CRIMINAL PROCEDURE P121 KATZ & NEW TECHNOLOGY: Back to the Future? KYLLO V. U.S.

(USC 2001) FACTS: Agent Elliot of Dept of Interior suspected Kyllo in growing Marijuana. At 3:20 Am Jan 16, 1992 Elliot and others used an Agema Thermovision 210 to scan o Therma imagers use infared then converts the radiation into images based on relative heat. The scan was takenfrom street in back of house Images showed roof over garage and side wall of home were substantially> in heat Based on informants, utility bills, and thermal imaging warrant issued for search of home where they found > 100 plants. ISSUE: Whether the use of a thermal-imaging device aimed at a private home from a puplic street to detect relative amounts of heat within the home constitiutes a search within the meaning of the Fourth Amendment. RULES: At the very core of the Fourth Amendment stands the right of a person to retreat into their home and there be free from unreasable govt intrusion Visual surveillance was lawful because the eye cannot by the law be guilty of trespass Court has held that visual observation is not a search o Katz: Reversed principle from case has been used to determine I: whether or not a search is a search. P123 o Florida v. Riley: Held that aerial surveillance of private homes and surrounding areas did NOT constitiute a search. o Silverman: P124: Obtaining by sense-enhancing technology any info regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitiionally protected area constitutes a search *At least as here the technology in question is not in general public use. DISSENT: P127 All that the infared camera did in this case was passively measure heat emitted from the exterior surfaces of petitioners home; and is different from things like x-rays which are through the wall. Sucha use of senses, i.e. determining what part of the room/building is warmer, instead here an adjoining neighbor allowed an officer onto her property to verify her perceptions with a sensitive thermometer. QUESTION AND ANSWERS Night Vision Goggles: while readily available to the public the majority in Kyllo makes it clear that they are concerned with the erosion of the Fourth Amendment Rights.

P.114-121 (n5-8) Note 5: Open Fields Hester v. U.S. 1924: o Open Fields Doctrine: police entry of an open field does not implicate 14th Oliver v. U.S. 1984: held good law after katz and that an open field includes any unoccupied or undeveloped area outside of the curtilage of a home. An open field need be neither open nor a field as those terms are used in common speech. o Put No Trespassing signs up and maybe even barbed wire.

o In Kentucky at the time trespass constituted a criminal offense. Nor are open fields effects within the meaning of the Fourth Amendment. Effects is less inclusive than property and cannot be said to encompass open fields. Hold; that the govts intrusion upon the open fields is not an unreasonable search proscribed by the fourth amendment. o Precedentially: an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. curtilage Open fields do not provide the setting for those intimate activities the Fourth Amendment is intended to shelter from govt interference or surveillance. Note 6: Curtilage: An area of land attached to a house and forming one enclosure with it: "the roads within the curtilage of the development site". four factors 1: proximity of the area claimed to be curtilage to the home 2) Whether the area is included within an enclosure surrounding the home 3) The nature of the uses to which the area is put 4) Steps taken to protect the area from observation by people passing by. o DUNN: requires courts to conduct case-by-case determination of whether the police have entered a curtilage as distinguished from an open field. Note 7: Aerial Survellance of a curtilage California v. Ciraolo: private plane at 1,000 feet above ground and readily identified marjijana plants and based on this obtained warrant. o Held; not a search.. Large Dissent Note 8: Rifling through garbage P133 U.S. v. JONES 2012 PROF: justices appear to be arguing whether katz is the exclusive test ISSUE: whether the attachment of a GPS device to a car and subsequent use of that devie to monitor the cars movements on public streets constitutes a search or sizure w/in 14th. FACTS: Jones owned night club in DC. Suspected of trafficking narotics. Tracked car for 28 days. Once had to change battery. Got over 2,000 pages of data. PH: held that data obtained while the car was parcked in his garage was INADMIT but that all the other data obtained while on public streets ADMIT Reason: because a person on public streets has no reasonable expectation of privacy in their movements from place to another. HERE: The govt physically occupied private property for the purpose of obtaining information and there is no doubt that such a physical intrusion would have been considered a search within the meaning of the Fourth Amendment when adopted. o Trespassing portion of test

KATZ: deviates from this strict approach and expands the test and understanding of the analysis to include reasonable expectation GOVT ARG: Uses three cases 1: KNOTTS: Beeper attached to car before it was in Ds hands. Held: that the reasonable expectation prong of the test and did not challenge that installation before in defendants hands. 2: KARO: Beeper installation. Held: that the government first came into physical contact with the beeper container before it belonged to defendant and second that the transfer of the container with the unmoniteored beeper insude did not convey any information and thus did not invade defendants privacy. Secondly KARO was considering whether a seizure occurred, and a seizure occurs, not when there is a trespass, but when there is some meaningful interference with an individuals possessory interest in that property o Here different before the defendant possessed and owned the car and tracked device at the time the govt trespassorily inserted the information gathering device, MAJORITY: Does not make the katz exclusive trespass test the only test. Minor ISSUE: There is no precedent for the proposition that whether a search ahs occurred depends on the nature of the crime being investigated. o On the other hand the govt also argues that even if attachment and use of device was a search it was reasonable. However, The govt did NOT raise the issue below and thus, is not addressed here. HOLD: Illegal search. Concurrence would make katz the exclusive test. J. SOTOMAYOR CONCURRING: the government usurped Jones property for the purpose of conducting surveillance on him, thereby invading privacy interests long afforded and undoubtedly entitled to Fourth Amendment Protection. Also: even in absence of trespass a 4th Am serach occurs when the govt violates a subjective expectation of privacy that society recognizes as reasonable. o KATZs: reasonable-expectation-of-privacy tst augmented, but did NOT displace or diminish, the common law trespassory test that preceeded it. RULE: when the government physically invades personal property to gather information, a search occurs. P139. The same technological advances that have made possible nontrespassory surveillance techniques will aslo affect the katz test by shaping the evolution of societal privacy expectations. J. ALITO; GINSBURG; BREYER; KAGAN CONCURRING I would analyze the question presented in this case by asking whether respondents reasonable expectations of privacy were violated by the long term monitoring of the movements of the vehicle he drove o The attachment of the GPS was not itself a serach NOR does the majrority contend that the use of the device constitiuted a search either. Majority follows KNOTTS Four flaws

1) Marjoirty focuses on the attachment of the GPS itself and not the long-term tracking because if long-term tracking can be accomplished without committing a technical trespass the majoritys theory would provide no protection. 2) The majoritys reasoning, that because the GPS was installed after D. owned the car created the trespass and search and that IF it had been attached before it would not be a search. Finds flaw in that a bailee: A person or party to whom goods are delivered for a purpose, such as custody or repair, without transfer of ownership. 3) Majority reasons that the 14th amendment would apply State by State because community property states vs. separate property states and thus, ownership and title would vary. 4) Issue with trespass law.

U.S. v. KARO FACTS: Tracking device placed into can of chemicals before it was owned by D. and with the consent of the original owner. RULE: p148 A Siezure of property occurs when there is some meaningful interference with an individuals possessory interests in that property. However, brief the property is interefered with in a meaningful way it is a seizure. ISSUE: Whether installation of a device into property with the permission of the original owner constitutes a seizure within the meaning of the Fourth Amendment when the container is delivered to a buyer having NO knowledge of the presence of the beeper. HOLD: Here it cannot be said that anyones possessory interest was interfered with a meaningful way. Florida v. Riley p120 FACTS: helicopter over covered ggreenhouse. Property was within the curtilage holding would be different if the flying altitude had been contrary to law or regulation HOLD: not a search. Court held based on 4 votes. Pluraity: KYLO v. US 2008 FACTS: Thermal detector used form street to expose exesesive heat signatures indicating the presence of a marijuana growing operation. Search warrant was issued based on this info and informations. RULES: We have applied this tets Katz in holding that it is not a serch for police to use a pen register at the phone company to determine what numbers were diald in a private home [Smith v. MD] and we have applied the test on two dif occasions in holding that aerial surveillance of private homes and surrounding areas does not constitiute a serach [Ciraolo & Florida v. Riley] P124 we think that obtaining by sense-enhancing technology any info regarding the interior of the home that could not otherwise been obtained w/o physical intrusion into constitutionally protected area constitutes a serach at least where as here technology in question is not in general public use. thus, search. o (1) information obtained by sense-enhancing technology; o (2) of information regarding the interior of the home;

o (3) that could not otherwise have been obtained without physical intrusion o (4) and at least as here the technology is not in general public use. Note 5: record showed a similar product that is publicly available and sold in numbers around 800 less than the one in question. GOVT ARG: [Dow Chemical: enhanced imaging techniques and did not reveal intimate details was and thus was not a search. Here: the fourth amendments protection of the home has never been tied to measurement of quality/quantity of info. [Silverman: any physical invasion of the home, by even a fraction of an inch was too much, and cause law tells us that any detail is an intimate detail. HOLD: where the govt uses (1) a device that is not in general public use, (2) to explore details of the interior home (3) that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant. DISSENT: all the infared camera did in this case was passively measure heat emitted fom the exterior surfaces of petitioners home; all that those measurements showed were relative differences in emission levels what areas were warmer. Dif: from x-ray scans which make it possible to see through-the-wall o such use of the senses would not convert into an unreasonable search if, instead, an adjoining neighbor allowed an officer onto her proerpty to verify her perceptions with a sensitive thermometer. There is no reasonable expectation that things like heat waves, or aromas from a kitchen, would remain private. Nothing more was involved in this case than the drawing of inferences from off-the-wall surveillance, rather than any through-the-wall surveillance. P128 [US. V PLACE: drug sniffing dog the court held that a dog discloses only the presence or absence of narcotics and does not constitute a search. o Dissent would argue that the thermal imaging thing is the same. The thermal imaging takes place outside the private and protected space and enables the person outside this space to know what is going on inside this private space just as in katz the recording device was on the outside of the phonebooth enabling the officers to know what is going on inside the private phone booth.

In U.S. v. Forrester: US court of appeals held that an internet user has no expectation of privacy in the email addresses. P14p note 4: Cops may seize what they have probable cause to believe is criminal evidence falling within three categories: (1) contraband evidence that may not lawfully be possessed by a private person (2) fruits of a crime (3) instrumentalities used in the commission of an offense (i.e a weapon, get-away car) (4) Mere evidence an item of value to the cops solely because it will help in the apprehension or conviction of a person for an offense. I.e. blood stained shirt in homicide investigation. Gouled v. US: stated that these could not be seized because the govt needed a proprietary interestabandoned the mere evidence rule concluding Seizure of a person: [Terry v Ohoio: court held that a seizure occurs when the officer by means of physical force or show of authority has in some way restrained the liberty of a citizen

Chapter 4: The Substance of the Fourth Amendment A. Probable Cause Probable cause to arrest: exists where the facts and circumstances within the officers knowledge and of which they have reasonably trustworthy info are sufficient in themselves to warrant a man of reasonable caution in the belief that evidence an offense as been committed by the person to be arrested. Proabale Cause To Search: exists where the facts and circumstances within the officers knowledge and of which they have reasonably trustworthy info are sufficient in themselves to warrant a man of reasonable caustion in the belief that evidence subject to seizure will be found in the place to be searched. Spinelli v. U.S. FACTS: convicted of intent to establish gambling activities. [AGUILAR]: court held the affidavit inadequate because one it failed to st forth any of the underlying circumstances necessary to enable the magistrate independently to judge the validity of the informants conclusion that the narcotics were where he said they were and two the officers did not attempt to support the hearsay claim that their informant was credible. HERE: we believe that the totality of circumstances approach taken by [ph] paints with to broad a brush. Where as here the informers tip is a necessary element in a finding of probable cause. TEST: first: informers tip must be measured against aguilars standard underlying circumstances Second: can the tip, when certain parts have been corroborated by independent sources, is as trustworthy as a tip which would pass aguilars test without independent corroboration. *Veracity and Reliability* Draper: detailed information that the officer does ind work to corroborate and confirm Note: Spinelli while not GOOD federal law some states, including Massachusetts still use this test. Furthermore, VS: GATES: dont need both veracity and corroboration. Two ind prongs is abandoned by gates. ILLINOIS v GATES FACTS: anonymous handwritten letter accusing couple of selling drugs and details about how they go about it. Detective Mader pursued the tip. Found out a person with the name in letter lived at that address and had flights to where the person said the person was going. Sufficiently unusual behavior, flight to Florida and then driving back within thirty six hours, corroborated being enough to give probable cause Majority relies on the fluidity of the totality of circumstances. The unusual behavior where an informants hearsay statements that can be sufficiently verified in order to demonstrate that they would have to be in the know and thus giving rise to probable cause. GATES/RULE163: the two pronged tests are better understood as relevant considerations in the totality-of-circumstances analysis that traditionally has guided probable cause determinations; a deficiency in one may be

compensated for, in determining the overall reliability of a tip, by a strong showing as the other, or by some other indicia of reliability. Probable Cause;165 Traditional standard for review of an issuing magistrates probable-cause determination has been that so long as the magistrate had a substantial basis for concluding that a serach would uncover evidence of wrongdoing.

ARREST WARRANTS PAYTON v. NEW YORK USC 1980 ISSUE: Whether and under what circumstances an officer may enter a suspects home to make a warrantless arrest. FACTS: (I) Cops gatherd sufficient evidence to show prob cause. thought to have murdered man 2 days prior. o Warrantless entry: 6 cops. No one responded to door. Used crow bar. Only found shell casing. Taken for evidence. PH held that the warrantless and forcible entry was authorized by NY Crim Pro held also that evidence in plain view was properly seized (II) ma id by vics in 1973/and again 74 was arrested without warrant. o Opened two drawers and found drugs and guns. HERE: (1) Warrant to enter persons home in order to execute arrest; vs (2) Warrant to enter persons home to search. Thus, the question is what is the law when a warrant (1) is ussued and while executing this warrant (2) is performed. CASE DIF: commone law. WATSON: arrest occurred in public space thus, the property searched and seize there did not have a reasonable expectation of privacy. RULE: If there is sufficient evidence of a citizens participation ina felony to persuade a judicial officer hat his arrest is justified, it is constitutionally reasonable to require him to open his doors to other officers of the law and thus, the fourth amendmentnt puproses, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is there. DISSENT: At common law: o 1) absent exigent circumstances entries 2 arrest could be done for felony o 2)first knock and once denied entry break doors. o 3) daytime 4) and in my view must have reason to believe person home. NOTES: p186 4: Policy reasons: 1) Cop makes assessment of probable cause for executing the arrest of a person suspected of a crime and because public executes the arrest. 2) Then the neutral judgment of the magistrate determines if further liberty violations are justified by probable cause (i.e. warrant to enter home 4th amendment violations.

o Policy purpose no more threat crimes will be committed; prolonged detention interferes with income relationships; NOTES *RUlLES: Whatever procedure a State adopt; o nonadversary proceeding on hearsay and written testimony,decided by a magistrate of these proceedings The State must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty and this determination must be made by a d\judicial officer either ber\fore or protm[ly after arrest. Gerstein Requirement: a jurisdiction must provide probable casue decisions w/in 48 hours after a warrantless arrest, absent emergengy or crazy circumstances. Open: remedy if no timely hearing provided. Garner Rule: if unreasonable force is used to execute arrest, even If based on probable cause, is an unreasonable seizure of the person. o Unreasonable force: reasonabless standard under FOURTH AM. Absence of hot pursiet there must be at least probable cause to believe that ONE OR MORE of the other factors justifying entry were present o assessing the risk of danger o gravity of crime o likelihood suspect has gun. Stealgald Principle: ARREST not SEARCH warrant third parties residence: 190: Arrest warrant is issued by a magistrate upon showing that probable cause exists to believe that the subject of the warrant has committed an offense, and thus the warrant serves to protect an individual from an unreasonable seizure. 190: Search warrant is ussued upon showing of probable cause to believe that the legitimate obj of a serach is located in a particular place, and thus protects an indivdiuals interest in the priavacy of his home and posessions against the unjustified intrusion of cops. RULE: in the absence of exigent circumstances, judicially untested determinations are not reliable enough to justify a search of a home for objects in the absence of a search warrant. Exception to [Payton v NY] [Minnesota v. Olson: court held: a warrantless intrusion may be justified by hot pursuit of a fleeing felon, or immenent destruction of evidence, or the need to prevent a suspects escape, or risk of danger to cops or others in or outside the dwelling. in the absence of hot pursuit there must be at least probable cause to believe that one or more of the other factors justifying entry were present

WARRANTS WARRANTS SEARCH SEARCH 1) Based on probable cuase 2) Supported by aoth/affirmations magistrate etc. 3) 195---warrant particularity: more generality given to objects that are vague (ex paper clips) if contraband

4) Execution LO-JI SALES, INC. v NEW YORK USC 1979 pp195 FACTS: cop went into adult book store. Watched two videos. Wanted search warrant. Warrant asked town Justice to join him at execution of warrant Purpose was to allow him to determine if the items were subject to seizure. o After the serach and seizure the items taken were then compiled and a warrant that had been 2 pages when signed prior to the search was 16 pages after the search HERE: search began when cops and justice entered the premises. At the time the search began there was not sufficient probable cause to pursue a search beyond the two films specified in the warrant and the cops saw. o The justice by not assessing the objective facts of the situation upon entrance became a member of the police task. RULE: a warrant authorized by a neutral and detached judicial officer is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer engaged in the often competitive enterprise of ferreting out crime Wilson v. Arkansas 1995p199 RULE: Fourth Amendment prohibition on unreasonable searches and seizures contains an implicit knock-and-announce rule previously embedded in the common law. However, this is not to say that every entry must be preceded by an anouncment. Richards v. Wisconsin 1997pp201 FACTS: Wisconsin Sup CT decided that cops are never required to knowck and announce their presence when executing a search warrant in Felony Drug investigations. HERE: per-se exception to the knock and announce rule Watson is NO GOOD because: 1) Overgeneralization. 2) Slipperly Slope Arg if per-se exception here then why not follow it for there. Thus: It is the duty of the court confronted with the question as to whether or not a no-knock entry is applicable. To justify no-knock, cops must: 1) have reasonable suspicion that knocking an announcing, under those particular circumstances, a) be dangerous/futile b) inhibit investigation i.e. destroying evidence. o Standard: is less then that of probable cause NOTES/RULES: U.S. v. BANKS: Cops executing search warrant knocked and announced and wited fifteen to twenty seconds then subsequently used battering ram to enter. o Held: under those circumstances an exigency justified the forcible entry. Fact that was in shower is irrelevant because what is assessed are the facts known to the cops in judging reasonable waiting time.

