Criminal Procedure Outline

Terms: Investigate (Cops & Robbers!): 1. Investigation 2. Search and seizure 3. Interrogation 4. Identification procedures 5. Arrest Adjudicate (Bail & Jail): 1. Complaint 2. (Probable cause) hearing 3. First appearance 4. Preliminary hearing/grand juries 5. Arraignment 6. Pretrial Motions 7. Trial Sentencing: 1. Sentencing 2. Appeal 3. Habeas Recurring Themes: Philosophical: asking why and how we balance questions to figure out what type of system we should have  Deontological thinkers- right or wrong (ex-post  Consequentialist thinkers- case-to-case (ex-ante) Views Ex-Post

The ex post perspective is backward looking. From the ex post point of view, we ask questions like: Who acted badly and who acted well? Whose rights were violated? Roughly speaking, we associated the ex post perspective with fairness and rights. The ex post perspective in legal theory is also loosely connected with deontological approaches to moral theory. In general jurisprudence, we might associate the ex post perspective with legal formalism.


The ex ante perspective is forward looking. From the ex ante point of view, we ask questions like: What affect will this rule have on the future? Will decision of a case in this way produce good or bad consequences? Again, roughly speaking we associate the ex ante perspective with policy and welfare. The ex ante perspective in legal theory is loosely connected with consequentialist (or utilitarian or welfarist) approaches to moral theory. In general jurisprudence, we might associate the ex ante perspective with legal instrumentalism (or legal realism).

Literary: interpreting the Constitution  Originalism: intent of the author versus text  Living Constitution: Adapt it for today (evolving), terms left vague to be interpreted Competing Values  Privacy v. security  Individuality v. crime control  State v. federal

4th Amendment
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“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.” Two general parts:  Reasonableness Clause: Prohibits o Who is covered: “the people” o What is covered: “persons, houses, papers, and effects” o The nature of the protection: “to be secure…against unreasonable searches and seizures.”  Warrants Clause: o What is required: “probable cause, supported by oath or affirmation” o Form of the warrant itself: “particularly describing the place to be searched, and the persons or things to be seized.”  Does the comma mean that the second clause informs the first?  Framer’s reason for the text: to curb the exercise of discretionary authority by officers.  What values inspired the Framers in drafting the 4th? o “Sacred and incommunicable” right to private property o Legitimate expectations of privacy o Physical entry of the home is the “chief evil” Two Theories of the 4A  Warrant preference: Warrant clause modifies reasonableness clause. Searches generally unreasonable unless authorized by a warrant (most-rights protective theory)  Middle theory: all searches and seizures require probable cause but necessarily a warrant  Reasonableness theory: Warrant clause and reasonableness clause independent. All searches and seizures just have to be reasonable, as defined on ad hoc basis (least rights-protective)
√ Checklist √ 1) Was this a search/seizure? (if no, inquiry ends- no constitutional question) 2) If yes, was is constitutional? (if yes, inquiry ends) 3) If no, what is the remedy? a. Exclusion of evidence b. 1983 claims c. 4) Does D have standing to raise a 4th challenge to the specific item of evidence in question? a. If no  evidence is admissible b. If yes  analysis continues 5) Is D among “the people” protected by 4th? 6) Did the police activity implicate a “person, house, paper, or effect”? 7) Did the police activity constitute a “search” and/or “seizure”? 8) Was the search and/or seizure reasonable or unreasonable? a. Did the police have adequate grounds to conduct the search and/or seizure? i. Probable cause ii. Reasonable suspicion b. Even if the police acted on the basis of probable cause, did the police obtain a search warrant or arrest warrant? i. If no  Did the police have a valid reason for not obtaining the warrant? ii. If yes  Was the warrant obtained in the proper manner? Was the party issuing the warrant a neutral and detached magistrate? Was the warrant in proper form? Did the Police execute the warrant properly?

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Chapter 1: Persons, houses, papers, and effects

 Two interpretations: (2) A governmental search that does not impinge upon a “person, house, paper, or effect” is not a “search” or “seizure” w/in 4th. (3) 4th only prohibits unreasonable searches of persons, houses, papers, and effects.  Persons: o Body o Exterior of D’s body (clothing) o Interior of D’s body (blood tested for alcohol) o Conversations (Olmsted)  Houses: o All structures that people commonly use as a residence, whether temporary or long-term. o Includes building attached to the residence and curtilage o Does not apply to open fields (undeveloped areas outside the curtilage) o Offices, stores and other commercial buildings, however there is less expectation of privacy.  Paper and Effects o Letters, diaries, business records o Automobiles, luggage, other containers o Less inclusive than “property”

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Olmstead v. United States [1928] Wire Tapping = Search (4A only protects tangible property) [Opinion: Taft]

Facts: D used telephones in a home office connected to the homes of associates to coordinate illegal liquor sales. Fed. prohibition officers intercepted messages on the telephones by inserting wires along the telephone wires (w/o trespassing upon D’s property). Officers listened to conversations to obtain evidence of criminal acts. Holding: Wire tapping does not amount to a search/ seizure w/in the meaning of 4th bc the evidence was secured by the use of hearing only, NOT entry of the houses or offices of Ds.  One who installs a telephone intends to project his voice to those outside.  Wires/messages are not w/in protection of 4th  Must be an official search and seizure of his person/papers/tangible material effects or an actual physical invasion of his house or curtilage to be a seizure.  Comparison to evidence obtained through deception (unethically secured).  Policy: if evidence was forbidden  society would suffer and criminals would have greater immunity.  Exclusion of evidence should be confined to cases where rights under the Constitution would be violated by admitting it.

[Dissenting: Brandeis][PRIVACY]
  Gov.’s wire tapping constituted an unreasonable search/seizure in violation of 4th o Use as evidence of the conversations overheard compelled the Ds to be witnesses against themselves  violation of 5th Subtler and more far-reaching means of invading privacy have become available to the gov.

“in the application of a Constitution, our contemplation cannot be only of what has been, but what may be.” Pg. 10.- alluding to developments in technology
Founders believed in the right to be let alone

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“The greatest dangers to liberty lurk in insidious encroachment by men of zeal, wellmeaning but without understanding.” Pg. 11. “every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the fourth amendment” “The door of a court is not barred because the plaintiff has committed a crime.” Pg. 12
In WA wire tapping is a crime  fed. ct. should not permit to continue (“unclean hands”) If gov. becomes lawbreaker  breeds contempt for law  invites every man to become a law unto himself  invites lawlessness Amicus curiae brief: when lines of two parties are connected at the central office, they were intended for exclusive use and for exclusive use of the parties. 3rd person violates property rights of bother persons AND the telephone company. Franks: Brandeis is the champion of privacy and thinks the gov. is coming up w/ various ways to invade privacy. “The most important right is the right to be left alone.”

[Dissenting: Holmes]
 Two objects of desire: o Criminals should be detected o The government should not foster and pay for other crimes when they are the means by which the evidence is to be obtained Less evil that some criminals escape than that the gov. should play an ignoble part Emphasis: evidence obtained by fed. agents in violation of state law should be inadmissible

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[Dissenting: Butler]
  Contracts btw telephone companies and users contemplate the private use of facilities Communications belong to the parties btw whom they pass (property)

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” Pg. The expectation be one that society is prepared to recognize as “reasonable” (objective) Booth was a temporarily private place whose momentary occupants’ expectations of freedom from intrusion are recognized as reasonable. Marks the shift from property to privacy Cautious. not places. pays the toll  entitled to assume the words he utters will not be broadcast to the world. Tapping telephone wires is modern day eavesdropping.  4th does not necessarily turn on “constitutionally protected area” and there is no general constitutional “right to privacy.” so they are unprotected. 18 K sought to exclude the uninvited ear—shut the door behind him. Effectively overrules Olmstead Departs from Olmstead: 4th governs the seizure of tangible items AND the recording of oral statements overheard w/o any technical trespass under local property law. Katz v.” as neither can trespass. to bring it into harmonies w/ the times o Court is rewriting 4th ***[Concurring: Harlan] Reasonableness Expectation of Privacy Test [Dissenting: Black]   Santiago 5 . and the wiretaps used to listen (which can trespass) did not bc they were installed on telephone lines outside O’s property.4A is not a general constitutional right of pivacy Franks: moved away from only caring about trespass. Twofold requirement: Does it violate a Constitutional right? 1. United States [1967] Wire Tapping= Search (people not places) [Opinion: Stewart] Facts: FBI agents attached an electronic listening and recording device to the outside of the public telephone booth from which K placed his calls. eyes and ears cannot “search” or “seize. but only from physical intrusions or trespasses.*Conversations are not “persons. even in his own home or office. house. is not a subject of 4th Amend. Person have exhibited an actual expectation to privacy (subjective) 2. Textual o Language: conversation is not tangible and cannot be searched/seized o Framers were aware of eavesdropping and did not use language to outlaw or restrict use of such evidence. the houses and offices from which the conversations arose are protected by 4th. papers. or effects.         o “What a person knowingly exposes to the public. Does not believe it is proper for the court to rewrite the Amend.”  4th protects people. protection. Holding: The Government’s activities in electronically listening to and recording K’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a “search/seizure” w/in the meaning of 4th.

 Pub. except the area immediately surrounding the home.’s intrusion on an open field is not a “search” bc it is a trespass in common law. conduct agricultural businesses. Officers drove past O’s locked gate. joined by Brennan and Stevens]        Bill of rights was designed not to be precise  Framers sought to identify fundamental human liberties that should be protected and not undermined by the changing activities of gov.  Correct inquiry: whether the government’s intrusion infringes upon the personal and societal values protected by 4th. Claim to privacy is strengthened by the fact that the claimant manifested to others his desire that they keep their distance.Oliver v. office.“no trespassing sign”  Disputes the original idea that 4A protects property  Curtilage: warrants 4th protection bc it extends the intimate activity associated w/ the sanctity of a man’s home. followed a footpath. and to stay outside the zone. Landowner’s interest in privacy of his woods/fields is one society is prepared to recognize as reasonable o Under local law intrusion is criminal trespass o Law recognizes the right to keep strangers off their land Uses of land is relevant to privacy interest: landowners take solitary walks.  Not clear whether court is saying there was o search or whether search was not unreasonable  “Effects” does not include open fields w/in the meaning of 4th  Factors to assess the degree to which a search infringes upon individual privacy: o Intention of the Framers of 4th o Uses which the individual has put a location  No societal interest in protecting the privacy of open fields activities (cultivation of crops) o Societal understanding that certain areas deserve the most scrupulous protection from government invasion. o Announced prior to Katz. or commercial structure would not be. meet lovers. and found a field of marijuana a mile from the home. [Dissenting: Marshall.  Gov. Franks: freedom of movement—to be on your own and not worry about intrusion  Open fields doctrine: o Entry and exploration of “open fields” does not amount to a search w/in the meaning of the 4th. found two marijuana patches. officials.  Land is open to public in a way the home. and police may lawfully survey the land from the air  Trespassed on land.  Common law: open fields do not have an expectation of privacy  Ad hoc approach would make it difficult for the policeman to discern the scope of his authority and create danger that constitutional rights would be arbitrarily and inequitably enforced. In another case police followed an anonymous tip to T’s house.  Indiv. obtained a search warrant. walked around the gate. reaffirmed after Katz and Oliver Santiago 6 . gather w/ worshippers. United States [1984] “Open Fields” [Opinion: Powell] Facts: Two police agents went to O’s farm to investigate reports that marijuana was being raised. Holding: The government’s intrusion upon open fields is not an “unreasonable search” proscribed by the text of 4th. NOT whether the individual chooses to conceal “private” activity. Rule: private land marked in a fashion sufficient to render entry thereon a criminal trespass under the law of the State in which the land lies is protected by 4th proscription of unreasonable searches/seizures. and seized the marijuana. “No Trespassing” sign. Majorities rule will cause police officers to make on-the-spot judgments as to how far curtilage extends. may not legitimately demand privacy for activities conducted out of doors in fields. and used as a refuge for wildlife.

In contrast.o Oliver: people do not have a legitimate expectation of privacy in activities occurring in open fields. Santiago 7 . and (3) an open field.  An expectation of privacy in an open field is never legitimate.” like a house.  Open fields do not constitute a “search”  Framers believe certain “enclaves. should be free from governmental interference. must distinguish btw: (1) a house. even if the activity occurring there could not be observed from the ground except by trespassing in violation of civil or criminal law. o For 4th analysis. (2) curtilage to a house. open fields do not provide the setting for those intimate activities 4th is intended to shelter from government interference or surveillance.

may be constitutionally protected.” o Degree of intrusion  Helicopter constitutes search depending on noise and dust disrupting legitimate activities. his property. personal liberty. and private property. even in an area accessible to the public. not places o Extent to which a person has taken measures to keep information. o “Reasonable expectation of privacy” standard  Individual must exhibit an actual (subjective) expectation to privacy  Must prove that the expectations he exhibited is one that society is prepared to recognize as reasonable. The houses and offices are protected only by physical intrusions or trespasses. or an activity private  No expectation for what an individual knowingly exposes to the public or is in open view  One who voluntarily conveys info or property to another person “assumes the risk. Post-Katz Analysis o Buried the trespass doctrine o What a person seeks to preserve as private. legitimate. K was entitled to assume his words would not be broadcast to the world.    Santiago 8 .Chapter 2: Searches   If the police activity does not constitute a search  4th does not apply! Pre-Katz Analysis o Boyd: the invasion of a man’s indefeasible right of personal security. therefore unprotected. o By shutting the door on the booth and paying the toll. or justifiable (one that an ordinary person might possess)  If either prong is lacking  not a search Warren court’s “criminal procedure revolution” Objective prong: o Site or nature of the property inspected  4th protects people. o Physical intrusion—a trespass—into a constitutionally protected area o Olmsted: phone conversations are not protected as effects because they are intangible.

a person knowingly exposes his thoughts to another. 5th) is not free if there is surveillance Magnitude of police utilization of this technique: Orwellian society Difference btw relaying information and conspiring to betray and transmit what is said o Distinction btw 3rd party monitoring and other undercover techniques o Two assumptions:  There is no greater invasion of privacy in 3rd party situation  Uncontrolled consensual surveillance in an electronic age is a tolerable technique of law enforcement. White [1971] Informant w/ wiretap=search [Opinion: White] Facts: Gov. 48.  4th does not provide protection to a wrongdoer’s misplaced belief that a person to whom he voluntarily confides in will not reveal it.” Pg.     [Dissenting: Harlan]    *Assumption-of-risk analysis of Hoffa—a person does not have a “justifiable and constitutionally protected expectation that a person w/ whom he is conversing will not then or later reveal the conversation to the police (Using Katz: there is no 4th protection bc by speaking. o Fear to make basic social regards Warrants should be necessary. Conversations were overheard by an agent in a closet in J’s kitchen and by a 2nd agent outside the house w/ radio receiver. J.) *No difference btw a pure false friend case (X converses w/ D and then testifies recollection at trial of the conversation) and the situation in which X uses more reliable technique of recording the conversation (“wired” false friend) Santiago 9 . therefore. also 4th.  No difference btw simultaneous recording w/ electronic equipment on the person or transmitting conversations elsewhere to other agents monitoring the transmitting 4A protection for a “wrongdoers misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. and J’s car. no excuse for not seeking a warrant o 4th “was designed not to protect criminals but to protect everyone’s privacy. Free discourse (1st value. wore a radio transmitter concealed on his person and transmitted to agents during conversations w/ W on 4 occasions in J’s home. a restaurant.“false friend” doctrine.”  Police agent may conceal his connections and write down his conversations with a D for official use o Electronic recording will produce a more reliable rendition of what D said than officer’s memory o Court will not hold that a D who has no constitutional right to exclude informer’s unaided testimony has right to exclude a more accurate version of the events in question.  One contemplating illegal activities should realize the risk that companions report to police. informant. and.United States v. o No warrant to search/seize is required  Relies on Hoffa (1966). given the values and goals of our political system Assess the nature of the practice and its likely impact on the individual’s sense of security against the utility of the conduct as a law enforcement technique o Impacts of 3rd party bugging: undermines confidence and security Monitoring undermines confidence and security w/ one another that is characteristic of individual relationships btw citizens in a free society. Holding: Recorded conversations w/ an informer are not protected by 4th. [Dissenting: Douglas]  Eavesdropping is not the same as electronic surveillance o Bill of Rights should not be read to cover only technology of the 18th century o Strict Construction: text should be read narrowly—Founders wanted to protect from an allpowerful government Uncontrolled surveillance will lead to a police state o Pre-arranged episode of surveillance. the public.

sheriff stopped men and found distillery apparatus and raw material. Holding: Warrantless search/seizure of garbage bags left at the curb outside a house does not violate 4th bc there is no subjective expectation of privacy in the garbage that society accepts as objectively reasonable (Harlan 2part test from Katz). [Dissenting: Marshall] Bank Secrecy Act requires maintenance of bank customers’ records o Marshall thinks it is a seizure and unconstitutional bc there is no warrant/probable cause  W/o a remedy until it is too late M does not have standing to contest Gov. then it is not secret. Miller [1976] Bank Records Facts: In response to informant’s tip. After posted bail. found items indicative of narcotics use.  Subpoena to a 3rd party to obtain the records of that party does not violate rights of a D.  Individual assumes the risk [Dissenting: Brennan]      Accused had a reasonable expectation of privacy in his bank statements and records.  Documents are not “private papers. the possibility is inherent in the conditions of human society that the listener is not whom he claims to be. No search occurs. if the bank hands over the customer’s financial records to the government. “False Friends”: o A police informant or covert police agent insinuates himself into D’s confidence to get incriminating evidence. Santiago 10 . officers conducted another trash search a month later. Officer searched through garbage. Bank made records available and did not tell M. o Pure version: person gathers info and reports to law enforcement o Wired false friend: friend has a hidden transmitter that permits the police to monitor the conversation. Bureau presented grand jury subpoena to M’s bank records. and used items to get a search warrant for G’s home. Additionally. Holding: No 4th A interest in bank records bc 4th does not prohibit use of information revealed to 3rd parties who subsequently reveal the info to government authorities. therefore. o Not considered a search because of assumption of risk o When a person voluntarily speaks to another. Greenwood v. California [1988] Garbage (no reasonable expectation of privacy) Facts: Officer got complaints from a neighbor and other information pertaining to narcotics trafficking at G’s house. Franks: court equates privacy and secrecy . if it is not private. Disclosure of financial affairs is not entirely voluntary bc it would be impossible to participate in economic life of contemporary society w/o a bank account. .” they are the business records of the banks o No legitimate expectation of privacy in the contents of microfilm  Checks are negotiable instruments of commercial transactions  Depositor takes the risk by revealing his information to 3rd party that it will be conveyed to Gov. .’s subpoena to the bank *A bank customer has no legitimate expectation of privacy in financial information that he “voluntarily conveys” to bank employees in the ordinary course of business. United States v. Officer asked trash collector to pick up bags in front of G’s house w/o mixing the contents w/ other houses’ garbage. a warehouse fire uncovered illegal booze distillery. the voluntary relinquishment of such by the bank at the request of the sheriff and prosecutor did not constitute a valid consent by the accused  illegal search/seizure. even if a criminal prosecution is contemplated at that time.

DC allowed one search by the EPA. P.e. but denied the second. Readily accessible to animals. Might have a subjective claim. . G could have compacted trash and brought it to dump. 63 o Trash was put outside to convey to a 3rd party. children. . i. scavengers. o Rs deserve no less protection bc G used bags to discard rather than transport his personal effects o Trash can relate intimate details Reasonableness of G’s expectation: most of society would be incensed to discover a meddler Municipalities reinforce confidence in the integrity of sealed trash containers by only permitting authorized employees of the town to touch o CA Const. children. Katz and aerial surveillance: 4th does not protect information knowingly exposed to the public 2. it would have been protected. One cannot have a reasonable expectation of privacy in information voluntarily turned over to others *Bc private persons might snoop. . Holding: Open areas of an industrial plant complex are not analogous to the “curtilage” of a dwelling. DC has had elaborate security barring ground-level views and investigates any low-flying flights over the facility but does not conceal all equipment from aerial views bc it would be too costly. EPA employed an aerial photographer to take pictures. but are analogous to an open field observable by persons in aircraft lawfully in the public airspace. who could have looked through it Police do not have to avert their eyes from evidence of criminal activity that could have been witnessed by any member of the public.”). o Respondents exposed their garbage to the public --. joined by Marshall] Scrutiny of another’s trash is contrary to commonly accepted notions of civilized behavior If respondents had been carrying the trash. Just bc someone could see certain things doesn’t mean someone should be able to see *Court moves to the objective prong w/o significant discussion of the subjective factor (“respondents did not expect that the contents of their garbage bags would become known to the police or other members of the public. o Relinquishing possession or control over an effect ≠ relinquishing privacy expectation in it (Property rights). Society as a whole possesses no expectation of privacy w/ regard to garbage left for collection at the side of a public street. guarantees a right of privacy in trash Possibility that unwelcome meddlers might open and rummage containers does not negate the expectation of privacy. but fails objective bc of animals. the Santiago 11 . The aggregate of things found in an individuals trash reveal intimate details Franks: NOT a question of what people could do .000-acre facility w/ covered buildings and manufacturing equipment and piping btw buildings exposed to visual observation from the air. o Metaphor: possibility a burglar might come into home does not negate the expectation of privacy G cannot be faulted for leaving trash on curb when a county ordinance commanded him to do so. scavengers. Notice: court does not say “effects” bc Katz got rid of that standard and moved to privacy. and other members of the public. *No reasonable expectation of privacy in garbage  NO SEARCH OCCURS *Court uses two “search” rules: 1. [Dissenting: Brennan. individuals have no constitutionally recognized reasonable expectation of privacy when and if the police—not private persons—in fact snoop. snoops. Dow Chemical [1986] Aerial Surveillance of a Company [Opinion: Burger] Facts: DC has a 2.            Only violates 4th if respondents manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable. . Therefore.

and (3) does not reveal intimate activities traditionally connected w/ the use of a home or curtilage. Wire fence surrounded area w/ “Do Not Enter” sign. o EPA employed a conventional camera used in mapmaking. saw through roof. Anonymous tip of marijuana growth. and Blackmun]        *Not a search bc the EPA was not employing some unique sensory device that could penetrate walls of buildings and record conversations. Marshall. Scalia. shrubs.  Property is w/in curtilage  Court relied Ciraolo where from an aerial 1000ft the court did not find a search. Katz doctrine seems to require a court to consider the nature of the technology used and the nature of the place being observed (commercial property). not some unique sensory device o Photographs do not reveal intimate details to raise constitutional concerns o Enhanced vision does not raise constitutional problems Court is retreating from standard that ensured 4th rights as technology expanded the Gov. Joined by Brennan. Any person with a plane and camera could have seen it State tort law governing unfair competition does not define limits of 4th o Gov. the other sides were obscured from view by tress. Prop. and found marijuana. Subject to regulatory inspections. where as here it was from 400ft  Different result if flying as low as 400ft was illegal  R could not reasonably have expected the contents of greenhouse were immune from examinations from navigable airspace bc sides and roof of greenhouse were left partially open. “Industrial curtilage”: o Gov.  Aerial Surveillance: o Aerial surveillance by the gov. took photos to regulate. but had 10% of panels missing. DC took extensive measures to ensure privacy on ground level DC did everything commercially feasible to protect confidentiality Court repudiates Katz by saying 4th protects DC only from “actual physical entry” o Physical trespass is irrelevant for 4th analysis.   taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by 4th. and Kennedy] Facts: R lived on 5 acres of property w/ greenhouse 10 to 20 ft.  Com. so officers circled twice in a helicopter at 400 ft. obtained a warrant. has greater latitude to inspect commercial property bc the owner enjoys the property differently than the sanctity of an individual’s home. Santiago 12 . of activities w/in the curtilage of a house does not constitute a 4th search if the surveillance: (1) occurs from public navigable airspace (2) is conducted in a physically nonintrusive manner. 2 sides of greenhouse were enclosed. joined by Chief. must evaluate reasonable expectation to privacy DC has a reasonable expectation to privacy bc it has taken every feasible step to protect information o EPA’s conduct intruded on expectation Camera saw more than the eye could see  not equitable to casual observation by passengers Court should not evaluate the method of surveillance [Concurring in part and dissenting in part: Powell. not compete w/ DC o Only photos taken w/ intent to use trade secrets may be proscribed—no prohibition of photos taken by a casual passenger on an airline or a company producing maps for its mapmaking purposes. behind the mobile home.’s capacity to intrude into private areas and activities. Holding: 4th does not require the police traveling in the public airways to obtain a warrant to observe what is visible to the naked eye. Riley [1989] Aerial view by helicopter [Opinion: White. Florida v. Greenhouse was covered by roofing panels. and home.

