CRIMINAL PROCEDURE I OUTLINEProf. Boals – Fall 2010

I. Amendmentsa. Fourth Amendment – The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

b. Fifth Amendment – No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . . .

c. Sixth Amendment – In all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defence.

II. Probable Causea. Draper “Tan Bag” case

i. Facts – PO had detailed info from reliable informant (D @ train station w/ tan bag), PO acted on that info and the info was corroborated on the scene when D’s actions and descriptions matched the info provided (informant gave predictive facts that were corroborated).

ii. Probable Cause exists where the facts and circumstances within the arresting officer’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. (quoting Carroll).

iii. Word of informant is insufficient… information must be reliable… reliability goes up as you confirm the facts given by the informant. As you check off details of informant’s story, the unconfirmed details become more probably true… leads to PC (pile of stuff adding up to PC)

b. Bobo (Florez) (note case)i. Reliability and credibility of dog sniffs court says 71% accuracy is

enough for PC – “more likely than not” – 51% is not ok though, no exact percentage given. Drug dog owners must keep detailed records of dog reliability for the alerts to be used to get to PC

c. Aguilar i. Word of magistrate always taken over word of cops, reviewing courts very

deferential to magistrates.ii. However, magistrate must perform his neutral and detached function and

not serve merely as a rubber stamp for the police (magistrate must be independent and detached)

iii. Magistrate must be informed of the underlying circumstances from which the officer concluded that the informant was “credible” or his information “reliable” in order to reach the PC needed to issue a warrant

d. Robinson (note case)i. Cop saying informant was reliable in past is not enough to = reliability in

instant case. Mere statement that informant is credible doesn’t make him

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credible, magistrate has to make an independent determination, can’t just take word of officer.

e. Moore (note case)i. Sense of smell alone can lead to PC – cop smelling burnt MJ gives him PC

that D was smoking itf. Reed (note case)

i. Arrest satisfies 4A is there was PC to arrest D for the precise offense cited, or for a closely related charge, so long as the related charge can reasonably be based on the same set of facts that gave rise to the arrest

g. Gates i. Facts – husband drives down to FL, wife flies there, drive back to IL

together. PO get anonymous letter that Ds are transporting drugsii. Standing alone, an anonymous tip does not provide a magistrate with a

basis for finding PC… something more is required, determined by a totality of the circumstances test.

iii. Probable cause is a fluid concept – turns on assessment of probabilities in a factual context (lower standard than needed to prove guilt)

iv. Warrant is valid so long as the magistrate, in considering the TOC, had a substantial basis for concluding that a search would uncover evidence of wrongdoing

v. Corroboration of informant info done thru independent sources is enough to get you to PC

vi. Holding – PC here b/c PO verified contents of letter by independent police work, magistrate thus had a substantial basis

h. Dunlap (PA Supreme Court)i. In high crime area, PO saw D and another exchange $ and “something

else” but didn’t see what it was. PO have PC to arrest? No.ii. Police experience, without more, is not a factor in the TOC test (can’t get

PC simply b/c PO on force for x # of years). BUT, experience can be a factor if PO shows a nexus b/w his experience and the search/arrest/seizure (view Ds actions through lens of PO experience. Ex. – if PO knows drugs are commonly transported in white sacks, a white sack becomes a factor leading to PC).

i. Funches (note case)i. Mere existence of innocent explanations does not necessarily negate PC

j. Factors leading to PC (standard is TOC)i. Reliability of info

ii. Reliability of informantiii. Informant had no reason to lie (Hill – man arrested in street, tells cops

about other seller (D) wearing certain clothes in a certain apt. upstairs PC for D)

iv. Info corroborated by independent police work (predictive facts) (Draper, Gates)

v. Police training/experience (lens)vi. Time

vii. Location

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viii. Frequency of Ds actionsix. Movements and manners of Dx. Flight alone is insufficient to support PC

III. Exclusionary Rulea. ER – the exclusion of illegally seized evidence from a criminal trialb. Mapp v. Ohio

i. Facts – cops come to Ds house, tell her they have a warrant (lie), handcuff D, won’t let Ds lawyer come in, search Ds house, find + seize porn books

ii. 4A bars use of evidence secured through an illegal search and seizure (Weeks)

iii. Applies 4A to states through DPC of 14Aiv. Purpose of the exclusionary rule is to deter 4A violations by removing the

incentive to disregard itv. Holding – porn can’t be used against D b/c it was seized in violation of 4A

c. Calandra (note case)i. Purpose of ER is not to redress injury to 4A victim, but to deter unlawful

police conduct (and thus to effectuate guarantee of 4A). Prevent, not repaird. McMurty (NY Tr. Ct.) – “Dropsy Testimony”

i. Problem of PO saying D dropped evidence – issue is whether police say D dropped it when really PO illegally searched and its PO’s word against D’s

ii. 4 step test where there is dropsy testimony1. Dropsy testimony should be scrutinized w/ special caution2. If PO’s testimony seems inherently unreal, it is rejected3. Slightest contradiction of PO’s testimony or corroboration of D’s

testimony warrants suppression of “dropped” evidence4. Determine whether D’s burden of proof has been carried – where

evidence is balanced, find in favor of P.a. Remember burden is on D to have evidence suppressed…

D must prove 4A violatede. Leon

i. Facts – informant gives info to PO, PO get a warrant, search Ds house(s). Warrant later invalidated for lack of PC. D moves to suppress evidence… should evidence be suppressed b/c warrant later held invalid?

ii. Object of ER is deterrence… little deterrence exists when PO act in GF reliance on a warrant. benefits of suppression in that instance (deterrence) do not outweigh societal cost of suppressing evidence against criminal

1. Note – magistrate not deterred by ER… no reason to care if evidence ever used in trial, has no stake in the case, no reason to think that magistrates would violate 4A (like POs would)

iii. Good Faith Exception (GFE) created – where an officer reasonably relying on a warrant issued by a detached and neutral magistrate seizes reliable physical evidence, the evidence is admissible in P’s case-in-chief

iv. For there to be a deterrent effect, it must actually alter PO behavior. Thus, evidence obtained from a warranted search is only suppressed where the

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law enforcement officer may properly be charged w/ knowing that the search was unconstitutional under 4A

v. But officer’s reliance on magistrate’s PC determination must be objectively reasonable.

1. Where PO knowingly gives false info to magistrate (or recklessly disregards the truth), and a warrant is issued, PO cannot then in good faith seize evidence. Suppress in that instance b/c PO had no objective reason to rely on the warrant.

2. Also, PO cannot establish GF reliance based on an affidavit “so lacking in indicia of PC as to render official belief in its existence entirely unreasonable.” (what a reasonably well-trained officer would believe)

3. PO also cannot act in GF reliance on a warrant that is facially deficient (doesn’t particularize person or place to be searched/things to be seized).

