Crim Pro Outline 2009

Criminal Procedure, 2009

PART I: SEARCH AND SEIZURE (A) ENFORCING CONSTRAINTS ON THE STATE 1. THE EXCLUSIONARY RULE AND MAPPS Exclusionary rule: the fruits of searches conducted in violation of the 4th Amendment can’t be admitted into evidence. •

Weeks v US (1914): created the exclusionary rule for federal courts; if evidence obtained in violation of the 4th Amendment’s protections against unreasonable search and seizure could be admitted at trial, then the 4thbecomes of no value. The exclusionary rule is the only meaningful way to assure that public officials respect the 4th and it preserves judicial integrity by not sanctioning illegal search/seizure

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Wolf v CO (1949): The protections against unreasonable search and seizure of the 4th apply to the States via the 14th. However, the exclusionary rule, as a (federal) remedy/enforcement mechanism is not a constitutional requirement upon States in the same way that it is required in fed cts

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Mapp v OH (1961): overruled Wolf, extended Weeks: exclusionary rule applies to the States

Justifications and Criticisms of the Exclusionary Rule 1. Text: 4th offers no remedy at all, just says don’t perform unreasonable search/seizure; provides stds to obtaining a warrant 2. Originalist History: Mapp Ct doesn’t look to context of adoption of 4th—either it’s irrelevant or harmful for end goal 3. Precedents A. Boyd i. Links 4th and 5th; both spring from idea that all invasions by the govt or any forcible and compulsory extortion of a man’s own testimony or of his private papers to be used as evidence against him or to forfeit his goods goes against the 4th and 5th b/c violation is similarly grounded in self-incrimination, the 5th’s “exclusionary” principle should also apply to violations of the 4th. ii. Response: remedy is explicit in 5th, why’s it left out in the 4th? (possibly b/c other remedies like tort/damages apply); 5th is about courts and cases while 4th is about another location or domain so conceptual nexus is weak B. Weeks i. Said w/o exclusionary rule, 4th is of no value ii. Response: makes little sense considering there are other alternatives such as money damages 4. Practice Outside of Cts: A. At the time of Wolf, 1/3 of the states used the exclusionary rule but since then, there’s been a slight increase so that about 1/2 now use it—upward trend. B. Response: Conclusion depends on the moment in time the trend is looked at; prob is that don’t know what evolution of trend will be; trend here may be one way but about evenly spread. 5. Morality, Integrity, Legitimacy: A. Might undermine legitimacy of decision if factfinder knows that there’s more evidence but is not allowed to rely on it b/c it was improperly procured. B. Judges might be worried about letting in evidence that was improperly procured but might be more willing if alternate remedies to compensate for the illegality of the process exist. C. Responses: i. Response: Vast majority of motions to suppress are denied; if that is true, then the exclusionary rule has effectively compelled police to conform their investigations w/ the law; so while there might be some loss of reliable evidence, police conduct has improve ii. Even if a guilty defendant invokes the exclusionary rule, the rule acts to protect innocent persons from unlawful police conduct. 6. Criticisms on Efficacy: 1

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A. Unhelpful to the innocent victim who’s never charged but goes through ordeal w/ police or allows police to harass an innocent person b/c rule provides no meaningful deterrent FX i. Response: Yes incomplete, but if benefits on net, then that’s not a reason to dismiss the rule B. Blocks useful evidence; decreases respect for integrity of crim justice system i. Response: Possible though vast majority of suppression motions are denied ii. Response: Benefits of restructuring police conduct to comply w/ the law might outweigh C. Shifts resources away from guilt/innocence D. Wrong on incentives—value of rule depends on the assumption that police care about conviction rates as opposed to arrest/charging rates i. Hard to know ii. Response: increased use of search warrants or increased cooperation b/t prosecutors and cops might be evidence that the rule is restructuring police behavior E. Unlike damages, it’s a one-size-fits all, blanket rule that ensures only one outcome F. Under pressure, cts might be reluctant to exclude evidence or a find a 4th violation in the first place whereas might be more willing to find a violation if the remedy weren’t as costly as the exclusion of evidence. G. Side FX: judges might create exceptions to the rule; police may lie about how they got the evidence 7. Pragmatic Deterrence: A. Might be best answer to deter known constitutional violations esp in light of failure of other remedies, such as state tort actions. B. Goal might not be to punish the offending officer, but rather, to prevent or disincentivize him from engaging in illegal activity if the evidence found is of no practical value. i. Increased use of search warrants might be evidence that the rule is working to alter police behavior. ii. Tort remedies don’t always work—payouts for violations come from insurance coffers, potential plaintiff-victims are unsympathetic and thus unlikely to win and it’s morally suspect to let the govt pay its way out of a constitutional violation. 2. ALTERNATIVES TO THE EXCLUSIONARY RULE •

Damages and §1983 Liability • Sources of Law (1) State law against state/local D’s: ordinary tort law, constitutional law, statute (2) Fed law against state/local D’s: Sec 1983 (3) Fed law against fed D’s: Bivens Actions, FTCA • Advantages of damages over exclusion (1) For example, Mapp probably has a decent Sec 1983 claim; if she wins she could recover attorneys’ fees and possibly sue for injunctions. (2) Might avoid some of the criticisms of the exclusionary rule: (A) Tailored remedy instead of a one-size-fits all rule (B) Applies even to people who aren’t charged or who never make it to court (C) State and federal law can form the basis of the remedy (D) Damages claims can involve other things including claims for recovering attorneys’ fees, injunctions etc. (E) Is an offensive weapon that highlights specific officers, perhaps makes them socially or politically accountable • Disadvantages of damages (1) Rank ordering relative injuries might be relatively easy to get a consensus on (see class experiment) but the more gradations of money damages makes valuation a prob (2) Monetary awards might be too small to justify litigation (3) Absolute/qualified immunity or indemnification might not lead to changed behavior; monetary awards often come out of insurance so the lack of direct liability reduces incentives to change behavior. 2

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(i) Though FX on smaller communities/police forces might be greater b/c of larger impx on fewer resources (ii) Might be difficult to train out certain prejudices or behaviors (4) Victims-P’s are not always the most sympathetic plaintiffs, thereby reducing likelihood of winning

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Sec 1983: provides a federal cause of action for constitutional violations by a state or local official; state can’t be sued (b/c of sovereignty issues) but municipality can be held liable for policies or customs that result in constitutional violations.

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Bivens Actions: akin to Sec 1983 liability for fed officers

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Anderson v Creighton (1987): damages are available against a police officer who has violated the 4th only when he has behaved w/ something akin to gross negligence—where the governing law and its application to the circumstances are clear and the officer has nonetheless disregarded them. ○ Doctrine before getting to issue of QI: Ct must first determine if there was a 4th violation by looking at whether D’s conduct could reasonably have thought consistent w/ clearly established law, based on the info that D possessed (note relp b/t doctrinal rules and stds.) • Rule: “Clearly established”-more particularized inquiry; contours of the right must be sufficiently clear that a reasonable official would understand that what he’s doing violates that right. • Rule: the precise content of most of the constitution’s civil liberties guarantees rest upon a reasonable balance of govt need and individual freedom. • If cop is going to err, err on the side of not violating: ✔ Cops, acting in good faith, might be hesitant to act—they could perhaps be slowed down to the point where real harm to some invisible victim materializes—we want police discretion for the gray areas but no discretion if it’s something that the reasonable officer would’ve known. ○ The more rules a court generates, the easier to find violations and liability. But at some point, there will be too many rules for even the reasonable officer to know. ○ Cts are just one way to enforce constraints. ○ Tension in holding govt officials liable: damages actions might be the only realistic avenue for vindicating constitutional guarantees but permitting damages suits also entails substantial social costs including risk of personal liability and harassing litigation that impedes the discharge of an officer’s duties.

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So does Mapp start to look better? ○ Exclusionary rule coupled w/ damages makes Mapp look better b/c now even if damages doesn’t force cops to change, the exclusionary rule is a backstop (provided that cops are outcome-driven), but only for people who are actually guilty or get to trial. For the truly innocent who don’t get charged or go to trial, the exclusionary value isn’t useful to them. ○ On the other hand, to say that it does nothing for innocent people is difficult because at the outset, cops don’t know who is innocent or not. ○ Also, when a person is found guilty, he becomes less of a sympathetic plaintiff even if he has a legit claim. When nothing is found, the innocent P looks like a sympathetic P.

Injunctions • Lyons Rule: to get Art III standing to sue for an injunction, P must show that either he suffers from a real or immediate threat that he’ll be wronged again or that the wrongs or harms occur as a result of a policy or custom. • Los Angeles v Lyons: In a suit for damages and an injunction, P alleged that D-police officers had used a ‘chokehold’ on him during a traffic violation stop even though he posed no threat. B/c P 3

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had not shown that he suffered from a real or immediate threat of being subjected to the same harm, or that chokeholds are applied to every citizen who is stopped for a traffic violation, he gets no Art III standing to sue for an injunction. Prob w/ injunctions: might force the court into being a continuous overseer (see prisons, deseg) Potential power thereof: ie no QI; DoJ using 42 SEC 14141 (allows DoJ to seek civil remedies against police depts./agencies for a pattern or practice of violating constitutional rights or fed laws).

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Prosecutions for willful rights deprivations

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Admin regulations-employer based sanctions; punishments handled internally; there’s a question of whether self-regulation or self-discipline would really work.

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Political control-mayors, legislatures, civilian review boards etc.

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(B) TRIGGERING 4 AMENDMENT CONSTRAINTS TH

THIS IS ALL ABOUT WHETHER THE 4

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COMES INTO PLAY AT ALL.

1. “THE PEOPLE” AND VERDUGO-URQUIDEZ • • •

The 4th represents a balance b/t the need of govt agents to gather evidence and the right of citizens to be free from govt intrusions The 4th: The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause supported by persons or things to be seized. US v Verdugo-Urquidez: ○ 4th applies to “the people:” who are part of the national community or who have otherwise developed a sufficient connection w/ this country to be considered a part of that community; that includes: • US citizens • US citizens stationed abroad • Aliens who are here lawfully and voluntary ○ 4th does not apply to: • D: a resident/citizen of Mexico; DEA gets permission from the Mex authorities + searches his Mex house; D seized in Mexico by Mex cops and brought to a US border patrol station in CA; although here lawfully and involuntarily, no 4th protections ○ Open q of whether 4th applies to aliens here voluntarily but illegally ○ Key points: • “National community” and “sufficient connection” test is vague. • D could’ve argued that his drug trade to the US gave him “sufficient connections” but that would be an admission of guilt and an awkward connection. • Unlawful connections to the US thus don’t seem to be enough to get 4thAmendment protections. (Should raise concerns for out-of-status aliens in the US). ○ Concurrence, Kennedy and Stevens • Aliens who are lawfully present in US, like D, are among those “people” entitled to 4th • But b/c search done w/ Mex authorities’ consent, search can’t be called “unreasonable” • Warrant Clause has no application to searches of noncitizens’ homes in foreign jurisdictions b/c American judges have no power to authorize such searches • Hypo: would probably say that a nonresident alien who’s been living here for enough time to gain “sufficient contact,” but is now out-of-status would probably get 4th protections ○ Dissent • D is being treated as a member of our community b/c he’s being investigated/prosecuted in the US, thus the “sufficient contacts” have been established and he should get 4th protections ○ There might be national intelligence exceptions for US forces to search US citizens abroad

2. “SEARCH,” THE KATZ TEST AND “PRIVACY” THE KATZ TEST • Threshold q: b/c the 4th only protects against “unreasonable search and seizure,” if there’s no “search” or “seizure” to begin with, then it’s not subject to restriction and cop need not justify it • Katz Rule: Harlan’s 2-part test: (1) Person needs to exhibit an actual, subject expectation of privacy and (2) Expectation must be one that society is prepared to recognize as reasonable (A) For motions to suppress, a judge will decide, but he’ll hear arguments from both sides. 5

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(B) There’s a concern that w/ enough govt officials saying no privacy here and pointing to specific locations, then expectations will be lowered if judges side w/ the govt. Katz v US (1967): FBI bugs public pay phone that D used to place illegal bets. SC held that even though the search was conducted reasonably, b/c it was done w/o a warrant, it was procedurally defective and therefore violated D’s 4th Amendment rights against unreasonable search and seizure. • Majority says the 4th protects people not places, but per Harlan’s concurrence, “what is protected” will turn, in part on the placewhich turns on people’s interests/expectations for that place. • The 4th governs not only seizure of tangible items, but extends to things that don’t depend on the presence or absence of a physical intrusion into a given enclosure. • Harlan’s concurrence has become the test. • Although the majority concedes that the search was conducted reasonably, the key is that whatever restraint or discretion was shown, it was self-imposed and not judge-imposed. Drawback to Katz: doesn’t give you an idea of what privacy is—privacy is a contested concept

INTERESTS PROTECTED BY THE 4 AFTER KATZ • Relevance of “places” survives Katz: location matters as a translation of people’s interests or expectations ○ Open fields rule: even w/ trespass on private open fields, no constitutional violation triggered b/c people don’t have the right interests there to trigger the 4th (Oliver v US) ○ Curtilage rule: caveat to the OFD; area surrounding the home where reasonable privacy expectations exist, thus warranting the 4th’s protections  US v Dunn factors to determine if curtilage was expected to be private:  Proximity of the area claimed to be curtilage to the home  Whether the area is included w/in an enclosure surrounding the home  The nature of the uses to which the area is put  Steps taken by the resident to protect the area from observations by people passing by • Privacy as a contested concept: ○ Can it be shared? Quite possibly. Is it limited to truly personal things? Not really. ○ Privacy and secrecy intertwine; is about restricting access or the flow of information ○ Location may matter even though there’s nothing confidential or revealing about the place itself ○ General bases for privacy: informational vs emotional vs autonomy  Informational: individual has the right to control info about himself or restrict access to or disclosure of information; right to secrecy  Emotional: emotional distress caused by physical invasion/disruption or inconvenience  Autonomy/Decisional: ability to make one’s own decisions or act on those decisions, free from govt or unwanted interference ○ Types of args that can be made in favor of/against forms of privacy: Normative vs empirical vs legal analogical  Normative: what ought to be, to uphold a particular value  Empirical: observable  Legal analogical: by analogy to another, *similar* case; validity depends on justification for analogy TH

APPLICATIONS OF KATZ • • • •

Florida v Riley: aerial surveillance (w/o warrant) in navigable airspace at 400 feet by helicopter of D’s backyard and partially uncovered greenhouse is not a “search” California v Ciraolo: aerial surveillance (w/o warrant) in navigable airspace at 1000 feet by airplane of D’s backyard is not a “search” US v White: govt agents can offer testimony of conversations transmitted/heard b/t D and a wired undercover govt agent; not a “search” California v Greenwood: cops rummaging through trash left out for pickup is not a search b/c no legit expectation of privacy since snoops, others, scavengers etc could’ve accessed the trash 6

