Académique Documents
Professionnel Documents
Culture Documents
o In General
US Constitution 4th Amendment: “The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.”
US v. Verdugo-Urquidez (1990): “The People” as a Limiting Term
• Facts: Mexican citizen/resident apprehended by Mexican police and transported to US for
trial on federal drug charges. US officials, working w/Mexican police, conducted
warrantless searches of the defendant’s Mexican residence
• Holding (Rehnquist): The 4th Amendment does not apply to a search of property that is
owned by a non-resident alien and located in a foreign country
• Reasoning: “The people” is a term of art that refers only to a class of persons who are part of
the national community or have otherwise developed sufficient connection w/the US to be
considered part of the community
• Note: 5 Justices indicated they would have held that the 4th Amendment applies to searches
of illegal aliens conducted within the US
State Action Requirement: The 4th Amendment is interpreted to only provide protection against
intrusion perpetrated by the government and those acting in conjunction with the government
“Search” and “seizure” are legal terms of art that impair different interests
• Search: The part of the government action that is investigative; impairs privacy
• Seizure: Government exerts physical control over a person or property; impairs possession
or freedom of movement
• The 4th Amendment only applies to searches and seizure—if neither then no constitutional
protections
o THE THRESHOLD QUESTION: IS IT A SEARCH?___________________________________________
Katz v. United States (1967)
• Facts: Police Officers thought that D was transmitting information related to illegal gambling
from a public phone booth and recorded the conversations with an electronic listening device
attached to the outside of the booth without a warrant.
• Holding: The 4th Amendment governs not only the seizure of tangible items, but extends to
the use of electronic surveillance equipment
• Concurring (Harlan): In order to be recognized as a search or seizure: (1) a person
must have exhibited an actual (subjective) expectation of privacy and; (2) that
expectation must be one that society is prepared to recognize as reasonable
• Reasoning: The 4th Amendment protects people, not property. The government was not
certain that his activity was illegal until they listened to the conversation—potentially
invading the legitimate privacy and possessory interests of the innocent.
• Note: Harlan’s concurrence set the “expectations of privacy” standard. Prior to Katz, the
threshold search and seizure question focused on property rights
Super-Crim-Pro 4
• Note: Eventually, Justice Harlan reconsidered his own formulation b/c he believed the
objective prong of the standard could become impossible to meet if the government
regularly engaged in intrusive behaviors
• US v. Dunn (1987)
o Facts: D’s ranch was surrounded by exterior and interior barbed wire fences. POs crossed both
fences and then noticed the smell of chemicals used in manufacturing narcotics coming from a
barn. POs approached barn, shined light through netting and observed a drug lab inside.
o Holding: In determining whether property is inside curtilage, the court should consider
factors including: (1) proximity of the area to the home; (2) whether the area is included
within an enclosure surrounding the home; (3) nature of the uses the area was put to; and
(4) steps taken by the resident to protect the area from the observation of passerby
Reasoning: Barn was 60 yards from hose, outside of the area enclosed by inner fence, no
objective indication that barn was used for private (e.g. romantic) interests, and there was
no protection from observation of passerby in surrounding open fields where POs stood
o Caution: Visual observation from area outside curtilage alone does not permit physical search
into the home, curtilage, or any other unclear area
• Bond v. US (2000)
o Facts: D was a passenger on greyhound bus which was stopped for a border check. The PO
checked immigration status, then began to walk up the aisle and gently squeeze all soft packages
in the overhead compartments including D’s. D admitted the bag was his own, consented to a
search, and PO found a brick of methamphetamine.
o Holding: An individual has a reasonable expectation of privacy from exploratory touching
of bags accessible to the public
o Reasoning: The public doesn’t ordinarily touch luggage in this manner (foreseeability)
o Professor: This likely would have come out differently if the PO touched the bag w/a flat palm in
the manner the public does
o Note: If D told the PO it was not his bag, then that equates to abandonment and opening it is not
a 4th Amendment protected search
• Kyllo v. US (2001)
o Facts: Acting on a tip that D grew marijuana, POs used a thermal imaging device outside the
house on public property and confirmed that abnormal heat consistent w/hydroponic lamps was
emanating from the home
o Holding: The use of sense-enhancing technology to obtain information regarding the
interior of the home that could not otherwise have been obtained without physical intrusion
constitutes a search
o Reasoning: Sanctity of the house, technology not in the public domain
o Professor:
This case breaks from public-access precedent and it is unclear whether the crucial
fact was the technology or the home.
Not clear how the court will reconcile Place w/Kyllo if the drug-sniffing dog is
brought to the house?
Super-Crim-Pro 7
Reliance on the foreseeability of intrusive technology as the test for reasonable
expectations reiterates Harlan’s criticism of his own test, and the novelty of the
technology at the given date s a poor test b/c a case can last for years w/o resolution
in the judicial system before resolution
o WARRANTS______________________________________________________________________
Constitutional Interpretation
• Natural reading of the 4th Amendment seems to lead to the conclusion that warrants aren’t
necessary, but if they are used then probable cause is needed
• However, the Supreme Court reads the 4th Amendment under the assumption that the drafters
believed searches would only take place w/warrants, and therefore that a warrant and
Probable Cause are required unless an exception applies
• Although the people who argue for warrants won the syntax debate, the “reasonableness”
argument has won the pragmatic argument b/c the vast majority of searches/seizures will fall
into the exceptions category (probable cause is not always necessary, reasonableness is)
The Reason for the Warrant Requirement
• Johnson v. United States (1948)
o Facts: POs received information that D was smoking opium in his hotel room. An hour later, PO
searched the apartment w/o a warrant
o Holding: Barring exceptional circumstances, police need to obtain warrants from neutral
magistrates prior to searches
o Reasoning: Preserve the record and prevent POs from building probable cause after the fact
o Policy: Protect the competing interests of citizens against POs in the heat of search
Check the PO’s discretion
Make the warrant approval objective
Warrants set forth the specific terms of the search
Affidavit creates a record
Demonstrating Probable Cause
• Aguilar v. Texas (1964)
Super-Crim-Pro 9
o Facts: POs executed a search warrant which was issued upon a PO’s affidavit that he had
“received reliable information from a credible person and do believe” that narcotics were being
illegally stored on the described premises.
o Holding: A conclusory statement absent a description of the underlying circumstances
sufficient for a neutral magistrate to make an independent determination of validity is
inadequate to establish probable cause
• Spinelli v. United States (1969)
o Facts: FBI to obtained a search warrant on the basis of an application stating that a reliable
informant told the FBI that D was a bookie who used two phone numbers out of an apartment in
Missouri corroborated by evidence he traveled from Illinois to a Missouri apartment w/two
phone numbers
o Holding:
If the veracity and basis of knowledge both exist, then probable cause exists to
issue a warrant based on an informant’s tip
If either veracity or basis of knowledge do not exist, then the magistrate can use
the information in addition to significant PO corroboration to conclude that
sufficient probable cause exists to issue a warrant based on an informant’s tip
o Two-Part Test:
Reliability: Veracity (Trustworthiness)
• Established by: (1) Generally believable; (2) Proven record as an informant; (3)
Motive to be helpful to the police; (4) Accomplices’ statements against interest
Credibility: Basis of knowledge
• Established by: (1) Disclose of the source (e.g. observation, rumor, etc...); (2)
Self-verifying detail
o Professor: Under Aguilar-Spinelli, an argument can be made that the corroborative information
must itself be incriminating in order to satisfy probable cause.
