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CRIMINAL P ROCEDURE P R E-T RIALSpring 2010 / Prof. Lowery / Joshua R . C ollums

C riminal Procedure: Investigating Crime (3 Ed.) by Dressler and Th omasrd

I. T H E C R I M I N A L P R O C E S S:FA I L U R E, C H O I C E S, AN D LE G I T I M A C Y

A. Failures

1. Powell v. A labamaa. It is hardly necessary to say that, the right to counsel being conceded, a defendant

shou ld be afforded a fair opportun ity to secure counsel of his own choice. N ot

only was that not done here, but such designation o f counsel as was attempted

was either so indefinite or so close upon the trial as to amo unt to a den ial of

effective and substantial aid in that regard.

b. It has never been doubted by this court, or any other so far as we know, that

notice and hearing are preliminary steps essential to the passing of an enforceable

judgment, and that they, together with a legally competent tribunal having

jurisdiction o f the case, con stitute basic elements of the constitutional requiremen t

of due process of law.

c. What then does a hearing include? Historically and in practice, in our own

country at least, it has always included the right to the aid of counsel when

desired and provided by the party asserting the right. T he right to be heard

would be, in many cases, of little avail if it did not comprehend the right to be

heard by counsel.

B. Seeking Legit imacy in the Fourteenth Amendment**

C . T he N o rm s o f th e C rim in al P ro cess* *

D . D oes the Process Pro tect the Innocen t**

II. FO U R T H AM E N D M E N T : AN O V E R V I E W

T he 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 W arrants shall issue, but upon probable cause, supported by O ath or affirmation,

and particularly describing the place to be searched, and the persons or things to be seiz ed.

Fourth Amendment

A. T he T ext and Its M ysteries

1. The Fourth Amendment

a. The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable search and seizures, shall not be violated, and n o W arrantsshall issues, but upon probable cause, supported by O ath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.

B. T he Fou rth Am en dm en t an d th e States

1. W olf v. C olorado, 338 U .S. 25 (1949)

a. The Due Process Clause of the Fourteenth Amendment exacts from the States for

the low liest and th e most outcast all that is implicit in the concept o f ordered

liberty.

b. R epresenting as it does a living principle, due process is not confined within a

permanent catalogue of what may at a given time be deemed the limits or the

essentials of fundamental rights.

c. The security of ones privacy against arbitrary intrusion by the policewhich is at

the core o f the Fourth Am endm entis basic to a free society. It is thereforeimplicit in the concept of ordered liberty and as such en forceable against the

States throu gh the Du e Pro cess Clause.

2. Despite the holding of W olf, the Court affirmed the convictions on the ground that the

Due Process Clause does notrequire state courts to exclude evidence obtained in violation

of the Fourteenth Amendment.

C . T he R e ach o f th e Fo urteen th Am en dm en t

1. Searched Party the people

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a. United States v. V erdugo-U rquidez , 494 U.S. 259 (1990)

(1) A search or seizure of property located in a foreign country, which is

owned by a nonresident alien who is only briefly on U.S. soil, is not

covered by the Amendment, even if the search is conducted by U.S. law

enforcement agents.

(2) Sufficient C onnection R equired

(a) The words the people refer to a class of persons who are part

of a national community or who have otherwise developed

sufficient connection with this country to be considered part of

that commun ity.

b. Undecided were the instances of whether the Fourth Amendment applies if non-

citizens involuntary stay in the U nited States were to be prolongedby a prison

sentence for example. Also, whether, and to what extent, the Fourth

Amendmen t pro tects a person voluntarily but unlawfully living in this country,

i.e., one wh o has presumably accepted some societal obligations. Also open is the

issue of the scope of rights of non- U .S. citizens lawfully in this count ry

temporarily or with the intention of becoming citizens.

c. N on-U.S. citizens residing in other countries suspected of planning criminal

activities in the U nited States or against U .S. interests on foreign land are not

protected by the Fourth Amendment.

2. Searching Partya. Burdeau v. McDowell, 256 U .S. 465 (1921)

(1) Fourth Amendment only limits governmental action. It does not reach

private searches or seizures.

(2) The Amendment is implicated if there is a police instigation or

participation, such as when an officer requests a landlord to search

through her tenants belongings or assists in the process.

D . T he Birth of th e Exclu sio nary R u le

1. A dams v. N ew York, 192 U .S. 585 (1904)

a. Supreme Court initially held that testimony clearly competent as tending to

establish the guilt of the accused of the offense charged may be retained by the

Govern men t and used at a defendants trial.

2. W eeks v. United States, 232 U.S. 383 (1914)

a. The tendency of those who execute the criminal laws of the country to obtain

conviction by means of unlawful seizures and enforced confessions, he latter often

obtained after subjecting accused persons to unw arranted practices destructive o f

rights secured by the Federal Constitution, should find no sanction in the

judgments of the courts which are charged at all times with the support of the

Constitution and to which the people of all conditions have a right to appeal for

the m aintenance of such fundamental rights.

b. Court excluded the letters seized by the United States Marshall and ordered them

restored to the defendant.

c. Court held that as to the papers and property seized by the policemen, it does not

appear that they acted un der any claim of Federal authority such as wou ld make

the Amendmen t applicable to such unautho rized seizures. The Fourth

Amendmen t is not d irected at the individual misconduct of such officials. Its

limitations reach the Federal Governm ent and its agencies.

3. Silver platter doctrinea. W eeks only applied the exclusionary ru le to evidence seized under federal

authority. This left local police free to con duct unreasonable search and seizures

and then deliver the evidence to federal prosecutors on a silver platter.

b. Byars v. United States, 273 U.S. 28 (1927)

(1) Silver platter doctrine did not apply to evidence obtained unlawfully

during a search that in substance and effect was a joint state-federal

venture.

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4. W olf v. C olorado (see above)

a. Court held that in a prosecution in a State court for a State crime the Fourteenth

Amendment does not forbid the admission of evidence obtained by an

unreasonable search and seizure.

b. O n ly sixteen states at th e tim e o f W olfhad adopted the W eeks exclusionary rule.

c. States were free to meet the minimum standards assured by the Due Process

Clause with other methods which, if consistently enforced, would be equally

effective.

5. R ochin v. C alifornia, 342 U.S. 165 (1952)

a. Court held that this was conduct which shocks the conscience.

b. Illegally breaking into the privacy of the petitioners, the struggle to open his

mouth and remove what was there, the forcible extraction of his stomachs

contentsthis course of proceeding by agent of government to obtain evidence is

boun d to offend even hardened sensibilities. They are methods to close to the

rack and the screw to permit of constitutional differentiation.

6. Mapp v. O hio, 367 U.S. 643 (1961)

a. T h e factu al co nsideratio n u po n w hich W olfwas based (the contrariety of views of

the States on the adoption of the exclusionary rule ofW eeks) was no longer true.

At the time ofMapp, m ore than half the states had adopted W eeks.

b. Court holds that all evidence obtained by searches and seizures in violation of the

C onstitution is, by th at same authority, inadm issible in state cou rt.III. P A SS IN G T H E T H R E S H O L D O F T H E FO U R T H AM E N D M E N T

A. W hat is a Search?

1. General Principles

a. Katz v. U nited States, 389 U .S. 347 (1967)

(1) The Fourth Amendment protects people, not places. What a person

knowingly exposes to the public, even in his own home or office, is not

a subject of Fourth Am endm ent protection . But what he seeks to

preserve as private, even in an area accessible to the public, may be

constitutionally p rotected.

(2) One who occupies a phone booth, shuts the door behind him, and pays

the toll that permits him to place a call is surely entitled to assume that

the words he utters into the mouthpiece will not be broadcast to the

world. To read the Co nstitution more narrowly is to ignore the vital

role that the public telephone has come to play in private

communication.

(3) The Fourth Amendment governs not only the seizure of tangible items,

but ext ends as well to the recording o f oral statements, overheard

withou t any technical trespass under local property law.

(4) The Governments activities in electronically listening to and recording

the petitioners words violated the privacy upon which he justifiably

relied while using the telephone booth and thus constituted a search

and seizure within the meaning of the Fourth Amendment.

(5) Justice Harlans C oncurrence

(a) My understanding of the rule that has emerged from prior

decisions is that there is a twofold requ irement:

i) First , that a person have exhib ited an actual

(subjective) expectation of privacyii) Second, that the expectat ion be one that society is

prepared t o recognize as reasonable.

