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					                        CRIMINAL PROCEDURE OUTLINE
                            Northeastern University School of Law
                              Judge Isaac Borenstein, Professor
                                  Roy Karp, Summer 2001


                                          Summary
Step 1 – Was there a search within the meaning of the 4th Amendment?
   A. Was there State Action?
   B. Was there a reasonable expectation of privacy?

Step 2: Was the Search Unlawful?
   A. Was there a search warrant?
       1. Was the warrant valid on its face?
       2. Was Underlying Affidavit truthful? (Franks v. Deleware)
       3. Was the warrant executed reasonably?

Step 3 – Is there some exception to the warrant requirement?
   A. Emergency/Exigent Circumstances?
   B. Search incident to a lawful arrest?
   C. Search incident to a lawful field detention?
   D. Automobile Exception?
   E. Administrative Search?
   F. Consent/Waiver?

Step 4 – Was there a seizure of property within the meaning of the 4th Amendment?
   A. Is there evidence of a meaningful interference with possessory interest in property?
   B. Was there probable cause to seize the items?

Step 5 – Was there a seizure of a person within the meaning of the 4th Amendment?
Has there been a detention within the meaning of the Fourth Amendment?
What Type of Detention was it?
   A. Arrest?
   B. Terry-stop short of an arrest?
   C. Routine Traffic Stop?
   D. Suspicionless Stop?

Step 6 – Does the Defendant have Standing to raise a Fourth Amendment claim?

Step 7 – Can the evidence be suppressed?
   A. Does the Exclusionary Rule Apply?
   B. Is there some Exception to the Exclusionary Rule:
       1. Good Faith Exception
       2. The Impeachment Exception
       3. Inevitable Discovery Exception



                                               1
Step 1 – Was there a search within the meaning of the 4th Amendment?

   A. Was there State Action?
      Coolidge Test: Can the private actor, in light of all the circumstances, be regarded as
      having acted as an instument or agent of the state when he produced the evidence?
      Facts: Coolidge's wife handed over husband's belongings during investigation.
      Holding: No state action b/c no evidence of coersion by the police (they were courteous)

   B. Was there a reasonable expectation of privacy?
      Katz Test:
         (1) Was there a subjective belief that the area (or behavior) was private?
         (2) Is society prepared to recognize this area as a protected zone of privacy?

      Plain View Observations:
      Horton: Police may seize an item left in plain view if they were lawfully in the place
      where the item was seen from. SC does away with the inadvertency requirement holding
      that the subjective belief of the officer is irrelevant. Ask only if the plain view
      observation was reasonable, not if the officer did not subjectively believe that the items
      would be found.

      Trash: No reasonable expectation of privacy

      Phone Company Records
         Smith: Record of your phone number and calls made kept by the phone company
         does not carry any expectation of privacy.

      Bodily Fluids
         Schmerber: At request of the police 's blood was taken by doc's at hospital after
         auto accident which they had probable cause to believe was caused by drunk driving.
         Holding: This constituted a search and seizure.

      Flashlights/Illumination: Not a search.

      Drug Dogs
         Place: Drug dogs sniffing luggage exposed to the public did not constitute a search.
         Minimal intrusion; only going to uncover criminal activity.

      Searching Seized Items:
         Chadwick:
         Facts: Footlocker seized at Amtrak station after drug dog detection of drugs; the
         locker was taken into police custody where it was searched wihtout a warrant.
         Holding: Police need a warrant to search inside items in their exclusive control.

      Testing Seized Items
         Jacobson: Testing of items lawfully seized does not constitute an sep. search.




                                                2
       Open Fields Doctrine
          Oliver: Based informant's tip, police entered onto 's property (despite 'no
          trespassing' sign) and found a marajuana field. They then got a warrant.
              (1) No expectation of privacy in open fields beyond curtilage of home.
              (2) Observations made from open fields may be a search but will not
                  be supressed.
              (3) Factors to consider are the framer's intent, uses of the area; and the societal
                  understanding that such areas deserve protection?
          Protected Curtilage (Dunn)
          Factors:
              1. Proximity of the area to the home?
              2. Enclosures?
              3. Uses of the area?
              4. Other measures taken by owner to protect privacy?
          Structures on Property
              – Police still need a warrant to search structures on the property;
              – Such a warrant could be obtained based on plain view observations
                made from the open fields, but not from the curtilage.
          Aerial Observations
              General Rule: the home and curtilage are not protected from inspection that
              involves no physical intrusion. (Riley)
              – Aerial photography is not a search (Dow Chemical)
          "Rare Devices"
              Karo: Beeper used to obtain evidence that could not be obtained by aerial
              observation did constitute a search
              Holding: Police cannot use "rare devices not readily available to the public"
              without first obtaining a warrant.

