Criminal Investigation Master Notes

Introduction.................................................................................................................................................. 2
Regulating Searches and Seizures: The Fourth Amendment......................................................................3
Introduction........................................................................................................................................... 3
Introduction to the exclusionary rule, its virtues and its vices...................................................................3
Searches.................................................................................................................................................. 4
The Meaning of Searches.................................................................................................................. 5
Privacy and Technology........................................................................................................................ 9
Seizures................................................................................................................................................. 12
Warrants and the Meaning of Probable Cause......................................................................................15
Background........................................................................................................................................ 15
The Probable Cause Standard........................................................................................................... 15
Execution of Warrants........................................................................................................................ 21
Exceptions to the Warrant Requirement.................................................................................................23
Exigent Circumstances....................................................................................................................... 23
Plain View Doctrine............................................................................................................................ 28
The Automobile Exception.................................................................................................................. 30
Arrests & Search Incident to Arrest..................................................................................................... 34
Reasonableness................................................................................................................................. 40
Police Discretion and Profiling............................................................................................................ 45
Special Needs........................................................................................................................................ 50
Roadblocks......................................................................................................................................... 50
Reasonableness and the Use of Force.................................................................................................. 52
Reasonableness and the Use of Consent..............................................................................................55
Third-Party Consent........................................................................................................................... 58
Exclusionary Rule: Standing and Scope................................................................................................ 59
Standing............................................................................................................................................. 62
Fruit of the Poisonous Tree................................................................................................................. 64
Regulating Police Interrogations and Confessions....................................................................................69
The Fifth Amendment Privilege: Background Values and Scope...........................................................69
Voluntariness Doctrine and its Discontents............................................................................................70
Miranda: Procedures to protect privilege............................................................................................72
What Constitutes a Valid Miranda Warning?.......................................................................................77
What Constitutes a Valid Waiver?....................................................................................................... 77
Invocations......................................................................................................................................... 78
Waivers without Invocation................................................................................................................. 79
Remedies for Miranda Waivers (FOPT)..............................................................................................81

Introduction

Criminal procedure is largely regulated and legislated by the federal judiciary through
constitutional interpretation
Once the Supreme Court issues an opinion, that opinion is then re-interpreted by lower courts,
and those re-interpretations form the basis for criminal procedure
Reasons the Supreme Court is a bad regulator of criminal procedure
Court can only review practices that become the subject of a lawsuit
o Because criminal procedure must be the subject of a lawsuit in order to be reviewed,
many types of abuses are never reviewed by the supreme court because
Juries are sympathetic to the police
Police officers are rarely sufficiently solvent to warrant a lawsuit
Criminal charges are rarely brought against police for mistreatment of citizens
because they are exceedingly unlikely to win
o Thus, most criminal procedure issues raised occur when a person who has been charged
with a crime thinks procedure has been violated and challenges procedure through the
exclusionary rule
Under exclusionary rule, improperly collected evidence is excluded from trial
o Exclusionary rule is principle method of police control; implication is that many police
practices are never subject to review because are not related to the collection of
evidence
Supreme Court is particularly poorly suited to regulating criminal procedure because of limited
access to criminal procedure cases
o Can only hear 3-4 crim procedure cases per year
o Many of the cases that involve potential violations of criminal procedure never make it
into court system because exclusionary rule used at trial and as many as 90% of cases
end in a plea
o Lower courts are heavily biased towards the police
o The case selection method does not permit court to develop systematic approach to
developing procedure
Almost all law relating to criminal procedure is court-made, legislature is hesitant to place
restrictions on police abilities
o Therefore when court reviews conduct, court does not have understanding of whether
conduct is typical, connected with other practices, or the rationale for why conduct must
be required
Once Supreme Court opines on an issue, their holding is re-interpreted by lower courts and
applied by the police; the criminal justice system is massed against the criminal suspect
o Courts are overwhelmingly biased against suspects
o Police action is usually only reviewable through exclusionary rule so have no incentive to
act according to rules for actions not related to gathering evidence
Overall, means that while Supreme Court decisions are important, they do not necessarily reflect
activity actually taking place in the criminal justice system
Ds always want to claim that the 4th amendment was engaged earlier so that any evidence
obtained subsequently is the fruit of the poisonous tree

Regulating Searches and Seizures: The Fourth Amendment

Introduction

1.
2.
3.
4.
5.

Roles of the fourth amendment:

o Chief source of privacy protection
Since 1961 when Supreme Court held that the Fourth Amendment applied in
state and federal cases alike, Fourth Amendment has been very important
o Holds police liable for actions
Police training now involves elaborate instruction on legal rules (4 th Amendment)
The role of 4th Amendment is distinct from role of constitution elsewhere in law
o Typically constitution defines out limits of law
o 4th amendment defines actually rules of law
Textual interpretation of 4th amendment
o 4th amendment dictates protection against unreasonable searches and seizures
Traditionally this meant freedom from searches and seizures without probable
cause or a warrant
Today reasonableness considered distinction from warrants and PC
o 4th amendment arose out of cases in England and the US involving searches to discover
and punish political activity
Importance is that 4th amendment, source governing police authority, was written
before the existence of police departments

Was there a search or seizure?

If not, end of 4th amendment analysis
If so, when?
If so, what kind?
Search must be reasonable
a. Warrant based on PC applies without exception only to search of houses
b. Exception to warrant requirement PC

Introduction to the exclusionary rule, its virtues and its vices

Exclusionary rule shapes the kind of 4th amendment cases judges seeexclusionary rule (4th
amendment) cases arise only when the police find something that an incriminates an individual;
this may affect judicial perception about the value and necessity of searches
3

Mapp v. Ohio Court considers whether evidence obtained by searches and seizures in violation of 4 th
amendment is inadmissible in state court.
Police arrived at Ds home based on a tip that a suspect was hiding at Ds home. D refused to allow
police into her house. The police waited outside and after several hours forced the door open. The
police presented the woman with a fake warrant and then searched the house and found lascivious
books, pictures, and photographs. The State Supreme Court found D guilty, though evidence was based
primarily on [evidence] unlawfully seized
Court finds that evidence obtained by searches and seizures in violation of the Constitution is
inadmissible in a state court. Court argues that a right to privacy can be inferred from the
combination of the 4th and 5th amendments limiting unreasonable searches and seizures, and the
right against self incrimination. Court argues that though 4 th and 5th amendments previously were
not applied in state courts, they were not applied for practical considerations that are no longer
present. Court also argue that differences in federal and state rules invited police to evade the
rules at both level of government, and further by allowing the state courts to admit such
unconstitutional evidence encourages disobedience to the constitution. Court dismisses the
argument that enforcing the constitution allows criminals to go free on the basis of the
importance of judicial integrity.
Judicial integrity could also be interpreted in the opposite way given that the court will sometimes
be forced to rule in a way the court knows to be erroneous because of an of improperly collected
evidence.
Judicial integrity could also be interpreted in the other way in that the system gives police a strong
incentive to lie under oath when evidence has been improperly presented
Court also argues that the exclusionary rule is important to deter improper collection of evidence.
Though this is now the most common argument for the rule, there is no data to support the
inference that the rule successfully deters
At best only deters certain activity (does not deter intimidation or violence not intended to lead to
evidence)
Dissent argues that ruling shows a lack of judicial restraint. Dissent dismisses practical arguments
because they are unrelated to a constitutional question. Court argues that since law enforcement
problems vary from state to state, states ought to be allowed to form their own regulations on law
enforcement.

Presents questions of whether 4th amendment should be applied on a sliding scale strict
exclusion for relatively minor crimes
Logic behind the 4th and 5th amendments together operating to exclude S&S
o Use of force self-incriminating testimony was a clear violation of 5th amendment privilege;
the 5th amendment must be a ban on evidentiary use of that compulsion
o If 4th amendment seen as adjunct to 5th, then 4th should also be enforced with
exclusionary rule
Some argue that this interpretation of 4th amendment runs counter to text since
text does not prescribe the exclusionary rule
Exclusionary rule only matters if 1) incriminating evidence is found, 2) the government wishes to
charge a defendant with a crime the evidence proves
o If police know that either of these conditions is absent, are less likely to follow the rule
Costs of exclusionary rule are relatively low few escape punishment through exclusionary rule
Right level of deterrence some argue that one of benefits of rules is that it does not deter too
much
o If police suffered severe penalties for illegal searches, police would conduct many fewer
searches to limit their exposure, and these limitations on searches would drive down
overall levels of criminal deterrence
4

Searches
Criteria considered for identifying search
The Katz analysis is a social norms analysisconsider the norms in the area to determine whether an
individual has an expectation of privacy we are prepared to recognize as objectively reasonable given
location of the individual
Criteria
Reasonable Expectation of
Privacy
Location of suspect/subject

Precautions undertaken by
individual to protect privacy

Location of the police

Character of the information

obtained
Police trespass

Character of technology

Police compliance with the

law
Reliability of evidence
Nature of the invasion

Explanation
1. Individual manifests expectation of privacy
2. Society accepts expectation of privacy as
objectively reasonable
Does area entered involved provide the setting
for intimate activities? (if in the home, the
answer is yes)
Did individual manifest an expectation of
privacy?
Did individuals take particular care to ensure
privacy?
1. Are the police occupying a space that any
member of the public could occupy or access;
applications:
broad hypothetical could public ever
occupy this space
practical do people regularly occupy
this space?
2. Are police accessing information that was
knowingly exposed to the public or a third
party?
Intimate v. Public/Commercial (not clear what
intimate means
Illegal v. Legal (no reasonable expectation of
privacy in protecting illegal information
Did police engage in physical trespass to
obtain information? (Considered, but not
dispositive)
Was sense enhancing technology used? How
invasive is the technology? Is the technology
generally available to the public? What sense
was enhanced? Does technology reveal
anything about the contents of a
constitutionally protected space? Could those
things ordinarily be learned without physical
trespass into the area?
Were the police complying with all pertinent
laws at the time of the search? (not
dispositive)
Is the evidence in question particularly
reliable?
Does invasion involve physical (tactile)
manipulation of a protected thing?

Case
Katz v. US
Oliver v. United States
US v Knotts
Katz v. US
United States v. Dunn

Florida v.
Riley(flyovers)
Dunn
Ciraolo
California v.
Greenwood

Illinois v. Caballes

Oliver v. United States

Kyllo
Illinois v. Caballes

Riley v. Florida
(flyovers)
Unites States v. White
Bond v. United States

The Meaning of Searches

Doctrinal questionwhat is a 4th amendment search?
The personal questionwhat privacy rights to individuals have the right to demand?
In order for the police to perform a search, the search must be reasonable
o In order for a search to be reasonable the officer must have a warrant based on PC
If an activity is not considered a search, then it can be unreasonable and requires no supporting
warrant or PC
Katz v. United States Court considers whether the fact that law enforcement does not physically invade
a protected space means that law enforcement did not violate a 4 th amendment right; courts first attempt
to define a 4th amendment searches in light of emerging technology(
D was convicted of transmitting gambling information over the phone when the police used a recording
device posted on the outside of a telephone booth to record Ds betting conversations inside the booth.
Court finds that the governments use of the electronic recording devise violation a justified
expectation of privacy and thus constituted a S&S under the 4 th amendment. The court finds that
the fourth amendment protects people and not places, and thus it is irrelevant that D was in a
publicly accessible area when he placed his call. Court argues further that by closing the door of
the booth and paying for the call, D had a reasonable expectation of privacy. Court argues that it
is irrelevant that the transmitter did not physically invade the booth because the non-violation of a
property right is not dispositive on the 4th amendment because the 4th amendment extends to not
just tangible items, but also oral statements. The court then finds that as a S&S the police
actions did not comply with constitutional requirements because the officers did not have a
judicially issued warrant for the S&S.
(concurrence important because the standard offered in the concurrence is now cited as holding of Katz)
Concurrence holds that a) a telephone booth is an area where, like a home, but unlike a field, a
person has a constitutionally protected reasonable expectation of privacy, and b) electronic as
well as physical intrusion into such a private place may constitute a 4 th amendment violation, and
c) invasion of such a space is presumptively unreasonable absent a warrant. Finds that in order
to find a S&S must find 1) that a person exhibited an actual (subjective) expectation of privacy,
and 2) that the expectation is one society is prepared to recognize as reasonable.
Dissent argues that a textualist reading does not support the courts findings, but rather that the court is
making the law to be compatible with modern technology. Court argues that a conversation is not
something that can be searched or seized. Also argues from originalist perspective that this is not a
practice that founders could have been aware of.

Effects of Katz expand the fourth amendment by rejecting ideas that

o Katz is concerned only with S&S of tangible property
o Amendment applies only to surveillance techniques involving physical penetration of
protected spaces
Deficiencies of Katz offered no comprehensive theory by which questions of coverage should
be resolved
o Some argue that reason/justification for the lack of a comprehensive theory in Katz is that
an open-ended holding allows rules to be grown gradually to suit a system; court does
not issue made rule that has unforeseeable ramifications
o Because of deficiencies of opinion, Harlans 2-part criteria has emerged as the test for
determining of there is a 4th amendment S&S implication:
A person have exhibited an actual (subjective) expectation of privacy
Expectation be one society is prepared to recognize as reasonable

All-or-nothing approach to S&S Katz (and specifically deficiencies of Katz) raise question of
degree to which 4th amendment law should be uniform (as it has been in the past) for anything
that could be considered a search or seizure, rather than graduated depending on the degree of
the privacy invasion
o Establishing a uniform ruling either limits the tools available to the police or limits
restrictions on the police
If the line is uniform, anything beyond the cutoff point requires a warrant (which
provides substantial protection for S&Ss)
However searches that are not substantial (e.g. shining a flashlight into a pulled
over car) either are not regulated at all, or are not allowed because they are
S&Ss and thus require a warrant.

United States v. White

Context: war on drugs
D tried and convicted when a government informant wore a wire to record conversations that implicated D
in criminal activity. On two conversations a federal agent hid in the informants closet to transmit the
signal. On one other occasion the informant wore a wire into Ds home. D appeals conviction on the
basis that the 4th amendment protected his expectation of privacy in the conversations because those
expectations were constitutionally justifiable (Katz suggested that 4 th amendment protects justifiable
expectations of privacy).
Court finds that the recording and transmitting was not a search, and thus did not violate the 4 th
amendment. Court argues that the law permits invasions of privacy in the form of accomplices
repeating conversations to the police, and by extension the law should thus permit recordings
(argument is, what is the difference?). The court argues that the law should be hesitant to outlaw
the use of reliable evidence. The court also argues that permitting wiretaps will not affect free
discourse because an individual who confident enough to talk to an accomplice who may be
reporting to the police is unlikely to fear being recorded.
One possibly interpretation of holding is that 4th amendment protection can be secured only by
not speaking
Interestingly, the majority writes from the perspective of a guilty person in writing that the guilty
will not substantially change level of comfort with speech, while the dissent is worried about the
impact on the average individual
Dissent argues primarily that monitoring kills free discourse by undermining confidence and sense of
security in individual conversations and destroys the concept of privacy imagined by the founders. The
court asserts that individuals rely on the obscurity of remarks, and are thus likely to be much more
measured in speech knowing that they could be recorded. Dissent also argues that wiretapping is not
analogous to accomplice testimony and asserts that the majority assumes that wiretapping imposes no
greater invasion of privacy than accomplice testimony. Dissent also points out that the question is not
one of whether wiretapping can be used, but only one of whether it can be used without a warrant.
Scenario
Faithless Friend: criminal accomplice rats
out friend
Unbugged event
Agent with a recorder
Agent with transmitter (White)

4th Amendment Ruling

Not a 4th amendment issue
Not a 4th amendment issue
If an agent can report on an interaction, why not allow an
agent to record it
If an agent can record an interaction, why not allow an
agent to transmit? Argues no additional loss to privacy
because Ds utterances will not be substantially different
just because D could be recorded

Some of motivation for allowing increasingly invasive investigative techniques may be that certain
crimes cannot be investigated effectively without covert operations because the participants and
7

victims are unlikely to report them (E.g. narcotics trafficking, bribery of public officials, intimidation
of witnesses, etc.)
o These crimes often involve consensual transactions
o Argument is that certain crimes can only be caught only with the techniques used in
White
Oliver v. United States Stands for notion that a physical trespass does not necessarily imply a search
and invoke 4th amendment protections.
Ds were charged with growing marijuana. Both Ds were growing marijuana in hidden fields that were
highly secluded and surrounded by no trespassing signs. Federal agents discovered the marijuana as a
result of warrantless trespass onto the property.
Oliver was the first case that cited Harlans concurring Katz opinion as the holding in Katz
Court found that the evidence procured through the police investigation was admissible. Court
argues that under Katz the individuals did not have a reasonable expectation of privacy. Court
argues 1) textualism that the 4th amendment extends to persons, houses, papers, and effects,
not fields 2) Katz analysis open fields do not provide a reasonable expectation of privacy 2a)
orginalism/evolving meaning?- that open fields do not provide the setting for intimate activities
the constitution is meant to protect 2b) social interest that there is no societal interest in
protecting the privacy of activities that occur in fields (growing crops) 2c) as a practical matter
police have access to a field that they do not have to homes. Court also states that the existence
of a property right is not dispositive in determining whether one has a reasonable expectation of
privacy.
United States v. Dunn Stands for notion that courts distinguish between open fields (no warrant
necessary) and curtilage (warrant necessary)the area immediately surrounding the home. Court
concluded that a barn 50 yards from the home was outside the curtilage so agents were allowed to jump
over fences and peer into the barn without a warrant.
Per the decision, curtilage issues should be resolved with reference to four factors:
o Proximity of the area to the home
o Whether the area is included within an enclosure surround the home
o Nature of the uses to which the area is put
o Steps taken by resident to protect area from observations
California v. Ciraolo Case finds that flyovers over curtilage ar 1,000 feet (the lowest height allowable for
a plane to fly) are not protected by the 4th amendment because the fact that private citizens can fly over
the area means that individuals do not have a reasonable expectation of privacy there.
Florida v. Riley Flyovers of curtilage in helicopters are not protected by the 4 th amendment, at least as
long as such flyovers do not lead to physical disturbances of the property and it is possible for ordinary
citizens to fly over the area.
Investigators flew a helicopter over a covered greenhouse at a height of 400 ft based on a tip to the
Sheriffs office that marijuana was being grown in the greenhouse. Panels were missing from the
greenhouse roof that allowed the Sheriff to see marijuana growing inside the greenhouse.
Court found that the no search occurred under the 4th amendment in accordance with the finding
in Ciraolo. Court argues that if any member of the public could fly a helicopter at 400 feet over the
property, then an individual has no reasonable expectation of privacy. Court also asserts that
evidence does not suggest that a flyover at 400 feet is sufficiently rare that an individual should
expect to have privacy from flyovers at that altitude. (Concurring opinion emphasis that there is
reason to believe that there is considerable use of airspace at 400 feet and thus no reasonable
expectation of privacy could exist).
The obvious counter to this opinion is that whether an individual has a reasonable expectation of
privacy depends on where the individual is located and how much air traffic enters the area

Dissent argues that under pluralitys view, expectation of privacy is defeated if ANY member of the public
could position herself to see into an area. Court argues that it is not determinative (or should not be
determinative) that the officers were flying at a height approved by flying regulations since evidence of
compliance/non-complaince with the law was not dispositive of a search in Oliver. Court argues that
finding that dispositive the fact that the officer was in a place he had a right to be is attempt to analogize
to an officer peering from a road, but a position in a helicopter is distinguishable because few have
access to helicopters, and so one might reasonably expect privacy from helicopter viewings even if
helicopters are allowed to go to a certain area. Another dissenting opinion emphasizes that evidence
does not indicate that there is enough helicopter traffic at that height to indicate that one has no
reasonable expectation of privacy there.
Supposing the dissents final point is correct (that in order to determine if the helicopter viewing
violated the 4th amendment, one ought to consider helicopter traffic to determine if individual had
a reasonable expectation of privacy); question is where to consider helicopter traffic to determine
if expectation of privacy was reasonable (local community? State? Nation?)
Dissenting opinion indicates that the courts understanding of intimate activities is sex-related
(sun bathing)the original meaning of the constitution was intended to product evidence of
sedition and commercial activities!

After Riley and Ciraolo, most aerial surveillance of curtilage is outside the scope of Fourth
Amendment concern, but physical invasion of curtilage is a search

Bond v. United States Tactile manipulation of a bag is a search protected under the 4 th amendment.
A Boarder Patrol agent squeezed soft luggage in an overhead storage area on a bus and felt a brick-like
object. He obtained consent to open the bag and found a brick of Meth. The Supreme Court found a
search because though passengers expect other passengers much touch their bag, passengers do not
expect bags to be felt in an exploratory manner.
Dissent points out that it is much more likely that another passenger will squeeze a bag in an overhead
compartment then it is that strangers will look in a backyard from an aircrafthard to know why ask
questions about what public does here, but not in Riley.
California v. Greenwood Warrantless trash searches do not violate the 4 th amendment.
An investigator received information that an individual by be engaged in drug trafficking. The investigator
obtained and searched the trash left in front of the individuals house. Based on the drug paraphernalia in
the trash police obtained a warrant and arrested the inhabitants.
Police overturned the lower court ruling in finding that the trash search did not violate the fourth
amendment. Court argued that 4th amendment is violated only if individual 1) manifests a
subjective expectation of privacy, 2) that society accepts as objectively reasonable (Harlan
concurring opinion). Court argues that the expectation of privacy in trash cannot be objectively
reasonable because garbage bags are readily accessible by animals, children, scavengers, and
snoops, and police cannot be expected to avert their eyes to evidence of criminal activity.
Dissent argues that as long as a package is closed, it ought to be protected by the 4 th amendment. Court
argues that a search of trash can reveal intimate details about ones personal life, like a search of a
house. Dissent concedes that when trash is strews about police cannot avert their eyes, but it does not
follow that trash in sealed bags should not be protected. Dissent argues further that it should not be
dispositive that trash was placed at the curb given that placing trash at the curb is legally required.

Knowing Exposure if an individual reveals his affairs to another, that information can be
conveyed by that person to the government (e.g. bank microfilms of checks, deposits, and other
financial records)
o concept used to limit 4th amendment coverage

Privacy and Technology

Many issues related to the 4th amendment have arisen because of the advance of technology
9

Advanced technology raises the question of what is knowingly exposed to the public

US v. Knotts using a beeper to obtain information that could have been obtained through visual
surveillance is not a search for 4th amendment purposes (court found no search took place when police
monitored a beeper attached to a drum of chloroform as it travelled over open roads because a person
travelling on public thoroughfares has no expectation of privacy in his movements because she can be
seen by the public)
It is not clear that the analogy to what the public can see is appropriate since the public do not
follow people constantly, and the police do not have the resources to maintain surveillance on
someone the same way a beeper can
United States v. Karo
An informant tipped off police that a group of drug makers had ordered ten drums of a chemical used to
produce drugs. With the informants consent, police replaced one of the canisters with one of their
canisters with a beeper inside. Police tracked the can with the beeper while it was on public roads, but
eventually lost it and used the beeper to track it to a storage facility. Court considers whether delivery of
a can with a beeper inside of it is a search and seizure, and whether monitoring a beeper falls within 4 th
amendment protections when it reveals information that could not have been obtained through visual
surveillance.
Court finds that use of the tracker did not violate 4 th amendment protections. Court finds first that
the placement of the tracker did not constitute a S or S because the tracked was placed with the
consent of the owner. Court finds next that the transfer of the beeper was not an S or S because
the transfer itself did not convey any information. Court finds that monitoring a canister within a
house does violate 4th amendment rights because it is analogous to entering a house to gather
information. However, court argues that prior illegal use of the beeper does not invalidate later
legitimate use, and thus court was permitted to track the beeper on open roads. The warrant
obtained did not violate the 4th amendment because the improperly obtained information was not
necessary for the warrant (though information obtained subsequently was!)
Court did not address whether it was a search to use the beeper to track the canister to the
storage facility. Seemingly that should have been a search, and since it lead to the information
that allowed the police to get the warrant, possibly this should have been a 4 th amendment
violation.
Dissent argues that receiving a beeper where one expects none infringes on an individuals exclusionary
right, and thus the transfer of the beeper was an S&S. Dissent argues further that the case should be
distinguished from Knotts because in Knotts the officers had a visual on the can placed in the car, and
thus the beeper provided no information that couldnt have been obtained visually. Dissent argues that
use of the beeper is a violation even when used to find something contained in a car.
Kyllo v. United States use of a thermal imager without a warrant violates the 4 th amendment. Sense
enhancing technology cannot be used to obtain information not ordinarily available to the public about the
contents of a constitutionally protected area that one ordinarily could not access without a physical
trespass into the area.
An informant told an officer that an individual was growing marijuana in her house. Officer used a thermal
scanner to measure the heat emanating from the house, and in conjunction with electricity bills obtained a
warrant to search the house and discovered marijuana grown inside. Lower courts found that the device
was non-intrusive, but the opinion was appealed.
Court finds use of a thermal imager is a search under the 4 th amendment, at least until thermal
imagers are commonly used by ordinary members of the public. Courts strongest apprehension
seems to be the possibility that the thermal imager might reveal details of innocent activity. The
court argues that use of a thermal imager is analogous to use of a microphone directed at a house
because it can be used to obtain information that otherwise couldnt be obtained without a
physical invasion. Court argues that an interpretation of the 4th amendment as protecting against
only physical invasions was rejected in Katz. Court argues also that because of the complexity of
10

technology, the court is not comfortable making determinations on permitting technologies that
could advance and potentially infringe on 4th amendment rights. Opinion leaves open the
possibility that use of a thermal imager could be appropriate were it to proliferate into common
usage.
Worth noting that all lower courts had ruled the other way because the form of surveillance is nonintrusive and any member of the public could do it (may imply something about how well matches past
opinions)
Because Scalia had been so critical of Katz before this opinion, it is not clear if Kyllo endorses Katz
Dissent argues that the technology involves nothing more than gathering information that is exposed to
the public (heat waves that have left the house), like gathering information on odors coming out of a
house. Dissent argues further that the privacy interest is trivial because individuals who engage in
uncommon heat-producing activities can insulate that area particularly well. Court emphasizes that the
technology is not through-the-wall surveillance and does not reveal any information on the inside of the
house.
Were the dissents argument to hold, it would imply that Katz was ruled incorrectly because the
recorder picked up only information that was exposed to the public (conversation that was
escaping the booth)

There is some tension between the emphasis on the sanctity of the home and the statement in
Katz that the 4th amendment protects people, not places (that tension arises repeatedly, but
especially in this opinion)
o Potential pitfall of this is that may distract from other areas where privacy interests are
high, and thus may warrant sanctity (cyberspace)
One practical effect of finding in Kyllo is that pursuing white collar drug crime is more difficult, and
thus may shift even more focus to blue-collar drug crime (sales on the corner)
Courts focus on whether technology is in general use to determine whether police can use it
seems to imply that as technology advances, constitutional privacy protection will shrink
If 4th amendment involved a graduated regime, might be possible for police to use semi-invasive
technology in some cases (or in cases where law-makers considered justified)

Illinois v. Caballes Softens courts stance on not obtaining information in a protected space when only
illicit activity will be revealed.
D was stopped for speeding. While officer was writing D a ticket, a second officer walked a drug dog
around his car. The drug dog alerted the police and the police discovered marijuana. Court considers
whether the 4th amendment requires reasonable suspicion to justify using a drug dog (does dog sniff
implicate 4th amendment protections?)
Caballes has been seized, but seizure is reasonable even without a warrant because of Caballes
traffic violation
Court finds that the use of a drug dog does not implicate 4 th amendment protections. The court
argues that a seizure did not occur because D was not detained for extra time to allow the drug
dog sniff. Court argues further that the use of the drug dog does not infringe on a constitutionally
protected privacy interest because drug dogs alert only to drugs and interest in possessing
contraband cannot be deemed legitimate.
Guidelines for use of a dog sniff: 1) reliable (trained) dog, 2) dog sniff only outside of the vehicle,
3) stop does not add to the duration of an authorized Terry stop
If use of drug dogs does not implicate the 4th amendment, hypothetically drug dogs can be used
to sniff anywhere where getting there does not implicate a 4 th amendment S&S
o So with drug dogs, perform ordinary S&S analysis
The dissent argues that use of a drug dog does implicate legitimate privacy interest because drug dogs
frequently err (some estimate up to 60% of the time). Thus, often the alert of a drug dog will prompt
police to search, without a warrant, an area in which an individual has a legitimate privacy interestone

11

not at all linked to contraband or anything illegal. Dissent also argues that individuals have a legitimate
privacy interest in not being subjected to the embarrassment and intimidation of a dog search.

