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I.

Introduction to the Fourth Amendment


A. The Purpose of the Amendment and an Introduction to the Exclusionary Rule (30-34) Investigation and crime prevention involves uncooperative individuals; when the government seeks information without cooperation, it must consider the limitations imposed by the Fourth 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. Basics: Language ascribes the right to the people, not to one person o Differs from 5A and 6A in this way o Has been suggested that courts should focus on problems of how to regulate or control conduct of government so that these violations dont occur, rather than providing remedies for those who have suffered those violations

United States v. Verdugo-Urquidez (1990) Mexican citizen was apprehended by Mexican police and transported to US for trial; after his arrest, US officials conducted warrantless searches of his residences in Mexico Court held that the Fourth Amendment does not apply to a search of property that is owned by a nonresident alien and located in a foreign country. The people in the 4A means a class of 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. Purpose of 4A is to protect people of the US against abuses by their own govt, not govt action against aliens taken outside the US Brennans dissent: defendant had been convicted of violating federal law, and was thus subject to an extraterritorial application of American law. Its unfair to require him to obey their laws when the government doesnt. Court refused to decide whether an illegal alien living in the US would be protected, but five justices have indicated that they would be, reasoning that that group has sufficient connections. Rule: 4A does not apply to a search of property that is owned by a nonresident alien and located in a foreign country, even if the search was conducted by U.S. officials and he is prosecuted in the U.S. Rule: 4A probably does apply to illegal aliens living in the U.S.

The Reasonableness Clause and the Warrant Clause: 4A is set up in two parts o The first deals with unreasonable searches o The second with warrants Searches and seizures are presumed unreasonable unless carried out pursuant to a warrant. However, but when an exception to the warrant requirement applies, only the reasonableness requirement must be met. Rule: Searches and seizures are presumed unreasonable unless carried out pursuant to a warrant. Probable Cause: Minimum showing necessary to support a warrant application; it is not used to demarcate reasonableness generally in searches and seizures. Rule: The minimum showing necessary to support a warrant is probable cause. State Action Requirement: Provides protection only against the government and those acting in conjunction with it, but not private individuals Rule: 4A provides protection only againt the government and those acting in conjunction with it, but does not protect against searches or seizures by private individuals. The Amendment and the Exclusionary Rule: Two questions: o Does the 4A prohibit the kind of conduct at issue? o Should the evidence obtained by this violation be available as proof in a criminal trial or other proceeding? Exclusionary rule deals with the second question.

II. Triggering Fourth Amendment Protection


4A prohibits unreasonable searches and seizures, so the first question is: Did the governments conduct represent a search or a seizure? If not, it is not regulated by the Fourth Amendment. A. Search and Seizure, Determined by Legitimate Expectations (35-40) The Reasonable Expectation Test: Katz v. United States Katz was charged with placing bets across states, a federal crime. At trial, the govt. introduced evidence of his end of the phone conversations, overheard by

FBI agents who had attached a listening device to the outside of the public telephone booth. The Court of Appeals held that there was no 4A violation because there was no physical entrance into the area occupied by the petitioner. 4A is not a general right to privacy and does not focus on const. protected spaces; 4A protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not subject to 4A protection. o What he seeks to preserve as private, even in an area accessible to the public, may be protected.

Rule: A search does not occur when a person has knowingly exposed whatever is searched to the public, even if that object is in a private space such as ones home or at ones office. Rule: A search does occur when a person has sought to preserve as private whatever is searched, even if he does so in an area accessible to the public. Katz shut the door behind him, and was entitled to assume that the words he uttered would not be broadcast to the world. The Court rejects the old formulationthe trespass doctrinewhich held that the absence of such penetration foreclosed 4A inquiry. But the 4A governs nontangible items, so the reach of the Amendment cannot turn upon physical intrusion into any given enclosure. So it was a search and seizure; but did it comply with constitutional standards? o On one hand, the government didnt begin surveillance until investigation had established a strong probability re: what he was doing with the telephone. Moreover, the surveillance was limited in both scope and duration to the specific purpose of establishing his illegal conduct. A magistrate thus could have authorized this search and seizure. o On the other hand, they needed to go to a judicial officer. 4A requires them to present their estimate of probable cause to a neutral magistrate for detached scrutiny. The Court has never sustained a search on the ground that officers reasonably expected to find evidence. After-the-event justifications are suspect because they are too likely to be subtly influenced by hindsight. The procedure of antecedent justification is central to the Fourth Amendment.

Rule: A warrantless search is not reasonable simply because officers reasonably expected to find evidence. Harlan concurrence:

o A person has a constitutionally protected reasonable expectation of privacy in an enclosed telephone booth Person must exhibit an actual, subjective expectation of privacy, and that expectation must be one society is prepared to recognize The point is not that the booth is accessible to the public at other times, but that it is a temporarily private place Rule: In order to have a constitutionally protected reasonable expectation of privacy in whatever is searched, the person must have exhibited an actual, subjective expectation of privacy, and that expectation must be one society is prepared to recognize. (Katz) o Electronic as well as physical intrusion can constitute a violation o The invasion of a constitutionally protected area is presumptively unreasonable without a warrant Blacks dissent: o Wiretaps are not a search because they are not a tangible thing.

Notes on Katz: Katz sets forth a two-pronged test for determining whether govt. conduct constitutes a search. o Did the government offend the citizens subjective manifestation of a privacy interest? o Was the privacy interest invaded on that society is prepared to accept as reasonable or legitimate? N.B. Harlan was concerned that the reasonableness of privacy expectations could be determined by existing practices, and thus based on what govt. conditions us to expect, i.e., if govt. announces we will all be placed under comprehensive surveillance, we have no more privacy protected by 4A. o Privacy v. right to prevent intrusions Possible alternative: evaluate intrusions on a case-by-case basis re: whether they were reasonable under the circumstances B. Interests Protected by the Fourth Amendment After Katz (40-42) No legitimate privacy interest in illegal activity o So why was Katz protected? One answer: govt. wasnt certain his activity was illegal until the officials actually listened in, i.e., guilt was not certain before intrusion Rule: A person does not have a legitimate privacy interest in illegal activity or contraband. Three legit interests that can be impaired by govt. intrusion: o An interest in being free from physical disruption and inconvenience

o Certain information, though not indicative of criminal activity, can be personal and embarrassing o Citizen has an interest in control over and use of his or her property Seizures and Searches Implicate Different Interests: A seizure may occur without a search, and a search may occur without a seizure. o Search protects interest in maintaining personal privacy o Seizure protects interest in retaining possession of property A seizure is usually preceded by a search, but when a container is involved, the converse is often true. Rule: A search under the 4A implicates the persons interest in maintaining personal privacy. Rule: A seizure under the 4A implicates the persons interest in retaining possession of his propery. Note: A seizure is usually preceded by a search, but when a container is involved, the converse is often true. Soldal v. Cook County = Court held that for 4A purposes a seizure occurs whenever there is some meaningful interference with an individuals possessory interests in that property. Hence, the govts towing of the defendants trailer, even though they did not search it, was protected. Rule: A seizure occurs whenever there is some meaningful interference with an individuals possessory interests in the property taken. (Soldal v. Cook County) C. Applications of the Katz Test (42-84) Keep in mind: If the court finds that the police conduct is a search or seizure, it means only that the Fourth Amendment is applicable; the activity is still permissible if it satisfies the 4As reqs. 1. Subjective Manifestation Individuals must take affirmative steps to protect their privacy interests. Rule: To exhibit a subjective expectation of privacy, individuals must take affirmative steps to protect their privacy interests. The abandonment of property is usually considered inconsistent with the retention of any subjective privacy or possessory interests, so police detention and investigation of abandoned property does not trigger 4A.

Rule: The abandonment of property is usually considered inconsistent with the retention of any subjective privacy or possessory interests, so police detention and investigation of abandoned property does not trigger 4A. o Whether abandonment has occurred is question of intent that can be inferred from acts, words, or other objective facts. A citizen who attempts to protect his private property from inspection after throwing it (in response to a police officers inquiry) has clearly not abandoned that property. Smith v. Ohio.

Rule: A person who attempts to protect his private property from inspection after throwing it somewhere (in response to a police officers inquiry) has not abandoned that property. (Smith v. Ohio) But abandonment is often found when a person denies ownership of a container in the face of police inquiries.

Rule: Abandonment is often found when a person denies ownership of a container in the face of police inquiries. Abandonment is sometimes considered an issue of standing.

Note: Abandonment is sometimes considered an issue of standing. 2. Open Fields Open fields had been distinguished from homes before Katz, and is still valid after Katz because a person has no legitimate expectation of privacy in an open field. Rule: A person has no legitimate expectation of privacy in an open field because an open field is not an effect. It does not matter if the field has a locked gate, a sign that says no trespassing, and no way in except by walking several hundred yards, since these do not bar the public from viewing them. (Oliver v. United States) Oliver v. United States = Court held that a person has no legit expectation of privacy in an open field, even if the field has a locked gate, a sign that says no trespassing, and no way in except by walking several hundred yards. Open fields are not effects within the 4As scope. o An individual cant demand privacy for activities conducted outdoors in fields, except in the area immediately surrounding the home. o Open fields are not the setting for the intimate activities that the 4A shelters from govt. interference or surveillance. o Not generally true that fences and signs bar the public from viewing open fields.

o Only curtilage, not neighboring open fields, warrant 4A protection. Curtilage is defined by reference to facts that determine whether an individual can expect an area immediately adjacent to the home to remain private. o An open field doesnt have to be open or a field. Defining Curtilage: Rule: 4A does protect curtilage, as an extension of the home. This is a fact-specific inquiry that is resolved by reference to four factors: Proximity of area to the home; Whether the area is included within an enclosure surrounding the home; The nature of the uses to which the area is put; and Steps taken by the resident to protect the area from observation by people passing by. (United States v. Dunn) United States v. Dunn (1987) Court held that a barn fifty years from a fence surrounding a home was on 200 hundred acres of property was not curtilage. Curtilage questions are resolved with four factors: o Proximity of area to the home; o Whether the area is included within an enclosure surrounding the home; o The nature of the uses to which the area is put; and o Steps taken by the president to protect the area from observation by people passing by. Even if property is within curtilage, a visual inspection o that property from outside the curtilage does not constitute a search. 3. Access by Members of the Public Even if you make efforts to keep something private, if youre not successful, you fail the society is prepared to accept prong. If an aspect of a persons life is subject to scrutiny by other members of society, person has no legit expectation in denying equivalent access to the police. Basically, this is public-access-therefore-police-access Rule: Even if a person makes efforts to keep something private, if they are not successful, than they have not met the society-is-prepared-to-accept prong. This is best understood as the public-access-therefore-police-access doctrine. Rule: A person has no legitimate expectation of privacy in information he has voluntarily turned over to a third party. Consensual electronic surveillance:

Law allows frustration of actual expectation of privacy by using testimony of associates who turn informants because the defendant has to realize (and thus assume) the risk that his companions could report him to the police. (United States v. White)

Rule: The government does not conduct a search when it uses the testimony of associates who turned informants because the defendant assumes the risk that his companions could report him to the police. (United States v. White) Financial records: Banks were required to report each deposit involving more than $10,000, which could be made available to other govt agencies. The Court held that this was not a 4A search because the banks were parties to these transactions, which precludes them from a legit expectation that the govt would not have access. (California Bankers Assn v. Schultz) Rule: The government does not conduct a search when it requires banks to provide information about certain deposits; because the banks were parties to these transactions, the depositor has no legitimate expectation that the government would not have access. (California Bankers Assn v. Schultz) Pen registers: Smith v. Maryland = police installed a pen register, a device that records all numbers called by defendant from his home phone. Court found that the use of the device was not a search, because a person has no legit expectation of privacy in info he voluntarily turns over to third parties, and he had given this info to the telephone co. Rule: The government does not conduct a search when it installs a pen register on a persons phone, since this person already provides this information to the telephone company. Note that Congress has imposed statutory limits on the use of these devices. Carnivore and computers: FBI has a device that tracks email, web browsing, and file transfer activity, arguing that a computer user has no legit expectation of privacy in the addresses he visits or addresses to which he sends mail. o Courts have generally found this is not a search because users convey this information to another person, the system operator. California v. Greenwood = Officers ask neighborhood trash collector to pick up Greenwoods garbage and give the bags to them. Court relied on Smith, the pen register case, and held that Greenwood had exposed his garbage to the public sufficiently to defeat 4A protection.

Trash:

o It is common knowledge that plastic garbage bags left on or at the side of public street are readily accessible to animals, children, scavengers, snoops, etc. o Ruling not based on abandonment of property Shredding is not sufficient, because its a failed attempt at secrecy by reason of underestimation of police resourcefulness, not invasion of constitutionally protected privacy.

Rule: The government does not conduct a search when it obtains a persons trash from his trash collector. It is common knowledge that garbage bags left on the side of a public street are readily accessible to anyone. Rule: Failed attempts at secrecy by reason of underestimation of police resourcefulness do not give rise to an invasion of constitutionally protected privacy. Public areas: Public access prong of Katz most acts conducted in public are not protected by 4A. But whats a public area? o Homeless persons cardboard box? Closed public bathroom stall? Aerial surveillance: Rule: The government does not conduct a search when an officer observes a persons activities from a public vantage point where he has a right to be, in spite of the fact that the person may have taken measures to restrict some views of his activities. (California v. Ciraolo) Mere fact that an individual has taken measures to restrict some views of his activities does not preclude an officers observations from a public vantage point where he has a right to be and which renders the activities clearly visible. (California v. Ciraolo) Dow Chemical Co v. United States = Taking of aerial photographs of an industrial plant complex from navigable airspace is not a search under the Fourth Amendment. Florida v. Riley = Court held that surveillance of a backyard from a helicopter hovering at 400 feet was not a search. Relies on Ciraolo for the proposition that public-access-therefore-police-access. o But could the public really gain access this way? o OConnor says the test should be whether the public ordinarily has access to the information sought by the police, not whether its legally possible for a member of the public to obtain it.

Rule: The government does not conduct a search when it takes aerial photographs of a property or conducts surveillance from a helicopter because any member of the public

could have legally obtained access to that information through the same methods. (Dow Chemical Co v. United States; Florida v. Riley) Note that Justice OConnor says the test should be whether the public ordinarily has access to the information sought by the police, not whether its legally possible for a member of the public to obtain it. Manipulation of Bags in Public Transit: Officers will examine by touch the outside of bags, especially soft bags. Bond v. US (2000) Does an officers physical manipulation of a bus passengers carry-on luggage violate 4As proscription against unreasonable searches? (A: Yes) Rule: An officers physical manipulation of a bus passengers carry-on luggage constitutes a search because the officers manipulation far exceeded the casual contact with the bag that other passengers on the bus could have had. (Bond v. United States) Bond argued that while other passengers had access to his bag, the officer manipulated it in a way that other passengers would not have. He says the manipulated far exceeded the casual contact he could have expected from other passengers. Katz inquiry: o Bond did exhibit an actual expectation of privacy; he took steps to hide the drugs. o Second, his privacy expectation is recognized by society, because when a person puts a bag in an overhead bin, he expects that his bag might be handled, but not that they will feel it in an exploratory manner. Scalias dissent: squeezing is the same treatment that luggage receives from strangers in a world of travel.

4. Investigation That Can Only Reveal Illegal Activity Investigation that threatens to uncover innocent, private activity can constitute a search; in contrast, there is no legitimate expectation of privacy in illegal activity. o An investigation is not a search if it can only reveal illegal activity. Rule: Investigation is not a search if it can only reveal illegal activity because there is no legitimate expectation of privacy in illegal activity. Rule: Investigation that can uncover innocent, private activity does constitutes a search. Canine sniffs: Rule: Canine sniffs of closed luggage are not a search because the sniff only discloses the presence or absence of narcotics. (United States v. Place)

If the dog alerts erroneously, that still does not expose noncontraband items.

United States v. Place It does not require the opening of luggage, does not expose noncontraband items; the sniff only discloses the presence or absence of narcotics. Despite the fact that that sniff tells authorities something about the contents of the luggage, the information obtained is limited. Less embarrassment and inconvenience for the owner. Court nonetheless held that the cocaine found in his luggage was illegally obtained, because the police did not have the dog ready when his luggage arrive; it took 90 mins to bring the dog, and his luggage was detained for that whole time it was a seizure. Dog Problems: Officers cannot open luggage immediately even after dog alerts them; the opening of the luggage IS a search. Dog Sniffs of People and Places: Dog sniffs outside of homes? Dog Sniff of a Car During a Routine Traffic Stop: Illinois v. Caballes = Defendant was legally stopped for speeding; one officer processes the ticket, the other comes with a drug-detecting dog. The officer had no reason to think defendant had drugs, but the dog alerted. Entire incident took less than 10 mins. Question: Does 4A require reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legit traffic stop? o Answer: RS is only required if defendant is subject to a search or seizure beyond that permitted by the traffic stop itself. Here, initial seizure of defendant was lawful. If it had been prolonged for more time to complete the dogsniff-drug mission, that would be unlawful, though. Shift in purpose of the traffic stop does not change the character of a stop that is lawful at its inception and otherwise executed in a reasonable manner. An erroneous alert, in and of itself, does not reveal any legitimate private information. ?Rule: If a person has been legally stopped, a police officer does not need reasonable suspicion to justify a canine sniff. (Illinois v. Caballes) Reasonable suspicion is only needed if the person is subject to search or seizure beyond that permitted by the stop itself. Chemical Testing for Drugs: United States v. Jacobsen = Court applies Place to uphold warrantless chemical field-testing of a powder.

Test merely discloses whether or not a substance is cocaine; it was thus an upor-down test that did not compromise any legitimate interest in privacy. However, field test was a seizure, because the powder sample taken is destroyed by the process. But Court found that seizure reasonable.

Rule: The government does not conduct a search when it uses a field test that can only determine whether or not a substance is cocaine. However, such a test is a seizure if the powder used during the test is destroyed by the process. (United States v. Jacobsen) Other Drug Testing: Skinner v. Railway Labor Executives Assn = Court held that drug testing of urine was a search. Unlike field-tests, these can uncover secret, innocent info, e.g., epilepsy, pregnancy, or the use of some prescription drugs. And process of collecting sample (including aural monitoring) is intrusive and embarrassing. The search thus intrudes upon expectations of privacy that society has long recognized as reasonable. Rule: Drug testing of urine is a search because these tests can reveal private, yet innocent, information, and the process of collecting the sample intrudes upon expectations of privacy that society recognizes. (Skinner v. Railway Labor Executives Assn) 5. Use of Technology to Enhance Inspection Under Katz, visual inspection is not always a search; but what if visual inspection is aided by sophisticated technological devices? Thermal Detection Devices Infrared thermal detection used to detect growing of drugs. Kyllo v. United States Question: Does the use of a thermal-imaging device aimed at private home from a public street, to detect relative amounts of heat within the home, constitute a search under 4A? o Lower court found: Produces a video-camera like image, takes only a few minutes; device emits no physically intrusive rays or beams; does not show any people or activity within the wall of the structure. Kyllo made no attempt to conceal the heat escaping his home. Court has decoupled violation of 4A rights from trespassory violation of property. New technologies expose to public view (and hence official observation) things that were previously private or hidden. Holding: Obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without

physical intrusion into a constitutionally protected area constitutes a search, at least where the technology in question is not in general public use. o Thus, this was a search. 4As protection of the home has never been tied to measurement of the quality or quantity of information obtained; all details of what goes on inside a home are intimate details. 4A draws a firm, and bright, line at the entrance to the home. Stevenss dissent: Through-the-wall versus off-the wall. o Through-the-wall = gives direct access to information in a private area o Off-the-wall = requires thought processes used to draw inference from information n the public domain o Heat waves enter the public domain if and when they leave a building. o Concerned that courts attempt does not work, because its protection dissipates as soon as the relevant technology is in general public use.

?Rule: A government conducts a search when it obtains, by sense-enhancing technology that is not in general public use, information regarding activities within a home that could not otherwise have been obtained without physical intrusion into this constitutionally protected area. (Kyllo) Notes: Home v. other buildings, such as a warehouse What about face-recognition technology combined with government databases?

Electronic Tracking Devices: Tracking Public Movements: United States v. Knotts = Officers installed a beeper inside a container of drugs before defendant picked it up for delivery. The signal became stationary at a certain location. Court considered whether officers had invaded any legitimate expectation of privacy when the tracked the containers movements. o Court says that because visual surveillance from public places along the route would have sufficed to reveal all of these facts to the police, nothing in the 4A prohibits the police from augmenting the sensory faculties with the enhancement that this technology gave them. o So beeper tracking is NOT a search. o However, dragnet type practices are a bit different. Rule: The government does not conduct a search when it obtains information through an electronic tracking device, as long as the government could have obtained that information through visual surveillance from public places. More Beeper Issues:

United States v. Karo = Govt obtained court order authorizing installation and monitoring of a beeper in cans of chemicals for drugs, but order was later found invalid. Court concluded that no authorization was necessary to place the beeper in can because the can belonged to the DEA at the time, and defendants have no expectation of privacy in it. Court said 4A not implicated by the fact that Karo received a can containing an electronic device; the mere transfer invade no privacy interest b/c it didnt convey any information at all, even though it certainly created a potential for an invasion of privacy. But potential invasions are not searches. Transfer of can was not a seizure either. o Any impairment of privacy interests that might have occurred was caused by the beepers actual monitoring, not its placement.

Rule: The government does not conduct a search simply by giving a person a container that has an electronic tracking device attached because the transfer itself does not invade any privacy interest; it simply creates the potential for an invasion of privacy. (United States v. Karo) Beepers in the House: United States v. Karo = But Court concluded that the beepers monitoring in a private residencea location not open to visual surveillancewas a smallerscale search. o It DID reveal something about the interior of the Karos homethat it had the canwhich could not have been visually verified. o Dont want indiscriminate monitoring of property that has been withdrawn from public view, so cant be warrantless. Stevenss dissent: Agents asserted dominion over can of chemicals, so it was a seizure; private citizens are entitled to assume that their possessions are not infected with concealed electronic devices. Rule: The government does conduct a search when an electronic tracking device reveals information about the interior of a private residence because a homes interior is not open to visual surveillance and could not have been verified by officers from a public place. (United States v. Karo) Informants, Beepers, and Stolen Property: OConnor concurs, writing that if a home owner allowed a third person to enter the home with property that contains a beeper, the owner might not have a valid complaint. Tracking with GPS and Related Devices: Concerns focus on prospect that police can track movements of the entire population without any regulation. Other Sensory Enhancement Devices:

Texas v. Brown = The use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no 4A protection. Dow Chemical Co. v. US = Court holds that the govts $22,000 camera that allows intense magnification do not rise to the level of highly sophisticated surveillance equipment not generally available to the public.

Rule: The governments use of artificial means to illuminate a darkened area does not constitute a search. (Texas v. Brown) Rule: A government camera that costs $22,000 and allows intense magnification does not rise to the level of highly sophisticated surveillance equipment not generally available to the public. (Dow Chemical Co. v. U.S.) 6. Investigative Activity Conducted by Private Citizens Private Activity: Search and seizure conducted by private citizen is not within 4A meaning. Thus, private papers stolen from a desk forced open could be presented by a prosecutor because the govt itself hadnt done the search. Rule: If the search or seizure was performed by a private individual, there is nothing to stop the government from using the fruits of that search. However, if that person was acting as an agent for the government, the 4A does apply. Mixed Public and Private Action: If a private individual is acting under the circumstances as an agent for the government, 4A does apply. Govt. official cant avoid Constitution by enlisting private individuals to do what they cannot. o 4A is applicable to drug-testing regulations promulgated by govt on private companies, even if the government does not actually compel that testing. (Skinner v. Rwy Labor Exec Assn) o Court found clear indices of the govt.s encouragement, endorsement, and participation. Rule: Government regulations that encourage private companies to perform a search or seizure on employees may implicate the 4A, even if they do not compel this activity, if there are clear indices of the governments encouragement, endorsement, and participation. (Skinner v. Rwy Labor Exec Assn) Govt Investigative Activity Subsequent to Private and Other Legal Searches: Limits Imposed by the Initial Search: Walters v. US = Can FBI agents who receive a package of films from their recipient (to whom the package was misdelivered by a private carrier) watch the films without a warrant? o Recipient had opened the package, but not viewed the films.

Court holds that unauthorized viewing of film was an unreasonable invasion of privacy. So while the officers could possess the package, they could not examine its contents. o A partial invasion of privacy cannot automatically justify a total invasion. o But what the FBI observed in plain view (like, by looking at the tapes against the light) was proper.

Rule: If a private individual has already performed a search, then hands over the searched items to the government, the government conducts a search under the 4A only if it conducts a search that goes beyond the scope of the intial examination by the private individual. (Walters v. United States) Reopening Permitted: United States v. Jacobsen = FedEx opens a destroyed packaged and finds bags containing white powder. Hand them over to DEA, which reopens them and performs a field test for cocaine. Court reasons that because FedExs actions were (?not?) covered by 4A, the question is: To what extent did the government exceed the bounds of the private search? o Field test did not compromise legit privacy interest b/c its contraband. o Whites concurrence brings up his concern that the decision allows police to break into a locked car, suitcase, or even a house if a private person previously did so and reported what he found to the police. Jacobsen thus establishes that if an initial intrusion (at least into a container) is not covered by 4A, a later intrusion by officers, to the same extent, is also free from 4A constraints. Rule: If an initial intrusionat least into a containeris not covered by 4A, a later intrusion by officers, to the same extent, is also free from 4A constraints. (US v. Jacobsen) Note that this may or may not apply to cars, homes, etc. Controlled Deliveries: Illinois v. Andreas = Govt agents conduct legal customs search and find drugs in it. They reseal it and follow it to its destination. When guy leaves his place, they search the box again. Court reasons that the simple act of resealing the container does not operate to revive or restore lawfully invaded privacy rights. 4A is applicable to a subsequent reopening only if there is a substantial likelihood that the contents of the container have been changed during the gap in surveillance. Rule: The government does not conduct a search when it subsequently reopens a container it has already legally opened, unless there is a substantial likelihood that the contents of the container have been changed during the gap in surveillance.

The simple act of resealing the container does not operate to revive or restore lawfully invaded privacy rights.

7. Foreign Officials: Evidence obtained by foreign officials is generally admissible regardless of whether it complies with 4A. Two limited exceptions: o If the circumstances of the foreign search/seizure is so extreme that it shocks the judicial conscience o When US agents participation in the investigation is so substantial that the action is a joint venture between US and foreign officials Rule: Evidence obtained by foreign officials is admissible unless: o The circumstances of the foreign search/seizure are so extreme that they shock the judicial conscience; or o The participation of US in the investigation is so substantial that the action is a joint venture between US and foreign officials. 8. Jails, Prison Cells, and Convicts Hudson v. Palmer = Court held that a prisoner has no constitutionally protected expectation of privacy in his prison cell or in papers or property in his cell. 4A thus not implicated by searches and seizures in those contexts. Rule: The search or seizure of a prison cell or a prisoners belongings in his cell does not implicate the 4A because a prisoner has no constitutionally protected expectation of privacy in that space/those items. (Hudson v. Palmer)

9. Public Schools and Public Employees New Jersey v. TLO = Court rejects argument that public school students have no legit expectation of privacy in their possessions. Students have legit, noncontraband items; theyre not prisoners. OConnor v. Ortega = Court rejects idea that govt employees never have an expectation of privacy in their place of work. o Public employers intrusions upon protected privacy interests of govt employees for noninvestigatory, work-related purposes, as well as work-relate misconduct, should be judge by the standard of reasonableness. Rule: 10. Recap on limitations wrought by Katz At time of Katz, general agreement that 4A applies to traditional entries and inspections, and that Katz is for activity at the margins o However, courts have used Katz to limit protection in those original, traditional investigations. III. Fourth Amendment ProtectionThe Warrant Clause A Theory of the Warrant Clause (84-89): Searches and seizures conducted without a warrant are presumed to be unreasonable, because they are conduct outside the judicial process, without prior approval by judge or magistrate. Reason for the Warrant Requirement: Johnson v. United States Question: Was it lawful, without a warrant of any kind, to arrest petitioner and search her living quarters? Officer received information that people were smoking opium; officers recognized the smell when they went to the hotel; they followed the smell to Room 1. Officers knocked and announced and were admitted. At the time entry was demanded, the officers had evidence that a magistrate might have found to be probably cause for issuing a search warrant. o If the presence of odors is testified to and the affiant is qualified to know the odor (and its a sufficiently distinctive odor), that can be very persuasive. o The point of 4A is not that it denies law enforcement the support of usual inferences which reasonable men could draw from evidence; its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrates determination would justify a search without a

warrant reduces 4A to a nullity, and leaves the peoples homes secure only in the discretion of officers. o When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officernot a policeman. There are, of course, exceptional circumstances in which the magistrates warrant can be dispensed with. This is not such a case; no reason is offered other than inconvenience and some slight delay: No suspect was fleeing or likely to take flight; The search was of permanent premises, not a movable vehicle; No evidence or contraband was threatened with removal or destruction. Note: Johnson is a victory for those who want police to have to secure warrants; there was almost certainly enough evidence known to the police to justify a warrant from a magistrate, but because that determination wasnt made by a magistrate, it was constitutionally unreasonable.

Function of the Warrant Requirement: Indiscriminate searches and seizures are bad for two reasons: o Expose people and possessions to interferences by govt when there is no good reason to do so; every citizen is entitled to security of person and property unless an adequate justification is shown. o Indiscriminate searches and seizures conducted at the discretion of executive officials, who can act despotically and capriciously. Concerned with arbitrariness. For a S&S subject to the warrant requirement, PC is the threshold of proof that must be satisfied before the power to search and seize is legitimated. Government must demonstrate a factually based interest in these things before using its power to disturb them. PC is to be shown by persons willing to swear or affirm the truth of their statements, and thus be held accountable for what they say. Applicant for a warrant commits to public record the information that is known beforehand, so there is no confusion between ex-post and ex-ante positions. o Otherwise, officers could work backwards from the search. Specificity requirement: Govt can only interfere with persons, places, or things that it has shown a valid interest in. o Written record decreases the danger that after the search is completely, police will claim that whatever is found is exactly what they sought. o Specification can also help determine reasonableness or excessiveness.

A showing of PC does not mean that any S&S authorized by a warrant is valid; it means that any S&S directed by warrant at the people, places, or things to which PC specifically relates satisfies the warrant clause.

Note: A showing of PC does not mean that any search or seizure relating to the suspected crime is valid; it means that any search or seizure directed by warrant at the people, places, or things to which PC specifically relates is valid. Requirement of magistrate helps ensure that there actually is PC, but also gives an opportunity for the warrant to be deniedeven if there is PC. Magistrate can say it would be unreasonable under the circumstances (usually a scope argument). Magistrate can impose limits on those searches, thus preventing excessive (as opposed to reasonable) govt intrusions. Another function of the warrant requirement is to reduce the perception of unlawful police conduct, since it assures the individual of the officers lawful authority, his need to search, and the limits of that power to search. Another function: remind police of their obligation to comply with legal constraints placed on them. IV. Fourth Amendment ProtectionProbable Cause A. What Is a Fair Probability? (113-128) Fair probability problem when it is unknown whether a crime has been or is being committed. E.g., a person carrying a television down a street in a shopping cart at 2 am. United States v. Prandy-Binett (D.C. Cir.) Officers intercept suspicious figure at Union Station, and when they stop him, they see in his bag a rectangular block wrapped in duct tape; it turns out to be cocaine. Court concludes that, based on the totality of the circumstances, there was a fair probability that the block contained drugsand thus upheld the conviction on which the search and seizure were based. o Fair probability = somewhere between less than evidence which would justify conviction and more than bare suspicion o Concern with conditional probabilities (basically, probability of this weird thing combined with that weird thing) Up until the sighting of the duct tape package, the conditional probability was much too low to satisfy the 4A. o But PC is evaluated not only from the perspective of a prudent man, but also from the particular viewpoint of the officer involved (and his experience).

Court rejects the argument that PC was lacking because officers could not be sure that Prandy-Binett was carrying cocaine as opposed to, say, heroin. o Officers do not have to be aware of the specific crime an individual is likely committing; it is enough that they have PC to believe the defendant has committed one or the other of several offenses, even if they cannot be sure which one.

Rule: PC is evaluated not only from the perspective of a prudent man, but also from the viewpoint and in light of the experience of the officer involved. (Prandy-Binett) Rule: The officer does not have to be aware of the specific crime an individual is likely committing, as long as he has PC to believe the defendant has committed one or the other of several offenses, even if they cannot be sure which one. (Prandy-Binett) Child pornography: Most Circuits have held that PC can be found even without direct evidence that the defendant ever downloaded or distributed illegal images (usually based on membership in a website that provides access). Probable Cause to Arrest: PC requirement applies to arrests as well as searches. o PC to search: is there a fair probability that the area or object searched contains evidence of a crime? o PC to arrest: is there a fair probability to believe that the person arrested has committed a crime? Rule: Probable cause to search means that there is a fair probability that the area or object to be searched contains evidence of a crime. Rule: Probable cause to arrest means that there is a fair probability to believe that the person to be arrested has committed a crime. PC to arrest problems when police know that a crime has been committed, but theyre not sure that a suspect is the perpetrator. United States v. Valez (2d Cir.) = Undercover officer does a drug deal, and tells officers that one of the sellers is a Hispanic man in his 20s, wearing a black leather jacket, etc. The seller in the jacket walks by, and the officers go to make the arrest. They lose the guy, but then see a man coming out of a restaurant who matches the description. The guy they arrest turns out to be the wrong guy, but when brought to the station, they find packets of cocaine on him. Court held that the description of the perpetrator was not overly general, and that the officers had acted properly. The description was sufficiently detailed to provide the officer with PC to believe that Valez (the guy they arrested)

was the seller, because he matched every detail of the description, and was within the immediate vicinity of the sale less than 10 minutes after it. o No purpose would thus be served by suppressing the evidence they found on him, which came to the polices attention as a result of their well intentioned but mistaken actions. US v. Kithcart (3d Cir.) = Two robberies, and perps are described as two black males in a black sports car. Officer pulls over a black car with one black man in it, but then sees there are actually two. Court held that the officer did not have PC to arrest. o The fact that he was black and the perps were black is clearly insufficient, and the description of the cars did not match. Nor was PC established by location and time. Mistaken arrests: The question for PC is not accuracy, but fair probability. Probabilities with multiple suspects: Maryland v. Pringle = o Officers find drug in a car with three men. Officers question all three about ownership, but no one says who owns the drugs or money. Pringle gives an oral and written confession saying the coke belongs him; says the other occupants knew nothing about it. Pringle moves to suppress the confession as the fruit of an illegal arrest. o Officers clearly have probable cause to believe a felony had been committed. The question is whether they had PC to believe it was Pringle who did it. PC standard is a practical, nontechnical concept that deals with considerations of everyday life. PC cant be reduced to percentages because it deals with probabilities and the totality of the circumstances. o But: There was $800 in rolled-up cash; they were driving at 3 am; and there were bags of cocaine accessible to all three men. From these facts, it was an entirely reasonable inference that any or all three of the occupants had knowledge and control re: the cocaine. This is not guilt-by-association. They were in a relatively small automobile, and car passengers are often engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or evidence of their wrongdoing. Quantity of drugs and cash indicated the likelihood of drug dealing. Rule: PC is based on the totality of the circumstances, and the probability of all a number of conditions occurring simultaneously in the context of a crime being committed.

