I. INCORPORATION AND DUE PROCESS OF LAWA. Rochin v. California

i. Facts: Police break into apartment, bedroom; Rochin swallows two pills on nightstand. Police try to make him throw them up; take to emergency room, forcibly have his stomach pumped. Tablets had morphine; Rochin convicted.

ii. Holding: Due process is a Constitutional guarantee of respect for those personal immunities which are 1) so rooted in tradition to be ranked as fundamental, and/or 2) implicit in ordered liberty. Admit there’s no formal exactitude, but it’s more that fastidious squeamishness at over-energetic prosecution of crime. Does 1) police behavior shocks the conscience and/or 2) whether it offends canon of decency and fairness of English-speaking peoples.

iii. Concurrence: Standards too nebulous; provides little guidance for police behavior. Standards for the1st Amendment are very clear; wavering standards nullify the bill of rights. Should have used the 5th Amdment.

iv. Is Rochin still good law? Comes up in abuse of power situations not covered by other provisions; has to involve coercion, physical brutality, or violence. Very limited.

B. Incorporationi. Federalization of criminal law fairly recent phenomenon; all prosecutions at state

level. Raises questions of the guarantees provided by the bill of rights against the federal government—what about the states?

ii. Is the Bill of Rights Applicable to the States?1. Bill of Rights adopted against federal government2. Confirmed by Barron v. Baltimore (1833)3. Debate about 14th Amendment—whether by its own text is applied to

states. If so, which clause?a. P&I clause: Slaughterhouse Cases – “no” for P&I clauseb. Due Process?: Three theories about due process

C. Three Theories of Due Process Making the Bill of Rights Applicable to the Statesi. Fundamental Fairness: Frankfurter (Rochin), Harlan (Duncan)

1. DP evidenced by, but not confined by, BOR. May evolve2. Formulations:

a. implicit in ordered liberty, shocks conscience, canons of decency & fairness

b. Means for supervising state criminal procedureii. Total Incorporation: Black (dissent in Rochin)

1. BOR totally applicable to states2. Faithful adherence to BOR insures a more permanent protection than

nebulous standards in Rochin majorityiii. Selective Incorporation:

1. Compromise: rights not automatically incorporated, but once they are, the state right mirrors the federal right

2. Formulationsa. Original: whether civilized system could be imagined without

the protectionb. Today: Whether protection is necessary to an Anglo-American

regime of ordered libertyD. Duncan v. Louisiana

i. Facts: Louisiana didn’t allow a jury trial for lesser offenses. Defendant requested, denied, and convicted. Sentenced to sixty days in jail.

ii. Issue: Whether 5th/6th amendment applies to states so that defendant entitled to jury trial?

iii. Holding: Defendant entitled to jury trial. Court asking whether a right is among those fundamental principles of liberty and justice; using fundamental rights theory. Court sees no distinction between types of offenses; looks at “past and contemporary standards” to determine what is a serious crime versus a petty offense.

iv. Dissent: (Harlan) Due process clause doesn’t require uniformity among states. This decision applying federal standards to areas of state power. Disagrees with total incorporation. Argues for selective incorporation.

E. Hypotheticals: Police in home; wiretap. Historically tradition of privacy Physician assisting police taking blood of unconscious man in fatal car accident Cavity searches near border

F. Theories behind debate:i. Ghost of Lochner—Black thought this era was court intervention by subjective

ideas; Frankfurter had more faith in judges and what the court learned from Lochner.

ii. Federalism—Frankfurter championed states rights, states are laboratories; Black—nationalist, wanted consistent federal law

iii. Scope of Judicial Review—Black had no problem with federal supervision of incorporation. Frankfurter had problems with this approach.

G. Selective in Theory, Total in Fact?i. Nearly all incorporated, including:

1. 4A: search/seizure, (Wolf), Exclusionary Rule (Mapp)2. 5A: double jeopardy, no self-incrimination3. 6A: jury trial (Duncan), speedy trial, public trial, compulsory process for

witnesses, assistance of counsel4. 8A: cruel/unusual punishment

ii. Not incorporated:1. 5A: Right to indictment by grand jury2. 8A: Excessive bail. Not decided.

H. Review materials on aspects of theory, pp.47-48 in Dressler.

II. FOURTH AMENDMENT: SEARCH AND SEIZUREA. Text

1. The right of people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

2. Biggest issue of concern is how the reasonableness clause and the warrant clause fit together.

B. Exclusionary Rule: Remedy for Violation1. Development

a. Weeks v. United Statesi. Holding: Evidence obtained through illegal search and seizure cannot be used in

a federal prosecution.b. Wolf v. Colorado

i. Facts: In a state prosecution, evidence obtained through illegal search used as evidence. This evidence, under Weeks, would not have been allowed. Def. was convicted.

ii. Issue: Does a state conviction deny due process of law under the 14th Amendment if evidence that was obtained in violation of the 4th Amendment (and wouldn’t be admitted in federal court) used to convict?

iii. Holding: Federal exclusionary rule is not binding on the states. Exclusion is not fundamental to the concept of ordered liberty. It is one means of deterring illegal search/seizures, but states are free to create own remedies. (Decision based on privacy being fundamental, but that there are different ways of enforcing that right)

iv. Dissent: There is no real alternative remedy to exclusion. Exclusion is only means of deterring illegal search/seizures.

iv. Notes: Avoids the question of whether the 4th Amendment applies to the states. The court looks at the number of states following Weeks to reach its decision, as well as other countries to see how many exclude evidence. None do—they use other remedies. In Elkins, court closed loophole of Silver Platter—state officials handing evidence over to the feds

c. Mapp v. Ohioi. Facts: Police forcibly went into house and conducted a warrantless search of

premises. Looking for a bombing suspect, but found pornography. Convicted with evidence obtained.

ii. Issue: Can evidence obtained during an unlawful search and seizure be used in a state trial?

iii. Holding: All evidence obtained by search/seizures in violation of the Constitution is inadmissible in state court. Use judicial integrity, deterrence as rationales. Exclusionary rule is of constitutional origin.

iv. Dissent: “Voice of power, not reason,” because Mapp didn’t even raise the 4 th Amendment issue, and the court used the case as an opportunity to reverse its Wolf holding. Stop hindering states in their own law enforcement efforts.

d. Epiloguei. Empirical research inconclusiveii. Anecdotal data from Chicago (maj. believed that exclusionary rule beneficial)iii. Individual vs. Systemic deterrence

1) Individual deterrence not so much: not in cop’s mind at time, often not excluded until years later.

2) Systemic: Might work better in this regard2. Rationale of the Exclusionary Rule

a. Deterrence—by removing the incentive to disregard Constitutional guaranteesb. Judicial Integrity—first mentioned in Mapp, meaning that to allow introduction of

illegally obtained evidence would mean judicial neglect of Constitution. i. This approach is minimized in subsequent decisions.ii. Minimization makes sense, because it’s a moral imperative—court will later do

cost-benefit analysis for exclusion, and judicial integrity cannot be analyzed that way.

iii. If this requirement were to be taken seriously, there would be no standing requirement.

3. Arguments about the Exclusionary Rulea. Tremendous amount written on the exclusionary rule. A few arguments, pro/con

i. “framers meant the constitution to be more than it says;” constitutional dynamism

ii. Exclusionary rule operates after violationiii. Critics oppose it because it results in too many criminals being set free. It’s too

effective.

iv. What is the cost-benefit of the rule? Some say can’t quantify, others say you shouldn’t even ask.

v. Does the rule protect the wrong people? Innocent people benefit too, in diff wayvi. Exclusionary rule implicated in very small number of cases—GAO studyvii. If public is outraged because people are going free on “technicalities,”

responsibility actually lies with government who violated Constitution.viii.Results in disproportionate punishment; the “penalty” for police misconduct is

often disproportionate to the “crime” committed by the police. Applies to both good faith and bad faith actions by the police. Also doesn’t distinguish between trial for small crime and biggies. Response: not intended as compensation to the victim, but deterrence for cops.

ix. Better remedies are out there. Amar says court has distorted remedies; should be tort for violation (constitutional tort). Response: exclusion is the best we can do. Problem is practical application of non-exclusionary rule. Would alternative be sufficient deterrent?

