the warnings could function effectively as Miranda requires  Ineffective in preparing suspect. that was not coerced (what this case is applicable to) Kenney/O’Conner Concurrence o Do see other situations necessary to suppress Dissenting o Inherently coercive character of warning-less interrogation o Although they recognize problems of exclusion. it is therefore a product of the first. concern this is a widespread intentional practice  Goal to make Miranda ineffective o Suspect would not actually believe they can remain silent.• • • Suppression is not the only possible remedy for any constitutional violation Not automatic. reasonable person could see distinction (different time. get around Miranda • A reasonable person could not have made an informed choice about whether she should continue to talk. immediately afterward was read Miranda and they confronted with suppressed statements. then given warnings and confessed again  Distinguish: • No deliberately coercive or improper tactics • Questioning in station house was different from questioning in home. and if under the language of amend. proper to exclude if evidence is from statement admitted at trial A voluntary statement without Miranda warnings. instead closest possible fit between remedy and violation which is • Not permitting confession to be used • Not permitting to force defendant to testify o Miranda and 5th amend. nothing was said to counter an misimpressions. is necessary where clear violation of Miranda   The Fruit of an Intentional Miranda Violation Missouri v. seen as one continuous situation from perspective of suspect. Elstad  Confessed without any warnings. place) • This case: only 15-20 minutes in between. suppression is not required. Is this to be suppressed? (Yes) • Trial Ct. close in time and similar in content o MI Argument: Oregon v. therefore suppressed • US Supreme Court o Intentionally action by police to avoid the needs of Miranda o Situation presents new challenge to Miranda. not informed that first confession could not be used against her. admitted • Supreme Ct. Seibert Supp. could not have realized that anything they said before could not be used against them . thereby making the Miranda warnings ineffective. only protect trial rights. the goal of the method used was to confuse suspect.

however defendant’s statements taken without counsel present cannot be used at trial • Quote. generally under 4th. Obtaining Information from Formally Charged Defendants Brewer v. and can be attenuated (other grounds the would allow police to question subject) then look at confession separately. Williams 778 • Suspect indicted. the government may not try to circumvent the protection afforded by presence of council during questioning. then took defendant to jail. right to counsel • This case applies the concept of above to challenge admissibility of a confession • Facts o Indicted. plead guilty. p. decide if Miranda allows confession in. United States 787 • Grand jury indictment against defendant. triggers 6th amend. got a lawyer. out on bail. Appeals) o Satisfied analysis of Elstad. read Miranda rights. told him they had a warrant and that he was indicted [formal charges. Elstaad (Ct. Police officers went to his house to discuss meth. If 4th amendment violation leads to interrogation. setting • Supreme Court .? • Investigation can continue after indictment. co-defendant agrees to wear a wire for police. right to council]. However. right to council present? • Waiver o Must be intentional relinquishment of right o Not present here • Was not deceitful as in Messiah o Regardless of nature of police. if no Miranda. 777 Higgenbotham o 6th recognizes once the government has brought formal charges… once an accused has chosen to retain an attorney to act as his representative. and how the girl deserved a Christian burial • Issue: was there a sufficient waiver of 6th amend. will be inadmissalbe but physical evidence in pursuant to confession is admissable The Massiah Rule Massiah v. different time. retained council both in local city and in the city of the charges.If illegal arrest. further statements taken • District Ct o Unwarranted statements were inadmissible under 5th o Statement obtained post-Miranda: • Oregon v. conversation admitted at trial • Issue: does this violate 6th amend. the information that is directly result of unlawful arrest is inadmissible under 4th. 6th Amendment Right to Counsel • If person is arrested (correctly or improperly). United States 775 th • Constitutional 6 amend. defendant has right to council unless properly waived Application of the Deliberate Elicitation Standard: Fellers v. Police elicited statements. lawyer specifically told police not to question suspect during transport & told suspect not to talk during transport o 116 mile trip. statements inadmissible as fruit of unlawful arrest. records conversation with Massiah. statements obtained with Miranda. under 5th. police began discussing weather.

may have been other considerations for witness to identify defendant p. 814.  court does not decided if Elstad rationale should apply. 811  Counsel should be notified. and the in court identification  Factors • Consider the relationship between pre-trial improperly identification and identification in court • Was the only reason the court I. and counsel’s presence should have b een a requisite to conduct of the lineup. absent an intelligent waiver. o Issue: what are the consequences?  Test: whether evidence to which instant objection is made has been come at by exploitation of the illegality distinguishable to be purged of the primary taint • Attenuation/independent source hearing: what is the relation between the out of court identification that violated 6th. p. line up performed without counsel present • May still offer incourt identification. therefore right to counsel over 6th amend. 819 • Improperly suggestive identification violates due process rights • Line up cannot be suggestive o Cannot be brought alone to be identified. court adopted a per se rule of exclusion Stovall. Gilbert Case • Out of court identification in the absence of counsel was admitted in prosecution’s case • Issue/Holding: in court identifications would be excluded unless they proceeded from a source unless they proceeded from an independent source of the tainted identification.821 • Permissible Suggestiveness Exception to Stovall .• o Miranda Analysis did not address 6th amend. made was because of the line up? If so. o as to out of court identifications.  No question police deliberately elicited information o b/c this is a 6th Amendment Rule. then in court id not admissible • On the other hand. issue o Deliberately elicited information obtained after indictment without council violates 6th amend. Wade 809 • Facts: bank robbery. such as substantial opportunity to view the perpetrator at the time of the crime.d. not the tainted line up • Supreme Court o Critical stage. still stands o Issue of identity may be determined there and then before the trial o Holding p. or in line up and the only one who looks like physical description of witness p. if there is evidence that the identification of witness is based on idnependant observation. the court remands it to lower courts to determine the issue fruit of the poisonous tree doctrine Identifying Suspects Identifications and the Right to Counsel United States v. fruit of poisonous tree analysis is different from 5th amend.

right to counsel and 14th amend. Brathwaite 824 • One on one id through photo • Admissible unless substantial likelihood of irreparable misidentification • If jury wants to consider evidentiary value in contribution to a conviction. likely the police actions are at issue o Was the police conduct in this particular state of activity constitutional? o Counter arguments: if one(s) exists  Explain them. Wainwright 844 th • Holding: 6 amend. do not try to create it o Distinguish between issues and non-issues • Consider the stages of police activity o Does it satisfy or violate an amendment o Do not focus on the criminal activity as much. than whether or not the identification is reliable is a question for the jury Gideon v. but that state must supply effective assistance of counsel Exam Itself • IRAC the essay • Rule as applied to the facts of this case/particular individual rule • Pay attention to analysis: o Articulate how you reached the conclusion o Include counter-arguments  Explain why court should not follow it o If there is no other side to the argument.o Confidential Informant needed to identify. court held okay was to protect innocent person o (exigency circumstances) o NY also protect showing on the street (allows them to quickly pursue other leads if not right person) Manson v. right to due process requires not only that a defendant has a right to counsel. jury has authority to not find it enough • Holding: reliability is the linchpin concerning (see p. email phone number and times to call . and their ramifications Office hours • Thursday (this week and next) • Friday • Over weekend: email o If extensive question. 826) • (do not need to know all factors) o As long as court can find they cannot say as a matter of law that there was a substantial likelihood of irreparable of misidentification. did not do full line up.

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