Criminal Procedure Outline
Comprehensive Criminal Procedure, Allen, Stuntz, Hoffmann, and Livingston. 1st Edition.
UC Davis School of Law
Professor: Professor Joh
Year: Fall, 2004

I. The Idea of Due Process
II. The Right to Counsel
III. Rise & Fall of Boyd
IV. The Fourth Amendment
V. The Fifth Amendment
I. The Idea of Due Process

A. Supreme Court as the Ultimate Regulator of Police Power

1. Piecemeal decisions

a. Very limited number of criminal cases heard per year (i.e. limited docket)

(1) Plus, criminal justice process after Δ is arrested—some cases never go to trial, some don’t make it to appeal, etc.

b. Each local entity must interpret the opinion as they see fit

2. Problem of enforcement: The S.Ct must rule w/in particular social constraints such that the lower courts and police will actually follow their rules

3. Is the Supreme Court really in touch with what the police do on a day-to-day basis? Are they in touch with social reality?

B. Stages of Due Process

1. Founding—Nothing for the first 100 years

2. Warren Court (1960’s)

3. Present-day jurisprudence

a. Incorporation Doctrine

(1) Hurtado v. CA (1884): Δ charged and convicted of 1st degree murder. Δ charged by information, not grand jury indictment. Δ arguing that due process requires indictment by a grand jury for a serious crime in state court via 14A (much like the process in federal court as guaranteed by the 5th A).

(a) Historical argument (i.e. that the Magna Carta would’ve guaranteed a grand jury) is rejected by the majority b/c the system or process will change and be molded into new forms.

(b) Textual argument: That 14 A is meant to mean the same thing as the 5th A.

i) Majority: No b/c 5th says, “grand jury indictment…due process of law," and 14th says, “No state shall deprive any person of due process of law."

ii) Cannot read 5th A DP into the 14th A b/c would render the other words superfluous.

iii) Thus, 5th and 14A are not exactly the same thing.

iv) Thus, a grand jury indictment is not inherently included in the notion of “due process"

(c) Majority: Fundamental fairness (i.e. due process ≠ Bill of Rights, due process is its own concept)

i) Accuracy or prevent race-based treatment

ii) Rule of law: Govt will not use arbitrary action against you

iii) Based on a “shocking the conscience" standard — unpredictable

(d) Justice Harlan, Dissent: Due process incorporates ALL of the bill of rights. 14A’s DPC is meant to take in all 10 amendments into its concept of DPC.

i) Is much more predictable

(2) Duncan v. Louisiana: Δ convicted of simple battery. Duncan, an African-American, accused of touching or hitting an elbow of a white boy. Δ arguing that DP entitles him to a trial by jury.

(a) Test: Is a jury trial a right “fundamental principle of liberty and justice which lie at the base of all our civil and political institutions?"

(b) Holding: 14th A incorporates the 6th A right to a jury trial in state court for all criminal cases which would require a right to a jury trial in federal court. RIGHT TO JURY = MATTER OF FUNDAMENTAL FAIRNESS

i) Ct does not draw a BLR as to what does or does not get a jury trial.

a) Today, 6 months is the dividing line b/t petty and non-petty

ii) Ct moving from a fundamental standard → selective incorporation (i.e. S. Ct considering cases piecemeal and incorporating more amendments)

iii) Criticism: Ct avoids the race/discriminatory factor. Does not address the status of Af-Ams. Ct is crafting race-neutral and procedural rights.


II. The Right to Counsel

A. Right to Trial Counsel

1. State of the law prior to Gideon.

a. 14A DPC requires states to provide counsel required in capital cases—called the special circumstances rule. Powell v. Alabama.

b. In state court, no lawyer unless it is a hard or complicated case. Ct does not see rt to counsel as fundamental fairness. Betts v. Brady (1942).

2. Gideon v. Wainwright (1963): Δ accused of theft; sentenced to 5 years (i.e. felony trial). Asked for a lawyer, but was refused.

a. Held: Counsel must be appointed in all felony cases.

(1) Here, in state ct, so Δ is entitled to counsel via 14A.

b. Overrules Betts. Seeing an incorrect reading of the DP (i.e. starting to move towards incorporation).

c. Majority: Betts was a departure from precedent. It prevented some from getting fair trials. Due to the adversarial system of justice, defense counsel is necessary.

(1) Justice Harlan, concurrance: Special circumstances rule has been eroded b/c it has been employed frequently. Limit the incorporation of the 6A via 14A.

3. Scope of the right to counsel—Misdemeanor cases

a. Arbersinger v. Hamlin (1972): Δ argued that if all are entitled to a jury trial, then Δ should also be entitled to the rt to counsel. S.Ct: No, rt to trial by jury ≠ rt to counsel. Δ may not be imprisoned for any offense—whether petty, misdemeanor, felony—unless represented by counsel at trial.

(1) Is S.Ct fearing cost of having to provide counsel to everyone?

(2) Criticism:

(a) Doesn’t ct suggest that Δ atty would ensure a fair process?

(b) Also, are legal issues in misdemeanors any less complex than in felony cases?

(c) Justice Powell (concurs w/ result, but disagrees w/ the breadth): Should have a case by case determination of whether counsel is required—whether or not imprisonment is involved.

i) Fears pre-judgment of the case to ensure compliance w/ Arbersinger, and the pressure not to appoint counsel in every case.

b. Scott v. Illinois (1979): Δ convicted of theft (i.e. misdemeanor) and fined $50 after a bench trial. The statute set maximum penalty for the offense as $500 or one year in jail, or both. Scott arguing that where imprisonment is authorized, he should be entitled to a right to counsel.

(1) Held: Potential sentence does not matter. Actual sentence to imprisonment is the factor that will trigger the right to counsel.

(2) Brennan dissent:

(a) Authorized imprisonment is more faithful to Gideon.

(b) Inherent problem b/c won’t actually know the sentence until after the trial is over.

c. Collateral consequences

(1) Nickels v. US (1994): Misdemeanor conviction w/o counsel. Repeats the offense. The 1st conviction enhances 2nd conviction’s sentence. Violation of Scott?

(a) Held: No. Uncounseled convictions may be used to enhance a sentence for subsequent charges.

(2) Alabama v. Shelton: Shelton received a suspended sentence (i.e. probation). Breaks his probation and is imprisoned. No attorney was at the misdemeanor hearing. Violation?

(a) Held: Yes. Shelton is imprisoned for the same offense. State cannot impose a suspended sentence where the Δ might end up in jail..

d. Reconciling Arbersinger/Scott w/ Gideon: Counsel is required:

(1) When facing a felony in the abstract

(2) In misdemeanor cases where the Δ is actually jailed.


B. Counsel on Appeal

1. No federal xnal rt to appeal. McKane v. Durston (1894).

a. BUT…some states recognize a xnal rt to appeal. Most states provide an appellate process via state law or state constitution.

2. Chronology of right to counsel on appeal:

a. Griffen v. Illinois (1956): Δ entitled to appeal as of right. Needed to pay for trial transcript in order to appeal. USSC:: Violation of DPC by preventing indigent Δ’s from their rt to appeal.

(1) Rationale: Even though no federal xnal rt to appeal, if the state provides for an appeal as a matter of right, they cannot effectively prevent indigents from accessing the system.

b. Douglas v. CA: CA statute—Indigent Δs get appointed atty on appeal as of right only if the appeals court decides it will be helpful for Δ. USSC: Violates DP. CA cannot pre-judge cases

(1) Rule: If on appeal as of right, counsel required as a matter of DP.

c. Ross v. Moffitt: Δ asking for atty on discretionary appeal (i.e. to state S.Ct). Δ received atty @ trial and at the appeal as of right. USSC: States not required to provide counsel for discretionary appeals.

(1) Rationale (look @ DPC and EPC in 14A):

(a) DPC (governs relationship b/t Δ and state): @ trial level, atty essential as a shield, but @ appellate level, atty is more like a sword. Also, @ trial level—presumption of innocence, but @ appeal—Δ is convicted beyond a rsbl doubt, so no more presumption of innocence.

(b) EPC (governs relationship b/t Δ and other similarly situated Δs): EPC does not guarantee absolute equality, but only that Δ has meaningful access. Here, Δ has access to review (i.e. on appeal as of right). State S.Ct is more interested in legal principles to the state, conflicts of law, or matters of public interest.

i) Once a state opens up a state of play, it must be fair. But the North Carolina S.Ct has nothing to do w/ the USSC. Thus, NC shouldn’t have to pay for Δ to go up to USSC.

(2) Situation differs from Douglas b/c:

(a) Difference b/t need and desire to go further

(b) Already briefed issues @ appeal, so can further case on own

(c) Higher courts (e.g. state S.Ct, and USSC) shape the law, and are not really to decide individual questions of guilt.


C. Effective Assistance

1. Evitts v. Lucey (1985): Evitts’ appeal (of right) denied b/c atty failed to file papers. USSC: If state provides for a rt to appeal, must act constitutionally. As a matter of DP, must provide an atty (i.e. what the states owes to Δ on appeal). Not an EPC case. If guaranteed an atty on 1st appeal, then the atty must be effective.

