Criminal Procedure Outline

In God I Trust.

The Idea of Due Process o Constitutional Decision Making Duncan v. Louisiana Facts: convicted for simple battery without a jury trial. Simple battery carried a prison sentence not more than 2 years. Holding: The right to jury applies to states through the 14th Amendment because this right is fundamental to the American scheme of justice. The jury system works to protect s from overzealous prosecutors and biased or eccentric judges and also serves an accuracy function. The court doesnt adopt total incorporation because that leads to problems with federalism. But court admits that there is a category of petty offenses which is not subject to 6th Amendment protection Right to Counsel at Trial and on Appeal (Court trying to bring s on equal footing with the state) o 6th Amendment: In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense. o Right to Trial Counsel Powell v. Alabama Supreme Court held that indigent s have a constitutional right to an appointed lawyer in capital crimes cases and where a is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy or the like. The court based its decision not on the 6th Amendment but on the fact that in such cases, the absence of counsel was so prejudicial to the s as to have rendered the trial fundamentally unfair. Betts v. Brady Court refused to apply the 6th Amendment right to appointed counsel to state trials. According to the court, the 6th Amendment does not embody an inexorable command that no trail for any offense, or in any court, can be fairly conducted and justice accorded a who is not represented by counsel. Gideon v. Wainwright

Facts: sentenced to 5 years prison for robbery of a poolroom. requested counsel but court denied despite the fact that was indigent. Holding: Court ruled that in our adversary system, any person haled into court who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. Therefore, 6th amendment which is incorporated through 14th Amendment entitles indigent s to right to counsel at least in felony cases. Argersinger v. Hamlin Court held that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified a petty, misdemeanor, or felony, unless he was represented by counsel at his trial. The legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more. So after Argersinger, Judge has to decide whether will be going to prison or not. Scott v. Illinois Facts: convicted of theft and fined $50. argued that since his crime could have led to 1 year of jail, he had to right to a counsel underArgersinger. Holding: Argersinger applies to cases where there is actual imprisonment involved. The court held that 6th and 14th Amendments to the Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the state has afforded him the right to assistance of counsel. Adopting s view will place too much burden on the 50 states. Nicholas v. US Facts: convicted for DUI in 1983 and fine, but no counsel. In 1990, convicted on federal drug charges and in sentencing phase, judge considered the DUI conviction and increased sentence by 2 years. Holding: Uncounseled convictions can be used to enhance sentences for subsequent crimes. o Counsel on Appeal Griffin v. Illinois Transcript was required for appeal and the SC held that in such situations, the state must provide free transcript for trial

proceedings. According to the Court, even though the state is not required to have an appellate system or a right to appellate review at all, but once the state creates such system, it must provide equal justice to all. Douglas v. California SC held that state must appoint a counsel in the first appeal of right. According to the Court, where the merits of the one and only appeal an indigent has as of right are decided without the benefit of counsel, we think an unconstitutional line has been drawn between rich and poor. Court used two possible justifications: equal protection and due process. Ross v. Moffitt SC held that an indigent does not have a right to appointed counsel on his applications for discretionary review by the state supreme court or on his petition for certiorari to the USSC. According to the Court, discretionary appeals are accepted or rejected usually on the basis not of the likelihood that the original determination of guilt was wrong, but on the importance of legal issues involved. Also, already has the briefs written by his counsel form the first appeal. Equal protection does not require absolute equality. Evitts v. Lucey Where has right to counsel on appeal, the assistance must be effective. In this case, s appointed counsels failure to file a required statement of appeal leading to dismissal of the appeal so clearly deprived him of effective assistance that he was entitled to a new trial. o Effective assistance of counsel Strickland v. Washington A whose lawyer has actually participated in trial must establish 2 prongs in order to sustain 6th Amendment claim: o That counsels performance was deficient in the sense that counsel was not a reasonably competent attorney; and This prong is really hard to prove because must identify with precision the acts or omissions that he claims were unconstitutionally unreasonable. Also, ct. must see through the eyes of the lawyer at the time action taken. o That the deficiencies in counsels performance were prejudicial to the defense, in the sense that there is a

reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. Strong presumption is given that the lawyers conduct was appropriate. No set guidelines to show that lawyer was incompetent. Hill v. LockhartIn guilty plea cases, in order to satisfy the prejudice requirement, must show that there is a reasonably probability that, but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial. o Self-Representation Faretta v. California SC held that 6th Amendment guarantees the right of a defendant to represent himself without counsel. The 6th Amendment rights are personal to the accused and not to his counsel. Therefore, a can knowingly and intelligently waive his right to appointed counsel. McKaskle v. Wiggins A defendants 6th Amendment rights are not violated when a trial judge appoints a standby counsel- even over the defendants objection- to relieve the judge of the need to explain and enforce basic rules of courtroom. But defendant has to maintain the actual control over the presentation of his own defense at all times. The right to self-representation is not violated unless standby counsel substantially interferes with significant tactical decisions of the defendant, controls the questioning of witnesses, speaks in s place against her wishes on matters of importance , or in some other way destroys the jurys perception that the is representing herself. Anders v. California- an attorney who wishes to withdraw from a case after conviction on the grounds that an appeal would be wholly frivolous may request permission to do so but must file a brief referring to anything in the record that might support an appeal. Jones v. Barnes- Counsel doesnt have to raise every single issue on appeal that the client wants to raise. Martinez v. Court of Appeal of California- does not have a constitutional right to dispense with the assistance of counsel on appeal. o Critical Stages of the Proceedings

SC has held that the right to counsel applies at every critical stage of a criminal prosecution. Leads to 2 questions: what is criminal prosecution, and what is critical stage. Criminal Prosecution begins for purposes of right to counsel when adversary judicial proceedings have been initiated and it continues throughout the sentencing process. Eyewitness identification procedures A person has a 6th Amendment constitutional right to counsel at any corporeal identification procedure conducted after, but not before, she has been indicted or equivalent adversary judicial criminal proceedings have commenced against her. If no counsel provided at post-indictment lineup, cant produce evidence or testify. Also, prosecutor is prohibited from obtaining an in-court identification of the accused by the witness, unless the prosecutor proves by clear and convincing evidence that the in-court identification is not a fruit of the tainted out-of-court procedure. US v. Wade o Ct. said that a person is entitled to counsel at all critical stages of a criminal proceeding. Defined critical stage as any stage of the prosecution, formal or informal, in court or out, where counsels absence might derogate from the accuseds right to a fair trial. A post-indictment identification is critical stage because the process is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. o The court expressed the concern for the unreliability of eyewitness identification and the fact that it is seldom possible for defense attorneys if absent, to reconstruct the procedure in order to show the unfairness of the process. Kirby v. Illinois o Ct. refused to extend the 6th Amendment right to oneon-one pre-indictment confrontation. Non-corporeal Identifications United States v. Ash o Ct. held that a person against whom adversary judicial proceedings have been initiated is not entitled to the presence of counsel when the police display photographs. Defense attorney can reconstruct

Due process requires exclusion at trial identification was 1. unnecessarily suggestive and 2. conductive to mistaken identification. This right applies to corporeal, non-corporeal, pre & post indictment. Rise & Fall of Boyd o This area covers the historical development relating the 4th and 5th Amendments. o 4th Amendment- The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures 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. o 5th Amendment- no person shall be compelled in any criminal case to be a witness against himself o Boyd v. United States An order of the District Court required the claimants to produce the invoice of the some disputed item in a suite for forfeiture. Holding: A compulsory production of a mans private papers to establish a criminal charge against him, or to forfeit his property, is within the scope of the 4th Amendment in all cases in which a search and seizure would be; because it is a material ingredient, and effects the sole object and purpose of search and seizure. o Gouled v. United States Court ruled that search warrants may not be used as a means of gaining access to a mans house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding, but that they may be resorted to only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized. o Mere Evidence Rule: police can only seize: 1. a fruit of a crime, 2. an instrumentality of a crime, 3. contraband. This rule was based on property rights and said that in these three instances, governments interest outweighed the property interest of the . o Warden v. Hayden- SC abolished the mere evidence rule. Nothing in the nature of property seized as mere evidence is more private than other types of property. Same item that constitutes evidence in one case might be a fruit or instrumentality in another. th II. The 4 Amendment