Probable cause for an arrest different from the charge on which the defendant was arrested: Devenpeck v. Alford (2004) Question: Whether an arrest is lawful under the 4A when the criminal offense for which there is PC to arrest is not closely related to the offense stated by the arresting officer at the time of the offense. Officer suspected that Alford was impersonating a police officer. But he was arrested for recording his conversations with the officers. But the guy pulled out a copy of a state court-of-appeals decision which permitted him to record roadside conversations with police officers. The guy was arrested anyway. Alford brings a 1983 suit for unlawful arrest and imprisonment on the grounds that the cops did not have PC at the time they arrested him, since he had established that the taping was not a crime. Reasoning: o The arresting officers state of mind (except for the facts he knows) is irrelevant to the existence of PC. His subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. Any rule holding the offense establishing PC must be closely related to the offense identified by the arresting officer is inconsistent with this notion. Such rules make the lawfulness of an arrest turn on the motivation of the arresting officer. This would means that the constitutionality of an arrest would vary depending on what the officer identifies as the crime, etc., even if the facts and circumstances are exactly the same. o Those whom the facts known to the arresting officer give PC to arrest are lawfully arrested. o If the Court validated a closely related rule, officers would simply stop providing reasons for their arrests. Rule: PC is an objective standard; thus, the arresting officers state of mind is irrelevant to the existence of PC. (Devenpeck v. Alford) Rule: An officers subjective reason for making the arrest does not have to be the criminal offense as to which the known facts provided probable cause. (Devenpeck v. Alford) Collective Knowledge: In Whiteley v. Warden, Court declared that police officers who are helping others execute arrest warrants are entitled to assume that the officers offered the magistrate the information requisite to support PC.

o In other words, officer B can make an arrest pursuant to orders from officer A if officer A had probably cause, even if B isnt familiar with the facts supporting PC. o Likewise with searches, the officer who actually conducts the search need not have personal knowledge of the facts supporting PC; all that is needed is collective knowledge of the police dept. Rule: Police officers who are helping others execute arrest warrants are entitled to assume that the officers offered the magistrate the information requisite to support PC. (Whitely v. Warden) - The idea is that the police department has collective knowledge, so as long as the officer who applied for the warrant had probable cause, it does not matter whether the arresting officer knows the facts on which the warrant is based. Staleness of Information Problem officers information can be outdated; if officer receives a tip about drugs in Jan, there is no fair probability that the same oz of marijuana is still in the house six months later. United States v. Harris (11th Cir.) = Court will make a case-by-case determination in which it will consider: o the maturity of the information, o the nature of the suspected crime (discrete or ongoing conspiracy), o habits of the accused, o character of the items sought, and o nature and function of the premises to be search. Rule: The information on which PC is based can become stale. Courts will make a case-by-case determination in which they will consider: o the maturity of the information, o the nature of the suspected crime (discrete or ongoing conspiracy), o habits of the accused, o character of the items sought, and o nature and function of the premises to be search. (US v. Harris) First Amendment Concerns: An application for a warrant authorizing the seizure of materials presumptively protected by the First Amendment should be evaluated under the same standard of PC used to review warrants generally. (New York v. PJ Video (1986)) B. Probable Cause Based on Hearsay Information 1. Two Pronged Test (90-97) Rule: 4A requires a showing of PC as justification for a search warrant.

4A mandates a showing of PC as justification for a search warrant. Spinelli v. US The affidavit at issue included information about Spinellis whereabouts after the FBI tracked him, that he had a false phone number, and information from a confidential but reliable informant. o The warrant pretty much hinged on the informants tip, since the first two items showed only innocent-seeming activity. In Aguilar v. Texas, the Court held that an affidavit based on hearsay information was inadequate because: o The application for the warrant failed to set forth the underlying circumstances necessary to enable the magistrate to independently judge the validity of the informants conclusion; and o The affiant-officers did not support their claim that their informant was credible or reliable. The tip passes neither of the prongs of the Aguilar test: theres no information as to why the informant was reliable, and we have no information about how the informant received this information. o In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accuseds criminal activity in sufficient detail that the magistrate can know hes relying on something more than a casual rumor. The informants tip, even when corroborated to the extent indicated, was not sufficient to provide the basis for a finding of PC. Whites concurrence: o What is missing here is a statement of the basis for the affiants believing the facts contained in the affidavitthe good cause. If the officer has seen whats in the affidavit, that affidavit is good. If the officer has observed or perceived facts from which whats in the affidavit can be inferred, the affidavit is not sufficient without a statement of what those perceived facts are. If the office has obtained that information from someone else, where that information is hearsay, no warrant should issue absent good cause for crediting that hearsay. o If the affidavit rests on hearsayan informants reportwhat is necessary under Aguilar is one of two things. The informant must declare either: That he has himself seen or perceived the fact or facts asserted; or That his information is hearsay, but there is good reason for believing itperhaps one of the usual grounds for crediting hearsay. o There are also limited special circumstances in which an honest informants report, if sufficiently detailed, will in effect verify itself.

o Unquestionably, things like verification of arrival time, dress, etc, reinforces the honesty of the informant (that he didnt make up the story). When an informant is right about some things, he is more probably right about other factsusually the critical, unverified facts. Applying Spinelli: Rule: A police officer is presumed to be honest when making an affidavit; however, the source of the officers information may be questioned. (Spinelli v. US) Rule: If the officer avers that he has firsthand knowledge of the facts used to demonstrate probable cause, the only question is whether the sworn facts are sufficient to meet the threshold for PC. (Spinelli v. US) Rule: If the officer is relying on someone else for part or all of the information, then is it necessary to make three additional determinations: Who is the source of the information, and is the source reliable? What are the bases and details of the sources knowledge? Assuming reliability, are the facts, either standing alone or taken together with other facts in the affidavit, sufficient to satisfy PC? (Spinelli v. US) Rule: If the source is not known to the police to be reliable, the police may be able to demonstrate reliability by corroborating the details provided by the informant; however, substantial amount of corroboration is required. (Spinelli v. US) Rule: If the informants basis of information is unclear, it may be sufficient that the information is so detailed that it could only have come from the informants personal observation. (Spinelli v. US) Rule: No limitation where a crime victim or eyewitness reports an alleged crime immediately after he or she says it took place. (Spinelli v. US) Note: The concern driving Spinelli is the reliability of paid and anonymous informants. 2. Totality of the Circumstances Test (97-113) Illinois v. Gates Issue: Magistrate issued a search warrant on the basis of a partially corroborated anonymous informants tip. o Application for the warrant discussed a very detailed tip, which was corroborated somewhat by the officers. Letter predicted husbands flight, travel plans, etc. Reasoning:

o The letter on its own would not have been sufficient for a warrant, since it provides virtually nothing from which a magistrate could conclude that its author was reliable or honest, or of the basis of the informants information. o Although the informants veracity, reliability and basis of knowledge are highly relevant, these elements are not entirely separate and independent requirements to be rigidly exacted in every case. They are simply useful to illustrate the practical question whether there is probably cause to believe that contraband or evidence is located in a particular place. A totality of the circumstances is preferable. PC is a fluid concept. Veracity/reliability and basis of knowledge do not always both need to be present; a deficiency in one can be compensated by a strong showing as to the other. Court recognizes that affidavits are drafted by nonlawyers in the midst and haste of a criminal investigation. Concerned that police might end up resorting to warrantless searches in the hope that it will fall under some exception, rather than seeking the warrant. We dont want anonymous tips to have greatly diminished value in police work, and ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations. Officials actions cannot be a mere ratification of the bare conclusions of others. Innocent behavior will frequently provide the basis for a showing of PC; to require otherwise would be to sub silentio impose a drastically more rigorous definition of PC than the security of citizens demands. The anonymous letter contained a range of details beyond easily obtained facts, including future actions of third parties not easily predicted.

Rule: Court looks to the veracity and reliability of the source, as well as the basis of the sources knowledge, to determine the existence of PC. Note that both do not always both need to be present; a deficiency in one can be compensated by a strong showing as to the other. (Illinois v. Gates) Note on Gates: Court abandons rigid two-pronged test and moves toward a totality of the circumstances test. Strong Prong/Weak Prong Strong showing on one justifies weaker on other. Corroboration after Gates More permissive view of the nature and extent of the corroboration necessary to shore up a defective tip. Insufficient corroboration: Few cases after Gates in which police corroboration was insufficient. Gates Test Applied: Massachusetts v. Upton =

Court reversed state court for invalidating a warrant when it failed to give significance to each relevant piece of information and also for failing to give appropriate deference to the magistrate (standard of appellate review is finding of substantial basis, not de novo probable cause determination). While no piece of evidence was conclusive, the pieces fit together, and there was a fair probability.

Citizen Informant: Courts distinguish police informants and anonymous informants from ordinary citizens who identify themselves when reporting crime. Such informants are considered more reliable because they are presumed to be motivated by good motives, not a desire to harass or frame someone or make money. Rule: Citizen informants are considered more reliable because they are presumed to be motivated by good motives, not a desire to harass or frame someone or make money. Accomplices: Confession of a co-participant is itself sufficient to establish PC; no corroboration is required. Rule: Confession of a co-participant is itself sufficient to establish PC; no corroboration is required. Note: Gates deals with quality, not quantity. Fair probability is the question of quantity. Quantity of Information required for PC: Gates deals with quality, not quantity. Fair probability is the question of quantity. V. Fourth Amendment Protection: The Warrant Requirement A. Problems in Obtaining and Executing a Warrant 1. Mere Evidence and Search of Nonsuspects Premises (129-135) Things That Can Be Seized: It used to be on fruits and instrumentalities of a crime, and mere evidence could not be seized. But Court rejected the rule against mere evidence of the crime in Warden v. Hayden. Warden v. Hayden = Clothes of the defendant were seized during a search of his home. Nothing in the language of the 4A supports a distinction between mere evidence and fruits and instrumentalities. Privacy is no more disturbed by a

search directed to purely evidentiary object than to an instrumentality, fruit, etc. However, there still must be some nexus between the item to be seized and criminal behavior.

Rule: The government can seize mere evidence in addition to the fruits and instrumentalities of a crime, but there still must be some nexus between the item to be seized and criminal behavior. (Warden v. Hayden) Note: Search power was dramatically expanded by the abrogation of the mere evidence rule, because an innocent third partys home or office could be the legitimate object of a search. Evidence can be spread fair and wide.

PC as to Location of Evidence: In some cases, govt will have PC to believe a suspect has committed a crime and is in control of certain evidence, but arent sure where that evidence is located. Zurcher v. Stanford Daily = Court stated that the critical element is reasonable cause to believe that the specific things to be searched for and seized are located on the property to which entry is ought. o Will depend on: Type of crime; Nature of items sought; Suspects opportunity for concealment; and Normal inferences about where a criminal might hide evidence of a crime. Thus, PC does not automatically exist to search a persons home simply because theyve been involved in a crime. Need some information linking the criminal activity to the defendants residence. Rule: Government must have PC as to location of evidence, that is, reasonable cause to believe that specific things to be searched for and seized are located on the property to which entry is sought. This determination will depend on: - Nature of items sought; - Suspects opportunity for concealment; and - Normal inferences about where a criminal might hide evidence of a crime. (Zurcher v. Stanford Daily) Rule: The government does not automatically have PC to search a persons home simply because the person has been involved in a crime; they must have some information linking the criminal activity to the persons residence. Rule: The government can have PC to search a third partys premises even though that party is not suspected of a crime. (Zurcher v. Stanford Daily)

Searches of Non-Suspects Premises: Sometimes, police have PC to search a third partys premises even though that party is not suspected of a crime. Zurcher v. Stanford Daily. o Justice White: Theres nothing special about the search of a third partys premises. The question in any case is whether there is PC to believe evidence of the crime will be found in the place to be searched. o Court is worried that 3d party isnt actually innocent; might destroy the evidence, or give the defendant access to that property. Subpoena might not come fast enough. o Dissent: Countless law-abiding citizens will be subject to these seizures and searches, which may reveal private information about them unrelated to the crime. 2. Particularity Requirements (135-145) Warrant clause requires particularized description of the place to be searched. This is designed to protect against abuses of a general warrant, i.e., a warrant that gives an officer the power to search wherever he wants. Function of the Particularity Requirement: If the executing officer has no knowledge of the underlying facts (i.e., no idea where he should be searching), a particular description operates as a necessary control on his discretion. Even if he knows where he wants to search, the particular description forces him to establish a specific record of PC as to that location before the actual search. Particularity requirement prevents the officer from using the warrant as a blank check to expand a search of a location by relying on an overly general description. Reasonable Particularity: Technical precision is not required in all cases. The degree of particularity required depends on the nature of the place to be searched and on the information than an officer could reasonably obtain about that location. A single warrant cannot describe an entire building when cause is shown for searching only one apartment. Maryland v. Garrison = Warrant says for third floor apartment, but it turns out there are two of those. Court holds that warrant and their search was sufficient, since it should be judged in the light of the information available to them at the time. Warrant was thus valid when issued. When there is probable cause to search each unit of a dwelling with multiple units, a warrant describing the entire dwelling is sufficient. Rule: Warrant clause requires particularized description of the place to be searched. This is designed to protect against abuses of a general warrant, i.e., a warrant that gives an officer the power to search wherever he wants.

Rule: The validity of a warrant should be judged in light of the information available to the officers at the time they applied for it. (Maryland v. Garrison) The Wrong Address: If the address is wrong, but the description is sufficiently particular to describe the actual residence, the warrant is valid because it makes it unlikely under the circumstances that another premise might be mistakenly searched. In a case where warrant was mistaken, and person who lived there pointed them to a different location, court held that the mistaken address rendered the warrant invalid, and the information given by the neighbor did not correct the defect. Warrant did not describe the homes physical attributes. o The procedure here thus risked a general search. Officers should have attempted to call the detective who directed them there. Rule: If a warrant gives the wrong address, but the description is sufficiently particular to describe the actual residence, the warrant is valid because it makes it unlikely under the circumstances that another premise might be mistakenly searched. Rule: If a warrant gives the wrong address but no description, the warrant is invalid since it risks a general search. The Breadth of the Place To Be Searched: A different particularity question is whether the warrant sufficiently describes particular places in the general area to be searched. Difficult problem scope of the search of the property of persons who happen to be on the premises that are being searched. Most courts have held that any persons property is subject to search so long as the property could physically contain the items described in the warrant. Rule: When a warrant provides for the search of a premises, most courts have held that the government can search any persons property on that premise, as long as the property could physically contain the items described in the warrant. Particularity for Arrest Warrants: An arrest warrant must describe the person to be seized w/ sufficient particularity. Describing the Things To Be Seized: Warrant must particularly describe the things that officers can look for and seize. Andresen v. Maryland = Officers got warrant to search for specified documents pertaining to the sale of a lot in a fraud case. Andresen argued that the warrant was so broad that it was a general warrant. o He contends that they were rendered fatally general by the addition of the phrase with other fruits, instrumentalities and evidence of crime at this unknown.

o But this wasnt a separate sentence; read in context, its clear that the phrase described the crime in question, not all possible crimes. They could not search for evidence of other crimes. o List of documents was OK too because real estate fraud is a complex crime that requires lots of bits of evidence to be pieced together like a jigsaw puzzle. o In searches for papers, it is certain that some innocuous documents will be examined. Rule: A warrant must particularly describe the things that officers can look for and seize. (Andresen v. Maryland) Searches of Computers: Even a requirement of particularity will not shield most information stored in a computer from inspection when police have PC to believe that incriminating evidence is somewhere on it. o Police can open folders that have names that dont suggest anything suspicious (i.e., grocery list). Computer files are easy to disguise or rename, so we cant limit the warrant to specific search protocol. Reasonable Particularity: Ultimately, particularity boils down to reasonableness. A search warrant must describe items to be seized with reasonable particularity sufficient to prevent a general, exploratory rummaging in a persons belongings. Severability: Even if a clause in a warrant is overbroad, the defect will not usually taint the whole search. Evidence seized pursuant to appropriately particular descriptions will not be excluded. 3. Reasonableness, Details, Anticipatory Warrants, and Sneak and Peek Warrants (146-149) Reasonableness and Warrants: Magistrates cannot issue warrants that violate the reasonableness portion of 4A. Winston v. Lee = Court held that a court order (tantamount to a warrant) forcing the defendant to undergo surgery to help officers get more evidence was unreasonable. Rule: Warrants issued by magistrates are still subject to the reasonableness clause of 4A. (Winston v. Lee) Details of the Warrant:

Warrants must be executed within two weeks of their issuance; during the daytime (after 6 am, before 10 pm). Theres an exception for this for narcotics, which require no special showing for a nighttime search.

Anticipatory Warrants: Anticipatory warrants are warrants conditioned upon future events that, if fulfilled, would create PC. Court held in United States v. Grubbs that such warrants are not invalid simply because theyre contingent on a future event. o Requires an affidavit showing PC that at some future time certain evidence of crime will be located at a specified place. o Govt cannot execute warrant before triggering condition occurs. o PC looks to whether evidence will be found when the search is conducted not when the warrant is issued. o For an anticipatory warrant to comply with 4A, two prerequisites of probability must be met: It must be true that if the trigger condition occurs there is a fair probability that evidence will be found; and That there is PC to believe that the triggering condition will occur. Rule: An anticipatory warrantthat is, a warrant conditioned upon a future event that, if fulfilled, will create PCis valid as long as: It is true that if the trigger condition occurs, there will be a fair probability that evidence will be found; and There is PC to believe that the triggering condition will occur. (US v. Grubbs) Rule: An anticipatory warrant cannot be executed until the triggering condition occurs. (US v. Grubbs) Sneak and Peek Warrants: Crim. Pro Rules require officer executive a warrant to give a copy to the person whose premises are searched. But there is a statute that allows secret searches in some cases. o These warrants permit federal agents to enter a persons home or office covertly if the govt can show reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result, such as endangering the life or safety of an individual, flight, destruction of evidence, intimidation of potential witnesses, or anything else that would jeopardize an investigation. o Govt can also seize stuff without notice if it can show a reasonable necessity. Rule: The government can obtain a sneak-and-peek warrantthat is, a warrant that does not require notice to the person whose premises are searchedas long as the government

can show that there is reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result, such as: - Endangering the life or safety of an individual; - Flight; - Destruction of evidence; - Intimidation of potential witnesses; or - Anything else that would jeopardize the investigation. 4. Problems of Execution a. Notice of Purpose and Authority (150-158) Most jurisdictions require that officers executing a warrant knock and announce their presence before attempting to enter a dwelling. If the officer is refused admittance, he can break shit. Purpose: protects citizens and law enforcement officials from violence; protects individual property rights; protects against needless destruction of private property. Constitutional Basis of the Knock and Announce Requirement: Wilson v. Arkansas = Court held that, given the longstanding common law endorsement of the practice of announcement, the Framers clearly thought that the method of an officers entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search or seizure. o However, its not a rigid requirement; just one component of the 4A reasonableness inquiry. o Countervailing circumstances include hot pursuit, risk of destruction of evidence, and safety of officers. Rule: An officers method of entryspecifically, whether he knocked and announced their presenceis among the factors to be considered in assessing the reasonableness of a search or seizure. (Wilson v. Arkansas) o However, its not a rigid requirement; just one component of the 4A reasonableness inquiry. o Countervailing circumstances include hot pursuit, risk of destruction of evidence, and safety of officers. Refused admittance: An officer can break open premises if he has announced his authority and purpose and is refused admittance. Refusal can be implied from silence, but it has to be of a reasonable length. Citizens get more time when the warrant in executed at night. Rule: An officer can break into the premises if he has announced his authority and purpose and is refused admittance. Refusal can be implied from silence, but the silence has to be of a reasonable length.

Exceptions to the Notice Rule: No Breaking: If the door is already open, police dont need to announce their presence. If the officer can trick the homeowner into opening the door, no violating of knock and announce either. Rule: If the door is already open, police do not need to announce their presence. Rule: If the officer can convinceor even trickthe homeowner into allowing him to enter, this does not represent a violation of knock-and-announce requirement. Emergency Circumstances: Richards v. Wisconsin: Exigent circumstances exception to the knock and announce requirement. Police had request a warrant that would have given advance authorization for a no-knock entry, but magistrate denied this request. Court rejected a per se exigent circumstances exception for felony drug cases. Court didnt want to create an exception based on the culture surrounding a general category of criminal behavior, because it risks considerable overgeneralization, and it would be a slippery slope toward such rules for other crimes. Holding: The fact that felony drug investigations may frequently present circumstances warranting a no-knock entry cannot remove from the neutral scrutiny of a reviewing court the reasonableness of a decision not announce in a particular case. Standard of exigency sufficient to justify a no-knock entry = Police must have reasonable suspicion that knocking and announcing their presence would inhibit effective investigation. o Officers do NOT need PC to believe that evidence will be destroyed. Rule: If police have a reasonable suspicion that knocking and announcing their presence would inhibit effective investigation, they meet the exigent-circumstances exception to the knock-and-announce requirement. (Richards v. Wisconsin) Note: Officers do not need PC to believe that evidence will be destroyed in order to meet the exigent-circumstances exception to the knock-and-announce requirement.

No-Knock Warrants: A magistrate can issue a no-knock warrant if the officers make an advance showing of conditions at the premises that would excuse this requirement. o Warrant applicant must give reasonable grounds to expect futility or to suspect that one or another exigency already exists or will arise instantly upon knocking. No requirement that an officer obtain a no-knock warrant even if this is the case; but when police get one prior to the search, burden shifts to defendant to show that entry method was not justified. No-Knock Entries and Destruction of Property: In United States v. Ramirez, defendant argued that a heightened degree of exigency should be required if police are going to destroy property during a no-knock warrant entry. Court rejected this argument. Rule: A heightened degree of exigency is not required when police destroy property during a no-knock warrant entry. (United States v. Ramirez) Exigent Circumstances After Knocking: In United States v. Banks, Court considered how to go about applying the standard of reasonableness to the length of time police with a warrant must waiting before entering without permission after announcement (when defendant was in the shower). o Court held it comes down to whether was reasonable to suspect an imminent loss of evidence (or whatever the exigency might be in another case) after the 15-20 seconds the officers waited. o What matters isnt the time it takes for the police to assume hes refusing to let them in, but the time required for the resident to destroy the evidence. Rule: The question of how long police with a warrant must wait after announcement before entering without permission comes down to whether it was reasonable to suspect an imminent loss of evidence in that time period. Does Violation of Announcement Requirement Justify Exclusion of Evidence? In Hudson v. Michigan, Court held that a violation of announcement req does not justify exclusion of evidence found in a subsequent search. o Interests protected by K&A do not include the shielding of potential evidence; the relevant interests are safety and ability to collect oneself before answering the door. o Since the interests that were violated have nothing to do with seizure of evidence, the exclusionary rule is inapplicable, and is unnecessary to deter other violations (thats what 1983 is for).

Rule: A violation of announcement requirement does not justify exclusion of evidence found in the subsequent search. (Hudson v. Michigan) b. Timing, Intensity and Duration of the Search (158-63) Officers can only look in places where the objects specified might be found. A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Rule: Officers can only look in places where the objects specified might be found. Destruction and Excessiveness: Some courts have found it reasonable to remove a piece of drywall when the officers had information that indicated it would be in a hiding place and the drywall was unfinished. Breaking locks is obviously OK. Use of Distraction and Intimidation Devices: Use of flash-bang to distract and disorient any occupants in the vicinity of the entry: o Courts have said reasonable when defendant has history of violent criminal activity. o Courts have rejected the use of the exclusionary rule as a remedy: the argument that occupants could have destroyed the drugs, if only they had more time and full possession of their faculties, is not a good reason to suppress probative evidence of crime. Unnecessarily Intrusive Searches: Court was not OK with a search of a birthing clinic where an innocent couple with a newborn were, and the search lasted through the whole night. 8th Cir. held it was unreasonable, even though conducted pursuant to a warrant and PC. When Is the Search Completed? Officers must terminate a search when all of the materials describe in the warrant have been found. But it can be difficult to determine whether all evidence described in the warrant has been found. o Courts dont seem interested in imposing temporal or spatial limitations on searches for narcotics. Rule: Officers must terminate a search when all of the materials described in the warrant have been found, but that can be difficult to determine. Presence of the Warrant: Rules require officer to serve the person searched with a copy of the warrant, but this doesnt have to happen before the search takes place.

c. Assistance from Private Citizens (163-64) Unwilling Assistance: US v. NY Tel. Co = Court held that, upon a showing of PC, district judge had power to order an unwilling telephone company to assist the govt in installing pen registers. All Writs Act states: S.C. and all courts established by Act of Congress may issue all writes necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. o Court found this sufficient authority for a court to compel a private person to act. Willing Assistance: Courts have found no 4A violation where an officer asked two corporate employees to assist him in a search of the premises. Civilians were serving a legitimate investigative function because they could assist the officer, who did not have the necessary technical expertise. Courts not OK when a private citizen is present, not in aid of the officers of their mission, but for his own purposes, e.g., involving the recovery of stolen property. Officers exceed the scope of the warrant when they permit unauthorized invasions of privacy by third parties who have no connection to the search warrant. Rule: Officers exceed the scope of the warrant when they permit unauthorized invasions of privacy by third parties who have no connection to the search warrant. Rule: It is generally held reasonable for private citizens to accompany officers executing a warrant serving a legitimate investigative function because they could assist the officer, who did not have the necessary technical expertise. Rule: It is not reasonable for a private citizen to be present during the execution of a warrant, not in aid of the officers of their mission, but for his own purposes. d. Media Ride Alongs (164-66) Problem Is 4A ok with officers inviting media along when they execute a search? o Court held in Wilson v. Layne that the media observation of the execution of the arrest warrant in the petitioners home constituted a 4A violation, even though the photos taken were never published. o Police actions undertaken in execution of a warrant must be related to the objectives of the authorized intrusion. o Court rejected the idea that general law enforcement purposes were furthered by allowing media ride-alongs. o Reporters were there for their own purposes, not to protect the officers, and not to protect the defendants.

o Exclusionary rule was not operative here. Court did not decide whether the exclusionary rule would apply to any evidence discovered or developed by the media representatives. Rule: Media observation of the execution of the arrest warrant in the petitioners home constituted a 4A violation because police actions undertaken in execution of a warrant must be related to the objectives of the authorized intrusion. (Wilson v. Layne)

5. Neutral Magistrates (166-69) Neutral and Detached: Coolidge v. New Hampshire = Court invalidated a warrant issued by the states AG, who was authorized to act as a justice of the peace. Court said that an executive officer, who was the head of law enforcement, could not be neutral or detached. Connally v. Georgia = Court held that a magistrate who was paid a fee if he issued a warrant, but nothing if he denied the application, was not neutral or detached. United States v. McKeever (5th Cir.) = Magistrate may retain certain law enforcement duties without losing neutrality. Rule: An executive officer who serves as the jurisdictions head of law enforcement cannot be a neutral and detached magistrate. Rule: Rubber Stamp: If magistrate fails to read the warrant, he is a rubber stamp and not neutral/detached. This is difficult to prove, though. Legal Training: Shadwick v. City of Tampa = Magistrate doesnt need to have legal training. Determining PC is not too difficult a task, considering we trust juries to do a lot more. Magistrate Decisions: No requirement that magistrate give reasons for his determination. VI. Exceptions to the General Requirements of Warrant and Probable Cause A. Plain View and Plain Touch (335-42) Plain view doctrine is best understood, not as an independent exception to the warrant clause, but simply as an extension of whatever the prior justification for an officers access to an object may be. If an officer has a right to be in a particular place and comes upon evidence that they have PC to believe is subject to seizure, they can seize it. Rule: If an officer comes upon evidence in plain view while in a place he has a right to be, he can seize it as long as he has PC to believe its subject to seizure. Horton v. California (1990)

Question: Whether the warrantless seizure of evidence of crime in plain view is prohibited by the 4A if the discovery of the evidence was not inadvertent. o Holding: Even though inadvertence is a characteristic of most legitimate plain view seizures, it is not a necessary condition.

Rule: Discovery of evidence in plain view need not be inadvertent in order to fall within the scope of the plain view doctrine. (Horton v. California) Officer got a warrant for proceeds of the robbery, not the weapons, but when he was conducting the search for the proceeds, he discovered the weapons in plain view and seized them. o He said he was looking for the proceeds but also other evidence that would connect petitioner to the crime; hence the seized evidence was not discovered inadvertently. The plain view doctrine is an exception to the general rule that warrantless searches are presumptively unreasonable. o Seizure of objects in plain view does invade the owners possessory interestjust not their privacy interest. Paradigmatic plain view situation: police have a warrant to search a given area for certain objects, but come across some other incriminating evidence. o Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by a recognized exception to the warrant requirement, the seizure is also legitimate. Goals of law enforcement are best achieved by the application of objective standards of conduct, rather than standards that depend on the subjective state of mind of the officer. o The fact that an officer is interested in an item and even expects to find it in the course of another search should not invalidate its seizure as long as that search was legit under the terms of a warrant (or exception to the warrant requirement).

Rule: The fact that an officer expects to find the item in the course of another search does not invalidate the seizure of that item if he does find it, as long as the initial search was legitimate. (Horton v. California) Inadvertence is not necessary because this interest is already protected by the requirements that no warrant issue unless it particularly describes the places to be searched and persons or things to be seized. In other words, were not worried that this will lead to a very general search. o If the scope of the search exceeded what was permitted by the terms of the warrant, the subsequent seizure is unconstitutional without more. Prohibition against general searches and warrants serves primarily as a protection against unjustified intrusions on privacy.

Probable Cause To Seize an Item in Plain View:

Arizona v. Hicks = Court held that PC is necessary to justify a search that precedes a plain view seizure. Plain view doctrine is designed to spare police (whose viewing of the object in the course of a lawful search is as legitimate as it would have been in a public place) the inconvenience and risk of going to get a warrant. Holding: Officer must have PC to seize an item that he views during the course of legal activity, and that PC must be readily apparent, i.e., that PC must exist without the necessity of a further search. Rule: Officer must have PC to seize an item that he views during the course of legal activity, and that PC must be readily apparent, i.e., PC must exist without the necessity of conducting a further search (Arizona v. Hicks). The Plain-Touch Doctrine: Minnesota v. Dickerson = Can an officer, acting in the course of lawful activity, seize an object if he can determine by touch that the object is evidence or contraband? o Officer was conducting a stop and frisk and felt a pea-shaped object that he had PC to believe was cocaine. Court accepted argument that officer had obtained PC by plain touch, and said officers could discover contraband though the sense of touch during an otherwise lawful search. o With plain view, the idea is that there was no new search independent of the initial intrusion; same thing is going on here; there has been no additional invasion of the suspects privacy beyond that already authorized. However, officer cannot push and prod the object, because this goes beyond the permissible scope of touching allowed for stop and frisks. The incriminating character of the object must be immediately apparent. The prodding etc chus constituted an additional search. Rule: An officer can obtain PC from a search in which he discovers contraband by plain touch, i.e., by conducting a lawful search, such as a stop-and-frisk. (Minnesota v. Dickerson) B. Warrantless Arrests 1. General Background (169-71) Presumption of unreasonableness for a search conducted without a warrant can be overcome in some circumstances. Sometimes, those circumstances still require the officer to have PC, other times, the officer doesnt even need that. Arrests in Public and in the Home:

Officers can arrest a person without a warrant if he has reasonable cause to believe the person: o committed a felony or a misdemeanor, or o that he committed a misdemeanor or petty misdemeanor in the officers presence, or o the person will not be apprehended unless immediately arrested, or o may cause injury to himself or others o or damage to property unless immediately arrested.

Rule: An officers can arrest a person without a warrant if he has reasonable cause to believe that: The person committed a felony or a misdemeanor; He committed a misdemeanor or petty misdemeanor in the officers presence; The person will not be apprehended unless immediately arrested; or He may cause injury to himself or others, or damage to property unless immediately arrested. Officer must always have probable cause to arrest the suspect. Arrest v. Summons: When the death penalty was more prevalent, offenders had significant incentive to try to escape. Rule: A custodial arrest is always reasonable if the officer has PC of a criminal violation. (Atwater v. City of Lago Vista) o It is clear after this case that the decision to proceed by arrest or summons is entirely within the officers discretion. Rule: A custodial arrest is always reasonable if the officer has PC of a criminal violation; the decision to proceed by arrest or summons is entirely within the officers discretion. (Atwater v. City of Lago Vista) 2. In Public Places (171-174) The Constitutional Rule: Arrests in Public United States v. Watson Watson moved to suppress evidence found during his arrest on the grounds that the arrest was illegal because it was warrantless. Tradition has always been to authorize warrantless public arrests on PC rather than burden litigation with disputes over practicality of getting a warrant, possibility of flight, etc. Powells concurrence: o An arrest is a seizure, so why doesnt the Constitution impose the same limits on these as it does for arrests?

o A search can cause annoyance and temporary inconvenience; an arrest is a serious personal intrusion regardless of the persons guilt or innocence. o A rule requiring warrants for felony arrests (except in exigent circumstances) would hamper police practices, and possibly imperil the entire prosecution. Rule: An officer can conduct a warrantless arrest in public as long as he has PC that the person committed a felony. 3. Excessive Force (174-78) Tennessee v. Garner = Court held that under 4A, deadly force may not be used to prevent the escape of a felon unless it necessary to prevent the escape and the officer has PC to believe that the suspect poses a significant threat of causing death or serious physical injury to the officer or others. Rule: Deadly force may not be used to prevent the escape of a felon unless it necessary to prevent the escape and the officer has PC to believe that the suspect poses a significant threat of causing death or serious physical injury to the officer or others. (Tennessee v. Garner) Rule: All claims of excessive force in the making of an arrest are governed by 4A standards of reasonableness. Courts look to: Severity of the crime at issue; Whether the suspect poses an immediate threat to the safety of the officers or others; and Whether he is actively resisting arrest or attempting to evade arrest by flight. (Graham v. Connor) High Speed Chases: Scott v. Harris = Court held that a law enforcement official can, consistent with the 4A, attempt to stop a fleeing motorist from continuing a public-endangering flight by ramming the motorists car from behind. Officers are not required to avoid a risk to the public by simply stopping their pursuit of a suspect in car. Appropriate to balance the risk to the suspect against the risk to the public of a continued chase. Rule: A police officers attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the 4A, even when it places the fleeing motorist at risk of serious injury or death. Excessive Force and Public Protest: Analyzed under Graham factors:

o Nature and quality of the intrusion upon arrestees personal security was minimal; o Legitimate interest in removing protesters even their crimes were mostly misdemeanors; o Concern about risks to the public. 9th Cir. held that police officers are not required to use the least intrusive degree of force possible. Rather, the inquiry is whether the force used was reasonable, viewed from the perspective of reasonable officers on the scene.

4. Protections Against Erroneous Warrantless Arrests (179-84) Under Watson, if an officer has PC to believe that a person has committed a felony, he can arrest the suspect in a public place without a warrant. Gerstein v. Pugh = Court declared that if a person is arrested without a warrant, he is entitled to a prompt post-arrest assessment of PC by a magistrate. County of Riverside v. McLaughlin Question: how promptly is an arrestee entitled to a judicial determination of PC for arrest, when that person is being held in pretrial detention? People in county could be held, in some cases, for 5-7 days before receiving a PC determination. States have an interest in protecting public safety by taking into custody people reasonably suspected of committing crimes; on the other hand, prolonged detention can imperil a suspects job, interrupt his source of income, and impair his family relationships Gerstein held that these determinations must be prompt, not immediate. Holding: o A jurisdiction that provides this determination within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein. However, these hearings can be delayed unreasonably, e.g., if it is delayed so the police can gather additional evidence to justify the arrest; if the delay is motivated by ill will. But in these cases, the detainee bears the burden of proof. o When an arrested individual does not receive that hearing within 48 hrs, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. Detentions for Less than 48 Hours: United States v. Davis (8th Cir.) = Court held that even short delays are unreasonable when they are motivated by a desire to uncover additional evidence to support the arrest or to use the suspects presence solely to investigate the suspects involvement in other crimes. Remedy for a McLaughlin Violation:

Possible damages recovery; Courts have found that evidence obtained from the defendant during an unreasonably excessive delay can be excluded only if it was obtained as a result of an unreasonable detention. o Thus, exclusion is not required if the magistrate would have found PC for the detention even if the hearing had been promptly conducted.

5. Arrests in the Home (184-88) The Payton Rule: Question: Is a warrant necessary to enter a home to make an arrest? Payton v. New York = Court held that the exception to the warrant requirement for public arrests did not extend to arrests in the home. Court concluded that the 4A draws a firm line at the entrance to the home; absent exigent circumstances, that threshold may not reasonably be crossed without a warrant. Police need to get an arrest warrant, not a search warrant; an arrest warrant founded on PC implicitly carries with the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. Rule: To arrest a person in his home, the police need an arrest warrant. (Payton v. New York) Reason To Believe the Suspect Is at Home: Officer executing the search warrant is free to determine whether enough information exists to believe that evidence described in the warrant is located in a certain place. 11th Cir For law enforcement officials to enter a residence to execute an arrest warrant, totality of circumstances must warrant a reasonable believe that the suspect is within his residence. Is the Arrest at Home or in Public? 2d Cir. Court held that the definition of home did not indicate the entrance to a common hallway. What about arrests made in doorways? Homeless Persons: Courts are split on what to do. Hotels and Motels: Payton applies with equal force to a properly rented hotel or motel room during the rental period. However, this is only the case as long as the arrestee has rightful possession of the room. If the rental period has terminated or the person has been ejected, an arrest warrant is not required.