2. Strickland v. WA (1984): Strickland convicted of murder. Defense atty was “despondent and hopeless". Atty fails to investigate mitigating circumstances and witnesses during the penalty phase at trial. @ time, no uniform std for what constitutes “xnally effective counsel."

a. USSC adopts 2 factor test in assessing ineffective assistance of counsel—NEED BOTH–

(1) Ineffective—“cause". Δ must show that counsel’s performance was deficient.

(a) Objective std of rsblness—(“Simply rsblness under prevailing professional norms")

(b) No checklist—“lawyering as an art"

(c) Cannot challenge atty’s strategic choices

(d) This is measured @ time of the atty’s decision or performance—not in hindsight.

(2) Harmful to Δ—“prejudice". Δ must show that counsel’s deficient performance or errors were so serious as to deprive Δ of a fair trial, i.e. one whose result is reliable.

(a) Must show reasonable probability that the outcome would be different.

i) “Probability sufficient to undermine confidence in the outcome."

ii) Not more likely than not, but also not any possible outcome. Thus, somewhere b/t those two stds.

(b) This is measured in hindsight

b. Justice Marshall dissent—

(1) re: rsblenss—Not enough guidelines. Telling attys to act “rsbly" is to tell them almost nothing.

(2) re: prejudice—Tough to tell the effects of bad lawyering.

c. Difference b/t majority and Marshall—Purpose of having an atty guaranteed by the 6A?

(1) Majority: To prevent convicting innocent Δs

(2) Marshall: End in itself. Ensuring a fundamentally fair procedure—whether Δ is guilty or innocent.

d. Ct is also concerned with finality—at what point Δ cannot complain about their case?

3. Guilty Pleas

a. Hill v. Lockhart: Δ alleged atty misinformed him re: how much time he would have to serve before parole, which lead him to plea bargain.

(1) Performance test: Same as Strickland

(2) Prejudice: Whether Δ would’ve entered the plea at all—i.e. if atty hadn’t unrsbly performed, Δ would’ve have plead guilty.

D. Self Representation

1. Faretta v. CA: Δ charged w/ grand theft. Δ wants to represent self. Judge tells him he thinks it’s a mistake, later determining that Δ has no Xnal rt to self-representation, and that Δ has no knowledge of ct rules, so appoints counsel.

a. USSC: Effective waiver of counsel is Xnal in state cts. Rationale:

(1) Historical evid: Δ could represent self @ trial in colonial era

(2) Text of 6A: Refers to Δ himself, not to Δ’s counsel

(3) 6A rt is personal: Δ makes choices and bears responsibility for choices.

b. Trial ct must:

(1) Give warning of consequences, and

(2) Ensure Δ is knowingly and intelligently waiving rt to counsel.

c. Trial ct can deny waiver IF:

(1) Δ is not knowingly and intelligently waiving rt

(2) Self-representation is to engage in “obstructionist conduct"—i.e. delaying tactics

(3) Request is too late (i.e. right before trial, in the middle of trial)

d. FN 46: Not a violation of Δ’s rt if the trial ct appoints a standby counsel to help out if Δ has a question.

(1) Rationale: Keeps judge as the neutral arbitrator, so he won’t have to help Δ too much. Thus, standby atty helps Δ w/ procedure. Does not interrupt the adversarial procedure.

(2) Also, Δ may not raise a Strickland claim against self if Δ is convicted once the rt to self-representation is invoked.

2. Standby counsel @ trial

a. McKaskle v. Wiggins (1984): Trial ct appoints a standby counsel over Δ’s objections. Δ oscillates re: how much he wants counsel to participate. Consults atty often. Confusion over who is in charge? Did standby atty interfere w/ Faretta rt? Held: No violation of Δ’s rt.

(1) TEST:

(a) CONTROL: Actual control by Δ over his hearing

i) Standby counsel cannot make of substantially interfere w/ tactical decisions, control questioning of witnesses, or speak instead of Δ on matters of importance.

(b) PERCEPTION: Jury’s perception that Δ is representing himself. (If jury is not present, then only concerned w/ control).

(2) Rationale: Want to promote the dignity and autonomy of the Δ.

3. Self-Representation on appeal

a. Δ may not waive right to counsel on appeal. Martinez v. CA Ct. App.

(1) Rationale: Appeals are statutory, and not grounded in 6A or C/L. Thus, not denying DP when denying self-rep on appeal. Δ is convicted—he is no longer presumed innocent.

(2) Denying self-rep on appeal does not fundamentally interfere w/ the rt at trial, and concern for fair procedures.

E. Identification and Critical Stages of Proceedings

1. Critical Stage is a formal interaction b/t Δ and the state

a. Examples

(1) Preliminary hearings

(2) Arraignments

(3) Indictment

(4) Corporeal line-ups

(5) NOT warrant procedures

(6) NOT beyond sentencing

b. Δ gets an attorney at “critical stages"

2. Line-up cases

a. Dangers of identifications:

(1) Victim under stress

(2) Police suggestiveness

(3) Mistaken perception and memory

(4) Race—tough for ppl to id ppl in another race

b. US v. Wade: Witness makes an in-court identification based on prior identification in a line-up. No counsel was present at the line-up.

(1) USSC: No per se exclusionary rule

(a) Govt must show that the in-court identification is based on something other than the line-up OR must show that there was harmless error in introducing the evidence.

c. If a line-up w/o counsel and no in-court identification→ per se exclusionary rule. The line-up w/o counsel IS the error. Gilbert v. CA

d. Kirby v. Illinois: Police station id of Kirby after his warrantless arrest and before any adversarial proceedings have begun.

(1) 6A does not apply b/c no formal adversarial proceedings when Δ was put in the line-up.

(2) DPC applies. May be able to attack id at line-up if it was unnecessarily suggestive on DP grounds.

e. Reconciling Wade/Gilbert/Kirby

(1) If a 6A violation @ lineup (i.e. after formal proceedings begin) = evid of id procedure (i.e. fact that witness id’d Δ at a line-up) = INADMISSIBLE

(2) Eyewitness cannot id Δ at trial/in-court unless the govt can show the id is not tainted by pre-trial, counsel-less id @ lineup (i.e. that eyewitness id’d Δ apart from the line-up)

(3) 6A implicated: Corporeal lineup = critical stage ONLY AFTER the start of formal adversarial proceedings

3. US v. Ash: Δ id’d at photographic array w/o counsel present. USSC: No 6A violation. Δ is not present, so this is not an adversarial procedure. Also, Δ’s atty can do their own photo id—or can be redone at trial.

a. Photo array ≠ critical stage. Thus, no rt to counsel here.

b. Dissent: Greater dangers of mistaken id. Likelihood of unconscious suggestions.

4. Using DUE PROCESS as a means of challenging ids

a. Stovall v. Denno (1967): Δ arrested for murder. Victim’s wife is in the hospital. Δ brought into hospital and wife id’s Δ w/o atty.

(1) TEST: Was id procedure (1) unnecessarily (2) suggestive?

(2) Held: Suggestive, but not unnecessarily so. Not sure if victim was going to live.

b. Key to challenging id on DP grounds: RELIABILITY. Manson v. Braitwaite (1977)

(1) No need for per se exclusionary rule if utilize a totality of the circumstances test.

(a) Per se rule is too harsh—creates a risk where guilty ppl will go free, and goes too far in excluding relevant evidence.

c. Summary of DP test. Δ must show:

a. Procedure was suggestive

b. It was unnecessarily so.

c. ID was found to be unreliable

d. Based upon the totality of the circumstances

(1) Relevant factors:

(a) Opportunity of the witness to view the criminal @ time of the crime

(b) W’s degree of attention

(c) Accuracy of W’s prior description of the criminal

(d) W’s level of certainty.

5. Summary: Right to counsel @ id procedures:

a. 6A

(1) After formal proceedings

(2) Corporeal lineup

(a) To admit the in-court id, govt must show that id was gotten from another source than the no-atty lineup

(b) Per se exclusionary rule against the 1st id if no atty present

b. Alternatively, (and independently), DPC

(1) Challenge can be to a line-up or a photo

(2) DPC does not care whether the id was before or after formal proceedings.

III. Rise and Fall of Boyd

A. Boyd v. US (1886): Boyd importing glass. Govt claims Boyd lied about the content of the shipment and is requiring Boyd to produce invoices for shipment of glass. This is a tax dispute and a civil proceeding. Boyd hands over papers, but over objections that it is violating his 4/5th A rts.

1. Govt relies on 1875 statute: If Δ fails to produce papers, allegations are taken as confessions.

2. Majority: Unreasonable search and seizure.

a. Statute is w/in the “spirit" of the 4A—even though no literal search and seizure. Functional equivalent to search and seizure.