  o Private/commercial flight by helicopter is routine Does not matter that helicopter was at 400 ft. Riley: officer observed marijuana plants from 400 ft. Santiago 13 . is a routine part of mod. airways at an altitude at which members of the public travel w/ sufficient regularity that R’s expectation of privacy from aerial observation was not one that society is prepared to recognize as reasonable. threat of injury) [Concurring: O’Connor]  Clarifies Ciraolo: court relies too much on compliance w/ FAA regulations whose purpose is to promote air safety.  no reasonable expectation that curtilage is free from such aerial observation There is considerable public use of airspace at altitudes of 400 ft. *Dissent is saying it goes against Katz.000 ft. o Expectation of privacy is defeated if a single member of the public could conceivably position herself in area w/out doing anything illegal o Ignores Katz: diminishes the amount of privacy and freedom by police surveillance of something that a passerby readily sees.  If the public can generally be expected to travel over residential backyards at an altitude of 400 ft. joined by Marshall and Stevens]     [Notes]  “Plain view doctrine”: bc officers merely observed equipment in plain view form a place they were lawfully entitled to be. they did not conduct a search for 4th purposes (Arizona v. life and it’s unreasonable for persons on the ground to expect their curtilage will not be observed. so R did not have reasonable expectation that his curtilage was protected from naked-eye aerial observation. o Not conclusive that any member of public could legally fly over R’s property at 400 ft. but bc public air travel at 1. o Legal right to be in the position of observance does not suffice Similar to Douglas in White: worried about an oppressive Orwell society    [Dissenting: Brennan. D knowingly exposed his greenhouse to the public bc any member of the public could legally have been flying over D’s property in a helicopter at the altitude of 400 ft. o Ciraolo’s expectation to privacy was unreasonable not bc the airplane was where it had a right to be. which was lawful for helicopter flights. Just because someone could doesn’t mean the will Helicopter is not like standing on a public road and vantage point is not one that any citizen could readily share.  Surveillance by Helicopters o Florida v. and could have observed his greenhouse. Does not believe one knowingly exposes an area to the public solely bc a helicopter may legally fly above it. Hicks). not to protect 4th. *Suggests that the D must provide facts that would support the claim that his expectation of privacy was reasonable. dust. noise. or that police helicopters may often fly at 400 ft. Observations from helicopters ≠ ground-level observations from public road or sidewalks o Cannot cover and enclose curtilage to block aerial views Relevant inquiry: whether the helicopter was in the pub... o Would be different if helicopter was flying contrary to law or regulation o Any member of the public could legally fly over R’s property and observe—police officer did no more Helicopter did not interfere w/ R’s use of greenhouse or other parts of curtilage (no wind.  Held: not a search.

Flying overhead did not reveal intimate details connected w/ the use of the home or curtilage and there was no undue noise. wind. No search as to those they didn’t touch. Hicks.shots fired. Santiago 14 .  Plain View Doctrine Would have been different if helicopter was flying below law or regulation. Saw expensive stereo equipment and recorded serial numbers. Cops lawfully come to investigate. Arizona v. Cops had to pick up some. dust. or threat of injury.

 Wrapped parcel is an “effect” w/in 4th (letters and other sealed packages)  Reasonableness of invasion of citizen’s privacy must be appraised on the basis of the facts at that time: o Private carrier independently opened the package and made examination  Private character  does not violate 4th  Federal agent invasion of R’s privacy: o Removed tube from box. Box was put back together. removed plastic bags from tube. interest bc it was certain substance was contraband)  De minimis impact on property interests [Concurring in Part III: White]    Court consistently rejects distinctions btw containers and packages and says although there is probable cause to believe container or package has contraband. but it was reasonable o Privacy interest was already compromised o FedEx employees already learned a great deal about contents o Package remained unsealed o Apparent the tube contained contraband and little else  probable cause  Field test would only disclose whether or not it was coke. o Agent was avoiding risk of flaw in employee’s recollection o R had no privacy interest bc it remained unsealed and FedEx invited federal agent o Removal and visual inspection did not allow agent to learn anything not previously learned o Therefore. he knew it contained white powder.United States v. Second field test was conducted. Contents would not tell him anything more than he had already been told. Fact that a private party has searched has never been used to legitimize gov. Jacobsen [1984] Search by 3rd Party [Opinion: Stevens] Facts: FedEx employee saw a forklift damaged package. o Not clear whether contents were readily visible. would remand case to factfind Field test was not a 4th search: o Officer came upon powder innocently [Dissenting: Brennan. Holding: Federal agents did not violate any constitutionally protected 4th privacy interest that had not already been frustrated as the result of private conduct. agents to commit searches they previously would not have—huge implications on the entire concept of legitimate expectations of privacy Court expands the reach of private-search doctrine beyond its logical bounds o Difficult to say Rs have no expectation of privacy in a closed container bc a private party previously opened it and viewed its contents. package was rewrapped. joined by Marshall]   Santiago 15 . would not tell anything more o “Sniff test” analogy—not a search bc it is less intrusive and only discloses presence or absence of narcotics. not a search w/in 4th  Agents’ dominion and control was a seizure. interests  destruction of powder during field test was reasonable (substantial gov. and DEA got a search warrant for the place to which it was addressed. it does not justify a warrantless examination of its contents. Inside was a tube. o Did affect R’s possessory interests bc it destroyed a quantity of powder  Must balance the nature and quality of the intrusion on 4th against importance of gov. which manager cut open and found zip-locks w/ white powder and notified DEA. The possessory interest infringement was de minimis and constitutionally reasonable. DEA agent reopened and did a field test to determine it was cocaine. and removed trace of powder o Chemical test of powder  When agent saw package. conduct Majority’s opinion would allow gov. so he opened the package and examined it to look at contents pursuant to company policy.

” *Chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy and is not a search. Santiago 16 . Rs could not have had a reasonable expectation of privacy bc the DEA against were already able to identify it as contraband w/ virtual certainty o Only destroyed a small amount of powder Rs had no reasonable expectation of privacy in identity of the powder bc the DEA agent could identify w/ “virtual certainty” o *4th does not apply if a private person acts “as an instrument or agent of the Government.

o Pursuit-seizure issue o Person has been seized only if a reasonable person would have believed that she was not free to leave is a necessary but not sufficient condition for seizure through show of authority.Chapter 3: Seizures    Unless the police action is a “seizure. do not apply. only if. don’t need to inform that they can refuse)(Drayton) Traffic Stop is a seizure of both driver and passenger (Brendlin) When ambiguous turn to Medenhall test Santiago 17 . by means of physical force or show of authority. “Reasonable Person” o Presupposes an innocent person o Court evaluates on the assumption that the individual has nothing illegal to hide.  Personal seizures: reasonable suspicion. o “Tangible” property is seized when there is some meaningful interference w/ an individual’s possessory interests in the property. Persons: o Arrest of a person constitutes a seizure of that person o When an officer. Hodari D. touching) or individual submits (Hodari) No seizure when cops board bus and ask to search bags and people so long as consent is voluntary (totality of the circumstances. by means of physical force or show of authority.” o Implication: subjective intention of the police officer to forcibly detain a suspect is irrelevant. No seizure when cops chases down an individual unless cop uses force (weapons. Property: o Seizure of property invades a person’s possessory interest in that property.” o A person is seized when the officer either terminates or restrains the individual’s freedom of movement through means intentionally applied. a reasonable person would have believed that he was not free to leave. o “A reasonable person would have believed that he was not free to leave” Terry Stops o “Only when the officer. California v. terminates or restrains a person’s freedom of movement through means intentionally applied. If “seizure”  To be lawfully seized must have “reasonable suspicion”           o Reasonable?  Property: search warrant based on probable cause or a justification for not securing a warrant  Persons: probable cause to make the arrest and if the arrest occurs in the home a warrant is usually required. Mendenhall “Reasonable Person” Test o When police-citizen encounters are not clear-cut o Objective component:  “a person has been ‘seized’ w/in the meaning of the 4th Amend.” the various restrictions of the 4th Amend. in view or all the circumstances surrounding the incident. has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.

Not enough for policeman to say “Stop.California v. and officer tackled/handcuffed H. . even if he did not subdue him. and admissible. Crack rock was abandoned. not whenever a reasonable person would have believe that she was not free to leave. If so  drugs were fruit of seizure and evidence is excluded. joined by Marshall]  If the officer touched H before he dropped rock. then coke a fruit of that seizure and must be excluded  If after. submission to the assertion of authority o No physical force bc H was not touched o No submission bc H kept on running  If breaks away then not seized  Mendenhall test: person is seized w/in meaning of 4th if a reasonable person would have believed he was not free to leave (Objective test). Youths ran away. *Changed Terry-Mendenhall standard for pursuit-seizure—person has been seized only if. rather than officer’s conduct o Interests would be better served w/ adherence to a standard that allows police to determine in advance 4th implications. o “Only if” language. but not a sufficient. .” *Two ways a police officer can seize a person: use of physical force or show of authority. in the name of the law!” A seizure requires either physical force . even if it’s unsuccessful  To be lawfully seized must have “reasonable suspicion”  CA concedes that they did not have reasonable suspicion to seize  The question is whether he was seized before or after he dropped the rock  If before. . T-M test states a necessary. condition for seizure effected through “a show of authority. H tossed a small rock (coke). Holding: There is no seizure merely by the showing of authority bc the suspect did not yield. then drug was abandoned and thus lawfully recovered  Seizure in dictionary: “taking possession”  Common law arrest: bringing w/in physical control  Arrest requires either physical force or where that is absent.  4th Amend. necessary clause. not “whenever”. but not sufficient for seizure. . officers gave chase.  H was seized when he was tackled o Pursuit was not a seizure bc it did not make H halt o Coke abandoned while running was not the fruit of a seizure [Dissenting: Stevens. where that is absent. saw 45 youths huddled around a car. submission to the assertion of authority.” w/out reasonable suspicion of wrongdoing in hope that during the pursuit the citizen’s response will give police a legitimate basis to seize the individual. *SUBMISSION TO AUTHORITY = SEIZURE Santiago 18 . Issue: whether H was “seized” w/in meaning of 4th when he dropped the crack rock. an arrest would have occurred  Common-law distinction btw arrest and attempted arrest o Unlawful to take a presumptively innocent person into custody  Katz and Terry reject the notion that common law of “arrest” defines the limits of the term “seizure” in 4th. not at which moment there was a “submission” o Holding leads to coercive and intimidating behavior to frighten citizens into surrendering whatever privacy rights they still have  Time interval btw officer’s show of authority and complete submission by the citizen—officer can order person to “freeze. He was seized when tackled. meaning: grasping or application of physical force w/ lawful authority. or. found on the ground. Hodari D [1991] Fruit of Seizure (submission to authority) [Opinion: Scalia] Facts: Officers in street clothes (w/ jackets w/ “Police” embossing on front/back) patrolled high-crime area.  Mendenhall: “reasonable person” standard keeps w/ 4th case law  Court concludes the timing of the seizure is governed by the citizen’s reaction. if not  drugs were abandoned and lawfully recovered by police.

Santiago 19 .

Police preferred “cooperation” but would not let the lack of it stand in their way– the scene was one of obligatory participation. consent was voluntary  searches were reasonable [Dissenting: Souter. Officer went up to Rs. Officer did not inform Rs of their right to refuse to cooperate. Law enforcement officers do not violate 4th prohibition of unreasonable seizures by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen. ask for I. Officer noticed Rs were wearing baggy pants and heavy jackets in the warm weather. completed search w/ permission.  If a reasonable person would feel free to terminate encounter. requires more than cops to request your compliance in quiet tone of voice  *When police question an individual about suspected criminal activity. joined by Stevens and Ginsburg]  Officers took control of the passenger compartment  Reasonable inference was that the “interdiction” was not a consensual exercise but one the police would carry out whatever the circumstances. fact that it was on a bus does not make it illegal  Voluntariness: officers asked for consent to search luggage and persons o Totality of the circumstance: request permission. he/she has not been seized  Proper inquiry: whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter o Police did not seize respondents when the boarded the bus and began questioning passengers  No reason to believe passengers were req’d to answer officers’ question  No touching weapon or intimidating movements  Aisle was free for exit  Spoke in a polite. In this case there was no search/seizure and the consent was voluntary.United States v. Asked to check person. Drayton [2002] Consent to search on bus [Opinion: Kennedy] Facts: 3 officers in plain clothes went onto bus during a scheduled stop as part of a routine drug and weapons interdiction effort.. Rs consented and officer found drugs in legs.D. showed a badge. *Police do not need individualized suspicion as long as they do not induce cooperation by coercive means. and found no contraband. and request consent to search luggage w/o individualized suspicion as long as they do not use coercive means. asked to search luggage. Holding: Totality of the circumstances must control. *Fact that an officer is uniformed or not and/or visibly armed or not carries little weight in the “seizure” analysis in the bus-sweep context.  Bostich allowed cops to approach bus passengers and ask random q’s so long as reasonable person felt they were free to go  Officers may ask questions. Santiago 20 . brief questioning in a public place by itself does not constitute a seizure. o Narrow alley analogy – 3 cops surrounding and aisle is only 15 inches wide o Cops controlled entire passenger compartment – Majority rejects since bus To meet the Bostick Test of whether a person may feel free to decline police interaction. quiet voice  If it was on the street would have been constitutional. no reasonable person would think free to ignore police altogether. which indicated concealing weapons/narcotics in officer’s experience. so the searches were reasonable. Issue: Whether officers must advise bus passengers during encounters of their right not to cooperate.

but pulled it over to verify permit matched the vehicle. and called reinforcements. Officer recognized passenger. Officer ordered B out of the car at gunpoint. Patdown search of driver found syringes and plastic bag of drugs. so she was also formally arrested. Later officers saw the car was legal through Nov..  Person seized when the officer by physical force or show of authority restrains his freedom of movement. o Must be actual submission  When ambiguous turn to Medenhall test  Seizure occurred when car came to a halt  Whether a reasonable person in B’s position when the car stopped would have believed himself free to “terminate the encounter” b/w police and himself. is the passenger of the car seized w/in the meaning of 4th? Holding: Yes. Officers searched car and found tubing. declared him under arrest.   DRAYTON ARGUMENT!  This case is a CAR—Drayton was a BUS o Intrusion on “privacy and personal security” does not distinguish btw passenger/driver Franks: traffic stop curtails a passenger bc it is hard to leave. recalled he was parole violator w/ outstanding arrest warrant. phoned dispatcher. Issue: When a police officer makes a traffic stop. 123 Chapter 4: Probable Cause Santiago 21 . searched him.Brendlin v. scale. B opened and closed the door. and learned renewal was being processed. o Unintended person may be the object of the detention as long as detention is willful and not the consequence of an unknowing act.” Pg. passenger is seized as well and so may challenge the constitutionality of the stop. B. California [2007] Seizure of a passenger in a car [Opinion: Souter] Facts: Officers saw a car w/ expired registration tags. and found syringe cap. and other meth stuff. B argued officers lacked probably cause/reasonable suspicion to make traffic stop. o “We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart w/out police permission.

 Probable cause  warrant o If no warrant.  Objective concept o However. United States: subjective intentions play no role in ordinary. and o In the case of a search. a specifically described item subject to seizure will be found in the place to be searched. probable-cause analysis. o All arrests require probable cause o Probable cause is the default position for searches and seizures of property.  Gen.  Probable cause is a fluid concept Santiago 22 . principles: o Text of 4th provides that arrest and search warrants may only be issued if supported by probable cause. Const.  Whren v. then court is called on to determine whether officer’s actions were reasonable.Forth Amendment: “Probable Cause”  Appears in the warrant clause  Balances competing needs to safeguard citizens from rash and unreasonable interferences w/ privacy and from unfounded charges of crime while at the same time giving fair leeway for enforcing the law in the community’s protection. and of which he has reasonably trustworthy information. are sufficient in themselves to warrant a person of reasonable caution in the belief that: o In the case of an arrest. an offense has been committed and the person to be arrested committed it. the court takes into account the expertise of the officer.  Informants: must evaluate the credibility of the source o Gates Totality of the Circumstances test  Replaced Aguilar-Spinelli  Anonymous letter that was very specific  Magistrate must conduct a balanced assessment of the relative weights of all the various indicia of reliability and unreliability attending an informant’s tip.  Exists when the facts and circumstances w/in an officer’s personal knowledge. in determining what a “person of reasonable caution” would believe.

a known center for illegal importation and distribution. United States [1949] PC for a search defined [Opinion: Rutledge] Facts: Investigator saw B drive by in a car he recognized and thought it looked “heavily loaded.Brinegar v. o Joplin.   Santiago 23 . and crowded his car to the side of the road. are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.  Officer had personal knowledge from direct observation that B used MO as a source of supply on other occasions. in Joplin (Direct evidence) o OK was a “dry” state. from other rights bc there is no way for individual to invoke advance protection (injunction) Automobile is an “effect” and w/in 4th o Gravity of the offense: few bottles of bourbon in a car does not have the same reasonableness for a search as looking for a kidnapped child. Probable cause exists where the facts and circumstances within the officers' knowledge. Officers asked if B had liquor in the car and B said “Not too much” and later admitted he had 12 cases.  Probable causes exists when there is reasonable ground for the belief of guilt o Allows officers to do their job.  Carroll: under 4th a valid search of a vehicle moving on a public highway may be had w/out a warrant. and driver was heading in direction from a known source of liquor supply toward a probable market. o Officer personally observed B’s use of liquor dispensing est. but leaves room for the mistakes of reasonable men. not a home or any other place of privacy [Concurring: Burton]  Earlier events justified agents’ steps taken and imposed a positive duty to investigate further to discover or interrupt crime and prevent some or all of its damaging consequences. o Similar to Carroll: automobile moving on a public highway. but only if probable cause for the search exists. Holding: Agent had good ground for believing B was engaged in illicit liquor running/dealing  evidence is admissible on the issue of probable cause.” B sped up as he drove by. this case is observation and hearsay. o MOST IMPORTANT: Officer observed B’s recent activities established that he was so engaged— loading liquor 6 months prior to search. when they are taken away it cowers the population and puts terror in every heart. MO was a ready convenient and probable place for persons to violate OK law. Officers gave chase. o Only flagrant abuses come to the attention of the courts bc when officers find nothing incriminating. o Different from Carroll: C offered to sell liquor to agents through direct conversations. officers recognize the driver and the car.  Not suspicion!  It was a car. Officers placed B under arrest and seized liquor. C in Detroit. o Carroll gives blanket authority to officers to stop and search cars on suspicion o Drawing upon his experience prosecuting Nazi Germany—protections differentiate an open society from a totalitarian one. No probable cause up to the time the car was put off the road and stopped. o Diff. Brinegar [Dissenting: Jackson]  4th freedoms are indispensible. MO was “wet”  probability B was using highway for forbidden transportation. w/out warrant officers patrolling highway. here OK illegal market known to officer. arrested B for same crime. and of which they have reasonably trustworthy information. overtook him. there is no redress.

o Reasonable officer could conclude there was probable cause to believe P committed crime.Draper v. either solely or jointly. o Car passenger is often engaged in a common enterprise w/ the driver. having the same interest in concealing any wrongdoing  Guilty by association  This case  reasonable for an officer to infer a common enterprise among the three men based on quantity of drugs and cash indicating the likelihood of drug dealing. therefore. officer observed a large amt of rolled up $. said he would be carrying a tan zipper bag. “reasonable grounds” to believe the remaining unverified info was true (D would have heroin)  Probable cause is about probabilities (Brinegar) [Dissenting: Douglas]  Arrest made on the mere word of an informer violated the 4th—if arrest is made w/out a warrant. Holding: Knowledge of the related facts and circumstances gave officer “probable cause” w/in meaning of 4th to believe D had committed or was committing a violation of narcotic laws. so the officer arrested all of them. the offense must be committed in the presence of the officer OR there must be “reasonable grounds” to believe the person has committed/is committing a violation of the narcs law. In law it is good or bad when it starts and does not change character from its success. stopped and arrested him. Pringle [2003] PC of an arrest [Opinion: Rehnquist] Facts: Car stopped for speeding. o H’s info was hearsay.” o Reasonable inference that all three occupants had knowledge of and exercised dominion and control over the coke. which justify his arrest w/o a warrant. o None of this evidence could have gone to a magistrate o Officers did not know the grounds which the informer based his conclusion Officer must act on some evidence known to him o Even the guilty may not be implicated on suspicion alone   “A search is not to be made legal by what it turns up. Driver consented to a search of the vehicle and officer found cash in the glove compartment and coke btw armrest and back seat. arrest was consistent w/ 4th and 14th. P also claimed other occupants did not know about drugs. On 9th officer saw person fitting description. When driver went into glove box for registration. United States [1959] PC w/ Informant [Opinion: Whittaker] Facts: Officer had 29 years experience and paid H as a “special employee” for six months to give info about violations of narcotics laws. and searched his person to find two heroin envelopes and a syringe.  Officer had probable cause and reasonable grounds to believe D was violating narc laws.  Probable cause to arrest an individual  examine the events leading up to the arrest and decide “whether these historical facts. and that he would walk real fast. Maryland v. 144. amount to” probable cause. o When man fit description  info was verified. H described D’s clothing. would be @ train station morning of Sept. 8th or 9th. P waived Miranda rights and gave oral/written confession that the coke belonged to him and he intended to sell the coke for sex. but he was employed for that purpose and was accurate/reliable in the past  Officer would have been neglectful not to pursue it. Holding: Officer had probable cause to believe that P had committed crime. viewed from the standpoint of an objectively reasonable police officer. H said D was peddling narcs. 3 men in car denied ownership. Santiago 24 .” Pg.

Spinelli v. United States (1969) – Aguilar-Spinelli Test (superseded by Gates) Facts: Man convicted of traveling for the purposes of conducting gambling operations argues warrant for his arrest lacked probable cause. Holding: Magistrate must be able to make an independent determination there was probable cause to issue a warrant.  Test for determining whether or not sufficient evidence presented to magistrate to support a showing of PC: 1. Veracity (truthfulness) prong: Informant is reliable and credible 2. Basis of information: Underlying circumstances relied on by the person providing the information (access to information, not just repeating rumors)

Illinois v. Gates [1983] Totality-of-circumstances for PC [Opinion: Rehnquist]
Facts: Anonymous handwritten letter to police described a couple who fly/drive to FL, loads a car w/ drugs, bring the car back to IL, and have never worked. Officer pursued tip, found plane and hotel reservations, and obtained a search warrant based on corroborated evidence. Holding: Abandons the two-pronged test of Aguilar-Spinelli and reaffirms the totality-of-the-circumstances analysis for probable cause determinations.  Totality-of-the-circumstances approach to probable cause o Allows for a deficiency in one prong to be compensated for to determine the overall reliability of a tip  Rejects Aguillar-Spinelli bc it is too rigid and impede the task of law enforcement o Does not leave room for the anonymous citizen informant.  Magistrate must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay info, there is a fair probability that contraband or evidence of a crime will be found in a particular place. o Reviewing court: ensure magistrate had a “substantial basis” for concluding probable cause existed. o Flexible, common-sense standard, which better serves 4th  TOTC values corroboration of details by independent police work o This case: fact that letter was anonymous became less significant when officer investigated and corroborated.

