My CrimPro

7/28/2019 My CrimPro

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CRIMINAL PROCEDURE

P121 KATZ & NEW TECHNOLOGY: Back to the Future?

KYLLO V. U.S.

(USC 2001)FACTS: Agent Elliot of Dept of Interior suspected Kyllo in growing Marijuana.

At 3:20 Am Jan 16, 1992 Elliot and others used an Agema Thermovision 210 to scano Therma imagers use infared then converts the radiation into images based

on relative heat. The scan was takenfrom street in back of house Images showed roof over garage and side wall of home were substantially> in heat

Based on informants, utility bills, and thermal imaging warrantissued for search of home where they found > 100 plants.

ISSUE: Whether the use of a thermal-imaging device aimed at a private home from apuplic street to detect relative amounts of heat within the home constitiutes asearch within the meaning of the Fourth Amendment.

RULES: At the very core of the Fourth Amendment stands the right of a person to

retreat into their home and there be free from unreasable govt intrusion

Visual surveillance was lawful because the eye cannot by the law be guilty of trespass Court has held that visual observation is not a search

o Katz: Reversed principle from case has been used to determine I: whetheror not a search is a search. P123

o Florida v. Riley: Held that aerial surveillance of private homes andsurrounding areas did NOT constitiute a search.

o Silverman: P124: Obtaining by sense-enhancing technology any info regarding the interior

of the home that could not otherwise have been obtained without physicalintrusion into a constitiionally protected area constitutes a search*At least ashere the technology in question is not in general public use.

DISSENT: P127 All that the infared camera did in this case was passively measure

heat emitted from the exterior surfaces of petitioners home; and is differentfrom things like x-rays which are through the wall.

Sucha use of senses, i.e. determining what part of the room/building is warmer,instead here an adjoining neighbor allowed an officer onto her property to verifyher perceptions with a sensitive thermometer.

QUESTION AND ANSWERS

Night Vision Goggles: while readily available to the public the majority in Kyllomakes it clear that they are concerned with the erosion ofthe Fourth Amendment Rights.

P.114-121 (n5-8)

Note 5: Open Fields

Hester v. U.S. 1924:o Open Fields Doctrine: police entry of an open field does not implicate 14th

Oliver v. U.S. 1984: held good law afterkatz and that an open field includes anyunoccupied or undeveloped area outside of the curtilage of a home. An open fieldneed be neither open nor a field as those terms are used in common speech.

o Put No Trespassing signs up and maybe even barbed wire.


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o In Kentucky at the time trespass constituted a criminal offense. Nor are open fields effects within the meaning of the Fourth

Amendment.

Effects is less inclusive than property and cannot be said toencompass open fields.

Hold; that the govts intrusion upon the open fields is not an unreasonable searchproscribed by the fourth amendment.

o Precedentially: an individual may not legitimately demand privacy foractivities conducted out of doors in fields, except in the area immediatelysurrounding the home. curtilage Open fields do not provide the setting for those intimate activities

the Fourth Amendment is intended to shelter from govtinterference or surveillance.

Note 6: Curtilage: An area of land attached to a house and forming one enclosure withit: "the roads within the curtilage of the development site".

four factors

1: proximity of the area claimed to be curtilage to the home

2) Whether the area is included within an enclosure surrounding the home

3) The nature of the uses to which the area is put

4) Steps taken to protect the area from observation by people passing by.o DUNN: requires courts to conduct case-by-case determination of whether

the police have entered a curtilage as distinguished from an open field.

Note 7: Aerial Survellance of a curtilage

California v. Ciraolo: private plane at 1,000 feet above ground and readilyidentified marjijana plants and based on this obtained warrant.

o Held; not a search.. Large Dissent

Note 8: Rifling through garbage

P133

U.S. v. JONES

2012

PROF: justices appear to be arguing whetherkatz is the exclusive testISSUE: whether the attachment of a GPS device to a car and subsequent use of that devie

to monitor the cars movements on public streets constitutes a search or sizurew/in 14th.

FACTS: Jones owned night club in DC. Suspected of trafficking narotics.

Tracked car for 28 days. Once had to change battery. Got over 2,000 pages of

data.PH: held that data obtained while the car was parcked in his garage was INADMIT butthat all the other data obtained while on public streets ADMIT

Reason: because a person on public streets has no reasonable expectation ofprivacy in their movements from place to another.

HERE:The govt physically occupied private property for the purpose of obtaininginformation and there is no doubt that such a physical intrusion would havebeen considered a search within the meaning of the Fourth Amendment whenadopted.o Trespassing portion of test


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KATZ: deviates from this strict approach and expands the test andunderstanding of the analysis to include reasonable expectation

GOVT ARG: Uses three cases1: KNOTTS:Beeper attached to car before it was in Ds hands. Held: that the

reasonable expectation prong of the test and did not challenge thatinstallation before in defendants hands.

2: KARO: Beeper installation. Held: that the government first came into physicalcontact with the beeper container before it belonged to defendant andsecond that the transfer of the container with the unmoniteored beeperinsude did not convey any information and thus did not invadedefendants privacy.

Secondly KARO was considering whether a seizure occurred, and a seizureoccurs, not when there is a trespass, but when there is some meaningfulinterference with an individuals possessory interest in that property

o Here different before the defendant possessed and owned the car andtracked device at the time the govt trespassorily inserted the informationgathering device,

MAJORITY: Does not make the katz exclusive trespass test the only test.

Minor ISSUE: There is no precedent for the proposition that whether a search

ahs occurred depends on the nature of the crime being investigated.o On the other hand the govt also argues that even if attachment and use of

device was a search it was reasonable. However, The govt did NOT raise the issue below and thus, is not

addressed here.HOLD: Illegal search. Concurrence would make katzthe exclusive test.

J. SOTOMAYOR CONCURRING:the government usurped Jones property for thepurpose of conducting surveillance on him, thereby invading privacy interestslong afforded and undoubtedly entitled to Fourth Amendment Protection.

Also: even in absence of trespass a 4

th

Am serach occurs when the govt violatesa subjective expectation of privacy that society recognizes as reasonable.o KATZs: reasonable-expectation-of-privacy tst augmented, but did NOT

displace or diminish, the common law trespassory test that preceeded it. RULE: when the government physically invades personal property

to gather information, a search occurs. P139.

The same technological advances that have made possiblenontrespassory surveillance techniques will aslo affect thekatz test by shaping the evolution of societal privacyexpectations.

J. ALITO; GINSBURG; BREYER; KAGAN CONCURRINGI would analyze the question presented in this case by asking whether

respondents reasonable expectations of privacy were violated by the long termmonitoring of the movements of the vehicle he drove

o The attachment of the GPS was not itself a serach NOR does the majroritycontend that the use of the device constitiuted a search either. Majority follows KNOTTS

Four flaws


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1) Marjoirty focuses on the attachment of the GPS itself and not the long-termtracking because if long-term tracking can be accomplished without committing atechnical trespass the majoritys theory would provide no protection.

2) The majoritys reasoning, that because the GPS was installed after D. owned thecar created the trespass and search and that IF it had been attached before it wouldnot be a search. Finds flaw in that a bailee: A person or party to whom goods aredelivered for a purpose, such as custody or repair, without transfer of ownership.

3) Majority reasons that the 14th amendment would apply State by State because

community property states vs. separate property states and thus, ownership andtitle would vary.

4) Issue with trespass law.

U.S. v. KARO

FACTS: Tracking device placed into can of chemicals before it was owned by D. andwith the consent of the original owner.

RULE: p148 A Siezure of property occurs when there is some meaningful interferencewith an individuals possessory interests in that property.

However, brief the property is interefered with in a meaningful way it is a seizure.ISSUE: Whether installation of a device into property with the permission of the original

owner constitutes a seizure within the meaning of the Fourth Amendment whenthe container is delivered to a buyer having NO knowledge of the presence of thebeeper.

HOLD: Here it cannot be said that anyones possessory interest was interfered with ameaningful way.

Florida v. Riley p120

FACTS: helicopter over covered ggreenhouse.

Property was within the curtilage

holding would be different if the flying altitude had been contrary to law orregulation

HOLD: not a search. Court held based on 4 votes.

Pluraity:

KYLO v. US

2008

FACTS: Thermal detector used form street to expose exesesive heat signaturesindicating the presence of a marijuana growing operation. Search warrant wasissued based on this info and informations.

RULES: We have applied this tets Katz in holding that it is not a serch for police to usea pen register at the phone company to determine what numbers were diald in aprivate home [Smith v. MD] and we have applied the test on two dif occasionsin holding that aerial surveillance of private homes and surrounding areas doesnot constitiute a serach [Ciraolo & Florida v. Riley]

P124 we think that obtaining by sense-enhancing technology any info regardingthe interior of the home that could not otherwise been obtained w/o physicalintrusion into constitutionally protected area constitutes a serach at least where

as here technology in question is not in general public use. thus, search.o (1) information obtained by sense-enhancing technology;o (2) of information regarding the interior of the home;


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o (3) that could not otherwise have been obtained without physical intrusiono (4) and at least as here the technology is not in general public use.

