Criminal Procedure Outline

Table of Contents
Fourth Amendment.................................................................................................................2
Threshold of 4A - Evolution of the “Search” Doctrine....................................................................2
Katz v. United States.............................................................................................................................................3
Remaining cases attempt to flesh out the vague two-part Katz standard..............................................................3
Spheres of Protection........................................................................................................................4
Return of Traditional Trespass..............................................................................................................................6
Technology and Privacy Interests.........................................................................................................................7
Probable Cause.................................................................................................................................7
Informants’ Tips....................................................................................................................................................8
“Common Enterprise” Theory..............................................................................................................................9
Pretextual Searches...............................................................................................................................................9
Warrant Requirement....................................................................................................................10
Warrant Particularity Requirement.....................................................................................................................10
“Knock-and-Announce” Rule.............................................................................................................................11
Nature and Scope of Searches Without Warrants.........................................................................12
Search Incident to Arrest - Person.......................................................................................................................12
Search Incident to Arrest – Vehicle, Phone, and More.......................................................................................13
Exigent Circumstances........................................................................................................................................15
Vehicle and Container Searches.....................................................................................................17
Automobile Exception.........................................................................................................................................17
Contraband in vehicle (no container)..................................................................................................................17
Contraband in container (no vehicle)..................................................................................................................18
Contraband in container within a vehicle............................................................................................................18
Inventory Searches.........................................................................................................................19
Impounded Vehicles............................................................................................................................................19
Arrestee Booking Process...................................................................................................................................19
Consent Searches............................................................................................................................20
Co-occupant Consent..........................................................................................................................................21
Plain View Doctrine........................................................................................................................22
Review - Categorical Exceptions to the Need for a Warrant.........................................................22
Stops and Frisks..............................................................................................................................23
Scope of Seizures................................................................................................................................................24
Factors in Reasonable Suspicion Calculus – HCA, Anonymous Tips................................................................25
Scope of Terry Stops and Frisks.........................................................................................................................26
Terry and the Execution of Search Warrants......................................................................................................29
Special Needs Doctrine...................................................................................................................29
Higher than Usual Standards of Reasonableness................................................................................................32

Entrapment...........................................................................................................................33

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Due Process of Law and Confessions – coercions.................................................................33
The Miranda Doctrine: Privilege Against Self-Incrimination and Confessions.....................35
Public Safety Exception......................................................................................................................................35
Miranda Custody.................................................................................................................................................36
Miranda Interrogation.........................................................................................................................................37
Miranda Warning Requirement...........................................................................................................................38
For a Miranda waiver to be valid........................................................................................................................38
After Miranda Invocations..................................................................................................................................39
Contrasting Miranda with Terry..........................................................................................................................41

Sixth Amendment Right to Counsel.......................................................................................41

Waiver of the Right to Counsel...........................................................................................................................42

Identifications.......................................................................................................................42
Exclusionary Rule.................................................................................................................44
Standing Limitation........................................................................................................................45
Invitees – Standing..............................................................................................................................................46
Independent Source and Inevitable Discovery Doctrines..............................................................46
Attenuation Doctrine...........................................................................................................................................47

Fourth Amendment = “The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.”
- Only applies to searches and seizures
- If government conduct challenged on Fourth Amendment grounds  ‘threshold
question’ = whether the conduct constituted a “search” or “seizure”

Threshold of 4A - Evolution of the “Search” Doctrine

- Boyd v. U.S. (1886) – order to produce business invoices was a “search” because it was a
material ingredient and effected the sole object and purpose of a search, forcing from a
party, evidence against himself
- Olmstead v. U.S. (1928) – changed approach – wiretapping outside a building was not a
search, because no actual physical invasion or trespass upon a protected location
- Undercover agents – thru human being whom defendant foolishly trusted (“false friend”)
- On Lee v. U.S. (1952) – informant’s electronic transmission of statements to a
nearby LEO amounted to a search (NO 4A violation)
 Speaker “consented” to an informant
- Lopez v. U.S. (1963) – known IRS agent’s recording of a bribe offer was outside
Fourth Amendment territory because suspect had consented to the agent’s
presence in his office, and had taken the risk of recording/reproduction in court
(NO 4A violation)
- Hoffa v. U.S. (1966) – Hoffa allowed informant to listen. Unbeknownst to D,
associate was cooperating with the prosecution (no 4A violation)
- Electronic eavesdropping cases not involving “undercover agents”

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 - Goldman v. U.S. (1942) – gov’t placed a “detectaphone” against an outer wall
and listening to convos inside a building (NO 4A violation)
- Silverman v. U.S. (1961) – gov’t inserted a “spike mike” into a “party wall” and
picking up conversations passing through heating ducts (4A violation)
 Physical invasion was sufficient to cross constitutional threshold
- Clinton v. Virginia (1964) – Court found gov’t attached a listening device to a
wall causing “thumbtack-sized” penetration was a “search” (4A violation)

Katz v. United States (1967) (Revolutionary “search” case – sets rudimentary doctrine)
- Katz convicted of transmitting wagering information by telephone from LA-MIA-BOS.
- At trial, government introduced evidence of petitioner’s end of phone conversations,
overheard by FBI agents who had attached an electronic listening and recording device at
the outside of the public telephone booth where he was making calls (“bug”)
Issues
1. Whether a public telephone booth is a constitutionally protected area
2. Whether physical penetration of a constitutionally protected area is necessary before a
search and seizure can be said to be violative of 4th amendment
Majority Analysis
- Incorrectly framed: 1) Correct solution of Fourth Amendment problems is not necessarily
promoted by incantation of the phrase “constitutionally protected area,” 4A protects
people, not places, and 2) Fourth Amendment cannot be translated into a general
constitutional “right to privacy”
- 4A governs seizure of tangible items & extends to the recording of oral statements,
- HOLD: gov’t electronically listening to/recording Katz’s words violated the privacy
upon which he justifiably relied while using phone booth and thus was “search and
seizure”
Harlan Concurrence
- Twofold requirement (Katz Test)
- 1.) that a person have exhibited an actual (subjective) expectation of privacy, and
2.) that the expectation be one that society is prepared to recognize as
“reasonable.” [objective]
 A man’s home is where he expects privacy, but objects, activities, or
statements that he exposes to the plain view of outsiders are not
“protected” because there is no intention to keep to himself
 Conversations out in public are not reasonably expected to be private
Black Dissent
- 4A only refers to tangible objects, i.e. a trespass on physical property, not eavesdropping

Remaining cases attempt to flesh out the vague two-part Katz standard
United States v. White (1971) – “false friend”
- ISSUE: admissibility of testimony of agents conducting electronic surveillance, where
the informant is unavailable at trial
- Agents revealed to the government (Jackson) the content of the conversations.
- 4A does not extend to when your trusted colleague turns out to be working for the
government. Defendant necessarily risks trustworthiness

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 - HOLD: NO 4A Violation. No distinction between “tattletale” and the “transistor” – i.e.,
probable informers and probable informers with transmitters
- Did not overturn Hoffa, Lewis, Lopez line of cases
- since a police informant may write down records of conversations and admit them into
evidence without a warrant, electronically recorded conversations are no different, so
long as the police informant's actions are reasonable investigative efforts
- Harlan Dissent: still an invasion into privacy – we need self-restraint by law enforcement
and at least warrants

Smith v. Maryland (1979) – Whether tracking a pen register constitutes a “search”

- Trying to nail down a guy making threatening calls: The phone company (at police
request) installed a pen register to record the numbers dialed from Smith’s home. No
warrant or court order, but the register revealed that on March 17 he called McDonough.
Then obtained search warrant for his home.
- HOLD: neither part of Katz the test is satisfied
- Pen register was on phone company property, so he cannot claim his “property” was
invaded/trespassed, instead, he claims that government infringed on his legitimate
expectation of privacy
- In society, people don’t reasonably expect privacy in the numbers they dial, you
must know that the phone company can see this and keep records, i.e. for billing,
detecting fraud.
Stewart/Brennan Dissent
- The numbers dialed within the home should be within constitutional protection, much
like the conversations
Marshall/Brennan Dissent
- Even though we know internal company monitoring, it does not follow that people expect
this information to be made available to the public or the government.
- Making the risk analysis dispositive would give gov’t too much power
Notes: Modern Application
- 2014: NSA has been collecting the “telephony” metadata for an estimated 20 to 30 % of
all telephone calls made inside the United States for the last seven years.
- → numbers dialed and received, time, place, and date (not content)

California v. Greenwood (1998)

- NO 4A privacy interest in garbage left at the curb for collection
- “[T]he police cannot reasonably be expected to avert their eyes from evidence of criminal
activity that could have been observed by any member of the public.”
- Court emphasized not the contents of the bag, but rather, the fact that it was left in a place
where its contents were freely accessible to members of the public or to animals

Spheres of Protection
California v. Ciraolo (1986) – the “fly-over” case
- Police got tip that Ciraolo was growing weed in the backyard but couldn’t see in at the
ground level because of a 6-foot outer fence + a 10-foot inner fence completely enclosing

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 the yard. Officer flew over respondent’s house in a private plane, where they could see
and took pictures of the plants (they were trained to identify)
- Then Officer obtained a search warrant on basis of anonymous tip + their observations
- Applying Katz Test: 1st prong: respondent has manifested his own subjective intent and
desire to maintain privacy in his yard (fence).
- 2nd prong: is the expectation of yard privacy reasonable? personal + societal values
- Respondent argues that yard was in the curtilage & intimately linked to the home.
- But that the area is in curtilage does not itself bar all police observation
- Police don’t have to shield their eyes when passing a home
- Observations from aircraft were in a public navigable airspace in a physically
nonintrusive manner, and plants were visible to naked eye. Any member of the public
could have seen that. Private and commercial flight in public airways is reasonable.
- HOLD: FAILS prong 2 so no 4A violation – expectation that his garden was protected
from such observation is unreasonable and one that society is not prepared to honor.
Powell Dissent
- Harlan warned: reasonable expectations of privacy may be defeated by electronic as well
as physical invasion. Wouldn’t Court agree that if Officer climbed over the fence, it
would be unreasonable?

Florida v. Riley (1989) – Ciraolo reconsidered – (4-1-4 split)

- Helicopter at 400 feet. Plurality – in compliance with FAA regulations
- Concurrence: public people fly here with sufficient regularity

Open fields: no constitutional protection

- “any unoccupied or undeveloped area outside of the curtilage, including an area that is
neither ‘open’ nor a ‘field’ as those terms are used in common speech.”
- Examples: open beaches, reservoirs, open waters, wooded areas, lands fenced in and/or
posted with “no trespassing” signs
U.S. v. Dunn (1984) – 4 factors are relevant to whether an area qualifies as curtilage
- (1) Area’s proximity to one’s home
- (2) The existence of an enclosure around the area
- (3) the nature of the use to which the area is put
- (4) the precautions taken to exclude others from the area
- in Dunn: even if the barn is “commercial curtilage,” peering in is NOT a 4A violation
- applied in Dunn
- barn was outside the curtilage of the home.
 It was 60 yards from the house
 While a fence surrounded the home, the barn was outside the enclosure.
 Surveillance suggested structure was not used for “intimate activities of
the home”
 Did little to shield the farm from view of passerby

Dow Chemical v. United States (1986): suggests that “commercial curtilage” merits some 4A
protection, though less than homes. lower courts have generally required physical intrusion of
the premises in commercial curtilage cases, not mere aerial photography as in Dow Chemical.

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 - Businesses endeavor to conceal their activities from view + law enforcement officers
physically invade the protected area
- Merely peering in a shed window doesn’t count in commercial curtilage.

United States v. Knotts (1983)

- gov’t agents attached a “beeper” to a container of chemicals for about one to two hours.
- NO 4A Violation – container possessor could not claim a reasonable expectation of
privacy in those moments because he had exposed them to anyone who wanted to look
from a lawful public vantage point.
Return of Traditional Trespass
But see U.S. v. Jones (2012) – officers installed a GPS on a vehicle and monitored its
movements on the roads for 28 days
- Unanimous conclusion that this was a search, but divided sharply on the reasoning.
- Majority: by installing the GPS device on the vehicle, officers had “physically occupied
private property for the purpose of obtaining information.”
- Different from Knotts – this is long-term monitoring, more intrusive
- Katz never departed from physical trespass. Trespass alone isn’t quite enough to trigger
4A – it “must be conjoined with an attempt to find something or obtain information”
- Remaining 4 justices (Alito): determination turns on whether reasonable
expectations of privacy were violated by the long-term monitoring of the
movements of the vehicle. Keep with Katz approach

Confirming vitality of trespass again

Florida v. Jardines (2013) – “knock and talk”
- ISSUE: whether using a drug-sniffing dog on a homeowner’s porch to investigate the
contents of a home is a “search” within the meaning of 4A
- HOLD: 4A violation - “unlicensed physical intrusion” to gather evidence in a
constitutionally protected area that Jardines did not give leave for them to do, explicitly
or implicitly. Don’t even need to reach Katz privacy
- Implicit “social” license – permit a visitor to approach a home by the front path, knock
promptly, wait briefly to be received, and then, absent an invitation to linger, has to leave

Grady v. North Carolina (2015)

- Sex offender served his sentence was ordered to appear for a hearing to determine
whether he should be subjected to satellite-based monitoring as a recidivist sex offender
- Monitoring program was to collect information without consent – constitutes a search.
Program plainly designed to obtain information by physical intrusion on a body

Grady/Jardines – physical intrusion accompanied by an attempt to find something or obtain

information

Jones/Grady/Jardines confirm that, for 4A to apply to a search or seizure, government agents

must EITHER physically intrude on a protected area OR otherwise frustrate an individual’s
reasonable expectation of privacy in that area