RULE: 15 to 20 seconds is reasonable time for officers to wait after knocking Scope of search: After entering to execute warrant extent of the search depends on the circumstances and items specified to be searched. o Thus, search for stolen ring would permit searching dressers and drawers vs. a search warrant for stolen giant TV would not permit such a search. May seize objects not in described in warrant if cops have probable cause to believe it is seizable: contraband, fruits, etc. NOTES: come back to page 206 .. Accident Pp209 note 9 Michigan v. Summer: bright line rule EXAM MUlller v Mena p209

Kentucky v. King USC 2011 FACTS: controlled crack purchase. Ran to apt. Entered breezeway. Cops followed could smell marijuana. There was two apatartments. Radio said right one. Cops chasing did not hear. Cops knowcked heard moving around kicked in door. PH/TEST: 1) court held police cannot deliberately create the exigent circumstances with the bad faith intent to avoid warrant requirements and 2) even absent bad faith, the court concluded the cops may not rely on exigent cirumstances if it was reasonably forceable that the investigative tactics employed by ISSUE: whether the exigent circumstances rule applies when police, by knocking on door of a residence and councig presence casue occupants to destroy evidence. HOLD: the conduct of the police prior to entry was entirely lawful and did violate fourth amdendment. They remand the REASONING: Police-Created exigency: Police may not rely on the need to prevent destruction of evidence when that exigency was created or manufactured by the conduct of the police. REASONING: Supreme Court rejects the bad faith requirement and reasonable foreseeability and probable cause and time to secure warrant and standard or good investigative tactics. RULE: exigent cirumststances applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment. PROF: see 215 NOTES: 1: An exception to the warrant req does not necessarily (or usually) dispense with probable cause req. 2: Warrantless entry of the home (part 1): [King: Warrantless entry of the home (part 2):

 [Welsh v. Wisconsin: driver suspected driving drunk. Cops enteres his home without consent or warrant. Exigency evidence of BAC would be destroyed. o Held: before govt may invade home, the burden is on the govt to show exigent circumstances [standard: need to overcome presumption of unreasonabless] One fator to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made. Warrantless entry of the home (part 3): community caretaking ***** EXAM It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumaptively unreasonable. One exigency obviating the req of a warrant is need to assist persons who are seriously injured or threatened with such injury o Officers announcement of their presence was at least equivalent to a knck on a screen door standard: reason to believe

CHIMEL v CALIFORNIA USC 1969 P221 FACTS: cops arrive with warrant for arrest for burglary. No search warrant Cops knock. Identified themselves; and asked and were welcomed in; waitied ten minutes before arrived home objected to looking around but cops conducted search PH: held that the search had been justified despite absence of search warrant because it was incident to a valid arrest. ISSUE: whether warrantless search of entire house can be justified as incident to arrest. PRECEDENT: [Carroll v US: when person is legally arrested, whatever is found upon the person or in their control which it is unlawful for them to have and which may be used to prove the criminal offense may be seized and heald as evidence. [AGNELLO v US: the right w/o search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where arrest is made in order to find and take things with the crime as its fruits or as the means by which it was committed is not to be doubted. CALI ST RULE: Warrantless search incident to a lawful arrest may generally extend to the area that is considered to be in the possession or control of the person arrested. RULES: to dispense with search warrant the burden is on those seeking an exemption from the requirement I: it is reasonable for arresting cop to search the person for weapons etc. II: it follows thus, that it is also reasable to search and seize evidence within reach. I.E: within immediate control. [US v KIRSCHENBLATT: after arresting a man in their home, to rummage at will among his papers in search of whatever will convict the man, is to us

indistinguishable from what might be done under a general warrant; HOLD: search went beyond the peritioners person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him. There is thus, no justification in the absence of a search warrant for extending search beyond that specific area. DISSENT: what about wife being there an letting them search. Or she might destroy evidence NOTES: Principle of particular justificiation police must, whenever practicable, obtain advance judicial approval of searches and seizeures through the warrant procedure and the scope of a serach must be strictly tied and justified by the circumstances which rendered its initiation permissible. See 229 2 rationales for search incident to arrest o 1: the need to disarm suspect in order to bring into custody. o 2: Need to preserve evidence for later at trial. US. V ROBINSON 1973 p229 FACTS: believed defendant was operating car after revocation of his permit. Cop pulled him over. Then began to search his body. Felt object in left breast pocket. Cop reached in and pulled out crumpled up cig box. o The ciggarrette box when in the hand of the cop was determined to contain something other than cigs. Thus, cop then opened up cig pack and found heroin. RULES: Terry Protective FRISK: can be done without probable cause for weapons. o DIF searches incident to an arrest and a limited search for weapons. - Cops determination as to how and where to serach the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down case by case. HOLD: In the case of a lawful custodial arrest a full serach of athe person is not only an exception to the warrant requirement of the Fourth Amendment, btu is also a reasonable serach under that amendment. Note 6: because here the officer made a full-custody arrest and was not a routine stop. having in the course of a lawful serach come upon the crumpled package of smokes, he was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as fruits, insturmentals or contraband probabitve of criminal conduct. CONCURRENCE: if arrest is lawful, the privacy interests rotected pursuant to the 4th Am is subordinated to a legitimate and overriding governmental concern.

NY v. BELTON 1981 FACTS: Car pulled over. Cop Smelt Weed. No one in car owned car. He searched car after giving Miranda rights. Searched passenger compartment. On back seat in a jacket belonging to BELTON fund cocaine.

ISSUE: what is the proper scope of a search of the interior of a car incident to lawful custodial arrest of its occupants. HOLD: When a cop has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, serach the passenger compartment of that car. It thus follows that they may search any containers found within the passenger compartment not encompass the trunk. NOTE 7 Supreme court extended Belton in Thornton v US. Thornton: cops lawfully arrest D. D was arrested after exiting car for drugs. o NOTES 4. Search incident to lawful citation: o Knowles: Cop pulled over car speeding. Issued citation. Then searched. o 1: the need to disarm suspect in order to bring into custody. In Robinson cour stated that a custodial arrest involves danger to an officer becuaese of extended exposure which follows the taking of a suspect into custody and transporting him to station. Here: a traffic stop is brief encounter. o 2: Need to preserve evidence for later at trial. Here: once citation issued all the evidence to prosecute had been obtained. Virginia v Moore: court held that a custodial arrest based on probable cause, although in violation of state law, is lawful for purposes of the Fourth Amendment. ASearch conducted as an incident of such an arrest (i.e. an illegal arrest under state law) is still a lawful arrest for search purposes under the 4th. ARIZONA v. GANT 2009
A. Search Incident to Arrest in an Automobile 1. Arizona v. Gant Issue: Usually a warrantless search incident to arrest is okay because person being arrested could destroy evidence or harm the officer. But here, the guy was already secured in a police car and there was back up at the scene. So no such justification. Exists here because guy already secure. Is a search incident to arrest okay without a warrant when the arrested person is secure? Holding: NO. Does not make sense if the person is already secure to do a warrantless search. Police can search only if person within reaching distance of the car and they have reason to believe that evidence in the car will be destroyed. Dissent: says that prior precedent from Belton should not be overlooked. Thus, all warrantless searches incident to an arrest should be okay. The dissent also says that reliance by police officers on the rule from Belton ought also to be considered. Also says that the Belton court did not reason poorly so no justification for changing the rule set out in that case.

WHREN v US 1996 p261 Subjective standard. ISSUE: Whether the temporary detention of a motorist when cops have probable cause to believe has committed a civil traffic violation is inconsistent with the fourth amendments prohibition against unreasonable seizures unless a reasonable

officer would have been motivated to stop the car by a desire to enforce the traffic laws. FACTS: plainclothes cop patrolling high drug area in unmarked car. Cops saw car at stop sign with temp plates. Sat for unreasonable amount of time. Car did U turn. Then took right without signal at unreasonable speed Cops pull alongside and identified self as cops. o When grabbing license cop observed two large bags of coke in hands. Then arrested. ARG: in the unique context of civil traffic regulations probable cause is not enough. Defendants argue that allowing these violations creates the temptation to use it as a means of investigating other things as to which no probable cause exists. ANALYSIS: Florida v. Wells: an inventory search (the search of property lawfully seized and detained to ensure it is harmless) must not be used as a ruse for a general rummaging in order to find incriminating evidence. Colorado v. Bertine: in approving an inventory search the court found imp that there had been no showing that cops, who followed standard procedures, acted in bad faith, or for the purpose of their investigation. NY v Burger: upholding administrative inspection (inspection of business to enforce regulatory schemes) because the search did not appear to be a pretext. Three cases however simply explain that the exemption from the need for probable cause, which is accorded in those types of searches, is not accorded to searches that are not made for those purposes. US v. VILLAMONTE: Court held that an otherwise valid warrantless boarding of a vessel by customs was not rendered invalid because the customs officers were accompanied by state cops and were following informants tip. Court flatly rejected idea that an ulterior motive might serve to strip agents of legal justification. US v. ROBINSON: Court held that a traffic stop (like here) would not invalid because it was a mere pretext for a drug search and that a lawful post arrest search of the person would not be invalid by the fact that it was motivated by safety concern. Balancing: between govt and individual interest implicated in a traffic stop as here. HOLD: For the run-of-the-mine case, as here, where there is no realistic alternative to traditional common-law rule that probable cause justifies a search and seizure. If straight up pretext for racial pull-over. Would have to win under an equal protection claim. And there the Subjective factors would prve and not statistical analysis of disparate impact. PROF: See Kentucky v. King. Knock and then pretext hearing shit. BUT court did not find the pretext. However, under Whren was car. RULE: If person committed crime That gives you probable cause. The motivation, i.e. the subjective intent of the cops, does not matter for the purposes of the Fourth Amendment. NO DISSENT Cars & Containers CHAMBERS v. MARONEY 1979 P269 FACTS: robbery. 2 men with guns. 2 wits earlier saw blue car circling a block away.

Saw same car parked there later.. Store-owner told cops that one of the robbers was wearing a green sweater the other was wearing a trench coat. o Within hour a car matching the description was stopped two miles away. o One was wearing a green sweater the other a trench coat. Occupants arrested Car was taken to station. Search turned up guns in concealed compartment A right hand gloce. Certain cards bearing the name of the gas station attendment who was robbed earlier. RULES: once an accused is under arrest and in custody, then a serach made at another place, without a warrant, is not incident to the arrest [Preston v. US] HERE: cops had p.cause to think robbers, carrying guns and fruits of the crime, had fled the scene in the car they stopped, one of which would be wearing green sweater other trench coat. PRECEDENT: Courts have held that cars and other conveyances may be searhed without a warrant in circumstances that would not justify the search without a warrant of a house or office, provided that there is probable cause to believe that the car has articles the officers are entitled to seize. RULE: The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the car offend against the law. A search warrant is unnecessary where there is probable cause to search a car stopped on the highway o The car is a moveable thing and the occupants alerted and its contents may not be found again if warrant must be issued. Thus, an immediate search is constitutional. Because of the preference for a magistrates judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the lesser intrusion is permissible until the magistrate authorizes the greater. BUT which is greater and which is lesser may depend on the variety of circumstances. Held. Yes. The court first referenced the Carroll case, which held that if an effective search [of a car] is to be made at any time, either the search must be made immediately without a warrant or the car itself must be seized and held without a warrant until a warrant is obtained. The court pointed out that probable clause applied in either circumstance, and so there is little to choose in terms of practical consequences between an immediate search without a warrant and the cars immobilization until a warrant is obtained. Generally, the court held, the level of intrusion under the Fourth Amendment, immediate search vs. seizure in anticipation of a warrant, may depend on a variety of circumstances. DISSENT: Whether a temporary seizure is a lesser intrusion than warrantless search is itself a debatable question and the answer may depend on a variety of circumstances. I believe that it is clear that a warrantless search involves greater sacrifice of Fourth Amendment values. PROF: 1) What support do the police have to search the car? In instances where the serach is done pursuant to an incendent to an arrest search whereby the search is done to

extinguish dangers to the police. But here the search when not done incident to arrest and doen later it does not matter who is in the car It matters whehther or not there is probable cause to believe that evidence of the crime is within the car. NOTES 1: What about weighing interest of driver vs law enforcement to decide if warrantless car search is reasonable. DRIVER: interests 1) continuing free travel 2) Control over property 3) secrecy/privacy of contents. NOTE 2: Coolidge v. New Hampshire: investigating murder. Cops questioned him; lie detector test; later determined had sufficient evidence to arrest. Arrested at his home. After in custody two cars seized without warrant. One car searched a few days later; o Then again a year later o Third time five months after that. Plural HOLD: warrantless car searches unconstitutional notwithstanding probable cause. Defendant already knew he was suspect. Had opportunity to destroy. And thus, the cops did not have exigent circumstances and the opportunity for search was thus hardly fleeting. PROF: Collidge is probably not good law anymore. RULE: Anticipatory Search Warrants: Adds two more requirements to the four(4) search warrant requirements. o 1. Must show that the evidence is on a sure and irreversible course to its destination. o 2. Must provide adequate judicial control of the warrants execution. - An insufficient warrant may be bolstered by supplementary testimony if is recorded. CALIFORNIA v. CARNEY 1985 P275 reduced-expectation of privacy rationale. ISSUE: whether cops violated 4th amendment when they conducted a warrantless search, based on probable-cause, of a fully mobile home located in a public place. FACTS: Cops had tip that defendant was exchanging weed for sex. o Cops maintained surveillance while youths remained in motor home. o When youth left the agents followed. o Youth told them that defendant had exchanged weed for sex. o Agents went to home. Kicked. Carney stepped out. IDd themselves. o Then without warrant or consent entered home saw weed and stuff. o Took defendant into custody and took possession of home. o Searched mobile home again at station. RULES: Automobile exception (Carrol v. US) o While the privacy interest in a car are constitutionally protected the court held that the mobility of a car justifies a lesser degree of protection of those interests Cars unlike homes are subjected to pervasive and continuing govt regulation and controls. And cops check inspection tickers etc.

 The rule has never been based on whether or not the vehicle is road worthy or not. DISSENT: the general rule should be when in doubt force a warrant. However, the majority widening the exception here, is thereby eroding the warrant requirements in general. Motor homes, by their common use and construction, afford their owners a substantial and legitimate expectation of privacy when they dwell within. I believe that society is prepared to recognize that the expectation of privacy within it are not unlike the expectations one has in affixed dwelling, when the motor home is parked in a location that is removed from a public way. PROF: Case is significant in that it introduces the fact that people have a lessened expectation of privacy. Thus, 1) the mobility and 2) lessened expectation of privacy both justify searches prior to warrant issued by a magistrate NOTES 3: another exception AUTOMOBILE INVENTORIES [South Dakota V. Opperman: Os car was towed, as local ordinances allowed. o Cops, pursuant to standard procedures, unlocked car and interviewed The inventory was also standard procedure. In glove compartment found weed. Probable cause approach is helpful when analysis centers upon the reasonableness of routine administrative caretaking functions Non investigative cop inventories of cars lawfully within their custody are not subject to the policies underlying the warrant requirement. o RATIONALE: that upon balance of the interests, drivers: be secure that his property will not be violated etc. cops complaints against stolen goods and protection from danger; whether stolen etc. o HOLD: Routine inventory searches that are done pursuant to standard operating procedures and do not exceed the scope of their own rules are reasonable. [Florida v. Wells: court held that cops were not permitted to open locked suitcase discovered during inventory because the highway patrol had no policy with respect to the opening of closed containers during inventory searches] o Inventory Searches: subjective intent purpose does matter. Just because you are arrested your privacy rights with your car etc. have not disappeared. Thus, the cops for an inventory search require more of a showing for their search. The inventory serach is not justified upon the same rationale as searches incident to atrrest i.e. searches incident to arrest. The pre-text does matter when car impounded for violation of local ordinances. When search is conducted without relation to the reason for the arrest then pretext does matter.