Note 5: record showed a similar product that is publicly availableand sold in numbers around 800 less than the one in question.

GOVT ARG: [Dow Chemical: enhanced imaging techniques and did not reveal intimatedetails was and thus was not a search.

Here: the fourth amendments protection of the home has never been tied tomeasurement of quality/quantity of info. [Silverman: any physical invasion of

the home, by even a fraction of an inch was too much, and cause law tells usthat any detail is an intimate detail.HOLD: where the govt uses (1) a device that is not in general public use, (2) to explore

details of the interior home (3) that would previously have been unknowablewithout physical intrusion, the surveillance is a search and is presumptivelyunreasonable without a warrant.

DISSENT:all the infared camera did in this case was passively measure heat emittedfom the exteriorsurfaces of petitioners home; all that those measurementsshowed were relative differences in emission levels what areas were warmer.

Dif: from x-ray scans which make it possible to see through-the-wallo such use of the senses would not convert into an unreasonable search

if, instead, an adjoining neighbor allowed an officer onto her proerptyto verify her perceptions with a sensitive thermometer. There is no reasonable expectation that things like heat

waves, or aromas from a kitchen, would remain private.

Nothing more was involved in this case than thedrawing of inferences from off-the-wallsurveillance, rather than any through-the-wallsurveillance.

P128 [US. V PLACE: drug sniffing dog the court held that a dog discloses onlythe presence or absence of narcotics and does not constitute a search.

o Dissent would argue that the thermal imaging thing is the same.

The thermal imaging takes place outside the private and protected space andenables the person outside this space to know what is going on inside this privatespace just as in katz the recording device was on the outside of the phoneboothenabling the officers to know what is going on inside the private phone booth.

In U.S. v. Forrester: US court of appeals held that an internet user has noexpectation of privacy in the email addresses.

P14p note 4: Cops may seize what they have probable cause to believe is criminalevidence falling within three categories:

(1) contraband evidence that may not lawfully be possessed by a private person(2) fruits of a crime(3) instrumentalities used in the commission of an offense (i.e a weapon, get-away car)(4) Mere evidence an item of value to the cops solely because it will help in theapprehension or conviction of a person for an offense. I.e. blood stained shirt in homicideinvestigation. Gouled v. US: stated that these could not be seized because the govtneeded a proprietary interestabandoned the mere evidence rule concluding Seizure of a person: [Terry v Ohoio: court held that a seizure occurs when the

officer by means of physical force or show of authority has in some wayrestrained the liberty of a citizen


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Chapter 4: The Substance of the Fourth Amendment

A. Probable Cause

Probable cause to arrest: exists where the facts and circumstances within the officersknowledge and of which they have reasonably trustworthy infoare sufficient in themselves to warrant a man of reasonablecaution in the belief that evidence an offense as been committedby the person to be arrested.

Proabale Cause To Search: exists where the facts and circumstances within the officersknowledge and of which they have reasonably trustworthyinfo are sufficient in themselves to warrant a man ofreasonable caustion in the belief that evidence subject toseizure will be found in the place to be searched.

Spinelli v. U.S.

FACTS: convicted of intent to establish gambling activities.[AGUILAR]: court held the affidavit inadequate because one it failed to st forth any of

the underlying circumstances necessary to enable the magistrateindependently to judge the validity of the informants conclusion that thenarcotics were where he said they were and two the officers did notattempt to support the hearsay claim that their informant was credible.

HERE:we believe that the totality of circumstances approach taken by [ph] paints withto broad a brush. Where as herethe informers tip is a necessary element in afinding of probable cause.

TEST: first: informers tip must be measured against aguilars standardunderlyingcircumstances

Second: can the tip, when certain parts have been corroborated by independent sources, isas trustworthy as a tip which would pass aguilars test without independentcorroboration.

*Veracity and Reliability*

Draper: detailed information that the officer does ind work to corroborate and confirm

Note: Spinelli while not GOOD federal law some states, including Massachusettsstill use this test. Furthermore,

VS: GATES:dont need both veracity and corroboration. Two ind prongs is abandonedby gates.

ILLINOIS v GATES

FACTS: anonymous handwritten letter accusing couple of selling drugs and details abouthow they go about it.

Detective Mader pursued the tip. Found out a person with the name in letter livedat that address and had flights to where the person said the person was going.

Sufficiently unusual behavior, flight to Florida and then driving back within thirtysix hours, corroborated being enough to give probable cause

Majority relies on the fluidity of the totality of circumstances.

The unusual behavior where an informants hearsay statements that can besufficiently verified in order to demonstrate that they would have to be in theknow and thus giving rise to probable cause.

GATES/RULE163: the two pronged tests are better understood as relevantconsiderations in the totality-of-circumstances analysis that traditionallyhas guided probable cause determinations; a deficiency in one may be


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compensated for, in determining the overall reliability of a tip, by astrong showing as the other, or by some other indicia of reliability.

Probable Cause;165 Traditional standard for review of an issuing magistrates

probable-cause determination has been that so long as themagistrate had a substantial basis for concluding that a serachwould uncover evidence of wrongdoing.

ARREST WARRANTS

PAYTON v. NEW YORK

USC 1980

ISSUE:Whether and under what circumstances an officer may enter a suspects home tomake a warrantless arrest.

FACTS: (I) Cops gatherd sufficient evidence to show prob cause. thought to have murdered man 2 days prior.

o Warrantless entry: 6 cops. No one responded to door. Used crow bar. Only found shell casing. Taken for evidence.

PH held that the warrantless and forcible entry was authorized by NY Crim Proheld also that evidence in plain view was properly seized

(II)ma id by vics in 1973/and again 74 was arrested without warrant.o Opened two drawers and found drugs and guns.

HERE: (1) Warrant to enter persons home in order to execute arrest; vs(2) Warrant to enter persons home to search.

Thus, the question is what is the law when a warrant (1) is ussued and whileexecuting this warrant (2) is performed.

CASE DIF: commone law.

WATSON: arrest occurred in public space thus, the property searched and seizethere did not have a reasonable expectation of privacy.

RULE: If there is sufficient evidence of a citizens participation ina felony to persuadea judicial officer hat his arrest is justified, it is constitutionally reasonable torequire him to open his doors to other officers of the law and thus, the fourthamendmentnt puproses, an arrest warrant founded on probable cause implicitlycarries with it the limited authority to enter a dwelling in which the suspect liveswhen there is reason to believe the suspect is there.

DISSENT:

At common law:o 1) absent exigent circumstances entries 2 arrest could be done for felonyo 2)first knock and once denied entry break doors.o 3) daytime 4) and in my view must have reason to believe person home.

NOTES: p186 4: Policy reasons:

1) Cop makes assessment ofprobable cause for executing the arrest of a personsuspected of a crime and because public executes the arrest.

2) Then the neutral judgment of the magistrate determines if further libertyviolations are justified by probable cause (i.e. warrant to enter home 4thamendment violations.


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o Policy purpose no more threat crimes will be committed; prolongeddetention interferes with income relationships;

NOTES*RUlLES:

Whatever procedure a State adopt;o nonadversary proceeding on hearsay and written testimony,decided by a

magistrate of these proceedings

The State must provide a fair and reliable determination of probable cause as a

condition for any significant pretrial restraint of liberty and this determinationmust be made by a d\judicial officer either ber\fore or protm[ly after arrest.

Gerstein Requirement: a jurisdiction must provide probablecasue decisions w/in 48 hours after a warrantless arrest, absentemergengy or crazy circumstances.

Open: remedy if no timely hearing provided.Garner Rule: if unreasonable force is used to execute arrest, even If based onprobable cause, is an unreasonable seizure of the person.

o Unreasonable force: reasonabless standard under FOURTH AM.Absence of hot pursiet there must be at least probable cause to believe that ONEOR MORE of the other factors justifying entry were present

o assessing the risk of dangero gravity of crimeo likelihood suspect has gun.

Stealgald Principle: ARREST not SEARCH warrant third parties residence: 190: Arrest warrant is issued by a magistrate upon showing that

probable cause exists to believe that the subject of the warrant hascommitted an offense, and thus the warrant serves to protect anindividual from an unreasonable seizure.

190: Search warrant is ussued upon showing of probable cause tobelieve that the legitimate obj of a serach is located in a particularplace, and thus protects an indivdiuals interest in the priavacy of

his home and posessions against the unjustified intrusion of cops. RULE: in the absence of exigent circumstances, judicially

untested determinations are not reliable enough to justify asearch of a home for objects in the absence of a searchwarrant.

