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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 secureagainst 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? Framers 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 Ds body (clothing) o Interior of Ds 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 Ds 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

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

[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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*Conversations are not persons, house, papers, or effects, so they are unprotected; the houses and offices from which the conversations arose are protected by 4th, but only from physical intrusions or trespasses; eyes and ears cannot search or seize, as neither can trespass; and the wiretaps used to listen (which can trespass) did not bc they were installed on telephone lines outside Os property.

Katz v. 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. Holding: The Governments activities in electronically listening to and recording Ks 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. 4th does not necessarily turn on constitutionally protected area and there is no general constitutional right to privacy. 4th protects people, not places.

o What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th Amend. protection. Pg. 18
K sought to exclude the uninvited earshut the door behind him, pays the toll entitled to assume the words he utters will not be broadcast to the world. 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. Marks the shift from property to privacy Cautious- 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. Person have exhibited an actual expectation to privacy (subjective) 2. 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. 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. Tapping telephone wires is modern day eavesdropping. Does not believe it is proper for the court to rewrite the Amend. to bring it into harmonies w/ the times o Court is rewriting 4th

***[Concurring: Harlan] Reasonableness Expectation of Privacy Test

[Dissenting: Black]

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Oliver v. United States [1984] Open Fields [Opinion: Powell]

Facts: Two police agents went to Os farm to investigate reports that marijuana was being raised. Officers drove past Os locked gate, No Trespassing sign, walked around the gate, and found a field of marijuana a mile from the home. In another case police followed an anonymous tip to Ts house, followed a footpath, found two marijuana patches, obtained a search warrant, and seized the marijuana. Holding: The governments intrusion upon open fields is not an unreasonable search proscribed by the text of 4th. 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. Indiv. may not legitimately demand privacy for activities conducted out of doors in fields, except the area immediately surrounding the home. Land is open to public in a way the home, office, or commercial structure would not be. Pub. and police may lawfully survey the land from the air Trespassed on land- 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 mans home. 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. Correct inquiry: whether the governments intrusion infringes upon the personal and societal values protected by 4th, NOT whether the individual chooses to conceal private activity. Gov.s intrusion on an open field is not a search bc it is a trespass in common law.

[Dissenting: Marshall, 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. officials. Landowners 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, conduct agricultural businesses, meet lovers, gather w/ worshippers, and used as a refuge for wildlife. Claim to privacy is strengthened by the fact that the claimant manifested to others his desire that they keep their distance. 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. Majorities rule will cause police officers to make on-the-spot judgments as to how far curtilage extends, and to stay outside the zone. Franks: freedom of movementto 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. o Announced prior to Katz, reaffirmed after Katz and Oliver

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

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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 mans indefeasible right of personal security, personal liberty, and private property. o Physical intrusiona trespassinto a constitutionally protected area o Olmsted: phone conversations are not protected as effects because they are intangible, therefore unprotected. The houses and offices are protected only by physical intrusions or trespasses. Post-Katz Analysis o Buried the trespass doctrine o What a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. o By shutting the door on the booth and paying the toll, K was entitled to assume his words would not be broadcast to the world. 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, legitimate, or justifiable (one that an ordinary person might possess) If either prong is lacking not a search Warren courts criminal procedure revolution Objective prong: o Site or nature of the property inspected 4th protects people, not places o Extent to which a person has taken measures to keep information, his property, 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. o Degree of intrusion Helicopter constitutes search depending on noise and dust disrupting legitimate activities.

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United States v. White [1971] Informant w/ wiretap=search [Opinion: White]

Facts: Gov. informant, J, wore a radio transmitter concealed on his person and transmitted to agents during conversations w/ W on 4 occasions in Js home, a restaurant, and Js car. Conversations were overheard by an agent in a closet in Js kitchen and by a 2nd agent outside the house w/ radio receiver. Holding: Recorded conversations w/ an informer are not protected by 4th. 4th does not provide protection to a wrongdoers misplaced belief that a person to whom he voluntarily confides in will not reveal it. o No warrant to search/seize is required Relies on Hoffa (1966)- false friend doctrine- no 4A protection for a wrongdoers misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. 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 officers memory o Court will not hold that a D who has no constitutional right to exclude informers unaided testimony has right to exclude a more accurate version of the events in question. No difference btw simultaneous recording w/ electronic equipment on the person or transmitting conversations elsewhere to other agents monitoring the transmitting frequency. One contemplating illegal activities should realize the risk that companions report to police.

[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 narrowlyFounders wanted to protect from an allpowerful government Uncontrolled surveillance will lead to a police state o Pre-arranged episode of surveillance, no excuse for not seeking a warrant o 4th was designed not to protect criminals but to protect everyones privacy. Pg. 48. Free discourse (1st value; also 4th, 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, given the values and goals of our political system Assess the nature of the practice and its likely impact on the individuals 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. o Fear to make basic social regards Warrants should be necessary.

[Dissenting: Harlan]

*Assumption-of-risk analysis of Hoffaa 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, a person knowingly exposes his thoughts to another, and, therefore, the public.) *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)

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False Friends: o A police informant or covert police agent insinuates himself into Ds confidence to get incriminating evidence. 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. o Not considered a search because of assumption of risk o When a person voluntarily speaks to another, the possibility is inherent in the conditions of human society that the listener is not whom he claims to be.

United States v. Miller [1976] Bank Records

Facts: In response to informants tip, sheriff stopped men and found distillery apparatus and raw material. Additionally, a warehouse fire uncovered illegal booze distillery. Bureau presented grand jury subpoena to Ms bank records. Bank made records available and did not tell M. 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. Documents are not private papers, 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. Subpoena to a 3rd party to obtain the records of that party does not violate rights of a D, even if a criminal prosecution is contemplated at that time. Individual assumes the risk

[Dissenting: Brennan]
Accused had a reasonable expectation of privacy in his bank statements and records, 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. 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. Franks: court equates privacy and secrecy . . . if it is not private, then it is not secret.

[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.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. No search occurs, therefore, if the bank hands over the customers financial records to the government.

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 Gs house. Officer asked trash collector to pick up bags in front of Gs house w/o mixing the contents w/ other houses garbage. Officer searched through garbage, found items indicative of narcotics use, and used items to get a search warrant for Gs home. After posted bail, officers conducted another trash search a month later. 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).

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Only violates 4th if respondents manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable. o Respondents exposed their garbage to the public --. Readily accessible to animals, children, scavengers, snoops, and other members of the public. P. 63 o Trash was put outside to convey to a 3rd party, 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. Society as a whole possesses no expectation of privacy w/ regard to garbage left for collection at the side of a public street. Notice: court does not say effects bc Katz got rid of that standard and moved to privacy.

[Dissenting: Brennan, joined by Marshall]

Scrutiny of anothers trash is contrary to commonly accepted notions of civilized behavior If respondents had been carrying the trash, it would have been protected. 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 Gs 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. guarantees a right of privacy in trash Possibility that unwelcome meddlers might open and rummage containers does not negate the expectation of privacy. 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. o Relinquishing possession or control over an effect relinquishing privacy expectation in it (Property rights). The aggregate of things found in an individuals trash reveal intimate details Franks: NOT a question of what people could do . . . i.e. G could have compacted trash and brought it to dump. Just bc someone could see certain things doesnt 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.). Might have a subjective claim, but fails objective bc of animals, children, scavengers. . . *No reasonable expectation of privacy in garbage NO SEARCH OCCURS *Court uses two search rules: 1. Katz and aerial surveillance: 4th does not protect information knowingly exposed to the public 2. One cannot have a reasonable expectation of privacy in information voluntarily turned over to others *Bc private persons might snoop, individuals have no constitutionally recognized reasonable expectation of privacy when and if the policenot private personsin fact snoop.

Dow Chemical [1986] Aerial Surveillance of a Company [Opinion: Burger]

Facts: DC has a 2,000-acre facility w/ covered buildings and manufacturing equipment and piping btw buildings exposed to visual observation from the air. 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. DC allowed one search by the EPA, but denied the second. EPA employed an aerial photographer to take pictures. Holding: Open areas of an industrial plant complex are not analogous to the curtilage of a dwelling, but are analogous to an open field observable by persons in aircraft lawfully in the public airspace. Therefore, the

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taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by 4th. 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. took photos to regulate, not compete w/ DC o Only photos taken w/ intent to use trade secrets may be proscribedno prohibition of photos taken by a casual passenger on an airline or a company producing maps for its mapmaking purposes. Industrial curtilage: o Gov. has greater latitude to inspect commercial property bc the owner enjoys the property differently than the sanctity of an individuals home. Com. Prop. Subject to regulatory inspections. o EPA employed a conventional camera used in mapmaking, 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.s capacity to intrude into private areas and activities. 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, must evaluate reasonable expectation to privacy DC has a reasonable expectation to privacy bc it has taken every feasible step to protect information o EPAs 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, Joined by Brennan, Marshall, and Blackmun]

*Not a search bc the EPA was not employing some unique sensory device that could penetrate walls of buildings and record conversations. 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). Aerial Surveillance: o Aerial surveillance by the gov. 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; and (3) does not reveal intimate activities traditionally connected w/ the use of a home or curtilage.

Florida v. Riley [1989] Aerial view by helicopter [Opinion: White, joined by Chief, Scalia, and Kennedy]
Facts: R lived on 5 acres of property w/ greenhouse 10 to 20 ft. behind the mobile home. 2 sides of greenhouse were enclosed; the other sides were obscured from view by tress, shrubs, and home. Greenhouse was covered by roofing panels, but had 10% of panels missing. Wire fence surrounded area w/ Do Not Enter sign. Anonymous tip of marijuana growth, so officers circled twice in a helicopter at 400 ft, saw through roof, obtained a warrant, and found marijuana. 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. Property is w/in curtilage Court relied Ciraolo where from an aerial 1000ft the court did not find a search, 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.

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o Private/commercial flight by helicopter is routine Does not matter that helicopter was at 400 ft. o Would be different if helicopter was flying contrary to law or regulation o Any member of the public could legally fly over Rs property and observepolice officer did no more Helicopter did not interfere w/ Rs use of greenhouse or other parts of curtilage (no wind, dust, noise, threat of injury)

[Concurring: OConnor]
Clarifies Ciraolo: court relies too much on compliance w/ FAA regulations whose purpose is to promote air safety, not to protect 4th. o Ciraolos expectation to privacy was unreasonable not bc the airplane was where it had a right to be, but bc public air travel at 1,000 ft. is a routine part of mod. life and its unreasonable for persons on the ground to expect their curtilage will not be observed. 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. airways at an altitude at which members of the public travel w/ sufficient regularity that Rs expectation of privacy from aerial observation was not one that society is prepared to recognize as reasonable. o Not conclusive that any member of public could legally fly over Rs property at 400 ft. or that police helicopters may often fly at 400 ft. If the public can generally be expected to travel over residential backyards at an altitude of 400 ft. no reasonable expectation that curtilage is free from such aerial observation There is considerable public use of airspace at altitudes of 400 ft., so R did not have reasonable expectation that his curtilage was protected from naked-eye aerial observation. Does not believe one knowingly exposes an area to the public solely bc a helicopter may legally fly above it. 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. Just because someone could doesnt mean the will Helicopter is not like standing on a public road and vantage point is not one that any citizen could readily share. 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, 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. Hicks). *Dissent is saying it goes against Katz. *Suggests that the D must provide facts that would support the claim that his expectation of privacy was reasonable.

Surveillance by Helicopters o Florida v. Riley: officer observed marijuana plants from 400 ft., which was lawful for helicopter flights. Held: not a search. D knowingly exposed his greenhouse to the public bc any member of the public could legally have been flying over Ds property in a helicopter at the altitude of 400 ft. and could have observed his greenhouse. Santiago 13

Plain View Doctrine

Would have been different if helicopter was flying below law or regulation. Flying overhead did not reveal intimate details connected w/ the use of the home or curtilage and there was no undue noise, wind, dust, or threat of injury.

Arizona v. Hicks- shots fired, Cops lawfully come to investigate. Saw expensive stereo equipment and recorded serial numbers. Cops had to pick up some. No search as to those they didnt touch.

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United States v. Jacobsen [1984] Search by 3rd Party [Opinion: Stevens]

Facts: FedEx employee saw a forklift damaged package, so he opened the package and examined it to look at contents pursuant to company policy. Inside was a tube, which manager cut open and found zip-locks w/ white powder and notified DEA. Box was put back together, DEA agent reopened and did a field test to determine it was cocaine. Second field test was conducted, package was rewrapped, and DEA got a search warrant for the place to which it was addressed. Holding: Federal agents did not violate any constitutionally protected 4th privacy interest that had not already been frustrated as the result of private conduct. The possessory interest infringement was de minimis and constitutionally reasonable. Wrapped parcel is an effect w/in 4th (letters and other sealed packages) Reasonableness of invasion of citizens 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 Rs privacy: o Removed tube from box, removed plastic bags from tube, and removed trace of powder o Chemical test of powder When agent saw package, he knew it contained white powder. Contents would not tell him anything more than he had already been told. o Agent was avoiding risk of flaw in employees 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, not a search w/in 4th Agents dominion and control was a seizure, 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, would not tell anything more o Sniff test analogynot a search bc it is less intrusive and only discloses presence or absence of narcotics. o Did affect Rs possessory interests bc it destroyed a quantity of powder Must balance the nature and quality of the intrusion on 4th against importance of gov. interests destruction of powder during field test was reasonable (substantial gov. 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, it does not justify a warrantless examination of its contents. Fact that a private party has searched has never been used to legitimize gov. conduct Majoritys opinion would allow gov. agents to commit searches they previously would not havehuge 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. 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, joined by Marshall]

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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. *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.