4. Applicabilitya. Good Faith Exception—court may not require exclusion when evidence obtained by

good faith.b. United States v. Leon

i. Facts: Police executed facially valid search warrant, but at trial, court found that warrant was invalid because it wasn’t supported by probable cause.

ii. Issue: Should exclusionary rule be modified to allow exception for evidence obtained in good faith?

iii. Holding: Exclusionary rule should be modified to allow evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached a neutral magistrate, even if later it may be determined to be unsupported by probable cause. Test is objective. Majority states that exclusionary rule exacts great social costs and impedes the truth-finding process. [By focusing on deterrence, cuts down scope of the exclusionary rule. Perverse incentives for cops—can submit application for warrant and if magistrate okays, can rely on it. Magistrate is neutral—doesn’t need to be deterred – but don’t like being reversed! Perverse incentive for judges too: If have colorable basis to issue and won’t be affected, what incentive is there to examine closely? Decisions are insulated from review.] 1. Exclusionary rule is a judicially-created remedy.2. No deterrence value because cops acting in good faith.3. Relaxing rule doesn’t affect judge’s professional commitment to 4A

iv. Leon elements1. Police act in good faith 2. Under authorization of neutral and detached magistrate3. Officer reliance on warrant must be objectively reasonable (all circumstances

—reasonable well-trained officer)v. Leon exceptions

1. Magistrate abandoned his/her neutral role, and/or rubberstamping cops2. Warrant is completely lacking any indicia of probable cause3. Police acts recklessly and misleads magistrate with false affidavit4. Facially invalid warrant

C. Search Defined: Katz & Protected Areas and Interests1. Pre-Katz Definition of “Search” was a property-based notion

a. Boyd: Fourth Amendment not applicable without trespassb. Olmstead

i. Facts: No warrant, cops intercepted conversationsii. Holding: Wiretaps not trespass because not on property; 4A not implicated

c. Goldmani. Facts: Bug on wall of adjoining officeii. Holding: No problem with 4A b/c no trespass, no seizure…(not tangible)

d. Silvermani. Facts: Device to listen on pole in wall between two propertiesii. Holding: Violates 4A. Oral statements seized. Unclear whether physical

trespass mattered. Sets way for Katz. 2. “Search” Under Katz

a. Katz: The Casei. Facts: Warrantless surveillance of conversation while in phone booth. Cops had

placed device on outside of booth. b. Majority Opinion

i. Trespass no longer controlling factor. 4A protects people, not places. ii. “What a person knowingly exposes to the public, even if own home or office, is

not a subject of 4A protection…What he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”

iii. Distinguishes between intruding eyes (booth was glass, public could easily see) and uninvited ear (Katz shut the door)

iv. When is there a search? When the government “violates the privacy upon which [person] justifiably relied.” When would a search be unreasonable? Without a warrant supported by probable cause, unless it meets one of the exceptions. [Difficult to apply because of the nature of the exceptions to the warrant requirement.] How does one know when they can justifiably rely on expectation of privacy? Majority has little guidance. Couldn’t set forth objective test.

c. Harlan’s Concurrence: “Search” Definedi. Subjective component: “person exhibited an actual (subjective) expectation of

privacy.” Katz went into booth and closed the door. Look to behavior of person. What is talking on cell phone at airport? N.

ii. Objective component: “the expectation be one that society is prepared to recognize as reasonable.” No guidance on what is reasonable, though.

iii. If either of these is missing, there’s NO SEARCHiv. Reasonableness = warrant supported by probable cause or warrant exception

d. Black’s Dissenti. Looks to text; protect those items in the list only. [two ways to look at list,

though; limiting or representative]. No general right. Framers didn’t intend to give court this authority. Dangerous to freedom.

e. Discussion of the Testi. Harlan’s test is more or less protective than Rochin?

1) Did behavior in Katz “shock the conscience?” N2) Probably more protective.3) If take subjectivity prong too far, though—if government (or other party)

reduces person’s subjective expectations, could do whatever it wanted?ii. More or less subjective than Rochin?

1) Standard-based decision. Sets forth a standard, rather than a rule.2) In this respect, similarly subjective…

iii. Preferable to more literal approach? (Olmstead, Black)1) Olmstead: demarcate areas that are protected.

3. Decisions After Katz—What’s a search?a. Smith v. Maryland—pen register installed at telephone company to record # not a

search. Numbers dialed not protected.i. Subjective expectation of privacy? ii. Objectively reasonable? Individual only one who looks at bill? Privacy laws

prevent telephone company from giving out numbers? Company may print out bill but not scrutinized. Court said you assume the risk that third parties will know numbers you dial when you use the phone.

b. U.S. v. Karo—Drug smuggling scheme, where drugs embedded in clothes and extracted by ether. Police wanted to track cans of ether, so planted a beeper in can. Beeper ended up at Mr. Karo’s house. Was there a search?i. Subjective: Can in house, in private area. Expectation of privacy for contents

of house.ii. Objective: Police used beeper to obtain information they couldn’t have gotten

without being inside the house; this is electronic equivalent of going into house, which without a warrant would be unreasonable. Court said that it was a search, analogous to physical search.

c. Bond (2000)—Cops boarded bus, physically manipulated luggage from outside, to see if they could feel drugs inside the bags. i. Subjective: Opaque bag, above seat, could lock. X-rayed. Consent by flying

airline? Common that people move your luggage around? Difference between way that fellow traveler manipulate luggage vs. the way police squeeze.

ii. Holding: Court said that physically manipulating bus passenger’s luggage from outside to feel for contraband is search. (Sept 11 most likely undercuts this argument now)

iii. Black’s test would provide greater protection in this instance—bags would be “effects” and would be protected…not subject to vaguaries of the time…

4. “Open Fields Doctrine”a. Oliver—reaffirms “open field” doctrine.

i. Facts: Two cases where cops ignored “no trespassing” signs, and either walked through wooded area or around gate and found incriminating evidence, later used for convictions.

ii. Holding: There is no legitimate privacy interest in activities that occur in open fields. (Subjective expectation met by signs, enclosures, yelling at cops). Court says the objective prong isn’t met. Doesn’t matter if trespassing is a crime (shows that society may think expectation is reasonable) or if incriminating stuff couldn’t be seen from air. Falls outside of list of protected interests.

b. Open field or curtilage?i. What’s an open field? Distinguish from curtilage and define by reference. In

Oliver, curtilage is “the area around the home to which activity of the home life extends”

c. Factors from Dunni. Proximity to homeii. Whether included within enclosureiii. Nature of useiv. Steps taken by resident to protect

5. Aerial Surveillance

a. General Rule: No search if surveillance occurs from public airspace, is done in a physically non-intrusive manner, and doesn’t reveal intimate activities traditionally connected to home.

b. Ciraolo—cops in plane at 1,000 feet over fenced yard. See marijuana. Court said no reasonable expectation because anyone flying over could see. Subjective might be met, but not objective

c. Riley—Cops in helicopter at 400 feet. No search. See Ciraolo. Even though no evidence that helicopters at 400 feet were common

d. Dow Chemical—surveillance of complex by plane with sophisticated camera equipment. No search. Lesser expectation of privacy—like open field. How was this different—why did court go with Oliver instead of Ciraolo—flying over with plane and high tech camera equipment—regular person might not be able to do.

6. Garbagea. California v. Greenwood

i. Facts: Cops used info from trash to get a warrant. Garbage was on the street curb, outside the curtilage. Stored in opaque, sealed bags.

ii. Holding: No objectively reasonable expectation of privacy in garbage placed on the curb. No search occurs when police go through bags.

iii. Hypotheticals1) What if in yard behind fence?2) What is law prohibits rummaging (by kids/collectors)? Can law confer

expectation of privacy? Can law curb expectation?3) What if put shredded papers in trash?

iv. Brennan’sparting words: different expectation for objective reasonableness.v. 3 states say that warrantless trash search is unconstitutional

7. Dog Sniffs a. U.S. v. Place: Dog sniff luggage for narcotics

i. Dog sniff is not a search. Very limited exposure of dog to luggage. 1) Information obtained was very limited: sniff doesn’t publicly expose

contents, gives limited information 2) Obtained information in non-obtrusive manner3) Sniff is sui generis—unique. Because of law enforcement challenges in

narcotics and minimal intrusion of sniff, not prohibited. 4A protects people from unreasonable gov’t intrusion into legitimate expectation of privacy: . Sniff isn’t a search within the meaning of the 4A.