[Concurring: White]
   Agrees with upholding warrant, but uses Aguilar-Spinelli, not TOTC Warrant is invalid under new TOTC test Aguilar and Spinelli dealt w/ known informants. Anonymous informants are neither presumptively reliable nor is there any basis for assuming the info was obtained in a reliable way. o If we do not accept conclusory statements from police, how is there any rational basis to do so from anonymous informants? Conceivable that police corroboration might est. reliability for Aguilar’s veracity prong and self-verifying detail for Spinelli. o A-S provides structure and guards against attendant intrusions based on unreliable info. Fear that TOTC may eviscerate probable cause. Discrepancies btw informant’s predictions and the facts known to officer o Cast doubt on informant’s hypothesis o Made G’s conduct seem less unusual o Undermines the reasonableness of relying on an anonymous letter for making a forcible entry into a private home. Subsequent events may not be considered in evaluating the warrant No one knows who the informant in this case was, or what motivated him/her to write the note

[Dissenting: Brennan, joined by Marshall]

  

[Dissent: Stevens]

 

Santiago 25

Corroboration was ordinary innocent activity

Chapter 5: Warrants
   All warrants require probable cause Supported by oath or affirmation o In front of a neutral and detached magistrate “Particularity” describing: o “Place to be searched”  Officer executing the warrant can identify it w/ reasonable effort. o “Persons or things to be seized”  Primarily relates to arrest warrants (the seizure of a person)  Assures that the magistrate approves the scope of the search and the person whose property is being searched can also ascertain the scope. o Required to avoid abuses exemplified by the general warrants and writs of assistance used in English and colonial common law. o Warrant w/out particularity permits police officers too much discretion in its execution and undercuts the probable cause requirement.

Groh v. Ramirez [2004] Invalid Warrant- no particularity [Opinion: Stevens]

Facts: Concerned citizen told G, a special agent, that R had weapons. G applied for search warrant, describing weapons, and gave an affidavit. Magistrate signed warrant form, but warrant failed to identify the items G could seize. G searched house and gave Mrs. R a copy of warrant. G faxed R’s attorney a copy of the application that listed items to be seized. Holding: (1) A search conducted pursuant to a warrant that fails to conform to the particularity requirement of 4th is unconstitutional; (2) Officer not entitled to qualified immunity.  Warrant was plainly invalid, did not meet requirement of particularly describing the persons or things to be seized.  Fact that application adequately described the “things to be seized” does not save the warrant from its facial invalidity. o Functionality of 4th not necessarily met by other documents o Court may construe a warrant w/ reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation and if the supporting document accompanies the warrant.  This case it did not happen  Warrant did not describe the items to be seized at all, therefore, not “reasonable” under 4th  Absent exigent circumstances, a warrantless entry to search for weapons or contraband is unconstitutional  W/out items to be searched, no written assurance that the Magistrate actually found PC to search for and seize every item in the affidavit.  A particular warrant assures the individual of the lawful authority of the officer, his need to search, and the limits of his power to search.  It is up to the officers to make sure the warrant is okay

[Dissenting: Kennedy, joined by Rehnquist]
     4th was violated, but officer should receive qualified immunity

[Dissenting: Thomas, joined by Scalia]
Neither the warrant clause and unreasonableness clause explicitly requires a warrant. Defective warrant is different than a “warrantless search” o Ask whether the search was unreasonable  it was not Different than a warrantless search bc the search still has the benefit of a determination by a neutral magistrate that there is probable cause to search a particular place and seize particular items. Search was not unreasonable  Constitutional

Santiago 26

Magistrate did not make any changes to the affidavit, so he presumably authorized the search for all items listed. G is entitled to qualified immunity o

United States v. Watson [1976] Warrantless Arrest
Holding: upheld a warrantless mid-day public arrest.

Payton v. New York [1980] Warrantless arrest in the home [Opinion: Stevens]
Facts: After investigating for two days, officers had enough probable cause to believe P murdered a man. 6 officers went to P’s apartment w/out a warrant, knocked @ door, used crowbars to enter the apartment, and found and seized a casing in plain view. P later surrendered to police, was indicted for murder, and moved to suppress the evidence. Holding: Absent exigent circumstances, warrantless arrests in the home are unconstitutional.  Absent exigent circumstances, a warrantless entry to search for weapons/contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found w/in. o Interest in preserving the privacy/sanctity of the home  Watson Court: (1) Warrantless arrest in a public place is valid if the arresting officer had probable cause to believe the suspect is a felon, (2) Consensus among the States adhering to that well-settled common-law rule; and (c) expression of the judgment of Congress that such an arrest is “reasonable.” o No direct authority and tenet that “a man’s house is his castle” strongly suggests that the prevailing practice was not to make such arrests o Decline during the last decade in # of states permitting warrantless entries for arrest, virtually all state courts have held warrantless entries into the home to arrest is invalid absent exigent circumstances.

[Dissenting: White, joined by Chief Justice and Rehnquist]
 Common law restrictions on home arrests provide protections for privacy interests w/ the home: o Only for felony o Officers must knock and announce their presence o Must be done during the daytime o Must be stringent probable cause (arrestee committed a crime and is present @ time of entry) Officers would not use warrantless arrest entries as pretext to justify an otherwise invalid warrantless search bc warrantless arrest entry would rarely be as complete as one w/ a search warrant. o Police would not want to risk losing valuable evidence through a pretextual arrest entry, rather than applying to a magistrate for a search warrant. Simple rule: after knocking and announcing their presence, police may enter the home to make a daytime arrest w/out a warrant when there is probable cause to believe that the person to be arrested committed a felony and is present in the house.

Steagald v. United States [1981] Search of home w/ arrest warrant [Opinion: Marshall]
Facts: Confidential informant told DEA he might be able to find L, a fugitive wanted on drug charges, and gave number where L could be located. DEA contacted Telephone Co. to get the address and found two men standing outside the house (one was S). Agents searched house even though L was not home and saw what they believed to be coke. Officer obtained a search warrant and conducted a 2nd and 3rd search, uncovering coke. S was the owner of the home and was convicted on the basis of evidence uncovered during a search of his residence for L. Holding: An arrest warrant is inadequate to protect 4th interests of persons not named in the warrant when their homes are searched w/out their consent and in the absence of extigent circumstances.

Santiago 27

  

 

Arrest warrant: issued by a magistrate upon a showing that probable cause exists to believe the subject of the warrant has committed an offense; protects an individual from an unreasonable seizure. Search warrant: issued upon a showing of probable cause to believe that the legitimate object of a search is located in a particular place, and therefore safeguards an individual’s interest in the privacy of his home/possessions against the unjustified intrusion of police. Case depends upon what the warrant authorized the agents to do. o Agents entered the home of a 3rd person, which was never subjected to the detached scrutiny of a judicial officer. o When search of the home is for a person, rather than an object there is the same standard  Absent exigent circumstances, judicially untested determinations are not reliable enough to justify an entry into a person’s home to arrest him w/o a warrant, or a search of a home for objects in the absence of a search warrant. Potential for abuse—police could search the homes of all the individual’s friends Search warrant requirement will not significantly impede law enforcement efforts o Necessary situations are few bc arrest warrant will suffice to enter a suspect’s own residence to effect his arrest. o If probable cause  no warrant required to apprehend a suspected felon in a public place  Subject of arrest warrant can be seized before entering/leaving 3rd party’s home o Exigent-circumstances doctrine: limits situations where a search warrant is needed o Inconvenience incurred by the police is not significant. Protects right of presumptively innocent people to be secure in their homes from unjustified, forcible intrusions by Gov. Problem of mobility of the fugitive Interference w/ 3rd party’s privacy interests is not significant o Not a general search, but a specific one for the subject of the arrest warrant o Coke was in plain view during a “sweep search” “Reasonableness” standard does not require a separate search warrant. 3rd party dwelling can be considered a “home” after a few days of suspect living in it. Franks: arrest warrant for one person does not mean a search warrant for another.

[Dissenting: Rehnquist, joined by White]
    

*** Schrödinger's cat- in situations of uncertainties, we don’t know until we actbefore

we act we don’t know if the suspect is guiltybefore searching or seizing we don’t know the outcome
  “A search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success.” Pg. 144. Draper- Dissent Terry- case of first impressions o Cops view suspicious activity and stop and frisk without knowing what the would find o Was the stop justified at its inception

Santiago 28

” o Whether the officer’s action was justified as its inception. Police may conduct searches on less than “probable cause” and instead on “reasonable suspicion” For the first time. Suspect & passengers req’d to leave car. Court stated that a person can be “seized” short of being arrested (4th is implicated) o “Seizure” occurs when a police officer accosts and individual and restrains his freedom to walk away. and whether it was reasonably related in scope to the circumstances that justified the interference in the first place.right of privacy. Balancing the need to search or seize against the invasion which the search or seizure entails. but whether the search was reasonable.Chapter 6: Searches and Seizures Without Probable Cause   Default is supposed to be probable cause but reality is “reasonableness” o Degree of intrusion vs. What’s the general rule for Terry searches? When does the right arise?  Right to stop arises (seizure): (1) when officer observes unusual activity making him think criminal activity is going on. right to not be harassed/profiled  Government interest. (2) Reasonable suspicion based on obj. Terry Stops          When do Terry problems arise?  When police don’t want to make an arrest. Once officer conducts justified ‘stop’ of car. A. may conduct a carefully limited search of outer clothing of suspect to discover weapons. is involved in criminal activity (PC not req’d)  Protective Frisk (search): Once officer conducts a stop.” Searches/seizures can vary in their intrusiveness o Police-citizen on-the-street encounters that do not involve arrests or full-blown searches come w/in 4th but are considered lawful despite the absence of a warrant or probable cause. facts that the indiv. o Any weapons seized may be admitted as evidence. Warrant Clause not necessary to a stop-and-frisk—based on “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security. may also req. has in some way restrained the liberty of a citizen has a “seizure” occurred. Three types of encounters:  Conversation: (no stop)  no justification req’d  Stop (but not arrest)  reasonable suspicion necessary  Arrest  PC necessary Santiago 29 . He can briefly detain suspect to make inquiries.  Vehicle stop: also may apply to allow officers to stop a car. to the view that the appropriate test “is not whether it is reasonable to procure a search warrant. o Limited “frisk” or “pat down” is a reasonable search. gravity of investigated offense Exceptions to probable cause o Terry Stops o Special needs o Consent Not a full stopjust a mere inconvenience (no seizure) Test is REASONABLENESS o Determined by a balancing of government and citizens interest  Citizen interest. passengers/drivers to leave car if it’s a legitimate safety measure.crime prevention and cop safety Significant diminution in the role of the Warrant Clause in 4th Move by SC away from the proposition that warrantless searches are per se unreasonable. just want to briefly detain  When officers are out patrolling rather than investigating. o Only when the officer by means of physical force or show of authority.

the officer can conduct a reasonable search for weapons.  Decision in 1960s during the civil rights movement  Government interest: o Protection of cops o Crime prevention  Citizens interest: o Serious intrusion of their sanctity of a person which may cause indignity Santiago 30 .  Reasonable Suspicion: Police routinely engage in activity that does not reach the level of full-scale intrusion req’ing PC. Officer ordered all three men to face the wall. Ohio Stop:  Brief stop & frisk of a person whose behavior an officer reasonably considers suspicious & dangerous. but the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. and took them into the station where 2 of the men were charged w/ carrying concealed weapons. and found a pistol in his pocket. patted him down. must have reasonable suspicion (lower standard than PC) Terry v. regardless of PC for arrest. would lead to formation of an objectively reasonable suspicion that the subject is planning or carrying out illegal activity. spun him around. Individual’s interest o Terry search is limited to scope & duration: must look in areas where a weapon may be found.  Test: Whether a reasonably prudent man in circumstances would be warranted in the belief that his safety or that of others is in danger. in light of the TOTC. Officer approached the men. o Government vs. Holding: Where the police officer has reason to believe he is dealing w/ an armed and dangerous individual. Ohio [1967] Stop-and-Frisk [Opinion: Warren] Facts: Officer patrolling saw two men who did not look right to him. Must be based on specific reasonable inference which he is entitled to draw from the facts in light of his experience. and asked for their names. cop may briefly detain individual for questioning  Reasonable suspicion for frisk: If the officer observes conduct that leads him to form an objectively reasonable suspicion (reasonably prudent person) based on the TOC. patted them down. of limited scope Terry v. The search has to be brief. He watched them each walk down the road. routine citizen stops & brief traffic stops in order to question. identified himself. lesser intrusions range from conversations with people.  Officers observation of suspicious activity + reason to believe suspect is armed and dangerous= Constitutional search and seizure What is the crux of this issue?  Officer safety  Crime prevention important too. One man mumbled something. that the suspect is armed and dangerous.What constitutes a stop?  Unclear from Terry and other cases what interference constitutes a stop under the 4th  But for an investigative stop. so officer grabbed T. Officer suspected them of “casing a job” and feared they may have a gun. the officer may conduct a frisk limited in scope to searching for weapons. The officer need not be absolutely certain that the individual is armed. and turn back 5-6 times each. How is reasonable suspicion evaluated?  Totality of the Circumstances Test: to evaluate basis of reasonable suspicion. consider cop’s experience in light of all other factors that formed the suspicion  Reasonable suspicion for stop: Where cop observes conduct that. look into the window.

it is unreasonable to deny officer the power to take measures to determine whether the person is carrying a weapon.: effective crime prevention and detection. Reasonableness of Search/Seizure: (1) Was the officer’s action justified at its inception? (2) Was it reasonably related in scope to the circumstances which justified the interference in the first place? Balancing test to assess reasonableness of officer’s conduct: o Balancing the need to search (or seize) against the invasion which the search (or seizure) entails. o Does not need warrant bc it is a swift action based upon on-the-spot observations of the officer on the beat. Reasonableness of the particular intrusion: o Objective standard: o Would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate? Scope of the search: o Limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby o Less than a full search. warranted by the circumstances. “stop and frisk” o Constitutes a “seizure” whenever a police officer accosts an individual and restrains his freedom to walk away.        Right of a police officer to make an on-the-street stop. and pat down for weapons. o If reasonable  frisk must be immediate and automatic [Concurring: White]    Person approached may refuse to cooperate and go on his way Temporary detention. even though it is a serious intrusion Exclusionary Rule: o Mainly about deterring bad police behavior  Also preserves judicial integrity Blacks fear every stop will be pretextual [Concurring: Harlan] Officer must have constitutional grounds to make a forcible stop. That cops can frisk a hostile person for protection is correct but: o Frisk depends on the reasonableness of a forcible stop to investigate a suspected crime. police officer taking steps to assure the person he is dealing w/ is not armed w/ a weapon that could unexpectedly/fatally be used against him.  Need for law enforcement officers to protect themselves and other prospective victims of violence where they lack PC for an arrest.  When officer is justified in believing individual is armed/dangerous. interrogate. maybe for loitering Holding gives greater authority to the police than to a judge o Totalitarian path o Step should be taken by choice of the people through an amendment [Dissent: Douglas]   Santiago 31 . justifies the protective frisk Search and Seizure is not constitutional unless there was “probable cause” to believe that: (1) A crime had been committed (2) A crime was in the process of being committed or (3) A crime was about to be committed No probable cause for carrying a weapon. o Governmental interest versus private interest  Gov.

Williams [1972—Habeas Case] Stop-and-frisk based on informant tip (reliable) [Opinion: Rehnquist] Facts: Known informant told off. he may conduct a weapons search limited in scope to this protective purpose  Off. called for assistance. [2000] Anonymous tip stop-and-frisk [Opinion: Ginsburg] Santiago 32 . the off.  Arrest supported by probable cause. [Dissent: Douglas.  Stop-and-frisk not limited to officer’s personal observation  Circumstances of investigation justify—sitting alone in car parked in high crime area @ 2. it will open the channel for the erosion of the protection of the 4th Amend. justifiably responded to informant’s tip and search was reasonable to insure his safety.’s action was a limited intrusion designed to insure his safety. who the car belonged to. or the basis of the informant’s knowledge. Gun was not visible.  Terry recognizes that a brief stop of a suspicious individual may be reasonable in light of the facts known to the officer @ the time. therefore. tapped the car window. not the rule  Terry did not involve an informant o Did not hold that whenever a policeman has a hunch he may engage in a stop and frisk. came forward personally and was immediately verifiable @ the scene (CT law for immediate arrest upon false complaint). W claims initial seizure was not justified by informant’s tip bc it lacked reliability or corroboration. reached in and removed loaded gun from Ws’ waistband. Search incident to arrest found heroin on Ws’ person and a machete and revolver in car. W rolled down the window instead.  Officer did not know about the scene: how long D was in car. and asked driver to open the door.m. joined by Douglas]  Warrantless searches are the narrowly drawn exception. acted justifiably in response to informant’s tip—informant provided info in past. whether the gun was carried legally. search of person and car incident to arrest was lawful. J. o Under these circumstances. W did not comply w/ off.’s request to step out. o So long as the officer is entitled to make a forcible stop and has reason to believe the suspect is armed and dangerous.  Conclusory hearsay not ok  Terry requires reliable information that the suspect is armed and dangerous o Guns are legal in CT  no reason to think D was dangerous  Arrest and subsequent search did not have probable cause o Did not ask if D was carrying the gun legally  Franks: hangs on the fact that informant was reliable.Adams v. reasonable cause for a stop-and-frisk. but was in the place indicated by informant. reasonable. [Dissent: Marshall. what kind of narcotics. joined by Marshall]  CT allows its citizens to carry weapons  Terry should be limited to observations by the officer himself [Dissent: Brennan]  If Terry is not read as officer observations. Holding: Off. and therefore.L. Florida v. so off. It held that there must be specific facts to conclude that an individual is involved in criminal activity and is armed and dangerous. patrolling high-crime area at 2 a. that a nearby driver was carrying narcotics and had a gun. Off.

only determined after he manipulated the pocket  unlawful. caught W and patted him down for weapons (in experience it was common for narcs to be in vicinity). arrived and saw 3 black males. saw D leaving a crack house. Holding: Police may seize contraband detected through the sense of touch during a patdown search. dissenting in part: Stevens. and retrieved it.  People have a right to go about their business when officer approaches o Flight is not going about your business o Terry recognized officers could detain individuals o resolve the ambiguity of their actions  Terry assumes the risk that officers may stop innocent people. o Flight + High Crime Area ≠ Reasonable suspicion  Character of the neighborhood makes inference of guilt less appropriate. joined by Souter. found no weapons. or a call for suspicious activity. and fled. so long as the search stays w/in the bounds marked by Terry. Off. abruptly stopped. Off. and began walking the opposite way. Santiago 33 . Off.  no reasonable suspicion o Nothing suspicious about carrying a bag. Minnesota v. D spotted the police car. examined it. [Concurring in part.Facts: Anonymous caller reported to police a young black male @ bus stop in plaid shirt carrying a gun. not when off. 1 w/ plaid shirt. Off. but had no other indication of illegal conduct. Holding: Officer is justified in making a determination of reasonable suspicion based on commonsense judgments and inferences about human behavior. Off. the time of day. During frisk.  Factual inconsistency of Off. W was holding an opaque bag. [Concurrence: Kennedy. saw the officers. ordered D to submit to patdown. o Officers can use totality of the circumstances to see if further investigation is warranted:  Unprovoked flight—cases have noted nervous behavior is pertinent  Determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. drove a caravan to a high-traffic area. Ginsburg. never thought the lump was a weapon and did not know it was cocaine. frisked him.  Individual’s presence in a high crime area is not enough particularized suspicion to believe that person is committing a crime.” o Accurate description of subject’s observable location does not show knowledge of criminal activity  Open to abuse by anonymous harassers  Decision limited to cases in which the officer’s authority to make the initial stop is at issue. found handgun in bag. had reasonable suspicion to stop W.  Anonymous tips are generally less reliable and can form the basis for reasonable suspicion only if accompanied by specific indicia of reliability. o When anon. Off. Joined by the Chief Justice]  Anonymous tips w/ similar voices can gain credibility Illinois v. accords w/ Terry to conduct a protective search of a person who has been legitimately stopped. Holding: Anonymous tip that a person is carrying a gun w/out more is insufficient to justify a police officer’s stopand-frisk of that person. and Breyer]  Accepts the rejection of per se rules but disagrees w/ conclusion that Off. Wardlow [2000] Reasonable suspicion [Opinion: Rehnquist] Facts: Off. approached JL and told him to put his hands up. tip is corroborated—sufficient indicia or reliability to make investigatory stop. o Tip had no predictive information o “The reasonableness of suspicion must be measured by what the officers knew before they conducted the search. but found a small lump in jacket. Dickerson [1993] Scope of a patdown Facts: Off. blacks think it’s dangerous to talk to police. and seized gun.

and while the subject’s knowledge of a right to refuse is a factor to be taken into account. Continued exploration of D’s pocket after determining there was no weapon amounted to an evidentiary search. repeated/prolonged nature of the consenting person waives righto be free from unreasonable searches and seizures Non-search. but thinks it got the right result.consent turns search to non-search Reasonableness Rule: validly obtained consent allows for warrantless search with or without probable cause of potentially unlimited scope Must be: o Voluntary (Bustamonte) test: totality of the circumstances o Real (Matlock) or Apparent authority (Rodriguez) o Scope cannot exceed consent granted Schneckloth v. B. there is no invasion of suspect’s privacy beyond that already authorized by officer’s search for weapons. advice of constitutional rights. lack of education. intelligence. Officer was lawfully in the position to feel the lump in D’s pocket (under Terry). Holding: Voluntariness of consent is a question of fact to be determined from all the circumstances. not who can consent. manipulation [Concurring: Scalia]  Disagrees w/ mode of analysis in Terry. The Due Process Clause does not mandate that the Santiago 34 . agrees w/ the opinion of the Court that any evidence incidentally discovered in the course of a lawful search is permissible. but not to determine the incriminating character of the object. o If object is contraband  warrantless seizure is justified by plain-view considerations. conducted a further unauthorized search.  “This Court’s decisions reflect a frank recognition that the Constitution requires the sacrifice of neither security nor liberty. found stolen carwash checks. o Factors: youth.    If police officer lawfully pats down suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent. 6 men inside car. Narrow holding. passenger gave permission to search. off. the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. length of detention.  Frisk only if reasonably believe armed and dangerous  No probable to search here  Assuming the search was lawful. Bustamonte [1972] Voluntariness of Consent [Opinion: Stewart] Facts: Off.  Voluntariness: must look to the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation. o Off. Consent Searches        Validly obtained consent allows for a warrantless search (w or w/out PC) Opens doors to a vast number of searches Waives. and use of physical punishment. coercion  Do not need to have knowledge of the right to refuse consent  Two concerns: o Legitimate need for such searches and the assurance of the absence of coercion  Applies to consent searches before Miranda “custodial interrogation”  Focus of the case: what constitutes valid consent. Plain touch v. o Question of fact  No duress. pulled over vehicle w/ lights burned out.

or that they be given carte blanche to extract what they can from a suspect. 301. police forgo all questioning.” Pg. but police would be disregarding the Constitution Franks: Majority is saying we would rather people be ignorant bc it helps law enforcement Santiago 35 . Court looks at “overborne will” [Dissenting: Marshall]  Court misstates the true issue—whether a statement of assent to search is sufficient to permit the police to search and relinquish Acala’s constitutional right to exclude police.  No sane person would knowingly relinquish a right to be free of coercion  Knowing choice—cannot make a decision w/out knowing the available alternatives  Majority’s “practicality” is capitalizing on the ignorance of citizens by getting them to relinquish rights o More criminals would be apprehended.

