a. 4th Amendment reads: The right of the people to be secure in the 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.
b. Police may search without a warrant if they have probable cause. The
police have the power to do what they want at the scene. Your only power
is to later litigate the issue.
II. EXCLUSIONARY RULE:
a. United States v. Weeks- Supreme Court ruled that the Exclusionary Rule
is applicable in federal courts.
b. Wolf v. Colorado- boldface case- EXCLUSIONARY RULE
PREVIOUSLY RULED TO NOT APPLY TO STATES:
i. Comparative analysis that most other nations did not regard the
Exclusionary Rule as a part of due process; it is a rare remedy.
ii. Within the U.S. the majority of states rejected the Exclusionary
iii. It is up to the state to come up with their own remedies.
iv. The Exclusionary Rule is a judicially created remedy, it’s not in
the Constitution, not legislatively imposed, which should give way
to state legislative prerogative.
v. DISSENT: Held there is no other valuable sanction that would
deter the police. Self-policing won’t do. Cannot use tort theory or
trespass actions because there is governmental immunity and
because physical damages are too small.
c. Mapp v. Ohio- boldface case- EXCLUSIONARY RULE APPLIES TO
i. Three little pigs case- FACTS: Three Cleveland police officers
arrived in a tip that a person was hiding in the residence who was
wanted for a recent bombing. The officers knocked on the door
but Mapp refused to admit them without a search warrant. The
officers sought entrance three hours later, when 4 more officers
arrived, and Mapp did not answer the door. The police forcibly
gained admittance. Mapp’s attorney arrived and the police would
not allow him to speak with Mapp. Mapp demanded to see the
warrant and the police held up something they claimed was a
warrant so Mapp grabbed it and put it in her bosom. The police
got the warrant back and they arrested her for being belligerent.
The police found some obscene material during the course of their
wide-spread search. At trial, no warrant was produced and they
gave no explanation for it not being produced.
ii. DECISION: The Exclusionary Rule applies to the states.
Government cannot break its own laws. It is necessary to protect
d. Rochin- shock the conscience rule still good law but is rarely invoked
(entered and guy swallowed pills so they made him vomit)
e. Reasons to keep Exclusionary Rule (Carter likes the Exclusionary Rule):
i. Deterrence is its main purpose
ii. Other remedies do not work. Exclusionary Rule is the most
effective remedy. More than half the states believe in the
effectiveness of the Exclusionary Rule. It is among the states to
honor the E.R.
iii. Other states have failed to find a better way to protect, so by
default E.R. most effective.
iv. Incorporation principles that Bill of Rights should apply to
fundamental principles to the states must apply otherwise Fourth
Amendment would be valueless.
v. There should be uniformity in criminal justice.
vi. States must be obedient to federal Constitution.
vii. Judicial integrity- nothing can destroy a nation more completely
than one that ignores its own laws or charters. If the government is
a law breaker it breeds contempt for the law. Government should
teach by example.
viii. Federal arena had the rule for nearly a century and has been a
success. There are instances of criminals being set free but most
instances the conviction can be obtained through other means.
ix. E.R. is a check and balance on police.
x. Hard to sue the cop because prosecutors do not want to sue the
people they work closely with.
xi. Cannot put a price on privacy. The criminal really does not have
damages for tort recovery.
xii. Criminal is the surrogate arguing your rights to privacy. Standing
f. Reasons to get rid of Exclusionary Rule:
i. Purpose is to protect privacy but instead it protects criminals.
ii. Frees the guilty.
iii. Deflects truthfinding process.
iv. No definitive proof it works.
v. On the outer bounds of Fourth amendment police work:
1. Cannot deter bad faith officers because they do not care and
the effects are either too far attenuated or they commit
perjury to cover it up.
2. Good faith efforts where thought acting correctly, so should
not suppress evidence found in this manner.
vi. Let states decide which remedies work. Allow states to
vii. E.R. is a judicial remedy.
viii. Not expressly in the Fourth Amendment
ix. “Reasonable” is a word that is up in the air and it is not fair to rid
x. Police do not have time and training to grasp rulings on Fourth
xi. Other options
1. Suspend the cops- maybe suspend if do it habitually.
2. Give the police a choice- either fine or exclude the
3. Can you incorporate civil procedure in criminal law? This
happens when forfeit things if involved in criminal
4. Incentive program to give money to police that don’t
violate the 4th.
5. Evaluate costs and benefits of suppressing reliable
6. Amend govt. immunity statutes to allow such actions
against the police. Do not allow the guilty to argue, but
allow the innocent to argue. Don’t extend damages to
guilty but extend damages to innocent. Innocent have
automatic rights to go after police for a violation.
7. Extend Good Faith Exception to search or warrant
8. Apply a contingent E.R. based on violation and severity of
crime. So, if crime is severe, do not apply E.R. but if it is
minimal, apply E.R.
9. Shame the law enforcement officer by having punitive
measure, list in newspaper, put in their files, etc.
g. Exclusionary Rule NOT Applicable to:
i. E.R. NOT applicable to deportation proceedings. Also immigrants
lack standing to claim Fourth Amendment violations.
ii. E.R. NOT applicable to grand jury proceeding. Grand jury’s
function is to investigate and indict, not to litigate the issues. The
Fourth Amendment violations can be argued later, and there is no
one there to argue it anyway.
iii. E.R. applies to forfeiture proceeding because forfeiture
proceedings are quasi-criminal (even though they are civil).
iv. E.R. does not apply unless the person is an agent for the
government. To determine if an agent, look at totality of the
circumstances. Look to motive of private actor, any benefit or
compensation received from the actor, any advice, direction, and
level of participation given by the government. E.R. applies if
enough government involvement. E.R. does not apply if the search
conducted by a private person.
v. E.R. does NOT apply with administrative errors. So if the court
clerk made an error by not deleting the warrant, the E.R. does not
apply. No E.R. if computer error.
III. GOOD FAITH EXCEPTION:
a. United States v. Leon- boldface case- if police act with reasonable good
faith, then the evidence will not be excluded. In the warrant there was not
sufficient probable cause but the magistrate signed it anyway. The police
relied on the warrant, because it was signed by a magistrate, so even
though the warrant was defective, the officers based their search on good
faith so the evidence was admitted at trial.
b. GOOD FAITH EXCEPTION- OFFICERS MUST ACT WITH
OBJECTIVE REASONALBE BELIEF BY WHAT WELL TRAINED
POLICE OFFICER WOULD HAVE BELIEVED. The purpose of the
Exclusionary Rule is to deter police misconduct, rather than judicial
misconduct. Judges have no stake in the outcome, but the police do.
There is little evidence to suggest judges are inclined to subvert the Fourth
Amendment like the police are.
c. Arizona v. Evans- good faith exception extends to non-warrant search.
Traffic stop and a court employee said there was an outstanding warrant
even though in actuality this was a clerical error. They found marijuana in
the car and the marijuana was not suppressed under E.R. and cited good
faith exception saying evidence officer acting objectively reasonably when
relied on computer record (stating E.R. deters police misconduct not
mistakes, no evidence that court employees are likely to ignore the Fourth,
and no reason to think if applied E.R. in this case it would have a
significant effect on court employees).
d. There are exceptions to the Good Faith Exception.
i. If the officer produces a warrant reciting the basis for the officer’s
belief and the warrant is grounded on an affidavit that is knowingly
or recklessly made, there is no good faith.
ii. If magistrate abandons his neutral role in deciding if there is
probable cause, there is no good faith.
iii. Warrant based on affidavit so lacking in probable cause as to
render belief in it, there is no good faith. The warrant cannot be
ridiculous. It needs to be particular and grounded on probable
IV. FRUIT OF THE POISONOUS TREE DOCTRINE
a. Def = E.R. extends not only to the direct products of government
illegality, but also to secondary evidence that is fruit of the poisonous tree.
Nardone v. U.S.
b. Three exceptions to this:
i. Independent source doctrine- if not causally linked to
governmental illegality is admissible- Silverthorne Lumber v.
U.S.- doesn’t matter if evidence FIRST found lawfully then later
found unlawfully OR if evidence FIRST found unlawfully then
later found lawfully, if could be found lawfully, admissible. But, if
it was first found by unlawful means, have to determine if later
search done solely because of what was done unlawfully, and if so,
the search is unconstitutional.
ii. Inevitable discovery rule- Nix v. Williams- evidence linked to
earlier illegality is admissible in criminal trial if prosecutor proves
by preponderance of evidence that challenged evidence ultimately
or inevitably would have been discovered by lawful means. In this
case, they wrongfully got a man to admit to killing a person
without guidance of an attorney so they called off the search and
had him lead them to the body, but the court found that the
searchers were close and inevitably would have found the body
themselves so it was admissible under the inevitable discovery
1. Differs from the independent source doctrine because with
the inevitable discovery rule, there is NOT an independent
source, only a hypothetically independent one. There is a
higher burden of proof with this rule.
iii. Attenuated connection principle- Nardone v. U.S.- evidence
secured as a result of police illegality is admissible if the
connection between the illegality and the challenged evidence has
become so attenuated as to dissipate its taint. Factors:
1. Temporal proximity- more time between initial illegality
and acquisition, the less likely there’s taint
2. Intervening events- more events between the illegality and
acquisition, less likely there’s taint
3. Flagrancy of the violation- more likely no taint if initial
illegality was not flagrant (so it was accidental)
4. Nature of evidence- example, witnesses more likely to be
free of taint because they have to come forward themselves,
than inanimate objects which have to be discovered by
V. FOURTH AMENDMENT TEST- SEARCH
a. Trespass Doctrine
i. Trespass Doctrine- Olmstead used wiretaps to listen to
conversations and said eyes and ears cannot trespass
ii. Silverman- almost ended trespass doctrine by saying that a search
occurred when a microphone inserted in party wall, but said it was
not because of the physical intrusion
b. Katz v. United States- Boldface case- ended trespass doctrine- telephone
booth, FBI agent overheard gambling bets being placed with assistance of
electronic listening and recording device to outside of booth. Court of
Appeals said there was no physical trespass, so no Fourth Amendment
violation. DECISION: No Trespass Doctrine. Fourth Amendment does
not protect places but people. Physical intrusion is irrelevant. Two prong
test, need subjective and objective expectation of privacy. Subjective,
need actual expectation of privacy. Objective, society must be prepared to
recognize as reasonable (this is the most important)- second prong rules if
the subjective and objective prongs conflict. Court recognizes 4th protects
privacy but is not a general right to be let alone by the government (you
don’t have the general right to be anonymous). A person is not protected
against visibility (just because glass booth, still protected) but may be
protected against uninvited ear (electronic listening).
i. Subjective prong- need subjective hope or intent, basically skip
over this prong
ii. Objective prong based on the following:
1. Nature of property inspected
2. Extent to which person has taken measures to keep
information private- don’t expose to the public or
voluntarily convey to others
3. Degree of intrusion by police
c. California v. Greenwood- not boldface case- garbage case-
1. Not paying for privacy, you know people go through your
garbage all the time.
2. Common knowledge that people go through your garbage-
according to Smith v. Maryland (pen registers) no
expectation of privacy in information voluntarily turn over
to others- but in this case, the mere possibility of container
being searched was enough to not allow Fourth protection
(in Smith actual information was turned over, here only
have the possibility)
3. Fourth doesn’t protect information knowingly exposed to
1. Required to dump- need to put the garbage out there for
cleanliness and following city ordinance. Reasonable
expectation of privacy extends to that ordinance.
2. Paying for the garbage service so she has a reasonable and
subjective expectation of privacy because it is under her
3. There is a difference in someone picking through your
garbage because they are not using it to prosecute me.
Government picks through your garbage, then they use it to
4. Garbage is highly personal.
5. Not really abandoning your garbage, you are leaving it to
be destroyed. It is like the mail, you don’t give up your
privacy when giving letter to mailman.
1. There could be a subjective expectation of privacy but we
have to consider if society is prepared to accept that there is
an expectation of privacy. The court held the garbage is
accessible to the public and to scavengers. Defendant
abandons garbage to a third party, and if given to third
party, police cannot be expected to avert their eyes to
criminal activity. What a person knowingly exposes to the
public, even if in his own home or office, it is not subject to
protection of Fourth Amendment.
d. Kyllo v. United States- boldface case- thermal imagers- indoor marijuana
growth requires high intensity lamps so the agents used a thermal imager
to discover there was high amounts of heat in certain areas of the home.
