I.

Introduction
A. 14th Amendment Incorporation
Justice Blacks total incorporation approach.
o Makes the entirety of the Bill of Rights applicable to the United States
Selective incorporation approach.
o Incorporation step-by step in a way that incorporates rights as they are necessary.
Duncan v. Louisiana Fundamental principles of liberty and justice which lie at the
base of all our civil and political institutions must be incorporated.
o Led to Selective Incorporation + incorporation of fundamental rights and
substantive due process issues.
B. Special Exceptions to the 4th Am.
Special rules in an area where the reasonable expectation of privacy is
diminished. (i.e. Schools and airports)

II. 4th Amendment Search and Seizure

A. Who does the 4th Amendment Apply to?

The 4th Amendment applies to the people

o United States v. Verdugo-Urquidez; The People refers to . . . persons
who are part of a national community or who have otherwise developed
sufficient connection with this country to be considered part of that
community.
U.S. Citizens outside the United States: Reasonableness clause applies.
Warrant clause does not.
Burdeau v. McDowell; 4th Amendment only limits state action. (Does not limit
private action)
o Byars v. United States: Actions by state officers on behalf of federal
officers are a join state-federal venture.
Police instigation or participation; (1) Did the government know of
the conduct? (2) Did the government ask for the conduct? (3) What
were the intentions of the actor?

B. What is a Search?
Katz v. United States; 4th Amendment protects people, not places.
o (1) Legitimate and (2) reasonable expectation of privacy is relied
upon.
United States v. Jones; (Trespass) Any amount of trespass constitutes a search.
o Katz and trespass test apply.
Third Party Doctrine (Exception to Warrant Requirement)
 o United States v. White; Simultaneous recording/transmission of a
conversation by a false friend does not violate their 4th Amendment
rights.
Hoffa v. United States; False friends do not violate 4th Amendment.
Lewis v. United States; No warrant is required for agents to conceal
their identity.
Lopez v. United States; No warrant is required for electronic
recording of statements.
o Smith v. Maryland; 4th. Amendment requires (1) actual (subjective)
expectation of privacy and that it be (2) one that society is prepared
to recognize as reasonable.
Focused on limited capabilities of pen register.
Information about calls was revealed to third party, therefore no
privacy expectation.
United States v. Place; Dog sniffs are not searches.
o (1) Only registers contraband, (2) Non-intrusive, (3) Indiscriminate
o Illinois v. Caballes; Any interest in possession contraband is not
legitimate. (No privacy interest)
Customary Implied License
o Florida v. Jardines; Police can walk up to front door.
Police can do what people actually do, not what they could do.
o Bond v. United States; Police cant squeeze overhead luggage.
Kyllo v. United States; Using sense enhancing technology to view information not
otherwise visible without physical intrusion constitutes a search at least where
the technology is not in general public use. Mere observation is not a search.
o United States v. Knotts; Nothing in the 4th Amendment prohibits police
from augmenting the sensory faculties with science and technology.
Suspect travelling on public roads; readily visible, no intrusion
necessary to view that information.

C. What is a Seizure?
United States v. Karo; Seizure of property occurs when there is some
meaningful interference with an individuals possessory interests in that property.
Line Between Stop/Seizure and Encounter
United States v. Mendenhall; A person has been seized if a reasonable person
would have believed he was not free to leave.
o free to leave as initial benchmark for determining wehther person is
stopped under Terry
o United States v. Drayton: Bus sweeps- Police dont seize someone just by
approaching them or asking questions; officers ta front of bus did nothing
to intimidate passengers and left aisle clear for people to leave
o Bostick; Reasonable person presupposes innocent person.
o INS v. Delgado; INS factory surveys in search of illegl aliens were
conducted during work hours; employees were not expected to leave and

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 detention did not lengthen working hours- no coercive or custodial effect,
so no seizure
California v. Hodari; Physical force or submission to the assertion of authority.
o Accidental shooting not a seizure
o Fleeing suspect not seized until (1) complies with officers demand to
halt, or (2) officers apply force to stop him
o Assertions of authority must be complied with to be an arrest.

D. Open Fields/Curtilages
Open Fields
o Oliver v. United States: An open field is any unoccupied or undeveloped
area outside of the curtilage (of a home).
o 4th amendment doesnt protect property. (Lowered privacy in fields)
Curtilage
o United States v. Dunn; Curtilage test
(1) Proximity to the home, (2) Is the area within an enclosure
surrounding the home, (3) How is the area used, (4) Steps taken to
protect the area from observation by passerbys.
o California v. Ciraolo; The owner taking some actions to conceal a
curtilage does not preclude a police officer from going to a public place
where the officer has a right to be and which renders activities visible.
I.e.; Partial coverage doesnt stop officers from renting a chopper
to look from above.
California v. Greenwood; No expectation of privacy in garbage left for removal.

E. Probable Cause
Texas v. Brown; PC is more than 51%, does not mean probably
Informants
o Spinelli v. United States; Informants must prove (1) veracity (facts
showing informant credibility and reliability) and (2) base of knowledge
(underlying circumstances relied upon by informant)
o Anonymous informants can never be reliable; they can only provide
veracity
Departure from Aguilar-Spinelli test: Illinois v. Gates; Totality of the
circumstances to balance these.
Result of Gates is that extra corroboration can be used to shore up tips;
more of a common sense approach that doesnt require individual prongs to be
satisfied independently
o McCray v. Illinois; Due Process doesnt require the informants name be
disclosed.

