Criminal Procedure Outline

Terms:Investigate (Cops & Robbers!):

1. Investigation2. Search and seizure3. Interrogation4. Identification procedures5. Arrest

Adjudicate (Bail & Jail):1. Complaint2. (Probable cause) hearing3. First appearance4. Preliminary hearing/grand juries5. Arraignment6. Pretrial Motions7. Trial

Sentencing:1. Sentencing2. Appeal3. Habeas

Recurring Themes:Philosophical: asking why and how we balance questions to figure out what type of system we should have

Deontological thinkers- right or wrong (ex-post Consequentialist thinkers- case-to-case (ex-ante)

ViewsEx-Post-

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

Ex-Ante-

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

Literary: interpreting the Constitution Originalism: intent of the author versus text Living Constitution: Adapt it for today (evolving), terms left vague to be interpreted

Competing Values Privacy v. security Individuality v. crime control State v. federal

4 th Amendment

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“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Two general parts: Reasonableness Clause: Prohibits

o Who is covered: “the people”o What is covered: “persons, houses, papers, and effects”o The nature of the protection: “to be secure…against unreasonable searches and seizures.”

Warrants Clause:o What is required: “probable cause, supported by oath or affirmation”o Form of the warrant itself: “particularly describing the place to be searched, and the

persons or things to be seized.” Does the comma mean that the second clause informs the first? Framer’s reason for the text: to curb the exercise of discretionary authority by officers. What values inspired the Framers in drafting the 4th?

o “Sacred and incommunicable” right to private propertyo Legitimate expectations of privacyo Physical entry of the home is the “chief evil”

Two Theories of the 4A Warrant preference: Warrant clause modifies reasonableness clause. Searches generally

unreasonable unless authorized by a warrant (most-rights protective theory) Middle theory: all searches and seizures require probable cause but necessarily a warrant Reasonableness theory: Warrant clause and reasonableness clause independent. All searches and

seizures just have to be reasonable, as defined on ad hoc basis (least rights-protective)√ Checklist √

1) Was this a search/seizure? (if no, inquiry ends- no constitutional question)2) If yes, was is constitutional? (if yes, inquiry ends)3) If no, what is the remedy?

a. Exclusion of evidenceb. 1983 claimsc.

4) Does D have standing to raise a 4th challenge to the specific item of evidence in question?a. If no evidence is admissibleb. If yes analysis continues

5) Is D among “the people” protected by 4th?6) Did the police activity implicate a “person, house, paper, or effect”?7) Did the police activity constitute a “search” and/or “seizure”?8) Was the search and/or seizure reasonable or unreasonable?

a. Did the police have adequate grounds to conduct the search and/or seizure?i. Probable cause

ii. Reasonable suspicionb. Even if the police acted on the basis of probable cause, did the police obtain a search warrant or

arrest warrant?i. If no Did the police have a valid reason for not obtaining the warrant?

ii. If yes Was the warrant obtained in the proper manner? Was the party issuing the warrant a neutral and detached magistrate? Was the warrant in proper form? Did the Police execute the warrant properly?

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Chapter 1: Persons, houses, papers, and effects Two interpretations: (2) A governmental search that does not impinge upon a “person, house, paper, or effect” is not a

“search” or “seizure” w/in 4th.(3) 4th only prohibits unreasonable searches of persons, houses, papers, and effects. Persons:

o Bodyo Exterior of D’s body (clothing)o Interior of D’s body (blood tested for alcohol)o Conversations (Olmsted)

Houses:o All structures that people commonly use as a residence, whether temporary or long-term.o Includes building attached to the residence and curtilageo Does not apply to open fields (undeveloped areas outside the curtilage)o Offices, stores and other commercial buildings, however there is less expectation of

privacy. Paper and Effects

o Letters, diaries, business recordso Automobiles, luggage, other containerso Less inclusive than “property”

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Olmstead v. United States [1928] Wire Tapping = Search (4A only protects tangible property)[Opinion: Taft]Facts: D used telephones in a home office connected to the homes of associates to coordinate illegal liquor sales.

Fed. prohibition officers intercepted messages on the telephones by inserting wires along the telephone wires (w/o trespassing upon D’s property). Officers listened to conversations to obtain evidence of criminal acts.

Holding: Wire tapping does not amount to a search/ seizure w/in the meaning of 4th bc the evidence was secured by the use of hearing only, NOT entry of the houses or offices of Ds.

One who installs a telephone intends to project his voice to those outside. Wires/messages are not w/in protection of 4th

Must be an official search and seizure of his person/papers/tangible material effects or an actual physical invasion of his house or curtilage to be a seizure.

Comparison to evidence obtained through deception (unethically secured). Policy: if evidence was forbidden society would suffer and criminals would have greater immunity. Exclusion of evidence should be confined to cases where rights under the Constitution would be violated by

admitting it.

[Dissenting: Brandeis][PRIVACY] Gov.’s wire tapping constituted an unreasonable search/seizure in violation of 4th

o Use as evidence of the conversations overheard compelled the Ds to be witnesses against themselves violation of 5th

Subtler and more far-reaching means of invading privacy have become available to the gov. “in the application of a Constitution, our contemplation cannot be only of what has been,

but what may be.” Pg. 10.- alluding to developments in technology Founders believed in the right to be let alone “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-

meaning but without understanding.” Pg. 11. “every unjustifiable intrusion by the government upon the privacy of the individual,

whatever the means employed, must be deemed a violation of the fourth amendment” “The door of a court is not barred because the plaintiff has committed a crime.” Pg. 12 In WA wire tapping is a crime fed. ct. should not permit to continue (“unclean hands”) If gov. becomes lawbreaker breeds contempt for law invites every man to become a law unto himself

invites lawlessness Amicus curiae brief: when lines of two parties are connected at the central office, they were intended for

exclusive use and for exclusive use of the parties. 3rd person violates property rights of bother persons AND the telephone company.

Franks: Brandeis is the champion of privacy and thinks the gov. is coming up w/ various ways to invade privacy. “The most important right is the right to be left alone.”

[Dissenting: Holmes] Two objects of desire:

o Criminals should be detectedo The government should not foster and pay for other crimes when they are the means by which the

evidence is to be obtained Less evil that some criminals escape than that the gov. should play an ignoble part Emphasis: evidence obtained by fed. agents in violation of state law should be inadmissible

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

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

Katz v. United States [1967] Wire Tapping= Search (people not places)[Opinion: Stewart]Facts: FBI agents attached an electronic listening and recording device to the outside of the public telephone booth

from which K placed his calls.Holding: The Government’s activities in electronically listening to and recording K’s words violated the privacy

upon which he justifiably relied while using the telephone booth and thus constituted a “search/seizure” w/in the meaning of 4th.

4th does not necessarily turn on “constitutionally protected area” and there is no general constitutional “right to privacy.”

4th protects people, not places. o “What a person knowingly exposes to the public, even in his own home or office, is

not a subject of 4th Amend. protection.” Pg. 18 K sought to exclude the uninvited ear—shut the door behind him, pays the toll entitled to assume the

words he utters will not be broadcast to the world. Effectively overrules Olmstead Departs from Olmstead: 4th governs the seizure of tangible items AND the recording of oral statements

overheard w/o any technical trespass under local property law. Marks the shift from property to privacy Cautious- 4A is not a general constitutional right of pivacy Franks: moved away from only caring about trespass.

***[Concurring: Harlan] Reasonableness Expectation of Privacy Test Twofold requirement: Does it violate a Constitutional right?

1. Person have exhibited an actual expectation to privacy (subjective)2. The expectation be one that society is prepared to recognize as “reasonable” (objective)

Booth was a temporarily private place whose momentary occupants’ expectations of freedom from intrusion are recognized as reasonable.

[Dissenting: Black] Textual

o Language: conversation is not tangible and cannot be searched/seizedo Framers were aware of eavesdropping and did not use language to outlaw or restrict use of such

evidence. Tapping telephone wires is modern day eavesdropping. Does not believe it is proper for the court to rewrite the Amend. to bring it into harmonies w/ the times

o Court is rewriting 4th

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Oliver v. United States [1984] “Open Fields”[Opinion: Powell]Facts: Two police agents went to O’s farm to investigate reports that marijuana was being raised. Officers drove

past O’s locked gate, “No Trespassing” sign, walked around the gate, and found a field of marijuana a mile from the home. In another case police followed an anonymous tip to T’s house, followed a footpath, found two marijuana patches, obtained a search warrant, and seized the marijuana.

Holding: The government’s intrusion upon open fields is not an “unreasonable search” proscribed by the text of 4th. Not clear whether court is saying there was o search or whether search was not unreasonable “Effects” does not include open fields w/in the meaning of 4th

Factors to assess the degree to which a search infringes upon individual privacy:o Intention of the Framers of 4th

o Uses which the individual has put a location No societal interest in protecting the privacy of open fields activities (cultivation of crops)

o Societal understanding that certain areas deserve the most scrupulous protection from government invasion.

Indiv. may not legitimately demand privacy for activities conducted out of doors in fields, except the area immediately surrounding the home.

Land is open to public in a way the home, office, or commercial structure would not be. Pub. and police may lawfully survey the land from the air

Trespassed on land- “no trespassing sign” Disputes the original idea that 4A protects property Curtilage: warrants 4th protection bc it extends the intimate activity associated w/ the sanctity of a man’s

home. Common law: open fields do not have an expectation of privacy Ad hoc approach would make it difficult for the policeman to discern the scope of his authority and create

danger that constitutional rights would be arbitrarily and inequitably enforced. Correct inquiry: whether the government’s intrusion infringes upon the personal and societal values

protected by 4th, NOT whether the individual chooses to conceal “private” activity. Gov.’s intrusion on an open field is not a “search” bc it is a trespass in common law.

[Dissenting: Marshall, joined by Brennan and Stevens] Bill of rights was designed not to be precise Framers sought to identify fundamental human liberties that

should be protected and not undermined by the changing activities of gov. officials. Landowner’s interest in privacy of his woods/fields is one society is prepared to recognize as reasonable

o Under local law intrusion is criminal trespasso Law recognizes the right to keep strangers off their land

Uses of land is relevant to privacy interest: landowners take solitary walks, conduct agricultural businesses, meet lovers, gather w/ worshippers, and used as a refuge for wildlife.

Claim to privacy is strengthened by the fact that the claimant manifested to others his desire that they keep their distance.

Rule: private land marked in a fashion sufficient to render entry thereon a criminal trespass under the law of the State in which the land lies is protected by 4th proscription of unreasonable searches/seizures.

Majorities rule will cause police officers to make on-the-spot judgments as to how far curtilage extends, and to stay outside the zone.

Franks: freedom of movement—to be on your own and not worry about intrusion

Open fields doctrine:o Entry and exploration of “open fields” does not amount to a search w/in the meaning of the

4th.o Announced prior to Katz, reaffirmed after Katz and Oliver

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o Oliver: people do not have a legitimate expectation of privacy in activities occurring in open fields, even if the activity occurring there could not be observed from the ground except by trespassing in violation of civil or criminal law.

Open fields do not constitute a “search” Framers believe certain “enclaves,” like a house, should be free from governmental

interference. In contrast, open fields do not provide the setting for those intimate activities 4th is intended to shelter from government interference or surveillance.

An expectation of privacy in an open field is never legitimate.o For 4th analysis, must distinguish btw: (1) a house; (2) curtilage to a house; and (3) an open

field.

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Chapter 2: Searches If the police activity does not constitute a search 4th does not apply! Pre-Katz Analysis

o Boyd: the invasion of a man’s indefeasible right of personal security, personal liberty, and private property.

o Physical intrusion—a trespass—into a constitutionally protected areao Olmsted: phone conversations are not protected as effects because they are intangible,

therefore unprotected. The houses and offices are protected only by physical intrusions or trespasses.

Post-Katz Analysiso Buried the trespass doctrineo What a person seeks to preserve as private, even in an area accessible to the public, may be

constitutionally protected.o By shutting the door on the booth and paying the toll, K was entitled to assume his words

would not be broadcast to the world.o “Reasonable expectation of privacy” standard

Individual must exhibit an actual (subjective) expectation to privacy Must prove that the expectations he exhibited is one that society is prepared to

recognize as reasonable, legitimate, or justifiable (one that an ordinary person might possess)

If either prong is lacking not a search Warren court’s “criminal procedure revolution” Objective prong:

o Site or nature of the property inspected 4th protects people, not places

o Extent to which a person has taken measures to keep information, his property, or an activity private

No expectation for what an individual knowingly exposes to the public or is in open view

One who voluntarily conveys info or property to another person “assumes the risk.”o Degree of intrusion

Helicopter constitutes search depending on noise and dust disrupting legitimate activities.

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United States v. White [1971] Informant w/ wiretap=search[Opinion: White]Facts: Gov. informant, J, wore a radio transmitter concealed on his person and transmitted to agents during

conversations w/ W on 4 occasions in J’s home, a restaurant, and J’s car. Conversations were overheard by an agent in a closet in J’s kitchen and by a 2nd agent outside the house w/ radio receiver.

Holding: Recorded conversations w/ an informer are not protected by 4th. 4th does not provide protection to a wrongdoer’s misplaced belief that a person to whom he voluntarily

confides in will not reveal it.o No warrant to search/seize is required

Relies on Hoffa (1966)- “false friend” doctrine- no 4A protection for a “wrongdoers misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.”

Police agent may conceal his connections and write down his conversations with a D for official useo Electronic recording will produce a more reliable rendition of what D said than officer’s memoryo Court will not hold that a D who has no constitutional right to exclude informer’s unaided testimony

has right to exclude a more accurate version of the events in question. No difference btw simultaneous recording w/ electronic equipment on the person or transmitting

conversations elsewhere to other agents monitoring the transmitting frequency. One contemplating illegal activities should realize the risk that companions report to police.

[Dissenting: Douglas] Eavesdropping is not the same as electronic surveillance

o Bill of Rights should not be read to cover only technology of the 18th centuryo Strict Construction: text should be read narrowly—Founders wanted to protect from an all-

powerful government Uncontrolled surveillance will lead to a police state

o Pre-arranged episode of surveillance, no excuse for not seeking a warranto 4th “was designed not to protect criminals but to protect everyone’s privacy.” Pg. 48.

Free discourse (1st value; also 4th, 5th) is not free if there is surveillance

[Dissenting: Harlan] Magnitude of police utilization of this technique: Orwellian society Difference btw relaying information and conspiring to betray and transmit what is said

o Distinction btw 3rd party monitoring and other undercover techniqueso Two assumptions:

There is no greater invasion of privacy in 3rd party situation Uncontrolled consensual surveillance in an electronic age is a tolerable technique of law

enforcement, given the values and goals of our political system Assess the nature of the practice and its likely impact on the individual’s sense of security against the utility

of the conduct as a law enforcement techniqueo Impacts of 3rd party bugging: undermines confidence and security

Monitoring undermines confidence and security w/ one another that is characteristic of individual relationships btw citizens in a free society.

o Fear to make basic social regards Warrants should be necessary.

*Assumption-of-risk analysis of Hoffa—a person does not have a “justifiable and constitutionally protected expectation that a person w/ whom he is conversing will not then or later reveal the conversation to the police (Using Katz: there is no 4th protection bc by speaking, a person knowingly exposes his thoughts to another, and, therefore, the public.)

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*No difference btw a pure false friend case (X converses w/ D and then testifies recollection at trial of the conversation) and the situation in which X uses more reliable technique of recording the conversation (“wired” false friend)

“False Friends”:o A police informant or covert police agent insinuates himself into D’s confidence to get

incriminating evidence.o Pure version: person gathers info and reports to law enforcemento Wired false friend: friend has a hidden transmitter that permits the police to monitor the

conversation.o Not considered a search because of assumption of risko When a person voluntarily speaks to another, the possibility is inherent in the conditions of

human society that the listener is not whom he claims to be.

United States v. Miller [1976] Bank RecordsFacts: In response to informant’s tip, sheriff stopped men and found distillery apparatus and raw material.

Additionally, a warehouse fire uncovered illegal booze distillery. Bureau presented grand jury subpoena to M’s bank records. Bank made records available and did not tell M.

Holding: No 4th A interest in bank records bc 4th does not prohibit use of information revealed to 3rd parties who subsequently reveal the info to government authorities.

Documents are not “private papers,” they are the business records of the bankso No legitimate expectation of privacy in the contents of microfilm

Checks are negotiable instruments of commercial transactions Depositor takes the risk by revealing his information to 3rd party that it will be conveyed to

Gov. Subpoena to a 3rd party to obtain the records of that party does not violate rights of a D, even if a criminal

prosecution is contemplated at that time. Individual assumes the risk

[Dissenting: Brennan] Accused had a reasonable expectation of privacy in his bank statements and records, the voluntary

relinquishment of such by the bank at the request of the sheriff and prosecutor did not constitute a valid consent by the accused illegal search/seizure.

Disclosure of financial affairs is not entirely voluntary bc it would be impossible to participate in economic life of contemporary society w/o a bank account.

Franks: court equates privacy and secrecy . . . if it is not private, then it is not secret.

[Dissenting: Marshall] Bank Secrecy Act requires maintenance of bank customers’ records

o Marshall thinks it is a seizure and unconstitutional bc there is no warrant/probable cause W/o a remedy until it is too late

M does not have standing to contest Gov.’s subpoena to the bank

*A bank customer has no legitimate expectation of privacy in financial information that he “voluntarily conveys” to bank employees in the ordinary course of business. No search occurs, therefore, if the bank hands over the customer’s financial records to the government.

Greenwood v. California [1988] Garbage (no reasonable expectation of privacy)Facts: Officer got complaints from a neighbor and other information pertaining to narcotics trafficking at G’s house.

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

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Holding: Warrantless search/seizure of garbage bags left at the curb outside a house does not violate 4th bc there is no subjective expectation of privacy in the garbage that society accepts as objectively reasonable (Harlan 2-part test from Katz).

Only violates 4th if respondents manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable.

o Respondents exposed their garbage to the public --. Readily accessible to animals, children, scavengers, snoops, and other members of the public. P. 63

o Trash was put outside to convey to a 3rd party, who could have looked through it Police do not have to avert their eyes from evidence of criminal activity that could have been witnessed by

any member of the public. Society as a whole possesses no expectation of privacy w/ regard to garbage left for collection at the side of

a public street. Notice: court does not say “effects” bc Katz got rid of that standard and moved to privacy.

[Dissenting: Brennan, joined by Marshall] Scrutiny of another’s trash is contrary to commonly accepted notions of civilized behavior If respondents had been carrying the trash, it would have been protected.

o Rs deserve no less protection bc G used bags to discard rather than transport his personal effectso Trash can relate intimate details

Reasonableness of G’s expectation: most of society would be incensed to discover a meddler Municipalities reinforce confidence in the integrity of sealed trash containers by only permitting authorized

employees of the town to toucho CA Const. guarantees a right of privacy in trash

Possibility that unwelcome meddlers might open and rummage containers does not negate the expectation of privacy.

o Metaphor: possibility a burglar might come into home does not negate the expectation of privacy G cannot be faulted for leaving trash on curb when a county ordinance commanded him to do so.

o Relinquishing possession or control over an effect ≠ relinquishing privacy expectation in it (Property rights).

The aggregate of things found in an individuals trash reveal intimate details Franks: NOT a question of what people could do . . . i.e. G could have compacted trash and brought it to

dump. Just bc someone could see certain things doesn’t mean someone should be able to see

*Court moves to the objective prong w/o significant discussion of the subjective factor (“respondents did not expect that the contents of their garbage bags would become known to the police or other members of the public.”). Might have a subjective claim, but fails objective bc of animals, children, scavengers. . .

*No reasonable expectation of privacy in garbage NO SEARCH OCCURS

*Court uses two “search” rules:1. Katz and aerial surveillance: 4th does not protect information knowingly exposed to the public2. One cannot have a reasonable expectation of privacy in information voluntarily turned over to others

*Bc private persons might snoop, individuals have no constitutionally recognized reasonable expectation of privacy when and if the police—not private persons—in fact snoop.

Dow Chemical [1986] Aerial Surveillance of a Company[Opinion: Burger]Facts: DC has a 2,000-acre facility w/ covered buildings and manufacturing equipment and piping btw buildings

exposed to visual observation from the air. DC has had elaborate security barring ground-level views and investigates any low-flying flights over the facility but does not conceal all equipment from aerial views bc

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it would be too costly. DC allowed one search by the EPA, but denied the second. EPA employed an aerial photographer to take pictures.

Holding: Open areas of an industrial plant complex are not analogous to the “curtilage” of a dwelling, but are analogous to an open field observable by persons in aircraft lawfully in the public airspace. Therefore, the taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by 4th.

Any person with a plane and camera could have seen it State tort law governing unfair competition does not define limits of 4th

o Gov. took photos to regulate, not compete w/ DCo Only photos taken w/ intent to use trade secrets may be proscribed—no prohibition of photos

taken by a casual passenger on an airline or a company producing maps for its mapmaking purposes.

“Industrial curtilage”:o Gov. has greater latitude to inspect commercial property bc the owner enjoys the property

differently than the sanctity of an individual’s home. Com. Prop. Subject to regulatory inspections.

o EPA employed a conventional camera used in mapmaking, not some unique sensory deviceo Photographs do not reveal intimate details to raise constitutional concernso Enhanced vision does not raise constitutional problems

[Concurring in part and dissenting in part: Powell, Joined by Brennan, Marshall, and Blackmun] Court is retreating from standard that ensured 4th rights as technology expanded the Gov.’s capacity to

intrude into private areas and activities. DC took extensive measures to ensure privacy on ground level DC did everything commercially feasible to protect confidentiality Court repudiates Katz by saying 4th protects DC only from “actual physical entry”

o Physical trespass is irrelevant for 4th analysis, must evaluate reasonable expectation to privacy DC has a reasonable expectation to privacy bc it has taken every feasible step to protect information

o EPA’s conduct intruded on expectation Camera saw more than the eye could see not equitable to casual observation by passengers Court should not evaluate the method of surveillance

*Not a search bc the EPA was not employing some unique sensory device that could penetrate walls of buildings and record conversations. Katz doctrine seems to require a court to consider the nature of the technology used and the nature of the place being observed (commercial property).

Aerial Surveillance:o Aerial surveillance by the gov. of activities w/in the curtilage of a house does not constitute a 4th

search if the surveillance:(1) occurs from public navigable airspace(2) is conducted in a physically nonintrusive manner; and(3) does not reveal intimate activities traditionally connected w/ the use of a home or curtilage.

Florida v. Riley [1989] Aerial view by helicopter[Opinion: White, joined by Chief, Scalia, and Kennedy]Facts: R lived on 5 acres of property w/ greenhouse 10 to 20 ft. behind the mobile home. 2 sides of greenhouse

were enclosed; the other sides were obscured from view by tress, shrubs, and home. Greenhouse was covered by roofing panels, but had 10% of panels missing. Wire fence surrounded area w/ “Do Not Enter” sign. Anonymous tip of marijuana growth, so officers circled twice in a helicopter at 400 ft, saw through roof, obtained a warrant, and found marijuana.