(1) 4A is to protect against “general warrants"—open ended warrants

(a) Entick v. Kerrington: Govt enters π’s home, and search his papers pursuant to a general warrant. Lord Camden: Condemns the search.

i) Private ppty is sacred as “papers are the owner’s goods and chattels; they are his dearest ppty…"

ii) This case called the “bastion of civil liberties"

b. 4-5 A protect private ppty (not so much the language of privacy).

c. Suggests absolute right of privacy w/ private ppty

3. This proceeding is quasi-criminal, so 5A applies.

4. Relationship b/t 4 and 5A…

a. Majority: Closely related as an intimate relation b/t the two…

B. Gouled v. US (1921): Govt barred from searches or seizures where the claimant has a legitimate interest in ppty. MERE EVIDENCE RULE—Govt can only take ppty you don’t have a legitimate interest (e.g. contraband, stolen goods). Govt must have superior interest in the evidence.

1. After Gouled and Boyd, USSC is creating an absolute zone of privacy for private ppty. Thus, govt can only really look for contraband

2. As a practical matter, effective law enforcement becomes more important. Need to allow law enforcement to touch private ppty. (beginning of 20C…allow law enforcement to touch private ppty)

C. Fall of Boyd

1. 5A privilege against self-incrimination is NOT available for corporations. Hall v. Hinkle

2. Required Records Doctrine: Can’t invoke 4/5 A to refuse compliance w/ records you are required to keep.

3. Govt can search and seize ppty used in commission of a crime. Marron v. US (1927)

a. Narrows mere evidence rule: Distinguishes b/t ppty that is mere evidence of a crime and ppty used in the commission of a crime.

4. Ppty or privacy?

a. Traditional view: Look @ whether evid belonged to Δ

b. Revisionist view of 4/5 A: Rts protect the right to be left alone. View advanced by Justice Brandeis’ dissent in Olmstead v. US, which eventually came to the core of modern jurisprudence.

D. Schmerber v. CA: Δ arrested while driving drunk. Blood drawn against Δ’s consent. Raises 4/5/6 A claims.

1. re: Blood compelled–implicates 5A claim against self-incrimination

a. USSC: Blood ≠ testimony or communicative evid.

(1) Can use the body as evidence

(2) Xnal difference b/t forcing someone to say something and physical evid alone

(3) versus lie detectors—where this measures both physical evidence and is testimonial in nature.

2. re: Blood test—implicates 5A

a. Blood itself is a non-communicative act.

b. → Testimony comes from the doctor or lab analyst—not from Δ himself.

c. Even though Δ is the blood donor, his participation is irrelevant for 5A purposes

(1) Departure from Boyd—Even though physical evidence is incriminating and/or private, it is not testimony, and is not covered by the 5A

3. re: Rt to counsel claim

a. USSC: No rt to counsel b/c is not a critical stage. Counsel couldn’t help Δ protect his rts

4. 4A claim against unrsbl searches and seizures

a. USSC: Search and seizure here.

b. Then, is it rsbl for Xnal purposes? Yes

(1) Here, no warrant

(2) BUT…rsbl b/c timing issue (i.e. alcohol dissipating in body) + rsbl procedures used + rsbl method to ascertain whether Δ is drunk

(3) Thus, no 4A violation

5. Brennan’s decision:

a. “Overriding function of 4A is to protect personal privacy and dignity against unwarranted intrusion by the state"

(1) Privacy and dignity added to 4A analysis.

b. Suggests certain circumstances where it is ok for govt to search

(1) Qualifies the absolute bar on personal ppty

c. Differs from Boyd:

(1) Getting away from thinking of 4/5 A as giving substantive rights.

(2) Shifting idea to what 4/5 A is about—application where the procedure is analyzed.

(3) Growing concern about effective law enforcement

(a) Increase in the idea that the govt’s needs should be balanced against privacy

6. Douglas’ dissent: Absolute zone of privacy which govt can never intrude.

7. Now: Under Schmerber, Δ cannot raise 5A claim w/ forcible DNA extractions; can only raise unrsbl 4A claim

E. Warden v. Hayden: Δ accused of armed robbery. Δ objects to govt taking his clothes as evid. This is during the “mere evid" rule (i.e. govt can’t search and seize mere evid; need a superior ppty interest to Δ; thus, must be a fruit/instrumentality of the crime or contraband)

1. USSC: Rejects mere evid rule. Distinction is a fiction.

2. Ct is moving away from exclusive view of the 4A as protecting personal ppty. More about putting limitations on the govt, and protecting privacy.

F. Berger v. NY: NY wiretapping statute struck down. USSC: No longer a substantive interest in talking about 4/5 A. Ct concentrates on procedural protections

1. Total separation of analysis b/t 4-5 A. No longer an intimate relationship.


IV. The Fourth Amendment

A. General principles

1. Text: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures [reasonableness clause] shall not be violated, and no warrants shall issues, but upon probable cause, [warrant clause] supported by oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized [particularity clause].

2. Xnal doctrines implicated:

a. Incorporation: B of Rts doesn’t necessarily apply to states automatically. Must be incorporated by the DPC

b. State action: Must be govt action involved (i.e. state actors)

B. Exclusionary Rule—Primary remedy for violating 4A

1. Mapp v. Ohio (1961): Police looking for Virgil Ogiltree to question about a bombing. Go to Mapp’s house. She refused entry and called her atty. Atty was kept from entering the house. 3 hours later, door forced open. “Warrant" held up, and fight ensues to get hold of the paper. Police search the house, and find obscene materials.

a. USSC: Illegal police action. Evid should’ve been excluded at trial. Conviction reversed.

b. State of the law @ time of Mapp:

(1) Weeks v. US (1914): Fed officials illegally obtain evidence. Exclusionary rule formed as a remedy for the violation of a 4A rt.

(a) Rationale: If no remedy, then do you really have a rt?

(2) Wolff v. Colorado (1949): Would not extend exclusionary rule to the states as the remedy for 4A violations by state officials.

(a) Lead to the silver platter doctrine: Fed agents could get state police to seize evid unconstitutionally, but evid would be let in b/c was not obtained by federal agents

(b) Reverse silver platter doctrine: Feds getting evid unconstitutionally, and giving it to state officials.

(c) Silver platter doctrine today: Individuals, private citizens, foreign police can seize evid

c. Exclusionary rule applies to the states

(1) Rationale:

(a) Deterrence to the police

(b) Procedural uniformity—prevent evid in that was unconstituionally obtained

(c) Upholds the integrity of the criminal justice system; prevents tainted evid in

(d) Healthy federalism—avoiding conflicts b/t state and fed cts

2. Exclusionary rule does not benefit those who are searched illegally, but no evid is found in the illegal search (e.g. Police want to harass someone, but are not looking for evid to assist in their prosecution).

3. Cost of the exclusionary rule

(1) Some guilty Δs go free

(2) DA may refuse to bring case fwd—i.e. impacts charging decisions

4. Exclusionary rule is NOT Xnally mandated, but is judicially mandated. Thus, may change the remedy in the future if a better one can be thought up.


C. Searches and Seizures—When the 4A is implicated

1. “Searches"

a. State of the law @ time of Katz

(1) Olmstead v. US: Police surveillance b/t Olmstead and another individual around Olmstead’s home via wires outside home. USSC: No physical trespass, so no 4A event/violation.

b. US v. Katz: Δ in glass phone booth. Conversation recorded.

(1) USSC: 4A protects privacy in limited sense. 4A protects people, not places—Thus, even if Δ is in a public place, it may be private

(a) Even though no physical trespass, Δ has 4A claim here.

i) Even though Katz knowingly exposed himself visually, he did expect conversational privacy.

(b) Then, is search rsbl?

i) Ct: No. Govt could’ve obtained a warrant. Not for the govt to determine whether they are acting rsbly or unrsbly

(c) Overrules Olmstead

(2) Justice Harlan’s concurrence—becomes the dominant way to look @ rsblness of searches and seizures

(a) Does Δ have rsbl expectation of privacy? (subjective)

(b) Is the expectation rsbl from society’s point of view, and is society prepared to recognize it as rsbl? (objective)

(3) Problems w/ Harlan’s test:

(a) Room for variation

(b) Circular: Std will evolve w/ society’s changing social circumstances—e.g. post 9/11: society may demand greater intrusions for law enforcement, while others would oppose this, so who is “society"?

c. Knowingly exposure—Impact on reasonably expectation of privacy

(1) Justice Stewart: “What a person knowingly exposes to the public, even in his home/office, is not a subject of 4A protection"

(a) CA v. Greenwood: Δ put opaque trash bags on street and police search them. USSC: Δ knowingly exposed items, so loses 4A protection

(b) BUT…problematic b/c ppl leaving DNA all over the place. Will cts look @ whether Δ has knowingly exposed DNA? (e.g. guy who licks a stamp in NJ)

(2) Open fields doctrine:

(a) Oliver v. US (1984): Police search Oliver’s farm where Δ is growing pot.

i) Held: No search. 2 justifications:

a) No rsbl expectation of privacy in an open field

b) Not a “person, paper, house, effect"

ii) Dissent: a conversation is also not a person, paper, house, effect

iii) BLR: Open fields are NOT protected by 4A

(b) US v. Dunn (1987): Police pass through a fence to reach Δ’s barn and enter ranch w/o warrant. Eventually got a warrant.

i) Held: Not protected by 4A b/c this is not curtilage (i.e. area around the home)

ii) Factors to determining whether the ppty is an open field or curtilage:

a) Proximity of the area to the home

b) Whether the area is included in an enclosure surrounding the home

c) How the area is used

d) Steps taken to protect the area from observation of passerbys.

