When Does the Fourth Amendment Apply There are two requirements that must be met before the

Fourth Amendment will be applicable in a particular situation. The first, is that the conduct in question must be governmental, not private. The second is that the conduct must constitute a search. Governmental Action o Where a private individual acts at the direction of a government agent or pursuant to an official policy, the search implicates the Fourth Amendment. o Two factors are considered in determining whether the private party is acting as an instrument of the state 1) The degree of government encouragement, knowledge, and or acquiescence with regard to the private actors conduct 2) The purpose underlying the private partys action was he pursuing a governmental interest or did he act to promote his own personal or business objectives. Reasonable Expectation of Privacy o The Fourth Amendment applies only where 1) The citizen has manifested a subjective expectation of privacy and 2) that expectation is one that society (through the courts) accepts as objectively reasonable. Physical Setting, Vantage Point, and Enhancement Devices o Open fields do not provide the setting for those intimate activities that the amendment is intended to shelter from government interference or surveillance o Where police observations are made from a location to which the public has lawful access (from air or ground) the viewing of otherwise protected areas may not implicate the Fourth Amendment. Where, however, police must physically enter the area to make their observations, a search has likely taken place. Probable Cause The Standard for Search and Arrest Probable cause is defined as the quantity of facts and circumstances within the police officers knowledge that would warrant a reasonable person to conclude that the individual in question has committed a crime or that specific items related to criminal activity will be found at a particular place. o An adequate showing of probable cause requires specific and concrete facts, not merely conclusory speculations. o *Because items relating to crime are often readily transportable, probable cause to search must include a likelihood that the items sought are presently at the place to be searched. Timeliness of the information relied upon by police is more important there than it is on the context of an arrest where probable cause generally does not dissipate with time. When weighing probable cause, courts focus on the source of the information in the possession of the police as well as the conclusions that may be reasonably drawn from it. If the information is based on the officers own observation, credibility is usually presumed. If however, the officer has obtained information fro ma third party, the reliability of that source must be weighed together with the accuracy of the inferences drawn. Reasonable Suspicion The Standard for Stop and Frisk Police routinely stop citizens on the street or pull them over in their automobiles in order to question them briefly or to enforce traffic laws. If probable cause were required in these situations such investigative stops would be impermissible in most cases. Officer must be prepared to articulate the specific facts giving rise to reasonable suspicion that criminal activity may have been afoot. Because the additional step of patting down or frisking constitutes a further intrusion, it requires additional justification reasonable suspicion that the suspect may be armed and dangerous. o The scope of this protective search is limited by the exigencies that justify its initiation and is therefore restricted to that which is necessary to discover weapons usually an initial pat down 1

of the suspects clothing followed by a reach into pockets or hidden areas if (and only if) the pat down reveals the likelihood of a weapon. Reasonable suspicion is considerably less than proof by preponderance of the evidence but considerably more than an inchoate and unparticularized suspicion or hunch. o In making the determination, due regard is granted to the officers unique experience and training. What Constitutes a Stop Not all personal intercourse between policemen and citizens involve seizures of persons. The Fourth Amendment is implicated only when the officer by means of physical force or show of authority has in some way restrained the liberty of the subject. o A person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not actually attempt to leave, would the the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, or the use of language or tone of voice indicating that compliance with the officers request might be compelled. Together with duration, courts weigh the degree of intrusion and the amount of force used on the subject in determining whether a stop has crossed the boundary and become the equivalent of an arrest. However, the amount of time is not determinative for example in one case officers followed two individuals in a vehicle suspected of drug trafficking but were only able to stop one. The first driver was detained for a period of 40 minutes which was the time to overtake the second driver and return him to the location of the first vehicle. If police merely question an individual on the street without detaining her against her will, the Fourth Amendment is not implicated. At the point at which a reasonable person would believe she is no longer free to leave and is being detained, a stop has occurred and the Fourth Amendment is triggered, requiring that officer to have reasonable suspicion that criminal activity is afoot. To support the additional intrusion of a pat-down frisk, the officer must have reasonable suspicion that the subject is armed and dangerous. Finally, if the nature and duration of the detention rise to the level of a full-scale arrest or its equivalent, probable cause must be shown. Expansion of Terry (Demand for ID, Motor Vehicle, Protective Sweeps and Plain Feel A demand for identification from the subject is now deemed proper, as a request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop An officer may stop a vehicle and briefly detain the motorist where the officer has at least articulable and reasonable suspicion that he is violating the law, including motor vehicle infractions. The stop encompasses the authority to order the driver and passengers out of the car and a dog sniff is permitted as long as getting the dog to the scene does not prolong the otherwise justifiable stop. o If the officer has reason to believe that the driver or occupant is armed and dangerous, then the officer may frisk and also conduct a limited search of the interior of the car immediately within the subjects control. Such a such is permissible even where the suspect is being held outside the car because the possibility he may break way or have access to weapons in the car after he is released. Requirements of Terry with regard to automobile stops. (1) The detention must be lawful and (2) the officer must reasonably suspect that the person stopped is armed and dangerous. The scope of the vehicle stop extends until such time as the officer no longer needs to control the scene and informs the driver that he is free to leave. o Reasonable suspicion that a package or piece of luggage contains contraband or evidence of a crime may be held to justify its temporary seizure. Applying the terry balancing test, the SC has held that where reasonable suspicion exists, the governmental interest in briefly detaining such personal effects outweighs the minimal intrusion to the owner. As with stops of the person these 2

