Criminal Procedure Class Notes

Crim Pro Class Notes
January 20/21
• How the constitution regulates what the criminal justice system could do, object of the course
• Need to balance justice systems protection of property, privacy, liberty, and safety, so that
private power to do this is limited, but the government’s power to do the same is also
limited
• 4th amendment: right to be free of unreasonable searches and seizures (protect privacy,
protection, and liberty). basically this limits the search for evidence by requiring some
evidence to justify a search
• 5th amendment: right against compelled self incrimination
• These amendments exist to protect the innocent.
• Exclusionary Rule, any evidence collected improperly can’t come into trial. This means
that, even though the 4th is for protecting the innocent, most cases are not brought by the
innocent.
• Also, exist to protect the guilty as well by restraining/civilizing the government(that is you can’t
just shoot a jaywalker)
• What is more worrying then? Private or government violence?
• First Reading
• About two things
• Competing perspectives on what does and out to frighten us most (police or individual
criminals)
• Covers main issues we will talk about (4th amendment and suppression)
• Flight Evidence
• Evidence of fleeing, police approach and someone runs then deduce that as guilt
• SCOTUS has said that flight from the police is a relevant piece of evidence about
wrongdoing (not conclusive, but relevant)
• Racial Profiling
• Equal protection not 4th amendment issue, says SCOTUS (note how difficult equal
protection is to use though vs just using the 4th amendment). just needs to be probable
cause or reasonable suspicion to not be a 4th amendment issue.
• What happens in this case:
• High crime neighborhood, women double parked with out of state plates, 4 men
approach and load it with bags, then flight from police, police come over ask to search
trunk, she consents, then she brings suppression case claiming she should not have
been pulled over (and if that had not happened she wouldn’t of been searched etc.)
• Judge agreed with suppression motion and said police were so horrible there was
nothing wrong with running (further claimed police were so corrupt that it’d be odd not to
run)
• So, was the stop ok? Was there reasonable suspicion
• Later debate about whether judge could be fired/impeached for a suppression motion
(seems ridiculous cause of the number of suppression motions)
• Notice the stop not the search of the car was the issue, she consented to search the car
(so they didn’t need a warrant etc.).
• You can always say no…just be polite.
• Reasonable Suspicion
• more commonly we will talk about probable cause, reasonable suspicion is less than
probably cause (you can’t arrest with reasonable suspicion, but you can stop someone
Perry v. Ohio, reasonable suspicion just means you have a reason to suspect something
is going on.)
• What is the case for reasonable suspicion? (see the facts basically…double parked
car, out of state plates, putting bags in car without talking, 5 am, men ran, street with
high drug traffic, cops were experienced)(counter argument: just say she was visiting
and wanted to leave in the morning, then argue race/neighborhood profiling, argue
police experience makes police over confident in seeing crime, finding drugs makes
us more suspicious after the fact, she never fled just the guys who loaded the drugs,
the officers were plain clothes officers)(note that you can put anything on one list and
have it seem incriminating and vise versa)
• Second Set of Readings
• Search and Seizure (why does it matter whether policy activity is a search or a seizure?
you know whether to apply a standard, if it wasn’t a search or seizure the 4th amendment
would not apply, for instance when you leave out your garbage it can sifted through without
being a search or seizure)
• What do police need for a search? (a warrant [not always, but often], probable cause)
• Katz v. US
• Does wiretapping a public phone trigger the 4th amendment?
• Lower court says there wasn’t a search because there was no “physical entry” into a
“constitutionally protected area.”
• Is a public telephone booth a constitutionally protected area?
• Do you need to physically enter this are to trigger the 4th amendment?
• SCOTUS ignores these questions, says “constitutionally protected areas” are a
“talisman” and says that a better question “what do people legitimately seek to
preserve as private?” (that is people not places are protected)
• doesn’t matter you can see into the phone booth, the audio is protected by the
structure
January 22
• Katz v. US
• Two primary question
• Is the public phone booth a constitutionally protected area?
• Is physical entrance into this area necessary to infringe on 4th amendment interests?
• SCOTUS dismisses these as talismans and focus on people not places. So physical
entry into an area is no longer necessary (makes sense, you can intrude into peoples’
lives without physically entering their lives)
• The court focuses on what activities the individual legitimately seeks to make private.
• If we are looking at the activities people are engaged in, then why isn’t the court looking
at the activity of Katz, placing interstate bets?
• Do we want to protect interstate bets? No, but they couldn’t tell it was interstate bets
until they had heard the conversation, so the conversation is what we look at. (ex ante
perspective is something we should watch out for)
• Since police don’t know in advance whether someone is concealing a crime, we
should ask if we are intruding on innocent people in an objectionable way. Once you
have a warrant the downside is shifted to guilty parties (more likely to have a warrant
when someone is guilty and so more likely that the person whose privacy is being
intruded on is innocent).
• This implies there is a value to privacy beyond covering up crime. Otherwise it
wouldn’t matter if we invaded innocent peoples’ privacy.
• The 4th amendment does not ever say you need a warrant, it just says what you need to
do if you want one. The court has obviously decided you sometimes need a warrant and
need probable cause even more often.
• Here the court says a warrant is required because the police had really been pretty
careful about where and when they used the recording device. That means they were
doing what a warrant would have instructed them to do.
• Harlan (concurring opinion)
• He answers the original two questions, argues you have to talk about places and not just
people because of there will always be context.
• Importantly, he points out there is no trespass and still a 4th amendment problem.
• His two part test becomes the actual test, even though he was only concurring:
• person have exhibited/manifested an expectation of privacy (e.g. speaking quietly,
putting up a fence, etc. this really never comes up)
• the expectation has to be one society will recognize as reasonable (this
reasonableness has become the critical part of the test
• Black (dissenting)
• What does he think is wrong?
• Makes a textual reading and claims the amendment only considers tangible things, a
conversation is not a tangible item and so cannot be searched and seized. Further,
when writing the amendment, the framers knew about eavesdropping, and wire-
tapping is just an advanced form of eavesdropping, but they did not mention
eavesdropping.
• Warrant law says the particular thing being searched and seized has to be stated, but
you cannot particularly state a future conversation.
• What counterarguments can be made?
• Eavesdropping and wire-trapping really are different things, just compare the logistics.
Perhaps eavesdropping was covered by protecting private property, that is you’d have
to be on someone’s property, under their window, to hear them speak. This seems
analogous to updating concerns about letters to concerns about email/texts.
• You don’t know exactly what you are going to find with a warrant anyway. You aren’t
sure exactly how much drugs you’ll find with a warrant, just like with a conversation.
• The tangibility of the letter is irrelevant. We aren’t interested in the paper itself, but the
words on the page (unless it’s like that movie with the expensive stamps).
• What does a warrant give you? Why should we want them?
• Part of what lead to the 4th amendment was general warrants, which were really wide
sweeping and abused, so the 4th amendment wanted them to be specific and meet certain
conditions.
• SCOTUS was very pro warrant, but why, especially with the above in mind (that they had
originally been feared by the framers)?
• Warrants give police action legitimacy (they had to have met certain standards to get the
warrant and had to meet these standards before a neutral magistrate). It sets the limit of
the search, the warrant clause requires not only probable cause, but the warrant has to
very particularly state what will be searched. Requires the articulation and forethought
of going before a magistrate.
• What about disadvantage for a warrant? It is time consuming. The magistrates
probably are deferring anyway. If you have these standards, and the officer already
knows what he is looking for, he just may lie to meet the standards of a warrant. Might
also prevent less crime if you need to meet a warrant standard. 
January 26
• Katz
• need to invade somewhere where there is a reasonable expectation of privacy (subjectively
manifested and reasonable)
• the content does not factor into expectation of privacy, we couldn’t know whether was
discussion private till after the fact, also can’t control what someone on the other end of the
line says (take an ex ante perspective)
• notice this primarily protects the innocent, i.e. would someone be upset by this if they
were innocent
• Note that Harlan while only consenting gives the test (two part test: person have exhibited
an actual expectation of privacy [this must be subjectively manifested] and that the
expectation be that society is prepared to recognize as reasonable)
• Rewolinski
• Case where transcript from deaf phone used
• How do you suppress this?
• Using Katz? if you are holding it in your hand you are subjectively manifesting a right to
privacy, and this seems reasonable (there is only one phone for the deaf and taking the
transcript seems to be the only way to protect the message)
• Response: Other ways to make contact, how much can you expect to protect a
physical copy of the call
• What do we mean when we say something is reasonable?
• Is it a realistic expectation? (ie can you expect to protect a physical copy of the call?)
• Another way to look at this is, if police weren’t there would we expect it to be private?
The state of nature approach. This ties into police not averting their eyes as they
drive pass houses.
• Should someone be able to expect privacy in this situation? (there is a normative
interpretation of reasonableness, we don’t ask about the quality of door on a house
when determining privacy, kind of rely on ideas of justice)
• in this case they could easily just not take the piece of paper
• Does it matter in this case that the phone transcript was seized before the crime?
• Doesn’t matter, even though it shows the complications of the law. Again protecting the
innocent.
• Mooney
• Said a box that held a man’s goods was not abandoned or a house, but a closed container
that belong to him and so a warrant was necessary(container was the defendant’s “last
shred of privacy”).
• Apply the test
• Is it realistic for someone with all their stuff in a box under the bridge to expect it to stay
private? Probably not
• However, there does appear to be a normative or justice oriented reason to protect the
box, in fact, this is what the court did.
• What if police in this case hadn’t know the box belonged to Mooney or anyone else?
• How do we use the subjective test? Is it always from the defendant’s perspective.
• it puts the police on notice there is something potentially private
• this would be even more problematic if the police didn’t think it was Mooney’s then
they are just intruding on privacy for no particular reason, they would have no
probable cause
• who’s perspective we use is mitigated by our reasonableness test
• Is reasonableness a jury question?
• This comes up in the case of wanting to suppress evidence so it is a judge question.