o Caution: The rigid Aguilar-Spinelli two-prong test has been overruled by Gates. However, NY
and several other states have retained it and it is still used by Federal courts as a factor under the
Gates test
• Illinois v. Gates (1983)
o Facts: POs received an anonymous letter that Ds made their living by trafficking in drugs, had
drugs in their house, and set forth a modus operandi of how they obtained the drugs and gave
dates for the next purchase. POs were able to confirm that Ds’ activities were as predicted in the
letter (wife drove her car to Florida, checked into room, husband had reservations to fly to
Florida, car headed north the day after the husband arrived). Search warrant was issued, executed
and revealed drugs and weapons
o Holding: Although the Aguilar-Spinelli two-prong test is a highly relevant factor in
determining whether probable cause exists, a magistrate’s decision is to be based on a
common sense analysis of the totality of the circumstances rather than conformity to a rigid
set of rules
o Reasoning: The anonymous letter alone would not provide sufficient basis for probable cause
under Aguilar-Spinelli b/c it provided nothing from which the POs or magistrate could conclude
reliability or credibility. However, the high degree of detail in the corroboration is enough for a
common sense decision that probable cause existed
o Professor: Gates makes it easier to get warrants in two circumstances particularly: (1) If one
prong of the Spinelli test is very strong, it salvages the weak prong; and (2) Makes it clear that
corroboration of innocent facts is sufficient to bolster the inference of culpability
• Maryland v. Pringle (2003)
Super-Crim-Pro 10
o Facts: PO pulled over a car for speeding at 3:15 am, there were three occupants, when D
reached for his registration in the glove compartment, PO observed a large roll of cash. PO
asked D if there were any drugs or weapons in the car, D said, “no” and consented to a search
that revealed $763 and five glassine bags containing cocaine found behind the back-seat armrest.
None of the three men offered any information regarding the ownership of the drugs or money,
and all were arrested and transported to the station
o Holding: If sufficient probable cause would exist to arrest a single suspect, then sufficient
probable cause exists to arrest multiple suspects when it is a reasonable inference absent
“singling out” information that any of the suspects had particular knowledge of the crime
or exercised dominion over the incriminating evidence
o Professor: The quantum of suspicion necessary for Probable Cause is clearly less than a
preponderance of the evidence
• Whitley v. Warden (1971)
o Holding: Once a PO demonstrates to a magistrate that probable cause exists to arrest a
suspect, any other PO can make the arrest on the assumption that the warrant is valid
absent independent knowledge
o Policy: Practicality
o Note: This is known as the rule of “collective knowledge”
The Types of Things That Can Be Searched or Seized
• Warden v. Hayden (1967)
o Facts: D was convicted of armed robbery based, in part, on the introduction of a cap, a jacket,
and trousers, which had been discovered during a search of D's home. The clothing matched the
description of clothing having been worn by the perpetrator of the armed robbery. D received
federal habeas corpus relief (throwing out the conviction) from the Circuit Court b/c at the time
the Fourth Amendment permitted only the “fruits and instrumentalities” of a crime to be
admitted and not “mere evidence”
o Holding: Probable cause must be examined in terms of the nexus b/w the item to be seized
and criminal behavior creating cause to believe that the evidence sought will aid in
apprehension or conviction – mere evidence can be seized (in addition to fruits,
instrumentalities, and contraband)
o Reasoning: POs could reasonably believe that the items would aid in the identification of the
culprit
o Professor: In practice, probable cause that defendant committed a crime will almost always
provide sufficient Probable Cause for a magistrate to issue a warrant to search defendant’s home
o Notes: rejecting the “mere evidence” rule expands for PO’s and prosecutor’s the parameter’s of
acceptable searches.
• Zurcher v. Stanford Daily (1978)
o Facts: D was a newspaper photographer suspected of having photos of demonstrators who
attacked POs. Warrant authorized POs to search his office, including other employee’s cabinets
and files.
o Holding: There is nothing special about an innocent third party’s premises—the question
remains whether there is probable cause to believe that evidence of a crime will be found in
the place specified
o Reasoning: Often POs do not know the identity of the criminal early in an investigation, and the
innocent third party may not be innocent at all
• Winston v. Lee (1985)
o Facts: D shot during the course of committing a robbery. POs obtain court order forcing D to
undergo surgery to remove bullet lodged 3 cm below the surface of his skin—involving disputed
medical risks
Super-Crim-Pro 11
o Holding: A search may be so intrusive and extreme that it is unreasonable even though
pursuant to a warrant based on probable cause
o Reasoning: Although pursuant to a warrant and Probable Cause, reasonableness is always
required, and the intrusiveness in the absence of a compelling need for the bullet was
unreasonable
o Note: Additionally, a magistrate may find a warrant application unreasonable even if probable
cause exists when the scope is too broad
o Technical Requirements of a Warrant
Requirement 1: Neutral (Detached) Magistrate
• Coolridge v. New Hampshire (1971)
o Facts: Warrant issued by the State Attorney General
o Holding: Warrants must be issued by members of the judicial branch
o Reasoning: The State’s head of law enforcement is not “neutral and detached”
o Note: Members of the judiciary are not neutral and detached when they are paid more for issuing
warrants or where they act as a “rubber stamFp” and do not read the application
• Shadwick v. Tampa (1972)
o Facts: Warrants issued by judicial clerks w/o legal training
o Holding: Clerks, and any member of the judiciary, qualify as fair and neutral even if they
do not have any legal training
o Reasoning: Our legal system has long entrusted non-lawyers to evaluate the most complicated
burdens of proof including beyond a reasonable doubt
Requirement 2: Reasonable Particularity
• Technical precision is not required under the 4th Amendment, only reasonable particularity is
necessary
o Policy Behind the Particularity Requirement
Particularity of the premises prevents general searches (a practice used by England
against the colonies) of a whole block by requiring that the PO identify a specific
address
Particularity of the things to be seized is necessary to create a record for the
determination if the POs execution of the warrant was reasonable
o Professor: In practice, prosecutors will often make sure that the warrant contains some “little
things” (e.g. bullets used in the gun) in order to expand the permissible scope
• Maryland v. Garrison (1987)
o Facts: Warrant authorized the search of a 3rd floor apartment, although there in fact where two
apartments on the 3rd floor. POs were unaware of this b/c utility company and phone records
only indicated one residence, and upon examination the POs only observed one buzzer for the 3rd
floor in the lobby. Before realizing they were in the wrong apartment, POs found contraband in
D’s apartment which led to his conviction
o Holding: Reasonable particularity is determined by the nature of the item sought or place
to be searched and the information that the PO had or reasonably should have had prior to
the warrant application
o Reasoning: Warrant upheld because the police conducted an appropriate investigation and
reasonably believed there was only one residence on the 3rd floor
o Note: A mistaken street address will render a warrant defective if there is no description of the
premises on the warrant
o Note: A warrant to search a house permits the search of any containers on the premises or in the
curtilage which reasonably could contain the item specified in the warrant
Requirement 3: Reasonable Execution
• Wilson v. Arkansas (1995)
Super-Crim-Pro 12
o Holding: The Framers intended the warrant clause’s reasonableness standard to include
the practice of knocking and announcing absent exigent circumstances
o Policy: (1) Actually safer to knock and announce then to run the risk of a mistaken home
invasion; (2) Prevents the unnecessary destruction of property; (3) Protects the individuals
privacy rights (not caught while fucking on the living room couch)
o Exigency Policy: (1) Safety of the officers and suspect; (2) Destruction of Evidence; (3) Flight of
the suspect
o Note: It is D’s burden to establish a prima facie case that entry was unannounced
• US v. Banks (2003)
o Facts: POs knock and announce, waited 15-20 seconds, then busted through the door. D was in
the shower and didn’t hear them until they busted in.
