King CrimPro Fall2014

Criminal Procedure – King – Fall 2014 – Dressler Casebook

4T H AMENDMENT

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches & 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

THRESHOLD

SEARCH SEARCH AFFECTS PRIVACY INTERESTS Katz v US (1967): formally rejected property rights/trespass approach in holding that recording of

phone booth conversations was 4th Amdt. search. o 4th Amdt does not protect what one knowingly exposes to the public (even if in home/office) o Areas accessible to the public may be protected if the person seeks to preserve privacy: by entering a

phone booth & shutting the door, occupant seeks to exclude “uninvited ear.” By bugging & recording his convo police violated the privacy upon which he justifiably relied in using the phone booth.

Police conduct amounts to a SEARCH when it intrudes upon a reasonable expectation of privacy: 1. Person must have an actual, subjective expectation of privacy; and 2. The expectation must be one that society is prepared to recognize as reasonable OBJECTIVE PRONG (#2): where most issues arise. Relevant factors in analysis– o Site/nature of the property inspected:

Open fields = no protection Curtilage = some protection Home = strictly protected

o Extent to which the person has taken measures to keep information, his property, or an activity private 1- Per Katz, cannot possess reasonable expectation of privacy in what is knowingly exposed to

the public or is otherwise in open view 2- One who voluntarily conveys info/property to another assumes the risk that the individual is

a govt. agent or will transmit the info/property to a govt. agento Degree of intrusion experienced

INFO DIVULGED TO 3RD PARTIES: “Assumption of risk”

False Friends: Eavesdropping by criminal informants/undercover agents consistently upheld under 4th Amdt.US v White (1971): through electronic radio transmitter, police monitored W’s conversations with informant taking place in W’s home, restaurant, & in CI’s car/home. Issue: whether his expectation of privacy in the conversations was objectively reasonable. Court ruled that it wasn’t & held that no search occurred.

General rule: no search occurs when CI listens to convo and later reports it to police. Court reasoned that analysis shouldn’t change merely because the info is recorded. No meaningful difference between electronically equipped agent & unequipped agent. + Info is more accurate this way

Harlan Dissent: concerned with human relationships. This decision will undermine the confidence among people in society. Applying 4th Amdt. here wouldn’t end eavesdropping, would only require a warrant first


Phone Numbers:Smith v Maryland (1979): per police request, telephone company installed a pen register to disclose the numbers dialed from suspect’s home; nothing about the contents of the communications were discovered. Held: no reasonable expectation of privacy in the numbers he dialed.

Subjective expectation – speculative. Everyone is aware that the phone co. can record phone numbers dialed, if only for the purpose of identifying harassment.

Even if S had a subjective expectation of privacy, the expectation was unreasonable. By knowingly transmitting info to a 3 rd party, the telephone users assumes the risk that it will be transmitted to law enforcement.

Dissent: Improper comparison to “false friend” cases – one can exercise discretion in deciding who to share confidential info with, but society has no choice but to use telephones. “Privacy is not a commodity possessed absolutely or not at all.” Many people wish to avoid disclosure of their personal contacts.

Electronic Tracking Devices:US v Knotts (1983): K suspected of making drugs. Without a warrant, police installed a beeper on a chemical drum they knew would be sold to K. They followed Ks car across state lines for about 100mi and at one point, they lost visual surveillance, & they found the drum from the beeper signal outside a cabin. From this, police got a warrant to search the cabin. Held: use of beeper did not constitute a search, so no warrant was needed to monitor Ks movements.

1- Beeper did not provide police with any info that could not be obtained by visual surveillance from public places along the route. K knowingly exposed his movements to others by travelling on public roads. MODE of surveillance irrelevant.

2- Beeper had limited use: did not reveal info as to Ks movements within any private place (i.e. the cabin).

COMPARE: US v Karo (1984): In this case, beeper allowed police to monitor movement of a container inside homes as well as public places. The info obtained was used to get a warrant and go inside the home. Held to be an unreasonable search. CLASS NOTES:

o Intruding upon a constitutionally protected area. Revealing important info about the inside of a home. o Augmenting the senses not necessarily a good argument – by forcing law enforcement to do the legwork,

we require them to make choices re who they follow & what types of cases they prioritize. This is a good sorting mechanism, because we want law enforcement to be selective in the cases they pursue.

OPEN FIELDS DOCTRINE: ENTRY OF AN OPEN FIELD DOES NOT IMPLICATE THE 4TH AMDT. (Bright-line rule). Open field = any unoccupied or undeveloped land outside the curtilage—need not be “open” or a “field o Curtilage = area immediately surrounding & associated with the home (‘white picket fence’)

protected. Extends intimate activity associated with sanctity of home & man’s private life. Areas that are protected by traditional property laws (trespass) but NOT entitled to 4 th Amdt.

protection Oliver v US (1984): police without warrants entered private property, ignored “no trespassing” signs,

walked around locked gate/wall, & observed plants not visible from outside the property. Held: no legit expectation of privacy in activities occurring in open fields, even if the activity occurring there could not be viewed except by trespassing in violation of civil or criminal law.

o 4th Amdt. meant to protect “enclaves” like homes from govt. interference. Open fields do NOT provide the setting for those intimate activities that 4 th Amdt. is meant to shelter from govt. interference.

o “No trespassing” sign does not effectively bar intruders, and anyway—the info could lawfully be observed by air. Any expectation of privacy thus unreasonable.

Whether Land is Within or Outside the Curtilage: 1. Proximity of the land to the home;


2. Whether the area is included within enclosures surrounding the house; 3. Nature of the use to which the area is put; 4. Steps taken by the resident to protect the land from observation US v Dunn (1987): Ds ranch enclosed by a fence, and another fence surrounded the ranch house.

Approx. 50yds beyond the second fence were 2 barns, each enclosed by a fence. Fed climbed over the perimeter fence & an interior fence; smelled acid commonly used to make drugs coming from one of the barns. Climbed over the fence, and without entering the barn he peered in to find incriminating evidence. HELD: barns outside the curtilage of the ranch house. Relevant that –

o 60yds from house & 50yds outside the fence surrounding it. o Officer had objective evidence the barns weren’t being used for intimate, home-related activitieso D did not take sufficient steps to prevent observation into the barn from the open-field vantage point

AERIAL SURVEILLANCE: NON-SENSE-ENHANCED AERIAL SURVEILLANCE BY THE GOVT. OF ACTIVITIES OCCURRING WITHIN THE CURTILAGE OF A HOUSE DOES NOT CONSTITUTE A 4TH AMDT. VIOLATION 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 with the use of a home/curtilage California v Ciraolo (1986): Police got a tip that C was growing weed in his backyard, but could not see

in due to a 10ft fence. Cop obtained a private plan to fly over the backyard at an altitude within public airspace per FAA regulations. The vantage point allowed cop to see plants in Cs yard. HELD: not a search.

o Subjective prong – C had clear intent to maintain privacy, but Ct. didn’t find “expectation” because 10ft isn’t high enough to block someone riding atop a truck or 2story bus.

o Either way – not objectively reasonable. Police need not shield their eyes from objects exposed to them even in the curtilage. Fact that one has taken measures to restrict some views does not preclude police from observing them from a public vantage point where they have a right to be. In an age where private & commercial flights in public airways is routine, it’s unreasonable to expect privacy from the air.

o Powell Dissent: Fact that surveillance was done in a public navigable space, & reliance on the fact that the public could see the activity, were irrelevant. This activity was directed toward viewing that home, and falls within the expectation of privacy—commercial passengers on a flight pay no more attn. than a passing glance.

Florida v Riley (1989): Court extended Ciraolo to cover helicopter inspections, which allow for much lower-altitude surveillance. Police observed plants growing within the curtilage (in a greenhouse that was missing 2 roof panels). 5-4 HELD: not a search. Essentially justified on the same grounds as Ciraolo, i.e. that public helicopter flights were common, and placed the burden on R to prove that such flights were “unheard of” in the vicinity of his house. Limiting language: would’ve been different if –

o Cop was not flying in accordance with FAA regulation—i.e. if it had been a plan and not a helicopter. ( MODE of inspection mattered here).

o There had been any interference with Rs normal use of the greenhouse or other parts of the curtilage. No intimate details observed; no dust, noise, or threat of injury.

SURVEILLANCE OUTSIDE THE CURTILLAGE, NEAR A HOUSE, BUT NOT IN AN OPEN FIELD:California v Greenwood: Person has NO reasonable expectation of privacy in garbage enclosed in a bag & left for collection outside the curtilage of a home. NO search occurs when an officer opens a trash bag left at the curb & sifts through its contents.

Subjective prong – G might have had a subjective expectation that the trash wouldn’t be opened by police or the public.


Objectively – unreasonable. Common knowledge that garbage bags left on the curb are readily accessible by animals, children, scavengers, snoops, & other members of the public.

In other words: (1) 4th Amdt. doesn’t protect info knowingly exposed to the public, per aerial surveillance cases; and (2) one cannot have a reasonable expectation of privacy in info voluntarily conveyed to others (Smith).

o Dissent – note distinction here: G only voluntarily disclosed the container that enclosed the info, NOT the info itself. Takes issue with the fact that, based on the mere possibility of snoops, G has no constitutional expectation of privacy. (i.e., Would possibility of burglars negate expectation of privacy in the home?).

SENSE-ENHANCED TECHNOLOGY: Dow Chem. v US (1986): EPA agents photographed Dow industrial complex from altitude as low as

1200ft with floor-mounted precision aerial mapping camera. Court upheld:o Area photographed was NOT an area immediately adjacent to a private home, where privacy

expectations are heightenedo EPA was NOT employing some ‘unique sensory device that, for ex., could penetrate the walls of bldgs.

and record conversations’—rather, a conventional but precise commercial camera commonly used in mapmaking.

Kyllo v US (2001): Fed suspicious that K was using high-intensity lamps in his home to grow; used thermal-imager to scan the triplex in which K lived, from a point across the street. Scanning showed that the roof of the garage & a side wall of the home were substantially warmer than the rest of the bldg. From this info, fed got a warrant to search the home. HELD: Use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a 4 th Amdt. search .

Using technology to obtain info re the interior of the home that could not otherwise be obtained without physical intrusion into a constitutionally protected area constitutes a search & is presumptively unreasonable without a warrant—at least where the technology is not in general public use.

o Homes are entitled to special protection; there must be some minimal level of privacy that cannot be eliminated through the use of technology.

o Protection of the home is NOT defined with regard to the quality or quantity of the info obtained. Entirety of the home is safe. If the 4th Amdt. protection were limited to intimate activities, then the Court would have to undertake the impossible task of defining what constitutes intimate activity.

4-J Dissent: The info obtained was exposed to the general public from outside the home; no details re the interior were revealed heat waves are like odors, & any expectation of privacy is unreasonable

o Passerby could notice heat emissions through the vents; so neighbors could invite police over to do so Scalia counter: if true, then using a microphone to eavesdrop from exterior would be okay

o Officials need not “overt their technology” from detecting emissions in the public domain. Expectation of privacy would be manifested through insulation.

US v Jones (2012): 9-0 Court held that tracking suspect through attachment of GPS was a search violative of the 4th Amdt. Majority Opinion: Katz test is not a substitute but a supplement for the common-law trespass test.

Because this involved a property issue—unlike Knotts—Court didn’t even need to address the Katz test. o LUNA: What about the open fields/barn trespass cases (Oliver); the case where police took a scratch of

paint off accused’s car to link him to a hit-&-run; etc.? How far is new concern with property/trespass going to go? Was Knotts wrongly decided, or was the issue just not before the Court because the facts were distinguishable?


Alito: Placement of the device itself should be a minor issue in this case. More attn. should’ve been paid to the extensiveness of the monitoring

PHYSICAL MANIPULATION OF AN OBJECT:Bond v US (200): border patrol agents walked through stopped Greyhound bus at a checkpoint & routinely squeezed the passengers’ luggage. In Bs bag, felt a brick. B allowed them to open his luggage & they found drugs. HELD: pre-consent squeezing of luggage constituted a search.

Physically invasive inspection is more intrusive than purely visual inspection. Subjective prong – satisfied: sought to preserve privacy by using an opaque bag & placing it directly

above seat. Objectively – reasonable: distinction between the common passenger & the govt. official basically

distinguished based on the mens rea of the person handling the bag: whether they’re just trying to make space or whether they’re handling the bag for purposes of determining its content.