• Hoppa
• Not assigned
• A police informant pretended to be friends with a suspect and receives information from
him. SCOTUS says this is not a search or seizure.
• Sending a state actor to ask questions and pretend to be friends is not a search or seizure
because you assume the risk someone is not trustworthy when you disclose information to
someone.
• This is kind of reliant on a bleak view of people’s trustworthiness.
• Lopez
• Informant wore some kind of recording device. Again court ruled you can’t trust your
friends. But can’t you trust them not to wear recording devices?
• this ties into questions about reasonableness and realism (would you realistically expect
someone to wear a wire? seems unlikely, even if you reasonably don’t expect them to be
trustworthy)
• White
• Does 4th amendment apply to an informant who wears a wire that simultaneously
transmits?
• Why is this different than say Lopez?
• Seems kind of like a telephone booth? Even if you can’t trust the person you are
speaking to can’t you not trust them to broadcast? Takes power to share out of hands
of informant.
• Consent is the key here. If a party consents this is not the same as the telephone booth. 
January 27
• Wire Cases
• Reasonable expectation of privacy of discussions (remember two part test, realistic &
normative)
• not realistic to expect one to keep a secret (this eventually extends to wearing wires)
• normative standard?
• what about Katz objecting to wiring a public phone booth?
• the court in White relies on consent, if one party consents then privacy not being
violated.
• (this is an interesting idea of who “owns” a conversation, both parties involved in
conversation, but either can reveal the conversation)
• Court ultimately saying the 4th amendment does not govern wiring, therefore the innocent
and guilty are subject to it equally.
• Katz court (Harlan), wanted to redistribute privacy to the innocent, White decision seems
to go against that (nobody is free of this kind of surveillance and so it will largely be
inflicted on the innocent, especially because it doesn’t require a warrant and so is more
likely to be used on innocent)
• Why is White afraid to lose this technique (using a wire and a recording device) as
opposed to what was already in Hoffa?
• This is far more accurate, it actually is a transcript, rather than relaying the information.
Besides, you’d probably have to rely on someone with a criminal record to pass on the
conversation under Hoffa (might not tell the truth, might back out, etc.)
• Ultimate claims is that going from Hoffa (relaying conversation) to White (wire) is just a
matter of change in efficiency. Is this true? Does this matter?
• Claim we expect inefficiency from police and this violates that. (case where guy got
ticket based on how long it took from him to get from one toll both to another, guy
claimed you don’t know I’m speeding unless you see it, and if you accuse me of
speeding otherwise (this is dumb because that is how speed is measured all the time,
just a matter of scale) you are violating my privacy). What do we think of this?
• Doesn’t this seem dumb. Would the system not work if we thought that generally
speaking we could get away with stuff?
• Is this where the inefficiency is though? It seems like it is with transcription. Is there
social value in not being held accountable to all your words? Kant would argue
otherwise, this finally makes us tell the truth.
• How about the idea that the problem is not the recording, but that people learn of it?
Won’t we have to find out eventually?
• I guess if we close trials and go full out Orwellian we might not know, but
realistically we will know. Wait though, what about the NSA, if you can get over
regular habeas corpus we might not ever know.
• Where do expectations of privacy come from?
• The law…so we could create a society with no privacy, do we want this?
• Colb Article
• Significant who people think they can trust. Katz there was no misplacement of trust, but
there was in White.
• Should the ability of people to tell whether they should trust someone determine the
privacy they are entitled too?
• First, this seems unfair to those who can’t make these distinctions (analogous to
loosening privacy for those who have bad locks on their doors)
• Second, this encourages bad friendships, rather than recognizing them as a

necessary evil.
• This article criticizes two moves by SCOTUS, (1) whenever someone takes a risk that
means that person has given up privacy (“knowing exposure,” i.e. what you knowingly
expose to the world is not private to the police), (2) if you expose your secret to
somebody it is now no long yours (Hotel case, where if you share information with hotel
they can pass it on)
• Are things really this bad? Following her logic it’d seem nothing was protected by the
4th amendment anymore.
• Dog Sniffs
• SCOTUS has said that if a dog lets an officer know there are drugs in your luggage that is
not a search because there is no reasonable expectation or privacy.
• This turns on the specificity of the dogs sniff, this is not a device that detects narcotics, the
dog is only trained to alert you, the dog doesn’t tell you what else is in the bag. This means
there is no collateral privacy damage, as there would be if an officer rummages through
your bag looking for drugs.
• Caballes, is where we get the narrow holding for contraband. Holding focused on fact this
search only reveals contraband and not illegal things.
January 28
• Dog Sniffs
• A dog sniffing for narcotics/contraband is not a search as a general matter because there is
no reasonable expectation of privacy when you have these things in your car. The key
here is that the dog only smells the “bad” things and there is no more information.
• As a matter of reality, you might expect privacy, but you cede it with
• As a normative matter, no innocent person would object
• (Dissent)
• Dogs occasionally make mistakes (or at least don’t go just after drugs/contraband), a lot
of alerts yield no evidence, might be as high as 60% error rate (which by the way doesn’t
eliminate probable cause). This means that a dog sniff is a search.
• Interesting, that the mistakes by the dog are a different kind of mistake.
• Seems his main concern is whether the dog sniff is enough to justify a subsequent
search.
• Open Field Doctrine
• argument that people don’t need privacy in an open field, everyone ignores no trespass
signs, you could have flown over the property, and lastly trespass is about land and not
privacy
• there are clear holes in these arguments, but hey it is what it is.
• so going on open fields is not a search
• Aerial Surveillance
• Fly over curtilage at 1000 feet, if police had walked here it would have been a search.
Claim that anyone could fly over so anyone could have seen this. 
February 2
• Ciraolo
• Reasonable expectations of privacy what is a search etc?
• Police can fly over the curtilage (different from the open field, remember Oliver leaves that
open), even though they can’t walk through it w/out warrant
• this is allowed because the general public can fly over the curtilage as well. this is the
basic state of nature approach to privacy, if the populace can do something no reason to
stop the police from doing so. police don’t have to cover their eyes and ears while
walking around. (“what a person knowingly exposes to the public is not subject to 4th
amendment protection”)
• this is problematic because of anonymity. part of what gives you privacy, even though
people are flying over head, people can’t really make sense of what they’re seeing
(i.e. who you are and what you are doing)
• (dissent, Powell)
• Powell was with the majority in Oliver (the open field case)
• Claims that court is relying on the idea of a physical trespass, which supposedly we
moved on from with Katz.
• Also sees the plane as technology that gives information that otherwise would only
have been possible through physical intrusion (remember if curtilage is closed you
can’t go on it unless you have a warrant). Again, this is like the wire tap in Katz.
• Points out that you’d have to cover the top of their curtilage to expect privacy now, but
this defeats the purpose of curtilage (seeing the sky in your yard etc.).
• Also says the court has created a risk where one did not exist before.
• Riley
• helicopter at 400 feet over the curtilage, what is really special here is that helicopters can
hover, which gives you more time to observe
• Court still allows this
• same line of though, observing what anyone could observe (how many people really
have helicopters?, see O’Connor)
• strange that FAA regulations are invoked, these really have nothing to do with privacy,
but are used to show that helicopters can fly at this height
• points out no physical invasion (no dust on the property) and no intimate activity
observed
• these seem like dumb arguments, the first is something we moved on from with Katz,
and the second is ex post facto argument)
• Kyllo
• This is the thermal detection device case. Police scan side of house, see a large amount
of heat, and determine marijuana is being grown there and get a warrant.
• By analogy to the dog sniff cases it is clear there is going to be an invasion, when they
eventually go into the house, so is this initial step a search?
• Court says this a search:
• This is the home, one of the areas specifically protected by the 4th amendment, more
specifically the first among equals of those areas protected by the amendment
• the dissent argues that the device is not penetrating the device, but only picking up
the heat on the outside of the house, they refer to this as “off the wall surveillance.”
seems like a promising argument, seems like the garbage argument.
• part of the reason the court doesn’t go for this is because technology is being used.
• “we think that obtaining by sense-enhancing technology any information
regarding the interior the home that could not otherwise have been obtained
without physical intrusion into a constitutionally protected area constitutes a

