• Important Procedural Steps in Criminal Justice System

o 1) The Crime
o 2) The reported crime
o 3) Pre-arrest Investigation
 On-Scene Investigation
• Stop and frisk
• Border searches
 Reactive Investigations
 Proactive Investigations
 Prosecutorial Investigations
o 4) Arrest
 Search incident to arrest
 Plain view seizures
 Inventory searches
 Consent searches
o 5) Booking
o 6) Post-Arrest Investigations
 Search warrants
 Warrantless searches
 Right against self-incrimination
 Request of Counsel
o 7) The decision to charge
 Investigator screening
 Prosecutor screening (pre-filing)
o 8) Filing of complaint
 Prosecutor screening (post filing of complaint)
 Magistrate/district judge review of the arrest warrant and proposed complaint
 Note: A prosecutor now decides whether there is enough evidence to file
charges; if so, the prosecutor prepares a “complaint.”
o 9) First appearance on the complaint
 An arrested person must be taken without unnecessary delay (within 24 hours)
before a judicial officer for a hearing (arraignment on a warrant, initial
arraignment, etc.)
 Arrestee Receives:
• Formal notice of charges against her
• Constitutional rights in the impending prosecution are explained to her
o Right to counsel
• Sets bail or releases D without bail
• Date is set for preliminary hearing
 Arrestee is poor & not represented by counsel:
• A lawyer is appointed for her @ this time
 Arrestee arrested without warrant:
• Probable cause determination is usually made @ 1st appearance
 Magistrate determines if the arrestee should be set free on her own
recognizance, released on bail, or detained pending further proceedings
 POSSIBLE ISSUES:
• Right to counsel issues
• Detention/bond issues
o 10) Preliminary hearing (the probable cause hearing)
 D is constitutionally entitled to representation by counsel
Most jurisdictions  held w/in 2 weeks after the arrestee’s initial appearance
b/4 magistrate, unless the D waives the hearing
 Primary purpose is to determine whether there is p/c to believe that a criminal
offense has occurred & that the arrestee committed it
 Prosecutor & D can call on witnesses & cross examine adverse witnesses
 Many jurisdictions permit
• Introduction of hearsay
• Evidenced obtained unconstitutionally (although such evidence is usually
inadmissible @ trial)
 TWO TYPES OF JURISDICTIONS
• Indictment Jurisdictions (Federal System)
o Definition: A state where the D ordinarily cannot be brought to trial
unless she is indicted by a grand jury
o If grand jury doesn’t indict the D, she must be released (even if
magistrate in a prelim haring determined there was p/c)
o Federal System:
 Prelim haring not held if D is indicted b/4 the date set for
prelim hearing
• Information Jurisdictions
o Definition: A state where an indictment by a grand jury is not
required
o Once the magistrate determines there is sufficient evidence to bind
over the D to trial, prosecutor files an “information” w/ the court.
 Information  a document stating the charges against the D
and the essential facts relating to them
• Replaces the complaint as the formal charging
document
o If the magistrate doesn’t find sufficient evidence to bind over the D,
the complaint is dismissed & D is discharged
 If D is discharged, the prosecutor has 3 options if she wants to
proceed with the dismissed case:
• File a new complaint, prosecutor can start anew
• (in some states) may appeal the magistrate’s dismissal
to the trial ct. AND/OR
• (In some circumstances) permitted to seek an
indictment from a grand jury
o 11) Grand Jury Proceedings
 In Indictment jurisdictions, a person may not be brought to trial for a serious
offense unless she is indicted by a grand jury or waives her right to a grand jury
hearing.
 The purpose of a grand jury is to stand “between the accuser and the accused…
(in order) to determine whether a charge is founded upon reason or was
dictated by an intimidating power or by malice and personal ill will.”
 5th Amendment  in federal prosecutions, “no person shall be held to answer
for a capital, or otherwise infamous crime (encompasses all felony
prosecutions), unless on a(n)…indictment of a Grand Jury….”
 A grand jury proceeding may not in fact shield an innocent person as well as a
preliminary hearing.
 • 1) The person targeted for the indictment, is not permitted to be present
during the grand jury proceedings (except if and when she is called as a
witness).
o Only the grand jurors, prosecutor, the witness, and a transcriber of
the proceedings, is present in the jury room during the hearing.
• 2) Witnesses, including the putative defendant, do not have a
constitutional right to have counsel present while they testify b/4 the
grand jury.
• 3) No judge is present during the proceedings. Rules of evidence do not
apply.
o An indictment is not invalid even if it is based solely on inadmissible
hearsay evidence or unconstitutionally obtained information.
• 4) Prosecutor is not required to disclose to the grand jurors evidence in
her custody that might exculpate the putative defendant.
 Upon conclusion of the prosecutor’s presentation of her case, the grand jurors
deliberate privately.
• If a majority of them determine that sufficient evidence was introduced by
the prosecutor, the jury issues an indictment (a document that states the
charges and the relevant facts relating to them).
• If the jury does not vote to indict the D, the complaint issued against the
D is dismissed and she is discharged.
o 12) Filing indictment or information
 In the federal system, or in a ‘grand jury” state, the next step is for a grand jury
to hear the prosecutor’s evidence and to issue an indictment.
 In a non-grand jury state, the prosecutor now prepares an “information,”
reciting the charges.
o 13) Arraignment on information or indictment
 If an indictment or information is filed, the D is arraigned in open court.
 2/3 of cases are resolved by pleas at this stage
 @ Arraignment:
• D’s counsel is permitted to be present
• Accused is provided with a copy of the indictment or information (after
which she enters a plea to the offenses charged in it)
• D may plead:
o not guilty
o guilty
o nolo contendere
 “I will not contest the charge”
 This plea is treated as a guilty plea
o not guilty by reason of insanity (in some states)
o 14) Plea Hearing  See above on types of pleas D can plead
o 15) Pretrial motions
 More than ¾ of cases in this class involved a pretrial motion to suppress
 At stake: whether evidence will be suppressed
 Guarantee: This will be the basis of an exam question
 After arraignment, the D may make various pretrial motions.
• Among the defenses, objections, and requests that often are raised prior
to trial are:
o That the indictment or information is defective, in that it fails to
allege an essential element of the crime charged, or that it fails to
 give the D sufficient notice of the facts relating to the charge
against her
 Rule 12(b)(2)
o That the venue of the prosecution is improper or inconvenient
 Rule 18, 21(a)
o that the indictment or information joins offenses or parties in an
improper or prejudicial manner
 Rule 8, 14
o that evidence in the possession of one of the parties should be
disclosed to the opposing party
 Rule 16
o that evidence should be suppressed b/c it was obtained in an
unconstitutional manner
o that the prosecution is constitutionally barred, such as by the
double jeopardy and/or speedy trial clauses of the constitution
• In some situations, if a D’s pretrial motions are successful the judge will
dismiss the charges on her own or on the prosecutor’s motion.
o Rule 48
 Prosecutor is trying to get the evidence against the D to come in. (Most of the
cases deal with a pretrial motion to suppress the evidence)
o 16) The trial
 Right to trial by jury
• If a D does not plead guilty and the charges are not dismissed, a trial is
held.
• 6th Amendment  entitles a D to trial by jury in the prosecution of any
serious, non-petty, offense.
o The right to a jury trial applies, at a minimum, to any offense for
which the maximum potential punishment is incarceration in excess
of 6 months.
o A D who is prosecuted in a single proceeding for multiple petty
offenses doesn’t have a 6th Amendment right to a jury trial, even if
the aggregate prison terms authorized for the offenses exceeds 6
months.
• Trial juries usually consist of 12 persons. A jury as small as 6 in number
are constitutionally permitted.
• Most jurisdictions, the jury verdict to acquit or to convict must be
unanimous.
• State laws permitting non-unanimous verdicts have been upheld as
constitutional.
 Composition of the jury
• 6th Amendment guarantees a D trial by an impartial jury.
o An individual juror isn’t impartial if her state of mind as to any
individual involved in the trial, or as to the issues involved in the
case, would substantially impair her performance as a juror in
accordance with the law and the court’s instructions.
• The accused is not entitled to a jury that mirrors the community as a
whole.
• The accused is entitled to a jury drawn from a pool of persons constituting
a fair cross-section of the community.
 •This right is violated if large, distinctive groups of persons, such as women
or members of a racial group, are systematically excluded from the jury
pool.
 Selection of Jurors
• The trial judge (in some jurisdictions) and attorneys examine the
prospective jurors (venirepersons) regarding their attitudes and beliefs
relating to the case.
o If either side believes that a venire person is partial, that side may
challenge the juror “for cause”. If the judge grants the challenge
the prospective juror is excused.
• “Peremptory Challenges”  Challenges not based on cause
o Primary purpose: To allow a party to exclude a person from the jury
if it believes, as a matter of intuition or as the result of the voir dire,
that the individual is biased, but whose partiality has not been
proved to the satisfaction of the judge.
o Both the D and the prosecution are entitled to exercise a specified
number of peremptories.
o They may not be exercised in an unfettered manner.
o 14th Amendment: Equal Protection Clause
 Neither the prosecution/defense may exercise challenges to
remove persons from the venire solely on the basis of the
prospective juror’s race or gender.
 Other Constitutional Trial Rights
• D is constitutionally entitled to employ counsel at trial.
• An indigent (poor person) is entitled to appointment of counsel in all
felony prosecutions, as well as at any misdemeanor trial in which she will
be incarcerated if convicted.
• The D may also call witnesses on her own behalf, and confront and cross
examine the witnesses who testify against her.
• D is not required to testify on her own behalf (5th Amendment 
constitutional privilege not to testify)
o 17) Sentencing
 If D pleads guilty or is found guilty during the trial, he is then sentenced (usually
by the judge, not the jury).
o 18) Direct Appellate Review
 A convicted defendant or prosecution, who lose in state or federal appellate
court and take a direct appeal to U.S. Supreme Court
 If D is acquitted by jury/by judge in a bench trial, the gov’t is barred by the
double jeopardy clause to appeal the acquittal.
 If D is convicted, she has no constitutional right to appeal her conviction.
• However, all jurisdictions statutorily permit a convicted D to appeal.
o In state court systems:
 D may appeal to an appellate court below the state supreme
court or, if there is none, directly to the state supreme court.
o In federal court systems:
 A D may appeal her conviction to the U.S. Court of Appeals for
the circuit court with jurisdiction over the case.
 If the appellant is unsuccessful in her statutory appeal of
right, she may be entitled to discretionary appeals to a higher
court.
 • However the State Supreme Court is permitted not
required to hear the case. (Except in capital cases)
 She may also petition the U.S. Supreme Court to consider her
case. If her appeal is ultimately successful, she may be re-
prosecuted.
o 20) Direct Appellate Process to U.S. Supreme Court
 Federal:
• U.S. District Court  U.S. Court of Appeals  Petition for Writ of Certiorari
 U.S. Supreme Court
 State:
• Circuit Court  Court of Appeals  Application for Leave to Appeal to
State Supreme Court  Petition for Writ of Certiorari  U.S. Supreme
Court
o 21) Post Conviction Remedies – Habeas Corpus for state prisoners (a.k.a.
Collateral Review)
 Both state and federal prisoners, even after direct appeal, may challenge their
convictions through federal-court habeas corpus procedures.
 Habeas Corpus Process for State Prisoners to U.S. Supreme Court
• State:
o Circuit Court  Court of Appeals  Application for Leave to Appeal
to State Supreme Court  Petition for Writ of Habeas Corpus, U.S.
District Court  U.S. Court of Appeals  Petition for Writ of
Certiorari  U.S. Supreme Court
 After a D’s appeals are exhausted (once the conviction is final) she may file a
petition for a write of habeas corpus in a federal district court, if she believes
that her continued incarceration is in violation of the U.S. Constitution or of a
federal law.
 A post conviction habeas corpus proceeding is not part of the criminal appeal
process itself.
 It is a civil action designed to overturn a presumptively valid criminal judgment.
• Considered a collateral attack on a criminal conviction
 Purpose of a habeas petition: to convince the district (Trial) court that it
should compel the warden of the jail or prison holding the petitioner to bring her
before the court so that it can determine whether she is being held in custody
against the law.
 Federal Habeas Corpus Jurisprudence involves intricate rules and recent
legislation makes it difficult for petitioners to obtain a hearing on the merits of
their federal claims.
• If proper allegations are made, the district court may grant the petition
and conduct an evidentiary hearing in the federal claim.
 Standards that a petitioner must satisfy to obtain ultimate relief in habeas are
often stricter than those that apply on direct appeals.
• However, if the district court determines that the petitioner is being held
in custody in violation of federal law or the constitution, it may vacate the
conviction.
 The ruling of the District court (whether to grant or deny the petition) is subject
to appeal by the losing party.