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Bond v. U.S. (2000) – “tactile observation violative of 4A”
- Border patrol agent, after conducting routine check, began walking toward the front of
the bus, along the way squeezing soft luggage on his way. He squeezed a “brick-like”
object which Bond admitted was his and allowed him to open. It was a brick of meth.
- Traveler’s personal luggage = an effect within meaning of 4A
- Hold: Tactile, physical inspection is simply more intrusive than purely visual inspection
- Katz analysis: (1) petitioner sought to preserve privacy by using an opaque bag and
placing it directly above his seat, (2) Second, a bus passenger clearly expects his bag to
be handled, but not that other people will begin to feel the bag in an exploratory manner
- Note: travelers on a common carrier should expect luggage will be handled by others who
may need to reposition it. Something felt immediately wouldn’t be protected
- Dissent – “a jurisprudence of squeezes”
- Agent testified that this was common to do. The tactile inspection was foreseeable

Technology and Privacy Interests

Kyllo v. U.S. (2001) – thermal imaging of exterior of home still violative of 4A
- To determine whether the amount of heat being emitted was consistent with growing
plants, agent used a thermal imager to scan the property. Based on tips from informants,
utility bills, and thermal imaging – obtained a warrant
- HOLD (Scalia): 4A Violation – Obtaining sense-enhancing technology to get information
regarding the interior of a home has to be a search
- Government uses a device that is not in public use, to explore “intimate details of
the home” that would previously have been unknowable w/o physical intrusion
- The tech here is crude, but we must consider more sophisticated future systems
- No meaningful difference between “off the wall” and “through the wall” surveillance
- All details re home-based activity are intimate details
- Dissent: This was okay; only indirect observations of exterior of a home

U.S. v. Jacobsen (1984) – third-party frustration

- Reopening of a package that was previously opened by FedEx did not violate a legitimate
privacy expectation because Privacy is frustrated by the 3rd party
- Also a “field test” that identified a substance in a package as cocaine did not violate 4A –
no privacy interest if it is illegal contraband
- HOLD: gov’t action does not violate 4A if (1) privacy is frustrated by the third party and
(2) there is contraband, no privacy interest in contraband

Carpenter v. U.S. (2018) [5-4 decision] – cell-site location info is a privacy interest
- HOLD: gov’t search of historical phone records that provide a comprehensive chronicle
of user’s past movement = 4A violation
o Individual has a legitimate expectation of privacy in his movements
- Here, a 127-day period of cell-phone location shows movements, personal associations,
and is still violative in the public sphere. We have cell phones on us all the time.
o Compare to Knotts: a person traveling in a car on thoroughfares has no reasonable
expectation of privacy in his movements, but we do not surrender all 4A
protection just by venturing into the public sphere with our phones on them

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 - Considered 3rd party doctrine (Smith) – but the unique, deeply revealing nature of CSLI
makes it so that 3rd party doctrine does not overcome 4A protection
- Kennedy Dissent: no different from other business records that gov’t could access
- Thomas Dissent: we should revisit Katz

Probable Cause – an essential precondition for a valid warrant to search or seize

Two Applications
1. Arrest: sufficient likelihood that a person has committed or is committing an offense
2. Search: sufficient likelihood that contraband or evidence of crime will be found in the
area searched
1. Hearsay from informants is admissible for probable cause
2. Info goes “stale” in search context, but not arrest context
- Probable cause does not require certainty, only a sufficient likelihood
- Variety of warrantless searches and seizures are constitutionally acceptable as we will see

Informants’ Tips
Draper v. United States (1959) – still good law!
- HOLD: Informant’s tip, coupled w/ corroboration by police, provided PC to arrest
o informant info was “accurate and reliable” in the past, even though it was hearsay
o info provided: Draper’s appearance, attire, ambulatory speed, arrival on certain
date by train from Chicago, carrying heroin. Person caught matched this to a T.
- There was dissatisfaction in the approach – meriting closer scrutiny

Spinelli v. United States (1969)

- Spinelli was convicted of gambling over state lines. FBI kept track of Spinelli’s
movements for five days, four of which he is traveling; apartment has two phone
numbers; Spinelli is a “known” bookie; lastly and importantly, they got a tip that he is
operating bets via phone
- Aguilar Test – Aguilar v. Texas (1964)
o 1. Is there evidence that the tip is credible and reliable?
o 2. Is there evidence about the circumstances relied on by the informant?
o i.e., Affidavit: police have “received reliable info from a credible person and do
believe” that the drugs and drug paraphernalia are being kept on the described
premises – why is this not enough?
Analysis: (1) consider weight of tip alone. Here, we know nothing about reliability
because the affiant simply said – “he’s reliable.” (2) Tip does not contain a sufficient
statement about the underlying circumstances leading to tip’s conclusion
o Even though the tip is specific, we do not know if it is personally observed, and
some of that information may be innocent on its own. Need more than rumors.
- Note: some states still follow Aguilar-Spinelli
- Aguilar-Spinelli Test:
o Step 1: Basis of knowledge – the underlying circumstances from which the
informant concluded that the contraband was where he claimed it was [personal
observation, highly detailed (self-verifying’) info; AND

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 o Step 2: Veracity - some of the underlying circumstances from which officers
concluded that the informant was credible or his info reliable [facts re propensity
for truth-telling; credibility on a particular past occasion; corroborated, detailed
information]

Illinois v. Gates (1983)

- Police receive anonymous letter alleging that Gateses sold drugs. Police observed most of
what was alleged in the letter. Judge issued a warrant to search Gates’ residence and car.
- HOLD: Totality of circumstances, common-sense approach to PC is far more consistent
o Probable cause = a fair probability that contraband or evidence of crime will be
found in the area searched – a “common-sense, practical” determination
- Aguilar/Spinelli sends analysis into two independent channels: veracity vs. knowledge
- Gates abandons A-S test. Satisfaction of A-S’ two prongs is relevant, but not dispositive
- Dissent: A/S more protective of citizens’ rights and more appropriately technical. Why is
an anonymous informant more reliable?
- With a cumulative Gates approach, might be able to get a warrant on less information
- Appellate Standard of Review = “a substantial basis for concluding that a search would
uncover evidence of wrongdoing”
- Brennan Dissent: Standards should be more rigorous and protective of rights

Florida v. Harris (2013)

- Rejected “checklist” approach to assessing reliability of drug-detection dogs
- Gates requires “a more flexible, all-things-considered approach”

Permissible information for a warrant application

- Remember, P/c to get a warrant might include things like hearsay that would not be
admissible at trial, but they are still relevant for a p/c analysis (i.e. referring to
defendant’s prior arrests). Relevant considerations include:
o Person and her known associates’ criminal history
o Person’s nervous and agitated behavior (recounts her demeanor)
o Statements relevant to the alleged criminal activity

“Common Enterprise” Theory

Maryland v. Pringle (2003)
- P/c to arrest Pringle and the other occupants because police could reasonably infer that
any or all of them had knowledge of, and exercised dominion and control over, the drugs
- Under the facts, interference of common enterprise justified the arrest of all passengers
o 1.) relatively small car where all 3 people could’ve had access to the drugs;
o 2.) passenger often engages in a “common enterprise” with the driver;
o 3.) quantity of drugs (five baggies) and $763 in cash
o 4.) a dealer would be unlikely to admit an innocent person who could furnish
evidence against him

Pretextual Searches
Whren v. United States (1996)
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 - Undercover cops pulled over a car in a high drug area. The car had “youthful occupants”
and it jolted to the right without signaling. Found cocaine. D claims it was a pretext.
- Rejection of “usual police practices” test
- HOLD: subjectivity doesn’t play a role in the 4A analysis; officer intent irrelevant. If
there is an objectively reasonable basis for the traffic stop, no balancing needing.
o 4A Balancing is only necessary where the search is conducted in an
“extraordinary manner” – e.g., Tennessee v. Gardner – use of deadly force against
an unarmed fleeing felon
- Devenpeck v. Alford (2004): D was erroneously arrested for violating Privacy Act, but it
didn’t violate 4A, because officers had sufficient facts to arrest him for the alternate
offense of impersonating a police officer. As long as there is probable cause to believe an
arrestee has committed an offense, the arrest is constitutional

Warrant Requirement
- No warrant needed to arrest someone in a public place; absent an emergency, you need a
warrant to arrest someone in their home

Atwater v. City of Lago Vista (2001) [out of Texas]

- HOLD: So long as there is independent justification for the traffic stop, a warrantless
arrest is okay and no 4A violation
- Atwater driving with her two kids in front seat w/o seatbelts, she was arrested and jailed
- Police discretion is an important interest, they make split-second decisions and a case-by-
case determination of “jailable” offenses is unworkable
o Consistent with Whren: objective reasonableness for the stop is all we care about
- Although humiliating, her arrest was no more harmful to physical interests than normal
custodial arrest. Not so extraordinary to violate 4A
- O’Connor Dissent: this “unbounded discretion” for police officers could lead to abuse

Falsehoods in Warrant Applications

Franks v. Delaware (1978)
To invalidate the warrant, defendant must establish by a preponderance of the evidence:
- False statement made knowingly and intentionally, or with reckless disregard for the truth
- False statement is necessary probable cause finding
o “necessary” = granted on ABC, C turns out to be false, warrant would NOT have
been granted without C

Warrant Particularity Requirement

- When applying, prosecutor submits application + affidavit containing detailed
information in support of the application
o Issued warrant IDs “place to be searched” and “persons or things to be seized”
o Warrant may cross-reference other docs and/or incorporate them (Groh)
 Not required – see Grubbs – all that matters is places + things really
o E.g., NOT okay “to seize drug paraphernalia and papers at a location later
determined by officer but prior to execution” – blank check on location
United States v. Grubbs (2006)

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 - Grubbs ordered porn. Warrant describing proposed operation in detail with a “trigger
condition” – will not execute until someone takes the parcel inside. It occurred, he got a
copy of the warrant but not with the attachments explaining the triggering conditions
- HOLD: this ‘anticipatory’ search warrant was okay. Anticipatory warrant = probable
cause to believe contraband will be (versus is) present at the place to be searched
o There must be probable cause that triggering condition would occur; and
occurrence of the condition establishes probable cause
- 4A does not set forth a particularity requirement
o No need to incorporate into warrant the affidavit containing triggering condition

Andresen v. Maryland (1976) – only major case to address how particularized a warrant should
be under 4A
- Andresen’s false pretenses activities with Lot 13T targeted; search executed. Language in
warrant authorized seizure of particular items: “together with other fruits,
instrumentalities, and evidence of crime at this time unknown”
- Wording clearly pertained only to crime surrounding Lot 13T
- HOLD: warrant is sufficiently particularized. catchall phrases added do not violate the
4A specificity requirement as long as it is limited by the language of the warrant to items
relating to a specific crime
- Dissent (Brennan): “The question is not how those warrants are to be viewed in hindsight
but how they were in fact viewed by those executing them.”
- Contrast with Groh v. Ramirez (2004): the application was sufficiently particularized,
but the warrant issued by the magistrate was not. In the “person or property to be seized”
it simply described the defendant’s house and did not incorporate by reference the
application or the affidavit, failing to include specific items

Maryland v. Garrison (1987)

- Search warrant was mistaken or ambiguous in its description of the place to be searched.
Police erroneously entered a 2nd apartment and discovered contraband
- HOLD: it was okay – (1) warrant valid when issued and (2) execution was reasonable
o Warrant must be assessed based on info disclosed to the judge at the time.
Validity assessed by information officers “disclosed, or had a duty to discover and
disclose, to the issuing magistrate”; mistaken belief was reasonable
o Officers executed in a reasonable manner. There is latitude for honest mistake. No
distinction understood between two apartments and they made a reasonable effort
with the information available to them at the time

“Knock-and-Announce” Rule
- Officers must knock and announce their presence and their purpose before forcibly
entering the premises to execute a search warrant
Wilson v. Arkansas (1995)
- Police found main door to D’s house open but had to unlock a screen door to get in. As
they entered, announced they were police

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 - HOLD: Although a search or seizure of a dwelling might be constitutionally defective if
police officers enter without prior announcement, law enforcement interests may also
establish the reasonableness of an unannounced entry
- K&A is common-law doctrine and is part of the 4A reasonableness inquiry, but the
application of the rule is not inflexible

When is it not necessary to announce?

Richards v. Wisconsin (1997)
- felony drug investigation. Not a categorical per se exception – over-generalization, and
can be overapplied. i.e., no-knock is appropriate where it is dangerous, futile, or will
inhibit the investigation
United States v. Ramirez (1998)
- whether “reasonable suspicion” standard applies in destruction of property. Excessive
property destruction may violate 4A, but the entry itself could be lawful and the fruits of
the search not subject to suppression
United States v. Banks (2003)
- cops announced, waited 15-20 seconds in a small apartment – ok. reasonableness of
warrant execution must be determined on “the totality of the circumstances”
Wilson v. Layne (1999)
- “media ride-along” in executing arrest warrant violated 4A

The Fourth Amendment guards against unreasonable searches and seizures of persons, houses,
papers, and effects

Does Fourth Amendment apply to search & seizure?

