CRIMINAL PROCEDURE OUTLINE I. Preliminary Perspectives on the 4th Amendment a.

Introduction to the Exclusionary Rule & Searches (969-84; 3-10) i. 4th amend: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ii. Exclusionary rule primary mechanism used against abusive police practices 1. Mapp v. Ohio (1961) held that all evidence obtained in violation of Ds constitutional rights inadmissible at trial (including state cts) 2. R that evidence obtained by governmental action through means that violate 4th amend generally must be excluded from criminal trial: a. 1. Evidence obtained by govt. action b. 2. Through means that violate 4th amend c. 3. Must be excluded from criminal trial i. Subject to exceptions and limitations d. 4. Of individual whose rights are violated [standing requirement] iii. Weeks v. United States (1914) 1. Exclusionary R applies to items seized from warrantless search a. Significance of home being a mans castle core protection of 4th amend is protection of home b. Fourth Amendment Searches (10-48) i. What constitutes a search? 1. Katz v. United States (1967) a. Ct. ruled that FBI attaching electronic listening device and recording device to outside of public phone booth constituted a search. i. See point of transition between older concept of 4th amend that focused on places, tangibles and property rights to protection of people and their reasonable expectations of privacy 1. Property rights privacy interests b. Harlan, concurring: 2 requirements for search: i. 1. Actual expectation of privacy that ii. 2. Society is prepared to recognize as reasonable 1. Is only a threshold Q 2. United States v. White (1971) a. Ct. held no search because D knowingly exposed info to another person i. Bug placed on govt. informant doesnt trigger 4th amend 3. Smith v. Maryland (1979) a. Ct. held no search because probably no reasonable expectation of privacy re: phone numbers he dialed b. Different from Katz because pen registers dont get contents of communications 4. California v. Ciraolo (1986) a. Ct. held no search because even though yard in curtilage of Ds home, that doesnt mean its free from all police observation. i. Police observation was in public navigable airspace and in physically nonintrusive manner.

1. Physical intrusiveness didnt matter in Katz but matters in this case because wouldve been different if helicopter was 200 ft above and kicking up dust a. Future case held that 400 ft wouldnt be physically intrusive but anything less would be ii. If police had peered into backyard from 3rd story of private house with homeowners permission not public vantage point 1. But neighbor could be false friend and D exposing things to portion of public may be knowingly providing info iii. Curtilage distinguished from open fields 1. Curtilage has 4th amend protection against unreasonable searches while open fields do not 2. United States v. Dunn 4 variables pertinent to determination whether area is curtilage: a. 1. Areas proximity to the home; b. 2. The existence of an enclosure around the area; c. 3. The nature of the use to which the area is put; and d. 4. The precautions taken to exclude others from the area 3. No bright-line standard but all variable must be considered to determine whether location falls within area to which extends intimate activity associated with the home and so is place in which person may have reasonable expectation of privacy 4. Open field closest ct. has come to definition any unoccupied or undeveloped area outside of curtilage 5. Bond v. United States (2000) a. Ct. held there was a search agents physical manipulation of Ds bag violated his 4th amend right i. This case distinguished from Ciraolo, Riley because those cases involved visual observation and not tactile 1. Physically invasive inspection more intrusive than purely visual one 6. Kyllo v. United States (2001) a. Ct. held use of thermal imaging device on home constituted a search. b. Scalias R for when sense enhancing technology amounts to a search all details are intimate details when from interior of a house i. Obtaining by sense enhancing technology any info re: interior of home that couldnt otherwise have been obtained without physical intrusion into constitutionally protected area c. Standing (989-1017) i. Alderman v. United States (1969) 1. Ct. held that 4th amend rights cant be vicariously asserted, theyre personal rights exclusionary R can only be applied to one whose constitutional rights have been violated ii. Rakas v. Illinois (1978) 1. Transformed nature and language of standing inquiry

II.

2. Since exclusionary R is attempt to effectuate guarantees of 4th amend, its proper to permit only Ds whose 4th amend rights have been violated to benefit from Rs protections 3. Ct. focused on whether D had their own rights infringed by polices search and seizure rather than on concept of standing 4. Ct. also determined that appropriate measure of rights no longer guided solely by whether Ds were legitimately on premises that police searched a. Without holding that property interest was required, ct. decided that 4th amend protected only those places in which Ds had reasonable expectation of privacy iii. Minnesota v. Carter (1998) 1. Ct. held that D had no standing because their 4th amend rights werent violated a. D had no legitimate expectation of privacy in someone elses apt iv. Threshold requirements to challenge search under 4th amend: 1. Govt. violation [state action 2. Of your [standing] 3. Reasonable expectation of privacy [search] Probable Cause & Warrants a. The Probable Cause Standard (57-91; supp. 3-4) i. Brinegar v. United States (1949) 1. Formulation for PC to arrest/search: a. PC exists when: i. 1. The facts and circumstances within an officers knowledge [personal knowledge of officer] ii. 2. And of which the officer has reasonably trustworthy info [hearsay sources] iii. 3. Are sufficient in themselves to warrant a person of reasonable caution in the belief that: iv. (for arrest) 1. An offense has been or is being committed 2. By the person to be arrested v. (for search) 1. An item subject to seizure 2. Will be found in the place to be searched b. PC to arrest doesnt go stale ii. Distinguishing b/t personal knowledge and knowledge from hearsay source: 1. Even if not dealing with hearsay knowledge, what would magistrate still consider if [event affiant magistrate] a. May be lying (veracity of affiant) or mistaken (basis of knowledge of affiant) b. Safeguards: affiant subject to penalties since under oath; magistrate can ask Qs 2. Info of hearsay source: a. Event informant <tip> affiant magistrate i. Informant can be mistaken (basis of knowledge of informant) or lying (veracity of informant) iii. Spinelli v. United States (1969) 1. Assessing info from hearsay source a. Ct. holds no PC 2. Aguilar structure [hearsay only cases]:

