Warrant Requirement (4th Amendment)

Probable Cause
Oath or Affirmation
Particularity as to Place
Particularity as to Person/Thing to be Seized
Neutral and Detached Magistrate

What is a search?
Terry Stops
- Justified at inception and reasonably related in scope
- Basis to stop- RZBL belief criminal activity is afoot
- Basis to frisk - RZBL belief suspect armed and dangerous
- Scope-limited search of outer clothing to discover weapon
- Detention of belongings must be RZBL
- Can justify an automobile stop

“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 . . . 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”

KATZ V. US - Take Away 2 Part Test 1) subjective – was there an expectation of privacy? (did
they take reasonable steps) 2) objective - is that an expectation that society recognizes ? Rule:
The protection of the Fourth Amendment of the United States Constitution (“Constitution”),
against unreasonable searches and seizures, follows the person and not the place. Reasonable
Expectation of Privacy – Twofold requirement 1) Actual (subjective) expectation of privacy and
2) that the expectation be one that society is prepared to recognize as “reasonable”.

US v. Antoine Jones – Test - Rule - The warrantless placement of a GPS tracking device on the
undercarriage of an individual’s vehicle in order to track the person’s movements on public
streets constitutes an unlawful search in violation of the Fourth Amendment. Take Away –
Trespass was the test utilized. By putting something physically on the property Rule 1)
movement on publiv roads no rep Rule 2) Gps placement is a trespass search

California v. Billy Greenwood - Trash bags on curb not private , but trash containers are Test:
Reasonable expectation or privacy?

Danny Lee Kyllo v. United States - Kylo Test – 1) Whether the technology is available to the
public 2) whether you can see private details (intimate)
United States v. Leroy Carlton Knotts - whether you can track a drum from a business to a
secluded cabin via beeper without violating 4th amendment. Yes. It’s the same as visually seeing.

Michael Lee Smith v. Maryland – is pen register constitutes a 4th amendment search? Nah, it
doesn’t. Go ahead homie, use that shit.

Third Party Doctrine - Can’t have REP when you volunteer info.

Stored Communications Act – Gov compels wireless carriers to disclose activities. MUST
SHOW GROUNDS FOR REASOANBLE SUSPISION

Montel – Terry Stop, anonymous tip must be 1) corroborated “A person’s mere presence in a
high-crime area known for drug activity does not, by itself, justify a stop.” State v.
Washington, (Franklin Ct. App. 1988).

Florida v. J.L - )Anonymous tips for Terry Stop) – 1) must be corroborated and 2) reasonably
suspect that crime is afoot and that the persons with whom he is dealing may be armed and
presently dangerous

Ray Oliver v. United States

Open fields doctrine - Fields are not protected by 4th , they have to be sufficiently separated
though. Curtilage of the home is Dunns test. “no legitimate expectation that open fields will
remain free from warrantless intrusion by government officers.”

Public Display
1) Seeing is not a search 2) Seizure needs it’s own justification

United States v. Ronald Dunn

Curtilage of the home is a 4 part test 1) Proximity 2) Enclosure (REP) 3) Intimate Activities
(take place) 4) Efforts to exclude outsiders

California v. Ciraolo
Ariel Observation (drone) without a warrant from 1000ft of fenced in backyard? Is ok, no REP.
Plane at 1k ft – no REP

Florida v. Michael Riley

Ariel Observation from chopper from 400ft (no FAA regulation violation) – no REP, no warrant
needed. Heli at 400ft – no REP

Carpenter v. United States

Third Party Doctrine does NOT extend to CSLI (Cell Site Location Information). It is a search.

United States v. Place 1983

1) Seizing a person’s luggage for an entire weekend (3 days) until a warrant may be obtained
violates the Fourth Amendment . 2) Canine sniff is sui generis – not search under the 4th
amendment
Terry Stop – Cannot detain for 90mins and did not tell the person where they were taking the
luggage.

Illinois v. Caballes – 2005

Use of a well-trained narcotics-detection dog—one that “does not expose noncontraband items
that otherwise would remain hidden from public view,” during a lawful traffic stop, generally
does not implicate legitimate privacy interests. T/C holding stop not “unnecessarily
prolonged.”

Florida v. Jardines – 2013

Whether using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the
home is a “search” within the meaning of the Fourth Amendment. Yes, they fucked up.
“immediately surrounding and associated with the home”—what our cases call the curtilage—as
“part of the home itself for Fourth Amendment purposes.” Here there is no doubt that the officers
entered it: The front porch is the classic exemplar of an area adjacent to the home and “to which
the activity of home life extends.”

