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4th Amendment Unreasonable searches and seizures


ñc Many of the individual rights guaranteed by the Bill of Rights are applicable to the states only via
the Fourteenth Amendment¶s Due Process Clause, which requires ³fundamental fairness´ in state
criminal proceedings.
ñc ½he Fourth Amendment states: ½    
          
      
      

 

  

     


        


   
            

What is a search?
Katz v. US:½here is a twofold requirement, 6irst that a person have exhibited an actual (subjective)
expectation o6 privacy and, second, that the expectation be one that society is prepared to recognize
as reasonable. ½hus a man¶s home is, for the most purposes, a place where he expects privacy, but
objects, activities, or statements that he exposes to the µplain view¶ of outsiders are not µprotected¶
because no intention to keep them to himself has been exhibited. On the other hand, conversations in the
open would not be protected against being overheard, for the expectation of privacy under the
circumstances would be unreasonable.

Holding: (1) one who occupies it, shuts the door behind him, and pays the toll that permits him to place a
call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the
world. ½o read the Constitution more narrowly is to ignore the vital role that the public telephone has
come to play in private communication«.½he Gov¶t¶s activities in electronically listening to and
recording the petitioner¶s words violated the privacy upon which he justifiably relied while using the
telephone booth and thus constituted a search and seizure within the meaning of the fourth amendment.
(2) since there was a reasonable expectation of privacy, there must be a warrant. Here there was no
warrant and as such the search and seizure was UNREASONABLE.

Open Fields
Oliver v. US: ½he police received a tip that the def was growing marijuana. ½he def had a no trespassing
sign and had locked the gate at the entrance to the center of the farm. About a mile from his house, the
police was around the gate and found a field of marijuana growing. When the police walked passed
oliver¶s camper, someone standing in front of the camper shouted, ³No hunting is allowed, come back up
here.´ ½he officers shouted back that they were Police officers.
Rule:
ñc ½he gov¶t¶s intrusion upon the open fields is not one of those ³unreasonable searches´ proscribed
by the text of the 4th Amendment
ñc ½he amendment does not protect the merely subjective expectation of privacy, but only those
³expectation[s] that society is prepared to recognize as ³reasonable´
Holding: è 
           
 
  

 ½    


    
          
     
 {right-line test: i6 it
is an open 6ield then no 4th amendment protection and no warrant required. Open 6ields is not
cartilage.
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Distinction {etween Open Field and Curtilage


US v. Dunn: Officers suspected Dunn of making amphetamine with intent to distribute. As such, they
put tracking devices in the products used to make amphetamine. ½he officers tracked Dunn to his house.
½hey had to cross five fences to get to his home. ½he officers found a barn near the house. ½he barn and
house were separated by some sort of fence. ½hey looked into the barns with flashlights and saw that
Dunn was making drugs. ½he officers left the residence and obtained a warrant.
Rule:
c ½he cartilage concept originated at common law to extend to the area immediately surrounding a
dwelling house the same protection under the law of burglary as was afforded the house itself.
We identified the central component as whether the area harbors the ³intimate activity associated
with the µsanctity of a man¶s home and the privacies of life¶´.
c Four part test: (1) the proximity o6 the area claimed to be cartilage to the home; (2) whether
the area is included within an enclosure surrounding the home; (3) the nature o6 the uses to
which the area is put; and (4) the steps taken by the resident to protect the area 6rom
observation by people passing by.
Holding: First, the record discloses that the barn was located 50 yards from the fence surrounding the
house and 60 yards from the house itself. ½his substantial distance supports no inference that the barn
should be treated as an adjunct of the house. Second, the barn did not lie within the area surrounding the
house that was enclosed by a fence. ½hus, was quite separate from the residence. ½hird, it is especially
significant that the law enforcement officials possessed objective data indicating that the barn was not
being used for intimate activities of the home. ½he facts indicated to the officers that the use to which the
barn was being put could not fairly be characterized as so associated with the activities and privacies of
domestic life that the officers should have deemed the barn as part of respondent¶s home. Fourth,
respondent did little to protect the barn area from observation by those standing in the open fields.

Aerial Searches
c ½he Court has 6ound it is not a search within the meaning o6 the Fourth Amendment when
the police observe behavior in a person¶s home and cartilage by using low 6lying airplanes.
Cali6ornia v. Ciraolo: ½he police received an anonymous tip that the def was growing marijuana. ½he
police were unable to see the marijuana from the street b/c the fence was too tall. As such, the police
officer used a helicopter to see the drug from an aerial view.
c 0atz posits a two part inquiry: first, has the individual manifested a subjective expectation of
privacy in the object of the challenged search? Second, is society willing to recognize that
expectation as reasonable?
c At common law, the cartilage is the areas to which extends the intimate activity associated with
the µsanctity of a man¶s home and the privacies of life¶

Holding (the Court applied the 0atz¶s test): the claimed area here was immediately adjacent to a suburban
home, surrounded by high double fences. ½he close nexus to the home would appear to encompass this
small area within the cartilage. Accepting, as the State does, that this yard and its crop fall within the
cartilage, the question remains whether naked-eye observation of the cartilage by police from an aircraft
lawfully operating at an altitude of 1,000 ft violates an expectation of privacy that is reasonable«½he
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observation in this case took place within public navigable airspace, in a physically non-intrusive manner.
½hat the observation from aircraft was directed at identifying the plants and the officers were trained to
recognize marijuana is irrelevant. Such observation is precisely what a judicial officer needs to provide a
basis for a warrant. Any member of the public flying in this airspace who glanced down could have seen
everything that these officers observed. On this record, we readily conclude that respondent¶s expectation
that his garden was protected from such observation is unreasonable and is not an expectation that society
is prepared to honor. Ën Ciraolo, the Court stressed that the plane was 6lying law6ully at a level o6
1,000 6t. Ën Florida v. Riley, the search was an aerial surveillance 6rom a helicopter at 400 6t. ½here
was no majority opinion.

Florida v. Riley: ½he def¶s mobile home was 10-20 feet in front of the greenhouse. ½he greenhouse was
covered by corrugated roofing panels, some translucent and some opaque. At the time relevant to this
case, two of the panels, amounting to approximately 10% of the roof area, were missing. ½he
investigating officer discovered that he could not see the contents of the greenhouse from the road;
however, on the helicopter he could see it with his naked eye.
Holding: Here, the inspection was made from a helicopter, but as in the case with fixed wing planes,
³private and commercial flight [by helicopter] in the public airways is routine¶ in this country and there is
no indication that such flights are unheard of in Pasco County. Riley could not reasonably have expected
that his greenhouse was protected from public or official observation from a helicopter had it been flying
within the navigable airspace for fixed wing aircraft. Nor on the facts before us, does it make a difference
for fourth amendment purposes that the helicopter was flying at 400 ft when the officer saw what was
growing in the greenhouse through the partially open roof and sides of the structure.

Ë6 we get an exam question on open 6ield doctrine: First, we need to examine whether the area is
within the cartilage. Ë6 not, then no expectation o6 privacy. Ë6 so, then we see i6 the search was
reasonable b/c the person has an expectation o6 privacy (use Katz test).

½hermal Ëmaging o6 Homes


c ½he use of thermal imaging of homes IS a search for purposes of the 4th Amendment.
Kyllo v. US: If a person grows weed in his home, then they usually use a thermal heating lamp to help
them grow the plant. ½he officer used a thermal imaging camera to determine if the defendant was
growing marijuana. Based on the thermal imaging pictures, the officer got a warrant and searched his
home and found his weed garden.
Holding: We think that obtaining by sense-enhancing technology any in6ormation regarding the
interior o6 the home that could not otherwise have been obtained without physical ³intrusion into a
constitutionally protected area,´ constitutes a search²at least where (as here) the technology in
question is not in general public use.½his assures preservation of that degree of privacy against
government that existed when the Fourth Amendment was adopted. If we find no search violation, then
that would leave the homeowner at the mercy of advancing technology²including imaging technology
that could discern all human activity in the home.

Searches o6 ½rash
c Ën Cali6ornia v. Greenwood, the Court considered this and 6ound no reasonable expectation
o6 privacy in what a person chooses to discard.
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Cali6ornia v. Greenwood: ½he police received a tip that drugs trafficking was occurring within a
neighbor. She investigated the tip. She ask the neighborhood¶s regular trash collector for the defendant¶s
trash bags before mixing it with other people¶s garbage, which the trash collector complied. ½he officer
found items indicating narcotic uses.
Holding: We conclude that respondents exposed their garbage to the public sufficiently to defeat their
claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at
the side of a public street are readily accessible to animals, children, scavengers, snoops, and other
members of the public. Moreover, respondents placed their refuse at the curb for the express purpose of
conveying it to a third party, the trash collector, who might himself have sorted through respondents¶
trash or permitted others such as the police to do so. Accordingly, having deposited their garbage ³in
an area particularly suited 6or public inspection and in a manner o6 speaking, public consumption,
6or the express purpose o6 having strangers take it, respondents could have had no reasonable
expectation o6 privacy in the exculpatory items that they discarded.´

Observation and Monitoring o6 Public {ehavior


c Police Putting a Radio-½ransmitter in a Container that was then in his car
United States v. Knotts: ½he police put a beeper in a container and the police tracked him down
with the beeper and using surveillance. During the latter part of this journey, Petschen began
making evasive maneuvers, and the pursuing agents ended their visual surveillance. At about the
same time officers lost the signal from the beeper, but with the assistance of a monitoring device
located in a helicopter the approximate location of the signal was picked up again about one hour
later.
Rules:
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Holding: Respondent, 0notts, as the ownr of the cabin and surrounding premises to which
Petschen drove, undoubtedly had the tranditional expectation of privacy within a dwelling place
insofar as the cabin was concerned. But, no such expectation o6 privacy extended to the
visual observation o6 Petschen¶s automobile arriving on his premises a6ter leaving a public
highway, nor to movements o6 objects such as the drum o6 chloro6orm outside the cabin in
the ³open 6ields¶. Visual surveillance 6rom public places along Petschen¶s route or
adjoining Knotts¶ premises would have su66iced to reveal all o6 these 6acts to the police.
½he 6act that the o66icers in this case relied no only on visual surveillance, but on the use o6
the beeper to signal the presence o6 Petschen¶s automobile to the police receiver, does not
alter the situation.«Nothing in the 4th Amendment prohibited the police from augmenting the
sensory faculties bestowed upon them at birth with such enhancement as science and technology
afforded them in this case.
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U.S. v. Karo: Drug Enforcement Administration agents installed an electronic beeper in a can of ether
with the consent of the owner, a government informant. ½he marked can was sold along with a shipment
of 50 gallons of ether to the respondents, who intended to use the ether for the extraction and production
of cocaine. Having tracked the can of ether as it was moved between various residences and commercial
storage lockers, the federal investigators determined the location of the can and obtained an arrest
warrant. Respondent 0aro and his accomplices were arrested for possession of cocaine with intent to
distribute.
Holding: ½his case is not like 0notts, for there the beeper told the authorities nothing about the interior of
knott¶s cabin. ½he in6ormation obtained in Knotts was ³voluntarily conveyed to anyone who wanted
to look;´ here, as we have said, the monitoring indicated that the beeper was inside the house, a 6act
that could not have been visually veri6ied. ½HIS WAS INSIDE A HOUSE. We discern no reason for
deviating from the general rule that a search of a house should be conducted pursuant to a warrant.

SUMMARY: Electronic monitoring using tracking devices, such as beepers, does not violate a
de6endant¶s 4th Amendment right i6 the search could have been visually veri6ied. Ën Knotts, the
search was visually veri6ied b/c the police could see where the de6endant was driving. Ën Karo, the
search was unreasonable b/c the police could not visually veri6y that the beeper was inside the
house.

c ½aping a conversation
In US v. White, the Court considered whether there was a search when a government informer carrying a
radio transmitter engaged in a conversation with a suspect. ½he Court held that the listening to this
conversation by another agent, in possession o6 a radio receiver, was not a search. ½he Court argued
that it was similar to listening to a confession at the police station that doesn¶t require a search warrant.

c {ank Records
½he Court has similarly found that inspection of bank records are not searches under the Fourth
Amendment because banks are parties to any transactions and thus have knowledge of them. Cali6ornia
{ankers Assn. v. Schultz. ½he case involved a federal law, the Bank Secrecy Act of 1970, which
required that banks file reports with the federal government of certain types of transactions. A Fourth
Amendment challenge was rejected by the Court on the grounds that people have no reasonable
expectation o6 privacy as to this in6ormation because it is known by others, the banks that process
the transactions. In other words, because some others in the government will see the bank records, the
Court concluded that there is no privacy expectation in them.

c Pen Registers
½he Court has gone even further and found that people have no reasonable expectation of privacy in the
phone numbers they dial or receive calls from.
Smith v. Maryland: ½he police put a pen register to find out who the defendant has been calling b/c he
was suspected of harassing Patricia McDonough. A pen register is usually installed at a central telephone
facility and records on a paper tape all numbers dialed from the line to which it is attached.
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Holding: All telephone users realize that they must ³convey´ phone numbers to the telephone company,
since it is through telephone company switching equipment that their calls are completed. ½he Court
consistently has held that a person has no legitimate expectation o6 privacy in in6ormation he
voluntarily turns over to third parties. ½here is no legitimate expectation o6 privacy b/c petitioner
voluntarily conveyed numerical in6ormation to the telephone company and ³exposed´ that
in6ormation to its equipment in the ordinary course o6 business. Ën so doing, petitioner assumed the
risk that the company would reveal to police the numbers he dialed.

Drug-Sni66ing Dogs
c ½here is no overall answer to whether it is a search if the police use drug-sniffing dogs. But the
Supreme Court has found the use of such does is not a search in a couple of contexts.
c In United States v. Place, the Court held that a canine sni66 o6 closed luggage is not a searchb/c
a canine sni66 by a well-trained narcotics detection dog does not require opening the
luggage.
Drug Sniffing Dogs at ½raffic Stop
Ëllinois v. Caballes: One police officer stopped the defendant for speeding. Another officer, along with
his drug dog, came to help the police officer. ½he dog smelled marijuana in the car. ½he entire incident
lasted less than 10 minutes.
Rule: In U.S. v. Place, a canine sniff by a well-trained narcotics-detection dog as ³sui generis´ b/c it
³discloses only the presence or absence of narcotics, a contraband item.´ Drug sniffs are designed, and if
properly conducted are generally likely, to reveal only the presence of contraband.
Holding: ½he use o6 a well-trained narcotics-detection dog²one that ³does not expose non-
contraband items that otherwise would remain hidden 6rom public view,´²during a law6ul tra66ic
stop, generally does not implicate legitimate privacy interests.In this case, the dog sniff was performed
on the exterior of respondent¶s car while he was lawfully seized for a traffic violation.