SEIZURE SEIZURE AFFECTS PROPERTY INTERESTS: SEIZURE occurs when there is some meaningful

interference with a person’s possessory interests in the property US v Karo (1984): police installation of a beeper in a container of chemicals with consent of the seller

does NOT constitute a 4th Amdt. seizure on the buyer having no knowledge.o Beeper’s mere occupancy of the space didn’t interfere with Ks possessory interest in any meaningful

way—at most, technical trespasso 3-J Dissent: Owner of property has an absolute right to exclude, which is infringed when the govt.

attaches the monitoring device & thus converts the property to its own use. This interference is meaningful in that it substantially transforms the character of the property—govt. was asserting dominion & control.

OBJECTS SUBJECT TO SEIZURE WHERE PROBABLE CAUSE FOUND: 1. Contraband: evidence that may not lawfully be possessed by a private party 2. Fruits of a crime 3. Instrumentalities used in the commission of an offense—e.g. weapon, getaway car 4. Mere evidence: item of value to the police solely because it will help in the apprehension or

conviction of a person for an offense

NOTE: Distinction between seizure after a person has relinquished control & seizure from the immediate custody & control of the owner effectively seizes the person.

SEIZURE OF PERSONS SEE TERRY SEIZURE

PROBABLE CAUSE “UNREASONABLE” SEARCH/SEIZURE IS ONE THAT OCCURS IN THE ABSENCE OF PROBABLE CAUSEo Court has held that what is required to be reasonable is a warrant (i.e. the 2 clauses must be read in

conjunction with one another). In practice, however, this amounts to a preference for a warrant, with various exceptions. In other words –

1. Preference that inferences be drawn by a neutral & detached magistrate, rather than suspicious police “engaged in often competitive enterprise of ferreting out crime”

2. Even where police are justified in acting without prior judicial authorization (warrant), probable cause is usually required


PROBABLE CAUSE exists where facts & circumstances within the officers’ knowledge & of which they have reasonably trustworthy info are sufficient in themselves to warrant a man of reasonable caution in the belief that:

o SEARCH: a specifically described item subject to seizure will be found in the place to be searchedo ARREST: an offense has been or is being committed by the person to be arrested Defendant may bring two procedural challenges:o (1) Govt. violated 4th Amdt. by search/seizure without a warranto (2) Regardless of warrant, police lacked probable cause

DETERMINING PROBABLE CAUSE: Bald & illuminating assertions of suspicion entitled to NO weight – i.e. magistrate should not consider

officer’s assertion that he “has cause to suspect & does believe” that seizable articles will be found in a place unless the officer provides the reasons for his belief

Direct information may always be considered – UNLESS a magistrate has reason to believe that the affiant has committed perjury or recklessly misstated the truth

o Affiant’s info considered reasonably trustworthy because he is under oath o Knowledge is firsthand, grounded in personal observations Hearsay (Informant) information – CREDIBILITY is the determinative factor , because: (1) informants

are untrustworthy by nature; & (2) sources of informant’s info varies

Whether info obtained from an informant is sufficiently trustworthy to justify magistrate’s consideration:Illinois v Gates (1983): Police received anon tip by mail that a couple was moving significant weight. Informant provided info re the couple’s procedure for obtaining the drugs in FL & driving them back for distribution in Chicago suburb, including specific dates of upcoming pickup. Police verified many of the claims in the tip, & followed the accused down to FL. While G was driving back to Ill., police obtained a warrant & searched the car upon Gs arrival, finding significant quantities of drugs, as well as weapons. Court ABANDONS Aguilar-Spinelli 2pronged test in favor of “totality of circumstances” approach. Informant’s veracity & basis of knowledge are considered along with all other indicia of reliability (& unreliability)

Magistrate’s determination is a common-sense judgment involving incomplete info taken together when evaluating overall reliability, a deficiency in one factor may be compensated for by a strong showing in another.

o Here, informant provided very specific details indicating strong basis of knowledge, & there was enough independent police corroboration probable cause shown despite lack of veracity.

WARRANT CLAUSE

WARRANT CLAUSE INFORMS THE REASONABLENESS CLAUSE, but there are some exceptions

ARREST WARRANTS NOT required to arrest someone in a public place REQUIRED to arrest someone in their own home INSUFFICIENT when arresting someone in another person’s home (need search warrant per

Steagald)

ARREST IN ARRESTEE’S HOME:Payton v New York (1980): police had probable cause to arrest P for a felony. They went to his home without a warrant to arrest him. They heard music inside & knocked but no one answered. Waited for a minute then broke in with a crow


bar. Nobody was inside but they seized evidence in plain view. Held: Absent exigent circumstances, nonconsensual entry into a person’s home in order to make an arrest requires an arrest warrant & reason to believe the suspect is in there.

CRITICAL: basic principal of the 4 th Amdt. is that intrusion into the home without a warrant is unreasonable.

Persons are protected objects of the 4th Amdt. & when law enforcement enters a home to conduct an arrest, they will see everything in plain view & may search incident to the arrest. Warrant is required to protect that privacy interest. Warrantless intrusion in the home is presumptively unreasonable.

Exigencies Justifying Warrantless Entry: Hot pursuit Police have reasonable cause to believe that if they do not enter immediately: o 1. Evidence will be destroyed;o 2. Suspect will escape; ORo 3. Harm will result to the police or others either inside or outside the dwellingo Considerations: gravity of the crime & the likelihood that the suspect is armed

Minnesota v Olson (1990): 2 guys robbed a gas station & killed the attendant; gunman arrested immediately with the murder weapon but O escaped. The next day police learned O was hiding with 2 women in a duplex; entered without a warrant & arrested the suspect. Held: NOT justified on exigency grounds.

Police knew O wasn’t the murderer—thought he drove the getaway car. Already retrieved the murder weapon. No indication that O was of danger to the 2 women in the

duplex. Police were surrounding the bldg. in daylight—evident that suspect wasn’t going anywhere

ARREST IN A THIRD PERSON’S HOME: THE STEAGALD PRINCIPLESteagald v US (1981): Police had warrant to arrest L, and had info that L could be reached for the next 24hrs at S’s home. A few days later they went to S’s house & entered without consent. Could not find L but saw drugs resulting in S’s arrest. Held: Arrest warrant for L was inadequate safeguard for S’s independent 4th Amdt. right to privacy in his home.

A person whose home is searched for the presence of a guest is entitled to a prior judicial determination of probable cause to search the premises for the person to be arrested.

EXCEPTIONS: emergency or consent

SEARCH WARRANTSELEMENTS OF A VALID SEARCH WARRANT:

1. Probable cause 2. Supported by oath or affirmation 3. Neutral & detached magistrate: warrant is invalid if the issuing magistrate, by behavior in a

particular case, manifests a lack of neutralityo Lo-Ji Sales v New York (1979): judge accompanied officers to a bookstore suspected of selling obscene

materials & while there, inspected the materials to determine which ones were obscene. HELD: not sufficiently detached not acting as a judicial officer but as an adjunct law enforcement officer.

4. Particularity: warrant MUST particularly describe the place to be searched, & persons/things to be seized.

o Warrant that lacks particularity undercuts the probable cause requirement by permitting too much police discretion in its execution.

o Enough that the description is such that the officer with the search warrant can reasonably identify the place to be searched/thing to be seized


E.g. urban property: enough to provide the street address, not necessary to describe the home Particularity with regard to the thing to be seized: CANNOT search where the thing could not

possibly be found. (E.g. if you’re looking for a shotgun, cannot search a jewelry box). Should NOT be left to officers’ discretion: warrant should instruct them as to where

they may go or search.

EXECUTION OF A SEARCH WARRANT: KNOCK & ANNOUNCE RULE: Absent special circumstances, officer is not permitted to enter a home

forcibly to execute a warrant, unless he: (1) indicated his presence, (2) identified himself as an officer, (3) stated his purpose for entering, (4) requested admittance, & (5) was refused admission

Wilson v Arkansas (1995): suggested that knock & announce rule may not apply in circumstances where –

o Threat of physical violenceo Hot pursuit – e.g. prisoner escapes from custody & retreats to his dwellingo Police have reason to believe that evidence would likely be destroyed if advanced notice were given Exceptions to knock & announce rule : case-by-case analysis is required. o Richards v Wisconsin (1997): invalidated state’s per se exception for search warrants involving felony

drug investigation. Justifications for exception will not apply in every drug case—justification must be particularized.

o Police need ONLY reasonable suspicion to justify exception to the rule How long do police have to wait after knocking & announcing? US v Banks (2003): police had

warrant to search Bs 2br apt. for cocaine. Knocked loudly & called out “police search warrant.” Waited about 15-20sec & broke in with a ram, entered, & executed the warrant. B was in the shower. UPHELD: reasonable amt. of time to wait before suspecting that cocaine would be gone if they waited any longer. So –

o Less time is warranted when searching for drugs (which can be flushed) or an armed robbero If searching for something larger (e.g. stolen piano), you have to wait longer Anticipation of a warrant: Illinois v MacArhtur (2001): police had probable cause to believe M had

drugs hidden in his trailer home. Went & asked permission to search but M refused. One officer stayed while the other went to apply for a search warrant. M had left his trailer & was standing on the porch. Officer would not let him reenter until a warrant was obtained. Allowed M to go in to get cigarettes, etc. but officer stood guard just inside the door. Two hrs. later police returned with warrant, searched, & found contraband. UPHELD: warrantless temporary seizure of the premises here was reasonable in the circumstances –

o 1- Had probable cause to conduct the search for contrabando 2- Had good reason to fear that, unless restrained, M would destroy the drugso 3- Made reasonable efforts to reconcile law enforcement needs with the demands of personal privacyo 4- Duration of the restraint was limited (2hrs reasonable to get the warrant)

SCOPE OF SEARCH PURSUANT TO WARRANT: Police may only search containers large enough to hold the criminal evidence for which they are

searching—physicality of item sought constrains the scope of where they can search Officers may seize an item NOT described in the warrant, if they have probable cause to believe

that it’s a seizable item—contraband, or a fruit, instrumentality, or evidence of a crimeo Plain view element: okay as long as police are lawfully searching the premises Info that becomes available to officers immediately before or during the execution of the warrant MAY

require them to cease or narrow their search—notwithstanding the dictates of the warrant


o Maryland v Garrison: IF officers learn or should have learned that the place to be searched is actually a duplex, they are obliged to confine their search.

Other individuals on the premises: Ybarra v Illinois (1979): officers had a warrant to enter a tavern & search it and a specifically named bartender for heroin. 8 cops entered while the bar was open to the public & frisked each of the patrons for weapons. While frisking Y, who was not acting suspiciously, cop felt something in his pocket that felt like a cigarette pack with objects in it. He pulled it out to find heroin in the pack. VIOLATION.

o One’s propinquity to a suspect does NOT give rise to probable cause to search that persono Warrantless search of others on the premises requires independent probable cause AND a reason for

dispensing with the warrant requirement (e.g. consent or exigency) Seizure of persons during warranted searches: Michigan v Summers (1981): Warrant to search a

residence for contraband founded on probable cause implicitly carries with it the limited authority to detain occupants of the premises while a proper search is conducted.

o Justifications: (1) to avoid flight of an occupant with the evidence sought; (2) to reduce the risk of bodily harm to police & others; (3) to facilitate the search by inducing the detained occupants to open locked containers or doors.

1. EXIGENT CIRCUMSTANCES Cases where police act without a warrant because they reasonably believe that criminal evidence

will be destroyed or a suspect will avoid capture if they take the time to seek a warrant 1. Exigency that justifies the warrantless action should restrict the scope of the resulting search 2. Exception lasts no longer than the exigency: once the exigency ends, police may no longer search

without a warrant or MUST justify their continued warrantless conduct on the basis of a different exception

o Mincey v Arizona: police went to murder scene, found other victims & requested emergency assistance but refrained from further investigation. Later when local police arrived they searched the house for 4 days without a warrant. HELD: search not justified by emergency – all individuals in the apt. had been located before the investigating officers arrived to search. Would have been easy to get a warrant.

