Criminal Procedure: Investigation
Search & Seizure
4th Amendment: ―The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.‖
o “Persons” =
(1) D‟s body as a whole;
(2) Exterior of D‟s body, including clothing; and
(3) Interior of D‟s body, including when blood is extracted to test for alcohol
o “Houses” =
(1) Broadly construed to include structures people commonly use as
(2) House, Hotel, Apartment, Garage attached to House; and
(3) Curtilage of Home Included = “the area to which extends the intimate
activity associated with the „sanctity of a man‟s home and the privacies
*Note: The S. Ct. has also included offices, stores, and other commercial
buildings that are included within the term “houses” - however, the does not
mean the scope of 4th Amend coverage of such “houses” is the same:
commercial structures treated differently than residential property b/c there
is less expectation of privacy
o “Papers” = Encompasses personal items, such as letters and diaries, as well as
Impersonal business records
o “Effects” = Represents the residual component of Const. phrase.
(6) Fruits of Crime;
(7) and so forth
Applies to both searches and arrests:
o Where a warrant is issued—probable cause is required
o A warrant is usually required before a search or seizure unless there are ―exigent
o An arrest warrant, by contrast is usually not constitutionally required.
o The 4th Amendment DOES NOT require that a warrantless search be based
only upon “probable cause.” → Terry Stop
o Applies in two situations:
Before a judge or magistrate may issue a warrant for search or arrest
Before the police may make a warrantless search or arrest (only under certain
o Requirements of probable cause:
To arrest→ it must be reasonably likely…
o A violation of the law has been committed and
o The person to be arrested has committed the violation
To search→ it must be reasonably likely…
o The specific items to be searched for are connected with criminal
o And these items will be found in the place to be searched.
The “Threshold” of The 14th Amendment Right to be Secure Against
Searches→ has there been a search?
Factors that are relevant to assessing the “reasonableness” of a privacy expectation:
Voluntary disclosure to a third party cooperating with the government
No privacy interest in activities
Either nothing legitimate will be learned (drug sniffing dog) or virtually certain that nothing
will be learned AKA Failure to take precautions to safeguard privacy.
“Search” Cases: Original Pre-Katz Analysis (property rights/trespass approach)
Boyd v. United States (1886): At issue was an order requiring an individual to produce
business invoices. The Court found that it was a search because it was ―a material
ingredient and effected the sole object and purpose‖ of a search which was ―forcing from a
party evidence against himself.‖ Based on Boyd, the pre-Katz 4th Amend did not apply in
the absence of physical intrusion.
Olmstead v. United States (1928): departed from Boyd. Wiretapping w/ out warrant from
outside a building was not a search because there was no ―actual physical invasion‖ and no
trespass upon a protected location. Intangible, conversations not protected in 4th Amend
phrase and wiretapping telephone lines occurred outside of O‘s property.
Voluntary disclosure to a third party cooperating with the government → Informants
On Lee v. United States (1952): an informant‘s electronic transmission was not a search
because the speaker was ―talking confidentially and indiscreetly with one he trusted and was
overheard‖ and the speakers consent to talk to the informant precluded a trespass.
Lopez v. United States (1963): no violation of 4th Amendment rights because the suspect
consented to the agent‘s presence in his office and willingly spoke to the agent.
Hoffa v. United States (1966): informant who listened to reported and testified about
Hoffa‘s remarks did not search because no ―interest legitimately protected by the 4th
Amendment was involved.‖ He had not relied on the security of the hotel room, but his
misplaced confidence in the informant.
Voluntary disclosure to a third party cooperating with the government → Electronic
Eavesdropping w/out Informants
Goldman v. United States (1942): the government did not invade 4th Amendment by
placing a detectaphone against an outer wall and listening to a conversation inside a
Silverman v. United States (1964): 4th Amendment was violated when a ―spike mike‖ was
inserted into a party wall minutely intruded into the speaker‘s side of the wall and picked up
conversations passing through heating ducts—even though not a ―trespass‖ it was a
―physical invasion‖ harkening back to Olmstead.
Clinton v. Virginia (1964): the Court found that the government attached a listening device
to a wall by means that caused a thumbtack sized penetration—it had searched within the
meaning of the 4th Amendment.
“Search” Cases: The Modern Katz v. United States (Privacy Expectation Analysis):
*Katz v. United States: FBI agents attached an electronic listening device to the outside of
a public phone booth and used the information from his end of the conversation in a trial
against the D. This violated D‟s 4th Amendment Rights because it violated the privacy
upon which he justifiably relied. The ―trespass‖ doctrine of Olmstead and Goldman is no
longer controlling, so the 4th Amendment does not turn on physical invasion. But it is not
saying that all privacy violations are 4th Amendment violations are search and seizures.
This change is keeping with the purpose of the Constitution. The purpose is to
protect privacy—privacy should not turn on a thumbtack-sized hole.
This goes beyond eavesdropping from the time of the forefathers. There is no way to
know with current technology if you are putting yourself at risk. Pre-Katz approach
is ―bad physics and bad law.‖
The 4th Amendment protects people not places, so it doesn‘t matter whether the
phone booth is a ―constitutionally protected place‖
Also, departs from Olmstead in that an item does not have to be tangible to be subject
to a search/seizure. It can also be statements—this was established in Silverman.
Katz Test = Modern “Search” Definition
(1) Individual must have “exhibited an actual (subjective) expectation of privacy”
(2) Must prove such expectation is one that “society is prepared to recognize as
„reasonable‟ or „legitimate‟ and „justifiable‟” (objective) - an expectation than an
ordinary person might possess
*Three important questions:
1. Site or nature of property inspected?
2. Extent to which a person has taken measures to keep information, his property,
or an activity private?
-Does NOT apply if person knowingly exposes to the public or is
otherwise in open view
-Does NOT apply if one voluntarily conveys particular information or
property to another - ―assumes risk‖ latter individual is Gov‘t
3. Degree of intrusion experienced
Voluntary disclosure to a 3rd party cooperating with the government→ Electronic
Eavesdropping with Informants
FALSE FRIENDS: No “search” occurs if X, a police information or undercover
agent who is visibly present but is masquerading as D‟s friend, business associate,
or colleague in crime, listens to and reports to Gov‟t D‟s statements to X or to
another person in X‟s presence.
“WIRED” FALSE FRIENDS: As long as agent does not trespass, this is not search.
*United States v. White: The D was convicted by use of information that was
communicated to an informant through radio transmission. The conversation took place in
the informant‘s kitchen (had it been in D‘s kitchen, it would have been a search). Katz does
Rule: Evidence that is received by radio transmission from an informant is admissible
because it is not a search.
This is distinguishable from Katz because of the use and cooperation of someone
whom D was telling.
Government does not have to show anything before it can get an informant to wear a
wire. BUT if the friend drops the wire in the couch and the state overhears
conversation between non-cooperators that is a search under Katz.
Assumption of the risk.
Does not differ from the ―pure‖ false friend situation
*Smith v. Maryland: Installation and use of a pen register is NOT a “search” within
the meaning of the 4th Amendment because there is no expectation of privacy when
one dials phone numbers and transmits that dialing information to a phone company.
Test: whether there is a justifiable, legitimate or reasonable expectation of privacy
(which is determined by the following two questions):
1. Whether he exhibited actual subjective expectation of privacy (This
prong is never determinable)
2. Whether society is prepared to recognize that expectation as
reasonable. *This is the language from Harlan‘s concurrence in Katz—but
it was eventually adopted as the test .
Here—it is not an expectation society is prepared to view as reasonable because he
voluntarily handed the information to a third party.
Rule: There is “no legitimate expectation of privacy in information he
voluntarily turns over to third parties”— if the 3rd party willingly hand that
The emphasis does not turn on the fact that the content was minimal
The phone company was acting as an agent of the police—so it was ―state action‖
*** You can be a temporary state actor***
Subjective expectation might not matter in very rare circumstances (for example, if
the government made a mass warning that everyone was subject to a search).
*California v. Ciraolo: Police got an anonymous tip that D was growing marijuana in his
backyard. A 12-foot fence blocked the marijuana from view. Police secured a plane and
took pictures with a 35 mil. camera. Thus, desire to maintain privacy differs from
expectation to have privacy.
Rule: There is no reasonable expectation of privacy from non-enhanced aerial view of
plants in one‟s yard that are guarded from view by a 12 foot fence, therefore there is no
TEST: Smith v. Maryland:
1. Public navigable airspace—which are “routine”;
2. Physically non-intrusive manner (i.e. did the aerial surveillance cause
undue noise, wind, dust, or threat of injury); and
3. Does not reveal intimate activities traditionally connected with use of
home or curtilage.
Florida v. Riley – if it is known that public planes are at that altitude sufficiently
routinely—then it‘s not a search. Since there are different legal flight limits for helicopters
and planes—it depends on the means.
If there is a tree near your yard—it depends on whether the public regularly climbs it
according to these tests.
Open Fields Doctrine:
Oliver v. United States: the open fields doctrine states that the ―special protection accorded
by the 4th Amendment to the people in their ‗persons, houses, papers, and effects,‘ is not
extended to the open fields.‖ This pertains to land owned around the home that is not
The open field is unprotected. Two reasons: 1) language- it doesn‟t say fields in the 4th
Amendment; and 2) no reasonable expectation of privacy - i.e. only thing going on in
open fields is farming of legal crops. There is no societal interest in protecting the
activities that happen in open fields, and they are usually open to the public anyway.
Curtilage Test (U.S. v. Dunn) : The four variables pertinent to determine
1. Area‟s Proximity to the Home
2. Existence of Enclosure
3. Nature of the Use of the Area
4. Precautions Taken to Exclude Others
Electronic Tracking Devices:
United States v. Knotts: w/ out warrant the police put a tracking device on a chemical drum
container that they knew was going to be sold to K, who they suspected of manufacturing
drugs. The possessor of the container could not claim a reasonable expectation of privacy in
those movements because he had exposed them to anyone who wanted to look. It didn‘t
matter that the police had a tracking device because the information could have been
obtained by visual surveillance from public places.
*Installation of such device raises a ―seizure‖ issue.
*This case very important b/c it distinguishes between police obtaining information via
beeper or electronic surveillance that is only exposed in public view (on roads) and
consists of information that could be gathered by aerial surveillance. However, if tracked
items disappear into private areas (such as home), then would be protected under 4th
Amend b/c of privacy expectation.
* As long as monitoring is limited to movements of persons in non-private
areas, the Gov‟t is free to conduct constant surveillance of citizens.
*Implication of Knotts is that as long as it is hypothetically conceivable (although
nearly impossible) to obtain information in a non-technologically enhanced manner
from a lawful vantage point, it is irrelevant that, instead, the Gov‟t uses an
electronic tracking device to obtain the same information.
*Think about the technology itself- a beeper that monitors current location only is
distinguishable from modern GPS technology that allows ―after the fact‖ tracking.
*Bond v. United States: A police officer squeezed passenger‘s soft luggage on a bus as he
was exiting and felt in D‘s a ―brick like‖ object. The D admitted it was his and gave the
officer permission to open it.
Rule: Probing tactile examination of a person‟s carry-on luggage that exceeds casual
handling is a search within the meaning of the 4th Amend.
Under the Smith v. Maryland test→ He expects it to be touched—but not explored
the way the agent did.
Distinguishes by pointing out that Ciraolo was only VISUAL examination.
DISSENT (J. Breyer joined by J. Scalia):
o He knowingly exposed his bag to public touch.
o Now there is a difference between ―hard‖ and ―soft‖ squeezes.
o Inconsistent with Ciraolo—distinguishes here how the public actually
touches the bag, but in the prior case, they didn‘t distinguish between what
the public could do and what they do.
*Kyllo v. United States: Agents used thermal imager to scan D‘s home. It detected that his
home was relatively warm and consistent with having heat lamps used for growing
marijuana from rays emanating off the walls of the house from the street.
Rule: “Obtaining by sense-enhancing technology any information regarding the interior
of the home that could not otherwise have been obtained without physical „intrusion
into a constitutionally protected area‟ constitutes a search—at least where (as here) the
technology in question is not in general public use.”
*Note: the “general public use” part of the decision goes to the reasonable
expectation of privacy. If it‟s not in general public use, you don‟t expect your
privacy will be exposed.
J. Scalia: “The 4th Amendment‟s protection of the home has never been tied to
measurement of the quality or quantity of information.”
If the technology revealed information about something in your trunk, etc. that would
probably be more acceptable because the fact that it took place in the home is
particularly important in the opinion. But it‘s debatable: a trunk and other things are
closed and expected to be private.
Although the state also argues that no intimate details of the private goings on in the
house were revealed, the quantity/quality of the activity going on has never been a
factor in determining whether a search occurred.
o They used technology in Ciraolo. Majority responds by saying but planes
are in general public use where thermal imagers are not. BUT it could still
be argued that Ciraolo isn‘t really an example of general public use—
because people weren‘t actually looking.
o The data isn‘t important—the content doesn‘t merit constitutional protection.
Can‘t tell what is causing the heat (could be a sauna, etc.) The court
responds that the 4th Amendment has never turned on the quality or quantity
of the information. Any fact about the interior of the home is ―intimate‖.
Garbage Bags = No Search if Outside Curtilage of Home
Dog Sniffs & Other “Limited” Investigative Techniques:
o Drug dogs may sniff boarding/deplaning airline passengers and is NOT a search b/c 1)
information conducted in private, limited manner; and 2)information revealed did not
require opening luggage - merely the presence of absence of narcotics
o Same with drug dogs sniffing vehicles on highways and so forth
Either Nothing legitimate will be learned or virtually certain that nothing will be
United States v. Jacobsen: the Court found that the 4th Amendment did not protect a D from
a government agent‘s reopening of a package that had been opened by a Federal Express
employee who was a ―private party,‖ nor did it find a violation in a chemical field test which
identified the substance in a package as cocaine.
Rule: A governmental action does not threaten protected privacy interests if the
government is almost certain to learn nothing at all, nothing of significance or nothing
Not a search when the government physically reopened a tube.
o If you physically intrude, it is NOT a search if you use reasonable
expectation of privacy doctrine—that‘s virtually certain you will learn
nothing—this substitutes the Katz language for the explicit language of the
Not a search when the government did a chemical field test to determine whether or
not the substance was cocaine.
o The government could only learn two things: 1) not drugs (which is
insignificant) or that it was 2) drugs. If it is (1) there is no privacy loss. If it
is (2), it is illegitimate information—no one can legitimately expect privacy
in drugs. There‘s no legitimate expectation of privacy.
Illinois v. Andreas—the government reopened a large container which had previously been
legitimately searched at the border. The reopening was not a search because there was no
―substantial likelihood‖ that the contents had changed.
4th Amend Terminology: “Seizure”
Seizure of Property:
“Seizure” = occurs when a police officer exercises control over D‟s property
by destroying it, or by removing it from D‟s actual or constructive
*Remember: Plain View Doctrine
In contrast to search, which affects a person‘s privacy interest, a seizure of property invades
a person‘s possessory interest in that property - ―meaningfully interferes
Special Issue: Installation of Electronic Devices On or In Personal Property can raise
seizures issues. Think about whether container/object device attached to belongs to suspect
or installed in manner that meaningfully interferes with property.
United States v. Karo—the mere transfer to an individual of a container to which a
―beeper‖ had been attached was not a search.
Seizure of Persons:
A person is “seized” when the officer by one of the means noted in Terry - use
of physical force or show of authority - either terminates or restrains the
individual‟s freedom of movement through means intentionally applied.
Remember: Plain View Doctrine
Mendenhall “Reasonable Person” Test: Some police-citizen encounters are not as clear-
cut when an officer‘s actions are ambiguous or the citizen‘s submission to authority occurs
through passive acquiescence.
“Seizure” = occurs only if, in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he was free to leave.
*Note: This is an objective test where the subjective intention of a police officer
to forcibly detain a suspect if she attempts to leave is irrelevant, except insofar as
that intention is conveyed to the suspect, and, thus, might affect the impressions
of a reasonable person in the suspect‘s shoes. It also follows that subjective
impressions of person accosted is irrelevant, except to extent that a reasonable
person in that individual‘s situation would possess the same concerns.
Seizure by Questioning?
When police question an individual about suspected criminal activity, brief
questioning, esp. in public place, by itself does not amount to a seizure.
Even when law enforcement officers have no basis for suspecting a particular
individual, they may pose questions, ask for identification, and request consent to
search luggage -provided no coercion occurs.
Bus & Factory Sweeps: S. Ct. has held that if a person‘s freedom of movement
―was restricted by a factor independent of police conduct‖ not a search. ―Whether a
reasonable a person would feel free to decline the officers‘ request or otherwise
terminate the encounter.‖
*Drayton Note: If an officer is uniformed (or not) and/or visibly armed (or
not) carries little weight in the “seizure” analysis in the bus-sweep context
(as long as no weapon is brandished).
One clause of the 4th Amend prohibits ―no Warrants shall issue, but upon probable cause.‖
Importance of PC is evident in 4th Amend jurisprudence from three general constitutional
1) Text of the 4th Amend itself provides that arrest and search warrants may ONLY be
issued if supported by PC
2) ALL arrests require PC - even those that do not require a warrant. That is, an arrest -
which is one form of ―seizure‖ of a person - on less than PC is ALWAYS constitutionally
3) PC is the default position for searches and seizures of property: w/ rare exceptions,
searches and seizures are reasonable if they are conducted w/ PC; although subject to
more exceptions, many searches and seizures conducted w/ out PC are constitutionally
“Probable Cause” Definition:
PC exists when the facts and circumstances w/in an officer‟s personal knowledge,
and of which he has reasonably trustworthy information, are sufficient in
themselves to warrant a person of reasonable caution in the belief that:
(1) in the case of an arrest, an offense has been committed and the person to
be arrested committed; and
(2) in the case of a search, a specifically described item subject to seizure will
be found in the place to be searched.
PC Summary: A law enforcement officer; as a reasonable person, must have a
“good reason” - enough reliable information - to reasonably believe that (in the case
of arrest) the person to be arrested committed a crime or (in the case of a search)
that the search will uncover evidence relating to a crime.
Unreasonableness and the Probable Cause Requirement
→ is the search reasonable/ supported by probable cause?
Protection under the 4th Amendment is in two parts:
o The unreasonable clause—vague and deceptively simple
o The warrant clause—more specific in content and narrower in scope. Probable cause
is only mentioned in the warrant clause. But—it‘s understood as a norm for
warrantless searches as well.
Probable cause is an essential precondition for a valid warrant to search and seize.
Probably cause for a search is not the same as probable cause for an arrest.
o Probable Cause for an arrest requires a certain quantum of likelihood that:
The particular individual
Has committed or is committing a particular offense
o Probable Cause for a search requires a certain quantum of likelihood that:
Something that is properly subject to seizure by the government, i.e.
contraband or fruits, instrumentalities, or evidence of a crime,
Is presently (now)
In the specific place to be searched
o Probable cause to search: exists if ―the facts and circumstances
within [the officers‘] knowledge and of which they [have] reasonably
trustworthy information [are] sufficient in themselves to warrant a
man of reasonable caution in the belief that an item subject to seizure
will be found in the place to be searched.‖ United States v. Garza-
o There need not be certainty, but ―sufficient likelihood‖ to establish
o Staleness: there once was enough probability. If you wait six months, that
probability no longer exists. The mere passage of time drops the probability.
o Hearsay: you may rely on hearsay. But how do you determine whether hearsay
Draper v. United States: the S. Ct. dismissed a D‘s claim that hearsay could not be the basis for
finding probable cause because the hearsay came from a person whose information had been found
accurate and reliable. Other information regarding the D was corroborated by the informant before the
D was searched (the clothes he would be wearing, the pace he was walking, the time and location he
would arrive). So there were ―reasonable grounds‖ to believe the rest of his information was true.