½he Requirement For Probable Cause


ñc A core requirement of the Fourth Amendment is the requirement for probable cause. Generally, a
judge may issue a search or arrest warrant only if there is probable cause. If it is a circumstances
where a warrant is not required, a police officer generally can search or arrest only if there is
probable cause. ½here are exceptions: for example, in schools, searches of student¶s purse
requires only the lesser standard of ³reasonable suspicion´.
ñc ½here is no clear definition of probable cause but the Court said that the question is whether
³the facts and circumstances before the officer are such to warrant a man of prudence and
caution in believing that the offense had been committed.´

Ë. What Ës Su66icient {elie6 to Meet the Standard 6or Probable Cause?


c ½he Supreme Court has said that ³in dealing with probable cause«we deal with probabilities.´
But the Court did not attempt to define what probabilities are sufficient. ½he Court simply said
that ³more than bare suspicion´ but ³less than evidence which would justify convictions´.
c ½he Ë v. Gates and Carroll v. US de6initions are the best ones to know: under the totality
o6 the circumstances [½OC], were there enough 6acts and circumstances known to the
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o66icer to warrant a man o6 prudence and caution in believing that an o66ense had been
committed or contraband was in the place to be searched?

Ën6ormants
Ëllinois v. Gates: An anonymous letter was sent to the police describing future events in which details
how the Gates obtained drugs by flying to Florida and then driving home to Illinois. ½he police officer
tried to collaborate as many details as he could.
Holding: overruling the ³two pronged test´ established in Spinelli and rea66irmed the totality o6 the
circumstances analysis that traditionally has in6ormed probable cause determinations. ook at all:
veracity, reliability and basis o6 knowledge o6 the in6ormant.
³{ecause an in6ormant is right about some things, he is more probably rights about other 6acts,´
including the claim regarding the Gateses¶ illegal activity. ½his may well not be the type o6
³reliability´ or ³veracity´ necessary to satis6y some views o6 the ³veracity prong´ o6 Spinelli, but
we think it su66ices 6or the practical, common sense judgment called 6or in making a probable cause
determination.

c Gates remains one of the Supreme Court¶s most important decisions concerning the standard for
probable cause. Yet, there is an inherent uncertainty as to what is enough. Probable cause is
more than the lesser standard of ³reasonable suspicion´ and it is thought to be less than
preponderance of the evidence.

A recent case that raised this question was Maryland v. Pringle. If a police officer knows that someone
within the car is responsible for contraband, is there probable cause to arrest all of those within the
car?
Maryland v. Pringle: It was a routine traffic stop. ½he officer saw that there was a large roll of money in
the glove compartment. ½he officer asked if they could search the car. ½he three men in the car allowed
the police officer to search the car. ½he officer found cocaine between the backseat and the arm rest.
Pringle did not own the car and was not in the back seat.
Rule:
c ½o determine whether an o66icer had probable cause to arrest an individual, we examine the
events leading up to the arrest, and then decide ³whether these historical 6acts, viewed 6rom
the standpoint o6 an objectively reasonable police o66icer, amount to probable cause´
Holding: In this case, Pringle was one of three men riding in the car. ½here was $763 of rolled up cash in
the glove compartment directly in front of Pringle. Five plastic glassine baggies of cocaine were behind
the back seat armrest and accessible to all three men. Upon questioning, the 3 men failed to offer any
information with respect to the ownership of the cocaine or the money. e think it an entirely
reasonable inference from these facts that any or all three of the occupants had knowledge of, and
exercised dominion and control over the cocaine. ½hus, a reasonable officer could conclude that there
was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or
jointly.

ËË. Ës Probable Cause an Objective or a Subjective Standard?


c In the last decade, the Court has expressly held that the test for probable cause is an objective one.
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Whren v. US: A suspicious truck was stopped for a traffic violation. ½he undercover police officer found
crack cocaine in the passenger¶s hand.
Rule:
±c ½emporary detention o6 individuals during the stop o6 an automobile by the police, even i6
only 6or a brie6 period and 6or a limited purpose, constitutes a ³seizure´ o6 ³persons´
within the meaning o6 this provision. An automobile stop is thus subject to the
constitutional imperative that it not be ³unreasonable´ under the circumstances. As a
general rule, the decision to stop an automobile is reasonable where the police have
probable cause to believe that a tra66ic violation has occurred.
Holding: there was probable cause here b/c of the defendant¶s suspicious actions, illegal u-turn, and
speeding away from the police car. Probable cause is objective and 6ocuses on whether the
reasonable o66icer could have 6ound probable cause under the circumstances; the subjective intent
o6 the o66icer does not matter. ook at what a reasonable police o66icer could have done.

½he Warrant Requirement


c ½he Fourth Amendment states that ³no 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.´
c ½homas: ³court has waivered between a warrant requirement and a general reasonableness test,
they have found a plethora of exceptions , warrantless searches are per se unreasonable, except of
course when they are not. ³
c If you say that you have an incidence in which you say that the search is presumptively
reasonable the burden of proof is on the defendant, if presumptively unreasonable the burden of
proof is on the proseution

Ë. What Ën6ormation Must {e Ëncluded in the Application 6or a Warrant?


Èc Warrants are used both for searches and for arrests
Èc ½he Fourth Amendment requires that the warrant be based on probable cause and ³supported by
oath or affirmation, and particularly describing the place to be searched, and the persons or things
to be seized.´ ½he affidavit supporting the request for a warrant must include the information that
provides a basis for concluding that there is probable cause. ½he affidavit may be based on
hearsay.
Èc ½he warrant will specify the time period for its execution.
Èc ½he Supreme Court has held that the warrant must be issued by a ³neutral and detached
magistrate´.

ËË. What Form Must the Warrant ½ake?


½he warrant must detail with speci6icity that which is to be searched or seized.
Andresen v. Maryland: ½he defendant was suspected of committing false pretenses when selling Lot
13½. ½he investigators concluded there was sufficient probable cause and executed a warrant to search
petitioner¶s law office and the separate office. A judge signed off on the warrant. Defendant was charged
and a jury found him guilty. ½he petitioner says his 4th Amendment rights were violated b/c the
descriptive terms of the search warrants were so broad as to make them impermissible ³general warrants´.
½he warrant described the documents seized as ³together with other fruits, instrumentalities and evidence
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of crime at this time unknown´. Petitioner contends that it permits the search for and seizure of any
evidence of any crime.
Rule
±c General warrants of course, are prohibited by the Fourth Amendment. ½he problem is not that
of intrusion Per se, but of a general, exploratory rummaging in a person¶s belongings.
Holding: ½he challenged phrase must be read as authorizing only the search for and seizure of evidence
relating to ³the crime of false pretenses with respect to Lot 13½´. the challenged phrase is not a separate
sentence. Instead, it appears in each warrant at the end of a sentence containing a lengthy list of specified
and particular items ot be seized, all pertaining to Lot 13½.

½he Supreme Court recently considered the requirement 6or particularity in the warrant in the
context o6 a situation where the a66idavit in support o6 the warrant contained the necessary
particularity, but the warrant itsel6 did not list speci6ically what was to be searched 6or or seized.
½he Court 6ound that this warrant violated the Fourth Amendment.
Groh v. Ramirez: ½he defendant was suspected of possessing illegal weaponry. ½he police requested an
a search warrant. In their application for a search warrant, the police listed where they wanted to search
and what they wanted to seize. Although the application particularly described the place to be searched
and the contraband petitioner expected to find, the warrant itself was less specific; it failed to identify any
of the items that petitioner intended to seize.
Holding: ½he warrant was plainly invalid. ½he Fourth Amendment states unambiguously that ³no
Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the pace to be searched, and the persons or things to be seized.´ ½he warrant in this case
complied with the first three requirements: it was based on probable cause and supported by a sworn
affidavit, and it described particularly the place of the search. On the fourth requirement, however, the
warrant failed altogether. ½he Fourth Amendment by its terms requires particularity in the warrant, not in
the supporting documents.

c Anticipatory Warrants
Anticipatory warrant is where the affidavit for a search warrant states that the search will occur only if
certain events take place. In US v. Grubbs, federal law enforcement officers obtained a search warrant
for respondent¶s house on the basis of an affidavit explaining that the warrant would be executed only
after a controlled delivery of contraband to that location. ½he court held that anticipatory warrants are
permissible.

ËËË. What are the Requirements in Executing Warrants?


c Rule 41 of the Federal Rules of Criminal Procedure provides that the warrant must command the
officer to ³execute the warrant during the daytime, unless the judge for good cause expressly
authorizes execution at another time.´ ½he Rule defines daytime to be the hours from 6 AM to 10
PM. However, there is a federal statute that provides that there does not have to be a special
showing of need for searches of narcotics.

A. How May Police ½reat ½hose Who Are Present When a Warrant is {eing Executed?
ñc ½he Supreme Court has held that a person who happens to be present in premises that are
subject to a search cannot be searched just by virtue o6 being there. Ybarra v. Ëllinois. ½he
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Court explained that a search ³must be supported by probable cause particularized with
respect to that person´
ñc However, in Michigan v. Summers, the Supreme Court held that when there is a search o6 a
residence, those present at the time o6 the search may be detained. ½he Court explained
that allowing such detentions serves may purposes: preventing 6light by the individual in
case incriminating evidence is 6ound; minimizing the risk o6 harm to the police; and helping
the police complete the search in the event that questions arise.
Muehler v. Mena: ½he police were looking for gang related items at Mena¶s home. ½he police
handcuffed Mena and questioned her about her immigration status while the search is happening. ½he
police were looking for deadly weapons. 1983 claim, rights violated.
Holding: the Court reasoned that it was reasonable to detain people who are present at the scene.
Using handcu66s were reasonable because they were looking 6or weapons speci6ically and the
intrusion was only 6or 2-3 hours.

Wilson v. Arkansas
½he door was unlocked, and police officers walk into a screen door and announce themselves as
having a warrant.

{. Do Police Have to Knock and Announce {e6ore Searching a Dwelling?


ñc ½he Supreme Court has held that absent exigent circumstances, the police must knock and
announce their presence be6ore entering a residence to execute a search warrant.
ñc ½he exclusionary rule will not keep out evidence i6 the police did a proper search w/o
knocking and announcing 6irst.½he Court held that the exclusionary rule does not apply to
evidence gained after police violate the knock and announce requirement in Hudson v. Michigan.
ñc ½here is no blanket exception to the knock and announce rule for felonies. Ën order to justi6y a
³no-knock´ entry, the police must have a reasonable suspicion that knocking and
announcing their presence, under the particular circumstances, would be dangerous or
6utile, or that it would inhibit the e66ective investigation o6 the crime by, 6or example,
allowing the destruction o6 evidence.(Richards v. Wisconsin)

C. What Ë6 ½here Are Un6oreseen Circumstances or Mistakes While Executing a Warrant?


±c Ë6 a mistake is made in executing a warrant, the search is permissible so long as the police
action is reasonable.
Maryland v. Garrison: ½he police obtained and executed a warrant to search ³the premises known as
2036 Park Avenue third floor apartment´. ½he police reasonably believed that there was only one
apartment on the premises described in the warrant. In fact, the third floor was divided into two
apartments. Before the officers executing the warrant became aware that there were two apartments, they
had discovered the contraband that provided the basis for respondent¶s conviction.
Holding: ½he Court must judge the constitutionality of the police¶s conduct in light of the information
available to them at the time they acted. We have no difficulty concluding that the officers¶ entry into the
third floor common area was legal; they carried a warrant for those premises, and there were accompanied
by McWebb, who provided the key that they used to open the door giving access to the third floor
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common area. If the officers had known, or should have known, that the third floor contained two
apartments before they entered the living quarters on the third floor, and thus had been aware of the error
in the warrant, they would have been obligated to limit their search to McWebb¶s apartment. ½he
officers¶ conduct and the limits of the search were based on the information available as the search
proceeded«½he Court has also recognized the need to allow some latitude 6or honest mistakes that
are made by o66icers in the dangerous and di66icult process o6 making arrests and executing search
warrants. ½he validity o6 the search o6 respondent¶s apartment pursuant to a warrant authorizing
the search o6 the entire third 6loor depends on whether the o66icers¶ 6ailure to realize the
overbreadth o6 the warrant was objectively understandable and reasonable. ½he objective facts
available to the officers at the time suggested no distinction b/t McWebb¶s apartment and the third floor
premises.

os Angeles County Cali6ornia v. Rettele: Deputies obtained a valid warrant to search a house, but they
were unaware that the suspects being sought had moved out three months earlier. When the deputies
searched the house, they found in a bedroom two residents who were of a different race than the suspects.
½he deputies ordered these innocent residents, who had been sleeping unclothed, out of bed, and they
were naked. ½he deputies required them to stand for a few minutes before allowing them to dress.
Holding: ½he Fourth Amendment allows warrants to issue on probable cause, a standard well short of
absolute certainty. Valid warrants will issue to search the innocent, and people like Rettele and Sadler
unfortunately bear the cost. When o66icers execute a valid warrant and act in a reasonable manner to
protect themselves 6rom harm, however the Fourth Amendment is not violated.

Executing a Search Warrant: Un6oreseen Circumstances


c Information that becomes available either before or during course of search may require police to
cease or narrow search, regardless of warrant. (Garrison & Rettelle)
c ½he officers¶ conduct and the limits of the search were based on the information available as the
search proceeded. While the purposes justifying a police search strictly limit the permissible
extent of the search, the Court has also recognized the need to allow some latitude for honest
mistakes that are made by officers in the dangerous and difficult process of making arrests and
executing search warrants. (Garrison)
c Police can search containers large enough to hold the item for which authorized to search (p.117).
May seize object not described in warrant if Probable Cause to believe item is subject to seizure
c Once police 6ind item described in warrant, must cease searching.

