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Course: Criminal Procedure Fall 2003
School: unknown
Year: 2003
Professor: unknown
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Criminal Procedure





Course will primarily involve the 4th, 5th, and 6th Amendments

Facts:  appeal by the state after D was convicted and D claims double jeopardy under the 14th amendment.
Holding:  5th amendment applies only to the federal govt, not to the states.  When the Bills of Rights were passed, only applied to the federal govt.  The only amendment that applies to the states is the 14th amendment.

Facts:  When officers broke into D apartment and witnessed him swallowing capsules, they had his stomach pumped without his permission and drugs were found.
Holding:  Action by officers were unconstitutional because they failed to give the D proper due process and their actions constituted making the witness testify against himself which is unconstitutional.

Total incorporation or not?
-  No.  Rejected by the courts very early.  Due Process clause can step in and make the amendments applicable.
-  Due Process? How to figure out of the original framers intended for the bill of rights to be applicable to the states other than the 14th amendment.  In the 5th amendment, the amendment specifies due process which would make a great argument to show that there was no intent to incorporate the amendments.  However, the intent of the framers is hard to figure out.  Judges should not be able to wander an import their own views, however, this is difficult to control.

Hypo1:  police use eavesdropping device to overhear private conversations after they have probable cause regarding illegal activity.  No warrant was obtained.  Hypo is based on Irving v. CA which found no due process violation on the basis that there was no brutality and no physical violation.  Frankfurther, found it indistinguishable from Rochin.
-  Based on Rochin, how should the court decide on whether their activity violates the due process clause?  Shock the conscience standard can be used as in Rochin.  Cannot use the amendments because Rochin didn't agree with incorporation.  The police activity shocks the conscience because the police invaded the man's castle.
-  Notes: the point of this hypo is to illustrate why it is hard to decide without the application of the 4th amendment.  You may be able to argue that the right is fundamental and thus the activity shocks the conscious.
-  Under incorporation, you can use the 4th amendment to invalidate the police action.  This was an unreasonable search and seizure.

Hypo2:  Car accident, police take a blood sample without consent of an unconscious driver after the accident. Cased based on : Bravehauk v. Abraham in which majority held no due process violation.  Justice Black:  violation of 5th amendment.
-  Most would agree that the activity would "shock the conscious" as an invasion of the body.  Also, under the 5th amendment, you cannot be compelled to be a witness against himself.  By taking the blood, this compels the D to be a witness against himself.

Hypo3:  the man refused to take the blood test and the police hold him down and take his blood.  Schmever v. CA:  court found an unlawful search under 4th amendment on the basis that the facts were more like Rochin.

Griswold v. Conn
- court found a "penumbra" of privacy rights that invalidated the law banning the sale and use of contraceptives.
-  the majority found that the restriction was over broad and unnecessary and the right to privacy is found just like in other cases like for the 1st amendment, freedom and associate and assembly.

Bork Law review article:  there is no way to base the law unless the Constitution has written words which allow the judges to decide.  Otherwise, you have the judge's opinions to base  the law on.  However, even in the law review article, the author agrees that judges can decide cases based on "obvious implication" in the Constitution not just words within the Constitution.

- all rights in except : grand jury indictment clause and the excessive bail clause.

Duncan v. Louisiana
Facts:  D was convicted of a misdemeanor for which the maximum punishment was 2 years imprisonment and a $300 fine.  D sought trial by jury, and the motion was denied.
Issue:  Do the 6th and 14th Amendments secure the right to a jury trial in state criminal prosecutions where a sentence as long as 2 years may be imposed?
Rule:  Because the trial by jury in criminal cases is fundamental to the American scheme of justice, the 14th amendment guarantees a right of jury trial in all criminal cases which if they were to be trial in federal court would come within the 6th Amendment's guarantee.  In ALL CRIMINAL CASES:  no right to a jury trial unless it is a big crime with extensive penalties and jail time. In Baldwin v. NY:  less than 6 months no jury is required.
Dissent:  The states have always had the responsibility for operating and controlling the process of criminal justice and adapting it to their particular circumstances and needs.  The due process clause only requires that those procedures be fundamentally fair in all respects.  I disagree with the total incorporation view of the 14th amendment.  The real issue in this case was whether the D was denied any element of fundamental procedural fairness.  In this case, I do not think so.
- govt. should be hands off unless the situation "shocks the conscience"
- under statute the D could have gotten 2 years, instead of the 2 months that he actually got.

3a:  Williams v FL
-  White concluded for the majority that 6 jurors are ok and is permissible.  History is unclear on the framer's intent.  Has to be large enough for group deliberation and large enough for the reluctance of people influencing the jury, and has to be large enough for fair cross section of community to be represented.
- Bork:  12 is an "obvious implication" and therefore the new law for only 6 jurors is unconstitutional.

3b: Morgan vs. Apoodcka
- 8 justices : 6th amendment means the exact same thing as in the state system.  The provision has be incorporated.  However, they can't agree to what it means.  4 votes for unanimous and 4 for nonunamious verdicts.  In federal system, they mean unanimity and in state court, you don't have to have unamious verdicts.
-  States can pass a law that allows for a non-unamious verdict.***

3c:  Ballou v. GA
-  Can the amount be 5 jurors?  NO.  Their main point:  the reason why we allowed 6, that it saves the courts undue expenses and for better judicial economy, and there is not enough here for them to change the rule.  The substance of the jury trial must be preserved.  Federal courts requirements and state court requirements are different.

NEW HYPO:  6 jurors and only 5 verdict needed to have to convict.  Is this legal?  The supreme court said no way.

4th Amendment Protection:  no unreasonable search and seizure.  The courts have construed this right that the police must have probable cause in order to act without a warrant.
-  need a search warrant backed by probable cause authorized by a neutral magistrate.
-  an arrest in public is not necesary for a search warrant.

Problems with informants
1)  informant lying - vengeful motive
2)  set up to (ie plant drugs)
3)  misinformation (guessing)*
4)  rumors are not enough:  we don't want people searched on the rumor.

 - Informant requirments by the court in Draper:  accurate, detailed description and gave reliable info in the past.  Gave good information on what will happen in the future.

Draper v. US
Facts:  Based on the informant's tip, D was arested for concealing and transporting narcotics.  Under the 1956 Narcotic Control Act, the police used the informant's information to find and arrest D at which time the police searched the D and found heroin and a syringe without a warrant. On appeal, D argued 2 points:  1) the info given to the police was hearsay and because hearsay is not legally admissible in a criminal trail, the police could not legally consider the evidence and 2) the info should be held to be insufficient to show probable cause and reasonable grounds to believe that D had violated or was violating the narcotic laws and to justify his arrest without a warrant.
Issue:  Whether knowledge of the related facts and circumstances gave the police probable cause within the meaning of the 4th amendment and reasonable grounds  within the meaning of the Narcotic Control Act to believe that D had committed or was committing a violation of the narcotic laws.
Holding:  The arrest and search was lawful on the basis that hearsay evidence can be used to show probable cause and the info given to the police was personally verified.
Rule:  When probable cause exists = Where the facts and circumstances within the officer's knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable causation in the belief that an offense has been or is being committed.

-  Probable cause is based on probability:  "more likely than not."

Spinelli v.US
Facts:  After an FBI search uncovered evidence of bookmaking activities, Spinelli was charged with various gambling offenses.  The probable cause for the search warrant was based on an informant's tip and the FBI's corroboration.
Issue:  Is an informant's tip that has been corroborated by independent sources sufficient basis for finding of probable cause for the issuance of a seach warrant.
Holding:  The conviction must be overturned on the basis that the police failed to meet the 2 prong test in Anguilar.  This court states a new rule for determining probable cause:  "Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Anguilar's tests without independent corroboration?"
Rule:  To establish probable cause for issuance of a search warrant based on an informant's tip, the submitted affidavit must contain 2 things:  1) a statement by the police crediting the informant's or the tip's reliability, 2) the underlying circumstances from which the informant drew her conclusion.  This requirement can be summed up by saying that:  the veracity of the information must be proved and verified as was as the basis of knowledge on which the informant gives the information must be established.


2 part test!
Veracity:  reliableness?  corroboration? sworn statement? have they made a statement against their own interests?
Basis of knowledge:  sufficient details?  personal knowledge?

4a:  question based on US v. Harris which upheld the search warrant:  allows for a low threshold under the 2 part test.  Something is missing under the requirement for veracity, but the court says that this is sufficient.
4b:  warrant based on anonymous tip: question based on ________.  The anonymous tip did predict future conduct and some reliable information that looks suspicious.  Professor doesn't like the warrant because it stepped over the line.

Wilson v. Arkansas
Facts:  After drug sales to a govt informant, the police obtained warrants for the search of the D home and to arrest them.  When the police officers arrived, they opened an unlocked screen door and entered the residence after which they then identified themselves as police officers and stated that they had a warrant.  During the search they seized several drugs, a gun and ammunition as well as witnessing the D flushing marijuana down the toilet.  At trial, D tried to suppress the evidence on various grounds including the fact that the officers had failed to "knock and announce" before entering her home.  After her suppression motion was denied, the D was convicted and the Arkansas SC affirmed the conviction and rejected D argument that the 4th amendment required the officers to knock and announce prior to entering the residence.
Holding:  Based on the common law and the fact that most state constitutions have a "knock and announce rule" and  because the framer's intent is in little doubt that they thought that the method of an officer's entry into the dwelling was among the factors to be considered in assessing the reasonableness of a search or seizure,  the court held that "in some circumstances an officer's unannounced entry into a home might be unreasonable under the 4th amendment.  However, not every entry must be preceded by an announcement.  Some exceptions would be: 1) when the announcement would yield a threat of physical violence, 2) when a prisoner escapes the police, and 3) when police officers have reason to believe that evidence would likely be destroyed if advance notice were given.
Rule:  Law enforcement has to establish the reasonableness of an unannounced entry if they failed to "knock and announce" as required by the 4th amendment.

Richards v. Wisconsin
Facts:  After a police investigation that concluded that Richards was one of several individuals dealing drugs out of hotel rooms in Madison, the police requested a warrant that would have given advance authorization for a no knock entry, but the magistrate issued the warrant but explicitly deleted the request for a no knock entry.  When the officers arrived at the hotel room, the police officers knocked on the defendants door and stated that he was a maintenance man.  After the D opened the door and saw the uniform officer standing behind the plain clothes police officer, the D quickly slammed the door closed and the police officers testified that they identified themselves as police as they were kicking down the door.  After the police finally broke into the room, the officers caught Richards trying to escape through the window and found drugs and cash hidden in plastic bags above the bathroom tiles.  At trial, the D made a motion to suppress the evidence found on the basis that the officers failed to "knock and announce" as required by the 4th amendment.  The trial court denied the motion and the supreme court affirmed on the basis of a rule laid out in State v. Stevans which held that "when police have a search warrant, supported by probable cause, to search a residence for evidence of delivery of drugs or evidence of possession with intent to deliver drugs, they necessarily have reasonable cause to believe exigent circumstances exist to justify a no knock entry."  Wisconsin based this rule in State v. Stevans on the basis of surveys, articles and other judicial opinions to assert a blanket rule that states that exigent circumstances are always present in felony drug cases.
Holding:  the blanket rule in Wisconsin is problematic for two reasons: 1) the exception contains a considerable over generalization because not every drug investigation will pose these risks to a substantial degree.  Also the asserted govt. interests in preserving evidence and maintaining safety may not outweigh the individual privacy interests intruded upon by a no knock entry.  If a per se exception would be allowed for each category of criminal investigation that included a considerable risk of danger to officers or destruction of evidence, the knock and announce element of the 4th amendment reasonable ness requirement would be meaningless. It is the duty of the court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock and announce rule.
Rule:  In order to justify a no knock entry, the police must have a reasonable suspicion that knocking and announcing their presence under the particular circumstances, would be dangerous or futile, or that would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.
Reasonableness of search and seizure regarding the limitations set forth by the 4th amendment is determined in a "case by case" basis and the police must make a showing of the reasonableness in the circumstances.
Class notes:  In real life, there exists a presumption that in felony drug cases there is  a no knock rule: but this presumption has not been authored by a court or announced by any legislature.  (it is just the way real things works in life)
It is going to be a very rare case that someone will win a knock and announce failure.  Even in this case, the D did not win an overturn of his conviction.  The policy rationale is that the police must be in a sitatuion to have to justify themselves in what they do as a check on their authority and this is what the 4th amendment is all about.

Illinois v. Gates
Facts:  anonymous letter tips of the police about a couple.  When the police investigate the information in the letter, they find that the letter accurately portrays the couple moving drugs from Florida to Chicago and obtain a search warrant on that basis.
Issue:  Whether the defendant's rights under the 4th and 14th amendment were violated by the search of their car and house?  NO
Holding:  The lower courts were wrong to suppress the evidence based on the 2 part test laid out in Anguilar and Spinelli cases.  Although the informant's "veracity," "reliability," and "basis of knowledge" are all highly relevant in determining probable cause, we do not agree with the lower courts that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case.  They should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is probable cause to believe that evidence is located in a particular place.  When considering the informant's veracity, reliability, and his basis of knowledge, these factors are better understood as relevant considerations in the "totality of the circumstances."
Reasoning:  to do otherwise would encouage the police to resort to warrantless searches, it impedes enforcement to have such a rigid rule, anonymose tips are important to use and solve many crimes.
Rule:  the two prong test (veracity [proved by corroboration] and basis of knowledge) established by the decisions in Aguilar and Spinelli are abandoned.  The task of the issuing magistrate is simple to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.  The duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.  However, on the affadavit, the magistrate must rely more than bare bones facts and other people's conclusions to base the warrant. For example, the corroboration in Draper is always a good idea.
- Probable cause - requires that there be a "fair probability" according to this case!
- side note:  in Gates the court said that "the letter" was enough for probable cause. No absolute certainty required.

Commonwealth v. Upton (Mass. case)
Facts:  Under the Mass. constitution, the legislature manufactured a test based on the 2 prong test in Anguiler -Spinelli opinion. The court however, in this case, applied the new "totality of the circumstances" test given by the Supreme Court in Gates.  When the Defendant's motion to suppress was denied, he appealed on the basis that under article 14 of the Mass. Constitution that the stricker standard of probable cause is the correct rule for determining his motion to suppress.
Holding:  D is correct, the law in the State of Mass. allows us to consider probable cause under the 2 prong test.  Under this application, the D's motion to suppress is granted regarding to the evidence seized at the motor home, however, there was other evidence to support the defendant's conviction on at lease some of the charges against him.  Remanded.
Rule:  states do not have to apply the Totality of the circumstances test to probable cause situations if their own laws provide greater protection for the people in their state.  States cannot take more rights away, but they may protect Defendants by putting into place more strict requirements like the 2 part test.  If the states provide more protection, the cases cannot even go to the supreme court because it becomes a state constitutional decision.
-  affidavit was passed out in class.