3. Exigency does NOT dispense with probable cause requirement, only justifies lack of warrant DISTINCTION between criminal law enforcement function & community caretaking function:

caretaking is “divorced” from detection, investigation, or acquisition of evidence relating to a crime. Probable cause & warrant are not required ONLY need reasonable grounds to believe emergency assistance is needed. MAY seize any plain view evidence in the process.

o Brigham City v Stuart: police responded to a noise complaint at a party; witnessed fight inside the home. Announced presence, but no one responded, so they entered to break up the fight. JUSTIFIED BY EXIGENCY: police may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. Police faced with ONGOING violence IN home.

o Compare – Welsh v Wisconsin : W suspected of driving drunk or very sick. Police went to his home & entered without consent or arrest warrant. Found him in bed & arrested him for DUI—a noncriminal offense. HELD: unlawful. “Exigency” of needing to ascertain his BAC is not a justification.

2. SEARCHES INCIDENT TO ARREST May search (1) person of the arrestee & (2) area within control of the arrestee “Grabbing area

rule” Justifications: o Need to disarm suspect in order to take him into custody


o Need to preserve evidence on his person for later use at trial Chimel v California (1969): police arrived at Cs home with an arrest warrant. Wife let them in to wait

for him to get home. When he got home they arrested him & searched the entire 3story house as incident to arrest. Held: search of the entire house here was unconstitutional.

o SCOPE of search includes “grabbing area” into which an arrestee might reach in order to grab a weapon or other evidentiary items. Unreasonable to expand the scope to the remainder of the premises.

o Concern that law enforcement might use an arrest in a home as a pretext to engage in a full search by arranging to arrest individuals at home rather than elsewhere

o Dissent: reasonable to search home here. Wife could destroy evidence in the interim. US v Robinson (1973): R pulled over for driving without a license. While searching him, found heroin in

a cig packet. Held reasonable: search of person incident to lawful custodial arrest can be conducted by the fact of the arrest itself not just an exception to the warrant requirement, but also reasonable.

o Irrelevant for 4th Amdt. purposes that police didn’t indicate any subjective fear of arrestee or suspect that he was armed

NO such thing as a search incident to citation must actually be an arrest to justify the warrantless search.

o BUT – all you need is the authority to conduct an arrest. Once you have the authority, irrelevant that the crime does not carry with it the ultimate punishment of jail time. (Atwater: actual punishment for the crime was $25 fine, but woman was taken to jail & search upheld).

ARRESTS OF AUTOMOBILE OCCUPANTS:NY v Belton (1981): cop arrested 4 occupants of a car that he stopped for speeding after he smelled burnt weed in the car & saw an envelope on the floor with a term he associated with weed written on it. Removed occupants from car and separated them. Went back to the car and searched a jacket in the backset; opened a pocket and found cocaine. UPHELD.

In all cases, police may conduct a contemporaneous warrantless search of the passenger compartment of a vehicle, including all containers therein, incident to a lawful custodial arrest of the occupants.

Generally – articles inside the narrow compass of the passenger compartment of a car are inevitably within the arrestee’s grabbing area. (Ct. says this as acceptable as a natural exception to Chimel).

Arizona v Gant (2009): G arrested for DWLR; after he was handcuffed and locked in the back of the patrol car, cops searched his car & found coke in a jacket on the backseat. HELD: warrantless search unjustified.

o 1. Police are authorized to search a vehicle incident to a recent occupant’s arrest ONLY when the arrestee is unsecured & within reaching distance from the passenger compartment at the time. Belton should not be read so broadly. NO MORE BRIGHT LINE

o 2. Circumstances unique to vehicle context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of the arrest might be found in the car. i.e. when occupant is arrested for traffic violation, there will usually be NO reasonable basis to believe the car contains relevant evidence.

PRETEXTUAL STOPS & ARRESTS:Whren v US (1996): police were patrolling a high drug area in an unmarked car; saw 2 black youths, driver looking into passenger’s lap; followed the car until it stopped, & officer got out to approach the car to giver the driver a warning for traffic violations. When they pulled it over they saw crack & arrested the guys. Ds argued that concern with low-level traffic violations + stop conducted by undercover police (who had no authority to do so) pretext.

9-0 HELD: As long as police had an objective reason to conduct a traffic stop, the fact that they had a subjective motive unrelated to the stop is irrelevant for 4th Amdt. purposes.

3. CARS & CONTAINERS THEREIN


JUSTIFICATIONS FOR WARRANTLESS, NONCONSENSUAL SEARCH OF AUTOMOBILE: 1. Incident to lawful arrest 2. Community caretaking function of inventorying a car after it has been lawfully seized & towed

from a public road 3. International borders 4. Limited situations when driver is stopped for traffic violation Driver has 3 interests at stake: (1) unimpeded locomotion; (2) possessory interest in car; (3) privacy

interest in the contents of the car

Mobility Rationale for Exception: Chambers v Maroney (1970): police had probable cause to stop Cs car because it fit the description of

one involved in a nearby robbery. When officers approached the car and saw that the occupants fit robbers’ descriptions, they arrested them. Did not search the car at that time but drove it & its occupants to the station. While the arrestees were in jail, police searched without a warrant & found weapons and evidence of the crime hidden under the dashboard. UPHELD: police with probable cause to search a car at the scene where it was stopped may do later at the station house without first obtaining a warrant.

o Justified warrantless seizure AND warrantless search on grounds that car retains its mobility at the police station. NO constitutional difference between officers’ options: (1) search car immediately; or (2) deny its use to others until a warrant can be obtained. [But here, no warrant was ever obtained].

Coolidge v New Hampshire (1971): police investigated Cs possible involvement in a murder. He cooperated fully in the investigation; when probable cause to arrest & search his car was found, they arrested him at home & towed his car to the station. They searched it 3 times without a warrant: 2days after it was towed, 1yr later, then 14mo later. Plurality HELD: Warrantless searches were unconstitutional. (Distinct from Chambers?)

o Police knew for a while the probable role of the car in the crime; C had ample opportunity already to destroy incriminating evidence; vehicle wasn’t stopped on the highway but parked at his home

Lesser-Expectation of Privacy Rationale: BECAUSE cars are subject to heavy regulation, EVEN WHEN an automobile is not immediately mobile, the lesser expectation resulting from its use justifies application of the vehicular exception.

California v Carney (1985): C suspected of exchanging sex for drugs out of his mobile home & ultimately arrested. Searched the mobile home, parked in a public place, without a warrant. UPHELD.

o When a car is readily capable of use on the highways & is found stationary in a place not regularly used for residential purposes, the two justifications for the automobile exception come into play (i.e. mobility & lesser-expectation).

o Dissent: mobile home was parked in a location removed from public highway & could arguably compare to humble abode

Cardwell: Lesser expectation of privacy in a car because its function is transportation & it seldom serves as a residence or repository of personal effects. Car has little capacity for escaping public scrutiny, as it travels public thoroughfares where its occupants & contents are in plain view.

CONTAINERS IN CARS: Container = ANY OBJECT CAPABLE OF HOLDING ANOTHER OBJECT. Same rules apply to suitcase &

paper bag. Outside of a car , police need a warrant to search containers (or exigency, consent, or SILA) Inside a car, ALL containers may be searched without a warrant during an otherwise lawful

“automobile exception” search. 2 circumstances:


o 1. Police come across a container as part of a valid warrantless car search MAY open it without a warrant as long as the container is large enough to hold whatever evidence they are looking for

o 2. Police have probable cause to believe that a particular container holding criminal evidence will be found in a car MAY conduct warrantless search of the car for the container & open the container

US v Chadwick (1977): Amtrak officials saw 2 guys lifting a heavy footlocker onto a train; footlocker was leaking talcum powder, so they notified feds. Two days later the agents put the suspects under surveillance at destination, with a drug dog. Dog alerted to the presence of drugs, so police followed them to the car and before they closed the trunk, arrested the 3 people, seized the footlocker, & searched it 90min later without a warrant.

o Held: Seizure was justified, but search was unconstitutional—no exigency existed at the time of search.o Court distinguished from car based on heightened expectation of privacy in container—intended to be

a repository of personal effects US v Ross (1982): police had probable cause to search an entire car for contraband. In it, they found a

closed paper bag & opened it without a warrant. UPHELD. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle & its contents that may conceal the object of the search.

CALIFORNIA v ACEVEDO (1991): Eliminated the distinction between Ross & Chadwick (that it’s permissible to search containers ‘coincidentally’ in cars). IN ALL CASES, police may search containers in cars without a warrant if their search is supported by probable cause.

Here, police saw A leave a residence holding a closed bag that they had probable cause to believe contained drugs. A placed the bag in the car & drove away; police stopped in on the road, opened the trunk, & inspected the bag, which contained drugs.

Like Chambers, probable cause was focused on the container, not the car. By placing it within the car, the automobile exception justified the search. BUT – probable cause did not extend beyond the closed paper bag (i.e. they could look in the trunk, but ONLY to find the paper bag).

4. INVENTORY SEARCHES POLICE MAY CONDUCT AN INVENTORY SEARCH OF AN AUTOMOBILE WITHOUT A WARRANT AND

WITHOUT PROBABLE CAUSE IF CONDUCTED IN ACCORDANCE WITH ROUTINE OPERATING PROCEDURES IN THAT COMMUNITY FOR CONDUCTING AN AUTOMOBILE INVENTORY (South Dakota v Opperman)

Ex: Police tow car for parking illegally. Procedure is to search cars in impoundment. Permissible, because viewed as part of caretaking function of police. IF incriminating evidence is found during the search, it may be properly admitted against the owner.

SD v Opperman: Because an inventory is not part of a criminal investigation, but is just a routine process, then the warrant requirement of the 4th Amdt. simply has no applicability 4 th Amdt. only applies to criminal investigations. Because the probable cause requirement in the 4th Amdt. is linked textually with the warrant requirement, then there is also no probable cause requirement. ONCE the warrant clause is eliminated, the sole inquiry is whether the inventory search was reasonable or unreasonable.

o Three legitimate reasons why warrantless inventory searches are reasonable – balancing of interests: 1. To protect the car owner against theft of property 2. To protect police against false claims of theft while car is impounded 3. Police need to have a right to look in for any dangerous instrumentalities in the car that

might endanger the police or others while in possession of the car.o WEIGHED AGAINST THESE is the car owner’s interest in a reduced expectation of privacy in his vehicle


o IF the inventory requires police to open containers found in a car during an inventory search, then they may do so BUT, there must be a written inventory procedure that allows police to do this (cannot just do it because they feel like it).

THIS EXCEPTION ALSO APPLIES TO PEOPLE WHEN THEY GO TO JAIL. Persons’ contents may be inventoried when they go into the jail & placed in a police locker. This may be done without a warrant and without probable cause for the same reasons.

o STRIP SEARCH CASE: Man arrested while a passenger in his car with wife. Had an outstanding arrest warrant for not paying a civil fine. In reality, he paid the fine & the bench warrant had been eliminated. While in custody he was subjected to 2 strip searches. 5-4 HELD: constitutional for authorities, as a matter of routine, to subject ALL people coming into the jail to this sort of search.

Court is not to question the expertise of the police DISSENT: questions whether the routine is absolutely necessary. Only a handful of such

searches result in actual finding of contraband. No proof that they could not be found based on reasonable suspicion search.

How do you draw the line between major/minor offenses, & incorporate the distinction into a process that HAS to be standardized?

5. PLAIN VIEW (AND TOUCH) DOCTRINE JUSTIFICATION FOR WARRANTLESS SEIZURE —NOT AN EXCEPTION TO SEARCH WARRANT

REQUIREMENT PLAIN VIEW = subject to warrantless seizure by police IF – o 1. Observed from a lawful vantage point; o 2. Physical right of access to it; AND

i.e. police cannot enter a home without a warrant to seize weed viewed lawfully from streeto 3. Its nature as an object subject to seizure (fruit, contraband, instrumentality, evidence of crime) is

immediately apparent when observed [i.e. probable cause to seize it] THIS is why seizure of cars in Coolidge was unjustified.

Horton v California: H was convicted of armed robbery. Police had obtained a search warrant that was limited to a search for the stolen goods—specifically excluded the weapons. While searching the home, police couldn’t find the goods but found the weapons in plain view & seized them. Officer testified that while searching for the goods, he was also looking for other incriminating evidence i.e. seized “plain view” evidence not discovered inadvertently.