Holding: 4th does not require the police traveling in the public airways to obtain a warrant to observe what is visible to the naked eye.

Property is w/in curtilage

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Court relied Ciraolo where from an aerial 1000ft the court did not find a search, where as here it was from 400ft

Different result if flying as low as 400ft was illegal R could not reasonably have expected the contents of greenhouse were immune from examinations from

navigable airspace bc sides and roof of greenhouse were left partially open.o Private/commercial flight by helicopter is routine

Does not matter that helicopter was at 400 ft.o Would be different if helicopter was flying contrary to law or regulationo Any member of the public could legally fly over R’s property and observe—police officer did no

more Helicopter did not interfere w/ R’s use of greenhouse or other parts of curtilage (no wind, dust, noise,

threat of injury)

[Concurring: O’Connor] Clarifies Ciraolo: court relies too much on compliance w/ FAA regulations whose purpose is to promote air

safety, not to protect 4th.o Ciraolo’s expectation to privacy was unreasonable not bc the airplane was where it had a right to

be, but bc public air travel at 1,000 ft. is a routine part of mod. life and it’s unreasonable for persons on the ground to expect their curtilage will not be observed.

Observations from helicopters ≠ ground-level observations from public road or sidewalkso Cannot cover and enclose curtilage to block aerial views

Relevant inquiry: whether the helicopter was in the pub. airways at an altitude at which members of the public travel w/ sufficient regularity that R’s expectation of privacy from aerial observation was not one that society is prepared to recognize as reasonable.

o Not conclusive that any member of public could legally fly over R’s property at 400 ft. or that police helicopters may often fly at 400 ft.

If the public can generally be expected to travel over residential backyards at an altitude of 400 ft. no reasonable expectation that curtilage is free from such aerial observation

There is considerable public use of airspace at altitudes of 400 ft., so R did not have reasonable expectation that his curtilage was protected from naked-eye aerial observation.

[Dissenting: Brennan, joined by Marshall and Stevens] Does not believe one knowingly exposes an area to the public solely bc a helicopter may legally fly above it.

o Expectation of privacy is defeated if a single member of the public could conceivably position herself in area w/out doing anything illegal

o Ignores Katz: diminishes the amount of privacy and freedom by police surveillance of something that a passerby readily sees.

Just because someone could doesn’t mean the will Helicopter is not like standing on a public road and vantage point is not one that any citizen could readily

share.o Legal right to be in the position of observance does not suffice

Similar to Douglas in White: worried about an oppressive Orwell society

[Notes] “Plain view doctrine”: bc officers merely observed equipment in plain view form a place they were lawfully

entitled to be, they did not conduct a search for 4th purposes (Arizona v. Hicks).

*Dissent is saying it goes against Katz.

*Suggests that the D must provide facts that would support the claim that his expectation of privacy was reasonable.

Surveillance by Helicopters

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o Florida v. Riley: officer observed marijuana plants from 400 ft., which was lawful for helicopter flights.

Held: not a search. D knowingly exposed his greenhouse to the public bc any member of the public could legally have been flying over D’s property in a helicopter at the altitude of 400 ft. and could have observed his greenhouse.

Would have been different if helicopter was flying below law or regulation. Flying overhead did not reveal intimate details connected w/ the use of the

home or curtilage and there was no undue noise, wind, dust, or threat of injury.

Plain View DoctrineArizona v. Hicks- shots fired, Cops lawfully come to investigate. Saw expensive stereo equipment and recorded serial numbers. Cops had to pick up some. No search as to those they didn’t touch.

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United States v. Jacobsen [1984] Search by 3rd Party[Opinion: Stevens]Facts: FedEx employee saw a forklift damaged package, so he opened the package and examined it to look at

contents pursuant to company policy. Inside was a tube, which manager cut open and found zip-locks w/ white powder and notified DEA. Box was put back together, DEA agent reopened and did a field test to determine it was cocaine. Second field test was conducted, package was rewrapped, and DEA got a search warrant for the place to which it was addressed.

Holding: Federal agents did not violate any constitutionally protected 4th privacy interest that had not already been frustrated as the result of private conduct. The possessory interest infringement was de minimis and constitutionally reasonable.

Wrapped parcel is an “effect” w/in 4th (letters and other sealed packages) Reasonableness of invasion of citizen’s privacy must be appraised on the basis of the facts at that time:

o Private carrier independently opened the package and made examination Private character does not violate 4th

Federal agent invasion of R’s privacy:o Removed tube from box, removed plastic bags from tube, and removed trace of powdero Chemical test of powder

When agent saw package, he knew it contained white powder. Contents would not tell him anything more than he had already been told.

o Agent was avoiding risk of flaw in employee’s recollectiono R had no privacy interest bc it remained unsealed and FedEx invited federal agento Removal and visual inspection did not allow agent to learn anything not previously learnedo Therefore, not a search w/in 4th

Agents’ dominion and control was a seizure, but it was reasonableo Privacy interest was already compromisedo FedEx employees already learned a great deal about contentso Package remained unsealedo Apparent the tube contained contraband and little else probable cause

Field test would only disclose whether or not it was coke, would not tell anything moreo “Sniff test” analogy—not a search bc it is less intrusive and only discloses presence or absence of

narcotics.o Did affect R’s possessory interests bc it destroyed a quantity of powder

Must balance the nature and quality of the intrusion on 4th against importance of gov. interests destruction of powder during field test was reasonable (substantial gov. interest bc it was certain substance was contraband)

De minimis impact on property interests

[Concurring in Part III: White] Court consistently rejects distinctions btw containers and packages and says although there is probable

cause to believe container or package has contraband, it does not justify a warrantless examination of its contents.

Fact that a private party has searched has never been used to legitimize gov. conduct Majority’s opinion would allow gov. agents to commit searches they previously would not have—huge

implications on the entire concept of legitimate expectations of privacy

[Dissenting: Brennan, joined by Marshall] Court expands the reach of private-search doctrine beyond its logical bounds

o Difficult to say Rs have no expectation of privacy in a closed container bc a private party previously opened it and viewed its contents.

o Not clear whether contents were readily visible, would remand case to factfind Field test was not a 4th search:

o Officer came upon powder innocently

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o Rs could not have had a reasonable expectation of privacy bc the DEA against were already able to identify it as contraband w/ virtual certainty

o Only destroyed a small amount of powder Rs had no reasonable expectation of privacy in identity of the powder bc the DEA agent could identify w/

“virtual certainty”

*4th does not apply if a private person acts “as an instrument or agent of the Government.”

*Chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy and is not a search.

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Chapter 3: Seizures Unless the police action is a “seizure,” the various restrictions of the 4th Amend. do not apply. If “seizure” To be lawfully seized must have “reasonable suspicion”

o Reasonable? Property: search warrant based on probable cause or a justification for not securing

a warrant Persons: probable cause to make the arrest and if the arrest occurs in the home a

warrant is usually required. Personal seizures: reasonable suspicion.

Property:o Seizure of property invades a person’s possessory interest in that property.o “Tangible” property is seized when there is some meaningful interference w/ an

individual’s possessory interests in the property. Persons:

o Arrest of a person constitutes a seizure of that persono When an officer, by means of physical force or show of authority, terminates or restrains a

person’s freedom of movement through means intentionally applied.o “A reasonable person would have believed that he was not free to leave”

Terry Stopso “Only when the officer, by means of physical force or show of authority, has in some way

restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”o A person is seized when the officer either terminates or restrains the individual’s freedom

of movement through means intentionally applied. Mendenhall “Reasonable Person” Test

o When police-citizen encounters are not clear-cuto Objective component:

“a person has been ‘seized’ w/in the meaning of the 4th Amend. only if, in view or all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”

o Implication: subjective intention of the police officer to forcibly detain a suspect is irrelevant.

“Reasonable Person”o Presupposes an innocent persono Court evaluates on the assumption that the individual has nothing illegal to hide.

California v. Hodari D.o Pursuit-seizure issueo Person has been seized only if a reasonable person would have believed that she was not

free to leave is a necessary but not sufficient condition for seizure through show of authority.

No seizure when cops chases down an individual unless cop uses force (weapons, touching) or individual submits (Hodari)

No seizure when cops board bus and ask to search bags and people so long as consent is voluntary (totality of the circumstances; don’t need to inform that they can refuse)(Drayton)

Traffic Stop is a seizure of both driver and passenger (Brendlin) When ambiguous turn to Medenhall test

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California v. Hodari D [1991] Fruit of Seizure (submission to authority)[Opinion: Scalia]Facts: Officers in street clothes (w/ jackets w/ “Police” embossing on front/back) patrolled high-crime area, saw 4-

5 youths huddled around a car. Youths ran away, officers gave chase, H tossed a small rock (coke), and officer tackled/handcuffed H.

Issue: whether H was “seized” w/in meaning of 4th when he dropped the crack rock. If so drugs were fruit of seizure and evidence is excluded; if not drugs were abandoned and lawfully recovered by police.

Holding: There is no seizure merely by the showing of authority bc the suspect did not yield. He was seized when tackled. Crack rock was abandoned, found on the ground, and admissible.

4th Amend. meaning: grasping or application of physical force w/ lawful authority, even if it’s unsuccessful To be lawfully seized must have “reasonable suspicion” CA concedes that they did not have reasonable suspicion to seize The question is whether he was seized before or after he dropped the rock If before, then coke a fruit of that seizure and must be excluded If after, then drug was abandoned and thus lawfully recovered Seizure in dictionary: “taking possession” Common law arrest: bringing w/in physical control Arrest requires either physical force or where that is absent, submission to the assertion of authority

o No physical force bc H was not touchedo No submission bc H kept on running

If breaks away then not seized Mendenhall test: person is seized w/in meaning of 4th if a reasonable person would have believed he was

not free to leave (Objective test).o “Only if” language, not “whenever”. . . necessary clause, but not sufficient for seizure.

H was seized when he was tackledo Pursuit was not a seizure bc it did not make H halto Coke abandoned while running was not the fruit of a seizure

[Dissenting: Stevens, joined by Marshall] If the officer touched H before he dropped rock, even if he did not subdue him, an arrest would have

occurred Common-law distinction btw arrest and attempted arrest

o Unlawful to take a presumptively innocent person into custody Katz and Terry reject the notion that common law of “arrest” defines the limits of the term “seizure” in 4th. Mendenhall: “reasonable person” standard keeps w/ 4th case law Court concludes the timing of the seizure is governed by the citizen’s reaction, rather than officer’s conduct

o Interests would be better served w/ adherence to a standard that allows police to determine in advance 4th implications, not at which moment there was a “submission”

o Holding leads to coercive and intimidating behavior to frighten citizens into surrendering whatever privacy rights they still have

Time interval btw officer’s show of authority and complete submission by the citizen—officer can order person to “freeze,” w/out reasonable suspicion of wrongdoing in hope that during the pursuit the citizen’s response will give police a legitimate basis to seize the individual.

*Changed Terry-Mendenhall standard for pursuit-seizure—person has been seized only if, not whenever a reasonable person would have believe that she was not free to leave. T-M test states a necessary, but not a sufficient, condition for seizure effected through “a show of authority.”

*Two ways a police officer can seize a person: use of physical force or show of authority. Not enough for policeman to say “Stop, in the name of the law!” A seizure requires either physical force . . . or, where that is absent, submission to the assertion of authority.

*SUBMISSION TO AUTHORITY = SEIZURE

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United States v. Drayton [2002] Consent to search on bus[Opinion: Kennedy]Facts: 3 officers in plain clothes went onto bus during a scheduled stop as part of a routine drug and weapons

interdiction effort. Officer went up to Rs, showed a badge, asked to search luggage, completed search w/ permission, and found no contraband. Officer noticed Rs were wearing baggy pants and heavy jackets in the warm weather, which indicated concealing weapons/narcotics in officer’s experience. Asked to check person, Rs consented and officer found drugs in legs. Officer did not inform Rs of their right to refuse to cooperate.

Issue: Whether officers must advise bus passengers during encounters of their right not to cooperate.Holding: Totality of the circumstances must control. In this case there was no search/seizure and the consent was

voluntary, so the searches were reasonable. Bostich allowed cops to approach bus passengers and ask random q’s so long as reasonable person felt they

were free to go Officers may ask questions, ask for I.D., and request consent to search luggage w/o individualized suspicion

as long as they do not use coercive means. If a reasonable person would feel free to terminate encounter, he/she has not been seized Proper inquiry: whether a reasonable person would feel free to decline the officers’ requests or otherwise

terminate the encountero Police did not seize respondents when the boarded the bus and began questioning passengers

No reason to believe passengers were req’d to answer officers’ question No touching weapon or intimidating movements Aisle was free for exit Spoke in a polite, quiet voice If it was on the street would have been constitutional, fact that it was on a bus does not

make it illegal Voluntariness: officers asked for consent to search luggage and persons

o Totality of the circumstance: request permission, consent was voluntary searches were reasonable

[Dissenting: Souter, joined by Stevens and Ginsburg] Officers took control of the passenger compartment

Reasonable inference was that the “interdiction” was not a consensual exercise but one the police would carry out whatever the circumstances. Police preferred “cooperation” but would not let the lack of it stand in their way– the scene was one of obligatory participation, no reasonable person would think free to ignore police altogether.

o Narrow alley analogy – 3 cops surrounding and aisle is only 15 inches wideo Cops controlled entire passenger compartment – Majority rejects since bus

To meet the Bostick Test of whether a person may feel free to decline police interaction, requires more than cops to request your compliance in quiet tone of voice

*When police question an individual about suspected criminal activity, brief questioning in a public place by itself does not constitute a seizure. Law enforcement officers do not violate 4th prohibition of unreasonable seizures by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen.

*Police do not need individualized suspicion as long as they do not induce cooperation by coercive means.

*Fact that an officer is uniformed or not and/or visibly armed or not carries little weight in the “seizure” analysis in the bus-sweep context.

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Brendlin v. California [2007] Seizure of a passenger in a car[Opinion: Souter]Facts: Officers saw a car w/ expired registration tags, phoned dispatcher, and learned renewal was being

processed. Later officers saw the car was legal through Nov., but pulled it over to verify permit matched the vehicle. Officer recognized passenger, B, recalled he was parole violator w/ outstanding arrest warrant, and called reinforcements. B opened and closed the door. Officer ordered B out of the car at gunpoint, declared him under arrest, searched him, and found syringe cap. Patdown search of driver found syringes and plastic bag of drugs, so she was also formally arrested. Officers searched car and found tubing, scale, and other meth stuff. B argued officers lacked probably cause/reasonable suspicion to make traffic stop.

Issue: When a police officer makes a traffic stop, is the passenger of the car seized w/in the meaning of 4th?Holding: Yes, passenger is seized as well and so may challenge the constitutionality of the stop.

Person seized when the officer by physical force or show of authority restrains his freedom of movement.o Unintended person may be the object of the detention as long as detention is willful and not the

consequence of an unknowing act.o Must be actual submission

When ambiguous turn to Medenhall test Seizure occurred when car came to a halt Whether a reasonable person in B’s position when the car stopped would have believed himself free to

“terminate the encounter” b/w police and himself.o “We think that in these circumstances any reasonable passenger would have understood

the police officers to be exercising control to the point that no one in the car was free to depart w/out police permission.” Pg. 123

DRAYTON ARGUMENT! This case is a CAR—Drayton was a BUS

o Intrusion on “privacy and personal security” does not distinguish btw passenger/driver Franks: traffic stop curtails a passenger bc it is hard to leave.

Chapter 4: Probable CauseSantiago 21

Forth Amendment: “Probable Cause” Appears in the warrant clause Balances competing needs to safeguard citizens from rash and unreasonable interferences w/ privacy and

from unfounded charges of crime while at the same time giving fair leeway for enforcing the law in the community’s protection.

Gen. Const. principles:o Text of 4th provides that arrest and search warrants may only be issued if supported by probable

cause.o All arrests require probable causeo Probable cause is the default position for searches and seizures of property.

Exists when the facts and circumstances w/in an officer’s personal knowledge, and of which he has reasonably trustworthy information, are sufficient in themselves to warrant a person of reasonable caution in the belief that:

o In the case of an arrest, an offense has been committed and the person to be arrested committed it; and

o In the case of a search, a specifically described item subject to seizure will be found in the place to be searched.

Objective concepto However, in determining what a “person of reasonable caution” would believe, the court takes into

account the expertise of the officer. Probable cause warrant

o If no warrant, then court is called on to determine whether officer’s actions were reasonable. Whren v. United States: subjective intentions play no role in ordinary, probable-cause analysis. Informants: must evaluate the credibility of the source

o Gates Totality of the Circumstances test Replaced Aguilar-Spinelli Anonymous letter that was very specific Magistrate must conduct a balanced assessment of the relative weights of all the various

indicia of reliability and unreliability attending an informant’s tip. Probable cause is a fluid concept

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Brinegar v. United States [1949] PC for a search defined[Opinion: Rutledge]Facts: Investigator saw B drive by in a car he recognized and thought it looked “heavily loaded.” B sped up as he

drove by. Officers gave chase, overtook him, and crowded his car to the side of the road. Officers asked if B had liquor in the car and B said “Not too much” and later admitted he had 12 cases. Officers placed B under arrest and seized liquor.

Holding: Agent had good ground for believing B was engaged in illicit liquor running/dealing evidence is admissible on the issue of probable cause. Probable cause exists where the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.

Carroll: under 4th a valid search of a vehicle moving on a public highway may be had w/out a warrant, but only if probable cause for the search exists.

o Similar to Carroll: automobile moving on a public highway, w/out warrant officers patrolling highway, officers recognize the driver and the car, and driver was heading in direction from a known source of liquor supply toward a probable market.

o Different from Carroll: C offered to sell liquor to agents through direct conversations, this case is observation and hearsay; C in Detroit, a known center for illegal importation and distribution, here OK illegal market known to officer.

Officer had personal knowledge from direct observation that B used MO as a source of supply on other occasions.

o Joplin, MO was a ready convenient and probable place for persons to violate OK law.o Officer personally observed B’s use of liquor dispensing est. in Joplin (Direct evidence)o OK was a “dry” state, MO was “wet” probability B was using highway for forbidden

transportation.o MOST IMPORTANT: Officer observed B’s recent activities established that he was so engaged—

loading liquor 6 months prior to search, arrested B for same crime. Probable causes exists when there is reasonable ground for the belief of guilt

o Allows officers to do their job, but leaves room for the mistakes of reasonable men. Not suspicion! It was a car, not a home or any other place of privacy

[Concurring: Burton] Earlier events justified agents’ steps taken and imposed a positive duty to investigate further to discover or

interrupt crime and prevent some or all of its damaging consequences.

Brinegar [Dissenting: Jackson] 4th freedoms are indispensible, when they are taken away it cowers the population and puts terror in every

heart.o Only flagrant abuses come to the attention of the courts bc when officers find nothing incriminating,

there is no redress.o Diff. from other rights bc there is no way for individual to invoke advance protection (injunction)

Automobile is an “effect” and w/in 4th

o Gravity of the offense: few bottles of bourbon in a car does not have the same reasonableness for a search as looking for a kidnapped child.

o Carroll gives blanket authority to officers to stop and search cars on suspiciono Drawing upon his experience prosecuting Nazi Germany—protections differentiate an open society

from a totalitarian one. No probable cause up to the time the car was put off the road and stopped.

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Draper v. United States [1959] PC w/ Informant[Opinion: Whittaker]Facts: Officer had 29 years experience and paid H as a “special employee” for six months to give info about

violations of narcotics laws. H said D was peddling narcs, would be @ train station morning of Sept. 8th or 9th. H described D’s clothing, said he would be carrying a tan zipper bag, and that he would walk real fast. On 9th officer saw person fitting description, stopped and arrested him, and searched his person to find two heroin envelopes and a syringe.

Holding: Knowledge of the related facts and circumstances gave officer “probable cause” w/in meaning of 4th to believe D had committed or was committing a violation of narcotic laws.

Officer had probable cause and reasonable grounds to believe D was violating narc laws, which justify his arrest w/o a warrant.

o H’s info was hearsay, but he was employed for that purpose and was accurate/reliable in the past Officer would have been neglectful not to pursue it.

o When man fit description info was verified, “reasonable grounds” to believe the remaining unverified info was true (D would have heroin)

Probable cause is about probabilities (Brinegar)

[Dissenting: Douglas] Arrest made on the mere word of an informer violated the 4th—if arrest is made w/out a warrant, the

offense must be committed in the presence of the officer OR there must be “reasonable grounds” to believe the person has committed/is committing a violation of the narcs law.

o None of this evidence could have gone to a magistrateo Officers did not know the grounds which the informer based his conclusion

Officer must act on some evidence known to himo Even the guilty may not be implicated on suspicion alone

“A search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success.” Pg. 144.

Maryland v. Pringle [2003] PC of an arrest[Opinion: Rehnquist]Facts: Car stopped for speeding. When driver went into glove box for registration, officer observed a large amt of

rolled up $. Driver consented to a search of the vehicle and officer found cash in the glove compartment and coke btw armrest and back seat. 3 men in car denied ownership, so the officer arrested all of them. P waived Miranda rights and gave oral/written confession that the coke belonged to him and he intended to sell the coke for sex. P also claimed other occupants did not know about drugs.

Holding: Officer had probable cause to believe that P had committed crime, therefore, arrest was consistent w/ 4th and 14th.

Probable cause to arrest an individual examine the events leading up to the arrest and decide “whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to” probable cause.”

o Reasonable inference that all three occupants had knowledge of and exercised dominion and control over the coke.

o Reasonable officer could conclude there was probable cause to believe P committed crime, either solely or jointly.

o Car passenger is often engaged in a common enterprise w/ the driver, having the same interest in concealing any wrongdoing

Guilty by association This case reasonable for an officer to infer a common enterprise among the three men based on quantity

of drugs and cash indicating the likelihood of drug dealing.

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Spinelli v. United States (1969) – Aguilar-Spinelli Test (superseded by Gates) Facts: Man convicted of traveling for the purposes of conducting gambling operations argues warrant for his arrest lacked probable cause.Holding: Magistrate must be able to make an independent determination there was probable cause to issue a warrant.

Test for determining whether or not sufficient evidence presented to magistrate to support a showing of PC:1. Veracity (truthfulness) prong: Informant is reliable and credible2. Basis of information: Underlying circumstances relied on by the person providing the information

(access to information, not just repeating rumors)

Illinois v. Gates [1983] Totality-of-circumstances for PC[Opinion: Rehnquist]Facts: Anonymous handwritten letter to police described a couple who fly/drive to FL, loads a car w/ drugs, bring

the car back to IL, and have never worked. Officer pursued tip, found plane and hotel reservations, and obtained a search warrant based on corroborated evidence.

Holding: Abandons the two-pronged test of Aguilar-Spinelli and reaffirms the totality-of-the-circumstances analysis for probable cause determinations.