4. PO also can’t act in GF reliance on a warrant when PO goes to magistrate he knows to be a “rubber stamp.”

vi. Note – Evidence obtained in violation of 4A is inadmissible in P’s case-in-chief, but may be used to impeach D’s direct testimony

f. Machupa (note case)i. Facts – PO illegally entered D’s house, saw pot, got a warrant based on

what he saw, executed it and seized the potii. D moves to suppress, court grants b/c ER is designed to deter illegal police

conduct. It was not the magistrate who blundered, it was the PO. PO did not act in GF

iii. PO didn’t tell magistrate he illegally searched. Magistrate must know all info to make an informed decision. If PO told magistrate about illegal search and warrant was still issued, maybe then PO could get GFE.

g. McClain (note case)i. Extends Machupa – only applies where prior search was clearly illegal

ii. In this case, PO did not know it was violating 4A (PO did not unreasonably believe criminal activity was occurring in the house even though he did not have PC to enter). Thus, when PO went to get the warrant, PO was acting in good faith so GFE applies. Neutral/detached magistrate issued warrant, objectively reasonable for PO to rely on warrant… evidence comes in.

1. “nothing more PO could or should have done to ensure the search (w/ warrant) would be legal”

h. Savoca (6th Cir.) i. Savoca I (pre-Leon)

1. Facts – Armed men (Ds) robbed 3 banks in OH with rubber masks. Arrest warrants issued, PO finds out D now lives in AZ, PO finds out about hotel room 135 by following Ds car there. Ds exit room, POs arrest them. POs get warrant for hotel room, find evidence.

2. Warrant application just said Ds were wanted for bank robberies and that they were seen in the hotel room. Ds move to suppress.

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3. Existence of PC to arrest will not necessarily establish PC to search – need something more (TOC), need a connection between the place to be searched and the evidence to be seized.

4. Affidavit established no more than a “bare suspicion” that evidence would be found in hotel room. 3 months had passed since robbery occurred 2,000 miles away. Just b/c 2 suspects are in a hotel room together does not establish PC that evidence of the crime is in there. Warrant invalid (no substantial basis).

ii. Savoca II (post-Leon) **KEY GFE TEST**1. Court reverses Savoca I based on GFE established by Leon.2. GFE test – objective standard whether a reasonably well-trained

officer (RWTO) would have known that the search was illegal despite the magistrate’s authorization

3. Where a warrant is issued, evidence will only be suppressed in 4 instances (b/c no RWTO would rely on it) (from Leon):

a. Where PO included knowing or reckless falsehoods in his affidavit

b. Where magistrate acted as a “rubber stamp” for POc. Where the evidence supporting the affidavit is “so lacking

in indicia of PC as to render official belief in its existence entirely unreasonable” (RWTO standard)

d. Where the warrant is so facially deficient that executing PO cannot reasonably presume it to be valid

4. Fact-specific determination of whether a RWTO would rely on warrant (TOC).

5. Reiterates that PC to arrest does not necessarily equal PC to searcha. In order to establish PC to search, a sufficient nexus b/w

location and evidence must be established. Turns on:i. Type of crime

ii. Nature of things seizediii. Extent of opportunity to conceal evidence elsewhereiv. Normal inferences that may be drawn to hiding

places6. Conclude that despite the court’s belief that PC didn’t exist, the

warrant wasn’t “so lacking” in PC that no RWTO could have relied on it. Thus, GFE applies, evidence comes in.

i. Wright (note case)i. Staleness – information is stale when enough time has passed that it is not

likely enough to achieve PC that evidence of the crime is still in the described location. As time passes, evidence becomes less reliable.

ii. Consider in staleness – lapse of time, nature of criminal activity, kind of property to be searched:

1. Drugs – used quickly, not likely to still be there after a short amount of time (Huffines [note case] – PC dissipated in 8-11 day period between when PO got warrant and when PO executed it).

2. Pornography – likely to still be there several weeks/months later

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j. Hulland (note case)i. PO bought drugs from D, 2 months later obtained a warrant.

ii. No RWTO would believe that evidence wasn’t staleiii. “Good faith isn’t a magic lamp for PO to rub whenever he is in trouble”iv. But – notes that evidence from a drug dealer becomes stale less quickly

than of a drug user. User uses it right away, dealer likely to have it around longer.

k. Laughton (note case)i. Affidavit included no info about nexus b/w location (Ds home) and

evidence (meth), thus there was no PC to search. Warrant issued, but no RWTO would believe evidence wasn’t stale.

l. McPherson (note case)i. D arrested outside his home for assault. SILA occurs, PO find crack in Ds

pocket. Apply for a warrant to search the home, no info in warrant connecting drug paraphernalia and Ds home.

ii. “A suspect’s mere presence or arrest at a residence is too insignificant a connection w/ that residence to establish the relationship necessary to find PC.”

iii. Bare bones affidavit – one that merely states suspicions, beliefs, or conclusions w/o providing some underlying particularized factual circumstances regarding veracity, reliability, and basis of knowledge.

iv. Bare bones affidavit is insufficient to support GFE b/c no RWTO would believe it was sufficient to support PC.

m. Evans (note case)i. D stopped for traffic violation, PO saw outstanding warrant for Ds arrest,

arrests, SILAs, finds pot. Warrant was actually invalid though, just hadn’t yet been deleted from system by a court clerk. Mistake was by 3rd party (clerk), not PO.

ii. Court says ER does not apply b/c ER is based on deterring misconduct. Excluding the evidence would not deter any clerk or any PO. (also no evidence clerk was trying to violate Ds 4A rights).

n. Herring i. D came to PO station to retrieve something from his impounded truck. PO

checks for any outstanding warrants, finds none. PO calls neighboring town to ask about outstanding warrants, there is one. PO asks for a copy of warrant to be faxed over. In meantime, PO follows D from impound lot, pulls him over, arrests him and SILAs, finds contraband. Turns out warrant was actually recalled but hadn’t been deleted from computer system by police clerk (arrest = illegal). D moves to suppress contraband.

ii. Lower court found that warrant wasn’t deleted b/c of negligence on part of police clerk (not knowingly or recklessly).

iii. An error that arises from nonrecurring and attenuated negligence is far removed from core concern of ER – deterrence.

iv. To trigger ER, PO conduct must be sufficiently deliberate that exclusion can meaningfully deter it. ER serves to deter deliberate, reckless, grossly negligent conduct, or recurring or systematic negligence.

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v. Here, it was one negligent incident, non-recurring, can’t be said that exclusion of evidence would deter this type of conduct. It was an innocent mistake, ER doesn’t apply, no suppression.

1. If PO knew warrant wasn’t valid, or if clerk was reckless in not deleting the warrant, or if the clerk was repeatedly negligent in deleting warrants (in which case POs might then be reckless in relying on warrants), then exclusion would be justified (b/c exclusion would sufficiently deter these actions).

vi. Weighs cost of suppression against benefit of deterrence deterrent effect of suppression must be substantial to outweigh any harm to the justice system… marginal deterrence does not “pay its way.”

o. Where there is a warrant, questions are:i. Did the magistrate abandon his detached/ neutral role?

1. If so – SUPPRESS 2. If not – ADMIT

ii. Did PO act in good faith with an objectively reasonable belief that the warrant was valid (aka that PC existed)?

1. If yes – ADMIT2. If no – SUPPRESS

IV. What is a Search?a. Katz

i. PO suspected D of using a pay phone booth to gamble. PO attached a listening device to the booth and heard D’s conversation, arrested him.

ii. D moves to suppress evidence gained from telephone convosiii. 4A protects people, not places – phone booth not a “constitutionally

protected place”1. What a person knowingly exposes to the public, even in his own

home, is not subject to 4A protection. But what he seeks to preserve as private, even in an area accessible to the public may be constitutionally protected.

iv. 4A governs not only tangible evidence, but also oral statements – no need for physical intrusion

v. Not enough that a PO reasonably expected to find contraband and restricted actions to the least intrusive means possible Constitution requires a warrant issued by a magistrate. Searched conducted without a warrant are per se unreasonable under 4A (subject to established exceptions).