**Aguilar v. Texas (overruled by Illinois v. Gates): while probable cause can come from hearsay,
the information from a ―reliable source‖ was inadequate because:
1. There was no ―underlying circumstances‖ necessary to enable the magistrate to judge
validity. Informant doesn‘t say how he got his information.
2. Officers offered no support that the information was reliable or that the informant was
credible. Officer doesn‘t provide facts which show why he believes the informant.
o Without this information, it is the informant or officer who is making the
determination, not the magistrate.
o If you eliminate either one, the validity of the conclusion is undermined.
**Spinelli v. United States (overruled by Illinois v. Gates): Information was provided by a
confidential informant that D was operating a handbook and accepting wagers and disseminating
wagering information by means of the two telephone lines he had in his home. The FBI also made a
report that confirmed the D had two lines and confirmed he entered and exited a particular apartment
building. He was also a ―known‖ gambler by the FBI and law enforcement. This case is more
complicated than Aguilar because not only is there an anonymous tip that presents a conclusion, but
there is also some police investigation. Even when corroborated to the extent indicated (that the D
had two phone lines and operated at a specific address), there is not sufficient evidence to support
Applying Aguilar: the test is triggered because the hearsay is essential. Judges might over-
credit the hearsay —when such information might only be 10% believable—they could base
90% of the decision to issue a warrant on it.
o Did the officers offer support as to why the source was reliable?
o Are the ―underlying circumstances‖ for the information known?
If it fails there (as it did in this case)—examine the extent to which the
information in the hearsay report was corroborated. Was it ―much more than
one small detail‖ as in Draper? In the test—the object is to evaluate the
value and weight of the information.
All the tip has to include to pass the test is: (1) first-hand knowledge or inference of 1st hand
knowledge by great detail; and (2) he‘s been right before or he‘s a truthful person or that he has
reason to be truthful about this. But EVEN if you can‘t pass the test—you still might have probable
cause. It‘s possible to reflect on the basis of knowledge or veracity through investigation.
Illinois v. Gates (1983): Police received an anonymous letter that accused a married couple of selling
drugs at a specified anonymous address. The letter described in detail the couple‘s alleged modus
operandi, including the fact that they usually bought drugs in Florida and brought them to Illinois by
car. The letter mentioned specific date the wife would drive to FL, drop off the car and fly home, and
the husband would fly down a few days later and drive back alone w/ large quantity of drugs in trunk.
Police and federal agents verified the facts alleged in the letter, including the FL trip. The letter was
wrong, however, in predicting that the wife would fly home immediately after dropping off the car;
instead, she remained and accompanied her husband on the trip north. As they began driving north, on
an interstate frequently traveled on by those going to the Chicago area, the police sought and secured
a warrant to search the suspect‘s automobile and home.
The issue was whether an anonymous letter, partly corroborated by police surveillance of the
whereabouts of the suspects, establishes probable cause for a search warrant. The Court abandoned
the Aguilar-Spinelli test and adopted the Totality of the Circumstances Approach.
Totality of the Circumstances Test:
o Practical, common-sense decision whether, given all the circumstances set forth
in the affidavit before him, including the veracity and basis-of-knowledge of
persons supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular place.
o The Aguilar-Spinelli test is not to be rigidly applied as entirely separate requirements,
but should be seen as closely intertwined issues that illuminate a common-sense
determination of whether there is probable-cause viewing the totality of the
o BUT cannot be ―mere ratification of the bare conclusions of others‖ -
o Must be a ―balanced assessment of the relative weights of all the various indicia of
reliability (and unreliability) attending an informant‘s tip.‖ The factors in Aguilar of
basis-of-knowledge and veracity (I‘s ―track record‖) remain ―highly relevant‖ in
determining the value of informant‘s tip. Now, the strength of one prong or some
other indicia of reliability may compensate for weakness in the other prong.
DUTY OF REVIEWING COURT: ensure the magistrate had a substantial basis for
concluding that probable cause existed.
o If a source is known for unusual reliability or a citizen is known as honest and
fabrication would make him criminally liable—he shouldn‘t have to thoroughly set
forth the basis of his knowledge.
o Only the probability and not a prima facie showing of criminal activity is the
standard for probable cause.
o If it is too difficult to obtain a warrant, police might do more warrantless searches
hoping to rely on consent or another principle. Warrants give less of a perception of
unlawful intrusive police conduct.
o The two pronged test poorly serves the most basic function of the government: to
provide for the security of the individual and of his property—because it impedes the
police from doing their job.
o Anonymous tips may be useless if the two prongs are rigidly applied because often
tipsters cannot be contacted to get the required degree of detail, but when
supplemented by police investigation can solve crimes.
o Gates is controlling on the 4th Amendment
The S. Ct. has never quantified “PC.” To the contrary, the Court has described PC
as a “fluid concept,” “incapable of precise definition or quantification into
percentages b/c it deals w/ probabilities and depends on the totality of the
Courts use phrases such as “fair probability,” “substantial basis,” and “reasonable
grounds” to articulate the quantum of evidence necessary to prove PC.
PC involves less than a “50%+” likelihood of accuracy.
PC standard is objective and subjective:
PC is an objective concept. An officer‟s subjective belief, no matter how sincere, that
he has good cause to arrest a person or to conduct a search does not by itself
constitute PC. And, if there is objective PC, the officer‟s subjective motivations for
making the arrest - even if they are pretextual or malicious - are irrelevant to the
However, in determining what a “person of reasonable caution” would believe, a
court will take into account the expertise of the officer whose actions are under
scrutiny (e.g. an officer w/ specialized knowledge or experience).
Maryland v. Pringle: held that there was probable cause to arrest three passengers in a car where
there was probable cause to believe that felony narcotics possession had been committed by someone
in the vehicle. Cash and drugs were found in the car with three passengers. No one claimed
ownership, so they were all arrested.
*Note: 7 Supreme Courts still adopt the Aguilara-Spinelli test under state constitutions.
Whren v. United States: Police saw two youths in a truck with temporary plates waiting unusually
long at a stop sign. The driver looked down into the lap of the passenger. Police pulled a U-turn and
the truck turned without signaling and sped off. Police stopped the truck and immediately saw crack
cocaine in D‘s hands. The officers had probable cause to believe that petitioners had violated a
traffic code, regardless of the officer‟s specific intent for pulling petitioners over, therefore, the
temporary detention was consistent with the 4th Amendment‟s prohibition against
unreasonable search and seizure. Once there is probable cause (from a traffic violation), the
stop is reasonable, end of discussion.
Traffic violations give rise to a government interest. The government has an interest when
there is probable cause that the person was going over the speed limit. This outweighs the D‘s
liberty interest. AND the court has never held that ulterior motives do not invalidate police
conduct, if the police were acting with probable cause.
HOWEVER—there are some instances where searches are allowed without probable cause.
If there is a pretext for searching in cases where probable cause is not needed, the search will
not be upheld.
o HYPO: Driver is pulled over because of her political views or because she was a
woman, she might have an equal protection claim—but NOT 4th Amend issue.
Evidence is only excluded if it‘s a 4th Amend claim—not for an equal protection
o HYPO: What if the officer pulled them over, not knowing the person was speeding,
but it turns out that the video later shows the person WAS speeding –the search
would NOT be upheld. There must be a basis for what the officer knows.
Devenpeck v. Alford: A unanimous Court held that an arrest based on an offense for which there was
no probable cause is still consistent with the Fourth Amendment‘s probable cause demand, so long as
there is probable cause to arrest for another offense, even if it‘s not ―closely related‖ to the stated
Whren made it clear that an arresting officer‘s state of mind (except for the facts that he
knows) is irrelevant to the existence of probable cause and that his subjective reason for
making the arrest need not be the criminal offense as to which the known facts provide
Subjective intent is not a basis for invalidating an arrest.
If the information is based on what another officer knows (but not what the acting
officer knows) that arrest/seizure is also justified.
The Warrant Requirement
This chapter is concerned with the relationship between:
o Reasonableness Clause requirement
o Specific dictates of the 4th Amendment‘s ―warrant‖ clause.
The warrant clause does not explicitly demand a warrant to search or seize.
The history does not reveal concern about threats from warrantless searches.
Framers were concerned with the abuse of warrants to search and seize.
This is why there are certain requirements in the clause:
o ―probable cause, supported by Oath or affirmation‖
o must ―particularly describe the place to be searched, and the persons
or things to be seized.‖
Nowhere in the 4th Amendment does it say you need a warrant to do a search.
Warrantless searches are per se unreasonable (according to the reasonableness clause).
Search Warrant Requirements:
A. “Neutral & Detached Magistrate”
Neutral party must make the determination
B. “Oath or Affirmation”
Warrants must be ―supported by Oath or affirmation.‖
Therefore, a warrant defective for want of PC cannot be saved by post-warrant proof
that police had additional information that they failed to disclose to judge.
1. In General
The 4th Amend provides that warrants must ―particularly describe the place to be
searched, and the persons or things to be seized.‖
Particularly required to avoid abuses exemplified by general warrants and writs
of assistance used in English and colonial common law.
A warrant that lack particularity permits police officers too much discretion in its
execution and, thereby, undercuts the PC requirement.
2. “Place to be Searched”
The place to be searched must be described in the warrant w/ sufficient clarity
that the officer executing the warrant can identify it w/ reasonable effort.
3. “Persons or Things to be Seized”
Arrest warrant must identify the person to be arrested.
―Things to be seized‖ must be described in search warrants w/ sufficient
particularity that ―seizure of one thing under warrant describing another [cannot
Execution of Search Warrants:
A. In Anticipation of Execution
On occasion, the police may find themselves in a situation in which an exigency
justifying an immediate warrantless search does not yet exist, but in which they
have reason to fear such exigency will develop while they apply for the warrant.
In such circumstances, the police may wish to cordon off the area in anticipation
of the warrant. Yet, such action itself may constitute a warrantless seizure of the
property in question.
See Illinois v. McArthur below where: (1) police had PC to conduct the search
for contraband; (2) the police ―had good reason to fear that, unless restrained, D
would destroy the contraband; (3) the police made reasonable efforts to reconcile
their law enforcement needs w/ demands of personal privacy (e.g. they avoided
significant intrusions into the house until the warrant was obtained); and (4) the
length of time of the restraint was limited.
Basically, a temporary seizure, supported by PC, “designed to support the
loss of evidence while the police diligently obtain a warrant in a reasonable
period of time” is permissible.
B. Time of Execution
Oftentimes, jurisdictions, by statute or rule of procedure, will require that search
warrants be executed within a specified period of time - often w/in 10 days from
date that the warrant was signed by magistrate. Reduces problems of staleness.
C. Means of Entry
1. Knock-and-Announce Rule
At common law, absent special circumstances, an officer was not permitted to
enter a home forcibly to execute a warrant, unless he knocked at the door (or
otherwise indicated his presence), identified himself as an officer, stated his
purpose for entering, requested admittance, and was refused admission.
In Wilson v. Arkansas, the S. Ct. held that the common law knock-and-announce
―principle forms a part of the reasonableness inquiry under the 4th Amend.‖
In Hudson v. Michigan, the S. Ct. found three interests protected by the ―k-n-a‖
(1) “life and limb” - by alerting party in the location to prevent surprise
and reaction of self-defense;
(2) “property” - by giving party opportunity to open door and avoid
property damage from forcible entry; and
(3) “privacy and dignity” - such elements can be destroyed by sudden
entrance (e.g. giving person time to put clothes on or get out of bed
*Note: S. Ct. explained in Hudson that the 4th Amend exclusionary rule does
not apply to evidence discovered as result of search conducted in violation of the
―k-a-n‖ rule if the search was otherwise authorized by valid warrant.
2. Exceptions to “Knock-and-Announce” Rule
The knock-and-announce rule is qualified: there are exceptions.
See Wilson v. Arkansas below
Cases that have acknowledged the authority of police to enter w/out notice:
(1) threat of physical violence
(2) hot-pursuit situations
(3) likely destruction of evidence (i.e. police have reason to evidence would
likely be destroyed if advance notice were given)
*S. Ct. has determined case by case adjudication needed for 4th Amend
exceptions to “knock-and-announce” rule
*In order to satisfy one of the above exceptions, the police only need
reasonable suspicion (little more than a “hunch”).
If circumstances exigent, 15-20 seconds long enough wait before police enter -
See United States v. Banks
However, if non-exigent situation may need to wait longer but the S. Ct. has not
decided this question yet.
D. Search of Persons While Executing a Warrant
1. In Premises Open to Public
A warrantless search of a person on general public premises requires
independent PC and a justification for dispensing w/ the warrant
requirement (e.g. consent of exigent circumstances or Terry Stop).
See Ybarra v. Illinois
2. Private Homes
The question of whether police executing a search warrant of private premises may
frisk those present has not been answered by S. Ct.
E. Detention of Persons During Searches
Michigan v. Summers
S. Ct. has noted three justifications for the detention of persons during the
execution of a search warrant:
(1) to avoid flight of occupant w/ evidence sought;
(2) to reduce risk of bodily harm to officers or others; or
(3) to facilitate the search by inducing the detained occupants to open locked
containers or doors.
A warrant to search for contraband includes the limited authority to detain via
reasonable means (handcuffing even) all occupants of the premises to be
searched while the warrant is executed.
F. Scope of the Search:
Search warrant must describe particularity of place to be searched w/ adequate
precision - containers can be searched in the area described as long a they are
big enough to contain the object of the search
Search must end once objects sough are found
The Warrant Requirement & Searches of Persons, Houses, and Effects
The Warrant Requirement and Searches of Persons, Houses, and Effects:
Johnson v. United States: An informant told police that unknown persons were smoking opium
in the Europe Hotel. Police who were familiar with the drug investigated and found the smell of
opium unmistakable and determined it was coming from Room 1. Police knocked on the door, the
inhabitant denied possession. The D was placed under arrest and the room was searched without a
A warrant is required to conduct the search, even though a magistrate could have found
probable cause from the confidential informant and the officers‟ detection of the odor.
o The point of the protection is that a neutral party (not the officer) determines whether
there is probable cause. Otherwise, people would be subject to searches of their homes
based solely on the involved officer‘s judgment.
o There was no probable cause for arrest until the officers had entered the room and found
her to be the sole occupant.
Beck v. Ohio: ―Searches conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically
established and well-delineated exceptions.‖
The Warrant Requirement and Seizures of Persons:
United States v. Watson: informant told the postal inspector that D had stolen credit cards.
Informant met with D and gave police a signal that he had stolen cards. Police arrested and
searched D. Finding nothing they asked permission to search D‘s car. They found cards in D‘s
An arrest without a warrant is supported by the Fourth Amendment, so long as there is
probable cause for the arrest.
o Title 18 USC §3061(a)(3) expressly empowers Board of Governors of the Postal Service
to authorize Postal Service officer and employees performing duties related to the
inspection of postal matters to make arrests without warrant for felonies…if they have
reasonable grounds to believe the person is committing or has committed a felony.
o There is nothing in the Court‟s prior cases that indicates that under the 4th
Amendment, a warrant is required to make a valid arrest for a felony.
Carroll v. United States: ―the usual rule is that a police officer may arrest without warrant one
believed by the officer upon reasonable cause to have been guilty of a felony…‖
Gerstein v. Pugh: ―To require a warrant for an arrest when the arrest is supported by probable cause
would constitute an intolerable handicap for legitimate law enforcement.‖
Atwater v. City of Lago Vista: It‘s okay to arrest without a warrant AND it‘s okay to arrest for the
small crime. Is there any limit?— “If an officer has probable cause to believe that an individual
has committed even a very minor criminal offense in his presence, he may without violating the
4th Amendment, arrest the offender.” There is no limit.
o History—says only a breach of the peace misdemeanor is arrestable.
o Although D argues her liberty interest outweighs government‘s interest, there shouldn‘t have
sensitive case-by-case standard. It‘s too difficult to have officers apply a case-by-case
It‘s too hard to know what offenses are jailable.
It‘s too hard for the officer to know all the facts to know whether a particular person
The Issuance, Content and Execution of Warrants:
Grubs: Police have reason to believe that there are illegal items on their way to someplace. The key
is when the search is executed not when the warrant is issued. The warrant can be issued before
the arrival—but the execution must be when the contraband is present.
Otherwise, it violates the warrant clause‘s particularity requirement: ―particularly describing
the place to be searched and the persons or things to be seized.‖ The warrant failed to specify
the triggering condition for the execution of the warrant.
Triggering conditioned will occur (fair probability)
Illegal items will be there (fair probability)
Implicit that when you get an anticipatory warrant, you can‘t rush over and
start searching—you have to wait until the triggering event has occurred or is
likely to have occurred. It‘s a temporal limit on the scope of the warrant.
You are outside the scope of the warrant if you go prior to the triggering
event. BUT if you wait too long, the warrant may go stale.
Anderson v. Maryland: The court also rejected petitioner's argument that the searches were
unreasonable because they were based on general warrants. The warrants referred only to the crime
of false pretenses and were sufficiently specific. A search warrant for “all other evidence,” was
not too vague to be valid under the 4th Amendment.
In Anderson—they were as particular as they could be under the circumstances—here D was
convicted of fraudulent practices and papers that show intent to deceive were probative.
The particularity of the warrant depends on how specifically the item or place can be
described. There is a sliding scale. If it is not specific enough, it will be invalid.
When the police seize "mere evidence," probable cause must be examined in terms of cause
to believe that the evidence sought will aid in a particular apprehension or conviction. In so
doing, consideration of police purposes will be required.
When you have to specify where and what, it makes it more likely the judge will accurately determine
whether there is probable cause.
Groh v. Ramirez: an agent had a warrant to search a ranch for firearms, weapons parts, destructive
devices and receipts pertaining to those items. Although the application described the items, the
warrant did not. The Supreme Court found the warrant invalid and that the search had been
unreasonable, looking to the explicit language.
Franks v. Delaware: It is permissible to challenge the truthfulness of statements made in an affidavit
supporting application for a warrant.
Where the D makes a substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth was included by the affiant in the
warrant affidavit, and if the allegedly false statement is necessary to the finding of probable
cause, the 4th Amendment requires a hearing be held at the D‘s request.
If perjury is established by a preponderance of the evidence, and, with the affidavit‘s false
material set to one side, the affidavit’s remaining content is insufficient to establish probable
cause, the search warrant must be voided.
It is NOT invalidated if the conclusion it was based on turns out to be a mistake. A warrant is
not subject to attack as improperly issued because either the conclusion on which it was based
or the info supporting the conclusion ultimately proves erroneous.
Coolidge v. New Hampshire: the Court declared a warrant issued by a state Attorney General in his
capacity as a ―justice of the peace‖ to be unconstitutional→ not ―detatched.‖ Although not specified
in the text of the 4th Amendment, it is critical to the validity of a warrant that a ―neutral and detached
magistrate‖ demand the warrant.
