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Criminal Investigations – Anne CoughlinSpring 2015 Outline

INTRO SEARCHES & SEIZURES

I. Background:a. The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

b. Boyd v. United States (1886)—suggests right to “privacy” in Fourth.

c. In England & Colonial America, even if there were found to be a breach to this right, the remedy was usually suing for trespass.

II. The Exclusionary Rulea. Mapp v. Ohio (1961)

i. Weeks v. United States (1914) held that evidence gathered in violation of 4th Am. must be excluded from use in trial

ii. Wolf v. Colorado (1949) refused to apply rule to states, but this case overturns that.

iii. 4th Amendment is implicit in the concept of ordered liberty, and its protections would be hollow without the exclusionary rule

iv. Black concurrence: combination of 4th Am. rights & 5th Am. right against self-incrimination create the exclusionary rule (this view now considered plainly wrong).

b. Exclusionary rule is a remedy, but also a prophylactic. Reasons to have it:

i. Otherwise invites police to violate 4th Am. (if it’s only Federal—the FBI would do work and then ask state police to do the sting).

ii. “Imperative of judicial integrity.”iii. Deter violations

c. It punishes prosecutors more than police, technically.d. Other possible remedies:

i. Civil suits for damages (damages would be low, nominal)—has all the qualified immunity, etc. of 1983

ii. Injunctions—hard because of Los Angeles v. Lyonsiii. Criminal prosecution—rare

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iv. Administrative/political remedies—train police better

III. Searchesa. Katz v. United States (1967)—wiretap of public phone IS a

searchi. DO YOU HAVE A (constitutionally-protected)

REASONABLE EXPECTATION OF PRIVACY?ii. 4th Am. protects “people,” not places or things.iii. Phone booth with door closed is an objective

manifestation of a socially recognizable and reasonable expectation of privacy, and Katz relied on that privacy.

iv. Lack of physical penetration does not matter.v. Harlan concurrence, with a little more focus on

location, becomes the majority view:1. 1) Did person expect privacy?2. 2) Does society consider that expectation of

privacy reasonable?vi. THEME: Court afraid of technology

b. United States v. White (1971)—police wearing a wire is not a search

i. Applies Katz—no reasonable expectation of privacy when you tell other people things (and they turn out to be undercover police)

ii. People talk to “friends” at their own risk.iii. Hoffa and Lewis (1966)—pre-Katz cases that say

police may use informants; suspects trust others at own risk.

iv. Four levels of listening to conversation (no difference for Court):

1. Faithless friend—Hoffa2. Unbugged agent—Lewis3. Bugged agent with recorder—Lopez4. Wired agent who records & transmits—White

c. California v. Greenwood (1988)—No reasonable expectation of privacy in curbside garbage—not a search.

i. Everyone knows that raccoons, children, scavengers, and snoops regularly go through people’s trash

ii. It is “knowingly exposed to the public.”iii. (Also—it is willingly given to a third party)iv. Brennan dissent reads Katz more broadly to cover

what a person seeks to preserve as private (in opaque bags) even when in area accessible to public.

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d. Oliver v. United States (1984)—open fields doctrine—not a search.

i. Police trespass on property with “no trespassing signs,” find marijuana growing one mile from house.

ii. No privacy protection for stuff visible on private land.

iii. See also Thornton—same idea.e. United States v. Dunn—4-factor test for curtilage:

i. Proximity of area claimed to be curtilage to actual home

ii. Whether place is included within enclosure surrounding home

iii. Nature of the uses to which area is putiv. Steps taken by resident to protect area from

observation by passers-byf. California v. Ciraolo (1986)—no privacy right in (fenced-

in) stuff visible from fixed-wing aircraft at 1000 feet.g. Florida v. Riley (1989)—police helicopter peering into

partially-open greenhouse is not a search.i. Plurality thinks Ciraolo dispositive for all aircraft

ii. Altitude of craft only matters if it’s in airspace public could legally occupy (i.e.—not so low that it bothers property). 400 feet okay.

iii. O’Connor’s controlling concurrence: there is difference between ground-level and aerial surveillance, but Riley did not have reasonable expectation that public would not fly choppers over his house at 400 feet, so he has no privacy!

iv. Note—pegs privacy to SAFETY regulations by FAA.v. Dissents: be realistic—how often does the public

hover choppers at 400 feet above private homes.h. Bond v. United States (2000)—border patrol groping bags

IS a search because of physical/tactile invasion of property, also people don’t usually do that—TACTILE observation is more intrusive than visual search and greater expectation of privacy.

i. United States v. Place (1983)—dog sniffs at airport NOT a search because smell of bags not hidden from public view

j. Illinois v. Caballes (2005)—dog sniff of car (more extensive than Terry search for weapons) pulled for speeding okay depending on whether it extends length of stop or not.

k. United States v. Karo (1984)—beeper taken into house IS a search.

i. United States v. Knotts (1983)—attaching beeper to drum barrel sold by agents to suspect not a search—

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no expectation of privacy as to road movement on public street; okay to sell/give person a tracking device without buyer’s knowledge.

ii. BUT it IS a search to use tracking device to find information not otherwise plainly visible (like how long a barrel is in a house).

l. Kyllo v. United States (2001)—Thermal imager scan IS a search.

i. Police suspected Kyllo of using heat lamps, so they thermal image scan house—use that to get warrant for search of house.

ii. RULE: It’s a search when government uses technology not in general public use to get info that would be unknowable without physical intrusion.

iii. Does not matter that heat emanated from house—detecting presence of lamps could not have otherwise been done without physical intrusion into constitutionally protected area.

iv. HINTS AT bringing back physical intrusion rule!v. TECHNOLOGY! Be afraid!

m. United States v. Jones (2012)—Attaching GPS tracker to car IS a search—Brings back physical intrusion (on const. protected area) rule!

i. Combined act of placing tracker and using it was a search.