FEDERAL CONTROL OF STATE CRIMINAL PROCEDURE AND INDEPENDENT STATE

GROUNDS
 • Scope of Federal Control of State Criminal Procedure
o Article III, Section 1 – Constitution of the United States
 “The judicial power of the United States, shall be vested in one Supreme Court,
and in such inferior Courts as the Congress may from time to time ordain
establish.”
o Article III, Section 2 – Constitution of the United States
 “The judicial Power shall extend to all Cases, in law and Equity, arising under
this Constitution, the laws of the United States…”
o 14 Amendment
th

 Due process clause of 14th Amendment, passed following civil war, provides:
• “Nor shall any State deprive any person of life, liberty, or property,
without due process of law;…”

SUPREME COURT SUPERVISORY AUTHORITY OVER FEDERAL COURTS:

• MCNABB v. United States (1943)
o Although statute provided no remedy for violation, the Court exercised its supervisory
authority to rule that any confession obtained during unlawful detention was
inadmissible even if obtained voluntarily.
• United States v. PAYNER (1980) (Powell, J.)  The “Briefcase Caper”: How much of this
supervisory authority remains?
o The Supreme Court in interpreting the Constitution sets the floor A state is free to
give their citizens greater protection then what the Supreme Court provides  states
set the ceiling.
o Law A federal court cannot use its “supervisory powers” to exclude evidence that
doesn’t violate the Δ’s own 4th amendment rights.
o Reasoning
 The interest in deterring illegal searches does not justify the exclusion of tainted
evidence at the instance of a party who was not the victim of the challenged
practices.
 The values assigned to the competing interests do not change b/c a court has
elected to analyze the question under the supervisory power instead of the 4th
amendment. In either case, the need to deter the underlying conduct and the
detrimental impact of excluding the evidence remain precisely the same. The
district court’s reasoning, which the 6th circuit affirmed, amounts to a
substitution of individual judgment for the controlling decisions of this court.
Were we to accept this use of the supervisory power, we would confer on the
judiciary discretionary power to disregard the considered limitations of the law
it is charged with enforcing.
 Dressler
• It stated that it understood the district court’s desire to deter deliberate
lawless activities by gov’t agents, the court warned that lower courts are
not permitted to use non-constitutional supervisory law to upset the
careful balance of interests embodied in previous constitutional decisions.
o Dissent (Justice Marshall)
 The court’s holding effectively turns the standing rules created by this court for
assertions of 4th amendment violations into a sword to be used by the gov’t to
permit it deliberately to invade one person’s 4th amendment rights in order to
obtain evidence against another person.
  Doesn’t believe that the federal courts are unable to protect the integrity of the
judicial system from such gross gov’t misconduct.
 Says this approach is totally unfaithful to our prior supervisory power cases,
which, contrary to the Court’s suggestion, are not constitutional cases in
disguise.

INDEPENDENT STATE GROUNDS:

• Michigan v. LONG (1983) (O’Conner, J.)
o If states do not want the Supreme Court to come in and review their decisions, they
need to state that their decisions are entirely based upon their own Constitution.
(“plain statement”) However, if it violates the U.S. Constitution or goes below the
floor set by the Supreme Court, then the Supreme Court can review their decisions.
o Reasoning
 If the state makes a decision based on some form of federal law, the federal law
will accept (as the most reasonable explanation) that the state court decided
the case the way it did b/c it believed that federal law required it to do so.
• If a state court chooses merely to rely on federal precedents as it would
on the precedents of all other jurisdictions, then it need only make clear
by a plain statement that the federal cases are being used only for the
purpose of guidance, and do not themselves compel the result that the
court has reached. In this way, both justice and judicial administration
will be greatly improved. If the state court decision indicates clearly and
expressly that it is alternatively based on bona fide separate, adequate,
and independent grounds, we, of course, will not undertake to review the
decision.
 The principle that we will not review judgments of state courts that rest on
adequate and independent state grounds is based, in part, on the limitations of
our own jurisdiction. The jurisdictional concern is that we not render an
advisory opinion, and if the same judgment would be rendered by the state
court after we corrected its views of federal laws, our review could amount to
nothing more than an advisory opinion.
 When state courts interpret state law to require more than the federal
constitution requires, the citizens of the state must be aware that they have the
power to amend state law to ensure rational law enforcement.

Fourth Amendment:
• Look at the language of the 4th amendment:
o “The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.”
• Two Clauses:
o Part 1) “Reasonableness” Clause (Reasonableness requirement
of the 4th Amendment)
 Tells us what the amendment seeks to prohibit (or, what right we hold against
the gov’t) – this portion of the text states:
 • Who is covered (people)
• What is covered (persons, homes, papers, & effects)
• Nature of the protection (to be secure…against unreasonable searches &
seizures)
 Covers all 4th Amendment contacts
o Part 2) Warrants/Probable Cause clause (Particularity
Requirement)
 Relates to warrants
 Tells us what is required for a warrant to be issued (probable cause {for
search& seizure}, supported by oath or affirmation) and tells us something
about the form of the warrant itself (particularly describing the place to be
searched, and the persons or things to be seized).
• Great Debate over the 4th Amendment Clauses:
o Relates to the connection b/w the “Reasonableness Clause” and the “Warrant Clause”
• Language in the first clause limits the 4th amendment to cases actually involving
searches and seizures of “persons, houses, papers and effects”
SEIZURES OF THE PERSON
• 4 DIFFERENT TYPES OF CONTACTS
o Consensual Contact
 Does not implicate the 4th amendment
o Brief Terry-type Stop
 Need “reasonable suspicion”
o Full Blown arrest/search
 Need “probable cause” + warrant or warrant exception
o Administrative/special needs seizure
 Must be “reasonable”
• DEFINITION OF WHEN A SEIZURE OCCURS
o TERRY v. Ohio (1968) (Warren, CJ)  this case gives us a physical example of what
a seizure is and when it occurs under the 4th amendment.
 SEIZURE OF A PERSON
• Probable cause = reasonable belief
• Stop & Frisk = reasonable suspicion backed by articulable facts
• Seizures under 4th Amendment not limited to just seizures based upon
probable cause
• Question: How did the Supreme Court define when a “seizure” of the
person occurs?
o Answer: “Whenever a police officer accosts an individual and
restrains his freedom to walk away” regardless of whether formal
arrest is made.
• Actual physical seizure makes it clearer that there is a seizure.
o “Obviously, not all personal intercourse between policemen and
citizens involves “seizures” of persons. Only when the officer, by
means of physical force or show of authority, has in some way
restrained the liberty of a citizen may be conclude that a “Seizure”
has occurred.
 REASONING:
• The exclusionary rule has limitations as a tool of judicial control.
• The government's interest in preventing harm must be balanced against
the invasion into a person's privacy. GI v DI
 • The policeman should use an objective test, and be able to point to
specific and articulable facts which reasonably justify the intrusion.
Standard would the facts available to the officer at the moment of the
seizure or the search Warrant a man of reasonable caution in the belief
that the action taken was appropriate? Anything less would invite
intrusions upon constitutionally protected rights!
• It would be unreasonable to require that the policeman take unnecessary
risks. He has a need to protect himself and others in situations where he
lacks probable cause for arrest.
 HOLDING OF COURT:
• 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 persons with whom he is dealing may be
armed and presently dangerous; where in the course of investigating this
behavior he identifies himself as a policeman and makes reasonable
inquiries; and where nothing in the initial stages of the encounter serves
to dispel his reasonable fear for his own 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 such persons in an attempt to
discover weapons which might be used to assault him.
• BUS SWEEPS (Seizures of the person)
o Florida v. BOSTICK (1991) (O’Connor, J.)
 Focus on single factor (such as the fact that the encounter occurred on a bus)
incorrect.
 In cases like this where suspect has voluntarily placed himself in confined
quarters and defendant’s “freedom of movement {is} restricted by a factor
independent of police conduct,” the correct test for whether a seizure occurred
– is whether a “reasonable person would feel free to decline the officer’s
requests or otherwise terminate the encounter.”
 Test for SEIZURE:
• “Would reasonable person feel free to decline the officer’s requests or to
otherwise terminate the encounter?” (Whether or not a reasonable
person feels free to leave.)
o This test is applied to the “reasonable innocent person”
 PER SE SEIZURE if you get on the bus and “search & ask questions of
people”
o not a seizure of the people on the bus or the person that they are
asking to search their bags; the police officers are merely asking
questions.
 Reasoning:
• The court reasoned that the officers did not show any use of authority or
displayed any weapons which would make the defendant seized under the
4th amendment. The officers clearly informed the defendant of his rights
to refuse their request to search the luggage. The defendant made the
choice of riding in a bus and the fact that he felt not free to leave in the
crowded bus environment does not mean that he was seized under the 4th
amendment.
• SEIZURE BY PURSUIT (Seizures of the person)
o California v. HODARI D (1991) (Scalia, J.)
 Submission to show of authority is required.
 • Just b/c you grab s/o and hold them doesn’t mean that the seizure is
continuing. If you break away from a seizure then you are not seized
during that time. If you are not seized then the evidence can be used by
the government.
 QUESTION: What rules did the Supreme Court adopt for cases like this involving
a fleeing suspect?
• Answer:
o With regard to show of authority by police, no seizure occurs unless
and until suspect submits to assertion of authority.
o Must either have actual physical force or submission to lawful
authority.
o REASONING:
 It was held that even if, as conceded by the state, the officer's pursuit of the
accused had not been based on reasonable suspicion, the cocaine discarded by
the accused was not the fruit of a "seizure" of his person within the meaning of
the Fourth Amendment, because (1) an arrest--the quintessential seizure of the
person under Fourth Amendment jurisprudence--requires either (a) the
application of physical force with lawful authority, or (b) submission to the
assertion of authority; (2) the accused had not been touched by the officer at
the time he discarded the cocaine; and (3) assuming that the officer's pursuit of
the accused constituted a show of authority enjoining the accused to halt, the
accused did not comply with that injunction and therefore the D not seized until
he was tackled.