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Chapter 3: Seizures

Unless the police action is a seizure, the various restrictions of the 4th Amend. do not apply. 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. Personal seizures: reasonable suspicion. Property: o Seizure of property invades a persons possessory interest in that property. o Tangible property is seized when there is some meaningful interference w/ an individuals possessory interests in the property. Persons: o Arrest of a person constitutes a seizure of that person o When an officer, by means of physical force or show of authority, terminates or restrains a persons freedom of movement through means intentionally applied. o A reasonable person would have believed that he was not free to leave Terry Stops o Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred. o A person is seized when the officer either terminates or restrains the individuals freedom of movement through means intentionally applied. 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. only if, in view or all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. o Implication: subjective intention of the police officer to forcibly detain a suspect is irrelevant. Reasonable Person o Presupposes an innocent person o Court evaluates on the assumption that the individual has nothing illegal to hide. California v. Hodari D. 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. No seizure when cops chases down an individual unless cop uses force (weapons, 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; dont 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

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California v. 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, saw 45 youths huddled around a car. Youths ran away, officers gave chase, H tossed a small rock (coke), and officer tackled/handcuffed H. Issue: whether H was seized w/in meaning of 4th when he dropped the crack rock. If so drugs were fruit of seizure and evidence is excluded; if not drugs were abandoned and lawfully recovered by police. Holding: There is no seizure merely by the showing of authority bc the suspect did not yield. He was seized when tackled. Crack rock was abandoned, found on the ground, and admissible. 4th Amend. meaning: grasping or application of physical force w/ lawful authority, even if its 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, then coke a fruit of that seizure and must be excluded If after, 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, 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). o Only if language, not whenever. . . necessary clause, but not sufficient for seizure. 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, joined by Marshall] If the officer touched H before he dropped rock, even if he did not subdue him, 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. Mendenhall: reasonable person standard keeps w/ 4th case law Court concludes the timing of the seizure is governed by the citizens reaction, rather than officers conduct o Interests would be better served w/ adherence to a standard that allows police to determine in advance 4th implications, 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 officers show of authority and complete submission by the citizenofficer can order person to freeze, w/out reasonable suspicion of wrongdoing in hope that during the pursuit the citizens response will give police a legitimate basis to seize the individual. *Changed Terry-Mendenhall standard for pursuit-seizureperson has been seized only if, not whenever a reasonable person would have believe that she was not free to leave. T-M test states a necessary, but not a sufficient, condition for seizure effected through a show of authority. *Two ways a police officer can seize a person: use of physical force or show of authority. Not enough for policeman to say Stop, in the name of the law! A seizure requires either physical force . . . or, where that is absent, submission to the assertion of authority. *SUBMISSION TO AUTHORITY = SEIZURE

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United States v. 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. Officer went up to Rs, showed a badge, asked to search luggage, completed search w/ permission, and found no contraband. Officer noticed Rs were wearing baggy pants and heavy jackets in the warm weather, which indicated concealing weapons/narcotics in officers experience. Asked to check person, Rs consented and officer found drugs in legs. Officer did not inform Rs of their right to refuse to cooperate. Issue: Whether officers must advise bus passengers during encounters of their right not to cooperate. Holding: Totality of the circumstances must control. In this case there was no search/seizure and the consent was voluntary, so the searches were reasonable. Bostich allowed cops to approach bus passengers and ask random qs so long as reasonable person felt they were free to go Officers may ask questions, ask for I.D., and request consent to search luggage w/o individualized suspicion as long as they do not use coercive means. If a reasonable person would feel free to terminate encounter, 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 reqd to answer officers question No touching weapon or intimidating movements Aisle was free for exit Spoke in a polite, quiet voice If it was on the street would have been constitutional, 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, consent was voluntary searches were reasonable

[Dissenting: Souter, 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. Police preferred cooperation but would not let the lack of it stand in their way the scene was one of obligatory participation, no reasonable person would think free to ignore police altogether. 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, requires more than cops to request your compliance in quiet tone of voice

*When police question an individual about suspected criminal activity, brief questioning in a public place by itself does not constitute a seizure. 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. *Police do not need individualized suspicion as long as they do not induce cooperation by coercive means. *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.

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Brendlin v. California [2007] Seizure of a passenger in a car [Opinion: Souter]

Facts: Officers saw a car w/ expired registration tags, phoned dispatcher, and learned renewal was being processed. Later officers saw the car was legal through Nov., but pulled it over to verify permit matched the vehicle. Officer recognized passenger, B, recalled he was parole violator w/ outstanding arrest warrant, and called reinforcements. B opened and closed the door. Officer ordered B out of the car at gunpoint, declared him under arrest, searched him, and found syringe cap. Patdown search of driver found syringes and plastic bag of drugs, so she was also formally arrested. Officers searched car and found tubing, scale, and other meth stuff. B argued officers lacked probably cause/reasonable suspicion to make traffic stop. Issue: When a police officer makes a traffic stop, is the passenger of the car seized w/in the meaning of 4th? Holding: Yes, passenger is seized as well and so may challenge the constitutionality of the stop. Person seized when the officer by physical force or show of authority restrains his freedom of movement. o Unintended person may be the object of the detention as long as detention is willful and not the consequence of an unknowing act. o Must be actual submission When ambiguous turn to Medenhall test Seizure occurred when car came to a halt Whether a reasonable person in Bs position when the car stopped would have believed himself free to terminate the encounter b/w police and himself.

DRAYTON ARGUMENT! This case is a CARDrayton 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.

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. Pg. 123

Chapter 4: Probable Cause

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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 communitys protection. Gen. Const. principles: o Text of 4th provides that arrest and search warrants may only be issued if supported by probable cause. o All arrests require probable cause o Probable cause is the default position for searches and seizures of property. Exists when the facts and circumstances w/in an officers personal knowledge, 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; and o In the case of a search, a specifically described item subject to seizure will be found in the place to be searched. Objective concept o However, in determining what a person of reasonable caution would believe, the court takes into account the expertise of the officer. Probable cause warrant o If no warrant, then court is called on to determine whether officers actions were reasonable. Whren v. United States: subjective intentions play no role in ordinary, probable-cause analysis. 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 informants tip. Probable cause is a fluid concept

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Brinegar v. 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. B sped up as he drove by. Officers gave chase, overtook him, and crowded his car to the side of the road. Officers asked if B had liquor in the car and B said Not too much and later admitted he had 12 cases. Officers placed B under arrest and seized liquor. Holding: Agent had good ground for believing B was engaged in illicit liquor running/dealing evidence is admissible on the issue of probable cause. Probable cause exists where the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed. Carroll: under 4th a valid search of a vehicle moving on a public highway may be had w/out a warrant, but only if probable cause for the search exists. o Similar to Carroll: automobile moving on a public highway, w/out warrant officers patrolling highway, officers recognize the driver and the car, and driver was heading in direction from a known source of liquor supply toward a probable market. o Different from Carroll: C offered to sell liquor to agents through direct conversations, this case is observation and hearsay; C in Detroit, a known center for illegal importation and distribution, here OK illegal market known to officer. Officer had personal knowledge from direct observation that B used MO as a source of supply on other occasions. o Joplin, MO was a ready convenient and probable place for persons to violate OK law. o Officer personally observed Bs use of liquor dispensing est. in Joplin (Direct evidence) o OK was a dry state, MO was wet probability B was using highway for forbidden transportation. o MOST IMPORTANT: Officer observed Bs recent activities established that he was so engaged loading liquor 6 months prior to search, arrested B for same crime. Probable causes exists when there is reasonable ground for the belief of guilt o Allows officers to do their job, but leaves room for the mistakes of reasonable men. Not suspicion! It was a car, 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.

Brinegar [Dissenting: Jackson]

4th freedoms are indispensible, when they are taken away it cowers the population and puts terror in every heart. o Only flagrant abuses come to the attention of the courts bc when officers find nothing incriminating, there is no redress. o Diff. 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. o Carroll gives blanket authority to officers to stop and search cars on suspicion o Drawing upon his experience prosecuting Nazi Germanyprotections differentiate an open society from a totalitarian one. No probable cause up to the time the car was put off the road and stopped.

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Draper v. 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. H said D was peddling narcs, would be @ train station morning of Sept. 8th or 9th. H described Ds clothing, said he would be carrying a tan zipper bag, and that he would walk real fast. On 9th officer saw person fitting description, stopped and arrested him, and searched his person to find two heroin envelopes and a syringe. 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. Officer had probable cause and reasonable grounds to believe D was violating narc laws, which justify his arrest w/o a warrant. o Hs info was hearsay, but he was employed for that purpose and was accurate/reliable in the past Officer would have been neglectful not to pursue it. o When man fit description info was verified, 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 4thif arrest is made w/out a warrant, 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. 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. In law it is good or bad when it starts and does not change character from its success. Pg. 144.

Maryland v. Pringle [2003] PC of an arrest [Opinion: Rehnquist]

Facts: Car stopped for speeding. When driver went into glove box for registration, officer observed a large amt of rolled up $. Driver consented to a search of the vehicle and officer found cash in the glove compartment and coke btw armrest and back seat. 3 men in car denied ownership, so the officer arrested all of them. P waived Miranda rights and gave oral/written confession that the coke belonged to him and he intended to sell the coke for sex. P also claimed other occupants did not know about drugs. Holding: Officer had probable cause to believe that P had committed crime, therefore, arrest was consistent w/ 4th and 14th. Probable cause to arrest an individual examine the events leading up to the arrest and decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause. o Reasonable inference that all three occupants had knowledge of and exercised dominion and control over the coke. o Reasonable officer could conclude there was probable cause to believe P committed crime, 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.

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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 Aguilars 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 informants predictions and the facts known to officer o Cast doubt on informants hypothesis o Made Gs 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]

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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 Rs 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

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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 Ps 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 mans 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.

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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 individuals 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 persons 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 abusepolice could search the homes of all the individuals friends Search warrant requirement will not significantly impede law enforcement efforts o Necessary situations are few bc arrest warrant will suffice to enter a suspects 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 partys 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 partys 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]

*** Schrdinger's cat- in situations of uncertainties, we dont know until we actbefore

we act we dont know if the suspect is guiltybefore searching or seizing we dont 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

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Chapter 6: Searches and Seizures Without Probable Cause

Default is supposed to be probable cause but reality is reasonableness o Degree of intrusion vs. gravity of investigated offense Exceptions to probable cause o Terry Stops o Special needs o Consent
Not a full stopjust a mere inconvenience (no seizure) Test is REASONABLENESS o Determined by a balancing of government and citizens interest Citizen interest- right of privacy, right to not be harassed/profiled Government interest- 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, to the view that the appropriate test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. 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. Police may conduct searches on less than probable cause and instead on reasonable suspicion For the first time, 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. o Only when the officer by means of physical force or show of authority, has in some way restrained the liberty of a citizen has a seizure occurred. Warrant Clause not necessary to a stop-and-friskbased on the reasonableness in all the circumstances of the particular governmental invasion of a citizens personal security. o Whether the officers action was justified as its inception, and whether it was reasonably related in scope to the circumstances that justified the interference in the first place. Balancing the need to search or seize against the invasion which the search or seizure entails.

A. Terry Stops

When do Terry problems arise? When police dont want to make an arrest; just want to briefly detain When officers are out patrolling rather than investigating. Whats 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. He can briefly detain suspect to make inquiries. (2) Reasonable suspicion based on obj. facts that the indiv. is involved in criminal activity (PC not reqd) Protective Frisk (search): Once officer conducts a stop, may conduct a carefully limited search of outer clothing of suspect to discover weapons. o Limited frisk or pat down is a reasonable search. o Any weapons seized may be admitted as evidence. Vehicle stop: also may apply to allow officers to stop a car. Suspect & passengers reqd to leave car. Once officer conducts justified stop of car, may also req. passengers/drivers to leave car if its a legitimate safety measure. Three types of encounters: Conversation: (no stop) no justification reqd Stop (but not arrest) reasonable suspicion necessary Arrest PC necessary

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What constitutes a stop? Unclear from Terry and other cases what interference constitutes a stop under the 4th But for an investigative stop, must have reasonable suspicion (lower standard than PC) Terry v. Ohio Stop: Brief stop & frisk of a person whose behavior an officer reasonably considers suspicious & dangerous. Test: Whether a reasonably prudent man in circumstances would be warranted in the belief that his safety or that of others is in danger. Reasonable Suspicion: Police routinely engage in activity that does not reach the level of full-scale intrusion reqing PC; lesser intrusions range from conversations with people, routine citizen stops & brief traffic stops in order to question. 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. How is reasonable suspicion evaluated? Totality of the Circumstances Test: to evaluate basis of reasonable suspicion, consider cops experience in light of all other factors that formed the suspicion Reasonable suspicion for stop: Where cop observes conduct that, in light of the TOTC, would lead to formation of an objectively reasonable suspicion that the subject is planning or carrying out illegal activity, 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, that the suspect is armed and dangerous, the officer may conduct a frisk limited in scope to searching for weapons. o Government vs. Individuals interest o Terry search is limited to scope & duration: must look in areas where a weapon may be found. The search has to be brief, of limited scope

Terry v. Ohio [1967] Stop-and-Frisk [Opinion: Warren]

Facts: Officer patrolling saw two men who did not look right to him. He watched them each walk down the road, look into the window, and turn back 5-6 times each. Officer suspected them of casing a job and feared they may have a gun. Officer approached the men, identified himself, and asked for their names. One man mumbled something, so officer grabbed T, spun him around, patted him down, and found a pistol in his pocket. Officer ordered all three men to face the wall, patted them down, and took them into the station where 2 of the men were charged w/ carrying concealed weapons. Holding: Where the police officer has reason to believe he is dealing w/ an armed and dangerous individual, regardless of PC for arrest, the officer can conduct a reasonable search for weapons. The officer need not be absolutely certain that the individual is armed, 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. Must be based on specific reasonable inference which he is entitled to draw from the facts in light of his experience. 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

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Right of a police officer to make an on-the-street stop, interrogate, and pat down for weapons, stop and frisk o Constitutes a seizure whenever a police officer accosts an individual and restrains his freedom to walk away. 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 Search/Seizure: (1) Was the officers 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 officers conduct: o Balancing the need to search (or seize) against the invasion which the search (or seizure) entails. o Governmental interest versus private interest Gov.: effective crime prevention and detection; 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, it is unreasonable to deny officer the power to take measures to determine whether the person is carrying a weapon. 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, 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. o If reasonable frisk must be immediate and automatic

[Concurring: White]
Person approached may refuse to cooperate and go on his way Temporary detention, warranted by the circumstances, 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, 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]

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Adams v. Williams [1972Habeas Case] Stop-and-frisk based on informant tip (reliable) [Opinion: Rehnquist]
Facts: Known informant told off. patrolling high-crime area at 2 a.m. that a nearby driver was carrying narcotics and had a gun. Off. called for assistance, tapped the car window, and asked driver to open the door. W rolled down the window instead, so off. reached in and removed loaded gun from Ws waistband. Gun was not visible, but was in the place indicated by informant. Search incident to arrest found heroin on Ws person and a machete and revolver in car. W claims initial seizure was not justified by informants tip bc it lacked reliability or corroboration. Holding: Off. justifiably responded to informants tip and search was reasonable to insure his safety, therefore, reasonable cause for a stop-and-frisk. Terry recognizes that a brief stop of a suspicious individual may be reasonable in light of the facts known to the officer @ the time. o So long as the officer is entitled to make a forcible stop and has reason to believe the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose Off. acted justifiably in response to informants tipinformant provided info in past, came forward personally and was immediately verifiable @ the scene (CT law for immediate arrest upon false complaint). Stop-and-frisk not limited to officers personal observation Circumstances of investigation justifysitting alone in car parked in high crime area @ 2, W did not comply w/ off.s request to step out. o Under these circumstances, the off.s action was a limited intrusion designed to insure his safety, and therefore, reasonable. Arrest supported by probable cause, search of person and car incident to arrest was lawful. [Dissent: Douglas, 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, it will open the channel for the erosion of the protection of the 4th Amend. [Dissent: Marshall, joined by Douglas] Warrantless searches are the narrowly drawn exception, 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. It held that there must be specific facts to conclude that an individual is involved in criminal activity and is armed and dangerous. Officer did not know about the scene: how long D was in car, who the car belonged to, whether the gun was carried legally, what kind of narcotics, or the basis of the informants knowledge. 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.

Florida v. J.L. [2000] Anonymous tip stop-and-frisk [Opinion: Ginsburg]

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Facts: Anonymous caller reported to police a young black male @ bus stop in plaid shirt carrying a gun. Off. arrived and saw 3 black males, 1 w/ plaid shirt, but had no other indication of illegal conduct. Off. approached JL and told him to put his hands up, frisked him, and seized gun. Holding: Anonymous tip that a person is carrying a gun w/out more is insufficient to justify a police officers stopand-frisk of that person. 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. tip is corroboratedsufficient 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. o Accurate description of subjects observable location does not show knowledge of criminal activity Open to abuse by anonymous harassers Decision limited to cases in which the officers authority to make the initial stop is at issue, not when off. accords w/ Terry to conduct a protective search of a person who has been legitimately stopped. [Concurrence: Kennedy, Joined by the Chief Justice] Anonymous tips w/ similar voices can gain credibility

Illinois v. Wardlow [2000] Reasonable suspicion [Opinion: Rehnquist]

Facts: Off. drove a caravan to a high-traffic area. W was holding an opaque bag, saw the officers, and fled. Off. caught W and patted him down for weapons (in experience it was common for narcs to be in vicinity). During frisk, Off. found handgun in bag. Holding: Officer is justified in making a determination of reasonable suspicion based on commonsense judgments and inferences about human behavior. Individuals presence in a high crime area is not enough particularized suspicion to believe that person is committing a crime. o Officers can use totality of the circumstances to see if further investigation is warranted: Unprovoked flightcases have noted nervous behavior is pertinent Determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. 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. [Concurring in part, dissenting in part: Stevens, joined by Souter, Ginsburg, and Breyer] Accepts the rejection of per se rules but disagrees w/ conclusion that Off. had reasonable suspicion to stop W. Factual inconsistency of Off. no reasonable suspicion o Nothing suspicious about carrying a bag, the time of day, or a call for suspicious activity. o Flight + High Crime Area Reasonable suspicion Character of the neighborhood makes inference of guilt less appropriate, blacks think its dangerous to talk to police.

