Criminal Procedure Pre-Trial

Prof. Cain Spring 2011

CHRIS CH. 1-4ish

Chapter 1: Study of Criminal Procedure

I. Bill of Rights as ratified limited only the actions of the Federal Government a. 14th Amendment was ratified in 1868, provided that no state shall deprive citizens of life, liberty, or property without due process of law. i. Thus incorporating the Bill of Rights into the 14th amendment, thus also applying to actions by the states. 1. Whether it was fundamental in the context of the criminal processes maintained by the American states.(Warren-Court) a. Fourth Amendment: i. Mapp v Ohio(1961): Exclusionary Rule ii. Ker v California (1963): Full Scope of 4th Am. b. Fifth Amendment: i. Malloy v Hogan(1964): Privilege against Self-Incrimination. ii. Benton v Maryland(1969): Ban against Double-Jeopardy c. Sixth Amendment: i. Klopfer v NC(1967): Right to Speedy Trial ii. Duncan v Louisiana(1968): Right to Jury Trial iii. Gideon v Wainwright(1963): Right to Appointed Counsel iv. Pointer v Texas(1965): Right to Confront/Cross-Examine v. Washington v Texas(1967): Right to Compulsory process for obtaining witness. d. Eighth Amendment: 1. Robinson v California(1962): Ban against cruel and unusual punishment b. POST-WARREN COURT: FOUR THEMES i. Ultimate Mission of the Criminal Justice System is to convict the guilty and let the innocent go free.

1. Exclusionary Rule: Its application has received less than enthusiastic support from post-warren court 2. Miranda Rule: Confessions which are coerced are excluded. a. Confession obtained in violation of Miranda may be used if show that confession was uncoerced b. Admissible in the prosecutions case in chief if questioning was necessitated by an objective threat to the safety of the public or to protect the rights of the criminal defendants. ii. Court believes State Judges can be entrusted to enforce federal constitutional rights. iii. Michigan v Long: A State Court relying on state constitutional provisions may nonetheless be subject to federal review unless the decision clearly indicates that it is based solely on state law. 1. CENTRAL PROBLEM of CRIMINAL PROCEDURE a. How best to protect the rights and interest of the criminally accused without at the same time unduly inhibiting law enforcemnent. II. STAGES OF CRIMINAL PROCESS a. COMPLAINT i. Private Citizen 1. Investigate Complaint, question witness, examine physical evidence. a. Have enough for Probable Cause i. Go to Magistrate for an arrest warrant for sulprit ii. Possibly a Search Warrant authorizing search of house. ii. Police Directly Observe what looks like Criminal Activity 1. Most often no time to secure a warrant. a. Probable Cause i. Police have probable cause to believe an individual has committed or is committing a crime, they may arrest him w/o a warrant. b. No Probable Cause i. Police may still question him, if probable cause develops, may arrest him. b. ARREST 2

i. SEARCH 1. During arrest the police may conduct a search of individual 2. May question him concerning the alleged offense ii. Taken to Stationhouse iii. Formal Interrogation c. INITIAL APPEARANCE (Judicial Officer) i. Informed of the Charge ii. Of his right to counse/remain silent 1. Felony Cases a. IF NO ARREST WARRANT i. Magistrate must determine whether there is probable cause to detain individual b. ARREST WARRANT i. Must Determine whether to be released, subject to bail, or detained. d. PRELIMINARY HEARING i. Prosecutor must formalize charges against Defendant. 1. Some States merely file an information describing charges. 2. Go to Grand Jury and obtain indictment stating charges. 3. Usually make out a prima facie case on the charges in the information during a preliminary hearing in front of the magistrate. III. CONSTITUTION ALLOWS a. Constitution allows the Defendant to demand counsel only at certain stages of pretrial process: (Counsel usually appointed at Initial Appearance) i. Interrogation ii. Lineup Identification IV. Counsel can Make Several Pretrial Motions a. Dismissal b. Change of Venue c. Suppression of Illegally Obtained Evidence d. Discovery of Evidence 3

e. Implementation of a Statutory speedy trial V. PLEAS a. Not Guilty b. Guilty c. Nolo Contendre i. (Guilty/Nolo Contendre) Plea must be voluntarily and intelligently entered. ii. Not Guilty 1. The Case is Set for Trial. a. Most Cases Entitle to a Trial by Jury: 12 ppl in Federal Court 2. VOIR DIRE (Choose Jury) 3. Notice of Alibi or Insanity Defense must be made prior to Case. VI. TRIAL a. Prosecution i. Bears the Burden of Proving each element of the crime beyond a rsbl doubt b. A verdict is reached and sentence imposed c. Jury Trial: Separate Hearing for Sentencing normally. VII.APPEAL a. Bail Question may Arise b. Some State have automatic appeal, others State Courts discretionary. i. After Sentencing and Appeal 1. Defendant may collaterally attack the verdict through a writ of habeas corpus

PART A. THE 4TH AMENDMENT: SEARCH AND SEIZURE LAW

The Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizuresno 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. 1. Citizenry protection against intrusion into their privacy. (unreasonable search/seizure) 4

2. Warrants must meet certain requirements before they are regarded as valid.

CHAPTER 2: EXCLUSIONARY RULE AND OTHER REMEDIES

INTRODUCTION Exclusionary Rule- a prohibition against use of evidence obtained through methods which violate the Constitution. Exclusionary Rule: method of deterring the police from engaging in UNCONSITUTIONAL searches and seizures. o First used in Boyd v United States

GENESIS OF THE RULE Exclusionary rule was first applied to the states under the Fourteenth Amendments Due Process clause in Wolf v. Colorado (1949). Mapp v Ohio (1961): Made the exclusionary rule binding on the states. o REASONING: both deterrence of police misconduct and maintaining judicial clean hands.

States still had the general power to determine what constituted a reasonable search/seizure. Ker v California (1963): State courts must apply federal standards to the lawfulness or reasonableness, unless the state standard is more restrictive than federal standard.

THE SCOPE OF THE RULE Evidence obtained in violation of the 4th Am must be excluded at trial in both federal and state prosecutions a. Criminal Proceedings Other Than Trial a. BALANCING TEST: Balancing the deterrent effect against the costs of its application i. US v Calandra (1974): Witness could not refuse to answer questions merely because evidence was obtained unlawful search/seizure. 1. STANDING: A witness cannot challenge a violation of someone elses privacy rights. a. Stone v Powell: Exclusionary Rule not use in Habeus Corpus Proceedings. b. Pennsylvania v Scott: Exclusionary Rule not use in Parole Revocation Proceedings i. REASONING: Parole officers are more supervisory than adversarial. b. Non-Criminal Proceedings 5

a. DETERRENCE FACTOR: Whether the Civil Proceeding falls outside the offending officers zone of primary interest. i. Must have a deterrent effect. (use Calandra balancing-test) 1. Juvenile Delinquency Proceeding: E.R. has been applied 2. Administrative Proceedings: E.R. has been applied. c. The Reasonable Good Faith Exception a. Exclusionary Rule should not apply when police are reasonably unaware they are violating the Fourth Amendment i. REASONING: Has No Deterrent Effect 1. Examples: Reliance on Warrants, Statutes, Court Records, and Officers own Perceptions 2. Apply Calandras Balancing-Test b. (1) RELIANCE on Warrants i. NO PROBABLE CAUSE; however GF belief Warrant was Valid = Ok 1. State v Leon: Evidence may be used when obtained by police acting on authority of a warrant subsequently unsupported by probable cause, provided they had an objective good faith belief the warrant was valid. 2. State v Leon: Warrant application was based on information supplied by a confidential informant of unproven liability. Warrant must be issued by a neutral and detached Magistrate. ii. DEFECTIVE ON ITS FACE= ok. Massachusetts v Sheppard 1. UNLESS: So lacking in indicia of probable cause as to render belief in its existence entirely unreasonable. 2. Massachusetts v Sheppard: Warrant, on its face, authorized only a search for controlled substances. Argued particularity requirement. (Officer who conducted search had drafted an affidavit with sufficient facts to establish PC for seized items, judge could only find controlled substance warrant for) =GF Exception c. (2) RELIANCE on Statutes i. BALANCING RULE: Deterrent Effect 1. An officer should not be required to anticipate that a court would later hold the ordinance unconstitutional.

d. (3) RELIANCE on Records and Reports i. BALANCING RULE: Deterrent Effect 1. Good Faith reliance on computer records should not trigger the exclusionary rule. 2. Arizona v Evans: D was arrested by police at a traffic stop, computer indicated outstanding warrant, ensuing search of car led to marijuana. (Arrest warrant had been quashed 17days prior) a. Good Faith Exception Applied e. (4) Reliance on the Searching Officers Observations i. UNCLEAR f. IMPEACHMENT EVIDENCE Against the Defendant i. Evidence obtained through an illegal search and seizure is excludable from the prosecutions Case-in-Chief 1. However, evidence obtained through an illegal search may be used as evidence to impeach the defendant if he takes the stand. a. DETERRENT EFFECT: Excluding evidence from case-in-chief is the deterrent effect. b. Walder v US (1954): Court approved used of illegally seized heroin two years prior to impeach D statement that he had never purchased/possess narcotics in the past. c. US v Havens (1980): Authorized use of illegally seized items to contradict stmts about the crime charged as well. i. REASONING: Exclusion only minimally deter police misconduct, and at same time encourage perjury by D. d. Havens: Illegally seized T-shirt with cutouts to sew pockets for undershirt for the purpose of carrying cocaine in suitcase. D denies knowledge of swatches. Gov. allowed to introduce illegally seized t-shirt to impeach Ds credibility. Against other Witnesses ii. State is prohibited from impeaching a witness other than the D with illegally obtained evidence. 1. REASONING: (1) It is likely to deter outright falsification by other witnesses. (2)Would stop Ds willingness to put witnesses on stand. (3)Would give police more incentive to violate 4th Am. The Fruit of the Poisonous Tree Doctrine 7

iii. Expands the scope of the Exclusionary Rule. 1. Doctrine may lead to exclusion of evidence procured through lawful means. (ex: confession obtained hours after illegal seizure) a. Rationale: Doctrine of Deterrence 2. Silverthorne Lumber v US: D failed to produce documents the gov. discovered in illegal search. (Excluded) iv. In determining when fruit of police illegality is admissible, three doctrines have been developed by the courts: (only exclude evidence which would have a significant deterrent effect) 1. The attenuation doctrine 2. Independent source doctrine 3. Discovery Doctrine

Attenuation Doctrine: (Wong Sun v US)

Whether the derivative evidence has been come at by exploitation of initial illegality or instead by means sufficiently distinguishable to be purged of the primary taint 1. EX: Confession acquired immediately following an unlawful arrest where narcotics were found on 2nd defendant solely on defendants declarations= Excluded 2. Ex: 2nd Defendant goes to station house several days after being released yet voluntarily makes statements= Not excluded, even though he was located due to unlawful arrest.

a. Whether the confession is an act of free will i. Were Miranda Warnings given prior to commission? ii. Temporal Proximity of the illegal police conduct/statements. iii. Presence of Intervening circumstances/events iv. Purpose and Flagrancy of the official misconduct

Dunaway v New York (1979): Police brought D to stationhouse soon after a robbery/murder for an interrogation without probable cause to arrest. 8

Miranda Warnings were given Dunaway confessed to robbery/murder RULING: Confession must be suppressed. Detention for custodial interrogation. Confession followed so closely upon the detention and the polices conduct as to the confession could not be separated from the initial legality. o DETERRENT EFFECT: To hold otherwise would allow law officers to violate the 4th with impunity.

Taylor v Alabama (1982) o o o Miranda Rights were Given 3times 6hrs had elapsed between arrest/confession Defendant was permitted to see friends RULING: Insufficient intervening events to *attenuate* the taint of arrest.

Rawlings v Kentucky (1980): Statements were made within 45 minutes of arrest and were admissible. o o Miranda Rights were given Defendant was in his house, congenial atmosphere o o o Companions were present

Statements were spontaneous rather than a response to direct questioning Polices violations was not intentional; GF Mistake Defendant did not argue his admission was involuntary.

MOST IMPORTANT FACTORS: Intervening Events , Flagrancy of Police Misconduct

Most of the cases in which the Attenuation Doctrine has surfaced have involved the analysis of when a confession obtained as result of a 4th Am violation is admissible. Attenuation Doctrine may also be used as part of the fruit of an illegal seizure such as for Identification of a person or another search 9

I: Whether an Identification during a properly conducted lineup should be admissible despite the fact it resulted from an illegal arrest. Browns Factors: (1)Intervening Events, (2)Voluntariness of the Ds participation in lineup, (3)Flagrancy of the arrest. United States v. Ceccolini: Police Officer stopped to talk to his friend Hennessy at work in the Defendants Shop. Officer peeked into a package w/ money and gambling slips. Learned the package belonged to Boss from Friend. FBI had been conducting an investigation of gambling operations. Officer reports to FBI. 4months later FBI interviews Hennessey, 1.5 years after the search, Hennessey testimony helped convict the Boss. RULING: (1)Length of the Road between the search and testimony. (2)Witness testified on her own free wil, (3) Absence of evidence that the objectict of searching package was to obtain a witness against the Boss.

Typical Poisonous Tree: The illegality is an arrest or search not founded on probable cause. o (Browns Factors)

Atypical Poisonous Tree: FAIL to get a warrant, not for lack of probable cause. o New York v Harris: Without a warran, arrest the D in his home several days after developing PC. Obtain incriminating stmts from D while at his home and after taken to stationhouse. RULING: According to Payton v New York, requires an arrest warrant for nonexigent home arrests. Statements in home should be excluded as fruit of the Payton violations. Exclusion also of stationhouse statements.

Hudson v Michigan: (Knock and Announce Violation) Officers searched and found drugs/weapons. Police must knock and announce their presence unless they have reasonable suspicion to believe that evidence will be destroyed or a suspect will escape or harm others. Scalia: Deterrence of knock/announce is not worth a lot. o RSBL suspicion is easily met so police have little incentive.

PROBABLE CAUSE Knock/Announce 1. Reasonable suspicion that evidence will be destroyed 10

2. Reasonable suspicion that suspect will escape or harm others. a. REASONING: When a violation results from want of a 20sec pause, and a lawful search lasting 5hrs discloses evidence, the failure to wait at door cannot propery have caused the discovery of evidence.

The Independent Source Doctrine

Both Silverthorne and Nardone recognized that when the government can establish evidence was obtained from a source independent of the illegal action, exclusion should not result. Segura v United States: Evidence found from police illegally entering an apartment pursuant to a valid search warrant is admissible, so long as the warrant is based on information wholly unconnected with the intitial entry and its known to the police before the entry. Segura: Was arrested in the lobby of his apartment building, the police then secured the apartment for 19hours pending arrival of a warrant based on information developed before entry. o RULE: Evidence discovered pursuant to the execution of a warrant is admissible. Post-arrest entry is illegal= inadmissible. Anything the police discovered during the illegal entry would be inadmissible, including items they could have legally seized pursuant to a warrant.

Murray v United States: (Precedent over Segura) Evidence discovered during the initial illegal entry is admissible if it is also discovered during a later search pursuant to a warrant based on information obtained wholly independent of the intitial entry. Murray: Police suspected the D were storing marijuana and a warehouse, they went in the warehouse first instead of seeking a warrant. They found marijuanabut no people. Police successfully received a search warrant based on no mention of discovered marijuana or prior entry. o MUST CONVINCE: a trial court that no information gained from the illegal entry affected the Law Officers decision to seek a warrant or decision to grant it. Murray encourages warrantless searches of house when the police believe they have probable cause.

The Inevitable Discovery Exception

If it can be proven that the derivative information would have been discovered by the police regardless of their unconstitutional acts, the evidence will be admissible.

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Nix v Williams: Body of a young girl allegedly killed by the D- was found as a result of questioning the Defendant about the bodys location in the absence of counsel and in violation of an express promise not to do so. o A volunteer search party was 2.5 miles away from the body and would have searched the area in the next few hours. Court allowed statements in(1)Police did not act in Bad Faith and (2)Evidence in question would have been discovered by lawful means. [Preponderance of the Evidence] o Requiring GF is not as important: motivation of offending officer is irrelevant to inevitable discovery analysis.

REASON FOR UNFAVORABLE DISSENT: Police would have no disincentive to engage in illegality when they believe that they already have a legal source or that one will shortly develop.

Should the Exclusionary Rule be Abolished?

Only a small percentage of cases in which charges are brought are actually dismissed on Fourth Amendment grounds.

REMEDIES for Unconstitutional Police Conduct

Civil Suits seeking monetary damages and injunctive relief Criminal Actions Non-Judicial Remediea

DAMAGES:
a. Federal or State Actor? Individual Officer or Governmental Entity?

Federal Officers
1. Bivens v 6unknown Agents: Permitted suit against Federal officers who, without warrant, had searched/ransacked aparatment. a. Must: i. acting under color of authority ii. must have deprived the individual of his constitutional rights under constitutional provision ii. DEFENSE: Absolute Immunity v Qualified Immunity iii. ABSOLUTE IMMUNITY 12

Federal Judges / Prosecutors 1. FACTORS: a. The need to assure that the individual can perform his functions without harassment or intimidation b. The presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct c. Insulation from political influence d. Importance of precedent set by the individual e. The Adversary nature of the process used by the individual in making decisions f. The correctability of error on appeal. iv. QUALIFIED IMMUNITY Federal Agency Heads / Presidential Aides / POLICE If there is no clearly established rule at the time the act occurred, then no liability attaches. If the alleged actions of the police would have been believed to reasonably lawful, the suit may be dismissed on a motion of summary judgment. QUALIFIED IMMUNITY is not just a defense to liability, but prevents suit altogether. 1. Under the Facts alleged by the P, did a constitutional violation occur? 2. Whether the officers contrary belief in its lawfulness, based on facts known to him, was reasonable? 3. Whether the officers actions were excessive under the 4th AM? FEDERAL TORTS CLAIM ACT (FTCA) = Depends on State Law Prima Facie case against the Government exists if the plaintiff can prove: 1. Damage to or loss of property, or death or bodily injury, which was 2. Caused by a negligent or wrongful act 3. Committed by a federal emplolyee acting within the scope of employment 4. In a state where the act committed would lead to legal liability for a private person. o IMMUNITY (BARS RECOVERY): False Arrest, False Imprisonment, Abuse of Process, Assault, Battery, and Malicious Prosecution. 13

Sovereign Immunity is not waived on claims arising in a foreign country o Sosa v Alvarez-Machain: Bars claims against the US that are based on injury suffered in another nation. (even if some aspects occurred in the US) Machain: The planning of the alleged tortuous kidnapping of the plaintiff occurred in Californiabutthe kidnapping itself took place in Mexico, therefore barred the FTCA suit.

Bivens action: may not be brought against Federal Agencies. Correctional Services Corporations v Malesko: Court extended that ruling to suits against private corporations performing federal functions (ex: prisons).

Bivens actions are meant to deter individual federal officers.

State Officers 1983

1983 provides that any person who under color of state law deprives another of any rights, privileges, or immunities secured by the constitution and laws shall be liable in an action at law, suit in equity, or toher proper proceeding for redress. FACTORS 1. Must be committed by a person acting under color of state law a. Scope of his employment 2. Must have deprived the complainant of rights, privileges or immunities secured by the Constitution of the United States. a. Need not be intentional, may be negligent. QUALIFIED IMMUNITY under 1983: Police is protected from liability for actions which are reasonable in light of clearly established legal standards. o Malley v Briggs: a warrant authorizing an officers actions does not automatically make them reasonable. Briggs: Officer being sued for wrongfully searching the plaintiffs home claimed that because he be believed in GF that information he provided to magistrate established PC, he should be immune to suit under 1983. NOT A DEFENSE IF: a reasonable well-trained officer in petitioners position would have known his affidavit failed to establish PC. o Officers should be exposed to liability for unreasonable warrant requests

SUED INDIVIDUALLY: Most Executive Branch State/Local Officials- Police Chiefs, Governors, Agency Heads. (STILL HAVE GF DEFENSE) IMMUNITY: JUDGES and PROSECUTORS EXCEPTION: A prosecutor who fabricates evidence is liable under 1983. 14

Unconstitutional advice to Police Officers

State Governmental Units 1983

Monell v. Department of SS v New York: Local Governments are immune from suit under 1983. City of Canton v Harris: Failure to train claim may be the basis for 1983 liability. o MUST: amount to deliberate indifference to the rights of persons with whom the police come into contact. For liability to attachthe identified deficiency in a citys training program must be closely related to the ultimate injury.

FAILURE TO TRAIN: Harris ensures that municipalities will not be liable under 1983 for injuries stemming from most non-routine violations of the constitution by their police, under failure to train theory.

Owen v City of Independence: Held that municipalities doe not enjoy good faith immunity from liability. (However, municipalities are not liable for punitive damages)

State Officials acting in their official capacity may not be sued under 1983. Will v Michigan Dept of State Police: The State is not a person under 1983 and thus cannot be subject to a suit claim.

Summary:
The Exclusionary Rule cannot financially compensate victims for their injuries. o Provide no remedy at all for the innocent victim

Damages Action: If successful, has the advantage of make the offending officer pay for the violation. (Offending officer always has the good faith defense)

INJUNCTIVE RELIEF
b. Usually means that Plaintiff must prove that repeated violations have occurred and that further violations are imminent and cannot otherwise be stopped. b. Lankford v Gelston: Police had on 300 occasions in 19 days, conducted warrantless searches of the appellants and other persons home, relying on anonymous tips. a. RULING: Court granted injunctive relief focusing on: i. # of illegalities,

ii. flagrancy of misconduct, and iii. Police officers probable inability to satisfy any damage claim. 15

c. Injunctive actions are unlikely to be effective in controlling the police.

CRIMINAL REMEDIES
a. At the state level, most jurisdictions provide criminal sanctions for illegal police conduct including: false arrest and trespass. i. Subjective good faith is a complete defense to any criminal charge for trespass or breach of the peace. b. State and Federal Level: ineffective deterrent to police misconduct

CONCLUSION:
Exclusionary Rule operates to bar evidence unconstitutionally obtained. o Protect the integrity of the judicial process and deter illegal police conduct. EXCLUSION of Illegally Seized Evidence is NOT REQUIRED at: Grand Jury Habeus Corpus Sentencing Parole Revocation Proceeding Civil Forfeiture Proceeding Civil Deportation Proceeding

REASONING: Little Deterrent Effect

Exclusionary Rule
o Invalid Search Warrant STILL VALID if: Issued by a neutral magistrate and police reasonably believe it to be valid. Was obtained pursuant to a law subsequently found unconstitutional. Obtained in good faith reliance upon computer records mained by non-police personnel Used for purpose of impeaching the Defendant on issues raised during direct examination.

Fruit of the Poisonous Tree

o Extend application of the Exclusionary Rule even if evidence is legally obtained. 16

Government must show: Attenuation Doctrine Independent Source Doctrine Inevitable Discovery Doctrine.

DAMAGES
Bivens Action o Primary means of seeking damages for the misconduct of Federal Law Enforcement officials. (Depriving D of constitutional rights, claim under FTCA.) Individual Federal Officers may assert a good faith defense

1983 (Seeking Monetary Compensation for police misconduct) o Permits recovery against both individual officer and relevant government unit when the officer acts under color of state law to deprive the plaintiff of constitutional right. Municipalities and Local Government Units may be sued under 1983. May be found liable only if the act of their employee is authorized by official policy or custom.

States and State official may not. (immunity)

CHAPTER 3 : The Law of Arrest

INTRODUCTION
Remedy for Illegal Arrest = Simply the release from detention. o An illegal arrest does not void subsequent prosecution

HOWEVER o The legality of an arrest is often of crucial importance in determining the admissibility of evidence. Exclusionary Rule Fruit of the Poisonous Tree

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Definition of Arrest
I. An arrest must be based on Probable Cause a. An arrest is some type of restriction of an individuals liberty by the police. 1. Arrest: Trip to the Stationhouse and Prosection for Crime 2. Police Officer restrains ones freedom to walk away ii. Terry v Ohio: Were there reasonable suspicion to believe the suspect has committed an offense. (Stop and Frisk) 1. STOP and FRISK: only limited violation of individual privacy. a. While substantial interest in crime prevention and the police officers safety.