1. Even if PO have PC, still need a warrant to search (unless an exception applies).

vi. Harlan concurrence 4A protects a person’s “reasonable expectation of privacy” (REP). 2 step test:

1. Person must demonstrate an actual (subjective) expectation of privacy; AND

2. That expectation must be one that society recognizes as “reasonable.”

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b. Constantino (note case) “public pay phone case”i. D stood at unenclosed pay phone, had convo, PO stood 3 feet behind him

and heard the whole incriminating thing. ii. No “search” D had no REP b/c any person standing on the street could

have overheard.c. Smith (note case) “cordless phone case”

i. Ds neighbor recorded D’s cordless phone convos w/ a Bearcat scanner (@ police direction), found out D was drug dealer. D moves to suppress tapes

ii. Although D might have had a subjective expectation of privacy, it was not one that society respects as reasonable because cordless phones use a radio signal that can be easily picked up by third parties within 100 feet.

1. It’s not whether it’s conceivable that someone could eavesdrop on a conversation, but whether it is reasonable to expect privacy.

iii. Here, D failed to carry burden of showing that range of signal from his cordless phone was so small that his expectation of privacy would be objectively reasonable.

d. White “informant w/ wire case”i. D had several incriminating conversations with an undercover cop that

were recorded and used against him at trial. D appeals to suppress tapes.ii. A person has no REP in a conversation with a third party… no REP that

the person with whom he is conversing will not then or later reveal the conversation to the police.

iii. 4A provides no protection to a misplaced belief that a person to whom D voluntarily confides his wrongdoing will not reveal it. D takes the risk.

iv. Irrelevant whether 3rd party (or undercover cop) use recording devices or radio transmitters in talking to the person – the talking is not protected by 4A, regardless of how the talking is transcribed.

e. Davis (note case) “hidden camera drug deal case”i. Informant entered Ds home with a hidden video camera, taped Ds drug

deal to informant. D moves to suppress video tape.ii. Once D invited informant into his home, D forfeited his privacy interest in

those activities that D exposed to informant. “what you expose to 3rd parties isn’t protected by 4A”

1. Camera merely memorialized what informant was able to see as an invited guest.

2. Camera did not capture anything in which D retained a privacy interest so no 4A violation occurred.

f. Nerber (note case) “video hotel coke case”i. FBI rented hotel room, hid video camera. Brought Ds to room, then left Ds

alone to be taped. Taped Ds snorting coke. Ds move to suppress.ii. No search when agents were in the room (Ds exposing actions to 3rd

parties, bore risk of exposure, no REP)iii. Search, though, once agents left. Ds had REP once agents left because

people are comfortable doing things in private that they are not comfortable doing in the presence of others. Only risk Ds were taking was

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exposure by the other person. Expectation that gov’t was not videotaping them in the hotel room was objectively reasonably. Tape suppressed.

g. Sheler (note case) “rep in unseen clothing/shoes case”i. PO orders D to take off shoe, finds glass shards in bottom of Ds shoe that

matched broken door in robbed house.ii. This was a search a persons expectation of privacy in his shoes is

respected by society because people generally do not expect that others will seize their shoes or portions to explore unseen features outside of normal view of public (note that this applies only to unseen portions… blood on outside of shirt can be readily seen by 3rd parties and is exposed to the public).

iii. Also D had a subjective EP… soles of shoes were not exposed to public.h. Forrester (note case) “no rep in internet activity case”

i. PO installed a “pen register” which allowed them to see who D sent emails to, the IP addresses of websites he visited, and the volume of emails sent/received.

ii. No search no subjective EP b/c people realize that the internet company, as a third party, has the ability to view this information. Also, society does not respect the EP b/c there is no legitimate EP in information voluntarily turned over to third parties.

iii. PO did not access contents of emails, solely the to/from info and sites visited. Katz drew a clear line between info available to 3rd parties, and the contents beyond that. (analogize to a letter… anyone can see the shape size and address… but not what is inside. It is only the contents that are protected, only the contents are hidden from view by the sender).

i. Oliver (Open Fields doctrine) “no rep in open fields case”i. Open fields doctrine permits POs to enter and search a field without a

warrant.ii. POs went to Ds house, past a locked gate w/ a ‘no trespassing’ sign, went

a mile past Ds house and found a field of pot plants.iii. 4A specifies privacy in houses, papers, and effects…. Does not extend to

open fields. Thus, a search of an open field is not an ‘unreasonable’ search, and 4A only prevents unreasonable searches.

iv. An individual may not legitimately demand privacy for activities conducting out of doors in fields, except in the area immediately surrounding the home (“curtilage” – the area to which the intimate activity associated with the sanctity of a home and the privacies of life)

v. Open fields do not provide the setting for the intimate activities that 4A is indented to shelter from gov’t interference/survelliance.

1. Gov’t may legitimately view open fields from the air… thus there is no legitimate REP (exposed to public view).

vi. Doesn’t matter that the gov’t violated property rights – that is but one factor in determining reasonableness (any person, gov’t or not, can trespass… if it’s exposed to the public, too bad).

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vii. Also doesn’t matter that D took steps to conceal it. That goes to subjectiveness… but taking steps to conceal it doesn’t make it an EP respected by society.

j. Mooney (note case) “homeless have rep in bags case”i. Homeless man living under bridge, had closed duffel bag and cardboard

box.ii. PO could search the place – public area. PO could not search the bag and

box though… they represented the last shred of privacy homeless man had, society respects Ds expectation of privacy in them.

k. Acosta (note case) “no rep in common area case”i. Tenant in apt. building has no REP in common areas of building,

including backyard of building.l. Ramaekers (note case) “no rep in sidewalk case”

i. No REP in the sidewalk leading up to someone’s house. Person impliedly consents to visitors going to front door of the house (unless there is manifestation of the intent to forbid access to visitors).

ii. Pathway leading to house not w/i curtilage b/c it does not harbor intimate activity associated w/ sanctity of home and privacy of life

m. Rose (note case) “no rep in porch case:i. No REP in porch of house b/c it is open to the public

ii. No REP in items plainly visible from porch through the windows (plain view doctrine)

iii. Even though PO had to move across porch to look through window, no REP b/c society can expect visitors to move around the porch while waiting for door to be opened

iv. Use of flashlight to look through windows not a search b/c it is a common device that can be expected

n. Crasper (note case) “Knock and Talk”i. Anyone can walk up to anyone’s house, knock on the door, and chat with

the person if the person opens it. Thus, not a 4A violation when the gov’t does so.

o. Quintana (note case) “Knock and Talk – walkways not w/i curtilage”i. 4 considerations for curtilage (from Dunn)

1. Proximity of area to the home2. Whether the area is included in an enclosure with the home (fence,

hedge, wall, etc.)3. How the area is used 4. The steps the resident has taken to prevent observation by

passerbysii. No REP outside the curtilage, and no REP in anything within the curtilage

that can be observed from outside the curtilage.iii. Despite it being within the curtilage, the main entrance to the home is so

widely used by the public as a point of access that it accounts to public knowledge that the public may at least go up to a home’s front door. THUS

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1. Certain areas such as driveways, walkways, or the front door and windows of a home do not usually carry a REP because they are open to plain view and are property approachable by any member of the public (absent obvious steps to bar public access).

iv. Since public can do it, police can do it. And police are free to use their senses and common sense when they do so. Thus, it is not a 4A violation if the PO legitimately walk up to door, and see, hear, or smell something coming from inside the dwelling.

v. Knock and talk is limited to only the areas which the public can reasonably expect to access.

