Criminal Investigation Master Notes

Introduction.................................................................................................................................................. 2

Regulating Searches and Seizures: The Fourth Amendment......................................................................3

Introduction........................................................................................................................................... 3

Introduction to the exclusionary rule, its virtues and its vices...................................................................3

Searches.................................................................................................................................................. 4

The Meaning of “Searches”.................................................................................................................. 5

Privacy and Technology....................................................................................................................... 9

Seizures................................................................................................................................................. 12

Warrants and the Meaning of Probable Cause......................................................................................15

Background........................................................................................................................................ 15

The Probable Cause Standard...........................................................................................................15

Execution of Warrants........................................................................................................................ 21

Exceptions to the Warrant Requirement................................................................................................23

Exigent Circumstances....................................................................................................................... 23

Plain View Doctrine............................................................................................................................ 28

The Automobile Exception.................................................................................................................. 30

Arrests & Search Incident to Arrest....................................................................................................34

Reasonableness................................................................................................................................. 40

Police Discretion and Profiling............................................................................................................45

Special Needs........................................................................................................................................ 50

Roadblocks......................................................................................................................................... 50

Reasonableness and the Use of Force..................................................................................................52

Reasonableness and the Use of Consent..............................................................................................55

Third-Party Consent........................................................................................................................... 58

Exclusionary Rule: Standing and Scope................................................................................................59

Standing............................................................................................................................................. 62

Fruit of the Poisonous Tree................................................................................................................64

Regulating Police Interrogations and Confessions....................................................................................69

The Fifth Amendment Privilege: Background Values and Scope...........................................................69

Voluntariness Doctrine and its Discontents............................................................................................70

Miranda: Procedures to protect privilege............................................................................................72

What Constitutes a Valid Miranda Warning?......................................................................................77

What Constitutes a Valid Waiver?......................................................................................................77

Invocations......................................................................................................................................... 78

Waivers without Invocation................................................................................................................. 79

Remedies for Miranda Waivers (FOPT).............................................................................................81

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Introduction Criminal procedure is largely regulated and legislated by the federal judiciary through

constitutional interpretation Once the Supreme Court issues an opinion, that opinion is then re-interpreted by lower courts,

and those re-interpretations form the basis for criminal procedure Reasons the Supreme Court is a bad regulator of criminal procedure Court can only review practices that become the subject of a lawsuit

o Because criminal procedure must be the subject of a lawsuit in order to be reviewed, many types of abuses are never reviewed by the supreme court because

Juries are sympathetic to the police Police officers are rarely sufficiently solvent to warrant a lawsuit Criminal charges are rarely brought against police for mistreatment of citizens

because they are exceedingly unlikely to wino Thus, most criminal procedure issues raised occur when a person who has been charged

with a crime thinks procedure has been violated and challenges procedure through the exclusionary rule

Under exclusionary rule, improperly collected evidence is excluded from trialo Exclusionary rule is principle method of police control; implication is that many police

practices are never subject to review because are not related to the collection of evidence

Supreme Court is particularly poorly suited to regulating criminal procedure because of limited access to criminal procedure cases

o Can only hear 3-4 crim procedure cases per yearo Many of the cases that involve potential violations of criminal procedure never make it

into court system because exclusionary rule used at trial and as many as 90% of cases end in a plea

o Lower courts are heavily biased towards the policeo The case selection method does not permit court to develop systematic approach to

developing procedure Almost all law relating to criminal procedure is court-made, legislature is hesitant to place

restrictions on police abilitieso Therefore when court reviews conduct, court does not have understanding of whether

conduct is typical, connected with other practices, or the rationale for why conduct must be required

Once Supreme Court opines on an issue, their holding is re-interpreted by lower courts and applied by the police; the criminal justice system is massed against the criminal suspect

o Courts are overwhelmingly biased against suspectso Police action is usually only reviewable through exclusionary rule so have no incentive to

act according to rules for actions not related to gathering evidence Overall, means that while Supreme Court decisions are important, they do not necessarily reflect

activity actually taking place in the criminal justice system Ds always want to claim that the 4th amendment was engaged earlier so that any evidence

obtained subsequently is the fruit of the poisonous tree

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Regulating Searches and Seizures: The Fourth Amendment

Introduction Roles of the fourth amendment:

o Chief source of privacy protection Since 1961 when Supreme Court held that the Fourth Amendment applied in

state and federal cases alike, Fourth Amendment has been very importanto Holds police liable for actions

Police training now involves elaborate instruction on legal rules (4th Amendment) The role of 4th Amendment is distinct from role of constitution elsewhere in law

o Typically constitution defines out limits of lawo 4th amendment defines actually rules of law

Textual interpretation of 4th amendmento 4th amendment dictates protection against “unreasonable searches and seizures”

Traditionally this meant freedom from searches and seizures without probable cause or a warrant

Today reasonableness considered distinction from warrants and PCo 4th amendment arose out of cases in England and the US involving searches to discover

and punish political activity Importance is that 4th amendment, source governing police authority, was written

before the existence of police departments

Did activity constitute a search or seizure?

Was the search

reasonable?Yes

No

Evidence Excluded Under Exclusionary

Rule

No

End of 4th

amendment analysis

Was search conducted pursuant to a warrant?

Was search conducted

with Probable Cause?

No

LEGAL SEARCH OR SEIZURE

Yes

1. Was there a search or seizure?2. If not, end of 4th amendment analysis3. If so, when?4. If so, what kind?5. Search must be reasonable

a. Warrant based on PC – applies without exception only to search of housesb. Exception to warrant requirement – PC

Introduction to the exclusionary rule, its virtues and its vices

Exclusionary rule shapes the kind of 4th amendment cases judges see—exclusionary rule (4th amendment) cases arise only when the police find something that an incriminates an individual; this may affect judicial perception about the value and necessity of searches

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Mapp v. Ohio – Court considers whether evidence obtained by searches and seizures in violation of 4th amendment is inadmissible in state court.Police arrived at D’s home based on a tip that a suspect was hiding at D’s home. D refused to allow police into her house. The police waited outside and after several hours forced the door open. The police presented the woman with a fake warrant and then searched the house and found lascivious books, pictures, and photographs. The State Supreme Court found D guilty, though evidence was “based primarily on [evidence] unlawfully seized…”

Court finds that evidence obtained by searches and seizures in violation of the Constitution is inadmissible in a state court. Court argues that a right to privacy can be inferred from the combination of the 4th and 5th amendments limiting unreasonable searches and seizures, and the right against self incrimination. Court argues that though 4th and 5th amendments previously were not applied in state courts, they were not applied for practical considerations that are no longer present. Court also argue that differences in federal and state rules invited police to evade the rules at both level of government, and further by allowing the state courts to admit such unconstitutional evidence encourages disobedience to the constitution. Court dismisses the argument that enforcing the constitution allows criminals to go free on the basis of the importance of judicial integrity.

Judicial integrity could also be interpreted in the opposite way given that the court will sometimes be forced to rule in a way the court knows to be erroneous because of an of improperly collected evidence.

Judicial integrity could also be interpreted in the other way in that the system gives police a strong incentive to lie under oath when evidence has been improperly presented

Court also argues that the exclusionary rule is important to deter improper collection of evidence. Though this is now the most common argument for the rule, there is no data to support the

inference that the rule successfully deters At best only deters certain activity (does not deter intimidation or violence not intended to lead to

evidence)

Dissent argues that ruling shows a lack of judicial restraint. Dissent dismisses practical arguments because they are unrelated to a constitutional question. Court argues that since law enforcement problems vary from state to state, states ought to be allowed to form their own regulations on law enforcement.

Presents questions of whether 4th amendment should be applied on a sliding scale – strict exclusion for relatively minor crimes

Logic behind the 4th and 5th amendments together operating to exclude S&So Use of force self-incriminating testimony was a clear violation of 5th amendment privilege;

the 5th amendment must be a ban on evidentiary use of that compulsiono If 4th amendment seen as adjunct to 5th, then 4th should also be enforced with

exclusionary rule Some argue that this interpretation of 4th amendment runs counter to text since

text does not prescribe the exclusionary rule Exclusionary rule only matters if 1) incriminating evidence is found, 2) the government wishes to

charge a defendant with a crime the evidence proveso If police know that either of these conditions is absent, are less likely to follow the rule

Costs of exclusionary rule are relatively low – few escape punishment through exclusionary rule Right level of deterrence – some argue that one of benefits of rules is that it does not deter too

mucho If police suffered severe penalties for illegal searches, police would conduct many fewer

searches to limit their exposure, and these limitations on searches would drive down overall levels of criminal deterrence

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Searches

Criteria considered for identifying searchThe Katz analysis is a social norms analysis—consider the norms in the area to determine whether an individual has an expectation of privacy we are prepared to recognize as objectively reasonable given location of the individual

Criteria Explanation Case

Reasonable Expectation of Privacy

1. Individual manifests expectation of privacy2. Society accepts expectation of privacy as objectively reasonable

Katz v. US

Location of suspect/subject

Does area entered involved provide the setting for intimate activities? (if in the home, the answer is yes)

Oliver v. United StatesUS v Knotts

Precautions undertaken by individual to protect privacy

Did individual manifest an expectation of privacy?Did individuals take particular care to ensure privacy?

Katz v. USUnited States v. Dunn

Location of the police

1. Are the police occupying a space that any member of the public could occupy or access; applications:

broad hypothetical – could public ever occupy this space

practical – do people regularly occupy this space?

2. Are police accessing information that was knowingly exposed to the public or a third party?

Florida v. Riley(flyovers)

DunnCiraolo

California v. Greenwood

Character of the information obtained

Intimate v. Public/Commercial (not clear what intimate meansIllegal v. Legal (no reasonable expectation of privacy in protecting illegal information

Illinois v. Caballes

Police trespassDid police engage in physical trespass to obtain information? (Considered, but not dispositive)

Oliver v. United States

Character of technology

Was sense enhancing technology used? How invasive is the technology? Is the technology generally available to the public? What sense was enhanced? Does technology reveal anything about the contents of a constitutionally protected space? Could those things ordinarily be learned without physical trespass into the area?

KylloIllinois v. Caballes

Police compliance with the law

Were the police complying with all pertinent laws at the time of the search? (not dispositive)

Riley v. Florida (flyovers)

Reliability of evidenceIs the evidence in question particularly reliable?

Unites States v. White

Nature of the invasionDoes invasion involve physical (tactile) manipulation of a protected thing?

Bond v. United States

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The Meaning of “Searches”Doctrinal question—what is a 4th amendment search?The personal question—what privacy rights to individuals have the right to demand?

In order for the police to perform a search, the search must be reasonableo In order for a search to be reasonable the officer must have a warrant based on PC

If an activity is not considered a search, then it can be unreasonable and requires no supporting warrant or PC

Katz v. United States – Court considers whether the fact that law enforcement does not physically invade a protected space means that law enforcement did not violate a 4th amendment right; court’s first attempt to define a 4th amendment searches in light of emerging technology(D was convicted of transmitting gambling information over the phone when the police used a recording device posted on the outside of a telephone booth to record D’s betting conversations inside the booth.

Court finds that the government’s use of the electronic recording devise violation a justified expectation of privacy and thus constituted a S&S under the 4th amendment. The court finds that the fourth amendment protects people and not places, and thus it is irrelevant that D was in a publicly accessible area when he placed his call. Court argues further that by closing the door of the booth and paying for the call, D had a reasonable expectation of privacy. Court argues that it is irrelevant that the transmitter did not physically invade the booth because the non-violation of a property right is not dispositive on the 4th amendment because the 4th amendment extends to not just tangible items, but also oral statements. The court then finds that as a S&S the police actions did not comply with constitutional requirements because the officers did not have a judicially issued warrant for the S&S.

(concurrence important because the standard offered in the concurrence is now cited as holding of Katz)Concurrence holds that a) a telephone booth is an area where, like a home, but unlike a field, a person has a constitutionally protected reasonable expectation of privacy, and b) electronic as well as physical intrusion into such a private place may constitute a 4th amendment violation, and c) invasion of such a space is presumptively unreasonable absent a warrant. Finds that in order to find a S&S must find 1) that a person exhibited an actual (subjective) expectation of privacy, and 2) that the expectation is one society is prepared to recognize as “reasonable.”

Dissent argues that a textualist reading does not support the court’s findings, but rather that the court is making the law to be compatible with modern technology. Court argues that a conversation is not something that can be searched or seized. Also argues from originalist perspective that this is not a practice that founders could have been aware of.

Effects of Katz –expand the fourth amendment by rejecting ideas thato Katz is concerned only with S&S of tangible propertyo Amendment applies only to surveillance techniques involving physical penetration of

protected spaces Deficiencies of Katz – offered no comprehensive theory by which questions of coverage should

be resolvedo Some argue that reason/justification for the lack of a comprehensive theory in Katz is that

an open-ended holding allows rules to be “grown” gradually to suit a system; court does not issue “made” rule that has unforeseeable ramifications

o Because of deficiencies of opinion, Harlan’s 2-part criteria has emerged as the test for determining of there is a 4th amendment S&S implication:

A person have exhibited an actual (subjective) expectation of privacy Expectation be one society is prepared to recognize as reasonable

All-or-nothing approach to S&S – Katz (and specifically deficiencies of Katz) raise question of degree to which 4th amendment law should be uniform (as it has been in the past) for anything

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that could be considered a search or seizure, rather than graduated depending on the degree of the privacy invasion

o Establishing a uniform ruling either limits the tools available to the police or limits restrictions on the police

If the line is uniform, anything beyond the cutoff point requires a warrant (which provides substantial protection for S&Ss)

However searches that are not substantial (e.g. shining a flashlight into a pulled over car) either are not regulated at all, or are not allowed because they are S&Ss and thus require a warrant.

United States v. WhiteContext: war on drugsD tried and convicted when a government informant wore a wire to record conversations that implicated D in criminal activity. On two conversations a federal agent hid in the informant’s closet to transmit the signal. On one other occasion the informant wore a wire into D’s home. D appeals conviction on the basis that the 4th amendment protected his expectation of privacy in the conversations because those expectations were constitutionally “justifiable” (Katz suggested that 4th amendment protects “justifiable” expectations of privacy).

Court finds that the recording and transmitting was not a search, and thus did not violate the 4th amendment. Court argues that the law permits invasions of privacy in the form of accomplices repeating conversations to the police, and by extension the law should thus permit recordings (argument is, what is the difference?). The court argues that the law should be hesitant to outlaw the use of reliable evidence. The court also argues that permitting wiretaps will not affect free discourse because an individual who confident enough to talk to an accomplice who may be reporting to the police is unlikely to fear being recorded.

One possibly interpretation of holding is that 4th amendment protection can be secured only by not speaking

Interestingly, the majority writes from the perspective of a guilty person in writing that the guilty will not substantially change level of comfort with speech, while the dissent is worried about the impact on the average individual

Dissent argues primarily that monitoring kills free discourse by undermining confidence and sense of security in individual conversations and destroys the concept of privacy imagined by the founders. The court asserts that individuals rely on the obscurity of remarks, and are thus likely to be much more measured in speech knowing that they could be recorded. Dissent also argues that wiretapping is not analogous to accomplice testimony and asserts that the majority assumes that wiretapping imposes no greater invasion of privacy than accomplice testimony. Dissent also points out that the question is not one of whether wiretapping can be used, but only one of whether it can be used without a warrant.

Scenario 4th Amendment RulingFaithless Friend: criminal accomplice rats out friend

Not a 4th amendment issue

Unbugged event Not a 4th amendment issue

Agent with a recorderIf an agent can report on an interaction, why not allow an agent to record it

Agent with transmitter (White)

If an agent can record an interaction, why not allow an agent to transmit? Argues no additional loss to privacy because D’s utterances will not be substantially different just because D could be recorded

Some of motivation for allowing increasingly invasive investigative techniques may be that certain crimes cannot be investigated effectively without covert operations because the participants and victims are unlikely to report them (E.g. narcotics trafficking, bribery of public officials, intimidation of witnesses, etc.)

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o These crimes often involve consensual transactionso Argument is that certain crimes can only be caught only with the techniques used in

White

Oliver v. United States – Stands for notion that a physical trespass does not necessarily imply a search and invoke 4th amendment protections.Ds were charged with growing marijuana. Both Ds were growing marijuana in hidden fields that were highly secluded and surrounded by no trespassing signs. Federal agents discovered the marijuana as a result of warrantless trespass onto the property.

Oliver was the first case that cited Harlan’s concurring Katz opinion as the holding in Katz

Court found that the evidence procured through the police investigation was admissible. Court argues that under Katz the individuals did not have a “reasonable expectation of privacy.” Court argues 1) textualism – that the 4th amendment extends to ‘persons, houses, papers, and effects,’ not fields 2) Katz analysis – open fields do not provide a reasonable expectation of privacy 2a) orginalism/evolving meaning?- that open fields do not provide the setting for intimate activities the constitution is meant to protect 2b) social interest – that there is no societal interest in protecting the privacy of activities that occur in fields (growing crops) 2c) as a practical matter police have access to a field that they do not have to homes. Court also states that the existence of a property right is not dispositive in determining whether one has a reasonable expectation of privacy.

United States v. Dunn – Stands for notion that courts distinguish between open fields (no warrant necessary) and curtilage (warrant necessary)—the area immediately surrounding the home. Court concluded that a barn 50 yards from the home was outside the curtilage so agents were allowed to jump over fences and peer into the barn without a warrant.

Per the decision, curtilage issues should be resolved with reference to four factors:o Proximity of the area to the homeo Whether the area is included within an enclosure surround the homeo Nature of the uses to which the area is puto Steps taken by resident to protect area from observations

California v. Ciraolo – Case finds that flyovers over curtilage ar 1,000 feet (the lowest height allowable for a plane to fly) are not protected by the 4th amendment because the fact that private citizens can fly over the area means that individuals do not have a reasonable expectation of privacy there.

Florida v. Riley – Flyovers of curtilage in helicopters are not protected by the 4th amendment, at least as long as such flyovers do not lead to physical disturbances of the property and it is possible for ordinary citizens to fly over the area.Investigators flew a helicopter over a covered greenhouse at a height of 400 ft based on a tip to the Sheriff’s office that marijuana was being grown in the greenhouse. Panels were missing from the greenhouse roof that allowed the Sheriff to see marijuana growing inside the greenhouse.

Court found that the no search occurred under the 4th amendment in accordance with the finding in Ciraolo. Court argues that if any member of the public could fly a helicopter at 400 feet over the property, then an individual has no reasonable expectation of privacy. Court also asserts that evidence does not suggest that a flyover at 400 feet is sufficiently rare that an individual should expect to have privacy from flyovers at that altitude. (Concurring opinion emphasis that there is reason to believe that there is considerable use of airspace at 400 feet and thus no reasonable expectation of privacy could exist).

The obvious counter to this opinion is that whether an individual has a reasonable expectation of privacy depends on where the individual is located and how much air traffic enters the area

Dissent argues that under plurality’s view, expectation of privacy is defeated if ANY member of the public could position herself to see into an area. Court argues that it is not determinative (or should not be determinative) that the officers were flying at a height approved by flying regulations since evidence of

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compliance/non-complaince with the law was not dispositive of a search in Oliver. Court argues that finding that dispositive the fact that the officer was in a place he had a right to be is attempt to analogize to an officer peering from a road, but a position in a helicopter is distinguishable because few have access to helicopters, and so one might reasonably expect privacy from helicopter viewings even if helicopters are allowed to go to a certain area. Another dissenting opinion emphasizes that evidence does not indicate that there is enough helicopter traffic at that height to indicate that one has no reasonable expectation of privacy there.

Supposing the dissent’s final point is correct (that in order to determine if the helicopter viewing violated the 4th amendment, one ought to consider helicopter traffic to determine if individual had a reasonable expectation of privacy); question is where to consider helicopter traffic to determine if expectation of privacy was reasonable (local community? State? Nation?)

Dissenting opinion indicates that the court’s understanding of “intimate activities” is sex-related (sun bathing)—the original meaning of the constitution was intended to product evidence of sedition and commercial activities!

After Riley and Ciraolo, most aerial surveillance of curtilage is outside the scope of Fourth Amendment concern, but physical invasion of curtilage is a search

Bond v. United States – Tactile manipulation of a bag is a search protected under the 4th amendment. A Boarder Patrol agent squeezed soft luggage in an overhead storage area on a bus and felt a brick-like object. He obtained consent to open the bag and found a brick of Meth. The Supreme Court found a search because though passengers expect other passengers much touch their bag, passengers do not expect bags to be felt “in an exploratory manner.” Dissent points out that it is much more likely that another passenger will squeeze a bag in an overhead compartment then it is that strangers will look in a backyard from an aircraft—hard to know why ask questions about what public does here, but not in Riley.

California v. Greenwood – Warrantless trash searches do not violate the 4th amendment.An investigator received information that an individual by be engaged in drug trafficking. The investigator obtained and searched the trash left in front of the individual’s house. Based on the drug paraphernalia in the trash police obtained a warrant and arrested the inhabitants.

Police overturned the lower court ruling in finding that the trash search did not violate the fourth amendment. Court argued that 4th amendment is violated only if individual 1) manifests a subjective expectation of privacy, 2) that society accepts as objectively reasonable (Harlan concurring opinion). Court argues that the expectation of privacy in trash cannot be objectively reasonable because garbage bags are readily accessible by animals, children, scavengers, and snoops, and police cannot be expected to avert their eyes to evidence of criminal activity.

Dissent argues that as long as a package is closed, it ought to be protected by the 4 th amendment. Court argues that a search of trash can reveal intimate details about one’s personal life, like a search of a house. Dissent concedes that when trash is strews about police cannot avert their eyes, but it does not follow that trash in sealed bags should not be protected. Dissent argues further that it should not be dispositive that trash was placed at the curb given that placing trash at the curb is legally required.

Knowing Exposure – if an individual reveals his affairs to another, that information can be conveyed by that person to the government (e.g. bank microfilms of checks, deposits, and other financial records)

o concept used to limit 4th amendment coverage

Privacy and Technology Many issues related to the 4th amendment have arisen because of the advance of technology Advanced technology raises the question of what is “knowingly exposed” to the public

US v. Knotts – using a beeper to obtain information that could have been obtained through visual surveillance is not a search for 4th amendment purposes (court found no search took place when police

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monitored a beeper attached to a drum of chloroform as it travelled over open roads because a person travelling on public thoroughfares has no expectation of privacy in his movements because she can be seen by the public)

It is not clear that the analogy to what the public can see is appropriate since the public do not follow people constantly, and the police do not have the resources to maintain surveillance on someone the same way a beeper can

United States v. KaroAn informant tipped off police that a group of drug makers had ordered ten drums of a chemical used to produce drugs. With the informant’s consent, police replaced one of the canisters with one of their canisters with a beeper inside. Police tracked the can with the beeper while it was on public roads, but eventually lost it and used the beeper to track it to a storage facility. Court considers whether delivery of a can with a beeper inside of it is a search and seizure, and whether monitoring a beeper falls within 4th amendment protections when it reveals information that could not have been obtained through visual surveillance.

Court finds that use of the tracker did not violate 4th amendment protections. Court finds first that the placement of the tracker did not constitute a S or S because the tracked was placed with the consent of the owner. Court finds next that the transfer of the beeper was not an S or S because the transfer itself did not convey any information. Court finds that monitoring a canister within a house does violate 4th amendment rights because it is analogous to entering a house to gather information. However, court argues that prior illegal use of the beeper does not invalidate later legitimate use, and thus court was permitted to track the beeper on open roads. The warrant obtained did not violate the 4th amendment because the improperly obtained information was not necessary for the warrant (though information obtained subsequently was!) Court did not address whether it was a search to use the beeper to track the canister to the storage facility. Seemingly that should have been a search, and since it lead to the information that allowed the police to get the warrant, possibly this should have been a 4th amendment violation.

Dissent argues that receiving a beeper where one expects none infringes on an individual’s exclusionary right, and thus the transfer of the beeper was an S&S. Dissent argues further that the case should be distinguished from Knotts because in Knotts the officers had a visual on the can placed in the car, and thus the beeper provided no information that couldn’t have been obtained visually. Dissent argues that use of the beeper is a violation even when used to find something contained in a car.

Kyllo v. United States – use of a thermal imager without a warrant violates the 4th amendment. Sense enhancing technology cannot be used to obtain information not ordinarily available to the public about the contents of a constitutionally protected area that one ordinarily could not access without a physical trespass into the area. An informant told an officer that an individual was growing marijuana in her house. Officer used a thermal scanner to measure the heat emanating from the house, and in conjunction with electricity bills obtained a warrant to search the house and discovered marijuana grown inside. Lower courts found that the device was non-intrusive, but the opinion was appealed.

Court finds use of a thermal imager is a search under the 4th amendment, at least until thermal imagers are commonly used by ordinary members of the public. Court’s strongest apprehension seems to be the possibility that the thermal imager might reveal details of innocent activity. The court argues that use of a thermal imager is analogous to use of a microphone directed at a house because it can be used to obtain information that otherwise couldn’t be obtained without a physical invasion. Court argues that an interpretation of the 4th amendment as protecting against only physical invasions was rejected in Katz. Court argues also that because of the complexity of technology, the court is not comfortable making determinations on permitting technologies that could advance and potentially infringe on 4th amendment rights. Opinion leaves open the possibility that use of a thermal imager could be appropriate were it to proliferate into common usage.

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Worth noting that all lower courts had ruled the other way because the form of surveillance is non-intrusive and any member of the public could do it (may imply something about how well matches past opinions)Because Scalia had been so critical of Katz before this opinion, it is not clear if Kyllo endorses Katz

Dissent argues that the technology involves nothing more than gathering information that is exposed to the public (heat waves that have left the house), like gathering information on odors coming out of a house. Dissent argues further that the privacy interest is trivial because individuals who engage in uncommon heat-producing activities can insulate that area particularly well. Court emphasizes that the technology is not through-the-wall surveillance and does not reveal any information on the inside of the house.

Were the dissent’s argument to hold, it would imply that Katz was ruled incorrectly because the recorder picked up only information that was exposed to the public (conversation that was escaping the booth)

There is some tension between the emphasis on the sanctity of the home and the statement in Katz that the 4th amendment protects people, not places (that tension arises repeatedly, but especially in this opinion)

o Potential pitfall of this is that may distract from other areas where privacy interests are high, and thus may warrant sanctity (cyberspace)

One practical effect of finding in Kyllo is that pursuing white collar drug crime is more difficult, and thus may shift even more focus to blue-collar drug crime (sales on the corner)

Court’s focus on whether technology is in general use to determine whether police can use it seems to imply that as technology advances, constitutional privacy protection will shrink

If 4th amendment involved a graduated regime, might be possible for police to use semi-invasive technology in some cases (or in cases where law-makers considered justified)

Illinois v. Caballes – Softens court’s stance on not obtaining information in a protected space when only illicit activity will be revealed.D was stopped for speeding. While officer was writing D a ticket, a second officer walked a drug dog around his car. The drug dog alerted the police and the police discovered marijuana. Court considers whether the 4th amendment requires reasonable suspicion to justify using a drug dog (does dog sniff implicate 4th amendment protections?)