Rule: To arrest a person in a properly rented hotel or motel room during the rental period, the police need an arrest warrant. 6. Arrests in a Third Partys Home (189-91) What happens when the suspect is arrested in the home of a third person? Steagald v. United States = Court concluded that a search warrant must be obtained to look for a suspect in the home of a third party, absent exigent circumstances or consent. Note that the difference between an arrest warrant and a search warrant is that an arrest warrant only requires the magistrates determination that there is PC to arrest a person; it is not specific as to location. Majority held that an arrest warrant would not sufficiently protect the privacy interests of the third party homeowner. Didnt want police to be able to search all of the homes of an individuals friends or acquaintances. Rule: To look for a suspect in the home of a third party, the police need a search warrantnot an arrest warrant. After Steagald, its important for an officer to determine whether the suspect lives on the premises (in which case an arrest warrant is sufficient) or is merely a visitor (in which case a search warrant is required). 8th Cir. not necessarily the case that a person can have only one residence for 4A purposes. Questions of Standing: Suspect arrested cannot object to the lack of search warrant if officers find him in the home. Steagald is concerned with the homeowners privacy rights, not with the visiting suspect. Rule: A suspect arrested in another persons home has no standing to object to the lack of search warrant because Steagald is concerned with the homeowners privacy rights. The Rights of an Overnight Guest: Minnesota v. Olson Minnesota v. Olson = Court concluded that an arrest warrant was required to arrest a person who an overnight guest in the home a third party. Opinion emphasized that a persons status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to accept as reasonable. o Basically, the idea is that the SUSPECT (not the homeowner) has a sufficient expectation of privacy in the premises to be entitled to the protections of the warrant requirement. So does this mean the police need a search warrant, too? Rule: To arrest a person who is an overnight guest in the home of a third-party, police need an arrest warrant. (Minnesota v. Olson)_

Minnesota v. Carter = Carter objected to a warrantless search of an apartment that they were in for a couple of hours cutting up cocaine. Court held that the defendants had no expectation of privacy there sufficient to trigger 4A. Somewhere between being an overnight guest and someone merely legitimate on the premises; but their residence here was purely commercial, and there was a lack of any previous connection between the respondents and the householder. Temporary Visitors: Overnight guest has a sufficient expectation of privacy in the premises to be entitled to the protections of the warrant requirement. (Minnesota v. Olson) In Minnesota v. Carter, Court held that defendantswho presence fell somewhere between that of an overnight guest and one merely legitimately on the premiseswas not entitled to that protection, due to the purely commercial nature of the transaction engaged in on those premises, the relatively short time they were there, and the lack of any previous connection between the defendants and the homeowner. 7. Material Witnesses (191-93) Police also have power to arrest and detain a material witness to a crime under certain circumstances. Federal material witness statute = 18 USC 3144 o If the testimony of that person is material, and if it is shown that it may become impracticable to secure that persons presence by subpoena, a judicial officer can arrest the person. o Must be the case that deposition is not an adequate substitute. o No constitutional right to monetary compensation for time spent in this confinement. 2d Cir. has suggested it would be improper for the government to use this statute to detain a person suspected of criminal activity for which PC has not yet been established. Some commentators concerned that it provides officials with a potential carte blanche. This is because no showing of PC is required. Allegations of Pretextual Use of the Material Witness Statute: - Allegations that the law is being used as a means of detaining suspects rather than preserving witness testimony. Ashcroft v. Al-Kidd = - Question: Whether the AG has immunity for allegedly authorizing federal prosecutors to obtain valid material-witness warrants for detention of terrorism suspects whom they would otherwise lack probable cause to arrest - Facts: AG allegedly authorized federal prosecutors and law enforcement officials to use the law to detain individauls with ties to terrorist organizations, with no

intention of calling most of these individuals as witnesses. D was arrested and never called as a witness. Lower court held that 4A prohibits pretextual arrests under the law absent PC that the individual violated the law. Court rejects this argument: 4A reasonableness is predominantly an objective inquiry. If the circumstances justify the challenged action, it doesnt matter what the subjective intent of the official was. 4A regulates conduct rather than thoughts (two exceptions to this are specialneeds searches and administrative searches); Court has rejected invitations to probe subjective intent. A warrant issued by a neutral magistrate authorized this arrest; the affidavit gave individualized reasons to believe that he was a material witness and would soon disappear. Whren doesnt stand for the proposition that ulterior motives do not invalidate a search that does not have PC; search can be legitimate for other reasons. Because the arrest would have been constitutional absent the alleged pretextual use of the warrant, there is no violation. Concurrence: o May not be the case that this warrant falls under the Warrant Clause, in which case it might be governed by reasonableness instead. o Its not clear that the warrant was facially valid.

C. Searches and Seizures Pursuant to the Arrest Power The Arrest Power Rule = In some situations, a warrantless search is permitted if it is incident to a valid arrest. 1. Spatial Limitations (288-93) Chimel v. California Question: What is the permissible scope of a search incident to a lawful arrest under the 4A? Chimel was advised that, on the basis of lawful arrest, the officers would conduct a search of his entire home even though no search warrant had been issued. o They seized several items, and the search took between 45 minutes and an hour. The seized items were admitted into evidence against him. United States v. Rabinowitz = A warrantless search incident to a lawful arrest may generally extend to the area that is considered to be in the possession or under the control of the person arrested. Rule: A warrantless search incident to a lawful arrest may generally extend to the area the suspects person and the area within his immediate control (the grab area). (Chimel v. California)

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. o Otherwise, the officers safety might be endangered or the arrest frustrated. It is also reasonable for the arresting officer to search for and seize any evidence on that person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. o E.g., a gun on a table or in a drawer in front of one who is arrested. There is thus ample justification for a search of the arrestees person and the area within his immediate control, construing this phrase to mean the area from within which he gain possession of a weapon or destructible evidence. o Conversely, there is no comparable justification for a search of any other room in which the arrest occurs. One concern is that officials could engage in searches not justified by PC by the simple expedient of arranging to arrest suspects at home rather than elsewhere. Dissenters: An arrest itself may often create an emergency situation that makes it impracticable to obtain a warrant. There will almost always be a strong possibility that confederates of the arrested man will in the meanwhile remove the items for which the police must have PC to search.

Timing of Grab Area Determination: Is permissible scope determined by where the suspect was arrested, or where the arrestee is at the time the search occurred? 2. Post-arrest Movements (293-94) Arrest Power Can Be Invoked for Any Custodial Arrest and Can Cover Post-Arrest Movements: Washington v. Chrisman = Court held that the absence of an affirmative indication that an arrested person might have a weapon available or might attempt to escape does not diminish the arresting officers authority to maintain custody over the arrest person and to conduct an automatic search for evidence and weapons within the grab area. Every arrest must be presumed to present a risk of danger to the arresting officer, because there is no way for an officer to predict reliably how a particular subject will react to the arrest. In this case, arresting officer following defendant to his dorm room. Court reasoned that once the officer placed his suspect under arrest, the officer had a right to remain literally at the suspects elbow at all times. Rule: Every arrest, regardless of the crime suspected, gives rise to the arrest power to search because every arrest must be presumed to present a risk of danger to the arresting

officer; there is no way for an officer to predict reliably how a particular subject will react to the arrest. 3. Exigencies Arising from an Arrest Being Made (294-96) Arrest Leading to Exigent Circumstances: In almost all cases, the arrest itself will give rise to exigent circumstances to search beyond the grab area of the arrestee. Friends, family, or business associates will become aware of the arrest and try to destroy evidence. However, the Court still requires a showing of exigency on the particular facts of the case; the arrest of the person, while relevant, is not dispositive. o DC Cir. has written that an officer can demonstrate that he had an objectively reasonable belief that contraband is being, or will be, destroyed within a home if he can show a reasonable belief that third persons were inside a private dwelling and a reasonable belief that these third persons are aware of an arrest of a confederate outside the premises so that they might see a need to destroy evidence. Rule: In almost all cases, the arrest itself will give rise to exigent circumstances to search beyond the grab area of the arrestee, for friends, family, or business associates who become aware of the arrest will try to destroy evidence. Protective Sweep After an Arrest: Pursuant to Terry, police may have authority to search beyond grab area in order to conduct a protective sweep of the place where the arrest is made. A protective sweep is a quick and limited search of premises, incident to an arrest, and conducted to protect the safety of the police officers or others. (Maryland v. Buie) Rule: Incident to arrest, police can conduct a protective sweepthat is, a quick and limited search of the premises limited only to places where a person could be hiddenon RS that the premises harbor an individual posing a danger to the officers or others. (Maryland v. Buie) A protective sweep can be justified by reasonable suspicion that the area swept harbored an individual posing a danger to the officer or others. PC is not necessary. N.B. Unlike a search incident to an arrest, a protective sweep is limited to areas where person may be hidden. o Nor does an officer have an automatic right to conduct a protective sweep; it must be safety-based, and cannot be conduct to root out evidence or those who might destroy evidence. They have to pose a risk to officers.

Rule: 4. Temporal Limitations (296-97)

Sequence of Search and Arrest: Generally these take place after the arrest itself. But courts are OK with the two occurring nearly simultaneously as long as PC to arrest existed before the search was conduct. When the formal arrest followed quickly on the heels of the challenged search of petitioners person, we do not believe it particularly important that the search preceded the arrest rather than vice versa. (Rawlings v. Kentucky) o Concerned that police will use the fruits of the search to establish PC. While a search can precede the arrest, a search cannot be used to provide the PC necessary to make the arrest. Rule: While a search incident to arrest can precede the arrest, that search cannot be used to provide the PC necessary to make the arrest. Removal From the Arrest Scene: If the search is too removed from the arrest, it will not qualify for the exception. Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest. o This is because the reasons for that search no longer obtain when the accused is safely in custody at the stationhouse. However, searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention. (United States v. Edwards) o Basically, most searches and seizures of the arrestees person and things in his possession at the time of arrest can be examined automatically. 5. Incident searches of the person, and associated containers (297-301) Searches of the Person Incident to Arrest: United States v. Robinson = Officer conducted a valid arrest of defendant, and then searched him. During the search, he felt an object but couldnt figure out what it was. He pulled it out, and it was a crumpled up cigarette package. He opened it and found heroin. Holding: The search conducted did not violate the 4A. Search incident to arrest is a general exception to the warrant requirement, and it has two components: o Search of the person; o Search of the area within control of the person. In the case of the former, its long established that officers have an affirmative authority to search. He is not obligated to conduct limited frisk of the outer clothing; principles of Terryi.e., that only a search for weapons is justify do not carry over.

Rule: Principles of Terryi.e., limited to frisking outer clothing to search for weapons do not apply to searches incident to arrest. (United States v. Robinson) o This is because the justification here is different: authority to search is not just about disarming the suspect, but about the need to preserve evidence on his person for later use at trial. o The standards governing a search incident to arrest are thus not commuted by Terrys strict standards. Nor does it matter that the defendant was just arrested for a traffic violation; there is still a safety risk to the officer. A police officers determination re: how and where to search the person of a suspect is necessarily a quick ad hoc judgment that courts will defer to. Powells concurrence: individual lawfully subject to arrest retains no interest in the privacy of his person. As long as that arrest is lawful, this privacy interest is subordinated by a legitimate government concern. Dissent: The determination of whether to issue a citation or effect a full arrest is discretionary, and a police officer lacking PC to obtain a search warrant may then use the traffic arrest as a pretext to conduct a search.

6. Custodial Arrests for Minor Offenses (301-09) Atwater v. City of Lago Vista = Question: Whether the 4A forbids a warrantless arrest for a minor criminal offense, such as a misdemeanor seat belt violation punishable only be a fine? o Holding: It does not. Defendant was put under custodial arrest for seatbelt misdemeanor. Defendant argued that under common law, peace officers were not allowed to make warrantless misdemeanor arrests except in cases of breach of the peace, but Court found that common law had reached divergent conclusions. We have traditionally recognized that a responsible 4A balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review. The fact that the law has never adopted Atwaters proposed approach suggests that there is no warrantless misdemeanor arrest problem that needs constitutional attention. Rule: If an officer has PC to believe that an individual has committed even a very minor criminal offense in his presence, he may arrest the offender without violating the 4A. The arrest mas not made in an extraordinary manner, unusually harmful to her privacy or physical interests, though surely it was embarrassing and inconvenientbut all arrests are.

7. Search of an Automobile Incident to Arrest (Belton, Thornton, and Gant, pages 30921)

Robinson and Containers in the Arrestees Grab Area: Robinson establishes an automatic right to search everything found on a person who has been subjected to a custodial arrest. o Does this extend to containers found in the arrestees grab area? o Court has not been clear. If this is the case, it would mean that briefcases, etc could be seized but not searched. o However, most lower courts have applied the automatic arrest power rule of Robinson to search of briefcases etc in the arrestees grab area. Rule: Most lower courts have applied the automatic arrest power rule of Robinson to search of containers in the arrestees grab area. Arrest Power Rule Applied to Cars: If an officer has PC to believe that the driver committed a crime, and he places the driver under arrestand then handcuffs him in the squad carcan the officer search the car incident to arrest? The Belton Rule: New York v. Belton = Court held that the passenger compartment of an automobile constitutes the grab area of the car, so they could search the car incident to the arrest and open any containers found in it. Lower courts held that arresting officer had an automatic right to search the passenger compartment and all passengers therein, even if the arrestee had no absolutely no way to access anything in the car. Scalia in Thornton: An automatic search of the passenger compartment incident to arrest cannot be supported by the reasons cited by Chimel for the search power. o However, there is nothing irrational about broader police authority to search for evidence when and where the perpetrator of a crime is lawfully arrested. The fact of prior lawful arrests distinguishes the arrestee from society at large, and distinguishes a search for evidence of his crime from general rummaging. Limitations on Arrest Power After the Arrest of a Recent Occupant: Arizona v. Gant = Court rejected the Belton rule, but substitutes Scalias evidence-based view of the arrest power. Defendant was handcuffed in the squad car when police searched his car and discovered drugs in the backseat. This search was not justified by Chimel, because Chimel can only search the space within the arrestees immediate control; however circumstances unique to the automobile context justify a search incident to arrest when if it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.

Rule: Officers may conduct a warrantless search of an automobile incident to arrest only if it is reasonable to believe that evidence relevant to the crime might be found there or the arrestee is within reaching distance of the passenger compartment at the time of the search. (Arizona v. Gant) Rule: When a recent occupant of a vehicle is arrested for a traffic violation, there will likely be no reasonable basis to believe the vehicle contains relevant evidence.

Under Chimel, if there was no possibility that an arrestee could reach into the area that law enforcement officers sought to search, both justifications for this exception were absent. o Belton was based on the assumption that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within the area into which an arrestee might reach. o In many cases, such as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. Rejection of Belton because it authorizes police officers to search not just the passenger compartment but every purse, briefcase, or other container with that space. This creates a serious and recurring threat to the privacy of countless individuals. The fact that the law enforcement community has to come to rely on Belton searchesto see these searches as an entitlementdoes not provide a legitimate basis under the 4A to permit a warrantless search. Police may search a vehicle incident to a recent occupants arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Scalias concurrence: o When an arrest is made in connection with a roadside stop, police virtually always have a less intrusive and more effective means of ensuring their safety: ordering the arrestee away from the vehicle, patting him down, and handcuffing him in the back of the squad car.

Notes on Gant: Court states that the justification for a Chimel-based search is now that there must be a danger that the arrestee has access to the car at the time of the search. 8. Arrest-Power Rule Without an Arrest? (322-23) In the cases above, a custodial arrest was authorized, but not mandatory. If an officer makes a traffic stop and merely issues a ticket, does the arrestpower rule apply? Knowles v. Iowa = Question: Whether issuance of a citation, rather than an arrest, authorizes an officer to conduct a full search of the car. (A: No) The defendant could have been arrested under state law, but instead was issued a citation. The officer conducted a full search of the car and found drugs.

o Defendant argued that evidence should be suppressed because there was no arrest, so the search could not fall within the search-incidentto-arrest exception. There are two rationales for the search incident to arrest, but neither of these is sufficient to justify the present search. o The threat to officer safety from issuing a traffic citation is a good deal less than in the case of a custodial arrest. These are relatively brief counters; they cannot by themselves justify the greater intrusion attending a full field-type search. Nor is there any need to discover and preserve evidence; once the defendant was stopped for the traffic citation, all the evidence necessary to prosecute that offense had been obtained.

Rule: If an officer simply issues a citationeven if he could have arrested the occupanthe cannot conduct a search of the car incident to that citation. (Knowles v. Iowa) Notes: Knowles provides police officers with some incentive to use a custodial arrest rather than a ticket (maybe).

D. Pretextual Searches and Seizures (324-35) Whren v. United States = Question: Whether the temporary detention of a motorist who the police have PC to believe has committed a traffic violation is inconsistent with the 4A unless a reasonable officer would have been motivated to stop the car by a desire to enforce the traffic law. Facts: Officers start following a car, which then speeds off. When they stop the car, they see two large bags of drugs. Defendants argued that that the officers asserted ground for approaching the vehicleto give the driver a warner re: the traffic violationwas pretextual. o They argue that, because total compliance with traffic and safety rules is nearly impossible, police have wide discretion re: who to stop, and may stop persons based on impermissible factors such as race. The Court has never held that an officers motive invalidates objectively justifiable behavior under 4A. Rule: An officers discriminatory motives do not invalidate behavior that is objectively justifiable under 4A. Subjective intentions play no role in ordinary, probable-cause analysis under 4A. (Whren v. United States)

The constitutional reasonableness of traffic stops cannot depend on the actual motivations of the officers involved; while the Constitution prohibits selective enforcement of the law based on considerations such as race, the basis for objecting to discriminatory application is the EPC, not 4A. o Subjective intentions play no role in ordinary, probable-cause analysis under 4A. The 4As concern with reasonableness allows certain actions to be taken in certain circumstances, whatever the subjective intent. We are aware of no principle that would allow the Court to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement.

Testilying? Concerns about police perjury re: drugs in plain view and consent testimony. Extraordinary Pretext: 9th Cir upheld a case where defendant was pulled over for speeding, and where he was pulled over there just happened to be another officer present with his drug-detecting dog. o Clearly, although the officer had PC to believe that the defendant was violating the speed limit, the whole incident had been planned with the DEA, and were simply waiting for the defendant to violate traffic law o 9th Circ says Whren foreclosed the possibility that a search cannot be invalided by the subjective intentions of the officers. While Whren left some opening for cases that arent run of the mine, that was referring to the level of intrusiveness of the search. Equal Protection Issues: It is extremely difficult to prove an equal protection violation when it comes to police officer conduct in the streets. Defendant has to show that he was singled out because of his race or ethnicity, and that similarly situated white motorists were not stopped. o Even where statistics show a strong correlation between race and a particular outcome, the defendant must prove that the officials in his case were motivated by a discriminatory intent. The Court has shown no sign that it would interpret the EPC to embody an exclusionary rule remedy or dismissal of the case. PC of a Traffic Violation: One consequence of Whren is that courts often find themselves immersed in interpreting the intricacies of state and local traffic laws in order to determine whether the stop was justified by PC. Reasonable Mistake of Fact, Mistake of Law:

In assessing PC or reasonable suspicion (RS), the officer need not be correct. Reasonable mistakes of facts are excused. o Thus, if an officer stops a car for a traffic violation because of a factual error theyve made (e.g., thinking the car does not have a front license plate when it does, due to an error in perception), any evidence found is properly admitted. o A mistake of fact does not automatically negate the validity of the stop. An officer is justified in making a stop if he had an objectively reasonable basis for believing that the vehicle was not in conformity with state laws, even if it technically was not.

Rule: An officer is justified in making a stop if he had an objectively reasonable basis for believing that the vehicle was not in conformity with state laws, even if it technically was not. In other words, a mistake of fact does not automatically negate the validity of the stop.

Rule: If an officer is mistaken about whether a particular set of facts is in violation of the traffic law, a stop or arrest is unreasonable. In contrast, if the officer is mistaken about whether a particular set of facts is in violation of the traffic law, a stop or arrest is unreasonable. o An officers mistake of law, even if made in good faith, cannot provide grounds for RS or PC, because an officers mistake of law can never be objectively reasonable.

E. Exigent Circumstances (361-80) In some cases where police have PC to search or arrest, delay could: o Give the suspect opportunity to escape; o Give the suspect, or others, an opportunity to take up and use weapons, or hurt others; or o Give the suspect or others opportunity to destroy evidence. The exigent circumstances exception concerns fact-specific situations where the state must show that immediate action was reasonably necessary to prevent flight, or to safeguard the police or public, or to protect against the loss of evidence. Rule: Under the exigent circumstances exception, an officer can conduct a warrantless search or arrest as long as he has PC to believe that the persons/items would escape/be destroyed, or some other danger would arise, before a warrant could be obtained. This exception excuses the officer from having to obtain a magistrates determination that PC exists; it does not permit a search in the absence of PC. Officer must also have PC to believe that the persons/items would be gone, or some other danger would arise, before a warrant could be obtained. The exception applies equally to arrests and searches. Hot Pursuit: If officers are in hot pursuit of a suspect, this will excuse the requirement for an arrest warrant, or a search warrant where a search of an area must be conducted in order to find and apprehend the suspect. o Its unrealistic to expect officers to stop during a chase and resort to the warrant process, since it would allow the suspect to get away, destroy evidence, hurt others, etc. Rule: If officers are in hot pursuit of a suspect, this will excuse the requirement for an arrest warrant, or a search warrant where a search of an area must be conducted in order to find and apprehend the suspect. Warden v. Hayden = Warrantless search of the suspects home, after the suspect entered it, was justified by the hot pursuit exception, and the items found during this search therefore did not needed to be excluded.

Rule: The hot-pursuit exception to the warrant requirement allows officers to enter the suspects home once he enters it. Rule: The hot pursuit doctrine cannot apply where the suspect is unaware that he is being pursued by police officers. (Welsh v. Wisconsin) Hot pursuit doctrine serves to ensure that a suspect may not defeat an arrest which has been set in motion in a public place by the expedient of escaping into a private place. (United States v. Santana) Police and Public Safety: A warrant is excused if the delay in obtaining it would result in a significant risk of harm to the police or members of the public. Rule: A warrant is excused if the delay in obtaining it would result in a significant risk of harm to the police or members of the public. Public Safety and the Relevance of a Law Enforcement Objective: Brigham City v. Stuart = Question: Whether police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threated with such injury. (A: Yes) Responding to a 911 call, officers entered a home to break up a fight, and subsequently arrested the deefndants for disorderly conduct, intoxication, etc. One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with injury. Accordingly, officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. Courts cases have repeatedly rejected considering the subjective motivations of officer; an action is reasonable under the 4A, regardless of the individual officers state of mind, as long as circumstances, viewed objectively, justify the act. Here, the officers were confronted with ongoing violence occurring within the home (as opposed to a minor offense that had been committed in the past). In these circumstances, the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence was just beginning. Rule: Officers may conduct a warrantless search of a homeor some other location when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threated with such injury. (Brigham City v. Stuart) The Risk of Destruction of Evidence: If evidence will be destroyed in the time it takes to obtain a warrant, then the warrant requirement is excused. Typically disputed is whether there was really an imminent risk of destruction.

o 2d Cir: Essential question in determining whether exigent circumstances justified a warrantless entry is whether law enforcement agents were confronted by an urgent need to render aid or take action. Quoting DC Cir on relevant factors: Gravity or violent nature of the offense with which the suspect is to be charged; Whether the suspect is reasonably believed to be armed; A clear showing of PC to believe that the suspect committed the crime; A strong reason to believe that the suspect is in the premises being entered; A likelihood that the suspect will escape if not swiftly apprehended; and The peaceful circumstances of the entry (i.e., whether the officers attempted to knock and announce beforehand). Rule: If evidence will be destroyed in the time it takes to obtain a warrant, then the warrant requirement is excused. Rule: A court might look to the following factors to determine if the exigentcircumstances exception to the warrant requirement applies: Gravity or violent nature of the offense with which the suspect is to be charged; Whether the suspect is reasonably believed to be armed; A clear showing of PC to believe that the suspect committed the crime; A strong reason to believe that the suspect is in the premises being entered; A likelihood that the suspect will escape if not swiftly apprehended; and The peaceful circumstances of the entry (i.e., whether the officers attempted to knock and announce beforehand). Vale v. Louisiana = Vale was arrested outside his home for engaging in a drug transcation, and there was no indication that anyone was inside destroying evidence. Court held that exigent circumstances did not exist to search his home because the narcotics were not in the process of destruction. Cf. Richards v. Wisconsin = Court rejected the argued that exigent circumstances excusing the knock-and-announce requirement automatically arise in the search of a large-scale drug operation. However, even taking a case-by-case approach, there will almost always be exigent circumstances for a warrantless search (and no K&A) of a large-scale drug operation. Rule: Even taking a case-by-case approach, there will almost always be exigent circumstances for a warrantless search of a large-scale drug operation.

The Seriousness of the Offense: In assessing whether there is a risk of destruction of evidence sufficient to excuse a warrant, courts consider both the destructibility of the evidence and also the seriousness of the offense (since the more serious the offense, the greater the incentive to destroy evidence) Note: In assessing whether there is a risk of destruction of evidence sufficient to excuse a warrant, courts consider both the destructibility of the evidence and also the seriousness of the offense (since the more serious the offense, the greater the incentive to destroy evidence) Murder Scene: Mincey v. Arizona = Court rejected the govts argument that there should be a murder scene exception to the warrant requirement. Court held that the government must still make a showing of exigent circumstances. That said, there are plenty of reasons police could undertake a search of the murder scene, e.g., to determine if there are other victims of if a killer is still on the premises. o But if, as in this case, all the persons had been located before officers arrived and began their search, no exigent circumstances exist. Court expresses concerns about a slippery slope. Minor Offenses: Welsh v. Wisconsin = Court considered whether an offense could be so minor that it could not justify an exception to the warrant requirement, even given an imminent risk of destruction of evidence. Court wrote, It is difficult to conceive of a warrantless home arrest that would not be unreasonable under the 4A when the underlying offense is extremely minor, and should rarely be sanctioned when there is PC to believe only a minor offense has been committed. Rule: When the underlying offense is extremely minor, it may not justify an exception to the warrant requirement for a home arrest, even given an imminent risk of the destruction of evidence. (Welsh v. Wisconsin) Impermissibly Created Exigency: MacDonald (2d Cir.) = Court found that officers did not impermissibly create the exigency by revealing their presence. The fact that the suspects may reasonably be expected to behave illegally does not officers from acting lawfully to afford the suspects the opportunity to do so. Determination of exigenct circumstances is an objective one; not going to inquire whether there was bad faith. Holding: When law enforcement agents act in an entirely lawful manner, they do not impermissibly create exigenct circumstances.

Dissent: Officers return to the apartment was nothing more than a pretext designed to precipitate a crisis that did not exist then.

Rule: Law enforcement agents do not impermissibly create exigenct circumstances when they act in an entirely lawful manner. Prior Opportunity To Obtain a Warrant: If police can foresee that an exigency would arise at a certain time in the future, and have a strong case of PC and ample time to get a warrant before that exigency occurs, then that opportunity precludes the later invocation of the exigent circumstances exception. o Basically, it disentitles the officer from relying on subsequent exigent circumstances. Govt argues that officer shouldnt be required to go to the magistrate the first moment PC exists; they should have the right to take their time and strengthen their case. Rule: If police can foresee that an exigency would arise at a certain time in the future, and have a strong case of PC and ample time to get a warrant before that exigency occurs, then that opportunity precludes the later invocation of the exigent circumstances exception. Electronic Warrant: Warrants can be obtained electronically, through the phone, email, fax, etc. Does this change the calculation of delay re: obtaining the warrant? o Lower courts have said it does. Seizing Premises in the Absence of Exigent Circumstances: Segura v. United States = Court held that the seizure of premises pending a warrant was reasonable, even in the absence of exigent cirucmstances. Officers had PC to believe defendants were trafficking drugs; two officers waited in their apartment while a search warrant was being obtained. It is permissible to seize a premise for a reasonable period of time while diligent efforts are being made to obtain a warrant; seizing in this context means keeping occupants out, in order to protect against the destruction of evidence. Rule: Officers may temporarily seize a premise for a reasonable period of time while diligent efforts are being made to obtain a warrant (where seizing in this context will often mean keeping occupants out, in order to protect against the destruction of evidence). (Segura v. United States; Illinois v. MacArthur) Prohibiting Entry While a Warrant Is Being Obtained: Illinois v. Macarthur = Officer received tip from defendants wife about drugs, and prevented owner from reentering the trailer unaccompanied until he obtained a warrant.

o Defendant argued that drugs should be suppressed because they were the fruit of an unlawful police seizure. Question: Does the 4A prohibit the kind of temporary seizure at issue here? o Noit was reasonable in light of the following circumstnaces: Police had PC to believe his house contained evidence of a crime; Police had good reason to fear that, unless restrained, he would destroy the drugs before they could return with a warrant. Police made reasonable efforts to reconcile their needs with his personal privacy. They didnt search his home or arrest him before obtaining a warrant. The restraint they chose was significantly less restrictive. Police imposed this restraint for a limited period of time. This time period was no longer than reasonably necessary for the police. Court has never held unlawful a temporary seizure that was supported by PC and was designed to prevent the loss of evidence while police diligently obtained a warrant in a reasonable amount of time. Welsh not applicable because this intrusion was significantly less than a warrantless home arrest.

2. New case on impermissible creation of exigent circumstances: Kentucky v. King, 131 S.Ct. 1849 (2011), Supplement, pages 16-25. Impermissibly Created Exigency Bad Faith Creation of Exigent Circumstances and Prior Opporunity To Get a Warrant: Kentucky v. King = - Question: Whether exigent circumstances applies to a case where police caused the exigent circumstances through lawful conduct. (A: Yes) - Facts: Officers are going to arrest a drug dealer, but theyre not sure which apartment hes in. They knock loudly announce their presence, and when they do, they hear people moving inside. The officers believed that drug-related evidence was about to be destroyed. They go in and see the D with drugs. - Discussion: o In some sense, police always create exigent circumstances. o Exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable. Where the police do not create the exigency by engaging in or threatening to engage in conduct that violates the 4A, warrantless entry to prevent the destruction of evidence is reasonable. o It is irrelevant whether officials create the exigent circumstances with the bad faith intent to avoid the warrant requirement. o Nor does it matter if the exigent circumstances that arise from this action would be reasonably foreseeable.

o Nor does it matter have officials had probable cause but do not seek a warrant and choose to knock instead. Rule: Exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable. Where the police do not create the exigency by engaging in or threatening to engage in conduct that violates the 4A, warrantless entry to prevent the destruction of evidence is reasonable.

F. Stop and Frisk Situations in which police recognize they do not have PC, but want to stop someone for preliminary questioning. 1 The Reasonableness Test (193-212) Terry v. Ohio = Officer was patrolling and suspected two men of casing a job, i.e., performing a reconnaissance mission for a crime. He approached them, identified himself, and asked for their names. He then grabbed one of them and patted the outside of his clothing, where he felt a pistol. State characterizes this as the right of officers to make an on-the-street stop, interrogate, and pat down for weapons certain individuals. Harrassment by police officers would not be stopped by the exclusion of evidence at criminal trials. Court rejects the idea that this action does not trigger the 4A because it does not rise to the level of a search or seizure. o 4A governs seizures even that do not eventuate in a trip to the station house. Whenver a police accosts an individual and restrains his free to walk away, he has seized that person. Must determine both whether officers action was justified at its inception and whether it was reasonable related in scope to the circumstances. This is swift action predicated upon on-the-spot observations of an officer on the beatsomething that not historically been subject to the warrant procedure, for reasons of practicality. o So these have to be evaluated under the general proscription against unreasonable searches and seizures. First, have to focus on governmental interest which allegedly justifies this intrusion; officer must be able to point to specific and articulable facts that reasonably warrant intrusion. o Facts must be judge aganst an objective standard (cant be based on inarticulate hunches or simply good faith). Police officer has an interest in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could be unexpectedly and fatally used against him. o When an officer is justified in believeing that the individual he has stopped is armed and presently dangerous to the officer or others, the officer can take necessary measures to determine whether the person is armed and to netrualize that threat. The question in these cases will be whether a reasonable person would be warranted in the belief that his safety or that of others was in danger. o The sole justification for this search in this situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover instruments of assault.

Harlans concurrence: The right to frisk depends upon the reasonableness of a forcible stop to investigate.

Rule: When an officer has reasonable belief that the individual he has stopped is armed and presently dangerous to the officer or others, the officer can take necessary measures to determine whether the person is armed and to netrualize that threat. (Terry v. Ohio) Notes: In Terry, Court permits stops and frisks on less than PC and explicitly invokes the reasonable clause over the warrant clause as the governing standard. Criticism: after Terry, police intrusions are controlled by a malleable reasonableness standard that gives enormous discretion to the police.

An Early Application of Terry: Adams v. Williams = Officer received a tip (from someone he knew) that an individual seated in a nearby vehicle was carry narcotics and had a gun at his waist. Officer taps on car window, defendant rolls down window, and officer reaches into the car and removes a gun. Court held that officer acted justifiably in responding to the informants tip. Court rejected argument that reasonable cause for stop and frisk can only be based on officers personal information. Officers conduct was permissible in light of the safety riskshe was alone in a high crime area at 2 am. Bright-Line Rules Under Terry: Pennsylvania v. Mimms = Officers stopped Mimms for a traffic violation, and when he stepd out of the car, they noticed a large bulge in his jacket, so they conducted a frisk. Court held that the officer had acted properly under Terry. The officer was justified in stopping Mimms for the traffic violation, and he had sufficient cause to frisk Mimms for a weapon once he observed the bulge. Court held that officers in the course of a legal stop of an automobile have an automatic right under Terry to order the driver out of the vehicle. o Establishing a face-to-face confrontation diminishes the possibility that the driver can make unobserved movements. After the car has been stopped, the additional intrusion posed by asking the person to get out of the car is de minimis. Rule: Officers in the course of a legal stop of an automobile have an automatic right under Terry to order the driver out of the vehicle. (Pennsylvania v. Mimms) Mimms and Passengers: Marlyand v. Wilson = Court considered whether the automatic rule established in Mimms applied to passengers as well as drivers and held that it did. Court reasons that the same interest in the officers safety is present; the fact that there is more than one occupant of the vehicle increases the possible sources of harm to the officer.

While there is not the same basis for ordering the passengers out of the car, the additional intrusion is minimal because the passenger has already been stopped.

Rule: Officers in the course of a legal stop of an automobile have an automatic right under Terry to order passengers out of the vehicle. (Maryland v. Wilson) Protetive Frisk of Passengers: Arizona v. Johnson = Court upheld the protective search of a passenger when the driver has been lawfully stopped for a traffic violation. Officers who conduct routine traffic stops may perform a patdown of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous. But this power is not automatic; there must be reasonable suspicion with respect to whoever is being frisked. Rule: Officers who conduct routine traffic stops may perform a patdown of a driver and any passengers only if they have RS that the passenger may be armed and dangerous. (Arizona v. Johnson) Mimms Applied: New York v. Class = Class was stopped for a traffic violation; officer was looking for vehicle identification number, and entered the car to move the obstruction, at which point he discovered a gun. Court held that the officer had acted reasonably. In order to observe a VIN generally visible from outside an automobile, a police officer may reach into the passenger compartment of a vehicle to more papers obscuring it after the driver has been stopped for a traffic violation and has exited the car. Court reasoned that officers may detain an individual outside a car to protect themselves from danger; thus, officers were not required to ask Class to reenter his car to remove the papers. Basic question is whether officers efforts to inspect the VIN were reasonable. Detention of Occupants of a Residence During Legal Law Enforcement Activity: Michigan v. Summers = Court held that police officers with a search warrant for a home can require occupants of the premises to remain while the search warrant is executed. Court reasoned that such a seizure is always reasonable because of the interest in preventing flight and the risk that persons leaving the premises would attempt to destroy evidence. Rule: Police officers with a search warrant for a home can require occupants of the premises to remain while the search warrant is executed in order to prevent flight and the risk that persons leaving the premises might attempt to destroy evidence. (Michigan v. Summers)

Muehler v. Mena = Court upheld the handcuffing and detention of a person during the warranted search of the home of a suspected gang member. Court reasoned that the officers had reason to believe at least one member of a gang lived at the address, and they suspected he was heavily armed and dangerous. Officers entered Menas bedroom while she was sleeping and placed her in handcuffs at gunpoint; they then detained her in her garage. She argued that she was detained for an unreasonable time and in an unreasonable manner. Court held that 4A was not violated by her detention. Relied on Michigan v. Summers to authority to detain occupants while a search is conducted. o Three law enforcement interests: Preventing flight; Minimizing risk to officers; Facilitating orderly completion of the search. The seizure was reasonbale because a warrant existed to search that address and she was an occupant of that address at the time of the search. o Use of handcuffs was reasonably given the high risk. 2. Brief Detentions: The Line Between Stop and Encounter (212-32) The Mendenhall Free To Leave Test: United States v. Mendenhall = Officer asked defendant to accompany him to the DEA office for further questions, and she did so without saying anything. Justice Stewart concluded that when Mendenhall was approached, no seizure had occurred. o Event took place in public space, agents wore no uniforms and didnt display weapons; didnt summon her; and requested, but did not demand, to see her ID. o Thus, ti did not amoung to an intrusion upon a constitutional interest. o Rule: A person has been seized within the meaning of the 4A only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. E.g., threatening presence of several officers, display of weapon, some physical touching, use of language/tone to indicate compliance would be compelled The free-to-leave test is the initial benchmark of determining whether a person has been stopped within the meaning of Terry. Rule: A person has been seized within the meaning of the 4A only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. (United States v. Mendenhall) Applying the Free-To-Leave Test: Florida v. Royer = Defendant testified he believed he was not free to leave, and detective said he had no PC to arrest until after opening the mans suitcases.