2. The Katz Doctrine in Application

a. United States v. W hite, 401 U .S. 745 (1971)

(1) Katz involved not revelations to the Government by a party to

conversations with the defendant nor did the Court indicate in any way

that a defendant has a justifiable and constitutionally protected

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expectation that a person with whom he is conversing will not then or

later reveal the conversation to the p olice.

(2) U n affected b y th e h oldin g o f Katz :

(a) H offa held that ho wever strongly a defendant m ay trust an

apparent colleague, his expectations in this respect are not

protected by the Fourth Amendment when it turns out that the

colleague is a government agent regu larly comm unicating with

the authorities.

(b) Lewis held that no w arrant to search and seize was required

when the Government sends to defendants home a secret agent

who conceals his identity and makes a purchase of narcotics

from th e accused.

(c) Lopez held the same where the same agent, unbeknownst to

the defendant, carries electronic equipment to record the

defendants words and the evidence so gathered is later offered

in evidence.

(d) O n Lee v. United States (Co urt places emphasis here)

i) In vo lved facts very sim ilar to W hite in that the

informer was simultaneously transmitting the

information. Pre-Katz court held that there was no

trespass and therefore no search.ii) However, the court also held that overruling the

trespass-search line of cases would be of no use to the

defendant because he was talking confidentially and

indiscreetly with one he trusted, and he was

overheard. It wou ld be a dubiou s service to the

genuine liberties protected by the Fourth Amendment

to make them bedfellows with spurious liberties

impro vised by farfetched analogies which w ould liken

eavesdropping on a conversation, with the connivance

of one of the parties, to an unreasonable search or

seizure.

(e) Police officer may write down his conversations with defendant

and testify concerning them. N o difference when :

i) simultaneously records them with e lect ronic

equipment which he is carrying

ii) carries radio equipment and simultaneously transmits

the conversations with to recording equipment

elsewhere or to agents monitoring the conversation.

b. Smith v. Maryland, 442 U.S. 735 (1979)

(1) Application of the Fourth Amendment depends on two questions:

(a) First, whether the individual, by his conduct, has exhibited an

actual (subjective) expectation of privacy.

(b) Second, whether the individuals subjective expectation of

privacy is one that society is prepared to recognize as

reasonable.

(c) However, in some situations, where an individuals subjective

expectations have been conditioned by influences alien towell-recognized Fourth Amendment freedoms, those subjective

expectations obviously could p lay no meaningful role in

ascertaining what the scope of the Fourth Amendment

protection was. In determining wheth er a legitimate

expectation of privacy exists in such cases, a normative inquiry

would be proper.

(2) First (subjective prong), it is too much to believe that telephone

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subscribers, under these circumstances, harbor any general expectation

tat the nu mbers they dial will remain secret.

(3) Second (objective prong), even if petitioner did harbor some subjective

expectation that the phone numbers he dialed would remain private, this

expectation is not one that society is prepared to recognize as reasonable.

c. United States v. K notts, 460 U.S. 276 (1983)

(1) Federal agents installed a beeper which emitted periodic signals in drum

of chloroform purchased by the defendant. Police mo nitored

defendants movements along public roads to a secluded cabin in

W isconsin.

(2) A person traveling in automobile on public thoroughfares has no

reasonable expectation of privacy in his movem ents from one place to

another. T he defendant voluntarily conveyed to anyone who wanted to

look the fact that he was traveling over particular roads in a particular

direction, the fact of whatever stops he made, and the fact of his final

destination when he exited from public roads onto private property.

(3) Nothing in the Fourth Amendment prohibited the police from

augmenting the sensory faculties bestowed upon them at birth with such

enhancement as science and technology afforded them in this case.

d. United States v. Karo, 498 U.S. 705 (1984)

(1) Alm ost th e sam e facts as Knotts except that agents monitored thetracking device in the defendants home, as well as in tw o o ther h ouses.

(2) A warrantless monitoring of a beeper in a private residence, a location

not open to visual surveillance, violates the Fourth Amendment rights of

those who have a justifiable interest in the privacy of the residence.

(3) Private residences are place in which the individual normally expects

privacy free of governmental intrusion not authorized by a warrant, and

that expectation is plainly one that society is prepared to recognize as

justifiable.

(4) T he case is not like Knotts where the beeper told the authorities nothing

about the interior of the defendants cabin.

e. United States v. Place, 462 U.S. 696 (1983)

(1) Manner is which information is obtained through this investigative

techn ique (sniffing dog) is mu ch less intrusive that a typical search. T he

sniff discloses only the presence or absence of narcotics, a contraband

item.

(2) A canine sniff is sui generis.

f. Illinois v. C aballes, 543 U.S. 405 (2005)

(1) C ourt reaffirmed Place stating that any interest in possessing contraband

cannot be deemed legitimate. T he expectation that certain facts will not

come to the attention of the authorities is not the same as an interest in

privacy that society is prepared to consider reasonable.

(2) J. Souters D issent

(a) Sniffing dogs are indeed fallible and Places needs to be

reconsidered in light of this.

g. O p en Fields, C urtilages, and Beyo nd

(1) O pen Fields

(a) H ester v. U nited States, 265 U.S. 57 (1924)i) O pen Fields Doctrine: entry of an open field does not

implicate the Fourth Am endment.

(b) O liver v. United States, 466 U.S. 170 (1984)

i) Court he ld that the open fie lds doct rine remains good

law even after Katz .

ii) N eed not be unoccupied or undeveloped

a) An open field may include any unoccupied

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or u ndeveloped area ou tside of the curtilage

of a hom e. An open field need be neither

open nor a field as those terms are used in

common speech. For example, a thickly

wooded area nonetheless may be an open

field as that term is used in construing the

Fourth Amendment.

ii i) The special protection accorded by the Fourth

Amendment to the people in their persons, houses,

papers, and effects, is not extended to t he o pen fields.

iv) Open fields do not provide the sett ing for those

intimate activities that the Amendment is intended to

shelter from governm ent interference or surveillance.

(2) C urtilage

(a) Curtilage is the land immediately surrounding and associated

with the home.

(b) United States v. Dunn, 480 U.S. 294 (1987)

i) Questions regarding curtilage should be resolved with

reference to four factors:

a) Proximity of the area claimed to be curt ilage

to the home.b ) W hether the area is included w ith in an

enclosure surrounding the home.

c) The nature o f the u ses t o w hich the area is

put.

d ) Steps t aken by the residen t t o p ro tect the

area from observation by people passing it.

(c) It does not follow from the fact that an area is identified as

curtilage that police surveillance of it inevitably constitutes a

search.

i) Aerial surveillance

a) C alifornia v. C iraolo, 746 U .S. 207 (1986)

1 ) That the area is w ith in the cu rtilage

does not bar all police observation.

The Fourth Amendment protection

of the home has never been

extended to require law

enforcement officers to shield th eir

eyes when passing by the home on

public thorou ghfares.

2) N or does the m ere fact that an

individual has taken measures to

restrict some views of his activities

preclude an officers observations

from a public vantage point where

he has a right to be and which

renders the activities clearly visible.

b) Florida v. R iley, 488 U .S. 445 (1989)1) R i ley co uld n ot reaso nab ly h ave

expected the contents of his

greenhouse to be immune from

examination by an officer seated in

a fixed-wing aircraft flying in

navigable airspace at an altitude of

1,000 feet.

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c) Dow Chemical Co. v. United States, 476 U.S.

227 (1986) Precursor to Kyllo.

1) It m ay w ell be, as th e G overn men t

concedes, that surveillance of

private property by using highly

sophisticated surveillance equipment

not generally available to the public,

such as satellite technology, might

be con stitutionally pro scribed by a

warrant. But the photo graphs here

are not so revealing of intimate

details as to raise constitutional

concerns.

2) T he m ere fact th at h um an visio n is

enhanced somewhat does not give

rise to constitutional problems.

ii) C alifornia v. G reenwood, 486 U.S. 35 (1988)

a) A person does have a reasonable expectat ion

of privacy in garbage left outside the curtilage

of a home for trash removal.

h. Kyllo v. United States, 533 U.S. 27 (2001)(1) At the very core of Fourth Amendment stands the right of a man to

retreat into his own home and there be free from unreasonable

governmental intrusion. W ith few exceptions, the question whether a

warrantless search of a home is reasonable and hence constitutional must

be answered no.

(2) The permissibility of ordinary visual surveillance of a home used to be

clear because, well into the 20 century, our Fourth Amendmentth

jurispruden ce was tied to common law trespass. Visual surveillance was

unquestionably lawful because the eye cannot by the laws of England

be guilty o f a trespass.