PC for Issuing Warrants

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o Policy; Unwarranted searches presumed unreasonable, unless there is an
exception (which there usually is).
o Illinois v. Gates; Totality of the circumstances/Common sense based
balancing test for probable cause; can be shored up by corroboration
Magistrates determination of probable cause is to be paid great
deference by reviewing courts.
o Franks v. Delaware; Warrants may be issued on oath or affirmation;
Preponderance of the evidence to prove that it was a lie or perjury
Collective Knowledge- PC can be based on collective knowledge of
police department
Staleness of Information- case by case determination, considering:
(1) maturity of information; (2) nature of suspected crime (discrete v.
ongoing); (3) habits of accused; (4) character of items sought; (5) nature
and function of premises to be searched
PC Specificity and Reasonableness
Post-1967, could only search for fruits and instrumentalities of
crime; now, mere evidence is part of the scope
Warden v. Hayden- evidentiary material is no more private than
instrumentalities; there must be a nexus between item seized and criminal
behavior
PC as to Location of Evidence
Zurcher v. Stanford Daily- the critical element is whether there is
reasonable cause to believe specific things to be searched for/seized are
located on property
This extends to non-suspects premises as well
Residential searches upheld ONLY where some information links
criminal activity to s residence
PC Particularity of Description
Technical precision not required in all cases, but should have a
particularized description ; does not have to be elaborately detailed, only
reasonably specific
Fact that warrant is for wrong address will NOT be dispositive if
warrant sufficiently directs officer to right premises; consider hypo of two
or more apts. in same building
Breadth and Depth of Searches
Curtilages
Computer searches are extensive and thorough; based on case-by-
case

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F. Search/Arrest Warrants
Procedural
FRCEP 41(e)(2)(A), warrant must:
(1) identify person/property to be searched/seized and designate the magistrate to
whom it must be returned
(2) executed within specific time no longer than 14 days
(3) executed during daytime (6Am to 10 PM) unless good cause shown for
night operations (narcotics searches requires no such showing)
(4) return warrant to magistrate judge
FRCP 41(d)(3)(A) authorizing e-warrants; duplicate original warrant
MUST be prepared by officer and read/sent in written form verbatim to magistrate
General
o United States v. Santana; Homes threshold is a public place (behind it,
need a warrant)
o Lo-Ji Sales Inc. v. New York; Search warrant may be invalidated if (1) the
magistrate does not act neutral and detached or (2) the warrant fails to
specify the items to be searched or seized.
o Wilson v. Arkansas; Knock and announce implicit in 4th Amend.; not a
rigid constitutional requirement, but a compontent of reasonableness
inquiry
Richardson v. Wisconsin; No blanket exception to knock and
announce is allowed (may except police from knock and announce
on case-by-case basis, supported by reasonable suspicion that it (1)
would be dangerous or futile or (2) inhibit their investigation
United States v. Banks; 15-20 seconds is enough, based on what
police can know and perceive.
o Illinois v. McArthur; Police may lock down a scene in anticipation of a
warrant if (1) they have PC to believe there is evidence of a crime, (2) it is
reasonable to believe the evidence will be gone later, and (3) the restraint
is limited in time and police act promptly in getting a warrant.
o Maryland v. Garrison; Latitude for honest mistakes. If police know or
should have known then the warrant is invalid, if not then we allow the
mistake.
Waiting Time for Executing Warrants
US v. Knapp - officers take ram to door after 12 seconds; failure to
respond in 12s constituted refusal of entry
US v. Moore- 3 second knock and wait was virtually instantaneous and not
valid
if door is already open, or if officer tricks (but cannot lie to) homeonwer
into opening door, no violation of knock and announce
Search Warrants/Anticipatory Warrants
o United States v. Grubbs; Warrants may be issued so long as it is probable
that contraband or evidence will be found when the warrant is executed;

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 simply because it is contingent on future occurrence doesnt invalidate the
warrant
o Ybarra v. Illinois; Must have PC to search 3rd parties who happen to be in
a place (unless they are included in the warrant)
Michigan v. Summers; May temporarily detain those people
(occupants of premises) though
Summers rule is limited in geographic scope by Bailey v. US: once
occupant is beyond the immediate vicinity of premises to be
searched, LEO interests are diminished and intrusiveness of
detention more severe
Sneak and Peek Warrants
Gov. may delay notice of search if it can show immediate notification can
have adverse result: (1) endangering life/physical safety of individual; (2)
flight from prosecution; (3) destruction of/tampering evidence; (4)
intimindation of potential witness; (5) seriously jeopardizing investigation
Arrest Warrants
o Payton v. New York; A warrantless arrest in public is valid so
long as it is reasonable; this ends at the home (warrantless
entry to homes are illegal)
Arrest warrants carry a limited authority to enter a dwelling where
the suspect lives when there is reason to believe the suspect is
there.
DOES NOT extend to the home; heavily raised expectation of
privacy interest
US v. Holland- court finds no intent to broaden definition of home
to include entranceway or common hallway
Payton applies as long as arrestee has rightful possession of
hotel/motel room
o Gerstein v. United States; Polices determination of PC is enough for a
reasonable arrest; need PC determination by judiciary within 48 hours
after a warrantless arrest.
o Tennessee v. Garner; Arrest is unreasonable if force used is unreasonable.
See below for deadly force
o Steagald v. United States; Need search (not arrest) warrant to enter 3rd
partys home to make an arrest.