search” at least where the technology is not in general public use (such as
thermal scanner)
• what is public use?
• (Dissent)
• made the off the wall argument, which is countered by Katz
• you aren’t learning anything, just getting heat patterns, this isn’t an infrared photo
• claim by the majority that all home facts are private facts
• also significantly claiming this way to survey is not as accurate as dogs (sees innocent
things as well)
• claims you could get this information from a lawful way (e.g. snow melt)
• court claims that just because there is legal way to get the information doesn’t mean
obtaining it in any way is legal
• interestingly this is the opposite of how the court approach open fields in Oliver
• Beeper/GPS Cases
• Gov placing beepers in barrels of drug ingredients to better follow suspects.
• person consents to the tracking device being put in a barrel and then that person gives
the barrel to the suspect
• transferring the beeper this way means you don’t have to worry about consent
• Knotts
• says this is not a search
• more of a state of nature argument, you could follow someone on the public streets.
no reasonable expectation of privacy about your whereabouts on public streets
• Karo
• says it becomes a search when the barrel w/the device is taken into the home
• this follows from the Knotts argument, not private on public roads, private in house
• Jones
• GPS attached to a vehicle here, not a beeper, and the vehicle was tracked for 28 days
• police had warrant which had expired, allowing the warrant to be clearly presented
• was placed on his wife’s car, but court just assumes the car is his (this could be less
clear ins states where property is handled differently among married couples)
• Court says this is a search
• Scalia says that the defendant’s personnel effects are being trespassed on (car is a
constitutionally protected area) and information was gained from that trespass (just
putting gum on the car, and not collecting information, wouldn’t of been a search)
• Concurrence (Alito)
• says the majority is focusing on the wrong thing. the problem isn’t the trespass of the
GPS, but the information gained from the GPS, this means it is odd to focus on the
trespass when we have Katz.
• Scalia claims this is not the case, you should start with the easy part of the case,
the trespass, no reason to even go to Katz
• also points out it is odd to focus on how framers would view this case, clearly this
technology wasn’t around yet (see the silly constable in the coach discussion)
• does length of time you’re followed matter?
• well with a short time the police could do it, so maybe not for a short period of time?
(Knotts), buy Kyllo would seem to go against this and say any amount of time
triggers it being a search
• Concurrence (Sotomayor)
• People can resist search and seizures by knowing when they are being followed
around and therefore be able to put their foot down at some point. This isn’t the case
with the GPS.
• There is also traditionally a cost limit on gathering this much information. The GPS is
so cheap and easy to use that getting this information has become insignificant and
therefore might become more common.
• Also wants to call into question the assumption the third party sharing of information.
Points out how much more we are required to share information with 3rd parties.
• Colb Column
• has the video camera hypothetical, which shows how little it matters when the
surveillance is installed. (you’d be upset if cameras were in your apartment whether
they were put before you moved there or not)
• talks about Kyllo which shows Scalia’s inconsistency about physical intrusion
• Jardines
• This is the case where the officer walks to the door with his dog, dog alerts, and then a
warrant is obtained.
• Court says this is a search
• Notice this is the part of the curtilage where people can enter (salesman, neighbors,
etc.) there is an implied license. This means the police officer was not actually
trespassing.
• Court focuses on motive (to get information from the house) when saying this is a
search
• Colb doesn’t like this. Why distinguish officers? Motive hadn’t mattered before.
• Concurrence
• Focus on dog being highly trained and says that makes the case like Kyllo.
• Colb disagrees. In Kyllo they were across the street, but that is not the case here.
(see her example with police walking through a neighborhood with a dog, have the
police searched all those houses?)
• So this case rests on investigating the home, but does not rest on a solid argument.
February 3rd (from James)
Seizures
Hodari D case
(Hodari D is a juvenile, so his last name is not provided)
Police pull up to a group of youths, and they run away. The officers give chase. Hodari,
while being pursued, discards a crack rock.
Question: when police recovered the drugs, was this pursuant to a “seizure” under the
4th Amendment?
(i.e., did the chase constitute a seizure, which would put the crack rock evidence
within the 4th Amendment protection against unreasonable search and seizures?
California has already stipulated that this was ‘unreasonable,’ but they are interested
in knowing if this police chase constituted a seizure).
If there were a seizure – if chasing constitutes a seizure - then the drugs were
the ‘fruit of the seizure.’
California concedes that the police did not have reasonable suspicion. So even if it were
a seizure, it was an unreasonable seizure. California just wants the Supreme Court to
decide what a seizure is.
[Scalia (in a footnote): I don’t understand the logic of the stipulation. After all,
“[t]he guilty flee when no man pursueth.” (but that’s not the point at issue in the
case)]
Two types of seizures cited by Scalia:
1) When there’s any application of physical force by the police (ie, grabbing a
suspect)
- could ultimately be unsuccessful (suspect could break free), but while the
police ‘has’ the suspect, it’s a seizure
2) A “show of force” if the suspect surrenders in response
- ex: police yell “stop, in the name of the law!” + suspect surrenders =
seizure
Scalia: here, there was a show of force (police approached, then gave chase), but in the
particular moment that Hodari threw away the crack rock, he was not surrendering.
Thus, there was no “seizure” at the time.
- Scalia is using a combination of plain-meaning interpretation, plus
common-law.
Scalia says: with a ‘show of force’, just because the police say ‘stop,’ that does
not immediately become a seizure. The person (the suspect) must stop and surrender.
But since there was no surrender (Hodari was running away), there was no seizure.
This was a pursuit without a seizure.
Colb: you might say this is a narrow approach. There’s an argument
about policy, though, (ancillary to Scalia’s main argument), that supports Scalia’s
argument: we want to encourage compliance with police officers.
- If a police officer simply saying ‘stop’ is a seizure, then the
criminal already gets the 4th Amendment benefits even if he runs away. It (kind of)
rewards non- compliance. A suspect would say: regardless of whether I surrender or
stop, I get the 4th Amendment protections.
Justice Stevens: [first of all, some people flee even when innocent]. Stevens is primarily
concerned with officers ‘fishing’ for information. Police can do these pursuits without
actually intending to catch anyone, but instead just trying to root out suspicious
behavior. I.e., Police officer would try to induce a suspect into fleeing, then using
that to gather information and evidence, because evidence gathered while a
suspect was fleeing (such as a discarded crack rock) is not protected by the 4th
amendment.
Colb: It’s true – it’s not always the case that people who flee are doing so
because they are guilty. Being approached by a police officer – or
chased – is traumatic. Under Scalia’s holding, the police could walk
through a neighborhood and intimate and coerce residents into fleeing.
Scalia also mentions the discussion of when people ‘feel free to leave.’ A passenger in a
private car, for example, would not feel ‘free to leave’ during a traffic stop, even if
it’s the driver who is really the target of the traffic stop. But Scalia dismisses this as
merely a necessary condition for a seizure, not a sufficient condition. Yes, you must
feel ‘not free to leave’ for it to constitute a seizure, but that’s not the only criterion.
Stevens: that’s not right, Scalia. That’s not the case history. If the person feels
unfree to leave, then you do have a seizure. That’s what the precedents
say. Scalia is making up new requirements.
Colb: Really, though, Scalia is looking at the literal, logical construction of
the rule – it says ‘only if’ not ‘when’ – implying a necessary but not
sufficient condition.
Consider: even if you are planning to ‘surrender’ (ex: when you see the police turn on
their lights behind you, while you are driving), you cannot always ‘surrender’
immediately. So it doesn’t make much sense to have the rule turn on the behavior of the
suspect. Stevens: we are governing police behavior, so we should have the rule turn on
how the police are acting – NOT on how the suspects are acting. We shouldn’t let
suspects determine whether or not it’s a seizure.
Brendlin v. California (p. 394, note 2)

