Criminal Procedure

Spring 2014

THE 4TH AMENDMENT

The right of the people to be secure in their person, 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.

Why? The English had general writs which gave police and soldiers the power to
do whatever they wanted to (break into peoples homes and say they had a right
to be there, ransack, arrest)
Warrants Clause is the touchstone of the fourth amendment. You must
specifically describe the place to be searched, or persons, or things because you
want to prevent them from taking whatever they want.
o The right of the people to be secure against unreasonable searches and
seizures by the govt

DEFINING THE SEARCH

Is it a search?

Test: REASONABLE EXPECTATION OF PRIVACY

o (1) Exhibits an actual subjective expectation of privacy and
o (2) Expectation is one that society is prepared to recognize as reasonable

United States v. Katz Objective standard reasonable expectation of privacy

Katz changed the standard to protecting people and privacy NOT places.
o Property based approach being replaced by a privacy-based approach.
What a person knowingly exposes to the public even in a home or office is not
protected by the 4th Amendment

U.S. v. White Assumption of risk analysis that treats privacy as one size fits all

False friend case involving a wired informant. The 4th amendment is not implicated
when you voluntarily disclose information to another person. You assume the risk
that the person will testify against you. Telling one person is like telling the whole
world.
False Friend Cases: if what you tell your friend isnt protected then what you
tell your friend who is secretly transmitting the conversation to the police is not
protected.
o Lopez: undercover agent recorded the conversation & they used the
recording. If you knowingly expose the information in a conversation to
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someone you are assuming the risk that they are recording it not a search
(no warrant required)
o Lewis: Undercover agent testifies he went into home and bought drugs. Not
a search if you voluntarily open up your home and volunteer the information
that you are a drug dealer.
o On Lee: Friend had a transmitter that sent incriminating statements outside
to agents who later testified in court. Not a search bc they knowingly
assumed the risk.
Smith v. Maryland

Issue: Whether pen register used to record numbers dialed from private home was
a 4th amendment search
Held: Not a search because you have no REOP in numbers dialed because they are
transmitted to the telephone company
o A person has no legitimate expectation in information he voluntarily turns
over to third parties. The person assumes the risk in revealing his affairs to
another that the information will be conveyed by that person to the
government (even when they believed that the information would be used
for a limited purpose)

Drug Sniffing Dogs: Search?

U.S. v. Place: Drug sniffing dog is not a search (luggage at the airport) bc you are
in a place and it is not intrusive.
o Ill. V. Caballas: Drug sniff of car trunk that was lawfully stopped was not a
search

Open Fields Doctrine:. The police can be trespassing on private property but fields are
not persons, places, or effects covered by the Fourth Amendment = not a search. Open
fields dont equal houses. The 4th Amendment offers protection in persons, houses,
papers and effects. Doesnt matter that there is a no trespassing sign. The court wont
grant reasonableness because that is not what the 4th Amendment protects

Ciraolo: backyard is curtilage but no REOP of people seeing in it from a public

vantage point.
o The backyard was blocked off with a high fence. If flying over the back yard
in a 747 and you can see what is growing, the public can see it and therefore
it is not a search the govt can do it.
CA v. Greenwood: No reasonable expectation of privacy in ones garbage

SEARCHES OF THE HOME

Kyllo v. United States

Issue: Whether use of thermal-imaging device aimed at a private home from a

public street to detect relative amounts of heat within the home constitutes a
search?
Held: Yes.
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o A device that is not in the general public use, used by the govt to explore
the details of the home that would previously have been unknowable without
a physical intrusion, the surveillance is a search and is presumptively
unreasonable without a warrant.
o Heightened the expectation of privacy in the home. Free from government
intrusion of the home the home is a sacred space.
Florida v. Jardines

Drug sniffing dog on homeowners porch to investigate contents of home was a

search (Scalia starts to revert back to trespass theory)

SEIZURE
U.S. v. Karo: what is a seizure?

Issue: Whether installation of a beeper in a container of chemicals with the consent

of the original owner constitutes a seizure within the meaning of the 4th
Amendment.
Held: No. No meaningful interest of a possessory interest and there was consent.
o Not a search or a seizure because the government placed the device in the
canister prior to the defendant receiving it.
Seizure: meaningful interference with an individuals possessory interests in that
property

U.S. v. Jones
Issue: Whether attaching a GPS device to someones car and subsequent use of
the device to monitor the cars movements for a period of days is considered a
search or a seizure
Held: Court treated it all as a search. Scalia (majority) used a trespass-based
approach. The travel was exposed to the public but trespass PLUS the motive to
obtain information = search. Hence not all GPS uses are searches but trespass plus
extended nature of surveillance.
o Scalia saying Katz added the privacy approach to the common law
trespassory test, it never did away with the trespass requirement. The jeep is
an effect not open field
o (1) Trespass (property) approach; (2) Privacy approach
Florida v. Jardines
o Facts: Police received unverified tip that Jardines was growing marijuana at his
residence. Police and DEA sent surveillance team. They couldnt see inside the
home when thy approached bc the blinds were closed. The dog sniffed the base of
the front door and alerted the detective to the presence of narcotics. Based on that
info they applied for and received a search warrant.
o Issue: Whether using a drug sniffing dog on homeowners porch to investigate
content of the home is a search within meaning of the 4th Amendment.
o Held: Yes.

o The home is first among equals. The area immediately surrounding the home
(curtilage) is considered part of the home for 4th Amendment purposes. The
porch is constitutionally protected.
Note: Trespass + Search = mounting the GPS but not turning it on. Trespass alone is not
enough. Trespass + Intent to search
PROBABLE CAUSE
4th Amendment: No warrants shall issue, but upon probable cause
Probable Cause: fair probability based on facts and circumstances. It is a probability,
not a more likely than not conclusion. Establishing PC means the police are ensuring
that: (1) a search or seizure is based on individualized suspicion and (2) the search or
seizure is justified based on objective facts and circumstances.