[Dissenting: Marshall. and never was there w/out R.  Remand to DC to reconsider the sufficiency of the evidence. no joint access or control  4th protects whether searches are unreasonable. reasonably believe to possess common authority over the premises. and was admitted in by G. GF did not actually live there. departure not justified by off. Illinois v. but who in fact does not. joined by Brennan and Stevens]  Person may limit his expectation of privacy by allowing others to exercise authority over his possessions— R did not do so here  Must have a warrant—exceptions serve “compelling” law enforcement goals (exigency). went to the door.United States v. o Therefore.  Probable cause only subject to narrow exceptions  Apparent authority—erodes 4th—only the petition can waive by word or deed  Majority ignores expectation to privacy. Matlock [1974] Consent by a 3rd party [Opinion: White] Facts: M was arrested outside of his home. o Does not preclude error o Does not require factual accuracy o “Good faith belief”  Consent must be judged against an objective standard: would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over premises?  Reasonable belief of apparent authorityok  Franks: “Apparent Authority Doctrine”: it is sufficient if consent is given by someone w/ merely apparent but not actual authority (rejected in Stoner). did not pay rent. Rodriguez [1990] Apparent Authority Doctrine [Opinion: Scalia] Facts: R’s gf let cops into R’s apartment. where they found drugs in plain view and arrested R. Santiago 36 .  Burden on State to show common authority o Here GF moved out a month before. at the time of the entry.’s misguided belief in 3rd party. G consented voluntarily to the search of the house and the east bedroom which she jointly occupied w M. Off. and had stolen the key. but may be consent from a 3rd party w/ common authority over or other sufficient relationship to the premises or effects sought to be inspected. which individuals are entitled to rely. o Name was not on lease. permitting evidence discovered in the search to be used against him at a criminal trial. Holding: A warrantless entry is valid when based upon the consent of a 3rd party whom the police. never invited friends there. Holding: Voluntary consent of any joint occupant of a residence to search the premises jointly occupied is valid against the co-occupant. had actually moved out weeks earlier but had called the apartment “ours” and said she had clothes/furniture there.  Voluntary consent is not limited to consent by the defendant.  Actual authority analysis: o Key o How long ago did she move out o Could she have visitors?  Reasonableness: does not demand government is factually correct in its assessment of what a search will produce.

individual suspicion (profiling concerns).  “Special Need”: where privacy interests of the owner are weakened and the gov. Holding: In situations of “special need. interests in regulating are heightened.    1.  Warrantless inspection reasonable if: (1) Substantial government interest that informs the regulatory scheme pursuant to which the inspection is made  Operation of a junkyard is “closely regulated” in NY—license (registration and fee). entered B’s junkyard to conduct an inspection pursuant to NY Vehicle Law. and availability for inspection by police or any DMV agent. B was charged w/ possession of stolen prop. he would change business to conform to regulations  Regulation serves State’s interest: theft can be controlled by controlling the receiver of.” where privacy interests of owner are weakened and the government interests in regulating particular bus. and scope are limited Santiago 37 . What is a reasonable search of these types of businesses? Involve BALANCING TEST: o Government interests:  Demonstrated problem?  Efficacy/Relation to interest? (False choices)  Nature of the infraction o Citizen’s Interests:  Privacy  Property  Nature of Intrusion Factors considered: law enforcement involvement in police/execution. regulated activity. B said he did not have a “police book” and did not object to an inspection.C. stolen property (3) Statute must be an adequate substitute for a warrant  Constitutionally adequate substitute for warrant: o Statute informs that inspections will be made on regular basis—notice o Time. or market in. are heightened. and whether the results are turned over to law enforcement. Is it a Closely Regulated Business? o 2. a warrantless inspection of commercial premises may be reasonable w/in meaning of 4th. a warrantless inspection of commercial premises may be reasonable w/in meaning of 4th. police book.  Owner/operator of “closely regulated” industry has reduced expectation of privacy o Lessened application of the warrant/probable cause req. Largely artificial exception  reasonableness Main themes: o Thin line between law enforcement and non-law-enforcement o Erosion of individualized suspicion o Split btw justices:  Reasonableness/balancing  Not a conservative/liberal split Closely Regulated Businesses: o 1. Administrative Searches New York v. and unregistered operation as a vehicle dismantler. police discretion. Burger [1987] Facts: Two off. “Special Needs” Searches     Any search made by government for any reason other than criminal law enforcement. place. notice (consent).  Substantial interest: auto theft has increased. industry is associated w/ problem (2) Warrantless inspections must be necessary to further the regulatory scheme  If owner knew of inspection.

 In certain circumstances. place. (2) incumbents carrying firearms. and of those who otherwise are req. Von Rabb [1989] Suspicionless Searches [Opinion: Kennedy] Facts: Commissioner implemented drug tests for certain positions w/in Customs. Gov.  Court rejects contention that most employees tested are innocent  Reasonableness: Gov.  Not intrusive test  Purpose of program: to deter drug use among those eligible for promotion o Substantial interest—presents a special need—departure from warrant/probable-cause reqs. over 10 billion people/bags searched. (3) handling “classified” material. only 42. monitor listening. Holding: Gov. Probationers. for search o Search was only for evidence of criminal wrongdoing o Vehicle dismantling easy business to join (register and pay fee)  If it’s a CRB  most NY businesses are  Even if CRB. vehicle-dismantling business is not CRB—administrative warrant was req. Joined by Stevens]  Issue is about the steps taken to detect drug use o Execratory function traditionally shielded by privacy.000 firearms found. but indicates a hallmark of success. Students.’s need to discover/prevent conditions justify intrusion of privacy by searches w/out individualized suspicion.’s need to conduct suspicionless searches required by the Customs program outweighs the privacy interests of employees engaged directly in drug interdiction. joined by Marshall and O’Connor]  Agrees w/ majority: warrantless inspections of CRBs are valid if necessary to further an urgent state interest and if authorized by statute that limits time. and Public Employees National Treasury Employees Union v. o Public interest demands effective measures to bar drug users from positions directly involving the interdiction of illegal drugs o Policy is reasonable: drug users would create safety/national security hazards o Relation to airline searches: in 15 years of program. which were a condition of placement/employment for jobs in three criteria: (1) direct involvement w/ drug interdiction.  Program does not serve ordinary needs of law enforcement  test results cannot be used in a crim pro w/out employee’s consent. but they have different subsidiary purposes and prescribe different methods of addressing the problem” o Distinguish: penal = punishment of individuals for specific acts of behavior. handing over pee for analysis—search destroys privacy and offends personal dignity.  Citizen’s interest is far more imporrtant  Opinion does not connect frequency of drug use or likelihood of harm o Implausible speculation Santiago 38 . and scope.’s interests in preventing the promotion of druggies > privacy interests of individuals [Dissent: Scalia.  “Administrative statutes and penal laws may have the same ultimate pupose of remedying the social problem.  However. administrative = rules to guide operator’s conduct of business Court declines to make states carry out statutes w/ special agents instead of police [Dissenting: Brennan.” 2. search violated 4th o Statute does not provide certainty and regularity of a warrant substitute  State is using administrative scheme as pretext for search w/out PC for evidence of criminal violations o Police recorded wheel chair #--not relevant to State’s administrative scheme of vehicles/parts  “A legislature cannot abrogate constitutional protections simply by saying that the purpose of an administrative search scheme is to prevent a certain type of crime. to carry firearms. Low incidence of conduct does not impugn the validity of the scheme.

 4th prohibition of unreasonable searches/seizures applies to public school officials. Santiago 39 . and proceeded w/ a thorough search finding pot. where she denied allegations. and TLO was brought up on delinquency charges. [1985]**Limited to searches by S. the search was justified under 4th. T. (1) Individual’s legit expectations of privacy and personal security  Must be “one that society is prepared to recognize as legitimate”  W/in school: students need to carry variety of items  do not waive right to privacy by bringing them on school grounds  Student have less expectation of privacy at school (2) Gov. bags. Principal turned letter over to police. reached further and saw rolling papers.”  Search was reasonable: o TLO accused of smoking—possession of cigarettes is relevant to the charges against her (corroboration)  Nexus btw item searched for and the infraction under investigation o Reasonable suspicion for TLO to have cigs—common sense conclusion about human behavior which practical people are entitled to rely. pipe. bills.L. therefore. found cigs. TLO confessed on basis of evidence seized. is worried about never happened. Principle opened the purse.   o Not clear the urine tests will prevent impaired perception and judgment Majority quotes Brandeis: “For good or for ill. deterring drug use and violent crime (has become major problem). student privacy  Standard of reasonableness: Balancing the need to search against the invasion in which the search entails. reasonable search  evidence turned over to police  involvement of law enforcement does not mean it was for law enforcement purposes [Concurring: Powell]  Emphasis: Elementary/Secondary schools have less constitutional protections than adults and juveniles in a non-school setting.’s need for effective methods to deal w/ breaches of public order  Schools interest: maintaining order in the classroom. well-meaning but w/out understanding” New Jersey v. [our Government] teaches the whole people by its example”—actually mocking Gov. of the search (1) Was the action justified at its inception? (2) Was the search reasonably related in scope to the circumstances which justified the interference in the first place?  “Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. is unsuited for schools  Level of suspicion needed to justify search: reasonableness.’s word for the implications of the search. Officials acting alone Facts: Teacher found girls smoking in b-room. “The greatest dangers to liberty lurk in insidious encroachment by men of zeal. All the horrible things the gov. Brought TLO to principal’s private office. o Teachers and school administrators act in furtherance of publicly mandated educational and disciplinary policies of the State. and implicating dealing letters. not merely in loco parentis  cannot claim parents’ immunity o Agents of the state  School discipline v.O.  Warrant req. action when “the ends justifies the means” Franks: Cannot take the gov.  Only needs sufficient probability. not certainty o 2nd search for pot: rolling papers gave rise to reasonable suspicion. under all the circumstances. (2) Under reasonableness of the circumstances. Holding: (1) School officials need not obtain a warrant before searching a student who is under their authority.

o Schoolroom is the first opportunity to experience the power of government Board of Educ. History of drug use a school  Nature of the privacy interest: o Limited in a public school environment o Students are subjected to greater control than appropriate for adults. Acton: Court held suspicionless drug testing of athletes was constitutional. joined by Marshall]  Agree: schoolteachers/principals may conduct a search w/out warrant  “The Warrant Clause is something more than an exhortation to this Court to maximize social welfare as we see fit. in which “special needs” beyond law enforcement make the warrant/probable-cause req. not a protective search.—exigency o Exists in this case: teacher/principal could not protect students’ safety if req. [Concurring: Blackmun]  Court omits crucial step in analysis: only exceptional circumstances. v. dissenting in part: Stevens. dissenting in part: Brennan. o Students who participate in competitive extracurricular activities voluntarily subject themselves to same intrusions of privacy as athletes. therefore. Distinguish btw law enforcement and teacher/student: law enforcement are adversaries of criminal suspects. so how can you use reasonableness? [Concurring in part. for cert. Holding: The policy reasonably serves the School District’s important interest in detecting and preventing drug use among its students. impracticable. commonality of interests btw teachers and pupils. did not raise Q of whether the purse search violated 4th. it is constitutional.  Veronia v.’s concern and the efficacy of the Policy in meeting them o Nationwide drug epidemic Santiago 40 . therefore.  Franks: this was a full-scale search. to wait for warrant. all students who participate in competitive afterschool activities to submit to drug testing. must have special interest to justify exception to warrant req. o Application of exclusionary rule in crim pro arising from illegal school searches makes an important statement to young people that there’s consequences for violation of constitutional rights. It requires that the authorities must obtain a warrant before conducting a full-scale search. joined by Marshall and Brennan in I]  Court inappropriately reached out to decide a constitutional question—holding will permit school admins to search students suspected of violating the most trivial school regs. right. and is done behind a closed stall—“negligible intrusion” o Tests are kept confidential—“need to know basis” o Tests not turned over to law enforcement o Failed drug test  limited privilege of participation. Test does not detect medical conditions/authorized prescription meds.  Elementary/Secondary school setting = special needs [Concurring in part.  Disagree: disregard to probable-cause standard (textually supported! Unlike balancing) o Balancing test is flawed in its inception and execution o 2nd search was invalid—based solely on presence of cig papers. can the court use balancing of interests over Const.  Pet. (communal undress)  Character of the intrusion: o Manner of production: faculty monitor listens to pee sounds. 3rd failure  suspended from participation  Nature and immediacy of the Gov. pours into bottles. Testing is random and students must agree to be tested @ any time upon reasonable suspicion.”  Gov. fruits of illegal search should be excluded. only whether exclusionary rule applies to schools. Earls [2002] Suspicionless testing for drugs [Opinion: Thomas] Facts: Student Activities Drug Testing Policy req.

Task force created to implement Policy M-7 if met one or more of nine criteria. and Souter]  Veronia emphasized inc. The interest in using the threat of criminal sanctions to justify preg. Immediate objective of the searches: to generate evidence for law enforcement purposes—to reach goal of substance abuse treatment/getting preggers off drugs. houses. women from using coke cannot justify a departure from rule that nonconsensual search is unconstitutional w/out a warrant. which involved law enforcement notification and arrest. Nurse was racist. Gravity of threat cannot evade 4th prohibition against nonconsensual. If positive. began to order drug screens of urine samples from suspected maternity patients.  Here: non athletes drug use is “not major”  Rejects idea that student voluntarily subject themselves to testing—extracurrics are part of educational program. then referred to sub. [Concurring: Breyer]  Program counteracts peer pressure: gives students a reason to turn down drugs  Important that urinalysis was discussed @ public meetings  Objectors can refuse participation and not participate [Dissenting: Ginsburg. rather than proximate purpose  Sanctions use of law enforcement in the policy since the inception o Penal character [Dissenting: Scalia.’s test and the only reason to conduct the test is for law enforcement. Holding: A state hospital’s performance of a diagnostic test to obtain evidence of a patient’s criminal conduct for law enforcement purposes is an unreasonable search if patient has not consented to the procedure. key component in school life/applying for college. These tests were administered for police purposes to lock up these women. Joined by Chief and Tomas in part II]  Majority objects to reporting drug-test results to police—not a search  Taking of the urine sample could be regarded as a search (testing?) o 4th protects only “persons.  scope of administrative searches (draws the line).any search that is at its inception for law enforcement purposes is not allowed.    [Concurring: Kennedy]  Majority lacks foundation in special needs cases: o Usually turn on policy’s ultimate goal. but abandoned  Court has never protected material that a person hands over to 3rd party  Special-needs doc could validate what was done here Santiago 41 . and suspicionless searches. papers.  Schools educate the young about Constitutional freedoms Ferguson v. risk of sports related injury w/ athletes and athletes were “leaders” of drug culture. does not need “real and immediate interest” Policy is a reasonable means in preventing and deterring drug use. Joined by O’Connor. Stevens. Abuse commission for counseling/treatment. Charleston [2001] Uninformed searches [Opinion: Stevens] Facts: State Hospital staff worried about crack baby epidemic. o Specific drug use @ Tecumseh schools o Von Raab: can be done on a purely preventative basis. o Cannot justify ultimate purpose w/ immediate purpose o Evidence was taken for the specific purpose of incriminating patients—patients must be fully informed of constitutional rights to constitute waiver. warrantless. and effects”—urine isn’t effect. Franks: big deal in this case is lack of consent o Distinction btw a dr.

shows it is unconstitutional to strip search a 13 y-o.  School policy prohibits use. Search produced no pills. Holding: (1) Search of students bra/undies violates 4th bc there was no reason to suspect the drugs presented a danger or were concealed in her undies. found nothing. joined by Ginsburg]  Disagrees w/ grant of qualified immunity to school official. or sale on school grounds of any prescript/over-the-counter drug  Week before R was searched. possession. Assist. (2) Right was not clearly established.  Scope is permissible when not excessively intrusive in light of age/sex of the student and the nature of the infraction  Search is unreasonable o No indication of danger to students from the power of the drugs or their quantity! o No suspicion that R was carrying pills in undies  Franks: Nature of the Infraction  no emergency! [Concurring in part/Dissenting in part: Stevens. P sent R to nurses office. came into office. and shake. consented to search of her belongings. Redding [2009] [Opinion: Souter] Tests immediately have purpose of improving maternal/infant health Applies to enable searches by law enforcement officials who ordinarily have a law enforcement objective. [Concurring in the Judgment in part and dissenting in part: Thomas]  Search did not violate 4th o Court grants judges sweeping authority to second-guess school officials o Vague and amorphous standard  School had reasonable grounds to suspect R had drugs—Justified @ inception o Lunchtime deadline quickly approaching o Totality-of-circumstances justified search of R for pills  Reasonable in scope—4th grants leeway to school officials o Pills could have been hidden in undies—reasonable o Area is capable of concealing the object of the search o Reasonable to think Backpack was empty bc R was hiding pills in a place she thought no one would look  “Nature of the infraction”—test is unworkable bc school officials shouldn’t have to hault searches bc of possibility a court will later find the infraction was not severe enough to warrant an intrusive investigation Santiago 42 . Female Admin. another student told Principal about students bringing drugs/weapons on campus—students planned to take pills @ lunch that day  Principal’s suspicion justified search of R’s backpack and outer clothing o Search was not intrusive—private office  Strip search—not about who was looking and what was seen o Fact of pulling underwear w/ officials there violated subjective and reasonable societal expectations of personal privacy—needs further justification o Indignity of the search does not outlaw it—reasonableness depends on if the search is reasonably related in scope to the circumstances which justified the interference in the first place. so the official who ordered the unconstitutional search is entitled to qualified immunity from liability. pull her undies out.L.O. where she had to strip. Police involvement takes place after testing was conducted for independent reasons Facts: Principal received report R (13 y-o) was giving prescription-strength pills to other students and pulled R into his office. v. searched backpack w/ male principal. R denied everything. thinks T.o o o Safford Unified School Dist.

approach. btw seizure w/ fair notice and seizure effected by surprise o Border search less intrusive than random stop (depends on element of surprise) o Tests done @ night  Diff. looks for signs of impairment and does and open-view check. Other drivers could resume. Holding: State’s use of highway sobriety checkpoints does not violate 4th and 14th. Drunk driving is more of a public policy because its an imminent danger to public. Distinguish Sitz: no vehicle-bound threat to life/limb like a sobriety checkpoint. the program contravenes 4th.  Police need probable cause for a seizure to be reasonable o Balancing test only when a seizure is substantially less intrusive than a typical arrest o Agrees w/ majority’s use of balancing test—but opinion does not have the reason that the BT is used. 432. and narcoticsdetention dog walks around vehicle. drivers examined for signs of intox. Opinion gives no wait to citizen’s interest in freedom from suspicionless investigatory seizures o Permanent checkpoints are justified. advise driver. All vehicles would be stopped. No individualized stops. If driver failed. Holding: Because the primary purpose of the Indi narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing. btw discretion of officer after stop o Border search—check for ID—you have it or you don’t o Search for evidence of intox. is more subjective  Arrests could be made if law enforcement resources were put to conventional patrols  Drunk driving can be detected w/out checkpoints. joined by Brennan and Marshall in Parts I & II]  No relation btw sobriety checkpoints and a reduction in highway fatalities  Diff. arrest was made.  Dogs do not transform the seizure into a search o Sniff is much less intrusive than a typical search  Distinguish these checkpoints: primary purpose—detection of evidence of ordinary criminal wrongdoing o Not enough to be “general interest in crime control”   “[T]he gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose. [Dissenting: Brennan. Checkpoints Michigan Dep’t of State Police v. Search only done on consent or particularized suspicion. Joined by Marshall]  Court undervalues the nature of the intrusion and exaggerates the law enforcement need to use the roadblocks to prevent drunk driving. Edmond [2000] [Opinion: O’Connor] Facts: Checkpoints to interdict unlawful drugs—police stop a predetermined # of vehicles. when intox. unlike aliens riding in cars  III. Sitz [1990]**Only addresses initial stop [Opinion: Rehnquist] Facts: Advisory Committee established checkpoints @ selected sites along state roads.  4th seizure occurs when vehicle is stopped at checkpoint—question of reasonableness o Magnitude of drunk driving problem—state interest in eradicating it o Balanced w slight intrusion in motorist stop (objective)  Subjective: fear and surprise. take license/registration. but checkpoints follow guidelines  fixed systematic DUI stop and was random. bc seizure is minimally intrusive..” Pg. not suspicionless seizures o Sobriety checkpoints are elaborate publicity stunts to show law enforcement is taking law seriously. [Dissenting: Stevens. Immediate Santiago 43 .3. Sign in advance of checkpoint. police check license/registration and conduct sobriety tests. Indianapolis v.

it also checks licenses/registrations and looks for signs of impairment—2 important State interests  Subjective intrusion: short. Wasn’t random like Sitz. which is not part of a search  Automobile has a lower expectation of privacy—coupled w/ limited intrusion ≠ intrusiveness of body/home [Dissenting: Thomas]  Precedent shows roadblock seizures are permissible if conducted according to a plan that limits the discretion of the officers conducting the stops. high success rate o Only diff. Joined by Thomas and Scalia in Pt. Santiago 44 .    Primary purpose of program is indistinguishable from the general interest in crime control pretext to stop who ever they want. signs. I]  While stop’s primary purpose is to interdict illegal drugs. [Dissenting: Rehnquist. no immediate harm Franks: need individualized suspicion. from Sitz: dogs. They were looking for drugs in this case and purpose was to jail people *** would police have stop if they couldn’t arrest people? No.

and ask to come inside. Holding: When executing an arrest warrant. an offence defined by statute in DC (jail. Off. but Off. Robinson) Limited: weapons and evidence (1) Arrestee’s person (limitations on intrusiveness) (2) “Grabbing Area” (Immediate control) (3) In home: immediately adjoining spaces from which an attack can be branched Chimel v. or both to punish). o Includes suspect’s grabbing area of weapons or evidentiary items o “Within immediate control”  extigent circumstance  Incentive for police to wait until suspect goes home to arrest him  search the house  P. C comes home after 15 mins. Robinson [1973]***Concern of the Court: CRIME AND PUNISHMENT [Opinion: Rehnquist] SILAregardless of offense Facts: Off. Holding: In the case of a lawful custodial arrest. Off. (2) Officer Safety United States v. conduct search “on the basis of the lawful arrest (no search warrant issued). Joined by Douglas and Brennan]  Opinion allows police off. C objects. opened it. it is reasonable for the arresting officer to search the person arrested to remove any weapons he might seek to use to resist arrest or effect escape. Search Incident to Arrest (SILA) Full custodial arrests (Chimel. a full search of the person is an exception to the warrant req. of 4th and is reasonable. Off. search must be limited to suspect’s person and grabbing area for either a weapon or evidence against him. finding something in jacket pocket. based on previous investigation determined there was reason to believe R was operating car w/ revocation of operator’s permit. knock.  SILA not held to stricter Terry standards  Justification for SILA: (1) Disarm before custody.Chapter 7: The Forth Amendment in Context    A. case-by-case adjudication of probability of suspect having weapons/evidence  Did not feel like weapon  Pulled over for suspended license and searches and finds drugs in crumbled cig case.  Search incident to arrest principle: when an arrest is made. Rule. searched entire house for 45-60 mins. 443  Justification: (1) Protection of evidence. found heroin. Santiago 45 . The only evidence in this case would be a valid license. Off. pulled it would to identify it: crumpled up cigarette package. fine. California [1969] SILA of home [Opinion: Stewart] Facts: Off. go to C’s home w/ warrant authorizing C’s arrest.lawful arrest allows you to search the fullbody of the a person being arrested (bright-line rule) [Dissenting: Marshall. ask to around. observed R driving car. Persons   Searches of homes are different than searches of businesses Searches of individuals are different than searches of homes Searches of cars are different from searches of other effects 1.. pulled car over and searched J w/ a patdown. identify to wife. (2) Preserve evidence (extigent circumstance)  Degree of SILA does not depend on the nature of the offense  Lawful arrest  authority to search  full search is reasonable o Does not req. lacking PC to obtain a warrant to use a traffic arrest as pretext to conduct a search.

