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Outline Part dui phoenix arizona

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					I.    INTRO:
      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
                  Rule.
             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
         STATES:
               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
                  privacy.




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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
            for all.
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
            experiment.
      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
            of evidence.



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             x. Police do not have time and training to grasp rulings on Fourth
                 Amendment.
            xi. Other options
                     1. Suspend the cops- maybe suspend if do it habitually.
                     2. Give the police a choice- either fine or exclude the
                         evidence
                     3. Can you incorporate civil procedure in criminal law? This
                         happens when forfeit things if involved in criminal
                         proceeding.
                     4. Incentive program to give money to police that don’t
                         violate the 4th.
                     5. Evaluate costs and benefits of suppressing reliable
                         evidence.
                     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
                         requirements.
                     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:




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      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
                  cause.
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.




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            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
                rule.
                    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
                         others.
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



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   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-
        i. PROSECUTION:
               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
                   public
       ii. DEFENSE:
               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
                   economic rubric.
               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
                   prosecute you.
               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.
      iii. DECISION:
               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



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                   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
   minutes.
        i. PROSECUTION
               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
                   home.
               2. Objective prong- there is a reasonable expectation of
                   privacy- fundamental expectation of privacy is with the
                   home
               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
           a search.




                                  7
          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)




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               2. Seizure that is lawful at its inception can violate the Fourth
                   if its manner of execution unreasonably expands to other
                   areas
               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
                   Amendment protections.
               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
                   certainty.
               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



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     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
     considered curtilage
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
     bills
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.
o.   PHONES
          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



                                  10
     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.
iii. STATE:
         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
             this argument.
         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
             in.
         6. He didn’t say keep this conversation private
         7. Daughter knew her mother had previously listened in to
             conversations
         8. People use the speaker phone all of the time and they don’t
             ask for permission.
         9. Only want a parental exception
iv. DEFENSE:



                           11
              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
                 judiciary.
              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
                          actor,
                      c. Any advice, direction, and level of participation
                          given by the government.
p. GUESTS
      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



                               12
     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).
iii. DEFENSE:
         1. Can invite in anyone, for business or pleasure, into your
             home. Guests are given high priority when invited into a
             home.
         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
                     the defendant
         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.
iv. PROSECUTION:



                          13
                     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)
VI.    SEIZURE
       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
          meaningfully interfere
       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
                   determinative
VII.   STANDING:
       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




                                       14
     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
             will.
         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



                                  15
                    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.
        l.
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
                    information
        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.



                                         16
     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
     a. Requirements:
              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
                 they’re searching
            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



                                       17
                  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
                  forcible entry.
b. Arrests
        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
           outline
      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
                   motive
c. HOT PURSUIT:




                                  18
       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
          facially invalid.
     iii. PROSECUTION:
               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
     iv. DEFENSE
               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



                                 19
                   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
                   warrant aloud
               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
                   deficiency.
               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
                           Amendment
               2. Whether clear to a reasonable officer that his conduct was
                   unlawful
                       a. Reasonably competent officer should know the
                           Fourth Amendment
                       b. Once law is clearly established, immunity should
                           fail, and the law is clearly established in the
                           Constitution
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
           without warrant.
f. U.S. v. Robinson



                                 20
       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



                                 21
          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
                  lunging area)
              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.
              3. DEFENSE:
                      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




                                22
                 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
                      selectively searched
         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



                           23
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.
    2. DEFENSE:
            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
            c. Embarrassment
            d. Contained for 48 hours before hearing
            e. Intrusion hinges on legitimate government interest,
                potential abuse is great
    3. PROSECUTION:
            a. Objective reasonable because:
                     i. Safety is at issue, want to prevent harm, kids
                        are in the front seat and you become
                        distracted
                    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
                        slight felonies
            b. Common law analysis has reached different
                conclusions, so as far as common law analysis, it is
                a wash.
            c. Warrantless arrests for misdemeanors not
                amounting to breach of peace have historically been
                ruled unconstitutional.




                      24
                    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
                sense.
            2. DISSENT: Wife would have protected husband and threw
                away coins. Can search if warrant impracticable. They had
                probable cause
 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



                              25
                  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
                      constitutional.
                  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).




                          26
   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



                            27
   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
   permissible.
       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.)
   REASONS:
       a. Avoid risk occupant might leave with evidence
       b. Reduce risk of bodily harm to officers
       c. Facilitate search by having him open locked
            containers
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).




                 28
        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
            jailable offense.
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
            defense.
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
            PREVENT ARREST).
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




                 29
                         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.
XI.   AUTOMOBILES
      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
         probable cause.
      c. Can search a car without the owner present if the owner gave another
         person control of the car.



                                       30
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
   v. Prouse.
g. Sitz- allows DUI checkpoints because drunken driving is a serious
   problem and intrusion on drivers is slight. There is data to support doing
   this.
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
   Acevedo).
         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
            anyway.
       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
            not necessary.
k. Wyoming v. Houghton



                                31
       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
          driver.
     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
          indicted.
      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
          immediate control.
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



                                32
     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.
iii. DEFENSE:
         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
             already.
         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.
iv. PROSECUTION:
         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.



                           33
                       7. The automobile was in recent immediate control of suspect.
                            Open containers in immediate or recent control of suspect
                            are searchable.
                       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
                            matters.
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
                   cocaine.
               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
           precinct.
        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
           inventory searches):
                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



                                          34
       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
       arrest).
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.



                            35
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.
    1. PROSECUTION:
            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
                 protect woman)
            h. Caballes- can bring dogs
    2. DEFENSE:
            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




                      36
                            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
                                person’s i.d.
                            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
                                suspicion
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,
                Rodriguez, etc.
     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



                                       37
              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
                 reveal it.
            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
         luggage
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.



                                      38
            Employee’s consent depends on how much authority the employee
            had- average employee cannot consent but manager can waive
            employer’s right.
       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
                    allow consent.
                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



                                 39
  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.
         1. PRECEDENT:
                  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
                     consent.
                  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



                          40
                      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.

3-14-05
           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



                                           41
                  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
                           there.
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
                  scheme.
             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
                  the search.
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



                                        42
          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
                   intrusion
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.
               ii. DEFENSE:
                        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
                           same time
                        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
                           protocol.
              iii. PROSECUTION:
                        1. Not like Edmunds because that was a general search for
                           drugs and this is looking for evidence of specific crime.



                                        43
                    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
                law and
            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.
        Von Raab.
     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



                                        44
              privacy, urine tests have little privacy invasion, immediate crisis because
              drugs were prevalent in school (fits Skinner or Von Raab), athletes role
              models

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
                                            manner?
                                       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
                   inadmissible, unless:
                       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.


2-25-05
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.




                                           45
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
         stop.
      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
         voluntary consent.
      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
         already.
      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.




                                       46
           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.


3-16-05
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
taint.
        -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
4th violation.




                                            47
         -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
STUFF!!!!

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
drugs.
       -HELD: Constitutional.
       -DEFENSE:
               -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
               -Edmunds violation
       -GOVERNMENT:
               -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).




                                            48
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