Search And Seizure: A Case Study

I. ARREST, SEARCH, AND SEIZURE (FOURTH AMENDMENT)
A. PROTECTED FOURTH AMENDMENT INTERESTS
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches without a warrant
Protects people, not places
Protects tangible and intangible objects
To determine if there is a search, look to if there is a reasonable expectation of privacy (Katz test)
BASIC RULE: No searches without a warrant BUT the first question for analysis is “what is a search?”
If it is a protected interest then it is a search
KATZ: the protected interest was the reasonable expectation of privacy
If the search is involving a “protected interest” then it IS, constitutionally speaking, a search
If it is NOT a search it
is NOT protected
KATZ:
What a person knowingly exposes to the public, even in his own home or office is not subject of Fourth Am protection.
If you relinquish the expectation of privacy then it is not a protected interest under the 4th amendment and so it is not considered a search.
REASONABLE EXPECTATION OF PRIVACY TEST:
(1) subjective: did the opponent take steps to show that they expected privacy and demonstrate/manifest the desire for privacy
(2) objective: that the expectation be one that society is prepared to recognize as reasonable (was it reasonable in those circumstances that privacy was expected)
Evaluating Privacy Expectations:
Place where Defendant was observed
Defendant’s conduct
Government’s conduct
AFTER KATZ:
4th amendment protects both tangible and intangible things such as conversations, people, and places
GUESTS
dwellings and protected guests: temporary housing (hotel rooms) and houses/apartments are constitutionally protected areas and only the validated privacy interest of anyone legitimately on the premises of a dwelling is protected
How do we know if the guest has a reasonable expectation of privacy?
Look to the relationship between the person and the HOME not the owner of the home (how long o they stay there, do they have a key to the property, etc)
Also, greater expectation of privacy in certain parts of the home like the bathroom versus the kitchen so look to where the contraband was found.
PROPERTY
US v. OLIVER:
There are three types of land: house, curtilage, open fields (no reasonable expectation for open fields)
CURTILAGE: yard and fringe of the house and is land not connected to an intimate function of the housedriveway and sidewalk are open fields (public or private)
HOLDING: Something observed in an open field is not a search because there is no expectation of privacy because anyone can observe it
You do not have a reasonable expectation of privacy on privately owned land just because it is private because anything flying over the land without fences can see it
DUNN FACTOR TEST TO DETERMINE IF IT IS CONSIDERED CURTILAGE:
(1) proximity of the area claimed to be curtilage to the home
(2) whether the area is included within the enclosure surrounding the home
(3) the nature of the uses to which the area is put AND
(4) the steps taken by the resident to protect the area from observation by people passing by (like a fence/gate that obstructs vision) very fact based analysis
CALIFORNIA v. GREENWOOD:
The police cannot be reasonably expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public.
What a person KNOWINGLY exposes to the public, even in his own home or office, is not subject to 4th amendment protection
A person has no legitimate expectation of privacy in information/property that he VOLUNTARILY turns over to third parties (like garbage left on the curb)
LUGGAGE SURVIELANCE
Bond v. US: Police officers cannot squeeze/manipulate your luggage to feel what you have in there BUT they may touch your luggage (think flying-gate check to luggage deliverers-they have to touch it)
What ordinary people can do to your luggage the police can do it (pick it up, weigh it)
If the police are manipulating your luggage then they are searching it
ADVANCED TECHNOLOGY
Canine Sniffs
Luggage: lawfully seized luggage in a public area can be subjected to a canine sniff without it constituting a search/violating reasonable expectation of privacy.
Car: Canine sniffs by TRAINED narcotics dog around the exterior of a car is not a search and so it does not violate the reasonable expectation of privacy.
If the suspect defendant is legitimately stopped by the police then they can do a canine sniff.
Do not need reasonable suspicion to do the sniff and if there is a positive result then it leads to probable cause to search and seize the contraband.
ARGUMENTS: dog is not properly trained, false result and police just said it was positive
Ground Tracking
A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. (US v. Knotts)
No expectation of privacy is extended to the VISUAL observation of the automobile. Even though in Knotts they used a tracker, the visual surveillance from public places along the route of the automobile would have sufficed to reveal the location to the police so it did not violate 4th amendment. (Knotts)
Cannot use a tracker/beeper if it is taken into a destination inside the home as this violates reasonable expectation of privacy (US v. Karo).
Aerial Surveillance
California v.
Ciraolo: Court held that officers made no intrusion upon a homeowner’s reasonable expectation of privacy (not a search) by flying an airplane at 1,000 feet over homeowner’s curtilage, using naked eye surveillance to spot marijuana growing in the air since it was a public vantage point like a public thoroughfare. (public could see it so police can see it without violating)
TAKEAWAY: What an ordinary person can do, the police can do and it is not a search.
NEW TECHNOLOGY
Kyllo v. US: Police use a thermal imaging device on a home to see if there is a greenhouse. Court holds that obtaining by sense-enhancing technology any information regarding the INTERIOR of the home that could not have otherwise been obtained without physical intrusion into a constitutionally protected area constitutes a search—at least where the technology in question is not in the general public use.
Where the government uses a devise that is not in a general public use, to explore the details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant
Heat emissions are more like conversations (Katz) than aromas.
B. SEARCH
WARRANTS
WARRANT REQUIREMENT
Searches conducted outside the judicial process without prior approval by judge or magistrate (warrantless searches), are per se unreasonable under the 4th—subject only to a few specifically established and well-delineated exceptions (Katz)
A warrant assures the citizen that the intrusion is authorized by law, and that it is narrowly limited in its objectives and scope.