1. Did a government agent physically intrude into a protected area to obtain information?
2. Is there a subjective and objectively reasonable expectation of privacy in the area(s) or item(s)
to be searched or listened to?
a. If yes, was there an invasion of that privacy interest by a government agent?
If either of these tests are satisfied, the search and seizure is governed by the Fourth Amendment

To be constitutional, it must be reasonable

1. Warrantless searches
a. There are 8 categorical exceptions to the warrant requirement: ESCAPIST (below)
2. Searches with a warrant
a. Must be facially valid
i. Based on probable cause
ii. Satisfy the particularity requirement
iii. Have been issued by a neutral and detached magistrate
b. Must have proper execution
i. Comply with the warrant’s terms and limitations, and
ii. Comply with the knock and announce requirement
**If warrant was facially valid but improperly executed, evidence is still admissible if officer’s failure
to comply with warrant’s terms and conditions was reasonable

Nature and Scope of Searches Without Warrants

8 categorical, well-delineated exceptions to the warrant requirement

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 - E – Exigent circumstances searches
- S – Searches incident to arrest
- C – Consent searches
- A – Automobile doctrine searches
- P – Plain view searches
- I – Inventory Searches
- S – Special Needs
- T – Terry stop and frisk

Search Incident to Arrest - Person

- Officers have legitimate interests in (1) making sure person has nothing on them that
would put them in danger and (2) making sure the person can dissipate evidence
- 3 spheres potentially subject to search: (1) person; (2) area around arrestees; (3) car

Chimel v. California (1969)

- Police officers go to Chimel’s home and are let in by his wife, they wait for him to arrive.
He objected to a search of his entire house but because he was being arrested, officers did
a full search
- HOLD: When an arrest is made, it is reasonable to search the person and the immediate
area where he might reach is included (person’s wingspan)
o “Area within his immediate control” – construed to mean where he might gain
possession of a weapon or destructible evidence
o Any surrounding areas like the greater room or closed areas need a warrant
o Does not include closed or concealed areas within the room
- Note: applies where the defendant is, not necessarily where arrested

United States v. Robinson (1973)

- Full custody arrest: officer began to pat down respondent. Went into his heavy coat breast
pocket and felt around a crumpled cigarette package  found heroin
- HOLD: in the case of lawful custodial arrest, a full search of the person is an exception to
the warrant requirement (and is indeed always allowed)
o Need to disarm the suspect and preserve evidence on his person

Washington v. Chrisman (1978): Boy suspected of underage drinking. ID in dorm room. Cop
told him he must go with him and he said okay. Cop sees drugs from doorway of room and he
entered and arrested him.
- HOLD: Permissible under circumstances and cop can stay “at arrestee’s elbow” to ensure
his own safety and the “integrity of the arrest”
- Note: plain view would not reflexively authorize this conduct in a non-arrest context

Knowles v. Iowa (1998): police officer stopped defendant for speeding. He only issued a
citation, but he could’ve arrested him and found marijuana under the seat.
- 4A violation. There’s still concern for officer safety in a traffic stop but not enough to do
a full field-type search. No more evidence preservation needed (for speeding)

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 - Chimel/Robinson does not apply where citation is issued in lieu of arrest

Search Incident to Arrest – Vehicle, Phone, and More

New York v. Belton (1981)
- Officer arrested 4 people and separated them during detention. Initial contact was inside
the vehicle, but arrests and detentions occurred outside
- Satisfied 4A: Belton was a “recent occupant” of vehicle, contemporaneous search (not
remote in time or place); search of “container” in cabin only (“immediate control”)
- Note: became the norm; trunk could only be opened with a key

Thornton v. United States (2004) – reaffirms Belton

- Belton governs even when officer does not make the initial contact until after the arrested
person has left the vehicle.
- Differences:
o One arrestee; one officer
o Initial contact outside the vehicle
o Arrestee handcuffed inside squad car at the time of the search
- Scalia (concurring): Belton should apply only where reasonable to believe evidence re
arrest may be found in vehicle (here, arrest for possession with intent to distribute drugs).

Arizona v. Gant (2009)

- Officers arrest Gant after discovering he had an outstanding warrant for driving with a
suspended license. He arrived in his car and got out of it. Initial contact and arrest 10-12
feet from vehicle. Gant was handcuffed and placed in back of patrol car. They searched
his car and found a gun and bag of cocaine.
- Chimel: justifications for SIA exception are absent
- Belton: when an officer lawfully arrests the occupant of a car, he may, as a
contemporaneous incident of the arrest, search the passenger compartment and any
containers therein (not trunk)
- Gant hold: Belton is not that broad. No (1) safety/access [Chimel rationale] or (2)
evidentiary interests (for suspended license) [nod to Scalia’s Thornton concurrence] here.
- Criticism: encourages police to engage in risky behavior, leaving arrestee in the car rather
than move him to police car to search

Riley v. California (2014) [8-1]

- Issue: searches of digital information on cell phones (“smart” and “flip”) incident to
arrest for drug and/or firearms offenses without a warrant
- HOLD: the search incident to arrest exception does not apply to cell phones
- Privacy concerns loom large. While offices could examine physical aspects to make sure
phones cannot be used as weapons, digital data on phones cannot be examined
o Once officer has eliminated physical threats, data can’t harm anyone
o Destruction of evidence: “remote wiping/geofencing” and “data encryption” when
cells “lock” [what can law enforcement do?] – not shown to be prevalent and
could be countered by disabling the phones.
 Not clear that a warrant or a warrantless search would even remedy this

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 - “qualitative” and “quantitative” privacy concerns re cell phones vs. other effects
- Warrant not necessary if exigent circumstances exist in a given case – like what?
- Applying Gant?  search okay if reasonable to conclude evidence relating to crime of
arrest in vehicle?

Birchfield v. North Dakota (2016)

- Drunk driving arrest; reasonable to administer a breath test but not blood test
- Blood test is greater privacy interest and significantly more intrusive

Steagald v. United States (1981)

- Looking for Lyons at a house. Saw two men outside house (Steagald, not Lyons) and
frisked them. They then searched the house. No exigent circumstances or consent
- Three interests at play: law enforcement’s; arrestee’s; and third parties’
- Hold: need search warrant (and arrest warrant) to arrest in home of third party; additional
burden on cops outweighed by 4A interests of affected parties
o Here, the reliance to enter home was never approved by a judge. Violates
Steagald’s privacy interest. A contrary conclusion leads to abuse

Exigent Circumstances
- Remember, an officer’s subjective intent is irrelevant in assessing constitutionality of a
warrantless entry
Three types
1. “Hot pursuit” of fleeing felon
2. Imminent threat to persons or property
3. Evanescent evidence (evidence that may be dissipated or destroyed with time)

Hot Pursuit
Warden v. Hayden (1967)
- Armed robber robbed cab company. Two drivers followed him to house and told police.
They knocked and announced and said they believed robber had entered house; person
didn’t object. Hayden found upstairs feigning sleep. Tons of evidence found toilet tank
(firearms); mattress (ammo); bureau (ammo); washing machine (clothes).
- HOLD: exigencies of situation made this imperative; thorough search necessary to
confirm he was the only person in the house and no weapons (all the crevices)
o Authority to search for both suspects and any weapons he may have used

Welsh v. Wisconsin (1984)

- Government cannot rely on exigent circumstances exception to justify a warrantless
nighttime entry of a home to arrest a resident for DWI after he stumbled home
o Underlying offense extremely minor; little threat to public safety

United States v. Santana – Woman standing in her doorway when cops arrive; retreats into
vestibule of house; cops follow her and arrest her there for felonious misconduct

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Lange v. California (2021) re fleeing misdemeanants – case-by-case, totality of the
circumstances approach.
- Officer was going to pull Lange over close to his house, he continued to driveway and
entered into his attached garage
- Suspect’s flight changes the calculus but exigent-circumstances exception rarely applies
in the context of home entry when only a minor offense is involved (Welsh)

Imminent threat to persons or property

Brigham City, Utah v. Stuart (2006) – officers entered a home w/o warrant after witnessing
altercation in the kitchen with four adults and one kid (emergency aid exception)
- Exigent circumstances exception okay to assist someone seriously injured or threatened
- Officer’s subjective motivation to make arrest is irrelevant; someone needed help
- Contrast with Welsh: ongoing violence within the home

Michigan v. Fisher (2009) – Officers responded to complaint of a disturbance where man was
“going crazy” – found house in considerable chaos. Officers noticed a cut on Fisher’s hand
- Exigent circumstances okay – he was injured (emergency aid exception) and there was
reason to believe he could cause more harm

Property: Michigan v. Tyler – warrantless entry into burning building to put out fire and
investigate its cause

Evanescent Evidence
Kentucky v. King (2011)
- Police set up controlled drug buy. Suspect closed in on and went to apartment building;
they didn’t know which apt he entered. They smelled weed and went into that one, but it
was not actually the intended suspect of drug deal
- HOLD: warrantless searches conducted in police-created exigent circumstances do not
violate 4A so long as the police did not create the exigency by violating or threatening to
violate 4A
o “Police-created” exigency created by officers’ “reasonable” conduct where no
“actual or threatened” violation of 4A – warrantless entry to prevent imminent
destruction of evidence is reasonable
- Irrelevance of bad faith, reasonable foreseeability of police-created exigency; ability to
have secured a warrant
- Note: Police cannot rely on the need to prevent destruction of evidence when that
exigency was created or manufactured by the conduct of the police
- Dissent (Ginsburg): Officers may now “knock, listen, and break the door down,” even if
they had time to get a warrant

Vale v. Louisiana (1970) – Officers saw Vale deal drugs and Vale headed quickly to his house;
he gets arrested outside the home and searched his house.
- HOLD: NOT okay, state didn’t meet burden to show risk of destroying evidence was
great enough. Warrant would have been easy to get

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 - The narcotics transaction, arrest of Value, and presence of interested family members
surely gave rise to a risk that the narcotics would disappear by the time officers returned
with a search warrant (??)

Illinois v. McArthur (2001) – fight with ex-wife etc.; she told officers he had drugs in the
house; officers prevented McArthur from entering his home while wife and another officer go
get a warrant for drug possession
- Restricting him was reasonable; good reason to fear that drugs would be destroyed if not
restrained, 2 hours is not that long, and he was not already searched and/or arrested so
they didn’t know what he had on him. Reasonable effort to reconcile their law
enforcement needs with his need for privacy

Missouri v. McNeely (2013) – rejects categorical rule that there is a sufficient exigency to draw
blood in DUI cases without a warrant. Need case-specific approach. Warrant can be quick.
- But see Mitchell v. Wisconsin (2019) – exigent circumstances almost always allows a
warrantless blood test when the driver’s stupor/unconsciousness requires him to be taken
to a hospital before a breath test can be administered.
o Exigency exists when BAC evidence is dissipating AND some other factor
creates pressing health, safety need that takes priority

Vehicle and Container Searches

Automobile Exception (a special exigency) – readily movable + limited privacy expectation in
cars traveling on open roadways due to pervasive government regulation
- Officers need p/c to believe that contraband will be found inside the vehicle. p/c gives
officers the right to search the passenger cabin, the trunk, and all closed containers within
them that might contain the contraband. Ownership is irrelevant

Contraband in vehicle (no container)

Chambers v. Maroney (1970)
- Gas station robbed; witnesses called in car description and car pulled over that matched
description. Occupants arrested and taken to police station; car thoroughly searched.
- Hold: no 4A violation - officers with probable cause to search the car at the scene where
it was stopped could constitutionally do so later at the station house without obtaining a
warrant
o Can search car incident to arrest (in case of a robbery) AND can search car later
If there is probable cause to believe there is contraband in the car
- Also, scene of arrest was dark and desolate (unsafe doing it there)

Texas v. White (1985)

- Court upheld the warrantless search of car after it was towed to the station, even though
they could’ve conducted search onsite
- Chambers does not require warrant to search car so long as delay in time is reasonable

Collins v. Virginia (2018)

- Motorcycle parked in curtilage of home (at top of driveway) –under tarp in enclosed area

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 - Hold: automobile exception does not apply to vehicles in curtilage of a private home
o Need warrant for evidence-gathering purposes to go into curtilage

California v. Carney (1985)

- Probable cause that crime happened in a motor home in a parking lot; warrantless search
revealed marijuana
- Hold: search okay because readily mobile + less expectation of privacy in a car
o Mobile home used on highways or “readily capable of such use”; “objective
observer” would consider it a vehicle, not a residence
- Liberal dissent: motor homes are commonly used as homes, even if not fancy, should
have privacy. A warrant would have been easy

Pennsylvania v. Kilgore (1996): (scope of automobile exception case)

- Truck parked in driveway of farmhouse belonging to a different person, no one in car
- HOLD: no violation – vehicle’s “ready mobility” and lesser expectation of privacy due to
pervasive regulation
- It doesn’t matter that it was in someone else’s driveway, still readily mobile and less
expectation of privacy

Florida v. White (1999) – When the car itself is contraband (as opposed to its contents)
- Officers believed car was subject to forfeiture.
- No 4A violation – car was seized under auto exception in a public area

Contraband in container (no vehicle)

United States v. Chadwick (1977)
- Man took footlocker leaking talcum powder on train. They reported it to the destination.
He joined two people in Boston and put the footlocker in Chadwick’s trunk. Trunk was
still open and engine hadn’t started – officers arrested all three people
- Should the rationale of the automobile exception apply to movable luggage?
- HOLD: unreasonable search. There are privacy expectations in a personal effect.
o distinct from auto privacy: autos are mobile and not a repository of personal
effects. They are registered, licensed, and regulated. Luggage contents are not in
public view or subject to regular inspections. Footlocker wasn’t going anywhere

Contraband in container within a vehicle

Background cases
Sanders (1979): p/c re contraband in movable luggage placed in a car [overruled]
- police thought suitcase had weed. Waited until they left and stopped the car and searched
the suitcase. Extended 4A protection to luggage in moving car
Robbins (1981): p/c re contraband in opaque, non-luggage container (short-lived decision)
Ross (1982): p/c re contraband in car; auto search turns up a container with drugs
- they had probable cause to search the car which extended to probable cause to search the
container. (drugs somewhere in the car, p/c goes to the car)
- where there is probable cause for an item  once you find that item, you must stop
o anything you find along the way is admissible

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California v. Acevedo (1991) – Clarity at last!
- Acevedo ordered weed and picked it up at FedEx. He drove with it to his apartment. Saw
another guy leaving the apt with a backpack; stopped and searched and found weed.
Acevedo arrived back at apt, reappeared with a brown paper bag, put it in his trunk and
drove off. They stopped him and found weed in bag. p/c went to the container
- HOLD: Police may, without a warrant, search an automobile and the containers within it
[wherever] they have probable cause to believe contraband or evidence is contained.
- Sanders is overruled. No effect on Ross or Chadwick
o Like Ross – closed containers in car could be searched because they’re in the car

Wyoming v. Houghton (1999)

- HOLD: When there is p/c to search a vehicle, auto exception permits the warrantless
search of a passenger’s personal belongings
o They have reduced expectation of privacy, would frustrate gov’t to not be able to
search passengers’ stuff if they have p/c to believe there is contraband
o Does NOT cover the passenger’s body – more severe and intrusive. BUT SEE 
if they found drugs in her purse, they could Chimel search her
- Note: passenger voluntarily left purse in her car.

