Criminal Procedure
Fall 2017
Amendment IV
“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 oath or
affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
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SEARCHES AND SEIZURES
Standard: Search or seizure must be REASONABLE
Can have reasonable searches w/o warrants
If warrant, there must be probable cause & particularity requirement
A. Historical Antecedents: Trespass
 Olmstead (1928): wiretaps in basement of buildings and “in the streets near the houses”
o → no 4A violation because “no entry of the houses or offices of the defendants”
o Post-Olmstead: two lines of cases
o Incriminating info obtained through electronic listening devices
o Incriminating info obtained through human being whom the defendant foolishly trusted (“false friend”)
B. Early 4A “Trespass Cases”:
 Information obtained through electronic listening devices
o Goldman (1942): “detectaphone” on outer wall of building to listen to conversations inside (no 4A
violation)
o Silverman (1961): “spike mike” in party wall that picks up conversations through heating ducts (4A
violation – physical intrusion)
o Clinton (1964): thumbtack-sized penetration of wall (4A violation)
 The Katz Revolution:
o Katz v. United States (1967) (p. 5)
o FACTS: “bug” on outside of telephone booth
o →
Why did government officials believe they did
not need a warrant to listen into
conversations in this manner?
o HELD: “The Fourth Amendment protects people, not places.”
o **Justice Harlan’s two-prong test:
 An actual (subjective) expectation of privacy; and
 The expectation must be one that society recognizes as reasonable.
 Information obtained through “false friend” / “unreliable ear”
 On Lee (1952): incriminating info revealed to friend/informer transmitted electronically to nearby officer
(no 4A violation)
 Lopez (1963): IRS agent records defendant attempting to bribe him in D’s office (no 4A violation)
 Hoffa (1966): incriminating statements to business associate who, unbeknownst to D, was cooperating with
the prosecution (no 4A violation)
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United States v. White (1971) (p. 11)
o ISSUE: admissibility of testimony of agents conducting electronic surveillance, where the informant is
unavailable at trial
o → very similar to On Lee, decided on trespass grounds
o HELD: no 4A violation on privacy grounds
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o → The Court concludes that there is no distinction between the “tattletale” and the “transistor” – i.e.,
“probable informers and probable informers with transmitters.” What does this mean? Do you agree?
o [ADD REASONING]
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Smith v. Maryland (1979) (p. 17)
o ISSUE: Does use of information gleaned from a “pen register” violate the 4A?
o HELD: Neither prong of Katz test is satisfied.
o
o
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Dissent (Stewart): “private conduct within a person’s home or office”
Dissent (Marshall): disclosure to phone company is not for all purposes; reasonable privacy expectations should not be based
on risks we are forced to assume.
Note: Most cases fail under Katz #2.
C. Modern Applications:
 2014: The U.S. National Security Agency (“NSA”) has been collecting the “telephony” metadata for an
estimated 20 to 30 % of all telephone calls made inside the United States for the last seven years.
 → numbers dialed and received, time, place, and date (not content)
 Justification: Smith v. Maryland (yes? no?; Does the collection of this info implicate your right under
Katz?
 Garbage Case!
o HELD: no 4A privacy interest in garbage left at the curb for collection
o “[T]he police cannot reasonably be expected to avert their eyes from evidence of criminal activity that
could have been observed by any member of the public.”
o The Court cites Smith v. Maryland in support of its holding. What is similar about pen registers and
garbage left at the curb for collection??
o Note: this is NOT about private actors seizing garbage
o Certain states have issued opposite holdings based on their state constitution.
D. Problem 1-11 (p.61):
 Applying the Katz test to the facts of this case, do you believe the claimants Fourth Amendment rights were
violated?
 What is an individual’s reasonable expectation of privacy in a communal locker room?
 Could Detective Schneider have conducted in-person, visual surveillance of this same area during the
relevant period?
 What if the tape was meticulously erased everyday? Doesn’t matter the issue was the fact that it was being
memorialized
 Answer: Summary judgment in favor of Plaintiffs. Violated subjective intent and societal values (reasonable
expectation).
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Problem 1-5 (pg. 56)
o If we assume that the search warrant was defective (as the district court found), should the evidence
gathered under it be suppressed?
o Is the Fourth Amendment implicated, in the first instance, by the government’s conduct in obtaining the
criminal evidence?
o NH accepts Smith v. MD (pen registers) but rejects Greenwood (garbage) under its state constitution.
Does this influence your analysis?
 One expects info to be given to service providers, but not the police
 Comcast didn’t voluntary hand it over because: 1. They didn’t think they had a right; and 2. They
didn’t’ want their customer to sue them.
  If the warrant was necessary and you needed it, then evidence had to be suppressed.
  If you never needed the warrant in the first place, then it doesn’t matter that it was defective
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Held: court found this to be the modern equivalent of Smith v. MD.
Takeaway  anything you expose to a third party, does not get 4A protection.
E. Protected Spheres:
 The Home  expressly protected
 The “curtilage”  are around home (front porch/backyard); considered an extension of the house; the more
open, the less likely it will be considered curtilage
 The “open fields”  everything else are open fields; unprotected.
 Examples of Protected spheres:
o Woman in living room w/ letter (paper) and purse (effect)  expressly protected
o Moving to closed backyard  same constitutional protection
o Woman in open fields, puts letter and purse on the floor and walk away  these are abandoned paper
and effects  no protection
o Note: had she put them down in her home then cops could not just search her home for them.
 California v. Ciraolo (1986) (p.25) (The “Fly-Over Case)
o The plane flew within public airspace
o HELD: Katz test not satisfied.
o Key Considerations:
 public, navigable airspace;
 no physical intrusion;
 plants visible to the naked eye.
o Random (though intriguing) question:
o What’s the deal with the reference to the two-decker bus??
o
Truth or hyperbole?? : “Families can expect to be free of official surveillance only when they retreat behind the walls of their
homes.” (Powell, J., dissenting)
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Note: In a densely populated area, one has less expectation of privacy
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Florida v. Riley (1989) (p.31) – Ciraolo reconsidered
o KEY FACTS: helicopter at 400 feet
o 4-1-4 split: Plurality (White): compliance with FAA regulations
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Concurrence in Judgment (O’Connor): members of public fly at this altitude with “sufficient regularity”
o Standard: Anything you see below when you fly in public airspace
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Post-Riley case in PA: helicopter flying over house at 50 feet; buzzed over house 3 times; house shook
o Holding: in favor of Defendant. 50 feet wasn’t the issue, it was that the house was shaking; D won
because of the danger of the conduct.
o If within parameters of FAA, then the court shifts the burden to the Defendant to show irregularity.
F. “Open Fields” versus “Curtilage”
 Oliver v. United States (1984) (p. 31):
o “any unoccupied or undeveloped area outside of the curtilage, including an area that is neither ‘open’
nor a ‘field’ as those terms are used in common speech.”
o Examples: open beaches, reservoirs, open waters, wooded areas, lands fenced in and/or posted with
“no trespassing” signs
 United States v. Dunn (1987) (p. 32)
o Facts: Carpenter had bought large chemicals to make drugs. The DEA placed “beepers” in some of the
equipment, which led them to Carpenter’s ranch. The truck was backed up to a barn behind the ranch
house. There were 3 barriers/fences (wooden and barbed wire) that the officers crossed. They stopped at
the locked gate outside the barn and shined a flashlight inside, observing a drug laboratory. Then
obtained search warrant and arrested Carpenter.
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o Four factors relevant to whether an area qualifies as curtilage:
o The area’s proximity to the home;
o The existence of an enclosure around the area;
o The nature of the use to which the area is put; and
o The precautions taken to exclude others from the area.
o Court’s Reasoning: Farms always have barbed wire to keep animals from charging out or in. All of these
fences were for livestock reasons!
o Held: on balance, this was NON-CURTILAGE
G. Problem 1-2:
 Facts: entered fenced-in rear yard; proceeded to the fenced in side yard; fenced are is only open for
tenants; window was open 5-6 inches
o First part of Test: subjective expectation of privacy?
 Applying pen register case  lost on step 1: lack of privacy on subjective expectation of privacy.
 Blackletter law: anything you voluntarily expose to 3rd parties, loses its 4th Amendment protection.
 Hypo: suburbs- neighbors on 3-4 story can see into backyard. Any reasonable homeowner won’t have
expectation of privacy as someone who lives in the country.
 Cops have every right to look at things where they are allowed to be
 Subjective expectation: any cotenant could have seen this from the shared space.  if you want to have
this private, you need to close the window.
H. Shared Curtilage
 E.g. 2 family home between and among people who live there
o Most courts say it is shared
o As you extend it to large apartment building, it becomes even more complicated.
I. “Commercial” curtilage:
 Dunn: Even if the barn is “commercial curtilage,” peering into it is not a 4A violation (peering in vs
entering the barn)
 Dow Chemical v. United States (1986) (p. 32-33): suggests that “commercial curtilage” merits some 4A
protection, though less than homes. Interpreting Dow Chemical, lower courts have generally required
physical intrusion of the premises in commercial curtilage cases, not mere aerial photography as in Dow
Chemical.  NEED PHSYCIAL INTRUSION IF COMMERCIAL CURTILAGE
 Note: in fair sight/smell is fair game. Even if home, if windows are open and cop sees incriminating
evidence, he can photograph it.
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Bond v. United States (2000) (p.38):
o ISSUE: 4A violation when border patrol agents “squeeze” soft luggage on bus?
o HELD (Rehnquist): YES.
 visual versus “tactile” manipulation
 reasonable expectation that bags will not be handled “in an exploratory manner”
o Level of severity (increasing): Visual; Squeezing outside of bag; Going inside bag
o
Dissent (Breyer): A “jurisprudence of squeezes”
o Note: drug dogs in train station are fine
o Note: new reality post 9/11
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Kyllo v. United States (2001) (p.42):
o ISSUE: Is 4A implicated by the use of a “thermal imaging” device designed to detect “hot spots” inside
the home where lamps were placed to cultivate marijuana?
o HELD (Scalia): YES.
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 all details re home-based activity are intimate details
 device is not in “public use”
 no meaningful difference between “off the wall” and “through the wall” surveillance
o Note: cops were getting the info from the street  “open fields”
o Stating this device is a proxy for physically entering the home!
o “public use”  if this all becomes common in the future, then it would fall outside 4A protection.
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United States v. Jones (2012) (p. 33)
o ISSUE: Placement of GPS device on undercarriage of vehicle to track movements for 28-day period
o HELD (Scalia): 4A applies. Physical intrusion on constitutionally protected area for purposes of
obtaining information. [TRESPASS IS BACK!!]
o device not placed with the consent of the car’s owner [contra – Knotts (1983) (p. 31): beeper installed
in chloroform contained with consent of seller]
o distinction between short-term and long-term monitoring [Knotts: short-term monitoring of container’s
movement to find drug lab]
o  government didn’t get warrant because they said it was equivalent to the beeper cases.
o The GPS was physically attached to an effect (the car)  trespass and attempt to find something/obtain
info
o  the word privacy was nowhere in this majority opinion.
Florida v. Jardines (2013) (p. 35)
o ISSUE: Cop brings drug-sniffing dog to front porch of residence
o HELD (Scalia): 4A search.
o “unlicensed physical intrusion” to gather evidence
 → What are the limits of officers’ “implicit license” to approach the front door of a residence?
 Following up on a complaint- would be fine
 Respond to emergency
 “knock and talk”
o no need to reach the privacy (Katz) issue
o There is no problem for there to be a dog sniffing in airport/pulled over for speeding. Buy why is this
different?
 Emphasis on a HOME: unlike common carriers/public streets)  home is a protected sphere.
 The majority here is focused on PURPOSE. Purpose to gather criminal evidence.
 Fit into Jones: officer physically intruded because outside implicit license!
o
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Dissent (Alito): no meaningful distinction between officers’ “implicit license” here and in “knock and talk” context
Applying Jardines (case example- handout)
o Facts: house w/ no trespassing signs
o Did it negate the “knock and talk”?
o They didn’t tell the officers to leave or point to the signs
o  if you have an enclosed backyard/front yard, it is curtilage  even if the front yar is curtilage – you
still have an implicit license to knock and talk
o Split decision: (state case)
o The majority (joined by concurring judge): this didn’t implicate the 4th amendment  “hunting, fishing,
and trapping” – this isn’t normal conduct of knocking and talking
o
Dissent (new justice): if this doesn’t erode the implied social license, then what does? (exception for exigent circumstances,
not evidence gathering)
o The knocking for 15 mins  not issue for court (people are hard of hearing).
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Grady v. North Carolina (2015) (p.37): State program subjecting recidivist sex offenders to satellite-based
monitoring constitutes Fourth Amendment search. -- Note: No determination of the reasonableness of the
program
United States v. Jacobsen (1984) (p. 52)
o ISSUES: Did federal agents violate the 4A by:
 inspecting a package previously opened by federal express employees – NO: privacy frustrated by
third party
 by subsequently testing the contents of the package to determine if it was cocaine – NO: no privacy
interest in contraband
  the feds didn’t open it anymore than did.
Example Hypo of “Leggs,Inc”  compare to Jacobsen:
 Only way to conclusively determine if this is obscene is to watch the material, but that doesn’t excuse a
warrant if one is needed
 Compare to Jacobsen:
o If cocaine, no privacy in illegal drugs
o If not cocaine, then just a powder  no privacy violation
 Compare to tapes: not as much of a hardline between criminal or innocent
o The tapes can tell you things about your private life
 The receptionist  Fed Ex
o Frustrated privacy interest: saw tapes w/ picture on outside! BUT here, the officers did MORE
unlike in Jacobsen, officers didn’t do more than FedEx.
 Holding: should have gotten a warrant!
 Because FedEx frustrated the privacy interest, the police didn’t violate 4A because they did the same as
what FedEx did. In this Hypo, government needed a warrant
 Hypo: what if receptionist viewed all the child porn tapes  then police could too.
PROBABLE CAUSE
A. 2 Applications of Probable Cause:
 Arrest: sufficient likelihood that a person has committed or is committing an offense
 Search: sufficient likelihood that contraband or evidence of crime will be found in the area searched
o Hearsay from informants is admissible for probable cause
o Info goes “stale” in search but not arrest context
 What could be there in search, may no longer be there if you waited too long
B. Draper v. U.S. (1959) (p. 68)
 HELD: Informant’s tip, coupled with corroboration by police, provided probable cause to arrest
o informant info was “accurate and reliable” in the past
o info provided: Draper’s appearance, attire, ambulatory speed, arrival on certain date by train from
Chicago, carrying heroin
 Note: the more generic the info, the less you can have a basis for probable cause
C. Aguilar and Spinelli Test:
 Aguilar v. Texas (1964) (discussed in Spinelli)
 Affidavit: police have “received reliable info from a credible person and do believe” that drugs and drug
paraphernalia are being kept on the described premises
 → Why is this insufficient to furnish probable cause for a search warrant?
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Framers wanted a neutral, detached 3rd party to test probable cause
Probable cause based on informants’ tips - what Aguilar required:
o “Basis of knowledge:” the underlying circumstances from which the informant concluded that the
contraband was where he claimed it was [personal observation; highly detailed (“self-verifying”)
info]; and
o “Veracity:” some of the underlying circumstances from which officers concluded that the informant
was credible or his info reliable [facts re propensity for truth-telling; credibility on a particular past
occasion; corroborated, detailed information].
→ These two requirements define what has become known as the “Aguilar-Spinelli test.”
D. Spinelli v. United States (1969) (p.69)
 Tip: Spinelli is operating a handbook, accepting wagers, disseminating wagering info via telephones,
perhaps with numbers “Wydown 4-0029" and “Wydown 4-0136.” Also, police corroboration re Spinelli’s
possible use of the phones with those numbers.
 Better than Aguilar, but still not enough. Why?
 Why is Draper better? [Is it?]
 Basis of knowledge  the tip didn’t contain a sufficient statement of the underlying circumstances
 Veracity – offered no reason to support that informant was reliable
 Compared to Draper: Based on similarities, he must have known what was going on.
E. Illinois v. Gates (1983) (p. 79)  the New Frontier
 Probable cause = a fair probability that contraband or evidence of crime will be found in the area searched –
a “common-sense practical” determination
 Abandons Aguilar-Spinelli test in favor of totality-of-the circumstances test; satisfaction of A-G’s two
prongs relevant, but not dispositive
 If we stick to Aguilar-Spinelli test, you are practically knocked out by “basis of knowledge” when you get
an anonymous tip.
 Looking at the totality of the circumstances, you would have though the anonymous tip had knowledge b/c
almost all of their actions were on point to what the letter said.
 Concurrence (White); said Aguilar-Spinelli test would have been met.
 Self-verifying detail can overcome whatever basis of knowledge doubt you have
F.
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Standards
Preponderance of the evidence (51%)  civil law
Beyond a reasonable doubt  criminal law
“fair probability” – slightly less than a preponderance of the evidence!
o Which means, you can be MORE wrong than right and STILL have probably cause  its not a
weighty standard
Appellate Standard of Review:
“ a substantial basis for concluding that a search would uncover evidence of wrongdoing”
assume substantial basis = 35%; fair probability = 45%
o which means you can have 2 times more chance to be wrong than to be right.
G. Florida v. Harris (2013) (p.94)
 Issue: does the alert of a drug detention dog provide probable cause to sear?
 Facts: In Florida, to demonstrate reliability you had to show evidence of the dogs training, performance
records, experience, etc.
 Supreme court said these demands were inconsistent with the flexible, common sense standard of probable
cause!
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o Rejection of Florida Supreme Court’s “checklist” approach to assessing reliability of drug-detection
dogs
Gates requires “a more flexible, all-things-considered approach”
H. Applying Gates: Problem 2-4 (p. 104):
 Was there probable cause to issue the search warrant?
o Informant provided info regarding an indoor marijuana grow; informed that Thomas had a reputation
within the marijuana community as being a successful producer of two types of plants- one
expensive; informed of the house and DEA found that Thomas had an active gun permit; saw
Thomas standing in the driveway of that house spoking a cigarette at 10:15 am; informant said he
saw Thomas conduct narcotic transactions; (all of the informant’s info was 8 months old; looked up
electricity bills and were indicative of “high” electricity usage- typical for indoor marijuana
cultivation; there were two “out buildings” on the property not visible from the front
 Split the 6th circuit:
 2 said that this was “thin but just above the line” for probable cause (under Gates)
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Dissenting judge said this wasn’t enough
I. Probable Cause Handout:
a. Under Gates: suspiciousness of the conduct: 12 cars going in, driver in for 3 minutes, but no one
hanging out” on the porch + combined w/ informant neighbor  look at the totality of the
circumstances – “fair probability”
b. Aguilar-Spinelli: (1) Basis of Knowledge – woman viewed it, husband heard their conversation; (2)
veracity: she was (according to other neighbors) biased! Discounts veracity so it forces you to
investigate
c. Under Gates, This is probably enough! But in an Aguilar-Spinelli jurisdiction, under these facts, they
want cops to do more. [Note: if the cops’ surveillance is enough then you don’t even need the tip!]
J. “Common Enterprise” Theory
 Maryland v. Pringle (2003)(p.93)
o Held: Under the facts, interference of common enterprise justified the arrest of all passengers
o 1. Relatively small care; 2. Passenger often engages in a “common enterprise” with the driver; 3.
Quantity of drugs (five baggies) and cash ($763); and 4. A dealer would be unlikely to admit an
innocent person who could furnish evidence against him  if you were a drug dealer you would be
careful who you let in your car
o Remember, probable cause to arrest means a sufficient likelihood.
o In allowing the arrests to go forward in this case, they are doing so by making it fact specific.
 Problem 2-11 (p.110):
o Possession of illegal fireworks
o In a car the fireworks were visible; here, everyone said they belonged to the absent driver; no reason
to not let other in who aren’t part of illegal conduct (like in a drug scenario).
o Holding: split! Majority said: NOT enough probable cause; dissent: this was within arm’s reach,
visible, care was not that big.
K. Pretextual Searches
 Whren v. United States (1996) (p.95):
o Rejection of “usual police practices” test
o Objective reasonableness standard; officer intent irrelevant
o This was a plain clothed undercover cop  not typical for them to do traffic violations.
o If they were generic law enforcement, this would all seem fine. The only issue here is that these cops
seemed to be looking for something.
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o  There is probable cause if reason to believe traffic violation.
 The Cop violated the D.C regs; it exceeded the scope of his authority under LOCAL law
which is separate from the 4TH Amendment analysis!
 Remember: subjective intentions of cop plays no role in this analysis!
o When probable cause has existed, the only cases in which we have found it necessary actually to
perform the “balancing” analysis involved searches or seizures conducted in an extraordinary manner
(e.g. seizure by means of deadly force  see Tennessee v. Garner, unannounced entry into a home,
entry into a home without a warrant, physical penetration of the body)
o The making of a traffic stop out of uniform does NOT qualify as such an extreme practice , and so is
governed by the USUSAL RULE that probable cause to believe the law has been broken “outbalances”
private interest in avoiding police contact.
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DevenPeck v. Alford (2004) (p. 101):
o Cops arrested defendant for violation of privacy act, but there was no probable cause for this but had it for
other arrest
o An arrest is constitutional when there is probable cause to believe that the arrestee has committed an
offense, regardless whether it was the offense that he was actually arrested for
o Important: must have been aware of facts for the other offense at the time of arrest for it to be valid; look
to see if objectionably reasonable to arrest person for other offense
o ex- cops are aware of A, B, and C and arrest person for offense 1; however, offense 1 requires A, B, C, D
and D is not present here; arrest still ok if offense 2 requires A, B, C (must be aware of A, B, C at time of
arrest for arrest to be valid)
o Held: An arrest is constitutional where there is probable cause to believe that the arrestee has committed
AN offense (not necessarily the offense in question).
THE WARRANT REQUIREMENT
You do not need a warrant to arrest someone in a public place. [United States v. Watson (1976) (p. 109) (not
assigned)]
Absent an emergency, you need a warrant to arrest someone in their home.
What if it is the home of a third party? (See below)
Altwater v. City of Lago Vista (2001) (p.131)
o ISSUE: Does 4A prohibit warrantless arrest for minor offense, here a seatbelt violation punishable
by a fine of $25 to $50?
o HELD (Souter): NO
o 1.Equivocal common-law history; accords with American colonial and post-colonial practices
o 2.Consistent with Whren (pretextual searches)  not supposed to care why!
o 3.Need efficient rules; police discretion serves “important societal interests”
o 4.Cops must make split-second decisions
o 5.“Prompt” hearing is available to challenge probable cause
o
Dissent (O’Connor): “potentially serious consequences for the lives of ordinary American;” “unbounded discretion”
introduces a “grave potential for abuse.”
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Virginia v. Morge: What officer did was unconstitutional under VA constitution. You can still sue under
VA law, but no impact under federal law. Simply because it was constitutional in VA doesn’t mean its
unconstitutional under the 4A.
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Maryland v. Garrison (1987) (p.150): (reasonable mistakes)
o Warrant was valid when issued: validity assessed by information officers “disclosed, or had a duty to
discover and disclose, to the issuing magistrate;” mistaken belief was reasonable
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o Execution of the warrant was reasonable: officers’ failure to realize the overbreadth of the warrant
was understandable and reasonable
 The Warrant said third floor of 2036 Park Avenue  this was reasonable to think the 2 apartments
were won apparent even though they erroneously discovered evidence
o Note: If the warrant was invalid when issued then everything falls! The execution would be invalid
too; Could be invalid when issued fi they purposely included both apartments.
o Takeaway: neutral judge; probable cause; particularized warrant; properly executed
 If your execution of the warrant exceeds your scope, but the erroneous warrant allowed you to, then
it insulates the evidence that would otherwise have been suppressed.
A. Falsehoods in Warrant Applications
 Franks v. Delaware (1978) (p.150)
o To invalidate the warrant, defendant must establish by a preponderance:
 1. False statement made knowingly and intentionally, or with reckless disregard for the truth;
 2. False statement is necessary to probable cause finding
o Note: Defendant’s burden = preponderance
o Facts A,B,C,D  If A,B, or C establish probable cause then it doesn’t matter that D was a lie. False
statement had to be NECESSARY to have P.C.
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Applying Franks and Garrison: Problem 3-12 (p. 176):
o Dog one comes and shows interest and there is some probable cause. The officers obtained a warrant. By
the time the second dog entered, the warrant had already been issued. The officers did not say anything
about the second dog’s sniff. There is no probable cause when dog 2 comes. Cops still executed the
warrant
o Dog sniff #1- nothing misleading here; but interest is not the same as full alert
o Dog sniff #2- might get rid of probable cause; already issued warrant, though
o Comparison to Garrison: Cops stopped search after they realized it was 2 apartments. Here, are they
obligated to stop and inform before the issuance of the warrant?
o Holding: an omission can be a falsehood; found that this was necessary for probable cause. @ time of
warrant execution, they knew they had no probable cause. Evidence suppressed!
B. Anticipatory Search Warrants:
 Anticipatory Warrants: probable cause to believe contraband WILL be (versus is) present at the place to
be searched
 United States v. Grubbs:
o Facts: D purchased a videotape containing child pornography from a Web site operated by an undercover
postal inspector. Arranged a controlled delivery of package containing the videotape to D’s residence;
warrant issued and said that “Execution of this search warrant will not occur unless and until the parcel
has been received by a person and has been physically taken into the residence.”; D was not provided the
search warrant until roughly 30 minutes into the search and it did not include the supporting affidavit that
explained when the warrant would be executed (the triggering condition)
o At time of execution there was probably cause because the package was there, but at time of issuance
there was no probable cause because triggering condition did not happen yet
o “triggering condition:” requires probable cause that it will occur and, upon its occurrence, contraband
will be found on premises
o No need to incorporate into warrant the affidavit containing triggering condition
 contra: information describing the place to searched and the items to be seized [Groh v. Ramirez
(2004) (p. 155)]
 items for probable cause do not need to be stated because already vetted by judge
10

