Crim Pro Outline CG

8/2/2019 Crim Pro Outline CG

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DUE PROCESS

DEFINING DUE PROCESS:

(1) DP as Rule of Law: Goals are regularity and evenhandedness in admin of justice,accountability in use of govt power. Constraint on arbitrariness.

o Hurtado v. CA:Absence of grand jury NOT necessarily violation of due process; dueprocess is rule of law, must be legal, pertain to everyone.

5th Amendment does not provide guarantee of indictment in all criminal cases.Therefore, when D has access to counsel, right to cross-examine witnesses, etc.,

is enough to satisfy due process of law.

(2) DP as Bill of Rights: List of protections in the Bill of Rights; no unifying principle.o From the dissent in Hurtado.o INCORPORATION

Duncan v. Louisiana: LA had a provision that only required a jury trial in capitalpunishment cases. Ct says he gets a jury trial.

Shift from standards to bright-line rules.o Broad Race-Based Injustice:

Not an accurate procedures case bc the ct doesnt want to get in the businessof regulating discrimination.

Baldwin v. NY: Anything over 6 months should get a jury trial.o Downsides to the B/R approach:

Did not contemplate our current system Can be inflexible and limiting, put you in a straitjacket Race is still an issue; B/R doesnt address this head-on.

(3) DP as Accurate Procedures: Focus on keeping innocent people from being convicted.o Race-based cases: Overturning convictions of black Ds where the proceedings seemed

racially rigged based a certain issue, such as involuntary confessions, mob-dominated

trial, etc.

o Rather than addressing the issues of a case, look for abuse of, or disregard forprocedures.

(4) DP as Fundamental Fairness: Does it shock the conscious?o Still not sure what this is, but you know it when you see it.o Rochin v. CA:Cops pumped Ds stomach; ct felt it was reconciling feelings of fairness in

society and the law.

Residual Due Process Clause: Very little left of due process in criminal cases apart from the B/R.


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Competency to Stand Trial:o Medina v. CA: Who bears the burden of establishing Ds competency to stand trial?

If you make D establish it by clear and convincing evidence, you are effectivelyalready trying him.

Preponderance of the evidence means more probable than not. Clear and convincing means highly probable.

o Cooper v. OK: Clear and convincing proof of incompetence is too high a burden. Balancing vs. B/R Which gives you more due process protections?

D has best access to info; But dont want D to fake incompetence.

Hamdi v. Rumsfeld: Does a detained enemy combatant who is a US citizen get DP protections?Or is B/R more appropriate here?

o Ct here uses a hybrid of the Mathews v. Eldridge balancing test. Suggests that DP could possibly move to interest balancing rather than B/R.

RISE AND FALL OF BOYD:

When the intersection of personal privacy and property privacy were closely intertwined,4th & 5th Amendments were treated together, in tandem.

Boyd v. US: (Didnt pay the import duties, US subpoenaed invoice. Statute providedif he doesnt produce

it, assume its a confession.) Order to produce is a 4th amendment violation; 5th amendment right isviolated bc he is being forced to incriminate himself by turning over this material.

4th amendment claim: Must be a search and/or seizure; must have been unreasonable. 5th amendment claim: Is this a criminal case? Notice that the ct is treating the 4th claim is not a classic search, but ct is treating it functionally

as such; and with the 5th, the ct is treating the action functionally as a criminal action.

o Treating them as running together, to get in the ambit of protecting some sort ofproperty/privacy interest.

Govt shouldnt be able to take property unless they or someone else have agreater interest in it.

Privacies of life also being protected. Miller agreed w/5th amend arg, but not that production of the docs was search/seizure.


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This was the state of the law; much different now. What is interesting about Boyd is that some

of its language sows the seeds of its destruction.

Gouled v. USApplied Boyd to a S&S pursuant to a valid search warrant. The court declined toprovide protection under the mere evidence rule.

o Ct said that you cant turn a person against themselves using similar evidence seized toprosecute

o . Mere evidence rulegovt can search for that which is evidence of a crime; D

does not have to produce it and therefore is not acting as a witness against

himself.

*Gouled was overturned by Hayden

o Hale v. Hinkle Corporations do not have 5th amendment privileges.o Knocks out 1 of Boyds problemso ShapiroCt developed the required documents jurisprudenceo If you are required to keep certain records, you cannot claim privilege in not turning

them over

o Marron - allowed govt to seize instrumentalities of crime, including paperso Balance btwn individual rights and interests and societal rights and interests. We speak

about these rights in absolute terms, but the law is always changing, etc.

o SUMMARY:o Boyd grounded DP protections in notions of property.o Fruits or instrumentalities of a crime, illegal goods, the gov has more of a right to them.o Boyd, in some respects, contained the seeds to its own destruction; the government

really wanted to regulate property.

o The Boyd regime does not work, if there are other certain needs that you need toaccommodate; nonetheless, it was a significant case.

SCHMERBER v. CALIFORNIA: Guy smelled and acted like he had been drinking; therefore therewas probable cause that he had been drinking. He had also been driving. Driver is taken to the

hospital, cop asks for a blood sample, etc. He is convicted of DWI based on the evidence derived

from taking of his blood.


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Overriding claim is due process, 4th, 5th amendment claims Ct says that 5th amendment only applies to your own testimony giving blood was not

testimonial.

Ct says that the taking of the blood was a 4th amendment search. There was probable cause toseize/arrest him 4th only protects things.

Whereas in Boyd, the 4th and 5th claims were intertwined to create a protected zone, they areseparated in schmerber.

4th amendprotects against unwarranted intrusion. There is a shift away here from substantive protection to procedural protection. The subtext of this is the war on crime. Govt has the burden of proof. Yes you have these rights,

but they are a matter of degree, and there are going to be times when the govt is justified in

searching and seizing.

Generally, a reasonable search and seizure is one that is pursuant to a warrant issued by amagistrate w/ probable cause, etc. in order to be reasonable.

Schmerber creates an Exigent Circumstances exception to this. One form of such circumstances is destruction of evidence. This is a further dismantling of the doctrine in Boyd, due to other societal interests. How do we

balance these interests?

Warden v. Hayden: Undermining Boyd and its progeny, Goulad This is a classic case of mere evidence, following Goulad. Schmerber is also a classic mere evidence case, but the issue was just not presented. If there was any doubt about the separation of the 4th and 5th, Hayden confirms it here the

only purpose that they were using the clothing for evidence to convict him.

We see again here the following interests: Procedural evidence Balancing societal interests Fleeing suspect is another example of exigent circumstances. This case OVERRULES the mere evidence holding in Goulad. Berger v. NY: Wiretapping case - Strikes NY statute down bc it is procedurally unconstitutional

the govt can get this info, provided that it does it correctly.

Ct then goes on to tell the states how to do it.


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Dismantling Boyd emphasis on procedure underlines the fact that your rights are not absolute.Govt can get this info.

Boyd has thus been almost wiped off the map. The content of the invoice was protected. But is gov subpoenaing a doc you prepared like

compelling you to create evidence?

No; while the act of producing does have testimonial aspects, Testimonial aspects of producing documents: they exist possessed them authenticating them From the last of the Boyd cases, we see that one thing the 4th does is protect individual privacy.

It also regulates police/governmental conduct, acting as a sort of tort law for cops.

1949 ct applies the 4th amendment to the states via Wolf v. Colorado, but says that in terms ofwhat remedy is given, it is up to the individual states.

Mapp v. Ohio: (pg. 340) decided in 1961, merely 12 years after Wolff. Lewd books, search w/o awarrant.

Issue: What remedy do we use? We ought to apply the exclusionary rule in states too. 3 reasons why: Silver platter doctrine disparity btwn fed and state rules encourages state police to go in, get

evidence, then turn it over to the feds.

However, this is bogus, bc Elkins and wrenria (sp?) already addressed this issue. Judicial integrity HYPO: Cops go into Mapps house and find 2 bags of heroine. Bc the entry is illegal, drugs are

suppressed bc violation of 4th

amendment right. At trial, Mapp gets on witness stand, is asked

about drugs in her house, and she says no. The jury are the only ppl who dont know the truth. Is

this judicial integrity?


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Court has made an exception here via Havens can use the drugs to impeach. How is thisjudicial integrity?

Does the fact of the exclusionary rule cause police officers to lie? Does it cause judges to be influenced by the fact that the cops did find something bad and

therefore find the search valid?

Docking pay or something like that might end up in cops being overly cautious in searches,letting guilty ppl go free.

Also, exclusionary rule does nothing unless you arrest and prosecute the person, bc otherwisethere is nothing to exclude.

The 4th amendment also applies to searches, seiezures, and the manner in which they arecarried out.

So, the remedy would be tort? Not going to be easy Practical issues: What damages are you likely to get, especially if you arent an attractive

plaintiff?

Legal issues: Also, there are issues like qualified immunity, trying to sue state in federal ct, etc.(more examples in reading.)

So, the exclusionary rule may indeed be best, bc it deters, but it doesnt deter too much. Also, Criminal prosecution is only used in the most egregious of cases in the first place. Deterrence Idea that it will deter police officers; plus, the only thing that happens is evidence

is excluded.

