Administration of Criminal Justice I Outline

Tuesday, January 31, 2012

12:07 PM

Structure of Criminal Justice

Investigation (suspect)
Search (4th)
Identification (14th, 6th)
Interrogation (5th)
Arrest (seizure- 4th amendment)
Search incident to arrest
can be with a Warrant (arrest)
or Warrantless
Initial Appearance
Informed of charges
Bail
Pleas - 48 hours after
Informed of Rights (Miranda)/process
Can lead to Preliminary Hearing or Grand Jury
Determination of probable cause or information
Pretrial Motions
Motion to suppress evidence (4th, 6th, 14th and statutes)
Jackson v. Denno - hearing
Incompetent to stand trial
Insanity
Motion to Quash
Motion to Dismiss
Trial
Sentencing
Appeal
Arraignment
Pleas - within 48 hours
Post conviction:
Habeas corpus - Smith v. Cain
THE EXCLUSIONARY SANCTION
Exclusionary Rules
Mapp v. Ohio
Case Notes from Mapp
Fourth Amendment - secure in their persons, houses, papers and effects
Constitutional Violations of this case
Police entered home with no warrant (blank piece of paper)
Police claimed that they were looking for two different things that ranged sizes from huge
to small
Who regulates the search area as it is occurring? The resident. She was handcuffed and
not able to.
Right to counsel
Entitled to see a copy of the warrant
Forcibly entering the home (5th Amendment)
Prior Decisions
Weeks v. United States- created exclusionary rule for federal cases - warrantless searches
violate 4th amendment. is it a rule of constitutional law or evidence?
Wolf v. Colorado - the 4th amendment (unreasonable search or seizure) applies to states,
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 Wolf v. Colorado - the 4th amendment (unreasonable search or seizure) applies to states,
but the weeks rule (exclusionary rule) does not
Mapp v. Ohio - broadened the Weeks rule (warrantless searches) to states
Reasoning - the Weeks rule applies to State + Federal
The fourth amendment is for judges, they are the ones who are issuing warrants
Functions as a deterrent to dishonest police works
Creates certainty as to police procedure
Book Notes from Mapp
Exclusionary Sanctions for 5th and 6th Amendments
Exclusionary rule applies to the 4th, 5th, and 6th Amendments
Judicial Integrity
Courts can admit evidence that is in violation of the 4th Amendment
Based on whether the admission of the evidence encourages violations of the 4th
Amendment and whether it would serve a deterrent function
Remedial Function
The exclusionary rule is not a personal constitutional right
The exclusionary rule prevents violation of constitutional rights by deterring police
officers from violating rights and by encouraging the development of practical guidelines
and training programs. This is known as systematic prevention (Stone v. Powell).
Other Uses of Unconstitutionally Obtained Evidence
Evidence obtained in violation of constitutional rights can be used at parole hearings
(Pennsylvania Board of Probation and Parole v. Scott)
Exclusionary rule does not apply before a grand jury (Calandra)
Defendants cannot seek habeas corpus relief unless they were not given full and fair
litigation.
Nonconstitutional Illegality
There is no federal or state constitutional right to have evidence excluded because of a
statutory violation
United States v. Leon
Class Notes from Leon
What was procedure before Leon? Magistrate can grant warrant by enough probable cause, or
if not enough probable cause the officer continues to investigate until he has enough
Established that evidence obtained in good faith by police relying upon a search warrant
that subsequently is found to be deficient may be used in a criminal trial.
Exceptions to relying on good faith
Officer misleads the magistrate
Rubber stamp judge - a judge who does not review the material and always approves
Affidavit is so lacking in probable cause as to render official belief in its existence
Warrant is facially deficient
Objective test - a reasonably well trained officer
What do we take away from Leon and Mapp?
There is a balancing act between costs of deterrence and the benefits of providing
due process rights (McGough says this balance is the most important thing to take from
Leon)
Leon and the cases that happen post-Mapp are narrowing the broad rule of Mapp.
The narrowing has led to a move away from a pure application of the 4th
Amendment to the states, and allows them to introduce evidence despite an illegal
or improper method of acquiring it.
Is a police officer thinking he has probable cause permissible?
No - the question is is there probable cause or not?
The magistrate decides, not the reasonably well-trained officer
Can a warrant be authorized by an invalid statute (Krull)?
Good faith rule - would an officer have realized that the statute was unconstitutional?
Krull (good faith exception is extended to warrantless searches made pursuant to an
invalid statute) is much more significant than Leon
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invalid statute) is much more significant than Leon

Evidence was admissible because officer relied in good faith on the statute
Umbrella of who falls under 4th Amendment
Court clerks
Legislatures
Judges
Police officers who conduct investigation- Footnote 7 in Leon
Police officers execute search or arrest- Footnote 7 in Leon
Law enforcement team
Book Notes from Leon
In Re Gault? - proceedings for juveniles had to comply with the requirements of the Fourteenth
Amendment
Not the direct authority providing for the rule, but exclusionary rule does apply in a
delinquency action
Herring v. United States- Have a note that a warrant exists but it does not? Exclusionary rule
does not apply
Unreasonable Reliance on Defective Search Warrant
Groh v. Sheppard
In Groh, the officer mistakenly inserted a description of the premises to be search
instead of the description of the person or property to be seized
In Sheppard, the court allowed evidence to be admitted that was a result of a search
conducted with an inadequate warrant. The judge made the mistake, but led the
officer to believe the warrant was valid. The officer reasonably believed it was
valid - evidence could be seized
The difference here is the reasonable officer standard - a reasonable officer should
know that if there is nothing listed it is invalid; however, if the wrong thing is listed
a reasonable officer could not catch the mistake. ?
Warrantless Activity Authorized by Invalid Statute
In Krull warrantless searches done pursuant to an invalid statute is admissible if the
officer truly believes the statute is good law. Good Faith.
The difference between Leon and Krull is that one is geared towards judicial
officers while the other is geared towards legislators.
Mistaken Perception that Valid Warrant Exists
Arizona v. Evans - The officer thought there was a valid search warrant, because he
looked at his computer in his squad car and saw that there was a warrant. A court clerk,
however, failed to pull the warrant down from the system. The evidence was allowed to
stay because of good faith; court clerks are treated like judges
Inevitable Discovery Exception
If the evidence would have been discovered without the violation of constitutional rights,
it is admissible (Nix v. Williams).
Nix v. Williams - They found a body due to illegally obtained information, but there was a
search with 200 people going on in that area. The body would have been discovered
eventually. Evidence was admitted.
Louisiana Declaration of Rights
Section 5 is basically the 4th Amendment
Differences:
Section 5 is more extensive than 4th amendment - we should expect more protection from
the LA Section 5
adversely affected addition
US Constitution - only the person affected can bring the claim
LA Dec of Rights - any person adversely affected can bring the claim
Section 13 is the Miranda Rights
What if Miranda rights were overturned tomorrow? - Big whoop. LA would provide more
rights
The Louisiana Supreme Court is the ultimate authority on State Law rights - The state
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 The Louisiana Supreme Court is the ultimate authority on State Law rights - The state
can not take away rights granted to you by the US Supreme Court but it can grant you
additional rights
Section 16 is the 5th Amendment and 6th
Louisiana Cases
Longlois and Bickham deal with statutory violations and exclusionary rules
These cases go different ways
Longlois goes with the exclusionary rule
Bickham goes against the exclusionary rule
Why the split?
The Bickham statute that was violated is merely a procedural rule to divide responsibility
among the officers
However, Longlois dealt with the officers express powers of arrest
Matheiu - similar to Bickham, this was a procedural rule and the exclusionary rule was not used
The important thing to take away from these cases is to look at the purpose of the statute and
determine if the exclusion should apply
Varnado - Good Faith exception is used in Louisiana
Scope of Exclusionary Sanctions
Wong Sun v. United States
Case Notes from Wong Sun
Facts
Hom Way
Authorities watched Way for six weeks, arrested him and found heroin
No search warrant, no exigency, probable cause existed => all evidence from
Way leading to Toy is fruit of the poisonous tree
Way became an informant and confessed that he bought heroin from "Blackie Toy"
Toys Laundromat
Agents went to Toy's laundromat and asked for laundry... Toy said they were
closed... agent showed badge and Toy ran into his home
Agents broke open Toy's door, Toy reached into dresser and Agent pulled out gun
and handcuffed him
Agents searched the premises and dresser and did not find any physical evidence
Toy was questioned and told the officers that someone named "Johnny" was selling
heroin and provided a description of the house
Poisonous tree here - no warrant, no probable cause, no exigency
Yees house
Agents entered home and found Johnny Yee. Yee surrendered less than an ounce
heroin and said it was sold by Toy and "Sea Dog"
Another poisonous tree here - no warrant, no probable cause, no exigency
Suns (Sea Dog) House
Toy was questioned and said that Sea Dog was Sun
Agents knocked on Sun's door, revealed themselves to his wife, wife locates Sun
and they search the house. No drugs found again.
Another poisonous tree
Agent interrogated Toy, Yee, and Sun separately and then released under their own
recognizance
Gave statements after they were released
Proof of the possession was over four inadmissible items (potential fruit):
Statements made by Toy at the time of his arrest
Heroin surrendered by Yee
Toy's unsigned statement
Sun's unsigned statement
Diagram From Class

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 Holding
COA found that there was not probable cause for Toy's arrest, the Supreme Court affirms
Toy's statements cannot be used as evidence
The heroin from Yee cannot be used
Toy's unsigned statement cannot be used
Sun's unsigned statement can be used and the heroin can be used against him
Reasoning
Toy's statements were the product (even intangible) of unwarranted search
4th amendment protects against seizure of tangible and intangible things
Same for Yee's heroin
The police only got to Yee through violating the rights of Toy
Toy's unsigned statements would require extrinsic corroboration and an out of court
declaration made after arrest may not be used at trial against one of the declarant's
partners in crime
Two Rules of Evidence for Statements
An accuseds statements have to be corroborated
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 An accuseds statements have to be corroborated

A statement made by a co-conspirator against another co-conspirator is not
admissible after the conspiracy
Fiswisk v. United States (329 U.S. 211): while such a statement is admissible
against the others where it is in furtherance of the criminal undertaking all
such responsibility is at an end when the conspiracy ends.
Sun's statement was voluntary and detached enough from the illegal arrest
The taint was attenuated
New York v. Harris- the taint ends once the person leaves their home and gets
on a public street
The heroin can be used against Sun because the evidence was a violation of Yee's rights,
not Sun's
Remanded because the court was worried the judge took into account the statement of Yee
What is a poisonous tree to one person is not a poisonous tree to another person
BIG FISH LITTLE FISH- violate the little fish and get the big fish
Need an arrest warrant if arrested in your house, if you are on the street you dont need a
warrant
Book Notes from Wong Sun
Wong Sun did not have standing and Toy did
This means that Wong Sun cannot push for the exclusionary rule if his 4th Amendment
rights were not violated.
In this case, Toys 4th Amendment rights were violated, therefore, he can invoke the
exclusionary rule, but Wong Sun cant
Fruit of the Poisonous Tree
Once a defendant establishes a violation of his constitutional rights, he is entitled to
suppression of all fruit of that poisonous tree
Aka- Derivative Rule
A defendant seeking to invoke the fruits doctrine must establish that the challenged
evidence was obtained by police as a factual result of a violation of his rights
Evidence obtained before a violation is not subject to challenge
In Murray the police entered a warehouse and saw weed, then they went and got a
warrant and never said anything about the weed that they have previously seen. The
Supreme Court said that the two searches were independent and the evidence could not
be excluded. Confirming searches are not allowed if the search is used to get the
warrant - if they would have gotten the warrant anyway, it would be independent and
allowed (can not run tainted evidence through the system and use it. Does not matter if
the magistrate knows the evidence is tainted)
Limits to the Fruit Doctrine
Not all evidence that results from a constitutional rights violation has to be suppressed
If the police have a justification to question a suspect, any statement he makes after
an unlawful arrest is admissible in court
If evidence is obtained by police after a violation of a defendants rights, but not as a
consequence of that violation, its is said to be an independent source and it is admissible
Physical presence cannot be excluded from evidence
Attenuation of the Taint
Fruit of the poisonous tree is admissible if the taint of the violation is attenuated
Testimony of Witness as Excludable Fruit
Ceccolini
The Supreme Court ruled that testimony given by the witness was an act of her own
free will in no way coerced or even induced by official authority
He did not intentionally find the evidence, just a causal relationship between him
finding the evidence and the eventual
Exceptions to Exclusionary Requirements
Attenuation of Taint
Independent Source
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 Independent Source
Impeachment of Testifying Defendant- evidence acquired in violation of 4th Amendment
rights can be used to impeach the defendants credibility
How do we suppress evidence?
Motion to suppress based on 4th amendment violation
Defendant has the burden of proof of the violation
Defendant has to prove standing (personal violation)
How do you Dissipate the taint: (Dissipation) - who bears the burden of proof of
dissipation? We think it is State... recent cases suggest that it may be defendant p36
middle of page
Independent source
Live witness/ free will
Attenuation
Inevitable discovery
Rakas v. Illinois
Case Notes from Rakas
Facts
Police got radio call about store robbery and description of getaway car
Officer spotted similar car and followed until he stopped it
The petitioners were not the owner of the car, just passengers
Petitioners and two others were ordered out of car and car was searched
Police found shotgun and shells in the car
Petitioners were arrested
Procedure
Rakas moved to suppress rifle and shells on violation of 4th and 14th
Trial court said that they did not have standing and dismissed
Appelate affirmed because the car did not belong to the petitioners and they had no
standing
Whether the challenged search violated the fourth amendment rights of a criminal defendant
who seeks to exclude the evidence obtained
The Supreme Court said that the search did not violate the rights of the defendants
Arguments
Rakas says that it is similar to Jones v. United States (defendant was given a key to
friend's apartment while he was gone and was searched; court said anyone legitimately on
premises where a search occurs may challenge its legality)
Reasoning
Jones rule is too broad
Dissenting judge says that we are abandoning a bright line rule for less certain
analysis
Where do we draw the line?
Have to show that you have a reasonable expectation of privacy
The Jones rule is not determinative of whether there was a legitimate expectation of
privacy in the areas of the automobile searched
Dissent
The Jones rule makes unquestionable sense
When sharing a private place with other people, they should expect that police will
intrude only with consent or with a warrant
To base the rule off of a possessory interest is absurd
Allows police to engage in bad faith searches involving more than one person
Class Notes from Rakas
The Supreme Court is dodging the issue of probable cause to stop the car
State v. Jackson - person who steals vehicle does not have standing to challenge
You can have searches within searches - ex) if a briefcase was inside the car, there would be
two searches
Lawful seizures need probable cause, sometimes things provide probable cause (illegally
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 Lawful seizures need probable cause, sometimes things provide probable cause (illegally
possessed items) on their face
Book Notes from Rakas
Privacy in Premises
Minnesota v. Olson
Olson had a similar case to Jones, however, he was not there by himself; he was a
guest of the owners.
An overnight guest is enough to show an expectation of privacy
Minnesota v. Carter - The defendants rented used a room to make cocaine and paid the
owner in cocaine
The court ruled that there is a difference between someone's home and place of
business
Guests present for a business transaction were not given the privacy exception.
New York v. Berger - commercial properties are given less protection than residences
O'Conner v. Ortega - worker can claim protection over a workspace (i.e. private office)
Use of a Place for Storage
Rawlings v. Kentucky
You have to reasonably expect the storage place would be free from governmental
intrusion
The defendant has the burden of proof
Standing for Challenging stops
Brendlin v. California - a passenger is seized and has standing to contest to a automobile
stop when a reasonable person would feel free to decline the officer's requests or
otherwise terminate the encounter with the officer
Louisiana Cases
State v. Cullota
Adversely affected- In Louisiana, any person adversely affected by a search or seizure
conducted in violation of this Section shall have standing to raise its illegality in the
appropriate court (Article 1 Section 5)
Facts
Police are watching a house, see people leave and pull them over
Police search the car and find drugs. Driver and passenger give statement of where they
bought the drugs from. Cullota was arrested.
The drugs were the product of an illegal arrest
The statement is not immune from exclusion because it is regarded as fruit of the
illegal arrest
Both fruits cannot be used against driver and passenger
Reasoning
Through Article 1, Section 5 - the evidence cannot be used against Cullota
CONSTITUTIONAL DOCTRINES RELATING TO LAW ENFORCEMENT CONDUCT
Scope of the Basic Doctrines
Schmerber v. California
Case Notes from Schmerber
Facts
Schmerber was in a hospital after a car accident, officer noticed alcohol on breath and
bloodshot eyes at the scene of the accident
The police officer requested a blood sample to be taken by the physician, no warrant
The blood sample indicated Schmerber was intoxicated and he was arrested
Procedure
Defendant moved to exclude evidence based on 14th amendment violation
Appelate court denied exclusion and affirmed his conviction
The Supreme Court affirms
Previous Cases
Rochin - officers without probable cause entered home and found pills, Rochin
swallowed them and he was taken to hospital where his stomach was pumped
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swallowed them and he was taken to hospital where his stomach was pumped
The Supreme Court said that the conviction violated due process and a sense of
justice shocks the conscious
Breithaupt - unconscious driver had a blood sample taken, no opportunity to object.
The Supreme Court did not exclude the blood because the violation did not offend
the sense of justice in Rochin
Reasoning
Distinction between the three
Rochin search not ok pumped stomach against will
Schmerber search ok blood test against will
Breithaupt search ok blood test not against will because the defendant was
unconscious
The 14th amendment protects against state self-incrimination
This right only protects against being forced to testify against yourself, not the
withdrawal of blood
The 5th amendment guarantees against federal self incrimination
Two components of 5th amendment claim:
Compulsion
Witness against yourself (testimonial or communicative)
Distinction is between compelling communications or testimony (BAD) v. being
the source of real or physical evidence (OK)
The test depended on a chemical analysis only, so they did not compel him to
testify against himself - no 14th amendment violation
The 4th amendment is search and seizures
Probable cause? officer smelled liquor and eyes were bloodshot at scene of accident
and two hours later in the hospital
Exigency? evidence of alcohol disappears as hours pass
The test was reasonable and performed in a reasonable manner
The 6th Amendment Claim (not talked about in book)- the assistance of council at trial
Class Notes from Schmerber
Exigency- they were worried that the alcohol would be out of his system
4th Amendment analysis of the search and seizure
J- Justification
A- Authorization
E- Execution (reasonable)
You can be asked to try on clothes from the scene and other things, but it is not against the 5th
Amendment
Lie detector test- may not be used in criminal prosecution, but the court has routinely approved
the use of BAC and DNA
If they are all three equally reliable, why are lie detectors not allowed? The lie detector
acts as a window into the accuseds mind and permeates the security and safety of his
own consciousness
Lie detector- the distinction which has emerged, often expressed in different ways,
is that the privilege is a bar against compelling communications or testimony,
but that compulsion which makes a suspect or accused the source of real or
physical evidence; does not violate it.
Difference between Schmerber and Breithaupt
Breithaupt was unconscious and in Schmerber, he refused
Why are they redeciding the same issue? The 14th amendment grabs all the cases that
dont fall under the 4th - 6th amendments
Blood test evidence under LA Law
Laws that require a driver to comply with breath, blood, or urine testing for intoxication
levels are implied consent laws. Refusal to cooperate with a police officer who requests
to see proof of insurance, a drivers license, or requests that a driver submit to chemical
testing carries a penalty of suspended driving privileges for up to one year.
Why is the 14th amendment claim treated independently?
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 Why is the 14th amendment claim treated independently?

1957 - 1996 cases - the 14th amendment falls outside of this
Mapp - 4th
Malloy v. Hogan - 5th
Escobedo v. Illinois - 6th
Book Notes from Schmerber
Voice samples
United States v. Wade - police did not violate fifth by requiring Wade to repeat robber's
words because it only used physical characteristics
Field Sobriety Tests
Pennsylvania v. Muniz - having a suspect speak to hear the slurred words also only uses
physical characteristics and is not providing a testimony
Doe v. United States- to be testimonial, the communication must relate a factual
assertation or disclose information
Compulsion Must Be Impermissible
Fifth is violated only if compulsion to engage in testimony is not allowed
South Dakota v. Neville - fifth does not bar use of evidence because no impermissible
compulsion is imposed upon the suspect
Requirement that compelled activity be incriminating
Minnesota v. Murphy - probationers can be compelled to answer questions that pose no
realistic threat to incrimination
Fourth Amendment Warrant Requirement
Added by the court, but not in the amendment language
Fourth Amendment Probable Cause Requirement
In general, a Fourth Amendment requirement that a search be based upon "probable
cause" to believe that the search would result in discovery of something the officers had a
right to seize.
Due Process Prohibition Against Conduct Shocking the Conscience
County of Sacramento v. Lewis - shocking the conscience is still a valid test of
admissibility of evidence
Winston v. Lee
Case Notes from Winston
Facts
Shopkeeper was closing for the night, saw someone armed and the shopkeeper pulled his
gun and fired
Shopkeeper was shot and brought to the hospital
Respondent was found later with gunshot wound, and told police that he was robbed
Respondent was taken to hospital and shopkeeper said that he was the man who shot him
Police investigated and decided that the defendant's story was not true
VA moved for the supposed bullet to be removed from petitioner - just under the skin
Bullet was found to be about 2 inches into the body
Procedure
Trial judge granted motion for surgery
Respondent brought an action in the USDC for 4th amendment violations, denied
Moved for new trial based on evidence about depth in the body, denied and VA SC
affirmed the denial, district court then affirmed
The Supreme Court granted certiorari
Reasoning
Reasonableness of surgical intrusions beneath the skin weighs interests in privacy against
society's interest in obtaining evidence
Factors of intrusion from Schmerber:
Extent to which the procedure may threaten the safety or health of the individual
Extent of intrusion upon the individual's dignitary interests in personal privacy and
bodily integrity
Is there a less intrusive method to use?
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 Is there a less intrusive method to use?

Is it essential to the prosecution?
VA clearly had probable cause to conduct the search
Class Notes from Winston
Intrusions on the suspect would be too intrusive
Incorporation of Amendments into state law
Mapp v. Ohio 4
Mallory v. Hogan 5
Escobedo v. Illinois 6
Police Activity Constituting a Search (What is a search?)
Katz v. United States
Book Notes from before Katz
Law Prior to Katz:
Silverman - Focused on whether police had intruded in some physical sense into a
protected area
Deals with electronic surveillance accomplished through physical trespass, this was
found to violate the Fourth Amendment despite the fact that intangible
conversations, not places or things were affected.
A unanimous court held that listening to a conversation via a spiked mike inserted
into a house constituted an illegal search and seizure
Katz v. United States
Officers placed a listening device to hear Katz in a phone booth and overheard the end of
his conversation
Court found that officers engaged in a search
Went away from Silverman (supra) rule and focused more on "what a person seeks to
preserve as private, even in a public area, may be const. protected"
Harlan's concurring opinion:
A person exhibited an actual expectation of privacy (subjective prong)
Have you signaled to others that you expect privacy?
Expectation is one that society is prepared to recognize as reasonable
(objective prong)
Court said there was a search because Katz believed his conduct would be private
If the phone booth was open during the call, we wouldnt even have this case
Reasonable Expectation of Privacy
What a person knowingly exposes to the public, even in his own home or office, is not a
subject of 4th Amendment protection, but what he seeks to preserve as private, even in an
area accessible to the public may be constitutionally protected
Plain View Observations
Horton - An officer has not engaged in a search where an officer observed an item left in
plain view
Means that owner had no expectation of privacy
Texas v. Brown - if an officer uses artificial lighting to see into a darkened area, it is not a
search (shining flashlight into car at night)
Because the item was in plain view means the owner had no reasonable expectation of
privacy in information obtainable by looking at the item
Can an officer seize something that is in plain view?
No he needs to go get a warrant
Search is separated from seizure
Requirements for plain view search: (Plain View is not considered a search! No need for
a reasonableness test)
Immediately apparent
Officer has to be lawfully in the place
Law Enforcement Conduct Revealing Only Criminal Information
May not be a search, if the information permits no reasonable expectation of privacy
i.e. checking to see if a substance was cocaine (United States v. Jacobsen)
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 i.e. checking to see if a substance was cocaine (United States v. Jacobsen)

A fedex package came open and the employee saw that it was cocaine, he
called the police and they checked it to see if its cocaine
No reasonable expectation of privacy
How does this field test differ from opening a trunk?
The test is substance specific, there is no possibility of other privacy violations
Searches Permissible on Less Than Probable Cause
The movement of equipment was a search, because it enabled the officer to obtain
information (serial numbers) otherwise unavailable to them
Reasonable under 4th if:
Conducted with a warrant
And supported by probable cause to believe it will result in info that a crime has
been committed or the identity of a person who has committed a crime
Arizona v. Hicks- An officer who was properly in an apartment moved some stereo
equipment to look at the serial numbers. The court ruled that this was a search
Electronic Surveillance as a Search
The mechanical interception of spoken words is sometimes a search
Smith v. Maryland - Tracked pen strokes to obtain phone numbers; is not a search
because it did not record conversations, just phone numbers - no expectation of privacy
for phone numbers
Dog Sniffing as a Search
Not a Search
The manner in which the information is obtained through this investigative
technique is much less intrusive than a typical search
It is substance-specific (like testing cocaine - there is no disturbance of noncontraband)
United States v. Place - exposure of luggage in a public place to a dog sniff test was not a
search - did not open luggage - no reasonable expectation of privacy with contraband
Examination of Trash as a Search
California v. Greenwood: respondents could have no reasonable expectation of privacy in
the inculpatory items they discarded; not considered a search. No search when trash on
the curb was placed in non transparent trash bags. Expectation of privacy does not give
rise to 4th protection unless society is prepared to accept the expectation as reasonable trash was placed on curb for collection by third party
Manipulation of Luggage as a Search
Bond v. United States- The officer manipulated the defendants bag and it was held to be
a search
The defendant does not expect that other passengers or bus employees will, as a
matter of course, feel the bag in an exploratory manner
Class Notes from Katz
Private Party Search
The government only restricts government searchers
Search Hypos:
Leave a key with your neighbor, he sees a pot plant. Takes a leaf and brings it to the local
constable. Can the police use that evidence?
Same facts but police go in to house following the neighbor and find the tree. Could
the police officer use this? If the police do not exceed the actions of the private
party search than they do not change it from a private party search - can still use
evidence
If your neighbor breaks into the house it is still admissible as long as the police played no
role in the collecting of the evidence.
If you ship with a private shipper you have an expectation of privacy - shipment of
pornographic material to wrong address - images too small to see - police are called police take and view on a projector - Had they stopped when they saw the package
and got a warrant it would have been okay - but taking the package and using on a
projector took it a step further than the private party.
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projector took it a step further than the private party.