Distinguishing searches and seizures in criminal investigative context

o During Caballes oral arguments; Stevens(?) emphasized that people are used to being
sniff tested at airportsthough those sniff tests are searches, warrants are not required
o Counter Airport searches are different because the search is not undertaken for criminal
investigative purposes; airport searches are held to a lesser standard on the basis of the
administrative needs doctrine
Process for drug dog searches
o Drug dog sniffs
o Dog alerts
o Alert provides PC for a search
Post Caballes, where can police use search dogs?
o Key all issues below litigated same way as any 4th amendment inquiry (nature of the
thing does not matter)
o To sniff at the front door of a house?
Counters to sniff at the front door of a house, police must trespass on curtilage
Kyllo obtaining by sense-enhancing technology any information regarding
home that otherwise couldnt be obtained without entry to the house is a search;
any information on the interior of a home is an intimate detail
If court ruled in favor of allowing sniffs test at front door, would court be forced to
allow use of transmitters on drugs in a house?
o To sniff buses in front of a house?
o To sniff cars at an intersection?
o To sniff cars in a lot?

Seizures

Property seizure is typically fairly simplethe interfering with an individuals possessory interest
in a thing
The conflict in seizures arises because we expect police to take a proactive approach to fighting
crime, but at the same time want to establish some limits on police authority
Main conflict in seizure cases is temporalwhen did the seizure occur
o Generally, suspect will argue that seizure occurred early and thus behavior has been
protected for a long time
o State argues seizure occurred late and thus suspect had no constitutional protection
before that
Types of seizures
o Arrest Requires Probable Cause
o Stop Requires reasonable suspicion
Seizure line__________________________(official show of authority that communicates to a reasonable person that she is not free to leave)
Not a seizure
o Conversations require nothing because are not a seizure
Consent negates the existence of a seizure; an officer that has consent does not need PC or RS
Test 1: A seizure occurs when police engage in an official show of authority that
Mendenhall
would communicate to a reasonable person that she is not free to leave (objective
test)
Bostick
Was interaction consensual? (if yes, no seizure)
Did police show authority?
o Did police brandish weapons?
o Did police use intimidating tones of voice?

12

Did police take action that were willing to keep an individual in a

place forcefully
Did individual submit to that show of authority?
An officer does not have to advise an individual of her rights in order to avoid
Drayton
implicating 4th amendment protections
Test 2:
*Physical force is applied to the body of the suspect that is sufficient to
communicate to a reasonable person that she is not free to leave and police have
Hodari D
possession or submission
Police engage in an official show of authority that would communicate to a
reasonable person that she is not free to leave (objective test) and that individual
submits
*language says that a slight application of physical force would be sufficient, but almost certainly
untrue (tapping on window of car would not be a seizure)
o

Florida v. Bostick
Officers boarded a bus and walked up and down the aisle talking to people. Officers asked Bostick if they
could search in his bag, and after he gave consent officers discovered cocaine in the bag. Bostick moved
to exclude the evidence on the basis that the officers entry onto the bus constituted a seizure, or at a
minimum interviewing Bostick was a seizure. To support his claim that he was seized, Bostick argues
that he was not free to leave because he was on a bus, and so leaving the bus would have left him
stranded; he also argued that encounter was coercive because police were blocking the aisle and were
armed.
Court finds that the police did not engage in a seizure because the encounter was consensual.
The court establishes that the standard for measuring a consensual police interaction is that an
ordinary person would feel free to go about business. The court rejects Bosticks arguments
relating to being stranded because such a limitation on movement is self-imposedit is not a
reflection of the polices actions. The court reinterprets the standard such that a seizure requires
that the police give the impression that individuals cannot leave. Court finds further that the
encounter was not coercive because the police asked for consent and the interaction was not
sufficiently forceful (the police did not point their guns at Bostick).
Dissent agrees with the standard applied by the court, but disagrees with the courts application of the
standard. The dissent argues that police sweeps are intimidating and the police officers stood in the
middle of the aisle of the bus and thus a reasonable person would not have felt fee to leave.
United States v. Drayton Establishes that officers need not advise bus passengers of right to refuse
cooperation in a bus sweep in order for a seizure to be consensual.
Plain clothes police officers entered a bus and questioned people. The police did not block the exit and
maintained a quiet tone of voice. The police notice two guys wearing baggy jackets in hot weather and
so asked if he could search them. They gave him permission and he found drugs.
Court finds that the officer did not conduct a seizure because the interaction was consensual.
Court re-establishes that in determining if a seizure has occurred courts must consider the totality
of the circumstances. Under this analysis court argue that the court cannot adopt a per se role
requiring the police to advise passengers of their right to refuse. In the situation at hand the court
argues that the situation is not coercive merely because it was on a bus, and it is not dispositive
that the officer displayed his badge because most people are reassured by badges.
Dissent argues that consent means something different and distinct when it is given in the context of
intimidation. Since consent in this case was given in context of intimidation, it cannot be properly
considered consent for purposes of defining a seizure.

13

In US v. Mendenhall court suggests factors that might indicate a seizure had taken place:
o Threatening presence of several officers
o Display of a weapon by an officer
o Some physical touching of the person
o Use of language indicating that compliance with officers request could be compelled
Some argue race should be considered in reasonable person test because minorities tend to
fear the police more; thus reasonable minority is less likely to feel free to leave
In Bostick and Drayton the dissent argues that the test is artificial because people in
conversations with the police do not feel free to leave
o Court seems to believe that the compulsion to stay is a good thing and thus this is not a
cause for concern

A seizure occurs when there is a show of authority and an individual submits. Conversely, when there is
a show of authority and an individual resists, a seizure has not yet taken place.
Brower v. County of Inyo Court held that the use of a roadblock violated 4th amendment right. The
argument is basically that
California v. Hodari D
Hodari fled when the police came around a corner. The police chased him and recovered a bag of crack
that he ditched while running. Hodari contends that he was seized when the police started chasing him
(argues on plain language of Bostick/Drayton definition of seizure). The police conceded that they did not
have PC for a seizure and thus if Hodari was seized when the police started chasing him, the fruits of the
seizure (the bag of crack) were products of an illegal search, and thus not permissible.
State contends that Hodari was not seized until the cop tackled him.
Supreme Court concluded that Hodari was not seized within the meaning of the fourth amendment
when he discarded the cocaine. The court finds that one is seized only when police apply
physical force to an individual and that person is within their control, or when police make a show
of authority that communicates to a reasonable person that he is not free to leave and an
individual submits to that authority. In support of its findings the court makes a public policy
argument that individuals should be compelled to comply with police instructions (and thus
should not be protected when run from police). Argument assumes that police are acting lawfully
within their authority.
Counter to the public policy argument is that 4th amendment is supposed to create incentive for
police (not people), and it is questionable whether people know enough about the law to know
that will be unprotected if they run (or if court had found other way that they would be protected if
they ran)
In opinion Scalia looks to originalism and textualism to justify argumentsthese are not the same
methods of interpretation applied in Katz.
Implication of the holding is that individuals are unprotected until physical force is applied or the police
show authority and people submit
Problem is that it is impossible to know if police are showing authority
o Police can claim were having a conversation, but if someone doesnt want to have one
then can claim that were showing authority to which individual did not submit (I assume
they dont need PC to show authority)
By hinging timing of a seizure on the actions of a citizen (rather than police), the police lose the ability to
determine in advance whether their conduct implicates the 4 th amendment. This creates uncertainty
because it is unclear when someone submits and thus it is unclear when the 4 th amendment is
implicated.

Test 2Hodari Test:

o *Physical force is applied to the body of the suspect that is sufficient to communicate to a
reasonable person that she is not free to leave and police have possession or submission

14

Police engage in an official show of authority that would communicate to a reasonable

person that she is not free to leave (objective test) and that individual submits
Hodari rule raises complicated questions related to controlling/seizing crowds
o Do use of non-lethal munitions count as a show of physical force for a person? If so,
does a person have to be hit by them in order to meet the first prong of the test?
o What does it mean for an individual in a crowd to submit?
o Maybe it is not a seizure when only one area of movement is denied, but all other are still
open (ie crowds can still flee)
o

Warrants and the Meaning of Probable Cause

Background

Once it is determined that the Fourth Amendment applies (that something constitutes a search or
seizure) there is a presumptive standard for permitting the S or S
o Substantive requirement probable cause
o Procedural requirement warrant
o Probable cause gives police the flexibility to act early in preventing crime thus the PC
standard is lower than the standard for finding guilt
As use of the word presumptive implies, there are many exceptions to the warrant requirement
Early case law indicated that when the 4th amendment applied, S & S was never permissible,
regardless of presence of PC
Arguments against warrant/PC requirement for S&Ss interpretation of the const
o Textualist prohibition on S&S says nothing about exceptions for warrants; only says that
warrants must have PC
o Textualist the text was intended to limit warrants, not expand their use (because of
abuse of warrants in colonial times)
Arguments for warrant/PC requirement for S&Ss
o Indiscriminate searches or seizures might expose people to unwanted government
interference without reason
o Imposes limits on executive authority of an executive that may act despotically
Protection offered by 4th amendment
o Magistrate Review requires inferences be drawn by neutral 3 rd party

The Probable Cause Standard

Definitions
Source

Brinegar v. United States

Nathanson v. United States

Draper v. United States
Spinelli v. United States*

Standard
facts and circumstances within the officers knowledge and
of which they had reasonably trustworthy information
are sufficient in themselves

to warrant a man of reasonable caution

in the belief that an offense has or is being committed

An officers conclusory statements are not enough to satisfy PC
Probable cause when:
1. Reliable informant
2. Informant gives such detailed information that warrant
inference of truth
3. Part of information provided is corroborated
Probable cause in cases of informant:
1. Basis of knowledge - Details of how affiant acquired
information
(Indicates are an insider or are relying on inside source)
15

Prediction of future activity that is verified (details)

assume that informant knows information because
if involvement in criminal plan
Informant asserts involvement (1st hand
observation)
if detailed enough, tip may be considered self
verifying
o Why should anything be self-verifying?
2. Veracity/Evidence of truth sufficient detail of criminal
activity that magistrate knows the tip is true; based on
notion that details are evidence of truthfulness
(this condition is not met if information is sort that may have
been overheard at a local bar)
Tip from citizen informant
Prior dealings with informant (track record)
Weight of statement v. personal interest?
Totality of the circumstances test:
Whether, given all of the circumstances set forth in the
affidavit
Including veracity and basis of knowledge AND
Corroboration (lower courts have clarified that not enough
to corroborate just innocuous details, but also fishy details)
Illinois v. Gates*
o There is a fair probability
o that contraband or evidence of a crime will be found
in a particular place
concurrence: corroboration through
investigation gives rise to an inference that
tip of criminal activity is credible
When applying totality of circumstances test question is
Ornelas v. United States
whether historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to PC
A finding of PC requires only a fair probability that a
search/seizure will yield evidence, not beyond a reasonable doubt.
Fair probability does NOT exist for everyone in a public
establishment when police have PC to believe the owner of
Maryland v. Pringle
the establishment is engaging in illegal activity
Fair probability does exist to give police PC over all
individuals in a car when police have PC to believe one
person is engaging in criminal activity (PC over no one in
particular gives PC over all in a car)
Because PC is assessed from the standpoint of an objectively
reasonable officer, it is not necessary that the officer know what she
Devenpeck v. Alford
has PC to believe in order to justify a warrantless search/seizure as
long as from an objectively reasonable standpoint that officer has
PC to conduct the search/seizure.
*Though cases framed in terms of PC when have informant, standard applies even without informant
Parties involved in the Probable Cause Determination
Reviewing Courts After Ornelas, ask the same questions as the police de novo probable
cause determination, but defer to inferences made by police (so not exactly the same questions)
Magistrates Consider same questions as the police make a de novo probable cause
determination
Cops
16

Informants
o Citizen Informant
o Confidential Informant
o Anonymous Informant

Draper v. United States Represents the courts rejection of the notion that it is improper to rely on
heresay to prove PC; however court acknowledges accepting heresay is problematic (thus Spinelli).
A Federal informant told federal agents that James Draper was peddling narcotics. Informant told federal
agents when Draper would get off of a train, what Draper was wearing, and that Draper would be carrying
drugs. The police corroboroated all details but the illegal act; based on that corroboration the police had
PC for a search.
When informant gives police tips, the only allegations that interest the police are allegations of
criminal activity
Spinelli v. United States Established a bright-line criteria for assessing probable cause in cases
involving informants based on veracity and basis of knowledge; case thereby set the stage for the
probable cause guidelines established in Gates. In the case police were informed by an informant that
Spinelli was engaging in gambling. FBI followed Spinelli and saw that he recrossed state lines several
times, had multiple phone lines, and was allegedly known as a gambler. Court found most of these
facts irrelevant, except insofar as they corroborated the tip.
Illinois v. Gates Offers the most recent standard on probable cause in cases of informants.
Policed received an anonymous tip that the Gates were drug dealers. The tip included information about
an upcoming Gates drug buy in which one of the Gates would drive to Florida, and the other would fly to
Florida to drive the drugs back. After the police corroborated the non-criminal allegations, including the
suspicious activity of the Gates staying in Florida for only one night, the police obtained a warrant to
search the Gates house and vehicle. The police discovered drugs and the Gates moved to exclude the
discovery because the police did not have probable cause.
The court found that the police did have probable cause. The court found that the anonymous tip
alone did not provide police with probable cause under the Spinelli test. However, court overruled
the Spinelli test and voice that the proper Probable Cause analysis is a totality of the
circumstances analysis in which basis of knowledge and veracity are components, but alone are
not dispositive. Under the new test the police consider whether given all the circumstances set
forth in an affidavit (including veracity and basis of knowledge) there is a fair probability that
evidence will be discovered. The court argued that the Spinelli test was deficient because if
Spinelli was applied with vigor it would exclude valuable police informant tips, and thus a tip
strong in one prong ought to be able to compensate for a weakness in the other prong. Once the
court applies this test, the court finds that under the totality of the circumstances there was a fair
probability because the information had been corroborated, thus supplementing veracity and
basis of knowledge. The concurrence establishes that the test for corroboration is whether it
gives rise to an inference that the tip of criminal activity is credible.
Gates court motivated by implementing a test that would encourage the use of warrants court
argues that the Spinelli test discourages the use of warrants by holding PC to a higher standard
than after-the-fact PC determinations

Courts finding seems to reflect notion that corroboration of detailed non-criminal facts indicates
that an informant had intimate knowledge of a criminals actions, and thus is more likely to know
about criminal activity.

Argues that an application of the totality of the circumstances test does not warrant an inference that a
search will turn up evidence. Argues that investigation did not corroborate all details thus does not give
rise to a fair probability that the search will reveal evidence.

17

Types of Informants questions of PC and informants arises in the context of the following types
of informantswhich type is involved has implications for the totality of evidence test
o Citizen informant average person who witnesses a crime and goes to the police to
provide testimony
o Police informant individual involved in criminal activity, but known to the police who has
previously provided tips in exchange for money or leniency
o Anonymous tipster

What police need to have PC to believe:

o Arrests police must have PC that the defendant has committed a crime
o Searches that police will find evidence of a crime in the place being searched
Technically seems to be same requirement regardless of what crime police are
investigating, but magistrates seem to apply a slightly different standard when
issuing warrants for different sorts of crimes
Variation in application of PC particularly likely after Gates because of
amorphous standard
Affects of vagueness in PC standard
o Permits local variation of PC standard
Positive permits flexibility
Negative permits abuse
o Reduces power of appellate courts grants most of decision making to magistrates likely
to be familiar with needs of police
Informants and crime prosecution
o Warrant applications relying on tips occur mostly in drug investigations
Tips may be particularly important in this context because are victimless crimes
and thus leave little evidence
o Searches pursuant to warrants usually uncover evidence
May be argument for permitting court to find PC in more circumstances, but
courts that approved highest percentage of warrants had lowest warrant success
rate
o Court argues that magistrate determinations on warrant should be given lots of deference
because encourages use of warrant (imposes higher standard for assertions of PC that
are not supported by a warrant)

Ornelas v. United States Ultimate question of PC should be reviewed de novowithout deferring to

lower court rulings but the court should defer to the police officers and lower courts on all fact finding and
inferences to be drawn from those facts.
An investigator spotted a vehicle that was the type of vehicle often used to transport drugs and with
plates from California (drug source state). The investigator got the DEA agent to run the plates of the
vehicle and the search returned a potential drug connection. The officer waited for the owner of the
vehicle to return and obtained consent to a search of the car. While searching the car the officer noticed
a loose screw and removed a panel to find drugs. D moved to exclude the evidence because his consent
to search did not include consent to remove panels of the vehicle; thus in order to remove the panels the
officer needed PC. However, the lower court found officer had PC to remove the panel. The appellate
court concluded that the lower court did not abuse its discretion in its finding.
During investigation, the investigator also checked the names on the motel registry of the motel where the
car was parked. This was not a search because the information was knowingly exposed.
Court finds first that court should review probable cause determinations de novo, but in doing so
should give due deferences to inferences drawn from the facts by local judges and the police.
Court argues that deferring to the lower court would invest all authority for finding PC in local
judges (in cases where there was no warrant) and would deny courts the authority to ensure PC is
interpreted and enforced uniformly. The court argues further that a de novo review correctly
18

incentivizes the justice system to encourage the use of warrants (because PC determinations
without a warrant are scrutnized more closely through de novo review). Court then remanded for
the appellate court to apply a de novo standard of review to the case.

It is not clear that as a whole the ruling expands protections against abuse of PCsince the court
defers to inferences drawn by local law enforcement, judgments will rarely be revsersed
o Some argue that it is almost like police have been granted as much deference as trial
courts
One explanation for this deference might be that if are relying more heavily on
police testimony (undergoes increased scrutiny), it might induce police to perjury

Maryland v. Pringle A finding of PC requires only a fair probability that a search/seizure will lead to
evidence.
Police stopped a car for speeding and noticed a roll of money in the glove box. The driver consented to a
search of the vehicle and the police discovered drugs. Though the officer could not be certain which of
the three individuals in the car the drugs belonged to, the officer arrested all three. The lower court found
that finding the drugs did not give the officer probable cause to arrest all three individuals.
The Court of appeals reversed the lower courts decision and found that the officer had probable
cause to arrest all three individuals. The court emphasized that a PC determination is not the
beyond a reasonable doubt standard of a trial court, but rather requires only a fair probability.
Thus, the question becomes whether historical facts, viewed from the standpoint of a reasonable
police officer amount to a fair probability that a search/seizure will yield evidence. The court
argues that in this case, because all of the individuals were riding together in a car, that standard
was met. Court qualifies its finding saying that a fair probability does not exist to search
everyone in a public business establishment when the police have PC to believe the owner of the
establishment is engaging in illegal activity.
Ybarra - Fair probability of criminal activity (PC) does NOT exist for everyone in a public establishment
when police have PC to believe the owner of the establishment is engaging in illegal activity. Police
entered a bar where they believed the proprietor was selling drugs. Police searched everyone in the bar
and found drugs on one person. Those drugs were excluded.

What do Police have PC to do?

Devenpeck v. Alford PC is assessed from the standpoint of an objectively reasonable officer, and thus it
is not necessary that the officer know what he has PC to believe, if PC exists from an objectively
reasonable standpoint.
An officer pulled over Alford for impersonating a police officer, but arrested (seized) him for recording their
conversation. Recording their conversation was not a crime and thus the officer did not have PC to arrest
Alford for the alleged offense, but did have PC to arrest Alford for impersonating an officer. The court
found that the officers subjective intent in arresting Alford was irrelevant because that would make the PC
standard vary arbitrarily based on an officers knowledge of the law and would give police an incentive not
to disclose to arrestees the reason or their arrest (because if gave no reason, then wouldnt have to
defend that had PC for that reason). Case raises possible danger that police can arrest for any activity
that seems fishy and justify it after the fact

Explanations of PC standards:
o Search PC to believe that place intend to search contains evidence of a crime
o Seizure PC to believe a person has committed a crime

Uniqueness of the Warrant Requirement

Ordinarily, most legal standards are enforced by after-the-fact reviewif someone violates a legal
standard, that person can be sued
Limits on searches and seizures are enforced by both before and after-the-fact review
19

o Before-the-fact review comes in the warrant requirement

After-the-fact review may be a better standard because it is adversarial, whereas warrant review
is more cursory and so one would expect after-the-fact review to provide more protection
In our legal system S&S with a warrant is strongly preferred over warrantless proceedings,
explanations:
o Ex post review is tainted by knowledge of the findings from the search
o With ex-post review, police have an incentive to perjure themselves to justify searches
after-the-fact when have found something
Potential benefits of the warrant process:
o Slows things down
o Magistrate acts as a buffer
Neutral party
Not tainted by the findings
Warrant process even though there is a process, there is significant variability in application of
the warrant requirement
o Warrants are reviewed by magistrates (hypothetically an unbiased 3rd party)
o From text
Must be supported by an oath or affirmation
Particularly describe the place to be searched and the persons or things to be
seized
Oath or affirmation requirement
o Requirements
Usually comes in the form of an affidavit attached to a warrant application, but
may also come through sworn statements
All circumstances giving rise to PC must be presented to magistrate
o Research studies have revealed that many warrants use boiler plate language and
descriptions (and thus maybe do not provide as much of a safeguard as would expect)
o While prosecutors could be used to help improve the warrant process (clarify what needs
to go into the warrant), prosecutors generally do not want to be involved in the warrant
process
The Magistrate
o Requirements
There are basically no requirements on magistrates, though courts have rejected
the use of magistrates who are paid only for approving warrants
Court has not imposed/provided guidelines to magistrates on minimum standards
for finding PC
Court has upheld that magistrates do not have to be lawyers
Research has shown great variation amongst scrutiny lawyers give to warrants
Permits judge shopping
o In spite of the variability and vagueness in the warrant system, most warrants reveal
evidence
o The benefit of the warrant may be its burden on the policeslows them down and
provides enough of a barrier that police do not want to go through the rigors of getting a
warrant unless think that the search will lead to something worthwhile
The particularity requirement
o Standard: must be specific enough to permit an officer with reasonable effort to ascertain
and identify the place intended
o Court has upheld warrants issued for a floor of a building that permitted them to search
the entire floor, though the police actually only had PC for one apartment on that floor
when officers failure to recognize the warrants mistake (that assumed was one
apartment on the floor) was objectively reasonable
Purposes of the particularity requirement

20

o
o
o
o

Particular warrants support probable cause because ensure that the officers have some
basis for a search/are seeking something
Limits the scope of the search in time and space (not open indefinitely, cant search under
rugs if are looking for a piano)
Ensures people are not wrongly deprived of their property
HOWEVER courts do uphold warrants with some vagueness in them (e.g. weapons,
narcotics, evidence of crime at this time unknown)

United States v. Grubbs Established that anticipatory warrants are constitutional and the criteria for
evaluating an anticipatory warrant is that 1) it is now probable that 2) contraband, evidence of a crime, or
a future will be on the premises 3) when the warrant is executedthis means it is probable that evidence
will be found and probable that the triggering event will occur.
D purchased child porn from the web from an undercover agent. The agent then obtained a warrant to
arrest Grubbs after he had accepted the material. The warrant did not specify the triggering condition
permitting Grubbs seizure so Grubbs moved to exclude the evidence. Though the trial court rejected his
motion, the 9th circuit reversed and granted his motion to suppress. The Supreme Court considered two
questions1) are anticipatory search warrants unconstitutional, 2) is a warrant insufficient for lack of a
triggering condition?
Court held that anticipatory warrants are constitutional and do not need to include the triggering
condition. The court argued in favor of anticipatory warrants that all warrants are anticipatory in
some sense because are based on whether PC exists to believe that evidence will exist in some
place at some future time. The court argues that the triggering condition does not need to be
specified in the warrant because there is no general particularity requirement (only places and
persons need to be described with particularity). Court argues further that police do not even
have to present a copy of the warrant to the SorSd individual (so cant argue that triggering event
needs to be in there so individual is aware of the limits of the search).
Court found that that in order to issue a warrant a court must find that a search is probable to
discover evidence (evidence will likely be there, and the triggering condition is likely to happen).

Anticipatory warrant warrant which is triggered by a future condition

After Grubbs, to issue an anticipatory warrant must have:
o PC to believe will uncover evidence
o PC to believe condition will occur

Execution of Warrants
Definitions of Reasonableness
1. Warrant based on probable cause
a. Execution of warrant must be reasonable (though there is not a lot of clarification on what
constitutes reasonable execution of a warrant)
i. Grubbs represents the trend toward allowing more flexibility in the execution of
warrants

Knock and announce requirement absent some lawful and reasonable interest in establishing
unannounced entry, Fourth Amendment requires police to knock and announce selves before
entry
o Purposes
Allow people to save their door
Protect some privacy interests (allows people to get dressed)(
Protects against violence shootouts in reaction to someone busting into a
house

21

Exception police have a reasonable suspicion that knocking and announcingwould

be dangerous or futile, or that it would inhibit the effective investigation of the crime (e.g.
by allowing destruction of evidence)

United States v. Banks There is an exception to ordinary warrant requirements (specifically to the knock
and announce rule) when officers have a reasonable suspicion of exigent circumstances at the time that
took action.
Police obtained a warrant to search the house of a drug dealer. They knocked on his door, loud enough
that officers at the rear of the house could hear the knock, and then broke through the door after 15 or 20
seconds. The defendant moved to exclude all evidence on the grounds that the manner of execution of
the warrant was unreasonable (because the officers did not allow enough time before knocking in the
door) and the circuit court granted the suppression motion.
Supreme court finds that the evidence gathered during the search is admissible because the
decision to break down the door after 15 seconds was reasonable under the circumstances. The
court recognizes the exigent circumstances exception to the knock and announce rule, and holds
that the exception kicks in if officers had a reasonable suspicion of exigent circumstancesthus
it is irrelevant that D was in the shower at the time of the search because exigency is measured
based on the objective perspective of the officer at the time of the search. The court argues that
this determination must be made based on an analysis of all of the circumstances on a case-bycase basis, and thus does not lend itself to an application of rigid criteria. The court argues that
there was exigency in this circumstance because 15 or 20 is sufficient time for a drug dealer to
begin destroying evidence (flushing it down the toilet); thus it is irrelevant whether or not the
police provided sufficient time for the occupant to reach the door.
Noteworthy that court is basing is ruling on assumptionsthat the prudent drug dealer
would flush drugs as soon as heard the police knock; fallability of this assumptions
demonstrates the deference to police judgment in potentially dangerous situations

Case demonstrates the preference for a case-by-case determination of whether exigent

circumstances exist movement away from rule-like structures to govern reasonableness
determination (saw this in movement from Spinelli to Gates)
Post Banks, the knock-and-announce rule is significantly weakenedbut is read to be a
constitutional requirement, and thus not completely overturned
The 9th circuit had tried to establish a list of discreet criteria to be considered in assessing
exigency, but the court rejected this approach (though those factors can still be considered as
part of a case-by-case determination)
The holding gives trial courts tremendous power to determine reasonableness of violating warrant
requirement
Usually, police must give notice if they search a place
o Since the passage of the PATRIOT ACT, that notice can be delayed for long periods of
time (sneak-and-peak searches)
The first amendment does not impose any restrictions on the reasonableness determination
with a warrant or with PC + exigency police can access information gathered by media or
anybody else without justifying need against a higher standard

Muehler v. Mena Police have significant flexibility in how they can execute a warrant when they can
demonstrate serious physical danger (i.e. a killer with weapons); in cases involving infringements on
personal rights but potential danger to the police, courts balance the competing interests.
Police raided a house where they believe a dangerous gang member lived. The SWAT team crashed into
the house, handcuffed everybody, and detained all found individuals in handcuffs for the duration of their
search. Mena then sued arguing that the police used unreasonable force in detaining her by keeping her
in handcuffs through the entire search.