When dealing with these problems:  this is the analysis
1)  is the informant's veracity showed
 - ie. person was reliable in the past
 - ie. corroboration of future behavior (good predictor)
2)  is the basis of knowledge showed?
 - ie. personal knowledge
 - ie. details info sufficiently to conclude that he is an insider
3)  totality of the circumstances?
 -  Gates rule:  "fair probability?"
-  under Gates:  State v. Jacumen for problem 6:  the state says that the information is insufficient under Angluis - Spinellie.

The power to arrest and search incident to lawful arrest.

Chimel v. California
Facts:  D was lawfully arrested in his home after arriving back from work after his wife let the police inside after the police had an arrest warrant.  After the D was placed under arrest, the police searched the entire house over the D’s objections.
Issue:  Is a warrantless search incident to a lawful arrest reasonable when the scope of the search exceeds the area within the D’s immediate control?
Holding:  The search here went far beyond the D’s person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him.  There was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area.  The scope of the search was therefore, unreasonable under the 4th and 14th amendments and the D’s conviction is reversed.
Rule:  The scope of a warrantless search incident to a lawful arrest extends to the person arrested and the area into which they might reach in order to grab a weapon or destroy evidentiary items.
Dissent:  When there is probable cause to search, and exigent circumstances make it impracticable to obtain a search warrant, a warrantless search may be reasonable.  An arrest itself often creates a situation where it is unreasonable to require the police to obtain a search warrant.
Notes on case:  when you have no search warrant:  needed when a person is arrested because of safety concerns relating to the fact that the police need to search for weapons, etc.  and because of a need to prevent the destruction of evidence.  Police can search the area which is in the "immediate control" of the person being searched. (in which person can gain possession of a weapon or destroy evidence.) This is the test for when there is no search warrant.  If there is a warrant, then the test if probable cause.  This is the rule:  at the moment of arrest: take a snapshot.  Anywhere that person could have gotten a weapon, the police may search that area.  The area is a circle around the person and the scope is not extremely narrow.  In a small room, then just about everything would be let in.  But, not in other rooms, etc.

United States v. Watson
Facts:  A postal inspector, relying on an informant’s tip, arrested D for possessing stolen credit cards and searched the D’s car after consent was obtained.  The officer made the arrest without a warrant, though he had time to secure one.
Issue:  Is a law enforcement officer permitted to make a warrantless arrest if he had adequate opportunity to get a warrant?  YES
Rule:  Under the 4th amendment, warrantless arrests need only be based on probable cause, not exigent circumstances.  In public, they need probable cause, but no Warrant

Payton v. New York
Facts:  Two cases were consolidated here that raise the same question in that in both situations the police had probable cause to arrest the defendants, but in both cases the police had no search or arrest warrants, even though the police broke into their homes and obtained evidence located in plain view.
Issue:  Do police need a warrant to enter a suspect’s home to make a routine arrest?  YES
Rule:  The 4th amendment requires that police obtain an arrest warrant before entering a suspect’s home to make a routine felony arrest.
Dissent:  If the police have reasonable grounds to believe a suspect committed a felony and is present in the house, they may, after knocking and announcing, make a warrantless arrest in the suspect’s home.
Class Notes:  in the home, the police need an arrest warrant.  Once in the home, they get a limited search of the person and the area of immediate control of the D.

Problem 7.  Page 180.
Rule:  you can only seize evidence that is reasonably to be found per the warrant.  For example, if you are going to a house on an arrest warrant, the police cannot search the kitchen cabinets that couldn't hold a person.
::::  Steagald v. US is the case.  Look at page 90

Review of rules from last class:
General rule before:  search or seizure:  need probable cause + warrant
-  in public, no warrant is required, just probable cause (only protected interest is the liberty interest)
-  in exigency circumstances, no probable cause needed
-  in home, you need more: magistrate must be there and the police must have an arrest warrant.  (privacy and liberty interests are protected)
- third party's home:  need a search warrant (arrest warrant alone is not enough)

Terry v. Ohio
Facts:  Police officer watches 2 men involved in suspicious activity in front of a store.  After about 10 to 12 minutes of watching, the police officer approached the men, identified himself as a police officer, and asked for their names.  When the men “mumbled something,” the police officer grabbed Terry and spun him around so that he could pat down the outside of the Terry’s clothing.  In doing so, the officer felt a pistol, but was unable to remove the gun.  Afterwards, the officer ordered all three men to go into the store and face the wall with their hands raised.  The police officer also discovered another revolver in the outer pocket of Chilton’s overcoat, but no weapons were found on the third man.  At trial, the D’s motion to suppress the evidence obtained on a “concealed weapons” charge was denied and the appeals court and the Supreme Court of Ohio affirmed the lower courts ruling.
Issue:  Whether it is always unreasonable for a police officer to seize a person and subject him to a limited search for weapons unless there is probable cause for arrest?  NO
Holding:  Where a police officer observed unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigation this behavior he identified himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the  encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.  Such a search is a reasonable search under the 4th amendment, and any weapons seized may be properly be introduced into evidence.
Rules:  The issue is whether the search and seizure was “reasonable” under the circumstances.   The court view this is a narrow exception in which the police officer has the authority to permit a reasonable search for weapons for the protection of himself where they have reason to believe that they are dealing with someone who is armed and dangerous.  The officer does not need probable cause, only whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.  This determination cannot be based on the officer’s suspicion or a hunch, but to “specific reasonable inferences which he is entitled to draw from the facts in light of his experience.
-  from this case we learn that an officer can stop and frisk a person if they have "reasonable suspicion." If the do not have a "reasonable suspicion," then they cannot stop and frisk a person.

Is this a search and seizure?
Did a person have a warrant and probable cause? (or probable cause and exigency)
If not, then did the person have "reasonable suspicion" to do a limited stop and frisk?  (Determine by balancing the interests test between the govt interests and the person's liberty and privacy interests like:  public safety, crime prevention, police officer safety, etc)
Side Notes:
- do not have to apply the "warrant clause," only the reasonable clause.
-  We know from Gates: probable cause is less than 50%, and reasonable suspicion is probably even lower.

Problem 8a:
- US v. Burrell:  no seizure until he says that "its registered" and then the police officer has probable cause to seach the person.  Search and seizure was ok here.

Problem 8b:
-  Commonwealth v. Pegrim: says that there is no seizure until they frisk.  This court found that the frisk was illegal - there were no facts that would show that the person was dangerous here.  (pretty iffy here)

Brown v. Texas
Facts:  Brown was arrested for, and convicted of, violating a state law when he refused to identify himself, though police did not have a reasonable suspicion that he was involved in a crime.
Issue:  Absent a reasonable suspicion which is based on specific and objective facts that an individual is involved in misconduct, may the police seize a person for the refusal to identify himself?  NO
Rule:  4th amendment requires that a seizure be based on specific, objective facts indicating that society’s legitimate interests require the seizure of a particular individual.  Because the police had no reasonable suspicion in this case, the balance between the public interest and the appellant’s right of personal security and privacy tilts in favor of freedom from the police interference.

US v. Hensley
Facts:  A wanted flyer issued by an Ohio police dept. stated that the D was wanted for the investigation of an armed robbery (not an arrest warrant).  The defendant’s car was recognized by an officer in Kentucky who was familiar with the flyer.  Without knowing whether there was an actual warrant out for the D’s arrest, the officer stopped the defendant’s car and searched the interior.  Upon finding weapons in the car, the D was arrested and convicted for possession of firearms.  The conviction was reversed on the grounds that the evidence was obtained through an illegal arrest because the police lacked reasonable suspicion to justify an investigative stop.
Issue:  Does the 4th amendment prohibit police officers from detaining a person to investigate a past crime, in the absence of an arrest warrant?
Rule:  If police have a reasonable suspicion, based on specific and articulable facts, that a person  was involved in or is wanted in connection with a completed felony, a stop made to investigate that suspicion is not unconstitutional.  If a flyer or bulletin has been issued based on such facts, then reliance on that flyer justifies investigation.  The ability make this type of investigation, in the absence of probable cause, promotes the strong governmental interest in solving crimes and bringing offenders to justice.


Minnesota v. Dickerson
Facts:  Dickerson was subjected to a pat down search for weapons by a police officer.  The officer felt a lump in Dickerson’s jacket, and after the officer further probed the lump with his fingers he discovered it to be crack cocaine.  Dickerson was subsequently convicted for possession of a controlled substance.  Dickerson argued that the crack cocaine could not be admitted into evidence because it was illegally obtained.
Issue:  Can contraband detected through the sense of touching during a lawful pat down search be admitted into evidence?  NO
Rule:  Contraband detected through an authorized pat down search can be admitted into evidence can be admitted only if the contraband’s incriminating character is immediately identifiable.  An officer cannot probe further to determine if the item is contraband.
Notes: plain feel is ok when it is immediately apparent that there is contraband because the officer obtains probable cause for an extensive search- but the officer cannot do an extensive search to discover the contraband (like rolling the bag to determine whether the bag was contraband).  In this case, the court rejected the admission of this evidence because the contraband was found after too extensive of search was made.  Per se the searches are illegal with a few narrow exceptions.  Purpose of limited search is for protection only, not to search for contraband by rolling things on the person.

Maryland v. Buie
Facts:  The police had a warrant to arrest Buie for armed robbery.  They entered his home, found him in his basement, and arrested him.  Then some officers swept the basement to make sure no one else was hiding there.  During the sweep, an officer found, in plain view, a red jogging suit that fit the description of what the suspect wore in the robbery.  The jogging suit was admitted into evidence over Buie’s objections, and he was convicted. The Court of Appeals reversed, based on the fact that the officer’s lacked probable cause that danger existed to warrant the search.
Issue:  When police officers have a warrant to arrest a suspect in his home, may they conduct a warrantless protective sweep of the premises?  YES
Rule:  As incident to arrest, police officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.  Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.  A full search of the premises may not be conducted, only a cursory inspection of those spaces where a person may be found.
--- look at and compare case to Chimel (do search for D's immediate control)
--- this case gives the police officers the entire room and the closets that are attached)  The police officers can search the rest of the house of they have a reasonable suspicion that there are confederates lingering in the house.

US v. Robinson
Facts:  After D was arrested for driving without a license, the officer, who had probable cause to arrest D but did not have a search warrant, searched the D anyway and found heroin in a cigarette package.
Issue:  Is a search warrant ever required before an officer is permitted to make a full search incident to a lawful arrest of the arrestee?  NO
Rule:   In the case of a lawful custodial arrest, a full search of the person is an exception to the warrant requirement and is reasonable under the 4th amendment.
- you can frisk for weapons and Chimel says you can do a full search for weapons and to avoid destruction of evidence.  However, in this case, there was danger but no evidence needed to protect because of the crime that the person was charged with.  BUT, because the person was arrested, a full search can be completed.
 -  safety considerations are enough to justify the frisk.
-  new rationale:  no additional justification is needed when there is a custodial arrest of a suspect based on probable cause is a reasonable intrusion under the 4th amendment.  A search that is lawful at its inception, can still be unreasonable if it exceeds the scope that is justified by the circumstances.  However, by this new rationale, the police officer can open everything up on the basis of "safety" considerations.

Exam notes:  you have to ask at what point the 4th amendment becomes applicable, or in other words, at what point was their a search and seizure of the person to make the 4th amendment applicable.  After finding 4th amendment activity, you then have to classify it by calling it a (terry pat, reasonable suspicion, search incident to lawful arrest, etc) and then decide whether the search and seizure was justified.

US v. Edwards
Facts:  10 hours after D was arrested for attempting to break into a post office, the police searched his clothing without a warrant.  The search conducted by the police found that paint chips matched the samples that had been taken from the broken window at the post office.
Issue:  May police conduct a warrantless search of a suspect’s clothing while the suspect is in detention after being arrested?  YES
Rule:  Police may conduct a warrantless search of a suspect as long as the search is within a reasonable time of the lawful arrest.  With or without probable cause, the authorities are entitled at the police station not only to search the arrestee’s clothing and the effects of his possession, but also to take it from him and keep it in official custody.  A dark and stormy night exception - the requirement that the search be undertaken "contemporaneously" is now eliminated when there are reasons why the search is taken later - like buying the prisoner clothing.
Dissent:  Police cannot engage in warrantless searches of unlimited geographic and temporal scope.  The question is whether the police had ample opportunity to obtain a warrant so that a magistrate could make that decision.
-  watch for application of "chadwick" that we have not read yet where footlocker was later search and the court said such search was illegal.


US v. Mendenhall
Facts:  A 22 year old black woman got off a plane in Detroit after flying from Los Angeles.  2 DEA agents approached the woman on the basis that her conduct “appeared to be characteristic of someone who was unlawfully carrying narcotics.”  When the agents asked for her identification and airline ticket, they noticed that the ticket was issued to another person who the woman said that she just “felt like using that name.”  In addition, the woman said she had been in California only two days.  After that, when the DEA agent specifically identified himself as a federal narcotics agent, the woman become quite shaken, extremely nervous, and had a hard time speaking.  The agents then asked the woman to go to their office for further questions and upon arriving at the office, the woman consented to a search of her person and handbag by both the searching officer and the 2 agents.  When a search was conducted, 2 small packages of heroin was found and the woman was convicted after her motion to suppress the evidence was denied.  The court of appeals reversed.
Rules:  4th amendment requires that searches and seizures be founded upon an “objective justification,” including those seizures that involve only a brief detention short of a traditional arrest.  These minor stops and questions are justifiable only if they “reasonably suspected” the person of committing some wrongdoing.  A search and seizure has been committed when an officer “by means of physical force or show of authority,” has in some way restrained the liberty of the citizen and the test is whether a “reasonable person” would have believed that they were free to leave under the totality of the circumstances.
Holding:  No seizure occurred here because there was nothing in the record to suggest that the woman had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way.  In addition, the totality of the circumstances in this case was adequate to support the trial court’s finding that the woman voluntarily consented to accompany the officers to the DEA office.
Notes:  reasonable "innocent" person standard is used to determine if the person thought that they were free to go away from the police when asked questions.  Does not matter that the person who is carrying drugs that would not consent to the search.
- Officer, "Am I free to go?" is all you have to ask in these situations so that that the 4th amendment after that time becomes applicable.