Minnesota v. Dickerson [1993] Scope of a patdown

Facts: Off. saw D leaving a crack house, D spotted the police car, abruptly stopped, and began walking the opposite way. Off. ordered D to submit to patdown, found no weapons, but found a small lump in jacket, examined it, and retrieved it. Holding: Police may seize contraband detected through the sense of touch during a patdown search, so long as the search stays w/in the bounds marked by Terry. Off. never thought the lump was a weapon and did not know it was cocaine, only determined after he manipulated the pocket unlawful.

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If police officer lawfully pats down suspects outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there is no invasion of suspects privacy beyond that already authorized by officers search for weapons. o If object is contraband warrantless seizure is justified by plain-view considerations. Continued exploration of Ds pocket after determining there was no weapon amounted to an evidentiary search. Officer was lawfully in the position to feel the lump in Ds pocket (under Terry), but not to determine the incriminating character of the object. o Off. conducted a further unauthorized search. Plain touch v. manipulation

[Concurring: Scalia] Disagrees w/ mode of analysis in Terry, but thinks it got the right result. Frisk only if reasonably believe armed and dangerous No probable to search here Assuming the search was lawful, agrees w/ the opinion of the Court that any evidence incidentally discovered in the course of a lawful search is permissible.

B. Consent Searches
Validly obtained consent allows for a warrantless search (w or w/out PC) Opens doors to a vast number of searches Waives- by consenting person waives righto be free from unreasonable searches and seizures Non-search- 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. Bustamonte [1972] Voluntariness of Consent [Opinion: Stewart]

Facts: Off. pulled over vehicle w/ lights burned out. 6 men inside car, passenger gave permission to search, off. found stolen carwash checks. Holding: Voluntariness of consent is a question of fact to be determined from all the circumstances, and while the subjects knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. Voluntariness: must look to the totality of all the surrounding circumstancesboth the characteristics of the accused and the details of the interrogation. o Factors: youth, lack of education, intelligence, advice of constitutional rights, length of detention, repeated/prolonged nature of the questioning, and use of physical punishment. o Question of fact No duress, 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, not who can consent. Narrow holding. This Courts decisions reflect a frank recognition that the Constitution requires the

sacrifice of neither security nor liberty. The Due Process Clause does not mandate that the

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police forgo all questioning, or that they be given carte blanche to extract what they can from a suspect. Pg. 301.
Court looks at overborne will

[Dissenting: Marshall] Court misstates the true issuewhether a statement of assent to search is sufficient to permit the police to search and relinquish Acalas constitutional right to exclude police. No sane person would knowingly relinquish a right to be free of coercion Knowing choicecannot make a decision w/out knowing the available alternatives Majoritys practicality is capitalizing on the ignorance of citizens by getting them to relinquish rights o More criminals would be apprehended, but police would be disregarding the Constitution Franks: Majority is saying we would rather people be ignorant bc it helps law enforcement

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United States v. Matlock [1974] Consent by a 3rd party [Opinion: White]

Facts: M was arrested outside of his home. Off. went to the door, and was admitted in by G. G consented voluntarily to the search of the house and the east bedroom which she jointly occupied w M. Holding: Voluntary consent of any joint occupant of a residence to search the premises jointly occupied is valid against the co-occupant, permitting evidence discovered in the search to be used against him at a criminal trial. Voluntary consent is not limited to consent by the defendant, 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. Remand to DC to reconsider the sufficiency of the evidence.

Illinois v. Rodriguez [1990] Apparent Authority Doctrine [Opinion: Scalia]

Facts: Rs gf let cops into Rs apartment, where they found drugs in plain view and arrested R. GF did not actually live there, had actually moved out weeks earlier but had called the apartment ours and said she had clothes/furniture there. Holding: A warrantless entry is valid when based upon the consent of a 3rd party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not. Burden on State to show common authority o Here GF moved out a month before, never invited friends there, and never was there w/out R. o Name was not on lease, did not pay rent, and had stolen the key. o Therefore, no joint access or control 4th protects whether searches are unreasonable. 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. 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 authorityok Franks: Apparent Authority Doctrine: it is sufficient if consent is given by someone w/ merely apparent but not actual authority (rejected in Stoner). [Dissenting: Marshall, 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 warrantexceptions serve compelling law enforcement goals (exigency), departure not justified by off.s misguided belief in 3rd party. Probable cause only subject to narrow exceptions Apparent authorityerodes 4thonly the petition can waive by word or deed Majority ignores expectation to privacy, which individuals are entitled to rely.

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C. Special Needs Searches

Any search made by government for any reason other than criminal law enforcement. 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. Is it a Closely Regulated Business? o 2. 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 Citizens Interests: Privacy Property Nature of Intrusion Factors considered: law enforcement involvement in police/execution, regulated activity, notice (consent), individual suspicion (profiling concerns), police discretion, and whether the results are turned over to law enforcement.

1. Administrative Searches New York v. Burger [1987]

Facts: Two off. entered Bs junkyard to conduct an inspection pursuant to NY Vehicle Law. B said he did not have a police book and did not object to an inspection. B was charged w/ possession of stolen prop. and unregistered operation as a vehicle dismantler. Holding: In situations of special need, where privacy interests of owner are weakened and the government interests in regulating particular bus. are heightened, a warrantless inspection of commercial premises may be reasonable w/in meaning of 4th. Owner/operator of closely regulated industry has reduced expectation of privacy o Lessened application of the warrant/probable cause req. Special Need: where privacy interests of the owner are weakened and the gov. interests in regulating are heightened, a warrantless inspection of commercial premises may be reasonable w/in meaning of 4th. 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 NYlicense (registration and fee), police book, and availability for inspection by police or any DMV agent. 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, he would change business to conform to regulations Regulation serves States interest: theft can be controlled by controlling the receiver of, or market in, 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 basisnotice o Time, place, and scope are limited

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Administrative statutes and penal laws may have the same ultimate pupose of remedying the social problem, 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; administrative = rules to guide operators conduct of business Court declines to make states carry out statutes w/ special agents instead of police

[Dissenting: Brennan, joined by Marshall and OConnor] 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, place, and scope. However, vehicle-dismantling business is not CRBadministrative warrant was req. for search o Search was only for evidence of criminal wrongdoing o Vehicle dismantling easy business to join (register and pay fee) If its a CRB most NY businesses are Even if CRB, 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 States 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.

2. Students, Probationers, and Public Employees National Treasury Employees Union v. Von Rabb [1989] Suspicionless Searches [Opinion: Kennedy]
Facts: Commissioner implemented drug tests for certain positions w/in Customs, which were a condition of placement/employment for jobs in three criteria: (1) direct involvement w/ drug interdiction; (2) incumbents carrying firearms; (3) handling classified material. Holding: Gov.s need to conduct suspicionless searches required by the Customs program outweighs the privacy interests of employees engaged directly in drug interdiction, and of those who otherwise are req. to carry firearms. Program does not serve ordinary needs of law enforcement test results cannot be used in a crim pro w/out employees consent. Not intrusive test Purpose of program: to deter drug use among those eligible for promotion o Substantial interestpresents a special needdeparture from warrant/probable-cause reqs. In certain circumstances, Gov.s need to discover/prevent conditions justify intrusion of privacy by searches w/out individualized suspicion. 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, over 10 billion people/bags searched, only 42,000 firearms found. Low incidence of conduct does not impugn the validity of the scheme, but indicates a hallmark of success. Court rejects contention that most employees tested are innocent Reasonableness: Gov.s interests in preventing the promotion of druggies > privacy interests of individuals [Dissent: Scalia, Joined by Stevens] Issue is about the steps taken to detect drug use o Execratory function traditionally shielded by privacy, monitor listening, handing over pee for analysissearch destroys privacy and offends personal dignity. Citizens interest is far more imporrtant Opinion does not connect frequency of drug use or likelihood of harm o Implausible speculation

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o Not clear the urine tests will prevent impaired perception and judgment Majority quotes Brandeis: For good or for ill, [our Government] teaches the whole people by its exampleactually mocking Gov. action when the ends justifies the means Franks: Cannot take the gov.s word for the implications of the search. All the horrible things the gov. is worried about never happened. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but w/out understanding

New Jersey v. T.L.O. [1985]**Limited to searches by S. Officials acting alone

Facts: Teacher found girls smoking in b-room. Brought TLO to principals private office, where she denied allegations. Principle opened the purse, found cigs, reached further and saw rolling papers, and proceeded w/ a thorough search finding pot, pipe, bags, bills, and implicating dealing letters. Principal turned letter over to police, TLO confessed on basis of evidence seized, and TLO was brought up on delinquency charges. Holding: (1) School officials need not obtain a warrant before searching a student who is under their authority; (2) Under reasonableness of the circumstances, the search was justified under 4th. 4th prohibition of unreasonable searches/seizures applies to public school officials. o Teachers and school administrators act in furtherance of publicly mandated educational and disciplinary policies of the State, not merely in loco parentis cannot claim parents immunity o Agents of the state School discipline v. student privacy Standard of reasonableness: Balancing the need to search against the invasion in which the search entails. (1) Individuals 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.s need for effective methods to deal w/ breaches of public order Schools interest: maintaining order in the classroom; deterring drug use and violent crime (has become major problem). Warrant req. is unsuited for schools Level of suspicion needed to justify search: reasonableness, under all the circumstances, 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. Search was reasonable: o TLO accused of smokingpossession 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 cigscommon sense conclusion about human behavior which practical people are entitled to rely. Only needs sufficient probability, not certainty o 2nd search for pot: rolling papers gave rise to reasonable suspicion, therefore, 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.

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Distinguish btw law enforcement and teacher/student: law enforcement are adversaries of criminal suspects; commonality of interests btw teachers and pupils.

[Concurring: Blackmun] Court omits crucial step in analysis: only exceptional circumstances, in which special needs beyond law enforcement make the warrant/probable-cause req. impracticable, can the court use balancing of interests over Const. right. Elementary/Secondary school setting = special needs [Concurring in part, dissenting in part: Brennan, 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. It requires that the authorities must obtain a warrant before conducting a full-scale search. Gov. must have special interest to justify exception to warrant req.exigency o Exists in this case: teacher/principal could not protect students safety if req. to wait for warrant. Disagree: disregard to probable-cause standard (textually supported! Unlike balancing) o Balancing test is flawed in its inception and execution o 2nd search was invalidbased solely on presence of cig papers, therefore, fruits of illegal search should be excluded. Franks: this was a full-scale search, not a protective search, so how can you use reasonableness? [Concurring in part, dissenting in part: Stevens, joined by Marshall and Brennan in I] Court inappropriately reached out to decide a constitutional questionholding will permit school admins to search students suspected of violating the most trivial school regs. Pet. for cert. did not raise Q of whether the purse search violated 4th, only whether exclusionary rule applies to schools. o Application of exclusionary rule in crim pro arising from illegal school searches makes an important statement to young people that theres consequences for violation of constitutional rights. o Schoolroom is the first opportunity to experience the power of government

Board of Educ. v. Earls [2002] Suspicionless testing for drugs [Opinion: Thomas]
Facts: Student Activities Drug Testing Policy req. all students who participate in competitive afterschool activities to submit to drug testing. Testing is random and students must agree to be tested @ any time upon reasonable suspicion. Test does not detect medical conditions/authorized prescription meds. Holding: The policy reasonably serves the School Districts important interest in detecting and preventing drug use among its students, therefore, it is constitutional. Veronia v. Acton: Court held suspicionless drug testing of athletes was constitutional. 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. o Students who participate in competitive extracurricular activities voluntarily subject themselves to same intrusions of privacy as athletes. (communal undress) Character of the intrusion: o Manner of production: faculty monitor listens to pee sounds, pours into bottles, and is done behind a closed stallnegligible intrusion o Tests are kept confidentialneed to know basis o Tests not turned over to law enforcement o Failed drug test limited privilege of participation; 3rd failure suspended from participation Nature and immediacy of the Gov.s concern and the efficacy of the Policy in meeting them o Nationwide drug epidemic

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o Specific drug use @ Tecumseh schools o Von Raab: can be done on a purely preventative basis, does not need real and immediate interest Policy is a reasonable means in preventing and deterring drug use.

[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, Joined by OConnor, Stevens, and Souter] Veronia emphasized inc. risk of sports related injury w/ athletes and athletes were leaders of drug culture. Here: non athletes drug use is not major Rejects idea that student voluntarily subject themselves to testingextracurrics are part of educational program; key component in school life/applying for college. Schools educate the young about Constitutional freedoms

Ferguson v. Charleston [2001] Uninformed searches [Opinion: Stevens]

Facts: State Hospital staff worried about crack baby epidemic, began to order drug screens of urine samples from suspected maternity patients. If positive, then referred to sub. Abuse commission for counseling/treatment. Task force created to implement Policy M-7 if met one or more of nine criteria, which involved law enforcement notification and arrest. Holding: A state hospitals performance of a diagnostic test to obtain evidence of a patients criminal conduct for law enforcement purposes is an unreasonable search if patient has not consented to the procedure. The interest in using the threat of criminal sanctions to justify preg. women from using coke cannot justify a departure from rule that nonconsensual search is unconstitutional w/out a warrant. scope of administrative searches (draws the line)- any search that is at its inception for law

enforcement purposes is not allowed. These tests were administered for police purposes to lock up these women. Nurse was racist.
Immediate objective of the searches: to generate evidence for law enforcement purposesto reach goal of substance abuse treatment/getting preggers off drugs. o Cannot justify ultimate purpose w/ immediate purpose o Evidence was taken for the specific purpose of incriminating patientspatients must be fully informed of constitutional rights to constitute waiver. Gravity of threat cannot evade 4th prohibition against nonconsensual, warrantless, and suspicionless searches. Franks: big deal in this case is lack of consent o Distinction btw a dr.s test and the only reason to conduct the test is for law enforcement.

