§ 1. PROCEDURES AND CONTEXT

I. Daily Interactions Between Police and Citizens [pp. 3–20] A. Community Caretaking

(1) Codification: Oregon stands alone in codifying community caretaking function.

(2) State v. Dube – The police officers’ initial entry into an apartment due to an emergency was legitmate under their community caretaking function (statutorily authorized), but their continued stay was improper.a. Impact – Ct. sanctions the presence of police in apt (if landlord can

enter, so can cops) we can expect an increase in that activity.(3) State v. Stowe – Officer was justified in believing that who was in a

drunken state in the street was acting in a manner which would foreseeably disturb or alarm the public officer had probable cause for arrest; since engaged in making lawful arrest, no consent to battery that D inflicted

(4) Comm. caretaking v. criminal enforcement: Comm. caretaking can change into criminal enforcement (most police work falls into former and thus not regulated by courts).a. Crime v. civil violation – Legislative choice between making an act

a crime or civil violation may affect caretaking or crim. enforcement

(5) Resisting unlawful arrest – Some states recognize that a citizen can resist an unlawful arrest, while others require submission.

B. Police Enforcment of Civility – Protection of the police’s idea of their own authority.

(1) St. Paul v. Morris (MN) – Calling the cops “white mother f—kers” constituted disorderly conduct because legislation relating to disorderly conduct also embraces acts corrupting the public morals or outrage the sense of public decency; cops should not be subjected to vulgarity that ordinary citizens are not

(2) State v. Janisczak (ME) – screamed and yelled “f—k you” to cops while protesting arrest of a motorist on the highway; state may only prohibit fighting words or speech that produces or is likely to produce clear and present danger of substantive evils; words here did not meet this threshold; cops are better trained to deal with vulgarity

(3) Majority view: Morris may appear to be a product of its time, but some courts still uphold disorderly conduct convictions for what is little more than profanity.

C. Policy Questions – What are the goals of policing?(1) How much regulation do we want over police? How much discretion

should we give police?(2) What kinds of regulations are the best?

a. Constitutional control – Takes community caretaking from the hands of the political process.

b. Other possibillities: Statutes, admin. reg. (executive controls), elections, etc. – Brings the control closer to the process.

(i) Living in the community? Cops living in the communities they police.

(3) How best to bring accountability?II. Traditional Policing v. Community Policing [pp. 20–36 & Supp.]

A. Historical Transformation of the Basis of Legitimacy(1) Until 1940s – Police depts directly controlled by local political leaders

and responded to a variety of local needs.(2) 1940s-1980s – “Reform Era” – Police moved to narrow their functioning

to crime control and criminal apprehension; police agencies became law enforcement agencies.

(3) Past 20 yrs – “Community policing” – Shift in control over police resources from central mgmt into each community, a broadening of the goals beyond crime control. Philosophy differs from traditional policing because it is an interactive process between the police and the community to mutually identify and resolve community problems:a. Results v. Process – Orientation toward problem solvingb. Values – Policing values incorporate citizen involvementc. Accountability – Understanding what’s important to particular

neighborhoodsd. Decentralization of both authority and structure.e. Empowerment of beat officers – Encourage cops to initiate creative

responses to neighborhood problems.f. Supervision and management – Patrol cop becomes the manager of

his beat, first-line supervisor is the trainer, coacher, and coordinator; management provides resources.

g. Training – Reflects new philosophy & illuminates police-community relationship to recruits and cadets.

h. Performance evaluation – Criterion becomes the absence of incidents.

i. Managing calls-for-service – Manage time of cops so that they are available to engage in problem-solving and community-organizing activites leading to improvements in the quality of neighborhood life.

B. Curfew Laws – Juvenile curfews grant powerful discretion to police officers.(1) 3 Possibilities

a. Mandatory enforcementb. Less but targeted enforcementc. No enforcement

(2) Role of the statutea. Does the existence of a “gang loitering statute” really grant more

power to the police? (i) Such a role may already be part of their community caretaking

function. Depends on the history and context of policing.

III. Borders of Criminal Procedure [HO #1 re: Morales] (From M. Adiga)I. Definition of Border

A. View about the ordinary behavior of the police shapes the processes that govern the less ordinary confrontations between citizens and officers

II. Amicus brief against the anti-loitering statuteA. Tensions have always existed between police and minorities and it continues into today.

B. The ordinance is unconstitutionally vague as it fails to define in any meaningful way the conduct that is prohibited.

(1) Desire to combat crime cannot suspend Constitutional protections against vague laws.

C. The ord directs the police to arrest and prosecute thousands; not to be innovative with community’s problems. There were more than 41,000 arrests.D. No evid that the ord reduced crime.E. Ord impermissibly leaves enforcement to the unconstrained predilections of the police

(1) Ord gives PO an unfettered discretion to decide that person doesn’t have an apparent purpose and is therefore loitering.a. The discretion is subjective and standardless

F. Ord applies not only to gang members but to people who are deemed to be loitering with gang members.G. Ord gives PO discretion to decide that person failed to “move on”

(1) How far is one to move?(2) For how long?

H. Ord does not explicitly say what exactly is prohibited.I. Argument that minority community wants this law is wrong

(1) Minority community does not speak with one voice. There is substantial opposition to this law within minority community

(2) Once members of minority group attain a degree of political power, it does not mean that they can’t discriminate against their own community.

J. This is contrary to community policing – which is to strengthen relationships between police and community residents and to use innovative, flexible solutions to community problemsK. The sheer numbers of arrest show that there is contempt for police and not a partnership between police and community.

III. Chicago v Morales, 527 US 41 (1999) - Chicago enacted an ordinance, which prohibited criminal street gang members from loitering in any public place. Supreme Ct struck down the ord because it violated the due process clause of 14th Amendment. If PO observes a person who he reasonably believes to be a gang member loitering in a public place with one or more people, PO can order them to disperse. The ord tries to limit officer’s discretion by confining arrest authority to designated officers, estab detailed criteria for defining street gangs and providing for designated but publicly undisclosed enforcement areas. Ord requires 4 predicates: (1) PO must reasonably believe that at least 1 person is a gang member, (2) person must be loitering with no apparent purpose, (3) Po must order them to leave the area, (4) person must disobey the order. Dt commanders designated areas in which this would take place,A. Old Ordinance

(1) Balance between crime control and due process values(2) Lots of ordinances give PO discretion

a. PO may want guidance of how far def can go before PO need to arrest them.

(3) Had vague ordinance with detailed general order (p4-7- HO)a. The GO will help from the PO’s standpoint but not from the

public’s standpoint.b. However, the general order has to be passed by Police Board,

which is made up by civilians(4) Problems on ways to enforce ordinance are problems of discretion(5) Original Ordinance

a. NO apparent purposeb. Designation of areas

(6) General Ordera. Identification of gang membersb. Pick areasc. Limits PO who can arrestd. Aggregate amount of discretion is limited here. However, a

particular PO has lots of discretione. Has structural methods of limiting discretionf. Unlike disorderly conduct – where any PO can enforce the law

anywhere and against anyone.B. Ct – ord was unconstitutionally vague and did not meet the fair notice requirement because it did not provide adeq notice of what was prohibited conduct.C. Ord also violated the req that a legislature estab minimal guidelines to govern law enforcement.D. Justice Stevens

(1) Issue – Whether IL SC correctly held that ord violates Due Process Clause of 14th Amendment.

(2) City Council found that gang activity was responsible for city’s rising murder rate and violence.

(3) Ord’s broad sweep violates the req that a legislature estab minimal guidelines to govern law enforcementa. No apparent purpose stnd is subjective because its application

depends on whether some purpose is apparent to PO(4) Ord encompasses harmless behavior(5) Gives PO too much discretion in determining what activities are loitering. (6) The three features that limit officer’s discretion is insufficient.

a. Not applied to one moving along or who has apparent purposeb. No arrest if indiv follows dispersal orderc. Officer must reasonably believe that one of loiterers is a gang

member.(7) City believes that ord resulted in decline in gang-related homicides.(8) The ord is unconstitutionally vague.(9) This law does not have a substantial impact on conduct protected by 1st A

to render it uncons (overbreadth doctrine). However, US recognizes the freedom to loiter for innocent purposes protected by the Due Process of 14th Amendment

(10) Vagueness of ord makes a facial challenge appropriate(11) Vagueness can invalidate a law for two reasons

a. Fail to provide notice that would enable ordinary people to understand what conduct is prohibited. Forbidden conduct is not clear

(i) “apparent purpose” is hard to define.(ii) No additional “loitering with intent” that may make this cons.(iii) If loitering is innocent, then a dispersal is an unjustified

impairment of liberty.(iv) When PO asks for dispersal, how long must they remain apart

and how far. Too vague.b. It may authorize and even encourage arbitrary and discriminatory

enforcement.

(i) No sufficient limits of enforcement discretion(12) The statute has perverse conseq in that it may have no application to

loiterers whose purpose is apparent.(13) Protect liberty interests(14) Nothing to say about structure

E. O’Connor concurrence(1) Ord is uncons vague because fails to provide any stnd by which police

can judge whether an indiv has an apparent purpose.(2) Legis must estab minimal guidelines to govern law enforcement.(3) Chicago has reasonable alternative to combat gangs.(4) Chicago can construe the ordi more narrowly to combat the vagueness

problem. But, the Court cannot impose a limiting construction that a state supreme court declined to adopt and Court is bound by IL ct’s construction of the ord.

(5) This is a narrow holding and other laws exist that can fulfill same goals.(6) author of Kolander v Lawson(7) Worried about how to deal with innocent behavior(8) Wants to limit discretion by adding “intent” (substance rather than

structural)(9) If have substantive intent, then ord will be fine.

F. Breyer(1) Worried about anti-delegating(2) Political process issue

G. Thomas’s Dissent(1) Ord is not vague (2) Ord does not violate Due Process.

a. have long history of antiloitering and vagrancy laws.b. There is no constitutional right to loiter

(3) Ord does not criminalize loitering per se. Rather is punishes indiv’s refusal to follow PO’s orders.a. This is part of the PO’s fxn to preserve the public peace.b. To fulfill this fxn, PO must exercise discretion.

(4) There is nothing about an order to disperse.(5) Defn of loiter is easy enough to figure out.(6) Not allowing this law will only hurt the good decent people of the

communities that have gangs.(7) The Ct focuses only on the rights of gang members.(8) Who ought to decide?(9) History / tradition

H. Scalia(1) Facial challenge

I. Kennedy(1) Notice

IV. Structural versus SubstantiveA. Which is better to constrain discretion?B. Structural

(1) Limits number of police, where they can stop(2) Limits total amount of discretion(3) Not one of the justices looked at structure

(4) Old ord does not have structural mechanisms to limit discretion (time to disperse and for how long)

V. New Chicago Anti-Loitering OrdinanceA. One of the methods that gangs use to estab control and intimidate is by loitering without committing any crimes so they avoid arrest.B. City has an interest in discouraging people from loitering because they’re at risk from shootings, etcC. Loitering is prohibited from certain areas. People must disperse themselves from sight and hearing of the place for the next 3 hours.D. Police superintendent determines the designated areas after consulting people familiar with the areas – PO, community leaders, CAPSE. Prohibits gang loitering and narcotics related loitering versus loiteringF. Has time limitationsG. Must inform def that they’re engaged in gang loiteringH. Areas of dispersalI. Superintendent designates areasJ. Special training (this was in GO, but now in ord itself)K. Defines loitering – taken exactly from O’Connor’s opinionL. Addresses substantive limitations on discretion of individual limitation

(1) Concern of O’Connor and BreyerM. Have structural limitations of police power as a whole

VI. Ques – Is it better to not have ordinance with police discretion as community caretaking fxn or to limit discretion formally

§ 2. BRIEF SEARCHES AND STOPS

I. Stops and Reasonable Suspicion [pp. 37–41, 43–60]A. Traditional framework – Fourth Amend. incorporates a strong preference for warrants, a judicial determination that a planned search is justified.

(1) Justification – For a valid search or seizure, whether carried out with or without a warrant, was probable cause.