Florida v. Royer
Facts:  After narcotics officers noticed D acting suspiciously, they detained D and questioned him.  D was brought into a separate room, where he consented to a search of his luggage which revealed marijuana.
Issue:  Is a suspect’s consent to a search valid if the suspect was illegally detained at the time?  NO
Rule:  A suspect’s consent to a search is not valid if it is given as a result of an illegal detention.  When the police officers  identified themselves, told the D that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver’s license and without indicating in any way that he was free to depart, the D was effectively seized for the purposes of the 4th amendment and these circumstances surely amount to a show of official authority such that a reasonable person would have believed that he was not free to leave.  As a practical matter, when the D was made to go to the police room, he was in all intense and purposes under arrest.  Conviction overturned.
-  NOTES:  The officers had reasonable suspicion, but they went of the line and went directly to "arrest" without probable cause.  "They should have had the dog sniff the bags." according to the professor.
-  RULE:  an investigative detention must be temporary and last no longer than necessary to effectuate the purpose of the stop.


Florida v. Bostick
Facts:  Florida police had a policy of boarding public buses and asking certain passengers for permission to search their bags without having any articulable suspicion regarding the type of bus chosen to board or the passengers who they asked questions.  Bostick was questioned on the bus in this manner and drugs were found in his bags.  Bostick then claim that he did not know that he had the right to refuse consent to the search.  The Florida courts adopted a per se rule that bus searched were seizures in violation of the 4th amendment since passengers were confined and did not feel they had the option to leave because of the nature of the passengers on a bus.
Issue:  Are consented searches on public buses violative of the 4th amendment?  NO
Rule:  To determine whether a police encounter is an unconstitutional seizure, the court must consider all the circumstances surrounding the encounter and decide whether the police conduct would have communicated to a reasonable person that the person was free to leave or to refuse the officer’s request.  This rule applies equally to encounters in airports, buses, or on the street; there is no per se rule regarding buses.
-  Even when officers have no reasonable suspicion, they may generally ask questions of the individual and ask to complete a search of the person as long as “they do not convey a message that compliance with their requests are required.”
-  The test:  “Whether a reasonable person would feel free to decline the officer’s requests or otherwise terminate the encounter.”
- NOTES:  the court here did not determine if a seizure occurred and remanded it back to the lower court on remand.
- on remand, the lower court said that "no seizure occurred." and had no guts to back up their previous per se rule.
-  the appropriate inquiry is "whether  a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.

California v. Hodari
Facts:  Police spotted a group of youths acting suspiciously.  As the car approached, the youths panicked and ran away and the police gave chase.  One police officer caught up to Hodari, who before he could be caught by the police officer, threw away a rock of crack cocaine and he ran away.  An officer finally tackled him and arrested him and later used the crack as evidence of drug dealing.  Hodari moved to suppress the evidence, claiming it was obtained through an unreasonable seizure.  Although the evidence was thrown away prior to the arrest, Hodari claimed that the “show of authority” of the police chase constituted a seizure because he did not feel as though he was not free to leave.
Issue:  Whether at the time Hodari dropped the drugs, was he “seized” within the meaning of the 4th amendment?  NO
Holding:  To constitute a seizure, either physical force must be exerted over the suspect or, absent force, there must be a submission to the assertion of authority.  An escaping suspect who fails to halt when chased has not been “seized” until physically taken into custody.  Any relinquishment of evidence prior to the seizure is voluntary and not subject to the 4th amendment restrictions.  He was not seized until he was tackled and the cocaine abandoned while he was running was not the fruit of the seizure.  WE reverse and remand.
- according to Scalia here, when the officer "lays his hands" on the suspect, the seizure has occurred.  Must be in "physical possession" of the person - just not chasing.

Mode of Analysis for exam:
(top and bottom go together)
a) casual encounter - terry seizure - arrest
b) no 4th amendment activity and no justification required by police - Mendall Hall test: reasonable person felt free to leave - reasonable suspicion  and Royer test: - probable cause (warrant)

Hayes v. Florida
Facts:  Police suspected that D had committed a series of burglary-rapes.  Although they had little specific information to tie D to the crimes, they took him to the police station to be fingerprinted.  After determining that the D’s prints had matched those at the scene of one of the crimes, the police arrested him.
Issue:  Can a suspect be brought to the police station for fingerprinting without his consent and without probable cause or prior judicial authorization?  NO
Rule:  Transportation to and investigative detention at the police station without probable cause or judicial authorization together violate the 4th amendment.  Such a detainment, although brief, is a seizure that is sufficiently like an arrest to invoke the traditional rule that arrests may be constitutionally be made only on probable cause.  The police may be permitted, however, to briefly detain a person in the field for the purposes of fingerprinting if they have a reasonable suspicion that the suspect committed the crime.
- RULE:  When you take the person to the station, they are under arrest!"

Dunaway v. New York
Facts:  The D made incriminating statements after police officers took him into custody and interrogated him.  At the time of the detention, police did not have a warrant or probable cause.
Issue:  Are police permitted to seize a suspect and interrogate him without probable cause, but reasonable suspicion?  NO
Holding:  While police may stop and frisk a suspect without probable cause, the detention and interrogation of a person is similar to an arrest and thus requires probable cause.

US v. Sharpe
Facts:  After D was suspected of drug trafficking, he was stopped and detained for 20 minutes while police apprehended another suspect.
Issue:  How long may a person reasonably suspected of criminal activity be detained before the detention become a de factor arrest, as opposed to an investigative stop?
Rule:  The reasonableness of an investigative stop’s duration is measured against the police’s diligence in pursuing a means of investigation likely to confirm or dispel their suspicion quickly, during which time it is necessary to detain a suspect - not by the time elapsed.  The time does not have to be the least intrusive, but whether the police acted unreasonably in failing to recognize or pursue other means.
- why is this not beyond the scope of Royer?  The police did not hold the person unnecessarily, it was reasonably quick, the delay was also as a result of the evasive actions of the D.   The court really blamed the D for the time elapsed.
NOTES:  In order to search the car, you need probable cause!  A dog can give you probable cause.

Probable cause = "fair probability"''

Rule in Terry:  "whether the officer's action was reasonably justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place."

Delaware v. Prouse
Facts:  Police officer made the D stop his car for the only purpose of checking the driver’s license and registration.  In doing so, the police officer smelled marihuana smoke and he seized the drugs in plain view.
Issue:  It is an unreasonable search and seizure under the 4th and 14th amendments to stop a car for the purpose of checking the driving license of the operator and the registration of the car, where there is nether probable cause to believe nor reasonable suspicion that the car is being driven contrary to the laws of the state?  YES
Holding:  A stop of a car is a seizure under the 4th amendment.  The permissibility of a particular law enforcement practice is judged by “balancing its intrusion on the individual’s 4th amendment interests against its promotion of legitimate governmental interests.  The intrusion itself, therefore, must be based on some “objective standard.”  Here, checkpoint stops are ok, but because the state has no vital interest to promote and since we reject their safety argument, by just pulling over cars and asking for their license and registration they are committing an unreasonable search and seizure according to the 4th amendment.  However, the questioning of all oncoming traffic at roadblock-type stops are one possible ok alternative.
- Basic rule = police officer's can't randomly stop people for no reason.
-  Here, the govt. loses the "balancing test" of reasonableness.  This is a great case to cite for that proposition.
-Notes:  sobriety checks have been upheld by the Supreme Court.

Alabama v. White
Facts:  Police received an anonymous tip the led the police to follow and then stop the D’s car.  After the police stopped the car, the D consented to a search of the car which revealed drugs.  The trial court denied D’s suppression motion, but the court of appeals and the state supreme court reversed holding that the stop was violative of the 4th amendment.
Issue:  Whether an anonymous tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop?  YES
Rule:  Totality of circumstances test must be used to show whether the police have some minimal level of objective justification for making the stop.  In this case, the tip had been sufficiently corroborated to furnish the necessary “reasonable suspicion” required for the officers to make the investigatory stop.
- professor thinks that the police officer's just used a "hunch" which is not what is needed (reasonable suspicion is required for a stop.)
- an anonymous tip without any corroboration is not enough - because the police had more here, the totality of the circumstances allows for there to be enough reasonable suspicion here.  Here, the facts by themselves of the D's conduct was not suspicious.  The phone call here add the sufficient reason for the police to stop.

Whren v. US
Facts:  Plainclothes police officers in an unmarked car noticed the Ds in a truck with temporary license plates in a high drug area.  The police officer’s suspicions were aroused when they noticed that the drivers were young, the when the police approached that the driver looked down into the lap of the passenger, that the truck remained stopped at an intersection for what seemed a very unusually long time.  When the police made a U-turn to follow the Ds, the D’s suddenly turned to the right without using their turn signal and sped off at an unreasonable speed.  When the police finally caught up with the D’s, a police officer stepped out, identified himself as a police officer, and directed the driver to place the truck into park.  When the officer arrived up to the D’s window, he say two large plastic bags of what appeared to be crack cocaine in the D’s hands.  At trial for violating various drug laws, the D’s suppression motion was denied and the Court of Appeals affirmed.
Issue:  Whether the temporary detention of a motorist who the police have probable cause to believe has committed a civil traffic violation is inconsistent with the 4th amendment’s prohibition against unreasonable seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce the traffic laws?  NO
Holding:  We reject the D’s arguments that we adopt a rule that would allow the subjective intentions of the police officers to play a role in “probable cause” 4th amendment analysis.  When a balancing test is applied to the police officer’s conduct to find out if their conduct was “reasonable,” we find that the making of a traffic stop out-of-uniform does not remotely qualify as such an extreme practice that outbalances the private interest in avoiding police contact.  Here the trial court found that the Ds had violated the traffic code.  That rendered the stop reasonable under the 4th amendment and the evidence thereby discovered is admissible.  Judgment affirmed against the defendants.
Rule:  The decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.
- SC adopted this test:  the stop is legal if under the circumstances the police officer "could have" stopped the individual.  Other jurisdictions, had in place the "would have" test.  (In other words, would have he police officer under the circumstances have stopped in person - in this case, it is likely that the officers here would not because it would blow their cover, it was a minor violation, at it was against their own regulations.)
-  Totality of the Circumstances Test = practical common-sense determination.


Michigan v. Long
Facts:  Two officers on patrol observed a car traveling erratically and at excessive speed when it turned on a side road and served off into a ditch.  The officers stopped to investigate and after the D failed to respond to questions, the officers thought that the D appeared to be under the influence of something.  When the D began walking toward to open door of his vehicle, the officers followed and observed a large hunting knife on the floorboard of the driver’s die of the car.  The officers than stopped the D and subjected him to a terry pat down which revealed no weapons.  One officer then shined his flashlight into the interior of the vehicle and noticing something that was protruding from under the armrest on the front seat.  When the officer entered the vehicle and lifted the armrest, he saw on open pouch which contained what appeared to be marihuana.  The D was then arrested.  The trial court and appeals court upheld D’s conviction and upheld the trial court’s denial of the motion to suppress.  The Michigan Supreme Court, however, reversed the conviction.
Issue:  Does a “terry” protective search extend to an area beyond the person in absence of probable cause to arrest if that area is the passenger compartment and trunk of an automobile that the person was driving?  YES
Holding:  We believe that the police action in this case is justified by the principles in Terry.  When we examine the reasonableness of the officer’s conduct, we must balance the need to search or seize against the invasion which the search or seizure entails.  In doing so, we hold that in light of the danger to police with vehicle stops, the officer’s conduct was not unreasonable under the circumstances.  The balancing of Terry clearly weighs in favor of allowing the police to conduct an area search of the passenger compartment to uncover weapons, as long as they possess an articulable and objectively reasonable belief that the suspect is potentially dangerous.
Rule:  The search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.

Pennsylvania v. Mimms
Facts:  When the D was pulled over because the car he was driving had expired license plates, the officers ordered the D to step out of the car and produce his license and registration.  When the D did this, one officer noticed a large bulge under the D’s sports jacket and in the fear that it might be a weapon, he frisked the D and discovered that in his waistband the D was carrying a loaded handgun.  After he was convicted, the Pennsylvania Supreme Court overturned his conviction.
Issue:  Whether the order to get out of the car, issued after the driver was lawfully detained, was reasonable and thus permissible under the 4th amendment?  YES
Holding:  Only when a motor vehicle has been lawfully detained for a traffic violation, may the police officers order the driver to get out of the vehicle without violating the 4th amendment.  Giving the circumstances here, we think that this additional intrusion can only be described as “de minimis.”  What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.
Rule:  The reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by police officers.
NOTES:  if at any moment, the officer has no longer the right to detain you, even if you give consent - it will not matter.  As a general rule, a person cannot consent to involuntary detention.  Look at Mendenhall.  So, look for situations where the officer has held someone longer than they should have because consent given afterwards is not sufficient.

Bright Line Rules based on previous cases:
- Probable cause and/or reasonable suspicion to stop the car.
 - can order the driver out (Mimms)
 - can order passenger out (Wilson, Problem 14B)
- IF there is reasonable suspicion of danger,
 - anyone about whom the officer has a suspicion of danger, police can frisk and do a limited search for weapons and passenger compartment limited to those areas within which a weapon may be placed or hidden.  (in suspects immediate control)
- IF there is probable cause to do a custodial arrest (which depends on state to state) then,
 - the police get a search incident to arrest (regardless to offense) for the protection of the officer and to protect evidence.  Gives the police to right to search the person, the passenger compartment AND contents and all containers in the passenger compartment (but you don't get the trunk - but you get any locked items including the locked glove compartment).

Michigan v. Long:  Sets the jurisdiction of the federal courts.  The states can give more protection than federal courts.  If there is independent and adequate state grounds, the federal courts do not have any jurisdiction to hear the case. When a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.
4 exceptions for car with each different limitations**** Make sure you know these.
1) Carroll
2) Chambers
3) Sanders and Ross (Sanders is destroyed later)
4) Acevedo

Chambers v. Maroney
Facts:  While driving, the D was stopped by police because he fit the description of a suspect involved in a robbery.  The occupants of the car were arrested and the car was driven to the police station.  The police then searched the car at the police station without a warrant and found incriminating evidence in a sealed compartment and D was convicted at trial.
Issue:  Do the police have to conduct a warrantless search of the vehicle when the occupants are arrested?  NO
Rule:  When the police have probable cause to believe that a vehicle contains incriminating evidence, a warrantless search may be conducted either immediately after the arrest or at a later time if the car has been seized.
Holding:  We see no difference between on the one hand seizing and holding a car before presenting the probable cause to a magistrate and on the other hand carrying out an immediate search without a warrant.
Notes:  Carroll Exception:  you need probable cause and also the suspicion that there is illegal contraband or evidence with "exigent circumstances." The search must be made immediately or held without a warrant for whatever period is necessary to obtain a warrant for the search.    (you can't do this under just reasonable suspicion)  In this case, it appears that you do not need the "dark and stormy night exception" as in Chambers to complete a search without a warrant.