Held: NO inadvertence requirement for application of plain view doctrine. Officer’s subjective state of mind is improper basis for invalidating a seizure.

o Particularity requirement + requirement that warrantless search be circumscribed by the exigencies that justify it are adequate safeguards

o Here, scope of search wasn’t enlarged by omission of any reference to weapons in warrant. If police had first found the stolen goods, then no search for weapons could have taken place.

Arizona v Hicks (1987): police entered H’s apt. without a warrant because a bullet had been fired through the floor into the apt. below. They found & seized 3 weapons and in the course of the search found a stocking-cap mask. Officer noticed expensive stereo equip & suspected it was stolen because it was out of place in the apt. He recorded the serial numbers—required him to move some of the equip. Radioed the #s in and found out the equip was stolen & seized it.

Mere recording of the #s didn’t constitute a seizure, BUT it did constitute a search – moving the equip was completely unrelated to the objective of the authorized intrusion.

Issue: IF plain view doctrine would validate a seizure of the equip, then the search was valid.


Held: Probable cause is required to invoke the plain view doctrine. Doctrine is justified by a desire to avoid risk of obtaining a warrant where object is viewed in the course of a lawful search does NOT suggest that a lesser standard of cause is permitted than is required for warrant.

o SAME standard must apply to searches & seizures alike.

PLAIN TOUCH – Minnesota v Dickerson (1993): Officer saw D acting suspiciously near a crack house. Frisked D for weapons as part of a Terry stop. During the lawful frisk, officer felt a “small lump” that he knew wasn’t a weapon but otherwise could not identify. Manipulated it with his fingers & thought it was crack. Pulled it out to see that it was crack.

HELD: Unlawful seizure. Examining the lump after completion of the weapons search fell outside the scope of the original lawful intrusion.

IF officer lawfully pats down a suspect’s clothing for weapons & feels an object whose contour/mass makes its identity as contraband immediately apparent, there is NO invasion of privacy beyond that already authorized by the search for weapons.

If object is contraband, warrantless seizure is justified by the same considerations that justify exception in plain view context

PLAIN “SMELL”: Individual has no reasonable expectation of privacy regarding scents; cannot legitimately expect that an officer will not use his sense of smell to detect incriminating evidence from a lawful position.

6. CONSENT GENERALLY, FOR CONSENT TO BE VALID, IT MUST BE:o 1. Voluntary voluntariness in in consent-to-search context is not as strict as waiver in trial contexto 2. Obtained from someone with real or apparent authority to give consent o 3. Scope of the search conducted must not exceed the consent granted If police discover evidence during a valid consent search, it may be seized without a warrant pursuant

to plain view doctrine.

Shneckloth v Bustamonte (1973): Police stopped a car with 6 people in it; driver didn’t have a license so they were asked to get out of the car. One claimed to be the brother of the car’s owner, so police asked him permission to search the car; he said yes & helped in the search. Police found some stolen checks that were admitted to convict B. Issue: What must prosecution prove to demonstrate that a consent was “voluntarily” given?

Held: Whether a search was in fact voluntary depends on the totality of the circumstances – defendant’s knowledge of the right to refuse consent is a factor, but NOT determinative. Must consider all factors relevant to whether the person knew they could refuse the search (e.g. age)

o Two competing policies – Legitimate need for consensual searches, where police have some evidence of illicit activity but

lack probable cause to arrest/search Requirement of assuring the absence of duress/coercion

o Waiver approach to consent searches is impractical & inconsistent with precedent that approves of 3rd party consents

Bumper v NC: Police knocked on lady’s door & said “I have a search warrant to search your house,” so she consented. “Warrant” was lost & cops tried to justify the search on consent grounds. Court rejected: Assertion of authority to conduct a search amounts to coercion—in effect announcing that occupant has no right to refuse consent.


COMMON AUTHORITY TO CONSENT: GENERALLY 4th Amdt. recognizes a valid warrantless entry & search when police obtain the voluntary consent of an occupant who shares authority over the area in common with a co-occupant who later objects to the use of the evidence obtained

Matlock: arrested & taken from the scene. Roommate then consented to a search. Upheld. Rule is based on reasonableness in light of social expectations: Shared tenancy understood to include

“assumption of risk” on which police are entitled to rely—where a guest may be admitted in the absence of a co-tenant who might object

Common authority has limits – e.g. landlord, hotel mgr., & kids. o Also, conceivable that in a 2br apt. one may not be able to consent to search of his roommate’s room –

and if the room were locked, the argument is much strongerGeorgia v Randolph (2006): R’s estranged wife called police to their home after a domestic dispute; told the cops he abused cocaine. He was present, denied the allegations, & refused their request for permission to search. Cops then requested permission from her, to which she consented & led them upstairs to his room. They found a straw with residue & charged him with possession.

Held: Physically present co-occupant’s express refusal to permit entry renders the warrantless search unreasonable & invalid as to him. Unless occupants fall within some recognized hierarchy, NO common understanding that one co-tenant generally has a right of authority to prevail over express wishes of another

Holding is NARROW: line is drawn between this case and instances like Matlock or Rodriguez, where defendants were in squad car or asleep & thus weren’t technically present to object.

Holding does NOT affect the right of police to enter in order to protect a victim (exigency)

APPARENT AUTHORITY TO CONSENT:Illinois v Rodriguez (1990): Police responded to a call from a woman who claimed R had beaten her. She led them to his apt., which she claimed was theirs (she had the key & said she had things there). They entered to find drugs & paraphernalia, seized the evidence, & arrested R. Later found that the woman was not a resident; not on the lease, didn’t pay rent, moved her things out, & had taken the key without his knowledge.

Burden on state to show common authority, which was not sustained here. Issue: Whether an officer’s reasonable belief in a 3 rd party’s authority to give consent is enough to validate the entry.

Held: Determination of consent to enter must be judged by an objective standard—whether the facts available to the officer at the moment would warrant a man of reasonable caution in the belief that the consenting party had authority over the premises. THRESHOLD OF 4TH AMDT. IS REASONABLENESS, NOT CONSENT. Satisfied if the factual determinations made by govt. are reasonable—need NOT be correct.

REASONABLENESS CLAUSE

Two basic challenges presented by the 4th Amdt.: (1) Reasonableness Cl. general proscription against searches & seizures must be reconciled with the Warrant Cl. mandate that no warrants shall issue but upon probable cause; (2) concept of reasonableness must be defined to reflect amendment’s underlying values & purposes

Initially, 4th Amdt. analysis focused almost exclusively on the Warrant Clause – approach was predictable & gave strong protection to defendants. Then –

o Camara v Municipal Ct. (1967): Redefined probable cause in the context of govt. housing inspections Rather than probable cause defining a reasonable search, reasonableness—as determined by

balancing govt. & individual interests—defined probable cause Expanded the range of acceptable govt. behavior


Terry commenced the Court’s move away from the idea that warrantless searches are per se unreasonable

TERRY DOCTRINE DIMINUTION IN THE ROLE OF THE WARRANT CLAUSE: TEST for police conduct is whether the search

was reasonable, NOT whether it was reasonable to get a warrant. Recognition that searches & seizures can vary in their intrusiveness Whether facts available to officer at the moment of search/seizure would warrant a man of reasonable

caution in the belief that the action taken was appropriate. DUAL INQUIRY: (1) whether officer’s action was justified at its inception; (2) whether it was

reasonably related in scope to the circumstances which justified the interference in the first place

TERRY v OHIO (1968): Plain-clothes officer was patrolling neighborhood for shoplifters & noticed 2 men on the corner. He watched them take turns casing a storefront numerous times before meeting with a 3rd man. Officer was suspicious and approached them, identifying himself as police and asking who they were. One mumbled a response so cop grabbed T, spun him around, and patted him down to check for weapons. Found a gun on T & then patted everyone else down & arrested T and the other armed man.

T was seized at least when cop grabbed him, although less intrusively than if he had been arrested. Also, the pat down constituted a search, but something less than a full one. Balance of interests –

o GOVT. INTEREST: neutralization of danger to officer in the context of an investigation + effective crime prevention & detection

o INDIVIDUAL INTEREST: locomotion & freedom from police intrusion o Exclusionary rule doesn’t really deter this sort of activity. Police may not ultimately care whether they get

the conviction, but are primarily concerned with getting the guns or drugs off the street. Held: 4th Amdt. permits a reasonable search for weapons for the protection of police when they

have reason to believe they are dealing with an armed & dangerous individual, regardless of whether there is probable cause to arrest. Warrant Clause does NOT apply to this type of police practice.

o When an officer has REASONABLE SUSPICION that the individual whose suspicious behavior he is investigating at close range is armed & presently dangerous to the officer or to others, officer has the constitutional authority to ascertain whether the person is in fact armed and, if necessary, disarm the suspect.

MUST consider the specific reasonable inferences that the officer is entitled to draw from the facts in light of his experiences. NO weight given to unparticularized suspicion/hunches.

MUST be circumscribed by exigencies justifying its initiation: purpose limited to determining whether the suspect is armed NOT justified by any need to prevent destruction of evidence.

o Here, suspicion was reasonable, and officer appropriately confined his search—only patted outer clothing & didn’t go into clothes until he felt the guns, and then he only reached in to remove the guns

Notes – Post-Terry: Doctrine applies when police seek to investigate a completed felony . Stops allowed if police

have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony.

Minnesota v Dickerson: Object MUST be readily discernible as contraband . When you start feeling around, you’ve exceeded the bounds of Terry. [Plain Touch Doctrine]

SEIZURES VS. NON-SEIZURE ENCOUNTERS


IF ENCOUNTER IS NOT SUFFICIENTLY INTRUSIVE TO AMOUNT TO A SEIZURE, 4TH AMDT. IS NOT IMPLICATED AND NOT EVEN REASONABLE SUSPICION IS REQUIRED

SEIZURE of a person occurs when his freedom of movement is restrained by means of physical force or show of authority.

IF, in the circumstances, a reasonable person would have believed that he was not free to leave. o Ex: threatening presence of several officers, display of weapon by officer, physical touching of the

person, use of language/tone indicating that compliance might be compelledo Suspect need not attempt to leave US v Mendenhall (1980): DEA watched a woman get off the plane, claimed she fit the drug courier

profile. Asked for her ticket & license, which bore different names. They told her they were DEA & asked her to come with them to the office for further questions. She gave them her purse to look through, and ultimately she consented (twice) to a full body search, which turned up heroin in her underwear.

o Court found that NO seizure occurred: Agents weren’t in uniform & weren’t displaying weapons; approached her & identified themselves; requested ticket & ID.

Irrelevant that she wasn’t expressly told that she was free to decline to cooperate. Consent to go with the agents was voluntary: Govt. carried burden by showing that she was not

told she was not told she had to go to the office, only asked—she had been questioned briefly and her ticket & ID were returned to her beforehand

o HELD: Because search wasn’t preceded by an impermissible seizure, her consent to the subsequent search was NOT tainted by unlawful detention

(Note: court didn’t consider whether consent was otherwise invalid). US v Drayton (2002): 2 officers boarded a bus that was stopped. One remained at the front of the bus

(not blocking the exit) while the other moved from the back to the front, asking each passenger to identify their bags. He got to D and Brown, & they gave consent for him to search their (shared) bag, which revealed no contraband. They were wearing baggy clothes, so cop first asked B for permission to search his person, to which he consented. Cop felt hard objects he identified as similar to drug packages; arrested B. The same thing then happened to D. They were convicted of cocaine possession. HELD: officers’ conduct was permissible.

o 1. Weren’t seized when police boarded the bus & began questioning passengers Reasonable passenger would feel free to decline to officers’ requests or otherwise terminate the encounter.

