Mastering Crim Procedure

Class Notes Carolina Academic Press- Ellen

Sunday, January 8, 2023 12:09 PM

• Professor's advice for studying

○ Book-gospel
○ Barbri outline and questions (only crim pro 1)
○ Understanding Crim Procedure (Joshua Dressler)-LexisNexis (best horn book)
▪ Understanding Law Series on LexisNexis
• Will have a midterm, not two assessments.
○ Midterm-20%
▪ One brief essay ? and 10 M/C
○ Class Participation-10 points
• Monday will be on Midterm, but not that Wednesday the week of the midterm
• Zoom Review night before exam- 6-8pm
○ Personal Zoom Link on syllabus
• Review Essays right around April

Criminal Procedure-primarily Am.an crim procedure= 4th, 5th and 6th Amendments of Const.

• What we know as Crim Pro was created after Jan. 1, 1960.

Bill of Rts against fed gov, and exercise of fed power to the citizens, not applicable to the st.s

Chapter 2: Searches and Seizures of Persons and Things

I. INTRO TO 4TH AMENDMENT

a. Fourth Amendment- guarantees that the rt of ppl 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/affirmation, and particularly describing the pl to be searched, and the persons or things to be
seized
Blue-scope of the 4th
Red- Reasonableness Clause
Green- warrant clause
Underlined-contested terms,
see gen.ly pp. 33-38

i. Scope of the Fourth

□ Houses-where ppl live and keep their things (and enclosed bus premises-which counts as barns too),
papers-diaries (priv stuff written), effects- (two types of tangible prop-real estate and personal prop) so
effects are personal prop (understood as personal prop in torts-stuff you can pick up and carry out of
your house) (not real estate)
ii. Reasonableness Clause
□ Protects you against unreasonable searches and seizures
□ Determines whats reasonable
□ Third most important part of the Amendment
iii. Warrants Clause
□ If a warrant does issue (doesn't say you HAVE to have a warrant issued)--> this is a prob we'll discuss
later) (but really, you have to ALWAYS have a warrant unless an exception applies)
 Particularity requirement- describing place or be searched and persons/things to be seized
□ Considered the second most important part of 4th A-- before ANY S&S, must have a warrant (court
issued)
 Presumption- must get paper from court, but if don't get that.. then what happens?
 Ct starts carving out exceptions to Warrant Part
◊ Where evid is seized, pursuant to unlawful S&S, and it's presumption that any S&S w/o a
warrant first is unreasonable, then it's suppressed and not admissible to trial. Therefore,
evid gone
◊ Exceptions (16)

Class Notes Page 1

 ◊ Exceptions (16)
 Process Example
– D files motion to suppress
– Then Pros pulls up automobile exception
 First, Prove that it's a warrant exception, by a preponderance of the evid,
that you don't need a warrant first
 Three req.s of exception-
 Vehicle; it was in a pub pl (not in a garage/house/etc); at the time
we opened the trunk/etc we had FULL probable cause (as to there
is evid of a crime or contraband, where to about)
 Second thing have to prove: meet elements, by a preponderance of evid,
thru filings or Ws
– Preponderance of evid-std that Gov has to rebut
– So once rebutted, then evid comes in
▪ Silent on consequences

b. Reiteration
i. Two Clauses
1) Reasonableness
2) Warrants
ii. Reasonable S&S (fin PP)

c. 4th A Checklist
i. The Peeps test
□ Rts of the Ppl (have to be the right kind of people)
If don't check
□ Must be a US citizen
all 5, then no remedies
□ Also doesn't apply if prop searched is another country
ii. Gov Conduct
But if check all 5, may
1) Public v. Priv Search
have a rememdy
 Has to be gov.al action
2) Was the person who did the search or seizure an "agent"?
iii. Was there a "search" or "seizure"?
1) Search-
2) Seizure-
iv. Does the D have "standing"?
□ Have to be the right person to bring the claim; Be the person incurring a legal injury
 Can't be random person watching a stabbing thru a window
 Must be victim, or fam mem, or spouse/etc
□ If don’t have standing to bring 4th A rights, then can't complain about rts being infringed
▪ IF YES, to all of these, then proceed… to substantive analysis

v. Was the search or seizure justified?

Class 2 1) Warrant req.d?
a) If so, were the warrant req.s met? (see future frame)
 Almost always for:
◊ Home, residences, motel rooms, apartments-where you live, rest, eat, sleep, etc.
◊ Office and most enclosed bus premises- warehouse, storage unit, barn, etc
2) Warrant not req.d? Almost everything else.. But still need:
 Probable cause?
 "reasonable articulable suspicion"?
 consent?
 exigency?
 "special needs" search?
 border searches

vi. Remedy-- EXCLUSIONARY RULE (if checked every both, then must do this)
1) Exclusion/Suppression of Tainted Evid
Must be nexus b/w gov/police illegality and seizure of evid

Class Notes Page 2

  Must be nexus b/w gov/police illegality and seizure of evid
 Another way to express it: must be proximate cause connection b/w police illegality and
seizure/acquisition of evid