The right of 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. 4th Amendment Checklist o Does D have standing to raise a 4th Amendment challenge to the specific item of evidence in question? o Did the police activity in question implicate a person, house, paper or effect? o Did the police activity constitute a search and/or seizure? o Was the search and/or seizure reasonable or unreasonable? Did the police have adequate grounds to conduct the search and/or seizure? Did the police act on the basis of a search warrant and/or arrest warrant? o If yes to previous question, then ask: Did the police conduct the search and/or seizure on the basis of a warrant later declared to be invalid? If yes, then consider good-faith exception. Is there evidence that is a fruit of the poisonous tree? If yes, fruits of poisonous tree inadmissible subject to two exceptions: the inevitable discovery doctrine, and the attenuated-connection doctrine. The Exclusionary Rule o Weeks v. United States- Court held that in federal trials, the 4th Amendment bars the use of evidence unconstitutionally seized. o Wolf v. Colorado- Court held that 4th Amendment protections are basic to a free society and therefore applicable to the states. But according to the Court, the states dont have to adopt the exclusionary rule because that is a judicial invention. o Mapp v. Ohio Facts: officer forcibly entered s house in order to search for a bombing suspect. Didnt have warrant. Didnt find suspect but found obscene material which was used as evidence in s conviction. Holding: The 4th Amendment exclusionary rule applies to state criminal trials. Exclusionary rule is a constitutional requirement and to hold otherwise, would be to grant the right to be free from unreasonable searches and seizures but without its privilege and enjoyment.

o Justifications for the exclusionary rule: Deter police officers from engaging in unconstitutional conduct Second justification is the imperative of judicial integrity (now this justification has all but disappeared) The Meaning of Searches and Seizures o Search 4th Amendment prohibits against unreasonable searches. Search has 2 historical phases- pre-1967 and post-1967 Pre-1967 The justices generally treated 4th Amendment issues as a property-focused inquiry Boyd v. U.S.- It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the 4th Amendment offence; but it is the invasion o fhis indefeasible right of personal security, personal liberty, and private property So in order to violate 4th Amendment, physical intrusion necessary! Post-1967 Katz v. United States- According to the Court, the 4th Amendment protects people not places. Justice Harlans Concurring opinion: 1. the individual must have exhibited an actual expectation of privacy, and 2. the expectation he exhibited must be one that society is prepared to recognize as reasonable. After Katz, the Court has focused on the Objective part of the test. Court has usually considered 3 factors when applying the objective test: 1. the nature of the property, 2. the extent to which a person has taken measures to keep information, her property or an activity private, 3. degree of intrusion experienced by the police activity False Friends Technique o United States v. White- a person does not have a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police. Justices tolerance of this investigative technique is likelfounded on their pragmatic recognition of the fact that the use of false friends is essential to the detection of otherwise inaccessible information about crime. Under White, no

difference between pure false friend and wired false friend. Open Fields Exception o Oliver v. United States- Police officer ignored no trespassing signs and crossed fences and observed marijuana which was not otherwise visible. Court said no search took place because one cannot have legitimate expectation of privacy in open fields. Open fields do not provide the setting for those intimate activities that the 4th Amendment is intended to shelter from government interference or surveillance. Furthermore, police can observe fields from a helicopter of plane. o Open field- land need to be neither open nor a field in all circumstances. Curtilage o Curtilage is the land immediately surrounding and associated wit the home. Curtilage is protected under the Amendment. o United States v. Dunn- 4 factors determine whether land curtilage: The proximity of the land to the home Whether the area is included within enclosures surrounding the house The nature of the use to which the area is put The steps taken by the resident to protect the land in question from observation. th 4 Amendment and new technology o Court has held that pen registers installed to record phone #s a person dialed not search because not recording the content of the conversation but recording very limited information (Smith v. Maryland). o United States v. Knotts- police installed beeper in a drum which bought. Police obtained the location of the drum and gained warrant. Court held that it was not search: 1. the beeper did not provide the police with any information that they could not have secured by visual surveillance from public places along s route. 2. The beeper had limited use in this case: it did not reveal information as to s movements within any private place.