(2) Changes in the traditional framework – Caused basically by 3 cases:a. Katz v. United States – Changed the method of deciding whether a

person had an interest that the 4th Amend. would protect.(i) Moved away from concepts of protected physical spaces

(property) concepts if individual privacy.b. Terry v. Ohio – Established a category of limited stops and

searches on a standard less than probable cause: reasonable suspicion.

c. Camara v. Municipal Ct – Created a new method for justifying what the gov’t would need for a search, by balancing competing interests to determine the level of necessary justification.

B. Consensual Encounters and “Stops”(1) Wesley Wilson v. State(WY) – Where an initial encounter between an

officer and was prompted by the officer’s concern for the safety of the citizen, there was no seizure. But when the officer gave the an instruction to wait, a seizure occurred. Since the officer had no specific articulable facts sufficient to create a reasonable suspicion of past or present criminal conduct, the seizure for the purpose of completing a local warrants check was impermissible as a matter of law.

(2) Majority Rule – United States v. Mendenhall – An encounter between a police officer and a citizen becomes a “stop” when a reasonable person in that situation would not “feel free to leave” or to refuse to cooperate. Look at the totality of circumstances.a. Florida v. Bostick – Where the police confront in a bus, although

he was not literally ‘free to leave’ during the questioning because the cops blocked the aisle, he was ‘free to decline the officer’s requests or otherwise terminate the encounter.’

(3) “Reasonable justification” for a stop – For reasonable justification, the police must believe that the person has committed or will commit a crime.

(4) Asking for name and id – More than 20 state legislatures have passed statutes empowering police officers to ask for identification.a. Note: Subjective intent of the police officer is irrelevant.

C. Grounds for Stops: Articulable, Individualized Reasonable Suspicion(1) State v. Nelson – drinking beer at 1:30 a.m. in parking lot; Stop of ’s

motor vehicle held unlawful because there was nothing support the officer’s suspicion that was operating under the influence other than his observation that consumed 1 beer over 1 hr. Reasonable suspicion requires more than mere speculation; no evidence that the cop observed indicia of physical impairment or anything unusual.

(2) State v. Dean (ME)– Do two facts raise “reasonable suspicion”? (1) ’s presence in an area of recent crime reports; and (2) apparent absence of any reason to be in an uninhabited area at night. Held: A person’s mere presence in a high crime area does not justify an investigatory stop, but the combination of factors (i.e. time of day and uninhabited area) creates reasonable suspicion.

(3) Majority Rule – There are no general categories of facts that can support a finding of reasonable suspicion. In virtually all cases, the conduct of the suspect said to be the basis for reasonable suspicion does not violate the criminal law.a. California v. Hodari – Cops chased s. S.Ct. held, for there to be a

“seizure” there must be 2 considerations:(i) must yield to police authority;(ii) Some force must be exerted against the .

II. Basis for Reasonable Suspicion [pp. 61–66, 67–69 nn 1, 3, 4, 6, 71–77, HO #2 re: Wardlow]A. Criminal Profiles and Police Expertise

(1) Nature of Profiles – Lists of personal characteristics and behaviors said to be associated with particular types of crimes, typcially drug trafficking. Sometimes quite specific, while other times relatively short and general.

(2) Quarles v. State (DEL) – Bus exiters matched profile of drug traders, seizure upheld. 2-Pronged assessment of police conduct:a. “All the circumstances” including objective observations and

consideration of the modes or patterns of operation of certain kinds of lawbreakers;

b. Inferences and deductions that a trained officer could make which might elude the untrained eye.

(3) Majority Position – Most cts. don’t allow a match with the profile alone to constitute reasonable suspicion. Federal law is agnostic, placing no independent weight (+ or –) on the existence of a profile.a. Minority Position – Rejection or critical of any reliance on the

use of profiles to add any weight to field observations.(4) Officer expertise – Cortez (US)– When used by trained law enforcement

officers, objective facts, meaningless to the untrained, can be combined with permissible deductions from such facts to form a legitimate basis of a particular person.

(5) Collective judgments and expertise – Officers make stops based on not only their own expertise but also the expertise in law enforcement because the “profile” places significance on certain facts.

(6) Efficiency in proof – Can profiles, when carefully constructed and meticulously proven in early cases, prove an efficient way of avoiding duplicative presentation of evidence in later cases?

B. Cases for Reasonable Suspicion(1) Terry v Ohio – Police officer must point to specific and articulable facts.(2) Cortez – How would a trained officer view the circumstances?(3) Sibron – Hunches are insufficient. To say the “guy looked suspicious” is

insufficient to constititute “specific and articulable facts”(4) Sokolow – Burden of “reasonable suspicion” is considerably less than the

burden of preponderance of the evidence.C. Race as a Component of Reasonable Suspicion to Stop

(1) Coleman v. State (DEL) – Where the police had information regarding not only the race of the suspect, but gender, approximate height, and indications of facial hair in addition to the location to the suspect and the fact was not wearing a coat all were legitimate factors that, under the totality of cirumstances, provided reasonable suspicion to stop the .

(2) Majority Position – Most cts. will allow the police to rely on race as one of many components of reasonable suspicion, particularly if the police use the race as an element of the description rec’d from the victim or witness of the crime.a. Where the person seems to be ‘out of place’ (e.g. Black in white

neighborhood), cts are split on whether such a fact can be the primary component of reasonable suspicion.

(3) Patterns of discrimination in stops – If race is one of the most salient criteria to patrolmen in deciding whether or not to stop someone, then how is race simply one “factor” that contributes to the finding of reasonable suspicion?

(4) Avoiding or fleeing from the police as the basis of reasonable suspicion.a. Illinois v Wardlow – Running away from the police may provide

grounds for reasonable suspicion. b. Policy question: How suspicious is running away from the police

in a high-crime area?(i) Evidence: Federal case: African-Amer’s are more likley to run

from the police than others in NYC. Because of this, the stop occurred at the point where the person started running. Judge rev’d himself.

III. Pretext Stops – Driving While Black [pp. 77–82, HO #2 re: Ladson instead of Tate, pp. 84–87, HO #2 re: DWB]

A. Pretext Doctrine – Where an officer has multiple reasons to stop a person, including reasonable suspicion of one crime, must the suspicion and purpose match?

(1) State v. Lopez (Utah 1994) – The pretext doctrine is unnecessary to protect citizens from unreasonable searches and seizures. 3 Rationales:a. “Reasonable scope” requirement precludes the cop from

investigating such motivations or suspicions because the detention can “last no longer than is necessary to effectuate the purpose of the stop.”

b. Pretext stop doctrine erroneously turns on the subjective motivation of the detaining police officer, which is inconsistent with the 4th Amend.

c. Pretext stop doctrine discourages equal protection of the law by permitting the ordinary speeder to be successfully prosecuted for robbery based on evidence found in plain view during the stop, but the speeder suspsected of robbery with similar evidence goes free.

(2) State v. Ladson (Wash ’99) – Under Wash. Const., there is a constitutionally protected interest against warrantless traffic stops or seizures on a mere pretext to dispose with the warrant when the true reason for the seizure is not exempt from the warrant requirement.

(3) Majority Position – Pretextual stops upheld. Most courts follow the “could” test—objective std.—and refuse to question the legitimacy of allegedly pretextual stops, so long as the officer was aware of facts sufficient to justify a stop for a traffic offense.a. Whren v. United States (US) – An officer’s subjective motivation is

immaterial. If the officer chooses between the person in the SUV fitting a profiles that is speeding but not the professor in the Volvo, it is ok because there is objective justification for the stop.

b. Trend – Toward the death of the pretext doctrine.(4) Attempt to clean up reasonable suspicion doctrine. Cops will stop

individuals who are clearly violating the law (e.g. traffic laws) because the suspect the individual is doing something in addition to the minor violation (e.g. drug possession).

B. Driving While Black – (1) Backdoor to pretext – Although challenges to the pretext doctrine have

not been quite that successful, a related claim that police stop motorists based at least partly on race has achieved more success.

(2) 2 Basic Problemsa. Willful misconduct by a small number of state police members;b. More common instances of possible de facto discrimination by cops

who may be influenced by stereotypes and may thus intend to treat minority motorists differently during the course of routine traffic stops, subjecting them more routinely to investigative tactics and techniques designed to ferret out illicit drugs and weapons.

(3) Factors to consider – Report of NJ Atty Generala. Lack of legitimate criteria for selecting vehicles;b. Accumulation of circumstances creates unintended message that

the best way to catch drug traffickers is to focus on minorities;c. Subtle messages in training programs may reinforce preexisting

stereotypes;d. State police reward system give practical impetus for using

inappropriate stereotypes about drug dealers.

(4) Distinction between legitimate crime trend analysis and racial profilinga. Police should make use of race-neutral information that reasonably

bears on the likelihood that an individual is engaged in criminal activity.

b. Race should play no part in an cops determination of whether a particular person is reasonably likely to be engaged in criminal activity.

c. Circular logic – Using race and ethnicity in crime trend analysis demonstrates the flawed logic of racial profiling, which largely reflects a priori stereotypes that minority citizens are more likely than whites to be engaged in certain forms of criminal activity.

(5) Solutionsa. Camerasb. Collecting statistics make publicc. Statewide trainingd. Mechanism for early detection of potential profilinge. Greater guidance for police use of discretion more of a standard.

IV. Sobriety Checkpoints; Plain View [pp. 87–112, HO #3 re: Bond]A. Brief Administrative Stops – These stops and searches sometimes take place in the absence of reasonable suspicion to believe that the law has been violated. The justification for brief admin. stop is programmatic, rather than individualized.

(1) Pimental v. Dept of Transportation (R.I. 1989) – Police dept established a sobriety checkpoint, which was announced, and police stopped all vehicles passing through the checkpoint area. Stops not upheld because the balance of the sobriety checkpoint’s promotion of legitimate governmental interests and public policy did not outweigh the intrusion on individual 4th Amend. rights, despite guidelines trying to protected motorists from the discretionary conduct of individual police officers.

(2) Sobriety Checkpoints: majority position – Mich Dept of Police v. Sitz – Sobriety checkpoints upheld without reasonable suspicion where there were (1) neutral guidelines for carrying out the roadblock formulated by non-field cops; and (2) those guidelines reduced intrusion, objective and subjective.a. Objective intrusion – Duration of the stop and the intensity of the

questioning.b. Subjective intrusion – Anxiety of the law-abiding drivers when

unaware of the purpose of the stop.(3) Minority position – Abt. 10 states, incl. MI, follow Pimental and require

individualized suspicion before a vehicle stop may occur.(4) Balancing methodology – Cts. balance the intrusinvess of the search

against the individual’s interest in privacy.(5) Roadblocks to find particular criminal suspects – Cts. evaluating

these roadblocks tend to approve them more readily if (1) the crime is serious & (2) officers administer the roadblock in an evenhanded way that minimizes delay and other intrusion.

(6) Indianapolis v. Edmund – Use of license check plus a drug-sniffing dog stricken where the police admitted that the purpose was crime control and not public safety.

(7) Fixed & Roving stops for immigration enforcement –

a. S.Ct. has disapproved of ‘roving’ suspicionless stops of vehicles. Brignoni-Ponce.

b. S.Ct. has upheld suspicionless stops of cars for brief questioning at fixed checkpoints at or near the border. Martinez-Furerte.

(i) Unusually long detentions – S.Ct. requires reasonable suspicion for unusually long detentions of persons at the border. Montoya de Hernandez.

(8) “Freezing” the situation – It may be necessary for police cops investigating a reported crime scene to have some limited authority to “freeze” the situation. Even where no person can be singled out as a probable offender, cops must sometimes be able to take some action intermediate to that of arrest and nonseizure activity.

B. Gathering Information Without “Searching” – Like stops, figuring out whether there has been a “search” is a very fact intensive process.

(1) Plain Viewa. Majority Position – If an officer sees an item in plain view, no

search has occurred. To qualify for such treatment, the police officer must be viewing the item from a place where she has a right to be. Whether it is a search or nonsearch, depends on the officer’s justification for being in the location.

b. Seizure after plain view – After a cop has some contraband or evidence of a crime in plain view, he may affect seizure only if it is located in an unprotected area.