No force, brandishing of weapons, blocking of exits, threat, command, or authoritative tone Fact that they were uniformed & had weapons in their holsters doesn’t matter—police are

commonly understood by the public to be armed D was NOT seized after B’s arrest: Court rejected the argument that no reasonable person

would feel free to terminate the encounter after B was arrested.o 2. Not seized Consent to suspicionless search was voluntary Search not unreasonable California v Hodari D (1991): Police were patrolling a high crime area; saw a group of kids around a

red car who, when they noticed the officers’ car, panicked & fled. Cops were suspicious & chased them. One cop saw H toss a rock, tackled him, handcuffed him, & found $130 and a pager. Rock was crack.

o IF H had been seized at the time H tossed the rock (in flight), then drugs were the fruit of an improper seizure & should be excluded. IF NOT, drugs were abandoned by H & lawfully recovered by police.

o H was not touched by the cop, but argued that a seizure occurs when the officer, by means of a show of authority, has restrained liberty in some way.

o HELD: SEIZURE DOES NOT OCCUR WHEN SUBJECT DOES NOT YIELD TO A SHOW OF AUTHORITY. Requires either PHYSICAL FORCE or , where absent, SUBMISSION to the assertion of authority


Assuming pursuit was a show of authority, H was not seized until the moment he was tackled Point: Cannot classify the pursuit alone as a seizure, in the event he would have gotten away

TERRY SEIZURES VS. DE FACTO ARRESTSIF SEIZURE IN QUESTION IS TANTAMOUNT TO AN ARREST, PROBABLE CAUSE IS REQUIRED – FACTORS:

1. Length of detention (US v Sharpe) 2. Forcible movement of the suspect – e.g. police move a suspect away from where they were found

to another site for further investigation, especially if the criminal investigation could have occurred where the detention arose (Dunaway v NY, Florida v Royer, Pennsylvania v Mimms, Maryland v Wilson)

3. Existence of less intrusive means (Florida v Royer). This factor has essentially merged with the length of detention inquiry.

FORCIBLE MOVEMENT OF THE SUSPECT:Dunaway v New York (1979): Officer investigating a murder was tipped off as to defendant’s involvement but not to the extent necessary to supply probable cause. Cop ordered other detectives to pick him up & bring him in. He was taken into custody, and although told he was not arrested, he would have been restrained if he attempted to leave. He was Mirandized & interrogated; waived counsel & incriminated himself. Conceded that he was seized when involuntarily taken in, and that police lacked probable cause to arrest until his incriminating statements in interrogation.

Govt. argued that because the seizure did not amt. to an arrest, it was permissible because police had reasonable suspicion that he had knowledge of the unsolved murder.

HELD: For all but the narrow set of intrusions defined in Terry , seizures are reasonable ONLY if supported by probable cause—balancing inappropriate.

o Terry defined a special category of 4th Amdt. seizures SO substantially less intrusive than arrests that the general rule of probable cause could be replaced by a balancing test.

o HERE, D’s detention was practically indistinguishable from a traditional arrest. Application of probable cause requirement doesn’t turn on whether the intrusion is deemed an arrest under state law.

Florida v Royer (1983): airport traveller aroused suspicion in fitting drug courier profile. Police identified themselves & asked him to go with them to a small room 40ft away, without returning his ticket or ID . Got his luggage & brought it to the room; R consented to a search & they found marijuana. EVIDENCE SUPPRESSED. At the time he gave them the key to his luggage, the detention he was subjected to was a more serious intrusion than is allowed on mere suspicion.

Suspect reasonably believed he was being detained: they had his ticket, ID, & luggage; questioned him in a police interrogation room; and never told him he was free to board the plane. Conduct more intrusive than necessary for investigative detention otherwise authorized in Terry.

COMPARE: US v Mendenhall – distinction is that the agents there returned M’s ticket & ID to her after questioning and BEFORE they asked her to go back to the office with them.

Removal from an Automobile After a Lawful Stop: Pennsylvania v Mimms: When a driver is legally pulled over, officer may order the driver out of the car

without further justification – NO reasonable suspicion is required.o Govt. interest in police safety is legitimate, & the incremental intrusion to the driver is de minimis—not

exposing much more than is already exposed, because a lawful stop is a brief detention either way. Maryland v Wilson: Officer making a valid traffic stop MAY, as a matter of course, order passengers out

of the car pending completion of the detention.o Although passenger’s liberty interest is slightly stronger than the driver’s, the passengers are already

stopped by virtue of the traffic stop.


LENGTH OF DETENTION: Seizure on less than probable cause is justified in part on the brevity of the detention—but there’s no

bright line ISSUE: Whether police acted diligently to pursue investigation or whether they unnecessarily prolonged

suspect’s detention. Considerations –o 1. Law enforcement purposes to be served by the stopo 2. The time reasonably needed to effectuate those purposes while detaining the defendanto 3. Whether police acted unreasonably in failing to recognize or pursue a less intrusive alternative US v Sharpe: Agent patrolling highway for drug trafficking saw a suspicious camper travelling in

tandem with a Pontiac. He radioed for assistance & attempted to pull them over. The Pontiac pulled over but the camper did not stop immediately. Agent 2 had to pursue it while A1 stayed with the Pontiac until assistance came. Court upheld 20min detention of suspects: (1) Pursued investigation in a diligent & reasonable manner; (2) Method of investigation likely to confirm or dispel suspicions quickly; (3) Detention lasted no longer than necessary to effectuate the purpose of the stop

o Significant was the fact that the length of detention was aggravated by evasive actions taken by the suspects in what otherwise would’ve been a much briefer detention

o STILL: Even where these conditions are met, a detention that continues indefinitely at some point can no longer be justified a Terry stop

TEMPORARY SEIZURES OF PROPERTY – US v Place (1983): agents had advance notice that P would be getting of a plane with luggage full of drugs. When P arrived, they seized his luggage & 90min later subjected it to a non-search sniff by drug dog. Dog indicated presence of drugs, so they got a warrant to search the suitcase.

Terry principles apply to seizures of property – here, though, the 90min detention was excessive & impermissible

o Govt. interest in seizing the property was substantial (detecting drug trafficking)o Intrusion on possessory interest is variable DISTINCTION between seizure

(1) after a person has relinquished control to a 3rd party; and (2) from the immediate custody & control of the owner, as here effectively seizes the person

REASONABLE SUSPICION

REASONABLE SUSPICION = something MORE than an inchoate & unparticularized suspicion (hunch), & something LESS than a fair probability that contraband or evidence of a crime will be found (probable cause)

Can be established with info that is different in quantity or content than is required to est. probable cause

Can arise from info that is less reliable than is required for probable cause SO, reasonable suspicion can be sustained upon a lesser finding than what’s enough to satisfy probable

cause test announced in Illinois v Gates.

Sufficiency of Hearsay Information:Alabama v White (1990): Police received an anon tip that a woman would be leaving a certain bldg. at a particular time, carrying an attaché case containing cocaine, driving a certain car, and going to a certain motel. They went to the bldg. and saw W get into the car, followed her on the most direct route to that motel, stopped her just before the destination, & asked to search for cocaine. They found the attaché case and she gave them the combination; it contained weed and she had cocaine in her purse. HELD: Tip carried enough indicia of reliability to justify a Terry-level seizure.

FOCUS was on the fact that the informant predicted future conduct —enough of which was corroborated to render the tip sufficiently reliable/trustworthy. Close case though.


COMPARE – Florida v JL : anon tip reporting that a young black male would be at a particular bus stop wearing a plaid shirt and carrying a gun. Police went to the stop and saw 3 young black males hanging out. No firearms were visible, and JL, wearing a plaid shirt, made NO threatening or unusual movements. Apart from the tip, there was NO reason to suspect any of the 3 of illegal conduct. Still, officers frisked them all and found a gun on JL.

o Court unanimously held that police lacked reasonable suspicion that JL was armed: Accurate description of a subject’s readily observable location & appearance is only reliable for purposes of identification. Tip lacked predictive information that could be corroborated to provide suspicion.

Unprovoked Flight: = Evasive behavior suggestive of wrongdoing When coupled with other factors , can constitute reasonable suspicion justifying a seizure

Illinois v Wardlow (2000): Cops were patrolling a high crime area to investigate drug trafficking. Noticed W standing around carrying an opaque bag; when he saw the officers, he fled. They chased & cornered him; gave him a protective pat-down search for weapons; felt a hard object in the shape of a gun; opened the bag to find a gun.

HELD: Officer was justified in suspecting that W was involved in criminal activity & thus in investigating further

o Police not required to ignore relevant characteristics of a location in determining whether circumstances are sufficiently suspicious to warrant further investigation – i.e. high-crime area

o Consistent with individual’s right to refuse to answer police questioning is the idea that flight may permit police to stop the fugitive & investigate.

PROTECTIVE SWEEPS = Quick & limited search of premises made incident to an arrest & for the safety of police &

others. NARROWLY confined to a cursory visual inspection of those places in which a person may be

hiding

Maryland v Buie (1990): police had a warrant to arrest B in connection with a robbery. Phoned his house & spoke to him to make sure he was there. 6 cops went in and spread out. One shouted down in the basement for anyone to come up, and B emerged. After arresting, searching, & cuffing him, the cop went down & found a red tracksuit like the kind worn in the robbery. Issue: What level of justification did 4 th Amdt. require before police could legally enter the basement to see if someone else was there?

Like in Terry, police in these cases have an interest in taking steps to assure that the hose in which a suspect is being (or just has been) arrested is not harboring other dangerous persons who could attack unexpectedly

o Risk of danger may be greater in the context of a home than on the street investigatory encountero Police interest in safety outweighs suspect’s interest in avoiding intrusion HELD: REASONABLE SUSPICION NECESSARY TO JUSTIFY FULL PROTECTIVE SWEEP AFTER

SUSPECT HAS BEEN ARRESTED.o Before finding B, police entitled to look anywhere in the home where he might be found.o AS INCIDENT TO ARREST, MAY as a precaution and without probable cause OR reasonable suspicion,

look in closets/immediately adjoining spaces.o BEYOND THAT, MUST be articulable facts & rational inferences to warrant reasonable suspicion that

the area to be swept harbors an individual posing danger to those on the arrest scene.


IF JUSTIFIED, limited to cursory inspection where persons may be found. May last no longer than necessary to dispel the reasonable suspicion of danger & no longer than it takes to complete the arrest & depart.

SPECIAL NEEDS DISTINCTION between searches & seizures conducted in furtherance of criminal investigation & those

in furtherance of community caretaking function. (SD v Opperman – Inventory Search)

SPECIAL NEEDS EXCEPTION TO WARRANT REQUIREMENT: Applies when a perceived need for search or seizure, beyond the normal need for criminal law enforcement, makes warrant/probable cause requirements impracticable or irrelevant Court evaluates activity under reasonableness balancing standard.

Public Schools: New Jersey v TLO: kids caught smoking on school grounds. TLO denied it, so Vice P looked in her purse.

Found cigarettes & rolling papers and TLO was implicated in marijuana sales. HELD: Probable cause requirement inapplicable to public school officials. 2 conditions must be met to subject students to warrantless search:

o 1. Reasonable grounds (NOT prob. cause) for suspecting the search will turn up evidence that the student has or is violating law or school rules

o 2. Search not intrusive in light of the age & sex of student & the nature of the infraction Stafford School Dist. v Redding: 13yr old subjected to a search of her bra & panties by school officials

acting on a reasonable suspicion that she brought prescription-strength Ibuprofen to school. UNREASONABLE under TLO:

o Content of suspicion did not match degree of intrusion. Principal knew beforehand that the drugs were equivalent to Advil limited threat. NO reason to suspect that large quantities were being passed around. NO indication of danger to the students from the power of the drugs + NO reason to suspect that she had them in her panties.

Border Searches: International borders/equivalents (e.g. airport with arriving intl. flight): Person may be stopped

(seized) and her belongings searched without individualized suspicion of wrongdoing. – Right of sovereign to protect itself from entry of persons and things dangerous to the nation.

Highways in the vicinity of the Mexican border –o Roving border patrols: Where agents stop a car without notice on a little-traveled road, reasonable

suspicion of criminal activity is required to briefly detain occupants.o Fixed interior checkpoints: Occupants may be stopped without individualized suspicion.

Sobriety Checkpoints:Michigan State Police v Sitz: Program whereby checkpoints would be set up at selected sites. All vehicles passing through would be stopped & drivers examined for signs of intoxication. Where found, driver would be directed out of traffic & officer would check license/reg. & possibly conduct field test. If intoxicated, arrest would be made. All other drivers permitted to resume journey immediately. Avg. stop lasted about 25sec. HELD: NOT A 4TH AMDT. VIOLATION.

Balancing test: (1) State’s interest in preventing accidents caused by drunk drivers; (2) Effectiveness of sobriety checkpoints in achieving that goal; (3) Level of intrusion on individual’s privacy caused by the checks.