They used the thermal imager from the street and the scan only took a few
1. Not penetrating the home to get the image
2. This is something that is in plain view- evidence of heat
can be seen from the home (dripping snow)
3. Scan does not detect intimate details within the house
4. Look at Greenwood, this is heat waste, abandonment theory
5. There’s no difference between this and a drug sniffing dog
(drug sniffing dogs are proper searches)
ii. DEFENSE (do not want thermal imager used)
1. Subjective expectation of privacy- yes, because it is in the
2. Objective prong- there is a reasonable expectation of
privacy- fundamental expectation of privacy is with the
3. Using enhanced technological device to find out what is
happening in the house, there was no melted snow- you are
not magnifying your sense, you could not have seen it
4. This is not a physical act by the defendant, the person
affirmatively takes the trash to the curb.
5. Where does it stop? At the hands of advancing technology.
6. Good Faith Exception
7. Should get a warrant to use the thermal imager
8. Dog use is traditional and fundamental but thermal imagers
are not and dogs are trained to smell only illegal things but
the thermal imager’s finding heat may still be innocent.
iii. DECISION: The conduct was a search because the technology is
not in public use and the home is a constitutionally protected area.
This is an unlawful search because they did not first get a warrant.
e. Canine searches-
i. United States v. Place- canine sniff is not a search, especially by a
well-trained drug detection dog. It does not require opening the
luggage and is much less intrusive than a typical search. The sniff
discloses only the presence and the information obtained is limited.
The sniff does not expose non-contraband items in luggage. It is a
focused act. Merely disclosing if a substance is cocaine does not
compromise legitimate expectation of privacy and is therefore not
1. However, in this case, the person was detained for 90
minutes and the court held this was excessive, but they can
temporarily detain both property and people under Terry.
ii. Illinois v. Caballes- dog sniffs- FACTS: It was a normal traffic
stop for speeding. When the cop radioed in that he was stopping
this guy, he did not request it, but another cop immediately came
over with his drug dog. The cop was writing a warning ticket and
the other cop allowed it have the dog sniff the car. The dog alerted
and they discovered marijuana in his trunk. They arrested the man.
DECISION: People do not have an interest in possessing
contraband. Your expectation that the authorities won’t know is
not the same as having a reasonable expectation of privacy. The
dog sniff is only on the exterior of the car and only discloses the
presence of drugs. DISSENT: Dogs are mistaken. Dog sniff
should be subject to Fourth Amendment analysis. Dogs provide a
tool that goes beyond human senses. The sniff reveals intimate
details. Police do not have reasonable grounds to conduct sniff
searches for drugs simply because they stopped someone for
speeding. In the case of a dog sniff, it smells a closed container
and allows the police to find something not yet put in their hands,
which is different than doing a drug analysis when the drugs were
already in the police’s hands. Dogs change the character of a stop.
Should not remove the Fourth Amendment just because you’re
more likely to apprehend the guilty. Now can do suspiciousless
dog searches. With dog sniff, you don’t have option to refuse.
Search for explosives is different.
iii. DEFENSE ARGUES:
1. Comparable to Terry. Two prongs: 1. If officers actions
justified at inception. 2. Whether reasonably related in
scope to circumstances that would justify action. You can
do frisk if you have reasonable suspicion, it requires that
the stop is justified and that the officer’s actions are
reasonably related to the scope of the stop. Officer cannot
prolong the stop to expand it to something else. In this
case, the officer had no reason to suspect he had drugs.
Bringing the dog was not related to the reason for the initial
stop. Use of dog converted traffic stop into drug
investigation, which was not supported by any reasonable
suspicion that defendant possessed narcotics, example,
cannot have road blocks to discover drugs because it’s
ordinary crime prevention (but can have road block with
drunk drivers because it may cause substantial harm to
others or can have road block to prevent terrorist attack
because it is a special need- special needs are those needs
beyond the law enforcement)
2. Seizure that is lawful at its inception can violate the Fourth
if its manner of execution unreasonably expands to other
3. Dog sniff is a search. We have learned a lot about dog
sniffs since Place and it is unreliable. Carter does not see
why this makes it not a search.
4. Racial profile with drug dogs. Encourages pre-text stop.
5. Dogs are intrusive and intimidating. It makes people
nervous. Change the feel of the stop.
6. Police can now have dogs sniff people.
7. Infallibility of dogs- number of false positives by the dogs
and that dogs also search innocent conduct like in Kyllo.
Trained dog could reveal facts about private enclosures.
8. As to lesser expectation of privacy, under N.Y. v. Belton,
even with search incident to arrest, it does not permit
search of trunk. (not brought up by students)
iv. PROSECUTION ARGUES:
1. Dog sniff is not a search, which the court said in Place
because it only reveals possibility of contraband and does
not expose other non-contraband which would not be in
view. Therefore, it is not subject to normal Fourth
2. Kyllo is distinguished by pointing to the fact that Kyllo
dealt with the search of a home and here this is just a car,
not a castle. Thermal imaging could indicate what was
happening in the home. Cars are not afforded the same
protection, lesser expectation with automobiles.
3. Reasonable- False positives are still sufficient probability
to search the car. Fourth Amendment does not require
4. Police may use common enhancing tools in searching
5. Use of dog is not intrusive, he does not enter the car. Only
looking for illegal things.
6. Dog sniff is variation of Plain View- like Plain Smell or
something, which was enhanced by common dog sniff, no
search because owner did not display intention to keep it to
himself (was not brought up by students)
f. Photographic enhancing- permissible- aerial photography was not a Fourth
Amendment search. The mere fact that human vision is enhanced does
not give rise to constitutional problems. The possibility of entering walls
or windows would raise a different and more serious question.
g. Facial Character recognition- surveillance at the football game is
constitutional. Camera photographs their face and the image is remade
and scanned and compared to images in police database.
h. Electronic tracking- beeper is unconstitutional if it reveals information that
would not have been obtained through visual surveillance. It verifies the
officer’s observation and establishes the article remains on the premises
and the search of a house should be governed by a warrant. United States
v. Karo. But, could have a beeper on a barrel and so long as can see it, no
problem. United States v. Knotts.
i. FALSE FRIENDS
i. Undercover cop- X is a police informant, but pretends to be the
drug dealer’s friend or business partner. In this case, no search
occurs. Misplaced confidence in others is not protected- when a
person voluntarily speaks to another he assumes the risk- Hoffa (in
hotel room)- White says the same thing
ii. Wired informant- White said treat as same as undercover cop.
j. Open Fields- no search in an open field because open fields are not
intended to shelter from government intrusion, even if couldn’t have
observed without trespassing- Oliver
k. Curtilage- land immediately surrounding and associated with the home
and is entitled to Fourth protection- look to how land is used, how close it
is to house, if it’s within fences or other enclosures, and steps taken to
keep land from observation- U.S. v. Dunn- ranch with barn and barn not
l. PEN REGISTERS- Smith v. Maryland- keep track of numbers dialed from
home- no reasonable expectation of privacy in numbers dial on phone
because voluntarily offer this information to phone companies to make
m. Electronic tracking devices- Knotts- put beeper on barrel and this was
okay because did not tell police anything they couldn’t have observed with
their own eyes and the barrel was on the roads. Karo- put beeper on barrel
and said the Fourth protected against use of beeper inside house because
police could not have observed that.
n. Aerial surveillance- Ciraolo- airplane flew above and observed drugs
growing, held that even though in curtilage, his building a fence did not
preclude police viewing and it was unreasonable for D to expect privacy
from the air. Florida v. Riley- helicopter- not a search because D
knowingly exposed his greenhouse to surveillance because anyone could
have observed from above and would have been different had helicopter
been breaking the law.
i. State v. Christensen- FACTS: There was a robbery and police
believed that the boyfriend did it. Previously, the police had been
to the girlfriend’s house trying to find evidence but they found
none but they asked the mom to keep a look out for evidence of the
crime that might surface. Mom answered the cordless phone and
handed the phone to her daughter, who took the phone to her room
and closed the door. Mom listened in on the daughter and her
boyfriend’s telephone conversation by pushing the speaker button
on the console. In the conversation, the boyfriend made statements
about a recent robbery, saying he knew the whereabouts of the
purse, but not that he took part in the robbery. Neither the
girlfriend or boyfriend consented to the mom listening in. The
mom testified at trial to what she heard. STATUTE: WA Privacy
Act: Need consent of all parties to the communication. 1.) Private
communication by device, 2.) intercepted, 3.) by device designed
to record or transmit, 4. without the consent of all parties to the
private communication. If meet all of these, it is a private
communication and you are not allowed to listen in or record.
ii. DECISION: The court decided that Christensen had a subjective
expectation of privacy by asking to speak to his girlfriend and the
girlfriend had one by taking the phone up to her room and closing
the door. The expectation of privacy is reasonable and the mere
possibility of the mother listening in is not enough to make their
expectation unreasonable. There is no minor age exception.
1. Because people know that it is possible for calls to be
monitored, expectation of privacy is not reasonable. Courts
have resoundingly not accepted this argument. Just
because it is possible does not mean you do not have a
reasonable expectation of privacy. But should still make
2. Children should have reduced expectation of privacy
especially if their welfare is at issue in their parent’s home.
Parent can monitor phone calls coming into family’s home.
Exception to federal wiretap statue is for child’s well being.
3. Mom had vicarious consent by being the mom to listen to
daughter’s phone conversation.
4. One who owns the home has the right to intercept the
phone calls, if you pay the bills, you have the right. There
is something towards this in Alderman, standing, an owner
has standing to contest searches and seizures, so if reverse
this, say homeowners have the right to invade phone calls
into their homes.
5. Speakerphone not a device used to transmit or record. This
is why Court of Appeals reversed the case. It is like
listening on an extension phone and there are two other
WA cases that said it is okay to listen on extension phone.
It is also permissible to tilt a phone so officers could listen
6. He didn’t say keep this conversation private
7. Daughter knew her mother had previously listened in to
8. People use the speaker phone all of the time and they don’t
ask for permission.
9. Only want a parental exception
1. There is a subjective expectation of privacy. Conversation
was private. What you expect to be confidential, secret, not
open to public or third persons. Same expectation of
privacy as a wired land phone.
2. Factors that bear on reasonableness- how to determine
reasonable expectation of privacy: threefold test: 1.)
Duration and subject matter of communication, 2.)
Location of communication and potential for third party
presence, and 3.) Role of person and their relationship to
the person. Also look to state statutes.
3. Even if can say that daughter waived her expectation of
privacy, defendant did not waive his expectation of privacy.
4. Transmit means to communicate and it does not necessarily
mean through a technological device. So, the console
could be construed to transmit information.
5. WA is most restrictive state regarding privacy acts and the
court should decide in accordance with that history. No
parental exception, legislature makes exceptions not
6. Mom was an agent of the police and she agreed to allow the
police to search and to look out in the future. Look at
motive of actor, level of govt. participation, and benefit to
actor to see if agent of govt.
7. It’s not the daughter’s privacy we are concerned with, it’s
Christensen’s privacy we’re referring to
8. Mom is an agent of the police because she cooperated by
allowing them to search her home and they told her to let
them know if anything comes up. Because she is an agent
of the police, they should have gotten a warrant. To see if
an agent, look at totality of the circumstances. Look to:
a. Motive of private actor
b. Any benefit or compensation received from the
c. Any advice, direction, and level of participation
given by the government.
i. Minnesota v. Olson- RULE: Any overnight guest, even those who
do not have the power to admit or exclude others because the host
is present, can challenge a search in the host’s home.
ii. Minnesota v. Carter- boldface case- FACTS: Confidential
informant told police she saw people bagging drugs in their ground
floor apartment through the blinds. The police saw them doing this
through a gap in a closed blind. They got an affidavit for a search
warrant and were arrested when they tried to drive away. A search
of the vehicle turned up cocaine. Thompson, the occupant of the
apartment, was arrested. The two other people had never been to
Thompson’s apartment before and were only there for two and a
half hours. They were only there to bag their drugs and paid her in
drugs. ISSUE: Do the defendants have standing to contest this
search? DECISION: Overnight guest has an expectation of
privacy because he goes to someone else’s home because he trusts
his possessions will not be disturbed there. But, if merely present
with the consent of the householder, may not have Fourth
Amendment protection. HOLD: No Fourth Amendment violation.