Detentions in the Stationhouse or Its Equivalent

II. Davis v Mississipi: 24 black youths were taken into custody for fingerprinting during a rape investigation a. No probable Cause b. Davis was interrogated twice overnight i. He was convicted and sentenced to death COURT HELD: Length of Detention at Stationhouse coupled with the Interrogation, was too intrusive to be undertaken w/o PC. III. Dunaway v New York: Stationhouse questioning of a suspect normally requires PC. IV. Dunway: Police officer took D into custody, investigating robber and felony/murder. a. Gave him Miranda Warnings b. Questioned w/o Probable Cause RULE: Custodial Interrogation requires probable cause V. Kaupp v Texas: Police took a 17yo kid at 3am to the stationhouse, told him they needed to talk. (Barefoot/Boxers). PO did not have probable cause or an arrest warrant RULE: Failure to struggle with a police officer is not a waiver of 4th amendment rights. VI. Florida v Royer: Non-consensual investigative detention outside the stationhouse can require probable cause. VII.Royer: Defendant was suspected of carrying narcotics. a. Taken to a storage closet (Desk w/ 2chairs) [Private Place] b. Retrieved Luggage w/o Consent

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c. Royer handed a key to open luggage, consented to prying the second luggage (marijuana) i. Storage Closet+15minutes constituted an arrest.

Non-consensual Detention at the BORDER is justifiable on reasonable suspicion.

DETENTION IN THE FIELD (STREET)

I. Questioning pursuant to a stop conducted on street require only Reasonable Suspicion. a. Royer: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. i. United States v Sharpe: theres not a precise durational limit on stops. 1. Sharpe: whether investigation was conducted in a diligent and reasonable manner.

DETENTIONS AT THE BORDER

I. Fourth Amendment requirements are relaxed at the border a. Governmentals interest in protecting the integrity of the countrys boundaries is paramount. 1. US v Montoya Hernandez: Had rsbl suspicion defendant ingested balloons containing drugs to smuggle. Defendant refused an x-ray examination. So was held for 16hours to wait naturally. a. Officers attempted to minimize delay by offering an x-ray.

DETENTIONS IN THE HOME

I. Beckwith v United States: Court found questioning by several IRS agents in the Defendants living room noncustodiual.

II. Rawlings v Kentucky: Policed executing an arrest warrant went in a home for the person named but failed to find the named person, but discovered evidence of drug possession as well as number of occupants. Persons were detained for 45minutes while a search warrant was obtained. a. RULING: Detention was an arrest, PO did not have PC with respect to detain individuals did not exist. III. Michigan v Summers: Individual may be detained during a search of his residence if the police arrive with a valid search warrant, even though PC to arrest him does not exist.

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a. REASONING: Detention in house is less stigmatizing; Search warrant indicates PC of criminal activity-thus implying people on those premises may be involved in criminal activity. b. RULE (SEARCH WARRANT): A person may be detained if the PO possess a valid search warrant based on PC to believe there is evidence of crime on the premises. i. RULE (ARREST WARRANT): May not detain individuals in the home who are not listed in warrant unless PC to arrest develops as they execute warrant. c. Muehler v Mena (Search Warrant): Police handcuffed woman, held her for 2-3 hours with 3other occupants. i. RULING: Search was for weapons due to gangs, so handcuffing was justified. Detention was justified because it was reasonable for it lasted no longer than the search, questioning was permissible due to taking place during the lawful detention. NO ARREST KEY FACTORS IN DETERMINING WHETHER ITS AN ARREST: i. TOTALITY OF THE CIRCUMSTANCES 1. Purpose (questioning v fingerprinting) 2. Manner (Police Detention v Grand Jury Subpoenas) 3. Location (Stationhouse Confrontation v Seizure in Field / Border) 4. Duration

PROBABLE CAUSE: Requirement for an Arrest

PROBABLE CAUSE: Between mere suspicion and reasonable doubt I. Beck v Ohio: Information sufficient to warrant a prudent man in believing that the suspected had committed an offense. a. Secondhand Sources (Informants / Victims and other eyewitnesses / Other Police)

INFORMANTS (Whether their information is accurate?)

a. Aguilar v Texas: Informant must state1. Sufficient underlying circumstances to demonstrate how the informant reached his conclusion a. Personally Observed the Criminal activity b. Or heard from other sources

2. Sufficient underlying circumstances establishing the reliability of the informant 20

a. Lying or Distorting the Truth II. Illinois v Gates: Credibility of informants information = Totality of the Circumstances III. Draper v United States (as to arrests): an informant provided reliable info in the past to PO about D selling drugs. That D was in Chicago return on train carrying a Tan Bag that had drugs. Informant described what he would be wearing and that hed be walking fast a. PO observed a man fitting description. Arrested him w/o a warrant. i. Searched and found drugs. 1. Ruling: Informants Tip, coupled with the corroborated info from the observing officers, sufficed probable cause for arrest.

FACTORS to consider in determining whether an informants information may form the basis for a probable cause determination: 1. The Informant gives a description of how he found out about the criminal activity; 2. The Informant gives a detailed description of that activity 3. There is evidence that the informant has been reliable in the past. 4. The Informant predicts activity on the part of the suspect which is corroborated by the police 5. The informant implicates himself in the criminal activity.

VICTIMS and EYEWITNESSES

I. RESPECTABLE CITIZEN- Aguilar Spinelli test is relaxed. a. Chambers v Maroney: usually no motive to fabricate information b. Maroney: Upheld an arrest for robbery of a gas station for which PC was established through a report of two teenagers in the vicinity. i. Blue Compact Station Wagon containing 4 men. (Green Sweater/Trench Coat) 1. Teenagers report was enough for PC

OTHER POLICE
I. Police Officer as Informant- Aguilar Spinelli test is further relaxed a. Whiteley v Warden: an arrest based on a radio bulletin from a sheriff in another jurisdiction advising that a warrant had been issued for the suspects arrest was held invalid. Affidavit failed to state any basis for the PC finding.

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i. RULE: Approval of officer making arrests based on reports from other officers whether or not information in the report was obtained firsthand, provided that it establishes PC. b. FIRST HAND KNOWLEDGE i. Arresting Officer is also the Informant- Did PC exist? 1. Post-Detention Information: Probable Cause must be established by evidence obtained independently of the arrest a. Sibron v New York: an incident search may not precede an arrest and serve as part of its justification. i. Evidence seized during an encounter which has yet reached the level of an arrest is allowed. 1. Terry v Ohio: A protective frisk is justifiend and a weapon is discovered, PC to arrest is est. b. FLIGHT: To avoid a confrontation with police i. IMPORTANT FACTOR in determining PC. c. FAILURE TO IDENTIFY ONESELF i. Hiibel v Nevada: Failure to identify may be grounds for an arrest. ii. Hiibel: PO responding to a report of an assault, had reasonable suspicion. 1. Requesting a name from an individual is a MINOR INTRUSION 2. No 5th Amendment Claim: Giving ones name presents no rsbl danger of incrimination d. PROXIMITY OF CRIMINAL SUSPECTS e. United States v Di Ri: Informant told of Di Ris friends criminal counterfeiting ration coupons. Investigators tried to justify an arrest of Di Re from the front passenger seat of a car, both of who were arrested for engaging in a transaction involving counterfeit ration coupons. i. RULING: Court held PO must have evidence that Di Re had knowledge they were counterfeit ration coupons. Di Res proximity to criminal activity did not establish probable cause. f. Johnson v United Staets: Police informed that persons of unknown identity were smoking opium in Hotel room. PO entered room and found opium. Announced all occupants were under arrest. 22

i. RULING: Officers had PC to believe a crime had been committed but lacked sufficient info to determine which occupants committed the crime- arrests and the search were therefore found illegal g. Ker v Califronia: PO had visual observations and informants tip that Ker had engaged in the purchase/sale of marijuana. PO entered Kers apt. Both Ker and Wife were present, found marijuana near kitchen sink, arrested them both. i. RULING: Upheld arrests. Marijuana in small space by kitchen sink+informants tip+observation=sufficient grounds for a rsbl belief Wife was committing offense. h. Ybarra v Illinois: Police had a valid search warrant authorizing search of a tavern believed to be a center for drugs transactions and search of the taverns bartender. PO searched patrons found in tavern, including Ybarra. i. RULING: Court held warrant did not give officers authority invade const. protestions possessed indiv. By taverns patrons. 1. PROBABLE CAUSE of person: Seizuere of person must be supported by prob able cause particularized with respect to that person. a. EXCEPTION: Belief that ones armed and dangerous. i. No suspicion found in Ybarra i. Maryland v Pringle: Unanimously upheld the arrest of all 3 persons in a car in which cocaine was found, after each denied ownership of cocaine. i. RULING: Occupants of a car are much more likely to be engaged in a common enterprise than patrons at a public tavern. ii. DISTINGUISHED from Di Re: Informant had singled out someone other than Di Re as the guilty party. In Pringle, there were no such informant. 2. INVESTIGATIVE PROFILES a. Reid v Georgia (1980): Whether a narcotics agent had rsbl grounds to stop 2 individuals because they met the following elements of an informal drug courier profile. i. Petitioner had arrived from Fort Lauderdale, PPO for Cocaine. 23

ii. Arrived early in the morning, when LawAct. Is low. iii. He/Companion tried to conceal they were traveling together. iv. Had no luggage other than shoulder bags. 1. RULING: Court held this was insufficient to give rise to reasonable suspicion b. Florida v Royer: Detained an individual in a small airport room. Court held actions constituted arrest, PO did not have PC. i. Carrying Luggage that seemed heavy ii. Was young and casually dressed iii. Appeared nervous and evasive iv. Paid for ticket with cash v. Did not write full name on luggage (Different Name) vi. Deporting from Miami (illicit drugs centers) heading to NY (major distribution center.) 1. RULING: Court held there were sufficient Grounds to stop the Defendant. (pg94?) c. United States v Sokolow: Seizure at an airport. PO said behavior had all the aspects of a drug courier. i. Paid $2100 for two plane tickets in a roll of $20s. ii. Traveled under name that did not match the name his phone # was listed. iii. Original Destination was Miami. (Source of Drugs) iv. Stayed in Miami for only 48hrs. v. Appeared Nervous vi. Checked none of his luggage 1. RULING: Sufficient for a stop, but not for an arrest. d. A seizure based on a profile should not automatically be rejected if two conditions are met: i. The profile is empirically proven to produce a success rate of 50% to justify an arrest, or 30% success rate to justify a Terry Stop. And ii. It is filed with the court prior as to stop as to prevent postmanipulation of numbers. 24

1. Profiles are unlikely to become the norm due to difficulty in arriving at a list of traints that lead to an empirically verifiably level of certainty sufficient to meet probable cause or reasonable suspicion. 3. MISTAKE a. It is IMMATERIAL that some or all of those facts later turn out to be false, so long as the Officer reasonably believed them to be true at the time of arrest. i. HOWEVER, if Arresting Officers mistake is unreasonable, the government may be liable under 1983. ii. Albright v Oliver: Wheter a PO violated due process clause for arresting Albright due to relying on uncorroborated information from an informant known to have provided unreliable info on 50 previous occasions. Subsequent evidence proved his innocence. 1. RULING: Court Dismissed Claim iii. Devenpeck v Alford: Police stopped Alfords car, initially on suspicion that he was impersonating an officer. PO realized Alford was taping their conversation, and arrested him for that conduct, in the belief that it violated privacy law. (No such offense existed) 1. RULING: Court found PO had PC to arrest him for the offense of impersonating an officer. 2. RULING: Officers motivation for arrest is immaterial as long as he knows of facts that are sufficient to establish PC form some crime. 4. ARREST WARRANT REQUIREMENT: a. Arrest warrants may only be issued upon a showing of PC and must identify with particularity the person to be seized. b. Common Law Rule, did arresting officer have PC to believe that: i. A person was or had commited a felony. or ii. A person was committing a misdemeanor involving a breach of the peace in the officers presence-arrest warrant is not required.

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1. Arrest warrant is only required when: arrest on a misdemeanor charge committed outside the officers presence or one that does not involve the breach of the peace. c. Carroll v United States: Reason for an arrest w/o a warrant for breach of the peace based on a reliable report of a felony is due to public safety and apprehension of criminal charged with offence at once. i. EXCEPTION: With respect to arrest in suspects home and arrests in the homes of third parties. 5. PUBLIC ARRESTS a. PUBLIC i. United States v Watson: Permitted a warrantless arrest in public even when there is time to obtain a warrant. 1. RULING: Most public arrests are made under exigent circumstances, a different decision in Watson would have affected only a small number of people. b. CURTILAGE of ONES HOME i. United States v Santana: PO arrived at house to find her standing in her front doorway. She saw police and retreated by shutting door. PO then entered and effected arrest w/o a warrant 1. RULING: Affirmed validity of arrest. While in Doorway, she had no expectation of privacy, and therefore here arrest was permissible under a Watson public-arrest analysis. When she retreated, she created exigent circumstances necessitating warrantless entry. 6. ARREST IN HOME a. WARRANTLESS HOME ARRESTS i. Payton v New York: Police officers need either a w warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home. ii. If there is sufficient evidence of a citizens participation in a felony to persuade a Judicial Officer that his arrest is justified, it is const. responsible to require him to open his doors to the officers of the law. 7. ARREST IN THIRD PARTY HOMES 26

a. Steagald v United States: Must obtain an Arrest Warrant and also a Search Warrant, based upon PC that the suspect is located in the Third Parties Home. i. RULING: Under Payton, an arrest warrant is sufficient authority to enter ones own home. ii. RULING: Under Watson, police can always arrest a suspect in public, thus can wait to apprehend him as he leaves the dwelling. iii. RULING: A warrant is not required to enter a house when exigent circumstances make obtaining one unfeasible. 8. HOT PURSUIT: THE EXCEPTION TO THE WARRANT REQ. a. PRIOR: i. Payton and Steagald: exigent circumstances justify a warrantless entry to effect an arrest. b. HOT PURSUIT: i. Warden v Hayden: Police were informed that Defendnat had robbed a taxi at gunpoint and had been followed to a particular house. Within 5 minutes, police had arrived at home, entered, and arrested the Defendant 1. RULING: Court upheld the arrest because the 4th AM does not require PO to delay in the course of an investigation if to do so would gravely endanger their lives or lives of others. ii. United States v Santana: With PC to arrest defendant, PO followed her inside her house after spotting her in the doorway, to require a warrant would have permitted her almost certain escape. iii. Minnesota v Olson: A warrantless intrusion may be justified by hot pursuit of a fleeing felon, or imminent destruction of evidence. iv. Welsh v Wisconsin: Police had PC to believe Defendant was driving while intoxicated based on witness account of driving erratic, crash car, and acted bizarre upon leaving immobilized car. Police found address from registration left in open car, police went to home, arrest him, took a blood sample, all without a warrant. 1. RULING: Arrest was Invalid. Court stated, When the offense is a noncriminal minor one, a warrantless home arrest cannot be upheld simply because 27

evidence of the BAC might dissipated while the police obtained a warrant. v. EXIGENCIES PERMITTING WARRANTLESS ENTRY 1. Imminent Danger to Others (Hayden) 2. Imminent Escape of the Suspect (Santana) 3. Evidence Would Otherwise be Destroyed (Olson) 4. The Gravity of the Offense (Wisconsin)

vi. Dorman v United States: Identified 7 factors that might permit warrantless entry: 1. Offense under investigation is grave 2. Suspect is reasonably believed to be armed 3. Police have a high degree of PC for the arrest 4. Especially strong reason to believe that the suspect will escape if not quickly apprehended 5. Entry may be made peaceably 6. Entry is during the day a. (6) AND (7) are an attempt to limit intrusiveness of a warrantless entry. i. PC and true exigency are present, then a warrantless entry occurring at night should not be prevented. 9. EXECUTING AN ARREST a. What time constraints does an arrest warrant place on an Officer? b. When are policed required to knock and announce their presence when they make a home arrest? c. When may police use deadly force to effect an arrest? d. What are the consequences of mistakenly arresting the wrong person? e. To what extent may the police search individuals whom they arrest? 10.METHOD OF ENTRY 28

a. REQUIRES NOTICE i. REASONING: 1. Needless property destruction will be avoided 2. Needless violence by surprised or fearful occupants will be prevented. 3. The dignity and privacy of the occupants will be respected. b. 18 USCA 3109: an officer may break open any outer/inner door or window of a houseto execute a search warrant, if after notice of his authority and purpose, he is refused admittance. i. Wilson v Arkansas: Court held that knock and announce rule is an element of the reasonableness inquiry under the Fourth Amendment. 1. EXCEPTION: Police need not knock and announce under exigent circumstances. a. THREAT OF PHYSICAL VIOLENCE b. POTENTIAL ESCAPE c. POTENTIAL OF EVIDENCE DESTRUCTION ii. Richards v Wisconsin: Must Knock and Announce unless they have reasonable suspicion that such action would be dangerous or that it would inhibit the effectiveness of the investigation. Ex: Destruction of Evidence. 1. United States v Ramirez (1998): Reasonable Suspicion of exigency justifies a no-knock entrance even when the entrance requires that the door be broken through. 2. United States v Banks (2003): Justified breaking down the door after a knock and announce fails to elicit a response. 3. Banks: Police executing a warrant to search for cocaine waited 15-20seconds after they knock/announce. a. RULING: Court held that damage necessary to effect an entry is always permissible if exigency exists. (15-20 Seconds does not seem unrealistic as to how long it takes to get rid of cocaine.) 29

4. Miller v United States: Arrived at Millers Apartment at 3:45am, without a warrant, for purpose of arresting Miller for narcotics offense. Miller asked who it was, Identified they were police, then opened door slight w/chain as to inquire to their purpose Prior to any response, began to close door when Police broke chain to enter/arrest Miller. a. RULING: Court never adequately announce their purpose prior to forcible entry, Closing of door was ambiguous as to whether he had understanding they were there to arrest him. c. UNLOCKED DOOR i. Sabbath v United States: Whether 3019 was triggered since the officers did not break open the door. 1. RULING: An unannounced intrusion into a dwelling, is no less unannounced intrusion whether officer breaks door, force open chain lock on partially open door, open a lock door with a passkey, or open a closed unlocked door. d. USE OF DEADLY FORCE i. ALI Model Code of Pre-Arraignment Procedure 1. 120.7: An officer may use such force as is reasonably necessary to effect the arrest, to enter premises to effect the arrest, or to prevent the escape from custody of an arrested person. a. DEADLY FORCE: is authorized when the arrest is for a felony, and the use of such force creates no substantial risk to innocent persons, and the officer reasonably believes that the felony involved the use or threat of deadly force or substantial risk that the arrestee will cause other deaths or serious bodily harm if deadly force is not employed. ii. Graham v Connor: All claims of excessive force-deadly or not, involving arrest or seizeure-are governed by the Fourth Amendment reasonableness requirement 1. Severity of the Crime 2. Whether suspect poses an immediate threat

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3. Whether he is actively resisting arrest or attempting evade arrest by flight. iii. Scott v Harris: High-Speed chase where PO car pushed Harriss bumper into an embankment and roll over. He was rendered quadriplegig post crash. 1. RULING: Court found PO used deadly force, found this force was reasonable., because Harris endangered the lives of innocent bystanders. a. 1983: PO is only liable if prior law had clearly established that the particular force was excessive iv. Brosseau v Haugen: PO shot a man in th beack as he tried to drive away. 1. RULING: Court granted immunity from suit, Shooting a fleeing driver to prevent harm to pedestrians and other drivers is reasonable. 2. RULING: Excessive force is determined objectively. 11.MISTAKE AS TO IDENTITY a. ARREST of wrong person is valid for purposes of determining the admissibility of any evidence thereby discovered if the mistake was reasonable. i. Hill v California: Police had PC to arrest hill, went to apt and knocked, Miller (who fit Hills description) answered and was then arrested. Miller then provided ID that he was not Hill. 1. RULING: Aliases and Fake ID is not uncommon. 2. RULING: Miller Denied firearms in apt, when loaded pistol was in plain-view. Sufficient Probability, not certainty, is the touchstone for reasonableness under Fourth Amendment. a. PO mistake was reasonable response to situation. 12.DUE PROCESS LIMITATIONS a. When attempts to arrest are not seizures they may be only regulated by Due Process Clause, if at all. i. Sacramento v Lewis: Civil Suit against a PO whose highspeed chase of a motorcycle ended him running over and killing the 16yo passenger on Motorcycle. 31

1. RULING: Police Chase is not a seizure within the meaning of the Fourth Amendment, the stop in this case was not a seizure because it did not involve governmental termination of freedom of movement through means intentionally applied. 2. RULING: Officer intended to stop the motorcycle, but not by running over its riders, therefore Fourth Amendment was not applicable. 3. EXCEPTION: When Police action Shocks the Conscience. ii. CONCLUSION 1. An illegal arrest or detention standing alone has little impact on subsequent prosecution. a. REMEDY FOR CITIZEN: 1983 2. Arrest is some type of restriction of an individuals liberty by Police. a. Must be based on Probable Cause b. Tery-Stop i. Reasonable Suspicion of Criminal Intent (Less than PC) c. FACTORS in determining whether a Seizure is an Arrest i. Purpose ii. Manner iii. Location iv. Duration 3. Probable Cause is an objective standard=RSBL grounds to believe suspects has committed an offense a. Informant gives factual basis for PC i. ULTIMATE TEST: Totality of the Circumstances ii. Aguilar Test 1. Whether sufficient facts are available to inform magistrate of how informant reached his conclusions 2. Whether sufficient indicia of the informants reliability exists b. Police Officers own Observations 32

i. Only indica of criminality independent of the arrest (but including patdown based on rsbl suspicion) bay be relied upon to develop PC. c. Failure to Identify Oneself i. Combined with reasonable suspicion of crime, may justify an arrest. d. Reasonable Mistake i. As to the fact underlying PC does not render the arrest invalid, nor does arrest for a non-existent crime as long as an actual crime has been committed 4. Arrest warrant in PUBLIC a. Is not required to effect an arrest when the PO has probable cause to believe that a felony has been committed or that a misdemeanor is being committed in his presence i. HOWEVER: A warrant is required to make an arrest in a private dwelling 1. EXCEPTION: Unless exigent circumstances are present. b. Third Parties i. Police must obtain a search warrant before they may enter the house of a third party to effect a non-exigent arrest. 5. Police must knock and announce their purpose before entering to make an arrest. a. EXCEPTIONS i. Suspect might escape ii. Harm Someone iii. Destroy Evidence 6. Deadly Force a. Permitted to used deadly force only if there PC to believe it is necessary to prevent both: i. Escape ii. And use of deadly force by the suspect. b. DUE PROCESS CLAUSE 33

i. Prohibits actions short of arrest that shock the conscience II. CHAPTER 4: Analyzing when SEARCHES Occur and When they Reasonable a. INTRODUCTION: i. When is the Fourth Amendment implicated by the evidence-gathering activity in question? ii. ALL elements must be present for Fourth Amendment to be implicated: 1. Whether the intrusion is the product of governmental action 2. Whether it breaches societys reasonable expectations of privacy 3. Whether it breaches the legitimate expectations of privacy b. DEFINITION OF GOVERNMENTAL CONDUCT i. PRIVATE CITIZEN 1. When a private individual illegally acquires evidence which the government later seeks to use in criminal prosecution, no 4th amendment violation upon which to support a motion to exclude. 2. Burdeau v McDowell: Private individual illegally entered and searched McDowells business office and seized papers. These papers were later turned over to Attorney General. a. RULING: Fourth Amendment is meant to be a restraint upon the activities of sovereign authority, not private individuals. 3. Coolidge v New Hampshire: If a private citizen on his own intitiative turns over certain articles to the police for a criminal investigation, evidence is admissible. 4. Whether Governmental Conduct Occurred: a. Who is a Government Official? b. When is a private citizen, not acting wholly on his own intiative? c. Once it is established an action is purely private, what subsequent government action does the private search authorize? d. When, if ever, action by a foreign government implicate the 4th amendment?

ii. GOVERNMENT OFFICIALS 1. Police employed by Government Entity are covered 2. Regulatory officials 34

a. Camara v Municipal Court: Searches by regulatory officials conducting safety and health inspections are subject to 4th Am requirements. 3. Government Agencies a. For internal, work-related investigations. 4. Public School Teachers a. New Jersey v TLO: Teachers act in furtherance of publicly mandated educational and disciplinary policies, therefore they are acting as government officials-not as parents. iii. GOVERNMENT OFFICIAL? NOT EMPLOYED BY GOV: 1. Not Employed or Influenced in any Direct Manner. Fourth Amendment does not apply: a. Store Detectives b. Security Guards c. Insurance Inspectors i. MINORITY: Primary Purpose of private personnel is to supplant the public police, 4th should apply. iv. GOVERNMENT AGENTS 1. TEST: Whether the private citizen in light of all the circumstances of the case, must be regarded as having acted as an instrument or agent of the state. 2. SUFFICIENT STATE ACTION: a. Officers actively join in the private search b. Instruct the private individual to conduct it c. Alcohol/Drug Test carried out by private employers which are mandated/strongly encouraged by Gov. Reg. 3. OFFICIAL MERELY PROVIDES INFORMATION a. When a government official does not direct the private action, but merely provides information that leads to it, 4th does not apply. b. People v Boettner: Upheld search by private university officials based on info supplied by the police. i. REASONING: The private search had been conducted without knowledge of the police, who had been proceeding with their own investigation. 35

c. United States v Lamar: PO notified an airline employee that he was interested in a certain unclaimed bag, believing it to belong to a person suspected of various narcotics. Employee searched bag for identification and found what they both believed to be heroin. i. RULING: 4th Am not implicated because the officer had neither requested nor physically participated in the search, and the employee was acting in the usual and ordinary course of his customary duties when he searched the bag for id/address purposes. ii. PROBLEM: The Result of Lamar encourages police to use private parties as a means of evading 4th Am. 4. WHAT A PRIVATE SEARCH AUTHORIZES a. When Government later seeks to benefit from Private Search. i. Walter v United States: Invalidated a conviction which was based on the warrantless viewing of obscene films by the FBI. Already opened by private party prior. 1. REASONING: Since private parties had not actually viewed the films, the FBI was constitutionally prohibited from viewing w/o a warrant. a. No Prior Private Person Knowledge. ii. United States v Jacobsen: FedEx employees opened a pkg which had been damaged by a forklift and found a Tube which contained white bags of powder. They then notified DEA. 1. RULING: Allowed warrantless search by a DEA official, enabled the agent to learn nothing that had not previously been learned during the private search a. Private Person Knowledge Prior iii. SUGGESTED by Justice White: 1. Permit warrantless searches only of those items the police find in plain view as a result of the private partys search. 5. SEARCHES IN FOREIGN COUNTRIES a. Search of an American Citizen conducted in a foreign country by foreign police does not implicate the 4th Amendment, even if provided by American Authorities. 36

b. SUBSTANTIAL CONNECTION? i. United States v Verdugo-Urquidez: DEA Agents, assisted by Mexican authorities, conducted warrantless searches of two Mexican residences of a Mexican citizen who had been turned over the US two days earlier. 1. RULING: Defendants sole connection with the US was his Detention 2. RULE: Courts have denied Fourth Amendment Rights to Aliens inside/outside our country. 6. DEFINITION OF SEARCH and SEIZURE SEARCH: a. A search occurred solely when there was a physical intrusion into one of the constitutionally protected areas set out in the 4th Am: persons/house/paper/effects. b. The 4th Amendment protects people, not places. i. Katz v United States: Words spoken in a public telephone booth overheard on an electronic eavesdropping device were constitutionally protected. 1. REASONING: A person who occupies a phone booth shuts the door behind him, pays, one is entitled to assume that the words he utters will not be broadcast to the world. c. EXPECTATION of PRIVACY: Purely Objective. i. Public Exposure Doctrine ii. Reasonable Expectation of Privacy Doctrine. 7. UNDERCOVER and INSTITUTIONAL AGENTS a. Gouled v United States: Court found unreasonable an undercover agents search of the Defendants desk, although the defendant had invited the agent into his office, he had not consented to him going through his papers. i. DISTINGUISHED 1. Lewis v US: Fourth Am. Did not apply to an undercover agents entry into a home for the purpose of completing a drug transaction, when the owner had invited him there over the phone.