1. When Government physically occupies private property for purpose of obtaining information, it’s a search—WHAT ABOUT TRESPASSES IN OLIVER? Court says that’s different because open-fields not a “constitutionally protected area.”

ii. Katz only added to what’s a search, did not displace old physical intrusion rule.

iii. Alito & Liberals concurrence in judgment: Just use Katz and Jones had reasonable expectation of privacy. Don’t tack privacy to 18th-century tort law of trespass—creates weird issues.

iv. Policy: both sides concerned about increasingly cheaper & easier digital surveillance

n. Florida v. Jardines (2013)—O hai doggyi. Police may not trespass on constitutionally-

protected curtilage in order to search (like by using a dog or other sense-enhancing technology)—that would be a search. WHY WERE POLICE THERE? Bringing along “searching technology” is a dead giveaway.

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ii. AS OPPOSED TO police MAY “trespass” on home to knock on door and ask questions—knock and talk—just like any person can knock on your door before you tell them to go. Kentucky v. King (2011)

iii. “That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.”

iv. Dissent—so long as we’re pegging trespass to old law and what the public is traditionally allowed to do—since when was it illegal to go on someone’s yard with a dog?

v. COMPARE AGAINST Terry stop cases where police intent does not matter.

IV. Seizuresa. United States v. Drayton (2002)—several police on bus

NOT a seizurei. Two police stood over Drayton’s buddy, arrested him

for possession, then stood over Drayton and asked if they could search him. He said consent was not voluntary.

ii. Bus searches are generally allowable, and nothing to indicate to a reasonable (innoecent) person that he was free to decline search.

b. Florida v. Bostic (1991)—“A seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free to disregard the police officer and go about his business, the encounter is consensual.”

c. Has a seizure occurred? United States v. Mendenhall (1980) factors:

i. Threatening presence of several police officersii. Display of weapon by officers (not merely having

one)iii. Physical touching of person of the citizeniv. Use of language/tone of voice indicating that

compliance with officer request might be compelledv. (IS THIS GOOD LAW ANYMORE?)—It IS

d. Brower v. County of Inyo (1989)—Brower was “seized” when road block made it impossible for him to get through road or even stop without getting hurt—“terminates freedom of movement.”

e. California v. Hodari D. (1991)—police chase NOT a seizurei. Police must have some control over a person or a

complied-with “show of authority” to have seizure.

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ii. Weakens Mendenhall, requires more physicality to a seizure.

iii. Now test is:1. Physical force to body of suspect to restrain

movement OR2. Official show of authority that communicates

to a reasonable person that he/she is not free to terminate encounter; to which the suspect submits

iv. So Hodari wasn’t seized because he did not submit himself to seizure of chase, even if it was a show of authority.

v. Whereas if police touch you with purpose of trying to hold you down, even if you wriggle free, that’s still a seizure.

WARRANTS

V. Intro Warrantsa. Reason for warrants:

i. Judges after-the-fact may be biased if incriminating evidence found

ii. Police may testify falsely in trial—this pre-empts thatb. Require oath or affirmation (Whitley, Franks are cases)c. Magistrate must be “neutral and detached” (Coolidge,

Gonnally, Shadwick are cases). Need not be a lawyer for small ordinance violations, shouldn’t be paid for granting warrants.

d. Warrant must meet particularity requirement—enough to permit an officer “with reasonable effort to ascertain and identify the place intended.” Steele v. United States (1925).

e. Wilson v. Arkansas (1995)—must knock and announce before executing warrant of home unless reasonable cause not to do so.

f. Hudson v. Michigan (2006)—failure to knock/announce does NOT trigger exclusionary rule—just get civil damages.

VI. Meaning of Probable Causea. Probable cause exists when the facts and circumstances

within the officer’s knowledge and of which they had reasonably trustworthy information are articulable and sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed.

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b. Spinelli v. United States (1969)—NO LONGER GOOD LAWi. Rejects totality of the circumstances test for

whether a tipster is reliable.ii. Rather, look to “a more precise analysis” of

information in tip that shows informant’s reliability and basis of knowledge.

iii. Merely describing Spinelli, saying that he would travel between states, and that he was involved in bookmaking—not enough!

iv. Two prongs:1. Basis of knowledge (how did informant come

upon info)2. Veracity/reliability of report.

c. Illinois v. Gates (1983)—Mr. Gates flies down to Florida, drives back up with Mrs. Gates—anonymous tipster claims it’s for drugs, so police bust car once they observe that behavior.

i. Indirectly overturns Spinelli—courts SHOULD look to totality of circumstances to see if tip was reliable—Spinelli factors are just useful in determining that but if one is strong and one is weak, tip may still be okay.

ii. Court actively encourages case-by-case, highly technical analysis of each individual tip to see if it’s reliable.

d. Draper v. United States (1958)—Describing particular future facts (he’ll get off train at this hour carrying a brown suitcase) plus accusation of crime is enough. Rule: Even where there is no factual basis for evaluating the accuracy of a conclusion that criminal activity is taking place, such a deficiency can be overcome by the detailed nature of an informant’s report combined with corroboration of those details by the police.

e. What do police need probable cause OF?i. Arrest: that defendant committed a crime

ii. Search: that they will find evidence of a crime in place being searched

f. Standard does not vary based on seriousness of crime.g. Probable cause determination must be reviewed de novo,

with practical deference to police, but not to judges—Ornelas v. United States (1996)

h. Bailey v. United States (2013)—in supplement, on page 33 of notes—NO IDEA what it says

VII. Exceptions to Warrant Requirement—Exigent Circumstances

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a. Shots fired: Mincey; Hot pursuit: Hayden; Destruction of evidence: Vale, Welsh, and King; Community caretaking: Brigham City; Cars.

b. Mincey v. Arizona (1978)—police run into house after deal goes bad and officer shot (definitely okay); but not investigatory team who occupy apartment for 4 days after incident.

i. Like in Terry, a warrantless search must be “strictly circumscribed by the exigencies which justify its initiation.”