Everybody accepts that the driver, in a traffic stop, is ‘seized.’ But what about the
passenger(s)?
Say the driver is the ‘target,’ being pulled over for speeding. If it’s an
unreasonable stop, and there’s evidence found on the other passengers (not the
driver), then they will only be able to suppress the introduction of that evidence if it’s
a seizure. Whose 4 amendment rights are at play?
th
The Brendlin Court: everyone in the car has been seized (although the
case would come out differently if we were talking about ‘searches.’).
The definition of seizure: where the person’s freedom to leave has been
restrained, either through force or a show of authority. So when police
intentionally limit the person’s freedom to leave, then it’s a seizure.
Colb: I would say that the police are not ‘intentionally’ limiting the passengers’
freedom to leave; it’s just a collateral consequence. But the court
says not to construe it so narrowly. The other passengers will not
feel free to just get out of the car and leave.
The Brendlin Court says that taxis or other common carriers might be
different, but passengers in a private care are ‘seized’ during a traffic stop.
Reasonable people will presume that unless the officer
expressly allows them to leave, that they are not free to leave the car during a traffic
stop.
In Brendlin, what ‘incentive’ is the court worried about (if they decided in the opposite
way)?
- It would reward police profiling. Upon seeing a vehicle with multiple people in it,
they could pull over the vehicle and then anything they find in the car would be usable
against anyone in the car. Police would see cars full of people as an opportunity. But if
the entire car has been ‘seized,’ then the passengers are all entitled to 4th
Amendment protections.
Probable Cause
Police must have probable cause to get a warrant (although they don’t always need a
warrant, such as if there are sufficient ‘exigent circumstances’).
In order to have probable cause, the prevailing rule is: there must be facts or
circumstances, within the officers’ knowledge, based on reasonable
trustworthy information, that would lead a person of reasonable caution,
to conclude: (a) for a search - that evidence will be obtained, or (b) for an
arrest - that the person has committed or is committing a crime.
HYPO: you are a magistrate, deciding whether to issue a warrant. The police officer
simply says: I believe there is evidence of a murder in the Dean’s house. Do you
issue the warrant?
No. There are no underlying facts or circumstances. We don’t know if the mere
‘belief’ is trustworthy. The magistrate would not issue a warrant.
HYPO: a different officer, requesting a warrant, says: I would like to search the house of
Cornell’s president, because there are pools of blood and severed heads in the
basement. Do you issue the warrant?
No. We have no idea if this information is trustworthy. What’s the source of the
information? If it’s from another person, was that person trustworthy?
(we have no basis to believe this officer’s assertion).
The magistrate makes the judgment of whether there is a probable cause,
and cannot make the requisite independent assessment if the officer
just states a conclusion or unsubstantiated facts.
HYPO: Officer says, “I know this student is using drugs. I saw this student with my own
eyes standing outside his dorm room smiling. This is not hearsay because I saw
him smile.” Do you issue the warrant?
No. A person of reasonable caution would not assume ‘drug use’ based on a
smile. That’s an unreasonable conclusion.
Note: it’s an objective standard. So an officer’s ‘belief’ is not enough.
For probable cause, we ask three questions:
1) What do you know? (what are the underlying facts and circumstances)
2) How do you know it? (is it based on reasonably trustworthy information)
3) What does it prove? (must be a conclusion reached by person of reasonable