1. Thus a side or back door is not usually permissible for knock-and-talk unless they are used as a common entrance to that particular home.

2. Or if PO knows person is home and doesn’t answer back door, PO may be able to go then knock on the back door.

p. Ciraolo “airplane sees pot case”i. D has 2 fences surrounding his backyard (included within the curtilage of

Ds home). POs fly a plane over Ds yard and observe pot plants. REP?ii. Clearly, D had a subjective EP. But is it one society respects?

iii. That the area is within the curtilage does not bar all police observation. iv. Any member of the public flying a plane over Ds yard would be able to

see everything the POs saw. If public can do it, gov’t can do it. Gov’t not required to shield their eyes or obtain a warrant to view what is readily viewable to the public. D no REP in backyard.

q. Holden (note case) “neighbor tapes case”i. Ds neighbor allowed the police to put up a video camera on his property to

tape outside of Ds house. Taped many cars going by, which was enough for POs to get search warrant for Ds house.

ii. PO merely recorded what was open to public view, no different than an officer sitting there the whole time. No REP in what is open to public view

r. Augafa (note case) “public sidewalk taping case”i. PO put up camera of public sidewalk, taped D in a drug transaction. No

REP, D transacted in public place open to public view.s. Vankesteren (note case) “taped hunting case”

i. PO places camera on Ds open and taped D illegally hunting. Open fields doctrine applies… no 4A protection of open fields. POs could have sat on the yard an observed it, video captured nothing more than what PO could have lawfully observed with his own eyes.

t. Cowles (note case) “taped employee case”i. PO taped D stealing cash at work. REP? No b/c even if D has subjective

EP, no objective EP b/c she could have been seen by members of the public or fellow employees. Also, D worked in a field that is commonly videotaped for security purposes, thus her REP becomes even lower.

ii. Distinguish from a private office reserved for someone’s exclusive use… greater REP there so long as the ‘private’ office isn’t so open to fellow employees as to erode the EP.

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u. Greenwood “Drugs found twice in trash case”i. PO asked trash collector to put aside Ds trash bags so PO could search

through them. PO found narcotics, used it to get a warrant, searched Ds house and found lots of drugs. Whole process occurred a second time. Trash searches in violation of 4A?

ii. Search doesn’t violate 4A b/c D had no REP in his garbage. Maybe a subjective EP, but not one society respects as reasonable.

iii. Society does not respect EP as reasonable because D sufficiently exposed the garbage to 3rd parties to defeat 4A claim (upon exposure, EP no longer reasonable)

1. Reasoning trash accessible to animals, children, scavengers, snoops. Also, trash put at curb for express purpose of conveying it to 3rd person (trash collector) who might himself search through it. Police can do anything public can do.

v. Pratt & Rikard (note cases) “Required trash disposal cases”i. City ordinance requiring trash disposal to garbage man does not create an

REP. Still exposing it to 3rd parties.w. Hedrick (note case) “Trash in middle of driveway case”

i. D kept trash can on driveway 50 ft from house, 18 feet from public sidewalk, 20 feet from garage. @ night, PO went onto driveway and looked thru garbage cans

ii. No 4A search because the garbage was readily accessible to the public so as to render any EP objectively unreasonable.

1. Reasoning: Distance from public area to trash cans was short; garage collector collected trash from that location; cans clearly visible from sidewalk; no fence or barrier separating cans from the public

iii. General rule – reasonableness of EP goes up at trash gets closer to the house.

x. Redmon (note case) “Trash on shared driveway/walkway case”i. D kept trash can just outside garage on driveway shared w/ neighbor, PO

searched through it.ii. No 4A search b/c driveway also served as walkway to front door

(walkway to door considered open to the public, implied permission to walk on it).

y. Merrill (note case) “PO drove onto driveway case”i. PO drove onto Ds driveway where he observed pot plants.

ii. No 4A search b/c any member of the public could have gone onto the driveway and seen the same thing (cops can do what public can do)… thus D has no REP.

z. Sampson (note case) “Reach onto lawn for trash case”i. D left trash bags on lawn close enough to public street that someone could

reach onto property and take them without actually walking onto property.ii. Court said this was a search because cops trespassed onto the curtilage of

Ds property to get the trash.

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aa. Hauser (note case) “Trash @ back of house case”i. D kept trash next to house in back of house (so not in an area of general

public access), trash collector picked it up there. PO asked trash collector to put aside Ds trash, drugs found.

ii. No 4A search b/c trash was picked up in the normal manner. No one other than the authorized collector entered Ds property. While D may have had REP while trash still in the back of his property not exposed to the public, once trash collected in normal manner it was exposed to a 3rd party (REP gone) and the gov’t could look through it.

bb. Scott (note case) “Paper shredding case”i. D left garbage bad w/ shredded papers on front curb. PO picked it up and

pieced it back together. ii. No 4A search b/c when person exposes trash to public by placing it on the

curb, he no longer has any REP in it. Shredding was merely a manifestation of Ds subjective EP. D takes risk, even w/ shredded docs, that trash will be rummaged through upon disposal.

cc. Cabral (note case) “no rep in spit case”i. D spat on a public sidewalk, PO scooped up spit for DNA test

ii. PO not searched in violation of 4A spitting on public sidewalk was voluntary, D took risk someone would take possession of that bodily fluid

dd. Electronic Plating Co. (note case) “contaminating sewer case”i. PO took sample from sewage pipe leading away from D’s factory, found

D was illegally pollutingii. D not illegally searched once waste is discharged into public sewer

system, there can no longer be any REP in itee. Kyllo

i. PO used a thermal imaging device to see the heatwaves emanating from Ds house in order to determine whether D had heat lamps used in growing pot.

ii. Use of the thermal imager violated 4A b/c D had a REP in the heat waves of his house. Reasoning

1. Imager observed intimate details of the home (“lady of the house taking her daily sauna”). Home is an especially protected area by 4A. Any detail of the home is an intimate detail, thus 4A is violated when any detail of the home not visible to naked public eye (or smell) is detected by PO.

2. Technology allowed PO to see what he otherwise would not be able to see with his own senses. This was not something that was in public view, not exposed to public.

3. Thermal imager showed lawful as well as unlawful information for example, of the lady taking a sauna.

4. Information would not have been known without the use of this device that was not in general public use

ff. Place (note case) “dog sniff not a search case”i. Dog sniffs drugs in Ds bag. Sniff a search?