If a principal thinks there is a drug problem, searches the student, finds pot, and then calls
the police -If the government is enticing or authorizing private third parties to engage in a
search- it does not qualify as a private party search (Coy v. Iowa)
Lip reader read Katzs phone conversation instead of listening device?
Sometimes depends on frequency of use
Pending case in Supreme Court: Florida v. Jardines
Police dog smelled marijuana in house, while outdoors
Does this count as plain view?
Requirements for plain view
Immediately apparent that it is contraband
Lawfully in the place where they obtained the viewpoint of the evidence
Was the dog on the curtilage?
There was a sidewalk dissecting it
Issues: (1) Whether a dog sniff at the front door of a suspected grow house by a trained
narcotics detection dog is a Fourth Amendment search requiring probable cause; and (2)
whether the officers conduct during the investigation of the grow house, including
remaining outside the house awaiting a search warrant is, itself, a Fourth Amendment
search.
Outside parties can act outside the rules of their companies
Oliver v. United States
Case Notes from Oliver
Facts: Officer walked around a locked gate at Olivers farm and passed no trespassing signs to
search a field after being tipped that marijuana was being grown back there. Found a marijuana
field about a mile away from defendant's home.
Procedural History
Trial: Suppressed the evidence - citing Katz - Not an open field
Court of Appeals: reversed the suppression - human relations that create the need for
privacy do not ordinarily take place, in open fields.
The Supreme Court: Affirmed
Previous Case
Hester v. United States- officers can enter and search a open field without a warrant
No 4th amendment violation because of the open and public nature of fields
Oliver differs from Hester because Oliver is not an open field, per se (no
trespassing signs and gates)
Society is not prepared to recognize the privacy of an open field
Maine v. Thorton
Facts: Officers entered the woods between two houses. Followed a foot path
until they found a patch of marijuana surrounded by chicken wire. Officers
went get a search warrant and arrested Thorton
Procedural history:
Trial: Suppressed - warrant premised on information obtained during
warrantless search
Appeal: open fields doctrine did not justify search.
The Supreme Court: reversed and remanded
Holding: The Supreme Court took both cases to clarify the discrepancy between Oliver and
Thorton
Open fields are not explicitly covered in the 4th amendment and they are not considered
an effect - not an unreasonable search to search an open field
Effects - the framers intended effects to be limited to personal instead of real
property.
Open fields doctrine - permits officers to enter an open field and search without a
warrant.
Exception: curtilage - the area immediately surrounding your house is not
included in the open field doctrine
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included in the open field doctrine

Curtilage demands protection under 4th amendment
Case by Case analysis
Creates a danger that constitutional rights will be arbitrarily and inequitably
enforced
Makes it hard for police officer to discern boundaries.
Protecting open fields would make it unreasonable and complicated for police to analyze
the situation - were signs posted, fences to expect privacy?
Just because privacy is expected does not mean its a legitimate expectation of privacy!!
Society does not recognize the expectation of privacy
How do we tell if society thinks it is reasonable or not? Sources:
Is it against the law? Trespassing. Legislation is the will of the people.
Intimacy of the setting
Potential uses of property
Referendum (poll) of the people to determine views
Frequency of the activity (Riley)
One can only have a reasonable expectation of privacy over
curtilage (factors given in Dunn) surrounding the house
Legitimate test: whether the government's intrusion infringes upon the
personal and societal values protected by the 4th amendment.
Affirms Hester
Book Notes from Oliver
United States v. Dunn
Officers crossed over the perimeter fence (whole 198 acres fenced in), climbed a barbed
wire fence and the fence surrounding the large barn front and approached he barn. They
walked under the overhang and up the locked gates. By shining a flashlight through the
netting they observed a drug laboratory.
The Supreme Court held the evidence as admissible and the officers did not engage in a
search
Four factors as to curtilage:
The proximity of the home to the area claimed to be curtilage
Whether the area is included within an enclosure that surrounds the home
The nature of uses to which the area can be put
The steps taken by the resident to protect the area from observation
United States v. Jones
Case Notes from Jones
Facts: Government obtained a warrant to place a GPS in the undercarriage of Jones car.
Warrant was for 10 days and for placement in DC. GPS was placed on the 11th day in
Maryland.
Procedural History:
Trial: only suppressed while parked next to house - [a] person traveling in an automobile
on public thoroughfares has no reasonable expectation of privacy in his movements from
one place to another.
DC Appeals: warrantless use of the GPS - violated 4th amend
The Supreme Court - cert granted
Issue: Was the placement of a GPS device a search? Yes
Holding:
The Government physically occupied private property for the purpose of obtaining
information. We have no doubt that such a physical intrusion would have been
considered a search
The police officer had obtained a warrant. The warrant was limited to DC and had a 10
day limit for the placement of the GPS. The GPS was placed on the 11th day and was
placed in Maryland.
The court found that the government did not have a search warrant = warrantless search
against the 4th amendment.
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against the 4th amendment.

Government admits the warrant was deficient, they try to prevail because the
government believed there was no search.
Is Oliver still good law?
Oliver said that the trespass didnt matter
Jones said that the trespass does matter
Class Notes from Jones
Scalia view of search - Trespass (intrusion constitutionally protected space or violation of
reasonable expectation of privacy
The search was the installation and use of information
Alito - whether reasonable expectations of privacy were violated, says the police activity was a
search. The length of time of surveillance was too long to expect privacy.
Florida v. Riley
Case Notes from Riley
Facts
Anonymous tip that weed was being grown on Rileys property
Officer could not see greenhouse from the road so he circled in a helicopter at 400 feet
above ground
Officer was able to see into the greenhouse because parts of the roof were missing.
Officer was able to see what he thought was marijuana with his naked eye
Warrant was obtained and marijuana was found
Procedure
Florida trial court granted motion to suppress
COA reversed
FL SC affirmed trial court decision
The Supreme Court granted certiori
Precedent
California v. Ciraolo- It was not a search when the police used a fix winged airplane to
see a marijuana field at 1000 feet, with the naked eye
The yard was within the curtilage, but society did not support the expectation of
privacy
The home and curtilage are not necessarily protected from inspection that involves
no physical invasion - 4th amendment does not require police in public airways to
obtain a warrant to view what is visible to the naked eye
Holding and Reasoning
The helicopter viewing was not a search under the 4th amendment
Comparison to Ciraolo
Property was within the curtilage
Precautions protected against ground level observation
Both defendants could not have reasonably expected privacy from fly over
Private and commercial flights in the public airways are routine
Would be a different case if the helicopter had been flying at a height not within FAA
regulations
Flyover did not interfere with defendants normal use of the greenhouse or curtilage (no
undue noise, no wind, dust, or threat of injury)
Standard for how the court determines what is reasonable - Riley
How routine (often) the activity is - frequency of intrusion
Standard for how the court determines what is reasonable - Oliver
Court doesn't care whether there is a trespass - it is beyond the curtilage
OConners Concurring
Too much weight of the reasoning was placed on the helicopter flying at FAA regulations
=> the real test is that public air travel at that height is routine and considered reasonable
by society
Brennans Dissent
Go back to the Katz analysis
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 Go back to the Katz analysis

Very little air traffic with helicopters at 400 feet
Book Notes from Riley
Use of Camera in Aerial Surveillance
Dow Chemical Company v. United States - aerial observation of a 2000 acre outdoor
facility with a camera was not a search
Did not reveal any information besides buildings and equipment
The mere fact that human vision is enhanced some what, at least to the degree
here, does not give rise to constitutional problems.
Surveillance by Beeper
United States v. Knott- The use of a beeper did not invade a legitimate expectation of
privacy (The warrantless installation was not challanged)
The court ruled that this was similar to someone following them in a car
Not a search - The transmitter did not give the police any information that could not
have been obtained with ordinary eye sight or physical surveillance.
Nothing in the Fourth Amendment prohibited the police from augmenting the
sensory faculties bestowed upon them at birth with such enhancement as
science an technology afforded them in this case.
United States v. Karo- the installation of a beeper was not against the 4th Amendment
because defendant did not have possession or tittle to the can, but once it was installed, it
was against the 4th Amendment (it became a warrantless search) because it provided
officers with information about the inside of the home that they would not have
previously been able to obtain.
The difference between the two cases is that the first case just showed where they
were and the second case showed were the item was, which was not visible to the
naked eye
Thermal Imaging Surveillance
Kyllo v. United States- Thermal imaging = search
The 4th amendment has never been tied to a measurement of the quality or quantity of
information obtained
What if it only picked up marijuana heat lamps? Would still be a violation of a reasonable
expectation of privacy
Dog Sniff at Residence Door
State v. Rabb- A dog sniffing at the door of a residence= thermal imaging because of the
intrusion of the constitutionally protected area
Louisiana Cases
Because Article 5 1 of LA Constitution makes specific reference to property it provides
greater rights to privacy than the US Constitution.
State v. Byers
Background
Defendants charged w/ producing marijuana
Trial court: MTs to Suppress Overruled
Certiori Granted
Facts
Defendants are growing pot on land that is clearly marked with numerous signs stating no
trespassing and have chained the road entering the land in further attempts to ensure
privacy
Trespassing hunter sees pot and tells Sheriff
Marijuana was not visible from the public road or from outside the property
Sheriff trespasses, then again with another officer, then again the next year
Started surveillance of the property
Police returned again and arrest the defendants
Issue
Was there a legitimate expectation of privacy? YES
Previous Cases
ACJ Page 16

 Previous Cases
State v. Fearn - Seizure of weed in ditch not viewable from street was not constitutional
under similar circumstances
Hester - warrantless search and seizure was permitted by open fields doctrine
Reasoning
Ct differentiates Hester on the grounds that the defendants had taken every precaution to
ensure privacy, none taken in Hester
Police could not invoke plain view doctrine because the officers were not lawfully
present when they viewed the weed
Relied on the LA decision in State v. Fearn
Weed was not visible from road
Defendants had done everything they could to have a legitimate expectation of
privacy - signs and chain
State v. Brisban
Facts
While an officer was making an arrest next door, he noticed that the neighbors were not
sitting on the porch
Previously the neighbors had told the officers that if they are not on the porch, then that
means there is drug activity in the area
The officer then walked up to the porch to speak with one of the neighbors, and he looks
through the screen door of one of the other apartments and notices a man cutting crack on
the kitchen table
Procedure
Trial court convicted defendant of attempted possession of cocaine
COA reversed and suppressed the evidence because the officer never observed the
defendant committing a crime
LA SC reverses the COA decision and says that the officer was within the plain view
doctrine, had exigent circumstances to enter the home, and probable cause
Issue
Was the officer engaged in an illegal search by being on the front porch? No
Reasoning
Arresting officer was lawfully in a position to observe defendants behavior.
There were exigent circumstances allowing the officer to immediately enter the
residence.
Prevention of the destruction of evidence
Probable cause to arrest the defendant
Cop had entered the curtilage (porch) of the home, but he was lawfully on the front porch
for a legitimate purpose (Oliver)
Porches are not given as much protection because porches can be entered by the
public to knock on the door
Previous Cases
State v. Dreary
The court upheld the warrantless arrest of defendant Dreary in his home based on
probable cause acquired when an officer conducting a legitimate police
investigation knocked on the side of the defendants house and observed through
the opened front door the startled defendant drop a bag of crack cocaine
Dreary affirms the holding in State v. Dixon: the police have the same right as
other members of the public to approach the doorway of a home and see what was
exposed by the owner to the view of the general populace.
State v. Fearn
Facts
Defendant is growing weed in ditch in backyard of parents house
Ditch was screened from view by a shed and fence and could not be seen from public
street
Neighbor notices the plants and calls police
Officer views the scene from neighbors house and walks over to identify
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 Officer views the scene from neighbors house and walks over to identify
Officer identifies weed before he gets to defendant's property
of the plants were not visible unless close inspection
Other of plants were only visible at the defendant's property line
Officers arrest defendant and seize the weed without a warrant
Procedural Background
Defendant charged with possession of marijuana
Trial judge grants motion to suppress
Court of Appeal grants certiori
Issue
Was the defendant's expectation of privacy violated by the warrantless search and
seizure? Yes
Reasoning
Defendant had reasonable expectation of privacy
Search was not incidental to an arrest because the defendant was not in immediate control
of weed
Plain view conditions (LA):
Must be prior justification for intrusion - not met
Evidence is discovered inadvertently - not met, this was a planned search
Immediately apparent without close inspection that the items are evidence or
contraband
Plain view alone is not enough to justify a warrantless seizure, so the exception does not
apply to this case
There was no exigency
Dissent
Both dissents view this as a Hester open fields issue
Chief Justice Sanders
The view of the plants was obstructed only from the southeast and a person could
w/o difficulty position himself to see the area from the street
The plants were not enclosed and less than 10 feet from the neighbors property
Height of weeds are the only form of cover
These facts do not create a sufficient expectation of privacy
Police Activity Constituting a Seizure
Horton v. California
Book Notes from before Horton
Seizure - if it is unlawfully possessed than it is not a seizure.
Soldal v. Cook County - mobile home was removed from its location under the direction of the
police; activity was not considered a seizure and was protected because they did not enter or
rummage through the house
Definition of a seizure - whether activity constitutes a meaningful interference with the
suspects possesory interests; (a person as well as an item can be seized)
The 4th Amendment protects against seizures resulting from "searches" but not seizures
generally
Items Subject to Seizure - Officers are entitled to seize items which they have sufficient reason
to believe are seizable
Contraband
Instrumentalities and fruits of crime
Evidence-Okay to seize, but at one time was barred by the 4th Amendment
May also seize a suspects possession after an arrest if it is to prevent damage to
possession
Need for Probable Cause
Coolidge v. New Hampshire - it must be immediately apparent to the officer that the item
is subject to seizure
Arizona v. Hicks - probable cause is required for seizures
Searches of Seized Items
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 Searches of Seized Items

United States v. Chadwick - officers validly seized a footlocker, but illegally searched it
because of no warrant
Once the officers have seized the item and there is no possibility of the arrestee
destroying it or interfering, a search is no longer an incident to the arrest and a
warrant is needed
Case Notes from Horton
Facts
Victim was attacked by two masked men with a machine gun and a stun gun
The victim was handcuffed and robbed
Victim was able to identify defendant's voice
Police officer determined that there was probable cause to search defendants home for
robbery property and weapons
Warrant only authorized search for the robbery proceeds (three rings)
Officer searched home pursuant to warrant and found weapons and other evidence in
plain view, the evidence was seized
Issue
What are the conditions of a plain view seizure? Inadvertent discovery is a
characteristic of plain view seizures, but not a necessary condition
Holding and Reasoning
Seizures in plain view only violates the possessory interest of property owners, not
privacy rights, because the item is already in plain view.
2 requirements of a plain view seizure:
Police must be located in a place from which the object ban be plainly seen, but
they must also have a lawful right of access to the object itself
In plain view + Nature must be incriminating on the items face. (contraband)
The search was authorized by the warrant and the seizure was authorized by the plain
view doctrine
Dissent
There is no reason why the officers couldnt have obtained a warrant for seizure
Allowing officers to act without a warrant to know the location of evidence, have
probable cause to seize it, and intend to seize it is unconstitutional
Rewards lazy police work when officers dont fill out warrant because they know that
they will stumble across desired evidence
Inadvertent discovery protects possessory interest
Class Notes from Horton
What can you seize during a search?
Things listed on the warrant
Things that are unlawfully possessed
A weapon owned by a parolee
A search warrant limits searches only to areas where the item your are searching for can be
found
Look for a car only in a few spots, you can look for a ring almost anywhere
When in doubt, name the smallest thing that you could find
Must stop when the things in the warrant are found
May not necessarily have to start in the place where the item would most likely be
found
Hypo
Suspected tax evasion, ask neighbors and get wind of home brewed beer. Officer gets
search warrant looking for financial records indicating tax evasion
See tax return in desk, Can he seize it?
Yes, he can pick up evidence pertaining to other crimes.
ISSUANCE AND EXECUTION OF ARREST AND SEARCH WARRANTS
The Showing of Probable Cause
Illinois v. Gates
ACJ Page 19

 Illinois v. Gates
Book Notes from before Gates
Basics
Warrant - court order authorizing a law enforcement officer to arrest an identified person
or search a specified place for and to seize specific items
Issued upon presentation of information believed to justify the arrest or search
Information is presented for an arrest in a complaint
Information is presented for a search in an affidavit
When a search warrant is desired, the document of application is ordinarily called simply
an affadavit
Warrants are preferred because they are issued by an unbiased magistrate beforehand to
avoid violations of the 4th amendment
Big issues from this chapter
Can officers use tainted evidence? Murray v. United States- no fruit from the
poisonous tree to prove probable cause
Can officers use hearsay? Gates
What is probable cause for an arrest? A person of reasonable prudence would believe
that it is more probable than not, he is guilty of committing a crime
For a search warrant? A person of reasonable prudence would believe there is
evidence of a crime would be found in a particular location
Magistrates
The Supreme Court gives two requirements
Neutral
Detached
Coolidge - attorney general actively involved in investigation could not issue
warrant
Cannot be biased
Connally v. Georgia- A justice of the peace was given $5 for every
warrant issued and nothing for denials, declared unreasonable
No requirement that the issuer needs to be a judicial officer or magistrate
Clerk of the Municipal Court can issue a warrant (Shadwick)
Does not say whether someone completely outside the sphere of the judicial
branch could issue a warrant
Suppression Hearing Judges dont start the hearing de novo, they take the magistrates
judgment into account
Need for a local magistrate
Traditionally, a judicial officer may only issue warrants for law enforcement actions
within the judges jurisdiction
Exceptions:
If the property or person is within the district before the warrant is executed
USA PATRIOT Act allows federal judges to issue warrants for any districts
where activities related to terrorism may have occurred
Showing Probable Cause Before Gates We will use this as a basis for probable cause
Aguilar v. Texas - the magistrate cannot take the officers word that probable cause
exists. They must examine it and determine on their own.
Spinelli v. United States- a tip is not usually valid under Aguilar, but it can constitute
probable cause if:
The tip describes the suspects criminal activity in sufficient detail that the
magistrate can infer that the informant obtained the information in a reliable way
Other information may corroborate parts of the information in the tip to justify
relying on the tips assertions
How do you know the informant is telling the truth?
Physical testimonies are the best
Facts that provide basis of knowledge (how the informant got his information)
and veracity of reporter (how reliable is the informant)
ACJ Page 20

and veracity of reporter (how reliable is the informant)

Had to meet both prongs independently. - (we now use the totality of
circumstances)
Case Notes from Gates
Facts
Police received anonymous letter in mail informing that there is a couple who engages in
drug trades, the next date for a drug delivery is given, and that the defendants have
$100,000 of marijuana in their basement
Officer followed the tip, verified the address, and that a flight was booked
Police started surveillance of the flight and the couple on their way home
Officer signed affidavit and the judge issued a search warrant for the defendants
residence and car
Judge decided that the defendants mode of operation was corroborated
Police were waiting for defendants at their home and found the drugs in the car and home
Procedure
Defendants were indicted for violation of state drug laws
Defendants moved to suppress evidence seized during a warranted search
Trial court - granted motion because the affidavit failed to support probable cause that
the car and home contained contraband
IL COA - affirmed
IL SC - affirmed the lower decisions and granted the suppression of evidence because the
warrant was invalid under the decision in Aguilar
Used two-prong test from Spinelli (we will use this two prong test in class even
though it was overruled) have to independently show probable cause on each prong
The letter had to adequately reveal the basis of knowledge of the letter writer
The letter had to provide facts to establish the veracity (truthfulness) of the
informant or the reliability of the report
The Supreme Court granted certiorari, reversed
Holding: Jones standard should be reinstated: if the magistrate had a substantial basis for
concluding that a search would uncover evidence of wrongdoing
Reasoning
A rigorous analysis is not useful because the people issuing affidavits are not trained on
legal principles
More scrutiny would cause police to go outside of warrants to obtain evidence
Anonymous tips would be devalued
Jones standard should be reinstated
The big fact is that the tip talked about future behavior instead of recognized
routines
Brennan Dissent
The Spinelli/Aguilar two-prong test should be kept to structure the inquiry for greater
accuracy
Stevens Dissent
There were many discrepancies between the tip and the real events => no probable cause
regardless of standard used.
Book Notes after Gates
Anticipatory Warrants and Probable Cause
Anticipatory Warrant - Warrant based on an affidavit showing probable cause that at
some future time, certain evidence of a crime will be located at a specified place.
Most anticipatory warrants are subject to a triggering condition, not just a mere passage
of time
Grubbs- The defendant ordered child porn from the Feds and it was sent to him through a
controlled delivery, they applied for an anticipatory warrant beforehand that allowed
them to search only after the tape was delivered and taken inside the residence
In theory, an anticipatory warrant is no different than a normal warrant:
1.) It is NOW probable that 2.) contraband, evidence of crime, or a fugitive
ACJ Page 21