Hudson v. Michigan- violation of knock and announce DOES NOT justify

exclusion of evidence found in subsequent search

Private Citizens Along for the Search

US v. NY Tel. Co.- upon showing of PC, district judge has power to order unwilling
telephone company to assist gov. in installing pen registers
Willing assistance by private citizens OK, as long as they are not participating in the search
to further their own personal ends

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 Media ride-alongs are NOT justified; Wilson v. Layne- WaPo photographer and reporter
brought to search were not there to further purposes of search

Neutral and Detached Magistrate

Warrant issued by state AG is Invalid- Coolidge v. New Hamshipre
Shadwick v. City of Tampa- under Tampa law, municpal clerks (not lawyers) are
authorized to issue arrest wararnts for minor offenses
Justified- the two qualifications are met : (1) neutrality; (2) competence

G. Exigent Circumstances
Minnesota v. Olson;
(1) Hot pursuit of a fleeing felon,
(2) imminent destruction of evidence,
(3) the need to prevent a suspects escape, or
(4) the risk of danger to the police or other persons inside or outside the dwelling.
Public Safety Exception: Brigham City v. Stuart- police may enter home without
warrant if they have objectively reasonable basis fto believe occupant is seriously
injured or imminently threatened with injury
Michigan v. Fisher- extends Brigham City to domestic disturbance
Kentucky v. King; No such things as police created exigency (unless exigency is
caused by breach or threat of breach of the 4th am.)
Welsh v. Wisconsin; No exigency on crimes with no jail time- here, intoxicated at
home already; warrantless arrest not justified
Utah v. Stewart; Reason to believe in the exigency of bodily harm/death is
enough to warrant entry to resolve that situation.

Seizing Premises in Absence of Exigent Circumstances

Segura v. US- officers have PC to believe was trafficking coke; even if
warrantless entry was illegal, later search conducted pursuant to warrant was
based on independent legal source
Murray v. US- permissible to seize premises for reasonable period of time
while diligent efforts are being made to obtain the warrant

Exceptions to the Warrant Clause- ARRESTS

Arrests or Summons- Atwater v. City of Lago Vista: custodial arrest is ALWAYS
reasonable if officr has a PC of criminal violation; where custodial arrest is authorized
(even for minor violation like seatbelt violation), decision to proceed by arrest or
summons is totally wthin LEOs discretion
Public Arrests Without Warrant
US v. Watson- credit card sting operation; where misdemeanor/felony
committed in presence of officer, OK to arrest without warrant ; where officer
has reasonable belief that suspect is a felon, warrantless public arrest is
justified

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 Excessive Force in Arrest
Tennessee v. Garner- deadly force may NOT be used to prevent escape of
felon unless (1) necessary to prevent escape; (2) officer has PC to believe suspect
poses sig. threat of causing death/serious physical injury to officer or others

High-Speed Chases
Scott v. Harris- public-endangering flight can be stopped by LEO ramming
motorists car from behind
Baumhaw v. Rickard- pit maneuvers in high speed chases ok

Protections Against Erroneous Warrantless Arrests

County of Riverside v. McLaughlin- reasonable postponement of PC
determination understandable while police cope with everyday problems of
processing suspects in an overburdened system
However, unreasonable delay is found where (1) delays for gathering additional
evidence to justify arrrest; (2) delay motivated by ill wil against arrested individual
Remedy: exclusion ONLY if evidence obtained from unreasonable detention
Exclusion NOT required if magistrate would have found PC for detention

Material Witnesses
May be arrested and detained under 18 USCA 3144 IF: (1) they are material; (2)
may be impracticable to secure presence of material witness by subpoena
US v. Awadallah detained for 20 days without PC, based solely on purported
knowledge of persons involved; court upholds material witness detention as
reasonable
Ashcroft v. Al-Kidd: we do not look to motive of arresting officer, but whether
arrest is objectively justified

H. Terry Stops (Reasonable Suspicion)

Terry v. Ohio; An officer may detain a person they believe to be armed and
dangerous if they possess reasonable suspicion.
o Whenever a person is stopped, it is a (reasonable) 4th amendment seizure
o Whether a reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in danger.
o In light of experience and training.
o Stop limited in such a way as to discover weapons. (Frisk only).
United States v. Hensley; Need specific and articulable facts to support reasonable
suspicion.
Dickerson; Terry stops dont include grabbing and squeezing items that are clearly
not weapons/clearly cannot contain weapons (cant explore pockets after the
frisk).

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 Adams v. Williams; Officer may reach into exact place that they have reasonable
suspicion to believe a weapon is located.
o Facts and circummstances mattered here as well; high-crime area at
2:15AM
Terry Brightline Rules
Pennsylvania v. Mimms: stopped for expired license plate; officer can
ask individual to get out of car for a Terry frisk if there is a justifiable stop
Maryland v. Wilson: bright line Mimms rule applies to passengers as well
for public interest (police safety) and personal liberty (passengers stopped by
virtue of stop)

Dunaway v. New York; When a detention rises to that of a traditional arrest, need
probable cause.
o Florida v. Royer; (1) Personal property seized, (2) Informed they may
leave, (3) suspect was moved, and (4) police dominated atmosphere
essentially seized as oficers had his plane ticket and license and
could not leave airport without them
failure to cooperte in consensual encounter cannot be treated as
suspicious encounter justifying Terry stop
o Penn. v. Mimms; Balance officer safety with moving concerns (asking
suspect out of the car is minimal and thus is okay)
United States v. Sharpe; No specific/absolute time limit on terry stops. (1)
Diligent police action and (2) dont consider that less intrusive means might exist.
Hiibel; Obtaining a suspects name and identification serves important government
interests and is an officers right to demand identificationa s part of Terry
Illinois v. Wardlow; Unprovoked flight wherever it occurs, is the consummate act
of evasion; not necessarily indicative of wrongdoing, but certainly suggestive of
such
United States v. Place; Terry can apply to things as well; 90 minute detention of
while officers seize his luggage after arriving at airport unreasonable in absence
of PC
o Factors: (1) Length of detention, (2) seized from suspect directly, (3) effect
of seizure on the owner, (4) individual informed of where the property will
be.
Michigan v. Lang: protective searches justified beyond suspects person;
Terry permits limited examination of area where person, whom police reaosnably
bleieve is dangerous, might gain control of a weapon