2) Exceptions to exclusionary Rule

a) By Category
◊ Independent Source
◊ Ultimate/Inevitable Discovery
◊ Attenuation

b) U.S. v. Herring
◊ Deterrence

d. SHEALY'S WAY- Another way: Focus on Prop Searched or Seized

i. PROPERTY AND LVLS OF PRIVACY
□ Const. protects "persons, houses, papers, and effects":
a) Residences & Enclosed Bus Premises
◊ Home, office, warehouse, some outhouses, enclosed garage, hotel room, etc
1. Figure out ◊ Rule: Need warrant!
what prop  Only exceptions: exigency and consent
is being b) "Containers"
considered ◊ Book sack, backpack, briefcase, paper bag, lockbox, etc (laptop)
 If you have full PC, then you may seize container from person but may not open it
– Diff b/w seizure and searches. May have one w/o the other
 Container- contains information
◊ Rule: Warrant exception applies. Need full Probable Cause to seize, BUT need warrant to
search
c) "Persons"
◊ Your body (strip search), clothing, wallet, pockets, maybe purse or backpack in your
immediate possession, et
◊ Rule: warrant exception gen.ly applies. Need warrant for misdemeanors not committed
in officer's presence. Only need full PC for felonies and misdemeanors committed in
officer's presence
 If they have full PC to believe you have committed a felon, they can arrest you on the
spot
 Arrest rule for:
First. Felony- determined by juris
 If actual incarcerated for more than a yr, then a felony (this is the test)
ROT: (by looking at statute)
if container in Second. Misdemeanor- full PC needed for misdemeanors COMMITTED in officer's
something, presence
bigger object d) "Vehicles"
controls lesser ◊ Car, truck, plane, sleeping car on train, boat, boathouse, camper, etc
objects inside ◊ Rule: Complete warrant exception applies. Only need PC to search vehicle and all
containers therein, provided vehicle is in pub pl. Thuse, must have (1) vehicle, (2) in pub
pl, and (3) full PC.

ii. Cont..
□ Residences and enclosed bus premises get the highest lvl of protection. Vehicles get the least. (So it's in
order)
□ "Open fields": not rly a 5th class of prop, just not classified as a "person, house, paper, or effect". See
"Open Fields" Case
□ "Papers" that are protected are always "in" something: house, office, container, vehicle. If search meets
criteria for one of these, then search and seizure of "papers" is good

e. Searches and Seizures

Class Notes Page 3

 e. Searches and Seizures
i. Distinguish b/w S&S
ii. Both Covered by Amendment
iii. Rules Governing the Two Differ
iv. Distinguish b/w substance and remedies
D's BoP
to prove
warrant is bad

II. "Search"
○ The Importance of Deciding "What is a Search" (most important box to be checked)
i. If there is a search, Fourth Amendment applies
□ Probable Cause and/or Warrant, etc.
ii. If there is no search, there are no Const.al Rules
□ Law Enforcement can act whenever and as often as they like w/o 4th A Restrictions
iii. Thus, it's critical to decide if there's a search

a. Physical Intrusion Test

i. Olmstead v. US (no longer good law)- traditional trespass law
□ Phone intercepts
□ Search must be of physical things, p. 45
□ 4th A doesn't cover phone wires
□ Lim.d to language of 4th A: persons, houses, papers, and effects
ii. See pp. 51-53
iii. Rule: must have a physical TRESPASS

iv. Common Law Trespass

□ Gen.ly, a trespass refers to a wrongful use of another person's prop w/o his or her permission. Under
Intentional Torts, there are two types of trespass: (1) trespass to chattels and (2) trespass to land.
 Trespass to land- unlawful entry or use of another person's land w/o the O's permission or
reason. excuse
 Trespass to chattel- intentional interference w/ another person's lawful possession of a personal
prop.
◊ "Chattel": any personal prop, moving or non-moving.
◊ Doesn't apply to real prop or any int in land
◊ Interference of Chattels: a person commits a trespass to chattel by:
One. dispossessing another of the chattel,
Two. using or intermeddling w/ a chattel in the possession of another, or
Three. damaging the chattel.
 Interference does include dispossession of a (FIN)
b. Some Pre-Katz Cases
i. All not prop/trespass
□ Goldman (1942) detectaphone not a search (FIN)

c. More basics
i. "The People" p. 34
ii. 4th A silent on consequences of violation, pg. 26
iii. State Action Requirement, pg. 38
□ See US v. Jacobsen (TWEN)
iv. Foreign officials, pg. 39
□ May use evid provided by foreign officials
□ Search on foreign lands (fin)

d. Katz v. US (1967)
i. Background
□ Phone booth tapped, by "stethoscope" aka no physical intrusion but able to hear from the outside.
 Wagering info transmitted by phone
Katz in LA, phones: miami and boston in phone booth

Class Notes Page 4

  Katz in LA, phones: miami and boston in phone booth
Objective +  FBI listen in and record by device placed outside of the booth
Subjective prongs-  Convicted of illegally transmitting wagering info
need both  C.A. Affirms--> No physical entrance into area occupied by Katz
□ Ct held that cops protected by 4th A b/c unwarranted listening to convo is considered a search
a) Katz II
i. SC rejects "const.ally protected area" analysis
ii. 4th A "protects ppl, not places"
iii. Overrules Olmstead (1928) and Goldman (1942) (no search absent trespass-- i.e.,
penetration of the area)
iv. "The Gov's activities in electronically listening to and recoding the petitioner's words
violated the privacy upon which he justifiably relied while using the telephone booth and
thus constituted a 'search and seizure' w/in the meaning of the 4th A"

b) Katz III and IV

i. Katz was believed to expand 4th A protections
1) For 45 years, it appeared that trespass was irrelevant and was replaced by the Katz
test
2) But then "Along Came Jones"