Totality-of-the-circumstances approach to probable causeo Allows for a deficiency in one prong to be compensated for to determine the overall reliability of a

tip Rejects Aguillar-Spinelli bc it is too rigid and impede the task of law enforcement

o Does not leave room for the anonymous citizen informant. Magistrate must make a practical, common-sense decision whether, given all the circumstances set forth in

the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay info, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

o Reviewing court: ensure magistrate had a “substantial basis” for concluding probable cause existed.o Flexible, common-sense standard, which better serves 4th

TOTC values corroboration of details by independent police worko This case: fact that letter was anonymous became less significant when officer investigated and

corroborated.

[Concurring: White] Agrees with upholding warrant, but uses Aguilar-Spinelli, not TOTC

[Dissenting: Brennan, joined by Marshall] Warrant is invalid under new TOTC test Aguilar and Spinelli dealt w/ known informants. Anonymous informants are neither presumptively reliable

nor is there any basis for assuming the info was obtained in a reliable way.o If we do not accept conclusory statements from police, how is there any rational basis to do so from

anonymous informants? Conceivable that police corroboration might est. reliability for Aguilar’s veracity prong and self-verifying

detail for Spinelli.o A-S provides structure and guards against attendant intrusions based on unreliable info.

Fear that TOTC may eviscerate probable cause.

[Dissent: Stevens] Discrepancies btw informant’s predictions and the facts known to officer

o Cast doubt on informant’s hypothesiso Made G’s conduct seem less unusualo Undermines the reasonableness of relying on an anonymous letter for making a forcible entry into a

private home. Subsequent events may not be considered in evaluating the warrant No one knows who the informant in this case was, or what motivated him/her to write the note

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Corroboration was ordinary innocent activity

Chapter 5: Warrants All warrants require probable cause Supported by oath or affirmation

o In front of a neutral and detached magistrate “Particularity” describing:

o “Place to be searched” Officer executing the warrant can identify it w/ reasonable effort.

o “Persons or things to be seized” Primarily relates to arrest warrants (the seizure of a person) Assures that the magistrate approves the scope of the search and the person whose

property is being searched can also ascertain the scope.o Required to avoid abuses exemplified by the general warrants and writs of assistance used in

English and colonial common law.o Warrant w/out particularity permits police officers too much discretion in its execution and

undercuts the probable cause requirement.Groh v. Ramirez [2004] Invalid Warrant- no particularity[Opinion: Stevens]Facts: Concerned citizen told G, a special agent, that R had weapons. G applied for search warrant, describing

weapons, and gave an affidavit. Magistrate signed warrant form, but warrant failed to identify the items G could seize. G searched house and gave Mrs. R a copy of warrant. G faxed R’s attorney a copy of the application that listed items to be seized.

Holding: (1) A search conducted pursuant to a warrant that fails to conform to the particularity requirement of 4th is unconstitutional; (2) Officer not entitled to qualified immunity.

Warrant was plainly invalid, did not meet requirement of particularly describing the persons or things to be seized.

Fact that application adequately described the “things to be seized” does not save the warrant from its facial invalidity.

o Functionality of 4th not necessarily met by other documentso Court may construe a warrant w/ reference to a supporting application or affidavit if the warrant

uses appropriate words of incorporation and if the supporting document accompanies the warrant. This case it did not happen

Warrant did not describe the items to be seized at all, therefore, not “reasonable” under 4th Absent exigent circumstances, a warrantless entry to search for weapons or contraband is unconstitutional W/out items to be searched, no written assurance that the Magistrate actually found PC to search for and

seize every item in the affidavit. A particular warrant assures the individual of the lawful authority of the officer, his need to search, and the

limits of his power to search. It is up to the officers to make sure the warrant is okay

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

[Dissenting: Thomas, joined by Scalia] Neither the warrant clause and unreasonableness clause explicitly requires a warrant. Defective warrant is different than a “warrantless search”

o Ask whether the search was unreasonable it was not Different than a warrantless search bc the search still has the benefit of a determination by a neutral

magistrate that there is probable cause to search a particular place and seize particular items. Search was not unreasonable Constitutional

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

G is entitled to qualified immunity

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

Payton v. New York [1980] Warrantless arrest in the home[Opinion: Stevens]Facts: After investigating for two days, officers had enough probable cause to believe P murdered a man. 6 officers

went to P’s apartment w/out a warrant, knocked @ door, used crowbars to enter the apartment, and found and seized a casing in plain view. P later surrendered to police, was indicted for murder, and moved to suppress the evidence.

Holding: Absent exigent circumstances, warrantless arrests in the home are unconstitutional. Absent exigent circumstances, a warrantless entry to search for weapons/contraband is unconstitutional

even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found w/in.

o Interest in preserving the privacy/sanctity of the home Watson Court: (1) Warrantless arrest in a public place is valid if the arresting officer had probable cause to

believe the suspect is a felon, (2) Consensus among the States adhering to that well-settled common-law rule; and (c) expression of the judgment of Congress that such an arrest is “reasonable.”

o No direct authority and tenet that “a man’s house is his castle” strongly suggests that the prevailing practice was not to make such arrests

o Decline during the last decade in # of states permitting warrantless entries for arrest, virtually all state courts have held warrantless entries into the home to arrest is invalid absent exigent circumstances.

[Dissenting: White, joined by Chief Justice and Rehnquist] Common law restrictions on home arrests provide protections for privacy interests w/ the home:

o Only for felonyo Officers must knock and announce their presenceo Must be done during the daytimeo Must be stringent probable cause (arrestee committed a crime and is present @ time of entry)

Officers would not use warrantless arrest entries as pretext to justify an otherwise invalid warrantless search bc warrantless arrest entry would rarely be as complete as one w/ a search warrant.

o Police would not want to risk losing valuable evidence through a pretextual arrest entry, rather than applying to a magistrate for a search warrant.

Simple rule: after knocking and announcing their presence, police may enter the home to make a daytime arrest w/out a warrant when there is probable cause to believe that the person to be arrested committed a felony and is present in the house.

Steagald v. United States [1981] Search of home w/ arrest warrant[Opinion: Marshall]Facts: Confidential informant told DEA he might be able to find L, a fugitive wanted on drug charges, and gave

number where L could be located. DEA contacted Telephone Co. to get the address and found two men standing outside the house (one was S). Agents searched house even though L was not home and saw what they believed to be coke. Officer obtained a search warrant and conducted a 2nd and 3rd search, uncovering coke. S was the owner of the home and was convicted on the basis of evidence uncovered during a search of his residence for L.

Holding: An arrest warrant is inadequate to protect 4th interests of persons not named in the warrant when their homes are searched w/out their consent and in the absence of extigent circumstances.

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Arrest warrant: issued by a magistrate upon a showing that probable cause exists to believe the subject of the warrant has committed an offense; protects an individual from an unreasonable seizure.

Search warrant: issued upon a showing of probable cause to believe that the legitimate object of a search is located in a particular place, and therefore safeguards an individual’s interest in the privacy of his home/possessions against the unjustified intrusion of police.

Case depends upon what the warrant authorized the agents to do.o Agents entered the home of a 3rd person, which was never subjected to the detached scrutiny of a

judicial officer.o When search of the home is for a person, rather than an object there is the same standard

Absent exigent circumstances, judicially untested determinations are not reliable enough to justify an entry into a person’s home to arrest him w/o a warrant, or a search of a home for objects in the absence of a search warrant.

Potential for abuse—police could search the homes of all the individual’s friends Search warrant requirement will not significantly impede law enforcement efforts

o Necessary situations are few bc arrest warrant will suffice to enter a suspect’s own residence to effect his arrest.

o If probable cause no warrant required to apprehend a suspected felon in a public place Subject of arrest warrant can be seized before entering/leaving 3rd party’s home

o Exigent-circumstances doctrine: limits situations where a search warrant is neededo Inconvenience incurred by the police is not significant.

Protects right of presumptively innocent people to be secure in their homes from unjustified, forcible intrusions by Gov.

[Dissenting: Rehnquist, joined by White] Problem of mobility of the fugitive Interference w/ 3rd party’s privacy interests is not significant

o Not a general search, but a specific one for the subject of the arrest warranto Coke was in plain view during a “sweep search”

“Reasonableness” standard does not require a separate search warrant. 3rd party dwelling can be considered a “home” after a few days of suspect living in it. Franks: arrest warrant for one person does not mean a search warrant for another.

*** Schrödinger's cat- in situations of uncertainties, we don’t know until we actbefore we act we don’t know if the suspect is guiltybefore searching or seizing we don’t know the outcome

“A search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success.” Pg. 144. Draper- Dissent

Terry- case of first impressionso Cops view suspicious activity and stop and frisk without knowing what the would

findo Was the stop justified at its inception

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Chapter 6: Searches and Seizures Without Probable Cause Default is supposed to be probable cause but reality is “reasonableness”

o Degree of intrusion vs. gravity of investigated offense Exceptions to probable cause

o Terry Stopso Special needso Consent

A. Terry Stops Not a full stopjust a mere inconvenience (no seizure) Test is REASONABLENESS

o Determined by a balancing of government and citizens interest Citizen interest- right of privacy, right to not be harassed/profiled Government interest- crime prevention and cop safety

Significant diminution in the role of the Warrant Clause in 4th

Move by SC away from the proposition that warrantless searches are per se unreasonable, to the view that the appropriate test “is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.”

Searches/seizures can vary in their intrusivenesso Police-citizen on-the-street encounters that do not involve arrests or full-blown searches come

w/in 4th but are considered lawful despite the absence of a warrant or probable cause. Police may conduct searches on less than “probable cause” and instead on “reasonable suspicion” For the first time, Court stated that a person can be “seized” short of being arrested (4th is implicated)

o “Seizure” occurs when a police officer accosts and individual and restrains his freedom to walk away.

o Only when the officer by means of physical force or show of authority, has in some way restrained the liberty of a citizen has a “seizure” occurred.

Warrant Clause not necessary to a stop-and-frisk—based on “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.”

o Whether the officer’s action was justified as its inception, and whether it was reasonably related in scope to the circumstances that justified the interference in the first place.

Balancing the need to search or seize against the invasion which the search or seizure entails.

When do Terry problems arise? When police don’t want to make an arrest; just want to briefly detain When officers are out patrolling rather than investigating.

What’s the general rule for Terry searches? When does the right arise? Right to stop arises (seizure): (1) when officer observes unusual activity making him think criminal activity is

going on. He can briefly detain suspect to make inquiries. (2) Reasonable suspicion based on obj. facts that the indiv. is involved in criminal activity (PC not req’d)

Protective Frisk (search): Once officer conducts a stop, may conduct a carefully limited search of outer clothing of suspect to discover weapons.

o Limited “frisk” or “pat down” is a reasonable search. o Any weapons seized may be admitted as evidence.

Vehicle stop : also may apply to allow officers to stop a car. Suspect & passengers req’d to leave car. Once officer conducts justified ‘stop’ of car, may also req. passengers/drivers to leave car if it’s a legitimate safety measure.

Three types of encounters: Conversation : (no stop) no justification req’d Stop (but not arrest) reasonable suspicion necessary Arrest PC necessary

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What constitutes a stop? Unclear from Terry and other cases what interference constitutes a stop under the 4th But for an investigative stop, must have reasonable suspicion (lower standard than PC)

Terry v. Ohio Stop: Brief stop & frisk of a person whose behavior an officer reasonably considers suspicious &

dangerous. Test: Whether a reasonably prudent man in circumstances would be warranted in the belief that his safety

or that of others is in danger. Reasonable Suspicion: Police routinely engage in activity that does not reach the level of full-scale

intrusion req’ing PC; lesser intrusions range from conversations with people, routine citizen stops & brief traffic stops in order to question.

Officers observation of suspicious activity + reason to believe suspect is armed and dangerous= Constitutional search and seizure

What is the crux of this issue? Officer safety Crime prevention important too.

How is reasonable suspicion evaluated? Totality of the Circumstances Test : to evaluate basis of reasonable suspicion, consider cop’s experience

in light of all other factors that formed the suspicion Reasonable suspicion for stop: Where cop observes conduct that, in light of the TOTC, would lead to

formation of an objectively reasonable suspicion that the subject is planning or carrying out illegal activity, cop may briefly detain individual for questioning

Reasonable suspicion for frisk: If the officer observes conduct that leads him to form an objectively reasonable suspicion (reasonably prudent person) based on the TOC, that the suspect is armed and dangerous, the officer may conduct a frisk limited in scope to searching for weapons.

o Government vs. Individual’s interesto Terry search is limited to scope & duration: must look in areas where a weapon may be found. The

search has to be brief, of limited scope

Terry v. Ohio [1967] Stop-and-Frisk[Opinion: Warren]Facts: Officer patrolling saw two men who did not look right to him. He watched them each walk down the road,

look into the window, and turn back 5-6 times each. Officer suspected them of “casing a job” and feared they may have a gun. Officer approached the men, identified himself, and asked for their names. One man mumbled something, so officer grabbed T, spun him around, patted him down, and found a pistol in his pocket. Officer ordered all three men to face the wall, patted them down, and took them into the station where 2 of the men were charged w/ carrying concealed weapons.

Holding: Where the police officer has reason to believe he is dealing w/ an armed and dangerous individual, regardless of PC for arrest, the officer can conduct a reasonable search for weapons. The officer need not be absolutely certain that the individual is armed, but the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Must be based on specific reasonable inference which he is entitled to draw from the facts in light of his experience.

Decision in 1960s during the civil rights movement Government interest:

o Protection of copso Crime prevention

Citizens interest:o Serious intrusion of their sanctity of a person which may cause indignity

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Right of a police officer to make an on-the-street stop, interrogate, and pat down for weapons, “stop and frisk”

o Constitutes a “seizure” whenever a police officer accosts an individual and restrains his freedom to walk away.

o Does not need warrant bc it is a swift action based upon on-the-spot observations of the officer on the beat.

Reasonableness of Search/Seizure:(1) Was the officer’s action justified at its inception?(2) Was it reasonably related in scope to the circumstances which justified the interference in the first

place? Balancing test to assess reasonableness of officer’s conduct:

o Balancing the need to search (or seize) against the invasion which the search (or seizure) entails.o Governmental interest versus private interest

Gov.: effective crime prevention and detection; police officer taking steps to assure the person he is dealing w/ is not armed w/ a weapon that could unexpectedly/fatally be used against him.

Need for law enforcement officers to protect themselves and other prospective victims of violence where they lack PC for an arrest.

When officer is justified in believing individual is armed/dangerous, it is unreasonable to deny officer the power to take measures to determine whether the person is carrying a weapon.

Reasonableness of the particular intrusion:o Objective standard: o Would the facts available to the officer at the moment of the seizure or the search warrant a man of

reasonable caution in the belief that the action taken was appropriate? Scope of the search:

o Limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby

o Less than a full search, even though it is a serious intrusion Exclusionary Rule:

o Mainly about deterring bad police behavior Also preserves judicial integrity

Blacks fear every stop will be pretextual

[Concurring: Harlan] Officer must have constitutional grounds to make a forcible stop. That cops can frisk a hostile person for

protection is correct but:o Frisk depends on the reasonableness of a forcible stop to investigate a suspected crime.o If reasonable frisk must be immediate and automatic

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

[Dissent: Douglas] Search and Seizure is not constitutional unless there was “probable cause” to believe that:

(1) A crime had been committed(2) A crime was in the process of being committed or(3) A crime was about to be committed

No probable cause for carrying a weapon, maybe for loitering Holding gives greater authority to the police than to a judge

o Totalitarian patho Step should be taken by choice of the people through an amendment

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Adams v. Williams [1972—Habeas Case] Stop-and-frisk based on informant tip (reliable)[Opinion: Rehnquist]Facts: Known informant told off. patrolling high-crime area at 2 a.m. that a nearby driver was carrying narcotics

and had a gun. Off. called for assistance, tapped the car window, and asked driver to open the door. W rolled down the window instead, so off. reached in and removed loaded gun from Ws’ waistband. Gun was not visible, but was in the place indicated by informant. Search incident to arrest found heroin on Ws’ person and a machete and revolver in car. W claims initial seizure was not justified by informant’s tip bc it lacked reliability or corroboration.

Holding: Off. justifiably responded to informant’s tip and search was reasonable to insure his safety, therefore, reasonable cause for a stop-and-frisk.

Terry recognizes that a brief stop of a suspicious individual may be reasonable in light of the facts known to the officer @ the time.

o So long as the officer is entitled to make a forcible stop and has reason to believe the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose

Off. acted justifiably in response to informant’s tip—informant provided info in past, came forward personally and was immediately verifiable @ the scene (CT law for immediate arrest upon false complaint).

Stop-and-frisk not limited to officer’s personal observation Circumstances of investigation justify—sitting alone in car parked in high crime area @ 2, W did not

comply w/ off.’s request to step out.o Under these circumstances, the off.’s action was a limited intrusion designed to insure his safety,

and therefore, reasonable. Arrest supported by probable cause, search of person and car incident to arrest was lawful.

[Dissent: Douglas, joined by Marshall] CT allows its citizens to carry weapons Terry should be limited to observations by the officer himself

[Dissent: Brennan] If Terry is not read as officer observations, it will open the channel for the erosion of the protection of the

4th Amend.

[Dissent: Marshall, joined by Douglas] Warrantless searches are the narrowly drawn exception, not the rule Terry did not involve an informant

o Did not hold that whenever a policeman has a hunch he may engage in a stop and frisk. It held that there must be specific facts to conclude that an individual is involved in criminal activity and is armed and dangerous.

Officer did not know about the scene: how long D was in car, who the car belonged to, whether the gun was carried legally, what kind of narcotics, or the basis of the informant’s knowledge.

Conclusory hearsay not ok Terry requires reliable information that the suspect is armed and dangerous

o Guns are legal in CT no reason to think D was dangerous Arrest and subsequent search did not have probable cause

o Did not ask if D was carrying the gun legally Franks: hangs on the fact that informant was reliable.

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

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Facts: Anonymous caller reported to police a young black male @ bus stop in plaid shirt carrying a gun. Off. arrived and saw 3 black males, 1 w/ plaid shirt, but had no other indication of illegal conduct. Off. approached JL and told him to put his hands up, frisked him, and seized gun.

Holding: Anonymous tip that a person is carrying a gun w/out more is insufficient to justify a police officer’s stop-and-frisk of that person.

Anonymous tips are generally less reliable and can form the basis for reasonable suspicion only if accompanied by specific indicia of reliability.

o When anon. tip is corroborated—sufficient indicia or reliability to make investigatory stop.o Tip had no predictive informationo “The reasonableness of suspicion must be measured by what the officers knew before they

conducted the search.”o Accurate description of subject’s observable location does not show knowledge of criminal activity

Open to abuse by anonymous harassers Decision limited to cases in which the officer’s authority to make the initial stop is at issue, not when off.

accords w/ Terry to conduct a protective search of a person who has been legitimately stopped.

[Concurrence: Kennedy, Joined by the Chief Justice] Anonymous tips w/ similar voices can gain credibility

Illinois v. Wardlow [2000] Reasonable suspicion [Opinion: Rehnquist]Facts: Off. drove a caravan to a high-traffic area. W was holding an opaque bag, saw the officers, and fled. Off.

caught W and patted him down for weapons (in experience it was common for narcs to be in vicinity). During frisk, Off. found handgun in bag.

Holding: Officer is justified in making a determination of reasonable suspicion based on commonsense judgments and inferences about human behavior.

Individual’s presence in a high crime area is not enough particularized suspicion to believe that person is committing a crime.

o Officers can use totality of the circumstances to see if further investigation is warranted: Unprovoked flight—cases have noted nervous behavior is pertinent

Determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.

People have a right to go about their business when officer approacheso Flight is not going about your businesso Terry recognized officers could detain individuals o resolve the ambiguity of their actions

Terry assumes the risk that officers may stop innocent people.

[Concurring in part, dissenting in part: Stevens, joined by Souter, Ginsburg, and Breyer] Accepts the rejection of per se rules but disagrees w/ conclusion that Off. had reasonable suspicion to stop

W. Factual inconsistency of Off. no reasonable suspicion

o Nothing suspicious about carrying a bag, the time of day, or a call for suspicious activity.o Flight + High Crime Area ≠ Reasonable suspicion

Character of the neighborhood makes inference of guilt less appropriate, blacks think it’s dangerous to talk to police.

Minnesota v. Dickerson [1993] Scope of a patdownFacts: Off. saw D leaving a crack house, D spotted the police car, abruptly stopped, and began walking the opposite

way. Off. ordered D to submit to patdown, found no weapons, but found a small lump in jacket, examined it, and retrieved it.

Holding: Police may seize contraband detected through the sense of touch during a patdown search, so long as the search stays w/in the bounds marked by Terry. Off. never thought the lump was a weapon and did not know it was cocaine, only determined after he manipulated the pocket unlawful.

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If police officer lawfully pats down suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there is no invasion of suspect’s privacy beyond that already authorized by officer’s search for weapons.

o If object is contraband warrantless seizure is justified by plain-view considerations. Continued exploration of D’s pocket after determining there was no weapon amounted to an evidentiary

search. Officer was lawfully in the position to feel the lump in D’s pocket (under Terry), but not to determine the

incriminating character of the object.o Off. conducted a further unauthorized search.

Plain touch v. manipulation

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

discovered in the course of a lawful search is permissible.

B. Consent Searches Validly obtained consent allows for a warrantless search (w or w/out PC) Opens doors to a vast number of searches Waives- by consenting person waives righto be free from unreasonable searches and seizures Non-search- consent turns search to non-search Reasonableness Rule: validly obtained consent allows for warrantless search with or without probable cause of potentially

unlimited scope Must be:

o Voluntary (Bustamonte) test: totality of the circumstanceso Real (Matlock) or Apparent authority (Rodriguez)o Scope cannot exceed consent granted

Schneckloth v. Bustamonte [1972] Voluntariness of Consent[Opinion: Stewart]Facts: Off. pulled over vehicle w/ lights burned out. 6 men inside car, passenger gave permission to search, off.

found stolen carwash checks. Holding: Voluntariness of consent is a question of fact to be determined from all the circumstances, and while the

subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.

Voluntariness: must look to the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.

o Factors: youth, lack of education, intelligence, advice of constitutional rights, length of detention, repeated/prolonged nature of the questioning, and use of physical punishment.

o Question of fact No duress, coercion Do not need to have knowledge of the right to refuse consent Two concerns:

o Legitimate need for such searches and the assurance of the absence of coercion Applies to consent searches before Miranda “custodial interrogation” Focus of the case: what constitutes valid consent, not who can consent. Narrow holding. “This Court’s decisions reflect a frank recognition that the Constitution requires the

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

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police forgo all questioning, or that they be given carte blanche to extract what they can from a suspect.” Pg. 301.

Court looks at “overborne will”

[Dissenting: Marshall] Court misstates the true issue—whether a statement of assent to search is sufficient to permit the police to

search and relinquish Acala’s constitutional right to exclude police. No sane person would knowingly relinquish a right to be free of coercion Knowing choice—cannot make a decision w/out knowing the available alternatives Majority’s “practicality” is capitalizing on the ignorance of citizens by getting them to relinquish rights

o More criminals would be apprehended, but police would be disregarding the ConstitutionFranks: Majority is saying we would rather people be ignorant bc it helps law enforcement

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United States v. Matlock [1974] Consent by a 3rd party[Opinion: White]Facts: M was arrested outside of his home. Off. went to the door, and was admitted in by G. G consented voluntarily

to the search of the house and the east bedroom which she jointly occupied w M.Holding: Voluntary consent of any joint occupant of a residence to search the premises jointly occupied is valid

against the co-occupant, permitting evidence discovered in the search to be used against him at a criminal trial.