(3) O btaining by sense-enhancing technology any information regarding the

interior of the home that could not otherwise have been obtained

withou t ph ysical intrusion into a constitutionally pro tected area

constitutes a searchat least where (as here) the technology in question is

not in general public use.

i. Bond v. United States, 529 U.S. 334 (2000)

(1) C iraolo and R iley are different from this cases because they involved only

visual, as oppose to tactile, observation. Physically invasive inspection is

simply more intrusive than purely visual inspection.

B. W hat is a Seizure?

1. United States v. K aro, 468 U.S. 705 (1984)

a. A seizure of property occurs when there is some meaningful interference with

an individuals possessory interest in that property.

2. O bjects Subject to Seizure

a. Law enforcement officers may seize what they have probable cause to believe is

criminal evidence.

(1) Contraband (evidence that may not lawfully be possessed by a privateparty)

(2) Fruits of a crime

(3) Instrumentalities used in the commission of an offense (e.g. a weapon, an

automobile for the get-away)

(4) Mere evidence

(a) Item of value to the police solely because it will help in the

apprehension or conviction o f a person for an offense.

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(b) Until 1997, mere evidence could not be seized by the police.

G ouled v. United States, 255 U.S. 298 (1921).

i) Court s reasoning was that the Government could

only seize property if it asserted a property interest

superior to that of the possessor of the property. T he

Government was said to have a superior property

interest in cont raband and fruits and instrumentalities

of criminal activity, but not as to mere evidence.

(c) W arden v. H ayden, 387 U.S. 294 (1967)

i) Supreme Cour t abandoned the mere evidence ru le.

IV. T H E SU B ST A N C E O F T H E FO U R T H AM E N D M E N T

A. Probable C ause

1. Spinelli v. United States, 393 U .S. 410 (1969)

a. A guilars two-pronged test:

(1) Underlying circumstances necessary to enable the magistrate independently

to judge of the validity of the informants conclusion.

(2) Informant credible or his information reliable.

b. T otality of circumstances approach paints with too broad a brush.

c. Can it fairly be said that the tip, even when certain parts of it have been

corrobo rated by independent sources, is as trustwor thy as a tip w hich w ould pass

A guilars tests without independent corroboration?(1) A guilars tests were designed to implemen t the long-standing principle

that probable cause must be determined by a neutral and detached

magistrate.

(2) A magistrate cannot be said to have properly discharged his

constitutional duty if he relies on an informers tip whicheven when

partially corroboratedis not as reliable as one which passesA guilars

requirements when standing alone.

d. In the absence of a statement detailing the manner in which the information was

gathered, it is especially important that the tip describe the accuseds criminal

activity in sufficient detail that the magistrate may know that he is relying on

something more substantial than a casual rumor circulating in the underworld or

an accusation based merely on an individuals general reputation.

(1) Draper v. United States: A magistrate, when confronted with such detail,

could reasonably infer that the inform ant had gained his inform ation in a

reliable way.

2. Illinois v. G ates, 462 U.S. 213 (1983)

a. The totality of the circumstances approach is far more consistent with our prior

treatment of probable cause than any rigid demand that specific tests be satisfied

by every informants tip.

b. Affidavits are normally drafted by nonlawyers in the midst and haste of a criminal

investigation. Technical requirements of elaborate specificity once exacted under

common law pleadings have no proper place in this area.

c. T he rigorous inquiry into the Spinelli prongs and the complex superstructure of

evidentiary and analytical rules that some have seen implicit in our Spinelli

decision, cannot be reconciled with the fact that many warrants arequite

properlyissued on the basis of nontechnical, common-sense judgments of laymen

applying a standard less demanding than those used in more formal legalproceedings.

d. After-the-fact scrutiny by courts of the sufficiency of an affidavit should not take

the form ofde novo review . A magistrates determin ation of probable cause

shou ld be paid great deference by reviewing courts.

e. The task of the issuing magistrate is simply to make a practical, common-sense

decision whether, given all the circumstances set forth in the affidavit before him,

including the veracity and basis of knowledge o f persons supplying hearsay

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information, there is a fair probability that contraband o r evidence o f a crime will

be found in a particular place.

(1) Sufficient information must be presented to the magistrate to allow that

official to determ ine probable cause; his action cannot be a m ere

ratification of the bare conclusions of others. In order to ensure that

such an abdication of the m agistrates duty does not occur, cou rts must

continue to conscientiously review the sufficiency of affidavits on which

warrants are issued.

3. McC ray v. Illinois, 386 U.S. 300 (1967)

a. Due process clause does not require a judge in every probable cause or evidence-

suppression hearing to compel disclosure of the informants identity.

4. Franks v. Delaware, 438 U.S. 154 (1978)

a. Defendant makes substantial preliminary showing that a false statement knowing

and intentional, or w ith reckless disregard for the tru th, w as included by th e

affiant in the warrant affidavit, the Fourth Amendment requires that a hearing be

held at the defendants request.

(1) False statement must be shown by a preponderance of the evidence

(2) After setting aside the false material, the remaining content is insufficient

to establish probable cause

(3) Search warrant must be voided and fruits of the search excluded to the

same extent as if probable cause was lacking on the face of the affidavit.b. Franks does not authorize a special hearing if the defendant claims that the

informantlied to an innocentaffiant.

5. T exas v. B rown, 460 U .S. 730

a. The court stated that the standard for probable cause does notdemand any

showing that such a belief be more likely true than false.

6. United States v. G rubbs, 547 U.S. ___ (2006)

a. Anticipatory warrants are no different that in principle from ordinary warrants.

T hey require:

(1) th at it is n ow pro bable that

(2) contraband, evidence or a crime, or a fugitive will be on the described

premises

(3) w hen the w arran t is execu ted

B. Arrest W arrants

1. Payton v. N ew York, 445 U .S. 573

a. T he Court held in United States v. W atson, 423 U.S. 411 (1976), that as a matter

of Fourth Amendment law, an arrest warrant is not required to make a felony

arrest in a public place.

b. The Fourth Amendment has drawn a firm line at the entrance to the house.

Absent exigent circumstances, that threshold may not be cro ssed.

c. For Fourth Amendment purposes, an arrest warrant founded on probable cause

implicitly carries with it the limited authority to enter a dwelling in which the

suspect lives when there is reason to believe the suspect is within.

2. G erstein v. Pugh, 420 U .S. 103 (1975)

a. W arran tless arrests pu rsu an t to W atson.

b. The Fourth Amendment requires a judicial determination of probable cause as a

prerequisite to extended restraint o f liberty following arrest.

(1) Issue can be determined reliably without an adversary hearing.(2) The standard is the same as that for arrestprobable cause.

c. C ounty of Riverside v. M cLaughlin, 500 U.S. 44 (1991)

(1) In order to satisfy the G erstein timeliness requirement, a jurisdiction m ust

provide a probable cause determination within 48 hours after a

warrantless arrest, absent a bo na fide emergency o r oth er extraordinary

circumstance.

3. Minnesota v. Olson, 495 U.S. 91 (1990)

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a. Exigent C ircum stances

(1 ) H o t pursu it o f a fleeing felon

(2 ) Imminen t destruction o f evidence

(3) Need to prevent a suspect s escape

(4) R isk of danger to the police or to other persons inside or outside the

dwelling

4. Arrests in a Th ird Persons R esidence

a. Steagald v. United States, 451 U.S. 204 (1981)

(1) Arrest warrant is an inadequate safeguard of the third partys

independent Fourth Amendment right to privacy in his own home.

(2) A person whose home is searches for the presence of a guest is entitled,

absent an emergency or consent, to a prior judicial determination of

probable cause to search the premises for the person to be arrested.

C . Search W arrants

1. T he Constitutional D ebate**

2. Elemen ts o f a Valid Search W arran t

a. Lo-Ji Sales, Inc. v. N ew York, 442 U.S. 319 (1979)

(1) The warrant left it entirely to the discretion of the officials conducting

the search to decide w hat items were likely obscene and t o accomplish

their seizure. The Fourth Amendmen t does not permit such action.

N or does the Fourth Amendment countenance such open-endedwarrants, to be complete while a search is being conducted and items

seized or after the seizure has been carried out.

(2) A warrant authorized by a neutral and detached judicial officer is a more

reliable safeguard against improper searches than the h urried judgmen t of

a law en forcement o ffice engaged in the o ften competitive enterprise of

ferreting out crime.