□ Justice Harlan's Concurring Opinion RULE:

 (what's cited by courts now) (pg 57, fourth line) (KNOW THIS)
 My understanding of the rule that has emerged from prior decisions is that there is a twofold req,
first that a person have exhibited an actual (subjective) expectation of privacy, and second, that
the expectation be one that society is prep.d to recognize as "reasonable"
◊ Know this word for word
 "subjective"-
 "reasonable"-

ii. Search was "physical trespass" before this

e. US v. Jones (2012)
i. Case info
1) Facts:
a) Gov obtained warrant (fin)
2) Issue: Whether the attachment of a GPS on an individual's car and subsequent use of the devise to
monitor the movements on pub st.s, constitutes a search or seizure w/in the meaning of the 4th A?
3) Rule
 The warrantless placement of a GPS tracking device on the undercarriage of an individual’s
vehicle in order to track the person’s movements on public streets constitutes an unlawful search
in violation of the Fourth Amendment.
4) Reasoning
 Yes. The Fourth Amendment provides, in part, that the people are to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures. A vehicle is an “effect”
for Fourth Amendment purposes. Thus, the government’s installation of a GPS device on Jones’s
vehicle constitutes a “search.”
 The issue is whether the placement of the GPS device on Jones’s vehicle to monitor his
movements was done in violation of the Fourth Amendment. Historically, the Court’s Fourth
Amendment jurisprudence was property-based and reflected the notion that a person had a right
to be free from unreasonable searches and seizures in their persons, houses, papers, and effects.”
Later, the Court deviated from that exclusively property-based approach and began to hold that
the Fourth Amendment “protects people, not places.” Katz v. United States, 389 U.S. 347, 351
(1967).
a) "We hold that the Gov's installation of a GPS device on a target's vehicle, and its use of that
device to monitor the vehicle's movements, constitute a 'search'"
b) The text of the 4th A reflects its close connection to prop, since otherwise it wd have referred
simply to the 'rt of the ppl to be secure against unreason. searches and seizures'; the phrase 'in
their persons, houses, papers, and effects' wd have been superfluous

Class Notes Page 5

 their persons, houses, papers, and effects' wd have been superfluous
c) Consistent w/ this understanding, our 4th A jurisprudence was tied to CL trespass, at least until
the latter half of the 20th century. (1967 was when SC unhinged that connection)
ii. Viewed as the resurrection of trespass
1) Don't overrule Katz Two Prong test
2) But Jones is a diff test for a search
a) What is a search? It's a trespass
b) The chattel is the car
□ SO TWO TESTS:
a) Katz Two Prong Test
b) Jones Trespass CL Test
□ On the exam: for a search question to analyze
 Doesn't matter which test
◊ Have to check the Katz test
◊ Or check the Jones test
 If check either one, then there's a search
◊ If don't check either, then STOP the analysis. No search. 4th A analysis ends.
◊ On an exam, mention both

*don't need to know diff justices*

iii. Exceptions to Jones test --> An exception to it's own rule or own test---> These are acceptable searches
1) OPEN FIELDS TEST
Remember this i. What are open fields?
for test  Hester case
ii. Post Katz/Olmstead Cases
 Oliver case
2) Exterior of a vehicle is not a search
 NY v. Class
◊ Katz Test used
3) Beeper Cases->
 Karro and Knotts

iv. Interests Protected

□ Innocent people have these interests in avoiding S&Ss (so an exception to it's own rule or own test)
a) Avoiding physical disruption and inconvenience
b) Avoiding disclosure of personal or embarrassing info
c) Controlling Use of Prop

f. Abandonment:
□ Often found when a person denies Oship of a container in the face of police inquiries
i. No expectation of privacy
ii. Need not to be explicit
□ Ex:
 Failure to pay rent for apartment
 Failure to pay rent for mailbox
 Person denies Oship of container in face of police inquiries
iii. Smith v. Oh (1990): No abandonment when D threw bag on the hood of his car after being approached by two
plainclothes officers, and the D tried to grab the bag when asked what was in it
iv. Often this issue is considered as a ? of whether the D has "standing" to assert a 4th A issue

g. Oliver v. US (1984) --> Open Fields

i. Facts
□ St police officers drove past O's house to a locked gate w/ a "no trespassing" sign, took a footpath
around one side of the gate along the rd for several 100 yards before finding a field of marijuana
ii. Held: No expectation of privacy in open field and that steps taken to protect privacy don't establish that
privacy in an open field is legitimate
□ "In the case of open fields, the gen rts of prop protected by the CL of trespass have little or no relevancy

Class Notes Page 6

 □ "In the case of open fields, the gen rts of prop protected by the CL of trespass have little or no relevancy
to the applicability"
 AKA a mere trespassing sign isn't going to be enough.