(c) e.g. Installing 5000 security cameras in Manhattan. No subjective expectation of privacy b/c you can see the cameras.

(d) Is the 4A suggesting that anytime you are outside your curtilage, you no longer have an expectation of privacy?

d. US v. White (1971): Δ having a conversation w/ Harvey Jackson, an informant. Jackson has a transmitter. Δ objects to recording of the conversation as a ‘search.’ [Jackson is acting as a state actor]

(a) US v. Hoffa: Hoffa in hotel, talking to colleague (police agent). Colleague testifies to the conversation at trial. Held: Not a 4A search b/c no rsbl expectation of privacy in FALSE FRIEND. No protection from misplaced confidence.

(b) Ct in White: No difference b/t testimony from conversation and technologically enhanced conversation.

i) Δ assumes the risk when he talks to false friend, that the friend may disclose conversation to someone else.

ii) Differs from Katz: Person Katz was talking to did not consent to the 3d party in the conversation. Here, one person consents.

e. US v. Karo: Govt put beeper in can of ether. Owner/seller consents. Karo picks it up. Govt tracks can from Karo’s house to other houses → storage locker (lose visual tracking) → Taro’s house (police obtain warrant and arrest)

(a) Held: No search during times can is transferred by visual surveillance

(b) re: While in Taro’s home…yes, 4A reasonable expectation of privacy implicated. Govt only knew of the location of the ether b/c of the beeper—this info could not have been obtained otherwise.

i) Govt uses beeper when they lose sight of the can in public view

(c) Knotts: Person on public roads has no rsbl expectation of privacy b/c it conveys to anyone that he is traveling. Thus, no 4A search b/c Δ is transmitting info of his whereabouts voluntarily.

i) karo differs from Knotts b/c beeper provided info that was not/could not be known from public view.

f. Circolo (1986): Police survey Δ’s backyard via airplane and spot marijuana from 1000 ft up.

(a) USSC: No 4A search by visual overflight. No rsbl expectation of privacy.

g. Florida v. Riley (1996): Police in helicopter. Surveying the inside of Δ’s greenhouse in his backyard.

(a) USSC: No search. Is legal to fly 400 ft over one’s house in helicopter. If public can do it, so can police.

(b) Does this cause different stds for different geographical areas?

(c) No rsbl expectation of privacy over your curtilage

h. Bond v. US (2000): Δ, passenger on a bus. Police come on and squeeze Δ’s bag. Find a brick of methanphetamine.

(a) USSC: Violates 4A. Difference b/t visual and tactile manipulation

(b) Katz test: (1) Not rsbl to think that ppl will come on bus and squeeze bag (subjective); (2) Society: ct nervous to fail to protect all things that can be touched.

i. US v. Kyllo: Police think Δ is growing pot inside house. Use thermoimager to see the heat emitting from the home. Police don’t enter the home; only know whether heat is coming from the bldg.

(a) USSC: 4A search.

i) Govt is actively seeking info that it cannot see. Getting info about the interior of the house that it could not otherwise have been obtained w/o a physical intrusion.

(b) Police use of device not in general public use is a search that is unrsbl w/o a warrant.

i) Stevens dissent: What is “general public use"? Should Xnal protection hinge upon consumer activity?

j. US v. Place: Dog sniff ≠ search.

(a) Differs from Kyllo: Both are non-invasive collections of info. But in Place, this shows absence or presence of drugs w/o actually opening up the luggage

k. What does it mean to have 4A privacy w/ improving technology? e.g. RFID microchips—usually used by warehouse vendors to track merchandise. Now, no law that the device needs to be turned off at any point.

2. “Seizures"

a. Florida v. Bostick (1991): 2 police get on bus, one standing at the exit. Approach Δ and ask him if they can search his bag. Δ (questionably) consents. Police find drugs. Δ argues that he was seized.

(1) USSC: No 4A event if encounter was purely consensual.

(2) TEST: Would a rsbl person feel free to decline the officer’s request or otherwise terminate the encounter?

(a) Police’s subjective intent does NOT matter. Looking at the rsbl person in Bostick’s shoes.

i) Rsbl person also presumes an innocent person (O’Connor)

(b) Whether Δ feels free to leave is one factor, but not the only one.

(c) Rationale: Gives police wiggle room to do their job.

(d) Criticism: Ignoring social reality of the relationship b/t certain communities and the police? (e.g. race as a factor in whether Δ’s action is rsbl) Don’t police just intimidate as being symbols of authority?

b. Browers v. Inyo County (1989): Δ fleeing. Police set up a tractor in the middle of the road to stop the car. Δ hit and killed. Was Δ seized?

(1) USSC: Yes. Key is termination of freedom via means intentionally applied.

(a) Hypo: A police car unintentionally loses its break, rolls down the hill, and pins you. This is NOT a seizure, even if the person it hits is a fleeing suspect.

c. Hodari D. (1991): Δ fleeing from police. In midst of pursuit, he throws cocaine on the ground. At what point is Δ seized? (If Δ is seized at the time he threw away the cocaine, then the drugs are the fruit of an unlawful seizure and the evid excluded).

(1) USSC: Seizure = taking possession or physical control. Need to show either actual physical touching OR submission to authority.


D. Probable Cause and Warrants

1. Context: Once 4A found to apply (i.e. there has been a search or seizure), must answer two additional questions:

a. What std are police held—meaning, how much or what kind of justification must the police have in order to search/seize?

(1) Probable cause—This defines the amount of facts or circumstances w/in the police’s knowledge that would warrant a rsbl person to conclude that the indiv committed a crime or that specific items related to the criminal activity will be found in a certain place.

b. Who decides whether this justification is present?

(1) Neutral magistrate before the issuing of a warrant

(2) When acting w/o a warrant, determination of PC is made by the police and is later reviewable by the ct (at the suppression hearing)

2. Standard

a. Traditional approach:

(1) Warrantless searches are unrsbl. Rare to have an exception to a warrantless search.

(2) Police need probable cause to search

b. Contemporary approach:

(1) Many exceptions

(2) Difficult to apply b/c variation by jx

c. Brinegar v. US (1949): “Probable cause exists where facts and circumstances w/in (officer’s) knowledge of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been…made."

(1) 4 elements to probable cause:

(a) Rsbl to whom?

(b) Strength of connection

(c) Comparison to other [procedural] stds?

(d) Quality of info

d. Informant:

(1) Draper v. US (1958): Informant tells police the narcotics agent will be arriving @ certain time, carrying bag, wearing x, etc. Police conduct surveillance and verify info before seizing Δ.

(a) Held: Tip + corroboration is enough for probable cause

(2) Spinelli (1969): FBI get a warrant to search Δ’s home b/c of tip that Δs gambling in home.

(a) Held: No probable cause. Problem with the tip—first, not sure why it should be believed, and second, don’t know if it is credible.

(b) 2-prong test developed:

i) Basis of knowledge—Underlying circumstances relied on by the informant in concluding the facts are as he claims they are

ii) Veracity/Reliability—Underlying circumstances in which the officer must conclude that (a) informant was credible, or (b) that info was reliable.

(c) Criticism: When applied to Draper, then govt would lose b/c no basis of knowledge.

(3) Illinois v. Gates (1983): Police receive an anonymous letter that a husband and wife will be going to Florida to pick up drugs. Anonymous tip is mostly correct, but on legal activities (i.e. husband to fly down and meet wife; they stay at hotel; one of them will drive back)

(a) Held: Probable cause Disposes of the 2-prong test. Totality of the circumstances test.

i) Not totally outcome determinative if police fail one prong of old Spinelli test.

ii) Here: enough corroboration of the tip by police observation to assume that the tip is reliable.

(b) Warrants are easier to obtain under the new test:

i) If one spinelli prong is weak, cts can now use discretion in issuing warrants

ii) Where tip is not satisfactory under Spinelli, if corroborated by police, can serve as a basis for probable cause.

(c) Ct will not make a per se rule against anonymous tips

i) fears a chilling effect

ii) police often rely on anonymous tips

e. Std of review for probable cause in warrantless searches will be given a de novo review upon appeal—i.e. no deference to trial ct. Ornelas v. US


3. Warrant Requirement—Execution of a warrant

a. Presume w/ absence of warrant = unrsbl

b. Knock and announce rule:

(1) Rationale for rule:

(a) Protect damage to ppty

(b) Give notice; protect against invasions of privacy

(c) Protect unnecessary incidents of violence; police safety

(d) Goes to the ? of rsblness

(2) US v. Banks (2003): Police @ Δ’s house. Wait about 15-20 seconds before entering. Find drugs.