Chadwick v. City of Tampa: Individuals charged with issuance of warrants need not be trained
lawyers. They must be capable of determining whether probable cause exists for the arrest or search.
Wilson v. Arkansas: A warrant was issued and the search was conducted. The main door of D‘s
home was open. Police entered through an unlocked screen door and announced that they were police
officers and had a warrant. They found drugs and the D flushing marijuana down the toilet. The
“knock and announce” principle forms only part of the reasonableness inquiry under the 4th
Amendment. Although in some circumstances, an officer‟s unannounced entry might be
unreasonable, it does not mean that every entry requires announcement.
Police officers reasonably believed that a prior announcement would have placed them in
peril, given their knowledge that petitioner had threatened a government informant.
Prior announcement would have produced an unreasonable risk that petitioner would destroy
easily disposable evidence.
Richards v. Wisconsin: there is no per se exception to the knock and announce principle for easily
disposable evidence. If per se exceptions were allowed for every category of criminal investigation
that included a considerable, but hypothetical risk of danger or destruction, the knock and announce
element would be meaningless.
The court must look to whether the facts and circumstances of the particular entry justified
dispensing with the knock-and-announce requirement.
Standard: to justify a “no-knock” entry, the police must have a reasonable suspicion that
knocking and announcing their presence, under the particular circumstances, would be
dangerous or futile, or that it would inhibit the effective investigation of the crime by, for
example allowing the destruction of evidence. Reasonable suspicion means less than
probable cause but more than nothing.
United States v. Ramirez: The reasonable suspicion standard that the Richards Court announced for
―no-knock‖ entries also applies when the entry results in the destruction of property. Police entered
by breaking a window without announcing prior. But excessive or unnecessary destruction of
property may violate the 4th Amendment, even though the entry itself is lawful and the fruits of
the search are not subject to suppression. Basically, the searcher can be sued for the damage if he
is excessive in damaging property.
United States v. Banks: Where police knocked and waited only 15-20 seconds before breaking in
the front door, the Court held that 15-20 seconds without a response was enough for a ―reasonable
suspicion‖ that evidence was being disposed of if they were reticent any longer.
Banks illustrates two things:
o When officers justify an entry after a knock and announcement on failure to let them
in, it suggests a refusal to let them in. Whether there was refusal depends on whether
an occupant has had enough time to get to the door. This depends on the size of the
o The need to damage property in order to enter does play a role in assessing
reasonableness in an entry where there is NO reason to suspect an immediate risk of
frustration or futility in waiting.
Wilson v. Layne: ―It is a violation of the 4th Amendment for police to bring members of the media
or other third parties into a home during the execution of a warrant when the presence of the third
parties in the home is not in aid of the execution of the warrant. In such cases if the warrant is valid,
the presence of the police is lawful, but the 4th Amendment is violated by the presence of the media.
The privacy rights protected by the 4th Amendment are more valuable than any government
purpose in publicizing arrests.
Third person may be taken in, but ONLY if they are ―directly in aid in execution of the
This exceeds the scope of the warrant.
SCOPE: A valid search might be invalid if the ―scope‖ of the warrant is exceeded
Searches of places too small to contain a computer (if that is the item searched for) are
unreasonable because the privacy invasions entailed in those searches are not justified under
the warrant. The search stops when you find the items. But if the warrant doesn‘t limit a
quality (as in marijuana) you can still look after you find some because there might be more.
Exceptions to the Warrant Requirement
The search warrant requirement is one of the most fundamental principles of the 4th
Amendment BUT the Court acknowledges a few exceptions:
o Searches Incident to Lawful Arrest (SILA)
o Exigent Circumstances searches
o Automobile Doctrine searches
o Inventory searches
o Consent searches
o Plain View seizures
*This list is not exhaustive also includes:
Terry frisk doctrine
TLO v. New Jersey School Searches
Drug testing authorized by Skinner v. Railway Labor Association
For each exception, three aspects should be identified and explored:
o The underlying rationale of the exception
o The precise showing necessary to invoke the exception
o The scope of the warrantless authority conferred by the exception
Searches Incident to Lawful Arrest (SILA):
Searches Incident to Lawful Arrest:
A police officer, who makes a lawful full custodial arrest, may conduct a
contemporaneous warrantless search of: (1) the arrestee‟s person; and (2) the area
within the arrestee‟s immediate control (“grabbing” or “lunging area”).
o If the arrest occurs in a home, the police may also conduct a
warrantless search of “closets and other spaces immediately
adjoining the place of arrest from which an attack could be
o If the police arrest a recent occupant of a vehicle, they may search
the passenger compartment of the vehicle, even if the arrestee does
not have immediate access to it, if the officers have reasons to believe
that evidence relevant to the crime of arrest might be discovered
SILA searches flow from arrest itself. That is, police may conduct such a
warrantless search even if there is no reason to believe that weapons, evidence, or
dangerous persons will be discovered.
One Critical Clarification: even if the arrestee is no longer able to get inside his
vehicle to destroy evidence or seize a weapon - and, thus, an automatic search is not
permissible - a search of the passenger compartment of the vehicle is still permitted
if it is “reasonable to believe” evidence relating to the crime of arrest might be
B. For the Seizure of Evidence:
An officer, without a warrant, may seize any article discovered during a lawful
SILA search, even if it relates to a crime unrelated to the arrest, but only if the
officer has PC to believe the object constitutes constitutionally seizable evidence, i.e.
that it is contraband, or is an instrumentality, fruit, or evidence of a crime.
C. Warrant Exception: In Detail
1. “Full Custodial” - SILA applies to arrests in which officer takes suspect into
―full custody‖ = transports the arrestee to police station for booking.
2. Lawfulness of the Arrest - If an arrest is constitutionally unlawful, the
incidental warrantless search cannot be justified on the basis of this warrant
exception. To be constitutionally lawful the police must have PC and, in limited
circumstances, an arrest warrant.
3. Area w/in Arrestee‟s Immediate Control - An officer‘s right to conduct a
search w/in immediate control of an arrestee is limited to searches conducted
contemporaneously w/ arrest. - must be―incident of the arrest.‖
o Closets & Other Spaces Adjoining Place of Arrest -
Once person is removed from home, search justification under SILA
o Of the Person - see pp. 190-91 of Understanding
4. Scope of Search - Right to search a person incident to a lawful arrest includes
the right to search the pockets of arrestee‘s clothing, and to open containers found
Therein, as well as to search containers ―immediately associated‖ with the person,
such as purse or shoulder bag, as long as containers are large enough to conceal
weapon or evidence of crime.
*Note: Testing person‘s blood for evidence of alcohol is NOT justifiable
under SILA but may be under other doctrines.
SILA Case History:
Chimel v. California: Officers went to D‘s home to arrest him. He wasn‘t there. Police
waited with D‘s wife. When he arrived, the police arrested him and asked permission to
search his home. Permission was denied but policed searched the entire house anyway
claiming they could as an ―incident to arrest.‖ They found and seized incriminating evidence
in drawers in other rooms in the house. With an arrest warrant, but no search warrant,
police can search the person and the area within his immediate control, where he might
gain possession of a weapon or destructible evidence, but no further than that.
o There is justification to search the area within the D‘s immediate control—so long as
that is construed to mean an area where D could gain access to weapons or
destructible evidence—but there is no justification for searching any room where the
o Another standard could potentially lead to shady police tactics—they could arrest in
the home purposely to search in the home.
o If police can search the home when an arrest is made there, it is indistinguishable
from a general warrant.
United States v. Robinson: Police officer had reason to believe D was operating a motor
vehicle after the revocation of his operator‘s permit. He was pulled over and arrested. The
officer searched him in accordance with procedure and found heroin in a cigarette package in
the D‘s pocket. The search of respondent‟s person in this case and the seizure of heroin
were permissible under the 4th Amendment as an “incident of arrest.”
o Although in this case there was no evidence that the officer might ascertain, he still
needs to disarm the arrestee. Therefore, a Terry Stop is not the appropriate standard.
o Here, there is more exposure to the police for a longer period of time than in a simple
o There should not be a case by case standard because it is too hard to apply. It is
necessary to have a quick ad hoc judgment. The officer‘s decision needs to be quick
and ad hoc. It‘s too hard to determine when there is/is not a threat. There needs to be
a clear rule.
Gustafson v. Florida: There is no difference if the officer chooses to arrest/search the D or if
he is required by law. So long as there is probable cause, the search is constitutional.
Gustafson tried to distinguish his case from Richards because it was not police procedure to
search at every arrest. It was up to the officer. The Court rejected the distinction—but maybe
opens the door for singling people out unfairly?
*Knowles v. Iowa: The Iowa Supreme Court said that there was search incident to citation
authority (if you could be arrested but chose to give you a citation instead)—you have the
same authority to search as though you were arrested.
New York v. Belton: Officer pulled over an unmarked speeding car. The officer determined
none of the four men in the car was the owner or was related to the owner. When he pulled
them over the officer smelled burnt marijuana and saw an envelope near the driver‘s seat that
read ―supergold.‖ The officer arrested the men and separated them and searched the car.
They found marijuana in the envelope and searched Belton‘s jacket in the back seat and
found cocaine. When a policeman makes a lawful arrest of an occupant of an
automobile, he may search the passenger compartment of the automobile and may also
examine the contents of any containers found within the passenger compartments
within reach of the arrestee.
Requirements for Search of a Automobile:
o Recent occupant (how long is that?)
o If person had to still be in the car—it would be dangerous for officers.
The entire interior/passenger compartment = searchable.
o Generally, but not inevitably a person in a car can reach everything. The virtue of
clarity outweighs the interest for narrow requirements of what a person could actually
Thornton v. United States: the issue was whether Belton‘s rule is limited to situations
where the officer makes contact with the occupant while the occupant is inside the vehicle, or
whether it applies as well when the officer first makes contact with the arrestee after the latter
has stepped out of the vehicle. It doesn‟t matter whether the officer approaches them
while in the car or not, so long as the person was a recent occupant.
Washington v. Chrimsan: Established a new exception to the warrant requirement in the
context of arrests: An officer could enter the dorm room of an arrestee without a warrant
because, ―it is not unreasonable under the 4th Amendment for a police officer as a
matter of routine, to monitor the movements of an arrested person, as his judgment
dictates following the arrest.‖—it ensures his safety and the integrity of the arrest. But the
officer probably couldn‘t invent a reason to need to go inside. In that it ensures safety and
integrity of the arrest—it is like a search incident to arrest.
The Change Comes: Arizona v. Gant
Arizona v. Gant (2009):
SILA searches restricted to circumstance where it is reasonable to believe that:
1) the arrested individual might access the vehicle at the time of the search; or 2)
the arrested individual's vehicle contains evidence of the offense that led to the
“Arrest v. Seizure”
An arrest must always be founded on PC constitutes a ―seizure‖ of the person as that term in
the 4th Amend.
Temporary Detention also = ―seizure‖
Arrest Warrant: Constitutional Law
Rule: A police officer may arrest a person:
(1) in a public place w/out a warrant, even if it is practicable to secure a warrant;
(2) may NOT arrest a person in her home w/out an arrest warrant, absent exigent
circumstances or valid consent; and
(3) absent exigent circumstances or valid consent, may not arrest a person in
another person‟s home w/out a search, and perhaps an arrest, warrant.
How Arrest Warrant Issues Arise
o The constitutionality of a warrantless arrest arises as an issue in a criminal
prosecution in an evidentiary context when the arrest results in the seizure
of evidence that the Gov‟t wishes to use against arrestee at criminal trial.
Arrest in Public Place: the No-Warrant Rule
o United States v. Watson: Felony Arrests in Public Places = Constitutional
Arrest in Arrestee‟s Home: Warrant Requirement Rule
o Payton v. New York: 4th Amend prohibits warrantless, nonconsensual entry into a
suspect‘s home in order to make a ―routine‖ - felony arrest.
o S. Ct. stated: absent exigent circumstances, nonconsensual entry into suspect‘s
home to make arrest requires arrest warrant and ―reason to believe the suspect is
o S. Ct. stated: “physical entry of a home is the chief evil against which the
wording of the 4th Amend is directed.”
Scope of the Rule:
“Home” v. “Public Place”
o An arrest warrant is required (absent consent) for a routine arrest of the D in
her home (Payton), including her temporary residence (e.g. a motel room).
o HOWEVER, warrantless arrests in public places are constitutional (Watson).
Exigencies Justifying Warrantless Entry:
o Warrantless entry of home is permitted in hot pursuit of a fleeing felon.
o United States v. Santana: ―hot pursuit‖ involves some sort of chase
o Minnesota v. Olson
The police may nonconsensually enter a home without a warrant
not only in hot pursuit of a felon, but also if they have reasonable
cause to believe that if they do not enter immediately; (1) evidence
will be destroyed; (2) the suspect will escape; or (3) harm will
result to the police or others either inside or outside the dwelling. In
assessing the exigency, the gravity of the crime and the likelihood that
the suspect is armed must be considered.
o However, Welsh v. Wisconsin limited Olson by holding:
S. Ct. stated: ―Application of the exigent-circumstances exception in the
context of a home entry should rarely be sanctioned when there is PC to
believe that only a minor offense has been committed
Gravity of Crime = Critical Factor
S. Ct.: ―It is difficult to conceive of a warrantless home arrest that would
not be unreasonable when the underlying offense is extremely minor.‖
Arrest in Third Person‟s Home:
Payton (HOUSEHOLDER): teaches that when police seek to enter a person‘s own
home in order to arrest her, they must (absent consent or emergency) have an arrest
warrant (a search warrant is not required). Remember, if police search D‘s home looking
for D, for whom they have an arrest warrant, any evidence that is found in plain view
may be seized and used against D, although they lack a search warrant.
Steagold v. United States (HOUSE GUEST): A person whose home is searched for the
presence of a guest is entitled, absent emergency or consent, to a prior judicial
determination of PC to search the premises for the person to be arrested. Thus, search
warrant is required.
*Note: Even a brief stay does not convert guest into householder.
Beyond Warrants: Executing An Arrest:
Arrests in the Home: When & How Entry of the Residence is Permitted
o The Fourth Amend ―requires that police actions in execution of a warrant be
related to the objectives of that authorized intrusion.‖
o Hence, a valid arrest warrant grants limited authority to enter a dwelling in which
the suspect lives WHEN THERE IS REASON TO BELIEVE THE SUSPECT IS
WITHIN. Payton v. New York.
o Knock -and-Announce Rule
Force in Making an Arrest
o Police must not use excessive - unreasonable - force in seizing a person, whether
to arrest or temporarily detain.
o Tennesse v. Garner: ―[t]he use of deadly force likely to prevent the escape of all
felony suspects, whatever the circumstances, is constitutionally unreasonable. It
is not better that all felony suspects die than they escape.‖
o Police officer may not use deadly force to prevent suspect escaping arrest
UNLESS two conditions are met:
(1) Officer has PC to believe that suspect poses significant threat of
death or serious physical injury to officer or others; AND
(2) Officer must reasonably believe that deadly force is necessary to
make arrest or prevent escape.
o The Court later announced Garner‘s reasoning to ―all claims that law
enforcement officers have used excessive force - deadly or not - in the course of
an arrest, investigatory stop, or other ‗seizure‘ of a free citizen should be
analyzed under 4th Amend ‗reasonableness‘ standard.‖
o In 2007, Scott v. Harris: Reaffirmed Garner and emphasized that whether
―excessive force‖ was used is a fact-bound inquiry
SEARCH FOR ARRESTEES:
o If police have PC to believe someone committed a crime, they can arrest in public, or
if invited in. BUT—they cannot break into a home to arrest.
o Search Warrant IS DIFFERENT from an Arrest Warrant:
An arrest warrant requires that there is a probability that the D committed a
For a search warrant—you have to show that the goods are likely to be in the
With an arrest warrant, the officers get the warrant and they determine if the
D is inside his home. If there is a search warrant, the court decides.
o Therefore, an arrest warrant provides less protection than a search
warrant—because you don‘t have the determination by a neutral
Payton v. New York: Police broke into a house for a felony arrest without a warrant
pursuant to a NY statute. The D was not in the home, but a gun was in view. It was seized by
the police. In another case, police came into the house when a three-year-old answered the
door, the D didn‘t give consent for the police to come in, but the police came in. The issue is
whether a statute can authorize police officers to enter a private residence without a warrant
and with force, if necessary, to make a routine felony event. For 4th Amendment purposes,
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 within.
o Why different standards for search and arrest?
Officer‘s mistakes are less costly when there is PC to believe the D is a felon.
Less likely to make a mistake on whether the D is in the house than if there is
contraband in the house.
There are clues to a person‘s presence that does not exist for objects.
People are in their homes most of the time.
Steagald v. United States: an informant told police where they could find Ricky Lyons for
the next 24 hours. Two days later, the police came to the residence and did not find Lyons,
but searched the house and found cocaine in the home owners‘ home. The police obtained a
search warrant and seized the cocaine and arrested and indicted the homeowners with federal
drug charges. The issue was whether an arrest warrant, as opposed to a search warrant, is
adequate to protect the 4th Amendment interests of persons not named in the warrant, when
their homes are searched without their consent and in the absence of exigent circumstances.
The warrant for Lyon‟s arrest made it no more reasonable than had there been no
warrant at all to invade D‟s privacy interest because there was no detached magistrate
and no exigent circumstances. You need a search warrant to invade a private home
owner‟s home to arrest.
o Distinguishing Steagald from Payton:
Steagald protects the homeowner. Here, there is an arrest warrant, but no
Steagald won because they needed a search warrant. The claimant here is
There are two separate interests of the arrestee and homeowners.
*United States v. Santana: a suspected felon who stood precisely in the threshold of the
front door of her home was subject to warrantless arrest under Watson—it was a public place.
Exigent Circumstances Searches:
Warden, Maryland Penitentiary v. Hayden: After robbing a cab company, D was seen
running into a house. Police knocked on the door and were allowed in by his Mrs. and
searched the house for him and also found guns, ammunition, clothing that matched the
robber‘s description. The search which recovered clothing matching the robber‟s
description was valid, because the police officer who found them was justified in
looking for weapons.
o They were able to enter without a warrant because speed was essential. There was
an enhanced danger that he‘ll escape and they are in hot pursuit.
o It had only been 5 minutes— it been 4 hours later, it would have been different.
o Searching the house for other people and weapons and for the robber was the only
way to ensure safety.
o Even though the officer who found the clothes never explicitly stated that he was
looking for weapons when he found them, it is reasonable that that is what he was
doing because of the circumstances. They can look wherever is necessary to
prevent danger: here, where weapons or a person could objectively be found.
o Some exceptions to the warrant rule also suspend the need for probable
cause—but this exception does not. It ONLY suspends the need for a warrant.
If cab drivers were not sure which house D went into—the search would
not be justified—no probable cause.
If it were someone else‘s house—the Steagald principle is suspended. The
government could still search. The government‘s interest outweighs the
Once they arrest, they cannot continue to search for weapons.
Although they still have probable cause—the weapons are no threat, so
they need to have a warrant.
Richards v. Wisconsin: an exception to the “knock-and-announce” requirement is justified by a
“reasonable suspicion” that harm will occur if officers knock and announce their presence and
United States v. Santana: the exigency created by ―hot pursuit‖ of a suspect justified the warrantless
entry of a dwelling.