A warrant also provides the detached and neutral scrutiny of a neutral magistrate, and thus ensures an objective determination whether an intrusion is justified in any given case.
PARTICULARITY REQUIREMENT:
2 components that an applicant must have to obtain a warrant (US v. Grubbs):
Particularity of place to be searched
TEST: Steele v US—it is enough if the description is such than an officer with a search warrant can with reasonable effort ascertain and identify the place intended.
Particularity of things to be seized
TEST: Stanford v. Texas—if the language in a search warrant description is so imprecise as to have an indiscriminate sweep the search warrant is constitutionally intolerable.
Mistakes in particularity:
Maryland v. Garrison:
FACTS: Officers searched the wrong apartment on the right floor of the building by mistake and the warrant was upheld. (lack of particularity)
The validity of a warrant must be assessed on the basis of information that the officers disclosed, or had a duty to discover and to disclose, to the issuing Magistrate. (no hindsight)
An error in the description of the place to be searched or the things to be seized in a search warrant does not render the warrant defective provided that other descriptive information in the warrant established with reasonable certainty the place to be searched or the things to be seized. there is this good faith presumption when dealing with warrants and that reasonable mistakes are valid and a balance of fairness and a crime actually happening and they are not going to suppress info because of a typo
CHALLENGING WARRANTS
Defense counsel may challenge the lawfulness of a search based upon insufficiency of the supporting affidavit/warrant in two ways:
(1) facial challenge
Defense can argue that there is no probable cause to support the warrant because the facts alleged do not add up to probable cause even assuming that all the facts are true (defense is not contesting the facts)
(2) Franks Challenge/substantive challenge
Defense can challenge the truthfulness or accuracy of the facts
Have to allege that the affiant included facts that he knowingly and intentionally, or with reckless disregard to the truth to prove probable cause
Have to prove some sort of mens rea, some sort of intent
Franks Hearing
Is there a substantial showing of intent
Can the warrant still stand
Franks v. Delaware:
Franks Hearing:
(1) must show substantial proof of reckless statement
(2) if you take out the portion then there is no more probable cause in the remaining portion of the warrant
ANTICIPATORY WARRANT
An anticipatory warrant is a “warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place” (United States v. Grubbs-guy had porn delivered by postman, warrant wasn’t valid until package was delivered)
United States v. Grubbs:
FACTS: Grubbs bought porn and had it send to his house and officers got a warrant that was to be executed “until and unless” the porn arrived at his house.
HOLDING: Anticipatory warrant is valid as long as there is probable cause that contraband/evidence of a crime/fugitive will be on the described premises when the warrant is executed.
For an anticipatory warrant to comply with the Fourth Amendment’s requirement of probable cause, two prerequisites of probability must be satisfied:
(1) if the triggering condition occurs there is a fair probability that contraband or evidence of a crime will be found in a particular place AND
(2) there is probable cause to believe the triggering condition will occur
WARRANT EXECUTION—KNOCK AND ANNOUNCE
Part of reasonableness inquiry (Wilson v. Arkansas)
FOUR REQUIREMENTS:
(1) Knock
(2) Announce police presence
(3) announce police purpose (we have a search warrant)
(4) some sort of delay between the knock and announce and entry
Totality of the Circumstances Test
At the time of execution
Look at how long it will take suspect to destroy evidence
Look at how much a danger the suspects pose
EXCEPTIONS (No-knock entrance) Must have reasonable suspicion that knocking would create the:
Risk of evidence being destroyed (statute of Lincoln not possible but drugs is possible to destroy)
Risk of substantial physical harm to officers * Richards v. Wisconsin
FACTORS OF REASONABLE TIME DELAY (US v. BANKS)
Totality of the circumstances
The facts known to the police AT THE TIME are what count in judging reasonableness waiting time example: you heard the shower running and think that they are destroying something or the sound of someone hitting the ground which indicates danger--police can take everything into consideration
C. PROBABLE CAUSE
LEVELS OF PROOF
REASONABLE SUSPICION: 10-15% that it was happening---you need specific and particular facts that you can make rational inferences from to see if there is criminal activity or danger for reasonable suspicion--THIS IS WHAT YOU NEED TO FRISK SOMEONE PURSUANT TO A SEARCH WARRANT and this is what you need to not delaying a long time during knock and announce
PROBABLE CAUSE: judges say that 35-40% certainty is probable cause (more likely than not BUT that is not what happens because we are looking at 35-40% probable) working definition: reasonable RELIABLE facts and circumstances would suggest to an officer of reasonable caution that a crime has been committed and the thing or person is connected to it
BEYOND A REASONABLE DOUBT: 95% certain that something occurred
PREPONDERANCE OF THE EVIDENCE: just shy over the 50% line that facts exists
CLEAR AND CONVINCING: 75% certain something happened/that facts exists
HUNCH: not constitutionally permissible (low certainty that facts * exist)
PROBABLE CAUSE
Define: reasonable RELIABLE facts and circumstances would suggest to an officer of reasonable caution that a crime has been committed and the thing or person is connected to it or the contraband is located in that particular place
All reasonably reliable facts and circumstances suggest to an officer of reasonable caution that the particular thing or person will in fact be seized in the place to be searched (Carroll)
Probable cause can become stale (no rigid time limit though)
Carroll v. United States
RULE: Probable cause is a totality of the circumstances test
Maryland v. Pringle
FACTS: Pringle was pulled over for speeding and cocaine was in the car and all people in the car denied ownership so the officer arrested all three people in the car.
HOLDING: There was probable cause to arrest all three people in the car because there was probable cause that a felony occurred and there was reasonable inference that any or all three occupants had knowledge of or owned the cocoaine
INFORMANTS
HearsayDraper v. US: officers can use hearsay in a probable cause hearing because it is about searching and not proving guilt beyond a reasonable doubt AND magistrate has discretion (neutral third party).