ii. Exigency search must end when the exigency ends! c. Warden v. Hayden (1967)—fleeing suspects are exigency—

see armed suspect run into housei. Looking in drawers, etc. okay because guns could be

thereii. When looking in laundry machine “for man or

money”—NOT OKAY because man cannot fit in laundry machine and money not within scope of exigency. But if actually looking for weapons, yeah that’s fine. And court willing to say that search in laundry machine was probably actually for weapons.

iii. WHEN DO POLICE NEED TO STOP SEARCHING FOR WEAPONS HERE?—Answer—depends on how exigent the exigency is? Remember this is distinct from search incident to arrest.

d. Police-created exigency? Must show “deliberate conduct on the part of the police evincing an effort intentionally to evade the warrant requirement.” I.E.—merely showing up as the police, yelling, etc. doesn’t count

e. Destruction of evidence cases:f. Vale—police need grounds to believe evidence in process

of being destroyed. Since police had probable cause ahead-of-time that Vale was drug dealer, should have included drugs on warrant, which they did not. OLD CASE.

g. Welsh v. Wisconsin (1984)—drunk driver stumbles away from wreck and walks back to his home

i. Warrantless arrests in the home require probable cause plus exigent circumstance—Payton v. New York (1980)

ii. By sobering up, Welsh was destroying evidence BUT lack of seriousness of crime means no exigency.

iii. Stanton v. Sims (2013)—Welsh seriousness of crime factor does not apply to hot pursuit cases.

iv. Missouri v. McNeely (2013)—Destruction of evidence will usually apply for drunk drivers taken

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in who refuse blood test BUT no per se rule for it—police should try to get warrant, which is now easier and faster than before.

h. Kentucky v. King (2011)—police think fleeing suspect is in wrong upstairs apartment, but they smell marijuana smoke coming from it, knock, hear shuffling noises inside, bust down the door. That’s okay.

i. Police just need reasonable belief that evidence is being destroyed.

i. Safety of suspects/third parties as exigency: Brigham City v. Stuart (2006)

i. Police may enter home without warrant if they have an “objectively reasonable basis for believing that an occupant is seriously injures or imminently threatened with such injury.”—Emergency Aid Doctrine expanded beyond “unconscious, semi-conscious, or missing person.”

ii. Does not matter whether police entered home to make arrest or rescue, so long as entry is justified.

iii. Seriousness of conduct factor from Welsh does NOT apply

j. Ryburn v. Huff (2012)i. Police arrive at Huff house after reports of kid

writing threatening letter at school. Mom and kid come out, mom runs in after being asked “are there guns in house?”

ii. Police entering house running after her IS based on reasonable belief that entry necessary to avoid injury to themselves/others.

VIII. Plain View Exceptiona. The rule:

i. Police are lawfully in place where they can view item

ii. And are lawfully in place where they can gain custody over it

iii. Must be immediately apparent to police that item is subject to seizure

iv. Items discovered inadvertently (not required anymore—after Horton)

b. New York v. Class (1986)—police pull car, want to check VIN, have to move papers aside—find gun under papers. Since no expectation of privacy in VIN location that’s supposed to be visible, that’s not a search.

i. HOW DOES THIS FIT INTO PARTS OF RULE 2 AND 3? VIN is not subject to custody or seizure.

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ii. Now I get it—because police had the right to enter car to move objects around to see VIN, the officer is therefore legally in a place where he can see/grab weapon.

c. Arizona v. Hicks (1987)—police in Hicks’s apartment to find shooter, injured people, and weapon.

i. While there, police notice really fancy stereos, and move them around to look for serial numbers.

ii. Incriminating nature of property not immediately apparent so:

iii. That was a search requiring probable cause, which officer did not have.

iv. Court rejects O’Connor dissent suggesting it be considered a “cursory inspection” instead of a “full-blown search” a la Terry.

d. Horton v. California (1990)—Inadvertence not necessary element of plain view seizures, just helps determine whether really plain view.

IX. Cars don’t need warrants—The Automobile Exceptiona. United States v. Carroll (1925)—established the

automobile exceptionb. Chambers v. Mahoney (1970)—doesn’t matter that police

arrested suspect and took car back to station before searching it—they COULD have searched it on highway without warrant (contrast to a few other cases where if you can get a warrant, you should).

c. United States v. Chadwick (1977)—Can’t search padlocked footlocker seen being placed in car—greater privacy expectation

d. BUT United States v. Ross (1982)—Because police believe Ross is selling drugs out of car, and they see him get in car after putting bag in trunk, they may search because “entire car” was source of probable cause to pull him.

e. AND THEN California v. Acevedo (1991)—almost entirely overrules Chadwick

i. Police think Acevedo storing drugs in HOUSE, wait for him to come out, put bag in trunk of car, stop car and search the trunk.

ii. Court says: so long as there’s probable cause to search the car (enough to be able to get warrant for the whole car—that is, that the car is carrying contraband somewhere in it), can go ahead and search the whole car and any bag within so long as the object could be there (so—can’t rip up seats to look for body or rifles, but yes for drugs).

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iii. A low-point of the Court caring about warrants as a formality.

f. California v. Carney (1985)—mobile homes are automobiles.

g. Wyoming v. Houghton (1999)—may search effects of passengers in car.

i. Driver Young has syringe in front pocket, everyone ordered out of car.

ii. Court applies reasonableness test, says it IS reasonable to search personal effects of passengers.

iii. Court distinguishes from:iv. United States v. Di Re (1948)—police may not

search person of a person pulled over (what about Terry?)

v. Ybarra v. Illinois (1979)—warrant to search bar does not extend to patrons.

h. Reasoning for automobile exception and ability to take car back and search later:

i. Police safety—waiting with car on side of road may not be safe

ii. Practical/Logistical concern—can’t waste police resources waiting with car or even searching it thoroughly at time of stop

iii. Reality—if can search car at time of pullover, why not later?

iv. Ancillary to inventory exceptionX. Arrests

a. Arrests are themselves already a big privacy invasion BUT general exempt from warrant requirement because of historical power to arrest on streets.

b. United States v. Watson (1976)i. Federal statute said warrantless arrests for stolen

credit cards okay so long as probable cause.ii. Police informant told by Watson that he had stolen

credit cards, police came in and arrested him—he did not have any on person, so they searched his car.

iii. That search was NOT incident to an illegal arrest.c. Payton v. New York (1980)—May not enter home for

purpose of warrantless arrest, BUT may use arrest warrant to get into house and then do search incident.

d. County of Riverside v. McLaughlin (1991)—can’t hold someone for more than 48 hours without a judicial determination of whether his arrest met probable cause standard.