o Holding: Exigency is determined from the perspective of the government
o Reasoning: It was reasonable for POs to believe D was in the process of destroying evidence
o Caution: This does not create a per se narcotics exception b/c if the amount of drugs was very
large, then the exigent circumstances after knocking would not exist
o Note: Magistrates may issue no-knock warrants when sufficient cause can be demonstrated to do
so ahead of time
• The Patriot Act, “Sneak and Peek” Warrant
o Permits government agents to covertly enter suspected terrorist affiliated individual’s home or
office w/o notice and search their belongings on an ongoing basis
o Policy: The new law enforcement model is proactive rather than reactive and shifts the focus to
conspiracy laws and other earlier interventions
o Criticism: The only check on the sneak and peak executing searcher is the judiciary absent an
adversarial process
o US v. Edwards (1974)
Facts: D arrested for attempting to break into a post-office at midnight. Next day,
after inspecting window D tried to break in through, POs noticed that the paint was
chipped. POs seized D’s shirt and trousers the morning after he was arrested and
subjected them to lab analysis which reveled matching paint chips
Holding: POs may search incident to arrest following arrest when it is
impractical to search simultaneous w/arrest
CAUTION: This case is an anomaly and is founded on the “booking” rationale
Burke: anomalous case – timing for search must usually be close to simultaneous
to the arrest
PRETEXT STOPS AND ARRESTS
Super-Crim-Pro 23
• Whren v. US (1996)
o Facts: UC POs out looking for drugs in a high-crime area. Observe 4 young black men (Ds) in
their car, grows suspicious b/c looking down in passengers lap. POs turn to follow car, and Ds
begin to speed. POs pull over car w/probable cause of a moving violation, identify themselves as
POs. PO claims to observe 2 bags of crack in D’s lap. Ds concede violation of a minor traffic
violation, but argue that UC POs only pulled over b/c they were subjectively looking for drugs.
o Holding: Pretextual stops/arrests for the purpose of triggering exceptions to the warrant
clause (e.g. Terry, searches incident to arrest) are permissible under the 4th Amendment
o Reasoning:
Subjective intentions play no role in ordinary probable cause 4th Amendment analysis
Law enforcement practices involve so many variables that they cannot be properly
assessed by a judge
o Professor: Under Whren, DAs instruct POs to make pretextual stops when they are not sure if
they have reasonable suspicion
o Criticism: Empirical Data has supported the claim that POs stop based on race and scholars have
linked unfruitful pretextual stops within a community to a greater likelihood of jury nullification
o Note: This is not really an exception to the warrant requirement
o CAUTION: The officer still must have reasonable suspicion or Probable Cause to believe that
the motorist actually committed a traffic violation
EXCEPTION 4: EXIGENCY
• In General
o Many of the other exceptions to the warrant clause are grounded on the exigency exception’s
rationale (e.g. Search incident to arrest is somewhat justified on the position that arrestees may
destroy evidence)
o Exigency is an exception to the warrant requirement, NOT to Probable Cause
o Requirements
Probable Cause to search/seize
Articulated explanation why it was unreasonable to obtain a warrant in the
circumstances due to: (1) possible imminent destruction of evidence; (2)
officer/public safety (e.g. domestic violence investigations); or (3) suspect flight (the
“hot pursuit doctrine”)
• Illinois v. McArthur (2001)
o Facts: POs informed from D’s wife that D had marijuana under his couch—creating probable
cause that would be sufficient to obtain a warrant. POs detain D from reentering his house for 2
hours, during which time they obtain a search warrant.
o Holding: Under minor exigent circumstances, POs may prohibit suspects from interfering
w/evidence, maintain the status quo, and then obtain a warrant
• Welsh v. Wisconsin (1984)
o Facts: POs receive tip that D was driving erratically, swerved his car off the road, and walked
home. POs go to his w/o a warrant (Peyton problem), he refuses to submit to a breathalyzer, and
is arrested for DWI.
o Holding: Minor offenses do not justify the exigency exception
o Reasoning: In 1984, DWI was not considered as serious as it is today
o Professor: Exigency is an exception to most rules of criminal procedure in that the “seriousness”
of the crime has a bearing on the degree of exigency
• Richards v. Wisconsin (1997)
o Facts: POs had a warrant to search the premises of a suspected large scale drug operation, but
didn’t want to knock and announce b/c of the possibility of destruction of evidence and reports
that Ds were armed and dangerous
Super-Crim-Pro 24
o Holding: The exigent circumstances exception applies both to the warrant requirement
and to the knock-and-announce requirement
o Note: Although there is no per se exigent circumstances in a large scale narcotics case, exigent
circumstances will almost always be found
• Impermissibly Created Exigency
o A common defense to the application of the exigency exception is that “the POs created the
exigent circumstances” for the purpose of avoiding the warrant requirement (e.g. POs conduct a
“knock and talk” and then claim exigent circumstances)
EXCEPTION 5: THE AUTOMOBILE EXCEPTION
• In General
o Distinguishable from: (1) Terry frisk of a car; and (2) Search incident to arrest in the automobile
context
o CAUTION: This is its own exception to the warrant requirement where Probable Cause is
required for the search not for the arrest
• Carroll v. United States (1925)
o Facts: Ds driving in a known bootlegger area stopped, Probable Cause existed to believe alcohol
was in the car b/c Ds were known perpetrators. POs search car w/o warrant and find the booze
o Holding (Taft): POs may search an automobile w/o a warrant whenever probable cause
exists to search the automobile
o Reasoning: Not practical to secure a warrant due to the cars ability to move out of the
jurisdiction
• Chambers v. Maroney (1970)
o Facts: Ds pulled over b/c car matches description of one leaving robbery. D is wearing same
clothes as witnessed, and Ds are arrested. Car is brought back to station and searched w/o a
warrant. Gun is discovered.