8. Surveillance with Heat-Sensing Technologya. Kyllo v. United States

i. Facts: Kyllo raising marijuana in apartment in triplex. Using heat lamps for plants that could be detected by thermal-imaging device. From across the street, the police took a thermal photograph of triplex. Cops checked utility bills, used that info along with informant tips and image to get a warrant.

ii. Issue: Is use of thermal-imaging device a search? 1) WHAT was being photographed? Stuff inside the home or heat on outside

(emanating from) home?iii. Holding: Where government uses sense-enhancing device that is not in general

public use to explore details of a home that would previously been unknowable without a physical intrusion = search. (stops at door of house)iv. Is Kyllo consistent with Katz? Majority thinks so; hinges on determination of what is being picked up. Majority says photographed heatwaves inside house, Katz picked up soundwaves from phone booth. Dissent says Katz picked up content of conversation while Kyllo picked up heat emanating and made

inference from that. Katz equivalent would be seeing the heat-generating activities. For Kyllo to be like Katz, would need only the decibel levels Dissent says no search as long as capture information in the public domain and make inferences from that. Dissent further argues that majority is using the 4A to protect from thought process.

v. Hypos1)

b. Breaking it DownMajority Dissent

Sense-enhancing technology Too broad. Overrules previous cases such as sniffing dog or future technology.

Any information about interior of home

Too narrow. B/c home, which has been extended in Katz and others (unfair charge). Too broad b/c also addresses info outside of home (pizza example)

That could otherwise not be obtained without physical intrusion into constitutionally-protected area

Factual assumptionAssuming (like Karo) where say couldn’t know. Where can of ether was without beeper. Might actually be more like Greenwood—let heat out like trash. Trash should/shouldn’t be protected as much as waste heat. Assumes that info couldn’t be obtained without physical intrusion (if were in AK, heat would cause ice to melt off roof—what then?) This part of rule is inconsistent with facts. Too broad, apparently views inferences from data in public to = physical intrusion

At least where not in public use Arguably will provide less protection in future. Not defined. Protection will decrease as soon as in general public use?

D. Probable Cause1. Text: No warrant shall issue, but upon probable cause”

a. Relationship? Lots of debatei. Not explicitly linkedii. Could say warrant w/ PC is minimum, could also say it’s the maximum

b. Courts require probable cause AND warranti. Valid search or arrest warrant requires probable causeii. Search/Arrest without warrant still requires probable causeiii. Without considering search warrants, search/seizures supported by probable

cause are likely to be “reasonable” (Whren)c. S. Ct. has said that probable cause is one way of balancing the due process and crime

control interests.

2. Probable Cause: Definitiona. Draper v. United States

i. Facts: Cops got tip from previously-used informant that Draper would be coming in on a train on a certain date. The informant said dates when Draper would be coming, time of train, physical attributes of Draper, what he would be wearing, what he would be carrying, and how he would be walking. Informant said Draper would have drugs. Cops went to station, everything informant said was confirmed.

ii. Issue: Whether these facts, all innocent, sufficient to give cop probable cause? iii. Holding: Innocent facts can give rise to probable cause. Use a “totality of the

circumstances” test that defers to arresting officer.1) Probable cause exists where “facts and/or circumstances within knowledge

and of which had reasonably trustworthy information are sufficient in themselves to support a man of reasonable caution in the belief that a) offense has been or is being committed, and b) that person arrested committed offense.

2) Notable characteristicsa) practical (not “legal”); dealing with probabilities (Brinegar)b) objective (reasonable and prudent man)c) consider experience and expertise of officer (smell of opium)d) hearsay accepted—doesn’t require first hand knowledge

3) Dissent: inconceivable that “whispered charges” of informer are sufficientb. Gates v. Illinois

i. Facts: Police receive anonymous letter, detailing how the Gates obtain drugs in Florida to sell in Illinois. Give number of objective facts that the police corroborate. Cops stop Gates on their way back from Florida, search the car and house, and find drugs.

ii. Issue: Whether a partially corroborated letter from an anonymous informant sufficient to give rise to probable cause?

iii. Holding: Reaffirm the “totality of the circumstances” test for PC, which incorporates the reliability of informant and the informant’s basis of knowledge.

iv. Magistrate has to do a balanced assessment of the relative weights of all the various indicia of reliability. Reject the Aguilar/Spinelli two-pronged test, but the factors analyzed still very important (basis of knowledge and veracity). Anonymous letter alone is insufficient, but cops verified all the info. Courts want to encourage warrants, don’t want to diminish value of tips by strictly adhering to the overly technical two-prong rule (that a lot of cops went around anyway. Citizen reporting a crime for the first time might not have met the reliability prong but super-strong basis of knowledge. Decision said that two-pring approach impeding law enforcement. (DP v. CC)

v. This approach may be problematic as it’s the “I know it when I see it” approach. Is it true that one prong can be so strong as to make up for the other entirely?

vi. Articles from Boston Globe on how cops used the two-prong approach to obtain warrants

c. Probable Cause Recapi. Probable cause is objectiveii. Person of reasonable caution includes experience/expertise of individualiii. Like for neutral and detached magistrate to make the PC determination, not the

cop engaged in the “often competitive enterprise of ferreting out crime.” (Johnson)

iv. Court has never quantified

d. Standard of Review of Magistrate for Probable Causei. Gates and Leon allow buffer zones to give magistrate breathing room.ii. Duty of reviewing court is to ensure that magistrate had substantive basis for

rulingiii. Deferentialiv. What if no substantive basis?

1) Leon’s good faith (good faith reliance/objectively reasonable reliance)v. Does PC requirement have any teeth?

1) Deferential review2) Even if no

No evidenceTo support PC

So lacking indicia of PC

Mucho Evidence

Substantive basis (but doesn’t meet PC threshold (Gates)

PC

Reasonable Good Faith (Leon)

Exclude Evidence Evidence to be Included

e. Which test is better? Gates vs. Aguilar/Spinelli?i. Due Process—Aguilar/Spinelli because emphasize reliability; doesn’t defer

to copii. Crime Control—Gates (& Leon) about institutional competence;

trust/deference to officer/magistrate. Gates also finds cost of DP to be unacceptable. Hampers law enforcement too much.

f. Distinction between Probable Cause for Arrest and PC for Search?i. Arrest

1) PC that a crime was committed2) PC that person to be arrested committed it (e.g., Draper—could only arrest

him, not others in the stationii. Search

1) PC that objects of search are presently at place to be searchedE. Warrant Requirement

a. Search/Seizure without a warrant is presumptively unreasonableb. Inquiry

i. Was there a warrant?ii. Warrantless presumptively unreasonable unless exception (Johnson)iii. Warrantless arrest in public place generally okay if have PCiv. Warrantless arrest in home (Payton, Richards)

c. Johnsoni. Facts: Police officer had informant’s tip that people were smoking opium in a

particular hotel. Once they were at the hotel, one cop smelled the opium, the other confirmed the smell. Go to the room, woman lets them in, they arrest her and find opium.

ii. Issue: Was is lawful for police to arrest woman without a warrant and then search her quarters?

iii. Holding: iv. Notes: Was there PC? Yes, based on smell. Was there a warrant? No Gov’t

justified by saying it was a search incident to an arrest, but didn’t have probable cause to arrest until search the room. Circular justification. If there was PC, why was a warrant required? Magistrate detached and neutral, officer not. Temptation for police to act blindly. Separation of powers. CC model: factfinding by police at beginning; DP model: factfinding by the court at the end.

d. Warrantless Arrestsi. Watson: If in a public place, warrantless arrest generally okay (,ust have PC)ii. Payton: Warrantless and nonconsensual entry into a suspect’s home in order to make

a felony arrest. (extended to misdemeanors in Welsh) Sanctity of home iii. Is the distinction justified? Crime control costs (uncertainty in field, litigation)iv. Steagald: Need warrant to enter 3rd party’s house to execute arrest warrant for person

(w/o emergency). Need PC that person is there. Otherwise, like writs of assistance. A little weird, because if enter home (Payton), need arrest warrant, but not search warrant—if suspect is a guest at someone’s house, need search warrant (and arrest warrant?)

v. Home vs. Public Place? See Santana, where one foot inside and one outside. Court ruled she was standing in a public place because she was standing in open view.

vi. Consequences of Illegal Arrest? If don’t get arrest warrant and enter house (violating Payton) and see evidence…if evidence fruit of illegal arrest, exclude. If no evidence, illegal arrest doesn’t affect prosecution of case.

e. Knock and Announce Rulei. Richards

1) Facts: WI said that cops never had to knock and announce themselves before entering a house for a felony drug case.