 1.) It is NOW probable that 2.) contraband, evidence of crime, or a fugitive

WILL BE on the described premises 3.) when the warrant is executed
The triggering condition does not have to be listed in the warrant
Must have a fair probability that if the condition occurs that the evidence will be
found in the particular place AND there must be probable cause to believe the
triggering condition will occur
Alabama v. White 496 U.S. 325 cites gates - uses totality test
Louisiana Cases
State v. Culotta Part 2
Facts
Police officer obtain information from a Jefferson Parish Police officer.
The police officer received his information from a reliable informant.
Procedural History
Holding: Not enough to search 850 Florida Blvd.
Reasoning
Affidavit submitted to magistrate may be based entirely on hearsay, but if so it must be:
Set forth underlying circumstances and details sufficient to provide a substantial
factual basis by which the magistrate might find reliable both the informant and the
information given by him
Factors which support credibility of an unidentified informant
prior accurate reports
any specific independent corroboration of the accuracy of the instant report
Factors which support the credibility of the information
Direct personal observation by the informant
In informant obtained info indirectly, must give reasons in sufficient factual detail
for the magistrate to evaluate the credit and reliability of both the indirect source
and indirectly obtained information.
Cited cases
State v. Paciera
Officer obtained warrant after another officer told the officer who was
applying for affidavit what he saw
Double hearsay could be used as reliable to justify issuance of search warrant,
providing that the affidavit meets the tests of both reliability of informant and
the information
A search warrant may be validly based upon hearsay information which
demonstrates a substantial factual basis for the search.
State v. Barrilleaux
Facts
Defendant operated a Rehab Clinic
Police suspected him of defrauding several insurance companies by charging fake
sessions, forging Dr. names, and charging under fake Dr. names.
The officer got a warrant because he had information from an informant, but intentionally
hid her identity for safety purposes
Although not included in the affidavit, officer orally informed the magistrate of the
informant and his reasons for the omission.
The informant also gave the officer some of the defendants business records that
showed fraud.
N ot lawful search but in this case it does not matter since the police did not
instigate the search.
The judge gave him the warrant
Ruled that under the totality of the circumstances probable cause existed and
regardless the omission was in good faith (Leon)
We know nothing about the veracity of the informant. This is a bad warrant
according to Gates.
Good Faith exception of the name - he left it out to protect the citizen.
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 Good Faith exception of the name - he left it out to protect the citizen.
The affidavit gave NO information about the reliability of the informant, no information
about the informants knowledge, and no independent police follow up to corroborate the
tip
Procedural History
Trial Court: Good faith exception of Leon means warrant was valid
COA: affirmed
Issue
Should the exclusionary rule be applied in cases where an officer in good faith and for
valid reasons omits pertinent info from the affidavit but provides the info orally to the
magistrate?
Holding
Where an officer in good faith leaves information out of an affidavit and instead orally
tells the judge the exclusionary rule will not apply.
Exclusionary rule is used to enforce Four Corners Doctrineallows for Leon exception
Key Term
Four Corners Doctrine - based on LA Code of Crim Procedure art. 162
Requires an officer seeking a search warrant to reveal, at the time of the issuance of
the warrant, all information that he possesses bearing on the probable cause
determination to be made by the magistrate
The magistrate is limited to the facts contained within the four corners of the
affidavit in his determination of probable cause
Reasoning
Generally an affidavit cannot be supplemented or rehabilitated by the testimony of the
affiant or the issuing magistrate.
The court threw out the four corner rule as a must and made it a guide unless police have
acted in good faith and for a valid purpose
Court adopts a good faith exception (like Leon) to the four corners doctrine based on a
balance of issues
Officer acted in good faith and magistrate erred in not denying- applying the
exclusionary rule here doesnt further goal of deterrence of police misconduct
Level of deterrence outweighed by cost of exclusion
deterrent purpose of the exclusionary rule would not be boosted in any way by
suppressing the evidence
Dissent- Calogero
4-corner implemented to protect the accused from the actions of over-zealous officers
Not enforcing the doctrine could allow the state to rehabilitate a facially deficient
warrant by showing that the police somehow gave the magistrate enough info...
State v. Green
Facts
Detective was informed that a child was brought to hospital with burns on 50% of body
Mother told police that she asked her son to run the bath water and to take a bath. He
complained about the temperature and when she came to get him, he fell back into the
tub. The boy did not say that he was in any pain.
Detectives applied for a search warrant to get photos of crime scene, collect evidence,
obtain skin tissue, test water temperatures, and victims clothing.
Magistrate signed the search warrant, the temperatures were tested and defendants were
arrested
Defendants filed motion to suppress evidence - used the four corners rule - that it is not
apparent as to what crime was committed from the warrant
Issue
Holding
Reversed - Evidence seized is admissible
Reasoning
Probable cause is not defeated by imagining innocent explanations for an activity
ACJ Page 23

 Probable cause is not defeated by imagining innocent explanations for an activity

Standard: when a reasonable man could assume that an innocent explanation was less
likely than a criminal one
The magistrate could have concluded that a crime was committed from the references to a
victim, time factors, incident, using the word suspects, and that they were Mirandized
Dissent - Kimball
The affidavit did not present probable cause and the evidence must be suppressed
Challenging Factual Assertions in the Affidavit
Franks v. Delaware
Case Notes from Franks
Facts
Man sexually assaulted Bailey with a knife
Bailey gave detailed description of suspect
Defendant was taken into custody on the same day, on different charges
Defendant remarked that he mistakenly heard the bail hearing was about Bailey and he
did not know who that was
Officers matched Franks to Baileys description and obtained a warrant
Clothing and knife matching the description was found and admitted
Procedural History
Defendant files motion to suppress because the warrant did not show probable cause and
attacked the veracity of officer statements - the real account did not match the affidavit
State argued that defendant could not go behind the warrant, but must fight the
information of the four corners
Motion to suppress was denied
DE SC - Affirmed. A defendant may not challenge the veracity of a sworn statement
used by police to obtain a warrant.
The Supreme Court reverses - because defendant has complete bar - Defendant gets
chance to contest the veracity of statements
Issue
Does a defendant in a criminal proceeding ever have the right under the 4th and 14th
amendments to challenge the truthfulness of factual statements made in an affidavit
supporting the warrant?
Holding
Where the defendant makes a preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the affiant in the
affidavit, and if the false statement is necessary to find probable cause, the 4th
amendment requires a hearing be held at defendant's request. Warrant and fruits are
voided if a preponderance is in defendants favor.
Reasoning
It is presumed that information contained in the affidavit is truthful
This does not mean that it is completely accurate - just thought to be true
Much of the information is based on hearsay or compiled hastily
A complete ban on challenging veracity would nullify probable cause requirements
because the officers could lie to convince the magistrate with no real consequences
The urgency of a search will not allow a magistrate to completely verify every assertion
Rule:
There must be allegations of deliberate falsehood or reckless disregard for the
truth, along with an offer of proof, to challenge the affidavit
Reckless disregard for the truth- Not intentional but knowing
Defendant should point out what is false about affidavit and supporting reasons of
why
Affidavits should be furnished, or their absence satisfactorily explained
If the false material is set aside and there is still probable cause: no hearing
If there is no probable cause: defendant is entitled to a hearing
Class Notes from Franks
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 Class Notes from Franks

They want an affidavit to dispute a warrant- have to prove that the warrant was purposely false
Only reaches to governmental parties
Does it only apply to police officers? Yes, only the affiants statements and governmental
informants
Some informants can be governmental if they get paid
What about informants who are given time off their sentences? Grey area in the law
Book Notes from Franks
Availability of Informants Identity
Does the 4th amendment give defendant right to know who was the informant?
Roviaro v. United States - due process gives you the right to confront your accuser
when presented at trial, or else the evidence must be discarded
McCray v. Illinois - left the question unanswered, the court answered No, but it may
have been because of the particular circumstances. The government cannot be
forced to disclose the identity when the identity is used to get a warrant
Franks suggests that the defendant may have the right
Louisiana Cases
State v. Rey
Facts
Rey convicted of possession of heroin with intent to distribute
Search pursuant to warrant was conducted at Reys house
Affidavit contained surveillance and witnesses of heroin activity by Kenner - however
the surveillance was mistakenly being performed on Rey
Prior Case
United States v. Thomas - remove the inaccurate statements from the affidavit then
examine the remaining to see if probable cause exists
Reasoning
Adopts the Thomas rule
Name error was not intentional
Mistake was in name only. The informants had the wrong name but not the wrong
person.
The mistaken identification of the car owner was not a major issue in criminal activity
Inclusion of mistaken suspects criminal history was not intentional
Probable cause existed after removal of misrepresentations
TEST: Negligent, unintentional misrepresentation = reevaluate the affidavit with the
misinformation deleted to see if the remaining facts would establish probable cause
When the misrepresentation was intentional: quash the warrant because it is in line with
the good faith doctrine to exclude evidence that is not obtained evidence obtained in good
faith.
State v. Lehnen
Facts
Affidavit recited information from Lehnens neighbor and her son
They had recently seen Palmer bring automatic illegal weapons into apartment
Someone upstairs had pointed a gun at a 12 year old
Someone reported that Palmer had discharged arms in the back yard
Police investigated and found Palmer and defendant had criminal records which gave
probable cause
Search with warrant yielded drugs, but no weapons
Procedure
Defendant filed motion to suppress
Witness said that from his distance it would have been impossible to identify
weapon (not included in affidavit)
Trial court denied motion to suppress - no intent to deceive
LA SC affirms
Issue
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 Issue
Should a motion to suppress be granted when an officer omits, without bad faith on his
part, relevant facts which might affect the magistrates decision on probable cause? (NO)
Reasoning
Court does not believe that affidavits truthful assertions, where not all information was
given, should be removed to determine probable cause
TEST: Officer omits without bad faith relevant information = Consider the affidavit as if
the omitted facts were present on review
The magistrate would have found that probable cause exists, even with the excluded
information.
The fact that they both had criminal records played a significant role in the
determination to still find probable cause
Trial courts determination of probable cause is entitled to significant deference
Louisiana does follow Franks, only requiring more stringent sanctions than the Supreme Court
upheld
Execution of Warrants
Richards v. Wisconsin
Book Notes from before Richards
Two Major Questions
What extent do the 4th amendment or state provisions embody statutory and court
appointed warrant requirements?
What is the effect of violating requirements upon the admissibility of evidence?
Announcement Requirements
Officer can force entry after notice have been given and entry refused 18 USCA 3109
Miller and Sabbath - arrests without warrants must comply with criteria identical to those
set out in the statute. Evidence used from searches that do not comply with criteria, is not
admissible in federal court.
Wilson v. Arkansas - some unannounced entries are unreasonable under the 4th
amendment
Some unannounced entries are reasonable:
If they think evidence will be destroyed
Fear for the safety of the officers
If the person can run away
Return of the Warrant and Inventories of Seized Items
Cady v. Dombrowski - the officers failed to list all items seized on the inventory filed
with the court - the failure to list items did not subject them to exclusion
West Covina v. Perkins - Supreme Court reversed holding that when the police seize
property for a criminal investigation, due process does not require them to provide the
owner with notice of state law remedies.
Once the property owner is informed that his property has been seized, he can turn
to public sources of law to learn about the remedial procedures available to him.
Perkins never needed the warrant number to file a motion for the return of the
property.
Case Notes from Richards
Facts
Police had substantial evidence that Richards was selling drugs out of his hotel room
Applied for a no-knock entry warrant
The magistrate granted the warrant, but deleted the no-knock portion
Officers knocked, Richards opened the door and then closed it
Officers started to knock the door down while identifying themselves and found Richards
trying to escape
Found cash and cocaine
Procedure
Richards moved to suppress evidence because the officers failed to knock and announce
their presence prior to entry
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their presence prior to entry

Trial court denied motion because the officers acted with exigency based on Richards
actions and acknowledged the easily disposable nature of the drugs
Wisconsin SC re-affirmed the pre-Wilson rule that police officers are never required to
knock and announce their presence when executing a search warrant for felony drug
investigation - per se exception to Wilson rule
Exigent circumstances in felony drug cases make the situation dangerous, or
evidence could be destroyed
Exigent circumstances are always present in felony drug cases
Principal intrusion is the execution of the warrant, not the manner of entry
The Supreme Court granted certiori and overturns the blanket exception
Reasoning
Creating exceptions to knock-and-announce rule creates two problems
Overgeneralization - searches could be done when no one related to the drug
activity is present or when the drugs could not be quickly destroyed
Exception could be applied to other categories and create new exceptions which
would render the knock-and-announce element of the Fourth Amendment
reasonableness requirement meaningless.
Court goes against a hard-line rule and makes it a case by case analysis
Must have reasonable suspicion that knocking and announcing would be dangerous,
futile or inhibit effectiveness of search
The no-knock entry in this case did not violate the 4th amendment
Once Richards knew the police were at the door it was reasonable for the police to
force entry.
Footnote p151 no-knock entry is less intrusive than a warrantless search, but should not
be unduly minimized.
Class Notes from Richards
Just need reasonable suspicion not probable cause
Use of the exclusionary rule for this situation is inappropriate (Hudson v. Michigan)
United States v. Place, just need reasonable suspicion is all that is needed for a dog to sniff a
locker
Book Notes from Richards
Entries Requiring Announcement
Sabbath v. United States- Police knocked, no one answered, door was unlocked, policed
entered
Unlocked doors, partially opened doors, opening chain locked doors, or using a pass
key is the same as breaking down a door unannounced.
Service of the Warrant
Rule 41d - requires some sort of service (either handing to the person, or leave a copy
where the property was taken)
Violations of these requirements affect the admissibility of evidence obtained only
if the violation was "substantial" or intentional or if the complaining defendant was
in some sense predjudiced- Moya v. State
United States v. Gantt - Rule 41d was not satisfied when the officers showed the face of
the warrant but not the search list because the defendant was arrested before he could
view it
If the warrant is not disclosed until after the search, the individual losses privilege
of pointing out that certain items are beyond the scope of the warrant and
determining if the officers are operating under valid authority
Rule 41b provided that a technical violation excludes the fruits of the search
Groh v. Ramirez - in some cases it would be improper to leave a copy of the warrant
(wiretap)
Destruction of Property in Entering
United States v. Ramirez - Officers broke window in garage and pointed a gun before
breaking in to discourage people from using the dangerous weapons located in the garage
Wilson or Richards does not address whether the lawfulness of a no-knock entry
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 Wilson or Richards does not address whether the lawfulness of a no-knock entry
depends on whether property is damaged when entering
However, unnecessary or excessive destruction could cause the 4th amendment to
be violated
The officers were being reasonable in this case
Magistrates Authorization for No-Knock Entry
Magistrates denial of permission for no-knock entry does not affect the reasonableness
of the officers actions to the unforeseeable circumstances
A magistrate can grant a no-knock entry if the circumstances call for it
Delay in Execution of a Warrant
Sgro v. United States - warrant was valid for 10 days, officers did not act, took it back to
magistrate who changed the date and reissued it
Court held that magistrate did not have power to redate a warrant, evidence was
suppressed
United States v. Williams - officer was granted search warrant for cocaine. Informant
notified cocaine was gone, informant notified officer 8 days later that another shipment of
cocaine arrived. Search warrant executed 8 days after issuance of warrant but within the
10 day time frame. 8 day delay did not destroy probable cause
Whether the period of delay between issuance and execution is reasonable depends
on the facts and circumstances
Case by case basis - nature of cocaine trafficking supported continued existence of
probable cause.
Nighttime Execution
41c1 - warrant shall be executed in the daytime unless issuing authority and for
reasonable cause, authorizes its execution at another time
State v. Richardson - reasonable necessity (evidence will be destroyed by morning) may
authorize a night time search of a family occupied residence
In this case, meth was being produced until 2 am, so no one would be sleeping or
surprised by the knock
Policy reason: People overreact to intrusions in the middle of the night and have a
greater expectation of privacy
Gooding v. United States - only requires a showing that contraband will likely be present
at the time that the magistrate authorizes the warrant for
State v. Moore - if a warrant is executed in violation of non-constitutional limits on
nighttime searches, suppression may not be required
Suppression only required if prejudice that the search might not have occurred, the
search would not have been so abusive if rule was followed, or that there was
evidence that the rule was intentionally disregarded
State v. Fitch - warrant did not state reason for nighttime search; evidence was excluded
USA PATRIOT Act Delay of Service of Warrant
Allows delay if
providing immediate notification will have an adverse result
The warrant prohibits the seizure of any tangible property
The warrant provides for service at a reasonable, later time (no more than 30
days)
Authorizes sneak and peek warrants - allow officers to enter, search and leave
without providing notice
United States v. Banks
Case Notes from Banks
Facts
Officers executing a warrant to search for cocaine, rapped hard enough on door to hear
from the back of house and no indication was made that anyone was present
Waited 15-20 seconds and broke open door
Banks was in shower and said that he did not hear anything until the door was busted
Procedure
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 Procedure
Moved to suppress evidence because officers waited an unreasonably short time before
forcefully entering
District Court denied the motion
COA reversed and ordered suppression
The Supreme Court granted certiori and allowed evidence
Reasoning
Similar to Ramirez - here the Government claims that a risk of losing evidence arose
shortly after knocking and announcing
Was the 15-20 seconds reasonable? Yes, cocaine could be destroyed after this time
passage. If it was something larger that could not be destroyed, this timing is not
reasonable
It is immaterial whether or not the officers knew that Banks was in the shower
Ramirez also holds that exigency trumps destruction of property
Hudson v. Michigan
Case Notes from Hudson
Facts
Police obtained warrant to search for drugs and firearms and found both in plaintiffs
home
They had announced their presence, but only waited 3-5 seconds before opening the
unlocked door
Procedure
Hudson moved to suppress
Michigan court said that there is no suppression for cases when the warrant was followed
but knock and announce was not followed
The Supreme Court granted certiori
Holding
The exclusionary rule is inapplicable to knock and announce violations
Reasoning
Interests protected by knock and announce requirements do not include shielding of
potential evidence from the government
The absence of a rule for wait time protects officers from violence and prevents
destruction of evidence - we do not need to deter officers from assessing an exigency
There was no violation of any Fourth Amendment protected rights- Its not like they
busted in and he was naked
Dissent - Breyer
Separating the manner of entry from the related search slices the violation too finely
The violation was the but-for cause of finding the evidence - the question is not if the
police would have found the evidence either way, but if they misbehaved
The majority has changed the definition of attenuation (majority says it occurs
when the interest protected by the constitution would not be served by suppression
of evidence)
The majority speaks of substantial social costs, and weighing them against whats
gained from the search challenges the very premise of the exclusionary rule. Showing
that a valid warrant could have been attained is irrelevant
Class Notes from Hudson
Traditional Definition: Attentuation is the time between the constitutional violation (tree) and
the fruit
Louisiana Cases
State v. Williams
Facts
Officers knocked and yelled police. search warrant two times before using battering
ram after seeing lights on and people running inside the house.
Found cocaine, weapons and large amount of cash
Wife testified that officers waited 10-15 seconds from hearing the noise until they
ACJ Page 29

 Wife testified that officers waited 10-15 seconds from hearing the noise until they
forcefully entered
It was at night. 4:30 in the morning.
Husband says that it was about 3 seconds
Neither defendants heard the knocking and announcing
Procedure
Trial court suppressed evidence because police didnt wait long enough considering it
was 4am in the morning - people need more time
COA affirmed
LA SC granted certiori - overturned
Reasoning
The time that 3109 requires officers to wait depends on the circumstances of each case
Trial court ruled that a person needs more time to answer the door in the early morning to
take time to get out of bed - however, 4 out of 6 people in the house were already awake
at the time of search
The defendants watched the battering of the door take place and this is constructively a
denial of entry
Reject a bright line rule but the officers here waited long enough
Courts have generally employed a five second rule when testing to see whether a
constructive denial of entry has occurred.
Exclusionary rule does not apply even if the time limits was exceeded.
Maryland v. Garrison
Book Notes from before Garrison
Particularity about the Place to be Searched
United States v. Karo - putting a beeper in a can to track someone's location is a search the circumstances that led officers to place the beeper, the length of time of beeper
surveillance, and the object where the beeper is to be placed would have been sufficient
to permit issuance of warrant
Things to Be Seized
Marron v. United States - a description of things to be seized in the warrant limits
officers authority to search within the premises, but they may seize other items if they
have probable cause and they are in the process of searching for listed items.
Stanley v. Georgia - a warrant was issued for bookmaking materials. Officers found film,
watched it on projector and determined it to be obscene material. The officers
improperly seized the film by going beyond authority. (The watching of the film seems
to be the improper part)
Stanford v. Texas - the warrant was too broad when ordered to seize books, records,
cards, receipts, lists, etc.
Andresen v. Maryland - warrant authorizing seizure of other fruits, instrumentalities and
evidence of crime at this time unknown was sufficient because the objects related to the
crime
Difference between Andresen and Stanford: Stanford was objects protected by the
first amendment.
Groh v. Ramirez
You can file a civil action for a violation of the 4th Amendment, if they do not find what
they are looking for. If they find it... exclusionary
The mere fact that the magistrate issued a warrant does not necessarily establish that he
agrees that the scope of the search should be as broad as the affiants request
Persons to Be Seized
Visor v. State - arrest warrant described person as unknown black female, this was
ineffective
Case Notes from Garrison
Facts
When police applied for the warrant, they believed that there was only one apartment, but
the third floor was actually divided into two apartments
ACJ Page 30