   IF NO to Either, then the 4th Amendment does not apply.
   IF YES to Both  Go to Step 2  Was the Search Unlawful?


Step 2: Was the Search Unlawful?
General Rule: For a search to be reasonable under the 4th Amendment, the police must have a
warrant issued by an neutral and detached magistrate that is based upon probable cause.
Probable Cause: "Based on all the facts and circumstances there was reason to believe there was
a fair probability that evidence of a crime would be found."
    A. Was there a search warrant?
          Note: A search warrant carries with it the right to secure the house to be searched
                and to temporarily detain the people inside it.
                An arrest warrant however does not come with an implied authority to search
         IF YES:
            1. Was the warrant valid on its face?
                a. Neutral and Detached Magistrate?
                     – AG cannot sign off on warrants. (Coolidge)
                     – Magistrate cannot come along during the search.



                                                 3
   b. Did the Affidavit support Probable Cause?
      Based on all the facts and circumstances would a reasonable person believe
      there is a probability that evidence related to the crime is present at the location
      to be searched?
      Aquilar/Spinelli Test:
          1. Affidavit must adequately reveal the basis of knowledge; and
          2. Affidavit must provide facts establishing:
                the veracity of the affiant's informant OR
                the reliability of the informant's report in this particular case.
            Factors to determine veracity:
                – Sufficient detail
                – Independent Corroboration
            Police Affiant: While presumed to be believable and reliable, it cannot be
            conclusory and must provide the basis of knowledge.
      Illinois v. Gates: "Totalitity of the Circumstances Test"
      Facts: Conf. letter saying the Gates were sellign drugs; described Police
          – Probable Cause must be determined based on the totality of the
            circumstances, balancing all indicia of reliability.
          – Aguillar/Spinelli Test is held to be too rigid and technical, but remain
            factors for determining PC.
          – Gives far greater deference to the magistrate.

   c. Particularity Requirment
       Did the warrant describe with particularity the area to be searched and the
        persons or things to be seized?
       "Particularity" does not mean mathematical exactitude  it means the
        "reasonable ability to determine where the search is to take place and the
        items to be seized.
        Marron: Police cannot have total discretion over what they may seize.
        ie.– General Warrants are not permissable.
        Stanford: Seizure of all communist literature, books, pamphlets, cards, etc.
        held to be too broad (really a First Am. case)
        Stanley: During search for evidence of bookmaking, the police watched
        obscene films they found. Conviction rev'd on other grounds, but Stewart's
        concurrence pointed out that the search went too far.
        Andressen: Ct. upheld broadly worded warrant for evidence of fraudulent
        transfer of funds. More leeway when police are searching for a paper trail.
        Garrison: "3rd Floor Apt."  In hindsight ths was too broad but Ct. must
        judge the constitutionality of their conduct Reasonabl

2. Was Underlying Affidavit truthful?
   Franks v. Deleware:
   Holding: Affidavit is presumptively valid but 's are entitled to a hearing where
   they have made a substantial showing that:
   (1) a false statement knowingly, intentionally, or with reckless disregard for the
        truth was included in the warrant affidavit and
   (2) the allegedly false statement is necesary to the finding of probable.


                                      4
          Burden of Proof:
              At the hearing,  must prove allegation by a preponderence of the evid.
          Informant's Identity  very difficult for  to attain.
              McCray/Roviero:
              "When the facts show the informant may have information bearing on an
              accused's guilt or innocence." (seems broad but read very narrowly)