Illinois v. Gates:
Spinelli-Aguilar 2 Prong Test:
(1) Applicant must set forth any of the underlying circumstances necessary to enable the magistrate independently to judge the validity of the informant’s conclusion (basis of information)
(2) the affiant-officers must support their claim that their informant is credible or his information is reliable (reliability/veracity/creditability)
OVERRULED
NEW TEST:
Totality of the circumstances BUT you still use two prongs but a weakness in one can be balanced by a strength in the other
Basis of knowledge: did the informant demonstrate who they knew the information
Veracity: reliability and creditability—they are truthful and are prone to telling the truth (past experience) and they know what they are talking about (relationship to the suspect) * new test mixes these together to see if there is probable cause
EXAMPLE: one time anonymous tipster would fail under A/S test but if police work can corroborate the tip then it is reliable
D. EXCEPTIONS TO WARRANT REQUIREMENT (1) PLAIN VIEW
Two requirements of plain view:
(1) officer must legally be present and conducting a legal search AND
(2) the incriminating nature of the evidence or contraband must be immediately apparent (Horton v. CA) immediately apparent: TX v. Brownwhere there is a known procedure or container that is used for a specific type of crime then the police can use that inference to get probable cause and seize it (it is something so prevalent that it is immediately apparent that criminal activity is occurring)
EXAMPLE: use of heroin balloons
Manipulating items: officers cannot move or manipulate items to confirm it as contraband because this violates immediately apparent factor (if you have to move it then it is not immediately apparent)
Officers subjective view does not matter (so if they are really looking for drugs when they pull someone over as long as they are legally present and immediate apparent then their subjective thoughts do not matter) (2) WARRANTLESS ARRESTS
Felony: if the officer has probable cause to believe that a crime was committed then they do not need a warrant to arrest and it doesn’t matter if a crime occurred in their presencedon’t need a warrant
Misdemeanor: must have occurred in officers presence in order to have a warrantless arrest and if it did not occur in their presence then a warrant is needed for arrest
If it does occur in officers presence then officer has discretion to arrest or ticket * US v. Watson
GENERAL RULE: Arrest or felony or misdemeanor committed in officer’s presence no warrant is required BUT if officer wants to arrest person in their own home they need a warrant (whether or not occurred in their presence) UNLESS they are fleeing or immediate harm/exigent circumstances.
Use of deadly force:
Reasonableness test: must pose a threat of serious physical harm to officers or public in order to use physical force
(3) SEARCH INCIDENT TO LEGAL ARREST
When the police make a legal arrest, they have the right to make a search incident to arrest. (US v. Watson)
Must have probable cause to arrest BEFORE search occurs (don’t have to arrest first but at least must have probable to make the arrest before the search occurs)
Courts have upeld SILA even if they are handcuffed.
Maryland v. Buie: incident to arrest an officer may conduct a limited protective sweep of those areas of a house in which he reasonably believes a dangerous person may be hiding
Example: you go to execute a warrant of a person inside the house and you know that there are others present and the crime for the arrest is armed robbery—can search the places where the two roommates might be hiding
The scope of the search must be strictly tied to and justified by the circumstance which rendered its initiation permission (Chimel v. CA)
RULE: Without a search warrant, when officers arrest someone, they can search the suspect and the GRAB AREA of the arrestee and as long as the search and the arrest occur around the same time then it is permitted (probable cause must be present) (Chimel)
AUTOMOBILES IN SEARCH INCIDENT TO LEGAL ARRESTGANT:
Either unsecured arrestee must be within grab area of car (so if you are arrested on the side of the road by your car then your car can be searched) OR where there is reason to believe that evidence related to the arrest is to be found in the vehicle (passenger compartment can be searched but not the trunk because compartment is grab area and trunk isn’t)
Crime for what you are arrested for prong: unrelated to grab area and police can perform a search incident to legal arrest OF YOUR CAR (not home) if it is reasonable that evidence of the crime related to your arrest is in the car (and this can be done even if suspect is handcuffed and in the back of the police car)
TAKEAWAY: Can do search incident to legal arrest if the area is in the unsecured person’s grab area (in their home) (Chimel) OR if it is an arrest by your automobile then grab area (must be unsecured—no trunk) or if there is reason to believe evidence related to the crime is in the car (no trunk) (Gant)
(4) BOOKING SEARCHES
Police do not need probable cause for a booking search because it is not an investigation and instead it is for public and officer safety.
Inventory searches of personal items are permissible without warrant.
(5) INVENTORY SEARCHES
If police follow standard procedure and the car is legally impounded they can search it and do not need a warrant or probable cause (Colorado v. Bertine)
(6) AUTOMOBILES EXCEPTION
RULE: When the police have probable cause to believe that an automobile contains contraband or evidence of a crime, they may search the vehicle without a warrant.
RATIONALES FOR AUTO EXCEPTION:
Exigency
Diminished expectations of privacy:
Use of public thoroughfares (plain view)
Ability to view contents from public areas
Pervasive registration, inspection and licensing laws and regulation
Ability of authorities to impound car
Automobileinherently mobile and there are regulations that decrease expectation of privacy (CA v.