Welsh v. Wisconsin: the Court invalidated a warrantless arrest in D‘s home and relied heavily on the
―relatively minor‖ nature of the offense. NO Exigent Circumstances:
Hot Pursuit –no immediate and continuous pursuit—he‘s not alerted that he‘s being chased.
There is no reason to believe he‘s going to keep going.
Public Safety – no remaining threat to public safety
Preserve Evidence—is important, but Wisconsin classified the offense as ―noncriminal, civil
forfeiture offense for which no imprisonment was possible. It‘s rarely sanctioned for minor
Intrusions Inside the Human Body - Schnerber v. California: S was arrested at hospital for
driving under the influence of alcohol. On the order of arresting officer, a physician took
blood sample from S to test for BAC. S. Ct. upheld this search b/c the evidence - alcohol in
bloodstream - would have been lost if officers had to have waited for warrant. Evidence was
in process of being destroyed since the body eliminates it from system.
RULE: (1) police justified in requiring individual to submit to test; and
(2) the means and procedures employed to conduct the test are reasonable.
Winston v. Lee: Under the skin procedures will be rarely granted and only for compelling
reasons. Police sought order directing L, who had been arrested for attempted robbery, to
undergo surgery to remove a bullet lodged under his left collarbone
Brigham City, Utah v. Stuart: upheld a warrantless entry into a home after police witnessed a fight
that involved four adults and a juvenile. One exigency obviating the requirement of a warrant is
the need to assist persons who are seriously injured or threatened with such injury.
Although D argued that the police were more interested in making arrests than quelling
violence, the officer‘s subjective intent is irrelevant.
This was distinguishable from Welsh because there was ongoing violence at the time.
Vale v. Louisiana: Police were doing surveillance outside D‘s home with two arrest warrants for D.
They witnessed a drug deal between D and another. Police arrested D outside of his home and told
him they were going to search his house. They found narcotics. An arrest on the street does not
provide its own “exigent circumstance” to justify a warrantless search of the arrestee‟s house.
o This case is very fact specific—in these particular circumstances, there was not enough
showing to go in. The lesser intrusion could be justified on a lesser government interest.
Exigency isn‘t justified by mere speculation. There is no reason to believe that when the
mother or brother goes in he/she is going to get rid of the drugs. Too often would there be a
suspension of the warrant rule. There is too low a risk that evidence will be destroyed to
outweigh the privacy interest.
Officers knew that there was no one in the house when they first entered, so no one
could be destroying evidence.
The arrest must take place in the house to justify a search of the house, and even
then it‟s limited according to Chimel.
It was not impracticable to get a search warrant, the police were able to obtain arrest
Illinois v. MacArthur: After his wife informed police that he had dope under the coach, they
requested to search his residence. He declined. When he was on the porch, one officer went to get a
warrant, while the other prevented him from re-entering with police accompaniment until the other
returned. The court upheld the search because:
They had probable cause to believe the house had contraband and they
Reasonably believed that the home‘s resident, if left free from restraint would destroy the
The restraint was limited and tailored reasonably to secure law enforcement needs while
VEHICLE & CONTAINER SEARCHES
EXTRA OUTLINE INFORMATION:
Searches at the Scene:
An officer may conduct an immediate at the scene warrantless search of an automobile that he
has probable cause to believe contains contraband, or fruits, instrumentalities, or evidence of a
crime if : 1) he stops the car on the highway; or 2) the vehicle is readily capable of use on the
Searches away from the scene:
Police can seize the car and remove it to some other area and then search it there without a
Probable cause requirement
Probable cause still required for the search.
California v. Acevedo:
Police saw ∆ place bag in the truck and had probable cause to believe that bag contained
contraband. On these facts, the police had probable cause to search only the trunk to look for
the paper bag.
Also, once the police discover the criminal evidence, the search must STOP- so in
Acevedo, once bag found, police cannot continue searching for other evidence.
Police may not search any portion of the vehicle that could not contain the object of the
Carroll v. United States: S. Ct. held that police can search car without warrant because car, unlike
home, is mobile.
Chambers v. Maroney: Police seize the car so no exigent circumstances. But later search allowed
because S. Ct. said that exigent circumstances are to be determined at the scene of the seizure.
California v. Acevedo: If the police have PC to believe that a container contains contraband, they
may wait until the container is in the car, stop the car, and seize and open the container, all without a
This case overruled Arkansas v. Sanders where the Court had held that if police had PC to
believe that a container contained contraband, and the container was placed in a car, the
police could not have searched the car without a warrant, unless there existed some exigent
circumstances. According to the Court, the Sanders case failed to provide any additional
privacy to people and confused the officers.
But Acevedo ruling does not extend the Carroll rule. If officers don‘t have PC to search all of
the car, then can only search the areas where have PC.
California v. Carney:
Automobile exception applies to mobile homes because lesser expectation of privacy. ―When
vehicle is being used on the highways, or if it is readily capable of such use and is found
stationary in a place not regularly used for residential purposes the two justifications for the
vehicle exception come into play.‖
CONTAINERS IN CARS:
A container is any object capable of holding another object.
Rules: A container, even one belonging to a passenger, may be searched without a warrant
during an otherwise lawful automobile exception search, even shortly thereafter at the police
United States v. Chadwick: Court held that police could have seized the container but not
search it without a warrant after container removed to the police station. According to the
Court, container is not as mobile as a car and also, there is greater expectation of privacy in a
Arkansas v. Sanders (overruled by Acevedo):
Facts similar to Chadwick but this time police allowed the vehicle to drive away and then
stopped and seized the container and searched it without warrant. Court said just because
container was in a car does not mean there was a lesser expectation of privacy. Furthermore,
the exigency of mobility must be assessed at the point immediately before the search- after
the police had seized the object to be searched and have it securely within their control.
United States v. Ross:
Here, unlike Chadwick-Sanders, police had probable cause to search the car and happened to
run upon the container. Searched the container without warrant. Court upheld this search. If
probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of
every part of the vehicle and its contents that may conceal objects; even containers belonging
innocent passengers or people not connected to the car at all.
So after Ross, 2 lines of container cases:
If probable cause to search a container which was placed in a car, Chadwick-Sanders applied
and needed search warrant.
If probable cause to search a car, and container happened to be found during the lawful
search, auto exception applied and container could be searched.
California v. Acevedo:
Court overruled Sanders and announced that interpretation of the Carroll doctrine set forth in
Ross now applies to all searches of containers found in an automobile. In other words, the
police may search without a warrant if their search is supported by probable cause.
According to the court, the discrepancy between the two rules has led to confusion for law
What is left of Chadwick?
o Court has never really overruled Chadwick. So if person carrying trunk on the
street, police will need warrant to search. But if places in car, can search is without
a warrant. This in itself creates an anomaly.
Wyoming v. Houghton:
Police officers with probable cause to search a car may inspect passengers‘ belongings found
in the car that are capable of concealing the object of the search.
Only limit which is present is the size limit. So if probable cause to find stolen TV in car,
can‘t look into small paper bags.
VEHICLES & CONTAINER SEARCHES:
The pattern in the automobile exception starts out narrow and has been broadened through
time. It can be used under more circumstances and officers have greater authority to search.
You can look wherever there is PC to look—locked/unlocked
However, if you have PC to believe that something is only in the
glove compartment, that‟s where you look (and the only place
Where (station or on the spot) can you search the car? You can do a
warrantless search either place.
Time: United States v. Johns.—cannot delay indefinitely to conduct the
o Two possible exceptions to the car exception:
(1) Used as residence not transportation
(2) Cars parked on private property.
o The rule went from: police can never search cars or containers without a warrant, to
sometimes cars and sometimes containers to always cars and containers in cars
without a warrant.
o Cars generally do NOT need warrants.
o Containers in cars—do NOT need a warrant
o You need a warrant if your cause is only to search the container, but if you have
cause to search the car and you find a container—then you don‘t need a warrant.
o Chadwick controls containers outside of a car
Chambers v. Maroney: witnesses saw two teenagers ―tear‖ out of a gas station parking lot in a blue
station wagon, learned it had been robbed and called the police. Within the hour, police found a car
matching the description with men that matched the witnesses‘ description and pulled them over and
arrested them. The car was taken to the police station and searched. Police found a gun and cards
belonging to someone who had been robbed at gunpoint earlier. If there is PC, and the vehicle to be
searched is movable, police can search the vehicle immediately until a warrant can be obtained
for a search.
A search warrant is unnecessary where there is PC to search an auto stopped on the highway
o 1) Car is movable,
o 2) Occupants are alerted, and
o 3) Car‘s contents may never be found again.
So far, to search a car police need:
o Probable Cause
o An Automobile
o Moving/stopped on the highway (People are alerted and contents may never be
found if it is not searched)—this is a subspecies of exigency.
United States v. Johns: Police may not “indefinitely” delay a warrantless vehicle search. An
aggrieved person might try to prove the delay was unreasonable because it adversely affected a
privacy or possessory interest. In this case, a three-day delay was not constitutionally unacceptable.
Texas v. White: D attempted to pass fraudulent checks at a bank. He was pulled over and seen by
bank employees trying to stuff something under his seat. He was arrested and taken to the station
while another officer drove his car to the station. They asked to search the car, D refused but police
searched anyway. They found checks crumpled under the seat. A warrantless search of a car at the
police station is acceptable under the 4th Amendment, so long as there is probable cause.
California v. Carney: A youth exiting a mobile home told police he had exchanged sexual contact
for drugs. Police entered the mobile home without a warrant and found drugs, plastic bags and a
scale. They took possession of the motor home and arrested the D. Police did not violate the 4th
Amendment when they conducted a warrantless search on probable cause of a fully mobile
motor home in a public place. You can search a car in a public place.
o Test: The car exception turns on:
This might be relevant: Whether the vehicle is in a setting that objectively
indicates that the vehicle is being used for transportation - if it‘s on blocks,
plugged in, not licensed, and the searchee is actually living in it—not just a
place it could be lived in, etc. The maybe is vehicles that are being used
exclusively as a residence.
Diminished expectation of privacy (the area in cars is in plain view )
Government has a need for regulation.
Pennsylvania v. Labron and Pennsylvania v. Kilgore: Ready mobility is exigency enough to
justify a warrantless search so long as there is PC because there is also a reduced expectation of
privacy in an auto. Therefore, the searches of the autos without additional exigent circumstances did
not violate the 4th Amend. The justification for the exception applies even if in your own driveway.
Florida v. White: Police saw D use his car to deliver cocaine. Months later, he was arrested on
unrelated charges and the police seized and searched his car from an employer‘s parking lot without a
warrant. The Supreme Court upheld the search. Watson—which supports the seizure of a person in
public also applied to the property in public.
Coolidge: Plurality said that a car cannot be searched without a warrant when it is in private
property—but that reasoning has been undermined.
o You can search at the station or on the spot:
There is a di minimus intrusion beyond the search
It‘s always more convenient for the police to do it at the station.
United States v. Chadwick: Amtrak called the cops on two guys who had a suspicious trunk. The
police brought a drug sniffing dog onto the train. The dog indicated there were drugs. After the Ds
loaded the trunk into their car, police arrested them and took the footlocker to the station where it was
searched an hour and a half later with no consent or warrant. Since there was no exigency, it was
unreasonable for the Government to conduct this search without the safeguards a judicial
warrant provides. They can seize the container but cannot search until they get a warrant (this
is Harlan’s argument for cars).
o Distinguishable from Autos: Here they are treated differently because there is a higher
expectation of privacy in the locker. The privacy right in the locker is greater than the
property right—so officers must do the lesser harm. The Court is ranking privacy and
property interests. Government argues that rationale of the auto search applies to
luggage—it‟s mobile. But mobility is not the only rationale for the auto exception—
there is also decreased privacy expectation.
o Extends 4th Amendment protection to warrant clause. The purpose is to safeguard privacy in
general, not just in the home and locked containers give an increased privacy expectation.
o Controlling for containers outside the car
California v. Acevedo: Police saw D leave an apartment with a package about the size of a package
someone else just brought in which police knew was pot. They pulled him over and searched the
trunk and found the bag. The 4th Amendment does not require the police to obtain a warrant to
open a sack in a movable vehicle simply because they lack PC to search the entire car.
o Although, Sanders held: There is heightened privacy expectation in personal luggage and the
presence of luggage in an automobile did not diminish the owner‘s expectation of privacy in
his personal items. There is a need for one clear cut rule to avoid confusion, therefore the
Sanders rule is eliminated.
o NEW RULE: The police may search without a warrant if their search is supported by
probable cause. But only what is supported by probable cause. The police cannot look
anywhere else in the car if they only have probable cause that there is contraband in the
Wyoming v. Houghton: Three people were pulled over in a car. The officer saw a syringe in the
male driver‘s pocket. The police saw a purse in the car which belonged to a female in the car. The
purse had drugs in it. She claimed to police didn‘t have probable cause to search her purse. Police
officers with probable cause to search a car may inspect passengers‟ belongings found in the car
that are capable of concealing the object of the search.
o There is a lower expectation of privacy for passengers as well.
o Cases D relied on are distinguishable because of the heightened expectation of privacy of the
person. The cops could not search the passenger‘s coat.
South Dakota v. Opperman: A vehicle was parked illegally and towed. A police officer took
inventory of the contents of the car and found marijuana. The D was subsequently arrested. This is
NOT really a warrant case because there is no probable cause here. Guarding against bias, etc. is not
an issue here. In following standard police procedures, the conduct of police taking inventory of
items in a towed car is not “unreasonable” under the 4th Amendment.
o Government Protection Interests:
(2) Claims of Lost/Stolen Property
o For this standard to apply there must be:
Lawful Impoundment (could not use this rationale in a public parking lot where D
chose to take it). Impoundment gives rise to the interests.
Standardized Established Procedure (not the concern about deferring to the
judgment of the officer)
o Intimates that ―inventories‖ might not be ―searches‖ at all.
Illinois v. Lafayette: Officer arrested D for disturbance of the peace. He took the D to the station and
found drugs. Officers did not have probable cause. It is not unreasonable for police, as a part of a
routine procedure incident to incarcerating an arrested person to search any container or
article in his possession, in accordance with established inventory procedures.
o You can search a person immediately after arrest for safety, and the search is even more
justified in some cases at the station house. The search is more private there.
o It‘s unreasonable to make police distinguish between what containers can and cannot be
Colorado v. Bertine: D was arrested for DUI. Police searched his truck after his arrest, but before
the car was towed. Reasonable police regulations relating to inventory procedures administered
in good faith satisfy the 4th Amendment, even though courts might as a matter of hindsight be
able to devise equally reasonable rules requiring a different procedure.
o Acted within police procedure
o The government interests of Oppenheimer still apply
o Lower expectation of privacy in a car.
Florida v. Wells: S. Ct. Dictum: There is no reason that searches of this kind be done on an all or
nothing basis—a police officer may be allowed latitude to determine whether a particular container
should or should not be opened in light of the nature of the characteristics of the container itself.
o The allowance of the exercise of judgment based on concerns related to the purpose of
an inventory search does not violate the 4th Amend.
*Note: The Supreme Court has not determined whether or to what extent the police may read papers
and documents found during an otherwise valid inventory. However, five justices from Opperman
suggested that reading of papers that touch upon intimate areas of a person‘s private life should not be
routinely allowed. Think about the three main justifications for inventories.
o NO PC and NO Search Warrant Required
(2) Voluntary(not coerced)
(3) Authority to consent
o Why is consent an exception?
Non-search because there is no reasonable expectation to privacy.
Even if you don‘t know that you have the right to refuse, you had a right not to allow
the search and you knew it, and you freely gave up your privacy.
o CONSENT ELEMENTS:
(2) Given Voluntarily
(3) By person with authority
(4) No objection to co-occupant who is present
Schneckloth v. Bustamonte: D gave permission for search of his car and even opened his trunk so
the officers could look inside. They found stolen checks and arrested D. D claims there was coercion.
In this case, there was no probable cause or incident to arrest. When the subject of a search is not in
custody and the state attempts to justify a search on the basis of his consent, the 4th and 14th
Amendments require that it 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, and
while the subject‘s prosecution is not required to demonstrate such knowledge of a
right to refuse is a factor to be taken into account, the prerequisite to establishing a
Ohio v. Robinette: D was stopped for a traffic violation and officer asked before D ―gets gone‖ if he
could search the car. Citizens stopped for traffic offenses need not be clearly informed by the
detaining officer when they are free to go after a valid detention before a consent search. There
was no 4th Amendment violation.
United States v. Matlock: Police came to D‘s house after D was arrested and asked D‘s wife if they
could search the house. She allegedly consented. Consent for a search need not be from the D,
but can be from someone with common authority over or with sufficient relationship to the
premises or effects sought to be inspected.
o Who has authority to consent?
Anyone who has MUTUAL USE of the PROPERTY. People generally having
joint access and control for most purposes.
Property is NOT required, and property ownership is NOT enough to establish
authority to consent—its use. That‟s why a landlord can‟t give consent.
o Why is it okay for someone else to give consent?
Assumption of the risk—like the informant cases. By sharing the private space
with another, you know they have the ability to let anyone in.
Florida v. Johnson: The scope of a consent search is governed by the standard of objective
reasonableness: what would a reasonable person have understood by the exchange between the
officer and suspect? General, unrestricted consent to search for narcotics in a vehicle makes it
reasonable to understand that consent extends to the vehicle and unlocked containers in the
vehicle. You can limit the scope of a search explicitly.
Illinois v. Rodriguez: Victim of domestic abuse had moved out of the home with her abuser and into
her mother‘s house. She talked to the police and took them to the abuser‘s home and allowed them to
search. Abuser was arrested. There was no search or arrest warrant. Even if the police‟s belief that a
consenter has authority to consent is inaccurate, it will be upheld if the belief was reasonable.
o Standard: The determination of consent to enter must be ―judged against an objective
standard: would the facts available to the officer at the moment…‘warrant a man of
reasonable caution in the belief‘‖ that the consenting party had authority over the premises?
o The 4th Amend doesn‟t guarantee no search without consent, it guarantees against
unreasonable searches. Here—it cannot be unreasonable because they reasonably
believed she had authority to consent. IMPORTANT POINT!!
Georgia v. Randolph: Wife gave the police permission to search the house after her husband refused
consent, they found cocaine. The officer went to his car to get an evidence bag and phoned the district
attorney who told him to stop the search and get a warrant. When he came back, the wife withdrew
consent. The issue was whether one occupant may give law enforcement effective consent to search
shared premises, as against a co-tenant who is present and refusal to permit the search. A
warrantless search of a shared dwelling for evidence over the express refusal 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.
The only thing that prevents authority to search is express refusal (not implicit refusal).
If he was not physically present at the door, it would not apply.
Applies only to the home
Only physically present (not on the phone or something)
If he was on the phone and said—no search it wouldn‘t prevent police from
Only applies to the objecting party:
If wife later objects because the police end up finding evidence against her, she
cannot object. The search is only unreasonable as to him. If the evidence is used
against mom, son and husband, only husband wins, because he is the only one who
objected at the door.
The decisions says, ―unless the people living together in a hierarchy‖— so by
implication, if there is such a hierarchy, the dad can let in anyone over dauther‘s
It also implies that an 8 year old can let people in common areas (if no one is in the
house to object).
THE “PLAIN VIEW” DOCTRINE
The “Plain View” Doctrine
Even though plain view is an exception—it‟s not completely—still need lawful access to
If police look through a window and see drugs—they can‘t go in without a warrant. If that
were the case, it would mean probable cause is an exception to the warrant rule. You have to
have lawful access to the item to seize it.