Illinois v. L had to empty pockets—cigarette package had amphetamine pills. inventory procedures. justification factors: o Gov.  Court is not in the position to second-guess police department o “less intrusive” means not relevant to reasonableness Santiago 46 . to search any container or article in his possession. as part of the routine procedure incident to incarcerating an arrested person. to stop-and-frisk anyone on the street.  Must be routine/standardized procedure at police station  This case does rest on PC—absence of warrant is immaterial to reasonableness o Inventory search is an exception to the warrant requirement  Search of the person of an arrestee @ police station has diff.  o Need case-by-case adjudication to determine whether search was conducted for legitimate reasons Rule is too rigid under 4th Must be a reasonable relation btw the arrest and search—no reason to think a traffic violated is armed o Terry did not allow off. in accordance w/ est. only when he believes it is an armed and dangerous individual. Lafayette [1983] Inventory Search [Opinion: Burger] Facts: L arrested for disturbing the peace. Holding: It is not “unreasonable” for police. Later @ police station. interest in stationhouse search is higher—more leniency for officers @ station o May disrobe before confining o Inventory process—deters false claims of theft o Risk of injury to arrested persons—confiscate dangerous instrumentalities o Police fear is irrelevant o Way of verifying identity.

B. and 2 men fled an Oldsmobile. Off. informant called police and said O drove the car during crime and was getting ready to leave town. E was captured shortly after inside his home. pulled over car. went to W’s home w/out warrant. Holding. murder weapon. Inside the Oldsmobile. police found $.  Burden is on Gov.  an overnight guest has the same expectation of the home-owner. and title w O’s name. not left alone. Witness called police. Search of apartment revealed residue and baggies.  No threat to pub. who inspected car. safety bc W was home. Houses Welsh v. Holding: Overnight guest in a home has a reasonable expectation of privacy in the home that society is prepared to recognize as reasonable. to ground level apartment where drug bagging operation was visible behind gap in the blinds. went to his home.  Invasion of the home is a chief evil that 4th is directed against—search/seizure of home w/out warrant are presumptively unreasonable. and arrested 2 men. at home. 2nd man escaped. Carter [1998] Temporary guests for commercial transactions [Opinion: Rehnquist] Facts: Confidential informant directed Off. permission to do business  4th: protection to people in “their” houses—one who is merely present w/ consent of householder may not claim protection of 4th.non-criminal offense. Appeal of license revocation. not an exclusionary rule case. When men left. gained entry from stepdaughter. o Rs have standing  Respondents were there for a business transaction o No previous relationship w/ owner o Not overnight guests o Cannot claim protection as workplace (no significant connection) o Purely commercial Santiago 47 .  Not sufficient exigency bc of destruction of evidence (BAC)  Franks: Exigent circumstances depend on the gravity of the situation. Police went inside house w/out permission and w/ weapons drawn and found O in closet. traffic offense  Not “hot pursuit” bc there was no immediate/continuous pursuit of W from the scene of a crime. Olson [1990] Overnight guests [Opinion: White] Facts: Robbery/murder. Men had never been to the apt. Next day. Wisconsin [1984] [Opinion: Brennan] Facts: W drove car off the road and left the scene. Absent exigent circumstances. no public threat Minnesota v. before and were there for 2 ½ hours. observed gun. W taken to police station were he refused breath-analysis test. Police suspected Ecker. Police obtained a “probable cause arrest bulletin” for O’s arrest—directed to stay away from O’s duplex. Unclear still if only has the intent   to stay they get the same protection. Holding: There is no legitimate expectation of privacy for defendants “simply permitted on the premises” for a purely commercial transaction for a short period of time w/out a personal relationship to the homeowner. and arrested W in bed. a warrantless. nighttime entry into a suspect’s home to arrest him for a civil traffic offense is prohibited by protection of the home in 4th.  Business < home  Permission to stay v. no rights of exclusion Assumption of risk cases Minnesota v. to demonstrate exigent circumstances to overcome presumption of unreasonableness o Nature of the underlying offense: noncriminal. Doesn’t have a key.

Joined by Stevens and Souter]  Court’s decision undermines the security of short-term guests. Did not decide if it was a search bc there was no expectation to privacy o B thinks there was a search. however.. and effects. [Dissenting: Ginsburg. o Off. and the resident’s security of the home o When a homeowner invites a guest. house. was standing in a public place where may people passed by—not an unreasonable search o If you live in a basement apt. you should understand the need for care to keep out unwanted eyes. [Concurring: Kennedy]  Respondents had no connection w/ home [Concurring in the judgment: Breyer]  Respondents can claim 4th protection in home.  Must actually live there—not an apartment used to package cocaine  Katz test (subjective expectations of privacy that society is prepared to recognize as reasonable) turned into what Court considers reasonable o Self-indulgent test cannot be used to determine whether a search/seizure has occurred bc IT IS NOT IN TEXT OF 4TH. guest should share host’s shelter against unreasonable searches/seizures. officer’s observation from outside home did not violate 4th rights.  Limited to those chosen to share privacy of home/company w/ guest…not milkman/delivery boy o There is a subjective expectation to privacy that society is prepared to recognize as reasonable Santiago 48 . Joined by Thomas]  Threshold question: whether a search/seizure covered by 4th has occurred o Does not require “legitimate expectation of privacy” to be applied first o “their…houses”—each person has right to be secure against unreasonable searches/seizures in his own person. issue was to whom [Concurring: Scalia. papers.

Knotts [1983] Tracking device on car [Opinion: Rehnquist] Facts: Off. eyes. o 4th does not prohibit augmenting the senses w/ technology—what about Katz?? Kyllo v. Holding: Beeper tracking device attached to a car to follow movement does not invade any legitimate expectation to privacy. th Amend. not K [Concurring in the Judgment: Stevens. which showed some areas were warmer than others.  4th protection not tied to sharing “intimate details”—does not matter about the quality/quantity of information obtained.  Area is a home—privacy expectations are most heightened—constitutes a search o Katz test: expectation to privacy exists in the home and is acknowledged to be reasonable. used thermal imaging device aimed @ private home from a public street to detect infrared radiation to check for heat lamps to grow pot. Technology and the Home United States v.  Person traveling in car on public roads has no reasonable expectation to privacy. at least where the technology is not in general public use. the surveillance is a “search” and is presumptively unreasonable w/out a warrant. o Limiting prohibition of thermal imaging to “intimate details” would be impractical—do not know in advance what details would be detected. uses a device that is not in general public use to explore details of the home that would previously have been unknowable w/out physical intrusion. Joined by Chief. United States [2001] Thermal Imaging Devices [Opinion: Scalia] Facts: Off.  Visual surveillance from public places would have revealed the route/K’s premises o 4th does not prohibit augmenting the sensory faculties as science/tech. Off. O’Connor. Not a valid statement. draws “a firm line @ the entrance to the house. and Kennedy]  Through-the-wall surveillance—gives observer or listener direct access to info in a private area  Off-the-wall surveillance—indirect deductions from observation of the exterior of the home o Infrared camera passively measured emitted heat. Homeowner should not be left @ mercy of advancing technology.  No distinction btw “off-the-wall” observations and “through-the-wall” surveillance. o Not a 4th search/seizure [Concurring in the Judgment: Brennan. o All details of the home are intimate bc the entire area is safe from prying Gov. Holding: Where Gov. o Beeper has limited use—ascertaining the ultimate resting place of chloroform (did not track inside home)  Katz: beeper did not invade any legitimate expectation of privacy bc it was a car on a public road. followed car and found location. o Dissent’s argument that imager did not get info about interior of the home is inaccurate—imager reveals heat of various rooms inside the home. suspected K of manufacturing illicit drugs and installed a beeper on a container. It was not information that could not have been observed. secured a search warrant and found a meth lab.3. Joined by Marshall]  Confusion of 4th standing—container sold to compatriot. o Using sense-enhancing technology to get info not otherwise available w/out physical intrusion constitutes a search. Joined by Brennan and Marshall]  Reasonable for police to use information received over the airwaves  Does not join court bc opinion contains 2 unnecessary dicta: o “Open fileds” doctrine—drum was outside the cabin in public display. permits. Santiago 49 .”  The 4  Franks: As soon as in common use  holding does not apply [Dissenting: Stevens. Off.

Franks: it is an inference. Pineda-Moreno [9th Cir. 2010] Dissenting from the denial of rehearing in banc Facts: Police went onto P’s property during the night and put a GPS on his car. o Equipment did not penetrate walls or obtain info regarding the interior of the home o Officer conduct did not amount to a search and was perfectly reasonable. which is discernable in the public domain. o If Katz device only disclosed the volume of the sound leaving the booth. Here. so it is not a search United States v. only disclosed heat radiating from the house.” Pg.   o Public could observe from melting snow or rain evaporation. Police should not have to avert their senses o Party interest is minimal—people should insulated homes to keep heat in Distinguish from Katz: device in Katz allowed officers to intrude bc device gave access to info inside the private area. 531 Constitutional protection should be provided to rich/poor—cannot penalize those w/out $ for gate 24-hour surveillance Santiago 50 .  Curtilage has the same protection as the home itself  Just bc people can enter property does not mean we openly invite police to snoop    “To say that the police may do on your property what urchins might do spells the end of 4th protections for most people’s curtilage.

 Sanders: heightened privacy expectation in personal luggage…presence of luggage in an automobile does not diminish the owner’s expectation to privacy in personal items. California v.C. 4th reasonableness does not depend on warrant. o Police could have arrested A as he left Daza’s house bc of PC—search bag pursuant to the arrest. o Scope is defined by places in which there is PC for container to be found o Here: Police had PC to believe bag in trunk had pot—warrantless search of bag OK  Overrules Sanders! [Concurring in the Judgment: Scalia]  4th does not require a warrant for searches/seizures.  Closed container is not part of “automobile” exception to the general warrant requirement. enough to have PC to believe vehicle has evidence of crime. rather prohibits unreasonable searches/seizures. got info about pot package from a DEA officer. and found pot. [Dissenting: Stevens. Joined by Marshall and White]  Absent exceptional circumstances. and found pot. watched Daza claim package and bring it home.  Carroll: impracticable to secure a warrant bc the vehicle can quickly move out of locality or jurisdiction.. o In Ross you don’t need warrant. searched the backpack. o Warrants: limitation upon their issuance. is outweighed by individual interest in privacy that is protected by advance judicial approval. in Sanders you do  Here: like Ross.  Anomalous to prohibit the search of a briefcase while owner is carrying it on public street. the automobile exception to Warrant Clause. opened the trunk.  Ross: held a warrantless search of an automobile under Carroll could include a search of a container or package found inside the car when the search was supported by PC. Holding: The police may search and automobile and the containers w/in it where they have probable cause to believe contraband or evidence is contained. decision to invade individual’s privacy should be made by a neutral magistrate. Off. but to allow it once placed inside trunk of car. came out w/ backpack…police stopped him when he drove off. Wyoming v.. rather than agent of the Executive.  Burden of warrant req. means of insulating officials form personal liability. Houghton [1999] Searching passengers’ belongings [Opinion: Scalia] Santiago 51 . Goods concealed and illegally transported in a vehicle may be searched for w/out a warrant. and put it in his trunk. but bc there is PC to believe the container has contraband and in fact does have contraband. stopped him. got brown bag. Less private/protected than homes o Mobility (Exigency) o Regulated (Reduced expectation of Privacy) Chadwick: person has a higher expectation of privacy w/ luggage and personal effects than he does w/ an automobile. Acevedo [1991] Container search of automobile [Opinion: Blackmun] Facts: Off. Automobiles    Carroll: est. if there is PC police can seize and detain briefcase and wait for judicial approval to search. o In either location. St. A went to apt. rather than a requirement of their use. George went to apt. police had PC to believe drugs were in bag in trunk  Clear-cut rule: Police may search w/out warrant if search is supported by PC. got a search warrant. Off.

didn’t apply. found drug paraphernalia.Facts: Off. only containers w/in automobiles.  Common enterprise w/ driver (Pringle). Off. syringe.  State interest in effective law enforcement does not outweigh privacy concerns Santiago 52 . stopped car w/ 3 people inside and found pouch/wallet-type container inside passenger’s purse. same interest in concealing fruits or evidence of wrongdoing  Criminal could hide contraband in passenger’s belongings. to search passenger’s belongings o Reduced expectation of privacy for both passenger and drivers for property transported in cars o Governmental interests are substantial: effective law enforcement would be impaired w/out ability to search a passenger’s belonging. Holding: Police officers w/ PC to search a car may inspect a passengers’ belongings found in the car that are capable of concealing the object of the search. not persons found w/in automobile.  Purse was separate from person. so it does not have protection. D was operator of the vehicle and in custody of the object of the search.  Officers had PC to believe there were illegal drugs in the car  No distinction among packages or containers based on ownership (Ross) o PC to search for contra in car  no need for individualized PC for each package  Balancing of interests allows Off. and drugs inside. o Intrusion in these items just as serious as Di Re. Joined by Souter and Ginsburg]  In all prior automobile exception cases. [Concurring: Breyer]  Limitations of the rule: only automobiles. [Dissenting: Stevens. o Di Re: passenger D—held the exception to the warrant req.  Courts rule makes distinction btw property in clothing worn by passenger and property contained in passenger’s briefcase or purse.

finding a handgun. an officer may search the vehicle incident to the arrest. makes a lawful custodial arrest of an occupant of an automobile. In a PC search. 4th allows officer to search passenger compartment of the vehicle as a contemporaneous incident of arrest. o Danger to officer flows from the fact of the arrest. [Concurring in the Judgment: Scalia. The risk of grabbing a weapon was remote. T agreed to a patdown and officer found pot and crack. Gant [2009]**Plurality opinion [Opinion: Stevens] Facts: G was arrested for driving w/ a suspended license and locked into back of a police car. [Concurring: O’Connor]  Police wrongly treat the search of a vehicle incident to arrest as an entitlement. o Does not hinge on whether arrestee is inside car or exited the car—both are highly volatile situations. arrested T.  Majority does not saw how recent is recent. United States [2004] [Opinion: Rehnquist] Facts: Off. he was handcuffed and secured in the back of a squad care.  Would limit Belton searches to cases where it is reasonable to believe evidence relevant to the crime of the arrest might be found in the vehicle. [Dissing: Stevens. placed him in back seat of patrol car. rather than an exception. Searches Incident to Arrest  Different search an Probable Cause automobile search (Acevedo. pulled over T for having the wrong license tags. Houghton)—In a SILA automobile search. but a return to the broader search incident to arrest. and searched T’s car. Santiago 53 . Holding: When arrestee is the “recent occupant” of a vehicle. o Belton is not an application of Chimel.3.  Nothing irrational about broader police authority to search for evidence when/where the perpetrator of a crime is lawfully arrested. Police searched car/pocket of a jacket in the backseat and found coke. Off. how close is close—unworkable rule Arizona v. Holding: Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is w/in reaching distance of the passenger compartment @ the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Thornton v. you were caught w a syringe and the cops have reason to believe there is more evidence w/in the car. so he dissents. o This case: reasonable for the officer to believe there might be evidence related to the drug offense w/in the vehicle.  Once officer determines there is PC to make arrest—reasonable to allow officer to ensure his safety and to preserve evidence by searching the entire passenger compartment.  Belton: held that when a police off.  Every 4th case begins w/ the reasonableness of a warrantless search: o Rejects Belton and applies Chimel—police may search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and w/in reaching distance of the passenger compartment @ time of the search. the cops see you put a container in your car and have PC to search it. Joined by Ginsburg]  T was neither in nor anywhere near the passenger compartment of car. o Arrest distinguishes the arrestee from society at large—distinguishes his crime from general rummaging. Joined by Souter]  Like a Chimel search bc he is a pedestrian at the moment and not a driver—police may search the area in the arrestee’s immediate control where he might reach to grab a weapon or destroy evidentiary item.

officer may justify SILA when it is reasonable to believe evidence relevant to the crime of the arrest might be found in the vehicle. found no previous violations. it has to fit w/in these criteria. Cop ordered driver to put vehicle in park. and undermines Chimel.’s conduct deviated materially from usual police practices. arrested the boys. Alito.  Here: traffic violation. Santiago 54 . You are not able to just search the car. cops to inform detainees that they are free to go before consent to search is deemed voluntary. or of another crime the officer has PC to believe occurred. in plainclothes were patrolling “high crime area” in unmarked car.  Applying the Chimel standard fails to provide officers w/ guidance and leaves room for manipulation. police have less intrusive/more effective ways to enforce safety. United States [1996] [Opinion: Scalia] Facts: Off. Robinette [1996] [Opinion: Rehnquist] Facts: R going 69 in a 45. o [Concurring: Scalia]  During a roadside stop. Off. so that a reasonable officer in the same circumstances would not have made the stops for the given reasons.  Court should adopt a rule that a vehicle search incident to arrest is reasonable only when the object of the search is evidence of the crime for which the arrest was made. o Search was unreasonable: police could not expect to find evidence of crime in car. o Officer’s subjective motive does not invalidate objectively justifiable behavior under 4th.  Stop was based on PC—no need to do balancing analysis o Detaining a motorist is reasonable if PC exists to believe that a traffic violation occurred. Cop asked for consent to search car. Does not make sense under Robinson (justifies SILA exception to 4th) Whren v. confuse officers and judges. not when the person is arrested and in the back of a squad care. but that the cop used it as pretext for search. The sped off.  W’s proposed standard: whether the Off.  Would follow Belton  Franks: This case is a limitation on the automobile exception bc things have gotten out of hand. cop pulled him over and asked for license. Boys argue cop had PC to believe traffic code violations occurred.  Cop had PC to stop R for speeding  Bustamonte: rejected a per se rule—knowledge of the right to refuse consent is not required. the evidence will be admissible. [Dissenting: Breyer]  Would like a better rule. R authorized and cop found pot. Possibly overruling Belton (applied Chimel to a car) Attempt to pull back a bit.  Risk of pulling a car over is @ the high at the initial confrontation. Holding: Cops are not required to tell a seized person he is “free to go” for his consent to search to be deemed voluntary. and saw two bags of crack in W’s hands. Kennedy. Joined by Chief. passed car w/ youths that stopped @ stop sign for 20 secs.  Apply Thornton: in vehicle context. G could not have accessed his car @ time of search. and retrieved other illegal drugs from the vehicle.  Just bc traffic law is expansive or commonly violated does not mean it is no longer part of law enforcement Ohio v. nothing in car would have been relevant evidence. cause the suppression of evidence gathered in cases carried out in good-faith reliance on well-settled case law. Holding: Where cop makes an objectively reasonable stop and there is evidence in plain view. but agrees w/ dissent [Dissenting. and Breyer except II-E]  Rule will endanger arresting officers.  Unrealistic to req.

o However. and arrested C. found pot. encounter becomes more adversarial and longer  Even if drug sniff is not a 4th “search.” it broadens the scope fo the traffic-violation-related seizure. relied on the federal constitution.  Off.  State is free to impose greater restrictions on police activity than the Court holds necessary under Const. Ct. Const. conduct that does not compromise any legitimate interest in privacy is not a search subject to 4th. w/out more. to complete that mission. Dog alerted @ the trunk. does NOT req. Holding: A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate 4th.  Lawfuls seizure @ inception can violate 4th if its manner of execution unreasonable infringes interests protected by Const. dog sniff does not  Franks: Checkpoint + Dog = not okay (Edmond). Entire stop lasted 10 mins. o Ticket issuing can become unlawful if prolonged beyond the reasonable time req. o LIMITING PRINCIPLE: Individualized suspicion [Dissenting: Souter]  Would hold that using the dog to determine the presence of pot in trunk was a search unauthorized as an incident of the speeding stop and unjustified on any other ground. Traffic point + Dog = Okay. Joined by Souter]  Scope: seizure was unwarranted/nonconsensual expansion of the seizure for a routine traffic stop to a drug investigation. [Dissenting: Stevens]  Would uphold OH judgment bc @ the time consent was given. Santiago 55 . conduct that only reveals possession of contraband does not compromise a legitimate privacy interest  not a search o Dog sniff was sufficiently reliable to est. narcotics officer came and walked dog around car. It cannot be a per se rule. o By using dog. [Dissenting: Ginsburg. not bomb sniffing [Opinion: Stevens] Facts: C stopped for speeding. o Cites Terry: investigation must be reasonably related in scope to the circumstances which justified the inference in the first place. officers searched the trunk. o Possessing contraband is not legitimate  Gov. PC to conduct full-blown trunk search  Distinguish Kyllo: thermal imager could detect lawful activity. justify suspicionless 4th intrusions (Edmond)  Franks: Problem—court says it was not a search. Caballes [2005]**Only drug sniffing dog. but the OH Sup. Valid consent = voluntariness (Determined by a totality-of-the-circumstances) [Concurring: Ginsburg]  Common for OH cops to use a traffic stop as a prelude to an automobile search for drugs. it was the product of an unlawful detention.  Dogs are not infallible…Place (held sniff test was not a search) should be reexamined o Dogs can be used to justify a further/complete search of an enclosed area—1st step in a process that may disclose “intimate details”  Enforcing criminal laws does not. officers to tell detained motorists they’re “free to go”  Seizure of a person: reasonable person would have believed that he was not free to leave: o Reasonable motorist in R’s shoes would have believed he had obligation to answer the “one question”/”before you get gone”  Reasonable person: would think investigative stop had not concluded bc cop continued to ask questions. which does not require first-tell-ten-ask.. Illinois v.