US v. Chadwick
Facts:  Federal agents arrested the D and seized his locked footlocker after arriving in Boston after police in San Diego noticed suspicious activity.  Before the D was arrested, a drug dog alerted the police to drugs within the footlocker and the D was arrested after the footlocker had been placed in his car.  The footlocker was then taken to the police station and open without a warrant more than an hour after the arrest.
Issue:  Is a search warrant required before the police may open a locked footlocker which they have lawfully seized at the time of the arrest of its owners, when there is probable cause to believe the footlocker contains contraband?  YES
Holding:  The 4th amendment protects people, not particular places.  We reject the govt’s position that the car exception applies here because there was no exigency (no danger to evidence here) and this was not a search incident to arrest (the search was more than an hour later).  With the footlocker safely immobilized, it was unreasonable to undertake the additional and greater intrusion of a search without a warrant.
Rule:  When no exigency is shown and when not incident to an arrest that supports the need for an immediate search, the 4th amendment prohibits the searching of a footlocker without a warrant.  In other words, the moment you step outside, you do not lose your 4th amendment rights.  The 4th amendment protects people, not places.
Notes:  2 exceptions are applicable here:  1) the auto exception, 2) search incident to arrest.   Search and Seizures require probable cause plus a warrant unless there is some exigency that excuses the need for the warrant.

US v. Ross
Facts:  D was convicted of drug charges after police stopped his car after they received an informant’s tip that he was carrying drugs in his trunk.  At the stop and after D was arrested, the police searched his trunk and found heroin in a closed bag in the trunk of D’s car.
Issue:  If the police have probable cause to search a lawfully stopped vehicle, can they search every part of the vehicle and its contents that may conceal the object of the search?  YES
Holding:  A search is not unreasonable if based on facts that would justify the issuance of  a warrant, even though a warrant has not actually been obtained after the police have probable cause.  The scope of the warrantless search of the automobile is not defined by the nature of the container in which the contraband is secreted.  Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.  In Chadwick and in Sanders, both container cases, the police did not have probable cause to search the vehicle or anything within it except the containers themselves.
-  once police find contraband in a closed container, the Ross exception may be applied and therefore the cops get the entire car.


Notes:  Different Rules depending on whether car or container (before Acedvedo)
auto cases:  Carroll and Chambers
 - in auto cases, there is a great chance of mobility and lower expectation of privacy allows for a warrantless search.
container cases: Chadwick and Sanders
 - in container cases, there is a high expectation of privacy than in a car.  There is no mobility here because the containers can be seized and held and a warrant obtained.

California v. Acevedo****
Facts:  Police had probable cause to believe that a bag Acevedo carried as he left a suspected drug dealer’s apartment contained marijuana.  Acevedo put the bag in his trunk and drove away.  The police then pulled his car over and searched the bag in the trunk, finding marijuana.  Acevedo moved to suppress the evidence, claiming that the search of the bag in the trunk violated the 4th amendment.
Issue:  Does the 4th amendment require the police to obtain a warrant to open the sack in a movable vehicle simply because they lack probable cause to search the entire car?  NO
Holding:  Prohibiting police from opening closed containers in a car, while permitting them to search every other inch of the vehicle, is an inconsistent and confusing policy that does not further the privacy interest.  One rule should govern all automobile searches.
Rule:  The police may search an automobile without a warrant as long as their search is supported by probable cause and the search is limited to containers in which the police have probable cause to believe that contraband or evidence is contained.
-  Basically this case stands for the proposition that there are very few situations in which police will commit a search outside the home of the person which is violative of the 4th amendment as long as they have probable cause to search the car or package.  The rationale between the different treatment between cars and containers are rejected.
- this case rejects the decision in Chadwick.
-  HYPO:  What if the police wanted to search the spare tire as in the fact situation in Acevedo?   Can the police search?  NO.  The search is limited.
 NOTES:  Warrantless searches are still per se illegal unless it falls under one of the specific exceptions.  (ie. like automobile exception)  If you have the same situation as in Chadwick footlocker, you still need a warrant to search the footlocker if the police stop them before they put the locker into the car.  No exigency problems and there is an enhanced desire for privacy for footlockers.  If the person is arrested, you still cannot search the locker because it is not a search incident to arrest because the footlocker is locked and therefore not in the immediate control of the D.  The police can, however, seize the item and obtain a warrant to search the footlocker.  Also, when the footlocker is placed into a car, Acevedo applies and the search may be undertaken by the police officer without a warrant.

16C:  US v. Whitehead (1988)
- reluctant acquiescence to something that would have occurred anyway, is not a consensual search.
-  we conclude that 4th amendment does not protect from every govt intrusion - balancing test shows that we conclude that search was reasonable without probable cause.

South Dakota v. Opperman
Facts:  After D’s car was impounded for multiple parking violations, the police, in accordance with standard procedures, searched the car to remove valuables and D was arrested when police found marijuana in the unlocked glove compartment.
Issue:  Is it unreasonable for the police to conduct a warrantless search of an impounded vehicle, including the glove compartment, in accordance with their standard inventory procedures?  NO
Holding:  The 4th amendment permits police to conduct a warrantless search of an impounded vehicle, including the glove compartment, when following standard inventory procedures.  This rule is based on the policy reasons concerning the car’s mobility, the person’s diminished expectation of privacy, and for public safety and limitations for liability for police concerns.
Dissent:  Absent specific consent, the Constitution does not permit routine searches of an impounded car except in circumstances of particular necessity.  To override the absence of specific consent, the search must be necessary in order to preserve the integrity of particular valuable property and such a search may only follow the exhaustion an failure of reasonable efforts to reach the owner of property.
On Remand to State Court:  State court refused to apply rule handed down by Supreme Court.  Instead, they again reversed the trial court and suppressed the evidence by interpreting the police action in accordance with their own state constitution and found that the state has the power to provide the D with greater protection that the federal Supreme Court.  The state court then found that a non-investigative police inventory search of vehicles without a warrant must be restricted to safeguarding those articles which are within plain view of the officer’s vision - therefore the search of the glove compartment was an illegal search under the state constitution.  (This remand is no longer the case in SD because in later cases the courts have formulated a more expansive rule)
NOTES:  It does not appear that the court specified any limits to this custodial search after the vehicle has been impounded.

Illinois v. Lafayette
Facts:  After D was arrested for disorderly conduct and was detained at the police station, a police officer searched his handbag and found drugs.  The search was part of a normal inventory procedure.
Issue:  Is it unreasonable for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures?  NO
Holding:  In balancing the competing interests between the individual 4th amendment interests against legitimate govt interests, the government wins on the basis of privacy concerns, protection of property, safety concerns, and because it would be unreasonable for police to make fine distinctions in deciding which containers or items may be searched and which must be sealed as a unit.

Cupp v. Murphy
Facts:  After voluntarily coming into the police station, the police took samples of scraping from his fingernails without a warrant or D’s consent, but they had probable cause.  The evidence obtained was used to convict the D of murdering his wife.
Issue:  If probable cause exists and the evidence is readily destructible, may a limited search be undertaken incident to a detention?  YES
Holding:  Under the circumstances of this case, a limited search on the basis of probable cause was no violative of the 4th amendment because of the principles given in Chimel.
Notes:  just cite to Warden v. Hayden and say that the "exigencies of the circumstances" justify the search.  Some courts refer to this rule as a search incident not to an arrest.

Warden v. Hayden
Facts:  Police officers searched the home of the D, a robbery suspect.  During the search the officers found weapons allegedly used in the robbery as well as clothing that matched the description of those worn by the robber.  The police arrest the D and seized the weapons and clothing.  The seized items were introduced against the D at trial and secured his conviction.  The D appeals, claiming that the clothing was improperly seized and therefore inadmissible.
Issue:  Does the 4th amendment distinguish between mere evidence and the instrumentality’s, fruits of the crime, or contraband?  NO
Holding:  As long as the evidence obtained during a search is related in some way to the criminal behavior, seizure of purely evidentiary objects is constitutional.  Privacy interests are no more disturbed by a search directed at a purely evidentiary objected than by a search for items used or taken by a suspected criminal.
Dissent:  Items taken from a person without his consent and used as evidence violates the 5th amendment.
Notes:  before this case, there was a rule that distinguished contraband from mere evidence.  The rule was the the govt could not search to look for mere evidence in the D's zone of privacy to look for animus of criminal activity.
- another exception to the warrant requirement :  "HOT PURSUIT" allows that the police to continue to search for suspect in the premises because of the exigency of the circumstances.  The 4th amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.  Speed here was essentail, and only a thorough search of the house for persons and weapons could have insured that the D was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.

Plain view exception
-  According to Arizona v. Hicks, a police may justify a seizure in plain view as long as  1) police are lawfully in position to view it, 2) discovery must be inadvertent (no longer the case in Horton), 3) it must be immediately apparent that the evidence is contraband or evidence.  In Arizona, Scalia says that the police never lawfully got into position to get the view necessary that the stereo was stolen.  Under the public caretaking policy, the police had the right to be there, but they did not have the right to move the stereo to see the serial numbers.  The search must be limited to the exigency that justified the intrusion.  In Arizona, the hot pursuit doctrine does not allow this. If the police are there for a reason, the police must stick to that reason.  Also, the fact that this search occurred in the home, makes big difference - more protection afforded.

Arizona v. Hicks
Facts:  Police lawfully entered into D’s apartment under exigent circumstances (hot pursuit) that arose after a shot fired through the floor of the apartment struck a man in the apartment below.  While searching for weapons, an officer noticed expensive stereo equipment and moved it slightly to record the serial numbers.  When the officer called the numbers in to see if they were stolen, he found out that they were, and D was charged with robbery.
Issue1:  Is it a search when a police officer moves something in order to view something hidden from plain view?  YES
Rule1:  Merely inspecting property that comes into plain view does not constitute a search, but looking at concealed portions is a search.
Issue2:  May the plain view doctrine be used when the police have less than probable cause to believe that the item in question is evidence of a crime or is contraband?  NO
Rule2:  Probable cause is required to search and seize things in plain view.  Police may not search or seize items based only on reasonable suspicion.
Dissent1:  The police officer’s action did not constitute a search because there is no distinction between moving equipment a few inches and looking at it.
Dissent2:  Because of the advantages of police officers and the minimal intrusion to the owner, a cursory inspection is justified if the police have reasonable suspicion that the item is evidence of a crime or is contraband.
- the wired thing about this case is that if the police said that they were looking for a gun when they moved the stereo, the evidence would likely have been admitted.
- if you cannot develop probable cause, you have to let the person go:  "the Constitution sometimes insulates the criminal activity of a few in order to protect the privacy of us all."  Judge Scalia in Hicks.


Horton v. California
Facts:  officer investigated crime and determined there was probable cause to search petitioners home for weapons and proceeds of the robbery; warrant issued only authorized a search for the proceeds; pursuant to the warrant searched home but did not find stolen property; however discovered weapons in plain view and seized them; seized evidence was not discovered inadvertently since the officer testified that he was also interested in finding other evidence connecting petitioner to the crime
Issue:  Whether the warrantless seizure of evidence of crime in plain view is prohibited by the Fourth Amendment if the discovery of evidence was not inadvertent
Holding:  Inadvertence is not a necessary condition; (according to this case)
?    2 conditions must be satisfied to justify warrantless seizure:
1)    Incriminating character must be immediately apparent to rise to the level of sufficient probable cause
2)    Officer must not only be lawfully located in a place from which the object can be plainly seen, but he must also have a lawful right of access to the object itself (officer must be in a lawful position to gain view which gives the oficer probable cause)

-  Court held that it is NOT required for application of the plain view doctrine, that the police's discovery of an item in plain view be "inadvertent."  Court references Coolidge v. New Hampshire (1971) = established certain characteristics of the plain view doctrine ("you can't move stuff around, not supposed to be able to open something or touch it.  The criminal nature of the thing is that it must be immediately apparent").  - M. Dubber

* Plain view = never justifies a search, only a seizure.

Hot pursuit:  you need to have a warrant (or exigency) and probable cause.  Keep this in mind. Look at 18C.

1) Authority?  (who can give consent) Matlock
2)  Validity?  (was the consent validly obtained) Bumper and Bustamonte cases

Wavier requires:
- voluntary under the totality of the circumstances is the test.
 -  knowledge is one factor under the Bustamonte case.

Consent? Analysis
 - authority (common authority over or other sufficient relationship to the premises - prove by joint access or joint use) or apparent authority (reasonable officer has to believe that person could give consent)
 - validity - (must be voluntary, etc. under Schneckloth - cannot be just an acquiescence to authority either actual or apparent)

- 3rd party consent does not rest on the law of property - it has to be shown  that the 3rd party gave consent and that the consent had both authority and validity of the consent of the third party that matters.

Stoner v. California
Facts:  D was convicted of armed robbery after his hotel was searched by police.  Though the police did not have a search or arrest warrant, they had obtained consent to search the room from a hotel clerk
Issue:  May consent to search the hotel room of a guest be given by a hotel employee?  NO
Holding:  A warrantless search must be justified by an exception and the trial court’s finding that this was a search incident to an arrest was incorrect.  The search here was completely unrelated to the arrest, both in time and as to place.  In addition, the govt’s argument that the clerk’s consent was enough is unpersuasive.  fThe rights protected by the 4th amendment cannot be eroded by strained applications of the law of agency or by unrealistic doctrines of apparent authority.  Therefore, a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures and it follows that this search without a warrant was unlawful.  Conviction set aside.

Bumper v. North Carolina
Facts:  D was convicted of rape after a rifle was seized from his home.  D’s grandmother consented to a search of the house after police showed up and falsely stated that they had a search warrant.
Issue:  Can a search be justified as lawful on the basis of consent when that consent has been given only after the police conducting the search asserted that they possessed a warrant?  No
Holding:  Consent must be given freely and voluntarily with no coercion.  A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid.  Here, the grandmother did not actually give consent to the search and it was an error to admit the evidence obtained against the D into evidence.  Conviction overturned.

Schneckloth v. Bustamonte
Facts:  D was a passenger in a car that was stopped for a traffic violation.  After the driver consented to a search of the car, evidence that led to D’s conviction was found.  Because the driver was unaware of his right to refuse to consent to the search, D argued the consent was involuntary and that the search was invalid.
Issue:  What must the state prove to demonstrate that a consent was voluntarily given?
Holding:  The 4th and 14th amendments require that the state demonstrate that the consent was voluntarily given and was not the result of duress or coercion, either expressed or implied.  Voluntariness is a question of fact to be determined from all the circumstances.  While the subject’s knowledge of a right to refuse is a factor to be taken into account, the state is not required to demonstrate such knowledge as a prerequisite to establishing voluntary consent.
Dissent:  A decision made without knowledge of available alternatives is no choice at all, the prosecution may not rely on a purported consent to a search if the subject did not know that he could refuse consent to the search.