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US v Karo: beeper used only to track location of beeper-laden can over public roads is not a “search” Kyllo v US: thermal-imaging regarding the interior of a home could not otherwise have been obtained w/o a physical intrusion into the house, so yes, this is a “search” Illinois v Caballes: a dog sniff of a car trunk conducted during a concededly lawful traffic stop that reveals no info other than the location of a substance that no individual has a right to possess does not violate the 4th LEGITIMACY OF THE PRIVACY EXPECTATION IN TERMS OF PUBLIC ACCESS THEORY • Public Access Theory: D has no reasonable expectation of privacy against cops if D cannot reasonably expect equivalent privacy as against members of the public ○ Space being occupied or method being used by cop is used frequently enough by the public to nix any expectation of privacy ○ Cop is not doing something that would be considered illegal if member of public did it ○ Other intimate details not observed by cops ○ Naked eye visual observations vs something “inherently more intrusive” ○ Cops not causing other, incidental harms as a result of method/space chosen or impeding normal use • Physical or tactile manipulation is inherently more intrusive and may be a “search” • California v Ciraolo ○ Facts: Cops used an airplane at 1000 feet + the naked eye to look into D’s backyard, where they found marijuana. Cops had no warrant to look but based on these observations, they were able to secure a warrant and investigate the yard for drugs. ○ Held: In an era where private and commercial flight in the public airways is routine, property owner can’t have reasonable expectation that his marijuana plants would be constitutionally protected from being observed w/ naked eye at an altitude of 1000 feet. ○ Key: 1000 feet is legally navigable; airplane use by the public is common • Florida v Riley ○ Facts: Cops used a helicopter at 400 feet to look w/ naked eye into D’s partially open greenhouse for drugs. Roof is mostly covered, not visible from street and “do not enter” signs posted. Based on observations from helicopter ride, cops obtain a warrant that leads to a search and conviction for marijuana possession. ○ Held: The use of the helicopter did not amount to a “search.” ○ Plurality reasoning:  D probably had a subjective expectation of privacy—half of Katz met.  Per Ciraolo, chopper was at an altitude in FAA legally navigable airspace.  If any member of the public could do what the cop did (fly at 400 feet) then no 4th prob—and yes they can.  Chopper did not violate the law in some other way.  Chopper did not interfere w/ D’s normal use of the greenhouse or other part of curtilage.  No other intimate details of the house or curtilage were observed.  No other harm—no undue noise, dust or wind. ○ O’Connor’s concurrence:  Reasonable privacy expectations for street view and aerial view can be diff.  Fact that chopper flew at FAA legally allowable level doesn’t automatically mean the individual has no reasonable expectation of privacy.  The proper inquiry under Katz would be an empirical look at what members of the public are actually doing—are they flying choppers at 400 feet? We know that there’s considerable flying at 400+ feet so no reasonable expectation there, but if public use at 400 feet or less is infrequent enough, then privacy expectation might be legit.  D should bear the burden of proving that his expectation of privacy was reasonable, thus a “search” w/in meaning of 4th took place. 7

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California v Greenwood ○ Facts: Cops go through D’s trash that had been left out on a public street for pick up by the local garbage service, per city rule. ○ Held: D cannot have a reasonable expectation of privacy in trash left out to be picked up as it’s easily accessible by members of the public, thus cops can’t be excluded as well. D did not waive any right to privacy in the trash b/c he never had any right to privacy in the trash. ○ Majority:  Trash is exposed to members of the public such as snoops, scavengers etc thus it’s equally exposed to the cops.  Use of opaque bags doesn’t matter.  Fact that city requires use of the service in lieu of burning trash doesn’t matter.  Fact that D’s trash is commingled w/ others’ trash doesn’t matter b/c public still has access to it. ○ Dissent, Brennan  B/c most members of society would be appalled at the idea of authorities or others sifting through their trash (ie emotional theory of privacy) and finding out intimate details of their lives, society would recognize a privacy interest in trash.  The mere possibility that some member of the public might get at the trash isn’t enough to prevent a legit expectation of privacy by D. Bond v US ○ Facts: Cops physically manipulated D-bus passenger’s canvas bag placed in an overhead luggage compartment. ○ Held: Yes, this was a “search,” done in violation of the 4th. ○ Reasoning:  SC rejected govt’s analogy to the public access theory used in Riley/Ciraolo.  Instead SC said that while a passenger can reasonably expect other members of the public to handle bags in an overhead compartment, one would not expect the type of “probing tactile examination” conducted by the cop in this case.  Aerial surveillance like Ciraolo/Riley involves visual observation but the tactile or physical manipulation used here is inherently more intrusive.

Legitimacy of the Privacy Expectation in Terms of Investigation that Only Reveals Illegality • Theory:there can be no legit privacy interest in illegal activity. Those engaged in illegal activity can argue for 4thAmendment protections only b/c there’s no way to tell at the outset of the investigation whether or not there’s illegality. But if the investigative method can only tell whether or not illegal activity exists, and cannot divulge legal + innocent activity, then the investigation doesn’t compromise any privacy interest that would otherwise be protected by the 4th. • Illinois v Caballes (dog sniffs) ○ Facts: State trooper pulled D over for routine traffic violation. As trooper is writing ticket, a second cop, who had heard about the stop over the transmission, goes to the scene w/ his drug sniffing dog. Dog alerts at the trunk. Cop opens trunk, finds marijuana and arrests D. ○ Held: A dog sniff conducted during a concededly lawful traffic stop that revealed no information other than the existence of an illegal substance is not an illegal ‘search.’ ○ Reasoning:  SC says no legit privacy interest in possessing contraband.  Despite evidence on error rate of drug sniffing dogs, SC is persuaded that the investigation (unlike Kyllo) is designed only to reveal contraband and not any other intimate details.  D didn’t offer evidence of false positives/negatives to justify the argument that the alert was erroneous or leads to disclosure of lawful yet private info. 8

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Legitimacy of the Privacy Expectation in Terms of Sensory-Enhancing Technology • Sense enhancement theory:if govt agents use sensory enhancing devices that do no more than aid cops in finding info that they could’ve found through their own sensory perception, then it’s not a search. (Sense substitute.) But if the device results in finding out intimate details or info that could not have otherwise been found w/o a physical intrusion (that requires a warrant) then that is a “search.” • Kyllo Test for a “search:” (1) Human sense-enhancing tech (2) To reveal info about a home’s interior (3) That couldn’t have been acquired otherwise w/o physical intrusion (4) At least if the technology is not now in general public use • Dow Chemical Test for a “search:” if D has no privacy expectation in information to begin with, then use of sense-enhancing devices is not a search, even if the agent could not have originally obtained the info by using his own senses unaided. • US v Knotts: no search took place when police monitored a tracking beeper attached to a drum of chloroform used to manufacture illegal drugs. Sc concluded that a person travelling in a car on public roads has no reasonable expectation of privacy since his travel conveys to everyone that he is traveling in a particular direction. • US v Karo: ○ Facts: DEA agents place tracking beeper on drum of ether w/ether seller’s permission. Seller then sells to D. Using the tracking beeper, DEA agents track beeper over several locations, ultimately ending up at D’s rented house in NM. During course of tracking, agents also videotaped storage facility where can was stored temporarily; agents also observed that the windows of the NM house were open on a cold day. All these observations were used to secure a warrant to search the NM house. ○ Held: Monitoring the beeper over the public roads was ok. Monitoring the beeper in a private residence is not ok. But since lawful and unlawful info was used to secure the warrant, the warrant still stands since based on enough lawfully acquired info. ○ Reasoning:  Beeper is being used as a substitute for visual surveillance and mirrors visual sighting by agents, thus when the beeper is offering info that a member of the public could’ve gotten through visual observation, then it’s ok.  But when beeper-laden can enters private residence, then that info can’t be used b/c a private party couldn’t see w/o aid either, thus cops can’t do lawfully what a private party can’t do lawfully.  Depends on what info is revealed by the beeper and whether or not that info could’ve been procured by a member of the public, unaided or unintrusively. • Kyllo v US: ○ Facts: DEA agents suspected D of using halide lights to grow marijuana. To determine if D was using the lamps, agents used a thermal imaging gizmo to scan the house. Scan revealed that house emitted unusual heat patterns. Based on the data, agents secured a warrant. They found an indoor marijuana growing operation. D was convicted. ○ Held: Thermal imaging scan of the house violates the 4th b/c the equivalent information could not have been obtained w/o a physical intrusion into the house. ○ Reasoning:  Generally, privacy expectations are at their highest for the home.  When govt uses a device that is not in the general public use to explore details of the home that would previously have been unknowable w/o physical intrusion, the surveillance of the house is a “search” and is presumptively unreasonable w/o a warrant.  There’s no connection b/t the sophistication of the technology and the intimate details that it can capture—heat sensing tech can disclose when people take a bath or when a light is left on, for example. 9

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Dow Chemical v US ○ Facts: govt officials flew over Dow’s commercial property and took pics of the areas b/t Dow’s buildings using a very expensive camera. Pics could be enlarged to show objects that are1/2 inch in diameter. ○ Held: The use of the camera was not a search. Dow had no legit expectation of privacy of the area b/t its buildings—at least not w/ respect to aerial surveillance, thus aerial surveillance not a search. ○ Reasoning:  If D has no privacy expectation in the info to begin with, then using senseenhancing devices is not a search, even if it gives the officer info that he couldn’t have acquired unaided.  But if the device could obtain private information that could not be obtained through sensory perception, then the use of such devices is a “search.”

3. “SEIZURE” • •

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Two-part inquiry: Was there a seizure? If so, was it unreasonable? Types: A. Involving physical contact i. Intentional acquisition of physical control-Brower v Inyo County ii. Physical force is applied to the person w/ the intent of restraining him-CA v Hodari D B. Other situations i. Nonphysical show of authority AND person submits to the authority—Hodari D dicta ii. Reasonable person would not feel free to go or disregard the police officer-Bostick Free to leave test: would the innocent reasonable person feel free to walk away or leave? Bostick Test: would the (innocent) reasonable person feel free to terminate the encounter w/ LEO or decline the LEO’s request? Florida v Bostick ○ During narcotics sweep, LEO board bus that Bostick is a passenger on. Ask D to see his luggage and D gives consent. LEO find drugs. Bostick sought to suppress the drugs b/c at the time he gave his consent, he wasn’t really free to leave b/c the bus was about to depart. ○ Held: The “free to leave” test doesn’t apply to D here b/c he had no desire to leave as the bus was about to depart. Case is remanded to determine if LEO’s conduct was a seizure under the modified std of whether the police conduct would have indicated to a reasonable person that the person was not free to decline the LEO’s offer or otherwise terminate the encounter. ○ Practically speaking, D was not “free to leave” the bus as it’s his mode of transportation and he would not have left it even if the police were not present. ○ He’s sort of being punished because he happened to choose the bus as his mode of transport. Since he “chose” this mode, he wasn’t really “coerced” into staying on the bus. The truth is, there’s a confluence of factors that lead to D being on this bus, so it’s hard to say what’s the real cause and whether he’s there voluntarily or not, in a meaningful way. ○ D’s rights have to balanced w/ the concern that we don’t want LEO to walk away if person has given consent either. Brower v Inyo County: car crash into a police road block is a “seizure” b/c the police intended to force the car to stop US v Drayton ○ Same bus sweep facts as Bostick; D’s here argued that their “consent” wasn’t really voluntary as they too were on a bus. 11th Cir agreed and said that consent of passengers during a bus sweep is involuntary unless LEO advice passengers of their right not to cooperate and to refuse consent. ○ SC: citing Schneckloth and Robinette, no bright line rule required by 4th; LEO need not advise bus passengers of these rights. CA v Hodari D 10

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D is chased on foot and discards crack. LEO tackles D and also later finds the discarded drugs. Crack was used as evidence against him. D argued that but for the foot chase, D would not have discarded the crack. D argued that the LEO pursuit was a seizure since a reasonable person would have considered it coercive and not feel free to leave. Held: SC rejects. The foot chase was not a seizure b/c while there was a show of authority, D had not stopped running in response to that authority. Thus the seizure didn’t occur until D was tackled. Rules:  A seizure automatically occurs when an officer physically touched a suspect w/ the intent of restraining him  A nonphysical show of authority is not a seizure until the suspect also submits to that authority

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(C) THE CONTENT OF 4 AMENDMENT CONSTRAINTS TH

1. PROBABLE CAUSE • • •

Rule: Probable Cause: belief as to the probability of a crime/evidence of a crime that justifies the State’s intrusion into a citizen’s privacy and security interests The “seriousness” of the crime doesn’t matter as a formal matter but in practice, is probably folded into the discretionary calculation of LEO/judges Rule: Under the 4th, LEO cannot get a warrant to search unless he can find PC via facts or circumstances to justify the intrusion; merely asserting a belief or suspicion of illegal activity is not enough to establish PC. ~Nathanson v US

1. Informants A. Confidential tipsters help out law enforcement; perhaps keeping their identity a secret helps to weigh the objectivity of the info by not being infected w/ bias as to the source and helps protect the tipster from backlash. B. On the other hand, if anonymity is always kept, then the anonymous tipster has less incentive to remain truthful; might also incentivize LEO to fabricate info to use as the basis for a warrant. C. The problem is that judges can’t interrogate the source of the info or test the veracity of the information. If they can’t test the credibility, one solution might be to require more than just corroboration of innocent data. 2. Ye Old Spinelli Test and Informants A. To establish PC based on an informant, a court has to consider separately: i. Informant’s credibility by track record or otherwise, and ii. Informant’s basis for knowledge of the allegations B. According to White’s concurrence, police corroboration (independent findings that support the informant’s info) can make up for lack of credibility or basis of knowledge. C. The problem is, how much corroboration is tricky; corroboration may or may not be enough to get over the lack of either or both prongs. D. This rigid two-prong test was rejected in Gates, in favor of a more holistic inquiry. 3. Gates Test for PC: A. Objectively reasonable LEO B. Consider the totality of the circumstances known to the LEO, including corroboration (independent verification by LEO) of informant’s assertions + basis for belief and veracity C. Is there a “fair probability” or “reasonable ground for belief” that a crime/evidence of a crime can be found? This is not a “more likely than not” std (but is hazy—plausible innocent explanation not dispositive) D. Draper is the paradigm case where corroboration mattered. 4. Basis of knowledge and Veracity A. LEO’s oath can be basis of knowledge or veracity B. Also look at statements against interest/declarant’s motives 5. Why did Gates reject Spinelli’s rigidity? A. Lower cts developed elaborate legal rules to enforce two-pronged test that were inappropriate given that affidavits are prepared by nonlawyers in the stress of an investigation B. Application of rigid test lead to inappropriately denying warrants C. Rigid test made it difficult, if not impossible, to utilize anonymous tips, which are very useful D. In light of higher scrutiny of affidavits under two-part test, LEO might resort to warrantless searches in lieu of going through the harder process of getting a warrant 6. Why not have a higher std of proof, a la trials? A. PC std isn’t used to convict someone, so at time of search or seizure, a lower std is ok B. There is an imposition on the subject but it’s worth it as the state has a higher burden of proof to convict at trial—graduated system: final determinations have stricter requirements 12

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7. Particularity Requirement for PC A. Pringle: If there are multiple people at the scene, ie in a car, and there’s PC to reasonably believe that any or all are part of the common enterprise of illegal activity, then LEO can arrest all B. Ybarra: Aurora Tap Bar case; where std is PC, a search or seizure of a person must be supported by PC particularized to that person. A person’s mere propinquity to others independently suspected of criminal activity does not, w/o more, give rise to PC to search that person; no common enterprise C. Di Re Rule: any inference that everyone on the scene of the crime is a party to it must disappear if there’s a govt informer involved and he singles out the guilty person 8. Ornelas and Historical Facts: to determine whether a cop had PC to arrest an individual, look to the events leading up to the arrest and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable LEO could amount to PC 9. Ornelas and Standard of Review A. Appellate cts are generally supposed to defer to the PC determinations of magistrates/trial cts when a warrant was issued; appellate ct looks for “substantial basis” for PC determination-Gates B. But if no warrant was sought, then: i. De novo review of the ultimate PC determination-Ornelas ii. But findings of historical fact are still reviewed only for “clear error” and “due weight” is given to trial ct/magistrate and LEO’s • • •