US v. CHADWICK 1977 p282 Containers in Cars FACTS: Amtrack peeps saw people load brown footlocker onto train heading to Boston. Became suspicious ; weight relative to its size. And it was leaking talcum powder. o Talcum powder often used to mask odor of drugs. Train arrives in Boston with feds awaiting it.

Did not have warrant for arrest or search. Did have drug dog. o Cops watched defendants as they picked up the case. Dog signaled after defendants picked up case that there was drugs. Defendants moved 200 pound case into trunk of car. o Before car was on; before trunk was closed; arrested Case remained in governments control at all times. Case placed in fed building and no risk that it would be removed. also no reason to think drugs or other dangers. o Cops opened case and luggage without consent nor warrant. PH: The court rejected the states automobile exception (Chambers v. Moroney) stating that the relationship between the case and the car were merely coincidental and that the case was not part of the area within which defendants might gain possession of a weapon or destroy evidence. P. ARG: Strict reading of 4th stating that people have a lesser expectation of privacy and societies values in those situations is not as high and thus was reasonable here. RULES: From Katz the 4th protects people, not places specifically protects people from unreasonable govt intrusions into their legitimate expectations of privacy. HERE: important 4th privacy interests were at stake By placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination. RULES: Factors that diminish privacy aspects of an automobile to not apply to case here Luggage are not open to public view. Not subject to regular scrutiny by officials. Is intended unlike a car, as a repository of personal effects. o Once cops have reduced luggage or other property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest. DISSENT: Robinson established that no warrant is required for cops arresting a person to serach their clothing and effects. Chambers After custodial arrest of person driving car; car may be impounded and with probable cause its contents including locked areas examined without warrant. NOTES4: A warrant is required at the point where the property to be searched comes under the exlcusive dominion of the police authority. This rule is ifferent from the ruling in Robinson whereby after being lawfully arrested the police searhed the arrestees body, i.e. not property. NOTE 7: Containers coincidentally in cars Arkansas v. Sanders cops had p. casue to believe sanders would arrive at airport; with green case; filled with drugs; cops watched him meet second man and place case in taxicabs trunk; and drive away; c o Stopped cab a few blocks away; opened trunk; and case without warrant. Here; cops had probable casue to serach a specific container HOLD: a suitcase taken from car stopped on rd. is not necessarily attended by less privacy than when taken from other places. Thus, the reasons for not requiring a warrant for a car serach do not apply to personal luggage taken by cops from cars. NOTE 8: Relative 4th worthiness of different containers

Sanders Not all containers and packages deserve full protection of 4th. o EX: Plain view Kit of burglar tools, gun case However, all containers are treated alike and the court has refused to draw distinctions between worthy and unworthy NOTE 9: Coincidental Containers US v. ROSS: cops had p.cause person selling drugs from trunk at X location. o Searched car/trunk; found brown bag. Opened no warrant found drugs. HOLD: A warrant to serach a car would support a serch of every part of the car including containers therein which might contain the object of the search. Thus, the court reasoned that this rule should apply to warrantless car searches. When cops have p. cause to search a car without a warrant under the Carrol-Chambers-Carney line of cases, they may also serach any container found during the car search that is large enough to hold the evidence they are looking for. CALIFORNIA v. Acevedo - See 294/295 for rules FACTS: Police saw place bag in the truck and had probable cause to believe that bag contained contraband. HELD: On these facts, the police had probable cause to search only the trunk to look for the paper bag. i. Also, once the police discover the criminal evidence, the search must STOP! So in Acevedo, once bag found, police cant continue searching for other evidence. ii. Police may not search any portion of the vehicle that could not contain the object of the search. iii. Therefore, police may wait for package to enter car and then search w/o warrant (A) California v. Acevedo (1991, Blackmun) CA police received call from Hawaii that package was seized containing MJ and that they were going to send it to the police. Police sent it to FedEx and when the came to pick it up and threw it into his car, arrested him and searched the trunk and the package. 1. The search was permissible and therefore inadvertence is no longer required (B) Dissent (White, Stevens, Marshall) b. Carroll v. United States- Court held that Police can search car without warrant because car, unlike home, is mobile. c. Chambers v. Maroney- Police seize the car so no exigent circumstances. But later search allowed because ct. said that exigent circumstances are to be determined at the scene of the seizure Avecedo says that with probable cause you can without a warrant, search for container you have p.cause to believe has drugs. And it does not extend probable cause to the entire car. Based on the search and the circumstances indicate whether or not the officer still has probable cause to search the entire car, if the container they had probable cause to believe contained drugs is in fact empty.

HYPO 299 B) you search open paper bag and find no drugs. Probable cause did not disappear because they did not find what they are looking for and thus, officer can keep looking. CLASS:
Carroll v. United States: A warrantless search of an automobile based upon PC to believe that the vehicle contained evidence of crime is valid o Search may be immediate or delayed United States v. Ross: Vehicle search exception could include a search of a container inside the vehicle when the search was supported by PC

CHAMBERS: The majority seems not to be able to decide whether or not a seizure of the car while obtaining a search warrant is or is not greater in terms of an intrusion of ones privacy rights as is a search of the car whereby the cops have probable cause to believe that evidence of the crime is to be found within.

4. Plain View and Touch Doctrines P299 Coolidge v. NH: = Plain View DOctrine Horton v. California 1990 ISSUE: From Coolidge v. NH Whether the warrantless seizure of evidence of crime in plain view is barred by the 4th if discovery of the evidence was not inadvertent? HOLD: Inadvertence is not a necessary condition. FACTS: armed robbery. Cop found p.cause search home for $ from crime and guns used Warrant: specified and authorized search for proceeds including specified rings. The magistrate issuing the search warrant did not believe that there was p.casue to serach for guns and stuff and thus, search for the guns were not included in the search warrant. o During search found machine gun; .38; two stun guns; cuff key; brochure for club victim was apart of; and clothes id by vic. Cop: testified during search fr rings he was interested in the items seized as well and thus, not found inadvertently to ring search. RULES: Search was Seizure and plain view If item in plain view no invasion of privacy o Seizure: of item invades more and into owners possessory interest Thus, plain view applies to seizures and not searches. Two Limitations: o 1. Plain View: alone is never sufficient to justify warrantless seizure o 2. Discover: must be inadvertent. Two Requirements: o 1. Incriminating character must be immediately apparent Immediately apparent: is essentially probable cause. Coolidge v. NH o 2. Cop must have lawful right to access the object I) Subj. intent to find item does not invalidate seizure if Search is confined by the terms of a valid warrant or a valid exception to warrant requirement in: o (a) area and (b) duration II) reason: warrant already needed or valid exception.

HERE: omitting weapons in the warrant did not enlarge scope of search. HOLD: 1: Items seized were discovered during lawful search authorized valid warrant. 2: They were immediately apparent to be found incriminating 3: Cop had p.cause. DISSENT: No reason absent inconvenience not. ARIZONA v. HICKS 1987 p305 FACTS: Bullet fired through apt; hitting/injuring man. Cops arrive. Enter looking for gun, shooter and weapons, Cops find sawed-off rifle and during search fin stocking-cap mask. Cops suspected two gloves were stolen and they took down serial number. While doing this he moved equipment around. o Cop notified that turntable was stolen in robbery and thus was seized. Later the serials numbers matched stolen goods. Warrant obtained and seized. RULES: The recording of serial numbers was not a seizure because it did not meaningfully interfere with the defendants possessory interest. Moving of equipment was a search distinct from lawful objective of entry o The officers taking action, unrelated to the objectives of the authorized intrusion, which exposed concealed portions of the apartment or its contents, amounts to an invasion of the persons privacy and was unjustified by the exigent circumstances that validated the entry. ISSUE: whether the search was reasonable. AND Whether probable cause is required in order to invoke the plain view doctrine. HOLD: It is. Because it is an extension of police power to make warrantless seizures in public places of such objects as weapons, contrabands i.e. items that are immediately apparent to be illegal. ANALYSIS: IF officer had p.cause to suspect stereos stolen would be justified. But officer stated only had reasonable suspicion o Exception: Where for example the seizure is minimally intrusive and operational necessities render it the only practicable means of detecting certain types of crime. Even though probable cause would have been necessary for a seizure Search of objects in plain view, HERE could be sustained on lesser grounds. DIST: from cursory inspections involves merely looking at what is already exposed to view without disturbing it. DISSENT POWELL: Sees the majority ruling as making a distinction between looking at objects in plain view and moving objects. DISSENT OCONNOR: PROFF See Terry Frisk (exam): The court asks whether the cops must have p.cause before either seizing an object in plain view or conducting a full-blown search of that object. OConnor would characterize it as whether cops must have p.cause before conducting a cursory inspection of an item in plain view. o Here: the court decides whether a cops reasonable suspicion is sufficient to justify that an item is immediately apparent and thus, whether this justifies a cursory examination of an item in plain view. PROF: Cursory inspection: is only supported by reasonable ruspicion. See terry. NOTES 2: (exam) Plain Touch: If officer lawfully pats down suspects outer clothing for weapons and feels an object whose contour or mass makes it

immediately apparent that the item is contraband, there has been no invasion of privacy, and if object is immediately recognized as contraband its warrantless seizure would be justified by the same considerations in the plain view doctrine. 5. CONSENT

SCHNECKLOTH v. BUSTAMONTE 1973 P311 EXCEPTION TO WARRANT: Exception to requirements of both warrant and probable cause is a search that is conducted pursuant to consent. FACTS: cop stops car; 6 people in it; headlights out; driver no license; asked to get out; then asked for permission to search car. Sure, go ahead. Cop: testifies no one was threatened prior to this time and driver helped by opening trunk and glove compartment. o Found stolen checks under seat from . RULES: When prosecutor seeks to rely on consent to justify lawfulness of search, they have burden showing that the consent was, in fact, freely and voluntarily given. ISSUE: What must prosecution prove to demonstrate that consent was voluntarily given. ANALYSIS: I: Court begins with cases re:14th Am confessions for purposes of defining voluntary. Standard 14thAm: Assess the totality of all the surrounding circumstancesboth the characteristics of the accused and details of interrogation. No matter how subtly the coercion is applied, the resulting consent would be no more than a pretext for the unjustified police intrusion against which the 14th amendment is directed. FACTORS: Subtly coercive police questioning Possible vulnerable subj state of consenting party o Consenting searches are a far cry from structured atmosphere of a trial where assisted by counsel a defendant is informed of their rights. ISSUE 2: Is consent a waiver of 4th and 14th amendment rights? RULE FOR FAIR CRIM TRIALS: To waive such rights the state must show an intentional relinquishment or abandonment of a known right or privilege. th DIF FOR 4 Amendment: People have a real interest in encouraging consent. o It would be unrealistic to expect that in the informal unstructured context of a consent search, a cop, upon pain of tainting evidence, could make the detail req. imposed by Johnson for Fair Crim Trials. HOLD: When the subject of a search is not in custody and the state attempts to justify a search on the basis of their consent, the 4th and 14th amendment require that the state demonstrate that the consent was in fact voluntarily given and not the result of duress or coercion, express or implied. Voluntariness: is a question of fact to be determined from all the circumstances Knowledge: Is not prerequisite to establish voluntariness. DISSENT: if consent means that a person has chosen to forgo their right to exclude cops from searching it follows that consent cannot be given unless the person knew that they in fact could exclude the police.

NOTES 7p321 prof exam: States burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A person may withdraw consent after it is granted unless their pre-withdrawal search gives independent grounds to proceed. NOTE 8. PROF enjoyed exam Can give limited consent. i.e you can search for x amount f time in the trunk o Florida v. wells

GEORGIA v. RANDOLPH 2006 P322 FACTS: Defendants wife came back from Canada with child. She complained that he had taken kid and used cocaine. Cops come ask to search NO; Wife said yes. o Wife showed cops coke spoon. PH: lower court held wife had power to consent. Ct AP reversed and sustained by ST Sup CT. ISSUE: Whether an evidentiary seizure is likewise lawful with the permission of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent, Whether a serach with the consent of one co-tenant is good against another standing at the door and expressly refusing consent. HOLD: A physically present co-occupant stated refusal to permit entry prevails, rendering the warrantless serach unreasonable and invalid as to him. A warrantless search of a shared dwelling for evidence over the express refusual of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident. Dissent: takes aim at the terms as to him RATIONALE: Nothing in social custom or its reflection in private law argues for placing a higher value on delving into private premises to serach for evidence in the face of disputed consent, than on requiring clear justification before the govt searches private living quarters over a residents objection. RULES: Voluntary consent can be given by an individual possessing authority. Can be householder against whom evidence is sought Can be occupant who shares common authority over property. MATLOCK: Arrest in yard of house he lived with a lady. Cops opened door and lady consented.. HELD: Consent of one who possesses common authority over premises or effects is valid against the absent non-consenting person with whom that authority is shared. RATIONALE: Third party authority rests on mutual use and not property rights. o If it is reasonable to recognize that co-inhabitants have the right to permit inspection in their own right and the others have assumed the risk. Shared tenancy is understood to include an assumption of risk on which cops are entitled to rely

MINNESOTA v OLSON: Overnight houseguests have a legitimate expectation of privacy in their temp rooms because it is unlikely that the host will admit someone who wants to see or meet with the guest over the objection of the guest. If it is a domestic dispute with an actual threat the cops can enter if they have good reason to believe that a threat exists First: Mutual use is tested based on Whether customary social understanding accords the consenting tenant authority powerful enough to prevail over co-tenants objection Second: If defendant (potential) is present and objects and has interest the co tenants consent does not suffice for a reasonable search. CONCURRENCE: Takes aim at bright line rule because Fourth Amendment is about reasonabless. DISSENT: Rule protects the person who is present but not the person taking a siesta. MAJ RULE: Creates an exception to the voluntary consent rule. A third party consent search is unreasonable and therefore constitutionally impermissible, if the co-occupant against whom evidence is obtained was present and objected to the entry and search. Dissent argues that different social expectations exist at different time based on different circumstances. Dissent/MATLOCK: assumption of risk is derived from 3rd partys joint access or control of shared property. And the court held that shared use of property makes it reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right.

CLASS: Georgia v. Randolph: underlying theme regards domestic violence. Prof 206 Illinois v. McArthur : premises can be secured whil warrant is being obtained.

ILLINOIS v. RODRIQUEZ 1990 p337 FACTS: cops called to home; female beaten; said beat her at a dif apt; She went w/cops to place; she used her keys and let them in; arrested him. RULES: Mattock common authority rests on mutual use Burden on state to show common authority. STATE ARG: Even if woman did not have authority to give consent, it suffices to validate the entry that the law enforcement officers reasonably believed she did. PROF: While she didnt have actual authority to consent as no joint access or control of the premises after moving out, but the officers REASONABLE BELIEF that friend had authority to consent validates the entry.

*Who Can Consent???

 Minor?: Court seems to P 344: REASONABLE CLAUSE: DIMINISHING ROLES OF WARRANTS & P.CASUE Terry & Camara: have allowed the 4th amendments sope to extend to govt activities like housing inspections. o PRIOR used reasonableness primarily to justify exceptions to warrant Frank v. Maryland: issue of whether the defendants conviction for resisting a warrantless inspection of his home violated the fourth amendment. o Held that if inspections like the one at issue were subject to full fourth amendment protections the serach would have to satisfy a warrant req. and thus, requiring one for housing inspections would impede the purpose of public health etc. TERRY v. OHIO 1968 p349 FACTS: convicted carrying concealed weapon. Cop testified he say defendant and had never seen them on his beat before. Saw them go into store and walk out again. Did this 6+ times. Then the walked off. Cop thought they were planning robbery. o Went up; told him he was cop; and asked their names they mumbled Then cop grabbed defendant and patted him down and found gun. ISSUE: whether in all the circumstances of this on the street encounter the defendants right to personal security was violated by an unreasonable search and seizure. Whether it is always unreasonable for a cop to seize a person and subject him to a limited serch for weapons unless there is probable cause for an arrest. ARG: differentiation between a search and a frisk and between a stop and a seizure IF STOP and FRISK give rise to P.Cause cops should be emplored to then make ARREST and SEARCH of person. RULES: Whenever a cop accosts an individual and restrains them of the freedom to walk away that person has been seized. Seeking to distinguish between stop/arrest and seizure/frisk: o 1: isolates initial contact stages between cop and person from any constitutional scrutiny HERE must test the conduct by the fourth amendments general proscription against unreasonable searches and seizures. FIRST: what were the interests which allegedly justified official intrusionupon the constitiuonally protected interest of the private itizen. balancing test from Camara. To do so the cop must be able to point to specific and articualabe facts which taken together with rational inferences from those facts reasonably warrant intrusion o Assesd from an objective standard: Would the facts available to the cop at the moment of the search or seizure warrant a man of reasonable caution in the belief that the action was appropriate? GEN RULE: When a cop is justified in believing that the individual whose suspicious behavior they are investigating at close range is armed and presently dangerous to the cop or to others it would be unreasonable to deny the cop

the power to take necessary steps to determine whether in fact the person has a gun and to neutralize the threat. o Search without a warrant for weapons must be limited to that which is necessary for the discovery f weapons which might be used to harm cop or others. RATIONALE: an arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons and the interests in each are different. Arrest: interests in laws of society and future interference with said individuals freedom whether or not trial or conviction ultimately follows Search Guns: is brief as opposed to an arrest in terms of intrusion upon sanctity of person and for protection. How Court Gets away with Probable Cause Requirement: Dif. Interests o Search incident to lawful arrest, is justified by any need to prevent the disappearance or destruction of evidence of crime. VS Terry Frisk o Frisk is justified based on the present situation in order to protect the officer and others which thus, must be confined in scope to an intrusion reasonably designed to discover weapons which the officer had reasonable suspicion to believe the person had and could use to harm him or others. HOLD: here cop was justified. TAKE-AWAY: Where a police officer observes unusual conduct which leads the officer to reasonably conclude in light of their experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior the officer: (1) identifies themselves as a policeman and (2) makes reasonable inquiries and (3) where nothing in the initial stages of the encounter serves to dispel their reasonable fear for his own others safety, he is entitled for the protection of themselves and others in the area to conduct a carefully limited search of the outer clothing f such persons in an attempt to discover weapons which might be used to assault them. This search is reasonable under 4th Amendment and any weapons seized may be properly introduced in evidenced. Concurrling Harlan: IF cop is justified to FRISK he must FIRST have constitutional grounds to insist on an encounter i.e to make a forcible stop. Would make more clear that right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime Where such a stop is reasonable, however, the right to frisk must be immediate and automatic if the reason for the stop is as here an articulable suspicion of a crime. CONC WHITE: Nothing prevents cops from asking questions but person is not obliged to answer and not answering is not basis for arrest although it may alert officer to the need for continued observation DISSENT DOUGLAS: Majoritys holding gives officers more authority than judge.