Side notes: The Supreme Court has never required cops to present warrant to the homeowner prior to
search!  after seizure, copy of warrant and list of what was seized.
C. The “Particularity” Requirement:
 Andresen v. Maryland (1976) (p.150):
o Warrant authorized seizure of particular items “together with other fruits, instrumentalities and evidence
of crime at this time unknown”
o Crime at issue: false pretenses with respect to Lot 13T
o Held (Blackmun): Warrant sufficiently particularize
o
Dissent (Brennan): “the question is not how those warrants are to be viewed in hindsight but how they were in fact viewed by
those executing them.”
o Note Warrant validity steps: (1) Have to affirm the facial validity of warrant; (2) if it is valid, then look
at the execution of warrant.

Example- Particularizing and Properly Executing a Warrant
o A powerful stock broker is found murdered in his swanky New York apartment. Forensic evidence
establishes that the victim was grabbed from behind and fatally stabbed in the neck. Subsequent police
investigation focuses on his top associate, who stands to gain from the murder in that he will
presumptively fill the void left by his boss’ departure. When it is determined that the associate has lied
about his whereabouts at the time of the murder, and that he had in fact seen the victim that same night,
the police obtain a warrant to search his apartment for “clothes and any other items that tend to establish
the elements of the crime.”
o In executing the warrant, the police officers discover, in a desk drawer, financial documents requested
by the victim detailing all trades made by the associate over the previous two-year period. The
documents were delivered only days prior to the killing. The officers seize these documents.
Subsequently, the police discover through interviews with his former employer that this associate, who
was a star at the victim’s firm and had realized millions of dollars of profits, had been fired from his
previous such job after five years of lackluster trading results.
o Does the warrant satisfy Andresen v. Maryland?  yes. If you specify the crime, you can put stuff
underneath it that can be vague if it is reined in on the particular crime.
o Was the warrant properly executed in that the officers complied with its terms and limitations?  No!
Motive is NOT an element of murder. Note: motive and intent are NOT the same thing!

Example- Probable Cause & Particularity Handout:  REVIEW!
o When the warrant was executed, team of officers seized a boatload of evidence and vast majority of it
was returned to him as not relevant to the crime. The issue was the third item of how they got the
notebooks.
o Cali Court: rejected Anderson under the Cali constitution. Counts against particularity if the execution is
overbreadth! Struck 2 and 3 clauses.
o There was probable cause to search residence and arrest him but no probable cause to search notebooks.
o The evidence from notebooks was suppressed  didn’t know anything about him to suggest that he kept
these notebooks.
D. The “Knock and Announce” Rule:
 Rule: officers must knock and announce their presence AND their purpose before forcibly entering the
premises to execute search warrant.
 Wilson v. Arkansas (1995)(p. 159)
o Majority (Thomas): The common-law knock-and-announce doctrine is part of the 4A
reasonableness inquiry, but application of the rule need not be inflexible.
 Richards (1997)(p.163)  When you don’t need to knock and announce
o Not necessary if dangerous; futile; or would inhibit the investigation
11



Ramirez (1998) (p.164): irrelevance of damage to property  could be a civil claim for recovery
Banks (2003)(p.165): 15 to 25 seconds is enough of a wait in a SMALL apartment!
Layne (1999) (p.166): “media ride-along” in executing arrest warrant violated 4A
SEARCHES WITHOUT WARRANT
ESCAPIST
 E xigent circumstances
 S earch Incident to Arrest
 C onsent
 A utomobile
 P lain view
 I nventory
 S pecial Needs
 T erry Stop and Frisk
 For each exception, it is important to remember its justification, the evidentiary showing necessary to invoke
it, and the scope of the search it authorizes.
Search Incident to Arrest

2 justifications for warrantless searches incident to arrest:
o Officer safety
o Prevent destruction or concealment of evidence

The Trio + Riley: Where can you search incident to arrest:
o On the person (Robinson)
o How we define the areas the cop can search (Chimel)
o Vehicle search controversy resolved in Gant
o [– Riley case dealing with cellphones]

Chimel v. California (1969) (p.182)
o Crime: burglary of a coin ship
 “Searchable” area incident to arrest
o Yes: area within arrestee’s “immediate control” (wingspan)
 Access to weapons; destructible evidence
o NO: rooms other than that in which the arrest occurs
o NO: closed or concealed areas within the room itself that are outside the wingspan

Compare this outcome back to Altwater case: cop arrested her for not buckling in seatbelt; does that mean
you can “Chimel” someone for not buckling their seatbelt?
o Arrests are fraught with peril to the officers
o If the fact of the arrest introduces inherit danger to the officer, then the standards that follow are
logical!

United States v. Robinson:
o Arrested for driving without a license; cop was not scared
o Point 1: officer is always at a peril
o Point 2: irrelevant that cop wasn’t actually worried
o 2 justifications:
 officer safety and prevention of destruction or concealment of evidence
12
o Held (Rehnquist): authority to search not dependent on probability of finding weapons or evidence in a
“particular arrest situation”
o [Note: if we made a rule that required the officer to proffer facts to search, it could put officers at harm;
officers would have to make split-second decisions; court wants a balance; other concern would be this
being litigated to much]
o
Dissent (Marshcall): search of package must be justified by safety or evidentiary concerns; even if seizure of package was
justified, searching was not (if you wanted to search it later, get a warrant)
o  the majority wanted a bright line rule!


Problem 4A-5 (Applying Chimel and Robinson):
o Facts: Found terrified woman who claims she was forced to have oral sex. She said the suspect was in
the basement, a fat white guy in his 20s, and the incident happened in the direction of a location.
Neighbors said a guy fit that description. Officers forced entry into the house and located the guy who
matched the description. They arrested him. At the hospital, they swabbed his hands for blood and did a
genital examination.
o Issue: If we assume that exigent circumstances justified the warrantless entry, was the search of D’s
genitals and genital area valid incident to his arrest under Chimel and Robinson
o Holding: You could have restrained him and asked for a warrant to examine his genitals. Genital
searches require an exigency if you don’t have a warrant (e.g. if you can prove that the evidence would
truly dissipate)
o If what the officers did was reasonable then that is enough.
Knowles v. Iowa (1998) (p.203):
o Issue: constitutionality of IA’s “search incident to citation” law
o Held: Robinson does NOT apply where citation issued in lieu of arrest
 But remember: (1) officers’ plenary authority to make a custodial arrest for very minor offenses
(Atwater) and (2) officer’s subjective intent to arrest only so they can a search incident to arrest is
irrelevant (Whren).
A. Searches of Vehicles Incident to Arrest
 New York v. Belton (1981) (p.218-220):
o 1 officer; 4 arrestees (separated during detention)
o initial contact inside the vehicle; arrests and detentions made outside
o Reasoning:
 Arrestee Belton was “recent occupant” of vehicle
 Contemporaneous search (not remote in place or time);
 Searches have to be substantially contemporaneous; it is okay if you wait until you bring him to
the stations, provided it is unbroken from chain of events; arrest to movement in cop car to
search at station
 Search of “container” in interior cabin only (“immediate control”)
 NO TRUNK!! NOT IN IMMEDIATE CONTROL
o

Thornton v. United States (2004) (p. 219):
o Facts different from Belton: One arrestee (narcotics possession) and one officer; Initial contact outside
the vehicle; Arrestee handcuffed inside squad car at time of the search
o Belton still governs- can search car
o

Dissent (Brennan): Court’s reasoning re arrestee’s control over the vehicle “adopts a fiction.”
Scalia (concurring): Belton should apply only where reasonable to believe evidence re arrest may be found in the vehicle
(here, arrest for possession with intent to distribute drugs).
Arizona v. Gant (2009) (p.205):
13
o Initial contact and arrest 10-12 feet from vehicle; crime: driving with a suspended license; Gant
handcuffed in back of squad car when vehicle searched
o Held: Can only search car incident to arrest if at time of search:
 Arrestee is unsecured and within reaching distance of vehicle [Chimel rationale]; OR
 Reasonable to conclude evidence relating to crime of arrest in vehicle [non-Chimel rationale - nod
to Scalia’s concurrence in Thornton].

Gant Issues:
o Chimel: immediate control at time of arrest (Alito) or search (Stevens) – see p.175 n.12, first sentence
o Can Gant be gamed by law enforcement? [Scalia is worried.]
o Hypo: traffic stop leads to arrest for violation of “open container” law. Under
Chimel/Robinson/Belton/Gant, what and where can the arresting officer search incident to arrest? (Driver
is alone in vehicle.)
 If person in the car, can search anywhere- Chimel- entire car in reaching distance

Problem 4A-3 (p. 249)- Auto Search Incident to Arrest:
o Was the search of the automobile permissible incident to Heather’s arrest? Can they go back and search
the trunk of the car after she was placed in the cop car? Note: She moved the seats down, opening the
trunk herself! This could have been find under Chimel, but the police secured her BEFORE searching the
car.
o Here, under Gant while she was in car, you could have searched all of it BUT b/c she was secured, you
couldn’t search.
A. Searches of Cellphones
 Riley v. California
o Issue: searches of digital info on cell phones (“smart” and “flip”) incident to arrest for drug and/or
firearm offenses
o Held (8-1): Search not ok under Chimel/Robinson
o  “Privacy comes at a cost” (After this case, there will be evidence that will be forever lost!)
o Majority opinion
 Officer safety- Digital data vs the phone itself; can open flip phone to look for weapons or can
confiscate it but nothing more
 Destruction of evidence: “remote wiping/geofencing” and “data encryption” when cells “lock”
concerns; but other alternatives for law enforcement  see pg. 225
 This still allows for exigencies: if you have reason to believe that there will be some kind of
ambush, kidnapping, amber alert circumstances.
 “Qualitative” and “quantitative” privacy concerns re cell phones versus other “effects”; much more
privacy interest in phone
o Applying Gant? - Search okay if reasonable to conclude evidence relating to crime of arrest in vehicle

Hypo: arrest for reckless driving → searches of the person ok (Robinson); vehicle-only ok if in it
(Gant); cell no  can get warrant to search the texts to see if texting while driving
o Warrant not necessary if exigent circumstances exist in given case; bomb or hostage
o Alito (concurrence): open to legislation differentiating categories of info on cells
 Hypo: arrestee has phone bill in coat pocket with incriminating long-distance number; same number
in cell log  cell not allowed
 Incriminating photos in wallet and on cell  cell not allowed

Problem 4A-1 (p. 248):
o Ok to open up flip phone to see if razor blade in there; wallpaper was lawfully visible; took picture
because in plain view – his subjective intent is irrelevant
14
o If screensaver caused exigency  no warrant needed. But if not, a warrant would be needed based on
probable cause.
o What if he doesn’t know whose phone it is? Can still search for danger
o Anything you can visibly access when determining whether the phone is a weapon is fair game –
(pictures, incoming calls, etc.) Beyond that, you need an exigency
o Anything further would violate Reilly

Birchfield v. North Dakota (2016)
o Issue(s): Breath and blood tests incident to arrest
o Majority (Alito): breath tests ok; blood tests not ok as they are more intrusive
 Therefore, can give criminal penalty for not submitting to breath test, but not blood test
 On balance, the state interest is great and the breath test is not too intrusive; need a warrant for blood
test
 May be able to argue exigency and in that case, may not need warrant for blood test.
o Sotomayor and Ginsburg: none

Washington v. Chrisman: Issue with accompaniment
o Facts: Overdahl suspected of underage drinking; ID in dorm room; cop told him he must go with
him; Overdahl says “OK”; Cop saw marijuana seeds and pipe from doorway of room; entered;
Mirandized; further consensual searches uncover in excess of 40 grams of marijuana and LSD;
felony charges against D and roommate
o Holding: Officer can stay “at arrestee’s elbow” to ensure his own safety and the “integrity of the
arrest.”
B. Arrest Warrants for Home of Third Party
 We know that:
o No warrant is needed to arrest in public place (Watson)
o Absent emergency, need warrant to arrest someone in their home (Payton)

Steagald v. United States
o Issue: Is arrest warrant sufficient to arrest someone in home of third party?
o In Steagald situation, three interests at play: law enforcement’s; arrestee’s; and third parties’.
o Need search warrant (and arrest warrant) to arrest in home of 3rd party; additional burden on cops
outweighed by 4A interests of affected parties.
o Need probable cause the person is in the third party’s home
o So, for your own home, you need an arrest warrant; or someone else’s house, you need a search
warrant
o Hypo: if you opened a closet to find fugitive, but find contraband in plain view instead, there was no
officer wrongdoing, then there is no reason to suppress this evidence.
EXIGENT CIRCUMSTANCES

Three types of exigent circumstances:
o Hot pursuit of fleeing felon
o Imminent Threat to Persons or Property
o Evanescent Evidence (evidence that may be dissipated or destroyed with time)
A. Hot Pursuit
 United States v. Santana (p. 247):
15
o Woman standing in doorway of house when cops arrive; retreats into vestibule of house; cops follow her
and arrest her there
o Hot pursuit assumes person starts in open fields
o She was more out than in, so in public and open fields
o Holding: No 4A violation

Warden v. Hayden (p.256);
o Robbery with someone running down the street; cops chased him in his house to get him; searched –
toilet tank (firearms); mattress (ammo); bureau drawer (ammo); washing machine (clothes)
o Cop said looking for “the man or his money”  officers can only be looking for the criminal and the
weapons that could harm the officers. Burglar could have placed the weapon anywhere in his house.
o It is okay to look for the fleeing person and to clear the premises of any weapons so it was okay when
the cop looked in places where the weapons could be found.
o Holding: cops acted reasonably when they entered the house and searched for armed man
B. Imminent Threat to Persons or Property
1. Persons: “Emergency Aid” Exception
 Brigham city v. Stuart (2006)(p. 259):
o Warrantless entry into residence after witnessing an altercation that involved 4 adults and 1 kid
o “objectively reasonable” belief that persons seriously injured or threatened with such injury; ongoing
violence within the home
o Is there a reasonable basis for believing that someone in the home is in need of aid or assistance?
o Holding: No 4A violation here.
o Subjective intent of cops does not matter

Michigan v. Fisher
o chaos; blood inside and outside; belligerence; injury not serious or life-threatening
o The injury was not serious or life-threatening
 Cops can speculate. It was reasonable that Fisher had hurt himself or that he was or did hurt
someone
 Officers don’t need to know everything about the circumstances

Applying the “Emergency Act” Exception – Problem 4B-8 (p. 275):
o Facts: officers came because a call re: a domestic dispute; She denied that there was a man (even
though there clearly was), she was red, she was previously yelling, officers found drugs inside home
when they were talking to her.
o Held: insufficient evidence of domestic violence here. Didn’t have sufficient evidence of a domestic
fight or that one would occur.
2. Property
 Michigan v. Taylor
o Warrantless entry into burning building to put out fire and investigate its cause
o Arson investigators can go in without warrant to investigate cause
C. Evanescent Evidence: - Evidence that could be dissipated or destroyed with time
 Kentucky v. King (2011) (p.260):
o Cops smelled marijuana, knocked and heard people moving around inside which led them to believe
the evidence was being destroyed; kicked the door down
o Holding: No 4A violation; the knocking did create the exigency, but this is ok
o Majority (Alito): “police created” exigency created by officers’ reasonable conduct where no “actual”
16
or “threatened” violation of 4A.
o Officers may respond to exigencies created by their own conduct provided they do not gain entry
by means of an actual or threated 4A violation
o Bad faith on part of police officer does not matter; neither does reasonable foreseeability of police
conduct or ability to have secured a warrant

Illinois v. McArthur (2001) (p. 267)
o Re-entry into trailer by owner/occupant was prevented for 2 hours while cop went to get warrant
o Holding: No 4A violation
o Good reason to fear that, unless restrained, the Defendant would destroy the drugs before they could
return with a warrant
o There was probable cause that there were drugs inside the trailer
o This was an exigency because the drugs could have been destroyed
o Invasion was pretty minor.
D. When Exigency does not justify a warrantless search:
 Welsh v. WI (1984) (p. 258) – entry into home to arrest for DUI (compare to reasoning in McArthur); not
serious offense- non-jailable in jurisdiction; no threat to public safety
o Courts mindful of the gravity of offense
 Vale v. LA (1970) (p. 266) – search of entire house following arrest for drug distribution on front steps of
residence
 Missouri v. McNeely (2013) (p. 269) – nonconsensual, warrantless blood draw of suspect’s blood in DUI
context
o Such an intrusion
o Presumptively need warrant

Problem 4B-10:
o There was a horrific car accident; they had a suspect; Officers were speculating that Michal would need
surgery and this contaminate the evidence
o 11 officers were dispatched to t scène and 2 of them drove him to hospital. Why didn’t want of them go
to apply for a warrant?
o Here, there were judges all over the place and no really compelling circumstances to no do so
o The Government needs the warrant unless government can demonstrate that it was impractical. – it
wasn’t here
o Birchfield: can criminalize someone’s refusal of a breathalyzer text, but that doesn’t mean you can get a
blood test without a warrant.