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ii. A dog sniff is not a search because it detects only contraband items and does not expose noncontraband items that otherwise would remain hidden from public view.

iii. Dog sniff is much less intrusive than PO rummaging through Ds luggage.iv. EP diminished when Ds luggage is in a public place being handled by 3rd

parties (train station, for example)gg. Thomas (note case) “dog sniff outside apt”

i. Dog sniffed outside Ds apartment and detected contraband.ii. Dog sniff was a search. D has a much greater EP in his apartment (home)

than in a train station (public place)iii. Dog sniff allows POs to detect what they otherwise would not be able to

detect using POs own senses.iv. Is it reasonable for a person to think they have to disguise a smell in their

own home that isn’t detectable to a human nose?hh. Horton (note case) “dog sniff elementary school kids”

i. Big dogs sniff crotches of elementary school kids.ii. Dog sniff was a search. Kids had REP in their persons.

iii. Intrusion into body must greater than intrusion into luggage.iv. People in society take care to not let odors escape from body (thus, scent

is not something they expose to the public).v. Note that court doesn’t say all sniffs of a person violate 4A. Yes it is a

search, but issue here was whether it was unreasonable (it was in this case – too intrusive so crossed the line of reasonableness).

ii. Caballes (big note case) “dog sniff during traffic stop case”i. PO stopped D for speeding, while writing a ticket, dog alerted to trunk,

drugs were found. ii. “A seizure lawful at its inception can violate 4A if its manner of execution

infringes on interests protected by constitution.”1. Ex. lawful traffic stop can become unlawful if D held for longer

than a reasonable time it takes to write a ticketiii. Here, traffic stop did not last longer than a reasonable time, so 4A only

violated if dog sniff impermissibly infringed on Ds privacy rights Court holds it does not. Reasoning

1. Conduct that does not compromise a legit privacy interest is not a 4A search

2. Possessing contraband is not a legitimate interest because the expectation that certain facts will not become known to authorities is not the same thing as an EP that society respects (basically, society does not respect an expectation of privacy in contraband)

3. Thus, conduct that reveals only contraband is not a search b/c there is no legit privacy interest in contraband

iv. Distinguished from Kyllo where the imager detected lawful as well as unlawful information. Dog sniff detects solely unlawful information.

jj. Brock (note case) “dog sniff outside bedroom case”i. Dog sniff outside Ds bedroom alerted to drugs.

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ii. No 4A violation b/c only contraband was detected, no other private info (of which D has a REP).

kk. Rabb (note case)i. Drug sniffing dog walked outside Ds house and alerted.

ii. Reiterates that a home is different from a public place like an airport. Rationale is that D has a legitimate expectation that the contents of his closed apartment would remain private and could not be ‘sensed’ from outside his door.

iii. Dog sniff crossed the “firm line” the 4A draws at the home. iv. Smell of pot is an ‘intimate detail’ of the home no less than the heat wave

in Kyllo.v. Use of dog allowed PO to smell what he couldn’t have smelled with his

own nose (just like the thermal imager in Kyllo).vi. Dissent says Caballes applies… no REP in contraband, doesn’t matter that

it’s in the home.ll. Advocating Dog Sniff cases

i. P – More like Caballes. Sniff (or technology) shows only contraband items. There is no REP in contraband, so technology that shows only contraband is not a search b/c there is no REP.

ii. D – More like Kyllo. Technology shows both lawful and unlawful activity, you retain an REP in lawful activity to technology that allows PO to see lawful activity they would not otherwise be able to see is an unreasonable search. Technology increases senses of the PO and allows them to see something the public is normally unable to see (if technology is in normal public use, REP diminishes [cordless phones]).

V. Search Incident to Lawful Arrest (SILA)a. For a warrantless search, P must prove all facts necessary to show an exception to

the warrant requirement SILA is one exception. Requires two elements:i. Valid arrest

ii. Search is incident to arrest (includes temporal and spatial aspects). Remember 4A still requires the search to be REASONABLE

b. Since warrantless search is per se unreasonable, burden on P to show that the search was reasonable.

c. Schmerber i. D got in drunk driving accident, @ hospital PO ordered a blood sample be

taken so Ds BAC could be tested. D over the limit, convicted of DUI. Blood sample a 4A search?

ii. Intrusions into the human body require heightened protection.iii. Valid arrest gets PO SILA, but SILA must be reasonable. SILA here

unreasonable b/c intrusion into skin goes too far. iv. Search unreasonable under SILA, any other exception to warrant

requirement? Reasonableness determined by:1. Nature of evidence? Easily ‘destroyed’2. POs actions justified? Yes- Emergency in which PO might

reasonably believe delay to get warrant would result in destruction of evidence

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3. Means employed reasonable? Yes- blood sample not too intrusive b/c test is commonplace, no risk/trauma/pain

4. Manner evidence obtained? Yes- Sample taken by dr. in hospital according to accepted medical procedures

d. Lee (note case)i. D shot someone, was shot back and got bullet in shoulder. PO want to

force D into surgery to take out bullet to prove it was D that got shot (and did the shooting).

ii. PO clearly had PC to support a search warrant. But would the search be reasonable?

1. Balance of gov’ts need against privacy interest of the individual2. Court finds it would be hugely intrusive to force D into surgery

(including risks) and the need of the gov’t was small (plenty of other evidence).

3. In balancing these 2 factors, court determines search = unreasonable

e. Grier (note case)i. D pulled over, choking on baggie, PO puts fingers in Ds mouth for ~15

seconds and pulls out bag. Unreasonable search?ii. Distinguishes from Conwell where PO use excessive force by using mace,

10-15 minute struggle, D wrestled to ground. Unreasonable b/c invasion to Ds bodily integrity was too great… less intrusive methods available to PO

iii. Here, short amount of time, no mace, no physical altercation, PO was acting to preserve Ds health rather than harm him. Intrusion was minimal. Balance gov’t interest v. individual interest search = reasonable.

f. Chimel i. PO has arrest warrant for D but no search warrant. PO arrived to arrest D,

D gave no consent to search but PO extensively searched Ds house for 45 mins, seized evidence. SILA?

ii. Rule (Rabinowitz) – a warrantless search “incident” to lawful arrest may generally extend to the area that is in the “possession” or under the “control” of the person arrested.

iii. Rule – when an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the person might seek to use in order to resist arrest or escape

1. PO may search the person of the arrested to prevent concealment/destruction of evidence

2. PO may search the area into which D might reach in order to grab a weapon or evidence

iv. For a warrantless search incident to lawful arrest to be reasonable, scope of search must not exceed Ds person or the area within his reach @ the time he is arrested. Reasoning (without these 2 factors, a warrant is needed… if officer not in danger or evidence not threatened to be destroyed, PO can just go get a warrant)

1. Officer safety2. Preservation of evidence

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g. Robinson i. PO saw D driving a car when PO knew 4 days earlier Ds license had been

revoked. PO pulled D over and lawfully arrested him (PO had PC to arrest). D then performed SILA, pulled cig package out of Ds pocket, searched in package and found drugs. SILA reasonable?

ii. PO may SILA D for 2 reasons 1. Search for weapons (officer safety); 2. Search for evidence (so no destruction)

iii. Since SILA is lawful, no additional justification is needed (PO do not need to show PC to believe that weapons or evidence would actually be found on D PC to arrest is already sufficient).

iv. After lawful arrest, a full search of person and any containers found on the person is reasonable, period. FACT OF CUSTODIAL ARREST GIVES RISE TO THE AUTHORITY TO SEARCH.

v. Distinguished Terry – don’t get full search there b/c w/ stop + frisk there is no PC. W/ lawful arrest, there is PC, so you get a full search instead of a limited pat-down for weapons.

h. Lynch (note case)i. PO looked through Ds pager after valid arrest

ii. Just as PO can look thru wallet or address book found on D, PO can look through electronic device found on D.