o United States v. Karo- the beeper allowed the police to monitor the movement of a container inside various homes as well as public places. Court held that 4th Amendment protected against use of the beeper located inside the house. Indiscriminate monitoring of property that has been withdrawn from public view would present far too serious a threat to privacy interests in the home to escape entirely some sort of 4th Amendment oversight. o Kyllo v. United States- Use of thermal-image device aimed at a private home form a public street to detect relative mounts of heat within the home constitutes a search within the 4th Amendment. In the home, all details are intimate details, because the entire area is held safe from prying government eyes. So in home, all details are intimate and where the government uses a device that is not in general use to explore details of the home that wouldnt be visible without the intrusion, a search has occurred. Aerial Surveillance o Aerial non-sense-enhances surveillance valid if: 1. occurs from public navigable airspace, 2. is conducted in a physicallynonintrusive manner, 3. does not reveal intimate activities traditionally connected with the use of a home or curtilage. o California v. Ciraolo- Officer observed marijuana in backyard from 1000 feet in airplane. Court ruled the surveillance was not search even though curtilage. o Florida v. Riley- Court said surveillance in helicopter at the height of 400 feet not search because even though planes at this height would violate FAA rules, but not helicopters and can expect that anyone in helicopter can observe marijuana on thiscurtilage. According to the court, it would have been a different case if flying at that altitude had been contrary to law or regulation. Dog Sniffs o Supreme Court in United States v. Place held that exposure of s luggage, which was located in a public place, to a trained canine did not constitute a search. The information was secured in a comparatively nonintrusive manner, luggage was never

opened. Also, information revealed by the test was extremely limited. o In Bond v. US, the Ct. held that physical touching of luggage in a bus was search because of officers purpose. Dissent: effect and not purpose matters. California v. Greenwood o Court held that didnt have a reasonable expectation of privacy in the plaque garbage bag which was placed outside hiscurtilage.

o Seizure Unless police conduct constitutes a seizure, the 4th Amendment does not apply. If it is a seizure, then issue is whether seizure was reasonable. If seized property, then need a warrant based on probable cause, or a justification for not securing a warrant. If person, mostly must have arrest warrant. If arrest, must be supported by probable cause. If less intrusive seizures, reasonable suspicion is allowed in some circumstances. Seizure of person Terry v. Ohio o A person is seized by an officer, by means of physical force or show of authority, has in some way restrained his liberty. o Seizure in following situations When person ordered to stop so that he can be frisked or questioned When person is intentionally shot by officer Taken into custody and brought to police station for questioning or fingerprinting Ordered to pull his automobile off the highway for questioning or to receive a traffic citation Intentionally forced to stop his car by means of a roadblock (Brower v. County of Inyo) Florida v. Bostick- Inquiry is whether a reasonable person would feel fee to decline the officers requests or otherwise terminate the encounter. Subjective intent of officer-suspect not too important. Court said that Mendenhall rule that whether a reasonable person would feel free to leave is not applicable in this case because didnt feel free to leave for reasons independent of the police conduct. had his luggage in bus and that was the reason he wouldnt feel free to