(3) We need not question the subjective belief of the Town Justice in the

propriety o f his actions, but the objective facts of record manifest an

erosion of whatever neutral and detached posture existed at the outset.

b. C oolidge v. N ew Hampshire, 403 U .S. 443 (1971)

(1) Neutral and detached magistrate requirement not met if the person

issuing the warrant is a member of the executive branch, rather than

member of the judiciary.

c. C onnally v. G eorgia, 429 U.S. 245 (1977)

(1) An unsalaried magistrate who receives a fee for each warrant issued, but

no compensation for applications denied, lacks the requisite institutional

detachment.

(2) Therefore, it the official issuing the warrant has apecuniaryinterest

affecting his judgment about w hether to issue a w arrant, he m ay fail to

be a neutral and detached magistrate, in which case the warrant is

ineffective.

d. A ndresen v. Maryland, 427 U.S. 463 (1976)

(1) Search warrant must be read in fair context .

e. G roh v. R amirez , 540 U.S. 551 (2004)

(1) The fact that the application adequately described the things to be

seized does not save the warrant from its facial invalidity. The Fou rth

Amendment by its terms requires particularity in the warrant, not thesupporting documents.

(2) We do not say that the Fourth Amendment forbids a warrant from

cross-referencing other docum ents. Indeed, most C ourts of Appeals

have held that a court may construe a warrant with reference to a

supporting application or affidavit if the warrant uses appropriate words

of incorporation, and if the supporting document accompanies the

warrant.

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3. Execution of a Search Warrant

a. W ilson v. A rkansas, 514 U .S. 927 (1995)

(1) Fourth Amendment prohibition on unreasonable searches and seizures

contains an implicit knock-and-announce rule previously embedded in

the common law.

(2) At the time of the framing, the common law of search and seizure

recognized a law enforcement officers authority to break open the doors

of a dwelling, bu t generally indicated that he first ought to announ ce his

presence and author ity. In this case, we hold that this comm on- law

knock and announce principle forms a part of the reasonableness

inquiry under the Fourth Amendment.

(a) Common-law rule woven into the fabric of early American

law.

(3) Exceptions: Knock-and-announce principle does not apply under

circumstances presenting a threat of physical violence. Similarly, courts have

held that an o fficer may dispense with announ cement in cases where a

prisoner escapes from him and retreats to his dwelling. Proo f of dem and and

refusal was deemed unnecessary to require an officer in pursuit of a

recently escaped arrestee to make an announcement prior to breaking

the door to retake him. Finally, courts have indicated that unanno unced

entry may be justified where police officers have reason to believe thatevidence would likely be destroyed if advance notice w ere given.

b. R ichards v. W isconsin, 520 U .S. 385 (1997)

(1) W isconsin has aper se rule that permitted a blanket exception to W ilsons

knock-and-announce requirement when executing a search warrant in a

felony drug investigation.

(2) Creating exception to the knock-and-announce rule based on the

culture surrou nding a general category of criminal behavior presents at

least two serious concerns:

(a) O vergeneralization

i) Some instances where the asserted governmental

interests in preserving evidence and maintaining safety

may not outweigh the individual privacy interests

intruded upon by a no- knock entry.

ii) Insulates these cases from judicial review (neutral and

detached magistrate).

(b) If aper se exception w ere allowed for each category o f criminal

investigation that included a considerablealbeit

hypotheticalrisk o f danger to officers or destruction of

evidence, the knock- and-announce element of the Fourth

Amendmen t reasonableness requirement wou ld be m eaningless.

(3) Circumstances warranting a no-knock entry cannot remove from the

neutral scrutiny of a reviewing court the reasonableness of the police

decision not to knock and announce in a particular case.

(4) Police must have a reasonable suspicion that knocking and announcing

their presence, under the particular circumstances, would be dangerous

or futile, or that it wou ld inhibit the effective investigation o f the crime

by, for example, allowing th e destruction of evidence.(a) Balance between the legitimate law enforcement concerns at

issue in the execution o f search warrants and the individual

privacy interests affected b y no -knock entries.

c. United States v. Banks, 540 U.S. 31 (2003)

(1) After 15 or 20 seconds without a response, police could fairly suspect

that cocaine wou ld be gone if they were reticent any longer. In short,

an emergency justified th e forcible entry.

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d. Illinois v. McA rthur, 531 U.S. 326 (2001)

(1) Although the Court said that in the ordinary case a warrantless seiz ure of

personal property, just like a warrantless search, is unreasonable, the

Court believed that the warrantless temporary seizure of the premises

here was reasonable. The C ourt po inted to the following circumstances:

(a) The police had probable cause to conduct the search for

contraband

(b) The police had good reason to fear the, unless restrained, the

drugs would be destroyed

(c) The police made reasonable efforts to reconcile their law

enforcement needs with the demands of personal privacy

(d) The length of t ime of the restraint was limited.

(2) N arrow opinion and does not justify all anticipatory warrantless seizures

of personal premises.

e. Maryland v. G arrison, 480 U.S. 79 (1987)

(1) Information that becomes available to officers immediately before or

during the execution of a warrant may require them to cease or narrow

their search, n otwithstanding the d ictates of the warrant.

f. Y barra v. Illinois, 444 U.S. 85 (1979)

(1) A warrant may authorize the search of a person, but it should be

explicit. A warrant to search a hom e or other p remises does not provideimplicit authority to search persons found at the scene, even if the

criminal evidence for which police are looking might be on them.

(2) Y barra does notstand for the pro position that po lice officers may never

search persons coincidentally at the scene during a warranted search.

However, the police must have independent probable cause to search

the person, as well as some justification for conducting the search

without a warrant, i.e., they must be able to point to an exception to the

warrant requirement.

g. Michigan v. Summers, 452 U.S. 692 (1981)

(1) A warrant to search [a residence] for contraband founded on probable

cause imp licitly carries with it the limited autho rity to detain the

occupants of the prem ises while a proper search is conducted.

(2) Muehler v. Mena, 544 U.S. 93 (2005)

(a) R ight of the police under Summers to detain an occupant

during a warranted search of a residence necessarily includes the

right to u se reasonable force to secure and m aintain deten tion

of the occupant.

D. Warrants Clause: When are Warrants R equired?

1. Exigent C ircumstances

a. W arden v. H ayden, 387 U.S. 294 (1967)

(1) The Fourth Amendment does not require police officers to delay in the

course of an investigation if to do so w ould gravely endanger their lives

or the lives of others.

b. W elsh v. W isconsin, 466 U.S. 740 (1984) W arrantless Entry of Home

(1) A principal protection against necessary intrusions into private dwellings

is the warrant requirement imposed by the Fourth Amendment on

agents of the government who seek to enter the home for purposes ofsearch or arrest.

(2) Searches and seizures inside a home without a warrant are presumptively

unreasonable.

(3) Before agents of the government may invade the sanctity of the home,

the burden is on the government to demonstrate exigent circumstances

that overcom e the presumption of unreasonableness that attache to all

warrantless hom e entries. W hen the govern men ts interest is only to

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arrest for a minor offense, that presumption of unreasonableness is difficult to

rebut, and the government usually should be allowed to make such

arrests only with a warrant issued upon probable cause by a neutral and

detached magistrate.

c. Mincey v. Ariz ona, 437 U .S. 385 (1978)Murder Scene N on-Exception

(1) Police may seize any evidence that is in plain view during the course of

their legitimate emergency activities.

(2) But a warrantless search must be strictly circumscribed by the

exigencies which justify its initiation, and it simply cannot be

contended that this search w as justified by any emergency threatening

life of limb.

d. Brigham City, Utah v. Stewart, 547 U.S. 398 (2006)

(1) It is a basic principle of Fourth Amendment law that searches and

seizures inside a ho me withou t a w arrant are presumptively

unreasonable. N evertheless, because the ultimate touchstone of the

Fourth Amendmen t is reasonableness, the w arrant is subject to certain

exceptions.

(2) Law enforcement officers may enter a home without a warrant to render

emergency assistance to an injured occupant or to protect an occupant

from imminent injury.

(3 ) The only poten tial emergency in W elsh was the need to preserveevidence (i.e., the suspects blood-alcohol level)an exigency that we

held insufficient under th e circumstances to justify entry into the

suspects hom e. H ere, the officers were con fronted with an ongoing

violence occurring within the home.

(4) The role of a peace officer includes preventing violence and restoring

order, not simply rendering first aid to casualties; an officer is not like a

boxing (or hockey) referee, poised to stop a bout only if it becomes too

one-sided.