Collins v. Virginia (2018)

- Whether vehicle parked in curtilage of the home could be searched under auto exception
- HOLD: exception did NOT permit warrantless entry into the curtilage that was needed to
gain access to the vehicle

Inventory Searches
Justifications
1. Protect owner’s property
2. Protect police against lost or stolen property claims
3. Protect police from potential danger
Query: What is the relationship between what is reasonable and what is most protective of the
subject’s Fourth Amendment rights? Majority vs Justice Marshall in Opperman; Bertine

Impounded Vehicles
South Dakota v. Opperman (1976)
- Car impounded after parking tickets. From outside car at the impound lot, they noticed
watch on the dashboard. They inventoried car including unlocked glove compartment
- Cars are routinely in police custody; routine practice of inventorying and securing
contents. Interests: protection of police against claims of stolen property; potential
danger; protecting owner’s property while in police custody
- HOLD: this was reasonable, police were engaged in a caretaking search of a lawfully
impounded vehicle
- Dissent: diminished expectations of privacy does not mean a routine sacrifice for
government searches. Why not post a guard up to deter vandals?

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Colorado v. Bertine (1987)
- “pre-impound” inventory of vehicle at roadside. Opened up a closed backpack, opened
closed canisters inside backpack and found tons of drugs
- HOLD: no 4A violation. Officers have discretion in conducting inventory searches –
must be exercised according to “standard criteria and on the basis of something other than
suspicion of criminal activity”
o “reasonable regulations administered in good faith”
o Search not “in bad faith or for the sole purpose of investigation”
- Note: officers’ subjective intent does matter in inventory searches, unlike others
- Dissent: nothing limits officer’s discretion, can be used improperly and investigative

Florida v. Wells (1990)

- Inventory search of locked suitcase found in trunk of impounded vehicle
- HOLD: here, not ok because Florida Highway Patrol didn’t have a policy, but 5-4
majority thought police need sufficient discretion re opening closed containers whose
contents aren’t visible from the outside. We would uphold the policy if it existed

Arrestee Booking Process

Illinois v. Lafayette (1983)
- Man arrested; his shoulder bag searched. Part of routine administrative procedure at
jailhouse pursuant to booking and jailing someone
- HOLD: this was a reasonable administrative procedure to examine all items removed
from arrestee’s person or possession and inventorying them
o Doesn’t make it unreasonable if a less intrusive procedure existed
- Police station hold is a continuation of arrest custody. Gov’t interests: don’t want to hurt
themselves, steal, or make false claims about what they had on them

Florence v. Board of Chosen Freeholders (2012)

- (Kennedy) (5-4): upheld routine searches, individualized suspicion not necessary. Strip
searches allowed for people entering gen pop
- Courts should intervene only when there is “substantial evidence” indicating that
“officials have exaggerated their response” to the “undoubted security imperatives
involved in jail supervision”
- Deference to correctional officials and police department rules and regs
- Differentiation in standard deciding “serious” of offense not workable
o need for “readily administrable rules”/seriousness of offense is poor predictor
- Dissent (Breyer): would require reasonable suspicion for minor, non-drug-related arrests

Maryland v. King (2013)

- Cheek swab at station is like fingerprinting and a legitimate police booking procedure,
reasonable under 4A
- Limited to DNA of individuals held for “serious” offense [doesn’t define “serious”]
- Dissent: clearly for “crime detection” purposes, and 4A does not allow suspicion-less
searches for investigative purposes

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Consent Searches
- If a person gives consent to search, doesn’t make sense for officer to get a warrant
- The consenting party determines the scope of the consent
o If they say “you can search X but not Y,” cop can’t search Y unless independent
reason for doing so.
o Consenting party may revoke consent
- Consent must be voluntary, not the product of duress or coercion. To determine whether
consent freely given, look to totality of circumstances

Schneckloth v. Bustamonte (1973)

- Police stopped vehicle and asked if he could search; driver said sure
- How to prove consent was “voluntarily given”?
o Two competing concerns: legitimate need for such searches + equally important
requirement of assuring the absence of coercion
o Difficult to prove nature of person’s understanding, but also impractical to impose
detailed requirements of effective warrant. 4A is less formal than 5A/6A
- HOLD: narrow – when subject of search is not in custody, 4A and 14A require that
prosecution show consent was voluntary and not result of duress or coercion.

United States v. Watson (1976): Court rejected contention that government has to prove that
individual was informed or otherwise aware of right to refuse

Ohio v. Robinette (1996):

- Did not inform guy of his right to refuse consent, btu that wasn’t necessary
- As long as there is no duress or coercion – no 4A violation

Florida v. Jimeno (1991) – scope of consent search is governed by standard of “objective

reasonableness” – what would a reasonable person have understood by the exchange?
- Man gave general, unrestricted consent to search his car to officers who made it clear
they were looking for drug. Reasonable to understand that consent extended to the
vehicle itself and any unlocked containers within

Co-occupant Consent
Illinois v. Rodriguez (2000) [Apparent Authority to Consent]
- Police summoned to woman’s house, greeted by daughter who appeared beaten. She
brought them to a different apartment and let them in with a key. Found plain view drugs
and arrested the guy who was asleep
- Hold: she presented to police as if this was her place, authority okay. Officer’s
reasonable, although erroneous belief, that she was a consenting party = no 4A violation

United States v. Matlock (1974) [Actual Authority to Consent]

- Matlock arrested in a yard; officers went to door of his home and were greeted by his
partner who revealed they stayed in the same bedroom and she consented to the search

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 - HOLD: State proved by preponderance of the evidence that she had actual authority to
consent to the search. Her statements at the door + baby on her hip + her and his
statements out of court that they were married
o Mutual use by persons having joint access or control for most purposes

Georgia v. Randolph (2006)

- Domestic dispute; wife claims husband kept drugs in the house and gave consent to
search the home. He refused consent. Was once their shared home, she moved out.
- Hold: NOT valid. warrantless search of a shared dwelling for evidence over the express
refusal of consent by a physically present resident cannot be justified as reasonable as to
him on the basis of consent given to the police by another resident
o Distinct from Matlock, who was absent. She couldn’t give overpowering consent
to search. She had alternatives – go give cops evidence yourself
- Dissent: Randolph assumed risk by sharing space; holding might endanger DV victims

Fernandez v. California (2014)

- Fernandez assaulted woman and objected search of apartment. He was in cop car. Later
they go back and she consented to the search. This was okay because he was absent
when co-occupant consented.
- Removal of objector was “objectively reasonable”; officers’ subjective intent irrelevant
- Dissent: Keeping Randolph’s holding extremely narrow
Consent Search Elements
 Officer’s subjective intent doesn’t matter
 Is there voluntary consent?
o Do not have to inform of right to refuse consent
o Must not be a product of coercion
o Hard to prove involuntariness – high bar
o Look at the totality of the circumstances
 Ex: education level of person consenting, time the search occurred, location
 Scope of consent is judged on an objectively reasonable standard
 Once a traffic stop is concluded, there can still be valid consent and car does not need to be
informed
 If someone else is home, is there actual or apparent authority to consent
 When 2 people disagree on consent:
o If the person who refuses is present, they win
 Randolph is limited to its facts, however you can always wait it out
o If not, they lose

Plain View Doctrine

Three requirements:
- Lawful access to the place from which the item can be plainly seen;
- Lawful access to the item itself; and
- Probable cause to believe the item at issue is obviously criminal
o “Immediately apparent” criminality. Cannot move items to determine their
criminal nature; but can move to gain access to areas or items that are blocked by
the presence of the item in question

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Arizona v. Hicks (1987)
- Police looking for gun. Notice stereo seemed out of place. He moved it to see the serial
number and reported it back, found it was stolen
- Hold: moving equipment was a warrantless search. By definition, that is not plain view
- Only had reasonable suspicion it was stolen – would need probable cause

Review - Categorical Exceptions to the Need for a Warrant

1. Exigent Circumstances
a. Evanescent evidence
b. Hot pursuit of a fleeing felon
c. Emergency aid doctrine
2. Searches Incident to Arrest
a. Lawful Arrest
b. Contemporaneity requirement
c. Area of immediate control and surrounding area; not digital data on cells
d. Auto: interior cabin
3. Consent
a. Voluntariness requirement – no duress or coercion
b. Communication of right to refuse consent not required
c. “Actual” vs “apparent” authority
d. Disagreeing co-tenants present on the premises
4. Automobile
a. Probable cause (can arise after the stop, but must be before the search)
b. Interior cabin plus trunk, wherever item(s) sought may be present
c. Includes containers
d. Does not extend to cars in curtilage
5. Plain View
a. Three core requirements:
i. Lawful access to the place from which the item can be plainly seen
ii. Lawful access to the item itself
iii. Criminality of the item must be immediately apparent
b. Cannot move items to determine their criminal nature
6. Inventory
a. Three justifications:
i. Protection of owner’s property
ii. Protection of police against lost or stolen property claims
iii. Protection of police from potential danger
b. Two contexts:
i. Impounded vehicles
ii. Arrestees being booked into jail
c. Analytical focus:
i. Reasonableness of the application regulations
ii. Officers’ compliance with those regulations
iii. Officers’ good faith (search is not a subterfuge for warrantless collection of
criminal evidence
7. Special Needs
8. Terry Stop and Frisk

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Stops and Frisks
- Balancing test: balance the interest of law enforcement against the nature and extent of an
individual’s privacy right
o Requires “reasonable suspicion” standard, not p/c
o If reasonable suspicion you are involved in a crime  Stop
o If reasonable suspicion you are armed and dangerous  frisk
- Once arrested, other cases kick in (Chimel, Robinson)

Terry v. Ohio (1968) – officer surveilling 3 men; reasonably believed they were about to engage
in criminal activity officer stopped men, grabbed Terry and patted him down, finding pistol
- Seizures must be (1) justified at their inception and (2) reasonable in scope
- Hold: reasonable suspicion standard; if officer believes, in light of his experience and
with unusual conduct, that he is in danger or danger is afoot.
- Under this standard, officers can pat down to find hard object (that’s it)
o Search incident to arrest (Robinson) is far more extensive
o Stop and frisk is a “mere inconvenience” compared to an arrest
- In addition to government interests, McFadden concerned for his own safety, even though
he lacked probable cause for an arrest
o Terry frisks are “safety frisks”

Sibron v. New York (1968) – officer sticks hand in man’s pocket and finds heroin. He was
merely hanging around with addicts, no reason to believe he was armed in dangerous
- Hold: 4A violation – this reach goes beyond the scope of Terry (even if he did believe he
was armed and dangerous, it’s limited to an outer pat down!)

Dunaway v. New York (1979) – officers removed D from a home and took him to station,
because they thought he was involved in a crime and wanted to arrest him. They had reasonable
suspicion but not probably cause
- Hold: 4A violation – you cannot take someone out of their house and question them, that
is de facto arrest. Detention for custodial interrogation requires probable cause

Scope of Seizures
United States v. Mendenhall (1980)
- DEA agents approached woman in airport concourse, escorted her to office, found drugs
in her undergarments
- Thin majority found reasonable suspicion of the stop; there was some evidence that she
voluntarily consented
- Standard: an officer’s words and actions would have conveyed to a reasonable person
that he was not free to leave

Florida v. Bostick (1991)

- Bostick on bus. Cops approached for routine check and advised him he had the right to
refuse consent; asked to search his stuff, they did and found cocaine

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 - Held: This was not a seizure. Court must consider all circumstances surrounding the
encounter to determine whether the police conduct would have communicated that a
person was not free to decline officer’s questions
o wouldn’t have felt free to leave regardless, didn’t have to do with police conduct
o They didn’t threaten him and advised him he could refuse consent
- Dissent: these bus sweeps are intrusive and intimidating

United States v. Drayton (2002) – re-affirming Bostock

- Man consented, officers gave passengers no reason to believe they were required to
answer questions, did not brandish a weapon, no intimidating movements, and spoke to
passengers one-by-one in a quiet voice
- Badges irrelevant; with more people around, and when travel companion arrested, they’d
be more empowered to say no (?)
o *rises to level of seizure only if the particular interaction with officers suggests
that they are not free to disregard questions*
o Free to leave standard does not really apply in mass transit context – of course
you wouldn’t just walk away

California v. Hodari D (1991)

- Officers chasing teens; kid threw crack cocaine rock and was then tackled
- Issue: at the time Hodari dropped the drugs, was he “seized”?
- Hold: When X claims unlawful seizure by a show of authority, the cop must have either
physically restrained their freedom of movement OR they must have voluntarily
submitted to the cop’s request.
o Officer’s pursuit was a “show of authority,” Hodari didn’t comply so he was not
seized until he was tackled
o Mere following of a suspect is not enough to trigger 4A
- Stevens Dissent: touchstone is whether personal liberty has been “restricted in some way”

Torres v. Madrid (2021)

- Seizure requires the use of force with the intent to restrain
o Absent submission, the seizure “lasts only as long as the application of force”
- Dissent: seizure should require submission or capture

Brendlin v. California (2007)

- Per se rule drivers and passengers are seized during a traffic stop.
- Understood driver nor passenger couldn’t just drive away/walk away

Factors in Reasonable Suspicion Calculus – HCA, Anonymous Tips

Illinois v. Wardlow (2000)
- Officers in “HCA,” saw Wardlow with a bag, he made eye contact and fled. They
stopped him and conducted a stop and frisk
- Reasonable suspicion requires more than an “inchoate and unparticularized suspicion or
‘hunch’” of criminal activity, but officers make commonsense judgments/inferences
about human behavior in evaluating reasonable suspicion

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 - Hold: high crime area is a valid contextual consideration in a Terry analysis
o High crime area + unprovoked flight when noticing police
 Flight is not indicative of wrongdoing, but suggestive of such
o Nervous, evasive behavior is also a factor
- Consistent with Florida v. Royer: refusal to cooperate, without more, does not meet
requisite level of suspicion for a seizure. But flight, by nature, is more convincing
- Dissent: a million innocent reasons for flight; also consider minorities + police

United States v. Sokolow (1989): Law enforcement must articulate factors establishing
reasonable suspicion
- Profiles of criminals are okay, but you can’t just reflexively rely on them alone.