a. Adequate showing re: informants i. 1. Veracity 1. Credibility 2. Reliability ii. 2. Basis of knowledge b. Veracity: i. Looking for informants ID and track record ii. Corroboration of details iii. Declaration against interest c. Basis of knowledge: i. Where he got info; claim of personal knowledge? ii. Self-verifying details iv. Illinois v. Gates (1983) 1. Ct. reaffirms totality-of-the-circumstances analysis that traditionally has driven PC determination a. Including veracity and basis of knowledge of informants so Aguilar-Spinelli not completely gone, but still highly relevant v. Whren v. United States (1996) 1. Ct. held that since officers had PC to believe D had violated traffic code, stop reasonable under 4th amend 2. Although PC that D violated traffic laws, no PC to believe they have drugs when theyre initially stopped a. But ct. concludes pretext doesnt matter in this context i. Intentions play no role in ordinary 4th amend analysis because reasonableness allows certain actions to be taken in certain circumstances regardless of subjective intent b. The Warrant Requirement i. No warrant shall issue but upon probable cause ii. Johnson v. United States (1948) 1. Tip from informant, Officers track odor to Ds room, D let them in, incriminating evidence seized a. Ds 4th amend rights violated officers shouldve obtained warrant i. Evidence was such that wouldve been likely to have obtained search warrant from magistrate if appropriate steps had been taken ii. Reason for having warrant first: 1. Magistrate important that inferences be drawn by neutral and detached magistrate instead of being judged by officer engaged in often competitive enterprise of ferreting out crime 2. Specific limits on search placed in advance which may be beneficial 2. Katz standard searches conducted outside judicial process, without prior approval by judge are per se unreasonable under 4th amend subject only to few specifically established and well-delineated exceptions 3. D didnt effectively consent and waive her 4th amend right because was just submitting to authority rather than waiving constitutional right iii. United States v. Watson (1976)

1. When have a warrantless public arrest for felony constitutional so long as supported by PC even if there were no exigent circumstances and police could have obtained a warrant 2. Usual R that officer can arrest without warrant person believed by officer upon reasonable cause to have been guilty of a felony iv. Atwater v. City of Lago Vista (2001) 1. Ds 4th amend rights not violated when arrested for misdemeanor without warrant since officer had PC to believe D had committed a crime in his presence 2. Even though D may have case about being arrested in extraordinary matter, ct. recognized that 4th amend balance not well served by standards requiring case by case determinations a. Why there should be preference for bright line rules in 4th amend analysis: i. Judicial economy easier application 3. 2 part analytical structure: a. Inquire first into what history says b. When that inquiry yields no answer, must evaluate search or seizure under traditional standards of reasonableness i. Balancing between public and private interest 4. Bright-line R: Can be arrested for misdemeanor without a warrant (at least if its committed in officers presence) c. The Particularity Requirement (132-46; supp. 5-9) i. 4th amend must state with particularity things to be seized and place to be searched ii. Andresen v. Maryland (1976) 1. Warrant with general clause still met particularity requirement a. together with all fruits, instrumentalities and evidence of crime at this *time+ unknown b. Warrant specifically stated crime of false pretenses and stated officers could only search for and seize evidence relevant to that crime i. So residual clause limited by balance of description of things to be seized c. If cant draft more specific description, cts tend to allow fairly broad description i. If can feasibly limit things to be seized, should do it d. But too much discretion allows general exploratory rummaging iii. Maryland v. Garrison (1987) 1. Reasonable mistake in describing place to be searched doesnt violate 4th amend a. Validity of warrant must be assessed on basis of info that officers disclosed, or had duty to discover and to disclose, to issuing magistrate and in this case, warrant was valid when it issued. b. Look to reasonableness of info available at time warrant is sought c. Issue of execution of warrant (assuming validity): i. Officers wouldve had to stop search when they knew or shouldve known there was ambiguity in place to be searched 1. Whether execution of warrant was reasonable iv. United States v. Grubbs (2006) 1. 4th amend doesnt require that triggering condition for anticipatory search warrant be set forth in warrant itself anticipatory search warrant constitutional a. To comply with 4th amend requirement of PC, prerequisites:

III.

