Bradley Smith Criminal Procedure- Nowlin (2006)
incorporation doctrine- "selective incorporation" as a compromise between total incorporation and fundamental
Duncan fairness, Palko "implicit in the concept of ordered liberties" should be incorporated
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
4th Amendment, cl. 1 searches and seizures, shall not be violated….
makes 4th Amd. search and seizure a "property rights" question, i.e. govt. may not trespass on your land;
however, no possessory interest in 1) fruits 2) instrumentalities 3) contraband; mere evidence rule- officers
Boyd cannot search for mere evidence of a crime as opposed to 1,2,3.
rejects 4th/5th amd. property rights analysis under Boyd; 5th amd. applies to testimonial evidence; replaces
Schmerber Boyd analysis with privacy one- reasonableness determined by PC w/ a warrant or a warrant exception.
rejects "mere evidence" distinction in Boyd; 4th amd. is about privacy- govt can search for evidence so long as
Hayden (privacy) warrant/ warrant exception is satisfied
"What is a 4th Amendment search?" Boyd trespass doctrine overturned; 4th amd. protects people, not places;
Harlan's concurrance gives us the test- suspect must have 1) subjective (actual) and 2) objective (reasonable)
expectation of privacy. Test has empirical (fact-intensive) and normative components ( 1) social value in
Katz protecting privacy 2) level of intrusion 3) degree to which D attepted to protect interest 4) value in crime control
false friend w/ wiretap; assumption of the risk analysis- no expectation of privacy in what you tell another
Lopez no reasonable expectation of privacy w/ false friends and a recorder
On Lee no reasonable expectation of privacy w/ a recorder
Bond physical touching/manipulation of a bag is a 4th amd. search- subject to reasonableness test.
Place no reasonable expectation of privacy in "smells" i.e. a drug dog sniffing effects.
Greenwood no reasonable expectation of privacy in one's trash.
fed ex employee- officers may replicate a citizen's search; not subject to reasonableness requirement- no
Jacobson expectation of privacy if the "cat is already out of the bag"
Skinner test for who is a state actor- totality of the circumstances- did police 1) advise 2) encourage 3) participate?
thermal imaging is a search; technology not commonplace, privacy level is highest (home). Binoculars would be
Kyllo ok- common technology.
no reasonable expectation of privacy in anything you can see from FAA regulated airspace (lawful, public
Ciraolo, Riley vantage point)
Oliver Open fields doctrine; society not ready to recognize that privacy interest.
curtilage test: 1) proximity to home 2) existence of enclosure 3) nature/use of area 4) steps taken to exclude
Air Pollution Variance no reasonable expectation of privacy in smoke plumes from D's "open field"
Hudson no REP in prison cell
Class no REP in VIN number
Rakas auto passenger- no REP in another's car.
Jacobson What is a 4th Amendment property seizure? Substantial interference with a possessory interest.
What is a 4th Amendment person seizure? Application/threat of force so that a reasonable person would not
Mendenhall feel free to leave; mere questioning does not equal a seizure
Brewer force must be intentional; no "bumping into" someone
seizures in enclosed spaces; in this case, other factors (bus leaving) made him not feel free to leave; instead,
Bostick test is does reasonable person feel they can terminate the police encounter?
Hodari D a person is not seized when being pursued; only when physically caught, or submissive to show of authority.
police force must be proportionate; for deadly force, 1) police must believe suspect poses a risk to safety of self
Garner or others 2) use of deadly force will effectuate and is necessary
Graham an arrest is always a seizure; even non-deadly force must be proportionate
No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly
4th Amendment, cl. 2 describing the place to be searched, and the persons or things to be seized.
Weeks Established the federal Exclusionary rule; evidence obtained illegally shall not be permissibly used at trial.
Mapp applied the Exclusionary rule to the states vis a vis the 14th Amendment
Probable cause to arrest: reasonable officer has facts that lead him to believe that an offense is or has been
probable cause to search: reasonable officer has facts that lead him to believe that an item subject to seizure
Garza-Hernandez will be found in the place to be searched.
two pronged test for determining if informant tips are sufficient for probable cause: 1) veracity- reliability,
Aguillar/Spinelli credibility 2) basis of knowledge- self-verifying details
overrules Aguillar/Spinelli for a totality of the circumstances test taking into account the prongs, plus other
Gates factors; policy rationale- deference to magistrate, common sense determination
Whren pretext is irrelevant; cops pull over for one offense, PC for another develops while pulled over, OK
Ornealas magistrate's PC determination not reviewed de novo on appeal
Ventresca officer's determination is reviewed de novo on appeal.