Exceptions to the Warrant Requirement


c ½he exceptions to the warrant requirement include: searches incident to arrest; searches made in
hot pursuit; searches of things in plain view; automobile searches; inventory searches; border
searches and checkpoints; searches at checkpoints; searches of those on probation and parole;
searches with consent; and special needs situations; and exigent circumstances. ½hese exceptions
are not mutually exclusive; more than one can apply in a situation.

c Searches Ëncident to Arrest


c

One well-established exception to the warrant requirement is the ability o6 police to search a person
at the time o6 a law6ul arrest and the area ³within his immediate control´.
Chimel v. Cali6ornia: ½he police searched the defendant house after lawfully arresting him. ½he
evidence was used against him at trial.
Rule:
Èc When an arrest is made, it is reasonable for the arresting officers to search the person arrested in
order to remove any weapons that the latter might seek to use in order to resist arrest or affect his
escape.
Èc In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence
on the arrestee¶s 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.
Holding: ½here is ample justi6ication, there6ore, 6or a search o6 the arrestee¶s person and the area
³within his immediate control´²construing that phrase to mean the area 6rom within which he
might gain possession o6 a weapon or destructible evidence.½here is no comparable justification,
however, for routinely searching any room other than that in which an arrest occurs«Such searches, in
the absence of well-recognized exceptions, may be made only under the authority of a search warrant.

In United States v. Robinson, the Supreme Court held that police may search a person incident to
arrest regardless o6 the crime that led to the arrest.

SË A: Search incident to a law6ul arrest.


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Under SË A, scope o6 search?


Police can search arrestee¶s person, area of immediate control (area from which might gain
weapon or destroy evidence), otherwise known as ³wingspan´ Chimel
Authority to search is automatic, but scope has to be determined on a case-by-case basis.

However, in order 6or there to be a search incident to an arrest, there must actually be an arrest.
Knowles v. Ëowa: 0nowles was stopped for speeding. He was then searched and the police officer found
marijuana. 0nowles moved to suppress the evidence so obtained. He argued that the search could not be
sustained under the ³search incident to arrest´ b/c he had not been placed under arrest.
Issue: An Iowa police officer stopped petitioner for speeding, but issued him a citation rather than
arresting him. ½he question presented is whether such a procedure authorized the officers, consistently
with the Fourth Amendment, to conduct a full search of the car. We answer this question, ³NO´.
Rule:
c

m In Robinson, we noted the two historical rationales for the ³search incident to arrest´ exception:
(1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence
for later use at trial.
Holding: rE˽HER o6 these underlying rationales 6or the search incident to arrest exception is
su66icient to justi6y the search in the present case. rO SË A 6or citation only o66enses.

c Searches Made Ën Hot Pursuit


½he Supreme Court has been most insistent on a warrant requirement when there are searches of a home,
even going so far as to say that warrantless searches and seizures in homes are presumptively invalid. But
the Court has recognized an exception to this when the police enter a home in ³hot pursuit´ of a suspected
felon.
Warden, MD. Penitentiary v. Hayden: We agree with the Court of Appeals that neither the entry
without warrant to search for the robber, nor the search for him without warrant was invalid. Under the
circumstances of this case, the exigencies of the made that course imperative. ½he police were informed
that an armed robbery had taken place and that the suspect had entered 2111 Cocoa Lane less than five
minutes before they reached it. ½hey acted reasonably when they entered the house and began to search
for a man of the description they had been given and for weapons which he had used in the robbery or
might use against them. ½he Fourth Amendment does not require police o66icers to delay in the
course o6 an investigation i6 to do so would gravely endanger their lives or the lives o6 others. Speed
here was essential, and only a thorough search o6 the house 6or persons and weapons could have
insured that Hayden was the only man present and that the police had control o6 all weapons which
could be used against them or to e66ect an escape.

But Payton v. NY is important in making clear that police cannot enter a home without a warrant to make
a routine arrest.
Payton v. rY: A NY statute authorizes police officers to enter a private residence without a warrant and
with force, if necessary, to make a routine felony arrest.
Holding: Ët is a ³basic principle o6 Fourth Amendment law´ that searches and seizures inside a
home without a warrant are presumptively unreasonable. ½he zone o6 privacy is no more clearly
de6ined that when bounded by the unambiguous physical dimensions o6 an individual¶s home. Ën
terms that apply equally to seizure o6 property and to seizures o6 persons, the Fourth Amendment
has drawn a 6irm line at the entrance to the house. Absent exigent circumstances, that threshold
may not reasonably be crossed without a warrant.

Arrests in the Home


c 4th Amendment PROHIBI½S warrantless entry into a suspect¶s home to make a routine arrest, in
the absence of consent or exigent circumstance (PAY½ON v. NY)
c ½o arrest someone in her own home, police must have a warrant for that person and a reason to
believe that the person is present (absent consent or exigent circumstances)

Entry into a home without a warrant:


c Presumption that searches and seizures within the home are unreasonable without a warrant
c For warrantless entry into home to be reasonable, the police must have Probable Cause and
exigent circumstance (Payton)
c

A warrantless entry into a home might be justified by:


c Exigent circumstances: Hot pursuit of a fleeing felon or
c Probable cause to believe that entry is necessary: (1) to prevent imminent destruction of evidence;
(2) to prevent escape; (3) risk of danger to police or other persons

Exigent Circumstnace: Hot Pursuit


c Immediate or continuous pursuit of suspect from scene of crime into a dwelling place (Warden v.
Hayden)
c Rationale: likelihood that important government interst will be frustrated if police

c Plain View and Plain ½ouch


If officers are lawfully present in a place, they may use all of their senses. For example, imagine that an
officer has a warrant to search a home for child pornography. After lawfully entering the home, the
officer sees illegal drugs on a table. ½hey may be seized and used as evidence. In fact, the same is true if
the officer is lawfully in the place for any reason.

Plain view justi6ication 6or a warrantless seizure


Requirement: initial intrusion must be valid under 4th amendment
Incriminating/contraband nature of object is immediately apparent; officer must have probable cause
for this

As Coolidge and Horton make clear, it must be immediately apparent that the seized item is illegal.
½est 6or Plain View:
1. was the o66icer law6ully present?
ñc execution o6 a valid search warrant; in-home arrest with an arrest warrant; during a
search justi6ied under an exception to the warrant requirement; in a public place

2. First, not only must the item be in plain view; its incriminating character must also be
³immediately apparent´. Second, not only must the o66icer be law6ully located in a place 6rom
which the object can be plainly seen, but the o66ice must also have a law6ul right o6 access to the
object itsel6

**It must be remembered that the police are allowed to use all of their senses when they are lawfully
present. Usually, sight is the most important, but it could be ³plain smell´ or ³plain touch´ that is
used by the officer.

An example of the applicability of the ³plain view´ doctrine is the situation in which the police have a
warrant to search a given area for specified objects, and in the course of the search come across some
other article of incriminating character. Where the initial intrusion that brings the police within plain
view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the
warrant requirement, the seizure is also legitimate. ½hus the police may inadvertently come across
evidence while in ³hot pursuit´ of a fleeing suspect. And an object that comes into view during a search
incident to arrest that is appropriately limited in scope under existing law may be seized without a
c

warrant. Àinally, the plain view doctrine has been applied where a police officer is not searching for
evidence against the accused, but nonetheless inadvertently comes across an incriminating object.

Plain View Exception Requirements:


1.c ½he police are legitimately on the premises;
2.c ½hey discover objects that they have probable cause to believe are contraband or 6ruits or
instrumentalities o6 crime; and
3.c ½hey observe such evidence in plain view

Examples:
Èc Ëtems not described in the warrant
Èc Ë6 the police enter a house n hot pursuit
rO½ Applicable: When the o66icers move the ³assumedly stolen´ stereo equipment to better view
the serial numbers, a ³search´ has occurred, 6or which a warrant is required. Ët is because the
stereo was not immediately apparent that the seized stereo was illegal.

Formerly, the Court required that to quali6y under the plain view exception, the evidence had to be
inadvertently discovered. ½he Court departed 6rom this approach however, and now evidence may
constitutionally be seized under the exception even i6 discovery is not inadvertent.
Horton v. Cali6ornia: Officers were searching defendant¶s home under a valid search warrant. ½he
officers did not find the stolen property, however, the officers discovered the weapon used in the robbery
in plain view and seized it. ½he officer testified that while he was searching for the stolen rings, he also
was interested in finding other evidence connecting petitioner to the robbery. ½hus, the seized evidence
was not discovered ³inadvertently´.
Holding: the suggestion that the inadvertence requirement is necessary to prevent the police 6rom
conducting general searches, or 6rom converting speci6ic warrants into general warrants, is not
persuasive b/c that interest is already served by the requirements that no warrant issue unless it
³particularly describes the place to be searched and the persons or things to be seized´ and that a
warrantless search be circumscribed by the exigencies which justi6y its initiation. Once those
commands have been satis6ied and the o66icer has a law6ul right o6 access, however, no additional
Fourth Amendment interest is 6urthered by requiring that the discovery o6 evidence be inadvertent.

Plain touch for ½erry stops and seizures


c During an otherwise valid ½erry pat down if an officer discovers contraband through the sense of
touch, then the officer can seize it but cannot charge him unless there is objective classification of
why the police officer though it was drugs or other contraband
c NO½E: we have not covered ½erry yet. ½erry frisks (reasonable suspicion w/ concern for safety)
are different from arrests
c Minnesota v. Dickerson: incriminating character of the object must be immediately apparent from
the touch; cannot manipulate item to discern character

c ½he Automobile Exception


c One o6 the most important exceptions to the warrant requirement is 6or automobiles; cars
and other movable vehicles can be searched without a warrant i6 there is probable cause.
c

A. ½he Automobile Exception and Ët rationale


Cali6ornia v. Carney: the police search a mini mobile home without a warrant. ½he police had probable
cause that there were drugs in the mobile home. ½he Court ruled: when a vehicle is being used on the
highways, or if it readily capable of such use and is found stationary in a place not regularly used for
residential purposes²temporary or otherwise²the two justi6ications 6or the vechicle exception come
into play. First, the vehicle is obviously readily mobile by the turn o6 an ignition key, i6 not actually
moving. Second, there is a reduced expectation o6 privacy stemming 6rom its use as a licensed
motor vehicle subject to a range o6 police regulation inapplicable to a 6ixed dwelling. At least in
these circumstances, the overriding societal interests in e66ective law en6orcement justi6y an
immediate search be6ore the vehicle and its occupants become unavailable.Here, the mobile home
was an exception to warrantless search b/c (1) it was readily mobile and (2) the vehicle was licensed to
³operate on public streets; was serviced in public places; and was subject to extensive regulation and
inspection. ½he vehicle was so situated that an objective observer would conclude that it was being used
not as a residence but as a vehicle.

c When police have PC to believe that car contains contraband, can search any part of car that
could reasonably hold contraband, including containers
c Rationales: mobility of car, reduced expectation of privacy in cars, highly regulated by gov¶t

Ën Chambers v. Maroney, the Court went even 6urther and held that even i6 the automobile had
been taken to the police station, and thus was not movable, the automobile exception still applies.

Automobile exception requirements:


1.c Probable cause requirement ± be6ore beginning any search at all under the automobile
exception, the police must have probable cause to believe that a moving vehicle, or a vehicle
that has temporarily stopped, contains the 6ruits or instrumentalities o6 crime, evidence o6
crime, or contraband. Probable cause to search may develop as a result o6 observation a6ter
stopping vehicle.
2.c Mobility requirement ± the exigency o6 the automobile¶s mobility excuses the o66icers¶
6ailure to secure a warrant and justi6ies the warrantless search o6 the entire automobile
(interior compartment and trunk)
3.c ower expectation o6 privacy requirement ± the automobile exception applies only to
automobiles, mobile recreational vehicles, boats, and airplanes b/c there is a lesser
expectation o6 privacy than the home, o66ice and personal property.

b. Searches o6 Containers in Automobiles


c ½he Court has held that containers, such as luggage, can be searched without a warrant only if
there are exigent circumstances. United States v. Chadwick. {ut i6 there is probable cause to
search a vehicle, the Court has said that the probable cause extends to the containers within
it.
Cali6ornia v. Acevedo: Respondent entered a house of a known drug dealer at 12:30 PM. He stayed for
about ten minutes, and reappeared carrying a brown paper bag that looked full. ½he officers noticed that
the bag was the size of one of the wrapped marijuana packages sent from Hawaii. Acevedo walked to a
c

silver Honda in the parking lot. He place the bag in the trunk of the car and started to drive away.
Fearing the loss of evidence, officers in a marked police car stopped him. ½hey opened the trunk and the
bag and found marijuana.
Holding: Recognizing that under Carroll, the entire vehicle itself«could be searched without a warrant,
we concluded that prohibiting police from opening immediately a container in which the object of the
search is most likely to be found and instead forcing them first to comb the entire vehicle would actually
exacerbate the intrusion of privacy interests. At the moment when officers stop an automobile, it may be
less than clear whether they suspect with a high degree of certainty that the vehicle contains drugs in a
bag or simply contain drugs. If the police know that they may open a bag only if they are actually
searching the entire car, they may search more extensively than they otherwise would in order to establish
the general probable cause required by Ross«we now hold that the 4th amendment does not compel
separate treatment 6or an automobile search that extends only to a container within the vehicle.
½he interpretation o6 the Carroll doctrine set 6orth in Ross now applies to all searches o6 containers
6ound in an automobile. Ën other words, the police may search w/o a warrant i6 their search is
supported by probable cause.