i. If triggering condition occurs theres fair probability that contraband or evidence of crime will be found in particular place ii. PC to believe triggering condition will occur Exceptions to the Warrant Requirement a. Searches Incident to Arrest (165-97) i. When determining threshold Qs, ask: 1. Was there governmental conduct 2. That amounted to a search 3. Does the D have standing 4. Was the search reasonable? a. Was there a valid warrant? i. Probable case, under oath/affirmation, particularity ii. If not, burden on opposing party to establish that search was okay b. Executed in a valid manner? c. Or, if no i. Does an exception to warrant requirement apply? 1. Searches incident to arrest ii. Chimel v. California (1969) 1. Warrantless search of Ds entire house cannot be constitutionally justified as incident to valid arrest search went beyond Ds person and area from which he was in control of. 2. Proper scope of search incident to arrest: a. On the person b. Area within immediate control of arrestee (where might grab weapons or evidentiary items) 3. Justifications: a. Protection of officers (weapons) b. Preserving evidence iii. Hypo: locked drawer within arrestees reach but harder to access ct. doesnt answer iv. No justification for routinely searching through all desk drawers or other closed/concealed areas within room itself v. United States v. Robinson (1973) 1. In case of full custodial arrest, full search of the person is reasonable search under 4th amend a. Justification has lot to do with need to disarm suspect in order to take him into custody and also to preserve evidence that may later be used in trial b. Generally, can arrest in public place for felony/misdemeanor committed in police presence constitutionally enough to justify custodial arrest i. Re: arrest of person when misdemeanor committed outside of officers presence Q still left open by fn11 in Atwater 2. Case dispensing of warrant requirement and PC standard as to search 3. If there is a a. 1. Lawful custodial arrest b. Then without a warrant or further justification the police may conduct a c. 2. Full search of the person arrested d. 3. And of the area within his immediate control e. 4. As a contemporaneous incident of that arrest 4. Between 2. & 3. theres spatial nexus and between 3. & 4. theres temporal nexus

vi. New York v. Belton (1981) 1. When officer has made lawful custodial arrest of occupant of a car, he may, as contemporaneous incident of that arrest, search passenger compartment of that car a. Follows from this conclusion that police can also search content of any containers found within passengers compartment no additional justification needed i. Justification that anything within passenger compartment of vehicle would always be within reach of someone arrested from vehicle 2. D had standing because although wasnt his car, he had reasonable expectation of privacy of things in zippered jacket of his pocket (container within a container within a car) 3. Ambiguities in R as whether this R would extend to trunk 4. Contemporaneous a. Inconsistent standards but USSC ruled needs to be reasonable contemporaneous vii. Thornton held can still search passenger compartment if first contact with officer comes when person is outside of car b. Searches for Arrestees i. Payton v. New York (1980) 1. Warrant must be obtained if police officers are to enter private residence and with force, if necessary, make routine felony arrest. a. Absent exigent circumstances, can enter private dwelling only if have arrest warrant and reason to believe suspect is inside b. Arrest warrant would be sufficient (doesnt have to be search warrant) because carries additional implicit authority to enter dwelling subject lives in if theres reason to believe suspect is inside 2. Arrest warrant would only give authority to enter home an look only in places suspect could be 3. USSC has held that standing in threshold of door is in public view so if no arrest warrant but PC to believe suspect is inside, could arrest ii. Steagald v. United States (1981) 1. An arrest warrant, as opposed to a search warrant, isnt adequate to protect 4th amend interests of persons not named in the warrant when their homes are searched without their consent and in the absence of exigent circumstances a. search warrant requirement wouldnt impede law enforcement that much 2. Interests protected by arrest warrant for suspect theyre interest against being unreasonably seized and implicit authority to go into his home 3. If not overnight guest, and in 3rd partys home, arrest warrant doesnt give authority to go into 3rd partys home 4. Absent exigent circumstances or consent need: a. arrest warrant to enter suspects own home plus reason to believe hes there b. search warrant to enter 3rd partys home c. Exigent Circumstances (223-31; supp. 11-12) i. If police have PC to search for a person or thing, this is exception to warrant requirement and not PC standard; if police have PC to search, exigency makes it impracticable to take time to get warrant first ii. Warden, Maryland Penitentiary v. Hayden (1967)

1. Officer may enter home and conduct warrantless search in exigent circumstances 2. Risks present if police didnt take prompt action: a. Ct. focuses on danger to officers and public b. Destruction of evidence 3. Case different from when felon is known to be in particular location a. Makes flight more likely b. When he knows police are in pursuit, then might take advantage of escape route police would be unaware of c. Greater dangers d. Greater chance of destruction of evidence because of pursuit 4. Permissible scope of search must at least be broad enough as is reasonably necessary to prevent dangers that suspect at large in house may resist or escape a. Scope of search supported by exigent circumstances to be as broad as exigencies that give rise to search iii. Welsh v. Wisconsin (1984) 1. govt. relied on exigent circumstances exception to justify warrantless nighttime entry of home to arrest resident 2. 3 difference exigencies that justified warrantless entry to arrest: a. 1. Officers in hot pursuit of criminal b. 2. They needed to prevent threat he posed to public safety c. 3. Needed to preserve evidence of his blood alcohol level 3. What constitutes hot pursuit: a. 1. Immediate and continuous pursuit b. 2. Of one who is subject to arrest c. 3. From a public place into a home (or other private place) d. At least where e. 4. The offense is not minor f. 5. The subject is aware of pursuit 4. Santana suspect cant escape arrest thats in motion by escaping into home iv. Vale v. Louisiana (1970) 1. Arrest on the street doesnt provide its own exigent circumstance so as to justify warrantless search of arrestees house. 2. Search is incident to arrest only if its substantially contemporaneous with arrest and confined to immediate vicinity of arrest 3. Although Payton provides that arrest warrant carries implicit authority to search home when theres reasonable belief D is inside, any authority that comes from arrest warrant has ended when arrest occurred d. Vehicle and Container Searches/Automobile Exception (238-86) i. Under-inclusive because doesnt just apply to cars ii. Over-inclusive because doesnt apply to cars in all circumstances iii. Belton only dealt with searches incident to arrest 1. As to search incident to arrest once have lawful arrest, dont need PC to believe something is inside, right to search is automatic iv. Chambers v. Maroney (1970) 1. Officers authorized to engage in search of car and its containers because there was PC to arrest occupants and PC to search car