McLaughlin if no judicial PC determination before, must get it within 48 hours.
warrant preference- magistrates are detached and neutral, not in the competitive enterprise of ferreting out
Coolidge cannot be a member of the executive branch
Shadwick municipal clerks ok
Franks "oath or affirmation"- if an officer falsifies an affidavit, the warrant is invalid
Steele/Marron warrants must be reasonably particular; no general search warrant.
Watson publicly executed arrests for felonies and misdemeanors committed in officer's presence w/o warrant is ok.
"threshold of door" is a public place- if police witness crime, then you dart in your house, they can come after
Santana you- "hot pursuit" exigency; no Payton requirement
Atwater Watson carries over to traffic stops
search incident arrest is ok w/o warrant; limited to area in immediate control of suspect 1) temporal-
"reasonably contemporaneous" and 2) spatial- grabbing area, wingspan, person; rationale- police protection,
Chimel destruction of evidence
Robinson Chimel extends to automobiles in traffic stops.
if valid arrest, and recent occupant of vehicle, police may search passenger compartment (but not trunk)
Belton incident to arrest
Thornton if police wait till suspect is out of car, then arrest, still valid per Belton.
no search incident traffic citation (if arrestable offense, hard to square with an Atwater, Belton/Robinson
Payton must have arrest warrant and PC that they are in the residence to make felony arrest in residence
Steagald for 3rd party homes, need arrest and search warrant to make felony arrest.
Hayden (exigency) 1) destruction of evidence 2) hot pursuit 3) preventing flight 4) protecting public safety
Vale officers may not create their own exigency
Brigham City police may enter to break up a fight (protecting public safety)
Macarthur officers may seize a house and make you wait outside while they obtain a warrant
Welsh no physical invasion, even with exigency if offense is minor
Summers officers may detain a suspect while executing a search warrant
following arrest, officers may conduct a protective sweep of adjoining areas to search for third parties that
Buie could be a danger to the officers (obviously not containers)
Wilson Knock and announce rule must be followed in execution of a search warrant
Richards Unless it would be dangerous or inhibit investigation of crime
Gooding Warrant execution is preferred to be carried out in the daytime
Ramirez unreasonable destruction of property while serving warrant is impermissible
Gervato/Chubbuck occupants need not be on site to execute a search warrant
Simmons no requirement to leave a copy of the warrant/items to be seized if they aren't there
Chambers automobile warrant exception- based on recurring exigency 1) inherently mobile 2) diminished EofP
Carney test for automobile- 1) appearance of ready mobility 2) use as a vehicle or home? 3) curtilage
no warrant exception for containers- need a warrant 1) heightened level of privacy 2) purpose- storing effects,
Chadwick not transportation
D puts suitcase in car; officers had PC for of drugs in the case, no warrant. Chadwick governs- need a warrant
Sanders b/c PC was particularized to container, not car.
officers w/ particularized PC about drugs in an automobile; search bag in the car, find drugs- Chambers
Ross governs, thus OK. Particularized PC was in car, not container.
overrules Sanders; Sanders situations governed by Chambers, not Chadwick; particularized PC irrelevant-
Acevedo same exigency rationales apply to a container in a car as the car itself.
Houghton owner of container irrelevant; if PC, they can search anyone's containers in the car.
Pringle common enterprise- PC to arrest any/all passengers and driver for drugs found in back seat
plain-view doctrine of warrant exception; need 1) lawful vantage point 2) right of access 3) must be immediately
Horton apparent that item is subject to seizure b/c of its association with the crime
Dickerson plain-touch doctrine; tactile version
Inventory searches are constitutional; policy rationales 1) false claims of property loss 2) police safety 3) protect
property 4) need to ID person; must have 1) good faith 2) limited discretion 3) SOP 4) incarceration (for persons-
Opperman/Lafayette Lafayette) Opperman is vehicle.
