CRIM PRO OUTLINE Crim Pro Reading 2 Basics of the 4th Amendment: Language of it ascribes the right to people,

e, NOT one person, not to one person as in 5th and not to the accused as in 6th SC invoked the term people to narrow the class of people protected (1) U.S. v. Verdugo-Urquidez The People as a Limiting Term: o A Mexican citizen and resident was apprehended by Mexican police and transported to US for trial on drug charges after his arrest, the US working w/ Mexican officials conducted warrantless searches of his home in Mexico o Lower courts and the SC held that his 4th Amendment wasnt violated because amendments mention of people was a term of art and that term was intended to refer only to class of people who are part of a national community or who have otherwise developed sufficient connection w/ this country to be considered a part of that community o Here, court found that there was no such sufficient connection o Court found that history of amendment showed that it was to protect Americans from violations of their govt not against aliens outside of the US In the above case Court left open whether or not an illegal alien living inside US was part of protected people o Various judges have held that 4th amendment does apply to illegals inside the US because living in the US is a sufficient connection to that community (2) Reasonableness Clause and the Warrant Clause: o SC reads the warrant clause as controlling even though the reasonableness clause comes first o The court has said that searches and seizures are presumed to be unreasonable unless carried out by a warrant o Exceptions have been created o In some cases recently SC has held that reasonableness clause controls applicable inc ases where search and seizure serves special needs beyond criminal law enforcement (3) Probable Cause: o Probable cause = defines the minimum showing necessary to support a warrant application o The case law shows that probable cause is a limitation on searches and seizures even when no warrant is needed o True definition of what constitutes probable cause is unclear (4) State Action Requirement: o The amendment recognizes a right but doesnt indicate against who it applies

o Unlike 13th amendment fourth is interpreted as protecting citizens against government intrusions and those working with the govt o This protection is against all unreasonable search and seizures by govt. regardless of the purpose of the investigation or the identity of the investigator o Courts accept above interpretation but do take into account the nature of the investigation in assessing its reasonableness and in defining the warrant requirements o (5) The Question of Remedies o As w/ other Bill of Rights provisions 4th amendment establishes a right but doesnt specify the consequences if such right is violated question to be considered in conjunction w/ Exclusionary Rule Purpose of 4th Amendment: o On the face of the amendment it isnt about total protection of privacy o The amendment implicitly recognizes the legitimacy of reasonable searches, the propriety of warrants directing the seizure of persons and things, and most importantly the probable cause standard for a warrant (and warrantless searches and seizures) which requires less proof by govt. than reasonable doubt standard o Thus privacy is protected by language implying the govt.s right to search and seize The Amendment and the Exclusionary Rule: o 2 questions to analyze for 4th amendment: (1) Whether the Amendment prohibits the kind of conduct described? (2) If so, whether the evidence obtained by means of such a violation should be available as proof in criminal trials and other proceedings o Exclusion of evidence unreasonably obtained = remedy? Threshold Requirements for 4th Amendment Protections: Definitions of Search and Seizure: o The Court in Recent cases have held that certain police investigative activity is neither a search nor seizure so 4th amendment doesnt apply o Katz v. U.S. (1967) THE REASONABLE EXPECTATION TEST Issue 1: Whether a public telephone booth is a constitutionally protected area so that evidence obtained by attaching an electronic listening device to the top of such a booth is obtained in violation of the right to privacy of the user of the booth? Issue 2: Whether physical penetration of a constitutionally protected area is necessary before a search and seizure can be said to violate 4th amendment? This is the way D characterized issues but Court said this is flawed because constitution protects people NOT places

The fact that phone booth is public may not negate the fact that person in it expects to have privacy is this constitutionally protected Court denies Government argument that there was no penetration into a private space and thus no search and seizure because only thing seized was phone convo Held = the governments activities in electronically listening to and recording Ps words violated the privacy which he justifiably relied on when he entered the phone booth the fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth is of no constitutional significance Issue 2 = whether the search and seizure conducted here complied w/ constitutional standards Held = Here, the govt. did establish probable cause but the search was based off police authority and not a judge signing a warrant court has never upheld a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means

Katz 2 Prong Test: o (1) The Government conduct must offend the citizens subjective manifestation of a privacy interest o (2) The privacy interest invaded must be one that society is prepared to accept as reasonable 3 Legitimate Interests Protected by 4th Amendment after Katz: o (1) There is an interest in being free from physical disruption and inconvenience An innocent person who is subject to a bodily seizure suffers 4th amendment violation fact that he had nothing to hide is irrelevant o (2) Certain information, even though not indicative of criminal activity, may be personal or embarrassing Innocent citizens have a legit interest in keeping such info private o (3) 4th Amendment prohibits unreasonable seizures of property as well as searches A citizen has a legit interest in control over and use of his property and that interest is implicated when government exercises dominion and control over such property Searches and Seizures Implicate Different Interests: o A seizure can occur w/out a search and vice versa o 4th Amendment protects 2 interests: The interest in retaining possession of property Threatened by seizure The interest in maintaining personal privacy Threatened by search o Usually as matter of timing search usually precedes seizure but when a container is involved seizure goes first

o SC in Soldal v. Cook County a seizure of property occurs whenever there is some meaningful interference w/ an individuals possessory interests in that property o Seizures of property under same 4th amendment scrutiny even if no search w/in meaning of 4th amendment took place Class Notes: 4th Amendment: Text = 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, and supported by oath or affirmation, and particularity describing the place to be searched, and the persons or things to be seized. o Red = Reasonableness Clause o Blue = Warrant Clause Who are the people protected? o SC held that non-US citizens who are not searched in the US and who do not have a sufficient connection to the community are NOT protected by 4th o What about illegals living in the US? Not clear most cases find a connection but question of enemy combatants 2 clauses interpreted to mean all warrants must be reasonable?? New Presumption = Government must obtain a warrant w/ probable cause and if there is an exception where dont need a warrant then there must be reasonable BUT sometimes when there is an exception Court has said that searches are only reasonable if there is probable cause = Special Needs or administrative cases o Probable cause sometimes used to define reasonableness o Sometimes when there is exception may need something less than probable cause for it to be reasonable o Sometimes dont need reasonableness or probable cause (ex. DWI roadblocks) Unlike other parts of Constitution Not clear that there is a state action requirement but Courts have read that into it even though not in text of amendment Remedies are not provided for in this amendment in case of violation o Exclusionary Rule is a judicial invention is that amendment enforceable when evidence is obtained in violation of Ds rights that evidence is excluded from being brought out at trial (Suppression Hearing) If an innocent person is illegally searched then recourse is a civil claim against the city (rare) 2 different arguments that get confused: o There can be a violation of 4th amendment and the evidence may still not be suppressed not always part of same argument Katz v. US

o Police try to get guy in gambling ring so put a wire on a phone booth he is and uses that evidence against him at trial o Katz argues that he had a right to privacy because the phone booth was a constitutionally protected area SC says this is wrong way to phrase the issue o Government says there was no physical intrusion and he was in a public place and audio was taken but there was no seizure of physical evidence especially because the electronic device was on top of the phone booth so no intrusion o Justice Steward for the Court addresses this issue by saying that physical penetration is not the issue rather question shifts to privacy: New question = Whether the person being violated reasonably expects privacy in the place that he is Stewart is extracting the concept of privacy through Constitutional interpretation in respect to the change in US values and change in technology There is no general right to privacy at all costs but there is some expectation of privacy from government intrusion inherent in this amendment Test = Did the citizen justifiably rely on having privacy? o Justice Harlan - Katz 2 Prong Test: (1) The Government conduct must offend the citizens subjective manifestation of a privacy interest (subjective) (2) The privacy interest invaded must be one that society is prepared to accept as reasonable (objective) o Harlan then decided he didnt like this test: The reasonable expectation of privacy is circular b/c what is reasonable will be expected and what is expected will be reasonable This would allow the government to define what is reasonable and this will lead to more government intrusion because people wont expect to have privacy Harlan concerned that the reasonableness of an expectation of privacy would be determined by existing laws and practices, and that this could result in diminution of protected privacy interests; expectation of privacy could be based on what government conditions us to expect In 1961- Silverman case police transformed heating duct into a sound conductor to eavesdrop on suspects and Court held that just because what is being seized is not papers, persons, houses, and effects does not mean that there is not a trespass doesnt have to be tangible change from Olmstead 1930s case where there had to be a trespass Search and seizure implicate different interests Hypo:

o CI tells cops about upcoming robbery and police tell him to go to Pizza place owned by cops brothers who allows them to wire tap the table to listen to conversations o Police do so and hear about guns stashed in bushes and take the guns and arrest them o Ds say cant use that evidence o Issue: is there an expectation of privacy here? o Need consent of owner of pizza place which they have so issue is of expectation of privacy o Issue: is this even considered a search? o Video in private restaurant is reasonable because anyone could see you in the place just as a video can video wont be suppressed o Audio privacy? dont generally think that someone will be able to hear word for word what is happening in your conversation, however what about fact that CI consented? CI would have went back and told police anyway so now there is just a recording Charlie gets up and goes to bathroom and they talk about the guns no consent anymore because Charlie isnt present Guns excluded because wouldnt have known about them if not for the conversation fruit of poisonous tree (may be able to use inevitable discovery in place of warrant) Pro: Reading 3/class notes Application of the Katz Principle: 2 Prong Test: o (1) Has the individual manifested a subjective expectation of privacy? o (2) Is the expectation one that society is prepared to accept as legitimate? Cases show the difficulty courts have in applying the 4th amendment and Katz test to modern investigative techniques: o If the court finds that the police conduct is a search or seizure only means that 4th amendment is applicable the police activity will still be permissible if it satisfies 4th amendment requirements o However if court finds that police conduct is not a search or seizure 4th is inapplicable and police dont have to explain their conduct (1) Subjective Manifestation: o Citizens must take affirmative steps to protect their privacy interests; otherwise, a police inspection not considered a search because subjective manifestation prong is not satisfied U.S. v. Belina (no search where police used later to look into plane window and person made no attempt to cover window no subjective interest in privacy) o Many cases hold that when property abandoned, a police search does not violate 4th because no subjective interest in privacy abandonment need not be explicit