We will find in future cases that this is the primary judicial reason used to support theexclusionary rule.

Note: LA v. LyonsInjunction denied in keeping cops from using a chokehold. Ct doesnt wantto get into the business of regulating cops/applying remedies to things that have not occurred.


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FOURTH AMENDMENT (Search and Seizure)

STEP (1): Does the 4th even apply? (i.e. is the govt intrusion a search or seizure?)

(A) Is the conduct in question governmental?

Is the actor public or private?o If public, 4th will generally apply.o If private, are they acting as an instrument of the state? Are they acting at the direction

of a govt agent, or pursuant to an official policy?

What degree of govt encouragement, knowledge, or acquiescence? Private actors underlying purpose/interest? (i.e. promoting personal/business

objectives, or govt ones?)

NOTE: Security guards are only treated as govt actors when they gobeyond protection of their employers interests, to take on a quasi-law

enforcement function.

(B) Is the conduct (1) an intrusion (i.e. search) into an area in which (2) ppl may reasonably expect

privacy?

Does the intrusion constitute a search?o 4thamend protects people, not places; applicability derives from intrusion into

concept of privacy, not solely physical intrusions.

Katz v. US: Public phone booth; broadens the idea of what can be construed as asearch.

Did not offer a coherent theory of privacy. Ct has ended up treating it likecommon law, on a case by case basis.

The Katz test has been construed narrowly. (CA v. Greenwood) Needs to bebalanced w/ polices ability to collect criminals.

o (A) Did the person manifest a subjective expectation of privacy?o (B) Does society accept this expectation as objectively reasonable?

Is there a reasonable expectation of privacy?o KNOWING EXPOSURE: No reasonable expectation of privacy where a person knowingly

exposes [something] to the public, even in his own home or office (Katz). (Basically, risk

of exposure = knowingly exposed). This includes:

Conveying information to 3rdparties, even in an apparently private conversation. US v. White: Bugging a person in a drug deal.

Conveying information to bank or phone company in course of business. However, these cases have been made obsolete by legislation. In NJ,

cant get someones phone stuff just bc they gave it to the company.


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(State v. Hunt)

Leaving your garbage out on the curb to be collected. (Greenwood) In NJ, going into someones trash w/o a warrant violates state law.

(State v. Hemple)

A persons external physical attributes, including handwriting, fingerprints,sound of their voice.

This excludes attributes not on public display, whose examinationrequires bodily intrusion. (Schmerber)

o OPEN FIELDS DOCTRINE: Decreasing expectation of privacy as you go from home, tocurtilage, to open fields. Cops can enter open fields, but NOT the curtilage or home.

Even if signs are posted, trespassing on open fields is NOT considered a search.(Oliver v. US)

Ppl dont pay attention to trespassing signs, so why should cops needto?

This means cops can go in the common hallway in an apt building, or sit justoutside the curtilage of a home.

Note the distributive tilt of the 4 th amend protections here. 4 factor test for deciding if you are in open fields (US v. Dunn):

Proximity of the area to the home; Whether area is included in enclosure surrounding the home; Nature of the use of the area (i.e. is it used for intimate activities?); Have steps been taken by resident to protect the area.

However, govt still may NOT enter structures, even though they are outside thecurtilage.

o AERIAL SURVEILLANCE: Naked-eye observation of curtilage areas, even if enclosed, areNOT searches, so long as they are from lawful vantage points.

CA v. Ciraolo: Plane flying 1,000 ft over curtilage is NOT a search. Fl v. Riley: Helicopter flying 400 ft over curtilage NOT a search. NOTE: In these two cases, the flights in question were (1) w/in legal parameters,

including FAA; (2) were naked-eye observations; (3) did not interfere w/ normal

use of curtilage by way of undue noise, wind, dust, or threat of injury; and (4) did

not reveal any intimate details connected w/ Ds use of his home.

o TACTILE vs. VISUAL OBSERVATION: More protections against tactile observation thanvisual, bc physical inspections are more intrusive than visual ones.

Bond v. US: An agent squeezing the contents of bus passengers bag WAS asearch


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o ENHANCEMENT DEVICES: Where the device merely enhances sensory perception andfacilitates surveillance that WOULD still be possible w/o the enhancement, the 4

th

amend is NOT implicated. (i.e. cameras, videos, flashlights, aerial cameras, drug dogs,

and field tests for narcotics.)

DOG SNIFFS: Ok depending on the place. US v. Place: Drug dog sniffing bags at a public airport is NOT a search. Illinois v. Caballes: Drug dog sniffing the exterior of a car stopped on

public road was NOT a search.

TRACKING DEVICES: Ok so long as it doesnt go into the home. US v. Knox: Tracking beeper on car NOT a search, bc it only disclosed

what someone could have seen from the street.

o NOTE: This issue is being revisited in US v. Jones. US v. Karo: Tracking beeper on chloroform drum, which ended up in a

house. Ct held that this WAS a search bc govt was able to learn

something about the inside of the house that otherwise would have

required a physical intrusion.

HIGH-TECH SNOOPING IN HOME: Kyllo v. US: Thermal imaging a house to see if weed is being grown. Ct

held that this surveillance WAS a search, drawing a firm line at the

entrance to the house.

o Does the device provide govt w/ evidence they wouldntotherwise have access to?

o Is the device in general public use? NOTE: Is this a workable standard? What about a

telescope?

MISC. SHELTERED AREAS (in addition to the home): Public telephone booth (Katz) Administrator has a reasonable expectation of privacy in his office at a

state hospital. (OConnor v. Ortega)

Public school student has a reasonable expectation that her purse willnot be searched by an administrator. (NJ v. TLO)

Is there a seizure? Three part test as to when seizures occur:o (1) A person is seized if a reasonable person in his or her circumstances would not feel

free to terminate the encounter.

FL v. Bostick; US v. Drayton: Both cases are bus stop seizures that found drugs,where D consented to the search.


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Would a reasonable person in the circumstances feel that they canrefuse the search?

US v. Mendenhall: Four factors used to determine what a reasonable person would believe:

o Threatening presence of several police officers;o Display of a weapon by a police officer;o Some physical touching of the person;o Use of language or tone of voice indicating that compliance may

be compelled.

Other things to think about in considering the reasonable person:o Raceo Bus stationso Airportso Post 9/11 America

o (2) A person is only seized when they are stopped by means intentionally applied.Intent of police IS material.

Brower v. County of Inyo: Cops set up a roadblock just around a bend, so theycould stop a specific person.

A 4th Amendment seizure does not occur whenever there is agovernmentally caused termination of an individuals freedom of

movement (the innocent passerby pinned to the wall), nor even

whenever there is a governmentally caused and governmentallydesired

termination of an individuals freedom of movement (the fleeing felon),

but only when there is a governmental termination of freedom of

movementthrough means intentionally applied

NOTE: If you are stopped in a car, not only are you seized, but your passengersare also seized.

o (3) A seizure requires either application of physical force of constraint, OR, where thelatter is absent, submission to assertion of authority.

CA v. Hodari D.: Guy tossed drugs right before cops tackled him. Ct said that bcthere was not yet any physical force or submission to authority, the drugs were

NOT the product of a seizure, bc the guy abandoned them.

NOTE: This is NOT the law in NJ (State v. Tucker)STEP 2: What does the 4

thamend require? (Doctrine of Justification)


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WARRANTS:

Questions:o (1) Does the 4th amendment apply?o (2) What level of suspicion is required?o (3) Was the search reasonable?

Warrants are issued by neutral magistrates based on probable cause. Means that to make itreasonable, cops have to put their story out there before searching.

o After the fact determinations might be biased bc of any evidence seized. NOTE: This means that the problem with the exclusionary rule is that the ct

knows the cops had it right.

o Can challenge warrants if there was: Reckless disregard for the truth or false statements made;

However, negligent or innocent falsehoods in an affidavit will NOTInvalidate a warrant.

What the officer knows at the time of application must be disclosedthen, cannot add it in later, or at the motion to suppress;

No neutral magistrate: Attorney general cannot sign the warrant, bc he is not a neutral

decisionmaker. (Coolidge v. New Hampshire)

However, clerks w/o law degrees issuing warrants was held permissible.(Shadwick v. City of Tampa)

Particularity Requirement: Must set forth the place to be searched and the items to be seizedwith enough particularity that an officer with reasonable effort could ascertain and identify the

place intended. You must note the person/things to be seized and where they are.

o Rationales for the Particularity Requirement: Limits the scope of searches, both spatially and temporally. Supports the Probable Cause requirement: If the cops cant tell you these

things, maybe they dont have probable cause.

Ensures that ppl are not wrongfully deprived of their property.o Maryland v. Garrison: Warrant applied to the entire 4th floor of a building, cops walked

into the wrong apartment.

If the cops failure to recognize that the warrant is overbroad is objectivelyreasonable, then the search is still good.

Staleness of Search Warrants: Because items are so readily transportable, the timeliness of


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information is more important in the case of search warrants than for arrest warrants.

o Conditional Anticipatory Warrants: In order to comply w/ 4th amendment probablecause, two prerequisites must be satisfied: (US v. Grubbsdelivery of child porn took

place after warrant.)