Caballes has been seized, but seizure is reasonable even without a warrant because of Caballes’ traffic violation

Court finds that the use of a drug dog does not implicate 4th amendment protections. The court argues that a seizure did not occur because D was not detained for extra time to allow the drug dog sniff. Court argues further that the use of the drug dog does not infringe on a constitutionally protected privacy interest because drug dogs alert only to drugs and “interest in possessing contraband cannot be deemed ‘legitimate.’” Guidelines for use of a dog sniff: 1) reliable (trained) dog, 2) dog sniff only outside of the vehicle, 3) stop does not add to the duration of an authorized Terry stop

If use of drug dogs does not implicate the 4th amendment, hypothetically drug dogs can be used to sniff anywhere where getting there does not implicate a 4th amendment S&S

o So with drug dogs, perform ordinary S&S analysis

The dissent argues that use of a drug dog does implicate legitimate privacy interest because drug dogs frequently err (some estimate up to 60% of the time). Thus, often the alert of a drug dog will prompt police to search, without a warrant, an area in which an individual has a legitimate privacy interest—one not at all linked to contraband or anything illegal. Dissent also argues that individuals have a legitimate privacy interest in not being subjected to the embarrassment and intimidation of a dog search.

Distinguishing searches and seizures in criminal investigative contexto During Caballes oral arguments; Stevens(?) emphasized that people are used to being

sniff tested at airports—though those sniff tests are searches, warrants are not required

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o Counter – Airport searches are different because the search is not undertaken for criminal investigative purposes; airport searches are held to a lesser standard on the basis of the administrative needs doctrine

Process for drug dog searcheso Drug dog sniffso Dog alertso Alert provides PC for a search

Post Caballes, where can police use search dogs?o Key – all issues below litigated same way as any 4th amendment inquiry (nature of the

thing does not matter)o To sniff at the front door of a house?

Counters – to sniff at the front door of a house, police must trespass on curtilage Kyllo – “obtaining by sense-enhancing technology any information regarding

home that otherwise couldn’t be obtained without entry to the house is a search; any information on the interior of a home is an intimate detail

If court ruled in favor of allowing sniffs test at front door, would court be forced to allow use of transmitters on drugs in a house?

o To sniff buses in front of a house?o To sniff cars at an intersection?o To sniff cars in a lot?

Seizures

Property seizure is typically fairly simple—the interfering with an individual’s possessory interest in a thing

The conflict in seizures arises because we expect police to take a proactive approach to fighting crime, but at the same time want to establish some limits on police authority

Main conflict in seizure cases is temporal—when did the seizure occuro Generally, suspect will argue that seizure occurred early and thus behavior has been

protected for a long timeo State argues seizure occurred late and thus suspect had no constitutional protection

before that Types of seizures

o Arrest – Requires Probable Causeo Stop – Requires reasonable suspicion

Seizure line__________________________(official show of authority that communicates to a reasonable person that she is not free to leave)

Not a seizureo Conversations – require nothing because are not a seizure

Consent negates the existence of a seizure; an officer that has consent does not need PC or RS

MendenhallTest 1: A seizure occurs when police engage in an official show of authority that would communicate to a reasonable person that she is not free to leave (objective test)

Bostick

Was interaction consensual? (if yes, no seizure) Did police show authority?

o Did police brandish weapons?o Did police use intimidating tones of voice?o Did police take action that were willing to keep an individual in a

place forcefully Did individual submit to that show of authority?

DraytonAn officer does not have to advise an individual of her rights in order to avoid implicating 4th amendment protections

Hodari D Test 2: *Physical force is applied to the body of the suspect that is sufficient to communicate to a reasonable person that she is not free to leave and police have

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possession or submissionPolice engage in an official show of authority that would communicate to a reasonable person that she is not free to leave (objective test) and that individual submits

*language says that a slight application of physical force would be sufficient, but almost certainly untrue (tapping on window of car would not be a seizure)

Florida v. BostickOfficers boarded a bus and walked up and down the aisle talking to people. Officers asked Bostick if they could search in his bag, and after he gave consent officers discovered cocaine in the bag. Bostick moved to exclude the evidence on the basis that the officer’s entry onto the bus constituted a seizure, or at a minimum interviewing Bostick was a seizure. To support his claim that he was seized, Bostick argues that he was not free to leave because he was on a bus, and so leaving the bus would have left him stranded; he also argued that encounter was coercive because police were blocking the aisle and were armed.

Court finds that the police did not engage in a seizure because the encounter was consensual. The court establishes that the standard for measuring a consensual police interaction is that an ordinary person would feel free to go about business. The court rejects Bostick’s arguments relating to being stranded because such a limitation on movement is self-imposed—it is not a reflection of the police’s actions. The court reinterprets the standard such that a seizure requires that the police give the impression that individuals cannot leave. Court finds further that the encounter was not coercive because the police asked for consent and the interaction was not sufficiently forceful (the police did not point their guns at Bostick).

Dissent agrees with the standard applied by the court, but disagrees with the court’s application of the standard. The dissent argues that police sweeps are intimidating and the police officers stood in the middle of the aisle of the bus and thus a reasonable person would not have felt fee to leave.

United States v. Drayton – Establishes that officers need not advise bus passengers of right to refuse cooperation in a bus sweep in order for a seizure to be consensual.Plain clothes police officers entered a bus and questioned people. The police did not block the exit and maintained a quiet tone of voice. The police notice two guys wearing baggy jackets in hot weather and so asked if he could search them. They gave him permission and he found drugs.

Court finds that the officer did not conduct a seizure because the interaction was consensual. Court re-establishes that in determining if a seizure has occurred courts must consider the totality of the circumstances. Under this analysis court argue that the court cannot adopt a per se role requiring the police to advise passengers of their right to refuse. In the situation at hand the court argues that the situation is not coercive merely because it was on a bus, and it is not dispositive that the officer displayed his badge because most people are reassured by badges.

Dissent argues that consent means something different and distinct when it is given in the context of intimidation. Since consent in this case was given in context of intimidation, it cannot be properly considered consent for purposes of defining a seizure.

In US v. Mendenhall court suggests factors that might indicate a seizure had taken place:o Threatening presence of several officerso Display of a weapon by an officero Some physical touching of the persono Use of language indicating that compliance with officer’s request could be compelled

Some argue race should be considered in “reasonable person” test because minorities tend to fear the police more; thus reasonable minority is less likely to feel free to leave

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In Bostick and Drayton the dissent argues that the test is artificial because people in conversations with the police do not feel free to leave

o Court seems to believe that the compulsion to stay is a good thing and thus this is not a cause for concern

A seizure occurs when there is a show of authority and an individual submits. Conversely, when there is a show of authority and an individual resists, a seizure has not yet taken place. Brower v. County of Inyo – Court held that the use of a roadblock violated 4th amendment right. The argument is basically that

California v. Hodari DHodari fled when the police came around a corner. The police chased him and recovered a bag of crack that he ditched while running. Hodari contends that he was seized when the police started chasing him (argues on plain language of Bostick/Drayton definition of seizure). The police conceded that they did not have PC for a seizure and thus if Hodari was seized when the police started chasing him, the fruits of the seizure (the bag of crack) were products of an illegal search, and thus not permissible.State contends that Hodari was not seized until the cop tackled him.

Supreme Court concluded that Hodari was not seized within the meaning of the fourth amendment when he discarded the cocaine. The court finds that one is seized only when police apply physical force to an individual and that person is within their control, or when police make a show of authority that communicates to a reasonable person that he is not free to leave and an individual submits to that authority. In support of its findings the court makes a public policy argument that individuals should be compelled to comply with police instructions (and thus should not be protected when run from police). Argument assumes that police are acting lawfully within their authority.

Counter to the public policy argument is that 4th amendment is supposed to create incentive for police (not people), and it is questionable whether people know enough about the law to know that will be unprotected if they run (or if court had found other way that they would be protected if they ran)

In opinion Scalia looks to originalism and textualism to justify arguments—these are not the same methods of interpretation applied in Katz.Implication of the holding is that individuals are unprotected until physical force is applied or the police show authority and people submit

Problem is that it is impossible to know if police are showing authority—o Police can claim were having a conversation, but if someone doesn’t want to have one

then can claim that were showing authority to which individual did not submit (I assume they don’t need PC to show authority)

By hinging timing of a seizure on the actions of a citizen (rather than police), the police lose the ability to determine in advance whether their conduct implicates the 4 th amendment. This creates uncertainty because it is unclear when someone “submits” and thus it is unclear when the 4 th amendment is implicated.

Test 2—Hodari Test: o *Physical force is applied to the body of the suspect that is sufficient to communicate to a

reasonable person that she is not free to leave and police have possession or submissiono Police engage in an official show of authority that would communicate to a reasonable

person that she is not free to leave (objective test) and that individual submits Hodari rule raises complicated questions related to controlling/seizing crowds

o Do use of non-lethal munitions count as a show of physical force for a person? If so, does a person have to be hit by them in order to meet the first prong of the test?

o What does it mean for an individual in a crowd to submit?o Maybe it is not a seizure when only one area of movement is denied, but all other are still

open (ie crowds can still flee)

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Warrants and the Meaning of Probable Cause

Background Once it is determined that the Fourth Amendment applies (that something constitutes a search or

seizure) there is a presumptive standard for permitting the S or So Substantive requirement – probable causeo Procedural requirement – warranto Probable cause gives police the flexibility to act early in preventing crime – thus the PC

standard is lower than the standard for finding guilt As use of the word “presumptive” implies, there are many exceptions to the warrant requirement Early case law indicated that when the 4th amendment applied, S & S was never permissible,

regardless of presence of PC Arguments against warrant/PC requirement for S&Ss interpretation of the const

o Textualist – prohibition on S&S says nothing about exceptions for warrants; only says that warrants must have PC

o Textualist – the text was intended to limit warrants, not expand their use (because of abuse of warrants in colonial times)

Arguments for warrant/PC requirement for S&Sso Indiscriminate searches or seizures might expose people to unwanted government

interference without reasono Imposes limits on executive authority of an executive that may act despotically

Protection offered by 4th amendmento Magistrate Review – requires inferences be drawn by neutral 3rd party

The Probable Cause Standard

DefinitionsSource Standard

Brinegar v. United States

facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has or is being committed”

Nathanson v. United States An officer’s conclusory statements are not enough to satisfy PC

Draper v. United States

Probable cause when:1. Reliable informant2. Informant gives such detailed information that warrant

inference of truth3. Part of information provided is corroborated

Spinelli v. United States* Probable cause in cases of informant:1. Basis of knowledge - Details of how affiant acquired

information (Indicates are an insider or are relying on inside source)

Prediction of future activity that is verified (details) – assume that informant knows information because if involvement in criminal plan

Informant asserts involvement (1st hand observation)

if detailed enough, tip may be considered self verifying

o Why should anything be self-verifying?2. Veracity/Evidence of truth – sufficient detail of criminal

activity that magistrate knows the tip is true; based on

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notion that details are evidence of truthfulness(this condition is not met if information is sort that may have been overheard at a local bar)

Tip from citizen informant Prior dealings with informant (track record) Weight of statement v. personal interest?

Illinois v. Gates*

Totality of the circumstances test: Whether, given all of the circumstances set forth in the

affidavit Including veracity and basis of knowledge AND Corroboration – (lower courts have clarified that not enough

to corroborate just innocuous details, but also fishy details)o There is a fair probabilityo that contraband or evidence of a crime will be

found in a particular place concurrence: corroboration through

investigation gives rise to an inference that tip of criminal activity is credible

Ornelas v. United StatesWhen applying totality of circumstances test question is “whether historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to” PC

Maryland v. Pringle

A finding of PC requires only “a fair probability” that a search/seizure will yield evidence, not “beyond a reasonable doubt.”

Fair probability does NOT exist for everyone in a public establishment when police have PC to believe the owner of the establishment is engaging in illegal activity

Fair probability does exist to give police PC over all individuals in a car when police have PC to believe one person is engaging in criminal activity (PC over no one in particular gives PC over all in a car)

Devenpeck v. Alford

Because PC is assessed from the standpoint of an objectively reasonable officer, it is not necessary that the officer know what she has PC to believe in order to justify a warrantless search/seizure as long as from an objectively reasonable standpoint that officer has PC to conduct the search/seizure.

*Though cases framed in terms of PC when have informant, standard applies even without informant

Parties involved in the Probable Cause Determination Reviewing Courts – After Ornelas, ask the same questions as the police – de novo probable

cause determination, but defer to inferences made by police (so not exactly the same questions) Magistrates – Consider same questions as the police – make a de novo probable cause

determination Cops Informants

o Citizen Informanto Confidential Informanto Anonymous Informant

Draper v. United States – Represents the court’s rejection of the notion that it is improper to rely on heresay to prove PC; however court acknowledges accepting heresay is problematic (thus Spinelli).A Federal informant told federal agents that James Draper was peddling narcotics. Informant told federal agents when Draper would get off of a train, what Draper was wearing, and that Draper would be carrying drugs. The police corroboroated all details but the illegal act; based on that corroboration the police had PC for a search.

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When informant gives police tips, the only allegations that interest the police are allegations of criminal activity

Spinelli v. United States – Established a bright-line criteria for assessing probable cause in cases involving informants based on veracity and basis of knowledge; case thereby set the stage for the probable cause guidelines established in Gates. In the case police were informed by an informant that Spinelli was engaging in gambling. FBI followed Spinelli and saw that he recrossed state lines several times, had multiple phone lines, and was allegedly “known” as a gambler.” Court found most of these facts irrelevant, except insofar as they corroborated the tip.

Illinois v. Gates – Offers the most recent standard on probable cause in cases of informants.Policed received an anonymous tip that the Gates’ were drug dealers. The tip included information about an upcoming Gates drug buy in which one of the Gates would drive to Florida, and the other would fly to Florida to drive the drugs back. After the police corroborated the non-criminal allegations, including the suspicious activity of the Gates staying in Florida for only one night, the police obtained a warrant to search the Gates’ house and vehicle. The police discovered drugs and the Gates moved to exclude the discovery because the police did not have probable cause.

The court found that the police did have probable cause. The court found that the anonymous tip alone did not provide police with probable cause under the Spinelli test. However, court overruled the Spinelli test and voice that the proper Probable Cause analysis is a “totality of the circumstances” analysis in which basis of knowledge and veracity are components, but alone are not dispositive. Under the new test the police consider whether given all the circumstances set forth in an affidavit (including veracity and basis of knowledge) there is a fair probability that evidence will be discovered. The court argued that the Spinelli test was deficient because if Spinelli was applied with vigor it would exclude valuable police informant tips, and thus a tip strong in one prong ought to be able to compensate for a weakness in the other prong. Once the court applies this test, the court finds that under the totality of the circumstances there was a fair probability because the information had been corroborated, thus supplementing veracity and basis of knowledge. The concurrence establishes that the test for corroboration is whether it gives rise to an inference that the tip of criminal activity is credible.Gates court motivated by implementing a test that would encourage the use of warrants – court argues that the Spinelli test discourages the use of warrants by holding PC to a higher standard than after-the-fact PC determinations

Court’s finding seems to reflect notion that corroboration of detailed non-criminal facts indicates that an informant had intimate knowledge of a criminal’s actions, and thus is more likely to know about criminal activity.

Argues that an application of the totality of the circumstances test does not warrant an inference that a search will turn up evidence. Argues that investigation did not corroborate all details thus does not give rise to a fair probability that the search will reveal evidence.

Types of Informants – questions of PC and informants arises in the context of the following types of informants—which type is involved has implications for the totality of evidence test

o Citizen informant – average person who witnesses a crime and goes to the police to provide testimony

o Police informant – individual involved in criminal activity, but known to the police who has previously provided tips in exchange for money or leniency

o Anonymous tipster

What police need to have PC to believe:o Arrests – police must have PC that the defendant has committed a crimeo Searches – that police will find evidence of a crime in the place being searched

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Technically seems to be same requirement regardless of what crime police are investigating, but magistrates seem to apply a slightly different standard when issuing warrants for different sorts of crimes

Variation in application of PC particularly likely after Gates because of amorphous standard

Affects of vagueness in PC standardo Permits local variation of PC standard

Positive – permits flexibility Negative – permits abuse

o Reduces power of appellate courts – grants most of decision making to magistrates likely to be familiar with needs of police

Informants and crime prosecutiono Warrant applications relying on tips occur mostly in drug investigations

Tips may be particularly important in this context because are “victimless” crimes and thus leave little evidence

o Searches pursuant to warrants usually uncover evidence May be argument for permitting court to find PC in more circumstances, but

courts that approved highest percentage of warrants had lowest warrant success rate

o Court argues that magistrate determinations on warrant should be given lots of deference because encourages use of warrant (imposes higher standard for assertions of PC that are not supported by a warrant)

Ornelas v. United States – Ultimate question of PC should be reviewed de novo—without deferring to lower court rulings but the court should defer to the police officers and lower courts on all fact finding and inferences to be drawn from those facts.An investigator spotted a vehicle that was the type of vehicle often used to transport drugs and with plates from California (drug source state). The investigator got the DEA agent to run the plates of the vehicle and the search returned a potential drug connection. The officer waited for the owner of the vehicle to return and obtained consent to a search of the car. While searching the car the officer noticed a loose screw and removed a panel to find drugs. D moved to exclude the evidence because his consent to search did not include consent to remove panels of the vehicle; thus in order to remove the panels the officer needed PC. However, the lower court found officer had PC to remove the panel. The appellate court concluded that the lower court did not abuse its discretion in its finding.During investigation, the investigator also checked the names on the motel registry of the motel where the car was parked. This was not a search because the information was knowingly exposed.

Court finds first that court should review probable cause determinations de novo, but in doing so should give due deferences to inferences drawn from the facts by local judges and the police. Court argues that deferring to the lower court would invest all authority for finding PC in local judges (in cases where there was no warrant) and would deny courts the authority to ensure PC is interpreted and enforced uniformly. The court argues further that a de novo review correctly incentivizes the justice system to encourage the use of warrants (because PC determinations without a warrant are scrutnized more closely through de novo review). Court then remanded for the appellate court to apply a de novo standard of review to the case.

It is not clear that as a whole the ruling expands protections against abuse of PC—since the court defers to inferences drawn by local law enforcement, judgments will rarely be revsersed

o Some argue that it is almost like police have been granted as much deference as trial courts

One explanation for this deference might be that if are relying more heavily on police testimony (undergoes increased scrutiny), it might induce police to perjury

Maryland v. Pringle – A finding of PC requires only “a fair probability” that a search/seizure will lead to evidence.

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Police stopped a car for speeding and noticed a roll of money in the glove box. The driver consented to a search of the vehicle and the police discovered drugs. Though the officer could not be certain which of the three individuals in the car the drugs belonged to, the officer arrested all three. The lower court found that finding the drugs did not give the officer probable cause to arrest all three individuals.

The Court of appeals reversed the lower court’s decision and found that the officer had probable cause to arrest all three individuals. The court emphasized that a PC determination is not the “beyond a reasonable doubt” standard of a trial court, but rather requires only a “fair probability.” Thus, the question becomes whether historical facts, viewed from the standpoint of a reasonable police officer amount to a fair probability that a search/seizure will yield evidence. The court argues that in this case, because all of the individuals were riding together in a car, that standard was met. Court qualifies its finding saying that a fair probability does not exist to search everyone in a public business establishment when the police have PC to believe the owner of the establishment is engaging in illegal activity.

Ybarra - Fair probability of criminal activity (PC) does NOT exist for everyone in a public establishment when police have PC to believe the owner of the establishment is engaging in illegal activity. Police entered a bar where they believed the proprietor was selling drugs. Police searched everyone in the bar and found drugs on one person. Those drugs were excluded.

What do Police have PC to do?

Devenpeck v. Alford –PC is assessed from the standpoint of an objectively reasonable officer, and thus it is not necessary that the officer know what he has PC to believe, if PC exists from an objectively reasonable standpoint. An officer pulled over Alford for impersonating a police officer, but arrested (seized) him for recording their conversation. Recording their conversation was not a crime and thus the officer did not have PC to arrest Alford for the alleged offense, but did have PC to arrest Alford for impersonating an officer. The court found that the officer’s subjective intent in arresting Alford was irrelevant because that would make the PC standard vary arbitrarily based on an officer’s knowledge of the law and would give police an incentive not to disclose to arrestees the reason or their arrest (because if gave no reason, then wouldn’t have to defend that had PC for that reason). Case raises possible danger that police can arrest for any activity that seems fishy and justify it after the fact

Explanations of PC standards:o Search – PC to believe that place intend to search contains evidence of a crimeo Seizure – PC to believe a person has committed a crime

Uniqueness of the Warrant Requirement Ordinarily, most legal standards are enforced by after-the-fact review—if someone violates a legal

standard, that person can be sued Limits on searches and seizures are enforced by both before and after-the-fact review

o Before-the-fact review comes in the warrant requirement After-the-fact review may be a better standard because it is adversarial, whereas warrant review

is more cursory and so one would expect after-the-fact review to provide more protection In our legal system S&S with a warrant is strongly preferred over warrantless proceedings,

explanations:o Ex post review is tainted by knowledge of the findings from the searcho With ex-post review, police have an incentive to perjure themselves to justify searches

after-the-fact when have found something Potential benefits of the warrant process:

o Slows things downo Magistrate acts as a buffer

Neutral party Not tainted by the findings

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Warrant process – even though there is a process, there is significant variability in application of the warrant requirement

o Warrants are reviewed by magistrates (hypothetically an unbiased 3rd party)o From text

Must be supported by “an oath or affirmation” Particularly describe “the place to be searched and the persons or things to be

seized” Oath or affirmation requirement

o Requirements Usually comes in the form of an affidavit attached to a warrant application, but

may also come through sworn statements All circumstances giving rise to PC must be presented to magistrate

o Research studies have revealed that many warrants use boiler plate language and descriptions (and thus maybe do not provide as much of a safeguard as would expect)

o While prosecutors could be used to help improve the warrant process (clarify what needs to go into the warrant), prosecutors generally do not want to be involved in the warrant process

The Magistrateo Requirements

There are basically no requirements on magistrates, though courts have rejected the use of magistrates who are paid only for approving warrants

Court has not imposed/provided guidelines to magistrates on minimum standards for finding PC

Court has upheld that magistrates do not have to be lawyers Research has shown great variation amongst scrutiny lawyers give to warrants

Permits judge shoppingo In spite of the variability and vagueness in the warrant system, most warrants reveal

evidenceo The benefit of the warrant may be its burden on the police—slows them down and

provides enough of a barrier that police do not want to go through the rigors of getting a warrant unless think that the search will lead to something worthwhile

The particularity requiremento Standard: must be specific enough to permit an officer “with reasonable effort to ascertain

and identify the place intended”o Court has upheld warrants issued for a floor of a building that permitted them to search

the entire floor, though the police actually only had PC for one apartment on that floor when officer’s failure to recognize the warrant’s mistake (that assumed was one apartment on the floor) was objectively reasonable

Purposes of the particularity requiremento Particular warrants support probable cause because ensure that the officers have some

basis for a search/are seeking somethingo Limits the scope of the search in time and space (not open indefinitely, can’t search

under rugs if are looking for a piano)o Ensures people are not wrongly deprived of their propertyo HOWEVER – courts do uphold warrants with some vagueness in them (e.g. weapons,

narcotics, “evidence of crime at this time unknown”)

United States v. Grubbs – Established that anticipatory warrants are constitutional and the criteria for evaluating an anticipatory warrant is that 1) it is now probable that 2) contraband, evidence of a crime, or a future will be on the premises 3) when the warrant is executed—this means it is probable that evidence will be found and probable that the triggering event will occur. D purchased child porn from the web from an undercover agent. The agent then obtained a warrant to arrest Grubbs after he had accepted the material. The warrant did not specify the triggering condition permitting Grubbs’ seizure so Grubbs moved to exclude the evidence. Though the trial court rejected his motion, the 9th circuit reversed and granted his motion to suppress. The Supreme Court considered two

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questions—1) are anticipatory search warrants unconstitutional, 2) is a warrant insufficient for lack of a triggering condition?

Court held that anticipatory warrants are constitutional and do not need to include the triggering condition. The court argued in favor of anticipatory warrants that all warrants are anticipatory in some sense because are based on whether PC exists to believe that evidence will exist in some place at some future time. The court argues that the triggering condition does not need to be specified in the warrant because there is no general particularity requirement (only places and persons need to be described with particularity). Court argues further that police do not even have to present a copy of the warrant to the SorSd individual (so can’t argue that triggering event needs to be in there so individual is aware of the limits of the search).Court found that that in order to issue a warrant a court must find that a search is probable to discover evidence (evidence will likely be there, and the triggering condition is likely to happen).

Anticipatory warrant – warrant which is triggered by a future condition After Grubbs, to issue an anticipatory warrant must have:

o PC to believe will uncover evidenceo PC to believe condition will occur

Execution of Warrants

Definitions of Reasonableness1. Warrant based on probable cause

a. Execution of warrant must be reasonable (though there is not a lot of clarification on what constitutes reasonable execution of a warrant)

i. Grubbs represents the trend toward allowing more flexibility in the execution of warrants

Knock and announce requirement – absent some lawful and reasonable interest in establishing unannounced entry, Fourth Amendment requires police to knock and announce selves before entry

o Purposes Allow people to save their door Protect some privacy interests (allows people to get dressed)( Protects against violence – shootouts in reaction to someone busting into a

houseo Exception – police have a “reasonable suspicion that knocking and announcing…would

be dangerous or futile, or that it would inhibit the effective investigation of the crime (e.g. by allowing destruction of evidence)

United States v. Banks – There is an exception to ordinary warrant requirements (specifically to the knock and announce rule) when officers have a “reasonable suspicion” of exigent circumstances at the time that took action.Police obtained a warrant to search the house of a drug dealer. They knocked on his door, loud enough that officers at the rear of the house could hear the knock, and then broke through the door after 15 or 20 seconds. The defendant moved to exclude all evidence on the grounds that the manner of execution of the warrant was unreasonable (because the officers did not allow enough time before knocking in the door) and the circuit court granted the suppression motion.

Supreme court finds that the evidence gathered during the search is admissible because the decision to break down the door after 15 seconds was reasonable under the circumstances. The court recognizes the exigent circumstances exception to the knock and announce rule, and holds that the exception kicks in if officers had a reasonable suspicion of exigent circumstances—thus it is irrelevant that D was in the shower at the time of the search because exigency is measured based on the objective perspective of the officer at the time of the search. The court argues that

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this determination must be made based on an analysis of all of the circumstances on a case-by-case basis, and thus does not lend itself to an application of rigid criteria. The court argues that there was exigency in this circumstance because 15 or 20 is sufficient time for a drug dealer to begin destroying evidence (flushing it down the toilet); thus it is irrelevant whether or not the police provided sufficient time for the occupant to reach the door.

Noteworthy that court is basing is ruling on assumptions—that the prudent drug dealer would flush drugs as soon as heard the police knock; fallability of this assumptions demonstrates the deference to police judgment in potentially dangerous situations

Case demonstrates the preference for a case-by-case determination of whether exigent circumstances exist – movement away from rule-like structures to govern reasonableness determination (saw this in movement from Spinelli to Gates)

Post Banks, the knock-and-announce rule is significantly weakened—but is read to be a constitutional requirement, and thus not completely overturned

The 9th circuit had tried to establish a list of discreet criteria to be considered in assessing exigency, but the court rejected this approach (though those factors can still be considered as part of a case-by-case determination)

The holding gives trial courts tremendous power to determine reasonableness of violating warrant requirement

Usually, police must give notice if they search a placeo Since the passage of the PATRIOT ACT, that notice can be delayed for long periods of

time (sneak-and-peak searches) The first amendment does not impose any restrictions on the reasonableness determination –

with a warrant or with PC + exigency police can access information gathered by media or anybody else without justifying need against a higher standard

Muehler v. Mena – Police have significant flexibility in how they can execute a warrant when they can demonstrate serious physical danger (i.e. a killer with weapons); in cases involving infringements on personal rights but potential danger to the police, courts balance the competing interests. Police raided a house where they believe a dangerous gang member lived. The SWAT team crashed into the house, handcuffed everybody, and detained all found individuals in handcuffs for the duration of their search. Mena then sued arguing that the police used unreasonable force in detaining her by keeping her in handcuffs through the entire search.