Alabama v. White (1990)

- Received call that White would be leaving at a certain time carrying cocaine
o Note: factors relevant in p/c analysis for veracity of informant’s tip are highly
relevant in a reasonable suspicion context – but standing alone, need more
- Hold: here, there was considerable detail predicting future conduct + existing behavior +
police corroboration = sufficient reasonable suspicion so stop was okay. Close call.
o Remember: reasonable suspicion less demanding than p/c!
- Dissent: this could have been an anonymous neighbor’s random prediction or a prank

Florida v. J.L. (2000)

- Anonymous caller said black man at a bus stop in a plaid shirt had a gun
- Hold: officers had no reasonable suspicion. No observations made on their own and the
call was made from an unknown location by an unknown caller.
o Distinct from White: no predictive information, no means to test informant’s
reliability and credibility. Purely descriptive.
o A tip must be reliable “in its assertion of illegality, not just in its tendency to
identify a determinate person.”

Navarette v. California (2014)

- Anonymous 911 caller reported she was run off the road by a truck. Gave area,
description, and license plate of truck. Found truck, followed, no traffic violations but
pulled it over and found weed
- Hold: on the totality of circumstances, officer had reasonable suspicion that the driver
was intoxicated
o Eyewitness knowledge; contemporaneous with a startling event; calling 911;
alleged specific and dangerous result of driver’s conduct
o Marked police car would inspire careful driving.
- Close call, but more than there was in Florida v. J.L.
- Dissent: single incident doesn’t indicate drunk driving; “freedom-destroying cocktail”

Kansas v. Glover (2020)

- Reasonable suspicion found for traffic stop based on revocation of vehicle owner’s
license. “common-sense inference’ that driver was the owner

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 - R/S considerably less than 51%

United States v. Arvizu (2002)

- SCOTUS reemphasized totality of circumstances approach; relevant factors cannot be
considered “in isolation from each other”
- Defendant’s conduct crossing the border may appear innocent to an ordinary citizen,
when viewed in its totality it may provide r/s of an immigrant to a trained INS agent

Heien v. North Carolina (2014)

- Reasonable suspicion can rest on mistake understanding of a scope of legal prohibition.
- Cop had objectively reasonable but mistaken understanding of vehicle code. The
definition of what constituted a “stop lamp” in the statute was inherently ambiguous.
- 4A allows for some mistakes

Scope of Terry Stops and Frisks

- Generally, must be (1) reasonable at their inception; and (2) reasonable in scope

Brevity Requirement – no strict temporal rule, we look to see whether officers “reasonably and
diligently” investigated
United States v. Sharpe (1985)
- 30-40 minute detention of Sharpe, 20-minute detention of Savage
o No bright line rule and no rigid time limitation to Terry stops
o Police were detaining Savage to get help from local police

United States v. Montoya de Hernandez (1985)

- Detained for 16 hours while customs agents awaited a bowel movement
- Hold: not unreasonably long
o Occurred at the border (less 4A protection)
o No other alternatives because she refused an X-ray
o She prolonged it herself by holding in a bowel movement (conduct of defendant)

Florida v. Royer (1983)

- Plurality suggested a “least intrusive means” requirement – but see Sokolow –
reasonableness doesn’t turn on less intrusive investigatory techniques. Such a rule would
hamper officers’ ability to make on-the-spot assessments

United States v. Place (1983) [not assigned]

- FACTS: Consent to search two suitcases obtained at Miami airport; decision not to
search; when flight arrives in NY, DEA agents request permission to search, which is
denied; luggage then seized so a warrant can be obtained; dog sniffs luggage and alerts to
one of the bags 90 minutes after initial seizure; three days later warrant is obtained; drugs
found within the bag to which the dog had alerted.
- HOLDING: Terry’s brevity requirement is violated.

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 o Contrast with Montoya – here, police were responsible for the delay and they
could’ve averted it by arranging for the sniff while the flight was en route because
reasonable suspicion existed prior to departure
- Note: sanctioned the use of police dogs in airport drug interdiction

Requests for Information

Hayes v. Florida (1985)
- Reasonable suspicion; Hayes was reluctant to get fingerprinted at his home and blurted
out he’d rather go to the station than be arrested. They fingerprinted him there and he was
determined the suspect
- Hold: he was seized, involuntary removal of suspect from his home to police station for
investigative purposes, absent judicial authorization

Hiibel v. Nevada, Humboldt County (2004) – not unreasonable for officers to require a suspect
who is lawfully detained to identify himself. Valid under Nevada’s “stop and identify” law
- Obtaining a suspect’s name is important government interest
- Note: If you do not answer who you are, they can arrest you. They can search you
incident to arrest (Chimel and Robinson) even if they could not arrest you prior to your
refusal to answer that question. They could only frisk you before if there was a suspicion
that you were armed and dangerous but if not, they could not have frisked you

Dog Sniffs
Illinois v. Caballes (2005)
- Defendant stopped for speeding. One officer wrote a ticket; other officer led dog around
the vehicle. Dog sniffed out weed
- Hold: Officers do not need reasonable suspicion to conduct canine sniffs of lawfully
stopped vehicles, so long as they don’t unreasonably prolong stop
o Also, Defendant’s privacy interest in contraband cannot be deemed “legitimate”
and a dog is only there to sniff out illegal stuff
o You don’t need p/c to bring dogs around

Rodriguez v. United States (2015)

- Dog was brought to the car after the ticket had been issued
- Police exceeded the time necessary to effectuate the purpose. Dog sniff prolonged the
traffic stop. Authority for seizure ends when tasks tied to the traffic stop are completed.

Traffic Stops, Protective Sweeps, Intrusive Body Search

Michigan v. Long (1983)
- Long stopped for erratic driving and got out of car to meet deputies. His door was open
and officers noticed long hunting knife. Something else protruding – it was marijuana.
Searched rest of the car and found 75 pounds of weed
- Test: as long as police possess an articulable and objectively reasonable belief that the
suspect is dangerous, balance required by Terry weighs in favor of police
- Increased danger in traffic stops
- Brennan Dissent: Terry only authorized limited searches of persons for weapons

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Note: Glannon question p. 166
- Person pulled over for having a broken taillight. Officer notices his eyes are bloodshot
and he acts nervous, and orders him out of the car. “Believing he might be hiding
something in the vehicle, she searches the cabin” and finds drugs
o Search is invalid because she was not motivated by concern for officer safety. If
the “frisk” theory is unavailing, she needs p/c that vehicle contains contraband to
search, and these facts alone do not suggest p/c (auto exception to warrant)

Pennsylvania v. Mimms (1977)

- officer can reasonably require a driver to get out of vehicle for traffic infraction
- Maryland v. Wilson (1997): extended Mimms doctrine to passengers

Arizona v. Johnson (2009)

- Car stopped. Johnson was a passenger in the rear acting weird. He was asked to get out
and patted down; found a gun
- Seizure occurs with all occupants. Need reasonable suspicion to frisk if the suspect was
armed and dangerous

Minnesota v. Dickerson (1993)

- Officer observed respondent leaving known “crack house.” He bolted. Stop and frisk 
felt a small lump in jacket, he kept feeling and it turned out to be crack cocaine
- Hold: stop and frisk valid, but seizure of cocaine was unconstitutional
o Contour was not immediately apparent of the drug and the search was only
justified as a weapons search

Maryland v. Buie (1990)

- A protective sweep is a quick and limited search of the premises, incident to arrest and
conducted to protect the safety of police officers or others
- Guy emerged from basement and was arrested; officers went down to basement and
found red tracksuit (matched tipster’s description of assailant)
- Hold: this was okay – officers had to assure themselves there weren’t other dangerous
people around. Officers could as a precautionary manner look in closets, etc. from where
an attack could be launched
o *need some reason to believe there could be someone in the residence that
threatens their safety. i.e. in Buie, for a robbery*

Terry and the Execution of Search Warrants

Ybarra (1979): Executing a search warrant for narcotics at a bar does not confer automatic right
to frisk patrons on the premises.
- No reasonable suspicion as to the patrons; only bartenders
Michigan v. Summers (1981): Officers can detain of occupants of home while executing search
warrant (here, for narcotics), even in absence of individualized suspicion
Bailey (2013): Need reasonable suspicion to detain recent occupants beyond the immediate
vicinity of the residence at the time of the search.

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Special Needs Doctrine
 Balance when special needs make the warrant and probable cause requirements
impractical
o Focus on a concern for safety/security, NOT ordinary wrongdoing
 SCOTUS approved searches have included:
o Blood/urine samples from all train personnel after an accident;
o Sobriety checkpoints (only 1% success, but promotes highway safety);
o Drug-testing of customs officials;
o Drug testing of public school kids in extra curriculars (athletes and others subject
to grave harm from using drugs);
o Edmonds: Checkpoint set up to find hit & run drivers
 Does NOT include:
o Suspicion-less checkpoints of vehicles to find drugs (Special Needs does NOT
look for ordinary wrongdoing);
o Drug tests of pregnant women who were suspected of using cocaine;
o Drug testing political candidates (symbolism is not enough!)
School
New Jersey v. T.L.O. (1985)
- girls caught smoking at school. Her purse was searched -> she was dealing drugs
- Hold: Search did not violate 4A (public school officials’ searches subject to 4A)
o Clear reasonable suspicion that she violated a school rule
o Balancing test for reasonableness
 Invasion of privacy, but also an interest in maintaining discipline
- Reasonable at inception and later in scope because of escalating cause: Cigarettes 
rolling papers  pipes  drugs  plastic bag  money  index cards  letters 
reading the letters which confirmed weed dealer
- Special needs environment of school requires lesser than p/c

Safford United School District v. Redding (2009): girl who was carrying prescription strength
Advil was strip searched at school
- Reasonableness in inception? – yes
o Reasonable grounds for suspecting that the search would turn up evidence of
violating school rules
- Must balance keeping drugs out and order in school vs. intrusion of student
- Reasonableness in scope? – no - “Excessively intrusive in light of the age and sex of the
student and the nature of the infraction”
o Backpack  outer clothing  brassiere  underwear
 Hold: all searches need to be reasonable at their inception and reasonable in scope
o balancing harms of Advil vs. the harms done to the girl, this is unreasonable

Checkpoints – true example of special needs because absent any individualized suspicion
Michigan v. Dep’t of States v. Sitz (1990)

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 - Hold: Police can establish checkpoints if state interest outweighs intrusion into privacy
interests and checkpoint is proven to be an effective means of achieving the state’s goal
o State’s interest in keeping drunk drivers off road huge (death, cost, damage)
o Effectiveness favors the state, although overall efficacy is low
o Level of intrusion minimal (25 seconds)

City of Indianapolis v. Edmond (2000)

- Hold: Roadside checkpoint for deterring general criminal activity is unlawful under 4A
o No special reason; can’t point to special needs for a general desire to uncover
criminal wrongdoing. They even said it was to look for drugs in cars.

Illinois v. Lidster (2004)

- Police set up checkpoint to ask about hit-and-run that occurred a week prior
- Hold: no 4A violation
o Gravity of public concern; seizure advances public interest; minimally intrusive
interference (brief, information-seeking stop)
- Note: if the Court had written the Edmonds opinion better, it wouldn’t have had to revisit
it 4 years later. Not all law enforcement objectives are subsumed by Edmond.

Drug Testing
- In evaluating the reasonableness of “suspicionless” drug testing, the Court has balanced
the nature of the individuals’ privacy interest against:
o The character of the intrusion
o The nature and immediacy of the government concern at issue; and
o The efficacy of the means used for meeting it

Skinner v. Railway Labor Executives Association (1989) – original Special Needs doctrine
- Blood and urine tests of railroad employees following “impact accidents”
- Hold: no 4A violation – Where special needs exist, a showing of individualized suspicion
is not a “constitutional floor” below which a search must be presumed unreasonable
- Government need to figure out what happened is so great

National Treasury Employees Union v. Von Raab (1989) – Customs Agents drug tests
- Held: No 4A violation because although no specific employee had a drug problem, this
was okay because these employees were intercepting drugs and handling firearms
- Government had compelling interests in safety w/ firearms and protecting classified
information that outweighed privacy expectations

Vernonia Sch. Dist. 47J v. Acton (1995)

- Student athletes consenting to random urinalysis tests
- Hold: no 4A violation
o School context (diminished privacy) + nonprivate nature of locker room and
voluntary choice to be highly regulated as an athlete
o Only looked for drugs, and risk of immediate harm of drugs was high

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Board of Education v. Earls (2002)
- Random drug testing of students in any extracurricular activity
- Hold: no 4A violation – special needs context
o Similar diminished privacy, minimally intrusive, not turned over to police
o Drug abuse was bad nationwide. No individualized suspicion necessary
- Dissent (Ginsburg): “capricious, even perverse”
- Note: in reality, programs not widespread because they are expensive

Chandler v. Miller (1997)

- Court struck down Georgia’s drug testing requirement for candidates in state office
- Hold: not within closely guarded category of permissibility
o Not based on suspicion of wrongdoing. Merely a symbolic process
o Georgia showed no special need, no evidence that state officials use drugs
o Also counterintuitive – someone can work around the date of test
o Candidates subject to relentless scrutiny by the public anyway

Ferguson v. City of Charleston (2001) – pregnant women

- pervasive and extensive involvement of law enforcement “at every stage”
- Hold: unconstitutional. Invasion of privacy substantial and purpose is for police to try to
coerce people into substance abuse treatment (general crime control)
- Dissent (Scalia): no privacy interest associated with urine; it’s like garbage.