CLASS: (1) first there is a seizure of the person in that the person is seized by the officer or in other words the person is denied their liberties to freely leave or go about their business. After the seizure of the person and based on an officers reasonable suspicion, which must be based on articulable facts that reasonably lead to the belief that the person is dangerous, the terry frisk or

quasi-search occurs. The reasonable suspicion must equate to the instrusive nature and extent of the subsequent search. Do you need reasonable suspicion before the stop occurs or can you stop/ask questions and then develop reasonable suspicion?

Drawing Lines: Terry Seizures VS De Facto Arrests DUNAWAY v. NY 1979 p367 FACTS: robbery March; August jailhouse tip that Defendant did it; Cops not have suf. P.cause for arrest warrant Brought him in anyways. He would have been physically restrained if left. STATE ARG: The seizure did not amount to an arrest and was thus, permissible because the police had reasonable suspicion that Dunaway possessed intimate knowledge about a serious and unsolved crime. PRECEDENTS: Terry: recognized an exception to the requirement that the 4th amendment seizures of persons must be based on probable cause. Held that when necessary swift action predicated upon the on-the-spot observations of an officer on the beat and where the intrusion is less severe stop and frisk the court declined to extend the concept of an arrests and the general rule requiring p.casue. Seizures: so substantially less intrusive than arrests that the gen rule rule of p.cause is supplanted by a balancing test. HERE: State wants to use the Terry Balancing Standard for Custodial Interrogations ANALYSIS: Here not questioned briefly; taken straight from home to interrogation room. RULE: Application of 4th Amendments requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an arrest under state law. TAKE-AWAY: The standard to guide officers, who have only a limited time and expertise to reflect on is to balance the social and individual interests involved in the specific circumstances they confront. HOLD: When the officers seized the petitioner and transported him to station for interrogation the cops violated the 4th & 14th amendments because they did so without probable cause DISSENT: The defendant voluntarily accompanied cops to station to answer questions. Cops did not use physical force Cops did not show authority DISSENT ISSUE: Whether the cops conduct is objectively coercive or physically threatening, not on the mere fact that a person might in some measure feel cowed by the fact that a request was made by an officer. CLASS: Under Terry we assess the reasonableness of the seizure and the reasonable suspicion that the seizure is based on.

Dissent Cops did not have level of reasonable suspicion that would justify the seizure that occurred (i.e. taking petitioner into custodial interrogation) When are you allowed to detain? o Prof (exam) says that here the person because the reasonable suspicion was that he committed a robbery based on an anonymous tip meant that while they could not take him to the officer the officers could, under a Terry balancing analysis, stop the person and question him and prevent him from leaving. Dunaway does have the right to refrain from answering. Here the Terry requirement of dangerousness is not assessed and is not needed but what is important is that the officers have reasonable suspicion thus, the level of intrusion into his liberty would most likely enable the officers to merely stop them on the street. Thus, the correct analysis would be (1) was their a seizure and (2) was the seizure reasonable based on the reasonable suspicion. NOTES p370 #2: What if Dunaway was found on his front lawn and taken to a police cruiser? # 3: Florida v Royer: $$ for plane ticket; asked 4 ticket and took it without returning. Took him into interrogation room; got his luggage; searched; found weed. Held: The time the defendant produced the key to his suitcase, the detention to which he was then subjected was a more serious intrusion on his personal liberty than is allowable on mere suspicion of criminal acts. If there were reasons to move the defendant from the public airport space to a private space; aka security reasons and the like; they might have lessened the severity of the intrusion due to the circumstances. BUT nothing indicates that was so. The state did not mention whether or not there were alternatives i.e. could they have had a dog sniff serach for drugs. # 4: Pennsylvania v. Mimms: Traffic violation; Stopped; Asked to get out; Saw bulge; Frisked; was a gun. Held: Upon balancing the competing interests the court found that when an officer legally stops a driver on the highway, he may order the driver out of the car without further justification. The driver is being asked to expose very little more than already exposed. Passengers? On the public interest side of the balance the same weighty interest in officer safety is present regardless of whether it is driver or passenger On the personal liberty side of the balance the case for the passenger is stronger than that for the driver because while the driver has committed a minor vehicular offense there is no reason to stop/detain passengers. Maryland v. Wilson: Court held that because a passenger is inevitably seized when the driver is seized ordering the passenger out of the car was also too minor an intrusion to outweigh police safety. Length of Detention U.S. v. Sharpe: Court held that a twenty (20) minute detention of driver failed to meet terrys requirement of brevity.

Look at common sense in terms of how long the guy is stopped via Terry: Appropriate to look if the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly; If there were alternative means available did the police act unreasonably by failing to pursue them? Drug agent sees 2 cars, he radios for assistance, stops one, the other keeps driving but patrol car eventually stops the other, drug agent cant get someone to come watch the first guy to go see about the second guy, second guy detained 20 min; o No rigid time limitation on Terry stops, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern - VS Dunaway Court not relying on duration but other facts. Whether detention is 2 long in duration to justify as an investigative stop: Consider it appropriate to look at whether police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the D. o Whether cops diligently pursued a means of investigation that would lead to confirm or dispel their suspicions quickly Essential question is whether the police acted unreasonably in failing to recognize or pursue alternatives. Consent that comes after an unreasonable seizure is not consent.
Border Searches U.S. v. Montoya De Hernandez, p. balloon swallowing. Issue: Whether detention at border on suspicion of concealing drgs violated 4th Amendment. Holding: The Supreme Court held that the detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal; here, the facts, and their rational inferences, known to the customs officials clearly supported a reasonable suspicion that respondent was an alimentary canal smuggler.

U.S. v MENDENHALL 1980 p375 EXAM VOTES: FACTS: Flight land Detriot; Suspicious conduct; Identified as cops; asked for her ID ID name and Ticket name were different. Reason give she felt like it Cop testified she became extremely nervous when he said was narcotics cop. o Returned ID/Ticket; asked her to go to office for more questions o Consented to search Found ticket with third name. Woman cop arrives tells her about strip search Reveals heroin. ST ARG: the search was done pursuant to consent and thus was excepted from the requirements both of a warrant and probable cause. ISSUE 1: Whether conduct before defendants consent to the search was not voluntarily given and was the product of actions violative of the 4th amendment.

RULES: When a person is seized o A person is considered seized within the 4th Am when in view of the totality of circumstances surrounding the incident, a reasonable person would have believed they were not free to leave. EX: Threatening presence of officers Display of weapon by officer Physical touching of person Use of language or tone indicating that compliance is a must. HOLD: No seizure occurred ANALYSIS: Cops not in uniform; no guns displayed; did not summon but approached. Voluntariness of respondents response when asked to cooperate because her voluntariness does not depend upon her having been informed that she could deny. 2 Justices: saw seizure issue irrelevant because consent was given. PROF: U.S. v. DRAYTON Rule The Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and to refuse consent to searches. Facts. Respondents Drayton and Brown were traveling on a passenger bus that was stopped for a routine search by three police officers. Two positioned themselves up front; one proceeded down the aisle, engaging the passengers in conversation. According to his testimony, passengers were not required to cooperate. However, he did not inform the passengers of this fact. The respondents were seated next to each other. The officer informed them, in a voice just loud enough for them to hear, that he was part of an interdiction effort, and asked if they had any bags. When they indicated one above them, he requested permission to check it, which they granted. Finding nothing, the officer requested to check Browns person. Brown granted permission. During the pat down, the officer detected hard packages similar to those used to transport drugs. Brown was taken into custody. When the officer asked Drayton, Drayton raised his hands about eight inches from his legs. The officer found similar hard packages, and took Drayton into custody. Upon further searching, both respondents were found to be carrying sizeable amounts of cocaine. Issue. [W]hether officers must advise bus passengers during these encounters of their right not to cooperate. HOLD. No. Florida v. Bostick: if a reasonable person would feel free to terminate the encounter, then he or she has not been seized. A determination of when this is true necessitates a consideration of all the circumstances surrounding the encounter. The Supreme Court then held the erred Eleventh Circuit Court of Appeals when adopting the approach that the officer MUST warn the passengers that they may refuse to cooperate in an interdiction search. HERE: there was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice. The officers badge is not intimidating on its face, as officers wear uniforms, as well as side-arms. The officer at the front of the bus did nothing to intimidate passengers.

The fact only a few passengers have refused to cooperate does not suggest that a reasonable person would not feel free to terminate the bus encounter. DRAYTON ARG: after Brown had been taken into custody no reasonable person would feel free to terminate the encounter with the officers. The court held that the arrest of one person does not mean that everyone around him has been seized by police,, and that if anything, Browns arrest should have put Drayton on notice of the consequences of continuing the encounter by answering the officers questions. The search itself, under the circumstances, was voluntary. Dissent. J. Souter, joined by J. Stevens and J. Ginsburg, focused on the fact that the driver, after a scheduled stop, took the passengers tickets as they re-boarded, and then left the bus to allow the officers to search. As such, the respondents reasonably believed that they had no choice but to consent to a search. Discussion. In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. Police officers act in full accord with the law when they ask citizens for consent. It reinforces the rule of law for the citizen to advise the police of his or her wishes and for the police to act in reliance on that understanding. When this exchange takes place, it dispels inferences of coercion. Bostick TEST: would a reasonable person feel free decline the request or to leave the encounter P385 : If reasonable person would feel free to decline the officers request or otherwise terminate the encounter and the reasonable person is objected and presupposes and innocent person.

California v. Hodari its a stop if theres a show of authority, intimidating, threat, authoritative tone (stop! Police!) Non-seizure case: issue when was the defendant seized? i. if he was seized, there was no probable cause Scalia Majority defendant was not seized at the time he threw away the cocaine, so the cocaine was not fruit of illegal seizure (since police had not probable cause to seize Defendant before he tossed away the cocaine) Seizure means actually bringing Defendant within polices physical control (therefore Defendant was not seized until arrested/taken into custody) To hold otherwise would mean that there is a continuing arrest: during the period of fugitivity A seizure does not occur when Defendant does not yield to a show of force Take Away point: for a show of authority: ii. Application of force iii. Brandishing weapon iv. Stop-police v. Intimidating vi. Threat vii. Show of force viii. Authoritative tone Inverse Hordari: what if the police yelled halt and the defendant complied?

ix. no Supreme Court case yet, but lower courts held that there is a 4th

Amendment issue
x. Police shouting halt is an order not voluntary, different from

request
xi. Submission to a show of authority is a hallmark of a seizure

ALABAMA v. WHITE 1990 p396 FACTS: Anonymous tip; would leave x location; x time; in x car (taillights); go to y. All while in possession of about an ounce of coke in brown attach case. o Detectives followed up on tip o Confirmed start location o Watched it drive to the state location. Car stopped right before destination. Cop said stopped because suspicion of carrying coke. Asked to search She said he could look o Found brown bag; respondent gave combo Bag had weed and a little coke. ANALYSIS: 1. Anonymous Tip: Illinois v. Gates abounded two pronged test from Aguilar and SPinelli in favor of a totality of circumstances however, nothing that the veracity and reliability prong were still highly relevant. HERE: The anonymous tip provides virtually nothing from which one might conclude that the caller is either honest of the information reliable; further the tip provides no indication of the basis for callers predictions regarding the criminal activity. However, without more for a fourth amendment search would require more. But because we are dealing with a lesser standard, standard of reasonable suspicion to make a Terry Frisk, there are degrees of differences. U.S. v. SOKOLOW: Cop making Terry stop must be able to articulate something more than an inchoate and unparticularized hunch. The Fourth Amendment requires some minimal level of objective justification for making the stop. That level is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means a fair probability that contraband etc will be found and level of suspicion required for TERRY is much less. HOLD: When the officers stopped respondent, the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion that respondent was engaged in criminal activity and that the investigative stop therefore did not violate the Fourth Amendment. It is not unreasonable to conclude in this case that the independent corroboration by the cops of significant aspects of the informers predictions imparted some degree of reliability. o Here when significant aspects of the callers predictions were verified, there was reason to believe not only that the caller was honest but also that they were well informed, at least well enough to justify the stop. DISSSENT: anyone with enough knowledge about the person could have made these prediction. Under the majoritys holding every citizen is subject to being seized and questions by cops based on any officer willing to say they had

reasonable suspicion based on an anonymous tip predicting whatever conduct the cop just saw. NOTES: 4. Alabama v. White: reasonable suspicion was bolstered by fact that anonymous informant accurately predicted future behavior of suspect NOTES 5. Racial Profiling. U.S. V. Brignoni-Ponce: Car near Mexican border the likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor NOTES 6. Converting reasonable suspicion Arrest Hiibel v Sixth Judicial Dst Nevada: deputy dispatched report of assault on woman. o Found man drunk outside truck; woman inside;Cop asked man for ID. At least 11 times Hiibel refused to provide ID. Cop arrested him for willifully resisting, delaying or obstructing public officer in discharging or attempting to ddischarge any legal duty to his office. o However, In that case there was a Stop and identify statute. Stop-and-identify statutes: violate the Constitution if they are written so broad or vague as to give cops undue discretion in enforcement of law. RULE: An officer may not arrest a suspect for failure to identify themselves if the request for ID is not reaosnbaly related to the circumstances justifying the stop. Thus, if request for ID is reasonably related to the circumstances justifying the stop an arrest is proper if person refuses to provide ID

ILLINOIS v. WARDLOW 2000 p405 FACTS: cops saw respondent in high drug area. Saw he had bag. Turned to him. Defendant ran. When found him patted him down. Found gun. ISSUE: Whether the initial stop was supported by reasonable suspicion. The court expresses no opinion as to the lawfulness of the frisk independently of the stop. ANALYSIS: Factor: presence in area of expected criminal acts alone is not sufficient However, Fact that stop occurred in a high crime area is relevant upon consideration of the Terry analysis. o HERE: cops were also focused on the unprovoked flight upon noticing the police. RULES: Determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior HOLD: Here cop was justified in suspecting Defendant involved in criminal acts. PRECEDENT Florida v Royer: Where the court held that when cops without reasonable suspicion or p.caseu approach a person, the individual ahs the right to ignore. But unprovoked flight is simply not a mere refusal nor is it going about ones business. o In allowing detentions where conduct justifying the stop was ambiguous and susceptible of an innocent explanation the Terry rule accepts the risk that cops amy stop innocent people.

P.ARG: court to adop bright line rule authorizing temporary detention of persons who flee at sight of cop. D.ARG: ask court to conclude that that the fact that a person flees upon seeing cops can never by itself be sufficient.