Coolidge: plurality test (not applied in Horton):
Officer must have prior justification for being in the area where the evidence is in plain view
(hot pursuit, valid warrant, not a search at all).
Must be ―inadvertent‖
The incriminating nature must be ―immediately apparent‖ - code for probable cause without
invading privacy further. Don‘t actually mean ―immediately apparent‖
Horton v. California: Officer had PC to search the home of the D. Officer applied for a warrant to
search for rings and weapons. The warrant authorized him to search only for the rings. Although he
didn‘t find the rings, the officer did find weapons in plain view. He admitted that he was interested in
finding things other than the rings, so his finding the weapon was not ―inadvertent.‖ Even though
inadvertence is a characteristic of most “plain view” seizures, it is not a necessary condition.
Stewart‘s reasoning in having ―inadvertence‖ as a requirement is flawed:
Should have objective standards, not subjective.
The protection against generalized searches is already provided by the requirement
that searches specify the thing searched for and places where it can be searched.
(1) Lawful view and access
(2) Immediately apparent (probable cause)
(3) Discovered inadvertently - now you don‟t need this anymore
Arizona v. Hicks: While police searched an apartment for evidence not related to stereo theft, one
officer noticed expensive stereo equipment and moved turntables to view and record the serial
numbers. Although viewing the serial numbers was not a seizure, because it did not deprive the D of
any property interest, it was a search because the officer took action, unrelated to the objectives of the
authorized intrusion, which exposed to view concealed portions of the apartment or its contents, and it
produced a new invasion of respondent‘s privacy unjustified by the exigent circumstances that
validated the entry. PC is required to ―search‖ an item in plain view - here—it wasn’t upheld
because the officer acted only with a “reasonable suspicion” and he was limited by the scope of the
Incidental searches are allowed—for example if you look for something that can fit under a
computer, you can look at the bottom of the computer too because it is exposed.
The Balancing Approach to 4th Amendment Reasonableness
These cases involve situations where the probable cause and warrant norms are not
appropriate measures of the reasonableness of the government conduct.
The government argues that the balance justifies a diminution of the normal standards of
Stops, Frisks and the Right to be Secure in One‟s Persons and Effects:
THE TERRY STOP
The Constitutional Doctrine and its Theoretical Underpinnings:
Terry v. Ohio: Officer suspected D was casing a store to rob it. He approached him for questioning
and patted the D down, finding weapons on him.
Where a police officer
Observes unusual conduct
which leads him reasonably conclude that criminal activity may be afoot
the person with whom he is dealing may be armed and presently dangerous,
where in the course of investigating this behavior he identifies himself as a policeman
and makes reasonable inquiries and where nothing in the initial stages of the encounter
serves to dispel his reasonable fear for his own or others‟ safety,
he is entitled for the protection of himself and others in the area to conduct a carefully
limited search of the outer clothing of such persons in an attempt to discover weapons.
Standard for the police officer:
The standard here is: whether the facts available to the officer at the moment of
the seizure or search = a reasonable man that the action taken was appropriate.
This search is not justified by a need to prevent destruction of evidence.
Sibron v. New York: Police watched D associate with narcotic addicts for hours, and later reached
into D‘s pocket and pulled out drugs. The Court held this was NOT constitutional because mere
association with narcotics addicts is not enough to create a reasonable fear of life and limb, it
was not enough grounds to stop D, and even if there was—they exceeded the scope by searching
for things other than weapons.
Dunaway v. New York: In a burglary investigation, police learned of a suspect from an informant
but did not have probable cause to arrest him. Police brought him in anyway, did not arrest him, but
would have detained him if he tried to leave. He incriminated himself. The police violated the D‟s
4th and 14th Amendment rights when, without probable cause to arrest, they seized petitioner
and transported him to the police station for interrogation.
o Terry applies only where:
D is questioned briefly where he was NOT taken to the station.
For the purpose of a pat-down for weapons.
o Here—a single familiar standard and not a balancing test as in Terry is necessary.
Florida v. Royer: a plurality concluded that officers need probable cause to justify detaining a
suspect and moving him from an airport concourse to a police room a short distance away. This
established the balancing approach under Terry is not the general rule, but an exception.
“Seizures of Persons”
“Seizures” of Persons:
United States v. Mendenhall (PLURALITY): Police observed a woman who appeared that she
might be carrying drugs. They returned her airline tickets and asked her to accompany them to the
airport DEA office for further questions. She did. The agent asked if she would allow a search of her
person and bag and was informed of her right to decline, but she gave permission. They found drugs.
The initial encounter with D was not violative of her 4th Amendment rights because a person is
“seized” within the meaning of the 4th Amendment only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was not free to leave.
It isn’t a seizure every time police question someone. Respondent‟s consent to accompany the
agent for the later encounter was given voluntarily. There was no objective reason for D to
believe that she was not free to refuse the request to accompany the officers to the DEA office.
Her consent to the search was not invalid either.
o Here—the circumstances show a reasonable person would believe he/she was free to leave:
Took her to a place in the public concourse
Didn‘t summon her to their presence
Requested, but didn‘t demand ID.
Florida v. Royer: plurality of the Court found no seizure when police approached D in an airport
concourse and asked for his ticket and license. He was seized however, when the officers told him
they were narcotics agents and he was suspected and asked him to accompany them to the police
room, while retaining his ticket and license and not indicating he could go.
Michigan v. Chesternut: the mere following of the suspect in a marked police car did not amount to
a seizure. It was important the police did not use sirens or flashers or display weapons. The case
involved a suspect who turned and ran after seeing police.
United States v. Bostick: The issue is whether a police encounter on a bus necessarily constitutes a
―seizure‖ under the 4th Amendment. The Court said no—confinement comes from the nature of a
bus, not coercion. Two important facts here:
o Police told Bostick he had the right to refuse consent
At no time did they brandish a gun.
A clear plastic pouch was the same as a holster to the judges in this case.
United States v. Drayton: where Ds allowed police to search their persons on a bus, they were not
seized and their consent to the searches was voluntary. For the most part, per se rules are
inappropriate in the 4th Amendment context.
California v. Hodari: D was with others gathered around a car. D and others ran when they saw the
police. One officer chased D and D threw a rock of cocaine. Then, the officer caught up with him and
tackled him. Show of authority, absent physical force, when the subject does not yield is not a
TEST for whether there is seizure of persons (there are two ways it can occur):
(1) Any physical touching (however slight but has to be for that purpose)
(2) Show of authority (Mendenhall/Bostick standard) + submission/yielding (this is
conjunctive—either one could be missing and it isn‘t a seizure)
**The Mendenhall is a necessary but not sufficient element to a seizure.
Brower v. County of Inyo: The majority observed that a Fourth Amendment seizure occurs ―only
when there is a governmental termination of freedom of movement through means intentionally
The Showing Needed to “Stop” and “Frisk”:
Reasonable Suspicion (as compared with probable cause)
o Less probability (lower quality of information)
o Less information (less quantity of information)
Illinois v. Wardlow: Officer observed D with an opaque bag. D ran when he saw the cops. Cops
cornered him and frisked him. The police found a weapon in a bag. An officer‟s decision to
investigate with a Terry Stop on an individual in a high crime area who runs when he sees the
police is supported by reasonable suspicion and not violative of the 4th Amendment.
Wardlow Test: Reasonable suspicion of criminal activity:
(1) High crime area+
(2) Unprovoked Flight
Need more than a hunch to make a Terry Stop—need reasonable suspicion.
The Court says flight alone is never enough—but is flight plus one factor enough? It‘s
Alabama v. White: An anonymous tip led police to do a Terry Stop of D. A tipster said she would
be leaving in a certain kind of car at a certain time to a specific location. Some but not all of her
future behavior was confirmed by police. The factors corroborated (left apartment building, got into a
station wagon, broken taillight, drove most direct toward a certain motel) were not indicative of
criminal activity at all. But the information increases the reliability of the tip. Makes the quality of
the information better. A Terry Stop based on an anonymous tip which is sufficiently
corroborated to furnish reasonable suspicion that respondent was engaged in criminal activity
is NOT violative of the 4th Amendment.
The situation is to be assessed by the totality of the circumstances
Reasonable suspicion requires less quality/quantity of info than probable cause.
In this case it was enough for the anonymous tip because:
o Police corroborated some of the info from the tip
o Doesn‘t matter that not every tip was verified because it was significantly
o Here there was a range of detail of facts that are not easily obtainable
o Predicted future behavior
Florida v. JL: An anonymous tipster said that there was a black man at a bus stop with a plaid shirt
who had a gun. Police saw a black man with a plaid shirt at the stop and stopped and frisked him and
found a gun. Here—the search happened when police stopped the D. Whether you can stop him
depends on whether there is reasonable suspicion of illegal activity. An anonymous tip lacking
indicia of reliability of the kind contemplated in Adams and White does not justify a stop and
frisk whenever and however it alleges the illegal possession of a firearm. There was not the
sufficient level: “moderate” reasonable suspicion.
Facts that might have influenced the outcome:
o If the tipster had said ―I saw the gun…‖ would have changed it completely. It would
give a basis of knowledge.
o If facts said it was a high crime neighborhood or D was a known criminal—that
might push it over the edge (but it probably would not).
o If there was an anonymous tip that he was outside a large stadium with a bomb, they
might lower the standards OR for a gun in school, or airport, because the government
interest shifts and there is an immediate need and in the airport, the reasonable
expectation of privacy diminishes.
Reid v. Georgia: officers could not have reasonably suspected an individual of criminal
activity on the basis of the facts that he arrived on a flight from Fort Lauderdale (a drug
place), he arrived early when few officers were around, his companion appeared to be
concealing something, they had no luggage, because all but one of these factors describe
countless innocent travelers. Court does not allow the profile.
Florida v. Royer: a Terry seizure was justified when officers observed a young, casually
dressed suspect who was pale and nervous, looking around at others, paid cash, had a one-
way ticket and had checked his suitcases by placing tags bearing false names. Profiling was
United States v. Sokolow: There was enough for reasonable suspicion where agents stopped
the suspect after becoming aware that he paid a lot for two round trip tickets from a roll of
20s. He was traveling under a name that did not match the name the number was listed, his
original destination was Miami (a drug place), he stayed there only 48 hours with a 20 hour
flight, he appeared nervous, didn‘t check luggage. This was enough even though not one
factor described ongoing criminal activity. Court affirms profiles.
United States v. Arvizu: when evaluating reasonable suspicion, facts that are innocent when
viewed in isolation may be suspicious when viewed together and observed the officers. BUT
judges shouldn‘t just rely on police‘s claim that a suspect matched a drug profile, but evaluate
the cases each on their own. But on the other hand, the factors of the profiles do not detract as
seen by a trained action. They are telling the judges to take into account police experience—
but don‘t defer.
United States v. Hensley: a Terry Stop is okay if police suspect the crime has already
occurred if the crime was a felony. Reserves the question as to whether such detentions are
okay for non-felonies.
The Permissible Scope of “Stops,” “Frisks” and “Sweeps”:
Scope of Terry Stop/Detention:
o Movement (Hayes)
Not into police station (but maybe you can under judicial supervision?)
o Time (Sharpe)
As long as reasonably necessary for a diligent person
o Separate detentions of belongings (Hiibel)
Cannot hold luggage longer than police could hold the individual
o Removal from vehicles (Long)
Passenger compartment if there is danger and the suspect might gain
immediate control of a weapon.
Scope of a Frisk:
o Person→ pat-down (Terry)
o Car→ passenger compartment if there is danger and the suspect may gain immediate
control of a weapon (Long)
Hayes v. Florida: Police found fingerprints in the home of a rape victim and shoe prints. They
questioned a D along with 30 or so others. They suspected D but did not have probable cause. They
went to his home and asked him to come to the station. He didn‘t want to go. Police said they would
arrest him if not—so he went. Police cannot take someone to the police station with only
reasonable suspicion (even briefly). It is an arrest—not a Terry stop.
*If they consented—this wouldn‘t be an issue.
According to Dicta: You can briefly detain the person in the street—even for prints—
(although some argue against it). And a person may under some circumstance be detained
with less than probable cause by judicial authority.
United States v. Sharpe: Officer noticed a truck and a car with a camper traveling down the road.
The officer noticed that the camper was heavily packed. The windows were blocked from the inside.
Police called for backup and each officer pulled one vehicle over. The officer called for the other
(DEA) where the camper was pulled over and detained D while they waited for the DEA to arrive—it
took about 15 minutes. Than the DEA searched D‘s camper and found drugs. Under the
circumstances of this case, the officers acted with due diligence and the duration of time did not
violate the D‟s 4th Amendment rights.
TEST: In assessing whether a detention is too long to be justified as an investigative stop the
Court determines whether the police diligently pursued a means of investigation that was
likely to confirm or dispel their suspicions quickly. The Court looks to:
(1) Whether there was an alternative available
(2) Whether the police acted unreasonably in failing to recognize or pursue that
United States v. Montoya de Hernandez: 16 hour detention was justified because:
4th Amendment protection is lower at international borders
Alimentary canal smuggling cannot be detected as quickly as other crimes.
Only other option (since D wouldn‘t submit to X-ray) was to let people go when there was
reasonable suspicion they were trafficking drugs.
D‘s own ―heroic‖ efforts not to have a bowel movement made the detention so long.
There are conflicting ideas as to whether the police must use ―least intrusive means during a Terry
Florida v. Royer: the plurality suggested least restrictive means are necessary and Brennan
agreed in his concurrence.
United States v. Sokolow: said that the ―reasonableness of an officer‘s decision to stop a
suspect does not turn on the availability of less intrusive investigatory techniques.‖
Hiibel v. 6th Judicial District Ct. of Nevada: a statute can require a suspect to identify himself.
Reasonableness of a seizure is determined by balancing the state‘s and individual‘s interests.
United States v. Place: Police suspected D in Miami airport was trafficking drugs. They called ahead
to LaGuardia. Police there asked to search D and held D‘s luggage for 90 minutes to wait for drug
sniffing dogs. The dogs responded to one bag. The police took the bag to get a warrant. Since it was
late Friday—they held it until Monday, got a warrant and found drugs. Although the sniffing of the
luggage was not a “search,” the 90 minutes was unreasonable with only reasonable suspicion.
Rule: You cannot hold luggage longer than you can hold the individual with only
The 90 minute delay precludes the conclusion that the search was reasonable without
They exceeded the scope—full seizure of the luggage.
This deals with narcotics→ so a minimally intrusive seizure is okay unlike in Hicks, because
police need the seizure to detect and stop the flow of narcotics.
Michigan v. Long: D swerved off the road and two police saw him do it. They asked for vehicle
registration and license. At first the D didn‘t respond, but after he was asked again gave his license.
When asked for his registration again, he didn‘t respond. Officer saw a hunting knife in the car. He
flashed a light into the car to search for other weapons. He saw a pouch of marijuana. They arrested
D for possession. They opened his unlocked trunk and found 75 lbs. of it. The search of the
passenger compartment of an automobile, limited to the areas in which a weapon may be placed
or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and
articulable facts which, taken together with the rational inferences from those facts, reasonably
may gain immediate control of weapons.”
The degree of suspicion is the same as in Terry.
Would a reasonably prudent man in the circumstances be warranted in the belief that
his safety or that of others was in danger?
While an officer is searching for weapons, he doesn‘t have to ignore other evidence
of a crime.
The S. Ct. stated: ―Although Terry involved the stop and subsequent patdown search for
weapons of a person suspected of criminal activity, it did not restrict the preventive search to
the person of the detained suspect. Protection of police and others can justify protective
searches when police have a reasonable belief that the suspect poses a danger. Roadside
encounters between police and suspects are especially hazardous, and danger may arise from
the possible presence of weapons in the area surrounding a suspect. Thus, the (1) search of
the passenger compartment of an automobile, (2) limited to those areas in which a
weapon may be placed or hidden, is (3) permissible if the police officer possesses a
reasonable belief based on specific and articulable facts which, taken together with the
rational inferences from those facts, (4) reasonably warrant the officer to believe that the
suspect is dangerous and the suspect may gain immediate control of weapons.”
Pennsylvania v. Mimms: The Court found that police can routinely require a driver to get out of a
vehicle during a lawful stop for traffic infraction, after balancing their interests of each. It‘s more
than offset by the officer‘s safety.
Maryland v. Wilson: extended Mimms to passengers. The dissent said that a passenger must be
ordered out of a lawfully stopped vehicle only if a police officer conducting the stop has an
articulable suspicion of possible danger.
Minnesota v. Dickerson: D saw and evaded police. He had just walked out of an apartment building
known for cocaine traffic. Based on that, police stopped him, frisked him and found cocaine on his
person. Here, D didn‘t challenge the frisk. Officers may seize non-threatening contraband
detected during a protective patdown search of the sort permitted by Terry, so long as the
officer‟s search stays within the bounds marked by Terry (so long as the incriminating nature is
immediately apparent). The officer can still remove contraband—but has to be within the
Terry search requirements when he determines there is probable cause that the suspect has
All officer would have to say is that he recognized immediately that the item was contraband.
Maryland v. Buie: Police had a warrant to arrest D. Police went to D‘s home to execute the warrant.
In conducting a ―sweep,‖ one officer went to the basement where he found the D. Another officer
joined him and found the running suit described in the burglary D was arrested for AFTER D was
arrested. As an incident to the arrest, the officers could without probable cause or reasonable
suspicion, look in closets and other spaces immediately adjoining the place of arrest from which
an attack could be immediately launched—beyond that however, there must be articulable facts
which, taken together with the rational inferences from those facts, would warrant a reasonably
prudent officer in believing that the area to be swept harbors an individual posing a danger to
those at the arrest scene.
TEST: It‘s potentially okay to go back to the basement for the running suit→
o need reasonable suspicion that there‘s an individual who poses a danger there
o must have articulable facts.
Scope: can only look in places you believe there is a person. Therefore its not a full fledged
You can‟t look in coat pockets of a coat in a closet. Cursory search only.
Special Balancing Contexts:
Michigan Department of State Police v. Sitz: Michigan set up a sobriety check point system with
police guidelines. 1.5% of those stopped were arrested for drunk driving. The average hold up for cars
was about 25 seconds. The D was one of the people arrested. A State‟s use of highway sobriety
checkpoints does not violate the 4th and 14th Amendments of the United States Constitution.
The intrusion is minimal (less than a Terry intrusion) and the government‘s interest is
o Objectively minimal: minimal time (25 seconds) and minimal intensity (just look at
the people to determine if there were signs of drunk driving).
o Subjectively minimal: Little fear and anxiety caused by the checkpoint (cars ahead
are stopping and officers are wearing uniforms—show of authority).
Government‘s Interest: The NATURE of the interest is that advances highway safety X
effectiveness = the weight of the government interest (although effectiveness is hard to
measure—0% effectiveness might show a very effective deterrent).
Looks only to the initial stop→ but hopefully there is reasonable suspicion to do a further
search after initial stop.
Here—there is no requirement of individual suspicion. That makes this different from
anything we‘ve talked about.
City of Indianapolis v. Edmond: Police set up drug checkpoints. Motorists were stopped for 2-3
minutes. P sued on behalf of themselves and other motorists who had been stopped. The Purpose
here is to get drugs off the street. Checkpoint programs whose primary purpose was to detect
evidence of ordinary criminal wrongdoing, such as transporting drugs, does not create an
exception from the need of individual suspicion.