   3. Was the warrant executed reasonably?
       a. Was the Warrant executed reasonably?
            Garrison: "3rd Floor Apt."  Police stopped search imedietly
       b. Did the officers "knock & announce"?
            Wilson: Read K&A into the 4th Am.
                – Reduces risk of violation of privacy, property damge, and of violence to
                  both the police and bystanders.
                – Evidence may be excluded by state statute (eg.- NYS)
            IF NO  Is there an exception to the K&A requirement?
                – Waiver of K&A in the warrant itself?
                – Exigent circumstances? (Sabbath)
                    Rationals:
                        - Destruction of Evidence
                        - Threat of violence to officers or others
                    Standard: "Reasonable Suspicion"
                    Richards: No per se exigent circ. for drug offenses.
       c. Did the police go beyond the scope of the Warrant?
            Police can only look in places where the items could reasonably be found.
                eg. – Police may look virtually everywhere to find small rings;
                eg. – Police may not look in a jewelery box to find guns.
       d. Was execution of the warrant unreasonably delayed?
            – Mass: 7 Days old is presumptively invalid.
            – Fed.: 10 Days.
       e. Inventory of items seized?
            – By state statute, police may be required to keep an inventory of all
              items seized and/or bring items before the issueing magistrate.
            – No exclusionary rule under 4th Am. (Cadi)
       f. Time of day?
            – Daytime is preferred, but nighttime can be obtained for reasonabel cause.
            – Governed by statutes and court rules
                eg.– FRCP 41(c)(1): Should be in daytime but can be

IF NO WARRANT, Go to step 3  Exceptions to the warrant requirement.




                                        5
Step 3 – Is there some exception to the warrant requirement?
General Rule: The government has the burden of proving the existence of an exception by a
preponderance of the evidence.

   A. Emergency/Exigent Circumstances?
         1. Danger to the Officers
             Protective sweep of house for other persons for officer's safety.
             Vale: Continued to search after suspect was arrested and detained outside the
             house. Went to fare b/c emergency no longer existed.
         2. Hot pursuit
             Warden v. Hayden: More rushed, less surveillance, close on the heals of armed
             robbery suspect.
         3. Potential loss of evidence
             Shmerber: Blood test of DUI suspect at Hospital before evidence disappears.
         4. Securing the Premises
             Police can secure a house for a reasonable amt. of time to secure a warrant.
             Rawlings v. KY: Police went too far, detaining everyone at party.

   B. Search incident to a lawful arrest?
       Rationales:
           1. Safety of the officer; and
           2. Preservation of evidence.
       Chimel: Police may search "the area within the arrestee's immediete control"
       without a search warrant and without probable cause.
       Belton: Automobile Exception: Police can search entire inside of car, and items found
       inside the car, but not the trunk. Here, they searched closed zipper pockets of a jacket on
       back seat.
       Robinson: Search after stop for driving w/o license (show's breadth of Chimel)
       LaFayette: Police may conduct an routine inventory search at the station
       incident to a lawful arrest. (Some states require a written inventory policy)
       Buie: Protective sweep of imediate area of the arrestee.
       Rawlings: Search prior to arrest O.K.  close enough.
       Ybarra: Search of all persons in bar when arresting bartender was unlawful.

       There is No "Search Incident to a lawful citation:"
          Ohio v. Robinette (1996)
          Facts: Cop stopped  for speeding, ran license but found no priors. He then turned
          on a video camera, got  out of car and then searched the car after  consented.
          Found small ant. of pot and one pill.
          Holding: Police went to far! Where questioning during a routine traffic stop does not
          give rise to RS, the police may not reasonably ask for and execute an intrusive search.
          Knowles v. Iowa:
          Facts:  stopped for speeding, which he could have arrested for under Iowa law.
          Holding: No search incident to a lawful citation! Two rationales of "search incident to
          a lawful arrest" (Officer safety and preservation of evidence) are not present: (1)
          safety of officer can be protected by a Terry pat-down of the driver, passengers and
          passenger compartment; (2) no more evidence needed to prosecute the violation.


                                                6
C. Search incident to a lawful field detention?
    Terry: Police may conduct a brief pat-search for weapons if they have
    "reasonable suspicion that the suspect is currently armed and dangerous."
    Note 1: A Terry search is for the safety of the officers and does not authorize a
    search for evidence or to avoid the destruction of evidence.
    Note 2: To make a Terry stop at all, police need reasonable suspicion of crim. conduct.
    "Plain Feel Exception": If police lawfully pats down suspect and feels an object the
    identity of which is immedietly apparent then the office can seize as their is no invasion
    of privacy beyond the scope of the Terry search. (Dickerson)
    Michigan v. Long: "Terry-frisk" of a car;
    (Also, the search of the car can occur before the search of the driver.)
    Buie: Protective sweep of premises is allowed to assure there is no one else in the house,
    but not a full search, but it must be based on reasonable suspicion.