MARYLAND v. BUIE 1990 p411 RULE: Protective sweep: is a limited search of premises, incident to an arrest and conducted tp protect safety of officers and others. o Limited to cursory visual inspection of those places in which a person might be hiding. ISSUE: What level of justification is required by the 4th and 14th amendments before officers, while effecting the arrest of a suspect in their home pursuant to an arrest warrant, may conduct a warrantless protective sweep of all or part of the presmises? FACTS: Armed robbery; one wore red running suit; same day cops get warrant to arrest Defendants home placed uinder surveillance. o Two days later cops execute warrant. Called home to ensure was home; Then 7 officers went inside. Fanned out; first and second floor. Cops yelled down to basement. Show hand Cops! o Defendant emerged. Cops then entered basement in case others there. Noticed red running suit in plain view and seized it. ISSUE MORES SPECIFIC: o What level of justification was required before cops could legally enter the basement to see if someone else was there. P. ARG: under general reasonabless balancing tests, cops should be allowed to conduct protective sweep whenever they make an in=home arrest for a violent crime. HERE: Officers were entitled to enter and search anywhere in home in which defendant might be found and once he was found the search was over and there no longer existed justification for entering rooms that had not yet been searched. ANALYSIS: In TERRYthe officers had an immediate interest protecting themselves. HERE officers have analogous interests in taking steps to assure that the house where suspect has been arrested is not harboring others who are dangerous. RULES: Incident to an arrest cops can as a precautionary matter and without probable casue or reasonable suspicion look in spaces immediately adjoining place of arrest where an attack could be immediately launched. The search must also be only a cursory inspection of those spaces where a person may be found [See Hicks] and the sweep lasts no longer than necessary to dispel reasonable suspicion of danger. o Beyond this immediate area there must be articulable facts which, taken together with rational inferences warrant a reasonably prudent cop in believing that the area to be swept harbors a danger. CONC: officers must have reasonable basis for believing their search will reduce danger. In other words their protective sweep must be protective DISSENT: Majority rule enables officers to enter any room where ambushers might be.

 While not a full-blown or top-to-bottom search the Dissent finds a protective search closer to a full blown search than to a Terry. NOTES:4 U.S. v PLACE Court extended Terrys analysis to property. Defendant acted sketchy in airport. Cops identified themselves; asked to search; Told him they were taking his bags; Subjected bag to dog sniff test. HOLD: Found that where the officers have articulable facts warranting a reasonable belief that a travelers luggage has drugs, the government interest in seizing the luggage briefly to pursue further investigations is substantial. Possessory interests can vary in intrusiveness, some brief detentions of personal effects may be so minimally intrusive of Fourth Amendment interests that strong countervailing govt interests will justify a seizure based only on specific articulable facts that the property contains contraband. RULE: When cops seize luggage from suspects custody, the limitations applicable to investigative detentions of the person should define the permissible scope of an investigative detention of the persons luggage on less than probable cause. Under this standard it is clear that the officers here exceeded the permissible limits of terry. Reason: the length was unreasonable and did not seek alternative means. Court hints that 90 minutes itself might be per se to long but that is not what Sharp says and there is no bright line rule for the amount of time under Terry. o The analysis is whether under all the circumstances it is reasonable and whether the police are seeking alternatives. DOG Sniff RULE: U.S. v. Place a dog sniff is not a search. Note 5. Car Frisks ISSUE: May the officers, short of probable cause, search a car to protect themselves from possible hidden weapons? Michigan v. Long (1983) : Driver pulled over Drunk; Cop saw hunting knife. o Conducted terry type search of car. Pennsylvania v. Mimms: Court held that an officer may order person out of a car during stop; frisk the person; and may frisk those persons. Reason inordinate risk confronting officers as they approach person seated in car. Adams v. Williams: Court held that cops acting on an informants tip may reach into passenger compartment t remove gun from drivers waistband even where gun was not apparent to cops from outside car and cops knew of existence of gun. HOLD/RULE: Cops may search inside car, limited to those areas which a weapon may be placed or hidden, if officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those acts reasonably warrant, the officer in believing that the suspect is dangerous and the suspect may gain immediate control of gun.

2. Reasonableness in a Special Needs (& non-criminal?) Context p421 Inventory exception S. Dakota v. Opperman(1976) Held that because inventories, thus not searches or a seizure in a criminal investigation, the warrant clause including the probable cause requirement do not apply. o The reasonableness clause alone must be considered and the court held that the police may inventory automonbiles under specified cirumstances in the absence of probable cause or reaonsable suspicion. Special Needs Exception Search/seizure fall within this exception when a perceived need, beyond the normal need for criminal law enforcement, makes the warrant and/or probable-cause requirements of the Fourth Amendment impracticable or simply irrelevant. o Standard: reasonabless balancing standard. Adminstrative Searches Camara v. Municipal court: court was looking at enforcement of housing code and safety code provisions affecting commercial buildings. Courts held that except in the event of emergency or consent, residences and commercial buildings may not be entered to inspect for administrative code violations with and administrative search warrant. N.Y v. BURGER: discuses owners of commercial premises wich are closely regulated and thus, have a reduced expectation of privacy. Where the privacy interests of the owner are weakened and the govt interest in regulating partiual businesses are concomitantly heightened, a warrantless inspection amy be reasonable within the meaning of the fourth amendment. In Burger the searches were conducted by COP not govt employees o Reasoning: court relied on the plain administrative purposes of the scheme to reject the contention that the statute was in fact designed to gather evidence to enable convictions under the penal laws Cops subjective intent irrelevant Only mattered was that the regulations had a nonpenal purpose. BIRTH OF SPECIAL NEEDS New Jersey v. TLO: Two public school kids caught smoking on school groundsl One denied; principal searched purse found cigs; rolling papers; lead to full search; weed given to police and used in suit against student. Warrant Requirement: court found the requirement to unduly interefere with the maintenance of the swift and informal disciplinary proceedings needed for school. Probable Cause; Public school teachers and administrators may search students without a warrant if: 1.There are reasonable grounds (need not be probable cause) for suspecting that the student has violated or is violating either the law or school rules.

2. Once search has begun the search must not be excessiveluy intrusive in light of age/sex and nature of infraction. Safford unified v Redding: 13 y/o girl made to strip serach bra. Hold: to far. AIRPORT SEARCHES: HYPO: person forgot ID and underwent more intense security. When wand buzzed at pockets and person said nothing was in pockets; told security he no longer wanted to board plane. Security refused to let him leave. Ningth Circ: held that it was a prober administrative search an thus, not dependant upon persons consent. Further, the scop of the search must be more extensive than necessary, inlight of current technology, to detect presence of weapons or bombs that is confined in good faith for that purpose.

MICHIGAN DEPT OF STATE POLICE v. SITZ 1990 p427 ISSUE Whether a states use of sobriety checkpoints violates fourth and fourteenth amendments. HOLD: Does not. FACTS: Advisory committee created guidelines for checkpoint operations. All vehicles going through selected sites were to be briefly examined. If booze, driver directed away from traffic; license etc. If needed more field tests. o 126 cars passed by. 25 seconds each; 2 drivers drunk; other drove through. PH: filed injunctive seeking declarotry relief from potential subjection to checkpoints. Lower Ct Test: Balancing: o (1) States interest in preventing accidents caused by drunk drivers. o (2) Effectiveness of sobriety checkpoints in achieving goal Here 1.6% of drivers were arrested. The record provides a rather complete picture of the effectiveness and thus, reason to sustain its constitutionality. o (3) Level of intrusion on individuals privacy caused by checkpoints. Court finds checkpoint no more intrusive than permanent checkpoints. RULES: A seizure occurs when car stopped at check point Analyssis is whether the seizuers are reasonable under the fourth amendment. To Gauge OBJECTIVE INTRUSION: By the duration of the seizure and the intensity of the investigation. SUBJCTIVE INTRUSION considers the fear and surprise engendered in lawabiding motorists by the nature of the stop. HOLD: Good law MARTINEX FUERTE BROWN v. TEXAS: appealant pedestrian stopped by in El Paso Texas that had high incidence of drug traffic o Cops say appellant stopped because looked suspicious

o Court stated in their finding that the cops stopped him without any reasonable suspicion that the was engaged in criminal activity: Consideration of the constitutionality of such seizures involves weighing (1) gravity for public concerns served by seizure; (2) degree it advaces public interest; (3) severity of intrusion with individual liberty. BRENNAN DISSENT: by holding that no level of suspicion is necessary before ops may stop a car essentially subjects the general public to arbitrary or harassing conduct by the police. Without proof that cops CANNOT develop individualized suspicion that person is drunk the checkpoints should be struck down. DISSENT TO PARTS I & II I. A motorists with notice of location of permanent checkpoint has opportunity to limit intrusion on their privacy. Here no such chance. Person surprised and may infer that cops are focusing efforts on them and others. o Unwanted attention from cops need not be because ones secrets are not the stuff of criminal prosecutions; and encounters may become unpleasant without good cause. II. No indication that the fraction of drunk drivers stopped by checkpoint is more than using other law enforcement tactics. o Takes up issue of Majoritys lack of focus on the citizens interest in freedom from suspicionless unannounced investigatory seizures. NOTES: Delaware v Prouse: Except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered stopping an automobile and etaining the driver in order to check his drivers licsense and the registration of the car are unreasonable under the fourth. This holding does not preclude states from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. CLASS: The discretion regarding which alternative and reasonable techniques the police could employ is not to be decided by the judiciary but by the legislative body. INDINAPOLIS v. EDMOND 2000 p432 ISSUE: Whether a highway checkpoint program whose primary purpose is the discovery and interdiction of illegal narcotics is constitutional. FACTS: 6 blocks Aug-Nov. 1,161 cars stopped; 104 arrested; 55 drugs; 49 not drugs. Overall rate of drugs found was 9%. o Set amount of cars stopped; 30 officers; one notifies driver of purpose o Checks ID; open view exam of car; dog walks around; o Directives instruct search only upon consent Or the appropriate quantum of particularized suspicion

Locations determined by crime stats and traffic flow. Michigan v. Stits: Different because HERE Daylight hours. ALSO lighted signs NARCOTICS CHECKPOINT X MILES AHEAD. UPHELD SUSPICIONLESS SEIZURES NY V. BURGER Administrative and inventory searches. Martinez Fuerte Border Patrol for illegal aliens o Tipped in Governments favor; o Emphasizing difficulty effectively containing illegal person at border. Michigan v. Stiz Sobriety checkpoint o Gravity of drunk driving o Magnitude of states interest in getting drunk drivers off the road. Delaware v. Prouse suggested ID verification would be permissible. o INVALID because was DISCRETIONARY Court suggested that questioning of ALL oncoming traffic at roadblock-type stop would be a lawful means of serving the legitimate state interest in highway safety. we have not upheld checkpoints to detect evidence of ordinary criminal wrongdoing only checkpoints whose purpose designed for public policy and safety reasons. P ARG: the purposes in Martinez: illegal aliens and Stitz: drunk driving are comparable. COURT: Ps argument rests on generalities. RULES: in determining whether individualized suspicion is requires, we consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue. o Fail to see connection between narcotics and traffic safety that was present in Stiz and Prouse o HERE Interest: To advance the general interest in crime control. HOLD: We decline to suspend usual requirement of individualized suspicion where the cops week to employ checkpoint for primarily purpose of investigating crime. Exceptions: 4th amendment would permit roadblock to thwart imminent terrorist attack. Or finding evading criminal. Whren: subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis, programmatic purposes may be relevant to the validity of 4th Am intrusions undertaken pursuant o a general scheme without individualized suspicion. o Purpose of suspicionless intrusions pursuant to a general scheme is important while reasonableness under fourth amendment is predominantly objective. NOTES 3: How far does Edmond Reach? Illinois v. Lidster: cops checkpoint to elicit info from motorosits about a fatal hitand run accident; occurred in roughly same location aweek earlier. Checkpoint caused heavy traffic. o Purpose obtain help solving a crime not to determine if drivers guilty. Here Distinguished from Edmond Hold: Good seizure. Cops did not discriminate in the stops NOTES 4: Drug Testing Skinner v Railway Labor: Upheld drug testing people involved in train wrecks Evidence of link btwn drug/booze and accidents. Employees Union Von Raab: upheld random drug testing of fed customs officers who have guns or involved in drug interdiction

Need to ensure that fed officers involved handing guns or investigating drug offensives to be drug free. Vernonia School District v Acton: upheld random drug testing of student athletes. TEST STANDARD: the nature and immediacy of the governments concerns regarding drug use. In some cases the court has found a compelling, substantial, or important govt or societal need for drug testing that could be accommodated by application of ordinary p.cause or reasonable suspicion standards. In each of these cases the court found that the indivdiuals had a diminished expectation of privacy by the virtue of the industry they were involved in. DRUG TESTS NOT ALLOWED: Chandler v. Miller: court ruled 8-1 that drug testing political candidates not fit closely enough because the court foun no special need for the testing nor was the test procedures designed to identify candidates who violate antidrug laws. Ferguson v. City of Charleston: Court invalidated a program to identify and test pregnant moms suspected of drug use Procedures: Hospital staff were to ID/assist pregnant patients suspected of drug abuse; chain of custody when getting urine to make sure could be used in subsequent criminal proceeding; Cops notified without delay and arrest positive person IF person who tested positive consented to substance treatment. HOLD: Policy requires notification to police or consent distinguishes this test from other cases. The difference lies in the nature of the special need asserted. Upheld tests purpose were divorced from States general interest in law enforcement. Here law enforcement is an indespendable feature.

Board of Education v. Earls (2002)

Students at Tecumseh School District had to consent to urinalysis testing for drugs in order to participate in any extracurricular activities. Two students brought suit. The Court held that, because the policy reasonably serves the School District's important interest in detecting and preventing drug use among its students, it is constitutional. The Court reasoned that the Board of Education's general regulation of extracurricular activities diminished the expectation of privacy among students and that the Board's method of obtaining urine samples and maintaining test results was minimally intrusive on the students' limited privacy interest. "Within the limits of the Fourth Amendment, local school boards must assess the desirability of drug testing schoolchildren.

A search or seizure can be reasonable as long as there are standardized procedures U.S. v. Lidster - in the roadblock context, a search is reasonable as long as the police are using standardized procedures United States v. Acton

balancing test looking at urinalysis of student athletes and whether it is reasonable. They said athletes have a low expectation of privacy because they are in locker rooms getting naked all the time. There is also a special need because there was a particularized problem where all the drug users in the school were the athletes. In response, the court upheld the policy that they would drug test the athletes in this particular school. NOTES 5: CLASS: 2/28 CHAPTER 5: Remedies For Fourth Amendment Violations A: STANDING B: EXCLUSIONARY RULE Before evidence can be exluded a court must determine whether the person seeking exclusion has standing to bring the fourth Amendment claim. JONES v US: The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were vilated by the serach itself, not by those who are aggrieved solely by the intordcution of damaging evidence. Coconspirators and codefendants have been afforded no special standing. Person must be victim of a serach or seizure directed against them Alderman v. US: Person has standing to contest electronic surveillance if: 1. govt agents unlawfully overheard that persons conversations, regardless of where they occurred. OR 2. if the conversations occurred on that persons premises, whether or not they were present or participated in the converasations. ATOMISTIC: Fourth Amendment protects a collection of individual spheres and interests of individual citens Whether an indivdiuals rights have been violated. REGULATORY: Fourth Amendment protects as a regulatory canon requiring govt to order its law enforcement procedures in a fashion that keeps us collectively secure against unreasonable searches and seizures. Whether the govt has engaged in an activity that, if left unregulated, would pose a threat to the security of people generally. RAKAS v. ILLINOIS 1978 p449 FACTS: Cop on patrol radio of robbery; description of getaway car given; stopped car All left the car; Then searched interior of car; found rifle shells o Shells were in glove compartment (locked) o Shotgun found under front passenger seat. seek to suppress rifle and shells arg. 4th am. Violation. Owner of car was driver. STATE ARG: petitioners lacked standing because they did not own the rifle/shells.