Florida v. Harries
1) A police officer has probable cause to conduct a search when “the facts available to [him]
would ‘warrant a [person] of reasonable caution in the belief’” that contraband or evidence of a
crime is present. The test for probable cause is not reducible to “precise definition or
quantification.”
2) “Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the
evidence ... have no place in the [probable-cause] decision.” All we have required is the kind of
“fair probability” on which “reasonable and prudent [people,] not legal technicians, act.”
3) Probable cause, is “a fluid concept—turning on the assessment of probabilities in particular
factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.”
Fourth Amendment
1. Protects
a. Persons
b. Houses
c. Papers
d. Effect
2. Against
a. Unreasonable Searches, and Seizures
Search
Katz
1. Reasonable Expectation of
2. Privacy (REP)
a. Subjective
b. Objective
Jones
1. Trespass to PHPE

What is a House?
1. Not Open Fields
2. Curtilage
a. Proximity
b. Enclosure
c. Usage (Intimate Activities)
d. Efforts to Exclude

REP in Specific Circumstances

Trash
On the curb for collection – no REP
Sensory Enhancement
Kyllo – Novel technology used to perceive what would previously require intrusion into
the home
Cumulative Movements
Knotts – No REP to movements on public roads as revealed by beeper placed prior to
obtaining possession of property (without a trespass)
Telephone Numbers
Smith – Numbers dialed – no REP
Info provided to third parties???
Overhead Surveillance
Ciraolo – Plane at 1,000 feet – no REP
Riley – Helicopter at 400 Feed – no REP
STANDING
Rakas v. Illinois 1978 –
Automobile Standing
To have standing against illegal search and seizure pertaining to automobile you must 1) have a
property or possessory interest in that automobile (or belongings). A person who is aggrieved by
an illegal search and seizure only through the introduction of damaging evidence secured by a
search of a third person’s premises or property has not had any of his Fourth Amendment rights
infringed.

Byrd v. U.S. (2018)

Rental car driver (even though not on the agreement) has standing (REP) re: search of car.
Possessory interest?

Minnesota v. Olsen (1990)

Overnight Guest
Status as an overnight guest is alone enough to show that he had an expectation of privacy in the
home that society is prepared to recognize as reasonable.”

Brendlin v. California (2007)

Occupant of a STOPPED car can assert a illegal stop of vehicle but not illegal search

Minnesota v. Carter – 1998

Guest do not receive 4th amendment protection. CT factors are 1)Duration of stay, 2)nature of
visit, 2) previous relationship to householder – closer to that of one simply permitted on the
premises (invitee)

Seizure of the person

US v. Mendenhall (1980)
Seize” or a person is determined by the totality of the circumstances (, in view of all of the
circumstances surrounding the incident, a reasonable person would have believed that he was not
free to leave)

1) Regardless of whether they attempted to leave or not

2) the threatening presence of several officers
3) the display of a weapon by an officer
4) some physical touching of the person of the citizen
5) or the use of language or tone of voice indicating that compliance with the officer’s
request might be compelled

California v. Hodari D.
An arrest (seizure) occurs when physical force has been applied to a person, or when a person
submits to the assertion of authority. A seizure of a person has not occurred until that person
has been physically seized, or seized through the submission to authority.

United States v. Watson – 1976

A warrantless arrest is permitted if there is probable cause to believe the person has committed a
felony. Police may arrest a suspect without a warrant if there is probable cause to believe the
suspect committed a felony.

Atwater v. City of Lago Vista – 2001

The Fourth Amendment does not prohibit a warrantless arrest for a minor offense. - If an
officer has probable cause to believe that an individual has committed even a very minor
criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the
offender

Virginia v. Moore – 2008

A police search based on probable cause does not violate the Fourth Amendment even when the
search is conducted subsequent to an arrest that is not authorized by state law.

Illinois v. Gates – 1983

Anonymous tip is corroborated with actual police findings –

2 Pronged Aguilar and Spinelli (“veracity/reliability” & “basis of knowledge” which are
considered but not exclusive) test overruled and replaced with Totality-Of-The-Circumstances
(bc more accurate).

Requires no more than a finding by an issuing magistrate that there is a “substantial basis” that a
search will uncover evidence of wrongdoing.

Whren v. U.S. – 1996

Probable Cause can be justified under conventional traffic stop

In a conventional civil traffic stop, the Fourth Amendment is met by the traditional common-law
rule that probable cause justifies a search and seizure.

“regardless of whether a police officer subjectively believes that the occupants of an automobile
may be engaging in some other illegal behavior, a traffic stop is permissible as long as a
reasonable officer in the same circumstances could have stopped the car for the suspected traffic
violation.”

Subjective intentions play no role in ordinary, probable-cause 4th Amend analysis.

D.C. v. Wesby – 2018
A court must consider the totality of the circumstances in determining whether a police officer
had probable cause to make an arrest.