D. Automobile Exception?
   General Rule: A warrant is not needed to search a vehicle where there is probable
   cause to believe that it contains illegal contraband, even if there are no exigent
   circumstances.
   Rationales: (1) Lower Expectation of Privacy b/c cars are highly regulated and it is easier
   to see inside. (2) Cars are higly mobile/greater risk that evidence will be destroyed or
   moved (not cited frequently anymore)
   Auto Exception is one of four ways to search a car:
       1. Belton search incident to a lawful arrest.
       2. Terry search of passenger compartment for weapons. (Michigan v. Long)
       3. Plain view search.

   1. Search of the Car
      Carroll: Police searched car suspected of carrying alcohol during prohibition.
      Holding: Upheld warrantless search of car where there is probable cause to believe the
      vehicle is carrying illicit goods. Rationale focused on the mobility of cars.
      Chambers: Police do not need exigent circumstances to conduct a warrantless search
      of vehicle. (Rationale shifts to lower expectation of privacy.)
      Carney: Carroll applied to a Mobile Home, but Ct. noted that the result may be
      different where the home is on blocks

   2. Containers in the Car
      General Rule: If police have Probable Cause to search the entire car or a container
      w/in the car, they do not need a warrant, although PC to search container does not give
      PC to search rest of car.
      Chadwick- Sanders Lines: PC that container within car has evidence where car is
      only ancillary to the crime does not give PC to search the car.
      Carroll-Ross Line: PC that there evid. anywhere in the car and the car is being used for
      illegal activity is PC to search anywhere in the car as well as containers in it.
      Acevedo (SC Abandons the Chadwick-Sanders Line)
      Holding: As long as there is PC to believe there is evidence in a container inside a
      car, police can search the container even if there is no PC to search the car. However,
      they cannot search the entire car.


                                             7
   3. Passengers & Passenger's Containers
      General Rule: Police can search containers of passengers if PC to search the car.
      Houghton: Upheld as reasonable a search of passenger's purse in back seat after
      observing syringe in driver's pocket.
      Rule: Passengers container/bags can be searched if there is PC to arrest the driver OR
      PC to search the car.

   4. Inventory Searches
      General Rule: Police do not need a warrant to conduct an inventory search that are for
      regulatory purposes and not to search for evidence.
      Rationales:
           1. Protection of owner’s property while it remains in police custody
           2. Protection of police against claims or disputes over lost or stolen prop
           3. Protection of police from potential danger.
      Opperman: Upheld warrantless inventory search of car towed for multiple parking
      violations that was conducted pursuant to a written police policy.
      Cooper: When officers have PC to believe that a vehicle is subject to forfeiture under
      statutory law they may seize and hold it pending the completion of judicial forfeiture
      proceedings.
      Bertine: Upheld police invetory of car aftern arrest of DUI suspect but before tow
      truck arrived which revealed backpack containing drugs. Police follwoed a standard
      policy and no showing of bad faith.
      Wells: SC held unreasonable a search of a a suitcase found in an impounded car b/c
      not executed pursuant to an established policy

E. Administrative Search?
   General Rule: Need an administrative warrant.
   Exception: For "highly regulated industries"
   Burger Test:
   Threshold Question: Is the industry highly regulated?
      – Comprehensive Statutory/Regulatory scheme?
      – Licences/Fees?
      – History of gov't regulation of the industry?
      IF NO  No administrative search exception.
      IF YES:
          1. Is the government interest substantial?
          2. Are warrantless searches neccessary to further the scheme?
          3. Constitutinally adequate substitute for a warrant?
              a. Notice?
              b. Properly defined scope?
              c. Limited discretion of inspecting officers?




                                           8
F. Consent/Waiver?
   General Rule: If effective and voluntary consent to search is given, there is no
   requirement of probable cause or reasonable suspicion.
   Notes:
    – One can limit the scope of a search conducted undet consent.
    – One can consent expressly or impliedly.
    – One waives some 4th Am. Rights when entering certain public buildings.

   1. Was the Consent Voluntary and Effective?
      General Rules:
        1. Cannot be made under duress.
        2. Issue for trier of fact decided under the totality of the circsumstances.
        3. Police do not need to inform indiv. that they have a right to deny consent.
     Factors:
        – Age
        – Education, intelligence, and cultural background
        – Time of day and
        – Length of detention
        – Number of police vs. number of suspects
        – Lack of information re: Rt. to withhold consent
        – Repeated and prolonged nature of questioning
        – Physical punishment –– food or sleep deprivation
        Bustamonte: No requirment that you know you have a right to withhold consent.
        Watson: Applied Bustamonte to consent of an arrestee.