▪ Keep in mind, that if place where agent/police/etc saw/smelled/touched something, do they have a rt to be
there?
□ If it's a place that's open to the public, or where a priv citizen can lawfully be, then they're okay
 Consider: is what the officer doing civilly actionable?
 Consider where the agents are when they see something

Class 4 h. US v. Dunn (1987): importance of determining curtilage vs open fields in real prop
i. Facts
□ Barn 50 yds from residence fence on 200 acres outside the curtilage
□ Dunn had exterior and interior fences and posts and barbed wire

ii. 4 Factors:
1) Proximity of area claimed to be curtilage to the home
2) Whether the area is w/in enclosure surrounding house
3) Nature of uses to which area is put
4) Steps taken by O to protect the area from observation
 "steps taken by the resident to protect the area from observation by ppl passing by"

iii. Ct rejects gov. argument for "bright line" rule that curtilage shd extend no further than the nearest fence
surrounding a fenced house
□ Everything w/in curtilage- part of the house
 House- bubble around them. "Dwellings"
◊ In terms of trespass, can't open window/go in.
 Call it curtilage (instead of a bubble/force field)
◊ Area around home protected. If you cross over it, mt as well have walked in the front door
 No curtilage for apartments on sidewalks downtown, but if it's gated community,
then curtilage.
◊ Curtilage-- better have a warrant before you enter, or consent by the O
□ Everything outside of the curtilage- part of open fields

i. Implied Permission to Enter Curtilage--> Florida v. Jardines

i. Modifies physical intrusion test from Olmstead and Jones
ii. Facts:
□ Detective P gets unverified tip that J is growing weed in his home
□ DEA sends surveillance team to house
□ Detective/dog handler takes drug-sniffing dog on porch of house
□ Dog "alerts" and sits at base of door
□ Detective P gets warrant

iii. Here, implied invitation didn't apply to a dog, only neighbors/priv citizens/etc
□ Tho Cts look at police dogs or trained K9s, as officers.
 Ex: police can't jump over fence to investigate, then K9s can't

▪ NOTE: Knock and talk- perfectly legitimate

1) If there's been a shooting/burglary in an apt complex (some crime), can knock door to door to see if ppl
saw something
2) What happens w/ these things, items are in "plain view" of the officer

▪ Exception to curtilage: Implied Invitation

□ If prop not posted "no trespassing, no soliciting, etc", if it's just a regular home, it's an implied invitation
to the public to come to your doorway and knock (in CL)
□ Therefore, police can come up to front door (even if unlocked gate/etc)

Information Voluntarily Shared w/ 3p.s

Class Notes Page 7

○ Information Voluntarily Shared w/ 3p.s
i. Consensual Electronic Surveillance: Misplaced Trust

□ US v. White (1971)
 Facts: Electronic transmission
◊ Informer carrying radio transmitter engaged D in convo overheard by agent
◊ No expectation of privacy
◊ "one contemplating illegal activities must realize and risk that his companions may be
reporting back to the police"
 Plurality Opinion (Black concurred in result)
 Douglas dissented, Harlan dissented, Marshall dissented, and Brennan concurred in result on diff
ground
 Similar to On Lee, Lopez, and Hoffa, supra

ii. Financial records and Phone Calls (pg. 81)

1) Cali. Bankers v. Schultz (1974) --> Records
a) Record-keeping and reporting of certain transactions
◊ Can send grand subpoena to bank to get how you spend money
◊ Also to phone co. to see subscriptions
◊ B/c info voluntarily given to these companies.
 3p w/ who you banked w/, Credit card w/, etc
b) No expectation of privacy
2) US v. Miller (1976)--> Subpoena for Bank Records
 No expectation of privacy
3) USA Patriot Act-§ 215
 Expands ability to obtain records
4) Smith v. MD (1979)-> Pen Register: No privacy expectation
 Electronic Communications Privacy Act of 1986 req.s provider consent or ct order
◊ Subscriber info
 But can send subpoenas out to see who pays phone bill, etc
◊ Can't get phone convos, content of text, w/o ct order (search warrant)
□ It's diff situation when it's active time calls/texts/etc

○ Gov. Investigative Activitiy Subsequent to Priv. and other Lgl Searches

▪ Private Action
1) 4th A applies only to Gov Actors
2) Reopening permitted: US v. Jacobsen, see TWEN
 Private searches are off limits, and Gov can use the fruits from them
 Not a "search" under the 4th A b/c the police found nothing more than the priv carrier had found
◊ Moreover, the warrantless field test of a substance found in the package to determine
whether it was cocaine was not a 4th A "seizure", even tho the testing went beyond scope
of OG priv search
3) Skinner (1989)-- Gov may induce priv actors to act and trigger 4th A
4) Limits Imposed by the Initials Search
 Walter v. US (1980)-- Recipient opens carton and calls FBI who views film
◊ FBI Action is a search

▪ Controlled Deliveries; III v. Andreas (1983)

□ Gov has rt to open a container (customs)
□ Gov takes control and monitors delivery
□ No reason. expectation of privacy at time of delivery

○ Exposure to Public View- the Public Observation Doctrine

i. Tracking Pub Movements: Radio Beepers---> US v. Knotts (1983)
□ Facts (Pre Jones)
 Tracking chloroform container w/ beeper inside
consent of selling co. obtained before D picked it up

Class Notes Page 8

  consent of selling co. obtained before D picked it up
 Knotts lacked standing to complain abt placement of the beeper
 No search
 Visual surveillance wd have sufficed to reveal all facts
 Knotts engaged in evasive driving, police lost him, and a helicopter picked up a stationary signal
an hr later
 Carpenter (cell site location info) distinguished Knotts as a rudimentary tracking device

□ Trespass to chattel
 Ct upholds conviction for Knotts. Says it's still okay in Jones, they can do this w/o a warrant.