U.S. v. Hoey no search no 4th violation because evidence seized by police in her abandoned apt did not violate because she had a moving sale, hadnt paid rent in 6 weeks, and no longer lived there police could use evidence against her at trial Contrast Smith v. Ohio person carrying brown bag and when police asked to see it he threw bag on car hood court said by throwing bag, he didnt abandon it but rather took steps to hide it from police o Cases where person denies ownership of a container in the face of police inquiries = abandonment Abandonment triggers first prong and whether D has standing to even bring 4th claim (motion I wrote for brad where D threw white gloves on floor before he was arrested and when police arrested him they found them on the ground D has no standing because there was no search because he has no standing as he never claimed they were his nor tried to hide them) o Often cases of abandonment raise issue of whether D has standing to assert 4th amendment violation claim U.S. v. Garzon = abandonment akin to issue of standing because a defendant lacks standing to complain of an illegal search or seizure of property which has been abandoned (2) Open Fields: o Prior to Katz court established an open field rule: Hester v. U.S. (1923) court distinguished open fields from constitutionally protected areas like houses and held that police intrusion into open fields does not trigger 4th violations Court in Oliver v. U.S. (1984) held that open fields rule was consistent w/ Katz because people dont have expectation of privacy in an open field There, police intruded into Ps farm where they thought he was growing marijuana even though there was a no trespass sign The majority reasoned that the 4th amendment indicates with some precision the places and things encompassed by its protections and that open fields are not effects within the amendments coverage Held: o (1) An individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home o (2) Open fields dont provide the setting for those intimate activities that the amendment is intended to shelter from government interference or

surveillance there is no societal interest in protecting the privacy of field activities o (3) It is not generally true that fences and no trespassing signs effectively bar the public from viewing open fields in rural areas o (4) Only the curtilage, not the neighboring open fields, warrants the 4th amendment protections that attach to the home o (5) Courts have extended the 4th protections to the curtilage which has been defined by CL by reference to the area immediately adjacent to the home will remain private o (6) An open field need neither be open nor a field o The court in Oliver rejected the contention that steps taken to protect privacy establish that the expectation of privacy in an open field is legit Oliver may have had a subjective manifestation of privacy in light of his efforts to privatize his property BUT growing marijuana was not an expectation that society was prepared to find as legitimate b/c there is no legit expectation of privacy in an open field Defining Curtilage: United States v. Dunn: o Issue: How far does curtilage extend in any particular case o Rule: A barn located 50 ft away from a fence surrounding a residence on almost 200 acres was outside the curtilage police intrusion did NOT equal a search no 4th violation even though there were no trespassing signs because anyone walking by could have seen what police saw Court should look to 4 factors: (1) The proximity of the area claimed to be curtilage to the home; (2) Whether the area is included w/in an enclosure surrounding the home; (3) The nature of the uses to which the area is put; and o Is it a place where intimate home activities take place if not then = open field and not curtilage (4) The steps taken by the resident to protect the area from observation from people passing by o Rationale: The barn was 60 yards from house itself, not within the area enclosed by the house fence, there was no objective indication that barn was used for intimate activities associated with the home, and there was no protection from observation by those standing in open fields o U.S. v. Hatfield = Even if property is w/in the curtilage, a visual inspection of that property from OUTSIDE the curtilage does NOT constitute a search Access by Members of the Public: o Even if person tries to keep some information private not always a reasonable expectation such as walking down the street cant expect that on a public street your movement is free from observation

o After Katz SC has held that if an aspect of a persons life is subject to scrutiny by other members of society then that person has no legit expectation in denying equivalent access to police o NO search exists if the police obtain info that members of public could obtain o Consensual Electronic Surveillance: U.S. v. White government informant had a wire and engaged D in conversations that were heard by police Held: The law permits the frustration of actual expectations of privacy by permitting authorities to use testimony of those associates who have turned to the police and that one contemplating illegal activity must realize the risk that his associates may be reporting to the police Courts have applied White to video surveillance U.S. v. Gonzales government got tipped off that D was expecting shipment of drugs to a hospital so they set up hidden camera in the mailroom there and caught him enthusiastically receiving the package o Held: hospital mailroom was quasi-public and anyone outside watching could have seen what the cameras saw this is not a legit societal expectation o Financial Records: California Bankers Assn v. Shultz whether the record keeping and recording requirements imposed on banks and individuals by the Bank Secrecy Act of 1970 violated 4th Title I of the Act required to maintain records of their clients identities and to microfilm certain checks also allowed Secretary of Treasury to require certain reports ACLU argued that this amounted to 4th violation Held: the banks were parties to any transactions of depositors and the depositors of necessity granted the banks access precluded any legit expectation that govt. would not have same access depositor makes bank a party so therefore any subpoena to a bank for depositors records does not implicate 4th because bank is a party who can give consent to their records Patriot Act expanded this right and FISA warrants increased o Pen Registers: Smith v. Maryland: police installed pen register device in phone company offices and recorded the numbers called by D from his home Held: use of pen register did not constitute a search and no warrant or probable cause was needed

o Rule: A person has no legit expectation of privacy in information he voluntarily turns over to 3rd parties o Analysis: When D used his phone, he voluntarily conveyed numerical information to phone company assumed risk that phone company could turn over his calls to police Despite above case Congress has imposed limitations on use of pen registers Pen Register provisions of the Electronic Communications Privacy Act of 1986 Considered a search and not a seizure so need a warrant but no probable cause Statute prohibits use of pen registers unless: (1) the provider gives consent or (2) court order is obtained o Court order issued upon a certified statement by government official that the pen register is likely to uncover information Carnivore and Computers: o FBI developed computer surveillance program called Carnivore that monitors activity over the internet monitors email, web browsing, and file transfer activity o Capable of gathering info on 2 levels: (1) Full Connection Mode = intercepts the addressing information and content of a targeted users electronic communication FBI considers this a search and regulated by 4th amendment (2) Pen Collection = primarily only gathers the addressing information associated with email, web browsing, and file transfer activity FBI says this is equivalent to pen register collection and therefore not a search and only subject to Electronic Communications Privacy Act o The argument = computer user has no legit expectation of privacy in the web addresses he visits or the email addresses to which he sends emails as the info is accessible to his internet service provider o Patriot Act amended the relevant electronic surveillance statutes to permit the pen collection mode of Carnivore o Electronic Pagers: U.S. v. Meriwether (9th Circ.) police seized pager of suspected drug dealer which was in the on position and agent recorded next 40 pages one traced back to D and subsequent investigation implicated D in drug deal D argued that it was an illegal search of his private information because he called the person who owned the pager

Held: He did not have a reasonable expectation of privacy when he transmitted his # to the pager and D, in making the call, disclosed information to another member of the public and therefore assumed the risk that his message would be received by whoever happened to be in possession of the phone

o Trash: California v. Greenwood police asked garbage collector to pick up the bags that D left in front of his house and turn them over to police used evidence in bags to secure a search warrant for Ds house D challenged search as illegal fruit of his trash Held: Police inspection of trash was not a search and therefore not 4th violation and relied on Smith (pen register case) that it is common knowledge that garbage left on street is accessible to public and because public has access to trash police also have such access to evidence that could be observed by anyone in the public o Judge found it irrelevant that city required putting trash on street and did not base rule on abandonment theory because that would require a showing that there was voluntary relinquishment of control over property Crim Pro Class 4 Should it be important how intimate the details revealed by the search are as to whether or not its considered a search: How intimate/personal are the materials that are being searched? not an accepted notion Public Area: Most acts conducted in public are not protected question of whats truly public? Court has held that homeless persons stuff in public place is protected but homeless person on private property is not U.S. v. White is bathroom stall public? o Officer peaked through crack in public stall and saw D engaged in criminal activity o Not protected because design of bathroom stall allowed such observation by public in bathroom Aerial Surveillance: guided notion # 3 Court applied the public-access-therefore-police-access rationale of Smith and Greenwood to aerial surveillance of private property California v. Ciraolo: o 4th not violated by aerial observation of 1000 ft of fenced-in backyard even though no warrant and no probable cause

o This observation found that D was growing pot o Held: the mere fact that an individual has taken measures to restrict some views of his activities does not preclude an officers observations from a public vantage point where he has a right to be and which renders the activity clearly visible Anyone who was flying above could have seen it no expectation of privacy Dow Jones Chemical Co. o Aerial surveillance of industrial plant was not considered a search Florida v. Riley: o Helicopter hovers 400 ft above property to observe property o Held: no law prohibiting ppl from hovering over land at 400 ft no expectation of privacy and also there was no injury to the property or any dust or threat from visual inspection and that NO INTIMATE ACTIVITIES IN THE HOUSE OR CURTILLAGE HAD BEEN OBSERVED