The court finds that the authority to detain an occupant of a searched house gives police the authority to use reasonable force to detain that occupant, and thus Mena’s detainment was reasonable. The court argues that in this case the use of handcuffs was reasonable because the benefits of the handcuffing (ensuring the police were safe) outweighed the costs of the handcuffing. The court argues that the government interest in using force to detain will always be high when there is a threat from dangerous criminals. Thus court overrules the lower court in finding Mena’s detainment did not violate the 4th amendment.

Court balances the interests at stake and finds Mena’s interest in not being handcuffed is relatively trivial as compared to the police interest in preventing police injury

Concurrence argues that the case should be remanded to determine whether Mena was detained longer than the search (because the government interest in detaining should have ended at that point). The dissent also argues that giving full deference to the jury, there is evidence that the jury could have interpreted to indicate that the use of force was unreasonable (not initially, but in prolonged detainment)—the court points to the fact that Mena was a small woman, she cooperated fully, and the officers didn’t follow standard SWAT procedure.

Los Angeles County v. Rettele – Court will permit significant privacy intrusions in instances implicating police safety. The police charged into the wrong house and found two people naked in bed. The court found that the officers were justified in forcing the people to stand naked for the amount of time necessary

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to ensure there were no dangerous weapons in the room. However, those privacy intrusions must not be unnecessarily prolonged.

Wilson v. Layne – Bringing the media or any third party not related to the execution of a warrant that goes inside the home violates 4th amendment privacy protections.Police were pursuing a fugitive. They got a warrant to search one of his possible locations, which happened to be his parents house. Though the fugitive was not in the house, the police pinned and detained the fugitive’s parents while accompanied by two members of the media. The home owners sued arguing that the scope of the search the authority granted by the warrant.

The court held that media ride-alongs are not constitutional. The court found that police actions in executing a warrant must be related to that warrant and argued that the presence of media members was not related to the warrant against the fugitive. The court rejected arguments that the media served a legitimate purpose in executing the warrant (ensuring the police did not overstep bounds, protecting rights of Wilsons), arguing that a general public relations benefit does not outweigh the constitutional protections against intrusion into the home. Rather, the court found that individuals brought into a home during a search must serve a purpose related to the execution of that warrant.

Wording of ruling leaves open the possibility that a 3rd party could ride-along if it was fulfilling the role of preventing abuses, but overall case seems to imply that 3rd parties cannot go into homes

o Conversely, case also potentially implies that 3rd party presence is not limited in any other situation

Layne is an exception to the traditional all-or-nothing approach to privacy protection—though the police have the authority to enter the house, that does not give them authority to bring anyobody they want to bring into the house

o May merely be a reflection of the heightened privacy interests in the home 2nd Circuit has invoked Wilson to limit “perp walks” in which an alleged perpetrator is purposefully

paraded in front of the media (even if they do not need to take her anywhere)o Nevertheless, this finding has been moderated in a separate holding finding that when

the government alerts the media of an arrest and the media films a legitimate perp walk (one where an alleged perpetrator is being taken someone through public space), no 4th amendment concerns are implicated because one does not have a legitimate privacy interest in not being seen in a public place

Exceptions to the Warrant Requirement

Definitions of Reasonableness for 4th Amendment PurposesWarrant based on Probable CauseProbable Cause + Exigency

Danger of Physical ViolenceDestruction of EvidenceHot Pursuit of Dangerous Fleeing Felon

Emergency Aid Doctrine / Community Caretaking

Exigent CircumstancesMincey v. Arizona – Exigent circumstances do not provide a limitless exception to the warrant requirement, but rather are bounded by the time period for which the exigency exists; once exigency ameliorated the warrant exception ends (scope of search must be tailored to the exigency).An officer set up a sting operation to purchase drugs from a drug dealer. He burst into D’s house with a group of other officers, and was shot and killed. Homicide investigators then entered D’s house and

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performed an extensive search without a warrant. D moves to exclude all evidence discovered during the search as a violation of the 4th amendment.

The court holds that information obtained once the exigency no longer existed must be excluded and that investigation of a murder scene is not an exception to the warrant requirement. The court recognizes some exigency because it does not question the officers’ right to enter the apartment. The court argues that warrantless searches are per se unreasonable. The court argues further that a crime scene exception is not justified on the theory that an alleged criminal has forfeited rights to privacy because this view would find a defendant guilty before a trial. The court also rejects the argument that a crime scene implies an emergency situation; the court finds that police have the authority to search while a true emergency situation exists—while police are not sure if other dangerous criminals may be around. Court also finds that no balancing of public interests suggests that the court should find a murder scene exception because murders are not substantially worse than any other crimes (and court is not willing to permit warrantless search of any crime scene)

Consider first what the police needed exigency to do—o The first fourth amendment event was entering the apartment—police had the

authority to entero Second fourth amendment event involved the police search—this search is

challenged Though the police claim exigent circumstances in the case, it is not clear what the exigent

circumstances were

When assessing exigency in a criminal context, examine each item discovered item-by-item to determine if police has exigency with regard to searching for that item (once exigency is ameliorated, e.g. suspect is neutralized, police cannot continue the search)

o In exigent circumstances cases involving danger to the police, police can search for people and search for weapons

Police can thus search anywhere it is objectively reasonable to think police might discover people or weapons—thus search bound geographically, temporally, and spacially by exigency

Types of exigent circumstances cases:o Exigent circumstances justify warrantless entry, but police overstay exigency (Mincey)o Fleeing suspects – “delaying would gravely endanger officers lives or the lives of others”

Warden v. Hayden – police told that a robber entered a house; police enter house and find man, guns, and money

Justification – deference to police in context of possession of guns—court willing to give police extra flexibility when police are in danger of being killed; once that danger no longer exists (once suspect found), police must stop search

o Destruction of Evidence – if officers do not search immediately, evidence will be destroyed

Mendez v. Colorado – police can search a hotel room from which odor of burning marijuana is coming (even though offense minor)

United States v. Dickerson – no need to knock and announce when there has been a noisy encounter outside because people may already be inside destroying evidence

Knock and Talk Strategy – Police listen at door, knock on door, and peer inside to see if can spot any drug activity, and enter and search if they see any

Declared unconstitutional in United States v. Johnson, but only because court disbelieved testimony that officer had PC (had seen drug activity)

4th amendment implications – police listening at door – maybe like bugging the phone booth; police crossing your curtilage, etc.

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o Community Caretaking – if officers enter house to protect a community member (e.g. the neighbors have not seen someone leave the house in several days)

Reasons allowed Absence of law enforcement motive mitigates privacy concerns Potential for overzealousness reduced when police looking out for

community Concerns – police might invent community caretaking motives

O.J. Simpson Case – Police found glove during an unwarranted search that they claimed was justified because they were concerned about OJ Simpson’s health because they had seen a spot of blood on his car

o Explanation seems unlikely since took four officers to the Simpson house

Emergency Aid Doctrine / Community CaretakingBrigham City v. Stuart – Police have exigent circumstances to enter and search a house, without knocking and announcing when the police have an objectively reasonable basis for believing an occupant is injured or seriously threatened.The police responded to a noise complaint. From outside the back door the police saw a drunken teenager punch an adult in the face. The officer entered the door and announced his presence, but no one noticed him; he then entered the center of the room and the altercation stopped. The officer then arrested Ds for disorderly conduct, intoxication, etc. The lower court suppressed the evidence found after the police officer entered the house because it did not give the police officer probable cause to believe that someone was very seriously injured.

Court finds that the officers search of the home without knocking and announcing was reasonable and thus did not violate the 4th amendment. The court acknowledges that searches without warrants are presumptively unreasonable, but argues that there is an exigency exception to the warrant requirement to assist persons seriously threatened. The court rejects any arguments that the exigency exception based on community caretaking should be limited to instances where police enter the house to protect (rather than to make an arrest); the court argues that existence of exigency is an objective analysis). Under an objective analysis the court finds that the officers’ entry was plainly reasonable because the risk of violence was ongoing, and it was reasonable for the officer to believe that the violence could escalate.

Standard – Police allowed to enter when have an objectively reasonable basis for believing an occupant is injured or seriously threatened

o Objectively reasonable basis for believing an individual might need helpo Objectively reasonable basis for believing violence is just beginning (there will be future

violence) This standard marks a significant departure from the prior law – the Utah

Supreme Court, for instance, found that emergency doctrine only kicked in when police had reason to believe someone was unconscious, semi-conscious, or dead

Litigating these caseso Break down the moment at which the 4th amendment is first triggered

4th amendment triggered when police enter the back yard (curtilage) Justification – police had PC because saw juveniles drinking in the

backyard (implies PC sufficient, warrant not necessary for entry onto curtilage in this context)

4th amendment triggered again while police enter house Justification – Emergency aid doctrine

Case is important because it provides nation with clarification on the emergency aid doctrineo Concern in these cases is that police can manufacture exigency

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Response – ***the authority to search is limited to searching to address the exigency (no unbridled access)

Brigham City is a Utah Supreme Court decision, though the ruling does not apply nationally, many states have elaborated similar emergency doctrines

Rationale for holding – Dual role of police as enforcers and protectors in our society; police officers motivations in entering home are different when they enter to protect people versus when they enter to arrest/punish people and thus different limitations on police entry into the house should apply in each situation

o Demonstrates societal concern for police role in domestic disputes especially, but also to investigate when an elderly person hasn’t been seen in a few days, etc.

There is some thought that because of the dual roles of police officers, different rules/limits on police authority should apply depending on which role they are filling

o However, if different rules should apply, how should the law decipher whether police entered a house for punitive or protective measures?

Consider preferences of people inside the house—often won’t reveal a clear answer because police entry often involves protective measures for one person in the house, but punitive measures for someone else in the house?

Consider subjective intent of police – court in Stuart rejects this approach, but it has been accepted in other jurisdictions

Consider objectively what one would expect people inside the house to want Because there is no good clear way to distinguish when police are in a caretaking role, the law

applies a uniform standard and allows police to enter homes when fulfilling a community caretaking role—certain rights are thereby forfeited so that the police can better protect people

Destruction of EvidenceBackgroundVale

Police arrest a man outside of his home who is suspected of drug dealing The man’s wife and brother show up to the house; the police use their return as an excuse to

search the home on the basis of an exigency for destruction of evidence Supreme Court finds the search unconstitutional

o Court motivated by the notion that the officers could have obtained a warrant to search the guy’s home when they got the search warrant for the guy, but they didn’t—the destruction of evidence doctrine thus use to circumvent the warrant requirement for entry into home

Supreme Court defines a new standard for searching the home – police need an objectively reasonable basis for believing evidence is in the process of being destroyed

Lower courts softened the standard by substituting one of the following standards:o Police have exigency for destruction of evidence if they have an objectively reasonable

basis to believe there is a reasonable threat of the destruction of evidence ORo Police need an objectively reasonable basis for believing evidence is in the process of

being destroyed in order to search, but Police are allowed to secure the premises while they get a warrant

Welsh v. Wisconsin – Police do not have exigent circumstances to enter a home for fear of destruction of evidence when the crime at issue is relatively minor (essentially overturned in next case).D was seen driving into a field where he abandoned his car. Witnesses reported that D was very drunk. Police used the vehicle registration to locate D’s home, and then entered the home without a warrant to find D drunk. D moves to exclude the evidence as the subject of an illegal search.

Court holds that in assessing exigency, the court must consider the gravity of the underlying offense, and that it is almost impossible to rebut the presumption that a warrant is necessary to intrude into the home when the crime in question is relatively minor. The court argues that the police were not in hot pursuit and there was little threat to public safety because D had already abandoned his vehicle.

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The dissent argues that a test of exigency based on severity of a crime will hamper law enforcement by introducing additional uncertainty into the consideration of whether exigency exists.

Demonstrates the hierarchy of privacy protections—while police could have arrested D if found in public, police did not have the authority to enter his home because homes are entitled to heightened protection

Some concern that if the courts looked to punishment of a crime to determine exigency, it would give the legislature an incentive to inflate sentences

Illinois v. MacArthur – If police have probable cause to believe that a crime is occurring and a reasonable basis to believe that if they do not enter a home evidence will be destroyed, police may use the least restrictive means available to secure the evidence while a warrant is obtained (if possible).Police accompanied a woman to her trailer to keep the peace as she packed her belongings. When she was leaving she told the police that her husband had dope in the trailer. When the man exited the trailer, police prevented him from returning inside to the trailer while another officer obtained a search warrant; when the man needed to enter the trailer to place a phone call, the police officer accompanied him. The man seeks to exclude the evidence of the dope found during the search on the basis that 1) keeping him outside was an illegal seizure, 2) accompanying him into his house without a warrant was an illegal search.

Court finds that the warrantless seizure and search were not unreasonable. The court argues that 1) the police had probable cause, 2) had reason to believe that D would destroy evidence, 3) used the least limiting approach possible, 4) restrained D for a relatively very limited period of time. The court’s holding implicitly overturns the holding in Welsh protecting search of the home, except in that a search of the home may warrant slightly more protections than other approaches. Concurring opinion – when D was inside the trailer, the police had sufficient reason to believe that the evidence would be destroyed to warrant the police’s entry without a warrant. Thus, police had authority to use less invasive measure to achieve the same ends. Court potentially influenced by the fact that they could have placed D under arrest while getting the search warrant—thus means used were considerably less restrictive

Fact that in this situation the police could have arrested D without a warrant, but could not have entered his home reflects the hierarchy of privacy interests under 4th amendment considerations – the home is granted more protection than any other space

Dissent argues that the search was unconstitutional because the crime was relatively minor and implicates major privacy concerns.

Standard that emerges from the case; if police are faced with a destruction of evidence problem, police can use the least restrictive means possible to maintain the security of the evidence; typically this means the police have:

o PCo Objectively reasonable basis to believe there is a reasonable threat of destruction of

evidenceo Police use the least restrictive means possible to secure the evidenceo As little time passes as possible (police infringe on rights for as little time as possible)

Litigating the caseo Police have probable cause

Veracity – Tip from citizen informant meets the veracity requirement Basis of knowledge – requirement met because informant claiming first hand

knowledge Issues confronted

o Can police keep D outside while they get a warranto Can police follow D inside when he went in to get things

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Court answers the second question by answering the first—if police can keep outside because of exigency caused by potential destruction of evidence, then can follow him inside

Court does not overtly explain why the court might have justification for temporarily seizing D (seizure), but not for entering his house to search

There is some concern that the exigent circumstances exception is easy to manufacture—police can always find exigent circumstances if the police think a suspect knows he is suspected of a crime

Plain View DoctrineElements

1. Police lawfully occupy the place from where view / observe the itema. Item is in plain sight/plain smell (implied in 1)

2. Police have lawful right of access to the item – can lawfully get to a place where can touch item3. Incriminating character of the item is immediately apparent – PC

Doctrine operates when police want to seize an item when they are searching pursuant to a warrant or warrant exception and find something else incriminating

Introductory Caseo A guy was speeding and had a cracked windshieldo Officer pulled guy over and looked into the car to identify the VIN number (as he was

legally allowed to doo While looking, he saw a gun handle sticking out from under the driver’s seato In context, officer was allowed to seize the gun based on the plain view doctrine

Arizona v. Hicks – Defines scope of the plain view doctrine: plain view doctrine does not permit any additional searches, only the seizure of an item in plain view.Officers obtained a warrant to search an apartment when a bullet was fired through the floor of the apartment, injuring a man in the apartment below. While officers were searching, an officer noticed some particularly expensive stereo equipment in an otherwise poor apartment. He picked up the stereo and turned it over to obtain the serial number and called in the serial number to police headquarters. He learned that the stereo had been stolen during an armed robbery. The court then considers whether picking up and flipping over the stereo constituted an unconstitutional search.

The court finds that recording the serial number was not a seizure, but moving the stereo equipment was a search, and thus was an unconstitutional invasion of privacy. The court finds that taking action unrelated to the objectives of an authorized intrusion (performing any unwarranted searches) constitute new invasions of privacy—in this case the action was unrelated to the objectives of the authorized intrusion because the police were searching for weapons or suspects, neither of which could have been under the stereo. The court finds next that police may seize evidence in plain site without a warrant only in certain circumstances—these circumstances appear to be when obtaining a warrant would entail inconvenience or risk to the police. The court argues that there is no justification for permitting police to seize an item for which police could not have obtained a warrant, had police known the item was on the premises. The court proceeds to reject the dissent’s view that the rules that the search can be justified in this instance on the basis that it constituted something less than a search because defining tiers of searches would introduces uncertainty into the analysis.

Dissent argues that if the serial number had been visible it would not have been protected (because recording was not a search), and thus the line drawn by the majority is arbitrary. Dissent advocates an interpretation of the 4th amendment in which a search cannot be justified under the plain view doctrine, by a cursory inspection can be justified as long as it is accompanied by reasonable suspicion. The court dissent argues that a cursory inspection involves no exploratory rummaging, and thus that some brief searches are so minimally intrusive that they are justified on the facts of a case. In other words, potential gains for police are big, but potential costs to individuals are small.

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Litigating Hickso Problem is that police expanded scope of legal search by picking up stereo

To litigate, argue that could have found weapons under the stereoo State concedes that did not have PC to look for stolen stereo equipment

State had plausible arguments for PC for searching stereo equipment – had found guns and a ski mask

The plain view doctrines give PC for additional seizure only when an officer is already engaging in a lawful activity and is legally in a place where she can gain physical control over the thing

Criticism of Hickso Reasonable Expectation of Privacy

Scalia finds search unconstitutional because produces a “new invasion of privacy”

He omits to consider (per Katz) whether owner had a “reasonable expectation of privacy” as almost all litigators would have considered

o May just reflect Scalia’s previously vocalized view that Katz test was wrong

o Scalia suggests the default arrangement is warrant is required warrant is required Scalia focuses on fact that officer lacked PC to rule on the issue; lack of PC is

related to the warrant requirement In focus, Scalia does not consider directly whether officer’s actions were

reasonable, as plain text of the 4th amendment would suggest the inquiry should be (instead adopting the view that reasonableness requires a warrant)

In this way, court concedes loss of privacy might be marginal and that loss to law enforcement may be great (suggesting activity is reasonable), but does not find that activity is acceptable

Like exigent circumstances doctrine, plain view doctrine serves to effectively limit officers’ ability to conduct wide-ranging searches of private dwellings absent a warrant (even with a warrant)

The rationale behind the plain view doctrine drives how it will be applied; rationaleso Inconvenience and risk

Inconvenience is probably not alone Risk – suggests plain view doctrine should be applied only when there is some

exigency – when thing seen involves weapons or drugs If exigencies don’t exist, then probably cannot use the plain view

doctrine! (MacArthur), but rather should get a warrant Reason that need exigency is that the court assumes a warrant is

required and thus there must be justification for any exception to the warrant requirement

o If are legally there, then are not committing any additional invasion of privacy – suggests broader application of plain view doctrine

Horton v. California – Eliminated the “inadvertently discovered” requirement of the plain view doctrine.D robbed the leader of a coin club. Police obtained a warrant to investigate D’s house for proceeds of the robbery, but due to an oversight the warrant did not include ability to search for guns (even though police knew guns were likely to be in the house). The police discovered guns in plain sight and seized them; D moves to exclude the guns on the basis that the guns were not discovered “inadvertently.”

Court finds that evidence does not need to be discovered inadvertently in order to qualify for the plain view doctrine. Court explains the contours of the plain view doctrine—the doctrine requires that 1) the evidence is in plain site, 2) the evidence is plainly incriminating, 3) the officer is lawfully in a place where saw the thing, 4) the officer has lawful access to physically possess the object, but the object does not need to be discovered inadvertently. The court argues that the inadvertence standard undesirably injects subjectivity into the inquiry because it is based on what the officer was expecting to find. The court argues further that individuals are already protected because officers have no reason not to include something in a warrant, if they have PC for it

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because doing so will expand the lawful scope of their search. The court also argues that the inadvertence requirement may lead to the exclusion of valuable evidence for which officers did not yet have sufficient evidence to develop PC (may suspect will find something because usually do in that situation, but don’t have evidence to look for it). Court argues further that as long as the search does not exceed beyond the scope of the warrant, the search does not implicate any 4th

amendment issues.

Reason for inadvertence requirement – courts concerned about pretext (inventing justifications for a search so that can actually search for something else)

Concern is that if police get warrant to search for evidence on a crime are almost certain a criminal committed when suspect the criminal of other crimes, any evidence found to support crimes they suspect the criminal of committing will be inadmissible

o Police could do a lot more investigation to get PC on other crimes, but effectively raises costs for investigations of the most dangerous suspects (those suspected of several crimes)

The Automobile ExceptionQuestion of Automobile Exception – are there any contexts in which police possess a vehicle but must get a warrant to search it

4th amendment law related to automobiles has evolved over time as automobiles have become increasingly common

Developments in 4th amendment law related to automobiles:o Carroll v. United States – Police can search a vehicle without a warrant when the police

have PC and if obtaining a warrant is not “reasonably practical”—e.g. the vehicle is in motion—because of the exigency implied by the fact that vehicles can be driven away

Argument – automobiles are fleeting targets so there is an exigency that warrants seizing them; there is no hierarchy of 4th amendment events so if can seize them, then can search them

Analysis proceeding from perspective of innocent person – innocent would rather police search immediately so can proceed on way

o Though courts deny hierarchy of 4th amendment events for vehicles, it seems likely that courts endorse such a hierarchy for homes

See MacArthur – can seize an individual to secure house while obtain a warrant

Dissent concerned that negatives criminal activity should not close eyes to requirements of fourth amendment

o Chambers v. Maroney – Exception to warrant requirement to search a vehicle extends to instances where police have already impounded the vehicle if the police could have searched the vehicle when it was impounded because of concern that would force police to search vehicle before impounding in potentially unsafe situations for police

Again, case only extends to vehicles that were moving when apprehended Suggests reasonableness as the requirement for addressing whether search is

permissible, rather than warrant Carroll/Chambers justified on diminished expectation of privacy in a vehicle:

Individuals are forced to have their vehicles inspected so the public has access to a vehicle

Vehicles are made for transporting people in public places; people could be in an accident at any moment and the contents of their car might be thrown into the public – (this is distinct from the home or luggage where one protects privacy and thus has expectation of it)

o Possible exception includes a car parked at home – however this exception is not to protect the car, but rather to protect the home (and this probably isn’t good law any more)

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o In some case, Carroll and Chambers was extended to vehicles parked in a public place (again, because of mobility of vehicle)

o South Dakota v. Operman; Cady v. Dombrowski – authority to search vehicle extends to all parts of vehicle (including trunk and glove compartment)

o Exception to automobile exception for private containers United States v. Chadwick – Police do not have the authority to search

containers within a vehicle just because the container is put into a vehicle Police wanted to search container so waited until it was loaded into a

vehicle Court rejected diminished expectation of privacy argument because

expectation of privacy high in locked luggage Sanders – Extended Chadwick to apply to closed containers (a suitcase), even if

police wait until the vehicle is movingo Robbins – Protection of containers within a vehicle is extended to cover even bricks

wrapped in opaque plastic Why doesn’t this change analysis of tape?

o United States v. Ross – qualifies exceptions to automobile exception – when police have PC that extends to entire vehicle, scope of a search extends to entire area in which object of the search may be found and is not limited by possibility that will require separate acts of entry; scope of search not defined by nature of container, but by object of search and where have PC to look

Rule after Ross: If PC is container-specific, must have a warrant If PC is vehicle-general, police can search anything (even private

containers)

California v. Acevedo – Case overturns exceptions to automobile exception and finds that different standards do not apply to searches depending on whether PC is container-specific or vehicle-general.Police received a tip from a federal DEA agent that a package was being sent through the mail containing drugs. Police seized the package and arranged to have it picked up as scheduled so police could follow the recipient back to his home. After recipient entered home, D arrived to the recipient’s home and left carrying a brown paper bag that he then placed in his trunk. The police then stopped him, fearing a loss of evidence if they allowed him to get away. Police opened the trunk. Lower court cited Chadwick in excluding the evidence because PC was item-specific.

Court holds that the law does not distinguish based on whether PC is container-specific or vehicle-general, and thus police have the authority to search all containers found in a vehicle without a warrant, if the search is supported by PC. The court argues that the case closely resembles Ross and considers whether Ross requires police to obtain a warrant to open a sack in a moveable vehicle; court concludes that Ross does not require a warrant to open the sack. The court argues that there is no principled distinction between a container found in a general search and a container found in a specific search warrant treating them differently. Court argues further that there are few privacy implications involved in distinguishing between the two, though there is a substantial law enforcement interest in treating them both alike. Court argues further that privacy concern may swing in favor of permitting police to search containers in vehicles because it implicates privacy concerns less than forcing police to search for evidence in the entire vehicle (everywhere else). Court argues further that the prior rule introduced uncertainty into the system which complicated police activity and also ironically limited police authority to search in the places where they were most likely to discover contraband (while allowing search elsewhere).

Concurring (Scalia) – Does not assume a warrant is required. The only thing necessary for a 4th amendment search is reasonableness (on plain language); thus inquiry is into whether a search is reasonable under the circumstances—on this basis ruling is not ground breaking, but merely extension of past inquiries into reasonableness.

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Dissent argues that court should maintain the distinction between item-specific and vehicle-general searches. Dissent argues that the distinction provides a restraint against police practice and represents the policy judgment that the decision to invade the privacy of an individual’s personal effects should be made by a neutral observer (magistrate). Court has replaced prior anomaly in jurisprudence with a worse anomaly in which it is acceptable to search an item if someone puts it in their trunk, but not if they are carrying it. Also rejects notion that prior standard put serious strain on law enforcement.

In Acevedo, court backs down from assertion that one has no privacy expectation in a car--- acknowledges that expectations of privacy in parts of a car and luggage may be the same, but finds that exigency applies to containers in vehicles

o After Acevedo/Houghton, officers still need PC to search packages outside of automobiles (Chadwick- heightened expectation of privacy; no exception to warrant requirement for luggage)

However- arguments for searching inside of autos could apply to searching packages anywhere – maybe suggest reasoning moving in direction of eliminating the warrant requirement

California v. Carney – Automobile exception applies to mobile homeo Lesser privacy expectation derives from vehicles capacity to drive on highway

Previously, cases imply exception applies because of exigency (though Chambers suggests exigency is not the real problem, or courts will find constructive exigency)

o Leads to question of what privacy expectation has to do with warrants—isn’t privacy expectation related to requiring PC, which is required whether or not need warrant?

May suggests a tougher PC standard when need a warrant (PC+ versus PC) While court overruled Chadwick, court did not overrule Sanders—warrant is still required to

search footlocker Car search exception lowers cost of searching cars

o If no exception, would raise cost of searching cars, and presumably would lead to fewer car searches

o Simultaneously would lower the relative cost of other searches This would thus probably lead to more house searches—thus greater privacy

protection for house may mean overall more privacy intrusion General Point: making searches outside home easier to justify may have effect of

limiting number of home searches and make for increased privacy protection Argument for the container-specific (need warrant) / car-general (no warrant) rule – containers

are easier to secure than a vehicle, and one has a heightened expectation of privacy in a container

Wyoming v. Houghton – Police officers can search even private belongings within a vehicle (e.g. a purse) when belongings are capable of concealing the objects of the search because of the likelihood that everyone in a car is working together.Police pull over a car. The driver has a syringe in his pocket that he tells the police he intends to use to take drugs. Police then search the vehicle. The officer found fresh needle marks are a passenger’s arms, and elect to search her purse where the officers found drugs. The appellate court found that this search was illegal because searches are illegal when they involve the search of the personal effects of a passenger who is not suspected of criminal activity.