Maryland v. King (2013) [again]

- Arrested and swabbed, uploaded to database, and 3 weeks later matched to an unsolved
rape case. He was indicted and another sample taken which again matched. Happened at
arrest stage, not conviction stage
o Need judicial determination of probable cause to use DNA sample – if you prevail
in p/c hearing and no formal charges filed, DNA is not entered into database
 However, you can be formally charged and then acquitted much later, but
DNA would still be entered. Scalia criticizes this in dissent
- Hold: no 4A violation. Buccal swab permissible incident to arrest for crime of violence
o Law-enforcement concerns: Legitimate booking procedure to accurately identify
people in custody (Hiibel), identity not limited to name (criminal history, etc.);
“unparalleled accuracy” of DNA testing
o public policy concerns: allows individual assessment of dangerousness, helps
identify flight risks, may allow the innocent to go free
o privacy concerns: minimal intrusiveness; limited to serious felonies; Only comes
from noncoding parts of the DNA; Arrestees have diminished privacy
expectations
- Scalia/Liberals Dissent: clearly this is to for ordinary crime-solving purposes

United States v. Flores-Montano (2004)

- Respondent attempted to cross US border. Car taken to inspection station; gas tank
removed and revealed tons of weed. Process took 15-20 minutes

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 - Hold: no 4A violation. “Routine” searches and seizures at the border are okay, so long as
the result is not “so destructive as to require a different result”
o Government has great interest in preventing entry of unwanted effects
o Privacy interests diminished at border + in a car. Search is minimally intrusive

Higher than Usual Standards of Reasonableness

Use of Deadly Force by Law Enforcement
Tennessee v. Garner (1985)
- “prowler inside” call. Officer went behind house and saw kid fleeing. Shouted “police
halt” and the kid was trying to climb a fence. Shot him and killed him.
- Hold: deadly force must be necessary to prevent escape AND probable cause to believe
suspect poses threat of death or serious bodily injury to officers or others
o Intrusiveness level obviously unmatched
o Shooting nondangerous fleeing suspects does not outweigh a human life
o Here, no probable cause to believe young, slight kid was a threat
- Note: statute not unconstitutional on its face, where officer has probable cause to believe
that the suspect poses a serious threat of physical harm, deadly force may be ok

Scott v. Harris (2007)

- Super dangerous police chase; officer hit car of fleeing felon
- Hold: this was okay, reasonableness test. Totality of circumstances
o Imminent threat posed to innocent bystanders
o Officer’s actions weren’t certain to kill Harris

McNeely v. Missouri (2013) (again)

- Judges must determine whether gov’t has shown exigent circumstances on a case-by-
case, totality of circumstances test
o Generally, you need a warrant to take blood against will in DUI cases
- Alcohol level dissipates in blood but doesn’t justify a per se exception to search warrant

Winston v. Lee (1985)

- Watkinson was shot in leg. Found another guy bleeding and Watkinson said that’s who
shot him. Need evidence – bullet fragment in his leg. Motion to compel his surgery
- Hold: case-by-case basis; A compelled surgical intrusion into an individual’s body for
evidence, however, implicates expectations of privacy and security of such magnitude
that the intrusion may be “unreasonable” even if likely to produce evidence of a crime
o Extent to which procedure may threaten health and safety
o Extent of intrusion on bodily integrity (is it a commonplace procedure?)
- Here, there was an uncertainty in nature and scope of operation (cuts against a finding of
reasonableness) and there is other evidence state can get without surgery

Entrapment
- Not constitutionally based defense, but every state has some form of entrapment
Sherman v. United States (1958)
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 - Sherman is in rehab and has established relationship with informant. Informant begs him
for drugs. Sherman refused but finally gives in after many requests
- Hold: entrapment if the criminal conduct was the “product of the creative activity of law
enforcement.” Subjective entrapment test focuses on the defendant’s disposition
o Government agents must implant in the mind of an innocent person the
disposition to commit the offense
 Sherman was demonstrably trying to get clean, no drugs found in his apt
o Predisposition can be established by “ready acquiescence” to inducements
- Note: his criminal convictions from 5 & 9 years ago don’t mean predisposition,
especially because he is voluntary in rehab (might be different if more recent)
- Concurrence: Objective entrapment test focuses on the methods used by police to elicit
criminal conduct – likely to induce criminal activity by those not otherwise ready and
willing to engage in it
o Was the government conduct so extreme so as to bring the downfall of those who,
regardless of predisposition, would have obeyed the law if left by themselves?
 Here, it was still outrageous
 Minority of states + MPC favor this approach
- Entrapment under the MPC: government officials or their agents employ “methods or
persuasion or inducement that create a substantial risk that such an offense will be
committed by persons other than those who are ready to commit it”
o Defendant bears the burden of persuasion by preponderance of the evidence

United States v. Russell (1973)

- Undercover cop went to guy’s meth lab. Cop promised him an ingredient he needed. Cop
helped him pick up foil in the lab to make the meth
- Hold: not entrapment. Criminal enterprise was already in process, regardless of
government’s involvement. Subjective test
o It is only when the Government’s deception actually implants the criminal design
in the mind of the defendant that the defense of entrapment comes into play.
- Dissent: Favors objective test where there is impermissible manufacturing of a crime here

Due Process of Law and Confessions – coercions

Involuntariness test to exclude a confession: police coercion that overbears the suspect’s will
- Totality of the circumstances test: it is not unconstitutional to pressure someone, but not
when it amounts to police overbearing the suspect’s will
- Who decides the voluntariness issue?
o Majority of jurisdictions (orthodox procedure): the judge – if it’s voluntary then
the jury can come in and hear it
o Minority (Massachusetts): the judge’s decision is only preliminary; if he finds it is
voluntary, the jury is the one who must agree, or else it is suppressed
- Arraignment and the admissibility of confessions
o Arraignment “without unnecessary delay,”
o but delay does not automatically lead to suppression

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Brown v. Mississippi (1936) – defendants can’t be whipped until they confess, DP violation
Ashcraft v. Tennessee (1944)
- Hold: this interrogation was inherently coercive. Ashcraft’s confession was not voluntary
- Ashcraft immediately taken to identify wife’s body, questioned until 2 AM. Again on
Saturday too into custody; small room with bright light; no breaks and questioned for 36
hours; officers questioned him in “relays” because they were so tired themselves

Leyra v. Denno (1954): man had acute sinus attack and asked for a doctor; police brought in a
psychiatrist trained in hypnosis; psychiatrist essentially continued questioning and used
techniques to get him to confess
- Hold: this was involuntary – “almost trance-like submission”

Payne v. Arkansas (1958): Chief of Police → Confess or I will let in an angry mob of 30 to 40
people who “want to kill you.” – confession not okay, can’t use threats

Spano v. New York (1959)

- 25-year-old Spano brought in for murder. Called Bruno, a cop trainee and his lifelong
friend, and then turned himself in. Attorney told him not to answer questions and left him
in custody of police. He spoke little English and had developmental delays
- Questioning was “persistent and continuous” for 8 hours, he refused to answer, requested
to speak to attorney and was told no. Cops used Bruno – had him tell Spano that he was
in a lot of trouble and would lose his job if he did not confess. Spano finally confessed
- Hold: totality of circumstances points toward this being an illegitimate confession
o Spano’s will was overborne by official pressure, fatigue, and false sympathy

Involuntariness Post-Spano
Blackburn v. AL (1960): coercive tactics that exploit D’s mental illness
Townsend v. Sain (1963): “truth serum” (date rape” drug)
Mincey v. Arizona (1978)
- Defendant questioned in ICU bed of a hospital
- Said he didn’t want to talk, weakened by pain and shock, isolated, without counsel, and
barely conscious, his will was simply overborne

Colorado v. Connelly (1986)

- Connelly approached off-duty officer and confessed to a murder. Officer Mirandized him
and asked him some questions, where Connelly appeared competent and led police to
crime scene. Turns out he had a history of mental illness and “voices told him to confess”
- Hold: not involuntary if there is no coercive behavior by police – need coercion element
o Suspect’s mental state alone does not render a statement involuntary
o Suppressing this would have no deterrent effect on police conduct and would
force courts to have to assess a suspect’s subjective mental state

Arizona v. Fulimante (1991)

- Confession induced by credible threat of physical violence; informant said “if you
confess to killing your daughter, I’ll offer you protection in jail”

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 - Not the same imminence as Payne because D didn’t realize fellow inmate was an
undercover informant
- Hold: DP violation – D didn’t realize this “fellow inmate” was an undercover informant

The Miranda Doctrine: Privilege Against Self-Incrimination and

Confessions
- Miranda rights hail from the 5th Amendment – right to silence + right to counsel
- Implied rights grounded in the self-incrimination clause of 5A: “No one should be
compelled in any criminal case to be a witness against himself”
- Miranda warnings try to dispel the compulsion inherent in custodial settings
o Miranda issues only apply in custodial settings

Miranda v. Arizona (1966)

- Hold: prosecution may not use statements stemming from custodial interrogation unless
it demonstrates the use of procedural safeguard effective to secure the privilege against
self-incrimination
- Miranda Rights: Prior to any questioning, the person must be warned that
o he has a right to remain silent,
o that any statement he does make may be used as evidence against him, and that
he has a right to the presence of an attorney,
o either retained or appointed to you for free.
 If invokes right to attorney, there can be no questioning
 Note: jurisdictions do not have to provide one before trial (see
Indiana) but then there can’t be questioning before trial
 If D has pre-existing attorney, failure to provide this one is not dispositive
- The fact that a person answers some questions doesn’t mean that the person waived the
right to consult with an attorney or to stop the interrogation at a later point
- Any waiver of these rights must be voluntary, knowing, and willing (express or implied).
No particular order they are given
- Majority concerned with
o Inherently compelling pressures of custodial interrogation
 Acting within a closed, hostile environment is ripe for abuse
o Police brutality
o Police tactics – especially intense and psychologically manipulative at the time
 Isolate suspects, emotional appeals, good cop/bad cop, false line ups,
talking a suspect out of silence and/or a request for attorney
Public Safety Exception
New York v. Quarles (1984)
- Chase through grocery store and apprehend D; D doesn’t have a gun. They asked where it
was and he said “gun is over there.” THEN he was Mirandized
- Hold: Public safety exception (narrow) to Miranda warnings, and he wasn’t exactly in an
inherently custodial setting. Strong interest in safety of locating the gun
o Focus on danger to public, not danger to police

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 o Quarles excuses a Miranda violation, provided police do not resort to actual
coercion to elicit the information.
Note: Terrorism and the public safety exception: potential terrorists are questioned extensively
before Miranda rights
- Broader application of the exception than would be permissible in ordinary criminal case
- Factors to consider:
o Pending terrorist attacks
o Location, nature, and threat regarding weapon
o Identities, locations, activities, and intentions of accomplices
 Ex: Boston marathon bombing

Miranda Custody
 Must first establish that communication is custodial
o If it’s not custodial interrogation, officers don’t need to Mirandize
 But if the person says that he wants a lawyer, the officer still needs to stop
interrogating regardless
 Miranda custody: objective inquiry: viewpoint of a “reasonable person in the suspect’s
situation”
o Officer’s subjective intent is not relevant
o Totality of the circumstances

Berkemer v. McCarty (1984)

- Williams questioned at traffic stop, asked if he had weed and he said yes. Then brought to
the station and questioned some more about the drugs – never got Mirandized
- Hold: A person subjected to custodial interrogation is entitled to the benefit of the
procedural safeguards enunciated in Miranda, regardless of the nature or the severity of
the offense of which he is suspected or for which he was arrested
o Here, traffic stops generally not considered custodial; not like a formal arrest
o They are brief, in public view, and not police dominated/intimidating
o Traffic stops can become custodial if a reasonable person would believe they now
cannot leave
- Roadside statements are admissible. Stationhouse statements are inadmissible, he
should’ve gotten Miranda warnings and was obviously not free to leave.

Stansbury v. California (1994)

- Other driver was a suspect, Stansbury was seen as a material witness. He was questioned
without Miranda warnings and gave incriminating statements, then he was Mirandized
- Hold: whether the person is being questioned as a ‘suspect’ was irrelevant, what matters
is whether the person was in custody

Yarborough v. Alvarado (2004)

- Hold: suspect’s lack of experience with police during interrogation is totally irrelevant
- Didn’t resolve whether age factored into custody assessments. Here, he was 17.5 years
old and it was irrelevant in the custody evaluation
o But police don’t have to consider “contingent psychological factors”

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J.D.B. v. North Carolina (2011)
- JDB, a 7th grader, was taken from class and questioned by a police officer. Never got
Miranda warnings or opportunity to speak with his guardian. After he confessed, was told
by principal he could refuse questions and that he was free to leave
- Hold: Whether it is “custody” for Miranda purposes includes consideration of a juvenile
suspect’s age. The younger the kid, the more susceptible to coercive pressure
- Dissent: parade of horribles – what about developmental delays? Language?