C. Searches Ëncident to Arrest in Automobiles


Ën Arizona v. Gant, the Court adopts a new rule 6or situations where the driver and passengers are
restrained and do not have access to the car. ½he police may search the interior o6 the car only i6
they reasonably believe that evidence o6 the crime that led to the arrest might be 6ound. We hold
that the Chimel rationale 6or SË A authorizes police to search a vehicle incident to a recent
occupant¶s arrest only when the arrestee is unsecured and within reaching distance o6 the
passenger compartment at the time o6 the search.

c Ënventory Searches
c Ë6 property is law6ully in the possession o6 the police, they may inventory the contents to
protect the owner¶s property while it is in police possession.
|utomobiles
South Dakota v. Opperman: the defendant¶s car was towed due to parking violations. At the impound
lot, the police officer were taking an inventory of the car. ½here they found marijuana. ½he defendant
was arrested for possession of marijuana
Holding: When vehicles are impounded, local police departments generally follow a routine practice of
securing and inventorying the automobile¶s contents. ½hese procedures developed in response to three
distinct needs: the protection of the owner¶s property while it remains in police custody; the protection of
the police against claims or disputes over lost or stolen property; and the protection of the police from
potential danger«½his Court has consistently sustained police intrusions into automobiles impounded or
otherwise in lawful police custody where the process is aimed at securing or protecting the car and its
content«we conclude that in 6ollowing standard police procedures, prevailing throughout the
country and approved by the overwhelming majority o6 courts, the conduct o6 the police was not
³unreasonable´ under the 4th Amendment.

Person¶s Possession
c

Ëllinois v. aFayette: ½he defendant was arrested for disturbing the peace and was taken to the police
station. ½he defendant was carrying a shoulder bag on the trip to the station. ½he officer removed the
content of the bag and found amphetamine pills inside a cigarette case package.
Holding: At the stationhouse, it is entirely proper 6or police to remove and list or inventory property
6ound on the person or in the possession o6 an arrested person who is to be jailed. Ën short, every
consideration o6 orderly police administration bene6iting both police and the public point toward
the appropriateness o6 the examination o6 respondent¶s shoulder bag prior to his incarceration.

c Border Crossing and Checkpoints


½he Supreme Court has made clear that the gov¶t has broad authority to conduct warrantless
searches o6 people, vehicles, and mail entering the border.

½he government has the ability to stop all cars at the border and to conduct warrantless searches. In 2004,
the Court considered whether this includes the ability to take apart a car¶s gas tank without a warrant,
probable cause, or even reasonable suspicion.
US v. Flores-Montano: Custom officials seized 37 kilograms of marijuana from respondent¶s gas tank at
the international border.
Holding: ½he Gov¶t¶s interst in preventing the entry of unwanted person and effects is at its zenith at the
international border. We have stated that ³searches made at the border, pursuant to the longstanding
right o6 the sovereign to protect itsel6 by stopping and examining persons and property crossing
into this country, are reasonable simply by virtue o6 the 6act that they occur at the border. ³ We
conclude that the gov¶t¶s authority to conduct suspicionless inspections at the border includes the
authority to remove, disassemble, and reassemble a vehicle¶s fuel tank.

US v. Ramsey: Custom officials, acting with ³reasonable cause to suspect´ a violation of customs laws,
opened for inspection incoming international letter-class mail without first obtaining a search warrant.
Holding: It was conceded at oral argument that custom officials could search, w/o probable cause and w/o
a warrant, envelopes carried by an entering traveler, whether in his luggage or on his person. Surely no
different constitutional standard should apply simply b/c the envelopes were mailed not carried. ½he
critical 6act is that the envelopes cross the border and enter this country, not that they were
brought in by one mode o6 transportation rather than another. Ët is their entry into this country
6rom without it that makes a resulting search reasonable.

Ëndividuals, o6 course, can be stopped at the border to ensure that they are law6ully entering the
country. {ut more intrusive searches, such as body cavity searches or detentions, require at least
reasonable suspicion.
US v. Montoya-Hernandez: Respondent was detained by customs upon her arrival at LA airport. She
was found to be smuggling 88 cocaine-filled balloons in her alimentary canal, and was convicted.
Holding: We hold that the detention o6 a traveler at the border, beyond the scope o6 a routine
customs search and inspection, is justi6ied at its inception i6 customs agents, considering all the 6acts
surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband
in her alimentary canal.

cCheckpoints
c

½he police may stop a vehicle if they observe a traffic violation and may demand to see the driver¶s
license and the vehicle¶s registration.
Ëntoxicated Drivers (Reasonable)
Michigan Dept. o6 State Police v. Sitz: ½he state established sobriety checkpoints along state roads and
stopped passing vehicles to check for signs of intoxication. If the police suspected intoxication, the
motorist would be directed to a location out of the traffic flow where an officer would check the
motorist¶s driver¶s license and registration, and if warranted, connect more sobriety test.
Holding: a Fourth Amendment seizure has occurred but it is reasonable. ½he balance o6 the State¶s
interest in preventing drunken driving, the extent to which this system can reasonably be said to
advance that interest, and the degree o6 intrusion upon individual motorists who are brie6ly
stopped, weighs in 6avor o6 the state program. We hold that it is consistent with the 4th
amendment.

Ëllegal Drugs (Unreasonable search)


City o6 Ëndianapolis v. Edmond: the city established vehicle checkpoints for illegal drugs.
Holding: We have never approved a checkpoint program whose primary purpose was to detect evidence
of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions
to the general rule that a seizure must be accompanied by some measure of individualized suspicion.
Each of the checkpoint programs that we have approved was designed primarily to serve purposes closely
related to the problems of policing the border or the necessity of ensuring roadway safety. b/c the
primary purpose o6 the Ëndianapolis narcotics checkpoint program is to uncover evidence o6
ordinary criminal wrongdoing, the program contravenes the Fourth Amendment«We decline to
suspend the usual requirement o6 individualized suspicion where the police seek to employ a
checkpoint primarily 6or the ordinary enterprise o6 investigating crimes. We cannot sanction stops
justi6ied only by the generalized and ever-present possibility that interrogation and inspection may
reveal that any given motorist has committed some crime.

Questioning about Recent Crime


Ëllinois v. idster: about one week later at about the same time of night and at about the same place, local
police set up a highway checkpoint designed to obtain more information about the accident from the
motoring public. ½he respondent was driving drunk and the checkpoint officers arrested him for DUI.
Holding: the checkpoint stop here differs significantly from that in Edmond. ½he stop¶s primary law
enforcement purpose was not to determine whether a vehicle¶s occupants were committing a crime, but to
ask vehicle occupants, as member of the public, for their help in providing information about a crime in
all likelihood committed by others. ½he police expected the information elicited to help them apprehend,
not the vehicle¶s occupants, but other individuals.

c Consent (½OC)
A search is permissible without a warrant or even probable cause if there is voluntary consent. ½he
standard for voluntariness was initially articulated in Schneckloth v. Bustomonte

Schneckloth v. {ustamonte: Six men were in a car that was pulled over. ½he car belonged to Alcala¶s
brother, and he was not present. An officer asked Alcala if he could search the car, which Alcala replied,
³sure, go ahead!´ the officers found three checks that had previously been stolen from a car wash.
c

Holding: In determining whether a defendant¶s will was overborne in a particular case, the Court has
assessed the totality of all the surrounding circumstances²both the characteristics of the accused and the
details of the interrogation. In examining all the surrounding circumstances to determine if in fact the
consent to search was coerced account must be taken of subtly coercive police questions, as well as the
possibly vulnerable subjective state of the person who consents. We hold only that when the subject of
his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in
fact voluntarily given, and not the result of duress or coercion, expressed or implied. A search may be
conducted without a warrant or probable cause i6 voluntary and intelligent consent is
given.Voluntariness is a question o6 6act to be determined 6rom all the circumstances, and while the
subject¶s knowledge o6 a right to re6use is a 6actor to be taken into account, the prosecution is not
required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.
Knowledge o6 right to withhold consent is rO½ a prerequisite to proving that intelligent consent
was given.

Who May Give Consent


Georgia v. Randolph: An estranged married couple was claiming that the other was a drug user. ½he
wife moved out with the son two months ago. ½he police first asked the husband if they could search the
house, which he refused. ½hey then asked the wife, and she said yes. ½he police found some contraband
and arrested the husband.
Holding: the police may not act on consent 6rom one occupant i6 a co-occupant is present and
objects to the search and the search is directed against the co-occupant.

c Special reeds Searches


½he Supreme Court has said that there is a category of searches where there are ³special needs,´ wjere
warrants do not need to be obtained and often where less than probable cause is required.

Administrative Searches
Camara v. Municipal Court o6 City and County o6 San Francisco (searching residential
buildings): An inspector of the Divison of Housing Inspection of the San Francisco Dept of Public
Health entered an apartment building to make a routine annual inspection for possible violationsof the
city¶s Housing Code. ½he building manager informed the inspector that appellant, lessee of the ground
floor, was using the rear of his leasehold as a personal residence. Appellant wouldn¶t let the inspector
into his apartment.
Holding: We cannot say that the protections provided by the warrant procedure are not needed in this
context (housing); broad statutory safeguards are no substitute for individualized review, particularly
when those safeguards may only be invoked at the risk of criminal penalty. ½he court needs to obtain a
warrant but not based on probable cause but a lower standard than the criminal context. ½hey
don¶t need individualized suspicion. Such standard, which will vary with the municipal program being
enforced, may be based upon the passage of time, the nature of the building, or the condition of the entire
area, but they will not necessarily depart upon specific knowledge of the condition of the particular
dwelling. It has been suggested that so to vary the probable cause test from the standard applied in
criminal cases would be to authorize a ³synthetic search warrant´ and thereby to lessen the overall
protections of the 4th Amendment.
c

Government inspectors who per6orm administrative searches must have a warrant to


search private residences and commercial buildings. However, the traditional probable
cause standard is relaxed in this area. ½hus a valid administrative inspection warrant does
not requires a showing o6 speci6ic violations o6 laws or o6 particular conditions o6 particular
buildings; a showing o6 a general and neutral en6orcement plan justi6ies issuance o6 a
warrant. Also, probable cause may be based on 6actors such as the passage o6 time, the
nature o6 the building, or conditions in the same geographic area. Random, periodic area
inspections are then permitted.

rew York v. {urger (commercial buildings): for business contexts, the court said that you don¶t
need a warrant nor probable cause b/c o6 the gov¶t regulations.
½he test:
1, there must be a ³substantial´ government interest that informs the regulatory scheme pursuant to
which the inspection is made;
2, the warrantless inspections must be ³necessary to further the regulatory scheme´;
3, ³the statute¶s inspection program, in terms of the certainty and regularity of its application, must
provide a constitutionally adequate substitute for a warrant.´ In other words, the regulatory statute
must perform the two basic functions of a warrant: it must advise the owner of the commercial
premises that the search is being made pursuant to the law and has a properly defined scope, and it
must limit the discretion of the inspection officers.

½o perform this first function, the statute must be ³sufficiently comprehensive and defined that the
owner of commercial property cannot help but be aware that his property will be subject to periodic
inspections undertaken for specific purposes.´

Highly regulated industries exception: a warrant is not required for searches of businesses in highly
regulated industries. ½his exception is based on two theories (1) the urgent public interest involved, and
(2) the implied consent of businesses entering such industries. Furthermore, such regulatory violations
are often easily hidden and a business owner could thwart gov¶t regulation unless warrantless searches
were permitted.

Parolees can be searched at any time.

Drug testing
c Area o6 Employment
Èc Skinner v. Railway Executives¶ Assn.: the Court upheld FRA regulations requiring drug
testing of railroad workers involved in accidents. ½he Court stressed the ³special need to
ensure the safety of the traveling public. ½he court said that the privacy expectations of
the employees were diminished by their working in ³an industry that is regulated
pervasively to ensure safety.´
Èc rational ½reasury Employees Union v. Von Raab: the court upheld urinalysis for
customs workers upon their transfer or promotion to positions having a direct
c

involvement in drug interdiction or requiring the carrying of firearms. ½he Court struck
down the requirement as applied to those who would be handling classified documents.
Èc Chandler v. Miller: the Court struck down a Georgia statute requiring that candidates for
state office pass a drug test. ½he Court stressed that ³Georgia asserts no evidence of a
drug problem among the State¶s elected officials, those officials do not typically perform
high-risk, safety sensitive tasks, and the required certification immediately aids to
interdiction effort.
c School O66icials
Èc rew Jersey v. ½ O: the Court held that school officials could search a student¶s purse
based on reasonable suspicion; there did not need to be a warrant or probable cause. ½he
Court said that ³the Fourth Amendment is applicable to the activities of civil as well as
criminal authorities.´ ½he Court said ³there be reasonable grounds for suspecting that the
search will turn up evidence that the student has violated or is violating either the law or
the rules of the school.´ ½he Court stressed that the search must be reasonable in scope.
It explained that ³the measures adopted are reasonably related to the objectives of the
search and not excessively intrusive in light of the age and sex of the student and the
nature of the infraction.´
Èc Savannah v. Redding:
Èc Vernonia v. Acton: the Court upheld random drug testing for students participating in
athletic events.
Èc {oard v. Earls: the Court upheld random drug testing for students participating in
extracurricular activities
c Hospitals
Èc Ferguson v. City o6 Charleston: the Court held that drug testing of pregnant women,
with results to be used for law enforcement purposes did not fit within the ³special
needs´ exception.

c Exigent Circumstances:
In an emergency, the police can search without a warrant i6 there is probable cause. ½his is often
referred to as exigent circumstances. ½he ability of the police to enter a home when in hot pursuit of a
felon is an example of this. For this exception to apply, it must be an emergency situation justi6ying
warrantless activity and there must be probable cause.

In Welsh v. Wisconsin: ½he defendant was driving erratically at night and swerved off the road into an
open field. ½he defendant left the scene. ½he police arrived at the scene and learned that the defendant¶s
home was a few blocks away and assumed that he just walked home. ½he police went into his home and
arrested him for DUI.
½he search was unconstitutional b/c there was no present danger when the search happened. ½he State
attempts to justify the arrest by relying on the hot pursuit doctrine«on the facts of this case, however, the
claim of hot pursuit is unconvincing b/c there was no immediate or continuous pursuit of the petitioner
from the scene of a crime. Moreover, b/c the petitioner had already arrived home, and had abandoned his
car at the scene of the accident; there was little remaining threat to the public safety.
c

½he Court generally has been reluctant to 6ind exigent circumstances. For example, in Mincey v.
Arizona, the Court rejected a claim that there should be a blanket exception to the warrant
requirement 6or all murder scenes. But police may act w/o a warrant if it is an emergency and the
police believe that entering premises will provide protection.