Court found that a seizure occurred when the officers took his ticket and drivers license and started walking away. Amounted to a show of official authority such that he would not have felt free to leave. Officers made no effort to advise him that he need not consent to the search.

Factory Sweeps: INS v. Delgado = Court held that INS officers did not seize workers when they conducted factory surveys in search of illegal aliens. Officers positioned themselves near the buildings exists, and asked questions about their citizenship; if workers gave an unsatisfactory answer, they were asked to produce their papers. Court said that police questioning, by itself, is unlikely to result in a 4A violation; the fact that most people respond to police requests without being told they dont need to consent does not eliminate the consensual nature of that response. o Didnt matter that guards were stationed at the exists, because they were at work; wouldnt have left anyway. Can Failure To Cooperate Lead to Reasonable Suspicion To Justify a Stop? The failure to cooperate in a consensual encounter cannot be treated as suspicious conduct that would justify a Terry stop; otherwise, officers would have it both ways. Rule: The failure to cooperate in a consensual encounter cannot be treated as suspicious conduct that would justify a Terry stop; otherwise, officers would have it both ways. Street Encounters: When an officer in a car pulls up to question a person on the street without RS, is this a violation? o 1st Cir. says no sirens or flashing lights means there was no indication that D had to stop in his tracks; simply called out a question and did not constitute an attempt to restrain liberty. Court says free to walk away test must be read in conjunction with the Courts frequent admonitions that a seizure does not occur simply because a police officer approaches and individual and asks a few questions. Rather, the totality of the cirucmstances must objectively communicate that the officer is exercising his or her official authority to restrain the individuals liberty. I.e., were police acting coercively? Problem with the Freedom To Walk Away Test: Legal fiction re: consensual encounters Plays on citizens ignorance and sense of powerlessness in relation to officers Usually, attempts to assert rights produce additional incivility from officers

Bus Sweeps: United States v. Drayton = Question: When an officer is approaching bus passnegers to ask questions and request their consent to searches, must the officers advise passengers of their right not to cooperate? Officer was given to search Ds friends bag, and, after noticing his heavy clothing, requested to search his person. He was given consent, and felt hard packages concealed that he suspected were drugs. Ds friend was arrested, and D was asked if he would allow a search of his person; similar objects were found on him. Court rejects the argument that bas passengers do not feel free to disregard officerss requests to search absent some positive indication that consent could have been refused. Florida v. Bostwick = Court reversed Fl. S. Ct. decision holding that, due to the cramped confines aboard a bus, the act of questioning would deprive a person of his or her freedom of movement and thus constitue a seizure. o Court said confines of bus is the natural result of taking a bus, and says nothing about whether officers behavior was coercive. Holding: Police did not seize respondents; they gave passengesr no reason to believe that they were required to answer questions; did not brandish weapon; etc. o It is beyond question that had this encounter occurred on the street, it would be constitutional; the fact that it takes place on a bus does not transform it. o Cour has rejected claim that showing of badge is coercive. o Nor should wearing of uniforms and being armed affect this determination, since these are often required on the job. Court rejects Ds argument that no reasonable person would feel free to terminate the encounter after his companion had been arrested. o Search of luggage and person was voluntary. When citizen tells police theyre OK with it, and police act in reliance on that, it dispels inferences of coercion. Dissent: There was no reason to believe that the driver would return and the trip resume until the police were satisfied. Rule: When an officer boards a bus to ask passengers questions and request their consent to searches, this does not constitute a seizure unless they give passengers reason to believe they are required to answer questions. Officers are not required to advise passengers of their right not to cooperate. (US v. Drayton) State of Mind Required for a Stop: Brower v. County of Inyo = Question: Must an officer have a certain state of mind in order to seize a person? Officers set up a blind roadblock to stop a fleeing suspect, but the suspect was not able to stop beforehand an died.

Court held that an illegal seizure, by the roadblock, had occurred. Rule: A 4A does not occure whenever this is a governmentally caused termination of an individuals freedom of movement, nor even whnever there is a governmentally desired termination of an individuals freedom of movement, but only when there is a governmental termination of freedom of movement through means intentionally applied. o Because the officers placed the roadblock there with an intent to stop the suspected, and he was in fact stopped, he as seized intentionally.

Rule: A stop occurs only when there is a governmentally cause termination of freedom of movement through means intentionally applied. (Brower v. County of Inyo) Brendlin v. California = Court rejected the argument that evidence found on passenger was not a seizure because the intent of the police was to stop the driver. Court said the officer intended to car, so a stop occurred with respect to everyone in a car. Rule: When an officer stops a car, a stop occurs with respect to everyone in the car, not just the driver. (Brendlin v. California) The Suspect Who Does Not Submit: California v. Hodari D. = Court considered applicability of Mendhenhall test to situations in which suspect refuses to submit to a show of authority. Officer chased a youth, who argues that the pursuit was a seizure because there was no cause for it. Court divides seizures into two types: o Where officer has physically touched the citizen; and o Where officer has ued a non-physical show of authority. For the latter category (under which pursuit falls), a seizure does not occur until the subject yields. Rule: Where an officer engages in a non-physical show of authority, it must be such that a reasonable person would not feel free to leave and the citizen must actually submit. o Compare to physical touching or grasping, which, if intentional, is always a seizure. Free to leave is necessary, but not sufficient, for determining whether a seizure ocurred. Rule: Where an officer engages in a nonphysical show of authority (such as pursuit), a stop occurs only if a reasonable person would not feel free to leave and the citizen actually submits to that demonstration of authority. (California v. Hodari D.) When Does Submission Occur? United States v. Lender (4th Cir.) = Momentary halt on the sidewalk with his back to officers did not consistute a yielding to their authority.

o Defendant asks us to characterize as capitulation conduct that is fully consisten with preparation to whirl and shoot the offciers. He also picked the gun up after it fell, which does not indicate capitulation (should have stood still). 3. Reasonable Suspicion Grounds for a Stop: Reasonable Suspicion (RS) RS is the degree of suspicion required to make a stop. As with PC, there are two separate questions re: RS. o Court must investigate basis of RS; and o Court must evaluate whether that information is sufficiently suspicious to justfy a stop. Rule: An officer must have RS to make a stop. A. Source of Information: Rule: An informants tip can be credited toward RS. (Adams v. Williams) Anonymous Tips: Alabama v. White = Court held that an anonymous informants tip that was significantly corroborated by a police officers investigation provided RS for a stop. Officer received anonymous tip that D would be leaving a certain apartment in a certain car with a tailright broken, and would be driving to a motel with a case containing cocaine. Officers saw him enter apartment and saw car; they stopped him before he got to the motel, and consented to a search of the case. RS came from tip and officers corroboration. Court said the anonymous tip alone did not provide RS, however, because it failed to show that the informant was reliable and gave no indication of their basis for this conclusion. Corroboration doesnt have to be as substantial as it does for PC, because RS is a less demanding standard. o Information supporting it can be both different in quantity and content, and even elss reliable. o Ability to predict future behavior was important because it demonstrated inside information, a special familiaritywith the Ds affairs. o General public would have had no way of knowing this. Only a small number of people would know where he was driving. Rule: An anonymous informants tip that was significantly corroborated by a police officers investigationfor example, by accurately predicting future innocent activity can provide the RS necessary for a stop. (Alabama v. White)

Note: Informants accurate prediction of future innocent activity was sufficient for RS.

Anonymous Tips Concerning Gun Possession: Florida v. JL = Question: Whether an anonymous tip that a person is carrying a gun is, without more, sufficient to justify a police officers stop and frisk. (A: No) Facts: Anonymous caller reported to police that D was carrying a gun; apart from the tip, the officers had no reason to suspect D of illegal conduct. They couldnt see the gun, and D made no threatening or otherwise unusual movements. Officers suspicion had no basis in their own observation but came solely from a call made from an unknown location by an unknown caller. So the issue is whether the tip was sufficiently corroborated. o Unline in White, this tip had no predictive information. All they had to go on was the bare report of an unkown, unaccountable information who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about the D. o It was not sufficient that the tip identified a young black male wearing a plaid shirt at a bus stop; since an accurate description of that could have been given by anyone in the general public. Court rejects argument that there should be a firearm exception to Terry. Too much danger of harassment; slippery slope with drugs. Court would not speculate about circumstances like anonymous tips re: bombs or or anon tips with respect to ares of diminished expectation of privacy, such as airports and schools. Kennedys oncurrence: Many indicia of reliability re: anon tips that Court has yet to discuss. Rule: An anonymous tip that a person is carrying a gun is, without more, not sufficient to justify a police officers stop and frisk. (Florida v. JL) JL and a Tip About Reckless Driving: Can an officer stop a car after receiving a tip about reckless driving if they observe the car and its not, at that point, driving recklessless? 8th Cir said yes, because you dont have the same options w/r/t cars as you do with people (can observe, can initiate consensual encounter). Reckless driver is extremely mobile, and potentially highly dangerous, not unlike a bomb. JL and a Tip About Domestic Violence: For similar reasons, lower courts have found tips by anonymous informants about domestic violence and related emergencies sufficient for a stop. o 7th Cir. said theres an exception rooted in the special reliability inherent in reports of ongoing emergencies.

JL and Anonymity: Court distinguishes between known informants and anonymous ones, but anonymous is often up for debate. o Someone who speaks face-to-face, but gives no name and does not wait around. o Reliability of these tips should be considered in light of all relevant circumstances. o An unnamed individual who divulges enough distinguishing characteristics to limit his possible identity to only a handful of people may be nameless, but he is capable of being identified. B. Quantum of Suspicion: United States v. Cortez = Court set forth the test for determining whether RS exists in any given set of circumstances. Totality of circumstances; Based on whole picture, the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity; o Particularized suspicion has two elements: Assessment must be based upon all circumstances, including objective observations, information from police reports, and considerations of the modes or patterns of operation of certain kidns of lawbreakers. Concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Rule: To determine whether RS exists in any given set of circumstances, courts ask: given the totality of the circumstances; did the detaining officers have a particularized and objective basis for suspecting the particular person stopped of criminal activity? (United States v. Cortez)

Comparison to PC: Court will look at facts; defer to expertise of officers; consider totality of circumstances (cumulative things). Most important difference between RS and PC is that RS is a less demanding standard of proof; a stop is permissible upon something less than PC. o RS is a fair possibility of criminal activity, while PC is a fair probability of PC. Rule: RS is a fair possibility of criminal activity; PC is a fair probability of a crime. Assessment of Probabilities: United States v. Arvizu = Facts: Officers had set up checkpoint so that smugglers trying to circumvent it only had few options, which were unpaved backroads that led essentially nowhere. o A car triggers the sensors, and officer goes out to look. Sees Ds car, which is a minivan, which is common for smugglers to use. Drivers behavior was odd; slowed down, but tried to pretend he did not see the cop. o Cop learned that the car was registered to an address four blocks north of the border. He stopped the car, and D consented to a search. Found lots of drugs. Court says Ninth Circuit was wrong to consider factors in isolation from each other; didnt matter that, by itself, each factor was reasily susceptible to an innocent explanation. Holding: Officer had RS. Examples of RS: 10th Cir. case where totality of the circumstances were: o Ryder truck unaccompanied by another vehicle towed or driving in tangem; o On suspicious route; o Reasonably near border; o Known smuggling corridor which bypassed checkpoints; o Notice agitation; o Immediate slowing down; o Drove in a stiff manner. On the whole, established RS. 1st Cir: While its possible to hypothesize some innocent explanation, the test is RS of criminal activity, not whether the facts can be construed as innocent. Examples of RS Lacking: Hispanic man driving cautiously who frequently glanced back at officers in his mirror was not sufficient.

Reasonable Suspicion of a Completed Crime: United States v. Hensley = Can a Terry stop be made on the basis of RS that the suspect has already committed a crime, rather than RS that the suspect is commiting a crime/about to commit a crime? Court held that Terry was not confined to prospective crimes; could also be exercised to investigate completed crimes. o Officer must have a RSthat a person they encounter was involved in or is wanted in connection with a completed felony. Rule: Terry stops are not limited to prospective crimes; officers are allowed to stop a person on the basis of RS that that person has already committed a felony. (United States v. Hensley) Relevance of the Race of the Suspect: Concerns that an overly broad test of RS could result in a dragnet for certain races When the question is whether a suspect sufficiently matches the description of a perpetrator of a completed crime, the suspects race must obviously be considered relevant. o More difficult is when an officer sees someone of a certain race in an area they are not usually found, e.g, black man in a predominantly white neighborhood o Equally difficult are questions that arise when officers argue that certain crimes are more commonly committed by certain races. Minn. court rejected RS premised on a white man in a certain neighborhood because the officers suspicion essentially boiled down to: White males from the suburbs would only been in this area for no good. Most lower courts have held that while race cannot be the only factor supporting a stop, it can be considered together with other suspicious factors. Rule: Most lower courts have held that while race cannot be the only factor supporting a stop, it can be considered together with other suspicious factors. Use of Profiles: A profile is a list of characteristics compiled by a law enforcement agency, which have been found through experience to be common characteristics of those engaged in a certain type of criminal activity. o E.g., drug courier profile, gang member profile Court has adopted the view that the presence or absence of a particular characteristic is of no legal significance; a match does not automatically establish RS. o A court sitting to determine the existence of RS must require the agenct to articulate the factors leading to that conclusion, but the fact that these factors may be set forth in a profile does not somehow detract from their evidentiary signficiance as seen by a trained agent.

Overbroad Profile Factors: Some profile factors are far too broad to support RS. o E.g., driving through Arkansas in a car from CA (suspicious because CA is a source state for srudgs) Whether an officer can use an overbroad profile factor in deciding whether to stop someone (they can) is a different question than whether they can justify it on that basis (they cannot). Reasonable Suspicion and Flight from Police: Illinois v. Wardlow = Court held that officers had RS when D fled upon seeing police vehicles converage on a high crime area. Court said that, while an individuals presence in an area of expected criminal activity, standing alone is not sufficient, officers are not required the ignore the relevant characteristics of a location. Also, it wasnt just his presence, but his unprovoked flight. Unprovoked flight is more than a refusal to cooperate; doesnt matter that flight could be susceptible to an innocent explanation. Rule: Officers have RS when a person flees upon seeing police vehicles converage on a high crime area; however, an individuals presence in an area of expected criminal activity, standing alone, is not sufficient for RS. (Illinois v. Wardlow) 4. Limited Searches for Police Protection Under the Terry Doctrine (261-69) Terry holds that an officer can frisk a suspect and pull out objects found on him if there is RS to believe that the search is necessary to protect the officer from bodily harm during the course of the stop. o Concerns about officers using Terry frisk doctrine as a pretext to search for evidence Rule: On officer can frisk a suspect and pull out objects found on him if there is RS to believe that the search is necessary to protect the officer from bodily harm during the course of the stop. (Terry)

Frisk Cannot Be Used To Search for Evidence: Minnesota v. Dickerson = Court reaffirmed principle that frisks are justified only for protective purposes and that a search for evidence is not permitted. Officer had determined than an object was not a weapon, but nonetheless continued to squeeze and prod the object. Officers continued exploration of the item after he concluded it was not a weapon was unrelated to Terrys sole justification. Rule: A Terry frisk cannot be used to search for evidence; thus, if an officers exploration of an item continues after he concludes it was not a weapon, this is not justified by Terry. (Minnesota v. Dickerson) Suspicion Required To Support the Right to Frisk: NY Ct. of Appeals A frisk requires reliable knowledge of facts providing reasonable basis for suspecting that the individual to be subjected to that intrusion is armed and may be dangerous. o Factors that will give rise to this include refusal to answer inquiries about weapons, suspicious bulges in clothing, furtive motvements, darkness, backing away (to draw weapon) RS to conduct a frisk will depend in part on the nature of the crime for which the citizen is suspected. o If there is RS to believe that a person is going to commit a crime of violence with a weapon, there will automatically be RS to frisk that person o If the citizen is suspected of a financial crime, RS to frisk is less likely to be found. Rule: Factors that will give rise to RS to conduct a Terry frisk include refusal to answer inquiries about weapons, suspicious bulges in clothing, furtive motvements, darkness, backing away (to draw weapon). Rule: RS to conduct a frisk will depend in part on the nature of the crime for which the citizen is suspected. If there is RS to believe the person will commit a violent felony, there will automatically be RS to frisk; if the officer suspects the person of a financial crime, RS to frisk is unlikely.

Protective Searches Beyond the Suspects Person: Michigan v. Long = Court held that power to search under Terry can extend to protective examinations of areas beyond the person of the suspect. Terry permits a limited examination of an area from which a person, who police reasonably believe is dangerous, might gain control of a weapon. Because the stop is only temporary, the suspect could gain access to the weapon and use it on the officers when the stop is completed. Rule: Terry permits a limited examination of an area from which a person, who police reasonably believe is dangerous, might gain control of a weapon; officer can conduct a protective search of this area. (Michigan v. Long) Applying Michigan v. Long: Unclear whether there is a per se rule that a search of a passenger compartment for weapons can be conducted upon reasonable suspicion to believe the driver is a drug dealer, because drugs and weapons go hand in hand. Protective Searches of Persons Other than the Suspect: Ybarra v. Illinois = Court refused to uphold the frisk of a patron of a bar who happened to be present when the police arrived to conduct a search of the bar pursuant to a valid search warrant. His mere presence was not enough to provide a reasonable believe that he posed a risk of harm to the officers. Rule: The mere presence of a person on the premises where police are executing a search warrant does not provide RS to frisk that person, without further indication that the person poses a risk of harm to the officers. (Ybarra v. Illinois) Inspecting Objects During the Course of a Protective Frisk: Rule: Even if an officer feels an object on a person, he cannot pull it out and inspect it unless it is reasonably likely to be a weapon. (Dickerson) But almost all hard objects could be weapons. Protective Sweeps: Maryland v. Buie = Court considered legality of a protective sweep, a quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or others. At time of sweep, officers had RS to believe that a dangerous person (like an associate) might be hiding on the premises Court rejected Ds argument that a protective sweep requires PC. o Court found that a protective sweep could be justified by an officers RS that the area sweapt harbored an individual posing danger to the officer or others.

o These are relatively limited intrusions because its only a cursory inspection of spaces where a person might found; dont last long. o Again, justification here is safety, not evidence or destruction of evidence. Rule: Officers may conduct a protective sweep, incident to arrest, upon RS that the area swept harbors an individual posing danger to the officer or others. (Maryland v. Buie) Protective Sweep Other Than During an Arrest: Courts have held that the self-protection rationale behind Buie and Terry permits a protective sweep even when no arrest is involved, as long as the officers have RS to believe that a person in the are can obtain access to a weapon and use it on the officers, the offciers are permitted to conduct a protective sweep for weapons. Rule: Lower courts have held that the self-protection rationale behind Buie and Terry permits a protective sweep even when no arrest is involved, as long as the officers have RS to believe that a person in the area can obtain access to a weapon and might use it on them. 5. Brief and Limited Detentions: The Line Between Stop and Arrest Terry allows a stop on less than PC because a stop is less intrusive than an arrest. Its difficult to find the line between. Possible differences between an arrest and a stop: o Officers forces the suspect to move to a detention area o Officers draw their guns or use handcuffs o Length A. Persons (269-79) Forced Movement of the Suspect to a Custodial Area: Florida v. Royer = D was taken from the public area of an airport into a small room, where he consented to a search of his luggage. Court held that consent was invalid because it was obtained as the result of an arrest without PC. o At the time he produced the key, his detention was a serious enough intrusion to require PC. Court held that an arrest had occurred when he was forcibly moved to a custodial atmosphere for purposes of extracting consent to search. What began as a consensual inquiry in a public place escalated into an investigative procedure in a police interrogation room. The agents never informed him that he was free to board his plan if he so chose, and he reasonably believed that he was being detained.

Although there are reasons of safety and security that would justify moving a suspect from one location to another during an investigatory detention, there is no indiciation in this case that thats why the officers transferred the site of the encounter.

Rule: PC is required when an officer seeks to move a suspect out of public space in order to further the investigation or to place more pressure on the suspect. (Florida v. Royer) Forced Movement for Identification Purposes: Many courts have found that if RS exists, it is permissible to transport the suspect a short distance for purposes of identification by witnesses. o E.g., coercive movement to the crime scene Investigative Techniques That Are Permissible Within the Confines of a Terry Stop: Because the purpose of a Terry stop is to permit investigation of the facts on which RS is based, some preliminary investigation designed to clear up or develop RS is permissible within the confines of a stop. o E.g, investigation of the suspects identity, vehicle registration check, license check, or a computer search for outstanding warrants. Criminalizing the Refusal To Provide Identification During a Terry Stop: Hiibel v. Sixth Judicial District Court of Nevada = D was stopped on RS of being involved in a domestic assault, and refused to provide ID. o Argued that the state had no power to criminalize his refusal to provide ID during the stop. Court upheld his conviction and stressed that officer has a right to demand ID as part of an investigation during a Terry stop o Questions concerning a suspects ID are a routine and accepted part of many Terry stops; serves important government interests Terry thus permits a State to quire a suspect to disclose his name in the course of that stop Reasonableness of this seizure is determined by balancing The request for ID does not alter the nature of the stop itself; does not change duration or location Rule: An officer has a right to deman ID as part of his investigation during a Terry stop. (Hiibel v. Sixth Judicial District Court of Nevada) Overly Intrusive Investigation Techniques: Some investigative techniques are themselves so intrusive or extensive as to require PC; the most obvious example is a search for evidence. o Some courts have held that PC is required before a suspect can be subjected to a series of demanding physical tests to determine whether he is intoxicated.

Rule: Some courts have held that PC is required before a suspect can be subjected to a series of demanding physical tests in an effort to obtain evidence of intoxication. Investigation of Matters Other Than the Reasonable Suspicion That Supported the Stop: Stop After a Stop A Terry stop must end when the reason for the stop has come to end. o I.e., if the RS has been cleared up or the person has been processed, the suspect must be released. Rule: A Terry stop must end when the reason for the stop has come to end; however, if in the course of a stop to investigate crime A, the officer obtains RS to investigate crime B, then the detention can be extended. Reasonable suspicion as to Another Crime: If, in the course of a stop to investigate crime A, the officer obtains RS to investigate crime B, then the detention can be extended to investgate crime B even though the initial justification for the sotp no longer exists. Consensual Encounters After a Stop Has Ended: If the suspect is simply asked about another crime while the initial stop is hending, there can be a permissible encounter after a stop. Ohio v. Robinette = D was legally stopped for speeding and given a verbal warning; when the officer returned the license, he said: One last question: You carrying any illegal contraband in your car? o D said no, and the officer asked if he could search the car. D consented. Court held that the officer did not have to tell him that he was free to leave in order to signal that the detention was over; Court said he voluntarily consented to the search. The test for whether the continuing discussion was a consensual encounter was based on a totality of the circumstances and not on any one factor. Rule: If the suspect is simply asked about another crime while the initial stop is hending, there can be a permissible encounter after a stop. The test for whether the continuing discussion is a consensual encounter is based on the totality of the circumstances. (Ohio v. Robinette)

Interrogation and Fingerprinting: Interrogation Beyond the Confines of Terry: Dunaway v. New York = Court distinguished Terry stops from cases in which the police detain a suspect for sustained interrogation. o Doesnt matter if detention is not deemed to be an arrest under state law; police cannot detain a suspect and transport him to the stationhouse for questioning without PC. Detention for custodial interrogation intrusdes severly on 4A interests as to trigger safeguards against arrests. Rule: Police cannot detain a suspect and transport him to the stationhouse for questioning without PC, even if this detention is not considered an arrest under state law. (Dunaway v. New York) Fingerprinting: Davis v. Mississippi = Court held that roundup of 25 youths for questioning and fingerprinting violated the 4A. But fingerprinting is less serious than other searches, since it can be done at a convenient time and does not create opportunities for harassment. o One argument is that this is simply a means of investigation of identification. Hayes v. Florida = Court rejected that argument; found that officers who took D to the stationhouse without consent to be fingerprinted amounted to an arrest. When police forcibly remove a person to the stationhouse, they are making a seizure that must be considered an arrest. o A brief detention in the field for fingerprinting might be different, as long as there is RS. Rule: When police forcibly remove a person to the stationhouse, they are making a seizure that must be considered an arrest. However, a brief detention in the field for fingerprinting might be different, as long as there is RS. (Hayes v. Florida)

Time Limits on Stops: United States v. Sharpe = Court rejected an absolute time limit for Terry stops. Total time between initial stop of the D and his arrest was between 30-40 mins. D argued that by the time of the search, D had been detained beyond the time limit of a Terry stop. Court held that the detention did not exceed the tim limits of a permissible Terry stop. At some point, an investigative stop can be longer be justified as anything other than an arrest. Its just not clear when that point occurs. Court said its appropriate to examine whether the police diligently pursued a means of investigation that likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the D. o Here, there was no delay that was unnecessary to the legitimate investigation of the officers. Rule: After a certain amount of time has passed, an investigative stop can no longer be justified as anything other than an arrest. Courts must examine whether, during the time it was necessary to detain the D, the police diligently pursued a means of investigation that likely to confirm or dispel their suspicions quickly. (United States v. Sharpe)

Questions after Sharpe: What kind of conduct (if any) will be considered impermissible delay rather than diligent investigation? Show of Force During a Terry Stop: Courts have routinely upheld the use of handcuffs and guns during a Terry stop where there is RS to believe that they are necessary to protect the officer from harm during the stop. o Because safety may require the police to freeze temporarily a potentially dangerous situation, both of these may be part of a reasonable Terry stop. Rule: Courts have routinely upheld shows of force, e.g., the use of handcuffs or guns, during a Terry stop as long as there is RS to believe that they are necessary to protect the officer from harm during the stop. B. Property (279-82) Terry has been applied to seizures of property as well. United States v. Leeuwen = Court held that some detentions of property could occur upon RS. Officers detained a package for more than a day while they sought to obtain PC and a warrant. At some point, these can become unreasonable, but here the investigation was conducted promptly and diligently. It was better to seize the mail then rather than try to track it later. Privacy interest was not disturbed or invaded until after the approval of the magistrate. Rule: Under Terry, officers may detain property temporarily upon RS; at some point, these detentions become unreasonable. Courts will look to whether investigation was conduct promptly and diligently. (United States v. Leeuwen) Unreasonably Lengthy Detention of Property: United States v. Place = Court maintained it is often necessary to seize property upon RS while an investigation continues. o However, if a person is travelling with that property, a seizure of it intrudes on both the suspects possessory interest and his liberty interest in proceeding with his itinerary. Court held that officers whod detained Places luggage for 90 minutes needed more than RS; PC was required because of the delay to Place. o The delay was caused by lack of diligence on the part of the officers, who could have shortened that delay considerably.

o Violation was exacerbated by the failure of the agents to inform the respondent of the place to which they were transporting his luggage, length of time he might be dispossessed, and of what arrangements would be made for return of the luggage. Note: Court is more concerned with detention of property intrudes on the suspects liberty interest in proceeding with his itinerary, daily activities, etc. (United States v. Place) Questions After Place: Its not clear what matters more; length of time or diligence in pursuing the investigation. Seizure of Property With No Deprivation of a Liberty Interest: United States v. LaFrance (1st. Cir) = Police had RS to believe that a FedEx packaged contained drugs; it was guaranteed for delivery by noon that day. o There was a dog sniff at 1:15 pm and it was over in an hour. Court said that once noon had arrived, the constitutional chemistry was altered, but that detention was reasonable: for a limited time and diliegent investigation. Court did not think his liberty interest was impared by the detention of the package. 6. Terry and Searches for Law Enforcement (as Distinct from Safety) Purposes (28288) The justification for Terry is self-protection. Arizona v. Hicks = Court rejected the argument that a search for evidenceeven a limited, cursory inspectioncould be justified upon RS. PC is required, even though its minimally intrusive. A search is a search, even if it discloses very little. Rule: A search for evidenceno matter how cursory or limitedcannot be justified upon only RS. (Arizona v. Hicks) Questions After Hicks: Lower courts seem divided over whether Hicks says there is bright-line rule against searches supported by only RS, no matter how minimally intrusive. o The court that hasnt held this is the 7th, which used a balancing test. Application of the Terry Reasonableness Analysis Outside the Stop and Frisk Context: United States v. Knights Court applied the Terry analysis to a full-blown search of the residence of a probationer.

D was placed on probation, and the order include the condition that he submit his person and residence to a search at anytime, with or without a search warrant, arrest warrant, or reasonable cause. Question: Whether a search pursuant to this conduction and supported by RS satisfies the 4A. Officers had RS, but not PC, to believe that Knights was involved in a crime that had been committed and that evidence would be found in the home. Holding: Search was reasonable under general 4A approach of examining the totality of circumstances, with the probation search condition being a salient circumstance. Inherent in the nature of probation is a lack of the same liberties that other citizens enjoy; courts have the right to impose reasonable conditions on these.

Rule: Warrantless searches authorized by a condition of probation and supported by RS are reasonable within the meaning of the 4A. (United States v. Knights)

Questions About Knight: Does the Court mean that the reasonableness of every search is based on a balance of the needs of the state and the privacy interests of the individual? o Probably fact-specific. Suspicionless Searches of Parolees Found Reasonable: Samson v. California = Question: Whether a condition of a parolees release can so diminish or eliminate his reasonable expectation of privacy that a suspicionless search would be permissible. Court held that the search was reasonable. Parolees expectation of privacy is substantially diminished because his very liberty is conditional. Court did not address whether the condition was justified as a special need. Rule: A condition of parole that requires a suspect to be subject to suspicionless searches is reasonable because the parolees expectation of privacy is substantially diminished. (Samson v. California) Can the Knights/Samson Balancing Test Be Extended Beyond Probationers and Parolees? Clearly, these cases could be read broadly enough to allow searches for evidence on less than PC whenever the state interest supporting the search outweights the individuals interest. o Thankfully, lower courts have generally read these cases narrowly, limiting them to searches of probationers and parolees. G. Reasonableness Standards Reached by Balancing Interests 1. Administrative Searches (380-95) Court applies reasonableness clause to searches conducted for purposes other than traditional criminal law enforcement, reasoning that the warrant requirement is not well-suited to searches for purposes besides law enforcement, e.g., school discipline, public safety, and administrate eefficiency. In these cases, Court balances interest; weighs the need for a particular search or seizure against the degree of invasion upon personal rights involved Rule: Reasonableness clause, rather than the warrant requirement, governs searches conducted for purposes other than traditional criminal law enforcement because warrants are not well-suited to searches for purposes besides law enforcement, e.g., school discipline, public safety, and administrate eefficiency.

Safety Inspections of Homes: Camara v. Municipal Court = Homeowner argued she had a right to refuse a warrantless search by health inspector. Court held that 4A applied, but that government safety inspectors were not required to have PC to believe that a particular dwelling was in violation of the code. Rule: A warrant is required for an administrative safety inspection of a home, but the warrant only needs to be based on a finding that the search is in compliance with a reasonable administratve scheme. o And theres an exception to this warrant requirement for emergency situations. Rule: A warrant is required for an administrative safety inspection of a home, but the warrant only needs to be based on a finding that the search is in compliance with a reasonable administratve scheme. Put another way, these warrants do not require PC. (Camara v. Municipal Court)

The Assessment of Cause for a Safety Inspection: Magistrate issuing these kinds of warrants is engaged in a very differet inquiry A home inspection can be based on factors like passage of time, nature of the building, and part of an area-wide inspection This official only decides whether an established inspection policy exists and whether the inspection for which a warrant is sought fits within that proagrm. Warrants Without Probable Cause? Court has distinguished Camara as an exception to the text of the 4A; however, the general rule is still warrants based on PC. Court refused to accept the solution of a warrant based on less than PC as a means of balancing state and individual interests in the law enforcement context. (See Griffin v. Wisconsin) Administrative Searches of Businesses: Administrative searches of business involve different issues from searches of residences. Some entries are not searches at all, i.e., if the area inspected is open to the general public. A administrative search of a business will also implicate more complex regulatory concerns (how business is conducted; not just safety). Businessperson may have a diminished expectation of privacy given the nature of the business conducted. o That said, there is also a greater concern about the risk of arbitrary use of official power to conduct a regulatory search. Rule: An entry to search a business by government officials is not a search at all if the area inspected is open to the general public. New York v. Burger = Question: Whether the warrantless search of an automobile junkyard, conducted pursuant to a statute, falls within the exception to the warrant requirement for administrative inspections of pervasively regulated industries. 4A is applicable to commercial premises as well as private homes because a business owner has an expectation of privacy that society is prepared to consider reasonable. o But this expectation is different from and less than that for an individuals home. And it is particularly attenuated in commercial property employed in a closely regulated industry. When a dealer chooses to engage in a pervasively regulated business and to accept a federal license, he assums the risk of these inspections. As in other situations of special need, warrantless inspection of commercial premises may well be reasonable within the meaning of 4A. These will only be deemed reasonable if three criteria are met: o There must be a substantial govt interest behind the regulatory scheme;

o The inspection must be necessary to further that scheme; and o The statutes inspection program must provide a constitutionally adequate substitute for a warrant. In other words, it must advise the owner of the commercial premises that the search is being pursuant to the law and has a properly defined scope, and it must limit the discretion of inspecting officers. Law must be sufficiently comprehensive and defined that the owner cannot help but be aware that his property will be subjected to these inspections. Statute must also be carefully limited in time, place, and scope. In some cases, unannounced and frequent inspections will be essential, and the prerequisite of a warrant could easily frustrate that. In these cases, surprise is often crucial for detecting violations. Court rejected the argument that this regulatory scheme was pretextual and that the identity of the inspects (here, police officers) mattered. o A State can address a major social problem both by way of an administrative scheme and through penal sanctions. Court also rejected the argument that the scheme was unconstitutional because, in the course of enforcing it, an inspecting officer could discover evidence of crimes besides violations of the code. Doesnt matter that the inspectors were officers because resourcs are limited. As long as the regulatory scheme is properly administrative, thats fine. Dissent: o Fundamental defect with this administrative scheme is that circumvents the Fourth Amendment by authorizing searches intended solely to uncover evidence of criminal acts. o The inspection became a search of evidence of criminal acts when all possible administrative violations had been uncovered. o Majority implicitly holds that if an administrative scheme has cetain goals and if the search serves those goal, it may be upheld if no concrete administrative consequences could follow from that.