(i) If the item is located in a protected area, the officer must: Obtain a search warrant; or Explain why an exception to the warrant requirement apply.

(ii) Coolidge v. NH (S.Ct. 1971) – Warrantless seizure of item in plain view is acceptable if cop: (1) observes the item from a lawful location; (2) discovery is inadvertent; and (3) its incriminating nature is immediately apparent.1. With drugs, this is easy. In other cases, the cop might

know enough about an ongoing investigation to link the item to a crime.

c. Police “inadvertence” – (i) Majority view: Police may observe and seize an item in plain

view, even if the cop intended to find it. Horton v. Calif (S.Ct. 1990)

(ii) Minority view: Some states follow the old S.Ct. rule and require “inadvertence” in the discovery, e.g. Hawaii.

d. Plain Smell and Hearing – Where an officer stands somewhere he is entitled to be and either smells something or hears something that provides some suspicion or evidence of crime, there is no “search” under the 4th Amend.

e. State v. Meyer – Where a governmental agent is engaged in a lawful intrusion and inadvertently observes evidence of a crime, the seizure of such evidence does not require any further constitutional protection.

(2) View from “legal,” but unusual positions.a. Henderson v. People (Colo 1994) – Police use of helicopter to “fly

over” ’s property to observe marijuana did not constitute a

“search” because under the totality of the circumstances did not have a reasonable expectation of privacy.

b. Flyovers and reasonable expectations of privacy – Florida v. Riley (S.Ct. 1989) – Flyovers don’t constitute intrusions on property holder’s reasonable expectation of privacy, where they fly within FAA regulations; where it creates enough noise, dust or threat of injury, it might be considered a ‘search.’

c. Subjective expectations – Katz v United States Rule: A litigant hoping to establish a “search” under 4th Amendment must establish:

(i) Person has exhibited an actual (subjective) expectation of privacy; and

(ii) That expectation is one society is willing to recognize as reasonable.

(3) Abandoned Property, Garbage “Searches”a. Majority rule: S.Ct. and more than half the states hold that there

is no reasonable expectation of privacy in trash put out for collection and therefore no constitutionally relevant search if gov’t agents inspect the trash.

b. Minority rule: Consider that there is a reasonable expectation of privacy in trash.

(i) Location – Some cts. have looked to where the trash has been placed: behind the home or on the street corner.

(ii) Open fields doctrine – Oliver v. United States (S.Ct. ’84) – Open fields do not provide the setting for those intimate activities that the 4th Amend. intends to shelter from gov’t interference or surveillance.

V. Brief Searches of Individuals [pp. 113–131, HO #3 re: A. Schwartz]A. Frisk for weapons

(1) Definition of a frisk – Brief search of a suspect’s body.(2) Terry v. Ohio (1968) – Ct. performed a balancing analysis for

“reasonableness” to hold that this kind of search need not be judicially approved by a warrant. “There is no ready test for determining reasonableness other than by balancing the need to search or seize against the invasion which the search or seizure entails” The purpose of the ‘frisk’ is to protect the police officer and the people around him.a. 2 Different Standards:(i) For a stop: Are there “reasonable and articulable facts” for the

officer to believe that a crime is afoot?(ii) For a frisk: Cop can only engage in that kind of search if they

feel in danger for himself or those around him – reasonable suspicion.

b. DOUGLAS, J., dissenting – Concerned that government agents could manipulate too easily any std. less than probable cause.

(3) Policy question – Why have two different stds? If a frisk is more intrusive and more likely to reveal evidence of crime, then the S.Ct. may have wanted to limit the number of frisks. a. But that could be achieved by raising the threshold requirement

for stops!B. “Plain feel” doctrine

(1) Commonwealth v. Arthur Crowder (Ky 1994) – Under Minneapolis v. Dickerson (S.Ct. 1993), a narrowly drawn exception to the warrant requirement is appropriate when: (1) the requirements of Terry are otherwise complied with and (2) the non-threatening contraband is immediately apparent from the sense of touch. If the nonthreatening contraband is immediately apparent from the sense of touch, during an otherwise unlawful patdown, an officer should not be required to ignore it.

(2) Majority Position: Dickerson rule: If an officer conducts a properly circumscribed Terry search for weapons and feels an object that is not a weapon, the officer can seize the item if it is “immediately apparent” that the item is contraband or evidence of a crime.a. New York position – The proposed “plain touch” exception could

thus invite a blurring of the limits to Terry searches and the sanctioning of warrantless searches on information obtained from an initial intrusion which, itself, amounts to an unauthorized warrantless search. People v Diaz (NY 1993).

C. Terry searches of stopped cars(1) Michigan v. Long (S.Ct. 1983) – Police officers who stop a vehicle and

frisk the driver standing outside the car may conduct a further “protective” search of the passenger compartment and any containers inside it that might contain a large weapon such as a gun.a. New York position – Police officer could not search the interior of

a stopped vehicle for weapons based only on reasonable suspicion. People v Torres.

(2) Purses, briefcases, and bags. Police commonly extend protective Terry searches to purses, briefcases, and other items a suspect might hold at the time of stop. They must start with a “frisk” of the exterior of a cloth bag, and may not open the bag to search its contents if the initial frisk confirms there is no weapon inside.

(3) Orders to exit a vehicle. Penn v Mimms (S.Ct. 1977) and Maryland v Wilson (S.Ct. 1997) – Police may order the driver or passenger to exit a vehicle without any justification.

§ 3. FULL SEARCHES OF PEOPLE AND PLACES

I. Origins of the 4th Amendment [pp. 133–43, HO #3 re: 4th Amend.]A. General Search Warrants

(1) Battle over general warrants and writs of assistance – The English legal system was rejecting general warrants at the same time such warrants were being used in the American colonies.

(2) Constitutional debates – The incidents discussed most during the Const’l debates involved warranted searches rather than warrantless searches. Warrants issued from an authority with proper jurisdiction became a defense for the gov’t cop.

(3) Civil origins of criminal procedure – If the law of search & seizure now seems obsessed with evaluating the privacy interest of jacket pockets or paper bags, that is the consequence of the strong tradition of using Fourth and Fifth Amend. law as a shield against gov’t information gathering – a tradition that has more to do with protecting free speech than with regulating the police...[The Fourth and Fifth Amend’s odd history] has more to do with the substantive law of crimes, with what

activities the government should and should not be able to punish. –Stuntz

B. The Language of the Fourth Amend. and its Analogs(1) Doctrine of Incorporation – Cts. did not treat the Fourth Amend. as a

limit on the power of state gov’ts until Wolf v. Colo (S.Ct. 1949).a. The varying language of the state 4th Amend. analogs creates

room for differing interpretations of the scope of the rights they protect. But variation in language is not determinative: some states with provisions identical to the 4th Amend. have interpreted their language differently.

(2) 3 Basic Issues Underlying Many Difficult Questions Regarding the law of Search and Seizure:a. The choice between probable cause and reasonableness – Do the

4th Amend and state analogues provide one std. to determine the validity of gov’t searches and seizures?

b. The preference for warrants – How strong is the presumption for warrants?

c. The nature of warrants – For searches based on warrants, what limits should be placed on their issuance, content, or effect?

II. Probable Cause [pp. 143–72]A. Defining Probable cause – 4 Elements Capture the variation in definitions:

(1) Reasonable to whom? – Some jurisdictions look at a “reasonably prudent” or “cautious” person, while others focus on what the officer knows.

(2) Strength of connection – Different formulations define the required strength of the link between the fact offered and the conclusion that criminal activity has occurred.

(3) Comparison to other stds – Some jurisdiction not only define the probable cause std. but also suggest its limits through comparison with other procedural stds.

(4) Quality of information – Some jurisdictions enhance their general definition of probable cause by requiring the assessment be based on evidence that is reliable, trustworthy, or credible.

B. Probable cause and probabilities – Cts. in all jurisdictions have insisted that probable cause is something less than “beyond a reasonable doubt” but greater than “mere suspicion,” but they have shied away from equating with the preponderance std.C. Police expertise in assessing probable cause – Police will often rely on their training and experience in assessing probable cause.

(1) How specialized? – Should the judge attribute the same level of experience to all officers or to those within a particular unit of the police dept., e.g. narcotics?

(2) Actual knowledge of cop – Existence of probable cause usually depends on the facts available to the cop in the field, not just the facts the cop actually relies on to justify a search or seizure.a. Collective information doctrine – Some jurisdictions test

probable cause based on the collective information the police have, even if no indiv. cop or dept. has all of that information. See also In re M.E.B.

(3) Sources of Information to Support Probable Cause – Info. needed to show probable cause comes from varied sources, e.g. s, other witnesses, anonymous sources, confidential informants, and cops.

D. Confidential informants – S.Ct. has developed specialized rules for judging the reliability of information from informants.

(1) Gates test versus Aguilar-Spinelli test:a. Illinois v. Gates – “Totality of circumstances” std. for case-by-case

analysis of probable cause based on all of the facts presented to the judge issuing the warrant, not merely those capable of categorization as indicating the “veracity” or “basis of knowledge” of a particular informant.

(i) 30 states have adopted the Gates “totality of circumstances” std.

b. Aguilar-Spinelli – Two-pronged test: Judge issuing the warrant must be apprised of:

(i) Some of the underlying circumstances relied on by the informant in concluding that the facts are as he claims they are;

(ii) Some of the underlying circumstances from which the cop seeking the warrant concluded that: The informant, whose identity need not be disclosed, was

credible; or The information was reliable.

(iii) Exception: Under the A/S test, probable cause may still be found if the warrant application affidavit sets forth other circumstances – i.e. independent police corroboration of certain details provided by the informant – that bolster the deficiencies.

(iv) Fewer than 10 states have retained A/S test.c. Policy Argument: A/S structure may be desirable because people

may often care more about the procedures by which decisions are made rather than the outcome.

(i) But , does the A/S test train our attention too much to the protection of privacy as the foremost value rather than the control of police discretion?

(ii) Gates std. is designed to place more responsibility for probable cause finding in the hands of the fact finder on the scene: the magistrate reviewing the application for a warrant.

d. State v. Barton (Conn 1991) – Adopting the Gates test.e. State v. Utterback (Neb 1992) – Gates: among the ways the

reliability of an informant can be established are by showing in the warrant affidavit that:

(i) The informant has given reliable information to police cops in the past;

(ii) The informant is a citizen informant; Note : Most cts. presume info. provided by victims and

witnesses to be sufficiently reliable to serve as a basis for finding prob. cause without additional proof that the source is credible or the info. reliable.

(iii) The informant has made a statement that is against his personal interest;

(iv) Police cops independent investigation estab. the informant’s reliability or the reliability of the info. the informant has given.

E. Anonymous Sources(1) Anonymous tips and probable cause: majority position – No special

framework for assessing probable cause based on info. from an anonymous tip. Gates or Aguilar-Spinelli test is applied.a. Under Aguilar-Spinelli regime, you cannot have an anonymous tip

provide the (almost sole) basis of a warrant because there would never be any corroboration for the credibility of an informant.

(2) Anonymous tips and reasonable suspicion to stop vehicles – Police generally need reasonable suspicion to justify a police stop of a person/vehicle. If an officer stops a vehicle on the basis of an anonymous tip without first developing some indep. basis for reasonable suspicion, cts. often overturn the stop. Cf. Ala. v. White (S.Ct. 1990).

F. Statutes and Rules Clarifying the Assessment of Probable Cause(1) Ark R. Crim Proc. 13.1 – “Failure of the affidavit ... to establish the

veracity and bases of knowledge of persons providing info. to the affiant shall not require that the application be denied, if the affidavit or testimony viewed as a whole, provides substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found...”

(2) Iowa Code § 808.3 – “[I]f the grounds for issuance are supplied by an informant, the magistrate shall identify only the peace officer to whom the information was given but shall include a determination that the information appears credible because either sworn testimony indicates that the informant has given reliable information on previous occasions or because the informant or the info. provided ... appears credible.”a. Iowa S.Ct. – Concluded that § 808.3 was a reaction against Gates.