must be limited in both time and scope. The Components of a Valid Search Warrant The basic purpose served by the warrant process is to interpose a disinterested magistrate between the police and the individual they seek to search or seize. o 1) It must be issued by a neutral and detached magistrate o 2) There must be presented to the magistrate an adequate showing of probable cause supported by oath or affirmation. o 3) The warrant must describe with particularity the place to be searched and the items or persons to be seized 1) Neutral and Detached Magistrate: o Neutral and Detached and Capable of determining whether probable cause exists for the requested search and arrest. 2) The Probable Cause Showing o A court subsequently reviewing the issuance of a warrant to determine whether probable cause existed will limit its focus to the information that was presented to the magistrate at the time. Challenges take two forms (1) Assertion that the probable cause showing was inadequate on its face Evidence seized pursuant to a search warrant issued on an inadequate demonstration of PC will be suppressed only if the affidavit is so lacking in indivia of probable cause as to render belief in its existence entirely unreasonable (2) Disputes the truthfulness of the facts set out of the affidavit First he must make a substantial preliminary showing that the affidavit contains (1) A false statement (2) made by the affiant police officer (3) either knowingly and intentionally or with reckless disregard for the truth. o Neither inadvertent nor negligent misstatements of the officer, nor false statements of informers or other sources, are sufficient to satisfy this threshold requirement Second, it must be demonstrated that the false statement was necessary to the finding of PC. A defendant who succeeds at making this showing is then entitled to a full evidentiary hearing (with witnesses and documentary evidence) in which he must prove (by preponderance of the evidence) that the affidavit contained a knowing or reckless falsehood. If he establishes this, the judge excises the false statements from the affidavit and determines whether the remainder makes out PC to search. If it does not then the search conducted pursuant to the warrant was unlawful. 3) The particularity requirement and the plain view doctrine o The fourth amendment requires that warrants shall issue particularly describing the place to be searched and the person or things to be seized. The standard of particularity regarding the place to be searched requires the description be sufficiently precise so that the officer executing the warrant can with reasonable effort ascertain and identify the place intended The standard of particularity regarding the items to be seized requires that the description leave nothing to the discretion of the officers. Thus where the description requires the executing officers to interpret a statute or legal concept to determine which items may be seized, the particularity requirement is violated. Where, however, the items are not readily identifiable as contraband, the courts have permitted generic descriptions. Warrantless Searches and Seizures (1) The Emergency Exception 3