These circumstances might include the

1) actions of the arrestee,
2) the physical conditions of the location where the arrest is made, and
3) the officer’s common-sense conclusions about human behavior.

Andreson v. Maryland – 1976

The Fifth Amendment’s protections against self-incrimination do not apply to information
obtained from papers or other documents which are properly seized.
“ together with other fruits, instrumentalities and evidence of crime at this [time] unknown” -
phrase must be read as authorizing only the search for and seizure of evidence relating to “the
crime of false pretenses with respect to Lot 13T.”
General Warrants are prohibited by 4th amendment
1. The introduction into evidence of a person's business records that have been seized from
the person's office does not violate the person's Fifth Amendment right to be free from
compelled self-incrimination.
2. The addition of a catchall phrase to a list of items to be searched for and seized in a
warrant does not violate the Fourth Amendment’s specificity requirement so long as it is
limited by the language of the warrant to items relating to a specific crime.
Seizure Take-aways
- Mendenhall Test - [I]n view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave.
o Government BOP (burden of proof)
- An arrest requires either physical force or, where that is absent, submission to the
assertion of authority.
- Whether offense carries jail time irrelevant
- State law does not alter what is a reasonable seizure
- Arrests that don’t require a warrant:
o Committed in Officer’s Presence
o P/C for Felony
o P/C for all Misdemeanors
- When are arrest warrants required?
o Home
Automobile Exception Take-Aways
- Don’t Get Your Legal Advice from Jay-Z
- Basis - P/C to believe vehicle contains evidence of a crime
- Scope – Where in the vehicle the item might be.
- • Rationales
o Mobility
o Increased Regulation
o Decreased Expectation of Privacy
- Extends to Containers
- Collins v. Virginia – doesn’t extend to auto within curtilage

Probable cause
- Standard
o Whether, given all the circumstances set forth in the, 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.
- To Search/Seize Evidence
o That contraband or evidence of a crime will be found at a particular place.
- To Arrest
o That a crime has been committed and that the suspect committed it.
Groh v. Ramirez – 2004
A warrant that fails to describe the “persons or things to be seized.” Is unreasonable B/c it does
not have particularly describing the things he intended to seize. Proceeding with the search is
clearly “unreasonable” under the 4th Amend.

Wilson v. Arkansas – 1995

No knock warrants – permissible if concern for destruction of evidence or drug related concerns,
in cases where a prisoner escapes from him and retreats to his dwelling. Announcing or not is
analyzed (considered) under the “reasonableness” standard by 4th amendment inquiry.

Richards v. Wisconsin – 1997

Muehler v. Mena
1) Detention in handcuffs for the length of a legal search does not violate Fourth Amendment
rights
2) (Michigan v. Summers, 452 U.S. 692 (1981) - officers’ questioning during a detention is
reasonable even if about unrelated issues)

Factors
1) “preventing flight in the event that incriminating evidence is found”
2) “minimizing the risk of harm to the officers”; and facilitating “the orderly completion of the
search,”
3) Detainees’ “self-interest may induce them to open locked doors or locked containers to avoid
the use of force.”

Maryland v. Garrison – 1987

The validity of a search warrant must be determined on the basis of the information that the
police disclose or have a duty to disclose to a magistrate. The officers’ failure to recognize the
overbreadth of the warrant was objectively understandable and reasonable.

Los Angeles County v. Rettele

A search conducted reasonably and pursuant to a valid search warrant does not violate the Fourth
Amendment.

Factors
1) Risk of harm to both the police and the occupants is minimized if the officers routinely
exercise unquestioned command of the situation
2) Officers execute a valid warrant and act in a reasonable manner to protect themselves from
harm
 Warrant Execution Take-Aways
- Knock and Announce
- Neutral and Detached Magistrate
- Broad discretion to detain
- Particularity as to Place
- Particularity as to Items to be Seized
Unlawful General Warrants involve an “Exploratory rummaging.”

Plain View Exception

Coolidge v. NH – 1971
Neutral and Detached Magistrate – Magistrate must be operative or officer involved in case, in
this case he was a operative and thus was not detached. Warrant was no good.

Under the plain-view doctrine, police may not conduct a warrantless search of an automobile if
they expected in advance to find evidence and failed to secure a warrant.
The plain-view doctrine allows police who are somewhere they are lawfully permitted to be to
legitimately seize inadvertently found evidence of another crime, which comes within plain view

Arizona v. Hicks – 1987 (stereo case)

Two Reqs for Plain View:
1. Officer somewhere he had the right to be
2. P/C to believe the object is subject to seizure
Movement of stereo defeated 1st requirement

Horton v. California – 1990

Eliminated the inadvertence requirement of Coolidge

Hicks second prong explained - “not only must the item be in plain view; its incriminating
character must also be ‘immediately apparent.’