2) Holding: Where there’s evidence of a likelihood of evidence destruction and/or danger to police, the decision not to knock and announce will be reasonable. Use

a case by case inquiry to determine whether “K&A would be dangerous, futile, or allow evidence destruction.”

3) Notes: Court said WI can’t create a blanket rule because there’s no limiting principle (all crimes show danger to police safety). Holding requires that the police justify the decision they make at the door about knocking/announcing. Putting decision in the hands of person in “competitive profession of ferreting out crime.” Another problem: if cop is coming to the house to arrest person, incremental value of privacy for knocking and announcing not strong enough for the increase in danger to police.

f. Warrant Rulesi. Warrant Requires PCii. Warrant needs to be issued by detached/neutral magistrate

1) According to state law. Doesn’t necessarily have to be a judge or lawyer, as long as party is detached, neutral and can determine PC. This makes sense because court has said that PC isn’t a technical/legal inquiry. Can’t be a rubber stamp

2) Shadwick: Clerk can issue for breach of municipal ordinance3) Connally: If justice of the peace is paid for each warrant issued, no go

iii. Particularity1) Places to be searched—sufficiently definitive so police can ascertain and identify

place with reasonable effort.a) Garrison: Warrant for search of 3rd floor apt, which turned out to be two

separate apts. Valid2) Things to be seized—sufficiently definite

a) “drug paraphernalia” OKb) “illegal stuff” not OK

iv. Oath/Affidavit—statement to obtain warrant must be sworng. Exceptions to the Warrant Requirement

i. “Plain View” Exception1) Rules from Coolidge (plurality opinion; required inadvertence) and Horton (got

rid of inadvertence requirement). Police may seize objects where:a) Authorized initial intrusion. Must get in there on independent 4A grounds

than just the object (can’t get in because see marijuana through window)b) Discovered during course of legal searchc) Immediately apparent that object is of incriminating character

“Incriminating character” = PC that object is fruit, instrumentality, or evidence of crime

Hicks 2) Justification for “Plain View” Exception

a) Initial intrusion is justified. b) No additional invasion of privacyc) If require warrant, risk to safety or evidence preservation?d) Could argue it’s not really an exception because cop would have a search

warrant or search warrant exception, or might be there to execute arrest warrant—this step just prevents cop from needing to get a warrant in order to seize object

3) Hicksa) Facts: Warrant authorized to look in apartment for shooter, other victims,

weapons. Officer sees expensive stereo equipment that seemed out of place. Recorded one serial number, but then moved the stereo to see another. Stereo turns out to be stolen.

b) Holding: Recording of # in view not problematic (no search/seizure) because no meaningful interference with possessory interest. Moving the stereo was not a seizure (because no meaningful interference…) but was a “search,” because officer took action unrelated to the objectives of the authorized intrusion, which then exposed to view concealed portions of apartment or its contents. If weapon could have been under the turntable, it probably would have been okay.

c) Scalia says that “there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all. Our disagreement with the dissenters pertains to where the proper balance should be struck. We choose to adhere to the textual and traditional standard of probable cause.”

d) Different interests implicated in this case. Search (privacy) vs seizure (possession)

4) Search of Object in Plain View in Home Must be Supported by PCa) Warrantless seizure in public place requires PCb) Need at least same standard for private place as publicc) Warrantless seizure in private place cannot require less than warrant requiresd) Warrantless search cannot require less than warrantless seizure

Interests different but deserving of same level of protection because 4A doesn’t suggest one is more important than the other.

e) Why not distinguish between full-blown search and cursory search (dissent in Hicks)?

f) Does “good faith” exception apply? In Leon, facially valid warrant—in Hicks, no. No neutral magistrate in Hicks. Open question whether good faith exception applies outside of warrant context.

5) Hypotheticalsa) Cop has warrant authorization to search for gambling receipts; search under

turntable & recognizes serial #. *Searching for what is authorized in warrantb) Warrant authorized search for big-screen tv, search in desk drawer reveals

gambling receipts. *Not looking where authorized (tv couldn’t fit in there)c) Warrant for tv, find receipts on desk on 2nd floor study after tv found in 1st

floor living room. *Not lawfully authorized to be thered) Pursuant to warrant for tv, find tv & unmarked tapes on top–plays tape—

illegal material. (saw video during authorized search) *Playing tape is a search. Need PC to view. Is there PC? If pursuant to warrant for tv, finds tv and sees videos on top marked “sex with children.” Reveals child pornography, seized. Would have PC because of markings. If got a warrant, evidence might be destroyed.

6) Horton v. Californiaa) Facts: Cop had warrant to look for 3 rings stolen in robbery. Police report

describing robbery described weapons too, but warrant didn’t include. Once in house, didn’t find jewelry, but weapons were in plain view and seized. Cop testified that, while he was looking for the rings, he was also looking for other, related stuff.

b) Issue: Can officer seize materials she wanted to find but weren’t included in the warrant, or is inadvertence (meaning not included in the warrant?) required?

c) Holding: Inadvertence is not a necessary condition of plain view seizures.d) Notes: Inadvertence required in Coolidge to meet the particularity

requirement of the 4A. If you’re looking for it, put it in warrant. Why does

Horton reject? Want an objective rather than subjective standard—avoid litigation (ex. 2 photographs). If search is within the scope of the warrant or exception, no additional intrusion from lack of inadvertence. Dissent says: No incentive, then, for police

7) Summary of Plain View Exceptiona) Can “search” objects in plain view pursuant to lawful search of other

objects/persons only if PC connected with crime (Hicks)b) Can seize objects in plain view if PC connected with crime, even if not

discovered inadvertentlyc) Common denominator for plain view warrantless searches and seizures is PC

ii. Exigent Circumstances Exception to the Warrant Requirement1) Exigent circumstances: impracticable for police to obtain a warrant

a) Typically apply when emergency circumstances make it unreasonable for police to go get a warrant

b) Emergency that gives rise to the exception will usually define limits of the search

c) Still need PC2) Warden v. Hayden: “hot pursuit”

a) Facts: Cabbie shot, two other cabbies followed perp to house; cops arrived within minutes. Asked to go into house; Mrs. Hayden didn’t object. Cops found bloody clothes and weapons.

b) Issue: c) Holding: Permissible scope of warrantless search based on exigent

circumstances may be at least as broad as may reasonably be necessary to prevent the dangers that suspect at large may resist/escape. Emergency that gives rise to the exception will usually define limits of the search—here, PC that there was shooter and weapons in house; there was a risk that perp could destroy evidence and/or harm others.

3) Welsh v. Wisconsina) Facts: Guy swerving, likely DWI. Suspect stopped/crashed car, walked

home. Cops went into house, arrested suspect. b) Holding: In the context of a home arrest, no exigency where offense is a

minor civil infraction. State interest is arrest for minor offense doesn’t overrule privacy interest in home.

c) Court rejected government’s argument that evidence (alcohol in bloodstream) would be lost with passage of time. Even though risks don’t change depending on offense, where legislature doesn’t make an offense jailable, court doesn’t seem to think there’s much harm. Problem: what is minor? How does cop know at the time? Welsh was actually a second time offender, making the offense jailable but cop didn’t know that at the time.