o The prerequisites for a warrantless search or arrest under the emergency exception are (1) The circumstances presented the police with a sufficiently compelling urgency, making resort to the warrant process both impracticable and risky; and (2) The police had justification amounting to probable cause to believe that items relating to crime would be found (in the case of a search) or that the suspect had committed a crime (in the case of an arrest) o The exigencies of a hot pursuit are not on their own sufficient to fit a case within the emergency exception. The police must also have probable cause to believe that the subject has just committed a crime and that he is in the particular dwelling. The police themselves need not have witnessed the crime or the perpetrators flight, probable cause may be based on other reliable sources (Two cab drivers witnessed an armed robbery and followed the perpetrator to a particular house and called police (Warden v. Hayden)) Warrantless entry into a dwelling may not be permissible even under exigent circumstances where the suspect is sought for a minor crime. The gravity of the crime and the likelihood that the suspect is armed must be considered as factors in assessing the urgency of the situation. In Olson although a grave crime had been committed, Olson was only suspected of being a driver, not the murderer. Further, police ha already recovered the murder weapon and there was no suggestion of danger to anyone in the building. Police also had the building surrounded and the suspect could not have escaped. o The scope of the permissible search is strictly limited by the exigencies upon which it is based. Thus, the hot pursuit intrusion into a dwelling is limited only to those areas where the suspect or weapons may be hidden. It is not a general search. Two-hour search that was the scene of a murder and suicide attempt was ruled unlawful because the victims had already been removed and the area secured. Warrantless entry into a burning dwelling for the purpose of determining the source of the fire and extinguishing it is permitted, once the origin of the fire is discovered and is brought under control, the authorities must obtain a warrant to conduct a further investigation. o Where police anticipate that incriminating evidence at a particular location may be destroyed or removed but do not have a justification for a warrantless emergency search they may Secure the premises to prevent persons from entering while obtaining a warrant o Standard: The police must be faced with circumstances that would cause a reasonable person to believe that entry was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts. The exigencies must be viewed from the totality of the facts known to the officers at the time of the intrusion. Examples o Although there is no hot pursuit from the scene of the crime, the police may chase the suspect into his home without a warrant when they attempt to effect a lawful arrest in a public place but are unsuccessful because the suspect retreats inside. A suspect may not defeat an arrest set in motion by escaping to a private place. o Probable cause is a necessary, but not sufficient condition to conduct a lawful search of a home. Thus although the agents had PC to believe that criminal activity was occurring in the house and that evidence of such activity was present, the Fourth Amendment requires that a magistrate weigh the justification and authorize entry and prescribe the contours of a permissible search. To circumvent the warrant process, the exigencies must be sufficiently compelling to fit within the emergency exception. In approaching the fact-specific determination of whether the emergency exception 4

applies, courts have considered the following factors: 1) The degree of urgency, taking into account the amount of time needed to obtain a warrant 2) The reasonableness of the belief that the contraband was about to be destroyed or removed 3) The possibility of danger to the police who are watching the location 4) Common behavioral characteristics of persons involved in criminal activity (big time drug dealers are presumed to be armed) 5) Any indication that the suspects were aware that police are on their trial 6) Whether the emergency arose from the action of the police themselves *The presence of drugs alone does not give rise to exigent circumstances to justify a warrantless entry and search. The exigency relied upon to excuse failure to obtain a warrant must arise in the natural course and not be the result of deliberate police action. Police cannot justify a warrantless search on the basis of exigent circumstances of its own making. o 1) Police were not aware of the destination of the package until it was actually delivered; the destination was the home of a suspected drug dealer likely to be suspicious of tampering with the package and the narcotics in the package could be quickly and easily destroyed If the police had information tying the package to the particular location prior to the delivery, the excuse for circumventing the warrant process would no longer exist. Crime Road Blocks, Investigatory Road Blocks Do we have a seizure and where was the seizure o Once they put the roadblock in place and you are under orders if you enter that neighborhood you have to stop, you have a seizure. It is still intrusive even though it is not the biggest seizure. o What kind of seizure Was it an arrest? No Temproary investigatory detention What is missing for terry No individualized suspicion o Takes us to the other kinds of seizures and exceptions Public Safety, community caretaking, balancing of interests, public buildings, courthouses, hospitals, OUI roadblocks, closely regulated industries Is there a great public interest in solving these crimes? Two missing women, perpetrator yes there is What is the level of intrusion minimum Can you do this even though the primary purpose is to catch someone, is there some justification to do this that you can articulate How can you articulate that there is something beyond just evidence gathering and crime enforcement Safety, to avoid anyone else beign kidnapped and murderered, want to stop this from happening Problem is that it is indistinguishable Cant be too much general crime enforcement, but is there exigent o What is it that makes this a little different than just general crime enforcement, crime gathering evidence Administrative Searches Searches not related to criminal investigation however are judged against an open ended test of reasonableness that has produced a form of justification 5