(3) Oregon – Offers a general statutory definition of probable cause.III. Alternatives to Probable Cause; Exigent Circumstances [pp. 172–76, 176–81, HO

#3 re: Montoya de Hernandez]A. Highly intrusive searches: Probable cause “plus” – Most cts. require the gov’t to justify the use of an especially intrusive bodily search with something more than probable cause.

(1) State v. Jerome Strong (Iowa 1992) – S.Ct. rule of Winston v. Lee: When a warrantless search involves an intrusion into the body, a more demanding test (than probable cause coupled with exigent circumstances) must be met:a. To what extent does the proc. threaten the indiv’s safety or health?(i) Have all reasonable medical precautions been taken? No

unusual tests?b. To what extent does the test intrude on the indiv.’s dignity,

personal privacy, and bodily integrity?c. How much interest does the community have in fairly and

accurately determining guilt or innocence?(i) Efficacy : How certain is the test likely to produce the desired

evid.?(ii) Exigency : How likely is the evidence to be destroyed if not

collected?(2) Schmerber v. Calif. (S.Ct. 1966) – When the gov’t uses force to carry out

a bodily search, e.g. blood sample MD took from suspect, reasonable where: (oddball case)

a. Likelihood it will produce evidence of crime – There was a ‘clear indication’ that the blood sample would produce evidence of a crime.

b. Routine or unusual methods – Test was ‘commonplace’ and involved little risk or trauma;

c. Test performed “reasonably” – Test conducted in a ‘reasonable manner,’ by MD in hospital.

B. Exigent Circumstances – Exception to the warrant requirement, where an immediate search or seizure is needed to protect the safety of an cop or the public, or when the suspect might escape or destroy evid.

(1) Majority position: Grounds for exigent circ’s: (1) destruction of possible evid.; (2) escape of suspects; (3) danger to investigating cops or citizens.

(2) Hawkins v. State – State failed to show they faced with circumstances making it impracticable to wait for a search warrant before entering the premises.

(3) Form of search and seizure arguments – To analyze a case: 1) Consider all plausible arguments and evid. the gov’t might offer to justify a search; 2) Consider all plausible arguments and evid. might offer that undermines the govt’s arguments; 3) Assess the strength of the arguments, and predict the most likely decision by the ct.

(4) Creating exigencies – Ask whether the police created the exigency. Hawkins, “exigent circumstances cannot be created by police cops to justify warrantless searches.”

(5) Maintaining the status quo while seeking a warrant – Segura v. United States (S.Ct. 1984) – Search held valid where police cops remained in an apt. for 19 hrs. until they obtained a warrant.

(6) Special status of homes – Many of the exceptions to the warrant req’t applicable outside the home do not apply in the same way within a home, and cts. tend to demand greater justifications for warrantless searches of a house.a. Cars in Indiana – Indiana has found a similar preference for

warrants for the search of parked and impounded cars.C. International Borders

(1) U.S. v. Montoya de Hernandez (S.Ct. ’85) – 4th Amend. requires balancing intrusion on individ.’s interests against promotion of legitimate gov’tal interests. Consistent with Congress’ power to protect the Nation by stopping and examining persons entering the country, the 4th Amend.’s balance of reasonableness is qualitatively different at the international border than in the interior. Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause or warrant.

a. Continued detention – requires reasonable suspicion.IV. Warrants [pp. 181–87, 194–212]

A. Requirements for Obtaining Warrants(1) Neutral and Detached Magistrate – Issues of judicial neutrality are

usually litigated under judicial ethics rules.a. State ex rel Brown v. Dietrick (Wva 1994) – Whether a magistrate

who was married to the chief-of-police and was void when one of his cops procured the warrant. Although any criminal matter in which the magistrate’s husband is involved cannot be brought

before her because of their spousal relationship, the rule cannot be extended per se to other members of the police force.

(i) Rule of necessity exception –Allows a judge who is otherwise disqualified to preside if there is no way for another judge to hear the matter.

b. Majority view – Most states allow only judges and magistrates to issue warrants. Magistrates cannot be compensated for each warrant issued. Connally v. Ga. (S.Ct. 1977).

c. Policy: Magistrates serve as intermediaries who are not part of the law enforcement apparatus.

(i) What about appearances?(2) Particularity in Warrants –

a. Places to be searched:(i) Urban setting : street address (and apt. no., if relevant) is

usually enough(ii) Rural setting : property may be described without an address.

b. Things to be seized:(i) As to what is taken, nothing is left to the discretion of the cop

executing the warrant. Marron v. U.S. (S.Ct. 1927).c. Policy – The probable cause and specificity requirements are

about refusal to allow general warrants.(i) Disincentives – If we require too much work for warrants, then

cops have an incentive to utilize alternative mechanisms to get searches.

(3) Execution of Warrants – a. Coleman v. State (Ark. ’92) – Police used a rote, computer-

generated form affidavit to get a warrant and performed a nighttime search. Warrant not erroneous because the affiant also set out a number of pertinent facts.

b. Policy: If we require cops simply to follow all the rules, it encourages “box-checking.” Where there are good reasons for a search, why not allow it?

(i) Consider ex ante v. ex post consequences, in light of remedies available.

c. Limits on nighttime searches: majority position – Jurisdictions split on whether to impose time limits, with some imposing no time limits and others presumptions of various degrees in favor of daytime searches.

(i) Some states specifically authorize night searches.(ii) Other states (30) have rules imposing some legal limit on

executing night searches, usually requiring special magistrate authorization.

d. Use of force in executing warrants and “no knock” entry – Most states, inc. fed., have statutes requiring cops to “knock and announce” before entering, and only after entry is refused may the cop use force to enter.

(i) Constitutional dimension: Failure to knock and announce may amount to an “unreasonable” search or seizure.

(ii) Exception: Where police feel endangered, they don’t have to knock.

e. Burden of proof – The gov’t bears the burden of proof for a warrantless search challenged at a suppression hearing. However, the bears the burden for a warranted search.

(i) Some states place the burden on the prosecution for all suppression mtns.

B. Anticipatory Warrants – Applications anticipating future events giving rise to probable cause. Goal: get the judicial intermediary involved at an earlier stage.

(1) State v. Craig Parent (Nev. ’94) – Anticipatory search warrants are not unreasonable and permissible under the 4th Amend to the U.S. Const. Under Garcia (C.A. 2), judges should use greater scrutiny:a. Require indep. evid. giving rise to probable cause that the

contraband will be located at the premises at the time of the arrest. (Efficacy)

b. Protect against premature execution by listing conditions governing execution that are explicit, clear, and narrowly drawn.

c. Scope of the search should be no narrower than the scope of the search allowed under the exigent circ’s exception, but should still be highly particularized.

(2) Policy questions:a. Anticipatory warrants v. Exigent Circumstances – Where a police

cop uses an anticipatory warrant, but the situation doesn’t match up can always move out of the warrant rules and seek out exigent circumstances.

b. Reinvigoration – Bolstering use of anticipatory warrants could reinvigorate 4th Amend.’s warrant req’t.

c. Increased no. of applications – Anticipatory warrants could increase the number of applications magistrates reviewmaybe lead to more searches.

C. Administrative Warrants(1) Camara v. Municipal Ct. of San Francisco (S.Ct. 1967) – Admin. searches

are significant intrusions upon 4th Amend. interests and such searches, when conducted without warrants lack the traditional safeguards the 4th Amend. guarantees the individual. To apply the test of reasonableness under the 4th Amend, the ct. must look at the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interest of the private citizen. If a valid public interest justifies the intrusion, then there is probable cause to issue a suitably restricted search warrant. Such an approach recognizes the competing public and private interests here at stake and, in so doing, best fulfills the historic purpose behind the constitutional right to be free from unreasonable gov’t invasions of privacy.a. Balancing methodology – Enables a ct. to decide what level of

justification the gov’t must present to support a valid search in different contexts.

b. Subsequent jurisprudence – Camera makes Terry v. Ohio and all subsequent departures from the warrant standard possible.

(2) Administrative warrants in highly regulated industries – Donovan v. Dewey (S.Ct. ’81) – If the target of a search is engaged in a ‘highly regulated industry,’ the S.Ct. and states have concluded that an admin. warrant is not necessary.a. Gov’t must show:

(i) Warrantless search is necessary; (ii) Field cop discretion is limited without a warrant.(iii) Inspection is limited in time, place, and scope.

V. Consent Searches, Apparent Consent [pp. 212–33]A. Components of a Voluntary Choice

(1) Voluntariness of consent: majority position: Most state cts. agree with Schneckloth that a “totality of the circumstances” determines whether a person consented to a search, and that is not necessary to inform the person of the right to refuse consent.a. But see, State v. Johnson, (NJ) holding that a party consenting to a

search must understand right to refuse consent.(2) Schneckloth v. Bustamonte (S.Ct. ’73) – Once consent is given by a non-

owner of a vehicle, evidence is used against a 3d person (issue unresolved). When the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the 4th & 14th Amends. require that it demonstrate that the consent was, in fact, voluntarily given, and not the result of duress or coercion, express or implied.a. Voluntariness is a question of fact to be determined from all the

circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account,

b. The prosecution is not required to demonstrate such knowledge as a prerequisite to establishing voluntary consent.

(3) Policy – How do you get at the subjective intent without opening the door for s to lie and say they “didn’t know” that they could refuse? Advising of the right to refuse is impracticable.a. Balancing: Gov’ts need for searches with assuring the absence of

coercion.b. Voluntariness is a real mess: sometimes the cases focus on the

individuals; sometimes they look at police actions.(4) Categorical Balancing Test: If the police don’t have probable cause,

then maybe they can use consent to get around it. If they do have probable cause, then voluntariness might help them get around the warrant requirement.

(5) Scope of consent: majority position – A consent search is valid only if the gov’t agent conducting the search remains within the bounds of the consent granted. a. Language limits: Cts determine the coverage of the agmt. by

reviewing the language that the cop and target of the search used.(6) Withdrawal of consent – A person who has consented to a search can

withdraw that consent (or restrict its scope) at any time before the completion of the search.a. Withdrawal must be unequivocal.b. Must be inconsistent with prior consent.

(7) Duration of consent – Most cts. conclude that an open-ended consent to search contains an implied time limitation: the search must be concluded as soon as it is reasonably possible to do so.

(8) Retroactive consent – Most cts. recognize that it is possible for the target of a search to consent retroactively to any portions of a search that occurred before the consent was given.

B. Third-Party Consent – A third party must have the authority (or at least the apparent authority) to consent to a search.

(1) Authority – Does not rest upon the law of property, but rather on the mutual use of the property by persons generally having joint access or control for most purposes.a. Assumption of risk – The target assumes the risk that another

person with access to the property will consent to a search.(2) Presence or absence of target –

a. Absent, nonconsenting – Cts. almost always uphold 3d party consents even when they contradict the explicit instructions of the absent search target.

b. Present target v. 3d party – Cts. split about whether 3d-party consent is effective when the target is present and objecting to the search or when the consenting party is not present.

(3) Unequal interests – Authority of a 3d party to consent to a search usually turns on the 3d party’s interest in the property. Cts. split when the consenting party has a lesser interest in the property than the target of the search. Some cts. require at least an equal interest before allowing a person to consent to search, esp. when the target is present.

(4) Apparent authority – Illinois v. Rodriguez – Majority of cts. hold that a search is constitutional as long as the cop has a reasonable belief that the 3d-party has authority to consent, even if she does not in fact.

C. Prospective consent and conditioning of govt’al benefits – Wyman v. James (S.Ct. 1971) – S.Ct. held that govt’s could condition the provision of social svcs on agreements to allow home access by aid workers, because these were not searches.

VI. Searches Incident to Arrest [pp. 235–51]A. Basic principle – When gov’t agents arrest a person, they may search the person ‘incident’ to the arrest, without any probable cause or reasonable suspicion to believe that the search will produce any weapon or anything else connected to the crime.

(1) State v. Hufnagle (Colo 1987) – As was being handcuffed, the Sheriff saw look at the end table. Concerned by the ’s glance, the sheriff flipped open a door inside the end table and saw a lidless box containing several baggies with cocaine. Chimel rule: It is reasonable for an arresting cop to search for and seize any evid. on the arrestee’s person, in order to prevent concealment or destruction. Cop may search the arrestee’s person and the area “within his immediate control” – the area within which he might gain possession of a weapon or destructible evidence.