Bertine inventory search done on arrest premises is OK, even containers (per Wells)
Sitz Sobriety checkpoints ok; must have 1) SOP 2) balance level of intrusion w/ state interests
Prouse no roving roadblocks- much higher level of intrusion than Sitz where motorists are put on notice
Edmond road blocks for generalized crime fighting unconstitutional
Lidster hit and run checkpoint ok- exigency
Ramsey border checkpoints ok
special needs search- school agents simply need 1) reasonable suspicion at time search undertaken and 2)
TLO search is limited in scope
Acton, Earls random drug testing for athletes, after school programs ok
Von Raab Customs agents drug testing OK
Skinner Railway workers involved in accident- drug testing OK
Chandler drug testing for those seeking public office NOT ok.
Ortega search of a govt. office ok on RS of work related misconduct
consent searches; reasonable when voluntary- totality of circumstances test; cannot be the product of coercion
Bustamonte or submission to authority
Bumper acquiescence does not equal consent
Robinette no "you are free to go" per se rule needed; consent searches during traffic stops ok
Jimino scope of consent search- "would officer reasonably believe D consented to search of ____?"
Matlock roommate consents while other isn't there; assumption of the risk analysis
Randolph wife consents, husband says no; have to get a warrant.
Rodriguez standing to give consent: "police must reasonably believe that the person had the authority to consent"
stop and frisk that does not rise to the level of a full custodial arrest, but is a search and seizure anyway;
creates the reasonable suspicion standard; officer may stop and frisk for weapons if there are specific and
Terry articulatable facts that lead the officer to believe crime is afoot and the suspect is armed and dangerous
Hensley past crimes are susceptible to Terry doctrine
reasonable suspicion is a totality analysis- fleeing is not totally conclusive about wrongdoing but certainly
Wardlow indicative of such.
White tips in a Terry context- example of the bottom level of reliability to give rise to reasonable suspicion
J.L. crosses the line- all innocent details any member of the public could have given.
Reid two people concealed that they were traveling together- no RS
Royer nervous, false name, false name on luggage, traveling under alias = RS
Sharpe distinguishes Terry from full custodial arrest based on duration- reasonableness
Dunaway distinguishes Terry from full custodial arrest based on spatial dimension- interrogation room, for instance
basically Terry with a car; officers are allowed to search automobile for weapons if they have RS suspect is
Long armed and dangerous
must have privacy interest to contest a search (Katz) must have possessory interest to contest seizure
Mimms traffic stops, Terry stops- may order driver out of car
Wilson same applies to passengers
Caballos drug dogs ok for Terry and traffic stops
while executing search warrant on business, officers may not search all patrons; need individual suspicion for
Ybarra each person
Hiibel officers may demand identification during the course of a Terry stop if state law says refusal is arrestable
turns 4th Amendment rights analysis from a standing/agency/"legitimately on premises" test into a Katzian
Rakas legitimate expectation of privacy one. 4th amd. rights are personal rights.
Olsen overnight guests = REP
Carter social guests = No REP
Silverthorne fruit of the poisonous tree doctrine introduced; derivative and primary evidence excluded
independent source doctrine (exception to the FoPT based on severance of but for causation); policy rationale-
prosecutors, investigators should be put in no worse/better position than before violation; must show 1) info
from illegal source did not aid in probable cause determination and 2) motivation for search 2 did not come
Murray from search 1
inevitable discovery doctrine (but for severance exception); police must show that evidence would have been
Nix obtained by an independent line of investigation anyway; then the illegal method is irrelevant.
attenuation of the taint (proximate cause severance exception); totality test looks at 1) temporal prox between
Brown/Wong Sun evidence and illegality 2) intervening circumstances 3) acts of free will 4) purpose, flagrancy of conduct
Ceccolini testimonial evidence attenuates much faster than physical evidence
new attenuation doctrine based on type of violation, not remoteness; protection guarded by original interest
Hudson violated should reasonably match up.