[Concurring: Kennedy] Majority lacks foundation in special needs cases: o Usually turn on policys ultimate goal, rather than proximate purpose Sanctions use of law enforcement in the policy since the inception o Penal character [Dissenting: Scalia, Joined by Chief and Tomas in part II] Majority objects to reporting drug-test results to policenot a search Taking of the urine sample could be regarded as a search (testing?) o 4th protects only persons, houses, papers, and effectsurine isnt effect, but abandoned Court has never protected material that a person hands over to 3rd party Special-needs doc could validate what was done here

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o o o

Safford Unified School Dist. v. 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. 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. R denied everything, consented to search of her belongings. Female Admin. Assist. came into office, searched backpack w/ male principal, found nothing. P sent R to nurses office, where she had to strip, pull her undies out, and shake. 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; (2) Right was not clearly established, so the official who ordered the unconstitutional search is entitled to qualified immunity from liability. School policy prohibits use, possession, or sale on school grounds of any prescript/over-the-counter drug Week before R was searched, another student told Principal about students bringing drugs/weapons on campusstudents planned to take pills @ lunch that day Principals suspicion justified search of Rs backpack and outer clothing o Search was not intrusiveprivate office Strip searchnot about who was looking and what was seen o Fact of pulling underwear w/ officials there violated subjective and reasonable societal expectations of personal privacyneeds further justification o Indignity of the search does not outlaw itreasonableness depends on if the search is reasonably related in scope to the circumstances which justified the interference in the first place. 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, joined by Ginsburg] Disagrees w/ grant of qualified immunity to school official, thinks T.L.O. shows it is unconstitutional to strip search a 13 y-o. [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 drugsJustified @ inception o Lunchtime deadline quickly approaching o Totality-of-circumstances justified search of R for pills Reasonable in scope4th grants leeway to school officials o Pills could have been hidden in undiesreasonable 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 infractiontest is unworkable bc school officials shouldnt have to hault searches bc of possibility a court will later find the infraction was not severe enough to warrant an intrusive investigation

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3. Checkpoints Michigan Dept of State Police v. Sitz [1990]**Only addresses initial stop [Opinion: Rehnquist]

Facts: Advisory Committee established checkpoints @ selected sites along state roads. All vehicles would be stopped, drivers examined for signs of intox., when intox. police check license/registration and conduct sobriety tests. If driver failed, arrest was made. Other drivers could resume. Holding: States use of highway sobriety checkpoints does not violate 4th and 14th. 4th seizure occurs when vehicle is stopped at checkpointquestion of reasonableness o Magnitude of drunk driving problemstate interest in eradicating it o Balanced w slight intrusion in motorist stop (objective) Subjective: fear and surprise, but checkpoints follow guidelines fixed systematic DUI stop and was random. No individualized stops. Drunk driving is more of a

public policy because its an imminent danger to public.

[Dissenting: Brennan, Joined by Marshall] Court undervalues the nature of the intrusion and exaggerates the law enforcement need to use the roadblocks to prevent drunk driving. 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/ majoritys use of balancing testbut opinion does not have the reason that the BT is used, bc seizure is minimally intrusive. [Dissenting: Stevens, joined by Brennan and Marshall in Parts I & II] No relation btw sobriety checkpoints and a reduction in highway fatalities Diff. 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. btw discretion of officer after stop o Border searchcheck for IDyou have it or you dont 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, unlike aliens riding in cars III. Opinion gives no wait to citizens interest in freedom from suspicionless investigatory seizures o Permanent checkpoints are justified, not suspicionless seizures o Sobriety checkpoints are elaborate publicity stunts to show law enforcement is taking law seriously.

Indianapolis v. Edmond [2000] [Opinion: OConnor]

Facts: Checkpoints to interdict unlawful drugspolice stop a predetermined # of vehicles, approach, advise driver, take license/registration, looks for signs of impairment and does and open-view check, and narcoticsdetention dog walks around vehicle. Search only done on consent or particularized suspicion. Sign in advance of checkpoint. Holding: Because the primary purpose of the Indi narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes 4th. Dogs do not transform the seizure into a search o Sniff is much less intrusive than a typical search Distinguish these checkpoints: primary purposedetection 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. Pg. 432.
Distinguish Sitz: no vehicle-bound threat to life/limb like a sobriety checkpoint. Immediate

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Primary purpose of program is indistinguishable from the general interest in crime control

pretext to stop who ever they want. Wasnt random like Sitz. They were looking for drugs in this case and purpose was to jail people *** would police have stop if they couldnt arrest people? No, no immediate harm
Franks: need individualized suspicion.

[Dissenting: Rehnquist, Joined by Thomas and Scalia in Pt. I] While stops primary purpose is to interdict illegal drugs, it also checks licenses/registrations and looks for signs of impairment2 important State interests Subjective intrusion: short, signs, high success rate o Only diff. from Sitz: dogs, which is not part of a search Automobile has a lower expectation of privacycoupled 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.

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Chapter 7: The Forth Amendment in Context

A. 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. Search Incident to Arrest (SILA)

Full custodial arrests (Chimel, Robinson) Limited: weapons and evidence (1) Arrestees person (limitations on intrusiveness) (2) Grabbing Area (Immediate control) (3) In home: immediately adjoining spaces from which an attack can be branched

Chimel v. California [1969] SILA of home [Opinion: Stewart]

Facts: Off. go to Cs home w/ warrant authorizing Cs arrest, knock, identify to wife, and ask to come inside. C comes home after 15 mins., Off. ask to around, C objects, but Off. conduct search on the basis of the lawful arrest (no search warrant issued). Off. searched entire house for 45-60 mins. Holding: When executing an arrest warrant, search must be limited to suspects person and grabbing area for either a weapon or evidence against him. Search incident to arrest principle: when an arrest is made, 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. o Includes suspects 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. 443 Justification: (1) Protection of evidence; (2) Officer Safety

United States v. Robinson [1973]***Concern of the Court: CRIME AND PUNISHMENT [Opinion: Rehnquist] SILAregardless of offense
Facts: Off. observed R driving car, based on previous investigation determined there was reason to believe R was operating car w/ revocation of operators permit, an offence defined by statute in DC (jail, fine, or both to punish). Off. pulled car over and searched J w/ a patdown, finding something in jacket pocket. Off. pulled it would to identify it: crumpled up cigarette package, opened it, found heroin. Holding: In the case of a lawful custodial arrest, a full search of the person is an exception to the warrant req. of 4th and is reasonable. SILA not held to stricter Terry standards Justification for SILA: (1) Disarm before custody; (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. 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. The only

evidence in this case would be a valid license. Rule- lawful arrest allows you to search the fullbody of the a person being arrested (bright-line rule)

[Dissenting: Marshall, Joined by Douglas and Brennan] Opinion allows police off. lacking PC to obtain a warrant to use a traffic arrest as pretext to conduct a search.

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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 searchno reason to think a traffic violated is armed o Terry did not allow off. to stop-and-frisk anyone on the street, only when he believes it is an armed and dangerous individual.

Illinois v. Lafayette [1983] Inventory Search [Opinion: Burger]

Facts: L arrested for disturbing the peace. Later @ police station, L had to empty pocketscigarette package had amphetamine pills. Holding: It is not unreasonable for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance w/ est. inventory procedures. Must be routine/standardized procedure at police station This case does rest on PCabsence 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. justification factors: o Gov. interest in stationhouse search is highermore leniency for officers @ station o May disrobe before confining o Inventory processdeters false claims of theft o Risk of injury to arrested personsconfiscate dangerous instrumentalities o Police fear is irrelevant o Way of verifying identity. Court is not in the position to second-guess police department o less intrusive means not relevant to reasonableness

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B. Houses

Welsh v. Wisconsin [1984] [Opinion: Brennan]

Facts: W drove car off the road and left the scene. Witness called police, who inspected car, went to Ws home w/out warrant, gained entry from stepdaughter, and arrested W in bed. W taken to police station were he refused breath-analysis test. Appeal of license revocation, not an exclusionary rule case. Holding; Absent exigent circumstances, a warrantless, nighttime entry into a suspects home to arrest him for a civil traffic offense is prohibited by protection of the home in 4th. Invasion of the home is a chief evil that 4th is directed againstsearch/seizure of home w/out warrant are presumptively unreasonable. Burden is on Gov. to demonstrate exigent circumstances to overcome presumption of unreasonableness o Nature of the underlying offense: noncriminal, traffic offense Not hot pursuit bc there was no immediate/continuous pursuit of W from the scene of a crime. No threat to pub. safety bc W was home. Not sufficient exigency bc of destruction of evidence (BAC) Franks: Exigent circumstances depend on the gravity of the situation- non-criminal offense, at home, no public threat

Minnesota v. Olson [1990] Overnight guests [Opinion: White]

Facts: Robbery/murder. Police suspected Ecker, went to his home, and 2 men fled an Oldsmobile. E was captured shortly after inside his home. 2nd man escaped. Inside the Oldsmobile, police found $, murder weapon, and title w Os name. Next day, informant called police and said O drove the car during crime and was getting ready to leave town. Police obtained a probable cause arrest bulletin for Os arrestdirected to stay away from Os duplex. Police went inside house w/out permission and w/ weapons drawn and found O in closet. Holding: Overnight guest in a home has a reasonable expectation of privacy in the home that society is prepared to recognize as reasonable. an overnight guest has the same expectation of the home-owner. Unclear still if only has the intent

to stay they get the same protection. Doesnt have a key, not left alone, no rights of exclusion Assumption of risk cases

Minnesota v. Carter [1998] Temporary guests for commercial transactions [Opinion: Rehnquist]

Facts: Confidential informant directed Off. to ground level apartment where drug bagging operation was visible behind gap in the blinds. When men left, Off. pulled over car, observed gun, and arrested 2 men. Search of apartment revealed residue and baggies. Men had never been to the apt. before and were there for 2 hours. 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. Business < home Permission to stay v. permission to do business 4th: protection to people in their housesone who is merely present w/ consent of householder may not claim protection of 4th. 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

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Did not decide if it was a search bc there was no expectation to privacy o B thinks there was a search, issue was to whom

[Concurring: Scalia, 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 theirhouseseach person has right to be secure against unreasonable searches/seizures in his own person, house, papers, and effects. Must actually live therenot 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. [Concurring: Kennedy] Respondents had no connection w/ home [Concurring in the judgment: Breyer] Respondents can claim 4th protection in home, however, officers observation from outside home did not violate 4th rights. o Off. was standing in a public place where may people passed bynot an unreasonable search o If you live in a basement apt., you should understand the need for care to keep out unwanted eyes. [Dissenting: Ginsburg, Joined by Stevens and Souter] Courts decision undermines the security of short-term guests, and the residents security of the home o When a homeowner invites a guest, guest should share hosts shelter against unreasonable searches/seizures. Limited to those chosen to share privacy of home/company w/ guestnot milkman/delivery boy o There is a subjective expectation to privacy that society is prepared to recognize as reasonable

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3. Technology and the Home United States v. Knotts [1983] Tracking device on car [Opinion: Rehnquist]

Facts: Off. suspected K of manufacturing illicit drugs and installed a beeper on a container. Off. followed car and found location. Off. secured a search warrant and found a meth lab. Holding: Beeper tracking device attached to a car to follow movement does not invade any legitimate expectation to privacy. Person traveling in car on public roads has no reasonable expectation to privacy. Visual surveillance from public places would have revealed the route/Ks premises o 4th does not prohibit augmenting the sensory faculties as science/tech. permits. o Beeper has limited useascertaining 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. o Not a 4th search/seizure [Concurring in the Judgment: Brennan, Joined by Marshall] Confusion of 4th standingcontainer sold to compatriot, not K [Concurring in the Judgment: Stevens, 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 doctrinedrum was outside the cabin in public display. Not a valid statement. o 4th does not prohibit augmenting the senses w/ technologywhat about Katz??

Kyllo v. United States [2001] Thermal Imaging Devices [Opinion: Scalia]

Facts: Off. used thermal imaging device aimed @ private home from a public street to detect infrared radiation to check for heat lamps to grow pot. Holding: Where Gov. 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, the surveillance is a search and is presumptively unreasonable w/out a warrant. Area is a homeprivacy expectations are most heightenedconstitutes a search o Katz test: expectation to privacy exists in the home and is acknowledged to be reasonable. o Using sense-enhancing technology to get info not otherwise available w/out physical intrusion constitutes a search, at least where the technology is not in general public use. o Dissents argument that imager did not get info about interior of the home is inaccurateimager reveals heat of various rooms inside the home. No distinction btw off-the-wall observations and through-the-wall surveillance. Homeowner should not be left @ mercy of advancing technology. 4th protection not tied to sharing intimate detailsdoes not matter about the quality/quantity of information obtained. o All details of the home are intimate bc the entire area is safe from prying Gov. eyes. o Limiting prohibition of thermal imaging to intimate details would be impracticaldo not know in advance what details would be detected. th Amend. draws a firm line @ the entrance to the house. The 4 Franks: As soon as in common use holding does not apply [Dissenting: Stevens, Joined by Chief, OConnor, and Kennedy] Through-the-wall surveillancegives observer or listener direct access to info in a private area Off-the-wall surveillanceindirect deductions from observation of the exterior of the home o Infrared camera passively measured emitted heat, which showed some areas were warmer than others. It was not information that could not have been observed.

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o Public could observe from melting snow or rain evaporation. 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. Police should not have to avert their senses o Party interest is minimalpeople 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. Here, only disclosed heat radiating from the house. o If Katz device only disclosed the volume of the sound leaving the booth, which is discernable in the public domain. Franks: it is an inference, so it is not a search

United States v. Pineda-Moreno [9th Cir. 2010] Dissenting from the denial of rehearing in banc
Facts: Police went onto Ps property during the night and put a GPS on his car. 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 peoples curtilage. Pg. 531
Constitutional protection should be provided to rich/poorcannot penalize those w/out $ for gate 24-hour surveillance

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C. Automobiles
Carroll: est. the automobile exception to Warrant Clause. Goods concealed and illegally transported in a vehicle may be searched for w/out a warrant. 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.

California v. Acevedo [1991] Container search of automobile [Opinion: Blackmun]

Facts: Off. got info about pot package from a DEA officer, watched Daza claim package and bring it home. Off. got a search warrant. St. George went to apt., came out w/ backpackpolice stopped him when he drove off, searched the backpack, and found pot. A went to apt., got brown bag, and put it in his trunk. Off. stopped him, opened the trunk, and found pot. 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. Carroll: impracticable to secure a warrant bc the vehicle can quickly move out of locality or jurisdiction; enough to have PC to believe vehicle has evidence of crime. 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. Sanders: heightened privacy expectation in personal luggagepresence of luggage in an automobile does not diminish the owners expectation to privacy in personal items. o In Ross you dont need warrant; in Sanders you do Here: like Ross, 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. 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 potwarrantless search of bag OK Overrules Sanders! [Concurring in the Judgment: Scalia] 4th does not require a warrant for searches/seizures, rather prohibits unreasonable searches/seizures. o Warrants: limitation upon their issuance, rather than a requirement of their use; means of insulating officials form personal liability. Closed container is not part of automobile exception to the general warrant requirement, but bc there is PC to believe the container has contraband and in fact does have contraband, 4th reasonableness does not depend on warrant. o Police could have arrested A as he left Dazas house bc of PCsearch bag pursuant to the arrest. [Dissenting: Stevens, Joined by Marshall and White] Absent exceptional circumstances, decision to invade individuals privacy should be made by a neutral magistrate, rather than agent of the Executive. Burden of warrant req. is outweighed by individual interest in privacy that is protected by advance judicial approval. Anomalous to prohibit the search of a briefcase while owner is carrying it on public street, but to allow it once placed inside trunk of car. o In either location, if there is PC police can seize and detain briefcase and wait for judicial approval to search.