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2. Hoffa v United States: 4th Amendment does not prevent using agents to eavesdrop, so long as the Defendant is aware they are listening. b. Whether an undercover agent can wear an eavesdropping device? i. On Lee v US: Court held that because the defendant invited the agent who was bugged into his laundry and voluntarily conversed with him, no search had occurred. Device merely improved the accuracy of governments evidence.

c. RE-AFFIRMED Katz i. Maryland v Macon: Undercover agents entry of an adult bookstore during regular hour and examination of materials offered for sale did not constitute a search. d. USE OF EVERY DAY INSTITUTIONS AS UNDERCOVER AGENTS Voluntary of Assumption of the Risk i. BANKS 1. United States v Miller: Court held a subpoena of records containing financial information voluntarily surrendered to a bank is not a search for 4th Am. Purposes. ii. PHONE COMPANY 1. Smith v Maryland: Person does not have a reasonable expectation of privacy in the identity of phone numbers he calls, because he knows that these numbers are recorded as a matter of routine by the phone company. iii. Congress now requires Government to obtain a subpoena or court order before Bank and Phone Records may be obtained. 8. PHYSICAL CHARACTERISTICS (Physical Attributes) a. DOES NOT implicate 4th Amendment. b. Voice i. United States v Dionisio: Subpoened to give voice exemplars for identification purpose. Fourth Amendment did not apply. 38

1. REASONING: Physical characteristics of a persons voice, tone, manner, as opposed to a specific conversation, is constantly exposed to the public c. Handwriting i. United States v Mara: Any physical characteristic that is discernable by mere observation coulbe included amont those things a person holds out to the public 9. OPEN FIELDS/CURTILAGE a. Homes and Private Offices are protected by the Fourth Am i. AREAS ADJACENT may not. 1. Oliver: (Open Fields Doctrine) Entry on to Private Property that was fenced in and marked by No Trespassing Signs.

2. Oliver v US: Landowners do not possess a legitimate expectation of privacy in fields which are far removed from the landowners home and curtilage, even if efforts have been made to maintain some degree of isolation. a. These lands usually are accessible to the public and the police in ways that a Home, office, commercial structure would not be. b. AERIAL SURVEILLANCE i. Dow Chemical Co. v US: Aerial Surveillance of property did not violate legitimate expectations of privacy. ii. Dow Chemical: EPA hired an Aerial Photographer to photograph the defendants plant from the air after he had refuse on-site inspection. 1. REASONING: Did not involve physical intrusion, did not reveal identifiable human faces, secret documents or any interior that implicated privacy interests. iii. California v Ciraolo: Police received anonymous phone tip the defendant had marijuana in backyard. A plane took a photograph from 1000ft above backyard. 1. RULING: 4th Am does not apply. Police observation took place in Public navigable airspace, anyone 39

could have spotted the marijuana with the naked eye. c. FACTORS i. Determining when an area is within the curtilage of the Home 1. Proximity of the Area claimed to be curtilage of the home. 2. Whether in an enclosure surrounding the home. 3. The Nature of the use 4. Steps taken by the Resident to protect the area from observation by people passing by. ii. US v Dunne: Police entered the Defendants property without a warrant, climbed several fences, peered inside a barn, discovering evidence of drugs, subsequently obtained a warrant to enter barn and seize drugs and chemicals. RULING: Initial viewing was valid 1. Barn was not on the D curtilage 2. The Barn was 60yd from Home and 50yd outside the fence enclosing the home. 3. Used to produce drugs rather than the house intimate activities of the home 4. Surrounded only by low fences designed to corral livestock rather than prevent persons from viewing the barn. 10.CARS AND CONTAINERS a. ABANDONED i. No Fourth Amendment Right Attaches b. GARBAGE i. California v Greenwood: No legitimate expectation of privacy exists in garbage left in opque bags outside the curtilage of the hojme c. INTERIOR OF CARS i. Usually require constitutional mandates d. CONTAINER 40

i. United States v Chadwick: Warrant is necessary to search a locked footlocker in public because of personal effects. e. SUITCASES i. Arkansas v Sanders: Only non-abandoned containers which reveal the nature of their contents such as a transparent vial or a gun case are not protected. 1. Transparent or Obvious=Not Protected f. GRAB-CAIN DOCTRINE i. Bond v US: Border Patrol Agent conductin immigration check squeezed defendants Bag and noticed a bricklike object. 1. RULING: Court held that meth should be excluded, People do not expect there Luggage to be handled in a exploratory manner. ii. Lo-Ji Sales v New York: Local officials seized books and filves off the shelves without paying for them and examined them despite not being opened yet. Constituted a Search and Seizure. 1. REASONING: Police were not acting like the ordinary. Not a search/seizure if undercover agent had purchased the material as a customer would.

11.CONTROLLED DELIVERY a. Does not Implicate the Fourth Amendment i. A container which is lawfully intercepted and searched, found to contain contraband, repackaged, and then delivered to the addressee. ii. Illinois v Andreas: Routine inspection at airport, customs agent open a metal container which house a wooden table, inside of which contained drugs. Container was resealed and delivered to Defendants apt. Within 45minutes he came out of the apt with container and was arrested. 1. RULING: No search occurs when the container is reopened after the controlled delivery. 12.ENHANCEMENT DEVICES a. FLASHLIGHTS b. DOGS SNIFFS 41

c. SATELLITE PHOTOGRAPHY i. FACTORS (1)Nature of the Place Surveilled ii. US v Katz: Federal agents obtained permission to place a beeper in a 5 gallon container of chloroform, which was subsequently picked up by D. Agents lost sight of D, but were able to track D to a cabin due to the beeper. 1. RULING: Upheld, 4th Amendment did not attach. a. REASONING: Person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. iii. US v Karo: Beeper was used not only to track a container to a particular house, but also to track its departure from that house and its arrival at a public warehouse. 1. RULING: Upheld, even with use of Beeper to discover information that would have been difficult to obtain from a public vantage point d. MOVEMENT WITHIN HOUSE i. Fourth Amendment Implicated 1. When a beeper is used to detect the movement of something once it is inside a house. ii. Kyllo v US: Police used a device that registered relative heat of Kyllos home, in an attempt to discover highintensity lamps used to grow marijuana. Based on results of scan, they obtained a warrant to search house 1. RULING: Where technology is not in GENERAL PUBLIC USE, the Fourth Amendment is implicated. a. REASONING: Thermal Imaging Devices detect I ways that the human senses could never duplicate. 2. THE NATURE OF THE ACITIVITY SURVEILLED iii. US v Jacobsen: Testing a substance strongly believed to be cocaine is not a search iv. US v Place: having a dog sniff luggage which alerts police only the presence of contraband does not implicate the 4th amendment 42

What will constitute an arrest? 1. Any action that makes it impossible for an individual to leave a. Ex: Handcuffs, Full Body Search, Forced Movement ii. ULTIMATE TEST: 1. Totality of the Circumstances a. Failure to Identify oneself b. Reasonable suspicion of crime i. A reasonable mistake as to the facts underlyint the PC does not render the arrest invalid. d. PUBLIC: An arrest warrant is not required to effect an arrest in Public e. PRIVATE: Arrest warrant is required to make an arrest in a private dwelling, unless exigent circumstances are present. i. Knock and Announce unless: 1. Reasonable suspicion that the suspect might escape, harm someone or destroy evidence. f. FACTORS IN DETERMINING whether there has been a Seizure: i. Purpose ii. Manner iii. Location iv. Duration of the Detention VIII. SEIZURE a. Terry v Ohio: reasonable suspicion of criminal intent

Chanley Added Section Ch.4 pg134 - 161 4.03 The Definition of Search and Seizure (f) Enhancement Devices (3) The care Taken to Ensure privacy o Courts look at the extent to which steps have been taken to enhance privacy of that place. Ciraolo case the fact that the Ds fence was only 10feet high and thus would not have kept observers on a truck or double-decker bus from seeing backyard helped justify aerial surveillance, even though on the residential cartilage
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(4)

The lawfulness of the vantage point o Is a street, sidewalk, an apartment hallway or public airspace; private property can also be a lawful vantage point p. 135* The availability and sophistication of the technology o Dow Chemical case: using highly sophisticated surveillance equipmt not generally available to the public such as satellite technology might be constitutionally prescribed absent warrant o Pg. 136* The extent to which technology enhance the natural senses o Minimal enhancement of naked eye observation is not a search o Kyllo: if activities viewed through binoculars or nightscope could also have been seen w/ naket eye from public vantage point but were not so viewed to avoid detection the 4thAmend is not implicated

(5)

(6)

(g) Government Monitored Institutions - Privacy interest are minimal b/c a person should know his person effects will be exposed to gov agents; ex. Limited exp of privacy at international border; licensed gun dealer (regulated business); prisoners cell; (h) An Alternative Definition - Question of when police conducted a search for purposes of 4th A is important since it determines whether the reasonableness and warrant requirements of that constitutional provision need be met - The alternative definition in book is a sliding scale approach pg. 139 4.04 Standing Not every individual who is subjected to a search as defined above has standing to contest the action. A right to exclude evidence that is illegally obtained doesnt automatically vest in the person agst. Whom it is used, even when the person can prove that the purpose of the search was to gather evidence agst him; under current law that right may be asserted only by those individuals who privacy is directly violated by the gov action. (a) Property-based Standing - Originally, the standard was if one had a possessory interest in either the thing seized or the place searched was one able to assert a 4thA claim pg. 140 (b) The Jones Criteria - Jones v. US: Jones was denied standing in lower ct b/c he could claim no possessory interst in the place searched. Ct changed standing law and to replace the property based rules, the Ct created two independent tests o Ds charged w/ possessory offenses have automatic standing. o Anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress when its fruits are proposed to be used agst him (c) Legitimate Expectations of Privacy Analysis - Standing is a legitimate expectation of the place searched - Katz v. US: lead to elimination of both of Jones standing criteria. Ct used expectation of privacy analysis

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- Rakas v. Ill: Ct explicitly recognized the connection b/w search and standing analysis as Ct held

that standing should depend on whether police action sought to be challenged is a search violation of legitimate expectations of privacy) w/ respect to the person challenging the intrusion o Ct held that Ds didnt have standing to contest search of a car merely b/c they were passengers in it at the time; - Rawlings v. Kentucky: even if D claimed possessory interest in the items seized they would not have standing to contest search by virtue of that fact alone - US v. Salvucci: abolished Jones automatic standing (d) Current Standing Rules - w/ the endorsement in Rakas of the expectation of privacy approach to standing, the Ct has moved toward a totality of the circumstances analysis (1) The right to exclude others o If have this right, then have standing to contest search o If you are not home you can contest conversations in your home o Right to exclude can also be asserted by non-owners can exclude others from phone booth and when house-sitting (2) Continuing access plus possessory interest o When the above dont apply, continuing access to the property (in US v. Jeffers it was aunts apartment) and claiming possessory interest in the seized contraband was suff to gain standing o U.S. v. Padilla: Ct said D had to have property interest protected by 4thAm that was interfered w/ by the stop of the car or a reas.expectation of privacy that was invaded by the search. (3) Legitimate presence plus possessory interest o Minn v. Olson: D had standing to contest that police didnt have warrant when arrested him there; overnight guest seeks shelter b/c it provides him w/ privacy a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside o Ppl who are in a residence for only a few house, on business, and who have little or no previous relationship w/ the owner or occupants of premises do not have standing to contest search of premises (as opposed to personal belongings)-Minn v. Carter pg 147 (4) Bailment o Rawlings case, his bailment of his drugs to Cox had been too precipitous to create and expectation of privacy, the bailment issue implies that were one to make valid bailment a legit expectation of privacy might be established o But US v. Miller person who voluntarily surrenders ino to a bank lacks standing to contest a subpoena for records containing that info (5) Subjective expectations of privacy o This is factor that shouldnt play a role in the standing inquiry but Rawlings Ct considered the Ds own perception of his privacy interest 4.05 Detmining Whether a Search or Seizure is Reasonable If it is determined that a given search or seizure doesnt implicate the 4th A, then the evidence so procured is admissible in subsequent prosecution If 4thA right does exists, the next step is to determine whether the governments conduce was reasonable (a) The Warrant Requirement
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- Caselaw can be organized around 4 types of exceptions to the warrant requirement; 1. Exceptions based on a perception that exigent circumstances make obtaining a warrant impossible or impractical (hot pursuit) 2. Exceptions resting on a finding that the police action does not impinge upon a substantial privacy interest(heavily regulated industry exception) 3. Situations involving special needs of law enforcement (a phrase coined by SCOTUS) where warrants might frustrate legitimate purposes of the gov other than crime control (public school search exception 13.08); and 4. Situations where warrants are considered unnecessary b/c other devices already curb police discretion (the inventory search exception 13.07) (b) The PC Requirement - If search requires warrant, it must be based on PC. If search doesnt require SW these factors must be considered: 1. Intrusiveness of search 2. Nature of the harm being investigated 3. Difficulty of detecting the harm if PC is required 4. Extent to which a pc requirement would disrupt smooth gov functioning (ex. Of railway workers pg. 152) (c) Adequacy of the warrant - To be valid a warrant must: o Be issued by a neutral and detached decisionmaker o Be based on PC that items sought are in place to be searched o Describe w/ particularity the place to be searched and the items to be seized and o Be executed w/in a reas period of time (d) Exceptions to the Warrant and PC Requirements - If warrant is obtained but invalid, or if not warrant was ever obtained, evidence seized by gov officials is still admissible if discovered: 1. Incident to a lawful arrest (ch.6) 2. In a movable vehicle in circumstances giving rise to the so called automobile exception (AE) (ch.7 PC if car contains contraband or evid of crime) 3. While police are in hot pursuit of a suspected felon (ch8 rob a bank) 4. In an evanescent or endangering state (ch.9) 5. In plain view from a lawful vantage point (ch.10) 6. During a frisk after a valid stop (ch.11) 7. In the course of a search authorized by a voluntary consent (ch.12 8. In the course of inspetionis or searches conducted for certain regulatory purposes (ch.13 tyson chicken) (e) Burdens and Standards of Proof - Whether a search occurred, the D has standing, a warrant was valid or one of the excpetions applies is usually decided at a suppression hearing prior to trial. - Burden can vary b/w defense and prosecution depending on the question involved - Voluntariness of Consent Gov bears burned of proving voluntary - Burden of proving a Gov action is a search D (d has best access to info concerning expectations of privacy - Standing: is similar to search issue and is on the D - Whether PC existed or a search was otherwise reasonable the Gov 4.06 Conclusion
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pg. 154 READ IT! Plus Chart!

Ch. 5: The Search Warrant

5.01 Introduction

4th Amendment: Warrant=probable cause, supported by Oath or affirmation, and particularly. Sct says 4th amend also requires neutral detached decision-maker plus some other additional requirements

5.02 The Neutral and Detached Decision Maker Coolidge v. NH: AG was not neutral and detached since he was also the chief prosecutor Lo-Ji Sales, Inc. v. NY: a judicial officer, even if initially independent of the law enforcement process can lose that independence through his own actions; also, pc cannot be delegated to officers Warrants may be issued by judicial branch officials who are not judges, in some circumstances p.161

(INSERT MATTS section pg. 160-193)??????

Ch. 6: Search Incident to a Lawful Arrest

6.01 IntroductionPg.195 Chimel v. California a search incident to arrest is permitted to remove any weapons that the arrestee might seek to use in order to resist arrest or effet his escape and to seize any evidence on the arrestees person in order to prevent concealment or destruction 6.02 Arrests that Justify a Search Warrantless search is justified only if the arrest is lawful (based on PC and meets other constitutional requirements. If the arrest is unlawful for some other, non-constitutional reason, a SI may be valid as a 4thA matter. US v. Robinson & Gustafson v. Florida - all lawful custodial arrests justify a full search of the person w/out a warrant. Gustafson holding is that the arrest result in the person being taken into custody (Knowles v. Iowa p. 196: Ct affirmed that noncustodial arrest cannot form the basis for a search incident) Atwater v. City of Lago Vista: Ct rejected argument that 4th Amend. Permits custodial arrest only for offenses that might carry jail time or when there is need for detention. As long as police have probable cause even arrest for minor offense is ok (doesnt violate 4thA). 6.03 The Timing of the Search
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A fundamental tenet of search incident doctrine is that probable cause to make arrest must precede the warrantless search. Must be contemporaneous:

6.04 The Scope of a Search Incident (a) The Armspan Rule - Development of the Rule: US v. Rabinowitz: a search incident of one room business was reasonable based on the totality of the circumstances as it was in possession and control of person arrested. Chimel v. CA: overturned Rabinowitz creating the Armspan Rule (replacing the case by case reasonableness analysis endorsed in Rabinowitz) o RULE: arresting officer may search the arrestees person to discover and remove weapons and seize evidence but beyond this a search is limited to the area within the immediate control of the arrestee the area he might have obtained a weapon or something that couldve been used agst. Him
(b) Confederates and Destructible Evidence (1) Searches for Confederates i. Maryland v. Buie: police may incident to home arrest (w/out having PC or RS) look in

areas immediately adjoining the place of arrest for other persons who might attack the police. Also, if at any moment up to the time the arrest is complete and police depart, the police have RS that other areas of premises harbor ppl who pos e danger they may do a Protective Sweep ii. Protective Sweep limited to a cursory visual inspection of those places in which a person might be hiding. PS requires an articulable suspicion that confederates are on the premises
(2) Searches for Evidence i. Vale v. Louisiana: unclear in its result. But lower courts have routinely permitted

warrantless searches of homes for evidence after an arrest, some requiring PC, other only a RS that evidence is on premises and will have disappeared by the time a warrant is obtained.
(3) An Alternative: Securing The Premises

i. Following the logic of Segura v. US, the Court in Ill v. McArthur held that when police have PC to believe evidence is in the home, they may not only secure the residence pending arrival of the warrant, but detain its occupants when they believe the occupants may otherwise destroy the evidence. As in Segura, the court required that the warrant be obtained in a diligent manner and indicated that such detention might not be permissible if the crime involved were extremely minor
(c) Search Incident Doctrine and Cars New York v. Belton: search of car and the contents of containers inside is permissible even if the

cars occupants have been removed from the car, so long as the occupants have been lawfully arrested and the search is contemporaneous w/ the arrest. After lawful custodial arrest, contemporaneously police can perform warrantless search of any of cars interior as well as packages, clothing and other containers. Only trunk and other areas inaccessible to passengers (behind the dashboard) cannot be searched during search incident Supplement:Belton is overruled by Gant. 28 years later: AZ v. Gant- held searches of cars incident to arrest may occur only when 1)the interior of the car is actually accessible to car occupants who
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might thereby obtain a weapon or destroy evidence, or 2)it is reasonable to believe the vehicle contains evidence of the offense of arrest. 6.05 Conclusion Read it!

Chapter 7: The Automobile Exception

7.01 Introduction The automobile exception to the warrant requirement originated in Carroll v. U.S. (1925). Case laid out that a warrantless search of automobile is permitted when: 1. There is PC to believe the vehicle contains evidenc of crime; and 2. The police did not have time to obtain a search warrant prior to the search. 7.02 The Rationale for the Exception Two Justifications for the Auto.Exception (includes warrantless searches of cars, boats, other vehicles when police have PC): 1. The inherent mobility of such conveyances 2. The public character of movable vehicles. 7.03 Elements of the Exception 3 Elements must be met before the AE applies: 1. The area searched must be associated w/ a lessened expectation of privacy 2. Police must have PC to search the vehicle 3. Exigent circumstances must exist, although it appears that this last element of the exception as now defined adds virtually nothing beyond a showing that the vehicle is mobile (a) Vehicles Covered California v. Carney: Ct stated that warrantless search of mobile home parked in parking lot was ok as the vehicle was more like car than house; several factors were considered (location; readily mobile; licensed; connected to utilites; access to road). (b) Probable Cause While PC to arrest and PC to search often co-exist, they are not congruent. There is one situation where warrantless, exigent search of a car does not require PC to believe evid of crime is in car: NY v. Class o When focus of search is the VIN the car may be entered even when police lack PC to believe car is stolen and have no other reason for observing the VIN, so long as a valid stop for a traffic violation or some other offense has taken place. Ct cited lessened expectation of privacy associate w/ the VIN pg. 215 (c) Exigency (1) Measuring exigency backward Many car searches are conducted in exigent situations. Coolidge v. New Hampshire: Cain says this is no longer the law; it held search on private property two weeks after PC to search was invalidpg. 217
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Pennsylvania v. Labron: ct reduced the scope of the exigency prong of the AE rejecting exigency prior to a warrantless car search. Holding follows the suggestion in Carney that the current rationale for the AE is the lesser privacy interest in a car not the likelihood it will leave the jx; Florida v. White: ct upheld warrantless seizure of Whiles car from his employer parking lot even tho search too place two months after police developed PC ct justified by citing mobility of the car and public place of car

(2) Measuring exigency forward Chambers v. Maroney: Ct held that if the elements of the AE are met at the time the car is discovered) if there is PC and the car is readily mobile) police may forego an immediate search and instead bring the car in from the field and conduct warrantless search at the stationhouse. One limitation on polices ability to conduct a car search following to its seizure: US v. Johns o Ct held search under Chambers may not be postponed for so long that it adversely affects a privacy or possessory interest. A long hiatus b/w original stop and later search is often reasonable. In Johns, 3 days was permissible b/c arrested owners did not ask for it 7.04 Scope of the Search Development of the Rule: - Arkansas v. Sanders (1979):warrantless search of suitcase w/ PC no permissible merely b/c police wait until it is in a car before they search it; police must secure luggage and get warrant - Robbins v. CA: even containers discovered for first time during car search must be seized pending warrant; no warrantless search at time of discovery; ct said only containers that reveal nature of contents can be searched w/out warrant - US v. Ross: overturned Robbins and backed away from Sanders. Once the 3 requirements of AE are met, police have authority to conduct warrantless search that is a s thorough as a magistrate could authorize in a warrant. Police cant conduct search of suitcase in car when they are looking for illegal aliens; - CA v. Acevedo: Overruled Sanders. Police may now conduct warrantless search of any container they have PC to search once it is placed in a car, at least one that is readily mobile. o Police may not search the rest of the car unless they have PC to search that area as well (this limitation doesnt place much restriction however as in Wyoming v. Houghton Ct permitted search of containers possessed by PASSENGERS in the car even if suspicion that such containers contain evidence is based solely on the car drivers involvement in crime. 7.05 Conclusion p. 222 The basic tenets of the AE can be summarized as follows: (1) The area searched must be a vehicle associated w/ a lessened expectation of privacy; that is, a vehicle whose setting objectively indicates that it is being used for transportation (2) There must be PC to believe the vehicle contains evidence of crime (3) The vehicle must be readily mobile, although exigent circumstances that hinder or prevent obtaining a warrant need not be present unless the vehicle is on private property (4) If these elements are met, any area of the car or any container therein for which PC exists may be searched immediately, or at some later time, provided any delay which occurs does not unreasonably interfere w/ privacy or possessory interests.