Manipulation of Bags in Public Transit: Officers use various techniques to stop flow of interstate drug traffic on interstate buses and trains One technique is for officers to enter bus or train and examine, by touch, the outside of bags that have been placed in overhead baggage racks Soft bags are manipulated by touch to see if they contain hard objects such as drugs or guns Bond v. U.S.: o Issue = whether a law enforcement officers physical manipulation of a buss passengers carry-on luggage violated 4th? o Held: violation o Facts: On bus ride from CA to AK bus stopped at border control checkpoint in TX and agent boarded bus to check immigration status of passengers Once immigration status checked agent walked towards front of bus and squeezed the soft luggage in overhead racks Agent felt one back above Ds head and felt hard object which turned out to be brick of cocaine o Government argues that luggage during travel is always subject to being touched and D should have a reasonable expectation that it could occur o Court says that this far exceeded the casual contact that other passengers would be expected to have with his opaque luggage and putting bag directly above his head in rack showed that he sought to reserve privacy no expectation that bag would be handled in exploratory way Investigation that Can only Reveal Illegal Activity: Investigation that threatens to uncover innocent, private activity can be a search because it invades legit 4th secrecy interest

However SC held that there is no legit expectation of privacy in illegal activity AN INVESTIGATION IS NOT A SEARCH IF IT CAN ONLY REVEAL ILLEGAL ACTIVITY Canine Sniffs: o U.S. v. Place: Rule = sniff by well trained dog is NOT a search because it only detects the presence of narcotics or bombs and does not require opening the luggage Unlike opening the bag canine detection does not expose noncontraband items that would be remain hidden from public view THE MANNER IN WHICH THE INFORMATION IS OBTAINED THROUGH THIS INVESTIGATIVE TECHNIQUE MUCH LESS INTRUSIVE THAN A REGULAR SEARCH but cant then immediately open bag as a result of the positive hit INFORMATION OBTAINED IS LIMITED Law enforcement can then use this information as PROBABLE CAUSE to obtain a warrant for a search This search took place in public place and was non-invasive Dog Sniffs of People and Places: o U.S. v. Garcia-Garcia: Dog sniff of a person is equivalent to a Terry frisk if the dog makes contact with the person o U.S. v. Reyes: Dog sniff of a person from 4 ft away is NOT a search o U.S. v. Thomas (2nd circ) Court held that use of drug-sniffing dog outside of an apartment IS a search because there is a greater expectation of privacy in the home greater intrusion than of luggage in Place o U.S. v. Coyler (DC Circ): Held that a dog sniff outside AMTRAK sleeping compartment did NOT constitute a search because SC in Place held that government conduct that can reveal nothing about non-contraband items does not affect a legit privacy interest o U.S. v. Reed: Criticizes Thomas because SC found that there is no legit interest in protecting contraband thus finding the location of contraband is irrelevant because its not a search Dog Sniff of a Car in a Routine Traffic Stop: o Illinois v. Caballes: Facts D was legally stopped for speeding and while one cop was writing the ticket the other cop brings a dog near the car even though they had no justification for thinking there were drugs in the car but dog alerted cops to trunk and found pot whole incident took less than 10 min Issue Whether 4th requires reasonable, articulated suspicion to justify using a drug dog sniff a vehicle during a legit traffic stop

Held NO violation Rule a seizure that is justified solely by the interest in issuing a warning ticket to a driver can become unlawful if it is prolonged beyond the time reasonably required to complete the ticket Here, because only 10 min duration was reasonable so no bad seizure Rule 2 The use of well trained narcotics-detection dog during lawful traffic stop generally doesnt implicate legit privacy interest Rationale The dog sniff was performed on the exterior of the car while he was lawfully seized for traffic violation any intrusion on Ds privacy expectations does not rise to level of a constitutionally cognizable infringement Ginsberg Dissent It was a 4th violation because use of dog changed the character of what began as a lawful traffic stop Chemical Testing

Use of Technology to Enhance Inspection: Kyllo v. U.S. o Facts officers suspected D of operating a pot grow house so used thermal technology to see if there was more heat eminating out of one part of the house more so than other parts and the neighbors home o Held: Violation = Search so need a warrant o Rule This is a house so gets more expectation of privacy and this is not a technique that is available to the public and the detection of heat at neighboring innocent homes constitutes an illegal search This is a physical intrusion of home that reveals information that would not have been possible without using this technology intrusion of intimate details of home o Stevens dissents and says there is no intrusion and thus not a search because it only reveals presence of possible contraband Crim Pro Class 5 THE FOURTH AMENDMENT: THE WARRANT CLAUSE Requirements for Obtaining a Warrant: Cardinal Rule = searches and seizures without a warrant are deemed unreasonable (outside the judicial process because no approval by judge) except there are some exceptions Per Se Rule = a search an seizure in some instances is presumed to be unconstitutional if no prior warrant is obtained, but in many other circumstances the prior warrant is unnecessary to justify a search or seizure Johnson v. US (1948) Warrant is Necessary: P convicted of 4 counts of fed drug charges

Issue = Whether it was lawful, without a warrant of any kind, to arrest petitioner and to search her living quarters Facts: o Cops learned from CI that people were smoking opium in a hotel room o The cops then knocked on the door after smelling it (they were experienced to know the smell) and the woman answered after police told her who they were o The woman admitted them to enter o The cops then told her she was under arrest and searched her room and found incriminating evidence o District court would not suppress evidence at trial Issue: Was this a violation of 4th? Holding: YES Court: o Cops should have gotten a warrant because they went into someones living quarters which has a privacy right o No legit reason existed to pose an exception to the warrant requirement o Officers had no probable cause to arrest D until they went into hotel and used their entry and visual inspection to justify a search incident to the arrest search wasnt incidental to arrest because without illegal entry they would have no right to arrest

THE FUNCTION OF THE WARRANT REQUIREMENT Indiscriminate searches bad for 2 reasons: o (1) Concern is over unjustified searches and seizures = rests on principle that every citizen is entitled to security of his person and property unless and until an adequate justification for disturbing that security is shown o (2) Indiscriminate searches and seizures are done at discretion of exec officials, who may act dispositively and capriciously in the exercise of their power = protects against arbitrary searches and seizures Probable cause = threshold of proof that must be satisfied before power to search is legit govt must be able to demonstrate a factually-based interest in people, places or things before using its power to disturb them Oath and Affirmation provision of 4th: o Probable cause must be shown by people (officers) willing to swear to or affirm the truth of their statements and thus to be held accountable by their representations o Warrant applicant committing to public record the information that is known before the search so that after the search there is no confusion between the ex-post and ex-ante positions of the applicant (prevents officers from working backwards to fill in facts after search) Specificity Requirement: o Implies that govt can only interfere with those persons, places or things that it has shown valid interest in written record helps o Specification of objects sought to be seized may inform judges decision as to whether the proposed search is reasonable and not excessive

o Showing of probable cause does not mean that any search and seizure authorized by the warrant is valid rather, it means that any search and seizure directed by warrant at the people, places and things to which the probable cause specifically relates satisfies warrant clause of 4th Magistrates Role: o By placing a judge between police and citizen ensures a neutral observer to decide if probable cause and specificity requirements are met o Serves function of also allowing a judge to refuse a warrant if he finds it unreasonable even if other elements are met

OBTAINING A SEARCH WARRANT: CONSTITUTIONAL PREREQUISITES (1) Probable Cause: a. The source of information upon which probable cause is based i. Aguillar v. Texas and Spinelli v. U.S. = cases which deal with regulation of the sources of information upon which probable cause is based Spinelli v. United States (1969): Facts: o D convicted of traveling to St. Louis from IL with intention of conducting gambling activities proscribed by MO law o D challenges constitutionality of warrant that allowed FBI to a search that led to evidence to convict him Court compares Aguilar Case: o Search warrant there issued upon affidavit of officers who swore only that they had received reliable info from a reliable person and do believe that narcotics were being stored on the premises o Court said that hearsay can be used as probable cause but affidavit here failed for 2 reasons: (1) It failed to set forth the underlying circumstances necessary to allow judge to independently judge the CIs info (2) Officers/applicants didnt support their claim that their CI and his info were credible o Affidavit here is good: It contained the CIs report and contained report of independent FBI investigation that corroborated CIs conclusions o Aguilar Test: (1) CIs report must have probative value that can be assessed If CI tip found in adequate under test the other allegations which corroborate CI tip in hearsay report then considered (2) Judge must ask: Can it be fairly be said that the tip, even when parts of it have been corroborated by independent sources, is as trustworthy a tip that would pass the Aguilar standards? (3) In the absence of a statement detailing the manner in which the info was gathered it is especially important that tip does describe the accusseds criminal activity in sufficient detail that the judge may know that he is relying on something more than a casual

rumor circulating in the underworld or an accusation based merely on an individuals general reputation Holding = unreasonable search not enough info contained in warrant = NO PROBABLE CAUSE This case applied to cases based on CI tips and on CI tips who are paid informants by police