o Holding (White): No difference b/w searching a car at the station and at the time of stop b/c
the POs could have searched w/o a warrant at the time of arrest
o Reasoning: Exigency like rationale, even though realistically the car isn’t going anywhere
o Professor: White is known for not valuing the warrant clause
• Coolidge v. New Hampshire (1971)
o Facts: POs seize a car parked outside D’s house, bring back to station, then search on several
occasions
o Holding (plurality): Carroll is inapplicable to parked cars b/c there is no exigency concern
o Reasoning (Stewart): A parked car is no more mobile than luggage
o Dissent (White): This case is indistinguishable from Chambers
o Professor:
If you were to decide this case based on Justice White’s logic in Chambers , then the
search would be permissible (keep in mind that the disposition of the court changes
over time and as alliances are formed)
Notably, Justice Stewart’s narrow interpretation of “mobility” requiring the police to
see the car in motion when seized has never garnished a majority vote
o CAUTION: This case was overruled by Cardwell
• Cardwell v. Lewis (1974)
o Facts: Parked car seized from a public lot
o Holding: Carroll applies to parked cars b/c cars are inherently mobile
o Reasoning: Expressly rejects Stewart’s reasoning in Coolidge
• Michigan v. Thomas (1982)
Super-Crim-Pro 25
o Holding: For the purposes of the automobile exception, a case-by-case analysis is not
required to determine whether an automobile is “mobile.”
o Reasoning: Preference of a bright line rule
o Note: Limits Coolidge to its facts—only applies to cars parked at owner’s residence
• California v. Carney (1985)
o Facts: POs had a tip that D was using his motor home as a sex-for-drugs trading point. POs set
up an observation post and establish probable cause after seeing several individuals leaving his
establishment in a short period of time. POs enter w/o a warrant.
o Holding (Burger): The automobile exception to the warrant requirement is justified by the
“ready mobility” of the automobile AND the diminished expectation of privacy in one’s car
o Reasoning:
Mobility is determined under White’s broader “it’s movable, not it’s moving”
Harmonizes Coolidge on the additional expectation of privacy grounds
o Note: The court had to come to the conclusion in this case that the motor home was more car
than house b/c D didn’t have it docked and plugged in to a generator.
EXCEPTION 6: SPECIAL NEEDS SEARCHES
• In General
o Although the warrant clause is theoretically still the predominant clause of the 4th Amendment,
the Supreme Court has applied the reasonableness clause to searches conducted for purposes
other than traditional criminal law enforcement (E.g. School discipline, public safety)
o General Rule: If the governmental search or seizure is designed to effectuate special needs
beyond criminal law enforcement, then the Court engages in a balancing of interests under the
reasonableness clause to determine what safeguards must apply
• On the Basis of Reasonable Suspicion Rather then Probable Cause
o New Jersey v.. T.L.O. (1985)
Facts: School official searched the handbag of a student w/reasonable suspicion to
suspect cigarettes in purse. Drugs found.
Holding: Reasonable suspicion is sufficient to conduct a “special needs” non-
criminal search
Reasoning: Conducted by a school official not a PO, punished under a school
regulation not a crime, diminished privacy expectations in a school
Minors have reduced expectations of privacy at school
• Suspicionless Searches
o Skinner v. RR Labor Executives Ass’n (1989)
Facts: Program mandating drug tests of all RR personnel involved in train accidents
Holding: The government’s interest in regulating the conduct of RR employees
to ensure safety presents special needs beyond law enforcement that justify a
departure from the usual Probable Cause or reasonable suspicion requirements
Note: This case marks a trend towards the application of the special needs doctrine to
suspicionless, programmatic, nondiscretionary searches
o Board of Ed. of Pottawatomie County v. Earls (2002)
Facts: Program mandating drug testing of all students who participate in competitive
extracurricular activities (e.g. future farmers, band, choir, athletics)
Holding: The government’s interest in regulating the drug abuse problem in
schools presents special needs beyond law enforcement that justify suspicionless
searches of student participants in extracurricular activities
Super-Crim-Pro 26
Reasoning: Securing order of the national youth drug abuse problem in the school
environment requires greater control than those appropriate for adults, and
participation in extracurricular activities further diminishes expectations in privacy
Note: The required individualized suspicion to drug test political candidates b/c there
was less of a public safety concern and the inherent safeguard of public scrutiny
(Chandler v. Miller)
o Ferguson v. City of Charleston (2001)
Facts: State hospital began drug-testing prenatal mothers in response to the “crack-
baby” epidemic. Positive tests were forwarded to law enforcement for prosecution
Holding: Although the ultimate goal of a suspicionless search presents special
needs beyond law enforcement, if the immediate objective is to generate evidence
for law enforcement purposes then the special needs exception does not apply
Reasoning: The prevention of drug-induced birth complications presents a special
need, but its advancement relied on traditional law enforcement means
EXCEPTION 7: BORDER SEARCHES
• In General
o Routine Border searches are automatically reasonable and do not require Probable Cause
or reasonable suspicion
o Justification:
This exception has been in place since the drafting of the 4th Amendment as a
protection of sovereignty
People entering the country have a diminished expectation of privacy
o Note: This is an exception to the warrant AND the reasonableness clause
• Non-Routine Border Searches
o US v. Montoya de Hernandez (1985)
Facts: D, traveling from Columbia, matches drug courier profile and strip search
reveals bulge in her abdomen. D refuses to consent to X-rays and is detained to pass
balloons
Holding: Non-routine border searches of an individual’s person require
reasonable suspicion
Reasoning: Reasonable suspicion existed to believe she was a balloon swallower
Note: Lower courts developed a line of cases where searches exceeding a routine
search are unreasonable without reasonable suspicion (e.g. body cavity, tearing car
apart)
o US v. Flores-Montano (2004)
Facts: POs pick out D’s car for a random search and dismantle his gas tank w/o
reasonable suspicion. The government stipulated that no reasonable suspicion existed
Holding: Reasonable suspicion is not required for the non-routine border search
of an automobile—it is automatically reasonable
Professor:
• The reasoning raises questions b/c the court explicitly states that Montoya-
Hernandez did not require reasonable suspicion—it merely existed
• The court distinguishes between highly intrusive searches of persons and highly
intrusive searches of automobiles.
• Additionally, the court distinguishes between highly intrusive searches of
automobiles and highly intrusive searches that cause a destruction of property
o Border Searches Away From the Border
Almeida-Sanchez v. US (1973)
Super-Crim-Pro 27
• Facts: D car was stopped while 25 miles from the Mexican border. POs had no
reasonable suspicion or Probable Cause. Search discovered marijuana.