Two aspects:
o (1) Quality of information
o (2) Quantity of information
Probable cause exists where the facts and circumstances w/in the officers
knowledge and of which they have reasonable trustworthy information are
sufficient in themselves to warrant a man of reasonable caution in the belief that
an offense has been or is being committed by the person being arrested, or that
evidence subject to seizure will be found in the place to be searched
Magistrate has to take the information into consideration in order to issue the
warrant. The tip and all other information is based on totality of the
circumstances analysis. Magistrate = neutral, protecting citizens. All about
limited govt the magistrate is a check against unbridled govt power.
Independently come to the same conclusion the cops came to
o Magistrates PC Analysis
(1) Credibility: Police officer gets instant credibility with an oath
(2) Facts & Circumstances independently assess the conclusion.
Why? (The basis of knowledge)
E.g. Saw a guy bringing in several young Asian women into a
house over the course of 20 days. Think theyre involved in
human trafficking. Facts: The number of women you saw and you
personally saw it.
PC Procedurally
o (1) Arrest or Search Warrant
Constitutionally, can only be issued if there is probable cause to make
the arrest or conduct the search
Set out information (under oath) in their possession that they believe
justifies issuance of the warrant
o (2) Arrest without warrant
If an arrest results in seizure of criminal evidence, may argue that
the police violated the Fourth Amendment bc they didnt get a warrant
or that even with a warrant, the police didnt have probable cause.

Spinelli v. United States

Facts: Spinelli convicted of traveling from Illinois to St. Louis, Missouri with the
intention of conducting gambling activities prohibited by Missouri law. Spinelli
challenged the constitutionality of the warrant that allowed the FBI search that
lead to the discovery of evidence necessary for his conviction.
o Spinelli-Aguilar Test
Credibility of the person whose information youre relying on
Veracity
Reliability
o Credibility + veracity
Informant credibility & how does the informant know the
information
Are they telling the truth? Most informants arent the most
upstanding
Basis of Knowledge
Reliable

Draper: corroboration went to the credibility of an informant p. 154

If a report is so detailed then the manner it was obtained they should have seen
it. Basis of knowledge is established (so detailed, assumed they know it from
personal information or inside info). Draper court links corroboration to credibility.

Illinois v. Gates

PC not about what is more likely than not it is going to happen. It boils down to a
probability.
Confidential informant versus an anonymous tip
o Veracity: dont know the credibility of the anonymous person
o If CI lying, they can be prosecuted plus if they give the police bad info, the
police wont use them anymore and the incentive to use them is lost.
o Treat them differently because its easier to meet the veracity prong. Look at
the incentive there versus just an anonymous tip.
o Anon tip can come from anywhere, could be made up.

ARREST AND EXECUTION

4TH Amendment Protection

Warrant required for an arrest if not in a public place

Warrantless arrest OK in public place

ARREST

Payton v. New York -- no warrantless arrests in the home (except for exigent
circumstances)
o Issue: Whether police can arrest someone in their house without a warrant?
Whether the warrantless entry into a home for the purpose of making an
arrest was allowable?
o Held: No. 4th Amendment protections firm line drawn at the front door
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A person that is inside a home, especially his or her own home, is

entitled for 4th Amendment protection that people in cars and public do
not get (as in U.S. v. Watson)
Same privacy interests as a search of a home. Privacy interest in your
home
Arrest warrant founded on probable cause carries w/ it the limited
authority to enter a dwelling when there is reason to believe the
suspect is within
o Three year old doesnt equal consent to enter the home. Need a warrant
here... an arrest warrant is a seizure. Lower court said it wasnt a search, it
was just a seizure based on common law. Police only needed PC for a felony
arrest to forcibly enter the home according to the lower court
o With an arrest warrant you can enter if you have reason to believe the
suspect is inside their home
o Watson: public arrests only need PC. Payton: home requests require a
warrant
Watson versus Peyton
o May use forcible entry to execute the warrant only if there is a reasonable
belief that the suspect is home and if danger to police or destruction of
evidence.
o Unreasonable force may cause a 4th Amendment violation
EXIGENCY (Arrests in the home)
o Minnesota v. Olson factors
o Exigent Circumstances (Warrantless intrusion may be justified by:)
Hot pursuit of a fleeing felon
Imminent destruction of evidence
Need to prevent a suspects escape
Risk of danger to the police or to other persons inside or outside the
dwelling
o Exigent circumstances: not an exclusive list. Cant foresee every possible
scenario
Steagald Principle: With an arrest warrant you can only go to that individuals
home. The cops cant use an arrest warrant as a pre-text to search a third partys
house

ELEMENTS OF A VALID SEARCH WARRANT

Valid Search Warrant:

o (1) Neutral detached magistrate
o (2) Particularity: list of items to be seized

Lo-Ji Sales, Inc. v. New York

Facts: Defendant charged w/ three counts of obscenity. Motion to suppress

evidence seized from his adult bookstore was denied. Claims that the seizure of
the magazines, films and other objects from the store violated the guarantees of
the First, Fourth, and Fourteenth Amendments.
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Warrants require a neutral detached magistrate. The warrants particularity

requirement have to list with particularity the items to be seized
o The Justice issuing the search warrant has to be neutral and detached. Not
neutral because he was at the scene of the crime, he was acting in a law
enforcement capacity at that point.
o Warrant has to describe items to be seized with particularity. Not the case
here, left it entirely to the discretion of officials conducting the search to
determine what items were likely obscene and to implement the search.