Checkpoints are NOT justified for general crime concerns. The Court wants suspicionless
stops to be the exception, not the norm.
In Sitz, there is an obvious connection between the highway safety and law enforcement. The
gravity of the problem and magnitude of state‘s interest justify it. Drugs aren‟t an
immediate threat whereas drunk driving does pose the immediate threat.
Illinois v. Lindster: D was caught for drunk driving after being stopped at a checkpoint to get
information on a hit-and-run. This stop is allowed because the stop‟s purpose is not to detect the
drivers in any sort of crime—but just to get information→ there is no suspicion.
Higher than Usual Standards of Reasonableness:
Tenessee v. Garner: Police were dispatched to answer a ―prowler inside call.‖ Police found the
suspect running from the house. Police commanded suspect to stop—but suspect kept climbing a
fence. Officer shot and killed suspect. A statute authorized deadly force to stop a suspect who flees
the police. The statute is unconstitutional insofar as it authorizes a police officer to seize an
unarmed, non-dangerous suspect by shooting him dead, but, where the officer has PC to believe
that the suspect poses a threat of serious physical harm, either to the officer or to others, it is
not constitutionally unreasonable to prevent escape by using deadly force.
An officer can shoot:
o Where the officer has probable cause to believe the person possesses a threat to
the officer or others, to prevent escape/the harm. Short of that, you may not use
o Can also use deadly force if there is probable cause to believe that he has committed
a crime involving the infliction or threatened infliction of serious physical harm.
o If it‘s reasonable to believe that you could prevent the harm without deadly force—
then you can‘t.
Schmerber v. California: D was nailed for a DUI. He was brought to the hospital where police had
the staff draw blood for a blood/alcohol test for evidence. The 4th and 5th Amendments do not
forbid the States‟ minor intrusions into an individual‟s body under stringently limited
conditions in no way indicates that it permits more substantial intrusions, or intrusions under
o Probable Cause is necessary—just like with other searches.
o A warrant is necessary—just as in other cases.
BUT here—because the officer could reasonably have believed there was an emergency, and
therefore no time for a warrant. Exigent Circumstances.
o Also the test was reasonable—commonplace and minimally intrusive
o The way it was performed was reasonable—safe and not that intrusive.
Winston v. Lee: Police want D to undergo surgery to remove the bullet to see if it was shot from
victim‘s gun. At first, it is thought that the operation will pose minimal risk. Later—they find there
is a risk of tissue damage since the bullet is deeper than thought. General anesthetics are required.
Where the Court has found a lesser expectation of privacy, or the search involves a minimal
intrusion on privacy interests, the Court has held that the 4th Amendment‟s protections are
correspondingly less stringent. When the State seeks to intrude upon an area in which society
recognizes significantly heightened privacy interest, a more substantial justification is required
to make the search reasonable. The proposed search in this case would be unreasonable under
the 4th Amendment.
Factors to consider:
o Extent of intrusion on dignity
o Threat of safety to the individual
o Society‘s interest in accurately determining guilt
o Need a compelling need for the evidence → that might be enough to outweigh the
Zucher v. Stanford Daily: A university newspaper challenged the search of its newsroom for
photographic materials that could have provided evidence of the identities of the perpetrators of
assault upon police officers because of peril to 1st amendment values engendered when law
enforcement officer search the newsroom and arguably more serious threats to privacy inherent in the
unannounced search of the premises of an innocent third party. Court didn‘t buy it—didn‘t require a
CONFESSIONS & DUE PROCESS
Brown v. Mississippi: overturned a conviction based on a confession after D had been
Due Process Clause of the 14th Amendment, privileges against self-incrimination of the
5th Amendment, and right to counsel under the 6th Amendment are all used as
justification for overturning convictions based on improper confessions.
The rule excluding evidence under the 14th Amendment is stricter than the rule excluding
14th Amendment violation:
o Prohibits use of coerced/involuntary confessions
o Some coercive action by state required
o Totality includes pressures/setting + characteristics of confessor
There doesn‘t have to be any awareness that the person is particularly
vulnerable—it is still taken into account.
There has to be at least some coercion.
Before the threshold, the court looks to the combination of the D‘s
characteristics and the amount of pressure. When you get to Ashcraft—the
Court doesn‘t care how strong-willed the person is—its coercion.
If you prove coerced confession 14th Amendment→ the D gets more and the government
loses more evidence than with the other violations of this kind.
Ashcraft v. Tennessee: Police questioned D and others. Had no evidence of the ID of the murderer,
they brought D in and questioned him for 36 hours and constantly questioned D with a relay of
investigators giving him only a five minute break. D claims they were accusatory. Cops said they
were not. D claims he never admitted knowledge of the crime. Cops say he did. Ware, the other D
was brought in and confessed. RULE: A confession extorted from 36 hours of relays of
interrogation is inherently coercive and is not constitutional under the 14th Amendment and
therefore a state may not convict on coerced confession.
The conviction is the point when his right is violated based on the coerced confession.
This case doesn‘t give a lot of direction. It depends on:
o 36 hours
o No sleep/rest/ no respite
o Experienced investigators/ highly trained lawyers
o No evidence that he was the murderer when they took him in
o Relays by different officers
o Denied till the end.
o State can still use the confession—even if police were excessive unless the
confession was in fact involuntary.
United States v. Alvarez-Sanches: federal statute governing the admissibility of statements given
when there is a delay between arrest and arraignment does not apply to statements made by a person
who is held solely on state charges. D‘s confession to U.S. Secret Service was admissible even though
D gave the confession after being arrested and held by local law enforcement for 3 days without
arraignment on either state or federal charges.
Jackson v. Denno: the NY procedure was in violation of due process. All states either follow the
orthodox or Massachusetts procedure:
Orthodox: voluntariness is for the judge only to decide. If the judge determines it was
voluntary, the jury hears it.
Massachusetts: voluntariness is determined by the judge preliminarily, but also by the jury
with a jury instruction only to consider the confession if it was voluntary.
Spano v. New York: D confessed to a friend who was also a police officer. The friend told his
superiors. D was brought in and refused to answer questions without his lawyer. His requests to see
his lawyer were denied. D‘s friend tried to get him to confess by lying and saying his job was on the
line. D eventually confessed without his lawyer. A confession where D was denied access to
attorney and persuaded by a childhood officer friend to confess after D was already indicted is
not voluntary, is not admissible. The Due Process Clause doesn‟t allow coerced confessions to
convict. Totality that bares on the issues of pressure and D‟s vulnerability is what is used to
Mincey v. Arizona: D was seriously wounded and in intensive care, isolated from family and
indicated that he did not want to answer questions but police persisted. This was an involuntary
Colorado v. Connelly: D approached officer on the street to confess to a crime. The next day, he
seemed disoriented and was found incompetent to assist in his own D. Later he was competent again.
At trial, an expert testified that he confessed due to his mental psychosis. D argued that the
confession was not voluntary. Coercive police activity is a necessary predicate to the finding that
a confession is not “voluntary” within the meaning of the Due Process Clause of the 14th
Amendment. Here, the taking of respondent‟s statement and their admission, is not a violation.
The Court never said that D spoke voluntarily BUT the involuntariness was a product of
his own psychosis—the confession came from the internal side—not police action.
In order to violate due process—the confession must have coercion from the state.
Vulnerability is still taken into account—it just can‘t be dispositive.
o Here, Police even asked him a question—―what‘s on your mind‖ and that wasn‘t
enough to cross the threshold. He is the most vulnerable person ever in the history of
Bram v. US: the Court states that in order to be admissible, a confession must NOT be obtained a
direct or implied promise, however slight.
Arizona v. Fulminante (a later case): the effect of the government promise must be weighed in
PRIVILEGE AGAINST SELF-INCRIMINATION/MIRANDA WARNINGS
The Constitutional Basis:
The language of the 5th Amendment: ―…Nor shall [any person] be compelled in any criminal
case to be a witness against himself.‖
The 5th Amendment requires more than the 14th Amendment. If not—two rights would do
the exact same thing.
Miranda v. Arizona: D was convicted of rape and murder. He confessed in a statement that said he
did so, ―with full knowledge of [his] legal rights….‖ but police never made him aware that he had the
right to an attorney. The issues are whether the privilege of the 5th Amendment is fully applicable
during a period of custodial interrogation and whether D can ―voluntarily‖ confess without prior
knowledge of his rights. The prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation (questioning initiated by law enforcement
after a person is deprived of freedom in a significant way) of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege against self-
There MUST BE CUSTODIAL INTERROGATION for this to apply:
FOR THE RIGHTS TO KICK IN YOU MUST HAVE :
(1) Custody AND
o If someone confesses before police ask him questions and before
they read his rights—Miranda doesn‘t apply.
o When these two factors are present—it is inherently compulsive.
Must be warned that he has the right to remain silent
Any statements he makes can/will be used against him in court
He has the right to the presence of an attorney
If he cannot afford an attorney, one will be provided
D may waive the rights if he does so:
Procedure after warning:
If D indicates a desire to remain silent, or talk to an attorney—the interrogation
Interrogation without an attorney presents a heavy burden on the government that D
knowingly waived the right
An express statement that D will make a statement without an attorney, and
then D makes a statement could constitute a waiver.
Silence after rights are read is NOT a waiver.
o Never said you can‘t infer it from behavior → that‘s addressed in a
Lengthy interview or incommunicado incarceration is strong evidence of
an INVALID waiver
Any evidence which shows D was tricked will go to show INVOLUNTARY
New York v. Quarles: D, who was known to have a gun, ran when he saw police and disappeared
from convenience store site for a short period. Police seized him and frisked him and found an empty
gun holster. The officer asked D where the gun was before reading him his rights. D answered and
was then read his rights. D waived his right to an attorney and told police about the gun. There is a
“public safety” exception to the requirement that Miranda warnings be given before a suspect‟s
answers may be admitted into evidence, and that the availability of that exception does not
depend upon the motivation of the individual officer involved.
Miranda does not establish a right to the warning itself. The warning is merely a way to
ensure the right.
D was not actually compelled by police when they asked the question—his will was not
This isn‘t just about refraining from asking questions to protect the public—it‘s about using
that information later at trial.
Presumed (not actual) Inherent Compulsion
No ―constitutional imperative‖ to exclude
statements/no constitutional right to
Dickerson v. United States: D was arrested for robbery and not read the Miranda warning before
interrogation. Congress responded legislatively to Miranda. The legislation was ignored for a long
time despite the fact that it directly responds Miranda. Miranda may not be overruled by an Act of
Congress and the Court declines to overrule, therefore Miranda is controlling.
Miranda is a constitutional decision.
Miranda warnings are NOT rights that are protected themselves.
Exclusion when you are not read your Miranda warning is not a right.
Chavez v. Martinez: Chavez interrogated Martinez while Martinez was in the hospital with great
pain and did not read him his rights. Martinez was never prosecuted. Martinez sued Chavez for
violation of his 5th Amendment rights, but the Court found no violation because the statements were
never introduced in Court. You cannot violate the 5th Amendment right outside of the
courtroom. The 14th Amendment claim was remanded to determine whether there was
―outrageous police conduct.‖
Requirements for Miranda Application:
Formal Arrest OR
Functional Equivalent of Formal Arrest
Berkemer v. McCarty: D was pulled over after his car was weaving and officer determined that he
would be taken in. Officer asked if he was under the influence. He said he had had alcohol and some
pot and stated that he was ―barely‖ under the influence. Intoxilyzer determined that he had no alcohol
in his blood. D wanted to have his statements suppressed because he was not read his rights.
A person subjected to custodial interrogation is entitled to the benefit of the procedural
safeguards enunciated in Miranda regardless of the nature or severity of the offense of which he
is suspected or for which he was arrested BUT respondent was not taken into custody for the
purpose of Miranda until Williams arrested him. The statements respondent made prior to the
arrest were admissible.
There are two mitigating factors:
o The stop is temporary and brief
o It is in atmosphere of less police domination (it is in public).
The standard: Would a reasonable person in D‟s position feel that they were restrained
to the degree of a formal arrest?
Subjective feelings of the officer or the D are irrelevant.
Officer‘s subjective thoughts of whether D will be arrested cannot be articulated to D-- it
goes to how the D would reasonably have felt.
o Custody can occur by the store with ―you are under arrest.‖ Custody does not have to
be in the police station.
o BUT just because he is at the police station, it does not mean that he is in custody. If
the D came in voluntarily- not custody.
Stansbury v. California: the S. Ct. overruled the lower court‘s decision that statements made by a
suspect before the police considered him a suspect were admissible because the officer‘s subjective
state-of-mind is irrelevant. The Court remanded.
Oregon v. Mathiason: when a suspect comes voluntarily to the police station, he is not necessarily in
custody. D was not in custody where he agreed to meet an officer at the police station and was told he
was not under arrest.
Requirements for Miranda Application:
Formal arrest OR
Functional equivalent of formal arrest
Express Question (probably doesn‟t mean any question) (Miranda)
Functional equivalent of an express question (anything reasonably likely
to elicit an incriminating response) (Innis)
Rhode Island v. Innis: Several officers, at several different times, read D his Miranda warning and
D requested to see an attorney. While D was in custody, being transported to the police station, one
officer commented to another what a shame it would be if a child found a weapon and killed herself.
D interrupted and offered to tell police where the gun was. He was again read his rights and decided
to show the place of the weapon anyway. RULE: “Interrogation” under Miranda refers not just
to “questioning,” but actions or words on the part of the police that elicit statements that they
should have known were reasonably likely to elicit an incriminating response. D was not
“interrogated” within the meaning of Miranda.
o Things unknown to the officer are irrelevant.
Illinois v. Perkins: Fellow inmate of D gave police information that D was involved in a specific
unsolved murder. Police put an informant and an agent in the cell block with D and collected
incriminating evidence used to charge D. An undercover law enforcement officer is NOT
required to give Miranda warnings to an incarcerated suspect before asking him questions that
may elicit an incriminating response.
Only government agents that are known to be government agents need to read Miranda,
because the fellow inmate doesn‟t put on more pressure—there is no compulsion to
speak by the state. There is no basis for feeling of pressure when they don‟t even know
the person works for the state.
California v. Prysock: variations from the precise warnings prescribed in Miranda are permissible
so long as they ―reasonably convey‖ the rights included in the original four warnings.
If you put Miranda warnings in different order—it‟s okay—so long as you reasonably
convey the rights that are in there (substance over form).
Duckworth v. Eagan: Miranda does not require that attorneys be producible on call, but only that the
suspect be informed, as here , that he has the right to an attorney before and during questioning—this
case came about when officer added, ―we have no way of giving a lawyer, but on will be
appointed…‖ BUT—the problem is a lot of people will not understand that they can avoid
questioning until they have a lawyer.
Arizona v. Fulminante: An informant for the FBI was asked to get information from a particularly
unpopular inmate for information. The informant offered the inmate protection from other prisoners if
he gave up the info. The Court found that the confession was coerced, and therefore its admission into
evidence violated due process. D‟s will was overborne because he faced a credible threat of
physical violence unless he confessed.
North Carolina v. Butler: D was convicted of kidnapping, robbery and assault. D refused to sign a
waiver, but spoke to police. He didn‘t request an attorney or ask to stop questioning. Statements
were not suppressed. According to Miranda, silence is not a waiver, but an express statement is
not indispensible to finding a waiver.
o The signed waiver is not necessary or sufficient→ silence coupled with an
understanding of the rights may support a waiver.
o Π has the burden but the waiver can still be inferred from D‘s actions. The burden is
preponderance (more likely than not).
Moran v. Burbine: D‘s sister had an attorney contact police and police agreed not to question D until
the next day when the attorney could be there. Police did not inform D of the attorney‘s telephone
call or say anything that would indicate an attorney wanted to speak with him. Court said there was a
waiver—police don‘t have to supply the suspect with a flow of information to help him calibrate his
self-interest. Otherwise—voluntary statements would be discouraged. That would be overkill.
Connecticut v. Barrett: D spoke to police but would not sign anything. D argues that shows D
didn‟t fully understand his right, but the court rejected that saying that Miranda gives the D a
right to choose between speech and silence and the D chose to speak.
Colorado v. Connelly: a waiver of Miranda was valid despite the fact that at the time of the waiver
the D was in a psychotic state that led him to believe that the voice of God ordered him to confess or
commit suicide. However, courts have found that mental illness is not a waiver of Miranda rights b/c
the mentally ill person‘s ―lack of understanding‖ element.
INVOCATION OF PROTECTIONS:
Michigan v. Mosley: Police brought D for a robbery. He was given his Miranda warning and
questioned, then refused to answer more questions, but never asked to speak with an attorney. He was
taken to a cell block and another officer started questioning him two hours later about an unrelated
crime. Mosley did sign a Miranda warnings printed-notification form and acknowledged he
understood his rights. Admission in evidence of Mosley‟s incriminating statement did not violate
the principles of Miranda. Must recognize the elements of: 1) suspect placed in different
location; 2) new questioning about different offense; 3) time that passes between the first and
second interrogation (in the case it was at least 2 hours); 4) another reading of Miranda rights
at before beginning of second interrogation session; and 5) given full and fair opportunity to
exercise such rights. TIME is the critical factor in this case!!
TEST: The admissibility of statements obtained after the person in custody has decided to
remain silent depends under Miranda on whether his right to cut off questioning was
―scrupulously honored‖ - THIS IS THE STANDARD.
Edwards v. Arizona: D was about to make a deal with the county attorney, but decided first he
wanted to talk to an attorney. Early the next morning officers came. He said he didn‘t want to talk to
them, but they said ―he had to.” They read him his rights. He agreed to talk. In questioning him, they
elicited incriminating statements. When accused has invoked his right to have counsel present
during custodial interrogation, a valid waiver of that right cannot be established by showing
only that he responded to further police-initiated custodial interrogation even if he has been
advised of his rights.
STANDARD: An accused, having expressed his desire to deal with the police only through
counsel, is NOT subject to further interrogation by the authorities until counsel has been
made available to him, UNLESS the accused himself initiates further communication,
exchanges, or conversations with the police.
Davis v. United States: During questioning, D said ―maybe‖ he should talk to a lawyer. The
Interrogator said he could have a lawyer if that is what he was asking for. D said he wasn‘t asking for
a lawyer. Later, D asked for a lawyer and questioning stopped.
RULE: After a knowing and voluntary waiver of Miranda rights, law enforcement
officers may continue questioning until and unless the suspect CLEARLY requests an
attorney. Be careful that police can prove waiver occurred.
Oregon v. Bradshaw: D told police he wanted to speak to an attorney, then D asked the officer
―what‘s going to happen to me.‖ The officer reminded him he requested an attorney and reminded
him that if he talks, anything he says will be used against him. General conversation followed and D
agreed to a lie detector test. The Rehnquist plurality concluded that after ―initiating‖ further
communication, D validly waived his right under Miranda.
STANDARD: for valid waiver there must be a ―willingness and desire for a generalized discussion
about the investigation.‖
o The issue is whether the D knowingly and intelligently waived his right to counsel
o The function of initiation is to “cancel” the message that the D doesn‟t feel fully
confident to handle interrogation without the lawyer.