the third floor was actually divided into two apartments

After they discovered the contraband, they realized that they were in the wrong apartment
and stopped the search
The warrant authorized search for the 3rd floor, but not for the specific apartment
Procedure
Trial court denied motion to suppress
COA reversed
The Supreme Court reverses the suppression of evidence
Previous Case: Hill (mentioned in the opinion)
Officers do not need to be correct, just need to have probable cause to believe they are
where theyre supposed to be- that their actions are justified
So if contraband found incident to other warrant being effectuated, then evidence will be
permissible
Holding + Reasoning
The warrant was too ambiguous in scope, but it was valid at issuance
The proper execution of the warrant depends on whether the officers failure of
understanding the over-breadth of the warrant was understandable and reasonable
The officers were reasonable in not understanding that there were two apartments
on the third floor
It is the citizens burden to raise any irregularity in the search. Again, a copy of the
warrant has to be left with the citizen
Dissent
The warrant limited the search to the 3rd floor apartment of Webb, so the search of an
additional apartment was warrantless and unreasonable in the absence of exigent
circumstances
Book Notes After Garrison
Search of Persons on Premises
You cannot search anyones person on the premises
Ybarra v. Illinois - The cops were supposed to search "Greg" and they searched
everyone. The court said that they couldnt do that.
Detention of Persons Associated With Premises
Michigan v. Summers
The courts permission to search and detain someone is irrelevant because his
search was subsequent and incidental to his arrest
Muehler v. Mena
The cops detained the plaintiff while they looked for guns and things related to
gang activity
The court says that it is ok to detain someone, and even handcuff them, to keep the
police safe if there is a threat to their safety or the search is inherently dangerous,
as it was here in a search for weapons and a wanted gang member
The duration and type of detention can be unlawful depending on what they are
searching for. There is a balance of interest
They asked her about her immigration status- mere questioning does not constitute
a seizure
Permitting News Media Coverage
In Wilson v. Layne, The Supreme Court held that it is a violation of the 4th amendment
for police to bring members of the media or other third parties into a home during the
execution of a warrant when the presence of the third parties in the home was not in aid
of the execution of the warrant
DETENTIONS OF PERSONS AND RELATED SEARCHES
Detention vis-a-vis Seizure
California v. Hodari
Case Notes from Hodari
Facts
Officers in unmarked cars and street clothes with police vests came upon youths standing
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 Officers in unmarked cars and street clothes with police vests came upon youths standing
around a car
When the officers approached, the youths ran and officers chased
Hodari threw a cocaine rock, then Officer tackled Hodari and handcuffed him
Procedure
Hodari moved to suppress the crack rock
Trial court denied
COA reversed - held that the seizure was the officer chasing Hodari, and this was
unreasonable
The Supreme Court grants certiori
Issue
Whether at the time Hodari threw the drugs, Hodari was seized within meaning of 4th
amendment?
Holding
This was not a seizure => If the subject does not yield to the application of physical force
or show of authority, there is no seizure
Reasoning
Prior case: Mendenhall - if a reasonable person would have believed he was not free
to leave
Crack rock was not fruit of seizure because Hodari did not yield to officer
Hodari was not seized until he was tackled
Arrest requires:
Physical force (to restrain movement, even when unsuccessful) or
Submission to the assertion of authority (lights of a police car)
If the suspect doesnt submit to the assertion of authority then this is not
a seizure
Until there is a seizure there is no reasonableness analysis and there can
be no fruit of the poisonous tree.
Dissent - Stevens
This would be the same case as seeing police lights, warning shots, or officers yelling
freeze
Basing whether or not a seizure occurred on the citizens reaction, allows for uncertainty
of when the 4th amendment is applicable
There will be a period of time where the citizens liberty has been restrained, but they
have not yet submitted
The police behavior during this time will be unchecked and privacy rights will be
violated
Book Notes from Hodari
Seizure of a stationary suspect
Florida v. Bostick
Bostick was on a bus to Atlanta, and narcotics agents asked him to search his bag,
while in route. He said yes, and they found cocaine.
Florida supreme court said it was a seizure and created a per se rule
The Supreme Court overruled
In this case, they shouldnt look at whether the person would feel free to leave, but
whether he felt free to decline the search (Mendenhall rule)
United States v. Drayton
Same basic case as Bostick except the defendants were asked to comply with a pat
down, then arrested after items that felt like drug packets were discovered
Showing of a badge, leaving the aisle open, and asking questions does not constitute
a seizure - there was no bar from leaving the bus or terminating the encounter
The officer asked to search Drayton - indicated that consent was voluntary
The arrest of one person does not mean that everyone around him has been seized
by the police
The Supreme Court- cops dont have to inform citizens of their right to refuse when
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 The Supreme Court- cops dont have to inform citizens of their right to refuse when
seeking permission to conduct a warrantless search
Scott v. Harris - Using a police car to ram the back of a fleeing suspects car would constitute a
seizure
Louisiana Cases
State v. Saia
Facts
Police observe defendant walk out of a known crack house
She sees the police, puts something in her waist band (appeared to be heroin) and walks
back to house
Police arrest her
Arguments
State - the officers had probable cause when they saw the glassline envelope - court says
this is correct, but they had already acted by the time they saw the envelope
Defendant - motion to suppress
Issue - did the police officers have probable cause to make a warrantless arrest?
Holding
LA SC - motion to suppress should have been granted
Reasoning
Terry - the right for an officer to frisk a suspect depends on the reasonableness of a
forcible stop to investigate a suspected crime
If unjustified, the evidence must be excluded
Association with known criminals may be a factor, but is not by itself enough to create
probable cause to support a stop
The police cannot create a street encounter (approaching the suspect) because they did
not have probable cause
McGough does not believe this case will stand because there are no constitutional limits
regarding having probable cause before approaching or walking towards a suspect on the
streets
Dissent:
A stop (temporary detention) did not occur by driving past the defendant. She was not
compelled to stop or turn back to the house because of police actions. The stop occurred
when officers laid hands on the defendant.
No invasion of defendant's privacy when officers drove by or questioned her. Temporary
detention was not made until the envelope was seen and legal cause was available.
State v. Tucker
Facts
Arrest #1 - Tucker arrested for possession of firearm and possession of marijuana
Arrest #2 - Drug sweep
Two men started running after seeing 20-30 police
The officer yelled for the men that were huddling to stop and lay down (this is a
seizure since he submitted - dope on him would be inadmissible)
Tucker kept running and tossed a plastic bag with marijuana cigs
Tucker then laid down and the officers retrieved the bag and arrested Tucker
Procedure
COA
The COA found Tucker was seized when the Officers yelled at Tucker to halt
because detention was imminent
The search was unconstitutional because probable cause was not present that
Tucker was engaging in criminal conduct
Holding
They adopt Hodari as far as when it defines what an actual stop (seizure) is, but they
create the exception the evidence that is discarded before the seizure is admissible if
seizure is imminent
Reasoning
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 Reasoning
Factors of assessing whether the force was certain to result in a seizure
The proximity of the police in relation to the defendant at the start of the
encounter
Whether the defendant has been surrounded by the police
Whether the police approached the defendant with weapons drawn
Are police on foot or in vehicles?
The location and characteristics of the area where the encounter takes place
The number of police officers involved in the encounter
Applying the factors to the case: Tucker was not virtually certain to be stopped
Tucker was far away from officers at start
No weapons
Shielded by night
Not surrounded by police
At the time Tucker abandoned the marijuana, he had not been unconstitutionally seized
and the evidence was admissible
Dissent - Calogero
The court shouldnt adopt Hodari - the standard before was that a suspect is seized
whenever there has been a display of police authority that would lead a reasonable person
to believe that he is about to be detained, whether or not he submitted to authority
This adoption decreases protection offered by the LA Const. - different from 4th
amendment
The constitution and jurisprudence does not support the imminent seizure exception
Searches Incident to an Arrest
Chimel v. California
Book Notes from before Chimel
Definition of Arrest - the apprehending or restraining of ones person in order to be
forthcoming to answer an alleged or suspected crime
First Element: was the individual free to leave the presence of the police?
Second Element: likelihood that the confinement will be accompanied by future
interference with the individuals freedom of movement
Custodial and Other Arrests
Distinction between releasing the individual in the field v. transporting the individual
elsewhere
Formal arrests
A detention accompanied by the officers expressed announcement to the detained person
that the officer is making an arrest
Warrant requirements for arrests
Arrest based on arrest warrant is issued based on probable cause
United States v. Watson - in a public place, without a warrant, the officer may arrest
a felon if the officer has probable cause that the person committed the felony
In general, you dont need an arrest warrant to effectuate arrest, especially for
felony
Misdemeanors - warrantless arrest permitted only if the offense was a breach of the
peace in the presence of the officer
Warrant Requirements - State Law Demands and Fourth Amendment Reasonableness
Virginia v. Moore - States can prohibit warrantless arrests that are permitted by 4th
amendment
Warrant Requirements - Search for a Person to be Arrested
When would exigency exclude the need for warrants?
Hot pursuit - excludes search and arrest warrants
Danger to the public
Kirk v. Louisiana; State v. Overton
Payton v. New York - the officers entered the defendant's home to search for him
An arrest warrant founded on probable cause implicitly carries the limited
authority to enter a dwelling in which the suspect lives when there is reason to
ACJ Page 34

authority to enter a dwelling in which the suspect lives when there is reason to
believe the suspect is within
Cannot enter the dwelling unless you have a warrant
Steagald v. United States
The Supreme Court held that cocaine found in Steagalds house could not be used
as evidence against him after the court searched his house, with a warrant, for
Lyons. The warrant was for the arrest of Lyon.
Steagald had an expectation of privacy in his home.
Welsh v. Wisconsin
Welsh had, while intoxicated, drove his automobile off the highway and into a field
where he abandoned it. The police found him in his nearby residence passed out and
naked. They arrested him and asked him to submit to breathalyzer test. He refused.
The Supreme Court: Some emergency conditions would sometimes justify
warrantless home arrests, but not for minor offenses
In this case driving intoxicated was considered a minor offense and the lower
courts decision was overturned. DWI in Wisconsin at the time was a Civil
Offense with no imprisonment penalty.
United States v. Santana
Is it OK to enter someone house or curtilage, without a warrant, while in hot
pursuit?
Reasoned from Watson
Police shouted police while she was in the curtilage, she ran in her house where she
was arrested. Hot pursuit authorized arrest in curtilage and home.
Entry to Arrest - Announcement Requirement
Miller v. United States- Arrest and Search incident to arrest were invalid since the police
failed to give notice of their authority and purpose
Probable Cause Requirement - In general
Beck v. Ohio
Whether an arrest is constitutional depends on whether at the moment the arrest was
made the officers had probable cause
Michigan v. Defillippo
Police are charged to enforce laws until and unless they are declared
unconstitutional
It is not the job for the police to determine whether the law is unconstitutional
unless the law is so grossly and flagrantly unconstitutional that any person of
reasonable prudence would be bound to see its flaws.
Probable Cause - Cooperative Action and Collective Information
Whiteley v. Warren
Arrest and Seizure were invalid when the police from one county radioed to another
county a search warrant that ended up being invalid.
When evidence is uncovered during a search incident to an arrest in reliance merely
on a flyer or bulletin, its admissibility turns on whether the officers who issued the
flyer possessed probable cause to make the arrest.
United States v. Hensley
Whiteley holding was to reduce the amount of information that was needed to
transfer between jurisdiction when looking for criminals that fled from one
jurisdiction to another
Excessive force
Tennessee v. Garner
Suspect fatally shot when officer reasonably believed he committed a night-time
burglary
excessive deadly force in making an otherwise proper arrest, rendered that arrest
unreasonable under the 4th amendment
Graham v. Connor
Non-deadly excessive force could have the same effect as Garner making the arrest
unreasonable
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unreasonable
Ok to use deadly force if:
Officer has probable cause to believe the suspect poses a threat of
physical harm to himself or others or to prevent the escape.
i.e. committed a crime involving the infliction or threatened infliction of
serious bodily injury.
Not ok to use deadly force:
It is not ok to use deadly force against a non-dangerous suspect
Officers in Garner and Graham get allowances for the officers need to make split second
decisions. Reasonableness is also judged from the perspective of the officer at the
moment the crime happened, not from 20-20 perfect hindsight.
Scott v. Harris - barring high speed chases to keep the public safe is not good for public
policy. High speed chases do not violate the 4th.
Brosseau v. Haugen- The cop shot the fleeing defendant in the back.
Illinois v. Lafayette
Defendant was arrested and handcuffed, defendant carried a man purse and the officers
examined the purses contents when defendant arrived at the station. Meth was found.
IL SC said that this was constitutional because it is reasonable for police to search any
article in the persons possession when arrested. Per se for custodial arrest. Inventory
search is not independent of the arrest.
Case Notes from Chimel
Facts
Officers arrived at defendant's home with an arrest warrant, wife let them in and they
waited until defendant came home
Defendant was arrested and officers asked for permission to look around
The defendant refused but the officers advised that the officers would conduct a search on
the basis of lawful arrest (no search warrant)
Searched the entire house and garage for one hour and removed coins, medals, and tokens
Issue: Is the warrantless search of defendant's house incidental to the arrest?
Holding - the search should not extend beyond the area where the person is arrested
Reasoning
Court uses Terry to say that search incident to arrest may only include the arrestees
person and the area within his immediate control
Immediate control - the area from within which he might gain possession of a
weapon or destructible evidence (After Gant this seems to be a Per Se rule)
Searching the person for weapons or destructible evidence can extend to a table
near by drawers where guns and evidence may be concealed
theory is to protect the officers from suspects resisting arrest and trying to
destroy evidence
Nothing justifies searching rooms other than where the arrest occurs
Rabinowitz should no longer be followed
Prior Cases
Rabinowitz - warrantless search may generally extend to the area that is considered to be
in the possession or under the control of person arrested; a wingspan search (area of
immediate control, AIC); allows for officers to remove weapons and prevent destruction
of evidence
Terry - search must be strictly tied to and justified by the circumstances
Dissent - White and Black
It is ridiculous to require an officer to obtain a search warrant to search the house when a
search is reasonable and the officer is already at the scene
Book Notes from Chimel
Rawlings v. Kentucky - whether the arrest/search was first does not matter
United States v. Robinson - a custodial arrest makes an unwarranted search of the person
not only legal, but reasonable - per se rule
Moving and Accompanying the Suspect
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 Moving and Accompanying the Suspect

Washington v. Chrisman - the officer can remain at the arrestees elbow at all times to
monitor the movements of the arrestee
Search for Dangerous Persons
Maryland v. Buie - for safety, officers can look in closets or other spaces big enough
for a person to hide immediately adjoining the place of arrest to check for attackers;
called a sweep - per se rule
To search the next layer, you need reasonable suspicion (see diagram below)
Hypo: Reading someones text messages while they are in police custody (cell phone was at
the police station)
Is it an search?
Yes, you have a reasonable expectation of privacy of the messages on your phone
Is it unconstitutional? No
Constitutional search = lawful search of the person, place, or inventory (Illinois v.
Lafayette) process
Can search of the person take place someplace else?
United States v Edwards - Defendant was in Jail for 8hrs. Analyzed clothes to
find paint chips that match the scene of the crime - Court: Valid search of the
person. Anything the police could have done at the scene of the crime they
can do at a later time.
Pending Supreme Court case - Florence v. Board of Chosen Freeholders of the County of
Burlington - suspicionless strip search allowed when arrested?
Louisiana Cases
State v. Barrett - adversely affected doctrine (LA only)
Police busted into Condriffs home to arrest Barrett
Barrett challenged constitutionality that he was adversely affected by entry into Condriffs
home
adversely affected - someone may piggy back off of someone else whose rights were
violated
The person who is arrested in a place where he has no reasonable expectation of privacy
cannot challenge the intrusion into another persons reasonable expectation of privacy
New York v. Belton
Case Notes from Belton
Facts
Officer stopped speeding vehicle and found that none of passengers owned the vehicle or
was related to owner
Smelled marijuana, and saw an envelope associated with marijuana, which gave the
officer probable cause for arrest
Orders men to stand outside the car in dispersed locations
Arrested the men and searched cars glove compartment and found Beltons jacket in
backseat which had cocaine in the zipped pocket
Issue - when the occupant of a vehicle is custodially arrested, does the scope of the search
incident to arrest include the passenger compartment?
Holding - when an officer has made a lawful custodial arrest of the occupant of an
automobile, he may incidentally search the passenger compartment of the vehicle
Reasoning
Police may also search any container that is within reach of the passenger, whether open
or closed, including the glove compartment
This does not include the trunk of a vehicle
Court finds Chimel rule or area within the immediate control of the arrestee too broad
where policemen did not know the scope of their authority and a person could not know
the scope of his constitutional protection; therefore, all the area in the car is area within
his immediate control even though it may be physically impossible.
Belton is a real reach case - The officers here could have relied on plain view to establish
probable cause. See Carroll v. United States case
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probable cause. See Carroll v. United States case

Atwater v. City of Lago Vista
Case Notes from Atwater
Facts
Atwater was pulled over by officer for not wearing seat belt, with two unbuckled kids in
car, and he yelled weve met before. youre going to jail
Officer arrested her after Atwater could not give license and insurance
Was booked and put in the jail cell
Charged with seat belt violations, other charges dropped
Issue: Does the fourth amendment allow officers to make warrantless arrests for
misdemeanors? Yes
Reasoning:
A hard line rule would create a case by case analysis in the field and this is not how the
4th Amendment is usually applied
A statutory amendment makes more sense than a 4th Amendment addition, if the
state code does not exclude your activity as a non-arrestable offense then you can be
arrested (and searched)
The arrest was not made in an extraordinary manner
Extraordinary - the manner in which the search and seizure is executed
Thorton v. United States
Case Notes from Thorton
Previous Case
New York v. Belton
When a policeman has made a lawful custodial arrest of the occupant of an
automobile, he may, as a contemporaneous incident of that arrest, search the
passenger compartment of that automobile.
Facts:
Officer noticed a car trying to avoid him. Office ran plate and found the plate did not
match the car.
Officer followed car. Thorton exited the car and the officer stopped him while walking
away from the car. Thorton agreed to a pat down. Officer found marijuana and Cocaine.
Officer arrested Thorton and then searched his car where he found 9mm gun under the
seat
Procedural history
DC denied motion to suppress firearm
COA 4th Circuit affirmed DC decision
The Supreme Court - granted cert
Issue: Is Beltons rule limited to only instances where the police officer makes contact with the
suspect inside his vehicle?
Holding: No, there is no basis to conclude that the span of the area generally within the
arrestees immediate control is determined by whether the arrestee exited the vehicle at the
officers direction or whether the officer initiated the contact with him while he remained in the
car.
Reasoning:
An officer may search a suspects vehicle under Belton only if the suspect is arrested
recent occupants - a case may turn on the suspects temporal and spatial relationship to the
car. Court did not answer this though.
The need for a bright line rule that can be easily understood by officers justifies the fact
that in both Belton and this case the suspects could not reach into the passenger
compartment from where they were.
Concurring - Scalia
Defenses dont make sense - search ok simply because officer may find evidence related
to the crime
Dissent:
Persons privacy interest are greater than the potentially valuable evidence
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 Persons privacy interest are greater than the potentially valuable evidence
Arizona v. Gant
Case Notes from Gant
Facts
Defendant was arrested 10-12 feet away from car for driving with suspended license,
handcuffed and locked in police car
Officers searched car and found cocaine in the pocket of a jacket on the backseat
Holding
The Chimel rule only authorizes police to search a vehicle incident to an arrest when the
arrestee is 1) unsecured and within reaching distance of the passenger compartment
at the time of the search.
2) Reasonable suspicion about evidence in car that is related to the offense
Reasoning
Gant was not within reaching distance when arrested
He was arrested for driving with suspended license - no evidence to be found in car.
Although vehicle privacy is less than home privacy, it still deserves constitutional
protection
This decision was split - Gant artificially narrows the Belton/Thornton rules, but they still
apply
Dissent - Breyer
Belton is a bright-line rule, there needs to be a new rule but the burden to change it has
not been met yet.
Dissent - Alito
The first part of the new holding makes it a case by case analysis if the arrestee could
reach the passenger compartment or not (Belton tries to avoid this)
Louisiana Cases
State v. Hernandez
Facts
Defendant was arrested in his driveway when exiting his parked car for DWI and reckless
operation. Police had been following.
Police called tow truck to take truck away. Officer walked back to car and saw marijuana
cigs through the car windows. Evidence was seized.
Reasoning
Comparison to Belton
The officer did not search the car incidentally to the arrest, came well after
The rule has no application after the arrestee has been handcuffed and removed
from the scene
Justification was to prevent access to evidence and weapons
LA rejects Belton - if they followed Gant this search may be good
When a custodial arrest is made, the arresting officer may conduct a prompt, warrantless
search of the arrestees person and area within his control from which he could gain
possession of a weapon or destructible evidence
State v. Warren
Facts
Hotel police was called for a knock and talk after suspicious activity
Police knocked, smelled marijuana, and viewed a bag of marijuana on table
Arrested Warren and made sweep of room, emptied duffel bag and found marijuana
Procedure
COA - the bag was outside the immediate area and control of Warren (Chimel)
Issue - Under Chimel, when is it appropriate to search a sealed package within the premises
after a lawful arrest?
Reasoning
The search was based on exigent circumstances because the officers did not know when
the other hotel occupants were going to return and they wanted to investigate the bag to
avoid a violent conflict
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avoid a violent conflict

Difference between this case and a hot pursuit exigency? Police created the exigency...
they could just knock on every door and see if there is a reason to investigate.
State v. Sherman
Facts
During a drug investigation, officers saw defendant with his motorcycle partially on the
shoulder (maybe blocking the roadway).
Officer asked Sherman for drivers license and he said he did not have it
You cannot be arrested for not having license on person, only if you dont have on at
all. The officer is supposed to inquire whether he has one at all.
This probably wouldnt lead to exclusion => exclusion is related to violation of
privacy
Officer reached inside his pocket and found crack => arrested
Issue - was the warrantless search authorized by search incident to arrest, when the defendant
was not arrested for the offense for which probable cause existed?
Holding - even though the search preceded the arrest, probable cause to arrest implicitly gives
the power to search.
State v. Breaux
Facts
Evan is pulled over for speeding. While talking a 2nd officer pulls up and searches his
car and finds beer can.
2nd officer reaches into Evan B.s pocket and finds marijuana
Issue - whether a temporary detention of a person for traffic offense justifies a full search of his
person? No, this is an unreasonable search
Reasoning:
A Louisiana motorist does not by entering his vehicle lose at the shim of a traffic
policeman his constitution;s protection of his person against unreasonable searches
Searches incident to lawful arrest are an exception to the protection from warrantless
searches. Need exigentency
No custodial arrest. Officer with probable cause issued summons instead of arrest.
Field Detentions for Investigations and Related Searches
Book Notes from Terry Stops
Terry v. Ohio - established that the 4th amendment permits certain police conduct based on less than
probable cause
Split between stops and frisks
Stops - seizures of suspects for purposes of questioning or other investigation - for an
crime
Frisks - searches to locate weapons to prevent suspects from harming investigating
officers - need reasonable or articulate expectation that they are armed and dangerous
Open palms down the exterior of the clothing
To Remove Weapon - need probable cause from plain feeling of a weapon being
there to pull the weapon out
The idea behind Terry is that the exclusionary rule bars violations of the 4th amendment in
gathering evidence, police activity based on less than probable cause would be for safety
reasons instead
Florida v. Royer
Book Notes from before Royer
Reasonable Suspicion
Post-Terry cases have defined reasonable suspicion as the standard for Terry stops
Reasonable suspicion v. Probable cause
Reasonable suspicion is a less demanding standard.
It can arise from a lower quantity, lower content, or less reliable information
than probable cause
Tip + Officer Corroboration = Reasonable Suspicion
Tips that involve future behaviors are very strong.
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 Tips that involve future behaviors are very strong.

Reasonable Suspicion Examples
Reasonable Suspicion Existed
Adams v. Williams - officer received information from an informant. The only
previous experience with the informant did not result in confirmation nor
arrest. This was reasonable suspicion and was stronger than an anonymous tip.
Alabama v. White - an anonymous tip predicted a suspects future behavior about
driving to a hotel in a certain car. It was reasonable for police to rely on this
because the informant was clearly privy to the individuals itinerary.
United States v. Arvizu - officer stopped a minivan driving on a remote, unpaved
road and found marijuana. The Supreme Court said that reasonable suspicion
factors do not have to outweigh an innocent explanation individually. Taken
together, they must form the basis of the stop.
Reasonable Suspicion did not exist
Brown v. Texas - A person looking suspicious standing in a known drug
trafficking alley was not reasonable suspicion because the officer didnt have any
facts to back up his basis for criminal conduct
Airport Stops and Profiles
Reid v. Georgia - barebones testimony that a passenger meets a drug carrier profile is not
reasonable suspicion
Florida v. Rodriguez - passengers being evasive and objectively suspicious may meet
reasonable suspicion standard
United States v. Sokolow - traveling under an alias, purchasing a ticket in cash, and trip to
a drug source city does not fall under the Reid category, but observations that establish
reasonable suspicion to a trained officer
Possible Limits on Suspected Offenses
Adams v. Williams - an officer stopped suspect for possession of drugs and possession of
a prohibited weapon. The court urged that stops should not be permitted for possessory
crimes because frisk that would be incident to the stop, would be the primary reason for
the stop
Reasonable Suspicion Concerning Past and Future Offenses
All cases before Hensley involved officers intervening during the criminal activity
Past Offenses: United States v. Hensley - Are stops based on reasonable suspicion of a
crime committed in the past permissible?
The factors of crime prevention and exigency dont seem to be reasonable with past
crimes
However, the stop was permissible, but the court seemed to draw the line
at felonies
Future Offenses:
Terry - three men engaging in activities that appears to be suspicious to officer
(looked to be casing a job). The officer feared that the men had a gun. He stopped
them and patted down Terry after Terry mumbled something. Found a
pistol. Ordered the men into store and patted down all men.
The standard for future crimes is uncertain
Consideration of Race
United States v. Montero-Camargo - Race can be used as a factor to justify a stop, but not
the sole reason
Case Notes from Royer
Facts
Royer was observed by officers at airport to exhibit appearance, mannerisms, luggage,
and actions that fit a drug courier profile
Officers stopped Royer and Royer presented ID with his name but ticket with the name
Holt. Officers informed him of suspicion and brought him to room.
Officers brought luggage to room, Royer consented to luggage search, marijuana found
Royer was arrested
Holding - The bounds of a Terry stop were exceeded in this airport stop
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 Holding - The bounds of a Terry stop were exceeded in this airport stop
Reasoning
The encounter was not consensual
The asking for ID was not being held against will, but the transportation to the room
was
Officers did not indicate that he was free to leave
The detention went beyond what is allowable on reasonable suspicion
The request for identification, ticket, and temporary detention was justified by the
circumstances - officer had reasonable suspicion
However, the taking of Royer to the back would have given a reasonable person the
impression that they were not free to leave = seizure
In effect, Royer was under arrest when he was brought to the room
Officers kept his ticket and ID
No reason to transfer the conversation from the public to a private room
The luggage could have been searched in a more expedient way
A negative dog sniff test would have freed Royer in a short amount of time
Book Notes from Royer
Movement of the Suspect
Dunaway v. New York - less than probable cause for robbery-murder. Police picked up
suspect, brought him to interrogation room and questioned him. Was ruled to be
indistinguishable from an arrest. Affirmed in Hayes v. Florida
Stationhouse Detentions on Reasonable Suspicion
Davis v. Mississippi - stationhouse detentions for fingerprints might be
permissible. Process is not intrusive into private life. The permanence of fingerprints
does not make it an inconvenient time conflict.
Kaupp v. Texas - although certain seizures may be justified on less than probable cause, a
suspect cannot be involuntarily removed from his home to a police station for
interrogation without probable cause
Length of the Detention
20 minutes is the model penal code
United States v. Place - a 90 minute luggage detention made the seizure unreasonable
United States v. Sharpe - no hard line rule for time, did the offices diligently pursue a
means of investigation that was likely to confirm or dispel suspicions quickly.
most likely 20 to 30/40 minutes
Investigatory Detentions of Items
United States v. Place - officers took a bag to based on reasonable suspicion but let the
suspect go. Seizures of items can be made upon less than probable cause.
Illinois v. Wardlow
Case Notes from Wardlow
Facts
On a patrol in a high traffic narcotics area, officers saw Wardlow with an opaque bag
Wardlow started running. He was stopped, patted down, felt a gun and was arrested.
Frisk is not at issue (belief that suspect is armed and dangerous to frisk). The stop is what
is at issue.
Reasoning
Unprovoked flight upon noticing the police is a factor to consider in determining
reasonable suspicion
Flight is not going about ones business
Known drug neighborhood, nervousness and evasive behavior (flight) are a
pertinent factors in determining reasonable suspicion
An officer can detain the individual to resolve the ambiguity and determine if there
is an innocent explanation
Terry stops carry the risk of stopping innocent people, but the stop is much less intrusive
than arrests
This allows the officer to learn facts that can rise to probable cause, if not then he is
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 This allows the officer to learn facts that can rise to probable cause, if not then he is
free to go
Do people who live in better neighborhoods have better protection?
If you have something on your person at time of arrest it may be searched
Even if the officer leaves the scene - he may return to grab the bag
Hiibel v. Nevada
Case Notes from Hiibel
Facts
Police received an assault call and went to investigate
Officer found car that matched description on the mentioned street and two people
matching the call description inside the car
Officer asked Hiibel 11 times for his ID and Hiibel refused, so he was arrested
Issue
The 4th Amendment does not provide burden that citizens have to show ID when asked,
it is the state specific statute that does. Are these constitutional?
Holding:
A state law requiring a suspect to disclose his name in the course of a valid Terry stop is
consistent with 4th amendments prohibitions against unreasonable searches and seizures.
Only if the request to see ID must be reasonably related to the circumstances that
justify the Terry stop can a suspect be forced to provide an ID
Basically the police must have RS to ask for an ID
Any ID is okay - stating your name, license
You can refuse, but declining when the officer has reasonable suspicion can lead to
arrest
Reasoning:
Reasonableness of seizure (4th)
By balancing its intrusion on the individuals fourth amendments interest against
its promotion of legitimate governmental interest.
What about self incrimination (5th)?
The invocation of 5th must be for fear of using the information in criminal
prosecution. This is not the case here.
Weapons Searches
Minnesota v. Dickerson
Book Notes from before Dickerson
Sibron v. New York- The officer reached into the defendants pocket when he was reaching for
his pot. The court found that since the officer was not looking for a gun at the time, it was
unreasonable.
Case Notes from Dickerson
Facts
Officers on patrol see Dickerson come out of known crack house. He immediately turns
away after seeing police and goes in alley.
Police drive to alley and order him to stop and submit to patdown search. No weapons
found, but officers feel a small rock wrapped in cellophane. Turns out to be a crack
rock. Dickerson is arrested.
Issue:
Can officers seize non-dangerous contraband detected during a protective pat-down
permitted by Terry?
Holding:
Yes as long as the search does not leave the bounds of determining if suspect is armed.
Reasoning
Terry demonstrates the sense of touch is capable of revealing the very nature of an object
with sufficient reliability to support a seizure.
There must be probable cause after the pat down to seize any contraband.
This is an expansion of Terry - to say that you can seize anything unlawfully
possessed as long as it is immediately apparent.
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possessed as long as it is immediately apparent.