US v. Matlock
Facts:  D was convicted of robbing a bank after police searched the house he was living in.  The D was arrested in the yard of the house and afterwards the police obtained consent to search the house by a woman who also lived in the house.
Issue:  When is the consent of a third party sufficient to justify a search?
Holding:  The consent is sufficient when the permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises.

Illinois v. Rodriguez
Facts:  A woman was severely beaten by the D while in his apartment.  She left and called police and when requested, she took the police to the D’s apartment, where he was sleeping, opened the door and she consented to a search even though the police had no warrant.  When the police entered the apartment, they found drugs in plain view.  At trial, the D moved to suppress the evidence because the woman did not live in the apartment and count not consent to the search because she did not possess common authority over the premises.  The trial court and appeals court suppressed the evidence.
Issue:  Whether a warrantless entry is valid when based upon the consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not do so?
Holding:  The 4th amendment guarantees only that searches and seizures will not be “unreasonable.”  The government does not have to be correct in its actions, only reasonable in any mistakes.  The reasonable belief of the police that a third part with authority had consented to the search therefore satisfies the 4th amendment requirement.  However, this is not a blanket rule as the surrounding circumstances in certain situations can be such that a reasonable person would doubt the third party’s truth and should not act upon the 3rd party’s consent without further inquiry.
Dissent:  3rd party consent searches are not based on an exigency and are not generally reasonable.  The police should obtain a warrant rather than relying on third party consent and accept the risk of error when they do not obtain a warrant.

- this is important because if it is determine that the govt conduct has not invaded a person's reasonable expectation of privacy, it is considered not a search.  A search actually becomes a "non-search."  Because of this, if no search occurs, 4th amendment concerns do not apply.  The govt does not have to justify their behavior.

Olmstead v. US (overruled by Katz)
Facts:  D was convicted of conspiracy to violate the National Prohibition Act after govt agents planted wiretaps without trespassing on any of D’s property and heard about the entire enterprise.
Issue:  Does the use of evidence of private telephone conversations between the defendant and others, intercepted by means of wire-tapping, amount to a violation of the 4th amendment?  NO
Holding:  The 4th amendment only protects against trespassory searches of persons and material things.  Thus, nontrespassory wiretaps do not constitute a search and a seizure.

Katz v. US (uses the nomantive approach)
Facts:  Katz was convicted of transmitting wagering information by telephone in violation of a federal statute.  During the trial, the govt introduced evidence of telephone conversations obtained by an electronic listening device attached to the outside of a public telephone booth.  The govt failed to get a warrant prior to tapping the booth.
Issue:  Does the recording of the D’s conversation when he used a public phone constitute a search and seizure?  YES
Holding:  The govt here committed a search and seizure of the D and which cannot be reasonable under the circumstances because it amounts to a govt invasion into the privacy of the defendant.  Conviction overturned.  The trespass doctrine in Olmstead can no longer be regarded as controlling.

What constitutes a search?
 - you can do a risk analysis - (possible public will see, not likely, or likely)
  -  is it possible that the public could see you?  Did you assume the      risk?  If so, the govt does not have to justify its behavior.
  -  is it likely
 - normative approach -  there are certain societal understandings that there are places that are private.  (is this the place?) (is looking through a window a search? - probably so under this approach.   A question is what would happen if someone did this, would they be arrested by the police?  There are certain activities that society will recognize as private and this approach will depend on societies understandings about under what situation it is reasonable to provide for an expectation of privacy.  Are the police entitle to assume that the activity is private?  Has the individual "sough to exclude" others from hearing or gaining information that they consider is private?


Look at page 254:  telephone numbers can be obtained from telephone co,
-  also, same rule applies to checks at a bank - police can obtain them.
- cordless phones, cell phones - the same rule applies - no reasonable expectation of privacy.
- no expectation of privacy when other people have a wire recording device
- police view from air - Problem 20a - no reasonable expectation of privacy.
- 2 level bus analogy - under pure risk analysis - if it is any way possible for a person to see or hear what you are doing - you have no reasonable expectation of privacy.  (Butterfoss Gerhaldo Rule)

Privacy TEST
-  Could a really obnoxious, really nosy individual could have seen what you did or record your conversations - if so, you have no reasonable expectation of privacy.

California v. Greenwood
Facts:  Police obtained a search warrant based on drug paraphernalia taken from D’s garbage.  A search then of D’s house revealed narcotics and D was subsequently arrested.
Issue:  Does the 4th amendment prohibit the warrantless search and seizure of garbage left for collection outside the home?
Holding:  Since garbage left for collection outside the home is exposed to the public for the purpose of conveying it to a 3rd party, it is not protected by the 4th amendment.  Actions by the police violate the 4th amendment only if the defendants manifested a “subjective expectation of privacy” in their garbage that society accepts as objectively reasonable.  Here, that was not the case.
- rule according to garbage = the garbage must be placed out at the curb and place for collection before the police can go through garbage.

Oliver v. US
Facts:  After police receive reports that Oliver was growing marijuana on his property, officers investigated and found a field of marijuana over a mile from D’s home on his property.
Issue:  Is this search reasonable under the open fields doctrine which permits police officers to enter and search a field without a warrant?  YES
Holding:  This search was reasonable even though the police gained entry to the land unlawfully and even though the field was not really open to everyone and was concealed from the public.  The issue is whether a person has a constitutionally protected reasonable expectation of privacy.  However, the 4th amendment does not protect the D’s only subjective expectation of privacy, but only those expectations that society is prepared to recognize as reasonable. An individual may not legitimately demand privacy for activities conducted outdoor in fields, except in the area immediately surrounding the home.  In this case, there is a distinction between curtilege (immediately surrounding the home) and open fields using the normative approach.
wiretap : you still need a court order - there is a statute that applies and makes this the rule in these cases.

- be aware that just because what the police are doing is an illegal activity (like trespass), does not mean that there is an automatic application of the 4th amendment.  You have to always do the analysis and the test for whether there is a reasonable expectation of privacy.

- most of the cases apply the risk approach, but at some point, the court has said it will shift over to the normantive approach in order to find a broader protection when the search has been extremely intrusive.

- always put standing in quotes:  "standing"  whether the search violated someone's reasonable expectation of privacy.
- the test:  Does the actions of police violate each D's reasonable expectation of privacy?  If in car - apply Rakas and say that there is no reasonable expectation of privacy.  If in house - apply Olson and say that there is a reasonable expectation of privacy that was violated.  However, keep in mind, that just because someone is in a car and on the premises where illegal activity occurs, the courts seem to be saying that  the person needs more than permission to be legitimately on the premises - there needs to be a created expectation of privacy based on the activity of the D (the D needs to do something that creates that expectation.)  Being just legitimately on the premises is not enough!  The bright line rule is that passengers in a car have no reasonable expectation of privacy - the driver does, however.  In addition, it seems like you need to be an "overnight guest," and not just a quick visitor to receive a reasonable expectation of privacy.  Butterfoss thinks that this bright line rule will likely stand for a long time and not likely be eroded that gives people a better chance of receiving a reasonable expectation of privacy.  A one minute visitor will likely never receive that expectation, but maybe people watching a basketball game will someday if the courts receive a fact situation that allows them to decided upon this issue.

-  provides standing to someone legitimately on the premises
- also case gave the rule of automatic standing: anyone charged with a possessory crime, you got automatic standing.

US v. Salbucci
- no automatic standing:  govt can use what the D used in the suppression hearing in order to prove the case.
-  however, the testimony can still be used to impeach the witness.

Rakas v. Illinois
F:  Police received a radio call about a robbery that included a description of a getaway car. Stopped a car matching the description with Ds and 2 female companions. Police ordered all occupants out of the car, and searched it. The police then found rifle shells in glove and sawed off rifle under front passenger seat. Ds were passenger and owner of the car.
P: Lower court denied standing to Rakas because he was not the owner of the car or of the seized items. Illinois app. ct. aff'd. Illinois s.ct. found Ds had burden of proof on standing and had failed to meet burden of showing ownership of shells.
I: Did Ds have standing to challenge evidence?
R: The Exclusionary rule will only be applied to those persons whose 4th Amendment rights have been violated, not when violation of someone else's 4th Amendment rights leads to the introduction of evidence that is damaging to person whose 4th Amendment rights have not been violated. (The victim must have a reasonable expectation of privacy in the area searched).
H: Evidence admissible.
R: per Rehnquist:
* Person whose 4th Amendment rights have actually been violated has ample reason to move to suppress - so this creates adequate deterrent effect.
* rejects 'target' theory - protection of exclusionary rule does not extend to 'target's of searches’ or "automatic standing."
* Rights under 4th Amendment are personal rights - so issue of standing is subsumed under 4th Amendment doctrine
*  Legitimately on premises rules is too broad - what test really means is that person may have a legally significant interest in a place other then their own home (Look i.e. at Katz) Idea is that Defendant in Jones had a legitimate interest in privacy of apartment he was staying over at. This rule is also not the bright-line that dissenters imply it is.
DO: per White + Brennan
* Decision declares open season on automobiles, however unlawful the stop and search is no mere passenger may object regardless of their relationship to the owner.
* Jones rule easy to follow compared to one from this case.
* POs can stop vehicles with >1 occupant, search and still be able to use evidence against the passengers even if the search is illegal and they can't use the evidence against the owner!
* allows POs to unreasonably invade privacy of passengers
N: After Rakas, only victim has standing. Flies in the face of Schneckloth which said 4th Amendment not about personal rights (so 3rd party consent to search is okay).

- the case rejects the rule about whether the person is "legitimately on the premises"
- the question is whether the D have a "legitimate expectation of privacy."  per Katz.
- if you can show that you have some special relationship with the owner, that will be enough to establishing standing to challenge an illegal search and or seizure.

Minnesota v. Olson
Facts:  Olson, a suspect for murder, was reportedly hiding at a friend’s house where he was a houseguest.  The police confirmed that Olson was at the premises, entered without a warrant and without seeking permission, and arrested him.  Olson then was convicted at trial and the MN Supreme Court overturned his conviction on the basis that the arrest was illegal because there were no exigent circumstances to justify a warrantless entry and that the D had a sufficient interest in privacy even though he was a houseguest.
Issue:  Does a suspect’s statues as a houseguest carry a sufficient expectation of privacy to require a warrant to arrest him in that place?  YES
Holding:  A suspect may not be arrested in his house without an arrest warrant, even though there is probable cause to arrest him.  The warrantless arrest of a suspect in someone else’s home violates the 4th amendment where the suspect has a sufficient connection with the premises to be considered a householder entitled to an expectation of privacy.

2 approaches:  two ways the court may look at any issue before them:

Traditional approach:  probable cause (reasonable suspicion required in certain cases)  +   warrant (or exigent circumstances) in order to determine reasonableness.
Modern Approach:  balancing test between the competing interests to determine reasonableness.  (used when there are special needs that justify the state's actions or non-criminal situations)  If you can find that the privacy interests are minimal and the govt has a legitimate reason, then it is likely that the state will be upheld.
Always ask, like Scalia, whether there is a real problem be solved under the circumstances or if the govt's actions are just symbolism.  In order to apply the balancing approach, there must be special needs other than regular needs of law enforcement.

Camara v Municipal Court: (housing and business searches)
Facts:  Public Health Dept. got info that  D was using rooms as a residence in violation of the bldg. code.  D refused entry to warrantless inspector.   D was charged with refusing to permit lawful inspection under the Code.
Holding:  No way for  D to challenge grounds of inspection absent arrest - w/o search warrant requirement. Warrant required and should be issued if public interest justifies the intrusion contemplated (plus notice).  No compelling urgency to search immediately.
Dissent:  If always PC, and always warrant issued, why bother?; citizen can contact DPH to verify grounds for inspection.
Rule:  While inspections by local officials are generally reasonable, a search warrant is required if, absent an emergency, a person refuses to permit entry into their residence.  Same rule applies to businesses as well.  There is an exception:  for closely regulated businesses (gun sellers, licquor, etc.) a warrant is not required.  Look for a scheme in which the govt closely watches or monitors certain businesses in trade and in those cases - no warrant is required.


New Jersey v. TLO (no probable cause or a warrant on school grounds - all that is required is some reasonable individualized suspicion)
Facts:  A 14 year old student was brought in to the vice-principal’s office for allegedly smoking in the school rest room.  The vice-principal searcher her purse and found marijuana.
Issue1:  Does the 4th amendment protections apply to searches conducted by public officials?
Holding:  Yes.  4th amendment applies to searches conducted by all government officials, including public school officials.
Issue2:  What requirements must be met before school officials conduct a search of the student?
Holding:  Balancing test applies here.  School officials do not need a warrant or even have probable cause before searching a student under their authority.  Since the child’s interest in privacy must be weighed against the substantial interest of teachers and administrators in maintaining discipline in school, a school official’s search is justified when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated either the law or the rules of the school.  The scope of the search must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
Dissent:  Full-scale searches unaccompanied by probable cause violates the 4th amendment.  The 4th amendment does not require a balancing test, and even if it
did, the privacy rights of the individual would outweigh the other interests involved.


Skinner  v. Railway Labor Executives’ Association (highly regulated trade under Camara)
Facts:  The Federal Railroad Administration enacted regulations that required employees to undergo blood and urine tests if they were involved in train accidents or violated certain rules.
Issue:  Does a regulation that mandates blood and urine tests violate the 4th amendment because there is no reasonable suspicion or a warrant required before giving the tests?
Holding:  No, in limited circumstances, where the privacy interests implicated by the search are minimal, and where important government interests are furthered by the search would be placed in jeopardy if further requirements were made, a search may be reasonable despite the absence of such suspicion or a warrant.
Rule:  where there are special needs by the state to do something, the courts will determine reasonableness of the search through the modern approach balancing test instead of the traditional approach that requires a warrant + probable cause.

US v. Martinez-Fuerte (66 miles away from border checkpoint upheld on balancing test)
Facts:  D was convicted of transporting aliens after he was stopped at a permanent checkpoint north of the Mexican border.  Officers at the checkpoint visually inspected all cars and stopped a relatively small number though without any requirement of reasonable suspicion or without obtaining a warrant first.
Issue:  May a vehicle be stopped at a fixed checkpoint for brief questioning even though there is no reason to believe the vehicle contains illegal aliens?  YES
Holding:  Routine stops for brief questioning conducted at permanent checkpoints may be made in the absence of any individualized suspicion and no warrant is required to put such a checkpoint in place.  This is based on the balancing test between the interests of the state to prevent illegal immigration and the driver’s inconvenience and intrusion which is minimal.
Dissent:  These checkpoints stops are equal to those stops made by patrols, which require that the police have reasonable suspicion in order to stop.  Thus, here the court should require reasonable suspicion because without this requirement, officers will be permitted to discriminate against citizens of Mexican ancestry since they will undoubtedly be the ones stopped.
Notes:   This is a special need of fighting illegal immigration.  When confronted with these special need seizures, you must engage in a balancing test between the state interest to prevent illegal immigration & the driver's inconvenience & intrusion.