•

Nathanson v US: merely asserting a belief or suspicion of illegal activity is not enough for PC Draper v US: paid informant’s 1) very specific description of suspect and his drug possession, along with 2) evidence to corroborate description and 3) history of offering trustworthy tips is sufficient to establish PC for officer to arrest D Spinelli v US: two-pronged test rejected in favor of Gates for PC A. Facts: FBI obtains warrant to search D’s house based on following affidavit: i. FBI has tracked D’s movements. ii. FBI checked w/ phone company and found that his apt contained two telephones listed under a third party name; phone numbers had id numbers. iii. FBI believed D to be a bookie and gambler. iv. FBI has been informed by a confidential and reliable informant that D is operating as a bookie and gambler using the phones w/ the above named id numbers. B. Held: Harlan, rejecting the totality of the circumstances test in favor of the two pronged credibility and veracity test, finds that the tip doesn’t contain sufficient info for PC. C. Reasoning: i. The first two arguments are of innocent activity and can’t sustain a warrant. ii. The second is a bald assertion of suspicion and not enough under Nathanson. iii. The fourth fails to establish 1) informant’s credibility and 2) how informant knows what he knows. Thus ct has no way to measure the reasonableness or reliability of the tip. IL v Gates: A. Facts: LEO receive an anonymous letter that describes in great detail an upcoming drug purchase by a couple; LEO tail the couple and are able to corroborate some but not all of the info in the letter. Based on affidavit of observations + anonymous letter, LEO apply for a search warrant. They find drugs. Couple is indicted and move to suppress evidence seized during the search. B. Held: Under totality of the circumstances, PC was met even if the two prongs of Spinelli weren’t strictly met. C. Reasoning: i. PC is a practical, commonsense determination made by looking at the totality of the circumstances. ii. Here, the partial corroboration as well as detailed nature of the letter are “reasonable grounds for belief” that a crime/evidence of crime was there. iii. The two prongs of Spinelli are not rigid requirements; proof of either can make up for lack of the other. 13

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•

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•

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iv. The Drapertest for corroboration is back in and matters. (Spinelli said corroboration wasn’t useful.) Ornelas v US A. Facts: LEO spot a station wagon w/ CA plates (which are often used to transport drugs) in hotel parking lot. They check drug database and learn that the two men in the car are drug dealers. They ask the men if they have drugs; men say no. They then ask to search car and men give consent. LEO notices a loose panel, takes it off and discovers cocaine. B. Held: This was a warrantless search, thus an appellate ct reviewing lower ct’s findings on PC has to review it de novo. Maryland v Pringle A. Facts: LEO stops car w/ 3 passengers for speeding and notices a wad of bills. Asks to search and driver/owner consents. LEO finds drugs; asks all 3 about the owner of the drugs but no one admits to anything so LEO arrests them all. At the station, D-Pringle confesses but moves to suppress on the basis that PC was not particularized to him to justify search. B. Held: It’s entirely reasonable from these facts to infer that any or all 3 occupants had knowledge of and exercised dominion over the cocaine, thus a reasonable officer could conclude that there was PC to believe that D committed the crime of possession. C. It’s reasonable to think that D and the other car passengers were engaged in a common enterprise. Ybarra v Illinois A. Facts: LEO execute search warrant for a bar and bartender for drugs. While they are there, they also frisk another bar patron and find drugs on him. B. Held: There was no PC to search the bar patron thus search of his person was illegal and drugs should be excluded from evidence. C. Rule: where std is PC, a search or seizure of a person must be supported by PC particularized to that person. A person’s mere propinquity to others independently suspected of criminal activity does not, w/o more, give rise to PC to search that person; no common enterprise Devenpeck v Alford A. Facts: LEO pulls over D for suspicious behavior and possibly acting like a police officer. During question, LEO discovered that D was taping their conversation and arrested D for violating state privacy laws that made it a crime to tape cops (turns out, it’s not really a crime.) Trial ct dismissed charges and D filed a Sec 1983 claim arguing that his arrest violated the 4th. B. Issue: Is an arrest lawful under the 4th when the crim offense for which there is PC to arrest (here, arguably impersonating an LEO or obstructing an officer) is not ‘closely related’ to the offense stated by the LEO at the time of the arrest? C. Held: Still lawful. A warrantless arrest is reasonable under the 4thif, given the facts known to the LEO, there is PC to believe that a crime has been or is being committed. There is no basis for imposing the additional limitation that the offense establishing PC be “closely related” to and based on the same conduct as the offense identified by the arresting officer at time of arrest. Reversed. D. Reasoning: i. While it’s good practice to inform the arrestee of the reason for their arrest when they are taken into custody, SC has never held that this is constitutionally required. ii. LEO’s subjective reason for making the arrest (violation of privacy laws) need not be the criminal offense as to which the known facts provide PC (for impersonating a LEO). iii. If there is info known to these officers at the time of a crime, but the officer arrests and says another crime, that is OK.

2. WARRANTS The Process to Get a Warrant

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1. Generally, the 4threquires every search or seizure to be made pursuant to a warrant issued upon finding PC. The warrant authorizes LEO to make the search/seizure/arrest and spells out the terms and restrictions of the intrusion. 2. Concerns for having a warrant requirement: process burden and maybe less protection of liberties that we want protected; might also threaten or decrease activity levels 3. Oath or affirmation: 4. Neutral magistrate: A. Justification: interposing an unbiased judicial official b/t the citizen and the police is a good thing b/c police are motivated by the competitive enterprise of rooting out crime and thus may make mistakes on PC or act aggressively to “find” PC. B. Concerns: judicial creativity, incompetence or weakness 5. Particularity Requirement A. Warrant has a particularity requirement w/ respect to people, places and things B. Anticipatory Warrants: i. Are not categorically unconstitutional a. There’s textually no 4th Amendment support for anticipatory warrants so either they should have no restrictions b/c of the lack of constitutional restrictions or that they are ok when a judge, looking at PC, says they are ok. b. As a policy matter, it’s easy to validate b/c it ties LEO’s hands to some future event that will create the PC they need to enter and that’s not so different from regular warrants ii. AW: a warrant based on an affidavit showing PC that a. at some future time (but not presently), b. certain evidence of crime will be located at a specific place c. when the warrant is executed iii. Contain a triggering condition: condition precedent, in addition to the ordinary passage of time a. It must be true not only that if the triggering condition occurs, there is a fair probability that contraband or evidence of crime will be found in a particular place AND b. There is PC to believe that the triggering condition will occur iv. The PC requirement looks to whether evidence will be found when the search is conducted, thus in some sense, all warrants are “anticipatory” v. Grubbs/Garcia: when an AW is issued, “the fact that the contraband is not presently located at the place described in the warrant is immaterial, so long as there is probable cause to believe that it will be there when the search warrant is executed.” vi. Grubbs and the Particularity Requirement for AW’s a. The 4th only requires that warrants describe w/ particularity 1) the place to be searched and 2) the thing to be seized. b. Warrant itself need not describe the triggering condition. c. Here D argued that a requirement that the warrant describe the triggering condition would assure the individual being searched of the lawful authority to search as well as the limitations on the search. SC rejects. The Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant but rather: 1) Ex ante: the deliberate, impartial judgment of a judicial officer b/t the citizen and the police protects the citizen or 2) Ex post: a right to suppress evidence improperly obtained and a cause of action for damages. Executing the Warrant 1. “Knock and Announce” Rules: A. Rule: Before entering to execute warrant, LEO must “knock and announce” their presence but there are exceptions that have almost become the rule. B. Banks/Wilson v Arkansas: 4th requires police to “knock and announce” themselves before entering premises to execute a warrant absent some law enforcement interest that establishes the reasonableness of an unannounced intrusion C. US v Banks: 15

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i.

Facts: In the course of executing a search warrant for drugs, LEO knock and announce. They wait 15-20 seconds before forcing entry w/ a battering ram. They find drugs and D is convicted. D moved to suppress the drugs, arguing that the 15-20 second wait was unreasonably short. ii. Issue: After knocking and announcing, how long must LEO wait for someone to answer the door before forcing entry? iii. Held: LEO must wait for a reasonable amount of time before forcing entry. iv. Rule:The “reasonable waiting period” is pegged to the exigency or risk of evidence destruction. a. Here, LEO were executing search warrant to search for drugs. Waiting 15-20 seconds before forcing entry w/ a battering ram is reasonable b/c of the high risk of destruction of evidence/contraband by D. b. Alternatively, if LEO were executing search warrant for stolen piano, that is harder to get rid of, thus more waiting time is warranted. c. You can’t peg the wait time to the amount of time needed to answer the door—then people in bigger houses would always get more time. v. Property Damage a. Does the use of the battering ram matter? Outside of the exigency case, cts seem willing to call for a longer wait time to avoid property damage. b. Rule: In the absence of exigency, longer wait time to avoid property damage should be part of the reasonableness calculation. D. What would D’s remedy in Banks be if his 4th Amendment challenge won? i. If D wants the exclusionary rule, he would have to argue that but for the unreasonably short wait period, he would have been able to destroy X amount of the drugs. Hard argument to make. ii. So D gets convicted. iii. If D wants damages for his property, he would have to argue that he could’ve saved his front door. The problem is that he’ll lose either on the door or the drugs, hard to argue that he should’ve had time to do both let alone either one. iv. If there is no exclusionary rule but there is a tort claim for property damage due to an unreasonable search or seizure, then convicted felons may demand damages? 2. No Knock Entries A. Richards v Wisconsin: in order to justify a “no knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous, futile or inhibit the effective investigation of the crime by for example, allowing the destruction of evidence B. Banks/US v Ramirez: SC made clear that the “no knock” justifications apply even when the officers must damage the property to make their unannounced entry; excessive or unnecessary destruction of property in the course of a search may violate the 4th even though the entry itself is lawful and the fruits of the search are not subject to suppression. 3. Presence of Third Parties During Execution A. Wilson Rule: the conduct of LEO must be related to the authorized intrusion B. Wilson Rule: the presence of third parties during execution of a warrant violates the 4th unless third party is there to further the law enforcement objectives, ie presence of victim who can then identify stolen property is ok C. Wilson v Layne i. Facts: LEO accompanied by WP reporter + photographer enter the home of P’s to execute an arrest warrant thinking that suspect lives there. They mistakenly subdue Mr. P thinking that he’s the suspect they are after—turns out that suspect is P’s son and he doesn’t live there. When LEO realize their mistaken, they leave. WP photographer took some photos but nothing was ever published. P’s sue LEO for money damages, arguing that the media presence violated the 4th rights. ii. Held: SC agrees. The 4th was not violated b/c of the mistaken identity but the presence of the media made it a violation. iii. Reasoning: a. SC rejects LEO’s argument that presence of media has PR benefits. The purpose of law enforcement does not include embarrassment. There’s a risk of humiliation, reputational damages and prejudice, especially to an innocent plaintiff. 16

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b. SC keeps stressing the special case of the home invasion, but despite the focus on the home, this is really about emotional privacy. c. SC is unanimous in finding a constitutional violation but no liability b/c of QI. Going forward however, a similar violation will probably result in liability. Warrant Not Required: -1- Exigent Circumstances Limitations 1. Requires a reasonable belief of exigency. 2. Mincey Rule: valid exigencies that justify a warrantless search: A. Evidence would be lost or destroyed-Mendez/Dickerson B. Hot pursuit of a fleeing suspect-Warden C. Public safety/victim protection D. Search warrant cannot easily be obtained 3. Mincey/Terry/Flippo Rule: the warrantless search is limited to the exigency that justify its initiation—the search must end roughly when the exigency ends; thus mere evidence at a crime scene, without more, is not enough to justify a warrantless search 4. Mincey v Arizona A. Facts: LEO + other agents, pursuant to a pre-arranged drug deal, shows up at D’s house for the buy. D’s acquaintance answers door and LEO bursts inside. Agents hear shots fired and sees LEO emerge from bedroom wounded so other agents enter to search for other victims and get medical help for one victim + LEO. They do not engage in any other searching. W/in minutes, DEA agents show up and for the next 4 days, perform an exhaustive warrantless search, seizing 200-300 things, which is used to convict D. B. Held: SC said that the 4-day warrantless search was not justified by exigent circumstances and that there is no “murder scene” exception to the warrant requirement. C. Reasoning: i. It’s unclear whether LEO’s initial seemingly forced entry is unlawful, especially considering this was a pre-arranged deal. But when other agents then hear shots fired, that is clearly exigent. Ct seems willing to green light the first phase since the second phase was clearly exigent circumstances.  The whole fight is about the 4 day search. ii. More paper work? It’s clear that they would’ve gotten a warrant had they asked for one, but SC says nonetheless, had to get a search warrant first—they had plenty of time. iii. Is Mincey effectively immune from prosecution? While the evidence from the 4 day search is out, the evidence collected while the agents were looking for other victims is still in. 5. Warden v Haydon—hot pursuit A. Facts: Cab company was robbed by armed robber; two cab drivers in vicinity followed the suspect and relayed his description to a dispatcher, who relayed the info to police. Police arrived at the scene and immediately searched the house finding the robber, two guns and the clothes that the robber had been wearing. B. Held: This was a valid warrantless search. C. Reasoning: i. The 4th does not require LEO to delay in the course of an investigation if doing so would gravely endanger the lives of others or their own. ii. Speed here was essential and only a thorough search of the house for persons and weapons could have ensured that D was the only man present and that LEO had control of all weapons. iii. Pursuit needs to be continuous and unbroken. 6. Mendez v Colorado A. LEO smelled marijuana smoke coming from a hotel room. They asked the manager to get the key to open the door and let them in. When he did, LEO found drugs + saw D flushing marijuana. B. Held: the smell of marijuana smoke justified the warrantless search. 7. Mendez v Dickerson 17