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e. Steagold v. United States (1981)—Police have warrant for Lyons arrest, go to Steagold’s house where they think he is, don’t find him but do find drugs. Conviction overturned b/c:

i. Lyons had privacy interested in not being arrested (nullified by warrant)

ii. Steagald had privacy interest in not having house searched (NOT nullified by anything!)

f. Atwater v. Lago Vista (2001)i. Police MAY arrest someone without a warrant for

minor criminal offense punishable only by a fineii. Broad deference to police for determining whether

arrest necessary, but also they can’t be expected to know what crimes carry jail time!

iii. Based on a lot of old history & ability to arrest people.

iv. Police g. Whren v. United States (1996)—Police officer motive for

making traffic/Terry stop irrelevant so long as reasonable suspicion.

h. Virginia v. Moore (2008)—arrests just need to be reasonable, they do not need to conform to state law arrest limitations (Virginia law required summons before arresting for driving on suspended license).

i. Florence v. Burlington County (2012)i. Florence fell behind on payments, warrant issued for

arrest, he then paid, but remained in state warrant database—he was arrested 2 years later, spend one week in prison and was subjected to strip searches.

ii. No independent right to not be searched after wrongful arrest.

iii. Extends Atwater—doesn’t matter seriousness of crime either.

iv. Plurality thought case might be different (no reason to search) had he not been admitted into general prison population (which justifies search for contraband)

v. I’M NOT SURE HOW THIS CASE IS USEFUL TO CLASS

XI. Search Incident to Arresta. Scope of a Permissible Search Incident to Arrest

i. Suspect’s person (including pockets) ANDii. “Immediate Control” – Chimel – Officer may search

within the “grabable space” of the suspect. Rationales: (1) Officer Safety; (2) Destruction of Ev.

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iii. Contemporaneous to the arrest (Chadwick – where agents seized footlocker but did not open it until an hour after arrest)

iv. Including containers (Robinson)v. Automobile: (1) Passenger compartment if evidence

relating to crime could be found; (2) Grab space if contemporaneous with arrest (Gant)

vi. Rationale:a. Avoid attackb. Preclude destruction of evidence of the

crime for which arrest is madeb. Traditional power to search person upon arrest,

acknowledged in Weeks v. United States (1914)c. Chimel v. California (1969)

i. Warrant to arrest Chimel, so police wait with his wife at house for him to get home. He says no to search of house.

ii. Police DO have right to search person of arrestee AND anything within his immediate control—arm’s reach.

iii. May not search entire house automatically—would give police incentive to use arrest warrant for everything.

d. United States v. Robinson (1973)i. Pulled over when police have probable cause to

believe he’s driving on suspended license—ordered out of car and arrested.

ii. Search person, find cigarette package, open it up and there’s heroin inside.

iii. Police ALWAYS have right to search person of arrestee. Do not need to question. AND to search containers on the person.

e. Maryland v. Buie (1990)—police may do “protective sweep”—cursory, non-intrusive look—of building where person is arrested, for safety—only really places where people could be hiding.

i. Area must be “immediately adjoining” place of arrest.

ii. There must be articulable suspicion that area swept harbors individual who is danger to police.

f. New York v. Belton (1981)—custodial arrest of occupant of automobile also gets police search of passenger compartment of automobile—NOT REALLY GOOD LAW ANYMORE!

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g. Thornton v. United States (2004)—even if arrestee is handcuffed in cop car, may still search his car. BUT THEN:

h. Arizona v. Gant (2009)i. Gant handcuffed in police car, search of his car finds

gun & drugsii. Belton does NOT apply to interior of car after

arrestee secured.iii. Search incident to arrest only applies to area within

arrestee’s controli. Riley v. California (2014) (and companion case Wurie)

i. Police need independent probable cause (and probably warrant) to search content of cell phone/smart phone of arrestees

ii. Follows Chimel—search incident to arrest goes to preserving evidence and officer safety in area of control of arrestee.

iii. Government interest in preserving evidence easily controlled whereas

iv. TONS of privacy interest in phones—they have your whole life on them.

v. Why not Third-Party doctrine? Because a) police aren’t going to third party, b) they don’t know what they’re looking for, and c) physical analog is not bank records, but rather safety deposit box.

REASONABLENESS

XII. Terry v. Ohio (1968)a. Before: Camara v. Municipal Court and See v. City of

Seattle (1967)—balance to determine whether warrantless entry into property is allowable for safety and health regulations—determine whether it’s reasonable.

b. Officer saw Terry standing near store, maybe scoping it out for a robbery, so walked up, temporarily seized him, and searched for weapons via a frisk.

c. Separates warrant and reasonableness within Fourth Amendment.

d. Arrests require warrants or probable cause + exception.e. Other types of seizures just need to be reasonablef. Balance the need to search/seize against invasion on

privacy.g. Harlan concurrence: police must have some grounds to

stop—reasonable suspicion

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h. Historical context: increasing crime while vagrancy laws (which gave police probable cause to arrest whomever they wanted) being struck down.

i. Case rests on some idea of (strength of) reasonable expectation of privacy

j. Dunaway v. New York (1979)—taking Defendant to police station, saying he’s not under arrest, but blocking his path if he tries to leave IS an arrest

k. Many other cases defer greatly to officer safety as justification for stops.

l. Mechanics of frisk—must be a cursory inspection for weapons only (anything else found can lead to probable cause for arrest).