- you apply the balancing test to the people be intruded by the govt, not the public in general.

Michigan Department of State Police v. Sitz : special need: stop drunk driving.
Facts:  The Michigan Dept. of State Police established a sobriety checkpoint program to curb drunk driving.  All vehicles passed passing through a checkpoint were stopped and briefly examined for signs of intoxication.  If the officer detected signs of intoxication, then the motorists was pulled over and questioned further.  All other motorists were released immediately.  Respondents sought declaratory and injunctive relief from the checkpoints claiming a violation of the 4th amendment.
Issue:  Does sobriety checkpoints violate the 4th amendment?  NO
Holding:  The state’s interest in preventing accidents combined with the effectiveness of the program in advancing the public interest outweighs the level of intrusion on individual privacy.  The police may set up a fixed checkpoint on the highway to test for drunkenness. Although a stop at such a "sobriety checkpoint" is a "seizure," such stops may be made of all drivers even though the police have no particularized suspicion about any one driver.

Delaware v. Prouse
- side case in which the supreme court disapproved of random stops made by police in an effort to apprehend unlicensed drivers and unsafe vehicles.  Because the court found that the stops were no an effective means of promoting roadway safety and that it would cause more problems for innocent drivers, the court found the police policy unconstitutional and violative of the 4th amendment.
- special needs must be demonstrated in order to get to the balancing test or a minimal intrusion.  (KEEP THIS IN MIND FOR EXAM)
- does it have to be non-criminal acts to justify the special needs?  (see problems 23a and 23b (two courts find different approach).   You must look to the purpose of the roadblock, etc. in order to determine if it is sufficient enough purpose to justify the balancing needs of  competing interests.

REMEDIES:  The exclusionary rule and the good faith exception

Wolf v. Colorado
Facts:  D’s conviction rested, in part, on evidence inadmissible under federal law but admissible under state law because the evidence was procured by an unreasonable search and seizure.
Issue:  Are state courts required under the 14th amendment to follow the federal rule that evidence acquired through an unreasonable search and seizure is inadmissible?
Holding:  In a prosecution in a state court for a state crime, the 14th amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.

2 purposes of exclusionary rule
1)  deterrence of improper police conduct  (now it only applies to police officers)
2)  to uphold and make judicial integrity

Mapp v. Ohio
Facts:  Mapp was convicted of possessing obscene materials based on evidence obtained from an illegal search of her home.
Issue:  Are state courts required under the 14th amendment to follow the federal rule that evidence acquired through an unreasonable search and seizure is inadmissible?
Holding:  All evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.
Concurrence:  While the 4th amendment alone is not enough to bar the introduction of evidence obtained by an illegal search, the combination of the 4th amendment and the 5th amendment’s ban against compelled self-incrimination requires the exclusionary rule.
Dissent:  The 14th amendment is sufficiently flexible to allow states to apply their own procedures of judicial administration.  Since the problems of criminal law enforcement vary widely from state to state, states should be free to develop their own exclusionary rules.


US v. Leon "good faith exception"
Facts: Police obtained a warrant on the basis of information from a confidential informant as well as their own investigations.  Pursuant to the warrant, the police searched several houses and found evidence of narcotics violations.  After the arrests, the warrant was later found to be invalid because no probable cause existed.
Issue:  Does the 4th amendment exclusionary rule bar the use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause?
Holding:  As long as there is no allegation that the magistrate abandoned his detached and neutral role, suppression of evidence is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored any objectively reasonable belief in the existence of probable cause.  Since the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates, the rule has no effect when officers act in reasonable reliance on search warrants.
Dissent:  The 4th amendment must be read to condemn not only the initial unconstitutional invasion of privacy but also the subsequent use of any evidence obtained.  The exclusionary rule is compelled not by remedial purposes, but rather by a direct constitutional demand that prohibits any agency of the govt, including the judiciary, from encroaching on individual privacy.
Rule:  Good faith, probable cause mistakes by magistrates are excused in the case of search warrants.  If when probable cause is lacking, if the police acted in good faith and acted reasonably, the evidence will not be suppressed at trial.

Exclusionary Rule
:  is a judicially created remedy designed to safeguard fourth amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.

- use the balancing test to determine the cost/ benefit of the rule.  Cost:  the D goes free, benefit:  deterrence from illegal police conduct.


Only in 4% of criminal cases, do the exclusionary rule apply.

State v. Carter
Facts:  Police obtain a blood sample of the D without a search warrant and the D is convicted of several charges including rape, assault, etc.  At trial, D argues that his rights under the NC state constitution were violated by taking the blood sample and then using it against him at trial.
Issue:  May NC not adopt the good faith exception that would allow the evidence to come in against the D?  YES
Holding:  A state may give better protection to defendants than the federal constitution.  The state constitution here requires a valid search warrant if there are no exigent circumstances.  Here, because there were no exigent circumstances, exclusion of the evidence obtained and used against the D is excluded.  D gets a new trial.

HYPO:  A magistrate decides wrongly that there was probable cause and issued an search warrant.  Probable cause is determined by "fair probability" based on a substantial basis.  Good faith exception applies unless the magistrate "wholly" abandons his judicial role.(rubber stamp)  The question becomes whether a police officer can "reasonably rely" on the warrant issued.  If so, then it is ok.

Massachusetts v. Sheppard
-  SC applied the good faith exception to the exclusionary rule to uphold the admission of evidence obtained pursuant to a search warrant that was “technically” defective because of an inadvertent failure particularly to describe the items to be seized.  The items in question were identified in an affidavit accompanying the warrant.

- gives about 4 situations in which the exclusionary rule does not apply.
 1)  magistrate is mislead (with intentionally or reckless false information)
 2)  magistrate wholly abandons his role (some kind of rubber stamp)
 3)  so lacking in probable cause
 4)  warrant is facially deficient that officer could not reasonably rely upon (although in Sheppard, the warrant looked deficient in which the warrant was issued to look for drugs, even though the search was for murder evidence)

HYPO based on 24a
- watch out for situations in which the warrant does not specify an actual apartment number or studio number because the warrant may be "facially deficient" and therefore under Leon, the evidence found would be suppressed.  (exclusionary rule would be inapplicable)
- however, under problem 24E:  Maryland v. Garrison: the court found that even though the search extended to another apartment by accident, the court nevertheless found that the officer's actions were reasonable and therefore denied the suppression of the evidence.

Standard to determine probable cause
= fair probability based on the totality of the circumstances. (starting with the Anguilar-Spinelli (basis of knowledge and veracity prongs).

EXAM NOTES:  If the question says that a warrant was issued, you must always ask the question whether the good faith exception applies to the police to still get the evidence in and not suppressed.  According to Butterfoss, make sure you examine probable cause in detail and  make sure you give all arguments both ways on exam!

If police mislead the magistrate, the rule in Delaware v. Franks, is that you do not suppress the evidence automatically, you just look at the warrant and excise the misleading information (omit it).  Then the appeal court will look at the warrant without the false portions to determine if the warrant is valid (based on probable cause, good faith exception, etc.)  Keep in mind, just because an officer intentionally or recklessly misleads, the police can still reasonably rely on it and thus have the good faith exception.  However, another court may go another way.
Look at State v. Olson, 726 P2d 1347


Wong Sun v. US (direct and indirect evidence is subject to the exclusionary rule)
Facts:  Wong Sun and another D were convicted of drug charges after both made incriminating statements to narcotics officers.  The statements were made after officers made an improper search and arrest.  Wong Sun’s statement was made several days after his arraignment and the other D’s statement was made immediately after agents did the improper arrest.
Issue:  Does the exclusion of “fruits” of an improper search apply to statements made as a result of the search?  YES
Holding:  Verbal evidence that comes immediately after an unlawful entry and arrest is a “fruit” of the unlawful action and may not be used as evidence.  However, the evidence that came upon D’s free will is ok after the illegal search and arrest.  While Wong Sun’s statement is admissible on the fact that the statement was made several days after his arraignment after he was released at which he had returned voluntary to make the confession, the other D’s statement is not because it is sufficiently close to be a fruit from the poisonous tree.
Rule:  Actions which are “independent acts of free will” are usually admissible even though the first police contact was illegal.

Derivative evidence can come in:  but it is not a "but for test." The test for derivative evidence is:  whether, granting the establishment of the primary illegality, the evidence to which instead objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint."  See page 381.

Brown v Illinois 422 us 590 (1875)
(case cited in cases - look up)
(is statement sufficiently attenuated from the illegality of police conduct - factor test)
- temporal proximity of the statement
- intervening circumstances (release, seeing a judge/atty, miranda warnings)
- purpose and flagrancy of the police conduct

Dunaway v. New York
Facts:  Dunaway made incriminating statements after police officers took him into custody and interrogated him.  At the time of detention, police did not have a warrant or probable cause.
Issue:  Are police permitted to seize a suspect and interrogate him without probable cause?  NO
Holding:  While police may stop and frisk a suspect without probable cause, the detention and interrogation of a person is similar to an arrest and thus requires probable cause.
Rule:  Indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality.

New York v. Harris
Facts:  The police had probable cause to suspect D in a murder case.  They knocked on his door, identified themselves, and arrested him in his home without an arrest warrant in violation of the 4th amendment (Payton rule).  Then, after being taken down to the police station and after being mirandized, the D then signed a written confession.  At trial, D claims that the statement at the station house is inadmissible since the arrest was unconstitutional.
Holding:  We decline to apply the exclusionary rule in this case because the rule was designed to protect the home, not statements made away from the home.  Because the officers had probable cause to arrest the D for the crime, D was not unlawfully in custody when he was removed to the station house, given Miranda warnings, and then allowed to talk.  In addition, if the police make a warrantless entry into a home and did not find the D there, but then arrested him on the street when he returned, a later statement by him after proper warnings would also be admissible.
Rule:  Where the police have probable cause to arrest a suspect, the exclusionary rule does no bar the State’s use of a statement made by the D outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton.
Notes:  this case concerned 3 statements:  the first statement (taken in the home) was suppressed.  The second statement (they gave him Miranda after he went to the station).  The third statement, the police did not mirandize him and was suppressed.  The only statement on appeal is the 2nd statement that comes in.
- this real deal in this case is that because the police obtained the statement of the D outside the home, they found that when the statement was given, the D was not illegally detained: his arrest at that time was lawful even though the police illegal gained entry and arrested the D in the home without an arrest warrant.

Nix v. Williams (inevitable discovery exception to the exclusionary rule)
Facts:  D was convicted of murder after he killed a young child and hid her body in a field.  A search party, which would have found the victim’s body in a short time, was called off when D led the investigators tot he body as a result of improper police questioning. (police violated his right to counsel)
Rule:  If the prosecution can establish by the preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means, the evidence is admissible.  The reason for this rule is that the exclusion of the evidence would actually put the police in a worse position than they would have been in absent any error or violation of D’s rights.  In addition, the police need not obtain the evidence with good faith.

What is needed to show inevitable discovery
-  inevitable discovery by preponderance of the evidence
-  no bad faith is required by police anymore as a result of this case.

-  watch for the application of the exclusionary rule that would put police in a worse position than if the police had never committed the illegality in the first place.
The Nix case used this policy in order to find an exception to the exclusionary rule.
- also look for fact patterns in which the police act illegally and at the same time, the police get information about the D (bad evidence) at the same time from an independent source - if this is the case, the evidence still comes in and is not suppressed by the application of the exclusionary rule.

Frisbie v. Collins
Facts:  While D was living in Chicago, Michigan police officers forcibly seized him and took him back to Michigan and tried and convicted him for murder.
Issue:  May a state try and convict a D after acquiring jurisdiction by force?
Holding:  YES.  The power of a court to try a person for a crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a forcible abduction.


Look up case at 24b.


6th amendment

Powell v. Alabama
Facts:  The defendants, who were young black men, allegedly raped two white girls on a train.  The news of this preceded them to a town, causing hostility toward them.  There, they were tried without counsel.
Issue:  Does the due process clause of the 14th amendment make the 6th amendment right of criminal defendants to the assistance of counsel at trial applicable to the state?  YES
Holding:  Due process requires that the right of indigent defendants to appointment of trial counsel be extended to the states for capital cases.

Bright line rules for Powell
1)  there is a right to counsel in certain cases (capital crimes here)
2)  the right to an attorney, is not just at trial, but actually before the trial begins.

Betts v. Brady (1942)
Facts:  The defendant was an indigent was convicted of robbery after his request for counsel was denied
Issue:  Does the 14th amendment require that states adopt the 6th amendment guarantee of the assistance of counsel for indigent criminal defendants?
Holding:  The 14th amendment does not require that the right to assistance of counsel be extended to criminal defendants in all state non-capital cases.  This is to be determined on a case-by-case basis on the issue of whether the D is capable of defending themselves.
Dissent:  The right to counsel is fundamental and is applicable to the states through the 14th amendment.  (This view is adopted in Gideon)
- this case is no longer the law, look at Gideon

Gideon v. Wainwright (1963)
Facts:  The D, was an indigent, was indicted on felony charges and he requested that he be appointed counsel.  State law allowed for the appointment of counsel only for capital offenses.  D had to represent himself in court.
Issue:  Does the 14th amendment extend to the states the 6th amendment right of criminal defendants to the assistance of counsel at trial?
Holding:  The constitutional guarantee of the assistance of counsel at trial is a fundamental right that applies to all criminal defendants in both federal and state courts who cannot afford them.
Concurrence in Result:  An arbitrary difference in the quality of process for capital and noncapital cases cannot be made.  The 14th amendment requires due process both for the denial of liberty and life
Concurrence:  This holding represents the erosion of the rule that special circumstances that would prejudice a defendant without counsel must exist before he may be guaranteed counsel.
Notes:  after this case, everyone has a right for the state to provide them an attorney if they cannot afford one.  It no longer matters what kind of crime or how well able a person is able to represent themselves.  This right is now a "fundamental" right that cannot be taken away from the citizens.
- in addition, the right of the criminal D also extend to make the state afford experts, like psychiatrist's assistance to the issue of sanity, to help them put on their defense.  (there must be a "real need" for an expert, however).
- right to counsel extends through sentencing.  Under Due  Process grounds, the criminal D has a right to counsel for the first appeal but no more (this rule is not based on the Constitution and the 6th amendment).
- juvenile has a right to an attorney, also.
- you also have the right to represent yourself at trial (pro se)(usually co-counsel is assigned to help and unless D acts up, they can remain as counsel for their own defense)
- 6th amendment gives right to counsel in "all criminal prosecutions."  However, does not seem to be true in the literally sense.  Usually, less than 6 months are petty offenses and after 6 months up to a year of imprisonment, is a serious offense and after 1 year is a felony.  (This is the federal system - states may and often do vary in their approach and labels).  Crimes are usually measured by the potential for the length of incarceration, not the actual time spent.