EXECUTION OF A SEARCH WARRANT

Richards v. Wisconsin: knock and announce rule -- can dispense if police have
reasonable suspicion that theres danger to police or destruction of evidence

Knock and Announce Rule: Knock and announce police presence before
executing a warrant. Reasons: Safety of police, protection of property, protects
some element of privacy and dignity
o Exceptions to knock and announce:
1.Knock and announce futile
2. increased risk of peril
3. Destruction of evidence
Law enforcement interests balanced with privacy interests
Standard used reasonable suspicion much lower standard
than probable cause, barely more than an officers hunch.
Objective reason.
Reasonable suspicion that they are going to destroy evidence
o (Not difficult to overcome)
Case by case inquiry in drug cases.

EXIGENCY
Exigent Circumstances -- only time a warrantless search of the home is allowed.
(1) Hot pursuit of a felon,
(2) Prevent the destruction of evidence,
(3) Safety of police officers or third parties.
*Warrantless search is per se unreasonable except when it falls under the exceptions
*Still need PC to execute the search w/o a warrant

Kentucky v. King -- exception to the 4th Amendment. Dont need PC, only need a lawful
arrest

Facts: Probable cause to search for contraband, evidence of drug use (the smell of
marijuana). The police set up an undercover sting, didnt know which apartment
the suspect had entered.
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Issue: Does the rule of exigent circumstances apply when the police create the
exigent circumstances?
Held: Warrantless searches conducted in police created exigent circumstances
dont violate the Fourth Amendment so long as police did not create the exigency
by violating or threatening to violate the Fourth Amendment

SEARCHES INCIDENT TO A LAWFUL ARREST (SITLA)

Chimel v. California -- SITLA inside a home. Warrantless searches that are conducted in
relation to a lawful arrest (lawful in the sense that it is Constitutional)

Facts: Police had a warrant to arrest Chimel for the burglary of a coin shop. Officers
knocked on the door, identified themselves to the wife and she let them in the
house. One of the officers handed him the warrant and asked for permission to
look around He said no, was advised that on the basis of the lawful arrest, the
officers would nonetheless conduct a search. The police searched the entire home
for 45 min - an hour
Issue: Could the warrantless search of Chimels entire house be constitutionally
justified as incident to his arrest?
Held: No. Police officers arresting a person in his or her home cannot search the
entire home without a search warrant. They may search the area within the
immediate reach of the person.
o Black Letter: Cant search the entire home. Reasonable search w/o a
warrant = to protect police from weapon within reaching distance or to
preserve evidence within reaching distance

Grab Rule: about warrantless searches that are conducted in relation to a lawful arrest

Scope of the place to be searched. Only two situations where it is ok to perform a

warrantless search: weapons or evidence that are within reach
o Look for weapons that are grab-able w/in the control and immediate
reach of the person youre arrest
For purposes of safety
o Evidence that is grab-able to prevent destruction or concealment
Evidence that they may try to conceal or destroy
Dont need probable cause. Can say it is per se reasonable. No police
justification needed

United States v. Robinson SITLA expanded to the person.

Black Letter: Right to search a person in custodial arrest cases you can search
the entire person and everything on them.
o Per se reasonable as long as arrest is lawful
Held: in the case of a lawful custodial arrest a full search of the person is not only
an exception to the warrant requirement of the Fourth Amendment, but is also a
reasonable search under that Amendment."
o The right to search a person incident to arrest is automatic in all custodial
arrest cases. As long as it has a lawful basis they can search everything.
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o Abandons particular justification ... protect police by allowing them to search

the person
o Terry -- protective frisk for weapons. Law enforcement can execute a
protective frisk w/o PC for an investigative stop. Short term, brief stop of an
individual = no PC needed for quick pat down safety is paramount
Exposure of cop is much greater, cops in more danger in situation of custodial
arrest.

ARREST OF AUTOMOBILE OCCUPANTS

New York v. Belton -- SITLA applied to the automobile

Applying the principle of Chimel warrantless search. Can search the entire area,
entire passenger area (glove compartment) and anything else in the car. Trunk is
excluded.
PC cause to arrest lawful arrest. No Warrant needed.
Police were acting lawfully when they searched the jacket in the back seat of the
car. The passenger compartment is always within reaching area: police can always
search within reaching distance to protect themselves or for evidence.

Arizona v. Gant -- Chimel and evidentiary and safety justifications define Beltons
scope.
o Gant arrested for driving with a suspended license at his house. When he
pulled in the driveway and got out of the car, they arrested him. Cuffed in
the back of the police car & locked in.
o Supreme Ct. doesnt like that theyve turned an exception to an entitlement
o Police can only search w/in the s reach, only when arrestee is unsecured
and w/in reaching distance of the passenger compartment at the time of the
search p. 251
Going back to true scope of Chimel
Searches incident to recent occupants arrest
(1) Unsecured individual, (2) w/in reaching distance
(3) Reasonable to believe theres evidence of the crime the arrest is
based on
Trunk doesnt fall underneath (3) still need a warrant for the
trunk
Only searching for evidence specific to the crime you arrested
them for
o Court says car is unique
Pretextual Stops and Arrests

Rule: there is no such thing as a pretextual stop

o Dont care about the subjective reasoning in the polices head. Only care
about whether or not there was a reason to stop
If police officer has a hunch that you have drugs in your car, they dont
have a warrant and follow you around all day, wait til you roll through
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stop sign doesnt matter. The police had a legit objective reason to
stop you.
As long as police have lawful basis for the stop, their actual motivation is legally
irrelevant

AUTOMOBILE EXCEPTION
Caroll, Chambers, Carney auto exception line of reasoning, turns on mobility.
Search warrant unnecessary to search car if police have PC because of the cars mobility
and reduced EOP due to govt regulation

Chambers: searched several hours after arrest, not SITLA

Caroll: autos different, factor in mobility of the car. Found even though car was in
police impound lot it was still mobile. Car stopped on highway, no PC to arrest
individuals. Only PC to search.
Carney: RV. Mobility of the vehicle makes automobile exception reasonable,
reduced expectation of privacy in vehicle because we have govt regulations.