Problem 4B-9 (p.276)- Exigent Cir. Hypo:
o Did exigent circumstances justify the entry and/or the search of the silver box?
o Once they caught the guy the exigency was over
o Entering house ok, but once they found him it was over
o They knew no one else was in the house, danger to women over
o They had probable cause the enter in “hot pursuit” but no right to pen box; IF officers still hadn’t
secured the men, then looking for the weapon in the room adjoining the room they were found in, it
would have been a different result.
o Here, cops could have just secured the box and waited for a warrant.
AUTOMOBILE EXCEPTION
17





3 groups of Vehicle and Container cases:
o Contraband in vehicle (no container)
o Contraband in container (no vehicle)
o Contraband in container WITHIN a vehicle
Note: the search incident to arrest doesn’t let you search the trunk BUT for the automobile exception, you
CAN search the trunk
Vehicles’ “ready mobility”; lesser expectation of privacy due to pervasive regulation
Remember- still need probable cause that contraband will be found inside vehicle
It gives officers the right to search the cabin trunk and all closed containers that might contain contraband
A. Contraband in Vehicle (no container)
 Chambers v. Maroney (1970)
o post-arrest search of vehicle at station house
o men arrested for robbery of gas station; after arrested cops believed guns and money in the car; searched
and found contraband
o OK- had probably cause to search car  the standard for the auto exception is ALWAYS PROBABLE
CAUSE!
o Does not matter that it was done later on, time does not matter, because probable cause still exists (was
dark where they were, so took to station)

Texas v. White (1975):
o Here, cops took car to station to search even though it was not impracticable to conduct search at scene
o No 4A violation; still OK
o OK not to search car at scene

California v. Carney:
o mobile home used on highways or “readily capable of such use;” “objective observer” would consider it
a vehicle, not a residence
o falls within scope of exception, so no warrant needed
 was readily mobile
o no distinction between vehicles: application of exception does not turn on other uses of vehicle
o Note: See footnote on page 287!  if this trailer was in an RV park hooked up to utilities then likely it
would be treated differently.
o Some states have rejected Carney and look at motor homes as more of a home.

Labron/ Kilgore (1996) (p. 290): Can ALWAYS search without warrant if vehicle is readily mobile and
probable cause re: contraband
o Cars are regularly regulated so they enjoy less privacy

Florida v. White:
o when the car itself is contraband (as opposed to its contents)
o Had PC to believe car subject to forfeiture; seized car and drugs discovered in inventory search
o Holding: No 4A violation; seizure ok under vehicle exception
o Probable cause to believe that the car is an instrumentality of the crime

Problem 4C-5 (p. 314):
18
o Man needed his van repaired and goes to a tow shop; off duty cop hears him say that he could not afford
to pay for it to be towed; cop got suspicious when he locked doors; man turned over keys to mechanic;
cops then search and find drugs
 There was probable cause because of his persistent effort to close door, failure to answer
questions about his job, and he altered the care to make space between the ceiling and shell.
o No 4A violation; auto exception applies
o Ok even though not operating
o Court seems to be reluctant to say car is no mobile; cars are inherently mobile
 The car was temporarily immobilized, but it could be operable in a few hours. That was
enough to be “readily capable”
B. Contraband in Container (no vehicle)
 United States v. Chadwick (1977) (p. 291)
o Should the rationale of the automobile exception apply to movable luggage?
o People had footlocker and were placing it in trunk; agents took locker and looked in it
o 4A violation- auto exception should not apply to luggage
 very high privacy expectation in luggage; no decreased level of privacy like in car
 not subject to regulations like cars
 primary function or storage of items – luggage is usually opaque. It is not for people to look inside,
unlike a car.
C. Contraband in container w/in a Vehicle:

Sanders (1979) (P. 299):
o Cops had probable cause to believe pot in suitcase in car; waited until drove away with it in the car
o 4A violation no justification to extend doctrine to luggage here solely because in car
o probably cause was for luggage, not car  eventually overruled !!!


Robbins (1981) (p. 299): probable cause re: contraband in opaque, non-luggage container
Ross (1982) (p. 300): probable cause re contraband in care; auto search turns up a container with drugs
o NOTE- If you have probable cause to find a bloody knife in the car and you find it immediately, you
must stop. However, if it was in the trunk, you can start in the glove compartment and if you see drugs,
you can rightfully seize it because you had a right to search. You can keep looking until you find the
knife. Anything you find along the way is fine. Once you find it, you must stop.
o Search ok- no 4A violation- cops had p/c to search vehicle whereas in Sanders only had p/c for container
 Sanders- Ross issue: problems with lower courts and whether probable cause went to the car or the
container

California v. Acevedo 1991 (p.300)  resolves Sanders/Ross issue!!
o Here, probable cause goes to the container
o New rule: Police may, without a warrant, search an automobile and the containers within it
[wherever] they have probable cause to believe contraband or evidence is contained.
o Sanders is overruled. No effect on Ross or Chadwick.
o Note: probable cause was for ONE container, when they find it, they have to stop searching, but if you
find other contraband during the search for the container, then that is fine.

Wyoming v. Houghton:
o Cop pulls someone over for tail light broken; found a syringe and searched the car; searched passenger’s
purse – (purse was left inside)
o Where there is probable cause to search a vehicle, does the automobile exception permit a warrantless
search of a passenger’s personal belongings inside the vehicle?
o YES- OK; purse becomes effect of car 
19
o
o
o
o
Acevedo tells us you can search car and its containers within in if you have probably cause
Cannot search body (United States v. Di Rey)
Unclear if purse on shoulder would be attached to body
Note: Houghton is an evidence-based exception of whether there is reason to believe there is contraband
in the car.

Problem 4C-6 (p. 315):
o 1. Ordered to leave purse inside when there was no probable cause yet  [This was the situation in the
fact pattern and the Kansas Supreme Court said this was NOT okay.]
o 2. Voluntarily left it inside; never asked to retrieve it  This was the case of Wyoming of Houghton
o 3. Voluntarily left it inside; asked to retrieve it:
 a. Before officer found crack pipe  NO, cant search.
 b. After the officer found crack pipe  Yes, can search
o If the man is arrested and unsecured in car or within reaching distance of care and the purse is inside 
Chimel applies.
o Note: if officer feels for his safety, then cop can search. This is an independent ground for searching.

Problem 4C-1 (p. 312).
o Is a bicycle more like a car (Acevedo) or luggage (Chadwick)?
o Holding: bike is like a car not like luggage!
 Bicycles are used to travel like a car and also have some regulations

Problem 4C-4 (p. 313):
o Cops looking for man because he violated his restraining order terms; went on pathway via gravel
pathways and kept searching for house; eventually found car 100 feet away; they found a van near car;
saw cord in van knew someone living there
o The government argues that the search of the vehicle was justified under the automobile exception or, in
the alternative, as a search incident to arrest (Belton/Gant). Does either theory (or both) work?
o Car was no readily mobile; had flat tires, no registration
 Court said not mobile- totaled
 Even so, would still need probably cause; probably not
o No search incident to arrest, because arrest not valid; They arrested him outside the van and handcuffed
him; then, no right to enter and search the car at that point.
 When you arrest someone, you could do a protective sweep for PEOPLE and if in doing so you
come across contraband then that’s fine but that didn’t happen here.
INVENTORY SEARCHES
A.




Justifications
Protect owner’s property
Protect police against lost or stolen property claims
Protect police from potential danger
PRETEXT MATTERS HERE!!
B.



Two types of Inventory Searches:
Impounded Vehicles (Opperman (1976); p. 319)
Arrestee booking process (Lafayette (1983), p. 328)
Query: What is the relationship between what is reasonable and what is the most protective of the
subject’s fourth Amendment rights?
o Majority vs. Justice Marshall in Opperman; Bertine
20
C. South Dakota v. Opperman:
 Routine practice of impounding and inventorying; As part of the community care taking function,
cops can seize and remove cars from streets; to protect property, protect cops against claims, and protect
cops from danger
 Search was incident to the caretaking function of the local police to protect the community’s safety
 Also, no evidence this was pretext for another motive
 Holding: No 4A violation
 Note: under S. Dakota law, unconstitutional to search glove compartment, but no issue under federal law

Dissent: the law of state – police doesn’t’ have obligation beyond inventorying objects in plain view and locking the car.
D. Illinois v. Lafayette
 Facts: Police were called out to a theater because of an altercation with the theater manager. They
arrested the D and took him in and inventoried and found pills in his shoulder bag
 Searching the bag to make sure there is nothing in there that is dangerous; that could dissipate safety risk
by simply locking this bag away.
 Holding: no 4A violation
o By searching the bag, they fulfill the justifications regardless of whether a less intrusive
alternative exists
o We don’t care that the search wasn’t optimally protective we just care that it was reasonable b/c:
efficiency, orderly process, consistency, etc.
o Only matters that what they chose to do was reasonable
 It is entirely proper for police to remove and list or inventory property found on the arrestee
E. Florence v. Board of Chosen Freeholders (2012) (p.331):
 He was inventory searched twice in 7 days after he was arrested for a warrant on a traffic violation
which he actually already paid
 Everyone subjected to same invasive procedure regardless of crime
 Holding: no 4A violation
 Deference to correctional officials
 Differentiation not workable
o need for “readily administrable rules”
o seriousness of offense is poor predictor

Dissent (Breyer): would require reasonable suspicion for minor, non-drug-related arrests
F. Colorado v. Bertine (1987) (p. 334):
 Pre-impound inventory at roadside
o 1. Reasonable regulations administered in good faith
o Search not in bad faith or as pretext for investigatory police motive
 Note: interesting how here subjective intent matters!
o Discretion is okay if exercised according to “standard criterion and on the basis of something other
than suspicion of criminal activity:
G. Why Pretext Matters in Inventory Searches:
 If person is arrested and outside of car, cant search her car! BUT the inventory search can be used as a
loophole! That’s why if there was bad faith/ a pretext, then the inventory search will be NO good.
H. Florida v. Wells: discretion regarding opening closed containers whose contents aren’t visible from
outside is okay
I. Problem 4D-10
21




Facts: pulled over for not wearing seatbelts and speeding; consent to search car was refused; arrested
and car was impounded. There is clear investigatory motive
Under Atwater, custodial arrest was constitutional (note: pretext as to the arrest doesn’t matter!)
With respect to inventory searches, search can’t be in “bad faith” or as a pretext for “investigatory”
police motive
Court split! The dissent said: the arrest was okay, the pre-textual impound was not! [professor agreed
with the dissent]
J. Problem 4D-9
 Facts- Officer Burns saw a car driven by Timothy pull away from a residence that was “fairly well
known for drug activity.” There were no license plates but he knew past individuals who left the place
were stopped and had drugs. He gave his Social and verified that it was his car but the officer noticed
that the pupils of the other passengers were dilated and under the influence of drugs. He summoned a K9 unit and informed Timothy that he was free to leave but his car would have to remain at the scene
because it lacked a license plate. Tim refused to give consent after searched for a car search. Burns
asked Tim about a contact lens case he noticed. There was a liquid material with meth in the middle,
proven after a binary test. Burns arrested Tim. The dog came 20 minutes later to the scene and the
officer started to search the scene. He found a purse in the front passenger side where he saw a glass
pipe
 OK to pull car over- no license plate
 Notice girls have dilated pupils and calls for canine unit
o Had to wait 20 min for dos to arrive but during stop so ok
 Asks to search car and tells dogs are coming
o Coercive? Maybe
 Consents to search contact lens case
 Cops did a test on it- ok binary test under Jacobsen; had drugs
 Arrest him because of drugs
 Then search the car
o Incident to arrest? In custody and secure
o Auto exception? Ok- blob, dilated eyes, high drug area; do not care about timing for this
exception
 Ordered girls out of car- OK
 No contraband in car, but searched girls purse and finds glass pipe- ok (Houghton); bag effect of car
(Acevedo)
 Cell phone- court says ok but this was repudiated by Reilly later (this predates Riley).
 Camera?  Camera is kinda in between a purse and cellphone
Consent Searches
A. General Cases:
 Schneckloth v. Bustamante (1973) (p. 347)
o Consent must be voluntary:
 Not the product of duress or coercion
 Totality of the circumstances
 Informing of the right to refuse consent vs. promoting the community’s “real interest in encouraging
consent” (compare 5a Miranda rights to silence/counsel)
 As a community, we have an interest in encouraging consent because of finding evidence of a
crime by consenting. Court is motivated by the fact that they don’t want people to say no.

Florida v. Jimeno (1991) (p. 361)
22
o Objective reasonableness: What would a reasonable person have understood by the exchange between the
officer and the suspect.
o Scope of consent rests in the hands of the consentee based on the objective reasonableness of what the
scope of that consent was.
B. Traffic Stops and Consent Searches
 Ohio v. Robinette (1996) (p.367):
o Held: Ohio Supreme Court’s “first tell then ask” rule not necessary to validate consent to search at
conclusion of traffic stop
o Facts: pulled over for speeding, gave him a warning & gave back his license (but didn’t clearly signal the
end of the traffic stop), then asked for consent to search car
o Reasoning: if they don’t have to tell you that you have the right to refuse consent, then they don’t have to
tell you when traffic stop is over.
o

Dissent (Stevens) (not in book): continued detention after stop concludes, as her, is unlawful.
Problem 4E-4 (p.387):
o Agents Stephens and Darrell received information that Harry owed money and was a drug trafficker.
They watched his apartment but to no avail. They asked for consent at his door while dressed in plain
clothes since they lacked probable cause. Stephens said that he received an anonymous tip claiming that
there were drugs/bombs in the apartment. He asked to look around even though he had no reason to
believe there were bombs in the apartment. Harry did not answer and Stephens said that every time they
have a threat like this, they investigate it and see if there is any threat or danger to the community. Harry
did not know if he could give consent since it was his girlfriend’s apartment. Stephens said he could.
Darrell said not to worry since they had bigger fish to fry. Harry then gave the agents permission to
search the apartment and Stephens found a loaded handgun in the wall under a sink
o Did Harry voluntarily consent to the search of his apartment?
o 10th Circuit Held: This was coercive. This is just too much (too extreme).
We are more worried about coercive effect than about the lie itself
C. Authority to Consent
 “Actual” authority to consent  mutual use by persons having joint access or control for most purposes.
(United States v. Matlock (1974), p 358)
o If boyfriend and girlfriend live together, either can give consent
o If roommate in non-intimidate relationship, there are common areas in which both have joint access
to; this one can give consent to search common area
 “Apparent” authority to consent: An officer’s reasonable though erroneous belief that the consenting
party had authority over the premises [Illinois v. Rodriguez (1990), p. 378 – Relevance of Maryland v.
Garrison discussed here].
 Examples:
o Out of Matlock comes the idea that if you share a residence, any one who lives in that residence can
give consent to the common areas (shared areas)
o Your partner (who you share a room with or are always there) can consent
o Your parents (even if you are an adult) can give consent
o Non-intimate roommates- areas that are obviously kept private, can’t give consent, but things in plain
view/shared space in room in fair game.
 Illinois v. Rodriguez:
o Girl gave officers the belief that she lived in apartment; gave them key, but stopped living there; had
no belongs there (no actual authority); Went in, found man and drugs in plain view
o Reasoning: Since the authority was reasonable as to the consent, evidence isn’t suppressed 
“apparent authority”  just as good as actual authority.
23

Note: you have a privacy right in a hotel room. A hotel guest can consent to a search.
D. Disagreeing cotenants
 Georgia v. Randolph:
o Co- occupant is present and expressly refuses to consent
o Holding: if one person present and refused consent – he wins
 “widely held social expectations” an “commonly held understandings(s) about the authority of coinhabitants
o

Fernandez v. California (2014) (p.376):
o Issue: objecting party NOT present at time of search
o Held (Alito): Randolph does not govern
 Removal of objector was “objectively reasonable”
 Subjective intent/improper motive is irrelevant
 Recasts Randolph’s “widely shared social expectations” standard to their advantage
o You’re only safe if you’re present to object. Cops can come back later when you’re not there. Refusal
expires the moment you walk out of the premises
o If the roommate is in shower, do you need to ask roommate for consent? Nothing suggests you have to.
Must be present at the door actually objecting
o

Dissent (Roberts): Widely held social expectations never used; Inconsistency with false friend cases; Holding might endanger
victims of domestic violence  majority responds that if there is a danger of harm, cops can enter the home. (Threat doesn’t
need to be life-threatening)
Dissent (Ginsburg): Shrinks Randolph “to petite size”
Problem 4E-8 (p.389) (applying Bustamonte, Matlock, Rodriguez, Randolph and Fernandez):
o Add the following facts (if you deem them relevant):
 Mrs. Hud is in her mid-30s and has three years of college
 The Hud’s home is located in a suburban neighborhood (not a secluded or remote area)
 The search occurred @ 7:00 PM
o Is there a difference between the officer’s authority to seize the computer and the CDs?
o He refused to let them search home computer
o They didn’t convey that he had refused consent
o If you and domestic partner share property, it would be hard to delineate
o Cops just need “apparent authority” – reasonable that they had control/authority.
REVIEW: Matlock  suggests joint control; Rodriguez  apparent authority to officer; Fernandez  need to
be present
24
1)
2)
3)
4)
5)
6)
Consent Search Elements
Cop’s subjective intent does not matter
Is there voluntary consent?
a. Do not have to inform of right to refuse consent
b. Must not be a product of coercion
i. Coercion = overborne will
c. Hard to prove involuntariness – high bar
d. Look at totality of the circumstances
i. Ex. Education level of person consenting, time search occurred, location, etc.
Scope of consent is judged on an objectively reasonableness standard
Once a traffic stop is concluded, there can still be valid consent if person agrees
If someone else is home, is there actual authority or apparent authority to consent?
When 2 people disagree on consent:
a. If the person who refuses is present, they win
i. Randolph is limited to its facts however and you can always wait it out
b. If not, they lose
E. Plain View Doctrine
 Three Requirements:
o Lawful access to the place from which the item can be plainly seen
o Lawful access to the item itself; and
o Probable cause to believe the item in question is an instrumentality of crime (“immediately apparent”
criminality)
o  If all three, can seize an item in plain view.
o NOTE: Plain view means Plain view!! NOT plain view AFTER movement
 Hypo: Warrant to search for lost rings anywhere that stolen rings could be found
o If looking for rings in box and fine heroin, then that’s okay, you can seize it.
o Don’t need inadvertence  subjective intent/pretext doesn’t matter for warrant purposes!

Arizona v. Hicks:
o Facts: Cop was in an apartment because a bullet was fired through the floor, striking the man in the
apartment below and cop noticed an out of place stereo. He touched and moved it to read the serial
numbers. He reported it to the headquarters and they informed him that the stereo was stolen. Cop
seized the equipment
o It was totally disconnected to be looking behind the stereo from looking for the shooter
o Held (Scalia): moving of turntable requires probable cause to believe it was stolen
o  The fact that the stereo was out of place isn’t enough for probable cause. Officer only had
reasonable suspicion.
o If he saw it in plain view without moving then he could call in the serial number  then probable cause
in that case
o
o

Dissent: distinction between “looking” and “moving” is silly
Dissent (O’Connor): “cursory inspection” should be allowed based on reasonable suspicion (the lesser stop and frisk
standard)
Problem 4F-6:
o The police received an anonymous report of an abandoned minor at a specified home. Officer Darryl
and 2 others knocked on the front door. After not getting an answer, they saw someone sleeping when
they peered in the window. They knocked again and Dedra’s son responded. When the front door was
25
o
o
o
o
open, Darryl saw a pipe. Darryl asked the son if he could come in and he did and smelled drugs from
the pipe. Dedra came home and admitted that it was her pipe for personal use
Issues:
Viewing the pipe through the door: ok- no issue with knocking
Entry into home: capacity to consent? Issue not on appeal so not discussed here
Plain view seizure of the pipe as contraband: had access to place and to item, but had to pick it up to
smell pot; pipes not illegal to buy; could have bent down, but did not
 When he lifted did not have probable cause
 4A violation- moved it; resembles Hicks
 Does not matter he did not HAVE to move it
TERRY STOP AND FRISK


The court always presumed you needed probable cause for warrantless searches until Terry v. Ohio
What if an officer comes upon something suspicious, maybe you should be able to stop the person
briefly, and if something doesn’t add up, you should be able to search
A. Major Cases
 Terry v. Ohio (1968) (p. 417):
o Facts: the men pacing back and forth and pausing in front of store, officer stopped them, asked them
questions, and frisked Terry.
o Note: a brief stop to ask questions goes to reasonable suspicion; the frisking goes to risk of officer
safety
 Frisk is a pat down – (flat pawns; not like a search incident to arrest)
o Issue: Whether probable cause to arrest is ALWAYS necessary for the police to seize a person and
subject him to a limited search for weapons.  NO.
o RULE: (1) Where a police officer observes unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity may be afoot and that the persons with
whom he is dealing may be armed and presently dangerous, (2) where in the course of
investigating this behavior he identifies himself as a policeman and makes reasonable inquiries,
and (3) where nothing in the initial stages of the encounter serves to dispel his reasonable fear
for his own or others’ safety, he is entitled for the protection of himself and other to conduct a
carefully limited search of the person’s outer clothing in an attempt to discover weapons.
o Analysis  Seizure must be:
 Justified at its inception; and
 Reasonable in scope- pat down reasonable if officer thinks he has weapons
o Holding The officer “seized” petitioner and subjected him to a “search” when he took hold of him
and patted down the outer surfaces of his clothing.

Sibron v. New York:
o Facts: Cops watched man over 8 hours; cop approached man; reached into pocket and took out
cocaine.
o Holding: 4A violation; no reasonable suspicion to believe he was armed and dangerous
o Also exceeded pat down because he went into pocket.