Ch. 8 Hot Pursuit

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8.01 Introduction The Hot Pursuit Exception was first recognized in Warden v. Hayden 8.02 When Hot Pursuit Justifies Entry Not every HP of suspect permits warrantless entry. There are at least 4 limitations on HP Doctrine (HPD) (a) Probable Cause as to Crime and Location - Warrantless entry may not occur under HPD unless police have PC that person chasing has committed crime and is on the premises entered (b) Cause as to Exigency - In addition to PC, police should also have reason to believe suspect will escape or some further harm will occur unless the warrantless entry occurs immediately warrantless entry is not automatic though - Emergency Conditions : US v. George- warrant should still be obtained unless the arresting officers reasonably belive (1) suspects either know or will learn that they are in immediate danger of apprehension; (2) evidence is being currently removed or destroyed and it is impractical to advert the situation w/out immediately arresting the suspects or seizing evidence; OR (3) a suspect is currently endangering the lives of themselves or others. (c) Lawful Starting Point - Police must start pursuit from legitimate place. Police may not initiate a search on private property unless they are already lawfully there - US v. Santana police may pursue from a public vantage point a suspect they first see on private property. Santana was at doorway of the house and retreated into the vestibule where she was arrested and searched. This was a public place for purposes of 4thA. Since not in area where she had any expectation of privacy (d) Type of Crime - Requirement for HPD: Person chased must be suspected of a law violation that is serious 8.03 The Definition of Hot Pursuit (a) Supreme Court Cases - Mincey v. Arizona: police removed D and victim and returned to spend 4 days searching but was not permitted b/c no emergency existed at time of search began. When police can enter to search at later time a warrant is required - SCOTUS believes the justification for a warrantless entry must be exigency (b) Lower Court Cases - Further clarification comes from lower courts. Many have sanctioned warrantless entries after pursuits of somewhat longer duration than in Hayden and Santana. If the pursuit is immediate and continuous (Welsh language), the fact that it is prolonged is not nec fatal. - When a case is neither immediate or continuous: o warm pursuit doctrine in Dorman v. US police made warrantless entry 4 hours after crime. Ct upheld entry of residence b/c it found that the police had an urgent need to forgo warrant.
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(c) Scope of the Search - In Hayden: scope of search must be as broad as may reasonably be nec to prevent the dangers that the suspect at large in the house may resist or escape. Police may search any location which might hide the suspect or suspected accomplices as well as any area which might contain weapons. Any evidence discovered in plain view while looking fro the suspect or weapons is admissible as well. - Two Limitations to HP search: 1. Search must be prior to or immediately contemporaneous with the arrest of the suspect. 2. Officers may search only where the suspect or weapons might reasonably be found. 8.05 Conclusion The HP doctrine permits warrantless entries of premises when suspects have fled there. The principal components of the doctrine are as follows: (1) Before entering the premises, the police must have pc to believe a. The person they are pursuing has committed a crime which is not minor; and b. The person is on the premises they wish to enter. In addition, they should at least have reasons to believe: c. The suspect will escape or harm someone, or evidence will be destroyed or lost, unless a warrantless entry is made (exigencies). The observations informing these beliefs must be lawfully acquired (they must come from third parties or police observation from a lawful vantage point) (2) The pursuit must be immediate and continuous from the time of the crime or the time the suspect is spotted outside the premises and should not be extremely prolonged; in other words, if the police have a reasonable amount of time to procure a warrant before they arrive at the premises they should do so

Chapter 9: Evanescent Evidence and Endangered Persons

9.01 Introduction If police have reason to believe either that something of evidentiary significance is ab to disappear or that a person is in imminent danger of serious harm, they may engage a search nec to prevent the threat, even when apprehension of suspect or search of a mobile vehicle is not involved 9.02 Persons Alcohol in blood is the classic ex of evanescent or vanishing evidence pg.234 The first Ct case upholding warrantless intrusion into persons body to obtain such evid was Breithaupt v. Abram: blood test procedure used would not be considered offensive b/c had b/c routine in everyday life Schmerber v. CA: Ct found that 4thA was clearly menat to protect dignity and privacy interests implicated by body searches and it agreed w/ Breithaupt that such searchers could be conducted w/out a warrant provided that 1. There is no time to obtain one 2. There is a clear indication that the search will result in the desired evidence; and 3. The search is conducted in a reasonable manner (a) The exigency Requirement Cupp v. Murphy: w/out warrant police forcibly removed matter from under suspects fingernails; Ct reasoned that police had PC to belive that higly evanescent evidence was in the process of being destroyed and acted reasonably in preventing its destruction (b) The clear indication standard In addition to exigency, there must be a clear indication that an immediate search will produce evidence before a warrantless body search may occur. This language could be construed to require more than PC. Schmerber Ct seemed to require at least PC for the blood test.
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However, on the border less than PC may suffice: in US v. Montoya de Hernandez, Ct equated the clear indication phrase with the leser reasonable suspicion standard. (c) The reasonable manner requirement 3 limitations on performance of emergency bodily intrusions: 1)test was effective means of determining blood alcohol levels; 2)involved no risk trauma or pain; conducted in hospital by trained physician in accordance w/ medical practices

9.03 Houses, papers and Effects US v. Chadwick: warrant would not be required where police believed footlocker contained evidence which would lose its value unless it were opened at once; or if had reason to believe it contained explosives or other inherently dangerous items Utah v. Stuart: 4th amend doesnt require police to wait until another blow rendered someone unconscious; police can act to prevent violence and restore order; recall, subjective motivations of police are not relevant to 4thA. Analysis. Stuart left unanswered whether police observations must est PC to believe exigency exists they only stated that police need an objectively reasonable basis to believe someone has or will be injured so language could permit reas. Suspicion. ALI Scenarios: pg.240. warrantless entries upon reasonable cause to believe that the premises contain: o Individuals in imminent danger of death or serious bodily harm o Things imminently likely to burn, explode or cause death, bodily harm or subst. destruction of property o Things subject to seizurewhich will cause or be used to cause death or bodily harm if their seizure is delayed o Basically when compelling urgency to act immediately So, as is true of searches of the body, a warrantless entry to find evanescent evidence or avert harm should 1. Be based on PC to believe that an immediate entry is nec to obtain the evid or avert harm 2. Offer an effective means of preventing the threat 3. Be limited in scope to the purpose of the search 4. Be reasonable conducted 9.04 ConclusionPg. 241 Read It!

Chapter 10: PLAIN VIEW

10.01 Introduction PVD is designed to permit warrantless seizures as opposed to searches. Police may seize items w/out a warrant authorizing such seizure if: (1) Their intrusion into the area in which the evidence is located is lawful (2) The items are immediately apparent as evidence of criminal activity; and (3) The discovery of the evidence is inadvertent 10.02 Prior Valid Intrusion Colorado v. Bannister: officer seized lug nuts in PV under the auto exception which permits warrantless searches of cars and seizures and search of items therein, when there is PC to believe car contains items and some sort of exigency exists (the PC came from the sighting the suspects matching the radio description and the inherent mobility of the car provided exigency). The PVD was not applicable
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10.03 Items that May be Seized Items must be immediately apparent as evid of criminal activity In TX v. Brown, however, Ct made clear that police need not be certain that the item seized is evid of criminal activity. All that is required to meet the PVD is PC. While brown held that only PC is nec to meet the second element of the PV exception, AZ v. Hicks est that a lesser degree of suspicion is insuff to meet this element. Hicks allows for the first time, warrantless PV searches as well as warrantless seizures so long as there is PC. Also, if police are validly on premises and smell an odor or feel an object that give them pc to believe an item is evidence of criminal activity they should be able to seize it w/out warrant. Whatever items police plainly hear from a lawful listening during properly authorized electronic surveillance pg. 247 10.04 Inadvertence and Pretextual Searches Horton v.CA: SCT mooted the debate over whether inadvertence should be equated w/ lack of pc by eliminating the inadvertence requi. Pg. 250 Whren v. US: Ct held that pretextual stops and searches do not violate the 4thA. at least so long as police have PC to believe a violation of some law has occurred. Ct also noted that subjective intention play no role in ordinary PC 4th A. analysis o Ct expressed 3 exceptions to its ruling rejection a pretext doctrine i. Proof that a search or seizure was the product of intentional racial discrimination might provide basis for relief under the 14thA ii. Where the basis for the search or seizure is not pc, (inventory searches and many types of regulatory inspections) 4thA might still prohibit pretextual actions iii. There might be some situations where the search and seizure wks such a sign harm on the individual that pretextual actions would be barred even when there is pc for the police action 10.05 Conclusion: p. 251 Principles of PV analysis= (1) A prior valid intrusion is required, based on a warrant, an exception to the warrant requirement, or some other circumstance (such as a lawful inspection) (2) Items not contemplated bya the initial authorization may nonetheless be seized (or searched) w/out a warrant, so long asby look, feel, smell, or soundthey give police PC to believe they are evidence of criminal activity (3) Proof that the justification given for the intrusion was pretextual does not establish a constitutional violation so long as the pretextual justification meets objective 4thAmend standards, unless, perhaps, the pretextual justification does not require PC or involves significant harm to the individual, or the real reason for the intrusion is racial bias

Chapter 11: Stop and Frisk

11.01 Introduction p. 253 Terry raises 4 issues: (1) The definition of stop and seizure (2) The justification for a stop and lesser seizures (3) The justification for a frisk; and (4) The scope of the frisk 11.02 The Definition of Seizures and Stops
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(a) Of the Person

- Arrest v. Investigative Stop: depends on factors o Purpose of the detention (fingerprinting v. interrogation o Its location (filed v. stationhouse o Duration-Most importantly (temporary confrontation v. custodial detention). SCOTUS not set a precise time limit; - When has a seizure occurred so as to implicate 4thAmend (& thus the Terry balancing analysis)? o Not all personal interaction b/w policemen and citizens involve seizures of persons. Only when the officer by means of force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred o Since Terry the Ct has narrowed the definition of seizure holding in CA v. Hodari D. that while restraint is a nec condition for a seizure it is not nec sufficient; the question is more complex and fact specific so must look at theses following cases: o U.S. v. Mendenhall: The test for determining when someone was seized under the 4thAmend should be when a reas. Person would have believed that he was not free to leave o Florida v. Royer: same facts as Mendenhall but officer did not return Royers ticket/license and under circumstances the officer didnt indicate he was free to depart and 4th Amend seizure took place o Brendlin v. CA: a passenger in a car is seized during a car stop. Officer is exercising control where no one in car is free to depart w/out permission. o No seizure takes place when police merely question an individual for a few moments at least if the questioning occurs at his place of work. Immigration &Naturalization Service v. Delgado: the stationing of officers at the doors of the factory did no constitute a seizure as the emplees freedom was already somewhat restricted by the demands of their workplace and the surveys didnt prevent them from pursuing ordinary business o Fl v. Rodriguez: Ct affirmed Delgado as officer approached D in airport, showed badge, got consent from D to talk and moved 15 feet to where others were o Michigan v. Chesternut: police actions here were not so intimidating that under the Mendenhall test the D could reas believe that he was no free to disregard the police presence (D ran when saw police and cops speed up to ask where he was going) p.258-9 o CA v. Hodari D: a mere show of authority, absent physical contact or submission to that authority, is not a seizure as the word is commonly understood and is therefore not a 4thA seizure. o FL v. Bostick & US v. Drayton: police board bus as part of routine drug interdiction effort ask for ids and to search luggage. Ct said proper test for determining seizure is whether a reasonable person was not at liberty to ignore the police presence and go a/b his business. (b) Of effects - US v. Place: 90 min detention of Ds luggage at airport to arrange dog sniff was unconstitutional b/c of duration and failure of agents to inform D of place, time, return of luggage . The language suggests that if luggage can be detained w/out interrupting a persons travel places or other liberty interest a seizure of luggage on less than PC would be permissible. Ct said strong countervailing gov interest would justify a seizure based on specific articulable facts that the property contains contraband, evid of crime. - On the other end of the spectrum there are some situations where restraints on effects do not amount to seizure: US. V. Van Leeuwen held no suspicion was nec since no interest protected by the 4th A was invaded by forwarding the packages the following day rather than the day they were deposited in the mail; warrantless police action didnt invade either the Ds privacy interest in the content of the packages or any possessory interest.p.262
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11.03 Permissible Grounds for Seizures and Stops Since Terry, Ct has sanctioned some types of seizures on less than RS Below is historical perspective on Cts evolving approach (a) The Reasonable Suspicion Standard - Sibron v. NY: just talking to known addicts and reaching into picket doesnt produce reas inference that criminal activity is afoot - Peter v. NY: tiptoe and running away when see police was suff grounds for a stop and patdown - US v. Brignoni-Ponce: border patrol randomly stops cars NEAR the border to detect entry of illegal aliens and Ct said except at the border, border patrol officers are prohibited from stopping vehicles unless they know of specific articulable facts, together w/ rational inferences from those facts, that a particular vehicle contains illegal aliens. Ct listed factors the patrol could consider in deciding whether RS existed: o Characteristic of the area where car found and proximity to the border, information ab recent illegal border crossings in area; the drivers behavior, aspects of vehicle itself, and the appearance of the cars occupants (this factor by itself cant justify a stop) - Delaware v. Prouse p. 264: officer stopped for no reason and ct stated that such discretionary spot checks were no less offensive than the roving border patrol stops it earlier found impermissible in Brignoni; thus an officer may stop a single car to undertake a license check only when he holds and articulable and reas suspicion that a motorist is unlicensed or the car is not registered - The same term the Ct invalidated Prouse in Brown v. TX: RS did not exist to stop man in alley just b/c he looked suspicious; - US v. Mendenhall: officers stopped D b/c she fit a drug courier profile and flew from LA, was the last person off the plane: appeared nervous, etc. Ct said stop was reasonable b/c of difficulty in detecting the transportation of drugs - Reid v. Georgia: sharp contrast to Mendenhall as ct said much of the behavior of D in Reid was innocent and no RS of criminal activity - Florida v. Royer: didnt provide clarification as the factors used to est. RS were also what some deemed innocent. pg. 266 - US v. Sokolow: RS did exist when person bought 3 roundtrip tickets with return time 48 hours after arrival in Miami and paid all in cash w/false number - Illinois v. Wardlow: d ran upon seeing police and this created RS; while, persons presence in high crime area standing alone is insuff to meet RS, but police can consider characteristics of a location but flight and area together here furnished RS; dissent said there are many innocent reasons a person may flee. - U.S. v. Cortez: the assessment of a police action under Terry, should be based on the whole picture taking into consideration all of the circumstances including observations, information from police reports and consideration of the modes or patterns of operation of certain kinds of lawbreakers all viewed from experienced policepersons - US v. Arviza: Ct upheld car stop based on seemingly innocuous factors, emphasizing bothe the need to defer to officer expertise and appropriateness of totality of the circumstances analysis (b) Seizures on Less than Reasonable Suspicion (1) Roadblocks o US v. Martinez-Fuerte: first time Ct held that a 4thAmend seizure may be permitted on virtually no suspicion! o Delaware v. Prouse: Ct applied the reasoning of Martinez-Fuerte. While random license check was unconstitutional, spot checks that involve less intrusion and involved questioning of all oncoming traffic at roadblock may be permissible
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o Michigan Dep of State Police v. Sitz: authorized roadblock which briefly stops every driver

to ascertain whether he is drunk like illegal immigration, the magnitude of the drunk driving crisis combined w/ minimal intrusion occasioned by roadblock justified it. o Aside from these cases, roadblock est primarily to uncover evid of ordinary criminal wrongdoing are NOT permissible under the 4th Amend o Indianapolis v. Edmond: checkpoint set up to allow drug sniffing dogs access to cars was not permitted. Sitz was permitted for drunk driving b/c it was designed to eliminate an immediate, vehicle bound threat to life and limb. o Ill v. Lidster: roadblock set up to id witnesses of an accident but Lidster was found driving drunk and Ct upheld the checkpoint b/c it was designed to apprehend other individuals and the stop was less likely to provoke anxiety or prove intrusive and questioning at checkpoint was analogous to information asked to pedestrians
(2) Seizure of Car Occupants o Penn v. Mimms: Ct again dispensed w/ Terrys requ that suspicion be based on specific

and articulable facts in a situation where the governments interest were perceived to be much stronger than the individuals. Asking driver to step out of the car was a seizure and it no objective facts supporting a suspicion of criminal activity or danger existed but Ct said the seizure was reasonable the added intrusion associated w/ driver getting out ofcar was de minimis. o Ohio v. Robinette: detention associated w/ traffic stop may continue even once the warning or citation has been issued and Ds license returned, at least long enough to ask questions designed to obtain consent to search. o AZ v. Johnson: Ct held car passengers may be held even Beyond the duration of the initial stop so long as the additional seizure is minimal. SI as for police protection/weapon search; case laes unclear how long and for what purpose a passenger who has been asked/ordered to exit car may be detained o Maryland v. Wilson: police can order passengers as well as driver out of the car once the car stop is made; Ct emphasized like in Mimms the high risk to officers w/ car stops (3) Regulatory Inspection o Ct has ruled that when gov can show that significant harm may result from substance abuse the difficulty of otherwise detecting or deterring that harm permits the seizure nec to administer urinalysis, breathalyzer, and blood tests, w/out showing of individualized suspicion
(4) Stops for Loitering o Many statutes like this have been declared unconstitutional b/c they are impermissibly

vague o Papachristou v. City of Jacksonville: Ct struck down municipal ordinance for vagueness, which classified as vagrants in a certain way (dissolute person who begs, etc); ordinance provided no standards guiding the exercise/discretion and encouraged arbitrary and discriminatory enforcement of the law. o Kolender v. Lawson: Ct struck down on vagueness grounds statue as it vested complete discretion in hadn of police to determine if suspect fit the statute. After Kolender, jx tried to devise statues more specifically o Chicago v. Morales: more specific statues was still struck down p. 275 b/c the ordinance still gave police too much discretion to decide who among those who were not movie had no apparent purpose in doing so. Ct said result may have been diff had ordinance limited arrest solely to gang members (as opposed to everyone in the city who may remain in on place) loitering w/ apparently harmful purpose or effect
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(c) Permissible Sources of Information

RS may, like PC, may be based on information provided by third parties Where PC is concerned, police must have substantial grounds for crediting the hearsay information, esp when from informant. However, when RS is the standard, the Aguilar-Spinelli requirement modified for the PC determination have been relaxed further (1) Informants o Adams v. Williams: D S&F by police acting on basis of tip from an informant. Ct held that b/c informant was known to officer, provided info in the past, personally gave the info immediately verifiable at the scen, etc, there was suff indicia of reliability to justify the stop o Alabama v. White: very detailed anonymous tip given to police and Ct stated that while the information possessed by police prior to stop did not rise to the level of PC, it was suff to give them RS. Seemed Informant had inside knowledge o FL v. J.L: Ct did place some limitations on use of anonymous tips. Here, informant didnt seem to have inside knowledge ab the suspect and informant was unknown, unaccountable and supplied no basis for believing he had inside information. Ct indicated it may have reached diff result if reports were of concealed bombs or guns being carried near schools or other areas associated w/ lesser expectation of privacy.
(2) Police flyers p.278

o Skipped during class (3) Profiles and plans o Skipped during class b/c discussed in earlier chapters (4) Types of crimes o Sibron v. NY: a stop merely to obtain evid of narcotics possession was never permissible. Makes sense since no imminent danger to officer of public o Adams v. Williams: S&F to obtain narcotics and a gun was permitted even though police acted on unreliable tip and there was no indication the gun was unlicensed o One situation where stop for a minor crime requires more than RS: US v. Hensleypolice stoped D 12 days after commission of crime of which he was suspected. RS was sufficient b/c requiring PC would hinder investigation and enable suspect to flee in interim. Left open possibility that stops on a RS of past criminal activy might be impermissible if crime is minor. 11.04 Permissible Grounds for a frisk A valid stop does NOT automatically justify a frisk. Terry permitted frisk only when the officer has in addition to the suspicion nec to justify a stop, a RS that the person stopped is armed and dangerous. Terry suggested that before a Frisk can take place: the officer must id himself as a policeman and make reasonable inquires (such as in Hiibel v. Nevada Dest. Ct, a request for the persons name). Types of situations where Frisk may be justified: o Terry: officers observations of D;s actions plus furtive, mumbling behavior permitted frisk o Penn v. Mimms: frisk ok when officer observed large bulge under sports jacket of driver who was asked to get out of car o Ybarra v. Ill: police didnt have suff grounds for frisk in bar where bartender and 12 patrons were frisked for cursory search for weapons. Ct said cant frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked. Frisk must be directed at discovering
58

weapons, not evidence, b/c Ct said Terry shouldnt be expanded from a device for protecting police to an aid to evidence gathering function of the search warrant o However, Minnesota v. Dickerson: D was immediately frisked w/out any inquiries and absent articulable suspicion of danger but ct didnt address this issue instead upheld frisk even though it was meant to assist police in gathering evidence 11.05 The Scope of a Frisk Pg. 282 Once a frisk is justified, Terry allows officer to limit search to outer clothing in attempt to discover weapons. Reaching into persons pocket is impermissible when officer makes no attempt at an initial limited exploration for arms Even if officer feels only contraband he may remove it from the suspects pocket so long as at the time he feels it he has PC to believe it is contraband. Ct adopted this PLAIN FEEL doctrine in Minnesota v. Dickerson: officer frisked D coming out of crack house and w/ manipulation he felt crack but Ct said the manipulation of the package went beyond the scope of valid weapons frisk. Michigan v. Long: Police may search any area from which the person stopped might be able to obtain a weapon. Frisk for weapons is not restricted to the person but rather permitted a protective search of any area which might contain a weapon posing danger to the police. 11.06 Stop and Frisk in the lower Courts (a) The Definition of Seizures and Stops - Most lower cts hold that no seizure occurs when an officer merely confronts a citizen and asks questions (p. 285) (b) Permissible Grounds for Seizures and Stops - Many lower courts require rather specific facts linking the individual to criminal activity before they are willing to find an investigatory stop valid. - P.286 examples of lower court rulings vary. Based on innocent behavior and less than innocent behavior causing RS for a stop - Pg. 287 examples of lower courts ruling on informants in manking the RS determination - Ultimately there is no Bright-Line test for RS. But there are 3 factors that influence both police and courts. Suspicion likely to be present with: (1) Evasiveness (running away) (2) Incongruity (looking out of place) (3) Nature of location (c) Permissible Grounds for a Frisk - From decision a number of discrete factors can be found relevant to a judgment by police that an individual may be armed and presently dangerous and thus worthy of a frisk after the initial stop: o The specific criminal activity which the police suspect may be afoot (if lesser like narcotics possession other totality of circumstances is relevant) o Knowledge of a prior conviction record o Appearance of suspect (not strong factor) o Visual clues indicating presence of weapon suspicious bulge o Association w/ arrested individuals o Whenever officer believes himself in danger o Suggestive movements by suspects (reaching/stowing) (d) Scope of a Frisk - While lower cts have limited frisk to patdown unless officers information suggests immediate more intrusion action, the scope of frisk has been expanded considerably beyond that contemplated by Terry.
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Must be a weapon-like object felt in frisk to be seized.