Carney)
Probable cause must be specific to what the officers want to searchautomobile exception requires probable cause and the scope of the search is tied to the scope of the probable cause and the size of the evidence
CA v. Acevedo: Police my search an automobile and any containers within it when they have probable cause to believe contraband or evidence of a crime is present anywhere it the car (so you think there is heroin in the car then you can search the car) BUT police may only search where such items may be hidden so probable cause about the container is required
EXAMPLE: so if you are searching for illegal aliens then cannot search in a briefcase BUT if looking for heroin then can look in briefcase or any place heroin could fit—but if you have probable cause that they stole a wide screen TV but you just have a hunch they have heroin you can only look in containers big enough to hold a TV so a small duffle bag cannot be searched even if it is in the trunk which could hold a TV so you can only search the
trunk
(7) CONSENT
Any constitutional right can be waived so a person can give consent to officers to search them, their home, or their automobile.
Consent must be given voluntarily and person must have authority to consent.
The State has the burden to show that the consent was freely and voluntarily given (Schneckloth v. Bustamonte)
Factors in determining voluntariness (totality of the circumstances):
Whether or not they know they have a right to refuse to consent
Language barrier between officer and person
Express or implied threat (officer holding a weapon, lots of officers present, etc)
Age (minors might not know or can be easily swayed) or mental state (drunk, mentally ill)
Characteristics of the person consenting: prior experience of the person, education, race, how many officers were present
Deception involved
How many times the officer asks you
Refusing to consent does not create probable cause BUT refusal PLUS other factors might like if you are in a bad neighborhood, acting suspicious, and have money pouring out of your pocket BUT generally exercising a constitutional right does not create probable cause.
Scope of consent search:
Person can give limited or conditional consent and it is the duty of the person giving the consent to expressly and affirmatively say what those limitations are
Authority:
Must have actual or apparent authority in order to give consent
Actual: you own the property
Apparent authority: totality of the circumstances an what a reasonable officer would perceive at the moment
Landlordsmaybe apparent authority depending on whose name is on the mailbox or only actual authority if the lease says we will let police in for criminal activity
CO-OCCUPANTGeorgia v. Randolph: police cannot search a shared dwelling without a warrant over the expressed refusal of consent by a physically present person.
Where the person has common authority (mutual use of the property) AND they are physically present AND they are objecting to consent at the time of the search then their objection overrules the consent to search as to themselves
Physically present: arrested and sitting in the back of a police car is not present
Consent to search as to themselves: can only search common areas and the individual who consented can have his own areas searchedof they find anything then it only because admissible against the person who consent but not against the person who objected
ANALYSIS: Consent, authority, conflicting consent
(8) EXIGENT CIRCUMSTANCES
The police can enter a home without a requirement in three situations as long as probable cause exists:
Hot pursuit
Destruction of evidence
Emergency help all based on an objective standard—if a reasonable officer looking at the situation sees exigent circumstances then this exception kicks in
Scope of search is limited to the reason the police entered
If there are exigent circumstances then the police are lawfully present and other exceptions may kick in (like plain view)
HOT PURSUIT
Police may enter a home without a warrant when in (1) immediate and continuous pursuit of a (2) dangerous felon (Warden v. Hayden)
Doesn’t have to be a long chaseusually just movement from a public space to a private space is sufficient (US v. Sanatana)
Minnesota v. Olson: a warrantless intrusion may be justified by hot pursuit of a fleeing felon, or imminent destruction of evidence, or the need to prevent a suspect’s escape or the risk of danger to the police or other persons inside or outside of the dwelling.
DESTRUCTION OF EVIDENCE
Officers may search and collect evidence without a warrant if there is the risk of destruction of evidence but the search may not shock the conscious of the court (torture, etc).
Rochin: pumping stomach is too much and violates 14th amendment
Balance the need of the government intrusion and the individual rights
Schmerber v. CA: taking blood sample does not violate 14th amendment because it was done by a medical professional in a hospital and in accordance to medical protocol and BAC levels fade fast so need of intrusion was great and intrusion was low because it was done by a medical professional, etc so it was reasonable
EMERGECNY HELP
When there is probable cause that there is an emergency situation then police may enter without a warrant (Brigham City v. Stuart)
It doesn’t need to be a life threatening emergency and there only needs to be probable cause that aid would be help (and not necessarily necessary) (Michigan v. Fisher)
(9) STOP AND FRISK
Terry v. Ohio
Stop: must have objective reasonable suspicion that criminal activity is afoot
Frisk: must have objective reasonable suspicion that suspect is armed and dangerous
Outer clothing onlyif feel something that is weapon then can go into pockets and get it---ONLY FOR WEAPON (if officer feels a rock of crack cannot go into pockets—only can for something that can used as a weapon)
However, if they frisk you under Terry and feel a marijuana pipe or smell marijuana then it has shifted from reasonable suspicion to probable cause so they have probable cause for arrest and then can search you under search incident to legal arrest
Reasonable suspicion: must point specific and articuable facts from observations experience of police officer does come into effect
BALANCEtest for reasonableness of the stop and frisk
Must balance need to search v. invasion
NEED TO SEARCH
Crime prevention and detection
Protection of police and others from armed and presently dangerous people
INVASION
External search of garments that is less than a full search
Brief intrusion upon sanctity of the person
SCHOOLS
NJ v. TLO
Modifies Terry
STOPS
Terry: for a stop there must be reasonable suspicion that criminal activity is afoot
School administration: reasonable suspicion that a student violated a school rule or law
FRISKS
Terry: reasonable suspicion that person is armed and dangerous
School administration: related to the violation and not about armed and dangerous so only requirement is that the frisk must be related to the violation alleged we allow this different standard because it is not about investigation and instead about protecting and maintaining order n schools
Safford Unified School District #1 v. Redding
Search may not be excessively intrusive in light of the age and sex of the studentno strip searches of a 13 year please!
A school official searching a student is entitled to qualified immunity where clearly established law does not show that the search violated the 4th amendment.