  2. Did a Third Party Give Cosent?
     General Rule: Anyone who the police reasonably believe has common authority over
     the premises can give consent to a search. This allows for a good faith exception
     Matlock:  was arrested in yard and wife consented to search of their bedroom.
     Holding: Her status as wife and co-resident was sufficient to establish effective consent.
     Rodriguez: Cops mistakenly received consent to search from someone without
     common authority over premises.
     Holding: O.K. as long as the police acted reasonably
     Rule: Based on the facts available to the officer at the moment, would a person of
     reasonable caution believe that the consenting party had common authority over the
     premises?

  3. Did the Police Exceed the Scope of Consent?
     General Rule: Absent any limits or conditions, consent is deemed to be for a general
     search allowing police to search within the limits of reasonable cause.
     Jimeno
     Facts:  consented to search when pulled over for traffic violation; police found paper
     bag on the passenger side floor with cocaine in it.  Argued he did not give consent to
     search any bags/containers inside the car.
     Holding: It was reasonable for police to believe he gave consent to search bags.
     Unless suspect expressly says do not search X, consent will be interpreted as
     authorizing a general search.


                                             9
Step 4 – Was there a seizure of property within the meaning of the 4th Amendment?
Police still need probable cause to seize items

What can the police seize?
   1. Propety that was Stolen
   2. Contraband
   3. Fruits or Criminal Behavior,
   4. Instuments of a Crime ("Burglarious Tools")
   5. Evidence of Criminal Conduct.

A. Is there evidence of a meaningful interference with possessory interest in property?
    Factors:
        – Length of time property is seized
        – Type of property

B. Was there probable cause to seize the items?
   Standard: "From all the facts and circumstances, would a reasonable person have
   probable cause to believe that the items are stolen, contraband, the fruits or criminal
   behavior, instuments of a crime or evidence of criminal conduct?"

   US v. Place:
   Facts: Police seized 's suit-case for 90 minutes at airport w/ suspicion it contained drugs.
   Holding: 90 minutes was an unreasonable seizure in the absense of probable cause.

   Seizure of Items in Plain View:
      1. Must lawfully be in the place where the observation is made.
      2. Must hace lawful physical access to the item.
      3. Must have probable cause to sieze the item.
      4. There is no requirement that the items be found inadvertently.
          Horton (1990, Stevens Plurality)
          Facts: Police had warrant to search for three rings, but during execution of the
          warrent they found weapons. In previous cases, the Ct. required that items not listed
          in a warrant that are found in plain view must have been found inadvertently.
          Holding: Police may seize an item left in plain view if they were lawfully in the place
          where the item was seen from. The Ct. does away with the inadvertency requirement
          finding that it relies too heavily on the subjective state of mind of the police officer.

   Destruction of property:
   Ramirez: O.K. if reasonable suspicion that situation was dangerous.




                                                10
Step 5 – Was there a seizure of a person within the meaning of the 4th Amendment?

Has there been a detention within the meaning of the Fourth Amendment?
   1. Would a reasonable person have felt free to leave?
       IF YES  There has not been a seizure! (Bostick)
   2. Has the suspect yielded to the authority of the police?
       IF NO  There has not been a seizure! (Hodari)
   Hodari
       Facts: Five youths huddled around a car all ran away as the police pulled up. Police
       chased  who threw crack on the ground. He argued that the discovery of the crack was
       the fruit of an unlawful seizure.
       Holding: Not a seizure b/c he did not yield to the police's authority.
   Bostick
       Facts: Police enterd bus, picked out  randomly and w/o suspicion and aske to see his
       ticket and bag.
       Holding: Not a seizure b/c he could have said no and left!
       Changes the question  Would a reasonable person not feel free to say no to the police?