Terry allows for stops under RS since it is less intrusive than arrest; Royer and
Ricardo- movement of suspect to custodial area requires PC and usually considered
arrest
Show of force (drawing guns, or handcuffs) during Terry stop must be reasonable

Reasonable Suspicion

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 Alabama v. White; RS is less demanding than PC ; information may be different in
quantity and content; less reliable information may lead to reasonable suspicion
RS is a fair possibility of criminal activity
US v. Windsor- 1:40 chance of finding right hotel room is RS; last 2-3 unsearched
rooms is PC
US v. Heard- face to face anonymous tips are presumed to be inherently more
reliable than an anonymous telephone tip; officers have opportunity to observe
demeanor and perceived credibility
US v. Brown- 911 caller NOT anonymous and sufficed or reasonable suspicion;
US v. Copening- 911 calls from unblocked number not anonymous
Quantum of Suspicion
Test for existence of reasonable suspicion
US v. Cortez- totality of circumstances: officers must have (1) particularized; and
(2) objective basis for suspecting person stopped for criminal activity
Lack of Reasonable Suspicion
US v. Rodriguez- recycled profile of suspicious behavior (looked Hispanic on a
known smuggling route, sat striaght up, did not acknowledge presence of officeers)
likely to sweep many ordinary citizens into generality of suspicious apperance is NO
REASONABLE SUSPICION

Relevance of Suspects Race

US v. Weaver (8th Cir. 1992)- young black LA gangs were flooding KC with coke;
only black male on flight from LA to KC and LA was source city for drugs, with no
ID
US v. Ramos (1s Cir. 2010)- post-Madrid train bombings; Middle Eastern
occupants in van for hours without picking anyone up, tinted windows- reasonable
suspicion
US v. Berry (5th Cir. 1982)- use of a profile is nothing more than administrative
tool of police; does NOT automotaically establish S

RS for Probationers and Parolees

US v. Knights- no more than RS required to search probationers home- inherent
that they do not enjoy absolute liberty
Samson v. CA- parolees expectation of privacy is substantially diminished since
liberty is conditional

I. Search Incident to Arrest

3 Main Precedents for Warrantless Searches Incident to Arrest
(1) Chimel v. California; spatial limitation: May search a person and the area
surrounding them for evidence connected with the crime contemporaneous with
the time of arrest.

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 o Extends to area in possession or control of the arrestee (area within
which he might gain possession of a weapon or destructible evidence).
o Chadwick- Grab area determination should be made at time of arrest, not
at time of search
(2) United States v. Robinson; Treat all custodial arrests alike (all have officer
safety concerns); if intrusion is lawful through custodial arrest, a search
incident to the arrest requires no additional justification
o Gustafson v. Florida; Even if the arrest is not required search may be
conducted
o Knowles v. Iowa; No search incident to citation
o Chadwick- exception to warrantless searches incident to reasonable arrest
with PC limited to personal property . . . immediately associated with
arrestee
Riley v. CA (2014)- refusal to extend automatic search under Robinson to
saerches of cellphones found on arrestee
(3) Arizona v. Gant; Rule of particular justification. (1) Arrestee is within
reaching distance of the passenger compartment at the time of the
search/reasonably believe that arrestee might access vehicle during time of search
or (2) it is reasonable to believe there is evidence of the offense of arrest in the
vehicle.
Independent exception- warrantless search of vehicles passenger
compartment OK when reasonable to believe evidence relevant to crime of
arrest might be found in vehicle- case by case facts

Arrest Power Rule and Vehicles

New York v. Belton; Lawful arrest means police may search the passenger
compartment of the vehicle (including closed containers).
o Thorton v. United States; Belton rule applies as long as arrestee was
recently an occupant of the vehicle (even if they get out before arrest)
Belton as opposed to Carroll, which allows police to extend grab area to
trunk
Riley v. California; Cellphones arent included in this area (need warrant)

J. Vehicle Exceptions

Search incident to arrest if (1) in reaching distance of arrestee at time of search or

(2) reasonable to believe there is evidence of the crime of arrest.
United States v. Chadwick; Once police have reduced luggage or other property
not immediately associated with the person to police control, a search of that
property is not longer a search incident to arrest and requires a warrant to search.
(Without PC to search container)
o United States v. Ross; A warrant to search a car, however, includes all
containers that might contain the items specified.

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 o Arkansas v. Sanders officers have no PC to search anywhere else in the
car when warrant was issued to specifically search the suitcase in the trunk
California v. Acevedo; Police may search containers within an automobile if the
search is supported by probable cause; no need to obtain warrant to search bag if
there is no PC to search entire car
o Wyoming v. Houghton; Includes passengers belongings.
o US v. Johns- delayed serches of containers justified; since Ross would
have authorized warrantless search of packages when they were removed
from trunk anyways

Carroll Doctrine- police may search automobile without warrant so long

as they have PC to believe it contains evidence of criminal activity, coupled with
exigent circumstances to believe vehicle could be removed from area before
warrant is obtained ; extends grab area to trunk access
Coolidge v. NH- first and last SCOTUS case to rule warrantless automobile search
as unconstitutinoal because of absence of exigency; cars do not actually have to
be mobile before officers can search without warrant
California v. Carney; Cars are (1) readily mobile and (2) in a setting that
objectively suggests use for transportation (i.e. on the road, in a parking lot). [RVs
are cars usually]
Pennsylvania v. Labron exigent circumstances NOT required to justify
warranteless searches of cars

Arrests that Violate State Law/Pretextual Stops and Arrests

Virginia v. Moore; Custodial arrest based on probable cause, even in
violation of state law, does not violate the 4th Am.