Wyoming v. Houghton [1999] Searching passengers belongings [Opinion: Scalia]

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Facts: Off. stopped car w/ 3 people inside and found pouch/wallet-type container inside passengers purse. Off. found drug paraphernalia, syringe, and drugs inside. 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. 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. to search passengers 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 passengers belonging. Common enterprise w/ driver (Pringle), same interest in concealing fruits or evidence of wrongdoing Criminal could hide contraband in passengers belongings. [Concurring: Breyer] Limitations of the rule: only automobiles, only containers w/in automobiles, not persons found w/in automobile. Purse was separate from person, so it does not have protection. [Dissenting: Stevens, Joined by Souter and Ginsburg] In all prior automobile exception cases, D was operator of the vehicle and in custody of the object of the search. o Di Re: passenger Dheld the exception to the warrant req. didnt apply. Courts rule makes distinction btw property in clothing worn by passenger and property contained in passengers briefcase or purse. o Intrusion in these items just as serious as Di Re. State interest in effective law enforcement does not outweigh privacy concerns

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3. Searches Incident to Arrest

Different search an Probable Cause automobile search (Acevedo, Houghton)In a SILA automobile search, you were caught w a syringe and the cops have reason to believe there is more evidence w/in the car. In a PC search, the cops see you put a container in your car and have PC to search it.

Thornton v. United States [2004] [Opinion: Rehnquist]

Facts: Off. pulled over T for having the wrong license tags. T agreed to a patdown and officer found pot and crack. Off. arrested T, placed him in back seat of patrol car, and searched Ts car, finding a handgun. Holding: When arrestee is the recent occupant of a vehicle, an officer may search the vehicle incident to the arrest. Belton: held that when a police off. makes a lawful custodial arrest of an occupant of an automobile, 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. o Does not hinge on whether arrestee is inside car or exited the carboth are highly volatile situations. Once officer determines there is PC to make arrestreasonable to allow officer to ensure his safety and to preserve evidence by searching the entire passenger compartment. [Concurring: OConnor] Police wrongly treat the search of a vehicle incident to arrest as an entitlement, rather than an exception. [Concurring in the Judgment: Scalia, Joined by Ginsburg] T was neither in nor anywhere near the passenger compartment of car, he was handcuffed and secured in the back of a squad care. The risk of grabbing a weapon was remote, so he dissents. Nothing irrational about broader police authority to search for evidence when/where the perpetrator of a crime is lawfully arrested. o Arrest distinguishes the arrestee from society at largedistinguishes his crime from general rummaging. o Belton is not an application of Chimel, but a return to the broader search incident to arrest. 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. o This case: reasonable for the officer to believe there might be evidence related to the drug offense w/in the vehicle. [Dissing: Stevens, Joined by Souter] Like a Chimel search bc he is a pedestrian at the moment and not a driverpolice may search the area in the arrestees immediate control where he might reach to grab a weapon or destroy evidentiary item. Majority does not saw how recent is recent, how close is closeunworkable rule

Arizona v. Gant [2009]**Plurality opinion [Opinion: Stevens]

Facts: G was arrested for driving w/ a suspended license and locked into back of a police car. Police searched car/pocket of a jacket in the backseat and found coke. Holding: Police may search a vehicle incident to a recent occupants 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. Every 4th case begins w/ the reasonableness of a warrantless search: o Rejects Belton and applies Chimelpolice may search a vehicle incident to a recent occupants arrest only when the arrestee is unsecured and w/in reaching distance of the passenger compartment @ time of the search.

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Apply Thornton: in vehicle context, officer may justify SILA when it is reasonable to believe evidence relevant to the crime of the arrest might be found in the vehicle. Here: traffic violation, nothing in car would have been relevant evidence. o Search was unreasonable: police could not expect to find evidence of crime in car, G could not have accessed his car @ time of search. Possibly overruling Belton (applied Chimel to a car) Attempt to pull back a bit. You are not able to just search the car, it has to fit w/in these criteria. o

[Concurring: Scalia] During a roadside stop, police have less intrusive/more effective ways to enforce safety. Risk of pulling a car over is @ the high at the initial confrontation, not when the person is arrested and in the back of a squad care. Applying the Chimel standard fails to provide officers w/ guidance and leaves room for manipulation. 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, or of another crime the officer has PC to believe occurred. [Dissenting: Breyer] Would like a better rule, but agrees w/ dissent [Dissenting; Alito, Joined by Chief, Kennedy, and Breyer except II-E] Rule will endanger arresting officers, confuse officers and judges, cause the suppression of evidence gathered in cases carried out in good-faith reliance on well-settled case law, and undermines Chimel. Would follow Belton Franks: This case is a limitation on the automobile exception bc things have gotten out of hand; Does not make sense under Robinson (justifies SILA exception to 4th)

Whren v. United States [1996] [Opinion: Scalia]

Facts: Off. in plainclothes were patrolling high crime area in unmarked car. Off. passed car w/ youths that stopped @ stop sign for 20 secs. The sped off. Cop ordered driver to put vehicle in park, and saw two bags of crack in Ws hands, arrested the boys, and retrieved other illegal drugs from the vehicle. Boys argue cop had PC to believe traffic code violations occurred, but that the cop used it as pretext for search. Holding: Where cop makes an objectively reasonable stop and there is evidence in plain view, the evidence will be admissible. Ws proposed standard: whether the Off.s conduct deviated materially from usual police practices, so that a reasonable officer in the same circumstances would not have made the stops for the given reasons. o Officers subjective motive does not invalidate objectively justifiable behavior under 4th. Stop was based on PCno need to do balancing analysis o Detaining a motorist is reasonable if PC exists to believe that a traffic violation occurred. Just bc traffic law is expansive or commonly violated does not mean it is no longer part of law enforcement

Ohio v. Robinette [1996] [Opinion: Rehnquist]

Facts: R going 69 in a 45, cop pulled him over and asked for license, found no previous violations. Cop asked for consent to search car, R authorized and cop found pot. Holding: Cops are not required to tell a seized person he is free to go for his consent to search to be deemed voluntary. Cop had PC to stop R for speeding Bustamonte: rejected a per se ruleknowledge of the right to refuse consent is not required. Unrealistic to req. cops to inform detainees that they are free to go before consent to search is deemed voluntary.

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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. State is free to impose greater restrictions on police activity than the Court holds necessary under Const., but the OH Sup. Ct. relied on the federal constitution, which does not require first-tell-ten-ask. [Dissenting: Stevens] Would uphold OH judgment bc @ the time consent was given, it was the product of an unlawful detention. o However, Const. does NOT req. officers to tell detained motorists theyre free to go Seizure of a person: reasonable person would have believed that he was not free to leave: o Reasonable motorist in Rs 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.

Illinois v. Caballes [2005]**Only drug sniffing dog, not bomb sniffing [Opinion: Stevens]

Facts: C stopped for speeding, narcotics officer came and walked dog around car. Dog alerted @ the trunk, officers searched the trunk, found pot, and arrested C. Entire stop lasted 10 mins. 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. o Ticket issuing can become unlawful if prolonged beyond the reasonable time req. to complete that mission. Off. conduct that does not compromise any legitimate interest in privacy is not a search subject to 4th. o Possessing contraband is not legitimate Gov. 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. PC to conduct full-blown trunk search Distinguish Kyllo: thermal imager could detect lawful activity, dog sniff does not Franks: Checkpoint + Dog = not okay (Edmond); Traffic point + Dog = Okay; 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. Dogs are not infalliblePlace (held sniff test was not a search) should be reexamined o Dogs can be used to justify a further/complete search of an enclosed area1st step in a process that may disclose intimate details Enforcing criminal laws does not, w/out more, justify suspicionless 4th intrusions (Edmond) Franks: Problemcourt says it was not a search. It cannot be a per se rule. [Dissenting: Ginsburg, Joined by Souter] Scope: seizure was unwarranted/nonconsensual expansion of the seizure for a routine traffic stop to a drug investigation. o Cites Terry: investigation must be reasonably related in scope to the circumstances which justified the inference in the first place. o By using dog, 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.

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Chapter 8: Police Questioning

A person is denied Due Process of Law if an involuntary statement is used against her at a criminal trial. Interpreted as a privilege against compelled self-incrimination. Attaches when a suspect is subjected to custodial interrogation. Rule: a statement obtained involuntarily from a suspect, by a law enforcement agent, is inadmissible at the Ds state criminal trial. o Voluntariness is determined based on the totality-of-the-circumstances.

Spano v. New York [1959]**Indicted for murder when S confessed [Opinion: Warren]

Facts: Warrant issued for Ss arrest in relation to a murder. S called close friend to tell about incident and confessed. S surrendered to authorities, attorney cautioned S not to answer questions, and S refused to answer. S asked for attorney, but officers did not allow. Friend came into question S and said he was in trouble bc S lied, S gave statement and took S to bridge where he ditched murder weapon. 5th and 14th Amend. claims. Holding: Under 14th, confession may not be upheld when suspects will was overborne by official pressure, fatigue and sympathy falsely aroused in a post-indictment setting. Police were concerned w securing a statement, not solving a crime. Confessions must be examined w careful scrutiny Court uses totality-of-the-circumstances test to see if his will was overborne: foreign, no history, emotionally instable, short education, nonbusiness hours, 8 hours long, and use of friend to solicit answers. Franks: police were adjudicating, not investigating. [Concurring: Douglas, 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. Police made their own kangaroo court and denied S counsel before trial. [Concurring: Stewart] Absence of counsel alone is enough to render it inadmissible under 14th. Emphasis: police were not questioning in relation to an unsolved crime, S was under indictment for first degree murder. o Our system: indictment arraignment trial Accused has a right to lawyers held @ every stage

Massiah v. United States [1964] [Opinion: Stewart]

Facts: P was indicted, obtained a lawyer, pled not guilty, and was released on bail. After release, cops put a listening device in friends car and listened to a convo incriminating M. M contends his 5th and 6th rights were violated by the use of evidence against him of incriminating statements which gov. agents deliberately elicited after indictment and w/out counsel. Holding: 6th attaches @ indictment and forbids agents from deliberately eliciting statements from D in the absence of counsel. Spano: Concurrence said that the police deliberately elicited the confession after D had been indicted, when he was entitled to a lawyers help. This expands from DP to 6th Amend. M was denied the basic protections of 6th when his incriminating words were used against him in trial, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel. o Rule must apply inside/outside police station. Police can continue investigation of the suspected criminal activities of a D and his partners, even though the D has been indicted. o However, Ds incriminating statements, obtained by feds under these circumstances, cannot constitutionally be used by the prosecution as evidence against him @ trial.

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[Dissenting: White, Joined by Clark and Harlan] M was not prevented from consulting w/ counsel as often as he wished. Just bc M had right to counsels aid does not mean out-of-court convos must be excluded. M was not in custody, there was no coercion, M assumed the risk Old rule gives ample protection: confessions may not be introduced unless they are voluntary.

Escobedo v. Illinois [1964]**Interrogation before indictment [Opinion: Goldburg]

Facts: E arrested w/out warrant, interrogated, didnt speak, and was released. Weeks later, accomplice told police E fired fatal shots. E was arrested, told by cop that there was a good case against him and he might as well confess. E replied that he wanted a lawyer, lawyer made attempts to contact him. E was told he could go home if he pinned it on accomplice, so he made a statement under the assurance. E confronted accomplice and said I didnt shoot Manuel, you did it. Holding: When an investigation is no longer a general inquiry into an unsolved crime but begins to focus on a particular suspect, the Assistance of Counsel applies (shift from investigatory to accusatoryadversary begins to operate). When E requested and was denied opportunity to consult w lawyer, it ceased to be a general investigation of an unsolved crime. E was the accused. E was not informed of his absolute right to remain silent and cops urged him to make statement. Under IL law, admission of complicity in a murder plot = admission of firing fatal shots o E was unawareguiding hand of counsel was essential o @ time, E had already been charged w murder Law enforcement cannot depend on the confession, but should depend on extrinsic evidence secured through skillful investigation. o System should not depend on citizens being unaware of their constitutional rights Franks: Custody but not formally charged: o Does not matter that its pre-indictment o Once cops focus on an individual6th Amend. rights [Dissenting: Harlan] Rule interferes w legit methods of criminal law enforcement. [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. Of an unsolved murder. o Court has never req. police to give Constitutional advice under circumstances like these. [Dissenting: White, Joined by Clark and Stewart] Court is headed toward barring all admissions from an individual suspected of a crime, whether voluntary or not. Rule is unworkableDuty of counsel everywhere you go?? Es lawyer had advised him not to answer previouslyknew he didnt have to Law enforcement will not be destroyed, but more difficult.

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Miranda v. Arizona [1966] [Opinion: Warren]

Facts: Ds were held incommunicado in a police-dominated atmosphere, resulting in self-incriminating statements w/out full warnings of constitutional rights. 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, procedural safeguards must be employed to protect the privilege against self-incrimination. He must be warned of right to remain silent, that anything he say can be used against him in a court of law, he has the right to the presence of an attorney, and if he cannot afford one, one will be appointed. The prosecution may not use statements, whether exculpatory or inculpatory, 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. o What the court meant by focusing on the accused in Escobedo. Procedural safeguards: prior to questioning, 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, either retained or appointed D may waive affection of these rightsvoluntarily, knowingly, and intelligently If D indicates @ any point he wants to consult w/ attorney before speakingno questioning o Fact that D answers some questions does not deprive right to refrain from answering further inquiries until he consults w attorney. Custodial interrogation takes a heavy toll on indiv. liberty and weaknessinvokes 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. Constitution does not necessarily req. adherence to any particular solution. 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, tricked, or cajoled into a waiver will show the D did not voluntarily waive his privilege. Prophylactic in nature, serves the 5th but sweeps more broadly than 5th itself. You can violate Miranda w/out violating 5thnot all statements obtained in violation of Miranda are compelled. [Dissenting: Clark] Police manuals are not universally used Brutality is rare exception Majority goes too far too fastlack of knowledge of practical operation of reqs. Would follow DPC of 5th and 14th [Dissenting: Harlan, Joined by Stewart and White] New rules do not guard against police brutality or other forms of coercion, rather discourage confessions. Not in 5thdoes not apply to police station. Rule derives from lang. in 6th which has no bearing on police interrogation. o 5th does not forbid all pressure to incriminate ones self Policy: rules impair and frustrate important instrument of law enforcementwill decrease confessions [Dissenting; White, Joined by Harlan and Stewart] Wants ToTC test and that incriminating statements can be made voluntarily

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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, having independent observers present, 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, this rule may make it more difficult for suspects to exonerate themselves

Franks: all four Ds were convicted on remandnot necessarily letting the person go. 5th and 6th are meaningless if we arent informed

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Chapter 9: The Right to Counsel

In all criminal prosecutions, the accused shall enjoy the right tothe Assistance of Counsel for his defence Violated if the Gov. deliberately elicits statements from a suspect in the absence of her counsel or valid waiver of the right. Attaches when the adversarial judicial criminal proceedings commencewhen a suspect is arraigned or indicted.

A. Deliberately Elicited Brewer v. Williams [1977] [Opinion: Stewart]

Facts: Cops arrested former mental patient for murder. He was arraigned before a judge after turning himself in. Lawyer was not allowed to go in police car, so he repeatedly instructed cops not to question suspect. Cop gave Christian burial speech and told suspect he didnt want an answer, just wanted him to think. W showed police where body was. Holding: Right to counsel under 6th and 14th means a person is entitled to a lawyers help @ or after the time judicial proceedings are initiated against him. Judicial proceedings had started before car ridewarrant, arraignment, committed to confinement in jail Detective deliberately elicited information from W Massiah applies: once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him. 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, but relinquishment o Despite Ws assertions of his right to counsel, Detective continued to elicit incriminating statements Body may be admissible on the theory that it would have been found anyways w/out incriminating statements. Franks: Right to counsel has attached @ this point and D did not waive his right. [Concurring: Marshall] Good police work is different from catching the criminal @ any price. 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. Spano v. NY. Officer knowingly isolated W from lawyers to persuade him to give incriminating evidencenot good police practice. If W goes free, it will be bc detective intentionally denied W his rights and risked conviction. [Concurring: Powell] Right to assistance of counsel may be waived after it has attached, w/out notice to or consultation w counsel. However, petitioner did not prove W on his own initiative confessed to the crime. [Concurring: Stevens] State cannot dishonor its promise to the lawyer if we are concerned about individuals effective representation by counsel. [Dissenting: Burger] W waived his 5th right to silence/6th to counselcan do so w/out attny present Cop prompted confession by a statement, 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

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6th is to safeguard fairness of trial and uphold integrity of the factfinding process.