11.07 The American Law Institute Formulation ALR in $110.02 of its model code of pre-arraignment procedure provides well thought out formutaion of SFD pg. 292-295 11.08 Conclusion Based on the SCOTUSs decisions and lower courts interpretation of those decisions, the following general principles a/b the stop and frisk doctrine can be stated: 4 things on p.295-95

MATT Ch.12-16 (but really ch.11-15ish)

Chapter 11Stop & Frisk I. Generally a. Has a seizure occurred? b. If so, was there reasonable suspicion for the officer to seize the individual or effect? II. Terry Stop a. Scenario when reasonable suspicion justifies a seizure i. A police officer may, in appropriate circumstances and in an appropriate manner, approach a person for the purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. (pg. 254) 60

b. Justification for the stop i. In light of his experience ii. An officer observes unusual conduct which leads him to reasonably believe iii. Criminal activity may be afoot iv. And that persons may be armed and presently dangerous v. He is entitled, for protection, to conduct a limited search vi. Of the outer clothing of such persons vii. In an attempt to recover weapons. viii. Such search is reasonable under the Fourth Amendment. c. Legality of the stop i. As long as the action was justified at its inception, and ii. Was reasonably related in scope to the circumstances which justified the interference in the first place. (this language is later used in the TLO case of searches in schools) d. Terry raised four distinct issues i. The definition of stop ii. The justification for a stop and lesser seizures iii. The justification for a frisk iv. The scope of a frisk III. The definition of Seizures and stops a. Of the person i. Consensual encounters are not seizures ii. U.S. v. Mendenhall 1. A person is seized When a reasonable person would have believed that he was not free to leave. 2. Factors a. Threatening presence of the police officers b. Number of the police officers c. The display of a weapon by an officer d. Physical touching of the person 61

e. Use of language or tone of voice indicating that compliance is compelled iii. During a car stop 1. The passenger in a car is seized 2. Brendlin v. California (pg. 257)

iv. At Work 1. No seizure occurs if police question an individual for a few moments at work. 2. Employees freedom is already somewhat restricted by the demands of their workplace 3. Questioning is not a seizure if it does not prevent the employees from pursuing their ordinary business. 4. INS v. Delgado (1984)(pg. 257) v. Pursuit on Foot 1. A mere show of authority, absent physical contact or submission to that authority is not a seizure 2. California v. Hodari D. (1991)(pg. 259) vi. Pursuit by Vehicle 1. Police accelerated and drove the vehicle parallel to a running individual to see where he was going. 2. Police did not activate a sire or flashers, command the defendant to halt, display any weapons, or operate the vehicle to block the defendants course. 3. The defendant could reasonably have believed that he was free to disregard the police presence. (Mendenhall test) 4. Michigan v. Chesternut (1988)(pg. 258) vii. On a Bus 1. Majority a. Whether a reasonable person is not at liberty to ignore the police b. Police must ask to carry out their action, which suggests the absence of an entitlement c. Bus passengers were allowed to leave the bus for snacks and other items during the interdiction process 62

d. Bus passengers cooperate not because of coercion, but because they know that it enhances their own safety. 2. Dissent a. Interdiction is not a consensual exercise b. Police would prefer cooperation, but would not let the lack of it stand in their way 3. My thoughts a. Seems to be a lot like police conduct at a place of employment. b. The desire to leave the immediate area is limited by other means (work or the imminent departure of the bus). c. Police questioning does not prevent the individual from what they were already doing. d. In these scenarios, the Court considers whether a reasonable person was at liberty to ignore the police and not whether they were free to leave. b. Of Effects i. Under Terry balancing test, some brief detentions of personal effects may be so minimally intrusive of Fourth Amendment interests that strong countervailing governmental interests will justify a seizure. ii. Court makes determination on the totality of the circumstances whether officers have seized an effect. 1. 90 minute detention of luggage at the airport was held unconstitutional because of its duration and failure to accurate inform the respondent about how he would retrieve his luggage. (U.S. v. Place (1983) (pg. 261)). 2. Post office detention of two packages of coins for 29 hours was not a seizure because no Fourth Amendment interest was invaded. a. The warrantless police action did not invade either the defendants privacy interest in the content of the packages or any possessory interest b. U.S. v. Van Leeuwen (1970)(pg. 262) 3. My thoughts a. Van Leeuwen was not a search because the defendant had not yet possessed the item and because a 29 hour retention did not affect him like detention of a suitcase would inconvenience an individual on a trip. 63

b. However, what if Van Leeuwen had mailed the coins to himself? c. What if the reception of those coins was time sensitive to conduct a business transaction? Would there not be a deprivation of possessory interest in those situations similar to that of U.S. v. Place? IV. Permissible Grounds for Seizures and Stops a. Reasonable Suspicion i. Based on a totality of the circumstances and to defer to an officers expertise (U.S. v. Cortez (1981)(pg. 267); U.S. v. Arvizu (2002)(pg. 268)). ii. Elements (pg. 262) 1. Specific and articulable facts 2. That lead the officer to believe that criminal activity is afoot 3. Which may not be based upon an inchoate or unparticularized suspicion or hunch 4. Must be grounded on facts that, in light of the officers experience, 5. Support specific reasonable inferences 6. That justify the intrusion. iii. Defining a level of suspicion 1. Less than probable cause 2. The level will vary, depending upon a. The level of intrusion, on the one hand b. The states interest on the other iv. Scenarios 1. Brignoni-Ponce (1975)(pg. 263) a. Random stops of vehicles near (not at) the border to check for illegal immigrants when there is no indication that the vehicle is transporting illegal immigrants is unconstitutional b. Factors that patrol officers could consider i. Characteristics of the area where the vehicle is found and its proximity to the border ii. Information about recent illegal border crossings in the area iii. The drivers behavior 64

iv. Aspects of the vehicle itself v. And the appearance of the vehicles occupants 2. Delaware v. Prouse (1979) (pg. 264) a. Court held inadmissible marijuana found by police on the floor of a car when he had stopped it in order to check the drivers license and the registration of the vehicle. b. The initial stop was not prompted by suspicious behavior c. No indication at the time of the initial stop that either the license or the registration was invalid 3. Brown v. Texas (1979) (pg. 264) a. A stop based on an observation of an individual or situation that looks suspicious is not a valid stop because there is no activity that creates suspicion of a specific misconduct. v. Unprovoked flight after noticing the presence of police officers may give rise to a reasonable suspicion (in an area known for heavy drug trafficking) 1. Flight is an act of evasion, not merely a failure to cooperate 2. Illinois v. Wardlow (2000) (pg. 267) b. Seizures on Less Than Probable Cause i. Roadblocks 1. At the Border a. The initial stop and any secondary inspection are considered seizures b. The state and individual interest involved are different from those implicated in the typical stop and frisk situation c. Officials, rather than officers in the field, establish the location of the checkpoint and their decisions can be easily reviewed d. A fixed checkpoint minimizes potential interference with legitimate traffic and provides visible manifestations of the field officers authority e. U.S. v. Martinez-Fuerte (1976)(pg. 268) 2. Sobriety Checkpoints a. The magnitude of the drunk driving crisis combined with minimal intrusion justifies its use b. Michigan Dept. of State Police v. Sitz (1990)(pg. 269) 65

3. Other Criminal Conduct a. Roadblocks established primarily to uncover evidence of ordinary criminal wrongdoing are not permissible. b. The subjective intent behind police search and seizures is irrelevant only when the police clearly have an objectively legitimate reason for stopping the individual in the first intance c. Indianapolis v. Edmond (2000)(pg. 270) ii. Seizures of Car Occupants 1. Exiting the Vehicle a. Once a car is lawfully stopped, an officer may permissibly request the driver to exit the vehicle without reasonable suspicion. b. The driver is being asked to expose very little more of his person than is already exposed c. Officers incur an inordinate risk when he approaches a person seated in an automobile d. Pennsylvania v. Mimms (1977)(pg. 272) e. This applies to passengers as well i. Maryland v. Wilson (1997)(pg. 273) 2. After the warning or citation has been issued a. So long as there is probable cause authorizing a citation (i.e. speeding) the offers subjective reasons for detaining an individual are irrelevant b. After the officer issued a traffic citation, he handed back the license and asked one question before you get gone. The driver consented to a search for drugs. The defendant argued that once the ticket was issued, the officer had no grounds to detain him any longer. c. Ohio v. Robinette (1996)(pg. 272) iii. Regulatory Inspections 1. When the government can show that significant harm may result from substance abuse, the difficulty of otherwise detecting or deterring that harm permits government investigation with a particularized suspicion (pg. 273) 2. See Ch. 13. iv. Stops for Loitering 66

1. All statutes that authorize the police to stop or arrest suspicious-looking individuals or persons considered disreputable on grounds short of an articulable suspicion that criminal activity is afoot have been held unconstitutional 2. They have been held unconstitutional on the grounds of vagueness and that they give unfettered discretion to field officers 3. Pg. 274 c. Permissible Sources of Information i. Informants 1. When using reasonable suspicion as the basis of a seizure, the Court relaxes the Aguilar-Spinelli requirements more so then when it uses its analysis for a probable cause arrest. ii. Police Flyers 1. Police are entitled to rely on notices and wanted flyers from other jurisdictions in stopping individuals 2. So long as the jurisdiction which issued the flyer had specific and articulable facts to suspect the individual 3. Of past or present criminal activity 4. At the time that the flyer was issued 5. And the stop is not significantly more intrusive than would have been permitted by the issuing department 6. U.S. v. Hensley (1985)(pg. 278) iii. Profiles and Plans 1. Types of generalized suspicion 2. The Court has been cautious about authorizing profiles 3. Plans fall under the health and safety inspections or INS v. Delgado in which officers had a warrant to investigate a factory that possibly employed illegal aliens a. Health and safety inspections do not offer an articulable suspicion about a violation of a specific home, just that the homes in an area might have code violations b. Suspicions in Delgado were not about a specific person, but about the employees at a factory 4. See Ch. 13 d. Types of Crimes 67

i. Using the Terry balancing test, the Court seems to utilize a scale of suspicion and seriousness of the crime. The more serious the crime investigated, the less specific and articulable the suspicion needs to be to effectuate a seizure. Adams v. Williams (1972)(pg. 279) ii. Also on the scale, the officer might be able to consider whether an investigation might be hindered or a suspect is allowed to flee if the seizure does not occur. U.S. v. Hensley (1985)(pg. 279) V. Permissible Grounds for a Frisk a. A valid stop does not always justify a frisk b. A frisk is permissible when the officer holds a reasonable suspicion that the person stopped is armed and dangerous. It is not meant to assist police in gathering evidence. c. A frisk requires an individualized suspicion. It cannot be done to generally secure an area, but must be done with a reasonable belief that the individual is armed. (applies when the officer frisks an individual who is not yet under arrest because those persons may be searched incident to an arrest.) i. Ybarra v. Illinois (1979)(pg. 281) ii. Officers secured a bar and frisk the patrons, who were not the target of the investigation. d. Before a frisk takes place i. The officer must identify himself as a policeman ii. And make reasonable inquiries 1. The persons name 2. What the person is up to iii. However, an officer need not make reasonable inquiries and may effectuate a frisk or seizure of an effect in light of the defendants apparent unwillingness to cooperate VI. Scope of a Frisk a. Elements i. The officer may undertake a carefully limited search of the outer clothing ii. In an attempt to discover weapons iii. Which may be used to assault him b. Danger defines the scope of the intrusion c. Other Contraband 68

i. The Plain Feel doctrine ii. Even if the officer feels only contraband 1. He may remove it from the suspects pocket 2. So long as at the time he initially feels it 3. He has probable cause to believe that it is contraband iii. This rule flowed from the plain view doctrine 1. Which permits seizure of evidence 2. In plain view 3. From a place that the officer has validly 4. Intruded upon a. As opposed to when the officer observes evidence from a public place of which there is no intrusion upon anyones property or rights (lawful or public vantage doctrine) iv. Does not allow an officer to manipulate a package beyond the scope of a valid weapons frisk v. Problems 1. An officers touch is not as reliable as his vision 2. What an officer can see can be independently reviewed where as what he thinks he felt relies on the officers honesty and accuracy of his tactile skills 3. This doctrine expands Terry beyond weapons and officer protection d. Expansion of the Scope of the Frisk i. Police may search any area from which the person stopped might be able to obtain a weapon. Michigan v. Long (1983)(pg. 283) ii. Limits the search to those areas to which the individual would generally have immediate control and that could contain a weapon 1. Is more expansive than to the areas in which the individual does actually have control over 2. Court upheld the search of a vehicle of which police noticed a legal hunting knife on the floorboard 3. Even though the defendant was already outside of the vehicle and arrested VII.Stop and Frisk in Lower Courts 69

a. In determining whether a confrontation is a seizure, lower court have focused on the degree of coercion present i. Consider tone and content b. No seizure occurs merely because an officer confronts a citizen and asks questions c. Questions that the lower courts consider i. The permissible duration of a stop depending upon the reasonableness of an officers attempts to reduce delay ii. Permissible grounds for seizures and stops 1. Some courts require rather specific facts 2. While others find adequate cause to effectuate a stop with reasonable suspicion when the facts are less determinative of criminal activity d. Generally courts routinely consider the i. Evasiveness of the defendant ii. The incongruity of the defendant given the surroundings 1. Looking in a store window at 2am iii. The nature of the location 1. High crime or drug area e. Most courts recognize that these factors are consistent with innocent behavior as well as guilty behavior, but uphold a reasonable suspicion when two of the three factors are met. VIII. The American Law Institute Formula a. Pg. 292 b. Requires police to inform persons of their rights as promptly as is reasonable under the circumstances IX. Conclusion a. Whether there has been a Seizure i. Duration of the dentition ii. Whether police actions were threatening iii. Whether the person detained was physically touched iv. Whether the detention took place in an enclosed area as opposed to a public one v. Clearly coercive gestures or tones 70

vi. Whether a reasonable person would feel free to decline police requests b. Seizure based on a Reasonable suspicionGenerally, a person may be seized when i. Terry Stop 1. The officer observes the person engage in unusual conduct 2. Leading to a reasonable suspicion that a criminal activity has occurred, is occurring, or is about to occur, and 3. The officer can point to specific and articulable facts to warrant the suspicion ii. The officer receives information from an informant having some indicia of reliability (but not that required for probable cause iii. The officer receives communication from another police department that the person is believed to have engaged in criminal activity. c. Seizures based on less than reasonable suspicionor no suspicion i. Roadblocks in which there is a compelling state interest (dui, but not for drugs) ii. No reasonable suspicion is required to justify requests to disembark from a car following a legal stop iii. Orders to disperse pursuant to valid anti-loitering statutes (though the Court has yet to uphold such a statute) iv. If a stop is authorized on reasonable suspicion or less, reasonable inquiries designed to test the suspicion should be made. d. Frisks i. If authorized, it may include: 1. A pat down of the outer clothing 2. A search of the area immediately surrounding the person 3. Objects that do not initially feel like weapons may not be manipulated to determine their nature. Chapter 12Consent Searches I. Generally a. A valid consent eliminates both the warrant and the suspicion requirements for searches b. Does not apply to cases involving undercover officers, which beg the question whether the Fourth Amendment applies at all c. Issues 71

i. Whether the consent is voluntary ii. Whether the search conforms to the consent given iii. Whether the consentor had authority to give consent in the area searched II. The Voluntariness Requirement a. Whether consent is voluntarily is based on a totality of the circumstances. Schneckloth v. Bustamonte (1973)(pg. 299) b. Knowledge of the right i. A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst (1938)(pg. 300) ii. Knowledge of the right to refuse consent is only one of the circumstances to be considered in the totality of the circumstances analysis iii. The prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent 1. It would be difficult to prove awareness 2. It would be impractical to inform a defendant of all of his rights at the moment that he is taken into custody given external factors such as time and danger 3. A waiver (which is an intentionally relinquishment of a right) applies only to those rights guaranteed to a criminal defendant to insure a fair criminal trial a. And thus does not extend to the protections of the Fourth Amendment b. Which are of a wholly different order, and have nothing whatever to do with promoting the fair ascertainment of truth at a criminal trial. c. Custody i. An arrested person may be under more duress than one who is not ii. However, it is not always dispositive 1. An arrest on a public street followed by a request to search the defendants vehicle was considered valid consent. U.S. v. Watson (1976)(pg. 302) 2. Consent to search a room at a business after the individual was arrested was considered valid a. The public character of the property b. The fact that demand was made during business hours 72

c. The nature of the request d. The fact that the initial refusal was soon followed by acquiescence e. The existence of the right to inspect f. Davis v. U.S. (1946)(pg. 302) iii. Miranda relies on the assumption that an arrest is inherently coercive and requires warnings about the right to remain silent d. Force, Show of Force, and Threats i. Consent is not valid if coerced, by explicit or implicit means, by implied threat or covert force. Schneckloth v. Bustamonte (1973)(pg.303) ii. Coercion exists when the police, lacking the requisite warrant or suspicion, announce they are going to search. Johnson v. U.S. (1948)(pg. 303) 1. When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search 2. Court found invalid the consent of the defendants grandmother, a 66 yearold black widow (in 1968), to a search of her house after four white police officers appeared at her door and announced they had a search warrant. 3. Bumper v. North Carolina (1968)(pg. 304) 4. The officers show of authority coerced the consent iii. U.S. v. Mendenhall (1980)(pg. 304) 1. All searches were considered voluntarily 2. Defendant was a 22 year old black female approached by white, male officers 3. She was approached at an airport because her behavior suggested to the officers that she might be carrying narcotics 4. The officers approached her and identified themselves 5. When their suspicions were further aroused from a few questions, the officers asked her to accompany them to an office for further questioning 6. She was asked if they could search her handbag, a. She was told that she could deny this request, but she consented b. another plane ticket in another name was found

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7. A female officer asked to search the defendant further, and she consented a. After partially disrobing, the defendant handed over two packages of heroin iv. Under surprise, confusion, and flight, consent was involuntary. U.S. v. Whitlock (6th Cir. 1977)(pg. 305) v. Consent that is the product of verbal threats (of fines, jail time, or destruction of property) are involuntary (pg. 305306) e. Personal Characteristics i. Factors considered in the totality of the circumstances 1. Schooling 2. Intelligence 3. Age 4. Illiteracy 5. Substance abuse 6. Emotional state 7. English language proficiency ii. The confession of a mentally ill individual is voluntary so long as police do not recognize and exploit the illness in their attempts to obtain information 1. Flows from the premise that the Constitution is meant to impose constraints on the police, not to protect individual rights in situations where the police could not have been deterred by a constitutional ruling. III. The Scope of a Consent Search a. The scope of a search conducted pursuant to a consent is governed by the nature of the consent i. Any articles within the consented area may be examined if it is objectively reasonable for the officer to believe that the scope of the persons consent permits him to do so 1. If the individual consented to a search for stolen t.v.s, an officer may not search a small brown bag because it is not reasonable to believe that the t.v. was there or that the consent extended to that item. ii. Items in Plain View during a consent search may be seized b. Withdrawal or Limitation of the search i. Can be done at any time during the search. (ALI) (pg. 308) 74

ii. Constructive Withdrawal 1. Consent to search an area is not indefinite 2. State v. Brochu (1984)(pg. 308) a. Man consented to a search of his home for evidence concerning his wifes murder. b. He was subsequently arrested for that crime c. A search of his home the next day was not authorized by the initial consent d. When the role of the defendant changed from assisting husband to arrested suspect, his consent was constructively withdrawn c. When officers obtain probable cause after the initial consent, a party may still withdraw consent, however officers have an independent reason to justify their search. IV. Third Party Consent a. Post-Katz reasonable expectation of privacy analysis. Katz was decided in 1971 b. Court does not consider whether the third party has a property interest, but rather whether the third party has a common authority or other sufficient relationship to the premises or property or effects sought to be inspected. i. Mutual use of the property by persons generally having joint access or control ii. Discards the property based view of third party consents iii. U.S. v. Matlock (1974)(pg. 310) c. When an area is shared by more than one person, more than one person may consent to its search d. Common Authority i. Landlord 1. Chapman v. U.S. 1961 (pg. 310) 2. Court held invalid a consent by a landlord of a tenants home despite the claim that the renters contract allowed the landlord to view the premises if it was wasted and used for criminal purposes 3. The court was unable to find any state or common law that gave the landlord the right to forcibly enter the premise without consent and without an express covenant to do so. ii. Hotel 1. Stoner v. California (1964)(pg. 310) 75

2. Consent by a hotel clerk was found insufficient because a guest can surrender his Fourth Amendment right only directly or through an agent a. Can a cleaning person allow officers in if during the course of cleaning the room iii. Roommate 1. A roommate may permit common areas to be searched 2. A roommate cannot permit a search of anothers room if there is no control over that room. a. Cain always talks about how a mother cannot consent to a search of her daughters room, in the mothers home, if the mother does not consistently have access to the room b. My thoughts i. If the roommate never goes into your room without permission, then the search is invalid because the roommate could not consent to the search ii. If the roommate does have authority to consent, then it means that he has some control over the area, and I would argue that any incriminating evidence found (drugs) could belong to the roommate. e. Apparent Authority i. Whether the facts available to the officer warranted a man of reasonable caution in the belief that the consenting party had authority over the premise. 1. Does not require that factual determinations made by magistrates or police be correct, but that they be reasonable ii. Illinois v. Rodriguez (1990)(pg. 311) 1. Court adopted apparent authority 2. When police arrived at defendants apartment to search it, an exgirlfriend let the officers in the home (police did not know that she was an ex-girlfriend with no rights to the house) 3. She let the officers in with a key 4. She referred to the apartment as our apartment 5. She said that she had clothes and furniture in the apartment 6. Court held that she did not have actual authority, but had apparent authority iii. Justice Marshall dissents 76

1. When police fail to get a warrant, instead of relying on the consent of the third party, the police rather than the defendant should accept the risk of error f. Defendant present i. When the defendant is present and refuses consent over it does not matter that a third party with actual authority is consenting, an officer does not have consent to search the house ii. When one party objects, officers do not have authority to search by consent 1. When one party consents and the other is asleep, there is no objection by the sleeping party and officers have authority to search the premises. a. Until the other party awakes and objects because the scope of the search is limited in that it can be terminated at any point. iii. Georgia v. Randolph (2006)(pg. 312) iv. Dissent 1. Urged that various fact patterns could yield vastly different expectations about whether an officer should enter the home with consent of one resident and an objection by the other resident 2. Fear of retribution by the non-consenting owner against the consenting owner 3. However, officers would be able to intervene where there are exigent circumstances V. Conclusion a. In order for a consent to be valid, it must be voluntary under the totality of the circumstances b. Factors i. Whether the consenter knew of his right to refuse the search ii. Whether the consentor was in custody at the time of consent iii. Whether police claimed to have authority to conduct a search iv. The extent to which the consentor finds it particularly difficult to resist police suggestions c. The scope of the consent search can be limited by the consentor to specific areas or types of items d. Theoretically, a consent may be terminated at any time e. A voluntarily consent of a person who shares authority over an area can is valid for a search 77

i. Agency laws of actual, implied, and apparent authority apply here f. However, if the defendant is present and refuses consent, a search is not valid

Chapter 13Regulatory Inspections and Searches I. Camera Factors a. The difficulty of detecting the harm caused by regulatory violations if a warrant and probably cause are required b. The likelihood that regulatory officials will experience difficulty mastering the warrant procedure c. The disruption a warrant and probable cause requirement will cause to the smooth operation of the government II. Inspections of Homes a. Generalized suspicion b. Probable cause to obtain a warrant is sufficient when the area, as a whole, needs inspection i. Factors 1. Age of the buildings 2. Passage of time 3. Other conditions ii. Probable cause for individualized homes would not allow inspectors to efficiently detect difficult violations (such as faulty wiring). iii. An inspection, in this context, is a relatively limited invasion c. Welfare visitations are not searches under the Fourteenth Amendment i. Fourth Amendment does not apply when the search cannot result in criminal sanctions (such as in welfare cases)(pg. 318) III. Inspections of Businesses a. Key Issue i. The comprehensiveness of the regulatory scheme. Pg. 321 b. Notes about the following TEST i. The duration of regulation is considered a factor to determine whether an industry is in fact closely regulated, but it is not dispositive. (pg. 321)

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ii. The additional criteria of the test used to be encompassed in one element: that the industry in question must be pervasively regulated so that an owner is put on notice. 1. However, the Court held that a finding that an industry is pervasively regulated is not enough to justify warrantless business inspections. 2. Thus the court imposed three additional criteria in place of the pervasiveness element. c. Test i. The violation sought to be discovered must be of the type that are easily hidden (as opposed to easily correctable) ii. Must apply to a specific industry 1. OSHA warrantless inspections were not constitutional a. Pg. 320 b. Marshall v. Barlow (1978) iii. The industry must be closely regulated Dewey Criteria 1. The government must have a substantial interest in the activity being regulated 2. Warrantless searches must be necessary to the effective enforcement of the law 3. The inspection program must provide a constitutionally adequate substitute for a warrant. a. Does the statute provide adequate notice b. For Example: Does the statute i. Require inspection of all businesses within the industry ii. Define the frequency of inspection iii. Provide precise standards with which to comply iv. Establishe a specific mechanism for accommodating special privacy concerns d. Law i. Unauthorized force is not allowed ii. In some cases, as in Dewey, inspectors may have to obtain some sort of judicial authorization to override a refusal when doing so will not frustrate the objective of the inspection process 1. Example: Health and Safety inspections 79