The police officer overstepped his boundaries by realizing there were no weapons in the
pocket and continuing to feel the crack rock (it wasnt immediately apparent as
contraband).
Upheld cases of immediately apparent:: feels like pills, bag of grass, and needle
Is there reasonable suspicion to stop Dickerson?
Look to Wardlow; Wardlow was evading the cops by running away
Dickerson began walking in the opposite direction. Is this evasive? The court
doesnt address this issue.
Is there reasonable suspicion to frisk Dickerson?
Drug crimes are typically involved with people carrying guns (this is argued)- Court
does not go there and draws the line at armed and dangerous (reiterated in another
case)
Book Notes from Dickerson
Grounds for Weapons Searches
Adams v. Williams - in a high drug traffic area, an officer asked the suspect to open the
door but he only rolled down the window. The officer was justified to reach in the
suspects waistband to check for weapons based on fear for safety.
Pennsylvania v. Mimms - officer noticed large bulge under suspects sports jacket when
stopped for traffic offense - large bulge permitted the officer to conclude Mimms posed a
serious and present danger to the officer safety. Valid Pat down.
Need to begin with a pat down
Adams v. Williams - the officer skipped the patdown and immediately reached into
waistband. No discussion by court.
Stop and Frisk on Suspicion of Carrying a Firearm
A stop shouldnt be based on carrying a firearm alone. The weapons searches in the
above cases are only for officers safety in the course of field work.
Firearm exception - corroboration of only the innocent details of an anonymous tip does
not give reasonable suspicion (Conflict with White?)
Difference between anonymous tips involving drugs and weapons: drug tips can be
waited out and investigated using controlled buys. Weapons wait outs can lead to fatal
consequences.
Florida v. J.L.
Case Notes from J.L.
Facts
An unknown informant called and reported that a black male was standing on a corner
with a plaid shirt and was concealing a gun
Two officers responded and found three black males, one of which, JL, had a plaid shirt apart from the tip there was nothing suspicious about the three.
Officers walked up and frisked JL, found a gun
TC: unlawful search; CoA FL: reversed; SCoFL: Reversed CoA FL finding unlawful
search. The Supreme Court certiori.
Issue:
Is an anonymous tip that a person is carrying a gun sufficient to justify a police officers
stop and frisk?
Holding
An anonymous tip must bear standard indicia of reliability in order to justify a stop
and frisk
Reasoning
Anonymous tip contained no predictive information that could verify the informants
veracity.
Have to judge the officers actions by whether or not they had R.S. before they conducted
the search, not after
With anonymous tips, you must confirm the veracity of the illegal actions, not just the
identity of the alleged perpetrator.
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identity of the alleged perpetrator.

Possible Exceptions to having to find the informant reliable
Reports of a person carrying a bomb
Reports of a person carrying a firearm in places where fourth amendments rights are
diminished - like an airport
Cited Cases
Alabama v. White - tip was proved credible since it predicted future movements of
White that police observed - White is the borderline case
Louisiana Case - same facts as J.L., different result (LA case 1979 - JL 2000)
State v. Jernigan
Facts
An anonymous caller informed police that a black man with a yellow shirt was in a
particular bar with a handgun
Police arrived and walked up to Jernigan, who was the only person in the bar with a
yellow shirt, and asked him to stand up and his was immediately frisked. Search
produced a handgun.
Issue:
Can an anonymous tip provide reasonable cause for a stop and frisk?
Holding
An anonymous tip can provide R.C. if the information received carries enough
indications of reliability and is corroborated by independent police work.
Reasoning
Must prove that BOTH the initial detention and frisk were justified for evidence to be
admissible.
Initial Detention
Ok since Jernigan matched the description, carrying a gun involves an
immediate danger to the public, and the situation was aggravated by the
alcohol.
Frisk:
Once lawful detention is made, a police officer is justified in frisking the
suspect for weapons under circumstances where he reasonably suspects he is
in danger of life or limb.
Different than J.L. because there are more corroborated facts
Traffic Stops
Knowles v. Iowa
Book Notes from before Knowles
Traffic Stops as a Distinguishable Type of Detention
Arizona v. Johnson - probable cause is not required; sometimes reasonable suspicion
suffices
Citations as Alternatives to Custodial Arrest
In many jurisdictions, the police has discretion in issuing a citation or making a full
custodial arrest
Other jurisdictions, limit authority to make full custody arrests in minor violations
State v. Jones - there must be a state interest to justify an arrest from traffic stops
Now addressed by Atwater v. City of Lago Vista
Multiple Functions of Traffic Law Enforcement
Careless, drunk drivers, and road rage
Patrolling reaches into cities plagued by gang activities, drug markets, and shootings
aggressive traffic law enforcement may further other law enforcement objectives.
Investigating behind the traffic ticket, sniffing out possible criminal conduct
Definition and Requirements of Traffic Stops
4th amendment prohibits random or suspicionless stops - there must be some basis for the
stop
Whren v. United States - probable cause needed to stop? Doesnt usually come up in
cases because the conduct occurs in front of the officer
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cases because the conduct occurs in front of the officer

Case Notes from Knowles
Facts
Knowles is stopped for speeding and officer issues citation rather than arresting him
Officer conducts full search of vehicle without drivers permission and finds marijuana
and paraphernalia, then arrests Knowles for possession of controlled subst.
TC: motion to suppress evidence is denied, Knowles found guilty; Iowa SC affirmed; the
Supreme Court grants cert!
Issue
Is a search incident to a citation permissible under the Fourth Amendment if the officer is
in no apparent immediate danger?
Holding
No. There must either be concern for officer safety or a risk of losing evidence
Reasoning
In United States v. Robinson, the court explained that the two traditional rationales for
search incident to arrest are
the need to disarm the suspect to take him into custody and
the need to preserve evidence.
This was a standard speeding violation. There must be at least a reasonable suspicion in
order to perform a pat down of the passengers, let alone a search of the vehicle
Book Notes from Knowles
Distinguishing traffic stops from arrests
If in Knowles, the officer had told him youre under arrest before conducting the
search, it would have been permissible. Iowa officers are apparently allowed to arrest,
search, and then say Nevermind the arrest. It all turns on whether the suspect is placed
under arrest.
Duration of Traffic Stops
Ohio v. Robinette - Where an officer made a traffic stop for speeding and only issued a
warning, the detention became unreasonable when Robinette declined to consent to a
search of a vehicle.
If questioning does not give rise to a reasonable suspicion, the officer cannot
continue to detain him.
the Supreme Court has never directly addressed how long is too long for a traffic stop.
Frisks of Automoblies
Michigan v. Long - Where an intoxicated driver is pulled over and a hunting knife was
seen in plain view, officers were justified when a patdown produced no weapons, but saw
something under the car armrest, had reasonable belief it was a weapon, and found
marijuana. The officers had reasonable belief that the suspect was dangerous, judging by
the circumstances. It was a legitimate Terry search.
search was limited to just the areas that Long had immediate control and examining
the pouch was okay since it could have contained a weapon
Removal of Driver and Passengers from Stopped Vehicle
Pennsylvania v. Mimms - An officer can ask a driver pulled over for a non-dangerous
traffic stop to step out of the vehicle because talking to the driver at his door poses a risk
that the officer will be hit by traffic. A patdown after seeing a bulge in the drivers jacket
was justified.
Maryland v. Wilson - Officers may also order passengers out of a car in traffic stops.
Even though the are not directly suspected of a crime, they may still be a threat to the
officers safety. (reiterated in Arizona v. Johnson, expanding to say that patdowns of
passengers are also allowed if RS of danger is present)
Arizona v. Johnson - all passengers in a vehicle during a traffic stop are seized, and the
seizure is reasonable
Weapon Frisks of Occupants
Arizona v. Johnson - Officers making a traffic stop may make patdown frisks of any
passengers as well as drivers, if the officers have reasonable suspicion that the person is
armed and dangerous.
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armed and dangerous.

Whren v. United States
Case Notes from Whren
Facts
Officers are patrolling high drug area of DC, and Whren is pulled over for probable
cause of traffic violation
Officer sees two bags of crack and arrests Whren
Whren moves to suppress evidence. TC convicts; Appeal affirms; the Supreme Court
grants writs!
Issue
Whether an officer can use a traffic stop as a pretext for a narcotics search
Holding
Yes. An officers subjective intention does not make otherwise lawful conduct illegal or
unconstitutional.
Reasoning
Ulterior motives are absolutely allowed. Its irrelevant whether a reasonably acting police
officer would have made the stop if he didnt think drug activity was present.
The decision to stop a car is always reasonable where police have probable cause to
believe theres been a traffic violation, no matter how small.
Book Notes from Whren
Pretext Motivation Under State Law
Some states may still hold pretextual stops to be unreasonable. State v. Ladson
(Washington) said that these stops would deprive drivers of their privacy because the
traffic code is so extensive, they could be stopped almost any time. Here, subjective
motives of the officer can be considered.
State v. DeSantiago - DeSantiago left a narcotics hot spot, officer followed him looking
for a basis to stop. Court looked at subject pretext motion and found the stop
unreasonable.
Illinois v. Caballes
Case Notes from Caballes
Facts
Caballes is pulled over for speeding
A second trooper overheard the transmission and immediately came over with a drug dog
While the first trooper was writing the ticket, the second walked the dog around, who
alerted the troopers of marijuana. Caballes arrested. Whole incident was less than 10
minutes
Trial judge convicts. IL SC reverses, holding there were no facts to justify the use of the
dog, and the scope of the routine stop was unjustifiably enlarged
Issue
Whether the Fourth Amendment requires reasonable suspicion to use a drug dog in a
legitimate traffic stop
Holding
No. The dog did not change the character of the traffic stop.
Reasoning
Any intrusion on privacy is not enough to be unconstitutional here. The dog only looks at
the exterior of the car.
Official conduct that does not compromise any legitimate interest in privacy is
not a search subject to the fourth amendment.
All the dog does is locate substances that would always be illegal to possess
Important note: Caballes detention was not prolonged due to the search. If they would
have made him wait for the dog to show up, the search would have been unreasonable.
People v. Cox
The fact that the dog can only detect the weed and not anything else is what makes the
search okay.
Dissent
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 Dissent
Dogs mess up more than we thought: Anywhere from 12 to 60% can be false IDs. A dog
should constitute a search, although the court has held it not to be. There was no
indication of illegal activity, so this would be an unreasonable search
This should be analogous to a Terry stop. The scope was expanded too much. Further,
Caballes is going to be embarrassed by a drug dog sniffing around when hes on a public
road
Book Notes from Caballes
People v Harris - An officer asked a passenger for identification in a routine traffic stop. The
passenger volunteered it, and he had an outstanding warrant. Upon arrest, the crack found in
his pocket was properly recovered. The nature of the stop was not changed by the questioning.
Louisiana Case
State v. Landry
Facts
Defendant was passenger in car that was pulled over for speeding
Officers asked driver and defendant to step out of car and display ID
Defendant had not committed a crime; no reasonable suspicion
Need to have reasonable suspicion to ask for id, Hiibel.
Officer ran defendant's ID, saw an outstanding warrant and arrested him
In the SIA, officer discovered cocaine on defendant
Previous Case
State v. Williams - over ruled in Landry
Officers stopped vehicle for a traffic offense and ordered the occupants out of the
vehicle
When the passenger got out, the officer noticed a sawed off shotgun
The court ruled that the ordering of the passenger out of the car for a minor traffic
offense was unconstitutional because the privacy rights outweighed officer safety
The ordering out of the car of the driver was constitutional
Issue is the evidence from the search of a passenger during a routine traffic stop admissible?
Holding Yes, it is reasonable for an officer to order a passenger out of the car during a routine
traffic stop and ask to see ID.
Reasoning
Rejects Williams (overrules) rule that traffic violations are less dangerous for police
Either the passenger or the driver poses a significant threat to the safety of officer
Could reach a weapon if remaining in the car
Very brief period of detention is only a slight inconvenience
The request to see ID was a limited additional intrusion that was not unreasonable
Important to determine if the men were dangerous under the circumstances - they
were stopped at night with two men in the car.
This may be unreasonable if they had stopped a lone man during the daytime on a
college campus
Dissent
The requirements should be
The safety of officers was served by the intrusions - not met
The intrusion was minimal
The search stemmed from some probable cause focusing suspicion on the individual
affected by the search - not met
Sobriety Checkpoints and Related Detentions
Michigan v. Sitz
Book Notes from before Sitz
Checkpoint purpose is to acquire reasonable suspicion to transform the encounter into an
individualized suspicion -then at that point if you acquire enough probable cause, I guess you
can make them blow.
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can make them blow.

Suspicionless stops (11 years before Sitz)
Delaware v. Prousse - Police cannot randomly stop any motorist just to check if they
have a valid license and registration. This is suspicionless and unreasonable. The
foremost method of enforcing traffic and vehicle safety is acting on observed violations.
The opinion stated that this does not exclude less intrusive methods such as questioning
all incoming traffic with a roadblock
Case Notes from Sitz
Facts
Michigan police set up sobriety checkpoints
All cars are stopped, and average delay is less than a minute
1.5% of drivers were arrested for DWI
Sitz challenges the stop as a Fourth violation
TC rules it violated Fourth; Appellate affirms; MISC refuses application for writs; the
Supreme Court granted cert
Issue
Whether the seizure of a sobriety checkpoint is intrusive enough to constitute a Fourth
Amendment violation
Holding
Nope. The states interest in furthering the goal of highway safety outweighs any
marginal intrusion upon the drivers
Reasoning
Although only a few are arrested, this is still effective in comparison to illegal alien
checkpoints in Texas (United States v. Martinez-Fuerte).
The seizure is reasonable because its so quick and hardly intrusive
Dissent
Theres gotta be a better way!
This is a surprise to drivers, and thats unjust. It causes unneeded distress on drivers
City of Indianapolis v. Edmond
Case Notes from Edmond
Facts
Police set up a check point with the purpose of discovering narcotics
Checkpoints are identified with signs, and a predetermined number of cars are stopped,
and a drug dog walks around the car (this is not a search)
Checkpoints result in a hit rate of 9%, and last 2 or 3 minutes
Issue
Whether narcotics checkpoints are permissible under the Fourth Amendment
Holding
No, because the primary purpose is to uncover only evidence of ordinary criminal
wrongdoing
Reasoning
The general interest of crime control is insufficient and overly general. The
purpose is too vague.
In general crime control, there must be justification for the stops based on a
quantum of individualized suspicion
Exceptions: terrorists or escapees in the area, huge danger to the public
The presence of the dog sniff is one of the main oversteps (you cannot presuppose a
quantum of individual suspicion)
Public intrusion is greater in this case than any government interest served
Book Notes after Edmond
Information-seeking highway stops can be used to stop a drunk driver. In Illinois v. Lidster,
police were asking passing cars for help in an investigation, and a drunk driver sped through
and nearly clipped an officer. These stops are less intrusive and unlikely to provoke anxiety.
People want to help investigations as responsible citizens.
Louisiana Case
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 Louisiana Case
State v. Jackson
Facts
Officers are conducting an insurance checkpoint when they see Jackson backing up in
traffic to avoid the checkpoint. He could not turn around so he pulled over and started
walking.
The officer walked over asked for his drivers license. Jackson said that he did not have
one and officer saw on his computer that his license was suspended.
Arrested and in a search incident to an arrest, marijuana was found
Issue - whether the use of checkpoints to determine if vehicles contain proof of insurance
deprives the operator of 4th amendment rights? In this case, yes... guidelines below.
Previous Cases
State v. Parms - the DWI checkpoint was not constitutional because there was no
evidence of a plan for stops, it was in a location not likely to find drunk drivers, not much
success, and it was no more effective than random stops
State v. McHugh (distinguished from Church and Parms because of regulatory interest) hunters could be stopped for game limits when:
Compelling state interest
Special governmental needs outside the ordinary law enforcement context
A stop less invasive than arrest
No less restrictive means are available
Reasoning
The nature of insurance regulations resembles the situation in McHugh
Not within the realm of traditional police work
Regulation interest
Checkpoints in LA Constitution
The LA constitution usually provides more individual rights, but this situation is no
different from Article IVs language
Test: Balancing test of the states legitimate traffic interest w/ invasion of
privacy
Driving is a privilege that is subject to reasonable regulation
Guidelines of Neutrality (would a stop meet the 4th amend. and LA Const.?)
The location, time and duration of a checkpoint is established by supervisory
or administrative personnel, rather than field officers
Advance warning with signs and flares to provide official notice as a police
checkpoint
Detention of motorist for a minimal length of time
Use of a systematic, non-random criteria for stops
Pretext Motivation
Whren v. United States
Case Notes from Whren
Facts
Officers are patrolling high drug area of DC, and Whren is pulled over for probable
cause of traffic violation
Officer sees two bags of crack and arrests Whren
Whren is arguing that there should be a higher standard (reasonable officer test) than
probable cause for traffic stops because an officer could essentially pull over any one at
any time for probable cause of violating traffic regulations
Issue - whether the temporary detention of a motorist who the police have probable cause to
believe has committed a traffic violation is reasonable unless a reasonable officer would have
been motivated to stop the car by a desire to enforce the traffic laws.
Reasoning
The Supreme Court has never held that officers motives invalidates justifiable behavior
under the 4th Amendment and have even affirmed the opposite
Ulterior motives cannot strip legal justification

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 This objective approach would be subjective... the court would ask whether a
reasonable officer would have acted this way instead of looking to the actual officers
intent
The only cases that the balancing test should apply to is searches or seizures conducted in
an extraordinary manner
Unnannounced entry - Wilson v. Arkansas
Physical penetration of the body - Winston v. Lee
Notes after Whren
Pretext Motivation under State Law
State v. Ladson - rejects Whren to look beyond the formal justification of the stop and
look at the actual reason (totality of circumstances)
State v. DeSantiago - officers saw suspect leave drug hot spot and followed him waiting
for him to do something wrong. They got him on not using left lane to turn
properly. The stop was ruled unreasonable.
Arkansas v. Sullivan - allowed a pretext doctrine for arrests, NOT STOPS.
Relationship to Arrests for Traffic Offenses
Does Whren relate to Atwater v. City of Lago Vista (soccer mom arrested for a minor
traffic offense)? - Ginsburg thinks a traffic stop in order to pursue a drug trafficking
offense is pretty messed up.
Does or should Whren apply to law enforcement action not requiring probable cause?
United States v. Knights - Whren was expanded to searching a probationers residence if
there was reasonable suspicion. The court tried to expand Whren to all cases except
suspicionless stops at highway checkpoints
Effect of Announcement of Basis for Law Enforcement Action
Devenpeck v. Alford Police pulled over a man for impersonating a police officer, and found he was
illegally recording the conversation. The charge was dismissed, and the suspect
sued the officers for an arrest without probable cause.
There was no ground for that arrest (impersonating an officer), but the Supreme
Court said the police subjective state of mind is irrelevant, and he could be arrested
if he were guilty of any crime, regardless of how closely related it was to the
original intent of the arrest
If the police hadnt told him why he was arrested, he would have quickly found out
when he got to the magistrate anyway
"WARRANTLESS SEARCHES"
Administrative Inspections
New York v. Burger
Book Notes from before Burger
Keep administrative warrants separate from judicial warrants!!!
Administrative warrant requires authorization in administrative regulations from a
legislative statute
Probable cause for administrative warrant:
Public police power purpose (health safety)
Neutral criteria
Low intrusion
Business/home owner has notice of authority (includes criteria?)
Performed by non-police officers
Administrative Inspections and Searches of Licensed Premises
4th Amendment is not limited to traditional criminal investigation but is applicable to any
governmental activity meeting the threshold requirements of a search or seizure
Frank v. Maryland
Health inspectors had cause to suspect there was a violation in a
restaurant. Defendant was convicted and fined $20 for not allowing a search
Suggests that warrants are unnecessary for administrative inspections
This is not true (Camara v. Municipal Court)
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 This is not true (Camara v. Municipal Court)

Case Notes from Burger
Facts
Burger owned a junkyard that was an open lot with no buildings. Officers of the auto
crime division of the New York police department entered the junkyard to conduct an
inspection.
Search done to make sure the junk yards are following the rules and to deter the receipt of
goods
Issue
Whether the warrantless search of an automobile junkyard, falls within the administrative
search exception to the warrant requirements? Yes
Holding
An owner of a business has an expectation of privacy in commercial property, which
society deems to be reasonable
Colonnade-Biswell rule: Certain industries have such a history of government
oversight that no reasonable expectation of privacy could exist for a proprietor over
the stock of such an enterprise
The dealer enters into this business and accepts a federal license consensually
knowing that his records, firearms and ammunition will be subject to effective
inspection
Since the privacy interests of the owner were weakened and the government interests in
regulating certain businesses are higher, a warrantless inspection of commercial premises
may well be reasonable within the 4th amendment
Three criteria of Warrantless Inspection Exception of Regulated businesses:
Substantial government interest
Inspections must be necessary to further the regulatory scheme
Inspection program must provide a constitutionally adequate substitute for a
warrant
Time (during business hours), place and scope of the inspection must be limited for
appropriate restraints on the discretion of officers
Book Notes After Burger
Inspections and Searches Related to Arson Investigations
Michigan v. Tyler
Firemen do not need a warrant to remain in a building for a reasonable time that has
been burned to seize things to try and determine what or who caused the fire
Entries the next day are fine, but later entries need a warrant
Michigan v. Clifford
Seemed to reject Tyler by saying that no warrant is necessary for investigations
after fires if within a reasonable time. The right to enter is based on a contingent
event.
Flexibility of Administrative Searches
United States v. Knights
The defendant was on probation and was suspected of vandalism and the detective
searched his house for evidence. Knights had excepted a probation search
provision. Reasonable Suspicion is all that is needed for this search.
Cell Phones of Public Employees
City of Ontario, California v. Quon
A transcript from a message conversation of a pager from Quon, a swat member,
was reviewed. The Supreme Court upheld the district courts judgment for the
city.
Drug Tests with Law Enforcement Purposes
Ferguson v. City of Charleston
Pregnant women seeking medical care were- if suspected of cocaine use- given
urine tests for cocaine. This is not allowed, because of the connection with the law
enforcement to coerce the patients into substance abuse programs.
Drug Tests without Law Enforcement Purposes
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 Drug Tests without Law Enforcement Purposes