(5) The officer opened the screen door and yelled in police. When no

one heard him he stepped into the kitchen and announced himself again.

The officers announcement of his presence was at least equivalent to a

knock on the screen door. U nder these circumstances, there was no

violation of the Fourth Amendments knock-and-announce rule.

2. Search es In ciden t to an Arrest

a. General Principles

(1) C himel v. C alifornia, 395 U.S. 752 (1969)

(a) When an arrest is made, it is reasonable for the arresting officer

to search the person arrested in order to remove any weapons that the

latter might seek to use in order to resist arrest or effect his

escape. O therwise the office might well be endangered, and

the arrest itself frustrated.

(b) In addition, it is entirely reasonable for the arresting officer to

search for and seize any evidence on the arrestees person in

order to prevent its concealment or destruction.

i) And the area into which an arrestee might reach in order

to grab a weapon or evidentiary items must of course,

be governed by a like rule.(c) There is no comparable justification, however for routinely

searching any room other than that in which an arrest

occursor, for that m atter, for searching throu gh all the desk

drawers or o ther closed or concealed area in that ro om itself.

Such searches, in the absence o f well-recognized exceptions,

may be made only under the authority of a search warrant.

(d) The only reasoned distinction is one between a search of the

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person arrested and the area within his reach on the one hand,

and more extensive searches on the other.

(2) United States v. R obinson, 414 U .S. 218 (1973)

(a) T erry affords no basis to carry over to a probable-cause arrest

the limitations this Cour t placed on a stop- and- frisk search

permissible without probable cause.

(b) The standards traditionally governing a search incident to

lawful arrest are not, therefore, commuted to the stricter T erry

standards by the absence of probable fruits or further evidence

for which the arrest is made.

(c) A custodial arrest of a suspect based on probable cause is a

reasonable intrusion under the Fourth Amendment; that

intrusion being lawful, a search incident to the arrest required

no additional justification. It is the fact of the lawful arrest

which establishes the autho rity to search, and we hold that in

the case of a lawful custodial arrest a full search of the person is

not only an exception to the warrant requirement of the Fourth

Amendmen t, bu t is also a reasonable search under that

Amendment.

(3) Illinois v. Lafayette, 462 U .S. 640 (1983)

(a) Arrest inventories, which occur without a warrant and in theabsence of probable cause, are justified on various grounds: to

protect the arrestee from theft of her valuables within the jail;

to reduce the risk of false claims of theft by the arrestee; and to

ensure that con traband and dangerous instrumentalities that

might have been m issed by th e police in the initial search

incident to the arrest are not smuggled into the jail.

b . Arrests of Automobile Occupants: A Special R ule?

(1) N ew Y ork v. Belton, 453 U.S. 454 (1981)

(a) When a policeman has made a lawful custodial arrest of the

occupant of an automobile, he may, as a contemporaneous

incident of that arrest, search the passenger com partment of that

automobile.

i) Police may also examine the conten ts o f any

containers found within the passenger compartment,

for if the passenger com partmen t is within reach o f the

arrestee, so also will containers in it be within his

reach.

a) Container here denotes any object capab le

of holding another object. It thus includes

closed or open glove compartments,

consoles, or other receptacles located

anywhere within the passenger compartment,

as well as luggage, boxes, bags, clothing, and

the like. O ut holding encompasses only the

interior of the passenger compartment and does not

encompass the trunk.

(b) Brennans D issenti) C himels exception the warrant requirement was

founded with two concerns:

a) safety o f the arresting o fficer

b ) p reservation of easily concealed or

destructible evidence.

ii) When the arrest has been consummated and the

arrestee safely taken into custody, the justifications

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underlying C himels limited exception to the warrant

requirement cease to apply: at that point there is no

possibility that the arrestee could reach w eapons of

contraband.

iii) T h e cru cial qu estio n u nder C himel is not whether the

arrestee could everhave reached the area that was

searched, but whether he could have reached it at the

time of the arrest and search. If no t, the officers

failure to obtain a warrant may not be excused.

(2) Searches Incident to Lawful Ci tation

(a) Knowles v. Indiana, 525 U.S. 113 (1998)

i) Officer issued a citat ion but d id not arrest .

ii) Supreme Court unanimously held that the search of

the car violatedthe Fourth Amendment.

iii) Neither of the underlying rat ionales in R obinson (1)

the need to disarm the suspect in order to take him

into custody, and (2) the need to preserve evidence

for later use at trial, were sufficient to justify a search

in this case.

iv) Encourage police officers to make arrests instead of

issuing only a citation?a) Encourage pretext stops?

(3) Police Taking Person into Custody for Very Petty Offense

(a) A twater v. C ity of Lago Vista, 523 U.S. 318 (2001)

i) Court re jected defenses argument that at common

law, peace officers were forbidden to make warrantless

misdemeanor arrests except for breaches of the peach.

ii) The Fourth Amendment balance is not well served by

standards requiring case-by-case determinations o f

government need, lest every discretionary judgment in

the field be converted into an o ccasion for

constitutional review.

(4) T hornton v. United States, 541 U.S. 615 (2004)

(a) The holding in Belton placed no reliance on the fact that the

officer in Belton ordered the occupants out of the vehicle, or

initiated contact with them while they remained within it.

N or do we find such a factor persuasive in distinguishing the

current situation, as it bears no logical relationship to Beltons

rationale.

i) Arrest of a suspect next to a vehicle presents identical

concerns regarding officer safety and destruction of

evidence as the arrest of one wh o is inside the veh icle.

ii) May be safer and more effective for officers to conceal

their presence from a suspect until after he has left his

vehicle.

(b) Belton allows searches incident to lawful custodial arrest of both

occupants and recent occupants.

i) While an arrestees status as a recent occupant mayturn on his temporal or spatial relationship th e car at

the tim e of the arrest and search, it certainly does not

turn on whether he was inside or outside the car at

the moment that the officer first initiated contact with

him.

(c) N eed a clear rule.

i) Pet it ioners contact in it iat ion rule would only

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confuse things. The officer would have to make

several factual determinations in the heat of the

moment.

(d ) Justice Scalias Concu rrence

i) R isk that the defendant would escape and ret rieve a

weapon is far from obvious.

a) G overn ment gave no exam ples of a

handcuffed arrestees retrieval of arms or

evidence from his vehicle.

b) N o different that Chimel where the Court

held that the risk that a handcuffed suspect in

his residence m ight escape and recover a

weapon from the next room was insufficient

to justify a search.

ii) Governments argument that the officer should not be

penalized for h aving taking the precaution o f securing

the suspect in the back of the squad car assumes that,

one way or another, the search would take place.

a) C onducting a C himel search is not the

Govern ment s right, it is an

exceptionjustified by necessityto a rule thatwould otherwise render the search unlawful.

iii) Beltons claim that the benefits of a bright-line rule

justify upholding the small minority of searches that,

on their particular facts, are not reasonable rests on the

accuracy ofBeltons claim that the passenger

comp artment is in fact generally within the suspects

immediate control.

a) The pract ice of rest rain ing an arrestee on the

scene before search a car that he just

occupied is so prevalent that holding that

Belton does not apply in th at setting would

largely render Belton a dead letter.

iv) Scalia would limit Belton searches to cases where it is

reasonable to believe evidence relevant to the crime of

arrest might be found in the vehicle.

(5) A riz ona v. G ant, 129 S.Ct. 1710 (2009)

(a) W e reject this reading of Belton and hold that the C himel

rationale authorizes police to search a vehicle incident to a

recent occupant's arrest only when the arrestee is unsecured and

within reaching distance of the passenger com partment at the

time o f the search.

(b ) Although it does not fo llow from C himel, w e also con clude that

circumstances unique to the vehicle context justify a search

incident to a lawful arrest when it is reasonable to believe

evidence relevant to the crime of arrest might be found in the

vehicle.

(c) Summary: (1) Police may search a vehicle incident to a recentoccupant's arrest only if the arrestee is within reaching distance

of the passenger compartment at the tim e of the search or (2) it

is reasonable to believe the vehicle contains evidence of the

offense of arrest. (3) W hen th ese justifications are absent, a

search of an arrestee's vehicle will be unreasonable unless police

obtain a warrant or show that another exception to the warrant

requirem ent applies.

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c. Pretextual Stops and Arrests (Particularly in Automobiles)

(1) W hren v. United States, 517 U.S. 806 (1996)

(a) Pretext stops are okay.

(b) O b jective n ot su bjective.