• Holding: A discretionary stop by a roving patrol conducted away from the
border requires reasonable suspicion and a search requires Probable Cause
(traditional 4th Amendment rules apply)
• Reasoning: A person being stopped has no notice, and there is always a potential
for abuse when stops are made on a discretionary basis
US v. Ortiz (1975)
• Facts: POs stopped D’s car at a fixed checkpoint away from the border where cars
were stopped and searched on a discretionary basis.
• Holding: A discretionary search at a fixed checkpoint away from the border
requires Probable Cause
• Reasoning: The risk of abuse of discretion is just as great as a roving patrol
US v. Martinez-Fuerte (1976)
• Facts: Car given notice of fixed checkpoint stop
• Holding: Non-discretionary stops of automobiles at fixed checkpoints away
from the border do not require reasonable suspicion or Probable Cause
• Reasoning: Suspicionless checkpoint stops away from the border are necessary
law enforcement tools and the great public interest outweighs minimal intrusions
EXCEPTION 8: ROADBLOCKS, CHECKPOINTS, AND SUSPICIONLESS SEIZURES
• In General
o Similar to the border checkpoints, but the governmental interest is not the special exception for
protecting the border
o Rather, the governmental interest is law enforcement (e.g. DWI, drugs)
• Delaware v. Prouse (1979)
o Facts: No roadblock. D pulled over on PO’s discretion absent reasonable suspicion.
o Holding: Discretionary stops absent reasonable suspicion are unreasonable
o Dicta: Non-discretionary roadblocks may be reasonable w/o reasonable suspicion
o Dissent (Rehnquist): The court’s suggestion that a roadblock is better than discretionary stops is
based on “misery loves company” equal protection rationale
• Michigan Department of State Police v. Sitz (1990)
o Facts: PD program permitted POs to set up checkpoints at their own discretion and briefly stop
drivers for questioning and examination of intoxication
o Holding: Only reasonable suspicion is required to stop automobiles at fixed checkpoints
and conduct minimally intrusive searches
o Reasoning:
Although the court claimed not to be relying on special needs, the court did note the
state’s heavy interest in eradicating drunken driving
This case is an extension of Terry
o Professor: After this case, it seemed that POs could set up any roadblock they wanted if the cars
were stopped non-discretionarily and the search was minimally intrusive
• Indianapolis v. Edmond (2000)
o Facts: Drug interdiction checkpoint where car would be stopped, license and registration asked
for, visible inspection of car, look for signs if driver is under the influence, car sniffed by drug-
sniffing dog
o Holding (O’Connor): If the primary administrative purpose of a checkpoint is to uncover
evidence of ordinary criminal wrongdoing, then the roadblock exception does not apply
Super-Crim-Pro 28
and the government’s interest does not outweigh the intrusiveness to the individual
under a special needs analysis
o Reasoning: There is no non-law-enforcement connection b/w drugs and roads
o Note: Distinguishes Whren when the government’s purpose is “programmatic” rather than based
on the individual PO’s subjective purpose
o Dicta:
A checkpoint with the primary purpose of preventing a terrorist attack or catching a
fleeing criminal would be reasonable w/o Probable Cause or reasonable suspicion
A checkpoint with a law enforcement secondary purpose would be permissible
o Professor:
This case is problematic b/c Sitz is decided under Terry rather than special needs, and
the level of intrusion is the same b/c under Place drug sniffing dogs do not even
constitute a search
Edwards is completely avoidable and the only reason the government lost is that they
were stupid enough to stipulate that drug interdiction was their primary purpose
• Illinois v. Lidster (2004)
o Facts: Informational roadblock a week after a hit and run death. Set up in same place as death, at
roughly same time. Car would be stopped for 10 to 15 seconds, asked information pertaining to
the accident, handed a flyer requesting assistance, and permitted to drive off. D approached the
roadblock, swerved, PO smelled alcohol on his breath, conducted sobriety test and arrested for
DUI.
o Holding: The government’s interest in roadblock’s with the primary purpose of
informational gathering present special needs beyond law enforcement the ordinary
requirements of reasonable suspicion or Probable Cause
o Reasoning: This case falls under Edmond’s re-characterization of the roadblock stop as a special
need
o Professor: The Supreme Court’s emphasis on the government’s objectives, while well-meaning,
is dependent on what the government says, not what it is actually doing.
EXCEPTION 9: INVENTORY SEARCHES
• In General
o Scenario: : In most jurisdictions, it is standard procedure for POs to inventory the contents of
automobiles and other containers held in their custody
o Justification: Protect the police from property claims, protect the individual’s property, protect
the POs and public from dangerous items
o Professor: This exception arises from the “community caretaking function” of POs viewed under
a special needs reasonableness balancing
• Cady v. Dombrowski (1973)
o Facts: PO1 in accident. PO2 searches car to prevent gun from getting into wrong hands. PO2
found evidence implicating PO1 in murder.
o Holding: Searches conducted for a community caretaking function are distinguishable
from law enforcement searches and are permissible absent reasonable suspicion or
Probable Cause
o Note: The courts have extended this “community caretaking function” to inventory searches
Used to check for valuables to protect police against fake property claims
Used to return valuables to the property owner (protects property owner)
Protects the public and police from anything dangerous that could be in the car
• S. Dakota v. Opperman (1976)
Super-Crim-Pro 29
o Facts: Warrantless inventory search of a car impounded for a parking violation. The search
was pursuant to the jurisdictions standard police procedures. POs broke open the lock of D’s car,
searched glove compartment, found marijuana.
o Holding: An inventory search pursuant to department regulations is reasonable in light of
legitimate state interests that outweigh the owner’s diminished expectations of privacy in
his automobile
o Note: Extended to inventory searches of an arrestee’s person prior to incarceration (Illinois v.
Lafayette)
o Professor: Inventory searches pursuant to regulations is a “special need” b/c the policy governs
the PO’s conduct and is evidence that the search is not conducted under traditional law
enforcement purposes
• Florida v. Wells (1990)
o Facts: POs opened a locked suitcase during an inventory search. The PD had no policy
concerning the opening of locked containers
o Holding: An inventory search is invalid if it is not pursuant to PD regulations, but doesn’t
have to be all or nothing if the POs discretion is limited by a standard
o Reasoning: It is equally permissible to have a policy permitting or denying the opening of all
closed containers, or a policy allowing the opening of all containers the PO cannot examine the
interior of from viewing the exterior
o Policy: A requirement that POs open all containers or none at all is not attractive to the PD b/c it
would be an inefficient use of scarce resources
o Dissent: The POs still have the discretion over whom to arrest, and therefore who will be
subjected to inventory searches
o CAUTION: If POs find evidence of criminal wrongdoing during an inventory search they must
continue to follow inventory regulations for the rest of the car
EXCEPTION 10: CONSENT SEARCHES
• In General
o POs will almost always ask for consent, even if they have a reasonable basis to believe that the
requirements of another exception exist
o Courts actively encourage POs to pursue consensual searches
o Professor: When the government has multiple grounds to support a search during a suppression
hearing, it seems that courts prefer to find the search lawful through consent b/c the presumption
that reasonableness requires a warrant is unnecessary when an individual voluntarily submits
themselves to a search
• Schneckloth v. Bustamonte (1973)
o Facts: PO stopped car w/burned out headlight. PO ordered D out, asked if he could search the
trunk. D said “sure, go ahead” and opened the trunk. PO discovered 3 stolen checks. D motions
to suppress on grounds he was unaware of right to deny consent.