These are subject to even more relaxed 4th Amendment standards
Board of Education v. Earls
Upheld drug tests for high school athletes. Said since the results won't be turned
over to law enforcement, and assists in reducing the student's privacy to mere
insignificance
The Emergency Doctrine
Vale v. Louisiana
Book Notes from before Vale
Exigent circumstances (emergencies) are generally treated by courts as dispensing only with
the need for a warrant. The officer must still have probable cause to believe evidence or
contraband will be found by the search.
Case Notes from Vale
Facts
Officers who possessed warrants for Vales arrest proceeded towards his residence in an
unmarked car to start surveillance.
The officers observed Vale talking to someone in a car and were sure that a narcotics sale
had taken place. Officers started pursuit.
Vale walked quickly back into house after noticing police and officers placed him under
arrest.
The car driver (who the officers knew was an addict) placed something in his mouth, so
officers arrested him too .
Officers searched the home and found narcotics in a rear bedroom.
Issue: did the circumstances provide sufficient exigency to search the home? No
Reasoning
The LA SC found the search supportable because the offense involved narcotics which
could easily be destroyed before the police obtained a warrant
The LA SC reasoning does not apply because the officers knew that no one was present
in the home to destroy the evidence
Exceptions to warrant requirements:
Hot pursuit
Consent
Exigent circumstances (destruction of evidence or dangerous situation)
Book Notes After Vale
Minnesota v. Olson - The police heard a man say tell them im not here.The police then
entered an apartment to find the defendant hiding in a closet. The court said this was not
exigent, because it was not in hot pursuit, and therefore the officers needed probable cause to
believe the situation involved a risk of imminent destruction of evidence, the suspects escape,
or danger to police or persons inside or outside the dwelling. The crimes gravity and the
likelihood that the suspect is armed could be considered.
Hot Pursuit Situations
Warden v. Hayden - 2 cab drivers followed the armed robber of the cab company to a
residence. Police arrived at the residence within minutes. Supreme Court upheld the
validity of the entry because delay might have endangered the officers or others.
Securing Premises as Alternative to Searching
Rawlings v. Kentucky - officers detaining occupants of a house for about an hour pending
application for a warrant did so improperly
Crime Scenes
Mincey v. Arizona - crime scenes do not automatically create an exception to warrant
requirements
Distinguishing standard between voluntariness v. miranda
Police-Created Exigent Circumstances
Kentucky v. King - Police were looking for a drug dealer in an apartment
complex. Thought it was one apartment and were banging on the door and thought they
heard people inside the apartment destroying evidence. They kicked in the door to find
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heard people inside the apartment destroying evidence. They kicked in the door to find
three people smoking weed. The drug dealer was in the other apartment. Court ruled that
exigent circumstances existed.
Illinois v. McArthur - Police officers with probable cause that the defendant had marijuana in
his house, prevented him from going in his house for two hours while they got a
warrant. Detention was okay.
Brigham City, Utah v. Stuart
Consent to Searches
Schreckloth v. Bustamonte
Book Notes from before Schneckloth
If a search is carried out with consent provided by a person with authority to give it, the
evidence need not be excluded
Effective consent disposes with the 4th amendment need for warrants
Three major categories of consent
Words appearing on their face to consent to a search
The authority of the consenting person
The scope of authority resulting from particular consent
Amos v. United States - officers testified that they went to Amoss residence and told the only
person there, Amos wife, they had come to search the premises. She opened the door and the
officers entered and searched. The court said that this was okay and that Amos, through his
wife, waived his constitutional rights.
Case Notes from Schreckloth
Facts: Police stopped a vehicle because it had a burnt headlight and license plate light with the
respondent, Robert Bustamonte (the respondent), and they asked to search the vehicle.
Another passenger in the car gave permission, and the search produced stolen checks that were
entered into evidence against the Respondent.
Holding: Checks were admissible
Main issues in consent cases:
Consent - was consent properly given?
test to determine if a subject has voluntarily consented is to review the totality
of the circumstances.
Characteristics of the accused
Details of the interrogation
If the subject knows he or she has a right to refuse, it is a factor to be
considered, but that fact is not the sole consideration.
To waive a 4th amendment right the defendant must only be voluntary
To waive a 6th/5th amendment right the defendant must be both voluntary and
knowingly/intelligent.
Court: if a suspect asks the officer if he has the right to refuse the search, can the
officer can remain silent? No, the officer must answer the question. But if the
defendant does not ask the question the officer does not have to tell him.
Consent can eliminate the need for probable cause.
Authority - did the person have the standing to refuse the search of the car?
Rakas would say the brother who owned the car but was not in the car has no
standing, but right to consent?
Book Notes after Schneckloth
Consent from Person in Custody
United States v. Watson- the same analysis applies to consent given by an arrested person
Suspects Knowledge Search Would be Incriminating
United States v. Mendenhall - A girl is asked to do a search and she consents and hands
over the drugs. The court ruled that she acted voluntarily. the question, is not whether
she acted in her ultimate self-interest, but whether she acted voluntarily.
Consents During or After Traffic Stops
Ohio v. Robinette - The officer asked a question before he let someone go and then asked
to search the car and eventually found drugs. The court ruled that this was not consent,
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to search the car and eventually found drugs. The court ruled that this was not consent,
because the officer did not give any indication to the defendant that he was free to
go. The request for a search sounded like a condition that Robinette needed to abide by
to be released.
Consent Given During Bus Drug Interdiction Efforts
United States v. Drayton- officer does not have to inform parties of right to refuse the
search
Illinois v. Rodriguez
Book Notes before Rodriguez - Consent by Third Parties
United States v. Matlock
Officers searched a room in a house for evidence against the defendant. The defendants
wife gives them consent. The court ruled that this was valid consent because the
consent comes from someone who mutually uses the property and has joint access
for most purposes.
Case Notes from Rodriguez
Previous Case - United States v. Matlock - third party consent was legally sufficient
Facts
Rodriguez was arrested in his apartment and charged with possession of drugs. The
police were admitted into the apartment by a woman who told the police to search
there. The woman had lived there with Rodriguez for several months. She had a key and
kept calling it her apartment. No warrant
Issue: whether a warrantless entry is valid when based upon the consent of a 3rd party whom
the police, at the time of entry, reasonably believe to possess common authority over the
premises, but who in fact does not?
Holding: Yes, there is a reasonable belief of common authority exception => no extra
inquiry by the officer is required
rests on mutual use of the property by persons generally having joint access or control for
most purposes.
burden on state to prove
Still have to take into account the surrounding circumstance - i.e. search unlawful is
a reasonable person would doubt the validity of the person granting entry
Since Fischer moved out she did not have common authority to allow access.
Class Notes from Rodriguez
Three choices
Actual authority - the person actually has authority
Apparent authority - reasonable belief (this case) - she had the key - reasonable belief she
had authority to grant search
No authority
Book Notes after Rodriguez
Present and Objecting Occupants
Georgia v. Randolph - The defendant was in a heated divorce and he objected to a search
of his house for cocaine his wife alleged that he had. The wife then gave consent.
If the target of law enforcement interest is present and actively objects to a search, is third
party consent nevertheless fully effective?
No, the fact that the target of the search was not giving consent (and a person of
equal authority was giving consent) makes the search unreasonable. This would be
different in a hierarchy relationship of father, son.
Exceptions: she could have brought the drugs to the police office. Even if he would
have objected, consent would not have mattered since exigency principles would
have took over.
Florida v. Jimeno
Case Notes from Jimeno
Facts: officer overheard what sounded like a drug deal on a phone. Officer followed Jimenos
car and pulled him over. Told him that he believed that Jimeno had drugs and told him that he
did not have to consent to a search. Jimeno gave consent to search car. Found a bag on
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did not have to consent to a search. Jimeno gave consent to search car. Found a bag on
passenger side containing cocaine.
Issue: whether it is reasonable for an officer to consider a suspects general consent to a search
of his car to include consent to examine a paper bag in the car? Yes
Reasoning
A suspect may delimit his consent to a search as much as possible (search everything in
the car except the closed bags), but whatever an officer reasonably believes the scope of
the consent entails is valid
general consent is enough to search containers but not enough to search locked
items. i.e. locked brief case.
Searches and Seizures of Vehicles and Containers Therein
The Vehicle Exception
Chambers v. Maroney
Book Notes from before Chambers
Two reasons for vehicle exception
Society is more mobile
Less privacy in a vehicle than a home - periodic inspections and regulations. Subjective
prong of the public expectation of privacy.
Four theories to justify the search of a car:
Probable cause that car contain contraband or unlawful substance; Evidence of unlawful
activity - as broad as a warrant would allow,
Search incident to arrest of driver
Inventory searches and care taking search
Caretaking search without impoundment
Cant have an inventory search without impoundment
United States v. Carroll - Prior knowledge about an automobile caused officers to stop it and
found bottles of alcohol inside (during prohibition). Court said that highway travelers are free
from searches unless there is known probable cause that vehicles are carrying contraband.
There is an exigency with the car, because the car was stopped on an open road. This is due to
cars being able to be moved easily. They ripped open the seats and did basically anything they
wanted to in order to find the alcohol. Can search as broad as a search warrant could authorize.
Case Notes from Chambers
Facts
Officer spotted a car that matched description of suspected robbery car.
Defendant was arrested and car was impounded and searched at station.
Found guns and evidence from robbery.
Issue: whether evidence is admissible when police arrested the defendant, then searched his car
at the police station?
Reasoning
Had probable cause to stop and arrest
Did not have probable cause for search; This is not a search incident to arrest
The mobility of a car weakens the need for warrant requirements
If there is probable cause of criminal evidence and the vehicle can leave jurisdiction
of the police, there can be a warrantless search
Book Notes after Chambers
Pennsylvania v. Labron - Pennsylvania fights with the Supreme Court. The Supreme Court
says that if a car is readily mobile and probable cause exists to believe it contains contraband,
the 4th amendment allows the search. Pennsylvania says our state constitution provides greater
protection to possessions, so the police need probable cause and exigency
What Vehicles are Subject to Search?
California v. Carney - a mini mobile home is within the exception. It was licensed to
operate on public streets and was subject to extensive regulation. They said this this falls
under the car exceptions. If they are on blocks, or basically being a house, it will be ruled
under a house
Vehicles Parked in Public Places
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 Vehicles Parked in Public Places

Carney - just as long as it is readily capable of such use and not found in an area used for
residential purposes
California v. Acevedo
Book Notes from before Acevedo
United States v. Chadwick - officers can seize a container but not search until they obtain a
search warrant. How does this apply to vehicles? Chadwick will probably not survive
Chambers or Acevedo The bad fact is that they waited till the defendant got to the car.
New York v. Belton - search of containers in vehicles incident to arrest was ok
Arkansas v. Sanders - officers had probable cause that a man getting off a plane had marijuana
in suitcase. He was stopped several blocks after he put his suitcase in the taxi at the
airport. The warrantless search was unreasonable because the mobility of the suitcase was not
an issue after it was seized. This has been overruled. The Supreme Court precursor to
Acevedo
Case Notes from Acevedo
Issue: application of the automobile exception to a closed container in the trunk of a car
Police, in a search extending only to a container within an automobile, may search the
container without a warrant where they have probable cause to believe that it holds
contraband or evidence.
Facts
There is a controlled delivery from a police officer in Hawaii to a police officer in
California. The Hawaii officer confiscated it and told the California officer what was
happening. The California officer allowed the dealer to pick it up and they followed
him.
Officers had probable cause to stop a man for purchasing marijuana.
Acevedo got into his car with a bag. Police stopped him and searched the bag in the
trunk.
Reasoning
Forcing officers to search the entirety of the car after coming across the container and not
opening further infringes on privacy than just opening the container when it is found
The Supreme Court uses the Ross rule: scope of a warrantless search is defined by
object of the search and the places where there is probable cause that the item may
be located
In this case, there would not be probable cause to search the whole car, because the
officers saw the bag was placed in the taxi trunk (Probable cause to search a container
does not give the police probably cause to search the entire car)
Book Notes after Acevedo
Containers belonging to passengers
Wyoming v. Houghton - the search of any containers within a car during a vehicle search
exception are reasonable, no matter ownership. The contraband could be placed in the
passengers container by the suspect.
If there are a group of people, and drugs are found in the car. There is probable cause for
everyone to be arrested in the car, until it is determined who was the owner of the drugs
A locked brief case w/ initials- would be different?
In the trunk- Does probable cause to search the car include the trunk (if you can rip out
the upholstery(Carroll), you can definitely search the trunk)
You could also search a u-haul trailer that is being pulled (if you can search a trunk
you can probably search the u-haul)
But, not a car in a caravan and most likely not a car being towed (the other person
in the car being towed is another enclave of privacy).
Colorado v. Bertine
Book Notes from before Bertine
Inventory Inspections of Seized Autos
South Dakota v. Opperman - the 4th allows some inventory inspections of impounded
autos. The officer noticed numerous personal possessions and he collected them for
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autos. The officer noticed numerous personal possessions and he collected them for
inventory. Found marijuana in the unlocked glove compartment. Inventories pursuant to
standard police conduct are reasonable.
A proper inventory can be tainted by an invalid seizure of the vehicle.
Seizures or impoundments of Autos
Cooper v. California - when officers have probable cause to believe that an auto can be
seized under judicial provisions, it can be held until the completion of the proceedings
Reasons for impoundment: stolen instrumentality, investigation, public police power,
traffic hazard
Just because the driver is taken into custody, does not justify impoundment
Case Notes from Bertine
Facts: Bertine was arrested for driving under the influence. Before the tow truck took away
Bertines car, an officer inventoried it and found drugs in a closed backpack
Issue: does the 4th amendment prohibit the State from using the evidence that was obtained
during an inventory search of a van? No
Reasoning
Officers could have impounded or parked and locked the car
The police followed standardized procedures in good faith and acted without suspicion of
criminal conduct
Officers are not required to decide if there is a less intrusive manner to proceed, just if it
is authorized by the 4th
Book Notes after Bertine
Required Standardized Procedures
Florida v. Wells - officers examined a suitcase in an impounded car
Absent a policy that justifies the opening of closed containers, the instant search
was not sufficiently regulated to meet the 4th
Louisiana Cases
State v. Jewell (overruled)
Facts
Jewell arrested for obstructing the highway with his car. Officers decided to take custody
of the vehicle and started an inventory search. Found a bottle containing PCP powder.
Issue: may warrantless police constitutionally enter an auto they have taken in custody for
reasonable cause, in order to inventory the contents for safeguarding, pursuant to a reasonable
scope?
Holding: True inventory searches of vehicles do not offend LA Const. Art I, Section 5
Reasoning
However, this case was not a true inventory search - were searching for incriminating
evidence, so this is in violation
No standard forms were completed for future reference
No place for storage of the vehicle was maintained
Not formally impounded
The evidence was found inside an aspirin bottle, which should not contain anything
of value for police to inventory
States alternate theory: search incident to arrest cannot stand because the suspect was
well under control outside of his vehicle, and his crime did not give probable cause to
search the vehicle
INTERROGATION AND CONFESSIONS
The Requirement of Voluntariness
Colorado v. Connelly
Book Notes from before Connelly
Terminology
Confession - a statement admitting or acknowledging all facts necessary for conviction of
the crime charged
Admission - acknowledgement of one or more facts that tend to establish guilt but not of
all elements of the crime
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all elements of the crime

Exculpatory Statements - at the time it was made, was intended to exculpate rather than
incriminate the speaker, but is later used to prove the speakers guilt
Basic Issues and Policy Considerations
When should a confession be excluded as a means of deterring law enforcement
behavior?
When should a confession be excluded because it was given in circumstances that make
its use unacceptable?
A major objective of the law of confessions should be assuring that a person who
confesses does so with as complete an understanding of his tactical position as possible
Requirement of Corroboration
Corroboration - the prosecution must prove guilt beyond a reasonable doubt by producing
evidence other than an out-of-court confession by the defendant
The evidence need not prove the factors of the crime, but is used together with the
confession
The Requirement of Voluntariness
Schmerber elements to challenging a confession
Communicative + Compulsion (be a witness against himself applies both during
trial and pre-trial)
Testimony
What values does the fifth amendment support?
government bears the burden of proving each element of the crime without your help.
Bill of rights were put together to protect you from government overreaching
Overbearing of the Will
Whether a coerced confession occurs is determined by a totality of the circumstances
analysis. Can be physical or mental coercion.
A confession to be admissible must be made by free choice.
Blackburn v. Alabama- the court stated that coercion can be mental as well as physical
and the blood of the accused is not the only hallmark of an unconstitutional inquisition
In cases lacking overt brutality, the Court has applied a totality of circumstances
Greenwald v. Wisconsin - The defendant was not fed or given his medicine. He
confessed because he knew they werent going to leave [him] alone until [he] did. The
Supreme Court said that the totality of circumstances said the statements werent a
product of free and rational choice.
Factors in totality of circumstances voluntariness of confession:
Withholding food, medicine
Police jail held for 12 hours
Deception
Threats
Promises
Awareness of constitutional rights
Isolation of the suspect
The number of police involved in interrogation
Education and mental capacity (more susceptible)
Police coercion (physical)
Promises
The Traditional requirement of voluntariness mandated exclusion of a confession
obtained as a result of a promise or inducement, made by a person in a position of
authority, concerning the criminal charges to which the defendant confessed.
Arizona v. Fulminate - The defendant was a prisoner who started to receive rough
treatment from prisoners. Undercover agents offered to protect him if defendant told
them about the murder. A totality of circumstances analysis showed that the confession
was not voluntary, but it was a close call. The fear of physical violence caused him to
confess in exchange for safety.
Deception
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 Deception
Deception can be used in some jurisdictions, as long as the deception does not amount to
a deprivation of due process
Commonwealth v. Graham - officer acted as a witness who pointed out man in
lineup. Did not render the confession inadmissible.
People v. Everett - an officer misrepresented to a murder suspect that the victim was not
dead and subsequently identified the defendant as the assailant. The court found no
aggravation of the sort necessary to violate due process.
Frazier v. Cupp - officers told defendant that his co-accomplice had confessed, defendant
made a statement. No violation of due process. Defendant had received partial warning
of rights and was of normal discernment.
Burden of Proof
If the prosecution offers a confession against a defendant, the prosecution must prove the
voluntariness of that confession
Lego v. Twomey - Voluntariness is only a preponderance of the evidence. States can
impose higher standards.
Harmless Error
Admission of an involuntary confession is never harmless error.
Case Notes from Connelly
Facts
Defendant walked up to officer and said that he committed murder and wanted to talk
about it. Officer immediately gave Miranda rights, but defendant still wanted to talk.
Defendant denied being influenced by any substances or any duress.
When being questioned the next day he started acting crazy and was found incompetent,
but condition did not impair his cognitive abilities.
Issue: was the confession voluntary? Yes, it can be admitted
Reasoning
Suppressing the confession would have no deterrent effect because defendant approached
the officer and it was outside the scope of police misconduct
Distinction between statement with Miranda warnings and statement of showing the
scene of the crime
To waive your trial rights State has to show that defendant is both voluntary and
knowing (understand rights) by preponderance and must show that warnings were
given and that there was sufficient understanding demonstrated.
Book Notes after Connelly
Relevance of Accuracy
The accuracy of a particular confession is irrelevant to its due process voluntariness
Rogers v. Richmond - the police said they were bringing the defendants wife in for
questioning. He confessed. Court said this was okay, because this statement was not
likely to produce a false statement. The Supreme Court overruled and said that the law
enforcement officials behavior was such as to overbear petitioners will to resist.
Violation of Prompt Presentation Requirements
Presentation of an arrested person before a court officer to minimize the opportunity for
coercive or otherwise improper interrogation techniques
McNabb v. United States- justifies exclusion for violation of prompt presentation
requirements
Violation of 4th Amendment Right to Probable Cause Determination
Gerstein v. Pugh - An unindicted defendant arrested without a warrant has a 4th
Amendment right to a prompt judicial determination of probable cause
Riverside v. McLaughlin - promptness generally requires probable cause determinations
to be made within 48 hours of arrest
Civil Liability for Coercive Questioning
Chavez v. Martinez - Officer questioned defendant while on the way to the emergency
room. Mere use of compulsive questioning does not violate the fifth amendment... only
when it is used in trial is when there is an issue.
Overbearing of the Will in Aggressive Interrogation Situations
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 Overbearing of the Will in Aggressive Interrogation Situations