Exception to [Payton v NY] [Minnesota v. Olson: court held: awarrantless intrusion may be justified by hot pursuit of a fleeing felon, orimmenent destruction of evidence, or the need to prevent a suspects escape,

or risk of danger to cops or others in or outside the dwelling.

in the absence of hot pursuit there must be at least probable cause to believethat one or more of the other factors justifying entry were present

WARRANTS WARRANTS SEARCH SEARCH

1) Based on probable cuase2) Supported by aoth/affirmations magistrate etc.3) 195---warrant particularity:

more generality given to objects that are vague (ex paper clips) if contraband


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4) Execution

LO-JI SALES, INC. v NEW YORK

USC 1979 pp195

FACTS: cop went into adult book store. Watched two videos. Wanted search warrant.

Warrant asked town Justice to join him at execution of warrant Purpose was to allow him to determine if the items were subject to seizure.

o After the serach and seizure the items taken were then compiled and awarrant that had been 2 pages when signed prior to the search was 16pages after the search

HERE: search began when cops and justice entered the premises. At the time the search began there was not sufficient probable cause to pursue a

search beyond the two films specified in the warrant and the cops saw.o The justice by not assessing the objective facts of the situation upon

entrance became a member of the police task.RULE: a warrant authorized by a neutral and detached judicial

officer is a more reliable safeguard against impropersearches than the hurried judgment of a law enforcementofficer engaged in the often competitive enterprise of

ferreting out crime

Wilson v. Arkansas

1995p199

RULE:Fourth Amendment prohibition on unreasonable searches and seizures containsan implicit knock-and-announce rule previously embedded in the common law.

However, this is not to say that every entry must be preceded by ananouncment.

Richards v. Wisconsin1997pp201

FACTS: Wisconsin Sup CT decided that cops are never required to knowck andannounce their presence when executing a search warrant in Felony Druginvestigations.

HERE: per-se exception to the knock and announce rule Watson is NO GOOD because: 1) Overgeneralization. 2) Slipperly Slope Arg if per-se exception here then why not follow it for

there.Thus: It is the duty of the court confronted with the question as to whether

or not a no-knock entry is applicable. To justify no-knock, cops must:

1) have reasonable suspicion that knocking an announcing, underthose particular circumstances,

a) be dangerous/futileb) inhibit investigation i.e. destroying evidence.

o Standard: is less then that of probable causeNOTES/RULES: U.S. v. BANKS: Cops executing search warrant knocked and announced and

wited fifteen to twenty seconds then subsequently used battering ram to enter.o Held: under those circumstances an exigency justified the forcible entry.

Fact that was in shower is irrelevant because what is assessedare the facts known to the cops in judging reasonable waiting time.


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RULE: 15 to 20 seconds is reasonable time for officers to wait afterknocking

Scope of search: After entering to execute warrant extent of the search dependson the circumstances and items specified to be searched.

o Thus, search for stolen ring would permit searching dressers and drawersvs. a search warrant for stolen giant TV would not permit such a search. May seize objects not in described in warrant if cops have

probable cause to believe it is seizable: contraband, fruits, etc.NOTES: come back to page 206 .. AccidentPp209 note 9Michigan v. Summer: bright line rule EXAMMUlller v Mena p209

Kentucky v. King

USC 2011

FACTS: controlled crack purchase. Ran toapt. Entered breezeway. Cops followed could smell marijuana. There was two

apatartments. Radio said right one. Cops chasing did not hear. Cops knowcked heard moving around kicked in door.

PH/TEST: 1) court held police cannot deliberately create the exigent circumstances withthe bad faith intent to avoid warrant requirements and 2) even absent bad faith, the courtconcluded the cops may not rely on exigent cirumstances if it was reasonably forceablethat the investigative tactics employed byISSUE: whether the exigent circumstances rule applies when police, by knocking on

door of a residence and councig presence casue occupants to destroy evidence.HOLD: the conduct of the police prior to entry was entirely lawful and did violate fourth

amdendment. They remand the

REASONING:Police-Created exigency: Police may not rely on the need to prevent destruction of

evidence when that exigency was created ormanufactured by the conduct of the police.

REASONING: Supreme Court rejects the bad faith requirement andreasonableforeseeabilityandprobable cause and time to secure warrantandstandard or good investigative tactics.

RULE:exigent cirumststances applies when the police do not gain entry to premises bymeans of an actual or threatened violation of the Fourth Amendment.

PROF: see 215

NOTES:

1: An exception to the warrant req does not necessarily (or usually) dispense withprobable cause req.2:Warrantless entry of the home (part 1):[King:

Warrantless entry of the home (part 2):


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[Welsh v. Wisconsin: driver suspected driving drunk. Cops enteres his homewithout consent or warrant. Exigency evidence of BAC would be destroyed.

o Held: before govt may invade home, the burden is on the govt to showexigent circumstances [standard: need to overcome presumption ofunreasonabless] One fator to be considered when determining whether any

exigency exists is the gravity of the underlying offense for whichthe arrest is being made.

Warrantless entry of the home (part 3):community caretaking***** EXAM It is a basic principle of Fourth

Amendment law that searches and seizures inside a home without a warrant arepresumaptively unreasonable. One exigency obviating the req of a warrant isneed to assist persons who are seriously injured or threatened with such injury

o Officers announcement of their presence was at least equivalent to a knckon a screen door standard: reason to believe

CHIMEL v CALIFORNIA

USC 1969P221

FACTS: cops arrive with warrant for arrest for burglary. No search warrant Cops knock.Identified themselves; and asked and were welcomed in; waitied ten minutes

beforearrived home

objected to looking around but cops conducted searchPH: held that the search had been justified despite absence of search warrant because it

was incident to a valid arrest.

ISSUE: whether warrantless search of entire house can be justified as incident to arrest.PRECEDENT: [Carroll v US: when person is legally arrested, whatever is found uponthe person or in their control which it is unlawful forthem to have and which may be used to prove thecriminal offense may be seized and heald as evidence.

[AGNELLO v US: the right w/o search warrant contemporaneously to search personslawfully arrested while committing crime and to search the placewhere arrest is made in order to find and take things with the crime asits fruits or as the means by which it was committed is not to bedoubted.

CALI ST RULE:Warrantless search incident to a lawful arrest may generally extend to

the area that is considered to be in the possession or control of theperson arrested.RULES: to dispense with search warrant the burden is on those seeking an exemption

from the requirementI: it is reasonable for arresting cop to search the person for weapons etc.II: it follows thus, that it is also reasable to search and seize evidence within reach.I.E: within immediate control.

[US v KIRSCHENBLATT: after arresting a man in their home, torummage at will among his papers in search ofwhatever will convict the man, is to us


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indistinguishable from what might be doneunder a general warrant;

HOLD:search went beyond the peritioners person and the area from within which hemight have obtained either a weapon or something that could have been used asevidence against him. There is thus, no justification in the absence of a searchwarrant for extending search beyond that specific area.

DISSENT: what about wife being there an letting them search.Or she might destroy evidence

NOTES:Principle of particular justificiationpolice must, whenever practicable, obtain advance judicial approval of searches andseizeures through the warrant procedure and the scope of a serach must be strictly tiedand justified by the circumstances which rendered its initiation permissible.

See 229

2 rationales for search incident to arresto 1: the need to disarm suspect in order to bring into custody.o 2: Need to preserve evidence for later at trial.

US. V ROBINSON

1973 p229FACTS:believed defendant was operating car after revocation of his permit.Cop pulled him over. Then began to search his body.Felt object in left breast pocket. Cop reached in and pulled out crumpled up cig box.

o The ciggarrette box when in the hand of the cop was determined to containsomething other than cigs. Thus, cop then opened up cig pack and found heroin.

RULES: TerryProtective FRISK: can be done without probable cause for weapons.

o DIF searches incident to an arrest and a limited search for weapons.- Cops determination as to how and where to serach the person of a suspect whom

he has arrested is necessarily a quickad hoc judgment which the FourthAmendment does not require to be broken down case by case.

HOLD: In the case of a lawful custodial arrest a full serach of athe person is not only anexception to the warrant requirement of the Fourth Amendment, btu is also areasonable serach under that amendment.

Note 6: because here the officer made a full-custody arrest and was not a routine stop.

having in the course of a lawful serach come upon the crumpled package ofsmokes, he was entitled to inspect it; and when his inspection revealed the heroincapsules, he was entitled to seize them as fruits, insturmentals or contrabandprobabitve of criminal conduct.

CONCURRENCE:if arrest is lawful, the privacy interests rotected pursuant to the 4 thAm is subordinated to a legitimate and overriding governmental concern.

NY v. BELTON

1981

FACTS: Car pulled over. Cop Smelt Weed. No one in car owned car.

He searched car after giving Miranda rights.

Searched passenger compartment.

On back seat in a jacket belonging to BELTON fund cocaine.


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ISSUE: what is the proper scope of a search of the interior of a car incident to lawfulcustodial arrest of its occupants.

HOLD: When a cop has made a lawful custodial arrest of the occupant of an automobile,he may, as a contemporaneous incident of that arrest, serach the passengercompartment of that car.