2. The delay occasioned by seeking such authorization after a refusal will often lead to correction of the deficiencies the government wants corrected. IV. Fire Inspections a. No Warrant i. During the fire ii. Immediately after the fire for the purpose of determining its origins iii. An inspection conducted within a reasonable time after the fire 1. However, the inspection must be preceded by notice a. On the owner? Manager? Employee? b. Administrative Warrant i. Once the exigency produced by the fire has ended ii. A fire search is necessarily responsive to an individualized event 1. A more particularized inquiry may be necessary to justify the warrant to search a fire scene than for a normal business investigation iii. Factors to consider when determining whether an administrative warrant is required Book doesnt tell which way each factor cuts (though some are obvious) 1. The number of prior entries 2. The scope of the search 3. The time of day when it is proposed to be made 4. The time lapse since the fire 5. The continued use of the building 6. The owners efforts to secure the building against intruders c. Traditional Warrant and particularized suspicions i. When suspicion develops as to a criminal motive 1. I assume that this means a criminal motive of arson by the owner of a building or the owner of a business in the building or an agent of either. Because any other defendant would not have standing to challenge the search, so a warrant would not be required. V. Border Inspections a. General 80

i. Camera Balance Test 1. National self-protection permits the government to require one entering the country to identify himself as entitled to come in. 2. At the border, the governments interest is at its Zenith ii. This section applies to government authority at the border. This means at check points that are literally at the border or international airports in order to control movement into and out of the country. b. Routine Searches i. Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion 1. Ones expectation of privacy is less at the border than the interior 2. The Fourth Amendment balance between the interests of the government and the individual is more favorable to the Government at the border a. The invasiveness of routine searches at the border is said to be minimal because people expect and understand the need for searches ii. Neither a warrant or individualized suspicion is needed for routine border searches and seizures c. Non-routine Searches i. Searches and seizures can be based on reasonable suspicion alone ii. Lower courts 1. Have permitted rectal examinations and other body cavity searches on less than probable cause 2. Strip searches have also been permitted on reasonable suspicion. iii. International Mail 1. Federal law authorizes inspection of international mail whenever there is reasonable suspicion to suspect that the mail contains illegally imported merchandise. 2. However, the federal regulations prohibit reading correspondence without a warrant. VI. Checkpoints a. United States v. Martinez-Fuerte (1976) b. Illegal Immigrants 81

i. Roadblocks at the border are constitutional for the purposes of detecting and deterring the flow of illegal immigrants into the country 1. No warrant, probable cause, nor reasonable individualized suspicion is required. ii. Camera type balance test 1. The degree of intrusion for the purposes of questioning the occupants about their residence is minimal. 2. Notice provided by a warrant is unnecessary given the visible manifestations of the officers authority at the checkpoint 3. The validity of the checkpoint is easily reviewed (???) (pg. 329) 4. ** Most importantly ** the location of the roadblock was not established by officers in the field, but by officials responsible for making overall decisions. 5. The traffic flow is too heavy to allow particularized study of vehicles 6. A suspicion requirement would neutralize the deterrent which fixed checkpoints present. c. Sobriety Checkpoints i. Michigan Dept. of State Police v. Sitz (1990) ii. General Law 1. Sobriety checkpoints are upheld for the purposes of detecting drunk driving 2. In response to suggesting that there are less intrusive means for accomplishing detection of drunk driving, the court responded by stating: a. The choice among reasonable alternatives remains with the governmental officials who have a unique understanding of, and a responsibility for, limited public resources, including a finite number of police officers. d. License and Safety Checks i. Delaware v. Prouse (1979) ii. General Law 1. Random stops of individuals (as opposed to checkpoints) are not permissible as a means of checking licenses. a. Must have a reasonable suspicion that traffic laws are being violated. 82

2. However, checkpoints, which involve less intrusion, are permissible for the purposes of checking driver and vehicle documents (ex: truck driver weigh stations). 3. Questioning all traffic or using a specified patter (questioning 1 in 10 drivers) are both permissible. (pg. 331). iii. Road block evasion 1. Some courts have held that turning around prior to a roadblock provides reasonable suspicion of involvement in some sort of illegality. a. Case cited for this proposition is Coffman v. Arkansas (1998). b. *** How does this correlate to the Arkansas Supreme Court interpretation that an individual must be suspected of a particular crime in order to be stopped pursuant to Rule 3.1 of the ARCP? 2. Other courts have emphasized that the mere act of avoiding contact with the police should not create an articulable suspicion of criminal activity. e. Boat Inspections i. United States v. Villamonte-Marques (1983) ii. General 1. Random boat inspections (individually, not at a checkpoint) are permissible. 2. They are analogized to border searches, at least when the waterways have ready access to the sea. VII.Inventories a. Of Vehicles i. Assuming that probable cause to search does not exist at the time of impoundment, warrantless inventories of cars cannot be justified under the automobile exception ii. Warrantless inventories are permissible on regulatory grounds 1. South Dakota v. Opperman (1976)(pg. 333) iii. Inventory searches are permissible provided that they are 1. Pursuant to a lawful impoundment 2. Of a routine nature 3. Are not a mere pretext concealing an investigatory police motive 83

iv. The justification for allowing inventory searches 1. Avoiding harm to the police 2. Avoiding false claims of theft 3. Preventing vandalism of property v. Expansion of the Scope 1. Containers found in the course of an inventory search may be searched. Colorado v. Bertine (1987)(pg. 334) 2. The ability to conduct an inventory does not diminish as the security of the facility is increased 3. Police need not allow owners of vehicles to make alternate arrangements to avoid the inventory search vi. The scope of the inventory search is limited to those areas where valuables might normally be kept 1. Police are not authorized to search in the air vents, the gas tank, in between panels under the authority of an inventory search 2. However, an inventory search may lead to probable cause to search obscure areas of the vehicle 3. Michigan v. Thomas (1982)(pg. 335) vii. An inventory search can take place well after the original impoundment viii. For a recap, read the first full paragraph on pg. 336 b. Of Persons i. The justification of such searches does not rest on probable cause and hence the absence of a warrant is immaterial to the reasonableness of the search. 1. Illinois v. Lafayette (1983)(pg. 336) 2. Police searched a shoulder bag subsequent to an arrest of the individual and found amphetamine pills 3. Officers need not make fine and subtle distinctions in deciding which containers or items may be searched and which must be sealed as a unit VIII. School and Workplace Searches a. Generally i. Public school officials are government officials for the purposes of the Fourth Amendment ii. Schoolchildren are entitled to some protection under the amendment 84

b. A warrant or probable cause is not required to effectuate a search in a school setting i. Would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools 1. Similar to Camera (health and safety inspections, see pg. 13) ii. Would be unduly burdensome in light of the substantial need to maintain order in the schools iii. New Jersey v. T.L.O. (1985)(pg. 337) 1. Teacher found 14 year old student smoking in the high schools bathroom 2. Vice principal looked through her purse 3. Found a package of cigarettes and rolling papers 4. Searched more carefully and found marijuana c. Reasonableness Analysis i. Used the Terry test 1. Whether the action was justified at its inception 2. Whether the search was reasonably related in scope to the circumstances which justified the interference in the first place d. Special Needs i. Justice Blackmuns concurrence in T.L.O. ii. Only in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable, is a court entitled to substitute its balancing of interests for that of the Framers e. Workplace i. Neither a warrant nor probable cause is required to justify a search of a government employees office ii. when the search is a non-investigatory work-related intrusion iii. or a search for evidence of employee misfeasance iv. and not for a criminal investigation IX. Testing for Drug and Alcohol Use a. Regulations which permit drug and alcohol use are permitted in the absence of any individualized suspicion

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b. An individuals privacy right is often significantly diminished by the demands of the workplace c. Constitutionality of such programs depend in large part on 4 factors i. The extent to which the type of employee to be tested is subject to privacy intrusions as a routine aspect of the job ii. The extent to which the job involves potential harm to the public or is otherwise deemed sensitive (government interest) 1. Must be concrete danger. 2. Court struck down a drug testing policy that applies to every person seeking nomination or election to a state office. Chandler v. Miller (1997)(pg. 346) iii. The extent to which the drug or alcohol use can be deterred by a testing program iv. The extent to which discretion is given to those charged with administering the program (the less discretion that the administering agent has, the more likely that it will be deemed constitutional) d. Testing in schools i. Upheld a drug testing program aimed at students involved in any extracurricular activity ii. Justification 1. Generally leads to school discipline sanctions, not criminal sanctions 2. Lesser expectation of privacy in a school setting iii. Evolved from cases that upheld random drug testing directed at students who wanted to participate in school athletic programs. Veronia School District v. Acton (1995)(pg. 344) e. Other factors i. There needs to be a clear understanding of the purpose and scope of the tests ii. The purpose of the test should not be for criminal investigation, but to determine fitness for a particular activity. Law enforcement should not be involved in the inception and implementation of a special needs drug test iii. Ferguson v. City of Charleston (2001)(pg. 347) 1. Nurses were testing pregnant women for drugs and turning over positive results to law enforcement officers 2. Officers were involved in the inception of the program X. Probation and Parole Supervision 86

a. Special Needs situation i. In light of the rehabilitative and preventive goals of probation, probation supervision is a special need of the state ii. A warrant requirement would interfere with the probation officers ability to respond quickly to evidence of misconduct iii. Probation officer is not in an adverse position from the probationer or parolee, but is suppose to have in mind the welfare of the individual b. Probationers and parolees have a diminished expectation of privacy, even in their own home i. Giffin v. Wisconsin (1987)(pg. 348). Probation officer didnt even have a reasonable suspicion, but his search was upheld by the court ii. Fourth Amendment permits law enforcement officer or probation officers to search the home of a parolee or probationer without a reasonable suspicion iii. Samson v. California (2006)(pg. 349)

Chapter 14Technological Surveillance I. Generally

II. Regulation of Communications Surveillance Prior to Title III a. The trespass Doctrine i. In order to constitute an infringement on an individuals rights, the officers had to physically trespass or seize a tangible item protected by the constitution ii. Olmstead v. U.S. (1928)(pg. 355) (overturned by Katz) b. The Federal Communications Act i. No person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, purport, effect or meaning of such intercepted communications to any person ii. If a party to the conversation allowed the eavesdropping, the act was not triggered iii. Applied to public and private entities iv. Violations were found to require exclusion in state prosecutions. Mapp v. Ohio (1961)(pg. 356) c. Katz and Expectation of Privacy Analysis i. Overturned Olmstead ii. Rejected the trespass doctrine 87

iii. One assumes the risk that ones acquaintances will be government agents d. The Fourth Amendment Warrant Requirement i. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 was passed as a minimum requirement to eavesdropping orders. ii. States may apply protections more stringent than Title III, but if a state provides less stringent standards, officers must abide by the requirements of Title III III. Federal Eavesdropping Law: Title III (pg. 358) a. Two Amendments i. 1986 ii. 2001 b. The Scope of Title III i. General 1. 1986 Amendment no longer requires a Title ** warrant for information in electronic storage a. A regular warrant is required for information less than 180 days old b. Subpoena is required for info in storage over 180 days 2. 2001 Amendment allows for an ex parte subpoena to obtain basic subscriber information a. Name, address, session times and durations, length and type of service, means and source of payment, identity of users who use a pseudonym b. To obtain additional information, officers must allege specific and articulable facts relevant to an ongoing investigation 3. Provides protections where the Fourth Amendment does not ii. Types of communications protected 1. Wire Communications a. Includes the radio portion of cordless telephone that is transmitted between the cordless handset and the base unit b. This could be analogized to wireless internet 2. Oral Communications 3. Electronic Communications 88

iii. The definition of Interception 1. the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device. 2. A pen register, which merely records numbers dialed without overhearing verbal communications does not fall within this definition a. Pen register does not even require a regular warrant because it does not constitute a search under the Fourth Amendment b. Smith v. Maryland (1979)(pg. 362) c. Authorized Interceptions (pg. 362) i. A party to the communication 1. A person authorized by a party to the communication ii. Electronic communication made through a system that is configured so that such communication is readily available to the general public 1. Social networking sites 2. Radio communications iii. Quality control checks by common carriers and government agents are allowed for that specific purpose iv. Communications that concern national security 1. U.S. v. U.S. District Court (1972)(pg. 363) 2. The national security exception did not purport to eliminate the necessity of a court order for federal investigations of internal security matters that are not linked to foreign powers v. Foreign Intelligence Surveillance Act of 1978 1. Created a secret court to monitor surveillance aimed at gathering foreign intelligence 2. Required a warrant for non-emergency national security surveillance, based on a probable cause finding that a foreign power or agent would be the target and the national security was the primary purpose a. Amended by the USA Patriot Act of 2001 to permit a FISA warrant whenever the intelligence is a significant purpose of the surveillance instead of the primary purpose b. The Protect America Act (2007) eliminated judicial review entirely when the director of national intelligence and the attorney general certify that the intelligence-gathering is a significant 89

purpose of the surveillance and that there is a reasonable belief that it is targeted at a person outside the U.S. vi. Title III allows for domestic interceptions aimed at ordinary criminals if the application is proper d. Application for an Order (pg. 364) i. Identify the Applicant 1. For oral or wire communications a. Application must be made by the Attorney General or any assistant attorney general specifically designed 2. Electronic communications a. Any attorney for the government ii. Details of the Offense 1. Wire and oral communications a. The list of federal crimes which can trigger interception of wire and oral communications includes virtually any felony 2. Electronic Communications a. Any federal felony iii. Particularity Requirements 1. The need for particularity is especially great in the case of eavesdropping because it involves an intrusion on privacy that is broad in scope. Berger v. New York (1967)(pg. 366) 2. Agents need not list the identity of everyone they believe might be overheard a. Title II requires the naming of a person when the law enforcement authorities have probable cause to believe that that individual is committing the offense for which the wiretap is sought b. U.S. v. Kahn (1974)(pg. 366) 3. Lower courts dont require the specific type of communication sought to be intercepted. Merely require a description of the offense being investigated. a. Important when determining the duration of the Title III warrant iv. The Last Resort Requirement

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1. Requires a showing that other investigative procedures have failed to ensure that electronic eavesdropping is not routinely employed as the initial step in criminal investigations 2. However, this requirement is not strictly adhered to by lower courts v. Durational Elements (pg. 367) 1. Investigators must indicate the amount of time they need to complete the interception 2. May not exceed 30 days per order 3. Must also explain why the interception should not be automatically terminated when the described type of communication has first been obtained a. This requirement is diminished by the lower courts disinclination to require any specificity with respect to the type of communication sought to be intercepted 4. Must describe any previous applications for the same persons or places a. Designed to sensitive the judge to an overly intrusive or prolonged surveillance e. The Wiretap Order i. The judge must make several findings before a Title III warrant may be issued (pg. 369) 1. A probable cause belief that an enumerated offense has been, is being, or will be committed 2. A probable cause belief that particular communications concerning that offense will be obtained through the proposed interception 3. A belief that normal investigative procedures have been tried and failed or appear to be unlikely to succeed 4. A probable cause belief that the facilities to be subject are connected with the offense or the person named ii. If issued, the order must (pg. 369) 1. Identify the person whose communications are to be intercepted a. If the person is not known, he does not have to be identified 2. Identify the nature and location of facilities as to which authority to intercept is granted 3. Describe the type of communications sought to be intercepted and a statement of the particular offense to which it relates 91

4. Identify the person authorizing the application and the agency performing the interception 5. Provide that the authorization to intercept shall be executed as soon as practicable 6. Specify the period of time during which such interception shall automatically terminate 7. Provide that the interception be conducted in such a way as to minimize the interception of communications not subject to the Title III warrant 8. Require reports to be made to the judge who issued the order showing what progress has been made a. This is done at the discretion of the issuing judge f. Executive Order i. Generally 1. The interception should be recorded in a way t protect the recording from editing or alterations ii. Covert Entry 1. Entries onto private property to install and remove the eavesdropping device is permissible under the Fourth Amendment and permitted under Title III 2. Covert entry need not be authorized by the court, but can be carried out at the discretion of the officers 3. Dalia v. U.S. (1979)(pg. 370) iii. The Minimization Requirement 1. Minimizing the procurement of communications not otherwise subject to the interception 2. Factors (pg. 371) a. The percentage of the non-pertinent calls b. The length of the calls c. The ambiguity of the language used d. The type of use to which the telephone is normally put e. The scope of the investigation f. Whether the calls involve one or more of the co-conspirators g. The point during the authorized period that the interception was made 92

i. Less minimization required at the outset as officers establish the pattern of calls h. The investigators subjective attitude toward the minimization iv. Amendments (pg. 371) 1. If officers overhear conversations about offenses not named in the warrant, they may seize these conversations as well. Analogous to plain view 2. Title III requires that to be admissible in criminal proceedings, these communications must be forwarded to the court as soon as practicable and the court must find that the contents were otherwise properly intercepted g. Post-Interception Procedures (pg. 372) i. Sealing provisions to protect against the editing or alteration of interceptions ii. Within 90 days of the termination of the order, the issuing judge must have an inventory served on the persons named in the order or application 1. Exclusion is mandated if the inventory does not reach the relevant parties within 10 days of trail h. The Suppression Remedy i. Exclusion required when (pg. 373) 1. Communications not related to the offense are intercepted and not disclosed to the judge 2. Intercepted communications are not sealed 3. Inventory is not provided to parties named in the order 4. The communication is unlawfully intercepted 5. The order of authorization or approval is insufficient on its face 6. The interception was not made in conformity with the order of authorization or approval ii. General Scope 1. iii. The Central Role Test 1. Suppression is required only when the statutory provision which has been violated was intended to play a central role in the statutory scheme. 2. Not considered a central role to the statutory scheme 93

a. Accurate identification of the authorizing official b. All parties for whom the government has probable cause c. Sending of a post-surveillance inventory to persons whose communications have been intercepted but who were not named in the application or order 3. Can be predicted to be central a. Minimization requirement b. Violation of the 30 day limit iv. The Good Faith Exception 1. Even if exclusion is mandated under Title III, the government may be able to take advantage of a good faith exception 2. The government is not required to prove that a particular understanding of the law is correct, but rather only that its interpretation was objectively reasonable at the time 3. U.S. v. Ojeda Rios (199)(pg. 376) a. Prosecutor reasonably believed that when a tap is one of many in the same investigation, the tapes for the wiretap do not need to be sealed until the entire investigation is over b. This was an incorrect interpretation, but it was in good faith v. Standing 1. Fourth Amendment standing applies to Title III 2. Title III language, the aggrieved person is to be construed in accordance with Fourth Amendment standing rules. 3. Alderman v. U.S. (1969)(pg. 377) 4. Only those persons who can show that a search infringed upon their legitimate expectations of privacy may challenge the search a. Permits standing to the parties of an intercepted communication b. As well as to the owners of the premises on which the intercepted conversation took place, whether or not they were present at the time i. Criminal and Civil Remedies i. Criminal and civil remedies similar to those available for the Fourth Amendment

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ii. Intentional violations of Title II are punishable as criminal offenses and carry penalties of a fine of not more than $10,000 iii. Individuals who lawfully obtain information that was unlawfully recorded by another are not punished IV. Tracking Devices a. The device must infringe upon an expectation of privacy that society is willing to recognize as reasonable. U.S. v. Katz (concurring opinion adopted by the Court to determine whether a search invokes the Fourth Amendment at all) (1971) b. A person has no expectation of privacy as to the location of his vehicle when traveling on public thoroughfares because he knowing exposes that information i. A beeper device in a car was used to track the vehicle when officers lost visual sight of it ii. Using the beeper to track the vehicle was not a search because there was no infringement on the individuals expectation of privacy iii. U.S. v. Knotts (1983)(pg. 379) c. When a beeper device is placed inside an object and constitutes a seizure (which is separate from the subsequent search in which officers follow the vehicle based on the beeper) a warrant is required and need show i. The object to which the beeper is to be placed ii. The circumstances that led to the police to want to install the beeper iii. The length of time for which the beeper surveillance is requested d. If the beeper transmits information that is otherwise protected, an individual can have that information excluded in a trial against him if he can show standing i. Where a beeper revealed information about a home, the owner had standing to contest the evidence ii. Other individuals who did not live in the home did not have standing to contest the search and the evidence need not be excluded in a trial against them V. Video Surveillance a. Private Areas i. Several courts have held that Title II applies to video surveillance by analogy 1. U.S. v. Torres (7th Cir. 1984)(pg. 382) ii. Other courts hold that only that those aspects of Title III that are required by the Fourth Amendment apply to video surveillance iii. Given its heightened level of intrusiveness, some argue that video surveillance ought to be subject to greater restrictions than electronic eavesdropping 95

iv. In some instances, there is no alternative means for obtaining the information 1. People v. Teicher (1981)(pg. 383) 2. Dentist was suspected of sexually abusing patients b. Public Spaces i. What is exposed to the general public is not a subject of Fourth Amendment protections ii. Or Title III protections VI. Detection Devices a. The protection of a persons home has never been tied to a measurement of the quality or quantity of the information obtained b. Information is not exposed to police officers if the officers obtain the information with a device that is not in general public use. i. If a police device is not in general public use, then a person has no reason to take measures to maintain his privacy and prevent that information from being exposed ii. Kyllo v. U.S. (2001)(pg. 386) 1. Officers used a device that allowed officers to observe the thermal patterns of a home to detect whether the occupants were using lamps to grown marijuana. 2. Because the device that detected the thermal emissions was not in general public use, the occupants would reasonably believe that they had an expectation of privacy because they had no reason to know that police could obtain that information. c. Also, the officers must be at a lawful vantage point to utilize the device i. Dow Chemical v. U.S. (1986)(pg. 386) ii. Officers used a powerful camera to take pictures of a chemical plant from an airplane. 1. The airspace was navigable airspace and thus constitutes a lawful vantage point 2. Cameras are in general public use

Chapter 15The Fifth Amendments Privilege Against Self-Incrimination I. Generally a. Double Jeopardy 96

i. Jury Trial Attaches once the jury is seated ii. Bench Trial Attaches when the first witness is sworn in b. Fifth Amendment v. Fourth Amendment i. Before an individual is in custody, courts use the Fourth Amendment to determine whether a search or seizure is permissible 1. Purpose is to deter police misconduct ii. After an individual is in custody, the Fifth Amendment applies 1. Purpose is to promote and provide a fair trial c. A custodial determination is made to determine whether the accused was entitled to warnings regarding his Fifth Amendment rights i. Custody occurs when the individual is arrested ii. Possibly before then iii. Blurred line II. Compulsion a. Generally i. Determinations about whether an individual has waived his right against selfincrimination ii. A waiver must be voluntary and intelligent b. During questioning i. Defendants in custody 1. Custodial interrogation is inherently coercive 2. Miranda v. Arizona (1996)(pg. 393) 3. Two steps to ameliorate the presumption a. The suspect is told he has a right to remain silent b. The suspect voluntarily and intelligently waives that right ii. Trial witnesses 1. A witness at a trial is not entitled to warnings or to an assessment of whether any subsequent testimony is voluntarily and intelligent waiver 2. The mere act of speaking is a waiver of the right against selfincrimination 3. A witness at trial must expressly claim that right 97

4. Question has arisen whether a person intelligently waives a right if they dont know about that right 5. However, a witness knows that he will be a witness in advance, and has time to consult an attorney iii. Grand Jury Witness 1. Falls between a custodial interrogation and trial questioning a. Court failed to hold that a grand jury witness is entitled to Miranda warnings b. However, any subsequent use of grand jury testimony requires the state to show that the statements represented a voluntary and intelligent waiver of the Fifth Amendment i. If a witness is compelled to testify, this burden may not be met. 2. AR doesnt convene grand juries to support an indictment a. Uses a charging document called an information that is filed by the prosecutor iv. The Fair Examination Rule 1. If the accused testifies to incriminating information, the government is permitted to compel answer to questions asking for explication of that information on a waiver theory. Brown v. U.S. (1958)(pg. 396) a. Some courts construe Brown broadly to stand for the proposition that once the accused testifies concerning an offense for which he is on trial, he forfeits the privilege to all facts relevant to that offense, even if they were not mentioned on direct examination b. Other courts hold that cross examination by the government is limited to the scope of the direct examination 2. If the person testifying is not the accused, admission of an incriminating fact constitutes a waiver of the Fifth Amendment protection with respect to the details surrounding that admission. Rogers v. U.S. (1951)(pg. 397) v. The Continuing Waiver Theory 1. If a witness does waive the Fifth Amendment by testifying, that waiver is applicable only throughout that proceeding. 2. Some courts hold that waiving the Fifth Amendment right in a grand jury also operates as a waiver at the subsequent criminal trial Chapter 11Stop & Frisk 98

X. Generally a. Has a seizure occurred? b. If so, was there reasonable suspicion for the officer to seize the individual or effect? XI. Terry Stop a. Scenario when reasonable suspicion justifies a seizure i. A police officer may, in appropriate circumstances and in an appropriate manner, approach a person for the purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. (pg. 254) b. Justification for the stop i. In light of his experience ii. An officer observes unusual conduct which leads him to reasonably believe iii. Criminal activity may be afoot iv. And that persons may be armed and presently dangerous v. He is entitled, for protection, to conduct a limited search vi. Of the outer clothing of such persons vii. In an attempt to recover weapons. viii. Such search is reasonable under the Fourth Amendment. c. Legality of the stop i. As long as the action was justified at its inception, and ii. Was reasonably related in scope to the circumstances which justified the interference in the first place. (this language is later used in the TLO case of searches in schools) d. Terry raised four distinct issues i. The definition of stop ii. The justification for a stop and lesser seizures iii. The justification for a frisk iv. The scope of a frisk XII.The definition of Seizures and stops a. Of the person i. Consensual encounters are not seizures ii. U.S. v. Mendenhall 99

1. A person is seized When a reasonable person would have believed that he was not free to leave. 2. Factors a. Threatening presence of the police officers b. Number of the police officers c. The display of a weapon by an officer d. Physical touching of the person e. Use of language or tone of voice indicating that compliance is compelled iii. During a car stop 1. The passenger in a car is seized 2. Brendlin v. California (pg. 257)

iv. At Work 1. No seizure occurs if police question an individual for a few moments at work. 2. Employees freedom is already somewhat restricted by the demands of their workplace 3. Questioning is not a seizure if it does not prevent the employees from pursuing their ordinary business. 4. INS v. Delgado (1984)(pg. 257) v. Pursuit on Foot 1. A mere show of authority, absent physical contact or submission to that authority is not a seizure 2. California v. Hodari D. (1991)(pg. 259) vi. Pursuit by Vehicle 1. Police accelerated and drove the vehicle parallel to a running individual to see where he was going. 2. Police did not activate a sire or flashers, command the defendant to halt, display any weapons, or operate the vehicle to block the defendants course. 3. The defendant could reasonably have believed that he was free to disregard the police presence. (Mendenhall test) 4. Michigan v. Chesternut (1988)(pg. 258) 100

vii. On a Bus 1. Majority a. Whether a reasonable person is not at liberty to ignore the police b. Police must ask to carry out their action, which suggests the absence of an entitlement c. Bus passengers were allowed to leave the bus for snacks and other items during the interdiction process d. Bus passengers cooperate not because of coercion, but because they know that it enhances their own safety. 2. Dissent a. Interdiction is not a consensual exercise b. Police would prefer cooperation, but would not let the lack of it stand in their way 3. My thoughts a. Seems to be a lot like police conduct at a place of employment. b. The desire to leave the immediate area is limited by other means (work or the imminent departure of the bus). c. Police questioning does not prevent the individual from what they were already doing. d. In these scenarios, the Court considers whether a reasonable person was at liberty to ignore the police and not whether they were free to leave. b. Of Effects i. Under Terry balancing test, some brief detentions of personal effects may be so minimally intrusive of Fourth Amendment interests that strong countervailing governmental interests will justify a seizure. ii. Court makes determination on the totality of the circumstances whether officers have seized an effect. 1. 90 minute detention of luggage at the airport was held unconstitutional because of its duration and failure to accurate inform the respondent about how he would retrieve his luggage. (U.S. v. Place (1983) (pg. 261)). 2. Post office detention of two packages of coins for 29 hours was not a seizure because no Fourth Amendment interest was invaded.