However this search would not be measured by traditional standards. The primary impetus for airports screening is concern for the safety of passengers and crew, not criminal protection. The standards for evaluating this search is the standard used in administrative search cases which state searches conducted pursuant to a general regulatory scheme rather than pursuant to a criminal investigation do not require individualized cause directed at the particular person or place to be searched. o What standards apply? As a threshold matter, the inspection must not be subterfuge for a search seeking evidence of a crime. If a building code inspector is sent into Smiths apartment at the instigation of the police to search for contraband, that search could not be characterized as administrative and the traditional requirement for particularized cause would apply. The basic test of an administrative search scheme is derived from the Fourth Amendment standard of reasonableness. It must appear on balance that the government need to search outweighs the intrusion, or the privacy interests implicated by the search are minimal and where an important government interest furthered by intrusion would be placed in jeopardy by a requirement of individualized suspicion. o There must be an assurance of evenhandedness in the inspection process. That is, the decision as to who will be screened and the scope of the search cannot be left to the discretion of the officer. Objective standardized criteria must control throughout the process. As a general rule, motorists can be stopped only if there is specific justification in the form of reasonable suspicion or probable cause to believe the driver or occupants are in violation of the law. o Magnitude of the governmental interest in eradicating the drunk driving problem against the slight intrusion to motorists stopped briefly at the fixed checkpoints o Evenhandedness was assured because the locations of the checkpoints were chosen pursuant to written guidelines and the police were directed to stop every approaching vehicle. Roving Patrols: Unlike roving patrols, at traffic checkpoints the motorist can see the other vehicles are beign stopped, he can see visible signs of the officers authority and he is much less likely to be frightened by the intrusion There would have to be specific guidlelines in determining who was stopped and what procedures they would be subjected to. Drug intersection checkpoints are primarily directed at searching for evidence of crime. Consequently, such programs do not fit the administrative search rationale. Search and Curtillage- A search has occurred here because the officer physically entered the protected curtilage of the home in order to make her observations. The factors the Supreme Court has used include the proximity to the home, within an enclosure surrounding the home, used for intimate activities, and whether the person has taken steps to protect the privacy of the area. o Although he is protected against observations from ground level, his property may be subjected to an above ground view from a publicly accessible location without implicating the Fourth Amendment. Thus, the observations made by the officer could be lawfully used to establish probable cause for the issuance of a search warrant to enter the premises and seize plants. Does public have general access? Fruit of the Poisonous Tree Doctrine o The exclusionary rule applies not only to evidence obtained as a direct result of a constitutional violation, but also to evidence indirectly derived from the violation. Courts trace the chain of events from the initial violation to both its primary and secondary products. If police conduct an unlawful search of X, the book they seize from him is inadmissible. Evidence derived from that book is tainted as fruits of the poisonous tree and also subject to suppression. Courts weigh a number of factors in assessing whether the poison of a constitutional violation has been purged. o 1) The time period between the illegality and the acquisition of the secondary evidence: the longer the period, the more likely attenuation will be found. 6

o 2) The occurrence of intervening events: The more links in the chain between the illegality and the secondary evidence, the more attenuated the connection. Events representing an individuals free choice such as Wong Suns decision to make a statement or consent to a search, are likely to be viewed as breaking the connection. Similarly, Miranda is seen as an intervening event in the analysis o 3) The flagrancy of the initial violation: The more deliberate and flagrant the constitutional violation, the more reason there is to suppress all evidence that can be traced back to the illegality. Conversely, when the violation is unintentional and minor, the necessity for deterrence of future misconduct is less compelling. For any illegality identified in a given fact situation, the analytical task is to trace its ripple effects. With regard to each item of evidence that is casually connected to the illegality, it must be determined o 1) Whether the chain has become too long or otherwise attenuated so it can be said that the taint has dissipated o 2) Whether the police secured the evidence through an independent source o 3) Whether the police would have inevitably secured the evidence through other means If the answer to each of those questions is no, then the derivative evidence doctrine applies an the evidence will be suppressed as fruit of the poisonous tree. Good Faith Exception: The good faith exception does not apply and thus exclusionary remedy remains available in the following cases: o 1) Where the police misled (either deliberately or in reckless disregard of the truth) the magistrate in their application for the warrant o 2) Where the warrant was so obviously invalid (either bc there was no PC or it fails to particularize the place to be searched or things to be seized) that no officer could reasonably rely on it. o 3) Where the magistrate has abandoned his neutral and detached posture. Where it is determined that the warrant was defective because probable cause was lacking or the particularity requirement was not complied with, it is now necessary to assess the good faith issue o Despite the defects, were the searching officers acting reasonably in relying upon the warrant? o Was their mistake a reasonable one (measured against reasonably well-trained officer) Automobile Search and the Container Doctrine o The lawful arrest of the driver permits the officers to search the cars passenger compartment, but not the trunk, incident to the arrest. To fit within the automobile exception, which would permit search of any part of the car where the items sought might be found, officers need probable cause to believe contraband or evidence of crime will be found within. Administrative: In determining whether a particular industry is pervasively regulated and thus subject to warrantless searches under a statutory scheme, the Court looks to the history of regulation in the industry as well as the hazardous nature of the enterprise. Waiver of Fourth Amendment Analysis o A waiver of Fourth Amendment rights need not be knowing and intelligent. The key issue is whether the Ds agreement to search was voluntary or coerced. Volunatriness is determined on the basis of the totality of the circumstances. Given his age and level of education, the D faces an uphill battle in persuading the court that his conent was compelled. o Live in GF: The consent to the search could operate to waive Ds Fourth Amendment rights in either of two situations 1) She shares actual common authority over the apartment with the D 2) She has apparent authority to grant permission to search.