i. Atwater (note case)i. PO sees woman driving kids w/ no seatbelt – misdemeanor in TX. Can PO

do a full custodial arrest for a minor crime?ii. Standard of PC applies to all arrests. If PO has PC to believe D has

committed even the smallest crime, PO may do a full custodial arrest (thus get SILA).

j. Sherman (note case)i. PO has PC to arrest D, but does not actually arrest him, just does a full

search of D. Lawful?ii. If PC to arrest gets PO SILA, PO still has SILA if he has PC to arrest but

doesn’t actually arrest.k. Chadwick

i. Ds get to train station with locked footlocker. PO has PC to arrest Ds. Followed Ds to car, put footlocker into car, but before starting the car POs arrest Ds. POs got key, transport Ds car to station and 1.5 hours later search inside locker w/o warrant. No belief Ds could get into locker or that locker contained explosives. Warrantless search reasonable?

ii. Warrantless search, even after lawful arrest, is not reasonable if the search is remote in time or place from the arrest, or no exigency exists.

iii. Once POs have reduced Ds property to POs exclusive control, no longer any danger that D will obtain a weapon or destroy evidence (which are the justifications for SILA). At that point, search is no longer incident to arrest.

iv. Since not incident and no other exigency, warrantless search unreasonable.

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l. Robalewski (RI Supreme Court)i. D was escaped mental patient. POs (~7) went to house D was staying at to

arrest D. D was sitting alone @ kitchen table, POs immediately arrest D. Several other adults around. Kid says jacket on couch in adjacent room is Ds, PO searches it finds gun. Search of jacket reasonable?

ii. Record does not support that Ds jacket was within the area of Ds immediate control at time of Ds arrest, thus search not incident, search = unreasonable.

iii. Factors to consider:1. # of officers present (amount of restriction on D)2. Other adults that could aid D3. Whether D is handcuffed4. Barrier between where D is and the searched area5. Whether D w/i ‘lunge and leap’ of searched area (but make sure

cops aren’t just bringing D by a ‘lunge and leap’ area just so cops can search it)

m. Belton i. PO pulled over car for speeding, 4 men in car (none of which seemed to

own the car), smell of burnt MJ, MJ wrappers on floor of car. PO arrested men for possession of MJ. PO separated 4 men, searched wrappers and found MJ. Then M and arrested all 4, SILA all 4, then PO went and searched inside passenger compartment of car, found coke in jacket belonging to D. Search of jacket permissible?

ii. Scope of a search must be strictly tied to a justified by the circumstances which rendered its initiation permissible (Chimel)

iii. Court wants to create a clear, bright line, easy to apply standard.iv. Articles inside the passenger compartment of a car are within the area into

which an arrestee might reach in order to grab a weapon or evidencev. Rule – 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 automobile and any contents found therein.

n. Knowles (note case) “routine traffic stop”i. D stopped for speeding. PO could have arrested but instead gave citation.

PO does full search of car.ii. Court says search unreasonable b/c it didn’t fit into either Chimel

justification (officer safety & preservation of evidence) threat to officer issuing a traffic citation is much less than the threat in a full custodial arrest (arrest involves danger that comes from extended exposure, stressfulness of the situation, etc…. not from the grounds for arrest)

iii. Threat to officer safety in routine traffic stop justifies minimal intrusion of ordering passengers out of car, but does not justify greater intrusion of full search of car

iv. Also, w/ a traffic stop… nothing fits in 2nd justification. For a speeding ticket, all the available evidence is obtained from the citation, there is nothing else for D to destroy

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v. Overall rule – w/ a routine traffic stop, full search of car is unreasonable because of the diminished concern for officer safety and the absence of fear of loss of evidence.

o. Turner (9th Cir.)i. PO had arrest warrant for D and info that D was located in a certain

apartment. PO bust into apartment where D is in bed with a woman and a gun. PO handcuff D and take to other room, then come back and search bedroom finding guns and drugs. Search reasonable?

ii. Issue – does SILA apply to area w/i Ds control when arrested even after D removed from the area?

iii. Yes, 2 considerations:1. Searched area must have been in area of Ds immediate control

when D arrested;2. Events occurring during arrest and between arrest and search

a. Law won’t require PO to put themselves in danger to obtain evidence

iv. Here, search reasonable b/c contraband in immediate area of Ds control when D arrested, and PO took D into next room solely for their own safety and then searched immediately after D was removed.

p. Young (note case)i. PO arrest Ds and handcuff them lying on stomach on floor. Then PO

searched area surrounding Ds @ time of arrest and find gun.ii. Officer safety justified cuffing Ds before searching. Even though Ds are

cuffed and can no longer reach weapons or evidence, cuffing them was done for officer safety and law won’t force PO to leave them uncuffed just so that PO may find weapons or evidence.

iii. So long as search has a close spatial and temporal scope, good to go under SILA

q. Rege (note case)i. Search of the area in Ds immediate control @ time of arrest may occur

subsequent to the arrest so long as it is reasonably contemporaneous and nothing has occurred in the meantime to render it unreasonable.

r. Thornton (big note case) “recent occupant”i. PO checks Ds plates and sees they’re registered to a different car. D then

parks car and gets out, PO pulls in and goes up to D and stops him. D consents to a patdown, PO asks if D has drugs on him, D pulls out bag of drugs. D cuffed, placed in cop car, PO goes and searches Ds car finding a gun. Search of car reasonable?

ii. Yes, court extends Belton reasoning to recent occupants of cars. Since PO can search the passenger compartment of a car incident to lawful arrest, PO can do the same in an instance where D is a recent occupant of the car.

s. Leal (note case)i. PO arrest D in his home, then handcuff him and put him in cop car. Cop

then goes back and searches area of arrest (in home). Reasonable?ii. Not reasonable, D was fully stable in back of car, no risk to officer, no risk

of evidence being destroyed. PO can go get a warrant. Not going to extend

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the warrant exception when the justifications for the exception aren’t present.

t. Gant i. D arrested for driving with a suspended license, handcuffed and put in

back of cop car. PO then search Ds car and find gun & coke in jacket.ii. Rejects broad reading of Belton (that upon valid arrest, PO automatically

gets to search entire passenger compartment). Says true meaning of Belton is that PO only gets to search passenger compartment if D is unsecured and within reaching distance of it at the time of Ds arrest.

1. If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for SILA exception are absent so rule doesn’t apply.

2. Distinguish Belton – in that case, there was one lone officeriii. Rule Once D is secured, PO can only search inside passenger

compartment of car if PO reasonably believes evidence of the crime D is arrested for will be found in the car. Reasoning

1. Unique circumstances of automobile (basically creates new justification for automobiles)

iv. Note – PO only has to have reasonable belief that there is evidence in the car and then PO gets full search w/o a warrant (even though no PC).

v. B/c D not w/i reaching distance of car @ time of arrest and PO could not reasonably believe evidence of crime of arrest would be found in car, search of car was unreasonable.

VI. Stop and Friska. Overall rule PO must have a reasonable suspicion grounded in specific and

articulable facts that a person they encounter….i. Facts must justify a reasonably prudent person (objective standard)

b. Burden on state to show that a stop was reasonable (warrantless seizure per se unreasonable)

c. Factors going into whether POs intrusion into individual was reasonable (TOC):i. Gov’t interest vs. individual privacy interest

1. Effective crime prevention2. Officer safety

ii. Officer experience iii. Nature of the crime – particular attention to danger of crime

d. Terry v. Ohio i. PO observed Ds walking back and forth many times in front of a store

front. PO suspicious, stops Ds (seizes them), frisks them and finds a gun.1. Could PO lawfully seize them?2. If so, could PO lawfully search them?

ii. PC gets PO the ability to:1. Seize person and keep him (custodial arrest); AND2. Through SILA – Full search of person and area in immediate

controliii. So w/o PC can PO stop D? And can PO search D?