4) Minnesota v. Olson: Factors for hot pursuit of a fleeing felon leading to a warrantless arrest in home. If don’t go in, PC to believe:a) Evidence will be destroyedb) Suspect will escapec) Harm will occur to police or othersd) Also consider gravity of crime and likelihood that suspect is armed

5) Illinois v. MacArthura) Facts: Suspect declined cop’s request for search pursuant to wife’s tip that

drugs were hidden in house (jailable offense, up to 30 days. Other similar offenses: renting videos without rating displayed). Cop made suspect stay outside of trailer until other cop got warrant.

b) Holding: Search is reasonable when police have probable cause that house contained contraband and reasonably believed evidence would be destroyed, as long as restraint is limited while police diligently obtained a warrant. Central requirement of 4A is reasonableness. Balanced concerns of privacy with law enforcement. Restraint limited in time and scope.

c) Circumstances: had PC to believe that trailer contained evidence of crime; good reason to fear that he would destroy evidence [but cops created the exigency by asking to search—could have quietly gotten warrant?], made reasonable efforts to balance, and suspect was restrained for a limited period of time.

d) Dissent (Stevens) says court got the balance wrong. Government interest implicated here is very slight. Sanctity of home has a higher value than petty crime. Souter: Police left greater privacy interest in home intact.

6) When does “hot pursuit” justify warrantless search and seizure?a) PC that crime (suspect committed it) AND location (suspect at location)

Hypo—fleeing felon disappears into housing project. PC to do apartment to apartment search? *Probably not—need more particularity. vs. “3rd floor apartment” actually two

b) Exigency exists (PC? Reasonable belief?—court hasn’t determined level of sufficiency/probability tied to PC) Hypo—reliable informant says armed felon fled home a few hours

earlier. * No, b/c fled—felon’s not there. Hypo—Police stake out home waiting for suspected drug dealers to

return and as suspect opens door, cops jump out. *Most lower courts say that if cops create own exigency, no go.

c) Pursuit legitimate from start Hypo—Police sneak behind home to peek at suspected drug dealers.

Suspects see and then flee. d) Not a “minor” crime (Welsh)

7) Scope of Search Pursuant to Exigent Circumstances—Hyposa) Prompt search of murder scene after arrival for suspects/other victims. *OK

—might be other victims, suspects.b) After removing suspect and victim from scene, checking for other victims

and suspects, police spend four days going over scene (Mincey). *Uh, no.c) After removing suspect and victim from scene, police return 35 minutes later

to search premises for a few hours (Thompson)d) While searching in hot pursuit for armed felon, police rummage through

letters in desk. *No—search must be related to exigent circumstances.e) While in hot pursuit of armed felon, police see incriminating letters on table

in plain view. *OK—there pursuit to warrant exception, within reasonable scope of search permitted by the circumstances.

iii. Searches Incident to Arrest—Warrant Exception1) General Rule: Police officer who makes a lawful (PC) custodial arrest may do a

contemporaneous warrantless search of a) person (pockets, purses/bags immediately associated [see Chadwick, below])b) area within immediate control, and c) if in a home, closets and other immediately adjoining areas where

confederate could be (Buie: Police have automatic right to go beyond grabbing area in person’s home if a place is large enough to hide a person (must be close to the place where arrest occurred)

2) Rationale for Warrant Exception: Custodial arrest gives person an incentive to resist the officer, and if at home, officer is at disadvantage.a) The exception doesn’t do away with the PC requirement, but the right to

search flows from the arrest itself. Right is automatic. b) Officer can seize what she finds during search without a warrant, as long as

there’s PC to believe it’s a weapon and/or criminal evidence. 3) Scope of the Exception: Chimel v. California (1969)

a) Facts: Arrested man at home but then proceeded to search the entire three bedroom house, including in bedroom drawers.

b) Issue: What is scope of search incident to arrestc) Holding: When an arrest is made, it’s reasonable for the arresting officer to

search the person to remove weapons, and to seize any evidence on their person. It is also reasonable to search the area within person’s immediate control.

d) Comments: Area under immediate control would be factually based. How tall person is, whether they are handcuffed, etc. Without limit, cops might have the incentive to always arrest people at home.

4) Is the Right Automatic or is PC Necessary? U.S. v. Robinson (1973)a) Facts: Arrest for suspicion of driving without a license. Searched suspect

and felt something in pocket. Found crumpled up cigarette package. Looked inside, and voila! heroin. Suspect tried to exclude.

b) Holding: Full search of person in case of lawful custodial arrest is reasonable under the 4A. [Focus on need to disarm arrestee. Custodial arrest provides extended proximity between officer and suspect. Can search for weapons, not only evidence. Cigarette package could have had a razor in it. Rejects case-by-case adjudication.]

c) Dissent: Once the officer removed the cigarette package, he didn’t need to look inside it. [Majority didn’t really address this] Concurrence: Individual lawfully subjected to custodial arrest retains no significant 4A interest in the privacy of his person. If arrest is lawful, privacy interest subordinated to government interest.

5) Arrests and Automobiles: New York v. Belton (1981)a) Facts: Cop stopped car for speeding, smelled pot and saw envelope on floor

of car. Took occupants out of car and searched car. Found envelope with pot and then searched a jacket on the seat, which had cocaine.

b) Holding: Incident to a lawful arrest of an automobile’s occupants, cops may conduct a contemporaneous but warrantless search of the passenger compartment. *includes containers (Robinson) *But not trunk!

c) Notes: How do Belton and Chimel fit together? Court supposedly applied “one-lunge” rule extending the rule in Chimel to cars. But once remove occupants of the car, is the one-lunge rule still applicable? Has the justification (evidence preservation, danger to cops) dissipated? Should cop have to get warrant? Under Belton, cop can go back and search. If one cops drives away with the car’s former occupant can the officer left behind search the car left behind? Saw in Belton that the justification doesn’t need to be there, but it’s not contemporaneous!

6) Traffic Tickets and Automobiles: Knowles v. Iowa (1998)a) Facts: Person speeding; cop gives citation (but could have arrested) and then

searches car.b) Can police search the car incident to issuance of a citation rather than an

arrest?

c) Holding: Traffic stop doesn’t sufficiently implicate concerns (danger, evidence) that allow for a warrantless search in the case of a custodial arrest.

d) Decision is generally more protective of privacy (DP model) but can create perverse incentives. Police have an incentive to arrest rather than issue citation.

e) Rationale in Knowles

Officer Danger Evidence PreservationArrest -Extended contact

-Close proximity-High stress situation

Opportunity to conceal or destroy evidence after arrest

Citation -Brief contact-Low stress (relatively)

-No evidence to destroy-All evidence obtained by the time cop stops car (speed, etc)

7) Problem of Pretext: Whren v. United Statesa) Facts: Cop stopped car for speeding and turning without signaling. Basis of

stop was legitimate, but cop really had a “hunch” that there was some drug activity involved. Stopped car, told them to park (seizure) and then saw drugs in plain view.

b) Holding: Search/seizure supported by PC constitutionally reasonable regardless of police motive. Pretextual basis doesn’t invalidate otherwise reasonable search/seizure.

c) Notes: Basis for traffic stop? Legitimate: Speeding, turned without signal. Actual: Investigative instinct. Gov’t brief stated that pretextual stops important tool in fighting crime) (Court said that racial profiling issue would be one for equal protection, not the 4A. As long as based on objective PC, cops are okay under the 4A).

8) Problem of Pretext II: Atwater v. City of Lago Vista (2001)a) Facts: Cop stopped Atwater, who was driving with two kids. None were

wearing seatbelt. Arrested her. Basis for stop? Legitimate: No seatbeltActual: May have been personal motivation. [in the record, this was 2nd exchange between Atwater and cop.]

b) Issue: Does 4A forbid warrantless arrest for minor criminal offense, such as a misdemeanor seatbelt violation punishable by a fine?

c) Holding: May conduct custodial arrest for which he/she is authorized without a reason. Don’t want to force police to make fine distinctions in the field. Majority goes with this without balancing the cost/benefits of determining whether or not Atwater’s arrest was in some sense necessary.

d) Dissent: No articulable state interest for arrest. Need articulable reason—any rational reason. “The majority’s assessment that Atwater’s claim to live free from pointless indignity and confinement clearly outweighs anything the city can raise…the fourth amendment inquiry ends there.”