caution)
A major source of info leading to probable cause is the informant. Especially useful with
drug-related crimes. With any type of crime that people generally enjoy doing (ie,
drugs), that are sometimes called ‘victimless,’ you have a relatively low incidence of
people reporting the crime. So police send in an informant. This does not constitute a
‘search.’ But the question becomes: how do you verify that the informant is reliable?
Spinelli case
Court cites Draper (and relies heavily on it).
In Draper, we know very little about the informant. He was paid, and has a good
track record of producing reliable tips. But we don’t know anything about how the
informant gathered his information. Still, the extreme specificity of the facts
described by the informant were enough to indicate reliability. The informant
described the suspect and the circumstances of the future drug delivery in
excruciating detail (exactly what clothes he would be wearing, at what time and where
he would arrive, what he would be carrying, etc.). Draper was apprehended based
on this information. Supreme Court says there was probable cause. The Court says:
the informant knew things that could typically only be gained from firsthand access.
We don’t know generally what clothes people will be wearing, whether they will be
carrying a briefcase, when they will arrive, etc. The informant’s information is so
detailed that it implies he got it directly.
February 4 
February 5
• Draper:
• informant gave information about someone who was dealing drugs, told that this
guy was going to show up at a particular day in a particular outfit and he will have
drugs, this was approved as probable cause
• in this situation there is an indication of credibility of the source, informant is paid as
an informant and has been reliable, but his basis of knowledge is unknown (doesn’t
tell police how he knows the information)
• court says that when your information is detailed enough you are essentially
saying you know the knowledge first hand and are therefore giving the basis of
your knowledge
• Two main criteria
• Is the informant reliable (reason to believe informant)
• Is the information reliable (give some basis of knowledge)
• Spinelli
• in this case the crime is gambling. police observe Spinelli go into an apartment,
and are told that informant that gambling is conducted in that apartment and that
he has a reputation as a book maker.
• uses typical criteria from Drapper/Aguilar
• is the informant reliable
• no way to know, except police say he is reliable, we know from Aguilar this is
not enough
• the information reliable (how was the information acquired)
is
• no way to know how the information was acquired
• wasn’t specific enough to trigger Draper ruling and also wasn’t indicating
criminal behavior (this means you can trigger result by being really specific OR
by giving tip about criminal behavior)
• White (concurring)
• you really need both prongs of the test
• Illinois v. Gates
• this is the case with the couple driving the drugs back and forth and the really
specific informant note
• typical questions
• what do we know about the informant?
• nothing
• what about the basis of the knowledge?
• not satisfied, no idea how information acquired (lower court)
• how could we have gotten around this?
• cite Draper, we have enough detail here that we are all good, and after all this
where the two part test came from so this is really where we should get our
approval
• SCOTUS replaces two part test, how do they do this
• use a totality of circumstances test
• no need to be as rigid as the Aguilar test
• look for a fair probability that you will find evidence of crime where you are
looking; or is there a substantial basis for the magistrate to make his finding
• even with this new test the two prongs are critical
• why does court move on from strict two part test
• if standard is too high there will be more warrantless searches
• warrants often drawn up people w/out legal backgrounds, don’t want to make this
too difficult
• anonymous tips are good
• Dissent (stevens)
• points out the informants information wasn’t entirely correct, and that the flaws in
the information actually made it less powerful 
February 9
• Two part test for informants (Spinelli)
• trustworthiness of informant
• this is essential part of the test because if we eliminate this we require more of
police officers than informants
• how information was obtained
• this is important to validate information
• Probable cause is now a totality of the circumstances (Gates)
• this means we consider the Spinelli factors and that there is a fair probability you
are going to find evidence
• this is really a shift in focus, rather than eliminating the test entirely
• Warrant Requirement
• Does the 4th require warrants?
• There is some link that between searches and seizures and warrants, but it is
unclear how often you need a warrant
• Court explains there is a warrant requirement and if you don’t have one it will be
a per se unreasonable seizure
• doesn’t seem like all the justices agree with this, some are fine with just
pursuing reasonableness (Scalia)
• so what really must be focused on, since its all that’s agreed upon, is a focus on
reasonableness
• What do you need for a warrant?
• probable cause (facts and circumstances definition from before)
• oath and affirmation
• warrant has to state with particularity where the search is going to happen and
what/who is going to be seized
• this is done for privacy concerns and to ensure warrants have adequate
research, protect property
• neutral magistrate
• can’t be paid on a per warrant basis
• judge shopping is allowed
• Execution of a warrant
• First thing is to knock and announce
• Wilson v. Arkansas, set up the basic requirement of doing this, since it
preserves privacy and property while also creating a safer situation with less
cause for self defense
• there are a few exceptions to this rule, such as when the evidence may be
destroyed (more particularly that there is reasonable suspicion that the
suspect will destroy the evidence), escaped prisoner who retreats to his
dwelling (this is really a futility standard), there is the threat of violence
(again reasonable suspicion standard), or most generally that it will frustrate
the goals of the search
• Richards v. Wisconsin
• whether a state can make a blanket knock and announce exception for a
certain kind of crime
• claim was that this war particularly necessary here because in the case of
felony drug cases evidence was particularly likely to be destroyed and
there was a high risk of injury
• court denied this blanket exception
• there is an overgeneralized perception of drug cases, not all of them will
have these same problems
• the same ideas could be applied to many other areas creating an
exception elsewhere as well and eroding the purpose of the rule
• this case instituted the reasonable suspicion stated above, ie reasonable
suspicion evidence will be destroyed, violence is probable, etc.
• this standard isn’t loosened based on how the police chose to enter, so
being able to get in without breaking the door doesn’t allow a lower
standard
• Maryland v. Garrison
• if you get new facts immediately before or during execution of warrant you
have to modify your search
• Ybarra (208)
• people at location where the warrant is being executed are not covered by
the warrant (ie can’t search people for objects of the warrant, unless people
are specified)
• Michigan v. Summers
• you can detain people found while executing a warrant, even if this requires
force, but they need to be in the immediate vicinity
• doesn’t necessarily have to be house and you don’t have to be an owner
• this does not have to be justified on the fact (Bailey) 
February 10
Exceptions to Warrant Requirement
• most searches aren’t warrant searches, but they are consent searches
• how to classify warrantless searches?
• if we have probable cause, but no warrant that is warrant exception search.
• if it is just reasonable this a warrantless search (if you are approached and
searched with no reason, but you consent)
• The main exception is exigent circumstances
• these are cases where there would be a problem with waiting for a warrant.
Officers need probable cause that any of the below will/are happening.
• emergency aid, hot pursuit (or escape more generally), danger if delayed
entrance (e.g. people will be armed if you come back), and imminent destruction
of evidence
• Warden v. Hayden
• find evidence while looking for what they are suppose to and they can seize this
• really this case is just hot pursuit and pretty boring
• Kentucky v. King
• this is the case where the police went into the wrong apartment
• Issue is whether police created their own exigency.
• by knocking on the door and yelling police did the officers create an exigency
allowing a warrantless search
• state court didn’t allow exigencies created by bad faith or that were reasonably
foreseeable based on officer action
• rejected by SCOTUS, court really doesn’t like idea of bad faith because it likes
objective standards, also says that foreseeability is pretty untenable standard
• instead says exigencies are ok as long as they don’t violate the 4th amendment
(can’t break into the house to generate an exigency) and possibly if there is a
threat to violate the 4th amendment (maybe you can’t threaten to break in)
• Dissent says this is crazy, that we shouldn’t be looking for excuses for officers not
getting warrants. Basically, if you have probable cause you better get a warrant.
• court says there are good reasons for not getting a warrant in all cases (police
might be able to rule out suspicion just by knocking on the door and therefore no
need for a warrant, might want more than bare bones probable cause, might
knock on door and ask for consent, if you had a warrant you might tip off people
that you suspect them)
• Cars
• What differs a car from other things: you can partially see inside it, it can be moved,
it is subject to government regulations and inspections.
• Carroll: if you are pulled over and you have probable cause you can search without
a warrant
• Chambers: if you pull someone over, arrest them, and seize the car you can search
it later. 
February 11
• Exigencies that allow warrantless searches can be made by police, as long as those
exigencies don’t violate the 4th amendment or threaten to do so.
• Car searches
• basically cars are different from houses and that matters
• Chambers
• in this case guy is arrested car is taken back to police department and searched
• this could’ve been distinguished cause car is no longer on highway and no
longer mobile
• court says that since cars are mobile officers have two choices: search on the
spot without warrant or seize vehicle and later search it with warrant (still a
warrantless seizure)
• notice that, oddly, the police did both in this scenario
• court claims that seizing a vehicle you are inconveniencing the driver and
depriving him of his property
• well Chambers is in jail…
• Harlan’s dissent
• ridiculous to say probable cause was maintained on the way back to the
station
• lesser intrusion to get a warrant and so that should be done
• if someone disagrees they can just consent to a search
• Carney
• mobile home where guy is trading sex for marijuana
• what is argument that police need a warrant?
• homes having being set apart from cars (used as home and lacks visibility)
• still pervasively regulated
• on the other hand
• it can move and is on a street
• court says its like a car
• Chadwick
• saying that container is like a car cause it is mobile
• why require a warrant? no exigencies and katz test met
• Arkansas v. Sanders
• containers need warrants even after put into car
• US v. Ross
• if you come across container while searching car that might have what you were
searching for in the car you don’t need a warrant