{righam City, Utah v. Stuart: One exigency obviating the requirement o6 a warrant is the need to
assist persons who are seriously injured or threatened with such injury. Accordingly, law
en6orcement o66icers may enter a home w/o a warrant to render emergency assistance to an injured
occupant or to protect an occupant 6rom imminent injury. An important 6actor to be considered
when determining whether any exigency exists is the gravity o6 the underlying o66ense 6or which the
arrest is being made´. ½he test is objectively reasonable basis 6or believing both that the injured
adult might need help and that the violence in the kitchen was just beginning. ½he Court held that
the officers had the right to enter w/o a warrant.

Seizure and Arrests


c ½he Fourth Amendment, of course, applies to seizures, whether of a person or of his or her
property. Arrests must be based on probable cause, a person may be stopped by the police with
just reasonable suspicion. Both arrests and stops are seizures within the meaning of the Fourth
Amendment. Also, an illegal arrest or stop generally requires the exclusion of the evidence
gained as its result.
Continuum of Police-Citizen Contacts
c Consensual Encounter²Not a 4th Amend seizure
åc No PC or reasonable suspicion needed
åc Person is free to leave
c Stop for investigative purposes ± 4th Amend seizure
åc Need reasonable suspicion
åc Limited in scope (time, what officer can do)
c Arrest
åc Must be based on PC

When is a warrant required 6or an arrest?


c US v. Watson:Warrantless arrests permitted in public i6 based upon Probable Cause that
person (1) has committed a 6elony or is committing a 6elony or (2) is committing a
misdemeanor in the o66icer¶s presence
c US v. Payton: Absent exigent circumstances or consent 6or police to enter, police need a
warrant to arrest someone in her own home
c Va v Moore:½he Court held that warrantless arrests 6or crimes committed in the presence
o6 an arresting o66icer are reasonable under the Constitution, and that while States are 6ree
to regulate such arrests however they desire, state restrictions do not alter the Fourth
Amendment¶s protections.
c ½here is no requirement that a search warrant be obtained the moment the police have
probable cause to search. ½he rule is only that present probable cause be shown and a
warrant obtained be6ore a search is undertaken.
c

½he Fourth Amendment applies to seizure, whether of a person or of his or her property. Arrests must be
based on probable cause, though as discussed in section G, a person may be stopped by the police with
just reasonable suspicion. Both arrests and stops are seizures w/in the meaning of the Fourth Amendment

When Ës A Person Seized?


For an exam question about ³seized´, state was a seizure is and explore both ½erry stop
and 6risk (reasonable suspicion) and arrest (probable cause). Don¶t 6orget to mention that
arrest requires a higher standard. ook at EVERY evidence the o66icer has be6ore he does
either a stop or an arrest in order to determine i6 it is constitutional under the 4th
amendment.
US v. Mendenhall: the defendant was stopped at the airport by a police officer because she looked
nervous and he suspected her of drug trafficking. He asked her to follow him to the DEA office at the
airport and she did. He asked if he could search her bag and told her she could say no, but she came him
permission. He found nothing. He then had a female officer conduct a body search of her, which again
she consented. ½here they found heroin on her.
Holding: We adhere to the view that a person is ³seized´ only when, by means o6 physical 6orce or a
show o6 authority, his 6reedom o6 movement is restrained.We conclude that a person has been
³seized´ within the meaning o6 the Fourth Amendment only i6, in view o6 all the circumstances
surround the incident, a reasonable person would have believed that he was not 6ree to leave
(objective test). Only when such restraint is imposed is there any foundation whatever for invoking
constitutional safeguards. ½he purpose of the 4th Amendment is not to eliminate all contact b/t the police
and the citizenry, but ³to prevent arbitrary and oppressive interference by enforcement officials with the
privacy and personal security of individuals.´ As long as the person to whom questions are put remains
free to disregard the questions and walk away, there has been no intrusion upon that person¶s liberty or
privacy as would under the Constitution require some particularized and objective justification.

{rendlin v. Cali6ornia: {oth driver andPassengers are seized when they are riding in a car that was
stopped by the police

Cali6ornia v. Hodari D.:Officers were in a high crime area of Oakland in plain clothes but wearing
jackets with ³Police´ on both front and back. As their unmarked car turned a corner, they saw four or five
youths huddled around a small red car parked at the curb. ½he youths saw the car and took flight. ½he
officers were suspicious and ran after them. Looking behind as he ran, the defendant tossed away what
appeared to be a small rock. ½he officer then tackled Hodari, handcuffed him, and radioed for assistance.
Hodari was found to be carrying $130 in cash and a pager; and the rock he had discarded was crack
cocaine.
Issue: was the defendant seized when he dropped the drugs? If so, the drugs were the fruit of that seizure
and the evidence should be excluded. If not, the drugs were abandoned by Hodari and lawfully recovered
by the police and should be admitted.
Holding: An arrest requires either physical 6orce (6or example, i6 the o66icer had laid his hands upon
Hodari to arrest him but Hodari had broken away and then cast away the cocaine) or, where that is
absent, submission to the assertion o6 authority. Street pursuits always place the public at risk, and
compliance with police orders to stop should there6ore be encouraged. A person is not seized when
they give chase to the police. In sum, assuming that the officer¶s pursuit in the present case constituted a
c

³show of authority´ enjoining Hodari to halt, since Hodari did not comply with that injunction he was not
seized until he was tackled. ½he cocaine abandoned while he was running was in this case not the fruit of
a seizure, and his motion to exclude evidence of it was properly denied.
Stop and Frisk
c ½here is important differences b/t an arrest and a stop under the 4th Amendment: an arrest
requires probable cause and a stop only requires reasonable suspicion.
c Ë6 a person is arrested, police can do a search incident to the arrest. {ut i6 a person is
stopped, there can be a 6risk only i6 there is reasonable suspicion that the person has a
weapon that might endanger the police.
c Ë6 a person driving a car is arrested based on probable cause, the police may search the car;
but i6 a person is stopped, there can be an inspection only o6 the area where the driver
might obtain a weapon a6ter returning to the car.

c ½he Authority 6or Police to Stop and Frisk


½erry v. Ohio: An officer in plain clothes was patrol a street and two men attracted his attention. He
claims he has never seen him before. ½he officer has been on the force for 39 years and a detective for 35
years. ½he two men appeared to be casing out a store to rob. ½he officer feared that ³they had a gun´.
½he officer followed the two men and then approached them and identified himself as a police officer.
When the men ³mumbled something´ in response to his inquiries, Officer McFadden grabbed ½erry, spun
him around so they were facing the other two, and patted him down the outside of his clothing. In the left
breast pocket, the officer felt a pistol. ½he officer tried to reach inside ½erry¶s coat but was unable to
retrieve the gun. ½he officer testified that he only patted the men down ot see whether they had weapons,
and that he did not put his hands beneath the outer garments of either ½erry or Chilton until he felt their
guns.
Holding: ½he police should be allowed to ³stop´ a person and detain him brie6ly 6or questioning
upon suspicion that he may be connected with criminal activity. Upon suspicion that the person
may be armed, the police should have the power to ³6risk´ him 6or weapons. Ë6 the ³stop´ and the
³6risk´ give rise to probable cause to believe that the suspect has committed a crime, then the police
should be empowered to make a 6ormal ³arrest,´ and a 6ull incident ³search´ o6 the person. ½he
³stop and frisk´ must be based on a reasonable suspicion: µthere is no ready test for determining
reasonableness other than by balancing the need to search against the invasion which the search entails,´
and in justifying the particular intrusion the police officer must be able to point to specific and articulable
facts which, taken together with ration inferences from those facts, reasonable warrant that intrusion. An
in making that assessment it is imperative that the 6acts be judged against an objective standard´
would the 6acts available to the o66icer at the moment o6 the seizure or the search ³warrant a man
o6 reasonable caution in the belie6´ that the action taken was appropriate?We conclude that the
revolver seized from ½erry was properly admitted in evidence against him. At the time he seized
petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that ½erry
was armed and dangerous, and it was necessary for the protection of himself and others to take swift
measures to discover the true facts and neutralize the threat of harm if it materialized.

c ½he Distinction {etween Stops and Arrests


c Examples of Arrests:
c

1.c if a person is detained for sustained interrogation that is an arrest within the meaning of the
Fourth Amendment. For example: an arrest has occurred if police officers take a suspect to the
station for questioning.
2.c ½aking a suspect from the public area of an airport into a small room constituted an arrest.
3.c ½aking a suspect to the police station for fingerprinting is an arrest and needs to be based upon
probable cause
4.c ½he duration of the detention also matters in determining whether there has been a stop or an
arrest: detaining a person¶s luggage for 90 minutes was a seizure under the 4th amendment; a
police officer detained suspects b/t 30-40 minutes while waiting for DEA and the Court said this
was a stop. ½he Court has said that there is no ³hard-and-fast time limit´ b/t a stop and an arrest.

c What May Police Do When ½hey Stop an Ëndividual?


Úc ½erry v. Ohio says that police may 6riskan individual if there are reasonable grounds 6or
believing that the person has a weapon that might endanger the o66icers. In Michigan v.
ong, the Court said that if the police reasonably believe that a person might be dangerous, they
can conduct a limited investigation o6 an area 6rom which a person could obtain a weapon.
½he Court thus said it was permissible for the police to inspect the areas o6 the car 6rom which
the suspect could obtain a weapon after the stopwas completed.
Úc Similarly, the Court has held that when the police arrest a person, they may conduct a
prospective sweep o6 the premises i6 they have reasonable suspicion that a person might be
there who poses a threat to them. In Michigan v. {uie, the Court said that such a sweep ³may
extend only to a cursory inspection of those places where a person may be found´.
Úc When the police 6risk a person, they may seize any evidence that is apparent to their experienced
³plain 6eel´. ½he police may notmanipulate the lining o6 a person¶s clothes to look 6or
evidence.

Hiibel v. Sixth Judicial Dist. Court o6 revada:the defendant was arrested and convicted for refusing to
identify himself during a stop allowed by ½erry v. Ohio. Earlier that day, the police received a call
reporting an assault. An officer approached a truck that looked similar to the caller¶s description. ½he
officer observed skid marks in the gravel behind the truck, leading him to believe it had come to a sudden
stop. ½he officer approached the driver, who appeared drunk, and asked for his identification over 11
times, and the man refused. ½he officer arrested him for willfully delaying or obstructing a police
officer¶s investigation.
Holding: Interrogation relating to one¶s identity or a request for identification by the police does not, by
itself, constitute a Fourth Amendment seizure´. A suspect¶s identity is a routine and accepted part of
many ½erry stops. A state law requiring a suspect to disclose his name in the course of a valid ½erry stop
is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures.

What Ës Su66icient 6or Reasonable Suspicion?


½here is no bright-line rule for determining what is sufficient for reasonable suspicion. But the Supreme
Court has considered this question in a number of contexts.
a)c Reasonable Suspicion for Stopping Cars
c

United States v. Arvizu: A border patrol officer was investigating a car that avoided checkpoint areas
and waited until patrol officer were switching shifts before driving. ½he driver was driving a minivan
which is the vehicle of choice for smugglers. Also, the driver failed to acknowledge the patrol car when
the officer approached him at a stop. ½he children in the back of the van had their feet resting high,
suggesting that their feet were on cargo. ½he officer radioed for a registration check of the minivan and
learned the address was in an area notorious for alien and narcotics smuggling. ½he officer then stopped
the vehicle.
Holding: Courts should look at the ³totality o6 the circumstances´ when determining reasonable
suspicion.A determination that reasonable suspicion exists, however, need not rule out the possibility of
innocent conduct. Undoubtedly, each of these factors alone is susceptible of innocent explanation, and
some factors are more probative than others. ½aken together, we believe they sufficed to form a
particularized and objective basis for Stoddard¶s stopping the vehicle, making the stop reasonable within
the meaning of the Fourth Amendment.

b)c Reasonable Suspicion based on informants¶ tips


Alabama v. White: the police received an anonymous tip claiming that Vanessa White would be leaving
her apartment in a brown Plymouth station wagon with the right taillight lens broken and that she would
be going to Dobey¶s Motel, and that she would be in possession of about an ounce of cocaine inside a
brown attaché case. ½he officers investigated and saw a brown Plymouth station wagon with a broken
taillight at the apartment address given. ½here was nothing in the respondent¶s hands when she entered
the station wagon. ½hey followed the vehicle to Dobey¶s Motel. When the vehicle reached the Mobile
Highway, on which Dobey¶s Motel is located, the officer stopped the vehicle. He asked if he could look
inside her vehicle and she consented. ½he officers found a locked brown attaché case and, upon request,
respondent provided the combination lock. ½he officers found marijuana in the case and placed the
defendant under arrest. During processing at the station, the officers found three milligrams of cocaine in
respondent¶s purse.
Holding: Simply put, a tip such as this one, standing alone, would not ³warrant a man of reasonable
caution in the belief´ that a stop was appropriate. However, in this case there is more than the tip itself.
As there was in D (the probable cause case for informants), however, in this case there is more than
the tip itself. ½he tip was not as detailed, and the corroboration was not as complete, as in Gates, but the
required degree of suspicion was likewise not as high. Reasonable suspicion is a less demanding
standard than probable cause not only in the sense that reasonable suspicion can be established
with in6ormation that is di66erent in quantity or content than that required to establish probable
cause, but also in the sense that reasonable suspicion can arise 6rom in6ormation that is less reliable
than that required to show probable cause. Reasonable suspicion, like probable cause, is dependent
upon both the content o6 in6ormation possessed by police and its degrees o6 reliability. {oth
6actors²quantity and quality²are considered in the ³totality o6 the circumstances´. ½hus, if a tip
has a relatively low degree of reliability, more information will be required to establish the requisite
quantum of suspicion than would be required if the tip were more reliable.