2. Search lawful under exception of exigent circumstances that since car is mobile opportunity to search is fleeting 3. If effective search to be made at any time, either search must be made immediately without warrant or car itself must be seized and held without warrant for whatever period is necessary to obtain search warrant 4. Texas v. White (1975) officers with PC to search a car at scene where it was stopped could, with no additional justification, also transport car to station and search there v. Coolidge v. New Hampshire (1971) 1. Search of car not consistent with 4th amend when arrest occurs inside home 2. Distinct from other automobile exception cases because no expectation that D would flee 3. Clearly officers couldve gotten warrant since they did get one but just from wrong person from AG instead of neutral and detached magistrate vi. California v. Carney (1985) 1. Law enforcement agents didnt violate 4th amend when they conducted warrantless search, based on PC, of fully mobile motor home located in public place a. Motor home falls under automobile exception 2. Justifications: a. Readily mobile b. Reduced expectation of privacy when is licensed motor home i. Moves from focus on exigency to focus maybe on balancing the intrusion against the need 3. Surviving elements of automobile exception: a. IF THERE IS i. 1. PC to believe an item subject to seizure is located in ii. 2. A readily mobile vehicle iii. 3. In a public place iv. 4. And so situated that an objective observer would conclude it is not being used as a residence v. THEN vi. 5. It may be searched without warrant on the scene, OR vii. 6. Transferred to police station and searched there viii. 7. [scope] only in areas (including containers in vehicle) where there is PC to believe an item subject to seizure is located vii. United States v. Chadwick (1977) 1. No exigency, so was unreasonable for govt. to conduct search of container within trunk of automobile without safeguards a judicial warrant provides 2. Justification for automobile exception as laid out in Carney lesser expectation of privacy not applicable in this case a. Ds placed items inside double locked footlocker i. Persons expectations of privacy in personal luggage substantially greater than in car b. As to mobility smaller containers less mobile and officers had containers in possession and footlocker was safely immobilized 3. Treated as giving officers ability to seize item on PC but then obtain warrant after seizure

a. No separate movable container exception to search warrant required (have seizure authority but no search authority) 4. Search not incident to arrest a. Locker wasnt in immediate control of D b. Search not conducted contemporaneously 5. End up not being about automobile exception but about moveable containers in a public setting viii. California v. Acevado (1991) 1. Police may search car and containers within where they have PC to believe contraband or evidence is inside a. Including closed container and trunk b. BUT PC to believe container placed in trunk of taxi containers contraband or evidence doesnt justify search of entire cab ix. Wyoming v. Houghton (1999) 1. Police officers do not violate 4th amend when they search passengers personal belongings inside an automobile that they have PC to believe contains contraband 2. Ds lack of standing to contest because she doesnt have general expectation of privacy over everything in car 3. Application of automobile exception: a. PC to believe theres contraband in car yes, uncontested b. PC to believe contraband is somewhere in the car, but dont know where i. Under automobile exception can search everywhere PC can take you th 4. 4 amend allows warrantless search of all containers that might conceal object of search without qualification as to ownership 5. From Atwater: a. In determining whether particular governmental action violates 4th amend: i. 1. Inquire first whether action was regarded as unlawful search or seizure under common law when amend was framed ii. 2. When that inquiry doesnt answer, must evaluate search of seizure under traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon individuals privacy and, on the other, degree to which its needed for promotion of legitimate governmental interest 6. Car passenger often will be engaged in common enterprise with driver and have same interest in concealing fruits or evidence of their wrongdoing e. Inventory Searches (294-311) i. Not only exception to warrant requirement, but also exception to PC norm ii. South Dakota v. Opperman (1976) 1. Officers can perform warrantless inventory search because when cars impounded police depts. usually follow routine practice of securing and inventorying cars contents 2. No need for PC to support inventory search because: a. Not criminal investigation b. But is routine administrative function 3. Reason for inventory search: a. 1. Protect owners property b. 2. Protection of police over claims over lost property c. 3. Protection of police from potential danger

f.