101

a. The warrantless police action did not invade either the defendants privacy interest in the content of the packages or any possessory interest b. U.S. v. Van Leeuwen (1970)(pg. 262) 3. My thoughts a. Van Leeuwen was not a search because the defendant had not yet possessed the item and because a 29 hour retention did not affect him like detention of a suitcase would inconvenience an individual on a trip. b. However, what if Van Leeuwen had mailed the coins to himself? c. What if the reception of those coins was time sensitive to conduct a business transaction? Would there not be a deprivation of possessory interest in those situations similar to that of U.S. v. Place? XIII. Permissible Grounds for Seizures and Stops a. Reasonable Suspicion i. Based on a totality of the circumstances and to defer to an officers expertise (U.S. v. Cortez (1981)(pg. 267); U.S. v. Arvizu (2002)(pg. 268)). ii. Elements (pg. 262) 1. Specific and articulable facts 2. That lead the officer to believe that criminal activity is afoot 3. Which may not be based upon an inchoate or unparticularized suspicion or hunch 4. Must be grounded on facts that, in light of the officers experience, 5. Support specific reasonable inferences 6. That justify the intrusion. iii. Defining a level of suspicion 1. Less than probable cause 2. The level will vary, depending upon a. The level of intrusion, on the one hand b. The states interest on the other iv. Scenarios 1. Brignoni-Ponce (1975)(pg. 263) 102

a. Random stops of vehicles near (not at) the border to check for illegal immigrants when there is no indication that the vehicle is transporting illegal immigrants is unconstitutional b. Factors that patrol officers could consider i. Characteristics of the area where the vehicle is found and its proximity to the border ii. Information about recent illegal border crossings in the area iii. The drivers behavior iv. Aspects of the vehicle itself v. And the appearance of the vehicles occupants 2. Delaware v. Prouse (1979) (pg. 264) a. Court held inadmissible marijuana found by police on the floor of a car when he had stopped it in order to check the drivers license and the registration of the vehicle. b. The initial stop was not prompted by suspicious behavior c. No indication at the time of the initial stop that either the license or the registration was invalid 3. Brown v. Texas (1979) (pg. 264) a. A stop based on an observation of an individual or situation that looks suspicious is not a valid stop because there is no activity that creates suspicion of a specific misconduct. v. Unprovoked flight after noticing the presence of police officers may give rise to a reasonable suspicion (in an area known for heavy drug trafficking) 1. Flight is an act of evasion, not merely a failure to cooperate 2. Illinois v. Wardlow (2000) (pg. 267) b. Seizures on Less Than Probable Cause i. Roadblocks 1. At the Border a. The initial stop and any secondary inspection are considered seizures b. The state and individual interest involved are different from those implicated in the typical stop and frisk situation

103

c. Officials, rather than officers in the field, establish the location of the checkpoint and their decisions can be easily reviewed d. A fixed checkpoint minimizes potential interference with legitimate traffic and provides visible manifestations of the field officers authority e. U.S. v. Martinez-Fuerte (1976)(pg. 268) 2. Sobriety Checkpoints a. The magnitude of the drunk driving crisis combined with minimal intrusion justifies its use b. Michigan Dept. of State Police v. Sitz (1990)(pg. 269) 3. Other Criminal Conduct a. Roadblocks established primarily to uncover evidence of ordinary criminal wrongdoing are not permissible. b. The subjective intent behind police search and seizures is irrelevant only when the police clearly have an objectively legitimate reason for stopping the individual in the first intance c. Indianapolis v. Edmond (2000)(pg. 270) ii. Seizures of Car Occupants 1. Exiting the Vehicle a. Once a car is lawfully stopped, an officer may permissibly request the driver to exit the vehicle without reasonable suspicion. b. The driver is being asked to expose very little more of his person than is already exposed c. Officers incur an inordinate risk when he approaches a person seated in an automobile d. Pennsylvania v. Mimms (1977)(pg. 272) e. This applies to passengers as well i. Maryland v. Wilson (1997)(pg. 273) 2. After the warning or citation has been issued a. So long as there is probable cause authorizing a citation (i.e. speeding) the offers subjective reasons for detaining an individual are irrelevant b. After the officer issued a traffic citation, he handed back the license and asked one question before you get gone. The driver consented to a search for drugs. The defendant argued that once 104

the ticket was issued, the officer had no grounds to detain him any longer. c. Ohio v. Robinette (1996)(pg. 272) iii. Regulatory Inspections 1. When the government can show that significant harm may result from substance abuse, the difficulty of otherwise detecting or deterring that harm permits government investigation with a particularized suspicion (pg. 273) 2. See Ch. 13. iv. Stops for Loitering 1. All statutes that authorize the police to stop or arrest suspicious-looking individuals or persons considered disreputable on grounds short of an articulable suspicion that criminal activity is afoot have been held unconstitutional 2. They have been held unconstitutional on the grounds of vagueness and that they give unfettered discretion to field officers 3. Pg. 274 c. Permissible Sources of Information i. Informants 1. When using reasonable suspicion as the basis of a seizure, the Court relaxes the Aguilar-Spinelli requirements more so then when it uses its analysis for a probable cause arrest. ii. Police Flyers 1. Police are entitled to rely on notices and wanted flyers from other jurisdictions in stopping individuals 2. So long as the jurisdiction which issued the flyer had specific and articulable facts to suspect the individual 3. Of past or present criminal activity 4. At the time that the flyer was issued 5. And the stop is not significantly more intrusive than would have been permitted by the issuing department 6. U.S. v. Hensley (1985)(pg. 278) iii. Profiles and Plans 1. Types of generalized suspicion 105

2. The Court has been cautious about authorizing profiles 3. Plans fall under the health and safety inspections or INS v. Delgado in which officers had a warrant to investigate a factory that possibly employed illegal aliens a. Health and safety inspections do not offer an articulable suspicion about a violation of a specific home, just that the homes in an area might have code violations b. Suspicions in Delgado were not about a specific person, but about the employees at a factory 4. See Ch. 13 d. Types of Crimes i. Using the Terry balancing test, the Court seems to utilize a scale of suspicion and seriousness of the crime. The more serious the crime investigated, the less specific and articulable the suspicion needs to be to effectuate a seizure. Adams v. Williams (1972)(pg. 279) ii. Also on the scale, the officer might be able to consider whether an investigation might be hindered or a suspect is allowed to flee if the seizure does not occur. U.S. v. Hensley (1985)(pg. 279) XIV. Permissible Grounds for a Frisk a. A valid stop does not always justify a frisk b. A frisk is permissible when the officer holds a reasonable suspicion that the person stopped is armed and dangerous. It is not meant to assist police in gathering evidence. c. A frisk requires an individualized suspicion. It cannot be done to generally secure an area, but must be done with a reasonable belief that the individual is armed. (applies when the officer frisks an individual who is not yet under arrest because those persons may be searched incident to an arrest.) i. Ybarra v. Illinois (1979)(pg. 281) ii. Officers secured a bar and frisk the patrons, who were not the target of the investigation. d. Before a frisk takes place i. The officer must identify himself as a policeman ii. And make reasonable inquiries 1. The persons name 2. What the person is up to 106

iii. However, an officer need not make reasonable inquiries and may effectuate a frisk or seizure of an effect in light of the defendants apparent unwillingness to cooperate XV. Scope of a Frisk a. Elements i. The officer may undertake a carefully limited search of the outer clothing ii. In an attempt to discover weapons iii. Which may be used to assault him b. Danger defines the scope of the intrusion c. Other Contraband i. The Plain Feel doctrine ii. Even if the officer feels only contraband 1. He may remove it from the suspects pocket 2. So long as at the time he initially feels it 3. He has probable cause to believe that it is contraband iii. This rule flowed from the plain view doctrine 1. Which permits seizure of evidence 2. In plain view 3. From a place that the officer has validly 4. Intruded upon a. As opposed to when the officer observes evidence from a public place of which there is no intrusion upon anyones property or rights (lawful or public vantage doctrine) iv. Does not allow an officer to manipulate a package beyond the scope of a valid weapons frisk v. Problems 1. An officers touch is not as reliable as his vision 2. What an officer can see can be independently reviewed where as what he thinks he felt relies on the officers honesty and accuracy of his tactile skills 3. This doctrine expands Terry beyond weapons and officer protection d. Expansion of the Scope of the Frisk 107

i. Police may search any area from which the person stopped might be able to obtain a weapon. Michigan v. Long (1983)(pg. 283) ii. Limits the search to those areas to which the individual would generally have immediate control and that could contain a weapon 1. Is more expansive than to the areas in which the individual does actually have control over 2. Court upheld the search of a vehicle of which police noticed a legal hunting knife on the floorboard 3. Even though the defendant was already outside of the vehicle and arrested XVI. Stop and Frisk in Lower Courts a. In determining whether a confrontation is a seizure, lower court have focused on the degree of coercion present i. Consider tone and content b. No seizure occurs merely because an officer confronts a citizen and asks questions c. Questions that the lower courts consider i. The permissible duration of a stop depending upon the reasonableness of an officers attempts to reduce delay ii. Permissible grounds for seizures and stops 1. Some courts require rather specific facts 2. While others find adequate cause to effectuate a stop with reasonable suspicion when the facts are less determinative of criminal activity d. Generally courts routinely consider the i. Evasiveness of the defendant ii. The incongruity of the defendant given the surroundings 1. Looking in a store window at 2am iii. The nature of the location 1. High crime or drug area e. Most courts recognize that these factors are consistent with innocent behavior as well as guilty behavior, but uphold a reasonable suspicion when two of the three factors are met. XVII. The American Law Institute Formula a. Pg. 292 108

b. Requires police to inform persons of their rights as promptly as is reasonable under the circumstances XVIII. Conclusion a. Whether there has been a Seizure i. Duration of the dentition ii. Whether police actions were threatening iii. Whether the person detained was physically touched iv. Whether the detention took place in an enclosed area as opposed to a public one v. Clearly coercive gestures or tones vi. Whether a reasonable person would feel free to decline police requests b. Seizure based on a Reasonable suspicionGenerally, a person may be seized when i. Terry Stop 1. The officer observes the person engage in unusual conduct 2. Leading to a reasonable suspicion that a criminal activity has occurred, is occurring, or is about to occur, and 3. The officer can point to specific and articulable facts to warrant the suspicion ii. The officer receives information from an informant having some indicia of reliability (but not that required for probable cause iii. The officer receives communication from another police department that the person is believed to have engaged in criminal activity. c. Seizures based on less than reasonable suspicionor no suspicion i. Roadblocks in which there is a compelling state interest (dui, but not for drugs) ii. No reasonable suspicion is required to justify requests to disembark from a car following a legal stop iii. Orders to disperse pursuant to valid anti-loitering statutes (though the Court has yet to uphold such a statute) iv. If a stop is authorized on reasonable suspicion or less, reasonable inquiries designed to test the suspicion should be made. d. Frisks i. If authorized, it may include: 1. A pat down of the outer clothing 109

2. A search of the area immediately surrounding the person 3. Objects that do not initially feel like weapons may not be manipulated to determine their nature. Chapter 12Consent Searches VI. Generally a. A valid consent eliminates both the warrant and the suspicion requirements for searches b. Does not apply to cases involving undercover officers, which beg the question whether the Fourth Amendment applies at all c. Issues i. Whether the consent is voluntary ii. Whether the search conforms to the consent given iii. Whether the consentor had authority to give consent in the area searched VII.The Voluntariness Requirement a. Whether consent is voluntarily is based on a totality of the circumstances. Schneckloth v. Bustamonte (1973)(pg. 299) b. Knowledge of the right i. A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst (1938)(pg. 300) ii. Knowledge of the right to refuse consent is only one of the circumstances to be considered in the totality of the circumstances analysis iii. The prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent 1. It would be difficult to prove awareness 2. It would be impractical to inform a defendant of all of his rights at the moment that he is taken into custody given external factors such as time and danger 3. A waiver (which is an intentionally relinquishment of a right) applies only to those rights guaranteed to a criminal defendant to insure a fair criminal trial a. And thus does not extend to the protections of the Fourth Amendment b. Which are of a wholly different order, and have nothing whatever to do with promoting the fair ascertainment of truth at a criminal trial. 110

c. Custody i. An arrested person may be under more duress than one who is not ii. However, it is not always dispositive 1. An arrest on a public street followed by a request to search the defendants vehicle was considered valid consent. U.S. v. Watson (1976)(pg. 302) 2. Consent to search a room at a business after the individual was arrested was considered valid a. The public character of the property b. The fact that demand was made during business hours c. The nature of the request d. The fact that the initial refusal was soon followed by acquiescence e. The existence of the right to inspect f. Davis v. U.S. (1946)(pg. 302) iii. Miranda relies on the assumption that an arrest is inherently coercive and requires warnings about the right to remain silent d. Force, Show of Force, and Threats i. Consent is not valid if coerced, by explicit or implicit means, by implied threat or covert force. Schneckloth v. Bustamonte (1973)(pg.303) ii. Coercion exists when the police, lacking the requisite warrant or suspicion, announce they are going to search. Johnson v. U.S. (1948)(pg. 303) 1. When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search 2. Court found invalid the consent of the defendants grandmother, a 66 yearold black widow (in 1968), to a search of her house after four white police officers appeared at her door and announced they had a search warrant. 3. Bumper v. North Carolina (1968)(pg. 304) 4. The officers show of authority coerced the consent iii. U.S. v. Mendenhall (1980)(pg. 304) 1. All searches were considered voluntarily 2. Defendant was a 22 year old black female approached by white, male officers 111

3. She was approached at an airport because her behavior suggested to the officers that she might be carrying narcotics 4. The officers approached her and identified themselves 5. When their suspicions were further aroused from a few questions, the officers asked her to accompany them to an office for further questioning 6. She was asked if they could search her handbag, a. She was told that she could deny this request, but she consented b. another plane ticket in another name was found 7. A female officer asked to search the defendant further, and she consented a. After partially disrobing, the defendant handed over two packages of heroin iv. Under surprise, confusion, and flight, consent was involuntary. U.S. v. Whitlock (6th Cir. 1977)(pg. 305) v. Consent that is the product of verbal threats (of fines, jail time, or destruction of property) are involuntary (pg. 305306) e. Personal Characteristics i. Factors considered in the totality of the circumstances 1. Schooling 2. Intelligence 3. Age 4. Illiteracy 5. Substance abuse 6. Emotional state 7. English language proficiency ii. The confession of a mentally ill individual is voluntary so long as police do not recognize and exploit the illness in their attempts to obtain information 1. Flows from the premise that the Constitution is meant to impose constraints on the police, not to protect individual rights in situations where the police could not have been deterred by a constitutional ruling. VIII. The Scope of a Consent Search a. The scope of a search conducted pursuant to a consent is governed by the nature of the consent 112

i. Any articles within the consented area may be examined if it is objectively reasonable for the officer to believe that the scope of the persons consent permits him to do so 1. If the individual consented to a search for stolen t.v.s, an officer may not search a small brown bag because it is not reasonable to believe that the t.v. was there or that the consent extended to that item. ii. Items in Plain View during a consent search may be seized b. Withdrawal or Limitation of the search i. Can be done at any time during the search. (ALI) (pg. 308) ii. Constructive Withdrawal 1. Consent to search an area is not indefinite 2. State v. Brochu (1984)(pg. 308) a. Man consented to a search of his home for evidence concerning his wifes murder. b. He was subsequently arrested for that crime c. A search of his home the next day was not authorized by the initial consent d. When the role of the defendant changed from assisting husband to arrested suspect, his consent was constructively withdrawn c. When officers obtain probable cause after the initial consent, a party may still withdraw consent, however officers have an independent reason to justify their search. IX. Third Party Consent a. Post-Katz reasonable expectation of privacy analysis. Katz was decided in 1971 b. Court does not consider whether the third party has a property interest, but rather whether the third party has a common authority or other sufficient relationship to the premises or property or effects sought to be inspected. i. Mutual use of the property by persons generally having joint access or control ii. Discards the property based view of third party consents iii. U.S. v. Matlock (1974)(pg. 310) c. When an area is shared by more than one person, more than one person may consent to its search d. Common Authority i. Landlord 113

1. Chapman v. U.S. 1961 (pg. 310) 2. Court held invalid a consent by a landlord of a tenants home despite the claim that the renters contract allowed the landlord to view the premises if it was wasted and used for criminal purposes 3. The court was unable to find any state or common law that gave the landlord the right to forcibly enter the premise without consent and without an express covenant to do so. ii. Hotel 1. Stoner v. California (1964)(pg. 310) 2. Consent by a hotel clerk was found insufficient because a guest can surrender his Fourth Amendment right only directly or through an agent a. Can a cleaning person allow officers in if during the course of cleaning the room iii. Roommate 1. A roommate may permit common areas to be searched 2. A roommate cannot permit a search of anothers room if there is no control over that room. a. Cain always talks about how a mother cannot consent to a search of her daughters room, in the mothers home, if the mother does not consistently have access to the room b. My thoughts i. If the roommate never goes into your room without permission, then the search is invalid because the roommate could not consent to the search ii. If the roommate does have authority to consent, then it means that he has some control over the area, and I would argue that any incriminating evidence found (drugs) could belong to the roommate. e. Apparent Authority i. Whether the facts available to the officer warranted a man of reasonable caution in the belief that the consenting party had authority over the premise. 1. Does not require that factual determinations made by magistrates or police be correct, but that they be reasonable ii. Illinois v. Rodriguez (1990)(pg. 311) 1. Court adopted apparent authority 114

2. When police arrived at defendants apartment to search it, an exgirlfriend let the officers in the home (police did not know that she was an ex-girlfriend with no rights to the house) 3. She let the officers in with a key 4. She referred to the apartment as our apartment 5. She said that she had clothes and furniture in the apartment 6. Court held that she did not have actual authority, but had apparent authority iii. Justice Marshall dissents 1. When police fail to get a warrant, instead of relying on the consent of the third party, the police rather than the defendant should accept the risk of error f. Defendant present i. When the defendant is present and refuses consent over it does not matter that a third party with actual authority is consenting, an officer does not have consent to search the house ii. When one party objects, officers do not have authority to search by consent 1. When one party consents and the other is asleep, there is no objection by the sleeping party and officers have authority to search the premises. a. Until the other party awakes and objects because the scope of the search is limited in that it can be terminated at any point. iii. Georgia v. Randolph (2006)(pg. 312) iv. Dissent 1. Urged that various fact patterns could yield vastly different expectations about whether an officer should enter the home with consent of one resident and an objection by the other resident 2. Fear of retribution by the non-consenting owner against the consenting owner 3. However, officers would be able to intervene where there are exigent circumstances X. Conclusion a. In order for a consent to be valid, it must be voluntary under the totality of the circumstances b. Factors i. Whether the consenter knew of his right to refuse the search 115

ii. Whether the consentor was in custody at the time of consent iii. Whether police claimed to have authority to conduct a search iv. The extent to which the consentor finds it particularly difficult to resist police suggestions c. The scope of the consent search can be limited by the consentor to specific areas or types of items d. Theoretically, a consent may be terminated at any time e. A voluntarily consent of a person who shares authority over an area can is valid for a search i. Agency laws of actual, implied, and apparent authority apply here f. However, if the defendant is present and refuses consent, a search is not valid

Chapter 13Regulatory Inspections and Searches XI. Camera Factors a. The difficulty of detecting the harm caused by regulatory violations if a warrant and probably cause are required b. The likelihood that regulatory officials will experience difficulty mastering the warrant procedure c. The disruption a warrant and probable cause requirement will cause to the smooth operation of the government XII.Inspections of Homes a. Generalized suspicion b. Probable cause to obtain a warrant is sufficient when the area, as a whole, needs inspection i. Factors 1. Age of the buildings 2. Passage of time 3. Other conditions ii. Probable cause for individualized homes would not allow inspectors to efficiently detect difficult violations (such as faulty wiring). iii. An inspection, in this context, is a relatively limited invasion c. Welfare visitations are not searches under the Fourteenth Amendment 116

i. Fourth Amendment does not apply when the search cannot result in criminal sanctions (such as in welfare cases)(pg. 318) XIII. Inspections of Businesses a. Key Issue i. The comprehensiveness of the regulatory scheme. Pg. 321 b. Notes about the following TEST i. The duration of regulation is considered a factor to determine whether an industry is in fact closely regulated, but it is not dispositive. (pg. 321) ii. The additional criteria of the test used to be encompassed in one element: that the industry in question must be pervasively regulated so that an owner is put on notice. 1. However, the Court held that a finding that an industry is pervasively regulated is not enough to justify warrantless business inspections. 2. Thus the court imposed three additional criteria in place of the pervasiveness element. c. Test i. The violation sought to be discovered must be of the type that are easily hidden (as opposed to easily correctable) ii. Must apply to a specific industry 1. OSHA warrantless inspections were not constitutional a. Pg. 320 b. Marshall v. Barlow (1978) iii. The industry must be closely regulated Dewey Criteria 1. The government must have a substantial interest in the activity being regulated 2. Warrantless searches must be necessary to the effective enforcement of the law 3. The inspection program must provide a constitutionally adequate substitute for a warrant. a. Does the statute provide adequate notice b. For Example: Does the statute i. Require inspection of all businesses within the industry ii. Define the frequency of inspection 117

iii. Provide precise standards with which to comply iv. Establishe a specific mechanism for accommodating special privacy concerns d. Law i. Unauthorized force is not allowed ii. In some cases, as in Dewey, inspectors may have to obtain some sort of judicial authorization to override a refusal when doing so will not frustrate the objective of the inspection process 1. Example: Health and Safety inspections 2. The delay occasioned by seeking such authorization after a refusal will often lead to correction of the deficiencies the government wants corrected. XIV. Fire Inspections a. No Warrant i. During the fire ii. Immediately after the fire for the purpose of determining its origins iii. An inspection conducted within a reasonable time after the fire 1. However, the inspection must be preceded by notice a. On the owner? Manager? Employee? b. Administrative Warrant i. Once the exigency produced by the fire has ended ii. A fire search is necessarily responsive to an individualized event 1. A more particularized inquiry may be necessary to justify the warrant to search a fire scene than for a normal business investigation iii. Factors to consider when determining whether an administrative warrant is required Book doesnt tell which way each factor cuts (though some are obvious) 1. The number of prior entries 2. The scope of the search 3. The time of day when it is proposed to be made 4. The time lapse since the fire 5. The continued use of the building 118