Whren v. United States; Focus on the objective intent of officers (ignore

subjective intent); officers having no PC or RS, but using investigatory pwoers
during minor stop to search for evidence ; here, traffic violation arrest not
rendered invalid by fact it was mere pretext for narcotics search
o US v. Chantasouxat- officers mistake of law cannot provide objective
grounds for RS or PC to justify traffic stop
o HOWEVER, Heien v. North Carolina; Mistake of law is acceptable on
officers part, so long as law is ambiguous and could be reaosnably read
as being violated
o Devenpeek v. Alford; Only need objective probable cause.
US v. Flores-Sandoval reasonable mistake of fact does NOT
automatically negate validity of stop

K. Plain View/Plain Touch Seizures

Horton v. California; (1) Item is in plain view. (2) Items incrimination character
is immediately apparent. (3) Police officers are lawfully present. (4) Officer has
legal justification to access the object itself.

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 o Arizona v. Hicks; Moving an item even a few inches is a search; must be
supported by all aspects of plain view to even move an item a few inches.
o Post-Hicks: officers must have PC to seize item he views during course of
legal activity- PC must be readily apparent to seize these plain view items
Commonwealth v. Sheridan (Mass. 2015)- plain view of personal amounts
of marijuana during stop does not constitute PC to search vehicle to seize drug
However, federal officers with PC can search car- since fed. Law
criminalizes possession

Minnesota v. Dickerson; Object whose contour or mass makes it identity

immediately apparent upon a lawful frisk; Terry justified only for protective
purposes and a search for evidence is NOT justified under Terry
US v. Miles (9th Cir. 2001)- officer exceeded scope of Terry by shaking small box
even though it was clearly not a weapon

L. Consent
Individual may set temporal or special limits on consented searches.
Schneckloth v. Bustamonte; Officer has the burden to prove consent was freely
and voluntarily given.
Consent may not be coerced; more than acquiescence to authority
Ohio v. Robinette; Individual need not be informed or freedom to consent or deny.
Bumper v. North Carolina; Claiming right of a warrant means the individual
searched is acquiescing to authority.
Matlock; Consent of one who generally have joint access or control for most
purposes is actual authority/right of co-inhbitants to permit inspection because
of assumption of risk of lowered privacy expectations when living with others
Disputed permission is not enough (non-consenting party must be present
at the threshold to dispute)
Georgia v. Randolph- even if one occupant consents, a physically present
co-occupants stated refusal to permit entry prevails; this refusal can only be
resolved throguh voluntary accomodation, not appeals to authority
Illinois v. Rodriguez; Apparent authority is enough. Objective standard,
reasonable man in belief that the consenting party had authority- here officers
reasonably believed GF had apparent authority to let them in
BUT US v. Dearing- live-in babysitter has no apparent authority to
consent to serch of employers house/bedroom
Florida v. Jimeno; Objective reasonableness standard for measuring the scope of a
suspects consent to search
Post-Jimeno- up to citizen rather than officer to clarify any ambiguity w/r/t
scope of search
Undercover evidence/activity to obtain consent is justified; misplaced confidence
is justified

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 Hoffa v. US- undercover agent invaded no protected area when invited to s hotel
room; not relying on security of hotel room but his misplaced confidence the union
official would not reveal his bribes

REFUSING CONSENT and Consequences

US v. Prescott- refusal to permit search/passive refusal to consent to
wrrantless search is privileged conduct NOT evidence of criminal wrongdoing
US v. Gonzalez-Basulto- nonexclusive list of faactors to voluntary
consent:
(1) volunariness of custodial status; (2) presence of coervice police procedures;
(3) extent and level of s cooperation; (4) s awareness of right to refuse
consent; (5) s education/intelligence
US v. Duran- if gives refusal to consent, police can threaten to get warrant
However, US v. Talkington- police cannot lie to suspect tellign they are in
process of getting a warrant so they should be allowed

United States v. Gregoire; Revocation of consent must be clear and explicit

(expressions of frustration during search/about length is insufficient)
US v. Dyer- revocation MUST be made before search complete
M. Protective Sweeps

Maryland v. Buie; A quick and limited search of the premises, incident to an arrest
and to protect the safety of police and others.
o Police may look inside of a place from which an attack may be
immediately launched.
o Extending the search; need articulable facts.
o Search should take no longer than the arrest.

N. Special Needs
Includes: enforcnig school discipline, public safety, and administrative
efficiency
New York v. Berger; Commercial premises are regulated; may be entered for
regulatory purposes. ; Camara v. Municipal Court- gov. safety inspecters not
required to have PC before entering home a reasonable admnistrative scheme
Safford Unified School Dist. v. Redding; Suspicion must match the degree of
intrusion. (Bra case)
United States v. Aukai; Security increases must be matched to what is
constitutionally reasonable; constitutionality of airport screening does
NOTdepend on consent- this has to be random to prevent terrorism
City of Ontario v. Quon- reasonble grounds for searching through gov.
employer given phone when it was for work-related investigatory purpose

O. Inventory searches

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 South Dakota v. Opperman; No warrant necessary for inventory searches of cars
(general caretaking function)
a. Protects department from false claims of misplaced property
b. Protects owner from theft
c. Protects public and police from potential danger
Illinois v. Lafayette- inventory search at police station of shoulder bag
belonging to man arrested is justified
Colorado v. Bertine- officers can inventory contents of van, including
containers and bags
HOWEVER, Florida v. Wells- opening of locked suitcase cannot be justified as
inventory search where department has no policy whatsoever concerning opening of
closed containers
Where officers act without guidelines or disregards guidelines to obtain evidence,
cannot be justified as inventory search
US v. Parr- search unjustified as inventory search where items were selectively
investigated