4. Search carried out with standard procedures factors tending to ensure that intrusion would be limited in scope to extent necessary to carry out caretaking function iii. Illinois v. Lafayette (1983) a. Its reasonable for police, as part of routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures. b. Standardized procedure for making inventory as soon as reasonable after reaching station not only deters false claims but also inhibits theft or careless handling of articles taken from arrestee iv. Colorado v. Bertine (1987) 1. Reasonable police regulations relating to inventory procedures administered in good faith satisfy the 4th amend so state may prove charges with evidence discovered during inventory of vehicle. 2. Ct. concludes inventory search can be done at scene 3. If police a. 1. Follow reasonable, standardized procedures b. 2. For the purpose of administrative inventory c. 3. And not as a pretext for criminal investigation d. Then they may e. 4. Conduct a routine inventory search (without warrant and without PC) f. 5. Of a lawfully impounded vehicle g. 6. Or of a lawfully arrested person about to be incarcerated h. 7. Even if less intrusive means for safeguarding property are available Consent Searches (318-45; supp. 12-27) i. Used to justify warrantless searches more than any other ii. Schneckloth v. Bustamonte (1973) 1. Ct. held that when subject of search isnt in custody and State attempts to justify search on basis of his consent, 4th and 14th amends require that it demonstrate that consent was in fact voluntarily given, and not result of duress or coercion, express or implied. a. Proof of knowledge of right to refuse consent not necessary prerequisite to demonstrating voluntary consent b. Voluntariness is critical factor in what makes consent valid: i. Look at totality of circumstances, including characteristics of accused, to determine that consent isnt coerced, express or implied 1. Knowledge just another factor in totality of the circumstances th 2. 4 amend doesnt deal with right to fair trial so reject waiver approach and adopt 5th amend voluntariness approach that says dont need to ensure knowledge 3. Police not required to warn somebody of their right in order to have valid consent iii. Ohio v. Robinette (1996) 1. Lawfully seized D doesnt have to be advised hes free to go before his consent to search will be recognized as voluntary iv. United States v. Matlock (1974) 1. 3rd party able to give adequate consent and search justified. a. Joint occupant of residence b. Not because 3rd party can waive Ds rights, but because she has equal right to home

i. Common authority rests on mutual use of property by persons generally having joint access for most purposes 1. Evidence of 3rd partys common authority: a. Jointly occupied bedroom b. Statements that they were husband and wife c. Answered door wearing robe and holding child v. Illinois v. Rodriguez (1990) 1. An officers reasonable belief that a 3rd party had authority to consent can validate an entry into a residence 2. R that should be applied even if no common authority, can give valid consent if have apparent authority and police would reasonably believe that you have actual authority a. Apparent authority just as good as actual authority under 4th amend i. Actual authority based on customary social usage/social norms/commonly held understandings/widely shared social expectations 3. R: determination of consent to enter must be judged against an objective standard: would facts be available to officer at the momentwarrant a man of reasonable caution in the belief that consenting party had authority over the premises? 4. In absence of apparent authority, actual authority is enough one of the other vi. Georgia v. Rudolph (2006) 1. Warrantless search of shared dwelling for evidence over express refusal of consent by physically present resident cant be justified as reasonable as to him on basis of consent given to police by another resident a. R: physically present inhabitants express refusal of consent to police search is dispositive as to him, regardless of consent of fellow occupant. vii. Consent searches effective if: 1. Voluntarily given 2. By one with actual authority 3. Or apparent authority 4. But not as to a residence who is physically present and expressly objects viii. Police cant take actions to remove objector g. Plain View Seizures (352-65) i. Seizure and not search doctrine ii. Classic plain view situations, allow seizure because: 1. Might be impracticable to go get warrant a. Possibility of destruction of evidence 2. Any expectation of privacy has already been invaded and is already lawful invasion so maybe no need for warrant 3. Still have possessory interest being undermined by seizure 4. Easier for police, convenient 5. Police cant be faulted for not going to magistrate first because they didnt even know about it iii. Horton v. California (1990) 1. Warrantless seizure of evidence of crime in plain view is not prohibited by 4th amend even if discovery of evidence wasnt inadvertent. a. Inadvertence is characteristic of most legitimate plain view seizures but its not necessary condition

IV.

2. Requirements for plain view seizure: a. 1. Lawful vantage point b. 2. Incriminating nature of evidence is immediately apparent c. 3. Lawful right of access 3. Particularity requirement of warrant takes care of risk of general search iv. Arizona v. Hicks (1987) 1. Search was unlawful because movement of stereo equipment was considered new search a. Cant just seize item if suspect its stolen because dont have PC i. Incriminating nature of evidence not immediately apparent v. Addresses authority to seize and theoretically doesnt expand authority to search 1. Can seize item in plain view without warrant if was in course of lawful search 2. Must have PC that its subject to seizure without engaging in any additional search The Stop and Frisk Doctrine a. The Basic Doctrine (373-92) i. Terry v. Ohio (1968) 1. Authorizes for first time 4th amend searches and seizures without consent/warrant/nor PC and in context of criminal investigation 2. Where police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that persons with whom hes dealing may be armed and presently dangerous, where in course of investigating this behavior he identifies himself a policeman and makes reasonable inquiries, and where nothing initial stages of encounter serves to dispel his reasonable fear for his own or others safety, hes entitled for protection of himself and others in area to conduct carefully limited search of outer clothing of such persons in attempt to discover weapons which might be used. a. Scope of search must be strictly tied to and justified by circumstances which rendered its initiation permissible. 3. Shorthand holding reasonable suspicion a. Stop reasonable suspicion that criminal activity is afoot b. Frisk reasonable suspicion that suspect is armed and presently dangerous 4. Reasonableness standard need to balance between govt. interest and suspects rights 5. Whether reasonable man wouldve been warranted in believing individual is armed and dangerous 6. Seizure of person separated into 2 tiers: a. Seizure of person, like arrest, that require PC b. Seizure of person called Terry stop that requires reasonable suspicion that criminal activity is afoot ii. Dunaway v. New York (1979) 1. Police violated 4th and 14th amends when, without PC to arrest, they took D into custody, transported him to police station, and detained him for interrogation a. Situation so close to arrest that need PC 2. Terry narrowly tailored exception exception applied when is limited on on-thestreet search for weapons 3. Upper boundary of Terry stop PC required not just for traditional arrest but also for detentions not substantially less intrusive b. Seizures of Persons (392 420; supp. 29-34)