XIII. Justification for Reasonable Suspicion?a. Needs to be more than inkling/hunch/gut feeling—police

must articulate facts from narrative leading to conclusion that person is involved in crime AND armed.

b. Florida v. J.L (2000)—anonymous tips need indicia of accuracy—no “bare bones” tips

i. Caller says that young black man in plaid shirt standing at bus stop is carrying a gun, so police go frisk him, find gun.

ii. Distinguished from Alabama v. White (1990) because tipster there accurately predicted Defendant’s movements.

iii. This case merely observes something anyone in public could see.

iv. Remember—the SEIZURE is illegal—if JL had been properly stopped, they could frisk for weapons.

c. Navarette v. California (2014)i. Very close case—woman calls 911 to say silver truck

with certain license plates ran her off the road.ii. That’s enough basis of knowledge that driver may be

drunk—first-hand account of incident plus “future movement” prediction.

iii. Very strong Scalia dissent: anybody can observe a car and its direction; police actually found the OPPOSITE of what the lady said once they found the car—it was driving safely.

d. Illinois v. Wardlow (2000)i. Police patrolling high-crime neighborhood—see guy

run away—corner him and frisk him, find gun.ii. Use TOTALITY OF THE CIRCUMSTANCES to see if,

from point of view of officer, there was reasonable suspicion to stop Wardlow.

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iii. Combination of being in high-crime area, running away, even if each not enough by themselves to justify search, may justify.

iv. Since there are both guilty and innocent reasons to run, no per se rule can apply.

XIV. Police Discretion in Stopsa. Whren v. United States (1996)—police motive/pretext for

stop is irrelevant and should not be considered by courts. Case where DC police pull SUV in high-crime area over for stopping too long at light and then turning without signaling.

i. Neither does it matter that police violated department policy of only pulling people over for minor traffic infractions when police determine they pose threat to public safety.

b. Hiibel v. Sixth Judicial District Court of Nevada (2004)—upholds stop-and-identify laws. So long as police have sufficient suspicion to stop a person, they may demand identification since that’s a minimal extra intrusion on privacy (If stop not based on reasonable suspicion, police may not arrest for violating stop and identify statute—Brown v. Texas (1979))

c. Chicago v. Morales (1999)—strikes down modern vagrancy/riot act laws

i. City ordinance: when police see a group of people (at least one of whom is a known gang member) loitering with no apparent purpose, police must tell them to disperse. If they do not, police may arrest.

ii. Law is facially vague—no mens rea requirement—entirely up to police to decide if people are loitering with or without purpose?

iii. Legislatures must establish minimum guidelines to govern law enforcement.

iv. O’Connor/Breyer controlling concurrence—if there were a mens rea element of harmful purpose, then loitering law would be okay.

v. Different from traditional void for vagueness (for not giving notice to public), this one’s vfv for not giving police directions!

vi. Dissents: appeal to both history and public policy—police need to broadly keep public peace.

XV. Special Needs (for suspicionless searches)a. New Jersey v. TLO (1985)—searches of student bags at

school sometimes okay—depending on reasonableness under all the circumstances. This search for cigarettes was okay.

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b. Early roadblock cases:i. United States v. Martinez-Fuerte (1976)—permanent

checkpoint at Mexican border okay due to strength of government need and reduced expectation of privacy

ii. Delaware v. Prouse (1979)—no random searches to check license and registration.

iii. Michigan v. Sitz (1990)—YES to ALL cars (not random) being stopped for drunk driving checkpoint. Magnitude of issue/relationship to maintaining road safety matter.

c. Indianapolis v. Edmond (2000)—no checkpoints for general law enforcement investigation

i. Very strict system for which cars are stopped, warning ahead-of-time that narcotics search stop ahead, and relatively high yield of contraband found.

ii. BUT not enough to overcome PRESUMPTION AGAINST suspicionless searches—only exceptions are for special needs.

iii. Primary purpose of the stop matters! Collecting evidence for general law enforcement not okay.

iv. Amazingly, Scalia/Thomas go the other way, claim based on case law (Sitz), even though original public meaning would bar this.

d. Illinois v. Lidster (2004)—stops for general law enforcement may be okay if purpose is to solve a specific crime and not nab people generally

i. Bicyclist killed in hit-and-run so police set up checkpoint neat same location and time of day one week later—very brief stops to ask people if they have information and hand out flyers.

ii. Lidster almost hit cops while stopping and had booze on breath—plainly visible, gave probable cause for arrest.

iii. This Court cares about balancing—importance of solving crime is high and intrusion on liberty small. Also compare this type of roadblock to police legitimately stopping pedestrians to ask questions—they can say no thank you and go on their way.

e. All this is very strange part of Fourth Amendment law—where police get LESS power/discretion when doing community policing and MORE ability to do random searches when solving specific investigations.

XVI. Maryland v. King (2013)a. State MAY swab check and gather DNA of people arrested

for violent crimes.

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b. Court says it’s definitely a search and it’s definitely suspicionless but: balancing “special law enforcement needs” against “diminished expectations of privacy” and “minimal intrusions”—it’s REASONABLE!

c. Not clear what standard of review is, but Court finds legitimate government interests (identifying arrestee for safety, flight risk, etc.)

d. And little intrusion on privacy—it’s like fingerprinting!e. Very vigorous dissent: this is just a random search to help

solve old crimes, arrestee absolutely has privacy interest in DNA, and it can’t possibly be for administrative/ID purposes since Maryland doesn’t process the tests for weeks—if following Edmond, the purpose of this search is clearly general law enforcement and must be invalid.

f. Ironically, Scalia points out—holding only affects the innocent, since parties stipulated that post-conviction DNA sampling would be okay.