Automobile Exceptions

Chambers v. Maroney
o Armed robbery. Description of the car and individuals inside the car matched
probable cause to arrest. PC to search the vehicle for the weapons and
contraband
o Court says: still need Probable Cause. If initial PC is good and police acting
w/ procedure its ok.
o Caroll says the cops can search on the highway because there was PC. But
here: the search occurred at the police station.
o Does the Caroll rule apply when the car is no longer on the road? (at the
police station). Argument for that it is no longer mobile. It is not on the
highway, its in police custody. The police have time to go get a warrant.
Weighing privacy interest with the law enforcement interest in
preserving evidence
Court says that PC still required. If the initial PC is ok, then PC to search
later is ok.
Extends Caroll reasoning to searches at the police station. If you can
do it on the high way, you can do it at the police station because
technically it is still mobile.
o Automobiles and other conveyances may be searched w/o a warrant in
circumstances that would not justify the search w/o a warrant of a house or
office, provided that there is probable cause to believe the car contain
articles that the officers are entitled to seize.
Cars are different, cars on the high way mobile
Cars different = no warrant
Need PC
Mobility a type of exigency? Emergency that the evidence will
disappear if we dont search
California v. Carney
o Suspect accused of exchanging marijuana for sex. Police entered the motor
home without a warrant or consent. Police saw marijuana, plastic bags and a
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scale on the table. Subsequent search at the station revealed additional

marijuana in the cupboards and fridge. He was charged w/ possession of
marijuana for sale. He moved to suppress evidence discovered in the motor
home. That motion was denied
o Issue: Whether law enforcement violates the 4th amendment when they
conduct a warrantless search w/ PC of a mobile home located in a public
place?
o Held: No
U.S. v. Chadwick
o Court held that the 200 lb footlocker need warrant
Footlocker was not mobile in the same sense that a car is
Not item that is intimately associated with the person (if it had been a
purse, the purse was in the car with a person... would have been
different according to ct.)
o Rule: Automobile exception does not apply when the item is coincidentally
found in the car
Once item comes into polices exclusive control and dominion need
a warrant
California v. Acevedo
o Facts: Police looking for brown paper bag containing drugs. PC that theres
marijuana in a brown paper bag in the trunk. PC to arrest driver of the car.
Sam him walk out of the building with what they believe are drugs.
o Issue: Whether police have to get a warrant for a sack that is inside a
moveable vehicle just because they dont have any PC to search the entire
vehicle?
o Held: Police dont have PC to search the entire car. Coincidence that the
paper bag was in the car. Cant extend the auto exception
U.S. v. Ross
o Police have PC to search a vehicle, court said it was fine to search the brown
paper bag. Bag big enough to hold the item they were looking for. General
PC to search car for drugs, brown paper bag can hold the drugs.
o Clears up dichotomy, what the police do when they find the container in the
vehicle.

PLAIN VIEW AND PLAIN TOUCH DOCTRINE

Plain view -- An article is in plain view, and subject to warrantless seizure by a police
officer if: (1) he observes it from a lawful vantage point; (2) he has a right of physical
access to it, and (3) its nature as an object to seizure (i.e. that it is contraband, a fruit,
instrumentality, or evidence of a crime) is immediately apparent when he observes it
(i.e. he has probable cause to seize it)

PV doctrine: functions as justification for the police conducting a warrantless

seizure of the evidence in plain view

Horton v. California

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Facts: The victim was accosted by two men, bound, robbed and handcuffed him
before robbing him of his jewelry and cash. Police investigated the crime and
determined there was PC to search petitioners home for proceeds of the robbery
and the weapons used by the robbers. Police got a warrant and searched the
residence, didnt find stolen property (rings). Did find weapons in plain view along
with items identified by the victim.
o PC to search for evidence of a crime in a certain home. Warrant limited to
searching for the proceeds 3 rings. Weapons not included in the warrant.
Scope of the search is limited to the size of the items theyre looking for.
o Plain View of where you expect to find the 3 rings. Where its reasonable to
find the three rings.
o Interests a warrant is protecting: possessory interest in not having his guns
taken by the police/stolen clothes associated with the robbery.
o Protect privacy interests more zealously than possessory interests p. 300
o Issue: Whether the warrantless seizure of evidence of crime in plain view is
prohibited by the Fourth Amendment if the discovery was not inadvertent?
o Held: Inadvertence is not a necessary condition
o Plain View
(1) Lawful access to where the item is (in Horton they have a warrant)
(2) The item is actually is in plain view
PV limited to what they are looking for in the warrant, if exigency
circumstance PC
Inadvertence isnt a requirement because:
1. Police need objective standards,
2. Once the officer has a lawful right of access, no additional
Fourth Amendment interest is furthered by requiring inadvertent
discovery
Arizona v. Hicks
o Bullet fired through the floor of respondents apartment, striking and injuring
man in apartment below. Police entered the apartment the gun came from.
Ok to enter because PC + exigency.
Shooter/weapons/victim
o Officer suspected that there were expensive stereo components that stuck
out in the squalid apartment. He had to move some of the components and
phoned in the serial numbers to headquarters, seized it immediately after
learning it was stolen.
o Seizure has to have a meaningful interference with the possessory interest.
Here: no seizure bc it was not a meaningful interference w/ possessory
interest
o Is it a search? Yes. The stereo was in plain view but the serial numbers were
not. Lacking probable cause to search for the serial numbers.
Seizure of an article in PV is only legit when it is immediately
apparent to the police that they have evidence before them
Immediately apparent the officer must have PC to seize the article
in PV
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Here: Officer reasonably suspected but lacked PC that the components

were stolen. If it had been immediately apparent to officer that stereo
components were stolen it would have been proper for him to seize
them under the PV doctrine.
o Policy consideration: why bother w/ formalities of getting a warrant and
inconvenience the cop when they could get a warrant