(1) If the triggering condition occurs, there must be a fair probability thatevidence of a crime will be found; and

(2) There is probable cause to believe that the triggering condition will occur.EXECUTION OF WARRANTS: Was the search reasonable?

Knock and Announce Rule:o Cops must K&A before entering premises. (Wilson v. Arkansas)o Dont need to comply with K&A if you have reasonable suspicion that it would be futile,

dangerous, or there would be destruction of the evidence. (Wisconsin v. Richards)

A judge can authorize a no-knock warrant if cops set forth facts in the affidavitto support it. (i.e. guns in the house.)

o If cops knock and no one answers, they can still enter, and destroy property in doing do,so long as it is reasonable. (US v. Ramirez)

K&A basically allows an opportunity to let the cops in.o One Flush Rule: It is reasonable, in drug dealer circumstances, to wait only 15-20

seconds before going in. (US v. Banks)

Just need reasonable suspicion that evidence is going to be disposed of. Ct does not want a rigid rule; gives trial courts lots of discretion in dispensing w/

K&A.

o Hudson v. Michigan: Once you say that 4th requires K&A, if you dont do it, its aviolation of the 4th.

But what is the remedy? Exclusionary rule does NOT apply to violations in theexecution of a warrant!

Dealing with 3rd parties in Executing Warrants:o Cops can detain people they find at the place of the warrant while it is being executed.

(Michigan v. Summers)

This minimizes risk of harm to cops, occupant leaving in the event something isfound, facilitating orderly completion of the search.

Muehler v. Mena: What is reasonable in terms of length of detention? Ifquestioning a person does not prolong the detention past the time it takes to

complete the search, then the questioning is not an additional seizure.

o Wilson v. Layne: Media entering home w/ cops to execute arrest warrant was in


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violation of 4th amendment.

o Los Angeles v. Rettele: Cops barged in on sleeping couple, held them at gunpoint for alittle bit; this was a reasonable search bc the cops needed time to make sure there was

no one else in the room who would pose a danger.

PROBABLE CAUSE AND WARRANTS: Level of Suspicion Required

PROBABLE CAUSE: That quantity of facts and circumstances within the police officers knowledgethat would warrant a reasonable person to conclude that the individual in question has

committed a crime (in the case of an arrest) or that specific items related to criminal activity will

be found in a certain place (in the case of a search).

o Requires specific, concrete facts, not merely conclusory speculations. On a scale ofprobability, it is something more than a hunch or suspicion, but considerably less than

proof beyond a reasonable doubt.

Officers belief that a crime is being committed is NOT enough, nor is it enoughfor his suspicion to be confirmed. (Nathanson v. US)

o Probable cause is the substantive requirement, and the warrant is the proceduralrequirement.

Unless a case falls into one of the limited exceptions, police must satisfy both. PROBABLE CAUSE and INFORMANTS:

o Draper v. US: (description of clothes, walks quickly) Detail provided to police byinformant was such that probable cause was established. Informant also was reliable.

o Spinelli v. US: (gambling ring, 2 telephone lines) Here, informant has no track record; ctannounces 2-prong test.

TWO PRONG TEST: An anonymous tip must reveal (1) Reliability and Veracityof Informers knowledge; and (2) Basis of the knowledge.

Notice that this test would never allow anonymous tips.o Illinois v. Gates: (flying to florida to get drugs) Anonymous letter, didnt know if tipster

was reliable; Cops corroborated some details, but not everything matched. Ct held that

alone, the letter would be insufficient, but that corroboration of major points of the

letter creates probable cause.

Overrules Spinelli test, in favor of a Totality of the Circumstances, whichtakes into account the 2-prong considerations:

To Search, there must be a fair probability that there is evidence of acrime in a certain location.

To Arrest, there must be a fair probability that the suspect committed


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or was about to commit a crime.

This fair probability in light of the totality of the circumstances also is based onthe following:

Common sense reading by the magistrate; If one of the Spinelli factors is lacking, the other may compensate

(Probabilities are not exact, and so do not lend themselves to an exact

test);

Deference should be given to the trial ct w/ regard to warrants. Issues:

Does this standard encourage abuse? (i.e. cops manufacturinginformants, then pointing out innocent facts and claiming

corroboration?

Is this test just a puppet for reasonableness?o Keeping the law of probable cause to a minimum reduces the power of appellate courts.o Ornelas v. US: Deference should be given to magistrate/trial judges w/ respect to

warrants. If there is no warrant, then the appellate ct reviews it de novo

Deference to factfinding by the judge, as well as inferences drawn by both thejudge and the cops.

Seems to give deference to police more than trial courts, so the impact of thiscase may be minimal

PLAIN VIEW DOCTRINE: Does NOT authorize a search; merely authorizes the seizure of somethingthat was in plain view. Cop must be lawfully in the house in the first place, via warrant or exigent

circumstance. Plain view doctrine is generally about seizures, NOT searches.

o 3 requirements of plain view: (1) Cops must be lawfully in the position to view the item and gain custody of it. (2) It must be immediately apparent to the cops that the item is subject to seizure.

(Probable cause) (Hicks)

(3) Inadvertence cops must not be looking for what they stumbled upon. (Rejectedin Horton)

o NY v. Class: (cop looking for VIN number saw butt of a gun.) Ct said Class had no reasonableexpectation of privacy in his cars VIN, which was required by law to be in plain view.

Officer was allowed to seize the gun bc of plain view doctrine.o Arizona v. Hicks: (guy shot gun through floor, cops came into his apt, shifted stereo to record


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serial number)

(1) Was this a Search? Taking action unrelated to the objectives of the authorizedintrusion, which exposed concealed portions of the apt or its contents, DID produce

a new, unjustified invasion of privacy.

Moving the stereo was a search, but not writing down the serial #. Ct is drawing a line, possibly based on Mincey exigency was gone by the

time they were looking for stereo #s.

(2) Was it Reasonable?Probable cause is required to invoke plain view doctrine i.e.incriminating nature of the object must be immediately apparent.

Cant send pills off to lab to be tested, etc.o Horton v. California: (cops have warrant to find 3 rings, proceeds of a robbery, knew that

there might be guns there too, but warrant was only for rings) The guns were in plain view,

ct rejects the inadvertence requirement.

EXCEPTIONS TO THE WARRANT REQUIREMENT: Searches conducted outside the judicial process,

without prior approval by judge or magistrate, are per se unreasonable under the 4th

Amendment

subject to only a few specifically established and well-delineated exceptions (although this has

expanded dramatically in recent years).

o Exceptions Requiring Probable Cause: Exigent Circumstances Search Incident to Arrest Automobile Exception

o Exceptions Requiring Reasonable Suspicion: Stop and Frisk Investigative Detentions

EXIGENT CIRCUMSTANCES EXCEPTION: Requires probable cause.o Prerequisites:

(1) Police have probable cause to believe items relating to the crime would befound/suspect had committed a crime.

(2) Circumstances present sufficiently compelling urgency, making resort to the


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warrant process impracticable/risky:

(a) Degree of urgency (taking into account time needed to obtain a warrant,including telephonically);

(b) Reasonableness of the beliefthat evidence is being destroyed/about tobe destroyed;

(c) Possibility of danger to police watching the location; (d) Common behavioral characteristics of ppl involved in the particular type

of criminal activity;

(e) Indications that suspects are aware that police are on their tail; (f) Whether the emergency arose from the actions of the police themselves.

(it CANNOT be of their own making)

o (From US v. Howard)o A warrantless search must end when the exigencies that justified its initiation end.

Mincey v. Arizona: (guy shot undercover cop in his apt, subsequent search of aptwas pretty intense.) AZ tried to establish an exception to the warrant requirement

when murder is involved; ct shot it down.

It was ok for the cops to look for other injured ppl in the house and preservethe scene; however, the 4 day search that followed far exceeded the

relevant circumstances.

4th amend kicked in when the homicide detectives came to the scene. Affirmed by Flippo v. West Virginia (ct excluded evidence where cops went into

home where murder had taken place and seized photos.)

o Fleeing Suspects/Hot Pursuit: Police can follow a suspect inside a house and then lawfully search for him, so long

as they have probable cause to believe he is in there; rationale is 4th

doesnt

require delay where it would endanger cops lives or the lives of others. (Warden v.

Haydencab drivers told cops suspect entered house, cops entered minutes later,

searching for suspect, found guns in plain view; ct allowed it.)

However, ability to do this depends on the gravity of the offense. (Welshv. WisconsinDrunk guy crashed car, walked home; ct held that cops

couldnt violate sanctity of home to search for him w/o warrant for such a


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minor offense.)

o Trivial crime + invasion of home Creating an exception to theexigent circumstances exception to the warrant requirement.

Warrantless searches/seizures in a home are presumedunreasonable; burden is on govt to establish exigent

circumstances to overcome this.

o Destruction of Evidence: Where delay would cause destruction of evidence, escape ofsuspect, or danger to cops/others.