9) WHREN + ATWATER = DISCRETION TO POLICE10) Hypos:

a) Officer passing van notices black occupants. Cops go over hill, turn off lights. The van changes lane to avoid officer’s car, but doesn’t signal. Legitimate basis—no signal. Upheld by 5th Cir.

b) Officer sees black driver straddling center line for one second before changing lanes without signal. 10th Circ. said OK—there was an articulable reason.

11) How far can pretext go? Officer sees Middle-Eastern or black driver and “doesn’t like his looks.” What can the cop do?a) Wait for driver to go 1 mph over the speed limitb) Pull over for traffic offense (Whren)c) Arrest driver even if fine-only offense (Atwater)d) Search passenger compartment, person, containers, even if no exigent

circumstances (Belton)e) Can take back to station until magistrate makes PC/bail determination.

12) Atwater in OK: 22 O.S. §196(1) “A peace officer may, w/o warrant, arrest a person…for a public offense, committed or attempted in officer’s presence.”

iv. Automobile Exception (and Containers Therein) to the Warrant Requirement1) There are two streams of cases (car and container) that will be joined in Acevedo. 2) Car Cases

a) CARROLL (1925): May search with w/o warrant where there’s probable cause that car contains evidence of crimes and there’s no time to get a warrant. (mobility rationale: automobile exception created by exigency, created by car’s mobility=may leave jurisdiction. Cars are highly regulated = diminished expectation of privacy).

b) ROSS (1982): Warrantless search of car can include search of containers/packages inside, when there is probable cause to search the container. P.C. MUST EXTEND TO CONTAINER

3) Container Casesa) CHADWICK (1977): Cannot search container when have probable cause but

no warrant. Cops had locker under their control, waited 90 minutes to search. People have a greater expectation of privacy in their luggage. Can seize it without a warrant as long as they have PC, but need warrant to search it. Rule unique to luggage, and other closed packages, bags, containers.

b) SANDERS (1979): Police waited until container put in vehicle, then stopped car a few blocks away. [Result of cases before: Before container put in car, can’t search. After in car, under Carroll, could search.] Court found that cop may not search container in cars where prior probable cause to search container (i.e., where initial target of search is container—can’t wait until person puts container in car to search). Overruled in Acevedo

4) Convergence of Cars and Containers: California v. Acevedo (1991)a) Facts: Knew drugs were in the fedex package that dude took into his

apartment. One guy went to apartment, came out—cops searched and had drugs. Acevedo goes into apartment, comes out, puts knapsack in trunk and gets in car. Probable cause developed before Acevedo put the knapsack in the trunk. Cops had probable cause to search the trunk, but only so that they could find the bag they saw Acevedo put in there. Factually, case was similar to Chadwick/Sanders, but court followed Carroll rule.

b) Holding: Protection of 4A shouldn’t turn on where item is. Carroll is controlling for all containers in automobile: Police may search without a warrant if supported by PC.

c) Notes: Court said: Separate rules governing searches may enable police to broaden their power to make warrantless searches. If police know that they can open a bag only if they are searching the entire car, they may search more extensively than they otherwise would to find contraband in order to

establish Ross’ general PC. Cops could search everything except the one thing that gives rise to P.C. This is more intrusive than just allowing cops to search for one item they’re looking for.

d) Stevens’ dissent in Acevedo: No conflict b/tw Carroll and Chadwick. Carroll’s auto exception applies only where police have generalized P.C. that contraband in car. Chadwick’s container rule applies where there’s P.C. to search a particular container.

e) Scalia, concurrence: Anomalies except wither way. Majority more faithful to 4A text and tradition, which doesn’t require warrant, only reasonableness. “To preserve the integrity (illusion) of general warrant requirement, the court has regrettably chosen to say that ‘no search occurred’ under Katz rather than say that a warrantless search was reasonable.” Believes language in Acevedo undermines the warrant requirement. Since majority seems to say that a warrant requirement provides only minimal privacy protection, court might be on its way to overrule Chadwick?

f) Vehicles covered: Boats? Y Plane? Probably. Motor Homes? Y, if being used for transport or readily mobile.

g) Probable cause: that car has contraband or evidence within places to be searched, including containers.

h) People inside cars? (Di Re, 1948) – Need separate justification to search person. (Could arrest them)

5) Inventory Searches of Auto—Opperman v. South Dakotaa) Facts: Car was impounded and as part of department regulations, inventories

car. Looked in glove compartment and found marijuana.b) Holding: police may conduct an inventory of an auto without a warrant or

PC if it done pursuant to lawful impoundment (car) or arrest (person) and pursuant to police regulations. Police can only search where valuables might be kept.

c) Notes: Police responsible for “community caretaking functions,” and respond to three distinct needs when cars impounded: protections of owner’s property while in custody, protection of police against claims or disputes over lost or stolen property, and protection of police from potential danger.

d) Application to person: Lafayette (1983)—inventory at station OK if in keeping with regulations; no PC necessary. Justified by protection of suspect’s property, deterrence of false claims of theft, security, identification of suspect.

6) How far can pretext go, Part IIa) Wait for driver to go 1 mph over the speed limitb) Pull over for traffic offense (Whren)c) Arrest driver even if fine-only offense (Atwater)d) Search person and containers on person (Robinson)e) Search passenger compartment and containers, even if no exigent

circumstances (Belton)f) Can take back to station until magistrate makes PC/bail determination.g) Inventory search of arrestee at station (including containers) (Lafayette)h) Impound car and conduct an inventory search (Opperman)

v. Stop and Frisk Exception to the Warrant RequirementNotes from 10/1—Duane emailed these.

Scope of frisk: Pat down of outer clothing for weapons. Cannot reach into pockets first (Sibron 1968). Manipulations of objects only to feel if they’re weapons. If feel creates PC that there’s contrabandTerry AdamsJ.L.Wardlow

vi. Administrative and Regulatory Searches—Exception to the Warrant Requirement

Criminal Search Administrative Search (Camara)Warrant Warrant required if no consent

PC—individualized suspicion w/ respect to evidence to be found in that place

PC based on different factors: length of time since last inspection, type of building…no individualized suspicion.

Individualized suspicion Allow area-wide PC…gov’t interest in code enforcement vs. privacy interest

1) Camara v. Municipal Court (1967)a) Facts: Employee of Health Department tried to enter person’s apartment

without a warrant or consent to do a routine inspection for violation of the housing code.

b) Holding: In absence of emergency, right of entry to conduct administrative inspection requires a warrant based on administrative reasonableness.

c) Notes: Court creates an administrative version of probable cause that requires reasonableness. Search would require a warrant, but would be based on reasonableness. Minimal intrusion involved [really, though, depends on code—wiring search can be pretty intrusive] Who does search? Bureaucrat vs. cop

2) Skinner v. Railway Labor Executives Associationa) Facts: Federal railroad administration issued new regulation that mandates

blood and alcohol testing of employees involved in certain rail accidents.b) Holding: Because the testing allows limited discretion to railroad, the

importance of government interest in the circumstances, and the diminished privacy expectation that attaches to fitness of employees covered by regs, alcohol/drug testing reasonable to conduct such tests without a warrant or particularized suspicion.

c) Notes: Types of searches involved (blood, breath) implicate 4A interestsd)

Criminal Search Administrative Search (Camara)

Regulatory Search (Skinner)

Warrant Y N—contravenes policy b/c might lose evidence

PCAdministrative PC—based on different factors

Not really. Specific occurrence triggers search. OK b/c little discretion; highly regulated industry

Individualized suspicion

Area-wide PC; gov’t interests vs privacy

N—employees right to privacy expectations lower

interests

b/c highly regulated industry. Sort of assumption of risk b/c regulation. Nature of intrusion—court says conducted by independent facility. Employs essentially a Camara balancing = industry wide suspicion.