SEIZURES (a Terry Stop is considered a 4th amendment seizure)
A Terry Stop and an arrest are both considered seizures but for a Terry Stop only reasonable suspicion is required and probable cause is required for an arrest. There also is consensual encounters which require nothing. 4th amendment protection kicks in when it is a seizure (so it cannot be unreasonable)
You assess whether it was a Terry Stop, a seizure or a consensual encounter by the totality of the circumstances.
US v. Mendenhall: Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred.
What is required for a seizure?
Whether a reasonable person would believe that they could leave or not (freedom of movement is restrained)
FACTORS for if a reasonable person felt free to leave (totality of the circumstances): Show of force, if officers were armed, threats of force, withholding property, physical touching of the defendant (holding elbow), number of officers, if they have the authority to move you from one place to another (obstruction of movement, movement to another area), length of encounter, notice of right to refuse
TWO WAYS
(1) actual physical force
(2) restraint on liberty through a show of authority
Test for show of authority: objectivenot whether the citizen perceived that he was being ordered to restrict his movement but whether the officer’s words and actions would have conveyed that to a reasonable person (Hodari)
Bostick and Delgado: must be a police show of authority or physical force that makes a reasonable person feel like they cannot leave and if other factors makes them feel like they can’t leave (like being on a bus) then no 4th amendment violation.
Hodari
A suspect fleeing from a police officer is not considered seized under the 4th amendment and you are only seized when the office has custody of you needs to be actual force or show of authority for it to be a seizure
If fleeing suspect throws contraband while fleeing then plain view comes into play.
Stop and Frisks must be temporary and last no longer than is necessary to effectuate the purpose of the stop. (FL v. Royer)
Statements given during a period of an ILLEGAL seizure are inadmissible (even if they are voluntarily given)
You can have an effective arrest (probable cause is required) when you pick someone up in a police car and say that you want them to come to the station for questioning, if you take someone’s fingerprints if they are transported by police to a place of police authority
Basically, cannot bring you to the station under reasonable suspicion and must have probable cause
STOP AND ID
These constitute as a Terry Stop.
When an officer is conducting a Terry stop they can demand from suspects their name and/or ID as long as the initial stop was reasonable (Hibel)
If they stop you with reasonable suspicion and ask for your ID and you don’t have it on you then they can reasonably detain you until they confirm your ID
Passengers in car: officers can ask for their IDs too—the reasonable suspicion applies to the car at a whole
PROTECTIVE SWEEPS
Protective sweep: equivalent of a terry frisk for a houseneeds reasonable belief where a dangerous person could fit are allowed to be searched (Maryland v. Buie—Red jumpsuit case)
Usually only grab area if arresting someone in their home BUT if there is reasonable suspicion that a dangerous person is in the home then the home can be searched where a person could fit
This is for officer safety (so governmental need of safety outweighs suspect’s intrusion)
Plain view doctrine and other exceptions may apply * EXAMPLE: Warrant is for an elephant which wouldn’t be in a bathroom so you can’t search there BUT a person could be in the bathroom so MD v. Buie exception would get you into the bathroom so that you can search for people because a person could fit in the bathroom
DETAINING WHILE SEARCHING
Officers executing a search warrant for contraband may detain the occupants of the premises while a proper search is conducted (LA County v. Rettele)
In weighing whether a search of a person is reasonable the detention must represent only an incremental intrusion on personal liberty when the search of the home has been authorized by a valid warrant.
Balance against preventing flight and minimizing risk of harm to officers and facilitating orderly search
While executing a search warrant, officers may take reasonable action to secure the premises to ensure their safety and the efficiency of the search (LA County v. Rettele)
Unreasonable actions: use of excessive force, restraints that cause unnecessary pain, restraints used for a prolonged and unnecessary period of time
INVESTIGATORY SEIZURES OF PROPERTY
Profiling: profiling is only constitutional if race is only one factor and there is evidence and indicators
An investigative detention of luggage is evaluated under the same standard as an investigative detention of a person (US v. Place)
By restraining the property you may be restraining the person so Terry applies.
A canine sniff of luggage does is not intrusive and does not constitute a search under the 4th amendment.
Terry applies for the temporary seizure of luggage and so the same standard is given to luggagemust have reasonable suspicion that contraband is located in luggage
The officer can detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope and duration. (Place) the duration of the seizure is important to the balancing test of intrusiveness v. interests
RULE: Luggage may be temporarily held by law enforcement by at an airport for the purpose of subjecting it to a canine sniff bit a detention of 90 minutes has been deemed excessive and unreasonable. (US v. Place)
Variation of Terryperson, luggage, home (protective sweep), and effective arrest (effective arrest is when you have the elements of an arrest and probable cause is neededbasically restraint on freedom of movement of the degree associated with a formal arrest)
(10) BORDERS
A FEDERAL customs officer at a border can search an automobile based on a hunch.
They can search the passenger compartment, request ID, remove a piece of the car even if it makes it non-functional, x-ray or to hold you for 48 hours without even reasonable suspicion as long as it is at a border.
Body cavity searches: officers need a clear indication of contraband before doing a body cavity search at a border (new standard than probable cause or reasonable suspicion)
(11) SPECIAL NEEDS
Standard: special needs cases do not impose a uniform standard of review
There is just a lesser standard so if the regular standard is probable cause then for a special needs for similar situation you do a lesser degree like reasonable suspicion and it is a balance test—the search can be done without a warrant if the need outweighs the intrusion
A special needs search can be considered unconstitutional if it is determined that it is too intrusive over the need.