Where the facts and surrounding circumstances known to the officer warrant a man of reasonable caution to conclude that the consenting party had authority over the premises, consent is valid even if Actual authority is absent. Any search conducted by government officials must be conducted with a search warrant or they are presumed to be unreasonable under the Fourth Amendment. Normally, or generally the search must be done with a warrant unless there is an exception, but any seizure or search has to be based on probable cause. *The first question that must be asked is whether the Fourth Amendment applies or not. There are two requirements that must be met before the Fourth Amendment will be applicable in a particular situation. The first is that the conduct in question must be governmental, not private. The second is that there has to be a search or seizure of persons, papers, houses or effects. o Looking at all the evidence and all of the circumstances, would a reasonable person not felt free to leave and go about their business. If the answer is yes, then you have a seizure and the Fourth Amendment applies. Courts have articulated a number of factors that while not exhaustive, aid in determining whether there has been a seizure. The number of law enforcement personnel Whether or not they are in uniform/badge/armed Language used by police Was there any touching If the person has been moved The more a law enforcement officer moves you or asks you to move, the les free a person will feel free to leave Where it is, what is the location Time of day/night o If the answer is yes and there has been a seizure, the next question is what kind of seizure A temporary limited investigatory detention (Terry Stop) Arrest o Arrest Can only be justified if there is probable cause to believe that the person committed a crime o Terry Stop Reasonable suspicion of criminal conduct Police cannot do a Terry stop of somebody without at least reasonable suspicion of criminal conduct A hunch/suspicion is not enough Police need articulable facts you can point to to justify the terry stop o *Roadblocks and other types use a balancing test Plan View Seizures o Two Stages: Plain View- Seizing something from a lawful location Can you do a plain view seizure of that item The Plain View Doctrine o The plain view doctrine permits an officer to make a warrantless seizure of incriminating items that he comes upon while otherwise engaged in a lawful arrest, entry or search. This doctrine does not permit a search, but only a seizure of something already discovered. There are three requirements for a lawful plain view seizure 1) The officers original intrusion is lawful 2) The item is observed while the officer is confining her activities to the permissible scope of that intrusion 3) It is immediately apparent that the item is contraband or evidence of crime, without the necessity for any further examination or search. Standing 8

o Only those who are actual victims of the alleged violation have standing to challenge it. The question of standing becomes merged with the question of whether the challenged action infringed on an interest protected by the Fourth Amendment whether this particular defendants reasonable expectation of privacy was intruded upon. Components of Miranda o Miranda required the warnings and other protective measures whenever there is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way (1) Custody o It is only in the context of custodial interrogation that the Miranda protections are triggered. The ultimate inquiry is whether there is either a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. The venue in which the interrogation occurs is not determinative, and one need not be in a police station to be in custody The fact that the questioning occurs in a police station does not however automatically make it custodial. o Oregon v. Mathiason Suspect told not under arrest but was asked questions concerning a burglary. Confessed and was then released pending a review. Warnings not required because he had come to the station voluntarily, was informed that he was not under arrest and had not been restricted in his freedom to depart. o California v. Beheler Even where the police accompany the subject to the station, questioning may be non-custodial if he goes along voluntarily and is informed that he is not under arrest. o Where there is not a formal arrest, the determinative question is whether a reasonable person (given the totality of the circumstances) would have felt at liberty to terminate the interrogation and leave. o The actual intention of the officer to detain the suspect and take him into custody is irrelevant to the custody issue unless the intention is communicated to the suspect. Standard is an objective one based on the suspects perceptions, and the determinative question is how a reasonable person in his position would have understood the situation. Factors: Location of the interrogation (familiar or unfamiliar), the duration, and the persons present (just law enforcement personnel) Examples o General on the scene questioning as to facts surrounding a crime is not regarded as custodial in nature. Custody only attaches where the subject reasonably believes that his freedom to depart has been curtailed by the police. But if the brief stop grows into something of longer duration or the police escalate the restraint (drawing gun or placing him in a cruiser) he will likely be entitled to Miranda protections. o If the police provide Miranda warnings when they do not have to (no custodial setting) does not mean that it converts a legally non-custodial situation into custody because the Miranda protections are to protect a citizen from coercive effects of police custody o Factors: Whether the suspect was informed that he was free to leave Possessed unrestrained freedom of movement during questioning Initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions Whether police used strong-arm tactics or deceptive strategies Whether the atmosphere of the questioning was police-dominated 9