 But in Carro, is diff

◊ Getting info from a place where you usually neeed a warrant for
◊ So can use beeper to follow a car/item
◊ But if being told info of moving of something inside a place, is a problem (b/c of Carro)

□ Jones- trespass to chattel: meaningful interference w/ possessory interest

 Carro and Knotts are clear examples
◊ Can't open up a box and mess w/ it

ii. Tracking Public Movements: Cell Site Location Info

□ Carpenter v. US (2018) (so after Jones)
 Facts
◊ 2011- police arrested 4 men for robbing radio shack and t mobile stores in Detroit
◊ One confessed and explained a roving cast of getaway drivers and lookouts had robbed 9
stores in Michigan and Ohio
◊ The suspect ID'd 15 accomplices and gave FBI some cell phone numbers
◊ FBI reviewed suspect's call records to find add.al numbers
◊ Prosecutors obtained 2 ct orders for cell site location info for Carpenter

 Ct: you're following somebody. Know their movements, know their location.
◊ So you need something more, like a ct order or warrant.
◊ One case that veers off of bank acct cases/etc
◊ So if police are pinging your location thru your phone, then need a ct order/search warrant
w/ probable cause from those cell phone towers

iii. Aerial Surveillance- Airplanes and Helicopters

1) Air Surveillance of Back yard- No expectation of privacy: Cali v. Ciraolo (1986)
a) Fenced backyard
b) 1000 feet above
c) Powell (Author of Oliver writes Dissent)
 Can fly over, like open fields.

2) Aerial Overflights of industrial Plant (camera enhancing): Dow Chemical Co. v. US (1986)
a) No expectation of privacy
b) Powell again writes diseent

3) Helicopters: Florida v. Riley (1989)

a) No expectation of privacy as to hovering helicopter 400 ft above prop
b) Ct says:
i. Flying/ceiling limitations--> for safety reasons, not privacy reasons
c) Page 106:
 O'Connor: what wd someone like Riley reas.ly expect you or members of the public to
do
– Like don't expect mem.s of pub to fly over house in helicopter
 Test: Legal possibility test= is it legally possible for public to be in a place where
they can hear, see, or taste the thing

Class Notes Page 9

 they can hear, see, or taste the thing
Class 5 – I.e. is it civilly actionable? or is it a violation of crim law? if no, it's legally
pg. 107-129
possible.
– Not from a D's perspective. The test instead, is it legally possible for a mem of
the public
 AKA so here, renting a helicopter over somebody's house, is legally
possible (even if not reason.)

i. Remember, best way to get handle on search and seizure, if police in a lawful pub place,
then no search
ii. If it's reasonable for a person to assume that a member of the pub wd rent a helicopter to
fly over your house, there shd be no rt of privacy.

iv. Trash
□ Cali v. Greenwood (1988)
 Police ask trash collector to pick up plastic trash bags that Greenwood left on the curb in front of
his house
 Police get the bags and search them to discover narcotics evid
 Ct relies on Smith (pen register) to hold: There was no search
◊ Respondents exposed their garbage to the pub sufficiently to defeat their claim to 4th A
protection

v. Manipulation of Bags in Public Transit

□ Bond v. US (2000)
 Squeezing Luggage --> Expectation of Privacy
 Facts
◊ Border patrol agent boarded bus to check immigration status of passengers
◊ Squeezed luggage in overhead storage space
◊ Felt a brick-like object
◊ Bond admitted luggage was his and gave permission to open
◊ Lower cts found no search
 SC reverses, and finds that Bond had reasonable expectation of privacy
◊ Says that it was a search. TACTILE TOUCHING (with your fingers/hands, squeezing,
kneading) constitutes as a search. Need to have probable cause to do that

○ Investigating Methods that can only reveal illegal activity

i. Canine Sniffs
□ US v. Place (1983)
 Canine sniff
◊ Well trained narcotics dog
◊ if dog has a rt to be where he is, then no search by a sniff.
 It will give you full PC, you can get a search warrant based on a trained canine sniff
 O'Connor: sniff only reveals whether or not narcotics
◊ Sniff is sui generis
◊ not a search

ii. Chemical Testing for Drugs

1) Illinois v. Caballes (2005)
a) Facts:
◊ D stopped for speeding. One officer processes the ticket and another uses drug sniffing dog
w/o suspicion
b) Held: NO SEARCH (Justice Stevens)
i. Relies on place--> Use of Drug Dog is Sui Generis
 Dog only alerts on drugs
ii. Don't need warrant for vehicle b/c they had PC and the car was in a public place
 Vehicle, public place, and (?)
◊ Souter dissents, ?s premise re drug dogs