Mendez v. CO: (Cops smelled burning weed outside hotel room.) They were allowedwarrantless search bc of substantial likelihood that contraband would continue to

be destroyed before they could get a warrant.

US v. Dickerson: (Cops w/ a K&A warrant to search Ds home for drugs, were metoutside home by D, and commotion ensued. Cops then entered home w/o K&A.) Ct

said the ensuing search was good, even w/o K&A, bc ppl inside the home who heard

the struggle created an exigent circumstance.

Kentucky v. King: (Cops knocked on door, heard noises, which led them to believethat evidence was being destroyed.) Raises the issue of cops acting in bad faith by

not getting a warrant.

Ct says that if the cops were acting reasonably and not in violation of the 4th

amend before the exigency, then it is ok.

NOTE: Could this be a test of reasonable suspicion?

COMMUNITY CARETAKING EXCEPTION:o HYPO: Late at night, cop pulls over only car on the road, smells weed. Can he arrest? YES;

isnt this the reasonable thing we want cops to do?

But does this allow cops to create exigent circumstances for the purpose of avoiding

a warrant?

AUTOMOBILE EXCEPTION: Requires probable cause.o Prerequisites: Can subject cars to a warrantless search when:

(1) They are stopped on the road (or were stopped); and


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(2) There is probable cause to believe that seizable items are present.o Carroll v. US: Cops had probable cause that a bootleggers car had alcohol in it. They

stopped it and found lots of booze, warrantless search.

Ct creates another exception to the warrant requirement: Police can conduct awarrantless search of a moving car if they have reasonable or probable cause to

believe that it is engaged in criminal activity.

Rationale: Based in exigency by the time they get the warrant, the car will begone. (i.e. it isnt reasonably practicable to obtain a warrant.)

o Chambers v. Maroney: The automobile exception applies even where the car has beenimpounded by the police. (Basically, if you could lawfully search it on the road, it was

permissible to conduct a delayed search insteaddelay does not make the search

unreasonable, not a greater intrusion.)

This shifted the rationale put forth by Carroll now the ct is saying that youcategorically have less expectation of privacy in a car. Shifting from a standard to a

rule.

This includes mobile homes not fixed to the ground. (CA v. Carney) Exigency is no longer a requirement.

o CONTAINERS IN CARS: Defining the breadth of the automobile exception search is limitedONLY by the size/nature of the items for which there is probable cause to search.

OLD 2-STANDARD RULE: This leads to the idea that if probable cause is based in thecontainer, then Chadwick/Sanders applies; but if probable cause is based in the car

itself, then Ross applies. Ct changes this odd 2-standard rule in Acevedo.

US v. Chadwick: Cops waited for suspect to enter car, then searched car, aswell as footlocker in the trunk; Arkansas v. Sanders: Cops waited for

suspect to enter a taxi before stopping the cab and searching his suitcase.

o These two cases rejected the idea that the automobile exceptionapplies to luggage.

o It doesnt matter if the container is not the kind usually used totransport personal effects. (Robbins v. CaliforniaCops stopped a

car for erratic driving, and smelled weed; guy was arrested, cops

found bricks of weed in plastic wrap in the luggage compartment.)


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US v. Ross: (Guy selling drugs out of his trunk, cops searched a paper bagthat was in the car w/o a warrant) Ct says that probable cause was based in

the car: If there is probable cause to search a car, that search may extend

to any part of the car or containers w/in it that may contain the object of

the search.

o Scope of warrantless search of car NOT defined by nature ofcontainer object is secreted in, but rather the nature of object.

CA v. Acevedo: (DEA watched who came to pick up package filled w/ weed; letperson drop it off, Acevedo picked it up, put it in trunk of car, drive away, cops

arrested him, officers searched car for weed.) Ct said if cops have probable cause to

believe that contraband is in the car, they may search anywhere/in any containers

in the car where the contraband could be hidden. Should not be restricted if their

probable cause doesnt extend to the whole car.

Adopted Ross, but went a step further.o Overrules Sanders, but NOTChadwick; but Prof. thinks that it really

overrules them both States may still interpret own constitutions,

though

o NOTE: Other exceptions may still apply, i.e. inventory search, searchincident to arrest.

RATIONALES:o No privacy distinction btwn probable cause based in car/probable

cause based in container;

o Cops would search more extensively in Ross situations;o Better to adopt a clear-cut rule;o Scope of search is still limitedif there is probable cause to believe

that object is in a suitcase in the trunk, still cant search whole car.

COUNTER ARGUMENT: None of this is based in exigency Points re: scalias originalist view:

(1) By not going all the way w/o warrants, suggests that history is not soclear.

(2) How do you decide when a warrant is indeed needed?


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(3) Purpose of a warrant was originally to give advantage to govt; today it ismore of a hurdle to getting evidence admitted, driven by the exclusionary

rule (i.e. in favor of D).

Misc Points: With all the exceptions, we may find that the warrant requirement only

really need apply to houses and other structures

o This was the cts point in Chadwick, but the SC rejected it. Searches of containers is not justified by exigency What does the rationale that cars = less privacy bc they are so regulated

have to do with a warrant? Process v. substance distinction

o However, with a warrant, it may be that you do get a probablecause plus, and with an exclusionary rule, you get probable cause

less.

Plus because of Magistrate hearing. Less because Judge influenced by success of the search.

o WHAT IS A CONTAINER? This includes a passengers belongings left in the car, so long as they are capable of

concealing the object of the search, and there is probable cause to believe the car

contains contraband.

Wyoming v. HoughtonSyringe found in drivers pocket, passengerleft herpurse in the car, cops searched it, found drugs.

o 2-step test for whether police action was reasonable see Atwaterfor application.

However, probable cause to search the car is NOT probable cause to search thepassenger.

US v. Di Re Need probable cause to search the passenger. To whom in the car does probable cause apply?

Maryland v. Pringle guys in speeding car all deny ownership of coke foundin it. Ct said it was ok to arrest them all.

o Ct distinguishes this case from Ybarra v. Illinois (Warrant to searchbar/bartender for drugs, ct said cops could NOT search patrons as


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well.), in that 3 ppl in a car are more likely to be engaged in

common enterprise than 12 ppl in a bar.

However, the issue in Pringleis not about containerso ***To determine whether an officer had probable cause to arrest

an individual, we examine the events leading up to the arrest then

decide whether the historical facts, viewed from the standpoint of

an objectively reasonable officer, amount to probable cause.***

Basically, the issue amounts to where the container is in the car or onyour body? If its on your body, once you get out of the car, Di Re says it

CANT be searched.

ARRESTS EXCEPTION Is Privacy more important than Liberty?o As far as constitution is concerned, foremost rule is that custodial arrests must be based on

probable cause. Warrantless arrest w/ probable cause outside the home does NOT violate

the 4th

amend.

Three sources for an arrest: Common law Statutes Constitution

o DO YOU NEED A WARRANT? Dont need a warrant to arrest outside of house/in public. (Watson) Do need a warrant to arrest inside house. (Payton) If you want to arrest inside someone elses house, you need a search warrant.

(Steagald)

o US v. Watson (D arrested in a restaurant, following tipster re: stolen credit cards.) Wherewarrantless arrest of person takes place in public/outside, and there is probable cause tobelieve that they have committed a felony, it is reasonable under the 4

th.

Differences in DURATION btwn arresting someone and searching a house: For warrantless arrest, must be brought before magistrate w/in 48 hours

to determine whether arrest met the probable cause standard. (County of

Riverside v. McLaughlin)


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o Can also get out quickly via bail. For a search, it may be a long time before you can get back into your

house/get your items back.

o To arrest someone in their home: Payton v. NY: If you have a warrant to arrest someone, cops CAN enter HIS home if

you have reason to believe he is there, but only to look for him, NOT to search.

Cops only need demonstrate probable cause to the magistrate; the timing isleft up to the cops.

CANNOT enter a home to make a warrantless arrest, absent exigencies.o To arrest someone who is in someone elses home:

Steagald v. US: Arrest warrant allows cops to search for perp in HIS home, but NOTin someone elses home (absent exigency or consent).

If you want to arrest X in Ys house, then you need to get a search warrantspecifically for Ys house. Otherwise, an arrest warrant would basically

allow an innumerable number of searches.

o Ys interests are not protected. This also addresses the likelihood of a mistaken assessment of probable

causeX is likely to be in his home at some point, less likely to be at Ys.

o Wide authority to arrest, even for minor violations: Cant tie the 4th to all of these state laws, so just look for whether there was

probable cause for arrest. (Virginia v. Moore)

Atwater v. Lago Vista: (Seatbelt violation by soccer mom, cop arrests her, she arguesthis is against common law; however TX has law authorizing arrest, D makes

historical argument that cant arrest for this.) 4th

amendment does not prohibit

arrests for misdemeanors; cops have the most discretion in the criminal justice

system.