This is somewhere between being an overnight guest and being
legitimately on the premises, but the commercial nature, short
period of time there, and lack of previous connection lead to
conclusion that this situation is closer to that of one simply
permitted on premises. RULE: An overnight guest can challenge
search of another’s home but a person who merely has the consent
of the owner to be there cannot necessarily challenge the search of
another’s home while he was there (three factors: commercial
transaction, relatively short period of time on premises, and lack of
any previous connections).
1. Can invite in anyone, for business or pleasure, into your
home. Guests are given high priority when invited into a
2. Police violated the curtilage of the home by peeking in the
blinds to see the drug deal. Deterrence- if police can
violate the Fourth and knows that the person would not
have standing, they can just violate the Fourth- once one
person stands for Fourth, they stand for us all.
3. Legitimately on the Premises- anyone who is legitimately
on the premises can contest a search or seizure, includes
pizza delivery guy
4. Reinstate the Legitimacy on the Premises Doctrine
a. Adverse Interest- drugs were alleged to belong to
5. Police are not deterred so they can take advantage of the
fact that someone does not have standing and search in any
manner they please.
6. Apply a Katz test- but this is weak because we are arguing
what is a legitimate expectation of privacy. Katz principle
gives standing to contest a search. Defendants had a
reasonable expectation of privacy because:
a. They were invited into Thompson’s home.
b. The doors, windows, and blinds were closed.
c. Comfortable because were wearing slippers.
d. Factually, this is better than Katz because there is a
home element here.
1. Must show have expectation of privacy in place searched
and it must be reasonable. Can even invoke real or
property law in the examination of reasonableness. Must
have a legitimate expectation of privacy in place searched.
2. They were only there for a business transaction, apartment
used for commercial purpose, and the commercial purpose
should be treated differently than a home.
3. Only there for a couple of hours- if you were only a guest,
you cannot object to a search in the owner’s bedroom.
4. No previous relationship with the owner.
5. Not overnight guest- look to totality of circumstances to
see if visitor should have Fourth Amendment right: 1.
relationship, 2. previous visits, 3.
6. Legitimately on the Premises- was previously rejected by
the Court (Carter likes it because the people in class as the
prosecution could not refute it)
a. Of property- need meaningful interference- so in Karo when put beeper on
barrel, not seizure because barrel did not belong to him and did not
b. Of persons- Terry-
i. Examples of seizures- physically restrained, ordered to stop,
intentionally shot, taken into custody for questioning or
fingerprinting, roadblock, or stop for traffic violation
ii. Seizure = reasonable person thinks not free to leave- subjectively
thought is irrelevant
iii. Merely asking questions is not a seizure
iv. Florida v. Royer- took his airline ticket and i.d. and made to come
to room and plurality said this was a seizure because could not
leave without ticket
v. Factory sweeps- Delgado- no seizure because people are restricted
not by law enforcement but by their willingness to work, workers
could move about factory, and encounter only brief
vi. Bus sweeps- Bostick- restrained by bus, no seizure, same
encounter in lobby of bus station would not be a seizure for sure
vii. Age, race, and gender is not irrelevant in analysis, but not
a. MUST BE A VICTIM OF THE SEARCH, as opposed to someone who
claims prejudice only through use of evidence gathered against as a
consequence of a search of someone else.
b. PERSONAL- cannot be asserted vicariously. So, does the defendant have
a reasonable expectation of privacy in the area protected.
c. Liberal approach to allow people to assert a Fourth Amendment challenge.
Arguing standing raises a Fourth Amendment risk- you’re almost
admitting to the contraband. It serves a convictive component that admits
the contraband is in their area.
d. People always have standing to challenge the search of their own person.
So, even if driving in another person’s car, if the non-owner occupant’s
person is searched, he can challenge that.
i. Non-owner passenger can also challenge the forcible stop of a car
(so, if a car is stopped, the non-owner occupant can challenge the
reason for the car stop because that constitutes a seizure of his
person. But, he could not challenge the trunk search.
e. The automatic standing rule was abolished. Only those whose privacy
interests were violated can raise the Fourth Amendment issue. You can be
aggrieved by the evidence but you may have no privacy interest to argue a
Fourth Amendment claim (if your drugs are found in someone else’s
jacket, you have no standing to argue the Fourth Amendment).
f. Overnight guest has reasonable expectation of privacy. Minnesota v.
Olson. Temporary guests become more questionable.
g. Rakas v. Illinois- car search where petitioners were passengers and police
found a rifle on the right front seat. Defendants denied ownership in the
car so the Supreme Court held they lacked standing to contest the search.
They did not assert a property interest in the rifle or the shells. There’s no
such thing as “target standing” that saying whoever is the target of the
search will automatically have standing because the person himself will
have a motivation to raise his own Fourth Amendment claims.
h. Wong Sun and Alderman- no derivative standing, so if co-conspirators or
co-defendants, cannot say one has standing just because the other does.
i. Jones v. U.S.- legitimately on the premises argument, overruled by Rakas.
j. In Rawlings v. Ky, the defendant asked for standing to contest search of
his drugs in her purse, and court held he had no expectation of privacy to
her purse. He had never used her purse before nor did he have the right to
exclude others from using her purse. In fact, a third person, had free
access to the purse. The nature of the transaction show that the defendant
did not take normal caution to maintain privacy in her purse. No
expectation that her purse would remain free of government intrusion.
i. Footnote in this case says that the fact that Rawlings only knew her
a few days says nothing, and it is not diminished because it is the
first time he used the purse (otherwise, a first time bailment would
not justify an expectation of privacy ever). Reliance on the right to
exclude may show you have an expectation but it is not conclusive
that you didn’t, look at overnight guests who have an expectation
of privacy even though cannot exclude guests, which was in
Minnesota v. Olson. The fact that a third party could use it also is
not determinative. Just because others could get in it, it doesn’t
say anything about a person’s expectation that the government
ii. RULE: A person may not challenge a search of an area in which he
has no reasonable excpectation of privacy even though he has a
possesssory or ownership interest in the property seized during the
search (so this can transfer to a car, in which even though a person
k. If don’t have standing to raise the Fourth Amendment, don’t have to look
at if the search was done properly, it ends if don’t have standing.
VIII. FIRST AND FIFTH AMENDMENTS WITH THE FOURTH
a. Andersen v. Maryland- searched his law office for fraudulent documents
of sale of land. Officers found papers and convicted him on it.
DECISION: This is NOT self incrimination. They did not ask him to do
or say anything, they just read his papers. The papers were authenticated
by a writing expert. He voluntarily committed to writing before the police
search was done. A party is privileged from producing the evidence but
not from its production. So, although the 5th may protect someone from
complying with a subpoena because the production will incriminate you, a
seizure by the same material differs because the individual is NOT
required to aid in the discovery of incriminating evidence. The police
seize it, you do not give it up.
b. Zircher v. Stanford Daily- 163- search of newspaper office- 1st
amendment issues- could be searched when police are looking for
someone else- FACTS: Police obtained and executed warrant of
newspaper office to find pictures of people who injured police officers in a
demonstration. DECISION: Supreme Court held Fourth Amendment
allows issuing warrant if the person to be searched was not suspected of
the crime. Also, it does not impede on newspapers on Fourth Amendment
grounds. Part of the rationale is that person is sufficiently culpable by
having the contraband on their property, even though not the criminal. If
the third party knows contraband is on the property, he is culpable enough
to justify a warrant. Frequently third parties are not so innocent, they may
harbor drugs or contraband for other people.
IX. ANONYMOUS TIPS
a. Good things about anonymous tips:
i. Good source of information because it is an insider
ii. Preventative crime measure, police cannot be everywhere
iii. Exposes the tipster to jeopardy, but may be influenced by bias, tip
may not be fully accurate, misleading just enough
iv. Cannot cross examine to determine if bias or if accurate
b. Unreliable if have a bald and unilluminating assertion- i.e. unsupported
statement, such as “I believe”- bad for warrants as well
c. Aguilar v. Texas- for anonymous tips you need: 1.) reliable information,
2.) credible information, and 3.) basis of knowledge
d. Spinelli v. United States- court reaffirmed the three needs of a tip- must
independently judge validity of the conclusions and show that the
information is credible and reliable and police must show basis of
knowledge for the tip. If tip did not have these components, it is deemed
the tip is invalid. Until Illinois v. Gates, which gave new test.
e. Illinois v. Gates- Bloomingdale, IL police got a letter that said that the
Gates were selling drugs, it gave their address, says they do buys in FL
where woman drives car and man drives car back, and they have drugs in
their basement. ISSUE: Is this a good tip (reliable, credible, basis of
knowledge)? CLASS: This tip gives some specific information (address),
it is predictive (says they will go to Florida), and info is not privy to
general public (that drugs in their basement)- so basis of knowledge is that
they are privy to secret information. How do you know it’s credible?
Later, there is police corroboration of innocent conduct. DECISION:
Court came up with a new test, a totality of circumstances test. Still
incorporate the old Spinelli factors (still need reliability, credibility, and
basis of knowledge), but don’t need all (sufficiency of one can be
compensated by another factor), also if the tip would subject the tipster to
criminal liability. RULE: TOTALITY OF CIRCUMSTANCES TEST!
f. There are some things that do not satisfy the totality of the circumstances:
conclusory statements saying “I believe…” Need to prove probable cause.
Officer’s statement that affiant received credible information from
someone else, this is inadequate. If the person was previously reliable,
more likely for court to uphold that information.
g. Gates also reaffirms the relevance of innocent activity, which may be the
basis for a justified search, if with it there is a substantial chance for
criminal activity. If innocent activity is suspicious, it is relevant.
h. Look to see if predict future conduct
X. SEARCH WARRANTS
i. Neutral and detached (does not have to be a judge or lawyer)
1. Cannot be prosecutor
2. Cannot be issued by clerk
3. Cannot pay based on how many warrants they issue
4. Prevent magistrate shopping
ii. Capable of determining whether probable cause exists for
requested arrest or search
iii. Particular- give all descriptive facts as to the place and what
iv. Stay within scope- cannot search drawers when looking for t.v.
v. Reasonable time is allowed to execute warrant- usually 10 days,
provided probable cause continues, preferred that search done
during the daytime
vi. Knock and Announce- cannot say they never have to knock and
announce but don’t have to if likely the person will run or evidence
will be destroyed
1. Requires officer serving warrant knocks and announces
their presence before conducting a search. Not required to
serve with a warrant but it can be a factor if an officer fails
to do so. Usually officer gives notice of the search by
reading warrant to the person or allowing homeowner to
read it himself. Courts are sensitive to people having
notice. Not all searches require notice (like
eavesdropping). Knock and announce is for safety of both
officers and occupants of the home.