(a) USSC: 15-20 seconds is rsbl for 4A purposes. Will not decide based on how long it takes Δ to answer the door, but look at the police mindset.

(b) TEST FOR RSBLNESS: TOTALITY OF THE CIRCUMSTANCES. Flexible standard; no BLR to consider exactly how long police must wait before entering.

(3) Exceptions to knock and announce rule:

(a) Exigent circumstances

(b) When police believe knocking would be dangerous or futile.

4. Exceptions to the Warrant Requirement (i.e. Warrantless searches/seizures)

a. Exigent Circumstances (Probable cause + no time to get warrant = exigent circumstances)

(1) Timing cases

(a) Mincey v. AZ (1978): Undercover officer trying to get into apt. Shots fired. Police rush in. Δ injured, police injured. 10 minutes later, homicide detectives arrive and search for 4 days. No warrant is ever obtained.

i) USSC: Unrsbl. Warrantless search must end once the exigency ends.

a) Δ still has REOP. Even though crime was committed, Δ is still innocent until proven guilty

b) Apt was secured by the time the detectives come in. Only an emergency @ time the police hear shots. Exigency dissipates after the crime scene is secure.

c) Will not make an exception for murder scenes

(2) Fleeting Suspects—Entering the home of a fleeing felon. NEED HOT PURSUIT

(3) Destruction of Evidence—Exigency is created after the police announce their arrival and the person runs out to destroy evidence

(a) Illinois v. MacArthur—Police accompany wife to help her remove her stuff from the trailer. As she’s leaving, she tells police that her husband has dope inside. Police make husband stand outside w/ them while the other officer goes to get a warrant. Δ claims that he was unrsbly seized.

i) USSC: Rsbl. Use balancing test: Individual privacy interests v. law enforcement interests

a) Wife gives enough info for probable cause

b) Seizure was limited in time (here, 2 hours)

c) Police feared Δ would destroy evid

d) Jailable offense

e) Differs from Welsh v. Wisconsin: Police enter home w/o a warrant to get Δ’s blood alcohol. USSC: Unrsbl b/c this is a non-jailable traffic offense

f) Is this mixing the substantive law w/ procedure? (i.e. state legislatures ultimately decide whether a seizure is rsbl/unrsbl based on how they deem offenses jailable or non-jailable.

ii) Souter concurs: If cops let Δ go back into trailer, then they would’ve been worried about the destruction of the evidence → exigent circumstances. Thus, would’ve created circumstances for police to search w/o a warrant

iii) Stevens dissent: Balance is wrong. Greater privacy interest when someone’s home is involved. Also, the nature of the offense shouldn’t really matter much.

(4) Community Caretaking—Police enter home to make sure that ppl are ok (e.g. checking on an elderly person or seeing a neighbor’s door ajar for days)

b. Plain View

(1) This doctrine focuses on seizures of evidence that are not specified on a warrant

(2) Horton v. CA (1990): Robbery. Police looking for “proceeds of the crime" (i.e. stolen coins). Officer finds weapons probably used in the robbery.

(a) USSC: Rsbl

(b) 3 elements to the “plain view" exception

i) Police must be in place where s/he can lawfully view the evid (i.e. lawful vantage point)

ii) Object must have immediately apparent incriminating character.

iii) Police must have lawful access to the object

(c) Rationale to the exception:

i) Practical law enforcement practice—too cumbersome to go back and get another warrant if police see new evid.

(d) Inadvertence NOT REQUIRED

i) Old rule said that evid only ok if the police come across it inadvertently. BUT…this punished officers for trying to specify things in the warrant that they expected or suspected would be found.

ii) If worried by particularity, this is covered by the warrant itself

iii) Ct looking for more of an objective standard. Inadvertence required asking about the subjective state of mind of each police officer.

iv) Also, police may have mixed motives in a search.

(3) AZ v. Hicks (1987): Police arrive @ scene of shooting. Police see a suspicious stereo and turn over equipment to see the serial numbers to see if it is stolen. It is .

(a) USSC: Plain view does not apply here. Police have lawful access to the apt and to the stereo. But until they see the serial numbers, it is not obvious that it is stolen

(b) Moving stereo = new search

(c) Plain view doesn’t justify moving objects (e.g. looking though drawers)


(a) Elements:

i) Police lawfully there

ii) Incriminating object (from touch) is immediately apparent

iii) Police have lawful access

(b) Minn. v. Dickerson: During weapons pat-down, police feel something in Δ’s jacket. Go back and find drugs. USSC: Not rsbl here b/c not obvious that the drugs were immediately incriminating

c. Automobiles

(1) Cars have a lower REOP b/c they travel on the open road and are subject to govt license/registration

(2) State of the law at the time of Acevedo:

(a) Warrantless search of a car ≠ 4A violation. Cars are mobile and have exigency in itself. Carroll v. US (1925)

(b) Ok to search car after it is seized and taken back to the police station. Lesser expectation of privacy in the car b/c it is on a public roadway. Also, exigency is determined at the time of the seizure. Chambers v. Moroney (1970)

(c) Containers in car that the police are specifically interested in. The fact of the container falls in the warrantless car exception. US v. Ross

(d) US v. Chadwick (1977): Police have probable cause that a footlocker contains drugs. They arrest/ seize the footlocker when it is placed into a waiting car on the curb. USSC: Unconstitutional. If it is a closed container, full REOP. Presumption that police need a warrant for the container—even if they have probable cause. Need a warrant for the closed container—even if probable cause is present

(e) Ark v. Sanders (1979): Suitcase in the care. Find a suitcase in the car, then search it b/c cops have probable cause to think there are drugs there. USSC: Unconstitutional. Container is separate from the car, so need warrant

(f) THUS, irreconcilable load of cases—complete automobile exception, but a full REOP in containers

(3) CA v. Acevedo (1991): Police watch Δ leave the house w/ a paper bag; puts bag in trunk of car. Police follow. Stop and search car and bag. Find drugs.

(a) USSC: Police can search car + containers w/in it where they have probable cause to believe that contraband or evidence is contained w/in

(b) If container is placed in car, REOP drops to the level of the car

i) Overrules Sanders, but not Chadwick

ii) Basic presumption: Container still has full REOP until in the car

(c) Rationale:

i) Conflicting line of cases

ii) Container not a part of the exigent requirements

iii) Compared to the facts of Carroll (where police rip up the car to search for alcohol), this is less intrusive

iv) Police could’ve seized the paper bag and applied for a warrant

(d) Stevens dissent: Inconsistency not resolved. Police must still get a warrant if you have a briefcase when walking down the street and police have probable cause. No lesser privacy interest b/c the briefcase is in the car, than if you were walking down the street.

(4) CA v. Carney (1985): Police want to search a trailer parked in a public lot where they suspect ppl are exchanging drugs for sex. No mobility issue, and no warrant.

(a) USSC: Search ok. Police may search these vehicles IF (1) used on the highway or (2) vehicle is parked in a public place (not regularly used for residence) or (3) if readily capable of mobility or (4) if on a public road.

(b) Ct is not deciding whether the automobile exception applies to mobile homes used as residences. Factors to consider in future cases:

i) Whether the vehicle is readily mobile or on blocks

ii) Whether the vehicle is connected to utilities

iii) Convenient access to public roads

(5) Wyoming v. Houghton (1999): Police stop car for brake lights. Police sees a needle in passenger’s pocket. Eventually searches passenger’s purse and finds drugs. Δ not the driver. No warrant, but have probable cause.

(a) USSC: Ok.

i) Historical analysis: Not sure whether this action was lawful or not @ C/L.

ii) Then…look to balancing…

a) Ownership is NOT dispositive

b) Passengers, no less than drivers, possess a reduced REOP w/r/t ppty transported on public thoroughfares in cars

c) Law enforcement is tough to have a passenger exception. Otherwise, passengers would just claim all items, and police would always need a warrant

iii) Thus, passenger’s container/ppty does not need a separate warrant

(5) US v. DiRe: Passenger’s clotyhing is NOT w/in the warrantless search exception

(a) Distinguish: Things ON passengers v. things passengers HAVE

d. Arrests (i.e. seizure of the person)

(1) Difference b/t search warrant and arrest warrant

(a) Search warrant: Whether a thing will be there @ particular time and place. Thus, circumstances may change.

(b) Arrest warrant: Whether the person committed the crime.

(2) US v. Watson (1976): Informant tells police Δ has stolen a credit card. Set up where informant to give the signal if Δ really has the card. Δ arrested. Ask Δ if they can search the car. (Dispute whether Δ consents). Find credit cards in the car. No warrant.

(a) USSC: Rsbl arrest here. Postal statute allows postal inspectors to conduct a warrantless search. Ct assumes that Congress has a rt to decide Xnal “rsbl" –But doesn’t this contradict Marbury v. Madison?

i) Historical rationale: C/L allowed for warrantless arrest in felonies

a) Marshall dissent: But C/L felonies were punishable by death. Today, felony-misdemeanor distinction is different.

b) Also, how much do we really want to rely on history as dispositive?

ii) Balancing: Falls in favor of desire for effective law enforcement. If required a warrant for every probable cause case, law enforcement would be less effective & cumbersome.

iii) Rule from Watson: Warrantless arrest is ok if there is probable cause, and when arrest is carried out in public

(3) Payton v. NY (1980): NY statute authorizes warrantless arrest in a home. USSC: No; 4A has greater protection over the home.