Voluntary consent is not limited to consent by the defendant, but may be consent from a 3rd party w/ common authority over or other sufficient relationship to the premises or effects sought to be inspected.

Remand to DC to reconsider the sufficiency of the evidence.

Illinois v. Rodriguez [1990] Apparent Authority Doctrine[Opinion: Scalia]Facts: R’s gf let cops into R’s apartment, where they found drugs in plain view and arrested R. GF did not actually

live there, had actually moved out weeks earlier but had called the apartment “ours” and said she had clothes/furniture there.

Holding: A warrantless entry is valid when based upon the consent of a 3rd party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not.

Burden on State to show common authorityo Here GF moved out a month before, never invited friends there, and never was there w/out R. o Name was not on lease, did not pay rent, and had stolen the key.o Therefore, no joint access or control

4th protects whether searches are unreasonable. Actual authority analysis:

o Keyo How long ago did she move outo Could she have visitors?

Reasonableness: does not demand government is factually correct in its assessment of what a search will produce.

o Does not preclude erroro Does not require factual accuracyo “Good faith belief”

Consent must be judged against an objective standard: would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over premises?

Reasonable belief of apparent authorityok Franks: “Apparent Authority Doctrine”: it is sufficient if consent is given by someone w/ merely apparent

but not actual authority (rejected in Stoner).

[Dissenting: Marshall, joined by Brennan and Stevens] Person may limit his expectation of privacy by allowing others to exercise authority over his possessions—

R did not do so here Must have a warrant—exceptions serve “compelling” law enforcement goals (exigency), departure not

justified by off.’s misguided belief in 3rd party. Probable cause only subject to narrow exceptions Apparent authority—erodes 4th—only the petition can waive by word or deed Majority ignores expectation to privacy, which individuals are entitled to rely.

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C. “Special Needs” Searches Any search made by government for any reason other than criminal law enforcement. Largely artificial exception reasonableness Main themes:

o Thin line between law enforcement and non-law-enforcemento Erosion of individualized suspiciono Split btw justices:

Reasonableness/balancing Not a conservative/liberal split

Closely Regulated Businesses:o 1. Is it a Closely Regulated Business?o 2. What is a reasonable search of these types of businesses?

Involve BALANCING TEST:o Government interests:

Demonstrated problem? Efficacy/Relation to interest? (False choices) Nature of the infraction

o Citizen’s Interests: Privacy Property Nature of Intrusion

Factors considered: law enforcement involvement in police/execution, regulated activity, notice (consent), individual suspicion (profiling concerns), police discretion, and whether the results are turned over to law enforcement.

1. Administrative SearchesNew York v. Burger [1987] Facts: Two off. entered B’s junkyard to conduct an inspection pursuant to NY Vehicle Law. B said he did not have a

“police book” and did not object to an inspection. B was charged w/ possession of stolen prop. and unregistered operation as a vehicle dismantler.

Holding: In situations of “special need,” where privacy interests of owner are weakened and the government interests in regulating particular bus. are heightened, a warrantless inspection of commercial premises may be reasonable w/in meaning of 4th.

Owner/operator of “closely regulated” industry has reduced expectation of privacyo Lessened application of the warrant/probable cause req.

“Special Need”: where privacy interests of the owner are weakened and the gov. interests in regulating are heightened, a warrantless inspection of commercial premises may be reasonable w/in meaning of 4th.

Warrantless inspection reasonable if: (1) Substantial government interest that informs the regulatory scheme pursuant to which the inspection

is made Operation of a junkyard is “closely regulated” in NY—license (registration and fee), police book, and

availability for inspection by police or any DMV agent. Substantial interest: auto theft has increased, industry is associated w/ problem

(2) Warrantless inspections must be necessary to further the regulatory scheme If owner knew of inspection, he would change business to conform to regulations Regulation serves State’s interest: theft can be controlled by controlling the receiver of, or

market in, stolen property(3) Statute must be an adequate substitute for a warrant

Constitutionally adequate substitute for warrant: o Statute informs that inspections will be made on regular basis—noticeo Time, place, and scope are limited

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“Administrative statutes and penal laws may have the same ultimate pupose of remedying the social problem, but they have different subsidiary purposes and prescribe different methods of addressing the problem”

o Distinguish: penal = punishment of individuals for specific acts of behavior; administrative = rules to guide operator’s conduct of business

Court declines to make states carry out statutes w/ special agents instead of police

[Dissenting: Brennan, joined by Marshall and O’Connor] Agrees w/ majority: warrantless inspections of CRBs are valid if necessary to further an urgent state

interest and if authorized by statute that limits time, place, and scope. However, vehicle-dismantling business is not CRB—administrative warrant was req. for search

o Search was only for evidence of criminal wrongdoingo Vehicle dismantling easy business to join (register and pay fee)

If it’s a CRB most NY businesses are Even if CRB, search violated 4th

o Statute does not provide certainty and regularity of a warrant substitute State is using administrative scheme as pretext for search w/out PC for evidence of criminal violations

o Police recorded wheel chair #--not relevant to State’s administrative scheme of vehicles/parts “A legislature cannot abrogate constitutional protections simply by saying that the purpose of an

administrative search scheme is to prevent a certain type of crime.”

2. Students, Probationers, and Public Employees National Treasury Employees Union v. Von Rabb [1989] Suspicionless Searches[Opinion: Kennedy]Facts: Commissioner implemented drug tests for certain positions w/in Customs, which were a condition of

placement/employment for jobs in three criteria: (1) direct involvement w/ drug interdiction; (2) incumbents carrying firearms; (3) handling “classified” material.

Holding: Gov.’s need to conduct suspicionless searches required by the Customs program outweighs the privacy interests of employees engaged directly in drug interdiction, and of those who otherwise are req. to carry firearms.

Program does not serve ordinary needs of law enforcement test results cannot be used in a crim pro w/out employee’s consent.

Not intrusive test Purpose of program: to deter drug use among those eligible for promotion

o Substantial interest—presents a special need—departure from warrant/probable-cause reqs. In certain circumstances, Gov.’s need to discover/prevent conditions justify intrusion of privacy by

searches w/out individualized suspicion.o Public interest demands effective measures to bar drug users from positions directly involving the

interdiction of illegal drugso Policy is reasonable: drug users would create safety/national security hazardso Relation to airline searches: in 15 years of program, over 10 billion people/bags searched, only

42,000 firearms found. Low incidence of conduct does not impugn the validity of the scheme, but indicates a hallmark of success.

Court rejects contention that most employees tested are innocent Reasonableness: Gov.’s interests in preventing the promotion of druggies > privacy interests of individuals

[Dissent: Scalia, Joined by Stevens] Issue is about the steps taken to detect drug use

o Execratory function traditionally shielded by privacy, monitor listening, handing over pee for analysis—search destroys privacy and offends personal dignity.

Citizen’s interest is far more imporrtant Opinion does not connect frequency of drug use or likelihood of harm

o Implausible speculation

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o Not clear the urine tests will prevent impaired perception and judgment Majority quotes Brandeis: “For good or for ill, [our Government] teaches the whole people by its

example”—actually mocking Gov. action when “the ends justifies the means” Franks: Cannot take the gov.’s word for the implications of the search. All the horrible things the gov. is

worried about never happened. “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but w/out

understanding”

New Jersey v. T.L.O. [1985]**Limited to searches by S. Officials acting aloneFacts: Teacher found girls smoking in b-room. Brought TLO to principal’s private office, where she denied

allegations. Principle opened the purse, found cigs, reached further and saw rolling papers, and proceeded w/ a thorough search finding pot, pipe, bags, bills, and implicating dealing letters. Principal turned letter over to police, TLO confessed on basis of evidence seized, and TLO was brought up on delinquency charges.

Holding: (1) School officials need not obtain a warrant before searching a student who is under their authority; (2) Under reasonableness of the circumstances, the search was justified under 4th.

4th prohibition of unreasonable searches/seizures applies to public school officials.o Teachers and school administrators act in furtherance of publicly mandated educational and

disciplinary policies of the State, not merely in loco parentis cannot claim parents’ immunityo Agents of the state

School discipline v. student privacy Standard of reasonableness: Balancing the need to search against the invasion in which the search

entails.(1) Individual’s legit expectations of privacy and personal security

Must be “one that society is prepared to recognize as legitimate” W/in school: students need to carry variety of items do not waive right to privacy by

bringing them on school grounds Student have less expectation of privacy at school

(2) Gov.’s need for effective methods to deal w/ breaches of public order Schools interest: maintaining order in the classroom; deterring drug use and violent crime

(has become major problem). Warrant req. is unsuited for schools

Level of suspicion needed to justify search: reasonableness, under all the circumstances, of the search(1) Was the action justified at its inception?(2) Was the search reasonably related in scope to the circumstances which justified the interference in

the first place? “Such a search will be permissible in its scope when the measures adopted are reasonably related to the

objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

Search was reasonable:o TLO accused of smoking—possession of cigarettes is relevant to the charges against her

(corroboration) Nexus btw item searched for and the infraction under investigation

o Reasonable suspicion for TLO to have cigs—common sense conclusion about human behavior which practical people are entitled to rely.

Only needs sufficient probability, not certaintyo 2nd search for pot: rolling papers gave rise to reasonable suspicion, therefore, reasonable search

evidence turned over to police involvement of law enforcement does not mean it was for law enforcement purposes

[Concurring: Powell] Emphasis: Elementary/Secondary schools have less constitutional protections than adults and juveniles in

a non-school setting.

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

[Concurring: Blackmun] Court omits crucial step in analysis: only exceptional circumstances, in which “special needs” beyond law

enforcement make the warrant/probable-cause req. impracticable, can the court use balancing of interests over Const. right.

Elementary/Secondary school setting = special needs

[Concurring in part, dissenting in part: Brennan, joined by Marshall] Agree : schoolteachers/principals may conduct a search w/out warrant “The Warrant Clause is something more than an exhortation to this Court to maximize social welfare as we

see fit. It requires that the authorities must obtain a warrant before conducting a full-scale search.” Gov. must have special interest to justify exception to warrant req.—exigency

o Exists in this case: teacher/principal could not protect students’ safety if req. to wait for warrant. Disagree : disregard to probable-cause standard (textually supported! Unlike balancing)

o Balancing test is flawed in its inception and executiono 2nd search was invalid—based solely on presence of cig papers, therefore, fruits of illegal search

should be excluded. Franks: this was a full-scale search, not a protective search, so how can you use reasonableness?

[Concurring in part, dissenting in part: Stevens, joined by Marshall and Brennan in I] Court inappropriately reached out to decide a constitutional question—holding will permit school admins

to search students suspected of violating the most trivial school regs. Pet. for cert. did not raise Q of whether the purse search violated 4th, only whether exclusionary rule applies

to schools.o Application of exclusionary rule in crim pro arising from illegal school searches makes an important

statement to young people that there’s consequences for violation of constitutional rights.o Schoolroom is the first opportunity to experience the power of government

Board of Educ. v. Earls [2002] Suspicionless testing for drugs[Opinion: Thomas]Facts: Student Activities Drug Testing Policy req. all students who participate in competitive afterschool activities

to submit to drug testing. Testing is random and students must agree to be tested @ any time upon reasonable suspicion. Test does not detect medical conditions/authorized prescription meds.

Holding: The policy reasonably serves the School District’s important interest in detecting and preventing drug use among its students, therefore, it is constitutional.

Veronia v. Acton: Court held suspicionless drug testing of athletes was constitutional. History of drug use a school

Nature of the privacy interest: o Limited in a public school environmento Students are subjected to greater control than appropriate for adults.o Students who participate in competitive extracurricular activities voluntarily subject themselves to

same intrusions of privacy as athletes. (communal undress) Character of the intrusion :

o Manner of production: faculty monitor listens to pee sounds, pours into bottles, and is done behind a closed stall—“negligible intrusion”

o Tests are kept confidential—“need to know basis”o Tests not turned over to law enforcemento Failed drug test limited privilege of participation; 3rd failure suspended from participation

Nature and immediacy of the Gov.’s concern and the efficacy of the Policy in meeting them o Nationwide drug epidemic

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o Specific drug use @ Tecumseh schoolso Von Raab: can be done on a purely preventative basis, does not need “real and immediate interest”

Policy is a reasonable means in preventing and deterring drug use.

[Concurring: Breyer] Program counteracts peer pressure: gives students a reason to turn down drugs Important that urinalysis was discussed @ public meetings Objectors can refuse participation and not participate

[Dissenting: Ginsburg, Joined by O’Connor, Stevens, and Souter] Veronia emphasized inc. risk of sports related injury w/ athletes and athletes were “leaders” of drug

culture. Here: non athletes drug use is “not major” Rejects idea that student voluntarily subject themselves to testing—extracurrics are part of educational

program; key component in school life/applying for college. Schools educate the young about Constitutional freedoms

Ferguson v. Charleston [2001] Uninformed searches[Opinion: Stevens]Facts: State Hospital staff worried about crack baby epidemic, began to order drug screens of urine samples from

suspected maternity patients. If positive, then referred to sub. Abuse commission for counseling/treatment. Task force created to implement Policy M-7 if met one or more of nine criteria, which involved law enforcement notification and arrest.

Holding: A state hospital’s performance of a diagnostic test to obtain evidence of a patient’s criminal conduct for law enforcement purposes is an unreasonable search if patient has not consented to the procedure. The interest in using the threat of criminal sanctions to justify preg. women from using coke cannot justify a departure from rule that nonconsensual search is unconstitutional w/out a warrant.

scope of administrative searches (draws the line)- any search that is at its inception for law enforcement purposes is not allowed. These tests were administered for police purposes to lock up these women. Nurse was racist.

Immediate objective of the searches: to generate evidence for law enforcement purposes—to reach goal of substance abuse treatment/getting preggers off drugs.

o Cannot justify ultimate purpose w/ immediate purposeo Evidence was taken for the specific purpose of incriminating patients—patients must be fully

informed of constitutional rights to constitute waiver. Gravity of threat cannot evade 4th prohibition against nonconsensual, warrantless, and suspicionless

searches. Franks: big deal in this case is lack of consent

o Distinction btw a dr.’s test and the only reason to conduct the test is for law enforcement.

[Concurring: Kennedy] Majority lacks foundation in special needs cases:

o Usually turn on policy’s ultimate goal, rather than proximate purpose Sanctions use of law enforcement in the policy since the inception

o Penal character

[Dissenting: Scalia, Joined by Chief and Tomas in part II] Majority objects to reporting drug-test results to police—not a search Taking of the urine sample could be regarded as a search (testing?)

o 4th protects only “persons, houses, papers, and effects”—urine isn’t effect, but abandoned Court has never protected material that a person hands over to 3rd party Special-needs doc could validate what was done here

o Tests immediately have purpose of improving maternal/infant healthSantiago 41

o Applies to enable searches by law enforcement officials who ordinarily have a law enforcement objective.

o Police involvement takes place after testing was conducted for independent reasons

Safford Unified School Dist. v. Redding [2009] [Opinion: Souter]Facts: Principal received report R (13 y-o) was giving prescription-strength pills to other students and pulled R

into his office. R denied everything, consented to search of her belongings. Female Admin. Assist. came into office, searched backpack w/ male principal, found nothing. P sent R to nurses office, where she had to strip, pull her undies out, and shake. Search produced no pills.

Holding: (1) Search of students bra/undies violates 4th bc there was no reason to suspect the drugs presented a danger or were concealed in her undies; (2) Right was not clearly established, so the official who ordered the unconstitutional search is entitled to qualified immunity from liability.

School policy prohibits use, possession, or sale on school grounds of any prescript/over-the-counter drug Week before R was searched, another student told Principal about students bringing drugs/weapons on

campus—students planned to take pills @ lunch that day Principal’s suspicion justified search of R’s backpack and outer clothing

o Search was not intrusive—private office Strip search—not about who was looking and what was seen

o Fact of pulling underwear w/ officials there violated subjective and reasonable societal expectations of personal privacy—needs further justification

o Indignity of the search does not outlaw it—reasonableness depends on if the search is reasonably related in scope to the circumstances which justified the interference in the first place.

Scope is permissible when not excessively intrusive in light of age/sex of the student and the nature of the infraction

Search is unreasonable o No indication of danger to students from the power of the drugs or their quantity!o No suspicion that R was carrying pills in undies

Franks: Nature of the Infraction no emergency!

[Concurring in part/Dissenting in part: Stevens, joined by Ginsburg] Disagrees w/ grant of qualified immunity to school official, thinks T.L.O. shows it is unconstitutional to strip

search a 13 y-o.

[Concurring in the Judgment in part and dissenting in part: Thomas] Search did not violate 4th

o Court grants judges sweeping authority to second-guess school officialso Vague and amorphous standard

School had reasonable grounds to suspect R had drugs—Justified @ inceptiono Lunchtime deadline quickly approachingo Totality-of-circumstances justified search of R for pills

Reasonable in scope—4th grants leeway to school officialso Pills could have been hidden in undies—reasonableo Area is capable of concealing the object of the searcho Reasonable to think Backpack was empty bc R was hiding pills in a place she thought no one would

look “Nature of the infraction”—test is unworkable bc school officials shouldn’t have to hault searches bc of

possibility a court will later find the infraction was not severe enough to warrant an intrusive investigation

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3. CheckpointsMichigan Dep’t of State Police v. Sitz [1990]**Only addresses initial stop[Opinion: Rehnquist]Facts: Advisory Committee established checkpoints @ selected sites along state roads. All vehicles would be

stopped, drivers examined for signs of intox., when intox. police check license/registration and conduct sobriety tests. If driver failed, arrest was made. Other drivers could resume.

Holding: State’s use of highway sobriety checkpoints does not violate 4th and 14th. 4th seizure occurs when vehicle is stopped at checkpoint—question of reasonableness

o Magnitude of drunk driving problem—state interest in eradicating ito Balanced w slight intrusion in motorist stop (objective)

Subjective: fear and surprise, but checkpoints follow guidelines fixed systematic DUI stop and was random. No individualized stops. Drunk driving is more of a

public policy because its an imminent danger to public.

[Dissenting: Brennan, Joined by Marshall] Court undervalues the nature of the intrusion and exaggerates the law enforcement need to use the

roadblocks to prevent drunk driving. Police need probable cause for a seizure to be reasonable

o Balancing test only when a seizure is substantially less intrusive than a typical arresto Agrees w/ majority’s use of balancing test—but opinion does not have the reason that the BT is

used, bc seizure is minimally intrusive.

[Dissenting: Stevens, joined by Brennan and Marshall in Parts I & II] No relation btw sobriety checkpoints and a reduction in highway fatalities Diff. btw seizure w/ fair notice and seizure effected by surprise

o Border search less intrusive than random stop (depends on element of surprise)o Tests done @ night

Diff. btw discretion of officer after stopo Border search—check for ID—you have it or you don’to Search for evidence of intox. is more subjective

Arrests could be made if law enforcement resources were put to conventional patrols Drunk driving can be detected w/out checkpoints, unlike aliens riding in cars III. Opinion gives no wait to citizen’s interest in freedom from suspicionless investigatory seizures

o Permanent checkpoints are justified, not suspicionless seizureso Sobriety checkpoints are elaborate publicity stunts to show law enforcement is taking law

seriously.

Indianapolis v. Edmond [2000][Opinion: O’Connor]Facts: Checkpoints to interdict unlawful drugs—police stop a predetermined # of vehicles, approach, advise driver,

take license/registration, looks for signs of impairment and does and open-view check, and narcotics-detention dog walks around vehicle. Search only done on consent or particularized suspicion. Sign in advance of checkpoint.

Holding: Because the primary purpose of the Indi narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes 4th.

Dogs do not transform the seizure into a searcho Sniff is much less intrusive than a typical search

Distinguish these checkpoints: primary purpose—detection of evidence of ordinary criminal wrongdoingo Not enough to be “general interest in crime control”

“[T]he gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose.” Pg. 432.

Distinguish Sitz: no vehicle-bound threat to life/limb like a sobriety checkpoint. Immediate

Santiago 43

Primary purpose of program is indistinguishable from the general interest in crime control pretext to stop who ever they want. Wasn’t random like Sitz. They were looking for drugs in this

case and purpose was to jail people *** would police have stop if they couldn’t arrest people? No, no immediate harm Franks: need individualized suspicion.

[Dissenting: Rehnquist, Joined by Thomas and Scalia in Pt. I] While stop’s primary purpose is to interdict illegal drugs, it also checks licenses/registrations and looks for

signs of impairment—2 important State interests Subjective intrusion: short, signs, high success rate

o Only diff. from Sitz: dogs, which is not part of a search Automobile has a lower expectation of privacy—coupled w/ limited intrusion ≠ intrusiveness of

body/home

[Dissenting: Thomas] Precedent shows roadblock seizures are permissible if conducted according to a plan that limits the

discretion of the officers conducting the stops.

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Chapter 7: The Forth Amendment in Context Searches of homes are different than searches of businesses Searches of individuals are different than searches of homes Searches of cars are different from searches of other effects

A. Persons 1. Search Incident to Arrest (SILA)

Full custodial arrests (Chimel, Robinson) Limited: weapons and evidence

(1) Arrestee’s person (limitations on intrusiveness)(2) “Grabbing Area” (Immediate control)(3) In home: immediately adjoining spaces from which an attack can be branched

Chimel v. California [1969] SILA of home[Opinion: Stewart]Facts: Off. go to C’s home w/ warrant authorizing C’s arrest, knock, identify to wife, and ask to come inside. C comes

home after 15 mins., Off. ask to around, C objects, but Off. conduct search “on the basis of the lawful arrest (no search warrant issued). Off. searched entire house for 45-60 mins.

Holding: When executing an arrest warrant, search must be limited to suspect’s person and grabbing area for either a weapon or evidence against him.

Search incident to arrest principle: when an arrest is made, it is reasonable for the arresting officer to search the person arrested to remove any weapons he might seek to use to resist arrest or effect escape.

o Includes suspect’s grabbing area of weapons or evidentiary itemso “Within immediate control”

extigent circumstance Incentive for police to wait until suspect goes home to arrest him search the house P. 443 Justification: (1) Protection of evidence; (2) Officer Safety

United States v. Robinson [1973]***Concern of the Court: CRIME AND PUNISHMENT[Opinion: Rehnquist] SILAregardless of offenseFacts: Off. observed R driving car, based on previous investigation determined there was reason to believe R was

operating car w/ revocation of operator’s permit, an offence defined by statute in DC (jail, fine, or both to punish). Off. pulled car over and searched J w/ a patdown, finding something in jacket pocket. Off. pulled it would to identify it: crumpled up cigarette package, opened it, found heroin.