The court finds that officers with PC to search a car can inspect passenger’s belongings in the car that are capable of concealing the object of the search. Court argues that should first consider original intent of the Amendment to determine if search is permissible, but where that does not yield a result, court does not adopt the warrant requirement interpretation, but rather asserts that it must evaluate the search under traditional standards of reasonableness by assessing the privacy intrusion against the legitimate government interest. Court argues that under the original meaning of the amendment as interpreted in Ross, search of items contained in a vehicle is permissible, and there is not a convincing reason for restricting the application of this logic to

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vehicle passengers. Court proceeds to balance privacy interests against law enforcement interests and finds that permitting a search accords with the balancing test. Court argues that passengers possess a reduced expectation of privacy and that government interests are substantial because passengers are often engaged in a common enterprise with the driver and might be able to hide contraband in passenger’s affects, or passengers might start claiming al incriminating evidence in the vehicle.

Dissent writes from perspective of warrant requirement and argues that in prior case on search of passengers, the warrant exception did not apply (US v. Di Re). Argues that state’s legitimate interest does not outweigh privacy concerns because spatial association does not mean that passenger and driver are in association. Argues further that the rule could be every bit as unambiguous as the majority’s view, but it would just protect more privacy.

After Acevedo the authority to search an automobile includes the authority to search all containers therein (period, full stop)

United States v. Di Re – Searches of passenger’s clothing not included within a lawful searcho Wyoming v. Houghton – Searches of passenger’s personal items is within a lawful search

Thus whether police can search a jacket may depend on whether passenger si wearing the jacket

Importance of Houghton may be its methodology:o First – consider whether action was regarded as an unlawful search or seizure under

common law when Amendment was framed If no answer, then:

o Consider balance of individual privacy and law enforcement need

Vehicle Search Case Exercise Evidence subject to suppression

o Wife’s testimonyo Defendant’s original statemento Physical evidence – knife, duct tape, clothing, fluids, audio tape

D’s confession D’s map Victim’s body

After wife’s statement, have PC to:o Search vehicle o Search farm (PC probably not necessary because of open fields doctrine)o PC to search home (because he took wife back to home)o Arrest D

Warrant Requiremento Search vehicle – no (auto exception)o Search farm – no, nothing requiredo Search home – yeso Arrest – no (have veracity and basis of knowledge)

PC to search vehicleo Issue with audio tape—the audio tape is a container inside the vehicle

The scope of the search is bounded by PC (whether or not are searching pursuant to a warrant)

PC is evidence, not hunches; state must justify listening to tape based on actual evidence

D argues (plausibly) that searching the tape was not reasonably related to evidence (PC)

Arguments to admitting tape:o Listening to the tape was not a search

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One has no reasonable expectation of privacy in a tape because it was knowingly exposed to the public – any one who rode in the car could have pushed it into the tape deck and listened to it

o Inventory – Police had to inventory/catalogue everything in the car to protect D’s possessions

Thus though listening is a 4th amendment search, it does not rest on PC, but on protecting D

o Inevitable discovery Wife referred to tape in later conversations; eventually would have listened to

tape and discovered its contents

Arrests & Search Incident to Arrest For an arrest in public, no warrant is required An arrest is a seizure Sources of legal rules that govern arrest:

o Common Law Misdemeanors – Arrests for misdemeanors without warrant were prohibited

except for breach of peace in officer’s presence Felonies – warrantless arrests generally allowed as long as reason to believe

arrestee had committed a felonyo Statuteso The Constitution

All custodial rules must be based on PC Constitutional rule on warrants unclear – in at least some situations can arrest

without a warrantUnited States v. Watson – Arrest Watson without warrant on a reliable tip that he had stolen credit cards

Court finds statutory language to indicate it is not unreasonable under Fourth Amendment for postal inspectors to arrest without a warrant if have PC); court analyzes precedent and discovers rule on arrests for felonies without warrant (in reality, the history and statutory language are ambiguous. Court finds fact that CL accepted warrantless arrests indicates that it is not contrary to constitution. The court does not balance the interests (as the court would now).Concurrence – noted anomaly created by court’s decision because arrest is a seizure and constitutional provision seems to impose same limitation on searches and seizures; also notes anomaly that arrest is much more invasive personal intrusion than a search (even a search of the home) ,but ultimately defers to history on judgment that not allowing could severely hinder law enforcement

Dissent – Argues warrant should be required, but warrantless searches should be allowed for exigencies, and exigency will usually exist. Dissent argues that CL does not permit warrantless arrest as majority indicates because CL felony definitions were very different and many crimes now considered a felony were then merely misdemeanors; argues further that long-standing practice does not immunize the practice from scrutiny. Dissent argues further that there is no better reason to trust the biased view of a police officer that there is PC for an arrest than view that there is PC for a search. Dissent argues further that there is no significant government interest because can arrest without a warrant if there is an exigency.

Balance of interests in arrestso Privacy considerations in arrest

Invasion and disruption of privacy which stem from arrest are ordinarily much greater than from a search

Arrests are frightening and humiliating, involve use of force, may occur in public, are taken down to station and finger printed

Modern rules governing arrest

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o Misdemeanors – warrantless arrest allowed for offenses committed in officer’s presence and for certain offenses committed outside presence (e.g. domestic abuse)

o Felonies – warrantless arrests based on PC (CL rule) Riverside v. McLaughlin – Defendant arrested without warrant and held must receive a judicial

determination of whether arrest had PC within 48 hourso Hearing within 48 hours not dispositive on permissibility if can prove hearing

unreasonably delayed (e.g. for gathering more evidence) Law suggests arrests are not as important (invasive?) as house searches – or at least suggests

Fourth Amendment privacy protections are greater than liberty protectionso Implication of this suggestion is shifting of legal protections from poorer people to

wealthier people because wealthy are more likely to have a large home, which is offered the most protection

Watson suggests that dissent’s suggestion would burden judicial system with endless suits on existence of exigent circumstances

Arrests inside homeso Payton v. New York – court struck down NY state statute that authorized warrantless

entries into home for making felony arrests However, court did not require the use of search warrants—arrests warrant

sufficient as long as unbiased magistrate reviewso Steagald v. US – Arrest warrant not sufficient to search home of someone other than the

arrestee Court found drugs when went to arrest someone at someone else’s house

because warrant did not protect the other person’s privacy interests (magistrate did not review PC as to the individual who’s house was searched)

Atwater v. Lago Vista – Elucidates the relationship between the fourth amendment and state law—the Fourth Amendment does not prohibit warrantless arrests for minor criminal offenses, and thus does not require case-by-case determinations of reasonableness for misdemeanor arrests; to determine if a warrantless arrest is reasonable need 1) PC to believe crime occurred, 2) arrest not made in manner unusually harmful to privacy interests.Atwater was pulled over and her children were riding in the front seat without a seat belt. The officer had previously pulled her over for this violation before. The officer then arrested the woman and booked her, though she was released shortly thereafter. The woman then sued for damages asserting that she had been unreasonably arrested. Trial court and appellate court rule for summary judgment in favor of the city (police officer).

The court finds that the fourth amendment does not extend to restrict arrests for violation of relatively minor crimes, and thus does not require a balancing of interests test. The court first embarks on an assessment of the history of arrests for misdemeanors in order to infer whether warrantless arrest for a misdemeanor would have been considered unreasonable; the court finds the assessment inconclusive—the court specifically points to English statutes that permitted peace officers to make arrests for relatively minor non-violent offenses. Court argues further that actual practice around the time of the constitution authorized local officers to make warrantless misdemeanor arrests. The court next finds that it will not create a new rule declaring warrantless misdemeanor arrests incongruent with the fourth amendment. The court argues such a rule would require sensitive case-by-case determinations of government need, and that the court has previously rejected compelling such determinations—determining the severity of the crime (and thus whether it is a felony or misdemeanor) may vary based on factual determinations that are not easily decipherable. The court argues further that the arrestee’s rights are already protected by a right to magistrate review of the arrest within 48 hours. In the specific case, the arrest was reasonable because the officer had PC to believe Atwater had committed a crime and the arrest was not made in a manner unusually harmful to privacy interests.

Dissent argues that in the absence of a clear common-law rule related to misdemeanor arrests, the court should balance the interests at stake. The dissent argues that the individual’s personal liberty interests

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are particularly high given that arrests are violent and the arrestee may be detained for up to 48 hours. Given this interest dissent would restrict ability to arrest for fine-only offenses unless the officer is able to point to specific and articulable facts that reasonably warrant an arrest—in other words, the interests of the city are viewed in context—the dissent considers not general police needs, but needs to meet any threats in the given situation. Concern in dissent reflects concerns over search-incident-to-arrest; if they can arrest for a misdemeanor crime, police may start arresting for these crimes so that they can search—this leads to concern over profiling

S Ct hesitant to say that offense is trivial (because kids can die when ride in front seat and are not buckled in

Majority’s opinion demonstrates ascendancy of originalism in Fourth Amendment lawo Criticisms of orginalism in Fourth Amendment context

18th century rules were unequal and codified class privilege Dramatic improvements in technology may make analysis of what government

does with information very important but 18th century technology was so different that original intent is not applicable to these emerging practices

Critique’s of majority’s finding that a more ambiguous law would be unadministrableo Police are forced to make quick decisions without knowledge of all the facts, o BUT police receive fairly detailed legal training and are frequently in court

Dissent’s more vague standard wouldn’t necessarily insulate against profiling Arrest power may apply in some circumstances even without PC to believe crime has been

committedo United States v. Awadallah – upheld material witness detentions (detentions to secure

testimony when it is thought that testimony could not be secured with a subpoena) Permitted only as long as are not unreasonably prolonged

Police can arrest for minor crimes and for fine-only offenses—calls into question whether are any real limits on arrest power

Arrest Present Requirements (Still qualified by other exceptions—particularly exigency) In Public

o PC sufficient for custodial arrest For an arrest without a warrant, must bring before a magistrate for a post-arrest

review of PC within 48 hours Remedies: 1) try to obtain release, 2) try to get evidence excluded—most

show a causal connection between illegal detention and evidence (e.g. a confession that wouldn’t have gotten absent illegal detention)

Example – Watson, Atwater In-Premises (on private property)

o Example – Payton, Steagaldo Arrestee’s Home

Need arrest warrant, but not search warrant – reflects view that it is reasonable to think that the individual is likely to be at their house; privacy interests still protected because have magistrate review of warrant

o 3rd Party’s Home Need Search Warrant (because 3rd party is not protected by arrest warrant)

Remedies – o possibly none for person arrested because probably doesn’t

have standing to challenge arresto Exclusion rule for owner of house

As a result, police don’t arrest in 3rd party’s home because can just wait until arrestee leaves house and arrest without paperwork

Search Incident to Arrest Police have some authority to search the place where the arrest is made

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Evolution of doctrineo Weeks v. United States – asserted that the right to search the person of the arrested was

always recognized in CLo Agnello v. United States – Search incident permits search of the place where the arrest is

made in order to find and seize things connected with the crime and weapons that might be used to escape from custody

o Marron v. United States – search-incident authority extends to all parts of premises used for unlawful purpose

o Cutting back the scope of the search incident doctrine – a few cases then cut back the scope of the search incident doctrine because there was ample time to get a warrant

o Court then returned to broad authority

Chimel v. California – Limits search incident to arrest to the arrestee’s person and the area from within which he might obtain a weapon or destroy evidencePolice went to D’s home with a warrant for his arrest. When D arrived at the home, the officers arrested D and searched his home, without his consent. The court considers whether a warrantless search of D’s entire house can be justified as incident to an arrest.

Court holds that the broad expansion of the search incident doctrine cannot withstand scrutiny, and thus should be constrained to permit only search of the area from which the arrestee might obtain a weapon or seek to destroy evidence. The court argues that the broad search is not justified by the original rationale for the 4th amendment—the original intent of the 4th amendment was to protect privacy from abuses by the majority. The court recognizes that the main justification for the search incident doctrine is that an arrestee may obtain a weapon and use it against the officers; the court reaffirms that this justifies search incident to arrest in the room in which a an individual is arrested, but does not extend to the entire house. Court argues that there is no reasonable distinction that would justify searching an arrestee’s entire house if they are arrested in the house, as opposed to arrested anywhere else.

Dissent argues that the standard by which 4 th amendment searches are measured is not against whether or not that are conducted pursuant to a warrant, but rather whether they are reasonable. The court argues that when the police are already legally in a place (house), it is not reasonable to require that the police leave the place to go get a warrant, especially when co-conspirators may destroy evidence. The court then applies this set of factors and argues that there was an exigency created by the possibility that the arrestee’s wife would hide or destroy evidence. Dissent’s argument amounts to a balancing of interests in which the privacy interest is low because police are already legally in the place, and police interest is high because of potential evidence destruction.

Arguments supporting SIA:o The psychological reactions to arrest are such that suspect likely to panic and assault

cop or destroy evidence Disarm suspect Find evidence suspect might try to destroy

o Inventory argument – the police are going to inventory items anyway to protect interests of the arrested, so should be allowed to search them

Robinson – considered question of whether search was reasonable if were arresting for a crime which you were unlikely to find evidence

o SIA is not limited by the scope of the PCo In searches of arrestee’s body – per se reasonable to search

Maryland v. Buie – when police arresting inside a house, can conduct an SIA to the extent necessary to ensure safety of police (to ensure no one is hiding in a closet and waiting to attack

Belton – in arrests related to automobiles – search extends to the entire passenger compartment, regardless of whether evidence of offense for which arrested is likely to be found in car

o Gives police authority to search vehicle for traffic infractions

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As a result, police had an incentive (and were) arresting people for traffic infractions so that they could search them

Thornton v. United States – largely overruled by Ganto Belton applies even when arrestee has already left vehicleo Provided an indication that the court was ready to overrule Belton

Scalia – if no grounds to believe evidence is in the car, then no justification for the search (in case, goes along with majority because believed had PC for search)

Knowles – SIA is triggered by full-blown custodial arrest, but just by citationo Arguments for SIA are not there—psychological impact and inventory aren’t present

when officers merely issue citations

Arizona v. Gant – SIA of a vehicle limited to when 1) area within wingspan of arrestee from which might obtain a weapon, 2) evidence reasonable to believe vehicle contains evidence of arrest.Police received an anonymous tip that drugs were being sold from a house. They went to the house and met Gant who told them that the owner of the house was not home. They locked at Gant in their police database and found that he had a suspended license. Later they went back to the house and arrested the owner. When Gant drove up they arrested him (saw him driving on suspended license). While he was in the patrol car the police searched his car and discovered a bag of cocaine. The lower court found that the search was unreasonable based on the Scalia language in Thorton—there was no reason to believe that there was evidence related to Gant driving with a suspended license in the vehicle.

The court holds that an SIA of a vehicle is reasonable only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. The court argues that an expansive reading of Belton in which the entire passenger compartment is subject to search is inconsistent with the ruling in Belton which said that it was consistent with Chimel (wingspan limitation). The court rejects the argument that vehicle searches are reasonable regardless of whether have reason to believe will uncover evidence of the arrest. The court argues that the privacy interests are higher, particularly given that Belton authorizes officers to search closed containers. The court argues further that police interests are law because the individual is already detained. Court argues further that a broad reading of Belton is not necessary to protect law enforcement safety or evidentiary concerns since it applies when an individual has already been arrested.Concurrence (Scalia) argues that in interpreting 4th amendment, should first look to history, and if history is inconclusive, then should balance the relative interests. Concurrence argues that in terms of interests, the police always have a less invasive way of neutralizing concerns because they can arrest the person (wants to eliminate the charade of police safety as the justification). Concurrence argues further that he would not permit SIA within reaching area because it leaves ambiguity, because other remedies (arrest) is available, and because it creates a bizarre incentive for police not to secure arrestees so can search their vehicles.

Dissent makes a whole bunch of arguments. Dissent argues that Belton has already been relied on by the police. Dissent argues further that no changed circumstances warrant changing Belton. Also argue that the Belton rule has not proven unworkable and has not been undermined by later cases. Dissent argues further that Chimel is meant to be applied as of the time of arrest, not of the time of the search because otherwise the rule would never apply (because as of the search, exigency rarely, if ever, exists.

Criteria 2 – “reasonable to believe vehicle contains evidence of arrest” involves something less than probable cause

o Court does not say that it is “reasonable suspicion” – provides some justification for thinking that is not the right standard either

o Probably not limited to the passenger compartment, as it was in Belton Gant raises the question of how Gant impacts the authority to search within the home

o Sweep authority – Gant does not address the authority to sweep the home to ensure police safety as discussed in Buie – this authority probably is unchanged

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o In home – If Gant logic transfers to the home –

officers are no longer limited to grab space, but can now look anywhere in the home if it is reasonable to believe they will find evidence of the offense of arrest (which will almost always be the case in the home)

Area can search on grab space limited to real grab space (not grab space charade from before)

Why we would think it would applyo Scalia pushing for reasonableness as basis for searches, rather

than warrant requirement – search history, balance interests Searching arguably reasonable because officers are

already in the house Why wouldn’t apply

o Heightened expectations of privacy in the homeo Lack exigencies inherent to cars that constrain getting warrant

Virginia v. Moore – SIA for arrests that are not authorized under the laws of the state do not violate the 4th amendment.Officers determined Moore was driving on a suspended license and arrested him for the offense. While they were arresting him, they searched him and found cocaine. However, under state laws, the officers should have issued Moore a summons instead of arresting him.

Court finds that evidence should not be excluded as a violation of the 4th amendment when the arrest was not justified under state law. The court applies the Scalia method—the court first considers the constitutional history, and then proceeds to balance the relative interests. The court argues that history does not provide a conclusive answer, but suggests that history does not indicate that the 4th amendment was intended to apply to state law (reinforce state law/be limited to state law). Accordingly, the court considers standards of reasonableness. The court argues that reasonableness has never depended on interpretation of state law. The court then considers the relative interests of the parties. The court argues that the arrestee’s interests are low because there are already standards in place to protect an individual from arrest. The court proceeds to argue that limiting constitutional arrests to those authorized by the state would create a strange incentive discouraging states to impose greater restrictions on arrest authority because it would make all information obtained incident to those arrests excludable. The court argues further that tying constitutionality to state law would create varying constitutional 4th amendment standards, depending on the jurisdiction. Once the court determined that the arrest was not unconstitutional, the SIA was reasonable based on concerns for officer safety.

Arrest (seizure) is reasonable under 4th amendment as long police have PC to believe are guilty of a crime

SIA Present Requirements Must arrest suspect With respect to person

o Can search arrestee’s body (United States v. Robinson) With respect to premises where arrestee found; consider:

o Can search area from which might obtain a weapon (wingspan—Chimel, Gant)o Can search area to secure from dangerous personso Can search vehicle if reasonable to believe will discover evidence of offense of arresto Consider

Intensity Geographic scope Rationale

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Plain View Search of Computers Issues have arises around searchability of computers—issues arise when police have a warrant

to search a computer for one thing, but discover evidence of some other crimeo State argument – must be able to look in every file because it is possible that a file will be

hidden/misnamedo 4th circuit – electronic files are like paper files; a warrant for a computer is like a warrant

for a file cabinet—you can look at anythingo 9th circuit – electronic files are distinct from paper files because it is possible to limit the

scope of the search for electronic files—as a result must do that

Reasonableness Context

o The exceptions above demonstrate the court is in the process of questioning its loyalty to the warrant requirement

Terry reiterates the preference for warrants, but simultaneously prescribes another exception to the requirement

Implies that a warrant is necessary even where noto Terry is tried in the context of a police stop—a warrant cannot be the requirement for a

police stop because it would not be possible to obtain a warrant for a police stopo Terry occurring in the midst of the civil rights movement – real concern about policing

using stops as a means of harassment Vagrancy statutes were permitting police to stop almost anyone with almost any

(or no) justification Police are frisking people in the community; it is invasive—how should the 4th

amendment limit the power?o At the other end of the spectrum, there are substantial community interests in proactive

policing Terry enabled proactive community policing

Potential means for protecting privacy:o Absolute protection – things free from official inspectiono Warrant + Probable Causeo Reasonableness – privacy protection rooted in requirement that searches and seizures

be reasonable Does not necessarily mean that the court will apply less stringent restrictions on

searches – example – even if one had PC to believe someone had been involved in a crime, a bullet could not be fished out of that person because such a search would not be reasonable

Concerns Commentators nevertheless worry that a reasonableness standard will

lower privacy protections because courts will defer to lower courts who will defer to the police

Concern that a totality of the circumstances test provides too little guidance to the police on what can do

o Counter – standard of reasonableness requires interplay between officers actions and judicial decisions

Because reasonableness requires a balancing test, courts will be forced to give a convincing explanation for inevitable choices, but the court lacks the tools to give such an explanation

Use of reasonableness in assessing 4th amendment events has increased in recent yearso Camara – 4th amendment reasonableness requirement applies to health and fire safety

inspection searcheso See – 4th amendment reasonableness requirement applies to commercial warehouse

inspection

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In expanding the application of the reasonableness standard, the court redefined probable cause in terms of reasonableness, by doing so the court introduced reasonableness as a basis for assessing constitutionality of 4th amendment events on its own

o Instead of PC defining reasonableness, balancing test came to define reasonableness Before Terry, there was real doubt as to how the court would rule; possibilities:

o PC is required for a stop (effectively limits policing to reactive)o Nothing required for a stop – a stop is just a conversation (not a 4th amendment event)

Stop-and-Frisk Authority Terry establishes a new distinction between what does and does not constitute a 4th amendment

evento An arrest and an SIA are 4th amendment events

A stopand-frisk is not a fourth amendment event The court in Terry finds that the distinction is not based on a frisk being

less intrusive – it is very intrusive Rather, justification is that a warrant would not work as the standard in

this context; PC would not work in this context, because by definition the officer does not have PC, but rather needs to be able to conduct a search in order to obtain PC

Searches under consideration in Terry were already being conducted by law enforcement – thus the review by the court serves to restrict these searches and bring them under review of the courts

o Court did this by holding the searches to a reasonableness requirement – involves a balancing of the interests of law enforcement and the privacy interests of individuals

The court is moving in this direction for all seraches

Terry v. Ohio – An officer has the authority to stop and frisk an individual when the officer can point to specific articulable facts that warrant a man of reasonable caution in the belief that a stop was appropriate and that that the officer was dealing with an armed and dangerous individual or officer would be warranted in belief that his safety or that of others is in danger, even if the officer did not have probable cause for an arrest.An officer with 30 years of experience was patrolling his regular beat. He noticed two men who were taking turns walking down the street and peering into one particular store window. The officer suspected that the men were casing the place for an armed robbery. The officer followed the men and confronted them. He seized the men and frisked them; he discovered that Terry had a gun. The state concedes that the officer did not have PC for an arrest. Terry moved to exclude the evidence on the basis that it was discovered during an illegal search.

The court finds that officers have the authority to stop and frisk an individual where specific facts justify the action and the officer has reason to believe he is dealing with an armed or dangerous individual. The court first finds that the stop and search is subject to fourth amendment review—the court argues that the procedure is invasive and literally involves a search of an individual’s person. The court finds that in order to justify a stop and search an officer must have “specific and articulable facts” which, when combined with the inferences to be drawn from the facts, warrant the intrusion; this standard requires that at the moment of the search and seizure the circumstances would warrant a man of reasonable caution in the belief that the action taken was appropriate. The court argues that this authority is justified by the societal interest in effective crime prevention and detention. Pursuant to this authority, an officer also has the authority to frisk an individual for weapons when based on those specific acts the action is reasonable (reason to believe dealing with a dangerous individual). The court argues that the officers need this authority to protect their safety, and that the officers have to engage in this activity. Officers have to engage in this activity because of the safety concerns, because the exclusionary rule is the only way that the rule could be enforced and the power of the exclusionary rule is limited, and because the stop and frisk is necessary to prevent crime. The court qualifies the holding such

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that the search must be limited to a search for weapons. Under the circumstances in the case, the court finds the stop and search reasonable and does not exclude the evidence.Concurrence (Harlan) – Fills in deficiencies in the opinion. The authority to frisk is derived from the authority to stop. In order to have RS to frisk someone, one must first have authority to stop someone (RS to frisk arises from having the additional RS that the individual may hurt officer).

Dissent argues that ruling effectively gives police more authority than even a magistrate (detached neutral observer) has because officers are allowed to engage in 4 th amendment events without even the PC that would be necessary in order to obtain a warrant.

After Terry, the stop-and-frisk requirement is that an officer must have Reasonable Suspicion (some quantum of specific facts that is less than PC)

Terry could have been limited to violent crimes, but thus far it has not been limited 4th amendment events after Terry

o Arrest – this is the full blown custodial arrest that involves taking an individual from the place where found and locking up until police decide to let you go

o SIAo Reasonableness line – the line between a stop and a full custodial arrest is not entirely

clear; the line is not force—a stop can be forceful Stop – a temporary seizure to investigate RS; can involve seizing an individual to

take them somewhere else Frisk

Officer engages in separate 4th amendment activities, but the court treats these as one entity Fundamental issue is whether police are to be given authority to engage in proactive, rather than

merely reactive policing – thought is that police shouldn’t have to wait for a crime to be committed to act, but should be able to prevent crime they reasonably believe may be under way

o Traditional Fourth Amendment approach (PC with review by magistrate) is ill suited to proactive policing efforts where getting a warrant would be a complete impossibility

Additional authority offered by Terry also is important in investigating “victimless” drug crimes where evidence will ordinarily be difficult to uncover

Risks of proactive policingo Heightened risk of discriminatory enforcement and inappropriate police involvement in

community lifeo Stop and frisk is responsible for a lot of the detention between law enforcement and

minority communities In spite of the concern related to race, Terry is one of the few Fourth Amendment

cases that specifically mentions race, and the court discusses it fleetingly (maybe suggests treatment in case was insufficient)

o Responsive to selection bias—people are more likely to give anonymous tips related to minorities (more likely to feel threatened by minorities)

Proactive policing/prevention has become particularly important for federal law enforcement since 9/11

After Terry, all searches must be reasonable, meaning of reasonable per an academic:o Intrusions must be proportionate to legitimate government purposeso Reasonableness must focus not just on privacy, but also on bodily integrity and personal

dignity Limitations on Terry Stop

o Terry stop does not permit full custodial arrest (Dunaway v. New York)o Terry is not limited to potentially dangerous activityo Terry stop does not permit activity that is more intrusive than is necessary for a police

officer to ensure own securityo Terry does extend to seizure of property in some circumstances – but it is limited to

detaining luggage briefly to investigate suspicion Can’t seize luggage and wait for sniff dogs to show up

The line between Terry Stops, and more substantial seizures is not immediately clear

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o There is no rigid time limitation on Terry stops United States v. Sharpe – found that it was a Terry stop when an officer detained

a suspect for 20 minutes while waiting for backup and then discovered evidenceo Court has generally been more willing to adopt bright-line rules for Terry stops when

justified by officer safety A Terry stop can involve an officer demanding a driver get out of a car (because

diminishes danger that driver will make unobserved movements and shoot officer)

A Terry stop can involve ordering a passenger out of a car (same justification as above)

Officers can search a vehicle for weapons as part of a Terry Stop (when see weapons from outside) – maybe cannot conduct a full search

The justification for this broadening scope is that where safety is concerned, it is not realistic to think that an officer will not make this intrusion (will not search the individual or the vehicle or order someone out of a car) because it is necessary for their safety and—thus the courts should not make the officer’s conduct illegal because it will have no positive effect other than to get officers to break the law more often

o Court has been very unwilling to allow elaborations on stop-and-frisk in the absence of officer safety

If an officer feels something during a frisk that he believes is contraband, the officer cannot seize that thing

Perhaps in response, officers have merely learned to say that they thought they felt a weapon

Reasonable suspicion has come to define the legal standard applied to Terry stops – RS is a “consider-all-the-circumstance” inquiry

o RS is less demanding standard than PC in that RS can be established with information that is different in quality, but also with information that is less reliable that necessary to show PC

o RS is a quantum of factual evidence criteria (not just a hunch)

Alabama v. White – An anonymous tip that someone is committing a crime can amount to RS if it provides evidence on future activity that police can verify to supplement veracity and basis of knowledgePolice receive an anonymous tip that an individual would leave a particular building, at a specific time, get into a specific car, and drive to a specific place.