Minnesota v. Dickerson
Court refused to extend the “plain-view” doctrine to encompass a “sense of touch”.
If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose
contour or mass makes its identity immediately apparent, there has been no invasion of the
suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the
object is contraband, its warrantless seizure would be justified by the same practical
considerations that inhere in the plain-view context
The automobile exception - is a lesser degree of protection for motor vehicles because they
can be quickly moved out of the area
California v. Carney
There is no search warrant requirement for a motor vehicle as there would be for a more
permanent structure such as a home or building, due to the inherent lower expectation of privacy
for a motor vehicle.

California v. Acevedo
When probable cause exists during legal stop, no warrant is required for a search even if
the contents are concealed.
Carroll Doctrine – P/C to search entire car => OK to open container without warrant
Chadwick Doctrine – P/C to search only container => warrant required

Acevedo Doctrine - The Fourth Amendment of the United States Constitution (“Constitution”)
does not require a warrant when probable cause exists to search a container in a vehicle. The
Fourth Amendment of the United States Constitution (“Constitution”) does not require a warrant
when probable cause exists to search a container in a vehicle.

Automobile Exception Take-Aways

- Don’t Get Your Legal Advice from Jay-Z
- Basis - P/C to believe vehicle contains evidence of a crime
- Scope – Where in the vehicle the item might be.
- • Rationales
o Mobility
o Increased Regulation
o Decreased Expectation of Privacy
- Extends to Containers
Collins v. Virginia – doesn’t extend to auto within
curtilage

Search Incident to Lawful Arrest (SILA)

Chimel v. California
Search incident to a lawful arrest - There is ample justification for a search of the arrestees
person and the area within his immediate control, from within which he might gain possession of
a weapon or destructible evidence.

Knowles v. Iowa
In the process of a lawful traffic stop, a full search of a car (or any area) a warrantless search is
unlawful when the blanket rule serves neither officer safety nor preservation of evidence.
Arizona v. Gant
Police are authorized to search a vehicle incident to arrest, only when arrestee is unsecure and
within reaching distance of the passenger compartment at the time of the search OR
reasonable to believe evidence relevant to the crime of arrest may be found in the vehicle.

Terry v. Ohio
1. Unlike a search incident to lawful arrest, a Terry stop is only concerned with officers
safety and not with preservation of evidence.

2. Reasonably Suspect
a. Criminal activity may be afoot
b. may be armed or presently dangerous
i. LIMITED TO SEARCH OF OUTTER CLOTHING

Terry accepts the risk that officers may stop innocent people. Indeed, the Fourth
Amendment accepts that risk in connection with more drastic police action; persons
arrested and detained on probable cause to believe they have committed a crime may turn
out to be innocent

Riley v. California – 2014

Officers must generally secure a warrant to search digital information on cell phone before
conducting such a search

Search Incident Take-Aways

1. Justifications
a. Officer Safety
b. Destruction of Evidence
2. Scope
a. Area from which weapon may be retrieved or evidence obtained
3. Search Incident of Recent Auto Occupant
a. Can search for evidence of offense of arrest based on RZBL
suspicion
b. Limited to Passenger Compartment
c. Does not apply when suspect no longer has access
d. Distinguish from Automobile Exception
4. Cell Phones
a. Warrant Required

U.S. v. Place
Cannot detain for 90mins and did not tell the person where they were taking the luggage.
(they also did not communicate what was going on)
Th court has not imposed nor imposes here a specific time limit on seizure based on reasonable
suspicion, brevity of the seizure is still an important consideration and therefore luggage seized
for 90min before probable cause was attained (before the dog), is NOT considered brief.
(Seizing a person’s luggage for an entire weekend until a warrant may be obtained violates the
Fourth Amendment as beyond the scope of a valid Terry stop. Also, a sniff by a well-trained
narcotics dog that does not require opening of the luggage is not a search for Fourth Amendment
purposes)

U.S. v. Sharpe
20 minute detention with Terry stop is reasonable as long as activities are reasonably tied
(confirm or dispel) suspicions.

Rodriguez v. U.S. (ASK MOORE ABOUT IDs)

Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably
should have been—completed.