22

The court finds that the authority to detain an occupant of a searched house gives police the
authority to use reasonable force to detain that occupant, and thus Menas detainment was
reasonable. The court argues that in this case the use of handcuffs was reasonable because the
benefits of the handcuffing (ensuring the police were safe) outweighed the costs of the
handcuffing. The court argues that the government interest in using force to detain will always be
high when there is a threat from dangerous criminals. Thus court overrules the lower court in
finding Menas detainment did not violate the 4th amendment.
Court balances the interests at stake and finds Menas interest in not being handcuffed is
relatively trivial as compared to the police interest in preventing police injury
Concurrence argues that the case should be remanded to determine whether Mena was detained longer
than the search (because the government interest in detaining should have ended at that point). The
dissent also argues that giving full deference to the jury, there is evidence that the jury could have
interpreted to indicate that the use of force was unreasonable (not initially, but in prolonged detainment)
the court points to the fact that Mena was a small woman, she cooperated fully, and the officers didnt
follow standard SWAT procedure.
Los Angeles County v. Rettele Court will permit significant privacy intrusions in instances implicating
police safety. The police charged into the wrong house and found two people naked in bed. The court
found that the officers were justified in forcing the people to stand naked for the amount of time necessary
to ensure there were no dangerous weapons in the room. However, those privacy intrusions must not be
unnecessarily prolonged.
Wilson v. Layne Bringing the media or any third party not related to the execution of a warrant that goes
inside the home violates 4th amendment privacy protections.
Police were pursuing a fugitive. They got a warrant to search one of his possible locations, which
happened to be his parents house. Though the fugitive was not in the house, the police pinned and
detained the fugitives parents while accompanied by two members of the media. The home owners
sued arguing that the scope of the search the authority granted by the warrant.
The court held that media ride-alongs are not constitutional. The court found that police actions
in executing a warrant must be related to that warrant and argued that the presence of media
members was not related to the warrant against the fugitive. The court rejected arguments that
the media served a legitimate purpose in executing the warrant (ensuring the police did not
overstep bounds, protecting rights of Wilsons), arguing that a general public relations benefit
does not outweigh the constitutional protections against intrusion into the home. Rather, the
court found that individuals brought into a home during a search must serve a purpose related to
the execution of that warrant.
Wording of ruling leaves open the possibility that a 3 rd party could ride-along if it was
fulfilling the role of preventing abuses, but overall case seems to imply that 3 rd parties
cannot go into homes
o Conversely, case also potentially implies that 3rd party presence is not limited in
any other situation

Layne is an exception to the traditional all-or-nothing approach to privacy protectionthough the

police have the authority to enter the house, that does not give them authority to bring anyobody
they want to bring into the house
o May merely be a reflection of the heightened privacy interests in the home
2nd Circuit has invoked Wilson to limit perp walks in which an alleged perpetrator is purposefully
paraded in front of the media (even if they do not need to take her anywhere)
o Nevertheless, this finding has been moderated in a separate holding finding that when
the government alerts the media of an arrest and the media films a legitimate perp walk
(one where an alleged perpetrator is being taken someone through public space), no 4 th
23

amendment concerns are implicated because one does not have a legitimate privacy
interest in not being seen in a public place

Exceptions to the Warrant Requirement

Definitions of Reasonableness for 4th Amendment Purposes
Warrant based on Probable Cause
Probable Cause + Exigency
Danger of Physical Violence
Destruction of Evidence
Hot Pursuit of Dangerous Fleeing Felon
Emergency Aid Doctrine / Community Caretaking

Exigent Circumstances
Mincey v. Arizona Exigent circumstances do not provide a limitless exception to the warrant
requirement, but rather are bounded by the time period for which the exigency exists; once exigency
ameliorated the warrant exception ends (scope of search must be tailored to the exigency).
An officer set up a sting operation to purchase drugs from a drug dealer. He burst into Ds house with a
group of other officers, and was shot and killed. Homicide investigators then entered Ds house and
performed an extensive search without a warrant. D moves to exclude all evidence discovered during the
search as a violation of the 4th amendment.
The court holds that information obtained once the exigency no longer existed must be excluded
and that investigation of a murder scene is not an exception to the warrant requirement. The
court recognizes some exigency because it does not question the officers right to enter the
apartment. The court argues that warrantless searches are per se unreasonable. The court
argues further that a crime scene exception is not justified on the theory that an alleged criminal
has forfeited rights to privacy because this view would find a defendant guilty before a trial. The
court also rejects the argument that a crime scene implies an emergency situation; the court finds
that police have the authority to search while a true emergency situation existswhile police are
not sure if other dangerous criminals may be around. Court also finds that no balancing of public
interests suggests that the court should find a murder scene exception because murders are not
substantially worse than any other crimes (and court is not willing to permit warrantless search of
any crime scene)
Consider first what the police needed exigency to do
o The first fourth amendment event was entering the apartmentpolice had the
authority to enter
o Second fourth amendment event involved the police searchthis search is
challenged
Though the police claim exigent circumstances in the case, it is not clear what the exigent
circumstances were

When assessing exigency in a criminal context, examine each item discovered item-by-item to
determine if police has exigency with regard to searching for that item (once exigency is
ameliorated, e.g. suspect is neutralized, police cannot continue the search)
o In exigent circumstances cases involving danger to the police, police can search for
people and search for weapons
Police can thus search anywhere it is objectively reasonable to think police might
discover people or weaponsthus search bound geographically, temporally, and
spacially by exigency

Types of exigent circumstances cases:

o Exigent circumstances justify warrantless entry, but police overstay exigency (Mincey)
24

Fleeing suspects delaying would gravely endanger officers lives or the lives of others
Warden v. Hayden police told that a robber entered a house; police enter house
and find man, guns, and money
Justification deference to police in context of possession of guns
court willing to give police extra flexibility when police are in danger of
being killed; once that danger no longer exists (once suspect found),
police must stop search
Destruction of Evidence if officers do not search immediately, evidence will be
destroyed
Mendez v. Colorado police can search a hotel room from which odor of burning
marijuana is coming (even though offense minor)
United States v. Dickerson no need to knock and announce when there has
been a noisy encounter outside because people may already be inside
destroying evidence
Knock and Talk Strategy Police listen at door, knock on door, and peer inside to
see if can spot any drug activity, and enter and search if they see any
Declared unconstitutional in United States v. Johnson, but only because
court disbelieved testimony that officer had PC (had seen drug activity)
4th amendment implications police listening at door maybe like
bugging the phone booth; police crossing your curtilage, etc.
Community Caretaking if officers enter house to protect a community member (e.g. the
neighbors have not seen someone leave the house in several days)
Reasons allowed
Absence of law enforcement motive mitigates privacy concerns
Potential for overzealousness reduced when police looking out for
community
Concerns police might invent community caretaking motives
O.J. Simpson Case Police found glove during an unwarranted search
that they claimed was justified because they were concerned about OJ
Simpsons health because they had seen a spot of blood on his car
o Explanation seems unlikely since took four officers to the
Simpson house

Emergency Aid Doctrine / Community Caretaking

Brigham City v. Stuart Police have exigent circumstances to enter and search a house, without knocking
and announcing when the police have an objectively reasonable basis for believing an occupant is injured
or seriously threatened.
The police responded to a noise complaint. From outside the back door the police saw a drunken
teenager punch an adult in the face. The officer entered the door and announced his presence, but no
one noticed him; he then entered the center of the room and the altercation stopped. The officer then
arrested Ds for disorderly conduct, intoxication, etc. The lower court suppressed the evidence found after
the police officer entered the house because it did not give the police officer probable cause to believe
that someone was very seriously injured.
Court finds that the officers search of the home without knocking and announcing was reasonable
and thus did not violate the 4th amendment. The court acknowledges that searches without
warrants are presumptively unreasonable, but argues that there is an exigency exception to the
warrant requirement to assist persons seriously threatened. The court rejects any arguments that
the exigency exception based on community caretaking should be limited to instances where
police enter the house to protect (rather than to make an arrest); the court argues that existence
of exigency is an objective analysis). Under an objective analysis the court finds that the officers

25

entry was plainly reasonable because the risk of violence was ongoing, and it was reasonable for
the officer to believe that the violence could escalate.

Standard Police allowed to enter when have an objectively reasonable basis for believing an
occupant is injured or seriously threatened
o Objectively reasonable basis for believing an individual might need help
o Objectively reasonable basis for believing violence is just beginning (there will be future
violence)
This standard marks a significant departure from the prior law the Utah
Supreme Court, for instance, found that emergency doctrine only kicked in when
police had reason to believe someone was unconscious, semi-conscious, or
dead
Litigating these cases
o Break down the moment at which the 4th amendment is first triggered
4th amendment triggered when police enter the back yard (curtilage)
Justification police had PC because saw juveniles drinking in the
backyard (implies PC sufficient, warrant not necessary for entry onto
curtilage in this context)
4th amendment triggered again while police enter house
Justification Emergency aid doctrine
Case is important because it provides nation with clarification on the emergency aid doctrine
o Concern in these cases is that police can manufacture exigency
Response ***the authority to search is limited to searching to address the
exigency (no unbridled access)
Brigham City is a Utah Supreme Court decision, though the ruling does not apply nationally, many
states have elaborated similar emergency doctrines
Rationale for holding Dual role of police as enforcers and protectors in our society; police
officers motivations in entering home are different when they enter to protect people versus when
they enter to arrest/punish people and thus different limitations on police entry into the house
should apply in each situation
o Demonstrates societal concern for police role in domestic disputes especially, but also to
investigate when an elderly person hasnt been seen in a few days, etc.
There is some thought that because of the dual roles of police officers, different rules/limits on
police authority should apply depending on which role they are filling
o However, if different rules should apply, how should the law decipher whether police
entered a house for punitive or protective measures?
Consider preferences of people inside the houseoften wont reveal a clear
answer because police entry often involves protective measures for one person
in the house, but punitive measures for someone else in the house?
Consider subjective intent of police court in Stuart rejects this approach, but it
has been accepted in other jurisdictions
Consider objectively what one would expect people inside the house to want
Because there is no good clear way to distinguish when police are in a caretaking role, the law
applies a uniform standard and allows police to enter homes when fulfilling a community
caretaking rolecertain rights are thereby forfeited so that the police can better protect people

Destruction of Evidence
Background
Vale
Police arrest a man outside of his home who is suspected of drug dealing
The mans wife and brother show up to the house; the police use their return as an excuse to
search the home on the basis of an exigency for destruction of evidence
Supreme Court finds the search unconstitutional
26

Court motivated by the notion that the officers could have obtained a warrant to search
the guys home when they got the search warrant for the guy, but they didntthe
destruction of evidence doctrine thus use to circumvent the warrant requirement for entry
into home
Supreme Court defines a new standard for searching the home police need an objectively
reasonable basis for believing evidence is in the process of being destroyed
Lower courts softened the standard by substituting one of the following standards:
o Police have exigency for destruction of evidence if they have an objectively reasonable
basis to believe there is a reasonable threat of the destruction of evidence OR
o Police need an objectively reasonable basis for believing evidence is in the process of
being destroyed in order to search, but Police are allowed to secure the premises while
they get a warrant
o

Welsh v. Wisconsin Police do not have exigent circumstances to enter a home for fear of destruction of
evidence when the crime at issue is relatively minor (essentially overturned in next case).
D was seen driving into a field where he abandoned his car. Witnesses reported that D was very drunk.
Police used the vehicle registration to locate Ds home, and then entered the home without a warrant to
find D drunk. D moves to exclude the evidence as the subject of an illegal search.
Court holds that in assessing exigency, the court must consider the gravity of the underlying
offense, and that it is almost impossible to rebut the presumption that a warrant is necessary to
intrude into the home when the crime in question is relatively minor. The court argues that the
police were not in hot pursuit and there was little threat to public safety because D had already
abandoned his vehicle.
The dissent argues that a test of exigency based on severity of a crime will hamper law enforcement by
introducing additional uncertainty into the consideration of whether exigency exists.

Demonstrates the hierarchy of privacy protectionswhile police could have arrested D if found in
public, police did not have the authority to enter his home because homes are entitled to
heightened protection
Some concern that if the courts looked to punishment of a crime to determine exigency, it would
give the legislature an incentive to inflate sentences

Illinois v. MacArthur If police have probable cause to believe that a crime is occurring and a reasonable
basis to believe that if they do not enter a home evidence will be destroyed, police may use the least
restrictive means available to secure the evidence while a warrant is obtained (if possible).
Police accompanied a woman to her trailer to keep the peace as she packed her belongings. When she
was leaving she told the police that her husband had dope in the trailer. When the man exited the trailer,
police prevented him from returning inside to the trailer while another officer obtained a search warrant;
when the man needed to enter the trailer to place a phone call, the police officer accompanied him. The
man seeks to exclude the evidence of the dope found during the search on the basis that 1) keeping him
outside was an illegal seizure, 2) accompanying him into his house without a warrant was an illegal
search.
Court finds that the warrantless seizure and search were not unreasonable. The court argues that
1) the police had probable cause, 2) had reason to believe that D would destroy evidence, 3) used
the least limiting approach possible, 4) restrained D for a relatively very limited period of time.
The courts holding implicitly overturns the holding in Welsh protecting search of the home,
except in that a search of the home may warrant slightly more protections than other approaches.
Concurring opinion when D was inside the trailer, the police had sufficient reason to believe that
the evidence would be destroyed to warrant the polices entry without a warrant. Thus, police had
authority to use less invasive measure to achieve the same ends.

27

Court potentially influenced by the fact that they could have placed D under arrest while getting
the search warrantthus means used were considerably less restrictive
Fact that in this situation the police could have arrested D without a warrant, but could not
have entered his home reflects the hierarchy of privacy interests under 4 th amendment
considerations the home is granted more protection than any other space
Dissent argues that the search was unconstitutional because the crime was relatively minor and
implicates major privacy concerns.

Standard that emerges from the case; if police are faced with a destruction of evidence problem,
police can use the least restrictive means possible to maintain the security of the evidence;
typically this means the police have:
o PC
o Objectively reasonable basis to believe there is a reasonable threat of destruction of
evidence
o Police use the least restrictive means possible to secure the evidence
o As little time passes as possible (police infringe on rights for as little time as possible)
Litigating the case
o Police have probable cause
Veracity Tip from citizen informant meets the veracity requirement
Basis of knowledge requirement met because informant claiming first hand
knowledge
Issues confronted
o Can police keep D outside while they get a warrant
o Can police follow D inside when he went in to get things
Court answers the second question by answering the firstif police can keep
outside because of exigency caused by potential destruction of evidence, then
can follow him inside
Court does not overtly explain why the court might have justification for temporarily seizing D
(seizure), but not for entering his house to search
There is some concern that the exigent circumstances exception is easy to manufacturepolice
can always find exigent circumstances if the police think a suspect knows he is suspected of a
crime

Plain View Doctrine

Elements
1. Police lawfully occupy the place from where view / observe the item
a. Item is in plain sight/plain smell (implied in 1)
2. Police have lawful right of access to the item can lawfully get to a place where can touch item
3. Incriminating character of the item is immediately apparent PC

Doctrine operates when police want to seize an item when they are searching pursuant to a
warrant or warrant exception and find something else incriminating
Introductory Case
o A guy was speeding and had a cracked windshield
o Officer pulled guy over and looked into the car to identify the VIN number (as he was
legally allowed to do
o While looking, he saw a gun handle sticking out from under the drivers seat
o In context, officer was allowed to seize the gun based on the plain view doctrine

Arizona v. Hicks Defines scope of the plain view doctrine: plain view doctrine does not permit any
additional searches, only the seizure of an item in plain view.

28

Officers obtained a warrant to search an apartment when a bullet was fired through the floor of the
apartment, injuring a man in the apartment below. While officers were searching, an officer noticed some
particularly expensive stereo equipment in an otherwise poor apartment. He picked up the stereo and
turned it over to obtain the serial number and called in the serial number to police headquarters. He
learned that the stereo had been stolen during an armed robbery. The court then considers whether
picking up and flipping over the stereo constituted an unconstitutional search.
The court finds that recording the serial number was not a seizure, but moving the stereo
equipment was a search, and thus was an unconstitutional invasion of privacy. The court finds
that taking action unrelated to the objectives of an authorized intrusion (performing any
unwarranted searches) constitute new invasions of privacyin this case the action was unrelated
to the objectives of the authorized intrusion because the police were searching for weapons or
suspects, neither of which could have been under the stereo. The court finds next that police may
seize evidence in plain site without a warrant only in certain circumstancesthese circumstances
appear to be when obtaining a warrant would entail inconvenience or risk to the police. The court
argues that there is no justification for permitting police to seize an item for which police could
not have obtained a warrant, had police known the item was on the premises. The court proceeds
to reject the dissents view that the rules that the search can be justified in this instance on the
basis that it constituted something less than a search because defining tiers of searches would
introduces uncertainty into the analysis.
Dissent argues that if the serial number had been visible it would not have been protected (because
recording was not a search), and thus the line drawn by the majority is arbitrary. Dissent advocates an
interpretation of the 4th amendment in which a search cannot be justified under the plain view doctrine, by
a cursory inspection can be justified as long as it is accompanied by reasonable suspicion. The court
dissent argues that a cursory inspection involves no exploratory rummaging, and thus that some brief
searches are so minimally intrusive that they are justified on the facts of a case. In other words, potential
gains for police are big, but potential costs to individuals are small.

Litigating Hicks
o Problem is that police expanded scope of legal search by picking up stereo
To litigate, argue that could have found weapons under the stereo
o State concedes that did not have PC to look for stolen stereo equipment
State had plausible arguments for PC for searching stereo equipment had
found guns and a ski mask
The plain view doctrines give PC for additional seizure only when an officer is already engaging in
a lawful activity and is legally in a place where she can gain physical control over the thing
Criticism of Hicks
o Reasonable Expectation of Privacy
Scalia finds search unconstitutional because produces a new invasion of
privacy
He omits to consider (per Katz) whether owner had a reasonable
expectation of privacy as almost all litigators would have considered
o May just reflect Scalias previously vocalized view that Katz test
was wrong
o Scalia suggests the default arrangement is warrant is required warrant is required
Scalia focuses on fact that officer lacked PC to rule on the issue; lack of PC is
related to the warrant requirement
In focus, Scalia does not consider directly whether officers actions were
reasonable, as plain text of the 4th amendment would suggest the inquiry should
be (instead adopting the view that reasonableness requires a warrant)
In this way, court concedes loss of privacy might be marginal and that
loss to law enforcement may be great (suggesting activity is reasonable),
but does not find that activity is acceptable
29

Like exigent circumstances doctrine, plain view doctrine serves to effectively limit officers ability
to conduct wide-ranging searches of private dwellings absent a warrant (even with a warrant)
The rationale behind the plain view doctrine drives how it will be applied; rationales
o Inconvenience and risk
Inconvenience is probably not alone
Risk suggests plain view doctrine should be applied only when there is some
exigency when thing seen involves weapons or drugs
If exigencies dont exist, then probably cannot use the plain view
doctrine! (MacArthur), but rather should get a warrant
Reason that need exigency is that the court assumes a warrant is
required and thus there must be justification for any exception to the
warrant requirement
o If are legally there, then are not committing any additional invasion of privacy suggests
broader application of plain view doctrine

Horton v. California Eliminated the inadvertently discovered requirement of the plain view doctrine.
D robbed the leader of a coin club. Police obtained a warrant to investigate Ds house for proceeds of the
robbery, but due to an oversight the warrant did not include ability to search for guns (even though police
knew guns were likely to be in the house). The police discovered guns in plain sight and seized them; D
moves to exclude the guns on the basis that the guns were not discovered inadvertently.
Court finds that evidence does not need to be discovered inadvertently in order to qualify for the
plain view doctrine. Court explains the contours of the plain view doctrinethe doctrine requires
that 1) the evidence is in plain site, 2) the evidence is plainly incriminating, 3) the officer is lawfully
in a place where saw the thing, 4) the officer has lawful access to physically possess the object,
but the object does not need to be discovered inadvertently. The court argues that the
inadvertence standard undesirably injects subjectivity into the inquiry because it is based on what
the officer was expecting to find. The court argues further that individuals are already protected
because officers have no reason not to include something in a warrant, if they have PC for it
because doing so will expand the lawful scope of their search. The court also argues that the
inadvertence requirement may lead to the exclusion of valuable evidence for which officers did
not yet have sufficient evidence to develop PC (may suspect will find something because usually
do in that situation, but dont have evidence to look for it). Court argues further that as long as
the search does not exceed beyond the scope of the warrant, the search does not implicate any 4 th
amendment issues.

Reason for inadvertence requirement courts concerned about pretext (inventing justifications for
a search so that can actually search for something else)
Concern is that if police get warrant to search for evidence on a crime are almost certain a
criminal committed when suspect the criminal of other crimes, any evidence found to support
crimes they suspect the criminal of committing will be inadmissible
o Police could do a lot more investigation to get PC on other crimes, but effectively raises
costs for investigations of the most dangerous suspects (those suspected of several
crimes)

The Automobile Exception

Question of Automobile Exception are there any contexts in which police possess a vehicle but must get
a warrant to search it

4th amendment law related to automobiles has evolved over time as automobiles have become
increasingly common
Developments in 4th amendment law related to automobiles:

30

o
o
o

o
o

Carroll v. United States Police can search a vehicle without a warrant when the police
have PC and if obtaining a warrant is not reasonably practicale.g. the vehicle is in
motionbecause of the exigency implied by the fact that vehicles can be driven away
Argument automobiles are fleeting targets so there is an exigency that warrants
seizing them; there is no hierarchy of 4th amendment events so if can seize them,
then can search them
Analysis proceeding from perspective of innocent person innocent
would rather police search immediately so can proceed on way
o Though courts deny hierarchy of 4th amendment events for
vehicles, it seems likely that courts endorse such a hierarchy for
homes
See MacArthur can seize an individual to secure
house while obtain a warrant
Dissent concerned that negatives criminal activity should not close eyes to
requirements of fourth amendment
Chambers v. Maroney Exception to warrant requirement to search a vehicle extends to
instances where police have already impounded the vehicle if the police could have
searched the vehicle when it was impounded because of concern that would force police
to search vehicle before impounding in potentially unsafe situations for police
Again, case only extends to vehicles that were moving when apprehended
Suggests reasonableness as the requirement for addressing whether search is
permissible, rather than warrant
Carroll/Chambers justified on diminished expectation of privacy in a vehicle:
Individuals are forced to have their vehicles inspected so the public has
access to a vehicle
Vehicles are made for transporting people in public places; people could
be in an accident at any moment and the contents of their car might be
thrown into the public (this is distinct from the home or luggage where
one protects privacy and thus has expectation of it)
o Possible exception includes a car parked at home however this
exception is not to protect the car, but rather to protect the home
(and this probably isnt good law any more)
In some case, Carroll and Chambers was extended to vehicles parked in a public place
(again, because of mobility of vehicle)
South Dakota v. Operman; Cady v. Dombrowski authority to search vehicle extends to
all parts of vehicle (including trunk and glove compartment)
Exception to automobile exception for private containers
United States v. Chadwick Police do not have the authority to search containers
within a vehicle just because the container is put into a vehicle
Police wanted to search container so waited until it was loaded into a
vehicle
Court rejected diminished expectation of privacy argument because
expectation of privacy high in locked luggage
Sanders Extended Chadwick to apply to closed containers (a suitcase), even if
police wait until the vehicle is moving
Robbins Protection of containers within a vehicle is extended to cover even bricks
wrapped in opaque plastic
Why doesnt this change analysis of tape?
United States v. Ross qualifies exceptions to automobile exception when police have
PC that extends to entire vehicle, scope of a search extends to entire area in which
object of the search may be found and is not limited by possibility that will require
separate acts of entry; scope of search not defined by nature of container, but by object
of search and where have PC to look
Rule after Ross:
31

If PC is container-specific, must have a warrant

If PC is vehicle-general, police can search anything (even private
containers)

California v. Acevedo Case overturns exceptions to automobile exception and finds that different
standards do not apply to searches depending on whether PC is container-specific or vehicle-general.
Police received a tip from a federal DEA agent that a package was being sent through the mail
containing drugs. Police seized the package and arranged to have it picked up as scheduled so
police could follow the recipient back to his home. After recipient entered home, D arrived to the
recipients home and left carrying a brown paper bag that he then placed in his trunk. The police
then stopped him, fearing a loss of evidence if they allowed him to get away. Police opened the
trunk. Lower court cited Chadwick in excluding the evidence because PC was item-specific.
Court holds that the law does not distinguish based on whether PC is container-specific or vehiclegeneral, and thus police have the authority to search all containers found in a vehicle without a warrant, if
the search is supported by PC. The court argues that the case closely resembles Ross and considers
whether Ross requires police to obtain a warrant to open a sack in a moveable vehicle; court concludes
that Ross does not require a warrant to open the sack. The court argues that there is no principled
distinction between a container found in a general search and a container found in a specific search
warrant treating them differently. Court argues further that there are few privacy implications involved in
distinguishing between the two, though there is a substantial law enforcement interest in treating them
both alike. Court argues further that privacy concern may swing in favor of permitting police to search
containers in vehicles because it implicates privacy concerns less than forcing police to search for
evidence in the entire vehicle (everywhere else). Court argues further that the prior rule introduced
uncertainty into the system which complicated police activity and also ironically limited police authority to
search in the places where they were most likely to discover contraband (while allowing search
elsewhere).
Concurring (Scalia) Does not assume a warrant is required. The only thing necessary for a 4 th
amendment search is reasonableness (on plain language); thus inquiry is into whether a search is
reasonable under the circumstanceson this basis ruling is not ground breaking, but merely extension of
past inquiries into reasonableness.
Dissent argues that court should maintain the distinction between item-specific and vehicle-general
searches. Dissent argues that the distinction provides a restraint against police practice and represents
the policy judgment that the decision to invade the privacy of an individuals personal effects should be
made by a neutral observer (magistrate). Court has replaced prior anomaly in jurisprudence with a worse
anomaly in which it is acceptable to search an item if someone puts it in their trunk, but not if they are
carrying it. Also rejects notion that prior standard put serious strain on law enforcement.

In Acevedo, court backs down from assertion that one has no privacy expectation in a car--acknowledges that expectations of privacy in parts of a car and luggage may be the same, but
finds that exigency applies to containers in vehicles
o After Acevedo/Houghton, officers still need PC to search packages outside of
automobiles (Chadwick- heightened expectation of privacy; no exception to warrant
requirement for luggage)
However- arguments for searching inside of autos could apply to searching
packages anywhere maybe suggest reasoning moving in direction of
eliminating the warrant requirement
California v. Carney Automobile exception applies to mobile home
o Lesser privacy expectation derives from vehicles capacity to drive on highway
Previously, cases imply exception applies because of exigency (though
Chambers suggests exigency is not the real problem, or courts will find
constructive exigency)

32

Leads to question of what privacy expectation has to do with warrantsisnt privacy

expectation related to requiring PC, which is required whether or not need warrant?
May suggests a tougher PC standard when need a warrant (PC+ versus PC)
While court overruled Chadwick, court did not overrule Sanderswarrant is still required to
search footlocker
Car search exception lowers cost of searching cars
o If no exception, would raise cost of searching cars, and presumably would lead to fewer
car searches
o Simultaneously would lower the relative cost of other searches
This would thus probably lead to more house searchesthus greater privacy
protection for house may mean overall more privacy intrusion
General Point: making searches outside home easier to justify may have effect of
limiting number of home searches and make for increased privacy protection
Argument for the container-specific (need warrant) / car-general (no warrant) rule containers
are easier to secure than a vehicle, and one has a heightened expectation of privacy in a
container
o

Wyoming v. Houghton Police officers can search even private belongings within a vehicle (e.g. a purse)
when belongings are capable of concealing the objects of the search because of the likelihood that
everyone in a car is working together.
Police pull over a car. The driver has a syringe in his pocket that he tells the police he intends to use to
take drugs. Police then search the vehicle. The officer found fresh needle marks are a passengers
arms, and elect to search her purse where the officers found drugs. The appellate court found that this
search was illegal because searches are illegal when they involve the search of the personal effects of a
passenger who is not suspected of criminal activity.
The court finds that officers with PC to search a car can inspect passengers belongings in the car
that are capable of concealing the object of the search. Court argues that should first consider
original intent of the Amendment to determine if search is permissible, but where that does not
yield a result, court does not adopt the warrant requirement interpretation, but rather asserts that
it must evaluate the search under traditional standards of reasonableness by assessing the
privacy intrusion against the legitimate government interest. Court argues that under the original
meaning of the amendment as interpreted in Ross, search of items contained in a vehicle is
permissible, and there is not a convincing reason for restricting the application of this logic to
vehicle passengers. Court proceeds to balance privacy interests against law enforcement
interests and finds that permitting a search accords with the balancing test. Court argues that
passengers possess a reduced expectation of privacy and that government interests are
substantial because passengers are often engaged in a common enterprise with the driver and
might be able to hide contraband in passengers affects, or passengers might start claiming al
incriminating evidence in the vehicle.
Dissent writes from perspective of warrant requirement and argues that in prior case on search of
passengers, the warrant exception did not apply (US v. Di Re). Argues that states legitimate interest
does not outweigh privacy concerns because spatial association does not mean that passenger and
driver are in association. Argues further that the rule could be every bit as unambiguous as the majoritys
view, but it would just protect more privacy.