Dunaway v. New York (1979) (p.430):
o Facts: Cop had info implicating man for murder – drove him to station and put him in room; was a de
facto arrest.
o Applies Terry’s balancing test:
 Detention for custodial interrogation requires probable cause (de facto arrest)
26
o Holding: 4A violation – exceeded scope of Terry; would need probable cause to arrest
B. “Seizure” of Persons:
 US v. Mendenhall (432)
 D arrived on a flight from LA to Detroit. Plain clothed DEA Agents were watching and said she was
nervous, left plane last, scanned the terminal, claimed no baggage >> suspicious. Agent approached her
and asked her for ID and the plane ticket. The plane ticket was in a false name. D looked really nervous
Agents gave back her ID and ticket and asked her if she would go with them to the airport DEA office
for more questions. At the office, the agent asked to search her person and handbag. She agreed. A
female cop came in and asked her again if she could search and said it was okay to refuse and she
proceeded to strip search her, finding heroin
 TEST for what is a seizure- an officer’s words and actions would have conveyed to a reasonable
person that she was not free to leave
 On issue of Seizure, court found:
o No-2; Yes, but reasonable suspicion -3; yes, and no reasonable suspicion- 4
o Note: the questioning starts as a consensual non-seizure  and then may develop if person feels they
cannot leave, thereby becoming a seizure.

California v. Hodari D.
o Facts: Cops were patrolling in street clothes; saw 4 kids that ran when they saw them; chased kids and
told them to halt; kid tossed cocaine; cop then tackled and cuffed him
o Mendenhall states a “necessary but not sufficient condition for seizure… effected through a ‘show of
authority’.”
o Additional requirements: physical force to restrain movement OR submission to the assertion of
authority
o Compare: Michigan v. Chesternut (1988) (p.401): “mere following” of suspect is not a seizure
o Holding: no seizure in the chase
 Why was this relevant?: if the chase was a seizure, it would have been unconstitutional b/c the
cop didn’t have reasonable suspicion until the cocaine was thrown
 Note: Mendenhall focuses on what the officer did, but under Hodari regardless of what the officer
did, if you did not submit, then you are not seized – (various states have rejected Hodari).

Problem 5A-5:
o Officer was patrolling and saw two women he had a “hunch” were going to commit a crime. He saw a
man and woman walking toward him with heavy jackets on a warm day. Officer drove in their
direction. He asked the woman a question and she answered. He asked the guy to approach the cruiser
and he did. He then said bring the bag and then the guy grabbed the bag and ran away. Cop yelled at
him to stop and ran after him. The bag had 2 bags of cocaine inside.
o *Different result under Mendenhall and Hodari
o Under Mendenhall, a reasonable person would have believed that he was not free to leave
 There would be a seizure because if a cop is yelling at you to not leave, you would not feel free
 Court here rejected Hodari and said this was seizure and there was no reasonable suspicion
o Under Hodari, the seizure needs physical force or submission to the assertion of authority
 There is no physical force in this case. He was told to step forward and he listened to that but
did not listen to bringing the bag forward
 Second request led him to run off
 Note: most common Terry Stop is a traffic stop! – No distinction between Mendenhall and Hodari
here
27

Brendlin v. California (2007) (p.452): seizure re: passengers in traffic stop
o If a car is pulled over, driver and passengers are also seized.
C. Seizure on Buses
 Florida v. Bostick (1991) (p.433):
o At a bus stop, there was a drug check; 2 cops discovered coke after they got consent to search luggage
o Issue: per se seizure in this bus encounter?
o Holding (O’Connor): NO – seizure occurs [only]where a reasonable (i.e. reasonably innocent)
person would not feel free to decline an officer’s requests or otherwise terminate the encounter
o

Dissent (Marshall): In such encounters, suspect must be informed of right to “break off the interview” before officers can
seek consent to search effects
U.S. v. Dayton (2002) (p.442):
o Facts: On the bus, D had drugs within his legs and saw his friend get arrested and yet he still
consented. They asked to search the bag first and he said yes and nothing was there. He was wearing
baggy clothes so then searched person who said yes and drugs were uncovered. Cops then turned to
Drayton and same thing happened
o Relevant: No weapon was brandished, no “intimidating movements”; “polite, quiet voice,” - “we
would like for your cooperation”; presence of other passengers (so there were witnesses)
o Irrelevant: uniforms; badges; holstered firearm; location of officers; arrest of travelling opinion
o Holding: no 4A violation because no seizure
 D knew that he was going to be searched but did not want it. He saw what happened to his
friend
o
Dissent (Souter): “an atmosphere of obligatory participation
o  for these kind of searches, officers have to rely on voluntary consent; if it is involuntary, it a seizure
with no reasonable suspicion!
D. The Showing Needed to Stop & Frisk: what is reasonable suspicion?
 Illinois v. Wardlow (2000) (p.459):
o Majority (Rehnquist): no “bright line rule” but in this case, presence in high crime area plus
unprovoked flight establishes reasonable suspicion
o  commonsense judgments and inferences about human behavior
o Note: major issue here was respondent’s unprovoked flight; the flight was from seeing the cop 
look at the totality of the circumstances
E. Informants’ Tips & Reasonable Suspicion
 Alabama v. White (1990) (p. 469):
o Facts: anonymous tip said woman would come out of the apartment, get into a specific car, and go to
a motel  most of the informant’s tip lined up but not everything
o Considerable detail predicating future plus police corroboration
o Reasonable suspicion is dependent upon both the content of information possessed by police and its
degree of reliability
o Holding: under the totality of the circumstances, the anonymous tip, as corroborated, exhibited
sufficient indicia of reliability to justify the investigatory stop or respondent’s car.

Flroida v. J.L . (2000) (p.474):
o Facts: Someone called in and said a black boy with a plaid shirt had a gun  this assertion was
viewed as static.
o Holding: not enough for reasonable suspicion
o Predictive vs. purely descriptive information -- (nothing predictive here)
28
o A tip must be reliable “in its assertion of illegality, not just in its tendency to identify a
determinate person.”

Navarette v. California (2014) (5-4) (p. 478):
o Facts: Anonymous 911 caller reported she had been run off road by pick-up truck; specified area;
model; license plate number, etc.; cop pulls over (seizure) smells pot and searches car
o Holding: reasonable suspicion!
o Majority (Thomas): eyewitness knowledge of dangerous driving; contemporaneity of the incident &
tip; disinclination of 911 callers to make reports; driver’s “erratic behaviors” are strongly correlated
w/ drunk driving  this wasn’t just a static description
o

Dissent (Scalia): “freedom-destroying cocktail”; justifies traffic stops
Problem 5A-11 (p. 484):
o Facts: the area had a problem with trespassing; the 2 individuals were not near the entrance of the
store; they had no shopping bags; they saw cops and moved away at a fast pace (but not running)
o Holding: 2 judges thought this was enough to find reasonable suspicion
o
Dissent: was concerned that this would impact/target minorities.
F. Criminal Profiles and Reasonable Suspicion
 United States v. Sokolow (1989) (p.482):
o Facts: suspect was travelling a name that didn’t match his number listed; was travelling to Miami
(drug haven); only stayed in Miami for 48 hours (even though flight takes 20 hours; appeared
nervous; checked none of his luggage
o Law enforcement must articulate factors establishing reasonable suspicion; “that these factors may be
set forth in one of the DEA’s “drug courier profiles” does not somehow detract from their evidentiary
significance as seen by a trained agent.”
 Profiles are a tool that could be used
 Cannot reflexively rely on them!

Heien v. North Carolina (2014) (p.483):
o Facts: an officer had stopped a vehicle that had one functioning brake light because he thought this
was a violation of the law. Person consented to a vehicle search, and officer found cocaine
o Issue: Whether reasonable suspicion can rest on a mistaken understanding of the scope of legal
prohibition.
o Takeaway: Objectively reasonable mistakes of law are not incompatible with reasonable suspicion
o Holding: because the officer’s mistaken understanding of the vehicle code was reasonable, the stop
was valid.
o
Dissent (Sotomayor): Mistakes of fact and law are different
G. Border patrol example
 Facts: Border patrol agent stopped a minivan driven by D and found over 100 pounds of drugs during a
consent search. In making the stop, agent relied on the fact that: the vehicle had triggered sensors on the
road that were used by those who wanted to avoid the fixed border checkpoint; the timing coincident
with a checkpoint shift change; minivans are commonly used by smugglers; driver slowed dramatically
as he approached the agent’s car, appeared stiff and did not look at the agent; knees in the children in the
back were “unusually high as if … propped up on some cargo on the floor,” kids were acting strange as
if instructed to do so; driver signaled for a turn and then turned signal off and then on and turned
abruptly to avoid the checkpoint; the road he turned on was rougher than other routes; agent did not
recognize the vehicle as part of the local traffic; minivan was registered to an address 4 blocks north of
the Mexican border in a high-crime area
 Issue: Do the factors listed by law enforcement create reasonable suspicion to justify the traffic stop?
29
o Using DEA agents who are trained for this
o High-crime area for registered car
o There was an abrupt turn
 Holding: use a totality of the circumstances test and conclude reasonable suspicion:
o Through the eyes of the officers with special training who say that in their experience, these factors
produce reasonable suspicion of criminal behavior
o And then apply common-sense judgment to see if it rises to reasonable suspicion
o “specific and articulate” facts that suggest criminal activity
o Must be particularized and objective
H. Terry detention and questioning while detained hypo:
 Facts: The police obtained a search warrant to investigate a gang-related, drive-by shooting; while there,
they handcuffed three individuals found on the property. Men filed a suit against the officers alleging
that she was detained for an unreasonable time and in unreasonable manner.
o Why does this fall under Terry?
o Police is asking questions. If those answers give rise to reasonable suspicion then they can continue to
question.
o As to the 4th Amend, if you are prolonging the detention to as question when the search is done, then
that would violate the 4th.
 Holding: No 4A violation as an officer who has properly detained a suspect on reasonable suspicion of
criminal activity does not need additional justification to ask questions about an unrelated topic of those
questions do not increase the length of the justified detention
o Was allowed here because questioning was during the search and did not prolong the search
I. Permissible Scope of Stops, Frisks, and Sweeps:

Terry stop and frisk must be:
o Reasonable at its inception and
o Reasonable in scope
 Brevity Requirement – (Durational Limits):
 U.S. v. Sharpe (1985) (p.495):
o Facts: D was pulled over for 30-40 minutes while chasing down his drug running buddies who all
tried to evade the police when police attempted to pull them over. The car was weighed down. Cops
eventually found weed in an overloaded truck and arrested them all. D claims that he was held too
long and that the weed was found after the Terry stop had been extended to an arrest
o Holding: No 4A violation because Terry stop did not exceed scope!
o Test: Did the cops act in a “diligent and reasonable manner” -- yes.
 There was obvious reasonable suspicion in this case
o Delay of 20 minutes was D’s own fault
 Length is a factor but he caused it; if both cars would have stopped then the length
would not have been an issue.
o Concurrence: favored a per se rue regarding brevity
o
Dissent: brevity should not be gauged by shortcomings of law enforcement efforts or resources
 Montoya de Hernandez (1985):
o Facts: Montoya swallowed 88 drug-filled balloons. D arrived at LA Airport on a direct flight from
Colombia. Customs agents’ inquiries and investigation led to a reasonable suspicion that she was
concealing drugs in her alimentary canal to smuggle them. D’s refusal to consent to an X-ray resulted in
a 16-hour detention during which they waited for a bowel movement
o Holding: Detention was okay because reasonable suspicion about alimentary canal smuggling
30
o Extension of Sharpe – the delay was her own fault because of her refusal
o The officers were acting in a diligent and reasonable manner because she wasn’t cooperating and
there was nothing else they could do
o
Dissent: unreasonable if less intrusive means were available.
 United States v. Place (1983):
o Facts: Consent to search two suitcases obtained at Miami airport; decision not to search; when flight
arrives in NY, DEA agents request permission to search, which is denied; luggage then seized so a
warrant can be obtained; dog sniffs luggage and alerts to one of the bags 90 minutes after initial seizure;
three days later warrant is obtained; drugs found within the bag to which the dog had alerted.
o Holding: Terry’s brevity requirement is violated.
 There were other alternatives such as having the dog come immediately
 They also knew that he was coming so did not need the delay of 90 minutes for the dog
 Ybarra (1979) (p.536):
o Facts: Cops believe a bartender is dealing drugs out of the bar. They get a search warrant which gave
them the right to search the bar and the bartender. At the moment they did it, the bar was open to the
public so they frisked all of the patrons although they had no evidence on those people
o Holding: 4A Violation
o Executing a search warrant for narcotics at a bar does not confer automatic right to frisk patrons
on the premises; no frisk of individuals present during execution of search warrant for narcotics without
reasonable suspicion

Michigan v. Summers (1981) (p. 536):
o Officers can detain occupants of home while executing search warrant (here, for narcotics)
 Can detain in home and area immediately outside home

Bailey (2013) (p. 536):
o Facts: Cops go to execute the search warrant but no one was home. They were a mile away. Cop
drove a mile away and told them to get in the car and go to the home and sit.
o Need reasonable suspicion to detain recent occupants beyond the immediate vicinity of the
residence at the time of the search
o Have to be in the home or its curtilage effectively, but not the open field
 Scope of Terry Stops: Requests for Information

Hayes v. Florida (1985) (p. 491):
o Facts: transport to station house for fingerprinting based on reasonable suspicion  NOT OKAY!
o Holding: need probable cause for this and reasonable suspicion is not enough – exceeds scope!
 Line is crossed when police, without probable cause or a warrant forcibly remove a person from
his home and transport him to the police station, where he is detained, although briefly, for
investigative purposes
o Could fingerprint in the field.

Hibel (2004) (5-4) (p. 506)
o Facts: Hiibel was under investigation for a suspected assault. He refused to respond to an officer’s
request for identification. Cop arrested D.
o Nevada’s “stop and identify” law is OK
o Not unreasonable for officers to require a suspect who is being lawfully detained to identify himself
 Sensible part of an investigation – only asking for identity
31
 Minimally intrusive
 By producing ID, they could have avoided the arrest
o Notes: If you do not answer who you are, they can arrest you. They can search you incident to arrest
(Chimel and Robinson) even if they could not arrest you prior to your refusal to answer that question.
They could only frisk you before if there was a suspicion that you were armed and dangerous but if not,
they could not have frisked you
 Scope of Terry Stops and Frisks: Focus on Traffic Stops
Dog Sniffs:
 Illinois v. Caballes (2005) (p. 2005) (p. 515):
o Facts: D was lawfully stopped for speeding. While one officer wrote a parking ticket, the other walked a
trained dog around the vehicle. When the dog got to the trunk, he alerted for drugs. The officers
conducted a search and found drugs
o Holding: - No 4A violation; Dog sniffs must not prolong the stop unreasonably
 It was a 29 minute stop; the dog did prolong the stop but it was reasonable time
o No privacy interest for odors from your car
o At any time you are pulled over for a traffic stop, the dog can run around your car and sniff car (or
luggage)

Rodriguez v. United States (2015) (p. 507):
o Authority for seizure ends when tasks tied to the traffic stop are completed
o Difference becomes the timing of when you give the ticket
 Rodriguez issued the ticket after the stop was concluded while Caballes was during. The
unreasonable piece seems to drop out because once you finish the tasks tied to the traffic stops,
then you have to let the driver go. You can ask for consent but if you are denied consent, you
cannot make the driver sit there absent reasonable suspicion of criminal activity.
 If there was reasonable suspicion for drugs in the car without the dog, that would have bought him
some time under the brevity requirement
 However, he only had the drug evidence with the dug and thus, was stuck
 With Rodriguez, if you want the dog to sniff the car, then wait and do not give the ticket

PA v. Mimms (1977) (p. 522): It is reasonable for officers to routinely order drivers to get out of their
vehicles during a lawful stop for a traffic violation
MD v. Wilson (1997) (p. 522): ordering passengers out of the car is allowed; the passengers are already
stopped by virtue of the traffic stop so the additional intrusion of getting out the car
AZ v. Johnson (2009) (p. 523):
o Facts: officer stopped a car; became suspicious of passenger (based on behavior and responses); she
patted him down and found a gun
 To justify a patdown of the driver or passenger during a traffic stop, the police must harbor
reasonable suspicion that the person subjected to the frisk is armed and dangerous.



Michigan v. Long (1983) (pg. 516):
o Car “frisks” OK under the safety rational
o Facts: 2 cops were on patrol in a rural area. They saw a speeding car late at night and saw it swerve into
a ditch. The officer stopped and went to the driver who met them by the rear of his car. His left side door
was open and officer saw a hunting knife on the floorboard of his seat. Cops Terry frisked him and no
weapons were found. They then went to shine a light into the car for other weapons. They noticed
marijuana in the armrest protruding. They frisked the vehicle and found 75 pounds of pot in the trunk
32

Note that the weapon does not really matter here. If it was a baseball bat, the same outcome would
have probably happened; any implement that could hurt them
o Rule: The search of the passenger compartment of a car, limited to those areas in which a weapon
may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on
“specific and articulable facts which, taken together with the rational inferences from those facts
reasonably warrant” that the suspect is armed and dangerous and the suspect may gain
immediate control of weapons
o can search passenger cabin wherever weapons may be placed or hidden

Problem 5A-24 (pg. 539):
o Steppes was traveling in a pickup truck going 47 in a 35 mph zone. He exited his car with his license
and proof of insurance in hand. Officer repeatedly kept asking him if he had a gun and driver kept
saying no. He even showed him his mace and stated that he did not have a gun. Peace said no and called
for backup saying he felt there was a weapon in the vehicle. While Steppes was signing a speeding
citation, cop began to search his vehicle. Under the backseat of the truck, a pistol was found in a case.
Cop admitted that he saw an NRA sticker on the back of the pickup truck and that the truck contained
camouflaged material and hunting equipment and was shown mace
o Can only search the car if reasonable suspicion that he is armed and dangerous
 Totality of the circumstances!
 NRA stickers and camouflage are common in Texas
o Holding: No reasonable suspicion here NRA sticker not enough
o Note: this was all occurring within the traffic stop b/c the ticket wasn’t issued yet.
 Scope of Terry Frisks: The Discovery of Contraband – “plain feel” doctrine


Minnesota v. Dickerson (1993) (p. 524):
o Facts: Cops did a pat down with someone who they had reasonable suspicion of drugs for. They did an
exploratory search and officer reached into pocket and touched lump in the pocket and retrieved a small
plastic bag containing some crack. Officer knew that he was not armed in the packet
o Standard: No “sliding, squeezing [or] otherwise manipulating” an object to determine if it is
contraband.
o Holding: 4A violation- he knew it was not a weapon but continued to handle it
 Ex. If you are an officer and think someone is armed and dangerous, you have the right to frisk
them. During the search, if you find drugs, it is okay, but cannot overstep Terry.
 Drugs must be “immediately apparent” based on contour or mass
o Sense of touch vs. sense of sight in “plain view” doctrine is analogous
Problem 5A-31 (pg. 544):
o Facts: Cop was on routine patrol and saw someone 70 feet away on the sidewalk remove a clear baggie
with an orange tint to it from the waistband. Officer drove there and did a stop and frisk. When he
reached the front area of the waistband, he felt the bulge of a plastic baggie. He removed the baggie
which had cocaine. He later testified that he gave a slight squeeze when doing the pat down in his
normal routine. He said he patted him down and lightly squeezed it, he knew what it was, especially
since he was trained in this. He reached in and pulled the baggie out
o It needs to me immediately apparent bulge was contraband; but needs to be immediately apparent within
the scope of what you can do (no squeezing, etc.)
o He gave a slight squeeze; but did he have to squeeze it to know it was not a weapon?
 This was a minor squeeze here and Court generally lets this in
 Ex. Weapons can be big like guns or knives but also can be razors and may need a slight squeeze
 Mild squeeze is okay because it is natural when determining if a weapon
33
 Remember that subjective intent of the officer does not matter
 If officer does a weapons frisk and in that process he finds drugs, then that’s okay.
o Holding:
 valid stop because reasonable suspicion for criminal activity of him being a drug dealer
 lawful frisk; Court took judicial notice of the fact that “drug dealers are often armed and
dangerous”
 Gives deference to the officers
 Terry frisks are always safety risks
Terry Principles and “Protective Sweeps”
Maryland v. Buie (1990) (p. 530):
searching for criminal confederates during in-home arrest
Facts: This is a case about arrests and not searches. After D emerged from his basement, a cop entered
the basement for a protective sweep. While in the basement, he found incriminating evidence against D
regarding the robbery that led to his arrest
o Incident to arrest, officers may:
 “without probable cause or reasonable suspicion look in closets and other areas immediately
adjoining the place of arrest from which an attack could be immediately launched.”
 Other areas? Need at least reasonable suspicion to sweep other areas!!
 Need articulable facts that would warrant a reasonably prudent officer in
believing that the areas to be swept harbors and individual posing a danger to
those on the arrest scene
 Note: courts allow protective sweeps for warrants related to drugs because drugs and
guns/dangerous people tend to go together.
J.

o
o
SPECIAL NEEDS

NOTE: court has expanded to different requirements. The only evidentiary standard in the 4th
amendment was probable cause; the court then allows exceptions when you don’t need a warrant and
reasonable suspicion is enough. Court then expands to “balancing” in the special needs context.

To be constitutional, a search must be reasonable at its inception and reasonable in scope. In evaluating
reasonableness, courts must weigh an individual’s “legitimate expectations of privacy and personal
security” against “the government’s need for effective methods to deal with breaches of the public order.”
(New Jersey v. T.L.O.)
A. School Searches

The Court balances student’s (reduced) privacy interest – kids do have some need to bring personal property
to school – against the school’s need to keep order – in light of increasing crime. School searches must be
Reasonable.