Plain View Doctrine

Probable cause limits the scope of the search

Scope of the search is limited by the lawful access
TEST -- Objective Prongs:
o (1) Lawful access
o (2) Immediately apparent = PC the item is contraband (Hicks)
Immediately apparent under the PV doctrine
Plain Touch
o Minnesota v. Dickerson n. 2 p. 310
Plain touch corralary introduced. Immediately apparent defined in
Hicks same definition as PC
Police may seize contraband detected solely through an officers sense
of touch if, analogously to plain view, the officer had a right to touch
the object in question, and upon tactile observation, its identity as
contraband was immediately apparent

CONSENT
Consent

Voluntarily given (no duress or coercion -- express or implied)

o Totality of the circumstances analysis using facts of the individual case
o Factors that could amount to duress:
Show of force by police (e.g. display of guns), that would suggest to
the person that he is not free to refuse consent
Presence of a large number of officers, which may suggest to the
person that the police are contemplating an undertaking which does
not depend on the cooperation of an individual
Repetetive requests for consent after an initial refusal
Evidence relating to the consenting persons age, race, sex, level of
education, emotional state, or mental condition, that suggests that his
will was overborne by the officers conduct

Schneckloth v. Bustamonte -- p. 311

Facts: The police stopped the vehicle containing the respondent and five other
passengers after they noticed a broken headlight and license plate light. When the
driver could not produce a license, the police asked for someone who could
produce identification. Another passenger responded, and when the police asked
him if they could search the vehicle he consented. Three stolen checks were found,
and they were used as evidence to convict the respondent.
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o Issue: When consent can allow police to search? What kind of consent do the
police need? What is needed to prove that consent was voluntarily given?
o Held: The consent to a vehicle search did not violate the Fourth and
Fourteenth Amendments to the United States Constitution (Constitution).
The test to determine if a subject has voluntarily consented is to review the
totality of the circumstances. If the subject knows he or she has a right to
refuse, it is a factor to be considered, but that fact is not the sole
consideration.
o Schneckloth v. Bustamonte Court explaining that consent needs to be
voluntary but we test voluntariness with totality of the circumstances.
o Whether has to know they have the right to say no is not dispositive
Only one factor, along with the surrounding circumstances to be taken
into account to determine voluntariness.
o Difference between trial rights and the Fourth Amendment in preliminary
stage
Argument by the court that effective law enforcement turns on consent
searches, if req. a higher standard police wouldnt be getting the
evidence
Black Letter: Warrantless entry of a residence is valid when it is based on the consent
of a person whom the police, at the time of entry, reasonably (but incorrectly) belief has
common authority over the premises

The consent determination must be made with an objective standard:

o Would the facts available to the officer at the moment... warrant a man of
reasonable caution in the belief that the consenting party had authority of
the premises?
No warrantless entry without further inquiry is unlawful unless actual
authority exists
Yes warrantless search is valid

Illinois v. Rodriguez -- apparent authority

Facts: An acquaintance of the respondent, Gail Fischer (Ms. Fischer), phoned

police after the respondent supposedly beat her. She escorted the police to the
respondents apartment, and Ms. Fischer maintained that it was our apartment
and that she had belongings there. She opened up the apartment with a key that,
unbeknownst to the police, was never given to Ms. Fischer by the respondent.
Once inside the apartment, the police found several items of drugs and related
material.
Issue: Whether the warrantless search is prohibited under the Fourth Amendment
of the United States Constitution (Constitution) because the police did not
actually receive consent from someone who legitimately possessed common
authority over the premises?
Held: The search is permissible because the police had a reasonable belief that a
responsible party consented to the search. The Supreme Court of the United States
(Supreme Court) emphasized that test was not whether the party actually had
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any authority over the premises, but rather whether it was reasonable for the
police to believe that consent was granted from a party with authority.
o The law doesnt require the agent of the govt (police, magistrate..) to be
correct, but that they are always reasonable p. 339
Concept of common authority to grant consent
o Two or more individuals, any individual that resides in that abode has the
authority to give consent
o As long as police reasonably believed she had common authority = ok
NOTE:
o Present and objecting co-tenant trumps the consent of the consenting cotenant.
o Ex. 911 call for domestic violence in a front yard at a home in DT Gulfport.
Put husband in squad car, ask wife for consent to search the house. Wife
says yes, is the search ok?
Yes. They didnt have to ask him.
He has good hearing and yells no, they cant search the house. If they
search anyways and find drugs, the evidence can be suppressed. **
Objecting present co-tenant trumps the consent of the consenting cotenant.
o Ex. Police arrest one co-tenant to get consent from the other, as long as they
had PC to arrest the first co-tenant its ok. Objective basis. No objective basis
to arrest co-tenant = not ok.