2-Step 4th Amendment Analysis: (Houghton) used bc D made a historicalargument, kind of particular to this case.

o (1) Look at whether the police search/seizure would have beenconsidered unreasonable/unlawful when 4th was framed;

o (2) If this yields nothing, then balance the individuals interests


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against the governments interests. (traditional reasonableness

standards)

In Atwater, no clear answer comes from step 1, so the ct resolves the issuein favor of its bright line rule:

o If the cop has probable cause to believe that an individual hascommitted even a very minor crime in his presence, he may, w/o

violating the 4th

amend, arrest the offender. Any other scheme

here would not be readily administrable for the police.

4th amend does not only cover the arrest itself, but also the manner of thearrest.

o i.e. if you dont K&A, its a violation. Dissent: This runs contrary to the 4th should have a presumption

for/against reasonableness, depending on the severity of the crime. Wants

specific, articulable facts.

o Probable cause is the sole constitutional requirement for an arrest, save when the arrest isconducted in an extraordinary manner, unusually harmful to individuals privacy or

physical interests. (Whren v. US)

Basically, if there is probable cause, we dont second-guess the officers motivations.o Arresting and detaining someone as a material witness is not unreasonable, where it was

unlikely that they would respond to a subpoena. (US v. Awadallah)

SEARCHES INCIDENT TO ARREST:o Requirements:

(1) Underlying arrest must be lawful, i.e either; (a) Based on probable cause to believe that the person has committed a

crime; or,

(b) For arrests in a private building, there is a valid search warrant. (2) Arrest must precede the search/be substantially contemporaneous.

Exception where officer has probable cause to arrest, but merely delaysformal announcement of arrest. (Rawlings v. Kentucky)

(3) Search is limited to person of arrestee and his grabable area. (Chimel)


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This authorizes seizure and opening of containers in the area. (Robinson) This must also be contemporaneous, otherwise officer needs a warrant.

(Chadwick)

(4) For arrests of persons in stopped cars, grabable area includes entire passengercompartment/any containers in itbright line standard. (Belton)

Applies even if officer makes contact AFTER D exited car. (Thornton) (5) HOWEVER, cops must: (Gant)

(a) Have reasonable suspicion that there is evidence of the particularcrime in the car; or

(b) D must be unsecured and w/in reaching distance at the time.o Historically, searches incident to arrest were really about evidence gathering.

Harris v. United States: Court upheld a full-house search for forged checks Unites States v. Rabinowitz: Court upheld a 90-minute search based on an arrest

warrant for stamp forgery saying that Harris authorized the scope of the search,

which was intended to produce things connected with the crime.

o Chimel v. CA: (Cops had arrest warrant for burglary of a coin shop. Ds wife let cops into thehome, waited for D to return. D was arrested when he returned; cops asked to search the

house, D objected. Cops searched the house anyway, finding coins.)

GRABBABLE AREA RULE: It is only ok to search the person and the area under hiscontrol, i.e. where he could get a weapon, destroy/conceal evidence.

Anything more would diminish the 4th entirely. Rejects Rabinowitz says the scope of the search was unreasonable no

reason to go through all the drawers/containers in the house.

Dissent: Not searching may jeopardize destruction of evidence there is exigencyhere. Reasonableness would be a better test.

o US v. Robinson: (CONTAINERS D was arrested for driving w/o a license, cops found heroinin a pack of ciagrettes.)You can be searched, as well as any containers, when you are

arrested, mainly for protection of the officer.

Case-by-case adjudication is unnecessary; Robinson creates a hardline rule, whileChimel created a standard.

Difference might be bc Chimelwas inside a house?


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Dissent: This could result in profiling and arresting/searching for minor crimes.Should also take into account whether it is likely that this type of person may be

armed.

o ARRESTING PPL IN A HOUSE: Maryland v. Buie:

Cops may do a protective sweep of the immediately adjacent area, i.e.closets, to the place of arrest,when executing an arrest warrant in a

house, from which an attack could be immediately launched.

o A sweep into further areas requires an articulable reasonablesuspicion that those areas harbor an individual posing danger.

Protective sweeps aimed at officer safety may extend only to cursoryinspections of those places a person could be found.

o ARREST IN A CAR: NY v. Belton: (Search of pockets of coat left on backseat after D was already away

from the car.) When a cop stops you, its a seizure, and the cop can search the

grabbable area of the passenger compartment of the car.Justified by officer

protection and destruction of evidence.

NOTES:o NJ says NO to this type of rule; no authorization to arrest for a

traffic violation. (State v. Pierce)

o This case was decided BEFORE Acevedo, otherwise, cop might haveused the automobile exception.

o Trunk would still be off-limits. Thornton v. US: (D exits stolen car as officer pulls up, consents to pat down; officer

feels bulge in pocket, D admits to having drugs. Officer arrested him, searched back

seat of car, found a gun.) Ct says that once officer has probable cause to make an

arrest, it is reasonable for them to search the ENTIRE passenger compartment, to

preserve evidence/safety.

Belton applies both to occupants AND recent occupants of a car, evenwhere officer does not make contact until person has left the vehicle. No

reason to say that in this case, the area of the car was beyond Ds control.


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o NOTE:Arent we just supposed to be looking for items immediatelyaccessible to D?

DISSENT Scalia: Search is justifiable bc of possibility of drugs being located,w/o resort to a categorical rule.

Arizona v. Gant: (D was driving w/ suspended license; cops arrested him, put him inback of patrol car, then searched Ds car, found coke andgun.) Ct said that the

search here was unreasonable; Drawing back from Belton, looking more at

individual cases; adopting Scalias view from Thornton dissent.

Ct maintains the twin Chimel rationales.o (1) PROTECTION: Search incident to lawful arrest can be affected

only where the guy is left unsecured and w/in reaching distance at

time of arrest.

o (2) DESTRUCTION OF EVIDENCE: Can only search if the officer hasreason to believe that there is evidence in the car to support the

crime for which D is being arrested.

NOTE: This would have provided a basis for BOTH Beltonand Thornton.

NOTES:o Why is this just reason to believe, not probable cause?o Why is it limited to crime for which D was arrested? If this were a

traffic stop, it would basically prohibit searching the interior of the

car at all.

DISSENT Scalia: Should rationalize searching the car to find evidence forwhich D is arrested, or other crimes if there is probable cause.

o NOTE: Could this lead to more house searches, less car searches? Knowles v. Iowa: Officers CANNOT conduct search of vehicle where they are just

issuing a citation and not arresting. (Threat to the officer is much less in this

situation.)

Virginia v. Moore: (State outlawed arrests for driving w/a suspended license, butcops arrested D.) See Atwater.

Colorado v. Burtine: Inventory search was deemed permissible because it served to


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protect owners property, let cops know what is in the jail, and to protect cops from

claims of lost stolen or vandalized property.

Evidence gathering is very significant after arrest.o But if Scalia is correct, in that the purpose of search incident to

arrest is just gathering evidence to support the arrest, wouldnt this

allow too much?

o Likely that we will have a ct saying that when the guy is in custody,you need another justification for the doctrine.

REASONABLENESS: (ADMINISTRATIVE AND INVENTORY SEARCHES)

One view of 4th

is that (probable cause + warrant) make a search reasonable. Another view says that for

a search and/or seizure to be valid, all it must be is reasonable.

Camara v. Municipal Court See v. City of Seattle

o Both of these cases essentially involved police power; If a housing inspector getting intoa house to inspect is a search, how does the 4th apply?

Traditional probable cause scheme wouldnt work in these situations. Ct in Camara develops a reasonableness test: Assuming that your regulations

are reasonable, then the officer WOULD have probable cause.

o Notice that in criminal cases, Prob Cause + Warrant = Reasonablenesso In this context, however, Reasonable Regs + Warrant = Prob Cause

STOPS AND FRISKS: Cops have the most discretion, bc they choose who to arrest.

Winston v. Lee: (search for bullet lodged in D was unreasonable; cops had various other ways toestablish guilt) In 99% of the cases where there is a warrant and probable cause, there is

reasonableness. However, this is not always the case, as in this situation.

Terry v. Ohio: THIS CASE CHANGES THE NATURE OF CITIZEN-POLICE ENCOUNTERS. (Experiencedofficer watches 3 guys who seem to be casing a jewelry store; he can arrest them, or investigate.

He stops/frisks Terry, feels the butt of a gun.) Ct rejects cops argument that 4th

doesnt apply,

however, it also rejects Ds requirement of a warrant based on probable cause. If you want the

cop to act in this situation (which we do) we have to create a new rule.

o RULE: (This is TWO TESTS!!) (1) If there is reasonable suspicion that D is committing or is about to commit


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a crime, the officer can effectuate a stop, which is a seizure.

The basis for the stop/seizure is broader than the basis for the frisk. (2) Where there is reasonable suspicion that the person is armed and/or

dangerous, you may pat him down.

This is a frisk ONLY FOR WEAPONS, and ONLY OF THE OUTER CLOTHING.o NOTE: Just bc you order someone out of the car, which = a seizure, the law does not

justify the search.

PA v. Mimms Allows the cops to order the driver of the vehicle out of the car.Stop of the vehicle is a seizure, and asking the driver to get out of the car is de

minimis.