o Holding:
Consent to search is determined from the totality of the circumstances and there
is no per se requirement that POs indicate the right to deny consent
Voluntary consent is determined by whether an objectively reasonable PO
would believe consent to search
o Reasoning:
The concept of waiver, used for absolute Constitutional rights, is distinguishable from
consent to search because the 4th Amendment’s protection is only against
“unreasonable searches and seizures.” If a consent is voluntary, then a search is
reasonable
Super-Crim-Pro 30
Relevant Factors In Determining Voluntariness: (1) Custodial status; (2) Police
demeanor; (3) Defendant’s demeanor; (4) Defendant’s education and intelligence; (5)
Use of threats and trickery; (6) Repeated requests
o Note: If the court viewed consent to search as a waiver of Constitutional rights, then POs would
have to secure a knowing an intelligent waiver requiring notification
o Note: A refusal of consent cannot itself be viewed as suspicious behavior, however it can be if it
is done suspiciously
• Distinction b/w Empty and Legitimate Threats
o Rule: If a PO threatens actions he cannot lawfully subject a defendant to, then consent to
search is involuntary
o Rule: However, if a PO threatens actions he can lawfully subject a defendant to, the
consent to search is voluntary
o Professor: Police are often very aggressive in the use of legitimate threats to get consent where
police have the discretion, as in Atwater, to arrest for low level offenses
• Trickery
o Professor: Depends on whether you look at it from the defendant’s perspective or if the lie
negates the possibility to voluntarily consent
o Note: No Supreme Court precedent on point
• Third Party Consent
o US v. Matlock (1974)
Facts: D was arrested in the front yard of his house. POs obtained consent from a
woman who shared the house w/D. D was the exclusive legal owner of the house.
Holding: Actual authority exists to consent to the search of a defendant’s
property when the third party has joint access or control of the property
Reasoning: Third party consent is not determined by the laws of property
Policy: A defendant assumes the risk that a joint user will consent to the search of
shared property
CAUTION: POs must inquire into the extent of a third-party’s authorized access
when it seems unlikely that the property is actually shared
o Stoner v. California (1964)
Facts: POs obtain consent to search D’s hotel room from the hotel clerk. POs
believed that the clerk had actual authority.
Holding: A search premised upon an erroneous view of the law of actual
authority is unreasonable
Reasoning: The hotel clerk doesn’t really share the property
o Illinois v. Rodriguez (1990)
Facts: POs obtained consent to search D’s apartment from ex-girlfriend who had
moved out of his apartment a month earlier and retained a key w/o permission. She
refereed to the premises as “our apartment” to the POs and they believed she still
lived with the defendant.
Holding: Consent to search is lawfully obtained by “apparent authority” when it
is reasonable for POs to believe that a third party has actual authority although
in reality the third party does not
Reasoning: The 4th Amendment assures reasonableness, and reasonableness is
determined by the POs actions not whether the defendant consents
• Scope of Consent
o Florida v. Jimeno (1991)
Super-Crim-Pro 31
Facts: PO stops D in his car, informs him that he is looking for drugs, and asks for
permission to search the car. D consents to the search, the PO comes across a paper
bag, opens it, and finds drugs. D contends that he only consented to a search of the
car and that additional consent should be required for a search of specific containers.
Holding: The scope of a search pursuant to consent is limited by the expressed
object of the PO’s request and where an individual would reasonably expect a
PO to search for that object
Reasoning: It is reasonable for a PO to believe that when a defendant consents to a
search of his car for drugs he consents to a search of unlocked containers in the car
Policy: A container by container requirement would result in fewer consents and run
contrary to the community’s interest in encouraging cooperation w/law enforcement
Note: it is up to the citizen to clarify any ambiguity concerning the scope of consent
EXCEPTION 11: THE PLAIN VIEW/PLAIN TOUCH EXCEPTION
• In General
o Plain View Doctrine Requirements
Must observe object from a lawful vantage point
Must have physical access to the object to be seized
Must be apparent that the object is seizable without even the slightest search
• Hourton v. California (1990)
o Facts: PO determines that Probable Cause exists to search D’s house for the weapons used to
effectuate a robbery as well as the proceeds of the robbery. Magistrate limits the search to the
proceeds (3 rings). PO searches D’s house, doesn’t find the rings, but comes across the weapons
and seizes them. PO testifies that he was looking for the weapons during the course of his search
and they were not “inadvertently” found.
o Holding: POs do not have to inadvertently come across evidence in order to seize it
pursuant to the plain view exception to the warrant requirement which permits the seizure
of evidence discovered in plain view during the course of a lawful search if Probable Cause
exists for its seizure
o Reasoning: The plain view doctrine does not create a general warrant b/c the scope of the search
is limited to areas the specified items could reasonably be found and the duration is limited until
those items are found
o Policy: 4th Amendment standards should be objective and are not determined by the subjective
motivations of individual POs
o Note: The plain view doctrine is not limited to evidence discovered in the course of executing a
search warrant. It may arise in every other context and exception to the warrant requirement
permitting a PO to conduct a lawful search.
o CAUTION: The plain view doctrine does not permit a “search” without a warrant b/c the police
must be somewhere they already have a lawful right to be. The possessory interest is implicated,
not the privacy interest b/c it is already in plain view. It would be wrong in any example to claim
that the POs were justified to enter a house or search a car pursuant to the plain view doctrine
• Arizona v. Hicks (1987)
o Facts: POs entered D’s apartment after a bullet went through his floor and injured a man in the
apartment below—creating Probable Cause to look for a shooter or weapons. One PO noticed 2
expensive stereo sets in the otherwise shitty apartment, and he moved the turntable so he could
read the serial number. He then phoned in the number, discovered the stereos were stolen, and
seized them.
o Holding: The plain view doctrine cannot be used as the basis for even cursory investigatory
searches to establish Probable Cause to seize evidence
o Reasoning:
Super-Crim-Pro 32
The plain view doctrine only applies after it is apparent that the thing is seizable
(instrumentalities, evidence, proceeds)
This search was only based on reasonable suspicion, and therefore its scope is limited
to the officer safety justifications of Terry and the stereo presented no threat
• Minnesota v. Dickerson (1993)
o Facts: PO lawfully stopped and frisked D pursuant to Terry after he saw him come out of a
known drug dealing establishment. In the course of searching for a weapon, PO felt a hard, pea
shaped object in D’s front pocket, determined that it was not a weapon, continued to prod it and
determined it was crack in a cellophane bag. PO seized the object, and it turned out to be crack.