XVII. To recap—the Six Fourth Amendments:a. Warrant based on probable cause (search of home, etc.)b. Probable cause plus exigencyc. Just probable cause—arrests and cars. Arrest also requires

McLaughlin hearing.d. Reasonable suspicion (may stop and frisk for weapons)e. No suspicion needed (administrative regulations and

checkpoints after interest balancing)f. (Consent)

XVIII. Reasonableness in Police Use of Force (not really covered in class)

a. Tennessee v. Garner (1985)i. Underlying crime for which person is being arrested

is not very importantii. Deadly force may only be used when “officer has

probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others.”

iii. Here, officer knew Garner was unarmed with back to him.

b. Scott v. Harris (2007)i. There is no “on/off” switch for deadly force (what

does that mean?)ii. Balance each case—here, risk to Harris’ person was

reasonable given the risk he was imposing on everyone else by driving like a maniac.

iii. Mirror image of Garner—minor underlying crime, but obviously dangerous behavior.

c. Graham v. Connor (1989)

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i. One of the most effed up fact patterns—police treat guy like crap.

ii. Police use of force must be analyzed to see if it was reasonable from point of view of officer on the scene—OBJECTIVELY REASONABLE—no room in calculation for police “malice” requirement.

XIX. Consent Searchesa. Schneckloth v. Bustamonte (1973)—no notice of rights

requirement when asking consent to searchi. Test is: TOTALITY OF THE CIRCUMSTANCES to

determine whether consent was freely given or coerced:

1. Knowledge of rights may be a factor2. Whether police are doing anything coercive...

ii. Fourth Amendment right not as formalized/core to fair trial as Fifth or Sixth Amendment rights.

b. Florida v. Jimeno (1991)—SCOPE OF CONSENT is whatever is “objectively reasonable” from officer’s point of view. Consent to “search the car” means everything, unless officer asked “may I search the trunk” or driver said “you may look in the glove compartment,” etc.

c. Early Third-Party Consent cases:i. Unlike trial rights (5th and 6th)—4th Amendment

rights can sometimes be waived by a third party!ii. United States v. Matlock (1974)—may have consent

of someone else with “joint access or control” to search property.

iii. Illinois v. Rodriguez (1990)—Police just need to “reasonably believe” that person has control over premises. Probable cause to believe.

d. Georgia v. Randolph (2006)—if one co-occupant says come in, other says go away—the refusing person wins.

i. Reasonableness—people have reasonable expectation that people they tell to get off property will go.

ii. Test is pegged to social expectations—what would a guest (as opposed to police) do in that situation?

iii. Very narrow—both occupants have to be physically present and expressing their choice.

e. Fernandez v. California (2014)i. Fernandez tell police to go away—they arrest him

under probable cause suspicion of assault. Come back an hour later, and Rojas who lives at house complies with search and consents.

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ii. Police may remove dissenting party and get around Randolph ONLY IF removal was justified—here it was.

iii. Objection to search should not linger because of social expectations—if the only present owner welcomes people in, you are welcome in!/Holding otherwise would create problems the narrow Randolph decision sought to avoid in domestic abuse cases.

THE EXCLUSIONARY RULE

XX. Good Faith Exceptiona. United States v. Leon (1984)

i. Police monitor house and cars, go to get warrant, execute it, find lots of drugs.

ii. Warrant later found to be based on insufficient probable cause BUT when police officers reasonably and in GOOD FAITH rely on a facially-valid warrant, the evidence found from it is NOT excluded!

iii. Purpose of exclusionary rule is narrow, logic here:1. Make police act better (not punish

magistrates)2. No evidence magistrates intent to

ignore/subvert 4th Am.3. No reason to believe exclusion would deter

bad-acting magistrate.iv. The exclusionary rule has costs, and here the

benefits do not outweigh those costs.v. Dissent: Exclusionary rule is REQUIRED by 4th

Amendment—not just to punish police but to protect people!

b. Illinois v. Krull (1987)—Good faith reliance on later-unconstitutional state statute authorizing searches.

c. Arizona v. Evans (1995)—Good faith reliance on bad warrant database.

d. Case in supplement—Good faith reliance on precedent (pre-Gant caselaw)

e. Herring v. United States (2009)—Good faith reliance on bad warrant database/police error!

i. 1) Exclusionary rule not an individual right; 2) extent of justification for rule varies based on culpability of law enforcement conduct; 3) police conduct must be sufficiently deliberate so that deterrence possible; 4) not all recordkeeping errors are immune to rule

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ii. Here, arresting officer’s county did due diligence, county that claimed to have warrant for arrest did not.

iii. Dissent: worry about judiciary sharing in Fourth Amendment violation when it allows illegal searches in as evidence. Electronic warrant databases are at core of law enforcement and police need incentives to keep them cleaned up.

f. Think about POLICY and CONLAW behind exclusionary rule.

XXI. Standing:a. Only a Defendant in criminal prosecution may claim

exclusionary rule—that is necessary, not sufficient.b. Passengers in cars do NOT have reasonable expectation of

privacy in other parts of car, so no standing to contest searches. But they can theoretically challenge their seizure (but usually so long as driver did anything wrong—there was probable cause to stop).

c. Jones v. United States (1960)—target of a search gets to claim right, regardless of where search occurred.

d. Rakas v. Illinois (1978)—gets rid of “target theory.” Passengers as passengers in car do NOT have reasonable expectation in privacy of vehicle they’re in.

e. Rawlings v. Kentucky (1980)—must have reasonable expectation of privacy in place searched (man who stuffed things into other person’s purse did not get to claim right over the purse.

f. Minnesota v. Carter (1998)i. Carter is guest of apartment—there with resident

bagging cocaine. Police come and peer through gap in blinds.

ii. Overnight guest in house DOES have right of privacy in room because of all the respect and protection that comes with having a place to sleep (Minnesota v. Olson (1990)), but temporary guest does not.

g. Just remember:i. First inquiry into Fourth Amendment cases—even if

it’s fact-dependent and looks like it’s on the merits.ii. It IS very fact-dependent!

XXII. Fruit of the Poisonous Tree Doctrinea. Wong Sun v. United States (1963)

i. Complicated facts, but basically—police running into Toy’s house, drugs they find there, and his admissions there are inadmissible, but that he leads police to other houses IS admissible.