3. C ars and C ontainers

a. C hambers v. M aroney, 399 U .S. 42 (1970)

(1) O nly in exigent circumstances will the judgment of the police as to

probable cause serve as sufficient authorization for a search.

(a) C arroll holds a search warrant unnecessary wh ere there is

probable cause to search an automobile stopped on the

highway; the car is movable, the occupants are alerted, and the

cars contents may never be found again if a warrant must be

obtained. H ence an immediate search is constitutionally

permissible.

(b) For constitutional purposes, we see no difference between on

the one hand seizing and holding a car before presenting the

probable cause issue to a magistrate and on the oth er hand

carrying out an immediate search without a warrant. Given

probable cause to search, either course is reasonable under th e

Fourth Amendment.

(c) The probable-cause factor still obtained at the station house andso did the mobility of the car unless the Fourth Amendment

permits a warrantless seizure of the car and the denial of its use

to anyone until a warrant is secured. In that event there is little

to cho ose in terms of practical consequences between an

immediate search without a warrant and the cars

imm obilization u ntil a warrant is obtained.

(d) Essentially, Chambers stands for the p roposition that, as the

C ourt later explained the case, police officers with probable

cause to search an autom obile at the scene where it was stopped

may constitutionally do so later at the station house without

first obtaining a warrant. T exas v. W hite, 423 U.S. 67 (1975).

(2) Court backing away from the core principle of warrantless probable

cause searchesexigent circumstances,

b. C oolidge v. N ew Hampshire, 403 U .S. 443 (1971)

(1) The word automobile is not a talisman in whose presence the Fourth

Amen dm ent fades away and disappears. And surely there is nothing in

this case to invoke the meaning and purpose of the rule ofC arroll v.

United S tatesno alerted criminal bent on flight, no fleeting opportunity

on an open highway after a hazardous chase, no contraband o r stolen

goods or weapons, no confederated waiting to move the evidence, not

even the inconvenience o f a special police detail to guard the

imm obilized vehicle.

(2) In short, by no possible stretch of the legal imagination can this be made

into a case where it is not practical to secure a warrant and the

autom obile exception, despite its label, is simply irrelevant.

c. C alifornia v. Carney, 471 U.S. 386 (1985)

(1) Although ready mobility alone was perhaps the original justification forthe veh icle exception, our later cases have made clear that ready

mobility is not th e only basis for the exception. The reasons for the

vehicle exception, w e have said, are twofold. Besides the element of

mobility, less rigorous warrant requirem ents govern because the

expectation of privacy with respect to ones automobile is significantly

less than that relating to ones home or office.

(a) Automobiles are subject to pervasive and continuing

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governmental regulation and controls.

(2) When a vehicle is being used on the highways, or if it is readily capable

of such use and is found stationary in a place not regularly used for

residential purposestemporary o r o therwisethe tw o justifications for

the vehicle exception come into play.

(3) O ur application of the vehicle exception has never turned on the other

uses as to which the vehicle might be put but rather historically on the

ready mobility of the vehicle, and on the presence of the vehicle in a

setting that objectively indicates that the vehicle is being used for

transportation.

d. South D akota v. O pperman, 428 U.S. 364 (1976)

(1) Inventory S earches

(a) Court determined that the probable cause and warrant

requirements of the Fourth Amendm ent do not apply to

routine inventory searches.

(2) The probable-cause approach is unhelpful when analysis centers upon

the reasonableness of routine administrative caretaking functions,

particularly when no claim is made that the protective procedures are a

subterfuge for criminal investigations.

(3) Inventorying procedures are developed for:

(a) protection of the owners property while in police custody(b) protection of the police against claims or disputes over lost or

stolen property

(c) protection of the police from potential danger

(4) Policy M ust Be In Place

(a) See also Florida v. W ells (below).

(b) Such inventories are reasonable under the Fourth Amendment

provided that the po lice follow standard procedu res, i.e. , that

they do not exceed the scope of their own rules.

e. Florida v. W ells, 495 U .S. 1 (1990)

(1) Highway patrol officers were not allowed to open a locked suitcase they

discovered during an inventory search because the Florida Highway

Patrol had no policy whateverwith respect to the opening of closed containers

encountered during an inventory search.

(2) Court stated in dictum, however, that there is no reason to insist that

inventory searches be conducted in a totally mechanical all or noth ing

fashion and could leave discretion with the officers.

f. United States v. C hadwick, 433 U.S. 1 (1977)

(1) Police waited until the trunk was loaded into the car. The trunk of the

car was still open and the engine was off and officers arrested all three

defendants.

(2) Search incident to arrest or probable cause search not incident to arrest?

(a) Probable cause to search without warrant

(3) Although the searches and seizures which deeply concerned the

colonists, and which were foremost in the minds of the Framers, were

those involving invasions of the home, it would be a mistake to

conclude, as the Government contends, that the W arrant Clause was

therefore intended to guard only against intrusions into the home.(a) The Warrant Clause does not in terms dist inguish between

searches conducted in private hom es and other searches.

(4) By placing personal effects inside a double locked footlocker,

respondents manifested an expectation that the contents would remain

free from public examination. N o less than one wh o locks the doo rs of

his home against intruders, one who safeguards his personal possessions

in this manner is due the protection of the Fourth Amendm ent W arrant

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C lause.

(5) T here being no exigency, it was unreasonable for the Government to

conduct this search without the safeguards a judicial warrant provides.

(6) The factors which diminish the privacy aspects of an automobile do not

apply to responden ts footlocker.

(a) Luggage contents are not open to public view, except as a

condition to a border entry or common carrier travel; nor is

luggage subject to regular inspections and official scrutiny on a

continuing basis.

(b) Unlike an automobile, whose primary function is

transportation, luggage is intended as a repository of personal

effects. In sum, a persons expectations of privacy in personal

luggage are substantially greater than in an automobile.

(c) With the footlocker safely immobilized, it was unreasonable to

undertake the additional and greater intrusion of a search

warrant without a warrant.

(7) Warrantless searches of luggage or other property seized at the time of an

arrest cannot be justified as incident to that arrest either if the search is

remote in time or place from the arrest, or no exigency exists.

(a) O nce law enforcement officers have reduced luggage or other

personal property no t imm ediately associated with th e personof the arrestee to their exclusive control, and there is no longer

any danger that the arrestee m ight gain access to the p roperty

to seize or destroy evidence, a search of the property is no

longer an incident of the arrest.

(8) When no exigency is shown to support the need of an immediate

search, the Warrant Clause places the line at the point where the

property to be searched comes under the exclusive dominion of police

authority. R espondents were therefore entitled to the protection of the

W arrant C lause with the evaluation o f a neutral magistrate, before their

privacy interests in the contents of the footlocker were invaded.

g. A rkansas v. S anders, 442 U.S. 753 (1979)

(1) A suitcase taken from an automobile stopped on the highway is not

necessarily attended by any lesser expectation of privacy than is

associated with luggage taken from other locations. O ne is not less

inclined to place private, personal possessions in a suitcase merely

because the suitcase is to be carried in an automo bile rather than

transported by other means or temporarily checked or stored.

(2) The reasons for not requiring a warrant for the search of an automobile

do not apply to searches of personal luggage taken by police from

automobiles.

(3) Not all containers and packages found by the police during the course of

a search will deserve the full protection of the Fourth Amendment.

Thus, some con tainers (for example a kit of burglar tools or a gun case)

by their n ature cannot suppor t any reasonable expectation of privacy

because their contents can be inferred from their outward appearance.

Similarly, in some cases the contents of a package will be open to plain

view, thereby obviating the need for a warrant.(a) These exceptions aside, the Court has refused to draw a

distinction between Fourth Amendment worthy and

unw orthy containers. United States v. R oss, 456 U .S. 798

(1982).

h. United States v. R oss, 456 U.S. 798 (1982)

(1) Warrant to search a home provides the police with implicit authority to

open any container that might contain the criminal evidence for which

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they are searching. Likewise, [a] warrant to search a vehicle wou ld

support a search o f every party of the vehicleincluding containers

thereinthat might contain the object of the search.

(2 ) The same rule shou ld be app lied to warrantless searches without a

warrant. W hen po lice have probable cause to search a car withou t a

warrant un der the C arroll-C hambers-C arney lines of cases, they may also

search any container found during th e car search th at is large enou gh to

hold the evidence for which they are looking.

i. After R oss, an uneasyand complicateddistinction existed: If the police had

probable cause to search a car, they could search fixed parts thereof ( e.g., glove

compartments, trunks) as well as moveable containers carried within it (assuming

they could conceal the object of the search). But, if the police had probable cause

to search a specific container, which coincidentally was found in a car, they could

search the car on the highway (or tow it to the police station, per C hambers v.