Holding: In the case of a lawful custodial arrest, a full search of the person is an exception to the warrant req. of 4th and is reasonable.

SILA not held to stricter Terry standards Justification for SILA: (1) Disarm before custody; (2) Preserve evidence (extigent circumstance) Degree of SILA does not depend on the nature of the offense Lawful arrest authority to search full search is reasonable

o Does not req. case-by-case adjudication of probability of suspect having weapons/evidence Did not feel like weapon Pulled over for suspended license and searches and finds drugs in crumbled cig case. The only

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

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

search.o Need case-by-case adjudication to determine whether search was conducted for legitimate reasons

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Rule is too rigid under 4th

Must be a reasonable relation btw the arrest and search—no reason to think a traffic violated is armedo Terry did not allow off. to stop-and-frisk anyone on the street, only when he believes it is an armed

and dangerous individual.

Illinois v. Lafayette [1983] Inventory Search[Opinion: Burger]Facts: L arrested for disturbing the peace. Later @ police station, L had to empty pockets—cigarette package had

amphetamine pills.Holding: It is not “unreasonable” for police, as part of the routine procedure incident to incarcerating an arrested

person, to search any container or article in his possession, in accordance w/ est. inventory procedures. Must be routine/standardized procedure at police station This case does rest on PC—absence of warrant is immaterial to reasonableness

o Inventory search is an exception to the warrant requirement Search of the person of an arrestee @ police station has diff. justification factors:

o Gov. interest in stationhouse search is higher—more leniency for officers @ stationo May disrobe before confiningo Inventory process—deters false claims of thefto Risk of injury to arrested persons—confiscate dangerous instrumentalitieso Police fear is irrelevanto Way of verifying identity.

Court is not in the position to second-guess police departmento “less intrusive” means not relevant to reasonableness

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B. Houses Welsh v. Wisconsin [1984][Opinion: Brennan]Facts: W drove car off the road and left the scene. Witness called police, who inspected car, went to W’s home

w/out warrant, gained entry from stepdaughter, and arrested W in bed. W taken to police station were he refused breath-analysis test. Appeal of license revocation, not an exclusionary rule case.

Holding; Absent exigent circumstances, a warrantless, nighttime entry into a suspect’s home to arrest him for a civil traffic offense is prohibited by protection of the home in 4th.

Invasion of the home is a chief evil that 4th is directed against—search/seizure of home w/out warrant are presumptively unreasonable.

Burden is on Gov. to demonstrate exigent circumstances to overcome presumption of unreasonablenesso Nature of the underlying offense: noncriminal, traffic offense

Not “hot pursuit” bc there was no immediate/continuous pursuit of W from the scene of a crime.

No threat to pub. safety bc W was home. Not sufficient exigency bc of destruction of evidence (BAC)

Franks: Exigent circumstances depend on the gravity of the situation- non-criminal offense, at home, no public threat

Minnesota v. Olson [1990] Overnight guests[Opinion: White]Facts: Robbery/murder. Police suspected Ecker, went to his home, and 2 men fled an Oldsmobile. E was captured

shortly after inside his home. 2nd man escaped. Inside the Oldsmobile, police found $, murder weapon, and title w O’s name. Next day, informant called police and said O drove the car during crime and was getting ready to leave town. Police obtained a “probable cause arrest bulletin” for O’s arrest—directed to stay away from O’s duplex. Police went inside house w/out permission and w/ weapons drawn and found O in closet.

Holding: Overnight guest in a home has a reasonable expectation of privacy in the home that society is prepared to recognize as reasonable.

an overnight guest has the same expectation of the home-owner. Unclear still if only has the intent to stay they get the same protection.

Doesn’t have a key, not left alone, no rights of exclusion Assumption of risk cases

Minnesota v. Carter [1998] Temporary guests for commercial transactions[Opinion: Rehnquist]Facts: Confidential informant directed Off. to ground level apartment where drug bagging operation was visible

behind gap in the blinds. When men left, Off. pulled over car, observed gun, and arrested 2 men. Search of apartment revealed residue and baggies. Men had never been to the apt. before and were there for 2 ½ hours.

Holding: There is no legitimate expectation of privacy for defendants “simply permitted on the premises” for a purely commercial transaction for a short period of time w/out a personal relationship to the homeowner.

Business < home Permission to stay v. permission to do business 4th: protection to people in “their” houses—one who is merely present w/ consent of householder may not

claim protection of 4th.o Rs have standing

Respondents were there for a business transactiono No previous relationship w/ ownero Not overnight guestso Cannot claim protection as workplace (no significant connection)o Purely commercial

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

[Concurring: Scalia, Joined by Thomas] Threshold question: whether a search/seizure covered by 4th has occurred

o Does not require “legitimate expectation of privacy” to be applied firsto “their…houses”—each person has right to be secure against unreasonable searches/seizures in his

own person, house, papers, and effects. Must actually live there—not an apartment used to package cocaine

Katz test (subjective expectations of privacy that society is prepared to recognize as reasonable) turned into what Court considers reasonable

o Self-indulgent test cannot be used to determine whether a search/seizure has occurred bc IT IS NOT IN TEXT OF 4TH.

[Concurring: Kennedy] Respondents had no connection w/ home

[Concurring in the judgment: Breyer] Respondents can claim 4th protection in home, however, officer’s observation from outside home did not

violate 4th rights.o Off. was standing in a public place where may people passed by—not an unreasonable searcho If you live in a basement apt., you should understand the need for care to keep out unwanted eyes.

[Dissenting: Ginsburg, Joined by Stevens and Souter] Court’s decision undermines the security of short-term guests, and the resident’s security of the home

o When a homeowner invites a guest, guest should share host’s shelter against unreasonable searches/seizures.

Limited to those chosen to share privacy of home/company w/ guest…not milkman/delivery boy

o There is a subjective expectation to privacy that society is prepared to recognize as reasonable

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3. Technology and the HomeUnited States v. Knotts [1983] Tracking device on car[Opinion: Rehnquist]Facts: Off. suspected K of manufacturing illicit drugs and installed a beeper on a container. Off. followed car and

found location. Off. secured a search warrant and found a meth lab.Holding: Beeper tracking device attached to a car to follow movement does not invade any legitimate expectation

to privacy. Person traveling in car on public roads has no reasonable expectation to privacy. Visual surveillance from public places would have revealed the route/K’s premises

o 4th does not prohibit augmenting the sensory faculties as science/tech. permits.o Beeper has limited use—ascertaining the ultimate resting place of chloroform (did not track inside

home) Katz: beeper did not invade any legitimate expectation of privacy bc it was a car on a public road.

o Not a 4th search/seizure

[Concurring in the Judgment: Brennan, Joined by Marshall] Confusion of 4th standing—container sold to compatriot, not K

[Concurring in the Judgment: Stevens, Joined by Brennan and Marshall] Reasonable for police to use information received over the airwaves Does not join court bc opinion contains 2 unnecessary dicta:

o “Open fileds” doctrine—drum was outside the cabin in public display. Not a valid statement.o 4th does not prohibit augmenting the senses w/ technology—what about Katz??

Kyllo v. United States [2001] Thermal Imaging Devices[Opinion: Scalia]Facts: Off. used thermal imaging device aimed @ private home from a public street to detect infrared radiation to

check for heat lamps to grow pot.Holding: Where Gov. uses a device that is not in general public use to explore details of the home that would

previously have been unknowable w/out physical intrusion, the surveillance is a “search” and is presumptively unreasonable w/out a warrant.

Area is a home—privacy expectations are most heightened—constitutes a searcho Katz test: expectation to privacy exists in the home and is acknowledged to be reasonable.o Using sense-enhancing technology to get info not otherwise available w/out physical intrusion

constitutes a search, at least where the technology is not in general public use.o Dissent’s argument that imager did not get info about interior of the home is inaccurate—imager

reveals heat of various rooms inside the home. No distinction btw “off-the-wall” observations and “through-the-wall” surveillance.

Homeowner should not be left @ mercy of advancing technology. 4th protection not tied to sharing “intimate details”—does not matter about the quality/quantity of

information obtained.o All details of the home are intimate bc the entire area is safe from prying Gov. eyes.o Limiting prohibition of thermal imaging to “intimate details” would be impractical—do not know in

advance what details would be detected. The 4th Amend. draws “a firm line @ the entrance to the house.” Franks: As soon as in common use holding does not apply

[Dissenting: Stevens, Joined by Chief, O’Connor, and Kennedy] Through-the-wall surveillance—gives observer or listener direct access to info in a private area Off-the-wall surveillance—indirect deductions from observation of the exterior of the home

o Infrared camera passively measured emitted heat, which showed some areas were warmer than others. It was not information that could not have been observed.

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o Public could observe from melting snow or rain evaporation.o Equipment did not penetrate walls or obtain info regarding the interior of the homeo Officer conduct did not amount to a search and was perfectly reasonable.

Police should not have to avert their senseso Party interest is minimal—people should insulated homes to keep heat in

Distinguish from Katz: device in Katz allowed officers to intrude bc device gave access to info inside the private area. Here, only disclosed heat radiating from the house.

o If Katz device only disclosed the volume of the sound leaving the booth, which is discernable in the public domain.

Franks: it is an inference, so it is not a search

United States v. Pineda-Moreno [9th Cir. 2010]Dissenting from the denial of rehearing in bancFacts: Police went onto P’s property during the night and put a GPS on his car.

Curtilage has the same protection as the home itself Just bc people can enter property does not mean we openly invite police to snoop “To say that the police may do on your property what urchins might do spells the end of 4th

protections for most people’s curtilage.” Pg. 531 Constitutional protection should be provided to rich/poor—cannot penalize those w/out $ for gate 24-hour surveillance

Santiago 50

C. Automobiles Carroll: est. the automobile exception to Warrant Clause. Goods concealed and illegally transported in a

vehicle may be searched for w/out a warrant. Less private/protected than homes

o Mobility (Exigency)o Regulated (Reduced expectation of Privacy)

Chadwick: person has a higher expectation of privacy w/ luggage and personal effects than he does w/ an automobile.

California v. Acevedo [1991] Container search of automobile[Opinion: Blackmun]Facts: Off. got info about pot package from a DEA officer, watched Daza claim package and bring it home. Off. got a

search warrant. St. George went to apt., came out w/ backpack…police stopped him when he drove off, searched the backpack, and found pot. A went to apt., got brown bag, and put it in his trunk. Off. stopped him, opened the trunk, and found pot.

Holding: The police may search and automobile and the containers w/in it where they have probable cause to believe contraband or evidence is contained.

Carroll : impracticable to secure a warrant bc the vehicle can quickly move out of locality or jurisdiction; enough to have PC to believe vehicle has evidence of crime.

Ross : held a warrantless search of an automobile under Carroll could include a search of a container or package found inside the car when the search was supported by PC.

Sanders : heightened privacy expectation in personal luggage…presence of luggage in an automobile does not diminish the owner’s expectation to privacy in personal items.

o In Ross you don’t need warrant; in Sanders you do Here: like Ross, police had PC to believe drugs were in bag in trunk Clear-cut rule: Police may search w/out warrant if search is supported by PC.

o Scope is defined by places in which there is PC for container to be foundo Here: Police had PC to believe bag in trunk had pot—warrantless search of bag OK

Overrules Sanders!

[Concurring in the Judgment: Scalia] 4th does not require a warrant for searches/seizures, rather prohibits unreasonable searches/seizures.

o Warrants: limitation upon their issuance, rather than a requirement of their use; means of insulating officials form personal liability.

Closed container is not part of “automobile” exception to the general warrant requirement, but bc there is PC to believe the container has contraband and in fact does have contraband, 4th reasonableness does not depend on warrant.

o Police could have arrested A as he left Daza’s house bc of PC—search bag pursuant to the arrest.

[Dissenting: Stevens, Joined by Marshall and White] Absent exceptional circumstances, decision to invade individual’s privacy should be made by a neutral

magistrate, rather than agent of the Executive. Burden of warrant req. is outweighed by individual interest in privacy that is protected by advance judicial

approval. Anomalous to prohibit the search of a briefcase while owner is carrying it on public street, but to allow it

once placed inside trunk of car.o In either location, if there is PC police can seize and detain briefcase and wait for judicial approval

to search.

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

Santiago 51

Facts: Off. stopped car w/ 3 people inside and found pouch/wallet-type container inside passenger’s purse. Off. found drug paraphernalia, syringe, and drugs inside.

Holding: Police officers w/ PC to search a car may inspect a passengers’ belongings found in the car that are capable of concealing the object of the search.

Officers had PC to believe there were illegal drugs in the car No distinction among packages or containers based on ownership (Ross)

o PC to search for contra in car no need for individualized PC for each package Balancing of interests allows Off. to search passenger’s belongings

o Reduced expectation of privacy for both passenger and drivers for property transported in carso Governmental interests are substantial: effective law enforcement would be impaired w/out ability

to search a passenger’s belonging. Common enterprise w/ driver (Pringle), same interest in concealing fruits or evidence of

wrongdoing Criminal could hide contraband in passenger’s belongings.

[Concurring: Breyer] Limitations of the rule: only automobiles, only containers w/in automobiles, not persons found w/in

automobile. Purse was separate from person, so it does not have protection.

[Dissenting: Stevens, Joined by Souter and Ginsburg] In all prior automobile exception cases, D was operator of the vehicle and in custody of the object of the

search.o Di Re: passenger D—held the exception to the warrant req. didn’t apply.

Courts rule makes distinction btw property in clothing worn by passenger and property contained in passenger’s briefcase or purse.

o Intrusion in these items just as serious as Di Re. State interest in effective law enforcement does not outweigh privacy concerns

Santiago 52

3. Searches Incident to Arrest Different search an Probable Cause automobile search (Acevedo, Houghton)—In a SILA automobile search,

you were caught w a syringe and the cops have reason to believe there is more evidence w/in the car. In a PC search, the cops see you put a container in your car and have PC to search it.

Thornton v. United States [2004][Opinion: Rehnquist]Facts: Off. pulled over T for having the wrong license tags. T agreed to a patdown and officer found pot and crack.

Off. arrested T, placed him in back seat of patrol car, and searched T’s car, finding a handgun.Holding: When arrestee is the “recent occupant” of a vehicle, an officer may search the vehicle incident to the

arrest. Belton: held that when a police off. makes a lawful custodial arrest of an occupant of an automobile, 4th

allows officer to search passenger compartment of the vehicle as a contemporaneous incident of arrest.o Danger to officer flows from the fact of the arrest.o Does not hinge on whether arrestee is inside car or exited the car—both are highly volatile

situations. Once officer determines there is PC to make arrest—reasonable to allow officer to ensure his safety and to

preserve evidence by searching the entire passenger compartment.

[Concurring: O’Connor] Police wrongly treat the search of a vehicle incident to arrest as an entitlement, rather than an exception.

[Concurring in the Judgment: Scalia, Joined by Ginsburg] T was neither in nor anywhere near the passenger compartment of car, he was handcuffed and secured in

the back of a squad care. The risk of grabbing a weapon was remote, so he dissents. Nothing irrational about broader police authority to search for evidence when/where the perpetrator of a

crime is lawfully arrested.o Arrest distinguishes the arrestee from society at large—distinguishes his crime from general

rummaging. o Belton is not an application of Chimel, but a return to the broader search incident to arrest.

Would limit Belton searches to cases where it is reasonable to believe evidence relevant to the crime of the arrest might be found in the vehicle.

o This case: reasonable for the officer to believe there might be evidence related to the drug offense w/in the vehicle.

[Dissing: Stevens, Joined by Souter] Like a Chimel search bc he is a pedestrian at the moment and not a driver—police may search the area in

the arrestee’s immediate control where he might reach to grab a weapon or destroy evidentiary item. Majority does not saw how recent is recent, how close is close—unworkable rule

Arizona v. Gant [2009]**Plurality opinion[Opinion: Stevens]Facts: G was arrested for driving w/ a suspended license and locked into back of a police car. Police searched

car/pocket of a jacket in the backseat and found coke.Holding: Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is w/in reaching

distance of the passenger compartment @ the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.

Every 4th case begins w/ the reasonableness of a warrantless search:o Rejects Belton and applies Chimel—police may search a vehicle incident to a recent occupant’s

arrest only when the arrestee is unsecured and w/in reaching distance of the passenger compartment @ time of the search.

Santiago 53

o Apply Thornton: in vehicle context, officer may justify SILA when it is reasonable to believe evidence relevant to the crime of the arrest might be found in the vehicle.

Here: traffic violation, nothing in car would have been relevant evidence.o Search was unreasonable: police could not expect to find evidence of crime in car, G could not have

accessed his car @ time of search. Possibly overruling Belton (applied Chimel to a car) Attempt to pull back a bit. You are not able to just search the car, it has to fit w/in these criteria.

[Concurring: Scalia] During a roadside stop, police have less intrusive/more effective ways to enforce safety. Risk of pulling a car over is @ the high at the initial confrontation, not when the person is arrested and in

the back of a squad care. Applying the Chimel standard fails to provide officers w/ guidance and leaves room for manipulation. Court should adopt a rule that a vehicle search incident to arrest is reasonable only when the object of the

search is evidence of the crime for which the arrest was made, or of another crime the officer has PC to believe occurred.

[Dissenting: Breyer] Would like a better rule, but agrees w/ dissent

[Dissenting; Alito, Joined by Chief, Kennedy, and Breyer except II-E] Rule will endanger arresting officers, confuse officers and judges, cause the suppression of evidence

gathered in cases carried out in good-faith reliance on well-settled case law, and undermines Chimel. Would follow Belton Franks: This case is a limitation on the automobile exception bc things have gotten out of hand; Does not

make sense under Robinson (justifies SILA exception to 4th)

Whren v. United States [1996][Opinion: Scalia]Facts: Off. in plainclothes were patrolling “high crime area” in unmarked car. Off. passed car w/ youths that

stopped @ stop sign for 20 secs. The sped off. Cop ordered driver to put vehicle in park, and saw two bags of crack in W’s hands, arrested the boys, and retrieved other illegal drugs from the vehicle. Boys argue cop had PC to believe traffic code violations occurred, but that the cop used it as pretext for search.

Holding: Where cop makes an objectively reasonable stop and there is evidence in plain view, the evidence will be admissible.

W’s proposed standard: whether the Off.’s conduct deviated materially from usual police practices, so that a reasonable officer in the same circumstances would not have made the stops for the given reasons.

o Officer’s subjective motive does not invalidate objectively justifiable behavior under 4th. Stop was based on PC—no need to do balancing analysis

o Detaining a motorist is reasonable if PC exists to believe that a traffic violation occurred. Just bc traffic law is expansive or commonly violated does not mean it is no longer part of law enforcement

Ohio v. Robinette [1996][Opinion: Rehnquist]Facts: R going 69 in a 45, cop pulled him over and asked for license, found no previous violations. Cop asked for

consent to search car, R authorized and cop found pot. Holding: Cops are not required to tell a seized person he is “free to go” for his consent to search to be deemed

voluntary. Cop had PC to stop R for speeding Bustamonte: rejected a per se rule—knowledge of the right to refuse consent is not required. Unrealistic to req. cops to inform detainees that they are free to go before consent to search is deemed

voluntary. Valid consent = voluntariness (Determined by a totality-of-the-circumstances)

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[Concurring: Ginsburg] Common for OH cops to use a traffic stop as a prelude to an automobile search for drugs. State is free to impose greater restrictions on police activity than the Court holds necessary under Const.,

but the OH Sup. Ct. relied on the federal constitution, which does not require first-tell-ten-ask.

[Dissenting: Stevens] Would uphold OH judgment bc @ the time consent was given, it was the product of an unlawful detention.

o However, Const. does NOT req. officers to tell detained motorists they’re “free to go” Seizure of a person: reasonable person would have believed that he was not free to leave:

o Reasonable motorist in R’s shoes would have believed he had obligation to answer the “one question”/”before you get gone”

Reasonable person: would think investigative stop had not concluded bc cop continued to ask questions.

Illinois v. Caballes [2005]**Only drug sniffing dog, not bomb sniffing[Opinion: Stevens]Facts: C stopped for speeding, narcotics officer came and walked dog around car. Dog alerted @ the trunk, officers

searched the trunk, found pot, and arrested C. Entire stop lasted 10 mins.Holding: A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the

location of a substance that no individual has any right to possess does not violate 4th. Lawfuls seizure @ inception can violate 4th if its manner of execution unreasonable infringes interests

protected by Const.o Ticket issuing can become unlawful if prolonged beyond the reasonable time req. to complete that

mission. Off. conduct that does not compromise any legitimate interest in privacy is not a search subject to 4th.

o Possessing contraband is not legitimate Gov. conduct that only reveals possession of contraband does not compromise a legitimate privacy interest not a search

o Dog sniff was sufficiently reliable to est. PC to conduct full-blown trunk search Distinguish Kyllo: thermal imager could detect lawful activity, dog sniff does not Franks: Checkpoint + Dog = not okay (Edmond); Traffic point + Dog = Okay;

o LIMITING PRINCIPLE: Individualized suspicion

[Dissenting: Souter] Would hold that using the dog to determine the presence of pot in trunk was a search unauthorized as an

incident of the speeding stop and unjustified on any other ground. Dogs are not infallible…Place (held sniff test was not a search) should be reexamined

o Dogs can be used to justify a further/complete search of an enclosed area—1st step in a process that may disclose “intimate details”

Enforcing criminal laws does not, w/out more, justify suspicionless 4th intrusions (Edmond) Franks: Problem—court says it was not a search. It cannot be a per se rule.

[Dissenting: Ginsburg, Joined by Souter] Scope: seizure was unwarranted/nonconsensual expansion of the seizure for a routine traffic stop to a drug

investigation.o Cites Terry: investigation must be reasonably related in scope to the circumstances which justified

the inference in the first place.o By using dog, encounter becomes more adversarial and longer

Even if drug sniff is not a 4th “search,” it broadens the scope fo the traffic-violation-related seizure.

Chapter 8: Police Questioning

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

D’s state criminal trial.o Voluntariness is determined based on the totality-of-the-circumstances.

Spano v. New York [1959]**Indicted for murder when S confessed[Opinion: Warren]Facts: Warrant issued for S’s arrest in relation to a murder. S called close friend to tell about incident and

confessed. S surrendered to authorities, attorney cautioned S not to answer questions, and S refused to answer. S asked for attorney, but officers did not allow. Friend came into question S and said he was in trouble bc S lied, S gave statement and took S to bridge where he ditched murder weapon. 5th and 14th Amend. claims.

Holding: Under 14th, confession may not be upheld when suspect’s will was overborne by official pressure, fatigue and sympathy falsely aroused in a post-indictment setting.

Police were concerned w securing a statement, not solving a crime. Confessions must be examined w careful scrutiny Court uses totality-of-the-circumstances test to see if his will was overborne: foreign, no history,

emotionally instable, short education, nonbusiness hours, 8 hours long, and use of friend to solicit answers. Franks: police were adjudicating, not investigating.

[Concurring: Douglas, Joined by Black and Brennan] Important: accused was scheduled to be tried by judge/jury was instead tried in a preliminary way by the

police. Police made their own kangaroo court and denied S counsel before trial.