Rule: A warrantless administrative inspection of commercial premises is reasonable if: There must be a substantial govt interest behind the regulatory scheme; The inspection must be necessary to further that scheme; and The statutes inspection program must provide a constitutionally adequate substitute for a warrant, i.e., it must advise the owner of the commercial premises that the search is being pursuant to the law and has a properly defined scope, and it must limit the discretion of inspecting officers. (New York v. Burger)

Administrative Searches of Businesses After Burger: 9th Cir. held in one case that a Texas admin provision authorized officers to inspect any load of commodities being transported for hire over the highways of the state. Substitute for a Warrant: Regulatory regime must: o Advise the owner of the regulated business that the inspection is being made pursuant to law; o Impose some meaningful limitation of the officers discretion to search. In Burger, that limit was that the search had to occur during daytime. Even if the statute is constitutional, the search conducted under its authority can be unconstitutional if it clearly goes beyond the statutory limitations that substitute for a warrant. The Element of Surprise: Dont want to deprive inspectors of the element of surprise necessary to further regulatory interests; thats why no warrant is required. But this is kind of a false issue, since officers could aways get a warrant beforehand. Its really that courts dont want to burden officers with a warrant requirement because it might interfere with their ability to function (resources, too). Administrative Inspections by Law Enforcement Officers: Some courts have applied a stricter scrutiny to administrative searches that are conducted by law enforcement officials. Federal agents cant use a state regulatory inspection as a pretext for an investigative search, but this isnt as protective as it sounds. What it means is that an officer cant go to an inspector and ask them to do a certain search so they can ride along and participate in that search. 2. Border and Customs Searches (450-59) Border searches are usually justified on the grounds that they serve a special need beyond traditional law enforcement, i.e., protecting the countrys borders and preventing entrants from bringing anything harmful into the country. Warrantless Suspicionless Search of International Mail: United States v. Ramsey = Court found a warrantless, PC-less search of envelopes sent to the U.S. from Thailand reasonable under the border search doctrine. This right comes from common law right of sovereignt to protect itself. Court rejected the argument that the doctrine shouldnt apply because it was not carried across the border by a traveler. The mode of entry is not important.

Rule: Officers may conduct warrantless, suspicionless searches of international mails that crosses the border because these searches serve a special need beyond traditional law enforcement. (US v. Ramsey)

Routine Border Searches: 2d Cir. has held that routine border searches of the personal belongings and effects of entrants can be conducted without regard to PC or RS. But 1st Cir. says nonroutine searches are different because they are more intrusive. United States v. Flores-Montano = The reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person (dignity and privacy interests) do not carry over to vehicles. Govts interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Expectation of privacy is less at the border than it is in the interior. Court rejected Ds argument that disassembly of fuel tank risked property destruction, but has no support for this. Holding: The Governments authority to conduct suspicionless inspections at the border includes the authority to remove, disassemble, and reassemble a vehicles fuel tank. Rule: The governments authority to conduct suspicionless, warrantless inspections at the border includes the authority to remove, disassemble, and reassemble a vehicles fuel tank because the goernments interest in securing its borders is at its zenith. (US v. Flores-Montano) Notes: Lower courts have upheld suspicionless drilling into a vehicle and other forms of property destruction during border searches.

Searches of Persons at the Border: Whether a search of a person at the border is routine or nonroutine depends on their intrusiveness. A nonroutine search requires some level of suspicion, but a routine search requires none. Routine search is often just a search of personal belongs and effects and an outer jacket search; not body cavity searches or strip searches. Rule: A routine border search, which requires no suspicion, is often just a search of personal belongs and effects and an outer jacket search. A nonroutine search, which does require RS, is more intrusive, e.g., a strip search or a body cavity search. Search of Laptops, Video Cameras, Reading Materials, Etc at Border: Lower courts have held that laptops carried across the border can be subject to a full search of the hard drive without suspicion. o Argument is that these are no more intrusive than any other search of a persons effects. Does not implicate the First Amendment.

The Degree of Suspicion Required for a Nonroutine Border Intrusion: Because nonroutine border searches are more intrusive, suspicionless searches are unreasonable in this context. United States v. Montoya de Hernandez = Court held that the detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and his trip, reasonably suspect that the travelering is smuggling contraband. Court upheld a very long detention because such smuggling (here, she had swallowed balloons of heroin) cannot be detected in the amount of time in which other illegal activity can be. Standard of Proof Between PC and RS? Court rejected creation of a third standard of proof between the two. There are only two types of intrusions at the border: o A routine border intrusion that can be done without suspicion; and o A nonroutine border intrusion that requires RS. 3. Reasonableness Balancing Applied Across the Spectrum of Citizen-Government Relations a. Special Needs Searches (395-428) Searches and Seizures on the Basis of RS, not PC: Rule: Court performs a special-needs balancing analysis to determine the reasonableness of warrantless, suspicionless, civil-based searches. Court has used special needs balancing anaylsis to uphold civil-based searches without warrants or PC. New Jersey v. TLO = A school official searched the handbag of a student; she had RS, but not PC, to believe the student had cigarettes. Could not be justified under Terry (wasnt for protection) nor as a search for evidence (because no PC) Court upheld the search on the grounds that it effectuated special needs beyong ordinary criminal law enforcement, maintenance of the learning environment. Student had diminished expectation of privacy in that environment. However, the Court required individualized suspicion for this search. OConnor v. Ortega = Court upholds warrantless searches of the office of a government official.

Griffin v. Wisconsin = Court upholds warrantless search of the house of a probationer. Safford Unified School District v. Redding = Question: Whether a 13-yr olds 4A rights were violated when she was subjected to a search of her bra and underpants by school officials acting on RS that she had brought prescription drugs into school. Holding: Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, the search violated the Constitution. Facts: Principal instructed woman to take the girl to the nurses office and search her clothes for pills. The search involved exposure of her chest and pelvic area to some degree. TLO recognizes that school setting requires some modification, and thus, balancing of interests. School searches are permissible in scope when they are reasonable related to the objectives of the search and not excessively intrustive in light of the age and sex of the student and the nature of the infraction. The principal did have reason to connect the girl with the crowd that was responsible for the pill distribution, and this suspicion was enough to justify a search of her backpack and outer clothingbecause, if a student were carrying pills, thats where theyd be in all likelihood. Both subjective and reasonable societal expectations of personal privacy support the treatment of this strip-like search as categorically distinct from a search of outer clothing. Different than nakedness in other school contexts, like changing for gym; she was responding to an accusation reserved for suspected wrongdoiers. Here, the content of the suspicion failed to match the degree of intrusion. Prinicpal must have been aware of the limited threat posed by the drugs he was searching. o Nor did he have any reason to believe she was hiding the pills in her underwear. The categorically extreme intrusiveness of a search down the body of an adolescent requires suspicion that this search will pay off. However, school officials were entitled to qualified immunity because it was not year clearly established that such a search violated the 4A, since lower courts had reached divergent conclusions. Thomass dissent: Search did not violate 4A. American public school system needs tools to control drug use in the student population, and the Court is just interfering. Common law and in loco parentis dictate that this seach is reasonable. Rule: School searches are permissible in scope if they are reasonable related to the objectives of the search and not excessively intrustive in light of the age and sex of the student and the nature of the suspected infraction. (Safford Unified School District v. Redding)

Suspicionless Searches of Persons on the Basis of Special Needs Skinner v. Railway Labor Executives = Court upheld a program mandating drug tests for all railroad personnel involved in certain train accidents. Thus, it was suspicionless testing. Failing the test would result in loss of employment. The program was subject to 4A scrutiny, because it was essentially required by federal regulation. So it didnt matter that it was administrated by a private employer. Drug testing of urine is search within the meaning of the 4A because it can reveal private information and because the process of monitoring the employees urination implicates privacy interests. However, governments interest here presents special needs beyond normal law enforcement. No need for warrant because supervisors tasked with adminsrtation of the program were not investigating violations of the criminal law. Program was reasonable even thought it allows suspicionless search. o Where privacy interests implicated are minimal, and where an important governmental interest would be furthered by the intrusion, but would be placed in jeapordy by suspicion requirements Suspicionless drug testing provides a strong deterrent. States interest was strengthened by a document drug problem among railroad employees. No indication that this was pretextual. Rule: Government-sponsored program of warrantless, suspicionless drug-testing of railroad employees is reasonable because the governments interest presented a special need beyond normal law enforcement. (Skinner v. Railway Executives) Drug-Testing of Employees: National Treasury Employees v. Von Raab = Court upheld compelled urinalysis of certain Customs Service employees. There were made a condition of obtaining employement for three kinds of jobs. o Employee was allowed to produce sample privately, but there was aural monitoring. o Testing results could not be turned over to a criminal prosecutor without the employees consent. Court held that it serve special needs and after balancing state and individual interests, that a warrant was not required, because the event that triggered testing was the employees decision to apply. Thus, there was no factual question similar to PC for a magistrate to decide. Court said employees handling drugs and firearms had a diminished expectation of privacy because the position depended on their judgment and dexterity. Court emphasized that intrusion had been minimized as much as possible.

What If There Is No Record of Drug Abuse? In Von Raab, there was no documented drug problem among Customs employees. Court rejected the argument that suspicionless testing was unreasonable unless it could be justified as responsive to and effective against a documented drug problem. o Court reasoned that detecting drug impairment is very difficult, especially where its hard to subject employees to day-to-day scrutiny. Extraoridnary safety and national security hazards also justified this. Court said this was comparable to suscpionless searches at airports because the danger alone meets the test of reasonableness. Rule: Warrantless, suspicionless drug testing is not unreasonable simply because there was no document drug problem before the program is implemented. (National Treasury Employees v. Von Raab) Drug-Testing of Politicians: Chandler v. Miller = Georgia required candidates for state officers to certify that theyd taken a drug test and that the results were negative. Question: Whether that requirement, which is a suspicionless search, is justified by special needs? (A: No) o Lower court had reasoned that those vested with highest executive authority to make public policy must be persons attuned to dangers of drug use; used Von Raab to reject arguments that they need a documented drug problem among candidates. To be reasonable under 4A, a search must ordinarily be based on individualized suspicion of wrongdoing. o There are some exceptions to this rule based on special needs that are concerns other than crime detection. Special need for drug testing must be important enough to override the individuals acknowledged privacy interest and vital enough to supper the normal requirement of particularity. Its not enough that the unlawful drug use is incompatible with holding high state office. Notably lacking in the states argument is any indication of a concreate danger. Nothing in the records hints that the hazards the state describes are real and not simple hypothetical. Georgias program is not well designed to identify cadidates who violate any laws, nor is it a credible deterrent. Vob Raab was special because drug interdiction had become the agencys primary enforcement mission and the employees in question would have access to vast sources of valuable contraband. These officers ahd also been the targets of bribery by drug smugglers.

Von Raab is distinguishable because there, day-to-day scrutiny would have been impossible; but that kind of scrutiny is the norm when it comes to public office. If they were doing drugs, the media would probably detect it. The need here is symbolic, not special. Where the risk to public safety is substantial and real, blanket suspicionless searches calibtrated to the risk my be reasonable, but where, as in this case, public safety is not genuinely in jeopardy. o But where, as here, public safety is not genuinely in jeopardy, the 4A precludes suspicionless searches.

Rule: A state program requiring candidates for office to certify that theyd taken a drug test and that the results were negative is not justified by special needs. The special need for drug testing must be important enough to override the individuals privacy interest, but here, there was no real danger. The need was not special, but symbolic. (Chandler v. Miller)

Drug-Testing Cases After Chandler: In Chandler, Court held that people with minimal privacy interest could not be subject to drug-testing that was relatively non-intrustive. Drug-Testing of School Children: TLO does not foreclose the possibility that suspicionless searches of schoolchildren might be reasonable in certain circumstances. Board of Education of Pottawatomie County v. Earls = Board implemented a drug testing policy that requires all students who participate in competive extracurricular activities to submit to drug testing. o Only a condition of participation, and the urinalysis test is designed to detect only the use of illegal drugs. Holding: Because the policy reasonable serves the school districts interest in detecting and preventing drug use among its students, it does not violate 4A. Vernonia v. Acton = Court upheld the suspicionless drug testing of school atheletes. o Court said no warrant or finding of PC is necessary in the public school context because it would hamper school officials. o Court conducted a fact-specific balancing of the intrusion on the childrens 4A rights against the promotion of legitimate governmental interests. In criminal context, reasonableness requires a showing of PC, but this is not necessary for administrative searches where the government seeks to prevent the development of hazardous conditions. In certain limited cicursmtances, the Governments need to discover latent of hidden conditions is sufficiently compelling to justify the intrusion without any individualized suspicion. Reasonableness inquiry is different in school context. o Student has limited privacy interest in school environment; theyre routinely required to submit to physical exams and vaccines. o No distinction between nonathletic and athletic activities, and the expectation of privacy for those involved Degree of intrusion of urine testing depends on the manner in which the sample is obtained; in this case, faculty monitor waits outside the closed restroom and listens. This method is thus a negligible intrusion. Tests would be confidential and separate form educational records; released only on need-to-know basis. Tests are not turned over to any law enforcement authority, nor do the resultslead to the imposition of discripline or have any academic consequences. Nationwide drug epidemic makes the war against drugs a pressing concern in every school. Court has never required a particular or pervasive drug problem before allowing these tests.

A program of individualized suspicion might unfarily target members of unpopular groups, resulting in lawsuits that would chill enforcement of the program and render it ineffective. Breyers concurrence: Its important that the school board provided an opportunity for the airing of these differences at public meetings designed to give the entire community the opportunity to participate in developing this policy. o A requirement of individualized suspicion might lead schools to push that boundary, or could stigmatize others. Dissent: Vernonia instituted its policy in response to a bad situation.

Questions After Earls: Earls permits a search of virtually every student in the school without any suspicion at all. Drug-Testing for Special Needs, or for Criminal Law Enforcement?: Ferguson v. City of Charleston = Question: Whether a state hospitals performance of a diagnostic test to obtain evidence of a patients criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented. (A: Yes) Facts: Staff members at hospital were concerned about the use of cocaine by patients receiving prenatal treatment. The hospital began to orger drug screens to be performed on urine samples of suspected patients. When the patient tested position, she was reffered to the county substance abuse commission. o A nurse at the hospital had the idea to offer their cooperation with prosecution of such mothers, and a more formal policy was organized. There was a chain of custody protocol (presumably to make sure the samples could be introduced as evidence in a criminal proceeding); included police procedure. o Policy did not include prenatal care or treatment for newborns. Discussion: o Critical fact here is that the special need is not divorced from the States general interest in law enforcement. In this case, that was a central feature of the policy. o Court rejects argument that this is only about the health of the mother and her child. Continuing focus of this program was on the arrest and prosecution of drug-abusing mothers. o Moreover, police and prosecutors were extensively involved in the day-to-day administration of this policy. o The immediate objective of these searches was to generate evidence for law enforcement purposes. It does not matter that the threat of law enforcement was intended as a means to an end. Law enforcement always seraves some broader social purpose, but we cant allow any nonconsenaul suspicionless search to be immunized under the special needs doctrine in this manner.

Rule: A hospitals performance of a diagnostic test to obtain evidence of a patients criminal conduct for law enforcement purposes was an unreasonable search because the policys objective was not provide treatment, but punishment. (Ferguson v. City of Charleston) Suspicionless Safety Searches in Airports, Subways, Public Buildings, etc: Searches of persons and carry-on luggage at airport found reasaonable because the states interest in safety is very high; that interest could not be accommodated by limiting searches to those who present RS of a safety risk; searches are minimally intrusive; because all travelers are searched (minimizing stigma); travelers known in advance; and travelers can alsways choose some other form of travel. o More intrusive airport searches (like the stop and frisk) are done without particularized suspicion; searches are either on a random basis or caused by some factual trigger (like purchasing a one-way ticket. o Lower courts have routinely held that these qualified as a special needs search. Rule: Searches of persons and carry-on luggage at airport are reasonable because the states interest in safety is very high; this interest cannot be accommodated by limiting searches to those who present RS of a safety risk; searches are minimally intrusive; all travelers are searched (minimizing stigma); travelers know in advance; and travelers can alsways choose some other form of travel. United States v. Marquez (9th Cir.) = o An airport screening search is reasonable if It is no more extensive or intensive than necessary to detect weapons or explosives; It is confined in good faith to that purpose; and Passengers may avoid the search by electing not to fly. Randomness actually furthers the goal of these searches. United States v. Aukai (9th Cir.) = Constitutionality of an airport screening search does not depend on consent; passengers cannot revoke consent, since this would give terrorists opportunities to attempt to penetrate airport security. All that is required in the way of voluntariness is the passengers election to attempt entry into the secure area.

b. Computer Search of Public Employee: City of Ontario v. Quon = - Question: Whether a government employer has the right to read text messages sent and received on a pager the employer owned and issued to an employee. - Facts: D was given a pager and allotted a limited number of characters per month. City announced a policy specifying that the city had the right to monitor and log all network activity and that users should have no expectation of privacy. D

signed a statement to this effect, but the policy did not, on its face, apply to the text messages. However, city makes clear it will treat messages by the policys terms. Discussion: o 4As protections extend beyond the sphere of criminal investigations. o Individuals do not lose 4A rights simply because they work for the government rather than a private employer. o Two possible approaches: When an employee has a reasonable expectation of privacy, and the employer intrusion was for noninvestigatory, work-related purposes or investigations of work-related misconduct, use reasonableness. Scalia: Government searches to retrieve work-related materials or investigations of employer misconduct, if reasonable and normal in the private-employer context, are reasonable in this context as well. o Court assumes, arguendo, that D had a legitimate expectation of privacy and that governments conduct was a search. o Special needs of the workplace balancing test. o The review of his messages was not excessively intrusive, especially given the efforts to redact off-duty messages. Dissent: o Application of good-faith doctrine is incompatible with retroactivity doctrine; Court creates an arbitrary distinction between retroactivity and remedy.

Rule: A government employers decision to intrude on an employees legitimate expectation for noninvestigatory, work-related purposes or investigations of work-related misconduct will be evaluated using the balancing test for special needs searches. (Ontario v. Quon) c. Roadblocks and Reasonable Seizures (428-41) Individual Stops Without Suspicion: Delaware v. Prouse = Court held that an officer could not, in the absence of RS, stop an automobile and detain the driver in order to check his license and registration. Court reasoned that there are other, better ways to further the states interest in vehicle registration and safety. Rule: An officer cannot, in the absence of RS, stop an automobile and detain the driver in order to check his license and registration. (Delaware v. Prouse) Permanent Checkpoints: United States v. Martinez-Fuerte = Court approved suspicionless stops at permanent checkpoints removed from the border. Checkpoint was not surprising; intrusion was minimal.

Rule: Officers can conduct suspicionless stops at permanent checkpoints. (United States v. Martinez-Fuerte) Temporary Checkpoints (for DUI check): Michigan Department of State Police v. Sitz = Court upheld suspicionless stops at temporary sobriety checkpoints. Checkpoints were set up according to a list of considerations; all motorsists were stopped. Plaintiffs argued that there was no special need beyond law enforcement, but Court reasoned that no need beyond criminal law enforcement was required to support reasonableness balancing for stops at fixed checkpoints. o Thus, Court relied on Terry, not special needs cases. Dissent: Says that temporary checkpoints provided more police discretion re: timing and placement, and it is more intrusive because its surprising. Rule: Terry allows officers to conduct suspicionless stops at temporary sobriety checkpoints. (Michigan Department of State Police v. Sitz) Drug Checkpoints: City of Indianapolis v. Edmond = Court considered the constitutionality of a highway checkpoint program whose primary purpose is the discovery of illegal narcotics. Holding: Because the primary purpose of this checkpoint program is ultimately indistinguishable from the general interest in crime control, the checkpoints violate the 4A. Facts: At the stop, police look in the car from the outside; narcotics dog walks around outside. Policy said officers could conduct a search only if they had consent or particularized suspiscion. Average car stop was 2-3 minutes. Discussion: o Search/seizure is usually unreasonable without particularized suspicion, but there are exceptions, such as special needs, administrative searches, etc. o The programs purpose was to uncover illegal narcotics, not really about highway safety (the way DUI is, etc) is. But this purpose is the detection of evidence of ordinary criminal wrongdoing. o Even if the drug problem is serious, gravity of the threat alone cannot be dispositive. o Court is particularly reluctant to recognize exceptions to the general rule of individuals suspicion where governmental authorities primiarly pursue their general crime control ends. Court will not sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection might reveal that any given motorist has committed some crime. o This is an inquiry into programmatic purpose, not subjective intentnions.

o Such stops as the one at issue here can only be justified by some quantum of individualized suspicion. Rule: Officers cannot sent up a highway checkpoint program whose primary purpose is the discovery of illegal narcotics because that purpose is ultimately indistinguishable from the general interest in crime control. (City of Indianapolis v. Edmond) Note on Edmond and Checkpoints after 9/11: Terrorism-related checkpoints are permitted without any showing of suspicion post 9/11. Analogous to policing the borders and general safety. Drug Interdiction as a Secondary Purpose: Courts have upheld checkpoints where the articulated primary purpose effectuates special needs beyond law enforcement, even though there may also be a secondary purpose of drug interdiction. o So its ok to have drug-sniffing dogs at border checkpoints and DUI checkpoints. Rule: As long as the articulated primary purpose of a checkpoint is not law enforcement, it is permissible to have, as a secondary purpose, drug detection. Drug-Detenction as a Vehicle-Related Safety Interest: Edmonds was different because drug dealers, unlike drunk drivers, do not present an immediate, vehicle-related safety threat by driving. DC Cir. upheld a checkpoint that was set up in response to bad driving by drug dealers, with a secondard purpose of drug interdiction. Suspicionless Checkpoints To Obtain Information About a Crime: Illinois v. Lidster = Holding: A highway checkpoint where police stopped motorists and asked them for information about a recent hit-and-run accident was reasonable and, thus, constitutional. Facts: Police set up a checkpoint a week after the accident, in the same place and at the same time, to try to get more information about the accident. Lidster almost hit one of the officers, and the officer smelled alcohol on his breath, so he was pulled over and tested. Discussion: o The primary law enforcement purpose of this checkpoint was not to determine whether the vehicles occupants were committing a crim, but to ask them to provide help. o It doesnt matter that this stop didnt require individualized suspicion; and this stop is minimally intrusive. o Edmond does not dictate that these kinds of stops must be presumptively unconstitutional.

o Moreover, the stop was OK under the reasonableness inquiry, because the public concern was grave, and the checkpoint furthered that interest significantly. The checkpoint was appropriate tailored. All vehicles were stopped systematically. Rule: A highway checkpoint where police stop motorists and asked them for information about a recent crime is reasonable because the primary purpose is to ask vehicles occupants for infromation, not to dermine if they are committing a crime. (Illinois v. Lidster) H. Searches of Automobiles and Other Moveable Containers Rule: Police may conduct a warrantless search of a car without a warrant only if the officer has PC to believe the car contains evidence of criminal activity. (Carroll v. United States) 1. The Rationale for the Exception to the Warrant Requirement (342-49) Carroll v. United States = Court found constitutional the warrantless search of a car driven by two men that the police had PC to believe were transporting liquor during Prohibition. There is a necessary difference between a search for contraband goods of a fixed location and a search of a ship, motor boat, car, etc., because re: the latter, it is not practicable to secure a warrant since the vehicle could quickly be moved out of the relevant jurisdiction. Progeny of Carroll: Chambers v. Maroney = Court considered whether the Carroll doctrine (and its reliance on a cars mobility) could be invoked when a warrantless search of a car occurred after the car had been removed to the police station. Holding: The search of the car, even secured at the police station, did not violate the Fourth Amendment. Arguably, because the magistrates judgment only the immobilization of the car should be permitted until a search warrant is obtained, but its not clear whether the seizure or the search is the greater intrusion. Since this car could have been searched on the spot when it was stopped under Carroll, it would be weird to create this distinction; PC still exists when the car is at the stationhouse. Rule: Officers can conduct a warrantless search of a car even after it has been removed to the police station and rendered immobile, as long as police have PC to believe there is evidence of a crime inside. (Chambers v. Maroney) Coolidge v. New Hampshire = Police seized Ds car from his driveway after his arrest, and searched it later at the station. Plurality held it impermissible because there were no exigent circumstances, but not case since has ever come to the same conclusion.

This case has been narrowed to its facts, and DOES NOT stand for the proposition that a car must actually be mobile before officers can search without a warrant.

Rule: A warrant is required for an immobilized car only if the officers had a clear opportunity to obtain a warrant before seizing the car. (Coolidge; of questionable authority?) The Diminshed Expectation of Privacy Rationale: Exigency based on actual mobility is not a sufficient justification for the automobile exception, given these cases. California v. Carney = Court says there are two reasons for the car exception to the warrant requirement. o The first is ready mobility, i.e., the capacity to be moved quickly. o The second is the dimished expectation of privacy with respect to ones automobile (relative to ones home or office). These reduced expecations derive not from the fact that the area searched is in plain view, but because of the pervasive regulation of cars that travel on public highways. Exigent circumstances are not required to justify the warrantless search of a car; doesnt matter if theres no risk of destruction of evidence. Rule: Because cars are pervasively regulated, a person has a diminished expectation of privacy with respect to his car. (California v. Carney) Rule: Exigent circumstances are not required to justify the warrantless search of a car; it does not matter if there is no risk of destruction of evidence. (California v. Carney)

Motor Homes: In Carney, Court held that this exception to the warrant requirement is justified in the case of a motor home. Court rejected the argument that its different from other vehicles because it could function as a home as well. Arguably, Court didnt want to deal with line drawing problems. Court said it was not passing judgment on the applicability of this exception to a motor home situated in a way or place that objectively indicates that it is being used as a resident. 2. Containers Inside and Outside the Car (349-57) Moveable ContainersIn and Out of Cars: What about other readily mobile items, like baggage and footlockers? United States v. Chadwick = Court held that mobility of a footlocker justified its seizure upon PC, but that a warrant was required to search the footlocker (unless emergency circumstances would render a seizure insufficient, i.e., the thing is ticking). Court reasoned that the factors that diminish the privacy aspects of a car do not apply to portable baggage. The contents of these are not open to public view, they are not subject to regular inspections and official scrutiny. o Unlike a car, luggages primary function is not transportation, but the repository of personal effects. o So in this context, search is greater intrusion than seizure. Rule: An officer can seize a footlocker upon PC due to the items mobility, but a warrant is required to search the footlocker because the factors that diminish the privacy aspects of a car do not apply to portable baggage. If there were exigent circumstances, howevere.g., the container is ticking that would be an exception. Notes: Crux of Chadwick is that one has a lesser expectation of privacy in ones car than in movable containers such as luggage.

Mobile Containers in the Car: Arkansas v. Sanders (overruled) = Court held that a warrant was required to search a mobile container in a car (here, a suitcase in a taxi). United States v. Ross (overruled?) = Court upheld the warrantess search of a paper bag found during the search of a car. Court reasoned that in Chardwick and Sanders, police didnt have PC as to the vehicle as a whole, only the containers. But in Ross, officers had PC to search entire car for drugs. California v. Acevedo =

Facts: Officers had PC to believe that a paper bag in Ds car contained drugs, but lacked PC to suspect that the car itself otherwise contained contraband. Dichotomy in the law dictates that, if there is PC to search a car, then the entire carincluding any closed container found thereinmay be searched without a warrant, but if there is PC only as to a container in the car, the container may be held but not searched until a warrant is obtained. o Ross applies when police have PC to search entire vehicle; Chadwick applies when police only have PC to search a container within the vehicle. If PC justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. Question: Whether the 4A requires the police to obtain a warrant to open the sack in a movable vehicle simply because they lack PC to search the entire car. (A: No) A container found after a general search of the car and a container found in a car after a limited search for the container are equally easy for the suspect to hide or destroy. Line between PC for car and PC for bag in car will be murky; separate rules could enable police to broaden their power to make warrantless searches. o We cannot see the benefit of a rule that requires law enforcement officers to conduct a more intrusive search in order to justify a less intrusive one. 4A does not compel separate treatment for a car search that extends only to a containter within the vehicle. The previous rule has confused officers and courts and impeded effective law enforcement. Protections of 4A must not turn on such coincidences. Scalias concurrence: Warrant requirement has become riddled with exceptions; jurisprudence as a whole is inconsistent. It is unclear when the Court takes the warrant requirement seriously. Dissent: Its just as anomalous to prohibit the search of a briefcase while the owner is carrying it on a public street yet permit that search when he places it in his locked car.

Rule: Officers do not need PC with respect to the entire car in order to conduct a warrantless search of a container in a vehicle. (California v. Acevedo) Delayed Search of Containers: United States v. Johns = Court considered whether there are any temporal limitations on the power to search containers in cars without a warrant. Searches of containers discovered in the course of a vehicle search are not subject to temporary restrictions not applicable to the vehicle search itself. No reason officesr have to keep that item in the car while the search of the item is conducted; officers can remove it, put it in a warehouse, and search a few days later.

Rule: There are no temporal limiations on the power to search containers in cars without a warrant, nor does the officer neer to keep the item in the car while searching it. (US v. Johns) 3. Search of Passengers Property (357-61) Wyoming v. Houghton = Court considered warrantless search of a container, not owned by the driver, but by a passenger. Officer did not have PC to search the passengers personal effects or any reason to believe that contraband had been placed there. However, Court held that search was permissible because there was PC to believe that drugs were in the car in which the purse was located. If the rule announced in Ross were limited to contents belonging to the driver, the driver could always argue that its not theirs. o Passneger will often be engaged in a common enterprise with the driver, and have the same interest in concealing evidence of their wrongdoing. Passengers would claim everything as their own. The critical element in a reasonable search is not that the owner of the property is suspected of crime, but that there is cause to believe that the specific things to be searched for and seized are located on the property to which entry is sought. When there is PC to search for contraband in a car, it is reasonable of officers to examine packages and containers without a showing of individualized PC for each; a passengers belongings are in the car. Passengers, like drivers, have a reduced expectation of privacy re: the property they transport in cars. Rule: Officers can conduct a warrantless search of a container owned by the passenger of the car, not the driver, as long as the officers have PC to believe that the specific things to be searched for could be concealed there. (Wyoming v. Houghton) 4. Inventory Searches (442-49) Standard procedure for the police to inventory the contents of automobiles and other containers being held in their custody. Inventory search is not based on PC that evidence will be found, and ostensibly is not related to criminal investigationmeant to protect the owners property while it is in police custody, to protect the police and public from potential danger. o Its a caretaking function. To control police discretion, government must show that the officer was operating pursuant to standard inventory procedures promulgated by the police department. Community Caretaking Function:

Cady v. Dombrowski = Court approved the search of a car towed to a private garage after an accident that resulted in the hospitalization of the driver. Officers were looking for victims service revolver (the victim was an officer). Rule: Officers may conduct warrantless inventory search of cars in order to protect the owners property while it is in police custody. (Cady v. Dombrowski) Warrantless, Suspicionless Searches: South Dakota v. Opperman = Court upheld the warrantless, suspicionless inventory search of a car impounded for a parking violation. Court emphasized that the search was conducted pursuant to standard police procedures. Court held that actions of breaking open lock on glove compartment was reasonable because it was mandated by local police regs. Balancing inquiry: intrusiveness of search against legitimate state interest. State interests: o Protection of police from false property claims; o Protection of owners property interests; o Protection of police and public from dangerous items. The warrant requirement would be hard to apply in the context of an inventory search being conducted pursuant to departmental regs: o No special facts for neutral magistrate to evaluste; no danger of hindsight justifications; arbitrariness not present because the searches are routine. Rule: Officers may conduct warrantless, suspicionless inventory search for even a minor crimesuch as a parking violationas long as the search is conducted pursuant to standard police procedures. (South Dakota v. Opperman) Property Carried by an Arrestee: Illinois v. Lafayette = Court upheld the inventory search at the police station of a shoulder bag belonging to a man arrested for disturbing the peace. Govts interest in an inventory search at the stationhouse may be even greater than the interest supporting search incident to arrest. Court rejected the less intrusive alternative test; the reasonableness of any particular governmental activity does not necessarily turn on the existence of alternative less intrusive means. In footnote, Court said inventory search might have been invalid if he was not going to be incarcerated after being booked, i.e., if he was going to be realeased immediately, because those govt interests would no longer be present. Rule: Officers may conduct warrantless search of property carried by an arrestee during an inventory at the stationhouse before booking. (Illinois v. Lafayette) Limits on Police Discretion:

Colorado v. Bertine = Court held that officers could inventory the contents of a van, including a closed backpack, nylon bag, and other containers within it. Court rejects the argument that impoundment was unnecessary because drier could have been offered opportunity to keep his personal property. Rule: reasonable police regs relating to inventory procedures administered in good faith satisfy the 4A, even if courts might, as a matter of hindsight, be able to devise a superior rule. Court rejects argument that dept regs gave police too much discretion because the regulations established several factors by which officer was to determine whether to impound the vehicle or exercise the park-and-lock option. (Nothing prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of criminal activity.) Rule: Courts are not going to second-guess inventory procedures as long as the policy is written and they are administered in good faith. (Colorado v. Bertine) Unlimited Police Discretion Invalidates the Inventory Search: Florida v. Wells = Court found that opening of a locked suitcase could not be justified as an inventory search where the highway patrol had no policy whatever concerning the opening of closed containers. Thus, search was insufficiently regulated by standardized police procedures. However, 4A does allow officer some latitude to decide whether a container may be opened in an inventory search. (I.e., the policy doesnt have to say open-all or open-none to be valid) Rule: When government has no policy concerning opening of containers during an inventory search, this is not a reasonable search. (Florida v. Wells) The Problem of Pretext: Concern in these cases is that, absent such guidelines, investigatory searches for evidence can be conducted under the guise of inventories. As in other 4A contexts, the fact that the officer may have a pretextual motivate is usually held irrelevant if the search itself is objectively reasonable. However, if the officer is acting without guidelines (Wells) or disregards guidelines to obtain evidence, the search cannot be justified as an inventory search. o E.g., if the officer opens only a few containers (selective investigation) or fails to file an inventory list. Less Onerous Alternatives: Court rejected the less-intrusive-means anaylsis, so the issue is not whether such an alternative exists that would equally effectuate state interests. o Rather, the issue is whether the alternative chosen is a reasonable means of accommodating the interest of the state and the privacy of the citizen.

Searches and Seizures That Serve No Inventory Interest: An impoundment or search that effectuates none of the relevant state interests in not reasonable. o Thus, it is not reasonable to impound a vehicle that is parked in a locked garage attached to the arrestees home. o Not reasonable to vacuum a cars interiot to inventory carpet fibers. Rule: An impoundment or search that effectuates none of the following state interests in not reasonable: Protection of police from false property claims; Protection of owners property interests; Protection of police and public from dangerous items. I. Consent searches 1. Consent of the suspect (462-68) Voluntary Consent: Voluntariness Distinguished from Waiver: Rule: A search based upon voluntary consent is reasonable even in the absence of a warrant or any articulable suspicion. Schneckloth v. Bustamonte = The question of whether a consent to a search was in fact voluntary (or instead, was the product of duress or coercion) is to be determined from the totality of the circumstances. o Knowledge of the right to refuse consent is one factor to be taken into account, but that knowledge is no sine qua non of effective consent. This is different from Miranda, since were not dealing with the safeguards of a fair criminal trial. Question isnt whether there was a waiver, but whether the consent was voluntary under the totality of the circumstances. 4A does NOT require that citizens be discouraged from cooperating with the police. In this case, suspect was not under arrest, officer used no force and made no threats, and the suspect expressed no unwillingness to consent. Rule: The question of whether a consent to a search was in fact voluntaryor instead, was the product of duress or coercionis determined from the totality of the circumstances. Knowledge of the right to refuse consent is one factor to be taken into account, but is not a necessary condition. (Schneckloth v. Bustamonte)

United States v. Drayton = Officer had asked permission to search. Concept of agreement and consent should be given a weight and dignity in society based on law. It reinforces rule of law for citizens to advise police of his or her wishes and for police to act in reliance on that understanding. When this exchange takes place, it dispels inferences of coercion. Rule: If the officer asks permission, and the person says yes, this dispels all inferences of coercion. (United States v. Drayton) Consequences of Refusing Consent: United States v. Prescott (9th Cir.) = 9th Cir. held that a person cannot be penalized for exercising the right to refuse to permit a search. Passive refusal to consent to a warrantless search is privileged conduct which cannot be considered evidence of criminal wrongdoing. Such reasoning is necessary to protect th exercise of this constitutional right. An officer is not permitted to consider a refusal to permit consent as evidence of guilt that might lead to PC. Rule: A persons exercise of his right to refuse to consent to a search cannot be considered as evidence of guilt that might lead to PC or RS. (United States v. Prescott (9th Cir.)) The Impact of Custody: United States v. Watson = Court found that the absence of consent warnings or of proof that the D knew he could withhold consent was not controlling where the D had been arrested and was in custodybut his consent was given while on a public street, not at the stationhouse. To hold that illegal coercion is made out from the fact of arrest would be crazy. This case has been relied upon to uphold consent obtained in all types of custodial situations. Totality of the Circumstances: Bumper v. North Carolina = Court placed the burden of proving that consent was given freely and voluntarily on the government. This burden cannot be overcome simply by showing no more than acquiescence to a claim of lawful authority. Rule: The burden of proving that consent was given freely and voluntarily is on the government; it requires more than a showing of acquiescence to a claim of lawful authority. (Bumper v. North Carolina) 5th Cir. has laid out a nonexclusive list of six relevant factors:

Voluntariness of Ds custodial status; Presence of coercive police procedures; Extent and level of Ds cooperation; Ds awareness of his right to refuse consent; Ds education and intelligence; Ds belief that no evidence will be found.