• these two cases mean it matters what the probable cause is attached to
• if attached to container you need warrant even if it is in a car
• if attache to car you don’t need warrant 
February 16
• Automobile exception
• doesn’t only apply when deciding whether to take in a car to search it
• Chambers said that taking car back to station and getting warrant v. searching
right there are both violations so why choose between them
• motor homes treated as cars
• Containers
• not pervasively regulated, can’t see inside, used primarily to move private items
• Rule: if there is a container that police want to search they need a warrant
• what if container is in the car?
• If probable cause attached to container and placed into car, need to seize the
container and get a warrant for the container(sanders)
• If you have probable cause to search the car and you come across a container
you are good (Ross)
• Acevedo
• Police may conduct a warrantless search of a container within an automobile
if they have probable cause to believe that the container holds evidence.
Basically if the container goes into the car it becomes part of the car
exception.
• This overturns previous exceptions because the last exceptions were
viewed as ridiculous.
• Plain View Exception
• The question is whether the 4th amendment was violated to have something in
plain view.
• this seems like it would be prohibited by the particularity requirement
• Horton
• Garage robbery case. Police have warrant for proceeds but that is it. Also seize
weapons, clothes, and relevant evidence while perpetrating warrant.
• The problem here was that the police were looking for the guns even though the
warrant didn’t extend to them. This might run into the requirement that finding
the evidence must inadvertent.
• What are the plain view requirements now:
• immediately apparent that stuff being seized is incriminating evidence (need
probable cause for this)
• officer must be lawfully present (warrant or warrant exception)
• have lawful right of access (example of different between this and being
lawfully present are the flight cases, you can fly over property, but you can’t
enter it)
• these requirements prevent the subjective inadvertence standard and replace it
with objective requirements
February 17
Plain View Seizures
• really plain view is a challenge to the particularity requirement of warrants
• we are losing the particularity and the need to go through a neutral magistrate
• Horton
• question here was the scope of plain view seizure:
• no inadvertence requirement, don’t want it to be governed by subjective matters
• instead the court wants objective test
• three requirements
• immediately apparent that stuff being seized is incriminating evidence (need
probable cause for this)
• have lawful right of access (example of different between this and being
lawfully present are the flight cases, you can fly over property, but you can’t
enter it)
• Worry about pretext
• What does pretext mean? It can mean a lie, but here it means that the police saw
something, but they really care about something else. (the broken tail light to pull
over the black guy)
• Arizona v. Hicks
• This is the serial number case. Officers went into apartment after guy shot through
the floor.
• Officers move stereo equipment to report serial numbers.
• Go through plain view requirements
• immediately apparent that stuff being seized is incriminating evidence:
• need probable cause for this
• this is the case here
• have lawful right of access
• need probable cause for moving the stuff
• Basically probable cause is just the standard.
• Minnesota v. Dickerson
• plain feel doctrine (if you pat down for weapons [or another valid pat down] and feel
something else [e.g. drugs tucked in waistband] that thing can be admitted)
• facts aren’t great here
• the officer said he frisked for weapons and felt something he thought was drugs,
but it wasn’t immediately apparent so he manipulated it
• same standard as plain view doctrine
• immediately apparent that stuff being seized is incriminating evidence (can’t
further handle things to confirm)
• have lawful right of access (need to develop probable cause during the pat
down)
• Pretext case
• Pretext is different than inadvertent, with pretext they have superficial motivation
• What does it mean to have a pre textual highway stop?
• pulled over for a reason that is not the police’s ultimate goal, if they hadn’t had
another reason they wouldn’t of pulled you over
• Driving While Black
• more likely to be pulled over if you are black
• Whren v. US
• This is the pull over case, where drugs were found after pre textual case
• Question is whether police got to place where drugs were in plain view in
compliance with the 4th amendment or not? This means the question is about
stop.
• Petitioners argue that probable cause not enough for traffic stops cause it is so
easy to break the rules. want the standard to be higher than probable cause.
•
February 18
• Whren
• basic problem with probable cause for traffic stops is that it is ubiquitous. the traffic
law is so large there will almost always be probable cause, so the petitioners
wanted a higher standard.
• Court won’t give them this higher standard and stick with probable cause
• court says if you have probable cause you can pull over, doesn’t matter what is
motivating
• don’t want to get into the local part of reasonableness
• want objectivity of probable cause
• if there is racial issues that isn’t a 4th amendment problem
• we just talked about DWB and pre textual stops for the hour, no substantive law
really.
• Houdari
• chasing someone and not capturing them is not a seizure
• Watson
• police do not need a warrant to arrest a felon (or someone they have probable
cause to believe committed a felony) publicly
• Payton
• why is this not plain view?
• did they violate 4th to get there?
• so was the entry legitimate
•
February 23
• Plain view rule
• exception the particularity requirement of the warrant requirement
• still has requirements though (lawfully access, immediately apparent)
• Arrests
• broad exception for public felony arrests (Watson)
• Payton
• arrest warrant is necessary for a home arrest (different from a public arrest)
• court does not require a search warrant (probable cause for seizable item and
probable cause to search for that item) just an arrest warrant (person subject
to seizure)
• this is odd because the magistrate is not making judgment about the house
with an arrest warrant even though that is what is required for a house
• two kinds of probable cause to enter home for an arrest (w/an arrest warrant)
• probable cause that the suspect is there
• probable cause to seize him (this is what is covered by the arrest warrant)
• Steagald
• go into house for suspect, he’s not there, they find cocaine of another guy
• you need a search warrant, not just an arrest warrant, for a 3rd party’s home
• Welsh v Wisconsin
• Searching & Seizing w/out probable cause
• Terry v. Ohio
• Facts
• guys looking into window and walking back and forth 
February 24
• Terry v. Ohio
• more facts overview
• Justice White on officers asking questions
• officers can ask anybody questions, people can decline to answer, this refusal
isn’t a basis for arrest, but it may alert the officer to the need for continued
observation
• requiring probable cause?
• exclusionary rule: suppress evidence if obtained in violation of the 4th
• only comes into force where the goal of the police is to yield a prosecution (so
not necessarily on the street encounters). this is a problem because of how
useless it is in other cases, such as preventing a crime without prosecution
ultimately in mind.
• this is really pretty irrelevant, the question really is whether there is a 4th
amendment event or not.
• is stop and frisk under the 4th amendment?
• yes, it certainly is
• court says this is still enough of a search and seizure that it triggers the 4th
amendment. stop is a seizure and a frisk is a search
• there is a lesser intrusion and it works in a different context, therefore we need
a balancing test
• has an objective test: look at articulable facts and the inferences a person
of reasonable caution would draw from these facts and determine whether
there would be suspicion (this is reasonable suspicion standard) 
February 25
• Terry v Ohio
• differentiated from how policy ordinarily work
• court focuses on exclusionary rule
• this works when officers looking forward to prosecuting (not on street)
• on the street this won’t work as well because prosecutions aren’t thought about
as much
• this discussion show the court is concerned with whether they want toe exclude
evidence
• main issue here was whether stop and frisk qualified as a search and seizure
• need something less than probable cause
• you need reasonable suspicion for a stop (which the court emphatically insists is
a seizure)
• it a lesser intrusion (which means we have to keep the stop short, this is not
an occasion for an arrest) and circumstances don’t really work with probable
cause
• what is reasonable suspicion: less than probable cause and more than a
hunch
• you do need facts and circumstance that would lead a reasonable person
to suspect crime is afoot
• no need for Miranda warnings
• the frisk
• when can you frisk: when an officer believes the person he is stopping is
armed and presently dangerous
• again this requires reasonable suspicion
• Harlan’s Concurrence
• concerned about the stop and wants it to be justified, after the stop the frisk is
going to be pretty much automatic, so the real boundary is the stop and not the
frisk
• wants reasonable suspicion for the stop to be really exacting
• Douglas Dissent
• problem is police are allowed to do on their own what a magistrate can’t due
under the proper procedure of the 4th
• Stops are limited
• if you stop someone for one reason you can’t just extend the stop
• US v. Hensley
• Terry had different needs and goals when preventing crime rather than
investigating prior crime (whey we don’t use probable cause), but this case
extended reasonable suspicion to completed felonies
• so now if you have reasonable suspicion to believe someone committed a prior
felony you can stop them
• still can’t frisk for evidence
• Illinois v. Caballes
• as long as a seizure is not unreasonably prolonged it’s ok 
March 2
• Terry v. Ohio and progeny
• even though stop and frisk might be regarded as a lesser intrusion than a full
search it still triggers the 4th (it is a search and seizure)
• so ordinarily you’d need probable cause, supreme court rejected this and the
requirement of a warrant
• one reason for this is that stop and frisk is somewhat less intrusive than
• other reasons is that the kind of encounter that leads to stop and frisk is different,
on the street policing, this is the kind of situation where probable cause doesn’t
provide a good fit (no crime yet, you’re acting to prevent crime), reasonable
suspicion works better here
• a completed felony would be subject to a stop with reasonable suspicion
• this shows that the lesser intrusion reasoning becomes more dominant
• frisk was specifically directed at disarming not finding evidence
• Alabama v. White
• reasonable suspicion dealt with like probable cause
• court looks at totality of circumstances with reasonable suspicion, but you can have
less evidence and less reliability.
• Michigan v. Sitz (sobriety checkpoints)
• what balancing test is used?
• states interest, effectiveness of response, level of intrusion
• these roadside test are minimally intrusive
• short time frame
• we aren’t concerned about those who broke the law, but those who are
innocent (that’s who we base our reasonable suspicion of privacy on)
• e.g. you aren’t having your reasonable suspicion of privacy invaded with a
drug dog, because you don’t need to be worried if you don’t have drugs