(a) If suspect is in a home, police must have an arrest warrant even when there is reason to believe the suspect is inside. (Based on greater REOP inside the house)

(b) Other rationale: want to prevent the arrest warrant from becoming a search warrant

(4) Steagald v. US (1981): Police have warrant to look for Lyons. Believe that Lyons is at Δ’s house. Enter house, find cocaine, but not Lyons.

(a) USSC: Unrsbl. 2 interests at stake: (1) Lyon’s interest for rsbl seizures; (2) Δ’s privacy interests

(b) Rule: To arrest someone in someone else’s home…police must get an arrest warrant to seize the suspect, and a search warrant for the home.

(5) Atwater v. Lago Vista: Δ and her children are not wearing seatbelts. Misdemeanor traffic violation—could issue citation or arrest. Police arrests Δ and takes her in. Δ brings § 1983 suit against police.

(a) USSC: Warrantless arrest for a minor criminal offense is rsbl under the Constitution.

i) Majority is really just setting the constitutional minimum

(b) History is inconclusive

(c) Then…balancing test. Balance falls in favor of the state

i) Arrest is not extraordinarily unrsbl

ii) Not a social problem—no “parade of horribles"

a) Criticism: What about racial profiling? Incidents of the police using a minor offense to search for broader evidence?

b) Also, if this is really a consideration, would the ct change their mind if statistics show otherwise?

iii) Tough for police to determine these questions in the spur of the moment. Need police to do their job w/o the threat of litigation.

a) O’Connor dissent: But, we ask police to use their discretion in probable cause determinations, so they are not totally incapable.

(d) Issue is really: Rules v. Standards

i) Δ wants to promote a presumption that an arrest warrant is needed for nonviolent misdemeanors

ii) Ct: No, too difficult to administrate. Looking for BLR.

e. Searches Incident to Arrest

(1) US v. Robinson (1973): Δ stopped in car. Δ searched outside of car. Cops find heroin in cigarette box in pocket. Issue: What is the scope of a search subject to arrest

(a) USSC: Warrantless search incident to custodial arrest (w/ probable cause) does NOT violate 4A. Search does NOT need further probable cause for the search. The arrest itself establishes the authority for the search.

(b) Seriousness of the crime is not the issue when searching incident to arrest. Also doesn’t matter if the search is not applicable to the case itself.

(c) Reasonable search incident to arrest includes:

i) Direct Person

ii) Area in immediate control of the suspect

a) Grabbable areas

b) Chimel v. CA (1969): Δ arrested in own home. Cops search entire house. USSC: This is unrsbl. If in suspect’s home, can only search the area w/in suspect’s immediate control.

aa) Rationale: Privacy interest in home; Want to prevent police from always conducting arrests @ Δ’s home.

(d) Rationale:

i) Officer Safety

ii) Preserve Evidence

(e) Justice Marshall dissents:

i) Unrsbl b/c no weapons (or no evid Δ was concealing weapons) so no danger to police

ii) Officer should’ve seized the cigarette case, then got warrant.

(2) MD v. Buie (1990): Police executing arrest warrant in home. Even if cops have no probable cause or reasonable suspicion, they can still do a protective sweep when arresting a suspect in the home.

(a) Rationale: Police protection against attacks by other people; thus, search is limited to places where the police believe an attack may be launched from.

(3) Car cases

(a) NY v. Belton (1981): Cops stop Δ. Find cocaine in his jacket. Also find cocaine in the back seat of his car.

i) USSC: Rsbl search incident to arrest. It is a contemporaneous search during a custodial arrest of the suspect. Also, police do not need independent probable cause for the jacket.

(b) Thornton v. US (2004): Δ standing near car, but not in it. Officer arrests Δ once he is out of the car. Officer searches the car and finds drugs, weapons. Δ argues that the search is unlike Belton b/c the officer didn’t initiate contact until Δ was out of the car.

i) USSC: Rsbl.

ii) If Δ arrested outside car, officer safety can still be threatened. Don’t want to penalize officer for waiting to conduct a safer arrest.

iii) Here, no facts of Δ potential to destroy evidence. BUT…ct wants to keep a BLR, and not get into a case by case analysis.

iv) Rule: Once police determine probable cause for the arrest, it is rsbl for officers to search the entire car for purposes of (1) officer safety and (2) preserve evidence

v) Scalia dissent: This is about evid gathering, not officer safety.

(c) Difference b/t car search exception and Belton rule:

i) Car search: Cops need probable cause for the warrantless search for what might be in the car

aa) If the police have independent probable cause to search the car, they can seize the car and search later. Exigency is determined @ time the car is taken.

ii) Belton: NOT a car search case. This is a contemporaneous search when lawful arrest occurring. Thus, police don’t need to show independent basis for searching the car.

aa) This is powerful b/c the police don’t need probable cause for items in the car—they don’t even need to know what’s in the car.

bb) Rationale: There may be weapons or b/c evidence could be destroyed.

cc) If cops are not arresting, then need separate and distinct probable cause of criminal activity to search vehicle under Acevedo

(4) Colorado v. Bertine: Cops search car (i.e. inventory search) after arrest and suspect is out of car. Upon searching the car after towing it, they find things. Δ challenges b/c no probable cause for search and it is not contemporaneous.

(a) USSC: Inventory search is rsbl. Even though no warrant and no probable cause, rsbl as an ordinary administrative procedure.

(b) Rationale: Protects against things in the car that might injure others + fraudulent claims of lost property in the car.

(c) Important: This is NOT a search incident to arrest.

(5) Knowles v. Iowa (1998): Δ stopped for speeding. Cops conduct full search of car. No probable cause for search, so not under the car search exception.

(a) USSC: No search incident to citation. Must be a custodial arrest.

(b) Rationale: Fewer officer safety concerns + No threat of destruction of evidence (since evid of speeding was already retained @ time Δ was clocked).

(c) Criticism: But, how much does this serve as a barrier to police? Can’t they decide to arrest, then search, then if nothing found, let the suspect go. Plus, with the car search exception, police may be able to claim probable cause based on the acts of the other passengers.

(6) Whren v. US (1996): Youths in Pathfinder stopped at a sign for longer than usual. Cop sees passenger look down at his lap. Unmarked police car makes a U-turn. Pathfinder makes a right w/o signaling and takes off at high speed. Cops pull Pathfinder over and see drugs in plain view. Δ claims traffic violation was a pretextual reason for pulling him over- real reason was race-based.

(a) USSC: Subjective view/motive of officers is irrelevant.

(b) TEST: whether a rsbl officer could (not should) have pulled Δ over for traffic violations.

(c) Also, if you have a race-based claim, use EPC


E. Reasonable Suspicion

1. Reasonable Suspicion Defined

a. Terry v. Ohio : Officer watching Δs while on patrol. Thinks they’re casing a building to rob it. Stops Δ, and pats them down. Finds gun. No probable cause. No warrant. This is a seizure (by accosting individual and preventing him from walking away) and search → 4A applies.

(1) Then…is it reasonable? Balance govt interest in law enforcement/police safety v. Δ’s Xnal rts.

(a) re: Initial stopping

i) Balance in favor of officer safety; Δ only subject to a petty indignity

(b) re: Pat down

i) Balance in favor of law enforcement—i.e. protecting against fact that the person may have weapons

(2) To justify a Terry stop:

(a) THIS IS NOT A SEARCH & SEIZURE. It is about the temporary detention

i) Temporary detention is justified by reasonable suspicion if officer can point to specific & articulable facts leading to suspicion that criminal activity is afoot (e.g. observing unusual conduct that leads him to suspect criminal activity and/or person

ii) After the seizure, the officer must believe & have reason to believe (i.e. rsbl suspicion) that the person has weapons. Then he may search outer clothing for weapons ONLY. Also limited to a reasonable amount of time

aa) This differs from an officer who sees someone on the street who they think may be a shoplifter and wants to search w/o probable cause.

(3) Landmark case b/c

(a) First time USSC dispenses of warrant requirements/clause

(b) First time USSC acknowledges that search and seizure can vary in intensity and intrusiveness

(c) First time USSC acknowledges that seizures short of arrest can occur

i) Dunaway v. NY (1979) & Kapp v. TX (2003): Just b/c police don’t say they’re arresting you, does NOT make it an automatic Terry stop. Need to look @ the duration of seizure & other circumstances.

(4) Distinct from a search incident to arrest

(a) Arrest is a full-blown search. Terry: limited search for weapons

(b) Arrest is the beginning of the criminal process. Terry: Suspect free to go if no weapons found

(c) Arrest is fear of preserving evidence. Terry: Not a justification for this type of search.

b. US v. Place (1983): Police detain Δs suitcases at airport for 90 minutes w/o probable cause.