MD v. Wilson Mimms rule is the same for passengers. AZ v. Johnson If you want to frisk the passengers, you still need reasonable

suspicion that they are armed/dangerous; can ask about matters unrelated to

the stop, so long as it doesnt measurably extend it.

o In determining officers reasonableness, due weight must be given, NOT to a hunch, butspecific reasonable inferences he is entitled to draw from the facts based on his

experience.

o Not only are we dispensing w/ a warrant, but also w/ probable cause: Dispensing with the warrant bc of the element of exigency, in that the cop

believes that a robbery is about to take place;

Dispensing with Probable Cause bc we want proactive policing, in that if yourequire probable cause, the officer in Terry will wait for the crime to be

committed.

o Govt interest in finding/prosecuting crimes vs. reasonableness of the disruption ofprivacy/individual interests:

This balance FAVORS the government when you HAVE probable cause. A Stop & Frisk, as opposed to Seizure & Search, is brief and limited on

the individual side. On the government side is crime prevention, cop

protection, which outweighs the individual interests where there is a

reasonable suspicion that they are at stake.

Terry introduces this idea of balancing, Boyd had no balancing at all.


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Difference is that in a Terry determination, the cop is making thediscretionary decision, whereas in the traditional paradigm it is the

neutral magistrate making the determination

Terry also applicable to crimes that have been committedits much broaderthan just preventing crimes, it is also used for investigation.

When should Terry be used over the traditional paradigm? (1) How similar is the situation to a traditional arrest?

o Dunaway v. NY: (Suspect taken to police station, w/o probable cause, not arrested, buttold he was not allowed to leave.) Ct DECLINED to extend Terry to cover all seizures

short of a technical arrest that would swallow the 4th

.

For situations FAR SHORT of an arrest, Terry Reasonableness applies.However, when the situation is much closer to being an arrest, then the

traditional paradigm applies.

o Florida v. Royer: (guy matched drug courier profile, was taken to a room, had to handover the key to his luggage.) Ct said the drugs should have been suppressed bc D being

brought to the room was a more serious intrusion than was justified under mere

suspicion.

(2) How long does the stop last?o US v. Place: (bags of guys suspected of carrying drugs were seized, transported,

subjected to sniff test, all of which took 90 min.) Ct said that although Terry authorized

the initial seizure of the luggage, the extended amount of time the transport/sniff

required violated the 4th.

NOTE: Different result re: seizure than Hicks bc of special law enforcement needto intercept drugs at airport.

o US v. Sharpe: (20 min after being pulled over, cops smelled weed in the camper.) Ct doesNOT impose a bright line rule, but rather says the time must be reasonable, taking into

account the diligence of the cops in investigating in a manner which would confirm or

dispel suspicions quickly.

(3) Did the search extend beyond a frisk/involve police safety?o Michigan v. Long: (Cops stop to investigate a car accident. D gets out to meet the cops,

leaves car door open, cops saw a large hunting knife inside; did a pat down, shined a


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flashlight in the car, and saw drugs.)

Does Terry support this kind of frisk to the car? YES; search of passenger compartment, limited to areas a weapon may

be placed/hidden, is permissible if police have reasonable suspicion to

believe that the suspect is dangerous and may gain control of the

weapons.

Plain Statement Doctrine If a state is deciding one of these 4th amendquestions, using the provision from its own constitution, it should say this

plainly, to prevent the SC from reviewing it.

o Minnesota v. Dickerson: (Officer frisked, felt something in Ds pocket he knew wasnt agun, but thought it was drugs.)

There is a Plain Feel doctrine, just as there is a Plain View doctrine, but inthe Terry context, plain feel only extends to weapons.

Terry frisk is for weapons; if it doesnt give officer probable cause tobelieve its a weapon, then the search should be over.

NOTE: For police safety issues, you essentially have a rule that conforms to whatcops would do if there was no rule.

THE MEANING OF REASONABLE SUSPICION: Comes from Terry; lesser substantive standard.

Alabama v. White: (Cops received tip that D would be in a particular car, driving down aparticular road, carrying drugs.) Where there was corroboration of informant, future predictive

behavior, under totality of the circumstances there was sufficient reliability to justify stop of the

car.

o When we are dealing w/ reasonable suspicion, reliability of the informant/basis ofknowledge is relevant, but not necessary.

o If probable cause means a fair probability, then reasonable suspicion meanssomething less than that.

Florida v. J.L.: (Tip that guy in plaid shirt would be at a bus stop carrying a gun. Cops frisked himand found a gun.) This anonymous tip lacked the moderate indicia of reliability that was present

in White; Ct wanted something more, such as predictive behavior.

o Note that its the STOP here that violates the 4th, not the frisk. US v. Arvizu: Cop suspected van of carrying drugs bc of how the children waved, their feet were


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resting on something, van was a type likely to have drugs, etc. Ct said there WAS reasonable

suspicion here.

o Just describing a person isnt enough to make it reasonable under Terry.o Is the 4th more about reasonableness than warrants and probable cause?

Illinois v. Wardlow: (Guy holding an opaque bag in drug trafficking area, takes off running atsight of cops.) Similarities with Hodari D.; both ask whether running justifies police intrusion.

o In a high crime area, unprovoked flight seems to constitute reasonable suspicion.Neither the area, nor running alone are enough.

NOTE: State v. Tucker might be reasonable in NJ to run past cops.o NOTES:

Compare the specificity of the suspicion in Terrywith WardlowDoes this casepermit reasonable suspicion of just crime in general?

Evaluation of totality of the circumstances, plus cops look at things differentlythan the reasonable person?

Do members of minority groups have a different perspective on cops based onhistory, etc.? Terry is one of the few cases in this area that actually addressed

race.

POLICE DISCRETION AND PROFILING: There are times when race is relevant, i.e. when searching for a

suspect. But should the 4th concern itself w/ profiling?

US v. Sokolow: Just bc factors cited by cop in making Terry stop make up a profile, profiling doesnot detract from a stop.

US v. Whren: (Guy stopped at stop sign for an unusually long time. Cops pulled a U-turn, carsped off, cops followed him until he made a minor violation, stopped him, saw drugs.)

o Individual police officer motive is irrelevant to 4th amendment probable causeanalysis. There was probable cause for the stop here, ct is not going to inquire into the

police motive, bc it puts them in the position of determining which ppl cops should pull

over, etc., and are courts really the institution to be determining what the reasonable

cop would do?

4th amendment is concerned with probable cause, not equal protection. (If thiswere an EP claim, you would have to show the motive of the officers, which

would be very hard to do.)


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o What if we just exclude the evidence in instances of profiling? The Achilles heel of the exclusionary rule is that it is one thing to exclude when

the cop violates the 4th amendment, however it is another thing to exclude

when the cop does NOT violate the 4th amendment.

Chicago v. Morales: (Cops issuing dispersal order to gang members.) Concern is that the morewe criminalize, the more choice/discretion is given to cops, and therefore more power to

profile.

o Cts approach is Vagueness Doctrine But the problem w/ this is that the leg can justgo back a draft more specific law.

Probable cause does not exist in a vacuum; the substantive criminal statute might be moreimportant than the 4th amendment.

o Welsh distinguishing btwn types of crimeso Terry tying it to reasonable suspiciono But not all crimes qualify

SPECIAL NEEDS: ALTERNATIVES TO PROBABLE CAUSE AND REASONABLE SUSPICION

Balancing of special needs seizures:o (1) The gravity of the public concerns served by the seizureo (2) The degree to which the seizure advances the public interesto (3) The severity of the interference with individual liberty

Hiibel v. Sixth Judicial District Court of Nevada: (Officers responded to a call reporting a manassaulting a woman; officers arrived on the scene, found Hiibel drunk; asked to see his

identification, he refused, started taunting the officers; they placed him under arrest.) Hiibel was

charged with obstructing the officer in discharging his duties by refusing to comply with NVs

stop and identify statute.

o Def. Arg: Arresting someone for refusing to give his name is a violation of the 4thAmendment; NV statute is circumvention of the 4th Amendment because it allows

officers to arrest a person for being suspicious.

o Rule: Reasonableness of a seizure under the 4th is determined by balancing itsintrusion on the individuals 4th Amendment interests against its promotion of

legitimate government interests.


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NV statute satisfies the standard above; officers request was a commonsenseinquiry, NOT an effort to obtain an arrest for failure to identify after a Terry

stop yielded insufficient evidence.

Brown v. Texas: (Court invalidated a conviction for a similar stop and identify offense.) Thistime though, the initial stop was not based on reasonable suspicion like it was in Hiibel

ROADBLOCKS:

When the govt stops a car, it is a seizure under the 4th.o With a roving patrol, you need reasonable suspicion, as the seizure is more

individualized than a checkpoint where every car is stopped.

Cannot just be bc of race. Arvizu was roving patrol/reasonable suspicion.

o When is it permissible to intrude w/o individualized reasonable suspicion? What is the primary purpose? Are people being singled out?

US v. Martines-Fuentes: Approved the suspicionless stopping of vehicles at a permanentcheckpoint on a highway leading away from the Mexican border NO LEVEL OF SUSPICION

REQUIRED.

o Govts power to police borders has a huge interest in who/what enters the country. Itis still a balance, but private interest is outweighed by govt.