What Type of Detention was it?
  A. Arrest?
      Factors:
         – Length of time in Custody (5 minutes? 45 minutes? 3 hours?)
         – Scope of search (beyond a pat frisk for weapons?)
         – Amount of physical movement (taken to station?)
         – Miranda rights read?
         – Don't be fooled by police saying "This is not an arrest."
         – Initital step in a criminal prosecution?
      IF YES  Was there probable cause to believe the arrestee was guilty of crim.
                   offenses bases on articulable facts and reasonable inferences?
      IF YES  Where did the the arrest take place?
         1. Suspect's Home?  Need an Arrest Warrant
             General Rule: Police need an arrest warrant based on probable cause to believe
             the arrestee is guilty of offenses, unless there are exigent circs.
             Payton: Absent exigency the threshold may not be crossed w/o an arrest warrant.
             Arrest Warrant implicitely carries with it limited authority to enter suspects
             dwelling if there is reaosonable belief that the suspect is home.
             a. Was the Arrest Warrant valid?
                  Visor: "Unknown black female"  too broad and vague
                  Franks: Warrant cannot be based on affidavit that is intentionally or
                  recklessly false.
             b. Was the Warrant executed reasonably?
                  Garrison: Warrant said arrestee lived in the "Third Floor Apartment," but
                  there were two apartments on the 3rd floor and the police searched them both.
                  Holding: The execution of the arrest warrant was reasonable.
                  Exam Tip: Very Factually Based  Make arguments on both sides.
             c. If no Arrest Warrant, any Exigent Circumstances?
                  Welsch: Warrantless arrest in home for DUI was unlawful b/c offense did not

                                              11
              rise to level of seriousness to forego warrant requirement.
              Santana: Can't run into your house to avoid arrest; police can chase you
              inside to arrest you.
       2. Third Party's Home?  Need an arrest and a search warrant
          Steagald: DEA agents had an arrest warrant for Lyons which they executed in
          Steagald's home w/o a search warrant and found cocaine belong to Steagald.
          Holding: Police needed a search warrant in addition to the arrest warrant.

       3. On the Street or in a Car?  Police need probable cause
           – Felony: No warrant requirement!
           – Misdemeanor: Common law did not allow for an arrest unless:
              a. breach of the peace, or
              b. committed within the presence of an officer.
           Collective Police Information:
           Key Q is whether the issuing officer/dept. had probable cause.

B. Terry-stop short of an arrest?
   General Rule: Under Terry v. Ohio, the police may briefly stop people based on a
   reasonable suspicion that criminal conduct is occurring or is about to occur based on
   specific and articulable facts. A Terry-stop authorizes them to ask questions and to
   conduct a protective pat-frisk for weapons, but not to conduct a search for evidence.

   1. Was there reasonable suspicion of criminal conduct?
       Factors:
            – Need "specific and articulable facts"
            – Suspicion alone is not enough. (Brown v TX  "The place looked suspicious")
            – RS judged on both the content of information and its degree of reliabilty based
              on the totality of the circumstances (Alabama v. White)
            – Subjective Belief of police officer does not trump the objective facts justifying
              the stop (US v. Whren)
       Unprovoked Flight:
       Ill. v. Wardlow: "Unprovoked flight" may be a factor giving rise RS.

       High Crime Area:
       Ill. v. Wardlow: "High crime area" may be a factor giving rise RS.

       Drug Profiles:
       Brown v TX: "Drug prolifes" alone are not enough.

       Past Serious Crimes:
       Hensley:
       Commission of crimes committed in the past cannot give rise to reasonable suspicion
       UNLESS they were serious felonies.

       Confidential Informants:
       Adams v. Williams: CI tips can give rise to RS, even where there is some question as
       to the CI's past reliability.


                                            12
       Racial Profiling
       While a racial profile may be a starting place, police need other facts to have RS:
       Reid: Testimony that an individual meets a "drug profile" does not constitute RS
       Rodriguez: Passengers that act objectively evasive and suspicious may create RS
       Sokolow:  fit "drug courier profile"  large amts of cash, assumed name, short trip
       Holding: Ct. acknowledged that 's activity, although lawful, constituted RS.
       However, Ct. did not agree that analysis is changed by agent’s belief that 's behavior
       was consistent w/ drug profile.
       Soto (Sup. Ct. of NJ): Allowed  to bring in statistics to prove allegation.

   2. Was the scope of the detention excessive?
       Duration of Stop:
       Place: 90 minutes detention of luggage went beyond permissable scope of Terry.
       Sharpe: 45 minute delay is okay, but Ct. refused to draw any bright line rules.

       Movement of Suspect:
       Dunaway: Officers had less than PC that  was involved in a robbery-murder –– was
       picked up and brought to station –– this mvmt to station makes it arrest and PC req.
       Florida v. Royer (White Plurality)
       Facts:  "fit drug courier profile" at the airport and gave a false name when stopped.
       He was brought to a small room while the police retrieved his luggage which 
       opened at their request.
       Holding: Detention was unlawful b/c police went beyond the permissable scope of
       Terry though they did not have PC to arrest. Consent was not effectual b/c this rose
       to the level of a police interrogation. Finally, the officers' conduct was more intrusive
       than necessary to effectuate an investigatory Terry detention
       Brennan Dissent: Not even RS to Stop!