Howes v. Fields (2012) – Fields, an inmate, escorted to conference room where 2 cops
questioned him no Miranda
- General prison population is not per se custodial (see Maryland v. Shatzer)
Two-Step Test:
1. Whether a reasonable person would have felt he was not at liberty to terminate the
interrogation and leave?
a. Age may be relevant to inquiry (J.D.B.); location of questioning is not dispositive;
prior history with law enforcement irrelevant (Yarborough); whether someone
was summoned voluntarily or was ordered
2. Did the environment present the same inherently coercive pressures as the stationhouse in
Miranda?
a. Generally not traffic stops (Berkemer)
- Must satisfy both prongs to be in custody

Miranda Interrogation
Rhode Island v. Innis (1980) – ONLY Supreme Court case regarding interrogation
- Arrestee in back seat. Two cops: “it’d be a shame if some handicapped kid found that
gun.” Man gave in; showed them where the gun was. He was Mirandized multiple times
- Hold: interrogation is any words or actions on the part of the police that the police should
know are reasonably likely to elicit an incriminating response
o Here, suspect was NOT interrogated within meaning of Miranda
 No express questioning (just a conversation…)
 No functional equivalent of questioning
o Subtle compulsion was okay
o No reason for them to know it would elicit a response
- Factors:
o 1. Focus is on perceptions of suspect, not officer’s intent
 Officer’s intent is not irrelevant though – could play a factor as to whether
the police should know that they are reasonably likely to elicit an
incriminating response
o 2. Preying on known “unusual susceptibility”
o 3. “Lengthy harangue”
o 4. Particularly evocative comments
- Dissent: any person would feel compelled to speak at these comments. Allows police to
make statements designed to elicit responses but not phrased as questions

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Illinois v. Perkins (1990)
- Informant told police that Perkins confessed to murder. Police took informant and
undercover office to jail where Perkins was being held for another crime and he boasted
about the murder
- Hold: where suspect doesn’t know that he is speaking to a government agent, there is no
reason to assume possibility that suspect might be coerced
o Miranda is meant to address compulsive, police-dominated atmosphere
o Man was not in Miranda custody in jail

Arizona v. Fulimante (1991) (again)

- Miranda rights were not implicated because he thought that he was talking to another
inmate – he was not aware that he was talking to an agent
- 6th Amendment doesn’t apply to other charges against you
o Just the one in question
- He can only argue Due Process – voluntariness of confession standard

Miranda Summary:
Need (1) custody, (2) interrogation, and (3) testimonial statement
- If all 3 exist, must give Miranda warnings unless public safety exception applies
- At which point, D can (1) waive rights and talk, (2) invoke right to remain silent, or (3)
invoke right to counsel

Miranda Warning Requirement

Implied Waiver
- North Carolina v. Butler (1979): suspect said that he understood his rights and was
presented with a waiver form; he said that he would talk to officers but refused to sign the
form; he then made inculpatory remarks
o Rule: waiver can be inferred from a “course of conduct” – i.e. the actions and
words of the person interrogated
o Held: no 5A violation – there was no express waiver, but he still chose to speak
with the officers even if he did not actually execute the form

Reasonable Conveyance
California v. Prysock (1981)
- “you will have a [free] attorney when you go to court and you can have one now (during
custodial interrogation) if you wish”
- Hold: sufficient to convey required Miranda warnings relating to the right to have
counsel present. Language variation okay as long as meaning “fully conveyed”

Duckworth v. Eagan (1989)

- “we have no way of giving you a lawyer but one may be appointed in court if and when
you go to court.”
- This was okay – accurate depiction of Indiana’s procedures
Florida v. Powell (2010) – essential info conveyed, “you have the right to talk to an attorney
before answering any of our questions”

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For a Miranda waiver to be valid:
1. Knowing and intelligent

Moran v. Burbine (1986)

- D was in police custody. Attorney called police and said she was coming. Police assured
her that he wouldn’t be questioned, but they later Mirandized him and he waived
- Hold: valid issue – shitty behavior by cops but the interactions between the officers and
the attorney were unknown to the D and didn’t impact his waiver

Colorado v. Spring (1987) – what is knowing?

- D signs a waiver, questioned about stolen firearms, then starts getting questioned about a
homicide, signed another waiver, and confessed.
- Hold: suspect’s awareness of all the crimes about which he may questioned is NOT
relevant to determining the validity of his waiver
o Cops were not engaging in trickery

Connecticut v. Barrett (1987): got Mirandized 3 times and said he wouldn’t do a wavier, but
still talked (I’ll talk but won’t write a statement without my lawyer.” Waiver is valid. Your
waiver can be knowing and intelligent, even if you aren’t 

2. AND voluntary

Colorado v. Connelly (1986): valid waiver despite that he was in a psychotic state
- Voluntariness depends on absence of police overreaching

After Miranda Invocations

Right to Remain Silent
Berghuis v. Thompkins (2010)
- Thompkins got form derived from Miranda questions, cop asked him to read it aloud. He
was “largely silent” except for a few one-word answers and “I don’t knows.” Was asked
“Do you believe in God?” – got emotional, made incriminating statements
- Hold: must be an unambiguous assertion of the invocation of the right to silence
o If after you’re read your Miranda rights and they are understood, it is presumed
that they are waiving their rights if they begin talking
- Miranda warning given + uncoerced statement + must show D understood those rights
o Here, he got a copy, understood by reading, made clear and read aloud. No
evidence the statement was coerced

Michigan v. Mosley (1975)

- Mosley said he didn’t want to answer questions and Officer stopped interrogated. Never
invoked right to counsel. 2 hours later, different detective questioned him about an
unrelated murder. This detective again Mirandized and he made incriminating statements

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 - Hold: Miranda requires police to advise a suspect of his right to silence and
“scrupulously honor” the exercise of that right by immediately ending questioning once
the right is invoked
o Miranda does not forbid subsequent questioning of a suspect who previously
invoked his right to remain silent
o Per se rule on never interrogating again doesn’t make sense
- Here, Mosley’s initial invocation was scrupulously honored because
o sufficient time passed and he was Mirandized again
o Different officer, different location, different subject matter.
o No one factor is dispositive

Right to Counsel
- The invocation of the right to counsel is strongest tool in suspect’s arsenal
o Invocation of silence buys some time but isn’t as strong
Edwards v. Arizona (1981)
- D Mirandized, asked some questions, then invoked right to counsel. Next day, guards
came to see him and said he “had” to talk to detectives and sent him.
- Hold: 5A violation. He shouldn’t have been subject to further interrogation until counsel
had become available to him, unless the accused initiates the conversation
o Edwards did NOT validly waive his right that morning
- This is why police strain so hard to get someone not to lawyer up
- Note: initiating conversation gets you out of Edwards issue but isn’t necessarily waiver

Smith v. Illinois (1984)

- Detective began reading Miranda rights. When it got to the part with dealing with a
lawyer, responses confusing. Defendant’s initial request for counsel was “unambiguous”
– but the post-request responses to further interrogation may not be used to cast
retrospective doubt on the clarity of the initial request itself.

McNeil v. Wisconsin (1991): invocation under 6A at arraignment does not constitute invocation
for 5A purposes
- When you say that you are indigent and want counsel, that does not necessary mean you
invoked 5A because you’re not at a 5A event
- If you ask for a lawyer under the 6th Amendment, this does not count as invoking the
waiver under the 5th Amendment

Two instances in which a waiver of the right to counsel can be valid and interrogation can
proceed in counsel’s absence
- Initiation of communication by a suspect
- Breaks in custody

Oregon v. Bradshaw (1983) – initiation of communication

- After invoking right, D asked “what’s going to happen to me?” leading to general
conversation. Next day, Mirandized again, took lie detector and incriminated

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 - Hold: initiation because it “evinced a willingness and a desire for generalized discussion
about the investigation” even though ambiguous

Maryland v. Shatzer (2010) – breaks in custody

- 2.5 years between invoking right to counsel and then being interrogated again
- Hold: Edwards did not require exclusion of statements
o Had returned to normal life for some time
o Lawful imprisonment does not create the coercive pressures identified in Miranda
- Majority identifies a somewhat arbitrary “2-week test” for Edwards protection between
breaks in custody

Arizona v. Roberson (1988)

- Roberson arrested for burglary and asserted his right to counsel. 2 days later, still in
police custody, he was questioned about a different burglary and Mirandized again. He
waived them and made incriminating statements about the second burglary
o Inadmissible – he had already expressed his desire for an attorney regardless of
the crime he is being questioned for. Invocation of counsel is non-offense specific
- 6A right to counsel attaches to the crime that you are charged with
- 5A is not offense-specific and can be for another crime

Minnick v. Mississippi (1990): D arrested and asked for counsel; attorney met and spoke with
him; 3 days later, separate law enforcement arrived to question him
- Counsel provided after invocation; resumption and waiver 2 days later
- Held: 5A violation because although they provided him with counsel, mere consultation
is not enough to remove pressures inherent in custody nor terminate Edwards protections
- Officials cannot reinitiate interrogation without counsel present, the accused has
consulted with authority

Contrasting Miranda with Terry

- Miranda custody – it doesn’t have to be just “free to leave” – environment has to have
same coercive pressures of a stationhouse atmosphere – Terry not necessarily coercive

Sixth Amendment Right to Counsel

- The 6th Amendment right to counsel attaches only after formal charges are initiated and is
“offense specific” – attaches only for those offenses that have been formally charged
- No need to invoke 6A, it attaches automatically after indictment

Massiah v. United States (1964): D represented and released on bail; he met with codefendant that he
didn’t know was cooperating; made incriminations in a bugged car to codefendant
- Incriminating statements were deliberately elicited by law enforcement post-indictment
- Hold: 6A violation because when he was indicted, he had the right to counsel
o Even on bail, the charges are still pending, and the government should not be able to
interrogate without counsel present
o Recognizes a right to assistance when a government agent “deliberately elicits”
incriminating statements after a formal charge

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 - Note: 5A is not violated because he is not in custody

Offense-Specific Nature
Texas v. Cobb (2001): D indicted for burglary; represented and released on bail. Father told officers that
he murdered the woman/son; D was read his Miranda rights and showed the officers the location of the
missing bodies
- Issue: if 6A attached to burglary, does it also prohibit uncounseled questions about the “factually
interwoven” felony murder?
- Held: No, 6A only attached to the burglary here
- See Blockburger v. United States (1932): offense #1 requires A, B, C and offense #2 requires B,
C, D. Each one contains an element the other does not and thus is separate offenses.
o If you prove one you do not automatically prove the other one
o But if one felony is subsumed in the other, this is not okay (i.e. theft is A, B, C, and
robbery is A, B, C, D – if you prove R you automatically prove T  they are the same)
- This case is more like A, B, C, vs. D, E, F because burglary and capital murder do not have
common elements

Waiver of the Right to Counsel

- Brewer v. Williams (1977): D was booked and read his rights. Had to be driven from one city to
the other, had a lawyer in each city. Lawyers made it clear that there should be no questions asked
on the drive. Officer gave the man a Christian burial speech knowing that the man was religious.
D then showed the officer the body.
- Hold: 6A violation – there was a deliberate elicitation for incriminating information
o 6A puts the focus on the officer intent (Subjective test)
- More recent opinions using knowing, intelligent, and voluntary standard
- Generally, giving an accused Miranda warnings after formal charging sufficiently conveys 6A
right to counsel, such that Miranda waiver also waives 6A right to counsel
o D waiver of 5A right to counsel includes a waiver for 6A
 Exception: when you do not tell D that lawyer called the station and asked for
you (Moran v. Burbine)  doesn’t violate 5A but it does violate 6A

Invocation – not necessary

- Montejo v. Louisiana (2009): D’s request for counsel at arraignment does not preclude a 6A
waiver of counsel during subsequent police questioning

Identifications
Three types of identifications:
1. Line Ups: traditional form of ID  witness looking at a bunch of people behind a one-
way glass and is asked if she sees the perpetrator among those people
a. No minimum standard for how many people you need
b. Officer would want to do immediately after incident but before formal charges
2. Show Ups: must suggestive type  witness is shown one person and asked if he is the
perp
a. Officer would want to conduct this immediately after incident but before formal
charge
3. Photo Arrays: witness is shown photographs and asked to choose the perp from among
them

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 a. No minimum standard for how many people you need
b. No 6A right to counsel here, therefore officers are most likely to use this ID after
formal charging
- Can implicate 5A – self-incrimination
- Can implicate 6A – if procedure is done after you are charged
- 14A comes into play if tainted pre-trial ID procedure compromises ID procedure at trial
o “very substantial likelihood of irreparable misidentification”

United States v. Wade (1967)

- Wade arrested and got counsel. Without notice to Wade’s lawyer, police did a line-up
where two witnesses identified Wade. This came out at trial.
- Hold: this violates 6A right to counsel. 6A applies at all critical stages of the
proceedings, including a post-indictment lineup (implicating right to a fair trial)
o Does not necessarily require a new trial. State can prove that there was an
“independent source” for the courtroom ID, i.e., arose from circumstances distinct
from the lineup and so not the fruit of illegal procedure (like a kidnap victim.
Consider lighting, time, obstructed view, face-to-face encounter)
- No 5A issue – this isn’t testimonial so no self-incrimination issue

United States v. Ash (1973)

- Lineup done for 4 witnesses. All made uncertain IDs of Ash. Prior to trial, prosecutor did
photo line-up, and 3 of them IDed Ash.
- Hold: police may conduct a post-indictment photo ID outside the presence of counsel
o Accused himself isn’t present, no risk he might be misled or overpowered
o No trial-like confrontation
 Not same risks as were present in Wade
- Dissent: manner of presentation of photos may be unfairly suggestive

Stovall v. Deno (1967)

- Wife was stabbed too, dying in hospital and they bring in suspect (show-up)
- Hold: totality of circumstances, an immediate hospital confrontation was necessary

Foster v. California (1969)

- A pretrial ID was so unnecessarily suggestive and conducive to irreparable mistaken ID
that the introduction of testimony regarding that identification violated due process
- Two line-ups – defendant was only same person in both. He was taller than everyone. D
was seated across from witness and they asked “is it him?!” Witness was still uncertain
- Only SCOTUS case to find a due process violation

Manson v. Brathwaite (1977)

- Undercover cop observed informant with drug transaction; went to HQ and described
guy. Another cop had an idea of who it was and got a photo, left it in undercover’s office.
When alone later, undercover viewed the photo for the first time and IDed the defendant
- Issue: admissibility of pre-trial photographic show-up

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 - Hold: reliability is the linchpin in determining the admissibility of ID testimony. when a
pretrial ID procedure is “unnecessarily suggestive,” courts must weight its “corrupting
effect” against its reliability to determine if due process is violated
- 5 indicia of reliability
o 1. Opportunity for witness to view the criminal at the time of the crime
 Here, Glover stood and watched him for a few minutes, it was near sunset
but bright enough
o 2. Witness’ degree of attention
 Trained police officer on duty
o 3. Accuracy of his prior description of the criminal
 Gave D’Onofrio the description minutes after the transaction with lots of
detail
o 4. Level of certainty demonstrated at the confrontation
 No dispute that photo in question is that of respondent. Glover also is
totally confident
o 5. Time between crime and confrontation
 2 days, not like weeks
- Use Manson balancing test when ID is unnecessarily suggestive
- Conclusion: Exclusion of pretrial identification is warranted if, based on a totality of the
circumstances, after balancing the identification’s corrupting effect against its reliability,
the court concludes that there is “a substantial likelihood of misidentification

Perry v. New Hampshire (2012)

- Neighbor IDed Perry as he was standing next to another police officer
- Law enforcement didn’t arrange this as an unnecessarily suggestive procedure
o Due process balancing not necessary

State v. Henderson (NJ 2011): can give enhanced jury instructions on eyewitness identifications
– variables that affect memory. Ex: stress, presence of a weapon, duration, distance, lighting,
witness’s age, race bias, etc.