 Police can continue investigation of the suspected criminal activities of a D and his partners.  Franks: police were adjudicating. even though the D has been indicted. Attaches when a suspect is subjected to custodial interrogation. o Rule must apply inside/outside police station. but officers did not allow.  Confessions must be examined w careful scrutiny  Court uses totality-of-the-circumstances test to see if his will was overborne: foreign. Interpreted as a privilege against compelled self-incrimination. pled not guilty. S surrendered to authorities.  M was denied the basic protections of 6th when his incriminating words were used against him in trial. S called close friend to tell about incident and confessed. o However. which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel. Spano v. not investigating.  Police were concerned w securing a statement. D’s incriminating statements. no history. is inadmissible at the D’s state criminal trial. M contends his 5th and 6th rights were violated by the use of evidence against him of incriminating statements which gov. when he was entitled to a lawyer’s help. Friend came into question S and said he was in trouble bc S lied. attorney cautioned S not to answer questions. short education. and use of friend to solicit answers. obtained a lawyer. cops put a listening device in friends’ car and listened to a convo incriminating M. cannot constitutionally be used by the prosecution as evidence against him @ trial.Chapter 8: Police Questioning     A person is denied Due Process of Law if an involuntary statement is used against her at a criminal trial. 8 hours long. emotionally instable. nonbusiness hours. Holding: 6th attaches @ indictment and forbids agents from deliberately eliciting statements from D in the absence of counsel. United States [1964] [Opinion: Stewart] Facts: P was indicted. fatigue and sympathy falsely aroused in a post-indictment setting. claims.  Emphasis: police were not questioning in relation to an unsolved crime. S asked for attorney. Holding: Under 14th. not solving a crime. and S refused to answer. o Voluntariness is determined based on the totality-of-the-circumstances. 5th and 14th Amend. [Concurring: Douglas. o Our system: indictment  arraignment  trial  Accused has a right to lawyer’s held @ every stage Massiah v. agents deliberately elicited after indictment and w/out counsel. New York [1959]**Indicted for murder when S confessed [Opinion: Warren] Facts: Warrant issued for S’s arrest in relation to a murder. This expands from DP to 6th Amend. Joined by Black and Brennan]  Important: accused was scheduled to be tried by judge/jury was instead tried in a preliminary way by the police. S was under indictment for first degree murder. S gave statement and took S to bridge where he ditched murder weapon. Rule: a statement obtained involuntarily from a suspect. confession may not be upheld when suspect’s will was overborne by official pressure. obtained by feds under these circumstances.  Spano: Concurrence said that the police deliberately elicited the confession after D had been indicted. by a law enforcement agent. and was released on bail. Police made their own kangaroo court and denied S counsel before trial. After release. [Concurring: Stewart]  Absence of counsel alone is enough to render it inadmissible under 14th. Santiago 56 .

Joined by Clark and Stewart]  Court is headed toward barring all admissions from an individual suspected of a crime. it ceased to be a general investigation of an unsolved crime. Of an unsolved murder. the Assistance of Counsel applies (shift from investigatory to accusatory—adversary begins to operate). police to give Constitutional “advice” under circumstances like these. Escobedo v. E had already been charged w murder  Law enforcement cannot depend on the confession.  Rule is unworkable—Duty of counsel everywhere you go??  E’s lawyer had advised him not to answer previously—knew he didn’t have to  Law enforcement will not be destroyed. E confronted accomplice and said “I didn’t shoot Manuel. M assumed the risk  Old rule gives ample protection: confessions may not be introduced unless they are voluntary. you did it. Joined by Clark and Harlan]  M was not prevented from consulting w/ counsel as often as he wished.  When E requested and was denied opportunity to consult w lawyer. [Dissenting: White. and was released.[Dissenting: White. E was the accused.” Holding: When an investigation is no longer a general inquiry into an unsolved crime but begins to focus on a particular suspect. [Dissenting: Stewart]  Case does not involve the deliberate interrogation of a D after the initiation of judicial proceedings against him o This was a voluntary confession given during legit invest.  M was not in custody. there was no coercion. didn’t speak. o System should not depend on citizens being unaware of their constitutional rights  Franks: Custody but not formally charged: o Does not matter that it’s pre-indictment o Once cops focus on an individual—6th Amend.  Just bc M had right to counsel’s aid does not mean out-of-court convos must be excluded. E was arrested. but more difficult.  Under IL law. lawyer made attempts to contact him. Santiago 57 . o Court has never req. told by cop that there was a good case against him and he might as well confess. Weeks later.  E was not informed of his absolute right to remain silent and cops urged him to make statement. admission of complicity in a murder plot = admission of firing fatal shots o E was unaware—guiding hand of counsel was essential o @ time. accomplice told police E fired fatal shots. whether voluntary or not. but should depend on extrinsic evidence secured through skillful investigation. rights [Dissenting: Harlan]  Rule interferes w legit methods of criminal law enforcement. so he made a statement under the assurance. Illinois [1964]**Interrogation before indictment [Opinion: Goldburg] Facts: E arrested w/out warrant. E was told he could go home if he pinned it on accomplice. interrogated. E replied that he wanted a lawyer.

Holding: When an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning. he has the right to the presence of an attorney. o Congress and states can find ways to protect rights/promote enforcement of criminal laws  Court will not assess whether D was aware of rights before warning was given  Failure to ask for a lawyer does not constitute a waiver  Does not mean there must be a “station house lawyer” present @ all times  Evidence that accused was threatened. either retained or appointed  D may waive affection of these rights—voluntarily. o What the court meant by “focusing on the accused” in Escobedo. knowingly.  Constitution does not necessarily req. or cajoled into a waiver will show the D did not voluntarily waive his privilege. in 6th which has no bearing on police interrogation. Rule derives from lang. o 5th does not forbid all pressure to incriminate one’s self  Policy: rules impair and frustrate important instrument of law enforcement—will decrease confessions [Dissenting. that anything he say can be used against him in a court of law.” [Dissenting: Clark]  Police manuals are not universally used  Brutality is rare exception  Majority goes too far too fast—lack of knowledge of practical operation of reqs. liberty and weakness—invokes false confessions o Environment created to put suspect @ will of examiner o Compels individuals to incriminate themselves th is available outside criminal court proceedings and protects persons in all settings where freedom of  5 action is curtailed. Joined by Stewart and White]  New rules do not guard against police brutality or other forms of coercion. Joined by Harlan and Stewart]  Wants ToTC test and that incriminating statements can be made voluntarily Santiago 58 . He must be warned of right to remain silent. adherence to any particular solution.  The prosecution may not use statements. resulting in self-incriminating statements w/out full warnings of constitutional rights.  “Prophylactic” in nature. serves the 5th but sweeps more broadly than 5th itself. tricked. procedural safeguards must be employed to protect the privilege against self-incrimination. You can violate Miranda w/out violating 5th…not all statements obtained in violation of Miranda are “compelled. stemming from custodial interrogation of the D unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.  Custodial interrogation: questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. and if he cannot afford one.  Would follow DPC of 5th and 14th [Dissenting: Harlan.  Custodial interrogation takes a heavy toll on indiv.  Not in 5th—does not apply to police station.Miranda v.  Procedural safeguards: prior to questioning. Arizona [1966] [Opinion: Warren] Facts: Ds were held incommunicado in a police-dominated atmosphere. and intelligently  If D indicates @ any point he wants to consult w/ attorney before speaking—no questioning o Fact that D answers some questions does not deprive right to refrain from answering further inquiries until he consults w attorney. person must be warned: (1) he has the right to remain silent (2) any statement he does make may be used as evidence against him (3) he has a right to the presence of an attorney. one will be appointed. whether exculpatory or inculpatory. White. rather discourage confessions.

require transcripts of the interr to see if coercion took place When confessions are corroborated with physical evidence they are the most reliable means of convicting a criminal with certainty Last.     Under new rule. a criminal can voluntarily make incriminating statements that will be invalid because the officer did not read the criminal his Miranda rights Majority makes false assumption compulsion is inherent in custodial surroundings & no statement made while in custody can be the product of free choice unless the protective devices (warnings) as described by the court are used Could prevent coercion in other ways – time limits for interrs. this rule may make it more difficult for suspects to exonerate themselves Franks: all four Ds were convicted on remand…not necessarily letting the person go.  5th and 6th are meaningless if we aren’t informed Santiago 59 . having independent observers present.

just wanted him to think. Lawyer was not allowed to go in police car.  Judicial proceedings had started before car ride—warrant. Attaches when the adversarial judicial criminal proceedings commence—when a suspect is arraigned or indicted. w/out notice to or consultation w counsel. petitioner did not prove W on his own initiative confessed to the crime. the accused shall enjoy the right to…the Assistance of Counsel for his defence” Violated if the Gov. he has a right to legal representation when the government interrogates him. deliberately elicits statements from a suspect in the absence of her counsel or valid waiver of the right. it will be bc detective intentionally denied W his rights and risked conviction. NY. A. o W was entitled to assistance of counsel guaranteed by 6th and 14th  Waiver: State must prove an intentional relinquishment or abandonment of a known right or privilege o Not just comprehension. “Deliberately Elicited” Brewer v.Chapter 9: The Right to Counsel     “In all criminal prosecutions. so he repeatedly instructed cops not to question suspect. W showed police where body was. Detective continued to elicit incriminating statements  Body may be admissible on the theory that it would have been found anyways w/out incriminating statements. Williams [1977] [Opinion: Stewart] Facts: Cops arrested former mental patient for murder.  Officer knowingly isolated W from lawyers to persuade him to give incriminating evidence—not good police practice. arraignment. [Concurring: Stevens]  State cannot dishonor its promise to the lawyer if we are concerned about individual’s effective representation by counsel. [Dissenting: Burger]  W waived his 5th right to silence/6th to counsel—can do so w/out attny present  Cop prompted confession by a statement. Cop gave “Christian burial speech” and told suspect he didn’t want an answer.  Franks: Right to counsel has attached @ this point and D did not waive his right. However. not an interrogation  Irrationality of applying exclusionary rule to this case: o Williams’ disclosures were voluntary  Had abundant knowledge of right to counsel/silence o Exclusionary rule should not be applied to non-egregious (knowingly bad) police conduct Santiago 60 .” Spano v. committed to confinement in jail  Detective deliberately elicited information from W  Massiah applies: once adversary proceedings have commenced against an individual. [Concurring: Powell]  Right to assistance of counsel may be waived after it has attached. Holding: Right to counsel under 6th and 14th means a person is entitled to a lawyer’s help @ or after the time judicial proceedings are initiated against him. He was arraigned before a judge after turning himself in. [Concurring: Marshall]  Good police work is different from catching the criminal @ any price. but relinquishment o Despite W’s assertions of his right to counsel. o “in the end life and liberty can be as much endangered from illegal methods used to convict those though to be criminals as from the actual criminals themselves.  If W goes free.

” Holding: A defendant’s volunteered statements to a jailhouse informant who was placed in close proximity but made no effort to stimulate conversations about the crime charged are admissible. Joined by Blackmun and Rehnquist]  Question is about waiver—W knew of his right not to say anything w/out counsel and relinquished right when the car approached the place where he hid victim’s clothes. [Dissenting: White. Wilson [1986] [Opinion: Powell Pts. the deliberate-elicitation standard requires consideration of the entire course of Gov. IV. took action beyond merely listening.  Informant did not ask questions. V] Facts: W arraigned and placed in cell w inmate who agreed to act as a police informant. [Dissenting: Brennan. must show police and inform.  Thinks it is an abuse of habeas. behavior  State intentionally created situation. and was knowing/intentional.  Majority rests on fact that W “asserted” right to counsel. [Dissenting: Blackmun. not coercive.  Massiah and Spano: once 6th right to counsel attaches. Informant was told not to ask questions. o D does not make out violation of right by showing an informant reported his incrim. that was designed deliberately to elicit incriminating remarks. 6th is to safeguard fairness of trial and uphold integrity of the factfinding process. statements to police. Joined by Marshall]  6th guarantees an accused after the initiation of formal charges the right to rely on counsel as the medium btw him and the State o State knowingly circumvented D’s right to counsel by deliberately eliciting inculpatory admissions o Accused was incarcerated and susceptible to the ploys of undercover Gov. the accused knew of right and intended to relinquish. then relinquished w/out counsel o Waiver is not a formalistic concept—shown when facts est. Joined by White and Rehnquist]  Rule is far too broad—when there is no interrogation. decision to talk was not the product of an overborne will. I. only listened [Concurring: Burger]  Vast difference btw placing and ear in a suspect’s cell and placing a voice in the cell to encourage convo for the ear to record. W made incriminating statements that informant reported to police. agents o Although informant was not the immediate cause of W’s admission. Kuhlmann v. he is denied that right when federal agents “deliberately elicit” incriminating statements from him in the absence of his lawyer. Rather. o Exercise of his own free will o Even if influenced by speech. but to “keep his ears open. Santiago 61 . statements should be admissible as long as they are truly voluntary.

“Commencement of Adversarial Proceedings” Rothegery v. marks the start of adversary judicial proceedings that trigger attachment of 6th right to counsel. and committed him to jail. set bail. R was released for posting bond. who told him the accusation. He was arrested as a felon in possession of a firearm. Holding: A criminal D’s initial appearance before a judicial officer. R made several oral/written requests for lawyer. Cops didn’t have warrant.  6th triggered @ initial appearance before a judicial officer: “preliminary arraignment” or hearing when the magistrate informs the D of the charge in the complaint and conditions of pretrial release. but had no $ for a lawyer. where he learns the charge against him and his liberty is subject to restriction. [Concurring: Alito. [Dissenting: Thomas]  “Prosecution”: manner of formal accusation—when 6th attaches o Framers said “criminal prosecutions. Just bc right attached does not mean he was denied right to counsel bc he may not have been refused counsel during a critical stage of the prosecution.B. so they brought in front of Magistrate. all result in punishment based on questioning (1) Incrimination (2) Perjury (3) Contempt Santiago 62 . no response. accused is entitled to presence of appointed counsel during any “critical stage” of post-attachment proceedings. Joined by Chief and Scalia]  Three ways 6th defines right to counsel: o Who may assert the right (“the accused”) o When the right may be asserted (“in all criminal prosecutions”) o What the right guarantees (“the right…to have the Assistance of Counsel for his defense”)  6th requires the appointment of counsel after the D’s prosecution has begun and then as necessary to guarantee the D effective assistance @ trial…any pretrial “critical stage”  Concerned w the countries resources  Distinguishes btw right and stages o Court does not hold there was a 6th violation. Finally got a lawyer who confirmed he was never convicted of felony. but that the right to counsel “attached” @ D’s first court appearance. and put in jail for 3 weeks. 6 months later he was indicted. 1983 action against county for violating 6th right to counsel.” not criminal proceedings or criminal cases  5th:“criminal cases” o Appearance before magistrate is preliminary to the prosecution  Affidavit of PC is NOT a formal accusation constituting criminal prosecution  6th right to counsel is “offense specific”  Petitioner’s appearance was not an “adversary” proceeding  6th protects against the risk of erroneous conviction. not the risk of unwarranted prosecution Cruel Trilemma: Choice of 3 options. Gillespie County [2008] [Opinion: Souter] Facts: Background check wrongly showed R had a record. o TX 15.17 counts—first formal proceeding  Should have appointed lawyer earlier and avoided 3 weeks in jail  Once attachment occurs. rearrested.

joined by Marshall]  Believes the use of a mentally ill person’s involuntary confession is antithetical to fundamental fairness of DPC Santiago 63 . Holding: Coercive police activity is a necessary predicate to the finding that a confession is not “voluntary” w/in the meaning of the DPC of 14th. but their use is not fundamentally unfair or a denial of DPC  C was not competent to waive his 5th rights—relationship changed after handcuff/taking into custody o Wavier is voluntary if it’s an exercise of “free will” o Custodial interrogation was presumptively coercive—post-custodial statements are inadmissible [Dissenting: Brennan. [Concurring in the Judgment in part and dissenting in part: Stevens]  Pre-custodial statements were involuntary. and personal characteristics of suspect (age. Cop told C he had right to remain silent and C told him he understood and proceeding to talk. and prior police experience). but the result came out the way it did bc he was being coerced by GOD not by the POLICE OFFICER. length of interrogation itself. the ER is part of the RIGHT enforced by the DPC. o Promises of Leniency and threats of harsh legal treatment o Deception—cop displaying false sympathy for the accused. not Constitutional question  Not a coercion case. whether it was incommunicado.  Considerable police deception is admissible—case law is not consistent. there is no basis to conclude any state actor has deprived a criminal D of 5th DPC  Link btw coercive activity of the State and the resulting confession by a D o “Voluntariness” does not include a D’s motivation for speaking/acting o Suppressing evidence would serve no purpose in enforcing constitutional guarantees o State of mind—State law question. o May be so unreliable that they would not support a conviction. but deception alone will usually not invalidate a confession. intelligence.Chapter 10: The Privilege Against Compelled Self-Incrimination  Voluntariness factors: o Actual or Threatened use of force--confession obtained by threatened or actual use of violence is inadmissible.  Constitution leaves the reliability of the statement to be resolved by state laws concerning evidence. o Obtaining versus using the statement—exclusion of a confession obtained involuntarily is not a remedy for a constitutional violation.  Absent police conduct causally related to the confession. daytime/nighttime. falsely claiming to have incriminating evidence. but did not violate 5th bc they were not the product of state compulsion.  ER is broader than 4th and 6th when applied to 5th  A. or falsely asserting that a co-D has implicated the accused in a crime. “Compelled” Colorado v. level of education.  Can find involuntary bc the individual’s will was overborne or bc the interrogation techniques were morally unacceptable. Connelly [1986]**Voluntariness versus official coercion [Opinion: Rehnquist] Facts: C told a uniformed. C took cops to location of crime and later told officers “voices” told him to confess. o Psychological pressures—coercion can be mental as well as physical  Factors: length of custodial detention. Remedies for violation of the right: o Must be state action!! (Connelly—3rd party does not make evidence inadmissible under DPC). off-duty officer he murdered someone and wanted to talk about it.

California [1966]**What counts as testimony? [Opinion: Brennan] Facts: Physician drew S’s blood to test BAC.   Absence of police wrongdoing should not determine the voluntariness of a confession. Joined by Stewart]  Would go further and hold the case does not implicate 5th. and 4th unreasonable search/seizure. S claimed it violated 5th privilege against self incrimination. 4th: Whether police were justified in req.  Test was reasonable—commonplace. bloodshot eyes—suggests success/relevance of blood test  Officer might reasonably have believe it was an emergency—threat of destruction of evidence o Attempt to secure evidence of BAC was an appropriate incident of S’s arrest. purpose is to communicate that S was drunk. minimal extraction. but free will is also a concern o Traditionally use TOTC including motivation and competence of D to determine voluntariness Concerned about reliability o In accusatorial system. [Dissenting. should be a totalityof-the-circumstances surrounding the confession o Police overreaching is an element. YES.  PC for officer to arrest/charge S o Smelled liquor on S’s breath. may not force a person to surrender. S to submit to blood test and whether means were reasonable. make it non-testimonial. confessions carry heavy weight bc it lowers state’s burden of proof  Tips the balance against the D  Must be careful about confession’s reliability No corroboration of D’s confession B. State has no right to extract blood over accused’s protest. you did not say anything or give testimony at all. o Result of test offered as testimony o Privacy claim is linked to 5th—later becomes 4th [Dissenting: Douglas]  5th marks a “zone of privacy” which the Gov. but S did not consent to test.  If you want it to come in. Holding: (1) Privilege against self-incrimination is not available where accused did not have to testify against himself in a testimonial or communicative nature. 4th gives right to be secure in your persons—forcible bloodletting invades these. Joined by Douglas]  Taking blood is testimonial and communicative—person who extracted gives information about BAC. “Witness” Schmerber v. 6th right to counsel. lie detector test is essentially testimonial o Blood test evidence is an incriminating product of compulsion. (2) Withdrawal of blood was not an unreasonable search/seizure bc there was PC for the arrest and emergency for the destruction of evidence. 5th: Compelled to be a witness against himself? NO  Officer directed physician to administer test over S’s objection  compulsion  BAC is evidence of criminal guilt  Privilege is in regard to communications or testimony. but not a testimony or communicative act or writing—admissible. [Dissenting: Black. Fortas]  Under DPC. not real or physical evidence o However. Then. performed reasonably @ hospital o Different if administered by policy in stationhouse—risk of infection/pain [Concurring: Harlan. o Act of violence Santiago 64 .  4th constrains against intrusions that are not justified in the circumstances or which are made in an improper manner. Also the blood was taken in a reasonable manner.

 5th implicated bc the act of production testifies to the existence. B said producing the child would violate 5th “witness against himself.  Here. Social Services got an order to put the child in foster care. Court granted the petition. Limits on the Privilege Baltimore Dept. guilt. does not transform it into custody conferred by State.” Holding: Custodian of a child may not invoke the 5th privilege against self-incrimination to resist an order of the juvenile court to produce the child when the State’s regulatory requirement does not compel incriminating testimony or aid a criminal prosecution. o Cannot claim 5th based upon incrimination that may result from the contents or nature of the thing demanded. Marshall. o Social services efforts are not focused on criminal conduct: concerned for the child’s safety  If person complies w regulatory requirement and subsequently faces prosecution  5th protections may be available. what examination of child would reveal.C. Bouknight [1990]**Regulatory/Spec. B retained legal custody of child. possession. o Individualized inquiry allows privilege to turn on concrete facts o If State demands testimony  explicit grant of immunity to B Santiago 65 . [Dissenting.  As mother. but B would not produce the child. Joined by Brennan]  Would hold that the admission of possession/control presents a threat of self-incrimination—link in chain of evidence to est. B got temporary custody w conditions. precise nature of testimony sought. v. or authenticity of the things produced. B violated conditions. th cannot be invoked to resist compliance w a regulatory regime  5 o B assumed custodial duties—submitted to regulatory system o Once child was adjudicated a “child in need of assistance”—care/safety was part of State’s regulatory interests. o B is not acting on behalf of the State  Would apply analysis to target D’s particular claim of privilege. Services petitioned court to put the child into foster care. of Social Servs. and the likelihood of self-incrimination caused by D’s compliance. Court found B in contempt until she produced child. Needs S [Opinion: O’Connor] Facts: Child hospitalized for abuse by mother.

Interrogation. M filled out a form. M left after interview o Noncustodial situation is not made custodial bc of “coercive environment”  By nature. Custody. and Incrimination Oregon v. Cop Mirandized M and took a taped confession. Holding: A suspect who voluntarily comes to police station in response to police request is normally not in custody and is not entitled to Miranda warnings. and subjected M to field sobriety test. regardless of the nature or severity of the offense of which he is suspected or for which he was arrested…Miranda applies to misdemeanors. an interview of one suspected of a crime by a police officer will have coercive aspects. o M could have believed he was not free to leave  Case was coercive—requires Miranda warnings o Interrogated in “privacy” in “unfamiliar surroundings” o Investigation had focused in on M [Dissenting: Stevens]  M was on parole @ time of interrogation—State has greater power to question o Parolee does not have choice btw silence/responding to police interrogation o Parolee is technically in legal custody continuously until his sentence is served—should always be Mirandized.  Police do not have to Mirandize everyone they question  Just bc questions are in station or person is suspect does not mean “in custody”  Officer’s false statement has nothing to do w custody. M called officer and scheduled a meeting. and told by police they believed he was involved. Berkemer v. They tried to call him 3-4 times and left a card at his apartment asking to set up a meeting. [Dissenting: Marshall]  M interrogated behind closed doors. (2) Roadside questioning of a motorist detained pursuant to a routine traffic stop is not a “custodial interrogation. Cop arrested M and took him to jail where he conducted a breathalyzer test. McCarty [1984] [Opinion: Marshall] Facts: Cop pulled M over for sloppy driving. M failed the test and told officer he had three beers and smoked pot. but was never Mirandized. diminishes fear of abuse  Rationale: pressure inherent in a custodial interrogation are not present in traffic stops…no coercive environment. informed he was not under arrest. Mathiason [1977] Facts: Police suspected M of a burglary. M was released from the station. Cop lied and said they found M’s fingerprints @ the scene and M confessed w/in 5 minutes.Chapter 11: Administering Miranda A.”  Traffic stop curtails “freedom of action”—few motorists would feel free to leave w/out being told they can o Seizure in meaning of 4th o Mitigating danger a person to speak where he would otherwise not do so freely:  Presumptively temporary and brief  Motorist does not feel completely @ mercy of police—public. Santiago 66 . Holding: (1) A person subjected to custodial interrogation is entitled to the procedural safeguards enunciated in Miranda. Test did not detect alcohol. had been named by the victim as a suspect. asked him to get out of the car.  Custody did not happen until the arrest.  Not “custodial interrogation”—M’s freedom to leave was not restricted o Came voluntarily.