Rule: Factors to examine when considering whether consent was given voluntarily: Voluntariness of Ds custodial status; Presence of coercive police procedures; Extent and level of Ds cooperation; Ds awareness of his right to refuse consent; Ds education and intelligence; Ds belief that no evidence will be found. While a suspect may later regret having given consent, the question is not whether she acted in her ultimate self-interest, but whether she acted voluntarily. So even if the person obviously shouldnt have given consent (e.g., to a search of her person, on which drugs would be found), that doesnt make it involuntary. Threats of Action if Consent Is Refused: What happens if, for example, officer says that if the person doesnt consent, he will just come back with a warrant. o 7th Cir. has said that if its an empty threat, its coercive, but if it is a firmly grounded threat, its not. Rule: If an officer uses an empty threat to get a person to consent, consent is not given voluntarily; however, if the threat is firmly grounded (Ill just come back with a warrant), this is not coercive. Must a PersonWho Is Stopped Be Told That He Is Free To Leave? Ohio v. Robinette = This is the one question before you go: are you carrying drugs, contraband, etc? case. D argued that his consent was not voluntary because the officer never informed him that the stop had ended and he was free to go. Court rejected this, using Schneckloth: knowledge of the right to refuse is just one factor. Rule: When a Terry search has concluded, an officer is not required to tell the suspect that he is free to leave when he asks additional questions outside the scope of the stop. (Ohio v. Robinette) Did the Person Consent?

Sure, I mind v. Sure, go ahead and search Ambiguous phrasing didnt matter because the guy just looked on and didnt protest when the police went ahead and searched. Question is not whether the D consented subjectively, but whether his conduct would have caused a reasonable person to believe that he consented.

Rule: Consent is determined, not by the suspects subjective views, but by whether his conduct would have caused a reasonable person to believe that he consented.

2. Consent of a third party (468-78) In some cases, a third party can consent to the search of an area in which the D has an expectation of privacy. Actual Authority: United States v. Matlock = - D was arrested in the front yard of the house; the woman inside the house admitted the police and told them she shared the house with the D. - She consented to a search. - Court found search of Ds house reasonable because she had actual authority to consent to the search. - Third-party consent rests on mutual use of the property by persons generally having joint access or control for most purposes. o Because they both use the property, any of the co-inhabitants has a right to permit the inspection in his own right. The others have assumed the risk that one of their number might permit the common area to be searched. Rule: Consent for a search can be provided by a third party with actual authority, i.e., someone who shares access and control of the property with the suspect. (United States v. Matlock) Apparent Authority: Illinois v. Rodriguez = Court considered whether a search is valid when its based on the consent of a third party who has apparentbut not actualauthority. - Third party in this case was Ds lady friend who, unknown to the officers, had moved out a month before the search but had retained a key without his permission. - She referred to the premises as our apartment and opened the door to let them in. - Court held that even though she did not hav actual authority to consent to a search, the entry was valid if the officers had reasonable belief that she had authority to consent. - Court rejects argument that this amounts to unauthorized waiver of Ds Fourth Amendment rights; validy of a consent search is determined by reasonableness. Rule: Consent for a search can be provided by a third party who has apparent authority if the officers belief that the third party had actual authority was reasonable. (Illinois v. Rodriguez) Mistakes of Law: Stoner v. California = Court rejects argument that officers reasonably relied on apparent authority of hotel desk clerk to consent to search of Ds room. - Property rights protected by 4A are not to be eroded by unrealistic doctrines of apparent authority.

The Duty To Investigate: - Lower courts have rejected argument that Rodriguez means police can presume third party consent upon the simple assertion of the third party the she has common authority; officers should inquire into extent of authorized access. Rule: Officers have a duty to inquire about the extent of authorized access upon the simply assertion of a third party that she has actual authority. Third Party Consent Where the D Is Present and Objecting: Georgia v. Randolph (2006) - 4A recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant. - Question: Whether a search is lawful with permission of one occupant when the other is present at the scene and expressly refuses to consent. - Holding: A physically present co-occupants state refusal to permit entry prevails, making such a search unreasonable. o A warrantless search of a shared dwelling over the express refusal of consent by a physically present resident cannot be justified as reasonable on the basis of consent given to the police by another resident. - Facts: Ds wife complains to police and tells them he is a cocaine user. Shortly after police arrive, D returns, denies cocaine use, and he refuses the officers request for permission to search the house for items of drug evidence. o Officer turns to Ds wife, who readily gives consent and leads the officer to her husbands bedroom. - Discussion: o Reasoning in Matlock was that the consent of one who posseses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared. o Matlock says reasonableness of such searches if a function of commonly held understandings about the authority that co-inhabitants can exercise in ways that affect each other. o Co-occupants understand that any one of them can admit visitors; a guest obnoxious to one may nevertheless be admitted in his absence by another. o When it comes to searching through bureau drawers, there will be instances in which even a person clearly belonging on the premises as an occupant may lack any perceived authority to consent. o A visitor has no confidence that one occupants invitation allows him to enter when another stands there and says, Stay out. o This stems from the realization that when people living together disagree over the use of their common quarters, a resolution must come through voluntary accommodation. Unless the persons living together fall within some recognized authority, like a household of parent and child, there is no common

understanding that one co-tenant generally has a right or authority to prevail over the express wishes of the other. o Co-tenant will have other opportunities to demonstrate his cooperation/innocent to the police. o Majority is not concerned that this will prevent officers from entering to protect a resident from domestic violence; police have an undoubted right to enter in order to protect a victim. o Fine line: if a potential D with self-interest in objecting is in fact at the door and objects, the co-tenants permission will not suffice, whereas the potential objectior, nearby (in the squad car; asleep in another room) but not invited to take part in the threshold colloquy, loses out. However, there must be no evidence that police have removed the potentiall objecting tenant from the entrance for the sake of avoiding a possible objection. o Decision will not require police to take affirmative steps to find a potential objector before acting on the others permission. Dissent (Roberts, C.J.): o Takes issue with idea that a person would stay out. o The Constitution does not protect sublte social conventions. o Once privacy has been shared, the shared information, documents, or places remain private only at the discretion of the confidant. o Majority is drawing a totally arbitrary line. o Majoritys rule apparently forbids police from entering to assist with a domestic dispute if the abuser objects to their entry. o A decision to share a private place necessarily entails the risk that those with we share may in turn choose to share with the police.

Rule: Officers cannot enter when they have the permission of one occupant but the other is present at the scene and expressly refuses to consent. (Georgia v. Randolph) Notes: - Lower courts have had to decide just when D is present and objecting for Randolph purposes. - One court said it was OK that police returned at a time they knew he would not be there, as officers had no active role in securing his absence. - Ds must explicitly object to entry. 3. Scope of Consent (478-81) - Questions about whether consent extends to areas actually search, as a search beyond the scope of the consent cannot be justified. Scope Defined by the Object of the Search: Florida v. Jimeno = Court relied on Rodriguez and Schneckloth to conclude that the scope of consent is determined by a standard of objective reasonableness.

Court held an officer could reasonably conclude that when a suspect gave general consent to search his car, he also consented to a search of a paper bag lying on the floor of the car. o Officer had told D he was looking for narcotics, and D did not place any explicit limits on the scope of the search. Scope of search is generally defined by its expressed object; reasonable person would know that narcotics are carried in some formof container. o Distinguished from case where officer broke open a locked briefcase in the trunk of a car; when you consent to search of car, not necessarily consenting to search of locked briefcase. Court rejects Ds argument that officers should be required to request separate permission to search each container found in a car; obviously, this would result in less cooperation. Dissent: Consent is ambiguous. Officers should get clear instructions from D.

Rule: The scope of consent is determined by the object of the search, well as a standard of objective reasonableness. Officers do not need to request permission to open individual containers, etc., unless it would destroy property. (Florida v. Jimeno) Ambiguity Construed Against the Citizen: - It is up to citizen, not officer, to clarify any ambiguity concerning scope of consent (Jimenez). - This presents difficulties, since any D who wants to limit the scope of the search immediately draws officers attention to an area where contraband may be found. - Lower courts have usually held that a search is beyond the scope of consent if it involves destructive activity (breaking open a locked container, etc.). In these cases, officer should have explicit permission. 4. Revoking Consent (481-2) - Because theres a right to refuse consent initially and a right to control the scope of consent, there is also a right to revoke consent once given. - Clearly, revocation must be made before the search is complete, and the revocation must be clear and explicit. o Whining is not revoking consent. - If a D revokes before an officer is about to search a certain area/container/etc, the officer cannot consider the Ds actions as proof that there is something incriminating there. o Otherwise, this right would mean very little. o But this is a fact-sensitive determination; if the D revokes consent in a very peculiar way that could legitimately be considered suspicious, officer can take that into account. o Some disagreement among lower courts on whether manner of revocation can actually be considered.

Rule: A person who has given consent to a search may revoke that consent before the search is complete, but the revocation must clear and explicit. Rule: If a person revokes before an officer is about to search a certain area, container, etc., the officer cannot consider this action as evidence of guilt for purposes of obtaining RS or PC.

5. Credibility Determinations (482-4) - Consent cases will often be a he said/she said between officer and C. Not surprisingly, courts routinely find officers to be more credible than Ds. - Police officers often commit perjury on the stand (testilying). - One scholar has suggested revoking the entire exception for searches with consent. 6. Discussion of Wiretapping and FISA (488-94) Procedural Protections Required: Berger v. New York = - NY statute allowed eavesdropping orders upon a finding of a reasonable ground to believe that evidence of crime might be obtained. Law also required application to describe the persons who would be recorded. - Court found serious fault with this law, viewing it as a blanket grant of permission to eavesdrop. Procedural flaws included: o Conspicuous absence of any requirement that a particular crime be named; o No requirement of a particular description of the conversations sought; o Length of time eavesdropping was permitted was too extensive; o Extensions of the time period were granted on an insufficient showing that such extensions were in the public interest; o No provision for terminating the conversation once the evidence sought was obtained; and o Statute lacked notice and return procedures. Title III = - In response to this, Congress enacted a new scheme of regulating wiretapping and electronic eavesdropping, known as Title III. o Does not prohibit interception conducted with consent of one of the parties. o Courts can issue an ex parte order (so as to prevent targets of investigation from finding out theyre being tapped) authorizing interception with a finding of PC and that normal investigative tactics would not succeed. o Exception for exigent circumstances. o Roving wiretaps = interception of communications that are not tied to particular location. Foreign Intelligence Surveilliance Act = - Title III exempts interceptions of communications involving foreign intelligence, since matters of national security are different. - These are governed by FISA: o FISA does not require PC, just that the target of the surveillance is a foreign power or the agent of a foreign power (includes lone wolf terrorists).

o Creates specific FISA judges; notice need never be given if AG determines that nation security interest exists. After 9/11 and the Patriot Act, FISA has been used to authorize surveillance in investigations whose primary purpose is criminal prosecution (as opposed to just national security investigation).

NSA Program of Surveillance Without a FISA Order: - During Bush administration, NSA took the position that FISA was too strenuous and that NSA established its own program to monitor communciations without getting FISA warrants. VII. Remedies for Fourth Amendment Violations: The Exclusionary Rule A. Adoption and rationale Background: Exclusionary rule, in its broadest conception, provides that evidence obtained in violation of 4A must be excluded from trial. o 4A is not explicit on remedies. 1. Weeks, Wolf and Mapp (493-505) Exclusionary Rule for the Federal Courts: Weeks v. United States = Court held that evidence obtained in violation of 4A must be excluded from evidence in federal courts. If this evidence can be used against criminal defendants, than the 4As protections have no value. To sanction such proceedings would be to affirm a manifest neglect if not an open defiance of the prohibitions of the Constitution intended for protection of the people against such unauthorized action. This was limited to cases where illegal search was conducted by federal officers and introduced in federal courtan exercise of the Courts supervisory power over fed courts. Two themes: o Exclusionary rule is the only effective means of protecting 4A rights; and o The interest in judicial integrity requires that the courts not sanction illegal searches by admitting their fruits. Silverthorne Lumber v. United States = Court stressed that the essence of forbidding acquisition of evidence in a certain way is not merely that evidence so acquired shall not be used before the Court but that it shall not be used at all. (Court said it could not be the basis for a subpoena)

Rule: It is possible that certain evidence that would be suppressed at trial must also be suppressed in other contexts; for example, it may not be the basis for a subpoena. (Silverthorne Lumber v. United States) Exclusionary Rule and the States: Wolf v. Colorado = Court refused to hold that the exclusionary rule was incorporated against the states through the DPC. Clearly, the security of ones privacy against arbitrary intrusion by the police is implicit in the concept of ordered liberty and as such enforceable against the states through the DPC. o But Weeks was not derived from the explicit requirements of the of the 4A Because most of the English-speaking world does not regard as vital to such protection the exclusive of evidence thus obtained, we must hesitate to treat this remedy as an essential ingredient of the right. It is not for this Court to condemn as falling below the minimal standards assured by the DPC the states reliance on methods other than the exclusionary rule. o Very much a laboratories of democracy decision Mapp v. Ohio = Holding: All evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court. Its not consistent to say 4A applies against states but its most important constitutional privilege, the exclusionary rule, does not. The same rule that applies to the federal courts and government should apply to state courts and governments via principles of incorporation. The imperative of judicial integrity makes it acceptable that the criminal might go free when the constable blunders. o It is the law, not the constable who sets him free. o Nothing can destroy a government more quickly than its failure to observe its own laws. We cannot permit the right of privacy to be an empty promise. o It cannot be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Dissent: Theres a difference between the right of privacy and the means of securing it. Rule: In general, all evidence obtained by searches and seizures in violation of the Constitution is inadmissible in both state and federal courts.

Arguments For and Against the Exclusionary Rule: Four points in its favor: o The rule preserves judicial integrity by insulating the courts from tainted evidence; But integrity and fairness are also threatened by excluding evidence that will help the justice system to reach a true verdict; o The rule prevents the government from profiting from its own wrong; But sometimes the government isnt doing wrong, its just made a legal miscalculation; o The rule is not costly, because it only excludes what should never have been obtained in the first place; o The rule is necessary to deter police misconduct. 2. Replacing the Exclusionary Rule with Tort/Other Remedy (505-10) N.B. Any of the following methods could be used as supplements to, rather than replacements for, suppression of evidence: o Civil Damages Recovery: E.g., False arrest, false imprisonment, trespass, 1983, Bivens. Problems: difficult to win, and difficult to collect on judgment because of sovereign immunity. Moral aspect of the case makes recovery in a jury trial difficult, because these arent sympathetic plaintiffs. Nominal damages provide no incentive for an aggrieved citizen to sue, but there are still problems of proof. Recovery against individual officer will not produce a lot of money. Supreme Court View on Civil Damage Recovery: Hudson v. Michigan = Court seemed to find that 1983 actions are a viable alternative to the exclusionary rule. Violation of knock-and-announce requirement did not justify exclusion and was not a necessary deterrent because civil remedy existed in 1983. Rule: Violation of knock-and-announce requirement does not require the exclusion of evidence found in the subsequent search. (Hudson v. Michigan) Fortified Civil Damages Remedy: Professor Amars proposal: o Government should be made liable for illegal police behavior; o Damage multipliers and punitive damages should be made available, with some excess going to a 4A education fund; o Claims for small damage amounts should be entitled to the possibility of class action consolidation;

o Procedural limitations on injunctive relief should be liberalized; o Administration channels should be established to process these claims quickly. Important point: With the exclusionary rule, courts may be hesitant to find a violation because the consequences are so drastic. Civil remedies might make them more inclined to find a violation when one truly exists. The Senate Proposal: Fortified tort remedy Criticism of this is that it would turn Fourth Amendment rights into something can the government can put a price on; the govt could make an economic decision to violate a persons 4A rights. Criminal Prosecutions of Offending Officers: There are a number of essentially dormant statutes that make it a misdemeanor for a cop to participate in an illegal search. There are fines, too. Prosecutors are reluctant to press charges against the police, except in the most extreme cases, because they rely heavily on cooperation with the department. Police Rulemaking and Other Administrative Solutions: Police regulation, education, training, and discipline. But theres an argument that growth in these is a result of the consequences of the exclusionary rule, in which case removing the impetus would get rid of the solution! B. The Good Faith Exception (510-41) Limitations on Exclusion: Situations in which evidence has been illegally obtained but wont be excluded. Good Faith Exception: Adopted for searches conducted pursuant to a warrant later found to be invalid o But there are exceptions to this exception United States v. Leon = Question: Whether 4A exclusionary rule bars the use, in the prosecutions case-in-chief, of evidence obtained by officers acting in reasonable reliance on a search warrant ultimately found to be unsupported by PC? o Holding: Suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual circumstances in which exclusion will further the purposes of the exclusionary rule.

Exclusionary rule is not a necessary corollary of either the 4A or 5A; it seems clear that the use of fruits of a past unlawful search or seizure works no new 4A wrong. The question of whether the exclusionary sanction is appropriate in a particular case is an issue separate from the 4A, and must be resolved by weighing the costs and benefits of preventing the use of that evidence (which is inherently trustworthy and tangible). The exclusionary rule imposes substantial social costs by interfering with the justice systems truthfinding function, and because it allows guilty parties may go free or receive favorable plea bargain. Because a search warrant provides the detached scrutiny of a neutral magistrate, which is more reliable than the officers own judgment, nonexclusion is this context is less dangerous. o Were not concerned about providing a deterrent effect on the issuing judge or magistrate (which is what this exclusion does, in some sense). Good faith is objective. The marginal or nonexistent benefits produced by suppressing evidence in this context cannot justify the substantial costs of exclusion. Exceptions to this exception: o Officers reliance on PC determination and technical sufficiency of the warrant must be objectively reasonable; in some circumstances, the officer will have no reasonable grounds for believing that the warrant was properly issued. Suppression if thus appropriate if the magistrate was misled by information in the affidavit that the affiant knew was false (or should have known), or if the magistrate has wholly abandoned his judicial role. Suppression is also appropriate if the officer relies on a warrant based on an affidavit so lacking in indicia of PC as to render belief in its existence entirely unreasonable. A warrant may also be so facially deficient (particularity, etc) that executing officers could not reasonably presume its valid. If lower courts want to provide a deterrent for magistrates in some cases by suppressing, they can do that. Brennans dissent: The view of the majority is that the 4A wrong is fully accomplished by the original search without PC. o If the amendment is to have any meaning, police and courts cannot be regarded as constitutional strangers. o Exclusionary rule isnt about punishment, its about institutional compliance; this use of the exclusionary rule can have a positive deterrent effect on police officers. o Mind-boggling concept of objectively reasonable reliance on an objectively unreasonable warrant. Stevenss dissent: Even when police know their warrant application is probably insufficient, they retain an incentive to submit it to a magistrate, on the chance that he may take the bait.

o A 4A violation without a remedy converts the Bill of Rights into an unenforced honor code. Rule: Evidence obtained pursuant to a warrant that is later held invalid does not need to be excluded unless: The magistrate was misled by information in the affidavit that the affiant knew (or should have known) was false, or the magistrate wholly abandoned his judicial role. The officer relied on a warrant based on an affidavit so lacking in indicia of PC as to render belief in its existence entirely unreasonable, or the warrant was so facially deficient (particularity, etc) that executing officers could not reasonably presume it was valid. (United States v. Leon) Note on Massachusetts v. Sheppard: Massachusetts v. Sheppard = Police officer had an affidavit that the DA said set forth PC. But because it was Sunday, the local court was closed, so he ended up making some edits to standard controlled substance form, and forgot to delete that phrase from the warrants most important part. Judge similarly forgot to make that change, so it was technically defective. Court held that executing officer acted in good faith, and declined to suppress the evidence. Reasonable Reliance on Unreasonable Warrants: Leon rejected a good faith test that would depend on the subjective state of mind of the officer. In cases where some or most people would think that a warrant is invalid, the good faith exception will apply so long as reasonable minds can differ on the point. o Where no argument can be made that the warrant is valid, the exception will not apply. o Similar to the standard for reviewing jury verdicts; no whether the reviewing court would have decided it another way, but whether no reasonable person could have decided the way the jury did. Thus, three types of errors after Leon: o Reasonable mistakes that are not a violation of the 4A at all (such as mistake of fact); o Unreasonable mistakes that violate the 4A, but at the time of the conduct reasonable minds could have differed about; and o Unreasonable mistakes where no reasonable argument can be made that the action was lawful. Rule: The application of the good-faith doctrine does not depend on the subjective state of mind of the officer, but objective circumstances.

Rule: In cases where some or most people would think that a warrant is invalid, the good faith exception will apply so long as reasonable minds can differ on the point. However, where no argument can be made that the warrant is valid, the exception will not apply. Leon, Gates, and Warrants Clearly Lacking in PC: There is some gray area between the Gates standard and a warrant that clearly lacks PC. o Clearly, there are also cases where PC is found lacking under Gates, but the officer was not objectively reasonable in relying on the warrant. Leon and Overbroad Warrants: Seems that the good faith exception would apply to a search pursuant to an overbroad warrant, as long as reasonable minds could differ about whether the warrant is in fact overbroad. o But there will also be cases where this isnt true. Leon and Untrue or Omitted Statements in the Warrant Application: Exception to the exception = when officer includes material information that he knew (or should have known) was false, or if he knowingly omits material information that would have resulted in the magistrates refusing to issue the warrant. o Doesnt apply because error here is officers. Rule: The good-faith doctrine does not apply if the officer included material information that he knew (or should have known) was false, or if he knowingly omitted material information that would have resulted in the magistrates refusing to issue the warrant. Leon and the Abdicating Magistrate: Courts have held that Leon does not apply when magistrate abdicates his neutral and detached role. o In one case, magistrates confession that he made technical errors because he was intrigued by the facts led to suppression. Due to those errors, officers seized 300 items from the mans house, when the only item at issue should have been a package. The good faith exception will not apply if the person who issues the warrant is affiliated with law enforcement, i.e., is not neutral and detached. The Teaching Function: Leon dissenters were concerned that lower courts would avoid difficult 4A violation question, and simply instead reach the conclusion that the officer was not unreasonablehence no suppression. o Even if Assuming without deciding By not deciding these questions, officers then CONTINUE to act in good faith until the question is actually decided.

o When court refuses to decide whether a certain type of warrant is invalid, a magistrate could issue an identical warrant the next day and the officers could engage in that conduct without consequence, since there would be no adverse ruling to guide them. The duty of the courts to answer these questions is called their teaching function. Other courts say the preferred sequence is to address the 4A issues, then discuss whether the good faith exception is applicable. In one case, court said: cops didnt act unreasonably because they didnt anticipate our decision today, but every cop hereafter who does this will be unreasonable.

The Good Faith Exception and Warrantless Searches: Court in Leon said officer shouldnt be punished for magistrates error, and that doing so would serve no deterrent effect. Since Leon, Court has extended the good faith exception to certain warrantless searches relying on whether the person who made the mistake would be deterred by applying the exclusionary rule. So far, the Court has not held that an officer can rely on his own invalid but reasonable assessment that his search or seizure is legal. Reasonable Reliance on Legislative Acts: Illinois v. Krull = Illinois had enacted a statute authorizing warrantless searches by state officials to inspect the records of car dealers. The statute was found unconstitutional after the search at issue was conducted. Court reasoned that, as in Leo, the presence of an intermediary upon whom the officer could reasonably rely meant that the officer could not be deterred by the exclusionary rule, nor could the legislature. However, opinion emphasized that a statute cannot support objectively reasonable reliance if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws (or if the officer should have known it was unconstitutional). Dissent: Concerned that this creates a grace period during which police may freely perform unreasonable searches and gives legislatures incentives to pass unconstitutional laws. Rule: The good-faith doctrine applies when the legislature passes a law and the officers mistake comes from his reliance on that law, unless the legislature wholly abandoned its responsibility to enact constitutional laws. (Illinois v. Krull) Clerical Errors and Reliance on Court Clerical Personnel: Arizona v. Evans = Officer ran Evans information into a computer data terminal and found an outstanding arrest warrant; he conducted a search and found marijuana. But the arrest warrant had been quashed before the stop, and this was the result of a clerical error.

Court wrote that the critical question was whether the government official who made the mistake can be deterred by the operation of the exclusionary rule. o Exclusionary rule was historically designed as a means of deterring police misconduct, not mistakes by court employees. o No evidence that court employees are designed to ignore or subvert the 4A. o No basis for believing that the application of the exclusionary rule would have any effect on these court employees. Next question is whether application of exclusionary rule would deter police misconduct. Clearly not the case here. OConnors concurrence: In some cases, computer error might be because of police personnel, not court personnel. Stevenss: Its outrageous for a citizen to be handcuffed, arrested, and searched on a public street simply because some bureaucrat has failed to maintain an accurate computer database.

Rule: The critical question with regard to apply the good faith doctrine is: can the government official who made the mistake be deterred by the operation of the exclusionary rule? Rule: The exclusionary rule does not apply to evidence obtained resulting from a search that was conducted on the basis of a mistaken entry in a police computer database. (Arizona v. Evans; Herring v. US) Good-Faith Exception Applied Where Error Was the Result of Negligence Attenuated From the Arrest or Search: Herring v. United States (2009) = Question: What if an officer reasonably believes there is an outstanding arrest warrant, but that belief turns out to be wrong because of a negligent bookkeeping error by another police employee? Facts: Warrant had been recalled, but the information about the recall did not appear in the database due to error. The arresting officer was called within 10 minutes, but Herring had already been found with a gun and drugs and arrested. Question turns on culpability of the police and potential of exclusion to deter wrongful police conduct. o Holding: Because in this case, the error was the result of isolated negligence attenuated from the arrest, rather than system error or reckless disregard of constitutional requirements, these circumstances should not bar the jury from considering this evidence. Reasoning: Exclusionary rule is designed to safeguard 4A rights generally through its deterrent effect. o Officers here did nothing improper; the error was negligent, but not reckless or deliberate.

o Exclusion is a last resort, not a first impulse. Exclusionary rule is not an individual right and applies only where it results in appreciable deterrence. An error that arises from nonrecurring and attenuated negligence is far removed from the core concerns that led us to adopt the rule in the first place. To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. If police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to law the groundwork for future false arrest, exclusion would certainly be justified. Police negligence does not automatically trigger suppression. When police mistakes are the result of negligence such as that describe here, rather than system error or reckless disregard of constitutional requirements, any marginal deterrence does not pay its way. Ginsburgs dissent: Most serious impact of this decision will be on innocent persons wrongfully arrested based on erroneous information carelessly maintained in a computer database. o Majoritys decision runs counter to a foundational premise of tort lawthat liability for negligence creates an incentive to act with greater care. o Electronic databases form the nervous system of contemporary criminal justice operations, and they are expanding dramatically every day.

Good Faith Where the Arresting/Searching Officer Is at Fault? Court has not yet addressed whether the GF exception applies when the officer is relying only on his or her own mistaken judgment regarding, e.g., voluntary consent, exigent circumstances, etc. Deterrent effect in this context would have to result from police departments to train officers to follow a strict application of 4A law, and not to push the envelope. o Applying this exception here would give officers an incentive to conduct searches of dubious legality. The good faith exception and its relationship to the retroactivity doctrine: Davis v. United States = - Question: Whether the good faith exception the exclusionary rule applies when police conduct a search in compliance with binding precedent that is later overruled. (A: Yes) - The sole purpose of the exclusionary rule is to deter furture 4A violations. - The harsh sanction of exclusion should not be applied to deter objectively reasonable activity. C. Personal Right to Complain About a Fourth Amendment Violation (541-57)

For a defendant to be entitled to the exclusion of evidence, he must establish that his own personal rights were affected by the govts search or seizure (akin to a question of standing)

Rule: For a defendant to be entitled to the exclusion of evidence, he must establish that his own personal rights were affected by the governments search or seizure. (Rakas v. Illinois) Rakas v. Illinois = Petitioners were passengers in a car that was searched, and in which a sawed-off rifle was found. The petitioners argued that any person at whom the search was directed should have standing to context the legality of that search and object to admission of any evidence found. Court rejected their arguments. This would permit a defendant to assert that a violation of 4A rights of a third party entitle him to have evidence suppressed at his trial. Not standing, but a substantive question of whether or not the proponent of the motion to suppress has had his own rights infringed by the conduct he challenges. The 4A cannot be vicariously asserted. o This would create serious administration difficulties because a hearing would be required to determine whether the police conduct was motivated by an effort to obtain information against the accused or someone else. The question is whether the challenged S&S violated the 4A rights of the defendant who seeks to exclude the evidence obtained? o This requires a determination of whether the disputed S&S has infringed on an interest the 4A protects. Katz is helpful: the capacity to claim 4A protection depends, not on a property right in the invaded place, but on whether the person has legit expectation of privacy in the invaded place. o A persons legitimate presence on the premises may factor into this analysis, but it is not dispositive. Rule: A defendant cannot assert that the violation of the 4A rights of a third party entitle him to have evidence suppressed at his trial. The person objecting to the admission of the evidence must have had a legitimate expectation of privacy in the invaded place. (Rakas v. Illinois)

N.B. After Rakas, the question of whether personal rights have been violated is still a separate question from whether a search (or seizure) has occurred, even though both questions are governed by the same test (legit expectation of privacy). Abolition of Automatic Standing: United States v. Suvucci = Court abolished the automatic standing doctrine, which held that possession of property gave a person an automatic right to complain about the search of that property. Courts opinion concluded that possession should not be used as a substitute for a factual finding that the owner of the good had a legit expectation of privacy in the area searched. A prosecutor may simultaneously maintain that the defendant possessed the good, but was not subject to 4A deprivation. A person in legal possession of a good seized during an illegal search has not necessarily been subject to a 4A deprivation. Rule: A person does not have an automatic right to complain about the search of property simply because he possesses it. He must have a legitimate expectation of privacy in the area that was searched. (US v. Suvucci) Ownership of Seized Property Does Not Necessarily Confer Standing: Rawlings v. Kentucky = Rawlings was convicted of trafficking, and drugs were seized from the purse of a woman who was visiting the premises with Rawlings. Court found that Rawlings had no right to object to the search of the purse because he had no legit expectation of privacy in the purse. His ownership of those drugs was not enough to confer a right to object to the search. Rule: Even if the suspect owns the item seized, he must demonstrate that he also had a legitimate expectation of privacy in the place where it was found before he can object to the search. (Rawlings v. Kentucky) Rule: While ownership of the property seized does not necessarily provide the right to object to a search, it does provide the right to object to a seizure of that property. In Rawlings, though, this was no help because the property seized was contraband. Targets Without Standing: United States v. Payner = There was an IRS investigation of American citizens doing business in the Bahamas. When an official from their Bahamian bank visited the US, IRS agents stole his briefcase to obtain evidence against Payner. Payner had no right to object to the search of the briefcase, even though he was the target of that search.

The Court rejected Payners arguments that the court use its supervisory power to exclude the evidence, given the officers bad intent, concluding that the supervisory power does not authorize a federal court to suppress otherwise admissible evidence on the ground that it was seized unlawfully from a third party not before the court.

Rule: The exclusionary rule does not require suppression of evidence illegally obtained from a third party not before the court, even if it was seized from that party in an investigation targeting the defendant. (US v. Payner) D. The Fruit of the Poisonous Tree doctrine, and exceptions to the doctrine (55782) Presence in the Home of Another: Minnesota v. Carter = Respondents and the lessee of an apartment were sitting in one of its rooms bagging cocaine, and were observed by a cop through the window blind. Respondents had come to the apartment for the sole purpose of bagging cocaine; they had never been there before. They argued that they had standing to claim the 4As protection because they had a legit expectation of privacy in that apartment. Respondents were not overnight guests, but were present for a business transaction and were only in the home a matter of hours. There is no indication they had any previous relationship with the apts owner. Relatively short period of time on lack of any previous connection between them and the householder led to the conclusion that their situation was closer to that of one simply permitted on the premises, and not an overnight guest (a person who would have that expectation of privacy). Kennedys concurrence: I would expect that most, if not all, social guests legitimately expect that in accordance with social custom, the homeowner will exercise discretion to exclude others for the guests benefit (suggesting that, as a general rule, social guests would have a legit expectation of privacy). o But here, the connection between guest and homeowner was fleeting and insubstantial, so no such expectation existed. Rule: A person does not have a legitimate expectation of privacy when they spend an hour in an apartment of someone they have just met. In this situation, a person is more like one permitted on the premises than an overnight guest. (Minnesota v. Carter) Cars, Drivers, Passengers: It is clear that the owner of a car has standing to object to a search. What if the owner is not present? What if the owner is in the car but somebody else is driving? Can a passenger ever have a protectable Fourth Amendment interest in the car? Who can object to the seizure of the car, as distinct from its search?

Disassociation from Property: If a person disassociates himself from certain property, he loses standing to object to a search of that property. Not just abandoning it, but placing all documents in someone elses name, having someone drive the car, travelling in a separate vehicle, disavowing any knowledge of it or its contents, etc. Rule: If a person disassociates himself from certain property, he loses standing to object to a search of that property. Coconspiratory Standing Rejected: United States v. Padilla = Court held that a person does not have an automatic right to challenge a search or seizure simply because he is a member of the conspiracy that owned the property searched or seized. Rakas requires that each person establish an individual expectation of privacy, or a legitimate possessory interest, in the item that has been searched or seized. Rule: A person does not have an automatic right to challenge a search or seizure simply because he is a member of the conspiracy that owned the property searched or seized. (United States v. Padilla) The Requirement of Causation and the Exception for Attenuation: Exclusionary rule does not apply unless there is a substantial causal connection between the illegal activity and the evidence offered at trial. Causal Connection: Evidence Found After a 4A Violation: Brown v. Illinois = Brown moved to suppress the confessions he gave as having been caused by an arrest without PC. He gave the confessions after he had been read his Miranda rights, however. In Wong Sun v. United States, the Court declared, We need not hold that all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question is whether the evidence has been come at by exploitation of illegal police conduct or by means sufficiently distinguishable, i.e., attenuated, to be purged of the primary taint. The question is here is whether Browns statements were obtained by exploitation of the illegality of his arrest. For the causal chain to be broken, Wong Sung requires more than that the confession meet the 5A standard of voluntariness. If Miranda warnings, by themselves, were held to attenuate the taint of unconstitutional arrest, the effect of the exclusionary rule would be substantially diluted. Any incentive to avoid violating the 4A would be eviscerated by making these warnings a cureall. The question of whether a confession is the product of free will must be answered on the facts of each case; factors to consider:

Miranda warnings; Temporal proximity of the rarest and the confession; The presence of intervening circumstances; and The purpose and flagrancy of the official misconduct. The burden of showing admissibility rests on the prosecution. In the present case, the arrest was investigatory; the detectives pursued this with the hope that something might turn up. The manner in which Browns arrest was effected gives the appearance of having been calculated to cause surprise, fright, and confusion. Powells concurrence: If an illegal arrest merely provides the occasion of initial contact between the police and the accused, and because of time or other intervening factors the accuseds eventual statement is the product of his own reflection and free will, application of the exclusionary rule can serve little purpose. o Distinction between flagrantly abusive violation of 4A rights and technical violations of the 4A. Courts should require clearest indication of attenuation in the former, and little in the case of the latter. o Wong Sun inquiry should always be conducted with the deterrent purpose of the 4A exclusionary rule in focus. o o o o

Rule: The question for fruit of the poisonous tree cases is whether the evidence was obtained by exploitation of illegal police conduct or by means sufficiently distinguishable, i.e., attenuated, to be purged of the primary taint. The question is not whether such evidence would have come to light but for the illegal actions of the police. (Brown v. Illinois) Statements Tainted by an Illegal Arrest: Dunaway v. New York = Defendant was arrested without PC, taken down the station, and confessed after receiving his Miranda warnings. Court said case was identical to Brown. Taylor v. Alabama = D was arrested with PC, taken to the station, Mirandized, fingerprinted, re-advised of his rights, questioned and placed in a lineup. After a short visit from his girlfriend and a male companion, he waived his Miranda rights and confessed. Court found that attenuation (6 hrs) was not sufficient, given the line-ups, etc. Statements Not Tainted by an Illegal Arrest: Rawlings v. Kentucky = Miranda warnings were given, 45-minute detention was in a congenial atmosphere; police action did not involve flagrant misconduct. Warrantless In-Home Arrest Is Not Causally Connected to a Subsequent Confession: New York v. Harris = Court held that because the defendant was not unlawfully in custody when he made the confession. Police had violated Payton by making a warrantless in-home arrest, but Court reasoned that the Payton rule is designed to protect the physical integrity of the home.