(2) Search incident to arrest: majority position – Person may search the person of the arrestee, along with some area near the arrest, without any probable cause or warrant. Search may extend to the area within the “immediate control” of the arrestee, the area in which the arrestee could reach a weapon or destroy evidence.

(3) Handcuffs Immediate control – Some state cts. consider if the arrestee was handcuffed at the time of the search when determining the area of immediate control.

(4) Other factors:a. Whether there are multiple s;b. Whether there are confederates of the suspect nearby who might

destroy evidence;

c. Whether the cops are between the suspect and the area/object to be searched;

d. Whether the cops have control over the area/object to be searched;e. Post arrest movement by the arrestee (e.g. getting dressed).

B. Compared to Terry stops – Cts. allow searches of persons incident to arrest to be more intensive than Terry frisks.C. Protective sweeps – Chimel rejects searches of entire rooms or multiple rooms under the search incident to arrest doctrine, such searches may be allowed on other grounds:

(1) Discovering other persons posing a threat to cops conducting the arrest.a. Must have a reasonable suspicion that the “sweep” will reveal the

presence of such a person limited to places where a person might be found.

D. Subsequent searches – Until 1974, the S.Ct. required searches incident to arrest be “substantially contemporaneous with the arrest.” In 1974, the S.Ct. decided in U.S. v. Edwards that ’s clothing may be searched for paint chips 10 hrs after he was arrested.E. Searches prior to arrest – Cts. typically allow pre-arrest searches of areas too small to conceal the offender but large enough to conceal weapons, at least during ’s “hot pursuit.”

VII. Strip Searches [pp. 245–51]A. Strip search statutes: majority position – In most places, state statutes and police depts policies place special limits on strip searches and body cavity searches.B. Class definitions – Some statutory provisions contain substantive “standards,” describing subclasses of cases not eligible for such a search.C. Process of authorization – Some statutes focus on the process of authorizing such a search:

(1) Requiring judicial warrant or supervisor approval or(2) Written record of any decision to conduct such a search.

D. Mouth exception – Most body cavity statutes do not cover searches of the mouth.E. Consent to strip searches – Some statutes bar consenting to strip searches, others allow consent, while still others require special procedures for obtaining consent.

VIII. Houses, Workplace and Schools [pp. 251–74]– Katz v. United States – The Fourth Amendment protects people not places.A. The Outer Boundaries of Houses: Curtilage and Open-Fields

(1) State v. Dixson (Ore. ’88) – Ct. holds that one can have a reasonable expectation of privacy in property that does not belong to you. Departure from the S.Ct. rule to hold that, under Ore law, police must have a warrant to enter private property if the owner has taken enough measures to prevent entry onto the land by the public.

(2) Oliver v. U.S. (S.Ct. ’84) – There is no search when cops discover something in “open fields,” land beyond the boundaries of the home and its curtilage.

(3) Open fields: majority position – After the S.Ct. declared in Katz that the 4th Amend protected expectations of privacy rather than property interests, most lower courts assumed that the old per se rule allowing warrantless and suspicionless searches of open fields was no longer tenable. Oliver reaffirmed the open fields doctrine.

(4) State courts divided: 10 states have parted company with the federal rule, like Dixson, holding that police must have a warrant to enter private

property if the owner has taken enough measures to prevent entry onto the land by the public.

(5) Curtilage. Expectation of privacy is highest in the home and in the area immediately surrounding it.a. U.S. v. Dunn – Factors used to determine whether property is

curtilage:(i) Proximity of the area to the home;(ii) Whether the area is included within an enclosure surrounding

the home;(iii) Nature of the uses to which the area is put;(iv) Steps taken by the resident to protect the area from

observation.B. Workplaces – In addition to location of the search, workplace searches raise questions about the relationship between the government and a private employer who participates to some degree in a search.

(1) State v. Bonnell (Haw 1993) – Adopts two-part test from Harlan in Katz: 1) One must exhibit an actual, subjective expectation of privacy; 2) The expectation must be one that society would recognize as objectively reasonable. Held: Based on the ‘totality of circumstances’ present in the record, the s had an objectively reasonable privacy expectation that they would not be videotaped by gov’t agents in the employee break room.

(2) Privacy interests in the workplace: majority position – The crucial question is whether the workers have some control over access to the area.

(3) Private searches – A private employer can conduct any sort of search she chooses without engaging in a search under the federal constitution.a. Statutes or contracts may limit this power.

(4) Government as employer – If a gov’t agent represents a gov’t employer conducting a search of a gov’t workplace, neither a warrant nor probable cause is req’d if conducting either:a. A noninvestigatory work-related search (e.g. retrieving a file);b. An investigation of work-related misconduct.

(5) Policy question – Do courts assume that privacy interests attach to your properties in the work place, or do privacy interests attach to the workplace itself?a. If they attach to the workplace itself provides a broader scope of

privacy.C. Schools and Prisons – Cts. evaluate them more generously than homes or workplaces – evident suggestion.

(1) New Jersey v. TLO (S.Ct. 1985) – 4th Amend. applies to searches of students by school authorities, but less cause is req’d to justify such a search than is required of law enforcement authorities searching persons or effects outside the school premises. Balancing again.

(2) In re Gregory M (NY 1993) – Because appellant’s diminished expectation of privacy was so clearly outweighed by gov’tal interest in interdicting the infusion of weapons in schools, the “unusual” metallic thud heard when the book bag was flung was sufficient justification for the investigative touching of the outside of the bag. That limited intrusion was reasonable for constitutional purposes.

(3) Lesser protections in schools: majority position –Because of the special environment of the school, cts. concluded that neither warrants nor probable cause were req’d to justify a search by school officials, even if the evidence found during the search ultimately led to a criminal or juvenile conviction.

(4) Individualized suspicion, less than reasonable – “Evident suggestion” – A lower level of suspicion in the school context.

(5) Searches of school-owned areas – School authorities grant students access to lockers and other areas for storage of personal property; sometimes school administrators inform students (by signs or individual notice) that they might search the lockers, time to time.

(6) School officials as criminal law enforcers – TLO: search std. lower because school officials were not agents of the state. Where a search conducted by school officials was initiated by police officers, most courts have used probable cause std. People v Dilworth (Ill 1996).

(7) Scope of search – Search by school officials must still be “reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

IX. Inventory Searches, Cars, and Containers [pp. 292–319]A. Inventory Searches

(1) Administrative caretaking function – Inventory searches serve “admin. caretaking functions” of protecting against property damage claims and protecting people from dangerous items rather than enforcing criminal law.

(2) State v. Jackie Hundley – Ill. state police found cocaine in cigarette case of car driven off the road and abandoned. 3 Requirements for valid warrantless inventory search of a vehicle:a. Original impoundment of the vehicle must be lawful;b. Purpose of the inventory search must be to protect the owner’s

property and to protect the police from claims of lost, stolen, or vandalized property and to guard the police from danger;

c. The inventory search must be conducted in good faith pursuant to reasonable standardized police procedures and not as a pretext for an investigatory search.

(i) DISSENT – Standardized criterion must limit cop discretion as to (1) whether to search a seized vehicle and (2) scope of the inventory search, esp. re: treatment of closed containers.

(3) Inventory searches: majority position –S.Ct. has insisted that an investigatory search occur under the guidance of standardized regulations. Recurring litigation issues:a. Specificity of inventory rules and b. Amount of cop discretion.

(4) Impoundment decision – Some jurisdictions impose limits on the initial decision whether to impound a vehicle or leave it on the scene.

(5) Least intrusive means and investigatory intent – Illinois v. Lafayette (S.Ct. ’83) rejected the argument that the ‘least intrusive means’ is a requirement under the U.S. Const.a. Colo v. Bertine – S.Ct. said invetory could be challenged if they

were conducted “in bad faith or for the sole purpose of investigation.”

(6) Inventory searches in the field – Jurisdictions allowing inventory searches typically permit them to take place in the field or at the point where a vehicle is impounded.

(7) Inventory searches of personal belongings at the station – Most states impose fewer restrictions on inventory searches of personal belongings than on inventory searches of cars.

B. Cars – Most frequently litigated. Note: Distinguishing between a house/car (Calif. v. Carney).

(1) Passenger compartment of vehiclesa. State v. Pierce (N.J. ’94) – After arresting the driver of a van for

driving on a suspended license, police removed two passengers and searched the van interior where they found a gun in a latch and cocaine in a jacket pocket. Rejects Belton b/c it creates an incentive for police to make custodial arrests they would not otherwise make as a cover for a search otherwise prohibited by the 4th Amend. Rejects automatic Hufnagle-like extension to cars.

(i) Auto searches still allowed where there is probable cause under Carroll.

(ii) Where there is a threat to cop safety search allowed under MI v Long.

b. Belton, NY v. (S.Ct. ’81) – When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that auto and may examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within the reach of the arrestee so also will containers be within his reach.

C. The variety of grounds for searching cars.(1) Automobile exception to warrant req’t – Carroll v. U.S. – Power of

police to search cars and other conveyances without a warrant is the “automobile exception,” which obviates the need for a warrant, but not for probable cause.a. Police must have probable cause to believe the car contains

evidence or contraband.b. If they have probable cause, they may stop the car and conduct a

search.c. But , the search may be rejected if it exceeds the scope justified by

object which police, based on their finding of probable cause, expect to discover.

d. Majority rule – Most states follow this view and require no warrant.

(i) Minority rule: some 15 states still explicitly or implicitly require the gov’t to show exigent circumstances to support a warrantless search of a car.

(2) Application of Terry to cars – Mich. v. Long –a. Cop must have a proper basis for stopping the car;b. Cop may automatically order the driver and passengers to exit;c. If the cop has reasonable suspicion to believe there are weapons in

the car, she can search:(i) In the passenger compartment or(ii) In any areas which could contain accessible weapons.

(3) Search of automobile incident to arrest –a. Majority rule: Belton – Applies law of searches incident to arrest to

autos.b. Minority rule: About 20 states have required a case-by-case

analysis of the scope of searches of cars incident to arrest.(i) Cop must have reason to fear for his safety or reason to believe

evidence will be destroyed to search beyond that which is in the immediate control of the arrestee.

c. Some states: Categorically limited situations in which car searches are allowed incident to an arrest of the driver or a passenger.

d. Scope of car searches incident to arrest: trunks and hatchbacks – Almost all courts have held that hatchbacks that can be reached from the passenger compartment, however awkwardly, may be subject to search incident to arrest.

(i) Belton does not encompass the trunk, which may usually be justified by probable cause (under automobile exception, Carroll) or as inventory searches.

e. Searches incident to arrest for minor offenses – Pierce, NJ limited the powers of police to conduct searches of cars incident to arrest of the driver when the arrest was for a traffic violation. Divided states:

(i) Larger group: Rejects any rule limiting the power to conduct searches of cars incident to arrest on the basis of the severity of the offense.

f. Policy – If you put together the issues of racial profiling (Driving While Black and the pretext doctrine), if there an automatic search incident to arrest allowed (Belton), police will almost always be able to search a car.

(4) Inventory searches – Justification for search might arise when a vehicle is impounded and the government inventories the contents of the vehicle.

(5) Warrant preferences before or after seizure – Modern federal decisions generally allow car searches in most situations even when it is clear that a warrant could have been obtained.

(6) Viewing the exterior of cars – Under Katz, no 4th Amend. issue arises when police examine the outside of a car or take a picture of it.

D. Containers within cars – S.Ct. jurisprudence has been conflicted.(1) Calif. v. Acevedo (S.Ct. 1991) – Police could conduct a warrantless search

of a closed paper bag, even though they had probable cause to search only the bag and not the car as a whole.

(2) Ross, U.S. v. (S.Ct. ’82) – If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.

(3) Cardwell v. Lewis (S.Ct. ’74) – There is a lesser expectation of privacy in a motor vehicle because its function is transportation and seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.