The anonymous top was sufficient because it provided predictive information that police could verify to justify the assumption that the individual was in cahoots with the suspected criminal

Fourth amendment analysis; once woman starts driving towards destination police can:o Stop the woman based on RS that she is committing an offense (has drugs)o Police can order woman out of the caro Can order any passengers out of the caro Police can frisk the woman and passenger if they have reasonable suspicion to believe

that they are dangerous May have RS of danger based solely on the nature of the crime—RS suspicion of

distributing drugs warrants RS of danger because there is a high correlating between drug trafficking and carrying guns (unclear what amount of rugs warrants RS of danger)

The frisk would be limited to a search for weapons that can be used to hurt the officers—only weapons that are accessible (can’t search underwear)

Can pat down clothingo Can require someone to pull out anything that feel that gives PC

to believe the individual has drugs or a weapono Officer cannot tactically manipulate the object (particularly for

drugs), but can resolve suspicion on weapons Can pat down grab space in vehicle

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Can pat down personal effects (purse)—have the authority to search in order to resolve suspicion—if can’t resolve suspicion by touching, can pour out contents of bag

Pre-Gant in this context, the police would have just waited for woman to violate a traffic law and then would have arrested her for the violation and obtained a full scale SIA

Florida v. JL – An anonymous tip that someone is carrying a gun does not amount to RS.The police received an anonymous tip that a young black man standing a particular bus stop was carrying a gun. The tip described the shirt that the young man would be wearing. The police arrived, frisked the kid, and found a gun.

The court finds that the officers did not have RS. The court distinguishes this case from the situation in White where the tip described more details and contained predictive elements. In this case, the tip provided no predictive information, and therefore presented the police with no means by which to test the informant’s knowledge or credibility. Therefore, it is not possible to corroborate the information in order to supplement veracity and basis of knowledge of the tip because the information does not warrant the inference that the tipster was in cahoots with the individual targeted. The court refuses to adopt a firearm exception to the RS standard (which would permit to search on an anonymous tip when the tip involved a firearm), but the court specifies that it is not ruling on whether one would have RS on a bomb tip.

Court reaffirms that RS does not refer to a fixed quantum of evidence, but rather is context-dependent assessment of reasonableness based on a quantum of facts

o Some argue that one problem with this approach is that courts cannot give persuasive arguments of how they have balanced the various interests in the outcome

The court’s justification for opinion is concern for harassment—that people will use this in order to get back at other people

o This concern may be unjustified—the average person isn’t going to break the law by filing a false report

o The only people who we really worry about doing this are people who are already criminals—these people probably have the best access to tips based on real evidence!

The RS standard is amorphous, and in some instances may be based on largely innocuous details

o Police likely to be better at identifying suspect activity than they are at articulating what about the activity makes them think that it is criminal

o Real concern likely that police will invent anonymous tips in order to justify a stop-and-search based on a hunch

Illinois v. Wardlow – Unprovoked flights warrants RS; determination of RS is based on commonsense judgments and inferences about human behaviorOfficers were driving as the last car in a caravan in a neighborhood that they entered in order to conduct some sort of drug interdiction. When the officers passed Wardlow, he was holding an opaque bag and he sprinted off in the opposite direction. The police pursued him, made a Terry stop, searched his bag, and discovered a handgun. Wardlow moved to suppress on the grounds that police did not have RS for the stop.

The court finds that the officers had reasonable suspicion on the basis of the factors present by the facts. The court invokes the standard for determining RS and reaffirms that RS requires articulable facts and must be based on more than a hunch of criminal activity. The court argues that presence in an area of expected drug activity alone is not enough to justify RS, but it is a factor that can be considered. The court argues further that nervous behavior (e.g. flight) is another factor that can be considered. The court also argues that Terry recognized the risk that officers may stop innocent individuals.

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The dissent argues that the question involved in the case is the degree of suspicion that attaches to a person’s flight, and whether that degree of suspicion warrants an inference of reasonable suspicion. The dissent argues that it does not because there are numerous legal justifications that would explain an individual’s sudden impulse to run. First, an individual’s decision to start running may have nothing to do with the police—a person may decide to take a jog or suddenly need to use the bathroom. Moreover, even a decision to run from the police does not warrant reasonable suspicion given that in many neighborhoods police have a reputation for being dangerous and frightening to minorities, and many people may assume from police presence that crime is afoot.

Wardlow establishes that unprovoked flight warrants RS—however the court does not clarify what counts as unprovoked flight

o After Wardlow, police who want to investigate may just drive up on a person with sirens blaring and use stop-and-frisk if that person runs

Though at this point, this may be provoked flight (court has not yet ruled on issue)

Flight does not provoke RS of any particular crime, just RS of crimeo In most crimes where assess RS or PC, require that it be of a particular crime

Court accept as evidence the fact that the arrest occurred in a high-crime area—raises the question of how high-crime areas should be defined or identified

o Usually rely on officers testimony about the neighborhood’s reputation Some argue that such conclusory statements should not carry much weight

Those who live in high crime areas are most likely to be poor and members of minority groups—these are the same people who are most likely to be skeptical of police intrusion (most likely to run from police)

o Thus maybe doesn’t make sense to allow unprovoked flight as evidence of RS (additional indication that unprovoked flight in context of a bad neighborhood does not necessarily warrant supposition of criminal activity)

Police Discretion and ProfilingQ: What role does the 4th amendment reasonableness requirement have in preventing racial discrimination (purposeful or subconscious) in enforcing the law?A: The 4th amendment has almost no role in preventing racial discrimination in law enforcement; police have almost complete discretion in how and to whom they apply the law (discretion in enforcement). Nevertheless, the Constitution does require that laws not be so vague that police have full blow discretion to determine if the law has been broken (if they have the PC necessary to engage in enforcement activities).

Among central questions presented in the 4th amendment context is how strictly police discretion should be regulated

One way police use discretionary power is the use of profiles—assumption that certain characteristics do or do not correlate with certain types of criminal activity

o US v. Sokolow – DEA agents using a profile of a drug courier stopped someone at the airport; the Supreme Court upheld the legality of the search

Supreme Court did not explicitly endorse use of profiles, but did not condemn use either; dissent was very against profiling

Structural issues contribute to racial profiling – communities are still segregated What is racial profiling?

o Policy rely on racial disparities to target crime Communities are still segregated – police use this information to target crime; if

police want to arrest drug buyers, they will target white kids in black neighborhoods)

The other consideration implicated by profiling is the growing link between race and poverty (Blacks and Hispanics, in particular)

o Racial profiling is not the use of race to identify a suspect (know crime was committed by young white male)

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o Profiling is the association of race with criminality in order to identify suspects or conduct investigation

Reasons police use profiling – politically cheapo Those in poorer neighborhoods vote lesso Easier to get convictions in poor neighborhoods (don’t have same $ to contest

prosecutions)o It is cheaper to police when people are on the streets – wealthier can pay for more land

and bigger houses which equates to broader expectations of privacy—police cannot enter without a warrant

Academic debate on whether racial profiling is bado When a minority is targeted for questioning based in part on ancestry, he is taxed more

heavily than others, but the question is whether that tax is illegitimateo The incarceration rate for blacks is many times higher than it is for whites, and it does not

correlate to differences in crime rates among the racial groups Drug use is fairly consistent across races

o Defense People of other races are not in a position to pay the tax effectively Race is not being used invidiously, it is being used as a marker, but merely as a

signaling tool to pursue an unobjectionable end (like whiteness is used in affirmative action context)

Interesting argument because of claims by many whites that in affirmative action context they are innocent victims of discrimination

o Alternative to race-sensitive policing – spend more on law enforcement to make up for any diminution in crime control by prohibiting use of race as a proxy for increased criminality—redistribute the tax onto all

Law should only permit use of race in investigation when have an urgently compelling need—an emergency situation where a crime has been or is about to be committed

Racial profiling post 9/11o Before 9/11 the country had just reached a consensus view that racial profiling was bad,

but now that it arises in the terrorism context, many people are in favor of ito While most still claim they are against it, we have shifted what we mean by profiling allow

for profiling in certain contexts or senses – raises question of what is racial profiling? Not racial profiling for an officer to question, stop, search, arrest, or otherwise

investigate a person because of his race or ethnicity based on information about a perpetrator of a specific crime (knowing is a young white male)

However, concept of a specific crime is hazy when dealing with ongoing conspiracies (like terrorism plots)

Police can do a lot on the basis of racial or ethnic information – at the very least, police and chose to pay more attention to individuals based on race—this may result in more stops, but does not constitute profiling

Definition of profiling may depend on how the suspect is treated Does officer impinge on suspect by confronting him or invading his

privacy?o If the officer does impinge on suspect, may imply a greater

intrusion on privacy interests and maybe we are less inclined to permit such an intrusion (maybe the intrusion is impermissible profiling)

Is the subject treated like an outsider when encountered?o If the subject is treated like one of “them” than the investigation

essentially criminalizes him—this can be very insulting, and is hard to recover from; this is certainly profiling and we may be hesitant to impose a tax this great

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Overall, investigative choices made on assumptions of criminal activity are stigmatizing, so should be treated cautiously – it may be misleading go law enforcement and is certainly humiliating to the targeted group

Federal Guidelines on use of Race in Law Enforcemento Traditional Law Enforcement activities

In making routine or spontaneous law enforcement decisions – federal law enforcement officers cannot use race or ethnicity to any degree except in specific suspect description

In conducting activities in connection with a specific investigation – can use race and ethnicity to extent there is trustworthy information that links a person of a particular ethnicity to a criminal incident

o National Security and Border Integrity In investigation threats to national security—cannot consider race or ethnicity

except to the extent permitted by the Constitution and US laws

Whren v. United States – The 4th amendment reasonableness requirement does not require police to have anything more than PC in order to conduct 4th amendment search and seizure activities, even if that PC is used as a pretext to target racial minorities for statutory violations that all people commit. Police were driving in an unmarked police car and passed a dark truck with young, black, occupants. The truck remained stopped at the stop sign for an unusually long time, and the police did a u-turn to investigate further. Once the police U-turned, the truck turned right quickly without signaling and speed off at an unreasonable speed. The police then pursued the vehicle and pulled up beside it. An officer stepped out of the vehicle, approached the truck, and observed bags of drugs in the hands of one of the passengers. Defense moves to suppress the evidence on the basis that the traffic stop was a pretextual basis for investigating the men, mostly because they were black, and argues that a stop should require PC, plus that a police officer acting reasonably would have made the stop for the reason given.The standard suggested by the defendants would likely requiring a showing that department policies on when an officer can act permitted the stop that occurred.

The court finds that nothing beyond PC is necessary to conduct a stop. The court acknowledges that in previous cases it has used the exclusionary rule to prevent the use of pretextual bases for a stop, but only in the absence of probable cause. The court argues that the standard suggested by the defense is based on subjective considerations and would vary from place to place, and would be cause for undesirably unruly and expansive litigation. The court argues further that the fourth amendment does not provide a constitutional basis for objectioning to discriminatory use of race, but rather such a challenge should be made under equal protection law.

Litigation stepso The pull-over/stop was good because police had PC to believe that suspects had

driven at an unreasonable speedo Drug seizure is OK based on the plain view doctrine

Case raises the issue of what the proper relationship is between the Fourth Amendment and the substantive criminal law

Fourth amendment incorporates state law (in some sense) by requiring PC; PC requires thato Based on information available at the time, there was a fair probabilityo That the suspect had engaged in a defined criminal behavior

Those criminal behavior are defined in/by state lawo Because fourth amendment law is based on a state-set standard and includes

minimal requirements, if everybody is breaking the law, the fourth amendment does no real work

Some would suggest that if the point of the 4th amendment is to ensure that police have a good reason to conduct a search or seizure, then the

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Amendment should place limits on a state’s ability to define innocuous conduct a crime

Opinion criticizes defendant’s argument on the ground that it would lead to fourth amendment standards that vary by location; however this is what the standard in place does

o Though the standards vary based on how they are established by the legislature, rather than by the police

Whren affirms that there is no pretext s&s doctrine in the fourth amendment—the legality of a search does not depend on why it was conducted

o Though there is some concern that this permits arbitrary enforcement, the court responds that this is an equal protection issue

o In order to make out an equal protection claim, a defendant would have to show that the police intentionally discriminated against him based on a protected characteristic (race); individual is unlikely ever to have the evidence necessary to prove this; options

Empirical evidence that the officer could have pulled over a whole bunch of whites, but instead waited for a Black person

Statistics are complicated because police have been shown to falsify race on records to prevent inquiry into conduct

Confession by officer Evidence of the practices of other officer in the jurisdiction

o The other issue with equal protection doctrine is what is the remedy under equal protection? Is it still exclusion?

As referred to earlier, it is generally understood that when police rely on race as part of a victim or suspect description, it does not implicate profiling issues

o Even so, there are limits to the extent to which the police can act based on race—not reasonable for police to interview all of a minority group in an area based on a witness description;

It is unclear to me if this raises 4th amendment issues Police discrimination in traffic stops has received a lot of attention, partially because research

has been conducted that empirically demonstrates prejudice in traffic stopso Even though no higher portion of Blacks than Whites speed, and there are many

more Whites on the road, Blacks are pulled over in much higher numbers Some academic suggestion that those concerned with racial profiling should not focus on

remedying the effects of profiling, but rather should focus on remedying race-related consequences of the drug war (high rate of incarceration of minorities)

Police Discretion and Substantive Criminal Law Explanation for exploration in this section

o Equality and liberty are fundamental values of our governmental systemo When we look at arrest and incarceration statistics, they show that minorities are being

disproportionately arrested and incarcerated despite to clear correlation between their arrest rates and differences in crime rates among different races

o These issues can be addressed through the substantive law and through procedural law Morales suggests a fix through substantive law Procedural Fix – Gant offers one potential procedural means for addressing

issue; there was concern that police were targeting minorities as a pretext for a car search, but without that authority, police may arrest fewer minorities

o Overall, 4th amendment offers no real means for addressing the issue One alternative to regulating police by panning pretexts is to limit the laws that give police their

discretionary authorityo This involves limiting the offenses that provide a large portion of the discretionary power

– loitering laws, curfews, anti-noise ordinances, anti-“cruising” ordinances, anti-gang laws, etc.

Public order offenses made a comeback in the 80s and 90s

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o One academic theory is that the public signals indicated by these public order offenses is that law-abiding people should stay off of the streets

o Thus, these public order offenses protect the streets for law-abiding people Some courts have passed identification statutes that require individuals to identify themselves

when told to by the police

Chicago v. Morales – Laws are void for vagueness if they are so vague that they fail to give notice of the prohibited activity or encourage arbitrary enforcement of the law.Chicago enacted legislation that prohibited criminal street gang members from loitering with one another or anyone else in a public place. In order to be arrested for violating this ordinance, an individual had to be loitering with a street gang member, be ordered to disperse by the police, and then disobey the officer’s order. A case is brought arguing that the law is void out of concerns that is too vague, and thus encourages arbitrary enforcement.

The court finds that the law is unconstitutionally vague. The court recognizes that vagueness may invalidate a statute for two reasons: 1) the statute may fail to provide notice that will enable ordinary people to understand the conduct that it prohibits, and 2) the law may authorize or even encourage arbitrary and discriminatory enforcement. In this case the court finds that the law is deficient for both reasons. The court finds first that the law raises notice issues—because the officer issues an order only after the prohibited conduct has occurred, the law does not provide the advanced notice necessary to a loiterer to determine if he is loitering; moreover, the dispersal requirement does not give notice of what an individual is required to do to disperse (where does individual have to go and for how long). The court also finds that the law leads to arbitrary enforcement issues—the court argues that avoiding void for vagueness requires that the legislature establishes minimum guidelines to govern law enforcement, and no such guidelines have been adopted here. O’Connor – Raises notice and arbitrary enforcement issues attached to the definition of “loitering.” Suggests that the issue with the statute could be resolved if the law specified that it prohibited remaining in one place with no apparent purpose “other than the intent to establish control over identifiable areas, intimidating others from entering, or to conceal illegal activities.” In other words, statute OK if restricted to prohibited gang activity.

The part about standing with gang members does not raise notice or enforcement concerns because gang members wear uniform equivalents because they want people to know that they are part of a gang because part of their purpose is to intimidate

Dissent argues that the law was adopted to address the city’s problem with street gangs. The dissent argues that the law was adopted at the behest of the community, and thus reflects the community’s decision to give this authority to the police in order to ensure that the neighborhoods are safer. By encouraging the adoption of the law, the community has effectively legitimized the reasonableness of the law because the community has willingly forfeited the liberty (willing to pay a tax) in question in order to achieve a societal end. Dissent argues further that the law is not actually vague.

The point of Scalia’s dissent is that the community wants this statute because it gives everyone a chance—all those approached have the chance to disburse and stay out of jail

At the same time that the community wants community members to stay out of jail, the community also wants the streets cleared up—they don’t want gang members on the corners intimidating them from going out

When the law is revised, it provides less flexibility for the cops, but may provide less flexibility for the community too—may be less of an opportunity for individuals to escape punishment merely for disbursing

o It should be easy (maybe no more difficult) for officers to find loitering with intent, so police will almost always have the PC necessary for an arrest

A void for vagueness challenge is a facial challenge; in order to succeed on a facial challenge, a party must establish that a rule is unconstitutionally vague in applications.

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Void for vagueness doctrine was designed to address the potential for arbitrary and discriminatory enforcement by police, and thus constitutes one strategy for dealing with problems like racial profiling

o Scope of void for vagueness doctrine is narrow; does not relate to Whren-like stops where police can employ clearly violated laws to decide who they stop

Some argue that the vagueness cases were decided against a background of institutionalized racism; these people argue that the sense of distrust of community-based policing and skepticism about police behavior do not map well to the contemporary scene in which members of the community have sometimes been in the forefront of the push for some of these vague laws

o Counter argument is that these laws are still predominately passed by white elected bodies and impose disproportional burdens on minorities

Special Needs Court has used an interest-balancing approach (similar to Terry) to uphold administrative

searches, regulatory searches, and other government actions involving special needso Whether search is allowed depends “on a balance between the public interest and the

individual’s right to personal security free from arbitrary interference by law officers.” New Jersey v. TLO – first case to refer to “special needs”

o Found that warrant and PC requirements were not well suited to a principal’s searching a student’s purse for drugs, but rather the legality of the search should depend on reasonableness

Griffin v. Wisconsin – Used special needs to justify probation officers searching probationers homes on reasonable grounds (less than PC) without a warrant

O’Connor v. Ortega – Used special needs to argue that an employer’s search of employees desk should by reasonable under all circumstances

Roadblocks Raise question of whether police can seize a group of drivers without any reason to believe that

any one driver or passenger is violating the law Delaware v. Prouse – court declined to permit suspicion-less stops of automobiles to check

license and registration; no special needs; balancing of interests is against that much police discretion

o Police randomly pulled a guy over and asked him for his license; during the stop the police saw Marijuana in plain view. The marijuana was excluded from evidence

o The court applied the reasonableness test and found that there were significant individual interests in being free from random police intrusions, but minimal significant police interests because police were unlikely to find anything

o In opinion, court suggested that the use of check points to randomly search might be appropriate

United States v. Martinez-Fuerte – court approved suspicion less checkpoints from the Mexican boarder based on a balancing of interests (need to make stops is great, intrusion is limited)

o These stops are 4th amendment events, but there is a substantial law enforcement interest

Michigan Dept of State Police v. Sitz – OK to have random drunk-driving checkpoints under balancing of interests

o Court balances interest – Police interests This was characterized as a non-criminal-investigation checkpoint State argued a special police interest in the need to deter drunk driving (CGI) The court also consider the nexus between the means used to pursue the ends

(deterring drunk driving)o Individual Interests

Checkpoint presents less intrusion than an ordinary stop Everyone is pulled over, so it is less humiliating The stop is very brief

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PROCESS If there is a roadblock

o Roadblocks are appropriate if the police have a special need. In order to determine if police have a special need, the courts balance interests of each party.

Police interests in ordinary investigation provides a de minimis interesto In order for a roadblock program to be constitutional, the police must have an

administrative program in place that regulates police discretion

Indianapolis v. Edmond – Ordinary crime prevention does not warrant roadblocks under the 4th amendment because a balancing of interests does not favor police interest.Indianapolis began to operate vehicle check points in an effort to interdict unlawful drugs. The hit rate was approximately 9 percent. As part of the interdiction a narcotics dog walks around the outside of each stopped vehicle. Checkpoints are set up so as to ensure that each check takes no more than five minutes, and warning signs are posted alerting drivers of checkpoints. Ps sued for declaratory relief.

Ordinary crime prevention does not justify warrantless seizures. The court weighs the interests at stake in determining if the checkpoint is reasonable. The court argues that while it has approved checkpoints previously, it has never done so in the context of ordinary crime prevention, but rather has approved checkpoints only in the context of special needs. The court finds that because the primary purpose of the Indianapolis checkpoint is ordinary crime prevention, the program contravenes the 4th amendment. The court expresses concern that permitting checkpoints for ordinary police purposes would give the police too much discretion to construct roadblocks for almost any conceivable purpose. The court finds next that the gravity of the crime alone is not dispositive on special needs, but rather is one factor that can be considered in the balancing of interests in a special needs situation. The court also rejects justification for the program on the grounds that it serves a secondary purpose of keeping impaired motorists off of the road (like Sitz) because permitting such a purpose would effectively permit all check points.

The dissent seems to apply the balancing of interests, and finds that it weighs distinctly in favor of permitting the searches. The dissent argues that the random drug interdictions yield positive results (finding drugs) in a much higher percentage of cases than either the Martinez-Fuerte or Sitz roadblocks, and thus the government has a clear substantial interest.Thomas – Martinez-Fuerte was wrongly decided; a program of indiscriminate stops is never reasonable.

State’s interest in stopping motorists a function of two considerations:o Importance of the violation police are detecting or deterringo Number of violations detected or deterredo These criteria cannot fully explain the extent of 4th amendment protection because it

would seem like they would justify giving police the authority to set up a road block in Edmond (drug interest as important as some of prior acceptable interests, and success rate was good)

Individual interest at stake in roadblockso State argument – stopping a lot of people is less of an intrusion than stopping a few;

stopping everybody may reduce the stigma and humiliation associated with a stop Rehnquist completely rejects this argument

One advantage of a roadblock program is that it affects all motorists, regardless of race, ethnicity, or socioeconomic class; this means that road blocks that become overly intrusive are likely to be regulated by the political process

o Argument for permitting roadblocks Police impose costs on suspects ( a tax) Costs are felt primarily by those who police target (minorities), but spreads

benefit to all This creates a taking problem – that police will impose too high a tax When police stop large groups of people, the tax is spread more evenly, and thus

reduces the odds that police will over-burden any population

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If it is, it can be regulated through the political process Thus, when police want to deal with crime wholesale, they should be allowed to

Illinois v. Lidster – Roadblocks can be used to investigate specific criminal events pursuant to the 4th amendment (at least as long as there is a strong connection between the way the roadblock is conducted and the crime)A 70-year-old bicyclist was struck and killed by a hit and run driver. In response, police set up a checkpoint the next week on the same road to ask motorists if they had any information on the hit-and-run, and to hand each one of them a flyer about the incident. D drove through the checkpoint erratically, and the officer smelled alcohol on his breath. D challenged the lawfulness of his arrest and moved to exclude the evidence on the grounds that it was the fruit of an unconstitutional search.

The court finds that the investigation of a specific crime warrants the use of a roadblock to investigate the crime. The court distinguishes the roadblock from that in Edmonds. The court argues that the police purpose was not to determine whether vehicle occupants were committing a crime, and thus was not for a “general interest in crime control.” The court proceeds to balance the relative interests of the parties. The court finds the motorists interests to be relatively minimal – one does not have a heightened expectation of privacy in a vehicle, information-seeking stops are less likely to provoke anxiety, individuals are normally expected to cooperate in public investigation of a crime, etc. Moreover, the court argues, checkpoints are unlikely to proliferate absent stricter enforcement because of the intense resource requirements necessary for a checkpoint. On the police side, the court finds the police interests to be quite substantial. The police were investigating a crime that resulted in a death, the police were examining on the road where the crime occurred (and so had an increased interest in investigating in the way that it did.

Dissent contests the application to the balancing of interests as applied in this case. The dissent argues that many people are likely to find an unpublicized roadblock alarming, and a random roadblock seems unlikely to yield important/useful police information.

Legal status of most roadblocks after Edmond and Lidster is uncertain, but Martinez-Fuerte style roadblocks are on stable ground (definitively constitutional)

o Edmonds/Sitz raises the possibility that one can conduct a roadblock for the purpose of doing a drug interdiction, but claim the purpose is something else, and thereby justify the roadblock

This may eliminate the use of the drug-sniffing dogs Though maybe not if drug dogs are allowed everyone their handlers are

allowed Courts have traditionally considered searches and seizures at international borders to be

reasonable and have required neither RS, and have established few constraints on officerso E.g. routine luggage inspections when travel through customs

United States v. Montoya de Hernandez – Customs officials had RS to believe defendant was smuggling contraband in her alimentary canal; police detained her for 16 hours to procure a warrant for a medical examination

o Court found that the seizure was constitutional arguing that 4th amendment balance of interests leans heavily in favor of the government at an international border

o Courts reaffirmed this interest in United States v. Flores-Montano when the court upheld a search of a vehicle in which officers removed and disassembled the gas tank of a smuggler’s vehicle

Court argued that a search of the gas tank was far less intrusive than a search of the glove box (which is sanctioned in border context)

Reasonableness and the Use of Force Unlike most S&S cases, use of force cases are litigated in damage suits, not in suppression

motion in criminal cases On police methods

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o If an officer has grounds to use deadly force to affect a stop, the officer can shoot to kill immediately (and is encouraged to in order to neutralize the threat)

o Law enforcement argues that they shoot in order to eliminate the threat Accordingly, the officers aim to cause a sudden massive drop in blood pressure

to achieve this aim As a result, officers aim for center mass Shooting in the head or an extremity is more likely to make suspect angry without

debilitatingo The rules are structured to favor law enforcemento Officers do not owe a duty to be careful because the suspect is creating the danger (logic

applied in Scott v. Harris)

STANDARDCase Criteria

Tennessee v. Garner

Standard after Garner; to use deadly force officers must have PC+o Officer has PC to arrest persono Deadly force is necessary to prevent an escapeo PC to believe suspect poses a significant threat of death or GBI

to the officer or others

Scott v. Harris

Standard for using deadly force to effect a seizureo Whether officer’s actions were objectively reasonable under the

circumstances (considering all the circumstances) In order to determine if the officer’s actions were

objectively reasonable, the court must balance the nature and the quality of the intrusion on the individual’s 4th amendment interests against the nature and the quality of the intrusion on the individual’s 4th amendment interests against the importance of the governmental interests

Tennessee v. Garner – Deadly force cannot be used unless it is necessary to prevent an escape and the officer has PC to believe that the suspect poses a significant threat of death or physical injury to the officer or others (criteria that construe reasonableness).Police officers responded to a call about a burglary. One officer went behind the house and saw someone slam the door and run outside. The officer told him to stop, but the suspect tried to climb over the fence. The officer was convinced that if he made it over the fence he would escape so the officer shot him in the head and killed him.