(1) Terry also applies to THINGS

(2) USSC: IF rsbl suspicion, then initial detention of bags: ok.

(3) USSC: But, here detention went on too long.

(a) Because it is a closed container, suitcase has a full REOP

(4) btw, Dog sniff ≠ search

c. Applying Terry to Cars/Homes

(1) Cars

(a) When police lawfully stop a car, they can order the people inside out.

(b) No difference b/t drivers and passengers

(c) Can look inside car for weapons (like a Terry pat-down of the car)

(d) Need rsbl suspicion that the car is armed and dangerous

(2) Homes—If police executing an arrest warrant inside house, they can do a protective sweep (i.e. look in adjoining area of Δ’s arrest w/o rsbl suspicion)

(a) Can also search farther areas of the home IF they have rsbl suspicion.

d. Informant Tips

(1) Alabama v. White: Informant tells police Δ leaving @ certain time, in a specific car, at a specific address. Police watch, follow, then arrest. Find drugs.

(a) USSC: OK b/c look at totality of the circumstances—here, anonymous tip, corroboration showing reliability.

(b) This is enough to justify an INVESTIGATORY stop of the car

(2) Florida v. JL (2000): Informant tells Police that a black male w/ a plaid shirt at the train station has a gun.

(a) USSC: No, this is not enough to have reasonable suspicion. Distinct from White.

i) No predictive facts—thus, no way to verify info

ii) Basic & innocent, nonsuspicious facts—i.e. no info someone in the public wouldn’t know.

iii) No info on informant

(b) USSC refuses to create a categorical firearms exception for Terry frisks

(c) Should still take into account factors in these RS cases as other informant cases:

i) Veracity of information + reliability

ii) Basis of knowledge


e. Illinois v. Wardlow (2000): 4 car drug-caravan in Chicago—high crime area. Δ runs when seeing the police. Police go after him (i.e. Terry stop & frisk). Cops see a bag and pat it down and take it out. Find a gun.

(1) Pat down = ok based on officer safety

(2) Taking gun out = rsbl suspicion OR plain feel

(3) BUT…geography (i.e. being in a high crime area) is NOT reasonable suspicion in itself

(a) Reasonable suspicion here is based on the Δ’s unprovoked flight

(4) USSC: Ok here. Reasonable suspicion can rest on officer’s common sense judgment and inference—in light of this being a split-second decision.

(a) Reasonable suspicion = less than probable cause, but more than a police hunch.

(b) BUT…factual ambiguity here over whether Δ actually saw the police car.

f. Hiibel v. NV (2004): 5A and 4A case. Po receive anonymous call that there was an assault by a man in a truck. Go to the scene. Po talk to Δ in truck. Ask for ID. Δ refuses. Violates NV statute for refusing to id self. Issue: Not whether cops can ask questions, but what are the consequences if you refuse?

(1) USSC: Rsbl for a state to require ppl to id self when they’re stopped. Also, ct finds a rsbl relationship b/t asking for person’s name and justification for the stop.

(2) Concern: If NV permits arrest for refusing to answer question, will this lead to a fishing expedition?

2. Alternatives to Probable Cause and Reasonable Suspicion: Roadblocks and Consent

a. Roadblocks

(1) US v. Martinez-Fuente: Suspicionless stop: Ok to stop cars @ Mexican border

(A) Ct balances: intrusion into 4A minor v. FORMIDABLE LAW ENFORCEMENT PROBLEM

(2) Michigan v. Sitz: Suspicionless stop: Ok b/c stopping drunk drivers. IMMEDIACY of threat to take drivers off the road

(3) Delaware v. Prouse: Suspicionless stop: Not ok. Requiring ppl to show valid license and registration is unxnal b/c discretionary

(a) May be ok if the roadblock was in a less intrusive manner and did not involve unconstrained exercise of police discretion

(4) Indianapolis v. Edmond (2000): Δ files § 1983 suit. Checkpoint stopping cars to search for narcotics. Stopped a predetermined # of cars—not # at police’s discretion. Police could search farther if they see something to provide reasonable suspicion or probable cause. Stop cannot last more than 5 minutes.

(a) USSC: NOT OK. Police are checking for “ordinary law enforcement purpose". Violates 4A. Need seriousness of threat to justify suspicion-less stops.

i) No particularized goals

aa) This differs from Whren, where cops can identify a programmatic purpose. There, no subjective intent of the police. Also, Whren had a articulable suspicion before the stop

bb) Here, cannot distinguish the purpose here from general crime control.

ii) No clear and immediate threat

(b) BUT…ct concedes that sometimes suspicionless searches will be justified in exigent circumstances, e.g.:

i) Serial killer on the loose

ii) Hit & Run

iii) Terror attack

b. Consent—i.e. no reasonable suspicion or probable cause

(1) Scneckloth v. Bustamonte (1973): Valid traffic stop. Cops ask if he could search the car. Driver says ok. Finds stolen checks. Bustamonte, passenger, objects to search @ trial. Issue: Cops didn’t tell the driver he had a right to refuse consent.

(a) Ct: VOLUNTARINESS TEST based on the totality of the circumstances.

i) Knowledge of the right to refuse is one factor, but is NOT required as a prerequisite.

ii) This is NOT considered a waiver of Xnal rights. Ct: Waiver is about fundamental fairness of trial (e.g. waiving rts to a jury trial). Here, police investigation. Impractical to recognize this formality—otherwise, everyone would just refuse.

aa) Point: Consent ≠ waiver in a formal criminal trial

(2) 3d Party Consent—Who can consent & what’s the scope?

(a) WHO

i) → When the person asked & the suspect have COMMON AUTHORITY over an area justifies search (e.g. dorm room)

ii) Illinois v. Rodriguez (1990): Δ’s girlfriend tells cops she’s been assaulted. Tells them that Δ is at his apartment and uses her key to let them in. But, GF didn’t really live in that apt, so didn’t have authority over Δ’s apt at all.

aa) USSC: Rsblness ≠ correctness. All cops need is a rsbl belief that the person had authority to give consent over the area—even if that person doesn’t actually have the authority to give consent.

bb) Apparent authority is ok.


i) Florida v. Jimeno (1991): Cops stop car in valid stop. Asks to search car. Δ says ok. Officer finds cocaine in brown paper bag on floor. Issue: Does the scope of searching the car extend to the paper bag?

aa) USSC: Police can look in bag IF it is objectively rsbl to believe the scope of the suspect’s consent permitted him to open the paper bag

ii) Ohio v. Robinette (1996): Officer conducts valid traffic stop. Gives Δ a warning. Asks if Δ minds looking in the car. Officer looks & searches. Finds drugs. Δ argues that he should’ve been told that he was free to leave, so this consent was not voluntary.

aa) USSC: This factor is not itself dispositive of whether the consent was voluntary. Still must look @ the totality of the circumstances.


3. Non-Police Acts

a. Vernonia School Dist. v. Acton (1995): Public school (i.e. govt) officials randomly (i.e. no individualized suspicion) select student athletes for drug test. Need consent of parents. Acton brings suit b/c he and parents refuse to sign consent form to drug tests.

(1) Initial collection of urine = seizure

(2) Finding out the results = search

(3) USSC: This is ok based on the special needs

(a) NJ v. TLO: Principal suspects TLO of smoking. Searches her purse w/ no probable cause or warrant or rsbl suspicion. USSC: This is a rsbl search.

i) Justice Blackmun: Suspicionless search is ok here b/c of the special circumstances beyond the normal need for law enforcement that make the warrant and probable cause requirement are impracticable.

(4) Ct uses a 3-step analysis

(a) Nature of the privacy interest?

i) Students/minors = lower REOP than ordinary adults

ii) Program targets student athletes—have even lower REOP

aa) Scalia: sharing a locker room + accustomed to heavy regulation

(b) Character of the intrusion?

i) Urinalysis = only gives a yes/no answer for drugs.

ii) Limited nature of test—is not genetic testing or pregnancy testing

(c) Nature of the govt interest?

i) Compelling

ii) Drugs = serious problem

iii) School also responsible for student well-being

b. Other Suspicionless Drug Tests that were upheld on the special needs (i.e. beyond the need for normal law enforcement) doctrine. Also, keep in mind this isn’t the police conducting the search.

(1) Ct always balances the govt interest (usually weighty) v. privacy interest (usually slight intrusion)

(2) Skinner: Ok to subject RR Ees to urine and blood after a RR accident

(3) Von Robb: Ok to have drug testing for U.S. Customs Ees

c. Limiting the special needs doctrine—

(1) Remember, usually need individualized suspicion. Special needs recognizes suspicion searches and seizures

(2) Chandler v. Miller: Georgia statute required ppl running for office to give a urine sample.

(a) USSC: If a special need, the need must be SUBSTANTIAL. Here, only a symbolic interest. No demonstration of a systematic drug problem.

(3) Ferguson v. Charleston (2001): Hospital workers take urinalysis of pregnant mothers suspected of being on crack. Police get info..