o Holding: A plain touch exception to the warrant requirement exists whenever a PO
lawfully pats down a suspect’s person or property and feels an object whose contour or
mass makes its identity immediately apparent and establishes Probable Cause that would
render application for a warrant impractical
o Reasoning: Although the court found such an exception to exist, it found the POs actions in this
case unlawful b/c of the continued prodding after it was already determined that no weapons
were on D
o Note: Lower courts have extended this rationale to “plain hearing” and “plain smell”
PRIVATE CONDUCT
• In General
o The 4th Amendment only applies to governmental actors
o The government cannot avoid the 4th Amendment by engaging private actors as agents
• Skinner v. Railway Labor Executives Ass’n (1989)
o Facts: Drug testing procedures promulgated by private RR companies pursuant to Federal
regulations granting authority to do so and a strong preference for making the results accessible
to the government.
o Holding: The 4th Amendment may be implicated if the government indirectly compels a
search by a private party as its agent through legislation
o Reasoning: The governments clear endorsement and participation in the program
o Note: Federal regulations make private airport security government agents
• Walter v. US (1980)
o Facts: FBI agents received a package of films form a recipient to whom it was misdelivered by a
private carrier. The recipient had opened the package but did not view the films. The FBI
viewed the films.
o Holding: If a private actor searches an individual’s property and then notifies the law
enforcement, the governmental search cannot exceed the intrusion conducted by the
private actor absent a warrant
o Reasoning: A partial invasion of privacy cannot justify a total
• US v. Jacobsen (1984)
o Facts: FedEx accidentally tore open a package w/a fork lift and a manager who examined the
package for damage found it to contain a tube wrapped w/silver duct tape. The manager cut
open the tube and discovered a series of zip-lock bags containing white powder. They resealed
the tube and called the DEA, who reopened the tube, opened one zip-lock bag, conducted a field-
test, and confirmed that the powder was cocaine.
o Holding: A government agent may reopen a container previously opened by a private actor
o Reasoning: The agent’s reopening of the package enabled the government to learn nothing more
than what was learned during the private search, and the field test was permissible b/c a citizen
has no reasonable expectation of privacy in contraband
• Illinois v. Andreas (1983)
Super-Crim-Pro 33
o Facts: Border control agents conduct a legal search of a wooden crate and find drugs in the leg
of a table. They repackage the crate and conduct a surveillance process known as a controlled
delivery. POs see D drag the crate into his apartment and reemerge with it 30 to 45 minutes
later. The agents then researched the crate w/o a warrant.
o Holding: The simple act of resealing a container to enable government agents to make a
controlled delivery does not revive or restore privacy rights lawfully invaded
• Foreign Officials
o Rule: Evidence obtained by foreign police official from searches conducted within their country
is admissible regardless of compliance w/the 4th Amendment
o Exceptions: (1) The circumstances of the foreign search and seizure are so extreme they shock
the judicial conscience; or (2) the foreign search is a joint venture w/US agents.
In General
• Miranda is a product of the Supreme Court’s desire to regulate confessions prior to formal
charges by resorting to the alternative rationale of the privilege against self-incrimination
• This was only possible after the 5th Amendment was incorporated to the States in Malloy v.
Hogan (1964).
Miranda v. Arizona (1966)
• Facts: 4 cases were consolidated. D’s were arrested, formally or de facto, and the suspects
were detained in police custody at the station house. None were informed of their privilege
against self incrimination
• Holding: Custodial interrogation triggers the necessity to inform the defendant of
o The right to remain silent, AND
o That anything he says can be used against him in court, AND
o That he has a right to an attorney, and if he is indigent than an attorney will be provided
for him
• Reasoning: Confessions that violate the 5th Amendment prohibition of self incrimination are
distinguishable from the Due Process “voluntariness” test
• Policy: Fairness. The 5th Amendment is concerned with the incommunicado psychological
pressures placed on a defendant
• Dissenting: The majority’s rule reflects a general distrust of confessions and the assumption
that the police must be doing something to make defendant’s act against their own interest
• Professor: The majority provides for the new right to an attorney prior to formal charges.
This was the most controversial aspect b/c it brings the adversarial disposition of court to the
stationhouse
Dickerson v. US (2000)
• Facts: Congress attempts to supersede Miranda with 18 U.S.C. § 3501
• Holding (Rehnquist): Miranda is a constitutional decision and cannot be overruled by
an Act of Congress
Super-Crim-Pro 43
• Reasoning: Both Miranda and two other cases interpreting it were applied to proceedings
in state courts, over which the Supreme Court does not hold supervisory power. This is
evidence of its Constituional power
• Dissenting (Scalia): Several members of the majority have themselves stated that Miranda is
not a Constituional right but merely a prophylactic rule
• Professor:
o This case is problematic b/c it came after the long jurisprudence of Miranda exceptions
(impeachment, public safety, fruits) where the court justified its decisions on the basis that the
Miranda is merely a prophylactic rule and not constitutionally mandated
o Many argue that the Rehnquist Court’s decision was influenced by concern over the public
criticism the infamously conservative court would face if Miranda was overruled
• EYEWITNESS IDENTIFICATION_________________________________________________________
o In General
Eyewitness identification has traditionally been considered very strong evidence
There are several risks that contribute to wrongful convictions
• Risk 1: Police Suggestibility
• Risk 2: Witness conviction
• Risk 3: Difficult to recreate eyewitness identifications and impeach at trial
O IDENTIFICATIONS AND THE 6TH AMENDMENT RIGHT TO COUNSEL
US v. Wade (1967)
• Facts: D is arrested and arraigned for bank robbery. The FBI arranges for D to stand in a
lineup w/decoys absent counsel. Both eyewitnesses identify D at the lineup and at trial. D
attempts to suppress the witness identification at trial.