[Concurring: Stewart] Absence of counsel alone is enough to render it inadmissible under 14th. Emphasis: police were not questioning in relation to an unsolved crime, S was under indictment for first

degree murder.o Our system: indictment arraignment trial

Accused has a right to lawyer’s held @ every stage

Massiah v. United States [1964][Opinion: Stewart]Facts: P was indicted, obtained a lawyer, pled not guilty, and was released on bail. After release, cops put a listening

device in friends’ car and listened to a convo incriminating M. M contends his 5th and 6th rights were violated by the use of evidence against him of incriminating statements which gov. agents deliberately elicited after indictment and w/out counsel.

Holding: 6th attaches @ indictment and forbids agents from deliberately eliciting statements from D in the absence of counsel.

Spano: Concurrence said that the police deliberately elicited the confession after D had been indicted, when he was entitled to a lawyer’s help. This expands from DP to 6th Amend.

M was denied the basic protections of 6th when his incriminating words were used against him in trial, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.

o Rule must apply inside/outside police station. Police can continue investigation of the suspected criminal activities of a D and his partners, even though

the D has been indicted.o However, D’s incriminating statements, obtained by feds under these circumstances, cannot

constitutionally be used by the prosecution as evidence against him @ trial.

[Dissenting: White, Joined by Clark and Harlan]

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

Escobedo v. Illinois [1964]**Interrogation before indictment[Opinion: Goldburg]Facts: E arrested w/out warrant, interrogated, didn’t speak, and was released. Weeks later, accomplice told police

E fired fatal shots. E was arrested, told by cop that there was a good case against him and he might as well confess. E replied that he wanted a lawyer, lawyer made attempts to contact him. E was told he could go home if he pinned it on accomplice, so he made a statement under the assurance. E confronted accomplice and said “I didn’t shoot Manuel, you did it.”

Holding: When an investigation is no longer a general inquiry into an unsolved crime but begins to focus on a particular suspect, the Assistance of Counsel applies (shift from investigatory to accusatory—adversary begins to operate).

When E requested and was denied opportunity to consult w lawyer, it ceased to be a general investigation of an unsolved crime. E was the accused.

E was not informed of his absolute right to remain silent and cops urged him to make statement. Under IL law, admission of complicity in a murder plot = admission of firing fatal shots

o E was unaware—guiding hand of counsel was essentialo @ time, E had already been charged w murder

Law enforcement cannot depend on the confession, but should depend on extrinsic evidence secured through skillful investigation.

o System should not depend on citizens being unaware of their constitutional rights Franks: Custody but not formally charged:

o Does not matter that it’s pre-indictmento Once cops focus on an individual—6th Amend. rights

[Dissenting: Harlan] Rule interferes w legit methods of criminal law enforcement.

[Dissenting: Stewart] Case does not involve the deliberate interrogation of a D after the initiation of judicial proceedings against

himo This was a voluntary confession given during legit invest. Of an unsolved murder.o Court has never req. police to give Constitutional “advice” under circumstances like these.

[Dissenting: White, Joined by Clark and Stewart] Court is headed toward barring all admissions from an individual suspected of a crime, whether voluntary

or not. Rule is unworkable—Duty of counsel everywhere you go?? E’s lawyer had advised him not to answer previously—knew he didn’t have to Law enforcement will not be destroyed, but more difficult.

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Miranda v. Arizona [1966][Opinion: Warren]Facts: Ds were held incommunicado in a police-dominated atmosphere, resulting in self-incriminating statements

w/out full warnings of constitutional rights.Holding: When an individual is taken into custody or otherwise deprived of his freedom by the authorities in any

significant way and is subjected to questioning, procedural safeguards must be employed to protect the privilege against self-incrimination. He must be warned of right to remain silent, that anything he say can be used against him in a court of law, he has the right to the presence of an attorney, and if he cannot afford one, one will be appointed.

The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the D unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.

Custodial interrogation: questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

o What the court meant by “focusing on the accused” in Escobedo. Procedural safeguards: prior to questioning, person must be warned:

(1) he has the right to remain silent(2) any statement he does make may be used as evidence against him(3) he has a right to the presence of an attorney, either retained or appointed

D may waive affection of these rights—voluntarily, knowingly, and intelligently If D indicates @ any point he wants to consult w/ attorney before speaking—no questioning

o Fact that D answers some questions does not deprive right to refrain from answering further inquiries until he consults w attorney.

Custodial interrogation takes a heavy toll on indiv. liberty and weakness—invokes false confessionso Environment created to put suspect @ will of examinero Compels individuals to incriminate themselves

5th is available outside criminal court proceedings and protects persons in all settings where freedom of action is curtailed.

Constitution does not necessarily req. adherence to any particular solution.o Congress and states can find ways to protect rights/promote enforcement of criminal laws

Court will not assess whether D was aware of rights before warning was given Failure to ask for a lawyer does not constitute a waiver Does not mean there must be a “station house lawyer” present @ all times Evidence that accused was threatened, tricked, or cajoled into a waiver will show the D did not voluntarily

waive his privilege. “Prophylactic” in nature, serves the 5th but sweeps more broadly than 5th itself. You can violate Miranda

w/out violating 5th…not all statements obtained in violation of Miranda are “compelled.”

[Dissenting: Clark] Police manuals are not universally used Brutality is rare exception Majority goes too far too fast—lack of knowledge of practical operation of reqs. Would follow DPC of 5th and 14th

[Dissenting: Harlan, Joined by Stewart and White] New rules do not guard against police brutality or other forms of coercion, rather discourage confessions. Not in 5th—does not apply to police station. Rule derives from lang. in 6th which has no bearing on police

interrogation.o 5th does not forbid all pressure to incriminate one’s self

Policy: rules impair and frustrate important instrument of law enforcement—will decrease confessions

[Dissenting; White, Joined by Harlan and Stewart] Wants ToTC test and that incriminating statements can be made voluntarily

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Under new rule, a criminal can voluntarily make incriminating statements that will be invalid because the officer did not read the criminal his Miranda rights

Majority makes false assumption compulsion is inherent in custodial surroundings & no statement made while in custody can be the product of free choice unless the protective devices (warnings) as described by the court are used

Could prevent coercion in other ways – time limits for interrs, having independent observers present, require transcripts of the interr to see if coercion took place

When confessions are corroborated with physical evidence they are the most reliable means of convicting a criminal with certainty

Last, this rule may make it more difficult for suspects to exonerate themselves

Franks: all four Ds were convicted on remand…not necessarily letting the person go. 5th and 6th are meaningless if we aren’t informed

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Chapter 9: The Right to Counsel “In all criminal prosecutions, the accused shall enjoy the right to…the Assistance of Counsel for his defence” Violated if the Gov. deliberately elicits statements from a suspect in the absence of her counsel or valid

waiver of the right. Attaches when the adversarial judicial criminal proceedings commence—when a suspect is arraigned or

indicted.

A. “Deliberately Elicited”Brewer v. Williams [1977][Opinion: Stewart]Facts: Cops arrested former mental patient for murder. He was arraigned before a judge after turning himself in.

Lawyer was not allowed to go in police car, so he repeatedly instructed cops not to question suspect. Cop gave “Christian burial speech” and told suspect he didn’t want an answer, just wanted him to think. W showed police where body was.

Holding: Right to counsel under 6th and 14th means a person is entitled to a lawyer’s help @ or after the time judicial proceedings are initiated against him.

Judicial proceedings had started before car ride—warrant, arraignment, committed to confinement in jail Detective deliberately elicited information from W Massiah applies: once adversary proceedings have commenced against an individual, he has a right to legal

representation when the government interrogates him.o W was entitled to assistance of counsel guaranteed by 6th and 14th

Waiver: State must prove an intentional relinquishment or abandonment of a known right or privilegeo Not just comprehension, but relinquishmento Despite W’s assertions of his right to counsel, Detective continued to elicit incriminating statements

Body may be admissible on the theory that it would have been found anyways w/out incriminating statements.

Franks: Right to counsel has attached @ this point and D did not waive his right.

[Concurring: Marshall] Good police work is different from catching the criminal @ any price.

o “in the end life and liberty can be as much endangered from illegal methods used to convict those though to be criminals as from the actual criminals themselves.” Spano v. NY.

Officer knowingly isolated W from lawyers to persuade him to give incriminating evidence—not good police practice.

If W goes free, it will be bc detective intentionally denied W his rights and risked conviction.

[Concurring: Powell] Right to assistance of counsel may be waived after it has attached, w/out notice to or consultation w

counsel. However, petitioner did not prove W on his own initiative confessed to the crime.

[Concurring: Stevens] State cannot dishonor its promise to the lawyer if we are concerned about individual’s effective

representation by counsel.

[Dissenting: Burger] W waived his 5th right to silence/6th to counsel—can do so w/out attny present Cop prompted confession by a statement, not an interrogation Irrationality of applying exclusionary rule to this case:

o Williams’ disclosures were voluntary Had abundant knowledge of right to counsel/silence

o Exclusionary rule should not be applied to non-egregious (knowingly bad) police conduct

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

[Dissenting: White, Joined by Blackmun and Rehnquist] Question is about waiver—W knew of his right not to say anything w/out counsel and relinquished right

when the car approached the place where he hid victim’s clothes.o Exercise of his own free willo Even if influenced by speech, decision to talk was not the product of an overborne will, not coercive,

and was knowing/intentional. Majority rests on fact that W “asserted” right to counsel, then relinquished w/out counsel

o Waiver is not a formalistic concept—shown when facts est. the accused knew of right and intended to relinquish.

[Dissenting: Blackmun, Joined by White and Rehnquist] Rule is far too broad—when there is no interrogation, statements should be admissible as long as they are

truly voluntary.

Kuhlmann v. Wilson [1986][Opinion: Powell Pts. I, IV, V]Facts: W arraigned and placed in cell w inmate who agreed to act as a police informant. W made incriminating

statements that informant reported to police. Informant was told not to ask questions, but to “keep his ears open.”

Holding: A defendant’s volunteered statements to a jailhouse informant who was placed in close proximity but made no effort to stimulate conversations about the crime charged are admissible.

Massiah and Spano: once 6th right to counsel attaches, he is denied that right when federal agents “deliberately elicit” incriminating statements from him in the absence of his lawyer.

o D does not make out violation of right by showing an informant reported his incrim. statements to police. Rather, must show police and inform. took action beyond merely listening, that was designed deliberately to elicit incriminating remarks.

Informant did not ask questions, only listened

[Concurring: Burger] Vast difference btw placing and ear in a suspect’s cell and placing a voice in the cell to encourage convo for

the ear to record. Thinks it is an abuse of habeas.

[Dissenting: Brennan, Joined by Marshall] 6th guarantees an accused after the initiation of formal charges the right to rely on counsel as the medium

btw him and the Stateo State knowingly circumvented D’s right to counsel by deliberately eliciting inculpatory admissionso Accused was incarcerated and susceptible to the ploys of undercover Gov. agentso Although informant was not the immediate cause of W’s admission, the deliberate-elicitation

standard requires consideration of the entire course of Gov. behavior State intentionally created situation.

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B. “Commencement of Adversarial Proceedings”Rothegery v. Gillespie County [2008][Opinion: Souter]Facts: Background check wrongly showed R had a record. He was arrested as a felon in possession of a firearm.

Cops didn’t have warrant, so they brought in front of Magistrate, who told him the accusation, set bail, and committed him to jail. R was released for posting bond, but had no $ for a lawyer. R made several oral/written requests for lawyer, no response. 6 months later he was indicted, rearrested, and put in jail for 3 weeks. Finally got a lawyer who confirmed he was never convicted of felony. 1983 action against county for violating 6th right to counsel.

Holding: A criminal D’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of 6th right to counsel.

6th triggered @ initial appearance before a judicial officer: “preliminary arraignment” or hearing when the magistrate informs the D of the charge in the complaint and conditions of pretrial release.

o TX 15.17 counts—first formal proceeding Should have appointed lawyer earlier and avoided 3 weeks in jail Once attachment occurs, accused is entitled to presence of appointed counsel during any “critical stage” of

post-attachment proceedings.

[Concurring: Alito, Joined by Chief and Scalia] Three ways 6th defines right to counsel:

o Who may assert the right (“the accused”)o When the right may be asserted (“in all criminal prosecutions”)o What the right guarantees (“the right…to have the Assistance of Counsel for his defense”)

6th requires the appointment of counsel after the D’s prosecution has begun and then as necessary to guarantee the D effective assistance @ trial…any pretrial “critical stage”

Concerned w the countries resources Distinguishes btw right and stages

o Court does not hold there was a 6th violation, but that the right to counsel “attached” @ D’s first court appearance. Just bc right attached does not mean he was denied right to counsel bc he may not have been refused counsel during a critical stage of the prosecution.

[Dissenting: Thomas] “Prosecution”: manner of formal accusation—when 6th attaches

o Framers said “criminal prosecutions,” not criminal proceedings or criminal cases 5th:“criminal cases”

o Appearance before magistrate is preliminary to the prosecution Affidavit of PC is NOT a formal accusation constituting criminal prosecution 6th right to counsel is “offense specific” Petitioner’s appearance was not an “adversary” proceeding 6th protects against the risk of erroneous conviction, not the risk of unwarranted prosecution

Cruel Trilemma: Choice of 3 options, all result in punishment based on questioning(1) Incrimination(2) Perjury(3) Contempt

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Chapter 10: The Privilege Against Compelled Self-Incrimination Voluntariness factors:

o Actual or Threatened use of force--confession obtained by threatened or actual use of violence is inadmissible.

o Psychological pressures—coercion can be mental as well as physical Factors: length of custodial detention, length of interrogation itself, daytime/nighttime,

whether it was incommunicado, and personal characteristics of suspect (age, intelligence, level of education, and prior police experience).

Can find involuntary bc the individual’s will was overborne or bc the interrogation techniques were morally unacceptable.

o Promises of Leniency and threats of harsh legal treatmento Deception—cop displaying false sympathy for the accused, falsely claiming to have incriminating

evidence, or falsely asserting that a co-D has implicated the accused in a crime. Considerable police deception is admissible—case law is not consistent, but deception alone

will usually not invalidate a confession. Remedies for violation of the right:

o Must be state action!! (Connelly—3rd party does not make evidence inadmissible under DPC).o Obtaining versus using the statement—exclusion of a confession obtained involuntarily is not a

remedy for a constitutional violation, the ER is part of the RIGHT enforced by the DPC. ER is broader than 4th and 6th when applied to 5th

A. “Compelled”Colorado v. Connelly [1986]**Voluntariness versus official coercion[Opinion: Rehnquist]Facts: C told a uniformed, off-duty officer he murdered someone and wanted to talk about it. Cop told C he had

right to remain silent and C told him he understood and proceeding to talk. C took cops to location of crime and later told officers “voices” told him to confess.

Holding: Coercive police activity is a necessary predicate to the finding that a confession is not “voluntary” w/in the meaning of the DPC of 14th.

Absent police conduct causally related to the confession, there is no basis to conclude any state actor has deprived a criminal D of 5th DPC

Link btw coercive activity of the State and the resulting confession by a Do “Voluntariness” does not include a D’s motivation for speaking/actingo Suppressing evidence would serve no purpose in enforcing constitutional guaranteeso State of mind—State law question, not Constitutional question

Not a coercion case, but the result came out the way it did bc he was being coerced by GOD not by the POLICE OFFICER.

Constitution leaves the reliability of the statement to be resolved by state laws concerning evidence.

[Concurring in the Judgment in part and dissenting in part: Stevens] Pre-custodial statements were involuntary, but did not violate 5th bc they were not the product of state

compulsion.o May be so unreliable that they would not support a conviction, but their use is not fundamentally

unfair or a denial of DPC C was not competent to waive his 5th rights—relationship changed after handcuff/taking into custody

o Wavier is voluntary if it’s an exercise of “free will”o Custodial interrogation was presumptively coercive—post-custodial statements are inadmissible

[Dissenting: Brennan, joined by Marshall] Believes the use of a mentally ill person’s involuntary confession is antithetical to fundamental fairness of

DPC

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Absence of police wrongdoing should not determine the voluntariness of a confession, should be a totality-of-the-circumstances surrounding the confession

o Police overreaching is an element, but free will is also a concerno Traditionally use TOTC including motivation and competence of D to determine voluntariness

Concerned about reliabilityo In accusatorial system, confessions carry heavy weight bc it lowers state’s burden of proof

Tips the balance against the D Must be careful about confession’s reliability

No corroboration of D’s confession

B. “Witness”Schmerber v. California [1966]**What counts as testimony?[Opinion: Brennan]Facts: Physician drew S’s blood to test BAC, but S did not consent to test. S claimed it violated 5th privilege against

self incrimination, 6th right to counsel, and 4th unreasonable search/seizure.Holding: (1) Privilege against self-incrimination is not available where accused did not have to testify against

himself in a testimonial or communicative nature; (2) Withdrawal of blood was not an unreasonable search/seizure bc there was PC for the arrest and emergency for the destruction of evidence. Also the blood was taken in a reasonable manner.

5 th : Compelled to be a witness against himself? NO Officer directed physician to administer test over S’s objection compulsion BAC is evidence of criminal guilt Privilege is in regard to communications or testimony, not real or physical evidence

o However, lie detector test is essentially testimonialo Blood test evidence is an incriminating product of compulsion, but not a testimony or

communicative act or writing—admissible. If you want it to come in, make it non-testimonial. Then, you did not say anything or give testimony at all.

4 th : Whether police were justified in req. S to submit to blood test and whether means were reasonable. YES. 4th constrains against intrusions that are not justified in the circumstances or which are made in an

improper manner. PC for officer to arrest/charge S

o Smelled liquor on S’s breath, bloodshot eyes—suggests success/relevance of blood test Officer might reasonably have believe it was an emergency—threat of destruction of evidence

o Attempt to secure evidence of BAC was an appropriate incident of S’s arrest. Test was reasonable—commonplace, minimal extraction, performed reasonably @ hospital

o Different if administered by policy in stationhouse—risk of infection/pain

[Concurring: Harlan, Joined by Stewart] Would go further and hold the case does not implicate 5th.

[Dissenting: Black, Joined by Douglas] Taking blood is testimonial and communicative—person who extracted gives information about BAC,

purpose is to communicate that S was drunk.o Result of test offered as testimonyo Privacy claim is linked to 5th—later becomes 4th

[Dissenting: Douglas] 5th marks a “zone of privacy” which the Gov. may not force a person to surrender, 4th gives right to be

secure in your persons—forcible bloodletting invades these.

[Dissenting; Fortas] Under DPC, State has no right to extract blood over accused’s protest.

o Act of violence

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C. Limits on the PrivilegeBaltimore Dept. of Social Servs. v. Bouknight [1990]**Regulatory/Spec. Needs S[Opinion: O’Connor]Facts: Child hospitalized for abuse by mother. Social Services got an order to put the child in foster care. B got

temporary custody w conditions. B violated conditions, Services petitioned court to put the child into foster care. Court granted the petition, but B would not produce the child. Court found B in contempt until she produced child. B said producing the child would violate 5th “witness against himself.”

Holding: Custodian of a child may not invoke the 5th privilege against self-incrimination to resist an order of the juvenile court to produce the child when the State’s regulatory requirement does not compel incriminating testimony or aid a criminal prosecution.

5th implicated bc the act of production testifies to the existence, possession, or authenticity of the things produced.

o Cannot claim 5th based upon incrimination that may result from the contents or nature of the thing demanded.

Here, what examination of child would reveal. 5th cannot be invoked to resist compliance w a regulatory regime

o B assumed custodial duties—submitted to regulatory systemo Once child was adjudicated a “child in need of assistance”—care/safety was part of State’s

regulatory interests.o Social services efforts are not focused on criminal conduct: concerned for the child’s safety

If person complies w regulatory requirement and subsequently faces prosecution 5th protections may be available.

[Dissenting; Marshall, Joined by Brennan] Would hold that the admission of possession/control presents a threat of self-incrimination—link in chain

of evidence to est. guilt. As mother, B retained legal custody of child, does not transform it into custody conferred by State.

o B is not acting on behalf of the State Would apply analysis to target D’s particular claim of privilege, precise nature of testimony sought, and the

likelihood of self-incrimination caused by D’s compliance.o Individualized inquiry allows privilege to turn on concrete factso If State demands testimony explicit grant of immunity to B

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Chapter 11: Administering MirandaA. Custody, Interrogation, and Incrimination Oregon v. Mathiason [1977]Facts: Police suspected M of a burglary. They tried to call him 3-4 times and left a card at his apartment asking to

set up a meeting. M called officer and scheduled a meeting. Cop lied and said they found M’s fingerprints @ the scene and M confessed w/in 5 minutes. Cop Mirandized M and took a taped confession. M was released from the station.

Holding: A suspect who voluntarily comes to police station in response to police request is normally not in custody and is not entitled to Miranda warnings.

Not “custodial interrogation”—M’s freedom to leave was not restrictedo Came voluntarily, informed he was not under arrest, M left after interviewo Noncustodial situation is not made custodial bc of “coercive environment”

By nature, an interview of one suspected of a crime by a police officer will have coercive aspects.

Police do not have to Mirandize everyone they question Just bc questions are in station or person is suspect does not mean “in custody”

Officer’s false statement has nothing to do w custody.

[Dissenting: Marshall] M interrogated behind closed doors, had been named by the victim as a suspect, and told by police they

believed he was involved.o M could have believed he was not free to leave

Case was coercive—requires Miranda warningso Interrogated in “privacy” in “unfamiliar surroundings”o Investigation had focused in on M

[Dissenting: Stevens] M was on parole @ time of interrogation—State has greater power to question

o Parolee does not have choice btw silence/responding to police interrogationo Parolee is technically in legal custody continuously until his sentence is served—should always be

Mirandized.

Berkemer v. McCarty [1984][Opinion: Marshall]Facts: Cop pulled M over for sloppy driving, asked him to get out of the car, and subjected M to field sobriety test. M

failed the test and told officer he had three beers and smoked pot. Cop arrested M and took him to jail where he conducted a breathalyzer test. Test did not detect alcohol. M filled out a form, but was never Mirandized.

Holding: (1) A person subjected to custodial interrogation is entitled to the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which he was arrested…Miranda applies to misdemeanors; (2) Roadside questioning of a motorist detained pursuant to a routine traffic stop is not a “custodial interrogation.”

Traffic stop curtails “freedom of action”—few motorists would feel free to leave w/out being told they cano Seizure in meaning of 4tho Mitigating danger a person to speak where he would otherwise not do so freely:

Presumptively temporary and brief Motorist does not feel completely @ mercy of police—public, diminishes fear of abuse

Rationale: pressure inherent in a custodial interrogation are not present in traffic stops…no coercive environment.

Custody did not happen until the arrest.

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

constitutional question in advance of the necessity of deciding it.

Rhode Island v. Innis [1980][Opinion: Stewart]Facts: I arrested for shooting a cab driver and was Mirandized. I said he understood his rights and wanted to speak

w lawyer. He was put in the officers’ car and the officers were told not to question/coerce him in any way. Officers talked amongst themselves, saying they would feel bad if a handicapped girl found the gun. I told officers to turn the car around and he would show them the gun.