After Acevedo the authority to search an automobile includes the authority to search all
containers therein (period, full stop)
United States v. Di Re Searches of passengers clothing not included within a lawful search
o Wyoming v. Houghton Searches of passengers personal items is within a lawful search
Thus whether police can search a jacket may depend on whether passenger si
wearing the jacket

33

Importance of Houghton may be its methodology:

o First consider whether action was regarded as an unlawful search or seizure under
common law when Amendment was framed
If no answer, then:
o Consider balance of individual privacy and law enforcement need

Vehicle Search Case Exercise

Evidence subject to suppression

o Wifes testimony
o Defendants original statement
o Physical evidence knife, duct tape, clothing, fluids, audio tape
Ds confession
Ds map
Victims body
After wifes statement, have PC to:
o Search vehicle
o Search farm (PC probably not necessary because of open fields doctrine)
o PC to search home (because he took wife back to home)
o Arrest D
Warrant Requirement
o Search vehicle no (auto exception)
o Search farm no, nothing required
o Search home yes
o Arrest no (have veracity and basis of knowledge)
PC to search vehicle
o Issue with audio tapethe audio tape is a container inside the vehicle
The scope of the search is bounded by PC (whether or not are searching
pursuant to a warrant)
PC is evidence, not hunches; state must justify listening to tape based on
actual evidence
D argues (plausibly) that searching the tape was not reasonably related to
evidence (PC)
Arguments to admitting tape:
o Listening to the tape was not a search
One has no reasonable expectation of privacy in a tape because it was
knowingly exposed to the public any one who rode in the car could have
pushed it into the tape deck and listened to it
o Inventory
Police had to inventory/catalogue everything in the car to protect Ds possessions
Thus though listening is a 4th amendment search, it does not rest on PC,
but on protecting D
o Inevitable discovery
Wife referred to tape in later conversations; eventually would have listened to
tape and discovered its contents

Arrests & Search Incident to Arrest

For an arrest in public, no warrant is required

An arrest is a seizure
Sources of legal rules that govern arrest:
o Common Law
Misdemeanors Arrests for misdemeanors without warrant were prohibited
except for breach of peace in officers presence
34

Felonies warrantless arrests generally allowed as long as reason to believe

arrestee had committed a felony
o Statutes
o The Constitution
All custodial rules must be based on PC
Constitutional rule on warrants unclear in at least some situations can arrest
without a warrant
United States v. Watson
Arrest Watson without warrant on a reliable tip that he had stolen credit cards

Court finds statutory language to indicate it is not unreasonable under Fourth Amendment for
postal inspectors to arrest without a warrant if have PC); court analyzes precedent and discovers
rule on arrests for felonies without warrant (in reality, the history and statutory language are
ambiguous. Court finds fact that CL accepted warrantless arrests indicates that it is not contrary
to constitution. The court does not balance the interests (as the court would now).
Concurrence noted anomaly created by courts decision because arrest is a seizure and
constitutional provision seems to impose same limitation on searches and seizures; also notes
anomaly that arrest is much more invasive personal intrusion than a search (even a search of the
home) ,but ultimately defers to history on judgment that not allowing could severely hinder law
enforcement
Dissent Argues warrant should be required, but warrantless searches should be allowed for exigencies,
and exigency will usually exist. Dissent argues that CL does not permit warrantless arrest as majority
indicates because CL felony definitions were very different and many crimes now considered a felony
were then merely misdemeanors; argues further that long-standing practice does not immunize the
practice from scrutiny. Dissent argues further that there is no better reason to trust the biased view of a
police officer that there is PC for an arrest than view that there is PC for a search. Dissent argues further
that there is no significant government interest because can arrest without a warrant if there is an
exigency.

Balance of interests in arrests

o Privacy considerations in arrest
Invasion and disruption of privacy which stem from arrest are ordinarily much
greater than from a search
Arrests are frightening and humiliating, involve use of force, may occur in
public, are taken down to station and finger printed
Modern rules governing arrest
o Misdemeanors warrantless arrest allowed for offenses committed in officers presence
and for certain offenses committed outside presence (e.g. domestic abuse)
o Felonies warrantless arrests based on PC (CL rule)
Riverside v. McLaughlin Defendant arrested without warrant and held must receive a judicial
determination of whether arrest had PC within 48 hours
o Hearing within 48 hours not dispositive on permissibility if can prove hearing
unreasonably delayed (e.g. for gathering more evidence)
Law suggests arrests are not as important (invasive?) as house searches or at least suggests
Fourth Amendment privacy protections are greater than liberty protections
o Implication of this suggestion is shifting of legal protections from poorer people to
wealthier people because wealthy are more likely to have a large home, which is offered
the most protection
Watson suggests that dissents suggestion would burden judicial system with endless suits on
existence of exigent circumstances
Arrests inside homes
o Payton v. New York court struck down NY state statute that authorized warrantless
entries into home for making felony arrests
35

However, court did not require the use of search warrantsarrests warrant
sufficient as long as unbiased magistrate reviews
Steagald v. US Arrest warrant not sufficient to search home of someone other than the
arrestee
Court found drugs when went to arrest someone at someone elses house
because warrant did not protect the other persons privacy interests (magistrate
did not review PC as to the individual whos house was searched)

Atwater v. Lago Vista Elucidates the relationship between the fourth amendment and state lawthe
Fourth Amendment does not prohibit warrantless arrests for minor criminal offenses, and thus does not
require case-by-case determinations of reasonableness for misdemeanor arrests; to determine if a
warrantless arrest is reasonable need 1) PC to believe crime occurred, 2) arrest not made in manner
unusually harmful to privacy interests.
Atwater was pulled over and her children were riding in the front seat without a seat belt. The officer had
previously pulled her over for this violation before. The officer then arrested the woman and booked her,
though she was released shortly thereafter. The woman then sued for damages asserting that she had
been unreasonably arrested. Trial court and appellate court rule for summary judgment in favor of the
city (police officer).
The court finds that the fourth amendment does not extend to restrict arrests for violation of
relatively minor crimes, and thus does not require a balancing of interests test. The court first
embarks on an assessment of the history of arrests for misdemeanors in order to infer whether
warrantless arrest for a misdemeanor would have been considered unreasonable; the court finds
the assessment inconclusivethe court specifically points to English statutes that permitted
peace officers to make arrests for relatively minor non-violent offenses. Court argues further that
actual practice around the time of the constitution authorized local officers to make warrantless
misdemeanor arrests. The court next finds that it will not create a new rule declaring warrantless
misdemeanor arrests incongruent with the fourth amendment. The court argues such a rule
would require sensitive case-by-case determinations of government need, and that the court has
previously rejected compelling such determinationsdetermining the severity of the crime (and
thus whether it is a felony or misdemeanor) may vary based on factual determinations that are not
easily decipherable. The court argues further that the arrestees rights are already protected by a
right to magistrate review of the arrest within 48 hours. In the specific case, the arrest was
reasonable because the officer had PC to believe Atwater had committed a crime and the arrest
was not made in a manner unusually harmful to privacy interests.
Dissent argues that in the absence of a clear common-law rule related to misdemeanor arrests, the court
should balance the interests at stake. The dissent argues that the individuals personal liberty interests
are particularly high given that arrests are violent and the arrestee may be detained for up to 48 hours.
Given this interest dissent would restrict ability to arrest for fine-only offenses unless the officer is able to
point to specific and articulable facts that reasonably warrant an arrestin other words, the interests of
the city are viewed in contextthe dissent considers not general police needs, but needs to meet any
threats in the given situation.
Concern in dissent reflects concerns over search-incident-to-arrest; if they can arrest for a misdemeanor
crime, police may start arresting for these crimes so that they can searchthis leads to concern over
profiling

S Ct hesitant to say that offense is trivial (because kids can die when ride in front seat and are not
buckled in
Majoritys opinion demonstrates ascendancy of originalism in Fourth Amendment law
o Criticisms of orginalism in Fourth Amendment context
18th century rules were unequal and codified class privilege
Dramatic improvements in technology may make analysis of what government
does with information very important but 18th century technology was so different
that original intent is not applicable to these emerging practices
36

Critiques of majoritys finding that a more ambiguous law would be unadministrable

o Police are forced to make quick decisions without knowledge of all the facts,
o BUT police receive fairly detailed legal training and are frequently in court
Dissents more vague standard wouldnt necessarily insulate against profiling
Arrest power may apply in some circumstances even without PC to believe crime has been
committed
o United States v. Awadallah upheld material witness detentions (detentions to secure
testimony when it is thought that testimony could not be secured with a subpoena)
Permitted only as long as are not unreasonably prolonged
Police can arrest for minor crimes and for fine-only offensescalls into question whether are any
real limits on arrest power

Arrest Present Requirements (Still qualified by other exceptionsparticularly exigency)

In Public
o PC sufficient for custodial arrest
For an arrest without a warrant, must bring before a magistrate for a post-arrest
review of PC within 48 hours
Remedies: 1) try to obtain release, 2) try to get evidence excludedmost
show a causal connection between illegal detention and evidence (e.g. a
confession that wouldnt have gotten absent illegal detention)
Example Watson, Atwater
In-Premises (on private property)
o Example Payton, Steagald
o Arrestees Home
Need arrest warrant, but not search warrant reflects view that it is reasonable to
think that the individual is likely to be at their house; privacy interests still
protected because have magistrate review of warrant
o 3rd Partys Home
Need Search Warrant (because 3rd party is not protected by arrest warrant)
Remedies
o possibly none for person arrested because probably doesnt
have standing to challenge arrest
o Exclusion rule for owner of house
As a result, police dont arrest in 3rd partys home because can just wait until
arrestee leaves house and arrest without paperwork

Search Incident to Arrest

Police have some authority to search the place where the arrest is made
Evolution of doctrine
o Weeks v. United States asserted that the right to search the person of the arrested was
always recognized in CL
o Agnello v. United States Search incident permits search of the place where the arrest is
made in order to find and seize things connected with the crime and weapons that might
be used to escape from custody
o Marron v. United States search-incident authority extends to all parts of premises used
for unlawful purpose
o Cutting back the scope of the search incident doctrine a few cases then cut back the
scope of the search incident doctrine because there was ample time to get a warrant
o Court then returned to broad authority

Chimel v. California Limits search incident to arrest to the arrestees person and the area from within
which he might obtain a weapon or destroy evidence

37

Police went to Ds home with a warrant for his arrest. When D arrived at the home, the officers arrested
D and searched his home, without his consent. The court considers whether a warrantless search of Ds
entire house can be justified as incident to an arrest.
Court holds that the broad expansion of the search incident doctrine cannot withstand scrutiny,
and thus should be constrained to permit only search of the area from which the arrestee might
obtain a weapon or seek to destroy evidence. The court argues that the broad search is not
justified by the original rationale for the 4th amendmentthe original intent of the 4th amendment
was to protect privacy from abuses by the majority. The court recognizes that the main
justification for the search incident doctrine is that an arrestee may obtain a weapon and use it
against the officers; the court reaffirms that this justifies search incident to arrest in the room in
which a an individual is arrested, but does not extend to the entire house. Court argues that there
is no reasonable distinction that would justify searching an arrestees entire house if they are
arrested in the house, as opposed to arrested anywhere else.
Dissent argues that the standard by which 4th amendment searches are measured is not against whether
or not that are conducted pursuant to a warrant, but rather whether they are reasonable. The court
argues that when the police are already legally in a place (house), it is not reasonable to require that the
police leave the place to go get a warrant, especially when co-conspirators may destroy evidence. The
court then applies this set of factors and argues that there was an exigency created by the possibility that
the arrestees wife would hide or destroy evidence. Dissents argument amounts to a balancing of
interests in which the privacy interest is low because police are already legally in the place, and police
interest is high because of potential evidence destruction.

Arguments supporting SIA:

o The psychological reactions to arrest are such that suspect likely to panic and assault
cop or destroy evidence
Disarm suspect
Find evidence suspect might try to destroy
o Inventory argument the police are going to inventory items anyway to protect interests
of the arrested, so should be allowed to search them
Robinson considered question of whether search was reasonable if were arresting for a crime
which you were unlikely to find evidence
o SIA is not limited by the scope of the PC
o In searches of arrestees body per se reasonable to search
Maryland v. Buie when police arresting inside a house, can conduct an SIA to the extent
necessary to ensure safety of police (to ensure no one is hiding in a closet and waiting to attack
Belton in arrests related to automobiles search extends to the entire passenger compartment,
regardless of whether evidence of offense for which arrested is likely to be found in car
o Gives police authority to search vehicle for traffic infractions
As a result, police had an incentive (and were) arresting people for traffic
infractions so that they could search them
Thornton v. United States largely overruled by Gant
o Belton applies even when arrestee has already left vehicle
o Provided an indication that the court was ready to overrule Belton
Scalia if no grounds to believe evidence is in the car, then no justification for
the search (in case, goes along with majority because believed had PC for
search)
Knowles SIA is triggered by full-blown custodial arrest, but just by citation
o Arguments for SIA are not therepsychological impact and inventory arent present
when officers merely issue citations

Arizona v. Gant SIA of a vehicle limited to when 1) area within wingspan of arrestee from which might
obtain a weapon, 2) evidence reasonable to believe vehicle contains evidence of arrest.
38

Police received an anonymous tip that drugs were being sold from a house. They went to the house and
met Gant who told them that the owner of the house was not home. They locked at Gant in their police
database and found that he had a suspended license. Later they went back to the house and arrested
the owner. When Gant drove up they arrested him (saw him driving on suspended license). While he
was in the patrol car the police searched his car and discovered a bag of cocaine. The lower court found
that the search was unreasonable based on the Scalia language in Thortonthere was no reason to
believe that there was evidence related to Gant driving with a suspended license in the vehicle.
The court holds that an SIA of a vehicle is reasonable only if the arrestee is within reaching
distance of the passenger compartment at the time of the search or it is reasonable to believe the
vehicle contains evidence of the offense of arrest. The court argues that an expansive reading of
Belton in which the entire passenger compartment is subject to search is inconsistent with the
ruling in Belton which said that it was consistent with Chimel (wingspan limitation). The court
rejects the argument that vehicle searches are reasonable regardless of whether have reason to
believe will uncover evidence of the arrest. The court argues that the privacy interests are higher,
particularly given that Belton authorizes officers to search closed containers. The court argues
further that police interests are law because the individual is already detained. Court argues
further that a broad reading of Belton is not necessary to protect law enforcement safety or
evidentiary concerns since it applies when an individual has already been arrested.
Concurrence (Scalia) argues that in interpreting 4th amendment, should first look to history, and if
history is inconclusive, then should balance the relative interests. Concurrence argues that in
terms of interests, the police always have a less invasive way of neutralizing concerns because
they can arrest the person (wants to eliminate the charade of police safety as the justification).
Concurrence argues further that he would not permit SIA within reaching area because it leaves
ambiguity, because other remedies (arrest) is available, and because it creates a bizarre incentive
for police not to secure arrestees so can search their vehicles.
Dissent makes a whole bunch of arguments. Dissent argues that Belton has already been relied on by
the police. Dissent argues further that no changed circumstances warrant changing Belton. Also argue
that the Belton rule has not proven unworkable and has not been undermined by later cases. Dissent
argues further that Chimel is meant to be applied as of the time of arrest, not of the time of the search
because otherwise the rule would never apply (because as of the search, exigency rarely, if ever, exists.

Criteria 2 reasonable to believe vehicle contains evidence of arrest involves something less
than probable cause
o Court does not say that it is reasonable suspicion provides some justification for
thinking that is not the right standard either
o Probably not limited to the passenger compartment, as it was in Belton
Gant raises the question of how Gant impacts the authority to search within the home
o Sweep authority Gant does not address the authority to sweep the home to ensure
police safety as discussed in Buie this authority probably is unchanged
o In home
If Gant logic transfers to the home
officers are no longer limited to grab space, but can now look anywhere
in the home if it is reasonable to believe they will find evidence of the
offense of arrest (which will almost always be the case in the home)
Area can search on grab space limited to real grab space (not grab
space charade from before)
Why we would think it would apply
o Scalia pushing for reasonableness as basis for searches, rather
than warrant requirement search history, balance interests
Searching arguably reasonable because officers are
already in the house
Why wouldnt apply
39

o
o

Heightened expectations of privacy in the home

Lack exigencies inherent to cars that constrain getting warrant

Virginia v. Moore SIA for arrests that are not authorized under the laws of the state do not violate the 4 th
amendment.
Officers determined Moore was driving on a suspended license and arrested him for the offense. While
they were arresting him, they searched him and found cocaine. However, under state laws, the officers
should have issued Moore a summons instead of arresting him.
Court finds that evidence should not be excluded as a violation of the 4 th amendment when the
arrest was not justified under state law. The court applies the Scalia methodthe court first
considers the constitutional history, and then proceeds to balance the relative interests. The
court argues that history does not provide a conclusive answer, but suggests that history does
not indicate that the 4th amendment was intended to apply to state law (reinforce state law/be
limited to state law). Accordingly, the court considers standards of reasonableness. The court
argues that reasonableness has never depended on interpretation of state law. The court then
considers the relative interests of the parties. The court argues that the arrestees interests are
low because there are already standards in place to protect an individual from arrest. The court
proceeds to argue that limiting constitutional arrests to those authorized by the state would create
a strange incentive discouraging states to impose greater restrictions on arrest authority because
it would make all information obtained incident to those arrests excludable. The court argues
further that tying constitutionality to state law would create varying constitutional 4 th amendment
standards, depending on the jurisdiction. Once the court determined that the arrest was not
unconstitutional, the SIA was reasonable based on concerns for officer safety.

Arrest (seizure) is reasonable under 4th amendment as long police have PC to believe are guilty
of a crime

SIA Present Requirements

Must arrest suspect
With respect to person
o Can search arrestees body (United States v. Robinson)
With respect to premises where arrestee found; consider:
o Can search area from which might obtain a weapon (wingspanChimel, Gant)
o Can search area to secure from dangerous persons
o Can search vehicle if reasonable to believe will discover evidence of offense of arrest
o Consider
Intensity
Geographic scope
Rationale

Plain View Search of Computers

Issues have arises around searchability of computersissues arise when police have a warrant
to search a computer for one thing, but discover evidence of some other crime
o State argument must be able to look in every file because it is possible that a file will be
hidden/misnamed
o 4th circuit electronic files are like paper files; a warrant for a computer is like a warrant
for a file cabinetyou can look at anything
o 9th circuit electronic files are distinct from paper files because it is possible to limit the
scope of the search for electronic filesas a result must do that

Reasonableness

Context
40

The exceptions above demonstrate the court is in the process of questioning its loyalty to
the warrant requirement
Terry reiterates the preference for warrants, but simultaneously prescribes
another exception to the requirement
Implies that a warrant is necessary even where not
o Terry is tried in the context of a police stopa warrant cannot be the requirement for a
police stop because it would not be possible to obtain a warrant for a police stop
o Terry occurring in the midst of the civil rights movement real concern about policing
using stops as a means of harassment
Vagrancy statutes were permitting police to stop almost anyone with almost any
(or no) justification
Police are frisking people in the community; it is invasivehow should the 4 th
amendment limit the power?
o At the other end of the spectrum, there are substantial community interests in proactive
policing
Terry enabled proactive community policing
Potential means for protecting privacy:
o Absolute protection things free from official inspection
o Warrant + Probable Cause
o Reasonableness privacy protection rooted in requirement that searches and seizures
be reasonable
Does not necessarily mean that the court will apply less stringent restrictions on
searches example even if one had PC to believe someone had been involved
in a crime, a bullet could not be fished out of that person because such a search
would not be reasonable
Concerns
Commentators nevertheless worry that a reasonableness standard will
lower privacy protections because courts will defer to lower courts who
will defer to the police
Concern that a totality of the circumstances test provides too little
guidance to the police on what can do
o Counter standard of reasonableness requires interplay
between officers actions and judicial decisions
Because reasonableness requires a balancing test, courts will be forced
to give a convincing explanation for inevitable choices, but the court
lacks the tools to give such an explanation
Use of reasonableness in assessing 4th amendment events has increased in recent years
o Camara 4th amendment reasonableness requirement applies to health and fire safety
inspection searches
o See 4th amendment reasonableness requirement applies to commercial warehouse
inspection
In expanding the application of the reasonableness standard, the court redefined probable cause
in terms of reasonableness, by doing so the court introduced reasonableness as a basis for
assessing constitutionality of 4th amendment events on its own
o Instead of PC defining reasonableness, balancing test came to define reasonableness
Before Terry, there was real doubt as to how the court would rule; possibilities:
o PC is required for a stop (effectively limits policing to reactive)
o Nothing required for a stop a stop is just a conversation (not a 4 th amendment event)
o

Stop-and-Frisk Authority

Terry establishes a new distinction between what does and does not constitute a 4 th amendment
event
o An arrest and an SIA are 4th amendment events
A stopand-frisk is not a fourth amendment event
41

The court in Terry finds that the distinction is not based on a frisk being
less intrusive it is very intrusive
Rather, justification is that a warrant would not work as the standard in
this context; PC would not work in this context, because by definition the
officer does not have PC, but rather needs to be able to conduct a
search in order to obtain PC
Searches under consideration in Terry were already being conducted by law enforcement thus
the review by the court serves to restrict these searches and bring them under review of the
courts
o Court did this by holding the searches to a reasonableness requirement involves a
balancing of the interests of law enforcement and the privacy interests of individuals
The court is moving in this direction for all seraches

Terry v. Ohio An officer has the authority to stop and frisk an individual when the officer can point to
specific articulable facts that warrant a man of reasonable caution in the belief that a stop was appropriate
and that that the officer was dealing with an armed and dangerous individual or officer would be
warranted in belief that his safety or that of others is in danger, even if the officer did not have probable
cause for an arrest.
An officer with 30 years of experience was patrolling his regular beat. He noticed two men who were
taking turns walking down the street and peering into one particular store window. The officer suspected
that the men were casing the place for an armed robbery. The officer followed the men and confronted
them. He seized the men and frisked them; he discovered that Terry had a gun. The state concedes that
the officer did not have PC for an arrest. Terry moved to exclude the evidence on the basis that it was
discovered during an illegal search.
The court finds that officers have the authority to stop and frisk an individual where specific facts
justify the action and the officer has reason to believe he is dealing with an armed or dangerous
individual. The court first finds that the stop and search is subject to fourth amendment review
the court argues that the procedure is invasive and literally involves a search of an individuals
person. The court finds that in order to justify a stop and search an officer must have specific
and articulable facts which, when combined with the inferences to be drawn from the facts,
warrant the intrusion; this standard requires that at the moment of the search and seizure the
circumstances would warrant a man of reasonable caution in the belief that the action taken was
appropriate. The court argues that this authority is justified by the societal interest in effective
crime prevention and detention. Pursuant to this authority, an officer also has the authority to
frisk an individual for weapons when based on those specific acts the action is reasonable
(reason to believe dealing with a dangerous individual). The court argues that the officers need
this authority to protect their safety, and that the officers have to engage in this activity. Officers
have to engage in this activity because of the safety concerns, because the exclusionary rule is
the only way that the rule could be enforced and the power of the exclusionary rule is limited, and
because the stop and frisk is necessary to prevent crime. The court qualifies the holding such
that the search must be limited to a search for weapons. Under the circumstances in the case, the
court finds the stop and search reasonable and does not exclude the evidence.
Concurrence (Harlan) Fills in deficiencies in the opinion. The authority to frisk is derived from
the authority to stop. In order to have RS to frisk someone, one must first have authority to stop
someone (RS to frisk arises from having the additional RS that the individual may hurt officer).
Dissent argues that ruling effectively gives police more authority than even a magistrate (detached neutral
observer) has because officers are allowed to engage in 4th amendment events without even the PC that
would be necessary in order to obtain a warrant.

After Terry, the stop-and-frisk requirement is that an officer must have Reasonable Suspicion
(some quantum of specific facts that is less than PC)
Terry could have been limited to violent crimes, but thus far it has not been limited
42

4th amendment events after Terry

o Arrest this is the full blown custodial arrest that involves taking an individual from the
place where found and locking up until police decide to let you go
o SIA
o Reasonableness line the line between a stop and a full custodial arrest is not entirely
clear; the line is not forcea stop can be forceful
Stop a temporary seizure to investigate RS; can involve seizing an individual to
take them somewhere else
Frisk
Officer engages in separate 4th amendment activities, but the court treats these as one entity
Fundamental issue is whether police are to be given authority to engage in proactive, rather than
merely reactive policing thought is that police shouldnt have to wait for a crime to be committed
to act, but should be able to prevent crime they reasonably believe may be under way
o Traditional Fourth Amendment approach (PC with review by magistrate) is ill suited to
proactive policing efforts where getting a warrant would be a complete impossibility
Additional authority offered by Terry also is important in investigating victimless drug crimes
where evidence will ordinarily be difficult to uncover
Risks of proactive policing
o Heightened risk of discriminatory enforcement and inappropriate police involvement in
community life
o Stop and frisk is responsible for a lot of the detention between law enforcement and
minority communities
In spite of the concern related to race, Terry is one of the few Fourth Amendment
cases that specifically mentions race, and the court discusses it fleetingly (maybe
suggests treatment in case was insufficient)
o Responsive to selection biaspeople are more likely to give anonymous tips related to
minorities (more likely to feel threatened by minorities)
Proactive policing/prevention has become particularly important for federal law enforcement since
9/11
After Terry, all searches must be reasonable, meaning of reasonable per an academic:
o Intrusions must be proportionate to legitimate government purposes
o Reasonableness must focus not just on privacy, but also on bodily integrity and personal
dignity
Limitations on Terry Stop
o Terry stop does not permit full custodial arrest (Dunaway v. New York)
o Terry is not limited to potentially dangerous activity
o Terry stop does not permit activity that is more intrusive than is necessary for a police
officer to ensure own security
o Terry does extend to seizure of property in some circumstances but it is limited to
detaining luggage briefly to investigate suspicion
Cant seize luggage and wait for sniff dogs to show up
The line between Terry Stops, and more substantial seizures is not immediately clear
o There is no rigid time limitation on Terry stops
United States v. Sharpe found that it was a Terry stop when an officer detained
a suspect for 20 minutes while waiting for backup and then discovered evidence
o Court has generally been more willing to adopt bright-line rules for Terry stops when
justified by officer safety
A Terry stop can involve an officer demanding a driver get out of a car (because
diminishes danger that driver will make unobserved movements and shoot
officer)
A Terry stop can involve ordering a passenger out of a car (same justification as
above)

43

Officers can search a vehicle for weapons as part of a Terry Stop (when see
weapons from outside) maybe cannot conduct a full search
The justification for this broadening scope is that where safety is concerned, it is
not realistic to think that an officer will not make this intrusion (will not search the
individual or the vehicle or order someone out of a car) because it is necessary
for their safety andthus the courts should not make the officers conduct illegal
because it will have no positive effect other than to get officers to break the law
more often
o Court has been very unwilling to allow elaborations on stop-and-frisk in the absence of
officer safety
If an officer feels something during a frisk that he believes is contraband, the
officer cannot seize that thing
Perhaps in response, officers have merely learned to say that they
thought they felt a weapon
Reasonable suspicion has come to define the legal standard applied to Terry stops RS is a
consider-all-the-circumstance inquiry
o RS is less demanding standard than PC in that RS can be established with information
that is different in quality, but also with information that is less reliable that necessary to
show PC
o RS is a quantum of factual evidence criteria (not just a hunch)

Alabama v. White An anonymous tip that someone is committing a crime can amount to RS if it provides
evidence on future activity that police can verify to supplement veracity and basis of knowledge
Police receive an anonymous tip that an individual would leave a particular building, at a specific time, get
into a specific car, and drive to a specific place.
The anonymous top was sufficient because it provided predictive information that police could
verify to justify the assumption that the individual was in cahoots with the suspected criminal
Fourth amendment analysis; once woman starts driving towards destination police can:
o Stop the woman based on RS that she is committing an offense (has drugs)
o Police can order woman out of the car
o Can order any passengers out of the car
o Police can frisk the woman and passenger if they have reasonable suspicion to believe
that they are dangerous
May have RS of danger based solely on the nature of the crimeRS suspicion of
distributing drugs warrants RS of danger because there is a high correlating
between drug trafficking and carrying guns (unclear what amount of rugs
warrants RS of danger)
The frisk would be limited to a search for weapons that can be used to hurt the
officersonly weapons that are accessible (cant search underwear)
Can pat down clothing
o Can require someone to pull out anything that feel that gives PC
to believe the individual has drugs or a weapon
o Officer cannot tactically manipulate the object (particularly for
drugs), but can resolve suspicion on weapons
Can pat down grab space in vehicle
Can pat down personal effects (purse)have the authority to search in
order to resolve suspicionif cant resolve suspicion by touching, can
pour out contents of bag
Pre-Gant in this context, the police would have just waited for woman to violate a traffic law and
then would have arrested her for the violation and obtained a full scale SIA
Florida v. JL An anonymous tip that someone is carrying a gun does not amount to RS.