TERRY DOCTRINE
Moving away from warrants and PC towards a new standard: reasonableness
Frank and Camara cases that came before Terry

Frank v. Maryland: case regarding housing inspections, not a criminal search.

o Convoluted arguments by the court, 4th amendment didnt apply to housing
inspections because they were regulatory and not criminal. The court used a
rigid application of the 4th amendment because it didnt want to make govt
have PC and a warrant to conduct housing inspections.
Camara v. Municipal Court: overturned Frank v. Maryland
o Redefined PC: didnt require individualized suspicion, PC was redefined as a
broader concept of reasonableness based on weighing of the govt and
individual interest
Reasonableness is the defining factor
Private interest isnt that big of a deal nobody is going to jail; the govt
has great interest in ensuring the safety of a housing unit.
Flipped it so now whatevers reasonable has PC instead of having PC
makes it reasonable.
o Just because the purpose of the inspection isnt criminal doesnt mean its
not invasive. The 4th amendment does apply to govt inspections **but** it
applies differently

Reasonableness Balancing Standards in Criminal Investigations

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Terry v. Ohio
o Facts: The officer noticed the Petitioner talking with another individual on a
street corner while repeatedly walking up and down the same street. The
men would periodically peer into a store window and then talk some more.
The men also spoke to a third man whom they eventually followed up the
street. The officer believed that the Petitioner and the other men were
casing a store for a potential robbery. The officer decided to approach the
men for questioning, and given the nature of the behavior the officer decided
to perform a quick search of the men before questioning. A quick frisking of
the Petitioner produced a concealed weapon and the Petitioner was charged
with carrying a concealed weapon.
o Issue: Whether a search for weapons without probable cause for arrest is an
unreasonable search under the Fourth Amendment to the United States
Constitution (Constitution)?
o Held: The Supreme Court of the United States (Supreme Court) held that it
is a reasonable search when an officer performs a quick seizure and a limited
search for weapons on a person that the officer reasonably believes could be
armed. A typical beat officer would be unduly burdened by being prohibited
from searching individuals that the officer suspects to be armed.
o Police have to get a warrant merely to turn a stereo over to get serial
numbers. After Terry, the same reasonable belief means the police can stop
you and search you (pat you down) without getting a warrant.
But... stereo cant shoot you
o Introducing a standard that is less than PC...
Police can conduct this type of investigation (even if theres a
subjective racial overtone) as long as they can provide a basis for
doing it.
Court doesnt care about subjective reasoning as long as theres a
objective evidentiary justification
o Can we have PC-less search and seizure in public?
o Court is shifting away from the presumption of unreasonableness bc theres
no warrant and no PC.
***NOW *** about reasonableness in all the circumstances (limited by
the balancing test between govt interests and individual
interests)
Treat the seizure separately from the search. Apply the 4th amendment
to say was it reasonable?
Seizure occurred when the police grabbed Terry. Prior to that
point? Routine police encounter not a seizure = no 4th
amendment. No PC needed. Police need nothing bc the 4th
doesnt apply
(1) Not a seizure
(2) 4th Amendment inapplicable
(3) No law enforcement justification

U.S. v. Mendenhall

Facts: DEA agents watched Mendenhall get off a flight in Detroit from Los Angeles.
After observing her behavior they determined she was acting like a person
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unlawfully carrying narcotics. The DEA agents identified themselves and stopped
Mendenhall, asking for her identification and ticket. After noticing the ticket wasnt
in her name they asked Mendenhall to come to the office and she did so without
protest. In the office she consented to a search of her person and bag.
Issue: Is being detained by police for questioning without being placed under arrest
always an unlawful seizure in violation of the 4th Amendment?
Held: No
Reasoning: Justice Stewart. A person has been seized only if, in view of all the
circumstances surrounding the incident, a reasonable person would have believed
she was not free to leave.

Routine police encounter versus fitting courier profile, they gave her ID back. She was
told that she could deny consent.
Police didnt need RS. The totality of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave
Subjective intent of the police doesnt matter unless they convey it to her (e.g. by saying
you arent allowed to leave)
Ct. says reasonable person in her shoes would have felt that she was free to leave;
therefore it was not a seizure.
Border Search Case (email) -- big boat coming into a U.S. port & being searched in
Miami. What kind of justification and basis do they need to search people, their things
and their homes when they are at the border? They were looking for plants and seeds in
someones room on the ship. Court focuses on whether or not the agents needed at least
reasonable suspicion (or PC) at the border the police dont need a justification to
search everything on you.

Border Search Rule: No cause is required to search, even an individuals living

quarters, because it is the border. Baseless searches are allowed.
o BUT does it mean the police can do any kind of search?
o E.g. Getting stomach pumped... if it is an excessive search you are going to
need some type of justification
o Body cavity search or property destroyed while agents are looking for
something ... excessive
o Reasonable suspicion: strip search, x-ray examination
The nation has an interest in securing the border. No justification required for
search.
Federal statute that governs all searches, you can be searched for everything and
anything at the border.
Reasonable Suspicion (RS): specific articulable fact ... so you can make the
logical inference ... warrant the intrusion

Special Needs Exception

Special needs of the government where no type of individualized suspicion is needed.
Trying to balance the govts interest with individual privacy rights