The court finds that the use of deadly force to prevent the escape of a felony suspect is constitutionally unreasonable, unless the officer has PC to believe that the suspect poses a threat of serious physical harm to the officer or to someone else. The court finds first that a seizure by deadly force is subject to the reasonableness requirement of the 4th amendment and requires not just that the seizure be reasonable, but that the means by which the seizure is achieved also be reasonable. Accordingly, the court finds that it is not always reasonable to attain a seizure by killing a suspect. The court considers the interests, and they obviously favor someone not ending up dead. In its finding, the court overturns the CL rule that deadly force was a justifiable means of preventing a fleeing felon from escaping; the court argues that this deviation is justified given the rule was formed before the advent of guns and when all felonies were punishable by death! The court argues further that the police interests in the use of deadly force are increasingly questionable because most police/investigative departments have seriously limited the authority of agents to use deadly force (so it must not be integral to enforcement activities).

Standard after Garner; to use deadly force officers must have PC+o Officer has PC to arrest person

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o Deadly force is necessary to prevent an escapeo PC to believe suspect poses a significant threat of death or GBI to the officer or others

Typically, the reasonableness and interest balancing approach means less 4th amendment protection, but Garner reverses that and uses the reasonable requirement to impose requirements on the use of force that are more stringent than the PC requirement

The reason that most cases involving reasonableness tilt in the government’s favor is because of the type of cases that arise under the reasonableness question – cases where PC standard seems too low are rare, and most cases brought tend to arise in areas where exclusionary rule is sought, so something was found, so the ordinary standard seems too high

Restrictions on police use of force seem generally to have been successful—police shootings have gone down, but this has not been linked to an adverse impact on crime levels

o Some suggest that in order for a program limiting shootings to be effective, it must be accompanied by an administrative program to examine all shootings (some method of in-house deterrence)

Graham v. Connor – All claims that law enforcement has used excessive force (deadly or not) in the course of an arrest, an investigatory stop, or other seizure, should be analyzed under the 4th amendment reasonableness standard.Police officer saw a man run into a convenience store, and run out quickly. The man was a diabetic and was suffering from a sugar deficiency. The police then pulled the man over and tried to explain the issue. The man then passed out on the curb. The police handcuffed the man and laid him down on the hood of the police car. He tried to explain the problem to the police, but the police assumed he was lying. His head was banged into the hood of the car. During the incident he suffered a broken foot, cuts on his wrist, and bruises on his forehead and shoulder. The lower court ruled for a directed verdict for the defendant, applying a set of criteria based on the due process clause.

The court overturned the directed verdict and held that all claims for an excessive use of force should be analyzed under a 4th amendment reasonableness criteria. The court finds that determining whether a particular seizure is reasonable requires a balancing of the interests—the intrusion on the individual’s Fourth Amendment interests against the countervailing government interests at stake; the court finds that this is an objective standard – whether the officer’s actions were objectively reasonable in light of the facts and circumstances. The court finds further that the reasonableness of a particular use of force must be judged from the officers perspective on the scene, not from hindsight. Accordingly, the court remands the case to be considered under the 4th amendment.

Graham squarely rejects using officers’ subjective intent as part of the 4th amendment analysis Court offers considerations that should be considered in the balancing of the interests:

o The severity of the crime at issueo Whether the suspect poses an immediate threat to safetyo Whether suspect is actively resisting arrest or attempting to evade arrest by flight

Some have criticized that the standard requires police to make complex, instantaneous decisionso Expert has countered that this approach encourages police to employ advance diagnosis,

planning, and training Idaho v. Horiuchi – Court found that officer’s shots at a fleeing felon were objectively reasonable

even though suspect did not pose an immediate danger to anyone

Scott v. Harris – In determining if a 4th amendment use of deadly force was reasonable, courts perform a balancing of the interests in which the courts balance the quality of the intrusion against the importance of the governmental interests that justify the intrusion (this inquiry is very fact-based). The police attempted to pull over a guy for speeding. The man resist arrest and instigated a high speed chase that occurred on narrow roads at over 85 miles/hour. In an effort to end the chase, an officer applied his push bumper to the rear of the suspects vehicle, and the suspect crashed and was rendered a quadriplegic. The lower courts denied the officer’s plea of qualified immunity, and the case is appealed to

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determine whether qualified immunity is justified (as it would be if the officer’s actions complied with the 4th amendment standards for effecting a seizure).

The court finds that the officers actions were objectively reasonable, and thus were constitutional. The court considers first whether the acts alleged show the officer’s conduct violated a constitutional right. The court argues that ordinarily such a circumstance would require interpreting the facts in the light most favorable to the non-appealing party, but this case provides video evidence of the chase, and thus the court assumes the facts to be those interpreted from the video which show the plaintiff driving dangerously. In light of the facts as the court interprets them from the video, the court finds that the officer’s actions did not violate the 4th amendment. The court argues that the proper test for determining whether the officer’s actions complied with the 4th amendment is whether the officer’s actions were objectively reasonable. In this argument the court argues that the standards articulated in Garner were not concrete standards for determining where the use of force was appropriate, were merely an application of the 4th amendment reasonableness test. The court finds further than in order to determine whether a seizure was objectively reasonable, the court must balance the nature and the quality of the intrusion on the individual’s 4th amendment interests against the importance of the governmental interest. In this context, the court considers the threat posed by the fleeing suspect’s actions, and also considers that the suspect chose to create the danger, and thus has less of an interest in being free form the intrusion. Thus the court finds the seizure reasonable.

The court seems to dismiss the strong interest on the suspect’s side—his interest is his interest in his life, but the court refuses to recognize it (probably because it is more focused on the threat he posed to other people’s lives)

The dissent suggests that the officers actions were not reasonable because if the police had abandoned the chase, the danger would have been averted, and the police probably could have caught the suspect later because they had his license plate number. Dissent also questions the facts asserted by the majority and argues that bystanders were not threatened, and questions what it interprets to be the establishment of a per se rule that terminating a high speed chase with deadly force is objectively reasonable.

Standard for using deadly force to effect a seizureo Whether officer’s actions were objectively reasonable under the circumstances

(considering all the circumstances – fact-bound inquiry)) In order to determine if the officer’s actions were objectively reasonable, the court

must balance the nature and the quality of the intrusion on the individual’s 4th amendment interests against the nature and the quality of the intrusion on the individual’s 4th amendment interests against the importance of the governmental interests

Lessons from Scotto Always litigate the contents of a film—films do not actually speak for themselveso There is some possibility that Garner is still good law and there is a distinction between

force applied to a person and force applied to a vehicle/something that will stop a person Unlike most S&S cases, use of force cases are litigated in damage suits, not in suppression

motion in criminal cases o Section 18=983 doctrine gives police qualified immunity from damages liability, unless

the officer violated a clearly established constitutional rule Means legal close calls go to the police, not the plaintiffs

o The court cannot rule on the qualified immunity issue before the constitutional issue (per Saucier v. Katz) and thus must rule on the constitutional issue before it determines that a constitutional standard was not clear enough to prevent qualified immunity

In order to for qualified immunity to be prevented by a violation of a clear constitutional standard under the 4th amendment, an individual must first be seized

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o Thus, qualified immunity not appropriate when police run over someone who falls off motorcycle during a chase because officers did not acquire physical control through means intentionally applied

Conversely, in Scott police did attain seizure through means intentionally applied, and thus had seized Scott

o Seems to imply that seizure turns on intent of the officer in performing actiono This seems to apply a subjective standard where most 4th amendment jurisprudence

applies an objective standard

Reasonableness and the Use of Consent Consent searches provide one of the biggest bases for searches

Schneckloth v. Bustamonte – The determination of whether a consent to search was “voluntary” is a question of fact to be determined from the totality of the evidence. The state bares the burden of proviving that consent was voluntarily given when the subject of the search is not in custody. While knowledge of the right to refuse consent is one factor to be considered in determining whether consent existed, the government does not have the burden of establishing knowledge in order to prove consent (it is not dispositive). A police officer stopped a car that was missing a headlight. The car was packed with six occupants. The officer asked the driver if he could search the car, and the police officer claims Alcala said yes. Another witness testified that Alcala did not say yes, but did assist in the search by opening the trunk. During the search the officer discovered several stolen checks. D moved to suppress the evidence on the basis that the officer did not have consent to search the car.

The court holds that determining consent is a question of fact to be determined from the totality of the evidence, but the government does not need to establish that a party was aware of his right to refuse consent in order claim that a search was voluntary; the court recognizes that consent cannot be coerced. The court argues that this rule is justified based on the strong personal and police interest in consent searches—consent searches are important to the police because they may provide the only means of obtaining reliable evidence when a warrant cannot be obtained, and because they enable the suspect to avoid the embarrassment and potential intrusion from a full warrant search. The court argues further that a rule requiring the state to prove a party knew he had the right to consent might eliminate consent searches. Specifically, warning citizens of their right to refuse is impractical because consent searches arise spontaneously, and the investigative context is not conducive to the same formalism appropriate for court rooms. The court argues further that the requirement of a knowing waiver by a suspect has only been applied in the trial context which by its nature is much more planned and deliberate; a knowing waiver requirement is also inconsistent with third party consent which permit police to search even when the actual suspect does not consent.

Dissent argues that at a minimum, the court should not admit consent when the subject of the search was unaware that he could refuse to give consent. Dissent argues further that the burden on proving an individual was aware of his right to refuse consent should be placed on the prosecution because the only proof a suspect could offer of his refusal to consent would be his claim, but circumstances surrounding a consent search might suggest to the officer that the suspect was aware of his right to refuse consent.

Both the majority and the dissent seem to think that warnings would have a large effect on suspect’s behavior

o Social science studies contradict this assumption—studies over the last several decades on the social psychology of compliance, social influence, and politeness suggest that the extent to which people feel free to refuse to consent is extremely limited given societal pressures

Court offers assurance that the voluntariness of consent is “carefully scrutinized” by trial courts

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o At least one study suggests this is not true—in one study found that in 6 years DC never found consent involuntary and in most cases did not discuss the subjective factors that the supreme court said would be relevant in determining voluntariness

o Some argue that if police are routinely given consent, they have little incentive to develop individualized probable cause

Why is a warrantless and suspicionless consent search consistent with the 4th amendment?o Because consent is an exception to the ordinary PC/warrant requiremento Constitutional rights can generally be waived, but waiver does not explain the 3rd party

consent doctrine whereby police can searched based on the consent of someone other than the suspect

o In Schneckloth the court treated 3rd party consent cases as issues of “assumption of risk”—D assumed the risk that police would be permitted to search areas to which D granted access to someone else

o However, assumption of risk does not explain Illinois v. Rodriguez where the court extended 3rd party consent doctrine to intrusions based on the consent of a third party whom the police “reasonably believed” to possess common authority over the premises

Scalia – Requirement for satisfying the 4th amendment is that an officer’s actions be reasonable. Requiring that the third party actually have access to the place the third party consented to being searched would impose a requirement that the officer’s actions not just be reasonable, but also correct; if an officer reasonably believes an individual has common authority over the premises, than the officer can reasonably search it

Dissent – Grounded in reasonable expectation of privacy (disagrees over whether consent search constitutes a “search”); A third party consent search is reasonable because by granting access to one’s premises limits one’s reasonable expectation of privacy over the premises. If an individual has not limited his expectation of privacy, the police cannot dispense with the ordinary 4th amendment requirements, and thus a warrant is required.

Florida v. Jimeno – 4th amendment is satisfied when it objectively reasonable for the officer to believe that the scope of the consent permitted him to open a particular container (within the automobile)

Ohio v. Robinette – 4th amendment does not require that an individual must be advised that he is “free to go” before his consent search will be recognized as voluntary; determining whether consent is voluntary is q question of fact to be determined from all of the circumstances, and whether an individual knew of his right to consent is not dispositiveD was pulled over for speeding. After issuing D a warning and returning his license, the officer asked D if he could search his car. D consented and the officer found a small amount of marijuana. P moves to exclude the evidence on the basis that he did not know that he was legally free to go.

The court holds that officers are not constitutionally obligated to inform individuals that they are free to go in order for a request for consent to search to be valid. The court applies the 4th amendment reasonableness requirement and finds that determining voluntariness is a question of fact to be determined from all the circumstances. The court argues that while knowledge of the right to refuse consent is one factor to be taken into account, it is not itself dispositive.

Robinette implicates the relationship between consent and a seizureo Bostick – a person is seized if a reasonable person in his circumstances would not feel

free to leaveo Schneckloth – a consensual search is voluntary under all circumstances

Robinette was decided the same term as Whren – suggest court is extremely reluctant to use the 4th amendment to address pretext in the enforcement of traffic violations

Implications of consent request – one survey suggests that a substantial portion of citizens whose consent was requested felt negatively affected by the police encounter

Consent in advance of a search

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o Henry Cisneros proposed as part of a program for combating violence in public housing that leases by accompanied by consent clauses giving police permission to inspect apartments for firearms (though searches would be limited to daytime, and to circumstances like PC – no more intrusive than necessary to determine whether weapons were present)

o Some question of whether these clauses would be considered valido In at least one instance these have been found to be valid – in California parolees must

agree in writing as a condition of release to permit warrantless and suspicionless searches

The court in these cases knows that these are not consensual encounters, however the court is inclined to recognize them because it thinks consent searches are good for everybody

o People are almost always found to consent because the courts have crafted a consent test that is very easy to fulfill

This test reflects the view that the courts think that consent searches are good The courts have distinguished the 4th amendment from the 5th and 6th

amendments— the 5th and 6th are enforced rigidly because they serve the value of

attaining accurate trial results, whereas the 4th serves as a shield to keep out reliable evidence of guilt

5th and 6th amendments arise in moments where they are easy to administer—in the context of a formal trial; 4th amendment moments arise in the field when they are logistically awkward to enforce and implicate many additional considerations

o There is some evidence that the voluntariness of consent is unimportant – everyone must be alerted of their Miranda rights and almost everyone waives Miranda rights

Third-Party Consent

However, assumption of risk does not explain Illinois v. Rodriguez where the court extended 3rd party consent doctrine to intrusions based on the consent of a third party whom the police “reasonably believed” to possess common authority over the premises

o Scalia – Requirement for satisfying the 4th amendment is that an officer’s actions be reasonable. Requiring that the third party actually have access to the place the third party consented to being searched would impose a requirement that the officer’s actions not just be reasonable, but also correct; if an officer reasonably believes an individual has common authority over the premises, than the officer can reasonably search it

o Dissent – Grounded in reasonable expectation of privacy (disagrees over whether consent search constitutes a “search”); A third party consent search is reasonable because by granting access to one’s premises limits one’s reasonable expectation of privacy over the premises. If an individual has not limited his expectation of privacy, the police cannot dispense with the ordinary 4th amendment requirements, and thus a warrant is required.

Dispute above comes to a head in following case—if consent is based on assumption of risk, then if someone gives consent for a search who lacked the authority to give that consent, the consent should be invalid; conversely if the rationale is reasonableness from the police officer’s perspective, the consent should be fine

Georgia v. Randolph – Whether consent is sufficient to grant police the authority to search a location depends on the reasonableness of the search involved—the analysis for determining if a search was reasonable involves an assessment of the facts of the cases and a social norms analysis—under the circumstances was it reasonable for an officer to believe that he had consent to searchD and his wife were involved in a domestic dispute. She called the police and when officers arrived at the house she told them that her husband was a cocaine user, and claimed that there was drug paraphernalia in the house. The woman then gave consent to search the house, but D prohibited the police from

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entering his house. The police entered the house anyway and obtained enough evidence to procure a warrant. D moves to exclude the evidence because the initial search was unreasonable.

The court finds that the search was unreasonable, and accordingly the evidence should be excluded. The court applies the reasonableness rationale to consent searches (requiring only that the officer reasonably believed he had consent) and argues that social expectations about the authority of co-inhabitants play a significant role in determining whether a search was reasonable. Thus, whether consent is valid will be highly dependent on the facts of the case and local social practices—thus a landlord/hotel manager could not consent to the search of a room, and most guests probably could not consent to searching through certain areas of another person’s house. On an application of the reasonableness/social expectations requirement the court finds that it was not reasonable for the officers to believe that they had consent to search because a house guest would not feel free to enter when one of the owners of the house was telling him that he could not enter. The court argues that this finding should not significantly impact police activity because informants can still provide police with information so that police can obtain a warrant and police authority to enter homes for community caretaking is unchallenged by the ruling (so it will not negatively impact domestic abuse victims). The court argues further that the reasonableness requirement implicates a fine line because in this case an individual would be protected if at the door objecting, but would not be protected if he was in the bedroom, and thus could not object.

Dissent voices concern that the ruling will have adverse effects on domestic abuse victims—the dissent interprets the rule to suggest that the abusing party will be able to keep out the police, even when the abuse victim is trying to permit the police to enter. The court argues that co-occupants have assumed the risk that someone they permit to enter might give the police access. The dissent rejects the social norms analysis, arguing that that it introduces uncertainty into the analysis and that widely shared social expectations are not a constant. The dissent also sites US v. White to suggest to suggest that the court has previously recognized an assumption of risk rationale, and argues that this rationale has also been extended to an analysis of objects and places. The dissent argues further than if an individual wants to protects items from discovery from a 3 rd party consent search, that individual can place the items out of access and control of the 3 rd party (e.g. in a locked cabinet). The court rejects that the owner’s interest is protected in the holding because the owner’s interest is only protected if he happens to be at the front door.

United States v. Matlock – D was arrested and detained in a squad car. While D was in the squad car, police obtained consent from his wife to search the house. Court upheld the search

o Case occurred before Georgia v. Randolpho Randolph raises question of whether there is any way to square Matlock with the case—

Randolph did not overrule Matlock One way to address the issues in Randolph would be to combine consent analysis with another

standard (e.g. reasonable suspicion)—consent is sufficient to give police the authority to search, but only if police have some RS to suspect criminal activity

Exclusionary Rule: Standing and Scope If no adverse consequences flow from the violation of a constitutional right, government officials

will violate the right as often as they wish and victims will not press their claims in court Before Mapp v. Ohio the 4th amendment was not enforced at all against local police—Mapp

changed this buy extending the exclusionary rule to cover state police (who did most of the searching and seizing)

o Since Mapp exclusion has been the primary remedy for 4th amendment violations

United States v. Leon – Determining whether the exclusionary rule is necessary involves a case-by-case determination; evidence should not be excluded when an officer acted in a manner that was objectively reasonable, as in when an officer acts in accordance with an apparently valid warrant that later turns out to be defective, but an officer has not acted reasonably if he knew or should have known that the

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magistrate was acting pursuant to an affidavit that contained false information, if he knew that the judge had all but abandoned his role, or where the warrant is so facially deficient that it was not reasonably for the officer to assume it was validA confidential informant alerted police that two individuals were selling large quantities of cocaine and meth. The police began an investigation to corroborate the tip. The police corroborated the tip and obtained a facially valid search warrant. Acting pursuit to the warrant the police searched the premises and found a large quantity of drugs. Ds seek to exclude the evidence obtained from the search on the grounds that the search warrant was deficient. The court considers whether it should modify the exclusionary rule so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.

The court holds that a search pursuit to a valid search warrant that later turns out to be defective is constitutional so long as it is conducted reasonably and in good-faith reliance on a search warrant. The court argues that the 4th amendment does not expressly require the exclusionary rule. The court argues further that there are substantial social costs associated with the exclusionary rule because it interferes with the police’s truth-finding function. The court argues also that the social costs are particularly high when the police have acted in good faith reliance on a search warrant because there are no deterrent effects on police conduct to counter-balance the negative social impact. The court finds further that suppression of evidence should be ordered only on a case-by-case basis in the unusual case in which the exclusion will further the purposes of the exclusionary rule. Thus, an officer’s reliance on a magistrates PC determination does not justify use of the exclusionary rule if the officer’s actions are objectively reasonable; the officer’s actions will not be objectively reasonable if the magistrate or judge issuing the warrant was misled by in information in an affidavit that the officer knew or should have known was false, where the officer knows that the judge has abandoned his judicial role, or where a warrant is so facially deficient that the officer cannot assume it is valid.

The dissent criticizes the majority’s ruling because it implies that the exclusionary rule is merely a judicially created remedy designed to protect 4 th amendment rights, rather than a constitutional right; the dissent thinks that use of the exclusionary rule has been incorporated into the 4 th amendment. The dissent argues that the admission of illegally obtained evidence implicates the same constitutional concerns as the initial seizure of such evidence and thus should be protected by the same mechanism. The dissent argues further that the social balance of interests are not nearly as strong as suggested because studies have shown that the costs of the exclusionary rule are low (exclusionary requests are rarely granted).

In Leon the court splits the right and the remedy—the 4th amendment protects rights, but the exclusionary rule is not part of that right

Deterrence argumento Excluding the evidence in these cases will not achieve any deterrence because the

officers are acting in good faitho The exclusionary rule is not targeted at magistrates, but at the police

Rule after Leon – If the police are relying in good faith on a warrant from a magistrate, evidence should not be excluded unless

o Belief that warrant was sufficient is not objectively reasonable A bare bones warrant is not sufficient Not sufficient when a warrant fails to specify the scope of the search Not sufficient when the magistrate is not neutral or detached Not sufficient if the affidavit contains falsehoods

The court’s ruling reflects the view that the exclusionary rule will not have any deterrent effect when an officer is acting objectively reasonably

o The exclusionary rule cannot have any affect on a magistrate because a magistrate is intended to be a neutral observer, and thus is not intended to have deterrent effects on his conduct

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The law has responded by developing §1983 actions which permit those subject to unconstitutional action to sue for damages

Leon seems to have had little effect on magistrates – no evidence suggests that warrants are now more or less common, or are reviewed with more or less scrutiny

o When will it be unreasonable for police to rely on a magistrate’s warrant? Presumably this will happen only when the magistrate is obviously wrong

o Similarly, a magistrate’s decision to issue a warrant will be overturned on appeal only when it is obviously wrong (Gates)

Thus, maybe Leon does not do a whole lot of work (because any case where the officer acted unreasonably, the warrant is likely to have been overturned anyway

When decided, Leon was thought to be very important for warrantless search cases – o The government’s argument in Leon would seem to be immediately applicable to a

situation where the government argues that even if a search was not constitutional, it was close enough that a reasonable officer could have believed it was constitutional

o However, Leon has not been expanded to warrantless searches There is no statute that requires state courts to have an exclusionary rule

o So its only possible source is the constitution, but the court says the constitution does not require it—

may mean states need not have an exclusionary rule might also mean that the legislature could do away with the exclusionary rule as

long as they replaced it with an equally effective remedy Illinois v. Krull – court applied the good-faith exception identified in Leon to a search pursuant to

an unconstitutional state statuteo The application of the exclusionary rule to suppress evidence obtained by an officer

acting in objectively reasonable reliance on a statute would have as little deterrent effect on the officer’s actions as would the exclusion of evidence when an officer acts in objectively reasonable reliance on a warrant

Arizona v. Evans – Court applied the good-faith exception of Leon when an individual was arrested because an error in the court clerk’s database said that there was a warrant out for him

o Exclusionary rule operates as a deterrent on police misconduct, not mistakes by court employees

o No evidence that the court employees are inclined to ignore or subvert the 4th amendment

Groh v. Ramirez – court excluded evidence because it found that an officer’s actions were not objectively reasonable when the officer searched pursuant to a deficient warrant that the officer had prepared (did not contain persons or things to be seized)

Key lesson of Leon, Krull, Evans – The exclusionary rule applies only when the error is one made by the police (when police conduct is not objectively reasonable)

Leon Good-Faith Exception and State Courtso Leon’s good-faith exception is not applied everywhere—a number of state courts have

construed their own constitutions to suggest good faith is irrelevant when reviewing a magistrate’s finding of PC

This is OK because state courts can find their constitutions are more constraining than the 4th amendment

o In New Jersey, the state court mostly adopted the view of the Leon dissent

Herring v. United States – Extends Leon; when police have conducted a search in good-faith that turns out not to have been warranted, the exclusionary rule should be applied only when it will have deterrent effects – when the search turned out to be deficient because of recklessness or purposeful error by the police.D went to the sheriff’s department to retrieve something from his impounded truck. An officer asked the county clerk’s office to determine if there was a warrant out for D, and the clerk replied that there was. The officer then arrested D and searched him where he found a gun and meth. Later, the officer learned that the warrant had been recalled 5 months earlier. D then moved to suppress the evidence recovered.

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Use of the exclusionary rule is justified only where it will deter police misconduct; thus use of the exclusionary rule is justified when police have acted recklessly or purposefully, but not where the police have merely acted negligently in maintain a system with inaccurate information that other officers relied on in good faith as part of a search. The court argues that the exclusionary rule should be applied only where the benefits of deterrence outweigh its costs. The court argues that exclusion does not outweigh its costs unless police conduct is sufficiently deliberate that it can be meaningfully deterred.

The dissent argues that the exclusionary rule would have significant deterrent effects in this context—dissent argues essentially that the exclusionary rule always has significant deterrent effects when it operates on police error. Thus, unlike Leon where error was made by the magistrate, here exclusion is appropriate because the error was made by the police.

Leon and its progeny focus on the blameworthiness of police conduct and the need for deterrence

Dissent also argues that there is a more majestic conception of the exclusionary rule’s purpose—that the rule provides a means for the judiciary to avoid the taint of official lawlessness and ensure the public that the government will not profit from lawless behavior

Standing The exclusionary rule remedy is available only to individuals who have standing to object to the

constitutional violation Theories of standing

o Target theory – subsequently rejectedo Legitimately on premises – subsequently rejectedo Individual has reasonable expectation of privacy in a place

Implications of standing are that police can use inappropriate means to gather evidence on someone else because that person will not have standing

Standing requirementso Must show have an adversarial stake in the claim—ensures sharp litigation necessary to

rule Will always be satisfied in a suppression motion

o Must show rights were personally violated Evolution of Standing Doctrine

o Jones v. United States – suggests anyone legitimately on the prmises has standing In order to have standing to challenge an illegal search or seizure, one must

have been a victim of the search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through use of evidence gathered as a consequence of a search or seizure directed at someone else

o Rakas v. Illinois – rejects the legitimately on the premises theory, and imposes a reasonable expectation of privacy requirement

A person who is aggrieved by an illegal search or seizure only through introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his 4th amendment rights infringed

Police stopped what they thought was a getaway car and seized a sawed off shotgun in plain view; the evidence could not be excluded by the passengers

o Now looks like ownership of property seized does not give standing.