P. Border Searches
Border patrol/searches; Fixed checkpoints are okay for border patrol; roving
patrols need reasonable suspicion.
(1) less expectation of privacy at borders; (2) search can include removal,
disassembly, and reassembly of vehicle parts
RS sufficient to detain border travelers- US v. Montoya de Hernandez
Post-Montoya there are 2 types of border searches:
(1) routine searches done without suspicion
this includes patting down and lifting individuals shirt up (US v.
Charleus) or canine sniffs
US v. Ickes- search and perusal of all information on harddrive and
SSDI is routine
(2) non-routine searches done with reasonable suspicion
this includes more intrusive cavity searches
Definition of borders expands at airports and ports- port of calls, etc.
US v. Martinez-Fuerte- reasonable distance from any external boundary of US
allowed: (1) permanent checkpoints at or near intersections of important roads
leading away from border; (2) temporary checkpoints at strategic locations; (3) roving
patrols
US v. Ortiz- warrantless searches away from border are unconstitutional unless
based on PC

Checkpoint Style Stops

Michigan State Department of State Police v. Sitz
o Test; (1) States interest, (2) effectiveness of the method, (3) level of
intrusion.

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 Delaware v. Prouse; Need reasonable suspicion to stop someone who is not
moving through a checkpoint (to check vehicle registration)
City of Indianapolis v. Edmond; Cannot have checkpoints to stop innocents to
check for ordinary criminal wrongdoing.
o Look at purpose of the policy.
o Must be primarily safety-based and divorced from states general interest
in law enforcement
US v. Davis- checkpoint not invalidated by secondary purpose of drug
interdiction; if primary purpose had been for Court endorsed purpose (i.e. drunk
driving or checking licenses, or safety related interest), then constitutional

Searches beyond scope of law enforcement:

Florence v. Board of Chosen Freeholders- justified strip searches for even
those arrested for minor offenses;

DNA Testing
Maryland v. King- legitimate gov. interest in DNA testing and corrsponding
legislative act; DNA as just a more accurate version of fingerprinting

III. Remedies for 4th Amendment Violations

A. Standing
Minnesota v. Olson; Social guests have a legitimate expectation of privacy
(Exclusive test)
Rakas v. Illinois; Individual must have a legitimate expectation of privacy in an area
to have standing.
Minnesota v. Carter; Factors to determine type of guest
o (1) Business or residential interaction, (2) Previous connection between
individuals involved, (3) Time period on the premises
o persons temporarily on premises for commercial transaction have no 4th
amend. Rights at stake

Abolishing Automatic Standing

US v. Salvucci- possession of seized good should not be used as substitute for
factul finding tht the owner had a legitimate expectation of privacy in good searched
Ownership of seized property does not necessarily confer standing
Rawlings v. Kentucky- ownership of drugs NOT enough to confer right to object
to search; gave woman drug to put in her purse, no legtimate expectation of privacy
US v. Padilla- no automatic standing to challenge where person is member of
conspiracy that owned the property to be searched/seized

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 B. Exclusionary Rule
Weeks v. United States; Birth of the exclusionary rule. Applies to federal action
only.
Wolf v. Colorado; 4th Amendment applies to states, but the exclusionary rule
doesnt. (Most of the english speaking world doesnt require exclusion)
Mapp v. Ohio; Exclusionary rule applies to state and federal violations of the 4th
Amendment.
o Policy: (1) Government should lead by conduct, (2) judicial integrity.
United States v. Leon; Police should be able to reasonably rely on a warrant
unless (trust what judge tells them)
o (1) Magistrate didnt act neutrally or detached, (2) Officers acted
recklessly or dishonestly in affidavit, (3) Officer could not have believed
PC existed.
Provides for good faith judgment on magistrates- no evidence that
exclusion will have deterrent effect on them ; same as administrative,
judicial clerks, etc (Illinois v. Krull- error was legislatures fault, so
exclusion unwarranted)
So long as there is room for argument, good faith exception will
apply

Exceptions
o United States v. Janis; No exclusion in civil trials (unless it shocks the
conscience)
o Hudson v. Michigan; No exclusion simply for a knock and announce
violation.
o Herring v. United States; To trigger exclusion, police conduct must be
sufficiently deliberate that exclusion can deter future conduct. Objective
reasonableness is the test. Good faith exception.
Systematic error or reckless disregard of constitution leads to
exclusion.
Knowingly ommitting material information that would have
resulted in magistrates refusal to issue warrant
o Davis v. United States; exclusionary rule does not require suprpession
when LEOs execure search in compliance with binding SCOTUS
authority that is later ovrruled
o US v. Lucas- good faith exception NOT applicable where person who
issues warrant is affiliated with law enforcement (i.e. Director of
Corrections)
Alternatives to Exclusion
Bivens 1983 recovery; issues- (1) officers usually have qualified immunity; (2) nominal
damages do not help aggrieved party

C. Shocks the Conscience

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 Rochin v. California; Due process violations that shock the conscience are
excluded regardless of the type of violation.

D. Fruit of the Poisonous Tree

An item that is suppressed because it is found due to unlawful seizure of other

items.
o (1) Identify the constitutional violation, (2) identify the fruit, (3) Identify a
causal link between the fruit and the tree, (4) Is there an exception?