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ii. But Wong Sun does not have standing to contest Toy’s illegitimate arrest.

iii. Toy has standing to challenge his arrest AND the fruits of it—the fruits found at Yee’s house, even if Yee does not have standing to challenge introduction of the same evidence (because the offensive search was against Toy, not Yee).

iv. Taint of illegal search can be washed away by time—even if entry into Wong Sun’s house was illegal, his voluntary statements at the police station days later are admissible.

b. Is evidence obtained BECAUSE of an illegal search? Two-step tort causation-esque question:

i. 1) Was illegal search the but for cause of finding evidence? Or was there an independent source/inevitable discovery?

ii. 2) If but-for met, “proximate cause” is: has the taint of the illegal search dissipated? Is the link between the illegal search and the evidence in question direct or attenuated?

c. Murray v. United States (1988)i. INDEPENDENT SOURCE doctrine applies to

evidence first obtained illegally but later obtained independently from activities untainted by original illegal search.

ii. Police are tracking van, see it pull up to warehouse, be unloaded. Suspects depart. Police open door and take peek into warehouse just to be sure there’s drugs inside.

iii. Police then get warrant based on evidence they already had before illegal search—that’s fine.

iv. DO need to prove that they would have sought warrant anyways even if illegal search had never occurred.

d. Nix v. Williams (1984) (Christian Burial Speech Case)—Inevitable discovery even though nearest search crew was a couple miles away from body.

XXIII. Miscellaneous Exclusionary Rule Doctrinea. Hudson v. Michigan (2006)—Exclusionary rule does not

automatically apply to evidence found with proper warrant but in violation of knock-and-announce wait period. Finding evidence is attenuated from the violation—which is meant to protect life and limb.

i. Court balances costs and benefits.ii. Liberals dissent on strict logic—if searches in

violation of knock-and-announce are per se

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unreasonable, and unreasonable searches are forbidden by the 4th Amendment, they must be excluded.

b. Impeachment: United States v. Havens (1980)—Evidence suppressed (in case in chief) as fruit of unlawful search MAY be used against Defendant who takes stand in trial to impeach his truthfulness (guy said he did not carry drug-laden t-shirt through customs, prosecution says he did and proves it).

i. But Illinois v. James (1990)—narrows Havens, calling an “exception,” does not apply its rule to non-defendant witnesses. Idea is that non-defendant witnesses have less incentive to lie on the stand, but really just White switching his vote.

c. Basic logic of extending/not extending exclusionary rule: will it deter behavior that violates the 4th Amendment?

THE FIFTH AMENDMENT

XXIV. Introa. Four elements of the Amendment:

i. No person (does not count corporations)ii. Shall be compellediii. In any criminal case (must incriminate person in

criminal case—extends to criminal investigation, but does not matter that may open speaker up to civil liability

iv. To be a witness against himself (must be testimonial—stuff in head)

b. At common law, confessions extracted by torture were admissible.

c. Pre Malloy v. Hogan (1964) (applying the Fifth to the states), federal courts could forbid interrogation methods if they violated due process.

d. Massiah v. United States (1964)i. Massiah was indicted and then released out of

custody, but criminal investigation into drug importing continued.

ii. False friend got Massiah to talk about drugs in car that was bugged—Court held it violated 6th Amendment because police “deliberately elicited” “incriminating words” in absence of attorney.

iii. Dissent saw this as the Mapp for the 6th Amendment and was worried.

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e. Escobedo v. Illinois (1964)—right to counsel while being interrogated may be invoked moment you are arrested. If police ignore the request AND do not positively inform suspect of right to remain silent, any questioning they do is in violation of the 6th Amendment: the pre-Miranda

XXV. Miranda v. Arizona (1966)a. Custodial interrogation is inherently coercive (because of

police tactics like good-cop, bad-cop) and risks Fifth Amendment violation, so:

b. Police must inform suspect of:i. Right to remain silent

ii. Any statement may be used as evidence against himiii. Right to presence of attorney (5th Amendment right,

somehow).iv. Either retained or appointed.

c. Defendant may waive rights—must be voluntary, knowing, and intelligent. Waiver must be explicit—saying nothing (and then confessing) is NOT waiver. At trial, burden is on government to show suspect waived rights.

d. If at any stage suspect requests attorney—questions must cease until attorney is present

e. If at any stage suspect invokes right to remain silent—questions must cease.

f. Policy: we don’t know what happens in interrogation room.

g. Dissent: pressure is not coercion, and 14th Amendment already ensures that confessions are “voluntary.”

h. Coercion cannot come from an outside source—Colorado v. Connelly (1986)—Defendant said voice of God insisted that he confess to police.

i. Congress purported to override Miranda in 1968 Omnibus Crime Control Act by setting new standard, but Courts ignored it for 30 years:

i. United States v. Dickerson (2000)—Miranda HAD to be a constitutional decision because:

1. It applied to the states.2. It overruled legislative acts

ii. Court declines to comment on whether it was properly decided but invokes stare decisis.

iii. Scalia/Thomas dissent: Miranda was wrong. No need to shore up the 5th Amendment with prophylactic rules unless Congress wants to do it.

j. Miranda is something of a compromise, because if Court was so concerned about interrogation, they could have: 1) taken interrogations out of hands of police; 2) said that

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police trickery was an automatic 5th Amendment violation requiring exclusion of evidence.

XXVI. Miranda Custodya. “The level of restraint associated with a formal arrest”—

look to 4th Amendment test for whether arrest has occurred!

b. REASONABLE SUSPECT test—if person announces “I feel restrained!”—that doesn’t cut it.

c. Orozco v. Texas (1969)—police questioning of suspect in his bedroom at 4 AM was custodial.

d. Estelle v. Smith (1981)—psychiatrist questioning defendant in penalty stage of capital phase needs Miranda warnings

e. Oregon v. Mathiason (1977)—where non-arrested person goes to station house and confesses, that’s not custody.

f. Berkemer v. McCarthy (1984)—traffic stop pre-arrest is not custody:

i. Applies logic of how much compulsion—not much at traffic stop compared to at police station.

ii. Motorist does not feel “at the mercy of police” (debate in class—more vulnerable at side of dark street or in station with lots of people)

iii. Moment person is arrested—regardless of how minor underlying crime is—Miranda kicks in.