[Dissenting: White, Joined by Blackmun and Rehnquist] Question is about waiverW knew of his right not to say anything w/out counsel and relinquished right when the car approached the place where he hid victims clothes. o Exercise of his own free will o Even if influenced by speech, decision to talk was not the product of an overborne will, not coercive, and was knowing/intentional. Majority rests on fact that W asserted right to counsel, then relinquished w/out counsel o Waiver is not a formalistic conceptshown when facts est. the accused knew of right and intended to relinquish. [Dissenting: Blackmun, Joined by White and Rehnquist] Rule is far too broadwhen there is no interrogation, statements should be admissible as long as they are truly voluntary.

Kuhlmann v. Wilson [1986] [Opinion: Powell Pts. I, IV, V]

Facts: W arraigned and placed in cell w inmate who agreed to act as a police informant. W made incriminating statements that informant reported to police. Informant was told not to ask questions, but to keep his ears open. Holding: A defendants 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. Massiah and Spano: once 6th right to counsel attaches, he is denied that right when federal agents deliberately elicit incriminating statements from him in the absence of his lawyer. o D does not make out violation of right by showing an informant reported his incrim. statements to police. Rather, must show police and inform. took action beyond merely listening, that was designed deliberately to elicit incriminating remarks. Informant did not ask questions, only listened [Concurring: Burger] Vast difference btw placing and ear in a suspects cell and placing a voice in the cell to encourage convo for the ear to record. Thinks it is an abuse of habeas. [Dissenting: Brennan, 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 Ds right to counsel by deliberately eliciting inculpatory admissions o Accused was incarcerated and susceptible to the ploys of undercover Gov. agents o Although informant was not the immediate cause of Ws admission, the deliberate-elicitation standard requires consideration of the entire course of Gov. behavior State intentionally created situation.

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B. Commencement of Adversarial Proceedings Rothegery v. Gillespie County [2008] [Opinion: Souter]

Facts: Background check wrongly showed R had a record. He was arrested as a felon in possession of a firearm. Cops didnt have warrant, so they brought in front of Magistrate, who told him the accusation, set bail, and committed him to jail. R was released for posting bond, but had no $ for a lawyer. R made several oral/written requests for lawyer, no response. 6 months later he was indicted, rearrested, and put in jail for 3 weeks. Finally got a lawyer who confirmed he was never convicted of felony. 1983 action against county for violating 6th right to counsel. Holding: A criminal Ds initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of 6th right to counsel. 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. o TX 15.17 countsfirst formal proceeding Should have appointed lawyer earlier and avoided 3 weeks in jail Once attachment occurs, accused is entitled to presence of appointed counsel during any critical stage of post-attachment proceedings. [Concurring: Alito, 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 rightto have the Assistance of Counsel for his defense) 6th requires the appointment of counsel after the Ds prosecution has begun and then as necessary to guarantee the D effective assistance @ trialany pretrial critical stage Concerned w the countries resources Distinguishes btw right and stages o Court does not hold there was a 6th violation, but that the right to counsel attached @ Ds first court appearance. 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. [Dissenting: Thomas] Prosecution: manner of formal accusationwhen 6th attaches o Framers said criminal prosecutions, 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 Petitioners 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, all result in punishment based on questioning (1) Incrimination (2) Perjury (3) Contempt

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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. o Psychological pressurescoercion can be mental as well as physical Factors: length of custodial detention, length of interrogation itself, daytime/nighttime, whether it was incommunicado, and personal characteristics of suspect (age, intelligence, level of education, and prior police experience). Can find involuntary bc the individuals will was overborne or bc the interrogation techniques were morally unacceptable. o Promises of Leniency and threats of harsh legal treatment o Deceptioncop displaying false sympathy for the accused, falsely claiming to have incriminating evidence, or falsely asserting that a co-D has implicated the accused in a crime. Considerable police deception is admissiblecase law is not consistent, but deception alone will usually not invalidate a confession. Remedies for violation of the right: o Must be state action!! (Connelly3rd party does not make evidence inadmissible under DPC). o Obtaining versus using the statementexclusion of a confession obtained involuntarily is not a remedy for a constitutional violation, the ER is part of the RIGHT enforced by the DPC. ER is broader than 4th and 6th when applied to 5th

A. Compelled Colorado v. Connelly [1986]**Voluntariness versus official coercion [Opinion: Rehnquist]

Facts: C told a uniformed, off-duty officer he murdered someone and wanted to talk about it. Cop told C he had right to remain silent and C told him he understood and proceeding to talk. C took cops to location of crime and later told officers voices told him to confess. 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. Absent police conduct causally related to the confession, 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 Ds motivation for speaking/acting o Suppressing evidence would serve no purpose in enforcing constitutional guarantees o State of mindState law question, not Constitutional question Not a coercion case, but the result came out the way it did bc he was being coerced by GOD not by the POLICE OFFICER. Constitution leaves the reliability of the statement to be resolved by state laws concerning evidence. [Concurring in the Judgment in part and dissenting in part: Stevens] Pre-custodial statements were involuntary, but did not violate 5th bc they were not the product of state compulsion. o May be so unreliable that they would not support a conviction, but their use is not fundamentally unfair or a denial of DPC C was not competent to waive his 5th rightsrelationship changed after handcuff/taking into custody o Wavier is voluntary if its an exercise of free will o Custodial interrogation was presumptively coercivepost-custodial statements are inadmissible [Dissenting: Brennan, joined by Marshall] Believes the use of a mentally ill persons involuntary confession is antithetical to fundamental fairness of DPC

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Absence of police wrongdoing should not determine the voluntariness of a confession, should be a totalityof-the-circumstances surrounding the confession o Police overreaching is an element, 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, confessions carry heavy weight bc it lowers states burden of proof Tips the balance against the D Must be careful about confessions reliability No corroboration of Ds confession

B. Witness Schmerber v. California [1966]**What counts as testimony? [Opinion: Brennan]

Facts: Physician drew Ss blood to test BAC, but S did not consent to test. S claimed it violated 5th privilege against self incrimination, 6th right to counsel, and 4th unreasonable search/seizure. Holding: (1) Privilege against self-incrimination is not available where accused did not have to testify against himself in a testimonial or communicative nature; (2) Withdrawal of blood was not an unreasonable search/seizure bc there was PC for the arrest and emergency for the destruction of evidence. Also the blood was taken in a reasonable manner. 5th: Compelled to be a witness against himself? NO Officer directed physician to administer test over Ss objection compulsion BAC is evidence of criminal guilt Privilege is in regard to communications or testimony, not real or physical evidence o However, lie detector test is essentially testimonial o Blood test evidence is an incriminating product of compulsion, but not a testimony or communicative act or writingadmissible. If you want it to come in, make it non-testimonial. Then, you did not say anything or give testimony at all. 4th: Whether police were justified in req. S to submit to blood test and whether means were reasonable. YES. 4th constrains against intrusions that are not justified in the circumstances or which are made in an improper manner. PC for officer to arrest/charge S o Smelled liquor on Ss breath, bloodshot eyessuggests success/relevance of blood test Officer might reasonably have believe it was an emergencythreat of destruction of evidence o Attempt to secure evidence of BAC was an appropriate incident of Ss arrest. Test was reasonablecommonplace, minimal extraction, performed reasonably @ hospital o Different if administered by policy in stationhouserisk of infection/pain [Concurring: Harlan, Joined by Stewart] Would go further and hold the case does not implicate 5th. [Dissenting: Black, Joined by Douglas] Taking blood is testimonial and communicativeperson who extracted gives information about BAC, purpose is to communicate that S was drunk. o Result of test offered as testimony o Privacy claim is linked to 5thlater becomes 4th [Dissenting: Douglas] 5th marks a zone of privacy which the Gov. may not force a person to surrender, 4th gives right to be secure in your personsforcible bloodletting invades these. [Dissenting; Fortas] Under DPC, State has no right to extract blood over accuseds protest. o Act of violence

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

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Chapter 11: Administering Miranda A. Custody, Interrogation, and Incrimination

Oregon v. Mathiason [1977]
Facts: Police suspected M of a burglary. They tried to call him 3-4 times and left a card at his apartment asking to set up a meeting. M called officer and scheduled a meeting. Cop lied and said they found Ms fingerprints @ the scene and M confessed w/in 5 minutes. Cop Mirandized M and took a taped confession. M was released from the station. 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. Not custodial interrogationMs freedom to leave was not restricted o Came voluntarily, informed he was not under arrest, M left after interview o Noncustodial situation is not made custodial bc of coercive environment By nature, an interview of one suspected of a crime by a police officer will have coercive aspects. Police do not have to Mirandize everyone they question Just bc questions are in station or person is suspect does not mean in custody Officers false statement has nothing to do w custody. [Dissenting: Marshall] M interrogated behind closed doors, had been named by the victim as a suspect, and told by police they believed he was involved. o M could have believed he was not free to leave Case was coerciverequires Miranda warnings o Interrogated in privacy in unfamiliar surroundings o Investigation had focused in on M [Dissenting: Stevens] M was on parole @ time of interrogationState 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 servedshould always be Mirandized.

Berkemer v. McCarty [1984] [Opinion: Marshall]

Facts: Cop pulled M over for sloppy driving, asked him to get out of the car, and subjected M to field sobriety test. M failed the test and told officer he had three beers and smoked pot. Cop arrested M and took him to jail where he conducted a breathalyzer test. Test did not detect alcohol. M filled out a form, but was never Mirandized. Holding: (1) A person subjected to custodial interrogation is entitled to the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which he was arrestedMiranda applies to misdemeanors; (2) Roadside questioning of a motorist detained pursuant to a routine traffic stop is not a custodial interrogation. Traffic stop curtails freedom of actionfew 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 policepublic, diminishes fear of abuse Rationale: pressure inherent in a custodial interrogation are not present in traffic stopsno coercive environment. Custody did not happen until the arrest.

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[Concurring in Part and Concurring in the Judgment: Douglas] Question of admissibility of roadside statements is not in petition for cert. Court should not pass a constitutional question in advance of the necessity of deciding it.

Rhode Island v. Innis [1980] [Opinion: Stewart]

Facts: I arrested for shooting a cab driver and was Mirandized. I said he understood his rights and wanted to speak w lawyer. He was put in the officers car and the officers were told not to question/coerce him in any way. Officers talked amongst themselves, saying they would feel bad if a handicapped girl found the gun. I told officers to turn the car around and he would show them 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. Miranda safeguards not required where suspect is taken into custody, but where a suspect in custody is subjected to interrogation. 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 Mirandanot express questioning, officers should not have known their convo would elicit an incriminating response from I. o Few off-hand remarks, not particularly evocative. [Concurring in Judgment: Burger] Result is consistent w/ Miranda, so he concurs Reasoning introduces uncertaintyfew cops can make the evaluation necessary to the susceptibility of the accused. [Dissenting: Marshall, Joined by Brennan] Agrees w definition of interrogation regarding objective inquiry into police conduct However, thinks it was an interrogation: o Strong appeal to Is conscience about innocent schoolgirl. Could be expected to produce response. o Does not matter that it wasnt addressed to Iofficers were in close quarters and knew I would hear. [Dissenting: Stevens] For full 5th protection, interrogation must include any police statement/conduct that has the same purpose/effect as a direct question. Courts test creates an incentive for police to ignore suspects invocation of rights and continue to extract info from him.

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New York v. Quarles [1984]**Public Safety Exception [Opinion: Rehnquist]

Facts: Woman told officers we was raped, described suspect, and told officers he just entered the grocery. Officer spotted Q who matched the description, ordered him to stop, and frisked him which led him to discover an empty gun holster. After handcuffing Q, officer asked where the gun was and Q told him. Officer then retrieved the loaded gun, placed Q under arrest, and Mirandized him. Holding: Overriding considerations of public safety justify an officers failure to provide Miranda warnings before asking questions devoted to locating an abandoned weapon. Public Safety Exception: situations where police officers ask questions reasonably prompted by a concern for the public safety. 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, Q might be deterred from respondingcost would be more than failure to obtain evidence useful in conviction, it would be danger to the public. Need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting 5ths privilege against self-incrimination. o Absent coercion by the officer, there is no need to exclude the evidence in the future. 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. Here: question only pertained to locating the missing gun and after gun was secured, warnings were given before investigatory Qs about ownership/place of purchase. Franks: balancing test is problematic for a Constitutional right o Beginning of the end of Miranda as a constitutional right. o Not really a test, more of a conclusionthe cops will know [Concurring in the Judgment in part and Dissenting in Part: OConnor] Court did not apply sufficient justification to depart from Miranda Would require suppression of the initial statementthe gun is over there o However, Miranda does not req. exclusion of the nontestimonial evidence derived from an informal custodial interrogationgun can go into evidence. 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, a court will view differently and exclude admissions Miranda does NOT prevent police from asking questions, rather it decides who shall bare the cost when such Qs are asked/answered: the State o Can ask question, but will be excluded @ trial [Dissenting; Marshall, Joined by Brennan and Stevens] Man was arrested under suspicion of possessing a firearm in violation of NY lawsuspect incriminated himself by locating the gun. 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, no suspected accomplice, and situation was under control. Middle of the nightstore was deserted Pissed off @ Court: More cynical observers might well conclude that a state courts findings of fact deserve a high measure of deference only when deference works against the interests of a criminal defendant. Police officers will not be able to apply exception Miranda was not a decision about public safety, it was a decision about coerced confessions. o Public safety exception allows police to coerce Ds into making involuntary statements. o Public safety can be protected w/out violating 5thunconsenting questioning may take place, but the statements cannot be used @ trial.

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Would throw away statement, remand to consider introduction of the gun.

Illinois v. Perkins [1990]**Undercover Agent Exception [Opinion: Kennedy]

Facts: P told fellow inmate about a murder he committed. Inmate told police and the details fit w an unsolved murder. Police placed an undercover agent in the cell w P and inmate to elicit details of crime. Cop asked P if he had ever done anyone, P said he had and told details of the murder. P was not Mirandized. 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. Concerns of Miranda: police-dominated atmosphere, compulsion, and coercive atmosphere. 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 suspects misplaced trust Ploys to mislead/lull into a false sense of security are not w/in Miranda P viewed cellmate-agent as an equalshowed no hint of being intimidated o Suspect was incarcerated, but detention, whether or not for the crime in question, does not warrant a presumption that the use of an undercover agent makes the confession involuntary. Distinguish from Massiah: those are 6th, which attaches after charges have been filed. In this case, no charges were filed. Cannot be coercive bc there was no obligation to respond; not a police dominated atmosphere. [Concurring: Brennan] Was not an interrogation or inherently coercive environment to req. Miranda. Method used: State can exploit vulnerability bc it has complete control over suspects environment. Deliberate use of deception/manipulation by police raises Qs about whether Ps will was overborne. o Lower court should use TOTC to see if DPC was violated. [Dissenting: Marshall] Familiarity w confinement does not change incarceration into a noncustodial arrangement Officer asked questions designed to elicit specific info about victim, scene, weapon, motive o Not a conversation, but an interrogation likely to evoke an incriminating response. o Interrogation + Custody = Miranda Police took advantage of ps vulnerabilitycompelled him to make an incriminating statement o Compulsion not eliminated by suspects ignorance of interrogators true identity.