Causation Requirement and Attenuation Exception

Ker-Frisbie Doctrine
The body of a person, as distinct from evidence, is not subject to exclusion
An illegal arrest of a person does not deprive the court to try that person;
upholding extradiction of suspects to the US for trial
Breaking the causal chain
Brown v. Illinois- illegal seizure, but Miranda warnings (delivered twice) broke
causal chain, so subsequent statements even one induced by continuing effects of
unconstitutional custody was admissible so long as (1) it was voluntary, and (2) not
coerced
US v. Hernandez- consent can break the chain of causaton;
Factors test considering: (1) temporal proximity of illegal conduct and
consent; 92) presence of intervening factors; (3) purpose and flagrancy of initial
misconduct
however, here officers suspicion was aroused after illegal manipulation of
bag, and immediately asks for consent- NO breaking

Exceptions
o Silverthorne; Independent source- evidence will not be excluded if it is
(1) obtained independently and (2) without reliance on any illegal police
activity
o Murray v. United States; Independent source (obtained in a way that is
untainted by an unlawful search). Preponderance standard to prove.
Nix v. Williams; inevitable discovery- gov. must prove by
preponderance that challenged evidence would have been discovered
through independent legal means
Circuit Split: US v. Andrade (9th Cir)- inevitable discovery through
routine DEA inventory search OK; US v. $639,558 (DC Cir.)- refusing
to paply inevitable discovery to routine searches- allows too much
leeway for officers to jsuzt wait for routine search and rely on that
o Wong Sun v. United States; Attenuation factors
(1) Length of time elapsed between illegality and discovery of
fruit, (2) Flagrancy of misconduct, (3) Existence or absence of

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 intervening causes of seizure of the fruit, (4) Presence or act of free
will by the defendant.
United States v. Ceccolini; Witnesses are presumed to be
attenuated.

IV. Confessions The Voluntariness Requirement

A. Tortures and Confession
Hector (A Slave) v. State; Voluntariness is a matter of law to be determined by the
court.
Any amount of torture is presumed to render a confession invalid.
o Threats of violence, promises of non-prosecution, threats f the death
penalty render a confession invalid

B. Confessions General Concerns

Colorado v. Connelly; Due process focus is on police misconduct rather than

suspects state of mind
o Post-Connelley- courts find it irrelevant suspect was drunk, high, mentally
impaired, emotioanalyl vulnerable during confession
Spano v. NY; Factors (1) Age, (2) Education, (3) Emotional/Physical Disability,
(4) Number of officers, (5) length of questioning, (6) Location of questioning
Schmerber v. CA; 5th Am does not protect against physical evidence (i.e. speaking
certain words, writing samples, lineups)
Green v. Scully- police are allowed to use deceptive interrogation techniques to
get confessions
Florida v. Cayward- fabricated documents are not allowed; thy turn confessions
involuntary

V. Miranda The Self Incrimination Clause/Interrogation

A. Miranda (The Basics)
Triggered by custody and interrogation.
(1) Accused is adequately and effectively advised of his rights.
(2) Right to remain silent, anything said can and will be used against them.
(3) Right to counsel not only before interrogation, but during.
(4) State must offer to pay for an attorney
May be accompanied by a knowing and voluntary waiver.
o Government has the burden to prove waiver.
Oregon v. Elstad; Failure to administer Miranda warnings creates a presumption
of compulsion.
o Voluntary statements before Miranda rights are applied do not taint
subsequent discoveries based on those statement (No fruits for Miranda)

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 o If a prior statement is coerced balance (1) passage of time between
confessions, (2) change in place of interrogation, (3) change in identity of
interrogators to see if coercion carries over.
Dickerson v. United States; Miranda is a constitutional decision/interpretation and
applcation by the Court; cannot be overruled by an Act of Congress.
2 Step Interrogations; Missouri v. Seibert; A statement repeated after a warning in
a situation in which the police are trying to illicit a confession, then give Miranda,
then immediately ask again is inadmissible.
o Factors; (1) Completeness of the first round of questioning, (2)
Overlapping content of statements, (3) Timing and setting of first and
second, (4) Continuity of police personnel, (5) Degree to which the rounds
were continuous.
o Steps; (1) Was there a deliberate attempt to subvert Miranda, (2) More like
Elstad or Seibert, (3) Interrogator took any curative measures
Bobby v. Dixon- Seibert does NOT apply where unwarned statements and
Mirandized statement are about different (even if related) crimes

McNabb-Mallory rule (FRCP 5)- must take without unnecessary delay

before magistrate judge

B. Miranda Exceptions
Illinois v. Perkins; Miranda not required for undercover agents.
o Suspect is unaware they are being interrogated; no coercion.
Harris v. New York; Impeaching Witness: Statements taken in violation of
Miranda can be used to impeach a defendant.
o New Jersey v. Portash; Statements of pure 5th Am. Violation cannot be
used in impeachment.
New York v. Quarles; Public safety exception. Immediate necessity of
ascertaining information.
Mincey v. Arizona; Involuntary Confessions/Impeachment- if confession is
involuntary, as opposed to merely Miranda-defective, it CANNOT be admitted
even for impeachment purposes
Doyle v. Ohio: Impeachment with Prior Silence- implicit assurance from
warnings that silence will carry no penalty
US v. Patane- physical evidence from Miranda defective confession still
admissible

C. What is Custody?
Berkemer v. McCarty; Miranda custody occurs whenever the reasonable person
would believe their freedom of action is curtailed to a degree associated with a
formal arrest; Terry stops are NOT custodial for Miranda purposes
o Orozco v. Texas- four officers enter bedroom at 4AM to elicit
information= custody