Hiibel v. Nevada
1) Principals of Terry permit a State to require a suspect to disclose his name in the course of a
Terry stop.
“[I]nterrogation relating to one’s identity or a request for identification by the police does not, by
itself, constitute a Fourth Amendment seizure.”
2) it has been an open question whether the suspect can be arrested and prosecuted for refusal to
answer

Reasonable Suspicion
U.S. v. Arvizu
When determining reasonable suspicion the court must look at totality of the circumstances to
see whether officer has particularized and objective basis.
An officer’s reliance on mere hunch is not sufficient to justify a stop, the likelihood of criminal
activity may not rise to the level of criminal activity. It falls considerably shot of satisfying the
preponderance of the evidence.
Preponderance of the evidence – “more likely than not”

Illinois v. Wardlow
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. Nervous,
evasive behavior is a pertinent factor in determining reasonable suspicion.
Officers are not required to ignore the relevant characteristics of a location in determining
whether the circumstances are sufficiently suspicious to warrant further investigation.

U.S. v. Sokolow
The fact that an individual fits the profile of a drug courier DOES give rise to reasonable
suspicion thus justifying a Terry stop.

Alabama v. White
Under the totality of the circumstances the anonymous tip exhibited sufficient indicia of
reliability to justify the investigatory stop.
Some Factors:
1. Veracity
 2. Reliability
3. Basis of knowledge of an informant.

Florida v. J.L.
Corroboration must establish tip is “reliable in its assertion of illegality.”
An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a
police officer’s stop and frisk of that person. (only tip of having a gun is not enough) see Terry
Stop
The reasonable suspicion here at issue requires that a tip be reliable in its assertion of
illegality, not just in its tendency to identify a determinate person

Navarette v. California
An anonymous tip of reckless driving can support the reasonable suspicion necessary for a traffic
stop if the tip is accompanied by adequate indicia of reliability.
Indicia of reliability include a detailed description of the vehicle in question and a detailed
account of the reckless conduct.

Riley v. California
Police may not, without a warrant search digital information. No warrant for phones because
they are seized and confiscated thus no risk to evidence.

Consent
Schneckloth v. Bustamante
When a prosecutor seeks to rely on consent to justify the lawfulness of a search he has the
burden or proving that the consent was freely given and voluntary. (totality of the
circumstances)
Knowledge of ability to refuse is factored but is not totality.
sine qua non – (essential)

Georgia v. Randolph
(IF BOTH ARE PRESENT AND ONE REFUSES AND THE OTHER CONSENTS)
physically present co- occupant’s stated refusal to permit entry prevails, rendering the
warrantless search unreasonable and invalid as to him (he was present) SHARED SOCIALL
EXPECTIONS.
Fernandez v. California
When an objecting tenant leaves (whether he leaves, or is lawfully arrested), the other tenant can
lawfully consent to a search.

Exigent Circumstances (seeking warrant would be impossible or at least impractical

HOT PURSUIT

Warden, Maryland Penitentiary v. Bennie Joe Hayden -1967

1. Speed . . . was essential, and only a thorough search of the house for persons and weapons
could have insured that [fleeing suspected armed felon] was the only man present and that
the police had control of all weapons which could be used against them or to effect [sic] an
escape

2. No distinction between items of evidential value and those that include contraband, fruits of a
crime, etc

Lange v. California, 141 S. Ct. 2011, 2024 (2021)

Misdemeanors hot pursuit can wait, must get warrant (unless preventing imment harms of
violence, destruction of evidence or escaping the home)

Theodore Payton v. New York – 1980

Fourth Amendment, as applied to the states by the Fourteenth Amendment It unconstitutional to

search a home during an arrest when there is no arrest warrant and there are no exigent
circumstances even when probable cause exists or when there is statutory authority permitting
the searches.

Public Safety (EMERGENCY AID EXCEPTION)

Brigham City, Utah v. Charles W. Stuart – 2006

Objective Standard (officers motives are subjective) Applies

Two Situations Where Officer Motives Matter (Subjective Standard)

Bad Faith – Indeed, we have never held, outside limited contexts such as;

1) Inventory Search
2) Administrative Inspection

That an officers motive invalidates objectively justifiable behavior under the 4th
amendment

An action is “reasonable” under the Fourth Amendment, regardless of the individual officer’s
state of mind, “as long as the circumstances, viewed objectively, justify [the] action

Police may enter a home without a warrant if there is an objectively reasonable basis for
believing an occupant is injured or in immediate danger. Warrantless entry into a home may be
reasonable if there are exigent circumstances.

Police may enter into a home without a warrant to help an occupant who is seriously injured or in
immediate danger of injury subjective intentions of the police do not render such entry
unreasonable
Michigan v. Jeremy Fisher – 2009
Emergency Aid Exception - Here they also found signs of a recent injury, perhaps from a car
accident, outside. The need to help someone seriously injured or threatened with serious
injury.

EXIGENT CIRCUMSTANCES: PRESERVING

EVIDENCE FROM DESTRUCTION

Evanescent (soon passing, fading) Evidence Probable Cause to Believe:

1. That items subject to seizure are in a particular place and

2. That waiting for a warrant would put the evidence at serious risk of
destruction.

Kentucky v. Hollis Deshaun King – 2011

If police did not create the exigency by engaging or threatening to engage in conduct that
violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is
reasonable and thus allowed.