MINOR LEAGUE SEIZURES

SEIZURES SHORT OF AN ARREST
• FOURTH AMENDMENT ROADMAP
o MINOR LEAGUE SEARCH OR SEIZURE
 Terry-type; must be reasonable
o MAJOR LEAGUE SEARCH OR SEIZURE
 Probable cause + warrant or warrant exception
o Administrative, Special needs searches or seizures –
 inventory, drug testing, check lanes, etc.;
 must be “reasonable”
• TERRY STOP
o TERRY v. Ohio (1968) (Warren, CJ)
 TERRY STOP & FRISK is ONLY for weapons.
• Terry Stop = Brief stop & frisk of a person whose behavior a police officer
reasonably considers suspicious and dangerous.
 FRISK  cop’s reasonable suspicion that the suspect has a weapon
 THE REASONABLENESS OF THE SEIZURE:
• Testing Police conduct by the 4th amendment’s general proscription
against unreasonable searches and seizures
 Next time you see an “on the street encounter” you do not need to go through
the balancing test, b/c it was done for us in this case. If you come across the
“on the street” encounter – the police officer’s rational inferences.
 Rationale:
 • Court finds that probable cause and warrant requirement is not required
in this situation because of the immediacy of the situation – a cop
wouldn’t have time to run and get a warrant in order to search the person
suspended could have been gone and got rid of any incriminating
evidence on them.
 Analysis: Court determines if it is reasonable (Re-read Page 404-405) 
• REASONABLENESS TEST
o G.I. vs. D.I.
• REASONABLE SUSPICION: Specific & articulable facts that give
rise to a particularized and objective basis for suspecting an
individual of criminal activity; required before a police officer
may stop an individual in public.
• Governmental Interests
o Officer and public safety
o Crime prevention
• Degree of Intrusiveness Interests
o Officer McFadden had a really low range of intrusiveness – he was
only looking for weapons – he did a pat down and only went into a
pocket to get the weapon that he felt on the guy
o Didn’t go into the pockets until he found a weapon
o WHAT REASONABLE SUSPICION ALLOWS THE OFFICER TO DO:
 If the officer has reasonable suspicion of one of the things
above, then he can search only for weapons. (They CANNOT
search for drugs, for false identification, etc.)
 They can do a cursory search only for weapons. That is
specifically what makes this “frisk” permissible under the 4th
amendment.
 Not all “seizures” are “arrests” even though all “arrests” are “seizures.” If the
police accost a subject on the street or elsewhere and restrain her freedom to
walk away, the subject has been “seized.”
• “Only when the officer, by means of physical force or show of authority,
has in some way restrained the liberty of a citizen may be conclude that a
“seizure has occurred,”
• U.S. v. CORTEZ (1981) – Elaboration on the Terry-Standard: “Totality of
Circumstances”
o DRESSLER Notes: In furtherance of the state’s interest in preventing and investigating
crime, a police officer with “particularized and objective basis for suspecting (a)
particular person…of criminal activity” may forcibly detain the person for a brief
period and question him or her.
o “TOTALITY OF THE CIRCUMSTANCES”
 Element #1:
• The assessment must be based upon all the circumstances.
“totality of the circumstances” (From this data a trained officer
draws inferences and makes deductions – inferences and deductions that
might well elude an untrained person)
o Various objective observations
o Information from the police reports (if such are available)
o Consideration of the modes or patterns of operation of certain kinds
of lawbreakers
• This process does not deal with hard certainties, but with probabilities.
 • The evidence collected must be seen and weighed not in terms of library
analysis by scholars, but as understood by those versed in the field of law
enforcement.
 Element #2:
• An assessment of the whole picture must yield a particularized
suspicion – it is the concept that the process just described in element
#1 – must raise a suspicion that the particular individual being stopped is
engaged in wrongdoing.
o Difference between reasonable suspicion and probable cause:
 Reasonable suspicion is less demanding standard of proof, a stop is permissible
upon something less than the fair probability standard that defines probable
cause
 Some courts have defined reasonable suspicion as a fair possibility (as opposed
to probability) of criminal activity
• U.S. v. SOKOLOW (1989) (Rehnquist, CJ)
o The profiling that takes place here is based upon the suspect’s behavior.
 Profiling based upon behavior is constitutionally acceptable.
 Ex. Facts which match a drug courier profile may provide the necessary
reasonable suspicion for a stop under Terry.
o Reasonable suspicion is considerably less then based upon a preponderance of
evidence.
 Reasonable Suspicion If you are looking for a gage then reasonable suspicion is
considerably less than a great weight of evidence (more likely than not).
 Preponderance of Evidence The greater weight of the evidence (sounds like
“more likely” than not)
o Facts
 D was stopped at the Honolulu airport by agents who knew that
• he paid 2,100 for 2 airplane tickets from a roll of $20 bills
• he traveled under a name that did not match the name under which his
telephone number was listed
• his original destination was Miami, a source city for illicit drugs
• He stayed in Miami for only 48 hrs, even though a round-trip flight from
Honolulu to Miami takes 20 hrs.
• he appeared nervous during his trip
• he checked none of his luggage
o Reasoning
 A court sitting to determine the existence of reasonable suspicion must require
the agent to articulate the factors leading to that conclusion, but the fact that
these factors may be set forth in a profile does not somehow detract form their
evidentiary significance as seen by a trained agent.
• EQUAL PROTECTION CLAUSE
o It isn’t the 4th amendment that guides us  it is the equal protection clause that
guides us.
 4th amendment is subject to abuse  need to have your watchful eyes on this
as a prosecutor and a defense attorney.
 4th amendment is very relevant to Criminal Procedure. We are living in a major
4th amendment time.
• COMPANION CASE TO TERRY
o SIBRON v. New York (1968) (Warren, CJ)
 Use this case as an example of a “yin&yang” of Terry Case
  Facts: “You know what I’m after,” and reaches into defendant’s coat pocket as
does defendant and officer comes up with heroin.
 Holding: No reasonable suspicion of criminal activity and no reasonable
suspicion that Sibron was armed. (Insufficient reason to stop & frisk)
 Mere presence around drug users is not enough to provide reasonable suspicion
justifying a stop.
• Reasonable suspicion can be based upon hearsay of a reliable informant – right to
frisk may be immediate if reasonable suspicion exists for frisk
o ADAMS v. WILLIAMS (1972)
 Facts: Informant told officer that car occupant was carrying drugs and had gun
in his waist. The cop comes up to the car, says to the guy to open the door and
get out of the car. The guy instead rolls down his window. The cop reached
into the car and grabbed the guy’s weapon.
 Reasoning
• The officer had ample reason to fear for his own safety upon being told by
an informant that D, seated in a nearby car, was carrying narcotics and
had a gun at his waist.
• rather than comply with the policeman’s request to step out of the car so
that his movements could more easily be seen, the revolver allegedly at
Williams’ waist became an even greater threat.
• Under these circumstances the policeman’s action in reaching to the spot
where the gun was thought to be hidden constituted a limited intrusion
designed to insure the safety, and we conclude that it was reasonable.

↓POSSIBLE EXAM AREA↓

• REASONABLE SUSPICION TO JUSTIFY STOP: Crime is afoot by the
person stopped
o Illinois v. WARDLOW (2000) (Rehnquist, CJ)
 Unprovoked headlong flight in high crime area may provide
reasonable particularized suspicion
 What evidence would we point to, here in this case, in order to say
that there was reasonable suspicion that crime was afoot?
• What the court cares about:
o High crime area
o Suspect was present in a high crime area
o Suspect displayed nervous behavior
o Head long flight – suspect didn’t want to cooperate
o Police officers were simply doing their job – patrolling the
streets
• The court here does not seem to care about the time of day
 In this situation, you need both of these factors:
• High crime area
• Flight
o Reasoning
 An individual’s presence in an area of expected criminal activity, standing alone, is not enough
to support a reasonable, particularized suspicion that the person is committing a crime. But
officers are not required to ignore the relevant characteristics of a location in determining
whether the circumstances are sufficiently suspicious to warrant further investigation.
  Accordingly, we have previously noted the fact that the stop occurred in a high crime area
among the relevant contextual considerations in a Terry analysis.
 It was not merely respondent’s presence in an area of heavy narcotics trafficking that aroused
the officers’ suspicion but his unprovoked flight upon noticing the police. Our cases have also
recognized that nervous, evasive behavior is a pertinent factor in determining reasonable
suspicion. Headlong flight – wherever it occurs – is the consummate act of evasion; it is not
necessarily indicative of wrongdoing, but it is certainly suggestive of such.
 While this court had previously held that refusal to cooperate - without more - does not furnish
the minimal level of objective justification needed for a detention or seizure, “unprovoked flight
is simply not a mere refusal to cooperate”; and that while it “is undoubtedly true” that “there
are innocent reasons for flight from police, Terry “recognized that the officers could detain the
individuals to resolve the ambiguity.”