Exclusionary Rule
- Extends only to violations of federal law
- Evidence obtained by unconstitutional search or seizure shall be excluded from the
criminal prosecution of the party whose rights were violated UNLESS exception applies:
o Standing
o Independent source
o Inevitable source
o Attenuation
Weeks: home invasion without a warrant  you can’t use items taken at trial.
Calandra: indicates SCOTUS’s newfound willingness to be flexible with this rule  “it a judicially
created remedy for deterrent effect  not personal constitutional right.”
Mapp v. Ohio (1961) – constitutionalizes Exclusionary Rule

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 -Hold: Evidence obtained through an unreasonable search and seizure in violation of 4A is
inadmissible in state criminal proceedings
o Exclusionary rule applies to state actors/court
- Mapp was never as strong as the day it was handed down
Reasoning
- Deterrence – Growing understanding that only the exclusion of illegally obtained
evidence will incentivize the state to refrain from unreasonable searches and seizure
o what else could you do? Hold police accountable civilly or personally? Probably
unlikely though (qualified immunity, etc.)
o what could you do to promote deterrence? Financial, personal, employment
repercussions…etc.
- Judicial Integrity – if courts allowed this evidence to be used, it would undermine their
own legitimacy
- Symmetry Between State and Federal Systems – evidence could be admissible against
you in the state proceeding yet excluded in federal which led to different outcomes
- Symmetry with Treatment of Other Treatment of Constitutional Violations (e.g. coerced
confessions under Brown, Ashcraft, Spano)

Standing Limitation
- You have to be able to get into court to address wrongfully obtained evidence
- Must have ownership/possession of the property seized, OR a possessory/ownership
interest in the area searched to have standing to exclude evidence
Jones v. United States (1960)
- Jones was a guest in apartment where contraband found. Test: you have standing if
legitimately on the premises during the search to challenge the search and charged with
non-possessory offense; also “automatic standing” for possessory offenses

Simmons (1968) (not included)

- Nonpossessory offense (armed robbery) – no automatic standing
- Suitcase in basement of mother’s house, he wasn’t present at time of search
- Only way to gain standing is claim he owned the suitcase. Possessory conundrum:
o I want to move to suppress these drugs – I want standing because they’re mine.
Any testimony you do at the suppression hearing will be introduced at trial, and
then you’re caught
- New rule: at trial on issue of guilt/merits, cannot use testimony from evidentiary suppression
hearing. Possessory or not

Rakas v. Illinois (1978)

- Rule: A passenger in a car belonging to someone else does not have a legitimate expectation
of privacy in the car or in items found in the car that do not belong to him and thus may not
challenge the search of the car or seizure of the items as unconstitutional.
- Standing Options:
o 1. Anyone legitimately on the premises
 This rule is too broad taken literally.
o 2. “Target” theory – rejected

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 Permits D to assert a violation of the 4A rights of a 3P to entitle him to have
evidence suppressed at trial. 4A rights may not be vicariously asserted.
 i.e. wait until the guy we want is in your car. Then you pull the car
over, you search that he had contraband that he lodged in the car. You
got standing if you were the target of the search
o 3. Majority chooses: Did the defendant have a legitimate expectation of privacy in
the area searched
 No expectation of privacy here – mere presence as an invitee is not enough
 There is a lesser interest in a car in the first place, and as a friend

Byrd v. United States (2018)

- Had someone else do paperwork for rental car he was driving
- Hold: Byrd is legitimately on the premises
o He was the only one in the car – no control, possession, or right to exclude others
o Consistent with Rakas, doesn’t mean that ‘passengers’ never have a privacy interest

Rawlings v. Kentucky (1980) – narcotics in purse belonging to D’s acquaintance

- Defendant tried to assert privacy interest in the drugs, but he had no privacy interest in the
purse. He didn’t know her, never sought access to the purse. He didn’t have a possessory
interest in the purse. Hold: no privacy interest
- Search must not be remote in time or place from the arrest, and it can precede a “formal”
arrest provided the two events occur in close temporal and spatial proximity

United States v. Payner (1980)

- Payner, customer targeted, didn’t have standing to challenge the search
o Client has no privacy interest in the searched banker’s effect
- Note: agents knew Payner lacked authority to challenge the search but it didn’t alter the
analysis

Invitees – Standing
Brendlin v. California (2007) (again)
- Both drivers and passengers are seized in a stop, either can challenge the stop in court
- If stop is unreasonable, it violates passenger’s rights. Didn’t resolve question of whether that
entitles passenger to suppression of evidence found in subsequent search of illegally stopped
vehicle

Minnesota v. Carter (1998)

- Police saw people bagging cocaine through drawn window blind
- Hold: no 4A violation – more just like people on the premises, they had no standing
o Commercial nature of transaction
o Relatively short time
o Lack of connection to homeowner

Independent Source and Inevitable Discovery Doctrines

- “Direct” evidence: evidence directly linked to the constitutional violation
o Ex: incriminating statements obtained without proper Miranda
- “Derivative” evidence: fruit of the poisonous tree (secondary)

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 o Ex: confession obtained as a result of an earlier unlawful arrest (Wong Sun); the
discovery of the girl’s body in Brewer
o Derivative evidence is somewhat attenuated

Independent Source Doctrine

Murray v. U.S. (1988)
- Agents observed two vehicles enter a warehouse and leave 20 minutes later with large
containers. They stopped them and found weed. After hearing about the weed in the cars, the
agents at the warehouse went inside and saw some bales. They waited for a warrant
- Warrant application did not mention the prior entry
- Hold: if warrant application was based entirely on an independent source of probable cause,
the exclusionary rule does not require suppression of evidence
o Lawful seizure must be genuinely independent of an earlier, tainted one

Inevitable Discovery Doctrine

- Evidence was seized illegally but was not re-seized legally later, rather it is allowed in
because it would have inevitably been discovered based on the state of the investigation
- Must be proven by a preponderance of the evidence
o There is no absence of bad faith requirement

Nix v. Williams (1984): conducting grid search – grid is split into 6 quadrants. Started at
quadrant 1; body was discovered after Christian Burial speech; body would’ve been found
inevitably anyways
- Through the grid system, the police could prove that law enforcement would’ve found the
body in a short period of time anyways
- Held: evidence of the body is admitted, even though obtained in violation of 6A

Attenuation Doctrine
- Allows introduction of testimonial evidence linked to prior unconstitutional conduct, but
where the incriminating statements are product of defendant’s own free will
Brown v. Illinois (1975)
- Officers broke into D’s house and waited for him; scared him at gunpoint into confessing
- Hold: Miranda warnings alone do not guarantee admissibility for statements made
following an unlawful arrest. Brown’s statements are inadmissible
- Rule: in assessing the attenuation of the causal link, consider the following factors:
o 1. The temporal proximity of the unconstitutional conduct to the acquisition of
evidence
o 2. Whether any significant events have intervened between the illegality and the
acquisition of the evidence, and
o 3. The purpose and flagrancy of the misconduct
- Government tried to argue that Miranda is curative
o Court said that this is a factor to be considered, but it’s not dispositive
- Must purge the taint – statements could be admissible if they are truly acts of free will

Hudson v. Michigan (2006)

- Held: K&A rule and execution of warrant are separate events  we let the evidence in

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Three Benchmarks for Attenuation:
- 1. No “but-for” causal link between the constitutional violation and the evidence
discovered
o Here, one indivisible 4A wrong vs. 2 separate 4A events, one permissible and one
not)
- 2. There is a direct causal relation (but-for causation) but either:
o a. The causal link was too attenuated to justify exclusion (Wong Sun, Streiff)
o b. Exclusion doesn’t serve the interest of the constitutional guarantee that was
violated
 The offense here is not that egregious
- 3. Balance the deterrent value of excluding evidence (deter cops from entering too
quickly after K&A) vs. the social cost of exclusion (let criminal loose despite the
evidence you have against him)
o If all else fails, balance. The more severe the crime alleged, higher the social cost

United States v. Leon (1984)

 police rely on warrant that did not have probable cause, but they reasonably relied in
good faith. Four exceptions though (below)
o Deterrence
 exclusionary rule is designed to deter police misconduct rather than to
punish errors of judges and magistrates
 Magistrate just messing up is not really a lawlessness of 4A though
 She didn’t stand to gain anything from illegally granting a warrant.
 Social cost of exclusion – pretty high, letting criminals go
o Held: since the objective conduct of the officer was made in good faith, the
evidence is allowed in. no “substantial and deliberate” violation
Four Exceptions to the Good-Faith Doctrine – 4 instances where cop cannot claim good faith
when judge errs (many states have rejected this (NY but not NJ) because it heavily favors cops)
- Affidavit supporting the warrant application is so egregiously lacking in probable cause
that no reasonable officer would have relied on it
- The warrant is so facially deficient in particularity that officers could not have
reasonably presumed it to be valid
- The affidavit relied upon by the magistrate contains knowing or reckless falsehoods that
are necessary to the probable cause finding
o Beyond criminally negligent
 The magistrate who issued the warrant is biased in favor of the prosecution
o This is rare but i.e. when warrant is issued without even looking at the papers

Illinois v. Krull (1987)

- Good faith exception: officers conducting search had acted in objectively reasonable
reliance upon a statute authorizing the search. The error is that of legislators, no police
error to deter

Arizona v. Evans (1995)

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 - Good faith exception: if an officer arrests based on a computer record that erroneously
indicates the existence of an outstanding arrest warrant, evidence found as a result of that
“unreasonable” arrest is admissible if the officer acted in objectively reasonable reliance.
Can’t deter clerical error behavior of court employees

Herring v. U.S. (2009)

- Officer reasonably believes there is an outstanding arrest warrant, but that belief turns out
to be wrong because of a negligent bookkeeping error by another police employee
- HOLD: exclusionary rule serves to deter deliberate, reckless, or grossly negligent
conduct, or in some circumstances, recurring or systemic negligence. The error in this
case does not rise to that level
o Error was merely negligent, not knowing
o Error was isolated, not systematic
o Error was attenuated from the arrest (came from another county)

Oregon v. Elstad (1985)

- officer asked kid in his living room if he knew about the burglary and he said yes. He was
brought to the police station and then Mirandized and gave full statement
- where there is actual coercion, the court must determine whether presumption that
coercion has carried over into second confession is overcome using following factors:
o 1. Passage of time
o 2. Change in location of the interrogation
o 3. Change in identity of interrogators
- Procedural Miranda violation is different from 4A. Miranda is a procedural safeguard;
not a constitutional right. Exclusionary rule seeks to deter illegal police conduct, and
purpose of 5A is to ensure trustworthy evidence
- Hold: A subsequent statement made after Miranda will be inadmissible if it is coerced,
there is no such presumption arises due to the initial Miranda violation
o No indication Elstad’s initial statement was anything but voluntary.
o Unwarranted admission doesn’t mean compulsion. Subsequent Miranda warnings
should suffice to remove conditions from earlier statements

Missouri v. Seibert (2004)

 question first, ask later technique – question without warnings and get confession, then
provide warnings, get waiver, and repeat question until suspect confesses again
 Differs from Elstad because this is deliberate and seems more scripted
o This methodology makes Miranda warnings ineffective
 Plurality: inadmissible – no “genuine choice” presented to suspect
 Miranda warnings are ineffectual if inserted in midst of coordinated and continuing
interrogation, integrated and proximately connected questioning
o Souter thinks “blink and you could’ve missed it (the warning)”
 Kennedy Concurrence: Elstad governs unless the two-step interrogation technique was
used in a calculated way such as to undermine the Miranda warnings.
o Where deliberate two-step technique used, incriminating statements not purged
of taint and are excluded UNLESS curative measures exist

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  i.e. a substantial break in time and circumstances or notification to suspect
that first statement is likely inadmissible.
 Burden is on the prosecution to disprove deliberateness by a
preponderance of the evidence.

United States v. Patane (2004)

 D arrested for violating restraining order; officers began to read him his rights and he
interrupted stating that he knew them. Officers stopped; then D admitted to having a gun

o Rule: Miranda violations require suppression of statement only, not physical

(nontestimonial) fruits. Gun admitted into evidence
 BUT physical fruits of statements that are actually coerced (due process
violation) are excluded

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