New Jersey v. TLO (1985) (p. 547):
o Facts: “escalating” cause: cigarettes; rolling papers; pipes, drugs, plastic bags, money; index card,
letters; reading the letters  kept getting worse each step of the way!
o First: The majority’s full embrace of the balancing approach as the rule in evaluating 4A
reasonableness
o Warrant not required here; different atmosphere where you need to maintain discipline
o Do not need probable cause: The “special needs of the school environment” require a standard “less
exacting” than probable cause [here: reasonable/individualized suspicion exists]
o Two searches: one for cigarettes, one for marijuana
34
i. Reasonableness at their inception; reasonableness in scope
ii. “escalating” cause: cigarettes; rolling papers; pipes, drugs, plastic bags, money; index card,
letters; reading the letters  kept getting worse each step of the way!
o Second: warrant requirement would be inappropriate/impracticable
o Third: No probable cause needed  The Special needs of the school environment require a standard less
exacting than probable cause [here: reasonable/individualized suspicion exists]

Safford Unified School District #1 v. Redding (2009) (p. 562)  Searching a Student’s Person
o Facts: Student had extra strength Advil which is not permitted in schools. They searched her. This search
included her backpack, outer clothing, brassiere, and finally her underwear when they could not find
anything else. They did not call her parents
o Reasonableness in Scope: “excessively intrusive in light of the age and sex of the student and the nature
of the infraction.”
o Reasonableness in inception – yes
 Reasonable grounds for suspecting that the search would turn up evidence of violating school rules
 Must balance keeping drugs out and order in school vs. intrusion of student (which was her bag
first)
o Also keep in mind nature of infraction- so risk to rest of school
o Holding: It was okay to search her backpack and outer clothing, but more than that it exceeded the scope
 unconstitutional!!

Law & Order video:
o Lockers of murder suspect’s friends were searched because the monsignor acquiesced to allowing the
search.
o Spirit of T.L.O  seems to give a lot of leverage to school officials
B. The Evolution of the Special Needs Doctrine
 Skinner v. Railway Labor Executives’ Ass’n (1989) (p. 587):
o At issue: blood and urine tests of railroad employees following “impact accidents”
o Majority: Where special needs exist, a showing of individualized suspicion is not a “constitutional
floor” below which a search must be presumed unreasonable
o Government needs are so weighty that suspicion is not needed
o  constitutionally reasonable to conduct a search without any suspicion in a scenario like a
railroad accident because of public interest and gravity of the carriage.


Note: Search can be constitutional at its inception but depending on how far they go, it could become
unconstitutional.
When government points to special needs that allow for suspicionless searches, it can NEVER be for
general policing.
C. Sobriety Checkpoints

Michigan Dept. of State Police v. Sitz (1990) (p.563):
o Facts: sobriety checkpoint with average delay being 25 seconds
o Balancing in favor of the state even though overall efficacy is low (about 1% hit rate)
o State interest: keeping drunk drivers off the road  compelling enough
D. “Narcotics” Checkpoint:

City of Indianapolis v. Edmond (2000) (p. 571):
o Facts: Checkpoint to look for drugs; would stop car and let dogs walk around the car
o The primary purpose here was to uncover evidence of ordinary criminal wrongdoing  NOT like Sitz!
35
o How could this narcotics checkpoint have been directly analogous to the sobriety checkpoint? If the
officers were checking to see if drivers were high
o Court lays out an exception for “tailored roadblocks” for emergency purposes – e.g. to thwart terrorism
or catch a fleeing felon
o
Dissent: assails majority’s “new non-law-enforcement primary purpose test”
E. “Police Investigation” Checkpoint:

Ilinois v. Lidster (2004) (p. 582):
o Facts: Police set up a checkpoint to get the public’s help to see if they could discern any witnesses about
the hit-and-run that happened a week prior. The checkpoint was near the highway where the accident
occurred. D got pulled over and got a DUI because he was showing signs of intoxication.
o Not all law enforcement objectives are subsumed by Edmond.
 Purpose of the roadblock was for investigative purposes; they needed one because it was an
industrial area and there were no leads
o The Court balances:
 The gravity of the public concerns served by the seizure (gravity – murder; a way of finding this
guy; needed quick interference)
 The degree to which the seizure advances the public interest; and
 The severity of the interference with individual liberty
o Holding: the police stops were reasonable

Problem 5B-7 (p. 637):
o Is this roadblock justified under Edmond and Lidster?
o Facts: Cop received a radio report of multiple gunshots and numerous 911 calls in the Nut Circle Area.
Officer Tut joins and is on his way and sees many people speeding and about to collide. He sets up a
roadblock. He starts questioning the cars – in the third car, he questioned each passenger separately
fearing for his safety. As the front passenger got out, Tut noticed the butt end of a firearm beneath the
front passenger seat. He ordered them all out and arrested the men and found a pistol in the vehicle that
was seized
 Note: Court found no problem in ordering people out of the car
o Holding: No 4A violation
o Using Edmond as precedent, this is a tailored roadblock to catch a fleeing felon
 Hail of gunfire in neighborhood will typically give police a fair amount of latitude when the
interference isn’t grave
o Note: This is not as much as Lidster because there, there was a defined crime of a hit and run and a
roadblock set up for a specific purpose. Here, there is more uncertainty regarding the crime and people
involved
F. Drug Testing Cases:

In evaluating the reasonableness of policies permitting “suspicionless” drug testing, the Court has balanced
the nature of the individuals’ privacy interest against:
o the character of the intrusion;
o the nature and immediacy of the government concern at issue; and
o the efficacy of the means used for meeting it.
 To this end, a drug testing program will satisfy Fourth Amendment requirements only where this balancing
indicates that that the program is “divorced from a general interest in law enforcement.” (Ferguson v. City
of Charleston)
36

Skinner v. Railway Labor Executives’ Association (1989): Blood, urine, and breath tests for drugs are
reasonable for railroad employees following an impact accident despite the lack of any particularized
showing that the individual being tested has taken narcotics.

National Treasury Employees Union v. Von Raab (1989) (p.601): upheld a United States Customs Service
drug testing program. They were required to submit to urinalysis as a condition to transfer or promotion.
customs agents responsible for drug interdiction (YES)
o Although no specific employee had a drug problem, there is a tight nexus between what they do and
the drug testing at issue  Gov. has compelling interests in safeguarding borders and the public
safety that outweigh the privacy expectations of employees who seek to be promoted to positions
that directly involve the interdiction of illegal drugs ro that require the incumbent to carry a firearm.

Acton (1995) (p. 602): student athletes (yes):
o Deterring drug use by students since drugs are most severe during school years
o Educational process can be disrupted by drug use
o Risk of immediate physical harm to drug-using athletes and competitors is particularly high
o Student has lesser privacy interest in school and State has interest of maintaining discipline, health, and
safety
o Athletes have less privacy than a normal student because subject to regular physical and communal
undress and must adhere to regulations; it was voluntary to play a sport
o Court found suspicion-based testing impracticable!

Board of Education v. Earls (2002) (p. 604);
o Facts: Students had to undergo drug testing before participation in an extracurricular activity, while
participating, and agree to be tested upon at any time. Test results would be confidential and released
on a need to know basis and only consequence was failure to participate
o State wants to fight nationwide drug epidemic and prevent and deter substantial harm of childhood drug
use
o Individual’s interest/intrusion is virtually same as in Acton
o The school district was faced with a drug problem when it adopted the policy
o Court found this okay for students in ANY extracurricular activity
 The regulation of extracurricular activities further diminishes the expectation of privacy
o
Dissent (Ginsburg): “capricious, even perverse”

Chandler (1997) (p. 605): election candidates (NO)
o Georgia board cannot require elected officials to give a drug test because there was no issue of
officials using drugs
o Can’t be purely symbolic and has to be more than that
o They didn’t perform high-risk safety sensitive jobs.

Ferguson (2001) (p. 611): pregnant women (NO)
o State’s interest in protecting health of mother and child < individual’s privacy interest
o State was using the threat of prosecution and arrest for drug-using pregnant women
o The first time they get caught, there is an education component but second time, they go to jail
o  the threat of law enforcement was used as a “means” to the ultimate end – this was a substantial
invasion of privacy.
o Holding: this was a dual-purpose program but threat of prosecution to the court was primary enough
to violate 4A
37
G. DNA Testing:
 Maryland v. King (2013) (p. 613):
o buccal swab” of inside of cheek of those arrested for burglary or a crime of violence (or an attempt to
commit the same)
o need judicial determination of probable cause to use DNA sample
o OK- balancing “privacy-related and law enforcement-related concerns”
o Privacy-related considerations:
 Limitation to serious felonies
 Limited use of the DNA evidence
 Physical intrusion is negligible
 Arrestees’ diminished privacy expectations
o “Law enforcement-related” justifications/ “substantial” government interest:
 Identifying suspects is legitimate law enforcement goal (Hiibel)
 Identity not limited to name on birth certificate (e.g., fingerprinting)
 “Unparalleled accuracy” of DNA testing
o Public policy benefits of connecting arrestee with his or her “public persona:”
 Allows individual assessment of dangerousness
 Helps identify who might flee
 May allow the innocent to go free
o Holding: DNA identification of arrestees is a reasonable search that can be considered part of a routine
booking procedure; taking and analyzing a cheek swab of the arrestee’s DNA is a legitimate police
booking procedure that is reasonable under the 4th Amendment
o

Dissent (Scalia): Search incident to arrest doesn’t work; Special needs doesn’t work: primary purpose is crime-solving;
Will justify DNA collection for traffic violations and wrongful arrests of all stripes ;Since taking DNA sample following
conviction is okay, why burden the (potential) innocent – i.e., those who are acquitted?
Problem 5B-12: (p.641):
o Facts: NYPD set up checkpoints to enhance deterrent effects for terrorism. It appeared random but was
deliberate. Cops gave notice of the searches and made clear it was voluntary. There were
announcements and signs of the search that could occur. Supervisor established a selection rate based
upon the officer and passenger volume at the checkpoint. They searched only containers that were
large. Preferred method was to ask the passenger to open his bag and manipulate his possessions
himself so cop can see for an explosive. If necessary, the officer may open the container and manipulate
himself. He cannot conduct longer than necessary to ensure that the individual is not carrying an
explosive. Cop does not prolong search and it usually takes seconds
o Issue: Does the “special needs” doctrine justify the “Container Inspection Program”?
o Holding: Yes – no 4A violation
 Government interest in potential for disaster and significant loss of life in an area that has been
repeatedly targeted > minimal intrusion on individual
 They are trying to do it in a way that is respectful and giving notice
 They cannot search wallets or purses because that would not fit an explosive
 They may not intentionally look for other contraband
 They cannot read anything and cannot request personal information
H. Border Searches
 United States v. Flores-Montano (2004) (p.629):
o removal, disassembly and reassembly of fuel tank
o “routine” searches and seizures at the border are okay
o procedure not “so destructive as to require a different result”
o Rights are greatly diminished at the border
o Cars also have less privacy rights and driver is not subjected personally to invasiveness
38
o Minimally intrusive – only a few seconds

Problem 5B-11 (p.640):
o Potterman was returning with his wife from vacation in Mexico; the border agent go a hit that
Potterman was a sex offender and that he was potentially involved in child sex tourism and child
pornography; they retrieved two laptops and a digital camera; he inspected the devices and found
password protected files; they retained the laptops and camera and sent them over 170 miles away to
review the contents; images of child porn were found.
o Issues: (1) Border search versus “extended” border search; (2) should reasonable suspicion be
required for the “forensic” examination of the computer?
o Lesser privacy interest because it is at the border.
o 9th Circuit Holding: (majority) Called it a regular border search, but still need reasonable suspicion
for the forensic exam portion. The court determined there was reasonable suspicion here.
 Other opinion: regular order search, no reasonable suspicion needed; third opinion: an
extended border search that needs reasonable suspicion and didn’t think there was any
reasonable suspicion
  Courts are all over the place for these kinds of searches. Sup. Ct. will have to address this
issue.
o Takeaway: a routine search can be done at the border without suspicion. It is how far you can push
this search is what becomes the big issue.
I. Use of Deadly Force by Law Enforcement:
 Tennessee v. Ganer (1985) (p. 643):
o Facts: Officer received a “prowler inside” call; at the scene, he saw Garner running across the backyard;
officer figured that Garner was unarmed; police shouted to halt; Garner began to climb fence; officer shot
Garner in the back of the head
o Majority: deadly force necessary to prevent escape AND probable cause to believe suspect poses threat
of death or serious bodily injury to officer or others.
o The burden is on the officer to show that the person places this risk!
o Note: different result if this was a robbery – in which it is committed with a deadly weapon, then it would
be reasonable to use deadly force
o

Dissent: majority misconstrues burglaries
Scott v. Harris (2007) (p. 652):
o Facts: danger posed by 85 mph driver in hot pursuit; Officer hit car and person crashed; he was evading
arrest and needed to do to stop him
o Court found reasonableness under the circumstances at the time deadly force was used
o The court had to balance the nature and quality of the intrusion on the individual’s 4th Amendment
interests against the importance of the governmental interests alleged to justify the intrusion  Harris
intentionally placed himself and the public in danger
o Holding: This was reasonable because person was speeding; very dangerous to public
o Note: what links Garner and Scott is: reasonableness
J. Higher than Usual Standards of Reasonableness:
 McNeely v. Missouri (2013) (p.656):
o Generally, you need a warrant to take blood sample against motorist’s will in DUI cases
o Sticking a needle in someone is a greater intrusion

Winston v. Lee (1985) (p.656):
o Context: compulsory surgery to extract the bullet
39
o Balancing test:
 Intrusion of privacy and bodily integrity
 Government’s need for the evidence
o The state didn’t need this surgery because they had other evidence; this was an invasive procedure
because he would need to go under general anesthesia
o Hypo: if this was the only evidence for the government, the government need would be extremely
high, but there would still be a high intrusion on the defendant – which means a tighter case for the
court.
o Hypo: if removal of bullet was live saving and taken out, then police wouldn’t need a warrant.
K. Invasive Searches and the Fourth Amendment
 Problem 5C-4 (p. 663):
o Facts: an informatnt told detective that Rodrick possessed and sold crack cocaine; the passenger with
Rodrick said that he wanted her to hide a plastic bag that she thought was crack but she refused; an
extensive search of the car/area/and strip search of Rodrick yielded nothing; second strip search was
done (squat and cough – but he was only giving a faint cough). Rodrick didn’t consent to any of the 3
offers given. Warrant was sough; x-ray done that showed something was there either a gas pocket of
a foreign object; doctor performed a protoscope examination.
o The use of the protoscope was a highly invasive method
o Other alternatives:
 Enema- shooting water up
 Cathartic – very strong laxative
 Digital (manual) rectal extraction
o Court found that there was probable cause to issue warrant; Defendant argued that the court erred by
giving this order because the balancing of interest favored the Defendant
o Holding: Court couldn’t find anything more invasive than this and stated that there was less intrusive
alternatives (enema and cathartic)
 Review of 4th Amendment Analysis: Majority perspective is that you generally need reasonableness
based on individualized suspicion because by 1997 there were so many exception to the requirement of a
warrant.
ENTRAPMENT – one of the 7 criminal defenses
A. Entrapment Basics:
 An affirmative criminal law defense
 Not constitutionally based; first adopted by the U.S. Supreme Court in 1932 (Sorrells) as a matter of
Congressional policy
 All 50 states have some form of the entrapment defense
 One of the 7 major criminal defenses:
o Insanity, intoxication, mistake of fact/law, self-defense, necessity, duress, entrapment

Sherman v. United States (1958) (p.674):
o Facts: Mr. Sherman is in rehab and is going for drug addiction. He meets the informant. They establish
a relationship. Informant keeps asking him where to get narcotics because the treatment is no longer
working for him. He repeatedly makes this request. D gives in and gets it and then the informant
catches him
o Holding: 4A violation
o Announces subjective test of entrapment that focuses on D’s predisposition:
40

for entrapment, government agents must implant in the mind of an innocent person the
disposition to commit the offense
 here- The fact that his past convictions are 5 and 9 years ago does not mean that he is
predisposed, especially since he is in rehab; but if conduct was 2 and 4 months ago, it
would probably be predisposition
 predisposition can also be established by D’s “ready acquiescence” to inducement(s)
o The government’s action here was insidious because he was in rehab and had denied several times –
didn’t readily acquiesce
o Concurrence in the result: Objective test of entrapment
 Looks to the conduct of the police, not the character of the defendant
 Was the govt conduct so extreme as to bring about the downfall of those who, regardless of
predisposition, would have obeyed the law if left by themselves?
 a minority of states (+ MPC) favor this approach

Example of Objective test:
o In Hawaii, law enforcement established a scheme in which a person would act drunk/knocked out on
the street with money popping out of his pocket.
o The Defendants argued that the police made the too tempting
o Because Hawaii uses the minority test (objective test), these people were exonerated
 Because this was overzealous on the part of the police
 If this would have been a majority test jurisdiction, then it would be clear that there was a
predisposition because they readily acquiesced

Entrapment under the MPC:
o Government officials or their agents employ “methods of persuasion or inducement that create a
substantial risk that such an offense will be committed by persons other than those who are ready to
commit it”
o D bears burden of persuasion by a preponderance of the evidence

United States v. Russel (1973) (p. 682):
o Facts: Russell was charged with making meth. An undercover agent basically gave him the bait and
took it. He was supposed to locate a lab where the meth was being manufactured. He went to D’s
house and made an offer to supply the D with the chemical propanone, an essential ingredient. D
provided him and asked the manufacturer to stop selling. When he needed it, he had to get it from the
agent. He was actively engaged in the manufacture of meth, this was not the only place to get the
chemical.
o Holding: No entrapment
o no due process violation; used subjective test (predisposition) requires that government “implants the
criminal design in the mind of the defendant;” therefore, Russell loses.
 he was already making meth
o

Dissent (Stewart): favors the objective test, and under this test, he finds the abuse of governmental power to be
impermissible manufacturing of crime.
Problem 6-8 (p. 711):
o Facts: guy that was online agreed to show Sharon’s children sex acts (anal sex); he went to hotel
room where children would be in addition to Sharon; he was charged with crossing state lines to
engage in illegal sex acts.
o As a matter of law, ready acquiescence is a proxy for predisposition
o 9th Cir. Holding (2-1): This was entrapment
41

At the time that the government acts, we need to see what we know of the person (he was a
cross dresser and had a foot fetish); He was talking about giving the children “moral
guidance”; Sharon was the one to mention sex.
 Court found that the government was overreaching
 Government found no evidence that he ever engaged with any girls in sexual relations.
o  this court shows distinction between being a reflective listener and proactive guider
o

Dissent: the idea that you could implant having sex with a child is hard to grapple with. He was quick to say that he could
instruct them in anal and oral sex.
Entrapment example (college student):
o Facts: Campus police received info from an informant that there was a prostitution ring on campus.
Informant said women were involved and solicited people at local bar. Cop visited bar in plain clothes.
He spoke to B who said “she was in search of a rich old codger to help support her lifestyle” and that
she met an old guy last week who treated her right in exchange for keeping him company. Cop said he
had a wealthy friend and set up a date. Other cop Viego asked her to dinner after and they had dinner
but refused to let him walk her home even when he told her that she had a present for him. The next
day, he returned and said he wanted to see her room and would give her a gift in there. She did and it
was a diamond necklace. Before handing it over, he said he expected “a favor” in gratitude and began
to disrobe and she told him to leave. He said he would give her 1k for expenses if she would let him
stay and she agreed. He arrested her for prostitution
o Sherman and Russell subjective entrapment test:
 She was not predisposed since she refused a few times
 The more incentive it takes for you to do it, the harder you can say ready acquiescence
o Frankfurter objective test:
 Was it so extreme? Is it like the Hawaii case? Is giving indebted college students 1K enticing for
them to have sex with you?
o Holding : Probably 4 A violation.
CONFESSIONS AND DUE PROCESS
A. Historical Evolution
 Common law: coerced confessions excluded as unreliable
 Brown v. MS (1936) (p. 717): first due process case – whipping the defendant violated his due process
rights  Problem with confession while whipping: it is unreliable, can get the wrong person, this is
supposed to be a civilized society.
 1936-1964: due process was the only constitutional ground for excluding a confession in non-federal
prosecution
 By the mid 60s: the 5th and 6th amendments began to apply to state procedures; this now eclipses due
process cases, but the argument is still available and applicable.
 Who decides the voluntariness issue?
 “Orthodox” procedure: the judge
 “Massachusetts” procedure: Judge’s decision is preliminary; final decision rests with jury
o Arraignment and the admissibility of confessions
 arraignment “without unnecessary delay”
 delay does not automatically lead to suppression
B. Due Process Standard for Excluding a Confession:
 Involuntariness- police coercion that overbears the suspect’s will
 Ashcraft v. Tennessee (1944) (p. 718):
o Facts: Man was suspected of killing his wife. He was interrogated for 36 hours in jail
42
o Majority (Black): interrogation was “inherently coercive”
 Was sufficiently coercive and any confession that did occur was not voluntary
 36 hours, people going in and out, didn’t get any rest
o Dissent (Jackson): need “torture, mob violence, fraud, trickery, threats or promises;” methods that “have passed the
individual’s ability to resist and to admit, deny or refuse to answer.”