• PLAIN TOUCH/PLAIN FEEL CASE:

o Minnesota v. DICKERSON (1993)
 Basis for TERRY FRISK is OVER
• So, if you continue to manipulate the situation b/c it is readily apparent to
you that upon plain feel/plain touch that what you are touching is
contraband (probable cause)  then you can seize it under Minnesota v.
Dickerson
 UNDER TERRY FRISK:
• If you pat a person down and you don’t feel a weapon, but you do feel
something else in their pocket. And if you don’t know what is in their
pocket upon plain touch/plain feel, then you can cannot seize it b/c you
have no probable cause to know that it is contraband.
• Using the balancing test to extend TERRY-STOP to articulable facts
based upon past criminal activity
o U.S. v. HENSLEY (1985) (O’Connor, J.)
 This reasonable suspicion can be based upon past crime activity.
• Using balancing test to extend the “Terry-stop” to articulable facts based
upon past criminal conduct
 Terry-stop extended to reasonable suspicion based upon past criminal activity
 can be done for felonies or crimes involving violent activity (misdemeanors)
 Reasoning
• Balance the nature and quality of the intrusion on personal security against the
importance of the gov’t interests alleged to justify the intrusion. When this balancing
test is applied to stops to investigate past crimes, we think that p/c to arrest need not
always be required.
• The factors in the balance may be somewhat different when a stop to investigate past
criminal activity is involved rather than a stop to investigate ongoing criminal conduct.
o A stop to investigate an already completed crime does not necessarily promote
the interest of crime prevention as directly as a stop to investigate suspected
ongoing criminal activity.
o Similarly, the exigent circumstances are not necessarily as pressing long
afterwards.
o Public safety may be less threatened by a past crime than it is by a suspect who
is currently in the process of violating the law.
o Finally, officers making a stop to investigate past crimes may have a wider range
of opportunity to choose the time and circumstances of the stop.
o Restraining police action until after probable cause is obtained would not only
hinder the investigation, but might also enable the suspect to flee in the interim
and to remain at large.
o if police have a reasonable suspicion, grounded in specific and articulable facts,
that a person they encounter was involved in or is wanted in connection with a
completed felony, then a Terry stop may be made to investigate that suspicion.
• FRISK OF CAR
o Michigan v. LONG (1983) (O’Connor, J.)
 Frisk of car is limited to a search for weapons (passenger compartment, any
where weapons can be found/located)
• This creates an alternative for law enforcement officers
 This is an extension of an authorized weapons frisk to the passenger
compartment of a lawfully stopped vehicle.
 Reasonable suspicion – suspect is dangerous and he might be able to easily get
a hold of a weapon.
 Facts
• The officers saw a large hunting knife on the floorboard, so Long was
frisked and one officer then entered the vehicle and found an open pouch
of marijuana under an armrest.
 Rule
• A search of the passenger compartment of an automobile, limited to
those areas in which a weapon may be placed or hidden, is permissible if
the police officer possesses a reasonable belief based on specific and
articulable facts which, taken together with the rational inferences from
those facts, reasonably warrant the officers in believing that the suspect
is dangerous and the suspect may gain immediate control of weapons.
 Reasoning
• A Terry-investigation such as the one that occurred here, involves a police investigation
“at close range,” when the officer remains particularly vulnerable in part b/c a full
custodial arrest has not been effected, and the officer must make a quick decision as to
how to protect himself and others from possible danger
o Terry Encounters
 A Terry suspect on the street may, despite being under the brief control of
a police officer, reach into his clothing and retrieve a weapon, so might a
Terry suspect in Long’s position break away from the police control and
retrieve a weapon from his automobile.
 If the suspect is not placed under arrest, he will be permitted to reenter his
automobile and he will then have access to any weapons inside.
• “PROTECTICE SWEEP” CASE
o Maryland v. BUIE (1990) (White, J.)
 Protective Sweep = when the officers are acting for their own protection
 TEST:
• Based upon probable cause in the arrest warrant  officers don’t need
anymore probable cause then what is given by the arrest warrant
o They can search the guy upon arrest, as well as anything within the
guy’s wingspan
• To look beyond the person’s wingspan….
o Officer’s need Reasonable suspicion that the house harbors a
dangerous individual that allows you to look for persons who are
carrying dangerous weapons.
 Officer’s can only look to see if there is a dangerous person
hiding in an area
• Can search in places big enough to fit a (dangerous)
person
 Officers can stay in the house no longer then it takes to arrest the guy and
dispel reasonable suspicion (that the house might harbor a dangerous person).
 Officers are allowed to go to the house, search the suspect under an arrest
warrant  but they CANNNOT search the house.
  It is good to get a search warrant for the house @ the same time you get the
arrest warrant,
 BRIEF OF THE CASE:
• Facts
o 2 men (one wearing a red running suit) committed an armed robbery
• Holding
o A warrant was not required
o An incident to the arrest the officers could, as a precautionary matter and without
probable cause or reasonable suspicion, look in closets and other spaces
immediately adjoining the place of arrest from which an attack could be
immediately launched.
o Beyond that, however, we hold that there must be articulable facts which, taken
together with the rational inferences from those facts, would warrant a
reasonable prudent officer in believing that the area to be swept harbors an
individual posing a danger to those on the arrest scene. – cursory inspection
• Search Warrant for a Place:
o Requirements to get a Search warrant for a house search:
 Officers need probable cause that evidence exists and that it is located at that
place
o Purpose of a Search Warrant
 Search warrants allow cops to search the premises (place)
• Reasonable To Order Driver Out of Lawfully Stopped Car
o Pennsylvania v. MIMMS (1977)
 When you lawfully stop a car, it is reasonable to order a driver
 Facts
• Officers ordered the driver our of the car, which resulted in the
observation of a large bulge under his pocket, and this prompted a frisk
and discovery of a gun.
• Reasonable to Order Passengers Out of Lawfully Stopped Car
o Maryland v. WILSON (1977)
 An officer making a traffic stop may order passengers to get out of the car
pending completion of the stop.
 There is not the same basis for ordering the passengers out of the car as there
is for ordering the driver out. However, the additional intrusion on the
passenger is minimal. And it is justified in light of the fact that “danger to an
officer from a traffic stop is likely to be greater when there are passengers in
addition to the driver in the stopped car.”
• NO “BRIGHT LINE” TIME LIMITATION
o United States v. SHARPE (1985) (Burger, CJ)
 A seizure based upon reasonable suspicion may be permitted although it lasts
longer (20 minutes) than those that occurred in TERRY
 If an officer smells marijuana, then he will have probable cause that marijuana
exists
 No warrant needed: Rationale  Vehicles are readily mobile and therefore there
is a reduced expectation or privacy
 IF YOU ARE BEING HELD THAT LONG, YOU NEED MORE EVIDENCE –
MORE PROBABLE CAUSE IS NEEDED.
 BRIEF OF CASE:
• Facts
o overloaded camper truck traveling in tandem with a Pontiac
• Rule
 oIf an investigative stop continues indefinitely, at some point it can no longer be
justified as an investigative stop.
o Past cases impose no rigid time limitation on Terry stops.
• Reasoning
o In assessing whether a detention is too long in duration to be justified as an
investigative stop, we consider it appropriate to examine whether the police
diligently pursued a means of investigation that was likely to confirm or dispel
their suspicions quickly, during which time it was necessary to detain the
defendant.
o A court making this assessment should take care to consider whether the police
are acting in a swiftly developing situation, and in such cases the court should not
indulge in unrealistic second-guessing.
o The fact that the protections of the public might, in the abstract, have been
accomplished by less intrusive means does not, in itself, render the search
unreasonable.
• PERMISSIBLE EXTENT OF A TEMPORARY SEIZURE
o HIBEL v. Sixth Judicial District Court (2004)
 Can a state law require a suspect to provide his name without violating the 4th
amendment? YES
 An officer does not have p/c to arrest s/o if the suspect doesn’t provide them
with identification.
• Even if a State says that an individual must provide identification upon
request, if the individual refuses it still not a requirement made by the 4th
amendment.
 Facts Nevada’s “stop and identify” statute that a person lawfully stopped under Terry “shall
identify himself.”
 Rule
• A state can require that a citizen to provide a police officer with a name, if so asked.
 Effects of the Rule:
• This rule has limited 4th amendment significance
• It does not affect when a Terry-stop approves a crime definition permitting arrest in the
rare event a suspect refuses to give a name.
• This decision is so limited because the Court, relying upon a sentence in the state court
decisions asserting that the suspect is only required “to state his name,” assumed that
“the statute does not require a suspect to give the officer a driver’s license or any other
document,” and thus limited its holding to the “question whether a State can compel a
suspect to disclose his name during a Terry-stop.”
 Reasoning
• The 4th amendment itself cannot require a suspect to answer questions.
• Using a Terry-style balancing of interests, the Court answered the issue in the
affirmative, reasoning that:
o The request for identity has an immediate relation to the purpose, rationale, and
practical demands of a Terry-stop
o The threat of criminal sanction helps ensure that the request for identity does not
become a legal nullity; and
o Such threat does not alter the nature of the stop itself provided that the required
for identification was “reasonably related in scope to the circumstances which
justified the stop.”
 Using a Terry-style balancing test – the Court answered the latter question in
the affirmative, reasoning: (1) that the request for identity has an immediate
relation to the purpose, rationale, and practical demands of a Terry-stop; (2)
that the “threat of criminal sanction helps ensure that the request for identity
does not become a legal nullity; (3) (that such threat “does not alter the nature
of the stop itself” provided (as is essential under TERRY) that the “request for
identification was ‘reasonably related in scope to the circumstances which
justified’ the stop.”
o DRUG DOGS
 Illinois v. CABALLES (2005)
• Drug dog doesn’t exceed the scope of permissible basis for the search of
the car.
 Rule
• A dog sniff would not change the character of a traffic stop that is lawful at its inception
and otherwise executed in a reasonable manner, unless the dog sniff itself infringed
respondent’s constitutionally protected interest in privacy.
 Reasoning
• The initial seizure of respondent when he was stopped on the highway was based on
probable cause, and was concededly lawful. It is nevertheless clear that a seizure that is
lawful at its inception can violate the 4th amendment if its manner of execution
unreasonably infringes interests protected by the Constitution. A seizure that is justified
solely by the interest in issuing a warning ticket to the driver can become unlawful if it is
prolonged beyond the time reasonably required to complete that mission.
• In our view, conducting a dog sniff would not change the character of a traffic stop that
is lawful at its inception and otherwise executed in a reasonable manner, unless the dog
sniff itself infringed respondent’s constitutionally protected interest in privacy.
o YOU DON’T NEED TO BE TOLD THAT YOU ARE “FREE TO GO”
 Ohio v. ROBINETTE (1996) (Rehnquist, CJ)
• 4th amendment does not require that a lawfully seized person be advised
that he is “free to go” before his consent to a car search is recognized as
voluntary.
o This is subject to abuse, but then again, everything in criminal
procedure is.
• Facts
o A sheriff’s deputy on “drug interdiction patrol” stopped D for
speeding. The deputy examined D’s license, ran a computer check
indicating no previous violations, issued a verbal warning and
returned D’s license, and then immediately asked D if he had drugs
in the car; when defendant answer in the negative, the deputy
asked to search the car and D consented, resulting in a search
which uncovered a small amount of marijuana and a single pill
which was a controlled substance.
• Reasoning
o The State’s per se rule was deemed inconsistent with the approach to the 4th
amendment issues by the Supreme Court, which has consistently eschewed
bright line rules, instead emphasizing the fact-specific nature of the
reasonableness inquiry.
o The court reasoned that requiring such warnings would be just as impractical as
the right to refuse consent warnings held unnecessary by the Court in
Schneckloth v. Bustamonte
o Chief Justice declared that the state court was in error b/c the subjective
intentions of the officer did not make the continued detention of respondent
illegal under the 4th amendment.
o Permissible to Detain persons on the premises of their home
during an authorized search of their home looking for contraband
 Michigan v. SUMMERS (1981) (Stevens, J.)
• Is it constitutionally permissible to detain this guy to authorize a search
within the home?
o The court says “yes.” The court says this is a different situation
then an “on the street seizure.” There are several interests
involved in this situation.
 • Facts
o Detroit police officers were about to execute a warrant to search a
house for narcotics as they ran into respondent, whom was
descending the front steps.
• Rule
o In assessing the justification for the detention of an occupant of
premises being searched for contraband pursuant to a valid
warrant, both the law enforcement interest and the nature of the
articulable facts supporting the detention are relevant.
 Most obvious is the legitimate law enforcement interest in
preventing flight in the event that incriminating evidence is
found.
 Less obvious, but sometimes of greater importance, is the
interest in minimizing the risk of harm to the officers.
• Reasoning
o Upheld the seizure on the basis of the principle derived from Terry and related cases, namely, that
“some seizures constitute such limited intrusions on the personal security of those detained and are
justified by such substantial law enforcement interests that they may be made on less than probable
cause, so long as police have an articulable basis for suspecting criminal activity”:
 Of prime importance in assessing the intrusion is the fact that the police had obtained a
warrant to search respondent’s house for contraband. A neutral and detached magistrate
had found probable cause to believe that the law was being violated in that house and had
authorized a substantial invasion of the privacy of the persons who resided there. The
detention of one of the residents while the premises were searched, although admittedly a
significant restraint on his liberty was surely less intrusive than the search itself.
o The type of detention imposed here is not likely to be exploited by the officer or unduly prolonged in
order to gain more information, because the information the officers seek normally will be obtained
through the search and not through the detention.
o B/c the detention in this case was in respondent’s own resident, it could add only minimally to the
public stigma associated with the search itself and would involve neither the inconvenience nor the
indignity associated with a compelled visit to the police station.
o Both the law enforcement interest and the nature of the articulable facts supporting the detention are
relevant.
 Law Enforcement Interests:
• Interest in preventing flight in the event that incriminating evidence is found.
• Interest in minimizing the risk of harm to the officers.
o MUEHLER v. MENA (2005) – extension of Summers case
 As a safety matter the court approved the use of appropriately used handcuffs
while detaining an individual.
 Rule As a safety matter, the court approved the use of appropriately used
handcuffs while detaining an individual.
 Reasoning
• Handcuffs are more intrusive then telling someone to stay right there –
but it is okay to use them in this situation
• Detention and search of persons while executing a warrant in premises
open to public – the mere propinquity to others independently suspected
of criminal activity is not enough to provide reasonable suspicion for Terry
frisk (or p/c for search)
• Detention and search of persons while executing a warrant in premises open to the public:
o YBARRA v. Illinois (1979) (Stewart, J.)
 The “mere propinquity to others independently suspected of criminal activity” is
NOT enough to provide reasonable suspicion for TERRY-FRISK for probable
cause search
 There needs to be a reasonable suspicion in order to justify a frisk upon s/o.
 Here, it was okay for the cops to detain him, but not to frisk him b/c there was
no p/c.
 A “STOP” has different requirements than a “FRISK” does.
  Facts
• On the basis of information from an informant that he had frequently and recently observed tinfoil
packets of heroin behind the bar and on the person of the bartender of a certain tavern. Ybarra’s
pocket, and tinfoil packets of heroin were found therein.
 Reasoning
• The authorities did not have probable cause at the time the warrant was issued to believe that any person
found on the premises of the Aurora Tap Tavern (aside form the bartender) would be violating the law.
o The complaint for search warrant did not allege that the bar was frequented by persons illegally
purchasing drugs.
o It did not state that the informant had ever seen a patron of the tavern purchase drugs from the
bartender or from any other person.
o Nowhere in the complaint did it even mention the patrons of the Aurora Tap Tavern.
• Probable cause was still absent when the police executed the warrant.
o At the time of entering the Tavern, the police had no reason to suspect Ybarra of committing a crime.
He did nothing suspicious or to give a gesture/movement that he was concealing contraband.
• The warrant was based on probable cause to search the tavern in which Ybarra happened to be at the time the
warrant was executed.
o But a person’s mere proximity to others independently suspected of criminal activity does not, without
more, give rise to probable cause to search that person.