[Concurring in Judgment: Burger]  Result is consistent w/ Miranda. not particularly evocative. I said he understood his rights and wanted to speak w lawyer. so he concurs  Reasoning introduces uncertainty—few cops can make the evaluation necessary to the susceptibility of the accused. Could be expected to produce response. o Few off-hand remarks. but where a suspect in custody is subjected to interrogation.  Miranda safeguards not required where suspect is taken into custody. Innis [1980] [Opinion: Stewart] Facts: I arrested for shooting a cab driver and was Mirandized. Rhode Island v. Joined by Brennan]  Agrees w definition of “interrogation” regarding objective inquiry into police conduct  However. He was put in the officers’ car and the officers were told not to question/coerce him in any way. [Dissenting: Stevens]  For full 5th protection. Court should not pass a constitutional question in advance of the necessity of deciding it. [Dissenting: Marshall. thinks it was an interrogation: o Strong appeal to I’s conscience about innocent schoolgirl. officers should not have known their convo would elicit an incriminating response from I.[Concurring in Part and Concurring in the Judgment: Douglas]  Question of admissibility of roadside statements is not in petition for cert. Santiago 67 . I told officers to turn the car around and he would show them the gun. saying they would feel bad if a handicapped girl found the gun. Holding: Interrogation under Miranda refers to express questioning and any words/actions by police that the police should know are reasonably likely to elicit an incriminating response from the suspect. o Does not matter that it wasn’t addressed to I—officers were in close quarters and knew I would hear. interrogation must include any police statement/conduct that has the same purpose/effect as a direct question. o Interrogation must be a measure of compulsion above and beyond that inherent in custody itself o Come indo play whenever a person in custody is subjected to either express questioning or its functional equivalent o Applies to words/actions by police that the police should know are reasonably likely to elicit an incriminating response from the suspect (Objective Test)  I was not interrogated w/in meaning of Miranda—not express questioning. Officers talked amongst themselves.  Court’s test creates an incentive for police to ignore suspect’s invocation of rights and continue to extract info from him.

After handcuffing Q.  Police will be able to distinguish btw Qs necessary to secure their own safety/safety of public and Qs designed solely to elicit testimonial evidence from a suspect.  “Public Safety” exception too blurry o Police will benefit bc court will find exigency excused Miranda failure o Police will suffer bc what they though was exigency. Q might be deterred from responding—cost would be more than failure to obtain evidence useful in conviction. Joined by Brennan and Stevens]  Man was arrested under suspicion of possessing a firearm in violation of NY law—suspect incriminated himself by locating the gun. ordered him to stop. but will be excluded @ trial [Dissenting.  Here: question only pertained to locating the missing gun and after gun was secured.  “Public Safety” Exception: situations where police officers ask questions reasonably prompted by a concern for the public safety. and frisked him which led him to discover an empty gun holster. rather it decides who shall bare the cost when such Qs are asked/answered: the State o Can ask question. o Public safety exception allows police to coerce Ds into making involuntary statements.New York v. no suspected accomplice. o Public safety can be protected w/out violating 5th—unconsenting questioning may take place. but the statements cannot be used @ trial. Santiago 68 . officer asked where the gun was and Q told him. Holding: Overriding considerations of public safety justify an officer’s failure to provide Miranda warnings before asking questions devoted to locating an abandoned weapon. a court will view differently and exclude admissions  Miranda does NOT prevent police from asking questions. placed Q under arrest. it was a decision about coerced confessions.  Middle of the night—store was deserted  Pissed off @ Court: “More cynical observers might well conclude that a state court’s findings of fact ‘deserve a ‘high measure of deference’’ only when deference works against the interests of a criminal defendant. Miranda does not req. Quarles [1984]**Public Safety Exception [Opinion: Rehnquist] Facts: Woman told officers we was raped. and Mirandized him. o Not really a test. o Does not depend upon the motivation of individual officers involved o Does not depend on post hoc findings o If police were required to Mirandize. Marshall. o Absent coercion by the officer.  Need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting 5th’s privilege against self-incrimination.  Officers had no legit reason to interrogate suspect w/out advising rights o Public was not @ risk:  Q was in a condition of physical powerlessness. warnings were given before investigatory Qs about ownership/place of purchase. Officer then retrieved the loaded gun. and told officers he just entered the grocery. more of a conclusion—the cops will know [Concurring in the Judgment in part and Dissenting in Part: O’Connor]  Court did not apply sufficient justification to depart from Miranda  Would require suppression of the initial statement—“the gun is over there” o However. there is no need to exclude the evidence in the future.”  Police officers will not be able to apply exception  Miranda was not a decision about public safety. it would be danger to the public.  Franks: balancing test is problematic for a Constitutional right o Beginning of the end of Miranda as a constitutional right. exclusion of the nontestimonial evidence derived from an informal custodial interrogation—gun can go into evidence. described suspect. and situation was under control. Officer spotted Q who matched the description.

Inmate told police and the details fit w an unsolved murder. Illinois v. [Dissenting: Marshall]  Familiarity w confinement does not change incarceration into a noncustodial arrangement  Officer asked questions designed to elicit specific info about victim.  Method used: State can exploit vulnerability bc it has complete control over suspect’s environment. compulsion. Holding: Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement. P was not Mirandized. Santiago 69 . P said he had and told details of the murder. Cop asked P if he had ever “done” anyone.  Distinguish from Massiah: those are 6th. which attaches after charges have been filed. Police placed an undercover agent in the cell w P and inmate to elicit details of crime. Perkins [1990]**Undercover Agent Exception [Opinion: Kennedy] Facts: P told fellow inmate about a murder he committed. o Just bc suspect is in custody does not mean undercover Qs could not happen o Does not forbid strategic deception by taking advantage of a suspect’s misplaced trust  Ploys to mislead/lull into a false sense of security are not w/in Miranda  P viewed cellmate-agent as an equal…showed no hint of being intimidated o Suspect was incarcerated. Would throw away statement. and coercive atmosphere. remand to consider introduction of the gun. whether or not for the crime in question. In this case. but an interrogation likely to evoke an incriminating response. motive… o Not a conversation.  Cannot be coercive bc there was no obligation to respond.  Concerns of Miranda: police-dominated atmosphere. scene. o Lower court should use TOTC to see if DPC was violated. not a police dominated atmosphere.  Deliberate use of deception/manipulation by police raises Qs about whether P’s will was overborne. Miranda. weapon. o Interrogation + Custody = Miranda  Police took advantage of p’s vulnerability—compelled him to make an incriminating statement o Compulsion not eliminated by suspect’s ignorance of interrogator’s true identity. but detention. does not warrant a presumption that the use of an undercover agent makes the confession involuntary. no charges were filed. [Concurring: Brennan]  Was not an interrogation or inherently coercive environment to req.

M read and signed notification certificate. unless valid waiver  Valid waiver: must be voluntary and constitute a knowing and intelligent relinquishment or abandonment of right. E denied it and gave a taped alibi. Arizona [1981] [Opinion: White] Facts: E arrested pursuant to a warrant. he may never by subjected to custodial interrogation by any police officer @ any time or place on any subject. resumption of interrogation after a momentary break. you cannot question until counsel is present. Questioning ceased and E was taken to jail. Invocation and Waiver Michigan v. E said he would make a statement w/out being recorded and implicated himself. Cop questioned M. different location. Two hours later. only murder.B. signed waiver. Holding: Once a suspect requests his right to counsel. Mosley [1975] [Opinion: Stewart]  Knowing. who said he did not want to answer robbery questions. o Not shown by responding to further interrogation. is it a violation of 5th? [Concurring: White]  Sufficient to exclude all confessions which are the result of involuntary waivers.  Police honored the decision  Leaves a lot of Qs open. and Voluntary Facts: Tip implicated M and three others with robberies. Presumption of involuntariness. accused can waive by initiating further communication.” o One construction: once suspect invokes. unrelated murder. o Other construction: any statement after invocation of the right to silence is the product of compulsion and should be excluded from evidence. Detectives Mirandized E ad he listened to implicating tape. and reminded of rights again. or convos w police. a significant period of time has passed. M made an implicating statement. and was willing to be questioned. Cops told E another suspect implicated him in crime.  Officer did not ask about robbery. said he understood his rights. Holding: Once suspect invokes right to silence and police cease the interrogation. interrogation ceased. and fresh Mirandas have been given. Cop proposed a deal. and Mirandized him. Next morning detectives came to talk w E. Cop arrested M. even if advised of rights against o Once invoked. guard said he had to talk. does not depend on a period of time that must pass. all questioning must cease until counsel is present or the suspect voluntarily initiates the interaction. [Dissenting: Brennan.  Once accused invokes the right to counsel.  Once suspect invokes right to remain silent—“the interrogation must cease. new officer. even if volunteered by person in custody w/out further interrogation. two hour break. ceased. Edwards v. o Other construction: immediate cessation of questioning. E said he wanted an attorney before making the deal. E was Mirandized. brought him to Bureau.  Miranda does not create a per se proscription of indefinite duration o Admissibility depends on whether the right to cut off questioning was “scrupulously honored” o Here: orally acknowledged he understood. if any of these things aren’t present. so M was Mirandized again and signed form. Intelligent. Santiago 70 . exchanges. different cop questioned M about a shooting. Joined by Marshall]  Standard is vague/ineffective  Proposed standard: resumption of questioning should happen upon appointment/arrival of counsel. which M had not been arrested/interrogated about. police may resume questioning when it involves a different crime.

Said “I didn’t force him.  Having exercised his right on J 19th to have counsel present. sexual assault of his son. Santiago 71 . family. Franks: no longer Escobedo Rule (6th) for right to counsel. Maryland v. the standard for waiver is whether the actor fully understands the right in question and voluntarily intends to relinquish it…not initiation  Once warnings are given and right to counsel is invoked. cop came to ask questions. preserves integrity of an accused’s choice. Depends on facts and circumstances surrounding the case. assertion of right must be unambiguous [Concurring: Burger]  Inquiry is whether the resumption of interrogation is a result of a voluntary waiver. S declined to speak w/out attorney.” S requested an attorney. [Concurring: Stevens]  Time-based rule disregards the compulsion caused by a subsequent interrogation of a suspect who was told that if he requests a lawyer.  Edwards rule is a judicially prescribed prophylactic. so only applies where benefits outweigh its costs: o Benefits: presumption of involuntariness conserves judicial resources. and obtained a written waiver. Mirandized S. not voluntary [Concurring in the result: Powell.  Court does not explain why police cannot honor their commitment to counsel o 14-day break does not change the fact that custodial interrogation is inherently compelling o We do not know the defendant has been able to seek advice  Problem w rule exacerbated when suspect is in prison o Home ≠ prison cell  Prison guards do not look kindly upon prisoners who don’t cooperate w police. Returning to the general population constitutes a break-incustody. and consult w attorney. whether a suspect desires to talk w/out counsel is a question of fact to be determined by TOTC. Holding: Break-in-custody for more than two weeks btw first and second attempts @ interrogation ends the presumption of involuntariness of waiver. and S signed waiver of rights. o Should be resolved as an intentional relinquishment/abandonment of a known right or privilege. Joined by Rehnquist]  Does not join the courts opinion bc he does not know what it means  Whatever the right. otherwise it would be eternal: two weeks. o 14-day limitation eliminates coercive effect  Lawful imprisonment does not create the coercive pressures of Miranda o Accustomed surroundings and some freedoms. o Suspect will think the cops lied and he doesn’t have a right to a lawyer o May think further objection is futile and an interrogation is the only way to end interrogation. S was re-Mirandized and failed polygraph. o Enough that guard said E had to speak. he can go to normal life before interrogation. E did not validly waive it on the 20th during second custodial interrogation. and investigation was closed. Mirandized him. Shatzer [2010] [Opinion: Scalia] Facts: S in jail for unrelated sexual-abuse charge. Two and a half years later. and friends. S was confused that questioning was about abuse of another crime.  When suspect is released. one will be provided for him. Interrogation lasted 30 minutes and S agreed to submit to polygraph. different cop went back for questioning. communication w others. o Costs: exclusions of voluntary confession @ trial o Needs point of termination. I didn’t force him. [Concurring in part and Concurring in the Judgment: Thomas]  14-day test is an arbitrary number. and prevents police from badgering a D.

and has not invoked his Miranda rights.  If T wanted to remain silent—he would have said nothing  Police not req. 2 hours 45 mins into interrogation T said “Yes” when cop asked if he prayed to God to forgive him for shooting a boy.  T never explicitly invoked his right to silence. T could read/understand English. and officer read rights aloud. o Burden on gov. Concurs in judgment because 2 ½ year break in custody is a basis for treating the second interrogation as no more coercive than the first. Year later.  Answering question is a course of conduct indicating waiver of the right to remain silent. Joined by Stevens. understands them. waives the right to remain silent by making an uncoerced statement to police. Holding: A suspect who has received and understood the Miranda warnings. Ginsburg. read 5th aloud (aware his right would not dissipate after time). given time to read. he was found in OH and was to be transferred back to MI.  Written copy. and Breyer]  Prosecution has a “heavy burden” in proving waiver—did not meet it o Butler is on point—a court must presume that a D did not waive his rights o Refusal to sign evinces an intent not to waive rights o 2 hours 45 minutes of silence—strong evidence against waiver  Does not agree w Court’s ruling that a suspect must unambiguously invoke right to silence by speaking o Invites cops to question suspect at length eventually hoping to get a response Santiago 72 . Berghuis v.  Waiver must be voluntary—product of a free and deliberate choice rather than intimidation. o Behavior constituted waiver [Dissenting: Sotomayor. that he never waived his right to remain silent. coupled w an understanding of his rights and course of conduct o Here: T waived his right to remain silent—understood his rights and chose not to rely on them when he spoke. he is not as likely to draw conclusions when police interrogate him again.  Cannot invoke privilege to silence by staying silent for a sufficient period of time.  Police do not have to obtain a waiver before questioning o Can infer waiver from the actions and words of the person interrogated o Miranda met when suspect receives warnings. Court says not responding does not invoke. o When suspect is left alone for a significant period of time. Cops gave written Miranda statement and T read 5th warning aloud. and religious reference does not make it involuntary. Thompkins [2010] [Opinion: Kennedy] Facts: T was involved in a mall shooting and fled. cops read the rest. o Policy: results in an objective inquiry that avoids difficulties of proof and provides guidance to officers on how to proceed in the face of ambiguity. Two cops interrogated him for three hours in a 8 x 10 room while T sat @ school desk. and that police should not have begun questioning him until they understood whether he wished to invoke/waive rights. and has an opportunity to invoke the right before giving any answers/admissions. or deception—and made w a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. to rewarn suspects  No evidence of coercion—standard-sized room. T declined to sign the form that he understood his rights. coercion. T said he invoked his right to remain silent by remaining silent. to end interrogation or ask questions to clarify. T did not explicitly invoke his right to silence a + he talked later…so he waived his rights. o Suspect must waive unambiguously o If suspect makes a statement that is ambiguous or equivocal or makes no statement  cops not req. to demonstrate waiver—preponderance of the evidence o Implicit waiver is sufficient to admit a suspect’s statement to evidence  Can be implied through D’s silence. length does not mean coercion.

confidential informant implicated him in murder. Less than an hour later.  State of mind of police is irrelevant to voluntariness of respondent’s election to abandon his rights.  Deceiving lawyer (client’s agent) = deliberate deception of client himself Santiago 73 . C. but refused to execute a written waiver. B’s sister obtained counsel for him for the breaking and entering charge.  6th does not apply bc statements took place before the initiation of adversary judicial proceedings  14th DPC Claim: conduct falls short of the kind of misbehavior that so shocks the sensibilities of a civilized society as to warrant federal intrusion into the criminal processes of the states. and he knew of the State’s intention to use statements to secure a conviction  waiver is valid as a matter of law. Trickery Moran v. that he knew he could stand mute and req. o TOTC surrounding interrogation  B validly waived right to counsel  Events outside the presence of the suspect and entirely unknown to him have no bearing on the capacity to comprehend and knowingly relinquish constitutional right. a lawyer. o Knowingly and Intelligently—made w full awareness of the nature of the right abandoned and the consequences of the decision to abandon it. coercion. unaware of the murder suspicion. Mirandized 3x and signed written form that he did not want attorney before he gave statement. B signed 3 statements admitting to the murder. B was Mirandized. [Dissenting: Stevens.  Purpose of Miranda is to dissipate compulsion inherent in custodial interrogation and guard against abridgement of 5th—rule focusing on how cops treat lawyers has no relevance. but not sufficient for a valid waiver…no difference btw deceptive misstatement and concealment of a critical fact. Holding: A prearraignment confession preceded by a valid waiver does not need to be suppressed bc the police misinformed an inquiring attorney about plans concerning the suspect or bc the police failed to inform the suspect of the attorney’s efforts to reach him. rather than intimidation. B was subjected to a series of interviews. or deception.o Ambiguous invocation of right to remain silent—Mosley rule: The suspect’s right to cut off questioning must be scrupulously honored  When statements/actions can only be understood as invocation of right to remain silent.  Balancing approach is misguided—interest in prompt justice to a murder/rapist always outweighs value of procedural safeguards. police should terminate questioning. o Would have waived rights even if lawyer did not call o Additional info would have be useful.  Valid waiver: o Voluntary—product of a free and deliberate choice. but Constitution does not require police to supply a suspect w a flow of info to help him calibrate his self-interest. Lawyer called police and was told questioning was done for the night. Burbine [1986] [Opinion: O’Connor] Facts: B arrested for burglary.  Once it is determined suspect’s decision was uncoerced. Joined by Marshall]  Incommunicado questioning usually is the highest level of deception o Violates the ABA’s Standards for Criminal justice o State courts + legal profession’s standards  conclusion that police may not interfere w communications btw an attorney and the client whom they are questioning  Failure of cops to tell B of the attorney call makes waiver invalid o Heavy burden of waiver on government o Miranda warnings are necessary. B had access to telephone.

 Cops not req. S confessed to murder and did not request counsel. Joined by Stevens. Cops asked S about firearms transactions that led to arrest. Holding: When question-first tactic produces a confession prior to Miranda warnings. to tell suspect the subject matter of an interrogation o No trickery to invalidate waiver o Some affirmative misrepresentations invalidate waiver—think Spano—but not here [Dissenting: Marshall. taken to police station.  “Effective” Miranda approach will serve same function: only when certain circumstances intervene btw unwarned questioning and postwarning statement. then she was given 20-minute break. Ginsburg. Seibert [2004] [Judgment of the Court and an Opinion: Souter. S read. Cop did not tell her the previous statement could not be used. Did not follow rule in this case. and questioned w/out Miranda for 30-40 mins. S said he shot a guy once.  Narrower test: admissibility of postwarning statements related to the substance of prewarning statements must be excluded unless curative measures are taken before postwarning statement is made. he would not have consented to interrogation w/out attorney. Cop resumed questioning and S repeated her confession. and Breyer] Facts: S was arrested. Missouri v. and signed statement. Spring [1987] [Opinion: Powell] Facts: S arrested during an undercover firearms purchase and was Mirandized twice.  Elstad—held an Mirandized statement following an un-Mirandized statement can be admissible if the waiver of Miranda is voluntary. Month later. Holding: A suspect’s awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect [Concurring: Breyer]  Courts should exclude “fruits” of initial unwarned questioning unless failure to warn was in good faith. o Waiver is invalid o Reasonable to conclude had S known about fed’s intent to ask questions about murder. [Concurring in the Judgment: Kennedy]  Majority’s objective inquiry from the perspective of the suspect is too broad.  S knowingly and intelligently waived his right. o Curative measures: ensure a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and waiver. edited. then asked if he had a criminal record and if he ever shot anyone else. S gave incriminating statement. Cop turned on tape recorder. Joined by Brennan]  TOTC: coercive aspects combined w element of surprise rise to a level of deception.  Suspect does not believe he has a genuine right to remain silent—already confessed  Police did not advise her that the prior statement could not be used  Impression that the questioning was a continuation of earlier questioning—reasonable to regard 2 sessions as continuum—do not convey message that she had a choice about continuing to talk. a repeated confession will be inadmissible unless a reasonable person would have perceived the second line of questioning as a new and distinct experience. and obtained a signed waiver. S signed a waiver. o Warnings are ineffective in preparing suspect for successive interrogation.  Does question first warn later function “effectively” as Miranda requires? o Must put suspect in position to make an informed choice—otherwise second stage continuous w first. and intelligently waived his 5th privilege. Santiago 74 . knowingly.Colorado v. Mirandized S. cops Mirandized S and obtained waiver.

 Congress has the ultimate authority to modify or set aside judicially created rules of evidence and procedure that aren’t req. and Thomas]  Agrees w plurality that S’s statement is not inadmissible under “fruit of the poisonous tree” theory and that subjective intent of interrogating officer should not be considered. must be Constitutional command. by Constitution o Congress may not supersede decisions interpreting/applying Constitution  Miranda is a constitutional decision o Rule applies to state courts—court cannot hold supervisory power over state courts—therefore. Court held that § 3501. o Language of Miranda: “give concrete constitutional guidelines for law enforcement agencies and courts to follow. moved to suppress non-Mirandized statement. Continuing Validity Dickerson v. o 2nd statement should be suppressed if S shows its involuntary despite Miranda—court should analyze on remand. which makes admissibility of statements turn on whether they were voluntary. United States [2000] [Opinion: Rehnquist] Facts: D indicted for crimes. being a constitutional decision of the Court. D.  Miranda is a prophylactic rule—does not have the full power of a constitutional right [Dissenting: Scalia]  Santiago 75 . was satisfied and Congress had the final say on question of admissibility.[Dissenting: O’Connor. court must examine whether the taint dissipated through passing of time or a change in circumstances. Scalia. Miranda and its progeny in the Court govern the admissibility of statements made during a custodial interrogation in both state and federal courts. Holding: Miranda. Joined by Chief. may not be overruled by an Act of Congress.  Would analyze two-step under voluntariness standards o If S’s 1st statement is involuntary.

This type of effort cannot be prohibited. o Other cops knowingly violate 4th—exclusionary rule might be too indirect and attenuated of a punishment to adequately deter. updating officers on constitutional law. so it places a greater and greater burden on those who invoke the rule to suppress evidence. cops found obscene materials. o More than half the states have adopted/adhered to Weeks rule since. better training. the 4th has been interpreted and has changed over time to accommodate our needs.  Not an individual right and applies only where the benefits of deterrence outweigh the costs. forcibly opened the door. Ohio [1961] [Opinion: Clark] Facts: Officers went to M’s house pursuant to info that a suspected bomber was hiding there and there was policy paraphernalia being hidden there. At trial.Chapter 12: The Remedy of Exclusion  Exclusionary rule has little textual support in the 4th Amend. by admitting unlawfully seized evidence.”  As it stands. serves to encourage disobedience to the Federal Constitution which it is bound to uphold. More search warrants applied for? Cost/benefit analysis—deterrence benefits outweigh its substantial social costs.  SC is growing increasingly disenchanted w/ the ER. o Ask: what values did the Framers hold dear? What means best enforce those values in modern times? Deterrence: o Some cops misunderstands a complex 4th rule or interprets the facts regarding a search/seizure differently than the court. o Only in Criminal Proceedings—not in Habeas cases!    A. o Could argue deterrence of the institution as a whole: promotes professionalism. o Federalism—avoid conflict btw Federal and State Santiago 76 . th’s right to privacy enforceable against States through DPC of 14th  4 o Sanction of exclusion must also be enforceable against them—otherwise.  Wolf: declined to apply Weeks exclusionary rule to the States by the DPC. Suppression happens long after the actual offense and officer might not even know about it. Holding: All evidence obtained by searches/seizures in violation of the Federal Constitution is inadmissible in a criminal trial in a state court. Rationale Mapp v. o Costs: can exclude reliable evidence o Benefits: innocent people are not searched When the ER applies: o Whether the cost of its use is likely to outweigh the incremental deterrent benefit of extending the doctrine to the situation. Ultimately. the State. no search warrant was produced. Cops would not allow attorney into the house. unreasonable searches/seizures would be “a form of words”  Purpose of exclusionary rule: o “to deter—to compel respect for the constitutional guaranty in the only effectively available way— by removing the incentive to disregard it. but M refused. o On the other hand. o Other remedies for protection have been worthless and futile o “Silver Platter” doctrine: recently discarded—allowed federal judicial use of evidence seized in violation of the Constitution by state agents. Cops handcuffed M for being “belligerent” and searched through her house. Could say that the issue could best be solved with the law of tort remedies. Officers knocked and demanded entrance. looking the origin and development. Hours later additional officers sought entry. and gained admittance.  Weeks: held that 4th barred use of evidence secured through an illegal search/seizure in a federal prosecution.