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A. LEO had a knock-and-announce warrant to search D’s house for drugs but before they announced or entered, there was a noisy scuffle w/ D and his friends outside of the house. LEO arrested D. LEO then entered house w/o any announcement, meaning the entry was not authorized by the warrant. LEO argued exigent circumstances—the noise from the scuffle would have alerted anyone else inside to dispose of evidence. B. Held: SC bought LEO’s argument and found the entry legal. Investigative Needs 1. Does the severity of the crime matter? A. The Welshcourt considered the seriousness of the crime (as defined by the penalty that WI attached to the violation) when it decided that the crime was not *important* enough to justify a warrantless home entry. In terms of destruction of evidence, the home or nonhome distinction doesn’t matter— both result in loss of evidence. i. Rule: The court is more interested in protecting the privacy of the home and is using the seriousness of the crime as a crude proxy. B. Why define the gravity of the offense by the punishment? Perhaps that gives you insight into how the populous deems the crime but it’s kind of really only *easy* to tell when the crimes are vastly different. 2. Special rules for the home: A. Rule: a warrantless search/seizure/entry into the home is presumptively unconstitutional. B. Welsh Rule: warrantless search/seizures [into the home] based on exigent circumstances seem to be more persuasive when the severity of the crime is greater (as defined by the state law penalty) C. Mendez/Dickerson Rule: warrantless entry into home justified if there’s a risk of loss of evidence D. McArthur: Limited seizure of D (making him wait outside/go inside while being observed) while LEO gets search warrant to search for drugs inside D’s home is not a violation of the 4th. It’s a lesser intrusion that balances law enforcement needs w/ home privacy interests. E. OJ Simpson/Brigham City: an objectively reasonable basis to believe that a home is occupant is seriously injured or imminently so threatened = entry w/o warrant is permissible 3. Welsh v Wisconsin A. Facts: LEO arrives on scene and speaks w/ bystander who says he saw D drive erratically, come to a stop in an open field and wander out, either drunk or sick. LEO figured that D went home so goes toD’s home. D’s stepdaughter answer door and LEOsomehow gets in, goes to the bedroom and finds D passed out drunk. LEO arrests D for drunk driving. LEO claims warrantless entry justified by exigent circumstances—imminent loss of BAC evidence and hot pursuit. B. Held: The warrantless entry into the house is not justified by exigent circumstances. C. Reasoning: i. Rule: a warrantless search/seizure of the home is presumptively unconstitutional ii. Rule: An important factor to consider whether any exigency exists is the gravity of the underlying offense. No exigency is created simply b/c there is PC to believe that a serious crime has been committed. When the govt’s interest is to arrest for a “minor offense,” the presumption of unreasonableness is difficult to rebut. iii. Here, application of the exigent circumstances exception for warrantless home entry cannot be sanctioned when there’s PC to believe that only a minor offense, like this one, has happened. The state has determined that this is a “minor offense,” and since it’s not punishable by jail time, it’s enough to justify a warrantless home entry. iv. Arresting D on a public street would be a diff case—no warrant necessarily, but no need to rely on logic of Welsh. 4. Illinois v MacArthur A. Facts: LEO goes with Tera to her trailer to get her belongings. They wait outside while she collects her stuff. She comes out and tells LEO that her husband, D, had marijuana inside. LEO want to go in and investigate but they have no warrant. So they force D to wait outside w/ them or enter the house only as the LEO are watching him while someone goes to get a warrant. LEO returns w/ warrant, they search and find drugs. D is convicted and argues that he was unconstitutionally seized when he was forced to wait for the LEO to return w/ a warrant. 18

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B. Held: The temporary seizure made while LEO were out getting a warrant was a small intrusion and justified based on the exigency of possible destruction of evidence. C. Reasoning: i. B/c D has denied consent for LEO to enter, LEO cannot enter w/o a warrant. ii. The restriction was reasonable and lawful: a. LEO had credible info that there was drugs inside. b. LEO had good reason to believe that if D wasn’t restrained, he would destroy the drugs. c. LEO made reasonable efforts to reconcile law enforcement needs w/ privacy needs—the wait for the warrant was 2 hours and D was allowed to go inside as long as LEO could observe his movements from the entryway. iii. Unlike Welsh,this isn’t a “minor offense” as defined by the penalties. B/c the home is considered so sacred, LEO can’t just rush in when D is not allowing them in but as long as LEO can observe D’s movements, the risk of lost evidence is reduced. iv. Hypo: If D bolted inside perhaps to destroy the drugs, then maybe that exigency would justify warrantless entry. v. Hypo: If LEO told D that they were waiting for a warrant and D just bolted inside, then is an exigency created? It’s hard to say b/c in some sense LEO created the exigency. Victim Protection 1. OJ Simpson/ Brigham City: LEO may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury if LEO have an objectively reasonable basis for believing that there is or will be violence -2- Plain View Doctrine 1. Plain View Doctrine: A. Is an exception to the warrant requirement and justifies seizures only, not searches B. If LEO is engaged in legitimate investigative activity and comes across evidence not covered by any warrant, the LEO is allowed to seize the evidence provided there’s PC to believe the evidence is the object of illegal activity from mere visual inspection C. Justification: as long as the LEO is acting w/in the scope of permissible police authority/the 4th is being complied with, the additional “intrusion” of seizing objects in plain view is minimal and no greater than the initial invasion of privacy interests 2. Limitations on the PVD: A. LEO must be lawfully located in the place from which the object to be seized can be seen B. LEO can seize objects in plain view (like a bag), but cannot search containers w/o a warrant or by some other exception to the warrant requirement C. There must be PC that the object in plain view is evidence of crime D. PC must be immediately apparent, w/o any need for additional searching i. Hicks Rule:to seize under the PVD, the PC to seize must be apparent from a mere visual inspection. A tactile but cursory search is not allowed under the PVD. ii. Arizona v Hicks: a. Facts: After hearing gunshots, LEO enter D’s apartment looking for the shooter, any other victims and other weapons. Apartment is crappy but LEO noticed two new stereos. LEO moved it to look at its serial number and learned that the stereo had been stolen. LEO then seized the stereo. AZ argued that while PC didn’t arise until after LEO had read the serial numbers and learned that it had been stolen, nevertheless under the PVD, LEO could seize anyway. b. Held: SC rejected AZ’s argument. Moving the stereo to read the serial numbers constituted a search that was outside the bounds of the exigency that justified entry into the apartment. The mere suspicion that the stereo was stolen doesn’t rise to level of PC that justifies the warrantless search. 3. Horton Rule: PVD applies even if the LEO expected to find the evidence in advance; there’s no requirement that the evidence seized was inadvertently seen. It’s ok for the LEO to “hope” to find evidence. A. Horton v CA 19

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i.

Facts: The search warrant issued in Hortonauthorized LEO to search and seize evidence of a robbery. LEO believed he might find weapons as well but weapons were not listed on the warrant. LEO turned out to be right—he found weapons and argued that seizure was proper under the PVD. ii. Held: SC agreed. a. To base the rule on the LEO’s subjective state of mind is difficult and silly since the 4th requires cts to ask what the reasonably objective person would do. -3- Special Case: The Automobile Exception 1. Evolution of the Exception: A. Carroll/Chambers Rule: If LEO have PC to believe that there’s evidence of crime in a car, they may seize or searchthe car or both. Justification is based not only on risk of the car/evidence moving, but also on the reduced privacy interests of a car. However if LEO find another container within the car, more rules apply, see 2. B. Carroll Doctrine: allows the police to searchan auto w/o obtaining a warrant if they have PC to believe that the car contains evidence of criminal activity. Exception does not depend on whether there was PC to arrest the driver or any particular individual; rather there must be PC to believe that evidence is somewhere in the car. Rationale seems to turn on car’s mobility, and therefore, evidence’s mobility C. Chambers Corollary: SC rejected the argument that the car exception permitted only the warrantless seizure and not the searchof the car. A warrantless search of a car, based on PC to believe that the vehicle contained evidence of illegal activity is justified not just by the risk of movement but also by the fact that intrusion into a car is a limited privacy intrusion. i. A search invades privacy concerns. A seizure invades possessory interests. ii. Individuals have less of a privacy interest in cars: a. Cars are a common means of transportation and are not intended to keep things private (unlike homes or b. Individuals driving in cars are in plain view c. Cars are heavily regulated so when you bring your containers into the car, you are doing so at your own risk d. The minimal intrusion of searching a car is the equivalent of seizing a car and waiting for a warrant to search it. 2. Detached or Moveable Containers—In and Out of Cars A. If there’s both PC as to the car and then to a container found inside the car: i. LEO can search the car and search the container where the PC attaches under Acevedo. But the scope of the search is limited to the PC. ii. CA v Acevedo: a. Held: Police may search any container located in a car, w/o a warrant, as long as they have PC to believe that it holds evidence of crime. b. Dissent: After Acevedo, LEO needs a warrant to open a container—until the container is placed in a car. Moreover, there is still the need to determine whether there was PC to search a container found in a car. iii. Hypo: X leaves her suitcase on the sidewalk and a LEO has PC to believe that counterfeit cash is inside the suitcase but the LEO has no W. a. No exigent circumstances as long as LEO maintains sight of suitcase or seizes the suitcase but needs warrant to search. iv. Hypo: X places her suitcase in the trunk of a sedan that is parked on a ramp and then exits the ramp. a. No warrant necessary, LEO can search the car and the suitcase. v. Hypo: What if LEO finds a locket in the suitcase. Can they search the locket? a. Probably not unless there’s PC to find cash in the locket. They need a warrant to search the locket. vi. Hypo: X is carrying her suitcase and reaching to open the trunk of her parked car when LEO seizes the suitcase and searches it. 20

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a. LEO can’t search w/o warrant. Suitcase not in the car. vii. Hypo: X gets out of her sedan, opens the trunk and pulls out her suitcase before an approaching LEO seizes the suitcase and searches it. a. LEO can’t search w/o a warrant. Suitcase not in the car. B. Search of a Passenger’s Property i. Houghton Rule: LEO may search containers in a carthat clearly belong to a passenger. The searchable container need not belong to the driver only. ii. Wyoming v Houghton a. Facts: LEO stopped car for traffic violation and noticed a syringe in the driver’s pocket. Driver admitted to taking drugs. LEO then searched car for contraband. He found a purse on the back seat belonging to D-passenger. He searched the purse and found drugs. D was arrested and convicted but argued that since the LEO knew the purse didn’t belong to the driver, there was no PC to search. b. Held: SC rejected and said that the LEO had PC to search the car and any container in the car that might contain the object of the search. c. Dissent: Argued that the spatial association b/t passenger and driver is not enough to extend PC to all other passengers. On that logic, if the driver had been a cabbie, LEO could’ve searched the briefcase of the passenger even though the passenger has no connection to the cab driver. -4- Arrests 1. Common law background: A. Permissible warrantless arrests at time of Constitution’s framing: i. Felony committed in LEO’s presence ii. Felony committed w/ PC to believe that the potential arrestee did it iii. Misdemeanor committed in LEO’s presence iv. Breach of the peace B. Subsequent statutes expanded the LEO authority to arrest w/o a warrant. C. But see Atwater: founding era common law not as clear cut on what crimes and misdemeanors allowed for warrantless arrests 2. Current law: A. PC is required for all arrests. B. Arrest warrants tends to turn on where it will take place, ie home vs public place. C. If no AW, arrested party can assert a right to a hearing, usually w/in 48 hours to demand PC 3. Arrest Warrant A. Authorizes the arrest of a particular person but it does not specify the particular places where the arrest can be effectuated. B. LEO armed w/ an AW could only enter the suspect’s home if there is reason to believe that the suspect is actually in the home but this need not be demonstrated to a judge. C. This is unlike a search warrant which requires particularity as to the place to be searchedCt is showing a preference for protecting privacy interests over liberty interests 4. Why should arrests ever be constrained by a warrant requirement? A. We want a judge to decide before deprivation of liberty takes place. LEO have lots of discretion so this is one way of cabining it. B. The liberty deprivation is pretty invasive both physically and nontangibly, ie privacy invasion, reputational costs, humiliation etc. C. Warrants may reduce LEO error rate. D. Warrants may also pacify suspects 5. Public Arrest: No AW Required A. Watson Rule: For public [felony] arrests, LEO need not have an arrest warrant. (Though LEO needs PC to arrest.) Additionally, there is no exclusionary rule or “fruits of the poisonous tree” doctrine for an unlawful arrest—illegal arrest does not preclude a prosecution. B. US v Watson: i. Facts: LEO receive reliable tip that D had stolen credit cards. At arranged meeting, tipster signaled to LEO that D had stolen cards. LEO move in, arrest D but found no cards on him. W/ 21

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6.

7. 8.

9.

D’s consent, LEO then search his car and find stolen cards. D argued that the fruits of the search should be suppressed b/c they were the “product” of an illegal and warrantless arrest. ii. Held: SC rejected. For public arrests, LEO needs PC but need not have an AW. iii. Reasoning: a. SC relied heavily on c/l reasoning but digs through lots of sources to justify. (When text isn’t self-executing, have to look at lots of sources.) b. Cost of requiring LEO to get warrant prior to public arrest outweighed privacy interests, thus warrantless public arrests ok. C. Whether an arrest violates the AW warrant is really a question of what is the harm caused by the lack of a warrant? i. If there is PC, then would’ve been arrested anyway but the delay caused by procuring the warrant might cause loss of evidence or suspect flight. ii. We could say that for a D who was arrested in violation of the 4th, the evidence should be excluded? iii. Damages will have to link the failure to get a warrant w/ the harm. Home Arrest: AW Required A. Payton v NY: since warrants are required to look for property in the home, similarly, AW are necessary to look for people in a home. B. Payton Implications: i. For 4th purposes, an AW founded on PC implicitly carries the limited authority to enter a dwelling in which the suspect lives when there is reason to believe suspect will be there. ii. LEO cannot get an AW, wait until the suspect has left, and then break into home and search it or use the PVD to search, using the AW as authority for the entry. Home Arrest: AW Not Required: when there’s PC of felony + exigent circumstances Associated Search Rules: A. Ordinarily, no search warrant is necessary to enter home to execute AW B. Once in the home, PVD applies C. Steagald Rule for 3rd Party Homes: In the absence of exigency or consent, a search warrant must be obtained to look for a suspect believed to be in the home of a third party, if the suspect is not a resident of the premises—a judge must determine if there is PC to believe that the suspect is located in third party’s home. This rule better protects the privacy interests of the third party. May police arrest for any crime? A. An arrest may be constitutional even if arrest not authorized by local law B. First check non-supreme law, ie local law C. If no use, ask whether the crime would’ve been arrestable w/o a warrant at common law (See #1) D. If still unclear, (ie if it’s an arrest of r a minor misdemeanor), balance individual’s privacy and liberty interests against state’s interest in the crime E. Atwater Rule: a custodial arrest doesn’t violate the 4th even if the underlying offense carries no jail time or any compelling need for detention F. Atwater v Lago Vista-Yes, nothing in the 4th prohibits it. i. Rule: It is not a violation of the 4th for LEO to arrest an individual if he has PC to believe that the person has committed even a very minor criminal offense in his presence. ii. Facts: TX law authorizes cops to arrest violators or issue citations for violations of the seatbelt law. The seatbelt violations are misdemeanors that carry a $50 penalty. Atwater was arrested in lieu of a citation + fine. She brought a Sec 1983 claim arguing that the warrantless arrest was an unreasonable seizure. iii. Held: SC rejected Atwater’s argument—the 4th does not require that custodial arrests be based on offenses that carry jail time or any compelling need for detention. iv. To do so would be very complicated to administer as it would require every cop to know the penalty for every offense. The PC standard, determined on the spot, is easier to administer. Plus it’s hard to know what’s a “minor” crime. v. This is a very pro-rules case.