Florida v. J : An anonymous caller reported that a young black male standing at a particular bus stop
and wearing a plaid shirt was carrying a gun. Sometime after²the record doesn¶t say how long²two
officers arrived at the bus stop about six minutes later and saw three black males there. One of the three
was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of
c

illegal conduct. ½he officers didn¶t see a firearm nor did JL make any threats. One of the officers
stopped JL and frisked him and seized a gun.
Holding: ½he officer¶s suspicion that JL was carrying a weapon arose not from any observations of their
own but solely from a call made from an unknown location by an unknown caller. Unlike a tip 6rom a
known in6ormant whose reputation can be assessed and who can be held responsible i6 her
allegations turn out to be 6abricated, an anonymous tip alone seldom demonstrates the in6ormant¶s
basis o6 knowledge or veracity.´ However, an anonymous tip that suitably corroborates the
in6ormation will exhibit ³su66icient indicia o6 reliability to provide reasonable suspicion to make the
investigatory stop´. ½he anonymous call here provided no predictive information and therefore left the
police w/o means to test the informant¶s knowledge or credibility.

c)c Reasonable suspicion based on a person¶s trying to avoid a police o66icer


Ëllinois v. Wardlow: Officers were in a four car caravan patrolling a neighborhood known for heavy
narcotic trafficking. Officer Nolan observed Wardlow standing next to a building holding an opaque bag.
Wardlow saw the officers and fled. Nolan caught him and preformed a pat down on him b/c he knows
that it is common for weapons to be involved in drug transactions.
Holding: In this case, it was not merely respondent¶s presence in an area of heavy narcotics trafficking
that aroused the officer¶s suspicion, but his unprovoked flight upon noticing the police. Our cases have
recognized that nervous, evasive behavior is a pertinent 6actor in determining reasonable suspicion.
Headlong 6light²wherever it occurs²is the consummate act o6 evasion: Ët is not necessarily
indicative o6 wrongdoing, but it is certainly suggestive o6 such. ½he determination o6 reasonable
suspicion must be based on commonsense judgments and in6erences about human behavior. We
conclude Officer Nolan was justified in suspecting Wardlow.

d)c Reasonable suspicion based on pro6iles


US v. Sokolow: the defendant was stopped b/c (1) he paid $2100for two airplane tickets from a roll of
$20 bills; (2) he traveled under a name that did not match the name under which his telephone number
was listed; (3) his original destination was Miami, a source city for illicit drugs; (4) he stayed in Miami
for only 48 hours, even though a round trip flight from Honolulu to Miami takes 20 hours; (5) he
appeared nervous during his trip; and (6) he checked none of his luggage.
Holding: A court sitting to determine the existence o6 reasonable suspicion must require the agent to
articulate the 6actors leading to that conclusion, but the 6act that these 6actors may be see 6orth in a
³pro6ile´ does not somehow detract 6rom their evidentiary signi6icance as seen by a trained agent.
½aken all factors together amounts to reasonable suspicion.

Exclusionary Rule
-- the exclusionary rule states that material obtained in violation of the Constitution cannot be introduced
at trial against a criminal defendant

Hudson v. Michigan: the exclusionary rule does not apply to cases when the police fail to apply the
knock and announce rule properly.

c Who Can Object to the introduction o6 evidence and raise the exclusionary rule?
c

Rakas v. Ëllinois: A police officer received a call that a clothing store had been robbed. ½he call gave a
description of the getaway car. ½he officer located a car that matched the getaway car¶s description. ½he
officer stopped the car. ½he petitioner and two female companions were in the car. Officers illegally
searched the car and discovered a box of rifle shells in the glove compartment which had been locked and
a sawed-off rifle under the front passenger seat. ½he petitioners concede that they did not own the car and
were only passengers in the car. ½hey move to suppress the evidence.
Holding: ½he Court held that only those whose Fourth Amendment rights were violated may raise
the exclusionary rule.the 6ocus in determining who can raise the exclusionary rule is on whether a
person¶s Fourth Amendment rights were violated, which generally turns on whether a person has a
reasonable expectation o6 privacy? here, the petitioners didn¶t have any privacy rights violated because
it was not their car nor did they have a reasonable expectation of privacy within another¶s person¶s glove
compartment or area under the seat of the car. Like the trunk of an automobile, these are areas in which a
passenger qua passenger simply would not normally have a legitimate expectation of privacy.

On the exam:
c First ask, does the defendant have an expectation of privacy (0atz)
c Second, do they have standing to object? (Rakas)
c third, was this expectation violated? (was there probable cause? Does it fall under a warrant
exception?

When Can Visitors in a person¶s Home Raise the Exclusionary Rule?


Minnesota v. Carter: An officer, while collaborating an informant¶s story, observed people putting a
white powder into bags through a gap in the closed blind of an apartment window. When the two men
who were bagging left the building, the police stopped them. ½he officers found 47 grams of cocaine and
a handgun when they searched the men. ½he officer went back to the apartment to arrest the occupant,
½hompson, still inside. ½he police later learned that while ½hompson was the lessee of the apartment, the
two men lived in Chicago and had come to the apartment for the sole purpose of packaging cocaine for 2
½ hours.
Holding: the court will have to determine whether these men had a legitimate expectation of privacy. ½he
text of the Amendment suggests that its protections extend only to people in ³their´ houses. In Minnesota
v. Olson, the Court decided that an overnight guest in a house had the sort of expectation of privacy that
the Fourth Amendment protects. An overnight guest in a home may claim the protection o6 the
Fourth Amendment, but one who is merely present with the consent o6 the householder may not.
½he respondents have no expectation of privacy b/c they were there essentially for a business transaction.

hen can passengers in a person¶s car raise the exclusionary rule?


{rendlin v. Cali6ornia: A police officer pulled 0aren Simeroth, the driver, over to verify that the permit
matched the vehicle, even though, the officer admits, there was nothing ususual about the permit or the
way it was affixed. ½he officer learned that Bruce Brendlin, the passenger, had an outstanding no bail
warrant for his arrest. ½he officer arrested Brendlin and conducted SILA and found an orange syringe. A
pat down of Simeroth, the driver, revealed syringes and marijuana. Officers then searched the car and
found tubing, a scale, and other things used to produce methamphetamine. Brendlin was charged with
methamphetamine possession, due to the car¶s content. He moved to suppress b/c officers lacked
probable cause to stop the car.
c

Holding: A passenger in a vehicle is seized the moment the driver¶s car comes to a halt on the side of the
road. Brendlin has standing and the evidence should be suppressed.

Exceptions to the Exclusionary Rule


1.c Ëndependent Source ± even if the police obtain evidence in violation of the Fourth Amendment,
it is still admissible if it is also obtained through a source independent of the police misconduct
and untainted by the illegal actions of the police.
Murray v. US: After lawfully seizing a vehicle that contained marijuana, several agents converged onto
the warehouse where the vehicle just left, without a warrant. ½hey found the warehouse unoccupied, but
observed in plain view burlap wrapped bales that were later found to contain marijuana. ½he police left
w/o the bales, kept the warehouse under surveillance, and did not re-enter until they obtained a search
warrant. ½he warrant was issued eight hours afterwards and the agents did not mention the prior entry to
get the warrant. ½he police re-entered the warehouse with the warrant at hand and seized all 270 bales of
marijuana.
Holding: the interest of society in deterring unlawful police conduct and the public interest in having
juries receive all probative evidence of a crime are properly balanced by putting the police in the same,
not a worse, position that they would have been in if no police error or misconduct has occurred«when
the challenged evidence has an independent source, exclusion o6 such evidence would put the police
in a worse position than they would have been in absent any error or violation. Where an unlawful
entry has given investigators knowledge of facts X and Y, but fact Z has been learned by other means,
fact Z can be said to be admissible b/c derived from an independent source.

2.c Ënevitable Discovery (preponderance o6 the evidence) ± if the police can demonstrate that they
inevitably would have discovered the evidence, even w/o a violation of the Fourth Amendment,
the exclusionary rule does not apply and the evidence is admissible.
rix v. Williams: the defendant was suspected of killing a ten year old girl. Police surmised that Williams
left the girl¶s body somewhere b/t Des Moines and the Grinnell rest stop. ½here was a large scale search
and searchers were instructed to check all roads, abandoned farm buildings, ditches, culverts, and other
places in which a small child¶s body could be located. ½he police illegally obtained a confession from
Williams about where the body was located. ½he defense wants to suppress the confession and the body
b/c it is fruits of an illegal coercion. However, the gov¶t argues that they would have found that body
anyways because the body was located within the designated search area.
Holding: Ë6 the prosecution can establish by a preponderance o6 the evidence that the in6ormation
ultimately or inevitably would have been discovered by law6ul means²here the volunteers¶
search²then the deterrence rationale has so little basis that the evidence should be received.

3.c Exclusionary Rule applies only to police action that is deliberate or reckless or grossly
negligent, or the result o6 systemic department violations/ Good Faith Exception
US v. eon: ½he police executed a search warrant, which was facially valid, to search defendant¶s home.
½he search yielded large quantities of drugs. At an evidentiary hearing, the court decided the warrant was
not based on sufficient evidence to produce probable cause and as such the search was illegal. ½he court,
however, admitted it was a close call.
Holding: Searches pursuant to a warrant will rarely require any deep inquiry into reasonableness
6or a warrant issued by a magistrate normally su66ices to establish that a law en6orcement o66icer
c

has acted in good 6aith in conducting the search. revertheless, the o66icer¶s reliance on the
magistrate¶s probable cause determination and on the technical su66icient o6 the warrant he issues
must be objectively reasonable, and it is clear that in some circumstances the o66icer will have no
reasonable grounds 6or believing that the warrant was properly issued.
Exception to Good Faith Exception: Suppression remains an appropriate remedy i6 the magistrate
or judge in issuing a warrant was misled by in6ormation in an a66idavit that the a66iant knew was
6alse or would have known was 6alse except 6or his reckless disregard o6 the truth. Or where the
issuing magistrate wholly abandoned his judicial role. ror would an o66icer mani6est objective
good 6aith in relying on a warrant based on an a66idavit ³so lacking in indicia o6 probable cause as
to render o66icial belie6 in its existence entirely unreasonable´.
Herring v. US: Herring was no stranger to law enforcement. A police officer at Coffee County checked
to see if there were any outstanding warrants for Herring, and there were not. ½he officer then asked
another county if they had any outstanding warrants, to which they replied they did. After he left the
police station to get his impounded trunk, the police officer arrested him for this outstanding warrant.
½hey then completed a search incident to a lawful arrest (SILA) and they found meth in his pocket and a
pistol in his trunk (he was a felon). ½here was a mistake in the warrant b/c it was recalled five months
earlier. At this happened within ten minutes before the mix-up could be fixed.
Holding: ½here is no exclusionary rule i6 the police mistaken conduct in executing an arrest
warrant, which then leads to SË A, was made in good 6aith. If the police have been shown to be
reckless in maintain a warrant system, or to have knowingly made false entries to lay the groundwork for
future false arrests, exclusion would certainly be justified under our cases should such misconduct cause a
Fourth Amendment violation.

4.c Ënadequate Causal Connection ± Attenuation o6 the ½aint


c ½he Supreme Court has made clear that all evidence that is the product of the illegal police
activity²the fruit of the poisonous tree²must be excluded. Conversely, if the link b/t the illegal
police act and the evidence is attenuated, then the evidence is admissible.
Wong Sun v. US: Police illegally broke into Wong Sun¶s laundry and adjacent apartment. ½he police
handcuffed Wong Sun and held him at gunpoint. Wong Sun made incriminating states. Wong Sun was
arrested, charged, and released on his own recognizance. Subsequently, he was questioned by an agent
who informed Wong Sun of his right to remain silent and to consult a lawyer. Wong Sun again gave
incriminating statements.
Holding: Wong Sun¶s statements to the police at the time of his arrest had to be excluded as the fruits of
his unlawful arrest. By contrast, the Court said that Wang Sun¶s later confession was admissible b/c the
connection with the earlier illegal police activity ³became so attenuated as to dissipate the taint.´

{rown v. Ëllinois: the police illegally searched the defendant¶s home and arrested him at gunpoint. ½hey
took Brown to the police station and read him his Miranda rights. For a couple of hours, Brown asked
questions about killing a man named Corpus. ½he officers then had Brown help them locate his co-
defendant in a patrol car. After they obtained the co-defendant, the police question Brown again at the
station and again give him his Miranda rights. Half an hour later, a court reporter appeared and Brown
gave a second statement. Brown refused to sign his typed confession. ½he court introduced statements
from both interrogations.
c

Holding: Confessions resulting from a seizure in violation of the defendant¶s fourth Amendment rights
(e.g. resulting from a warrantless seizure) may be admissible in some circumstances. In such cases,
courts look to factors such as (1) whether the defendant was informed of his constitutional rights to
remain silent and to the assistance of counsel, (2) the closeness in time of the detention and the
confession, (3) the purpose of the government action, and (4) the flagrancy of the official behavior.
Brown¶s statement was separated from his illegal arrest by less than two hours, and there was no
intervening event of significance whatsoever. We could hold Brown¶s first statement admissible only if
we overrule Wung Sun. We decline to do so. And the second statement was clearly the result and the
fruit of the first. ½he Illinois court were in error in assuming that the Miranda warnings, by themselves,
under Wung Sun always purge the taint of an illegal arrest.

Ënterrogations
½he privilege against self-incrimination arises in many contexts, including during police interrogation.
Police questioning of suspects is a crucial investigative tool.

c ½he Requirement 6or Voluntariness


{rown v. Mississippi: A confession was brutally beaten out of black defendants.
Holding: Con6essions gained involuntarily are inadmissible as violating the Fi6th Amendment¶s due
Process.

c Determining Whether a Con6ession Ës Voluntary


Ë6 an interrogation went on over a very long period o6 time, it is more likely to be deemed
involuntary, especially where a suspect has been denied sleep, 6ood, water, and/or access to a
restroom. For example, in Ashcra6t v. ½ennessee, a confession was deemed involuntary when a suspect
was not permitted to sleep for 36 hours during which the interrogation occurred. In Payne v. Arkansas,
the fact that the suspect was given no food for 24 hours was import to the Court¶s conclusion that the
confession was involuntary.

A con6ession obtained a6ter a de6endant is physically coerced or threatened with physical 6orce, is
not voluntary.

Arizona v. Fulminante: In 1982, the 11-year-old stepdaughter of one Oreste Fulminante was murdered
in Arizona. Later, Fulminante was incarcerated for an unrelated crime. While in prison, Fulminante met
Anthony Sarivola, a fellow inmate, who was also a confidential informant for the Federal Bureau of
Investigation. Sarivola offered Fulminante protection from "tough treatment" in prison in exchange for a
confession to the murder of Fulminante's stepdaughter. Fulminante agreed, confessing to Sarivola that he
murdered his stepdaughter. As a result, Fulminante was charged with the murder, and his confession to
Sarivola was used against him at trial.
Holding: We agree with the Arizona Supreme Court¶s conclusion that Fulminante¶s confession was
coerced. ½he Arizona Supreme Court found a credible threat of physical violence unless Fulminante
c

confessed. Our cases have made clear that a 6inding o6 coercion need not depend upon actual
violence by a government agent; a credible threat is su66icient.