(2) Rejection of a Rigid 2-Pronged Test: a. Illinois v. Gates = Spinelli and Aguilar tests will no longer control the determination of probable cause where police obtain info from paid, professional or anonymous informants b. Spinnelli still relevant in respect to when police rely in whole or in part on a CIs tip Illinois v. Gates (1983): Facts: o D were indicted on drug charges stemming from a search of their car and home with a warrant that discovered pot and other contraband o Police received anonymous letter describing the drug trafficking and buying of a couple and letter detailed their travel buys o Cops looked into tip and set up surveillance which corroborated details in letter o Cops executed search warrant on their home and car and found weapons drugs and other contraband o IL suppressed evidence because the judge was not given enough reliable information to show probable cause Issue: Did judges issuance of a warrant on basis of partially corroborated anonymous CI tip violate 4th? Rule: o A totality of the circumstances test = better standard then applying a rigid 2 prong test to every case o The reliability and veracity of the CI tip are better understood as relevant considerations in the totality of the circumstances analysis a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indication of reliability o Standard of Probable Cause = only the probability and not the prima facie showing, of criminal activity, is the standard of probable cause o Cant be such a technical analysis because many warrants written by police and not lawyers o The possession of a warrant by police conducting an arrest or search greatly reduces the perception of unlawful or intrusive police conduct by assuring the person that the property which is to be searched and seized is of lawful authority of the executing officer, his need to search and the limits of his power to search

o Standard of review for judges determination of probable cause = that there is a substantial basis for concluding that a search would uncover evidence of wrongdoing 4th requires nothing more o 2 prong test impedes goals of law enforcement Gates Test: o (1) Nature of the information o (2) Whether there has been an opportunity for the police to see or hear the matter reported o (3) Veracity and basis of knowledge of the CI o (4) Whether there has been any independent verification 0f the matters reported through police investigation Notes: o NY rejected totality of circumstances test in People v. Johnson based on construction of states constitution

Function of Corroboration After Gates: Biggest effect = more permissive view of the nature and extent of corroboration necessary to shore up a defective tip U.S. v. Peyko officer received info that D was getting regular packages of drugs through FED EX o Officer investigated and found that D had regularly been receiving and mailing packages o Court found that tip + corroboration satisfied a warrant to seize a package with his name on it o While the corroboration was of innocent activity (receiving and mailing packages), it lent color to the tip, which lent color to the corrob which led to probable cause under Gates totality of the circumstances test Insufficient Corroboration: Sometimes police corrob insufficient to shore up defective tip U.S. v. Leake handyman said while he was doing work at a residence he smelled pot in the basement police set up surveillance but no undue amount of traffic was seen o Judge issued warrant which seized 300 lbs of pot from basement o Court said warrant lacked probable cause because anonymous tip did not have enough detail, no names were mentioned, and no dates were provided and no planned future activity was described as in Gates Gates Applied: Massachusetts v. Upton (1984): Reversed Mass highest court ruling that warrant was based on insufficient detail and applied Gates totality test The Citizen Informant: Under both Spinelli and Gates court distinguishes between police informants and anonymous informants from ordinary citizen who reports a crime Reasons:

o Paid informants are presumed to be unreliable because they are shady by nature and financial arrangements lose credibility in motive for reporting o Anonymous are unreliable because they may be using their anonymity for suspect reasons such as to harass or frame someone o Ordinary citizen is reliable because they are presumed to be motivated by concern for society and their own safety Accomplices: U.S. v. Patterson: o Police arrested Green after 2 masked men robbed a bank o Green confessed and identified Patterson as his accomplice police used that as probable cause to search Pattersons car and found incriminating evidence o P challenged search as lacking probable cause but o Rule: Court found that the confession of a co-participant is itself sufficient to establish probable cause no corroboration needed o Court said that D could be convicted solely based on uncorroborated testimony of an accomplice (can use accomplices testimony as long as he will swear to it in court jury can choose to believe accomplice or not?) Equivocal Activity: Where it is unknown whether a crime has been or is being committed = circumstance in which a fair probability question is presented Ex: Where officer sees man carrying a tv and stereo down the street in a shopping cart at 2 am does that mean that there is no fair probability of criminal activity even though there are some innocent explanations for it U.S. v. Prandy-Binett: o At DC train station detective saw man with small rectangular block wrapped in silver duct tape looked innocent but to detective looked like a kilo of drugs o Detective was at station on drug duty looking for passengers coming from NY (source of drugs city) and noticed D walking faster than most passengers with a small gym bag o They approached him and he told them he was coming from NJ but had train ticket from NY with a MD license said he had been in NJ for a week but he only had one small bag o Officers asked him if his bag contained drugs or guns and he said no and wouldnt consent to search but then he put bag on the ground and a perfume bag slipped out which he said was a gift but he continued to manipulate the jeans in his bag to cover the silver block which eventually slipped out and turned out to be coke as indicated by a field test o Court: Held that based on the totality of the circumstances there was a fair probability that block contained drugs and upheld conviction

Probable cause can be found somewhere between less than evidence which would justify conviction and more than bare suspicion Probable cause evaluated not only from the perspective of a prudent man but also from perspective of the officer involved in the search or seizure

Probable Cause to Arrest: Probable cause requirement applies to arrests and searches Probable cause to search = whether there is a fair probability that area or object search contains evidence of a crime Probable cause to arrest = whether there is a fair probability to believe that the person arrested has committed a crime Often these 2 fair probability assessments are actually one In arrest context question of fair probability arises when there has been a crime committed but dont know if suspect is the perp U.S. v. Valez o Buy and bust UC notified field team and they followed perp but lost him thought they saw him walking out of a store and arrested him and man had packets of coke in his pocket o Turned out they arrested wrong man as he did not fit description given to field team o D argued that arrest was illegal because the description was overly general and did not include facial hair which D had and therefore lacked probable cause and that mistake was due to negligence of police conduct o Court held that arrest was lawful and the description was not overly general even though he was not actually involved in the buy and bust o Court held that facial hair was not enough to lack probable cause because D matched description of perp in every other way, facial hair can be a disguise, and he was arrested w/in 10 min of buy and in same vicinity o No purpose would be served in suppressing evidence of his guilt because it was a result of police well-intentioned but misguided actions Crim Pro Reading 6 (166-190) WHEN WARRANT CLAUSE APPLIES Rule = search or seizure without a warrant based on probable cause is unreasonable Court has found exceptions o Some circumstances excuse officer from obtaining a warrant but still require officer to have probable cause o Other circumstances excuse warrant and probable cause Arrests in Public and the Home: (1) Standards for Warrantless Searches: must always have probable cause a. 120.1 of Model Code of Pre-Arraignment Procedure

i. Police authorized to arrest without a warrant if the officer has probable cause to believe that such person committed 1. A felony 2. A misdemeanor and the officer has reasonable cause to believe that such person a. Will not be apprehended unless immediately arrested; or b. May cause injury to himself or others or damage to property unless immediately arrested; or 3. A misdemeanor or petty misdemeanor in officers presence (2) Arrest vs. Summons: a. Atwater case woman arrested for a traffic violation instead of a ticket summoning her to court i. Court held that officer does not need to proceed by summons, even for minor offenses if a state authorizes a custodial arrest for the offense (3) The Constitutional Rule: Arrests in Public: a. U.S. v. Watson (1976) i. Facts: 1. CI calls postal inspector and tells him how D called him informing him that he had stolen cc and they could use them 2. CI had previously given inspector reliable info including info on D 3. CI told inspector that D had contacted him and had more stolen cc inspector told him to meet with D and that if D had more stolen cc to make a signal which he did and the cops moved in and arrested him 4. His search of Ds person revealed no stolen cc so inspector asked if he could look inside Ds car and D said yes and gave him keys and inspector found stolen cc 5. Trial court did not suppress but court of appeals did because there were no exigent circumstances not to obtain a warrant and the cc should have been suppressed as fruits of the illegal arrest ii. SC: 1. 4th Amendment does not require a warrant to make an arrest 2. Rule = police officer can make an arrest with probable cause for a felony or mis committed in his presence or a felony not committed in his presence if there was reasonable ground for making the arrest a. No constitutional rule that need a warrant to make an arrest Note on the Use of Excessive Force in Making an Arrest:

Tennessee v. Garner (1985) non violent felon was shot to death while fleeing from cops o Rule = under 4th deadly force may not be used to prevent the escape of a felon unless it is necessary to prevent the escape and the officer has probable cause to believe that perp poses a significant threat of death or serious physical injury to the officers or others Graham v. Connor (1989): o Rule = all claims of excessive force in making the arrest (whether deadly or not) are to be governed by 4th standards of reasonableness Reasonableness inquiry = the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight Thus while officer may use non-deadly force in apprehending a fleeing felon, the manner in which the force is asserted may be unreasonable