(1) INVENTORY SEARCH OR (2) ADMINISTRATIVE INSPECTION IS THE

EXCEPTION TO CONSIDERATION OF MOTIVE
 Consent
1. Totality of the Circumstances
2. Essentially free and unconstrained choice
3. Co-Occupant –Can Consent
a. Unless objecting co-occupant present

Exigency
1. Hot Pursuit
2. Public Safety
3. Destruction of Evidence
a. Police-created exigency –OK as long as not threatening or engaging in
4thAmendment violation

EXIGENT CIRCUMSTANCES: DUI “DRUNK

DRIVING”
Missouri v. Tyler G. McNeely

The natural dissipation of alcohol in the bloodstream does not constitute an exigency that in
every case is sufficient to justify conducting an involuntary blood test without a warrant
The invasive nature of such a test generally requires a neutral and detached magistrate to
authorize the test by issuing a warrant
Exigency in this context must be determined case by case based on the totality of the
circumstances.

Danny Birchfield v. North Dakota

i. Breath Test Refusal can be criminalized, but not blood drawing (bc of the level of
invasiveness)

ii. Police can do warrantless breathalyzer test only do it subsequent to lawful arrest

A law requiring a motorist to submit to a blood-alcohol-concentration breath test after

being lawfully arrested for driving while impaired does not violate the Fourth
Amendment’s prohibition against unreasonable searches.

(Minimally Intrusive) Fourth Amendment permits warrantless breath tests incident to arrests for
drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is
great.
Edward G. Welsh v. Wisconsin

The exigent circumstances exception to the warrant requirement generally does not apply when
only a minor crime (minor traffic offense) has been committed.

Warrant must be authorized by Neutral & Detached Magistrate

The exigent circumstances exception to the warrant requirement generally does not apply when
only a minor crime has been committed. In this case, Welsh was arrested for a minor, non-
jailable traffic offense

Take-Aways
1. Hot Pursuit
a. Fleeing Felon
b. Prior to or contemporaneous with arrest
c. Scope –detain and disarm

Public Safety
1. Objectively reasonable basis for believing that a person is in need of immediate aid.

Destruction of Evidence
1. Items subject to seizure are in a particular place and
2. Waiting for a warrant would put the evidence at serious risk of destruction.
3. Breath –can be searched incident to DUI arrest
4. Blood –warrant required absent articulated exigency
5. Totality of the circumstances
Balance the nature of intrusion against government interest

United States v. Manuel Flores-Montano (BORDER SEARCH)

Government’s authority to conduct suspicion less inspections at the border includes the authority
to remove, disassemble, and reassemble a vehicle’s fuel tank. While it may be true that some
searches of property are so destructive as to require a different result, this was not one of them.

United States v. Martinez-Fuerte–1976

[Checkpoints] stops and questioning at issue [San Clement Checkpoint] may be made in the
absence of any individualized suspicion at reasonably located checkpoints.

Referring to motorists selectively to the secondary inspection area on the basis of criteria that
would not sustain a roving-patrol stop. Thus, even if it be assumed that such referrals are made
largely on the basis of apparent Mexican ancestry, thus no constitutional violation. LATER
United States v. Ramsey –1977

Without probable cause and without a warrant customs officials can search envelopes
(international)

United States v. Montoya de Hernandez 1985

Detention of a traveler at the border, beyond the scope of a routine customs search and
inspection, is justified at its inception if customs agents, considering all the facts surrounding the
traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her
alimentary canal.

Exclusionary Rule
1. When courts prevent prosecutors from using relevant, reliable evidence against criminal
defendants, courts impede the fight against crime. (higher hurdle according to critics)
2. Remedies other than the exclusionary rule have not been effective in preventing police from
violating the rights announced in Supreme Court opinions (Other remedies exist, including money
damages, internal police department discipline, and oversight by elected officials.)

The exclusionary rule promotes police conformity with Supreme Court criminal procedure
decisions, and it does so at the cost of evidence otherwise available to convict accused criminals.

Weeks v. United States

No sanction in the judgments of the courts for. To allow private documents to be seized and
then held as evidence against citizens would have meant that the protection of the Fourth
Amendment declaring the right to be secure against such searches and seizures would be of no
value whatsoever.

Silverthorne Lumber v. U.S.