Holding: Interrogation under Miranda refers to express questioning and any words/actions by police that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Miranda safeguards not required where suspect is taken into custody, but where a suspect in custody is subjected to interrogation.

o Interrogation must be a measure of compulsion above and beyond that inherent in custody itselfo Come indo play whenever a person in custody is subjected to either express questioning or its

functional equivalento Applies to words/actions by police that the police should know are reasonably likely to elicit an

incriminating response from the suspect (Objective Test) I was not interrogated w/in meaning of Miranda—not express questioning, officers should not have known

their convo would elicit an incriminating response from I.o Few off-hand remarks, not particularly evocative.

[Concurring in Judgment: Burger] Result is consistent w/ Miranda, so he concurs Reasoning introduces uncertainty—few cops can make the evaluation necessary to the susceptibility of the

accused.

[Dissenting: Marshall, Joined by Brennan] Agrees w definition of “interrogation” regarding objective inquiry into police conduct However, thinks it was an interrogation:

o Strong appeal to I’s conscience about innocent schoolgirl. Could be expected to produce response.o Does not matter that it wasn’t addressed to I—officers were in close quarters and knew I would

hear.

[Dissenting: Stevens] For full 5th protection, interrogation must include any police statement/conduct that has the same

purpose/effect as a direct question. Court’s test creates an incentive for police to ignore suspect’s invocation of rights and continue to extract

info from him.

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New York v. Quarles [1984]**Public Safety Exception[Opinion: Rehnquist]Facts: Woman told officers we was raped, described suspect, and told officers he just entered the grocery. Officer

spotted Q who matched the description, ordered him to stop, and frisked him which led him to discover an empty gun holster. After handcuffing Q, officer asked where the gun was and Q told him. Officer then retrieved the loaded gun, placed Q under arrest, and Mirandized him.

Holding: Overriding considerations of public safety justify an officer’s failure to provide Miranda warnings before asking questions devoted to locating an abandoned weapon.

“Public Safety” Exception: situations where police officers ask questions reasonably prompted by a concern for the public safety.

o Does not depend upon the motivation of individual officers involvedo Does not depend on post hoc findingso If police were required to Mirandize, Q might be deterred from responding—cost would be more

than failure to obtain evidence useful in conviction, it would be danger to the public. Need for answers to questions in a situation posing a threat to the public safety outweighs the need for the

prophylactic rule protecting 5th’s privilege against self-incrimination.o Absent coercion by the officer, there is no need to exclude the evidence in the future.

Police will be able to distinguish btw Qs necessary to secure their own safety/safety of public and Qs designed solely to elicit testimonial evidence from a suspect.

Here: question only pertained to locating the missing gun and after gun was secured, warnings were given before investigatory Qs about ownership/place of purchase.

Franks: balancing test is problematic for a Constitutional righto Beginning of the end of Miranda as a constitutional right.o Not really a test, more of a conclusion—the cops will know

[Concurring in the Judgment in part and Dissenting in Part: O’Connor] Court did not apply sufficient justification to depart from Miranda Would require suppression of the initial statement—“the gun is over there”

o However, Miranda does not req. exclusion of the nontestimonial evidence derived from an informal custodial interrogation—gun can go into evidence.

“Public Safety” exception too blurryo Police will benefit bc court will find exigency excused Miranda failureo Police will suffer bc what they though was exigency, a court will view differently and exclude

admissions Miranda does NOT prevent police from asking questions, rather it decides who shall bare the cost when

such Qs are asked/answered: the Stateo Can ask question, but will be excluded @ trial

[Dissenting; Marshall, Joined by Brennan and Stevens] Man was arrested under suspicion of possessing a firearm in violation of NY law—suspect incriminated

himself by locating the gun. Officers had no legit reason to interrogate suspect w/out advising rights

o Public was not @ risk: Q was in a condition of physical powerlessness, no suspected accomplice, and situation was

under control. Middle of the night—store was deserted

Pissed off @ Court: “More cynical observers might well conclude that a state court’s findings of fact ‘deserve a ‘high measure of deference’’ only when deference works against the interests of a criminal defendant.”

Police officers will not be able to apply exception Miranda was not a decision about public safety, it was a decision about coerced confessions.

o Public safety exception allows police to coerce Ds into making involuntary statements.o Public safety can be protected w/out violating 5th—unconsenting questioning may take place, but

the statements cannot be used @ trial.

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

Illinois v. Perkins [1990]**Undercover Agent Exception[Opinion: Kennedy]Facts: P told fellow inmate about a murder he committed. Inmate told police and the details fit w an unsolved

murder. Police placed an undercover agent in the cell w P and inmate to elicit details of crime. Cop asked P if he had ever “done” anyone, P said he had and told details of the murder. P was not Mirandized.

Holding: Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement.

Concerns of Miranda: police-dominated atmosphere, compulsion, and coercive atmosphere.o Just bc suspect is in custody does not mean undercover Qs could not happeno Does not forbid strategic deception by taking advantage of a suspect’s misplaced trust

Ploys to mislead/lull into a false sense of security are not w/in Miranda P viewed cellmate-agent as an equal…showed no hint of being intimidated

o Suspect was incarcerated, but detention, whether or not for the crime in question, does not warrant a presumption that the use of an undercover agent makes the confession involuntary.

Distinguish from Massiah: those are 6th, which attaches after charges have been filed. In this case, no charges were filed.

Cannot be coercive bc there was no obligation to respond; not a police dominated atmosphere.

[Concurring: Brennan] Was not an interrogation or inherently coercive environment to req. Miranda. Method used: State can exploit vulnerability bc it has complete control over suspect’s environment. Deliberate use of deception/manipulation by police raises Qs about whether P’s will was overborne.

o Lower court should use TOTC to see if DPC was violated.

[Dissenting: Marshall] Familiarity w confinement does not change incarceration into a noncustodial arrangement Officer asked questions designed to elicit specific info about victim, scene, weapon, motive…

o Not a conversation, but an interrogation likely to evoke an incriminating response.o Interrogation + Custody = Miranda

Police took advantage of p’s vulnerability—compelled him to make an incriminating statemento Compulsion not eliminated by suspect’s ignorance of interrogator’s true identity.

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B. Invocation and Waiver Knowing, Intelligent, and Voluntary

Michigan v. Mosley [1975][Opinion: Stewart]Facts: Tip implicated M and three others with robberies. Cop arrested M, brought him to Bureau, and Mirandized

him. M read and signed notification certificate. Cop questioned M, who said he did not want to answer robbery questions, interrogation ceased. Two hours later, different cop questioned M about a shooting, which M had not been arrested/interrogated about, so M was Mirandized again and signed form. M made an implicating statement.

Holding: Once suspect invokes right to silence and police cease the interrogation, police may resume questioning when it involves a different crime, a significant period of time has passed, and fresh Mirandas have been given.

Once suspect invokes right to remain silent—“the interrogation must cease.”o One construction: once suspect invokes, he may never by subjected to custodial interrogation by

any police officer @ any time or place on any subject.o Other construction: any statement after invocation of the right to silence is the product of

compulsion and should be excluded from evidence, even if volunteered by person in custody w/out further interrogation.

o Other construction: immediate cessation of questioning, resumption of interrogation after a momentary break.

Miranda does not create a per se proscription of indefinite durationo Admissibility depends on whether the right to cut off questioning was “scrupulously honored”o Here: orally acknowledged he understood, signed waiver, ceased, two hour break, new officer,

different location, unrelated murder, and reminded of rights again. Officer did not ask about robbery, only murder. Police honored the decision

Leaves a lot of Qs open, if any of these things aren’t present, is it a violation of 5th?

[Concurring: White] Sufficient to exclude all confessions which are the result of involuntary waivers, does not depend on a

period of time that must pass.

[Dissenting: Brennan, Joined by Marshall] Standard is vague/ineffective Proposed standard: resumption of questioning should happen upon appointment/arrival of counsel.

Edwards v. Arizona [1981][Opinion: White]Facts: E arrested pursuant to a warrant. E was Mirandized, said he understood his rights, and was willing to be

questioned. Cops told E another suspect implicated him in crime, E denied it and gave a taped alibi. Cop proposed a deal, E said he wanted an attorney before making the deal. Questioning ceased and E was taken to jail. Next morning detectives came to talk w E, guard said he had to talk. Detectives Mirandized E ad he listened to implicating tape. E said he would make a statement w/out being recorded and implicated himself.

Holding: Once a suspect requests his right to counsel, all questioning must cease until counsel is present or the suspect voluntarily initiates the interaction. Presumption of involuntariness.

Once accused invokes the right to counsel, you cannot question until counsel is present, unless valid waiver Valid waiver: must be voluntary and constitute a knowing and intelligent relinquishment or abandonment

of right.o Not shown by responding to further interrogation, even if advised of rights againsto Once invoked, accused can waive by initiating further communication, exchanges, or convos w

police.

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Having exercised his right on J 19th to have counsel present, E did not validly waive it on the 20th during second custodial interrogation.

Franks: no longer Escobedo Rule (6th) for right to counsel; assertion of right must be unambiguous

[Concurring: Burger] Inquiry is whether the resumption of interrogation is a result of a voluntary waiver.

o Should be resolved as an intentional relinquishment/abandonment of a known right or privilege. Depends on facts and circumstances surrounding the case.

o Enough that guard said E had to speak, not voluntary

[Concurring in the result: Powell, Joined by Rehnquist] Does not join the courts opinion bc he does not know what it means Whatever the right, the standard for waiver is whether the actor fully understands the right in question and

voluntarily intends to relinquish it…not initiation Once warnings are given and right to counsel is invoked, whether a suspect desires to talk w/out counsel is

a question of fact to be determined by TOTC.

Maryland v. Shatzer [2010][Opinion: Scalia]Facts: S in jail for unrelated sexual-abuse charge, cop came to ask questions, Mirandized him, and S signed waiver

of rights. S was confused that questioning was about abuse of another crime, sexual assault of his son. S declined to speak w/out attorney, and investigation was closed. Two and a half years later, different cop went back for questioning, Mirandized S, and obtained a written waiver. Interrogation lasted 30 minutes and S agreed to submit to polygraph. S was re-Mirandized and failed polygraph. Said “I didn’t force him. I didn’t force him.” S requested an attorney.

Holding: Break-in-custody for more than two weeks btw first and second attempts @ interrogation ends the presumption of involuntariness of waiver. Returning to the general population constitutes a break-in-custody.

Edwards rule is a judicially prescribed prophylactic, so only applies where benefits outweigh its costs:o Benefits: presumption of involuntariness conserves judicial resources, preserves integrity of an

accused’s choice, and prevents police from badgering a D. When suspect is released, he can go to normal life before interrogation, and consult w

attorney, family, and friends.o Costs: exclusions of voluntary confession @ trialo Needs point of termination, otherwise it would be eternal: two weeks.o 14-day limitation eliminates coercive effect

Lawful imprisonment does not create the coercive pressures of Mirandao Accustomed surroundings and some freedoms, communication w others.

[Concurring in part and Concurring in the Judgment: Thomas] 14-day test is an arbitrary number.

[Concurring: Stevens] Time-based rule disregards the compulsion caused by a subsequent interrogation of a suspect who was

told that if he requests a lawyer, one will be provided for him.o Suspect will think the cops lied and he doesn’t have a right to a lawyero May think further objection is futile and an interrogation is the only way to end interrogation.

Court does not explain why police cannot honor their commitment to counselo 14-day break does not change the fact that custodial interrogation is inherently compellingo We do not know the defendant has been able to seek advice

Problem w rule exacerbated when suspect is in prisono Home ≠ prison cell

Prison guards do not look kindly upon prisoners who don’t cooperate w police.

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Concurs in judgment because 2 ½ year break in custody is a basis for treating the second interrogation as no more coercive than the first.

o When suspect is left alone for a significant period of time, he is not as likely to draw conclusions when police interrogate him again.

Berghuis v. Thompkins [2010][Opinion: Kennedy]Facts: T was involved in a mall shooting and fled. Year later, he was found in OH and was to be transferred back to

MI. Two cops interrogated him for three hours in a 8 x 10 room while T sat @ school desk. Cops gave written Miranda statement and T read 5th warning aloud, cops read the rest, T declined to sign the form that he understood his rights. 2 hours 45 mins into interrogation T said “Yes” when cop asked if he prayed to God to forgive him for shooting a boy. T said he invoked his right to remain silent by remaining silent, that he never waived his right to remain silent, and that police should not have begun questioning him until they understood whether he wished to invoke/waive rights.

Holding: A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to police.

Cannot invoke privilege to silence by staying silent for a sufficient period of time.o Suspect must waive unambiguouslyo If suspect makes a statement that is ambiguous or equivocal or makes no statement cops not req.

to end interrogation or ask questions to clarify.o Policy: results in an objective inquiry that avoids difficulties of proof and provides guidance to

officers on how to proceed in the face of ambiguity. Waiver must be voluntary—product of a free and deliberate choice rather than intimidation, coercion, or

deception—and made w a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.

o Burden on gov. to demonstrate waiver—preponderance of the evidenceo Implicit waiver is sufficient to admit a suspect’s statement to evidence

Can be implied through D’s silence, coupled w an understanding of his rights and course of conduct

o Here: T waived his right to remain silent—understood his rights and chose not to rely on them when he spoke.

Written copy, T could read/understand English, given time to read, read 5th aloud (aware his right would not dissipate after time), and officer read rights aloud.

Answering question is a course of conduct indicating waiver of the right to remain silent. If T wanted to remain silent—he would have said nothing Police not req. to rewarn suspects

No evidence of coercion—standard-sized room, length does not mean coercion, and religious reference does not make it involuntary.

Police do not have to obtain a waiver before questioningo Can infer waiver from the actions and words of the person interrogatedo Miranda met when suspect receives warnings, understands them, and has an opportunity to invoke

the right before giving any answers/admissions. T never explicitly invoked his right to silence. Court says not responding does not invoke. T did not

explicitly invoke his right to silence a + he talked later…so he waived his rights.o Behavior constituted waiver

[Dissenting: Sotomayor, Joined by Stevens, Ginsburg, and Breyer] Prosecution has a “heavy burden” in proving waiver—did not meet it

o Butler is on point—a court must presume that a D did not waive his rightso Refusal to sign evinces an intent not to waive rightso 2 hours 45 minutes of silence—strong evidence against waiver

Does not agree w Court’s ruling that a suspect must unambiguously invoke right to silence by speakingo Invites cops to question suspect at length eventually hoping to get a response

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o Ambiguous invocation of right to remain silent—Mosley rule: The suspect’s right to cut off questioning must be scrupulously honored

When statements/actions can only be understood as invocation of right to remain silent, police should terminate questioning.

C. Trickery Moran v. Burbine [1986][Opinion: O’Connor]Facts: B arrested for burglary, confidential informant implicated him in murder. B was Mirandized, but refused to

execute a written waiver. B’s sister obtained counsel for him for the breaking and entering charge, unaware of the murder suspicion. Lawyer called police and was told questioning was done for the night. Less than an hour later, B was subjected to a series of interviews, Mirandized 3x and signed written form that he did not want attorney before he gave statement. B had access to telephone. B signed 3 statements admitting to the murder.

Holding: A prearraignment confession preceded by a valid waiver does not need to be suppressed bc the police misinformed an inquiring attorney about plans concerning the suspect or bc the police failed to inform the suspect of the attorney’s efforts to reach him.

Valid waiver:o Voluntary —product of a free and deliberate choice, rather than intimidation, coercion, or

deception.o Knowingly and Intelligently —made w full awareness of the nature of the right abandoned and the

consequences of the decision to abandon it.o TOTC surrounding interrogation

B validly waived right to counsel Events outside the presence of the suspect and entirely unknown to him have no bearing on the capacity to

comprehend and knowingly relinquish constitutional right.o Would have waived rights even if lawyer did not callo Additional info would have be useful, but Constitution does not require police to supply a suspect w

a flow of info to help him calibrate his self-interest. Once it is determined suspect’s decision was uncoerced, that he knew he could stand mute and req. a

lawyer, and he knew of the State’s intention to use statements to secure a conviction waiver is valid as a matter of law.

State of mind of police is irrelevant to voluntariness of respondent’s election to abandon his rights. Purpose of Miranda is to dissipate compulsion inherent in custodial interrogation and guard against

abridgement of 5th—rule focusing on how cops treat lawyers has no relevance. 6th does not apply bc statements took place before the initiation of adversary judicial proceedings 14th DPC Claim: conduct falls short of the kind of misbehavior that so shocks the sensibilities of a civilized

society as to warrant federal intrusion into the criminal processes of the states.

[Dissenting: Stevens, Joined by Marshall] Incommunicado questioning usually is the highest level of deception

o Violates the ABA’s Standards for Criminal justiceo State courts + legal profession’s standards conclusion that police may not interfere w

communications btw an attorney and the client whom they are questioning Failure of cops to tell B of the attorney call makes waiver invalid

o Heavy burden of waiver on governmento Miranda warnings are necessary, but not sufficient for a valid waiver…no difference btw deceptive

misstatement and concealment of a critical fact. Balancing approach is misguided—interest in prompt justice to a murder/rapist always outweighs value of

procedural safeguards. Deceiving lawyer (client’s agent) = deliberate deception of client himself

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Colorado v. Spring [1987][Opinion: Powell]Facts: S arrested during an undercover firearms purchase and was Mirandized twice. S signed a waiver. Cops asked

S about firearms transactions that led to arrest, then asked if he had a criminal record and if he ever shot anyone else. S said he shot a guy once. Month later, cops Mirandized S and obtained waiver, S confessed to murder and did not request counsel. S read, edited, and signed statement.

Holding: A suspect’s awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his 5th privilege.

S knowingly and intelligently waived his right. Cops not req. to tell suspect the subject matter of an interrogation

o No trickery to invalidate waivero Some affirmative misrepresentations invalidate waiver—think Spano—but not here

[Dissenting: Marshall, Joined by Brennan] TOTC: coercive aspects combined w element of surprise rise to a level of deception.

o Waiver is invalido Reasonable to conclude had S known about fed’s intent to ask questions about murder, he would

not have consented to interrogation w/out attorney.

Missouri v. Seibert [2004][Judgment of the Court and an Opinion: Souter, Joined by Stevens, Ginsburg, and Breyer]Facts: S was arrested, taken to police station, and questioned w/out Miranda for 30-40 mins. S gave incriminating

statement, then she was given 20-minute break. Cop turned on tape recorder, Mirandized S, and obtained a signed waiver. Cop resumed questioning and S repeated her confession. Cop did not tell her the previous statement could not be used.

Holding: When question-first tactic produces a confession prior to Miranda warnings, a repeated confession will be inadmissible unless a reasonable person would have perceived the second line of questioning as a new and distinct experience.

Does question first warn later function “effectively” as Miranda requires?o Must put suspect in position to make an informed choice—otherwise second stage continuous w

first.o Warnings are ineffective in preparing suspect for successive interrogation.

Suspect does not believe he has a genuine right to remain silent—already confessed Police did not advise her that the prior statement could not be used Impression that the questioning was a continuation of earlier questioning—reasonable to regard 2 sessions

as continuum—do not convey message that she had a choice about continuing to talk. Elstad—held an Mirandized statement following an un-Mirandized statement can be admissible if the

waiver of Miranda is voluntary. Did not follow rule in this case.ci

[Concurring: Breyer] Courts should exclude “fruits” of initial unwarned questioning unless failure to warn was in good faith. “Effective” Miranda approach will serve same function: only when certain circumstances intervene btw

unwarned questioning and postwarning statement.

[Concurring in the Judgment: Kennedy] Majority’s objective inquiry from the perspective of the suspect is too broad. Narrower test: admissibility of postwarning statements related to the substance of prewarning statements

must be excluded unless curative measures are taken before postwarning statement is made.o Curative measures: ensure a reasonable person in the suspect’s situation would understand the

import and effect of the Miranda warning and waiver.

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[Dissenting: O’Connor, Joined by Chief, Scalia, and Thomas] Agrees w plurality that S’s statement is not inadmissible under “fruit of the poisonous tree” theory and that

subjective intent of interrogating officer should not be considered. Would analyze two-step under voluntariness standards

o If S’s 1st statement is involuntary, court must examine whether the taint dissipated through passing of time or a change in circumstances.

o 2nd statement should be suppressed if S shows its involuntary despite Miranda—court should analyze on remand.

D. Continuing Validity Dickerson v. United States [2000][Opinion: Rehnquist]Facts: D indicted for crimes, moved to suppress non-Mirandized statement. Court held that § 3501, which makes

admissibility of statements turn on whether they were voluntary, was satisfied and Congress had the final say on question of admissibility.

Holding: Miranda, being a constitutional decision of the Court, may not be overruled by an Act of Congress. Miranda and its progeny in the Court govern the admissibility of statements made during a custodial interrogation in both state and federal courts.

Congress has the ultimate authority to modify or set aside judicially created rules of evidence and procedure that aren’t req. by Constitution

o Congress may not supersede decisions interpreting/applying Constitution Miranda is a constitutional decision

o Rule applies to state courts—court cannot hold supervisory power over state courts—therefore, must be Constitutional command.

o Language of Miranda: “give concrete constitutional guidelines for law enforcement agencies and courts to follow.

Miranda is a prophylactic rule—does not have the full power of a constitutional right

[Dissenting: Scalia]

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Chapter 12: The Remedy of Exclusion Exclusionary rule has little textual support in the 4th Amend. Could say that the issue could best be solved

with the law of tort remedies.o On the other hand, looking the origin and development, the 4th has been interpreted and has

changed over time to accommodate our needs.o Ask: what values did the Framers hold dear? What means best enforce those values in modern

times? Deterrence:

o Some cops misunderstands a complex 4th rule or interprets the facts regarding a search/seizure differently than the court. This type of effort cannot be prohibited.

o Other cops knowingly violate 4th—exclusionary rule might be too indirect and attenuated of a punishment to adequately deter. Suppression happens long after the actual offense and officer might not even know about it.

o Could argue deterrence of the institution as a whole: promotes professionalism, better training, updating officers on constitutional law. More search warrants applied for?

Cost/benefit analysis—deterrence benefits outweigh its substantial social costs.o Costs: can exclude reliable evidenceo Benefits: innocent people are not searched

When the ER applies:o Whether the cost of its use is likely to outweigh the incremental deterrent benefit of extending the

doctrine to the situation. SC is growing increasingly disenchanted w/ the ER, so it places a greater and greater

burden on those who invoke the rule to suppress evidence. Not an individual right and applies only where the benefits of deterrence outweigh the costs.

o Only in Criminal Proceedings—not in Habeas cases!

A. Rationale Mapp v. Ohio [1961][Opinion: Clark]Facts: Officers went to M’s house pursuant to info that a suspected bomber was hiding there and there was policy

paraphernalia being hidden there. Officers knocked and demanded entrance, but M refused. Hours later additional officers sought entry, forcibly opened the door, and gained admittance. Cops would not allow attorney into the house. Cops handcuffed M for being “belligerent” and searched through her house. Ultimately, cops found obscene materials. At trial, no search warrant was produced.