With regard to the initial stop & preliminary questioning of each motorist, balance weighs in favor of program. (Noted that detention of particular drivers for field testing may require individualized suspicion).

Compare – City of Indianapolis v Edmond: Checkpoint program with primary purpose of discovery & interdiction of illegal narcotics: at each site, police stopped a predetermined # of cars; officer approached, asked for L/R, looks for signs of impairment & conducts open-view exam of car from outside; drug dog walks around each stopped car. Stops lasted 2-3min & police couldn’t actually search absent consent or individualized suspicion. HELD: 4TH AMDT. VIOLATION.

Primary purpose of program indistinguishable from general interest in crime control. While 4th Amdt. reasonableness is primarily objective inquiry, special needs & admin search cases demonstrate that purpose is often relevant when suspicionless intrusions pursuant to a general scheme are at issue.

PRIMARY PURPOSE CONTROLS. Otherwise any checkpoint could be permitted as long as there was a secondary purpose of license or sobriety check

Illinois v Lidster: Upheld checkpoint designed to elicit info from drivers about fatal hit & run that occurred in the area the week before. Delay lasted a few min. & drivers were only questioned about 15sec.

PRIMARY PURPOSE was not to detect crime by occupants , but to ask them, as members of the public, to help in providing info about a crime likely committed by others.

Info-seeking stops less intrusive: brief & less chance of self-incrimination.

Random Drug Testing: Considerations : (1) Nature & immediacy of govt.’s concerns re drug use; (2) Privacy interests of subjects Chandler v Miller: Invalidated Ga. requirement that candidates for state office pass a drug test. No

special need for the testing: no suspicion of drug use by state officials, & the test date was announced ahead of time.

Ferguson v Charleston: Invalidated program carried out at MUSC to identify & test pregnant moms suspected of drug use. No special need: Primary & immediate objective was to generate evidence for law enforcement purposes. Although ultimate goal may have been to get treatment for the women, the means cannot be ignored – law enforcement was involved at every step of the program.

STANDING

DEFENDANT MOVING TO SUPPRESS EVIDENCE MUST SHOW THAT HIS 4TH AMDT RIGHTS WERE VIOLATED BY POLICE CONDUCT Person claiming the protection of the Amdt. must have had a legitimate expectation of privacy in the invaded place

Rakas v Illinois (1978): Police stopped car on suspicion it was getaway car from a robbery. Occupants ordered out & police found rifle shells in locked glove compartment & sawed-off shotgun under passenger seat. 2 of the passengers were then arrested & moved to suppress the evidence seized from the car on grounds that the search violated 4th Amdt. Issue: Whether R had standing to object to the lawfulness of the car search when neither the car, shells, nor rifle belonged to him. 4 th Amdt. rights are personal – Did the disputed search/seizure infringe an interest that the Amdt. was meant to protect?

HELD: R lacked standing because he could not show that, as a passenger, he had a legitimate expectation of privacy in the glove compartment & passenger area of the car like the trunk, these are areas in which a passenger qua passenger would not normally have an expectation of privacy.

Dissent: Improper reversion to pre-Katz era where property rights determine 4th Amdt. rights. Now no person in an automobile without a possessory interest in the car will be able to claim a 4th Amdt. violation. What is sufficient—wife, child, taxi? Result will encourage bad-faith policing.


Minnesota v Olson (1998): Without a warrant or consent, police entered a home in which they believed O was staying as an overnight guest. They searched the residence until they found him in a closet. HELD: O had standing to contest.

Society recognizes that an overnight guest has a legitimate expectation of privacy in his host’s home

Court considered –o Social custom that is seen as valuable to society. Overnight guest seeks shelter in another’s home

because it provides him with privacy, & knowing that he & his possessions won’t be disturbed by anyone but his host & those his host allows inside

o Vulnerability that comes with sleeping indicates that expecting privacy during overnight stay is at least as reasonable as expecting it in a telephone booth

That the host controlled the premises is not inconsistent with the expectation of privacy—i.e. unlikely that the host would admit anyone seeking the guest over guest’s objection

Minnesota v Carter (1998): Acting on a tip, police observed C, J, & T in T’s apt. bagging cocaine (through a window blind). Pursuant to a warrant they searched the house. Was later found that C & J: (1) lived in Chicago & had come to the apt. solely to bag the cocaine; (2) had never been there before and were only there 2.5hrs; and (3) in return for use of the apt., gave T some cocaine. HELD: IF an unreasonable search occurred, it did NOT violate 4th Amdt. rights of C & J.

One who is merely present on the premises with consent of householder has no legit expectation of privacy in the residence. In distinguishing Olson /overnight guest scenario, Court looked at:

o Purely commercial nature of the transaction;o Relatively short period of time on the premises; &o Lack of any previous relationship between C / J & the host.

EXCLUSIONARY RULE

DOES THE RULE DETER CONSTITUTIONAL VIOLATIONS? o Critics say: Most 4th Amdt. violations are inadvertent – type of errors which cannot be meaningfully

deterred. Knowing 4th Amdt. violations can be deterred, but the exclusionary rule is too indirect a form of punishment to deter adequately. To be effective, punishment would have to occur immediately after every incident of misconduct. Plea bargains & drawn out litigation inhibit this result.

o Defenders say: Systemic (general) deterrence is the goal of the rule, NOT specific deterrence. Evidence shows that this is achieved.

COSTS OF THE RULE: o 1. Protects the wrong people

Critics say: rule deflects the truth-finding process by excluding reliable evidence, and as a result, the guilty often go free.

Defenders say: this argument is misdirected – it’s the 4th Amdt. and NOT the exclusionary rule that makes it harder to convict. Also, studies suggest that the cost of guilty going free is often overstated. Inaccurate to say innocent people don’t benefit from the rule.

o 2. Promotes cynicism o 3. Results in disproportionate punishment

Critics say: Mapp goes too far – applies equally to inadvertent mistakes & bad faith conduct. + Rule doesn’t distinguish based on the gravity of the offense.

Defenders say: This argument mischaracterizes the purpose of the rule – it is intended to prevent future 4th Amdt. violations, NOT to compensate victims of past violations.


Alternatives to the rule: tort actions; fed civil rights suits; criminal prosecutions of officers who maliciously violate the 4th Amdt.; injunctive relief; police review boards with authority to suspend or fire officers for constitutional wrongdoing. Do these alternatives sufficiently deter violations?

US v Calandra (1974): Held that the exclusionary rule does NOT apply in grand jury proceedings Exclusionary rule is a judicially created remedy meant to safeguard 4th Amdt. rights generally

through its deterrent effect, NOT a personal constitutional right for the aggrieved o Application of the rule is restricted to areas where its purpose is best served. BALANCING: Potential injury to the role & functions of grand jury vs. potential benefits of rule in this

contexto Grand jury doesn’t finally adjudicate guilt or innocence, so permitting witnesses to invoke rule would

unduly delay & hinder the processo Unreasonable to assume that extending the rule to grand jury proceedings would effectively deter

police misconduct.

IMPEACHMENT PURPOSES: Prosecutor MAY impeach defendant’s testimony by introducing evidence previously excluded on 4th Amdt. grounds.

James v Illinois: J didn’t testify & govt. sought to impeach testimony of J’s sole witness by introducing unconstitutionally seized evidence. HELD: Impeachment exception does NOT apply to defendant’s witnesses. Expansion of impeachment exception to all witnesses in all criminal trials would unduly undermine the deterrent goal of the exclusionary rule. Defendants usually choose not to testify; threat of impeachment might deter them from calling witnesses with legit exculpatory evidence.

KNOCK AND ANNOUNCE VIOLATIONS: Exclusionary rule does NOT require suppression of all evidence found in the search. (Hudson v Michigan – 2006)

Rule protects personal privacy. It doesn’t protect one against law enforcement discovering something because they already have the warrant.

NO right to not have evidence seen – only a right to not have the door knocked down immediately.

GOOD FAITH SEARCH WITH WARRANT Exclusionary rule does NOT apply to bar evidence obtained pursuant to a search warrant later

declared to be invalid – as long as a reasonably well-trained officer would have believed it was valid.

GOOD FAITH = objectively reasonable reliance

US v Leon (1984): Police acted pursuant to facially valid warrant that was later found to be unsupported by probable cause. HELD: Absent a showing that the magistrate was not detached & neutral, suppression ONLY appropriate if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.

Rule cannot be said to have a deterrent effect on magistrates – as neutral parties, they have no stake in the outcome of any case, so there’s no reason to assume it would be advantageous to them to violate the 4th Amdt.

Exclusion of evidence obtained by warrant is appropriate only in cases that would further purpose of deterring police misconduct: cannot deter objectively reasonable police activity

o Suppression appropriate where: (1) police mislead magistrate with info known to be false or recklessly asserted; (2) magistrate abandoned its role of neutrality [Lo-Ji Sales];


(3) belief in probable cause unreasonable [i.e. bare bones affidavit]; (4) facially deficient warrant—can’t reasonably be considered valid [i.e. lack of particularity]

Massachusetts v Sheppard (1984): Technical error committed by magistrate: in homicide investigation, M signed warrant form normally used to conduct drug searches, but forgot to cross out the language in the form that authorized police to search for controlled substances—warrant lacked particularity, but officer paid no attn. EVIDENCE PERMITTED.

LAW ENFORCEMENT ERRORS – Herring v US (2009): Police arrested H pursuant to an active warrant listed in a neighboring county’s sheriff-run database. In a warrantless search incident to arrest, the officers discovered drugs & a gun. Turned out that the computer hadn’t been updated & that the warrant had been recalled months prior—i.e. the arrest was unlawful. HELD: Exclusionary rule does NOT apply to evidence obtained pursuant to a good-faith belief in a warrant, despite an error in that warrant by a law enforcement agency.

FRUIT OF THE POISONOUS TREE DOCTRINE Generally, 4th Amdt. protection covers not only the physical possession but also the advantages

the govt. can gain over the suspect by doing the unlawful search or seizureo Silverthorne Lumber v US (1920): 2 defendants were arrested in their homes. While in custody, police

conducted a warrantless sweep of their office. Govt. conceded that the seizure was unlawful, but sought the right to take advantage of the info obtained before returning the documents. HELD: Knowledge gained from govt. wrong may NOT be used to its advantage.

FRUIT OF THE POISONOUS TREE DOCTRINE: Govt. cannot violate 4th Amdt. & use the fruits of that conduct to secure a conviction. Nor can the govt. make indirect use of such evidence for its case, or support a conviction on evidence obtained through leads from the unlawfully obtained evidence.

o E.g. if police seize X in violation of the 4th Amdt., they may not use Y if it is a fruit of the initial violation. EXCEPTIONS: PERMISSIBLE USES OF FRUIT: o (1) Independent source doctrineo (2) Inevitable discovery ruleo (3) Attenuated connection principle

INDEPENDENT SOURCE DOCTRINE – Murray v US (1988): Acting on a tip, police were surveilling M & co-conspirators. Saw them drive into a warehouse & later followed them as they left. Eventually stopped & arrested the drivers & lawfully seized the cars, which contained weed. Police then went into the warehouse & found more weed but left without disturbing it. They applied for a warrant without reliance on observations made during the prior entry. When the warrant issued they returned & seized the weed. M moved to suppress.

Independent source doctrine applies to evidence initially discovered by unlawful search, but later obtained independently, from activities untainted by the initial illegality

o i.e., permits evidence acquired by an untainted search that is identical to evidence unlawfully acquired Exclusion ONLY proper if info obtained during unlawful entry formed basis of agents’ decision to seek

the warrant, or was presented to the magistrate & affected his decision to issue the warrant.

INEVITABLE DISCOVERY RULE – Nix v Williams (1984): W arrested on suspicion of child abduction. In custody, police gave Christian Burial Speech prompting him to lead them to the body. Police were already searching & within 2.5mi of the body, but when W agreed to disclose the location the search was called off. Independent source doctrine unavailable because they couldn’t show that they found the body independently of the 6 th Amdt. violation.


If prosecution can est. that the info ultimately or inevitably would have been discovered by lawful means, then the deterrence rationale has so little basis that the evidence should be received

ATTENUATION (DISSIPATION OF TAINT) – Wong Sun v US (1963): EVEN IF certain evidence is causally tied to an earlier illegality, at some point the fruit from the tree is sufficiently untainted so as to be admissible at trial.