ARREST AND THE EQUIVALENT

• When does a permissible Minor League Seizure become a Major League Seizure Requiring
P/C?
• DUNAWAY v. NY (1979) (Brennan, J.)
o Forcible movement of suspect to police station can be de facto arrest, requiring
probable cause
o Holding: The treatment of petitioner, whether or not it is technically characterized as
an arrest, must be supported by probable cause b/c detention for custodial
interrogation – regardless of its label – intrudes so severely on interests protected by
the 4th amendment as necessarily to trigger the traditional safeguards against illegal
arrest.
o Reasoning:
 The detention of petitioner was in important respects indistinguishable from a
traditional arrest. Petitioner was not questioned briefly where he was found.
Instead, he was taken from a neighbor’s home to a police car, transported to a
police station, and placed in an interrogation room. He was never informed that
he was “free to go”; indeed, he would have been physically restrained if he had
refused to accompany the officers or had tried to escape their custody.
 The application of the 4th amendment requirement of probable cause doesn’t
depend on whether an intrusion of this magnitude is termed an arrest under
state law. The mere facts that petitioner was not told he was under arrest, was
not booked, and would not have had an arrest record if the interrogation had
proved fruitless, obviously don’t make petitioner’s seizure even roughly
analogous to the narrowly defined intrusions involved in TERRY and its progeny.
Indeed, any exception that could cover a seizure as intrusive as that in this case
would threaten to swallow the general rule that 4th amendment seizures are
reasonable only if based on probable cause not amount to technical arrests.
•
o Florida v. ROYER (1983)
 Under facts of this case, 15 minute detention required probable cause.
 Facts:
• Man observed at airport by two plain clothes officers. Appeared to be a drug courier.
Man purchased one way ticket to NY and checked baggage. Put name of “Holt” on bags.
The two cops approached, identified and asked if he had a moment to talk. He said
“yes.” Upon request, but without consent, man produced his ticket and driver’s license.
 Ticket and bags had the same name, but driver’s license said “Royer.” Man became
nervous and cops said there were narcs and that they suspected him. He didn’t give info
back to man and asked him to accompany them to a room forty feet away. The man
said nothing, but went into large storage closet with a small desk and two chairs.
Without consent, the officers got the bags and brought them into the room. They asked
the man if he would consent to a search of the bags. Without orally responding, he
unlocked the suitcases and the cop looked through without seeking further assent. The
cops found drugs in the suitcases. The man said he didn’t know the combo for the
second suitcase and when asked if they could look through it he said go ahead. It was
broken and pot was found in the second suitcase.
• Fingerprinting as a basis for a TERRY-STOP  transporting to police
station for prints generally requires probable cause
o DAVIS v. Mississippi (1969) (Brennan, J.)
 They only had fingerprints (from a bunch of people). They moved the
defendant to the police station and fingerprinted him.
 Here, they needed probable cause and they didn’t have it.
 Transporting to the police station generally requires probable cause.
 The S.C. said that it is probably okay to come to someone’s house and
fingerprint them.
• Taking someone down for questioning is an unconstitutional seizure – must
have more.
o KAUPP v. Texas (2003) (per curiam)
 This is not a seizure. The evidence points to arrest even more starkly than the
facts of Dunaway. Cops in bedroom of 17 year old boy at 3 a.m. The officers
said we need to go and talk. In his underwear, he was taken in a cop car to an
investigation room.
 Unanimous opinion for the Supreme Court that said this was an unconstitutional
seizure.
• DELAYS
o U.S. v. PLACE (1983) (O’Connor, J.)
 The defendant was delayed for 90 minutes when the police/security took his
luggage from LaGuardia to Kennedy airport. They had drug dogs sniff the bags
and they found drugs. They had probable cause after finding the drugs to get
an arrest warrant or a search warrant.
 A seizure of the luggage is a seizure of the person (b/c it is so intimately
connected)
 You need probable cause to search. It would have been constitutional if they
sniffed the luggage had the drug dogs sniff the bags right before they took
them.
 But since they transported the luggage and took too much time to do their
investigation, then the police were at fault.