(4) Protections Against Erroneous Warrantless Arrests: a. Watson rule = if an officer has probable cause to believe that a person committed a felony he can arrest perp in public place w/out a warrant b. SC held that even though warrant not needed for public arrest certain post-arrest protections are necessary to minimize the intrusion on a person who is arrested w/out probable cause c. Gerstein v. Pugh Rule = if arrested w/out a warrant he is entitled to a prompt post-assessment of probable cause by a judge as a prerequisite to an extended pre-trial detention following a warrantless arrest i. However state need not provide the adversarial safeguards associated w/ trial 1. This is because probable cause stadard traditionally has been decided by judge in non-adversarial hearing on basis of hearsay and written testimony County of Riverside v. McLaughlin (1991): Issue = What does prompt mean? Facts: o Class action suit challenging countys policy of combining its probable cause hearings with its arraignments which says that arraignments must be conducted without undue delay within 2 days of arrest but excludes weekends and holidays so suspect can be detained up to 5 days on a holiday o P asked district court to issue a preliminary injunction to provide all persons arrested without a warrant a judicial determination of probable cause within 36 hours o District court and appellate court held that policy violated ruling in Gerstein because no more than 36 hours were needed to complete the administrative steps incident to arrest

Holding: prompt does not mean immediately after administrative steps completed Rule 1: probable cause determination within 48 hours passes Gerstein test but hearing may still violate Gerstein if perp can prove that his hearing was unreasonably delayed o Unreasonable delay = Delay for purpose of gathering more info to justify arrest Delay motivated by ill will against perp Delay for delays sake o Reasonable delay = Unavoidable delays in transferring prisoners from one facility to another Handling late night bookings where no judge is available Obtaining presence of an officer who may be busy Rule 2: Where no probable cause hearing within 48 hours burden shifts from D to state to prove that the delay was not unreasonable based on the existence of a bona fide emergency or other extraordinary circumstance Rule 3: Jurisdiction that offers combined proceedings must do so as soon as reasonably feasible but no more than 48 hrs after arrest o Only early pre-trial proceedings can be combined such as bail hearings and arraignments

(5) Arrests in the Home: The Payton Rule a. Payton v. New York (1980) i. Rule = exception to warrant requirement for public arrests did not extend to the home ii. Without exigent circumstances need a warrant to make an arrest in a home when there is reason to believe the suspect is within the home iii. Probable cause isnt enough to enter someones home and arrest them Reasons to Believe the Suspect is Home: o Payton leaves it to the officer executing the arrest warrant to determine whether there is reason to believe the suspect is within the home o Lower courts differ on whether reason to believe is something more or less than probable cause Is the Arrest at Home or in Public: o U.S. v. Holland (2nd circ. 1985) D was in his 2nd floor apt in a 2 family house where he heard someone ring the doorbell and to answer it he had to walk down the stairs through a common hallway and open the door in the front of the building where he was arrested without a warrant Rule = Payton did not intend to extend definition of home to include the entranceway of a common hallway

o Question arises as to whether an arrest warrant is necessary when cops knock on door and announce who they are and the person opens and then cops arrest him jurisdictions vary Some courts say a warrant is needed because when the door is opened the arrest occurs within the home Other courts hold that if police remain outside the home and announce their intention to arrest then the arrest is made in public because officers never physically entered the home lead to question whether officer subsequently enters the home to secure the premises or follow the perp as he gets his coat Under this scenario officer was outside if the arrest was made before the cops entered, then the entry can be justified as incident to the arrest and info discovered during the incident search considered legally obtained However if arrest made after entry and without a warrant = Payton violation and evidence suppressed as fruit of illegal arrest Hotels and Motels: o Payton applies to properly rented hotel and motel rooms during the rental period o Once rental period ends or person ejected from premises no longer considered a home and no warrant required for arrest

Arrests in the Home of Third Parties: o Steagald v. U.S. (1981): Cops were after a fugitive on drug charges and heard that he was going to be in Ds home for 24 hours and cops entered home armed with an ARREST warrant They did not find the fugitive but they found drugs and used them against D, the owner of the home D moved to suppress them because cops didnt have a search warrant Rule = a search warrant is needed to look for a suspect in the home of a third party absent exigent circumstances or consent Difference between search and arrest warrant in this context: o Arrest warrant = only required judges determination that there is probable cause to arrest a person; not location specific o Search warrant = require judge to determine probable cause to believe that suspect is in home of 3rd party

The Rights of Overnight Guests: Minnesota v. Olson (1990): Rule = arrest warrant required under Peyton to arrest someone in home of 3rd party Material Witness: By federal statute police have power to arrest material witness and detain them under certain circumstances Crim Pro Reading 7 STOP AND FRISK (1) Stop and Frisk Established: a. There are numerous situations where police know they dont have probable cause to act, but want to stop a suspicious person for prelim questioning to determine whether a crime is about to occur b. Court adopted NY statute Stop and Frisk = allows searches and seizures of persons and things on a standard less than probable cause Terry v. Ohio (1968) Issue = What is role of 4th in the confrontation on the streets between citizens and police investigating suspicious circumstances? Facts: o D + co-D were observed by officer acting suspiciously and walking back and forth looking at a store o Officer had been in that area for many years and knew to look for pickpocketers and robbers o He observed them for a while and then saw them about to enter a store o He approached them, identified himself and asked for their names then patted down Ds clothing where he felt a gun but couldnt remove when he reached inside Ds coat o Brought them into store and removed Ds coat and found pistol and in patting down the others found a gun on co-D o Cop testified that he only patted them down on the outer garments to see if they had weapons and didnt reach inside until he found a gun o Lower court upheld the search SC looks to whether the search and seizure were unreasonable (stopping D was concluded to be a seizure of his person) and whether the cops action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place Rule = where a police officer observes unusual conduct which leads him REASONABLY to conclude in light of his experience that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a cop and makes REASONABLE inquiries, and where nothing in the initial stages of the encounter serves to dispel his REASONABLE fear for his own

safety or others safety he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the OUTER clothing of suspect in an attempt to discover weapons which might be used to assault him o Such a search is REASONABLE under the 4th and any weapons seized may properly be introduced into evidence against the person whom they were taken from Notes on Terry: Court permits stop and frisks on less than probable cause and invokes the reasonableness clause of 4th over warrant clause as the governing standard Does this only apply to weapons?? What if drugs are found?? Terry = stop for purpose of investigation = seizure because not free to go For it to be a terry stop = (1) need reasonable suspicion (specific and articulated facts less than probable cause and proponderance of evidence) Frisk = limited pat down of outer clothing if you feel something that you think is a gun then can go into inner clothing Bright Line Rule of Terry = whenever you stop a car for a lawful traffic violation officer ALWAYS has right to ask driver and passengers to get out of car purpose is for safety of officer PA v. Mimms Early Application of Terry Adams v. Williams (1972): D convicted of illegal possession of handgun and possession of heroine and unsuccessfully challenged the stop and frisk Facts: o Cop was alone in early am on car patrol in high crime area where a person known to him approached him and informed him that someone in a nearby vehicle was carrying narcotics and had a gun at his waist o Cop called for assistance and approached car and told D to open door, instead he rolled down window and cop reached in and removed the gun from his waist gun wasnt visible from outside but was where CI said it was o When other cops got there they arrested him and incidental to the arrest they searched the car and found drugs and more guns D said CI tip was not good enough basis for stop and frisk Court: o Cop was justified to make stop because the tip was from someone who was known to him and had given him reliable info in the past this tip would not have been enough for a search warrant but tip carried enough credibility to justify the stop o Court also says that search of Ds person was justified in light of fear for cops safety it constituted a limited intrusion and was reasonable for his safety o The subsequent search of the passenger glove compartment was permissible in light of the circumstances not as a Terry search but as a search supported by probable cause to arrest

o Gun found in place CI said probable cause to arrest search of his car was incidental to the arrest = fruits of the search were properly admitted into evidence Bright Line Rules under Terry Pennsylvania v. Mimms (1977): Facts: o 2 cops on patrol see car with expired license plate so pull driver over and ask him to step out of car to produce his license and registration and they notice a bulge in his jacket which appears to be a weapon o They then frisk him and recover a loaded revolver Court: o Cop acted reasonably and evidence properly admitted: Parties agreed that officer was justified for pulling him over and justified for frisking him BUT Issue = Whether the cops were justified in asking him to step out of the car Bright Line Rule = Officers in the course of a legal stop of an automobile have an AUTOMATIC right under Terry to order the driver out of the car o The inconvenience of stepping out of the car weighs less than the interest in protecting officer safety Mimms and Passengers: Maryland v. Wilson (1997) = Mimms applies to passengers too out of concern for officer safety Scope of Mimms: Officers have right to open car door if windows are very tinted and they cant see inside Mimms Applied: NY v. Class (1986): Driver stopped for vehicle violation and cops couldnt see cars VIN # because of papers on the dashboard so he reached inside the car and saw a gun Rule = in order to observe a VIN # generally visible from outside, police officer may reach into the passenger compartment (not glove compartment) of a car to move papers obscuring VIN after driver has been stopped for violation and has exited the car Detention of Occupants of a Residence during Legal Law Enforcement Activity: Michigan v. Summers (1982) = Police officers with a search warrant for a home can require the occupants to remain there while the search warrant is executed o Such a seizure always reasonable given states interest in: (1) Preventing flight (2) The risk that persons leaving the residence may attempt to destroy evidence (3) Minimize risk of harm to officers o Court held that this was less serious intrusion than a Terry stop because person is being detained in their home