It thus follows that they may search any containers found within the passengercompartment not encompass the trunk.

NOTE 7 Supreme court extended Belton in Thornton v US. Thornton: cops lawfully arrest D. D was arrested after exiting car for drugs.

oNOTES 4. Search incident to lawful citation:

o Knowles: Cop pulled over car speeding. Issued citation. Then searched.o 1: the need to disarm suspect in order to bring into custody.

InRobinson cour stated that a custodial arrest involves danger toan officer becuaese of extended exposure which follows the takingof a suspect into custody and transporting him to station.

Here: a traffic stop is brief encounter.o

2: Need to preserve evidence for later at trial. Here: once citation issued all the evidence to prosecute had

been obtained. Virginia v Moore: court held that a custodial arrest based on probable cause,

although in violation of state law, is lawful for purposes of the FourthAmendment. ASearch conducted as an incident of such an arrest (i.e. an illegalarrest under state law) is still a lawful arrest for search purposes under the 4th.

ARIZONA v. GANT

2009A.Search Incident to Arrest in an Automobile

1.Arizona v. GantIssue: Usually a warrantless search incident to arrest is okay because person

being arrested could destroy evidence or harm the officer. But here, theguy was already secured in a police car and there was back up at thescene. So no such justification. Exists here because guy already secure. Isa search incident to arrest okay without a warrant when the arrestedperson is secure?

Holding: NO. Does not make sense if the person is already secure to do awarrantless search. Police can search only if person within reachingdistance of the car and they have reason to believe that evidence in thecar will be destroyed.

Dissent: says that prior precedent from Belton should not be overlooked. Thus,all warrantless searches incident to an arrest should be okay. The dissentalso says that reliance by police officers on the rule from Belton oughtalso to be considered. Also says that the Belton court did not reasonpoorly so no justification for changing the rule set out in that case.

WHREN v US

1996p261Subjective standard.

ISSUE: Whether the temporary detention of a motorist when cops have probable cause tobelieve has committed a civil traffic violation is inconsistent with the fourthamendments prohibition against unreasonable seizures unless a reasonable


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officer would have been motivated to stop the car by a desire to enforce thetraffic laws.

FACTS: plainclothes cop patrolling high drug area in unmarked car.

Cops saw car at stop sign with temp plates. Sat for unreasonable amount of time.

Car did U turn. Then took right without signal at unreasonable speed

Cops pull alongside and identified self as cops.o When grabbing license cop observed two large bags of coke in hands.

Then arrested.ARG: in the unique context of civil traffic regulations probable cause is not enough.Defendants argue that allowing these violations creates the temptation to use it as a

means of investigating other things as to which no probable cause exists.

ANALYSIS:Florida v. Wells:an inventory search (the search of property lawfully seized and

detained to ensure it is harmless) must not be used as a ruse for ageneral rummaging in order to find incriminating evidence.

Colorado v. Bertine: in approving an inventory search the court found imp that therehad been no showing that cops, who followed standardprocedures, acted in bad faith, or for the purpose of theirinvestigation.

NY v Burger: upholding administrative inspection (inspection of business to enforceregulatory schemes) because the search did not appear to be a pretext.

Three cases however simply explain that the exemption from the need forprobable cause, which is accorded in those types of searches, is not accorded tosearches that are not made for those purposes.

US v. VILLAMONTE: Court held that an otherwise valid warrantless boarding of avessel by customs was not rendered invalid because the customsofficers were accompanied by state cops and were followinginformants tip. Court flatly rejected idea that an ulterior motivemight serve to strip agents of legal justification.

US v. ROBINSON: Court held that a traffic stop (like here) would not invalid because it

was a mere pretext for a drug search and that a lawful post arrestsearch of the person would not be invalid by the fact that it wasmotivated by safety concern.

Balancing: between govt and individual interest implicated in a traffic stop as here.HOLD: For the run-of-the-mine case, as here, where there is no realistic alternative to

traditional common-law rule that probable cause justifies a search and seizure.

If straight up pretext for racial pull-over. Would have to win under an equalprotection claim. And there the Subjective factors would prve and not statisticalanalysis of disparate impact.

PROF: See Kentucky v. King. Knock and then pretext hearing shit. BUT court did

not find the pretext. However, under Whren was car.RULE: If person committed crime That gives you probable cause. The

motivation, i.e. the subjective intent of the cops, does not matter for thepurposes of the Fourth Amendment.

NO DISSENT

Cars & Containers

CHAMBERS v. MARONEY

1979 P269FACTS:robbery. 2 men with guns. 2 wits earlier saw blue car circling a block away.


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Saw same car parked there later..Store-owner told cops that one of the robbers was wearing a green sweater theother was wearing a trench coat.

o Within hour a car matching the description was stopped two miles away.o One was wearing a green sweater the other a trench coat.

Occupants arrested Car was taken to station.

Search turned up guns in concealed compartment A right hand gloce. Certain cards bearing the name of the gas station

attendment who was robbed earlier.RULES:once an accused is under arrest and in custody, then a serach made at another

place, without a warrant, is not incident to the arrest [Preston v. US]HERE: cops had p.cause to think robbers, carrying guns and fruits of the crime, had fled

the scene in the car they stopped, one of which would be wearing green sweaterother trench coat.

PRECEDENT: Courts have held that cars and other conveyances may be searhedwithout a warrant in circumstances that would not justify the searchwithout a warrant of a house or office, provided that there is probable

cause to believe that the car has articles the officers are entitled to seize.RULE:The right to search and the validity of the seizure are not dependent on the

right to arrest. They are dependent on the reasonable cause the seizing officerhas for belief that the contents of the car offend against the law.

A search warrant is unnecessary where there is probable cause to search a carstopped on the highway

o The car is a moveable thing and the occupants alerted and itscontents may not be found again if warrant must be issued. Thus, an immediate search is constitutional.

Because of the preference for a magistratesjudgment, only theimmobilization of the car should be permitted until a search warrant is

obtained; arguably, only the lesser intrusion is permissible until themagistrate authorizes the greater.

BUT which is greater and which is lesser may depend on the variety ofcircumstances.

Held. Yes. The court first referenced the Carroll case, which held that if an effectivesearch [of a car] is to be made at any time, either the search must be madeimmediately without a warrant or the car itself must be seized and held without awarrant until a warrant is obtained.

The court pointed out that probable clause applied in either circumstance, and sothere is little to choose in terms of practical consequences between an immediate

search without a warrant and the cars immobilization until a warrant is obtained.

Generally, the court held, the level of intrusion under the Fourth Amendment,immediate search vs. seizure in anticipation of a warrant, may depend on avariety of circumstances.

DISSENT: Whether a temporary seizure is a lesser intrusion than warrantless search isitself a debatable question and the answer may depend on a variety ofcircumstances.

I believe that it is clear that a warrantless search involves greater sacrifice ofFourth Amendment values.

PROF: 1) What support do the police have to search the car? In instances where theserach is done pursuant to an incendent to an arrest search whereby the search is done to


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extinguish dangers to the police. But here the search when not done incident to arrest anddoen later it does not matter who is in the car It matters whehther or not there is probablecause to believe that evidence of the crime is within the car.

NOTES 1: What about weighing interest of driver vs law enforcement to decide ifwarrantless car search is reasonable.

DRIVER: interests 1) continuing free travel2) Control over property3) secrecy/privacy of contents.

NOTE 2: Coolidge v. New Hampshire: investigating murder. Cops questioned him;lie detector test; later determined hadsufficient evidence to arrest. Arrested at hishome.

After in custody two cars seized without warrant. One car searched a few days later;

o Then again a year latero Third time five months after that.

Plural HOLD: warrantless car searches unconstitutionalnotwithstanding probable cause.

Defendant already knew he was suspect. Hadopportunity to destroy. And thus, the cops did nothave exigent circumstances and the opportunity forsearch was thus hardly fleeting.

PROF: Collidge is probably not good law anymore.RULE:

Anticipatory Search Warrants: Adds two more requirements to the four(4)search warrant requirements.

o 1. Must show that the evidence is on a sure and irreversible course to itsdestination.

o2. Must provide adequate judicial control of the warrants execution. - An insufficient warrant may be bolstered by supplementary testimony if is recorded.

CALIFORNIA v. CARNEY

1985 P275reduced-expectation of privacy rationale.

ISSUE: whether cops violated 4th amendment when they conducted a warrantless search,based on probable-cause, of a fully mobile home located in a public place.

FACTS: Cops had tip that defendant was exchanging weed for sex.oCops maintained surveillance while youths remained in motor home.oWhen youth left the agents followed.

o Youth told them that defendant had exchanged weed for sex.oAgents went to home. Kicked. Carney stepped out. IDd themselves.oThen without warrant or consent entered home saw weed and stuff.oTook defendant into custody and took possession of home.oSearched mobile home again at station.