3) City of Indianapolis v. Edmonda) Facts: Brief, suspicionless seizures at highway checkpoints for the purpose

of combating drunk driving and intercepting illegal immigrants. All procedures were listed in instructions.

b) Holding: Because the purpose of the checkpoint is indistinguishable from the general interest in crime control, the checkpoints violate the 4A.

c) Notes: Vehicle stop = seizure. Cannot suspend requirement of individualized suspicion. Court required a limiting principle—otherwise little check on the ability of the court to construct roadblocks for any law enforcement purpose.

4) Checkpoint Martinez-Fuerte

Sitz Edmond Airports

Nature of Checkpoint

Immigration checkpoint near border

Sobriety checkpoint on highway

Checkpoint for illegal drugs. Sign; standardized search; little discretion

Screening of persons and luggage

Primary Purpose

Contain illegal immigration; maintain border integrity

Safety; removal of drunk drivers

Narcotic interdiction (criminal enforcement)Place: dog sniff not a search under place

Public safety; prevent hijacking, terrorism

Intrusion Look at license; brief questioning

Talk to drivers briefly; if greater suspicion, pull over

Brief questioning and dog sniff

Electronic screening; “wanding”; frisk of person; search of luggage

Notes Why should Edmond be distinguished from Edmond and Place? Dog sniff isn’t the problem—purpose is-general criminal purpose. Can

Does fact that searches are random insulate government from action.

change sign, still have dog run around (no search).

5) Earlsa) Facts: Random drug testing of students in extra-curricular activities.

6) Vernoniaa) Facts: Random, suspicionless drug testing of athletes.b) Court justified by

Significant drug problem Athletes have less of an expectation of privacy (as students in

“custody” of school) Nature of intrusion (urinalysis = minimal) State Interest: students in state of rebellion; athletes were drug

leaders7) Recap on the Testing Cases

8) Is “Special Needs” Consistent with Text/Values of the 4A?a) Unreasonable searches and seizures; criminal vs. civil. Scalia would say

no distinction b/tw criminal/civilb) Purpose: Does it make search more/less intrusive? Colonial times-civil

& regulatory searches prompted 4A—seems inconsistentc) PC versus suspicionless: If search one person, need particularized

suspicion; if search many, need cause or suspicion? Backwards. Relationship between reasonableness clause and warrant clause of 4A. Criminal—divorce two clauses unless exception.

vii. Consent Searches – Exception to the Warrant Requirement1) Schneckloth v. Bustamonte (1973): First party consent

a) Facts: Cop pulled over but didn’t arrest, so no legal basis for search. Asked Alcala for permission, but it was his brother’s car. Searched passenger compartment, trunk. Found checks underneath back seat. Not plain view—Found based on Alcala’s consent.

b) Holding: To determine if consent to a search was voluntary, examine all the circumstances—Person’s knowledge of right to refuse is a factor to be considered, but not a prerequisite. Facts to consider: Age, length of detention, intelligence of person (defendant’s characteristics plus details of interrogation)

c) Notes: Court said it was impractical to inform person of right to refuse (Majority says that it would change the nature of the encounter to a formal one; Marshall says that cops want to capitalize on person’s ignorance). Is issue whether consent was voluntary or whether dude waived his right to be free from unreasonable search/seizure?

2) U.S. v. Matlock (1974): Third Party Consenta) Facts: Suspect shared room with person who gave cops consent to

search. b) Holding: Warrantless search is constitutionally valid if police obtain

consent of person who has common authority over property. Look at factors showing “joint access and control.”

3) Illinois v. Rodriguez (1990): Apparent Authority Test

a) Facts: Person who let cops in—no common authority, but cops thought so. She had key, said she lived their, used the word “our.” Find out later that she had been kicked out of apartment, had limited access. From cop’s perspective, appeared as though she did have common authority.

b) Holding: Where a third party agrees to allow officers to search certain premises over which the officers reasonably believe that the third party has common authority, their subsequent warrantless search of the premises is reasonable under the 4A.

III.PRIVILEGE AGAINST SELF-INCRIMINATIONA. History

a. Early Origins of Privilegei. Medieval Church Law (what you said to priest couldn’t be turned over to civil

authorities. ii. Heresy Prosecutions in England (16th/17th century) may be procedural backdrop

for the privilege. Defendants required to take an oath of truth before she knew what she was accused of.

iii. Star Chamber—anything associated with it was considered odious. Penalty for not answering questions: incarceration, torture, worse.

b. Common Lawi. Earlier, all statements admissible; later, confessions gathered through force or

threat of force inadmissible. ii. Key was RELIABILITY. Figured if not made voluntarily, wasn’t reliable.

iii. U.S. Courts followed the reliability basis in Hope v. UtahB. Text

a. “No person shall be compelled in any criminal case to be a witness against himself.” Applicable to states through the Fourteenth Amendment

i. Applicable in “criminal case”?ii. “Witness against himself” What’s included—evidence, testimony?

iii. Only at trial?iv. What if chose to testify?

C. Componentsa. Compulsion. If choose to testify, can waive.b. Criminal Case. Although applies to criminal cases, applicable in contexts that may lead

to criminal proceedings—deposition, grand juryc. Witness. See Schmerber.d. Against Self.

D. Values Underlying the Privilegea. Privacyb. Protection from government abusec. Reliability of evidenced. Presumption of innocencee. Adversarial system of government (“cruel trilemma”)

i. Cruel Trilemma: Suspect placed in a position1. If guilty and compelled to testify, options to: lie, tell truth and be

convicted, or be held in contempt. If don’t testify, prosecutor stresses your guilt.

2. Is this trilemma cruel to anyone but the guilty? Even the innocent may not seem innocent when testify.

Privilege Against Self-Incrimination: The SpecificsA. Compulsion

a. Griffin v. California: Compulsion in Testifyingi. Facts: Suspect didn’t testify; prosecutor commented on lack of testimony; jury

instruction told jury that they could make inferences from lack of testimony against the defendant on matters that the defendant knows about.

ii. Holding: Court’s comment on the refusal to testify is a penalty imposed for exercising a constitutional privilege. Neither prosecutor nor judge can comment adversely on defendant’s silence.

iii. Expansive meaning of “compulsion.” Commonly thought of as “the use of physical or moral compulsion.” Could argue that instructions helped Griffin because reminded the jury that the lack of testimony wasn’t dispositive and that the state still has to prove its case?

b. Andreson (1976)i. Facts: Fraud investigation in real estate transaction; government searched

defendant’s office with a warrant and seized documents that contained incriminating statements.

ii. Holding: Party is privileged from producing evidence but not from its production. Here, the seizure was lawful.

iii. What does 5A protect? Compelled self-incrimination, not the disclosure of private information.

c. What about subpoenas?i. Are they analogous to testifying?

ii. Producing vs. production of evidence already in existenceiii. In certain instances, subpoena=testimony

1. Asking for acknowledgement of document’s existence2. Authentication of documents

B. Witnessa. Schmerber

i. Facts: Government drew blood to get blood-alcohol content; Defendant objected that it was compelled self-incrimination

ii. Holding: Privilege protects accused only from being compelled to testify against himself or otherwise provide the state with evidence of a testimonial or communicative nature.

iii. Physical evidence vs. testimonial evidence:1. Physical evidence (blood sample, fingerprints) doesn’t implicate 5A. 2. Demonstrative evidence okay too: force person to produce handwriting,

stand up, put on jacket.3. Question about physical evidence from lie detector test (Chief Wiggam)

a. Seems more like interrogation than blood sampleb. Could argue it’s less like Schmerber

Confessions: The Road to MirandaA. History

a. Common Law: Test was reliability. Believed to be unreliable is product of coercion, torture

b. Brown (1936): Plugged common law into Due Process.c. Massiah (1964): Experiment with another approach. Confessions should be regulated

under the 6th Amendmentd. Miranda (1966): Switched to the 5th Amendment

B. Due Process Voluntariness Testa. Brown v. Mississippi (1936)

i. Facts: Extracted confession from suspects from torture—hung, whipped until confessed to exactly what cops said.

ii. Holding: S. Ct. reversed conviction. Said the confession wasn’t voluntary. Used Totality of Circumstances Test: was the will of the defendant overborne?

iii. Look at police conduct (characteristics of the interrogation) and characteristics of accused. Difficulties with this approach: conceptually vague, difficult to administer, swearing contests in court, precedent doesn’t guide

iv. When there’s actual or threatened violence, no need to weigh. b. Spano v. New York (1959)

i. Facts: Guy killed at candy store, suspect picked up after indicted, interrogated for many hours throughout the night, used suspect’s cop friend to make emotional pleas for suspect to confess. Requested counsel several times and was denied.

ii. Holding: Look at Totality of the Circumstances to determine if will was overborne. Here, court concluded that petitioner’s will overborne by official pressure, fatigue and sympathy. The fact that suspect had been indicted was very important to the majority. Use of the confession inconsistent with Due Process of 14A.

iii. Concurrence (4 justices) argued that this case turned on the cop’s violation of Spano’s 6A right to counsel. He had requested counsel three times and was denied.