i. United States v. Mendenhall (1980) 1. No seizure because D consented freely and voluntarily 2. Person seized under 4th amend only when a. 1. By physical force or b. 2. Show of authority to which the person submits i. [Scalia Hodari D.] c. 3. His freedom of movement is restrained i. [first 3 from Terry] d. 4. A reasonable innocent person would have believed e. 5. He was not free to leave or otherwise terminate the encounter i. [from Mendenhall, Bostick] ii. Florida v. Bostick (1991) 1. Police encounter on bus didnt necessarily constitute seizure within meaning of 4th amend a. Cramped confines of bus are one relevant factor that should be considered in evaluating whether passengers consent is voluntary, but single factor isnt dispositive i. Must consider all circumstances surrounding encounter to determine whether police conduct wouldve communicated to reasonable person that he wasnt free to decline officers request or otherwise terminate encounter b. free to leave standard not appropriate in this case because when someone on bus and has no desire to leave, degree to which reasonable person would feel he could leave isnt accurate measure of coercive effect of encounter iii. California v. Hodari D. (1991) 1. No unlawful seizure at time D dropped drugs a. D not seized until he was tackled would be seizure by physical force i. Before then, no seizure because although there was show of authority, there was no submission ii. If evidence had been produced during period of illegal seizure, evidence could be suppressed but before theres a seizure, tossing of item isnt fruit of illegal seizure so just abandoned property. b. Arrest if either physical force or where absent, submission to authority i. Officers pursuit constituted showing of authority and since D didnt comply with it, he wasnt seized until he was tackled iv. Brendlin v. California (2007) 1. Passenger is also seized in course of traffic stop and so may challenge constitutionality of the stop. 2. Terry stop limited to search for weapons c. Reasonable Suspicion [The Showing Needed to Stop and Frisk] (427-47) i. Illinois v. Wardlow (2000) 1. Officer justified in suspecting D was involved in criminal activity, and, therefore, in investigating and stopping and frisking D 2. Rewording of Terry standard need reasonable articulable suspicion a. Reasonable suspicion need to be able to articulate more than inchoate and unparticularized suspicion of hunch 3. Low-end of reasonable suspicion

a. What we know is NOT enough: i. Mere refusal to cooperate, without anything more (Bostick) ii. Individuals presence in area of expected criminal activity b. After this case, what IS enough: i. Unprovoked headlong flight in high crime area upon noticing the police 1. Although there may be innocent explanations, enough if surrounding conditions refute such notions ii. Reasonable suspicion when information comes from informant: 1. Alabama v. White (1990) a. When officers stopped D, anonymous tip had been sufficiently corroborated to furnish reasonable suspicion that D engaged in criminal activity so investigative stop didnt violate 4th amend b. Reliability of tip to be weighed against amount of info provided quantity and quality considered in totality of the circumstances i. If tip has relatively low degree of reliability, more information will be required to establish requisite quantum of suspicion than would be required if tip were more reliable c. Ct.s structure for analyzing reasonable suspicion based upon a tip: i. Look to totality of circumstances ii. Consider veracity and basis of knowledge 1. Difference is just in level of required showing a. Indicia of reliability can be lower iii. Ct. says there was reasonable suspicion 1. Corroboration 2. Significance of nature of info given regarding future actions of 3rd parties justification that informant had inside knowledge d. mere hunch an inchoate and unparticularized hunch e. RS some minimal level of objective justification f. PC doesnt have to reach preponderance standard 2. Florida v. J.L. (2000) a. Tip wasnt reliable enough to provide reasonable suspicion necessary to frisk D. i. Distinctions from White: 1. No predictive features 2. Lacked moderate indicia of reliability d. Permissible Scope (456-74; supp. 34-35; 488-94) i. Scope of Terry frisk limited pat down of outside clothing ii. United States v. Sharpe (1985) 1. Expansion of stop and frisk doctrine stretched out to even apply to 20 minute stop a. In assessing whether police detention was too long in duration to be justified as investigative stop, appropriate to examine whether officer diligently pursued means of investigation that was likely to confirm or dispel their suspicions quickly b. Delay attributable almost entirely to evasive actions of D i. Most important factors in assessing temporal scope: 1. Delay being due to Ds themselves 2. Officer diligence

V.