Minnick v. Mississippi: D escaped prison and then shot some women in a trailer while looking for
weapons. D was interrogated. D testified jailors told him he had to talk. Then he was read his
Miranda warnings and interrogated. D said he wouldn‘t answer ―very many‖ questions. He hesitated
to answer questions about what happened in the trailer. He told the officers he would make a
statement Monday when he had his lawyer. He was able to consult with a lawyer two or three times.
Then he was interrogated again without his attorney present. When counsel is requested,
interrogation must cease, and officials may not reinitiate interrogation without counsel present,
whether or not the accused has consulted with his attorney. There is a right to have counsel
present during the interrogation.
The person isn‘t going to be made stronger by a visit. They are still vulnerable on their own.
Confessions and the Right to Assistance of Counsel
Massiah v. United States: the D‘s 6th Amendment Right to Counsel barred the admission into
evidence of the statements made by the D to the government agent.
Spano v. New York: admission of a confession obtained after the policed failed to comply with
the indicted D‟s request to consult with counsel violated the D‟s 6th Amendment Right to
Gideon v. Wainwright: the 6th Amendment Right to Counsel is “fundamental and essential to a
fair trial” and therefore applicable to the states through the Due Process Clause of the 14th
Protection afforded by Massiah is different from, and in some respects stronger than, the protection
afforded by Miranda. Thus, a D who may be unable to attack his confessions on violation
Miranda grounds, might nevertheless by able to establish that it is inadmissible as a result of his
6th Amendment Right to Counsel.
The line is drawn for 6th Amendment protection at formal charges:
o Look at the language of the 6th Amendment: ―In all criminal prosecutions the
accused shall enjoy…the right to the assistance of counsel for his Defense.‖
o The Court is rigid about this formality (unlike in Miranda where the court chooses
substance over form).
TEST: D is denied 6th Amendment rights when:
o Statements are used at trial
o The statements are his own incriminating words
o Federal agents deliberately elicited OR knowingly exploited an existing situation
And took action beyond merely listening (Kuhlman)
o D has already been indicted.
o Counsel is not present.
Massiah v. United States: Government agents deliberately elicited and listened to incriminating
statements made by D after D was indicted and out on bail, in the absence of counsel. Agents did so
through use of an informant who used a wire. The incriminating statements were used against him in
Court. D is denied the basic protections of that guarantee when used against him at trial
evidence of his own incriminating words, which federal agents had deliberately elicited from him
after he had been indicted and in the absence of counsel.
There is a need for an attorney at this stage for strategic legal decisions.
Massiah has two clear guarantees:
o Right to attorney at trial
o Right to attorney to be retained
Brewer v. Williams: D was being transferred from one location to another and did not initiate
discussion. An agent and D engaged in small talk regarding religion. Officer suggested D think about
showing them where the body was and appealed to his religious ―Christian burial‖ beliefs. D took
police to the places he left the blanket, shoes, and then lead them to the body. When police
interrogate a D (deliberately eliciting information) in the absence of counsel, after indictment
when police agreed not to question D, the D‟s 6th Amendment Rights are violated.
This is different from Massiah, in that D there was not necessarily ―interrogated.‖ Massiah
only talked about ―deliberate elicitation.‖
Although it sounds like this case says interrogation triggers the protection, the Court clarifies
later—interrogation will always meet the ―deliberately elicited‖ standard—but interrogation
is even more. The suggestion is ―deliberately elicited‖ is less than ―interrogation.‖ They
never really define deliberate elicitation either.
This guy did so much to show that he wanted a lawyer—said he wanted one so often and
strictly adhering to their advice—shows a needing for more to show voluntary
relinquishment. The Court is not saying you have to expressly relinquish the right. All that
happened before makes it a little harder to infer that he did relinquish the right.
Here the exclusionary rule would not serve the purpose of deterrence since police would
have inevitably discovered the evidence.
Michigan v. Jackson: the Court has held that the Edwards rule, which applies when a D who has
been given the Miranda warnings invokes his right to an attorney, also applies to D, charged with a
crime, requests counsel. So police can‘t approach you and ―initiate‖ a conversation and show a
Patterson v. Illinois: the Court by a 5-4 decision rejected the argument that ―waiver of an accused‘s
6th Amendment Right to Counsel should be ‗more difficult‘ to effectuate that waiver of a suspects 5th
Amendment rights.‖ This case came up when indicted D was indicted. Then, D gave information
about another crime for which he was not indicted and made incriminating statements for the crime
for which he was indicted.
An accused that is given Miranda warnings has been sufficiently appraised of the nature of
the 6th Amendment rights and of the consequences of abandoning those rights—so that his
waiver on the basis will be considered a knowing and intelligent one.
BUT in some situations—the standards for waiver of Miranda and 6th Amendment rights
would be different—for example, a police officer is not required to tell a suspect under
Miranda that an attorney is trying to contact him—but someone who is charged must be told
under the 6th Amendment to be a valid waiver.
There still may be an issue if D isn‘t told he was indicted.
Moran v. Burbine: no 6th Amendment right to counsel before judicial proceedings.
Texas v. Cobb: the issue was whether the right attaches for any offenses other than those with which
an accused has been formally charged. D had been indicted for one crime—and then interrogated
without a lawyer for another crime. The Court held that the 6th Amendment is “offense specific.”
Therefore his waiver was valid.
But authorities must still adhere to Miranda.
Police have to be able to talk to a witness and suspect even if they have been charged with
Blockburger v. United States: when all of the statutory elements of one offense are included within
the statutory elements of another—the 6th Amendment applies to the offense for which D was not
A crime is ―the same‖ when it does not require any element that the other does not contain. If
the elements to crime 1are A, B, & C and the elements for crime 2 are A & B, they are the
United States v. Henry: D was indicted for armed robbery. While witnesses identified the other
suspects involved—no one had an ID on D. He was put in a cell with a government informant who
was told not to question him, but to report information. The fellow prisoner gave the feds info on D
and testified in Court. By intentionally creating a situation likely to induce Henry to make
incriminating statements without the assistance of counsel, the Government violated Henry‟s
Sixth Amendment right to counsel.
Test: Did the government intentionally create a situation likely to induce statements?
o Important facts:
o The D was in custody→ Informant was under indictment.
o The informant was paid→ and was only paid when he gave good information.
o Government instructed the informant
o D was under indictment (fellow inmate)
The Government (big “G” government) has to be found responsible for what the
informant/agent (little “g” government) does. It gives the government an out—a way to
avoid 6th Amendment claims.
Maine v. Moulton: D and co-D were released. D told the other guy about a plan to kill one of the π‘s
witnesses. The friend went to the police and wore a wire. The state argued that this was different from
Messiah because the D initiated the meeting with the co-D and the government had a legitimate
reason to listen. But the Court responded that initiation isn‘t a decisive event or even important and
the legitimate reason doesn‘t distinguish this case from Massiah. In Massiah, the Court held that the
state was justified in continuing the investigation of the crime ring.
TEST: Did the government intentionally create or knowingly exploit a situation likely to
The government MUST HAVE KNOWN they would be getting incriminating statements.
o Co-D was getting a deal for producing the information.
o Instructions were weak
o Co-D actively elicits.
o They were likely to talk about the trial since the whole point of the meeting is to talk
about bumping off witnesses.
United States v. Kuhlman: D eluded police for days and then turned himself in denying involvement
in a crime. He was placed in a cell with an informant and made incriminating statements. Informant
was not to ask questions, just get the names of the other guys who were involved in the crime. D
made incriminating statements but never gave the other guys‘ names. Information collected by the
informant in this case was admissible.
STANDARD: the D must demonstrate that the police and their informant took some
action, beyond merely listening, that was DELIBERATELY DESINGED TO ILLICIT
Conversation is deliberate elicitation. Listening is not deliberate elicitation.
Fellers v. United States: Clarifies the test for 6th Amendment violation→ ―deliberately elicit‖ not
Identification and the Right to Assistance of Counsel
6th Amendment Right to Counsel and Identifications
o Uncounseled ID→ exclusion
o Subsequent in court→ Inadmissible unless government provides CLEAR AND
CONVINCING evidence from independent source/origin.
United States v. Wade: the employees of a robbed bank identified respondent in a lineup that had
been conducted without counsel present. At trial, the employees pointed to respondent when asked to
identify the robber. The Court vacated respondent‘s conviction, until a new hearing could determine
whether the in-court identifications had independent origins. The post-indictment lineup was a
critical stage of the proceedings, so respondent was entitled to have his attorney present. Based
on the record, the Court could not determine whether the courtroom identifications should be
excluded. Evidence had to be presented as to whether the in-court identifications were based on
observations or the lineup. This implicated D‘s 6th Amendment right to counsel.
There are risks that the police could influence a witness and make it more likely they will
4 important factors:
o W identifications are untrustworthy
o There are opportunities to suggest the witness
o Once the witness picks, they are unlikely to sway.
o You can‘t reconstruct it in a way that will show what is flawed—you can‘t
This does not apply to physical evidence like blood testing—the 4 important factors don‘t
apply. There is very little risk if counsel isn‘t present that counsel can‘t effectively protect
D‘s interests at trial. That is why eye-witness IDs are different.
Kirby v. Illinois: D had been arrested in connection with an unrelated criminal offense and was taken
to the police station. The victim of a robbery was at the police station and ID the D as the robber. At
the time of the ID, no lawyer was present. D had not asked for legal assistance, and D had not been
advised of any right to the presence of counsel. After the identification, D was indicted for the
robbery and arrested. At trial, the victim testified as to the police station ID and also made an in-court
ID of the D. D was convicted of robbery. Although the 6th Amendment right to counsel exists at
a post-indictment lineup, the Court refused to extend the right to an ID that took place before
the commencement of any prosecution whatever. Because D was ID before he was arrested on the
robbery charge, the pre-indictment ID was admissible, even though counsel was not present.
There is no compulsion of the accused to give evidence having testimonial significance.
Compulsion to exhibit physical characteristics—not to disclose any knowledge he might
The 6th and 14th Amendment rights only come into effect after the adversary judicial
proceedings have begun.
o You are entitled to counsel at the line-up
o BUT THERE MUST BE FORMAL CHARGES—NOT just an arrest. You have
to be formally charged.
So the strategy is to do the line-up before indictment.
US v. Ash: Prior to trial of respondent accused, petitioner government used a photographic display to
determine whether W would be able to make an in-court ID of respondent. Some witnesses selected
his pictures, but one was unable to make any selection. At trial, some witnesses ID respondent.
Respondent was convicted. Even if the Court was willing to view the protection of the adversary
process, it would be unwilling to go so far as to extend the right to a portion of petitioner‟s trial-
preparation interviews with witnesses. The Court held that 6th Amend did not grant the Right-
to-Counsel at a photographic display conducted by respondent for the purpose of allowing
witness to attempt ID of the offender.
The purpose of the 6th Amendment is to assure “assistance” of counsel.
o This purpose isn‘t served if counsel is there for this.
The reason pictures are different is that it is not trial-like. The D isn‘t actually present.
Therefore—a movie of the lineup would not give the right to counsel.
o This isn‘t actually consistent with Wade—Wade says the reason you have a lawyer is
to cope with legal advice. The reasons actually used in Wade, is to prevent the
police/prosecutor from suggesting.
SO→You look at Wade as a preliminary question—is it a situation where
the important factors are at risk? If so, is the D present?
The Due Process Clause and Identifications
Stovall v. Denno: Defendant filed a habeas corpus petition that challenged the constitutionality of the
victim's identification of defendant, which led to his conviction. The identification took place in the
victim's hospital room and before defendant had the opportunity to obtain counsel. The district court
and appellate court denied defendant's petition. The Court affirmed the judgment. The Court refused
to apply retroactively the rules that required the exclusion of identification evidence obtained by
exhibiting the accused to identifying witnesses in the absence of his counsel. Retroactive application
was inappropriate because law enforcement officials and courts relied upon the premise that the
presence of counsel was not constitutionally required for pretrial confrontations for identification.
Further, retroactive application would place a burden on the administration of justice. The
identification was not so unnecessarily suggestive and conducive to irreparable mistaken
identification that it violated defendant's due process rights because the record revealed that
the hospital identification was necessary.
Didn‘t violate due process because it was ―unnecessary‖ suggestion.
There are two elements:
o Must have suggestion
o And the suggestion must be “unnecessary” and “unreliable”
o Unnecessary suggestion→ ID → Inadmissible unless government shows it‟s
o Subsequent IDS from witnesses→ go to reliability
The risk wasn‘t an actual risk—―reliability‖ shows the W didn‘t pick because
of suggestion, but from memory.
Manson v. Brathwaite: Respondent, on a claim for habeas relief, proposed a per se rule of exclusion
that he claimed was dictated by the demands of the Fourteenth Amendment's guarantee of due
process. The Court adopted the totality of the circumstances test and concluded that the criteria
applicable in determining the admissibility of evidence offered by the prosecution concerning an
identification were satisfactorily met and complied with in respondent's case. The Court reasoned that
the factors that had to be considered included the opportunity of the witness to view respondent
at the time of the crime, the witness' degree of attention, the accuracy of his prior description of
the criminal, the level of certainty demonstrated at the confrontation, and the time between the
crime and the confrontation. Against these factors was weighed the corrupting effect of the
suggestive identification itself. The Court determined that it could not say that, under all the
circumstances of respondent's case, there was very substantial likelihood of irreparable
misidentification. IN OTHER WORDS, VERY LIKELY TO PRODUCE MISID.
The Exclusionary Rules
Weeks v. United States (1914): D was arrested by police without a warrant. Police went to his
house without a warrant and were let in by a boarder. They took papers and effects of the D. Π
sought to use them against D in court. D petitioned to have them back. The letters in question were
taken by an official of the U.S., acting under office in violation of the D‟s constitutional rights,
and the D having made a timely petition for their return—was wrongfully denied their return.
The search violated the 4th amendment.
o Deterrence—future violations prevented
o Judicial integrity
o Part of the right to privacy (the right not to have evidence obtained illegally + used
against you for convictio= contained in the right to privacy).
o If no value, then there is no reason not to violate.
Later the Court changed their mind—judicially created remedy created ONLY for the
deterrent effect. The Court later takes away the ―constitutionally required‖ language (can‘t
impose it on the states unless it‘s constitutionally required). NOW the Court says there is no
right to keep out evidence along with the right to privacy.
THEREFORE—the Court might find that the exclusionary rule can be abolished through
Mapp v. Ohio: Police knocked on D‘s door and asked to enter. D refused without a warrant. They
came back hours later with a paper they claimed was a warrant and searched the house extensively.
No warrant or explanation for its absence was made at trial. All evidence obtained by searches and
seizures in violation of the Constitution, is inadmissible in a state court.
Weeks is regarding the 4th Amendment and applies to federal courts.
Mapp extends Weeks to the State Courts through the 14th Amendment.
Linkletter v. Walker: the purpose of the exclusionary rule based on privacy of a victim‘s home, is to
deter future unlawful conduct and thereby effectuate the guarantee of the 4th Amendment against
unreasonable searches and seizures. This rule is calculated to prevent, not repair.
Michigan v. Tucker: sought to suppress testimony of a witness who was discovered as a result of
statements the D made in response to a custodial interrogation without full Miranda warnings. The
Supreme Court concluded that the D‘s statements had to be excluded under Miranda. The testimony
of the witness, however, was deemed admissible even though it had been derived from the
Miranda requirements are only safeguards.
The Miranda concerns (deterring misconduct, preventing reliance on untrustworthy info,
preserving the principle that requires the government shoulder the burden of conviction)
NO right to exclude evidence obtained through violation of D‟s 5th Amend rights.
The sole purpose of the exclusionary rule is deterrence of Miranda violations.
If someone else is wrongfully searched and reveals evidence incriminating against you, you
cannot get it exclude.
Exclusionary Rule can only be invoked to exclude evidence obtained in violation of YOUR
4th Amendment right. Knowledge that they won‘t be able to prosecute the person you
actually search will outweigh any danger.
The Scope of and Exceptions to the Exclusionary Rules
A constitutional violation does not inevitably lead to the permanent suppression of all evidence
Limitations on Exclusionary Rule:
STANDING: (hinges on not having a right violated) vs. search- Need a legitimate expectation of
People who have standing:
o Overnight guests
o Almost all social guests
o Must have a meaningful connection to the home or occupants
(have you been there before, what is relationship, etc.)
Confession Cases: only the person who makes the confession may have it barred by the
Search and Seizure Cases: D may bar evidence only if the search and seizure violates his
own ―legitimate expectation of privacy‖ (Rakas)
o A possessory interest in a seized item alone is not enough to allow D to challenge the
constitutionality of the seizure. (Rawlings)
o The fact that D is legitimately on the premises where the search has taken place does
not mean that D can exclude the fruits of the search. (Rakas)
o Where one member of a conspiracy is stopped or searched, the other members do not
automatically get standing to object to the stop or search merely by virtue of
EXCEPTIONS: (assumes a violation occurred, but there were other reasons the evidence might still
be admissible against you)
Independent Source Exception:
o If you legally discover the same facts you find illegally, it's okay
o The information has to be found independently of the illegal search (this isn't really an
exception of the exclusionary rule because it doesn't fall within the terms of the rule,
as it only deals with evidence found illegally)
o This is a true exception
o Even though there is a causal connection, the evidence can come in- the info would
have lawfully been discovered without the lead by a source or admission of defendant
o Provide by a preponderance (more likely than not) that they would have found the
body (Nix v. Williams), or whatever evidence they were seeking out
THE STANDING LIMITATION
The “Standing Limitation”:
Rakas v. Illinois: Cop got a call about a robbery. They spotted the getaway vehicle and pulled them
over and searched the vehicle. They found a box of rifle shells in passenger seat. Petitioners were
found guilty of armed robbery, but moved to suppress the evidence saying search violated 4th and
14th Amendments. The passengers did not own the car nor the rifle and shells. A passenger doesn't
have a privacy interest. Petitioners' rights were not violated where they had no legitimate
expectation of privacy in areas of a car in which they claimed no property or possessory
interest. 4th Amendment protects only those places in which petitioners themselves had a
reasonable expectation of privacy.
The appropriate measure of rights was no longer guided solely by whether petitioners were
legitimately on the premises that the police searched. Without holding that a property interest
was required, the Court decided that 4th Amend protected only those places in which
petitioners themselves had a reasonable expectation of privacy.
The issue of standing involves two inquiries:
(1) First, whether the proponent of a particular legal right has alleged injury in fact, and
(2) Second, whether the proponent is asserting his own legal rights and interests rather
than basing his claim for relief upon the rights of third parties.
o What would serve enough to show a possessory interest?
maybe if you had a suitcase in the car
maybe if you get a ride multiple times per week
length of time in the vehicle
joint control of the car
Minnesota v. Olson: the issue was whether a suspect‘s 4th Amend rights had been violated when the
police made a warrantless, nonconsensual entry into a house where he was an overnight guest and
arrested him. An overnight guest has a legitimate expectation of privacy in his host‟s home—
which entitles the guest to object to warrantless entry to arrest him.
Rawlings v. Kentucky: police discovered a considerable amount of illegal narcotics in a purse
belonging to the D‘s acquaintance. D could not challenge the legitimacy of the search of the purse
because he did not have a reasonable expectation of privacy. Not D‘s purse. When D relinquished the
drugs to a purse belonging to another, D no longer had privacy expectation as to drugs in purse.