ISSUE: whether fourth amendment serves any useful analytical purpose to consider the standing issues as distinct from the emrits of a defedenants Fourth Amendment claim. ISSUE 2: Whether the challenged serach and seizure violated 4th Am rights of a criminal defendant who seeks to exclude it. ANALYSiS: Whether the search/seizure infringed a protected interest by the Fouth Amendment. Jones v. US: petitioner present when apt of friend searched. Friend had given him key Held; Persons wrongfully on premises not have standing Jones had a legitimate expectation of privacy in the premises he was using and thus, could claim furth amendment protections. HERE: Like Katz: we think that Jones on its facts merely stands for the unremarkable proposition that a person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable govt intrustion in that place. HERE: Petitioners argument must fail because they asserted neither a property nor possessory interest in the car no in property seized. - whether the passengers were legitimately on the premises is not determinative of whether they had a legitimate expectation of privacy in the particuarl aress of the car searched. HOLD: petitioners did not have any legitimate expectation of privacy. DISSENT: Marjoity have held that the fourth amendment protecs property because a legitimate occupant of a car may not invoke the exclusionary rule unless they happen to won or have a possessory interest in it. PROF: Seems like the majority is relying on katz when line drawing. Where did cops first arguably engage in unconstitutional conduct? o Footnote 17: The passengars are being said they did not claim a reasonable expectation of privacy underneath the passenger seat. The court says that they are arguing that they had a reasonable expectation of privacy in the car. Thus, the evidence stays in because they did not claim they did not have a reasonable expectation of privacy. And the court did not vacate and remand the case and made them eat their words to their own detriment. Thus, this case does not explore whether or not the passenger has a reasonable expectation of privacy underneath their seat.
1. Carter, p. 635 a. where Ds were doing business (or filling bags with crack) in someone elses home, the unreasonable search of that home via going up to the window wasnt something they could challenge b. Respondents here were not overnight guests but were essentially present for a business transaction and were only there for a matter of hours. c. Worker can claim 4 A protection over his own workplace: OConnor v. Ortega 1987 d. Scalia/Thomas concur: the case law gives short shrift to the text of 4 A and to the well and long understood meaning. Katz society prepared to recognize reasonability is uncannily like what members of the court think e. Kennedy concur: social guests have a legit expectation of privacy in a home, but these people had no meaningful connection to the owners home or expectation of privacy f. Ginsburg/Stevens/Souter dissent: this decision undermines the security of shortterm guests and the security of the home resident herself. doesnt agree tha t we

have a greater expectation of privacy when we place a call from public phone to persons home than when we enter persons home g. Breyer concur: didnt think the observation (made from public area outside the cartilage) was an unreasonable search and agreed with Ginsburg that they had standing to claim 4 A protection h. Difference b/t Minnesota v. Carter AND Minnesota v. Olson i. Legitimate purpose to be there v. illegitimate purpose to be there. ii. Ownee present v. not iii. Office v. not really an office iv. Longer amounts of time in the house v. Well, if youre the only person there you can exclude or invitewhereas in an overnight guest situation you arent 2. STANDING all together a. Only reasonable expectation of privacy standing. b. No derivative c. No target d. No automatic e. BUT overnight guests have reasonable expectations of privacy

NOTES: 1.Simmons v. US: When defendant testifies in support of a motion to suppress evidence on Fourht Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection PROF/CLASS: P 449 - since our cases generally have held that one whose fourth amendment rights are violated may successfully suppress evidence obtained in the course of an illegal serch and seizure misgivings as to the benefit of enlarging the class of eprsons who may invoke that rule are properly considered when deciding whether to expand standing to assert 4th

STANDING:::: Constitional rights are violated where the harm is done to that individual person, i.e to their things or home, where and when that person possessed a legitimate or reasonable expectation of privacy. An individual lacks standing when an officer illegal peers into a gap in a closed window blind and the individuals presence in the apt was strictly commercial and not as a social guest. [Minnesota v. Carter] An individual does have standing to challenge the constitutionality of a search where the individual was present as an overnight guest [Minnesota v. Olson] Cars: For any passenger, the reasonabless of their expectation of privacy would depend on such factors as the regularity of their presence in the car, their ownership of the car, and their relationship to the car owner. o [**read case exam** 469 Note Rawlings: person had stuff in womans purse. Court found that the person did not have standing despite owning the stuff in the purse because he did not have a reasonable expectation of privacy of his stuff in her purse.] Note 6:p467: Analysis;

1: do you have a reasonable expectation of privacy 2: what gives you a reasonable expectation of privacy: Factors: o Proeprty ownership o Whether defendant has possessory interest in the thing seized o Whether defendant has a possessory interest in the place searched o Whether defendant has the right to exclude others from that place o Whether defendant has exhibited a subjective expectation that the place would remain free from govt invasion o Whether the defendant took normal precautions to maintain their privacy.

Exclusionary Rule Purpose: Varies according to the nature of the right which has been infringed and the kind of evidence which has been obtained. Mapp v. Ohio: Applies Exclusionary Rule against state FACTS: 3 cops attempt to enter Mapps home by claiming info confidential informant. Force way in Search entire home and find porno in bedroom. o Charged with possession and control of obscene material. HOLD/RULE: All evidence obtained by searches and seizures in violation of the Constitition is, by the same authority, inadmsibble in a state court. - Seems like the Mapp court holds and thinks that the exclusionary rule is constitutionally required. Dissent: Thinks that the majority should have left it to the states to determine whether or not the exclusionary rule is constitutionally reuired instead of forcing it upon them. Downside of Exclusionary Rule o Reliable evidence is unavailable to prosecutor. o Public respect for justice suffers because of technicality. o Rule does not deter cops misconduct becase the exclusion occurs long after the conduct. For the exclusionary rule to apply the person searching or seizing must be the government or an agent of the govt. Thus, the rule applies to conduct by any state actor and is not confined to law enforcement. [Jersey v TLO: where the court found that a school principal must follow the Fourth Amendment] o Private Actors: Whereas evidence illegally obtained by private actors not acting in concert with cops is admissible. If police misconduct is not deterred by applying the exclusionary rule in a particular setting, the Court has stated that the rule should not be used because the social costs of the rules applications (i.e. some criminals will go free) are so great Grand Juries: Any incremental deterrent effect which might be achieved by extending the exclusionary rule to grand jury proceedings is uncertain at best. Thus the court in US v. Calandra: held the rule inapplicable by the court to the use of unconstitionally-seized evidence presented to a grand jury. o Court says the exclusionary rule is a judicially created remedy designed to protect constitutional rights. Despite its broad deterrent purpose it has never been described to proscribe the use of illegally seizued evidence in allproceedings.

 Janis: Court has never and it doesnt apply to civil proceedings. o Application of the rule has been confined to the arena in which it bests serves. Federal Habeas Corpus: The rule does not apply to fourth amendment claims raised in federal habeas corpus proceedings where the petitioner had a full and fair opportunity to litigate the issues in their prior State court proceeding. [Stone v. powell] Violation of Internal Agency Standards: Evidence obtained in violation of govt agency standards/rules rather than in violation of federal constitiional or statuory law does not meant he evidence will be excluded by the rule

Derivative Evidence Fruit Poisonous Tree Wong Sun v. US: Cops illegally entered defendants home, Defendant made a statement that lead to the disoery of drugs based on statement. o Held: The drugs because based on the defednants statements were inadmissible and also the statement was inadmissible but because it was derived from the illegal entry. Step-by-Step Analyssi: Fruits of Poisonous Tree 1. Does person have standing to challenge original violation? 2. Did the orgigninal official conduct violate persons rights? 3. Was the evidence sought to be admitted against the person? If any answer is NO then Fruits of Poisoins Tree analysis fails. Because the FOPT is an alternative means of suppressing evidence it can be benefiitial to defendants who lack standing to challenge the original violation. EX: Confession from codefendant A in reaction 2 illegal arrest of codefendant B. Codefendant B cannot directly attack the admissibility of As confession because B lacks standing. o However, under FOPT B can prevent admission of As confession because B does have standing to challenge Bs own illegal arrest, which violated his personal rights, and if B can show a direct link between Bs illegal arrest and As confession. Exclusionary Rule Exception GOOD FAITH US v. LEON: OBJECTIVE TEST: Whether a reasonably well trained officer would have known that the serach was illegal despite the magistrates authorization. In Leon the Good-Faith Exception only applied to defective search warrants and not warrantless searches. o LEION states that the Good-Faith Exception NEVER applies when: Magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was falce except for their reckless disregard of the truth. Where the issuing magistrate wholly abandoned their judicial role. An officer relied on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Depending on circumstances of the particular case a warrant was so ficially deficient (i.e. in failing to particularize the place to be searched or the things to be seized, the executing officers cannot reasonably presume to be valid.

o STATE LAW can REJECT ECXCEPTION Hudson v. Michigan: Court refused to apply exclusionary evidence rule in contest of a violation of the knock and announce rule. Cops searched home pursuant a warrant, waited 5 seconds after knock then entered. Cost-Benefit Test: the court note that the exclusionary rule should not be indiscriminately applied, but rather should be reserved for situations where its remedial objectives are though most efficaciously served, i.e., where its deterrence benfefits outweigh its substantial social costs. Rule does not apply to ecluded evidenced introduced by prosecution to impeach defendants credibility on cross examination [HARRIS v. YORK] The evidence must bear directly on the current charge. o Before using illegal evidence to impeach the prosecution must show that the statements were given voluntary. i.e not in violation of due process. Impeachment exception not apply to witnesses. rationale: the exclusionary rule is meant to deter police misconduct, not punish errors of judges and magistrates. There is no evidence to support a finding that judges/magistrates intentionally subvert the 4th amendment. In addition, there is no incentive for judges to issue warrants that they think will violate the 4th amendment, they are the neutral fact finders and have no stake in the outcome of a particular criminal prosecution LEON DISSENT: Dissent argues that when the judge stamps an ok or not they are playing with the fourth amendments role and engaging with the unreasonable search nd seizure. Thus, is it just the people engaging with it. Or is it the people within the judicial system PROF/EXAM: See Page 497 Massachusett v. Sheppard And Groh v. Ramirez Question is why in the one situation are the officers allowed to go ahead. Both situations there are defective warrants. - ** in Sheppard the cops take the affidavit with them along with the warrant. - The warrant however, did not include, the affidavit. - But the cops bring the affidavit which the magistrate relied upon when issuing the warrant. While the warrant did not specify the drugs to be searched. The affidavit did. The only things they sareched for twere the things contained in the Affidavit. o In GROH the affidavit is NOT brought with them. And there the warrant merely states that they can search thehouse. They only look for X and Y which was contained in the affidavit but the warrant does not specify these things. Warrant lets the person being searched that the serach is constitutionally approved. Or in other words provides person with some objective assurance that the search is legal. In GROH the warrant is so fatally deficient that it is almost not a warrant at all because it only ssays right to search the house.

Another way of distinguishing the cases is because from the persepective of the person the police do not need to have the warrant with them.

Independent Source and Inevitable Discovery DOCTRINES MURRAY v. U.S. 1988 p471 FACTS: Agents watching plaintiff and co-conspirators 1:45pm saw truck drive green camper into warehouse South Boston. o Drove out 20 min later. Cops saw two in warehouse and trctor trailer rig with container. Camper given to others who were arrested and weed inside After this info cops forced entry into warehouse. Found bales of marijuana. Cops Left without touching it and THEN APPLIED FOR WARRANT. o In applying for warrant they did not mention their entry nor did they rely on observations made during that entry. Warrant issued roughly 8 hours after initial entry. PH: District court denied arguments that warrant was invalid. First Circuit affirmed. RULES: Independent Source Doctrine Here issue is over the scope of the doctrine. General Rule: where an unlawful entry has given investigators knowledge of facts X & Y, but fact Z has been learned via other means, fact Z can be said to be admissible because it is derived from an independent source Specific Rule: Particular evidence that is acquired by an untainted search which is identitcal to the evidence unlawfully acquired P ARG: argue that it only applied to evidence obtained for the first time during and independent lawful search. D ARG: that the doctrine also applied to evidence initially found during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by initial illegality. COURT: Govts view has better support in law and policy. ANALYSIS: an officer would not without sufficient probable cause to obtain a search warrant have any added incentive to conduct an unlawful entry, since whatever is found cannot be used to establish probable cause before a magistrate. HERE: Knowledge of the marijuana was acquired at the time of the unlawful entry. Weed also obtained pursuant to the warrant, AND if this later acquisition was NOT the result of the earlier entry there is no reason why the indepdnent source doctrine would apply. IMP RULE HERE: So long as a later, lawful seizure is genuinely indepdentent of an earlier, tainted one there is no reason why the independent source doctrine should not apply. - This would not be the case if the cops decision to get warrant was prompted by what they had seen during illegal entry or if info obtained during that entry was presented to the magistrate ISSUE: Whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. HOLD: Vacate lower court. WONG SUN v. U.S.

1963 FACTS: Agents arrested Hom Way after surveiling him. Told cops Blackie Toy sold Cops went to plinatiffs business. Asked when he opens his Laundromat Said 8:00 agent said was narcotics officer. Pllaintiff slammed door and ran away Agents broke down door and followed [first illegality] o Toy pulled gun cops arrested him [second illegality] Nothing was found in the search RULES: verbal evidence which derives so immediately from an unlawful entry and unauthorized arrest as the officers action in the present case is no less the fruit of official illegality than the more common tangible fruit of the inwarranted intrusion. PROF: Illegality when they follow him down. Second: illegality is when the arrest him. - Cops use drugs seized at ANOTHER HOUSE to convict plaintiff. - The reason plaintiff has standing to object of the use of the evidence is because the evidence was derived from the initial police ilelgaility to HIM and then to the drugs. Thus, it is the fruit of the poisoins tree because it derives from the initial violation of Plaintiffs fourth amendment rights. - OTHER DEFENDANT WONG SUN does not get to object to the evidence because the evidence was obtained after he had been released on his own recognizance after a lawful arraignment and had returned upon his own free will days later to make the statement, which provided the connection btwn the arrest and the statements he had previously made had became so attenuated as to dissipate the taint Derivative Evidence Fruit Poisonous Tree Wong Sun v. US: Cops illegally entered defendants home, Defendant made a statement that lead to the disoery of drugs based on statement. o Held: The drugs because based on the defednants statements were inadmissible and also the statement was inadmissible but because it was derived from the illegal entry. Step-by-Step Analyssi: Fruits of Poisonous Tree 1. Does person have standing to challenge original violation? 2. Did the orgigninal official conduct violate persons rights? 3. Was the evidence sought to be admitted against the person? If any answer is NO then Fruits of Poisoins Tree analysis fails. Because the FOPT is an alternative means of suppressing evidence it can be benefiitial to defendants who lack standing to challenge the original violation. EX: Confession from codefendant A in reaction 2 illegal arrest of codefendant B. Codefendant B cannot directly attack the admissibility of As confession because B lacks standing. o However, under FOPT B can prevent admission of As confession because B does have standing to challenge Bs own illegal arrest, which violated his personal rights, and if B can show a direct link between Bs illegal arrest and As confession. Illegal arrest of T Ts statement Ys heroin Ts statement Ws arrest Ws statement
POs elicited an oral statement from Toy, after forcing entry into his laundry. The agents followed him down the hall to his bedroom, where they placed him under arrest. The Ct concluded

no PC for arrest. Toys statement led them to Johnny Yee who possessed narcotics. Yee said heroin was brought to him by Toy and Wong Sun. Then Toy led them to WSs house, and they arrested WS. They RORd him, and several days later he returned voluntarily to give an unsigned confession Conclusion: Ts statements that consequently led to Ys heroin should all be excluded since an Ts statements didnt result from an independent act of free will and not sufficiently an act of free will to purge the primary taint of the unlawful invasion.

returning voluntarily days later, connection btwn unlawful arrest and statement had become so attenuated as to purge the taint. both his declaration on the illegal break-in and the narcotics taken from Yee (who he declared to have drugs) had to be excluded as fruits of unlawful entry into bedroom; the question is whether granting the establishment of the primary illegality, the evidence has been come at by the exploitation of that illegality or if it was gotten by means sufficiently distinguishable to be purged of the primary taint? Home Way Blackie Toy (no illegality so far) James Toy Break down the door, found nothing, but arrested James Toy nonetheless (illegal search and arrest: fruit statement Johnny & address) Entry to Johnny Yees house (produce statement & drugs) Sea Dog Arrest Wong Sun (Sea Dog), but found no drug Toy, Yee, and Wong Sun were arrested. Judge released them on recognizance Fruit 1: Toys statement in bedroom (implicating Johnny Yee); and heroin comes from illegal arrest, so fruit is still on the tree (same event, no time lapse no attenuation) Fruit 2: Yees statement (fruit of illegal arrest) Fruit 3: Toys latter statement and Wong Suns later statement after being released Fruit 4: Wong Suns latter statement after being released fruit 3 and 4 are attenuated, because of the time lapse, and the defendants voluntarily came back to make the statement (intervening act of free will & voluntariness) Act must be purged of the taint of unlawful invasion s statements must be act of free will to purge primary taint of unlawful invasion. Need admission + evidence to corroborate not just admission o Criminal confessions and admissions of guilt require extrinsic corroboration Out of court declarations made after arrest may not be used at trial against of the declarants partners in crime No reference to Toy in Wong Suns statement constitutes admissible evidence corroborating any admission by Toy. Make sure to use proximate cause

HUDSON v. MICHIGAN

2006 499 ISSUE: Whether violation of the knock-and-announce rule requires the suppression of all evidence found in the search. FACTS: warrant for drug and guns search at home of plaintiff. Both found. The issue of fact is the method of entry. o Cops announced, waited 3-5 seconds, then opened unlocked door. COMMON LAW: cops must announce and provide residents opportunity to open door. WILSON v. ARKANSAS: exceptions to knock-and-announce rule 1. Reasonable Wait Time: When broken what is the REMEDY? WEEKS v. U.S.: exclusionary rule applies to evidence unlawfully seized from a home without a warrant in violation of the Fourth Amendment. SCOPE: Generally last resort because it creates policy: substantial social costs RULE: NOT: applicable upon but-for Fourth Amendment violation because it is too attenuated 1. Attenuated because causation is to remote a connection. 2. When despite direct causation the 4th Am interest protected would not be served by evidence uppression. o HARRIS: statements taken outside the house not serve purpose of the rule that made the in-house statement made while being illegally arrested because cops made arrest without warrant to arrest first REASON KNOCK-ANNOUNCE: 1. Protect life and limb. 2. Property 3. Dignity NOT REASON: preventing seizure of evidnce described in a warrant. HERE: Interest violated have no connection with evidence seizure. THUS: Exclusionary rule does not apply. Hudson v. Michigan: Court regused to apply exclusionary evidence rule in contest of a vilation of the knock and announce rule. Cops searched home pursuant a warrant, waited 5 seconds after knock then entered. o Cost-Benefit Test: the court note that the exclusionary rule should not be indiscriminately applied, but rather should be reserved for situations where its remedial objectives are though most efficaciously served, i.e., where its deterrence benfefits outweigh its substantial social costs.