2. Ct. doesnt want to establish per se rule as to what length of time would transform RS stop to PC stop iii. United States v. Place (1983) 1. Detention of luggage violated Ds 4th amend rights a. 90 minute detention of luggage went beyond narrow authority possessed by police to detain briefly luggage reasonably suspected to contain narcotics b. Violation worsened by agents failure to accurately inform D where bags being transported, how long they might be gone, arrangements for return iv. Maryland v. Buie (1990) 1. While effecting arrest of suspect in his home pursuant to arrest warrant, officers may conduct warrantless protective sweep o f all or part of the premises. a. As incident to arrest, as precautionary matter and without PC or reasonable suspicion, officers could look in closets and other spaces immediately adjoining place of arrest from which attack could be immediately launched 2. Expansion of scope of search incident to arrest can search areas immediately adjoining place of arrest from which attack could be launched a. consider zone 1 (area adjoining arrest) b. Beyond zone 1, need reasonable and articulable suspicion that individual posing danger is on arrest scene but can only extend to cursory inspection of spaces where person may be found (zone 2) i. Spatial and temporal limitation no longer than it takes to complete arrest and depart premises 3. Authority of case limited to arrests that occur in home The Miranda Doctrine a. The Basic Doctrine (681-722) i. Confession voluntary if (basic due process standard) 1. The Ds will is overborne 2. Due to coercive police activity 3. Considering totality of situation ii. Miranda v. Arizona (1966) 1. Miranda warnings: a. Right to remain silent, b. Any statement can and will be used against you in a ct. of law, c. Right to consult with a lawyer and have them be present at an interrogation, d. If cant afford one, one will be appointed 2. Where there is: a. 1. Custodial b. 2. Interrogation c. There must be d. 3. A specific set of warnings e. 4. Adequate waiver i. Waiver must be knowing, intelligent and voluntary th 3. 5 amend invoked only when statement used in trial 4. If rights invoked, interrogation must cease 5. Only applies to police Qing iii. New York v. Quarles (1984)

1. Public safety exception to requirement that Miranda warnings doctrinal underpinnings of Miranda dont apply when theres situations where Qs reasonably prompted by concern for public safety a. Need for answers to Qs in situation posing threat to public safety outweighs need for prophylactic R protecting 5th amends privilege against selfincrimination iv. Dickerson v. United States (2000) 1. Act of Congress (3501) cant overrule Miranda because constitutional decision Miranda governs admissibility made during custodial interrogation in both state and fed cts b. Custodial Interrogation (723-30; 746-64) i. Definition of custodial interrogation in Miranda Qing initiated by law enforcement officers after person has been taken into custody or otherwise deprived of his freedom of action in any significant way ii. Berkemer v. McCarty (1984) 1. Person has to be given warnings regardless of nature of offense for which hes suspected for or for which he was arrested. a. Applies to any offense so long as theres custodial interrogation 2. Roadside Qing of motorist detained pursuant to routine traffic stop should not be considered custodial interrogation a. Doesnt exert pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require the he be warned of his constitutional rights i. less of police-dominated atmosphere as envisioned by Miranda ii. public nature of stop iii. generally temporary and brief 3. Reasonable man standard: a. 1. Formal arrest, or b. 2. Its functional equivalent; that is i. When reasonable person in Ds position would conclude that his freedom of action is curtailed ii. To a degree associated with formal arrest iii. Rhode Island v. Innis (1980) 1. Interrogation for Miranda purposes a. 1. Express questioning b. 2. Or its functional equivalent i. Words or actions by the police (other than those normally incident to arrest and custody) ii. That they should know are reasonably likely to elicit an incriminating response 2. No interrogation in this case: a. No particular vulnerability of suspect being exploited b. No indication that they knew D was unusually upset or disoriented that could affect what they would think would be likely to elicit incriminating response iv. Illinois v. Perkins (1990)

VI.

1. Undercover law enforcement officer posing as fellow inmate need not give Miranda warnings to incarcerated suspect before asking Qs that may elicit an incriminating response a. Dont implicate concerns underlying Miranda: i. Police-dominated atmosphere ii. Compulsion c. Waiver & Invocation (771-80; 784-98) i. Silence standing alone not enough to show waiver ii. Heavy burden upon govt. to demonstrate waiver iii. Speaking after given rights doesnt constitute waiver iv. Colorado v. Spring (1987) 1. Standard ct. uses to address adequacy of waiver of rights in this context a. Voluntary not product of police coercion b. Knowing aware of right to silence and counsel c. Intelligent aware that statement can be used against him 2. Re: waiver of rights following initial invocation of rights a. Considering this Q, especially important to separate which right has been invoked i. Right to silence ii. Or Miranda right to counsel v. Michigan v. Mosley (1975) 1. Admissibility of statements obtained after person in custody has decided to remain silent depends under Miranda on whether his right to cut off questioning was scrupulously honored 2. D invoked right to silence 3. Standard ct. uses to determine when re-interrogation can begin a. If Ds right to cut off Qing was scrupulously honored b. In this case, Ds right was scrupulously honored because i. Passage of significant period of time ii. Fresh set of warnings iii. Interrogation only about different crime c. Other factors talked about i. Different officer, different location vi. Edwards v. Arizona (1981) 1. No valid waiver of a right to counsel when accused has invoked the right but then responds to further police initiated custodial interrogation 2. Ct. also held that accused, having expressed his desire to deal with police only through counsel, isnt subject to further interrogation by authorities until counsel has been made available to him, unless accused himself initiates further communication. 3. Invocation of counsel: a. 1. Custodial interrogation must cease and b. 2. May not be reinitiated by the police c. 3. Without a counsel present 4. Right to counsel has stricter standard than right to silence Limitations to the Exclusionary Rule a. Independent Source; Inevitable Discovery (1022-39) i. X E1 Direct product (poisonous)