Class Notes Page 10

 ◊ Souter dissents, ?s premise re drug dogs
◊ Ginsburg & Souter- sniff not related to stop
 Bomb sniffing dog mt be justified

2) Place also relied on in US v. Jacobsen (1984) --> chemical field testing of powder is not a search

○ Methods that can reveal both Innocent and Illegal Activity

i. Kyllo v. US (2001)
1) Facts:
 Agent suspects weed being grown in a home
 Uses thermal imaging to get heat images
 Lower cts found no search
2) Holding: SC reverses (Scalia)
 Using technology (A) not in general use (B) to gather info re interior of home (C) that would have
req.d intrusion at CL
i. This is a home, not a bus/etc
 This device takes down the wall of the home, to show the interior of the house, aka
searching it
ii. The Gov uses a device that's not in gen public use, to explore details of the home that wd
previously have been unknowable w/o physical intrusion, the surveillance is a "search" and
is presumptively unreas. w/o a warrant

○ Miscellaneous Situations
i. Foreign Officials --> Not covered by 4th A
□ Exceptions where conduct shocks conscience or US agents have sub.al participation

ii. Jails, Prisons--> No privacy Rights

□ Florence v. Bd of Chosen Freeholders (2012) : okay to strip search any jail inmate who'll be released into
the gen population
 5-4 (kennedy for majority; breyer for dissent); Alito, concurring, suggests strip search of arrestee
whose detention has not been reviewed by a magistrate and who cd held in avail. facilities in
avail. facilities apart from gen. population may be unreasonable.

iii. Public Schools and Pub EEs

□ Purely public schools aren't protected by 4th A, but priv schools are
□ New Jersey v. TLO (1985): schools not jails
 Reduced expectation, however
 Std for under 12th grade-- reasonable suspicion
□ O'Connor v. Ortega (1987): PUBLIC workplace is not a priv workplace
 Gov EEs may have expectation of privacy
 Plurality upholds search on reason. suspicion
□ O'Connor is discussed in City of Ontario v. Quon (2010), when we get to special needs searches

III. "Seizure" (pg 118)

○ Seizures and Searches Implicate Diff Ints

Seizure Triangle: 4th A

Note: Three types of police/citizen encounter
But only two seizures under the 4th Amendment
Diff.s b/w ability to move.

Battle of the Suppression Hearing:

Lvl of Seizure:
Full Custodial Prosecutor
Routine
ARREST will try to drag traffic stop-
(Full PC Req.d) it down the pyramid, getting pulled
over-->
b/c then evid will come in

Class Notes Page 11

 Full Custodial Prosecutor
Routine
ARREST will try to drag traffic stop-
(Full PC Req.d) it down the pyramid, getting pulled
over-->
b/c then evid will come in IS NOT
Lvl of Seizure: a full custodial arrest,
Defense atty will drag it up, it's a terry stop.
Terry Stop, Stop and Frisk,
Investigative Detention, b/c the std.s go up in the Not able to auto.ly
Pat Down (RAS Req.d) pyramid search the car.

No seizure, No custody • Looking to find two things:

Consensual Encounter ○
(No cause necessary) ○ Justification?

○ Seizure Summary
i. Ask, what is being seized? (there's two things)
□ Property (chattels) or persons
a) Property (chattels): Is there a meaningful interference w/ possessory ints?
◊ Look to Common Law of prop and tort
 Jones, Carro, and Knotts

b) Persons: two ways to seize a person(Hodari D.)- coercion always necessary.

– See Drayton; Mendenhall; Hodari D.; Royer; Delgado; and Torres
– An element of coercion is always necessary, to both types
– Both manners can occur at the same time
 One can involve touching, the other doesn't
i. Show of Force
 Must submit (Hodari D.)

OR

ii. Physical Accosting

 "Touching" --> Physical force intentionally applied (Torres)
– Must be some kind of touching
(read pg 120-140)

a. Seizures of Persons
i. Torres v. Madrid (pg 120) (2021)
□ SIGNIFICANT CASE
 Seizure occurs when an officer shoots someone who temporarily eludes capture after the
shooting
 The application of physical force to the body of a person w/ intent to restrain is a seizure even if
the force doesn't subdue the person
 Facts
◊ Officers w/ arrest warrant try to speak w/ Torres but she tries to drive off when she sees
they have guns
 There was a COMMAND--> show of authority (most Terry stops start this way) (a
command is a seizure)
◊ They fire at her, striking her twice in the back, and she ends up in a parking lot
 Problem: not a crim case in the SC (this is a law suit). Ct has to decide when const.al rts violated

□ 14th A:
 If I lay hands on you, reasonable suspicion is needed
◊ Accidental force--> Won't qualify
 Touching + Intent --> can be enough
– Bullets count as touching
– Amt of force applied is relevant to determining intent

Class Notes Page 12

 – Amt of force applied is relevant to determining intent
– See pg.s 122-123 in DETAIL
 DON'T focus on perceptions of the person/suspect, but on the objective
conduct of the officer to determine if a seizure has taken pl

◊ If they lay hands on, and you pull away, it's some kind of seizure
 It counts as physical accosting (aka satisfies second prong)

 If only using a show of authority, and you get away, it's NOT a seizure b/c no form of touching
involved