Joined by Frankfurter and Whittaker]  Court has disregarded stare decisis  ½ states still adhere to common-law non-exclusionary rule  Federal court cannot point the State in one direction or another—state power  Trial procedure is w/in state power Hudson v. papers and effects: o Protection of human life and limb—self-defense by resident o Protection of property o Protects privacy and dignity that can be destroyed by sudden entrance ER applied where deterrence benefits outweigh the substantial social costs  Santiago 77 . they announced presence. or worse.. Pg. [Concurring: Black]  4th. [Dissenting: Harlan. however. when you consider ban on unreasonable searches/seizures w/ ban against self-incrimination. 957 Interests promoted by knock-and-announce different than shielding persons. if he must. o o Exclusionary rule  “substantial social costs”  ER not applied merely bc constitutional violation was a “but-for” cause of obtaining evidence. Police would have executed the warrant whether or not the preliminary misstep occurred  o “the exclusionary rule has never been applied except where its deterrence benefits outweigh its substantial social costs. standing alone is not enough to bar introduction of papers/effects seized in violation o Language is not expressly precluding  However. action of trespass against officer would be difficult for a citizen to maintain. but it is the law that sets him free.o  Cardozo: “the criminal is to go free because the constable has blundered. has always been our last resort. 945. Holding: Exclusionary rule is not an applicable remedy to a violation of the knock-and-announce rule. When police arrived @ house. its disregard of the charter of its own existence. ER is justified. o Judicial integrity ER promotes Federal-state cooperation to solve crime o “The criminal goes free. houses.” Pg. Michigan [2006] 5-4 decision—Knock-and-Announce Rule [Opinion: Scalia] Facts: Cops have warrant to search for drugs/firearms @ H’s home. not our first impulse” Pg.” Pg. 955.”—in some cases. 945. but waited 3-5 seconds before turning the knob of the unlocked front door and entering H’s home. this will undoubtedly be the result. Nothing can destroy a government more quickly than its failure to observe its own laws. [Concurring : Douglas]  Allowing States to come up w their own remedy robs the 4th of meaningful force o Prosecution of the police officer is too lofty o If ER isn’t req.  Common-law principle: officer must announce their presence and provide residents opportunity to open door o Exceptions: threat of physical violence or reason to think evidence would be destroyed if advance notice was given or knock/announce would be “futile”  Police only need reasonable suspicion for exception o “Reasonable wait time” standard  Issue in this case is the remedy to violation o “Suppression of evidence.

 Majority gives “attenuation” a new meaning: occurs when the interest protected by the constitutional guarantee that has been violated would not be served by suppressing the evidence obtained. o [Concurring in Part and Concurring in the Judgment: Kennedy]  K and A protects rights/expectations linked to constitutional principles. officials will find it easier to proceed w/ what they consider a necessary search immediately and w/out the requisite constitutional compliance. like civil remedies. violence against officers from waiting longer o Benefits: deterrence not worth a lot o Civil law suit is an effective deterrent Franks: first case w/ violation of 4th and no ER. or legislation  Suppression is more serious—K and A is too attenuated for suppression o Failure to wait 20 seconds is not what causes the discovery of evidence o Not a widespread pattern of violation  Evidence discovered bc of subsequent search. and Ginsburg]  ER should apply to violation of knock-and-announce bc it is inherent in assessing the reasonableness of a search/seizure. nothing in 4th says you have to exclude. o Admissibility in proceedings other than criminal trials was at issue.  Violation of K and A is a widespread pattern  Court only has denied application of ER when: o There is a specific reason to believe application of the rule would not result in appreciable deterrence. Santiago 78 .  Gov. not trivial  ER will continue  Other ways to discipline cops. not bc of failure to K and A [Dissenting: Breyer. Costs: exclusion of relevant incriminating evidence. difficult for trial court to assess. regulations. Joined by Stevens. get-out-of-jail-free card. Souter.  Actual entry was connected to unlawful entry—entry was a necessary condition to cops presence in H’s home and there presence was a necessary condition in their finding/seizing evidence.

(2) evidence obtained in violation of 4th is not necessarily irretrievably tainted.    Silverthorne Lumber Co. intervening events.B. Threshold issue: whether the evidence is the product of illegal governmental activity. and nature of the derivative evidence. Diary names a witness to the murder. rather the facts may be used if knowledge of them is gained from an independent source. who agrees to testify against D at his trial. United States [1920] [Opinion: Holmes] Facts: Silverthornes arrested @ their homes and detained. Cop made photographs/copies of material papers and used in indictment. While in detention. “Fruit of the Poisonous Tree”   4th Exclusionary rule applies to direct products of governmental illegality. flagrancy of the violation. cops seize a diary. Santiago 79 . Originals were returned. and (3) the attenuated connection principle  Attenuation factors: temporal proximity (immediately after taint or some time later). Holding: (1) Evidence seized in violation of 4th and any evidence that derives from such a violation cannot be used in the government’s case-in-chief. BE CLEAR AS TO THE NATURE OF THE “POISONOUSE TREE”—THE CONSTITUTIONAL VIOLATION THAT CONSTITUTES THE INITIAL ILLEGALITY. intervening act of free will (Wong Sun was released from jail and voluntarily came back). v. but also to secondary evidence that is the “fruit of the poisonous tree” Example o Unconstitutional search of D’s house. but court later subpoenaed their production. o Unconstitutional search is the initial illegality: it is the “poisonous tree”  Diary is inadmissible as the direct product of an unlawful search—ER o Testimony is “secondary” or “derivative” evidence—fruit of the poisonous tree (ordinarily inadmissible) Three qualifications: (1) the independent source doctrine—evidence is not a fruit of the poisonous tree. cop went to their office and took all the books. not subject to ER (2) the inevitable discovery rule. papers and documents.

” Toy was questioned and said Sea Dog was Wong Sun. and White]  Court applies hind-sight. Stewart. Agents broke down door. guilt  Sufficient PC here—officers found laundry quickly. Joined by Harlan. and found no drugs. and found heroin. officers put statements together that were read to them. name “Blackie Toy. Toy said he didn’t open til 8.Wong Sun v. not finding any drugs. Toy ran. but PC only needs proof sufficient to est. returned voluntarily several days later o Connection btw arrest and statement had become attenuated to dissipate the taint o Even if certain evidence is causally tied to an earlier illegality—even if the tree is poisoned—at some point the fruit from that tree is sufficiently untainted so as to be admissible in a criminal trial. and Toy ran into living quarters. cops went. wife answered. arrested him. Officers took Wong Sun from his bedroom in handcuffs and searched apartment. Way said he bought it from laundryowner “Blackie Toy. unrelated to tainted relationship btw Toy’s statement and surrender by Yee [Concurring: Douglas]  PC could not have justified arrest of Toy w/out warrant [Dissenting: Clark. entered. Toy. and Yee were questioned separately.  Narcotics taken from Yee o No standing. Wong revealed himself.” unspecific location  Flight does not matter bc cop misrepresented his mission at outset o Toy’s declarations are excluded as “fruits” of agents’ unlawful action  Verbal evidence which derives so immediately from an unlawful entry/unauthorized arrest are fruit of official illegality  No distinction btw physical and verbal evidence for ER  Circumstances show it was not an act of free will  Narcotics taken from Yee o Government did not learn of the evidence from an independent source o Drugs were come at by the exploitation of the primary illegality  Toys unsigned statement o Suppress bc of rules of evidence Wong Sun’s Case:  Arrest was w/out probable cause or reasonable grounds o Unsigned confession was not the fruit of that arrest—properly admitted @ trial o Released after lawful arraignment.  Four items of evidence: (1) Toy’s statements in his bedroom (2) Heroin surrendered by Yee (3) Toy’s pretrial unsigned statement (4) Sun’s pretrial unsigned statement Toy’s Case:  No reasonable grounds nor PC for Toy’s arrest—Statements out o Based on info. Way  Toy  Yee (heroin)  Wong Sun and Toy Holding: Presentation of verbal evidence and drugs obtained by an illegal entry were both inadmissible in court except where there is a break in the chain of evidence. United States [1963] [Opinion: Brennan] Facts: Narcs agents watched Way for 6 weeks. Toy ratted out Johnny on 11th. At station Yee told police he bought heroin from Toy and “Sea Dog. and Yee gave over drugs. Wong Sun. and officers went into apartment. searched premises. arrest was imperative to prevent escape Santiago 80 . cops went to his house. would not have been able to get a warrant  Way’s tip was unreliable—never given info before.” Agents went to laundry mat operated by James Wah Toy (not necessarily Blackie Toy) and had Wong say he wanted services. Toy and Sun would not sign the statement.

 Focus is unwarned statements  Failure to give Miranda warnings does not by itself violate suspect’s constitutional rights or the Miranda rule—violation occurs when evidence is admitted at trial [Concurring in the Judgment: Kennedy. [Dissenting: Breyer]  Courts should exclude physical evidence derived from unwarned questioning unless failure to Mirandize was in good faith.United States v. Holding: Failure to give a suspect Miranda warnings does not require the suppression of the physical fruits of the suspect’s unwarned but voluntary statements. Patane [2004] Facts: P was arrested.  Self-incrimination Clause is self-executing—involuntary statements from coercive police interrogations have automatic protection from use in criminal trial. Santiago 81 . P violated TRO and was arrested. Joined by Stevens and Ginsburg]  Plurality adds inducement for interrogators to ignore Miranda rule. Cop asked about pistol and P said it was in his bedroom and gave permission for cop to seize it. Joined by O’Connor]  Concerns underlying Miranda must be accommodated to other objectives of the criminal justice system. Cop attempted to Mirandize. [Dissenting: Souter.  Admission of nontestimonial physical fruits does not run the risk of admitting accused’ coerced incriminating statements.  Failure to Mirandize does not violate Constitution—violation occurs upon admission of unwarned statements into evidence @ trial o Miranda is a fundamental trial right o Does not bar admission of physical fruit of a voluntary statement o No fruit of poisonous tree from Wong Sun  Miranda does not require that fruits be discarded as inherently tainted. and given a TRO.  Miranda violation raises presumption of coercion—5th extends to exclusion of derivative evidence. released on bond. but P interrupted that he knew his rights…warning was not completed.

Joined by Marshall]  Agrees that inevitable discovery exception to exclusionary rule is consistent w/ Constitution o Court loses sight of difference btw inevitable discovery and independent source: independent source allows prosecution to use evidence only if it was obtained by fully lawful means—does not do any damage to constitutional protections exclusionary rule is meant to enforce. but is later obtained lawfully in a manner independent of the original discovery. so evidence should be received. but one where the constable planned an impermissible interference w the right to assistance of counsel. by a preponderance of evidence that the information would have been discovered by lawful means—then deterrence rationale has little basis. Holding: Physical evidence obtained through a violation of constitutional right will not be excluded if the cops can prove by a preponderance of the evidence that they would have found it anyway.  Court adopts the ultimate or inevitable discovery exception to the exclusionary rule—evidence properly admitted on ground that it would ultimately or inevitably have been discovered even if no other violation of any constitutional provision taken place.Limits on Excluding Evidence   2. Inevitable Discovery rule: evidence is causally tied to earlier governmental illegality. Independent Source and Inevitable Discovery Independent source doctrine: applies if evidence is initially discovered unlawfully.  Would be found “w/in a short time” and in “essentially the same condition” [Concurring: White]  Brewer I was a 5-4 decision and four members of the court did not think Detective did anything wrong or unconstitutional—acted as many police officers would have done under similar circumstances and in light of then-existing law.  Prosecution must est.  Exclusionary rule serves to deter police violations o Prosecution is not to be put in a better position than it would have been in if no illegality had transpired o Derivative evidence analysis ensures the prosecution is not put in a worse position bc of some earlier police error of misconduct. Deciding whether evidence pertaining to discovery/condition of victim’s body was properly admitted on the ground that it would ultimately or inevitably have been discovered even if no violation of any constitutional or statutory provision had taken place. inquisitorial process for adversarial process o Not a case where the constable blundered.  Body was bound to be discovered by efforts already underway. o Independent source doctrine: does not apply here bc it allows admission of evidence discovered by means wholly independent of any constitutional violation. but the prosecutor asserts that the police would have discovered the evidence lawfully despite the unconstitutional conduct. o Gov. [Concurring in Judgment: Stevens]  Condemns officer’s conduct: o Speech was an attempt to substitute and ex parte. o Low burden  Detective’s conduct did nothing to impugn reliability of evidence in question o Suppressing evidence that would have been found anyway puts state in worse position than if no misconduct. should have to satisfy heightened burden of proof before using evidence—clear and convincing evidence Santiago 82 . Williams [1984] [Opinion: Burger] Facts: Christian burial speech case. Nix v.  Officer’s question leads to costly litigation--$$ and labor [Dissenting: Brennan.

and the vehicles lawfully seized. which was based on an affidavit that did not include anything learned by the police during the illegal first entry.  Does not encourage officers to routinely enter w/out warrant bc officer w sufficient PC to get a search warrant would not want to risk suppression of evidence. Holding: Independent source doctrine applies to evidence initially discovered during an unlawful search. must rely on demonstrated historical facts capable of ready verification or impeachment  Here: same officers. or as a consequence of. an unlawful search. but worse one.Murray v.  Warrant was supported by PC. would be poisoned. United States [1988] [Opinion: Scalia] Facts: Cops watched M based on info from informant and saw individuals load a dark container onto a tractortrailer. saw in plain view bales of pot. [Dissenting: Marshall. arrested. Santiago 83 . and 6th violations and applies to evidence initially discovered during. Cops reentered warehouse w warrant and seized bales and notebooks. Cops found pot in vehicles.  Present case: knowledge of pot was obtained during unlawful entry but also at entry pursuant to warrant. o Agents made no effort for warrant prior to illegal entry o To insure independence. Applied for a search warrant. but did not mention prior observations. who were followed. 5th. warrant obtained immediately after [Dissenting: Stevens]  Against Segura bc it would provide agents w incentive to engage in unconstitutional violations of the home. tainted one  Ultimate Q: whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence @ issue. Joined by Stevens and O’Connor]  Court’s decision fails to provide guarantees that the subsequent search was independent of the illegal search and undermines the deterrence function of the exclusionary rule. but later obtained independently from activities untainted by the initial illegality. Agents went into warehouse and forced entry.  Independent Source Doctrine: applies to 4th. o Does not apply when the police would not have applied for the warrant but for the illegal search— then the warrant would be a fruit of the unlawful entry.  Later lawful seizure must be genuinely independent of an earlier. o If later acquisition was not the result of earlier entry  independent source doctrine should apply o Exclusionary rule would not put police in same position. M later gave truck to other drivers. but later obtained independently from activities untainted by the initial illegality.

saw druggies coming in and out w small packages and saw relevant activity w respondents’ automobiles. Santiago 84 . Leon [1984]**Objective analysis [Opinion: White] Facts: Confidential informant of unproven reliability told police two people were selling drugs @ their resident.” [Dissenting: Brennan. said he had witnessed a sale 5 months earlier. benefit is low o Application of the rule is restricted to areas where its remedial objectives are most efficaciously served  “Dissipation of the taint” concept: marks the point where detrimental consequences of illegal police action became so attenuated that the deterrent effect of ER no longer justifies cost.  Where PC is lacking. [Concurring: Blackmun]  4th is not a constitutionally compelled result of 4th.  Benefits: when officers act in objective good faith or transgressions are minor.  Preference for warrants—deference to magistrate’s determination o ER not designed to punish the errors of judges and magistrates—they don’t ignore/subvert 4th o ER will not have deterrent effect on issuing judge/magistrate  No stake in the outcome o Exclusion of evidence must alter the behavior of individual law enforcement officers or the policies of their departments. as a whole—not one particular agency o 4th condemns initial unconstitutional invasion of privacy and subsequent use of evidence  Invalid warrant = naked invasion of privacy  DC determined non of the Ds had no reasonable expectation to privacy in Via Magdalena location—no standing to object—suppression will not weaken Gov.  If good-faith exception to ER changes police compliance w 4th—court will have to reconsider  “the scope of the exclusionary rule is subject to change in light of changing judicial understanding about the effects of the rule outside the confines of the courtroom. Good Faith United States v.  4th does not forbid introduction of illegally seized evidence in all proceedings  ER sanction is imposed separately from 4th violation—not constitutionally bound o Weighed analysis of costs and benefits of preventing use in the prosecution’s case  Social costs of ER: interference w criminal justice system’s truth-finding so some guilty Ds go free/receive reduced sentences.’s case [Concurring in No. Holding: Evidence seized in good faith by officers reasonably relying on a search warrant issued by a neutral magistrate is admissible in the prosecution’s case in chief if it was objectively reasonable for the officer to believe the warrant was properly issued.  Suppression of evidence obtained pursuant to a warrant should be ordered on a case-by-case basis and only where exclusion will further purposes of the ER.3. Joined by Marshall]  Court is gradually abandoning ER—here allows use of illegally obtained evidence against the individual whose rights have been violated. a reasonable person in the circumstances would not believe there is likelihood for the search to produce evidence. 82-963 and Dissenting in 82-1771: Stevens]  Search/seizure cannot be both “unreasonable” and “reasonable”  If no PC—unreasonable  Framers meant to address the unreasonable issuance of warrants—concerned about overreaching warrants. Police got facially valid search warrant for houses and cars. Police started an investigation.  Bill of Rights restrains the power of Gov.

Holding: Officers violate 6th by deliberately eliciting information from D in post-indictment visit to his home absent presence of counsel or waiver of counsel. cops bring F to jail and Mirandize him. o Good faith analysis is objective o Does not suggest all recordkeeping errors by police are immune from ER  Circumstances: neighboring county’s sherriff-run database. Fellers v. After 15 mins. United States [2004] [Opinion: O’Connor] Facts: F was indicted and cops went to his house to arrest him.  When 4th violation occurs and search or arrest was unreasonable. H says statements in home should be suppressed as violation of 6th. turns also bc the database did not even belong to the county in which the arrest occurred. o Evidence is excluded if the magistrate abandoned his judicial role and lacks neutrality o Officer may not rely on a warrant issued by a magistrate based on wholly conclusory affidavit o Warrant is so facially deficient that the officers cannot reasonably presume it’s valid (Groh) Herring v. pulled him over. not first impulse  ER: police conduct must be sufficiently deliberate. cop checked for outstanding arrest warrants. Joined by Stevens. or grossly negligent conduct. or systematic negligence. ER does not apply to violation of 4th. and Breyer]  Application ER would discourage police error @ issue  Deterrence: thinks it would deter o Tort law: liability for negligence creates incentive to act w more care o Sherriff’s Dep’t is in the position to remedy the situation  By restricting suppression. Four situation where a reasonably well-trained officer would not rely on a warrant subsequently declared defective: o When magistrate issued warrant relying on info supplied by a cop who knew the statements in docs were false or disregarded truth. SILA found drugs and gun (felons cannot possess). reckless. does not necessarily mean exclusionary rule applies—last resort. H has no remedy  No incentive to maintain up-to-date records—officer wanted to arrest H and used records to make legit [Dissenting: Breyer]  Arizona v.  Does not matter if it’s an “interrogation” for 6th claims o Officers deliberately elicited information from F  Under Massiah: 6th attaches @ indictment o Officers actions violated 6th—no counsel or waiver  Elstad “fruits” analysis does not apply bc it’s not a 5th case Santiago 85 . United States [2009]**5-4 Decision [Opinion: Roberts] Facts: H went to get something from his impounded truck. that exclusion can meaningfully deter it o Must be worth the price paid by the justice system o Deters deliberate. as long as police reasonably relied upon court clerk’s recordkeeping—distinction btw judicial errors and police errors. and found there was one for H’s failure to appear on a felony charge. regardless of whether officers conduct constituted an investigation. Cop followed H. [Dissenting: Ginsburg. Holding: When police mistakes are the result of negligence. saying they came to discuss his involvement in drug distribution. Evans: held recordkeeping errors do not trigger ER. negligence was isolated. Also the court uses attenuated three times. not recurring. Souter. rather than systemic error or reckless disregard of constitutional requirements. and arrested him. F waives and reiterates earlier inculpatory statements. F says he used drugs w four people in indictment.

or (2) answers to legit questions put to him during cross-examination. o Only flagrant abuses come to the attention of the courts bc when officers find nothing incriminating. when they are taken away it cowers the population and puts terror in every heart.  Massiah right is a right to be free of uncounseled interrogation.S. and is infringed @ the time of the interrogation—was infringed here when State used jailhouse informant. o Violation started @ interrogation.  Introduction of illegally obtained evidence @ trial violates constitution. At trial. compounded @ trial o Damaging to adversarial process  Court is privileging the prosecution @ the expense of the Constitution  Prosecutor may introduce testimony that contradicts the D’s: (1) direct testimony. V tells an informant placed in V’s cell instructed to “keep [his] ear open and listen” for incriminating statements that he shot the man and robbed him. Joined by Ginsburg]  6th is violated when the fruits of the State’s impermissible encountered w D are used for impeachment. Court agreed.Kansas v. v. U.  When Q is unrelated to charged crimes. elicitation of statements w/out counsel or waiver is not unlawful— 6th is “offense specific”  Constitutional violation occurs when the uncounseled interrogation is conducted. assuring integrity of the trial process. V lied on the stand and blamed it on the girl. it is admissible for impeachment  Balancing test: o Interests: preventing perjury. Holding: Statement taken in violation of 6th right to counsel is admissible in trial for impeachment of D’s conflicting statement. o Costs: little deterrence—officers would not risk losing a properly obtained statement [Dissenting: Stevens.  Case is about the scope of a remedy for constitutional violation that already occurred: o Even though the obtaining of evidence was constitutionally invalid. there is no redress. While in jail. from other rights bc there is no way for individual to invoke advance protection (injunction) Santiago 86 . Ventris [2009] [Opinion: Scalia] Facts: V and girl rob and kill a man. Jones    Ex-post or ex-ante? Property trespass still applies Aggregation of data from someone following you Other remedies to 4A violations:  Bivens or 1983 action o Subject to officer’s qualified immunity Brinegar [Dissenting: Jackson]  4th freedoms are indispensible. State said statement could be let in for impeachment purposes bc D didn’t have the license to get on the stage and lie. just as it is when the fruits are use for the prosecutor’s case in chief. o Diff.

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