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Administrative Searches ok as long as govt agents are acting properly in

furtherance of a statute. Subjective motivation of the individual govt agents does
not matter
Airport Searches govt can do whatever they want to do to search for weapons
and explosives. No individualized suspicion needed
School Search: no warrant required and no PC required for searches done by public
officials at schools
o Two Prong Test
(1) Reasonable grounds [reasonable suspicion] that there is either a
rule violation or criminal violation.
(2) Once initiated, the search cannot be excessively intrusive
Sobriety Checkpoints
o MI State Police v. Sitz
3 Prong Test: Suspicion-less Stops
(1) Govt interest (the states interest in preventing accidents
caused by drunk drivers)
(2) The effectiveness of sobriety checkpoints in achieving that
goal
(3) The level of intrusion on protected rights (individuals rights)
caused by the checkpoints
Note: Doesnt matter what number of people are arrested. It is up to
the executive to determine a reasonable way. As long as there is some
evidence that it is effective, that it is reasonable, they will not question
the effectiveness of the checkpoint.
Highway Checkpoints
o Edmond
Issue: Are highway checkpoints for discovery and interdiction of illegal
narcotics constitutional?
Holding & Reasoning: No. Highway checkpoints to advance a general
interest in ordinary crime control are not constitutional. Fourth
amendment requires searches and seizures to be reasonable.
Suspicionless searches have been found to be alright for certain
special needs. Need some sort of individualized suspicion for general
crime control.
Note: As long as there is a legitimate reason for the stop it is okay. (e.g.
safety)
Here: the sign said narcotics checkpoint. Didnt set up the
checkpoint for safety. If the police department had said it was for
safety and there was some sort of evidence that something like
this checkpoint would have improved the safety of the highways
more likely to be allowed

Standing

Payner
Standing to contest a search
o Rakas v. Illinois
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**TEST** Whether the person who claims the protection of the 4th
Amendment has a legitimate expectation of privacy in the invaded
place
Search of another persons residence
o When owner or lessor is absent
o When owner or lessor is present
Search of ones own automobile when absent
Search of another persons vehicle
o When owner is absent
o When owner is present
Rawlings
MN v. Carter

EXCLUSIONARY RULE
Exclusionary Rule: governs the admissibility of evidence that is obtained in violation of
the 4th and 14th Amendments. Controversial tension between the importance of using
criminal trial to find the truth versus using the fourth amendment to limit the police and
thereby enforce constitutional safeguards

Exclusionary rule is part of the 4th Amendments constitutional rights (Weeks)

Purpose: Deterrence and preservation of judicial integrity by refusing to allow
unconstitutionally obtained evidence into the courtroom
Scope: ER applies to the direct product of govt illegality as well as secondary
evidence that is fruit of the poisonous tree

Fruit of the Poisonous Tree Analogy

(1) Tree is the Constitutional Violation
o (2) Fruit is the evidence.
o (3) Identify the causal link between (1) & (2).
If theres a weak causal link between the two the govt argues that it is
too attenuated
If theres 0 causal link independent source. No point in excluding
it bc it was unrelated to the Fourth Amendment Violation.
o (4) Identify factors that may weaken the link OR look to inevitable
discovery
Independent source: circumstances in which the evidence in question is not a
fruit of the poisonous tree and therefore, not subject to the exclusion on this
ground.
Inevitable discovery & attenuation: exceptions to the rule that a fruit of the
poisonous tree must be excluded at the criminal trial
Identifying the Poisonous Tree

Identify the Fourth Amendment violation

Independent Source & Inevitable Discovery Doctrines

Independent Source
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o Whether the challenged evidence is in some sense the product of illegal

govt activity
No: evidence not causally linked to govt illegality is admissible
o Applies if evidence is initially discovered unlawfully but is later obtained
lawfully in a manner independent of the original discovery Murray
Inevitable Discovery
o Evidence linked to an earlier illegality is admissible in a criminal trial if:
(1) Prosecutor proves by preponderance of the evidence,
(2) that the challenged evidence ultimately or inevitably would have
been discovered by lawful means

Murray v. United States

Facts: Petitioner Murray was under surveillance by federal agents. They observed
Murray and a co-conspirator drive separate vehicles to a warehouse. Inside, the
two agents saw two more individuals and a tractor-trailer. The petitioner and his
co-conspirator turned their respective vehicles over to other persons. Based on
this, agents forced entry into the warehouse without a warrant. Observing bales of
marijuana, the agents left, and kept watching the warehouse until they had a
warrant.
Issue: Whether, . . . assuming evidence obtained pursuant to an independently
obtained search warrant, the portion of such evidence that been observed in plain
view at the time of a prior illegal entry must be suppressed.
Held: No.
o The warranted search very possible constituted an independent source
because it was supported by probable cause which was supported by an
affidavit that didnt include anything learned by the police during the illegal
first entry. The evidence seized was a product of the second LAWFUL
warranted search. NOT a product of the first unlawful, warrantless search.

Attenuation Doctrine

Even if evidence is causally linked to an earlier illegality, at some point the fruit
from the poisonous tree is sufficiently untainted so it can be admissible in a
criminal trial.
Determined on a cases individual facts. No single fact dispositive in the analysis.
Tied to the perceived purposes and costs of the Exclusionary rule
o Attempt to mark the point at which the detrimental consequence of illegal
police action becomes so attenuated that the deterrent effect of the ER no
longer justifies its cost

Wong Sun

Good Faith Exception

When the exclusionary rule does not apply

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TEST: Evidence obtained pursuant to a search warrant that is later declared invalid
may be introduced at a defendants criminal trial in the prosecutors case-in-chief if
a reasonably well-trained officer would have believed that the warrant is valid
o Objective test the inquiry into good faith is limited to the objectively
ascertainable question whether a reasonably trained officer would have
known the search was illegal despite the magistrates authorization

THE FIFTH AMENDMENT

No person shall be compelled in any criminal case to be a witness against himself.

Difference between the 5th Amendment right not to incriminate yourself and the 6th
Amendment due process involuntariness doctrine regarding confessions
o 5th Amendment is broader and can sometimes apply to tangible things
(subpoenas and evidence)
NOT ALL EVIDENCE
Blood evidence: is not communicated, not testimonial in nature
you can be held down against your will and forced to give
blood. If an illegal substance is found your blood test can be used
against you
Handwriting samples, etc.