PROBABLE CAUSE
• Questions to think about:
o What is it?
o Where does it come from?
o When do you have it?
• Demonstrating Probable Cause – the creation of a two-pronged test
o SPINELLI v. U.S. (1969) (Harlan, J.)
 RULE:
 • To give rise to probable cause an informant’s tip must either contain:
o 1) A sufficient statement of the underlying circumstances from
which the informant gained his knowledge
o 2) Information supporting the applying officer’s belief that the
informant is reliable and credible.
 Here, the informer’s report must be measured against Augilar’s standards (the
two prong test). If that doesn’t quite meet up, then you can use police
corroboration. You do not use police corroboration until you have done the 2
prong test.
 In DRAPER, the informant gave VERY SPECIFIC details about what the defendant
would be wearing and where he was coming from…therefore the magistrate
confronted with such information could reasonably infer that the informant had
gained his information in a reliable manner. This would get around the
corroboration prong.
 Facts:
• Affidavit said that Spinelli crossed bridges from Missouri to Illinois. He parked his car in a
lot of residence in Missouri. He had 2 telephones in his apartment that he lived in. He is
known as a gambler. The police were informed that he was accepting wagers through
his telephones in Missouri.
 Reasoning in this case:
• Without the a statement of detailing the manner in which the information was gathered,
it is very important that the tip describe the accused’s criminal activity in sufficient detail
so the magistrate may know that he is relying on more than a casual rumor or an
accusation based on the accused’s general reputation.
• Here, the informer’s tip, even when corroborated to the extent it was, is not sufficient to
provide a basis for a finding of probable cause.
 AGUILAR CASE
• Ct. issued a warrant based on an affidavit from officer who said he received credible info
about narcotics. Police got warrant and found narcotics. Magistrate issues warrant b/c it
is credible, but in this case, magistrate does not know credibility. Ct. said you have to
give us something about credibility and corroboration to issue a warrant.
• Created Two Prong Test:
o Credibility of Informant
 How did they get that knowledge? It helps the judge know that this is
valid information.
o Veracity
 Reliability of the information. How much detail is needed
• TWO PRONG TEST FOR DETERMINING PROBABLE CAUSE BASED ON
INFORMANT’S TIP IS ABANDONED (Agu. & Spin. Test gone!) IN FAVOR
OF A LESS TECHNICAL TOTALITY OF THE CIRCUMSTANCES TEST
o Illinois v. GATES (1983) (Rehnquist, J.)
 Abandonment of the Aguilar two-pronged test in favor of the “totality of the
circumstances” test; basis of knowledge and veracity still relevant to common
sense question regarding existence of probable cause.
 Facts: Based on a corroborated informant’s tip regarding Gates (D) travel
plans police obtained a search warrant and discovered about 350 pounds of
marijuana in Gates’ automobile.
• Search Warrant Affidavit
o Anonymous Handwritten Letter May 3, 1978: “This letter is to inform you that you have a
couple in your town who strictly make their living on selling drugs.
• What Additional information did police obtain as result of tip and
place in affidavit?
 o Detective Mader, Bloomingdale PD, learned from the office of the
Illinois Secretary of State, that an Illinois driver’s license had been
issued to one Lance Gates, residing at a stated address in
Bloomingdale.
• Additional Information
o Learned from a police officer assigned to O’Hare Airport that
“L.Gates” had made a reservation on Eastern Airlines flight 245 to
West Palm Beach, Florida, scheduled to depart from Chicago on May
5th at 4:15 p.m.
o DEA agent later reported to Mader that Gates had boarded the flight
to Florida…
 RULE: A search warrant based on an informant’s tip may be properly issued if,
given the totality of the circumstances set forth in the warrant application,
including the veracity and basis of knowledge of the informant and any
corroboration of the informant’s information, there is a fair probability that
contraband or evidence will be found in the place to be searched.
 Now if one is lacking another can offset:
• Bad/lacking info
• However used him before 15-20 times balancing test
• Weighed all aspects together
• After Gates, what is task of magistrate when asked by police for a warrant?
o “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” of persons supplying
hearsay information, there is a fair probability that contraband or evidence of a
crime will be found in a particular place.”
• PROBABLE CAUSE v. REASONABLE SUSPICION:
o Alabama v. WHITE (1990)
 Probable cause, like reasonable suspicion, can be based upon hearsay – the
only difference being the level of suspicion that must be established.
 Facts  Anonymous tip that White could leave named apartment at specified
time in brown station wagon with broken taillight lens on way to named motel
with cocaine in brown attaché case.
• The tip given by tipster gave future behavior of suspect and that tip was
confirmed by the police.
 Reasonable suspicion is a less demanding standard than probable cause not
only in the sense that reasonable suspicion can be established with information
that is different in quantity or content than that required to establish probable
cause, but also in the sense that reasonable suspicion can arise from
information that is less reliable than that required to show probable cause.
• PROBABLE CAUSE, REASONABLE SUSPICION, & ANONYMOUS TIP:

o Florida v. J.L. (2000) (Ginsburg, J.)

 Anonymous tip must exhibit moderate indicia of reliability to justify
stop and frisk
 GATES ANALYSIS applies to reasonable suspicion calculation too
 Facts: Anonymous caller tells police that young black man at particular bus
stop wearing a plaid shirt is carrying a weapon. Police went to bus stop, saw
man matching description, frisked him, and found weapon.
 Holding: Frisk is unreasonable b/c police had no information concerning the

basis of the informant’s knowledge; no information concerning the reliability of
the informant; no predictive information concerning the subject’s conduct that
could be confirmed independently.
o Massachusetts v. UPTON (1984)
 Applying GATES, court found ex-girlfriend information sufficiently reliable to
support magistrate’s determination that there was a “fair probability that
contraband or evidence of crime” would be found in defendant’s home.
 Unidentified female says that there is a trailer filled with stolen stuff. The police
know who she is and ask her if it is her. She detailed the items that were
missing. It shows a relationship b/w the two parties (this explains why she did
not want to be identified) and that she was afraid that he would find out who
ratted him out.
• PROBABLE CAUSE WITH MORE THAN ONE PERSON
o Maryland v. PRINGLE (2003) (Rehnquist, CJ)
 Calculating probable cause at an arrest scene:
• 1) When does the officer have enough to arrest?
• 2) Who can the officer arrest?
 Stopped car for speeding. There were 3 people in the car. Officer saw a wad of
cash in the glove compartment.
 There was probable cause that they were solely possessing drugs and probable
cause that they were jointly possessing drugs
 The court says that the amount of evidence you need is 33 1/3 evidence (all you
need is a reasonable belief of guilt).
 Need more for joint possession.
 Favor probability – common enterprise
 Distinguish b/w this case and Ybarra  in Ybarra the search warrant was for the
bar/bartender. They frisked a person at the bar. There was no probable cause.
 Here, there was fair probability that the people in the car have a common
enterprise and there is a fair probability that there is probable cause to arrest
the three men in the car.
o FRANKS v. DELAWARE (1978) (Blackmun, J.)
 Under limited circumstances, the Court permits a defendant to attack
a facially valid search warrant after the search has occurred.
 A court will permit a D to attack a valid warrant on its face. They have to make
a substantial preliminary showing that there was a false statement in the
affidavit and that this statement affected the magistrates’ decision to give the
police probable cause for the warrant.
 The D must also show all three elements by a preponderance of the evidence.
 It may be sufficient probable cause without the false statement.
 There must be a fair probability for there to be probable cause (pg. 294 note 3)
 Quantity of evidence to establish probable cause is a fair probability not a
substantial probability.

ARREST WARRANTS and RELATED

MATTERS
• Main question:
 o When and under what circumstances do police need an arrest warrant before they
can arrest someone for a crime?
• ARREST IN A PUBLIC PLACE:
o United States v. WATSON
o ATWATER v. CITY OF LAGO VISTA (2001) (Souter, J.)
• ARREST IN THE HOME:
o PAYTON v. New York (1980) (Stevens, J.)
• ARREST IN A 3rd PARTY’S HOME:
o STEAGALD v. United States (1981) (Marshall, J.)

EXIGENT CIRCUMSTANCES:
• WARDEN v. HAYDEN (1967)
• United States v. SANTANA (1976)
• EXIGENT CIRCUMSTANCES LIMITATIONS:
o WELSH v. WISCONSIN (1984) (Brennan, J.)
• Minnesota v. OLSON (1990)
• EXIGENT CIRCUMSTANCES LIMITATIONS:
o VALE v. Louisiana (1970) (Stewart)
• EXIGENT CIRCUMSTANCES & RELATED MATTERS:
o SEGURA v. United States (1984) (Burger, CJ)
o Illinois v. MCARTHUR (2001) (Breyer, J.)
• EXIGENT CIRCUMSTANCES LIMITATIONS:
o MINCEY v. Arizona (1978)
• “KNOCK & ANNOUNCE”
o RICHARDS v. Wisconsin (1997) (Stevens, J.)
o United States v. BANKS (2003) (Souter, J.)