2. U.S. v. Banks- how long officers have to wait is a totality
of the circumstances test- what did officers suspect, what
were dangers, etc.- 15-20 second wait is permissible before
i. Can arrest person in a public place with probable cause and
without a warrant, even if practicable to secure a warrant- Watson
said Santana said that if in doorway of home it is a public place
and do not need warrant because standing in open view and can
hear things as if standing outside of house, justified arresting her
inside by hot pursuit (but if she would have stayed still it still
would have been constitutional as a public place)
ii. May NOT arrest a person in a home without a warrant, absent
exigent circumstances or valid consent- Payton- police seized plain
view evidence and a sister case three year old opened door and
police entered and arrested defendant- both unconstitutional
because entered home without a warrant
iii. May not arrest a person in another’s home without a search, and
perhaps an arrest, warrant- if a guest, then need both an arrest and
search warrant but if it’s own home need only arrest warrant but
search warrant not necessary- see Minnesota v. Carter, p.11 of this
iv. Arresting someone without a warrant wrongly only precludes the
evidence that is the fruit of that arrest (i.e. if a person was arrested
without a warrant but should have gotten warrant, the evidence in
plain view that was seized may be excluded)
v. Force with arrests
1. Deadly force is unreasonable if just preventing their escape,
even if felon- Tennessee v. Garner- here he was unarmed-
to use deadly force, need two things:
a. Probable cause to believe suspect poses a
significant threat of death or serious physical injury
to the officer or others
b. Officer reasonably believes such force is necessary
to make arrest or prevent escape (if could use
nondeadly force, must do so)
2. All issues of force should be looked at under an objectively
reasonable standard without regard to officer’s intent or
c. HOT PURSUIT:
i. Can arrest someone in the home if with hot pursuit- Santana was at
threshold and went into home and police could enter without
warrant because of hot pursuit, need a chase
ii. Olson- police can nonconsensually enter home without a warrant
in hot pursuit of felon if they have probable cause to believe that if
they do not enter:
1. Evidence will be destroyed
2. Suspect will escape
3. Harm will result to police or others
4. Gravity of harm can also be a factor- Welsh drunk driver,
and this was not a criminal offense so officers not
warranted to enter his home
d. Groh v. Ramirez-
i. FACTS: Police officer Groh is sued. Groh prepared and signed
application for warrant to search Ramirez’s ranch. The application
said the search was for grenades, launchers, etc. and Groh
supported the application with a detailed affidavit. These
documents were presented to a magistrate with a warrant form and
the magistrate signed the warrant form. Groh said that when he
arrived at the home, he orally described the items of the search in
person to Mrs. Ramirez, but she denies he did this. They explained
it to Mr. Ramirez over the phone. They searched and uncovered
no illegal weapons. They gave Mrs. Ramirez a copy of the warrant
but not a copy of the application because they did not bring the
application to the ranch. When the Ramirez requested a copy of
the warrant the officer faxed a copy of the application. The
warrant was extremely vague (where they were supposed to
describe what was to be seized, it only said a blue house and did
not mention the weapons). The application was not incorporated
anywhere in the warrant.
ii. DECISION: This was unconstitutional search because the warrant
was wholly void of describing anything to be seized. It was
1. Clerical error, or negligence, or mistake of fact
2. Oral statement clarified the basis of the search should cure
the error, orally specified the reasons for the search (though
what police said was disputed by the parties)
3. Magistrate signed the warrant
4. Good faith exception that should be applied- officers did
not overstep their bounds
1. Broad warrant, facially invalid did not particularly describe
items to be searched and seized
2. Purpose of warrant is privacy and to inform those being
searched of what they’re allowed to take, and to avoid
confrontation with the person being searched. Defects
make confrontations more likely.
3. No reference in the warrant to the application, which
Fourth Amendment expressly says has to be particular
4. Nothing requires police to show warrant, but it is a factor to
be taken into consideration, usually at least have to read the
5. Cannot rely on good faith because he was the one who
made the warrant and so he knew it was facially deficient,
clearly deficient and saying didn’t read it is not an excuse.
This was not objectively reasonable.
6. Just a glance at the warrant would indicate that the
reference to a blue house was a glaring insufficiency
7. This is not a clerical error, such as a typo- this is a clear
8. The Fourth Amendment directly says it protects the house.
9. Team leader is not immune because he should know.
v. QUALIFIED IMMUNITY ISSUE: Excused other officers, but not
the leader, Groh, leader is responsible for the quality of the
warrant. To establish Bivens action:
1. Whether the right was clearly established
a. Here, it is clearly established in the Fourth
2. Whether clear to a reasonable officer that his conduct was
a. Reasonably competent officer should know the
b. Once law is clearly established, immunity should
fail, and the law is clearly established in the
e. U.S. v. Watson- Argument in Watson is that to arrest people, they should
have a warrant, just like with searches and seizures. FACTS: Informant
told postal inspector (who are statutorily permitted to arrest people) that
Watson gave him a stolen credit card and agreed to give him more. They
met again at a restaurant and informant gave inspector a signal that
Watson had the stolen credit card.
i. COURT OF APPEALS: Held arrest was unconstitutional because
inspector failed to get an arrest warrant when he had time to do so.
Therefore, Watson’s consent to search his car was not voluntary.
ii. DECISION: Even though arrest is more intrusive than a search,
police and other statutorily permitted, are allowed to make arrest
with sufficient probable cause and do not need a warrant. Statute
allows inspector to arrest, crime was made in his presence, so he is
allowed to arrest. Police can arrest for felony or misdemeanor
f. U.S. v. Robinson
i. FACTS: Officer Jinx stopped person who he thought was not
driving with a driver’s license (because he stopped him four days
earlier). The driver stopped his car immediately and officer told
him he was arrested after driving without a license. It is conceded
officer had probable cause to arrest defendant. Upon arrest, officer
did a pat down search and in doing so, he found a cigarette
package, in which he found 14 packets of heroin. This is a search
incident to arrest, which is allowed (if proper arrest, police can
search arrestee at the time) to assure officer’s safety, but this was
expanded to explore search for contraband.
ii. DECISION: This was lawful. It is the fact of a lawful arrest which
establishes the authority to search, full search of person is a
reasonable search under the Fourth Amendment.
iii. RULE: A custodial arrest of a suspect based on probable cause is a
reasonable intrusion under the Fourth Amendment; that intrusion
being lawful, a search incident to the arrest requires no additional
justification. In the case of a lawful custodial arrest a full search of
the person is not only an exception to the warrant requirement but
is also a reasonable search under the Fourth.
g. Michigan v. Summers-
i. Police have a valid search warrant to search for narcotics in the
house. Drive up to the house and see someone leaving at the steps.
They ask the person to come back into the house. The person lets
them in and wants to leave. Officer detains them, though, while
police conduct search of the house. Narcotics are found in the
basement. Police ask the person if he owns the house. He says he
owns the house and they arrest him. There is a search incident to
the arrest, and they find more drugs on his person.
ii. DECISION: This is a proper detention, can detain persons on the
premises during a search. Court recognizes that a detention of this
sort is less intrusive on his liberty than the search itself. Detention
was not unduly long. It was his own home, so minimal
embarrassment. The search warrant itself was an objective
determination of suspicious activity. The police have interest to
protect themselves. Officers have to take command of the
situation. Detention prevents flight. Warrant provides nexus to
reasonable suspicion, enough to detain someone. Also, the
homeowner may have keys to locked areas to prevent police
having to break them open.
h. Ybarra v. Illinois-
i. In bar, the owner was selling drugs and the police came and
detained the customers and searched them as well. The issue is if
this is a proper detention.
ii. DECISION: This is not a proper detention. These people were not
suspected of doing anything wrong. They never suspected them of
doing anything and were never linked to the owner. They can do a
protective sweep but cannot search customers unless police can
establish a link between the customers and the drugs. CARTER: A
large amount of drugs is typically indicative of sales and might
provide sufficient link to allow police to detain customers, because
they have to sell them to someone. RULE: A person’s mere
propinquity to others independently suspected of criminal activity
does not without more, give rise to probable cause to search that
person. But, remember, Terry says that you can frisk someone if
reasonable suspicion that the person is armed and dangerous.
i. SEARCHES INCIDENT TO ARREST
i. RULE: Officer who makes lawful full custodial arrest may conduct
a contemporaneous warrantless search of:
1. Arrestee’s person
2. Area within arrestee’s immediate control (grabbing or
3. If arrest occurs in home, closets and other spaces
immediately adjoining place of arrest from which an attack
could be immediately launched
ii. Officer must not have probable cause to do the search but must
have probable cause to seize anything as a result.
iii. Go to cases in pre-text stops for case law
j. PRE-TEXT STOPS
i. Whren v. United States- legitimizes even pre-text stops so long as
the person being stopped violated a law- KNOW THIS CASE!!!
1. FACTS: Undercover cops were patrolling a high drug area
of D.C. in an unmarked car. Their suspicions were aroused
when they passed a Pathfinder that had youthful, black
occupants who were looking at one of their laps. The
Pathfinder sat for more than 20 seconds at the stop sign.
When the police car made a u-turn, the Pathfinder made a
quick turn without signaling. The police approached the
driver’s door, and told him he was a cop, and told the driver
to park. When he got to the Pathfinder, he saw two large
bags of cocaine in his hands.
2. DECISION: Court finds for the prosecution, saying that
can stop for a traffic violation. The officer’s motive does
not invalidate the violation. Probable cause is an objective
concept. They should have brought a Equal Protection
claim, not the Fourth. Police practices vary so cannot base
on what is subjectively reasonable.
a. Stop not based on reasonable suspicion of drug
trafficking, and that really was the reason the car
was stopped, not because of the traffic violation, so
this was a pre-text stop
b. Multitude of traffic violations is so large that nearly
everyone is guilty of traffic violation, so pre-text
stops permits police to single out whoever they
want, which is usually the powerless, not people
who have pull in the community.
c. Police get upset when you question their authority.
d. Police can bring dogs to any scene, after Caballes
e. Traffic reasons here are insufficient, because they
are easily discoverable, and police use traffic
violations to look for other violations where no
reasonable suspicion exists.
f. Racial profiling- Florida v. Wells says an inventory
search must not be used for rummaging in order to
discover incriminating evidence
g. No pretext searches per Terry v. Ohio- cannot have
arbitrary search or else minority groups will be
4. PROSECUTION (Majority agrees with this position):
a. Subjective motive for stop is irrelevant, what matter
is objective reasonableness, was there a violation,
was the stop objectively legitimate?
b. Acknowledges problem with racial profiling and
constitution prohibits selective enforcement, but the
remedy for this type of violation is the Equal
Protection clause, not the Fourth Amendment
ii. United States v. Lee- because hovered over center line for one
second and did not signal, the court upheld the stop as sufficient
suspicion the operator was driving while impaired.
iii. Knowles v. Iowa (p. 236)- Police stop a car, which is speeding.
Officer issues traffic ticket for speeding. Under the ordinance, the
officer could have arrested the person or issued a citation, but here
he just issues a citation. Then, the officer searches the car and
finds marijuana. Is the search proper?
1. DECISION: That type of search is improper. It is only
limited to traffic citation. Threat to officer’s safety when
issuing citation is much less than in an arrest situation. In
arrest situation, officer subject to continued exposure to the
suspect, which legitimatizes a search incident to arrest.
Can order the person out of the car, just based on a traffic
ticket, if the officer suspects there is a reasonable suspicion,
so can do a pat down and can do a sweep of the car, but
only if there is reasonable suspicion that they same
dangerous or suspicious.
iv. Atwater v. City of Lago Vista 208-209, 22-FACTS: Atwater was
driving her truck with her two kids. None of them were wearing
seatbelts. Officer observed the seatbelt violations and pulled
Atwater over. Officer yelled at Atwater that she was going to jail.
Called for backup and asked to see her proof of insurance, which
she did not have because her purse was stolen the day before. The
officer said he didn’t believe her. Atwater asked to take her
frightened children to a friend’s house but the officer would not
allow it. Atwater’s friend showed up and took the kids. The
officer handcuffed Atwater and placed her in the squad car and
drove her to the local police station. She was fingerprinted and
they took her mug shot. She was taken before a magistrate and let
go after paying a fine.
1. DECISION: This is a proper arrest.
a. Not objectively reasonable
i. Lack of reasonable discretion
ii. The amount of time she was detained is
unnecessary- this is a fine-only offense
iii. Waste of police resources
b. Even though police may cannot always tell
difference, they can tell that seatbelt violation is
always fine offense
d. Contained for 48 hours before hearing
e. Intrusion hinges on legitimate government interest,
potential abuse is great
a. Objective reasonable because:
i. Safety is at issue, want to prevent harm, kids
are in the front seat and you become
ii. Legislatively authorized, the legislature said
this is the type of violation that could be
arrested- basis of statute
iii. She did this before- questionable because
son was belted in
iv. Parental neglect
v. History- have long history to allow police
officers to arrest people for misdemeanors or
b. Common law analysis has reached different
conclusions, so as far as common law analysis, it is
c. Warrantless arrests for misdemeanors not
amounting to breach of peace have historically been
d. Even if you want to use standard that this is a fine-
offense, the police cannot readily tell the difference
between a fine-only and jailable offense.
v. Chimel v. California- FACTS: Police had arrest warrant to arrest
defendant for stolen coins. They arrived and the wife let them in.
They waited until he got home from work and arrested him in his
home. They did not have a search warrant. They asked to search
the home and defendant said no. But, police did it anyway, and
they had the wife open drawers; they seized items.