-5- Searches Incident to Arrest 22

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1. Why have such a rule? A. The arrest is more valuable as it gives another opportunity to search for contraband or weapons automatically i. Arrest + Search of Grab Area (w/o PC) = OK B. To curb the risk of more harm or loss of evidence 2. Spatial limits to further intruding on arrestee: A. Chimel Rule: the following are automatic rights as searches ‘incident to arrest:’ i. Search the arrestee to remove any weapons or to search for evidence to avoid concealment or destruction ii. Search the ‘area w/in his immediate control’ or the grab area from which the arrestee may be able to get a weapon or destroy evidence iii. No reasonable suspicion, PC/SW is necessary to ‘search incident to arrest’ of grab area iv. This doesn’t justify searching through all desk drawers or closed or concealed areas in that room itself B. Chimel v California: A warrantless search of D’s house, including in the bedroom and in dresser drawers is beyond the scope of a ‘search incident to arrest,’ and thus is an unreasonable search. C. The grab area’s parameters are determined on a case by case basis. 3. Going beyond the grab area: A. Arrest of one suspect might give rise to the exigency to search for arrestee’s colleagues who may also destroy evidence or pose a threat. B. Buie Protective Sweeps: i. LEO may conduct a protective sweep, a “quick and limited search..” without PC or RS of closets and other spaces immediately adjoining the place of arrest from which an attack could be launched ii. Beyond the adjacent spaces, LEO needs articulable suspicion that co-conspirators are present in order to do a protective search ~Terry iii. PVD in effect for both 4. Hypos: A. Hypo: Suppose LEO lacks PC to believe evidence is in a drawer next to D. Can they search incident to arrest? i. SC making some categorical rule about area w/in reach; nowhere does SC require PC to search that area. ii. Grabable area (w/o PC) + arrest = ok B. Suppose cop has PC to believe that weapon is in next room? i. Can’t search b/c not in grabable area. ii. Even w/ PC, have to find some other exception or go get a warrant C. Suppose LEO has articulable suspicion that a person is upstairs? (Buie Protective Sweep) i. Yes LEO can engage in protective sweep but can’t go digging 5. SITA of the Person A. US v Robinson: Even when there’s no PC to search, no concerns of self-defense or risk of evidence destruction, a valid arrest always supplies LEO w/ the automatic power to neutralize an arrestee whether or not suck risks exist on the facts. (Held: search of cig pocket that contained drugs, as incident to a valid traffic violation arrest did not violate the 4th.) SITA is not limited in scope, thus containers found on the person can be searched by SITA. SC wanted an easy rule for LEO to follow. B. Terry Stops are diff: these require reasonable suspicion of bodily harm but b/c arrests are a more serious invasion that generally creates greater risks, the Robinson automatic rule to search the person incident to arrest is necessary. 6. SITA as Applied to Cars A. NY v Belton i. Belton SITA Rule: when LEO has made a lawful custodial arrest of the occupant of a car, he may also search the passenger compartmentof the car since this is always w/in the grab area. (This rule holds true even when the occupant is handcuffed and in the police car—Thornton.) But the Belton rule does not give LEO the power to search the trunk unless on the facts of a specific case, the trunk is w/in the grab area. 23

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ii. This is diff from the car exception to the warrant requirement. There, LEO can search the entire car, including the trunk, w/o a warrant as long as there’s PC to believe there’s evidence of crime. iii. In contrast, SITA for cars allows an automatic intrusion into the grab area w/o PC or a warrant as long as the arrest was made validly. This includes the right to search any containers found w/in the car. B. Limits: i. Time and Space: Thornton v US: a. Facts: LEO sees D driving erratically; runs a check on the tags and learns that they don’t match the vehicle. LEO sees D pull over and get out. LEO approaches D and tells him about the tags. D is acting oddly so LEO asks if he has any drugs/weapons on him, but D says no. D then consents to a body search where LEO finds drugs. LEO arrests D, places him in the squad car and then goes to search the car and finds a gun. D is convicted of drug possession and firearm possession in furtherance of a drug crime. b. Plurality: The fact of the arrest triggers the authority to search even though by the time of the search, D is safely locked up in the squad car. c. Reasoning: 1) Rule: Beltondoes not require the LEO to initiate contact while suspect is in the car. However, an arrestee’s status as a car occupant or “recent occupant” may depend on his spatial and temporal relationship to the car. 2) Rule: The Beltongeneralization is based on the need for a clean rule for cops. Once an officer determines that there is PC to make an arrest, it is reasonable to allow cops to ensure their safety and to preserve evidence by searching the entire passenger compartment, even when, in cases like this, it’s unlikely that the arrestee could’ve gotten at the weapon. 3) Concurrence justifies this on the basis that gathering evidence as related to the crime is a valid justification d. Thornton rule is unclear for non-car situations. ii. Containers in the passenger compartment: can be searched w/o a warrant pursuant to SITABelton iii. Knowles No Arrest, No Search Rule: LEO, who has the option of arresting or issuing a citation for a traffic stop cannot issue a citation and then “search incident to that citation.” LEO must arrest first, then search. But LEO could arrest first, then search, and then let suspect go—carrying through w/ the arrest is discretionary. C. Special Case: CO v Bertine and Inventory of Car’s Contents i. Bertine Rule: if cars are lawfully held in police custody, the police may inventory the contents of the car pursuant to established standardized procedures; these are administrative searches and are *not* searches for law enforcement or evidentiary purposes, thus no warrant or PC is required ii. Purpose of an administrative search like this: a. Owner of car needs protection against threat of theft or damage to the car and LEO needs protection against claims of lost or stolen property b. LEO and public need protection from the potential danger that the vehicle or its contents might cause iii. As long as the search is conducted according to established and standardized procedures/regs, if LEO come across evidence, it can be used against a suspect. If the search was not conducted according to established procedures, it will most likely be excluded. (Thus a pretextual search where LEO’s main motive is to look for evidence is probably still ok as long as LEO strictly adheres to the admin search regulations.) -6- Consent 1. A search based on consent is reasonable under the 4th, thus LEO need not have a warrant or PC to search. 2. An OH study shows that 91% of stopped motorists consented to a search. Why are consent rates so high? A. If don’t consent, situation might get worse. B. For those w/ illegal stuff: a) might say yes and exclude later or b) comply out of fear that if you say no and they search anyway, they’ll search more thoroughly C. It’s rational to say “yes.” 24

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D. It might be that the rates are affected by who gets stopped; it’s possible that the people stopped are a subset of the people who would say “yes” 3. Consent must be voluntary. A. Schneckloth v Bustamonte Rule: whether consent to search is voluntary or is instead based on express/implied coercion or duress is a totality of the circumstances standard. This takes into account the characteristics of the accused and the details of the interrogation. (This is unlike issues of waiver which first require knowledge by D of the right to and consequences of waiver.) While knowledge of the right to refuse consent is one factor, the govt need not establish such knowledge as the sine qua non of an effective consent. i. Facts: LEO stopped car due to traffic violation. Of 6 people in car, only 1 had ID. LEO asked that one if he could search his car and the guy said “sure go ahead.” That guy was helpful and even opened the trunk/glove compartment for the LEO. LEO found stolen checks under the seat. D was convicted and on appeal argued that b/c he didn’t know that he had the right to refuse consent, the consent was invalid. ii. Held: LEO need not inform suspect of the right to refuse and the suspect need not know that he has the right to refuse in order to still give effective consent. iii. Reasoning: a. “Voluntariness” is a question of whether there was a meaningful choice or if there was express/implied threat of force. b. Interestingly, here LEO asked if there were any drugs in the trunk and then D went ahead and voluntarily opened the trunk. This seems to be implied consent but then again it seems like the LEO’s q is deceptive. B. Factors that determine ‘voluntariness:’ i. Voluntariness of suspect’s custodial status ii. Coercive police procedures iii. Extent and level of suspect’s cooperation iv. Suspect’s intelligence and education v. Suspect’s belief that no incriminating evidence will be found vi. Location of stop vii. Time of day etc. C. Jimeno Limits on Scope of Consent: since suspect can limit the scope of the search, the q is whether a reasonable LEO would believe that D consented to the search of the area that officer searched. i. D consented to a *general* search of the car for narcotics. LEO found a paper bag on car floor and searched it. ii. Held: Since LEO told the D that he was searching for drugs and D consented w/o expressly limiting the scope of the search, the search of the bag was ok. A reasonable person would be expected to know that drugs could be found in such a bag. D. Robinette Consent After Completion of a Stop: Consent is voluntary even if given after the completion of a traffic stop and LEO has given license/registration back to the suspect. LEO need not always inform detainees that they are free to go before a consent search may be deemed voluntary. 4. 3rd Party Consent A. IL v Rodriguez-perceived co-occupant authority i. Facts: D’s woman friend, a third party, gave consent to LEO to search D’s apartment. Unbeknownst to the LEO’s, the woman friend had moved out a month earlier but had retained a key w/o permission. ii. Held: Even though the friend did not have actual authority to authorize the search since she did not have joint control or access after moving out, the LEO’s reasonable belief in the friend’s authority to consent would validate the entry. B. Actual co-occupant authority i. GA v Randolph: if both people, like a husband and wife, have the authority to consent, and one gives consent while the other one refuses consent, the physically present co-occupant’s denial of consentwins. (SC tries to hitch this rule on ideas of normal social interaction—an unwelcome response from one co-occupant usually tells the person that he’s unwelcome.) 25

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ii. Matlock Rule: the consent of one who has common authority over the premises is valid as against the absent nonconsenting person w/ whom that authority is shared. 3. REASONABLENESS ALTERNATIVES Terry Stops 1. Rules vs Standards       



Rules Are based, and therefore limited, to the information that the rulemaker possessed when rule enacted Simplicity, clarity and forewarning offered before conduct occurs Ease of compliance by actors Ease of application by cts Stable over time Application of rules conserves judicial resources Allows for equal treatment Tend to be anti-govt applications in 4th A context

     



Standards Flexible; allow decisionmaker to incorporate diff info into his decision calculus, often w/o having to change the rule Uses more judicial resources Case-by-case analysis Maybe cases won’t be treated in the same way Are not stable—many standards may crystallize into rules But in a rapidly changing situations, flexibility of standards may offer more flexibility Tend to be pro-govt applications in 4th A context

2. Are stds excessively pro-govt in the 4th A context? A. 4th A reasonableness inquiry lets cts take into account factors not formally taken into account in traditional warrant/PC formula such as the seriousness of the crime, extent of the govt’s privacy invasion; but the reasonableness standard doesn’t necessarily mean that there’s less stringent limits on police searches and seizures i. Winston v Lee:shopkeeper was wounded during an armed robbery but he managed to wound the robber as well. D, who had a gunshot wound, was admitted to a local hospital. LEO were denied a warrant to “search” for the bullet in D’s body (via surgery and general anesthesia) even though they argued that they needed to compare the bullet lodged in D’s body w/ the type of bullets used by the shopkeeper. The court determined that a “body search” like that would be unreasonable. B. Theory: judges have cognitive biases or pro-govt preferences C. There’s a worry that appellate cts will defer to trial cts and the trial cts will defer to the police. If there are no fairly clear rules telling LEO what they may and may not do, then cts are seldom going to say that what the LEO did was unreasonable. D. But the truth is, judicial behavior is influenced by many factors. E. Administrative searches: During early 4thAmendment jurisprudence, the emphasis on warrants and PC would have precluded suspicionless govt inspections for admin purposes, such as housing or fire code violations. But under Camara v Municipal Court and See v Seattle, SC held that unlike searches pursuant to a criminal investigation, inspection programs aimed at securing city-wide compliance w/ minimal physical standards for property don’t violate the 4thand are not unreasonable searches. The primary govt interest is to prevent even the unintentional development of conditions hazardous to public health and safety. When the need for the inspection is weighed against the minimal intrusion, the need outweighs. 3. Terry Stop and Frisk Rule A. If LEO has reasonable suspicion of illegal activity i. Reasonable suspicion: reasonable inferences drawn from specific and articulable facts ii. Probable Cause is not the std B. Then he may stop the suspect in an investigative stop C. If LEO has reason to believe that he’s dealing w/ an armed and dangerous individual, he may pat down/frisk the outer garments for weapons i. Frisk must be reasonably necessary for safety ii. Std: would a reasonably prudent man think that this his/other people’s safety is at risk? iii. Such a search is NOT justified by any reason to protect evidence, but rather, only to justify the safety of the officer/bystanders 4. Terry v Ohio 26

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A. Facts: LEO sees D’s walking back and forth in front of a store; to the beat cop; to the LEO, an experienced beat cop, it looks like they were casing the place in preparation for a robbery. LEO approaches them, id’s himself as a cop and asks for ID. The men mumble something and then LEO, his suspicions aroused, spins Terry around and then patted down the outside of his clothing. He found a pistol. Terry was convicted of carrying a concealed weapon. He challenged the search and seizure of the weapon. B. Held: While the LEO had no PC to seize Terry and search for weapons, the limited search and seizure was justified as an investigative stop. C. Reasoning: i. SC says nothing about the initial stopping and questioning of Terry; can’t tell if his initial q’s are a seizure. Bostick etc happens later thus at this stage, no 4th constraint. ii. The stopping and spinning around is not an arrest but rather, it’s an investigative stop made w/ reasonable suspicion; SC very careful to say that the std is not PC iii. Frisk: pat down of outer clothing to find weapons and ensure safety only iv. Camara v Municipal Court: there is no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails v. Govt interest: effective crime prevention and detection 5. Refinement of the Terry Rule A. “Stops” i. Dunaway v NY:D, a murder suspect, was taken into custody w/o PC and although he was not told that he was under arrest, he would’ve been physically restrained had he tried to escape. SC held that the statements he had made while in custody were the fruits of an illegal arrest and that this was not a Terry stop. B. Plain Feel Doctrine: if LEO, in the course of a legit stop and frisk, has PC to believe that he’s feeling contraband on the person, LEO can seize it w/o a warrant i. Minnesota v Dickerson:In the course of a stop and frisk, LEO concludes that the object that he feels is not a baggie. LEO then squeezed and manipulated the baggie to ascertain its character. The tactile manipulation provided LEO w/ the PC to believe that the item was a lump of crack. SC held that the tactile manipulation exceeded the scope of a legit frisk for weapons and thus the seizure was illegal. C. Stop Duration i. Sharpe Rule:reasonable time for LEO to confirm or deny his suspicion of illegal activity or potentially illegal activity. Cts will look further at whether LEOs are acting in a swiftly developing situation. ii. Prof: time reasonably required to effectuate law enforcement’s purpose a. Florida v Royer: LEO stopped a passenger at an airport on suspicion that he was carrying drugs. LEO took 15 mins to search his luggage and found drugs. Plurality held that the removal of Royer to an interrogation room + length of time was far more intrusive than an investigative stop could be—especially considering that LEO could’ve searched on the concourse or used drug sniffing dogs to conduct the search expeditiously. b. US v Place:LEO had articulable suspicion that a passenger who had just deplaned had drugs on him. LEO seized his suitcase and took it to another airport where a drug sniffing dog reacted positively to one suitcase which turned out to contain drugs. Search took 90 mins. SC held that seizing the suitcase for 90 mins w/o PC was unreasonable. Terry only permitted LEO to detain the luggage briefly to investigate the circumstances that aroused his suspicion provided that the investigative stop is properly limited in scope. D. Special car rules i. Mimms Rule: LEO can order drivers to step out of the car briefly—this is a rule—after you’ve been stopped, to ask you to get out of your car is only a minor additional intrusion ii. MD v Wilson: If driver has been stopped lawfully, it’s no more an intrusion to ask the passengers to exit the car as well since they too have been stopped, practically speaking. iii. MI v Long: If suspect is outside of the car, Terry permits LEOs to search the passenger compartment of the car for weapons, but it’s limited to those areas in which a weapon may be placed or hidden. 27

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What is reasonable suspicion? 1. Evasion in a high crime area A. Wardlow Rule: unprovoked suspect flight in a high crime area constitutes reasonable suspicion B. Rule: location or suspect’s presence in a certain area ≠ reasonable suspicion although location can be one of several factors C. Rule: flight is not a per se rule of reasonable suspicion D. IL v Wardlow i. Facts: Wardlow ran away upon seeing a caravan of police cars approaching in an area known for drug trafficking. Though at trial, LEO’s recollection of events seemed kind of sketchy. LEO ran after him and stopped him. LEO frisked him for weapons and found a gun on him. Wardlow was arrested. ii. Held: the location + evasion = justified Terry stop. iii. Given that it’s really hard to determine the meaning of the flight, maybe judges are passing off their judgments as reasoned opinions. It’s also possible that a judge’s ability to read the info is different from and less perceptive as compared to the beat officer. Thus, in many cases like this, the judge is going to defer and follow LEO inferences. If a judge doesn’t know what to think, he has someone who does—the LEO. iv. Dissent: Stevens-there are lots of innocent explanations for flight in a high crime area: frightened, scared of police abuse (which is a legit concern for many of these areas) etc. 2. Use of Informants A. LEO’s assessment of reasonable suspicion can depend on informants B. White Rule: similar to the Gates analysis on PC, informants’ info, when looked at under the totality of the circumstances test, can be used to support the reasonable suspicion requirement; an informant’s basis of knowledge + veracity are relevant factors in the determination but are to be applied more permissively since PC is a more rigorous standard of proof C. JL Rule: LEO are not permitted to stop and frisk based on an anonymous tip w/o the standard indicia of reliability D. Florida v JL i. Facts: LEO received an anonymous tip that a young black male in plaid clothes at a particular bus stop was carrying a gun. LEO go to the bus stop and see 3 black males, one wearing a plaid shirt. W/o any additional info, LEO stopped and frisked the one w/ the plaid shirt and seized a firearm from his pocket. At trial, govt urged the SC to adopt a “firearm exception” to the rule that an anonymous tip must be accompanied by specific indicia of reliability to be relied upon. ii. Held: SC rejected govt’s argument and found that the anonymous tip here lacked the indicia of reliability, as required by White, thus the search and seizure were illegal. iii. Reasoning: a. There was no prediction of future activity or info that would show that the tipster had knowledge of concealed criminal activity. b. Rule: there is no firearm exception whereby threat of firearm + no indicia of reliability could be enough to justify reasonable suspicion c. Rule: SC left open the possibility that where the potential danger is so great, ie bombs etc, then the requisite showing of reliability might be relaxed Profiling and Discretion 1. How do we define profiling? A. Targeting a class characteristic for the purpose of subordination B. Using suspect descriptions from eyewitnesses; many people say that is not profiling b/c that’s just investigation of a crime. Is that different from C.? C. Using observable characteristics as proxies? D. Profiling can happen w/ or w/o race. It need not have anything to do w/ race. 2. Comparing officer discretion A. Using observable characteristics? i. Use of profiles vs generation of profiles 28

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3.