Spano v. rY: Spano was an immigrant in his mid-twenties with a junior high school education. He shot a
person after a bar fight. He fled the crime scene and was indicted for murder while he was in hiding.
Spano called Gaspar Bruno, a close friend of his who training to become a police officer. Spano told
Bruno that the deceased had injured him, and that he intended to get a lawyer and turn himself in to law
enforcement. Bruno relayed the information to his superiors. Spano, along with his newly appointed
attorney, turned himself in the day following his conversation with Bruno. Spano was questioned
continuously for several hours and was told he could not consult with his attorney. ½he police provided
him with dinner during his first night of questioning. ½he following day, Spano was transferred to another
police station where questioning continued. He was again denied assistance of counsel. Bruno, upon
police instructions, told Spano that he could get into trouble if Spano did not confess although Bruno's job
was not really in jeopardy. Bruno approached Spano four times before Spano gave a statement; each time
questioning had resumed, Spano requested assistance of counsel. Police escorted Spano to the location
where they believed he had disposed of the murder weapon. While searching for the weapon, Spano
confessed.
Holding: the confession was involuntary b/c (1) use of ³childhood friend´; (2) foreign born man; (3) def¶s
low education level; (4) questioned by many officers; (5) eight straight hours of interrogation before
confessing; and (6) conducted all night.

Deception:
c In ynumn v. Ëllinois, a suspect was told that if she cooperated and answered the questions, she
would not be prosecuted for marijuana sale. But she was told that if she did not cooperate, she
would face ten years in prison and have her children taken away from her. She told the police
that she would say whatever they wanted. ½hey told her to admit the marijuana sale and she did.
½he Court found the confession involuntary.
c Although deception can make a confession involuntary, the Court has been tolerant of many
police techniques. For example: if the police lie to a suspect and tell him that is accomplice had
already confessed. Also, if the officer acts a friend to the suspect and expresses sympathy for the
suspect¶s plight.

Age, Level of Education, and Mental Condition of A Suspect:


c For example, in Payne, in finding a confession involuntary, the court stressed that the suspect had
a fifth grade education. In Culombe v. Connecticut, the Court emphasized that the suspect was
illiterate and of low intelligence. By contrast, in Crooker v. California, the Court noted that the
suspect had completed one year of law school.
c In Colorado v. Connelly: A con6ession is to be deemed involuntary, regardless o6 the
de6endant¶s mental condition, only i6 it is the product o6 police misconduct. ½he test 6or
voluntariness is whether ³the con6ession was the product o6 an essentially 6ree and
uncontrained choice by its maker´

Miranda Warnings
c

Prior to any questioning, the person must be warned that he has a right to remain silent, that any
statement he does not make may be used as evidence against his, and that he has a right to the
presence o6 an attorney, either retained or appointed. ½he de6endant may waive e66ectuation o6
these rights, provided the waiver is made voluntarily, knowingly, and intelligently. Ë6, however, he
indicates in any manner and at any stage o6 the process that he wishes to consult with an attorney
be6ore speaking there can be no questioning. ikewise, i6 the individual is alone and indicates in
any manner that he doesn¶t wish to be interrogated, the police may not question him. ½here mere
6act that he may have answered some questions or volunteered some statements on his own so does
not deprive him o6 the right to re6rain 6rom answering any 6urther inquires until he has consulted
with an attorney and therea6ter consents to be questioned.
What are the requirements 6or Miranda to apply?
Miranda requires that during in-custodial interrogation police administer the prescribed warnings, make
counsel available; and behave as described in the decision. ½herefore there are three key questions arise
in applying Miranda:
1.c When is a person ³in custody´?
2.c What is interrogation?
3.c What police actions are sufficient to meet the requirements of Miranda?

hen Is a Person ³In Custody´?


c ½he court found that a person who has been arrested is in custody and Miranda warnings must be
given even if the questioning occurs in a person¶s home.
Oregon v. Mathiason: the officer was investigating a burglary and the victim accused the defendant of
the crime. ½he officer put a note asking him to call because he had some questions. ½he defendant came
to the police station and was taken into an office for some questioning. ½he defendant was told he was
not under arrest. ½he door was closed. ½he officer told the defendant that his fingerprints were found at
the scene, which was a lie. ½he defendant confessed within five minutes of being lead into the office.
½he officer then read the defendant his Miranda rights. He was free to leave.
Holding: {y custodial interrogation, we mean questioning initiated by law en6orcement o66icers
a6ter a person has been taken into custody or otherwise deprived o6 his 6reedom o6 action in any
signi6icant way (objective test). In the present case, there is no indication that the questioning took place
in a context where respondent¶s freedom to depart was restricted in any way. He came voluntarily to the
police station, where was informed he was not under arrest and he was able to leave afterwards.

Yarborough v. Alvarado: Our decisions make clear tha the initial determination o6 cutody depends
on the objective circumstances o6 the interrogation, not on the subjective views harbored by either
the interrogating o66icers or the person being questioned.

Is a Person in Custody for Purposes of Miranda at a routine traffic stop?


{erkemer v. McCarty: An officer observed the defendant¶s car weaving in and out of its traffic lane.
½he officer stopped defendant and asked him to get out of his car. ½he officer noticed that the defendant
was having difficulty standing. ½he defendant¶s speech was slurred and difficult to understand. Defendant
could not perform a ³balancing test´ without falling. ½he officer then asked the defendant if he had
consumed any intoxicants. Defendant said that he drank two beers and smoked several joints of marijuana
shortly before being stopped. ½he officer then arrested the defendant and took him to the county jail
c

where the defendant took an intoxilyzer test. ½he test results were negative for the presence of alcohol.
½he officer then resumed questioning the defendant. ½he defendant responded affirmatively when asked
if had been drinking. When asked if he was under the influence of alcohol said "I guess, barely." At no
time was the defendant advised of his Miranda rights.
Holding: a tra66ic stop is more analogous to a so called ½erry stop than a 6ormal arrest. ½he
similarly noncoercive aspect o6 ordinary tra66ic stops prompts us to hold that persons temporarily
detained pursuant to such stops are not ³in custody 6or the purposes o6 Miranda. We conclude that
the Miranda sa6eguards come into play whenever a person in custody is subjected to either express
questioning or its 6unctional equivalent.

What is an ³Ënterrogation´?
If police are questioning a person, that is an interrogation; if a person blurts out something to the police
without being questioned, that is not an interrogation.

RË v. Ënnis: ½he suspect was arrested and read his Miranda rights and refused to talk without a lawyer.
½he police put him in the back of the patrol car. ½he two officers in the patrol car never questioned the
defendant but had a conversation about, what if a young girl found the gun the defendant murdered
someone with. After hearing this conversation, the defendant showed the police where the gun was
located.
Holding:½hat is to say, the term interrogation under Miranda re6ers not only to express
questioning, but also to any words or actions on the part o6 the police that the police should know
are reasonably likely to elicit an incriminating response 6rom the suspect.Here, the respondent was
not ³interrogated´ within the meaning of Miranda, for the conversation b/t the police officers included no
express questioning of the respondent.

Arizona v. Mauro: an individual was in police custody and indicated that he did not wish to answer any
questions until a lawyer was present. ½here is no interrogation when an o66icer allowed a suspect to
speak with his wi6e in the presence o6 a police o66icer.

Ës it an interrogation i6 a police in6ormant speaks to a person who is in custody?


Ëllinois v. Perkins: ½he police placed an uncover police officer in a jail cell with an informant and the
suspect of a murder. ½he undercover police officer asked the def, when all three were devising a plan to
escape jail, whether he killed anyone. ½he defendant confessed to the crime in detail.
Holding: Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect¶s
misplaced trust in one he supposes to be a fellow prisoner. As we recognized in Miranda: Confessions
remain a proper element in law enforcement. Any statement given freely and voluntarily w/o any
compelling influences is admissible in evidence. Miranda was not meant to protect suspects from
boasting about their criminal activities in front of persons whom they believe to be their cellmates. Ët is
not an interrogation i6 the de6endant willingly con6essed to an undercover cop.

What Ës Required o6 the Police?


Under Miranda, the police must administer the prescribed warnings; they must provide an attorney if one
is request; they must stop questioning a suspect who is in custody if the suspect requests an attorney or
says that he does not wish to answer future questions. But what deviations from this are allowed?
c

In Cali6ornia v. Prysock: the Court has never indicated that the ³rigidity´ of Miranda extends to the
precise formulation of the warnings given a criminal defendant. ½his court and others have stressed as
one virtue of Miranda the fact that the giving of the warnings obviates the need for a case by case inquire
into the actual voluntariness of the admissions of the accused. rothing in these observations suggests
any desirable rigidity in the 6orm o6 the required warnings.Quite the contrary, Miranda itself
indicated that no talismanic incantation was required to satisfy its stricture«It is clear that the police in
this case fully conveyed to respondents his rights as required by Miranda. He was told of his right to have
a lawyer present prior to and during interrogation, and his right to have a lawyer appointed at no cost if he
could not afford one.

Duckworth v. Eagan: at issue is the warning: if and when you go to court, you may have a lawyer. ½he
Court found that (1) this intrusion accurately described the procedure for the appointment of counsel in
Indiana«(2) Miranda does not require that attorneys be producible on call, but only that the suspect be
informed that he has the right to an attorney before and during questioning, and that an attorney would be
appointed for him if he could not afford one.

What are the consequences o6 a violation o6 Miranda?


Miranda is clear that a confession obtained in violation of its requirements, as well as a confession
deemed involuntary, must be excluded from evidence. ½he more difficult question concerns the extent to
which the police may use the knowledge that they gain from questioning in violation of Miranda or
whether the use of the information must be suppressed as the ³fruit of the poisonous tree´.

Oregon v. Elstad: at the defendant¶s home, the police asked the def. whether he was involved in a
burglary. ½he def. confessed to his involvement. ½he police then took the def. to the station and read him
his Miranda rights. ½he def again confesses and signs a document that has his confession on it.
Holding: a violation o6 Miranda does not prohibit evidence obtained a6ter the illegal con6ession 6rom
being admissible; in other words, no suppress due to ³6ruit o6 the poisonous tree´ (no poisonous fruit
due to improper Miranda warning) If errors are made by law enforcement officers in administering the
prophylactic Miranda procedures, they should not breed the same irremediable consequences as police
infringement of the Fifth Amendment itself. It is an unwarranted extension of Miranda to hold that a
simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances
calculated to undermine the suspect¶s ability to exercise his free will, so taints the investigatory process
that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. ½hough
Miranda requires that the unwarned admission must be suppressed, the admissibility o6 any
subsequent statement should turn in these circumstances solely on whether it is knowingly and
voluntarily made«We must conclude that, absent deliberately coercive or improper tactics in obtaining
the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a
presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has
given a voluntary but unwarned statement ordinarily should suffice to remover the conditions that
precluded admission of the earlier statement.

***½he Supreme Court returned to the issue of when information gained in violation of Miranda can be
used as evidence in two decisions in 2004. In Missouri v. Seibert, the Court held that subsequent
c

statements must be excluded, even if Miranda warnings were given before the statements were repeated.
But in US v. Patane, the Court said that tangible evidence could be introduced even if it resulted from
violations of Miranda.

Missouri v. Seibert: the police officer testified that he made a ³conscious decision´ to withhold Miranda
warnings, thus resorting to an interrogation technique he had been taught: question first, then give the
warnings, and then repeat the question ³until I get the answer that she¶s already provided once´. ½his
tactic was an end run around Miranda: ³Because the question first tactic effectively threatens to thwart
Miranda¶s purpose of reducing the risk that a coerced confession would be admitted and b/c the facts here
do not reasonably support a conclusion that the warnings given could have served their purpose, Seibert¶s
postwarning statements are inadmissible.

United States v. Patane: Officers were reading the def his Miranda rights but the defendant interrupted
and asserted that he knew his rights and neither officer attempted to complete the warning. (the defendant
has to be told his Miranda rights and therefore there was a violation here)
Rule: Our cases also make clear the related point that a mere failure to give Miranda warnings does not by
itself violate a suspect¶s constitutional rights or even the Miranda rule. It follows that police do not
violate a suspect¶s constitutional rights by negligent or even deliberate failures to provide the suspect with
the full panoply of warnings prescribed by Miranda.
Holding: there is therefore no reason to apply the ³fruit of the poisonous tree´ doctrine. It is not for this
Court to impose its preferred police practices on either federal law enforcement officials or their state
counterparts. Although it is true that the Court requires the exclusion of the physical fruit of actually
coerced statements, it must be remembered that statements taken without sufficient Miranda warnings are
presumed to have been coerced only for certain purposes and then only when necessary to protect the
privilege against self-incrimination.