Thus, a Payton violation represents an illegal search of the home, but it does result in an illegal arrest, as long as there is PC. Evidence obtained in a warrantless search is subject to exclusion, but subsequent confessions outside the home are not.

Insufficient Casual Connection Between a Knock-and-Announce Violation and Evidence Found in the Home: Hudson v. Michigan (2006) = Court decided that a violation of the K&A requirement does not justify the exclusion of evidence found in the warranted search. When police arrived, they waited too short a time after announcing their presence to enter the home. Exclusion may not be premised on the mere fact that a constitutional violation was a but-for cause of obtaining evidence. Attenuation can occur when the causal connection is remote or when, even given a direct causal connection the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained. o There are some cases where exclusion does not serve the purpose of the rule that made the police conduct illegal in the first place. Interest behind K&A is protection of human life and limb. What it does not protect is ones interest in preventing the government from seeing or taking evidence described in the warrant. o Since the interests that were violated in this case have nothing to do with the seizure of evidence, the exclusionary rule is inapplicable. K&A violations require extensive litigation. Since claiming one of these would become incredibly valuable, courts would be bogged down in this question. o Would also encourage officers to wait a long time, allowing more destruction of evidence. Consent as Breaking the Chain of Causation: Police argue that an illegal search or seizure should not result in exclusion because the suspect voluntarily consented to that search. The question in these cases was whether the voluntary consent is enough to break the chain of causation; the answer is dependent on the circumstances. Courts typically use the same analysis (and the same factors) as they do for voluntarily admitted confessions. Rule: Whether consent is sufficient to break the chain of causation for fruit of the poisonous tree depends on the totality of the circumstances. Witness Testimony After Illegal Arrests and Search: Courts are reluctant to suppress the testimony from a live witness that is alleged to be the product of an illegal search or seizure. The witnesss decision to testify is ordinarily enough to break any casual connection.

Court said in United States v. Ceccolini that the exclusionary rule should be invoked with much greater reluctance where the claim is based on a causal relationship between a violation and the discovery of a live witness. o Exclusionary rule should only apply if there is a very close direct link between the illegality and the witnesss testimony.

Rule: Exclusionary rule should be invoked with much greater reluctance when the claim is that discovery of a live witness would not have occurred without the illegal search or seizure. (US v. Ceccolini) Independent Source: Evidence will not be excluded if it is obtained independently and without reliance on any illegal police activity. o This allows introduction of evidence discovered initially during an unlawful search if the evidence is discovered later through a source that is untainted by initial illegality. o E.g., when an illegal search of premises is cured by a warrant, and where the PC supporting the warrant was not derived from information obtained in the illegal search. Rule: When evidence is discovered during an illegal search, the taint of that evidence can be cured by the subsequent acquisition of a warrant, as long as the PC supporting the warrant was not derived from information obtained in the illegal search. (Murray v. United States)

Murray v. United States = Agents search a warehouse and observed in plain view bales of marijuana; returned when they had a search warrant, but did not mention the initial entry in the application for it. The agents then reentered the warehouse and seized the marijuana. In Segura v. United States, Court held that police officers illegal entry upon private premises did not require suppression of evidence subsequently discovered at those premises when executing a search warrant obtained on the basis of information wholly unconnected with the initial entry. Question here: Whether, again assuming evidence obtained pursuant to an independently obtained search warrant, the portion of such evidence that had been observed in plain view at the time of a prior illegal entry must be suppressed. Police are meant to be put in the same position, not a worse one, than they would have been if there had been no police misconduct. Thus, when challenged evidence has an independent source, its not excluded. Independent source has a general meaning; it identifies all evidence acquired in a fashion untainted by the illegal evidence-gathering activity. Where an unlawful entry has given investigations knowledge of facts z and y, but fact z has been learned by other means, fact z is admissible because it is derived from an independent source. Dissenters are worried that police will conduct the illegal entry (as a confirmatory search); if what they suspect is there, they will get the warrant. If not, they wont waste the time. o But why would police do this when they would then have the more onerous burden of convincing a trial court that no information gained from the illegal entry affected their decision or the magistrates? If later acquisition of knowledge is not the result of the earlier violation, the independent source doctrine should apply. Inevitable Discovery: Government must show that illegally obtained evidence would have been discovered through legitimate means independent of official conduct. o Akin to a hypothetical independent source exception. Rule: If illegally obtained evidence would have been ultimately discovered through legitimate means independent of official conduct, it can be admitted. To invoke this exception, the government must prove by preponderance that the challenged evidence would have been discovered through independent legal means. (Nix v. Williams)

Establishing the Exception: Nix v. Williams = Defendants statements to police were suppressed because he had been denied counsel, but his statements led police to the girls body. Court left open the question whether evidence as to the location and condition of the body might be admissible. Factfinder found that a search party, which had suspended its activities once the man agreed to lead police to the body, would have found the body shortly afterwards anyway, in essentially the same condition. Court allowed this evidence in, with the same reasoning about not leaving police worse off. Court declined to restrict the inevitable discovery limitation to situations in which an officer acts in good faith; sufficient deterrence flows from uncertainty that any evidence will be obtained legally. To invoke this exception, the government must prove by preponderance that the challenged evidence would have been discovered through independent legal means. Court strongly suggested that the inevitable discovery doctrine limits the exclusionary rule under the 4A, 5A, and 6A. Inevitable Discovery Through a Hypothetical Inventory Search: Questions re: the doctrines application frequently arise where an illegal search revels something that would have been discovered during an inventory search conducted during the partys arrest. We Would Have Obtained a Warrant Most courts have rejected government arguments that the inevitable discovery exception is met on the simply assertion that the officers had PC and would have obtained a warrant. o Easterbrook: Inevitability requires PC plus a chain of events. Holding otherwise would render the prior-approval requirement of the 4A a nullity. Rule: Government official cannot demonstrate inevitable discovery simply by claiming that the officers had PC and would have obtained a warrant. Courts must focus on what the officers actually would have done, not on what they could possibly have done.

Establishing Inevitability: Courts must focus on what the officers actually would have done, not on what they could possibly have done. o Speculative scenarios do not satisfy inevitability. o Lack of evidentiary support that an officer would have taken that course. o A finding of inevitable discovery necessarily rests on facts that did not occur; however, by definition the occurrence of these facts must have been likely, indeed inevitable. E. Other exceptions to the exclusionary rule (582-91) Use of Illegally Seized Evidence Outside the Criminal Trial Context: Court has held that the exclusionary rule generally does not apply outside the context of a criminal trial on the merits. o This is because the cost of exclusion in other contexts has been held to outweigh the benefits of deterrence. Grand Jury Proceedings: United States v. Calandra = Defendant was subpoenaed to appear so that he might be questioned on the basis of information obtained from illegally seized documents. Court held that he had no right to refuse to answer the questions. Indictments can thus be based on illegally seized evidence. o And accordingly, the government does get some benefits from an illegal search. Rule: The exclusionary rule does not bar the use of illegally obtained evidence. The exclusionary rule generally does not apply outside the context of a criminal trial on the merits. (US v. Calandra) Civil Tax Proceedings: Evidence illegally seized by state police can be used by federal tax officials in civil tax litigation. (United states v. Janis) o Court reasoned that deterrent effect is attenuated when the punishment imposed on the offending officer is the removal of that evidence from a civil suit by or against a different sovereign. Rule: Evidence illegally seized by state police can be used by federal tax officials in civil tax litigation. (United states v. Janis)

Civil Deportation Proceedings: INS v. Lopez-Mendoza = INS officials had illegally obtained confessions from aliens concerning their immigration status. Court held that illegally seized evidence could be used in a deportation proceeding. Rule: The exclusionary rule does not apply to deportation proceedings. (INS v. LopezMendoza) Habeas Corpus Proceedings: Stone v. Powell = Court held that the exclusionary rule could not be invoked in habeas corpus proceedings to challenge 4A violations. Deterrence effect is very low because the proceeding is so far removed. Practical consequence of this case is that unless the Court grants cert, no federal court will ever review a state court ruling on a 4A issue. Rule: The exclusionary rule cannot be involved in habeas corpus proceedings. (Stone v. Powell) Parole Revocation Proceedings: Illegally obtained evidence can be admitted in parole revocation hearings (Pa. Bd. of Probation v. Scott) Court says no exception even if it is clear that the officer conduct an illegal search for the purpose of using the evidence at a parole revocation hearing. Rule: Illegally obtained evidence can be admitted in parole revocation hearings, even if it is clear that the officer conducted the illegal search for the purpose of using the evidence at a parole revocation hearing. (Pa. Bd. of Probation v. Scott)

Sentencing Proceedings: Court has not considered whether illegally obtained evidence can be used in sentencing proceedings, but the lower courts have found the exclusionary rule inapplicable in this context. Benefits of providing sentencing judges with reliable information about the defendant outweigh the likelihood that allowing consideration of this evidence will encourage unlawful police conduct. o Exception if theres a showing that officers obtained evidence expressly to enhance a sentence (maybe). Use of Illegally Obtained Evidence for Impeachment Purposes: Direct Examination: In Walder v. United States, Court held that a defendant was properly impeached with evidence of drugs that had been illegally seized from his home in an earlier, unrelated case because the defendants statements that he had never possessed narcotics opened the door to this evidence. Cross-Examination: In United States v. Havens, the Court held that illegally obtained evidence can be used to impeach the defendants testimony no matter when it is elicited. No difference between direct and cross, as long as the questions put to the defendant are plainly within the scope of the direct examination. Rule: Illegally obtained evidence can be used to impeach a defendants testimony on cross-examination, as long as the questions put to the defendant are within the scope of the direct examination. (US v. Havens) Impeachment of Defense Witnesses: James v. Illinois = Court refused to extend the impeachment exception to allow impeachment of defense witnesses with illegally obtained evidence. Opinion found a compelling distinction between impeachment of the defendants own testimony and that of defense witnesses. As applied to the defendant, the exception penalizes him for committing perjury. But if expanded, the fear of impeachment of ones witnesses would discourage defendants from presenting the testimony of others. o A defendant can carefully limit his own testimony to avoid reference to certain matters, but a defendants witnesses cannot be so easily controlled. A better rationale is that defense witnesses do not need to this incentive not to commit perjury. Defendants do, since they have much more on the line. Rule: However, illegally obtained evidence cannot be used to impeach a defense witness. (James v. Illinois)

PART THREE: CONFESSIONS Thre Constitutional provisions re: admissibility of confessions: Due Process Clauses of 5A and 14A Sixth Amendment (right to counsel) Fifth Amendment (privilege against self-incrimination) o Only applies to statements made during custodial interrogation, unless the suspect makes a knowing, voluntary waiver after receiving warnings. I. The Voluntariness Test (651-70) The Involuntariness Test: Brown v. Missippi = First confessions decision made under Due Process Clause Court held that Due Process Clause that a confession obtained through torture was inadmissible under the Due Process Clause (Its not clear if this is because 5A had not yet been incorporated, or if this case uses DPC to incorporate it) Pre-Miranda Cases: Circumstances Relevant to Involuntariness Personal characteristics of the accused, such as youthfulness, lack of education, mental retardation, insanity, or even legal sophistication Physical deprivation or mistreatment, e.g., denial of food, sever brutality, sleep deprivation Psychological pressures, e.g., threats, humiliation, isolation (such as incommunicado confinement) Warnings, i..e, whether accused was aware or had been apprised of his right to remain silent and the possibility of obtaining a lawyer Rule: When Miranda does not apply, courts employ a voluntariness test to determine whether the confession was coerced, looking at these factors: Personal characteristics of the accused, such as youthfulness, lack of education, mental retardation, insanity, or even legal sophistication Physical deprivation or mistreatment, e.g., denial of food, sever brutality, sleep deprivation Psychological pressures, e.g., threats, humiliation, isolation (such as incommunicado confinement) Warnings, i..e, whether accused was aware or had been apprised of his right to remain silent and the possibility of obtaining a lawyer Criticism of the Involuntariness Test: Required case-by-case analysis of totality of the circumstances Test was very indeterminate; hard for courts and law enforcement officers to follow Increasing Emphasis on Assistance of Counsel:

Spano v. New York = Justices were more concerned by the fact that the D had been indicted and was refused permission to see his attorney than they were about the voluntariness of his confession. Use of involuntary confessions is abhorred by society, not just because theyre unreliable, but because we believe that police must obey the law while enforcing the law. Focused on Sixth Amendment right to counsel to hold inadmissible. Continuing Relevance of DPC: Because Sixth Amendment does not apply until the suspect has ben formally charged, and because Miranda applies only durng custodial interrogation, there are some cases in which the totality of the circumstances voluntariness test is a suspects only protection from potentially coercive police practices. o Can also come up if Miranda has been waived (right to be free from coercion, though, cannot be) or if an exception to Miranda applies. Modern Due Process Cases: Rarely does court find that a suspect confessed involuntarily, but one standard might be: any confession produced by interrogation pressures that a person of reasonable firmness, with some of the Ds characteristics, would not resist. o Alternately, other view is that involuntariness only results where police tactics are such as would force an innocent person to confess. Deception and False Promises by the Police: Bram says a confession induced by any direct or implies prmises, however slight, must be confessed; but Court has not followed this language. 2d Cir: Confession was voluntary despite police lies about evidence, as well as promises that the D would receive psychiatric help. Courts routinely permit all sorts of devious police tactics. False Documentary Evidence: Florida court found that a confession arising from fabricated evidence indiciating that DNA results had come from the D to be involuntary. o Court said there is an intrinsic distinction between false verbal assertions and manufactured documentation. Rule: Verbal deception by the police is not considered coercive enough to violate Due Process, but manfactuing false documentation may be.

Honest Promises v. False Promises: The government is not forbidden to buy information with honest promises of consideration of cooperation. Just because an officer makes a promise during an interrogation doesnt mean its a false promise. However, there are Due Process concerns when the officer makes a specific promise and then it isnt kept. Threats of Physical Violence: Arizona v. Fulminante = Court found that a confession made by a prisoner to an informant, when made to ward off a threat of physical violence, was coerced. Court applied a totality of the circumstances test and held that Fulminante had confessed because of his misplaced hope for protection from prison violence A finding of coercion need not depend on actual violence by a government agent; a credible threat (from whatever source) is enough. Focus on Police Misconduct: Colorda v. Connelly = Court held that due process focus is primarily on police misconduct, not the suspects state of mind. D went to police and confessed, but the next day, he appeared disoriented and stated that voices had told him to confess; later, D argued that his confession should be suppressed because the voices told him to dit, so it wasnt voluntary. Court said they were admissible because the police had applied no pressure to the D to confess. Thus, there was no coercive activity of the state. Supppressing a statement in the absence of police coercion would serve absolutely not purpose in enforcing constitutional guarantees (no deterrence effect). Notes: After Connelly, courts have found no due process violation when, for example, a Ds mother forced him to confess; the D was drunk, on drugs, emotionally vulnerable, etc. Connelly stands for that the proposition that no confession violates due process (and is thus inadmissible) as long as whatever it was that destroyed the Ds power of choice was not police conduct.

Problems with a Test Based on Free Will: Posner says no: taken seriously, would require exclusion of almost all confessions. Coercion of Witness Statements:

Does D have right to complain about a coerced confession by another that is then used against him? Courts are split on this. Posner says it should depend on reliability.

Coercive Interrogation of Suspected Terrorists: If person is charged with a terrorism-related crime in civilian court, Due Process Clause is fully applicable. Somewhat unclear re: Guantanamo prisoners. 2. Fifth Amendment Protections (670-90) Sixth Amendment protection does not begin until there is a criminal prosecution, so 6A cannot be applied to the investigatory stage, before the D has been formally accused of a crime. Miranda v. Arizona: Malloy v. Hogan = Court ruled that 5A priviled against self-incrimination is applicable to the states through the 14A. Threhold for the official pressure on a suspect that required to trigger 5A protection is substantially less than the pressure required to trigger due process protections. Miranda v. Arizona = Holding: The prosecution may not use statements (exculpatory or inculpatory) stemming from custodial interrogation of the D unless the prosecution demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. o Custodial interrogation = questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. o The following measures are required as procedural safeguards, unless other fully effect means are devised to serve this purpose: Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he makes may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. D can waive these rights, but waiver must be voluntary, knowing and intelligent. And if he indicates in any manner and at any stage of the process that he wants to consult with an attorney, there can be no questioning. Similarly, if he is alone and indicates that he does not wish to be interrogated, police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering further inquiries.

Facts: In each of the cases, D was questioned by police, detectives, or prosecutors in a room in which they were cut off from the outside world. All elicited oral admissions and signed confessions. Court is concerned with interrogation atmosphere and the evils it can bring. o In each case, D was thrust into an unfamiliar atmosphere and run through meancing police interrogation procedures. o These practices are at odds with the principle that the individual may not be compelled to incriminate himself. Compulsion inherent in this ssetting must be dispelled or no Ds statement can truly be the product of his free choice. To combat these pressures, the accused must be adequately and effectively apprised of his rights and his exercise of those rights must be honored. Constitution does not necessarily require adherence to any particular solution for this problem. But other procedures must be at least as effective at informing Ds and assuring a continuous opportunity for them to exercise those rights. At the outset, if a person is custody will be subjected to interrogation, he must be informed that he has the right to remain silentneeds to be made aware of this right. (goes to intelligent) o Officials cannot make any assumptions about whether D knows this based on certain characteristics. o No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Anything you say can be used against you deisgned to make D aware of the consequences of forgoing his privilege and serves to make the individual more aware that the adversary process has begun. Presence of counsel can mitigate against police deception and coercion; the failure to ask for a lawyer does not constitute a waiver of this right. D must also be advised that if he cant afford a lawyer, one will be appointed for him; dont want indigent Ds to think this right to remain silent does not apply to him. Once warnings have been given, if the D indicates in any manner, at any time prior to or during question, that he wishes to remain silent, the interrogation must cease. If the interrogation continues without a lawyer and a statement is taken, a heavy burden will be placed on the govt to demonstrate that D knowingly and intelligently waives these privileges. Valid waivers will not be presumed from silence of D afte warnings are given or from the fact that a confession is eventually obtained. Even if the individual answers some questions or gives some information on his own prior to invoking his right to remain silent, that doesnt count as a waiver. These warnings are prerequistites to the admissibly of any statement made by a defendant. Statements that are meant to be exculpatory cannot be used either, for, e.g., impeachment purposes.

Inquiries of people not in custody and general on-the-scene question are not affected by this holding because we always want to encourage cooperation. Dissent: Concerned about the presence of the lawyer at the stationhouse, who may become ab obstacle in truthfinding.

Analysis of Miranda: Miranda brings 5A into the stationhouse; special because it held that police interrogation could not longer be treated as a world apart. Judicial Review and the Education of the Public: One purpose of Miranda is to create a prophylactic rule to aid in judicial review: if the warnings are not given, the confess is irrebuttably presumed to be tained. If the warnings are given, the confession still may not be voluntary, but courts have some confidence that it might not have been. o But courts are still dependent on testimony/testilying by police, etc. Part of Mirana involves educating suspects about the real choice they have to make in the interrogation process. The Impact of Miranda: Conviction rates of law enforcement have not fallen after Miranda, although in some places the absolute number of confessions has gone down. But there is some scholarship that indicates it has been costly. And Miranda is an administrative burden, especially on courts. Mirandas Costs on Habeas Review: Withrow v. Williams = Court held that Miranda claims can be pursued on collateral review of a state court conviction. Courts justification is that prisoners would just make the same argument under due process, which would require the totality of the circumstances test. The Miranda Compromise: Miranda provides a right to silence and to counsel, but the decision whether to invoke these rights or waive them is made by the suspect, in the same coercive atmosphere that the Miranda Court was concerned about. o Court could have said the right to an attorney during interrogation was nonwaivable, but they didnt. Alternatives to Miranda: Reform efforts and lack of experimentation re: Miranda have been almost nonexistent. One option would be to videotape confessions, which has been shown to reduce claims of coercion. o Problem is that there are no clear substantive requirements against which to test the police behavior that video will reveal. III. Post-Miranda Questions

Congress attempted to overrule Miranda with a law that said that a confession is admissible if voluntarily given, and voluntariness is to be determined on the basis of all the circumstances surrounding the giving of the confession (including warnings and counsel, but these are not themselves dispositive).

A. Is Miranda a Constitutionally Based Rule? (691-96) Dickerson v. United States = Question: Whether the Miranda Court announced a constitutional rule or merely exercised its supervisory authority to regulate evidence in the absence of congressional discretion. Holding: Miranda, as a constitutional decision of the Court, may not be overruled by an act of Congress. Thus, Miranda and its progeny still govern the admissibility of statements made during the custodial interrogation. Discussion: Given the statutes express designation of voluntariness as the touchstone and omission of any warning requirement, Congress clearly intended to overrule Miranda. Court has supervisory authority over federal courts, and can use that authority to prescribe rules of evidence and procedure, but Congress can modify those. o Congress cannot legislative supersede decisions interpreting and applying the Constitution. Court rejects arguments that, because there are exceptions to Miranda and because it has been describe as a prophylactic, it is not enshrined in the Constitution. o Miranda applied this rule to proceedings in state courts, and has consistently been applied to state courtssomething beyonf the Courts supervisory power. o Court has made exception, but as also broadened its application, and after all, no constitutional rule is immutable (or covers any possible circumstance). Congresss law is not an acceptable alternative to Miranda (as mentioned in that opinion), since it eschews the warnings and provides inadequate administratie remedies. Court doesnt address head-on the question of whether Miranda warnings are required by the Constitution, says its enough that Congresss approach is not sufficient. Scalia dissent: Not grounded in precedent; is really about hostility toward the act of confession per se, not compelled confessions; Court is offending separation of powers by disregarding congressional action. o Judicial burden of voluntariness test hasnt been eased, based on our caseload. B. Exceptions to Miranda for Impeachment, Fruits and Public Safety (699-722) If an exception to Miranda applies, a confession made during custodial interrogation is admissible even if Miranda warnings were not given or the suspects invocation of his rights was not respected.

1. Impeaching the Defendant-Witness Harris v. New York = Ds statements were not admissible as substantive evidence under Miranda because he had not received warnings, but he took the stand in his own defense. He was asked on cross about the statements hed made. Court held that there is an exception to Miranda for impeachment purposes. o Possibly because of cost-benefit balance (benefits of this evidence are greater than costs, since theres already significant deterrence) o Miranda shield is not a license to use perjury as a defense. Rule: If a defendant takes the stand in his own defense, statements made during his interrogation may be used to impeach him. (Harris v. New York) Note that impeachment instructions are very difficult for juries to follow, and they may use this as evidence of guilt, but if D does not take the stand, chance of conviction increases. Involuntary Confessions and Impeachment: Mincey v. Arizona = Court distinguished Harris and held that if a confession is involuntary (as opposed to just Miranda-defective), it cannot be admitted even for impeachment purposes. Due Process Clause opersates to prohibit these for any purpose. Impeachment with Prior Silence: Doyle v. Ohio = D was silent, but then at his trial, gave an exculpatory story he had not told to the police. On cross, asked why he had not told the police this. Court held that after Miranda warnings are given, Due Process Clause prohibits the government from using the Ds silence against him, even for impeachment purposes. Anderson v. Charles = A person who waives his after receiving Miranda warnings and speaks to police can be asked about those statements for impeachment purposes. Court held that the Miranda promisethat silence will not carry a penaltyis inoperative where the D chose to speak. Pre-Arrest Silence: C. What is custody? (722-29) What does it mean to be in custody? When is a subject being interrogated? Rule: If the defendant who confesses is not in custody, Miranda does not apply, and the admissibility of the confession depends on whether it was given voluntarily under the totality of the circumstances.

This is because both the presence of a custodial setting and official interrogation is required to trigger Miranda.

Arrest is custody: Rule: The test for custody is whether a person is deprived of his freedom of action in any significant way. (Miranda) Orozco v. Texas = Armed policemen entered Ds bedroom at 4 am and tried to elicit incriminating information from him. One of the officers testified that the D was under arrest and not free to leave his room. Rule: If a person is arrested, he is in custody. Beckwith v. United States = Court held no custody when two IRS agents came to Ds house, were invited in, and sat at the Ds dining room table for a discussion. Although D was focus of investigation, he was not in custodial situation. Miranda requires an inherently coercive atmosphere. Objective Test: Stansbury v. California = Court held that an officers subjective and undisclosed view concerning whether the person being interrogated is a suspect is irrelevant to the assessment of whether that person is in custody. If the person is in a coercive environment, it doesnt matter if the officer only thinks theyre, say, a potential witness. Only if the officers views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his freedom to leave do they matter to this inquiry. Personal Characteristics Irrelevant: Yarborough v. Alvarado = D argues that he was in custody because of his youth and inexperience with the criminal justice system. Parents brought D to the police station at the request of the police. Court held that a suspects youth was irrelevant in determining whether he is in custody. Court relies on Stansbury to say that Miranda is determined by an objective test. Prisoners in Custody: Mathis v. United States = D was interrogated in jail. Court held that although D was in jail for reasons unrelated to this investigation, he was in custody under the circumstances.

Note: subsequent cases have refused to read Mathis as establishing a per se rule that prisoners are always in custody. Interrogation at the Police Station: Oregon v. Mathiason = Court ruled that an individual questioned at a police station is not per se in custody. D had been invited down over the phone, and was told he was not under arrested. He went down to the station voluntarily, and even left the station without hindrance after he confessed. Note: It could be arged that Mathiason encourages suspects to be unccoperative. California v. Beheler = Court extended Mathiason to find that suspect was not in custody when he agreed to accompany officers to the station gfor questioning. D was told he was not under arrest and was released after confessing. Meetings with a Probation Officer: Minnesota v. Murphy = Court held no violation when a probation officer called Murphy, a probationer, to the officer to question him about a rape/murder. Murphy had admitted the offenses to a counselor as part of the treatment prescribed as a condition of probation. Court say D was not in custody even though he was required to meet with the officer and the officer sought incriminating information. Warnings are not required simply because an investigation has focused upon a suspect. Terry Stops: Berkemer v. McCarty = Court held that Terry stops are not custodial for Miranda purposes. These are of a brief duration; questioning is limited; and detainee is not obliged to respond. Terry stops are comparatively nonthreatening. Summary on Custody: Relevant Factors One lower courts approach: Whether the suspect was informed that the questioning was voluntary, that he was free to leave/request officers to do so, or that he was not considered under arrest; Whether the suspect possessed unrestrained freedom of movement during questioning; Whether the suspect intitiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; Whether strong arm tactics or deceptive strategems were employed during questioning;

Whether the atmosphere was police-dominated; and Whether the suspect was placed under arrest at the termination of the questioning.

Anothers approach: Language used to summon D Extent to which D is confronted with evidence of guilt Physical surroundings of the interrogation Duration of the detention Degree of pressure applied to detain the D 2. Relevance of the Age of a Child in the Custody Inquiry: J.D.B. v. North Carolina = - Question: Whether the age of a child subjected to police questioning is relevant to the custody analysis of Miranda. - Holding: Because children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave, officers and courts must consider the childs age when performing the Miranda custody analysis. - Facts: JDB was a thirteen-year-old, suspected of some home robberies. Uniformed officer removes him from class and takes him to a school conference room; does not attempt to contact his guardian; questions him for 30-45 minutes. JDB did not receive Miranda warnings and was not informed that he was free to leave. Officer told him that one possibility was him ending up in a juvenile detention center before court. At this point, JDB confesses. - Discussion: o The pressure of custodial interrogation is more acute when the subject of that interrogation is a juvenile. o Miranda measures are required only where there has been such a restriction on a persons freedom as to render him in custody; this is an objective inquiry that looks to the circumstances of the interrogation. Inquiry does not look at the subjective views harbored by either the officer or the person being questioned; test involes no consideration of the actual mindset of the subject. o In other contexts where the law uses a reasonable person standard, it still turns on what the objectively reasonable child would do. o The effect of the schoolhouse setting cannot be disentangled from the identify of the person questioned. o As long as the childs age is known to the officer (or objectively apparent), it can be included in this inquiry. Gets a bit tricky when you approach 18, though. - Dissent: Courts approach gets rid of the clear rule established by Miranda. Rule: Because children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave, officers and courts must

consider the childs age when determining whether the suspect was in custody for purposes of Miranda. (JDB v. North Carolina) D. What is interrogation? (729-39) Miranda requires both: o Custody; and o Interrogation. Rule: Volunteered statements or threshold confessions are not barred by the fact that they were made without Miranda warnings. Rhode Island v. Innis: Facts: o D was identified as the perpetrator and later, seen on the street and arrested. He was given his Miranda rights, and the D said he wanted to speak with a lawyer. o During car ride to station, officer initiates a conversation about how hed hate for a handicapped child (at a nearby school) to find the weapon and accidentally hurt themselves. o D interrupts and says the officers should stop the car so he can show them where the gun is. Only a few minutes had passed at this point. Question: Whether D was interrogated by the officers in violation of his invoked Miranda rights. Discussion: o Miranda says that all interrogation must cease when the D asks for a lawyer. o Custodial interrogation = questioning initiating by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedome of action. But Miranda applies to more than questioning; also references an interrogation environment that would subjugate the individual to the will of his examiner, thus undermining the privilege against self-incrimination. o Procedural safeguards are not required for all police statements, just those statements that constitute interrogation, i.e., reflect of measure of compulsion above and beyond that inherent in custody itself. Holding: o Miranda is triggered anytime a person in custody is subjected to either express questioning or its functional equivalent, i.e., any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this focuses primarily on the perceptions of the suspect, not the intent of the police. But police can only be held accountable for foreseeable results of their words or actions.

Facts of this case: o D was not interrogated within meaning of Miranda. o There was no interrogation; just a dialogue between two officers to which no reponse from D was invited. o Nothing in the record to suggest that the officers were aware that the D was peculiarly susceptible to an appeal concerning the safety of handicapped children. Stevenss dissent: o Court test creates an incentive for police to ignore a suspects invocation of his rights to make continued attempts to extract incriminating information.

Applications of Innis: Arizona v. Mauro = Court found no interrogation when suspect confessed to his wife in the presence of a police officer who recorded the statements. D had invoked his rights, but his wife asked to speak to him. When she did, officers said one had to be there to listen, and he placed a tape recorder in plain view. Court said there was no evidence that officers sent his wife in for the purpose of eliciting statements; didnt matter if they hoped thats what would happen. Appeals to the Welfare of Others as Interrogation: Would an average suspect be affected by an appeal based on possible harm to a loved one? Theres a difference between police statements that can be expected to produce a response and statements that can be expected to produce an inculpatory response. Confronting the Suspect with Incriminating Evidence: Edwards v. Arizona = Court held that D had been interrogated when officers played him a recorded statement of his associate that implicated D in the crime. Note that courts have not been uniform in finding interrogation whenever a suspect in custody is confronted with incriminating evidence. Direct v. Indirect Statements: In Innis, fact that officers were ostensibly talking among themselves cut against a finding of interrogation. Reasoning is that comments not even directed at suspect are less provocative and less likely to produce an incriminating response. Questions Attendant to Custody: Definition of excludes questions attendant to custody; thus, officers can ask custody-related questions without Miranda warnings (and answers are admissible). This is the routine booking exception.

Pennsylvania v. Muniz = D was stopped for drunk driving and brought to a booking center, where he was asked his name, address, etc. D stumbled over his answers and gave incorrect information; these responses were admissible at his trial as evidence of drunkenness. Booking exception exempts from Miranda questions to secure the biographical date necessary to complete booking or pretrial services. o Booking exception does not apply if such questions were designed to elicit incriminatory admissions. Rehnquists concurrence: Ds answers were nontestimonial, and thus, not protected by the Fifth Amendment since they were used at trial only to show that Ds mental processes were not operating properly. Determining the Scope of the Booking Questions Exception: Lower courts have looked to objective factors to determine when officers questions are designed to elicit incriminatory admissions (as opposed to biographical info). o Consider whether the question is asked by an officer who routinely books suspects and whether officer would need to know that information for booking purposes. Were suspects answers documented in arrest-related paperwork? Court has held that the question, Whats your name? is always within the booking exception, so a false answer can be used at trial. Questions Pertinent to Custodial Procedures and Tests: In Muniz, Court confluded that Ds responses to officers explanations of the sobriety tests he would be given were admissible because the instructions were not likely to be perceived as calling for any verbal response. o They were limited and focused and necessarily attendant to legitmate police procedure. After Muniz, explanations concerning procedures such as fingerprinting, transportation, inventorying, etc will probably not be considered interrogation. E. Undercover Activity (739-40) Illinois v. Perkins = Court held that Ds unwarned statement, given to an undercover officer, was admissible. An undercover officer was placed as Ds cellmate (he was in jail on charges unrelated to the suspected murder), and the officer asked D if he had ever killed anybody. o D said yes and described the murder. Miranda does not protect suspects from boasting about their criminal activities in front of people they believe to be their cellmates; Miranda is concerned with the pressures upon a suspect in a police-dominated atmosphere.

o When the suspect doesnt even know hes talking to a police officer, the concerns animating Miranda are not present. In concurrence, Brennan suggests that this could violate Due Process.

Rule: If there is an undercover ingestigation, Miranda is completely inapplicable. F. Foreigners interrogated abroad (741-43) To what extent are US officers bound by Miranda when interrogating suspects abroad? o Usually occurs in the terrorism context. In re Terrorist Bombings (2d Cir.) = 2d Cir. concluded that where a suspect has no entitlement to counsel under the law of the foreign land, it would be misleading to inform him falsely that he was guaranteed the presence or appointment of an attorney. Court also says official have no affirmative duty to urge local officials to provide suspect with counsel. o Miranda requires govt agents to be the conduitrs of information to suspects, but not to act as their advocates before foreign authorities. D was interrogated in by US investiagtors in Kenya; essentially gave him Miranda, but said that because they werent in the US, they couldnt ensure that a lawyer would be appointed before any questioning. Assuming Miranda is applicable to foreign interrogation at which US official participate, the warning/waiver framework has been applied by courts flexibly to accommodate the exigencies of locale conditions. G. Waiver of Miranda rights 1. In general (743-52) D can waive Miranda rights only if, under all the circumstances, he does voluntarily, knowingly, and intelligently. o So its going to be a question of fact in every case. Rule: Valid waiver will not be assumed from silence after the warnings are given, nor merely from the fact that a confession is ultimately obtained. Knowing and voluntary: Moran v. Burbine = Court held that:: D must have voluntarily relinquished the right (product of a free and deliberate choice rather than intimidation, coercion, or deception). D must have waived the right with a full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it. If, for example, D says he understands his rights but immediately confesses, thats probably a knowing and voluntary waiver. Relationship of Waiver Standards to the Test for Voluntary Confessions:

Even if Miranda warnings are given, a confession can still be coerced under traditional due process standards. o Even if person makes a valid waiver, subsequent confession can still be involuntary.