Due Process: the government cannot take away your life, library or property without
due process of law
Comes down to fundamental fairness, whether or not something was fair, whether a DP
right was taken away

Voluntariness (due process) only applies to actual confessions. DP

voluntariness violation happens at the time of the confession. Does not even
become an issue until it comes time to be entered in a criminal trial. Other than
that you do not get to claim 5th Amendment privilege.
o Hector: Involuntary confession made by a slave had to be suppressed. Court
based its decision on fundamental fairness.
Rationale against involuntary confessions:
(1) Reliability
o Actual reliability of the evidence. Dont want to send an
innocent person to jail
o Person being tortured may confess so stop the pain
(2) Deontological argument moral value judgments.
Something is right because it is right in and of itself.
o Torture is wrong. Torture is bad.
o Improper pressure
o Idea of mental freedom torture leads to abrogation of
mental freedom.
o Prevent unreliable confessions from reaching the jury. Want the court to use
statements taken without overbearing police pressure. Maintain some
minimum level of maintenance of mental freedom.
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Privilege and involuntary confession rule: Privileged against self-incrimination

in the context of statements being offered in criminal cases

Miranda v. Arizona

Custody: What type of seizures require Miranda warnings?

o All suspects in custody must be given Miranda warnings before questioning
regardless of the nature or severity of the crime
o What is custody?
Arrest
Functional equivalent of arrest
Test: how a reasonable man in the suspects position would
have understood his situation
o Would a reasonable person in the suspects position think
they were in custody?
Note: Ordinary traffic stops are not custody for Miranda
purposes. Police intent doesnt matter.
Interrogation: when does the court find that Miranda comes into play once you
have custody?
o What is interrogation?
Express questioning
Functional equivalent of questioning
Test: words or action that the police should know are reasonably
likely to elicit an incriminating response
o Reasonable police officer knew or should have known that
words or actions would elicit an incriminating response
Waiver
o Waiver of Miranda is not crime specific
If you waive rights to counsel and to remain silent police can
interrogate you about EVERYTHING
o Prosecution must prove (preponderance of the evidence) that the police
administered the warnings and also that the arrestee waived their Miranda
rights in order for any statement obtained during custodial interrogation to
be admitted at trial. Waiver must be: voluntary, knowing, and intelligent
o NC v. Butler: waiver can be express or implied after Miranda warnings are
read for both the right to counsel and the right to remain silent
Express waiver: writing or saying you are going to talk
Implied: found through an inference from actions and words of the
person interrogated
Silence alone cannot count as a waiver
Express written oral statement of waiver or right to remain silent
or right to counsel is strong proof but not necessary nor sufficient
to establish waiver.
Limits express waiver: even though you signed something, it doesnt
automatically mean you are voluntarily waiving.
o Test: 3 Prongs (totality of the circumstances)
Voluntary
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Knowing
Intelligent
Invocation remember different rules apply if a suspect invokes the right to
counsel instead of right to remain silent!
o Right to Counsel
Suspect must unambiguously request counsel.
Clear and unequivocal statement asserting the right
Maybe I should get a lawyer not enough
Burden on the suspect to articulate the desire clearly enough so that a
reasonable police officer in those circumstances would understand the
statement to be a request. If statement not clear enough police can
keep asking you questions and do not need to clarify
What should the police do once Miranda right to counsel is invoked?
Edwards v. AZ: Police may not re-approach suspect and
interrogate him or even seek a waiver until counsel has been
made available
o Silence
Berghuis v. Thompkins
To exercise the right to remain silence, one must break the silence by
making an unambiguous statement of invocation.
BUT... what about waiver? Just because suspect doesnt invoke
waiver doesnt mean they necessarily waived Miranda rights
because invocation and waiver are not the same thing
o Even if no invocation, govt must prove knowing and
voluntary waiver by preponderance of the evidence
o If warnings given (knowing), no coercion demonstrated
(voluntary) the actual answers to
Exceptions
o Public Safety
o Booking Exception
Rule: Routine booking questions are exempt from Miranda
Theory is that routine questions do not seek incriminating answers

THE SIXTH AMENDMENT

In all criminal prosecutions, the accused shall enjoy the right to have assistance of
counsel for his defense

Sixth Amendment rt to counsel applies when a criminal prosecution has been

initiated indictment

When is a suspect denied the basic protections of the Sixth Amendment when evidence
of his own incriminating words has been used at his trial?

Deliberate Elicitation: After indictment, the police cannot deliberately elicit

information from an individual without an attorney present
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o Massiah: He didnt know he was being interrogated. Didnt know he was

talking to agent of the police so he was never even given a chance to waive
rt to counsel
o Brewer v. Williams: once judicial proceedings begin, the Sixth Amendment
says that the suspect has a right to counsel
Ineffective Assistance of Counsel
Strickland v. Washington

Defense counsels theory was that the individual was taking responsibility, he
admitted to the crimes. Claimed he hadnt committed any crimes up until the
sudden crime spree show maybe he had some sort of mental break. Ineffective
assistance of counsel claim comes in bc the defense counsel didnt bring in any
mitigating factors at sentencing.

2 PRONG TEST:
(1) Counsels performance was deficient

Objective standard under prevailing norms. They dont seem to be looking at ABA
standards (aspirational)
Incompetency rising to the level of failure to meet 6th Amendment guarantee

(2) Actual Prejudice

... but for counsels errors the result of the proceeding would have been different
Cases where theres a presumption of prejudice
o Conflict of interest
o Denial of the assistance of counsel all together
o State interference

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