ii. X E1 E2 Derivative product (poisonous) iii. X E1 E2 E? Attenuation (no longer poisonous) iv. If: 1. X E1 2. X2 E1 a. Independent source doctrine v. If: 1. X1 E1 2. X2 E1 a. Inevitable discovery doctrine vi. Silverthorne Lumber Co. v. United States (1920) 1. Exclusionary R applies not only to illegally obtained evidence itself, but also other incriminating evidenced derived from it 2. X1 E1 (poisonous) 3. But X2 E1 (looks like indep source and thus not poisonous) 4. But, its more like a. X1 E1 subpoena (X2?) E1 (thus, derivative, thus poisonous) vii. Murray v. United States (1988) 1. Ct. holds that if police find product in illegal manner, but wouldve found product in an untainted legal way later, then product isnt suppressable 2. Knowledge obtained from initial illegality cant be included in application for search warrant and police intent to obtain search warrant cant be affected by knowledge from initial illegallity a. Govt. shouldnt benefit from illegal activity but also shouldnt be placed in worse position than otherwise wouldve been in if theyd gone legal route viii. Nix v. Williams (1984) 1. Inevitable discovery exception applies so Ds statements admitted. b. Attenuation (1045-93) i. Structurally initial govt. illegality that leads directly to some evidence and indirectly to some other evidence 1. Attenuation comes in as to admissibility of evidence found indirectly 2. When not suppressed as result of application of attenuation doctrine, public policy notion allowing such evidence in suppressing evidence wouldnt serve as a deterrent ii. Wong Sun v. United States (1963) 1. Is not a but for standard rather the more apt Q is whether evidence has been come at by exploitation of primary illegality of means sufficient to purge of primary taint a. no temporal proximity between acquisition of evidence and initial illegality b. significance of D returning voluntarily no coercion and intervening act of free will iii. Brown v. Illinois (1975) 1. Miranda warnings by themselves dont always purge taint of an illegal search a. Although 5th amend is in intimate relation with 4th, Miranda warnings havent been regarded as means either of remedying or deterring violations of 4th amend rights b. Factors that go into consideration of whether theres attenuation and whether statements is got at by exploitation of initial illegality in 4th amend context: i. Warnings

ii. Temporal proximity iii. Intervening circumstances (especially free will) iv. Purpose and flagrancy of official misconduct 1. Tells us how toxic poison is iv. Oregon v. Elstad (1985) 1. ST1 @ Ds home subject to suppression because is flat Miranda violation 2. After about hour at station, D given Miranda warnings and waiver ST2 covering some of same things dealt with in ST1 a. Ordinarily subsequent administration of Miranda warnings to suspect who has given voluntary but unwarned statement should suffice to remove conditions that precluded admission of earlier statement i. Differences from Brown: 1. Warnings were maybe just an oversight not purposeful and flagrant 2. In this case, correcting initial violation by giving warnings but in Brown, giving warnings doesnt cure initial 4th amend violation b. Analysis applied: i. When initial violation is Miranda violation, ordinarily Miranda warnings will be enough to be cure-all ii. When root violation is due process/5th amend violation, equivalent of 4th amend attenuation doctrine analysis applied iii. 3. Suspect who has once responded to unwarned yet uncoercive Qing isnt thereby disabled from waiving his rights and confessing after he has been given requisite Miranda warnings 4. cat out of the bag ct. has never held that psychological impact of voluntary disclosure of guilty secret qualifies as state compulsion or compromises voluntariness of subsequent informed waiver v. Missouri v. Seibert (2004) 1. Q-first tactic effectively threatens to thwart Mirandas purpose of reducing the risk that coerced confession would be admitted 2. Upon hearing warnings after making confession, suspect wouldnt think he had genuine right to remain silent a. Especially not when police begin to lead him over same ground again 3. Elstad not analogous wasnt unreasonable to see Qing at station as markedly different experience; doesnt seem to be good faith mistake on part of police a. This case wouldve been reasonable to regard two sessions as parts of continuum, in which it wouldve been unnatural to refuse to repeat at second stage what had been said before b. Ct.s factors in separating cases: i. List omits subjective intent of police officers ii. Completeness and detail of Qs and answers in first round of interrogation iii. Overlapping content of 2 statements iv. Timing and setting of 1st and 2nd same police officer, location, topic v. Continuity of police personnel vi. Degree to which 2nd round of Qing treated as continuous with 1st

4. Police didnt advise D that prior statements couldnt be used when finally did give warnings vi. United States v. Patane (2004) 1. Miranda violation ST1 E 2. Failure to give suspect Miranda warnings doesnt require suppression of physical fruits of suspects unwarned but voluntary statements a. Miranda R protects against violations of self-incrimination clause, which isnt implicated by intro at trial of physical evidence resulting from voluntary statements 3. Suspects constitutional rights not violated by negligent or even deliberate failures to provide warnings potential violation occurs only upon admission of unwarned statements into evidence at trial