RULES:

Automobile exception (Carrol v. US)o While the privacy interest in a car are constitutionally protected the court

held that the mobility of a car justifies a lesser degree of protection ofthose interests Cars unlike homes are subjected to pervasive and continuing govt

regulation and controls. And cops check inspection tickers etc.


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The rule has never been based on whether or not the vehicle is road worthy or not.DISSENT: the general rule should be when in doubt force a warrant. However, the

majority widening the exception here, is thereby eroding the warrantrequirements in general.

Motor homes, by their common use and construction, afford their owners asubstantial and legitimate expectation of privacy when they dwell within. Ibelieve that society is prepared to recognize that the expectation of privacy withinit are not unlike the expectations one has in affixed dwelling, when the motor

home is parked in a location that is removed from a public way.PROF: Case is significant in that it introduces the fact that people have a lessenedexpectation of privacy. Thus, 1) the mobility and 2) lessened expectation ofprivacy both justify searches prior to warrant issued by a magistrate

NOTES 3: another exception AUTOMOBILE INVENTORIES

[South Dakota V. Opperman: Os car was towed, as local ordinances allowed.o Cops, pursuant to standard procedures, unlocked car and interviewed

The inventory was also standard procedure. In glove compartment found weed.

Probable cause approach is helpful when analysis centers upon thereasonableness of routine administrative caretaking functions

Non investigative cop inventories of cars lawfully within their custody are notsubject to the policies underlying the warrant requirement.

o RATIONALE: that upon balance of the interests, drivers: be secure thathis property will not be violated etc. cops complaints against stolen goodsand protection from danger; whether stolen etc.

o HOLD: Routine inventory searches that are done pursuant to standardoperating procedures and do not exceed the scope of their own rules arereasonable.

[Florida v. Wells: court held that cops were not permitted to open locked

suitcase discovered during inventory because the highwaypatrol had no policywith respect to the opening of closed containers during inventory searches]

o Inventory Searches: subjective intent purpose does matter. Just because you are arrested your privacy rights with your car etc.

have not disappeared. Thus, the cops for an inventory searchrequire more of a showing for their search. The inventory serach isnot justified upon the same rationale as searches incident to atrresti.e. searches incident to arrest.

The pre-text does matter when car impounded for violationof local ordinances. When search is conducted withoutrelation to the reason for the arrest then pretext does matter.

US v. CHADWICK

1977 p282Containers in Cars

FACTS: Amtrack peeps saw people load brown footlocker onto train heading to Boston.

Became suspicious ; weight relative to its size. And it was leaking talcum powder.o Talcum powder often used to mask odor of drugs.

Train arrives in Boston with feds awaiting it.


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Did not have warrant for arrest or search. Did have drug dog.o Cops watched defendants as they picked up the case.

Dog signaled after defendants picked up case that there was drugs. Defendants moved 200 pound case into trunk of car.

o Before car was on; before trunk was closed; arrested Case remained in governments control at all times. Case placed in fed building and no risk that it would be removed. also no reason to think drugs or other dangers.

o Cops opened case and luggage without consent nor warrant.PH: The court rejected the states automobile exception (Chambers v. Moroney) statingthat the relationship between the case and the car were merely coincidental and thatthe case was not part of the area within which defendants might gain possession of aweapon or destroy evidence.

P. ARG: Strict reading of 4th stating that people have a lesser expectation of privacy and

societies values in those situations is not as high and thus was reasonable here.RULES: From Katz the 4thprotects people, not places specifically protects people

from unreasonable govt intrusions into their legitimate expectations of privacy.HERE:important 4

thprivacy interests were at stake

By placing personal effects inside a double-locked footlocker, respondents

manifested an expectation that the contents would remain free from publicexamination.

RULES: Factors that diminish privacy aspects of an automobile to not apply to case here Luggage are not open to public view. Not subject to regular scrutiny by officials. Is intended unlike a car, as a repository of personal effects.

o Once cops have reduced luggage or other property not immediatelyassociated with the person of the arrestee to their exclusive control, andthere is no longer any danger that the arrestee might gain access to theproperty to seize a weapon or destroy evidence, a search of that propertyis no longer an incident of the arrest.

DISSENT:

Robinson established that no warrant is required for cops arresting a person to serachtheir clothing and effects.Chambers After custodial arrest of person driving car; car may be impounded andwith probable cause its contents including locked areas examined without warrant.

NOTES4: A warrant is required at the point where the property to be searched comesunder the exlcusive dominion of the police authority. This rule is ifferent fromthe ruling in Robinson whereby after being lawfully arrested the policesearhed the arrestees body, i.e. not property.

NOTE 7:Containers coincidentally in cars Arkansas v. Sanders cops had p. casue to believe sanders would arrive at

airport; with green case; filled with drugs; cops watched him meet second manand place case in taxicabs trunk; and drive away; co Stopped cab a few blocks away; opened trunk; and case without warrant.

Here; cops had probable casue to serach a specific container HOLD: a suitcase taken from car stopped on rd. is not

necessarily attended by less privacy than when taken fromother places. Thus, the reasons for not requiring a warrantfor a car serach do not apply to personal luggage taken bycops from cars.

NOTE 8: Relative 4th

worthiness of different containers


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SandersNot all containers and packages deserve full protection of 4 th.o EX: Plain view

Kit of burglar tools, gun caseHowever, all containers are treated alike and the court has refused to drawdistinctions between worthy and unworthy

NOTE 9:Coincidental Containers

US v. ROSS: cops had p.cause person selling drugs from trunk at X location.

o Searched car/trunk; found brown bag. Opened no warrant found drugs. HOLD:A warrant to serach a car would support a serch of

every part of the car including containers therein which mightcontain the object of the search. Thus, the court reasoned thatthis rule should apply to warrantless car searches.

When cops have p. cause to search a car without a warrantunder the Carrol-Chambers-Carneyline of cases, they mayalso serach any container found during the car search that islarge enough to hold the evidence they are looking for.

CALIFORNIA v. Acevedo

- See 294/295 for rulesFACTS: Police saw place bag in the truck and had probable cause to believe that bag

contained contraband.HELD: On these facts, the police had probable cause to search only the trunk to look for

the paper bag.i.Also, once the police discover the criminal evidence, the search must

STOP! So in Acevedo, once bag found, police cant continuesearching for other evidence.

ii.Police may not search any portion of the vehicle that could not containthe object of the search.

iii.Therefore, police may wait for package to enter car and then search w/owarrant(A)California v. Acevedo (1991, Blackmun)CA police received

call from Hawaii that package was seized containing MJ and thatthey were going to send it to the police. Police sent it to FedExand when the came to pick it up and threw it into his car,

arrested him and searched the trunk and the package.1.The search was permissible and therefore inadvertence is no

longer required(B)Dissent (White, Stevens, Marshall)

b.Carroll v. United States- Court held that Police can search car withoutwarrant because car, unlike home, is mobile.

c.Chambers v. Maroney- Police seize the car so no exigent circumstances.But later search allowed because ct. said that exigent circumstances are tobe determined at the scene of the seizure

Avecedo says that with probable cause you can without a warrant, search forcontainer you have p.cause to believe has drugs. And it does not extend probablecause to the entire car. Based on the search and the circumstances indicatewhether or not the officer still has probable cause to search the entire car, if thecontainer they had probable cause to believe contained drugs is in fact empty.


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HYPO 299 B) you search open paper bag and find no drugs. Probable cause didnot disappear because they did not find what they are looking for and thus, officercan keep looking.

CLASS:Carroll v. United States: A warrantless search of an automobile based upon PC to believe that the

vehicle contained evidence of crime is valid

o Search may be immediate or delayedUnited States v. Ross: Vehicle search exception could include a search of a container inside the

vehicle when the search was supported by PC

CHAMBERS: The majority seems not to be able to decide whether or not a seizureof the car while obtaining a search warrant is or is not greater interms of an intrusion of ones privacy rights as is a search of the carwhereby the cops have probable cause to believe that evidence ofthe crime is to be found within.

4. Plain View and Touch DoctrinesP299Coolidge v. NH: =Plain View DOctrine

Horton v. California

1990

ISSUE: From Coolidge v. NH Whether the warrantless seizure of evidence of crime inplain view is barred by the 4thif discovery of the evidence was notinadvertent?

HOLD: Inadvertence is not a necessary condition.FACTS: armed robbery. Cop found p.cause search home for $ from crime and guns used

Warrant: specified and authorized search for proceeds including specified rings.The magistrate issuing the search warrant did not believe that there was p.casue to

serach for guns and stuff and thus, search for the guns were not included in thesearch warrant.

o During search found machine gun; .38; two stun guns; cuff key; brochurefor club victim was apart of; and clothes id by vic. Cop: testified during search fr rings he was interested in the items

seized as well and thus, not found inadvertently to ring search.RULES: Search was Seizure and plain view

If item in plain view no invasion of privacyo Seizure: of item invades more and into owners possessory interest

Thus, plain view applies to seizures and not searches.Two Limitations:

o 1. Plain View: alone is never sufficient to justify warrantless seizureo 2. Discover: must be inadvertent.