1. DECISION: This is an improper search. Search incident to
arrest extends only to area in immediate control or in
possession of defendant; this helps ensure officer’s safety.
They can search the person (Robinson), but they cannot
search the entire home, unless they have a search warrant.
If he had been arrested at work, then they could not have
searched his home, and this distinction does not make
2. DISSENT: Wife would have protected husband and threw
away coins. Can search if warrant impracticable. They had
vi. CHANGE CLOTHES: Police arrest someone and person is in his
bathrobe. Person wants to change clothes in bathroom and
bedroom. Can police accompany all over the home? Yes, it is
reasonable protection for the police, because they could grab a gun
out of the drawer. Can watch immediate control of arrestee.
Giacalone v. Lucas (6th Cir.).
vii. PROTECTIVE SWEEP DOCTRINE: Police make an arrest, with
an arrest warrant. Can they do a light search around the house
looking for other people? They can do a protective sweep if
there’s danger but protective sweep does not equal a full search.
Maryland v. Buie, can engage in protective sweep, but there must
be a specific suspicion by the police. RULE: Incident to an arrest
in a home, police may as a precautionary matter and without
probable cause or reasonable suspicion, look in closets and other
spaces immediately adjoining from where an attack could be
launched. There needs to be particular facts that leads to rational
inference of danger. Lasts no longer than necessary to dispel the
reasonable suspicion of danger. Chimel was not a protective
sweep because they did a full search there, they did not have a
search warrant (only an arrest warrant) so therefore, the search of
the entire house was not constitutional, can search arrestee and
area in her immediate control, but not entire house without a
warrant. RULE: Must be limited to where people may be hiding.
viii. PLAIN VIEW DOCTRINE:
1. May search without warrant and if in plain view if:
a. Observed from a lawful vantage point
b. Right of physical access to it and
c. Its nature as an object subject to seizure is
immediately apparent upon observation
2. Horton says there does not need to be inadvertence, or a
surprise, but it is a factor
3. Minnesota v. Dickerson recognized a plain touch doctrine
that said if allowed to pat down, like in a lawful frisk, and
touch something believe to be a weapon, can seize it. But,
in this case, felt a small lump, which was not a weapon, so
search should have ended, so should not have found
cocaine in pocket.
4. Arizona v. Hicks- Police officer has report that someone is
shooting in the apartment. Officer comes in looking for
shooter. Within the old apartment, there’s a new stereo.
Officer thinks stereo stolen and moves the stereo and find it
is stolen. They seize the stereo. Is this a proper search?
Arizona v. Hicks says you cannot move anything or else
Plain View Doctrine does not apply. For Plain View, first
look if officer had a right to be there, and he did here. But,
the incriminating nature of the article must be immediately
apparent. If it was immediately apparent that the
equipment was stolen, it would have been proper, but the
majority says there was no probable cause, just suspicion.
a. In Arizona v. Hicks, if it was immediately apparent
the stereo was stolen or if could’ve read numbers
without moving it, it would have been
b. There was a robbery with a gun and money. The
magistrate signed a warrant for the search of the
money only. They find no money but find a gun. Is
this search upheld? Because it was in Plain View,
they could take it. Defense argued that there is an
inadvertence argument with Plain View (Horton),
but when police looking for it anyway, it is not
inadvertent, court did not uphold.
ix. TRAILER- Wife calls police, and wants to get her things from the
trailer. On her way out, she tells police her husband has marijuana
under the couch. She cannot give consent to search the house
because it’s his, due to the protective order. One officer stays at
the house, and the other officer goes to get a warrant. This is
reasonable because they had probable cause from the wife and they
had reason to think he would destroy the marijuana if they left him.
They also used the least restrictive restraint (less restrictive than
full search) and were there for a limited period of time, only two
hours. Illinois v. McArthur (p.249).
x. PROLONGED OCCUPANCY- Police get a search warrant and
occupy a home. It took 19 hours to get the warrant. Segura v. U.S.
(p.247) says the police officers could stay so long as good faith
used to secure the premises. Because they arrested them, the
police were not violating their privacy rights because they were not
there. Possibly violates the 3rd amendment (don’t have to quarter
soliders, but you have to prove officer is a soldier).
xi. Payton v. New York- REMEMBER THIS CASE- to make arrest in
home, need arrest warrant. There is no need for an arrest warrant
to arrest someone in public (which is what W said); we also
learned that if police have any suspicions, they need an arrest
warrant to search the home (Kimmel). Can go into home to make
an arrest if someone is extremely dangerous, expect them to
escape, risk of danger to police in or outside the dwelling, or if in
pursuit of hot chase (also gravity of the crime and possibilities for
weapons should be considered). Minnesota v. Olsen (p.258) If
don’t have an arrest warrant, does arrest fall? No, only statements
made during the arrest are inadmissible, and arrest is still valid.
xii. DRUNK DRIVER PARKS- Police chasing man who they think is
drunk driver. He pulls into his home and hides in bedroom. Police
follow him inside and arrest him in his bedroom. This arrest falls
because this is not a felony. The hot pursuit doctrine is not applied
by the court because no immediate or need for pursuit. Also,
because he abandoned his car, there is little remaining threat to the
safety of the public. Welsh v. Wisconsin (p.257)
xiii. CARTER’S REVIEW
1. NEED TO KNOW BOLD CASES AND SOME NOTE
CASES (Atwater and Whren) FOR MIDTERM but also
must understand rationale in note cases. KNOW THE
FOURTH AMENDMENT- OBJECTIVE, need to identify
issues for prosecution and defense
2. Arizona v. Hicks- know name of case- Plain View
Doctrine- lifted stereo equipment, held not plain view when
lifted equipment to look for serial number- must legally be
in place to observe the evidence to use plain view- plain
view must NOT be a search
3. Horton- Plan View must be inadvertent (or accidental)-
court disagrees, it does not have to be accidental, but it is a
factor. So, if police intended to find it, could argue not in
plain view, anything that characterizes officer’s actions as
search could contest legitimacy of plain view.
4. McArthur v. Illinois- know name of case- wife tells police
husband had marijuana under the couch- officers got a
search while, while one was getting the warrant, the other
watched the husband. He stayed just by the door to make
sure he didn’t destroy evidence. Court held reasonable
detention. Officer had probable cause based on info from
wife, which was accurate, though there was a vindetta
there. Plus, it was not prolonged detention. RULE:
Temporary seizure permitted if supported by probable
cause and is designed to prevent loss of evidence while
police obtain warrant in a reasonable period of time is
a. What if wife said he has a bunch of marijuana under
his bed? One officer goes to get warrant. Other
officer stays inside. Can he follow the man to his
bedroom? Probably yes, even though it is a big
intrusion, officer will say respected his privacy as
much as possible (asked him to not go to bedroom,
but he did anyway). This is like search incident to
arrest, can follow person around if arresting them
and they want to change clothes.
5. MI v. Summers- police have a search warrant, can detain a
person coming down the front steps, after finding drugs in
the house and finding out that he owned the house they
arrested him and searched him incident to arrest and they
found drugs on him, and it was proper. Like McArthur, not
long detention, necessary for officer’s safety. RULE: A
warrant to search for contraband includes limited authority
to detain all occupants of premises to be searched while
warrant executed. (Not sure if applies to residential
searches and is limited to searches of contraband.)
a. Avoid risk occupant might leave with evidence
b. Reduce risk of bodily harm to officers
c. Facilitate search by having him open locked
6. Segura- police waited in home for 19 hours, and court held
proper, there was probable cause and 19 hours was due to
proper administrative delay, no bad faith by police. Police
not intentionally delaying getting warrant.
7. Welsh v. WI- hot pursuit for misdemeanor infraction-
person ran into his home and police ran in after him and
arrested him in his bedroom, court held forcible arrest for
misdemeanor without warrant was improper. In this case,
no threat to public safety, offense of drunk driving was a
civil infraction and not criminal offense. Court had no
problem differentiating between misdemeanors and
arrestable infractions, but the difference is that the arrest
was made in the home, this is the defining difference
between Welsh and Atwater (Atwater arrest out in public).
a. Carter points out that this rationale could have
applied in Atwater, but it did not, in Atwater they
said cannot distinguish between fine-only and
8. Olsen- court reaffirmed need to have an arrest warrant if
going into home. The person being arrested was the
getaway driver for a robbery, there were no exigent
circumstances, so should have obtained warrant.
9. Vale v. Louisiana- surveillance and arrested Vale. Then,
after arrested Vale, searched his home. Did a protective
sweep but search incident to arrest was improper. For a
search incident to arrest, the search must be
contemporaneous with the arrest, and is confined to the
immediate vicinity of the arrestee (court overturns this in
Thorton). In Vale, the arrest was outside, so for a proper
search in home incident to arrest, the arrest must take place
in the home. But, Vale was arrested outside so officers
should not have searched his home.
a. What about on porch? Probably allow search home
if on porch but Carter says always argue it if
10. Buie- protective sweep doctrine- generally accompanies an
arrest- allows officer, as a precautionary matter, does NOT
need reasonable suspicion or probable cause, to look into
closets or spaces where a person could hide to launch an
attack on an officer. Some have tried to argue protective
sweep should be applied to searches.
a. If searching a home, and they know the 1st floor is
clear, but should they be allowed to protective
sweep the second floor? Typically, no, because can
only protective sweep for officer’s safety. But, to
broaden the protective sweep, there must be some
fact or inference for officer to believe that another
area of the house needed protection. MUST BE A
CURSORY INSPECTION, WHERE A BODY
CAN HIDE. IT IS ABOUT WHOEVER MIGHT
INTRUDE ON THE ARREST, NOT ONLY
LIMITED TO SUSPECTS (SO CAN LOOK FOR
FAMILY MEMBERS THAT MIGHT TRY TO
11. Watson- police can make an arrest based on probable cause
in public places, if they saw it, they do not need a warrant.
12. Payton- to arrest someone at home, need an arrest warrant
barring exigent circumstances (person is dangerous or will
destroy evidence)- what is suppressed are statements
arrestee made in the home, but so long as proper Miranda
warnings, statements made in car are still admissible
13. Robinson- search incident to arrest- this case laid out the
proposition- suspected traffic violations, just been arrested
for not having a license, stopped and searched him.
14. Kimmel v. CA- search incident to arrest, had arrest warrant
but not search warrant, could conduct search of immediate
vicinity of arrestee upon arresting the person.
15. Atwater- proper to arrest for minor infraction- driving
without seatbelt- probable cause existed because of the
statute, also a little bit of automobile.
16. Whren- guys stopped at stop sign for a long time- allows
for pretext stops, subjective reason for officer stopping is
not important, so long as there is a true infraction (objective
basis for stop)- for race arguments, should be under equal
protection and not 4th amendment
17. Knowles v. Iowa- stopped for traffic stop, no legitimate
basis to search automobile, threat to officer’s safety is
much less than when make an arrest (where person with
officer for a long period of time)
18. CA v. Carney- automobile case- automobile exception to
warrant requirement- drugs for sex in motor home, they
conducted surveillance, and questioned person about it,
who admitted drugs for sex, without warrant or consent,
agent entered motor home and found marijuana and took
possession of motor home. Supreme Court says this is a
proper search because of automobile exception to warrant
requirement because automobiles have less expectation of
privacy than motor homes- open to plain view, consistently
subjected to government regulations and you waive many
rights due to government regulation because we are
privileged to be able to drive, mobile. Need to determine
how mobile it is by its location (like if in a trailer park),
whether the home is connected to utilities, whether on
blocks, how quickly mobile.
a. Search at scene without warrant if an automobile that officer has probable
cause to believe contains contraband, or evidence of a crime if:
i. He stops the car on the highway or
ii. The vehicle is readily capable of use on the highway, is found in a
setting to justify it is used for transportation, and is discovered
stationary in a place not regularly used for residential purposes.
b. Can also do an inventory search, away from the scene, so long as have
c. Can search a car without the owner present if the owner gave another
person control of the car.
d. Rakas said that a non-owner passenger in a car who has a reasonable
expectation of privacy in the car can contest the search.
e. Containers can be searched without a warrant, even if they belong to the
passengers, so long as probable cause. Acevedo.
f. Cannot have random stops to check for licenses and registration
(marijuana in plain view suppressed because stop checking for license was
unreasonable, also no safeguards or procedures implemented). Delaware
g. Sitz- allows DUI checkpoints because drunken driving is a serious
problem and intrusion on drivers is slight. There is data to support doing
h. City of Indianapolis v. Edmond- drug checkpoints unconstitutional. This
is different between border stops and DUI stops because it does not help
with safety and policing the border but instead aims to detect evidence of
ordinary criminal wrongdoing.
i. With automobiles, do not need warrant, but do need probable cause.