• Steven’s dissent
• he focuses on checkpoint being fixed or not. more anxiety if the point isn’t
fixed
• checkpoints also at night so more worrying
• also focuses on the discretion inherent in the checkpoints
• main point that Steven makes, imo, is the effectiveness measure is terrible
• Delaware v. Prouse
• officer pulls over driver to check license and registration
• asks for license and registration, smells marijuana and sees a container in plain
view that says Super Gold (a marijuana brand)
• question was whether stop was ok
• spot checks do not outweigh privacy interest of drivers
• this is differentiated from Sitz because you are being pulled over as an individual
rather than everyone being pulled over at a checkpoint
• so you can have a checkpoint where you stop people in a non-discretion based
way to check for license and registration 
March 3
• Checkpoints
• court is balancing government interest, effectiveness, and intrusion on privacy
• Sitz
• SCOTUS approves of sobriety checkpoints, dui’s are obviously important, some
conflict about intrusion, but not much intrusion both cause it is short and there is
a lack of targeting
• Prouse
• value of spot checks do not outweigh privacy interest of drivers
• Edmund
• court doesn’t allow the drug checkpoint
• problem here is that the government is not pursuing “special” highway related
objectives, just ordinary crime, and as a result there needs to be individualized
suspicion
• why does this distinction matter?
• court is focusing on primary purpose, this seems short sighted though
• Lidster
• hit and run checkpoint
• no suspicion needed cause nothing bad is suppose to happen, so this is far
less intrusive
• Search Incident to Arrest
•
March 4
• Brief overview of what we’ve talked about with road checkpoints
• Chimel
• officers find evidence of burglary after they arrest Chimel in his home
• Issue, as usual, is whether the police were able to be where they were when they
seized the evidence.
• court looks back at Rabinowitz, which essentially said that if you arrest someone
at a location you have carte blanche to search the whole location, court rules this
is too much
• court looks further back and realizes doctrine has shifted, only constant is that
the person can be searched incident to arrest
• court says search of house was way too broad
• ok, so how broad is a permissible area of search incident of arrest
• the area in the immediate control of the arrestee
• want to make sure there are no weapons arrestee can grab, which would pose
a threat
• also want to prevent easy destruction/concealing of evidence
• how does this compare to Terry
• how is it similar?
• both trying to protect officers
• both sub probable cause for the search
• what are the differences?
• Terry is narrower cause you can only look for weapons and specifically need
reasonable cause that there is a weapon (individualized suspicion for what you
are searching for)
• Don’t need probable cause for Terry, but need probable cause for arrest in
Chimel
• Police could get arrest warrant for Chimel, so why not get a search warrant?
• different to have probable cause that defendant committed a crime rather than
where things are
• you arrest covers a lot of ground that ground isn’t all an area incident to arrest
if
• could you justify a broader search incident to arrest doctrine?
• yes, if you consider 3rd parties
• concern that if incident to arrest is to wide then officers will just arrest people
wherever they want to search (ie at people’s homes)
• Robinson (229)
• guy driving with suspended license, pulled over by officer who had reason to know
driver’s license was suspended, patted down, officer finds cigarette pack, empties it
and finds heroin
• it was clear there was no weapon and the cigarette package wouldn’t contain
relevant evidence, so what was happening here?
• court says it is the arrest situation itself that matters
• the authority to search the person incident to an arrest…while based on need to
discover weapons and evidence does not depend on probability that weapons and
evidence will be found
• doesn’t matter what chance of weapons and evidence being there were you can
search no matter what with lawful arrest 
March 9
• Search Incident to Arrest
• Chimel:
• Two rationales: (1) officer safety, so disarming the arrestee; (2) preserving
evidence which would otherwise be destroyed or concealed
• this isn’t based on the probability that these things will occur,
• this extends to area within immediate control of the person being arrested
• Robinson
• this was an arrest for probable cause, so greater scope than Terry.
• doesn’t matter that it was a crime w/out evidence (traffic violation)
• court says search is fine and the court says it won’t inquire into the reality that
anything will be found (which is how a cigarette package was searched). there is
no need for individualized suspicion this is a general rule.
• Riley
• Question about searching cell phones incident to arrest
• Can’t search cell phones w/out warrant
• evidence can’t easily be destroyed
• officers aren’t in danger
• cell phones have information beyond scope of arrest
• We'll this is a clear rule
• Jones v. Riley
• Jones (GPS case), focus was on physical attachment of gps device not the data
being transmitted
• Riley, actually focused on the data
• Search Incident to an Arrest in a Car
• Belton
• A passenger compartment (and the containers within) can be searched once the
passenger has been removed and lawfully arrested
•
March 10
• Chimel
• limits search incident to arrest to areas within risk
• Robinson
• establishes wingspan rule: when someone is arrested search incident to arrest is
allowed with area in their immediate control (their wingspan)
• however you don’t have to persuade the court in every situation that there was
potentially destructible evidence or weapons
• this is opposed to something like Terry where, once weapons are ruled out, the
frisk needs to end.
• Belton
• passenger compartment of the vehicle is per se within the area of immediate control
of the arrestee
• Knowles v Iowa
• police issued citation, even though under Iowa law officer could’ve arrested, and
then searches the car (Iowa allows search incident to citation, this was eventually
overturned)
• basically Iowa had search incident to citation equal to search incident to arrest
• SCOTUS ruled there wasn’t really that much danger and there wasn’t relevant
evidence
• the problem here really is that the officer could’ve just arrested, so does this case
really do anything?
• well there are practical limits on the number of arrests officers can make
• Colb argued there is a possibility that citations may be more dangerous
• Atwater v. City of Lago Vista
• this case was a fine only misdemeanor
• she sues after being arrested for such a minor offense
• court disagrees, you can arrest someone for any offense
• why not treat the offenses differently based on whether arrestee can go to jail?
• officer on the ground might not know, this is more fair than it sounds at first, for
instance the officer wouldn’t know past offense 
March 16
• Two rationales of search incident to arrest
• preserving evidence
• officer safety
• These rationales don’t correspond to someone actually having weapons or evidence
• the scope is what is, whether weapons are there or not
• Belton
• still technically good law
• if someone is arrested in a car, the passenger compartment of the car falls under the
search incident to arrest area
• Thornton
• someone arrested outside of car after having been recently in there so it was search
incident to arrest
• Gant
• realistically this over rules Belton
• one of two things has to be true for police to perform a search into arrest of the
passenger compartment of a vehicle immediately following arrest
• wing span, the person has to be able to reach into the area
• reasonable belief, that the passenger compartment of the car contains evidence of
the crime of arrest
• Protective Sweep
• Marlyand v. Buie
• only plain view if the officer is legitimately in the place where they view the
evidence
• what does the court say is the scope of a typical sweep
• when the court are at someone’s house making an arrest they are on unfamiliar
territory, so we need a balancing test
• we aren’t requiring a search warrant or probable cause
• in this case we are worried about 3rd parties (closest we got to this was Riley,
where we said the search incident to arrest doctrine wasn’t about third parties)
• note this a cursory inspection, not a full search, so can’t look in small
containers, this part does require reasonable suspicion
• reasonable suspicion is not needed for searching areas that could conceal
people immediately adjoining the area of arrest (this is like how search
incident to arrest doesn’t require reasonable suspicion that you’ll find
weapons or evidence)
• stevens in a concurrence does require that the sweep is protective and not
opening the police to greater danger
• immediately adjoining seems to mean something like in the same room
• why does court remand?
• whether going back into the basement actually made the police safer
• court talks about Terry cause the Terry frisk is the most similar in logic to this
doctrine cause you aren’t looking for evidence there either, both are exclusively
concerned with safety and evidence is secondary 
March 17
• Two kinds of 4th amendment cases so far
• Warrant/Probable Cause Cases
• these are a kind of ceiling to what the 4th amendment requires, ie you’ll never
need more than probable cause/warrant
• in some cases this is not true, one can have probable cause and that is still not
enough, e.g. Winston v. Lee (wouldn’t let police take the bullet out for evidence
unless there was “more” than probable cause, not sure what qualifies for this)
• Reasonableness/Balancing Cases
• Checkpoints
• Stop & Frisk
• Sweeps
• all of these balance gov interest and level of intrusiveness (some balance efficacy)
and then allow less than a warrant/probable cause
• Other cases where more than probable cause is required
• Zurcher v. Stanford Daily
• Newspaper covering protest case
• Police had probable cause and warrant
• What theories did plaintiff to use defend themselves?
• innocent parties deserve more protection
• freedom of the press
• Court rules that you don’t need more than a warrant and probable cause, the
amendment does not differentiate guilty and innocent parties and that a properly
executed warrant doesn’t intrude on 1st amendment concerns
• how might you argue that innocent third parties might be treated differently
• talk about reasonable expectation of privacy
• innocent person has reasonable expectation of privacy (Place, Cabazez)
• notice Steagald (sp?) which said that a search warrant was required rather
than an arrest warrant to arrest a criminal in a third party’s home
• historical basis for protecting those who haven’t done wrong
• innocent third parties might be more likely to cooperate w/out an actual search
• counter arguments
• might not know who is innocent early in an investigation
• some culpability in not overturning evidence
• it is a lot easier to get a subpoena than a search warrant
• Colb Article w/weird hypos
• Formalist Model of 4th: whatever the doctrine requires that is the just outcome, so
if doctrine is followed that is always the right decision (ex ante case)
• Innocence Model: We would want to look at the results and not just the process.
This can’t really be turned into a principle for the police.
• A w/dead body and good spray, B w/dead body and bad spray, C no body smells
like dead body, D’s landlord hid body and D couldn’t smell it
• Officers come in for all cases
• For A officer didn’t have probable cause, had it with all other cases
• so formalism approves of B and C, but not A
• we might be morally opposed to this because A and B are the same