Leyra v. Denmo (1954):
o Facts: believed to have killed his parents, said he was having a sinus attack, and was in incredible pain
o Subtle and suggestive questioning by psychiatrist trained in hypnosis for 90 minutes; suspect thought
he was general practitioner brought in to treat sinus ailment.
o Involuntary  it was “almost trance-like submission”
 Can’t use hypnosis in such a way where person loses their freewill
Spano v. New York (1959) (p. 730):
Facts: After a bar fight, D goes back and fires 5 shots, killing someone. When he was arrested, he gave
his identity but said he wanted his lawyer. They made unsuccessful attempts throughout his custody.
Finally, they got his friend Bruno (who he surrendered to) involved. His friend was in the police
academy. He is denied counsel and questioned for 8 hours. Bruno says that if he does not confess, Bruno
and his family are in trouble. He would lose his job because of D’s phone call. D confesses
 Used totality-of-the-circumstances approach to voluntariness
 Impermissible reliance on “official pressure, fatigue and sympathy falsely aroused”
 Note: if Bruno was really telling the truth, same result. Cops are creating the same effect.
 Perhaps each element by itself would have been OK, but all taken together, this was as bad as Ashcraft
o Concurrence: post-indictment interrogation without counsel violates the 6th amendment [comes
later!]

C. Involuntariness Post-Spano:
 Blackburn v. AL (1960) (p. 739): coercive tactics that exploit D’s mental illness
 Townsend v. Sain (1963) (p. 739-740): “truth serum” (scopalomine; now known as a “date rape” drug)
 Mincey v. Arizona (1978) (p. 736): unconsented questioning in ICU of patient unable to speak
 Payne v. Arkansas (1958): Chief of Police → Confess or I will let in an angry mob of 30 to 40 people
who “want to get you.” 14A violation


Arizona v. Fulminante (1991) (p. 850):
o D is in jail for weapon defenses in Arizona. D says he is getting bad treatment and informant says
that he can protect him as long as he gets the confession of child’s murder. He said “confess to
killing your daughter or I will let these people tear you to shreds.” D thought this guy was another
inmate.
o 14A violation: confession induced by “credible threat of physical violence”
o This overbore the suspect’s will – he confessed because he was coerced by the undercover
government agent.
o This case shows the continuing viability of the 4th amendment:
 The 5th- wouldn’t apply because D thought he was a regular inmate
 The 6th: doesn’t apply to crimes not yet charged.
Colorado v. Connelly (1986) (p. 737): Issues:
o (1) The relationship between the reliability of a confession and its constitutionality
o (2) the meaning of “coercion” for purposes of suppressing confessions under the Due Process Clause
(compare Townsend; Backburn)
o (3) The relevance of mental illness in suppressing a confession via due process
43
o Facts: Cop was on patrol and Connelly walks up to him and says that he wants to clear his conscience
and confesses a murder. Cop asked if he was sure and Mirandized him and asked if he was under the
influence. D said he was treated in the past for mental illness but was okay now and not being treated.
Cop finds out later that he is severely mentally ill and his schizophrenia was driving his conduct. D
said he had voices in his head and God let him to the officer and then he confessed
o Holding: No Due Process Violation
 There was no police coercion
 The confession of someone that occurs during psychosis can be reliable
 Need police coercion for a due process violation of a confession
o Note: The Constitution won’t forbid this confession, but rules of evidence may.
D. Applying the Due Process Standard
 Problem 7-6 (p. 749):
o What factors weigh in favor of and against a finding of involuntariness?
 → herein: the (elusive) line between “pressuring” and “overbearing” free will
o Facts: Patrick was the primary caretaker for his 2-month-old infant son. Medical records showed that
he suffered at least 23 fractures. Patrick confessed to Detective. He was 41 years old, college
educated, and employed as a diving instructor, he was not placed under arrest and was advised that
his participation was voluntary, that he did not have to speak with Detective, and that he could leave.
Detective said that unless someone confessed, the child was going to be removed from the home and
placed in foster care. He also said that consequences of making a confession would be slight and that
he was not interested in criminal prosecution and would recommend that he would not be charged
criminally. He said that people do not typically serve jail time for this offense. Patrick went home and
talked to his wife and mother, who is a social worker. He then confessed
o It is not unconstitutional to pressure someone but when that overbears their will, the line is crossed
o Holding: No Due Process Violation – voluntary confession
 Look at totality of the circumstances
 He had a day to discuss with his family and his mom is a social worker; he voluntarily
confessed after thinking about it
 The coercion also has to come from the police!!
 Officer lied when he said he was not interested in prosecution, but he’s not the prosecutor, not
for him to even decide.

Problem 7-7 (p.750):
o The 18 year old kid had an IQ of 65 (below average) – he had communication and comprehension
problems
o Herein: false promises of leniency & confidentiality. Was their effect to overbear Timmy’s will?
o 9th Cir. Holding: the contribution of his mental impairment made him highly susceptible to influence.
He seemed totally overwhelmed by the experience. Police were aware of his impairment and had to
account for it. It seems if anything, they used it against him.
 This signals to 9th Cir. Cops that they have to be careful when questioning a mentally impaired
person
o Note: we are looking at the effect of the police’s conduct. No question that this would have a big
effect on an 18-year-old with mental problems
44
PRIVILEGE AGAINST SELF-INCRIMINATION AND CONFESSIONS
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of
War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be taken for public use, without just compensation.
A. Miranda rights are derived from the self-incrimination clause of the 5th Amendment
 Miranda v. Arizona (1966) (p.756):
o Facts: The police are persuading/tricking/cajoling suspects out of exercising their constitutional
right. They have inherently compelling pressures of custodial interrogation
o Concerns:
 “inherently compelling pressures” of custodial interrogation
 police brutality
 police tactics
 isolation of suspects
 psychological ploys/emotional appeals
 tricks: Mutt and Jeff; false line-ups
 talking suspect out of silence or request for attorney
o Four core warnings: You have the right to remain silent, anything you say can and will be used against
you in a court of law. You have the right to an attorney, if you cannot afford an attorney, one will be
appointed to you
o Effect of invocation of right to silence or counsel
o Waiving a suspects’ Miranda rights: standard, burden, effect of silence
o Admissibility of statements that violate Miranda
o Evidentiary use (at trial) of suspects’ invocation of his or her Miranda rights.
o Use of alternative procedures?
o For Miranda to apply, suspect must be in custody or “otherwise deprived of his freedom in any
freedom in any substantial way.

Options for Person under Custodial Interrogation:
o Effectively waive Miranda
o Effectively assert right to remain silent
o Effectively assert right to counsel
o  the latter two options then will constrain the officer’s conduct.
B. The Public Safety Exception
 New York v. Quarles (1984) (p. 774):
o Woman IDed a guy as a rapist. They asked him where the gun was. He pointed “over there” and they
went into the grocery store and retrieved the gun. They did not read him his rights when they asked
him where he put the gun.
o He was in custody without being read his rights
o There was a safety risk by not giving him his rights
o This is a “narrow” exception
o We focus on danger to public, not police
 Danger could be that an accomplice would grab it or that a child would grab it (remember,
grocery store)
45
 Asked where the gun was before reading the Miranda warnings
o Holding: statement and gun shouldn’t’ have been excluded


Terrorism and the Public Safety Exception:
o Potential terrorists are questioned extensively before being read Miranda rights
o FBI Memo contains factors to consider:
 Pending terrorist attacks
 Location, nature and threat regarding weapon
 Identities, locations, activities, and intentions of accomplices
o ACLU: “political theater” in the absence of a “clear problem”
Problem 8A-6 (p.800):
o Driver crashed into a fence; hethre the gun in some bushes because he was afraid it would be found
when the vehicle got towed; was told by worker that he saw a man run to the bushes and return to
the vehicle; another witness said he saw the man thrown an object to the bushes; saw that driver had
2 outstanding bench warrants; handcuffed him and placed him in cruiser; asked what he tossed in
the bushes – alcohol or a weapon; He said that it was a gun and said he’d show him right where it
is. Officer then read him his Miranda rights
o Holding: public safety exception applies
o A reasonable officer would have been concerned that the thrown object would be dangerous to the
public health.
o This was done to safeguard the public from some kind of harm. The suspect was demonstrating
suspicious behavior
o Look at public safety like “the possibility of a risk”
o Note: it doesn’t matter if officer was subjectively concerned about alcohol; what matters if
objectively there could have been a gun.
C. Miranda Custody
 For Miranda to apply, the suspect must be in custody
 Objective inquiry: viewpoint of “reasonable person in the suspect’s situation;” officer’s subjective intent
not relevant (Stansbury v. California (1994) (p. 737)
 totality-of-the-circumstances test
o Objective circumstances (like the size of the room); characteristics of the individual are generally
prohibited.

Two-Step Test  Howes v. Fields (2012) (p. 823):
o Incarcerated inmate removed from general population and taken to conference room in jail for
interrogation about another crime
o Imprisonment alone does not create a custodial interrogation!
 (1) less shock questioning someone in prison, (2) not lured into speaking by longing for a quick
release, (3) not likely to fear reprisal or hope for leniency.
o Step one: Would a reasonable person have felt at liberty to terminate the interrogation and
leave?
o Step two: Did the environment present the same inherently coercive pressures as the station
house questioning in Miranda?
o [Magical combination of Miranda: police domination & coercion]
46

Berkemer v. McCarthy (1984) (p. 802):
o Facts: car was weaving in and out of lanes; he was stopped; did a field test; he was asked if he was
taking intoxicants and said he consumed two beers and marijuana; was then formally arrested and
taking to police station; wasn’t given Miranda rights
o Traffic stops are generally not custodial – they are not the functional equivalent of a formal arrest;
motorist doesn’t feel completely at the mercy of the police; the traffic stop is more analogous to a
Terry stop which don’t get Miranda warnings
 Brief, public view, not “police dominated”
 BUT note: a traffic stop COULD become custodial

Oregon v. Mathiason (1977) (p. 809):
o Fact: suspect voluntarily came to the station house at officer’s request to answer questions
o The location of the questioning (e.g. stationhouse) is NOT dispositive of custody
o Compare: Orozco v. Texas (1969): it is midnight, cops go to his house, mom allows officers inside,
they go up to his bedroom and wake him up, tell him they think he was involved in a murder and
started questioning him, he incriminated himself  held to be custodial

Yarborough v. Alvarado (2004) (p. 823):
o Prior history with law enforcement is irrelevant  this is a “contingent psychological factor
o It would depend very much on individual circumstances; must be determined by objective criterion
and subjective criterion such as age and criminal history; police officers aren’t required to take into
account such contingent psychological factors

J.D.B. v. North Carolina (2011) (p. 809) (5-4):
o Facts: Thirteen-year-old was removed from school and questioned by the police for at least 20
minutes regarding two break ins and stolen items; the conference room was closed; he confessed
that he and a friend were responsible and was then informed he could refuse to answer questions
o A juvenile’s age MAY be relevant
o The closer the child is to the majority age, the less likely it would factor in at all
 This is about what an officer knew or should have known
 A child possess an incomplete ability to understand the world around them.
o Holding: a child’s age may “affect how a reasonable person” in the suspect’s poison “would
perceive his or her freedom to leave.
o
Dissent (Alito): Majority opens the floodgates; what’s next? Intelligence, education, cultural background?
o Note: in Miranda context, court hasn’t looked at mental impairment.

Problem 8B-6 (Applying JBD/Alvarado):
o Facts: JY, a 14-year-old boy, made statements to cops. They went to his aunt’s house and the aunt
called for the boy. They were there to interview about an alleged sexual assault. There were 2
interviews. First one was in the car where there were 2 other officers and a rifle in the back of the
SUV. The boy was made aware that he could leave at any time. He did leave and go back into the
house with the door open. The cop followed him on the threshold and said that he was lying and
urged him to come back to the car, which the boy listened to. (In real life, the cops said that the
same ground rules applied in the second interview) . Boy ultimately signed a 2-page statement. He
operates at a 6th grade level (ability to do age appropriate skills) and reads at a 2nd grade level
o Holding: Court found no custody! (as to his age, he was treated as 14yo)
47
D. Miranda Interrogation
 Rhode Island v. Innis (1980) (p. 833):
o Facts: After cops arrested a suspect, two cops put in a police car and were talking to each other. They
did not speak to suspect but stated that they needed to find the gun because one of the handicapped
kids may shoot themselves at the nearby school. After hearing this, the suspect said he could show
them where the gun is. They were only a mile away and turned the car around and got the gun
o Holding: No interrogation – officer’s conduct was just a few offhand remarks
 There was no express questioning or its “functional equivalent”
 Any words or actions on the part of the police that the police should know are reasonably likely to
elicit an incriminating response
 “subtle compulsion” is okay
o The focus is on the perceptions of suspect, not officers’ intent
 (but footnote 7, p. 837): Officer’s intent may have a bearing on whether the police should have
known that their words or actions were reasonably likely to evoke an incriminating response.
 Need  Preying on known “unusual susceptibility”, lengthy harangue, and particularly evocative
comments
o
o
Dissent (Marshall): standard is okay but this was an interrogation – blatant appeal to suspects conscience
Dissent (Stevens): prefers different standard – any statement understood by the average listener for a response  see pg.
842 examples
o Note: this could have been a Quarrels case- public safety- this case predates it.

Problem 8C-2 (pg. 852):
o Kade was arrested. After Miranda warnings, Detective spoke to him. Kade said that he did not want to
sign the waiver. Detective kept talking and D said he understood. Detective said that he hoped the gun
was not anywhere someone could get a hold of it and nobody else could get hurt. D kept going and
said that he did not mean for it to happen like that. Detective started to ask more questions and asked
whether his family knew that he was there. Kade then said he did not mean to do it again.
o There wasn’t another officer present here like in Innis.
o “… okay? All right”  translates into a “do you understand me” rather than an actual
question/interrogation  this didn’t amount to something that would illicit a response
o Innis  subtle compulsion is okay.
o Holding (5-2): NOT an interrogation; his words didn’t transform his non-question into a question.
 Everything here (minus the fact that there was no other officer) weighed in favor of finding no
interrogation

Illinois v. Perkins (1990) (p. 843):
o Facts: Someone is serving a sentence for burglary. His inmate is an informant. They placed an
undercover agent in the cell too. They got the guy to talk about a previous homicide which he was
involved in. No Miranda warnings were given
o Holding: No 5A violation
o Essential ingredients of a police-dominated atmosphere and compulsion are missing in undercover
o Technically in custody since not free to leave and was in prison for another charge but not Miranda
custody
o Concurrence (Brennan): 14A due process problem? Organized society shouldn’t countenance this kind
of trickery
o

Dissent (Marshall): Miranda should apply this brand of deceptive police conduct
Video Clip Example:
o The guy thought that he was talking to someone else locked up in jail. He didn’t know it was really an
officer. The (officer) said he was in there for fraud. This enhanced the chances of the guy telling him
his fraudulent beauty products business
48
o For custody:
 Would the person feel free to leave/end the questioning?
 Is it a police-dominated atmosphere?
  Guy didn’t know this was a cop
 Analogous to Illinois v. Perkins- coercion/ police domination doesn’t exist when
you think you’re talking to a friend.

Arizona v. Fulminate (1991) (p.850):
o Facts: This is the case where the guy killed his stepdaughter in NJ but incarcerated in Arizona
o Holding: No 5A violation because undercover
o Miranda rights were not implicated because he was not aware that he was speaking to an agent and
thought he was speaking to another inmate
o No 6A because he was not asked about the crime that he was in for
E. Providing Miranda Warnings  Must “Reasonable Convey” Miranda warnings
 Prystock (p. 857): You will have a [free] attorney when you go to court and can have one now (during
custodial interrogation), if you wish  not artful but this was reasonably clear!
 Duckworth (p.858): “We have no way of giving you lawyer, but one will be appointed for you, if you
wish, if and when you go to court.”
o SCOTUS said this was okay because it adequately described Indiana’s procedure  Indiana
process doesn’t lawyer if D wants one during custody, then they just reserve questions for trial.
 Powell (p.858): “You have the right to talk to a lawyer before answering any of our questions.”
o Not terribly clear, but reasonably conveys the rights.
F. Waiving Miranda Rights
 North Carolina v. Butler (p. 862, 868)  An Implied Waiver
o Facts: Suspect said he understood his rights and was presented with a waiver form. He responded: “I
will talk to you but I am not signing any form.” He then made inculpatory statements.
o Waiver can be inferred from a “course of conduct” – i.e., “the actions and words of the person
interrogated.”
 Did not get an express waiver here but okay because he understood the rights and chose to speak to
the cops even if he would not actually execute the form
o

Dissent: favors express waiver
Berghuis v. Thompkins (2010) (5-4) (p. 859)  Waiver of Silence
o Facts: The way the person conducted himself created a controversy. In the 3 hours, D did not say
anything during the interrogation. He did not say he wanted to remain silent. During the 3 hours, they
kept asking him questions but to no avail. He did sometimes shake his head to the questions and
answered yes or no. When officer asked, “Do you pray to God to forgive you for shooting that boy
down,” D said yes
o This was an uncoerced statement in response to question about God.
o Holding: No violation; there was a waiver of silence
o When Miranda rights are given and understood by the suspect, an accused’s uncoerced statement
establishes an implied waiver of the right to remain silent.
o In theory, you could neither invoke nor waive but a case like this one makes it hard for the Defendant.
o
Dissent (Sotomayor): a single inculpatory statement is not the “course of conduct” proving implied waiver
49
G. Knowing and Intelligent Waiver  Standard for Miranda Waiver
 A suspect must understand his rights and the consequences of abandoning them
 Moran v. Burbine (p.869):
o Facts: the suspect was not informed of his attorney’s phone call to the police station (a controversial
case); there was deception by omission to the suspect as well as the attorney (b/c attorney was told that
suspect would not be interrogated that day.
o Interactions between the officers and the attorney, which were unknown to D, could not impact on the
validity of D’s waiver
o D understood his rights and the consequences of abandoning them by making incriminating statements
and was not being forced to do anything he does not want to do; just did not know the lawyer called
o Holding: Valid waiver
o Herein: the “wisdom” of a Miranda wavier versus its “knowing and intelligent nature”
o NOTE: In Dicta, Court said that there would be a 6th amendment issue here, can’t allow what the
police did under the 6th amendment!!

Colorado v. Spring (p.868):
o Fats: suspect not told of the subject matter of the interrogation
o Holding: No 5A violation even if you are unaware of what you are being questioned about
o Awareness of the crimes that will be the subject of an interrogation is not necessary for a valid
Miranda Waiver.
o Defendant was thrown off his game but that does not undercut the fact that he understood his rights and
the consequences of abandoning them
o The right is general and not offense-specific

Connecticut v. Barrett (p. 870):  “partial waiver”
o Facts: “I’ll tell you but won’t write without my lawyer”
o Takeaway: your waiver can be “knowing and intelligent” even if you are not

Colorado v. Connelly revisited (p. 871):  a “voluntary” waiver
o Voluntary= no government coercion
o Remember: God is not a government agent!
o Also: waiver burden is on the prosecution by a PREPONDERANCE OF THE EVIDENCE

Problem 8D-6 (p. 876):
o Facts: Mariano was arrested. He was questioned by Detective Madron. Madron first sought oral
assurances that he was not impaired by drugs, alcohol, or injury and that he could understand what was
being asked. Mariano was a native Spanish speaker. Madron gave him a standard federal form
containing his Miranda warnings in Spanish. The first part was the Declaration of Rights and the
second was a waiver of those rights. Mariano did not read the second part and Mariano was asked to
read them out loud. Mariano initialed the statements indicating that he understood each advisement.
Mariano listened and kept saying yes and initialed. After reading that he had the right to an appointed
attorney, he said, “Yes, I don’t have any money to pay a lawyer.” He then signed everything and made
incriminating statements; Mariano had three years of formal schooling. He had difficulty pronouncing
“large words.” He had trouble understanding that U.d. was an abbreviation for “usted”, but Detective
Madron told him.
o Holding: No 5A violation
o It was a “knowing and intelligent” waiver because gone over multiple times and was explained
thoroughly
 The officer was really careful  this met the preponderance statement.
o Note: his statement about not having money for a lawyer was too ambiguous to be an invocation
50
H. Miranda: Invocation of Protections  Invoking the right to Remain Silent
 Berghuis v. Thompkins (2010) (p.902):
o Defendant argued that he had invoked his right to remain silent for a considerable amount of time
while officers attempted to interrogate him
o Holding: No; Need an unambiguous assertion
o Sotomayor: oxymoronic that suspect must speak to express his desire to be silent

Michigan v. Mosely (1975) (p. 877):  Respecting the Invocation
o Facts: They waited 2 hours and a different officer came in every two hours. They moved him to a
different place. They asked him about a different crime. They re-Mirandized him
o Standard: Has the right to cut off questioning been “scrupulously honored?”
o Holding: Here, yes
 D’s rights were honored because the interrogation ceased as soon as he said he did not want
to continue and he was re-Mirandized when it began again and there was time in between
o Note: DON’T need these factors to satisfy Mosely’s “scrupulously honored” standard

Problem 8E-14 (p. 911)  Applying Mosely
o Facts: There were different officers, new set of Miranda and waiver given, 20 mins in between the
interrogations, but It was in the same location and the subjects were not of a different crime
o These facts are much more typical than what happened in Mosely
o Holding: The officers scrupulously honored his invocation nothing that the 20 mins was a lot less, but
not impermissible; (also, no clear invocation for lawyer)
o Note: the initial handcuffing was for Terry-safety purposes, not for formal custody; Not under
custody here until formally arrested.
I. Invoking the Right to Counsel
 Edwards v. Arizona (1981) (p. 886):
o Facts: Edwards was arrested for _____. He was questioned and did not say anything incriminating. He
then invoked his right to counsel. He was in jail. The next day, 2 officers came back to him and they said
he had to talk to them. He was re-Mirandized and he waived. He said he would talk but did not want to
be taped. He made incriminating statements the second time
o Holding: 5th Amendment violation
o “An accused… having his desire to deal with the police only through counsel, is not subject to further
interrogation… until counsel has been available to him, unless he initiates further communication,
exchanges, or conversations with the police.”
o Note: right to silence and right to counsel are DIFFERENT!
 Right to remain silent is a temporary halt to interrogation’
 This wouldn’t have been an issue if he simply invoked his right to remain silent.
o  If person requests a lawyer, they should be left with the sense that it’ll be respected by law
enforcement.