Side note:  D has right to a jury trial if imprisonment is more than 6 months  - it makes it a serious crime.

Argersinger v. Hamlin (6 months potential incarceration allows for right to counsel)
Facts:  D, an indigent, was convicted of carrying a concealed weapon, a misdemeanor punishable by up to six month imprisonment.
Issue:  Does the 6th amendment right to the assistance of counsel at trial extend to defendants charged with petty crimes?  YES
Holding:  The 6th amendment right to assistance of counsel at trial extends to anyone accused of a crime that is punishable by imprisonment.  Even if the imprisonment is only for a single day of incarceration unless there is a waiver.  The determining factor is "actual," incarceration, and not potential incarceration.
Concurrence:  Law students may provide a significant source of legal representation to the indigent.
Concurrence in Result:  The test of whether due process requires that an indigent be appointed counsel should be whether in particular case it is necessary for a fair trial, not an immobile line between indigents faced with fines and those faced with imprisonment.
- This case is no longer the law - look at the next case.

Scott v. Illinois
Facts:   D was convicted of shoplifting and fined $50 after his trial.  Both the appeals court and the state supreme court upheld his conviction despite D’s contention that the 6th and 14th amendments to the Constitution required the state the provide trial counsel to him at his expense because he could have gotten imprisonment as a result of his conviction.
Holding:  The lower courts are upheld and D’s argument is rejected.  We hold that the 6th and 14th amendments require only that “no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to the assistance of appointed counsel in his defense.”  Here, the D received no imprisonment, so therefore, there is no requirement for him to receive appointed counsel.
****Notes:   The key is "actual" imprisonment now.  If there was actually no imprisonment, like just a $50 fine, then D has no right to counsel even though the D could have received jail time.  This is different that the jury trial requirement that will actually look at the "potential" for jail term, and not the actual.   If it is a felony, you still have a right to counsel under Gideon, however, if it less than a felony, you have to look at the actual imprisonment in order to determine if you have a right to counsel for a less than felony crime.  In MN, anytime you are going to be incarcerated, you have a right to counsel.

- situation where person gets convicted of a petty crime with no jail term.  However, on second conviction, which was for more than 2 years, the D's gets 5 years based on the combining of the two convictions under the sentencing guidelines.  What result?  Under Problem 28A. the court found that the conviction could not stand because the potential of punishment is greater than 6 months: counsel is required.)  In 28B, Nichols v. US, in 1994 the enhancement is found to be constitutional.  If the first conviction is valid, it can be used to enhance the later sentencing!

RULE:  You always have the right to counsel for "pre-trial" stuff, regardless of the length of sentencing or the type of crime.

Brown v. Mississippi
Facts:  Ds were arrested and confessed after being physically abused by police officers.  The police had no other evidence of their guilt other than the confession
Issue:  Is due process violated when police secure confessions by brutality and violence?  YES
Holding:  Due Process has been denied here.

Spano v. N.Y
Facts:  D had been arrested and questioned for several hours.  He had refused to answer any questions before speaking to his lawyer.  In an effort to extract a confession, the police brought in another police officer who was D’s friend and, after many hours, despite D’s request for a lawyer, D confessed.
Issue:  Is a confession gained after several hours of questioning, deception by a police officer, and the denial of requests to see an attorney gained in violation of the 14th amendment?  YES
Holding:  Due process is violated where under the “totality of the circumstances,” a confession is involuntary; where a D’s will is overborne by official pressure, fatigue, and deception, a confession gained as a result of these police activities is involuntary.
Concurrence1: Depriving a person of an attorney before a trial may be more damaging than denying an attorney at the trial itself.
Concurrence2:  The absence of an attorney alone offends due process.

US v. White
- under the 4th amendment, if you talk to someone and someone tapes the conversation, the conversation taken by the D is at their own risk and there is nothing wrong with the evidence.

Massiah v. US
Facts:  The police, after D’s indictment, overheard self-incriminating statements when they wired his co-defendant and listened to their conversations.  D had requested an attorney before answering any questions that the police directly asked him.
Issue:  Does the 6th amendment’s right to counsel prohibit interrogations of a D when his counsel is not present?  YES
Rule:  Admitting evidence at trial of a D’s own incriminating words that were deliberately elicited from him after he was indicted and in the absence of counsel violates the D’s right to counsel.
Notes:  When a criminal prosecution begins, under the 6th amendment, the D has a right to counsel.

Brewer v. Williams
Facts:  D, after abducting a girl, consulted with a lawyer who advised him to turn himself over to the police.  D agreed and D’s lawyer told the police not to speak to each other until the lawyer was present.  However, on the drive to the police station, the policemen discussed many issues, including religion, and the policemen asked D to “think about” certain things, but not to answer any questions.  Consequently, D led the policemen to the evidence of the crime.
Issue:  Does a D who volunteers information in response to police conduct that sought to deliberately elicit information waive his 6th amendment right to counsel?
Rule:  To establish a waiver, the state must show an intentional relinquishment or abandonment of the right to counsel, not merely that the defendant volunteered information in response to police conduct.


Escobedo v. Illinois (court later really finds this a case involving he 5th amendment - not 6th
Facts:  D was taken into custody and interrogated, but he refused to answer any questions until he could speak to a lawyer.  The police told D that D wouldn’t get to see his lawyer until he answered the questions and that his lawyer didn’t want to see him.  D’s lawyer, in the meantime, had been trying to obtain permission to talk to D.
Issue:  Does the 6th amendment right to counsel attach prior to indictment?
Holding:  Once someone is taken into custody and the investigation is no longer a general inquiry into an unsolved crime, the suspect has a right to counsel, and any statement elicited after a denial of a request for counsel is obtained in violation of the 6th amendment.  Police can still investigate unsolved crimes, but when the process shifts from investigatory to accusatory, the accused must be permitted to consult with a lawyer.

Major issue here:
How far back before trial does the right of counsel extend?
 - when does the right attach?
  - formal adversary proceedings (Wade)
 - what does the right prohibit?
  - against interrogation
  - against deliberately eliciting info by police (like in car) where there is    some evidence that police was doing more than just listening.    Putting a wire in would be no problem.
   (putting informant in jail was not deliberate enough for the court    to prevent info from coming in) See problem 29a
   - Police must do something more than just listening!
  - against pretrial identification without a counsel (line-up and show-ups)


- prior to trial:  usually the D has a right to counsel, however, at trial, it will depend on whether jail time is actually imposed (check this rule because I'm unsure whether this is the test)

US v. Wade
Facts:  D was indicted for robbing a bank.  Subsequently, while in custody, but without notice to counsel, he was put in a lineup and identified.  At trial, he was identified again.
Issue:  Should courtroom identifications be excluded from evidence when the accused was exhibited to the witnesses before trial at a post-indictment lineup conducted for identification purposes without notice to and in the absence of the D’s counsel?
Rule:  Counsel’s presence is, absent an intelligent waiver, a requisite to proper conduct in a post-indictment lineup; consequently, to be admissible, an in-court identification must be based on observations of the suspect other than the lineup identification.

Kirby v.  Illinois
Facts:  A person was robbed of his wallet.  After D was stopped for an unrelated offense, the police found the stolen wallet on him.  Then at the station house, D was identified by the victim prior to when D was indicted.  No lawyer was present and D had not asked for, nor been apprised of, his right to presence of counsel.  At trial, the victim described his identification of D.
Issue:  Does the Wage-Gilbert per se exclusionary rule extend to identification testimony based on a police station line-up that took place before the D had been indicted or otherwise formally charged with a criminal offense?
Holding:  No.  The per se rule does not extend to testimony concerning an identification that took place before initiation of criminal proceedings, because the right to counsel does not attach until prosecution begins.

Simmons v. US
Facts:  D was convicted of a bank robbery based on his in-court identification by witnesses who, prior to trial, identified D from a number of photos shown to them by police.  In addition, a search of a house, without a warrant, produced evidence that led to the conviction of a codefendant, Garrett, who moved to suppress seized evidence.
Issue1:  Will questionable police practices regarding pretrial photographic identification procedures always so taint an in-court identification as to constitute reversible error?
Rule1:  Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on the ground, only if, under the totality of the circumstances, the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
Issue2:  Is testimony given by a D at a suppression hearing that is given to meet the 4th amendment standing requirements admissible against him at trial on the question of guild or innocence?
Rule2:  When a D testifies in support of a motion to suppress evidence on 4th amendment grounds, this testimony may not be used against him at trial on the issue of guilt unless he makes no objection.

Neil v. Biggers
Facts:  D was convicted of rape.  Nearly 7 months after the rape, the victim identified D as her attacker in a show up where the police walked the D past the victim and at the victim’s request, had D say “shut up or I’ll kill you.”  The victim testified at trial that she “had no doubt” about her identification of D as the rapist.
Issue:  Is D’ due process rights violated here?
Holding:  Even though the show up was suggestive, the admission of the evidence does not violate due process if, under the totality of the circumstances, the identification is reliable.


Miranda v. Arizona
Facts:  D was picked out of a line-up by a victim and then questioned until he made an oral confession and signed a brief admission statement.
Issue:  Without a full warning of constitutional rights, are statements obtained from a D questioned while in custody admissible? NO
Rule:  A person must be warned of the right to remain silent, and that any statement made may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed, before any questioning takes place.  Otherwise his statements are inadmissible when the testimony is compelled by the police.
Dissent:  The 5th amendment requires a warning before interrogation begins has no significant support in the history of the privilege or in the language of the 5th amendment.

4 warnings must be given under Miranda
1)  right to remain silent
2)  anything said can and will be used against you in court
3)  right to consult with a lawyer and have a lawyer during interrogation
4)  if you cannot afford a lawyer, one will be appointed to you.

Edwards v. Arizona
Facts:  D was arrested and he invoked his right to counsel.  The next day, without providing counsel, the police reinterrogated D and gained a confession.
Issue:  Can the police reinterrogate an accused D in custody after he has clearly asserted his right to counsel even though no counsel has been provided?  NO
Holding:  When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that the accused responded to further police-initiated custodial interrogation even if he has been advised of his rights.  Furthermore, an accused who has expressed his desire to deal with police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

Exam Notes:
- under Edwards, the police have to stop questioning when the D asks for an attorney (they may not come back and question unless the D goes to the police himself and volunteers information).
- when dealing with trying to decide if police did not honor a D's right to silence under Miranda, you must use this test:  "Has the D's right been scruptiously honored?"  If so, then the police conduct will be held to be ok and if it is not, then the police action violated the D's 5th amendment right not to incriminate himself is violated.

Notes:  to decide whether you need to Mirandized or have Miranda warnings, you must first find whether the D is in custody and whether the police questioning or actions amount to an interrogation.  If so, then Miranda warnings must be given.
If you do not have either custody or interrogation, Miranda warnings do not have to be given.  Just because it is coercive environment, will not matter.

- for the 5th amendment to apply, the person must be “in custody.”  Voluntary questioning or police officer questioning at a traffic stop is not sufficient custody to allow D a 5th amendment right to be Mirandized.  Keep in mind that the person does not have to be under arrest for there to be custody, it only matters if the person is "de facto" under arrest like in the Royer airport case.  (Sufficiently deprived of their liberty is one standard that the court will use to determine if there was custody.  In addition, the court will use a reasonable person standard in the situation to decide if they think that there were under police custody that may be sufficient to find that there was actual custody)

Keep in mind regarding Edwards:  once a D under custody states that he wants a lawyer, the questioning must stop at that moment.  Only questioning can continue if the D voluntarily approaches and initiates a conversation with the police.
Test for Custody:  person is deprived of freedom in a significant way tantamount to an arrest.  (not what the police believe) when a reasonable person would feel that they are not free to leave like they have been arrested.
- holding someone for just a few minutes is not enough for general questioning (MN case where man chained to bedpost for 45 minutes was held not to be sufficient custody)


Oregon v. Mathiason
Facts:  D was called by police about 25 days after a burglary.  D voluntarily came into the police station to discuss the burglary, and the police told him he was not under arrest.  In the half-hour interview that took place, D confessed.  D was not Mirandized prior to confessing.  Because he was not under arrest, D was allowed to leave after the confession.
Issue:  Must a confession obtained while a person is not in custody or under arrest be suppressed under the 5th amendment if Miranda rights are not read?
Rule:  No.  Miranda only applies to custodial questioning.  Which means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

Berkemer v. McCarty
Facts:   D was stopped by a police officer for drunk driving which was a misdemeanor.  D then confessed his guilt to the officer without first receiving any Miranda warnings.
Issue1:  Does the 5th amendment require that Miranda warnings be given in misdemeanor cases?  YES
Rule1:  One subjected to custodial interrogation is entitled to Miranda warnings regardless of the severity of the crime.  However, one is not entitled to the warnings until an arrest actually takes place.  Questioning before an arrest, where an arrest would not be suspected, does not trigger the right to Miranda warnings.
Issue2:  Does the roadside questioning of a motorist detained pursuant to a routine traffic stop constitute custodial interrogation?  NO
Rule2:  Roadside questioning, without more, does not alone constitute custodial interrogation.


Rhode Island v. Innis
Facts:  D was arrested for shooting someone and the police officers then advised him of his Miranda rights.  However, as the officers were driving to the station, they discussed the fact that there were many handicapped children in the area and that they should try to find the gun so that one of the children would not find it and get hurt by it.  D, who overheard the conversation, then voluntarily showed the police where the gun was hidden.
Issue:  Does the practice that the police should know is reasonably likely to evoke an incriminating response from a suspect amount to interrogation?  YES
Rule:  The term interrogation under Miranda refers not only to express questioning, but also to any words or actions that the police should know are reasonably likely to elicit an incriminating response from the suspect.
Holding:  Here, it cannot be said that the D was subjected to the functional equivalent of questioning.  There is no evidence to suggest that the officers should have known that the respondent would suddenly be moved to make a self-incriminating response.  Functional equivalent:  will depend on what the suspect thinks.  Suddle compulsion does not opeate as interrogation.

Exam Hint
- general on the scene questioning is not interrogation (per Miranda).
- the fact that the police are getting extra information, not incriminating, does not matter to the court because some of the most innocent information may be used to incriminate someone.

Illinois v. Perkins
Facts:  An undercover agent posing as Perkins’s cell mate elicited incriminatory statements from him.  Perkins claimed the statements should not be admissible because the agent had not given him Miranda warnings prior to their conversation.
Issue:  Where an undercover agent elicits voluntary incriminatory statements from a suspect, are those statements admissible at trial?  YES
Rule:  Where a suspect is unaware that he is speaking to a law enforcement officer and gives voluntary consent, Miranda warnings are not required.