4. 5.

6.

7.

ii. Generation might be created b/c of discretion iii. But then the generated profile might constrain discretion; if you ignore it, then you’re just not using the profile B. Normative perspectives i. Profiling “doesn’t work”—they will be horribly inaccurate or perhaps backfire—will they be stable in a dynamic atmosphere when those subject to scrutiny react? ii. Profiled people are especially harmed iii. Harms override advantages: often or sometimes? iv. Profiling is inevitable C. How do you minimize bad profiling i. Someone should prohibit bad formal policies (but formal policies might be hard to find in US) ii. Even w/ no bad formal policies, you might get bad policies, so someone should scrutinize LEO actions. See Whren. How do you eliminate the problems? A. Cts? Cts are somewhat reluctant to police the police. B. Politics or some other agent could prohibit bad formal policies. Though that could lead to bad informal policies. C. Scrutinize officer motive? Though Whren doesn’t want to look at subjective motives. D. Change personnel—hire officers/deploy officers who are not going to make those kinds of profiles. E. Change substantive criminal law. Ie Morales—knocked down the law for being vague. Emphasis is on officer discretion. Too much is a bad thing and tracks concerns w/ bad profiling. The inherent limit is that perfectly clear and broad, it still lead to lots of discretion in enforcement thus the voidfor-vagueness idea won’t work. F. Probs like poverty, racism etc can’t be eradicated by the law G. If we’re worried about race-based rules, use equal protection clause for the remedy Whren Rule: LEO’s subjective motivation for the stop (traffic stop) doesn’t matter as long as stop is otherwise lawful Whren v US A. Facts: DC police had an internal policy to allow plainclothes officers to slide on issuing traffic citations unless it’s an emergency. Plainclothes LEO pulled over Whren anyway for a traffic violation. Whren argued that the stop was a pretext to investigate a more serious crime since he and the other passenger were black. B. Held: LEO may stop any individual if he has PC to believe that a traffic violation has been committed, regardless of the LEO’s subjective motivations for the stop. Whren and the Pretext Problem A. Uniformed LEO i. It’s possible that if LEO are clearly marked, then people will see them and are more likely to follow the law b/c of increased risks of getting caught ii. There could be a safety issue—if LEO are clearly in uniform, then people will see them and are less likely to break the law or engage in dangerous behavior B. Plainclothes LEO i. If not in uniform, then maybe they are out there to go after more serious crimes ii. Have to exercise more discretion C. This shows that cts are not the only source of constraints on LEO’s. They have internal and external constraints. As one of the only 24/7 service providers, they interact w/ the public continuously and need to be perceived as effective and authoritative. Can we make pretext discoverable and operational to courts? A. Defendant in Whren offers the following test: i. Take the reason that the officer made the stop ii. And then double check for pretext by asking if a reasonable person would’ve stopped the motorist for the same reason? B. The prob is not the impracticality of finding a motive but rather, it’s very messy for cts to get involved in and then decide what’s a legitimate motive and what isn’t C. Possible solutions to pretext: 29

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i.

Use equal protection clause analysis; then P’s will have to prove that they are receiving disproportionate impx and that there’s a racial animus behind the policy ii. Could hire more people of the target group’s ethnicity and then perhaps they won’t be as frequent a target 8. Chicago v Morales A. Facts: Chicago passed the gang loitering act which allowed LEO to order dispersal. B. Held: law is void for vagueness. 9. Morales Reasoning and Political Power A. Since the law applies to gang activity, it’s going to be applied selectively in the city in particular highcrime areas—largely black and Hispanic. B. Political support? i. It’s quite possible that a law like this will get political support by voters who do not live in the high-crime areas where the law will be most in effect. ii. It’s possible that the law would be supported by the black/Hispanic residents of the areas where the law would be most enforced but it’s not clear that these are people who vote at all. iii. So it may be that these laws were passed by the politically powerful at the cost of the politically weak. iv. Geographic communities were, at best, divided on the utility of the gang loitering laws. Special Needs 1. Special needs doctrine: A. Govt has a special need for weaker 4thamendment constraints, beyond the normal need for effective law enforcement. Govt practices that are special needs nonetheless satisfy a reasonableness balancing test. B. LEO, w/ permission of courts, can relax the PC, individualized suspicion or warrant requirement— look to specific caselaw to know which requirements are relaxed C. Reasonableness balancing test: i. Strength of the ii. govt interest iii. Degree to which the practice advances that interest iv. Nature of the liberty/privacy intrusion 2. General pattern from the cases: A. Special kind of law enforcement need B. But discretion is cabined in some way 3. Hypo: NYC Subway checkpoints A. Are supposed to appear random to the passengers—ahead of time, subway systematically chooses a stop and then stops every nth passenger and informs the passenger that if they want to ride the subway, they have to submit to having their bag searched. LEO are only searching for explosives so they don’t check small bags, purses or wallets. B. Of course, if a passenger wants to evade this requirement, they can just board at another stop. C. Is this permissible? 4. Summary of the Rules: A. Edmond: the usual particularity requirement cannot be relaxed when the police seek to employ a checkpoint for the ordinary purpose of law enforcement, drug interdiction B. Sitz: upheld a MI highway sobriety checkpoint program—involved a brief, suspicionless stop of motorists so that LEO could detect signs of intoxication. The gravity of the drunk driving program and the magnitude of the state’s interest in getting drunk drivers off the road was key in the balancing test. C. Martinez-Fuerte balancing upheld immigration checkpoints 100 miles north of the Mexican border: i. Formidable law enforcement probs posed by the northbound tide of illegals ii. Difficulty in containing illegal immigration at the border iii. Impracticality of the particularized study of a given car to discern whether it had illegals or not iv. Relatively modest degree of intrusion entailed by the stops D. Montoya: 30

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i.

A momentary detention of a citizen by a border patrol official, so that the official can ask q’s or look at ID is permissible w/o individualized suspicion ii. If the traveler is detained for an extended period of time, then the seizure will require individualized suspicion even if a search is never conducted. E. IL v Lidster: checkpoint to ask passing motorists q’s about a recent hit-and-run doesn’t violate the 4th as it’s less invasive and terrifying to motorists than when they themselves are the target of an investigation F. Administrative Searches i. Camara/See ai. Inspection programs aimed at city-wide compliance w/ admin codes like minimal physical stds for property do not violate the 4thand are not unreasonable searches. The primary govt interest is to promote public health and safety by detecting even unintentional development of hazardous conditions and is not about a general criminal investigation. 5. Indianapolis v Edmond A. Facts: City imposed a checkpoint on city roads to interdict unlawful drugs. At the stop, LEO informs the driver that this is an drug interdiction, asks for license/registration, looks for impairment, conducts an open-view examination of the inside of the vehicle from the outside and a drug dog sniffs the exterior. B. Held: The checkpoint violates the 4th. C. Reasoning: i. SC has never allowed checkpoints based on some general interest in crime control. All of the previous checkpoints that were ok’ed had to do w/ highway safety. Here, the city is just looking for drugs. ii. SC says that unlike the sobriety checkpoints that were permissible in Sitz, here there is no immediate and vehicle-based threat to life or limb. 6. IL v Lidster A. Facts: Police set up a checkpoint a week after a hit-and-run had occurred. They briefly stopped drivers and asked if they had seen anything happen a week earlier; also handed out flyers asking for help and details about the incident. During D’s stop, LEO smelled alcohol on D’s breath and asked D to step out and take a sobriety test. After failing the test, LEO arrested D for drunk driving. D challenged the arrest arguing that the checkpoint was an unconstitutional seizure. B. Held: An LEO checkpoint designed to elicit info about an earlier hit-and-run does not violate the 4th. C. Reasoning: i. These are “information stops” and only interfere minimally w/ liberty interests. Motorists are less likely to be fearful or terrified and are more likely to be cooperative and react positively to aid law enforcement. ii. The law enforcement’s need to investigate the hit-and-run is genuine and the importance of seeking the public’s cooperation is clear, especially in light of the fact that LEO can ask pedestrians the same kinds of questions. Use of Force 1. At c/l, the use of deadly force against a fleeing felon was permissible and is no doubt considered a “seizure.” 2. The manner in which the stop or seizure is made matters and must be done reasonably under the 4th. The use of deadly force as a categorical rule against all fleeing felons is unconstitutional. ~Garner 3. Garner/Graham Rule: use 4th Amendment reasonableness to determine whether a certain level of force or method used to effectuate a seizure is permissible 4. Garner Deadly Force Rule: deadly force may be used to seize a fleeing felon when 1) it is necessary to prevent escape AND 2) LEO has PC to believe that the suspect poses a significant threat of death or physical injury to the officer or to others 5. TN v Garner A. Facts: LEO responding to a call about a burglar see the suspect trying to get over a fence. LEO saw no weapon, called out “halt, police” and then fearing elusion, LEO shot the suspect who later died. 31

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B. Held: The use of deadly force here to apprehend an apparently unarmed suspect who posed no immediate physical threat was an unconstitutional seizure. C. Reasoning: i. 4th Amendment reasonableness takes into account how a seizure is effectuated. ii. LEO may not seize an unarmed and not dangerous suspect by shooting him dead. iii. Use of deadly force is permissible only if there’s PC of injury. A warning first is also a good idea. iv. Police departments and fed agencies like the FBI are increasingly moving away from the c/l rule and requiring the use of deadly force only in certain cases where there’s danger to life or limb. a. Is a snapshot in time but tells you that the c/l trend can be bucked without sacrificing law enforcement goals b/c it is feasible. b. Is a way to crush outlier districts or jurisdictions who are experimenting with diff law enforcement techniques or policies. c. Prof: this is a rough and ready proxy for feasibility when the alternative is to have a judge or politician decide. 6. Graham Rule: Measure the use of force or method to effectuate a seizure by its reasonableness under the totality of the circumstances, as judged from the perspective of a reasonable officer at the scene, rather than w/ hindsight vision: A. Facts and circumstances of each case B. Severity of the crime at issue C. Whether the suspect poses an immediate threat D. Whether suspect is actively resisting arrest or attempting to escape 7. Graham v Connor A. Facts: LEO see Graham go into a store and come out in a hurry. Thinking that he may have robbed the store, LEO stop Graham and make him get out of the car. He tells them that he’s feeling the onset of an insulin attack and wanted OJ. Also tells LEO to check his wallet for his diabetic card. LEO ignore this and rough him up while they wait to find out if anything actually happened at the store. Graham suffered some major injuries. B. Held: The 4thAmendment’s reasonableness inquiry governs the manner in which all seizures take place. Case is remanded to determine if LEO’s conduct was reasonable. C. Reasoning: i. Rule: determining whether the force used to effect a particular seizure is “reasonable” under the 4th require a balancing of “the nature and quality of the intrusion on the individual’s 4th A interests.” ii. The right to make an investigatory stop or arrest necessarily carries the right to use some degree of physical coercion or threat to effect it. iii. Rule: Looking at it from the perspective of a reasonable officer at the scene means that the reasonableness decision must allow for circumstances that are tense, uncertain and rapidly evolving esp since LEO often have to make split-second decisions. iv. Rule: the test is whether the LEO acted objectively reasonable, w/o regard to their underlying motivation or intent 8. Scott v Harris A. Facts: Suspect was stopped for speeding but instead lead cops through a high speed chase. LEO rammed suspect’s car from behind. Suspect landed in a ditch and was paralyzed. His family sued arguing that this was an unreasonable use of deadly force. B. Held: SC analyzed this using the multi-factor Garner test for reasonablenessand determined that even though the use of force resulted in harm to the suspect, the use of force here was reasonable. SC refused to term this use of force as “deadly force.” C. Reasoning: i. The act of chasing the suspect is what creates the danger. But to term this “deadly force” almost assuredly would have meant that the cop would have lost. SC is worried that a decision against the cop would result in perverse incentivizes—motorists could engage in a high speed chase simply to get away b/c cops would back off from chase and “creating” the danger. ii. Garner may get loosened up in the future b/c SC refused to call this “deadly force.” (D) LIMITS ON THE EXCLUSIONARY REMEDY 32

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Good Faith 1. The 4thAmendment doesn’t explicitly prescribe the exclusionary rule. The assumption is that since the 4thprohibits unreasonable searches and seizures, if that happens, there should be some remedy. The division is over what should the proper remedy be. A. Was there a 4th Amendment violation? B. If so, what should the proper remedy be? 2. Idea: the use of dirty evidence taints the judicial proceedings and the court and judge then become a party to the constitutional harm. But the Leon court was not worried about this aspect—the violation is complete at the time of the unreasonable search or seizure, thus the goal has to be to deter violationsfrom occurring at all. The question is: do the benefits of the exclusionary rule thus outweigh the costs? 3. Leon Good Faith Exception: If LEO, acting in good faith, procures an objectively reasonable search warrant from a judge and search, and then later, PC for the search warrant is found not to have existed (ie judge reached the wrong PC conclusion), the LEO’s good faith reliance on the warrant means that the evidence should not be excluded. But if reasonable people would agree that there is no PC to justify the SW, then the officer will be in error for relying on that warrant. 4. Incentives A. LEO: the exclusionary rule acts to deter LEO from searching w/o PC (assuming that LEO care about conviction rates and trials) B. Judges: will not be deterred by the exclusionary rule since they have no personal stake in trial outcomes. They will be deterred by “professional incentives” ie not being overruled or discussed unfavorably in judicial opinions. 5. Hypo: Should the Leon good faith exception exist for invasions that w/ neither a warrant nor PC? A. If we want to incentivize LEO to get warrants, then we shouldn’t allow GF for cases where LEO thought they had objective reasonable grounds to enter B. If LEO have to go through the paperwork and get the warrant, then they have to come up with the story first, if GF extended to warrantless searches that later turned out to lack PC, then LEO might just backfill their story to get them all the way up to PC 6. Herring v US: isolated and attenuated negligence in not updating a police database for AW’s so Herring appeared to have an outstanding warrant for his arrest. But SC said that this was not grounds to exclude evidence from a search incident to arrest. Herring wanted the evidence of contraband taken from the SITA excluded. SC said no even though LEOwas responsible for this arrest database, it’s attenuated enough from the conduct of the arresting officer so the minor advance is that now, you’ve got one set of officers objectively reasonably relying on another set of officers. And once again, LEO did try to get a warrant—they were trying to operate w/in the warrant system. This case is seen as chipping away at the ER and Stevens cites Cardozo’s quote that evidence of illegality is tossed out b/c of the constable’s blunder. 7. Not all states follow the good faith exception, thus in a suppression motion, it’s not a defense for LEO to argue good faith and keep the evidence in. Standing to Argue for Exclusionary Rule 1. History of the use of standing: A. Old approach: any “target” of LEO has “standing”  difficult to determine who the LEO was subjectively targeting B. Carter/Rakas Rule: the person seeking suppression of the evidence must’ve been searched or seized; that goes back to the Katz issue of whether there was a reasonable expectation of privacy; if not, not a 4th A “search” 2. Carter “Guests”-some social component, more than merely conducting a txn; previous contacts 3. Olson Rule: some social guests might have a legit expectation of privacy, ie social guests 4. Jones Rule: merely having consent to be in someone’s home ≠ legit expectation of privacy 5. MN v Carter A. Facts: LEO observes through garden apartment window blind’s gap what appears to be 2 men bagging drugs. When the two men walk out to their car, LEO stopped them and searched their car 33