(4) State v. Savva (Vt 1991) – Under the Ross-Acevedo rule, the distinction between containers and vehicles is collapsed by dispensing with the

privacy analysis. If the police develop probable cause that something they seek is located in an automobile, they can treat all parts of the automobile and all containers within – hidden and exposed locked and unlocked – the same. Held: Rejecting the Ross-Acevedo rule, any exception to the warrant req’t must be factually and narrowly tied to exigent circumstances and reasonable expectations of privacy. Mobility, per se, is not an exigent circumstance.

E. Searches of containers in cars: majority position – (1) Calif. v. Acevedo – Allows warrantless searches of containers within

automobiles as long as the police have probable cause to believe that either the car as a whole or the container itself contains contraband or evidence.

(2) Minority position - Very few states take the position of Savva, requiring some showing of exigency to conduct warrantless searches of containers.

§ 4. ARRESTS

I. Arrest v. Stop [pp. 325–40] – Always ask: Has an arrest occurred at all?A. Stop or arrest?

(1) In re M.E.B. – A Terry seizure involves a temporary detention, designed to last only until a preliminary investigation either generates probable cause or results in release. Terry permits the police to transport a suspect from the place of apprehension to another location for identification purposes. Handcuffs do not necessarily convert a stop into an arrest. Length of detention (12 to 17 mins) did not an arrest make.a. Corporate information doctrine – Test for sufficiency of probable

cause is not what any one particular cop knew, but what information was available to the law enforcement agency.

(2) Arrest v. stop: majority position – Fl. v. Royer (S.Ct. ’83): Arrest takes place when a reasonable person would believe she is under arrest; an investigative detention must be temporary and “last no longer than is necessary to effectuate the purpose of the stop.” a. Difference between an arrest (requiring probable cause) and an

investigative detention (requiring reasonable suspicion) turns on several different factors:

(i) Amount of time the detention lasts;(ii) Techniques used to restrain the suspect, e.g. handcuffs;(iii) Location of the suspect

Amount of distance covered during transportation of the suspect;

(iv) What cops say and intend about the purpose.(3) Location of detention – State rules often require that the person

detained remain in the vicinity of the initial stop; longer trips convert stops into arrests.a. Police station – Can a person be taken to a police station and not

be under arrest? Consider State v. Jones (W.Va. ’95) (arrest without probable cause occurred when police transported suspect to station without his consent, asked him to wait in reception area for one hour, total detention = 3hrs).

B. Arrest Warrants – Despite the oft-stated “preference” for warrants, most without.

(1) State v. Kiper (Wis ’95) – Because the police did not have probable cause to believe that Wanie was a resident of Kiper’s apartment, the cop needed a search warrant to enter the apartment to look for and execute Wanie’s arrest warrant. There were no exigent circ’s known to the cop at the time to justify the entry.

(2) Public arrests – U.S. v. Watson – A cop can make an arrest in a public place without a warrant.

(3) Warrants for arrests in a home: majority positiona. Suspect’s own home: Payton v. NY (S.Ct. ’80) – U.S. Const. only

requires an arrest warrant to justify entry into a suspect’s home to carry out the arrest, along with some “reason to believe” the suspect is within.

b. 3d-party home: Steagald – When a cop enters a 3d party’s home to arrest a suspect, he must have a search warrant, based on probable cause to believe the suspect (obj. of the search) is present in that location.

(4) Exigent Circumstances – Basic test to determine whether exigent circ’s exist is an objective one: whether a cop under the circ’s known to the cop at the time reasonably believes that delay in procuring a warrant would gravely endanger life or risk destruction of evidence or greatly enhance the likelihood of a suspect’s escape.a. 4 factors constituting exigent circ’s :(i) arrest made in “hot pursuit”(ii) threat to safety of a suspect or others;(iii) risk that evidence will be destroyed;(iv) likelihood that the suspect flee.

b. Minor traffic offenses – Welsh v Wisc (S.Ct. ’84) – Warrantless entry into ’s home violated 4th Amend because the police did not establish exigent circumstances. “Our hesitation in finding exigen[cy] ... is particularly appropriate when the underlying offense for which there is probable cause is relatively minor.”

II. Use of Force [pp. 364–81]A. Constitutional Limits

(1) Tenn v. Garner (S.Ct. ’85) – Where a suspect poses no immediate threat to the cop or others, the harm resulting from failing to apprehend him does not justify the use of deadly force.a. If the suspect threatens the cop with a weapon, or there is

probable cause to believe he has committed a crime involving infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape.

(i) Warning . Where feasible, some warning must be given.(2) Fleeing felon rule – Garner is a rule about fleeing felons a predicate

requirement is that the running suspect is a felon who presents a danger.a. O’CONNOR, J., Dissent – Police should not have to make split-second

decisions as to whether the fleeing is a felon.b. Balancing reappears : Fleeing ’s rights v. police safety(i) Constraint of cop discretion – S.Ct. is trying to avoid having

arbitrary killings. Clever reconstruction – Where there is no bright-line rule,

cop could construct a scenario in which he would be at risk justify deadly force.

B. Institutional Limits(1) Police dept. limits – Various police depts, incl. the FBI, have provided

detailed guidance on the use of force.a. Continuum – Most depts. establish a spectrum describing what

level of force can be used in response to what level of aggression by the suspect.

(2) High speed chases – Since the 1970s, about half the dept’s polices have been updated to place tighter controls on the occasions for engaging in a high-speed chase. These policies allow high speed chases more readily to chase suspects involved in more dangerous crimes. a. Balancing: Nature of crime with efforts used to apprehend.

(3) FBI Limits – Compared to Garner’s limits:a. FBI rules require imminent death or serious injury, which Garner

doesn’t require.b. FBI rules limit the use of deadly force to felonies involving

infliction or threatened infliction of serious physical injury or death.

(i) Policy – Since many felonies (e.g. drug offenses) do not involve the threat of serious physical injury, maybe this limitation is better than bright-line felony rule.

§ 5. REMEDIES

I. Exclusionary Rule—Origins and Policy [pp. 383–411]A. 1955

(1) Arguments favoring EXCLUSION –a. Status quo: Excluding illegally seized evidence return to status

quo ante.b. Deterrence: There must be some remedy, and this will deter bad

police conduct.c. Privacy interest: There must be a compelling state interest to

overcome the privacy interest protected under the U.S. Const.d. Integrity of the courts: (Weeks) Using evidence of this kind

undermines the ct’s integrity.e. Failure of tort: Tort actions do not work; how do we quantify

damages?(2) Arguments against exclusion –

a. Why status quo: This is evidence of a crime that committed; why be concerned with return to status quo ante?

b. Mitigation of privacy interests: ’s commission of crime mitigates his privacy interest.

c. Tort action could work: Tort remedy is not inherently flawed fix it!

d. Integrity of cts: Cts. are not viewed not viewed more favorably where the guilty go free.

B. 1961(1) Arguments favoring this particular remedy –

a. Uniformity – Having different protections in Alabama compared to Florida is unfair under the U.S. Const.

b. State proceedings – Both federal and state courts must protect these interests under the 4th Amend.

c. Guarantee of threshold – If individual interests are not protected, in addition to the protections in the state courts, there will be a rush to the bottom.

(2) Argument against this remedy –a. Federalism – Harlan, J. (Mapp) – States should be able to choose

their own form or remedying this constitutional violation.C. 2000 – Consider the changed relationship between political structure and police.

(1) Current controversies of 4th Amend. exclusion –a. Lessening of outrage – The exclusionary rule may lessen the

outrage we feel over illegal searches and seizures.(i) But – This remedy only protects the criminals, not law-abiding

citizens; elimination could provide further protection for all citizens.

b. Civil suits as remedies – § 1983 action: currently it is not considered effective.

(2) Administrative guidelinesa. Internal remedies:(i) Pensions - Could take away a violating cop’s benefits, fire him

etc.(ii) Tracking of cops – Target the “bad apple” cops.

b. Obstacles to administrative effectiveness:(i) Union Contracts – Contracts that cities have with police

departments really protect cop transgressions, e.g. require transgression expungement.

II. Exclusionary Rule—Limits [pp. 412–29] – To the extent you think the primary purpose of the exclusionary rule is simply to deter police conduct, the limits will play out differently.A. Evidence obtained in “Good faith” –

(1) Commonwealth v. Edmunds (Penn. ’91) – Rejected Leon’s good-faith exception. To adopt a good faith exception to the exclusionary rule would “virtually emasculate” those safeguards developed under the Pa. Const. Policy Considerations:a. Negates the “four corners” req’t for affidavits to justify issuance of

a warrant.b. Underlying premise of Leon still open to debate.c. Gates ’s “totality of circumstances” test for probable cause less

reason to adopt a good faith reason for the exclusionary rule.d. Leon creates the risk of allowing magistrates to rubber stamp

applications.e. Fosters magistrate-shopping.

(2) U.S. v. Leon (S.Ct. ’84) – The exclusionary rule operates as a “judicially created remedy” to safeguard 4th Amend. rights through its deterrent effect, rather than a personal const’l right of the aggrieved party. Therefore, the 4th Amend. does not mandate suppression of illegal seized evidence obtained pursuant to a constitutionally defective warrant, so long as the police cop acted in good faith reliance upon the warrant issued by a neutral and detached magistrate judge.

(3) Majority position – Approx. 25 states have adopted Leon while only 15 have rejected the good faith exception.

(4) Objective good faith and perjury – Conditions under which there is no obj. good faith:a. False info. Cop gives info. to magistrate that he knows or should

have known to be false;b. Incompetent judge . Where the magistrate wholly abandons his

judicial role;c. Grossly lacking affidavit . Affidavit is so lacking in indicia of

probable cause that it would be entirely unreasonable for a well-trained cop to believe probable cause existed; or

d. Facially deficient warrant . The warrant is so facially deficient that the cop could not reasonably believe it is valid.

(5) Nature of proceedings – The exclusionary rule does not operate in proceedings other than the criminal trial. Gov’t can use illegally obtained evidence in grand jury proceedings and in most administrative hearings. See, e.g., INS v. Lopez-Medoza.

(6) Impeachment – Gov’t can use improperly obtained evidence as the basis for impeaching a if she testifies at a criminal trial. See U.S. v. Havens.

(7) Consider Leon + Schneckloth – Allows ambiguities to be resolved in favor of the state. Since cops do not have to tell a citizen about his or her own rights, then they can lean on their own good faith to prevent exclusion of illegally seized evidence.

B. (Lack of) Causation – Even though causation is described as an exception to the “exclusionary rule,” it is more appropriate to ask: does the exclusionary rule actually apply? What is goal of exclusion?

(1) “Fruits of the Poisonous Tree” – The exclusionary rule applies not only to evidence obtained during an improper search, but also to evidence subsequently developed from leads obtained during the improper search or seizure.

(2) 3 Exceptions:a. Independent sourceb. Attenuationc. Inevitable discovery

(3) Independent Source Rule – If police locate evidence through both proper and improper means, the evidence is not excluded.a. Tort language – The illegal conduct was not the but-for cause of

the discovery.(4) Attenuation – Like proximate cause. Where there are superceding

factors before the actual discovery, the exclusionary rule does not apply.a. Four factors under Ceccollini :(i) Was evidence derived from witness testimony or another kind

of evidence? Ct. more likely to allow witness testimony than physical

evidence.(ii) Did the illegally discovered witness cooperate?

If the witness freely agrees to testify, ct. more likely to find attenuation and admit the evidence.

(iii) What is the cost of blocking the evidence? Always a problem with the exclusionary rule.

(iv) Would suppression deter police conduct? Most important factor.

(5) Inevitable discovery – Counterfactual inquiry that may overcome all kinds of conduct. Every state except Texas and Washington recognizes this exception.a. Rule: The gov’t must prove, by a preponderance of the evidence,

the underlying facts necessary to conclude discovery was inevitable.

b. How to show inevitable discovery?(i) Look to training manuals and evidence of regular police

practices.(ii) Demonstrate that the department complies with them 85% of

the time.C. Standing – Applies when the government improperly intrudes on a reasonably expectation of privacy of one person but finds evidence implicating a second person in a crime.