“fruit of the poisonous tree” Doctrine, illegal evidence. Is inadmissible. (causal link)

Independent Source Doctrine – Evidence obtained illegally should not be suppressed, if that
evidence is later acquired from a constitutionally valid search or seizure. Independent source
rule is an exception to the fruit of the poisonous doctrine

Silver Platter Doctrine - evidence turned over to federal officials by state officials would not be
suppressed even though it was obtained by means of an illegal search (Overruled by Mapps)

Mapp v. Ohio (Applicable to States via 5th Amendment)

All evidence obtained by searches and seizures in violation of the Fourth Amendment is
inadmissible in a state court.

1) Deterrent Safeguard 2) Judicial Integrity (no sanction) (CT cannot be accomplice for this kind
of behavior) “shall not be used at all”.
Deterrent safeguard without insistence upon which the Fourth Amendment would have been
reduced to “a form of words.” It meant, quite simply, that “conviction by means of unlawful
seizures and enforced confessions … should find no sanction in the judgments of the courts …,”
and that such evidence “shall not be used at all.”

There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional
exclusionary doctrine “[t]he criminal is to go free because the constable has blundered.” In some
cases this will undoubtedly be the result. But [] “there is another consideration—the imperative
of judicial integrity.” The criminal goes free, if he must, but it is the law that sets him free.
Nothing can destroy a government more quickly than its failure to observe its own laws, or
worse, its disregard of the charter of its own existence.

Hudson v. Michigan -2006

The exclusionary rule does not apply to violations of the knock and announce rule

We have rejected “[i]ndiscriminate application” of the rule and have held it to be applicable only
“where its remedial objectives are thought most efficaciously served”—that is, “where its
deterrence benefits outweigh its ‘substantial social costs.’”

Suppression of evidence, however, has always been our last resort, not our first impulse.

Good Faith Exception

United States v. Leon, 468 U.S. 897 (1984)
“objectively reasonable reliance on a subsequently invalidated search warrant.”

Absent:
(1) Knowing/Reckless Falsity

(2) "Rubber stamp" –Non-neutral Magistrate

(3) No substantial basis for P/C determination

Herring v. U.S.
If police reasonably believe that an arrest warrant exists but one in fact does
not exist, the evidence acquired pursuant to the unlawful arrest is admissible if the
faulty information is the result of police negligence and not deliberate police action.

Deterrent effect of suppression must be substantial and outweigh any harm to the justice
system, we conclude that when police mistakes are the result of negligence such as that
described here, rather than systemic error or reckless disregard of constitutional requirements,
any marginal deterrence does not “pay its way.” In such a case, the criminal should not “go
free because the constable has blundered.”

Rule also serves other important purposes: It “enabl[es] the judiciary to avoid the taint of
partnership in official lawlessness,” and it “assur[es] the people—all potential victims of
unlawful government conduct—that the government would not profit from its lawless
behavior, thus minimizing the risk of seriously undermining popular trust in government.”

Davis v. U.S.
A search conducted in objectively reasonable reliance upon binding appellate precedent that has
since been overruled is not subject to the exclusionary rule.

“penalizing the [arresting] officer” for following binding appellate precedent would do nothing
to “dete[r] ... Fourth Amendment violations.” It therefore declined to apply the exclusionary rule
and affirmed Davis’s conviction.

Good Faith Exception

US v. Leon
Objectively reasonable reliance on a subsequently invalidated search warrant.
Absent: (1) Knowing/reckless falsity (2) "Rubber stamp" –Non-neutral Magistrate (3) No
substantial basis for P/C determination

Herring
Negligently Maintained Database

Davis
Reliance on binding precedent

Murray v. U.S.
Independent Source –
1) Place police in same position (not worse) than had misconduct not occurred
2) Must show truly not tainted by the illegality
3) Independent source renders illegality “so attenuated as to dissipate the taint”

The independent-source doctrine does not apply if police officers were subjectively motivated
to obtain a search warrant by what they learned during an original warrantless search of
the premises, even if the warrant application does not rely on information gained during the
original search.

Inevitable Discovery – Nix v. Williams

When the challenged evidence has an independent source, exclusion of such evidence would put
the police in a worse position than they would have been in absent any error or violation.

Attenuation

Brown v. Illinois -1975

The temporal proximity of the arrest and the confession, the presence of intervening
circumstances and, particularly, the purpose and flagrancy of the official misconduct are all
relevant

Brown Factors Attenuation Doctrine (totality of the circumstances analysis

1.Temporal Proximity – (has there been passage of time)

2.Intervening Circumstances (Free Will) – (nature of it, went home and came back
voluntarily)
3.Purpose and Flagrancy of the official (police) misconduct – (did the cops do something that
is truly deserving of deterrence)

Determinations of admissibility for statements made after an illegal arrest must be made on a
case-by-case basis after assessing all relevant facts and circumstances including: Miranda
warnings, the time elapsed between the arrest and the statement, and the egregiousness of the
misconduct. The prosecution bears the burden of proving such statements were based on
free will. In this case, Brown’s statements were made a short time after his arrest, and the
officers’ constitutional violations were purposeful.