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and found drugs. LEO also arrest the female tenant of the apt. Pursuant to a SW, LEO search the apt and find drugs. LEO later learn that the 2 men, who were here for the first time, used the apt to bag drugs in exchange for giving 1/8 an ounce of cocaine to the female tenant. She is not a party to this appeal. 2 men moved to suppress the evidence from the apt arguing that the peering through the window was an unreasonable search. B. Held: The two men had no reasonable expectation to privacy, were not social guests but rather, just there for the first time to conduct business. Thus, the first prong of Katz isn’t satisfied so you don’t get to the question of whether this was even a search or not—it’s not. C. Reasoning: i. MN v Olson: in some circumstances, a person may have a legit expectation of privacy in someone else’s home, ie overnight guests ii. Rakas v IL: rejected the idea of using standing to determine if 4th’s protections apply; the test is whether the person claiming protection had a reasonable expectation of privacy in the invaded place iii. Jones v US: a guest in a home may claim 4th protections but one who is merely present w/ the consent of the owner may not iv. Key: Kennedy’s concurrence: social guests may have a right to privacy but the 2 men here weren’t social guests; they were here to conduct a txn and their only connection to the owner was this biz txn D. Ginsburg dissent: the homeowner has a right to share her home and associations w/ whomever she chooses, regardless of the length or nature of the visit. The majority runs the risk of LEO using temporary visitors in a house to find incriminating evidence. Fruits of the Poisonous Tree to Argue Exclusion 1. In many cases, a D will challenge the evidence derived from an initial illegal search. 2. Standing must be met: D can successfully challenge tainted derivative evidence only if he has standing to object to the original but illegal search. 3. FotPT: but in some cases, the link b/t the initial illegal search and the evidence ultimately obtained is so attenuated that the evidence can no longer be considered “dirty.” W/ attenuation, the deterrent effect of the exclusionary rule is reduced so much so that the cost of excluding reliable evidence outweighs the minimal benefit of deterrence. A. Only suppress evidence obtained as a result of a 4th violation. B. Suppressed evidence requires but-for causation. But for the violation, this evidence would not have been found. C. Proximate cause: the violation is the PC of finding the evidence that should be suppressed. 4. LEO’s arguments: A. Evidence would’ve been discovered inevitably B. Some other source would have lead to the evidence C. Attenuation (Wong Sun) 5. Wong Sun v US A. Facts: i. Without PC, LEO break into Toy’s apt and arrest him in bedroom but don’t find any drugs. Toy makes a statement implicating Yee in sale of drugs. [Illegal] ii. LEO go to Yee, who immediately surrenders and hands over drugs. Yee makes a statement implicating Toy and Wong Sun; says they sold him the drugs. [Legal] iii. LEO then illegally arrests Wong Sun. [Illegal] iv. Wong Sun and Toywere arraigned and released pending trial. Toy gave an unsigned confession. v. Several days later, Wong Sun came back to the police station, was Mirandized, and gave an unsigned confession. B. Holding: i. Toy: a. Toy’s statement in the bedroom: is excluded b/c entry/search into home was illegal b. Yee’s drugs: Toy’s statement are the proximate cause of finding drugs, so the drugs are the illegal fruits and are excluded; drugs can’t be used against Toy 34

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c. Toy’s unsigned confession: ? d. Criminal confessions and admissions of guilt require corroboration. WS’ statement did not mention Toy so it looks like the confession can’t get in. ii. Wong Sun: a. The drugs surrendered by Yee can be used against Wong Sun; WS has no standing to object b/c he has no claim of privacy to Toy’s apt (this is Carter) that led to Yee’s drugs b. WS’ confession cannot be excluded; b/c WS voluntarily came back to the police station to give a statement and was properly warned about his right to silence/counsel, the confession was not “tainted” by the earlier illegal search of Toy’s apt. c. Since crim confessions require corroboration and Toy’s statement doesn’t implicate WS, the confession isn’t really useful. Thus the only source of corroboration is the drugs. d. Since it’s not clear that the drugs could be enough corroboration, Sun gets a new trial. Impeachment The use of evidence taken in violation of the 4th can still be used to impeach the suspect at trial.

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PART II: POLICE INTERROGATION (A) Miranda and Its Alternatives 1- The Path to Miranda 1. Relevant constitutional text A. 5th: due process; nor shall anyone be compelled to be a witness against himself –this prohibits the govt from compelling individuals to provide incriminating testimony B. 6th: in all crim prosecutions, the accused has the right to be informed of the nature and causes of the accusation and have the assistance of counsel for his defense 2. Concerns about interrogations and confessions: D. Accuracy E. Methods, ie police brutality (that affect accuracy) F. Democratic values, ie “white mob is waiting for you” G. Compelled confessions as a violation of autonomy or free will H. Fair play: certain police tactics are unfair even if they result in accurate confessions I. Meaningful choice 3. Doctrinal History: A. Early cases focused on compelled testimony at trial. Later, inquiry focused on pre-trial confessions B. Bram v US: early test for voluntariness; focused on the setting and LEO’s promise that things would go better if suspect cooperated (still good law) C. Watts v US: (1949)-Series of interrogations over 5 days resulting in a confession; SC ruled that the confession wasn’t truly voluntary if it’s the product of sustained pressure by the police and does not result from free choice—the “confession” here was coerced; to use it in court would offend procedural stds of due process (still good law) D. The court reversed convictions based on involuntary confessions w/ growing frequency in the 1950’s and 1960’s. E. But the fact-finding inquiry of whether a confession was truly voluntary or not was difficult. SC was distrustful and skeptical that state courts would get it right. By the early 1960’s, how to determine whether a confession was voluntary was very unclear. 4. Miranda Rule A. Warning Rules: Absolute prerequisites to custodial interrogation i. Right to remain silent ii. Anything suspect says can and will be used against him in court iii. Right to consult a lawyer iv. If indigent, a lawyer will be appointed B. Waiver Std: If LEO obtain a confession through custodial interrogation, state bears the “heavy burden” of proving that a suspect voluntarily, knowingly and intelligently waived his right to silence and to counsel. C. Suspect can invoke these rights at any time; if LEO nonetheless presses, any subsequent statements can be excluded D. Without the warnings, suspect’s statements are inadmissible E. Without voluntary, knowing and intelligent waiver, suspect’s statements are inadmissible F. Not giving Miranda warnings is not a constitutional violation; the violation occurs if the prosecution tries to introduce statements made while suspect is in custody and unMirandized 5. Miranda v AZ A. Held: a confession made during a custodial interrogation is inadmissible unless the suspect receives four “warnings” describing his rights and then makes a knowing and voluntary waiver of these rights before confessing. B. Reasoning: i. Miranda warnings are necessary to protect a suspect’s 5thAmendment right to remain silent from the inherently coercive pressures of custodial interrogation. The balance of power b/t the LEO (State) and the suspect is inherently skewed. 36

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ii. Techniques of physical abuse and psychologically-oriented techniques as well as isolation, good cop-bad cop routines and other methods to overwhelm worked to intimidate suspects, thus a judicial safeguard was necessary. iii. In fact, the very ordeal of custodial interrogation runs the risk of compulsion. iv. The principles embodied in the privilege apply equally to the compulsion of testifying unwillingly against oneself at trial as well as to the “informal compulsion” of custodial interrogation by the police. v. The legislature can devise other equally effective ways of protecting the privilege, but in their absence, Miranda warnings must be given 2- “Custody” 1. “Custody:” formal arrest or “restraint on freedom of movement of the degree associated w/ arrest” 2. Custody = totality of the circumstances std 3. Stansbury Objective Test: the test for custody under Mirandais an objective one—would a reasonable person feel free to leave? The LEO’s subjective state of mind doesn’t matter; what matters is whether the LEO conveys the perception that the suspect is or is not free to leave 4. Yes, “custody:” A. Miranda: custodial interrogation or otherwise deprived of his freedom of action in any significant way B. Orozco: awakened and questioned in suspect’s bedroom at 4am; one LEO testified that the suspect was not free to go b/c he was under arrest even though there was no evidence that the defendant was so informed. Thus absent Miranda warnings, defendant’s statements made in the bedroom were held to be inadmissible. C. Police interrogation room, absent consent? i. Purpose of the police investigation ii. Place and length of interrogation iii. Suspect’s awareness of his freedom to leave iv. Actual freedom from restraint v. Coercive strategies vi. Similarity of the setting to the “police dominated” atmosphere of the police station 5. No “custody:” A. Berkemer: roadside detention of a motorist pursuant to a traffic stop is not “custody;” the seizure was a Terrystop, not an arrest. While the motorist might not feel free to leave, a traffic stop is not a “police-dominated” pressurized situation in the same way as a post-arrest interrogation. But a traffic stop where police engage in coercive activity associated w/ formal arrest will trigger Miranda protections B. Terry Stops: usually brief, temporary, conducted in the public eye; the pressures of an investigative stop don’t approach the “inherent coercion” of post-arrest interrogation C. MN v Murphy: self-incriminating statements made in probation officer’s office ≠ custody i. Interview w/ probation officer doesn’t convey message that defendant has no choice but to submit ii. Not an “unfamiliar atmosphere” in which to overbear the defendant’s will iii. No compulsion or sense that interview would continue until defendant confessed 3- “Interrogation” 1. RI v Innis: express questioning or its functional equivalent; includes words or actions that police should have known were reasonably likely to elicit an incriminating response from an avg suspect A. Held: Two officers were talking about a weapon they were looking for within arrestee’s earshot; arrestee interrupted them and offered to show them where the shotgun was located. SC found that the statements about the gun’s location were properly admitted as they were not the product of any interrogation w/in the meaning of Miranda. B. Innis Rule:is the police activity reasonably likely to elicit an incriminating response? LEO intent matters but focus on suspect’s perceptions

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2. Perkins Rule on Speaking to Undercover Cops: when the suspect is unaware that he is speaking to a cop, Mirandawarnings are not required. Thus undercover agents posing as fellow prisoners may elicit incriminating statements from an incarcerated suspect w/o giving Mirandawarnings. A. Rationale: If suspect doesn’t know that he’s talking to LEO, then the “coercive atmosphere” of police interrogation is missing. B. Dissent: this might encourage undercover activity to elicit incriminating statements. 4- Waivers 1. Miranda: must be voluntary, knowing and intelligent 2. Moran: no waiver can be considered knowing and intelligent in the absence of Miranda warnings A. Voluntary = the product of a free and deliberate choice rather than intimidation, coercion or deception B. Full Awareness = of the right being abandoned and the consequences of abandoning it C. Sufficiency: suspect need not be informed that an attorney retained by his sis is asking to be present during his interrogation; since the suspect retains the right to waiver, after Miranda warnings are given, he has all the info he needs to produce a valid waiver 3. Butler: an express written or oral waiver of Miranda rights is not an absolute requirement for a valid waiver; waiver cannot be presumed from silence but silenced coupled w/ a course of conduct consistent w/ abandonment of Miranda rights would support a finding of waiver 4. Moran v Burbine A. Waiver: under the totality of the circumstances test, LEO have to prove both an uncoerced choice + requisite level of comprehension for the ct to conclude that Miranda rights were waived B. Held: the Morandefendant claimed a need to know that his lawyer had contacted the police and sought contact with him. The police either recklessly or intentionally withheld this information but the SC held that events occurring outside of the presence of the suspect and entirely unknown to him have no bearing on his capacity to relinquish a constitutional right. The Miranda warnings provide all the info that law enforcement need to convey. 5. Oregon v Elstad A. A waiver must be voluntary. B. Elstad Rule: For a defendant to argue that his statements should be excluded because they were involuntarily procured, he has to show that coercive police conduct caused his waiver to be the product of intimidation, coercion or deception under the Morantest. The defendant has to show that his will was overborne and that his capacity for self-determination was critically impaired. 5- Warnings 1. If Miranda warnings are not given, waiver is impossible and the presumption of police coercion is irrebuttable. 2. Thus LEO must know what the Miranda warnings are. 3. Miranda does not require that suspects be given lawyers immediately, only that if suspects invoke their right to counsel, the questioning must stop immediately; counsel will be appointed when they go to court. 6- Waiver After Invoking the Right to Counsel 1. What happens when the suspect receives the warnings, invokes his right to silence or to counsel and then changes his mind and decides to speak up? 2. “Cooling Off” Period A. Invocation of right to silencemust be “scrupulously honored.” Thus continuing interrogation shortly after the right to silence has been invoked is not “scrupulously honoring.” B. Mosley Right to Silence Rule: But 2 hours after invocation, when diff officer gives another, fresh Miranda warning and suspect then makes a statement, that statement can be a knowing and voluntary waiver. 3. Right to Silence Must Be Clearly Invoked A. Davis: the right to silence/counsel must be clearly and unambiguously invoked; if suspect’s statement carries any doubt as to whether he’s invoked his right to silence/counsel, the questioning may continue 4. Waiver After Invoking the Right to Counsel and Suspect Initiation 38