Probable cause may be in relation to one certain area of the car, like in
Avecedo (below) the probable cause was limited to the trunk where the
bag was placed. Can only search area where the probable cause is, and
once find contraband, search cannot be extended to other areas of the car.
Police cannot search any area where the contraband would not logically be
(if looking for big television, cannot look in glove compartment)
j. California v. Acevedo- bold case-ISSUE: Automobile searches are an
exception, but this issue deals with containers and luggage. There was one
line of cases Ross/Carolina that said that if probable cause existed to
search the car, that police can search the entire car. The other line of
cases, Sanders/Chadwick, said that luggage deserved even more Fourth
Amendment protection than the automobile (this is the dissent in
i. FACTS: Daza picked up from Federal Express a package the
police knew contained marijuana and took it to his apartment.
Then, Acevedo left the apartment carrying a brown bag that was
about the size of one of the packages of marijuana. He placed bag
in the trunk of his car and drove off. The police stopped him,
opened the trunk and bag, and found marijuana.
ii. DECISION: Same amount of privacy with luggage and car. Only
need probable cause, which they had here. If can search car, then
can search luggage within. Otherwise, it is easy to store and hide
contraband. Court adopts an inevitable discovery rule, which says
that if the police can do an inventory, then they would search it
iii. DISSENT: Luggage’s primary function is to protect people’s
privacy but automobile’s is for people’s travels. Just because
getting a warrant may be inconvenient, it does not mean that it is
k. Wyoming v. Houghton
i. FACTS: Searched passenger’s purse after a traffic stop and driver
admitted he used the syringe in his shirt pocket to take drugs. In
the purse the drugs and drug paraphenalia was found.
ii. PROCEDURAL HISTORY: State Supreme Court said should not
have searched purse because officer knew it did not belong to the
iii. DECISION: Can search the purse. Officers can search jackets,
purses, etc. in the car. There is no distinction based on ownership.
When there is probable cause, it is reasonable to examine packages
without needing probable cause for each one. Passengers have
lesser expectation of privacy in automobile. Passengers may be
engaged in common enterprises with the driver and have same
interest in concealment of contraband. Driver could place
contraband in passenger’s belongings.
l. New York v. Belton- bold case
i. FACTS: State policeman passed by automobile and so he pulled
him over. Officer discovered none of the four men in the car
owned the vehicle or were related to the owner. The officer
smelled marijuana and saw an envelope that said “Supergold” on
it. The officer searched the pocket of the jacket found in the back
seat and discovered cocaine. Belton, the owner of the jacket, was
ii. PROCEDURAL HISTORY: Originally found that the officer
could not search because the jacket was not in the immediate
vicinity of the arrestee.
iii. RULE: Contemporaneous to the arrest, officer may search
passenger compartment and all containers found therein, whether
the containers are open or closed. The trunk and engine
compartment fall outside this bright-line rule.
1. Can search even if occupants are handcuffed- LaFave.
2. A person must have been in the car at some time.
iv. DECISION: This is a proper search incident to an arrest. May
search the passenger compartment and also containers within the
compartment, so following this, the police can search any
containers within the car. The jacket is within the passenger’s
control before he was arrested and therefore was within the
m. Thornton v. United States- case argued, he made us print off
i. FACTS: Officer was in uniform but driving unmarked car. He first
noticed Thornton when he slowed down to avoid driving next to
him. Officer thought he knew that Thornton was an officer and so
did not want to pull next to him. Officer pulled into a side street
sand Thornton passed him. So, officer ran a run on his tags and
found the tags were not issued to the model of car Thornton was
driving. Thornton parked and got out of his car and so officer
asked him for his registration and he appeared nervous. Officer
asked Thornton if he had any weapons or narcotics. He asked if he
could pat him down and Thornton allowed it. Officer felt a bulge
in Thornton’s pocket and officer asked again if he had narcotics.
This time, Thornton admitted he did. He arrested Thornton and
put him in the back of the car. Officer then searched his vehicle
and found a gun inside.
ii. DECISION: No Fourth Amendment violation. Safety concerns the
same if in or out of car. No reason to base area of control on if in
or out of car.
1. Object to the gun be admitted into evidence
2. There is a bright-line rule in Thornton based on the contact
initiation rule, in that if officer approaches driver while in
the car, then officer can search the car, even if suspect in
squad car. But, when suspect was not originally contacted
inside the car.
3. Police made first contact with Thornton when he was
outside the car, which undermines the safety reasons that
were delineated in Belton. Issues of danger are highly
speculative because accused in handcuffs and in back of car
4. Search incident to an arrest is based on need to disarm
suspect and take him into custody. Court’s ruling is an
extension of search incident to arrest, expanding it to a full-
blown search. Only can search grab area.
5. No reason could not get a warrant before searching.
6. Search has to be reasonable to the arrest. They also argued
that they should only search if it is reasonable to believe
evidence relevant to arrest might be found in vehicle, but
this does not help the defense in this case because what was
found on person is drugs, not guns.
1. Safety and preserve evidence concern, he could have ran to
his car, after being placed in police vehicle, and obtained
his car- Carter says this is way too weak
2. Want to establish a bright-line rule- Carter says Belton was
a bright-line rule
3. Preservation of evidence, possible that the person’s friends
would come to the car and take the gun out before other
officers could come.
4. People will dart from their car so police cannot search it,
only a matter of luck he was not in the car. The rule is that
if he was inside the car, he definitely would have been
allowed to search the car.
5. Only need to be a recent occupant.
6. Inevitable discovery of this anyway in the inventory.
7. The automobile was in recent immediate control of suspect.
Open containers in immediate or recent control of suspect
8. Also, officer saw the person leave the car, so no severance
in chain of anything found within.
9. Officer could have searched the car if he had stopped
Thornton when he was closer to the car. So, officer should
not be penalized for having taken sensible precautions for
securing the suspect in the car first. Still in close proximity
to the car (didn’t pull him out of a building).
10. Reasonable suspicion because the plate does not match up.
11. Lawful arrest justifies the infringement of some privacy
XII. INVENTORY SEARCH:
a. Colorado v. Bertine- bold case
i. FACTS: Pulled over guy for DUI. Backup officer inventoried the
contents within his van, including a backpack that contained
ii. DECISION: Need formal procedures for inventory search. Can do
an inventory search based on probable cause. Inventory
procedures protect owners property while in custody of the police
to insure against claims of lost, stolen, or vandalized property, and
to guard police from danger.
b. Florida v. Wells- Inventory of locked suitcase was unlawful because
Florida patrol had no policy whatsoever regarding inventorying containers
within the automobile. Must be sufficient temporal proximity between
impoundment and inventory. Cannot be a general search for evidence.
Subjective intentions of the police officer IS RELEVANT. However,
police can get around this with established procedures settled by the
c. Lafayette- can search an arrested person as well as his personal effects
including containers as part of a routine inventory at a police station,
incident to his booking and jailing. Neither a search warrant nor probable
cause is required for an arrest inventory. Reasons (same as reasons for all
i. Reasonable to prevent theft of the arrestee’s property by inmates
and jail employees
ii. Protect police from theft claims
iii. Prevent arrestee from carrying dangerous instruments or
contraband into jail.
XIII. STOP AND FRISK:
a. Terry v. Ohio- bold case
i. FACTS: Officer in plain clothes became suspicious of a man on a
street corner in 2:30 in afternoon. Suspect walked up street, peered
into store, and walked on. Then, he started back, looked into same
store, then conferred with his companion. Other suspect repeated
this ritual, and they did this about a dozen times. They also talked
with a third man, and followed him up the street. Officer thought
they were casing a stick up so he confronted them as they were
talking. Officer identified himself and asked them for their names.
He spun Terry around and found a gun on him. Frisk of other guy
revealed gun on him as well. Frisk of last guy found nothing.
ii. DECISION: Court holds reasonable suspicion allows a pat down.
Court recognizes distinction between what is considered a stop and
what is considered an arrest. A stop is a seizure. Pat down is a
search and seizure and with it there is a high amount of personal
indignity. Protective search is only limited to search for weapons,
not to uncover crime (so it is different from search incident to
iii. Illinois v. Wardlow- 311- Big city, black area, caravan of cops
driving through. One guy takes off running and police chase him
down and find drugs on him. No Fourth Amendment violation
because there was unprovoked running, and other factors, such as
time of day, character of neighborhood, whether officer in uniform,
direction and speed of flight, number of people in the area, and if
person’s behavior was otherwise unusual.
iv. Florida v. Bostick- 299- On a bus, INS officers come and ask for
identification. You cannot leave or move. You give them
identification. They want to search luggage to search for drugs.
Person allows them to search. Problems with this scenario: 1. This
is a consent issue and 2. If oun border, police allowed to do things
like this. No seizure because he is not confined by the police but
by the bus. The question is if a reasonable person could decline
consent and they told the defendant he could leave.
v. Brown v. City of Oneota- 305- Search every black guy in town.
The court held there are no seizures by asking black people and
that pleadings failed to identify any policy that contains an express
racial classification. They can pat down only if they have reason
to believe they will find weapons and they’re in danger.
vi. Sokolow- Terry- Need reasonable suspicion- Racial profiling-
prosecution always points to Sokolow- p. 309- FACTS: Paid for
plane tickets with roll of $20’s, went to Miami, he stayed in Miami
for 48 hours when flight from Hawaii (where he came from) too 20
hours, appeared nervous, did not check his luggage, name on ticket
didn’t match his name. DECISION: Reasonable suspicion that he
was a drug courier. Just because these factors may fit a profile,
does not detract from evidentiary significance as seen by a trained
agent. Basis is if officers abused authority and violated the law,
here they did not.
vii. Hiibel v. Sixth Judicial District Court- FACTS: Sheriff’s
department received call reporting assault. Caller reported seeing
man assault woman in a red GMC truck on Grass Valley Road.
So, sheriff went to investigate. Sheriff found truck parked on side
of road with man standing outside of it and woman sitting inside.
Officer observed skid marks leading him to believe truck came to a
sudden stop. Sheriff told him he was investigating a fight and man
looked intoxicated. Officer asked if man had any i.d. Man refused
and asked why officer wanted to see it. Officer said he was
investigating and wanted to see i.d. Man became agitated and
insisted he did nothing wrong and officer explained he wanted to
know who he was. Officer asked 11 times and man did not comply
but instead taunted the officer. Officer arrested him. Nevada
statute says if asked have to identify yourself but do not have to
answer any other question.
a. There was reasonable suspicion because truck
described and on the same road, woman inside, skid
marks which shows possible argument, phone call,
so he had a duty to investigate- in Whren it was
suspicious enough that someone stopped at stop
sign for too long, so this is obviously reasonable
cause- under Terry seems reasonably sufficient
b. Duty to investigate, especially when got call
c. Balance minimal intrusion against government
interest in officer’s investigation of crimes
d. Just giving name is not incriminating
e. This is an automobile case and we know there is a
lower expectation of privacy and this is an
exception to warrant requirement
f. Thornton held reasonable to conduct search where
driver near to car, no right to be anonymous under
reasonable suspicious circumstances
g. Terry says can pat down and stop and frisk and
detain for safety of officer and duty extends for
safety of others (any suspicions of criminal activity
leads to second prong of Terry, officer had to
h. Caballes- can bring dogs
a. Nevada statute on identification is vague- weak
argument per Carter
b. Officer did not have reasonable suspicion- this is
the Fourth Amendment issue- Carter thinks there’s
no way to say there is not reasonable suspicion
c. If officer has reasonable suspicion, person does not
have to reveal his name- officer has a right to ask
for identity but person does not have to respond
d. Statute violates 5th amendment because don’t have
to identify yourself- it is incriminating and used for
prosecution- give name is testimonial
e. Illinois v. Wardlow says unless probable cause,
cannot take person into custody to ascertain
f. This is more in line with Ohio v. Robinette, when
officer makes stop there is no indication of criminal
activity before the officer so once officer made
inquiries and sees no criminal activity is occurring,
it should end right there.
g. Wardlow- if say officer cannot search, raises
XIV. CONSENT SEARCHES
a. Schneckloth v. Bustamonte-
i. FACTS: Officers stop car containing six men who he observed that
the license plate and headlight were burnt out. The driver could
not produce a license. The passenger said his brother owned the
car and the officers asked if they could search. Passenger said yes.