C. Routine Traffic Stop?
   General Rules:
    State and local law gives broad discretion to police to either give a desk-appearance
     ticket for a traffic violation or arresting the driver.
    SC has never held that it is unconst. to arrest a person for a "minor offense" for which
     one could not get jail time. (Some state SC's have held that the state constition prevents
     such an arrest.)
        Robinson: Reasonableness of the initial stop must be determined from the objective
        facts giving rise to the stop, not the subjective intent of the officer.
        Gustafson: Upheld a search incident to a custodial arrest for driving w/o a license.
        Stewart in concurrence noted that the custodial arrest may have violated 4th Am.
        Recent TX Case: SC Rejected Stewart's view, upholding a custodial arrest for
        repeated passenger seat-belt violations for small children.

       Was the scope of the detention reasonable?
         Length/Scope of Detention:
             Ohio v. Robinette:
             Facts: Police ran a background check after a stop for speeding.

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               Holding: When continuted detention for a person stopped for a traffic
               violation is not related to the initial stop, it must be based on an articulable
               facts giving rise to suspicion of some seperate illegal activity.
           Removal of Passengers:
               Wilson (1997)
               Holding: SCT extended Mimms, holding that officer making a traffic stop
               may order passengers to get out of car. Furthers interest in officer safety b/c
               more passengers in the car greatly increases the risk of harm.
           Full-blown searches:
               Knowles v. Iowa: No 4th Am. exception for a "search incident to a citation"

       Was the cause for the stop reasonable?
         Objective Standard: Subjective intent of the officer is irrelevant.
         Racial Profiling:
         Soto (1996, Sup. Ct. of NJ): Allowed  to bring in statistics of racial profiling.

D. Suspicionless Stop?
   General Rule: Police cannot stop a car without reasonable suspicion of a traffic violation
   or other criminal activity. (Delaware v. Prouse)

   Exceptions:
      1. Sobriety Checkpoints (for drunk drivers)
         Michigan v. Sitz (1990)
         Facts: Sobriety Checkpoint established as part of a written policy w/ guidelines
         that limited the length and scope of the initital stop to quick look in the car and
         licesnse check. All cars stopped initially but if officers suspect DUI, then pulled
         over for further investigation and possible arrest.
         Holding: The initial detention is a seizure, but the invasion is "slight" and justified
         as an administrative effort to keep roads safe, not as a criminal investigation.
                   Must apply to all cars; and
                   Must be part of a written policy with guidelines.

       2. Border Checkpoints (for undocumented immigrants)
          Martinez-Fuerte
          Holding: Upheld as serving an administrative purpose (border control), not a
          search for illegal activity.




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Step 6 – Does the Defendant have standing to raise a Fourth Amendment claim?
General Rule: To have standing to raise a Fourth Am. claim challenging an unlawful search, one
must have a privacy or possessory interest that has been interfered with or violated by search.
Note: The  bears the burden of proving standing at a Motion to Suppress.

      Rakas v. Illinois (1978, Rehnquist)
      Facts: 's convicted of armed robbery after police seized guns found in car they were
      passengers in. 's did not own the car and they argued that they did not own the guns.
      Holding: No Standing! SC rejects Jones "legitimately on the premises" test as too broad.
      Question is whether the  had a legitimate expectation of priv. in the area/things searched.

      Minnesota v. Olson: (1990)
      Facts:  was arrested in home of another where he had spent the night w/ permission.
      Holding:  Has Standing! His status as an overnight guest was enough to show that he
      had a reasonable expectation of privacy –– society recog as reasonable.

      Minnesota v. Carter: (1998)
      Facts:  used Apt for 3 hrs w/ permission of owner, who was present, solely for the
      purposes of packaging cocaine.
       Holding: No Standing! Not a reasonable expectation of privacy


Step 7 – Can the evidence be suppressed?

   A. Does the Exclusionary Rule Apply?
      General Rule: Evidence seized in violation of the 4th Am. Right must be excluded
      from crim. prosecutions.

       Rationales:
       1. Deterrant: Deter the police from violating the constitution.
       2. Judicial Integrity: Don't want courts to become partners in the violation.
       3. Systemic Effect: positive impact on the whole judicial system.
       4. Remedial Function? Not realy seen as an individual right.