Minnesota v. Carter – Temporary guests (those merely permitted on the premises) do not have a reasonable expectation of privacy in another person’s home and thus do not have standing to challenge illegal searches and seizures of these places when evidence that can be used against them is found (however, almost all social guests will have standing); conversely individuals more like overnight guests do have standing.

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Ds were seen by a police officer through a crack in window blinds bagging cocaine. When the Ds left the building, the police stopped the Ds and searched their car. They discovered a gun, pagers, a scale, and cocaine. Ds then moved to suppress arguing that the initial observation of the drug packaging was an unreasonable search, and thus the evidence discovered subsequently was the fruit of the poisonous tree.

The court finds that the Ds do not have standing to challenge search, and accordingly the evidence discovered should not be suppressed. The court argues that in Rakas the court established that in order to claim the 4th amendment, a D must demonstrate that he had an expectation of privacy in the place searched and that his expectation was reasonable. The court argues that the amendment suggests that the 4th amendment protections extend only to a person in his house, but the court have extended the doctrine to cover overnight guests. However, the court rejects an extension of the doctrine to anyone legitimately on the premises. The court argues that the purely commercial nature of the transaction, the relatively short period of time on the premises, and the lack of previous connection between respondents leads that court to conclude that Ds were more like individuals merely permitted on the premises, and thus do not have standing to challenge the search.Scalia – Examines closely text of the 4th amendment and finds that it is not intended to protect individuals who are in other people’s houses. 4th amendment says it protects people in “their papers…houses, etc.” Scalia argues that this could mean “their houses” or “their respective houses,” but it must mean “their houses” because otherwise “respective” would apply to papers, effects, etc. and would lead to absurd results because it would give any individual standing to challenge the search of another individual. Scalia also examines the historical context in which the amendment was adopted and argues that historical context indicates that individuals were intended to be protected only in their homes—the law is essentially derived from the notion that “a man’s home is his castle.” He argues that while it is possible to regard an overnight lodging as a man’s temporary residence, a similar finding is not reasonable for a place where an individual merely goes to pack cocaine.

Counters: 1 – Assumes that the constitution couldn’t possibly mean to give everybody (the people) the right to challenge the search of another individual, but elsewhere in the constitution the phrase “the people” is used to refer to such a collective right

2 – It is not necessarily true that one never has a reasonable expectation of privacy in someone else’s pockets

o Sometimes individuals give things to other people to holdo At the very least, could litigate this issue on social norms analysis (and would probably

win!)Kennedy – Argues almost all social guests have a legitimate expectation of privacy and thus protection against unreasonable searches in a host’s home. In this case, the individuals did not have a reasonable expectation of privacy and thus were not protected by the 4th amendment.Breyer – Argues that individuals do have standing to claim a 4th amendment violation, but no search occurred, and thus evidence should not be excluded.

Dissent reflects the concern that there is no remedy that prevents police from violating the 4 th amendment to obtain evidence on someone other than the owner of the house or container that is being searched.

The court’s general reaction to this is that police are deterred because by granting the exclusionary rule to those individuals with a reasonable expectation of privacy, police will always run the risk that some of the evidence they obtain will be excluded in certain circumstances, and this risk is sufficient to prevent the police from violating 4th amendment (also protected through §1983 actions)

Standard developed by Carter is a social Norms Standard – whether an individual has standing depends on whether the individual has a personal expectation of privacy that society is prepared to recognize as reasonable

o The standard – litigating this standard requires an analysis of social norms for an area; whether individuals in that area have a reasonable expectation of privacy in the house or container where their things were located depends on community practice

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Litigating whether have reasonable expectation of privacy in someone else’s belongings

If give something to spouse to hold in purse, litigation might depend on how purse is treated by others in the group, who else is accessing the purse, etc. – argue that no one else could/would have accessed purse and thus expectation of privacy was reasonable

o Affirmative Criteria Overnight guests do have this expectation of privacy – because individuals are

most vulnerable during the night when they are sleeping Majority of justices suggest that all social guests almost always have a

reasonable expectation of privacyo Negative Criteria – following suggest no expectation of privacy

Individual at a person’s house for a short period of time Individual at house for purely commercial purpose Lack of a meaningful connection between the homeowner and individual seeking

exclusiono Scope of standing doctrine – bounded by where one has a reasonable expectation of

privacy One does not have a reasonable expectation of privacy everywhere in the house

Issue with standing doctrine standard—the question for assessing standing is the same question for assessing whether the 4th amendment was engaged ( a search occurred)

o Standing – seems to involve a more zero-ing in sort of analysiso Search – involves a broad reasonable expectation analysis

In spite of the majority opinion, it seems like a majority of the justices (5) support the notion that “almost all social guests” are protected (have standing) under the 4th amendment

Some of language in majority’s opinion suggests that the individuals’ activity was not protected because there is no legitimate expectation of privacy in illegitimate activities

o However, this logic would undermine almost all suppression motions because suppression motions are used exclusively for excluding evidence related to illicit activity

Argument for strict enforcement of 4th amendment to exclude evidence of criminal activity—by making it harder to search an apartment for drugs, the 4th amendment protects apartments where no drugs will be found

o Remedy seems inconsistent with this aim—in order to protect the public at large, we let known criminals go free

United States v. Payner – D charged with falsifying income tax return; one federal agent lured a bank officer to dinner while another broke into the bank officers hotel room and stole document used against the defendant

o The court found that D lacked standing This case suggests issues raised by standing doctrine—law enforcement can use standing rules

to determine how to conduct operations in order to obtain the evidence they wanto Problem is that standing rules are intended to be “decision rules” whose audience is the

court—they are not intended to be considered by law enforcement when structuring activities

o However, because of their role as decision rules, these rules have become conduct rules determining how police conduct investigations

According to Justice Scalia, the Rakas principle (one can only assert own 4th amendment interests) is compelled by the 4th amendment

o This means that the only persons who will use the 4th amendment to challenge evidence will be persons trying to protect their own illegal activities

o This may suggest that the 4th amendment bars the exclusionary rule (or at least challenges its function) as a remedy

Fruit of the Poisonous Tree In fruit of the poisonous tree cases, one must always consider whether the suspect has standing

to challenge the initial search/seizure

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Fruits include physical evidence, statements, confessions, etc. Different questions apply to primary evidence and downstream evidence

o Primary evidence – evidence discovered in the process of an illegal search or seizureo Downstream evidence – evidence discovered as a result of the evidence discovered

during an illegal search or seizure, but not discovered during the unconstitutional action Suspects implicated by downstream evidence are much less likely to have

standing to challenge initial search or seizure

Wong Sun v. United StatesPolice arrested a man named Hom Way and found heroin in his possession. Hom Way claimed that he bought the heroin from an individual known as “Blackie Toy” who owned a laundry on Leavensworth street. Based only on this testimony, police went to Leavenworth and knocked on the door of a laundry called “Oye’s.” When the agents identified themselves as law enforcement, the proprietor fled inside the building. The police followed him and arrested him in his bedroom. Toy claimed that he did not sell narcotics, but said that he knew an individual named Johnny Yee who did have drugs. The officers went to Yee’s house, and after a short conversation Yee produced the drugs. He implicated another individual named Wong Sun and pointed out where Wong Sun lived. Wong Sun and Toy were both arrested and both gave statements to the police that they subsequently refused to sign/verify. Both Sun and Toy seek to exclude the evidence as the fruit of the illegal seizure of Toy. The lower court found that the police lacked PC for Toy’s arrest.

The Court finds first that the entry into Toy’s house was unlawful (or at the lower court could have found so). The Court argues that the police did not have any information that would have suggested that the “Blackie Toy” implicated from by Hom Way was the same as the proprietor at Oye’s laundry, and thus that finding that police had the authority to enter the house would be to suggest that a vague suspicion becomes PC when ambiguous suspect conduct is added. The Court finds next that Toy’s bedroom testimony should be excluded. Evidence seized during an unlawful search cannot constitute proof against the victim; this restriction extends to verbal statements made, even though they may be the result of intervening free will. The court finds next that as against Toy, the drugs discovered at Yee’s house must also be excluded. The court argues that the evidence was come at by exploitation of an illegality, and is not sufficiently distinguishable to be purged of the primary taint. The court finds next that Wong Sun’s statements must be excluded because heresay testimony cannot be used to corroborate an individual’s statement, and thus the police have no basis for corroborating Toy’s story and his case is dismissed. The Court finds Wong Sun’s statement admissible because even though his confession was the fruit of a bad arrest, the connection between the arrest and statement had become so attenuated to dissipate the taint because Wong Sun made the statement after he was released (moreover, he has no standing to challenge the initial bad search!). Corroboration is an issue with Sun too—the court remands the case for further proceedings because Toy’s statement was not enough to corroborate, but Yee’s drugs could provide corroboration for Sun.

Litigating the Caseo On Toy’s Bedroom Statement

Police argue that there was an intervening event that broke proximate causation—that intervening event was Toy’s decision to speak

o Wong Sun has no standing to challenge the initial entry into Toy’s house; thus if he wants to claim FOPT, he must claim that his statement was the product of an illegal search as to him

o Toy’s statement (if could be corroborated), would it be exdluded Analysis would proceed in the same way as the analysis of Wong’s confession—

the connection between the illegal search and the speech had become to attenuated for the speech to be FOPT

Would counter with – Toy’s situation is distinct because he was baited with evidence that is going to be excluded in his trial—not all that convincing, because that is just another way of saying Toy has standing

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to object to illegal searches and FOPTs, so if this is one, then he can do that

The chief “poisonous tree” in Wong Sun is Toy’s arrest—if the arrest were legal, then Toy’s statements would be legal, the heroin found in Yee’s bedroom would be admissible, etc.

o The court concluded that the arrest was not legal because Toy’s flight was ambiguous (partially because the officer never dispelled the misimpression that he was just there to pick up his laundry)—this is shaky PC analysis

Drugs taken for Yee couldn’t be used against Toy, but they could be used against Son because he lacked standing to complain of Toy’s illegal arrest

Police want to claim in Wong Sun that Sun’s unprovoked flight gave PC and exigency Overview of FOPT

o The exclusionary rule requires the suppression of illegally seized evidenceo Ds sometimes claim that a given piece of evidence was not illegally seized, but that its

discovery was caused by an illegal search or seizure (FOPT)o Justifications:

The government should not benefit from its wrong doing If police know they can use the fruits of illegal searches, they will have an

incentive to search illegallyo Response/criticism

Suppressing reliable evidence is a bad thing because it takes the trial further form the truth

Suppressing fruits of illegal searches is not necessary to ensure compliance with the 4th amendment because police cannot anticipate evidence they will find down the road because of a search (thus the incentive problem is not worth worrying about

In response, the law splits the difference— 1. Fruits of the poisonous tree must be suppressed, unless the taint of

the illegal search has dissipated 2. No D can complain of the illegal search of someone else

Contours of fruits of the poisonous tree When evidence is discovered as a result of an unlawful search of seizure 1. Fruits of the poisonous tree must be suppressed, unless the taint of the illegal

search has dissipated 2. No D can complain of the illegal search of someone else

o The basic concept underlying this criterion is causation Was the illegal search a but-for cause of discovering the evidence

Was the evidence obtained through an independent source? (if so, not suppressible) – suggests police had two sources for coming to the same evidence and one was legal

o This is not a hypothetical inquiry- police actually had two sources, and this suggests the police would have gotten the warrant anyway

o If police would not have applied for a warrant absent the illegal search, then evidence would not have been inevitably discovered

Would the evidence inevitably have been discovered? (if so, not suppressible) – is a hypothetical independent source—would the police have inevitably discovered the evidence in the course of their investigation

Was the illegal search the proximate cause of discovering the evidence? Relates to 4th amendment concept of attenuation—whether the “taint” of

the illegal search had dissipated No per se rules, but rather is probably a balancing of facts analysis

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Intent to search illegally in hopes of obtaining later evidence suggests proximate cause; intervening events, likelihood that would have discovered evidence anyway, etc. suggest no proximate cause

Brewer v. Williams – establishes inevitable discovery as a means for severing proximate causation in FOPT analysis, and thereby overcoming suppression motion

o At time, court accepts inevitable discovery when police had a search plan in place that was 1-2 miles from the evidence, and was planning on closely searching the area in which the evidence was ultimately found

The linchpin of the inevitable discovery doctrine is that the police must be trusted to reveal 1) what they would have done, 2) that they won’t invent evidence to justify a search, once they have discovered evidence illegally

Murray v. United States – Independent source doctrine applies to evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegalityLaw enforcement officers had been surveying D and several of his co-conspirators. They saw D drive into a warehouse. D’s vehicle was driven out of the warehouse by other drivers. The police arrested these drivers and discovered marijuana in the vehicle. After obtaining this information, other officers forced entry into the warehouse and saw numerous burlap-wrapped bundles. They left the warehouse without disturbing anything and applied for a warrant in which they did not rely on any evidence obtained during their entry into the warehouse. Before trial, petitioners moved to suppress evidence found in the warehouse as the fruit of the poisonous tree.

The court finds first that the independent source doctrine 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. The court argues further that the inevitable discovery doctrine is an extrapolation of the independent source doctrine—since tainted evidence would be admissible if it was discovered through an independent source, it should be admissible if it inevitably would have been discovered by an independent source. The court argues that these rules to not create perverse incentives for the police because an officer with PC to enter a building would not do so without a warrant because of the possibility of discovered evidence being excluded—at the very least he will have to justify his actions to the magistrate. Applying these rules to this case, the court remands the case for a determination of whether the marijuana was discovered through a truly independent source; the court recognizes that the warrant application did not rely on prior entry to the warehouse, but if the agents would not have sought a warrant if they had not earlier entered the warehouse, then the warrant search would not have arisen through an independent source.

Hudson v. Michigan – Proximate cause in the FOPT doctrine can be severed when the constitutional interested protected would not be served by the suppression of evidence. To determine if the constitutional interest protected would be served by the suppression of evidence, balance the interests of the social costs of deterrence against the benefits.Police obtained a warrant authorizing a search for drugs and firearms at P’s home. When the police executed the warrant they violated the knock and announce requirement. P moves to exclude the evidence as the subject of an illegal search.

The court holds that the exclusionary rule should never be applied to knock-and-announce violations because the social costs to the violations are high, the deterrent benefits are minimal, and the incentives to violate the rule are minimal.. The court argues that suppression of evidence has always been a last resort, and is appropriate only where its deterrence benefits outweigh its social costs. The court argues that exclusion is not warranted merely because a constitutional violation is a but-for cause of obtaining evidence, but rather for exclusion to be justified the violation almost must not be so attenuated as to justify exclusion (remove the taint). The court argues that a violation can become so attenuated even in the presence of a direct causal connection when the interest protected by the constitutional protection would not be served by suppression of the evidence obtained. In this case, the court argues that deterrence does not

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outweigh social costs. The court argues that there are high social costs—it would result in a flood of litigation on whether an officer’s knock and announce was sufficient, and may deter officers from proceeding safely in executing a warrant. The interest on the deterrence police conduct is low because police conduct encourages police safety. Kennedy – In this case, relevant evidence was discovered not because of a failure to knock-and-announce, but because of a subsequent search pursuant to a lawful warrant. Suggests that violation was not the but-for cause of the discovery of evidence (inevitable discovery?).

Dissent much more concerned about applying knock-and-announce.

One might argue that the knock-and-announce principle should be folded into the broader requirement that searches be carried out reasonably—the same requirement that limits police use of force against criminal suspects

o One could also argue that the rule is a good rule, but it should be left out of 4th amendment litigation (not protected by the constitution) because courts are not will equipped to decide when no-knock entries are appropriate

Counter – all 4th amendment litigation involves these fine-grained distinctions in what police officers saw and heard

o Perhaps all of this suggests only that a detailed constitutional law of privacy is bound to draw fine lines, question is should it draw these fine lines in the context of knock and announce?

Direct application of doctrine to Hudsono FOPT requires the suppression of all evidence the police obtained for a search or seizureo Violation of knock-and-announce cannot cause the police to discover evidence, unless

the suspect is in the process of destroying the evidence at the time of police entryo There is no constitutional right to be permitted to destroy evidenceo Thus knock-and-announce should never be enforced by suppression motion

Causation-based analysis is not the only way the 4th Amendment law governs the scope of the exclusionary rule—another approach focuses on whether police conduct was blameworthy

Additional implications of Hudsono Hudson recognizes that the knock and announce rule is a 4th amendment requirement,

but finds that the knock and announce rule is not remedied through the exclusionary rule Language in opinion says that the suppression remedy is a remedy of last resort Suggested the Mapp interpretation of a broad exclusionary rule is overbroad

dictao Thus, the case opens up the possibility for the exclusionary rule not to be applied to other

4th amendment violations—this could provide the basis for overturning the exclusionary rule 50 years from now

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Regulating Police Interrogations and Confessions

The Fifth Amendment Privilege: Background Values and Scope Provisions relied on by the court to regulate interrogations:

o 5th Amendment – No person shall be compelled in a criminal case to be a witness against oneself

o 5th amendment/due process clause – no person shall be denied liberty without the due process of the law

o 6th amendment – in all criminal prosecutions, one has a right to counsel Questions implicated by American regulation of interrogations

o Why not allow people to be asked questions on the stand and let a jury draw inferences from a defendant’s refusal to answer? (Why not interpret the 5th amendment differently)

Fear that self incriminate is associated with inhumane practices (torture) Cruel to put people in the position of being forced to perjure themselves or

accuse themselves Flows from adversarial – we are committed to a process where the state bares

the whole burden of proving guilt 5th amendment is intended to provide some private space to protect the innocent

Elements for the 5th amendment to apply; 5th amendment applies too Persons – 5th amendment protects people, not artificial entities (e.g. corporations)

Because the injuries the 5th amendment is intended to prevent are suffered only by people

o Compulsion Initially thought of only as compelled testimony in court Step 2 (reflected in Miranda): Informal pressure of the police interrogation room

recognized as compulsiono Evidence is testimony – evidence is privileged, but not physical testimony (can take your

blood, but not your testimony) Suggests something uniquely invasive about asking questions (because of

potential for lying) Suggests something particularly degrading about confession

o Incrimination Incrimination element can be eliminated by a grant of immunity The right must be invoked at the time of potential incrimination, or else the right is

waived In the civil context, one can incriminate oneself for a criminal trial, so one

must invoke the privilege in civil subpoenas if hoping not to be criminally implicated

Promises of immunity sometimes come with immunity in use and use of derivatives from testimony (this is what D wants)—this mean that not only is testimony eliminated from evidence, but it cannot be used to lead to other evidence; police must have an independent source, and the existence of this independent sourced is monitored closely by the police

If get immunity- should testify on EVERYTHING This is good for prosecutors because prosecutors get more complete

testimony The Court rejected an analogy between civil subpoenas and searches—so information

subpoenaed is not protected by the 4th amendment, even though it may be the same informationo This means that subpoenas need not be protected by PCo Analogy rejected because a subpoena is not protected

THE POINT OF THIS INTRODUCTION IS THAT MIRANDA WAS NEVER AN INEVITABLE CERTAINTY

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***The Fifth Amendment, unlike the 4th Amendment takes the perspective of the guilty person—one must have incriminating evidence in order to be protected

Voluntariness Doctrine and its DiscontentsOverview of Current State of Miranda Doctrine

Adequacy of invocationo Davis – invocation must be unequivocal

Miranda told us once suspect invokes, questioning must ceaseo Government must merely show one did something to waive

Miranda says burden on proving waiver is higher In reality, fairly easy to prove waiver

Which right did suspect invoke?o Silence – Apply Mosley

Questioning must cease immediately, but in the face of subsequent interrogation: Police must “scrupulously honor” invocation, but can return— Analysis proceeds as did police scrupulously honor invocation?

Fact bound inquiry—time gap, different detectives, different crime (unclear which of these criteria is necessary)

o Counsel – Apply Edwards/Shatzer Edwards – police required to cease questioning and couldn’t go back unless

subject re-initiated Legal focus on what re-initiation means – Much more protective than Mosley rule

Shatzer – if invoke right to counsel, is a 2-week rule – once allowed to return to your normal life for 2-weeks, police can re-question you (includes re-release into jail)

Unclear if will have any effect on Mosley—maybe indicates that the time element is most important in Mosley

Factual accuracy of statements made under duress is problematic where the only means of stopping the interrogation is to assent to the interrogator’s views of what you did

o thus the view developed that a person should not face a coercive interrogation designed to yield self-incriminating evidence

Opposition to coercive interrogation gained support from the practices of the High Commission of the Court of Star Chamber in England which required one to swear that they would answer all questions truthfully before knowing the subject of the inquiry; objection was based on the notion that it is unfair for the state to attempt to coerce an individual to contribute to his own conviction

In spite of this opposition, the Fifth Amendment freedom from self-incrimination did not extend to confessions at the founding of the US—confessions were excluded only if they were untrustworthy

In 1897, Supreme Court brought pretrial interrogation into the scope of the 5th amendmento Bram v. United States – Bram was charged with killing the master of the ship he was on

travelling from Boston to South America; Bram’s confession occurred when he was stripped naked

The situation of the accused and the nature of the communication made to him by the detective necessarily overthrows any possibility that his confession could have been the result of purely voluntary mental action

Wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by the Fifth Amendment

Consider the conversation by the light of the impression it was calculated to produce on the mind of the accused

o Bram had little immediate impact Not applied to the States until 1964 (Malloy v. Hogan) Court invoked the 5th amendment, but relied on the CL’s voluntariness standard,

which rests on 14th amendment due process

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DUE PROCESS VOLUNTARINESS TEST Brown v. Mississippi – Inaugurated the voluntariness (that confessions be voluntary) requirement

for state caseso A mob obtained a confession by beating men with belts until they confessedo Recognized that precedent dictated that the 5th amendment did not bind state courtso However, the state is free to regulate the procedure of its courts unless in doing so it

offends some principle of justice so rooted in the traditions and conscience of our people; non-voluntary confessions violate the 14th

After Brown, voluntariness cases were complicated and very fact-driven; Ds claimed police brutality and the police denied it

o E.g. Ashcroft v. Tennessee – Ashcraft claims he was abused, officers claim they were courterous

o Watts v. Indiana – D confessed after several basically continuous days of questioning during which he was put in solitary confinement at night

A statement to be voluntary need not be volunteered, but it cannot be the product of sustained pressure by the police

Should permit this sort of interrogation when there are grounds to suspect an individual. Introduced central issue as that being denial of access to a lawyer.

o Debate in Watts continued until 1960s; court began to shift its focus to prevent coercive interrogation

court’s focus shifted towards an analysis of whether the police conduct was unacceptable in a free society

Justices increasingly distrusted fact-finding process (and thus the fact-bound voluntariness test lost favor)

Justices thus driven to an alternate voluntariness test in Massiah Summary

o The Court began its regulation of confessions with the due process requirements—this meant that testimony was admissible only if confessions were voluntary; voluntariness requirement extended to regulate

o Activities court seeking to regulate – question through this entire period was what, besides physical violence, are police prohibited from doing?

Physical violence Extended interrogation in uncomfortable positions Suspects denied ability to communicate with others Deception

o This method of regulating confessions became disfavored because it involved a very fact-bound, totality of the circumstances analysis, and thus shifted focus of regulation

Step 2: Regulating interrogation through the 6th amendment right to counselMassiah v. United States – An individual has the right to counsel during all police questioning (direct and indirect) that begins at the time of arraignment and extends to the period of trial.P was indicted for transporting narcotics on a US vessel from South America. P retained a lawyer, pleaded not guilty, and was released on bail. Meanwhile, one of P’s accomplices turned on P and planted a radio transmitter in his car so that an officer could listen to their conversation. P appeals his conviction arguing that it was an error to permit the officer to testify about his conversation.

The court holds that the right to counsel extends from the time of arraignment until the beginning of trial. The court holds further that if this ruling is to have any efficacy, it must apply to indirect and surreptitious interrogations, as well as those conducted in a jail house. The court argues that the right to counsel is necessary because the most elemental concepts of due process require an indictment be followed by a trial presided over by a judge and protected by procedural safeguards. The Court recognizes that the police may need to continue investigation after arraignment, but they cannot use evidence of a Ds statements in the absence of counsel against him.

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Only the soundest of reasons is necessary to warrant exclusion of evidence. The rationale would seem to apply to any time that an individual is questioned, whether or not that individual has been indicted. This holding amounts to prohibiting in the use of evidence any confessions made by the accused because once an accused has a lawyer, he will not confess. This rule also draws absurd distinctions because testimony from an accomplice would be admissible, but not if the police are involved, and thus this will decrease the number of informants.

Meaning of Massiah was not completely clear—not clear how far the right to an attorney extended—it was unclear whether it mattered if D had already been indicted, been arraigned, or retained counsel

Escobedo – D had been arrested, but not charged and invoked his right to counsel

Escobedo v. Illinois – Where the investigation is no long an inquiry into an unsolved crime, but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out interrogations that lend themselves to eliciting incriminating statements, the suspect has requested and been denied counsel, the accused has not been advised of right to remain silent, no statement elicited can be used at trial.

The reach of Escobedo was unclear—seemed to indicate that the court was leaning to addressing right to be free from self-incrimination through an extension of the 6th amendment—by extending right to counsel to all parts of the investigation

However, Court took a different route in Miranda, instead opting to protect suspects through the 5th amendment

Case looked like Court was moving towards extending the 6th amendment to all interrogation and making it the main basis for moderating police interrogation

Miranda kills the 6th amendment as an avenue for protecting suspects in the interrogation context (opts instead for protections under a 5th amendment theory)

Step 3: Miranda

Court examined police manuals to determine what is happening in interrogations rooms because it was believed that no one had access to interrogations rooms because observers were excluded

o Today the response is—what about videotaping interrogation? Could suggest changes in jurisprudence

In Miranda, court turned to the issue of psychological coercion Raises question of whether Miranda alters due process analysis

Miranda: Procedures to protect privilege Litigating in Miranda Regime

o Coercion Custody – level of restraint associated with a formal arrest Interrogation – Innis, Perkns Warnings – Florida v. Powell (2010); once have custody and interrogation, have

compulsion so must give Miranda warnings If warnings not given, statements are inadmissible

Waiver – Burbine Invocations – Davis, Mosley, Edwards, Shatzer (2010) FOPT – Seibert, Patane

o Testimonyo Incrimination

If have custody and planned interrogation, must give warnings Once give warnings, suspect must waive or must invoke

o What counts as a waiver?o If invoke, what are the next steps? Must all interrogation stop?

Warnings – Florida v. Powell speaks to adequacy of warnings –

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Police have adapted very well to Mirandao When Miranda was reconsidered, many police amicus briefs supported keeping Miranda

– suggests police prefer this to voluntariness test where would scrutinize closely whether action was coercive

o because under Miranda, once give warnings, are good to go! – basically per se satisfy voluntariness test

Miranda v. Arizona – The prosecution cannot use statements stemming from custodial interrogation of a defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination, and a suspect gives a valid waiver of his constitutional rights.Rather than pointing to specific facts of an unconstitutional interrogation, the facts examine police interrogation practices in general. The court recognizes that since outsiders are excluded from the interrogation room, it is not possible to examine the facts of a specific interrogation, and instead looks to police manuals to determine interrogation techniques. The Court description suggests that though these techniques are not violent, they are coercive. Specifically the court expresses concern over the use of deception (false line-up), police providing mitigating explanations to suspects (legal and moral excuses), police suggesting it is suspicious to invoke Constitutional rights, 4 good-cop/bad-cop, and the length of time of interrogations.