Segura no right to destroy evidence; if that is the sole reason, attenuation is automatic
Good-Faith exception- if a warrant is found to be invalid after served and relied upon in good faith, then the
evidence is ok. NOT valid if, 1) magistrate = rubber stamp 2) false info in affidavit 3) bare bones 4) lacks
Krull Good faith applies to legislatures
Evans good faith applies to judicial clerks
impeachment exception 1) ok if statement is on direct 2) only used collaterally (other crimes) 3) only for D, not
Walder D's witnesses
Havens Eviscerates Walder #1: cross OK so long as it is w/in scope of direct
eviscerates Walder #2: jury instruction, then tainted evidence can be used to impeach testimony for actual
Harris crime D is on trial for!
James leaves Walder #3 in tact.
5th Amendment …nor shall be compelled in any criminal case to be a witness against himself…
Ashcraft/Spano confessions must be voluntary (totality test); becomes one of three Zerbst prongs post-Miranda
Connelly crazy guy confesses; voluntariness is based on govt actions, not D's.
voluntariness is sub-constitutional, if it is violated, reward is you get it excluded. No right to be free from
Chavez/Rochin Unless the interrogation "shocks the conscience" then you get a s1983 suit. Rights violated.
triggered by custody and interrogation --> creates a coercive environment; CE dispelled by four Miranda
warnings, then must get a valid waiver. Takes the Ashcraft test and morphs it into a threshold issue- if
Miranda Miranda is complied with, generally good to go. If not, confession presumed involuntary.
Tucker/Dickerson Tucker makes Miranda a JMPR, Dickerson turns it into a Constitutional Rule
Berkemer What is custody, for Miranda purposes? Full custodial arrest (not Terry)
What is questioning, for Miranda purposes? Express questioning, or its functional equivalent. "a statement
Innis likely to illicit a response from a suspect." Reasonable officer standard.
Perkins no Miranda warnings needed if atmosphere isn't coercive (prison co-inmates, one is an undercover cop)
Fulminante statements given in exchange for protection in prison setting is coercive --> need Miranda warnings
Prysock Miranda warnings need not be word for word- just, taken in their totality, represent the four warnings
Duckworth "you can have an attorney, just not now" ok- no requirement to have stationhouse attorney around.
Zerbst Miranda waiver test: must be voluntary, knowing, and intelligent
Spring no requirement to apprise suspect of scope of oncoming questioning
Connelly Zerbst waiver must be proven by preponderance of evidence
Butler Express waivers are best, implied ones are ok in certain circumstances.
Moran police need not give helpful information to attorney or suspect.
right to silence invocation: "scrupulously honored" test- even higher standard than Zerbst if they come back in
Mosley and re-interrogate after invocation.
Edwards Edwards rule: once right to counsel has been invoked, questioning must cease until counsel is present.
Minnick Edwards means counsel must be PRESENT- not, conferred with, then we may resume questioning
Davis invocation for counsel must be unambiguous; if ambiguous, police may continue.
Robertson right to counsel is not offense specific. It applies to any and all offenses.
if suspect re-initiates contact, ok; initiation can be ambiguous so long as it evinces a desire for a more
Bradshaw generalized discussion about the investigation.
Harris Miranda impeachment exception
Quarrels Miranda public safety exception
Elstadt no fruit of poisonous tree exclusion for Miranda
Tucker testimonial evidence in
Patane physical evidence in too
Limits Elstadt; new police tactic of ask, Mirandize, ask again- really one interrogation setting- perverts Elstadt
6th Amendment …and to have the assistance of Counsel for his defense.
kicks in at commencement of judicial proceedings; policy becomes not dispelling of coercive atmosphere, but
Massiah protection of adversarial nature of CJ system.
Brewer deliberate elicitation of information constitutes an interrogation under the 6th Amd.
Henry deliberate = likely to induce a response
Kuhlmann must be more than passive listening
Miranda warnings appropriate for 6th Amendment waiver; Zerbst + inform that lawyer has been retained if that
Patterson is the case
Jackson 6th Amd version of Edwards- once right to counsel invoked, questioning must cease till counsel present
6th Amd. rights are "charged crime" specific; Blockburger doctrine- if two crimes have same statutory elements,
Cobb then they are the same crime for a Cobb analysis.
**red text means case is there for historical value; no longer good law