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iv. Rule – (1) When a PO has an objectively reasonable suspicion (from specific facts) that D is engaging in criminal activity, it is reasonable under 4A for PO to stop (seize) D briefly to confirm or dispel the suspicions; AND (2) if PO has a reasonable, articulable belief that PO is armed and dangerous, it is reasonable under 4A for PO to do a limited pat-down (search) for discovery of weapons.

1. So can stop if there is a reasonable suspicion that criminal activity is afoot

2. But can only search if there is a reasonable, articulable belief that D is armed and dangerous

a. Sole justification is officer and public safety – only extends to limited pat down for weapons, preservation of evidence is not a justification

v. Reasonable suspicion is an objective standard – would the facts available to the PO @ the time of the stop [or search] would justify a reasonably prudent man that D was engaging in criminal activity [or that D was armed and dangerous]. TOC test, GF is not enough

vi. Whenever a PO accosts an individual and restrains his freedom to walk away, PO has “seized” that person

vii. Here PO seized and searched w/i meaning of 4A – question is whether this was reasonable

viii. Also have to ask whether POs actions were reasonably related in scope to the circumstances which justified the initial intrusion

e. Note casesi. Sibron – PO see D talking to known druggies, follow D into restaurant and

confront, says “you know what I want.” D puts hands in pocket, PO puts hand in right after, finds coke. Search unreasonable b/c PO could not point to particular facts from which it could reasonably be inferred that D was armed and dangerous. Also, pat-down doesn’t let you go into pockets unless you feel a weapon from the pat-down.

ii. Hensely – Gov’t has a little bit lower interest when crime has already occurred vs. crime is occurring b/c gov’t isn’t then preventing crime. However, gov’t still has an interest in solving crime/seeking justice. Gov’t interest still > than individual interest so PO have same stop & frisk abilities after crime occurred as they do when crime occurring.

iii. Alabama v. White – Reasonable suspicion is a lower threshold than PC. For full stop, PC required. For limited detention, only need RS. Info leading to RS can be less reliable and less info overall than req’d for PC.

iv. Florida v. J.L. – PO got anon. tip that black boy in plaid shirt on corner had a gun. PO went to corner, saw black boy in a plaid shirt on the corner. Frisked him and found a gun. Unreasonable b/c PO had no RS whatsoever to believe that boy was armed and dangerous. No predictive facts, no reliability in anon. tip, nothing for P to argue that RS existed. Anon. tip must be reliable in assertion of illegality, not just in ability to identify a specific person.

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v. Grigg – Court rejected notion that police may always stop a person for suspected misdemeanor but also rejected notion that police may never stop. Depends on nature of misdemeanor – whether PO may reasonably believe it poses a threat to public safety

f. Bower (CA Supreme Court)i. PO based his suspicion on a white man being among a group of black men

in a high crime area. PO had never observed a white person in the neighborhood @ that time of night for an innocent reason. When PO stood up, group scattered. PO chased one and told him to stop. D stopped, patted down for weapons, gun found (illegal for D to possess weapons). PO have RS?

ii. P must show specific and articulable facts which reasonably caused officer to [subjectively and objectively] believe:

1. Some activity out of the ordinary was occurring or was about to2. Activity was related to crime3. Individual under suspicion related to the crime

iii. Court says following things are not factors going to whether something was ‘out of the ordinary’

1. Race – race is not an unusual circumstance, everyone has a right to be everywhere regardless of race

2. Nighttime – time of day is not an activity by a citizen3. Location – merely interacting in a high crime area does not elevate

activity to criminal activity4. Specialized knowledge – objective standard says what a prudent

man would believe, not what that officer would believeiv. Furtive behavior alone does not get you to RS – people have many

legitimate reasons to avoid police, just avoiding them doesn’t create RS. 1. Police can only force you to stop when they have cause (RS). If

they don’t have cause when approaching you, you refusing to stop doesn’t then create the cause.

v. TOC no RS.g. Note cases

i. Wardlow (big note case) – PO driving through high crime area, D sees them and takes off running.

1. Court declines to make a per se rule that flight alone or being in a high crime area alone always = RS. Test is TOC.

2. Rule – an individual’s presence in an area of expected criminal activity, standing alone, is not enough to support reasonable articulable suspicion that D is committing a crime BUT high crime is a factor to be considered in the suspicion calculation AND evasive behavior is also a factor.

3. Test is TOC. PO justified in using commonsense judgments and making inferences about human behavior…given the facts here, PO was justified in having RS that D was involved in a crime.

4. Yes, people have a right to go about their business. Running away @ sight of police is not going about ones business.

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ii. Barber – a person of a specific race being “out of place” in a particular neighborhood does not support RS. Basically race is never enough. So ignoring race, where there other factors sufficient to support RS?

iii. Weaver – PO saw black D wearing certain clothes, off a certain flight known as being a drug route, carrying 2 bags, running for cab. PO considered more than just race so given TOC, PO had RS (but wouldn’t have RS if PO based RS on race alone).

iv. Thomas – Victim described 2 assailants – race, gender, age, height, clothing. PO then stopped black man who met description. PO have RS? Yes, given TOC. Race can be A factor, just not THE ONLY factor.

1. Brown v. City of Oneata – similar to Thomas – described including race, gender, age, cut on hand. PO questioned young black men & other nonwhite citizens. PO have RS? Yes, PO using established description, race but one factor. Also no equal protection claim b/c no discriminatory intent.

v. Harris Law Review Article – basically says that the high crime area + flight = RS has a disparate impact on minorities because… minorities are more likely to live in high crime areas, and given bad experiences w/ police (given that they live in high crime areas, or b/c of racial profiling, or even other innocent explanations), they are more likely to distrust police and flee from them… which then leads to more frisks, which then leads to more distrust… circular problem.

1. Another article says racial profiling is based on statistical reality, not racism.

vi. Hester – mere membership in a criminal street gang, without additional facts supporting inference of criminal activity, does not get PO to RS.

vii. Whren – in high crime area, PO pulled up behind D, D made a sudden right and sped off (over limit). PO pulled over D for traffic violation and saw crack in Ds hand. D argues “traffic violations” can be pretext for pulling D when real reason is b/c of drivers race. Court affirms that place for this argument is equal protection, not 4A (subjective intent of POs isn’t relevant in 4A, just whether it was objectively reasonable to pull D over… which it was… D violated traffic law). Basically is RS existed but PO stopped D for another reason, stop is still ok b/c objectively, RS existed.

viii. Whitehead – PO pulled D over for speeding, asked D all sorts of questions, checked for arrest warrants, checked if car stolen… then dog came and alerted to car door. Court said stop was unreasonable b/c “traffic stop” was a pretext for stopping D to see if D had drugs. Can lawfully stop for traffic violation, but real reason PO stopped was drug violation which PO had no RS whatsoever (esp. if D stopped instead of all other cars on highway just b/c of Ds race). Also, D refused to consent to a search of the car; court says PO can’t base RS off a citizen’s exercise of a constitutional right. When stopping for traffic violation its an unreasonable seizure to detain any longer than necessary to issue a warning or citation. Can’t detain longer just to build enough to reach RS. PO exceeded this, Ds 4A rights violated, suppression.