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 o Beckwith v. US- IRS agents invited in to dining room to discuss
investigation- no custody ; no coercive feeling
o US v. Courtney- confession not custodial where met agents in public
restaurant
Stansbury v. CA- subjective state of mind of officer is irrelevant in deciding
custodial status
JDB v. N. Carolina- childs age should be tken into account for custodial sttus;
children feel more bound to police questioning than adults
Mathis v. US- in jail for non-tax related reasons; interrogatoin by IRS through
Miranda-defective questioning violated constitutional rights even though he was
already in custodial setting- NOT per se rule
o Garcia v. Singletary- question is whether officials conduct would cause a
resasonable persont o believe his freedom of movement was further
diminished

D. What is Interrogation?
Rhode Island v. Innis; Interrogation is questioning initiated by police that is
either (1) express questioning or (2) its functional equivalent.
o Functional equivalent; Words or actions that are reasonably likely to elicit
an incriminating response from the suspect.
o Words associated with arrest dont count. (I.e. giving arrest sheet)
Maryland v. Shatzer; Being in jail alone is not custody.
Johnson v. State; Not every express question is interrogation; look at context of
question.
Confronting Suspect with Incriminating Evidence
Edwards v. Arizona- interrogation found where officers played for suspect
a recorded statement of associate implicating him in crime
People v. Ferro- interrogation found where officers placed fruits of s
crime in front of cell
US v. Green- no more prototypical functional equivalent of interrogation
where suepect is shown video of him engaged in criminal act

Exceptions to Interrogation
Pennsylvania v. Muniz- routine booking exceptions allow for questions
ttendant to custody to be excluded as interrogation
Courts consider: (1) proper adminstrative purpose for question; (2) does
questioning officer regularly book suspects; (3) whether information needed for
booking purposes

E. Waiver and Invocation

Waiver
North Carolina v. Butler; Express statements constitute a waiver; silence alone
cannot. Written or oral statements OK

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 o Silence coupled with knowing and understanding of the rights may
constitute a waiver.
Moran v. Burbine; Waiver is personal, no need to consult with counsel. (Even if
they attempt to contact you)
Berghuis v. Thompkins; Waiver may occur where suspect was (1) informed of
rights, (2) understood those rights, and (3) answered questions anyway [without
invoking rights].
o Waiver must be (1) knowing and (2) voluntary.
Colorado v. Springs; suspect does not need to know all possible lines of
questioning in advance of interrogation to determine voluntary and knowing
intelligent waiver

Invocation of Right to Silence

Edwards v. Arizona (Miranda Shield); An accused who invokes the right to
counsel may not be questioned again until counsel has been provided.
o Minnick v. Mississippi; A suspect who is not in custody breaks Edwards
shield.
Michign v. Mosley- as long as suspects right to cut off questionig is
scrupulously honored, then waiver is found (after police cut off interrogation
immediately, then retry 2 hours later for a confession, OK)- need a cooling down
period
Berghuis v. Thompkins- suspect who has received and understood
warnings, and has not invoked his rights to silence, waives the right to remain
silence by making uncoerced statement to police
Oregon v. Bradshaw; Initiation on part of the accused happens when they can be
fairly said to represent a desire to open up a more generalized discussion relating
directly or indirectly to the investigation.
o Just asking for water doesnt open you up to interrogation.
Davis v. United States; Suspect must unambiguously request counsel; reasonable
police would understand the request for an attorney
Bobby v. Dixon; Miranda may not be invoked unless interrogation is imminent.

Exceptions to Waiver
Smith v. Zanst- found to be incapable of understnading Miranda because
he had 65IQ, under extreme stress, warnings read oncwe quickly
US v. Garibay- waiver not knowing/understanding if there is language
barrier

VI. The Sixth Amendment Right to Counsel

A. The Basics
Trigger; Brewer v. Williams; Initial appearance before a magistrate; Indictiment.
o Beginning of Adversarial proceedings.

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 Basics; (1) Deliberately elicited statements, (2) outside presence of counsel, (3)
without Waiver, (4) Regarding triggered offense.

B. Deliberately Elicited
Massiah v. United States; Government conduct designed to elicit an incriminating
statement from a defendant in the absence of counsel is in violation of the 6th
Amendment.
United States v. Henry; Deliberate elicitation means deliberately putting an agent
in a situation where it is likely that he will hear incriminating statements.
o Kuhlmann v. Wilson; Informant must do more than simply listen.
Brewer v. Williams; Deliberate elicitation is a subjective test.

C. Without Waiver

Patterson v. Illinois; If the accused knowingly and intelligently initiates a

conversation and waiver 6th Am. Rights, statements may be used at trial.
o Written waivers given in Miranda stage may carry over to waiver for 6th
Am. privileges. No need to mention anything special about it being a 6th
Am. right.

D. Offense Specific

McNeil v. Wisconsin; Sixth Am. rights are offense specific (Can ask about other
crimes)
Blockburger test. Offenses are only the same when elements of one offense are
necessarily included in the elements of another offense.

E. Suppression

Kansas v. Ventris; Statements taken in violation of 6th Am. are suppressed for
general use.
o No suppression for impeachment.
o 6th Am. Violation occurs when the statement is taken. (Not when it is
used at trial)

VII. Eyewitness Identification

A. 6th Amendment Concerns

United States v. Wade; Suspects are entitled to the aid of counsel during pre trial
lineups.

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o Triggered the same way as normal 6th Am. (Beginning of adversarial
procedures)
o May be admitted if the in court identification does not rely upon the prior
lineup that occurred in violation of 6th Am (state burden, clear and
convincing evidence)
Factors; (1) Prior opportunity to observe the criminal at, (2)
discrepancy between pre-lineup description and the actual
description, (3) identification of another person prior to the lineup,
(4) prior identification by picture, (5) Failure to identify defendant
on a prior occasion, (6) Lapse of time between the act and the
lineup, and (7) Acts committed during the lineup.

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