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A. Edwards Rule: if suspect invokes the right to counsel(not the right to silence), then police cannot reinitiate interrogating him. Either the suspect must re-establish communication w/ the police first, in order to constitute valid waiver, or his lawyer must show up B. Distinguished from Mosely: a suspect can change his own mind after he invokes his right to silence; but initially invoking the right to counsel is diff b/c that indicates that he feels outmatched and is unwilling to deal w/ the police on his own—in that situation, it’s unlikely that he’d unilaterally change his mind thus right to counsel has stricter procedural safeguards unless the suspect initiates the change of heart C. Edwards v AZ i. Facts: suspect invoked his right to counsel by saying “I want an attorney before making a deal.” Police ceased interrogating him. In the morning, police gave suspect new Mirandawarnings, resumed interrogating him and obtained a confession. There was no showing that the suspect did not understand his rights or that his will was overborne. ii. Held: The waiver is invalid b/c of the police-initiated re-interrogation; the confession was inadmissible. iii. Rule: Police cannot obtain a valid waiver after suspect has invoked his right to counsel unless the suspect initiates further communication w/ the police or counsel is provided. 5. What constitutes suspect initiation? A. Wyrick: After consulting w/ counsel, suspect requesteda lie detector test; after this request, it was proper for the examiner to seek a waiver of rights, which suspect signed, indicating that he did not want counsel during the exam and during post-exam questions. Thus the statements made during these periods were admissible. B. Bradshaw i. Defendant invoked the right to counsel; en route to the jail, suspect asked LEO “well, what is going to happen to me now?” LEO responded by telling the suspect that he didn’t have to talk to him, that he had asked for an attorney and that the LEO didn’t want to talk to him unless he desired it. Suspect said he understood and then confessed. ii. Plurality: suspect’s statement to the LEO constituted initiation and valid waiver thus his statements are admissible. iii. The defendant’s inquiry was deemed to evince a generalized discussion of the investigation, as opposed to a request for a drink of a water. iv. Rule: Under the totality of the circumstances test for waiver, this was valid waiver since D initiated, was given fresh warnings, understood the warnings and there was no evidence of coercion or inducement to talk. 7- Miranda’s Constitutional Status? 1. Miranda’s Dissenters A. Clark i. Ask whether the Due Process clause was violated by the procurement of the confession. ii. This would be a TotC test and the failure to give Miranda warnings is only one relevant factor. iii. The majority went too far, too fast in the absence of empirical data about the practical operation of Miranda. B. Harlan i. The majority should not have extended 5thA compulsion doctrine into the interrogation process. The DPC of the 5th should be the sole standard for judging the voluntariness of confessions. There were no 5th/6th A precedents to support the majority’s holding. ii. DPC is the best std: a. Already incorporated a “protective concern” for suspects b. The 5th A precedents don’t condemn all pressure to self-incriminate and they shouldn’t prohibit the mild pressure that the DPC doctrine would have permitted c. No precedent requires “precise knowledge of one’s rights” as a pre-requisite to the loss of 5th A protections iii. The rules won’t deter blatant coercion b/c LEO will just lie about warnings and waivers iv. The rules will result in the marked loss of useful confessions, which are key to crime control 39

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C. White i. The majority doesn’t make sense b/c spontaneous q’s could be considered voluntary but confessions in response to a single question could be considered “compelled.” ii. Miranda warnings nor the presence of counsel could make coercion disappear iii. Waiver could be considered voluntary under Miranda, but presumptively coercive w/o Miranda, yet both occur in the same “inherently coercive” setting of interrogation. iv. To prove voluntary and knowing waiver is too high a burden to place on the state. 2. Mirandalanguage suggests that its safeguards are not constitutionally required. There’s obviously no language mirroring the Mirandalanguage anywhere in the Constitution. And Congress and state legislatures can develop their own safeguards consistent w/ Miranda. In some post-Miranda cases, the court referred to the “non-constitutional” status of Miranda to justify some doctrinal restrictions. 3. Dickerson v US A. Facts: After Miranda, Congress passed Sec 3501 which provided that voluntary confessions should be admissible. It further stated that there was no absolute requirement that the defendant be informed of his right to silence and to counsel, noting that these were factors in determining voluntariness but were not dispositive. Sec 3501 clearly contradicted Miranda. B. Held: Miranda is a constitutional decision of the Supreme Court, not a rule of evidence or procedure or part of the fed common law that Congress can override. C. Reasoning: i. Miranda applies to state courts, not just federal. ii. Miranda is about the 5th Amendment and how to protect a suspect’s right to not self-incriminate. iii. The fact that legislatures are free to devise other rules, consistent w/ Miranda, to effectuate the privilege against self-incrimination just means that the precise language need not be followed. iv. The fact that there are exceptions like Quarles is just part of the idea that no constitutional law is immutable. v. Under stare decisis, there is no doctrinal reason to overrule Miranda, thus it stays. 8- Limits on Miranda’s Exclusionary Rule 1. Miranda violations do not give rise to a Sec 1983 c/a A. Chavez v Martinez i. Where Miranda-defective statement was made but the statement was never introduced at trial, there was no 5th Amendment violation b/c the 5th is pegged to trial. ii. Chavez Rule: Thus with no 5th A violation, there’s no Sec 1983 cause of action. 2. Public Safety Exception A. Quarles Rule: Police questioning about a weapon or other public safety threat of a suspect before Mirandizing him is permissible under the public safety exception 3. Impeachment A. Harris Rule: Miranda-defective statements can’t be admitted as evidence but can be used to impeach the defendant as prior inconsistent statements B. Doyle Rule: when the govt induces silence, ie by Mirandizing, the silence cannot be used to impeach; can’t punish the suspect for invoking a right C. Jenkins Rule: if govt doesn’t induce the silence, then silence can be used to impeach D. Harris v NY i. Facts: At trial, defendant testified that he sold baking powder in a scam to an undercover agent. But in his post-arrest, unMirandizedstatement to the police, he claimed to have acted for the agent in buying drugs from others. This unMirandized statement was not introduced as evidence at trial but the prosecution did bring it in to impeach the D. ii. Held: Miranda-defective statements can be used to impeach the defendant. E. Doyle v OH i. Facts: At trial, defendant testified that he had been framed by someone else in a drug sale. (He failed to mention this to the police when he was arrested and Mirandized.) The prosecution sought to impeach w/ their post-arrest silence arguing that it was inconsistent to remain silent at that point since they had an excuse for their conduct. 40

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ii. Held: If Miranda is to have any meaning, then can’t punish a suspect for exercising his right to remain silent. iii. Doyle’s restriction in impeachment only applies when the govt induces silence, ie by Mirandizing. F. Jenkins v Anderson i. Facts: at trial, the defendant claimed self-defense to a murder charge. The prosecution sought to impeach him by asking him why he failed to report the homicide to anyone for two weeks before turning himself in. ii. Held: The use of pre-arrest silence to impeach a defendant doesn’t violate the 5th or the Doyle rule 4. Ineffective Midstream Warnings A. OR v Elstad i. Facts: Police visit Elstad’s house asking for info about a burglary. A single comment by an officer prompted an unMirandizedElstad to admit to being at the burglary. It’s not clear that this was an interrogation or even custody. Police take Elstad down to the station, given him his Miranda rights and he then confesses. ii. Held: The station confession is admissible b/c the warnings given later at the station were “adequate” since the station house interrogation was a “new and distinct experience” for Elstad. iii. Reasoning: a. The careful Mirandizing that occurred later cured the defect of the first statement, thus cleaning the way for the second statement to be admissible. b. Elstad could argue that his first statement was involuntary but it will be hard to argue that given the facts. (If the first statement is voluntary, then no poisonous tree) c. If Elstad’s first statement truly was involuntary, then under the fruits of the poisonous tree doctrine, the second statement can be excluded. d. The poisonous tree doctrine only works when the statement giving rise to the fruits is involuntary or coerced. B. MO v Seibert i. Facts: Police used a technique where they would ask questions w/o Mirandizing and then after they had gotten some useful info, they would Mirandize and essentially get the suspect to waive his rights and refer back to the previous incriminating statements. ii. Held: The “question first, warn second” is an attempt to circumvent Miranda. iii. Plurality Test: Thus in such cases, a court has to determine if the warnings given at stage 2 effectively advise the suspect that he has a real choice to stop talking even though he’s already let the cat out of the bag. a. Thus if the midstream warning is inadequate, then the post-warning confession is excludable (and you don’t get to the Elstad question of whether there was valid waiver or not). b. But if the midstream warning is adequate, then LEO will have to prove valid waiver and suspect will argue involuntariness. iv. Breyer Concurrence: If the failure to warn at stage 1 was intentional, then exclude statements made at stage 2. But if the failure to warn at stage 1 was in good faith, then don’t exclude statements made at stage 2. v. Kennedy concurring in the judgment: a. If Miranda was intentionally violated at stage 1, then exclude the stage 2 statements whose substance is related to the stage 1 statements. b. But if “curative steps” are taken at stage 2 to ensure that a reasonable person in the suspect’s position would understand the import of the Miranda warning, then it’s ok to include the stage 2 statements. 5. When Miranda violations lead to other evidence/Poisonous Tree Doctrine? A. Rule: Miranda-defective statements are presumed to be coerced and are thus excluded at trial. B. Rule: Miranda-defective statements made at Stage 1 can be remedied so that Mirandized, uncoerced statements at Stage 2 can be admitted at trial. (Elstad/Seibert) C. Rule: Uncoerced Miranda-defective statements that lead to physical evidence statement excluded, physical evidence admitted (Patane) 41

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D. Rule: Coerced statements that lead to physical evidence  Poisonous Tree, statements and physical evidence are excluded (Patane/Elstad Hypo) E. Elstad i. The failure to warn before obtaining an initial confession does not render a second voluntary (uncoerced) confession, obtained after proper Mirandizing the inadmissible fruits of the initial Miranda violation. ii. Remember the Elstad Court said that police can remedy an initial failure to warn by subsequently giving the warning midstream. iii. The Siebert Court explains how to evaluate the validity of the midstream warning; in some circumstances, it’s not valid. F. US v Patane-physical evidence i. Facts: Suspect arrested for felony gun possession; is given a truncated Mirandawarning (b/c he interrupts LEO and says he “knows” his rights). LEO asks where’s the gun and after dodging the q for a min, he gives its location + consent for LEO to go inside the house and seize it. At trial, suspect argued that his unMirandized statements were inadmissible and since the physical evidence was the fruit of a Miranda violation, they too should be inadmissible. ii. Held: The exclusion of unwarned statements is a complete and sufficient remedy for a Miranda violation but excluding physical evidence (as long as it’s not coercively procured) is not a remedy. iii. Plurality reasoning: a. If a suspect’s unwarned but uncoerced statement leads to physical evidence, that physical evidence need not be excluded. b. Physical evidence has important probative value and reliability and excluding it is not going to further the Miranda goal of deterring suspect compulsion. (B) INTERROGATION AND THE 6TH AMENDMENT RIGHT TO COUNSEL Deliberate Elicitation and the Adversarial Proceeding 1. 6th Right to Counsel: in all crim prosecutions, the accused shall enjoy the right to … have the assistance of counsel for his defense (made applicable to the states through the 14th) 2. Rule: the 6th attaches at arraignment, as soon as formal proceedings have begun 3. Massiah Post-Indictment Rule: all indicted defendants posses a 6th A to consult w/ counsel when police are deliberately trying to obtain information from them; if the 6th A is to have any value, it must apply to both direct and surreptitious interrogations by LEO 4. Massiah v US A. Facts: D was arrested, arraigned, indicted, retained a lawyer and was released on bail along w/ Colson. Colson strikes deal w/ LEO and agrees to cooperate. LEO wires Colson; Colson then has a conversation w/ D in his care while LEO overhear. D makes incriminating statements which are introduced at trial. B. Held: D’s 6th A rights were violated b/c govt deliberately elicited incriminating statements after indictment and in the absence of D’s lawyer C. Compared to Miranda: i. Miranda interrogation: words or actions that are likely to elicit incriminating response (Innis) ii. Massiah interrogation: deliberate elicitation; takes into account LEO intent iii. Miranda custody: formal arrest or restraint on freedom of movement iv. Massiah: right to counsel attaches at arraignment 5. Escobedo v IL A. Facts: D was arrested but not charged or indictedand had invoked his right to counsel. LEO refused to allow his lawyer to see D. D was interrogated and made self-incriminating statements. B. Held: D’s 6th A rights were violated, but very narrow holding: i. Investigation had focused on one individual ii. Who was in custody and being interrogated iii. Asked for lawyer and was denied iv. No warning of his right to remain silent 42

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6.

7.

8. 9.

v. Then 6th is violated. C. Reasoning: i. This case predates Miranda but seemed to extend a 6th A right to counsel to an unindicted suspect in custody. ii. The reliance on Massiah is sketchy b/c D had not yet been indicted or charged, thus he’s not really an “accused.” iii. But does signify the court’s readiness to be suspicious of LEO who deny an asserted right to counsel. Miranda and Escobedo A. If Escobedo created a pre-indictment 6th A right to counsel, Miranda says no. B. If Escobedo created a pre-indictment 5th A right to counsel, it’s supported by Miranda. C. Miranda subsumes Escobedo. Miranda and Brewer-Massiah A. Miranda: protects against the inherent pressure and compulsion of a police interrogation; applies to any custodial interrogation B. Brewer-Massiah: protects against LEO bad faith or attempt to circumvent D’s invocation of a lawyer by deliberately eliciting incriminating statements ME v Moulton: 6thA attaches to specific offenses only. If 6th attaches to Crime 1, it doesn’t automatically attach to investigation of Crime 2. Brewer v Williams A. Facts: LEO, knowing that D has been arraigned, repeatedly been Mirandized and has retained lawyers, gives him a “Christian burial speech” during a long car ride deliberately designed to elicit incriminating statements. D makes self-incriminating statements and leads the LEO to the victim. B. Held: the LEO’s deliberately elicited self-incriminating statements in violation of the 6th. There was no waiver of D’s right to counsel. C. Reasoning: i. There was no waiver of D’s right to counsel: a. LEO and D knew that D had retained lawyers at both cities and had been relying on them prior to the car ride b. D made clear to the LEO that he would tell them everything when he got to the destination city. So when D is making it clear that he is relying on his attorneys, the court is going to require a much stronger showing of waiver. ii. D gets a new trial. a. His statements are out. b. But the physical body is probably in. LEO still has ability to argue for inevitable discovery or alternate source points to the victim. iii. On remand the body gets in and D is convicted.

Invocation and Waiver 1. Brewer/Patterson Waiver Test: govt has the burden of proof that the waiver was voluntary, knowing and intelligent 2. Jackson/Edwards Rule: if defendant invoke 6thA right to counsel, he can only waive that right if he initiates communication w/ LEO. If LEO initiate first, it’s still a violation even if there’s evidence of real waiver. D must initiate communication (and therefore waive) first. 3. Rationale: A. The post-arraignment right to counsel (6th A) should get at least as much protection as Mirandain custodial interrogations. In both cases, the D has manifested an unwillingness to deal w/ the police. B. But once formal proceedings are underway and the 6th attaches, LEO are prohibited from certain investigatory techniques (like a Perkins-style interrogation) that might’ve been permissible prearraignment. 4. MI v Jackson A. Facts: At arraignment, D asked for counsel. After arraignment, LEO approached D, Mirandized him, obtained voluntary waivers and got incriminating statements. 43

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B. Held: The purported waivers of the 6th A right to counsel were invalid b/c D did not “initiate contact” with LEO after invoking his rights, regardless of evidence of waiver. Thus the Edwards brightline initiation rule for Miranda waivers also applies to 6th A right to counsel invocations. 5. McNeil Rule: D’s request for assistance of counsel before a judge only attaches to the offense with which he was charged. LEO is free to seek waiver of Miranda rights for crimes unrelated to that charge. 6. McNeil v WI A. Facts: D charged w/ robbery; requested counsel at his initial appearance and got it. Later that night, LEO Mirandized him and got a valid waiver + incriminating statements concerning an investigation for attempted murder and burglary. B. Held: the 6th only attached to the robbery charge; the Mirandizing and waiver for the murder/burglary charges are valid. C. If the Jackson-EdwardsRule applied here, then LEO would lose out on the statements regarding the murder/burglary charge b/c LEO initiated communication. This makes sense b/c the 6thattaches to specific offenses and is triggered upon formal proceedings. No formal proceedings had yet begun for the murder/burglary. Otherwise, this would hamper LEO efforts at investigating separate crimes.

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