Options after Miranda Warnings are Given:
o 1. Waive right to remain silent
o 2. Invoke right to remain silent
o 3. Invoke the right to counsel
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

Smith v. Illinois (p. 901):
o Facts: He was confused, but he said, “I’d like to do that” in response to the being told he has the right to
a lawyer
o Holding: This was NOT ambiguous
o Standard: unambiguous request for counsel and anything after doesn’t matter (unless clearly initiated)
McNeil (902): invocation under 6th amendment at arraignment does NOT constitute invocation for 5th
Amendment Miranda purposes

Bradshaw (p. 903): “what is going to happen to me now”
o Holding: validly waived his rights because this was enough for initiation

Shatzer (p. 905):
o Suspect, who resides in general population, requested counsel during interrogation. 2.5 years later, he
waived during a subsequent interrogation
o Generally, break in custody means going home but here, prison was home
o Court must balance honoring invocation & time limit for invocation
o Holding: No 5th Amendment violation
 14-day time period (break in custody) is what will be honored and then questioning could be reinitiated without first providing counsel – enough time to get re-acclimated to normal life with
friends and counsel, and shake off any residual coercive effects of prior custody
 On the 15th day, you can try to get a waiver!

Arizona v. Roberson: (p.907)
o Facts: asked for a lawyer, 3 days later he was questioned by a different officer about a different offense.
This was not allowed unless the suspect initiated it.
o Note: the “non-offense-specific” nature of a request for counsel under Miranda (contra: Sixth
Amendment right to counsel)


Minnick v. Mississippi (1990) (p. 908):
o Facts: D escaped from jail and broke into a mobile home and stole weapons. D was arrested,
interrogated, and asked for counsel. Attorney met and spoke with him. 3 days later, separate law
enforcement arrived to question him
o Holding: 5A violation because although they provided him with counsel, mere consultation is not
enough to remove the pressures inherent in custody nor terminate Edwards protections
 Officials cannot reinitiate interrogation without counsel present, whether or not the accused has
consulted with his authority
BOTTOM LINE:
o Cannot talk to suspect who invokes 5th Amendment right to counsel UNLESS
 You wait 14 days and then the clock restarts OR
 The suspect initiates
o [Review Edwards Worksheet]
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CONFESSIONS AND RIGHT TO ASSISTANCE FROM COUNSEL – 6TH AM.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the
state and district wherein the crime shall have been committed, … and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; … and to have the assistance of counsel for his defense.
(emphasis added)

It attaches after the initiation of formal charges (e.g. indictment, “criminal information” filed to the court)
A. 6th Amendment Right to Counsel
 Massiah v. United States (1964) (p.930):
o Fact: Massiah was indicted b/c of drugs. He had a lawyer and pled not guilty and was released on bail.
He met up with a co-defendant and was unaware that he was cooperating. D made incriminating
admissions in a bugged car to co-defendant. Gov. wants to use those statements against him; was a
“Secret interrogation”
o Rule: unconstitutional to have any secret interrogation of D. after he is formally charged, w/ out the
presence of counsel
o Holding: Violated the 6th Amendment  incriminating statements deliberately elicited by law
enforcement post-indictment
o Note: no 5th Amendment issue because he wasn’t talking to an officer, he was talking to his friend
o Right to Counsel under 6th Amendment is automatic  doesn’t have to be invoked like the 5th
B. 6th Amendment  “offense-specific” nature
 Texas v. Cobb (2001) (p. 938) (5-4):
o Facts: D was indicted for burglary. He got a lawyer. He was released on bond in burglary case. His
father told cops that he murdered the woman and child. D was read his Miranda rights. D showed the
location of the dead body and answered questions
o Issue: If 6A attached to burglary, does it also prohibit uncounseled questioning about the “factually
interwoven” felony murder?
o Holding: No (right to counsel didn’t attach to the murder offense). Blockburger “same elements” test
used in double jeopardy context applies
 Offense one has elements: ABC; Offense two has elements: BCD  then this doesn’t violate
Blockburger test
 The fact that the crimes stemmed from the same events doesn’t matter
o Rule: When 6th Amendment right to counsel attaches, it encompasses offenses that even if not formally
charged, would be considered the SAME offense under the Block burger test
 If not the same offense, then it is fair game to question without counsel regarding that
different crime!
C. Waiver of the 6th Amendment Right to Counsel
 Brewer v. Williams (1977) (p. 960) (5-4):
o Facts: D was a mentally ill religious patient who murdered a girl. He was booked and read his rights.
He had 2 lawyers in 2 different cities and was traveling between the two. Both lawyers made it clear
that no questions should be asked in the car ride and there was an agreement with the cop about that.
He said that he would say the whole story when he got to his destination and his lawyer was present.
The cop gave him the Christian Burial Speech knowing that the man was religious. D then showed
the cop the body
 Religious references – “Christian burial speech”
 References to the weather – “It’s raining, it’s sleeting, it’s freezing, driving is very treacherous”
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

Concerned that weather forecast might make it harder to find the body
Williams’ references to his attorney – Can argue both ways since may be waiver if he knew and
understood the importance of a lawyer or not waiver because he kept asking for his lawyers
o Court uses Zerbst waiver standard (1938): intentional relinquishment or abandonment of a known
right or privilege
o Holding: 6A violation:  Court finds deliberate elicitation for incriminating information
 Issue here was too much pressure/involvement by the officers.
 In this case, 6A puts the focus squarely on officer’s intent (which does matter for 5A)
 6A asks whether or not the conduct was deliberately elicited. In Innis, the focus is whether or not
the words and actions were to get a deliberate response
o

Dissent (White): Majority is effectively requiring and express waiver of the right to counsel; if all he did was NOT a
waiver of the right to counsel, then what would be?
Waiver (cont.)
o More recent opinions use knowing, intelligent and voluntary standard (as in Miranda)
o Generally, giving an accused Miranda warnings after formal charging sufficiently conveys 6th
Amendment right to counsel, such that Miranda waiver also waives 6th Amendment right to counsel
 Exception: Moran v. Burvine where suspect was not informed of his attorney’s phone call to the
police station; this does not violate 5A but in Court’s opinion in dicta, it would violate 6A.
D. Invocation of the 6th Amendment Right to Counsel
 Unlike the 5A Miranda context, you do not need to request counsel in the 6A context; once the right
attaches, it protects you without regard to invocation. (Massiah)
 Montejo v. Louisiana (2009) (p. 974): A suspect’s request for counsel at an arraignment no longer
impedes the ability of law enforcement officers to initiate efforts to obtain a waiver of counsel and
secure disclosures from an unassisted accused. For Sixth Amendment purposes, an unambiguous
invocation of the right to counsel does not erect any additional barrier to the validity of a waiver.
o The only question is whether the accused knowingly and voluntarily relinquished the right to
assistance
E. Interplay of 5th Amendment and 6th Amendment:
 Hypo: Suspect is custodially interrogated and invokes the right to counsel, 14-day clock starts, a few
days later he is arraigned, the 14-day clock forbids the police from interrogating the suspect without
counsel about the same offense within those 14 days. Any waiver during that period is invalidated
because Shazer does not allow for it!
o But Note: the suspect may still initiate it! Then waiver would be fine
 After 14-days, fresh start.
F. Edwards, its progeny and the 6th Amendment Handout:
1. Is Red’s statement admissible as to his whereabouts at the time Blue was killed?
a. Need custody + interrogation to implicate Miranda warning
i. For custody (2-part test):
1. Freedom to leave  was in elevator, and was arrested
2. Police dominated  2 officers with him
ii. He didn’t get Miranda warnings before making these statements  not admissible!
2. If Red’s statement as to his whereabouts is deemed admissible, are the confessions as to the murders
of Blue and Violet admissible? Why or why not?
a. “I’m thinking I might want to consult with my lawyer before going on”
i. Compare to Smith v. Illinois  “yeah. I’d like to do that.”  this was an affirmative statement.
ii. In another case suspect said: maybe I want a lawyer  wasn’t enough!
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iii. Here, NOT an affirmative statement – “thinking… might…” – Didn’t invoke lawyer!
iv. (Assuming he did invoke the right to counsel, there would be no problem with the officer’s
statement “but we can do more to help you if you work with us” – no coercive. No interrogation
b. As to Miranda wavier, Standard is “knowing and intelligent; burden on the prosecutionpreponderance of the evidence.
i. Here, signed waiver form (but remember cases that even refusal to sign waiver but oral waiver
is fine – partial waiver). He was informed and waived Miranda rights.
ii. Remember: despite the lack of invocation for a lawyer, the government still has the burden to
show waiver by a preponderance
iii. No issue about lying to lawyer: doesn’t impact the suspect’s right to knowingly and intelligently
waive his right.
c. Both admissible because the 5th amendment does NOT distinguish crimes!!
3. If Red had been indicted for the murder of Blue before his arrival at the station house, would admitting
Red’s confessions violate the 6th Amendment?
a. The 6th Amendment is crime specific:
i. Questioning about Violent (6th Amendment doesn’t tough that because it is a totally different
crime (it was a different person – even though it was both murders).
ii. Questioning about Blue,
1. In Dicta, this will violate the SIXTH amendment, not the 5th!
2. Moran v. Burbine can’t waive 6th amendment in THIS context, if someone’s lawyer
calls in to be present, lying by cops to lawyer, violates the 6th Amendment
3. Note: since interrogated after indictment, the 5th and 6th apply  the statements as to
Blue wouldn’t come in because NOT ALLOWED under 6th (even if okay under 5th)


IDENTIFICATIONS
There are two challenges to Identifications: right to counsel and due process
Three types of identifications:
o Line-ups
o Show-ups  shown one person. Most suggestive of all.
o Photo arrays
A. Identifications and Counsel
 U.S. v. Wade (1967) (p.988):
o Facts: Everyone in the line-up was forced to put tape on their face and say put money in the bag. This
is because the suspect here robbed a bank and the bank employees that saw said he wore tape and
made that statement. They tried to re-create what happened. They added vocalization because it was to
identify a physical characteristic of his voice
o No 5A violation- standing in lineup is not testimonial, so no self-incrimination issue
 Displaying one’s physical characteristics versus “testimonial communication”  simple
identification process
o 6th Amendment issue:  need lawyer at lineup
 critical versus preparatory stage
 Critical: implicates right to a fair trial.
 Herein: potential for abuse/unfair suggestion; limited ability to reconstruct!!
 With attorney present at lineup procedure, can prevent unfairness
o BUT, if there is clear and convincing evidence that in-court identification had an independent source,
then its OK (despite the absence of lawyer)
 Factors to help prove “independent source” (usually from memory of the event:
 Lighting, time, obstructed view, face-to-face encounter
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
o
Court makes it seem like a heavy burden but in reality, it is easy to satisfy – (judge simply asks if
you are sure)
White (dissent): allowing counsel to be present will have a negative impact on “truthful fact-finding”

Kirby v. Illinois (1972): No 6th Amendment right to counsel at identification before formal charging!!

United States v. Ash (1973) (p. 1012):
o Holding: No 6th Amendment right to counsel at photo arrays
o There is no 6A right to counsel at photo arrays
 There is no trial-like confrontation with adversary so it does not implicate right to a fair trial
 In the photo array, the accused’s photo is there with the adversary but the accused is elsewhere
(unlike being on the other side of the wall
 Fewer possibilities of impermissible suggestion
 Any misconduct can be “readily reconstructed” by witness although witness may not remember
details

Strategy of which procedures to use as a prosecutor:
o Before indictment, lineup (no lawyer required)
o After indictment, photo array (b/c 6th A doesn’t apply – so no lawyer present)
o If there was a flawed prosecutorial process, but there is clear and convincing evidence that the in-court
ID is based on an independent source, then the person takes the stand.

Problem 10-2 (p. 1025):
o Facts: D was arrested for rape and robbery. The police conducted a live voice-line-up where they
observed D and the people in the line-up also repeated the words spoken by the victim’s attacker.
Since the victim’s eyes were covered during the attack, she was unable to make a visual identification.
Based on the voices, she concluded that her attacker could have either been D or one other participant
in the line-up. D did not have a lawyer at this time. Over 2 months later, after an indictment, the victim
listened to an audio tape of the original line-up and positively identified D as her assailant. D nor his
attorney was present at the audio tape replay. At trial, the prosecution presented a video tape (with
sound) of the line-up to the jury; again, the victim identified D on the basis of his voice. D was
convicted of rape and robbery
o Issue: Does the D have a valid 6A objection to any of the 3 identification procedures?
 No – they are all admissible
o The initial “live” voice line-up
 No – this was done before formal charges were brought; 6th Amendment doesn’t apply (so no
lawyer needed); No 5th amendment implication either – wasn’t testimonial
o The audio replay of the line-up about 2 months later
 No – this is similar reasoning to why the 6A right to counsel does not apply to a photo array
where adversary is not there and you are just putting a voice; no trial-like confrontation; this
was static; no one is being misled
o The video with sound presented at trial
 No – the counsel is present and thus has the right to cross-examine the person
o Note: filming of line up without lawyer (before indictment), then used later on, would be okay—
like photo array
  court seems to require an almost literal “face to face” – not virtual.
B. Identifications and Due Process
 Stovall v. Denno (1967) (p.1030):
56
o Facts: A man was stabbed to death in his home. His wife attacked assailant while he was stabbing
her husband. She was stabbed 11 times but she survived. While in the hospital, the suspect was
brought there in handcuffs. She identified him as the one who did it. She said perpetrator was black
and he was the only black person in the room. He also uttered words for voice identification and he
did and she identified him. She survived and was put on stand at trial. She was asked for a show-up
at trial and she said yes. D moved to have this suppressed.
o Standard: So unnecessarily suggestive and conducive to irreparable mistaken identification
o Violation of Due Process depends on the totality of the circumstances
o Holding: No Due Process Violation
o Reasoning: It was suggestive, but it was NOT unnecessary because she was the only witness, no one
knew how long she would live, and this was therefore the only feasible procedure

Foster v. California: (1969) (p.1032)
o Facts: There is a 3 man line-up where the two other men were 6 inches shorter than the accused. The
accused was in the middle of the line-up. They asked the witness if he could identify the person. The
witness said he was not sure. They then tried a show-up by bringing the accused in and asking if he
was the perpetrator. The witness said he was not sure. 10 days later, they brought the witness back a
third time and put the accused in a 5 person line-up where he was the only person
o Holding: collectively, these identifications violated due process
o ONLY time SCOTUS found DP violation

Manson v. Brathwaite (1977) (p.1033) –issue- admissibility of “photo show-up”
o Facts: Undercover cop goes to an apartment to buy drugs from a known drug dealer. Knocks on the
door which opens up. They give money and get the drugs. Cop did not have previous interactions
with the D. he described to another cop immediately after. The officer gives him a photo based on
the description. He testified at trial 8 months later
o Standard: When a pretrial identification procedure is “unnecessarily suggestive,” weigh
“corrupting effect” against reliability to determine if there is a due process violation
o It was perhaps unnecessary and suggestive but it was weighed against the reliability
o FACTORS of RELIABILITY:
 Witness’ opportunity to view the suspect at the crime scene: 2-3 minutes of viewing with
natural light
 Witness’ degree of attention: witness is a cop who is trained for this
 Accuracy of the witness’ description: given minutes after the incident
 Witness’ level of certainty: positive assurance was given by the cop
 Amount of time between the crime and pretrial identification: 2 days in between, not
long
o The more egregious the implantment by the prosecution, the harder it will be to rectify the
procedure!
o Holding: no due process violation
C. Admissibility
 Exclusion of pretrial identification is warranted if, based on a totality of the circumstances, after
balancing the identification corrupting effect, the court concludes that there is a substantial likelihood
of misidentification
 Note: that if it is reliable, it fails the substantial likelihood of misidentification test
 Similar to 6A where a “clear and convincing evidence” of “independence source” is needed vs.
“reliability to counteract substantial likelihood of misidentification”
57

Perry v. New Hampshire (2012) (p.1047):
o Facts: There was a report about a car theft in a neighborhood. They found D in the lot. Resident said
that his car was broken in. Officer stayed with him. Another officer went to talk to resident who
called. Neighbor was in kitchen and looked out and said that D did it. This was not intentionally
arranged by law enforcement
o Balancing not even required here, because law enforcement did not create the identification
o Herein:
 “Unnecessarily suggestive circumstances” that happen spontaneously= no balancing
 “unnecessarily suggestive circumstances arranged by law enforcement” = balancing

State v. Henderson (NJ 2011) (p. 1049):
o Some evidence of suggestiveness triggers hearing
o Enhanced jury instructions on eyewitness identifications – variables that affect memory (e.g., stress,
presence of weapon, duration, distance, lighting, witness’ age, race bias)

Identifications and then some Hypo:
o 1. (a)6th Amendment issue: No counsel and no independent source; based on the collective, It didn’t
seem like independent source – (kept singling the guy out like Foster).
 Note: you look only at the time of actual identification was made post formal chagess. But to
see if there was an independent source you can look at the collective
o 1. (b) so unnecessarily suggestive
o 2. Invocation for lawyer  calls his lawyer, which means cops have to stop questioning until
attorney comes, but he made a spontaneous utterance – “I don’t want to…” which is not a product of
interrogation
o 3. Yes. Undercover – need a lawyer
o 4. No this is a different crime
o 5. No because there is no coercion – (Perkins) – “no police-dominated/coercion”
EXCLUSIONARY RULE
A. Basics of Exclusionary Rule
 Exclude evidence based on constitutional violation generally UNLESS an exception applies:
o Standing
o Independent source
o Inevitable discovery
o Attenuation

Mapp v. Ohio (1961) (p.1068):
o Held: Wolf v. Colorado (1949) overruled  exclusionary rule is “an essential part” of the 4A
o Exclusionary rule is an essential part of the 4th Amendment and it applies to all state court proceedings
o Court Reasoning: deterrence, judicial integrity, state/federal symmetry, symmetry with treatment of other
constitutional violations (e.g. coerced confessions under Brown, Ashcraft, Spano)
o
Dissent (Harlan): evidence obtained in violation of 4A is not analogous to coerced confessions
B. Fourth Amendment “Standing”
 Historical Evolution: Pre-Katz cases:
o Pre-1960: ownership/possession of property seized; possessory interest in area searched
 Jones v. United States (1960) (p. 1102):
o Guest in apartment where contraband was found
o Court held: there was standing because he was “legitimately on the premises”
58
o Also, automatic standing for possessory offenses

Simmons (1968):
o Man was charged with armed robbery, which is a non-possessory offense so no automatic standing; cops
went to mother’s house where he does not live and found suitcase with the guns; he was not
automatically on the premises either
o Issue: in order to gain standing, he has to say that it is his suitcase but that incriminates himself
o Holding: D’s admission at a suppression hearing could not be used as substantive proof of guilt at trial
– should not have to choose one right over the other

Rakas v. Illinois (1978) (p. 1087): car passenger has no expectation of privacy in a car so no standing
o Context: contraband in car belonging to passengers; they claimed a 4A violation and motioned to
suppress the contraband
o Note: this was a post-Katz case – so the focus is on privacy interests
o Standing options: “legitimately on the premises”, “target” theory, legitimate expectation of privacy in
the area searched  court picked legitimate expectation of privacy
 Same standard as Katz; so do not really need the concept of standing
 No implication of 4A rights if there is no expectation of privacy
o Holding: no standing because passenger has no expectation of privacy in the area searched
o [Note: could be different result if this was a couple/shared car – there would be an expect.]

Rawlings v. Kentucky (1980) (p. 1101): defendant’s drugs found in girlfriend’s purse
o D had no expectation of privacy in her purse
o Ownership of the property seized as a RESULT of the search does not entitle the individual to challenge
the search.
United States v. Salvucci (1980) (p.1102): gets rid of automatic standing; but doesn’t matter after Simmons.
United States v. Payner (1980) (p.1103): deliberate, unlawful search of banker’s briefcase for incriminating
info about bank’s customers
o The IRS knew that the customers would have no standing because they had no privacy interest in the
briefcase.
o Note: if a state system is offended by Payner, they can use their state constitution to disallow it.



Brendlin v. California (2007) (p.1102):  passenger is allowed to challenge the STOP of the car
o Held: In a traffic stop, both driver and passengers are seized; therefore, either can challenge the stop in
court
 But under Rakas, passenger can’t challenge the search
o Hypo: if passenger wants to leave from stop, (in dicta), court has said that the cop may have limited
ability to stop passenger from leaving for safety reasons
o Hypo: car is pulled over, passenger doesn’t leave, search incriminates passenger. What result if
passenger claims 4A violation in stop which led to the search?
 One argument is “but for” causation should be excluded
 The other is that these two events are constitutionally distinct/ too attenuated  shouldn’t be
excluded
o Supreme Court hasn’t rule don this issue yet.
C. Standing and Guests
 Minnesota v. Olson (1990):
o Overnight guests have standing to object to search of residence
 Owner gave him a key
 Authority to admit or refuse others
59


Note: privacy will depend on guest’s access to areas of house (common, non-private areas)
Minnesota v. Carter (1998) (p.1104):
o Facts: There was a purely commercial transaction occurring. D was present in the apartment for 2.5
hours. They were “invitees” who had no relationship with the resident
o Holding (Rehnquist): No standing here
o Concurrence (Scalia): privacy extends to residents only
o Concurrence(Kennedy): Social guests have legitimate privacy expectation unless “fleeting and
insubstantial connection” to residence
o
Dissent (Ginsburg, Stevens, Souter, Breyer): social guests have standing
o  NOTE: 5 votes on the court for giving social guests SOME standing (Kennedy + the 4
dissenters)  based on the votes from Carter.