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B. Invocation and Waiver

Michigan v. Mosley [1975] [Opinion: Stewart]
Knowing, Intelligent, and Voluntary

Facts: Tip implicated M and three others with robberies. Cop arrested M, brought him to Bureau, and Mirandized him. M read and signed notification certificate. Cop questioned M, who said he did not want to answer robbery questions, interrogation ceased. Two hours later, different cop questioned M about a shooting, which M had not been arrested/interrogated about, so M was Mirandized again and signed form. M made an implicating statement. Holding: Once suspect invokes right to silence and police cease the interrogation, police may resume questioning when it involves a different crime, a significant period of time has passed, and fresh Mirandas have been given. Once suspect invokes right to remain silentthe interrogation must cease. o One construction: once suspect invokes, he may never by subjected to custodial interrogation by any police officer @ any time or place on any subject. o Other construction: any statement after invocation of the right to silence is the product of compulsion and should be excluded from evidence, even if volunteered by person in custody w/out further interrogation. o Other construction: immediate cessation of questioning, resumption of interrogation after a momentary break. 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, signed waiver, ceased, two hour break, new officer, different location, unrelated murder, and reminded of rights again. Officer did not ask about robbery, only murder. Police honored the decision Leaves a lot of Qs open, if any of these things arent present, is it a violation of 5th? [Concurring: White] Sufficient to exclude all confessions which are the result of involuntary waivers, does not depend on a period of time that must pass. [Dissenting: Brennan, Joined by Marshall] Standard is vague/ineffective Proposed standard: resumption of questioning should happen upon appointment/arrival of counsel.

Edwards v. Arizona [1981] [Opinion: White]

Facts: E arrested pursuant to a warrant. E was Mirandized, said he understood his rights, and was willing to be questioned. Cops told E another suspect implicated him in crime, E denied it and gave a taped alibi. Cop proposed a deal, E said he wanted an attorney before making the deal. Questioning ceased and E was taken to jail. Next morning detectives came to talk w E, guard said he had to talk. Detectives Mirandized E ad he listened to implicating tape. E said he would make a statement w/out being recorded and implicated himself. Holding: Once a suspect requests his right to counsel, all questioning must cease until counsel is present or the suspect voluntarily initiates the interaction. Presumption of involuntariness. Once accused invokes the right to counsel, you cannot question until counsel is present, unless valid waiver Valid waiver: must be voluntary and constitute a knowing and intelligent relinquishment or abandonment of right. o Not shown by responding to further interrogation, even if advised of rights against o Once invoked, accused can waive by initiating further communication, exchanges, or convos w police.

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Having exercised his right on J 19th to have counsel present, E did not validly waive it on the 20th during second custodial interrogation. Franks: no longer Escobedo Rule (6th) for right to counsel; assertion of right must be unambiguous

[Concurring: Burger] Inquiry is whether the resumption of interrogation is a result of a voluntary waiver. o Should be resolved as an intentional relinquishment/abandonment of a known right or privilege. Depends on facts and circumstances surrounding the case. o Enough that guard said E had to speak, not voluntary [Concurring in the result: Powell, Joined by Rehnquist] Does not join the courts opinion bc he does not know what it means Whatever the right, the standard for waiver is whether the actor fully understands the right in question and voluntarily intends to relinquish itnot initiation Once warnings are given and right to counsel is invoked, whether a suspect desires to talk w/out counsel is a question of fact to be determined by TOTC.

Maryland v. Shatzer [2010] [Opinion: Scalia]

Facts: S in jail for unrelated sexual-abuse charge, cop came to ask questions, Mirandized him, and S signed waiver of rights. S was confused that questioning was about abuse of another crime, sexual assault of his son. S declined to speak w/out attorney, and investigation was closed. Two and a half years later, different cop went back for questioning, Mirandized S, and obtained a written waiver. Interrogation lasted 30 minutes and S agreed to submit to polygraph. S was re-Mirandized and failed polygraph. Said I didnt force him. I didnt force him. S requested an attorney. Holding: Break-in-custody for more than two weeks btw first and second attempts @ interrogation ends the presumption of involuntariness of waiver. Returning to the general population constitutes a break-incustody. Edwards rule is a judicially prescribed prophylactic, so only applies where benefits outweigh its costs: o Benefits: presumption of involuntariness conserves judicial resources, preserves integrity of an accuseds choice, and prevents police from badgering a D. When suspect is released, he can go to normal life before interrogation, and consult w attorney, family, and friends. o Costs: exclusions of voluntary confession @ trial o Needs point of termination, 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, communication w others. [Concurring in part and Concurring in the Judgment: Thomas] 14-day test is an arbitrary number. [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, one will be provided for him. o Suspect will think the cops lied and he doesnt have a right to a lawyer o May think further objection is futile and an interrogation is the only way to end interrogation. 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 dont cooperate w police.

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Concurs in judgment because 2 year break in custody is a basis for treating the second interrogation as no more coercive than the first. o When suspect is left alone for a significant period of time, he is not as likely to draw conclusions when police interrogate him again.

Berghuis v. Thompkins [2010] [Opinion: Kennedy]

Facts: T was involved in a mall shooting and fled. Year later, he was found in OH and was to be transferred back to MI. Two cops interrogated him for three hours in a 8 x 10 room while T sat @ school desk. Cops gave written Miranda statement and T read 5th warning aloud, cops read the rest, T declined to sign the form that he understood his rights. 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 said he invoked his right to remain silent by remaining silent, that he never waived his right to remain silent, and that police should not have begun questioning him until they understood whether he wished to invoke/waive rights. Holding: A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to police. Cannot invoke privilege to silence by staying silent for a sufficient period of time. o Suspect must waive unambiguously o If suspect makes a statement that is ambiguous or equivocal or makes no statement cops not req. to end interrogation or ask questions to clarify. 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. Waiver must be voluntaryproduct of a free and deliberate choice rather than intimidation, coercion, or deceptionand made w a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. o Burden on gov. to demonstrate waiverpreponderance of the evidence o Implicit waiver is sufficient to admit a suspects statement to evidence Can be implied through Ds silence, coupled w an understanding of his rights and course of conduct o Here: T waived his right to remain silentunderstood his rights and chose not to rely on them when he spoke. Written copy, T could read/understand English, given time to read, read 5th aloud (aware his right would not dissipate after time), and officer read rights aloud. Answering question is a course of conduct indicating waiver of the right to remain silent. If T wanted to remain silenthe would have said nothing Police not req. to rewarn suspects No evidence of coercionstandard-sized room, length does not mean coercion, and religious reference does not make it involuntary. 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, understands them, and has an opportunity to invoke the right before giving any answers/admissions. T never explicitly invoked his right to silence. Court says not responding does not invoke. T did not explicitly invoke his right to silence a + he talked laterso he waived his rights. o Behavior constituted waiver [Dissenting: Sotomayor, Joined by Stevens, Ginsburg, and Breyer] Prosecution has a heavy burden in proving waiverdid not meet it o Butler is on pointa 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 silencestrong evidence against waiver Does not agree w Courts 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

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Ambiguous invocation of right to remain silentMosley rule: The suspects right to cut off questioning must be scrupulously honored When statements/actions can only be understood as invocation of right to remain silent, police should terminate questioning.

C. Trickery
Moran v. Burbine [1986] [Opinion: OConnor]
Facts: B arrested for burglary, confidential informant implicated him in murder. B was Mirandized, but refused to execute a written waiver. Bs sister obtained counsel for him for the breaking and entering charge, unaware of the murder suspicion. Lawyer called police and was told questioning was done for the night. Less than an hour later, B was subjected to a series of interviews, Mirandized 3x and signed written form that he did not want attorney before he gave statement. B had access to telephone. B signed 3 statements admitting to the murder. 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 attorneys efforts to reach him. Valid waiver: o Voluntaryproduct of a free and deliberate choice, rather than intimidation, coercion, or deception. o Knowingly and Intelligentlymade w full awareness of the nature of the right abandoned and the consequences of the decision to abandon it. 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. o Would have waived rights even if lawyer did not call o Additional info would have be useful, but Constitution does not require police to supply a suspect w a flow of info to help him calibrate his self-interest. Once it is determined suspects decision was uncoerced, that he knew he could stand mute and req. a lawyer, and he knew of the States intention to use statements to secure a conviction waiver is valid as a matter of law. State of mind of police is irrelevant to voluntariness of respondents election to abandon his rights. Purpose of Miranda is to dissipate compulsion inherent in custodial interrogation and guard against abridgement of 5thrule focusing on how cops treat lawyers has no relevance. 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. [Dissenting: Stevens, Joined by Marshall] Incommunicado questioning usually is the highest level of deception o Violates the ABAs Standards for Criminal justice o State courts + legal professions 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, but not sufficient for a valid waiverno difference btw deceptive misstatement and concealment of a critical fact. Balancing approach is misguidedinterest in prompt justice to a murder/rapist always outweighs value of procedural safeguards. Deceiving lawyer (clients agent) = deliberate deception of client himself

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Colorado v. Spring [1987] [Opinion: Powell]

Facts: S arrested during an undercover firearms purchase and was Mirandized twice. S signed a waiver. Cops asked S about firearms transactions that led to arrest, then asked if he had a criminal record and if he ever shot anyone else. S said he shot a guy once. Month later, cops Mirandized S and obtained waiver, S confessed to murder and did not request counsel. S read, edited, and signed statement. Holding: A suspects awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his 5th privilege. S knowingly and intelligently waived his right. Cops not req. to tell suspect the subject matter of an interrogation o No trickery to invalidate waiver o Some affirmative misrepresentations invalidate waiverthink Spanobut not here [Dissenting: Marshall, Joined by Brennan] TOTC: coercive aspects combined w element of surprise rise to a level of deception. o Waiver is invalid o Reasonable to conclude had S known about feds intent to ask questions about murder, he would not have consented to interrogation w/out attorney.

Missouri v. Seibert [2004] [Judgment of the Court and an Opinion: Souter, Joined by Stevens, Ginsburg, and Breyer]

Facts: S was arrested, taken to police station, and questioned w/out Miranda for 30-40 mins. S gave incriminating statement, then she was given 20-minute break. Cop turned on tape recorder, Mirandized S, and obtained a signed waiver. Cop resumed questioning and S repeated her confession. Cop did not tell her the previous statement could not be used. Holding: When question-first tactic produces a confession prior to Miranda warnings, a repeated confession will be inadmissible unless a reasonable person would have perceived the second line of questioning as a new and distinct experience. Does question first warn later function effectively as Miranda requires? o Must put suspect in position to make an informed choiceotherwise second stage continuous w first. o Warnings are ineffective in preparing suspect for successive interrogation. Suspect does not believe he has a genuine right to remain silentalready confessed Police did not advise her that the prior statement could not be used Impression that the questioning was a continuation of earlier questioningreasonable to regard 2 sessions as continuumdo not convey message that she had a choice about continuing to talk. Elstadheld an Mirandized statement following an un-Mirandized statement can be admissible if the waiver of Miranda is voluntary. Did not follow rule in this [Concurring: Breyer] Courts should exclude fruits of initial unwarned questioning unless failure to warn was in good faith. Effective Miranda approach will serve same function: only when certain circumstances intervene btw unwarned questioning and postwarning statement. [Concurring in the Judgment: Kennedy] Majoritys objective inquiry from the perspective of the suspect is too broad. 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. o Curative measures: ensure a reasonable person in the suspects situation would understand the import and effect of the Miranda warning and waiver.

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[Dissenting: OConnor, Joined by Chief, Scalia, and Thomas] Agrees w plurality that Ss statement is not inadmissible under fruit of the poisonous tree theory and that subjective intent of interrogating officer should not be considered. Would analyze two-step under voluntariness standards o If Ss 1st statement is involuntary, court must examine whether the taint dissipated through passing of time or a change in circumstances. o 2nd statement should be suppressed if S shows its involuntary despite Mirandacourt should analyze on remand.

D. Continuing Validity

Dickerson v. United States [2000] [Opinion: Rehnquist]

Facts: D indicted for crimes, moved to suppress non-Mirandized statement. Court held that 3501, which makes admissibility of statements turn on whether they were voluntary, was satisfied and Congress had the final say on question of admissibility. Holding: Miranda, being a constitutional decision of the Court, may not be overruled by an Act of Congress. Miranda and its progeny in the Court govern the admissibility of statements made during a custodial interrogation in both state and federal courts. Congress has the ultimate authority to modify or set aside judicially created rules of evidence and procedure that arent req. by Constitution o Congress may not supersede decisions interpreting/applying Constitution Miranda is a constitutional decision o Rule applies to state courtscourt cannot hold supervisory power over state courtstherefore, must be Constitutional command. o Language of Miranda: give concrete constitutional guidelines for law enforcement agencies and courts to follow. Miranda is a prophylactic ruledoes not have the full power of a constitutional right [Dissenting: Scalia]

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Chapter 12: The Remedy of Exclusion

Exclusionary rule has little textual support in the 4th Amend. Could say that the issue could best be solved with the law of tort remedies. o On the other hand, looking the origin and development, the 4th has been interpreted and has changed over time to accommodate our needs. 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. This type of effort cannot be prohibited. o Other cops knowingly violate 4thexclusionary rule might be too indirect and attenuated of a punishment to adequately deter. Suppression happens long after the actual offense and officer might not even know about it. o Could argue deterrence of the institution as a whole: promotes professionalism, better training, updating officers on constitutional law. More search warrants applied for? Cost/benefit analysisdeterrence benefits outweigh its substantial social costs. 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. SC is growing increasingly disenchanted w/ the ER, so it places a greater and greater burden on those who invoke the rule to suppress evidence. Not an individual right and applies only where the benefits of deterrence outweigh the costs. o Only in Criminal Proceedingsnot in Habeas cases!