Two Requirements:o 1. Incriminating character must be immediately apparent

Immediately apparent: is essentially probable cause. Coolidge v. NH

o 2. Cop must have lawful right to access the object I) Subj. intent to find item does not invalidate seizure if

Search is confined by the terms of a valid warrant or a validexception to warrant requirement in:

o (a) area and (b) duration II) reason: warrant already needed or valid exception.


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HERE: omitting weapons in the warrant did not enlarge scope of search.HOLD: 1: Items seized were discovered during lawful search authorized valid warrant.

2: They were immediately apparent to be found incriminating3: Cop had p.cause.

DISSENT: No reason absent inconvenience not.

ARIZONA v. HICKS

1987 p305FACTS: Bullet fired through apt; hitting/injuring man. Cops arrive. Enter looking for

gun, shooter and weapons,

Cops find sawed-off rifle and during search fin stocking-cap mask.Cops suspected two gloves were stolen and they took down serial number.While doing this he moved equipment around.

o Cop notified that turntable was stolen in robbery and thus was seized. Later the serials numbers matched stolen goods.

Warrant obtained and seized.RULES: The recording of serial numbers was not a seizure because it did not

meaningfully interfere with the defendants possessory interest. Moving of equipment was a search distinct from lawful objective of entry

oThe officers taking action, unrelated to the objectives of the authorizedintrusion, which exposed concealed portions of the apartment or itscontents, amounts to an invasion of the persons privacy and wasunjustified by the exigent circumstances that validated the entry.

ISSUE: whether the search was reasonable. AND Whether probable cause is required inorder to invoke the plain view doctrine.

HOLD: It is. Because it is an extension of police power to make warrantless seizures inpublic places of such objects as weapons, contrabands i.e. items that areimmediately apparent to be illegal.

ANALYSIS: IF officer had p.cause to suspect stereos stolen would be justified. But officer stated only had reasonable suspicion

oException:Where for example the seizure is minimally intrusive andoperational necessities render it the only practicable means of detectingcertain types of crime.

Even though probable cause would have been necessary for a seizure Search of objects inplain view, HEREcould be sustained on lesser grounds.

DIST: from cursory inspections involves merely looking at what is already exposed toview without disturbing it.

DISSENT POWELL: Sees the majority ruling as making a distinction between lookingat objects in plain view and moving objects.

DISSENT OCONNOR: PROFF See Terry Frisk (exam): The court asks whether the cops must have p.cause before either seizing an

object in plain view or conducting a full-blown search of that object. OConnor would characterize it as whether cops must have p.cause beforeconducting a cursory inspection of an item in plain view.

o Here: the court decides whether a cops reasonable suspicion is sufficientto justify that an item is immediately apparent and thus, whether thisjustifies a cursory examination of an item in plain view.

PROF: Cursory inspection: is only supported by reasonable ruspicion. See terry.

NOTES 2: (exam) Plain Touch:If officerlawfully pats down suspects outer clothingfor weapons and feels an object whose contour or mass makes it


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immediately apparent that the item is contraband, there has been noinvasion of privacy, and if object is immediately recognized ascontraband its warrantless seizure would be justified by the sameconsiderations in the plain view doctrine.

5. CONSENT

SCHNECKLOTH v. BUSTAMONTE

1973 P311EXCEPTION TO WARRANT: Exception to requirements of both warrant and

probable cause is a search that is conducted pursuantto consent.

FACTS: cop stops car; 6 people in it; headlights out; driver no license; asked to get out;then asked for permission to search car.

Sure, go ahead.

Cop: testifies no one was threatened prior to this time and driver helped byopening trunk and glove compartment.

o Found stolen checks under seat from.RULES: When prosecutor seeks to rely on consent to justify lawfulness of search, they

have burden showing that the consent was, in fact, freely and voluntarily given.ISSUE: What must prosecution prove to demonstrate that consent was voluntarily given.

ANALYSIS:I: Court begins with cases re:14th Am confessions for purposes of defining voluntary.

Standard 14thAm: Assess the totality of all the surrounding circumstances-both the characteristics of the accused and details ofinterrogation.

No matter how subtly the coercion is applied, the resulting consent would be nomore than a pretext for the unjustified police intrusion against which the 14 thamendment is directed.

FACTORS:

Subtly coercive police questioningPossible vulnerable subj state of consenting party

o Consenting searches are a far cry from structured atmosphere of a trialwhere assisted by counsel a defendant is informed of their rights.

ISSUE 2: Is consent a waiver of 4th and 14th amendment rights?RULE FOR FAIR CRIM TRIALS:To waive such rights the state must

show an intentional relinquishment or abandonment of a

known right or privilege.

DIF FOR 4th

Amendment: People have a real interest in encouraging consent.o It would be unrealistic to expect that in the informal unstructured context

of a consent search, a cop, upon pain of tainting evidence, could make the

detail req. imposed by Johnson for Fair Crim Trials.HOLD: When the subject of a search is not in custody and the state attempts to justify a

search on the basis of their consent, the 4 th and 14th amendment require that thestate demonstrate that the consent was in fact voluntarily given and not the resultof duress or coercion, express or implied.

Voluntariness: is a question of fact to be determined from all the circumstancesKnowledge: Is not prerequisite to establish voluntariness.DISSENT: if consent means that a person has chosen to forgo their right to exclude cops

from searching it follows that consent cannot be given unless the personknew that they in fact could exclude the police.


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NOTES 7p321 prof exam:States burden cannot be discharged by showing no morethan acquiescence to a claim of lawful authority.

A person may withdraw consent after it is granted unless their pre-withdrawalsearch gives independent grounds to proceed.

NOTE 8. PROF enjoyed examCan give limited consent. i.e you can search for x amount f time in the trunk

o Florida v. wells

GEORGIA v. RANDOLPH

2006 P322FACTS:Defendants wife came back from Canada with child. She complained that he

had taken kid and used cocaine.

Cops come askto search NO; Wife said yes.

o Wife showed cops coke spoon.PH: lower court held wife had power to consent.

Ct AP reversed and sustained by ST Sup CT.ISSUE: Whether an evidentiary seizure is likewise lawful with the permission of one

occupant when the other, who later seeks to suppress the evidence, is present atthe scene and expressly refuses to consent,

Whether a serach with the consent of one co-tenant is good againstanother standing at the door and expressly refusing consent.

HOLD: A physically present co-occupant stated refusal to permit entry prevails,rendering the warrantless serach unreasonable and invalid as to him.

A warrantless search of a shared dwelling for evidence over theexpress refusual of consent by a physically present resident cannotbe justified as reasonable as to him on the basis of consent given tothe police by another resident.

Dissent: takes aim at the terms as to himRATIONALE:Nothing in social custom or its reflection in private law argues for

placing a higher value on delving into private premises to serach forevidence in the face of disputed consent, than on requiring clearjustification before the govt searches private living quarters over aresidents objection.

RULES: Voluntary consent can be given by an individualpossessing authority.

Can be householder against whom evidence is sought

Can be occupant who shares common authority over property.MATLOCK: Arrest in yard of house he lived with a lady. Cops opened

door and lady consented..HELD: Consent of one who possesses common authority over premises

or effects is valid against the absent non-consenting person withwhom that authority is shared.

RATIONALE: Third party authority rests on mutual use and not

property rights.o If it is reasonable to recognize that co-inhabitants have the

right to permit inspection in their own right and the othershave assumed the risk. Shared tenancy is understood to include an

assumption of risk on which cops are entitled to rely


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MINNESOTA v OLSON: Overnight houseguests have a legitimate expectation ofprivacy in their temp rooms because it is unlikely that thehost will admit someone who wants to see or meet with theguest over the objection of the guest.

If it is a domestic dispute with an actual threat the cops can enter if they havegood reason to believe that a threat exists

First: Mutual use is tested based on Whether customary social understanding accords theconsenting tenant authority powerful enough to prevail over co-tenants objection

Second: If defendant (potential) is present and objects and has interest the co tenantsconsent does not suffice for a reasonable search.

CONCURRENCE: Takes aim at bright line rule because Fourth Amendment is aboutreasonabless.

DISSENT: Rule protects the person who is present but not the person taking a siesta.MAJ RULE: Creates an exception to the voluntary consent rule.A third party consent search is unreasonable and therefore constitutionally

impermissible, if the co-occupant against whom evidence is obtained was presentand objected to the entry and search.

Dissent argues that different social expectations exist at different timebased on different circumstances.

Dissent/MATLOCK: assumption of risk is derived from 3rdpartysjoint access or control of shared property.And the court held that shared use ofproperty makes it reasonable to recognizethat any of the co-inhabitants has the right topermit the inspection in his own right.

CLASS:Georgia v. Randolph: underlying theme regards domestic violence.

Prof 206 Illinois v. McArthur : premises can be secured whil warrant is being

obtained.