Exam Notes
- there is a public safety exception to the requirement of Miranda.

Border searches
-  in border searches, the court will find that there is sufficient custody for Miranda purposes and whether there is sufficient interrogation will depend on the facts in the case.

More Miranda

Exam Notes
-  there is no requirement for police to do a miranda unless they want to interrogate.  They do not have to do anything, unless they want to interrogate the D.
- voluntary answering Look at bottom of 637-638 and question 36D.  (difference between volunteered answers and voluntary answers).
- once a D asserts right to one cop in police department, the whole department is put on notice of this right whether or not they actually know.

Moran v. Burbine
Facts:  D waived his right to an attorney, but his sister retained a lawyer to represent him.  The lawyer called the police station and told them not to interrogate D until the next day.  D, ignorant of the lawyer’s attempts, answered questions asked later that same day.
Issue:  When D waives his fifth amendment rights, can the police invalidate that waiver if they misled a defendant’s attorney or failed to tell the defendant of a lawyer’s efforts to contact him?
Rule:  A waiver of 5th amendment rights is invalid only if police conduct deprives a defendant of knowledge essential to understand that nature of his rights and consequences of abandoning them.  Under Miranda, a defendant may waive his rights provided that the waiver is made voluntarily, knowingly, and intelligently.  Waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it determined by the totality of the circumstances.  In this case, we hold that events occurring outside the presence of a suspect have no bearing on his ability to knowingly, voluntarily, and intelligently waive his right to counsel under the 5th amendment.   We refuse to adopt a rule requiring police to inform a suspect of an attorney’s efforts to reach him.

Bryan v. State
- court found and adopted a more stringent rule that affords defendant’s more protection than the federal courts in last case in that a waiver cannot be found if the state prevents an attorney, who the state knows has been designated and retained to represent defendant, from rendering effective legal assistance to his client during custodial interrogation.
-  Delaware held that in order to waive the right to counsel, a defendant must be informed that his counsel has attempted or is attempting to render legal advice or perform legal services on his behalf.

Harris v. New York
Facts:  Without being mirandized, D made some statements when he was questioned by the police upon his arrest.  The prosecutor, at trial, asked D whether or not his earlier answers contradicted his testimony at the trial, attempting to impeach him.  The earlier statements were not admitted into evidence or given to the jury, but were merely used for impeachment purposes.
Issue:  May evidence obtained in violation of Miranda be used for impeachment purposes?
Holding:  YES, the statements may be used for impeachment purposes.

Doyle v. Ohio
Facts:  When defendant’s were arrested, they were Mirandized and refused to speak.  However, at their trial, defendants presented exculpatory testimony and the prosecutor sought to impeach this testimony by asking them whey they didn’t bring up the stories when they were questioned later/
Issue:  May a prosecutor impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest?
Rule:  The use for impeachment purposes of the defendant’s silence, at the time of the arrest and after receiving Miranda warnings, violates the due process clause of the 14th amendment.

Michigan v. Jackson
-  The issue in this case is whether the Edwards rule still applies to a defendant who has been formally charged with a crime and who has requested appointment of counsel at his arraignment.  The court held that the same rule does apply on the basis that the reasons for prohibiting the interrogation of an uncounseled prisoner who has asked for the help of a lawyer are even stronger after he has been formally charged with a crime.  The 6th amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a medium between him and the state.  In fact, after a formal accusation has been made, the employing of a cellmate, surveillance of conversations by third parties may violate the defendant’s 6th amendment right to counsel even though the same methods of investigation might have been permissible before arraignment or indictment.
-  We hold that if the police initiate interrogation after a defendant’s assertion of his right to counsel at an arraignment or similar proceeding, any waiver of this right is invalid.

Exam notes
- on the exam, you must do the 6th amendment analysis completely separate from the 5th amendment analysis.  (go thru each one and come to a conclusion on both - don't intermingle even if facts want you to).

5th amendment
- custody + interrogation
- suspect must be aware that he is dealing with the govt.  (uncover person getting info is not included in rule).
- prohibits custodial interrogation
- what crime does it apply:  all crimes
- how assert?  a clear and unambiguous request or statement (may be silence under Mosely) and (at arraignment for a different crime, it doesn't count - look at problem 34b) (Some state require police to inquiry further if D makes a little request or an ambiguous request for an attorney).
- effect of the assertion:  Edwards and Mosley (D has to initiate under Bradshaw or an attorney must actually be present (atty consultation is not enough) in Mimic to get past Edwards and in order to obtain a waiver.

- voluntary information supported by D requires that Miranda rights attach, if the information has been volunteered, no Miranda rights attach (to be volunteered, the police ask no questions and under voluntary; - they do)

6th amendment
-  formal judicial proceedings (arraignment, prelim hearing, first appearance, bail hearing, formal complaint) : indictment is not a formal proceeding.  (Beginning of adversarial proceedings)
- prohibits deliberately eliciting information (or attempts to and other critical stages or events like (line-ups). It is not taking blood, or taking photographs, etc.   HOWEVER, IT DOES INCLUDE UNDERCOVER POLICE OPERATIONS, unlike 5th amendment.
- what crimes:  crime specific
- how assert:  a request for counsel at arraignment or otherwise (no requirement for assertion, but if you do, things change) Use "Edwards" rule.  Police can ask for a waiver only up until the time the D has not asserted this right.
- effect of assertion of the right:  Edwards rule


- keep in mind that you do not have the right to an atty unless there is a formal proceeding under the 6th amendment

- knowledge of the D assertion of rights is "imputed" to the rest of the police department (one state actor to another).

1)  Can the state use the statements obtained in violation of Miranda to impeach?   YES (if you take the stand to tell another story, the state can cross exam ad used to impeach to show that you are lying not that you did the crime)
2)  Arrest - Miranda - Silence:  D later gives a great alibi:  Can you cross examine that the D was silent?  NO: to do so would be a violation of due process.
3)  Arrest - Silence - Miranda:  D later gives a great alibi:  Can the prosecutor use the silence against them?  YES:  in can come in to impeach the D because Miranda did not allow the D to claim silence as the exercising of the Miranda rights.
4)  Unlawful arrest - Statement - statement is suppressed a trial - defense witness testifies and the prosecutor wants to use the statement given by D to impeach the defense witness:  can it be used to impeach?  Court says NO!


Oregon v. Elstad
Facts:  Police officers went to D’s home to arrest D.  When an officer told D that he felt that D was involved in a crime, D replied that he was there.  This statement was not admitted into evidence.  After D was then read his Miranda rights, D waived them and made a full confession.
Issue:  Does an initial failure of police officers to administer Miranda warnings, without more, taint subsequent admissions made after a suspect has been fully advised of and waived his Miranda rights?  NO
Holding:  A suspect who has once responded to unwarned yet noncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the Miranda warnings.

- this is a different analysis when you have miranda problems and you have two statements, the first of which was voluntary but taken in violation of miranda.  Under the rule here, the second statement is still ok even though the first statement is excluded.

New York v. Quarles
Facts:  D ran into a grocery store after committing a crime armed with a gun.  Police officers caught up with him in the store and, after finding an empty gun holster on D, asked him where the gun was.  D revealed where it was before being read his Miranda rights.
Issue:  Is there a public safety exception to the requirement that Miranda warnings be given before a suspect’s answers are admissible as evidence?
Rule:  The need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the 5th amendment privilege against self-incrimination.

- public safety exception:  the police can ask certain question to protect the public.

Fruit of poisonous Tree
-  for constitutional violations - is the statement voluntary or compelled?  See Elstad.  If so, the statement is tainted and must be excluded.

Privilege against self-incrimination: Testimony
- no person shall be compelled in any criminal case to be a witness against himself.  The protection applies when the accused is compelled to make a testimonial communication that is incriminating.  The privilege protects an accused only from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature.

- Lewenski and her diary.

5th amendment (outside of Miranda for self-incrimination analysis)
1)  for there to be a violation, it has to be "testimonial" or communicative.  (Taking blood is not testimony as well as voice exemplar used to identify person, fingerprints are not either, sobriety test or even handwriting analysis)  (Is the test communicating anything or is it just the police obtaining evidence?).
2)  testimony has to be compelled.
- most of the time, documents which are subpoenad, are not considered compelled because no one forced them to write the document to begin with.  (contents of writings are not compelled).  Contents of business records are not considered compelled because the govt did not compel the creation of the documents.  Even though the govt is compelling the production of them, but this is not sufficient.

2 types of immunity
1) USE/DERIVITATIVE USE:  they can't use the thing that you have been forced to testify about, but can still prosecute you on other evidence.
2)  TRANSACTIONAL :  govt can't prosecutor for anything related to the testimony given.  (anything revolving around transaction - like the Lewinski case.)

Boatnight exception:  testimony where kid is and that it is compelled - allows for an exception:  under Byers case: 4 part test:   if the risk of incrimination is too insubstantial, if not intended to facilitate criminal confiction, not directed to a group suspected of criminal acitivity, and it does not require disclosure of inherent illegal activity.  Byers case involved a man who challenge a state stautue that require him to leave his name and license information after an accident - he alleged self-incrimination.

1)  grand jury subpoena?  (If they do not grant her immunity, they will commit a violation if they make her testify.)  Meets the 2 part test:  it is testimonial and is compelled.   (you do not need to be a target or a suspect). Rule: you can't ask her without giving her immunity.
2)  diary?  Can obtain through search warrant (need probable cause) and subpeona (which you do not need probable cause - the prosecutor just fills it out.)
(corporations do not have 5th amendment privileges).  However, because the contents of the diary are not "compelled," there is no privlege over the contents of the diary.  The 5th amendment provides absolutely no protection for the contents of private papers of any kind under Doe.  However, the production of the diary in front of the grand jury is compelled - however, is it testimonial?  Yes.  However, the prosecution can give use immunity so that any use will not be used against her.  However, the govt can give transactional immunity.

Pennsylvania v. Muniz
Facts:  Muniz was pulled over for drunk driving, given sobriety tests, and questioned later at the police station.  Videotapes of the questioning were admitted at trial, even though Miranda warnings were not given prior to the questioning.  Muniz claimed on appeal that the evidence was inadmissible under the 5th amendment because his statements were testimonial responses to custodial interrogation.
Issue:  Where a suspect makes incriminating statements before they are Mirandized, are these statements admissible into evidence?
Holding:  The 5th amendment protects suspects from forced testimonial responses to custodial interrogation, but not from compulsory release of real or physical evidence.  Testimonial evidence includes all questions that require the suspect to communicate an express or implied assertion of fact or belief.  If testimonial responses are not given in response to interrogation, but are volunteered, then the absence of Miranda warnings does not require suppression of the evidence.  However, testimonial responses are excluded.

US v. Doe
Facts:  Doe, the owner of several sole proprietorships, refused to comply with 5 subpoena requests which directed him to produce various business records.  Doe claimed that compelling production of the documents would violate his 5th amendment rights in that the act of producing would force him to incriminate himself.
Issue1:  Are the contents of the records privileged under the 5th amendment?
Holding1:  No, the 5th amendment only protects a person from compelled self-incrimination.  A subpoena that demands business records that have been voluntarily created does not compel testimony or compel a party to affirm the truth of the records sought.  Therefore, the contents of the records are not privileged.
Issue2:  Is the act of producing a business document privileged under the 5th amendment?
Holding2:  The act of producing documents is privileged under the 5th amendment and cannot be compelled without a statutory grant of immunity, because the act may involve testimonial self-incrimination.

- under this case, the 5th amendment privilege only applies to individuals and their private papers.

Self-Incrimination: Compulsion

Kastigar v. US
Facts:  Petitioners were subpoenaed to appear before a grand jury and were expected to claim 5th amendment privilege against self-incrimination.  The govt obtained a court order compelling them to testify under a grant of immunity.  Petitioners still opposed the order, claiming that the immunity afforded lesser protection that the 5th amendment.
Issue:  Whether testimony can be compelled by granting immunity from the use of compelled testimony and evidence received from it or whether it is necessary to grant immunity from prosecution for offenses to which the compelled testimony relates?
Holding:  Immunity from the use of and evidence received from it places the D in substantially the same position as if the witness had claimed the 5th amendment privilege.  Therefore, there is no requirement that the government give fully immunity from prosecution because that would be a broader grant than the 5th amendment and this is not required.

Baltimore v. Bouknight
Facts:  A woman refuses to provide information on where her child is after claiming the 5th amendment privilege against self incrimination.
Holding:  The court found that she cannot resist telling about the child, because the 5th amendment does not apply in this type of case.

- this defense is not constitutionally based.  It is based on the conclusion that Congress could not have intended to punish people who have been lured by the government to commit crimes they would not otherwise commit.
- test:  whether or not the defendant was predisposed to commit the crime.  The minority view is to look at the conduct of the govt agents in that if they have contributed too much to the crime, the defense is applicable.


Class Notes on Entrapment
-  it is a statutory defense, not a constitutional one.
-  people innocent if lured by the govt to commit the crime (persons otherwise innocent than the govt encouragement).
- ISSUE:  is the D predisposed to the crime and the focus is upon the D.  The govt must prove that the person would have committed the crime beyond a reasonable doubt that the D was predisposed to the crime.  Can bring in inadmissible evidence such as prior record, character, willingness, and knowledge.  All of this is determined by the jury and is a jury question.  If you are acquitted, there is no appeal by the govt because in order to do so would be double jeopardy.
(this is the subjective approach):  however on objective approach, the focus changes to the govt and whether the govt.’s action would intice a normal law abiding citizen to commit the crime.  (The affect is considered to a hypothetical individual and the decision is for the judge).  The third approach, is a constitutional approach through due process if the govt action is so awful that the govt cannot prevail.


Jacobson v. US
Facts:  The D was convicted for receiving child pornography through the mail.  The govt had made the D the subject of five uncover sting operations spanning 26 months, after procuring his name from the mailing list of a reputed pornography dealer.  The operation consisted of multiple attempts by the govt to explore the D’s willingness to order child pornography, including using fake organizations and a bogus pen pal.  The arrest came after the D was ordered a sexually explicit magazine depicting children which was offered to him by govt agents.  The D claimed that the govt entrapped him into committing the crime.
Issue:  What must the prosecution prove in order to refute an entrapment defense?
Holding:  When the govt has induced an individual to break the law, the prosecution must prove beyond a reasonable doubt that the d was disposed to commit the criminal act prior to first being approached by the police.  In this case, the D’s response to the govt.’s solicitations was not enough to prove that he was predisposed, prior to the govt.’s creating the predisposition to commit the crime.





















































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