leave. So the correct inquiry was whether a reasonable person would feel free to terminate the encounter. In a recent 2002 case US v. Drayton, ct. held that the consent was voluntary and no seizure even though the officers, unlike Bostick, didnt inform that he could refuse to talk to them. United States v. Mendenhall- Some factors to consider in applying the reasonable person test: 1. the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the sue of language or tone of voice indicating that compliance with the officers request might be compelled. Florida v. Royer- officers approached a passenger and asked for his drivers license and ticket. When spotted the discrepancy, they asked to accompany them to one room. Court held that the initial questioning was not seizure but the second part was seizure. The officers had s license and tickets and a reasonable person in such situation would not have felt free to leave. Factory Sweeps- Court has applied questionable reasoning in holding that factory sweeps by INS officials is not seizure. **In the reasonable person test, the Court assumes that a reasonable person is an innocent person who has nothing to hide. Police Pursuits California v. Hodari D- According to the Court, a seizure requires either physical force, or, whether that is absent, submission to the assertion of authority. E.g. O chases D and yells stop, but D keeps running No seizure, even though a reasonable person would feel that he is not free to leave. But no seizure until D actually submits to Os authority. O places his hand on D, D breaks away and runsSeizure Dissent worries that officers can just chase people without reason in the hopes of gaining some evidence to start the seizure. Probable Cause and Warrants o Probable Cause Standard For there to be probable cause to arrest a person, it must be more likely than not that a violation of the law has been committed and the person to be arrested committed the violation. For there be probable cause to search particular premises, it must be more likely than not that the specific items to be searched for are

connected with criminal activities and these items will be found in the place to be searched. Probable cause is an objective test! Subjective feelings or motivation of the officer is irrelevant. Whren v. United States- an officer had probable cause to stop to issue traffic citation for turning without signaling and for speeding. The fact that the violation was rather trivial, it is very possible that officer stopped based on s race. Court stated that a search or seizure supported by probable cause is constituonally reasonable without regard to the officers motives for the action. Informant Information Aguilar-Spinelli Two-Pronged Test o The basis-of-knowledge prong- how did the informant get the information Sometimes when basis-of-knowledge unknown, this prong can still be met under self-verifying detail. Draper v. United States- the tip described the accuseds criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor. o The veracity prong Officer must prove that the informant is reliable or that his information in the present case is reliable. Usually veracity met by showing the informants track record. o Corroboration If cant meet the 2 prongs, info can still be use if police verifies the information. Illinois v. Gates o Anonymous letter case. Court abandoned the 2 prong test of Spinelli. Even though veracity and basis-ofknowledge still very important, but not treated separately and weakness of one can be cancelled by the strength of the other. According to the Court, probable cause is a fluid nontechnical, common sense conception, based on the factual and practical considerations of everyday life on which reasonable and prudent men, not

legal technicians act. So Ct. adopted the totality-of-thecircumstances standard. Ornelas v. United States- In warrantless cases, the appellate courts will view the issue of probable cause de novo. Therefore, it will be a question of law + facts. Court adopted this rule for judicial consistency and also to provide incentive to officers to obtain warrant, because if warrant, more deferential appellate review. o Warrant Requirement Supreme Court has stated that warrant requirement is the centerpiece of the law of search and seizure, and the pre-screening by neutral and detached magistrates is the heart of citizens protection against police over-reaching. Justifications for warrant requirement: Judges might become bias after incriminating evidence is found to see if probable cause. Police officers more likely to lie after incriminating evidence is already found. Jonhson v. United States- the magistrate who issues a warrant must be neutral and detached. The court in Coolidge v. New Hampshire held that the attorney general was not such neutral and detached party. Also, the Court has invalidated the process under which the magistrate received a fee when issued a warrant and no fee when no warrant. Shadwick v. City of Tampa- Dont need a law degree to issue warrant. Franks v. Delaware- Negligent or innocent falsehoods will not invalidate a warrant. But if a can establish that the affidavit contained perjured statements or false statements made in reckless disregard of their truth, and provided the affidavits remaining content is not sufficient to establish probable cause, the search warrant will be voided and the fruits of the search will be excluded. Particularity Requirement The description should be particular enough to permit an officer with reasonable effort to ascertain and identify the place intended. Objectively reasonable mistakes in the warrant application and the execution process may be tolerated. Executing Warrants- Knock & Announce Requirement Police required to knock & announce. Wilson v. Arkansas, SC said that this rule is a constitutional requirement under the