C. Massiah, Escobedo, and 6A Right to Counsel a. Spano (1959)

i. Although majority focused on DP totality of the circumstances test, the concurrence stressed the violation of Spano’s 6A right to counsel.

b. Massiah (1964)i. Facts: Massiah indicted on narcotics violations. Codefendent Colson cooperated

with police and planted a bug in the car. Massiah and Colson were in the car when Colson got Massiah to start talking about their crimes.

ii. Holding: Sixth Amendment violated when confession deliberately elicited post-indictment without presence of counsel. (Colson acting as officer of the government.)

iii. Hard to argue coercion or overborne will; statements probably wouldn’t implicate CL reliability test. More clear rule than Spano, but now the confessions seem to be unregulated before indictment, prosecutor will be slow to indict.

iv. After indictment, Massiah trumps Spano.c. Escobedo (1964)

i. Facts: Cops wouldn’t let attorney in. Sent “friend” in, told Escobedo that other guy informed on Escobedo, after which Escobedo made incriminating statements. Never indicted. Seem to be a Spano situation, but court used different approach.

ii. Holding: When (1) the investigation is no longer a general inquiry but has begun to focus on one suspect, (2) the suspect has been taken into police custody, (3) police begin a process of interrogation that lends itself to eliciting incriminating statements, (4) suspect has been requested and denied access to a lawyer, and (5) police have not informed suspect of her rights to remain silent, the accused has been denied the assistance of counsel.

iii. Right to counsel in 6A is a trial right. Escobedo saying its pre-trial—essentially that if there’s no lawyer present, the trial will essentially be an appeal from the interrogation. The holding was critical of the use of confessions in general.

iv. Later, the holding in Escobedo was limited to its facts, and the court takes a new approach to the problem with Miranda. Holding made Massiah less clear until Brewer v. Williams (Williams I).

d. Recap

Investigation Custodial Interrogation

InitialAppearance

PreliminaryHearing

(PC to Prosecute)

Information orIndictment

(formal charges)

Arrest

Escobedo?

5A PrivilegeAgainst Self-Incrimination

attaches (Miranda)Displaces Escobedo

6A Rightto Counselattaches

Massiah

D. Miranda v. Arizona: Privilege Against Self-Incriminationa. Bases of Miranda’s factual assumptions

i. Studies from the 1930s (“third degree”)ii. Cases involving violence (e.g., Brown)iii. Police training manuals (Mutt and Jeff routine)

b. Miranda—the Case (1966)i. Facts: Very few facts offeredii. Holding: Warnings required. [1] Right to remain silent, [2] any statement made may be

used against the person in court, [3] Right to an attorney, [4] If cannot afford an attorney, one will be appointed. Must give these warnings before custodial interrogation. Says that custodial interrogation is inherently coercive.

iii. What about waiver? Can waive right, if done expressly. Must be voluntary, knowing and intelligent waiver. If statement obtained without attorney present, government has a heavy burden to demonstrate the waiver.

iv. If invoke right to counsel or remain silent, they must stop the interrogation. Can they come back the next day? Not apparent from Miranda. If police continue to question after express request, then what? Exclusion of any statement (inculpatory, exculpatory)

c. Miranda Warningsi. Why warnings? Why need counsel? Not in text of 5A. No textual basis. ii. Warnings are prophylactic or constitutionally compelled? Prophylactic. States and

Congress can make up own system that meets Miranda’s requirements to safeguard privilege against self-incrimination or is as effective.

iii. Preferable to DP approach? 6A approach?iv. What if failed to warn but voluntarily confessed: before questioning? Y, can use. During

questioning? N. After questioning?d. Miranda within Packer’s Two Models

i. Majority: DP; gov’t must respectii. Dissent: Crime Control

E. Breaking Miranda Downa. In Custody

i. General Rule from Stansbury: 1) Facts: Ice cream truck driver with turquoise car

2) Holding: Look at all the objective circumstances surrounding the interrogation to determine whether there was formal arrest or restraint on freedom of movement of a degree associated with formal arrest.

3) Notes: Stansbury is a per curiam opinion. Remand for evaluation of objective circumstances. How would CA court apply? Cop asked if he wanted to go to the station; given option of how to get to station, told that they were asking him as possible witness.

ii. What about Officer’s Intent? Berkemer1) Facts: Cop saw driver weaving. Pulled driver over, asked him to get out of car.

Noticed he had trouble standing. Although at this point, officer mentally decided to arrest guy, didn’t convey this intent. Asked if driver under the influence.

2) Holding: Court said that was admissible because a reasonable driver in that situation wouldn’t believe that he was in a situation that was the functional equivalent of a formal arrest. Officer’s subjective intent “may be one among many factors that bear upon the assessment whether the individual was in custody, only if [1] officer’s views manifested to the individual, [2] how a reasonable person in that position would perceive their situation (if you don’t think you’re under arrest, not as presumptively coercive).

iii. Does Miranda Apply to Minor Offenses and Traffic Stops? Berkemer1) Same as above; driver questioned without Miranda warnings. Does roadside

questioning trigger Miranda?2) Holding: Miranda warnings required before custodial interrogation for any criminal

offense. It does apply to custodial interrogation or suspect accused of misdemeanor. May escalate from misdemeanor to felony—cop may not know at first.

3) But, roadside stop is not custody for Miranda purposes, because the nature of the stop doesn’t implicate the same concerns. Such a stop is public, brief, and involves fewer cops. Terry stop doesn’t require Miranda warnings.

iv. Miranda and In-Home Questioning1) Beckwith (1976): Daytime interview by IRS. Informed he was subject of criminal

investigation. Court ruled not a custodial situation—he was at home, not isolated, not same coercive situation, not same restriction on freedom of movement.

2) Orozco: Offivers woke at 4 a.m., questioned defendant while in bed. If surrounded, = restraint on movement, or “if deprived of his freedom of movement in any significant way.”

v. Miranda and the Stationhouse1) Mathiason (1977)

Officer told parolee that he wanted to discuss something with him, cop chose stationhouse as meeting place. At stationhouse, assured parolee that he wasn’t under arrest. Taken to closed room, accused of being involved in burglary. Confessed, then Mirandized.

Court said no restriction on freedom of movement; came voluntarily. Thai said this is borderline. Questioning at stationhouse not dispositive.

2) Kaupp (2003) Murder suspect implicated Kaupp. 6 officers arrive at 3 a.m., handcuff Kaupp,

drive him to murder scene, then to station, unhandcuffed, and placed in interrogation.

Reasonable person would think they were in custody.b. Custodial Interrogation

i. Innis is general rule

Exceptions to Warrant Plain view Exigent circumstances Searches incident to arrest Vehicles & containers Stop & frisk Administrative/regulatory circumstances Consent searches

4A First Principles

No search incident to arrest

Search if have PC of weapons/evidence on person, full search okay

Terry frisk okay if reasonable suspicion

Arrest alone authorizes full search [COURT CHOSE THIS. CC MODEL]

-Terry search insufficient to protect officers -Bright line rule for officers

Threshold for Search of Person Incident to Lawful Arrest

The court’s options