1) Cali v. Hodari D. (fin)

ii. Seizures by Displays of Authority: The Mendenhall "Free to Leave" Test

□ US v. Mendenhall (1980) (see pg. 127)
a) Facts
◊ Airport stop- Stewart (joined by Rehnquist)
 2 DEA agents approached her in a plane station and asked to see her ID and ticket,
which had diff names
 They returned the ticket & ID and asked for her to accompany them for further ?ing

◊ Ct: Found that a reasonable person in the same situation wd have felt free to leave
 PUBLIC PLACE, plain clothes (not uniforms), no weapons, requesting and not
demanding her paperwork
 THEREFORE, not seized. Consensual encounter

b) Mendenhall Test: "A person is seized only if, in view of all of the circum.s, a reason. person wd
have believed that he was not free to leave"
i. Objective Test that doesn't depend on subjective belief of suspect/officer

ii. Factors:
1) Officers telling the individual they're free to leave--they don't have to do that for a
person to feel free to leave
2) Presence of several officers--more likely that a person wd not feel free to leave
3) The officer is in uniform/displays badge-- not more likely that a person wd not feel
free to leave
4) Officer displays a weapon-- more likely a person wd not feel free to leave
5) Officer uses authoritative tone of voice-- more likely a person wd not feel free to
leave

c) Seizure occurs when reason. person wd believe (s)he not free to leave
◊ Problem w/ this test:
 Reasonable ppl often feel constrained to stay
 Focus is on Reasonable Ppl's Reactions, RATHER than on Police Behavior

i. Asking incriminating ?s isn't enough to be a seizure (b/c reporters/citizens do this all the
time), has to be an actual STOP

iii. Applying the "Free to Leave" Test: Florida v. Royer

1) Florida v. Royer
a) (fin)
b) PAGE 129
i. Officers don't violate 4th A by:
1) Merely approaching a person on the street or in public pl
2) Asking if willing to answer some ?s
3) By putting ?s to him if person is willing to listen
4) Or by offering in evid in a crim prosecution his voluntary answers to such ?s
 NOR wd the fact that the officer IDs himself, w/o more, convert the encounter into a

Class Notes Page 13

  NOR wd the fact that the officer IDs himself, w/o more, convert the encounter into a
seizure req.ing some lvl of objective justification
ii. The person approached does NOT need to answer any ? asked; he can decline to listen and
go on his way
 HE MAY NOT be detained, even momentarily w/o reasonable, objective (full PC;
broad enough) grounds for doing so; and
 His refusal to listen/answer doesn't furnish those grounds
iii. If there's no detention (no seizure w/in the meaning of the 4th A) then NO const.al rts
infringed

iv. Factors Relevant to Finding a Seizure under Mendenhall and Royer

□ pg 130

v. Factory Sweeps: INS v. Delgado (1984)

1) Facts
 Armed agents w/ badges, walkie-talkies station themselves at factory exists while others ?d
workers asking to see Green Cards

2) Issue: Did workers feel free to leave?

 Workers wd not feel restrained

3) Holding: No seizure.
□ Pg. 131

vi. Bus Sweeps:

1) Florida v. Bostick (professor said don't worry abt this case)

2) US v. Drayton (2002) (pg.

a) "Free to Leave Test"-- (HOGWASH description by Professor)
IT"S BS

b) Rule/Magic Language:
◊ Officers don't violate 4th A's prohibition of unreas. seizures merely by approaching
individuals on the street or in other pub places and putting ?s to them if they're willing to
listen.
◊ Even when officers have no basis for suspecting a particular individual, they may pose ?s,
ask for ID, and request consent to search luggage-- provided they don't induce cooperation
by coercive means.
 If a reason. person wd feel free to terminate the encounter, then he/she hasn't been
seized.

◊ REAL TEST OF SEIZURE: PROVIDED THEY DO NOT INDUCE COOPERATION BY COERCIVE

MEANS

vii. Is the "Freedom to Walk Away" Test Reasonable?

viii. State of Mind req.d for a Stop:

1) Brower v. County of Inyo
2) Brendlin v. California (2007)
a) Facts:
i. When officers stop a car, they seize all ppl in the car
ii. Ppl not free to go
 ANYBODY in the car is seized, not just the driver, etc.
Read thru pg. 163 iii. Officers intend to stop the car, not simply the car. (like when they put on their lights--it's a
Don't read Dissent
Focus on Johnson and
terry stop or arrest)
iv. Ct will not look at the subjective intent of the officers

Class Notes Page 14

  ANYBODY in the car is seized, not just the driver, etc.
Read thru pg. 163 iii. Officers intend to stop the car, not simply the car. (like when they put on their lights--it's a
Don't read Dissent
Focus on Johnson and
terry stop or arrest)
define probable cause iv. Ct will not look at the subjective intent of the officers
for next class
 Note: title owner or driver can contest the search of a vehicle (NOT PASSENGERS)

ix. When Does Submission Occur?