4thAmendment. WHY: want to avoid unnecessary damage to property; protection of the police officers; want to avoid unnecessary invasions of privacy Exceptions to K&A: if evidence of crime at risk of being destroyed. Richards v. WisconsinSC said that cant create crime specific exceptions to K&A rule (e.g. drug cases) When serving a warrant in home or other such place (e.g. bar), police cant frisk others present at the place unless officers have some reasonable suspicion. It is a violation of the 4th Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant in such circumstances. Exceptions to the Warrant Requirement o Exigent Circumstances and plain view Many situations create circumstances under which it is unreasonable to expect the officer to obtain a warrant before search or arrest. Some generalizations All of the cases that fall under this exception involve emergent situations in which police act without warrant due to reasonable belief that criminal evidence will be destroyed or the suspect will avoid capture if officers take time to obtain warrant. The emergency that justifies the police action limits the appropriate scope of the search Probable cause still required! Schmerber v. California- warrantless blood test upheld because alcohol level disappears with time and in this case, probable cause and the tests were effective and proper medically. Warrant almost always required before searching a house. But 4 exceptions. Hot pursuit of a fleeing felon Imminent destruction of evidence The need to prevent a suspects escape Risk of harm to the police or others. Warden v. Hayden Hot pursuit of a robber. Robber entered a house and police entered the house and arrested him. Court upheld this warrantless entry. In this case, exigency defined the legitimate scope of the search. Could search any place where a

robber could hide and search ended when found suspect. Can also search places where can hide a weapon. Mincey v. Arizona- shots fired and officer killed. Other officers quickly went in and looked for other victims. 10 minutes later, homicide investigators searched the house without warrant and found incriminating evidence. Court ruled that the later search was unconstitutional. Although the officers in the house at the time of the homicide were entitled without a warrant to search for victims and if they had found criminal evidence during that search they could property have seized it pursuant to the plain-view doctrine, the homicide investigators who arrived ten minutes later, when emergency caretaking process was over and the criminal investigation had commenced, were not entitled to enter without a search warrant. o Plain View An object of an incriminating nature may be seized without a warrant if it is in plain view of a police officer lawfully present at the scene. 3 Elements: Lawful vantage point. Right to access to the object Right to seize is immediately apparent. Lawful Vantage Point According to the Court, an essential predicate to any valid warrantless seizure of incriminating evidence is that the officer did not violate the 4th Amendment in arriving at the place from which the evidence could be plainly viewed. 4 scenarios under which plain view validly can occur o officer may discover the article during the execution of a search warrant o during the execution of an arrest warrant o under some of the exceptions to 4th Amendment o where no search under 4th Amendment Right to access to the object o An officer must have a lawful access to the object itself. E.g. O walking on the street and observes marijuana in Ds living room. Even though the officer has lawful vantage point, but he just cant enter the home and seize the marijuana. Right to seize is immediately apparent

o A police officer may not seize an object merely because he has lawful access to it from a lawful vantage point. The seizure of an article is legitimate only where it is immediately apparent to the police that they have evidence before them. Arizona v. Hicks o Police lawfully in the apartment (exigent circumstances) and O observed an expensive stereo equipment from lawful vantage point had right to access to the equipment. But the equipment only seemed out of place and officer didnt have probable cause. Officer moved the equipment to read the serial number and then determined that was stolen. Supreme Court held that the moving of the equipment was a new search which was not justified by the original exigent circumstances. So plain view doctrine inapplicable. Horton v. California o Officer obtained warrant to search for jewelry which was taken in robbery. Officer also expected to find the weapons used in the robbery, but didnt include in weapon. Sure enough, officer found weapons in the area legally provided by the warrant. Court took away the inadvertency requirement of Coolidge because it didnt provide any additional protection to privacy. NOTE: if officer had found jewelry first, then the search would have ended there and then! Court has expanded the plain view doctrine to plain hearing and plain smell Plain touch doctrine: o Police may seize contraband detected solely through an officers sense of tough if the officer had a right to touch the object in question and upon tactile observation, its identity as contraband was immediately apparent. o Minnesota v. Dickerson Officer observed acting suspiciously near a crack house and he lawfully frisked him for weapons. But felt and object which O knew wasnt weapon but upon further touching, noticed was cocaine. Court held that officer went beyond which is allowed. If officer had immediately