DRUG TESTING
Special needs exception generally involves (1) public health and safety issues and (2) when it is divorced from law enforcement purposes and interests (Ferguson v. City of Charleston)
Balancing test neededneed v. intrusion
DISSENT: Compare these to trash cases—you are technically disposes of your urine/blood samples to a third party and once you dispose to a third party police can take it so it is not a search by the police
RAODBLOCKS
Police may not erect a roadblock to find evidence of specific crimes under the special needs exception.
Special needs exception cannot be motivated by criminal investigation purposes (City of Indianapolis v. Edmond)
When police can stop under road blocks
Purpose other than law enforcement/investigation
A law enforcement purpose so long as the purpose stopped is not the suspect of a prior crimes
Sobriety checkpoints
Information checkpoints
Terrorism checkpoints
Illegal alien checkpoints
Balancing testneed of government v. intrusion (usually a 5 minute stop)
Narcotics checkpoint is not allowed but sobriety checkpoints are because in narcotics checkpoints there is less governmental need (they are not as successful and drugs are harder to get than alcohol) and the intrusion isn’t severe but the need is really weak and the primary purpose is criminal investigation where sobriety checkpoints are more about public safety.
It matters if the person being searched under special needs is the target of law enforcement purposes.
Think about if there was a checkpoint and then other exceptions can kick in—plain view, if arrested for DUI then search incident to legal arrest (with Gant too because it is by a car), consent, exigency, stop and frisk (if reasonable suspicion)
E. EXCLUSIONARY RULE
Exclusionary Rule
The exclusionary rule precludes the state from using evidence seized in violation of the defendant’s constitutional rights.
JUSTIFICATIONS OF EXCLUSIONARY RULE
(1)Deterrence
It protects citizens through deterrence. (Mapp v. Ohio)
Deterrence is about balancing the costs and benefits
Benefits: general deterrence of unconstitutional police activity and preservation of judicial integrity
Costs: exclusion of relevant evidence from fact finder impedes truth finding, societal disrespects for law and judicial system, tolerance of future violations of law
(2) Judicial Integrity we as the government must follow their own laws otherwise they are not a democracy and it is about integrity of the system
The exclusionary rule mandates that evidence obtained from an illegal arrest, unreasonable search, or coercive interrogation must be excluded from trial. Under the fruit of the poisonous tree doctrine, evidence is also excluded from trial if it was gained through evidence uncovered IN THE illegal arrest, unreasonable search, or coercive interrogation that occurred.
Mapp v. Ohio: exclusionary rules applies to state and federal courts
Knock and Announce: exclusionary rule does not apply to knock and announce violation because knock and announce is not about privacy being protected and instead about safety so even if there is a knock and announce violation only then exclusionary rule does not apply and evidence will be admissible
Fruit of the Poisonous Tree Doctrine
The exclusionary remedy not only applies to evidence obtained as a direct result of a constitutional violation but also to evidence INDIRECTLY derived from a violation and that is what the fruit of the poisonous tree doctrine is. kind of like “but for”
Fruit of the poisonous tree doctrine: lets you know what evidence is to be excluded under Exclusionary rule
4th, 5th, and 6th amendments are covered (so searches, arrests, Miranda violations and Massiah violations) purpose of this rule: preventing the police from being in a better position by illegal action (Cannot benefit from illegal conduct)
THREE EXCEPTIONS TO FRUIT OF POISONOUS TREE:
(1) inevitable discovery doctrine evidence WOULD have been discovered eventually even if the unconstitutional action hadn’t occurred.
If the police had continued with their investigation they would have had the building blocks to get the evidence without the use of the unconstitutional conduct. (Nix v. Williams)
If police would have ultimately found the evidence through lawful means then deterrence rationale is little (cost and benefits) and evidence should be allowed (Nix)
(2) independent source evidence WAS discovered through an independent source other than the unconstitutional actions
EXAMPLE: think good cop bad cop—bad cop is beating everyone up to get info (unconstitutional) and good cop is doing good things like asking sources and investigating and at the same moment both of the cops figure out where the evidence is—there is an independent source for the discovery of the evidence (3) attenuation define: purged the taint—the link between the unconstitutionally action and the discovery of the evidence is so thin that the evidence has become purged of the initial taint.
Factors to consider for attenuation:
Miranda warnings, temporal proximity of the arrest and confession, presence of intervening circumstances (like speaking with counsel, family, something breaks the link between the conduct and evidence), the purpose and flagrancy of the misconduct (good faith)
Miranda warnings alone are usually not enough for attenuation (Brown v. Illinois)
If it is a statement that is to be suppressed look to see if it was voluntarily or spontaneously given
Must do attenuation analysis for each piece of evidence
Good faith Exception to the exclusionary Rule
Good faith requirement requires that a police officer OBJECTIVELY believe that he is not acting illegally (US v. Leon)
Good faith is for when a warrant is later declared invalid and not for warrantless searches.