b. Seizures of Houses
i. (pg 140) Seguara v. US (1984)
□ Facts: officers arrest Segura in lobby of apartment building, take him to his apartment where the find
Colon, enter the apartment and arrest her, do a protective search and observe drug activity evid,
incarcerate the two, and two officers wait in apartment while search warrant is obtained (for 19 hrs)
□ Held: No reason to decide whether the officers acted lgl.ly, since the search warrant was based on
independent evid
 Seizure of premises while getting a warrant (fin)

ii. Illinois v. McArthur (2001)

□ Facts:
 Police accompany wife to trailer to remove G.s
 W tells police drugs are in trailer. Police ask H for search permission
 H denies permission, comes on porch.
 Police detain him while they get a warrant. Let him enter trailer 2/3 times w/ officer
◊ Less (fin)

□ It's possible to have full PC, and SECURING RESIDENCE (full egress/ingress) as long as w/ getting
warrant --> it's done promptly w/ dispatch, and reason.ly
 Can seizure w/o a warrant, FULL PC, to do full egress/ingress

c. Seizures of Papers and Effects

i. Recall that in Jacobson the Ct found no 4th A violation in the seizure of the Fed Ex package and testing it for
drugs
ii. Gov.al Action may not be "seizures" if they're not adverse to a citizen's possessory int.s
iii. US v. LaFrance (1989)
□ Fed Ex noon package delivery
 Sniff from 1:15-2:15
 Not unreasonable b/c not really a delay

○ Summary: What is a "seizure"? (in reference to the triangle, are

you over that first line?
STEP ONE: First, is there a "'seizure"? Torres.
i. Touching/physical accosting, AND
ii. Intent to Restrain
 Means intent to "seize" in 4th A -- Terry stop or full arrest

STEP TWO: Second, how is seizure accomplished?

i. Show of authority-- Hodari D., Mendenhall, Royer, and Delgado.
 Must comply or submit.
(commanding tones/etc)
ii. Physical touching/accosting-- Hodari D., and Torres. See also, Mendenhall and Royer.

STEP THREE: Test to be applied to #2 above:

◊ Wd a reasonable person feel free to leave?
 NOT RLLY THE TEST!!
◊ This means by some "coercion" by law enforcement.
 Drayton. See also, Mendenhall, Royer, and Delgado.

Class Notes Page 15

  Drayton. See also, Mendenhall, Royer, and Delgado.
 Focus on law enforcement officer, not the suspect.

IV. The Warrant Requirement ---> The Tension B/w the Reasonableness and the Warrant Clauses
○ "Warrant"= court order

a. The Important of the Warrant Clause Gen.ly

i. In the 4th Amendment:
□ "and no Warrants " (fin)

ii. Question #5: Justification

□ Classic formulation of the justification question:
a) Fundamental Question:
i. Do you need a warrant or not?
ii. There's a class of searches and seizures for which you presumptively need a warrant and a
class of searches and seizures for which you presumptively do not.
◊ So figure out which one it is.

b) Warrant Req.d
i. All requirements needed for warrant, see next slide…

c) Warrant NOT Req.d, so…

i. Do you need PC or "reasonable suspicion" (RS) (fin)

□ A Second Way to View the Justification ?

 (we've already written this at the beginning of the notes)
◊ Const. protects "persons, houses, papers, and effects": What is being searched?

iii. Warrant: PROCESS AND PAPER

1) Writing: (3 kinds of paper)
a) Application (something police/prosecutor do, a motion to do something.)
i. Affidavit (heart and soul of warrant process; #d paragraphs telling a story)
 Explaining why to the ct you need to do something
A warrant is two things: ii. Attachments
A paper b) Warrant (itself)
and then a process i. Attachments
 NOT THE AFFIDAVIT
ii. Nighttime or daytime search
 Presume it's safer to do these searches when ppl are awake/alert (to prevent being
shot)
iii. Knock and Announce
◊ Avoid Nighttime/daytime search req. or Knock and Announce thru putting it in the affidavit
that you have full PC, that the Knock and Announce (or daytime search) is not proper here
c) Return
◊ A receipt that goes to the judge, to tell the judge you've executed the ct order, and here's a
list of things we found
2) PC
3) Particularity: place to be searched and things to be seized
4) Neutral and Detached Magistrate
 Need not be a lawyer, only capable of finding PC
5) Oath or Affirmation
6) Execution
7) Return

b. The Reason for the Warrant Req.

i. Johnson v. US (1848)- Importance of Magistrate

Class Notes Page 16

 i. Johnson v. US (1848)- Importance of Magistrate
□ Warrantless- per se unreasonable?
□ Facts
 Informant tells Lt. Belland that opium is being smoked in Europe hotel
 Informant sent back to hotel, smells opium
 Belland and 4 feds go to hotel, smell opium. Officers knock, woman opens, officers enter.
□ Ct reasons that no probable cause existed to arrest woman until officers saw she was alone in
apartment
 Today, this case is prob.ly decided diff.ly
ii. Page 145, third (ENTIRE) paragraph under the asterisks-- THE RULE!!
□ the point of the 4th A, is to protect in req.ing that those inferences be drawn by a neutral and detached
Read to 186 magistrate instead of being judged by the officer engaged in the often competitive enterprise of
for monday ferreting out crime
□ Regardless of what PC you've got, you MUST get your paperwork (aka the entire point of this case)

c. The Function of the Warrant Requirement

i. The Warrant Requirement in Reality

Class Notes Page 17