Exceptions to the Exclusionary Rule

1

Inevitable Discovery - (Standard - Preponderance of the Evidence) Even if the search was illegal, if the police were going to find it anyway the evidence comes in. Christian Burial Ground - man confesses to where he buried his victim about an hour before the search party would have found her. Courts are unwilling to exclude this kind of evidence (Nicks v. Williams). Independent Source Doctrine - If you can articulate the fact that whatever you found was not a fruit of the poisonous tree. There is an illegal search, but the police find something else that is independent to the violation (like say, a stoner walks into the room with a bag of weed out not knowing the cops are in the house). Attenuated Source Doctrine - (Hudson) like proximate cause. There is too much in between the violation and the admissible

evidence. The court will consider the fragrancy of the initial violation, whether there are any intervening factors (free will), and the length of the causal chain. If you have to ask a ton of questions about it, its probably attenuated.

Hudson v. Michigan (2006) p.81 - Police execute a warrant by knocking on a door and only wait a few seconds before entering. Hudson moves to suppress his drugs and weapon arguing the premature entry (not waiting until he opened the door) violated his 4th Amendment Rights. Deterrence of forcing the police to wait is not enough to justify a rule against knock and announce. You would not have enough time to hide the contraband anyway. Court uses attenuated connection doctrine which doesnt make nearly as much sense as inevitable discovery, but alas. Herring v. United States (2009) p.94 - Cop sees guy who is a known criminal and asks the clerk to check for outstanding warrants. She finds one from an adjacent county so the cop pulls him over, arrests him, and finds meth and a pistol. Turns out the warrant was outdated and he should not have been pulled over. Court holds that there was no intentional act to violate his rights, and that the marginal benefits produced by suppressing the evidence cannot justify the costs of exclusion. If the database problem was more widespread, it would have been considered more in the decision. Devils Advocate: Suppressing the evidence would have deterred the police from keeping outdated records.
1. Hudson v. Michigan, p. 555 a. Supreme Court opinion b. Majority c. Justice Antonin Scalia, writing for the majority (54) with respect to Parts I, II and III of his opinion, held that evidence seized in violation of the knock-andannounce rule could be used against a defendant in a later criminal trial in comport with the Fourth Amendment and that judges cannot suppress such evidence for a knock and announce violation alone. Justice Scalia was joined by Chief Justice John Roberts, Justice Samuel Alito, Justice Clarence Thomas, and Justice Kennedy, who concurred in part and with the judgment. d. Unlike previous cases addressing the knock-and-announce requirement, the Court did not need to address the question of whether the knock-and-announce rule was violated, as the State of Michigan conceded the violation at trial. The question before the Court was regarding the remedy that should be afforded Hudson for the violation. e. The majority notes that the Court first adopted an exclusionary rule for evidence seized without a warrant in Weeks v. United States, which was applied to the states in Mapp v. Ohio, but points out that the exclusionary rule was limited by later decisions. After discussing these decisions, Scalia writes:

f. [E]xclusion may not be premised on the mere fact that a constitutional violation was a 'but-for' cause of obtaining evidence. Our cases show that but-for causality is only a necessary, not a sufficient, condition for suppression. In this case, of course, the constitutional violation of an illegal manner of entry was not a but-for cause of obtaining the evidence. g. Scalia distinguishes evidence seized in warrantless searches from evidence seized in searches that violated the knock-and-announce rule, noting that: h. [ex]clusion of the evidence obtained by a warrantless search vindicates [the] entitlement [of citizens to shield their persons, houses, papers, and effects, from the governments scrutiny]. The interests protected by the knock-and-announce requirement are quite differentand do not include the shielding of potential evidence from the governments eyes. i. The interests protected by the knock-and-announce rule, according to Scalia, are to protect police officers from surprised residents retaliating in presumed selfdefense, to protect private property from damage, and to protect the "privacy and dignity" of residents. Scalia says that the knock-and-announce rule "has never protected . . . ones interest in preventing the government from seeing or taking evidence described in a warrant." j. The majority opinion goes on to note that the costs of exclusion for knock and announce violations outweigh the benefits of admitting the evidence. Scalia states that the costs are small, but that "suppression of all evidence[] amount[s] in many cases is a get-out-of-jail-free card." The Court states that exclusion of evidence has little or no deterrence effect, especially considering that deterrents (a civil action against the police department and internal discipline for officers) already exist. Scalia ends the portion of his opinion which constitutes the majority opinion with praise for the "increasing professionalism" of the police force over the last half-century, which he says makes some concerns expressed in past cases by the Court obsolete. k. Kennedy's concurrence l. Justice Kennedy concurred in part with Scalia's opinion and concurred in the judgment that a violation of the knock-and-announce rule does not require a court to exclude seized evidence. Kennedy's concurrence emphasizes that the Court has not disregarded the knock-and-announce rule through its decision and that the exclusionary rule continues to operate in other areas of criminal law per the Court's precedent. Kennedy agrees with the majority that civil remedies and internal police discipline are adequate deterrents for knock-and-announce violations, but goes on to note that if a pattern of police behavior emerges that demonstrates disregard for the knock-and-announce rule, he would reevaluate his position. m. Dissent n. Justice Breyer, joined by Justice Ginsburg, Justice Stevens, and Justice Souter, dissented. Breyer begins his dissent with a rebuke of the majority opinion, o. In Wilson v. Arkansas, a unanimous Court held that the Fourth Amendment normally requires law enforcement officers to knock and announce their presence before entering a dwelling. Todays opinion holds that evidence seized from a home following a violation of this requirement need not be suppressed. As a result, the Court destroys the strongest legal incentive to comply with the Constitutions knock-and-announce requirement. And the Court does so without significant support in precedent. At least I can find no such support in the many Fourth Amendment cases the Court has decided in the near century since it first set forth the exclusionary principle in Weeks v. United States. p. Breyer goes on to examine the underlying case law, tracing the knock-andannounce rule to the thirteenth century, the writing of the Fourth Amendment, and the establishment of the exclusionary rule. q. Breyer says that the strongest argument for application of the exclusionary rule to knock-and-announce violations is that it serves as a strong deterrent to unlawful government behavior. At the very least, according to Breyer, eliminating the

exclusionary rule from consideration for knock-and-announce violations will cause some government agents to find it less risky to violate the rule. Pointing out that civil remedies are not an adequate deterrent, Breyer says, r. [t]he cases reporting knock-and-announce violations are legion . . . [y]et the majority . . . has failed to cite a single reported case in which a plaintiff has collected more than nominal damages solely as a result of a knock-and-announce violation . . . . [C]ivil immunities prevent tort law from being an effective substitute for the exclusionary rule at this time. s. Breyer notes that, in precedent, the Court has declined to apply the exclusionary rule only: "(1)where there is a specific reason to believe that application of the rule would 'not result in appreciable deterrence,' or (2)where admissibility in proceedings other than criminal trials was at issue" (citations omitted). The dissent states that neither of these exclusions apply to knock-and-announce violations. t. Breyer wraps up his dissent with a summary of his disagreement with the majority: u. There may be instances in the law where text or history or tradition leaves room for a judicial decision that rests upon little more than an unvarnished judicial instinct. But this is not one of them. Rather, our Fourth Amendment traditions place high value upon protecting privacy in the home. They emphasize the need to assure that its constitutional protections are effective, lest the Amendment "sound the word of promise to the ear but break it to the hope." v. [T]he Court should assure itself that any departure from that principle is firmly grounded in logic, in history, in precedent, and in empirical fact. It has not done so. w. II. Davis v. United States - "Searches conducted in objectively

reasonable reliance on binding appellate precedent are not subject to the exclusionary rule." If the statute has been overturned but a police officer is not aware of it, it will be considered a good-faith exception. Adds another good faith exception to the exclusionary remedy of the 4th Amendment.

CHAPTER 6: CONFESSIONS The Voluntariness Requirement: Torture and Confessions HECTOR v. STATE 1829 p529 Facts:

SPANO v. NEW YORK 1959 p150 Two Interests: 1. Societies interest in prompt and efficient law enforcement. 2. Socieities interest in preventing the rights of its individual members from being abridged by unconstitional methods of law enforcement. FACTS: 25 years old. Not high school grad. Record of regular empl. January 22, 1957 Boxer 200+ pounds took plaintiffs money at a bar. o Plaintiff followed to recover; fight broke out; kicked him head mult times.

Plaintiff vomited.. went home. Got gun. Went to candy store. Shot 5 times Two hit decedent. o Friends of decedent could not ID shooter. Febuary 3 Calls friend (soon to be cop) told him about shooting Feb 4 Questioning starts 7:15pm 11pm fed two sandwiches. o After five hours of questioning. Bruno eventually was called. Tells Plaintiff he should talk tells cops P wants an atty Testimony: Not sorry always pushing me HOLD: Plaintiffs will was overborne by: official pressure; fatigue; sympathy falsely from his friend. Undeviating intent of officers to get a confession; When such an intent is shown: the confession obtained must be examined with the most scruitiny. HERE: Massiah would hold here that the defendants sixth amendment rights were violated because he was ontinually refused his right to counsel Note 4: Involuntariness Factors Youth Mental Capacity Police Methods PROF: Due process violation Due process as back up Impeach vs not impeach Fruits dif for due process

MIRANDA DISSENT Justice Harlan 1966 P583 Part I: The thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect and ultimately discourage confessions altogether. the aim is toward voluntariness in a utopian sense DISSENT Justice White Part III: Majority views any in-custody interrogation as inherently coercive and that any spontaneous confession while confined and coerced will be deemed voluntary. THE DOCTRINAL REACTION TO MIRANDA: Clarifying Mirandas Status (1971) Harris v NY: Chief Justice Burder held statements taken in violation of Miranda could be used to impeach a defendants testimony. Justice Harlan: Ruled with the majority he must have believed that the impeachment issue in [Miranda] was part of Dicta. (1979) NJ v. Portash: Where the court held that statements taken in violation of the pure Fifth Amendment could not be used to impeach testimony.

A defendants compelled statements vs statements taken in violation of Miranda, may not be put to any testimonial use against the person ina criminal trial. Portash: Drew a distinction between: o A Miranda violation o And a violation of the constitutional privilege against compulsory self-incrimination in its most pristine form.

NEW YORK v. QUARLES 1984 P596 Public Safety Exception FACTS: 12:30 am Woman approaches cops car. Says raped by 6 black man, Big Ben printed on black jacket in yellow letters. Said man just entered store nearby Said man had a gun. o Went with her to store; saw man matching description; Man saw cops and then ran towards back of store. Cops chased with guns drawn. Told him to stop and put hands above head. o Frisked man; found empty shoulder holster; Handcuffed o * Asked where gun was man nodded and said guns over there. o Cops retrieved gun. Then formally arrested him and read Miranda rights. ** Man said would answer questions w/o attorney o Q. Do you own gun? Where did you buy it? o A. Did own it. Miami. PH: Excluded * guns over there because not give Miranda warnings before asking where gun was. Excluded ** as evidence tainted by prior Miranda violations. o App CT: Rejected exigent circumstance arguments made by State. HERE: Believe that concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda. RULES: In Miranda court extended 5th Amendment privileges to individuals subjected to custodial interrogation by the cops. The 5th Amendment alone does not bar all incriminating admissions Absent official coercion compelling self-accusation there is no violation by even the most damaging admissions. o BUT: Miranda found custodial interrogations inherently coercive. RULE: The MIRANDA WARNINGS are not rights themselves but: Are measures to protect the 5th Amendment right. HERE: Statements not compelled by cop conduct such that s will overcome. ISSUE: Whether cop was justified in failing to make available to the defendant the procedure safeguards associated with the 5th Amendment right against selfincrimination since Miranda. ANALYSIS: Factors Showing Defendant in Custody: o Surrounded by 4 cops; handcuffed when questions took place; o Nothing suggests Cops feared for their safety. HOLDING: Public Safety EXCEPTION to Miranda. Exception does not depend on cops motive.

o Rule/Exception: Miranda warnings are not required and the answers are not automatically tainted or excluded as evidence when: The cops ask questions reasonably prompted by a concern for public safety Factors For Exception: o Cops confronted with immediate necessity of finding gun because it could: Be taken by an accomplice; employee; customer. The social costs of giving the Miranda warnings are much greater moreso than merely failing to obtain evidence useful in convicting the defendant because it put the public in immediate danger. o Thus, The question was not to make a case against the defendant like the questions that the Miranda warnings come prior to but to insure that further danger to the public did not result from the continued concealment of the gun ina public area. Miranda: Court based decision on view that suspects already in custody when given Miranda warnings would reduce chance that the defendant would fall victim to constitutionally impermissible practices of cop interrogation in the already inherently coercive environment. Dissent(Miranda): Reduction in # of eople answering cop questions. HERE: Because the officer only asked a question necessary to locate the missing gun and after securing the loaded gun and then giving MIRANDA warnings did the investigatory questions aimed at secuing defendants convictions occur are the questions thereby permissible both pre Miranda and Post Miranda. DISSENT Justice OConnor o Justice OConnor would require suppressing the initial statements * because after Miranda the warnings are required. o Finds Public Safety Exception to confusing and blurs the lines to much. Because there is nothing about an exigency that makes custodial interrogation any less compelling, a principle Miranda warning requires the suppression of the statements. DISSENT Justice Marshall o III: The Majority turns against the rationale for Miranda Warnings (i.e. prevent coerced confessions in custodial interrogations) and invites the gobt to prosecute through the use of coerced statements. o Majority misread Miranda seeing it as a balancing act between the benefits protected by the Fifth amendment vs. the ost to society in terms of fewr convictions of guilty suspects. o Majoritys only contention is that cops could better protect public safety if Miranda did not apply BUT MIRANDA not about public safety o Miranda about coerced confessions. HERE: In the late of night, in the back of a store, surrounded by four cops, and handcuffed The first questions defendant asked is Where is the gun? Cop & defendant acting on instinct & was clearly coerced. NOTES: Agents relied on Quarles in questioning people re:terrorist type bombimg. NOTE 5:

OREGON v. ELSTAD 1985 p605 Subsequent Miranda Warnings ISSUE: Whether an initial failure of cops to administer Miranda warnings, taints subsequent admissions made after a suspect has been fully adbised and waived Miranda rights. FACTS: Home burglarized; Art and furnishings $150,000 stolen; Witness implicated Defendant 18 year old neighbor and friend of burgalized peoples son. Cops went to defendants home; Mother opened door; led cops to sons room; o Cops asked him to get dressed and come into living room. o Explained he had warrant for arrest. Asked defendant: If he knew why cops were there no If knew Gross (robbed family) Yes and heard they were robbed. When told he thought Mr Elstad was involved he said: Yes I was there o Dad comes home; Cops tell him about arrest; opens cop door and says: I told you that you were goin to get into trouble. You wouldnt listen to me. You never learn. An hour or more later at the cop station Mirandized. Defendant said he would talk and gave full statement. RULES: Wong Sung Doctrine: A confession obtained through custodial interrogation after an illegal arrest should be excluded unless intervening events break the casual connection btwn the illegal arrest and the confession so that the confession is sufficiently an act of free will to purge the primary taint Miranda Presumption: does not require that statements and their fruits be discarded as inherently tainted. - In the absence of coercion or improper tactics undercuts the twin rationales (trustworthiness) and (deterrence). - Once warned suspect free to decide whether or not to make a statement. It is an unwarranted extension of Miranda to hold that simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances to undermine suspects ability to exercise free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. o FACTORS: Admissibility of any subsequent statement should turn on: Whether it is knowingly and voluntarily made. The time that passes; Location changes; Change in interrogators All bear on whether the initial coercion has carried over into the second confession. RULE: Absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact hat a suspect has made an unwarned admission does not warrant a presumption of conclusion.

A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement should ordinarily suffice to remove the conditions that precluded admission. DISSENT Justice Brennan: Majority Rule: That the psychological impact of voluntary disclosure of a guilty secret neither qualifies as state compulsion nor compromises the voluntariness of subsequent confessions. So long as a suspect receives Miranda before further interrogation because of the fact that the individual is free to use their volition in deciding whether or not to make further confessions ordinarily is a sufficient cure and serves to break the causual connection. NOTES p630: What Elstad did not decide was whether physical evidence, as distinguished from a statement made by a third party (see Tucker p595) or another confession of the defendant (elstad) can be used in evidence if discovered because of the Miranda violation. U.S. v PATANE: PLURAL HELD The GUN (physical evidence) was admissible despite Miranda violation. Justice THOMAS: Miranda exists to protect violation of self-incrimination (5th Amendment), it is not implicated by admission into evidence of the physical fruit of a voluntary statement o Potential violations occur only upon the admission of unwarned statements into evidence AND the exclusions of unwarned statements is complete and sufficient remedy for unwarned statements J. Kennedy CONC: Used Cost-benefit balancing approach. o In light of the important probabtive value of reliable physical evidence, it is doubtful that exclusion can be justified by a deterrence rationale sensitive to both law enforcement interest and suspects rights during an in custody interrogation. J. Souter DISSENT: there is no way to read this case except as an unjustifiable invitation to law enforcement officers to flout Miranda when there may be physical evidence gained. o Attacks Majoritys failure to credit Mirandas presumption of coercion. By denying Miranda full constitional status the court could get five votes to admit the pistol. DICKERSON v. US 2000 p613 RULE: 18 U.S.C. 3501 18 U.S.C. 3501 Is a rule that the admissibility of Mirandized statements should turn only on whether or not they were voluntarily made. ISSUE: Whether 18 U.S.C. 3501 negates the constitionalal decision made by the court requiring Miranda warnings? HOLD: Miranda and its progeny in this Court govern th admissibility fo staetments made during custodial interrogation in both state and federal courts. FACTS: bank robber; conspiracy murder; firearms Supress statement made at FBI field office because not Mirandized. RULES: The court has supervisory authority over fed courts.