known that was cocaine, then would have allowed. But here officer started a new search which was not supported by the original Terry frisk. Police o Automobiles Searches at the scene An officer may conduct an immediate at the scene warrantless search of an automobile that he has probable cause to believe contains contraband, or fruits, instrumentalities, or evidence of a crime if : 1. he stops the car on the highway or 2. the vehicle is readily capable of use on the highway. Search away from the scene Police can seize the car and remove it to some other area and then search it there without a warrant. Probable cause requirement Probable cause still required for the search. California v. Acevedo o Police saw place bag in the truck and had probable cause to believe that bag contained contraband. On these facts, the police had probable cause to search only the trunk to look for the paper bag. o Also, once the police discover the criminal evidence, the search must STOP! So in Acevedo, once bag found, police cant continue searching for other evidence. o Police may not search any portion of the vehicle that could not contain the object of the search. Carroll v. United States- Court held that Police can search car without warrant because car, unlike home, is mobile. Chambers v. Maroney- Police seize the car so no exigent circumstances. But later search allowed because ct. said that exigent circumstances are to be determined at the scene of the seizure. California v. Acevedo If the police have probable cause to believe that a container contains contraband, they may wait until the container is in the car, stop the car, and seize and open the container, all without a warrant.

This case overruled Arkansas v. Sanders where the Court had held that if police had probable cause to believe that a container contained contraband, and the container was placed in a car, the police could not have searched the car without a warrant, unless thereexisted some exigent circumstances. According to the Court, the Sanders case failed to provide any additional privacy to people and confused the officers. But Acevedo ruling does not extend the Carroll rule. If officers dont have probable cause to search all of the car, then can only search the areas where have PC. California v. Carney Automobile exception applies to mobile homes because lesser expectation of privacy. When vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposesthe two justifications for the vehicle exception come into play. Containers in Cars A container is any object capable of holding another object. Rules: A container, even one belonging to a passenger, may be searched without a warrant during an otherwise lawful automobile exception search, even shortly thereafter at the police station. United States v. Chadwick o Court held that police could have seized the container but not search it without a warrant after container removed to the police station. According to the Court, container is not as mobile as a car and also, there is greater expectation of privacy in a container. Arkansas v. Sanders o Facts similar to Chadwick but this time police allowed the vehicle to drive away and then stopped and seized the container and searched it without warrant. Court said just because container was in a car doesnt mean there was a lesser expectation of privacy. Furthermore, the exigency of mobility must be assessed at the point immediately before the search- after the police had seized the object to be searched and have it securely within their control. United States v. Ross

o Here, unlike Chadwick-Sanders, Police had probable cause to search the car and happened to run upon the container. Searched the container without warrant. Court upheld this search. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal objects; even containers belonging innocent passengers or people not connected to the car at all. So after Ross, 2 lines of container cases. o If probable cause to search a container which was placed in a car, Chadwick-Sanders applied and needed search warrant. o If probable cause to search a car, and container happened to be found during the lawful search, auto exception applied and container could be searched. California v. Acevedo o Court overruled Sanders and announced that interpretation of the Carroll doctrine set forth in Ross now applies to all searches of containers found in an automobile. In other words, the police may search without a warrant if their search is supported by probable cause. o According to the court, the discrepancy between the two rules has led to confusion for law enforcement officers. o What is left of Chadwick? Court has never really overruled Chadwick. So if person carrying trunk on the street, police will need warrant to search. But if places in car, can search is w