o Use of search warrant provides protection against over reaching cops Muehler v. Mena (2005) court applied Summers to uphold the handcuffing and detention of a person during a warranted search of the home of a suspected gang member o Facts = cops get warrant for gangs house where one was involved in drive by and used SWAT to enter the house one person in her bed and was detained The gang was known to be comprised of illegals so INS accompanied the cops and asked her immigration status and she said she was a permanent resident which her papers confirmed D said she was detained too long and in an unreasonable manner handcuffed for 2-3 hours (duration of search) o Rule = inherent in Summers is right of cops to use reasonable force to effectuate the detention + use of handcuffs for duration of search is reasonable to protect officer safety Crim Pro Reading 8 (209-230) STOP v. ENCOUNTER When does a Seizure Occur? Line between Stop and Encounter: Court has difficulty in determining whether a stop has occurred when the police conduct is not as affirmatively coercive or as physically intrusive as in Terry U.S. v. Mendenhall (1980) Mendenhall Free to Leave Test: Facts: o D observed by DEA agents at Detroit Airport as she arrived from LA flight they suspected her of being a drug courier o Agents approached her and identified themselves (they werent wearing uniforms) and asked her for her ID and ticket ID was in her name but not ticket and she became nervous o Agent gave her back her ticket and ID and asked her to come with him to airport DEA office for further questioning which she did without saying anything o In the office they asked her if she would consent to search of her bag and person and she said yes o In strip search drugs were found Court holds no seizure so outside 4th Rule = Person has been seized within meaning of the 4th if and only if, in view of all the circumstances surrounding the incident a reasonable person would believe he was not free to leave same doctrine as terry stop and need reasonable suspicion if not reasonable then any evidence found is suppressed as fruit of illegal search o Example of circumstances that may indicate a seizure, even where a person did not attempt to leave: The threatening presence of several officers Display of a weapon by the officer

Some physical touching of the persons person The use of language or tone of voice indicating that compliance with the officers request may be compelled ** Subsequent cases have held that free to leave test = initial benchmark for determining whether a person has been stopped within the meaning of Terry Police can approach people and ask them questions and it is NOT considered a stop but just an encounter that is outside the scope of 4th How can officer avoid suppression: o (1) Make it an encounter by explicitly telling them they are free to leave

Florida v. Royer Applying Free to Leave Test: Facts: o D was observed at Miami Airport by 2 plain clothes detective from Narcotics who believed that D, based on his appearance, mannerisms, luggage and actions fit the drug courier profile o D purchased a one-way ticket to NYC and checked his 2 suitcases with ID tags in name of Holt o 2 cops then approached him, identified themselves as officers from sheriffs and asked if he had a moment to speak with them and D said yes o Upon request but w/out oral consent, D showed cops his ticket and ID o His ticket had name Holt but his license had his real name and told cop that discrepancy was because his friend made the reservations for him o D became more nervous and cops informed him that they were narcotics cops and had reason to suspect him of transporting drugs o Cops didnt give him back his ticket or ID and asked him to come with them to a room and he went but didnt orally consent where they brought him his luggage and asked if they could open it and he didnt respond but gave them a key o Cops then opened the suitcase, found drugs and arrested him Court: o First unquestioned that without a warrant to search the luggage validity of search depended on Ds consent because no probable cause nor exigent circumstances Rule = State has burden of showing that necessary consent was given and that it was FREELY and VOLUNTARILY given burden not proven by mere submission to a claim of legal authority o Second cops dont violate 4th by merely approaching person on the street or in any other public place, by asking him if he is willing to answer some questions, by putting questions to him if he is willing to listen, or by offering into evidence his voluntary answers to such questions Rule = the person approached need NOT answer any question put to him he can decide to walk away HE MAY NOT BE DETAINED EVEN MOMENTARILY WITHOUT REASONABLE, OBJECTIVE GROUNDS FOR DOING SO; AND HIS REFUSAL TO LISTEN OR

ANSWER, WITHOUT MORE DOES NOT FURNISH THOSE GROUNDS Holding = seizure not stop Rationale = Asking for his ticket and ID without giving them back and not telling him he was free to leave = seizure in violation of 4th o Different from Mendenhall because there, there was no luggage involved and here, his luggage was taken from him without consent and he could not freely leave the airport without his luggage = seizure

Factory Sweeps: INS v. Delgado (1984): Rule = INS officers did not seize workers when they conducted factory surveys in search of illegal immigrants because they were free to leave Facts = agents fan out all over factory and ask workers for their papers and if they dont have them they were arrested there were officers stationed at the exit to ensure that everyone gets their questions asked (and no one leaves but argues that they werent going to leave anyway because they were at work) but court finds they were free to leave Street Encounters: Whether or not when an officer stops someone on the street absence any articulable suspicion whether it is a 4th violation depends on if it is a seizure or an encounter U.S. v. Cardozza: o Facts: D asked co-D to get him a gun and gave him $ for the gun They went to the park at night to buy the gun and 9 rounds of ammunition Co-D loaded 8 rounds and put the gun at his waistband D kept the 9th round with him They were walking home at 2 am and cops in unmarked car on Police Youth Violence task force noticed that they were acting weird about which direction to walk in when they noticed the unmarked car They walked in front of the car and one cop recognized D and told car to follow them Cop testified that he wanted to ask D some questions about a shooting that happened earlier Officer rolled down window and asked D what he was doing out so late D began to gesture with his hand and revealed the 9th round so cop got out of car and pat-frisked D At the same time other cops got out of car and pat-frisked co-D and found the loaded weapon o Issue = Not whether police conduct objectively communicated police desire to speak with D or to ask him a question Rather it is whether

their conduct indicated that they interfering with his liberty to such an extent that he was not free to leave o Holding = Not a seizure merely an encounter o Rule = Only seizure if police conduct, when viewed in totality of circumstances, must objectively communicate that officer is exercising his official authority to restrain the persons liberty of movement o Rationale = Here, in view of all the circumstances there were no flashing lights, officer pulled over before he called out to D, he remained in the car the entire time and he never asked D to stop instead he asked him what he was doing out that late = no objective communication to restrain Ds liberty Bus Sweeps: U.S. v. Drayton (2002): Florida v. Bostick Rule = 4th permits police to approach bus passengers at random and ask them questions and request their consent to searches, provided a reasonable person would understand that she is free to leave Issue = Whether police must advise passengers during these encounters of their right not to cooperate? Rule = as long as not coercive dont have to advise them that they dont have to consent being on a bus doesnt give them special status

State of Mind Required for a Stop: Brower v. County of Inyo (1989): Police set up road block to catch fleeing suspect and he crashed into the roadblock and died Rule = it is a seizure when there is a governmental termination of freedom intentionally applied The Suspect Who Does Not Submit: CA v. Hodari (1991): Cops saw group of kids huddled around a car who fled when saw cops D threw a rock away while officer was chasing him Officer tackled him cuffed him and radioed for assistance cop then found that rock was coke D says that the pursuit was a seizure because no legal cause for suspicion so 4th violation should suppress evidence Issue = is the evidence fruit of the stop or encounter? Court: o 2 types of seizures: (1) Those in which cop has physically touched the citizen If touching is intentional = seizure (2) No physical force used There must be actual submission for it to be a stop and that reasonable person would feel free to leave Crim Pro: Class 9

Grounds for a Stop: Reasonable Suspicion: Reasonable suspicion = degree of suspicion required to make a stop 2 questions asked to determine if reasonable suspicion exists: o (1) Court must investigate source of info upon which reasonable suspicion based o (2) Court must evaluate whether that info is sufficiently suspicious to justify a stop o ** Nervousnes + high crime area reasonable suspicion factors Anonymous Tip Alabama v. White (1990): Rule = An anonymous informants tip that was significantly corroborated by police investigation provides reasonable suspicion for a stop Facts = o Police got a call from anonymous person saying that D would be leaving a particular apt at a certain time, described the exact car D would get into told police exactly where the car would be heading and said that D would be holding a brown case with coke in it o Cops went to apt saw man get into the described car he was not holding the case and followed him as he drove to described location and stopped car before he got there looked in car and saw brown case with drugs in it Court: o Applied totality of the circumstances test to find that tip + police corroboration of seeing man get in described car and driving to described location reasonable suspicion Based on fact that caller was able to predict Ds future behavior which shows that caller had inside info as to Ds illegal activities When significant facts of callers tip were verified police able to believe that caller was reliable and well informed reasonable suspicion to justify stop Anonymous Tips Concerning Gun Possession: Florida v. J.L. (2000): Issue = Whether an anonymous tip that person is carrying gun is, without more, sufficient to justify a police officers stop and frisk of that person Holding = Not sufficient Facts: o Anonymous caller calls police and says that there is a black male on a particular street corner in a plaid shirt thats carrying a gun There is no recording of this call, dont know who the caller is or his location Cops go to corner 6 minutes later and see black male matching the description (standing with 3 other males) approach him and told him to put his hands up and frisked him and seized a gun D had not made any unusual movements, made no threats, not did officers see a gun on him other than tip there is no other evidence of reasonable suspicion