Driver helped with search. Stolen checks were found.
ii. ISSUE: Voluntary consent?
iii. DECISION: Police do not have to inform person that he does not
have to consent (knowing and intelligent only applies to fair trial
rights and the Fourth protects privacy, not trial rights). Consent
given must not be coerced, by explicit or implicit means. The
court should take account of subtle coercive police tactics, as well
as possible vulnerable subjective state of person who consents. In
this case there was no evidence of inherently coercive tactics,
either from police questioning or environment (have a totality of
the circumstances). When subject not in custody and state
attempts to justify search on consent, state has to prove consent
was voluntarily given. Miranda inapplicable here because
questioning is not interrogation.
iv. DEFENSE CLAIMS: Whenever consent or waiver, such a waiver
should be voluntarily and knowingly made. The person should be
given information that they have the right to refuse.
v. CLASS: Just cop asking if can search is NOT coercive per Bostick,
b. Bumper v. N.C.- Police comes into house, say to lady, we have a search
warrant, can we search? Lady says okay. Is this permissible consent?
Bumper v. N.C. says search cannot be justified on basis of consent when
officer just says has warrant because this is lawful coercion. The officers
cannot search beyond the warrant.
c. No consent with intoxicated or emotional trauma person
d. Permissible for undercover cop to get consent even though person would
not have given consent if knew true identity
i. Lopez- agent recorded bribe offers in concealed wire. DECISION:
Constitutional because government agent did not use device to
listen to conversations otherwise would not have heard. Agent was
there with defendant’s assent and it was carried out by that agent.
CONCUR: Only protects agent’s reliability.
ii. Lewis- federal narcotics agent was invited into petitioner’s home
where unlawful narcotics transaction took place. DECISION:
Constitutional. Petitioner invited him inside for purpose of selling
narcotics and petitioner meant for him to see, hear, and take
everything he did.
iii. Hoffa- wanted to bribe jurors and government informer found out.
DECISION: Constitutional because Fourth doesn’t protect
misplaced beliefs that someone he voluntarily confides will not
iv. Must give inmate notice if you are listening to his conversations
with attorney. But there is reasonable suspicion to believe
communications with attorneys are used to facilitate acts of
violence or terrorism. Don’t reveal info to prosecutors. This is
constitutional because there is a law enforcement concern.
e. Cannot say the blood test is for a different reason
f. Can say we want to see your gun to see if it matches robbery even though
really want to prove felon possesses gun because no evidence defendant
was assured his production of gun would only be used for robbery
g. Jimeno says can search containers in car but cannot break open locked
XV. THIRD PARTY CONSENT
a. Who may give third party consent? All guided by a rule of exclusivity, be
exclusive more than words, but if lock or something, make clear not to
enter my room:
i. Husband and wives- can give consent, but this is not a per se rule,
but in context of a more intimate relationship, burden on
government is lighter. Other spouse can rebut presumption of
consent by showing spouse denied access to particular area
searched- maybe not enough if you tell wife cannot go there, but
still can enter; but is enough if you’re only one who has a key.
1. Instructions- they knew her husband had instructed her to
not consent and they were not entitled to reply upon her
consent as justification.
ii. Parent child- common authority. Parent can consent. Child may
consent, look at if they could admit visitors. If adult child, more
manifestation to search the house. Not consent if it is a small
child, because child cannot give consent.
iii. Employer-employee- Cannot consent to desk search if desk
secured by locked door- based on reasonableness of privacy
expectation. But, factory owner could consent to search of
workbench because not exclusively that employee’s space.
Employee’s consent depends on how much authority the employee
had- average employee cannot consent but manager can waive
iv. Landlord-tenant- Landlord and hotel cannot consent. Joint tenant
may consent because common control.
1. U.S. v. Matlock- warrantless search is constitutionally valid
if police obtain consent from one who possesses common
authority over property searched. Burden of proof on govt.
to prove common authority.
2. Stoner v. California- hotel clerk cannot give authority to
search hotel room
v. Duffel bag- Rawls- said could use duffel bag, while arresting
Rawls, he said they could look in duffel bag where seized
petitioner’s clothing. Since Rawls was joint user, could consent to
search and consent to search all compartments.
vi. Cab decal says owner in program allowing police to stop cab to
check on safety of driver- decal symbolized owner’s consent to
stop, driver has authority to consent to stop, and by passenger
entering, he assumes risk he may be stopped along the way.
vii. Other factors to consider:
1. If there is known antagonism between parties, less likely to
2. Verbal instructions given- I told him not to come in here.
3. Exclusive control by defendant.
b. Illinois v. Rodriguez- p. 341- FACTS: Woman claims she had consent to
enter apartment, even though she had keys, she did not live there. ISSUE:
Other parties can consent to allow police to search your material.
Emphasis is on common authority for the premises or materials.
i. DECISION: Common authority rests on mutual use of property
which is seen through joint access or control. Burden of proof
rests on the state. Court points to doctrine of apparent authority,
and says this doctrine is insufficient to protect a person’s 4th
Amendment rights. For example, in Stoner, police could not rely
on consent of night clerk to search a hotel room. There was no
common authority here. Search needs to be reasonable. There was
no joint access or control to the apartment. RULE: Use objectively
reasonable person standard to see if reasonable to think 3rd party
had authority over premises. DISSENT: Apparent consent
doctrine still leaves some room for police to argue reasonable but
mistaken belief. Third parties cannot waive a person’s
Constitutional rights, like 5th amendment rights. Attorney cannot
waive a person’s 5th amendment rights, person has to do it
himself, so same should be the same for 4th amendment. If police
want to search, get a search warrant. CLASS: State courts could
go along with dissent in state decisions.
c. U.S. v. Drayton- Supreme Court decision in class
i. FACTS: Drayton and Brown on bus. They were going from
Florida to Michigan. Bus stopped to refuel. Driver got off and
allowed police to get on and search for drugs and weapons.
Officers in plain clothes but had badges. One officer knelt on
driver seat and faced rear of bus. Another officer went to the back
and looked forward. Neither men were obstructed the exits. The
last officer went and asked people about their travel plans and
looked at their luggage. He asked Brown and Drayton if they had
a bad, which they consented to searching and found nothing. Then
asked if he could search their persons because they were wearing
baggy clothes and they were warm but it was too hot outside to be
wearing those clothes. He asked to pat them down and found
drugs on their thighs.
a. Bostick- seizure does not occur so long as
reasonable person feels free to disregard police and
go about business, no reasonable suspicion is
required, when officers have no basis for suspecting
individual, they may ask questions as long as do not
say answer is required. Police officers explicitly
told Bostick he could refuse to consent. In this
case, the police did not inform of right to refuse to
b. Delgado- INS agents in factory. Several of them
at doors and others walk through and ask them
questions. Court said the workers should feel free
to leave. The workers may not have been free to
leave their worksite but this is not because of the
officers but because of the workers obligations to
their employers. Agents conduct would not make
the workers think that they would be detained if
they refused to answer. Police may question but
person does not have to answer.
ii. PROCEDURAL HISTORY: Court of appeals apply per se doctrine
for bus encounters, adopting Bostick rationale which says consent
is only proper if person is told can consent.
iii. DECISION: This was constitutional. Supreme Court does not like
per se rules with Fourth Amendment analysis- need to use totality
of circumstances approach. No seizure occurs so long as
reasonable person feels free to leave and go about his business.
Can approach anyone and can ask questions for no reason. Bus
rides confined because of bus, not because of police. There was no
seizure, because they had no reason to think they had to answer.
There was no coercion; if on street would have been constitutional
without a question. Just because police had gun, it is not
consequential because not drawn. They were not blocking the
exists. Few people refuse because they know it helps their safety.
Drayton was especially on notice because they found drugs on
Brown first, so Drayton should have said no. The consent was
voluntary. They asked before they searched them, which shows it
was a questions to which they could have said no. Police do not
have to inform of right to say no. Terry stop justified because
reasonable suspicion existed with clothes, etc. Also, could argue
Terry stop justified because reasonable suspicion existed with
clothes, drugs found on his buddy, etc. Also, could argue search
incident to arrest, even with accomplice because pair reboarded
together, sat together, dressed in baggy clothes, and both claimed
ownership of green luggage so there’s linkage.
iv. RULE: Police do not have to inform people of their right to refuse
consent. If have a state case, make sure that state acquired the
Supreme Court holding that do not have to inform that can refuse
consent. No seizure if reasonable person would feel free to go on
about his business.
v. DISSENT: No need for extreme measures; we need extreme
measures if on plane but no equal threat with bus. Driver gave
authority over the bus to the police. Police position is
intimidating- pinned the passengers in and knew they were being
watched. Passengers likely think the bus will not leave until the
officers are satisfied. There is an imbalance of immediate power.
Bus scene set as obligatory participation, you are more suspicious
if you don’t go along
-Vehicle searches- Thornton, wanted to give clear per se rule to police. So, courts were
willing to give per se rule there.
d. U.S. v. Arvizu-
i. FACTS: This is not quite a border case, which is a special need.
Nothing criminal in the van. Road censor was triggered and
officer thought person was trying to circumvent the check (also
because the timing coincided with shift change). This is a roving
border patrol. Usually drug traffickers use minivans and travel
area with drugs. Driver slowed dramatically when he saw the cops
and he didn’t look at the policeman and did appeared stiff.
Children waived in abnormal mechanical fashion. Dirt road was
not good for minivan to drive on and no picnic area around. Court
of Appeals said many of the factors were innocent and did not
amount to reasonable suspicion.
ii. DECISION: Court brought in Terry and says only need reasonable
suspicion. Use totality of circumstances to decide if reasonable
suspicion. Court of Appeals isolated each factor, but need to look
at them all together. It is important to remember where you are (if
it is a high drug trafficking area or not). Allows officer to draw on
his own experiences to make inferences from information, which
may allude an untrained person. So, police receive special
standing in noting whether criminal activity may be afoot. Just
because the activity is possibly innocent, it does not mean no
reasonable suspicion exists.
iii. CLASS: With automobile cases, you can bring in automobile
precedent and then bring in Terry as well.
iv. DISSENT: No need for extreme measures; we need extreme
measures if on plane but no equal threat with bus. Driver gave
authority over the bus to the police. Police position is
intimidating- pinned the passengers in and knew they were being
watched. Passengers likely think the bus will not leave until the
officers are satisfied.
1. Vehicle searches- Thornton, wanted to give clear per se
rule to police. So, courts were willing to give per se rule
XVI. ADMINISTRATIVE SEARCHES
a. Only has to be reasonable, do not need individual probable cause.
b. Safety inspections is a special need- fire, house, NEED: 1. Doubt that any
other canvassing technique would achieve acceptable results and 2. That
the contemplated inspections would involve a relatively limited invasion
of the urban citizen’s privacy.
c. For inspection of business activity, Burger says need:
i. Administrative regulatory scheme must advance a substantial
interest such as to protect health and safety of workers.
ii. Warrantless inspections must be necessary to further regulatory
iii. Ordinance that permits warrantless inspection must provide and
adequate substitute for the warrant, such as rules that limit the
discretion of the inspectors, regarding the time, place, and scope of
XVII. BORDER SEARCHES:
a. Ramsey- people may be stopped at the border and they and their
belongings may be searched without a warrant and in absence of
individualized suspicion of wrongdoing, pursuant to the nation to protect
itself from entry of dangerous people or objects into the nation.
b. Border searches- profiling is permissible
i. Reasonable because coming to U.S. from outside
ii. Royer- investigative method must be least intrusive means
available, be short
c. Roving border patrol- Almeida Sanchez v. U.S.- stopped 25 miles from
border with no probable cause. This search violated Fourth, applied
ordinary car principles, and because no result of specified regulations,
unconstitutional. Also, another case said roving border patrol cannot stop
and detain, even just for questioning, a car without reasonable suspicion of
illegal presence in the country. Examples of reasonable suspicion: too
many people in vehicle, passengers acting strangely, information of recent
illegal border crossings, etc.
d. United States v. Martinez Fuerte- can stop vehicle at fixed checkpoints
and briefly detain for questioning even if do not have individualized
reasonable suspicion. Two reasons treat differently than roving:
i. Less police discretion
ii. People can see others ahead are being stopped so less subjective
XVIII. Vehicle checkpoints
a. No block for license questions
b. Michigan Department of State Police v. Sitz- DUI checkpoint
constitutional- intrusion slight, program limited officers’ discretion
because stop every vehicle, established guidelines, serious drunken driving
problem, reasonable alternative available for dealing with the problem
c. Edmunds- Drug stops unconstitutional because it is a general search for
crime, not a special need case.
d. Lidster- case looked up
i. FACTS: Unknown motorist struck and killed 70 year old bicyclist.