ILLINOIS v. RODRIQUEZ

1990p337FACTS: cops called to home; female beaten; saidbeat her at a dif apt;

She went w/cops toplace; she used her keys and let them in; arrested him.RULES: Mattockcommon authority rests on mutual use

Burden on state to show common authority.STATE ARG: Even if woman did not have authority to give consent, it suffices to

validate the entry that the law enforcement officers reasonably believedshe did.

PROF:While she didnt have actual authority to consent as no joint access or control ofthe premises after moving out, but the officers REASONABLE BELIEF thatfriend had authority to consent validates the entry.

*Who Can Consent???


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Minor?: Court seems toP 344:

REASONABLE CLAUSE: DIMINISHING ROLES OF WARRANTS & P.CASUE

Terry & Camara: have allowed the 4thamendments sope to extend to govtactivities like housing inspections.

o PRIOR used reasonableness primarily to justify exceptions to warrantFrank v. Maryland: issue of whether the defendants conviction for resisting awarrantless inspection of his home violated the fourth amendment.

o Held that if inspections like the one at issue were subject to full fourthamendment protections the serach would have to satisfy a warrant req. andthus, requiring one for housing inspections would impede the purpose ofpublic health etc.

TERRY v. OHIO

1968 p349FACTS: convicted carrying concealed weapon.

Cop testified he say defendant and had never seen them on his beat before.

Saw them go into store and walk out again. Did this 6+ times.Then the walked off.

Cop thought they were planning robbery.o Went up; told him he was cop; and asked their names they mumbled

Then cop grabbed defendant and patted him down and found gun.ISSUE: whether in all the circumstances of this on the street encounter the defendantsright to personal security was violated by an unreasonable search and seizure. Whether it is always unreasonable for a cop to seize a person and subject him to a

limited serch for weapons unless there is probable cause for an arrest.ARG: differentiation between a search and a frisk and between a stop and a seizure

IF STOP and FRISK give rise to P.Cause cops should be emplored

to then make ARREST and SEARCH of person.RULES:Whenever a cop accosts an individual and restrains them of the freedom towalk away that person has been seized. Seeking to distinguish between stop/arrest and seizure/frisk:

o 1: isolates initial contact stages between cop and person from anyconstitutional scrutiny

HERE must test the conduct by the fourth amendments general proscriptionagainst unreasonable searches and seizures.

FIRST: what were the interests which allegedly justified officialintrusionupon the constitiuonally protected interest of the privateitizen. balancing test from Camara.

To do so the cop must be able to point to specific andarticualabe facts which taken together with rationalinferences from those facts reasonably warrant intrusion

o Assesd from an objective standard: Would the factsavailable to the cop at the moment of the search orseizure warrant a man of reasonable caution in thebelief that the action was appropriate?

GEN RULE: When a cop is justified in believing that the individual whose suspiciousbehavior they are investigating at close range is armed and presentlydangerous to the cop or to others it would be unreasonable to deny the cop


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the power to take necessary steps to determine whether in fact the personhas a gun and to neutralize the threat.

oSearch without a warrant for weapons must be limited to that which is necessary forthe discovery f weapons which might be used to harm cop or others.

RATIONALE:an arrest is a wholly different kind of intrusion upon individual freedomfrom a limited search for weapons and the interests in each are different.

Arrest: interests in laws of society and future interferencewith said individuals freedom whether or not trial or

conviction ultimately followsSearch Guns: is brief as opposed to an arrest in terms of

intrusion upon sanctity of person and for protection.How Court Gets away with Probable Cause Requirement: Dif. Interests

o Search incident to lawful arrest, is justified by any need to prevent thedisappearance or destruction of evidence of crime. VS Terry Frisk

o Frisk is justified based on the present situation in order to protect theofficer and others which thus, must be confined in scope to an intrusionreasonably designed to discover weapons which the officer had reasonablesuspicion to believe the person had and could use to harm him or others.

HOLD: here cop was justified.TAKE-AWAY: Where a police officer observes unusual conduct which leads the officer

to reasonably conclude in light of their experience that criminal activitymay be afoot and that the persons with whom he is dealing may bearmed andpresently dangerous, where in the course of investigatingthis behavior the officer: (1) identifies themselves as a policeman and(2) makes reasonable inquiries and (3) where nothing in the initialstages of the encounter serves to dispel their reasonable fear for his ownothers safety, he is entitled for the protection of themselves and othersin the area to conduct a carefully limited search of the outer clothing fsuch persons in an attempt to discover weapons which might be used toassault them. This search is reasonable under 4th Amendment andany weapons seized may be properly introduced in evidenced.

Concurrling Harlan: IF cop is justified to FRISK he must FIRST have constitutionalgrounds to insist on an encounter i.e to make a forcible stop.

Would make more clear that right to frisk in this case depends uponthe reasonableness of a forcible stop to investigate a suspected crime

Where such a stop is reasonable, however, the right to frisk must beimmediate and automatic if the reason for the stop is as here anarticulable suspicion of a crime.

CONC WHITE:Nothing prevents cops from asking questions but person is not obliged

to answer and not answering is not basis for arrest although it mayalert officer to the need for continued observation

DISSENT DOUGLAS:Majoritys holding gives officers more authority than judge.

CLASS: (1) first there is a seizure of the person in that the person is seized by the officeror in other words the person is denied their liberties to freely leave or goabout their business. After the seizure of the person and based on an officersreasonable suspicion, which must be based on articulable facts thatreasonably lead to the belief that the person is dangerous, the terry frisk or


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quasi-search occurs. The reasonable suspicion must equate to the instrusivenature and extent of the subsequent search.

Do you need reasonable suspicion before the stop occurs or can you stop/askquestions and then develop reasonable suspicion?

Drawing Lines: Terry Seizures VS De Facto Arrests

DUNAWAY v. NY

1979 p367FACTS: robbery March; August jailhouse tip that Defendant did it;Cops not have suf. P.cause forarrest warrantBrought him in anyways. He would have been physically restrained if left.

STATE ARG: The seizure did not amount to an arrest and was thus, permissible becausethe police had reasonable suspicion that Dunaway possessed intimateknowledge about a serious and unsolved crime.

PRECEDENTS:Terry: recognized an exception to the requirement that the 4th amendment

seizures of persons must be based on probable cause.Held that when necessary swift action predicated upon the on-the-spot

observations of an officer on the beat and where the intrusion is lesssevere stop and frisk the court declined to extend the concept of anarrests and the general rule requiring p.casue.

Seizures: so substantially less intrusive than arrests that the genrule rule of p.cause is supplanted by a balancing test.

HERE: State wants to use the Terry Balancing Standard forCustodial InterrogationsANALYSIS:

Here not questioned briefly; taken straight from home to interrogation room.RULE: Application of 4thAmendments requirement of probable cause does not depend

on whether an intrusion of this magnitude is termed an arrest understate law.TAKE-AWAY:The standard to guide officers, who have only a limited time and

expertise to reflect on is to balance the social and individual interestsinvolved in the specific circumstances they confront.

HOLD: When the officers seized the petitioner and transported him to station forinterrogation the cops violated the 4th & 14th amendments because they did sowithout probable cause

DISSENT: The defendant voluntarily accompanied cops to station to answer questions.

Cops did not use physical force Cops did not show authority

DISSENT ISSUE: Whether the cops conduct is objectively coercive orphysically threatening, not on the mere fact that aperson might in some measure feel cowed by thefact that a request was made by an officer.

CLASS: UnderTerry we assess the reasonableness of the seizure and the reasonablesuspicion that the seizure is based on.


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Dissent Cops did not have level of reasonable suspicion that would justify theseizure that occurred (i.e. taking petitioner into custodial interrogation)

When are you allowed to detain?o Prof (exam) says that here the person because the reasonable suspicion

was that he committed a robbery based on an anonymous tip meant thatwhile they could not take him to the officer the officers could, under aTerry balancing analysis, stop the person and question him and preventhim from leaving. Dunaway does have the right to refrain from answering.

Here the Terry requirement of dangerousness is not assessed and is notneeded but what is important is that the officers have reasonable suspicionthus, the level of intrusion into his liberty would most likely enable theofficers to merely stop them on the street. Thus, the correct analysis wouldbe (1) was their a seizure and (2) was the seizure reasonable based on thereasonable suspicion.

NOTESp370#2: What if Dunaway was found on his front lawn and taken to a police cruiser?

# 3:Florida v Royer: $$ for plane ticket; asked 4 ticket and took it without returning.

Took him into interrogation room; got his luggage; searched; found weed.Held: The time the defendant produced the key to his suitcase, thedetention to which he was then subjected was a more seriousintrusion on his personal liberty than is allowable on meresuspicion of criminal acts.

If there were reasons to move the defendant from the public airportspace to a private space; aka security reasons and the like; theymight have lessened the severity of the intrusion due to thecircumstances. BUT nothing indicates that was so.