Holding: All evidence obtained by searches/seizures in violation of the Federal Constitution is inadmissible in a criminal trial in a state court.

Weeks: held that 4th barred use of evidence secured through an illegal search/seizure in a federal prosecution.

Wolf: declined to apply Weeks exclusionary rule to the States by the DPC.o More than half the states have adopted/adhered to Weeks rule since.o Other remedies for protection have been worthless and futileo “Silver Platter” doctrine: recently discarded—allowed federal judicial use of evidence seized in

violation of the Constitution by state agents. 4th’s right to privacy enforceable against States through DPC of 14th

o Sanction of exclusion must also be enforceable against them—otherwise, unreasonable searches/seizures would be “a form of words”

Purpose of exclusionary rule:o “to deter—to compel respect for the constitutional guaranty in the only effectively available way—

by removing the incentive to disregard it.” As it stands, the State, by admitting unlawfully seized evidence, serves to encourage disobedience to the

Federal Constitution which it is bound to uphold.o Federalism—avoid conflict btw Federal and State

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o ER promotes Federal-state cooperation to solve crime Cardozo: “the criminal is to go free because the constable has blundered.”—in some cases, this

will undoubtedly be the result. Pg. 945.o Judicial integrity o “The criminal goes free, if he must, but it is the law that sets him free. Nothing can

destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.” Pg. 945.

[Concurring: Black] 4th, standing alone is not enough to bar introduction of papers/effects seized in violation

o Language is not expressly precluding However, when you consider ban on unreasonable searches/seizures w/ ban against self-incrimination, ER

is justified.

[Concurring : Douglas] Allowing States to come up w their own remedy robs the 4th of meaningful force

o Prosecution of the police officer is too loftyo If ER isn’t req., action of trespass against officer would be difficult for a citizen to maintain.

[Dissenting: Harlan, Joined by Frankfurter and Whittaker] Court has disregarded stare decisis ½ states still adhere to common-law non-exclusionary rule Federal court cannot point the State in one direction or another—state power Trial procedure is w/in state power

Hudson v. Michigan [2006] 5-4 decision—Knock-and-Announce Rule[Opinion: Scalia]Facts: Cops have warrant to search for drugs/firearms @ H’s home. When police arrived @ house, they announced

presence, but waited 3-5 seconds before turning the knob of the unlocked front door and entering H’s home.

Holding: Exclusionary rule is not an applicable remedy to a violation of the knock-and-announce rule. Common-law principle: officer must announce their presence and provide residents opportunity to open

dooro Exceptions: threat of physical violence or reason to think evidence would be destroyed if advance

notice was given or knock/announce would be “futile” Police only need reasonable suspicion for exception

o “Reasonable wait time” standard Issue in this case is the remedy to violation

o “Suppression of evidence, however, has always been our last resort, not our first impulse” Pg. 955.

o Exclusionary rule “substantial social costs” ER not applied merely bc constitutional violation was a “but-for” cause of obtaining

evidence.o Police would have executed the warrant whether or not the preliminary misstep occurredo “the exclusionary rule has never been applied except where its deterrence benefits

outweigh its substantial social costs.” Pg. 957 Interests promoted by knock-and-announce different than shielding persons, houses, papers and effects:

o Protection of human life and limb—self-defense by residento Protection of propertyo Protects privacy and dignity that can be destroyed by sudden entrance

ER applied where deterrence benefits outweigh the substantial social costs

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o Costs: exclusion of relevant incriminating evidence, get-out-of-jail-free card, difficult for trial court to assess, violence against officers from waiting longer

o Benefits: deterrence not worth a loto Civil law suit is an effective deterrent

Franks: first case w/ violation of 4th and no ER, nothing in 4th says you have to exclude.

[Concurring in Part and Concurring in the Judgment: Kennedy] K and A protects rights/expectations linked to constitutional principles, not trivial ER will continue Other ways to discipline cops, like civil remedies, regulations, or legislation Suppression is more serious—K and A is too attenuated for suppression

o Failure to wait 20 seconds is not what causes the discovery of evidenceo Not a widespread pattern of violation

Evidence discovered bc of subsequent search, not bc of failure to K and A

[Dissenting: Breyer, Joined by Stevens, Souter, and Ginsburg] ER should apply to violation of knock-and-announce bc it is inherent in assessing the reasonableness of a

search/seizure. Gov. officials will find it easier to proceed w/ what they consider a necessary search immediately and

w/out the requisite constitutional compliance. Violation of K and A is a widespread pattern Court only has denied application of ER when:

o There is a specific reason to believe application of the rule would not result in appreciable deterrence.

o Admissibility in proceedings other than criminal trials was at issue. Actual entry was connected to unlawful entry—entry was a necessary condition to cops presence in H’s

home and there presence was a necessary condition in their finding/seizing evidence. Majority gives “attenuation” a new meaning: occurs when the interest protected by the constitutional

guarantee that has been violated would not be served by suppressing the evidence obtained.

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B. “Fruit of the Poisonous Tree” 4th Exclusionary rule applies to direct products of governmental illegality, but also to secondary evidence

that is the “fruit of the poisonous tree” Example

o Unconstitutional search of D’s house, cops seize a diary. Diary names a witness to the murder, who agrees to testify against D at his trial.

o Unconstitutional search is the initial illegality: it is the “poisonous tree” Diary is inadmissible as the direct product of an unlawful search—ER

o Testimony is “secondary” or “derivative” evidence—fruit of the poisonous tree (ordinarily inadmissible)

Three qualifications:(1) the independent source doctrine—evidence is not a fruit of the poisonous tree, not subject to ER(2) the inevitable discovery rule, and(3) the attenuated connection principle Attenuation factors: temporal proximity (immediately after taint or some time later), intervening

events, intervening act of free will (Wong Sun was released from jail and voluntarily came back), flagrancy of the violation, and nature of the derivative evidence.

BE CLEAR AS TO THE NATURE OF THE “POISONOUSE TREE”—THE CONSTITUTIONAL VIOLATION THAT CONSTITUTES THE INITIAL ILLEGALITY.

Threshold issue: whether the evidence is the product of illegal governmental activity.

Silverthorne Lumber Co. v. United States [1920][Opinion: Holmes]Facts: Silverthornes arrested @ their homes and detained. While in detention, cop went to their office and took all

the books, papers and documents. Cop made photographs/copies of material papers and used in indictment. Originals were returned, but court later subpoenaed their production.

Holding: (1) Evidence seized in violation of 4th and any evidence that derives from such a violation cannot be used in the government’s case-in-chief; (2) evidence obtained in violation of 4th is not necessarily irretrievably tainted, rather the facts may be used if knowledge of them is gained from an independent source.

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Wong Sun v. United States [1963][Opinion: Brennan]Facts: Narcs agents watched Way for 6 weeks, arrested him, and found heroin. Way said he bought it from laundry-

owner “Blackie Toy.” Agents went to laundry mat operated by James Wah Toy (not necessarily Blackie Toy) and had Wong say he wanted services. Toy said he didn’t open til 8, Wong revealed himself, and Toy ran into living quarters. Agents broke down door, searched premises, and found no drugs. Toy ratted out Johnny on 11th, cops went, entered, and Yee gave over drugs. At station Yee told police he bought heroin from Toy and “Sea Dog.” Toy was questioned and said Sea Dog was Wong Sun, cops went to his house, wife answered, and officers went into apartment. Officers took Wong Sun from his bedroom in handcuffs and searched apartment, not finding any drugs. Wong Sun, Toy, and Yee were questioned separately; officers put statements together that were read to them. Toy and Sun would not sign the statement.

Way Toy Yee (heroin) Wong Sun and ToyHolding: Presentation of verbal evidence and drugs obtained by an illegal entry were both inadmissible in court

except where there is a break in the chain of evidence. Four items of evidence:

(1) Toy’s statements in his bedroom(2) Heroin surrendered by Yee(3) Toy’s pretrial unsigned statement(4) Sun’s pretrial unsigned statement

Toy’s Case: No reasonable grounds nor PC for Toy’s arrest—Statements out

o Based on info, would not have been able to get a warrant Way’s tip was unreliable—never given info before, name “Blackie Toy,” unspecific location Flight does not matter bc cop misrepresented his mission at outset

o Toy’s declarations are excluded as “fruits” of agents’ unlawful action Verbal evidence which derives so immediately from an unlawful entry/unauthorized arrest

are fruit of official illegality No distinction btw physical and verbal evidence for ER

Circumstances show it was not an act of free will Narcotics taken from Yee

o Government did not learn of the evidence from an independent sourceo Drugs were come at by the exploitation of the primary illegality

Toys unsigned statemento Suppress bc of rules of evidence

Wong Sun’s Case: Arrest was w/out probable cause or reasonable grounds

o Unsigned confession was not the fruit of that arrest—properly admitted @ trialo Released after lawful arraignment, returned voluntarily several days latero Connection btw arrest and statement had become attenuated to dissipate the tainto Even if certain evidence is causally tied to an earlier illegality—even if the tree is poisoned—at

some point the fruit from that tree is sufficiently untainted so as to be admissible in a criminal trial. Narcotics taken from Yee

o No standing, unrelated to tainted relationship btw Toy’s statement and surrender by Yee

[Concurring: Douglas] PC could not have justified arrest of Toy w/out warrant

[Dissenting: Clark, Joined by Harlan, Stewart, and White] Court applies hind-sight, but PC only needs proof sufficient to est. guilt Sufficient PC here—officers found laundry quickly, Toy ran, arrest was imperative to prevent escape

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United States v. Patane [2004]Facts: P was arrested, released on bond, and given a TRO. P violated TRO and was arrested. Cop attempted to

Mirandize, but P interrupted that he knew his rights…warning was not completed. Cop asked about pistol and P said it was in his bedroom and gave permission for cop to seize it.

Holding: Failure to give a suspect Miranda warnings does not require the suppression of the physical fruits of the suspect’s unwarned but voluntary statements.

Failure to Mirandize does not violate Constitution—violation occurs upon admission of unwarned statements into evidence @ trial

o Miranda is a fundamental trial righto Does not bar admission of physical fruit of a voluntary statemento No fruit of poisonous tree from Wong Sun

Miranda does not require that fruits be discarded as inherently tainted. Self-incrimination Clause is self-executing—involuntary statements from coercive police interrogations

have automatic protection from use in criminal trial. Focus is unwarned statements Failure to give Miranda warnings does not by itself violate suspect’s constitutional rights or the Miranda

rule—violation occurs when evidence is admitted at trial

[Concurring in the Judgment: Kennedy, Joined by O’Connor] Concerns underlying Miranda must be accommodated to other objectives of the criminal justice system. Admission of nontestimonial physical fruits does not run the risk of admitting accused’ coerced

incriminating statements.

[Dissenting: Souter, Joined by Stevens and Ginsburg] Plurality adds inducement for interrogators to ignore Miranda rule. Miranda violation raises presumption of coercion—5th extends to exclusion of derivative evidence.

[Dissenting: Breyer] Courts should exclude physical evidence derived from unwarned questioning unless failure to Mirandize

was in good faith.

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Limits on Excluding Evidence2. Independent Source and Inevitable Discovery

Independent source doctrine: applies if evidence is initially discovered unlawfully, but is later obtained lawfully in a manner independent of the original discovery.

Inevitable Discovery rule: evidence is causally tied to earlier governmental illegality, but the prosecutor asserts that the police would have discovered the evidence lawfully despite the unconstitutional conduct.

Nix v. Williams [1984][Opinion: Burger]Facts: Christian burial speech case. Deciding whether evidence pertaining to discovery/condition of victim’s body

was properly admitted on the ground that it would ultimately or inevitably have been discovered even if no violation of any constitutional or statutory provision had taken place.

Holding: Physical evidence obtained through a violation of constitutional right will not be excluded if the cops can prove by a preponderance of the evidence that they would have found it anyway.

Court adopts the ultimate or inevitable discovery exception to the exclusionary rule—evidence properly admitted on ground that it would ultimately or inevitably have been discovered even if no other violation of any constitutional provision taken place.

Exclusionary rule serves to deter police violationso Prosecution is not to be put in a better position than it would have been in if no illegality had

transpiredo Derivative evidence analysis ensures the prosecution is not put in a worse position bc of some

earlier police error of misconduct.o Independent source doctrine: does not apply here bc it allows admission of evidence discovered by

means wholly independent of any constitutional violation. Prosecution must est. by a preponderance of evidence that the information would have been discovered by

lawful means—then deterrence rationale has little basis, so evidence should be received.o Low burden

Detective’s conduct did nothing to impugn reliability of evidence in questiono Suppressing evidence that would have been found anyway puts state in worse position than if no

misconduct. Body was bound to be discovered by efforts already underway. Would be found “w/in a short time” and in “essentially the same condition”

[Concurring: White] Brewer I was a 5-4 decision and four members of the court did not think Detective did anything wrong or

unconstitutional—acted as many police officers would have done under similar circumstances and in light of then-existing law.

[Concurring in Judgment: Stevens] Condemns officer’s conduct:

o Speech was an attempt to substitute and ex parte, inquisitorial process for adversarial processo Not a case where the constable blundered, but one where the constable planned an impermissible

interference w the right to assistance of counsel. Officer’s question leads to costly litigation--$$ and labor

[Dissenting: Brennan, Joined by Marshall] Agrees that inevitable discovery exception to exclusionary rule is consistent w/ Constitution

o Court loses sight of difference btw inevitable discovery and independent source: independent source allows prosecution to use evidence only if it was obtained by fully lawful means—does not do any damage to constitutional protections exclusionary rule is meant to enforce.

o Gov. should have to satisfy heightened burden of proof before using evidence—clear and convincing evidence

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Murray v. United States [1988][Opinion: Scalia]Facts: Cops watched M based on info from informant and saw individuals load a dark container onto a tractor-

trailer. M later gave truck to other drivers, who were followed, arrested, and the vehicles lawfully seized. Cops found pot in vehicles. Agents went into warehouse and forced entry, saw in plain view bales of pot. Applied for a search warrant, but did not mention prior observations. Cops reentered warehouse w warrant and seized bales and notebooks.

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

Independent Source Doctrine: applies to 4th, 5th, and 6th violations and applies to evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality.

Does not encourage officers to routinely enter w/out warrant bc officer w sufficient PC to get a search warrant would not want to risk suppression of evidence.

Present case: knowledge of pot was obtained during unlawful entry but also at entry pursuant to warrant.o If later acquisition was not the result of earlier entry independent source doctrine should applyo Exclusionary rule would not put police in same position, but worse one.

Later lawful seizure must be genuinely independent of an earlier, tainted one Ultimate Q: whether the search pursuant to warrant was in fact a genuinely independent source of the

information and tangible evidence @ issue. Warrant was supported by PC, which was based on an affidavit that did not include anything learned by the

police during the illegal first entry.o Does not apply when the police would not have applied for the warrant but for the illegal search—

then the warrant would be a fruit of the unlawful entry, would be poisoned.

[Dissenting: Marshall, Joined by Stevens and O’Connor] Court’s decision fails to provide guarantees that the subsequent search was independent of the illegal

search and undermines the deterrence function of the exclusionary rule.o Agents made no effort for warrant prior to illegal entryo To insure independence, must rely on demonstrated historical facts capable of ready verification or

impeachment Here: same officers, warrant obtained immediately after

[Dissenting: Stevens] Against Segura bc it would provide agents w incentive to engage in unconstitutional violations of the home.

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3. Good FaithUnited States v. Leon [1984]**Objective analysis[Opinion: White]Facts: Confidential informant of unproven reliability told police two people were selling drugs @ their resident,

said he had witnessed a sale 5 months earlier. Police started an investigation, saw druggies coming in and out w small packages and saw relevant activity w respondents’ automobiles. Police got facially valid search warrant for houses and cars.

Holding: Evidence seized in good faith by officers reasonably relying on a search warrant issued by a neutral magistrate is admissible in the prosecution’s case in chief if it was objectively reasonable for the officer to believe the warrant was properly issued.

4th does not forbid introduction of illegally seized evidence in all proceedings ER sanction is imposed separately from 4th violation—not constitutionally bound

o Weighed analysis of costs and benefits of preventing use in the prosecution’s case Social costs of ER: interference w criminal justice system’s truth-finding so some guilty Ds

go free/receive reduced sentences. Benefits: when officers act in objective good faith or transgressions are minor, benefit is low

o Application of the rule is restricted to areas where its remedial objectives are most efficaciously served “Dissipation of the taint” concept: marks the point where detrimental consequences of illegal police action

became so attenuated that the deterrent effect of ER no longer justifies cost. Preference for warrants—deference to magistrate’s determination

o ER not designed to punish the errors of judges and magistrates—they don’t ignore/subvert 4th o ER will not have deterrent effect on issuing judge/magistrate

No stake in the outcomeo Exclusion of evidence must alter the behavior of individual law enforcement officers or the policies

of their departments. Suppression of evidence obtained pursuant to a warrant should be ordered on a case-by-case basis and

only where exclusion will further purposes of the ER.

[Concurring: Blackmun] 4th is not a constitutionally compelled result of 4th. If good-faith exception to ER changes police compliance w 4th—court will have to reconsider “the scope of the exclusionary rule is subject to change in light of changing judicial

understanding about the effects of the rule outside the confines of the courtroom.”

[Dissenting: Brennan, Joined by Marshall] Court is gradually abandoning ER—here allows use of illegally obtained evidence against the individual

whose rights have been violated. Bill of Rights restrains the power of Gov. as a whole—not one particular agency

o 4th condemns initial unconstitutional invasion of privacy and subsequent use of evidence Invalid warrant = naked invasion of privacy DC determined non of the Ds had no reasonable expectation to privacy in Via Magdalena location—no

standing to object—suppression will not weaken Gov.’s case

[Concurring in No. 82-963 and Dissenting in 82-1771: Stevens] Search/seizure cannot be both “unreasonable” and “reasonable” If no PC—unreasonable Framers meant to address the unreasonable issuance of warrants—concerned about overreaching

warrants. Where PC is lacking, a reasonable person in the circumstances would not believe there is likelihood for the

search to produce evidence.

Four situation where a reasonably well-trained officer would not rely on a warrant subsequently declared defective:

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o When magistrate issued warrant relying on info supplied by a cop who knew the statements in docs were false or disregarded truth.

o Evidence is excluded if the magistrate abandoned his judicial role and lacks neutralityo Officer may not rely on a warrant issued by a magistrate based on wholly conclusory affidavito Warrant is so facially deficient that the officers cannot reasonably presume it’s valid (Groh)

Herring v. United States [2009]**5-4 Decision[Opinion: Roberts]Facts: H went to get something from his impounded truck, cop checked for outstanding arrest warrants, and found

there was one for H’s failure to appear on a felony charge. Cop followed H, pulled him over, and arrested him. SILA found drugs and gun (felons cannot possess).

Holding: When police mistakes are the result of negligence, rather than systemic error or reckless disregard of constitutional requirements, ER does not apply to violation of 4th.

When 4th violation occurs and search or arrest was unreasonable, does not necessarily mean exclusionary rule applies—last resort, not first impulse

ER: police conduct must be sufficiently deliberate, that exclusion can meaningfully deter ito Must be worth the price paid by the justice systemo Deters deliberate, reckless, or grossly negligent conduct, or systematic negligence.o Good faith analysis is objectiveo Does not suggest all recordkeeping errors by police are immune from ER

Circumstances: neighboring county’s sherriff-run database; negligence was isolated, not recurring. Also the court uses attenuated three times; turns also bc the database did not even belong to the county in which the arrest occurred.

[Dissenting: Ginsburg, Joined by Stevens, Souter, and Breyer] Application ER would discourage police error @ issue Deterrence: thinks it would deter

o Tort law: liability for negligence creates incentive to act w more careo Sherriff’s Dep’t is in the position to remedy the situation

By restricting suppression, H has no remedy No incentive to maintain up-to-date records—officer wanted to arrest H and used records to make legit

[Dissenting: Breyer] Arizona v. Evans: held recordkeeping errors do not trigger ER, as long as police reasonably relied upon

court clerk’s recordkeeping—distinction btw judicial errors and police errors.

Fellers v. United States [2004][Opinion: O’Connor]Facts: F was indicted and cops went to his house to arrest him, saying they came to discuss his involvement in drug

distribution. F says he used drugs w four people in indictment. After 15 mins, cops bring F to jail and Mirandize him, F waives and reiterates earlier inculpatory statements. H says statements in home should be suppressed as violation of 6th.

Holding: Officers violate 6th by deliberately eliciting information from D in post-indictment visit to his home absent presence of counsel or waiver of counsel, regardless of whether officers conduct constituted an investigation.

Does not matter if it’s an “interrogation” for 6th claimso Officers deliberately elicited information from F

Under Massiah: 6th attaches @ indictmento Officers actions violated 6th—no counsel or waiver

Elstad “fruits” analysis does not apply bc it’s not a 5th case

Kansas v. Ventris [2009]

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[Opinion: Scalia]Facts: V and girl rob and kill a man. While in jail, V tells an informant placed in V’s cell instructed to “keep [his] ear

open and listen” for incriminating statements that he shot the man and robbed him. At trial, V lied on the stand and blamed it on the girl. State said statement could be let in for impeachment purposes bc D didn’t have the license to get on the stage and lie. Court agreed.

Holding: Statement taken in violation of 6th right to counsel is admissible in trial for impeachment of D’s conflicting statement.

Massiah right is a right to be free of uncounseled interrogation, and is infringed @ the time of the interrogation—was infringed here when State used jailhouse informant.

When Q is unrelated to charged crimes, elicitation of statements w/out counsel or waiver is not unlawful—6th is “offense specific”

Constitutional violation occurs when the uncounseled interrogation is conducted. Case is about the scope of a remedy for constitutional violation that already occurred:

o Even though the obtaining of evidence was constitutionally invalid, it is admissible for impeachment Balancing test:

o Interests: preventing perjury, assuring integrity of the trial process.o Costs: little deterrence—officers would not risk losing a properly obtained statement

[Dissenting: Stevens, Joined by Ginsburg] 6th is violated when the fruits of the State’s impermissible encountered w D are used for impeachment, just

as it is when the fruits are use for the prosecutor’s case in chief. Introduction of illegally obtained evidence @ trial violates constitution.

o Violation started @ interrogation, compounded @ trialo Damaging to adversarial process

Court is privileging the prosecution @ the expense of the Constitution

Prosecutor may introduce testimony that contradicts the D’s: (1) direct testimony; or (2) answers to legit questions put to him during cross-examination.

U.S. v. Jones Ex-post or ex-ante? Property trespass still applies Aggregation of data from someone following you

Other remedies to 4A violations: Bivens or 1983 action

o Subject to officer’s qualified immunityBrinegar [Dissenting: Jackson]

4th freedoms are indispensible, when they are taken away it cowers the population and puts terror in every heart.

o Only flagrant abuses come to the attention of the courts bc when officers find nothing incriminating, there is no redress.

o Diff. from other rights bc there is no way for individual to invoke advance protection (injunction)

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