44

The police received an anonymous tip that a young black man standing a particular bus stop was carrying
a gun. The tip described the shirt that the young man would be wearing. The police arrived, frisked the
kid, and found a gun.
The court finds that the officers did not have RS. The court distinguishes this case from the
situation in White where the tip described more details and contained predictive elements. In this
case, the tip provided no predictive information, and therefore presented the police with no means
by which to test the informants knowledge or credibility. Therefore, it is not possible to
corroborate the information in order to supplement veracity and basis of knowledge of the tip
because the information does not warrant the inference that the tipster was in cahoots with the
individual targeted. The court refuses to adopt a firearm exception to the RS standard (which
would permit to search on an anonymous tip when the tip involved a firearm), but the court
specifies that it is not ruling on whether one would have RS on a bomb tip.

Court reaffirms that RS does not refer to a fixed quantum of evidence, but rather is contextdependent assessment of reasonableness based on a quantum of facts
o Some argue that one problem with this approach is that courts cannot give persuasive
arguments of how they have balanced the various interests in the outcome
The courts justification for opinion is concern for harassmentthat people will use this in order to
get back at other people
o This concern may be unjustifiedthe average person isnt going to break the law by filing
a false report
o The only people who we really worry about doing this are people who are already
criminalsthese people probably have the best access to tips based on real evidence!
The RS standard is amorphous, and in some instances may be based on largely innocuous
details
o Police likely to be better at identifying suspect activity than they are at articulating what
about the activity makes them think that it is criminal
o Real concern likely that police will invent anonymous tips in order to justify a stop-andsearch based on a hunch

Illinois v. Wardlow Unprovoked flights warrants RS; determination of RS is based on commonsense

judgments and inferences about human behavior
Officers were driving as the last car in a caravan in a neighborhood that they entered in order to conduct
some sort of drug interdiction. When the officers passed Wardlow, he was holding an opaque bag and he
sprinted off in the opposite direction. The police pursued him, made a Terry stop, searched his bag, and
discovered a handgun. Wardlow moved to suppress on the grounds that police did not have RS for the
stop.
The court finds that the officers had reasonable suspicion on the basis of the factors present by
the facts. The court invokes the standard for determining RS and reaffirms that RS requires
articulable facts and must be based on more than a hunch of criminal activity. The court argues
that presence in an area of expected drug activity alone is not enough to justify RS, but it is a
factor that can be considered. The court argues further that nervous behavior (e.g. flight) is
another factor that can be considered. The court also argues that Terry recognized the risk that
officers may stop innocent individuals.
The dissent argues that the question involved in the case is the degree of suspicion that attaches to a
persons flight, and whether that degree of suspicion warrants an inference of reasonable suspicion. The
dissent argues that it does not because there are numerous legal justifications that would explain an
individuals sudden impulse to run. First, an individuals decision to start running may have nothing to do
with the policea person may decide to take a jog or suddenly need to use the bathroom. Moreover,
even a decision to run from the police does not warrant reasonable suspicion given that in many
neighborhoods police have a reputation for being dangerous and frightening to minorities, and many
people may assume from police presence that crime is afoot.
45

Wardlow establishes that unprovoked flight warrants RShowever the court does not clarify what
counts as unprovoked flight
o After Wardlow, police who want to investigate may just drive up on a person with sirens
blaring and use stop-and-frisk if that person runs
Though at this point, this may be provoked flight (court has not yet ruled on
issue)
Flight does not provoke RS of any particular crime, just RS of crime
o In most crimes where assess RS or PC, require that it be of a particular crime
Court accept as evidence the fact that the arrest occurred in a high-crime arearaises the
question of how high-crime areas should be defined or identified
o Usually rely on officers testimony about the neighborhoods reputation
Some argue that such conclusory statements should not carry much weight
Those who live in high crime areas are most likely to be poor and members of minority groups
these are the same people who are most likely to be skeptical of police intrusion (most likely to
run from police)
o Thus maybe doesnt make sense to allow unprovoked flight as evidence of RS (additional
indication that unprovoked flight in context of a bad neighborhood does not necessarily
warrant supposition of criminal activity)

Police Discretion and Profiling

Q: What role does the 4th amendment reasonableness requirement have in preventing racial
discrimination (purposeful or subconscious) in enforcing the law?
A: The 4th amendment has almost no role in preventing racial discrimination in law enforcement; police
have almost complete discretion in how and to whom they apply the law (discretion in enforcement).
Nevertheless, the Constitution does require that laws not be so vague that police have full blow discretion
to determine if the law has been broken (if they have the PC necessary to engage in enforcement
activities).

Among central questions presented in the 4th amendment context is how strictly police discretion
should be regulated
One way police use discretionary power is the use of profilesassumption that certain
characteristics do or do not correlate with certain types of criminal activity
o US v. Sokolow DEA agents using a profile of a drug courier stopped someone at the
airport; the Supreme Court upheld the legality of the search
Supreme Court did not explicitly endorse use of profiles, but did not condemn
use either; dissent was very against profiling
Structural issues contribute to racial profiling communities are still segregated
What is racial profiling?
o Policy rely on racial disparities to target crime
Communities are still segregated police use this information to target crime; if
police want to arrest drug buyers, they will target white kids in black
neighborhoods)
The other consideration implicated by profiling is the growing link between race
and poverty (Blacks and Hispanics, in particular)
o Racial profiling is not the use of race to identify a suspect (know crime was committed by
young white male)
o Profiling is the association of race with criminality in order to identify suspects or
conduct investigation
Reasons police use profiling politically cheap
o Those in poorer neighborhoods vote less
o Easier to get convictions in poor neighborhoods (dont have same $ to contest
prosecutions)
46

It is cheaper to police when people are on the streets wealthier can pay for more land
and bigger houses which equates to broader expectations of privacypolice cannot
enter without a warrant
Academic debate on whether racial profiling is bad
o When a minority is targeted for questioning based in part on ancestry, he is taxed more
heavily than others, but the question is whether that tax is illegitimate
o The incarceration rate for blacks is many times higher than it is for whites, and it does not
correlate to differences in crime rates among the racial groups
Drug use is fairly consistent across races
o Defense
People of other races are not in a position to pay the tax effectively
Race is not being used invidiously, it is being used as a marker, but merely as a
signaling tool to pursue an unobjectionable end (like whiteness is used in
affirmative action context)
Interesting argument because of claims by many whites that in
affirmative action context they are innocent victims of discrimination
o Alternative to race-sensitive policing spend more on law enforcement to make up for
any diminution in crime control by prohibiting use of race as a proxy for increased
criminalityredistribute the tax onto all
Law should only permit use of race in investigation when have an urgently
compelling needan emergency situation where a crime has been or is about to
be committed
Racial profiling post 9/11
o Before 9/11 the country had just reached a consensus view that racial profiling was bad,
but now that it arises in the terrorism context, many people are in favor of it
o While most still claim they are against it, we have shifted what we mean by profiling allow
for profiling in certain contexts or senses raises question of what is racial profiling?
Not racial profiling for an officer to question, stop, search, arrest, or otherwise
investigate a person because of his race or ethnicity based on information about
a perpetrator of a specific crime (knowing is a young white male)
However, concept of a specific crime is hazy when dealing with ongoing
conspiracies (like terrorism plots)
Police can do a lot on the basis of racial or ethnic information at the very least,
police and chose to pay more attention to individuals based on racethis may
result in more stops, but does not constitute profiling
Definition of profiling may depend on how the suspect is treated
Does officer impinge on suspect by confronting him or invading his
privacy?
o If the officer does impinge on suspect, may imply a greater
intrusion on privacy interests and maybe we are less inclined to
permit such an intrusion (maybe the intrusion is impermissible
profiling)
Is the subject treated like an outsider when encountered?
o If the subject is treated like one of them than the investigation
essentially criminalizes himthis can be very insulting, and is
hard to recover from; this is certainly profiling and we may be
hesitant to impose a tax this great
Overall, investigative choices made on assumptions of criminal activity
are stigmatizing, so should be treated cautiously it may be misleading
go law enforcement and is certainly humiliating to the targeted group
Federal Guidelines on use of Race in Law Enforcement
o Traditional Law Enforcement activities
o

47

In making routine or spontaneous law enforcement decisions federal law

enforcement officers cannot use race or ethnicity to any degree except in specific
suspect description
In conducting activities in connection with a specific investigation can use race
and ethnicity to extent there is trustworthy information that links a person of a
particular ethnicity to a criminal incident
National Security and Border Integrity
In investigation threats to national securitycannot consider race or ethnicity
except to the extent permitted by the Constitution and US laws

Whren v. United States The 4th amendment reasonableness requirement does not require police to
have anything more than PC in order to conduct 4th amendment search and seizure activities, even if
that PC is used as a pretext to target racial minorities for statutory violations that all people commit.
Police were driving in an unmarked police car and passed a dark truck with young, black, occupants.
The truck remained stopped at the stop sign for an unusually long time, and the police did a u-turn to
investigate further. Once the police U-turned, the truck turned right quickly without signaling and
speed off at an unreasonable speed. The police then pursued the vehicle and pulled up beside it. An
officer stepped out of the vehicle, approached the truck, and observed bags of drugs in the hands of
one of the passengers. Defense moves to suppress the evidence on the basis that the traffic stop
was a pretextual basis for investigating the men, mostly because they were black, and argues that a
stop should require PC, plus that a police officer acting reasonably would have made the stop for the
reason given.
The standard suggested by the defendants would likely requiring a showing that department policies
on when an officer can act permitted the stop that occurred.
The court finds that nothing beyond PC is necessary to conduct a stop. The court
acknowledges that in previous cases it has used the exclusionary rule to prevent the use of
pretextual bases for a stop, but only in the absence of probable cause. The court argues that
the standard suggested by the defense is based on subjective considerations and would vary
from place to place, and would be cause for undesirably unruly and expansive litigation. The
court argues further that the fourth amendment does not provide a constitutional basis for
objectioning to discriminatory use of race, but rather such a challenge should be made under
equal protection law.

Litigation steps
o The pull-over/stop was good because police had PC to believe that suspects had
driven at an unreasonable speed
o Drug seizure is OK based on the plain view doctrine
Case raises the issue of what the proper relationship is between the Fourth Amendment and
the substantive criminal law
Fourth amendment incorporates state law (in some sense) by requiring PC; PC requires that
o Based on information available at the time, there was a fair probability
o That the suspect had engaged in a defined criminal behavior
Those criminal behavior are defined in/by state law
o Because fourth amendment law is based on a state-set standard and includes
minimal requirements, if everybody is breaking the law, the fourth amendment does
no real work
Some would suggest that if the point of the 4 th amendment is to ensure that
police have a good reason to conduct a search or seizure, then the
Amendment should place limits on a states ability to define innocuous
conduct a crime
Opinion criticizes defendants argument on the ground that it would lead to fourth amendment
standards that vary by location; however this is what the standard in place does

48

Though the standards vary based on how they are established by the legislature,
rather than by the police
Whren affirms that there is no pretext s&s doctrine in the fourth amendmentthe legality of a
search does not depend on why it was conducted
o Though there is some concern that this permits arbitrary enforcement, the court
responds that this is an equal protection issue
o In order to make out an equal protection claim, a defendant would have to show that
the police intentionally discriminated against him based on a protected characteristic
(race); individual is unlikely ever to have the evidence necessary to prove this;
options
Empirical evidence that the officer could have pulled over a whole bunch of
whites, but instead waited for a Black person
Statistics are complicated because police have been shown to falsify
race on records to prevent inquiry into conduct
Confession by officer
Evidence of the practices of other officer in the jurisdiction
o The other issue with equal protection doctrine is what is the remedy under equal
protection? Is it still exclusion?
As referred to earlier, it is generally understood that when police rely on race as part of a
victim or suspect description, it does not implicate profiling issues
o Even so, there are limits to the extent to which the police can act based on racenot
reasonable for police to interview all of a minority group in an area based on a
witness description;
It is unclear to me if this raises 4th amendment issues
Police discrimination in traffic stops has received a lot of attention, partially because research
has been conducted that empirically demonstrates prejudice in traffic stops
o Even though no higher portion of Blacks than Whites speed, and there are many
more Whites on the road, Blacks are pulled over in much higher numbers
Some academic suggestion that those concerned with racial profiling should not focus on
remedying the effects of profiling, but rather should focus on remedying race-related
consequences of the drug war (high rate of incarceration of minorities)
o

Police Discretion and Substantive Criminal Law

Explanation for exploration in this section

o Equality and liberty are fundamental values of our governmental system
o When we look at arrest and incarceration statistics, they show that minorities are being
disproportionately arrested and incarcerated despite to clear correlation between their
arrest rates and differences in crime rates among different races
o These issues can be addressed through the substantive law and through procedural law
Morales suggests a fix through substantive law
Procedural Fix Gant offers one potential procedural means for addressing
issue; there was concern that police were targeting minorities as a pretext for a
car search, but without that authority, police may arrest fewer minorities
o Overall, 4th amendment offers no real means for addressing the issue
One alternative to regulating police by panning pretexts is to limit the laws that give police their
discretionary authority
o This involves limiting the offenses that provide a large portion of the discretionary power
loitering laws, curfews, anti-noise ordinances, anti-cruising ordinances, anti-gang laws,
etc.
Public order offenses made a comeback in the 80s and 90s
o One academic theory is that the public signals indicated by these public order offenses is
that law-abiding people should stay off of the streets
o Thus, these public order offenses protect the streets for law-abiding people
49

Some courts have passed identification statutes that require individuals to identify themselves
when told to by the police

Chicago v. Morales Laws are void for vagueness if they are so vague that they fail to give notice of the
prohibited activity or encourage arbitrary enforcement of the law.
Chicago enacted legislation that prohibited criminal street gang members from loitering with one another
or anyone else in a public place. In order to be arrested for violating this ordinance, an individual had to
be loitering with a street gang member, be ordered to disperse by the police, and then disobey the
officers order. A case is brought arguing that the law is void out of concerns that is too vague, and thus
encourages arbitrary enforcement.
The court finds that the law is unconstitutionally vague. The court recognizes that vagueness
may invalidate a statute for two reasons: 1) the statute may fail to provide notice that will enable
ordinary people to understand the conduct that it prohibits, and 2) the law may authorize or even
encourage arbitrary and discriminatory enforcement. In this case the court finds that the law is
deficient for both reasons. The court finds first that the law raises notice issuesbecause the
officer issues an order only after the prohibited conduct has occurred, the law does not provide
the advanced notice necessary to a loiterer to determine if he is loitering; moreover, the dispersal
requirement does not give notice of what an individual is required to do to disperse (where does
individual have to go and for how long). The court also finds that the law leads to arbitrary
enforcement issuesthe court argues that avoiding void for vagueness requires that the
legislature establishes minimum guidelines to govern law enforcement, and no such guidelines
have been adopted here.
OConnor Raises notice and arbitrary enforcement issues attached to the definition of
loitering. Suggests that the issue with the statute could be resolved if the law specified that it
prohibited remaining in one place with no apparent purpose other than the intent to establish
control over identifiable areas, intimidating others from entering, or to conceal illegal activities.
In other words, statute OK if restricted to prohibited gang activity.
The part about standing with gang members does not raise notice or enforcement concerns
because gang members wear uniform equivalents because they want people to know that they
are part of a gang because part of their purpose is to intimidate
Dissent argues that the law was adopted to address the citys problem with street gangs. The dissent
argues that the law was adopted at the behest of the community, and thus reflects the communitys
decision to give this authority to the police in order to ensure that the neighborhoods are safer. By
encouraging the adoption of the law, the community has effectively legitimized the reasonableness of the
law because the community has willingly forfeited the liberty (willing to pay a tax) in question in order to
achieve a societal end. Dissent argues further that the law is not actually vague.
The point of Scalias dissent is that the community wants this statute because it gives everyone a
chanceall those approached have the chance to disburse and stay out of jail
At the same time that the community wants community members to stay out of jail, the
community also wants the streets cleared upthey dont want gang members on the corners
intimidating them from going out
When the law is revised, it provides less flexibility for the cops, but may provide less flexibility for
the community toomay be less of an opportunity for individuals to escape punishment merely
for disbursing
o It should be easy (maybe no more difficult) for officers to find loitering with intent, so
police will almost always have the PC necessary for an arrest

A void for vagueness challenge is a facial challenge; in order to succeed on a facial challenge, a
party must establish that a rule is unconstitutionally vague in applications.
Void for vagueness doctrine was designed to address the potential for arbitrary and discriminatory
enforcement by police, and thus constitutes one strategy for dealing with problems like racial
profiling

50

Scope of void for vagueness doctrine is narrow; does not relate to Whren-like stops
where police can employ clearly violated laws to decide who they stop
Some argue that the vagueness cases were decided against a background of institutionalized
racism; these people argue that the sense of distrust of community-based policing and skepticism
about police behavior do not map well to the contemporary scene in which members of the
community have sometimes been in the forefront of the push for some of these vague laws
o Counter argument is that these laws are still predominately passed by white elected
bodies and impose disproportional burdens on minorities
o

Special Needs

Court has used an interest-balancing approach (similar to Terry) to uphold administrative

searches, regulatory searches, and other government actions involving special needs
o Whether search is allowed depends on a balance between the public interest and the
individuals right to personal security free from arbitrary interference by law officers.
New Jersey v. TLO first case to refer to special needs
o Found that warrant and PC requirements were not well suited to a principals searching a
students purse for drugs, but rather the legality of the search should depend on
reasonableness
Griffin v. Wisconsin Used special needs to justify probation officers searching probationers
homes on reasonable grounds (less than PC) without a warrant
OConnor v. Ortega Used special needs to argue that an employers search of employees desk
should by reasonable under all circumstances

Roadblocks

Raise question of whether police can seize a group of drivers without any reason to believe that
any one driver or passenger is violating the law
Delaware v. Prouse court declined to permit suspicion-less stops of automobiles to check
license and registration; no special needs; balancing of interests is against that much police
discretion
o Police randomly pulled a guy over and asked him for his license; during the stop the
police saw Marijuana in plain view. The marijuana was excluded from evidence
o The court applied the reasonableness test and found that there were significant individual
interests in being free from random police intrusions, but minimal significant police
interests because police were unlikely to find anything
o In opinion, court suggested that the use of check points to randomly search might be
appropriate
United States v. Martinez-Fuerte court approved suspicion less checkpoints from the Mexican
boarder based on a balancing of interests (need to make stops is great, intrusion is limited)
o These stops are 4th amendment events, but there is a substantial law enforcement
interest
Michigan Dept of State Police v. Sitz OK to have random drunk-driving checkpoints under
balancing of interests
o Court balances interest Police interests
This was characterized as a non-criminal-investigation checkpoint
State argued a special police interest in the need to deter drunk driving (CGI)
The court also consider the nexus between the means used to pursue the ends
(deterring drunk driving)
o Individual Interests
Checkpoint presents less intrusion than an ordinary stop
Everyone is pulled over, so it is less humiliating
The stop is very brief

PROCESS
51

If there is a roadblock
o Roadblocks are appropriate if the police have a special need. In order to determine if
police have a special need, the courts balance interests of each party.
Police interests in ordinary investigation provides a de minimis interest
o In order for a roadblock program to be constitutional, the police must have an
administrative program in place that regulates police discretion

Indianapolis v. Edmond Ordinary crime prevention does not warrant roadblocks under the 4 th
amendment because a balancing of interests does not favor police interest.
Indianapolis began to operate vehicle check points in an effort to interdict unlawful drugs. The hit rate
was approximately 9 percent. As part of the interdiction a narcotics dog walks around the outside of each
stopped vehicle. Checkpoints are set up so as to ensure that each check takes no more than five
minutes, and warning signs are posted alerting drivers of checkpoints. Ps sued for declaratory relief.
Ordinary crime prevention does not justify warrantless seizures. The court weighs the interests at
stake in determining if the checkpoint is reasonable. The court argues that while it has approved
checkpoints previously, it has never done so in the context of ordinary crime prevention, but
rather has approved checkpoints only in the context of special needs. The court finds that
because the primary purpose of the Indianapolis checkpoint is ordinary crime prevention, the
program contravenes the 4th amendment. The court expresses concern that permitting
checkpoints for ordinary police purposes would give the police too much discretion to construct
roadblocks for almost any conceivable purpose. The court finds next that the gravity of the crime
alone is not dispositive on special needs, but rather is one factor that can be considered in the
balancing of interests in a special needs situation. The court also rejects justification for the
program on the grounds that it serves a secondary purpose of keeping impaired motorists off of
the road (like Sitz) because permitting such a purpose would effectively permit all check points.
The dissent seems to apply the balancing of interests, and finds that it weighs distinctly in favor of
permitting the searches. The dissent argues that the random drug interdictions yield positive results
(finding drugs) in a much higher percentage of cases than either the Martinez-Fuerte or Sitz roadblocks,
and thus the government has a clear substantial interest.
Thomas Martinez-Fuerte was wrongly decided; a program of indiscriminate stops is never reasonable.

States interest in stopping motorists a function of two considerations:

o Importance of the violation police are detecting or deterring
o Number of violations detected or deterred
o These criteria cannot fully explain the extent of 4 th amendment protection because it
would seem like they would justify giving police the authority to set up a road block in
Edmond (drug interest as important as some of prior acceptable interests, and success
rate was good)
Individual interest at stake in roadblocks
o State argument stopping a lot of people is less of an intrusion than stopping a few;
stopping everybody may reduce the stigma and humiliation associated with a stop
Rehnquist completely rejects this argument
One advantage of a roadblock program is that it affects all motorists, regardless of race, ethnicity,
or socioeconomic class; this means that road blocks that become overly intrusive are likely to be
regulated by the political process
o Argument for permitting roadblocks
Police impose costs on suspects ( a tax)
Costs are felt primarily by those who police target (minorities), but spreads
benefit to all
This creates a taking problem that police will impose too high a tax
When police stop large groups of people, the tax is spread more evenly, and thus
reduces the odds that police will over-burden any population
52

If it is, it can be regulated through the political process

Thus, when police want to deal with crime wholesale, they should be allowed to

Illinois v. Lidster Roadblocks can be used to investigate specific criminal events pursuant to the 4 th
amendment (at least as long as there is a strong connection between the way the roadblock is conducted
and the crime)
A 70-year-old bicyclist was struck and killed by a hit and run driver. In response, police set up a
checkpoint the next week on the same road to ask motorists if they had any information on the hit-andrun, and to hand each one of them a flyer about the incident. D drove through the checkpoint erratically,
and the officer smelled alcohol on his breath. D challenged the lawfulness of his arrest and moved to
exclude the evidence on the grounds that it was the fruit of an unconstitutional search.
The court finds that the investigation of a specific crime warrants the use of a roadblock to
investigate the crime. The court distinguishes the roadblock from that in Edmonds. The court
argues that the police purpose was not to determine whether vehicle occupants were committing
a crime, and thus was not for a general interest in crime control. The court proceeds to balance
the relative interests of the parties. The court finds the motorists interests to be relatively minimal
one does not have a heightened expectation of privacy in a vehicle, information-seeking stops
are less likely to provoke anxiety, individuals are normally expected to cooperate in public
investigation of a crime, etc. Moreover, the court argues, checkpoints are unlikely to proliferate
absent stricter enforcement because of the intense resource requirements necessary for a
checkpoint. On the police side, the court finds the police interests to be quite substantial. The
police were investigating a crime that resulted in a death, the police were examining on the road
where the crime occurred (and so had an increased interest in investigating in the way that it did.
Dissent contests the application to the balancing of interests as applied in this case. The dissent argues
that many people are likely to find an unpublicized roadblock alarming, and a random roadblock seems
unlikely to yield important/useful police information.

Legal status of most roadblocks after Edmond and Lidster is uncertain, but Martinez-Fuerte style
roadblocks are on stable ground (definitively constitutional)
o Edmonds/Sitz raises the possibility that one can conduct a roadblock for the purpose of
doing a drug interdiction, but claim the purpose is something else, and thereby justify the
roadblock
This may eliminate the use of the drug-sniffing dogs
Though maybe not if drug dogs are allowed everyone their handlers are
allowed
Courts have traditionally considered searches and seizures at international borders to be
reasonable and have required neither RS, and have established few constraints on officers
o E.g. routine luggage inspections when travel through customs
United States v. Montoya de Hernandez Customs officials had RS to believe defendant was
smuggling contraband in her alimentary canal; police detained her for 16 hours to procure a
warrant for a medical examination
o Court found that the seizure was constitutional arguing that 4th amendment balance of
interests leans heavily in favor of the government at an international border
o Courts reaffirmed this interest in United States v. Flores-Montano when the court upheld
a search of a vehicle in which officers removed and disassembled the gas tank of a
smugglers vehicle
Court argued that a search of the gas tank was far less intrusive than a search of
the glove box (which is sanctioned in border context)

Reasonableness and the Use of Force

Unlike most S&S cases, use of force cases are litigated in damage suits, not in suppression
motion in criminal cases
53

On police methods
o If an officer has grounds to use deadly force to affect a stop, the officer can shoot to kill
immediately (and is encouraged to in order to neutralize the threat)
o Law enforcement argues that they shoot in order to eliminate the threat
Accordingly, the officers aim to cause a sudden massive drop in blood pressure
to achieve this aim
As a result, officers aim for center mass
Shooting in the head or an extremity is more likely to make suspect angry without
debilitating
o The rules are structured to favor law enforcement
o Officers do not owe a duty to be careful because the suspect is creating the danger (logic
applied in Scott v. Harris)

STANDARD
Case

Tennessee v. Garner

Scott v. Harris

Criteria
Standard after Garner; to use deadly force officers must have PC+
o Officer has PC to arrest person
o Deadly force is necessary to prevent an escape
o PC to believe suspect poses a significant threat of death or GBI
to the officer or others
Standard for using deadly force to effect a seizure
o Whether officers actions were objectively reasonable under the
circumstances (considering all the circumstances)
In order to determine if the officers actions were
objectively reasonable, the court must balance the
nature and the quality of the intrusion on the individuals
4th amendment interests against the nature and the
quality of the intrusion on the individuals 4th amendment
interests against the importance of the governmental
interests

Tennessee v. Garner Deadly force cannot be used unless it is necessary to prevent an escape and the
officer has PC to believe that the suspect poses a significant threat of death or physical injury to the
officer or others (criteria that construe reasonableness).
Police officers responded to a call about a burglary. One officer went behind the house and saw
someone slam the door and run outside. The officer told him to stop, but the suspect tried to climb over
the fence. The officer was convinced that if he made it over the fence he would escape so the officer
shot him in the head and killed him.
The court finds that the use of deadly force to prevent the escape of a felony suspect is
constitutionally unreasonable, unless the officer has PC to believe that the suspect poses a threat
of serious physical harm to the officer or to someone else. The court finds first that a seizure by
deadly force is subject to the reasonableness requirement of the 4th amendment and requires not
just that the seizure be reasonable, but that the means by which the seizure is achieved also be
reasonable. Accordingly, the court finds that it is not always reasonable to attain a seizure by
killing a suspect. The court considers the interests, and they obviously favor someone not ending
up dead. In its finding, the court overturns the CL rule that deadly force was a justifiable means of
preventing a fleeing felon from escaping; the court argues that this deviation is justified given the
rule was formed before the advent of guns and when all felonies were punishable by death! The
court argues further that the police interests in the use of deadly force are increasingly
questionable because most police/investigative departments have seriously limited the authority
of agents to use deadly force (so it must not be integral to enforcement activities).