Standard: whether reliance on the warrant was objectively reasonable
Reasonable/objective officer is what a reasonable well trained officer would look and this warrant and think that it was valid to rely on
RATIONALE: the rationale is that as long as an officer is acting in good faith then there is nothing to deter
Costs: excluding evidence
Benefit: not really because there is nothing to deter * there are no benefits produced by suppressing the evidence obtained in objectively reasonable reliance on a warrant later invalidated and the costs of excluding the evidence does not outweigh the benefits
Officers acts must be flagrant in order for good faith exception to not apply—police conduct must be deliberate
Good faith does apply for negligence—negligence does not invoke the exclusionary rule
Herring: when you are dealing with a warrant you have to have some deliberate conduct for the exclusionary rule to apply
Groh: Evidence seized pursuant to a warrant with a typographical error was excluded under and the good faith rule did not apply
FOUR EXCEPTIONS TO GOOD FAITH
(1) magistrate completely abandons judicial rule and will sign off on everything
(2) Where affiant knows it is false (magistrate is deliberately mislead or affiant has a reckless disregard for the truth)
(3) where there is an overwhelming facially deficiency of the warrantwarrant is not particularized or specified or it is too vague or broad (like place to be searched or things to be seized is excluded)any reasonable officer can look at the warrant know it is unconstitutional
(4) where there is no evidence presented to the judge about probable cause
II. CONFESSIONS, STATEMENTS5th, 6th, and 14th AMENDMENTS

5th amendment is about coercive environment and 6th is about guaranteeing a fair trial and right to counsel and it is about assistance and not coercion
Four categories of Defendants:
Charged defendants in custody5th, 6th, and due process
Charged defendants not in custody6th and due process
Non-charged defendants in custodyMiranda and Massiah
Non-charged defendants not in custodydue process rights
A. MIRANDA5th AMENDMENT
Miranda extended the privilege against self-incrimination to custodial interrogations.
Four Miranda Warnings:
(1) right to remain silent
(2) anything you say can and will be used against you in court
(3) right to counsel
(4) one will be appointed to you if cannot afford an attorney
In order for Miranda to apply you have to be (1) in custody (or effective arrest) and (2) you have to be interrogated
CUSTODY
Custody inquiry
(1) what were the circumstances surrounding the interrogation AND
(2) given those circumstances would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave (OBJECTIVE TEST)
Judged by totality of the circumstances
Factors to consider:
Age (changes to would a reasonable 12 year old-or whatever age-believe they could leave AND so long as the officer knew or should have known the child’s age)
Location of interview/questioning (public or private)
Number of officers present
Duration
If officers are armed
Tone and type of questions asked
Doors locked/opened
Suspect restrained or not (handcuffed)
Routine encounter (traffic stops not custody) * --persons history with law enforcement is not relevant
An officers subjective view that the person being questioned is in custody is only relevant to determining whether a suspect is actually considered in custody when the officer’s manifestation of his thoughts would affect the suspect’s belief of custody (like saying “you are in custody”)
Traffic stops (Terry stops) are not considered custody and so Miranda warnings are not necessary (Berkemer v. McCarty)
Voluntary interviews are not considered custody as long as the interviewer does not exhibit restraint on freedom of movement (Oregon v. Mathiason)
INTERROGATION
The Miranda safeguards come into play whenever a person is in custody and is subjected to express questioning or its functional equivalent (Rhode Island v. Innis).
Functional equivalent: anything that is reasonably likely to elicit a response (whether incriminating or not) then it is an interrogation. the officer knows or should know that their words/actions will elicit a response
If the officers know about a suspect’s sensitivity (like religion, family, etc) and use this then they would know that it reasonably would elicit a response and so it is interrogation.
EXCEPTIONS FOR WHEN IT IS NOT AN INTERROGATION
(1) Public Safety
Police may withhold Miranda warnings (because it is not considered an interrogation until after they ask an arrestee (person in custody) questions that are necessary to secure their own safety or the safety of the public.
Public safety: whenever you have a lose dangerous weapon or a child in danger and there is an immediate need HOWEVER the questions have to be confined to the public safety at issue
(2) Undercover Agent
When an undercover agent questions a suspect in custody it is not an interrogation because there is no implies presence of authority (police dominated environment) or coercive environment.
(3) Routine Booking Questions
Questions that are normally attendant to arrest and custody do not qualify as interrogation because it is just gaining identity information necessary for complete booking.
However, asking confusing questions to prove someone is drunk/high is not allowed.
ADEQUACY OF WARNINGS
Police officers are not constitutionally required to recite Miranda warnings verbatim prior to custodial interrogation.
The necessary inquiry is simply whether the warnings reasonably convey a suspect his rights as required by Miranda (Duckworth v. Eagan)
MIDSTREAM WARNINGS
Midstream warnings: when you are interrogating a suspect and don’t give them Miranda and then they give an incriminating statement and then you Mirandize them and have them repeat it
They are usually not allowed because they are likely to deprive or mislead a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them
RULE: A Miranda warning is midstream and not allowed if it is a continuous and rolling interrogation and if a reasonable person would believe this was a continuous interrogation through the totality of the circumstances. (Missouri v. Seibert)
A midstream warning is allowed if there are CURATIVE MEASURES: Look to see if there was a sufficient break between the two confessionschange in location or officers, break in time, or telling them that the previous statement was inadmissible
Curative measures are A factor but not a requirement
KENNEDY’S CONCURRENCE (test used by lower courts):
In order for midstream warning to be adequate/allowed:
No intent/deliberate choice to not give Miranda warnings for the first statement (bad faith) AND
Curative measures taken * basically be acting in good faith and have curative measures
WAIVER
A suspect may voluntarily, knowingly, and intelligently waive his Miranda warnings and this is determined through totality of the circumstances. (Colorado v. Spring) suspect’s POV not police
Voluntarily: free and deliberate choice made free of police coercive actions
Indicators of coercion: duration and conditions of detention, the mental and physical state of the Defendant, police armed or not, manifest attitude of the police, pressures that sustain powers of self-control
Knowing and intelligently: full awareness of the nature of the right and the consequences to abandon
Knowingly: capacity to understand it
Speaks English, mentally competent, not drunk
Intelligently: adequate understanding of what the consequences are
Does not require 100% understanding of consequences is not necessary and just requires adequate understanding and ignorance of the full consequences of his decision does not impair the waiver (Connecticut v. Barrett)
When a suspect waives his Miranda rights, the waiver is valid for questioning about any crime for which he or she is charged unless otherwise stated. (Colorado v. Spring)
RULE: A valid Miranda waiver may be expressed or implied. (Berghuis v. Thompkins)
An implied waiver through course of conduct is allowed because through course of conduct we imply an intent to waive rights
Silence (not invoking rights) or talking PLUS understanding of rights PLUS answering questions will be an implied waiver
Waiver can come simultaneous with the statement and as long as there was some opportunity to invoke the rights before the waiver then it is allowed
TAKEAWAY: you can implicitly waive Miranda rights and it is determined through your course of conduct (not invoking, statement, and knowing rights) and waiver can happen at the same time as the statement (don’t need to waive expressly before the statement—can happen at the same time) AND it must be voluntary, knowing, and intelligently
Also look to see if a statement is given spontaneously (Miranda not necessary and so don’t need to waive)
Mental illness: court has held that even if the statement is given by someone with a mental illness as long as it is not coerced then it is voluntary(Colorado v. Connelly)
INVOCATION OF MIRANDA RIGHTS
Unambiguous invocation requirement: there must be an unambiguous invocation of rights (Davis v. US)
If police encounter an ambiguous statement that do NOT have to cut off questioning and CAN ask for clarification but do not have to
Concurrence: requires clarification
“Maybe I should talk to a lawyer” is ambiguous
It is presumed that you are waiving your rights unless you EXPRESSLY and UNAMBIGUOUSLY invoke them (Thompkins) and cannot have an implied invocation only an implied waiver (through course of conduct).