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ix. Miguel – mistake of law makes a stop unreasonable (PO stops D for having something hanging from rearview mirror when this is lawful) but mistake of fact alone does not if there is an objectively RS (in GF). Mistaken belief that rental car was overdue (which was told to him by car company) when it really wasn’t doesn’t make stop unreasonable.

x. Davenpeck – Subjective intent of belief of the PO is irrelevant so long as objective facts support PC. Subjective intent is no basis for invalidating an arrest so long as objectively reasonable facts exist (so PO can in his own mind stop D on a pretext, but so long as all the facts known to him support RS or PC to the objective officer, no problem, the seizure was not unreasonable).

h. Mendenhall i. D gets off plane, PO suspect her of drug trafficking. Stop her and ask her

some questions, ask her to come to office, she agrees and then consents to a search of her person where heroin is found.

ii. Rule – a person is “seized” only when, by means of physical force of a show of authority, his freedom of movement is restrained.

1. Example – in Terry, though PO stopped D to ask him questions, D not actually “seized” until PO put his hands on D and physically restrained him to search for weapons.

iii. As long as the person to whom questions are put (by PO) remains free to disregard the questions and walk away, there has been no 4A intrusion that would require particularized and objective justification (RS).

1. So basically, PO can stop anyone on the street and ask them questions and that is not a seizure. PO needs zero justification to walk to someone on the street and ask them a question.

2. What is a seizure is when the PO stops them and the person is not free to leave (either by physical force or show of authority) for which case PO needs RS to justify the stop.

iv. Rule – a person has been seized within the meaning of 4A only if, in the TOC, a reasonable person would have believed he was not free to leave (established by physical force or show of authority by PO).

v. Examples of instances where reasonable person would not feel free to leave:

1. Threatening presence of several officers2. Display of a weapon by an officer3. Some physical touching of the person of the citizen4. Use of language or tone of voice indicating that compliance with

the POs request might be compelled.vi. D not seized in this case… no objective reason for D to believe that she

was not free to end the conversation and go on her way (reasonable person would have felt free to leave).

1. DO NOT HAVE TO BE TOLD BY PO THAT YOU ARE FREE TO LEAVE

vii. B/c D not unlawfully seized, consent is not FRUIT.i. Note Cases

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i. Royer – D stopped in airport, PO says they suspect him of drug trafficking, ask for his ticket and ID. Then asks D to come to PO office without giving back ticket and ID. Court says a reasonable person would not feel free to leave in that situation so D was seized.

ii. Bostick – PO came onto Ds bus, checking Ds ticket and ID and returned them. Then PO asked D to consent to a search of his bags, D consented and drugs were found. D argues he didn’t feel free to leave b/c if he left the bus would leave w/o him and separate him from his luggage. Court said not feeling free to leave the bus was not caused by the PO, D would not have wanted to leave the bus even without the POs request. Appropriate questions – whether a reasonable person would feel free to decline the officer’s request or otherwise terminate the encounter.

iii. Drayton – fact that PO wears (or does not wear) a uniform, badge, or gun has little weight in the “seizure” analysis – this is normal police wear to be expected by public.

iv. Cao – PO practice was to interview and catalog Asian men they suspected of being gang members. PO cataloged D and then later used his picture in a lineup. During Ds interview/cataloging, D has no reason to believe he was not free to leave or terminate the interview, no unlawful seizure by PO. Factors:

1. PO engaging in ‘normal practice’2. D not ordered to answer questions3. In public4. No indication of physical distress5. D never asked to leave

v. Trott – D on street @ 330 am w/ woman’s bicycle and lots of goods. PO asks what he was doing with the stuff. Court notes that cooperation with PO does not per se mean D didn’t think he was free to leave and not answer the questions.

vi. State in Interest of J.G. – PO approached D @ train station and said “is there anything on you I should know about or that you shouldn’t have?” was a presupposition of criminal activity which turned the inquiry into a Terry stop detention requiring articulable RS (which PO did not have). Field inquiry becomes a Terry stop upon unsupported outright accusations of criminal activity (thus requiring RS).

vii. Hart – Person saying he didn’t feel free to leave isn’t the same thing as whether a reasonable person would. Other factors:

1. D walked away from PO w/o interference2. No indication that Ds compliance with POs requests was

mandatory3. Courteous tone and language of PO

viii. Affsprung – When D is asked for identification by PO, that is a seizure b/c few people would feel free to ignore POs request for ID or feel free to leave after refusing to give ID or even after giving it. So in a normal traffic stop when PO asks for ID of driver and/or passengers, there is a seizure.

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ix. Burton – If PO stops D without RS, he cannot seize him. Thus without RS, PO cannot do a Terry stop b/c a Terry stop requires RS.

x. Frohriep – “Knock and talk” is not a seizure. PO can approach anyone without RS and ask them questions/talk to them. Test is whether reasonable person in that circumstance would feel free to end the encounter. When PO simply shows up on doorstep and asks for consent to search (without additional facts) there is no seizure b/c D reasonably would have felt free to terminate the encounter.

xi. Chesternut – D walking , sees PO car, runs. PO car follows D to see where he’s going, D drops a lot of stuff from his pockets. D seized? No b/c PO conduct was not ‘so intimidating’ such that a reasonable person would not feel that he could go about his business and ignore PO. Factors:

1. PO did not command D to stop2. PO did not flash sirens/lights3. PO did not block Ds freedom of movement4. Intimidation factor (here there was not enough)

xii. Hodari D. – POs saw D run upon seeing POs. POs ran after D and cut him off. PO almost upon D and D threw away drugs. Right after throwing away drugs, PO tackled and arrested D. Court says even if PO’s actions would cause a reasonable person to believe he was not free to leave, no seizure occurred before the officer tackled D b/c D did not stop . No seizure when PO yells “Stop in the name of the law!” and D continues to flee. Only when PO put hands on fleeing D was there a seizure. Therefore, Ds decision to throw drug was not caused by a “seizure” (D hadn’t yet been seized), so no FRUIT.

xiii. Letsinger – PO told D they were going to seize his bag and then before they actually seized it D said there was pot in it. When PO says “I will seize your bag” there is no actual seizure until he actually takes the bag –aka D relinquishes control of it. Since D said there was pot in it before the seizure, PO then had RS (actually even PC, which is more than they needed) to believe drugs were in the bag. (Only need RS to seize, PC to search except for limited patdown for weapons which only requires RS)

xiv. Raysor – D and PO having casual convo then PO sees calluses on Ds hand and suspects him of crack use. PO reads D his Miranda rights. Reading Miranda rights = seizure b/c a person who has been read his Miranda rights would reasonably assume that he is not free to leave (b/c Miranda associated w/ custodial interrogation in which D is not free to leave).

j. Sharpe k. Note Cases

i. Bravo –ii. Mimms –

iii. Wilson –iv. Smith –v. Hiibel –

vi. Jenkins –vii. Morgan –

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l. Williams VII. Search of Home

a.VIII. Car and Container Searches

a.IX. Consent Searches

a.X. Miranda Warnings

a.XI. Miranda Waiver

a.XII. Due Process Limits

a.XIII. Fruit of the Poisonous Tree

a.

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