54

Standard after Garner; to use deadly force officers must have PC+
o Officer has PC to arrest person
o Deadly force is necessary to prevent an escape
o PC to believe suspect poses a significant threat of death or GBI to the officer or others
Typically, the reasonableness and interest balancing approach means less 4th amendment
protection, but Garner reverses that and uses the reasonable requirement to impose
requirements on the use of force that are more stringent than the PC requirement
The reason that most cases involving reasonableness tilt in the governments favor is because of
the type of cases that arise under the reasonableness question cases where PC standard
seems too low are rare, and most cases brought tend to arise in areas where exclusionary rule is
sought, so something was found, so the ordinary standard seems too high
Restrictions on police use of force seem generally to have been successfulpolice shootings
have gone down, but this has not been linked to an adverse impact on crime levels
o Some suggest that in order for a program limiting shootings to be effective, it must be
accompanied by an administrative program to examine all shootings (some method of inhouse deterrence)

Graham v. Connor All claims that law enforcement has used excessive force (deadly or not) in the
course of an arrest, an investigatory stop, or other seizure, should be analyzed under the 4 th amendment
reasonableness standard.
Police officer saw a man run into a convenience store, and run out quickly. The man was a diabetic and
was suffering from a sugar deficiency. The police then pulled the man over and tried to explain the issue.
The man then passed out on the curb. The police handcuffed the man and laid him down on the hood of
the police car. He tried to explain the problem to the police, but the police assumed he was lying. His
head was banged into the hood of the car. During the incident he suffered a broken foot, cuts on his
wrist, and bruises on his forehead and shoulder. The lower court ruled for a directed verdict for the
defendant, applying a set of criteria based on the due process clause.
The court overturned the directed verdict and held that all claims for an excessive use of force
should be analyzed under a 4th amendment reasonableness criteria. The court finds that
determining whether a particular seizure is reasonable requires a balancing of the intereststhe
intrusion on the individuals Fourth Amendment interests against the countervailing government
interests at stake; the court finds that this is an objective standard whether the officers actions
were objectively reasonable in light of the facts and circumstances. The court finds further that
the reasonableness of a particular use of force must be judged from the officers perspective on
the scene, not from hindsight. Accordingly, the court remands the case to be considered under
the 4th amendment.

Graham squarely rejects using officers subjective intent as part of the 4 th amendment analysis
Court offers considerations that should be considered in the balancing of the interests:
o The severity of the crime at issue
o Whether the suspect poses an immediate threat to safety
o Whether suspect is actively resisting arrest or attempting to evade arrest by flight
Some have criticized that the standard requires police to make complex, instantaneous decisions
o Expert has countered that this approach encourages police to employ advance diagnosis,
planning, and training
Idaho v. Horiuchi Court found that officers shots at a fleeing felon were objectively reasonable
even though suspect did not pose an immediate danger to anyone

Scott v. Harris In determining if a 4th amendment use of deadly force was reasonable, courts perform a
balancing of the interests in which the courts balance the quality of the intrusion against the importance of
the governmental interests that justify the intrusion (this inquiry is very fact-based).
The police attempted to pull over a guy for speeding. The man resist arrest and instigated a high speed
chase that occurred on narrow roads at over 85 miles/hour. In an effort to end the chase, an officer
55

applied his push bumper to the rear of the suspects vehicle, and the suspect crashed and was rendered a
quadriplegic. The lower courts denied the officers plea of qualified immunity, and the case is appealed to
determine whether qualified immunity is justified (as it would be if the officers actions complied with the
4th amendment standards for effecting a seizure).
The court finds that the officers actions were objectively reasonable, and thus were constitutional.
The court considers first whether the acts alleged show the officers conduct violated a
constitutional right. The court argues that ordinarily such a circumstance would require
interpreting the facts in the light most favorable to the non-appealing party, but this case provides
video evidence of the chase, and thus the court assumes the facts to be those interpreted from
the video which show the plaintiff driving dangerously. In light of the facts as the court interprets
them from the video, the court finds that the officers actions did not violate the 4 th amendment.
The court argues that the proper test for determining whether the officers actions complied with
the 4th amendment is whether the officers actions were objectively reasonable. In this argument
the court argues that the standards articulated in Garner were not concrete standards for
determining where the use of force was appropriate, were merely an application of the 4 th
amendment reasonableness test. The court finds further than in order to determine whether a
seizure was objectively reasonable, the court must balance the nature and the quality of the
intrusion on the individuals 4th amendment interests against the importance of the governmental
interest. In this context, the court considers the threat posed by the fleeing suspects actions, and
also considers that the suspect chose to create the danger, and thus has less of an interest in
being free form the intrusion. Thus the court finds the seizure reasonable.
The court seems to dismiss the strong interest on the suspects sidehis interest is his interest in
his life, but the court refuses to recognize it (probably because it is more focused on the threat he
posed to other peoples lives)
The dissent suggests that the officers actions were not reasonable because if the police had abandoned
the chase, the danger would have been averted, and the police probably could have caught the suspect
later because they had his license plate number. Dissent also questions the facts asserted by the
majority and argues that bystanders were not threatened, and questions what it interprets to be the
establishment of a per se rule that terminating a high speed chase with deadly force is objectively
reasonable.

Standard for using deadly force to effect a seizure

o Whether officers actions were objectively reasonable under the circumstances
(considering all the circumstances fact-bound inquiry))
In order to determine if the officers actions were objectively reasonable, the court
must balance the nature and the quality of the intrusion on the individuals 4 th
amendment interests against the nature and the quality of the intrusion on the
individuals 4th amendment interests against the importance of the governmental
interests
Lessons from Scott
o Always litigate the contents of a filmfilms do not actually speak for themselves
o There is some possibility that Garner is still good law and there is a distinction between
force applied to a person and force applied to a vehicle/something that will stop a person
Unlike most S&S cases, use of force cases are litigated in damage suits, not in suppression
motion in criminal cases
o Section 18=983 doctrine gives police qualified immunity from damages liability, unless the
officer violated a clearly established constitutional rule
Means legal close calls go to the police, not the plaintiffs
o The court cannot rule on the qualified immunity issue before the constitutional issue (per
Saucier v. Katz) and thus must rule on the constitutional issue before it determines that a
constitutional standard was not clear enough to prevent qualified immunity
In order to for qualified immunity to be prevented by a violation of a clear constitutional standard
under the 4th amendment, an individual must first be seized
56

Thus, qualified immunity not appropriate when police run over someone who falls off
motorcycle during a chase because officers did not acquire physical control through
means intentionally applied
Conversely, in Scott police did attain seizure through means intentionally applied, and thus had
seized Scott
o Seems to imply that seizure turns on intent of the officer in performing action
o This seems to apply a subjective standard where most 4th amendment jurisprudence
applies an objective standard
o

Reasonableness and the Use of Consent

Consent searches provide one of the biggest bases for searches

Schneckloth v. Bustamonte The determination of whether a consent to search was voluntary is a

question of fact to be determined from the totality of the evidence. The state bares the burden of
proviving that consent was voluntarily given when the subject of the search is not in custody. While
knowledge of the right to refuse consent is one factor to be considered in determining whether consent
existed, the government does not have the burden of establishing knowledge in order to prove consent (it
is not dispositive).
A police officer stopped a car that was missing a headlight. The car was packed with six occupants. The
officer asked the driver if he could search the car, and the police officer claims Alcala said yes. Another
witness testified that Alcala did not say yes, but did assist in the search by opening the trunk. During the
search the officer discovered several stolen checks. D moved to suppress the evidence on the basis that
the officer did not have consent to search the car.
The court holds that determining consent is a question of fact to be determined from the totality of
the evidence, but the government does not need to establish that a party was aware of his right to
refuse consent in order claim that a search was voluntary; the court recognizes that consent
cannot be coerced. The court argues that this rule is justified based on the strong personal and
police interest in consent searchesconsent searches are important to the police because they
may provide the only means of obtaining reliable evidence when a warrant cannot be obtained,
and because they enable the suspect to avoid the embarrassment and potential intrusion from a
full warrant search. The court argues further that a rule requiring the state to prove a party knew
he had the right to consent might eliminate consent searches. Specifically, warning citizens of
their right to refuse is impractical because consent searches arise spontaneously, and the
investigative context is not conducive to the same formalism appropriate for court rooms. The
court argues further that the requirement of a knowing waiver by a suspect has only been applied
in the trial context which by its nature is much more planned and deliberate; a knowing waiver
requirement is also inconsistent with third party consent which permit police to search even when
the actual suspect does not consent.
Dissent argues that at a minimum, the court should not admit consent when the subject of the search was
unaware that he could refuse to give consent. Dissent argues further that the burden on proving an
individual was aware of his right to refuse consent should be placed on the prosecution because the only
proof a suspect could offer of his refusal to consent would be his claim, but circumstances surrounding a
consent search might suggest to the officer that the suspect was aware of his right to refuse consent.

Both the majority and the dissent seem to think that warnings would have a large effect on
suspects behavior
o Social science studies contradict this assumptionstudies over the last several decades
on the social psychology of compliance, social influence, and politeness suggest that the
extent to which people feel free to refuse to consent is extremely limited given societal
pressures
Court offers assurance that the voluntariness of consent is carefully scrutinized by trial courts

57

At least one study suggests this is not truein one study found that in 6 years DC never
found consent involuntary and in most cases did not discuss the subjective factors that
the supreme court said would be relevant in determining voluntariness
o Some argue that if police are routinely given consent, they have little incentive to develop
individualized probable cause
Why is a warrantless and suspicionless consent search consistent with the 4 th amendment?
o Because consent is an exception to the ordinary PC/warrant requirement
o Constitutional rights can generally be waived, but waiver does not explain the 3 rd party
consent doctrine whereby police can searched based on the consent of someone other
than the suspect
o In Schneckloth the court treated 3rd party consent cases as issues of assumption of
riskD assumed the risk that police would be permitted to search areas to which D
granted access to someone else
o However, assumption of risk does not explain Illinois v. Rodriguez where the court
extended 3rd party consent doctrine to intrusions based on the consent of a third party
whom the police reasonably believed to possess common authority over the premises
Scalia Requirement for satisfying the 4th amendment is that an officers actions
be reasonable. Requiring that the third party actually have access to the place
the third party consented to being searched would impose a requirement that the
officers actions not just be reasonable, but also correct; if an officer reasonably
believes an individual has common authority over the premises, than the officer
can reasonably search it
Dissent Grounded in reasonable expectation of privacy (disagrees over
whether consent search constitutes a search); A third party consent search is
reasonable because by granting access to ones premises limits ones
reasonable expectation of privacy over the premises. If an individual has not
limited his expectation of privacy, the police cannot dispense with the ordinary 4 th
amendment requirements, and thus a warrant is required.
Florida v. Jimeno 4th amendment is satisfied when it objectively reasonable for the officer to
believe that the scope of the consent permitted him to open a particular container (within the
automobile)
o

Ohio v. Robinette 4th amendment does not require that an individual must be advised that he is free to
go before his consent search will be recognized as voluntary; determining whether consent is voluntary is
q question of fact to be determined from all of the circumstances, and whether an individual knew of his
right to consent is not dispositive
D was pulled over for speeding. After issuing D a warning and returning his license, the officer asked D if
he could search his car. D consented and the officer found a small amount of marijuana. P moves to
exclude the evidence on the basis that he did not know that he was legally free to go.
The court holds that officers are not constitutionally obligated to inform individuals that they are
free to go in order for a request for consent to search to be valid. The court applies the 4 th
amendment reasonableness requirement and finds that determining voluntariness is a question of
fact to be determined from all the circumstances. The court argues that while knowledge of the
right to refuse consent is one factor to be taken into account, it is not itself dispositive.

Robinette implicates the relationship between consent and a seizure

o Bostick a person is seized if a reasonable person in his circumstances would not feel
free to leave
o Schneckloth a consensual search is voluntary under all circumstances
Robinette was decided the same term as Whren suggest court is extremely reluctant to use the
4th amendment to address pretext in the enforcement of traffic violations
Implications of consent request one survey suggests that a substantial portion of citizens whose
consent was requested felt negatively affected by the police encounter
58

Consent in advance of a search

o Henry Cisneros proposed as part of a program for combating violence in public housing
that leases by accompanied by consent clauses giving police permission to inspect
apartments for firearms (though searches would be limited to daytime, and to
circumstances like PC no more intrusive than necessary to determine whether
weapons were present)
o Some question of whether these clauses would be considered valid
o In at least one instance these have been found to be valid in California parolees must
agree in writing as a condition of release to permit warrantless and suspicionless
searches
The court in these cases knows that these are not consensual encounters, however the court is
inclined to recognize them because it thinks consent searches are good for everybody
o People are almost always found to consent because the courts have crafted a consent
test that is very easy to fulfill
This test reflects the view that the courts think that consent searches are good
The courts have distinguished the 4th amendment from the 5th and 6th
amendments
the 5th and 6th are enforced rigidly because they serve the value of
attaining accurate trial results, whereas the 4 th serves as a shield to keep
out reliable evidence of guilt
5th and 6th amendments arise in moments where they are easy to
administerin the context of a formal trial; 4th amendment moments
arise in the field when they are logistically awkward to enforce and
implicate many additional considerations
o There is some evidence that the voluntariness of consent is unimportant everyone must
be alerted of their Miranda rights and almost everyone waives Miranda rights

Third-Party Consent

However, assumption of risk does not explain Illinois v. Rodriguez where the court extended 3 rd
party consent doctrine to intrusions based on the consent of a third party whom the police
reasonably believed to possess common authority over the premises
o Scalia Requirement for satisfying the 4th amendment is that an officers actions be
reasonable. Requiring that the third party actually have access to the place the third
party consented to being searched would impose a requirement that the officers actions
not just be reasonable, but also correct; if an officer reasonably believes an individual has
common authority over the premises, than the officer can reasonably search it
o Dissent Grounded in reasonable expectation of privacy (disagrees over whether
consent search constitutes a search); A third party consent search is reasonable
because by granting access to ones premises limits ones reasonable expectation of
privacy over the premises. If an individual has not limited his expectation of privacy, the
police cannot dispense with the ordinary 4th amendment requirements, and thus a
warrant is required.
Dispute above comes to a head in following caseif consent is based on assumption of risk, then
if someone gives consent for a search who lacked the authority to give that consent, the consent
should be invalid; conversely if the rationale is reasonableness from the police officers
perspective, the consent should be fine

Georgia v. Randolph Whether consent is sufficient to grant police the authority to search a location
depends on the reasonableness of the search involvedthe analysis for determining if a search was
reasonable involves an assessment of the facts of the cases and a social norms analysisunder the
circumstances was it reasonable for an officer to believe that he had consent to search
D and his wife were involved in a domestic dispute. She called the police and when officers arrived at the
house she told them that her husband was a cocaine user, and claimed that there was drug
59

paraphernalia in the house. The woman then gave consent to search the house, but D prohibited the
police from entering his house. The police entered the house anyway and obtained enough evidence to
procure a warrant. D moves to exclude the evidence because the initial search was unreasonable.
The court finds that the search was unreasonable, and accordingly the evidence should be
excluded. The court applies the reasonableness rationale to consent searches (requiring only
that the officer reasonably believed he had consent) and argues that social expectations about the
authority of co-inhabitants play a significant role in determining whether a search was reasonable.
Thus, whether consent is valid will be highly dependent on the facts of the case and local social
practicesthus a landlord/hotel manager could not consent to the search of a room, and most
guests probably could not consent to searching through certain areas of another persons house.
On an application of the reasonableness/social expectations requirement the court finds that it
was not reasonable for the officers to believe that they had consent to search because a house
guest would not feel free to enter when one of the owners of the house was telling him that he
could not enter. The court argues that this finding should not significantly impact police activity
because informants can still provide police with information so that police can obtain a warrant
and police authority to enter homes for community caretaking is unchallenged by the ruling (so it
will not negatively impact domestic abuse victims). The court argues further that the
reasonableness requirement implicates a fine line because in this case an individual would be
protected if at the door objecting, but would not be protected if he was in the bedroom, and thus
could not object.
Dissent voices concern that the ruling will have adverse effects on domestic abuse victimsthe dissent
interprets the rule to suggest that the abusing party will be able to keep out the police, even when the
abuse victim is trying to permit the police to enter. The court argues that co-occupants have assumed the
risk that someone they permit to enter might give the police access. The dissent rejects the social norms
analysis, arguing that that it introduces uncertainty into the analysis and that widely shared social
expectations are not a constant. The dissent also sites US v. White to suggest to suggest that the court
has previously recognized an assumption of risk rationale, and argues that this rationale has also been
extended to an analysis of objects and places. The dissent argues further than if an individual wants to
protects items from discovery from a 3rd party consent search, that individual can place the items out of
access and control of the 3rd party (e.g. in a locked cabinet). The court rejects that the owners interest is
protected in the holding because the owners interest is only protected if he happens to be at the front
door.

United States v. Matlock D was arrested and detained in a squad car. While D was in the
squad car, police obtained consent from his wife to search the house. Court upheld the search
o Case occurred before Georgia v. Randolph
o Randolph raises question of whether there is any way to square Matlock with the case
Randolph did not overrule Matlock
One way to address the issues in Randolph would be to combine consent analysis with another
standard (e.g. reasonable suspicion)consent is sufficient to give police the authority to search,
but only if police have some RS to suspect criminal activity

Exclusionary Rule: Standing and Scope

If no adverse consequences flow from the violation of a constitutional right, government officials
will violate the right as often as they wish and victims will not press their claims in court
Before Mapp v. Ohio the 4th amendment was not enforced at all against local policeMapp
changed this buy extending the exclusionary rule to cover state police (who did most of the
searching and seizing)
o Since Mapp exclusion has been the primary remedy for 4 th amendment violations

United States v. Leon Determining whether the exclusionary rule is necessary involves a case-by-case
determination; evidence should not be excluded when an officer acted in a manner that was objectively
reasonable, as in when an officer acts in accordance with an apparently valid warrant that later turns out
60

to be defective, but an officer has not acted reasonably if he knew or should have known that the
magistrate was acting pursuant to an affidavit that contained false information, if he knew that the judge
had all but abandoned his role, or where the warrant is so facially deficient that it was not reasonably for
the officer to assume it was valid
A confidential informant alerted police that two individuals were selling large quantities of cocaine and
meth. The police began an investigation to corroborate the tip. The police corroborated the tip and
obtained a facially valid search warrant. Acting pursuit to the warrant the police searched the premises
and found a large quantity of drugs. Ds seek to exclude the evidence obtained from the search on the
grounds that the search warrant was deficient. The court considers whether it should modify the
exclusionary rule so as not to bar the admission of evidence seized in reasonable, good-faith reliance on
a search warrant that is subsequently held to be defective.
The court holds that a search pursuit to a valid search warrant that later turns out to be defective
is constitutional so long as it is conducted reasonably and in good-faith reliance on a search
warrant. The court argues that the 4th amendment does not expressly require the exclusionary
rule. The court argues further that there are substantial social costs associated with the
exclusionary rule because it interferes with the polices truth-finding function. The court argues
also that the social costs are particularly high when the police have acted in good faith reliance on
a search warrant because there are no deterrent effects on police conduct to counter-balance the
negative social impact. The court finds further that suppression of evidence should be ordered
only on a case-by-case basis in the unusual case in which the exclusion will further the purposes
of the exclusionary rule. Thus, an officers reliance on a magistrates PC determination does not
justify use of the exclusionary rule if the officers actions are objectively reasonable; the officers
actions will not be objectively reasonable if the magistrate or judge issuing the warrant was
misled by in information in an affidavit that the officer knew or should have known was false,
where the officer knows that the judge has abandoned his judicial role, or where a warrant is so
facially deficient that the officer cannot assume it is valid.
The dissent criticizes the majoritys ruling because it implies that the exclusionary rule is merely a
judicially created remedy designed to protect 4th amendment rights, rather than a constitutional right; the
dissent thinks that use of the exclusionary rule has been incorporated into the 4 th amendment. The
dissent argues that the admission of illegally obtained evidence implicates the same constitutional
concerns as the initial seizure of such evidence and thus should be protected by the same mechanism.
The dissent argues further that the social balance of interests are not nearly as strong as suggested
because studies have shown that the costs of the exclusionary rule are low (exclusionary requests are
rarely granted).

In Leon the court splits the right and the remedythe 4 th amendment protects rights, but the
exclusionary rule is not part of that right
Deterrence argument
o Excluding the evidence in these cases will not achieve any deterrence because the
officers are acting in good faith
o The exclusionary rule is not targeted at magistrates, but at the police
Rule after Leon If the police are relying in good faith on a warrant from a magistrate, evidence
should not be excluded unless
o Belief that warrant was sufficient is not objectively reasonable
A bare bones warrant is not sufficient
Not sufficient when a warrant fails to specify the scope of the search
Not sufficient when the magistrate is not neutral or detached
Not sufficient if the affidavit contains falsehoods
The courts ruling reflects the view that the exclusionary rule will not have any deterrent effect
when an officer is acting objectively reasonably
o The exclusionary rule cannot have any affect on a magistrate because a magistrate is
intended to be a neutral observer, and thus is not intended to have deterrent effects on
his conduct
61

The law has responded by developing 1983 actions which permit those subject to
unconstitutional action to sue for damages
Leon seems to have had little effect on magistrates no evidence suggests that warrants are
now more or less common, or are reviewed with more or less scrutiny
o When will it be unreasonable for police to rely on a magistrates warrant?
Presumably this will happen only when the magistrate is obviously wrong
o Similarly, a magistrates decision to issue a warrant will be overturned on appeal only
when it is obviously wrong (Gates)
Thus, maybe Leon does not do a whole lot of work (because any case where the
officer acted unreasonably, the warrant is likely to have been overturned anyway
When decided, Leon was thought to be very important for warrantless search cases
o The governments argument in Leon would seem to be immediately applicable to a
situation where the government argues that even if a search was not constitutional, it was
close enough that a reasonable officer could have believed it was constitutional
o However, Leon has not been expanded to warrantless searches
There is no statute that requires state courts to have an exclusionary rule
o So its only possible source is the constitution, but the court says the constitution does not
require it
may mean states need not have an exclusionary rule
might also mean that the legislature could do away with the exclusionary rule as
long as they replaced it with an equally effective remedy
Illinois v. Krull court applied the good-faith exception identified in Leon to a search pursuant to
an unconstitutional state statute
o The application of the exclusionary rule to suppress evidence obtained by an officer
acting in objectively reasonable reliance on a statute would have as little deterrent effect
on the officers actions as would the exclusion of evidence when an officer acts in
objectively reasonable reliance on a warrant
Arizona v. Evans Court applied the good-faith exception of Leon when an individual was
arrested because an error in the court clerks database said that there was a warrant out for him
o Exclusionary rule operates as a deterrent on police misconduct, not mistakes by court
employees
o No evidence that the court employees are inclined to ignore or subvert the 4 th
amendment
Groh v. Ramirez court excluded evidence because it found that an officers actions were not
objectively reasonable when the officer searched pursuant to a deficient warrant that the officer
had prepared (did not contain persons or things to be seized)
Key lesson of Leon, Krull, Evans The exclusionary rule applies only when the error is one made
by the police (when police conduct is not objectively reasonable)
Leon Good-Faith Exception and State Courts
o Leons good-faith exception is not applied everywherea number of state courts have
construed their own constitutions to suggest good faith is irrelevant when reviewing a
magistrates finding of PC
This is OK because state courts can find their constitutions are more constraining
than the 4th amendment
o In New Jersey, the state court mostly adopted the view of the Leon dissent

Herring v. United States Extends Leon; when police have conducted a search in good-faith that turns
out not to have been warranted, the exclusionary rule should be applied only when it will have deterrent
effects when the search turned out to be deficient because of recklessness or purposeful error by the
police.
D went to the sheriffs department to retrieve something from his impounded truck. An officer asked the
county clerks office to determine if there was a warrant out for D, and the clerk replied that there was.

62

The officer then arrested D and searched him where he found a gun and meth. Later, the officer learned
that the warrant had been recalled 5 months earlier. D then moved to suppress the evidence recovered.
Use of the exclusionary rule is justified only where it will deter police misconduct; thus use of the
exclusionary rule is justified when police have acted recklessly or purposefully, but not where the
police have merely acted negligently in maintain a system with inaccurate information that other
officers relied on in good faith as part of a search. The court argues that the exclusionary rule
should be applied only where the benefits of deterrence outweigh its costs. The court argues that
exclusion does not outweigh its costs unless police conduct is sufficiently deliberate that it can
be meaningfully deterred.
The dissent argues that the exclusionary rule would have significant deterrent effects in this context
dissent argues essentially that the exclusionary rule always has significant deterrent effects when it
operates on police error. Thus, unlike Leon where error was made by the magistrate, here exclusion is
appropriate because the error was made by the police.

Leon and its progeny focus on the blameworthiness of police conduct and the need for
deterrence
Dissent also argues that there is a more majestic conception of the exclusionary rules purpose
that the rule provides a means for the judiciary to avoid the taint of official lawlessness and
ensure the public that the government will not profit from lawless behavior

Standing

The exclusionary rule remedy is available only to individuals who have standing to object to the
constitutional violation
Theories of standing
o Target theory subsequently rejected
o Legitimately on premises subsequently rejected
o Individual has reasonable expectation of privacy in a place
Implications of standing are that police can use inappropriate means to gather evidence on
someone else because that person will not have standing
Standing requirements
o Must show have an adversarial stake in the claimensures sharp litigation necessary to
rule
Will always be satisfied in a suppression motion
o Must show rights were personally violated
Evolution of Standing Doctrine
o Jones v. United States suggests anyone legitimately on the prmises has standing
In order to have standing to challenge an illegal search or seizure, one must
have been a victim of the search or seizure, one against whom the search was
directed, as distinguished from one who claims prejudice only through use of
evidence gathered as a consequence of a search or seizure directed at someone
else
o Rakas v. Illinois rejects the legitimately on the premises theory, and imposes a
reasonable expectation of privacy requirement
A person who is aggrieved by an illegal search or seizure only through
introduction of damaging evidence secured by a search of a third persons
premises or property has not had any of his 4th amendment rights infringed
Police stopped what they thought was a getaway car and seized a sawed off
shotgun in plain view; the evidence could not be excluded by the passengers
o Now looks like ownership of property seized does not give standing.