Motorist drove off. One week later, local police set up highway
checkpoint to receive more info about the case from the public.
Police cars partially blocked the lane, which forced drivers to slow.
Officer would stop car for 10-15 seconds and ask if knew anything.
Then would hand a flyer asking for information. Lidster drove
minivan to checkpoint. As he approached, his van swerved, nearly
hitting an officer. Officer smelled alcohol on Lidster’s breath. So,
he was administered sobriety test and arrested for DUI.
1. Problem with this checkpoint is that there is no immediate
safety concern like with DUI checkpoints
2. Edmunds problem is that to general search for evidence of
crime is unconstitutional. Trying to search for evidence of
a prior crime.
3. There were alternate means besides a checkpoint- less
restrictive ways to get message across
4. It’s a week later, after the incident
5. People keep schedules and likely he would come back at
6. Even though allow pretext stops, as long as a reasonable
basis for it- this is possibly pretext
7. This is still evidence gathering
8. Watch out, if allow this then checkpoints become the
1. Not like Edmunds because that was a general search for
drugs and this is looking for evidence of specific crime.
2. Canvassing for information, seeking information- handing
out flyers, so this is not looking for evidence of crime (not
looking for dent in a car)
3. Not looking for evidence that would incriminate the driver
XIX. Special Needs Searches
a. Def = Exception to warrant requirement, that applies when special needs,
beyond the normal need for law enforcement, make the warrant and/or
probable cause requirement impracticable. Includes border searches nad
administrative searches. Started with New Jersey v. T.L.O. (in this case
girls caught smoking cigarettes, one denied so purse searched and found
cigarettes and papers for marijuana, further search found the marijuana)-
said public school teachers or administrators can search students if two
requirements are met:
i. Reasonable grounds- not necessarily probable cause- for
suspecting evidence will turn up that student has or is violating the
ii. Once initiated, the search is not excessively intrusive in the light of
the age and sex of the student and nature of infraction. Scope
reasonably related to objectives of search.
b. O’Connor v. Ortega- reasonableness balancing test to determine the scope
of an employee’s Fourth rights in regard to searches and seizures
conducted by employer.
c. Drug tests: need following factors:
i. Employee working in job already pervasively regulated.
ii. Close relationship between job responsibilities and employer’s
concern about drug or alcohol use.
iii. Regulations authorizing testing remove most or all of the
employer’s discretion in determining which employees will be
tested and under what circumstances
iv. Evidence presented that a system based on an individualized
system is impracticable or would frustrate the non-law-
enforcement purpose of the testing.
v. Care is taken to protect the dignitary interest of employees in the
specimen collection process.
d. Drug test cases that were unconstitutional: Chandler v. Miller- cannot
require candidates for state office to pass drug test because not enough
substantial need to override privacy interests. Ferguson v. City of
Charleston invalidated procedures to test nonconsensually pregnant
women who could be endangering their unborn children because in these
cases they did not tell the mothers what they were being tested for.
e. Can have suspicionless drug tests for individuals being promoted to
positions directly involving illegal drugs or to positions with firearms.
f. Can have random student athletes drug tested because students have less
privacy where teams subject you to higher regulations, school’s
responsibility for children means students have lesser expectation of
privacy, urine tests have little privacy invasion, immediate crisis because
drugs were prevalent in school (fits Skinner or Von Raab), athletes role
FOURTH AMENDMENT CHECKLIST:
1. Does D have standing to raise Fourth challenge to the
specific item in question? If no, evidence is admissible. If,
yes, go to 2.
2. Did police activity in question implicate a person, house,
paper, or effect? Almost always, answer is yes.
3. Did police activity constitute a search or seizure? Need at
least one for Fourth to apply.
4. Was the search or seizure reasonable? This tells us whether
Fourth was violated.
a. Did police have adequate grounds to conduct search
or seizure? Usually need probable cause, some only
require reasonable suspicion or even less.
b. Did police act on basis of a search warrant and / or
arrest warrant? If no, then ask if the police have a
valid reason for failing to obtain a warrant.
i. If yes, ask:
1. Did police obtain warrant in proper
2. Was the party issuing the warrant
neutral and detached magistrate?
3. Was warrant in proper form, does it
satisfy particularity requirement?
4. Did police execute warrant properly?
5. If search or seizure found to be unreasonable, probably
a. Did police conduct seiarch on basis of a warrant
later discovered to be invalid? If yes, implicates
good faith- had to act objectively reasonable, and if
so, evidence is admissible.
b. If E.R. applies, is there evidence that its fruit of
poisonous tree? If yes, then look to inevitable
discovery, attenuated connection doctrine, and
independent source doctrine.
Special Needs Cases: summarized on 326-28, also read Illinois v. Lidster, 124 S. Ct. 885
(2004)- has a good summary of special needs cases as well.
XX. PERMISSIBLE EXTENT OF TEMPORARY SEIZURE
a. Length of detention depends on suspicion developed
b. Florida v. Royer- airport, questioned, luggage and airline ticket taken and
he was asked to consent, which he did after 15 minutes. DECISION:
Investigative detention must be short and least intrusive. They should
NOT have brought him into interrogation room. Could have done faster
with dogs. DISSENT: Consent so no need for least restrictive means.
c. U.S. v. Sharpe- 20 minute stop was not too long. Examine whether police
diligently pursued means of investigation that was likely to confirm or
dispel suspicions quickly. If police acting in a swiftly developing
situation, do not second guess them. Don’t just look to see if alternative
available but if police acted unreasonably in failing to recognize or pursue
it. Delay here was due to the defendant’s actions so not unreasonable.
d. Kolender v. Lawson- can ask for identification but cannot compel an
answer under criminal offense and must allow person to leave after a
reasonably brief period unless have acquired probable cause.
e. After check license and registration and write ticket, cannot extend stop
for purpose of questioning about drugs or seeking consent to search
f. Questioning on unrelated matter absent such suspicion as unobjectionable
provided it is accomplished within the permissible time span of the traffic
g. U.S. v. Werking- once give back papers, free to leave, so if he stays and
responds to questions he chose to engage in a consensual encounter.
h. Robinette- stopped for traffic violation, wrote out warning, gave back his
license and registration, answered more questions and got consent to
search car and found drugs. DECISION: Do not have to warn to have a
i. Can keep mail for one day if sufficient probable cause.
j. United States v. Place- took his bags at airport but allowed defendant to
leave. Used drug dogs and found narcotics. Kept bags from Friday-
Monday. DECISION: Balance according to Terry, govt interest was high.
But, it completely disabled his travel plans and did not allow him to leave,
effectively restraining him. The length of the detention of the luggage was
too long, so not reasonable without probable cause. Also, police did not
diligently pursue, because they could have had the dogs all lined up
k. Adams v. Williams- informant said man in a car had gun in waistband and
drugs. So, after police told him to step out of the car and he instead rolled
down his window, the police constitutionally reached into the car and
removed his gun from his waistband.
l. Minnesota v. Dickerson- unconstitutional to take crack out of person’s
pocket who was frisked because knew it was not a weapon so overstepped
bounds of Terry.
m. Michigan v. Long- man swerved into ditch. Police observed knife on floor
of car and searched within and found marijuana in armrest. DECISION:
Constitutional because reasonable belief he could reenter his vehicle and
after seeing knife, could look in other areas where weapons could be,
including armrest. Danger to officer high with roadside stops.
n. Can fingerprint on scene if reasonable to believe doing so will establish or
negate suspect’s connection with that crime
i. Cannot fingerprint multiple times with no magistrate approval and
individuals had no probable cause to arrest. (Fingerprinted 24
black males for rape investigation.)
ii. Held constitutional to fingerprint all males in eighth grade class
because class ring found by victim- narrow procedures
o. Subpoenas to grand jury is NOT a seizure and people do not have
reasonable expectation of privacy in the tone of their voice so can
subpoena for voice example.
FRUIT CONTINUED: CARTER IN CLASS:
-Beyond E.R., which excludes immediate evidence. Fruits excludes derivative
evidence, additional evidence resulting from improper violation. Leading case is Wong
Sun v. U.S. on page 765. FACTS: Six federal narcotics agents broke into Toy’s laundry,
chased him into living quarters where wife and child were sleeping. Toy said Ye was
selling narcotics, went to Ye’s place and he surrendered narcotics to them and implicated
Toy. DECISION: Both Toy’s declaration and narcotics taken from Ye were excluded as
Fruits of agents unlawful entry into bedroom and bedroom arrest. Traditionally E.R. only
excludes physical tangible materials, but verbal evidence is still fruit of illegality.
Exploitation of illegality, attenuation. Confession well after violation may be admissible
based on attenuation. Wong Sun gave confession well after the arrest so could be
admissible. He was unlawfully arrested but he was released and came back to make
statement that time between arrest and statement was so attenuated as to dissipate the
-Inevitable discovery can still get in if would have been legitimately discovered
by other means. Theoretical, but police have to submit proofs of it, cannot just assert it.
Search for body and police find body after improper questioning. But would have gotten
it anyway when there was a search party that was canvassing area where body was.
Williams v. Nix.
-Independent source- guilt can be established by source unconnected by tainted
violation. Example, if there was consent from joint occupant of the house.
5th AMENDMENT ISSUES:
-4th violations only suppress tangible items. Notion was rejected in Wong Sun.
4th should suppress confession but court is considering the issue. Renewed Miranda can
dissipate the taint. Currently look to attenuation principle if confession after there was
-Identification proceeding is admissible- even though violation of the Fourth in
arresting him. Independent evidence. Independent source purges taint of police
illegality. Three elements:
1. Victim present at trial to testify.
2. Victim has knowledge and is able to identify from observation of defendant
3. Defendant is present so victim can observe him and can see if like what he did
-Payton violation, confession outside, constitutional. Difference between
statements made by defendant in the home and statements made on way to police
station. Statements made inside are suppressed, outside are not suppressed.
Payton is a technical violation but police have probable cause for arrest. Warrant
requirement is imposed to protect the home. Anything in home is excluded, not in
home is admissible.
-Segura- evidence obtained by a second search warrant is admissible and might
cure improper first search- 19 hours in house and did Kimmel search (searched entire
house but shouldn’t have)- evidence first found after warrant was admissible because
independent source for warrant under which evidence was seized- independent source for
the warrant. Murray- marijuana in warehouse, observed, got warrant without telling
magistrate about observations, and upheld later search. CARTER LOVES THIS
Board of Education of Pottawatomie County v. Earls
-FACTS: This is a 1983 action based on Fourth violation. Drug testing policy
was implemented by school board and said all students who participate in athletics must
consent to drug testing. The policy has only been applied to active teams, as opposed to
academic teams. Must agree to test if reasonable suspicion and test only shows if using
-These are more general students
-Have a higher expectation of privacy
-No problem exists, and for special needs case you need a problem- per
Chandler v. Miller
-School is responsible
-This is above just going to school, they represent the school
-Students have lesser privacy interest
-Degree of intrusion is as small as possible- only test for certain things,
confidential and not turned over to law enforcement
-Have upheld things that are purely preventative. Like in Von Rob with
drug testing of customs officials on purely preventative basis. Prevent
health issues (inspect restaurants).