Generally: 1. Identify constitutional violation; 2. Identify the evidence govt. seeks to introduce; 3. Determine whether (2) comes from (1) – causal link; 4. If there is a causal link, identify any facts that may justify the conclusion that the link is too attenuated to be harmful

o E.g., if the name “Sandra” was obtained unlawfully, but months later, Sandra decides she wants to help with investigation, her fruit is too attenuated to be suppressed.

4 factors used to determine when the connection is sufficiently attenuated: o 1- Length of time between initial illegality & seizure of fruit in questiono 2- Flagrancy of initial misconduct – dissipation of bad-faith violations takes longero 3- Existence or absence of intervening causes of the seizure of the fruito 4- Presence or absence of an act of free will by the defendant resulting in the seizure of the fruit

INTERROGATION LAW

DUE PROCESS: VOLUNTARINESS REQUIREMENT

Due Process Clause (5th & 14th) prohibits the admissibility of involuntary statements Rationales for constitutional protection during interrogation:

o Prevent unreliable evidence Factual accuracy of statements made in conditions of extreme duress is problematic – want to

use only statements that demonstrate some minimal level of freedom/voluntariness on the part of the accused

Reduce risk of false confessions & of convicting innocent personso Deter police misconduct / torture Involuntariness requires some sort of STATE ACTION (“official overreaching”)o Colorado v Connelly: C had chronic schizophrenia & took directions from “voice of God,” which told him

to fly from Boston to Denver, and in Denver, told him to confess to unsolved murder or commit suicide. Undisputed that he confessed because his choice was to do so or kill himself. Held: Voluntary for DP purposes.

Regardless of state misconduct, there MUST be a link between the coercive activity & the confession as a result of that coercion .

Dissent: state action or not, the involuntary confessions are unreliable Counterargument: this is not a matter of constitutional law – this is a matter for the

rules of evidence to address

Torture & Confessions: Rationale for suppression based on morality Hector (A slave) v State (Mo. 1829): H repeatedly “flogged” and whipped all night until he confessed to a

burglary. Counsel moved to exclude testimony of one to whom he’d confessed who had gone to his aid, on grounds that H’s confession wasn’t free/voluntary but extorted by pain. Court refused + also


permitted evidence of the other confessions, with instruction that jury could only consider confessions it thought voluntary. Held: Jury instruction was error.

o Whether a confession is sufficiently free & voluntary is a matter of law – not up to the jury. Brown v Mississippi (1936): 3 black guys accused of homicide & were tortured until they confessed to

the crime. Everyone involved actually acknowledged these events, only to deny them later. Pre-incorporation, Court reached its decision under the DP Clause:

o Methods taken to procure confession here completely offensive to our sense of justice use of the confessions obtained as the basis for conviction was fundamentally unfair

o Conviction & sentence void for want of due process exclusionary rule is part of the right enforced by the DP clause.

Use of torture in emergency situations (particularly post-9/11): o If deterrence is the rationale for exclusion of involuntary statements, it is not likely to be served in

“ticking time bomb” interrogation situations o If accuracy or morality are the reasons for exclusion, then torture is objectionable regardless of the

reason for its implementation

INTERROGATION WITHOUT TORTURE: Involuntariness factors –o Characteristics of the suspect: background, age, etc.o Morality of police conduct (to the extent voluntariness is a normative inquiry)

Lisbena v California (1941): J suspected of killing his wife. Was held in custody for 2 days prior to being arraigned, without counsel. He was slapped but no threats were made and he didn’t incriminate himself. 11 days after initial interrogation, another man, Hope, was arrested for the murder & made statements incriminating J. At this time, J was removed from jail & again questioned for over 12hrs without his atty. present. He confessed & named H as the mastermind. J claimed that officer threatened to beat him, but state argued that J confessed after officer agreed to take him out to eat. Held: not fundamentally unfair for trial court to have admitted the confession.

Not the type of coercion that amounts to fundamental unfairness: he admitted that he wouldn’t have confessed if H didn’t implicated; he wasn’t threatened or beaten during the questioning; & he had full opportunity to seek (and did seek) advice of counsel.

Confession excluded if involuntarily made because inherently untrustworthy. Purpose of the exclusionary rule is to exclude false confessions

Spano v New York (1959): S was badly beaten & robbed; went to get a gun & shoot the guy in a store, with 1 eyewitness. He told his friend B, who was training to be an officer, & told him he was going to get an atty. & turn himself in. Atty. told S not to answer any Qs when left in custody with police. Questioning lasted for 5hrs, with S refusing to answer any Qs & requesting his atty. He was transferred to another station & questioning resumed. Police called in B & told him to elicit sympathy by telling S that B would be in a lot of trouble & that he was worried about his family. After 4 separate attempts, S finally agreed to make a statement, to which 3 DAs testified at trial. Held: conviction overturned; method of procuring confession violated 14th Amdt.

Factors: S was foreign-born, 25, little education, & emotionally unstable. He was questioned for 8hrs straight, overnight, by multiple men. Use of his childhood friend to falsely elicit sympathy was a big factor. In the end didn’t make a narrative statement but answered leading Qs of prosecutors.

Damage to society of involuntary confession is based on the notion that police must obey the law—and law enforcement is aware of the burdens they must meet


Arizona v Fulminante: informant targeted fellow inmate suspected of murdering stepdaughter, seeking to get him to confess. F repeatedly refused. When informant told him “you’ve been getting threats, I can protect you but you have to tell me what happened,” F finally confessed. Court overturned conviction: found his confession was coerced based on credible threat of violence & offer to protect (close case though).

Dissent: At no time did def. indicate that he was in fear of other inmates, nor did he seek informant’s protection. Since F was unaware that S was a govt. informant, there was no police coercion because fellow inmate had no obligation to protect him anyway. F was experienced & fully able to fend for himself.

5T H AMDT. PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION

NO PERSON…SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF 5th Amdt. violation only occurs when the compelled testimony is used in a criminal case against

the persono Primary purpose of the rule is to prevent “cruel trilemma” of either incriminating yourself, being placed

in contempt, or perjuring yourselfo Concern is criminal trial – but it does have some relevance outside of that (e.g. grand jury)

Witnesses may be compelled to testify before grand juries if given use & derivative use immunity (Kastigar v US)

Privilege is a bar against communications/testimony – real or physical evidence does NOT violate 5th Amdt.

o Schmerber v California: S argued that by being forced to give blood he was compelled to be a witness. Court rejected the claim.

Chavez v Martinez (2003): M was a suspect who was shot by police & the wound resulted in permanent paralysis & loss of vision. He was repeatedly questioned at the hospital & kept refusing & begging for medical treatment. Finally admitted to grabbing cop’s gun, but the answers were never used against him, as he was never charged with a crime. He sued under 1983, arguing violation of 5th & 14th Amdt. right to be free from coercive interrogation.

Held: NO remedy covered by the 5th Amdt. His statements were never admitted against him in a criminal trial, so he was never compelled to testify as a witness against himself. Court refuses to extend “criminal case” to cover the entire criminal investigatory process (i.e. interrogations)

MIRANDA

1966. Four cases, all involved a confession without physical coercion. Defendants were held incommunicado, interrogated in a police-dominated atmosphere. Police controlling their environment & they had no access to the outside world.

CUSTODIAL INTERROGATION = questioning initiated by law enforcement after an individual has been taken into custody or deprived of their freedom in any significant way.

o Law enforcement NOT required to warn you during every interaction: Consensual interactions not barred Interactions outside of custody are not barred

o Real action is not at the mansion (courthouse) but at the gatehouse (police interrogation). 5 th Amdt. Privilege is meaningless if it cannot be invoked when it is most needed (i.e. irrelevant at trial if you’ve already incriminated yourself outside the courtroom)

o Warning requirement is a reasonable burden to impose & meant to completely eliminate inquiry into individual’s subjective knowledge. Due process issue is less problematic when the inquiry is limited to: warning or waiver?


o Until Cong./states establish alternative procedures to protect these constitutional rights, Miranda will be the law (i.e. may be supplemented as long as the new law is effective at safeguarding)

Illinois v Perkins (1990): Encounters between suspects & undercover officers are NOT subject to Miranda. Warnings aren’t required when the suspect is unaware that he is speaking to law enforcement & gives a voluntary statement such conversations do not implicate concerns underlying Miranda (police-dominated atmosphere & compulsion). Coercion is determined from the perspective of the suspect.

CHECKLIST FOR MIRANDA:1. Triggering mechanism: “custody” & “interrogation” treated as 2 independent requirements

NOT implicated by consensual interactions or interactions outside of custody2. If triggered, warnings required—but may be waived

CAN get valid waiver after invocation of right to silence CANNOT get valid waiver after invocation of right to counsel – Edwards rule

3. If warnings: (a) are not given when required; or (b) are given but a valid waiver is not secured: suspect’s statements to police are generally inadmissible. Exceptions:

Circumstances where police don’t have to give the warnings before custodial interrogation?o Public safety exception: questions reasonably prompted by concern for public safety – does NOT

depend on individual officer’s motive. (Quarles) Circumstances where remedy for violation does NOT require total exclusion of the Miranda-less

statement?o Impeachmento Fruits of Miranda violation: any subsequent, informed (post-Miranda) statement generally

admissible BUT: Where circumstances don’t support that warnings could’ve effectively served their

purpose, post-warning statements inadmissible. (Seibert)

Status of Miranda : Confession taken in violation of Miranda CAN be used to impeach defendant’s testimony if he

testifies at trial. (Harris v NY, 1971)o Recall: evidence taken in violation of 4th Amdt. may be used to impeach defendant’s testimonyo BUT: Defendant’s compelled statements (as opposed to those taken in violation of Miranda ) may NOT

be put to ANY testimonial use against him in a criminal trial Violation of Miranda does NOT constitute a violation of the underlying 5th Amdt. right itselfo Michigan v Tucker (1974): T was interrogated before Miranda decision, but trial took place afterward—

at which evidence offered was not statements by T but by a witness T named in interrogation to substantiate his alibi. Court denied that a constitutional violation had occurred.

Miranda merely supplies prophylactic standards to safeguard the 5 th Amdt. privilege . Court balanced:

1- additional deterrence that would result from forbidding witnesses to testify, given that T’s statements were suppressed; vs.

2- value of having all relevant & trustworthy evidence presented to jury

PUBLIC SAFETY EXCEPTION: Miranda warnings not strictly required where police ask questions reasonably prompted by a concern for public safety – does NOT depend on individual officer’s motive

In such situations, do NOT want to deter suspects from responding answer not sought purely to build a case, but instead to insure against further danger to the public


Cost to society would be too large to require individual police officers to conduct private balancing test in the heat of the moment

Narrow exception – in each case circumscribed by the exigency justifying itNY v Quarles (1984): woman approached police on patrol, told them she’d just been raped. Described the guy in detail & said he had a gun and had just entered a grocery. Officer went in; when Q saw him he ran to the back. Officer caught up to him, frisked him, & discovered an empty holster. Asked Q where the gun was & Q nodded and said “the gun is over there.” O went to get it, arrested him, & read him his Miranda warnings. Q agreed to speak without an atty. & told O that he owned it and where he got it. Trial judge excluded the gun, “the gun is over there,” and the remaining statements as fruits of violation. Held: exigencies justified exception to Miranda requirement. All statements should have been admitted, because no violation occurred.

Failure to provide warnings in & of itself doesn’t make a confession involuntary. Compulsion is a distinct concept.

FRUITS OF MIRANDA VIOLATION: GENERALLY – Admissibility of any subsequent, informed (post-Miranda) statement should turn SOLELY on whether it is knowingly & voluntarily made.

Miranda exclusionary rule is broader than 5th Amdt. – presumption of compulsion allows it to be triggered even absent 5th Amdt. violation. Inappropriate to extend Miranda to undermine suspect’s later voluntary & informed waiver.

Oregon v Elstad (1985): 18yr old implicated in home burglary. Police went to his house with an arrest warrant, told him why they were there, and he said “I was there.” Later at the station they read him Miranda warnings & he said that he understood his rights & wanted to speak to the officers. He gave a full statement, which he reviewed and signed. State conceded he was in custody when he made the statement at home, so it violated Miranda and was properly excluded.