Rule = Anonymous tip can only be basis for reasonable suspicion only if accomplished by specific indicia of reliability, such as the correct forecast of subjects not easily predicted movements o That allegation in tip turns out to be true doesnt suggest that cops, prior to frisk, had reasonable suspicion to justify stop Reasonableness of official suspicion must be measured by what cops knew before the search An accurate description of subjects readily observable location and appearance is reliable in limited sense: helps identify person to police whom tipster accuses o Such a tip does not show that tipster had knowledge of concealed criminal activity o Analysis: Tip here provided no such predictions nor did it contain any other qualifying indicia of reliability Reasonable suspicion requires that a tip be reliable in its assertion of illegality not just in its tendency to indentify a determinate person

J.L. and a Tip About Reckless Driving: What is reasonable suspicion for anonymous tip that calls in a reckless driver and police see driver but hes no longer driving recklessly? Rule = There is reasonable suspicion to stop a supposed reckless driver out of fear for public safety dont have time to allow drunk driver to keep driving because he may kill someone J.L. + Anonymity: Court in JL distinguishes between known informants (whose tips can be sufficient without corroboration) and anonymous ones Justice Kennedy points out that under certain circumstances the identity of a tipster may be unknown but the informant is not really anonymous U.S. v. Heard (11th Cir.) o Officer saw D and woman having an argument at the train station and woman accused D of owing her $ - officer intervened and D admitted to owing her $ - cop told him to pay her which he did and then he walked away o Woman then told cop that D was carrying a gun officer told woman to stay at train station to make a statement and went after D Woman jumped on train and never seen again while cop frisked D and found the gun Govt. said that tip was not really anonymous because there was a face to face encounter with woman that led to frisk o Rule = Face to face anonymous tip presumed to be more reliable than an anonymous phone tip because the officers receiving the info have an opportunity to observe the demeanor and perceived credibility of the informant

Here cop saw that woman was frightened D admitted he owed her $ and it was clear that the 2 people knew each other cop had reasonable belief that woman had reliable info that he had a gun

J.L. Anonymity Quantum of Suspicion: U.S. v. Cortez (1981) =test for determining whether reasonable suspicion exists for any given set of circumstances: o Totality of the circumstances must be taken into account Based upon whole picture detaining officers must have a PARTICULARIZED and OBJECTIVE basis for suspecting the particular person stopped of criminal activity Particularized suspicions contains 2 elements each must be present before a stop is permissible o (1) The assessment must be based upon all the circumstances Analysis proceeds with various objective observations, info from police reports (if available) and considerations of the modes of patterns of operation of certain kinds of criminal activity from this data trained officers can draw inferences and makes deductions inferences and deductions that would elude an untrained person This is based on probabilities not hard certainties o (2) Process described in element 1 must raise a suspicion that the particular individual being stopped is engaged in wrongdoing Comparison to Probable Cause: o Terry stop less intrusive than an arrest so could be justified on lesser showing of proof that probable cause needed to support an arrest standards are materially different o There are many cases where reasonable suspicion existed but not probable cause to arrest o Ex: US v. Anderson reasonable suspicion but not probable cause existed where D was seen leaving house where narcotics sold twice, parked his car few blocks from house, near truck where narcotics stored because D was arrested rather than stopped evidence obtained from arrest was suppressed o In determining reasonable suspicion use similar analytical framework used in assessing probable cause: Look at common sense of facts presented give deference to expertise of law enforcement who may know through experience that certain facts are indications of criminal activity consider the totality of the circumstances because while each fact alone may

seem innocent factors considered in their totality may not be so easily explained as innocent o Ex: US v. Windsor reasonable suspicion upheld where bank robbers fled to 40 room hotel and officers searched every room until they found them because only 40 rooms greater probability that their search would find them (not so if there was 600 room hotel) However because there was only reasonable suspicion and not probable cause evidence found in search of hotel room was suppressed U.S. v. Arvizu (2002) Assessment of Probabilities: D stopped by border patrol agent who observed D driving in minivan on unpaved road that was seldom traveled on road that is used by illegals to avoid road where there is boarder checkpoint Agents have roving patrol to patrol this area as well as sensors which alert agents to movement on these roads Sensors alerted agent because it meant that someone could be trying to circumvent roadblock + it occurred during agent shift change when area would be unpatrolled (smugglers were known to case the place to know when shift changes occur) Cops saw van which slowed when he saw agent there was man and woman and 3 kids and kids knees seemed higher than they should be like they were sitting on top of cargo Driver looked stiff and rigid and tried to avoid looking at agent and tried to pretend he wasnt there kids nor driver smiled and waived at agent like regulars traveling this road do who appreciate the supervision Agent started following them more closely and kids started waiving strangely like they were being instructed to Driver then quickly turned at place right before you could turn to avoid checkpoint cop check registration of car and found that it was registered in Douglas (city 4 miles from border known as smuggling place) Agent then stopped vehicle and asked if he could look inside and search driver agreed and agent found $100 k worth of marijuana Court = totality of circumstances and deference to inferences drawn by agents = reasonable suspicion ** Look at other cases in book where reasonable suspicion found Reasonable Suspicion of a Completed Crime: U.S. v. Hensley (1985): Facts: o Few days after robbery of tavern cop interviewed CI who said that D drove the getaway car cop got written statement from CI and issued a wanted flyer to other precincts in the area o Flyer said that D was wanted for investigation in aggravated robbery, described him, gave date and location of robbery, warned that he should be considered armed and dangerous and asked other departments to pick him up and hold him

o In another area cop who heard about flyer stopped a car with D in it but let him drive away but inquired whether there was a warrant for his arrest and 2 other cops said there may be o One cop saw him and pulled him over with his gun drawn while another cop approached car and saw that the passenger who was a known felon had a gun under his seat arrested passenger and searched car o Another gun found and D arrested Rule = Terry not confined to prospective crimes extended to investigate completed crimes o Approves stops where police have a reasonable suspicion, grounded in specific and articulated facts, that a person they encounter was involved in or is wanted in connection with a completed felony o Relies on collective knowledge doctrine established in Wheatley v. Ward = one department or cop could act to make a stop if another cop or department had reasonable suspicion to stop D and asked for assistance (I CARD??)

Reasonable Suspicion and Flight from Police Illinois v. Wardlow (1979): D fled upon seeing police who were in a known drug area When cops caught up to him they patted him down in a search for weapons because drug carriers are known to have weapons They found a gun and arrested him Rule = individuals presence in known drug area is not enough to stop him but cops are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation stop made in known crime area is among contextual considerations in a Terry analysis Here it wasnt just his presence in known crime area it was the unprovoked flight upon seeing police that led to police suspicion Flight, wherever it occurs = consummate act of evasion not necessarily indicative of wrongdoing but it does suggest such Court doesnt have empirical studies to prove this so determination is based on commonsense judgment and inference of human behavior Race + Reasonable Suspicion: City of St. Paul v. Uber (Minnesota court) = race is not a factor for reasonable suspicion U.S. v. Weaver (8th) = race can be a factor race coupled with other factors, although unpleasant cops should be able to consider it US v. Avery (6th) = race in encounters is protected by equal protection clause in cops choosing who to encounter (rare argument) o 4th amendment does not protect against racially discriminative encounters Profiles:

In general = list of characteristics of various criminals stop someone who matches many of the characteristics Courts say profiles are ok, but dont give more or less weight based on profile Looks at only if they have enough reasonable suspicion to stop someone

Crim Pro Class 10 STOP v. Arrest Frisk Cannot be Used to Search for Evidence Minnesota v. Dickerson (1993): Facts = cop, suspecting drug activity, conducted lawful stop and patdown and felt a hard object but knew it wasnt a gun but still squeezed and prodded object which he believed to be coke pulled it out and found that it was coke Rule = Terry frisks are justified ONLY FOR PROTECTIVE PURPOSES and that search for evidence isnt permitted under Terry Here officer overstepped bounds of the strictly circumscribed search for weapons allowed under Terry o The cops continued exploration of Ds jacket after concluding there was no weapon was unrelated to the sole justification of the search under Terry protection of police and those near by Protective Searches Beyond the Suspects Person: Michigan v. Long (1983): Facts = D stopped by cops who saw him driving eratically before he swerved into ditch o When cops stopped, D was out of his car and appeared to be under the influence of drugs or alcohol o D didnt respond to initial requests for license and registration and began to walk to passenger side o Cops flashed light in his car and saw a hunting knife o Protective search was conducted in the passenger compartment and pot was found and seized Rule = Power to search under Terry can extend to protective examinations of areas beyond the suspects person Reasoning = Terry permits a limited examination of an area from which a person, who cops reasonably believe to be dangerous, might gain control of a weapon o While here D may not have been actually able to reach the weapon a stop is only a temporary intrusion, the suspect will be permitted to reenter his vehicle and will then have access to any weapons inside cops reasonably could have concluded that once stop completed, D could have then gone back to car and used weapons on cops permitted cursory search of area NY Court of Appeals Rejects Long as Matter of State Con Law People v. Torres (1989): Held that it is unlikely that after a stop, a suspect will get back in the car and use his concealed weapon on the departing officers