POLICE PRACTICES – ARRESTS,

SEARCHES AND SEIZURES

SEARCHES FOR EVIDENCE

SECTION 2: PROTECTED AREAS & INTERESTS 
• “How does the Supreme Court’s definition of “search” differ from Webster’s
definition?
• If what police did is not a search, then the 4th amendment does not apply.
• SEARCHES – PROTECTED AREAS AND INTERESTS
o KATZ v. United States (1967) (Stewart, J.)
 Telephone booth case
 “What ‘a person knowingly exposes to the public, even in his own
home or office, is not a subject of 4th amendment protection’; what a
 person seeks to preserve as private, even in an area accessible to the
public, may be constitutionally protected.”
 4th amendment applies to not only tangible items, but extends to oral
statements overheard without any physical intrusion.
• In a telephone booth, you expect your words to be private.
 MAJORITY HELD: the police conduct “constituted a ‘search and seizure’ within
the meaning of the 4th amendment” b/c of the intrusion upon the defendant’s
privacy interest.
• This does not mean that privacy is the only interest protected by the 4th
amendment. The 4th amendment also protects the interests in possession
of property and liberty of person, as in U.S. v. Place (detention of
traveler’s luggage 90 minutes was an unreasonable seizure in two
respects, as it constituted a deprivation of defendant’s “possessory
interest in his luggage” and his “liberty interest in proceeding with his
itinerary”).
 J. Harlan’s Concurrence in KATZ: {CURRENT LAW}
• Rule for determining whether particular police investigation activity
constitutes a search within meaning of the 4th amendment:
• TWO PRONG TEST:
o 1) A person has exhibited an actual (subjective) expectation of
privacy, and
o 2) The expectation is one that society is prepared to recognize as
“reasonable.”
 Reasonableness of an expectation of privacy would be
determined by existing laws and practices.
 Interests protected by 4th after KATZ 
• no legitimate privacy interest in illegal activity
• Three legitimate interests held by all citizens that can be impaired by
gov’t activity:
o 1) Interest in being free from physical disruption and
inconveniences
 Can’t just do a body search on anyone
o 2) Interest in keeping personal or embarrassing info private
o 3) Interest in control over and use of his property
• A seizure may occur without search & a search may occur without a
seizure
o OLIVER v. United States (1984) (Powell, J.)
 The special protection accorded by the 4th amendment to the people in their
“persons, houses, papers, and effects,” is not extended to the open fields.
• “Open field is not a person, house, paper, or effect.”
 Holding: “Open fields” doctrine (of Hester Case) by which police entry and
examination of a field is free of any 4th amendment restraints. (This was not
overruled by KATZ)
 Reasoning:
• Open fields do not provide the setting for those intimate activities that the amendment is
intended to shelter from gov’t interference or surveillance. There is no societal interest
in protecting the privacy of those activities, such as the cultivation of crops that occur in
open fields. Moreover, as a practical matter these lands usually are accessible to the
public and the police in ways that a home, an officer or commercial structure would not
be. It is not generally true that fences or no trespassing signs effectively bar the public
from viewing open fields in rural areas. The public and police lawfully may survey lands
 from the air. (For these reasons, the asserted expectation of privacy in open fields is not
an expectation that “society recognizes as reasonable.”)
• No expectation of privacy legitimately attached to “open fields.”
 TEST of legitimacy:
• Whether the government’s intrusion infringes upon the personal and
societal values protected by the 4th amendment.
• THE TEST IS NOT:
o Whether the individual chooses to conceal assertedly “private”
activity.
 Hester Case***Common law distinguished “open fields” from “curtilage”:
• “Open Fields” 
o The land immediately surrounding and associated with the home
o Any area outside the “curtilage” is an “open field”. Therefore define a curtilage
first, and then you’ll know where the “open field” starts.
o RESULT:
 If police clearly meet the definition of an “open field,” the
police can search it without having any 4th amendment
requirements.
• “Curtilage” 
o The area to which extends the intimate activity associated with the
“sanctity of a man’s home and the privacies of life.”
o Any area outside a home or an “open field” is “curtilage”.
o Factors that determine whether an individual reasonably may
expect that an area immediately adjacent to the home will remain
private:
 1) The proximity of the area claimed to be curtilage to the
home
 2) Whether the area is included within an enclosure
surrounding the home
 3) The nature of the uses to which the area is put
 4) The steps taken by the resident to protect the area from
observation by people passing by
o RESULT:
 4th amendment protection has been extended to the
“curtilage” and has been considered part of the home itself.
 U.S. v. DUNN (1987) (Page 253, Comment “E”)
• Facts: Entire ranch was encircled by a fence and barbed wires. Officers ignored wires
and trespassed without warrant. They crossed the outer fence and the interior fence
before they smelled an odor of acid. Crossed an interior wire surrounding a smaller barn
and then around larger barn. There was netting above the gates. Police could not see
through the netting. They approached the gates, shined light through the netting and
saw the drug lab. They left property without entering barn but reentered property twice
without warrant before they finally went to get a warrant.
• Curtilage questions should be resolved with particular reference to four
factors:
o 1) The proximity of the area claimed to be curtilage to the home
o 2) Whether the area is included within an enclosure surrounding the
home
o 3) The nature of the uses to which the area is put
o 4) The steps taken by the resident to protect the area from observation
by people passing by
• Applying these factors, the Court then concluded the barn into which the police looked
was not within the curtilage (DID NOT CONSTITUTE A SEARCH!), as it was 60 yards from
 the house, was outside the area surrounding the house enclosed by a fence, did not
appear to the police to be “used for intimate activities of the home,” and the fences
outside the barn were not of a kind “to prevent persons from observing what lay inside
the enclosed area.”
o Area was outside curtilage, no police intrusion, did not constitute a search
o Search = looking into the barn
• The Court added that even assuming the barn was protected business premises, it still
was no search to look into the open barn from an open field vantage point.
• Access by members of the public
o If an aspect of a person’s life is subject to scrutiny by society, then that person
has no legitimate expectation in denying equivalent access to police.
o Thus, no search occurs if the police obtain information which members of the
public could also obtain.
o Florida v. RILEY (1989) (White, J.)
 Aerial surveillance not a search under certain circumstances
• PLANE IS WITHIN THE NAVIGABLE AIRSPACE SPECIFIED BY LAW.
• Reasoning:
o Any member of the public could legally have been flying over Riley’s property in
a helicopter at the altitude of 400 feet and could have observed Riley’s
greenhouse.
 There would be a different result if flying at that altitude had been contrary to
law or regulation.
o California v. GREENWOOD No reasonable expectation of privacy in garbage placed
by the curb
 Reasoning:
• What a person knowingly exposes to the public, even in his own home or office, is not a
subject of 4th amendment protection. (KATZ)
• It is common knowledge that plastic garbage bags left on or at the side of a public street
are readily accessible to animals, children, scavengers, snoops, and other members of
the public. Moreover, respondents placed their refuse at the curb for the express
purpose of conveying it to a third party, the trash collector, who might himself have
sorted through respondent’s trash or permitted others, such as the police to do so.
Accordingly, having deposited their garbage ‘in an area particularly suited for public
inspection and, in a manner of speaking, public consumption, for the express purpose of
having strangers take it,’ respondents could have had no reasonable expectation of
privacy in the inculpatory items that they have discarded. The police cannot reasonably
be expected to avert their eyes from evidence of criminal activity that could have been
observed by any member of the public.
• A person has no legitimate expectation of privacy in information he voluntarily turns over
to third parties.
 Smith v. Maryland (1979)
• The police did not violate the 4th amendment by causing a pen register to be installed at
the telephone company’s offices to record the telephone numbers dialed by a criminal
suspect.
• An individual has no legitimate expectation of privacy in the numbers dialed on his
telephone, we reasoned, b/c he voluntarily conveys those numbers to the telephone
company when he uses the telephone.
• A person has no legitimate expectation of privacy in information he voluntarily turns over
to third parties.
 California v. Ciraolo (1986)
• The police were not required by the 4th amendment to obtain a warrant before
conducting surveillance of the respondent’s fenced backyard from a private plane flying
at an altitude of 1,000 feet. We concluded that the respondent’s expectation that his
yard was protected from such surveillance was unreasonable b/c any member of the
public flying in this airspace who glanced down could have seen everything that these
officers observed.
  Should GREENWOOD apply even when the defendant has resorted to
rather extraordinary means to ensure that the incriminating character
of his garbage is not perceived by others?
 U.S. v. SCOTT (1st Circuit – 1992)  the answer is YES.
• IRS agents reassembled documents which D shredded into 5/32-inch strips before
putting them in the garbage later placed outside his curtilage.
• ANALOGY BY COURT: A person who prepares incriminating documents in a secret code
(or for that matter in some obscure foreign language), and thereafter blithely discards
them as trash, relying on the premise or hope that they will not be deciphered (or
translated) by the authorities could well be in for an unpleasant surprise if his code is
“broken” by the police (or a translator is found for the abstruse language), but he cannot
make a valid claim that his subjective expectation in keeping the contents private by use
of the secret cod (or language) was reasonable in a constitutional sense.
o BOND v. United States (2000) {EFFECTS}  THE WRONGFUL SQUEEZE CASE!
 Facts: During a lawful stop of a Greyhound bus, federal agents walked through
the bus and squeezed the soft luggage passengers had placed in the overhead
storage spaces.
 Reasoning:
• He does not expect that other passengers or bus employees will, as a
matter of course, feel the bag in an exploratory manner.
• The court noted:
o 1) A traveler’s personal luggage is clearly an effect protected by the 4th
amendment
o 2) The government’s reliance on such cases as Riley was misplaced b/c “physical
invasive inspection is simply more intrusive than purely visual inspection”
o 3) While Bond’s bag was not part of his person, travelers are particularly
concerned about their carry-on luggage; they generally use it to transport
personal items that, for whatever reason, they prefer to keep close at hand.
• SEARCHES – THE USE OF TECHNOLOGY
o United States v. KNOTTS (1983) (Rehnquist, J.)  Use of an electronic Beeper
Tracking Device – “Augmenting sensory faculties” with “science and
technology”
 The court said that it is not a search under the 4th amendment b/c it is just
showing where something is going, it is not showing what is actually going on.
 They are just tracking the guy with a device, which they are just using
technology to give them a boost – which is what they could theoretically do (if
they have the man power) by setting up officers on all street corners.
o United States v. Karo (1984)

o DOW CHEMICAL COMPANY v. U.S. (1986) (Burger, CJ)

o KYLLO v. United States (2001) (Scalia, J.)

• SEARCHES – PROTECTED AREAS AND INTERESTS
o United States v. PLACE (1983)
o Illinois v. CABALLES (2005) (Stevens, J.)