(a) USSC: No special needs, this is different from Acton/Skinner/VonRobb, where the purpose was to address the drug problem. Here, central part of the policy is to use law enforcement.

i) Even though the hospital claims it really wants to get ppl off of drugs, its immediate purpose is to generate evidence to arrest the mother (i.e. law enforcement purpose).

ii) Really, this search is ordinary law enforcement.

iii) Thus, search is unreasonable.

(b) To examine the real purpose of the program…look @ the “programmatic purpose"—not the subjective intent of a specific officer (see Whren).

d. Note on increasing use of the private police. They fall outside of the 4A/5A/6A analysis + Miranda also does not apply.

(1) But what about “moonlighting" cops? Cts are split.


Summary: Exceptions to the Warrant Requirement

  • Exigent Circumstances
  • Searches Incident to Arrest
  • Car Searches
  • Inventory Searches
  • Plain View
  • Plain touch
  • Consent
  • Terry stops & frisks (but limited)
  • Special needs


F. Substantive Law

1. While law enforcement cannot alter the Probable Cause requirement, they CAN alter the substantive law.

a. e.g. Lower the speed limit so that cops can pull over more people for traffic violations, then can perform searches.

2. Welsh v. Wisconsin: Police called by a truck driver who sees drunk driver. Δ suspected of DUI. Police come into his bedroom and arrest him as he is sleeping naked. No warrant, but exigent circumstances may excuse the warrant requirement.

a. USSC: No exigency here. In Wisconsin, DUI is not a crime, but a civil fine (for a 1st time offender). Thus, the character of the crime defines whether Xnally, police can enter.

(1) No hot pursuit here b/c police are not chasing Welsh

(2) No public safety concern b/c Welsh is at home & not posing a threat to anyone

(3) No concern over the destruction of evidence by Welsh’s blood alcohol level going down.

(a) Basically, it is not important enough here b/c this is a minor offense.

(b) Plus this is entering a home…"application of the exigent circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense…has been committed."

b. Determining if there is exigency, must consider the seriousness of the underlying offense.

3. Criticism of this rule:

a. Administration—variation in geography as travel state to state

b. Changing social/historical context

c. Depends entirely on the state’s ability to define substantive law. Legislatures define the gravity of the underlying offense—which in turn determines whether exigency is present.

G. Limits on the Exclusionary Rule

1. Recall: Mapp v. Ohio: Applies the exclusionary rule to the states. Justified rule b/c:

a. Procedural uniformity

b. Integrity of the criminal justice system

c. Deterring illegal police behavior (really the only rationale in modern jurisprudence)

2. Good Faith

a. US v. Leon: Anonymous tip leads to the arrest of Δ. Magistrate issued the warrant, but it was later found to lack probable cause. Police execute search while relying on the warrant.

(1) USSC: Exclusionary rule will not apply when the police act upon objective good faith and a warrant approved by a neutral magistrate. Rationale:

(a) Wrong begins at the time of the illegal search or seizure. No further wrong after the s & s is over.

i) Issue is NOT whether Leon’s 4A rts violated b/c we assume they already are.

(b) Exclusionary rule does not deter magistrate or judiciary misbehavior. Rule is to deter illegal police behavior. Here, no evidence of police illegality.

(2) When the “good faith" rule will NOT APPLY:

(a) When police are lying or have a “reckless disregard for the truth" in obtaining warrant

(b) When Magistrate fails to be neutral

(c) “Bare bones" supporting affidavit

i) Where impossible for the magistrate to have found probable cause

ii) Where no rsbl person could find probable cause

(d) Warrant is “so facially deficient" that no rsbl officer would rely on it.

(3) Brennan dissent: 4A is a personal right against govt infringing on Xnal rts—including judiciary. Majority is suggesting that the 4A exists as against law enforcement.

b. USSC would NOT EXTEND LEON TO WARRANTLESS SEARCHES. But, will extend the reasoning.

(1) Illinois v. Kroll: Police relying on a state statute that was later found unxnal.

(a) Ct: OK b/c good faith reliance on the law by the police

(2) AZ v. Evans: Po stops Evans, looks him up, mistakenly shows a warrant for his arrest.

(a) Ct: OK b/c good faith reliance by the police

(3) Both of these holdings are relying on police deterrence as the primary justification for the exclusionary rule

3. Standing—Who may invoke the exclusionary rule

a. Evolution of the law:

(1) Jones v. US: Jones sleeping @ apt of friend (i.e. overnight guest)

(a) Ct: Jones has standing b/c of “target theory". Jones is legitimately on the premises during the search + Jones is the “target" of the search

(b) Here: just looking at whether Δ is legitimately on the premises.

(c) later OVERRULED

(2) Rakas v. illinois (1978): Δs are passengers in car—not the owners. Cops legitimately stop the car. Police find guns. Issue: whether the s&s violated the 4A rts of the criminal Δ who seeks to exclude evidence obtained during s&s.

(a) Test: REOP—Can anyone claim a REOP?

(3) Minn v. Olson: Δ, overnight guest, has REOP for that night b/c it is your home for that night. Thus, Δ has standing of search of a place not his home.

b. Minn v. Carter (1998): Anonymous tip that basement apt has cocaine. Officer looks through the blind and sees cocaine. Gets a search warrant. Δs get into the car. [Review: police can stop the car based on rsbl suspicion. Police can order Δs out of the car based on Terry limited search for weapons]. Δs were in Thompson, the apt lessee’s apt. She allowed Δs to bag coke there in exchange for some. Δs try to exclude the evidence

(1) USSC: No b/c Δs do not have REOP (Rakas) & are not overnight guests (Olson). Rationale:

(a) Purely commercial nature of the transaction

(b) Short time in Thompson’s apt (vs. an overnight stay)

(c) Hadn’t known Thompson beforehand

(2) Scalia/Thomas concur w/ result, but object to rationale:

(a) Text: Can only be secure in own home.

i) Overnight guests are allowed b/c it is your home for the night

ii) We should stay w/in the text w/o going outside

(3) Breyer: concurs w/ result

(a) This is not a search. Look @ circumstances

i) Cops not inside the curtilage

ii) Says that ppl in basement apts that face street, need to understand that a “member of the public simply direct his gaze downward."

(4) Kennedy concurs: Some social guests may be protected, even if they are not overnight, but here, Δs more like business guests.

(5) Ginsburg dissent: Δs not a “mere social guest." When you are invited in to do a common endeavor, take the host’s REOP.

i) Does not mean that the pizza delivery man has standing

(6) Vote counting, strange result

i) Kennedy + Breyer (concurring) + Ginsberg/Stevens/Souter (dissent) agreed that “social guests" (not necessarily overnight guests) have a legitimate EOP

ii) Suggests that if merely a social guest, then may have standing to challenge the holding.

iii) Here, Δs are not social guests b/c hadn’t really known Thompson outside of this context + only there for 2.5 hours, so Δs lose.

c. Rawlings v. KY: Δ had drugs. Put drugs in friend’s purse. Δ argues that cops illegally searched purse. Find drugs. Δ standing?

(1) USSC: No. Δ cannot claim REOP in purse that does not belong to him.

(2) Ownership is one factor, but notions of ppty law do NOT control 4A protections anymore

(3) Rule: If no REOP in area searched, then no standing.

4. Fruit of the Poisonous Tree

a. General rule: Exclusionary rule applies to direct evidence and derivative evidence.

b. Hypos:

(1) Cops search X’s home illegally. Evid: Address to Y’s home. Then cops search Y’s home illegally. Evid: Incriminating X & Y.

(a) Y has standing b/c has REOP in own home

(b) X has standing b/c the evid only known b/c of a search of X’s home, which X has REOP

(2) Cops legally search X’s home. Find Y’s address. Search Y’s home illegally. Find incriminating evidence implicating X & Y.

(a) Y has standing

(b) X cannot challenge the evid @ Y’s house b/c no REOP in Y’s house.

c. Wong Sun v. US (1963): HW, informant, is arrested for heroin possession—says he got it from BT. Go to BT’s laundrymat, BT eventually makes a statement implicated Yee. Cops arrest Yee, and find heroin—which is tied to BT and WS. Yee makes a statement implicating WS. A few days after release, WS makes a written unsigned statement incriminating himself. Issue: Arrest of BT was illegal b/c cops did not have probable cause for arrest.

(1) Exclusionary rule will NOT apply:

(a) Attenuation—i.e. if too much has happened b/t the initial illegality and derivative evid found later. Factors:

i) Time passing

ii) Space—i.e. multiple actions by Δ and police, intervening events

iii) How flagrant the initial illegality

(2) re: BT’s statement

(a) Excludable as direct evidence of illegality

(3) re: Heroin found

(a) Test [for attenuation exception]: Whether evid found as exploiting an illegality OR found “by means sufficiently distinguishable to be purged of primary taint.

i) Heroin suppressed as to BT b/c came by exploiting an initial illegality

(4) re: WS statement

(a) Admitted b/c made under free will. WS was released and then returned to the police station on his own to make the confession

i) This is NOT the fruit of the poisonous tree b/c the chain of causation broken.