(1) Policy – The standing doctrine is not an exception to the exclusionary rule, but rather a way to limit the broad expectation of privacy protected by Katz.

(2) Standing: majority position – Rakas v. Ill (S.Ct. ’78) – “Legitimate expectation of privacy” test. Assessment of whether the has demonstrated a privacy interest sufficient to come within the protection of the 4th Amend. The privacy interest must be demonstrated through a source outside the 4th Amend, either by reference to concepts of real or personal property law or to understandings recognized by society.a. Minn. v. Olson (S.Ct. ’90) – S.Ct. recognized standing for an

overnight guest at an apartment.b. Note: Rakas is not conceptually consistent with the substantive

rule of Katz.c. Previous rule: Under Katz, there is potentially a broad way of

defining standing—anyone with a ‘reasonable expectation of privacy.’ Under Rakas, a boundary is placed on the outside to cabin the scope of Katz as far as the remedy, exclusion, is concerned.

(3) Minority position – Jones v. U.S. (S.Ct. ’60) – “Legitimately on the premises” test. Usually amounting to a “proprietary, possessory, or participatory interest” in the premises. See Wood (Vt. ’87).

§ 6. WIRETAPS AND TECHNOLOGY

I. Wiretaps and Technology [pp. 459–79]A. Framework for assessing technology

(1) Sense-enhancing versus sense-facilitating technologya. Specificity – What kind of activity does the technology reveal?

Does it reveal only criminal activity, e.g. dog sniffs, or does it reveal both legal and illegal, e.g. x-ray?

b. Duration – How long is the technology in use? Longer duration warrant.

(i) Beepers might present a difficulty with this. Most state supreme court decisions have held that placing

beepers in cars or commercial objects are searches.c. Targeting – How many innocent people will be caught up by the

technology.(2) Consider other distinctions

a. Automobile versus home – Since there is a diminished expectation of privacy in the home (Carroll), devices tracking auto movement less problematic than devices tracking behavior within the home.

b. Statutory authorization – Some states have enacted beeper statutes, e.g. Penn (authorizing use of mobile tracking device only after applying for a judicial order and demonstrating reasonable suspicion).

(3) Consider the balance: Where a sense-enhancing device constitutes a search, the court must ask further questions:a. Level of justification – What level must the gov’t have to support a

search?b. Reasonability – Is a search reasonable given certain facts?c. What branch of gov’t ought to make this decision?

B. Wiretaps(1) Olmstead v U.S. (S.Ct. ’28) – Language of the 4th Amend. cannot be

extended or expanded to include telephone wires reaching the whole world from the ’s house or office. The intervening wires are not part of his house or office. Congress invited to regulate wiretapping.a. BRANDEIS, J., dissent – Whenever a telephone line is tapped, the

privacy of both persons is invaded. Const. must be an adaptive document.

(2) Katz (3) Legislative response –

a. Fed. Comm. Act of 1934 – Congress focused on the admissibility of the evidence, not its collection federal agents continued to use wiretaps in investigations and gave to state courts.

b. Title III of Omnibus Crime Control and Safe Streets Act (1968)– Serves as the model for most states and many non-U.S. jurisdictions.

(i) Yes: searches Declares wiretaps are searches. (based on Katz)

(ii) Little wiggle room. Little room left for the varieties of exigent circumstances on which the gov’t can rely to conduct warrantless searches.

(iii) One party consent. Most statutes do not require warrants when the conversation is recorded with the consent of one party.

(iv) Types of communication . Statutes do not apply to all types of communication, though the coverage has expanded well-beyond traditional taps.

(v) Jurisdiction . Statutes may not apply to recording of conversations out of the governing jurisdiction or in another country.

§ 7. INTERROGATIONS/MIRANDA

I. Interrogations and Voluntariness [pp. 549–72]A. 2 Bodies of Law: 1. Voluntariness; 2. Miranda – Voluntariness is much more messy, but it must be understood to understand Miranda.B. The Third Degree

(1) Brown v. Miss. (S.Ct. ’36) – Although a state is free to regulate the procedure of its courts, it cannot do so by “offending some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

(2) Reasons for excluding tortured confessions:a. Unreliable – Torture someone long enough, and he’ll say anything.b. Inconsistent with accusatorial system – Trial by policec. Reprehensible police conduct – Police conduct is offensive and

must be discouraged.(3) Modern coercion tactics

a. Physical deprivations – Most modern coercion tactics use psychological manipulation:

(i) Deprivation of food or sleep.(ii) Extended isolation from family, friends, and legal counsel.(iii) Length of interrogation – Shown to be directly correlated to

success.C. Delay of presenting suspect to a judicial officer:

(1) McNabb-Mallory Rule – S.Ct. declared that any violation of the time rules contained in the Fed. R. Crim. P. requires suppression of confessions obtained as a result of the delay.

(2) Majority rule: Most states have rejected the McNabb-Mallory Rule and have declared, instead, that violation of the timeliness req’t does not lead to automatic suppression but one of the factors considered in the “totality of circumstances” indicating involuntary confession.

D. Vulnerability of suspect: Suspects especially young, or suffering from illnesses, are more likely to succumb to involuntarily confessing than healthy, mature, educated suspects.E. Threats

(1) Strain – Court must assess whether the threat, e.g. confess or face the death penalty, caused the suspect to confess under the totality of circumstances.

(2) Alschuler thesis – Focus solely on whether the tactics used by the police are offensive, not on the confessor’s state of mind.

a. But what defines offensiveness?F. Police Lies

(1) Kelekolio (Haw. ’93) – Intrinsic versus extrinsic falsehood test – a. Where the falsehood is intrinsic to the facts of the alleged offense

in question it is treated as one of the totality of circumstances surrounding the confession.

b. Where the falsehood is extrinsic to the facts alleged that are of the type reasonably likely to procure and untrue statement or to influence an accused to confess regardless of guilt considered coercive per se.

c. Examples of Intrinsic lies :(i) Placement of ’s vehicle at the scene.(ii) Physical evidence linked to the victim found in ’s car.(iii) Discovery of the murder weapon.(iv) Claim that the victim is still alive.(v) Presence of the ’s fingerprints on the getaway car or at crime

scene.(vi) Positive identification of the by reliable witnesses.(vii) Discovery of nonexistent witnesses.

d. Examples of extrinsic lies :(i) Assurances of divine salvation;(ii) Promises of mental health treatment;(iii) Assurances of treatment in a “nice” hospital;(iv) Promises of more favorable treatment;(v) Misrepresentations of legal principles;(vi) Suggestion that the would have the burden of convincing the

judge/jury that he was “perfectly innocent.”(2) Policy question – Whether extrinsic lies are more likely to create a false

confession than intrinsic lies depends on why you think people confess falsely:a. Avoiding worse consequences – If you believe that people confess

falsely to avoid worse consequences, then extrinsic lies are more coercive.

b. Confusion or deterrence to authority – If you believe that people confess because of confusion then intrinsic lies are more coercive.

G. Policy question – (1) Why do we exclude involuntary confessions?

a. Unreliability – Bad evidence(i) But – Corroboration is possible. If the only reason for exclusion

is unreliability, then what would we do with a confession we know to be truthful and reliable?

b. Fairness of police methods deterrence(i) If we just don’t like the conduct, then excluding evidence

attained that way will deter police from engaging in this behavior. Spano v. NY – Police must obey the law while enforcing it.

(ii) But – What of methods that are reliable and not obviously unfair, e.g. truth serum or hypnosis.

c. Accusatorial system of criminal justice rather than inquisitorial system: fair trial.

(i) Consider Ashcroft v. Tenn – subjected to 36 hrs. straight of questioning. Held: Unbroken 36 hrs. not reconcilable with possession of mental freedom.

(2) Divergent rationales – The three reasons for excluding involuntary confessions may conflict with one another.a. If voluntariness is governed by these principles, depending on

which principle is paramount, different answers emerge.b. Miranda may help answer some of these questions, but it

addresses a fundamentally different question.II. Miranda and Custody [pp. 570–600]

A. Pre-Miranda –(1) Messiah (S.Ct. ’64) – indicted on federal drug charges; he had retained

a lawyer and confessed. A co-, wired, and got Messiah to make damaging statements. Held: Statements were not coerced, but the gov’t had interfered with Messiah’s right to counsel. Once the process started and had counsel, police were not entitled to engage in further police action under the 6th Amend.

(2) Escobedo (S.Ct. ’64) – Police said, “you might as well admit it; we know you did it.” refused and asked for his lawyer. Police took to station house and kept him from his lawyer. Initially, denied firing shots, but then implicated himself and was convicted. Held: Under the 6th Amend., ct. suggested that all interrogations of persons in custody had to take place in the presence of counsel, but could be viewed as narrowly limited only to situations where had requested counsel.

B. Miranda – (1) Basic premise: The prosecution may not use statements, exculpatory or

inculpatory, stemming from custodial interrogation of the , unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.

(2) 4 Components :a. Right to remain silent.b. Right to counsel.c. Any statement made can be used against .d. If you cannot hire a lawyer, one will be provided.

(3) Voluntariness versus compulsion doctrines – The voluntariness doctrine, i.e. due process analysis, did not give suspects the right to remain silent in a custodial setting.a. Compulsion focuses on what the state is doing.b. Voluntariness focuses on what the person is reacting to.

(4) 4 Concerns for the decision :a. Psychological tactics – Ct. concerned with the tactics the police

use that exact a heavy toll on individual liberty.(i) Ct. skeptical that people want to talk against their own self-

interest.b. Right against self-incrimination only works if you’re silent –

Remaining silent is inconsistent with all the police tactics.c. Confessions are ok, but only if the product of free choice –

Gov’t must respect the dignity and integrity of its citizens;

(i) Counsel’s presence at interrogation enhances the integrity of the fact-finding process in the court.

d. Leveling the playing field – Compulsion doctrine tries to eradicate as many compelling factors as possible.

(5) Questioning inherently compulsory? If all questioning is inherently coercive, how can the court accept a negative answer to the question of waiver?a. Invocation – If a suspect invokes his right to a lawyer, all

questioning must stop.b. WHITE, J.: If you really think questioning is compelling, the only

way to get around it is to require lawyers.(i) Freedom for innocents – Not requiring a lawyer allows innocent

people to speak to police more freely.c. Balancing – Rights of individuals must be weighed against the

mechanisms necessary for crime-control.(6) Prophylactic rule – Ct. has held that Miranda rights are “prophylactic”

rules that are not, strictly speaking, required by the 5th Amend, but necessary to prevent violations of the self-incrimination privilege.

(7) Wigmore’s defense of interrogations –a. Innocent people helped because they tell their story and go free;b. Guilty people almost always ready and desire to confess as soon as

detected and arrested;(i) Nervous pressure of guilt.(ii) Human nature to want to confess.

c. Professional criminal groups – Without getting one gang member to “peach,” and give clues to the police, there is no hope of getting at the entire group.

C. Custody – 2 Req’ts before Mirand izing needed : 1) suspect must be in custody; 2) cops must be conducting an interrogation.

(1) Objective test – Berkemer v. McCarty (S.Ct. ’84): Would a reasonable person in the situation have thought he was in custody?a. Factors used to make this determination :(i) Language used to summon the individual;(ii) Purpose;(iii) Place and Manner of the interrogation;

Number of cops present; ’s conduct after the interrogation;

(iv) Extent to which the is confronted with evidence of his guilt;(v) Whether the is free to leave the place of questioning;(vi) Age/tenderness of the questionee.

(2) Traffic stop not “custody” – Under Berkemer, S.Ct. decided that a traffic stop does not amount to “custody” under Miranda.

(3) Virtually all arrests include custody – Where a suspect has been arrested, he is in “custody” for the purposes of Miranda. However, not all Terry stops constitute custody for the purposes of Miranda. Cf. Berkemer. Consider M.E.B. where a suspect stopped under Terry but not arrested; ct. could find that should have been Mirand ized .

III. Interrogations and Warnings [pp. 600–24]A. Interrogation –

(1) Innis, R.I. v. (S.Ct. ’80) – The term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the

part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.a. Focus on: Perceptions of suspect, not intent of the police.