Delaware v. Prouse: Declined to permit random, suspicionless police stops of automobiles tocheck drivers licenses and registrations

o Noted that it was not preventing states from developing methods for spot checks thatinvolve less intrusion

MI v. Sitz: Approved suspicionless police roadblocks to check for drunk drivers.o Court emphasizes that this was for the safety of motorists, which is why it is

constitutional. Government interest in preserving life outweighed the private intrusion.

(Rationale similar to Martinez-Fuentes.)

NOTE: if only 1.5% of ppl stopped were drunk, is this really in the public interest? Indianapolis v. Edmond: (City conducted series of roadblocks, in which, according to a certain

sequence, cars would be pulled over, officers tell the driver that its a drug checkpoint, look for


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signs of impairment, conduct an open-view examination of the vehicle from the outside, and a

narcotics dog walks around the stopped vehicle.) Court fears that the primary purpose of

checkpoint was to detect evidence of ordinary criminal wrongdoing. Although a higher % of ppl

than Sitz were arrested, ct says NO to this type of checkpoint.

o Police cannot set up roadblocks for general crime control purposes, stops must bejustified by some quantum of individualized suspicion. You cannot construct a

roadblock to see whether people are committing various crimes.

Seems inconsistent with Terry in terms of police being proactive. NOTE: Privacy interest of driver does not really vary w/ the nature of the stop,

i.e. whether its for drugs or alcohol.

Remember Place a dog sniff is not a search.o Pet. Arg: Whren suggests that inquiry into purpose of checkpoint is irrelevant.o Rehnquist dissenting: Roadblock seizures are consistent with the 4th Amendment when

they are carried out pursuant to a plan embodying explicit, neutral limitations on the

scope of the stop.

o NOTE: Is Edmonds inconsistent w/ the idea that drug trafficking is the type of crime wewant cops to be proactive about?

Illinois v. Lidster: (Police looking for driver in a hit-and-run. A week after the incident, in thesame place, at approximately the same time, officers set up a checkpoint to obtain information

from motorists who might have seen something. Lidster nearly hit an officer. They pulled him

over, smelled alcohol on his breath and arrested him.)

o You CAN be stopped for a crime investigation when no one is singled out. Checkpoint WAS reasonable bc govt interest outweighed private intrusion.

o An Edmond-type presumptive rule ofunconstitutionality doesnt apply here: Not needed to prevent unreasonable proliferation of police checkpoints in this

situation, i.e. not as much of a slippery slope fear.

When cops only stop one person, that is a targeting harm. In this type ofroadblock, harm that comes from individualized suspicion goes away.

REASONABLENESS AND POLICE USE OF FORCE:

Talking about how cops are permitted to seize i.e. even w/ a warrant and probable cause,there still must be an element of reasonableness.


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CONSENT SEARCHES: Consent means that the search is reasonable. Asking for consent does NOT require

any articulable suspicion.

Schneckloth v. Bustamonte: (Car gets stopped, driver consents to search, stolen checks arefound.) Ct assessed the totality of the surrounding circumstancesboth the characteristics of

the accused and the details of the interrogation

o Must show that consent to search was freely and voluntarily given, but need NOTshow that it was knowing and intelligent. If proven, it makes the search reasonable.

NOTE: If you are in custody, the search can take place without consent.o Cops do NOT need to tell you that you have the right to refuse to consent.

Requiring the state to affirmatively prove that D knew he had a right to refuseconsent, would, in practice, create serious doubt whether consent searches

could be conducted.

The Mendenhall factors would also be highly relevant in this situationo The consent still must be voluntary, though.

In determining whether consent was voluntary, must accommodate both thelegitimate need for such searches, and the equally important requirement of

assuring the absence of coercion

o Marshall dissenting: It is meaningless to say that someone has shown consent to besearched when he did not know that he had any other option. Believes that the burden

would most fairly be placed on the prosecution.

NOTE: Should the cops be required to tell you? Research shows that even theydid, it wouldnt make a difference in consent rates. (If a cops asks you, do you

feel like you really have a choice?)

Consent v. Miranda: Are they backwards?o 2 rights are implicated in consent doctrine, only 1 in Miranda doctrine. (4th and 5th in

consent, but only the 5th in Miranda cases.)

o Consent doctrine is important bc it comes up so often in motor vehicle stops. Goes backto Brandon police discretion and potential for discrimination

NJ changed this to search a car there must be reasonable suspicion outside ofthe stop that a search would reveal evidence of criminal wrongdoing in order to


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consent to search. (State v. Carty)

Also in NJ, before an officer asks consent to search your car, he must tell thatyou have a right to say no. (State v. Johnson)

OH v. Robinette: 4th amend does NOT require cop to tell motorist at the end of traffic stop thatthey are free to go before asking permission to search their car, in order for subsequent consent

to be considered voluntary.

o It would be unrealistic for a police officer to always inform detainees that they are freeto go before a consent to search may be deemed voluntary

3RD PARTY CONSENT:

US v. Matlock:o Theory is that when you share a space w/ someone, there is an assumption of risk that

they will let cops in to search.

Just like US v. White you assume the risk that what you disclose to a party willbe disclosed to a 3rd party, including the police.

It really depends on the circumstances, and who has control over the area thatthe cops would like to search.

i.e. If you have a boarder or something. IL v. Rodriguez: (Officer reasonably believed that guys girlfriend was a cotenant.)

o RULE: You only need to have apparent authority Reasonableness does not require factual correctness: Cop doesnt have to be

correct, his actions just have to be reasonable.

GA v. Randolph: (Husband refuses search @ door, wife consents to it at same time.) Ct said thatentering anyways was unconstitutional.

o This case only draws a very fine rulethe objector must be there at that time,objecting.

oCt is shifting away from assumption of risk towards social expectations:

Overnight houseguestsocial expectation is that we wouldnt let someoneenter that the guest didnt want to be there.

But is this really an accurate statement of social expectations? Are theseexpectations always that clear?

o DISSENT: In Frazier v. Cupp,its a shared dufflebag.


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o How does Randolph make sense in light of cases like Matlock? (arrested resident was ina squad car nearby after being arrested when consent from a co-resident gave consent

to the police to search the premises; ruled constitutional)

What if you stepped into another room? How is this fair, how is it a reflection ofsocial expectations?

Why not say in this case that for 3rd party consent, you need some reasonablesuspicion.

Like the idea ofTerry, before you go in? Consent can be limited:

o FL v. Jimeno: Did the consent to search the car include opening a closed bag in a car? Ctsaid that it WAS reasonable to believe when consent was given that it included any

containers within the car.

The standard of measuring the scope of a suspects consent under the 4thAmendment is that of objective reasonablenesswhat would the typical

reasonable person have understood by the exchange between the officer and

the suspect?

A suspect can delimit as he chooses the scope of the search to which heconsents

Ct distinguishes btwn having a closed bag and a locked briefcase. Saying that the cop cant open a bag shouldnt give the cop reasonable

suspicion, bc otherwise, you wouldnt be able to limit consent ever.

NON-POLICE SEARCHES: 4th

amend is not exclusive to criminal cases; it can be applied to any govt actor

who invades a persons reasonable expectation of privacy.

LIMITS ON THE EXCLUSIONARY RULE:

(1) Good faith Exception: Exclusionary rule does not apply (2) Standing: Limits the set of defendants who can invoke the exclusionary rule.

o TEST: D must show that the cops did something illegal to him.


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(3) Fruit of the Poisonous Tree: Places boundaries on the evidence that can be suppressed dueto an illegal search.

o TEST: Illegality caused police to find something that D seeks to suppress? (4) Impeachment Doctrine: Limits the degree to which excluded evidence is actually excluded

(1) GOOD FAITH EXCEPTION:

(2) STANDING:

Requirements:o Step 1: Defendant must show the cops did something illegal to him or hero Step 2: that illegality ended up allowing the police to find evidence (fruits)

Who gets to raise the 4th Amendment claim?o Original rule was that it must be someone subjected to a search or seizureo Then court brought in legitimately on the premises you were protected

Rakas rejected thato NOTE: If the idea of the exclusionary rule is not constitutional, but only a rule created by

the court to deter the police, doesnt matter whether you give it to A, B, or C.

But a result of standing is that you get police acting strategically. (Payner)

(3) FRUITS OF THE POISONOUS TREE:

Suppression of Fruits TEST:o (1) Like in torts, first ask whether, but for the illegal search the evidence in question

would have been found. (Cause in Fact)

(A) Was evidence obtained via an Independent Source? If so, cops violation is NOT the Cause in Fact, Fruits doctrine wouldnt

apply, not suppressible. (B) Would the evidence be Inevitably Discovered?

Basically, even if cops engaged in this illegal conduct, as they continuedacting/searching legally, would they have discovered the evidence

anyways? If so, then not suppressible.

Standard is preponderance of the evidence.


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o (2) Then look to attenuation i.e. whether the taint of the illegal search had dissipatedby that time? (Proximate Cause)

Rationale for including but for causation: Dont want the cops to be in a worse position thanthey would have been anyways

o Keep in mind, however, goal of this doctrine/remedy is to deter the police from illegalsearches.