whereas C is different
• how about D
• makes us wonder if whether there is evidence is what informs our feelings
• so maybe we’d feel better about police coming in for D rather than C 
March 18
• Zurcher: court didn’t care that party was innocent when deciding 4th amendment
concerns
• Compare formalistic model (any outcome following the rules is right, ex ante view) v.
innocence model (ex post facto view)
• Colb ends up at innocence+targeting model, this kind of ridiculously gets at the “best
result,” Colb says what differentiates A and B is that A is victim of targeting harm
(signaled out for no particular reason)
• TN v. Garner
• this case is about heightened reasonableness, raises the question of whether
probable cause and a warrant were enough
• case is about shooting burglary suspect
• TN Statute says officer can use any force necessary to detain after giving intent to
arrest
• court further specifies there needs to be a felony and necessity
• is killing someone a seizure?
• yes, if you kill someone you restrain that person’s freedom to walk away which is
how we define seizure
• claim is made that once you meet probable cause the 4th amendment has nothing
to say on how the seizure is made (shooting v. handcuffing)
• court says this is not the case and calls for reasonableness balancing
• specifically we need to also consider intrusiveness which where we distinguish
different kind of searches
• O’Connor Dissent
• focuses on fact that court is making this decision in hindsight while officers are
making split second decisions
• officer is somewhat restrained he did say stop and the suspect kept on fleeing
the fault lies with the suspect
• burglaries are serious crimes
• this kind of state law has been around for a long time
• claims there is now a right of burglars to flee
• this is an exaggeration, the majority is just saying he police can’t shoot, there are
other ways to detain 
March 23
• Garner
• O’Connor: not appropriate to talk about deprivation from officer, fleeing felon caused
risk, felon made choice to flee.
• might be hard for suspect to hear officer, felon might not know law
• stress while fleeing might impede their information processing
• Tenessee argued for deadly force: deadly force reduces violence
• cuts down on criminals fleeing and fighting, causes submission
• this is like the seizure of the crack cocaine case (Scott v. Harris), where we didn’t
suppress evidence dropped while running and so discouraged running
• then we just went on and on and on and on
• yawn yawn yawn
•
March 24
• TN v. Garner
• does not say deadly force not allowed in all cases
• need probable cause that fleeing felon posses significant threat of serious injury or
death to police of others; or probable cause to believe the person has committed a
violent crime
• so either the felon is literally threatening the police (say fleeing and shooting); or
• probable cause of violent crime
• burglary is not a violent crime, it is a property offense and so deadly force was
not applicable here
• then more bullshitting about police stuff 
March 25
• Graham v. Connor
• when there is an excessive force claim it is 4th amendment claim
• Scott v. Harris
• high speed chase lead to injury
• guy is speeding, doesn’t pull over when signaled, then they are going around
100mph, police rams the guy, he crashes
• makes excessive use of force claim
• look at danger claims
•
April 7
• The meaning of consent
• consent searches compose a huge proportion of warrantless searches
• voluntariness is a totality of circumstances term
• person being asked to consent might or might not know there is an option to deny
consent (certainly is a relevant factor though)
• court balances the need for searches with the mandate against coercion
• you could argue that unless someone volunteers to be searched there is no
consent, but the opposite argument is that it is voluntary even if you do volunteer
under force
• should warnings be given?
• this would be impractical, court says, would ruin informal police interaction
• waiver requires knowing and voluntary consent (for instance waive right to
counsel), but consent is different, it just has to be voluntary
• how to distinguish 5th from 4th?
• 5th is right against compulsion, there isn’t a waiver to be compelled, whereas the
4th is a right of privacy
• Ill v. Rodriguez
• Apparent authority case, where beaten girl takes police to apartment and lets
police in with key after saying it was “their apartment”
• Police see drugs and arrest Rodriguez, turns out girl didn’t have actual authority
• consent can be used as long as police reasonably believed person consenting
had actual authority.
• why does this matter?
• court says they are taking an ex ante perspective, as with probable cause 
April 8
• ILL v. Rodriguez
• can police rely on consent of someone they reasonably believe has the power to
consent even if ht aspersion does not have the actual authority, it is
• court draws analogy between reasonable belief you will find evidence (probable
cause) and reasonable belief that consent was given (main difference is what you
are going for, w/probable cause you have to have suspicion of evidence not w/
consent searches, so basically the issue is w/consent searches)
• what is Marshall’s view?
• says consent searches can be ok if 3rd party really has authority. he doesn’t call
these 3rd party consent searches reasonable searches, but says it isn’t a search
at all says it really is assumed risk (like giving information to 3rd party)
• FL v. Jimeno
• Consent to a search extends to as far as a reasonable person would assume it
would (searching a car covers containers in that car).
• Fernandez v. CA
• narrows Georgia v. Randolph and focuses on Matlock. saying that if objector taken
away legitimately consenter’s consent carries the day
• Exclusionary Rule
• two views
• exclusion as 4th amendment requirement
• remedy as 4th amendment violation 
April 13
• Exclusionary Rule
• When police violate the 4th, the evident obtained as a result of this violation, is
suppressed.
• Weeks
• When there was a 4th amend violation the evidence seized illegally cannot be
used in a trial.
• this applies to investigation and trial, so misconduct by lawyers is just as bad as
misconduct by investigators (again, this case is old)
• How is state police misconduct dealt with?
• 4th not directed to their misconduct, but that’s cause this case is out of date
• Incorporation doctrine is where court says some number of federal protections
in the bill of rights also apply at the state level through the 14th amendment.
• Alito has implied everything is incorporated.
• Silver Platter Doctrine: state brings in evidence for federal agents after violating the
4th
• Byars
• state & federal joint venture to get around 4th, court won’t allow states to get
evidence in this way, this is what was done before the exclusionary rule was
applied to states
• Wolf v. CO
• state court exclusion is not required
• state’s prohibited from unreasonable search and seizure by due process (allow civ
and crim remedies, but these don’t effect the evidence itself)
• note that these are more deference than remedy, however they do allow innocent
parties more redress. whereas, with just the exclusionary rule that is a remedy
for the guilty and deters police from unlawfully searching the innocent
• Mapp v. Ohio
• Now we have the exclusionary rule at all levels, exclusionary rule necessary for
the 4th
• treats the 4th as a right or at least an essential remedy 
April 14
• Weeks: court said that there is an exclusionary rule that applies when federal officials
violate the 4th, when they violate the 4th the evidence does not come in (didn’t apply
4th to state officials)
• Silver Platter Doctrine: If state officials are really acting joint venture then when state
officials conduct unreasonable searches and seizures it is like federal officials did it.
• Wolf: upheld incorporation under due process clause and said at least the core of the
4th amendment (right against arbitrary intrusions of privacy) applies against states as
well. exclusionary rule still not required, just says exclusions is a remedy (more like a
deterrent) and allows other procedures in the case of state officials violating the 4th.
• Mapp: upholds exclusionary rule for states as well as federal actors, logic is in
accepting evidence from improper 4th amendment search/seizure judiciary itself
becomes compliant in the violation and that is not ok. (doesn’t consider what the
states were doing
• Black Concurrence: joins the 4th to the 5th amendment, says we can learn more
about these amendments by looking at the other. the right against impelled self
incrimination in the 5th amendment is analogous to the exclusionary rule
• Harlan Dissent: upset cause this case was not supposed to be about the
exclusionary rule, says more from the 4th is carried to the states that should be (how
4th is developed in fed court isn’t automatically carried down by incorporation), also
disagrees with Black’s logic about the 5th explaining the 4th in this case (5th is a
procedural trial court rule and the 4th only works before the trial)
• Standing
• In ordinary standing the question is whether there is investment in a case or
controversy and so whether they can sue. This is a little different cause that hurdle
is so ordinarily cleared here, the real question is whether they are the right person.
• Now the court means that you were the one who suffered the 4th amendment
violation (your rights were involved, note that this doesn’t require a property interest)
• Minnesota v. Olsen: if you stay overnight you have standing if house is searched
(previously this was upheld w/Jones that said you have standing if you were
legitimately on the premises)
• Rakas v. Illinois
• w/legitimate stop you can order passengers out of car, car searched perhaps w/out
probable cause. officer finds evidence from robbery in glove compartment
• Standing arguments by petitioners
• we were targets of searches and so we have standing
• court says no; each individual has 4th amendment rights, doesn’t matter who
was targeted, matters whether your expectation of privacy was violated
• say they were legitimately on the premises (the car)
• court says no; this is too broad, take Jones to stand for “a person can have a
legally sufficient interest in a place other than his own home so that the 4th
amendment protects him from unreasonable government intrusion into that
place.”
• passengers don’t have reasonable expectation in the glove compartment etc in the
area of someone else’s car (the driver’s areas)
•
April 15
• Standing
• Rakas v. Illinois
• w/legitimate stop you can order passengers out of car, car searched perhaps w/out
probable cause. officer finds evidence from robbery in glove compartment
• Standing arguments by petitioners
• we were targets of searches and so we have standing
• court says no; each individual has 4th amendment rights, doesn’t matter who
was targeted, matters whether your expectation of privacy was violated
• say they were legitimately on the premises (the car)
• court says no; this is too broad, take Jones to stand for “a person can have a
legally sufficient interest in a place other than his own home so that the 4th
amendment protects him from unreasonable government intrusion into that
place.”
• passengers don’t have reasonable expectation in the glove compartment etc in the
area of someone else’s car (the driver’s areas)
• Simmons v. US
• if somebody says I own what was seized at the suppression motion and whatever
they said at the suppression motion won’t come against them later
• MN v. Carter
• Three ways to answer this for the government
• Not a search
• Was it a reasonable search
• Standing
• no prior relationship to owner, there for commercial reasons, only there for 21/2
hours 
April 20
• MN v. Carter
• person was there for business arrangement, wasn’t there for long, doesn’t go with
MN v. Olsen of having it be at night
• Kennedy in dissent says protection extends to social guest, no way to about guests
ex ante
• Rawlings v. KY
• the fact that the seized item belongs to someone does not automatically give them
seizing, what matters is if you have a reasonable expectation of privacy in the area
that is searched.
• Colb Article
• The whole standing doctrine is in serious tension w/having an exclusionary article at
all. Exclusionary article an after the fact remedy meant to deter and mold police
behavior, which requires an ex ante analysis. Standing, on the other hand, is an ex
post facto analysis and so stands in tension with exclusionary article.
• Theory of standing is that 4th amendment is a personal right. 
April 21
• Fruit of poisonous tree
• when there is a 4th amendment violation the taint can go to second matters
• this is basically a “but for” test, if you could get the evidence otherwise there is no
reason to suppress
• Wong Sun
• look at each participant individually to judge standing (you can get this thing where
someones rights are violated but evidence still comes in for someone else)
• flagrancy, free will, intervening causes, and time effect connection of fruit to
poisoned trees
• Brown v. Ill
• Miranda doesn’t clear fruit
• Independent Sources
• Easy Case: two independent searches, violation in one search doesn’t invalidate the
other
• Hard Case: first unlawful search leads to proper pc for second search
• Murray
• Magistrates and officer decisions have to be independent initial illegal entry
• officers can claim they always wanted to go in
• Dissent wants offices to be able to show they would’ve asked for a search warrant
even if they found nothing. Majority says the proper counterfactual is to ask what
would’ve happened if you hadn’t gone in. 
April 22
• Attenuation Argument
• no exclusion based on factors distancing search from evidence
• Independent Source
• judge draws conclusion that even if initial illegal entry had never happened outcome
would’ve been the same, therefore initial action not proximate cause of turning up
evidence, so no exclusionary rule. (Murray)
• burden of proof is preponderance of evidence
• Inevitable Discovery
• Brewer v. Williams
• exception to exclusionary rule
• evidence results from 4th amendment violation, but something was happening that
would’ve lead to the evidence anyway (think of this is as a hypothetical
independent source, you don’t have an independent source, but someone not
violating the 4th was going to turn up the evidence anyway, its not like they actually
turned up the evidence like with the independent source, but they would have)
• burden of proof is preponderance of evidence
• knock and announce
• Hudson v. Michigan
• violating knock and announce is not excluded by exclusionary doctrine
• arguments why this is ok
• knock and announce doesn’t affect whether evidence is there (causation,
basically an inevitable discovery argument)
• knock and announce isn’t shielding evidence, so no exclusionary rule (odd
attenuation argument)
• cost outweigh benefits, cites alternatives for discouraging officers rather than
cost benefit for this specific instance
• Dissent-Breyer
• disagrees with all of the majority rights, basically
• Other exceptions
• Civil cases do not have exclusionary principle
• Grand Jury exception as well
• Defendant being impeached
• Leon
• police officer in good faith (objectively reasonable, in this case) relies on a warrant
that turns out to be defective the evidence does come in
• Majority
• if the magistrate is the one who made the mistake, then we would be trying to
regulate magistrates through the exclusionary rule and they are not meant to be
targets of exclusionary rule
• magistrate doesn’t need an incentive
• this rule is not effective for judges anyway
• Dissent-Brennan
• still wants 4th to apply to judges as well
• understands the trade off, but says this is inherent in the 4th and already
contemplated
• the exclusionary rule has successfully detered

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• This comes up in the case of wanting to suppress evidence so it is a judge question.

• Second, this encourages bad friendships, rather than recognizing them as a

without physical intrusion into a constitutionally protected area constitutes a

February 3rd (from James)

Brendlin v. California (p. 394, note 2)

3) What does it prove? (must be a conclusion reached by person of reasonable

• we might be morally opposed to this because A and B are the same

• the exclusionary rule has successfully detered

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