M aroney), without a warrant in order to find and seize the container, but they

needed a warrant to open the container (per C hadwick and whatever remained of

A rkansas v. S aunders after R oss).

j. C alifornia v. A cevedo, 500 U.S. 565 (1991)

(1) A container found after a general search of an automobile and a

container found in the car after a limited search for th e container are

equally easy for the p olice to store and for th e suspect to hide o r destroy.(2) The line between probable cause to search a vehicle and probable cause

to search a package in that vehicle is not always clear, and separate rules

that govern the two objects to be searched may enable the police to

broaden their power to make warrantless searches and disserve privacy

interests.

(a) If police know that they may open a bag only if they are

actually searching the entire car, t hey m ay search more

extensively than they oth erwise would in order to establish the

general probable cause requ ired by R oss.

(3) By attempting to distinguish between a container for which the police

are specifically searching and a container which they come across in a

car, we have provided only minimal protection for privacy and have

impeded law enforcement.

(4) Since the police, by hypothesis, have probable cause to seize the

property, we can assume that a warrant will be routinely forthcoming in

the o verwhelming majority of cases.

(5) We now hold that the Fourth Amendment does not compel separate

treatment for an automobile search that extends only to a container

within the vehicle.

(6) Probable cause to believe that a container placed in the trunk of a taxi

contains contraband or evidence does not justify a search o f the en tire

cab. W e affirm that principle. In the case before us, the police had

probable cause to believe that the paper bag in the autom obiles trunk

contained marijuana. T hat probable cause not allows a warrantless

search of the paper bag. The facts in the record reveal that the police

did not have probable cause to believe that contraband was hidden in

any other part of the automobile and a search of the entire vehiclewould have been without probable cause and unreasonable under the

Fourth Amendment.

(7) Justice Stevens Dissent

(a) O nes privacy interest in ones luggage can certainly not be

diminished by ones removing it from a public thoroughfare

and placing itout of sightin a p rivately ow ned vehicle.

k. W yoming v. H oughton, 526 U.S. 295 (1999)

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(1) Police officers with probable cause to search a car may inspect any

passenger belongings found in the car that are capable of concealing the

object of the search.

(2) First, passengers, no less than drivers, possess a reduced expectation of

privacy with regard to the property that they transport in cars.

(3) Second, an ownership-based rule would impede law enforcement. A

criminal might be able to hide contraband in a passengers belongings as

readily as in other containers in the carperhaps even surreptitiously,

withou t th e passengerss know ledge or permission.

4. P lain View (and T ouch) D octrines

a. H orton v. C alifornia 496 U. S. 128 (1990)

(1) Affidavit for the search warrant referred to police reports that described

weapons as well as proceeds of the robbery, bu t the warrant issued by

the M agistrate only author ized a search for the p roceeds, including three

specifically described items of jewelry (rings).

(2) It is of course, an essential predicate to any valid warrantless seizure of

incriminating evidence that the officer did not violate the Fourth

Amendment in arriving at the place from which the evidence could be

plainly viewed. T here are, moreover, two additional conditions that

must be satisfied to justify warrantless seizure:

(a) First, not only must the item be in plain view; its incriminatingcharacter must also be imm ediately apparent.

(b) Second, not only must the officer be lawfully located in a place

from which the object can be plainly seen, but he or she must

also have a lawful right of access to the object itself.

i) No amount of probable cause can just ify a warrantless

search or seizure absent exigent circumstances.

(3) N o Inadvertence R equirement: Evenhanded law enforcement is best

achieved by the application of ob jective standards of condu ct, rather

than standards that depend upon the subjective state of mind of the

officer. The fact that an officer is interested in an item o f evidence and

fully expects to find it in the course of a search should not invalidate its

seizure if the search is confined in area and duration by the terms of a

warrant or a valid exception to the warrant requirement.

(a) The inadvertence requirement was put forth in Justice Stewarts

C oolidge four- justice plurality. Despite never being accepted by

a majority of the members of the Supreme Court, virtually all

of the states and lower federal courts endorsed the inadvertency

rule.

(b) Some states still adhere to the inadvertency rule under the

requirem ents of their respective state constitutions.

i) Fultz v. S tate, 333 Ark. 586, 972 S.W.2d 222 (1998)

a) [I]n ligh t of the facts in the instan t case , we

now hold, consistent with Horton, that the

Arkansas Constitution does not prohibit the

warrantless seizure of evidence in plain view

even though the discovery was not

inadvertent.(4) The suggestion that the inadvertence requirement is necessary to prevent

the po lice from conducting general searches, or from con verting specific

warrants into general warrants, is not persuasive because that interest is

already served by the requirements that no warrant issue unless it

particularly describ[es] the place to be searched and the persons or

things to be seized, and that a warrantless search be circumscribed by

the exigencies that justify its initiation.

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b. A riz ona v. H icks, 480 U.S. 321 (1987)

(1) It is well established that under certain circumstances the police may

seiz e evidence in plain view without a warrant. C oolidge v. N ew

Hampshire. It wou ld be absurd to say that an object could be lawfully

seized and taken from the premises, but could not be moved for closer

examination. It is clear, therefore, that the search here was valid if the

plain view doctrine would have sustained a seizure of the equipment.

(2) Probable cause is required in order to invoke the plain view doctrine.

(a) To say otherwise would be to cut the plain view doctrine

loose from its theoretical and practical moorings.

i) The practical justification is the desirability of sparing

the police, whose viewing of the object in the course

of a lawful search is as legitimate as it would have been

in a public place, the inconvenience and the riskto

themselves or to preservation o f the evidenceof

going to obtain a warrant.

(b) We do not say, or course, that a seizure can never be justified

on less than probable cause. W e have held that it canwhere,

for example, the seizure is minimally intru sive and operational

necessities render it the only practicable means of detecting

certain types of crime.(3) The plain view doctrine does not apply, because at the moment the

officer picked up the stereo, he did not have probable cause for the

search he performed by moving it, m erely a reasonable suspicion.

(4) A truly cursory inspectionone that involves merely looking at what is

already exposed to view, without disturbing itis not a search for

Fourth Amendment purposes, and therefore does not even require

reasonable suspicion.

c. Minnesota v. Dickerson, 508 U.S. 366 (1993)

(1) We think that [the plain-view] doctrine has an obvious application by

analogy to cases in which an officer discovers contraband throu gh the

sense of touch during an otherwise lawful search.

(2) If a police officer lawfully pats down a suspects outer clothing [for

weapons] and feels an object who se conto ur o r m ass makes it identity

imm ediately apparent, there has been no invasion o f the suspects

privacy beyond that already authorized by the officers search for

weapons; if the object is contraband, its warrantless seizure would be

justified by the same practical considerations that inhere in the plain

view context.

5. C onsent

a. Schneckloth v. Bustamonte, 412 U.S. 218 (1973)

(1) It is well-settled that one of the specifically established exceptions to the

requirements of both a w arrant and pro bable cause is a search that is

conducted pursuant to consent.

(2) When a prosecutor seeks to rely upon consent to justify the lawfulness of

a search, he h as the bu rden o f proving that the consent w as, in fact,

freely and voluntarily given.

(3) Whether a consent to a search was in fact voluntary or was theproduct of duress or coercion, express or im plied, is a question of fact to

be determined from the totality of the circumstances.

(a) While knowledge of the right to refuse consent is one factor to

be taken into account, the government need not establish such

know ledge as the sine qua non of an effective consent.

(4) In examining all the surrounding circumstance to determine if in fact the

consent to search was coerced, account m ust be taken o f subtly coercive

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police questions, as well as the possibly vulnerable subjective state of the

person who consents.

(5) Court rejects advising of the right to refuse consent:

(a) Impractical

i) Consent searches normally occur on the highway, or

in a persons office or home, and under informal and

unstructured conditions. T he circumstances that

prom pt the initial requests to search may develop

quickly or be a logical extension of investigative

police questioning.

ii) These situations are a far cry from the structured

atmosphere of a trial where, assisted by counsel if he

chooses, a defendant is informed of his trial rights.

iii) And while a closer question, these situations are still

imm easurably far remo ved from custodial

interrogations where, in Miranda v. A riz ona, we

found that the Constitution required certain now

familiar warnings as a prerequisite to police

interrogation.