SEARCH WARRANTS AND EXCEPTIONS

• Assuming that Police conduct amounts to search, what restrictions does the 4th amendment
impose?
 o In order for search to be constitutional, 4th amendment requires search be supported
by probable cause and that search be made pursuant to warrant or some exception to
warrant requirements
• ISSUANCE OF SEARCH WARRANTS:
o Issuance of search warrants must be by “neutral and detached” magistrates
o Search warrants must particularly describe the place to be searched and person or
things to be seized
• Components of a Warrant
o Affidavit
o Warrant
o Return of the warrant - inventory
• Requirements of a Warrant:
o 1) Probable cause
o 2) Neutral and detached magistrate
 Must have no general interest
o 3) Describe the places to be search and the things to be seized
o 4) Knock and Announce
 At common law officers were required to knock and announce with a warrant as
part of the reasonableness requirement of the 4th
 A “No-knock warrant” may occasionally be given if there are exigent
circumstances that the trial judge is permitted to issue one
 Richard Case – Wisconsin legislature made all drug warrants no-knock
warrants. Supreme Court said that you can not make them all automotive no-
knock warrants, needed to have the extreme exigent circumstances
• With Warrants  look at:
o Trigger
o Scope
o Time limit
o Rationale
• EXCEPTIONS TO WARRANT REQUIREMENT:
o 5 Exceptions:
 Exigent circumstances
 Search incident to arrest
 Vehicle/automobile
 Consent
 Plain view
o Questions to keep in mind:
 What is trigger for exception, i.e., What circumstances bring it into play?
 What is physical scope of exception, i.e., Where can they look and what can
they look for?
 How long does exception last, i.e., Any time limits?
 What is Rationale behind exception?
• WARRANT EXCEPTIONS:
• WARRANT EXCEPTIONS – VEHICLE EXCEPTION
• WARRANT EXCEPTIONS – CONSENT SEARCHES:
• CONSENT SEARCHES BASED UPON THIRD PARTY CONSENT:
• PLAIN VIEW EXCEPTION:
 o If officer lawfully present, he may observe certain items not within the
“immediate control” of the arrestee or not within the scope of the lawful
reason for being present which will nonetheless be subject to warrantless
seizure
• PRESENT PLAIN VIEW REQUIREMENTS:
o Officer lawfully present
o Officer has lawful right of physical access
o Incriminating Character of Item immediately apparent (probable cause
exists to seize it)
• WARRANT EXCEPTIONS – PLAIN VIEW DOCTRINE:
o Arizona v. HICKS (1987) (Scalia, J.)

INVENTORY SEARCHES, SPECIAL NEEDS SEARCHES & OTHER

ADMINISTRATIVE INSPECTIONS

INVENTORY SEARCH:

SAFETY INSPECTIONS

BORDER SEARCHES
SPECIAL NEEDS
• PUBLIC SCHOOLS & DRUG TESTING
• PUBLIC SCHOOLS & STUDENT SEARCHES
• DRUG TESTING
• VEHICLE CHECKPOINTS
• SUPERVISION OF PROBATIONERS
• SPECIAL NEEDS OR CRIMINAL SEARCH
• ADMINISTRATIVE INSPECTIONS
• SPECIAL NEEDS vs. ORDINARY LAW ENFORCEMENT

- POLICE PRACTICES -
ARREST, SEARCH AND SEIZURE
SECTION 1: EXCLUSIONARY RULE

Questions
• Assuming violation of 4th amendment, what remedy if any do we impose?
• Are there any limitations on or exceptions to when this remedy will be imposed?

EXCLUSIONARY RULE
• Wolf v. Colorado (1949)
 • Mapp v. Ohio (1961)

LIMITATIONS ON & EXCEPTIONS TO EXCLUSIONARY RULE

• EVIDENCE OBTAINED BY GOVERNMENT AGENTS, USED AS BASIS FOR QUESTIONS
TO GRAND JURY WITNESS
o United States v. Calandra (1974)
• EVIDENCE OBTAINED BY GOVERNMENT AGENTS, USED IN CRIMINAL CASE AFTER
CONVICTION
o United States v. Janis (1976)
o INS v. Lopez-Mendoza (1984)
o Pennsylvania Board of Probation and Parole v. Scott (1998)
• EVIDENCE OBTAINED BY GOVERNMENT AGENTS, USED IN “QUASI-CRIMINAL” OR
CIVIL CASE.
o ONE 1958 PLYMOUTH SEDAN v. PENNSYLVANIA (1965)
• APPEALS – POST CONVICTION REVIEW
o Stone v. Powell (1976)

MORE Limitations on Exclusionary Rule – STANDING & PRIVATE SEARCHES

• STANDING
o Who can challenge an illegal search?
o GENERAL RULE:
 Only person whose personal 4th amendment rights were intruded upon
by the police.
• THE STANDING REQUIREMENT
o Alderman v. U.S. (1969)
 Suppression of the product of a 4th amendment violation can be successfully
urged only by those whose rights were violated by the search itself, not by
those who are aggrived solely by the introduction of damage evidence.
o WHAT LANGUAGE FROM THE 4TH AMENDMENT SUPPORTS THIS APPROACH?
o Rakas v. Illinois (1978)
 Passenger exception of privacy in a car
- Standing requirement should be treated merely as a reiteration of the
basic point that a person may not successfully challenge a search unless
his own rights were violated.
o Minnesota v. Carter (1998)
 One “who is merely present with the consent of the householder may not” claim
the protections of the 4th amendment
o United States v. Salvucci (1980)
 Abandoning the “automatic standing” rule:
- Nothing inherently self-contradictory about a prosecutor charging a
defendant with possession of illegal contraband and also asserting that
the same defendant was not subject to an unconstitutional search (that
he lacked “standing”)
o United States v. Payner (1980)
 Supervisory power can’t be used to prohibit evidence form third party search
when defendant lacked standing to contest search.
o Rawlings v. Kentucky (1980)
 A person may not successfully challenge a search merely on the basis that he
has a possessory interest in the property seized during the search.
• EVIDENCE OBTAINED BY PRIVATE PERSONS, USED IN CRIMINAL PROCEEDINGS
 o STATE ACTOR REQUIREMENT
 Burdeau v. McDowell (1921)

EXCEPTIONS TO EXCLUSIONARY RULE

• Have seen that the Supreme Court has imposed limitations on kinds of cases in which
Exclusionary Rule can be invoked and on who can invoke it.
• General Rule  At least in state and federal criminal trials, illegally obtained evidence can’t
be admitted against Defendant whose personal 4th amendment rights were violated.
• EXCEPTIONS TO EXCLUSIONARY RULE ITSELF?
o THREE EXCEPTIONS
 1) GOOD FAITH
 2) INEVITABLE DISCOVERY EXCEPTION
 3) IMPEACHMENT EXCEPTION
• GOOD FAITH EXCEPTION
o United States v. Leon (1984)
o LEON GOOD FAITH EXCEPTION:
 “Evidence obtained pursuant to a search warrant later declared to be invalid
may be introduced at a defendant’s criminal trial in prosecutor’s case-in-chief if
a reasonably well-trained officer would have believed that the warrant was
valid.” (DRESSLER)
o Massachusetts v. Sheppard (1984)  Warrant not invalid due to technical error
committed by the issuing magistrate.
o Groh v. Ramirez (2004)
o Illinois v. Krull (1987)
 After LEON, exclusionary rule does not require suppression of evidence
obtained pursuant to objectively reasonable reliance on a statute later held to
violate 4th amendment.
o EVIDENCE OBTAINED BY VIRTUE OF CONDUCT OF NONPOLICE GERNMENT
EMPLOYEE, USED IN CRIMINAL PROCEEDINGS
 Arizona v. Evans (1995)
- LEON good faith exception applies to non-warrant search
o Maryland v. Garrison (1987)
 Search warrant not defective for accidentally describing multiple unit structure
as on-unit structure as the validity of the warrant “must be assessed on the
basis of the information that the officer disclosed, or had a duty to discover and
disclose, to the issuing Magistrate.”
• INEVITABLE DISCOVERY EXCEPTION
o Nix v. Williams (1984)
• IMPEACHMENT EXCEPTION
o Walder v. United States (1954)
 Use of illegally obtained evidence for Impeachment Purposes: “Defendant
‘opened the door,’ for purposes of attacking the defendant’s credibility, to
evidence of heroin seized from the defendant’s home, in his presence, in an
earlier unrelated case.”
o United States v. Havens (1980)
 Denial by defendant on cross-examination that she previously possessed
particular evidence of a crime allowed prosecutor, in order to impeach her
credibility, to introduce illegally obtained evidence that contradicted her cross-
examination claim
o James v. Illinois (1990)
  Prosecutor may not use statement obtained from defendant in violation of 4th
amendment to impeach a defense witness who provides testimony in conflict
with defendant’s statement

FRUIT OF THE POISONOUS TREE & RELATED MATTERS

• QUESTION  Assuming Illegal search or seizure, and no limitation or exception applies, how
far does the taint of the illegality extend, i.e., how far down the chain of evidence
discovered, will exclusionary rule be applied?
o ANSWER  Only as far as necessary to maintain sufficient deterrent against 4th
amendment violations
• FRUIT OF THE POISONOUS TREE DOCTRINE
o Silverthorne Lumber Co. v. United States (1920)  genesis of the “taint” or “fruit of
the poisonous tree” doctrine
• FRUIT OF THE POISONOUS TREE – ATTENUATION DOCTRINE
o Nardone v. United States (1939)  “fruit of the poisonous tree” and the
“attenuation” doctrine
• Wong Sun v. United States (1963)  verbal evidence as the fruit of illegal search and
seizure
• What is the Appropriate Test according to the Wong Sun Court?
o More apt question in such a case is “whether, granting establishment of the primary
illegality (the evidence) has been come at by exploitation of that illegality or instead
by means sufficiently distinguishable to be purged of the primary taint.”
• Segura v. United States (1984)  Warrant search as the fruit of an illegal entry and
occupation of the premises
• FRUIT OF THE POISONOUSE TREE – INDEPDENT SOURCE DOCTRINE
o Murray v. United States (1988)
 Independent source doctrine may apply if evidence is initially discovered
unlawfully but is subsequently obtained in a manner independent of the original
discovery
• Brown v. Illinois (1975)  confession as the fruit of an illegal arrest
• Dunaway v. NY (1979)
o Reaffirming Brown v. Illinois: Miranda Warnings alone are insufficient to attenuate the
taint of an unconstitutional arrest
• Taylor v. Alabama (1982)  Application of Brown-Dunaway RULE
• New York v. Harris (1990)
o Confession as the fruit of a Payton Violation:
 Where police have probable cause to arrest a suspect, exclusionary rule does
not bar the state’s use of a statement made by defendant outside of his home
even though statement is taken after defendant arrested in home in violation of
Payton
o
• United States v. Crews (1980) – Identification of a person as a “fruit” of an illegal arrest
• United States v. Ceccolini (1978)  Witness as a fruit
• SUMMARY:
o Supreme Court continuing to narrow the exclusionary rule and the fruit of the
poisonous tree doctrine while broadening rights of prosecutors to use evidence
discovered arguably as the result of constitutional violations.