Lower Courts Applying Long: U.S. v. Brown (8th) = upheld search of locked glove compartment when officers had reasonable suspicion of drug activity o Court reasoned that since weapons and violence are often associated with drug transactions cops reasonably believed person who they were dealing with was armed and dangerous U.S. v. Johnson (5th) = held that Long is not limited to protective searches of cars o Upheld cursory inspection of a pair of overalls a few feet away from suspect who appeared to be burglarizing a house o Court found that merely separating the suspect from his effects during stop would not provide sufficient protection for the cops, since if the stop was terminated they would have to return the property to D Protective Searches of Persons Other than Suspect: Ybarra v. Illinois (1979): Issue = whether cops can frisk people other than suspect Here court refused to uphold search of bar patron who happened to be present when cops arrived to search bar with valid search warrant Court noted that patrons mere presence in bar was not enough to provide a reasonable belief that he posed risk of harm to cops and that no specific facts were shown to indicate that D was armed and dangerous Note DC court found that frisk of other persons more likely to be reasonable when they are in small private residence where drugs are found Inspecting Objects During Course of Protective Frisk: Dickerson holds that cops can only inspect object if they believe its a weapon Issue that arises is whether or not they believe the object is a weapon U.S. v. Swann (4th): o Cops responded to report of theft of a wallet in an office building where employees held suspect but he broke free and was seen throwing wallet to 2 black males who caught wallet and ran o Cops spotted three black males in building basement garage and they seemed nervous and edgy and when cops asked to speak with them one circled around cop cop felt threatened called for back up an when back up came they patted suspect down and felt object in his sock that they thought was sharp box cutter instead turned out to be the stolen cc o D moved to suppress cc as found illegally o Court upheld search because all the circumstances taken together reasonably led cop to believe that hard object was a weapon Protective Sweeps: Maryland v. Buie (1990): Facts = cops had probable cause to believe that D and his associate committed an armed robbery and they arrested D at his home o After the arrest they conducted a protective sweep of the premises in which they found clothes linking him to robbery

o At time of sweep, cops had reasonable suspicion but not probable cause to believe that a dangerous person such as Ds associate may be hiding in the home o D said that protective sweep could not be conducted without probable cause Court: o Defined protective sweep as = quick and limited search of a premises, incident to an arrest and conducted to protect the safety of cops and others o Court relied on Terry and Long to find that protective sweep can be justified by reasonable suspicion that area swept harbored person who was dangerous and posed threat to cops and others o Reasoned that protective sweep is a limited intrusion because it can extend only to a cursory inspection of those spaces where a person may be found and the sweep can last no longer than is necessary to dispel the reasonable suspicion of danger o Stevens concurrence says that protective sweep cant be done for purposes of searching for evidence however, in practice this is not true o In a protective sweep if there is justification for the sweep, they can seize any evidence that is in plain view of where they are sweeping that appears to be an instrumentality of a crime

Protective Sweeps other than During an Arrest: Courts have held that self-protective principles of Buie and Terry can permit a protective sweep even when no arrest involved If the cops are acting in the course of legal activity and they have reasonable suspicion to believe that person in the area can obtain access to a weapon and use it on the officers cops permitted to conduct protective sweep for weapons Brief and Limited Detentions: Line between Stop and Arrest: Terry allows stop on standard of proof less than probable cause because less intrusive than arrest but question as to when stop becomes an arrest requiring probable cause Various factors found by courts (1) Forced Movements of the Suspect to a Custodial Area: a. In FL v. Royer cops took D into private room where D consented to search of his luggage and court found that search was invalid because it was obtained as result of arrest without probable cause b. Rule = an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop i. The investigative methods used should be the least intrusive means reasonably available to verify or dispel cops suspicion in a short period of time ii. It is the states burden to prove that seizure it seeks to justify on basis of reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure

c. Probable cause is required if cop forces suspect to move in order to further the investigation or to place more pressure on suspect (2) Forced Movement for Identification Purposes: a. Court says that officers can, within Terry confines, force suspect to move for purposes of safety and security b. Courts have also found that if reasonable suspicion exists it is permissible to transport suspect a short distance for purposes of identification by witnesses (show up) c. People v. Hicks (NY) = found that coercive movement of suspect to the crime scene for purpose of witness ID was within confines of permissible Terry stop (suspect detained only for short time) (3) Investigative Techniques that are Permissible Within Confines of Terry Stop: a. Purpose of Terry stop is to permit an officer to investigate facts on which reasonable suspicion is based in order to determine whether suspect is involved in criminal activity it allows for some prelim investigation to clear up or develop reasonable suspicion permissible b. Probable cause required if cops are using stop for some purpose beyond whats allowed in Terry c. Most common investigating techniques allowed under Terry = prelim investigation of suspects identity and questioning concerning the suspicious circumstances giving rise to stop d. Cop may also verify info obtained from suspect by communicating with others or by conducting prelim investigation such as vehicle registration check, license check or a computer search for outstanding warrants e. Cops allowed to detain suspects on reasonable suspicion in order to conduct canine sniffs f. U.S. v. Washington (9th) Terry stop became arrest where cops extended detention with apparent purpose of obtaining consent of suspect to search premises for drugs i. Court held that Terry stop is not unconstitutional so long as it is brief and minimally intrusive ii. Here detention by 6 cops was not brief or minimally intrusive, they patted him down and found no drugs or weapons - as they continued to ask him questions about whether he had a meth lab in his room and kept trying to get him to consent to search of his room in order to avoid getting a warrant iii. Relies on test they made in U.S. v. Miles = stop becomes arrest if the detention exceeded a brief stop, interrogation, and, under the proper circumstances, a brief check for weapons. Then if the stop proceeds beyond these limitations, an arrest occurs, if under the circumstances, a reasonable person would conclude that he was not free to leave after brief questioning Criminalizing the Refusal to Provide ID During Terry Stop Hiibel v. Sixth Judicial District Court of Nevada (2004):

D was stopped on reasonable suspicion of being involved in domestic assault where he refused to provide ID but didnt contest the stop Court held that officer has a right to demand ID as part of an investigation in a Terry stop demand for ID is a routine question and an accepted part of a Terry stop Obtaining ID serves important government functions and it has immediate relation to purpose, rationale and practical demands of Terry stop Rule = A cop cant arrest a person for not giving him ID if the request for ID is not reasonably related to the circumstances justifying the stop Here it was related

(4) Overly Intrusive Investigation Techniques: a. Most obvious example = search for evidence which requires probable cause b. Some courts hold that probable cause required before suspect can be subjected to battery of tests to see if hes intoxicated c. However roadside sobriety tests that are less demanding are permissible under Terry (5) Investigation of Matters Other than the Reasonable Suspicion that Supported the Stop: Stop after a Stop: a. Many courts have held that Terry stop must end when the reason for the stop has come to an end b. If the reasonable suspicion supporting the stop has been cleared (ID checks out) or person has been processed (traffic ticket issued) stop ends and suspect must be released c. Ex: person stopped for traffic infraction cannot continue to be held by cop in order for cop to investigate for drug or gun crimes, in the absence of reasonable suspicion to support such an independent inquiry d. However if in course of investigating crime A the cop obtains reasonable suspicion to investigate crime B detention can be extended to investigate crime B even though justification for initial stop ends permissible stop after stop Consentual Encounters After Stop has Ended: If suspect is simply asked about another crime while initial stop is ending can there be a permissible encounter after a stop? Ohio v. Robinette (1996): o D legally stopped for speeding and given a warning and after cop returned Ds license, he asked him if he was carrying and weapons and contraband upon which D answered no, cop asked if he could search car and D consented found drugs in car o Court = D voluntarily consented and rejected any brightline rule that suspect must be told stop is over and he is free to leave Test is based on totality of circumstances (6) Interrogation and Finger Printing:

a. Interrogation beyond Terry: i. Dunaway v. NY (1979) Court distinguished Terry stops from cases in which police detain a suspect for sustained interrogation (WADE-DUNAWAY HEARING ask at work) 1. Court emphasized that Terry was a narrow decision and that police cannot detain a suspect and transport him to the stationhouse for questioning without probable cause even if detention is not deemed an arrest under state law and there would be no arrest record or formal booking procedure ii. Kaupp v. Texas cant go into someones home and ask them to come with cop to station even if they consent need probable cause plus warrant b. Fingerprinting Davis v. Mississippi (1969): i. Court held that round-up of 25 black youths for questioning and printing in effort to match prints found on rape victims window violated 4th 1. Judge found that it is arguable that finger printing, in narrow circumstances, could be found to be within 4th because they are not so intrusive, reliable and can be done fast, and dont offer opportunities for harassment 2. Here printing was a violation of 4th because D was unnecessarily required to undergo 2 printing sessions and he was also subject to interrogation ii. Hayes v. Florida (7) Time limits on Terry Stops U.S. v. Sharpe (1985): a. (8) Show of Force During a Terry Stop: a. Courts have routinely relied on Terry and Adams to uphold use of handcuffs and guns where there is reasonable suspicion to believe that they are necessary to protect the officer from harm during the course of a stop (9)