Held: Absent deliberate coercion/improper tactics in getting the initial statement, subsequent post-Miranda statements are NOT tainted by presumption of compulsion

Missouri v Seibert (2004): Crazy family who burned mentally ill child in motor home. Police protocol whereby police would conduct interrogation until a confession was procured, THEN would issue Miranda warnings & seek to get confession again. Issue regarding admissibility of the 2nd confession.

Held: Where circumstances do not support that warnings could have effectively served their purpose, post-warning statements inadmissible.

Distinguished Elstad: Reasonable person in Elstad’s shoes could have seen the station house questioning as a new & distinct experience, such that warnings offered a genuine choice whether to follow up on the prior admission. FACTORS:

o Completeness & detail of the Q&A in the first round of interrogationo Overlapping content of the 2 statementso Timing & setting of the first and secondo Continuity of police personnelo Degree to which interrogator’s questions treated the second round as continuous of the first

Note: Miranda-violation does NOT require suppression of the physical fruits of a confession

CUSTODY CUSTODY = freedom of action restricted in a significant way

Oregon v Mathiason (1977): M suspected of burglary while on parole. Police left a card at his house asking that he call, and when he did, they asked him to come in to talk. He went to the station & was told he wasn’t under arrest; they told him he was a suspect & that they would take honesty into consideration; they LIED and told him they found his prints, & he confessed. Then was read his warnings & officer procured a taped confession. Afterward they let him go. HELD: NOT in custody for purposes of Miranda.


ANY interview of a suspect could be deemed coercive because police may ultimately charge him with a crime—but Miranda is not a requirement every time police question someone

Here: came voluntarily; told he wasn’t under arrest; & left without hindrance 30min later. Irrelevant that they lied about evidence.

Dissent: he was a parolee – cannot say he didn’t feel coerced.

NOTE: Interview that begins as a voluntary appearance + assurances of no arrest can become custody over time.

Berkemer v McCarty (1984): M pulled over after swerving. Asked out of the car, at which point officer decided he’d be charged with a traffic offense. Failed field sobriety & in response to Q, told officer he had some beers and joints. At the station, no alcohol showed in his system. Was asked if the weed was laced with anything & he wrote and signed “no angel dust or PCP.” Was never Mirandized.

Roadside questioning of a motorist detained pursuant to a traffic stop NOT a custodial interrogation for purposes of Miranda. Although freedom briefly restricted (considered a Terry seizure), NOT the type of situation Miranda was concerned with.

o 1. Traffic stop detention presumptively temporary & brief (usually only a few min. of Q then citation)o 2. Circumstances not such that motorist feels completely at mercy of police (public situation) Miranda applies once motorist is thereafter subjected to treatment that renders him “in custody” – to a

point associated with formal arrest

INTERROGATION Miranda required whenever a person in custody is subjected to express questioning or its functional

equivalent. FUNCTIONAL EQUIVALENT = any words or actions on the part of police (other than those

normally attendant to arrest & custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Objective test: Should officer have realized that his actions or words were reasonably likely to result in a statement from the suspect?

o Where police have special knowledge about the effect on a particular arrestee of a line of statements, that could be sufficient

Rhode Island v Innis (1980): Innis arrested in connection with a murder, but the gun had not yet been found. He was Mirandized & invoked his right to counsel before being taken into the station. In patrol car, the 2 cops spoke to each other about how there’s a handicapped school in the neighborhood, and how it would be a shame if a little girl came upon the gun & accidentally killed herself. Innis interrupted them & told them to turn around so he could show them where the gun was. HELD: Innis not interrogated – “functional equivalence” test not met.

Nothing suggested the officers should have known he was:o Particularly susceptible to appeal to conscience regarding safety of handicapped kids; oro Unusually disoriented or upset at time of arrest “Subtle compulsion” to respond is not functionally equivalent to interrogation

WAIVER & INVOCATION OF RIGHTS PRESUMPTION (from post-Miranda silence) that defendant did not waive his rights. High burden

for prosecution to meet, but in some cases waiver may be clearly be inferred from the actions + words of the person being interrogated

Question is whether defendant knowingly & voluntarily waived his rights.


NO per se rule requiring express waiver Finding of waiver must be based on the circumstances—including background, experience, & conduct of the accused

Edwards v Arizona (1981): E arrested & warned. Said he understood & was wiling to answer questions. Was told someone else implicated him. He wanted to make a deal but said he would need an atty. first. They stopped questioning but the next morning came to talk to him again. Mirandized him again & allowed him to hear accomplice’s statement. He said he’d make a statement as long as it wasn’t tape recorded. Later moved to suppress confession on grounds that Miranda rights were violated when questioned after he invoked right to counsel.

When accused has invoked right to have counsel present, a valid waiver of that right CANNOT be established by showing only that he responded to further police-initiated custodial interrogation, even if again advised of his rights.

Accused who has invoked right to counsel is not subject to further interrogation until counsel is made available UNLESS he himself initiates further communication, exchanges, or convo with police.

Minnick v Mississippi (1990): M told agents “come back Monday when I have a lawyer. M consulted with atty. a few times. Police came, Mirandized him, & he declined to sign waiver but answered Qs. Held: statements inadmissible.

Once a suspect invokes his right to counsel, police may not reinitiate interrogation in the absence of counsel .

Request for counsel MUST be unambiguous before Edwards applies. Davis v US: ½ hr. into the interview, he said “maybe I should talk to a lawyer.” Had him clarify whether he was asking for a lawyer, or just contemplating. He said “no, I don’t want a lawyer.” They spoke for another hr. then he stopped again & said “I want a lawyer.”

HELD: First statement not an invocation of the right. Merely a recognition of his rights.

Berghuis v Thompkins (2010): T suspected in shooting. Police went to interrogate him. Had him read the printed Miranda form, and had him read the 5th line out loud to test his literacy. Then read him the rights. He didn’t sign the form. Questioned him for awhile, he was pretty quiet, sporadically giving one-word answers. Stayed silent for awhile, then the following line of Qs ensued:

Q: do you believe in God? A: yes Q: do you pray to God? A: yes Q: do you pray to God to forgive you for shooting that boy? A: yes Court implied waiver: he could read; no indication that he didn’t understand his rights; he was read his

rights’ he gave these monosyllabic responses; last line of questioning IF HE WANTED TO STAY SILENT OR TO EXPLICITLY INVOKE HIS RIGHT, HE COULD HAVE DONE EITHER. Response to the question about shooting the boy was enough for the court to find that he waived his right.

o CAN PROVE WAIVER (+ UNDERSTANDING OF RIGHTS) IMPLICITLY: It’s acknowledged that silence alone won’t do—but silence plus may suffice.

NOTE: You CAN get a valid Miranda waiver after an individual invokes their right to silence . Invocation of the right to silence is NOT the same as invoking the right to counsel.

Invocation of the right to counsel is far stronger CANNOT waive it subsequent to invocationo Invocation indicates that the accused doesn’t feel confident talking to police without an atty.o Invocation of right to silence indicates that the accused doesn’t feel confident speaking

6T H AMDT. RIGHT TO COUNSEL


ELICITING STATEMENTS IN THE ABSENCE OF COUNSEL:Massiah v US (1964): M indicted under fed narcotics laws. Got a lawyer, plead not guilty & released on bail. Few days later, co-def. C decided to cooperate with police in continuing investigation. C allowed agent to install radio transmitter under front seat of Cs car. Prearranged with agent to listen to a convo with M. Incriminating statements were admitted against M through agent’s testimony, & M was convicted.

Held: M was denied basic protections of 6 th Amdt. guarantee when there was used against him at his trial his own incriminating statements, which fed agents deliberately elicited from him after he had been indicted & in the absence of counsel. Here, he was more seriously imposed upon because he didn’t even know that he was under interrogation by govt.

DELIBERATE ELICITATION: US v Henry: H indicted for bank robbery & held in jail. Agents contacted inmate N, who had been

working as a CI. N testified at trial that H told him about the robbery.o Instructions given to N by agents: be alert to statements that H made re his charges; don’t question H

about the charges; don’t initiate convo with H re the robbery; BUT, if H initiated the convo, pay attn. to the info furnished.

o Held: DELIBERATE ELICITATION. (Broad reading). Reason for treating this the same as Massiah: Accused speaking to known govt. agent generally aware that statements may incriminate him Not the case with fellow inmate acting by prearrangement as a govt. agent

Kuhlmann v Wilson: similar facts as Henry, only here – claim is that police didn’t set up informant to interrogate/ elicit anything. 6 th Amdt. does not block all incriminating statements. Informant here was merely acting as a listening post.

o NO deliberate elicitation if NO questioning that looks like police have substituted someone else in to interrogate. (BUT, Henry still good law).

MASSIAH WAIVER:Brewer v Williams (1977): W murdered a girl at YMCA. Wrapped up the body & drove away. Disposed of body somewhere & wound up 160mi away. Turned himself in there. Meanwhile, atty. visited local police & informed them of his surrender. This atty. tells police not to interrogate him on the ride back to Des Moines. While in Davenport, his atty. there also instructs police not to question him. Police wouldn’t let atty. ride in the car with them. W was mentally ill and very religious. On the way, gave him Christian burial speech. Eventually on the trip he led them to the body.

6th Amdt. right to counsel attaches at the start of the criminal process—once some formal document/ charge/etc. has been levied, the accused has a right to have counsel present.

Held: W did NOT waive his 6th Amdt. right. Majority emphasized his constant & repeated consultation with counsel, both in Davenport & Des Moines.

Patterson v Illinois: Indicted for gang murder; transferred to county jail. Asked officer who else was indicted, officer told him, & he said “why wasn’t X indicted, he did everything.” Officer stopped him & Mirandized him, then P continued to give full incriminating statements.

Individuals CAN waive 6th Amdt. right to counsel. NO distinction here between post-Miranda interrogation & post-indictment interrogation.

6 th Amdt. is NOT superior to or more difficult to waive than 5 th Amdt. counterpart.

Montejo v Louisiana: OVERRULED Jackson, which had imported Edwards rule to 6th Amdt. context. Costs outweigh benefits – when it creates a prophylactic rule to protect Const. right, must balance. 6th Amdt. creates NO broader right to counsel during interrogation than Miranda provides. NOT

barred from approaching someone & obtaining info until the person has explicitly requested counsel.o If accused is in custody at the time, & therefore properly informed of Miranda rights, he may –


1. Assert Miranda right to counsel Edwards applies; OR 2. Voluntarily & knowingly waive Miranda rights valid waiver of 6th Amdt. right to counsel

DIVERGENCE – MASSIAH & MIRANDA:McNeil v Wisconsin (1991): arrested in Omaha. Police came to pick him up & take him back to Milwaukee. He refused to speak on the way. Was represented by a public defender. Was visited in jail by a detective & questioned about another set of crimes.

6TH AMDT. IS OFFENSE-SPECIFIC. FACT THAT YOU HAVE INVOKED THE RIGHT WITH REGARD TO CRIME X HAS NOTHING TO DO WITH YOUR RIGHTS RESPECTING CRIME Y.

Texas v Cobb: Court adopts Blockburger –Double-Jeopardy test for determining what constitutes the same offense: As long as at least ONE element in one of the 2 crimes is not an element of the other, the offenses are not the same for purposes of the 6th Amdt.

o Ex: Indicted for burglary, questioned about a murder & confessed. No one has to die to be charged with burglary NOT protected by 6th Amdt. as to murder offense.

Kansas v Ventris (2009): After heavy drug use for 2 days, V confronts a guy who owed him a lot of money and ends up killing him. Friend who helped transport him to the guy’s house ends up telling police; police strike a deal with V’s co-defendant to testify against him. Henry-type violation occurred & Court accepts that as a violation. Then V takes the stand & says that co-defendant was lying. Prosecution seeks to put informant on the stand to impeach him.

Issue: Whether you can use info that court accepts as a 6th Amdt. violation to impeach defendant’s testimony.

o May do so with both 4th Amdt. and Miranda (5th Amdt.) violations HELD: Defendant may be impeached with info obtained from 6th Amdt. violation. Real core of 6th

Amdt. is about the denial of counsel at trial. Admitted that it applies outside the courtroom—but there are limits. Will not allow someone to undermine the truth-seeking process by taking the stand & lying. This action is NOT protected by Massiah.

Documents

King CrimPro Fall2014