• Holding:
o After formal charges, a lineup identification absent counsel violates the 6th Amendment
and is inadmissible at trial
o An in court identification subsequent to a lineup identification is admissible if an
independent source exists for the witness’ identification sufficient to purge the taint of the
poisonous tree
• Reasoning:
o Once formal charges have been initiated, the out of court identification is a critical stage of the
proceeding and the defendant should have a right to the presence of counsel
Super-Crim-Pro 52
o The prosecution can apply Wong Sum to argue that the eyewitness identification is based on
the “independent source” of the witness’ own recollection
o Reliability Factors:
Prior opportunity to observe the alleged criminal act
Discrepancy between pre-lineup description and the defendant’s actual physical
description
Identification prior to lineup of another person
Identification by picture of the defendant prior to the lineup
Failure to identify the defendant on a prior occasion
Lapse of time between criminal act and identification
• Professor: The court’s concern for unfairness and per se solution that lawyers must be present
absent waiver is reminiscent of Miranda
• CAUTION: Wade is not applicable to the processing of scientific evidence b/c the defendant
can either retest it themselves or replicate it in court in a sufficient manner to attack the
prosecution’s case in chief on cross examination
Gilbert v. California (1967)
• Facts: Companion case to Wade
• Holding:
o Out of court identifications in violation of Wade are per se excluded
o In court identifications in violation of Wade are presumed excluded and the prosecution
has the burden of establishing the independent source of a reliable recollection
• Professor:
o The court’s picture of the lawyer’s role was as more active than reality, where the lawyer is only
an observer and a deterrent
o In practice, if the defense attorney observes a flaw in the lineup then they are likely to keep it to
themselves as grounds to exclude or impeach the identification at trial
• CRIMINAL DISCOVERY______________________________________________________________
Super-Crim-Pro 54
o In General
Discovery in the criminal context is nothing like the “liberal rules of civil discovery” where both
parties have a duty to fully disclose all information in order to whittle down to the truth
There is no mutual obligation to share information in the criminal context because there is no
symmetry at trial: (1) Instead of the preponderance standard, the burden is on the prosecution; (2)
The defendant has the right to remain silent and avoid incriminating himself; (3) The prosecution
has an interest in protecting witnesses from retaliation
F.R.Crim.P. Rule 16
• Limited discovery under the federal system
• Not constitutionally based
Independent Investigation
• NY has a Grand Jury preceding where the evidence against the defendant is kept secret
• Other jurisdictions have adversarial preliminary hearings that can be used as an opportunity
for discovery
Many prosecutors will choose to give discovery that is not required in order to: (1) Create
leverage to plead the case out; (2) Avoid appeal by erring on the side of safety; (3) Protect ethical
reputation
o Brady v. Maryland (1963)
Facts: Defense attorney asks to see statements of the defendant’s accomplice and the prosecutor
doesn’t turn over one of the statements where the accomplice admits to doing the killing
Holding: The prosecution has a constitutional obligation under the due process clause to
disclose exculpatory evidence during discovery
Note: After this case, defense attorneys flooded prosecutors with vague Brady requests
o US v. Agurs (1976)
Facts: Defendant is a prostitute that stabbed and killed a man and claimed self-defense. The
prosecution did not turn over the victim’s criminal record of assaults w/knives. D was unaware
of this information and made no requests. Challenged as a Brady violation after conviction.
Holding:
• If the government knowingly puts on perjured testimony then it is usually grounds for
reversal unless the government can prove that the lack of evidence was harmless
• If the government fails to disclose evidence in response to a vague request for
exculpatory evidence or Brady material then the prosecutor only has the affirmative
duty to disclose evidence the defendant shows would have created a reasonable doubt
Reasoning:
• A vague request is equivalent to no request at all
• In order to determine whether a piece of evidence was potentially exculpatory, the court
looks to the four corners of the record and weighs the value of the evidence
• In this case, the victim’s criminal record seems like it is material but the court concludes it is
not b/c the defense already knew that the knife was the victim’s
Professor:
• This was a compromise b/c it created an affirmative duty on the prosecution to disclose
absent a request, but it did not require the prosecution to disclose their entire work-product
• The materiality test is the most paradoxical aspect of Brady because it is defined in a
hindsight manner based on a review of the entire record
o US v. Bagley (1985)
Facts: D requests discovery of any deals the government made w/witnesses. The government did
not disclose an informant. D claims Brady violation b/c impeachment could change outcome.
Holding:
Super-Crim-Pro 55
• Nondisclosure of impeachment evidence is governed by the materiality standards of
Brady
• Undisclosed evidence is material only if there is some reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have been
different and the confidence of the outcome would have been undermined
• The more specific the request, the more likely that the suppression will be material in
the Brady sense
Reasoning: The court backed away from the Agurs test
Professor: The standard is helpful to appellate courts, not to lawyers at trial
o Wood v. Bartholemew (1995)
Facts: Prosecutor gives a polygraph to some witnesses and they fail. Nevertheless, the
prosecutor puts the witnesses on stand and doesn’t inform the defense of the failure. Polygraph
testimony is inadmissible in court. The defense cries Brady violation because it would have
changed the trial strategy.
Holding: Evidence of speculative exculpatory value is immaterial under Brady
Professor: The court avoids flatly declaring that inadmissible evidence is never material, but it is
hard to come up with any inadmissible evidence that would be
o US v. Ruiz (2002)
Facts: As a condition of the defendant’s guilty plea, he waived his Brady rights to impeachment
evidence
Holding: The government is not required to disclose exculpatory information under Brady
during guilty plea negotiations
Reasoning: If the defendant knowingly and voluntarily pleads guilty then potentially exculpatory
information is immaterial to his guilt
Professor: Prior to this case, the question about disclosing that your only witness died before trial
was in the air. The death of the witness changes nothing about the facts of the offense.
o California v. Trombetta (1984)
Facts: The government failed to keep an intoxication result on the machine.
Holding: No Brady violation exists unless the evidence at issue would have played a
significant role in the defense
o Arizona v. Youngblood (1988)
Facts: Government fails to preserve a semen sample on the victim’s clothing. Defendant argues
that had the semen been preserved, then it would have been exculpatory under Brady
Holding: Lost or destroyed evidence is not governed by the Brady materiality standard,
rather the defendant has the burden of proving that lost or destroyed evidence was lost or
destroyed in bad faith
Reasoning: There is no reason to believe that lost evidence is exculpatory unless it is lost in bad
faith
Professor: This issue is rare, and only comes up with sloppy police work or old cases. The court
looks to the totality of the circumstances to asses the reasonableness that the evidence was lost or
destroyed
Note: If the defendant does not have sufficient evidence to prove bad faith, they may request the
“State’s Best Evidence” jury instruction that the government lost their best evidence, and the jury
may infer that the lost evidence would have helped the defendant
o Williams v. Florida (1970)
Facts: A Florida rule required defendants to submit notice to the prosecution that they intended
to use an alibi witness
Holding: Defendants may be required by statute to disclose that they intend to use a
specific alibi witness
Super-Crim-Pro 56
Reasoning: Discovery of alibis is needed to prevent the defendant from blind-siding the
government with a fabricated story withheld until trial
CAUTION: The only claims the defendant may be required to disclose by statute are alibi and
insanity b/c either one can be completely fabricated and advance notice can verify legitimacy
o Wardius v. Oregon (1973)
Holding: The prosecution has a duty to disclose in advance any rebuttal evidence
discovered pursuant to a notice of alibi discovery statute
o US v. Nobles (1975)
Facts: Defense investigator interviews two prosecution witnesses prior to trial who back away
from the statements that they eventually make at trial. D wants to call the investigator to
impeach the witnesses, and the prosecution demands discovery of the investigator’s files.
Holding: Witness’ out of court statements must be disclosed to the opposing party after a
witness other than the defendant has testified on direct examination
Reasoning: Even if this was protected by the work product doctrine, it was waived by the
investigator testifying at trial
Note: This rule was codified by Fed.R.Crim.P. 26.2