Courts may use that authority to prescribe rules of evidence and procedure that are binding. Congress retains ultimate authority to modify or set aside any judicially created rules of evidence and procedures that are not required by the constitution. o BUT congress may not supersede decisions interpreting and applying applying the constition., DISSENT J. Scalia o Marbury/Madison: An Act of Congress will not be enforced by the courts if what it prescribes violates the Constitution o Majority prescribes new principle that Acts/Statutes of Congress can be disregarded when what they prescribe contradict a decision of this court that announced a constitutional rule. Miranda: There is a difference between the traditional voluntariness test which was ignored in Miranda between (1) compelling a suspect to incriminate themselves and (2) preventing them from foolishy doing so. (2) is not required by the constitution. (and could explain the Courts inclusion of a right to counsel and that it be knowingly and intelligently waived. II: What makes something impervious to supersession by Congressional legislation is only that the Constitution requires the result that the decision announces and the statute ignores. By disregarding congressional action that concededly does not violate the Constitution the Court flagrantly offends fundamental principles of separation of powers and arrogates to itself perogatives reserved to the representatives of the people. III: What the court does today is to say the power of the Sup Ct to write a prophylactic extra-constitutional Constitution, binding on congress and the states. IV: The majority imposes its Court made code upon the States.

MISSOURI v SEIBERT 2004 p620 Midstream Warnings HOLD: A repeated statement after a warning (in these circumstances) is inadmissible. FACTS: Cops arrest defendant at 3:00am; Question her for thirty minute. o During 30 min initial interrogation obtained incriminating statements. o After short break cops administer Miranda o Then continue questioning. o Initial failure of Miranda was a deliberate technique to get incriminating statements then warn then have suspect repeat previous statement. didn't you already tell me that he was supposed to die in his sleep? HOLD (Plural): Deliberate questioning in succession before and after warnings required the warned statements to be excluded (absent curative measures). RULES: When Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and deprive a defendant of knowledge essential to his ability to understand the nature of their rights and the consequences of abonding them. DIF (ELSTAD): Where the initial unwarned statement was an innocent failure to Mirandize and then later cured as an unconnected set of questioning.

HERE: Unless curative measures are taken, such as a substantial break between the two interrogation sessions or an additional warning that the prewarning statements would be inadmissible. TEST: First: Whether cops deliberately flouted Miranda in 1st round of interrogation. IF YES the second confession can still be admitted if curative measures were taken. IF INADVERTENT Admissibility of post warning statements should continue to be governed by the principles of Elstad Kennedy CONC: Requires: Whether the cops deliberately employed two-round tactics DISSENT J. OConnor: Because the majority focuses on an expedition into the minds of police officers would produce a grave and fruitless misallocation f judicial resources. NOTES 4: Five Factor TEST FROM SEIBERT 1. Completeness & detail of questions & answers in the first interrogation. 2. Overlapping content of the two statements 3. Timing and setting of 1st & 2nd. 4. Continuity of police personnel 5. Whether questions treated second round as continuous with first. BERKEMER v. MCARTY 1984 p632 Miranda Custody FACTS: Cops pulled over car after seeing him weaving in and out of lanes. o Cop notice driver could not stand; concluded defendant 2be charged w/ traffic offense and his freedom to leave was terminated; Defendant not told in custody. BUT RULE: Cops subjective plan has no bearing on whether suspect is in custody. RULE: whether reasonable man in suspects position would have understood their situation. o Asked 2 do sobriety test Failed. Questioned two beers and a joint [slurred] o Then placed under arrest and taken to jail. o At station breathalyzer NOT detect booze. o Cop then resumed questioning in order to obtain info for State highway Patrol Alcohol Influence Report When asked about drinking (at Jail) I guess, barely Cop next asked about marijuana: Defendant wrote No angel dust or PCP in the pot. Rick McCarty o Never at any point told Miranda Rights. D. ARG: asks for an exception and exclusion when person arrested for a misdemeanor traffic offense and then questioned without Miranda rights. HERE: Cops are generally not 100% when arresting person whether or not a felony has been committed. AND creates Byzantine patchwork whereby seemingly small stops could escalate into investigations of more serious matters. ISSUE 1: Whether Miranda safeguards apply to custody for and interrogation about any crimes including minor traffic offenses/misdemeanors. HOLD: A person subjected to custodial interrogation is entitledz to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which they are suspected or arrested for. o HERE: Questions at jail are inadmissible because he was in custody.

ISSUE 2: Whether a roadside questioning of detained motorist pursuant to traffic stop constitutes custodial interrogation for purposes of doctrine in Miranda. ANALYSIS: Whether a traffic stop exerts upon a detained person pressures that sufficiently impair their free exercise of privilege against self-incrimination to require that he be warned of their constitutional rights. o Two factors mitigate danger of involuntaryily induced answers. o One: detention for traffic stop is temporary and brief. Expectation is that pulled over and spend only short time answering and waiting for cop to issue citation or allowed to go. Shows difference btwn normal interrogation o Two: Detention for traffic stop is not such that driver at mercy of cop. Traffic stop is a public thing reducing cops ability to force dirver into confessing. Shows that traffic stop is substantially less cop dominanted than the ones here. o HERE: stops analogous to Terry Stop Terry Stop If no probable cause but cop develops observations that reasonably lead to suspicion that particular person has committed/committing a crime cop may detain person briefly to investigate circumstances giving rise to suspicion. The scope of inuiry must be reasonably related in scope to the justification of the stop. Take-Away: D not taken into custody for purposes of Miranda until D was arrested. Thus, statements made prior to that point were admissible against D. NOTES 2: What if before sobriety test D asks My house is over there can I go tell my mother what is happening. Stone v. City Hunstville: D had been "seized" for Fourth Amendment purposes, he was not "in custody" for Fifth Amendment purposes when the field sobriety tests were administered; therefore Miranda warnings were not required. Although holding that traffic stops, like Terry stops, do not, as a general rule, require Miranda warnings in Berkemer: o "If motorist has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him `in custody', he will be entitled to the full panoply of protections prescribed by Miranda NOTE 4: D called asked where was good to meet; met at station; told not under arrest; taken into office; told suspect in burglarly Told D falsely they had fingerprints D confessed then allowed to leave Oregon v. Mathiason: held that finding the atmosphere a coercive on without any restrain on freedom of movement a person cannot be found to be in custody. Seven Members of the Court are in agreement as to what the test was. DISSENT 652: First way to deal with ambigious situations

WHAT IS AN INTERROGATION RHODE ISLAND v. INNIS 1980 p641 FACTS: Robbery and murder five days earlier. Placed in rear of cop car. o D heard cops say they should still find gun because school nearby. D tells cops he will show them gun. RULE: Any words or actions on the part of the cops (other than those normally attendant to arrest and custody) that the cops should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect rather than cops. COLORADO v. SPRING COP SILENCE NOT COERCION FACTS: Cops failed to tell D before waiver they planned to ask about old crimes as well RULE: Court here do not take cop silence as a form of coercion Because D was 1. Affirmatively warned Miranda that a waiver was for all crimes

WAIVER AND INVOCATION OF MIRANDA RIGHTS 1. Invocation of Counsel: Different from invocation of silence. o Cops barred from discussing and seeking waiver if COUNSEL NOT silence. 2. Accused Initiation: Cops may seek waiver after either type when accused initiates generalized discussion about the investigation 3. Unambiguous: invocation of either silence or of counsel must be unambiguous

NORTH CAROLINA v. BUTLER SSSKKIIPPEEEDDD 641-657

EDWARDS v. ARIZONA 1981 p658 FACTS: Complaint filed against Ed in state ct Charges robbery murder etc. Then Arrest: Warrant issues pursuant to that charge LATER THAT DAY o Then Station: Mirandized Ed waives rights gave alibi for defense Then deal Ed calls Lawyer deals off Questions stops Ed goes to county jail Next Day in Jail: Detectives show up Guard tells Ed he had to talk o Mirandized Ed listened to recording of accomplice implicating him Testify to Eds Statements Ed not want statement taped.

 Self incrimination* RULE: In order to Waive Counsel one must: 1. Do so voluntarily; and 2. Be a knowing and intelligent waiver of a known right/privilege Standard: depends upon particular facts and cirucmstances surrounding the case: Including background; experience and conduct. HERE/HOLD: When right to counsel is Invoked: Waiver: Not established through Miranda and cop initiated interrogation. Once COUNSEL invoked accused not subj to further questions until counsel made available or accused initates further talks. SHATZER: Custody invoke right to counsel TWO weeks can interrogate again. J POWELL CONCURRING: Doesn't like the exception where accused initiates. NOTES: INITIATION Initiation: Is a desire on the part of the accused to open up a more generalized discussion relating directly or indirectly to the investigation. Asking for a drink not constitiute initiation because they are routine incidents to custodial relationship. 665-667 CLASS BERHUIS v. THOMPKINS 2010 p667 FACTS: shooting in Michigan; one vic recovered and testified Tom: a suspect fled year later arrested in Ohio. o 2 cops travel to Ohio to question. Interrogate for 3 hours. Five Warnings: Tom read #5 (checking if literate) 4 read aloud. Tom not sign forms; Tom never says wants to be silent nor not want to talk with cops nor lawyer. o During three hours Tom said no more than yeah I don't know no Then: Believe in God? Pray he forgives you for shooting TOM(aka D) Yes not write looks away (D writes letter) ISSUE: Whether Toms silence for the 2 hours and 45 minutes prior to confession constituted an INVOCATION of right to remain silent. Or whether an accused to invoke right to remain silent must do so unambiguously Whether he was equivocating like a motha fucker. ANALYSIS: Objective standard requiring unambiguous invocation of right guides cops. HERE/HOLD: Because Tom never said lawyer he never waived rights. ISSUE II: Whether Tom WAIVED his right to remain silent by speaking. HOLD/RULE: Yes he waived them by speaking. 1. He read & understood the Miranda warnings. Awareness does not dissipate over time. 2. Cops are not required to reqarn suspects. 3. No evidence shows his answer was coerced. Not deprived sleep eating etc. Suspect is free to invoke or contradict waiver or rights at any time. Questioning allow accused to make informed choice to waive or not to waive. Majority: Fact that he spoke demonstrated waiver because his silence was not enough to invoke his rights. DISSENT: Rails against the majority saying that they require a person who wishes to retain their right to remain silent must do so by first speaking

Also must do so with sufficient precision that is construed in favor of cops thus waiver. and not be silent and speak with such precision to satisfy a clear-statement that their right PROF: Do cops need to know/have affirmative waiver before questioning can proceed, After this case the burden is switched around.

Interrupting Cops Before ALL Miranda Given SMITH v. ILLINOIS RULE: When a Ds invocation interrupts cops before Mirandized cops should stop. Rationale: Cops should not be allowed to ignore unambiguous invocations as if the D had requested nothing. Invocation BEFORE warnings No agreement between the courts McNeil v. Wisconsin: Courts have relied on dicta to NOT ALLOW invocation of Miranda right to counsel by anyone other than a person in custody Massiah v. United States (1964) FACTS: Massiah indicted narcotics charges and pled not guilty. o He was released on bond and met with his codefendant in a car. o The car was being bugged by the codefendant, and the police were listening in on the conversation. o The police convicted Massiah on the basis of the incriminating statements overheard with the transmitter. HERE: Federal agents deliberately elicited incriminating words from Massiah after his right to an attorney (6th Amendment) had attached. o He was more seriously imposed upon than even a prisoner in jail because he did not know he was under interrogation in the car. HOLD/REASON: The reason why this is a violation is because the information was elicited after Massiah had been arraigned.The government cannot deliberately elicit incriminating information from a defendant without an attorney. The right to counsel doesnt mean much if the defendant has already talked. You should be afforded counsel when you need it most. TAKE_AWAY: Other imporatant legal proceedings require right to counsel as well. Example any time state has taken positon against accused. DISSENT: If counsel was in car with with D. He would not have been deprived of Rights. Deliberate Elicitatoin: The Doctrine Evolves. U.S. v. HENRY: Indicted bank robbery and held in jail Agents working on robbery contacted inmate at jail Paid Informant Testfied at trial that Henry told him about robbery. o Nichols was told: be alert to statements. Not to question them about charges, but if they engage he should pay attention. Not to initiate convo.

HELD: This was a deliberate elicitation because even if agents statement that he did not intend to take affirmative steps he must have known that such was the likely result Kulhmann v. WILSON: It is not a Sixth Am violation by showing that an informant either through prior arrangement or voluntarily, reported incriminating statements. RULE; D must show that cops and informant took some action, beyond merely listening, designed to deliberately elicit statement.

BREWeR v. WILLIAMS FACTS:kidnaps and murders after escaping a mental hospital. Cops are transporting him to Des Moines, and at this time he has two attorneys that have told him not to speak with anyone, and the police agreed to comply. On the drive they start talking about giving the dead girl a proper christian burial, and the man confesses to where he put her body. th RULE: 6 Amendment right had attached. Court said they couldnt deliberately illicit incriminating responses from the defendant. Just like the 5th Amendment though, the defendant could have waived the right. If speech is deliberately illiciting incriminating statements, then its a violation of the 6th amendment. If it is not illiciting statements, its as though they were just driving and he started talking. The right is ultimately his to waive the right. HOLD/HERE The Court said he didnt waive his right because his actions were in reaction to the Christian burial speech. ANALYSIS: Miranda he was in custody and physical evidence comes in under Miranda (Patane the gun was admissible). The statements should not come in (under Miranda, but the body comes in). Although the State lost this case, the man was still convicted under the doctrine of Inevitable Discovery -- cops were walking in a chain across the field where the girl was buried and would have been discovered in about an hour. DISSENT: It is impossible to waive right to attorney until after seeing lawyer. NOTES: In Brewre the STATEMENTS were INADMISSIBLE But because under under Miranda the physical evidence is not thus, the BODY is ADMISSIBLE Waiver and exceptions to Massiah doctrine PATTERSON v. ILLINOIS RULES: Right to counsel attached, suspect hasnt retained or requested counsel: Knowing, voluntary, and intelligent wavier of Miranda rights suffices to waive 6th amendment right to counsel. Patterson v. Illinois (1988). Right to counsel attached, suspect has invoked right to counsel: Falls under Edwards rule of suspect initiating further conversations with police unless counsel is made available. o No public safety exception to right to counsel. Maine v. Moulton (1985): Police had public safety reason to listen in on Ds conversation, but still couldnt use statements made in absence of counsel related to charged conduct.

o Fruits of 6th amendment violations Statements obtained in violation of the 6th amendment are excluded. Whether fruits of statements obtained in violation of 6th are excluded is uncertain. Fellers v. United States (2004): Court left this question open. D questioned at home (deliberate elicitation) w/o counsel and w/o Miranda though had been charged. At jail, repeated statements after Miranda warnings. Waiver of 6th Amend right: Patterson v. Illinois RULE: Miranda warnings sufficiently appraise D of his right to an attorney and the is equal to a knowing and intelligent waiver of 6th A right. REASON: Court says that neither right is superior and that 6th A is not more difficult to waive than 5th A. Footnote 9: Holding does not mean that all 6th A challenges to conduct would fail if the conduct passed under Miranda. Example: Court has permitted Miranda waiver to stand where suspect was not told that his lawyer was trying to reach him during questioning. (Moran v. Burbine) In the 6th A context this would not be valid. PROF PATTERSON: Cops have right to approach suspect post indictment because sixth amendment right to counsel is waivable by the accused and not the defendant. Maine v. Moulton: (1985) RULE: Incriminating statements pertaining to pending charges are inadmissible at the trial of those charges, notwithstanding the fact that the police were also investigating other crimes, if, in obtaining evidence, HERE: the State violated the 6th A by knowingly circumventing the accused right to the assistance of counsel. FACTS: co-D cooperates with police and puts a bug in the phone. (both those two were charged in a car parts ring criminal conspiracy.) Co-D tries to get info about Ds plan to kill off a Witness. o D makes incriminating statements that make it easier for him to be prosecuted for the car parts crime he was already indicted for. HOLD: that the statements cant be used in the car parts trial but can be used if there is a killing-a-W trial. 5-4 Rule Massiah applies regardless of who initiates the conversation. US v. Henry: (1980) FACTS:Informatnt did not question D about the crime, but he was not a passive listener; rather he had some conversations w/ D while he was in jail and Ds incriminating statements were the product of this conversation. RULE:: Violation of 6th when agents intentionally created situation likely to induce D to make incriminating stmt HYPOS 1 Hypo: Could state put microphone in jail cell? Certainly a passive listener. Would this violate 6th Amend? 2 Hypo: Assume D had asked for counsel. Why no Miranda violation? B/c plant is not an officer. (Perkins).