State v. Petitjean - Officers convinced the defendant to cooperate by saying that he could
get off for self defense. Was not coercive because promises were conditional and
tentative. The suspects incapacity to understand the consequences was affected by
factors other than the promises.
Challenging a confession
There is a hearing in trial - Jackson v. Denno
Court has to prove why it is voluntary and complies with Miranda
2 bites at the apple, when the jury comes back, you can do it again (Crane v. Kentucky)
Louisiana Cases
State v. Glover - completely different than Connelly
Class Notes
What parts of LA Const. parallel the fifth amendment?
Section 13:
Even if Miranda was overruled, it would still be required in LA
Right to counsel is the same
Section 16
Innocent until proven guilty
no person may be compelled to be a witness
Facts
A woman was raped and killed and police received anonymous tips that Glover
committed the crime. Glovers wife was one of the tips.
Officers wiretapped Glovers wife so she could talk to him and they could
eavesdrop. Glover told his wife that his friend killed the girl.
Was arrested and Glover made a statement about his friend who killed the girl. Glover
then IDd his friend by photo. He then offered to bring them to where the girl was
killed. Later Glover admitted to the crimes.
Issue: did the s mental illness (skitzo) preclude his statement from being voluntary? Yes
Reasoning
Defendant bears the burden of proving that there is a mental abnormality
If the defendant fails to prove the mental abnormality, the State must prove beyond a
reasonable doubt that confession was voluntary
Three goals of voluntariness:
Ensuring that convictions are based on reliable information
Schizophrenic people such as Glover could have times of clarity and times of
fantasy, so deciding which statement was reliable would be difficult
Deterring improper police conduct - nothing improper about this case
Assuring that confession is product of free and rational choice
State v. Rankin
Aggravated assault where the defendant appeared to be drunk, irrational and confused but
officer still gave Miranda warnings
The court found that the intoxication rendered his understanding of the Miranda rights to be
involuntary
Self-Incrimination and Mirandas Right to Counsel
Miranda v. Arizona
Case Notes from Miranda
Facts
Miranda was arrested and taken in custody to a police station. He was identified by a
witness at the station.
Miranda was interrogated by two cops and they did not advise him of attorney
privilege. The officers emerged with a written statement that was voluntary.
Issue: whether the 5th is applicable during a period of custodial interrogation
Holding: Prior to any questioning, the person must be warned:
That he has a right to remain silent
To inform the person of the right and cross the intelligent threshold of
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 To inform the person of the right and cross the intelligent threshold of
voluntariness
This can be raised at any time
That any statement he makes may be used against him
The consequences of waiving the right
Right to the presence of attorney, retained or appointed
Helps to curb coercion and ensures an accurate statement
Failure to ask before the interrogation does not waive the privilege
Defendant may waive these rights if done voluntarily, knowingly and effectively
Any evidence that indicates the person was tricked into waiver, makes it ineffective
If he indicates that he does want to talk to an attorney, there will be no questioning
If he is alone and indicates that he does not wish to be interrogated, no questioning
Book Notes after Miranda
Right to Attorney Cases before Miranda
1963 - Powell v. Alabama - The right to counsel (6th) is effective when requested
1963 - Gideon v. Wainwright - right to counsel applies to both misdemeanors or felony
1964 - United States v. Massiah - after proceedings have begun and the defendant asks
for an attorney, the police cannot go around the attorney and question defendant
1966 - Miranda - Experts thought they were going to say one of the following (most
likely one of the first three)
As a defendant you have a right to counsel at arrest, and that a lawyer could inform
you of your rights or
The court could inform you of your rights or
Providing defendant with an ombudsman, a lawyer that is always at the station
The police officer could inform him of his rights
This is the worst for the defendant, therefore, could be seen as limiting
commonly called the Miranda Paradox - why would an investigating officer
inform you of your rights? Conflict of interest
Burden of Proof
State must prove that Miranda warnings were given and that the warnings were
understood
Terminology of the warnings
You can vary it as long as it contains the central message, there are no magic words.
California v. Prysock - 16 year old suspect was warned and questioned in presence of his
mother. The Supreme Court said that Miranda is not some a talasmanic incantation, and
that it can be varied some. However, warnings might be inadequate if the reference to the
right to counsel was linked with some future point in time after the interrogation.
Duckworth v. Eagan - A police officer gave a semi confusing Miranda reading. The
court ruled that even though it was difficult, it was valid. They do not have to have
lawyers on call, therefore, the if and when you go to court statement the officer made was
valid.
Florida v. Powell - An officer failed to mention the right to have an attorney in the
interrogation room, just that he could speak with one before interrogation. The miranda
warning was ineffective.
Warning efforts frustrated by the Suspect
United States v. Patane - the officer started to Mirandize the offender, and before he
could finish, the defendant said he knew his rights and the officer stopped the
statement. This rendered the plaintiffs statements inadmissible.
Impeachment Use of Confessions Violating Miranda
Harris v. New York - violations of Miranda warnings could bar the use of confessions in
any type of situation. Nevertheless, the court said that it could be used to impeach the
defendant when he took the stand at trial and testified in a manner inconsistent with the
statement
Oregon v. Hass- The defendant was arrested and Mirandized. Hass said he wanted to call
a lawyer but officers kept questioning until he made incriminating statement. This was
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a lawyer but officers kept questioning until he made incriminating statement. This was
used against him at trial, to impeach him. The Supreme Court found no violation of
using statement.
Mincey v. Arizona - reaffirmed Harris
Use of Suspects Silence
Doyle v. Ohio - silence after Miranda warnings cannot be used, even for
impeachment or rebutting claims of insanity
Fletcher v. Weir - If Miranda warnings are not given and the suspect remains silent,
silence can be used against him because the 5th does not bar silence as incriminating
J.B.D. v. North Carolina - The defendant was taken out of his class and put in a room at the
school. He confessed without being read his Miranda Rights. The North Carolina Supreme
Court said this was okay because he was not in custody, however the Supreme Court
overruled. They said that whether or not a suspect is in custody is an objective
question. (how would a reasonable person feel... did they think they could leave and
terminate questioning). They also said the age of the suspect must be considered.
Dickerson v. United States
Case Notes from Dickerson
The defendant was indicted for bank robbery, conspiracy to commit bank robbery, and using a
firearm in the course of committing a crime of violence
He made a statement to the FBI and is trying to suppress it on the grounds that he was never
Mirandized.
2 years after Miranda, Congress enacted 3501 in an attempt to overrule Miranda
3501 omitted the warning requirements of Miranda and gave the court a nonexclusive list of
factors to consider if confession is voluntary
The Supreme Court ruled that Congress may not supersede the Courts rulings concerning the
Constitution
Book Notes after Dickerson
State v. Cook - recording interrogations is not required under the 5th amendment
Orozco v. Texas - Miranda applies to officers entering a home, arresting and
questioning. Should apply to situations involving custody and interrogation
IF a statement is volunteered by a suspect, it is not subject to Miranda
Class Notes from Dickerson
Hypo:
Officers come with arrest warrants at Marys house 1) possession of marijuana 2)
distributing.
She is walking out the door and police ask her to stay for questions. Officers tell her that
she is in serious trouble. Tell her to sit down and not to talk until they are done speaking
and they will work out a deal if she tells them her suppliers. Are her statements
admissible?
Is there a Miranda violation?
Custody- is there a reasonable belief that she could terminate the encounter?
Interrogation Rhode Island v. Innis
Book Notes from before Innis
Public Safety Exception
New York v. Quarles - a woman approached police and said that she had been raped by a
man who went towards a supermarket. The officers found a man who matched the
description and who was wearing an empty holster. The officers arrested him and asked
him where the gun was before Mirandizing him. This came within a narrow exception
of Miranda where compliance with Miranda posed a risk to public safety
Routine Booking Question Exception
Pennsylvania v. Muniz- A drunk driver was asked for name, height, weight, and eye color
at the stationhouse before being read Miranda. The questions asked during a booking
process do not need to be preceded by Miranda rights.
Case Notes from Innis
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 Case Notes from Innis

Interrogation requirement. Contrast with Brewer v. Williams - tell us where the body is so we
can give this girl a Christian burial before the snowfall was interrogation
Issue: was the respondent interrogated in violation of Miranda?
Holding: No, interrogation is any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.
Facts
Taxi driver is robbed and IDs the suspect in a police office after seeing a poster for a
suspect who killed another taxi driver
Officers arrest the suspect, Mirandize him and transport him to the station after he says he
wants to speak to a lawyer
Officers ride in the back of the car and have a conversation about how bad it would be if
a child in a nearby school would find the gun from the murder.
The suspect asks to turn around and find the gun.
Book Notes after Innis
Arizona v. Mauro - Mauro killed his son and voluntarily admitted and led officers to body. He
was given Miranda rights and he said he didnt want questions until he had an attorney. Mauro
asked to talk to his wife. He was allowed to with an officer present and a recorder in plain
view. Mauro told his wife not to talk to police. He tried to plead insanity and officers tried to
use tape as evidence of sanity. This was not ruled to be an interrogation.
Request for Submission to Blood Alcohol Test
South Dakota v. Neville - a request for a suspect to submit a blood alcohol test is not
interrogation. Similar to fingerprinting or photography.
Berkemer v. McCarty
Book Notes from before Berkemer
Miranda only applies to custodial and interrogation cases
Oregon v. Mathiason - Miranda is not applied where custody is lacking, even if the situation
was coercive. Parolee who appeared at station for officers request for a discussion was not in
custody.
Mathis v. United States- custody does not have to be for the subject of questioning
California v. Beheler - Beheler called police after a gang murder. He allowed officers to
search backyard for murder weapon. Went in for questioning and officers said he was not
under arrest. This was admissible. Test: whether there is a formal arrest or restraint on
freedom of movement of the degree associated with a formal arrest
Stansbury v. California - The police took a suspect into questioning, but asked if he would join.
The court said that if a reasonable person in the defendant's shoes would not consider that he
was in custody, the confession was okay. The court said this was a valid confession.
Case Notes from Berkemer
Issue: Does the roadside questioning of a motorist detained pursuant to a misdemeanor traffic
offense stop constitute a custody for the purposes of Miranda? Yes
Facts
Officer noticed Berkemer swerving on the interstate. Pulled him over and noticed that he
would probably be placed in custody for appearing intoxicated and would probably be
charged with misdemeanor. The officer did not tell Berkemer that he would be detained.
Berkemer failed field sobriety tests. He told officer that he drank and smoked weed
before driving. Then the officer asked him if he thought he was under the influence or if
marijuana was laced with chemicals. He was never was given Miranda warnings.
Reasoning
In this case, the defendant was in custody so the exclusionary rule applied, but there
should not be a per se rule that a traffic stop invokes the Miranda warnings
Field sobriety tests were not ruled the same as being in custody Neville
Book Notes from Berkemer
Post-conviction Incarceration as "Custody"
Maryland v. Shatzer - Prison incarceration after conviction does not constitute custody
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 Maryland v. Shatzer - Prison incarceration after conviction does not constitute custody
for Miranda purposes.
Davis v. United States
Book Notes from before Davis
Suspect's Right to Avoid Interrogation
Edwards v. Arizona - law enforcement officers must immediately cease questioning a
suspect who has clearly asserted his right to have counsel present during custodial
interrogation.
A request for an attorney bars all further interrogation
Exceptions:
Until you speak with an attorney, or
Began meaningful communication, or
14 days Maryland v. Shatzer - limits the Edwards bar to 14 days.
Edwards Rule Not "Offense Specific"
Arizona v. Roberson - The Edwards rule is not offense specific. If he is questioned after
asserting his right for an attorney for a different offense, it is invalid.
Suspect Initiated Discussion
Oregon v. Bradshaw - The defendant asked for a lawyer and while being taken to jail, he
initiated a conversation with the police officer. He eventually took a lie detector test.
The court said that this was okay, because the defendant initiated the conversation.
Effect of Invoking Right to Silence
Michigan v. Mosley - officers are not completely barred from re-approaching a suspect
who invoked his right to remain silent. They came back 2.5 hrs later to question about a
different offense. The Supreme Court said this was not a violation as long as officers
unscrupulously honor the suspects 5th amendment rights once permissibly asserted
concerning the original crime questioned/accused
A request to remain silent does NOT bar all further interrogation
Montejo v. Louisiana - A person can not invoke the Miranda rights anticipatorily
Case Notes from Davis
Facts:
After Shackleton lost a game of pool and refused to pay, he was beaten to death with a
pool cue.
Investigators found out that Davis was at the club the same night and that cues could only
removed by people who owned them.
Davis cue was found to be bloodied.
Davis was interviewed at Naval Intelligence Services office. He was informed of his
right. Davis, both orally and in writing, waived his right to remain silent and to counsel.
About and hour and a half later he said maybe I should talk to a lawyer
when asked he said No I am not asking for a lawyer. Officers reminded Davis again
of his right to remain silent.
About an hour later he said I think I want a lawyer before I say anything else.
Questioning ceased.
Procedural history
Moved to suppress statements, Trial court denied; convicted of murder
Military Appeals affirmed
Issue:
How law enforcement should respond when a suspect makes a reference to counsel that is
insufficiently clear to invoke Edwards?
Holding
The suspect must unambiguously request counsel
If it is not clear Edwards does not require the officers to stop questioning.
It is an objective standard whether or not someone has invoked Mirandas right to
counsel.
Edwards rule is a bright line rule that can easily be applied in the real world without
hampering the gathering of information
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hampering the gathering of information

Forcing questions to stop when a person being interrogated may want an attorney
would hamper the process.
Good police practice is to ask clarifying questions, like in this case, to make sure
the person being questioned knows their rights. BUT court does not adopt a rule
requiring officers to ask clarifying questions!
Book Notes after Davis
Invoking the Edwards Bar to Questioning
McNeil v. Wisconsin - Edwards rule requires a reasonable expression of desire for
assistance of an attorney in dealing with custodial interrogation by the police. A vague
reference does not require the cessation of questioning.
Does the invocation of right to counsel for one case invoke the right to counsel for
another case.
6th amendment right to counsel they can reapproach him
The court says he can be reapproached. You can be interrogated and spoken to
about another offense. You are protected from questioning about ONLY the
offense you invoked the right to counsel for. They can question about an
unrelated independent offense.
5th amendment right to counsel they can NOT reapproach him
Anticipatory Invocation of Right to Counsel
McNeil dissent - asserting right to counsel for future custodial interrogation does not
necessarily mean that we will allow it to be asserted initially outside the context of
custodial interrogation
You have to wait till you are in custody being interrogated to invoke the right to counsel.
Cannot do it before!
Presence of Attorney Required Under Edwards
Minnick v. Mississippi - Minnick met with attorney then spoke with the
officers. Edwards did not apply because it only applies until the defendant speaks with
counsel.
Invoking the right to remain silent
State v. Hodges - silence in the face of the interrogator may constitute invoking the right
to remain silent so long as it is clear and unequivocal. The defendant not responding to a
question was not clear and unequivocal, therefore, the police were free to interrogate him
Louisiana Cases
State v. Payne
Issue: whether Edwards rule applies to this issue? No, the defendant's words were not clear
and unambiguous so as to put a reasonable police officer on notice that defendant was invoking
her Miranda right to counsel
Facts
Two year old was admitted into hospital with clear signs of abuse.
Went to defendant's home, consented to search and she was mirandized. She was not
interrogated or arrested.
When she arrived at police station, defendant was again informed of miranda
rights. Defendant confessed to the crime.
Procedure
The defendant tried to suppress saying that she tried to call her attorney before she went
to the police station. One of the officers took the phone away from her after she said
may I call a lawyer -- can i call a lawyer?
Reasoning
Objective test - was there police speech or conduct that created a situation in which the
suspect probably will experience the equivalent of direct questioning to lead to
incriminating statements
Not met - placing defendant in car after taking away the phone was not an
interrogation. This was before custodial interrogation began.
Before she was questioned at police station, the defendant was Mirandized
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 Before she was questioned at police station, the defendant was Mirandized
Her statement was both voluntary and not made during interrogation
She invoked her right to call an attorney too soon.(Anticipatory invocation)
This is a wacko case!!!!!
Ronald Reeves Case - Confession Video on Moodle
Reeves was turned in for a murder by his friends and they brought him to the station
Reeves was mirandized and he invoked his right to an attorney
Under the Edwards Rule the questioning should immediately stop for 14 days (Shatzer)
The officer stated that this was the only chance left that they had to talk as well as issue an
affidavit which accidentally had the facts of the investigation stapled to it
He is clearly in custody, so all they would need is an interrogation, for this to be a
violation
Is this an interrogation?
Berghuis v Thompkins
Case Notes from Thompkins
Facts:
Morris was killed and France was wounded in a shooting outside a mall in Michigan.
Thompkins, a suspect, fled and was arrested a year later in Ohio
Interrogation lasted three hours and took place in an 8x10 room
Thompkins was given a sheet that told Thompkins his constitutional rights - it was
derived from Miranda.
Officer asked Thompkins read the fifth warning outloud that informed him he could
ask for an attorney at any time (to verify that he was able to read)
Did not sign written statement
Defendant remained silent throughout a majority of the interrogation but answered a few
questions
Officers asked Do you pray to God to forgive you for shooting that boy down
Thompkins answered Yes
Issue: did the defendant invoke the right to remain silent by keeping silent for a certain amount
of time?
Holding: the statement was admitted because d ddid not make an unambiguous invocation of
his right to remain silent
Dissent
Does not agree with the standard that a suspect must clearly invoke the right to remain
silent by speaking
Waiver Issues
Moran v. Burbine
Book Notes from Moran
Waiver Issues
The defendant has to knowingly and intelligently waive his privilege against self
incrimination and his right to retain or appoint counsel
The prosecution has to prove that the defendant made a choice that might constitute
a waiver and that a choice made by the defendant was effective
Burden of Proof
Colorado v. Connelly - Waivers of right to counsel and to remain silent must be clear
and convincing evidence. The prosecution has the burden of proof.
Express Waivers Not Required
North Carolina v. Butler - In at least some cases, waiver can be clearly inferred from the
action and words of the person interrogated
Distinguishing Different Waivers
Waiver of the right to counsel and the right to silence are not identical. Waiver occurs for
fifth amendment when an incriminating statement is made. Waiver for 6th occurs before
interrogation.
Effectiveness of Waivers: In General
Edwards v. Arizona
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 Edwards v. Arizona
The defendant asked to not be videotaped, and the officers informed him that non
video taped confessions could also be used in court
The Trial, Appellate, and Supreme Court of Arizona all said that the confession was
voluntary
The Supreme Court of the United States said that Edwards had not effectively
relinquished his right to counsel
The Supreme Court said that there must be voluntariness, but also knowing and
intelligent relinquishment or abandonment of a known right or privilege
Effectiveness of Waivers: Voluntariness
The prosecution must show that the statements were voluntary
Use of psychiatrists is often used when the guy is crazy
Drunkenness could vitiate voluntariness (no Supreme Court cases, but some LA)
Effectiveness of Waivers: Intelligence
Tague v. Louisiana
The officer read the Miranda rights off of a card to the defendant. The officer never
asked if he understood, nor did he check to see if the defendant was literate.
Evidence has to be shown that the defendant knowingly and intelligently waived his
rights
Scope of Waiver
Wyrick v. Fields - The defendant waived his rights to counsel and agreed to a polygraph
test. After, the cops asked him questions. The defendant was unaware that his waiver
was good for questions after the polygraph. The court disagreed.
Case Notes from Moran
Do not suppress confession if police do not inform you that there is an attorney ready to speak
with you.
This seems to conflict with Miranda? No, the right to an attorney is a personal right and no
one can exercise it for you
Book Notes after Moran
Knowledge of Subject Matter Interrogation
Colorado v. Spring - you dont have to be told what crime you are being interrogated for
Limited or Qualified Waiver
Connecticut v. Barrett - The defendant requested a lawyer before he gave a written
confession, but said he would talk with officers before his attorney arrived and his
comments implicated him in a sexual assault. The court said this was not a violation of
the defendants 5th Amendment rights.
Reapproach of Suspect Who Invoked Right to Silence
Michigan v. Mosely - The defendant invoked silence when referring to crime 1. Another
cop interviewed him about crime 2 and he started talking. The court said this was ok.
Effect of Deception on Effectiveness of Waivers
Miranda contains language suggesting that waivers will be rendered ineffective by proof
that the defendant was tricked into the waiver
Intoxication
Has not been ruled on by the Supreme Court, but some LA cases say that drunkenness
can vitiate voluntariness
Berghuis v. Thompkins Part II
Case Notes from Thompkins
Facts, Supra
The prosecution must prove 2 different matters:
Waiver must be voluntary (product of free and deliberate choice rather than coercion,
deception or force)
Made with full awareness of nature of right abandoned and consequences
Waiver of defendant's rights do not have to be explicit - this was done impliedly by speaking
Interrogators are not required to re-inform defendants about waiver rights in the course of
interrogation
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interrogation
The fifth amendment privilege is not concerned with moral and psychological pressures to
confess emanating from source other than official coercion. You can use mental and
psychological pressure to get the offender to admit p190
however, Moran p456 - implies you cant use excessive psychological pressure.
Dissent: they do not believe the defendant waived his right to remain silent by sitting
unresponsive with a few responses
Louisiana Cases
State v. Fernandez
Facts
Police responded to an armed robbery report and drove through the area with the victim
in the police car - victim saw defendant and identified him
Defendant arrested and mirandized. Defendant then blurted out a comment on the crime
and offered to cooperate and return stolen items. Defendant led officers to weapons and
location of items.
Officer learned at the booking that defendant was a juvenile
Issues: Should Dino rule be kept or should LA move to totality of circumstances for juvenile
waivers? LA overturns Dino and changes to totality
Reasoning
LA Declaration of Rights incorporates Miranda and requires that defendant was informed
and waived them voluntarily and knowingly. Applies to juveniles and adults.
Dino rule - when a juvenile is interrogated, the prosecution must show that juvenile
consulted an attorney or informed parent, guardian/invested adult before waiving right to
counsel
On Rehearing
Dino Rule is overruled - an absolute standard is not appropriate because society has too
high a price to pay when an otherwise valid confession is suppressed because someone
was a few months away from the legal age.
Reinstate the totality of the circumstances
Age is a major factor, but not the only factor
Must look at the other substantial factors
State v. Matthews - comes out different than Moran p426
Issue: whether the police denied defendant's their Miranda rights during an interrogation by
refusing the defendant's attorney's request to speak with defendants and failure to inform
defendants that attorney was present to speak with them.
Holding: when an identifiable attorney is actually available and seeking to assist defendant,
and the police do not inform the defendant of this fact, any statement from the interrogation
cannot be admitted
Facts
The defendant received call from police investigating neighbors death. The defendant
called attorney before speaking w/ police who told him to remain silent if he was arrested
Matthews and his wife were later arrested
Attorney called police and told police that he didnt want anyone interrogating his client,
but officer said that an interrogation was underway
Attorney showed up at station but wasnt able to stop the statement
Reasoning
Even though the attorney did not specifically ask for a delay in the interrogation, he
positively identified himself as an attorney seeking to give defendant assistance.
Not letting the attorney speak to the lead officer, barred attorney from requesting to delay
the interrogation and this adversely affected the defendant
Public policy is in favor of encouraging attorney to confer with his clients, so rights may
effectively be exercised
Fruits of an Inadmissible Confession
Oregon v. Elstad
Case Notes from Elstad
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 Case Notes from Elstad