Problem 13-A8 (1118):
o Holding: First, Court determined that the area was curtilage (not open fields), and second, the court read
Carter by adding up the votes and found that Kingston had standing because he did not have a “fleeting
and insubstantial connection” to residence
 They were working on projects together
 This was not a one-time thing/relationship

Problem 13A-6 (p.1117) (Note: protection of a home extends to the home):
o Facts: 21 year-old Mark booked a hotel for 3 nights through Expedia for a weekend. He pre-paid by
credit card. He arrived on 6/17 and was assigned to room 718. He signed a registration notice that said
that everyone had to comply with all laws and rules and regulations or else they could be asked to leave.
At 2:30 am, 2 women and 4 men entered the lobby and seemed drunk, looking for Mark. They were
misbehaving and Mark asked them to leave and they complied. The manager warned Mark that if there
was one more complaint, he had to go. That day, someone complained of weed outside his room. The
manager knocked and no one answered so he used a master key and saw no one inside. He saw weed
evidence and kicked Mark out with a double-lock. He informs the cops and cop come sin and searches
and finds more weed and gun in the bathroom floor. Mark comes back and is arrested. He broke the
hotel’s policies because he signed the notice not to break any laws – lawful eviction
o Issue: Did the hotel’s actions implicate Mark’s 4A rights? (Did Mark have “standing” to challenge the
search(es) of his hotel room?
o Note: Prior case law establishes that paying guests have a 4A privacy interest in their hotel rooms
o Court found no expectation of privacy at the time of the search because he was lawfully evicted (b/c he
was previously warned before and went MIA) which extinguished any privacy right in the room
o If you are paying for a hotel room, you have privacy rights during the period for which you are paying
money but he signed the registration card saying that he had to follow the law
o Found unclosed backpack (plain view doctrine) & it was escalating cause (like T.L.O.) each thing found
exposed the other
D. Direct vs. Derivative Evidence
 Direct- evidence DIRECTLY linked to the constitutional violation
o Examples: evidence gathered pursuant to a search warrant that violates the Fourth Amendment;
incriminating statements obtained in violation of Miranda.
 Derivative/Secondary- “fruit of the poisonous tree”
o Evidence (physical or testimonial) obtained by exploiting prior unconstitutional conduct.
o Examples: a confession obtained as a result of an earlier unlawful arrest (Wong Sun); the discovery of
the girl’s body in Brewer.
 Note: Nix case: the confession is direct, the body is derivative.
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E. The “Independent Source” Doctrine
 Type #1:
o Unlawful entry
o Evidence is subsequently discovered for the first time under search warrant that is not based on
information obtained through the unlawful entry (Segura v. United States (1984)).
o Ex- during an unlawful entry, cops discover X and Y; later, there is a search pursuant to a warrant for
the same location which leads to Z
 Presupposes a separate warrant process with different cops
 Must have discovered Z without X and Y
 Type #2:  Murray v. United States (1988) (p.1122)
o Unlawful entry
o Evidence first discovered during unlawful entry is subsequently rediscovered and seized under search
warrant issued without reference to information acquired through the unlawful entry.
o Held (Scalia): The independent source doctrine applies “so long as a later, lawful seizure is genuinely
independent of an earlier, tainted one”
 Information acquitted during unlawful entry is not used to obtain warrant
 Officer’s decision to obtain warrant was not based on information acquired through the
unlawful entry (based on surveillance, bales found in search of car, etc.)
o
Dissent (Marshall): encourages “confirmatory” searches
F. The “Inevitable Discovery” Doctrine
 Nix v. Williams (1984) (p.1129):
o Remember from Brewer v. Williams: his confession was unlawful because violated 6A right to counsel;
so body that was eventually found was fruit of the poisonous tree
o Court first points out this is not independent discovery, because the body is no lawfully rediscovered
(“reseized”)
o Held: BUT, the body is admissible because it would have necessarily have been discovered through
lawful means since the search party would have found it anyway along their route
o Standard: admissible if it would have necessarily have been discovered through lawful means
 Government must prove by a preponderance of the evidence
 No absence-of-bad-faith requirement  officer intent becomes irrelevant
o
o

Concurrence: Inevitable discovery of body means no taint from constitutional violation; detective’s good or bad faith is,
therefore, “simply irrelevant”
Dissent: Agrees with rule but would have used “clear and convincing” evidence standard since evidence was not in fact
rediscovered by lawful means
Problem 13-B-8 (p.1114):
o Cop pulls over couple. He checks license information and thinks something is fishy. He asks wife, who
had the lease of the car, to search the car and she agreed. He opened the trunk after she gave him the
keys. He went through the bag and felt the black envelope in the man’s garment bag and asked the man
what it was once he realized it was his. The man said he did not want the bag opened. Cop said he
would call a drug dog. Man said there was contraband.
o Const. violation was that the consent was not valid (Court found this coercive – but note that must
courts would not find this to be coercive)
o Holding: SO, we have to know if finding the drugs was inevitable given the fact the cops said the dogs
were coming YES, it was inevitable!
 This is not prolonging the stop because this is an independent, individualized suspicion case
(Terry kicks in) to believe there was contraband in the car and so not unreasonable search
(evasive conduct, fishy story about driving and who was driving, they gave him a summons, etc.
= collective reasonable suspicion satisfied)
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G. The “Attenuation” Doctrine:
 Wong Sun v. United States (1963) (p.1146):
o Standard: whether, granting establishment of the primary illegality, the evidence… has been
come at by exploitation of that illegality or instead by means sufficiently distinguishable to be
purged of the primary taint
o Compare herein: Toy’s incriminating statement versus Wong Sun’s confession and heroin
o Wong Sun was arrested and released and later returned voluntarily to make a statement
 This was attenuated in time and place from his unconstitutional event
 Mr. Wong Sun was not reacting to what happened days earlier with the prior arrest and looks like
this was a product of his own free will and what he chose to do with the passage of time and
consultation with his lawyer
 Note: Using Brown factors (even though this case came later), you still reach the same result:
 The temporal proximity was a few days later
 Being able to confer with an attorney and being at home was a significant intervening event
 It was pretty flagrant what they did to Toy but the factors get weighed in favor of cops

Hypo: if someone was illegally arrested, released, and 2 months later the confessed voluntarily  clear
attenuation

Brown v. Illinois (1975) (p.1150):
o Facts: Arrest was unconstitutional; brought to station where he was given Miranda warnings; then he
confessed.
o Holding: Lower court erred in assuming that the Miranda warnings by themselves always purge the
taint of an illegal arrest
o Factors:
o The temporal proximity of the unconstitutional conduct to the acquisition of the evidence
 There were only 2 hours in between
o Whether any significant events have intervened between the illegality and the acquisition of the
evidence; and
 Miranda warning may be “significant” but not when weighed against the other factors
o The purpose and flagrancy of the misconduct
 Cops admitted this was intentional as opposed to a negligent mistake; very flagrant here

Utah v. Strieff (2016) (5-3) (p.1162):
o Facts: illegal stop turns up outstanding arrest warrant; contraband found in search incident to arrest
o Brown factors allow the evidence to be admitted through attenuation”
 The evidence was found only minutes after the illegal stop
 The intervening factor of there being an arrest warrant out for him
 [Note: there is a “but-for” causation between the illegal stop and the arrest warrant,
but it is as if the arrest warrant breaks the chain]
 This was an isolated instance of negligence in connection with a bonafide investigation
o

Dissent (Kagan): argues that this decision incentivizes officers to make unlawful stops for investigative reasons
Problem 13C-7 (p.1184) – Court of Appeals of NY (4-3):
o Facts: They had tracked the laptop to the house, they entered the vestibule without a warrant and without
a knocking and announcing their presence the sister was thankful they were there b/c she was going to
call them anyways b/c her brother was acting up, the officers go to one of the brother’s rooms and from
the hallway they see the stolen laptop. LeRoi says, that’s my laptop. My friend stole it.”
o 1. Very short amount of time between the unlawful entry and the confession
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o 2. The sister consented and welcomed the officers into the house
o 3. This was purposeful
o  Majority held: her consent was highly relevant and significant and overcame the other factors – ruled
in favor of state; Minority: needed more than happenstance consent
o Question re: sister’s actual/apparent authority: she let them in the house and the officers saw the laptop in
the room as they were standing in the hallway; she can give authority to common areas of house – no
problem.

Hudson v. Michigan (2006) (p.1164):  2 types of attenuation & exclusionary rule balancing
o Facts: Police had a warrant to search for drugs and firearms, but the police only waited 3 to 5 seconds
after announcing their presence before turning the doorknob and entering
o Holding: The exclusionary rule does not apply to knock and announce violations. Reasons:
 1. No “but-for” causal link between the constitutional violation and the evidence discovered
 [herein: one, indivisible 4A wrong versus two separate 4A events, one permissible
and one not]
  the evidence was going to be found anyways
 2. There is direct causal relation (but-for causation) but either:
 the causal link was too attenuated to justify exclusion (Wong Sun; Strieff
[‘unconnected’]) OR
 exclusion does not serve the interest of the constitutional guarantee that was violated
(Hudson).
 3. Balancing: Even assuming sufficient causation and no attenuation, the “deterrent benefits”
of suppression fail to outweigh their “social costs”
o Concurrence (Kennedy- crucial 5th vote): endorses ground 1, likely ground 2 as well, but no embrace of
ground 3
o Future of the Exclusionary rule: Secure/Secure-ish for now, so long as Kennedy hangs around…
otherwise it seems that the 3 ground Scalia argued could do away with the exclusionary rule

PROBLEM 13A-4 (p. 1116):
 Facts: Robert was a passenger in Julian’s car. Police radio call advised officers to look for a black man
with dreadlocks driving a green SUV. They pulled over Julian’s SUV. This was deemed to be an illegal
stop. The ordered the passengers out of the car and searched it and found various guns. Julian and
Robert were arrested and charged with gun possession. Charges against Julian (the driver) were dropped,
but they proceeded with the gun possession case against Robert. His motion to suppress was denied, and
he appealed.
 Note: nothing here was dependent on the passenger; the stop was dependent on the driver.
 Court reasoned that there is a split in the courts in which some courts look at this as 2 different analytical
events: the search of the car and the seizure of the car; while other courts look at this as one
constitutional event.
 Holding: Rejects analytical events distinction, so the evidence is suppressed.
 BUT most courts would find that these facts couldn’t survive Hudson and Strief; the intervening event
would be the search of the vehicle which passenger has no standing on.
H. The Attenuation Doctrine and the Miranda Exclusion Doctrine
 Oregon v. Elstad (1985) (p.1232):
o Facts: Teenager was implicated in the burglary; police went to home; officers talked to the boy in the
living room and asked him if he was aware of why the officers were there to talk to him. Officer asked
if he knew someone by the name of Gross and that they had heard that there was a robbery at the Gross
home. Officer said he felt that Elstad was involved in that and Elstad said “yes I was there”. Taken in
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o
o
o
o
o
o

the back of a patrol car to the station and in officer’s office, he was advised of his Miranda rights; said
he understood them and wanted to talk; he confessed to helping others break in to the house.
Held: A suspect who has once responded to unwarned yet uncoercive question is not thereby disabled
from waiving his rights and confessing after he has been given the requisite Miranda warnings.
Rejection of the “cat out of the bag” theory: causal connection between psychological disadvantage
from earlier admission is speculative and attenuated at best.
Note: The violation in the first instance here is of the 5th amendment (compared to Brown where the
violation was of the 4th.
Presumption of exclusion exists only where first confession is obtained through “inherently coercive
police tactics or methods offensive to due process”
 The Court hints at the 14th amendment due process clause  e.g. if the cop pointed a gun at him
asking if he was the burglar
Where there is ACTUAL coercion, court must determine whether presumption that coercion has
carried over into second confession is overcome. Factors:
 Passage of time
 Change in location of the interrogation
 Change in identity of interrogators
 But here, the custodial interrogation wasn’t actually coercive to rise to DPC level
Compare:  Miranda custody: an atmosphere of “police domination and coercion” (Perkins)
  Actual coercion: circumstances calculated to undermine the suspect’s free will
Missouri v. Seibert (2004) (p.1247):
o Facts: Case re: plot to burn son and child with mental illness inside the mobile home; Seibert was taken
to the interrogation room and was questioned without giving her Miranda warnings. She admitted she
knew Donald was meant to die in the fire; got a 20 minute coffee and cigarette break; this time she was
given Miranda warnings and officer said “Ok, we’ve been talking for a little while about what
happened on the 12th, haven’t we? Now, in discussion you told us that there was an understanding
about Donald…”
o “Question first, warn later” technique: (1) question without warnings and get confession; (2) provide
warnings, get waiver and repeat the question until the suspect confesses again.
o Issue: Does providing Miranda rights to a reasonable person in the suspect’s shoes convey the message
that she retains a choice about continuing to talk?
o Plurality (4): No genuine choice presented to the suspect; Miranda warning are ineffectual if inserted in
midst of coordinated and continuing interrogation, integrated and proximately connected questioning
o Distinguishing Elstad: length of initial interrogation, time gap between first and second confessions,
location of the two confessions, identity of interrogators
o Concurrence (Kennedy)  Critical 5th vote
 Elstad governs unless the “two-step interrogation technique was used in a calculated way to
undermine the Miranda warning”
 When deliberate two-step technique is used, incriminating statements related to the substance
of prewarning statements are excluded unless “curative measures” exist – e.g., substantial
break in time and circumstances or notification to suspect that first statement is likely
inadmissible.
o
Dissent (4): (1) Officer “intent” has no bearing on Seibert’s understanding of her rights; (2) Elstad governs these facts: If
first confession is actually coerced, second one is admissible only if taint is purged; if first confession is not actually
coerced, second is admissible if it follows a valid Miranda wavier
o  Kennedy’s Standard is the default holding of the court! It is the controlling standard used by
courts.

Problem 13E-6 (p.1269):
64
o Facts: Cappers was suspected of stealing money orders; Postal inspectors decided to conduct a sting
operation; they caught him red handed; the inspector said “I’m going to make you go away; I’ve been
watching you all day. I know everything you did tonight”. Cappers admitted the money orders didn’t
belong to him. HOtt claims he didn’t read Cappers his rights because he was I a hurry to track down the
missing money orders. Postal Inspector Good escorted Cappers to transport him to another Postal Service
facility for further questioning. During the 35 minute ride they talked about car; at interrogation room, he
was handcuffed to a chai; cappers asked about the possibility of him getting fired; They waited in the
room for 30 to 40 minutes before Hott arrived. Then Hott gave him his Miranda rights and did not refer to
the prior interrogation. Cappers signed a waiver and he confessed to taking the money orders:
o Note: consistent with the approach taken by most courts, this court regarded Kennedy’s concurrence in the
judgment in Seibert as controlling.
o Also consistent with other courts, this court placed the burden on the prosecution to disprove
deliberateness by a preponderance of the evidence
o Holding (2-1): found cop was deliberately undermining Miranda and not enough curative measures to
purge the taint (the only good thing was the 35 minute ride, but the handcuffing to chair, the waiting, the
questioning by Hott again all worked against curative measures
o The first statement is automatically out because it violated Miranda; as to the second statement, it
failed Kennedy’s Siebert test

United States v. Patone (2004) (p. 1259):
o Issue: whether failure to give Miranda requires suppression of the phsycial fruits of the suspects
unwarned but voluntary statements
o Facts: Respondent was being arrested and was being Mirandized but he interrupted and said he knew his
rights; neither officer completed the warning; respondent was asked about the pistol and respondent said
it was in his room and gave the detective permission to get it
o Note: Kennedy and O’Connor, concurring in judgment, join critical aspects of plurality opinion relevant
to admission of evidence
o Plurality (3): Miranda violations require suppression of statements only, not physical (i.e.,
nontestimonial) fruits
o BUT: physical fruits of statements that are ACTUALLY coerced (due process violation)
are excluded
o
Dissent: (3): (1) Plurality opinion creates inducement for police interrogators to ignore Miranda; (2) Exclusion of
nontestimonial “fruits” is worth the price of ensuring the integrity of the Fifth Amendment Privilege Against Self
Incrimination [ Note: Bryer dissents separately]
I. The Good Faith Doctrine
 Remember – the exclusionary rule’s primary function is to deter unconstitutional action by police officers
 Note: Leon introduces the good faith doctrine for something that is per se defective (facially invalid
warrant) (1984) & in Garrison (1987), the warrant was facially valid but the issue occurred in the
execution (mistake made by the officers, but it was reasonable based on what they knew). The court could
have extended the “good faith doctrine” here, but they looked at this as reasonable mistake. The good faith
doctrine is controversial because a number of states have rejected it. (e.g. NY, but NJ accepts it)


Key Question: Was there objectively reasonable reliance on the search/arrest warrant by a
“reasonably well-trained officer”
United States v. Leon (1984) (p.1186):
o Issue: Should the 4A admit evidence seized in good faith reliance on a search warrant that is
subsequently held to be defective?
o Holding: YES – if “objectively reasonable reliance”
o Herein: social costs versus deterrent benefit of exclusion
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o The cop did nothing wrong here, it was executed within its scope, so there’s no police misconduct to
suppress
o Suppression IS warranted where 4A violation is “substantial and deliberate”
o Four Exceptions to the “good faith doctrine”:
 1) the affidavit supporting the warrant application is so egregiously lacking in probable
cause that no reasonable officer would have relied on it
 2) the warrant is so facially deficient in particularity that officers could not reasonably
presume it to be valid
 3) the affidavit relied upon by the magistrate contains knowing or reckless falsehoods that
are necessary to the probable cause finding (Franks v. DE)
 4) The magistrate who issued the warrant is biased in favor of the prosecution

Illinois v. Krull (p.1987) (p.1211):
o The statutorily authorized search warrant was unconstitutional but the officers objectively relied on
the statute  it was the legislature’s fault
o Yes, bad search warrant, but authorized by unconstitutional statute and it was reasonably relied on
by the officers; no suppression here

Arizona v. Evans (1995) (p. 1211): evidence from an invalid arrest warrant that lead to an arrest is
admissible when the invalid arrest warrant was the fault of the court clerks
o Categorical exception to the exclusionary rule for clerical errors of court employees.

Herring v. United States (2009) (p. 1212):
o Context: bookkeeping error by police employee re outstanding arrest warrant
o A “limited” holding (Roberts):
 1. Error was “merely negligent”
 2. Error was isolated, not systemic
o  balancing the deterrent benefit against the social costs of evidentiary exclusion
o Broader dicta: Exclusionary rule applies only if officers violate the Fourth Amendment:
 1. Deliberately; or
 2. Recklessly; or
 3. With gross or recurrent negligence

Davis v. U.S. (2011) (p. 1222):
o Facts: Search incident to arrest of automobile turns up contraband; search complies with thenapplicable federal law; during pendency of appeal, Gant is handed down; search is illegal under
Gant; Gant applies retroactively to this case
o Question: does the exclusionary rule mandate suppression of the evidence?
o Held: (Alito):
 (1) Applicability of exclusionary rule turns on whether deterrent benefits of exclusion outweigh
social costs (Hudson)
 (2) Applying this principle, no exclusion since the search was conducted in “objectively reasonable
reliance on binding appellate precedent”
 (3) Reliance on dicta in Herring re the need for deliberate, reckless or grossly negligent police
conduct to justify suppression
J. Impeachment Limitation:
 Can tainted evidence be used to impeach the testimony at trial?
 Who is testifying?
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
o Defendant (Yes)
o Third-Party Witness (no)
Which amendment was violated?
o Fourth (yes)
o Fifth (Miranda) (yes)
o Sixth (Massiah) (yes)
o Fourteenth (NO)  because this evidence received in violation of DPC is involuntary/unreliable.
Handout (Prostitution Ring): Facts:
 The Defendant argues that Captain Solomon should not have been permitted to testify as to what he saw in
Barrington’s motel room, because the search warrant was based on an affidavit not supported by probable
cause. The affidavit stated only that Captain Solomon “received information from a confidential
information” who is known to Captain Phil Solomon and has provided information in the past that has led to
arrest and convictions”
 Assume that the affidavit did not establish probable cause to justify he issuance of the search warrant,
should the good faith doctrine nonetheless permit the introduction of the evidence seized by Captain
Solomon?
 Options:
1. Warrant is supported by probable cause
2. Warrant not supported by probable cause, but saved by good faith
3. Warrant not supported by probable cause, nor saved by good faith




Probable cause is informed by whatever is listen in the affidavit and the hearing to issue the warrant
Magistrate will have to test if there is probable cause – he still has to independently investigate that there is
probable cause.
“Bare bones” affidavits are conclusory/don’t provide any info – egregiously lacking in good faith
Holding: The state loses; everything gathered under the warrant is suppressed because there was an absence
of good faith. This ends the inquiry and it falls
Note: If a warrant is applied by one officer, but executed by another, it makes no difference – you can see
how this would be gamed)
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