The state did not mention whether or not there were alternativesi.e. could they have had a dog sniff serach for drugs.

# 4: Pennsylvania v. Mimms: Traffic violation; Stopped; Asked to get out; Saw bulge; Frisked; was a gun.

Held: Upon balancing the competing interests the courtfound that when an officer legally stops a driveron the highway, he may order the driver out ofthe car without further justification. The driver isbeing asked to expose very little more thanalready exposed.

Passengers?On the public interest side ofthe balance the same weightyinterest in officer safety is present regardless of whether it isdriver or passenger On the personal liberty side of the balance

the case for the passenger is stronger than that for the driverbecause while the driver has committed a minor vehicularoffense there is no reason to stop/detain passengers.

Maryland v. Wilson: Court held that because a passenger is inevitablyseized when the driver is seized ordering thepassenger out of the car was also too minor anintrusion to outweigh police safety.

Length of DetentionU.S. v. Sharpe: Court held that a twenty (20) minutedetention of driverfailed to meet terrysrequirement ofbrevity.


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Look at common sense in terms of how long the guyis stopped via Terry:

Appropriate to look if the police diligently pursued ameans of investigation that was likely to confirm or

dispel their suspicions quickly; If there were alternative means available did the

police act unreasonably by failing to pursue them?

Drug agent sees 2 cars, he radios for assistance, stops one, the other keeps drivingbut patrol car eventually stops the other, drug agent cant get someone to comewatch the first guy to go see about the second guy, second guy detained 20 min;

o No rigid time limitation on Terry stops, in evaluating whether aninvestigative detention is unreasonable, common sense and ordinary

human experience must govern- VS Dunaway Court not relying on duration but other facts.

Whether detention is 2 long in duration to justify as an investigative stop: Consider it appropriate to look at whether police diligently pursued

a means of investigation that was likely to confirm or dispel theirsuspicions quickly, during which time it was necessary to detainthe D.

oWhether cops diligently pursued a means of investigation that would leadto confirm or dispel their suspicions quickly Essential question is whether the police acted unreasonably in

failing to recognize or pursue alternatives.

Consent that comes after an unreasonable seizure is not consent.Border Searches

U.S. v. Montoya De Hernandez, p.

balloon swallowing.Issue: Whether detention at border on suspicion of concealing drgs violated 4th Amendment.Holding: The Supreme Court held that the detention of a traveler at the border, beyond the scope

of a routine customs search and inspection, is justified at its inception if customs

agents, considering all the facts surrounding the traveler and her trip, reasonablysuspect that the traveler is smuggling contraband in her alimentary canal; here, thefacts, and their rational inferences, known to the customs officials clearly supported areasonable suspicion that respondent was an alimentary canal smuggler.

U.S. v MENDENHALL

1980 p375EXAM

VOTES:FACTS: Flight land Detriot; Suspicious conduct; Identified as cops; asked for her ID

ID name and Ticket name were different. Reason give she felt like itCop testified she became extremely nervous when he said was narcotics cop.o Returned ID/Ticket; asked her to go to office for more questionso Consented to search Found ticket with third name.

Woman cop arrives tells her about strip search Reveals heroin.

ST ARG: the search was done pursuant to consent and thus was excepted from therequirements both of a warrant and probable cause.

ISSUE 1: Whether conduct before defendants consent to the search was not voluntarilygiven and was the product of actions violative of the 4th amendment.


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RULES:

When a person is seizedo A person is considered seized within the 4th Am when in view of the

totality of circumstances surrounding the incident, a reasonable personwould have believed they were not free to leave. EX: Threatening presence of officers Display of weapon by officer Physical touching of person

Use of language or tone indicating that compliance is a must.HOLD: No seizure occurredANALYSIS: Cops not in uniform; no guns displayed; did not summon but approached.

Voluntariness of respondents response when asked to cooperatebecause her voluntariness does not depend upon her having beeninformed that she could deny.

2 Justices: saw seizure issue irrelevant because consent was given.

PROF:

U.S. v. DRAYTON

Rule The Fourth Amendment does not require police officers to advise bus passengers

of their right not to cooperate and to refuse consent to searches.Facts. Respondents Drayton and Brown were traveling on a passenger bus that wasstopped for a routine search by three police officers. Two positioned themselvesup front; one proceeded down the aisle, engaging the passengers in conversation.According to his testimony,passengers were not required to cooperate. However,he did not inform the passengers of this fact. The respondents were seated next toeach other. The officer informed them, in a voice just loud enough for them tohear, that he was part of an interdiction effort, and asked if they had any bags.When they indicated one above them, he requested permission to check it, whichthey granted. Finding nothing, the officer requested to check Browns person.

Brown granted permission. During the pat down, the officer detected hardpackages similar to those used to transport drugs. Brown was taken into custody.When the officer asked Drayton, Drayton raised his hands about eight inches fromhis legs. The officer found similar hard packages, and took Drayton into custody.Upon further searching, both respondents were found to be carrying sizeableamounts of cocaine.

Issue. [W]hether officers must advise bus passengers during these encounters of theirright not to cooperate.

HOLD. No.Florida v. Bostick: if a reasonable person would feel free to terminate the

encounter, then he or she has not been seized.

A determination of when this is true necessitates a consideration ofall the circumstances surrounding the encounter.

The Supreme Court then held the erred Eleventh Circuit Court of Appeals whenadopting the approach that the officer MUST warn the passengers that they mayrefuse to cooperate in an interdiction search.

HERE:there was no application of force, no intimidating movement, no overwhelmingshow of force, no brandishing of weapons, no blocking of exits, no threat, nocommand, not even an authoritative tone of voice.

The officers badge is not intimidating on its face, as officers wear uniforms, as well

as side-arms.

The officer at the front of the bus did nothing to intimidate passengers.


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The fact only a few passengers have refused to cooperate does not suggest that areasonable person would not feel free to terminate the bus encounter.

DRAYTON ARG: after Brown had been taken into custody no reasonable personwould feel free to terminate the encounter with the officers.

The court held that the arrest of one person does not mean that everyone around himhas been seized by police,, and that if anything, Browns arrest should have put

Drayton on notice of the consequences of continuing the encounter by answering theofficers questions. The search itself, under the circumstances, was voluntary.

Dissent. J. Souter, joined by J. Stevens and J. Ginsburg, focused on the fact that thedriver, after a scheduled stop, took the passengers tickets as they re-boarded, andthen left the bus to allow the officers to search. As such, the respondentsreasonably believed that they had no choice but to consent to a search.

Discussion. In a society based on law, the concept of agreement and consent should begiven a weight and dignity of its own. Police officers act in full accord with thelaw when they ask citizens for consent. It reinforces the rule of law for thecitizen to advise the police of his or her wishes and for the police to act inreliance on that understanding. When this exchange takes place, it dispelsinferences of coercion.

Bostick TEST: would a reasonable person feel free decline the request or to leave the

encounter

P385 : If reasonable person would feel free to decline the officers request orotherwise terminate the encounter and the reasonable person is objected and

presupposes and innocentperson.

California v. Hodariits a stop if theres a show of authority, intimidating, threat, authoritative tone

(stop! Police!)Non-seizure case: issuewhen was the defendant seized?

i.if he was seized, there was no probable causeScalia Majoritydefendant was not seized at the time he threw away the cocaine, so thecocaine was not fruit of illegal seizure (since police had not probablecause to seize Defendant before he tossed away the cocaine)

Seizure means actually bringing Defendant within polices physicalcontrol (therefore Defendant was not seized until arrested/taken intocustody)

To hold otherwise would mean that there is a continuing arrest:during the period of fugitivity

A seizure does not occur when Defendant does not yield to a show offorce

Take Away point: for a show of authority:ii.Application of forceiii.Brandishing weaponiv.Stop-policev.Intimidatingvi.Threatvii.Show of forceviii.Authoritative tone

Inverse Hordari: what if the police yelled halt and the defendant complied?


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ix.no Supreme Court case yet, but lower courts held that there is a 4thAmendment issue

x.Police shouting halt is an order not voluntary, different fromrequest

xi.Submission to a show of authority is a hallmark of a seizureALABAMA v. WHITE

1990 p396

FACTS:Anonymous tip; would leave x location; x time; in x car (taillights); go to y.

All while in possession of about an ounce of coke in brown attach case.o Detectives followed up on tipo Confirmed start locationo Watched it drive to the state location.

Car stopped right before destination. Cop said stopped because suspicion of carrying coke. Asked to search She said he could look

o Found brown bag; respondent gave combo Bag had weed and a little coke.

ANALYSIS:1. Anonymous Tip: Illinois v. Gates abounded two pronged test from Aguilar and

SPinelli in favor of a totality of circumstances however, nothing thatthe veracity and reliability prong were still highly relevant.

HERE:The anonymous tip provides virtually nothing from which one might concludethat the caller is either honest of the information reliable; further the tip providesno indication of the basis for callers predictions regarding the criminal activity.

However, without more for a fourth

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