(b) Neither the Courts prior cases, nor the traditional definition of

voluntariness requires proof of knowledge of a right to refuseas the sine qua non of an effective consent to a search.

(c) Consent is not the same as a waiver of rights in the context of

the safeguards of a fair criminal trial.

i) There is a vast difference between those rights that

protect a fair criminal trial and the rights guaranteed

under the Fourth Amendment.

ii) Nothing, either in the purposes behind requir ing a

knowing and intelligent waiver of trial rights, or

in the practical application of such a requirement

suggests that it ought to be extended to the

constitutional guarantee against unreasonable searches

and seizures.

(d) N arrow Holding: W e only hold that when the subject of a

search is not in custody and the State attempts to justify a search

on the basis of his consent, the Fourth and Fourteenth

Amendments require that it demonstrate that the consent was

in fact voluntarily given, and not the result of duress or

coercion, exp ress or implied.

i) Voluntariness is a question of fact to be determined

from all the circumstances, and while the subjects

knowledge of a right to refuse is a factor to be taken

into account, the prosecution is not required to

demo nstrate such knowledge as a prerequ isite to

establishing voluntary consent.

b. O hio v. R obinette, 519 U.S. 33 (1996)

(1) Although knowledge is a factor to be taken into account in voluntariness

analysis, there is no categorical requirement that police officers informdetainees that they are free to go before a consent to search m ay be

deemed voluntary.

c. Bumper v. N orth C arolina, 391 U.S. 543 (1968)

(1) The burden of proving that consent was, in fact, voluntarily and freely

given cannot be discharged by showing no more than mere acquiescence

to a claim of lawful authority.

(2) A search conducted in reliance upon a warrant cannot later be justified

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on the basis of consent if it turns out that the warrant was invalid. T he

result can be no different when it turns out that the State does not even

attempt to rely upon the validity of the warrant, or fails to show that

there was, in fact, any warrant at all.

(3) When a law enforcement officer claims authority to search a home

under a warrant, he announces in effect that the occupant has no right to

resist the search. T he situation is instinct with coercionalbeit colorably

lawful coercion. W hen there is coercion there cannot be consent.

d. A person may also withdraw consent after it is granted. The police must honor

the citizenss wishes, unless their pre-withdrawal search gives them independent

grounds to proceed.

e. G eorgia v. R andolph, 547 U .S. 103 (2006)

(1) The Fourth Amendment recognizes a valid warrantless entry and search

of premises when police obtain the voluntary consent of an occupant

who shares authority over the area in common with a co-occupant who

later o bjects to th e use of evidence so obtained. United States v. M atlock,

415 U.S. 164 (1974).

(2) We hold that, in the circumstances here at issue, a physically present co-

occupants stated refusal to permit entry prevails, rendering the

warrantless search unreasonable and invalid as to him.

(3) To the Fourth Amendment rule ordinarily prohibiting the warrantlessentry of a persons house as unreasonable per se, one jealously and

carefully drawn exception recognizes the validity of searches with the

voluntary consent of an individual possessing authority.

(a) That person might be the householder against whom evidence

is sought, or a fellow occupant who shares common authority

over property, when the suspect is absent.

(4) The third partys common authori ty is not synonymous with a

technical property interest:

(a) R ests rather on mutual use of the property by persons generally

having joint access or control for most purposes, so that it is

reasonable to recogn ize that any of the co- inhabitants has the

right to permit the inspection in his own right and that the

owners have assumed the risk that one of their number might

permit the common area to be searched.

(b) A person on the scene who identifies himself, say, as a landlord

or a hotel manager calls up n o customary understanding of

authority to admit guests without the consent of the current

occupant.

(5) Since the co-tenant wishing to open the door to a third-party has no

recognized authority in law or social practice to prevail over a present

and objecting co-tenant, his disputed invitation, without more, gives a

police officer no better claim to reasonableness in entering than th e

officer would have in the absence of any consent at all.

(6) The question whether the police might lawfully enter over any

objection in order to provide any protection that might be reasonable is

easily answered yes. The undoub ted right of the police in order to

protect a victim, however, has nothing to do with the question in thiscase, w hether a search with the con sent o f one co- tenant is good against

another, standing at the door and expressly refusing con sent.

(7) A warrantless search of a shared dwelling for evidence over the express

refusal of consent by a physically present resident cannot be justified as

reasonable as to him on the basis of consent given to the po lice by

another resident.

(8) Loose ends from Matlock:

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(9) How can one cotenants permission, in his own right, be eliminated by

the objection of another co-tenant?

(a) To ask whether the consenting tenant has the right to admit the

police when a physically present fellow tenant objects is not to

question whether some property right may be divested by the

mere objection of another. It is rather, the question whether

customary social understanding accords the consenting tenant

authority powerful enough to prevail over the co-tenants

objection.

(10) The M atlock defendant was not present with the opportunity to object

but w as in a squad car not far away. T his cases holding would thu s

draw a fine line: if a potential defendant with self-interest in objecting is

in fact at the d oor and objects, the cotenants permission does not

suffice for a reasonable search, whereas the potential objector, nearby but

not invited to take part in the threshold colloquy, loses out.

(a) The Court chooses this formalist ic line with some

qualifications:

i) So long as there is no evidence that the police have removed

the potentially objecting tenant from the entrance for the sake

of avoiding a possible objection, there is practical value in the

simple clarity of complementary rules, one recognizing theco- tenantss permission w hen there is no fellow

occupant on hand, the other according dispositive

weight to the fellow occupants contrary indication

when he expresses it.

ii ) Better to accept the formalism of dist inguishing

M atlock from this case than to impose a requirement of

seeking out any co-tenant to determine his wishes,

time-consuming in the field and in the courtroom,

with no apparent systemic justification.

(11) Justice R oberts Dissent

(a) The rule the majori ty fashions does not implement the high

office of the Fourth Amendment to protect privacy, but instead

provides protection on a rando m and happenstance basis,

protecting, for example, a co-occupant who happens to be at

the front door when the other occupant consents to a search,

but not one napping or watching television in the next room.

(b) The Fourth Amendment protects privacy. If an individual

shares information, papers, orplaces with another, he assumes

the risk that the other person will in turn share access to that

information or those papers or places with the government.

(c) The majority repeats several times that a present co-occupants

refusal to perm it entry renders the search unreasonable and

invalid as to him. T his implies entry and search would be

reasonable as to someo ne else, presumably the consenting co-

occupant and any other absent co-occupants.

i) The normal Four th Amendmen t rule is that items

discovered in plain view are admissible if the officerswere legitimately on the prem ises; if the entry and the

search were reasonable as to M rs. R andolph, based

on her consent, it is not clear why the cocaine straw

shou ld not be adm issible as to Mrs R andolph.

f. Illinois v. R odriguez , 497 U .S. 177

(1) What is at issue when a claim of apparent consent is raised is not

whether the right to be free of searches has been waived, but whether the

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right to be free ofunreasonable searches has been violated.

(a) It is apparent that in order to satisfy the reasonableness

requirement of the Fourth Amendment, what is generally

demanded of the many factual determinations that must

regularly be made by agents of the governmentwhether the

magistrate issuing a warrant, the police officer executing a

warrant, o r the police officer conducting a search or seizure

under one of the exceptions to the warrant requirementis not

that they always be correct, but that they always be reasonable.

(2) The Constitution is no more violated when officers enter without a

warrant because they reasonable (though erroneo usly) believe that the

person who h as consented to their entry is a resident o f the prem ises,

than it is violated when they enter without a warrant because they

reasonably (though erroneously) believe they are in pursuit of a violent

felon who is about to escape.

(3) Law enforcement may not always accept a persons invitation to enter

premises. Even wh en the invitation is accompanied by an explicit

assertion that the person lives there, the surrou nding circum stances could

conceivably be such that a reasonable person wou ld doub t its truth and

not act upon it without further inquiry.

(a) Would the facts available to the officer at the moment warranta man o f reasonable caution in the belief that the consenting

party had authority over the premises?

g. Florida v. Jimeno, 500 U .S. 248 (1991)

(1) A consent search is invalid, even if the consent was voluntary, if the

police exceed the scope of the consent granted.

(2) In Jimeno, the defendant gave consent to search his car. T he officer

found a bag, opened it, and discovered cocaine. T he defendant moved

to suppress arguing that his consent to search the car did not exten d to

the closed paper bag inside the car. The Supreme C ourt rejected this

argument:

(a) We thin

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