Minnesota v. Carter Temporary guests (those merely permitted on the premises) do not have a
reasonable expectation of privacy in another persons home and thus do not have standing to challenge
63

illegal searches and seizures of these places when evidence that can be used against them is found
(however, almost all social guests will have standing); conversely individuals more like overnight guests
do have standing.
Ds were seen by a police officer through a crack in window blinds bagging cocaine. When the Ds left the
building, the police stopped the Ds and searched their car. They discovered a gun, pagers, a scale, and
cocaine. Ds then moved to suppress arguing that the initial observation of the drug packaging was an
unreasonable search, and thus the evidence discovered subsequently was the fruit of the poisonous tree.
The court finds that the Ds do not have standing to challenge search, and accordingly the
evidence discovered should not be suppressed. The court argues that in Rakas the court
established that in order to claim the 4th amendment, a D must demonstrate that he had an
expectation of privacy in the place searched and that his expectation was reasonable. The court
argues that the amendment suggests that the 4th amendment protections extend only to a person
in his house, but the court have extended the doctrine to cover overnight guests. However, the
court rejects an extension of the doctrine to anyone legitimately on the premises. The court
argues that the purely commercial nature of the transaction, the relatively short period of time on
the premises, and the lack of previous connection between respondents leads that court to
conclude that Ds were more like individuals merely permitted on the premises, and thus do not
have standing to challenge the search.
Scalia Examines closely text of the 4th amendment and finds that it is not intended to protect
individuals who are in other peoples houses. 4th amendment says it protects people in their
papershouses, etc. Scalia argues that this could mean their houses or their respective
houses, but it must mean their houses because otherwise respective would apply to papers,
effects, etc. and would lead to absurd results because it would give any individual standing to
challenge the search of another individual. Scalia also examines the historical context in which
the amendment was adopted and argues that historical context indicates that individuals were
intended to be protected only in their homesthe law is essentially derived from the notion that
a mans home is his castle. He argues that while it is possible to regard an overnight lodging as
a mans temporary residence, a similar finding is not reasonable for a place where an individual
merely goes to pack cocaine.
Counters: 1 Assumes that the constitution couldnt possibly mean to give everybody (the
people) the right to challenge the search of another individual, but elsewhere in the constitution
the phrase the people is used to refer to such a collective right
2 It is not necessarily true that one never has a reasonable expectation of privacy in someone
elses pockets
o Sometimes individuals give things to other people to hold
o At the very least, could litigate this issue on social norms analysis (and would probably
win!)
Kennedy Argues almost all social guests have a legitimate expectation of privacy and thus
protection against unreasonable searches in a hosts home. In this case, the individuals did not
have a reasonable expectation of privacy and thus were not protected by the 4 th amendment.
Breyer Argues that individuals do have standing to claim a 4 th amendment violation, but no
search occurred, and thus evidence should not be excluded.
Dissent reflects the concern that there is no remedy that prevents police from violating the 4 th amendment
to obtain evidence on someone other than the owner of the house or container that is being searched.
The courts general reaction to this is that police are deterred because by granting the
exclusionary rule to those individuals with a reasonable expectation of privacy, police will always
run the risk that some of the evidence they obtain will be excluded in certain circumstances, and
this risk is sufficient to prevent the police from violating 4th amendment (also protected through
1983 actions)

Standard developed by Carter is a social Norms Standard whether an individual has standing
depends on whether the individual has a personal expectation of privacy that society is prepared
to recognize as reasonable
64

The standard litigating this standard requires an analysis of social norms for an area;
whether individuals in that area have a reasonable expectation of privacy in the house or
container where their things were located depends on community practice
Litigating whether have reasonable expectation of privacy in someone elses
belongings
If give something to spouse to hold in purse, litigation might depend on
how purse is treated by others in the group, who else is accessing the
purse, etc. argue that no one else could/would have accessed purse
and thus expectation of privacy was reasonable
o Affirmative Criteria
Overnight guests do have this expectation of privacy because individuals are
most vulnerable during the night when they are sleeping
Majority of justices suggest that all social guests almost always have a
reasonable expectation of privacy
o Negative Criteria following suggest no expectation of privacy
Individual at a persons house for a short period of time
Individual at house for purely commercial purpose
Lack of a meaningful connection between the homeowner and individual seeking
exclusion
o Scope of standing doctrine bounded by where one has a reasonable expectation of
privacy
One does not have a reasonable expectation of privacy everywhere in the house
Issue with standing doctrine standardthe question for assessing standing is the same question
for assessing whether the 4th amendment was engaged ( a search occurred)
o Standing seems to involve a more zero-ing in sort of analysis
o Search involves a broad reasonable expectation analysis
In spite of the majority opinion, it seems like a majority of the justices (5) support the notion that
almost all social guests are protected (have standing) under the 4 th amendment
Some of language in majoritys opinion suggests that the individuals activity was not protected
because there is no legitimate expectation of privacy in illegitimate activities
o However, this logic would undermine almost all suppression motions because
suppression motions are used exclusively for excluding evidence related to illicit activity
Argument for strict enforcement of 4th amendment to exclude evidence of criminal activityby
making it harder to search an apartment for drugs, the 4 th amendment protects apartments where
no drugs will be found
o Remedy seems inconsistent with this aimin order to protect the public at large, we let
known criminals go free
United States v. Payner D charged with falsifying income tax return; one federal agent lured a
bank officer to dinner while another broke into the bank officers hotel room and stole document
used against the defendant
o The court found that D lacked standing
This case suggests issues raised by standing doctrinelaw enforcement can use standing rules
to determine how to conduct operations in order to obtain the evidence they want
o Problem is that standing rules are intended to be decision rules whose audience is the
courtthey are not intended to be considered by law enforcement when structuring
activities
o However, because of their role as decision rules, these rules have become conduct rules
determining how police conduct investigations
According to Justice Scalia, the Rakas principle (one can only assert own 4 th amendment
interests) is compelled by the 4th amendment
o This means that the only persons who will use the 4th amendment to challenge evidence
will be persons trying to protect their own illegal activities
o

65

This may suggest that the 4th amendment bars the exclusionary rule (or at least
challenges its function) as a remedy

Fruit of the Poisonous Tree

In fruit of the poisonous tree cases, one must always consider whether the suspect has standing
to challenge the initial search/seizure
Fruits include physical evidence, statements, confessions, etc.
Different questions apply to primary evidence and downstream evidence
o Primary evidence evidence discovered in the process of an illegal search or seizure
o Downstream evidence evidence discovered as a result of the evidence discovered
during an illegal search or seizure, but not discovered during the unconstitutional action
Suspects implicated by downstream evidence are much less likely to have
standing to challenge initial search or seizure

Wong Sun v. United States

Police arrested a man named Hom Way and found heroin in his possession. Hom Way claimed that he
bought the heroin from an individual known as Blackie Toy who owned a laundry on Leavensworth
street. Based only on this testimony, police went to Leavenworth and knocked on the door of a laundry
called Oyes. When the agents identified themselves as law enforcement, the proprietor fled inside the
building. The police followed him and arrested him in his bedroom. Toy claimed that he did not sell
narcotics, but said that he knew an individual named Johnny Yee who did have drugs. The officers went
to Yees house, and after a short conversation Yee produced the drugs. He implicated another individual
named Wong Sun and pointed out where Wong Sun lived. Wong Sun and Toy were both arrested and
both gave statements to the police that they subsequently refused to sign/verify. Both Sun and Toy seek
to exclude the evidence as the fruit of the illegal seizure of Toy. The lower court found that the police
lacked PC for Toys arrest.
The Court finds first that the entry into Toys house was unlawful (or at the lower court could have
found so). The Court argues that the police did not have any information that would have
suggested that the Blackie Toy implicated from by Hom Way was the same as the proprietor at
Oyes laundry, and thus that finding that police had the authority to enter the house would be to
suggest that a vague suspicion becomes PC when ambiguous suspect conduct is added. The
Court finds next that Toys bedroom testimony should be excluded. Evidence seized during an
unlawful search cannot constitute proof against the victim; this restriction extends to verbal
statements made, even though they may be the result of intervening free will. The court finds next
that as against Toy, the drugs discovered at Yees house must also be excluded. The court argues
that the evidence was come at by exploitation of an illegality, and is not sufficiently
distinguishable to be purged of the primary taint. The court finds next that Wong Suns
statements must be excluded because heresay testimony cannot be used to corroborate an
individuals statement, and thus the police have no basis for corroborating Toys story and his
case is dismissed. The Court finds Wong Suns statement admissible because even though his
confession was the fruit of a bad arrest, the connection between the arrest and statement had
become so attenuated to dissipate the taint because Wong Sun made the statement after he was
released (moreover, he has no standing to challenge the initial bad search!). Corroboration is an
issue with Sun toothe court remands the case for further proceedings because Toys statement
was not enough to corroborate, but Yees drugs could provide corroboration for Sun.

Litigating the Case

o On Toys Bedroom Statement
Police argue that there was an intervening event that broke proximate causation
that intervening event was Toys decision to speak
o Wong Sun has no standing to challenge the initial entry into Toys house; thus if he wants
to claim FOPT, he must claim that his statement was the product of an illegal search as to
him

66

Toys statement (if could be corroborated), would it be exdluded

Analysis would proceed in the same way as the analysis of Wongs confession
the connection between the illegal search and the speech had become to
attenuated for the speech to be FOPT
Would counter with Toys situation is distinct because he was baited
with evidence that is going to be excluded in his trialnot all that
convincing, because that is just another way of saying Toy has standing
to object to illegal searches and FOPTs, so if this is one, then he can do
that
The chief poisonous tree in Wong Sun is Toys arrestif the arrest were legal, then Toys
statements would be legal, the heroin found in Yees bedroom would be admissible, etc.
o The court concluded that the arrest was not legal because Toys flight was ambiguous
(partially because the officer never dispelled the misimpression that he was just there to
pick up his laundry)this is shaky PC analysis
Drugs taken for Yee couldnt be used against Toy, but they could be used against Son because he
lacked standing to complain of Toys illegal arrest
Police want to claim in Wong Sun that Suns unprovoked flight gave PC and exigency
Overview of FOPT
o The exclusionary rule requires the suppression of illegally seized evidence
o Ds sometimes claim that a given piece of evidence was not illegally seized, but that its
discovery was caused by an illegal search or seizure (FOPT)
o Justifications:
The government should not benefit from its wrong doing
If police know they can use the fruits of illegal searches, they will have an
incentive to search illegally
o Response/criticism
Suppressing reliable evidence is a bad thing because it takes the trial further
form the truth
Suppressing fruits of illegal searches is not necessary to ensure compliance with
the 4th amendment because police cannot anticipate evidence they will find down
the road because of a search (thus the incentive problem is not worth worrying
about
In response, the law splits the difference
1. Fruits of the poisonous tree must be suppressed, unless the taint of
the illegal search has dissipated
2. No D can complain of the illegal search of someone else
Contours of fruits of the poisonous tree
When evidence is discovered as a result of an unlawful search of seizure
1. Fruits of the poisonous tree must be suppressed, unless the taint of the illegal
search has dissipated
2. No D can complain of the illegal search of someone else
o The basic concept underlying this criterion is causation
Was the illegal search a but-for cause of discovering the evidence
Was the evidence obtained through an independent source? (if so, not
suppressible) suggests police had two sources for coming to the same
evidence and one was legal
o This is not a hypothetical inquiry- police actually had two
sources, and this suggests the police would have gotten the
warrant anyway
o If police would not have applied for a warrant absent the illegal
search, then evidence would not have been inevitably
discovered
o

67

Would the evidence inevitably have been discovered? (if so, not
suppressible) is a hypothetical independent sourcewould the police
have inevitably discovered the evidence in the course of their
investigation
Was the illegal search the proximate cause of discovering the evidence?
Relates to 4th amendment concept of attenuationwhether the taint of
the illegal search had dissipated
No per se rules, but rather is probably a balancing of facts analysis
Intent to search illegally in hopes of obtaining later evidence suggests
proximate cause; intervening events, likelihood that would have
discovered evidence anyway, etc. suggest no proximate cause
Brewer v. Williams establishes inevitable discovery as a means for severing proximate
causation in FOPT analysis, and thereby overcoming suppression motion
o At time, court accepts inevitable discovery when police had a search plan in place that
was 1-2 miles from the evidence, and was planning on closely searching the area in
which the evidence was ultimately found
The linchpin of the inevitable discovery doctrine is that the police must be trusted to reveal 1)
what they would have done, 2) that they wont invent evidence to justify a search, once they have
discovered evidence illegally

Murray v. United States Independent source doctrine applies to evidence initially discovered during, or
as a consequence of, an unlawful search, but later obtained independently from activities untainted by the
initial illegality
Law enforcement officers had been surveying D and several of his co-conspirators. They saw D drive
into a warehouse. Ds vehicle was driven out of the warehouse by other drivers. The police arrested
these drivers and discovered marijuana in the vehicle. After obtaining this information, other officers
forced entry into the warehouse and saw numerous burlap-wrapped bundles. They left the warehouse
without disturbing anything and applied for a warrant in which they did not rely on any evidence obtained
during their entry into the warehouse. Before trial, petitioners moved to suppress evidence found in the
warehouse as the fruit of the poisonous tree.
The court finds first that the independent source doctrine applies to evidence initially discovered
during, or as a consequence of, an unlawful search, but later obtained independently from
activities untainted by the initial illegality. The court argues further that the inevitable discovery
doctrine is an extrapolation of the independent source doctrinesince tainted evidence would be
admissible if it was discovered through an independent source, it should be admissible if it
inevitably would have been discovered by an independent source. The court argues that these
rules to not create perverse incentives for the police because an officer with PC to enter a building
would not do so without a warrant because of the possibility of discovered evidence being
excludedat the very least he will have to justify his actions to the magistrate. Applying these
rules to this case, the court remands the case for a determination of whether the marijuana was
discovered through a truly independent source; the court recognizes that the warrant application
did not rely on prior entry to the warehouse, but if the agents would not have sought a warrant if
they had not earlier entered the warehouse, then the warrant search would not have arisen
through an independent source.
Hudson v. Michigan Proximate cause in the FOPT doctrine can be severed when the constitutional
interested protected would not be served by the suppression of evidence. To determine if the
constitutional interest protected would be served by the suppression of evidence, balance the interests of
the social costs of deterrence against the benefits.
Police obtained a warrant authorizing a search for drugs and firearms at Ps home. When the police
executed the warrant they violated the knock and announce requirement. P moves to exclude the
evidence as the subject of an illegal search.

68

The court holds that the exclusionary rule should never be applied to knock-and-announce
violations because the social costs to the violations are high, the deterrent benefits are minimal,
and the incentives to violate the rule are minimal.. The court argues that suppression of evidence
has always been a last resort, and is appropriate only where its deterrence benefits outweigh its
social costs. The court argues that exclusion is not warranted merely because a constitutional
violation is a but-for cause of obtaining evidence, but rather for exclusion to be justified the
violation almost must not be so attenuated as to justify exclusion (remove the taint). The court
argues that a violation can become so attenuated even in the presence of a direct causal
connection when the interest protected by the constitutional protection would not be served by
suppression of the evidence obtained. In this case, the court argues that deterrence does not
outweigh social costs. The court argues that there are high social costsit would result in a
flood of litigation on whether an officers knock and announce was sufficient, and may deter
officers from proceeding safely in executing a warrant. The interest on the deterrence police
conduct is low because police conduct encourages police safety.
Kennedy In this case, relevant evidence was discovered not because of a failure to knock-andannounce, but because of a subsequent search pursuant to a lawful warrant. Suggests that
violation was not the but-for cause of the discovery of evidence (inevitable discovery?).
Dissent much more concerned about applying knock-and-announce.

One might argue that the knock-and-announce principle should be folded into the broader
requirement that searches be carried out reasonablythe same requirement that limits police use
of force against criminal suspects
o One could also argue that the rule is a good rule, but it should be left out of 4 th
amendment litigation (not protected by the constitution) because courts are not will
equipped to decide when no-knock entries are appropriate
Counter all 4th amendment litigation involves these fine-grained distinctions in
what police officers saw and heard
o Perhaps all of this suggests only that a detailed constitutional law of privacy is bound to
draw fine lines, question is should it draw these fine lines in the context of knock and
announce?
Direct application of doctrine to Hudson
o FOPT requires the suppression of all evidence the police obtained for a search or seizure
o Violation of knock-and-announce cannot cause the police to discover evidence, unless
the suspect is in the process of destroying the evidence at the time of police entry
o There is no constitutional right to be permitted to destroy evidence
o Thus knock-and-announce should never be enforced by suppression motion
Causation-based analysis is not the only way the 4th Amendment law governs the scope of the
exclusionary ruleanother approach focuses on whether police conduct was blameworthy
Additional implications of Hudson
o Hudson recognizes that the knock and announce rule is a 4 th amendment requirement,
but finds that the knock and announce rule is not remedied through the exclusionary rule
Language in opinion says that the suppression remedy is a remedy of last resort
Suggested the Mapp interpretation of a broad exclusionary rule is overbroad
dicta
o Thus, the case opens up the possibility for the exclusionary rule not to be applied to other
4th amendment violationsthis could provide the basis for overturning the exclusionary
rule 50 years from now

69

Regulating Police Interrogations and Confessions

The Fifth Amendment Privilege: Background Values and Scope

Provisions relied on by the court to regulate interrogations:

o 5th Amendment No person shall be compelled in a criminal case to be a witness against
oneself
o 5th amendment/due process clause no person shall be denied liberty without the due
process of the law
o 6th amendment in all criminal prosecutions, one has a right to counsel
Questions implicated by American regulation of interrogations
o Why not allow people to be asked questions on the stand and let a jury draw inferences
from a defendants refusal to answer? (Why not interpret the 5 th amendment differently)
Fear that self incriminate is associated with inhumane practices (torture)
Cruel to put people in the position of being forced to perjure themselves or
accuse themselves
Flows from adversarial we are committed to a process where the state bares
the whole burden of proving guilt
5th amendment is intended to provide some private space to protect the innocent
Elements for the 5th amendment to apply; 5th amendment applies to
o Persons 5th amendment protects people, not artificial entities (e.g. corporations)
Because the injuries the 5th amendment is intended to prevent are suffered only
by people
o Compulsion
Initially thought of only as compelled testimony in court
Step 2 (reflected in Miranda): Informal pressure of the police interrogation room
recognized as compulsion
o Evidence is testimony evidence is privileged, but not physical testimony (can take your
blood, but not your testimony)
Suggests something uniquely invasive about asking questions (because of
potential for lying)
Suggests something particularly degrading about confession
o Incrimination
Incrimination element can be eliminated by a grant of immunity
The right must be invoked at the time of potential incrimination, or else the right is
waived
In the civil context, one can incriminate oneself for a criminal trial, so one
must invoke the privilege in civil subpoenas if hoping not to be criminally
implicated
Promises of immunity sometimes come with immunity in use and use of
derivatives from testimony (this is what D wants)this mean that not only is
testimony eliminated from evidence, but it cannot be used to lead to other
evidence; police must have an independent source, and the existence of this
independent sourced is monitored closely by the police
If get immunity- should testify on EVERYTHING
This is good for prosecutors because prosecutors get more complete
testimony
The Court rejected an analogy between civil subpoenas and searchesso information
subpoenaed is not protected by the 4th amendment, even though it may be the same information
o This means that subpoenas need not be protected by PC
o Analogy rejected because a subpoena is not protected
70

THE POINT OF THIS INTRODUCTION IS THAT MIRANDA WAS NEVER AN INEVITABLE

CERTAINTY
***The Fifth Amendment, unlike the 4th Amendment takes the perspective of the guilty person
one must have incriminating evidence in order to be protected

Voluntariness Doctrine and its Discontents

Overview of Current State of Miranda Doctrine
Adequacy of invocation
o Davis invocation must be unequivocal
Miranda told us once suspect invokes, questioning must cease
o Government must merely show one did something to waive
Miranda says burden on proving waiver is higher
In reality, fairly easy to prove waiver
Which right did suspect invoke?
o Silence Apply Mosley
Questioning must cease immediately, but in the face of subsequent interrogation:
Police must scrupulously honor invocation, but can return
Analysis proceeds as did police scrupulously honor invocation?
Fact bound inquirytime gap, different detectives, different crime
(unclear which of these criteria is necessary)
o Counsel Apply Edwards/Shatzer
Edwards police required to cease questioning and couldnt go back unless
subject re-initiated
Legal focus on what re-initiation means
Much more protective than Mosley rule
Shatzer if invoke right to counsel, is a 2-week rule once allowed to return to
your normal life for 2-weeks, police can re-question you (includes re-release into
jail)
Unclear if will have any effect on Mosleymaybe indicates that the time
element is most important in Mosley

Factual accuracy of statements made under duress is problematic where the only means of
stopping the interrogation is to assent to the interrogators views of what you did
o thus the view developed that a person should not face a coercive interrogation designed
to yield self-incriminating evidence
Opposition to coercive interrogation gained support from the practices of the High Commission of
the Court of Star Chamber in England which required one to swear that they would answer all
questions truthfully before knowing the subject of the inquiry; objection was based on the notion
that it is unfair for the state to attempt to coerce an individual to contribute to his own conviction
In spite of this opposition, the Fifth Amendment freedom from self-incrimination did not extend to
confessions at the founding of the USconfessions were excluded only if they were
untrustworthy
In 1897, Supreme Court brought pretrial interrogation into the scope of the 5 th amendment
o Bram v. United States Bram was charged with killing the master of the ship he was on
travelling from Boston to South America; Brams confession occurred when he was
stripped naked
The situation of the accused and the nature of the communication made to him
by the detective necessarily overthrows any possibility that his confession could
have been the result of purely voluntary mental action
Wherever a question arises whether a confession is incompetent because not
voluntary, the issue is controlled by the Fifth Amendment
Consider the conversation by the light of the impression it was calculated to
produce on the mind of the accused
71

Bram had little immediate impact

Not applied to the States until 1964 (Malloy v. Hogan)
Court invoked the 5th amendment, but relied on the CLs voluntariness standard,
which rests on 14th amendment due process
DUE PROCESS VOLUNTARINESS TEST
Brown v. Mississippi Inaugurated the voluntariness (that confessions be voluntary) requirement
for state cases
o A mob obtained a confession by beating men with belts until they confessed
o Recognized that precedent dictated that the 5th amendment did not bind state courts
o However, the state is free to regulate the procedure of its courts unless in doing so it
offends some principle of justice so rooted in the traditions and conscience of our people;
non-voluntary confessions violate the 14th
After Brown, voluntariness cases were complicated and very fact-driven; Ds claimed police
brutality and the police denied it
o E.g. Ashcroft v. Tennessee Ashcraft claims he was abused, officers claim they were
courterous
o Watts v. Indiana D confessed after several basically continuous days of questioning
during which he was put in solitary confinement at night
A statement to be voluntary need not be volunteered, but it cannot be the product
of sustained pressure by the police
Should permit this sort of interrogation when there are grounds to suspect an
individual. Introduced central issue as that being denial of access to a lawyer.
o Debate in Watts continued until 1960s; court began to shift its focus to prevent coercive
interrogation
courts focus shifted towards an analysis of whether the police conduct was
unacceptable in a free society
Justices increasingly distrusted fact-finding process (and thus the fact-bound
voluntariness test lost favor)
Justices thus driven to an alternate voluntariness test in Massiah
Summary
o The Court began its regulation of confessions with the due process requirementsthis
meant that testimony was admissible only if confessions were voluntary; voluntariness
requirement extended to regulate
o Activities court seeking to regulate question through this entire period was what,
besides physical violence, are police prohibited from doing?
Physical violence
Extended interrogation in uncomfortable positions
Suspects denied ability to communicate with others
Deception
o This method of regulating confessions became disfavored because it involved a very factbound, totality of the circumstances analysis, and thus shifted focus of regulation
o

Step 2: Regulating interrogation through the 6th amendment right to counsel

Massiah v. United States An individual has the right to counsel during all police questioning (direct and
indirect) that begins at the time of arraignment and extends to the period of trial.
P was indicted for transporting narcotics on a US vessel from South America. P retained a lawyer,
pleaded not guilty, and was released on bail. Meanwhile, one of Ps accomplices turned on P and planted
a radio transmitter in his car so that an officer could listen to their conversation. P appeals his conviction
arguing that it was an error to permit the officer to testify about his conversation.
The court holds that the right to counsel extends from the time of arraignment until the beginning
of trial. The court holds further that if this ruling is to have any efficacy, it must apply to indirect
and surreptitious interrogations, as well as those conducted in a jail house. The court argues that
the right to counsel is necessary because the most elemental concepts of due process require an
72

indictment be followed by a trial presided over by a judge and protected by procedural

safeguards. The Court recognizes that the police may need to continue investigation after
arraignment, but they cannot use evidence of a Ds statements in the absence of counsel against
him.
Only the soundest of reasons is necessary to warrant exclusion of evidence. The rationale would seem to
apply to any time that an individual is questioned, whether or not that individual has been indicted. This
holding amounts to prohibiting in the use of evidence any confessions made by the accused because
once an accused has a lawyer, he will not confess. This rule also draws absurd distinctions because
testimony from an accomplice would be admissible, but not if the police are involved, and thus this will
decrease the number of informants.

Meaning of Massiah was not completely clearnot clear how far the right to an attorney
extendedit was unclear whether it mattered if D had already been indicted, been arraigned, or
retained counsel
Escobedo D had been arrested, but not charged and invoked his right to counsel

Escobedo v. Illinois Where the investigation is no long an inquiry into an unsolved crime, but has begun
to focus on a particular suspect, the suspect has been taken into police custody, the police carry out
interrogations that lend themselves to eliciting incriminating statements, the suspect has requested and
been denied counsel, the accused has not been advised of right to remain silent, no statement elicited
can be used at trial.
The reach of Escobedo was unclearseemed to indicate that the court was leaning to
addressing right to be free from self-incrimination through an extension of the 6 th amendmentby
extending right to counsel to all parts of the investigation
However, Court took a different route in Miranda, instead opting to protect suspects through the
5th amendment
Case looked like Court was moving towards extending the 6th amendment to all interrogation and
making it the main basis for moderating police interrogation
Miranda kills the 6th amendment as an avenue for protecting suspects in the interrogation context
(opts instead for protections under a 5th amendment theory)
Step 3: Miranda

Court examined police manuals to determine what is happening in interrogations rooms because
it was believed that no one had access to interrogations rooms because observers were excluded
o Today the response iswhat about videotaping interrogation? Could suggest changes in
jurisprudence
In Miranda, court turned to the issue of psychological coercion
Raises question of whether Miranda alters due process analysis

Miranda: Procedures to protect privilege

Litigating in Miranda Regime

o Coercion
Custody level of restraint associated with a formal arrest
Interrogation Innis, Perkns
Warnings Florida v. Powell (2010); once have custody and interrogation, have
compulsion so must give Miranda warnings
If warnings not given, statements are inadmissible
Waiver Burbine
Invocations Davis, Mosley, Edwards, Shatzer (2010)
FOPT Seibert, Patane
o Testimony
73

o Incrimination
If have custody and planned interrogation, must give warnings
Once give warnings, suspect must waive or must invoke
o What counts as a waiver?
o If invoke, what are the next steps? Must all interrogation stop?
Warnings
Florida v. Powell speaks to adequacy of warnings
Police have adapted very well to Miranda
o When Miranda was reconsidered, many police amicus briefs supported keeping Miranda
suggests police prefer this to voluntariness test where would scrutinize closely whether
action was coercive
o because under Miranda, once give warnings, are good to go! basically per se satisfy
voluntariness test

Miranda v. Arizona The prosecution cannot use statements stemming from custodial interrogation of a
defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege
against self-incrimination, and a suspect gives a valid waiver of his constitutional rights.
Rather than pointing to specific facts of an unconstitutional interrogation, the facts examine police
interrogation practices in general. The court recognizes that since outsiders are excluded from the
interrogation room, it is not possible to examine the facts of a specific interrogation, and instead looks to
police manuals to determine interrogation techniques. The Court description suggests that though these
techniques are not violent, they are coercive. Specifically the court expresses concern over the use of
deception (false line-up), police providing mitigating explanations to suspects (legal and moral excuses),
police suggesting it is suspicious to invoke Constitutional rights, 4 good-cop/bad-cop, and the length of
time of interrogations.
The court finds that in order to obtain testimony from custodial interrogations, police must follow
strict procedural safeguards. The court argues that even without employing any of the strategies
listed above, custodial interrogation by its nature exacts a heavy toll on liberty and has a coercive
effect that may compel individuals not to exercise their 5 th amendment rights, and thus no
testimony obtained from a D can truly voluntary. Thus, the freedom from self-incrimination
extends to any period of custodial interrogation. While states are free to come up with more
effective protections for suspects rights, at a minimum police must inform suspects before a
custodial interrogation that 1) he has a right to remain silent, 2) anything he says can and will be
used against him in court, 3) right to an attorney, 4) if he cannot afford one, one will be provided.
If at any point during questioning a suspect manifests a desire to stop speaking, the interrogation
must stop; similarly if he manifests a desire for an attorney, the interrogation must stop until the
attorney arrives. This implies that no inquiry will be made into whether the suspect was already
aware of his rights. If interrogation continues in the absence of an attorney, a heavy burden rests
on the state in proving that an individual waived his rights; just because a warning was given
does not signal that any confession is therefore voluntary absent a valid waiver of the suspects
rights. Whether a voluntary waiver was given is a factual analysislengthy interrogation before a
statement was given, and any evidence of trickery suggest a lack of voluntariness. In spite of this
holding, purely voluntary confessions are still permissible.
Analysis is a sort of constitutional default analysisin the context of interrogation all elements
are present that are necessary to invoke 5th amendment protections; court argues that in the
absence of a better solution, at a minimum Miranda applies
The dissent criticizes the holding for lacking a sound basis in the text of the Constitution. One dissenter
also points out that a flaw inherent to the system developed by the court is that if one considers custodial
interrogation to be inherently coercive and thus involuntary, a suspect cannot voluntarily waive his rights
because his opportunity to waive his rights will also arise in a coercive context.