           Mapp v. Ohio
           Facts: Police entered 's house without a warrant in search of obscene material. 
           protested their entry, requested to see the warrant, said she wanted to call her atty.
           The police held up a piece of paper they purported was a warrant. When she grabbed
           it and put it in her bosom, the police physicallyh wrested it from her.
           Holding: Evidence seized in violation of the 4th Am. Right against unlawful
           seizure must be excluded in state criminal prosecutions.

       Scope of ER:
       1. Courts enage in balancing to determine whether ER should be extended to other
          proceedings:
            Parole revocation hearing  NO!
            Grand Jury proceeding      NO! (Calendra)

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     Habeas Corpus petition  Only if  did not have a "full and fair opportunity to
      litigate the claim in state court." (Stone v. Powell)
2. You cannot challenge the court's jurisdiction on 4th Am. grounds.
3. You cannot challenge the state's right to prosecute you.
4. You cannot supress officers/witnesses testimony regarding the search. (Ceccoline)

"Fruit of the Poisonous Tree"
Fruits of unconstitutional police activity must also be excluded as long as the illegal
action and the evidence found are not so attenuated.

Limits on the "Fruits Doctrine"
Wong Sun v. US (1963, Brennan)
Hom Way          Under surveillance for drug smuggling; found heroin on him.
                 He alleges he bought the heroin from Toy.
Toy              Police go to Toy's laundry; barge in door, arrest him, but find no heroin.
                 He fingers Johnny Yee.
Yee              Shows police heroin; says he bought it from Wong Sun.
Wong Sun         Arrested at his house, but no evidence found on him.
Holding: "Under the principles of ER exclusion will not be a remedy if the evidence
is attenuated from the illegal search. " The manner in which Yee was arrested was
improper; therefore the heroin was not admissable against him; However, it was
admissable against the others. Wong Sun's statement comes in b/c it was "so attenuated
as to dissipate the taint."
Factors:
    – Suspects allowed to go home
    – 2 of them had talked woth counsel
    – Considerable time had gone by
    – Apprised of their rights
Note on Standing: WS did not have standing to challenge the evid. seized from Yee.

Independent Source Rule
If a search is conducted pursuant to a lawful warrant that is "genuinely independent" of
any unlawful search, the evidence seized may be admitted.

   Murray v. US
   Facts: Fed. officers conducting an investigation saw vehicles enter and leave
   warehouse. They entered w/o a warrant and saw burlap bales. Left and applied for a
   warrant using other info. They then entered and seized the drug filled bales.
   Holding: If the second search was “genuinely independent” from the unreasonable
   one than the evidence can be admitted.




                                         16
B. Is there some Exception to the Exclusionary Rule:

   1. Good Faith Exception

      US v. Leon
      Facts: Search warrant obtained based on Conf. Informant of unproven reliability and
      subsequent police obervations activity that had the appearance of drug selling.
      Dist. Ct: At Mot. to Suppress, held that the affidavit was insufficient to establish PC.
      Holding: ER will not apply where a search is conducted in reasonable, good-faith
      reliance on a search warrant that is ultimately found to be unsupported by PC.

      MA v. Sheppard:
      Facts: "Narcotics Warrant" used in a homicide investigation.
      Holding: Evidence allowed in. ER will not apply when only a "technical mistake."

      AZ v. Evans
      Facts: Warrant had been quashed 17 days before arrest, and drugs were found in
      possession during arrest. Found to be a "clerical error"
      Holding: Good faith exception applies when an officer believes there to be a valid
      warrant when it is in reality invalid at time of its exercise.

      Evidence of Good Faith:
          – Corroborating evidence;
          – Amt. of independent investigation of the suspect;
          – Review of affidavit by Prosecutors/US Attorneys;
          – Detail and thoroughness of the affidavit;


      What's Left after the Good Faith Exception?
         1. If the magistrate should have reasonably known that no probable cause existed;
         2. If the affiant should have reasonably known that no PC existed;
         3. Intentional falsehood to get the warrant;
         4. Reckless falsehood to get the warrant;
         5. No warrantless good faith exception;
         6. If magistrate abandons his neutrality.

   2. The Impeachment Exception
      Illegally seized evidence may be addmitted but only for the limited purpose of
      impeaching his/her credibility (within the scope of direct examination) (Harris v. NY)

   3. Inevitable Discovery Exception

      Nix v. Williams
      When the evidence in question would have inevitably been discovered w/o reference
      to police error, there is no nexus to show a taint.




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