Wong Sun v. US: (Agents got a tip from Way, proceeded to Toys. Toy answered the door andfled; agents followed him inside, arrested him after seeing him flee. Toy made incriminating

statements at scene of his arrest, which led cops to Yees home, found heroin in his bedroom;

shortly afterward, Yee made statements incriminating Wong Sun. Later, some time after Toy and

Wong Sun had both been arraigned, agents interrogated both men; both made incriminating

statements during the course of those interrogations.)

o Evidence against Toy: Statements: Toys first statement implicating Yee Toys second statement in police custody (aka confession) Drugs found at Yees, which police are trying to link to Toy.

o Evidence against Wong Sun: Statement made by WS in police custody (aka confession) Drugs found at Yees

o Primary illegality is the entry into the home and the seizure of Toy. (Toy has standing bcthey violated his rights by entering.) Ct is satisfied that Toys statement came out as a

result of the illegality.

Discovery of the heroin at Yees is a direct result of the primary illegality ofseizing Toy at his home.

Accordingly, no probable cause as to Toy, not like Draper and those cases.o Attenuation: However, Wong Suns statement was sufficiently attenuated as to

dissipate the taint of the unlawful arrest, and cannot be suppressed.

He had returned voluntarily to give the statemento Standing: Wong Sun also has a standing problem regarding suppression of the drugs.


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HYPO: Police search As house illegally. They find no evidence of a crime, but they find Bsaddress. Then Bs house is searched illegally and evidence is found.

o B clearly has standing.o A has standing too bc it was the illegal search of his house that led to the piece of paper

leading to the illegal search at Bs.

However, note that if the original search of A s house was legal, andsubsequently an illegal search of Bs house turned up evidence against A, A at

this point would lack standing to suppress.

US v. Ceccolino: (Attenuation/Proximate Cause Case) Illegal search of an envelope, via whichcop discovers the name of a witness, who later testifies.

o Testimony of the witness SHOULD be suppressed bc of attenuation: Who knows why a witness testifies? Difference btwn testimony and evidence.

Murray v. US: (Cause in Fact/Independent Source Case) Cops illegally break into a warehouse,see drugs, THEN go to a judge and apply for a warrant. They do NOT tell the judge that they had

broken into the warehouse, presumably used outside evidence to support the warrant. They get

the warrant, go back and seize the drugs. D says this is the fruit of the poisonous tree. Remanded

to the factfinder to determine whether the warrant authorized search of the warehouse would

have occurred if not for the warrantless intrusion

o In this context, both (1) the decision to seek the warrant, and (2) the warrant itself,must be from independent source.

Does Murray give cops and incentive to engage in warrantless searches, in thatyou go in, and if you dont find anything, just leave, and if you find something,

whats to prevent you from making up a reliable informant or something?

Could look at this case as saying that police testimony is presumptively truthful. Independent Source vs. Attenuation:

o Major difference is that in attenuation, you are talking about the strength of the causalconnection btwn illegality and discovery, and in independent source, saying there is no

connection.

Attenuation involves the illegality, but we excuse it by saying its too remote. Independent source, we say that there was a legal basis for the cops finding this


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evidence.

Hudson v. Michigan: (Attenuation Case) Knock and announce case Cops had warrant to findguns, but only waited 3-5 seconds before entering home, not long enough to make the search

reasonable. (Remember Banks one flush rule)

o Attenuation also happens when given a direct causal connection, the constitutionalviolation would not be served by the suppression of the evidence obtained. (i.e.

Where the interests violated in a case have nothing to do with the seizure of the

evidence, the exclusionary rule is inapplicable.)

Interests violated in this case have nothing to do with the seizure of theevidence exclusionary rule is inapplicable. While acquisition of the gun and

drugs was the product of a search pursuant to warrant, it was not the fruit of

the fact that the entry was not preceded by knock and announce

Cost benefit analysis comes out in favor of the govt. Also, if cops have reasonable suspicion of danger or drugs or futility, then they

dont have to knock at all, so then this logically doesnt line up.

(4) IMPEACHMENT DOCTRINE:

US v. Havens: (During cross-examination, claims no involvement.) Ds statements in response toproper cross-examination, reasonably suggested by the defendants direct examination, ARE

subject to otherwise proper impeachment by the government, albeit by evidence that had

been illegally obtained and is inadmissible.

o Tainted evidence, inadmissible when offered as part of the governments main case,may not be used as rebuttal evidence to impeach a defendants credibility unless the

evidence is offered to contradict a particular statement made by a defendant during

his direct examination.

Effect is to keep D off the witness stand. Illinois v. James:

o Havensis limited to D, does NOT apply to Ds witnesses. Expanding the impeachment exception would chill some defendants from

calling witnesses who would otherwise offer probative evidence

o Are James and Havens consistent?


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Seem inconsistent, but what happened is probably that the ct picked up anothervote.

Looking at the 3 together:

Standing, fruits and impeachment seem to all have the same arguments: Defendant in all 3doctrines is saying the police should not benefit at all from the violations because then the cops

will have an incentive to do so.

o Standing: You can use the evidence in standing against others. Govt wins this one; they can truly act strategically.

o Fruits: You can use some of the illegally seized evidence for fruits depending onattenuation.

D at least gets to suppress some of the evidence.o Impeachment: Keeps the defendant off the witness stand, but not any other witnesses.

Ct really splits the baby with this one. Is this wise? Turns on whether you know if cops are actually acting strategically.

Maybe this is why the ct compromises, bc you cant really figure this out

sometimes.


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FIFTH & SIXTH AMENDMENTS (Interrogation and Confessions)

We are only concerned w/ the 5th

amendment privilege: No person shall be compelled in any criminal

case to be a witness against themselves. Basically, the govt should not force ppl to make choices that

tend to criminally implicate them.

Judge determines whether privilege applies. Statement by D does NOT have to be a confession to be protected. Any answer to any

question that provides a link in the chain that leads to the evidence, or that implicates a

witness.

o You must assert this privilege. Only works in the criminal case where the potential statement would be used. Can certainly

assert it in a civil context, if there is the potential for it to be used in a criminal case.

o Violation doesnt occur until the evidence is used at trial.How does this affect how the govt investigates crimes?

Where the best source of information is a person implicated in the crime. Far-reaching drugconspiracy want to question the ppl on the street. What do you do?

o Grant them immunity. 2 kinds of immunity:

Transactional Immunity: Immune from any crime that thetestimony is about. No one really does this anymore.

Use/Fruits Immunity: Cant use the testimony or fruit of it againstthat person. Would need independent info from another source to

prosecute the person.

Kastigar v. US (pg. 722)3 parts to the 5th:

(1) Compulsion: Comes from no person shall be compelled language.o Typically compulsion comes from the idea that if you refuse to testify, held in

contempt.

Griffin v. CAYou CANNOT comment on Ds failure to testify. D is evenentitled to a jury instruction against it, if the defense wants it.

(2) Incrimination: Comes from the criminal case language. (3) Testimony: Comes from the witness language.

o HYPO: D refuses to give a blood sample. Can he assert the 5 th? NO, this refusal isadmissible at trial.

Schmerber Says that the 4th applies to physical things, and the 5th appliesto testimonial.


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Limits on the 5th: 5th can sometimes give way to other kinds of social issues

Bouknight (pg 751) Evidence was childs body

POLICE INTERROGATION

THE MIRANDA REVOLUTION:

We want reliable statements, and so we question the voluntariness of the statement. Also, we dont

want cops engaged in abusive tactics to elicit statements. Court grapples with Reliability, Voluntariness,

and culminates with Miranda.

Bram v. US (pg. 760) (shortly after Boyd) Bram was accused of a crime, and was stripped during

interrogation.

HOLDING: This violated the 5th bc his confession WASNT voluntary; i.e. he was compelled!o Inherent compulsion: Normal stuff related to fear after the crime.o Implicit Promises: He was also promised something, like, things will go better.

Analogy to Boyd, with the invoices:o Not a case about govt coercion, but about maximizing individual automony.

Today, we have plea bargains; This would NOT work in a system with Bram this essentially cuts of ALL

police interrogation.

Bram applied ONLY to the federal courts, bc this was before incorporation of the 5th to thestate in Hogan v. Malloy.

Cases that shifted the focus to the

Brown v. Mississippi (pg. 762) Shifted the focus to the due process clause.

Ashcraft v. Tennessee (pg. 763) Relays of interrogation.

Watts v. Indiana (pg. 764) solitary, no hearinfs.

2 approaches to these cases:

(1) Coercive effect on Do How much force is too much? No test for this.

(2) or Police ConductBasically, there is a line, and at one end there is no pressure at all, and at the other, there is true torture.

The cases at either end are easy, the confession is either in or out. It is the cases in the middle that are

tough.

Massiah v. US (pg. 767) D and his buddy had been indicted, buddy was bugged, and D incriminated

himself. Ct uses a 6th

amend approach here.

Documents

Crim Pro Outline CG