SEEKING A WAIVER AFTER INVOCATION
There are different guidelines for when police may seek a waiver post-invocation depending on whether the suspect invoked the right to silence or right to counsel.
There is a difference because right to silence says I want to be quiet now and think and I Can change my mind later BUT right to counsel is about needing help because of the coercive environment if you invoke both then right to counsel governs
INVOCATION OF RIGHT TO SILENCE
FACTORS in determining if a second interrogation (waiver can be sought AGAIN) after invocation is permissible:
(1) New Miranda warnings were given and they were waivedMANDATORY to assess if post invocation waiver is valid
(2) passage of time from first interrogation and invocation of rights and second warnings and waiverMANDAORTY
(3) they honored the right when it was invoked immediately (original interrogation ceased immediately)MANDATORY
(4) different location, crime, and interrogating officerNOT MANDATORY but having one of these present helps so can talk about the same crime but shouldn’t like in Michigan v. Moseley—it was about a homicide for the second set of questioning and he had originally invoked right to silence when questioned about a robbery
Can talk about different cases if waiver is sought after invocation of right to silence
INVOCATION OF RIGHT TO COUNSEL
THREE WAYS TO SEEK WAIVER POST INVOCATION OF RIGHT TO COUNSEL
(1) counsel is present
(2) Suspect initiates questioning about the investigation or something about their case (asking for water does not count!)
(3) if there has been a break in custody for 14 days
If suspect invokes right to counsel if applies for all crimes and officers cannot just start asking about another crime—the invocation is for everything because it is about the coercive environment and not the crime (Edwards v. Arizona)
FALSE CONFESSIONS
Policy: does Miranda actually work?
The Wire show where he was Mirandized and still confessed and the case of the juveniles confessing to the rape (Central Park Jogger Case)
The environment can still be coercive and since we hear Miranda on so many TV shows and the like people no longer “hear” them and so they are not as effective and we still get false confessions
B. MASSIAH6th AMENDMENT
ADVERSARIAL PROCEEDINGS HAVE BEGUN
RULE: A suspect’s 6th amendment right to counsel attaches after the adversarial proceedings have started and if there is deliberate elicitation.
It is not started simply after arrest and instead there needs to be some sort of formal charge set in court (prosecutor’s actions not police) and so this governs like investigation after charges have been filed (like with Dean Kelly case)
6th amendment right is offense specific as long as there is at least one unique element between the two crimes/where the proof of a fact not related to the other (TX v. Cobb) so been formally charged and indicted one robbery, the police can talk to the suspect about a homicide charge even if it arises from the same set of facts because there is at least one different element in each crime cannot talk about armed robbery if formally indicted for robbery because robbery has same exact elements as armed robbery minus the use of a weapon and there has to be one different element in each crime so robbery would have to have something that armed robbery didn’t and armed robbery would have to have something different than robbery (think double jeopardy)
Under Miranda you once rights are invoked you cannot question about any offense but under Massiah it is only about the crime where the adversarial proceedings began
DELIBERATE ELICITATION
The 6th amendment does not apply to statements that are obtained by luck or happenstance and only by incriminating statements from the accused after adversarial proceedings have begun when the state deliberately elicits an incriminating statement from the accused.
Difference between deliberate elicitation and interrogation
Interrogation: whether a reasonable officer would know that the questioning or its functional equivalent would result in a statement (incriminating or not)objective
Deliberate elicitation: if the officer knew or should have known that it would elicit an incriminating responsesubjective
Actively seeking information based on their knowledge of the suspect after adversarial proceedings have occurred
An officer or informant may not ask any questions or take any action other than merely listening in order for it to not be deliberate elicitation (Kuhlman)
6th amendment applies to state actors but when there is a government relationship then that informant is considered the state and the 6th amendment applies (so it applies to informants and undercover unlike 5th amendment which is about coercive environment)
Factors that make an informant a government agent
Agency relationship between state and informant
Look to extent of involvement
Did the government promise a reward, request to obtain incriminating evidence, placement of the informant into a position to obtain such evidence, and initiation of a pre-existing plan to secure it * so someone who just brings info to the police without these elements is just a good Samaritan and they can deliberate elicit because 6th amendment doesn’t apply to them