A. Rationale
Mapp v. Ohio [1961] [Opinion: Clark]
Facts: Officers went to Ms house pursuant to info that a suspected bomber was hiding there and there was policy paraphernalia being hidden there. Officers knocked and demanded entrance, but M refused. Hours later additional officers sought entry, forcibly opened the door, and gained admittance. Cops would not allow attorney into the house. Cops handcuffed M for being belligerent and searched through her house. Ultimately, cops found obscene materials. At trial, no search warrant was produced. Holding: All evidence obtained by searches/seizures in violation of the Federal Constitution is inadmissible in a criminal trial in a state court. Weeks: held that 4th barred use of evidence secured through an illegal search/seizure in a federal prosecution. Wolf: declined to apply Weeks exclusionary rule to the States by the DPC. o More than half the states have adopted/adhered to Weeks rule since. o Other remedies for protection have been worthless and futile o Silver Platter doctrine: recently discardedallowed federal judicial use of evidence seized in violation of the Constitution by state agents. ths right to privacy enforceable against States through DPC of 14th 4 o Sanction of exclusion must also be enforceable against themotherwise, unreasonable searches/seizures would be a form of words Purpose of exclusionary rule: o to deterto compel respect for the constitutional guaranty in the only effectively available way by removing the incentive to disregard it. As it stands, the State, by admitting unlawfully seized evidence, serves to encourage disobedience to the Federal Constitution which it is bound to uphold. o Federalismavoid conflict btw Federal and State

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Cardozo: the criminal is to go free because the constable has some cases, this
will undoubtedly be the result. Pg. 945. o Judicial integrity

ER promotes Federal-state cooperation to solve crime

o The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. Pg. 945.
[Concurring: Black] 4th, standing alone is not enough to bar introduction of papers/effects seized in violation o Language is not expressly precluding However, when you consider ban on unreasonable searches/seizures w/ ban against self-incrimination, ER is justified. [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 isnt req., action of trespass against officer would be difficult for a citizen to maintain. [Dissenting: Harlan, Joined by Frankfurter and Whittaker] Court has disregarded stare decisis states still adhere to common-law non-exclusionary rule Federal court cannot point the State in one direction or anotherstate power Trial procedure is w/in state power

Hudson v. Michigan [2006] 5-4 decisionKnock-and-Announce Rule [Opinion: Scalia]

Facts: Cops have warrant to search for drugs/firearms @ Hs home. When police arrived @ house, they announced presence, but waited 3-5 seconds before turning the knob of the unlocked front door and entering Hs home. Holding: Exclusionary rule is not an applicable remedy to a violation of the knock-and-announce rule. 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, however, has always been our last resort, not our first impulse Pg. 955.
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. Pg. 957
Interests promoted by knock-and-announce different than shielding persons, houses, papers and effects: o Protection of human life and limbself-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

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Costs: exclusion of relevant incriminating evidence, get-out-of-jail-free card, difficult for trial court to assess, 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, nothing in 4th says you have to exclude. o

[Concurring in Part and Concurring in the Judgment: Kennedy] K and A protects rights/expectations linked to constitutional principles, not trivial ER will continue Other ways to discipline cops, like civil remedies, regulations, or legislation Suppression is more seriousK 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, not bc of failure to K and A [Dissenting: Breyer, Joined by Stevens, Souter, and Ginsburg] ER should apply to violation of knock-and-announce bc it is inherent in assessing the reasonableness of a search/seizure. Gov. officials will find it easier to proceed w/ what they consider a necessary search immediately and w/out the requisite constitutional compliance. 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. o Admissibility in proceedings other than criminal trials was at issue. Actual entry was connected to unlawful entryentry was a necessary condition to cops presence in Hs home and there presence was a necessary condition in their finding/seizing 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.

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B. Fruit of the Poisonous Tree

4th Exclusionary rule applies to direct products of governmental illegality, but also to secondary evidence that is the fruit of the poisonous tree Example o Unconstitutional search of Ds house, cops seize a diary. Diary names a witness to the murder, who agrees to testify against D at his trial. o Unconstitutional search is the initial illegality: it is the poisonous tree Diary is inadmissible as the direct product of an unlawful searchER o Testimony is secondary or derivative evidencefruit of the poisonous tree (ordinarily inadmissible) Three qualifications: (1) the independent source doctrineevidence is not a fruit of the poisonous tree, not subject to ER (2) the inevitable discovery rule, and (3) the attenuated connection principle Attenuation factors: temporal proximity (immediately after taint or some time later), intervening events, intervening act of free will (Wong Sun was released from jail and voluntarily came back), flagrancy of the violation, and nature of the derivative evidence. BE CLEAR AS TO THE NATURE OF THE POISONOUSE TREETHE CONSTITUTIONAL VIOLATION THAT CONSTITUTES THE INITIAL ILLEGALITY. Threshold issue: whether the evidence is the product of illegal governmental activity.

Silverthorne Lumber Co. v. United States [1920] [Opinion: Holmes]

Facts: Silverthornes arrested @ their homes and detained. While in detention, cop went to their office and took all the books, papers and documents. Cop made photographs/copies of material papers and used in indictment. Originals were returned, but court later subpoenaed their production. Holding: (1) Evidence seized in violation of 4th and any evidence that derives from such a violation cannot be used in the governments case-in-chief; (2) evidence obtained in violation of 4th is not necessarily irretrievably tainted, rather the facts may be used if knowledge of them is gained from an independent source.

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Wong Sun v. United States [1963] [Opinion: Brennan]

Facts: Narcs agents watched Way for 6 weeks, arrested him, and found heroin. Way said he bought it from laundryowner Blackie Toy. Agents went to laundry mat operated by James Wah Toy (not necessarily Blackie Toy) and had Wong say he wanted services. Toy said he didnt open til 8, Wong revealed himself, and Toy ran into living quarters. Agents broke down door, searched premises, and found no drugs. Toy ratted out Johnny on 11th, cops went, entered, and Yee gave over drugs. At station Yee told police he bought heroin from Toy and Sea Dog. Toy was questioned and said Sea Dog was Wong Sun, cops went to his house, wife answered, and officers went into apartment. Officers took Wong Sun from his bedroom in handcuffs and searched apartment, not finding any drugs. Wong Sun, Toy, and Yee were questioned separately; officers put statements together that were read to them. Toy and Sun would not sign the statement. 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. Four items of evidence: (1) Toys statements in his bedroom (2) Heroin surrendered by Yee (3) Toys pretrial unsigned statement (4) Suns pretrial unsigned statement Toys Case: No reasonable grounds nor PC for Toys arrestStatements out o Based on info, would not have been able to get a warrant Ways tip was unreliablenever given info before, name Blackie Toy, unspecific location Flight does not matter bc cop misrepresented his mission at outset o Toys 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 Suns Case: Arrest was w/out probable cause or reasonable grounds o Unsigned confession was not the fruit of that arrestproperly admitted @ trial o Released after lawful arraignment, 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 illegalityeven if the tree is poisonedat some point the fruit from that tree is sufficiently untainted so as to be admissible in a criminal trial. Narcotics taken from Yee o No standing, unrelated to tainted relationship btw Toys statement and surrender by Yee [Concurring: Douglas] PC could not have justified arrest of Toy w/out warrant [Dissenting: Clark, Joined by Harlan, Stewart, and White] Court applies hind-sight, but PC only needs proof sufficient to est. guilt Sufficient PC hereofficers found laundry quickly, Toy ran, arrest was imperative to prevent escape

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United States v. Patane [2004]

Facts: P was arrested, released on bond, and given a TRO. P violated TRO and was arrested. Cop attempted to Mirandize, but P interrupted that he knew his rightswarning was not completed. Cop asked about pistol and P said it was in his bedroom and gave permission for cop to seize it. Holding: Failure to give a suspect Miranda warnings does not require the suppression of the physical fruits of the suspects unwarned but voluntary statements. Failure to Mirandize does not violate Constitutionviolation 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. Self-incrimination Clause is self-executinginvoluntary statements from coercive police interrogations have automatic protection from use in criminal trial. Focus is unwarned statements Failure to give Miranda warnings does not by itself violate suspects constitutional rights or the Miranda ruleviolation occurs when evidence is admitted at trial [Concurring in the Judgment: Kennedy, Joined by OConnor] Concerns underlying Miranda must be accommodated to other objectives of the criminal justice system. Admission of nontestimonial physical fruits does not run the risk of admitting accused coerced incriminating statements. [Dissenting: Souter, Joined by Stevens and Ginsburg] Plurality adds inducement for interrogators to ignore Miranda rule. Miranda violation raises presumption of coercion5th extends to exclusion of derivative evidence. [Dissenting: Breyer] Courts should exclude physical evidence derived from unwarned questioning unless failure to Mirandize was in good faith.

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Limits on Excluding Evidence

2. Independent Source and Inevitable Discovery

Independent source doctrine: applies if evidence is initially discovered unlawfully, but is later obtained lawfully in a manner independent of the original discovery. Inevitable Discovery rule: evidence is causally tied to earlier governmental illegality, but the prosecutor asserts that the police would have discovered the evidence lawfully despite the unconstitutional conduct.

Nix v. Williams [1984] [Opinion: Burger]

Facts: Christian burial speech case. Deciding whether evidence pertaining to discovery/condition of victims 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. 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 ruleevidence properly admitted on ground that it would ultimately or inevitably have been discovered even if no other violation of any constitutional provision taken place. 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. o Independent source doctrine: does not apply here bc it allows admission of evidence discovered by means wholly independent of any constitutional violation. Prosecution must est. by a preponderance of evidence that the information would have been discovered by lawful meansthen deterrence rationale has little basis, so evidence should be received. o Low burden Detectives 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. Body was bound to be discovered by efforts already underway. 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 unconstitutionalacted as many police officers would have done under similar circumstances and in light of then-existing law. [Concurring in Judgment: Stevens] Condemns officers conduct: o Speech was an attempt to substitute and ex parte, inquisitorial process for adversarial process o Not a case where the constable blundered, but one where the constable planned an impermissible interference w the right to assistance of counsel. Officers question leads to costly litigation--$$ and labor [Dissenting: Brennan, 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 meansdoes not do any damage to constitutional protections exclusionary rule is meant to enforce. o Gov. should have to satisfy heightened burden of proof before using evidenceclear and convincing evidence

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Murray v. United States [1988] [Opinion: Scalia]

Facts: Cops watched M based on info from informant and saw individuals load a dark container onto a tractortrailer. M later gave truck to other drivers, who were followed, arrested, and the vehicles lawfully seized. Cops found pot in vehicles. Agents went into warehouse and forced entry, saw in plain view bales of pot. Applied for a search warrant, but did not mention prior observations. Cops reentered warehouse w warrant and seized bales and notebooks. Holding: Independent source doctrine applies to evidence initially discovered during an unlawful search, but later obtained independently from activities untainted by the initial illegality. Independent Source Doctrine: applies to 4th, 5th, and 6th violations and applies to evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality. 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. Present case: knowledge of pot was obtained during unlawful entry but also at entry pursuant to warrant. 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, but worse one. Later lawful seizure must be genuinely independent of an earlier, tainted one Ultimate Q: whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence @ issue. Warrant was supported by PC, which was based on an affidavit that did not include anything learned by the police during the illegal first entry. 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, would be poisoned. [Dissenting: Marshall, Joined by Stevens and OConnor] Courts decision fails to provide guarantees that the subsequent search was independent of the illegal search and undermines the deterrence function of the exclusionary rule. o Agents made no effort for warrant prior to illegal entry o To insure independence, must rely on demonstrated historical facts capable of ready verification or impeachment Here: same officers, warrant obtained immediately after [Dissenting: Stevens] Against Segura bc it would provide agents w incentive to engage in unconstitutional violations of the home.

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3. Good Faith United States v. Leon [1984]**Objective analysis [Opinion: White]

Facts: Confidential informant of unproven reliability told police two people were selling drugs @ their resident, said he had witnessed a sale 5 months earlier. Police started an investigation, saw druggies coming in and out w small packages and saw relevant activity w respondents automobiles. Police got facially valid search warrant for houses and cars. Holding: Evidence seized in good faith by officers reasonably relying on a search warrant issued by a neutral magistrate is admissible in the prosecutions case in chief if it was objectively reasonable for the officer to believe the warrant was properly issued. 4th does not forbid introduction of illegally seized evidence in all proceedings ER sanction is imposed separately from 4th violationnot constitutionally bound o Weighed analysis of costs and benefits of preventing use in the prosecutions case Social costs of ER: interference w criminal justice systems truth-finding so some guilty Ds go free/receive reduced sentences. Benefits: when officers act in objective good faith or transgressions are minor, 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. Preference for warrantsdeference to magistrates determination o ER not designed to punish the errors of judges and magistratesthey dont 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. 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. [Concurring: Blackmun] 4th is not a constitutionally compelled result of 4th. If good-faith exception to ER changes police compliance w 4thcourt 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.

[Dissenting: Brennan, Joined by Marshall] Court is gradually abandoning ERhere allows use of illegally obtained evidence against the individual whose rights have been violated. Bill of Rights restrains the power of Gov. as a wholenot 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 locationno standing to objectsuppression will not weaken Gov.s case [Concurring in No. 82-963 and Dissenting in 82-1771: Stevens] Search/seizure cannot be both unreasonable and reasonable If no PCunreasonable Framers meant to address the unreasonable issuance of warrantsconcerned about overreaching warrants. Where PC is lacking, a reasonable person in the circumstances would not believe there is likelihood for the search to produce evidence.

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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. 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 its valid (Groh)

Herring v. United States [2009]**5-4 Decision [Opinion: Roberts]

Facts: H went to get something from his impounded truck, cop checked for outstanding arrest warrants, and found there was one for Hs failure to appear on a felony charge. Cop followed H, pulled him over, and arrested him. SILA found drugs and gun (felons cannot possess). Holding: When police mistakes are the result of negligence, rather than systemic error or reckless disregard of constitutional requirements, ER does not apply to violation of 4th. When 4th violation occurs and search or arrest was unreasonable, does not necessarily mean exclusionary rule applieslast resort, not first impulse ER: police conduct must be sufficiently deliberate, that exclusion can meaningfully deter it o Must be worth the price paid by the justice system o Deters deliberate, reckless, or grossly negligent conduct, or systematic negligence. o Good faith analysis is objective o Does not suggest all recordkeeping errors by police are immune from ER Circumstances: neighboring countys sherriff-run database; negligence was isolated, not recurring. Also the court uses attenuated three times; turns also bc the database did not even belong to the county in which the arrest occurred. [Dissenting: Ginsburg, Joined by Stevens, Souter, 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 Sherriffs Dept is in the position to remedy the situation By restricting suppression, H has no remedy No incentive to maintain up-to-date recordsofficer wanted to arrest H and used records to make legit [Dissenting: Breyer] Arizona v. Evans: held recordkeeping errors do not trigger ER, as long as police reasonably relied upon court clerks recordkeepingdistinction btw judicial errors and police errors.

Fellers v. United States [2004] [Opinion: OConnor]

Facts: F was indicted and cops went to his house to arrest him, saying they came to discuss his involvement in drug distribution. F says he used drugs w four people in indictment. After 15 mins, cops bring F to jail and Mirandize him, F waives and reiterates earlier inculpatory statements. H says statements in home should be suppressed as violation of 6th. 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, regardless of whether officers conduct constituted an investigation. Does not matter if its an interrogation for 6th claims o Officers deliberately elicited information from F Under Massiah: 6th attaches @ indictment o Officers actions violated 6thno counsel or waiver Elstad fruits analysis does not apply bc its not a 5th case

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Kansas v. Ventris [2009] [Opinion: Scalia]

Facts: V and girl rob and kill a man. While in jail, V tells an informant placed in Vs cell instructed to keep [his] ear open and listen for incriminating statements that he shot the man and robbed him. At trial, V lied on the stand and blamed it on the girl. State said statement could be let in for impeachment purposes bc D didnt have the license to get on the stage and lie. Court agreed. Holding: Statement taken in violation of 6th right to counsel is admissible in trial for impeachment of Ds conflicting statement. Massiah right is a right to be free of uncounseled interrogation, and is infringed @ the time of the interrogationwas infringed here when State used jailhouse informant. 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. Case is about the scope of a remedy for constitutional violation that already occurred: o Even though the obtaining of evidence was constitutionally invalid, it is admissible for impeachment Balancing test: o Interests: preventing perjury, assuring integrity of the trial process. o Costs: little deterrenceofficers would not risk losing a properly obtained statement [Dissenting: Stevens, Joined by Ginsburg] 6th is violated when the fruits of the States impermissible encountered w D are used for impeachment, just as it is when the fruits are use for the prosecutors case in chief. Introduction of illegally obtained evidence @ trial violates constitution. o Violation started @ interrogation, compounded @ trial o Damaging to adversarial process Court is privileging the prosecution @ the expense of the Constitution Prosecutor may introduce testimony that contradicts the Ds: (1) direct testimony; or (2) answers to legit questions put to him during cross-examination.

U.S. v. 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 officers qualified immunity Brinegar [Dissenting: Jackson]
4th freedoms are indispensible, when they are taken away it cowers the population and puts terror in every heart. o Only flagrant abuses come to the attention of the courts bc when officers find nothing incriminating, there is no redress. o Diff. from other rights bc there is no way for individual to invoke advance protection (injunction)

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