Whether the suspect was arrested at the end of questioning (2) Interrogation o The Miranda protections are triggered by interrogation of a subject (who must be in custody). Questioning initiated by law-enforcement officers Statements volunteered with no such questioning are not covered. The police are not required to interrupt a person who is about to blurt out a confession and inform him of his right to silence and an attorney. o Function Equivalent Any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect o Interrogation encompasses conduct deliberately designed to evoke a confession as well as conduct the officers should reasonably have foreseen would elicit such a response. Particular susceptibilities of the suspect and the knowledge the officers had of these at the time. o Routine background questions regarding the suspects name, address, and related matters are not considered within the Miranda protections because they are not investigatory, do not involve psychological intimidation and are not likely to elicit an incriminating response. (3) Waiver of Miranda Rights o The question of voluntariness of a waiver of Miranda rights is separate and differs from the determination of voluntariness of a confession. Once it is clear that a defendant has made a knowing and voluntary waiver of his rights, the issue then becomes whether the confession itself was voluntary. o A statement may be used at trial only if the prosecution demonstrates that the suspect knowingly, intelligently and voluntarily waived his privilege against self-incrimination and right to counsel. o Whether express or implied, a waiver must be shown to have been knowing, intelligent, and voluntary in order to be valid. Knowing and Intelligent Focus on whether the waiver was made with an awareness of the rights being abandoned and the consequences of doing so. Voluntary Requires a determination of whether the waiver was the product of a free and deliberate choice rather than intimidation, coercion or deception. o Knowing and Intelligent Must be shown that (1) the suspect understood that he had the right not to talk to the police or to talk only with counsel present, and (2) that he appreciated the consequences of foregoing these rights and speaking to the police. Attorney trying to speak to client Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. o Voluntary The voluntariness of a waiver of this privilege has always depended on the absence of police overreaching, not on free choice in any broader sense of the word. To invalidate a waiver as involuntary it must be demonstrated that the waiver resulted from police coercion that overcame the suspects will. If the accused was subjected to compulsion such as intimidation of threats, then the impact of those tactics will be examined in light of the totality of the circumstances surrounding the interrogation (age, mental state, experience, and intelligence) Traffic Stops (1) Cannot search incident to citation -- Knowles v. Iowa, p. 233 Knowles stopped for speeding (going 43 in 25), issued a citation, then the officer decides to search the car and finds a bag of marijuana hidden under the seat. The police officer conceded that neither Knowles conceded neither did he have PC to conduct the search. Statute allows for search after citation. Issue: Does statute allowing for 10

search after citation w/out PC violate the 4th? HELD: Yes. Application Robinson gives two rationales for the search incident to arrest exception: (1) safety, i.e. disarm the suspect and take him into custody and (2) preserve the evidence (bright-line rule). Here not much concern for officers safety, not at all concern for destruction of evidence. Rule: Cannot search incident to a citation. (2) Removal of Driver and Passenger from Stopped Vehicle: Conversing with a driver while standing exposed to traffic creates a risk of injury to the officer. On the other hand, given the fact that the motorist had already been stopped, the additional intrusion involved in requiring the motorist to get out of the car is minimum. Once the officer had observed the bulge, Terry justified the officers further action. o Passengers removal furthers the same legitimate need for officer safety. The fact that there is more than one occupant of the vehicle increases the possible sources of harm to the officer. That the persons involved are passengers rather than drivers does not significantly reduce the risk. There is however a weaker case for removal of passengers than drivers. Although there is no PC to believe the driver has committed an offense, there is no similar basis for stopping or detaining passengers. As a practical matter, the passengers are already stopped by virtue of the stop of the vhiecle. The only change in their circumstances which will result from ordering them out of the car is that they will be outside of, rather than inside of the stopped car. The additional intrusion is minimal. o If the officers have reasonable suspicion that the person patted down (passenger) may be armed and dangerous then patdown weapon frisks of passengers are permissible. Race Related Issues in the Use of Traffic Stops

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