The court finds that in order to obtain testimony from custodial interrogations, police must follow strict procedural safeguards. The court argues that even without employing any of the strategies listed above, custodial interrogation by its nature exacts a heavy toll on liberty and has a coercive effect that may compel individuals not to exercise their 5th amendment rights, and thus no testimony obtained from a D can truly voluntary. Thus, the freedom from self-incrimination extends to any period of custodial interrogation. While states are free to come up with more effective protections for suspects rights, at a minimum police must inform suspects before a custodial interrogation that 1) he has a right to remain silent, 2) anything he says can and will be used against him in court, 3) right to an attorney, 4) if he cannot afford one, one will be provided. If at any point during questioning a suspect manifests a desire to stop speaking, the interrogation must stop; similarly if he manifests a desire for an attorney, the interrogation must stop until the attorney arrives. This implies that no inquiry will be made into whether the suspect was already aware of his rights. If interrogation continues in the absence of an attorney, a heavy burden rests on the state in proving that an individual waived his rights; just because a warning was given does not signal that any confession is therefore voluntary absent a valid waiver of the suspect’s rights. Whether a voluntary waiver was given is a factual analysis—lengthy interrogation before a statement was given, and any evidence of trickery suggest a lack of voluntariness. In spite of this holding, purely voluntary confessions are still permissible. Analysis is a sort of constitutional default analysis—in the context of interrogation all elements are present that are necessary to invoke 5th amendment protections; court argues that in the absence of a better solution, at a minimum Miranda applies

The dissent criticizes the holding for lacking a sound basis in the text of the Constitution. One dissenter also points out that a flaw inherent to the system developed by the court is that if one considers custodial interrogation to be inherently coercive and thus involuntary, a suspect cannot voluntarily waive his rights because his opportunity to waive his rights will also arise in a coercive context.

Miranda warningso Right to remain silento Anything say can and will be used against youo Right to an attorney who can be present during the interrogation

If invoke right to attorney, one does not have to be provided, but if one is not provided, the interrogation must stop

o If you cannot afford an attorney, one will be provided for you Means of attaining a waiver

o Signed waiver (optimal)

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o Oral waivero Silence/convalescence after a long period of time does not constitute a waivero No waiver- suspect invokes rights

In some ways, Miranda rights are clearly deficiento Fail to say that silence/decision not to talk cannot be used against someoneo Does not explain what will happen if an individual invokes privilege

Miranda does not replace the voluntariness regime, but rather supplements it; after Miranda suspects can claim

o A violation of their Miranda warning rightso That confessions were not voluntary

Miranda raises the question of whether Miranda is also sound policy for military interrogation and interrogation of suspected terrorists

o Hypothetically, if suspected terrorists are given the same Miranda rights, they may ask for a lawyer soon after capture, and then be free from interrogation and ultimately unconvictable

Raises the question of why terrorists are likely to respond differently than most people

o Some concern that extending Miranda to terrorists results only in political jockeying/vague abuses of the Constitution (e.g. branding suspected terrorists as enemy combatants)

One of concerns in Miranda appears to be that police interrogation practices were something of a mystery

o Some have suggested this could be remedied by video taping or audio taping interrogations (as a substitute to reading suspect Miranda rights)

Would be a very difficult factual determination for jury to determine whether a statement was then voluntary

***Concern in Miranda context is abou false confessions White Dissent – All the same factors that make police interrogation coercive apply to the question

of whether a suspect would like to waive his Miranda rights—should this make it almost impossible to show that Miranda rights were waived?

Court basis ruling partially on fact that FBI has used Miranda warnings effectivelyo Raised questions about whether warnings were effective in FBI context because of

nuances/differences in types of crime investigated by the FBI (e.g. examine more white collar crime where people already know rights)

o One of the accusations of many who disagree with the opinion is that the opinion reflects judicial liberal judicial activism

However, the FBI at the time was not known for liberal/progressive investigative techniques

Miranda did not completely replace the voluntariness requirement, the due process requirement of voluntariness still applies to confessions

o Voluntary implies only freedom from coercion by police not private parties Colorado v. Connelly – suspects statements not found to be involuntary because

he was compelled to issue them by voices inside his heado However, after a waiver police can use the psychologically coercive tactics that were

documented in the police manuals (as long as interrogation still voluntary) Requirements for invoking 5th amendment protection

o Compulsion Custody Interrogation

o Testimony – For which compulsion is cause in facto Incrimination

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Defining Custody (for 5th Amendment Purposes) Custody – the level of restraint associated with a formal arrest; is a totality of the circumstances

analysis, from the perspective of the suspecto Satisfies Custody Requirements

Orozco v. Texas – suspect questioned in his bedroom at 4am by 4 officers was in custody

Any arrest (Berkemer v. McCarty) Taken into station house and not free to terminate the encounter for an extended

period of timeo Fails Custody Requirements

Oregon v. Mathiason – no custody when suspects voluntarily go to station house and confesses

Terry stops do not satisfy the custody requirement (Berkemer v. McCarty)

Defining Interrogation (for 5th Amendment Purposes) Interrogation

o Express questioning counts as interrogation Exceptions

Booking Question Exception Perkins – Where direct questioning is not coercive – person questioned

does not believe person who is asking questions has power over themo The functional equivalent of express questioning counts as interrogation – any words or

actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Muniz – individual pulled over for drunk drivingo Nothing that occurred at the roadside was protected—don’t need to give Miranda in topso Physical evidence not protected by Miranda (e.g. field sobriety tests)o Considered in custody once taken to booking station

Booking question exception – questions asked in the course of booking are not considered interrogation for the purposes of Miranda

Rhode Island v. Innis – Interrogation includes direct questioning and its functional equivalent – any words or actions by the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. A taxi driver was shot and killed. A few days later a taxi cab driver was robbed at gunpoint in the same area. When that driver went to the station to give a statement, he identified his assailant from a picture on a bulletin board. While on patrol an officer spotted the suspect, arrested him, and advised him of his Miranda rights. Soon the Sergeant arrived and gave the suspect his Miranda rights, then the Captain arrived and gave him his Miranda rights. On the way back to the station one patrolman started a conversation with another patrolman about there being a school nearby and his concern that a child might find the gun and shoot herself. The suspect then volunteered to show them where the gun was and let them right to it. The Court considers whether the evidence should be excluded because it was obtained through an interrogation without a valid Miranda waiver.

The Court first recognizes that Miranda does not cover only direct questioning—several of the practices that evoked concern in Miranda did not include express questioning. The Court also recognizes that interrogation must reflect a measure of compulsion above and beyond that inherent to the custody because not all statements obtained by the police after a person has been taken into custody can properly be considered interrogation. Accordingly, the Court holds that the 5th amendment applies to direct questioning or its functional equivalent. Applying that standard, the Court finds that the suspect’s 5th amendment rights were not violated because there was no reason that the police should have known that their conversation was likely to elicit an incriminating response—nothing in the record suggests that the officers were aware that the respondent was peculiarly susceptible to an appeal to his conscience, and the conversation consisted of merely a few offhand remarks.

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Stevens dissents because he believes that to protect suspect’s rights, interrogation must include any police conduct that has the same purpose or effect as direct questioning, and thus statements that appear to be designed to call for a response should be considered interrogation. He believes this standard has been met in this instance.

Test after Inniso Interrogation is express questioning OR o its functional equivalent – words or actions by the police that the police should know are

reasonably likely to elicit an incriminating statement from a suspect take perspective of the officer on what the suspect’s susceptibility would be One explanation – from perspective of innocent person – creates no risk that

innocent person will incriminate self—suggests loose application of test for indirect questioning

Explanation 2 – This is not an activity that police could use again – footnote suggests it is persuasive that remarks weren’t designed to elicit a response; next time, officers should know it is reasonably likely to elicit a response

o Lesson – tricks and coercion are different things; suggest not worried about trickery, but worried about compulsion; suggest give wide discretion to police using trickery

Seems to reject reasoning of Miranda! Miranda was about trickery Innis – facts (details) very important in finding did not amount to interrogation; if facts different

(conversation longer, police intent different) might have been interrogationo Suggests not worried about trickery, worried about coercion

Functional equivalento Idea is that direct questioning is coerciveo In looking for functional equivalent look for something that is equivalently coercive

Test as applied in Innis case:o Cops just talking to each other (clearly no direct questioning)o Conversation did not last long

If police listen in on a conversation between a husband and a wife after telling them that the conversation will be recorded, the evidence obtained will not be considered to have been obtained by interrogation

Line between coercion and deception - worried about coercion, not about trickeryo In Miranda we were worried about deception, but today are comfortable with lots of

deception o Must consider whether there are some forms of deception border on coercion

Illinois v. Perkins – Miranda warnings are not required when a suspect is unaware he is speaking to a law enforcement officer (when concern about coercion is absent); questioning by an undercover officer does not count as interrogation. The police received a tip on an unsolved murder from an inmate at a correctional facility who heard the account from his cell mate. The police than insert an undercover agent into the cell block with the suspect. While planning an escape, the undercover officer baited the suspect into telling him about the murder.

The Court finds that the statements were voluntary, and thus can be admitted at trial. The Court argues that conversations with undercover agents do not implicate the concerns of Miranda—that statements will be coercively obtained because the statements do not take place in a “police-dominated atmosphere.” The Court argues that when a suspects considers himself in the company of cellmates, a coercive atmosphere is lacking, and thus the danger of coercion subsides.Concurrence agrees that the questioning did not violate the Miranda requirements, but expresses concern that the deception may have violated due process. He argues that deliberate deception

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appears to be incompatible with a system that presumes innocence and assures that a conviction will not be obtained by inquisitorial means.

Dissent argues that Miranda was not intended to deal merely with police coercion, but any police tactics that may operate to compel a suspect to make incriminating statements without awareness of his constitutional rights. Dissent argues further that compulsion can be achieved by any police deception, and also argues that a jail is an inherently coercive environment because of fear of other inmates.

Illinois v. Perkinso He has 4th, 5th, and 6th amendment objection

4th – No go under White; informant is not a search US v. White – conversations with undercover agents (even those

wearing wires) are not searches If Perkins had come out differently, undercovers would have been totally

permitted before arrest, but almost totally prohibited afterwards; potentially there is no great reason to draw this line

5th – Claim is that was under custody and was interrogated (direct questioning) 6th – Places some constraints on this use of undercover agents; 6th amendment

right to counsel protects from police eliciting information for crimes with which one has already been charged

o 5th Amendment State Argument Not in Custody, he is at home; thus this is not Miranda coercive custodial

environment Even if Custody, doesn’t count because is not type of coercion Miranda had in

mind—had no reason to think people he was talking to had power over himo Suggests that a lot of Miranda is dicta

In certain situations the use of undercovers to get information from defendants in custody runs into 6th amendment problems

o Arizona v. Fulminante – Undercover offered to protect a guy in jail from assault from other inmates if the informant would tell him what happened in a rumored murder

Perkins suggests that trickery is an appropriate means of obtaining incriminating statements—is that the right signal to send?

o Concern – police may use deceptive tactics to avoid Miranda’s restrictionso Police may mislead a suspect in an effort to induce him to waive Miranda rights

Pennsylvania v. Munizo Muniz was arrested for drunk driving and taken back to the station house where was

asked a series of questions during bookingo He sought to have answers suppressedo Routine booking exception to Miranda – questions used to secure the biographical data

necessary to complete booking or pretrial services are not subject to suppression under Miranda

What Constitutes a Valid Miranda Warning? Adequacy of Warnings

o Best thing is to give language tracking text of Miranda itselfo Florida v. Powell –

Miranda says must say have the right to consult with lawyer and have right to have lawyer with you during interrogation

Powell – “you have the right to talk to a lawyer before answering any of our questions and you have the right to use any of these rights at any point durint the interview”

Claim – language did not explain made clear that had right to have lawyer sit with him

Court – When take common-sense approach, clear that should have understood warning

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What Constitutes a Valid Waiver? Davis v. United States – Invocation of Miranda Rights must be unequivocal; if suspect says

something equivocal (e.g. “Maybe I should talk to a lawyer”) about invocation of right to silence or counsel, doesn’t count

o Before interrogation waives Miranda rightso 1.5 hours into interview he says “Maybe I should talk to a lawyer” o Officers ask him for clarification—ask if he is asking for a lawyer, or merely commenting

on a lawyero He says he doesn’t want a lawyero Later says I want a lawyer, and questioning ceases

The text of Miranda shows consistent concern about the waiver—the opinion suggests that nobody will waive her rights

However, waivers are extremely common—a study suggests that only 21% of people invoke their Miranda rights

If no Miranda warning has been given, an individual cannot waive her Miranda rights Language of Miranda Warnings

o Courts have been flexible with language of Miranda warningso As long as all 4 parts are conveyed, and the police make no attempt to mislead a

suspect, Miranda warnings likely to be sufficient If an individual invokes his right to an attorney, Miranda does not require the suspect be given a

right to an attorney immediately, but requires rather that the police stop questioning the individual Discrepancy between Davis and Powell—police can say whatever and it counts as a valid

warning; people have to same exact magic words to invoke rightso Means people who invoke Miranda (who know how to invoke Miranda) are going to be

people who didn’t need Miranda to begin with – criminals, or people with legal representation

o Consider in equivocal analysis Timing (how soon after Miranda warning, where lawyer comment comes in

relation to waiver)

Invocations Effect of Invocations

o In order to invoke, must be unequivocalo Invoke Right to Silence – Mosley; police must scrupulously honor that righto Invoke Right to Counsel – Edwards replaced by Shatzer

Cannot question you unless you re-initiate unless they have released you for 2 weeks into you own environment (whether that be jail or freedom)

Michigan v. Mosley – Mosley was arrested, briefly interrogated, and then invoked right to remain silent. Later a different officer advised him of his rights, obtained a waiver from him, and secured information from him about a different crime. The Court found no violation of his rights.Miranda cannot sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent. Whether statements obtained after a person in custody has invoked his right to remain silent depends on whether his right to cut of questioning was scrupulously honored. In this case, the suspect’s rights were honored because the subsequent questioning was about a different crime, and occurred at a different time, and thus was consistent with Mosley’s earlier refusal to answer questions about the first crime.

Edwards v. Arizona – Once an accused has invoked the right to counsel, a waiver cannot be established by showing the suspect responded to further interrogation; one an accused expresses desire for an attorney, he cannot be subject to any further interrogation until counsel has been made available.

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Suspect was arrested given his Miranda rights. After being told that another suspect had implicated him, Edwards expressed a desire to make a deal. He then invoked his right to counsel. The next morning two detectives shows up to speak with Edwards. The guard told Edwards that he had to talk to the detectives, even though Edwards expressed a desire not to talk to anyone. The officers then read Edwards his Miranda rights, and he agreed to talk to the police, as long as the conversation was not recorded. Edwards claims that his testimony should be excluded because having invoked his right to counsel, he did not validly waive the right.

The Court holds that when an accused has invoked his right to counsel, a valid wavier cannot be established by a showing that the individual responded to further police-initiated custodial interrogation, even if he is again advised of his rights; the Court further holds that an accused who expresses a desire for counsel cannot be subject to any further interrogation until counsel has been made available, unless the accused initiates the communication.

After Edwards and Mosley, invocation of the right to counsel gets greater protection than invocation of right to remain silent

Edwards holds that when a suspect in custody invokes the right to counsel, the police cannot initiate further questioning

o Meaning of initiating question (Oregon v. Bradshaw) Police officer did not initiate further questioning when conversation followed

suspect asking police what would happen to him because suspect’s question evinced a willingness and desire for discussion with police

Dissent contests that question suggested a general willingness to have a conversation with the police

After Edwards, the definition of “invokes” is also particularly important because after an individual invokes, the police may have no further opportunity to question him

o Davis v. United States – If a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking, precedent do not require the cessation of question. The suspect must umambiguously invoke to get Miranda protections

Smith v. Illinois – an accused’s response to further interrogation after his request for counsel cannot be used to cast doubt on the clarity of the initial invocation

Once invoke unambiguously, all questioning must stop Concern of Dissent – some Ds may respond hesitantly so that the only invocation

they will/could ever give is tentative – Davis effectively means these people are forced to be talked to the police, but Edwards was designed to prevent that result

o Connecticut v. Barrett – suspect’s refusal to make a written statement without counsel present did not amount to a generalized assertion of counsel sufficient to count as invoking

Minnick v. Mississippi – If suspect invokes, is allowed to consult counsel, and this is interrogated, this violates Edwards

o Once an individual has invoked, individual must have counsel with him at any future questioning

Roberson suggests that when invoke right to counsel, right stands even if are questioned for a different crime

o Minnick says right stands even after D has seen a lawyero Does that mean that invocation is good until the suspect is released from prison years

later? Absolute nature of Edwards, Roberson, and Minnick give police officers a strong incentive to

avoid invocationso Presumably coercive questioning tactics that ratchet up pressure are more likely to lead

to invocationso Thus these cases presumably pushes police towards less coercion

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However, this would seem to hold true only if people invoke Miranda rights, while in fact 79% of time people do not invoke.

Waivers without Invocation While Miranda majority indicated that the State would have to meet a heavy burden to

demonstrate waiver, subsequent decisions have lightened the load considerablyo North Carolina v. Butler – Individual refused to sign waiver form, but agreed to talk with

officers; Court found Miranda waiver valid “In at least some cases waiver can be clearly inferred from the actions and words

of the person interrogated”o Colorado v. Spring – Waiver valid even if defendant not apprised of every alleged crime

with respect to which police intended to interrogate him – “once Miranda warnings are given it is difficult to see how official silence could cause a suspect to misunderstand his constitutional rights”

There is some question of whether it matters to a waiver whether the suspect is already represented by counsel

o In NY police cannot approach a suspect (and thus he cannot waive) if the police know that the suspect is represented by counsel

Moran v. BurbinePolice arrested D in connection with a local burglary. Shortly before the arrest the police learned the name and address of a man who committed a previous murder. The police realized that this individual had been arrested in connection with this burglary. Accordingly, the police read the individual his Miranda rights. Meanwhile, D’s sister called the public defender’s office and the PDO called the police to inquire about when D would be interrogated and to alert the police that D was represented by counsel. The PDO was told that D would not be interrogated until the next day. Later that evening D was interrogated and confessed. D then moved to exclude evidence of the confessions because the police misinformed the attorney or because the police failed to inform the suspect of the attorney’s efforts to reach him.

The Court finds that D validly waived his Miranda rights. The Court holds that a waiver requires that 1) that an individual voluntarily waived his rights, and 2) that the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Applying this standard, the Court argues that D waived his rights. The Court holds further that once it is determined that a suspect’s decision to waive was un-coerced and that he was aware of his rights, the analysis is complete and the waiver is valid. The Court argues that events that occurred outside of the presence of D can have had no impact on his ability to comprehend and knowingly relinquish his constitutional rights. The Court holds further that deliberate or reckless withholding of information is only relevant to the constitutional validity of a waiver if it deprives D of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. The Court argues further that Miranda warnings are intended to protect an individual’s right against self-incrimination, not to prevent all police trickery, and thus the Court declines to extend Miranda to require the police to notify Ds of an attorney’s attempt to reach him. The Court argues that Miranda was intended as a balance between protecting against the innately coercive environment of the interrogation room and the need for police questioning as a tool for effective enforcement. The Court recognizes that on facts more egregious police deception can on some instances rise to the level of due process.

The Dissent argues first that the burden of showing a valid waiver rests on the government; the dissent argues next that Miranda was intended to protect against deceptive misstatements by the police, and it is not possible to distinguish between these deceptive misstatements and the concealment that occurred in this instance. The dissent argues that the balancing approach applied by the majority is erroneous because that balance would justify a rejection of warning about the right to counsel and because the majority incorrectly applied the test—the balance on the side of the suspect should be (had previously been) weighed as the individual interest in liberty threatened by deceptive practices. The dissent argues further that under ordinary agency law, the deception of the attorney was akin to deception of her client,

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and ordinarily Ds are entitled to truthful answers from the police, and thus D should be entitled to the remedy he would have if he had been lied to directly. The dissent also criticizes the majority for suggesting that the police have the authority to deny counsel the ability to see their clients.

The burden of establishing a valid waiver depends on two factors:o The waiver standardo The burden of persuasion

Colorado v. Connelly – Court held that the state need only prove waiver by a preponderance of the evidence

Stevens dissent in Moran seems to assuming that lying to the suspect himself would be impermissible, but perkins plainly permitted lying to the suspect

Relationship between police deception and Miranda waivers is complexo Miller v. Fenton – valid Miranda waiver when detecting assumed a friendly and

understanding tone throughout the interrogation and repeatedly assured the suspect that he was sympathetic to him and wanted to help him unburden his mind

Detecting also gave certain factual information which was untrue (that victim was still alive)

Theme throughout interrogation was that whoever committed crimes needed help Moran Court found that waiver was made knowing and intelligently—analysis may depend on

how define those wordso Could argue that no police station confessions are knowing or intelligent in the ordinary

sense of those words because a well-informed suspect would almost certainly keep quiet Some have argued that suspects should be given a nonwaivable right to consult counsel before

questioning takes place because this is the only way to prevent waivers based on ignorance If a suspects invokes the right to counsel, but then re-initiates conversation with the police, the

same waiver standard applies as that listed in Moran There are now essentially two Miranda standards

o Edwards Standard – After Invocation, a waiver is impermissibleo If no invocation and Miranda has been given, waiver standard leans in favor of police

Remedies for Miranda Waivers (FOPT)Overview

Not properly considered FOPT cases – do not analyze under FOPT (Breyer wants to, but nobody else)

o Miranda warnings are not constitutional rights, they are procedural safeguards intended to protect

constitutional rightso Thus can violate Miranda (and that is a violation of Miranda), but that is not a violation of

the 5th amendmento The warnings provide more protection than Constitutiono Maybe that there can be a violation of Miranda that does not violate Constitution

Process for remedies for Miranda issueso Were Miranda warnings given?o If no Miranda

Statements are fruit of poisonous tree and must be excluded Consider whether statements were violation of 5th amendment—

if initial statements were voluntary, then don’t lose stuff downstream If initial statements were not voluntary (violate 5th amendment), then lose

downstream evidence It is not obvious how this fits with Seibert and Patane; these cases suggest that

more might play into the calculus—might also consider whether evidence is physical evidence or testimonial evidence; might also consider whether Miranda warnings could have been effective, etc.

Elstad

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o Cops go to Elstad’s house to arrest for burglaryo Cop asks Elstad question, have quick exchange, and kid implicates himself

This is a violationo Take kid to station, give him warnings, kid confesses

S Ct decides unwarned statement must be excluded, but subsequent statement there is no violation

Seiberto Won’t apply traditional FOPTo Don’t just suppress unwarned statement as Elstad suggests, but in some situations will

also suppress downstream evidence In determining whether to suppress downstream statements, consider whether

Miranda warnings were fully effective Patane

o Similar to Seibert except downstream evidence was physical fruito Statements must be suppressed, what about downstream physical evidence

Would meet FOPT requirements (not attenuated) Physical fruit not suppressed – 5th amendment designed to protect against

testimonial evidence, not physical evidenceo Seems to create perverse incentives that were attempting to shut down in Seibert—police

don’t need statements if can get physical evidence

Missouri v. SeibertD’s son had cerebral palsy and died. D feared charges of neglect because the child had bedsores on his body. D then plotted to burn down her house so that police would not find out. She planned to leave a mentally ill teenager in the house to avoid any appearance that her son with cerebral palsy had been left unattended. Several days after the incident police awoke D at the hospital and questioned her without giving her Miranda warnings. She confessed. She was then given Miranda warnings; the officer obtained a waiver and a confession from her. The trial court declined to suppress the post-warnings statements because by that point the warning had been given. The Supreme Court of Missouri reversed.

The Court concludes that the second statements should be suppressed. The Court holds that in cases of sequential confession, the threshold question is whether in the circumstances the Miranda warnings could reasonably be found effective—i.e. could the warnings effectively advise the suspect that he had a real choice? And could the warnings reasonably convey that the suspect could choose to stop talking even if he had talked earlier? If yes, then the Miranda analysis precedes normally, but otherwise the evidence must be excluded. The Court argues that the justification for this ruling is that a suspect could hardly believe his Miranda warnings if they were given to him just after making a confession. This inquiry is highly fact bound, it will include at least—the completeness and detail of the first round of questioning, the overlapping content of the two statements, the timing and setting of the first and second questioning, the continuity of police personnel, and the degree to which the police treated the questioning as continuous. In this case, the Miranda warnings could not be effective because the questioning was continuous and the police did not advise the woman that her statement coiuld not be used (though this statement would not be dispositive).Breyer – Rule should be that exclude the “fruits” of initial unwarned questioning unless failure was in good faithKennedy – Whether Miranda should be enforced depends on a consideration of whether suppressing evidence would serve the legitimate interests promoted by Miranda and whether admission of evidence would frustrate Miranda’s central concerns and objectives. The implication of this is that statements should not be excluded if the statement given before the Miranda warning was brief. In this case, the Miranda objectives are served—deterring improper police conduct and the Fifth Amendment goal of assuring trustworthy evidence.

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Suggests that should conduct ordinary FOPT analysis—if the first statement is shown to be involuntary, the court must examine whether the taint dissipated through the passing of time or through changed circumstances.

United States v. Patane – Physical evidence obtained from unwarned testimony is admissible at trial.D was arrested for harassing his ex girlfriend; he was then let out and violated his restraining order by trying to call her. When officers began to investigate, they learned from the ATF that D was a convicted felon with a firearm. Detectives then went to D’s residence. They attempted to advise him of his rights, but he cut them off. They asked him about the gun, and he eventually told them where it was. D then moved to suppress the physical evidence on the basis that it was the fruit of an unwarned search.

The Court holds that a failure to give Miranda warnings does not necessitate the exclusion of physical evidence at trial. The Court argues that the Miranda warnings are not Constitutionally required, but rather are a means of protecting against the 5th amendment right against self incrimination; however the right of self incrimination does not suggest the exclusion of non-testimonial evidence obtained as a result of voluntary statements. The Court argues further that because the Miranda rules sweep beyond the requirements of the Constitution, any further extension of the rules must be justified by the protection against compelled self-incrimination. The Court argues that an extension of the rule is not justified here because police conduct violating Miranda is already deterred by the suppression of testimonial evidence.Kennedy – Exclusion of physical evidence cannot be justified by a deterrence rationale sensitive to both law enforcement interests and a suspect’s right during in-custody interrogation. Admission of non-testimonial physical fruits does not run the risk of admitting into trial an accused’s coerced incriminating statements and thus is not required by the 5th amendment.

Dissent expresses concern about the need for deterrence that would justify FOPT for physical evidence obtained from statements made without a Miranda waiver. The Court suggests that failing to suppress physical evidence will give officers an incentive to ignore the Miranda warnings when they think that they may uncover physical evidence. The dissent argues that the 5 th amendment does protect against admission of this evidence because a Miranda violation raises a presumption of coercion, and the 5 th Amendment privilege against compelled self-incrimination extends to derivative evidence. Breyer – Thinks that FOPT standard for derivative physical evidence should hinge on whether evidence was collected in good faith.

Kennedy’s positiono In Seibert – finds statements inadmissible because the Miranda violation was intentional

and the police took no steps to cure ito Patane – position harder to understand; adopts plurality’s rule, but seemingly without the

plurality’s rationale (recognizes less importance for physical evidence)o Unclear how Kennedy would vote in a case that involved an intentional violation and

physical evidence

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