g. If you are in station house:i. Were you invited to come in or commanded to?

ii. Are you physically restrained? Were you brought there by force?

h. Minnesota v. Murphy (1984)—meeting with parole officer to talk about rape and murder is not custody, even after Murphy said he’d be more comfortable speaking to a lawyer. Look at facts regarding coercion:

i. No restraint on freedom of movement—could get up and go.

ii. Murphy agreed to meeting at mutually convenient time.

iii. Not an “unfamiliar atmosphere” nor place with sole purpose of interrogation.

iv. Miranda was meant to protect those who felt they had no other choice than talk—those facts not present here.

i. Stansbury v. California (1994)—officer intent (or lack thereof) irrelevant to custody analysis.

j. Howes v. Fields (2012)—Being in prison meeting room is not custody. One of the most ridiculous cases of the class

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—how could a prisoner know he’s allowed to talk to a lawyer when visitation rights are so strict?

k. JDB v. North Carolina (2011)—there may be some subjectiveness in custody test—at least for minors.

i. Examining all of the circumstances, a reasonable 13 year old being asked questions by assistant principal and school police after being pulled from class would feel he was not free to leave and had to answer questions.

ii. Dissent/Majority argue about whether reasonable suspect test is complicated or made easier by taking age into account.

XXVII. Miranda Interrogationa. Interrogation = “express questioning or its functional

equivalent.”b. Rhode Island v. Innis (1980)

i. Innis arrested for murder, read Miranda rights and says he wants attorney.

ii. In back of police car—cops in front talk about how awful it would be if handicapped child at local school accidentally shot self, Innis speaks up and takes them to gun after being re-Mirandized.

iii. RULE FOR INTERROGATION: express questioning or “words or actions on the part of the police that the police should know are reasonable likely to elicit an incriminating response from the suspect.”

iv. So about what police would think a reasonable suspect would do.

v. Apparently, here police did not think their statements would make suspect speak up so—not questioning.

c. Illinois v. Perkins (1990)i. Sending undercover agent to befriend prisoner and

having that agent elicit questions is NOT interrogation because suspect didn’t know he was being questioned by police—false friend doctrine.

ii. Miranda was about coercion by police—no likelihood of feeling coerced by police if you don’t know it’s police.

iii. But Arizona v. Fulminante (1991)—guy feeling so threatened in prison that he turns to “gang leader” who is actually police informant fails voluntariness test.

d. Cases add up to: police intent does not matter. (except Innis fn. 7—if police had experience knowing statements would make guy talk—that’s interrogation).

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e. Pennsylvania v. Muniz (1999?)—Booking questions (name, address, etc.) are not interrogatory (4 justices) or there’s a Miranda exception for them (4 justices).

XXVIII. Miranda Warnings Done Right?a. Miranda said exactly what to say, and repeating that

word-for-word is a good idea for policeXXIX. Invocation of Miranda Rights

a. Miranda originally said “in any manner” but now it has to be EXPLICIT

b. Michigan v. Mosley (1975)i. Must unequivocally invoke right to remain silent.

ii. Then, must be “scrupulously honored” by police.iii. Which means—waiting a few hours, if a different

detective comes in to ask about a different crime with new Miranda warnings—that’s fine.

c. Edwards v. Arizona (1981)i. When suspect invokes right to ATTORNEY,

“scrupulously honoring” that means NO more questions until attorney is present.

ii. May not be waived by simply answering further questions.

iii. Even waiting three days and asking about a different crime, from different police officer (Mosley facts) is not okay—Arizona v. Roberson (1988)

d. But Maryland v. Shatzer (2010)—After 14 days free from custody, invocation of counsel right lapses and police may try questioning again. Like fruit of poisonous tree doctrine, we see where risk of coercion has worn off.

e. Davis v. United States (1994)—suspect must UNAMBIGUOUSLY request counsel. Saying “Maybe I should talk to a lawyer” and then dropping the issue does not cut it.

f. Salinas v. Texas (2013)—Silence after answering other questions may be used against Defendant at trial because people must EXPRESSLY invoke privilege against self-incrimination. Mere silence does not cut it.

g. For either right, if suspect initiates further communication, questioning may resume.

h. Reason attorney gets more power: indicates person needs outside help and cannot handle questioning on their own.

XXX. Waiver of Miranda Rightsa. Traditionally, there was “space” between express waiver

and express invocation, but now we assume that if there was no express invocation, the rights were probably waived.

b. Moran v. Burbine (1986)

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i. Waiver of rights needs to be “voluntary, knowing, and intelligent.”

ii. But “intelligent” does not mean fully-informed or wise or prudent—police not telling Burbine that his attorney was calling on the phone and wanted to talk is fine.

c. Berghuis v. Thompkins (2010)i. There IS implied waiver if person does not expressly

invocate rights. (North Carolina v. Butler (1979) where suspect refused to sign waiver but said he would talk)

ii. Thompkins gave monosyllabic answers for almost three hours before being asked about God, when he broke down crying and confessed.

XXXI. Consequences of Miranda Violation:a. Missouri v. Seibert (2004)

i. Police wake suspect up at 3 AM in hospital, ask questions, break for coffee, THEN Mirandize, ask same questions, get same answers.

ii. Standard: Would a reasonable person in suspect’s position interpret the post-Miranda interrogation as a new and distinct experience?

1. Do same questions overlap?2. Different or same officers?3. Same/different timing/setting for each

encounter?4. Degree to which second set of questions are

continuous with the firstiii. Kennedy concurrence—officers cannot intend to

evade Miranda—but that introduces officer intent!b. United States v. Patane (2004)—physical evidence found

as result of voluntary, non-coerced but non-Miranda waived testimony IS admissible.

Rodriguez v. United States (2015)—when traffic stop is done, it is DONE, police may not seize car for any longer for general investigatory purposes like a dog sniff after calling for backup.

Themes of class: Court afraid of technology (Katz, Jones) Value of the exclusionary rule in deterrence—must go to police

misconduct

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Not knowing which side to believe in court because both self-interested.

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