Colorado v. Connelly = Court held that coercive police activity is a prerequisite to a finding that a confession is involuntary. Understanding the Miranda Warnings: Several courts have held that persons who are deranged or mentally defective cannot knowingly and intelligently waive their Miranda rights. Similarly, courts have held that a waiver might not be knowing and understanding if the suspect could not understand the Miranda warnings due to some language barrier. Subjective or Objective Test for Understanding the Warnings? 9th Cir. has held that the test for knowing waiver is subjective, i.e., court asks whether the suspect actually understood the Miranda warnings. Conditional waivers: Connecticut v. Barrett = After receiving Miranda warnings, D said he would talk, but not give a written statement. Court held that he had knowingly and voluntarily waived his rights; police had complied with his conditions. Another question of limited waiver: D will talk about X, but not Y. 9th Cir. has held that D can invoke right to remain silent on all issues but one. Information Needed for an Intelligent WaiverThe Scope of the Interrogation: Colorado v. Spring = Court considered how much information a suspect must have to make a knowing and intelligent waiver of Miranda rights. D was interrogated about one crime, then another he was also suspected of; he gave a complete confession to both. He argued that he had not waived his rights with regard to the latter because he had not been warned that he would be questioned about this crime. Court rejects the argument that the warning must be tied to planned subject matter of interrogation. Courts reasoning: o Constitution does not require a suspect to know and understand every possible consequence of a waiver. o D knew he had right to stop talking at any point. o Silence on the part of the police is not trickery. Information Needed for an Intelligent WaiverThe Inadmissibility of a Previous Confession:

Oregon v. Elstad = Court rejects argument that, after giving a defective confession, D is unable to give a fully informed waiver of his rights because he was unaware that his prior statement could not be used against him. D gave a Miranda-defective confession, then received warnings, signed a waiver, and made another confession. D argued that the waiver before this second confession was not knowing. Court rejects this argument; police did not need to construe difficult legal questions for D. Court has never embraced the theory that a Ds ignorance of the full consequences of his decisions vitiates their voluntariness. Information Needed for an Intelligent WaiverEfforts of a Lawyer to Contract the Suspect: Moran v. Burbine = Court considered whether basis warnings were sufficient to establish knowing and intelligent waiver. D did not request an attorney, but his sister attempted to retain one. The attorney received assurances that D would not be questions until the next day, but interrogation occurred that afternoon, and he gave inculpatory statements. Court held that neither police conduct nor attorneys efforts invalidated the waiver. Events occurring outside the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. o The additional information might have been useful to D, but police werent required to convey it. State of Mind of Police Irrelevant: Burbine indicates that the fact that the police acted deliberately to deprive D of information did not affect waiver. State of mind of police officer is irrelevant to question of intelligence and voluntariness; Ds decision to speak was made with full awareness and comprehension of all the information Miranda requires police to convey. Role of Counsel Under Miranda: Court rejected argument that Miranda prohibits police from deliberately deceiving counsel or from denying counsels request to see the suspect. But Miranda does not require police to treat the attorney a certain way, since their treatment of him has no relevance at all to compulsion of the D during the interrogation. o Counsel has a role only after the suspect has invoked the right. No Requirement To Inform the Suspect of Counsels Efforts: Court rejected argument that Miranda requires police to inform the suspect of an attorneys efforts to reach him. Court reasoned that Miranda works because it is easy to apply.

Extra warnings would be too costly to law enforcement interests, and thus inconsistent with Miranda compromise. o Admissions of guilt are essential to societys compelling interest in finding, convicting, and punishing those who violate the law. o Miranda gives Dbut not lawyerthe power to exert some control over the course ofo the interrogation. Miranda holds that full comprehension of the right to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process. Burbine dissent argues that this condones incommunicado interrogation and police deception

Dissent:

Abstract Right to Counsel v. Concrete Offer of Assistance: One state court has said theres a difference between a suspect forgoing the exercise of a conceptual privilege (having an attorney present) versus declining a concrete offer of assistance. Thus, a decision to forgo the abstract offer does not embody an implied rejection of a specific opportunity to confer with a known lawyer. 2a. Resumption of Interrogation After Invocation of Silence (752-56) Waiver after Invocation of Miranda Rights: In most waiver cases, suspect never invokes his right, and the govtt argues that this was a waiver. o Sometimes, however, suspect first invokes his rights and later confesses. Something changed his mind, and government must show that this change of mind came from the suspect, not police harassment. Because Miranda allows D to invoke two rightssilence and counselrules on waiver differ depending on which right is invoked. Invocation of the Right to Silence: Michigan v. Mosley = Court holds that Miranda is not a per se bar to resumption of questioning. D is arrested for robberies, given Miranda, but he says he does not want to discuss them. He is given Miranda warnings again and asked about a murder; he signs a waiver form and makes an incriminating statement. Court held that admission of that statement did not violate Miranda. Miranda does not mean that interrogation is forever barred simply because the D invoked this right to slience at some point; but his right to cut off questioning must be scrupulously honored. Court says this was not a case where they failed to honor his decision; they immediately ceased interrogation, and resumed questioning only after the passage of a significant amount of time and provision of fresh warnings.

Court says it will not tolerate repetitive and contious attempts to interrogate a D who wants to remain silence.

Scrupulously Honoring an Invocation of Silence: Most important factor in this inquiry is whether the officer gave the suspect a cooling off period after he invoked the right to silence, i.e., there must be some break in the interrogation. Multiple attempts to get the suspect to speak are considered problematic; however, if the officers give fresh warnings when they approach the suspect again, this cuts in favor of a finding of waiver. When Is the Right to Silence Invoked? Davis v. United States = Court held that police questioning a suspect can continue the interrogation when the suspect has made an ambiguous or equivocal invocation of the Miranda right to counsel. Police are not required to clarify suspects intent; if its ambiguous, they can assume no invocation. One lower court, relying on Davis, has held that officers are not required to scrupulously honor the invocation of the right to remain silent unless that invocation is unequivocal. Custodial Interrogation Requirement: Mosley only applies if the Ds invocation of his right to remain silent occurs in the context of custodial interrogation. 2b. Major Limitations on Rules Governing Invocation of Rights and Resumption of Questioning: Right to Silence Must Be Clearly Invoked; Waiver Can Be Implied from the Confession Itself; and Interrogation After Warnings Is Permissible So Long as Waiver Is Ultimately Found: Berghuis v. Thompkins = - Facts: D is arrested on suspicion of crime a year after it happens. Interrogation lasted three hours; took place in a small room. D was given a form that had Miranda warnings on it, and these were read aloud to him. He was asked to sign, but refused; its disupted whether he verbally confirmed his understanding, though. o At no point during interrogation does D say he wants to remain silent or speak with an attorney, but he is mostly silent, giving only very limited answers. After about three hours, he is asked if he prays for forgiveness from God for what he did, and he says yes. - Holding: A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. - Discussion:

o Court rejects Ds arguments that he invoked his right to remain silent by not saying anything for a sufficient period of time; o D must invoke this right unambiguously. o Waiver can be established even absent formal or express statements of waiver. o Government must show voluntariness and intelligence by preponderance of the evidence. o Where the prosecution shows that a Miranda warning was given and understood by the accused, an accuseds uncoerced statement establishes an implied waiver of the right to remain silent. o Miranda rights can be waived through means less formal than a typical waiver on the record in a courtroom. o Police are not required to rewarn suspects from time to time. o No evidence that Ds statement was coerced; 5A is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion. o Police do not have to obtain an express waiver of Miranda rights before proceeding with interrogation. o After giving Miranda warnings, police may interrogate a suspect who has neither invoked nor waived his or her Miranda rights. o Court declines to extend Edwards Dissent: Majority is requiring a clear statement rule for waiver. o Inculpatory statements themselves are not sufficient to establish waiver; Court made this clear in Miranda. o There are sound reasons to require more evidence of waiver than inculpatory statements themselves. Requiring proof of a course of conduct beyond the inculpatory statements is critical to ensuring those statements were voluntary. o Todays decision invites police to question a suspect at length, notwithstanding his persistent refusal to answer questions, in the hope of obtaining a single inculpatory response.

Rule: Like the right to counsel, the right to remain silent must be invoked unambiguously by the suspect. (Berghuis v. Thompkins) Rule: Government is not required to demosntrate that a waiver of Miranda rights was express; waiver can be implied from Ds silence, coupled with an understanding of his rights and a course of conduct indicating waiver. (Berghuis v. Thompkins) Rule: Police do not have to obtain an express waiver of Miranda rights before proceeding with interrogation. (Berghuis v. Thompkins)

3a. Resumption of Interrogation After Invocation of Right to Counsel (756-67) Invocation of the Right to Counsel: Edwards v. Arizona = Court held that when D invokes his right to have counsel present duringcustodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation. Holding: The D, having expressed his desire to deal with police only through counsel, is not subject to further interrogation until counsel has been made available to him, unless the accused himself initates further communication, exchanges, or conversation with the police. Relationship Between Edwards and Innis: Edwards a suspect cannot waive the right to counsel after he invokes it, unless he initiates the conversation. o However, if police-renewed contact does not rise to the level of custodial interrogation, Miranda (and thus Edwards) are inapplicable. Defining Initiation: Under Edwards, D has to initiate further communication for there to be a waiver. Oregon v. Bradshaw = D invoked his right to an attorney, but then asks, Whats going to happen to me now? Officer tells D that he shouldnt be speaking to them unless he wants to, and then officer suggests that D take a lie detector test. Following new warnings the next day, he takes one, and then admits to the crime. Court found that D had initiated the contact after invoking his rights, then made a knowing, voluntary waiver. o D initiated further conversation, btu there will be circumstances where this kind of bare inquiry will not be held to intiate any conversation or dialogue (such as a resut for a drink, to use the phone, etc.), because these do not demonstrate a desire to open up a more generalized discussion reglating to the investigation. o Here, D evinced a willingness and a desire to discus the investigation; his question was not a necessary inquiry arising out of the custodial relationship. Two-part test to determine whether D waived his rights: o Bright-line prophylactic safeguard of the suspect-initiation requirement; o Totality of the circumstances test of knowing and voluntary waiver. Applications of Bradshaw: Lower courts have followed view that any ambiguity in whether the suspect expressed an intent to reopen the dialogue should be construed in favor of finding an initiation.

Ambiguous Invocation of the Right to Counsel: If there is no invocation, then there is no initiation requirement, and the analysis reverts to whether D knowingly and voluntarily waived. Davis v. United States = Court held that a suspect must clearly and unequivocally invoke the right to counsel to trigger Edwards protections. If ambiguous or unequivocal, police questioning can continue. Maybe I should talk to a lawyer not clear enough. Rationale under Edwards is that police must respect Ds wishes, but when they do not know his wishes, stopping interrogation would hinder law enforcement. Court declines to adopt a rule requiring officers to ask clarifying questions after ambiguous statement, though it would be good police practice. Consequences of Explicit Invocation: Smith v. Illinois = Court concluded that, where nothing about the request or the circumstances leading up to it would render it ambiguous, all questioning must cease. Ambiguous statements that come after a clear invocation are irrelevant; they do not undo the clarity of that statement. Unrelated Crimes: Arizona v. Roberson = Court held that Edwards does not allow officers to initiate interrogation on crimes other than the one for which the suspect invoked his right to counsel. Such invocations are not offense-specific, and they prevent police-initiated interrogation on any crime. To a suspect who has indicated his inability to cope with the puressures of custodial interrogation by requesting counsel, any further interrogation without counsel having been provided would exacerbate the compulsion theyre already feeling. Waiver After Suspect Has Consulted with Counsel: Minnick v. Mississippi = Court held that Edwards protection continues even after the suspect has consulted with an attorney; thus, police cannot restart interrogation after counsel has left. Police-initated interrogation after an invocation of counsel can only occur if counsel is actually present. This rule guarantees that suspects will not be badgered by police officers and protects them from police coercion. A single consultation with an attorney does not remove the D from persistent attempts by officials to persuade him to waive his rights. Which Constitutional Right to Counsel Is Invoked? D has two rights to counsel: o Miranda right to counsel; and

o Sixth Amendment right to counsel. McNeil v. Wisconsin = Court held than a D who is arraigned and asks for counsel is invoking his 6A right to counsel, not his Miranda right to counseland theres a difference in the protections each provides. Edwards initiation requirement is a protection available only if Miranda rights are invoked. In this case, D invoked right to counsel at his initial appearance before a judicial officer; afterward, police initiate questioning; he waives his Miranda rights and confesses. Edwards requires, at a minimum, some statement that can reasonably be construed to express a desire for an attorney in dealing with custodial interrogation. Can Edwards Protections Be Triggered in Advance of Interrogation: Edwards protections cannot be invoked before interrogation: Justice Scalia, in a footnote in McNeil, asserts that they cannot be invoked anticipatorily in a context other than custodial interrogation. (Montejo v. Louisiana) 3b. The Requirement of Continuous Custody for Edwards Protection: Maryland v. Shatzer = - Question: Whether a break in custody ends the presumption of involuntariness established in Edwards v. Arizona. (A: Yes) - Facts: D was given Miranda rights and signed a waiver before interrogation; however, D thought he was going to be interrogated about a different crime; he says he does not want to speak without an attorney. o Investigator leaves, and two years later, a different detective comes by, explains that he wants to talk about the same crime, and obtains a written waiver of Miranda. He makes inculpatory statements. Detectives come back to give him polygraph; he signs another waiver form; makes incriminatory statements. - Discussion: o Rationale of Edwards is that once a suspect indiciates that he is incapable of undergoing custodial interrogation without counsel, any subsequent waiver that has come at the authorities behest is itself the product of compulsion. o The idea is that the pressure increases as custody is prolonged, so Edwards ensures that police dont take advantage of that mounting coercive pressure by badgering suspect into submission. o When a suspect has been released from his pretrial custody and returned to normal life before the subsequent attempt at interrogation, there is little reason to think his change of heart was coerced; hes had time to consult with family, deliberate, and he knows how to invoke this right. o Edwards applies even when subsequent interrogation pertains to a different crime, is conducted by a different law enforcement authority, and even after suspect has met with an attorney.

o A suspects return to the general prison population constitutes o 14 days gives suspect time to get life back to normal, consult with friends/family/counsel, get over pressures of custody. o Edwards presumption is only justified when coercive pressured has increased so much due to extended custody that waivers of Miranda are likely to be involuntary. Stevenss concurrence: Suspect is likely to feel that he really does not have any right to a lawyer. Until this request is answered, the pressures are the same. o And prison is different.

Rule: A voluntary Miranda waiver is not sufficient at the time of subsequent attempts to obtain inculpatory statements if the suspect initially requested the presence of counsel. (Edwards) Rule: As long as the subsequent interrogation comes 14 days after of the termination of custody, Edwards does not apply. Confessions obtained after a two week break in custody and a waiver of Miranda rights are unlikely to be compelled. (Maryland v. Shatzer) A suspects return to the general prison population constitutes a break in custody, since that lawful imprisonment does not create the kind of pressures identified in Miranda. They are returning to their accustomed surroundings. (Maryland v. Shatzer)

IV. Sixth Amendment Protections A. The Basic Rule (767-71) Court has extended some 6A protections to police-induced confessions. Massiah v. United States Facts: o Massiah and Colson were sea merchants, and drugs were found on their ship. Both were arrested and indicted, but then Colson decides to cooperate with the government. o Colson helps an agent install a recording device in his car, and then Colson talks to Massiah in that car about their crime; during this conversation, Massiah makes incriminating statements. o Massiah argues that his Fifth and Sixth Amendment rights were violated by the use of these statements that had been deliberately elicited from him in the absence of his counsel. Holding: Massiah was denied his 6A rights. Discussion: o D did not even know that he was under interrogation by the government at the time.

Notes: Because Massiah was not pressured to confess in any sense, this right must be directed at something other than police-created pressure to confess. Rationale: o Once the government has brought formal charges against an individual, the adversary relationship between the parties is established. o Once an accused chooses to retain an attorney, the government cannot try to circumvent that protection during question. Thus, Massiah is basically a constitutionalized rule of professional ethics: in advance of litigation, an adverse party can only be contacted through his lawyer.

Escobedo v. Illinois = Court experimented with extending 6A right to suspects who had not yet been formally charged. Essentially overturned by Moran v. Burbine. B. Developing the Massiah Rule (771-77) Brewer v. Williams Facts:

o Lawyer for D reiterates to police that his client is not to be questioned about the crime until he returns from consulting with another of the Ds lawyers. o Lawyer was denied opportunity to ride in car with cops and D; during this trip, D expressed no willingness to be interrogated. o However, cops knew D was deeply religious, so gave him the Christian burial speech. D took them to the body. Discussion: o Miranda right to counsel is not at issue here. o Judicial proceedings had been initiated, and officers deliberately elicited information. o Its irrelevant that the statements here were not elicitied surreptiously here, the way they were in Massiah. o Massiah holds that, once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him. Thus, D here was entitled to assistance of counsel during this conversation. o State argued that he waived the right; standard for determining this is whether there was an intentional relinquishment or abandonment. Waiver requires not merely comprehension but relinquishment, and Ds consistent reliance upon advice of counsel suggests that he did not waive. o Officer did not preference his statements designed to elicit with warnings that D had right to presence of a lawyer.

C. Deliberate Elicitation (778-80) Sixth Amendment Attaches at Formal Charge: United States v. Gouveia = Court held that prison officials did not violate 6A right to counsel of inmates when they put them in administration detention for periods of 19 and 8 months prior to their indictment. Right to counsel does not protect Ds right to pre-indictment investigation. Again, a case where the line is drawn between pre-charge and post-charge. On the Meaning of Deliberate Elicitation: Deliberate = officer must have been trying to obtain incriminating information from the accused. Lower court has held that theres no Massiah violation if the officer can plausibly argue that he was not trying to obtain said information. (Bey v. Morton, 3d Cir) o Prison official was not a state actor deliberately engaged in trying to secure information from the D for use in connection with the prosecution that was the subject matter of the counsels representation. Application of the Deliberate Elicitation Standard:

Fellers v. United States = Court found that lower court had misapplied Miranda to a Massiah case. Agents came for D after grand jury indicted him, and when they did, he made incriminating statements at his home. Court said that there was no question that the officers had deliberated elicited this information, and thus they had violated his 6A Massiah rights. D. Undercover and Continuing Investigations (780-85) Sixth Amendment is less protective in regulating confessions than the Fifth, since it only applies to people who have been formally charged. 6A is more protective than 5A when it comes to undercover tactics; 5A only applies if D knows he is speaking to an officer. Jailhouse Plant: United States v. Henry = Court held that 6A right to counsel applies to charged and incarcerated Ds questioned by informants. D made incriminating statements to a fellow inmate, who operated as a paid government informant and then testified at the Ds trial. The other inmate had been instructed by an FBI agent. Court found that the informant had deliberately elicited a confession, even though the agent had told the informant not to initiate conversations with him. o Three factors are important: Informant was acting under governments instructions; Informant was ostensibly no more than a fellow inmate; D was in custody and under indictment at the time the conversation took place. o Agent should have known that the informant would initate those conversations. D cant be held to have knowingly waived his 6A rights in this context since he did not know the other inmate was an informant. Holding: By intentionally creating a situation likely to induce the D to make incriminating statements without the assistance of counsel, government violated Ds 6A rights. Dissent: There is no constitutional support for the idea that the D has a right to have his attorney present whenever he has an inclination to reveal incriminating information. The Listening Post: Kuhlman v. Wilson = Court held that 6A was not violated when police put a jailhouse informant in close proximity to a D and the D made statements to that informant without any serious effort on the informants part to elicit the statements. Police must take some action, beyond merely listening, that is deliberately designed to elicit. Analogue is to a tape recorder; Court says theres a difference between placing a voice in the cell to encourage conversation and simply placing an ear there.

Is the Informant a State Agent? If the informant was not working for the government at the time the information was obtained from accused, there is no state action implicated by the elicitation. DC Cir has said someone who acts as an entrepreneuri.e., obtains the information, then seeks to sell itis not a state agent. Continuing Investigations: Issue: Does the 6A prohibit an officer from obtaining information from the D concerning uncharged crimes? Maine v. Moulton = D asked co-defendant to meet with him; co-defendant gets wired up and discusses the crimes with the D. Court rejects argument that, because D initiated the meeting, it was deliberate elicitation; it was still knowing exploitation by the State of an opportunity to confront the accused without counsel being present. Court also rejects the argument that statements should be admissible because police were investigating a new crime (i.e., witness tampering). Holding: Police can investigate crimes separate from the crimes charged and can use statements made by the D in a later trial for these crimes, but they are inadmissible at the trial for charges that were pending at the time they were elicited. Court rejects argument that government was not deliberate eliciting because the officers instructed the informant to limit the scope of the discussion matter. o Deliberate elicitation is found whenever officers should have known that their investigative tactic would lead to incriminating information in the absence of counsel. E. Sixth Amendment Waiver (785-93) Waiving 6A Rights After Receiving Miranda Warnings: When D receives warnings and waives his rights, the question is simply whether the waiver was knowing and voluntary. Evidence of relinquishment can be found in myriad ways, e.g., o Ds signing a waiver form; o answering some questions but not others; o showing a high level of cooperation; or o providing an extremely detailed and lengthy confession. The next question is whether the D was sufficiently informed of his rights to make a knowing waiver. Patterson v. Illinois = Court held that Miranda warnings are sufficient to inform D of his 6A rights to counsel.

These warnings tell him he has a right to consult with an attorney; have one present while hes questioned; and have one appointed if he cannot afford one.s After all, what more would you want the police to tell them? But see Faretta (where Court requires copious warnings to be conveyed to an accused before he waives his right to counsel at trial) Counsel can do a lot for you at trial, so extensive warnings are necessary so that you understand what youre giving up; in contrast, counsels role during police questioning is less complex.

Two Situtations in Which 6A Waiver Standards Might Be Different: Patterson footnote says there may be two scenarios where a valid waiver can be found under Miranda but not under 6a: o Where a suspect was not told that his lawyer was trying to reach him during questioning (valid in 5A context; invalid in 6A context) o Surreptitious conversation between an undercover police officer and unindicted suspect gives rise to no 5A violation, but once the accused is indicted, such question is prohibited by 6A Massiah. Basically, these are two cases that preclude a finding of a knowing and voluntary waiver. Indictment Warnings: Patterson leaves open whether an indicted suspect is entitled to a warning that he has been indicted before he waives his 6A right to counsel. Lower courts have held that an indictment warning is not required. Waiving the 6A Right to Counsel After Invoking It: Michigan v. Jackson = D formally requests counsel at arraignment, but is later interrogated by police; he did not initiate contact. Court held held that D had not knowingly and voluntarily waived 6A right to counsel, and that Edwards governs 6A waivers. Overruled by Montejo v. Louisiana. Rule: If a charged D invokes his 6A rights (typically at an arraignment or other hearing), police officers are still free to approach him to get a knowing and voluntary waiver. Compare to Miranda, in which there can be waiver unless the D initiates the conversation. Montejo v. Louisiana = Question presented: Are police prohibited from initiating interrogation of a criminal D once he has requested counsel at at an arraignment or similar proceeding? (A: No) Facts: o D waived his rights under Miranda and confessed; he was then brought before a judge for a preliminary hearing.

o D did not actually say he wanted a lawyer, but the court ordered that one be appointed for him. o Officers visit D and request that he accompany them on an excursion to locate the weapon; during the excursion, he wrote an inculpatory letter of apology. o Only when he returned did he meet with court-appointed lawyer. Discussion: o Jackson/Edwards protection is not contingent on an explicit invocation of the Sixth Amendment right, since almost half of states appoint counsel automatically. o It is not the case that, once a D is represented by counsel, police may not initiate any further interrogation. o Right to counsel can be waived as long as its knowing and voluntary; he can waive this right whether or not he is already represented by counsel; the decision to waive need not be itself counseld. o When D is read his Miranda rights and agrees to waive those, that will constitute a 6A waiver, too. o Issue is here is whether courts should presume that that waiver is invalid when D does not initiate. Presumption (in Jackson) stemmed from belief that a suspect who asserts their right to counsel is unlikely to waive it in subsequent interactions. o Edwards is meant to prevent police from badgering D about changing their mind, but a D who never asks for counsel has not made up his mind. o The marginal benefits of Jackson (less coercive confessions) are outweighed by the costs to society (societs interest in punishing the guilty). o Other Court decisions provie sufficient protection: Under Miranda, he has a right to a lawyer during custodial interrogation if he requests it. Under Edwards, once D invokes Miranda right, no subsequent interrogation can take place without counsel. Under Minnick, after invocation, no interrogation can take place until counsel is present. These cases make clear that a D who does not want to speak to the police without counsel present need only say that when he is first approached. o What matters for Miranda and Edwards is what happens when the D is approached for interrogation, not what happened at a preliminary hearing. Dissent: o Jackson wasnt based on Edwards anti-badgering rationale, but on the 6As prurpose in protecting the unaided layment at critical confrontations with his adversary.

PART FOUR: IDENTIFICATIONS I. Sixth Amendment Protections In most cases where identity is disputed, the verdict will turn on witness credibility. Issues with recall and cross-racial identification. A. Wade and Gilbert and following notes (796-805) United States v. Wade = Question: Whether courtroom identifications must be excluded from evidence when D was exhibited to the witnesses before trial at a post-indictment lineup, in the absence of Ds counsel? (A: Yes) Facts: o D was indicted, then arrested and appointed counsel. o FBI arranged a lineup without notifying counsel; D was identified by both. o At trial, identifiers pointed to D as the man who robbed the bank. Prior lineup identification was elicited from both on cross. Discussion: o Court is concerned by suggestion inherent in the manner in which prosecution presents witnesses at pretrial identification. o Once a witness has picked out the D at the lineup, he will not recant; in these cases, issue of identity is determined before the trial itself. o Ds counsel has trouble reconstructing the manner and mode of lineup for judge or jury at trial. And D may be reluctant to take the stand because of past criminal record. o Since there is grave potential for prejudice in the pretrial lineup, and since presence of counsel can help avert that prejudice, the postindictment lineup is a critical stage at which D is entitled to the aid of counsel. Counsel must be present absent valid waiver by D. o Proper test for determining whether identification should be excluded: Whether the evidence has been come at by exploitation of that illegality ro instead by means sufficiently distinguishable to be purged the primary taint. This will require consideration of various factors, including: Prior opportunity to observe the alleged criminal act; Existence of any discrepancy between any pre-lineup description and the Ds actual description; Any identification prior to lineup of another person; Identificiation by picture of the D prior to lineup; Failure to identify D on a prior occasion; and Lapse of time between alleged act and lineup identification.

Notes:

Also relevant are facts disclosed concerning conduct of the lineup. Determination basically boils down to whether the incourt identification had an independent origin. Dissent: Court has propounded another broad constitutional rule that bars the use of a wide spectrum of relevant and probative evidence. Controlling question was whether the in-court identification was tainted by the unconstitutional lineup; i.e., whether this identification would have been made if there were not lineup.

Evidence of the Prior Identification Itself: Gilbert v. California = Court adopts a per-se rule of exclusion for out-of-court identifications as evidence in the prosecutions case-in-chief (i.e., this case, unlike Wade, is not about in-court identifications or cross). Court says this is the only sanction that will properly incentivize law enforcement. The Role of a Lawyer at a Lineup: Counsel is a passive participant at the lineup who is unlikely to improve its quality. Counsel is also not schooled in psychology. However, counsel may be able to inform officials of the unfairness of some procedures, and knowledge that a lawyer is present may make officials more careful. o Also, cross will be more effective if lawyer has actually seen identification process. B. Limitations on Sixth Amendment protection 1. Formal charge requirement (805-7) Wade/Gilbert protections do not apply unless the D has been formally charged with a crime. Kirby v. Illinois = Question: Does Wade apply to identification testimony based on a police station showup that took place before the defendant had been indicted or otherwise formally charged with an offense? (A: No) Fact: Ds were arrested for robbery and the victim identified them at the police station; at this point, Ds had no counsel present. They were later indicted. Victim identified Ds at trial and also testified to the fact of the previous identification. Discussion:

o 6A right to counsel attaches only after judicial proceedings against D have been initiated. o Only at this point have the adverse positions of the government and defendant been established. o The rationale of Wade/Gilbert was that an accused is entitled to counsel at any critical stage of the prosecution, and that a postindictment lineup is such a critical stage. o When 6A does not apply, Due Process Clause can forbid a lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification. Dissent: Counsel should be required because of the dangers inherent in these procedures, not because the criminal prosecution has begun. Initiation of proceedings is completely irrelevant.

Note on the Meaning of Kirby: Court was concerned with implications of extending Wade right to counsel, since many identifications are made on the street minutes after the event. Vast majority of identification procedures are conduct before a formal charge has been filed. Kirby may create incentives for the government to delay indictment. o A few lower courts have held that if adversary proceedings are deliberately delayed in order to evade Wade, the resulting identification will be invalidated. But this is difficult to prove. 2. Photographic Identifications (807-8) Post-Charge Photographic Identifications: United States v. Ash = Court held that a D has no right to counsel at a photographic identification, regardless of whether it is conducted before or after indictment. Since the D is not actually presented, there is no possibility that the D might be misled by his lack of familiarity with the law or overpowered by his adversary. An accurate reconstruction of a photography array is possible at trial, and thats where defects will be correctedthus, not a critical stage. Notes: But, police conduct at photo id can be suggestive, and that cannot be reconstructed at trial. One lower court has held that, if a charged D is identified in a photograph of a lineup, Ashand not Wadeapplies because D is not present so theres no potential for accused to be misled etc. Textbook authors think Ash Court misrepresents reasoning behind Wade.

II. Due Process Protections (809-27) Foundations:

Stovall v. Denno = Court holds that a Due Process fundantmental fairness approach is used to assess identification procedures not governed by Wade or Gilbert. Facts: Victims wife id-ed the D from her hospital bed, where he was brought handcuffed to an officer and was the only black person in the room. Victims wife asked if he was the man before the id. o She both testifies the hospital identification and makes an in-court id. Question: Whether the confrontant conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken ID that D was denied of Due Process of law. Discussion: o A claimed violation depends on the totality of the circumstances; here, bringing the suspect to the hospital was imperative because she was the only person who could exonerate him, and no one knew how long she would live. (Court also says that Wade and Gilbert will be prospective only.) Notes: Thus, Stovall Due Process test governs admissibility of all identifications that are not post-indictment corporeal identifications. Stovall Court did not discuss potential unreliability of the ID, possibly suggesting that unreliable IDs are permissible as long as they were necessary (exigent circumstances, etc.).

Permissible Suggestiveness? Neil v. Biggers = D was identified in a one-on-one showup by the victim of a rape; government claimed that he was the only person in the lineup because they couldnt find anyone who matched his unusual physical description. Court says it agrees with lower courts that officers did not exhaust all possibilities, but holds the ID still admissible. Rule: Street identifications held immediately after the crime have often been excused as necessarily suggestive by lower courts. Prompt showing of suspect at scene of arrest has the valid function of seeking to prevent the mistaken arrest of innocents. Fact that suspects were handcuffed and in the custody of officers does not render it unnecessarily suggestive. Such IDs are essential to free innocent suspects and inform police if further investigation is necessary. Applying the Due Process Test: Simmons v.United States = Officers showed victims of bank robbery photos of the Ds, and they were identified; victims identified D at trial, but prosecution didnt mention the pretrial ID.

Court says DP protects against IDs that are so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. o Emphasizes the following factors in this case: Officers had pressing need for fast action; Simmons was readily identified by witnesses; Witnesses had an excellent opportunity to observe the robbery and its perpetrators; IDs were made shortly after the robbery. Thus, Court found no DP violation; witnesss bases for making ID was so strong that it was unaffected by any police suggestiveness.

Violation of Due Process: Foster v. California = Court found for the first time (and so far, the only time) that a police procedure violated DP. Eyewitness was called to view a three-person lineup, at which D was placed between two men who were six inches shorter; only D wore a jacket similar to that of the perpetrator. The witness could not positively identify D, so he was brought in for a oneone-one showup; witness still could not ID. A week later, witness views a second lineup, where D is the only returning participant from the previous lineup. Only then does witness positively ID D. Court says procedures made it all but inevitable that the witness would ID the petitioner whether or he was the perp. o Court says both in-court and out-of-court IDs were too tainted to be admitted. The Independent Source: Neil v. Biggers = Victim of rape views lineups seven months after the rape but does not ID a perp; one day, D is arrested on unrelated charges. Police call victim to station who Ids him. Question: Whether the ID was reliable even though procedure was suggestive. Court found that witness had an independent source for the ID that overcame any concerns about reliability. o Victim had spent at least half of hour with him in bright lighting and had faced him directly and intimiately. o Her description after the crime was thorough, and she said she had no doubt that D was her rapist. o Court emphasiszes that, even though this happened seven months after, that she had no ID-ed anyone before cut in her favor. Question for admissibility is thus whether the witness had an accurate picture of the perpetator in her mind before the police suggestiveness occurred, and whether that suggestivenesss altered that picture in any way. o Court will examine how good a look the witness got during or before the crime; how attentive witness was; and whether memory loss had faded that image.

o Look to: Descriptions given by the witness; Whether the witness mistakenly identified another person; Whether the witnesss description fits the person IDed; Certainity of witness at the time D is IDed; and Suggestive tactics used by police. o Note that police suggestiveness is not the predominant inquiry; it is only one factor among the totality of circumstances. 3. Reliability as the Linchpin Manson v. Brathwaite = Question: Whether Due Process Clause compels the exclusion, apart from any consideration of reliability, of pretrial ID evidence obtained by a police procedure that was not suggestive and unnecessary. Facts: o Undercover cops go to purchase drugs from D. o While making the purchase, cop stands within two feet of the seller and observes his face. o He describes the seller to backup officers as a black man, about five foot eleven, dark complexion, black hair, short afro style, high cheekbones, heavy build, wearing blue pants and a plaid shirt. o Suspecting that this description might be of D, the backup officer gets a photo from the station and leaves it at undercover cops office. He identifies D as the seller. Discussion: o Government acknowledges that procedure was suggestive and unnecessary; D asks for a per se rule of exclusion for IDs obtained through such procedures. o Some circuits have this per se rule, on the basis of deterring police misconduct, etc. Others look at totality of the circumstances and admit evidence if, despite the suggestion aspect, the ID possess certain features of reliability. This is an ad hoc approach, but serves to limit the societal costs. o Per se rule goes too far since its application keeps evidence from the jury that is reliable and relevant. o Per se rule may resut in guilty going free. o Reliability is the linchpin in determining the admissibility of identification testimony for Stovall confrontations. Application to these Facts: o Officer got a direct look at the seller, and there was natural light; officer was not a casual observer, but a trained officer. He was also black, making his ID more reliable; officers description was given within minutes of the transaction; officer was very certain; time

elapsed between crime and description was minimal, as well as time that elapsed between ID through photo. The jury will always provide additional check against unreliable IDs. Dissent: o Per se rule is preferable because of the deterrent effect: it would make it clear to police that they can never use a suggestive procedure when a fairer alternative is available. o Greatest memory loss occurs within hours after an event; after that, the dropoff continues much more slowly.

Independent Source for In-Court ID? If an out-of-court is excluded under Manson, can the witness identify the D in court? (A: No) o Under Wade, the witness could do this only if the in-court ID were free from the taint of the lineup sans counsel. o If an ID is excluded under Manson, this is because of police suggestiveness, meaning that there can by definition be no independent source for the in-court ID. Rule: If a pretrial ID is excluded under the Due Process Clause (see Manson), the in-court ID must be excluded as well. Certainty of the Witness: Some lower courts have expressed skeptisim about equating certainty with reliability, since that certainty can reflect corrupting influence of police suggestiveness. o Empirical data says no significant correlation between certainty and accuracy. Character of the Witness: One lower court has focused on character of the witness, noting that it was extremely unlikely that the witness would be affected by suggestive ID procedures in light of his serious attitude and diligence with respect to the episode. Another lower court has said that, conversely, it is also relevant if the witness is a person who could easily be led by police to make an unreliable ID. Example of a Due Process Violation: United States v. Eltayib (2d Cir) = Witness remembers the D had bushy hair, and police crop photos so that it looks like all other possible suspects have short hair cut close to the head. o In another photo array, D was made to stand out by skin color. Court says photo array is improperly suggestive if the picture of the accused so stands out from all other photos to suggest to an IDing witness that this person is the culprit. o And the ID is not independently reliable, either.

5. The Effect of ID Procedures on Trials If government uses a mug shot in photo ID, suggestion is that this reflects a prior criminal record. And in many cases, these photos will be admitted into evidence at trial. o To some extent, forces Ds to choose between challenging an ID and protecting against disclosure of a prior record. Courts tend to prohibit attempts to call expert witness to testify to the unreliability of ID evidence. 6. The Unreliability of In-Court IDs Clearly, in-court Ids are suggestive. Under Manson, in-court ID is only admissible if the witness has an independent source for the ID, such as viewing of the perp before or during the crime. One attempt to solve this: salting the audience with three or four individals of the same general description before asking the witness to make an ID. 7. Voice Identification Lower courts have applied Manson to aural IDs III. Non-Constitutional Safeguards (828-30) DOJ guidelines emphasize: Importance of selecting other subjects in arrays and lineups who resemble the suspect in respect to significant features the witness described; Dangers of simultaneous ID procedures that encourage innacurate relative judgments; The inherent suggestiveness of IDs in which only one individual is shown to the witness. Other important factors: Cautionary instructions; Gauging certainy to guard against post-ID inflation of certainty from confirming feedback of officers; Sequential presentation Blind administrations