Facts:
Gros residence was robbed
Witness to the burglary implicated Elstad
in his bedroom when the cops entered home, told to put on clothes and to go into living
room.
Elstad admitted that he was at the crime before the officer read him his Miranda Rights
At the station the officers read him his rights and Elstad again admitted to the crime.
Issue:
Does an initial failure to administer warning under Miranda taint subsequent valid
confession made after Miranda?
Holding:
Confession number 1 is not admissible no matter what
is confession number 2 admissible?
in custody a second time, being interrogated, but this time he has been Mirandized.
Fruit analysis? Poisonous Tree is the failing of giving Miranda at the house, and
confession #2 is the fruit.
Was there Attenuation of the taint?- Time(no, not very long), No independent
witness
The taint was washed by reading the Miranda rights
Changes the poisonous tree into a bush!
In other cases, the taint cannot be washed by doing right what you could have done
earlier, but here the difference is that Miranda is a jurisprudential rule, not a
constitutional protection.
has Elstad been overruled by Dickerson?
Book Notes after Elstad
Physical Evidence Obtained as a Result of a Miranda Violation
United States v. Patane - Officers arrested Patane without using Miranda rights and asked
him about a pistol and he told police where it was and gave permission to retrieve it. The
Supreme Court said this should not be excluded because a Miranda violation only
occurs when police fail to comply AND a resulting statement is admitted into
evidence. In this case, the gun was not a resulting statement.
Missouri v. Seibert
Case Notes from Seibert
Facts
Defendant's son had cerebral palsy and had died in his sleep. She feared that there would
be implications because he had bedsores on his body. Her and her sons devise a plan to
burn down their mobile home! but in order to make it look like her son was being
attended to, they make a mentally ill teenager stay with him and they kill him in the
fire!!!!
When police got to defendant at hospital, they did not give Miranda warnings. She was
taken to interrogation room and questioned for 30 minutesMwithout Miranda
warnings. After admitting to the crime, she took a break and they gave her Miranda
warnings over a tape and had her sign waiver of rights. They then obtained a confession
based on the previous one.
The miranda rights were intentionally held based on strategy of question first, give
warnings, then repeat the question until you get the answer again
Issue: is the intentional withholding of Miranda rights distinguishable from Elstad rule? Yes,
intentional withholding between continuous interrogations renders a post-Miranda
statement inadmissible
Reasoning
If interrogators withhold warnings until a confession is elicited, the warnings will be
ineffective in preparing the suspect for successive interrogation
Distinguishes Elstad as a police oversight, and this is intentional. Additionally Elstad
interrogation at home and at the station house were clearly separate interrogations. Here,
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interrogation at home and at the station house were clearly separate interrogations. Here,
the break between the interrogations does not separate the two confessions distinctly - it
was a mere continuation.
Does Miranda dissipate the taint?
Four facts from Fruit of the poisonous tree
an Is there bad faith?
Michigan v. Tucker
The crime is a rape at the victim's house. The police did not tell him about his right to appointed
counsel. Done before the Miranda trial, by one day. The defendant said he was with Henderson at
the time the offense occurred, and Henderson said tucker was here later than that, and he had
scratches on his face.
The 5th Amendment only protects compelled statements, this was not compelled
This is similar to Cecolini
EYEWITNESS IDENTIFICATION
United States v. Wade
Case Notes from Wade
Facts:
Wade and an accomplice were arrested for suspicion of robbing a bank.
15 days after Wade was appointed an attorney, the FBI arranged to have two bank
employees view a lineup with Wade in it without Wades attorney being informed.
Each person in the lineup wore the strips of tape and recited something like put the
money in the bag
Both employees identified Wade as the robber.
Procedural History
Trial Court- both employees pointed to Wade as the robber. Counsel moved to suppress
courtroom identification on the ground that the lineup without the attorney being notified
or being present violated 5th and sixth
Issue:
Whether courtroom identifications of accused people at trial are to be excluded because
the accused was exhibited to the witnesses before trial at a postindictment lineup
conducted for ID purposes, in the absence of defendants attorney?
Holding:
Sixth Amendment guarantee applies to all critical stages of the proceedings
Trials today can be a mere formality and the evidence taken before can be what
makes the trials.
to have assistance of counsel for his defense. (6th Amend)
Counsel Assistance is necessary whenever it is necessary to assure a
meaningful defense.
Question to ask: Does not having counsel form a risk that the defendant will
not have a fair trial?
No, fingerprints, blood sample, clothing, hair, and the like.
Yes, post indictment lineup,
Wade and his lawyer both needed to be notified of lineup. Counsel
presence is a requisite.
Wade could have waived his right to counsel. Requires an intelligent
waiver (voluntary and knowing)
If you have a fruit of the poisonous tree, how is it dissipated? Independent sourceevidence of the crime before the accusatorial process and in court by a witness
Book Notes After Wade
Per Se Rule of Inadmissibility for Testimony Concerning Identification Made at Lineup
Gilbert v California - Pretrial lineup was conducted in violation of Gilberts right to
counsel. At trial prosecution had eyewitness testified that he picked Gilbert out of the
lineup. Court ruled that this was an an exploitation of the primary illegality.
Attachment of Right to Counsel
Kirby v Illinois - Defendant arrested and brought to police station, robbery victim was
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 Kirby v Illinois - Defendant arrested and brought to police station, robbery victim was
then brought to the station and instantly identified Kirby. Court upheld the identification,
stating the right to counsel attached at the commencement of judicial criminal
proceedings.
Moore v Illinois - Moore was arrested for the rape. At the preliminary hearing, the victim
was brought in and asked by the judge if her attacker was in the room, she identified
Moore. Court struck down this identification because the right to counsel attaches when
the complaint was filed by the prosecution, not when the actually indictment was made.
Rejects argument that right to counsel does not apply to one on one identifications.
Photo Showings
United States v Ash - Ash was arrested for bank robbery. Witnesses were shown
photograph lineup long after indictment, Ash was not present. Court distinguished
photograph lineups, The court held that counsel is not required at a photo array and that
the defendant has no right to be present at the showing of the photos.
Manson v. Brathwaite
Book Notes from before Manson
The Due Process Prohibition Against Excessive Suggestiveness
Stovall v. Denno - a husband and wife were attacked by an intruder. The husband
died. The defendant was brought into the wifes hospital room without an attorney after
undergoing major life saving surgery. The defendant was the only black man in the room
and was handcuffed, she positively identified him. This did not violate the 6th
amendment but it should still be withheld if there is a violation of due process - Not in
this case.
6th amendment not yet in play since he was not yet indicted
Due Process is always in play
Foster v. California - David was brought to station to view a lineup. There were three
men in the lineup (one was Foster). Foster was tall, the others were 4-5 inches shorter
and Foster wore a leather jacket similar to the one that the suspect wore. David was
unsure of the identity and asked to speak to Foster.... still could not positively ID the
suspect. Another lineup was given of 5 people and Foster was still in the lineup. This
time David IDd Foster. This violated due process.
Case Notes from Manson
Issue: Whether the 14th Amendment compels the exclusion of pretrial ID evidence that was
both suggestive (only one photo was used) and unnecessary? Use the totality of circumstances
test
Facts
Officers went to a controlled drug purchase to purchase from Cicero. The officers
entered the building that they thought was Ciceros. They went to the top of the stairwell
and knocked on one of the doors. Officers saw a man open the door and they exchanged
drugs + money. Officer was within 2 feet away from man throughout the five minute
exchange.
Officer gave description of the man as 511, colored, black hair afro style, heavy build
and a description of clothing. Another officer took a photo of a man that sounded like the
suspect and the first officer positively IDd him.
The defendant was arrested and Glover positively IDd the man in the photo again 8
months after the drug exchange. Did not use a photo array or conduct lineup.
Holding
Two Approaches
Biggers - the victim identified defendant at a one-on-one viewing. Whether under
the totality of circumstances, the ID was reliable even if it was suggestive? ID was
admitted
Per se approach - requires exclusion when it has been obtained through
unnecessarily suggestive procedures
Factors to take under consideration:
Reliability - recollection of the defendant can be distorted by circumstances or
police activity. Per se approach is too strict because without concern for the totality
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police activity. Per se approach is too strict because without concern for the totality
of circumstances, it can exclude reliable evidence. Totality of circumstances test
should weigh the following factors against corrupting effect of the suggestive
ID:
Opportunity of witness to view criminal at time of crime - officer was 2-3
feet away during the 5 minute encounter
Witnesses degree of attention - was a trained officer on duty
Accuracy of prior description of criminal - given within minutes of
transaction and included many descriptions
Level of certainty - there is no question whatsoever
Time between crime and witness ID - description given immediately after,
photo ID was 2 days later
Deterrence - both approaches address deterrence
Effect on Administration of Justice - per se rule could allow defendant to go free
Book Notes after Manson
Expert Testimony
State v. Schutz - Iowa is the only state with a blanket prohibition against the use of expert
testimony speaking against the accuracy of eyewitness ID
Using experts to advise juries is often discouraged because it is common sense
State v. McClendon
Currie v. Commonwealth
Jury Instructions
Often instructs about the factors when considering the weight of the testimony
United States v. Telfaire - if eyewitness testimony is the only evidence of the ID of the
criminal, jury instruction is mandatory in some jurisdictions
Louisiana Cases
State v. Thomas
Facts
Defendant's convicted of armed robbery of liquor store
Store managers IDd the defendant's from a group of photographs
Lineup was conducted without attorney present, despite requests
Holding
Officers were not aware that attorney was being withheld from the lineup
Exclusion is not a per se rule for 6th amendment violations - balancing test
In court ID was an independent recollection of the appearance at the time of the offense
(independent source exception)
State v. Newman
Facts
The defendant burglarized a residence and was seen by a thirteen year old girl. She
screamed and the burglar left.
A line up at the station was done and the girl was distressed and didnt want to
participate. Unaware of their presence, another officer brought the defendant in the same
room as the girl to prepare him for the line up. She immediately identified the defendant.
Issue: should this ID be withheld under the 14th amendment? No, did not meet independent
source requirements
Holding
She only viewed the defendant at the scene of the crime for a few seconds. It was a dark
room and she had just woken up.
Exceptions to prohibition of one on one IDs:
Independent source - in court identification can be independent with three factors:
Prior acquaintance of the witness with the accused
Time between witness observed the perpetrator before, during and after
commission of offense
Circumstances under which the observation was made
A suspect is brought back to the scene of the crime shortly after - not here
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 A suspect is brought back to the scene of the crime shortly after - not here
State v. Williams
Facts
Armed robbery at Churchs Fried Chicken store. 5 kids were in the restaurant and then
went to loiter in the parking lot. Cashiers were suspicious and moved all cash to locked
safes.
Four kids reentered the store and demanded money. Employees called police and were
unable to ID during a photograph lineup. Two months later was unable to ID during a
photo lineup. One of the cashiers (Martin) IDd during a physical lineup, the other did
not. Martin made positive ID at trial but the other did not.
Issue: was the positive physical lineup and trial ID tainted by the showing of photograph
lineups? No, independent information outside of the IDs would have proved guilt
SURREPTITIOUS INTERROGATIONS AND ELECTRONIC SURVEILLANCE
Hoffa v. United States
Book Notes from before Hoffa
Prohibition against use of uncorroborated testimony of jailhouse snitches
Kansas v. Ventris - prosecution offered testimony of an informant that was planted
by police in defendant's jail cell. The testimony was admitted but jury was
instructed to weigh the testimony with the amount of benefits being provided to the
snitch by police. The jury acquitted defendant of the felony murder. The Court did
not issue an exclusionary rule for snitches testimonies because juries are already
required to weigh the reliability of informants in proceedings.
Case Notes from Hoffa
The protection that you would normally have in a certain space under the 4th amendment is
vitiated if you consent to a person entering that space (whether that person is wiretapped,
communication devices, or video camera)
Book Notes after Hoffa
Use of Transmitters or Recorders
United States v. White - White conducted drug transactions with Jackson, a government
informer, who was wearing a radio transmitter. The court said that if the conduct and
revelations of an agent operating without electronic equipment did not invade the
defendants constitutionally justifiable expectations of privacy, neither does a
simultaneous recording of the same conversation.
Literal Searches Conducted by Undercover Officers
Gouled v. United States - an item was searched and seized by a government
informant. The court said this fell within the scope of the 4th Amendment
United States v. Kahn
Book Notes from before Kahn
Constitutional Background
Berger v. New York - New York statute was not particular enough about requiring
information about crime being investigated to meet 4th amendment analysis (place of
search, items being seized). There may only be one intrusion for each showing of
probable cause. Must not violate probable cause case law. Must be notice to the persons
whose conversations are being seized.
Katz v. United States- electronic surveillance is a search when subjective/objective
privacy tests are met
Federal Statute
Law on electronic surveillance is regulated by Title III of Omnibus Crime Control Act
Wire communication - aural transfer that in whole or part uses wire, cable, or like
connection
Oral communication - any oral communication uttered that is not expected to be
intercepted
Electronic communication - transfer of signs, signals, images, data or intelligence by
wire, radio or similar means
Intercept - aural or other acquisition of the contents of any wire, electronic or wire
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 Intercept - aural or other acquisition of the contents of any wire, electronic or wire
communication through the use of devices
Exclusionary Rule - if in violation of the chapter, no intercepted communication can be
used
United States v. Giordano - can look to Congressional intent to see which violations
are severe enough to invoke exclusionary rule
United States v. Donovan - violations are not retroactive to exclude previous, valid
interceptions
Fruit of the Poisonous Tree
Cannot be claimed unless defendants can show that violations of statute occurred to
convict them (not a per se rule)
Exceptions that Permit interception of communication
Parties in the conversation
Federal Law enforcement in emergency situations
Court orders
Process
Authorization
Application
Application contents delivered to judge
Officer name
statement of probable cause
Whether other investigative measures have been tried and
failed
Period of time for investigation
Statement of previous applications
Must be approved by judge
Intercept Order
Must specify the criminal activity or conspiracy that is punishable
by more than one year of prison
Contents of Judge Order
ID of the person being intercepted
nature and location of comm. facility
Can be a roving order if the judge has probable cause
that actions of persons could have the effect of
thwarting interception
description of the type of communication and the offense to
which it relates
period of authorized time
No longer than 30 days
Must stop if objective is met
executed as soon as possible
Service of the Intercept Order - assistance from landlords or private
parties is obtained
Dalia v. United States- covert entry of private premises to install
listening device was okay
Return - summary of the results
Notice and inventory given to intercepted persons
Reasonable time but not after 90 days
Fact of entry, date of entry, if communications were or were not
intercepted
LOUISIANA STATUTE DOES NOT PROTECT MORE THAN FEDERAL
Pen Registers and Trap and Trace Devices
United States v. New York Telephone - pen registers are not covered by wiretap statutes
Smith v. Maryland- pen registers are not a search
However, use of the devices are not allowed without a court order (unless emergency)
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 However, use of the devices are not allowed without a court order (unless emergency)
No exclusionary rule for violations of court order
Accessing or Intercepting Stored Communications
Stored Communications Act prohibits people without authorization to access electronic
communication services facilities
Violations do not invoke exclusionary rule
Conflicts with United States v. Smith - was improper access of private persons storage, if
charged under this act there would be no exclusion. It was excluded because it was
found to be a violation of the wiretap acts
Silent Video Surveillance
No federal statutes for video without voice
Case Notes from Kahn
DOJ applied for wiretap order against Kahn, a bookmaker, because normal investigative
procedures reasonably appear to be unlikely to succeed.
Informants refused to testify
Phone records would be insufficient alone to support a bookmaking conviction
More traditional methods (physical surveillance) would be unlikely to produce useful
evidence
Order was granted to monitor Irving Kahns communications using the phone and others yet
unknown.
A conversation was intercepted between Kahns wife, Minnie, and a known gambling
figure. The Kahns motioned to have this conversation suppressed.
7th Circuit
Upheld motion to suppress because it found that his wife Minnie was not a person as yet
unknown.
The government did not show that further investigation of Minnie would not have shown
that she was involved with gambling operations.
Holding
7th Circuit added a requirement, 2518 only requires that individuals be listed in the
wiretap order if they are known to be committing the offense.
The added requirement is too broad, government cant reasonably be asked to investigate
every individual who could potentially have access to the phone.
There was no reason to assume that Minnie was involved, thus she was to be considered a
person yet unknown.
Irving Kahn didnt need to be a party to the conversations on this particular phone for the
intercepted calls to be admissible. This would preclude using a voicemail from a
gambling associate, or admitting a call made by a gambling associate who visited Irving
Kahn and used his phone.
Book Notes from Kahn
Need to Name Person Not Principal Target
United States v Donovan - A wiretap application MUST name an individual if the
government has probable cause to believe that the individual in engaged in criminal
activity under investigation.
Exclusionary Penalty for Failing to Name Persons
United States v Donovan - Failure to name person does not require exclusion of the
results of surveillance.
Turn on the officers intent
In Donovan, the application did not name additional parties that were
overheard saying incriminating statements.
If they would intentionally fail to identify a person than it would most likely
be excluded
Proof that Other Investigative Procedures Would Not Suffice.
In Kahn, the judge determined it was enough that on the basis of the facts submitted by
the applicant, that normal investigative procedures are too dangerous, have been tried and
failed, or are likely to fail
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failed, or are likely to fail

Minimization of Interception of Innocent Communication
Scott v United States- 40% of all calls were related to criminal activity. Officer made no
attempt to minimize the interception of innocent calls. Court said this was ok.
It is the objective circumstances, not the subjective intent of the officer which
determine the legality of the action.
Can not just look at a % and say that is too much.
Need to consider the circumstance for the wiretap.
Wiretap for a conspiracy would warrant a more extensive surveillance.
Wiretap a public phone because one places bets there would not
Officers can record all calls until they know which calls they need to record. Once
they know, the nonpertinent calls to the investigation that were previously recorded
would be considered unreasonable retroactive and inadmissible.
If an officer violates the minimization requirement, suppression is only warranted for the
conversations improperly recorded.
Actual Use and Effect of Electronic Surveillance Legislation
Federal Statute requires judges and prosecutors to make periodic reports to the
Administrative Office of the United States Courts which issues yearly reports
summarizing information collected for the previous year.
Allowed in 31 states
Louisiana Cases
State v. Reeves
Issue: whether eavesdropping by state agents on conversations between an accused and an
informant by means of a radio transmitter on the informant violates 5 of LA Const.?
Holding: Electronic surveillance must be conducted in full compliance with warrant
requirements.
Reasoning
LA protects more than 4th amendment because of invasions of privacy language
State v. Neisler
Facts
State obtained a wiretap order but statements of anonymous informant were not presented
to the judge who issued the wiretap order
From wiretap info, the police obtained two search warrants and obtained incriminating
evidence
Issue: should the exclusionary rule be applied to exclude the evidence obtained pursuant to a
wiretap order when information to establish probable cause is not presented
Holding: Yes, exclusionary rule should apply to violations of wiretap act - same as the Federal
rule
On rehearing
Exclusionary rule not required when confidential information that was left out, is
not essential to affidavits establishment of probable cause
Extra Credit Lecture: Secret Agents
Was this entrapment?
Subjective test - was the defendant predisposed to commit the crime? If yes, then it is not
entrapment
Objective test - does the governments activity offend due process. ex) providing too many means to
commit the crime
The Supreme Court reversed stating that it was permissible to soften up a suspect that is already
predisposed to commit a crime, but you cannot create the predisposition. but can provide the means and
need not have a reasonable suspicion to begin with,
SIXTH AMENDMENT RIGHT TO COUNSEL
Patterson v. Illinois
Book Notes from before Patterson
Introduction
Massiah v. United States- 6th amendment right to counsel applies to undercover efforts to
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 Massiah v. United States- 6th amendment right to counsel applies to undercover efforts to
elicit self-incriminating statements occurring after the investigation has reached a certain
point
Brewer v. Williams - 6th applies to overt police interrogations occurring after the case has
progressed far enough
When exactly does that 6th amendment attach?
When can police reapproach a suspect?
Attachment of the Sixth Amendment
Edwards v. Arizona - 6th attaches when judicial proceedings begin
Michigan v. Jackson - arraignment triggers the 6th
What is arraignment? appearing before the magistrate to be formally charged
Moran v. Burbine - a client-attorney relationship before adversary judicial proceddings
does not trigger the 6th attachment
Application of 5th Amendments Edwards Rule
Jackson - rule applies to 6th. Presumption is that the defendant has triggered the 6th for
every stage of the proceedings.
Roberson - police cannot reapproach until a lawyer is present. Can reapproach for
different crimes (same as 5th amendment rule!)
Waivers of 6th should be under greater scrutiny to Miranda and 5th waivers
Case Notes from Patterson
Facts
Gang fights left one member dead, defendant was a known member and was arrested
Defendant was mirandized and volunteered to answer questions
Police kept the defendant in custody but started to transfer him from holding cell to jail
because he was being indicted
Defendant asked who was charged and asked why a certain gang member wasnt charged
because he did everything
Police handed defendant a Miranda waiver form, defendant signed and gave statement
implicating himself in the murder
Issue: whether interrogation of defendant after his indictment without an attorney was made
validly? (did defendant voluntarily and knowingly waive his 6th right?)
Holding: yes the 6th amendment is in play, but defendant did not invoke it here (you have
to ask for it)
Reasoning
Was the accused made sufficiently aware of right to have counsel present at questioning
and the possible consequences of a decision to forgo the aid?
Officers conveyed the required knowledge to defendant
Miranda warnings gave the consequences
Gravity of situation was realized when officer told defendant that he was being
charged with murder
Difference between when the rights attach (different definitions of adversarial
proceedings)!!
5th attaches at identification
6th attaches at indictment
United States v. Henry
Book Notes from before Henry
Illinois v. Perkins - When an undercover cop actively persuades a suspect to make
incriminating admissions. The court said that Miranda forbids coercion, not mere strategic
deception by taking advantage of a suspects misplaced trust in one he supposes to be a
fellow prisoner
Rothgery v. Gillespie County - the Court held that the 6th Amendment attached when 1. the
defendant had been arrested; 2. a peace officer filed with a magistrate a sworn document that
recited that the defendant was charged with a specified felony; 3. the defendant appeared
before the magistrate; 4. the magistrate informed the defendant of the charge against him and
set bail; 5. the defendant was jailed until he posted the bail set
Sixth Amendment Edwards Rule and Intertwined Offenses
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 Sixth Amendment Edwards Rule and Intertwined Offenses

Texas v. Cobb - a criminal involved with a burglary killed two people in the house. He
appointed counsel in the burglary, but the cops got him to admit to the killings without a
lawyer present. The court said that since the murders were closely related factually with
the burglary, the 6th Amendment attaches to both. The Supreme Court reversed and said
McNeil meant what it said
Montejo v. Louisiana - the issue was the effect of the 6th Amendment on a defendant who had
made no request for counsel but nevertheless was appointed an attorney. Even if defendant did
not ask for attorney and one was appointed for him anyway, he cannot be reapproached.
Saying I want a lawyer to the court does not invoke the 6th amendment! Have to tell
the officer that you want an attorney.
Saying I want a lawyer to How is your day may not invoke the 6th amendment!
You have to request for an attorney to a police officer (Have to say it at the right time and
to the right person)
p499 pf footnote 12 - difference between 5th and 6th amendment right to counsel.
Case Notes from Henry
Facts
Henry was arrested and indicted (Sixth amendment in play)
Henry confessed about the crime to Nichols while in jail
Nichols was a paid undercover informant
Nichols was instructed not to ask any questions about the bank robbery or initiate a
conversation, but listen to Henry if he talks.
Testimony was used in the conviction
Issue:
Did a government agent deliberately elicit incriminating statements from Henry within
the meaning of Massiah?
Yes, by intentionally creating a situation likely to induce defendant to make
incriminating statements without the assistance of counsel, the Govt. violated
defendant s 6th Amdt. right to counsel.
Massiah - an undercover officer deliberately obtained a confession w/ a wiretap and
violated 6th amendment right to counsel. You cannot do indirectly what you
could not do directly.
Holding:
Three important factors:
Nichols was acting under instructions as a paid informant for the gov
Nicholls was ostensibly no more than a fellow inmate of Henry
Henry was in custody and under indictment at the time he was engaged in
conversation by Nichols
Henry, being unaware that Nichols was a gov agent expressly commissioned to secure
evidence, cannot be held to have waived his sixth amendment right to counsel.
Book Notes from Henry
Passive Informants
Kuhlmann v Wilson - Only difference is the payment for information in Henry
the defendant must demonstrate that the police and their informant took some
action beyond merely listening that was designed deliberately to elicit incriminating
remarks.
Target Suspected of Several Crimes
Maine v Moulton - Two guys killed a witness. One of the complies with the government
and provide wiretap to incriminate another. They said this violated the defendant's 6th
Amendment rights
Impeachment Issue
Kansas v. Ventris - A statement elicited in violation of the Sixth can be used to impeach a
defendant at trial. The court explained that preventing this use for impeachment would
add only minimal deterrence. No officer could appreciably anticipate this situation
anyway.
Fellers v. United States - the cops go to someones house and talk with him about the crime he
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 Fellers v. United States - the cops go to someones house and talk with him about the crime he
supposedly committed. He admitted to it and then was taken down to the station and
Mirandized. Because the discussion took place after defendant was indicted, without an
attorney and in the absence of any waiver of 6th amendment rights, the 6th was violated
Impeachment Use
A statement elicited in violation of a defendants 6th Amendment right to counsel, can be
used to impeach a defendant who testifies at trial because this does not curb police
misconduct. The police would have to strategize that the defendant would both testify at
trial and testify inconsistently
Louisiana Cases
State v. Carter
Facts
Defendant was arrested and made appearance in court where bond was set and public
defender was appointed
Officer met with defendant, mirandized him, and asked if he wanted to make statement
Defendant signed waiver and said that he wanted to make statement - made incriminating
statement
Issue: was 6th violated when a police officer interrogated defendant in jail, without attorney,
after defendant had been arrested and had made an initial appearance before magistrate to set
bond and appoint counsel?
Holding: when the defendant's right to counsel has attached but he has not asserted the right, he
may waive it if waiver is voluntary, intelligent and knowing
clear, unambiguous, and affirmative for counsel request
Reasoning
Everything is now the same as federal
SEARCH AND SEIZURES NEAR INTERNATIONAL BORDERS
19 USC 482 allows officers near borders to stop and search anything that may contain merchandise that
would be charged a duty
19 USC 1581 allows officers to search ANY part of ANY vehicle (including trunk, glover compartment,
person)
Have to be in a reasonable distance
Border patrol officers have a more restricted right to search than custom officials
Bureau of Customs can designate border patrol officers as custom agents.
Border Stops
Montana 157 supp - no warrants, reasonable suspicion, probable cause; it is a per se rule that you can
search at the border.
United States v. Montoya de Hernandez 329 pf Woman is mule carrying drug bundles in her (butt?)
canal. Not a routine search. She is flying from Columbia to LA (this is considered a border)
See Lee when court tried to remove Bullet. Different when you are at the border.
All you need is individualized reasonable suspicion, must be individualized when it is an
extraordinary search
Fixed Checkpoints (Usually permanently fixed - same law as regular checkpoints)
Ortiz 337 pf - all cars were stopped, only a few were stopped for search and questioning
This is considered individualized, not done in accordance with a plan - discretion on behalf of the
police officers - need reasonable suspicion since the officer have discretion
Martinez- Fuerte 338 pf Every car was stopped - discretion was in play when the officer sent the car to a
second location - Must have RS when sending to the second stop
Perfectly consistent with City Min v Edwards and Michigan v Sitz?
Roving Stops (Most carefully regulated - must be individualized, do you need probable cause?)
Almeida- Sanchez 347 pf
You need probable cause and a warrant, not an administrative search
Discretion of an officer to pick a car and stop
Not close enough to a border
Brignani- Ponce 347 pf
Car was stopped with 3 Mexicans in it
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 Car was stopped with 3 Mexicans in it

Can not use race as an exclusive factor, but you can use race as part of the reasonable suspicion to
make the stop
need something to go along with the race to give reasonable suspicion (large compartments)
Montero- Camargo (correct name?) 158 supp
Far inside the border, you can not use race as an factor.
Difference from Brignani is that they are further inside the border and PO said he stopped them
because car was full of Mexicans.
Mode of dress and habits could be used.
Exam Notes:
1. There is not a specific point allocation per question - Be as detailed as possible in each question
2. Only talk about issues once on the test. Ex) only talk about poisonous tree analysis once and reference it
3. Use any abbreviations that you want
4. You get scratch paper from McGough
5. She will announce let the games begin! after one hour of reading time
6. Even if you dont know the answer about the issue, talk about it to get credit for spotting the issue
7. Answer does not matter... just the analysis
8. Do not use case names - there are no points for each mention of a case name or where in the LA
declaration of rights an amendment is
1. Just know exactly where each of the issues come from - 4th, 5th, 6th, 14th amendments
9. Dont repeat the facts unless youre going to use them. Matching facts with case law is the most
important part.
10. Dont include personal philosophies or what McGough wants to hear
11. Begin with the facts and walk her through the entire thought process. This is a 4th amendment issue. 4th
protects against blah blah. This is a search because blah blah......
12. Use principal cases above the notes cases. If she talks about notes cases a lot, those are more important.
13. LA case v. Federal - know the different conclusions.

ACJ Page 81