6. The owners efforts to secure the building against intruders c. Traditional Warrant and particularized suspicions i. When suspicion develops as to a criminal motive 1. I assume that this means a criminal motive of arson by the owner of a building or the owner of a business in the building or an agent of either. Because any other defendant would not have standing to challenge the search, so a warrant would not be required. XV. Border Inspections a. General i. Camera Balance Test 1. National self-protection permits the government to require one entering the country to identify himself as entitled to come in. 2. At the border, the governments interest is at its Zenith ii. This section applies to government authority at the border. This means at check points that are literally at the border or international airports in order to control movement into and out of the country. b. Routine Searches i. Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion 1. Ones expectation of privacy is less at the border than the interior 2. The Fourth Amendment balance between the interests of the government and the individual is more favorable to the Government at the border a. The invasiveness of routine searches at the border is said to be minimal because people expect and understand the need for searches ii. Neither a warrant or individualized suspicion is needed for routine border searches and seizures c. Non-routine Searches i. Searches and seizures can be based on reasonable suspicion alone ii. Lower courts 1. Have permitted rectal examinations and other body cavity searches on less than probable cause 2. Strip searches have also been permitted on reasonable suspicion. 119

iii. International Mail 1. Federal law authorizes inspection of international mail whenever there is reasonable suspicion to suspect that the mail contains illegally imported merchandise. 2. However, the federal regulations prohibit reading correspondence without a warrant. XVI. Checkpoints a. United States v. Martinez-Fuerte (1976) b. Illegal Immigrants i. Roadblocks at the border are constitutional for the purposes of detecting and deterring the flow of illegal immigrants into the country 1. No warrant, probable cause, nor reasonable individualized suspicion is required. ii. Camera type balance test 1. The degree of intrusion for the purposes of questioning the occupants about their residence is minimal. 2. Notice provided by a warrant is unnecessary given the visible manifestations of the officers authority at the checkpoint 3. The validity of the checkpoint is easily reviewed (???) (pg. 329) 4. ** Most importantly ** the location of the roadblock was not established by officers in the field, but by officials responsible for making overall decisions. 5. The traffic flow is too heavy to allow particularized study of vehicles 6. A suspicion requirement would neutralize the deterrent which fixed checkpoints present. c. Sobriety Checkpoints i. Michigan Dept. of State Police v. Sitz (1990) ii. General Law 1. Sobriety checkpoints are upheld for the purposes of detecting drunk driving 2. In response to suggesting that there are less intrusive means for accomplishing detection of drunk driving, the court responded by stating: a. The choice among reasonable alternatives remains with the governmental officials who have a unique understanding of, and a 120

responsibility for, limited public resources, including a finite number of police officers. d. License and Safety Checks i. Delaware v. Prouse (1979) ii. General Law 1. Random stops of individuals (as opposed to checkpoints) are not permissible as a means of checking licenses. a. Must have a reasonable suspicion that traffic laws are being violated. 2. However, checkpoints, which involve less intrusion, are permissible for the purposes of checking driver and vehicle documents (ex: truck driver weigh stations). 3. Questioning all traffic or using a specified patter (questioning 1 in 10 drivers) are both permissible. (pg. 331). iii. Road block evasion 1. Some courts have held that turning around prior to a roadblock provides reasonable suspicion of involvement in some sort of illegality. a. Case cited for this proposition is Coffman v. Arkansas (1998). b. *** How does this correlate to the Arkansas Supreme Court interpretation that an individual must be suspected of a particular crime in order to be stopped pursuant to Rule 3.1 of the ARCP? 2. Other courts have emphasized that the mere act of avoiding contact with the police should not create an articulable suspicion of criminal activity. e. Boat Inspections i. United States v. Villamonte-Marques (1983) ii. General 1. Random boat inspections (individually, not at a checkpoint) are permissible. 2. They are analogized to border searches, at least when the waterways have ready access to the sea. XVII. Inventories a. Of Vehicles

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i. Assuming that probable cause to search does not exist at the time of impoundment, warrantless inventories of cars cannot be justified under the automobile exception ii. Warrantless inventories are permissible on regulatory grounds 1. South Dakota v. Opperman (1976)(pg. 333) iii. Inventory searches are permissible provided that they are 1. Pursuant to a lawful impoundment 2. Of a routine nature 3. Are not a mere pretext concealing an investigatory police motive iv. The justification for allowing inventory searches 1. Avoiding harm to the police 2. Avoiding false claims of theft 3. Preventing vandalism of property v. Expansion of the Scope 1. Containers found in the course of an inventory search may be searched. Colorado v. Bertine (1987)(pg. 334) 2. The ability to conduct an inventory does not diminish as the security of the facility is increased 3. Police need not allow owners of vehicles to make alternate arrangements to avoid the inventory search vi. The scope of the inventory search is limited to those areas where valuables might normally be kept 1. Police are not authorized to search in the air vents, the gas tank, in between panels under the authority of an inventory search 2. However, an inventory search may lead to probable cause to search obscure areas of the vehicle 3. Michigan v. Thomas (1982)(pg. 335) vii. An inventory search can take place well after the original impoundment viii. For a recap, read the first full paragraph on pg. 336 b. Of Persons i. The justification of such searches does not rest on probable cause and hence the absence of a warrant is immaterial to the reasonableness of the search. 1. Illinois v. Lafayette (1983)(pg. 336) 122

2. Police searched a shoulder bag subsequent to an arrest of the individual and found amphetamine pills 3. Officers need not make fine and subtle distinctions in deciding which containers or items may be searched and which must be sealed as a unit XVIII. School and Workplace Searches a. Generally i. Public school officials are government officials for the purposes of the Fourth Amendment ii. Schoolchildren are entitled to some protection under the amendment b. A warrant or probable cause is not required to effectuate a search in a school setting i. Would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools 1. Similar to Camera (health and safety inspections, see pg. 13) ii. Would be unduly burdensome in light of the substantial need to maintain order in the schools iii. New Jersey v. T.L.O. (1985)(pg. 337) 1. Teacher found 14 year old student smoking in the high schools bathroom 2. Vice principal looked through her purse 3. Found a package of cigarettes and rolling papers 4. Searched more carefully and found marijuana c. Reasonableness Analysis i. Used the Terry test 1. Whether the action was justified at its inception 2. Whether the search was reasonably related in scope to the circumstances which justified the interference in the first place d. Special Needs i. Justice Blackmuns concurrence in T.L.O. ii. Only in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable, is a court entitled to substitute its balancing of interests for that of the Framers e. Workplace 123

i. Neither a warrant nor probable cause is required to justify a search of a government employees office ii. when the search is a non-investigatory work-related intrusion iii. or a search for evidence of employee misfeasance iv. and not for a criminal investigation XIX. Testing for Drug and Alcohol Use a. Regulations which permit drug and alcohol use are permitted in the absence of any individualized suspicion b. An individuals privacy right is often significantly diminished by the demands of the workplace c. Constitutionality of such programs depend in large part on 4 factors i. The extent to which the type of employee to be tested is subject to privacy intrusions as a routine aspect of the job ii. The extent to which the job involves potential harm to the public or is otherwise deemed sensitive (government interest) 1. Must be concrete danger. 2. Court struck down a drug testing policy that applies to every person seeking nomination or election to a state office. Chandler v. Miller (1997)(pg. 346) iii. The extent to which the drug or alcohol use can be deterred by a testing program iv. The extent to which discretion is given to those charged with administering the program (the less discretion that the administering agent has, the more likely that it will be deemed constitutional) d. Testing in schools i. Upheld a drug testing program aimed at students involved in any extracurricular activity ii. Justification 1. Generally leads to school discipline sanctions, not criminal sanctions 2. Lesser expectation of privacy in a school setting iii. Evolved from cases that upheld random drug testing directed at students who wanted to participate in school athletic programs. Veronia School District v. Acton (1995)(pg. 344) e. Other factors 124

i. There needs to be a clear understanding of the purpose and scope of the tests ii. The purpose of the test should not be for criminal investigation, but to determine fitness for a particular activity. Law enforcement should not be involved in the inception and implementation of a special needs drug test iii. Ferguson v. City of Charleston (2001)(pg. 347) 1. Nurses were testing pregnant women for drugs and turning over positive results to law enforcement officers 2. Officers were involved in the inception of the program XX. Probation and Parole Supervision a. Special Needs situation i. In light of the rehabilitative and preventive goals of probation, probation supervision is a special need of the state ii. A warrant requirement would interfere with the probation officers ability to respond quickly to evidence of misconduct iii. Probation officer is not in an adverse position from the probationer or parolee, but is suppose to have in mind the welfare of the individual b. Probationers and parolees have a diminished expectation of privacy, even in their own home i. Giffin v. Wisconsin (1987)(pg. 348). Probation officer didnt even have a reasonable suspicion, but his search was upheld by the court ii. Fourth Amendment permits law enforcement officer or probation officers to search the home of a parolee or probationer without a reasonable suspicion iii. Samson v. California (2006)(pg. 349)

Chapter 14Technological Surveillance VII. Generally VIII. Regulation of Communications Surveillance Prior to Title III a. The trespass Doctrine i. In order to constitute an infringement on an individuals rights, the officers had to physically trespass or seize a tangible item protected by the constitution ii. Olmstead v. U.S. (1928)(pg. 355) (overturned by Katz) b. The Federal Communications Act

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i. No person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, purport, effect or meaning of such intercepted communications to any person ii. If a party to the conversation allowed the eavesdropping, the act was not triggered iii. Applied to public and private entities iv. Violations were found to require exclusion in state prosecutions. Mapp v. Ohio (1961)(pg. 356) c. Katz and Expectation of Privacy Analysis i. Overturned Olmstead ii. Rejected the trespass doctrine iii. One assumes the risk that ones acquaintances will be government agents d. The Fourth Amendment Warrant Requirement i. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 was passed as a minimum requirement to eavesdropping orders. ii. States may apply protections more stringent than Title III, but if a state provides less stringent standards, officers must abide by the requirements of Title III IX. Federal Eavesdropping Law: Title III (pg. 358) a. Two Amendments i. 1986 ii. 2001 b. The Scope of Title III i. General 1. 1986 Amendment no longer requires a Title ** warrant for information in electronic storage a. A regular warrant is required for information less than 180 days old b. Subpoena is required for info in storage over 180 days 2. 2001 Amendment allows for an ex parte subpoena to obtain basic subscriber information a. Name, address, session times and durations, length and type of service, means and source of payment, identity of users who use a pseudonym 126

b. To obtain additional information, officers must allege specific and articulable facts relevant to an ongoing investigation 3. Provides protections where the Fourth Amendment does not ii. Types of communications protected 1. Wire Communications a. Includes the radio portion of cordless telephone that is transmitted between the cordless handset and the base unit b. This could be analogized to wireless internet 2. Oral Communications 3. Electronic Communications iii. The definition of Interception 1. the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device. 2. A pen register, which merely records numbers dialed without overhearing verbal communications does not fall within this definition a. Pen register does not even require a regular warrant because it does not constitute a search under the Fourth Amendment b. Smith v. Maryland (1979)(pg. 362) c. Authorized Interceptions (pg. 362) i. A party to the communication 1. A person authorized by a party to the communication ii. Electronic communication made through a system that is configured so that such communication is readily available to the general public 1. Social networking sites 2. Radio communications iii. Quality control checks by common carriers and government agents are allowed for that specific purpose iv. Communications that concern national security 1. U.S. v. U.S. District Court (1972)(pg. 363) 2. The national security exception did not purport to eliminate the necessity of a court order for federal investigations of internal security matters that are not linked to foreign powers 127

v. Foreign Intelligence Surveillance Act of 1978 1. Created a secret court to monitor surveillance aimed at gathering foreign intelligence 2. Required a warrant for non-emergency national security surveillance, based on a probable cause finding that a foreign power or agent would be the target and the national security was the primary purpose a. Amended by the USA Patriot Act of 2001 to permit a FISA warrant whenever the intelligence is a significant purpose of the surveillance instead of the primary purpose b. The Protect America Act (2007) eliminated judicial review entirely when the director of national intelligence and the attorney general certify that the intelligence-gathering is a significant purpose of the surveillance and that there is a reasonable belief that it is targeted at a person outside the U.S. vi. Title III allows for domestic interceptions aimed at ordinary criminals if the application is proper d. Application for an Order (pg. 364) i. Identify the Applicant 1. For oral or wire communications a. Application must be made by the Attorney General or any assistant attorney general specifically designed 2. Electronic communications a. Any attorney for the government ii. Details of the Offense 1. Wire and oral communications a. The list of federal crimes which can trigger interception of wire and oral communications includes virtually any felony 2. Electronic Communications a. Any federal felony iii. Particularity Requirements 1. The need for particularity is especially great in the case of eavesdropping because it involves an intrusion on privacy that is broad in scope. Berger v. New York (1967)(pg. 366) 2. Agents need not list the identity of everyone they believe might be overheard 128

a. Title II requires the naming of a person when the law enforcement authorities have probable cause to believe that that individual is committing the offense for which the wiretap is sought b. U.S. v. Kahn (1974)(pg. 366) 3. Lower courts dont require the specific type of communication sought to be intercepted. Merely require a description of the offense being investigated. a. Important when determining the duration of the Title III warrant iv. The Last Resort Requirement 1. Requires a showing that other investigative procedures have failed to ensure that electronic eavesdropping is not routinely employed as the initial step in criminal investigations 2. However, this requirement is not strictly adhered to by lower courts v. Durational Elements (pg. 367) 1. Investigators must indicate the amount of time they need to complete the interception 2. May not exceed 30 days per order 3. Must also explain why the interception should not be automatically terminated when the described type of communication has first been obtained a. This requirement is diminished by the lower courts disinclination to require any specificity with respect to the type of communication sought to be intercepted 4. Must describe any previous applications for the same persons or places a. Designed to sensitive the judge to an overly intrusive or prolonged surveillance e. The Wiretap Order i. The judge must make several findings before a Title III warrant may be issued (pg. 369) 1. A probable cause belief that an enumerated offense has been, is being, or will be committed 2. A probable cause belief that particular communications concerning that offense will be obtained through the proposed interception 3. A belief that normal investigative procedures have been tried and failed or appear to be unlikely to succeed 129

4. A probable cause belief that the facilities to be subject are connected with the offense or the person named ii. If issued, the order must (pg. 369) 1. Identify the person whose communications are to be intercepted a. If the person is not known, he does not have to be identified 2. Identify the nature and location of facilities as to which authority to intercept is granted 3. Describe the type of communications sought to be intercepted and a statement of the particular offense to which it relates 4. Identify the person authorizing the application and the agency performing the interception 5. Provide that the authorization to intercept shall be executed as soon as practicable 6. Specify the period of time during which such interception shall automatically terminate 7. Provide that the interception be conducted in such a way as to minimize the interception of communications not subject to the Title III warrant 8. Require reports to be made to the judge who issued the order showing what progress has been made a. This is done at the discretion of the issuing judge f. Executive Order i. Generally 1. The interception should be recorded in a way t protect the recording from editing or alterations ii. Covert Entry 1. Entries onto private property to install and remove the eavesdropping device is permissible under the Fourth Amendment and permitted under Title III 2. Covert entry need not be authorized by the court, but can be carried out at the discretion of the officers 3. Dalia v. U.S. (1979)(pg. 370) iii. The Minimization Requirement 1. Minimizing the procurement of communications not otherwise subject to the interception 130

2. Factors (pg. 371) a. The percentage of the non-pertinent calls b. The length of the calls c. The ambiguity of the language used d. The type of use to which the telephone is normally put e. The scope of the investigation f. Whether the calls involve one or more of the co-conspirators g. The point during the authorized period that the interception was made i. Less minimization required at the outset as officers establish the pattern of calls h. The investigators subjective attitude toward the minimization iv. Amendments (pg. 371) 1. If officers overhear conversations about offenses not named in the warrant, they may seize these conversations as well. Analogous to plain view 2. Title III requires that to be admissible in criminal proceedings, these communications must be forwarded to the court as soon as practicable and the court must find that the contents were otherwise properly intercepted g. Post-Interception Procedures (pg. 372) i. Sealing provisions to protect against the editing or alteration of interceptions ii. Within 90 days of the termination of the order, the issuing judge must have an inventory served on the persons named in the order or application 1. Exclusion is mandated if the inventory does not reach the relevant parties within 10 days of trail h. The Suppression Remedy i. Exclusion required when (pg. 373) 1. Communications not related to the offense are intercepted and not disclosed to the judge 2. Intercepted communications are not sealed 3. Inventory is not provided to parties named in the order 4. The communication is unlawfully intercepted 131

5. The order of authorization or approval is insufficient on its face 6. The interception was not made in conformity with the order of authorization or approval ii. General Scope 1. iii. The Central Role Test 1. Suppression is required only when the statutory provision which has been violated was intended to play a central role in the statutory scheme. 2. Not considered a central role to the statutory scheme a. Accurate identification of the authorizing official b. All parties for whom the government has probable cause c. Sending of a post-surveillance inventory to persons whose communications have been intercepted but who were not named in the application or order 3. Can be predicted to be central a. Minimization requirement b. Violation of the 30 day limit iv. The Good Faith Exception 1. Even if exclusion is mandated under Title III, the government may be able to take advantage of a good faith exception 2. The government is not required to prove that a particular understanding of the law is correct, but rather only that its interpretation was objectively reasonable at the time 3. U.S. v. Ojeda Rios (199)(pg. 376) a. Prosecutor reasonably believed that when a tap is one of many in the same investigation, the tapes for the wiretap do not need to be sealed until the entire investigation is over b. This was an incorrect interpretation, but it was in good faith v. Standing 1. Fourth Amendment standing applies to Title III 2. Title III language, the aggrieved person is to be construed in accordance with Fourth Amendment standing rules. 3. Alderman v. U.S. (1969)(pg. 377) 132

4. Only those persons who can show that a search infringed upon their legitimate expectations of privacy may challenge the search a. Permits standing to the parties of an intercepted communication b. As well as to the owners of the premises on which the intercepted conversation took place, whether or not they were present at the time i. Criminal and Civil Remedies i. Criminal and civil remedies similar to those available for the Fourth Amendment ii. Intentional violations of Title II are punishable as criminal offenses and carry penalties of a fine of not more than $10,000 iii. Individuals who lawfully obtain information that was unlawfully recorded by another are not punished X. Tracking Devices a. The device must infringe upon an expectation of privacy that society is willing to recognize as reasonable. U.S. v. Katz (concurring opinion adopted by the Court to determine whether a search invokes the Fourth Amendment at all) (1971) b. A person has no expectation of privacy as to the location of his vehicle when traveling on public thoroughfares because he knowing exposes that information i. A beeper device in a car was used to track the vehicle when officers lost visual sight of it ii. Using the beeper to track the vehicle was not a search because there was no infringement on the individuals expectation of privacy iii. U.S. v. Knotts (1983)(pg. 379) c. When a beeper device is placed inside an object and constitutes a seizure (which is separate from the subsequent search in which officers follow the vehicle based on the beeper) a warrant is required and need show i. The object to which the beeper is to be placed ii. The circumstances that led to the police to want to install the beeper iii. The length of time for which the beeper surveillance is requested d. If the beeper transmits information that is otherwise protected, an individual can have that information excluded in a trial against him if he can show standing i. Where a beeper revealed information about a home, the owner had standing to contest the evidence ii. Other individuals who did not live in the home did not have standing to contest the search and the evidence need not be excluded in a trial against them 133

XI. Video Surveillance a. Private Areas i. Several courts have held that Title II applies to video surveillance by analogy 1. U.S. v. Torres (7th Cir. 1984)(pg. 382) ii. Other courts hold that only that those aspects of Title III that are required by the Fourth Amendment apply to video surveillance iii. Given its heightened level of intrusiveness, some argue that video surveillance ought to be subject to greater restrictions than electronic eavesdropping iv. In some instances, there is no alternative means for obtaining the information 1. People v. Teicher (1981)(pg. 383) 2. Dentist was suspected of sexually abusing patients b. Public Spaces i. What is exposed to the general public is not a subject of Fourth Amendment protections ii. Or Title III protections XII.Detection Devices a. The protection of a persons home has never been tied to a measurement of the quality or quantity of the information obtained b. Information is not exposed to police officers if the officers obtain the information with a device that is not in general public use. i. If a police device is not in general public use, then a person has no reason to take measures to maintain his privacy and prevent that information from being exposed ii. Kyllo v. U.S. (2001)(pg. 386) 1. Officers used a device that allowed officers to observe the thermal patterns of a home to detect whether the occupants were using lamps to grown marijuana. 2. Because the device that detected the thermal emissions was not in general public use, the occupants would reasonably believe that they had an expectation of privacy because they had no reason to know that police could obtain that information. c. Also, the officers must be at a lawful vantage point to utilize the device i. Dow Chemical v. U.S. (1986)(pg. 386)

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ii. Officers used a powerful camera to take pictures of a chemical plant from an airplane. 1. The airspace was navigable airspace and thus constitutes a lawful vantage point 2. Cameras are in general public use

Chapter 15The Fifth Amendments Privilege Against Self-Incrimination III. Generally a. Double Jeopardy i. Jury Trial Attaches once the jury is seated ii. Bench Trial Attaches when the first witness is sworn in b. Fifth Amendment v. Fourth Amendment i. Before an individual is in custody, courts use the Fourth Amendment to determine whether a search or seizure is permissible 1. Purpose is to deter police misconduct ii. After an individual is in custody, the Fifth Amendment applies 1. Purpose is to promote and provide a fair trial c. A custodial determination is made to determine whether the accused was entitled to warnings regarding his Fifth Amendment rights i. Custody occurs when the individual is arrested ii. Possibly before then iii. Blurred line IV. Compulsion a. Generally i. Determinations about whether an individual has waived his right against selfincrimination ii. A waiver must be voluntary and intelligent b. During questioning i. Defendants in custody 1. Custodial interrogation is inherently coercive 2. Miranda v. Arizona (1996)(pg. 393) 135

3. Two steps to ameliorate the presumption a. The suspect is told he has a right to remain silent b. The suspect voluntarily and intelligently waives that right ii. Trial witnesses 1. A witness at a trial is not entitled to warnings or to an assessment of whether any subsequent testimony is voluntarily and intelligent waiver 2. The mere act of speaking is a waiver of the right against selfincrimination 3. A witness at trial must expressly claim that right 4. Question has arisen whether a person intelligently waives a right if they dont know about that right 5. However, a witness knows that he will be a witness in advance, and has time to consult an attorney iii. Grand Jury Witness 1. Falls between a custodial interrogation and trial questioning a. Court failed to hold that a grand jury witness is entitled to Miranda warnings b. However, any subsequent use of grand jury testimony requires the state to show that the statements represented a voluntary and intelligent waiver of the Fifth Amendment i. If a witness is compelled to testify, this burden may not be met. 2. AR doesnt convene grand juries to support an indictment a. Uses a charging document called an information that is filed by the prosecutor iv. The Fair Examination Rule 1. If the accused testifies to incriminating information, the government is permitted to compel answer to questions asking for explication of that information on a waiver theory. Brown v. U.S. (1958)(pg. 396) a. Some courts construe Brown broadly to stand for the proposition that once the accused testifies concerning an offense for which he is on trial, he forfeits the privilege to all facts relevant to that offense, even if they were not mentioned on direct examination b. Other courts hold that cross examination by the government is limited to the scope of the direct examination 136

2. If the person testifying is not the accused, admission of an incriminating fact constitutes a waiver of the Fifth Amendment protection with respect to the details surrounding that admission. Rogers v. U.S. (1951)(pg. 397) v. The Continuing Waiver Theory 1. If a witness does waive the Fifth Amendment by testifying, that waiver is applicable only throughout that proceeding. 2. Some courts hold that waiving the Fifth Amendment right in a grand jury also operates as a waiver at the subsequent criminal trial

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