Miranda warnings
o Right to remain silent
74

Anything say can and will be used against you

Right to an attorney who can be present during the interrogation
If invoke right to attorney, one does not have to be provided, but if one is not
provided, the interrogation must stop
o If you cannot afford an attorney, one will be provided for you
Means of attaining a waiver
o Signed waiver (optimal)
o Oral waiver
o Silence/convalescence after a long period of time does not constitute a waiver
o No waiver- suspect invokes rights
In some ways, Miranda rights are clearly deficient
o Fail to say that silence/decision not to talk cannot be used against someone
o Does not explain what will happen if an individual invokes privilege
Miranda does not replace the voluntariness regime, but rather supplements it; after Miranda
suspects can claim
o A violation of their Miranda warning rights
o That confessions were not voluntary
Miranda raises the question of whether Miranda is also sound policy for military interrogation and
interrogation of suspected terrorists
o Hypothetically, if suspected terrorists are given the same Miranda rights, they may ask for
a lawyer soon after capture, and then be free from interrogation and ultimately
unconvictable
Raises the question of why terrorists are likely to respond differently than most
people
o Some concern that extending Miranda to terrorists results only in political
jockeying/vague abuses of the Constitution (e.g. branding suspected terrorists as enemy
combatants)
One of concerns in Miranda appears to be that police interrogation practices were something of a
mystery
o Some have suggested this could be remedied by video taping or audio taping
interrogations (as a substitute to reading suspect Miranda rights)
Would be a very difficult factual determination for jury to determine whether a
statement was then voluntary
***Concern in Miranda context is abou false confessions
White Dissent All the same factors that make police interrogation coercive apply to the question
of whether a suspect would like to waive his Miranda rightsshould this make it almost
impossible to show that Miranda rights were waived?
Court basis ruling partially on fact that FBI has used Miranda warnings effectively
o Raised questions about whether warnings were effective in FBI context because of
nuances/differences in types of crime investigated by the FBI (e.g. examine more white
collar crime where people already know rights)
o One of the accusations of many who disagree with the opinion is that the opinion reflects
judicial liberal judicial activism
However, the FBI at the time was not known for liberal/progressive investigative
techniques
Miranda did not completely replace the voluntariness requirement, the due process requirement
of voluntariness still applies to confessions
o Voluntary implies only freedom from coercion by police not private parties
Colorado v. Connelly suspects statements not found to be involuntary because
he was compelled to issue them by voices inside his head
o However, after a waiver police can use the psychologically coercive tactics that were
documented in the police manuals (as long as interrogation still voluntary)
Requirements for invoking 5th amendment protection
o
o

75

o
o

Compulsion
Custody
Interrogation
Testimony For which compulsion is cause in fact
Incrimination

Defining Custody (for 5th Amendment Purposes)

Custody the level of restraint associated with a formal arrest; is a totality of the circumstances
analysis, from the perspective of the suspect
o Satisfies Custody Requirements
Orozco v. Texas suspect questioned in his bedroom at 4am by 4 officers was in
custody
Any arrest (Berkemer v. McCarty)
Taken into station house and not free to terminate the encounter for an extended
period of time
o Fails Custody Requirements
Oregon v. Mathiason no custody when suspects voluntarily go to station house
and confesses
Terry stops do not satisfy the custody requirement (Berkemer v. McCarty)

Defining Interrogation (for 5th Amendment Purposes)

Interrogation
o Express questioning counts as interrogation
Exceptions
Booking Question Exception
Perkins Where direct questioning is not coercive person questioned
does not believe person who is asking questions has power over them
o The functional equivalent of express questioning counts as interrogation any words or
actions on the part of the police that the police should know are reasonably likely to elicit
an incriminating response from the suspect.
Muniz individual pulled over for drunk driving
o Nothing that occurred at the roadside was protecteddont need to give Miranda in tops
o Physical evidence not protected by Miranda (e.g. field sobriety tests)
o Considered in custody once taken to booking station
Booking question exception questions asked in the course of booking are not
considered interrogation for the purposes of Miranda

Rhode Island v. Innis Interrogation includes direct questioning and its functional equivalent any words
or actions by the police that the police should know are reasonably likely to elicit an incriminating
response from the suspect.
A taxi driver was shot and killed. A few days later a taxi cab driver was robbed at gunpoint in the same
area. When that driver went to the station to give a statement, he identified his assailant from a picture
on a bulletin board. While on patrol an officer spotted the suspect, arrested him, and advised him of his
Miranda rights. Soon the Sergeant arrived and gave the suspect his Miranda rights, then the Captain
arrived and gave him his Miranda rights. On the way back to the station one patrolman started a
conversation with another patrolman about there being a school nearby and his concern that a child might
find the gun and shoot herself. The suspect then volunteered to show them where the gun was and let
them right to it. The Court considers whether the evidence should be excluded because it was obtained
through an interrogation without a valid Miranda waiver.
The Court first recognizes that Miranda does not cover only direct questioningseveral of the
practices that evoked concern in Miranda did not include express questioning. The Court also
recognizes that interrogation must reflect a measure of compulsion above and beyond that
76

inherent to the custody because not all statements obtained by the police after a person has been
taken into custody can properly be considered interrogation. Accordingly, the Court holds that
the 5th amendment applies to direct questioning or its functional equivalent. Applying that
standard, the Court finds that the suspects 5th amendment rights were not violated because there
was no reason that the police should have known that their conversation was likely to elicit an
incriminating responsenothing in the record suggests that the officers were aware that the
respondent was peculiarly susceptible to an appeal to his conscience, and the conversation
consisted of merely a few offhand remarks.
Stevens dissents because he believes that to protect suspects rights, interrogation must include any
police conduct that has the same purpose or effect as direct questioning, and thus statements that appear
to be designed to call for a response should be considered interrogation. He believes this standard has
been met in this instance.

Test after Innis

o Interrogation is express questioning OR
o its functional equivalent words or actions by the police that the police should know are
reasonably likely to elicit an incriminating statement from a suspect
take perspective of the officer on what the suspects susceptibility would be
One explanation from perspective of innocent person creates no risk that
innocent person will incriminate selfsuggests loose application of test for
indirect questioning
Explanation 2 This is not an activity that police could use again footnote
suggests it is persuasive that remarks werent designed to elicit a response; next
time, officers should know it is reasonably likely to elicit a response
o Lesson tricks and coercion are different things; suggest not worried about trickery, but
worried about compulsion; suggest give wide discretion to police using trickery
Seems to reject reasoning of Miranda! Miranda was about trickery
Innis facts (details) very important in finding did not amount to interrogation; if facts different
(conversation longer, police intent different) might have been interrogation
o Suggests not worried about trickery, worried about coercion
Functional equivalent
o Idea is that direct questioning is coercive
o In looking for functional equivalent look for something that is equivalently coercive
Test as applied in Innis case:
o Cops just talking to each other (clearly no direct questioning)
o Conversation did not last long
If police listen in on a conversation between a husband and a wife after telling them that the
conversation will be recorded, the evidence obtained will not be considered to have been
obtained by interrogation
Line between coercion and deception - worried about coercion, not about trickery
o In Miranda we were worried about deception, but today are comfortable with lots of
deception
o Must consider whether there are some forms of deception border on coercion

Illinois v. Perkins Miranda warnings are not required when a suspect is unaware he is speaking to a law
enforcement officer (when concern about coercion is absent); questioning by an undercover officer does
not count as interrogation.
The police received a tip on an unsolved murder from an inmate at a correctional facility who heard the
account from his cell mate. The police than insert an undercover agent into the cell block with the
suspect. While planning an escape, the undercover officer baited the suspect into telling him about the
murder.

77

The Court finds that the statements were voluntary, and thus can be admitted at trial. The Court
argues that conversations with undercover agents do not implicate the concerns of Mirandathat
statements will be coercively obtained because the statements do not take place in a policedominated atmosphere. The Court argues that when a suspects considers himself in the
company of cellmates, a coercive atmosphere is lacking, and thus the danger of coercion
subsides.
Concurrence agrees that the questioning did not violate the Miranda requirements, but expresses
concern that the deception may have violated due process. He argues that deliberate deception
appears to be incompatible with a system that presumes innocence and assures that a conviction
will not be obtained by inquisitorial means.
Dissent argues that Miranda was not intended to deal merely with police coercion, but any police tactics
that may operate to compel a suspect to make incriminating statements without awareness of his
constitutional rights. Dissent argues further that compulsion can be achieved by any police deception,
and also argues that a jail is an inherently coercive environment because of fear of other inmates.

Illinois v. Perkins
o He has 4th, 5th, and 6th amendment objection
4th No go under White; informant is not a search
US v. White conversations with undercover agents (even those wearing
wires) are not searches
If Perkins had come out differently, undercovers would have been totally
permitted before arrest, but almost totally prohibited afterwards;
potentially there is no great reason to draw this line
5th Claim is that was under custody and was interrogated (direct questioning)
6th Places some constraints on this use of undercover agents; 6 th amendment
right to counsel protects from police eliciting information for crimes with which
one has already been charged
o 5th Amendment State Argument
Not in Custody, he is at home; thus this is not Miranda coercive custodial
environment
Even if Custody, doesnt count because is not type of coercion Miranda had in
mindhad no reason to think people he was talking to had power over him
o Suggests that a lot of Miranda is dicta
In certain situations the use of undercovers to get information from defendants in custody runs
into 6th amendment problems
o Arizona v. Fulminante Undercover offered to protect a guy in jail from assault from other
inmates if the informant would tell him what happened in a rumored murder
Perkins suggests that trickery is an appropriate means of obtaining incriminating statementsis
that the right signal to send?
o Concern police may use deceptive tactics to avoid Mirandas restrictions
o Police may mislead a suspect in an effort to induce him to waive Miranda rights
Pennsylvania v. Muniz
o Muniz was arrested for drunk driving and taken back to the station house where was
asked a series of questions during booking
o He sought to have answers suppressed
o Routine booking exception to Miranda questions used to secure the biographical data
necessary to complete booking or pretrial services are not subject to suppression under
Miranda

What Constitutes a Valid Miranda Warning?

Adequacy of Warnings
o Best thing is to give language tracking text of Miranda itself

78

Florida v. Powell
Miranda says must say have the right to consult with lawyer and have right to
have lawyer with you during interrogation
Powell you have the right to talk to a lawyer before answering any of our
questions and you have the right to use any of these rights at any point durint the
interview
Claim language did not explain made clear that had right to have lawyer sit with
him
Court When take common-sense approach, clear that should have understood
warning

What Constitutes a Valid Waiver?

Davis v. United States Invocation of Miranda Rights must be unequivocal; if suspect says
something equivocal (e.g. Maybe I should talk to a lawyer) about invocation of right to silence or
counsel, doesnt count
o Before interrogation waives Miranda rights
o 1.5 hours into interview he says Maybe I should talk to a lawyer
o Officers ask him for clarificationask if he is asking for a lawyer, or merely commenting
on a lawyer
o He says he doesnt want a lawyer
o Later says I want a lawyer, and questioning ceases
The text of Miranda shows consistent concern about the waiverthe opinion suggests that
nobody will waive her rights
However, waivers are extremely commona study suggests that only 21% of people invoke their
Miranda rights
If no Miranda warning has been given, an individual cannot waive her Miranda rights
Language of Miranda Warnings
o Courts have been flexible with language of Miranda warnings
o As long as all 4 parts are conveyed, and the police make no attempt to mislead a
suspect, Miranda warnings likely to be sufficient
If an individual invokes his right to an attorney, Miranda does not require the suspect be given a
right to an attorney immediately, but requires rather that the police stop questioning the individual
Discrepancy between Davis and Powellpolice can say whatever and it counts as a valid
warning; people have to same exact magic words to invoke rights
o Means people who invoke Miranda (who know how to invoke Miranda) are going to be
people who didnt need Miranda to begin with criminals, or people with legal
representation
o Consider in equivocal analysis
Timing (how soon after Miranda warning, where lawyer comment comes in
relation to waiver)

Invocations

Effect of Invocations
o In order to invoke, must be unequivocal
o Invoke Right to Silence Mosley; police must scrupulously honor that right
o Invoke Right to Counsel Edwards replaced by Shatzer
Cannot question you unless you re-initiate unless they have released you for 2
weeks into you own environment (whether that be jail or freedom)

Michigan v. Mosley Mosley was arrested, briefly interrogated, and then invoked right to remain silent.
Later a different officer advised him of his rights, obtained a waiver from him, and secured information
from him about a different crime. The Court found no violation of his rights.

79

Miranda cannot sensibly be read to create a per se proscription of indefinite duration upon any
further questioning by any police officer on any subject, once the person in custody has indicated
a desire to remain silent. Whether statements obtained after a person in custody has invoked his
right to remain silent depends on whether his right to cut of questioning was scrupulously
honored. In this case, the suspects rights were honored because the subsequent questioning
was about a different crime, and occurred at a different time, and thus was consistent with
Mosleys earlier refusal to answer questions about the first crime.
Edwards v. Arizona Once an accused has invoked the right to counsel, a waiver cannot be established
by showing the suspect responded to further interrogation; one an accused expresses desire for an
attorney, he cannot be subject to any further interrogation until counsel has been made available.
Suspect was arrested given his Miranda rights. After being told that another suspect had implicated him,
Edwards expressed a desire to make a deal. He then invoked his right to counsel. The next morning two
detectives shows up to speak with Edwards. The guard told Edwards that he had to talk to the
detectives, even though Edwards expressed a desire not to talk to anyone. The officers then read
Edwards his Miranda rights, and he agreed to talk to the police, as long as the conversation was not
recorded. Edwards claims that his testimony should be excluded because having invoked his right to
counsel, he did not validly waive the right.
The Court holds that when an accused has invoked his right to counsel, a valid wavier cannot be
established by a showing that the individual responded to further police-initiated custodial
interrogation, even if he is again advised of his rights; the Court further holds that an accused
who expresses a desire for counsel cannot be subject to any further interrogation until counsel
has been made available, unless the accused initiates the communication.

After Edwards and Mosley, invocation of the right to counsel gets greater protection than
invocation of right to remain silent
Edwards holds that when a suspect in custody invokes the right to counsel, the police cannot
initiate further questioning
o Meaning of initiating question (Oregon v. Bradshaw)
Police officer did not initiate further questioning when conversation followed
suspect asking police what would happen to him because suspects question
evinced a willingness and desire for discussion with police
Dissent contests that question suggested a general willingness to have a
conversation with the police
After Edwards, the definition of invokes is also particularly important because after an individual
invokes, the police may have no further opportunity to question him
o Davis v. United States If a suspect makes a reference to an attorney that is ambiguous
or equivocal in that a reasonable officer in light of the circumstances would have
understood only that the suspect might be invoking, precedent do not require the
cessation of question. The suspect must umambiguously invoke to get Miranda
protections
Smith v. Illinois an accuseds response to further interrogation after his request
for counsel cannot be used to cast doubt on the clarity of the initial invocation
Once invoke unambiguously, all questioning must stop
Concern of Dissent some Ds may respond hesitantly so that the only invocation
they will/could ever give is tentative Davis effectively means these people are
forced to be talked to the police, but Edwards was designed to prevent that result
o Connecticut v. Barrett suspects refusal to make a written statement without counsel
present did not amount to a generalized assertion of counsel sufficient to count as
invoking
Minnick v. Mississippi If suspect invokes, is allowed to consult counsel, and this is interrogated,
this violates Edwards
o Once an individual has invoked, individual must have counsel with him at any future
questioning
80

Roberson suggests that when invoke right to counsel, right stands even if are questioned for a
different crime
o Minnick says right stands even after D has seen a lawyer
o Does that mean that invocation is good until the suspect is released from prison years
later?
Absolute nature of Edwards, Roberson, and Minnick give police officers a strong incentive to
avoid invocations
o Presumably coercive questioning tactics that ratchet up pressure are more likely to lead
to invocations
o Thus these cases presumably pushes police towards less coercion
However, this would seem to hold true only if people invoke Miranda rights, while
in fact 79% of time people do not invoke.

Waivers without Invocation

While Miranda majority indicated that the State would have to meet a heavy burden to
demonstrate waiver, subsequent decisions have lightened the load considerably
o North Carolina v. Butler Individual refused to sign waiver form, but agreed to talk with
officers; Court found Miranda waiver valid
In at least some cases waiver can be clearly inferred from the actions and words
of the person interrogated
o Colorado v. Spring Waiver valid even if defendant not apprised of every alleged crime
with respect to which police intended to interrogate him once Miranda warnings are
given it is difficult to see how official silence could cause a suspect to misunderstand his
constitutional rights
There is some question of whether it matters to a waiver whether the suspect is already
represented by counsel
o In NY police cannot approach a suspect (and thus he cannot waive) if the police know
that the suspect is represented by counsel

Moran v. Burbine
Police arrested D in connection with a local burglary. Shortly before the arrest the police learned the
name and address of a man who committed a previous murder. The police realized that this individual
had been arrested in connection with this burglary. Accordingly, the police read the individual his Miranda
rights. Meanwhile, Ds sister called the public defenders office and the PDO called the police to inquire
about when D would be interrogated and to alert the police that D was represented by counsel. The PDO
was told that D would not be interrogated until the next day. Later that evening D was interrogated and
confessed. D then moved to exclude evidence of the confessions because the police misinformed the
attorney or because the police failed to inform the suspect of the attorneys efforts to reach him.
The Court finds that D validly waived his Miranda rights. The Court holds that a waiver requires
that 1) that an individual voluntarily waived his rights, and 2) that the waiver must have been made
with a full awareness of both the nature of the right being abandoned and the consequences of
the decision to abandon it. Applying this standard, the Court argues that D waived his rights. The
Court holds further that once it is determined that a suspects decision to waive was un-coerced
and that he was aware of his rights, the analysis is complete and the waiver is valid. The Court
argues that events that occurred outside of the presence of D can have had no impact on his
ability to comprehend and knowingly relinquish his constitutional rights. The Court holds further
that deliberate or reckless withholding of information is only relevant to the constitutional validity
of a waiver if it deprives D of knowledge essential to his ability to understand the nature of his
rights and the consequences of abandoning them. The Court argues further that Miranda
warnings are intended to protect an individuals right against self-incrimination, not to prevent all
police trickery, and thus the Court declines to extend Miranda to require the police to notify Ds of
an attorneys attempt to reach him. The Court argues that Miranda was intended as a balance
between protecting against the innately coercive environment of the interrogation room and the
81

need for police questioning as a tool for effective enforcement. The Court recognizes that on
facts more egregious police deception can on some instances rise to the level of due process.
The Dissent argues first that the burden of showing a valid waiver rests on the government; the dissent
argues next that Miranda was intended to protect against deceptive misstatements by the police, and it is
not possible to distinguish between these deceptive misstatements and the concealment that occurred in
this instance. The dissent argues that the balancing approach applied by the majority is erroneous
because that balance would justify a rejection of warning about the right to counsel and because the
majority incorrectly applied the testthe balance on the side of the suspect should be (had previously
been) weighed as the individual interest in liberty threatened by deceptive practices. The dissent argues
further that under ordinary agency law, the deception of the attorney was akin to deception of her client,
and ordinarily Ds are entitled to truthful answers from the police, and thus D should be entitled to the
remedy he would have if he had been lied to directly. The dissent also criticizes the majority for
suggesting that the police have the authority to deny counsel the ability to see their clients.

The burden of establishing a valid waiver depends on two factors:

o The waiver standard
o The burden of persuasion
Colorado v. Connelly Court held that the state need only prove waiver by a
preponderance of the evidence
Stevens dissent in Moran seems to assuming that lying to the suspect himself would be
impermissible, but perkins plainly permitted lying to the suspect
Relationship between police deception and Miranda waivers is complex
o Miller v. Fenton valid Miranda waiver when detecting assumed a friendly and
understanding tone throughout the interrogation and repeatedly assured the suspect that
he was sympathetic to him and wanted to help him unburden his mind
Detecting also gave certain factual information which was untrue (that victim was
still alive)
Theme throughout interrogation was that whoever committed crimes needed help
Moran Court found that waiver was made knowing and intelligentlyanalysis may depend on
how define those words
o Could argue that no police station confessions are knowing or intelligent in the ordinary
sense of those words because a well-informed suspect would almost certainly keep quiet
Some have argued that suspects should be given a nonwaivable right to consult counsel before
questioning takes place because this is the only way to prevent waivers based on ignorance
If a suspects invokes the right to counsel, but then re-initiates conversation with the police, the
same waiver standard applies as that listed in Moran
There are now essentially two Miranda standards
o Edwards Standard After Invocation, a waiver is impermissible
o If no invocation and Miranda has been given, waiver standard leans in favor of police

Remedies for Miranda Waivers (FOPT)

Overview
Not properly considered FOPT cases do not analyze under FOPT (Breyer wants to, but nobody
else)
o
Miranda warnings are not constitutional rights, they are procedural safeguards intended to protect
constitutional rights
o Thus can violate Miranda (and that is a violation of Miranda), but that is not a violation of
the 5th amendment
o The warnings provide more protection than Constitution
o Maybe that there can be a violation of Miranda that does not violate Constitution
82

Process for remedies for Miranda issues

o Were Miranda warnings given?
o If no Miranda
Statements are fruit of poisonous tree and must be excluded
Consider whether statements were violation of 5th amendment
if initial statements were voluntary, then dont lose stuff downstream
If initial statements were not voluntary (violate 5 th amendment), then lose
downstream evidence
It is not obvious how this fits with Seibert and Patane; these cases suggest that
more might play into the calculusmight also consider whether evidence is
physical evidence or testimonial evidence; might also consider whether Miranda
warnings could have been effective, etc.
Elstad
o Cops go to Elstads house to arrest for burglary
o Cop asks Elstad question, have quick exchange, and kid implicates himself
This is a violation
o Take kid to station, give him warnings, kid confesses
S Ct decides unwarned statement must be excluded, but subsequent statement
there is no violation
Seibert
o Wont apply traditional FOPT
o Dont just suppress unwarned statement as Elstad suggests, but in some situations will
also suppress downstream evidence
In determining whether to suppress downstream statements, consider whether
Miranda warnings were fully effective
Patane
o Similar to Seibert except downstream evidence was physical fruit
o Statements must be suppressed, what about downstream physical evidence
Would meet FOPT requirements (not attenuated)
Physical fruit not suppressed 5th amendment designed to protect against
testimonial evidence, not physical evidence
o Seems to create perverse incentives that were attempting to shut down in Seibertpolice
dont need statements if can get physical evidence

Missouri v. Seibert
Ds son had cerebral palsy and died. D feared charges of neglect because the child had bedsores on his
body. D then plotted to burn down her house so that police would not find out. She planned to leave a
mentally ill teenager in the house to avoid any appearance that her son with cerebral palsy had been left
unattended. Several days after the incident police awoke D at the hospital and questioned her without
giving her Miranda warnings. She confessed. She was then given Miranda warnings; the officer
obtained a waiver and a confession from her. The trial court declined to suppress the post-warnings
statements because by that point the warning had been given. The Supreme Court of Missouri reversed.
The Court concludes that the second statements should be suppressed. The Court holds that in
cases of sequential confession, the threshold question is whether in the circumstances the
Miranda warnings could reasonably be found effectivei.e. could the warnings effectively advise
the suspect that he had a real choice? And could the warnings reasonably convey that the
suspect could choose to stop talking even if he had talked earlier? If yes, then the Miranda
analysis precedes normally, but otherwise the evidence must be excluded. The Court argues that
the justification for this ruling is that a suspect could hardly believe his Miranda warnings if they
were given to him just after making a confession. This inquiry is highly fact bound, it will include
at leastthe completeness and detail of the first round of questioning, the overlapping content of
the two statements, the timing and setting of the first and second questioning, the continuity of
83

police personnel, and the degree to which the police treated the questioning as continuous. In
this case, the Miranda warnings could not be effective because the questioning was continuous
and the police did not advise the woman that her statement coiuld not be used (though this
statement would not be dispositive).
Breyer Rule should be that exclude the fruits of initial unwarned questioning unless failure
was in good faith
Kennedy Whether Miranda should be enforced depends on a consideration of whether
suppressing evidence would serve the legitimate interests promoted by Miranda and whether
admission of evidence would frustrate Mirandas central concerns and objectives. The implication
of this is that statements should not be excluded if the statement given before the Miranda
warning was brief. In this case, the Miranda objectives are serveddeterring improper police
conduct and the Fifth Amendment goal of assuring trustworthy evidence.
Suggests that should conduct ordinary FOPT analysisif the first statement is shown to be involuntary,
the court must examine whether the taint dissipated through the passing of time or through changed
circumstances.
United States v. Patane Physical evidence obtained from unwarned testimony is admissible at trial.
D was arrested for harassing his ex girlfriend; he was then let out and violated his restraining order by
trying to call her. When officers began to investigate, they learned from the ATF that D was a convicted
felon with a firearm. Detectives then went to Ds residence. They attempted to advise him of his rights,
but he cut them off. They asked him about the gun, and he eventually told them where it was. D then
moved to suppress the physical evidence on the basis that it was the fruit of an unwarned search.
The Court holds that a failure to give Miranda warnings does not necessitate the exclusion of
physical evidence at trial. The Court argues that the Miranda warnings are not Constitutionally
required, but rather are a means of protecting against the 5 th amendment right against self
incrimination; however the right of self incrimination does not suggest the exclusion of nontestimonial evidence obtained as a result of voluntary statements. The Court argues further that
because the Miranda rules sweep beyond the requirements of the Constitution, any further
extension of the rules must be justified by the protection against compelled self-incrimination.
The Court argues that an extension of the rule is not justified here because police conduct
violating Miranda is already deterred by the suppression of testimonial evidence.
Kennedy Exclusion of physical evidence cannot be justified by a deterrence rationale sensitive
to both law enforcement interests and a suspects right during in-custody interrogation.
Admission of non-testimonial physical fruits does not run the risk of admitting into trial an
accuseds coerced incriminating statements and thus is not required by the 5 th amendment.
Dissent expresses concern about the need for deterrence that would justify FOPT for physical evidence
obtained from statements made without a Miranda waiver. The Court suggests that failing to suppress
physical evidence will give officers an incentive to ignore the Miranda warnings when they think that they
may uncover physical evidence. The dissent argues that the 5th amendment does protect against
admission of this evidence because a Miranda violation raises a presumption of coercion, and the 5 th
Amendment privilege against compelled self-incrimination extends to derivative evidence.
Breyer Thinks that FOPT standard for derivative physical evidence should hinge on whether evidence
was collected in good faith.

Kennedys position
o In Seibert finds statements inadmissible because the Miranda violation was intentional
and the police took no steps to cure it
o Patane position harder to understand; adopts pluralitys rule, but seemingly without the
pluralitys rationale (recognizes less importance for physical evidence)
o Unclear how Kennedy would vote in a case that involved an intentional violation and
physical evidence

84