(2) Interrogation by known gov’t agents: majority position – Virtually all jurisdictions follow Innis’ definition of “interrogation”:a. Words or actions that police “should know are reasonably likely to

elicit an incriminating response from the suspect.”b. Policy question – What makes Innis complicated is that the

conduct has to illicit an incriminating response from the suspect.(i) How does a police cop know that what comes out of the ’s

mouth will incriminate him?(3) Interrogation by unknown gov’t agent: majority position – Ill v.

Perkins (S.Ct. ’90) – No Miranda warnings are necessary when police placed an undercover agent in the same cellblock with murder suspect detained on other charges, and during discussion of possible escape, agent asked if he had ever “done” anybody.

(4) Threat to public safety exception – NY v. Quarles – After cop finds suspect and cuffs him, he asks where the gun is without Mirand izing the suspect. Held: Even though cop conducted a custodial interrogation without Mirand izing suspect, the confession was not obtained contrary to the Const., because of questioning was necessary to prevent future crimes or accidents involving the missing gun.a. No way to reconcile this with Innis.

(5) Purpose of custody immaterial – Mathis v. U.S. (S.Ct. ’68) – When a is being detained on the basis of one violation but questioned about a different one, interrogators must still give Miranda warning.

(6) Policy analysis – Miranda is not about coercion of a confession as much as it is about limiting the inherently compulsive environment of custodial interrogation.a. The test avoids physical coercion and direct questioning, but

insofar as the test does not regulate any particular tactic, it creates an incentive for police to take advantage of the ignorance or stupidity of suspects.

B. Form of Warning – (1) Advising suspect of awaiting attorney.

a. State v. Reed (NJ ’93) – Where police know that an attorney has been retained for a suspect and is asking for contact with his client, police must advise the suspect about the available attorney. (Majority rule)

b. Moran v. Burbine (S.Ct. ’86) – There is no constitutional duty to advise a that a 3d party has summoned an attorney to advise him. In the absence of a request by the himself, an attorney’s presence at the police station does not affect the right of the police to interrogate him. (Minority rule)

c. Informing the suspect about an available retained atty: majority position – Most state supreme courts have disagreed with Moran.

(2) “For or against’ warning – Some cops tell suspects that anything they say during interrogation may be used “for or against” the suspect. Some cts. have allowed this, when accompanied by other against stmts., while

others have held it to be in error to give such an instruction (might mislead subject).

(3) Changing the subject. Colo. v. Spring (S.Ct. ’87) – There is no constitutional req’t that the police warn a suspect about the subject matter of the interrogation. If the interrogator begins talking about one crime but then inquires about another, there is no need to highlight this fact for the suspect.

(4) Translation of Miranda warnings – If a suspect does not speak English, he or she must receive the warnings in his or her language.

C. Capacity to waive – Some suspects cannot make a knowing and intelligent decision.

(1) Capacity to waive under Miranda: majority position – Highly case-specific. Courts often look to variety of factors in response to claims of incapacity:a. Prior experience with criminal justice system;b. ’s intelligence and education;c. Mental illness;d. Vocabulary and literacy;e. State of intoxication;f. Emotional state;g. Age;h. Threats, promises, lies by police highly influential.

(2) Colo. v. Connelly (S.Ct. ’86) – Suspect suffering from a psychosis that interfered with his ability to make rational choices. Confession upheld because police could not reasonably have known about the condition and did not engage in any overreaching conduct during the interrogation.

(3) Juveniles –Age can be a factor in the totality of circumstances.a. State rules – Some states require that a juvenile consult with an

“interested adult” before she can waive Miranda rights.IV. Invocation and Waiver [pp. 624–45]

A. Problem generally: 2 Concerns: (1) How clearly must a suspect express the wish either to assert or to waive

Miranda rights?a. Empirical evidence : Suspects rarely use language leaving no

doubt about their invocation or waive of the right to counsel or silence.

(2) What is the effect of invoking Miranda rights on the behavior of the police and prosecutors?a. Which right? (i) When the suspect invokes right to counsel all questioning

must stop, and only the suspect can begin the conversation again.

(ii) When the suspect invokes right to silence police have more leeway to obtain a waiver at a later time.

B. Clarity – There is no verbal formula to assert or waive Miranda rights.(1) Ambiguous assertion of Miranda rights: 4 positions –

a. Smallest group – Any statement that might be interpreted as an assertion of the right to silence or right to counsel ends the interrogation.

b. Largest group – When a suspect makes an ambiguous statement that could be an assertion of rights, interrogator must stop

questioning and obtain clarification about the meaning of the statement.

c. Federal rule – Davis v. U.S.: An accused’s statement must be unambiguous and unequivocal request for counsel; otherwise, the cops have no obligation to stop questioning.

(i) Policy question: Avoidance of subsequent judicial second-guessing of what the police perceived of the accused’s statement re: counsel.

d. Minnesota rule – Distinction between right to counsel and right to silence:

(i) Where ambiguity is re: right to counsel police must obtain clarification.

(ii) Where ambiguity is re: right to silence no clarification necessary.

(2) Ambiguous waiver of Miranda rights: majority positiona. N.C. v. Butler (S.Ct. ’79) – An explicit statement of waiver is not

invariably necessary to support a finding that the waived the right to remain silent or the right to counsel. Virtually all state courts agree that a suspect can implicitly waive Miranda rights through conduct or ambiguous statements.

(3) Standard of proof for waiver – Preponderance of the evidencea. Constitution requires that the gov’t show that the confession was

voluntary by a preponderance of the evidence.b. The same standard of proof applies when the gov’t must prove the

knowing and intelligent waiver of Miranda rights.C. Effect of Assertion

(1) Right to silence:a. Mosley v. Mich – S.Ct. upheld a confession despite the fact that the

suspect had earlier invoked his right to silence. The police had “scrupulously honored” the ’s initial invocation of the privilege, even though they had initiated a later conversation about the criminal investigation that led to his waiver and confession.

b. State v. Stanley (Conn ’92) – Police did scrupulously honor suspect’s refusal to waive Miranda rights because they did not persist in repeated efforts to wear down the ’s resistance and make him change his mind.

(2) Right to counsel:a. Edwards v. AZ (S.Ct. ’81) – A person who invokes the right to

counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.

b. State v. Oliver (Ill ’95) – After invoking his right to counsel, the did not waive the right when he asked “what happened” immediately after the conclusion of the lineup. Ore v. Bradshaw: 2 Prong test:

Did the , rather than the police, initiate the conversation in a manner evincing a willingness and desire for a generalized discussion about the investigation?

If yes, then did the accused, by his or her initiation, coupled with the totality of the circumstances, knowingly and intelligently waive his right?

V. Impact [pp. 652–61]A. Cures and remedies –Admissibility of statements after an improper, “tainted” interrogation.

(1) State v. Hosie van Smith (Tenn ’92) – If an initial confession is invalid (due to lack of Miranda warnings), any subsequent confession is presumed to be inadmissible as “fruits of a poisonous tree.” This presumption may be rebutted if a ct determines that initial illegal confession did not prevent from:a. Making a “free and informed choice to waive his right against self-

incrimination” andb. Voluntarily confessing.c. Factors to take into account (Totality of circumstances)(i) Time between two confessions;(ii) Atmosphere of ‘coerciveness” at the time of the confessions;(iii) Presence of attorney;(iv) Psychological effects of having already confessed;(v) ’s comprehension of Miranda rights, etc.

(2) Elstad (S.Ct. ’85) – The failure to administer Miranda warnings creates a presumption of compulsion. The presumption attached to an unwarned confession does not also apply to a subsequent confession obtained after administering Miranda warnings. Absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect made an unwarned admission does not warrant a presumption of compulsion (in the subsequent statement?)

(3) Out-of-ct. statements obtained after earlier Miranda violations: majority position. An unwarranted interrogation will not necessarily require a later court to exclude all derived evidence.a. Elstad is the majority position;b. Van Smith is the minority position.

(4) Use for impeachment at trial – Even though a Miranda-tainted statement from the prosecution’s case-in-chief is excluded, the prosecution may use such statements to impeach the ’s testimony at trial.

(5) Tainted leads to witnesses and physical evidence –a. Mich. v. Tucker (S.Ct. ’74) – S.Ct. allowed use of prosecution

witnesses whose names were obtained through an improper interrogation. To exclude the fruit of Miranda violations that do not create an involuntary (thus unconstitutional) confession would be too costly.

b. State rule – Most states exclude any fruits of impermissibly obtained confessions, unless one of the traditional fruits of the poisonous tree exception applies – i.e. independent source, inevitable discovery, or attenuation.

§ 8. IDENTIFICATIONS

I. Identifications [pp. 685–708]A. Risks of Mistaken Identification –

(1) Eyewitness testimony – Factors influencing whether an eyewitness will supply reliable testimony. Two types: Event factors; Witness factors.a. Event Factors (i) Time – How long did the witness observe? How much time has

passed since the event?(ii) Type of detail, duration – People have difficulty estimating

length of an event, esp. if stressful.(iii) Stress – If the event was stressful, witness may have difficulty

recalling details.b. Witness Factors (i) Yerkes-Dodson Law – During a very stressful incident, people

are able to do basic things but not complex tasks. Memory function decreases.

(ii) Weapon focus – Witnesses tend to focus on weapons, not faces.(iii) Retaining info. in memory (iv) Forgetting curve – We forget very rapidly immediately after an

event and then our memory stabilizes.(v) Post-event info. – Info. obtained subsequent to event causes

forgetting and changes details and understandings.(vi) Guessing – Guessing is bad because if witnesses fill their

memory gaps with guesses, over time, they do not distinguish them from real memories.

(vii) Own-race bias – People more easily remember details and recognize people of their own race.

(viii) Witness confidence – When a witness is confident of her ID, there is little empirical correlation with an actually correct ID.

c. Factors affecting witness accuracy in identification :(i) Context reinstatement – witnesses have easier time IDing if in

the field;(ii) Exposure time – the more time exposed to an incident more

likely to accurately recall.(iii) Distinctiveness of target – More distinct looking more likely

to recall(iv) Age of witness – Older & younger witnesses less reliable(v) Cross-racial ID – More imprecise.(vi) Amount of time lapsed

B. Legal Limits on Identifications(1) Constitutional overlay – Legal limits on identification process stem

from const’l concerns:a. Right to counsel (6th amend) at the time of the line-up and b. Due process concerns over how the line-up is conducted.(i) Totality of circ’s test: Stovall – Prohibition of line-up procedures

that are conducive to irreparable identification.(ii) Has virtually no impact on the analysis. See Ramirez factors

used to identify the reliability of identifications.(2) In-person Identification Procedures – Presence of counsel under

6th Amend.a. U.S. v. Wade (S.Ct. ’67) – Suspect at line-up without counsel

present; held: right to counsel at line-up. The presence of counsel at such a critical confrontations as at the trial itself, operates to

assure that the accused’s interests will be protected consistently with our adversarial theory of criminal prosecution.

b. Hawkins – Kirby rule. Once a suspect in New York invokes his 5th Amend. right to counsel, it cannot be waived. Therefore it is odd that Hawkins followed Kirby because they said defense counsel did not do much at the identifications.

(3) Availability of counsel during in-person identifications: majority position – Most states follow Kirby and do not require defense counsel at lineups prior to the start of the adversarial proceedings, even if the suspect already has counsel. The Wade-Gilbert Rule requires presence of counsel only after initiation of adversary judicial criminal proceedings.a. Minority position – Wade-Gilbert Rule: Some states still require

presence of counsel at the post-arrest identification proceedings.(4) Identifications compelled by defense – Blank lineups in which a first

round is conducted without any suspect and then a second round includes the suspect. If the witness does not identify anyone in the first round without the suspect, her credibility is enhanced.

(5) Exclusion remedy: If police fail to allow counsel to be present during identification when such presence is constitutionally req’d, the judge must exclude at trial any evid. of the pretrial identification. In addition, any identification of the by the witness at trial is excludable unless the prosecution can demonstrate the witness’s ability to recognize the at trial as an “independent source.”a. Impact – In those states where counsel is provided in the post-

arrest identification (under Wade-Gilbert), the identifications are likely to be pushed back.