Exceptions to Miranda
1.c Ë6 the statements are used 6or impeachment purposes
c In Harris v. rY, the Court held that statements gained from a criminal defendant are
admissible for impeachment purposes if the defendant chooses to testify at trial.
2.c Ë6 the statements were obtained in an emergency situation
c In rY v. Quarles, the Supreme Court held that statements obtained by police from
suspects during emergency situations could be used against a criminal def even if
Miranda warnings were not properly administered.
c We think police officers can and will distinguish almost instinctively b/t questions
necessary to secure their own safety or the safety of the public and questions designed
solely to elicit testimonial evidence from a suspect
3.c Ë6 the statements were made at the time o6 booking the suspect in response to routine
questions by the police
c ½he Supreme Court has held that the police can ask a person questions when taking a
person into custody that are needed in the booking process, such as name, address, date of
birth, height, and weight. ½he court has said that the answers to these questions are
admissible even without administration of Miranda warning.
c

In Muniz (drunk guy questioned during booking), the Court held that the slurred speech that was evident
on the videotape did not violate the privilege against self-incrimination b/c it was not testimonial. ½he
privilege against sel6 incrimination applies only i6 a person is compelled to make statements;
physical evidence or observations o6 physical characteristics are not testimonial. Muniz¶s answers
to the 6irst seven questions are nonetheless admissible b/c the questions 6all within a ³routine
booking questions´ exception which exempts from Miranda¶s coverage questions to secure the
biographical data necessary to complete booking or pretrial services.
½                 
       
4.c Ë6 the suspect waived his or her rights under Miranda
c ½he Court said that the government would have a ³heavy burden´ of demonstrating ³that
the defendant knowingly and intelligently waived his privilege against self-incrimination
and his right to retained or appointed counsel. ½he Court said that ³a valid waiver will
not be presumed from the silence of the accused after warnings are given or simply from
the fact that a confession was in fact eventually obtained.
c In rC v. {utler, the Court is going to look at the ½OC in waivers. An express written
or oral statement of waiver of the right to remain silent or of the right to counsel is
usually strong proof of the validity of that waiver, but is not inevitably either necessary or
sufficient to establish waiver.
c ½he Supreme Court has ruled that whether there was a waiver is to be determined
6rom the totality o6 the circumstances. ½his includes considering the ³juvenile¶s age,
experience, education, background, and intelligence, and into whether he has the
capacity to understand the warnings given him, the nature o6 his Fi6th Amendment
rights, and the consequences o6 waiving those rights.
c Can there be a knowing and voluntary waiver if police withhold from a suspect the
information that an attorney sought to consult with him? ½his knowledge and the
resulting consultation might well have prevented the incriminating statements. In Moran
v. Burbine, the Court resolved this issue in favor of the police. A suspect in a murder
case waived his Miranda rights, including his right to counsel, and confessed. ½he
suspect¶s sister had hired an attorney who telephoned the police station and was told that
no interrogation would occur until the next day. At no point was the suspect told that
there was an attorney who had been retained and wanted to see him. ½he Court found no
constitutional violation and said that ³events occurring outside o6 the presences o6 the
suspect and entirely unknown to him can have no bearing on the capacity to
comprehend and knowingly relinquish a constitutional right.
c ½he police have no duty to inform a suspect of the nature of the crime for which he or she
is under suspicion
c For the right to remain silent, the Court has been willing to 6ind waivers in these
situations where the de6endant speaks to police a6ter initially invoking the right to
remain silent.
Michigan v. Mosley: the defendant was questioned for a burglary crime. He was given his Miranda
rights. He said he did not want to answer any questions about the robberies; therefore, the police had to
stop, which they did. ½he defendant was then questioned about a murder. He was given his Miranda
c

rights here too. ½he interrogation by the police lasted approximately 15 minutes, and at no time during its
course did Mosley ask to consult with a lawyer or indicate that he did not want to discuss the homicide.
Holding: We there6ore conclude that the admissibility o6 statements obtained a6ter the person in
custody has decided to remain silent depends under Miranda on whether his ³right to cut off
questioning´ was ³scrupulously honored´ (they need to re-read Miranda and obtain a waiver or the
de6endant could have reinitiated it). this is not a case, there6ore, where the police 6ailed to honor a
decision o6 a person in custody to cut o66 questioning, either by re6using to discontinue the
interrogation upon request or by persisting in repeated e66orts to wear down his resistance and
make him change his mind. In contrast to such practices, the police here immediately ceased the
interrogation, resumed questioning only after the passage of a significant period of time and the provision
of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of
the earlier interrogation. We conclude that the admission in evidence of Mosley¶s incriminating
statement did not violate the principles of Miranda
c For the right to counsel, the test is different and stricter. Remember the defendant can
invoke his rights at any time during questioning.
In Davis v.US, the defendant was given Miranda and waived his right. Later on, during questioning, he
says, ³Maybe I should talk to a lawyer´. ½he Court held that the suspect has to be clear and unambiguous
when requesting counsel.
Holding: We held in Miranda that a suspect is entitled to the assistance of counsel during custodial
interrogation even though the Constitution does not provide for such assistance. We held in Edwards,
that i6 the suspect invokes the right to counsel at any time, the police must immediately cease
questioning him until an attorney is present. {ut we are unwilling to create a third layer o6
prophylaxis to prevent police questioning when the suspect might want a lawyer. Unless the
suspect actually requests an attorney, questioning may continue.
c If a defendant requests counsel at any time then the police have to stop questioning
(similar to right to remain silence). However, unlike the right to remain silence, the
police cannot go back and ask questions later. Edwards
Maryland v. Shatzer: the defendant is questioned about sexually abusing his son. Questioning stopped
after the defendant requested his attorney. ½he defendant returns to the general public. ½he case is
closed. ½wo and half years later, the police reopen the case and question the defendant again. He is read
Miranda again. ½he defendant made incriminating statements before requesting an attorney. At no point
did he request an attorney nor refer to the other interrogation.
Holding: the statements are admissible. Ëncarceration is ³in custody´ 6or Miranda purposes. ½he
court says this waiver is only applicable 6or a two week period.

Admissibility of statements:
Úc If a suspect is being subjected to custodial interrogation and makes a statement, inquires for the
court is:
±c Were the Miranda warning properly given
±c And if so, did the suspect give a valid waiver of his Miranda rights? OR
±c Did suspect invoke any of his rights under Miranda?

Assuming rights have been properly given, was there a waiver?


Question is: did the suspect knowingly, voluntarily and intelligently waive his or her rights?
c

c If no express written or oral statement of waiver, presumption of no waiver


c Waiver can be inferred from actions and words of person being interrogated, but mere
silence is not enough (butler)
c ½ES½: ½otality of the circumstances for 0nowingly, intelligently, and voluntarily

½he Sixth Amendment Right to Counsel and Police Ënterrogations


½he Sixth Amendment provides that ³in all criminal prosecutions, the accused shall enjoy the right to
have the Assistance of Counsel for his defense.´ Of course, one of the most important aspects of the
Sixth Amendment is ensuring counsel at trial for those accused of crimes involving possible
imprisonment.
ñc ½he Sixth Amendment right to counsel applies to police interrogations that occur after adversarial
proceedings have begun; that is, the Court has said that the Sixth Amendment applies when
judicial proceedings have been initiated against the accused ³whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment.´
Di66erence between Fi6th and Sixth Amendment
ñc Fifth Amendment: under Miranda v. Arizona applies only to in-custodial interrogations;
ñc Sixth Amendment: applies to all efforts by the police to deliberately elicit statements from a
person after formal criminal proceedings have been initiated.

When does it Attach? (Sixth Amendment)


ñc Only after adversary judicial criminal proceedings have been initiated against accused.
÷c For example, 6th a right to counsel attaches at or after the time that judicial proceedings
have been initiated against person.
÷c For example: first appearance, arraignment on misdemeanor, indictment, presentment
ñc Custody not required; nor is interrogation
ñc Automatic attachment, no request required
ñc Applies even when suspect doesn¶t know being interrogated.

What is prohibited, a6ter attachment?


ñc Deliberate elicitation of incriminating statements
ñc Defined as surreptitious elicitation or over police interrogation
ñc For example. ³Christian burial speech´ was a deliberate and designed plan to elicit information.

½he Sixth Amendment Right to Counsel During Ënterrogations


Massiah v. United States (p. 467)
Facts: Massiah (def) was arrested on drug charges after being indicted. He was released on bail and
made incriminating statements to a former accomplice who was secretly working for the police. He was
convicted on the basis of the statements, and he appealed, contending he had been forced to self-
incriminate. ½he court of appeals affirmed, and the Supreme Court granted certiorari.
Ëssue: May authorities use incriminating statements gained form an accused secretly after he has been
indicted and in the absence of counsel?
Holding: No
ñc Authorities cannot use incriminating statements gained secretly a6ter indictment and in the
absence o6 counsel. Massiah was denied his Sixth Amendment right by the admission o6
evidence at trial o6 his own incriminating words, which 6ederal agents had deliberately
elicited 6rom him a6ter he had been indicted and in the absence o6 his counsel?
c

ñc He believed he was speaking to an accomplice. He was not warned that he was speaking to a
police agent. ½herefore, he was compelled to self-incriminate and the statements must be held
inadmissible. Reversed.

Escobedo v. Ëllinois (p. 470)


ñc ½he Court extended the Sixth Amendment right to counsel to those who were questioned by
the police but had not yet been 6ormally charged.
ñc Facts: Escobedo had been arrested on suspicion of murder, but he had not been formally charged.
During the police questioning, he several times requested a lawyer. Even though his mother had
retained an attorney for him, the police refused to allow Escobedo to meet with the lawyer. ½he
police obtained incriminating statements from Escobedo and the question was whether they had
to be excluded.
ñc Holding: ½he police behavior violated the Sixth Amendment right to counsel. He stressed that
the police had shifted from a ³general investigation of an unsolved crime´ to accusations directed
at Escobedo. Although Escobedo had not been indicted, ³the Court found this distinction
irrelevant. ½he Court said that Massiah was applicable b/c ³no meaningful distinction can be
drawn between interrogation of an accused before and after formal indictment.´

Subsequent cases have made clear that the Sixth Amendment right to counsel applies only after the
initiation of formal adversarial proceeding. In Kirby v. Ëllinois, the Court held that the Sixth
Amendment right to counsel at police identi6ication procedures such as lineups) applies only ³at or
a6ter the initiation o6 adversary judicial criminal proceedings ± whether by way o6 6ormal charge,
preliminary hearing, indictment, in6ormation, or arraignment.

{rewer v. Williams (p. 471)


Facts: Williams (def), who was arrested for the murder of a young girl, immediately invoked his right to
counsel and his right to remain silent in counsel¶s absence. He was transported w/o counsel, between
cities and was asked by the transporting officer to reveal the location of the body so that it could receive a
³Christian burial.´ Williams led the officer to the body and was subsequently convicted. He brought a
petition for habeas corpus contending the evidence, i.e., the body, was obtained in violation of his right to
counsel. ½he district court granted the petition, and the court of appeals affirmed. ½he Supreme Court
granted certiorari.
Ëssue: May custodial interrogation continue once the right to counsel has been invoked?
Holding: No
ñc Once the right to counsel has been invoked and the suspect has re6used to answer, any
evidence obtained through continued custodial interrogation is inadmissible.½he questioning
in the car was clearly aimed at obtaining evidence in contravention of Williams¶s asserted right to
remain silent and to have his counsel present during questioning. ½he right clearly was not
waived and thus was violated. As a result, the evidence was inadmissible. Affirmed.

½exas v. Cobb (p. 477)


Facts: Cobb (def) gave a written statement confessing to the burglary of his neighbor¶s house and was
indicted. He later confessed to the killing of his neighbor¶s wife and daughter, which he had previously
denied. He was convicted of capital murder for the murder of more than one person in the course of a
criminal transaction and sentenced to death. He appealed, contending that his confession should be
suppressed b/c it was obtained in violation of the Sixth Amendment right to counsel. ½he court of
criminal appeals reversed, and remanded, concluding that the right to counsel had attached on the capital
murder charge when Cobb was charged w/ the burglary b/c the crime were ³factually interwoven,´ even
though he had not yet been charged w/ murder.
c

Ëssue: Does the Sixth Amendment right to counsel extend to crimes that are ³factual related´ to hsoe that
have actually been charged?
Holding: No
ñc ½he Sixth Amendment right to counsel does not extend to crimes that are ³6actual related´
to those that have actually been charged. ½he Sixth Amendment right o6 counsel is o66ense
speci6ic and cannot be invoked once 6or all 6uture prosecutions since it does not attach until
a prosecution has commenced.
ñc ½his court had held that a defendant¶s statements regarding offenses for which he had not been
charged were admissible notwithstanding the attachment of his Sixth Amendment right to counsel
on other charged offense. Some courts, however, had carved an exception for crimes that are
³factual related´ to a charge offense. We decline to support this view. However, we do hold that
the Sixth Amendment right to counsel, when it attaches, does encompass o66enses that even
i6 not 6ormally charged would be considered the same o66ense under the {lockburger test.
ñc ½he test to be applied to determine whether there is more than o66ense is whether each
provision requires proo6 o6 a 6act that the other does not. As defined, by ½exas law, capital
murder and burglary are not the same offense under Blockburger. ½hus, the police were not
barred from interrogating Cobb regarding the murders and his confession was admissible.
Reversed.

Montejo v. A (129 S.Ct. 2079)


Facts: Defendant is charged w/ murder. After his preliminary hearing, his Sixth Amendment right to
counsel has attached. ½hey gave him a lawyer but he didn¶t request for his lawyer. After the hearing he
was in jail until police questioned him and had Montejo accompany them to look for the murder weapon
(Montejo waived Miranda rights). Montejo wrote a letter of apology to the victim¶s widow. Montejo¶s
court appointed lawyer didn¶t with him until after the interrogation. ½he letter was used against Montejo
at trial. Montejo says his Sixth Amendment right had been violated under Jackson v. Michigan
Holding: ½he court must presume whether waiver was invalid. ½he defendant waived his rights under
Miranda. (p. 37) Jackson represents that ³wholesale interpretation of the Edwards rule into the Sixth
Amendment.´ ½he Jackson Court decided that a request for counsel at n arraignment should be treated as
an invocation of the Sixth Amendment right to counsel ³at every critical stage of the prosecution,´ despite
doubt that defendant ³actually intend request for counsel to encompass representation during any further
questioning,´ b/c doubts must be ³resolved in favor of protecting the constitutional claim.´ Citing
Edwards, the Court held that any subsequent waiver would thus be ³insufficient to justify police-initiation
interrogation.´ In other words, we presume such waivers involuntary ³based on the supposition that
suspects who assert their right to counsel are unlikely to waive that right voluntarily´ in subsequent
interactions with the police.
ñc ½his case makes a new rule from Jackson. ½he court didn¶t find Jackson to be a workable rule.

Patterson v. Ëllinois (p. 485)


ñc ½he Court held that Massiah does not apply to a defendant who is not represented by counsel and
has never requested counsel. ½he Supreme Court expressly distinguished Jackson on the grounds
that the defendant there had expressly invoked his right to counsel. ½he Court found that the
defendant¶s waiver of his right to counsel under the Fifth Amendment pursuant to Miranda was
also sufficient for a waiver of the Sixth Amendment right to counsel.

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