Jones v. United States: the court had ruled that Ds who are legitimately on the premises when a
search occurs have standing to challenge the search, but this principle was discarded in Rakas.
United States v. Payner: Court held evidence inadmissible even though D did not have standing
to challenge the search because the IRS agents made the search knowing it was illegal and that
D did not have standing. The holding was based on the “knowing and purposeful bad faith
hostility” to constitutional rights.
Minnesota v. Carter: A police officer looked through a window blind in a lessee's apartment based
on an informant's tip. The officer observed respondents bagging cocaine in the apartment. Based on
that observation, a warrant was issued, and respondents were arrested and charged with conspiracy to
commit a controlled substance crime. Respondents made a motion to suppress the evidence,
contending that the officer's observation was an unreasonable search. An overnight guest in a home
could claim the protection of 4th Amend, but one who was merely present with the consent of
the householder could not. In addition, property used for commercial purposes was treated
differently for 4th Amend purposes than residential property.
TEST: In order to claim the protection of the Fourth Amendment, a defendant must
(1) Person personally has an expectation of privacy in the place searched; and
(2) This expectation is reasonable (i.e., one that has a source outside of the Fourth
Amendment, either by reference to concepts of real or personal property law or to
understandings that are recognized and permitted by society)
*Note: In this case there was no reasonable expectation→
- They had never been to this apartment before
- They were there only 2 ½ hours
- They were not talking about business, only there bagging cocaine
- No previous connection with the respondents and the household.
- They were merely permitted on the property
“INDEPENDENT SOURCE” & “INEVITABLE DISCOVERY”
The “Independent Source” and “Inevitable Discovery” Doctrines:
Nix v. Williams: Respondent was found guilty of first-degree murder. He successfully challenged the
conviction on the ground that evidence of his incriminating statements, which led the police to the
victim's body, should have been excluded because the evidence was the product of unlawful
questioning by the police. At his second trial, no such evidence was admitted, but the trial court
admitted evidence of the body's location and condition on the theory that the body would have been
discovered in any event, even had the incriminating statements not been elicited from respondent.
Respondent attacked his state-court conviction by seeking a writ of habeas corpus in federal district
court. The district court denied the petition, but the appellate court reversed, holding that if there was
an inevitable discovery exception to the exclusionary rule, it required proof that the police did not act
in bad faith. The Court held that there was an inevitable discovery exception to the exclusionary
rule, but that it included no such "good faith" requirement. It concluded that the record
supported the finding that the victim's body would inevitably have been discovered; and
reversed the appellate court decision.
TEST: Independent source information can apply to evidence first acquired illegally, then
legally. Government MUST show:
o the officers' decision to seek warrant was not prompted on information they obtained
o even if decision wasn't prompted by that, the info obtained illegally can‘t be part of
the reason that the warrant was then issued.
Important for two reasons:
o adopts exception to exclusionary rule for the first time (see above)
o talks about the reasons for exclusion under Massiah
right to exclusion-said even if you're right, the inevitable discovery exception
Court did not say π must show absence of bad faith.
SCOPE OF ―inevitable discovery‖ exception→ evidence obtained in violation of D‘s 6th
Amendment Right to counsel could be admitted. This exception could apply to violations of
other rights as well.
THE “ATTENUATION DOCTRINE”
The “Attenuation” Doctrine:
The principle of attenuation means that if enough additional factors intervene between
the original illegality and the final discovery of evidence, neither the “deterrence” nor
“judicial fairness” rationales behind the exclusionary rule applies. Therefore, the
evidence may be admissible despite the fact that it would not have been discovered ―but for‖
Wong Sun v. United States: Police surveyed Hom Way and arrested him for possession. He said
that he bought from "Blackie Toy" of laundry shop. They went there and James Wah Toy answered
the door, so they assumed he was the same person. He ran when he saw them to the bedroom where
his wife and son were sleeping. He reached in the nightstand, so agent handcuffed him, but no
narcotics were found. Toy said that he knew someone who was selling narcotics, and that was
Johnny Yee. Yee had drugs that he said were from Wong Sun. They went to Wong Sun's house and
handcuffed him in his bedroom, but no narcotics were found. Toy‘s statements in bedroom were
suppressed because it was an illegal arrest, and then Yee's narcotics were suppressed because his
arrest was based on the illegal arrest of Toy, therefore the fruits of illegality. The drugs seized from
seized from Yee are “fruits of the poisonous tree,” since they were seized as the direct result of
the agents‟ illegal entry into Toy‟s apartment. Therefore, the drugs from Yee cannot be
introduced against Toy, under the exclusionary rule. Wong Sun was arrested without probable
cause as well, but his statements were made at the police station. His statement WAS admitted
because of his free will.
TEST: whether, granting establishment of the primary illegality, the evidence to which
an objection is made has been come at by exploitation of that illegality or instead by
means sufficiently distinguishable to be purged of the primary taint.
No distinction between physical and verbal evidence.
Under these circumstances:
- was arrested and released
- came back days later
- voluntarily returned and talked
- statement had "become so attenuated as to dissipate the taint"
Brown v. Illinois: Following an illegal arrest, petitioner gave inculpatory statements after he was
read his constitutional rights. The statements were admitted at trial on the basis that the Miranda
warnings, by themselves, were sufficient to purge the taint of the illegal arrest, making admissible
that which would normally be excluded. On certiorari, the Court held that the Miranda warnings
could neither automatically nor by themselves protect an accused's 4th Amendment rights. Whether a
confession was freely given or improperly coerced, the Court held, had to be determined on a case by
case basis. The Court held the trial court had to examine factors such as the temporal proximity of the
arrest to the confession, the intervening circumstances, and, particularly, the purpose and flagrancy of
the official misconduct. The Court also held that the exclusionary rule did not automatically proscribe
the use of illegally seized evidence in all proceedings or against all persons, and that Miranda
warnings, along with other factors, might permit the admission of such evidence. However, the Court
examined the record in light of those factors and concluded that petitioner's statements were
He gave answers freely, but he was still being held illegally. Even though there was free will,
there is too close of a connection between the statements and illegality.
ATTENUATION TEST:(according to Brown):
o Significant intervening events
o Purpose and flagrancy of the violation
United States v. Ceccolini: a police officer casually but without probable cause or warrant opened an
envelope one the counter of D‘s place of business. Upon discovering policy slips and money
indicative of gambling, the officer asked D‘s employee about it. The employee became a key witness.
Although there was a causal connection arising from the illegal search, the Supreme Court found that
the connection was sufficiently attenuated. Witnesses are differentiated from physical evidence.
The exclusionary rule should be invoked with much greater reluctance where the claim is based
on a causal relationship between a constitutional violation and the discovery of a witness than
an inanimate object.
New York v. Harris: the police officers developed probable cause to arrest D for murder. They went
to his home and arrested him without an arrest warrant. The D was read his Mirranda rights several
times but waived them. After the third reading he indicated he didn‘t want to talk, but he was asked
questions anyway. The sole issue was whether statements made at the stationhouse should have been
suppressed because D had violated Payton. The Court held that where police have probable cause
to arrest a suspect, the exclusionary rule does not bar the State‟s use of a statement made by D
outside of his home, even though the statement is taken after an arrest is made in the home in
violation of Payton.
Hudson v. Michigan: Michigan concedes that the 3-5 second wait before knocking was not long
enough for the ―knock-and-announce‖ rule. The issue was whether violation of the knock and
announce rule requires the suppression of all evidence found in the search. Failure to knock-and-
announce will not require suppression.
o There is no “but for” causation
o Attenuation from the violation
o Costs of suppression in knock-and-announce violation situations is greater than the
deterrent gain of suppression.
o This case was hostile to the exclusionary rule→ ―suppression is always our last resort.‖
Oregon v. Elstad: A statement was made and Miranda was violated to get it. Then, Miranda
warnings were given and there were more statements made. There is an issue because D had no
reason to believe the first statements would not be held against him. The Court held that the
statements D made following the Miranda warnings given were not to be suppressed because
the initial statements were not the product of coercion.
RULE: A suspect who has once responded to unwarned yet coercive
questioning is not disabled from waiving his rights and confessing after given
the proper Miranda warnings.
Missouri v. Seibert: The officer deliberately neglected to give D Miranda warnings, but then the
warnings were given later. The Court determined the 2nd interview was inadmissible.
STANDARD: The question is→ whether it is reasonable to find the warnings could function
To determine whether the warning was effective—look to five factors:
(1) Completeness of question and answers in the first round
(2)Overlapping content of statements (more overlap—more likely ineffective)
(3) Continuity of personnel (different officer is more likely to be ineffective)
(4) Timing (separate sessions are less likely to be effective)
(5) Degree 2nd interview is treated as a continuation of the first (here—they
referred back to the earlier questioning).
o *Note: the factors in this case are on the opposite end of the
spectrum from Elstadt.
Failure to warn was an oversite.
S. Ct. stated,―And it would be unrealistic to treat two spates of
integrated and proximately conducted questioning as independent
interrogations subject to independent evaluation simply because
Miranda warnings formally punctuate them in the middle.‖
Here—there was a plurality—not a majority. Kennedy‘s concurrence decided the vote.
Kennedy said Elstadt should usually apply unless:
The matters are related
Violation is purposeful
There are no curative measures taken
United States v. Patane: Respondent interrupted police when police attempted to read his rights,
saying he knew them. D revealed where evidence was. D argued it should be suppressed because the
statements which lead to discovery of the evidence were taken in violation of Miranda. The issue
was whether by statements as to the location of evidence made where the D was not read Miranda is
enough to suppress evidence found? Unlike unreasonable searches under the 4th Amendment or
actual violations of the Due Process Clause or the Self-Incrimination Clause, there was, with
respect to mere failures to warn, nothing to deter since failure to give the Miranda warning
neither violated the Miranda rule or the Self-Incrimination Clause.
No violation of Miranda or self-incrimination, therefore there is nothing here to deter.
Miranda is limited to the statements—not physical evidence !!!
Deterrence is NOT a justification for exclusion, so the only reason to exclude is to protect
against the risk of coercion. → “It is doubtful that deterrence rational will justify
suppression.‖ (i.e. there is a potential that the deterrence rationale could be used here).
Hence, the door is now open to question if ―deterrence‖ is a Miranda goal
Not giving Miranda warnings is not a violation of Miranda. Miranda only pertains to
statements in the courtroom—here they are not admitting his statements in court they
used them to collect evidence.
S. Ct.: “Admission of nontestimonial physical fruits (the Glock in this case), even more
so than the postwarning statements to the police in Elstad and Michigan v. Tucker, 417
U.S. 433 (1974), does not run the risk of admitting into trial an accused‟s coerced
incriminating statements against himself.”
In a decision without a majority opinion, three justices wrote that the Miranda
warnings were merely intended to prevent violations of the Constitution, and that
because Patane's un-Mirandized testimony was not admitted at trial, the Constitution
(specifically the Fifth Amendment's protection against self-incrimination) had not
been violated. Physical evidence obtained from un-Mirandized statements, as long as
those statements were not forced by police, were constitutionally admissible. Two
other Justices also held that the physical evidence was constitutionally admissible, but
did so with the understanding that the Miranda warnings must be accommodated to
other objectives of the criminal justice system.
The “Good Faith” Exception
“Good faith” Exception:
United States v. Leon : Officer had a warrant and performed a search—later it was found
that the facts on which the warrant was based did not show probable cause. The
exclusionary rule should be modified so as not to bar the admission of evidence seized in
reasonable, good-faith reliance on a search warrant that was subsequently held to be
defective. Examined on a case-by-case basis & exclude only when it advances the
purpose of exclusionary rule (to deter police - not to deter judges).
What do the officers have to show?
“GOOD FAITH” OBJECTIVE TEST:
“Reasonable reliance on a (search) warrant issued by a neutral and detached
* NOT a subjective test. It is what a reasonably well trained [educated] officer would
have known—not what this officer believes.
*VERY LIMITED TO ONLY SEARCH WARRANTS
o Good faith alone is not enough (i.e. reasonable reliance by well-trained officer)
o Objective/Subjective bad faith will not always bar use of the evidence (double-
check this interpretation)!!!!
Deterrence is not an issue here: This is not about deterring judges—they don‘t have a stake,
they aren‘t inclined to care. There is no need or likelihood of police abuse in this area.
4th Amendment does not give a con right of exclusion—that is a judicially created rule to
prevent violation of an individual‘s rights by police.
The exclusionary rule is not required by the Constitution, but only a means of deterrence.
Good faith is the current standard for applying the exclusionary rule:
CHALLENING THE “GOOD FAITH” EXCEPTION: 4 circumstances when the evidence will
be excluded notwithstanding the fact that the officer acted in good faith:
1) If the magistrate issued a warrant by relying on affidavit supplied by affiant who knew
that statements were false or recklessly disregarded the truth. Generally speaking that
magistrate must assume officer is saying the truth because he is under oath. In this situation we
have bad faith and needs to be deterred.
2) If issuing magistrate abandoned neutral and detached role by blindly rubber stamping
behavior of police. Reasonable officer must realize that this behavior is unethical;
3) If warrant is completely lacking in any indicia of probable cause than there is no good faith
on part of police officer; and
4) If police officer relies on warrant that is facially deficient. If it looks like a pre-constitution
general warrant lacking all particularities.
Dissent: concerned with judicial integrity
Massachusetts v. Sheppard: Police couldn‘t find the correct warrant form—so they used one for
drugs and changed it, and even though all the changes were not correctly made, the judge said it
would be fine. This case is different because the police made the mistake.
The uniformly applied rule was that a search made pursuant to a warrant that did not
conform to the 4th Amendment was unconstitutional
The evidence established police were not required to disbelieve judge who advised him
warrant was valid
Determination of a judge acting within his jurisdiction, even if erroneous, were valid
and binding until set aside
The exclusionary rule was to deter unlawful searches by police not to punish judge‟s
Extensions of “Good Faith” Doctrine:
(1) Objective reliance from a statute:
o Illinois v. Krull: the Court concluded that even though a statutorily-
authorized search was constitutionally unreasonable, the evidence obtained
as a result of the search was admissible
(2) Objective reliance on clerical error made by a court employee.
o based on a computer record that erroneously indicates the existence of an
outstanding arrest warrant, evidence found as a result of that ―unreasonable‖
arrest is admissible IF the officer acted in ―objectively reasonable reliance‖
erroneous computer record and IF ―court employees‖ are responsible
The “Impeachment Limitation
The “Impeachment” Limitation:
Harris v. New York: During cross-examination at his trial, D was questioned regarding
specified statements D made to the police immediately following his arrest. The statements
partially contradicted D‘s direct testimony, and the state sought to impeach D with his
statements. However, the state made no effort to use the statements in its case-in-chief,
conceding that the statements were inadmissible under Miranda. D was subsequently
convicted of selling heroin to an undercover police officer, and the appellate court affirmed
D‘s conviction. On appeal, the court held that Miranda did not prevent the state from
using D‟s statement to the police to confront defendant with prior inconsistent
utterances. Thus, the court concluded that defendant's credibility was appropriately
impeached by use of his earlier conflicting statements.
Only entered for the sole purpose of evidence—not to prove the truth.
The jury should be told that they cannot use the information to prove that he is
guilty—it can be used to go to his credibility.
Sufficiency: if the government did not have enough proof unless they used his
statements—the verdict would be overturned for insufficient evidence.
Reasons for exclusion don‘t apply here (deterrence and a guard against risk of
The government gets enough deterrence from barring it in the case in chief. Whatever
additional deterrence will be small.
The Court doesn‘t deal with the risk of compulsion.
Oregon v. Hass: involved a confession obtained after the police gave D warnings, but failed to honor
his request for counsel. The Court did not allow the information in the state‘s case, but allowed it for
impeachment. The Court acknowledged it is sometimes advantageous to “fish” for impeachment
Michigan v. Harvey: statements obtained in violation of Michigan v. Jackson, branch of the Massiah
doctrine may be used to impeach a D‘s testimony. The Court held narrowly that if it is one kind of
Massiah violation (suspect asks for a lawyer and police initiate), then you may use it to impeach on
Michigan v. Jackson was a prophylactic rule—not a ―right‖
U.S. v. Havens: Defendant's co-conspirator was searched as he tried to enter the United States, and
cocaine was found in pockets sewn into his shirt. D‘s luggage was then searched, and a tee-shirt with
cut out material corresponding to the pockets in the shirt was found. The cut up shirt was suppressed.
At trial, the D denied any knowledge that the co-conspirator was smuggling drugs. In his direct
testimony, the D stated he had nothing to do with the co-conspirator's concealment of drugs on his
body. On cross-examination, D was asked if he had anything to do with sewing the pockets on the co-
conspirator's shirt, and D denied any participation. The prosecution was then permitted to introduce
evidence of the cut up tee-shirt. D appealed and the appellate court reversed the conviction. The
prosecution sought certiorari. The Court held that illegally seized evidence was properly admitted
to impeach any aspect of D‟s testimony, and that such impeachment was not limited to a direct
contradiction of a particular statement made during direct testimony.
Physical evidence can be used, just like statements
Adds to Harris and Hoss—this also applies to the 4th Amendment
You can impeach on cross—even if he doesn‟t say something impeachable
during his testimony.
James v. Illinois: The state court reasoned that, in order to deter defendant from engaging in perjury
"by proxy," the impeachment exception to the exclusionary rule ought to be expanded to allow the
State to introduce illegally obtained evidence to impeach the testimony of defense witnesses other
than defendant himself. The Court reversed and remanded. An expanded impeachment exception
likely would chill some defendants from calling witnesses who would otherwise offer probative
evidence. Given the potential chill created by expanding the impeachment exception, the conceded
gains to the truth-seeking process from discouraging or disclosing perjured testimony would be offset
to some extent by the concomitant loss of probative witness testimony. Thus, the truth-seeking
rationale supporting the impeachment of defendants did not apply to other witnesses with equal force.
Expanding the impeachment exception to all D witnesses would significantly enhance the
expected value to the prosecution of illegally obtained evidence. It was thus far more than a
"speculative possibility" that police misconduct would be encouraged by permitting such use of
illegally obtained evidence.
Two interests are implicated:
o There is more incentive to abuse—exclusion is needed for deterrence.
o Defendants just won‘t even put on a defense because they can keep the State
from putting on witnesses
o They often know they have enough to prove guilt—so they have nothing to
lose in acting illegally.
o Also, they fear perjury. Innocent witnesses are less likely to lie. You don‘t
need this as much to promote truth.
o There are costs to truth—because Ds might not put on a defense and the
court won‘t get to the truth.
Nature of the Violation Defendant on Direct Defendant on Cross Defense Witness on
4th Amendment Yes (Havens) Yes (Havens) NO (James v. Illinois)
Miranda Yes (Harris/Hass) Very Likely—the Unknown, but very
same rationale exists possible YES.
and they are already to There are arguments
balance Miranda in not to extend James—
favor of the State with all you gain is rules—
the fruits exclusion not actual constitutional
and for the public rights. The risks from
safety exception. Patane suggest the
(Quarels, Harris, and opposite holding from
Due Process/Privilege No (Mincey) No (Mincey) No (Mincey)
Against Self- When there is actual
Incrimination compulsion—it violates
(i.e. actual your rights to use the
6th Amendment Uncertain w/ one Uncertain Uncertain
v. Harvey—YES. The
rest depends on how the
Massiah—as just a rule,
or as a right.