Wong Sun v. United States, 371 U.S. 471 (1963) - statements made following an illegal arrest
may be admissible if those statements are “sufficiently…act[s] of free will to purge the primary
taint

Utah v. Strieff
Unconstitutionally seized evidence is admissible if lack of ;
(1) flagrant impropriety, - Strongly favors the state. The exclusionary rule exists to deter police
misconduct. Third factor of attenuation doctrine reflects that rationale by favoring exclusion only
when the police misconduct is most in need of deterrence – that is, when it is purposeful and
flagrant.

(2) lack of temporal proximity (or) - between the initially unlawful stop and the search, favors
suppressing the evidence. Our precedents have declined to find that this factor favors attenuation
unless “substantial time” elapses between an unlawful act and when the evidence is obtained.
Here, however, Officer Fackrelld discovered drug contraband on Strieff’s person only minutes
after the illegal stop. [S]ucha short time interval counsels in favor of suppression

(3) an intervening circumstance attenuates the chain between police misconduct and the
seizure – The presence of intervening circumstances, strongly favor the state.
5th Amendment
Nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of
life, liberty, or property, without due process of law;

14th Amendment
Due Process

Brown v. Mississippi
The Fourteenth Amendment Due Process Clause is violated when a confession obtained via
physical torture is used to convict a defendant.

[t]he state is free to regulate the procedure of its courts in accordance with its own conceptions of
policy, unless in so doing it ‘offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental.’

“the freedom of the state in establishing its policy is the freedom of constitutional government
and is limited by the requirement of due process of law.”

E.E. Ashcraft v. Tennessee

A confession obtained after interrogating a subject for 36 straight hours without rest will be held
to have been made involuntarily, and thus a denial of due process of law under the Fourteenth
Amendment.

Totality of the circumstances: Standard: voluntary and freely given

Payne v. Arkansas
Totality of course of conduct must not be coerced. Must be an “expression of free choice” ,
“fundamental fairness”

Spano v. New York

“[The] petitioner’s will was overborne by official pressure, fatigue and sympathy falsely aroused,
after considering all the facts in their post-indictment setting.

Arizona v. Fulminante
The harmless-error doctrine applies to coerced confessions wrongly introduced as evidence at
trial - a finding of a coerced confession may be made if an accused person faces a credible
threat of physical violence by an agent of the government

Finding of coercion need not depend upon actual violence by a government agent; a credible
threat is sufficient. Fulminante’s will was overborne in such a way as to render his
confession the product of coercion

Colorado v. Connelly
Under the Due Process Clause, a statement may only be deemed involuntary and therefore
inadmissible if there was coercion by police. Mental State is under state rules of Evidence.

The admissibility of this kind of statement is governed by state rules of evidence, rather
than by [the Supreme Court’s] previous decisions regarding coerced confessions and
Miranda waivers

Miranda v. Arizona
Government authorities need to inform individuals of their Fifth Amendment constitutional
rights prior to an interrogation following an arrest

4 Parts to Miranda Rights

1. You have the right to remain silent.

2. Anything you say can be used against you in court.
3. You have the right to talk to a lawyer for advice before we ask you any questions.
4. You have the right to have a lawyer with you during questioning.

California v. Prysock
The warnings required and the waiver necessary in accordance with our opinion today are, in the
absence of a fully effective equivalent, prerequisites to the admissibility of any statement made
by a defendant.

As long as Miranda Rights complies with purposes, and doesn’t limit the rights of
Miranda. Standard = Fully Effective Equivalent

Duckworth v. Eagan
Miranda warnings do not have to conform to the exact formulation set out in Miranda v. Arizona,
so long as the suspect is fully informed of his rights.

Standard = Fully Effective Equivalent. They told him an attorney is assigned if and when you
go to court.

Dickerson v. United States

Miranda may not be in effect overruled by an Act of Congress, and we decline to overrule
Miranda ourselves. Miranda and its progeny in this Court govern the admissibility of
statements made during custodial interrogation in both state and federal courts.

The cops can lie to you, but you can’t lie to them. Totality of the circumstances. As long as
it voluntary is ok.

Confessions and Miranda

Miranda
1. Trigger
a. Custody
i. Taken into custody or deprived of freedom in “any significant way”
ii. McCarty – Restraints comparable to those associated with a formal
arrest
b. Interrogation
i. Express questioning or “Functional Equivalent”
ii. Words or actions on the part of the police … that the police should
know are reasonably likely to elicit an incriminating response from the
suspect
2. Advisements
a. Right to remain silent
b. Anything you Say Can (and Will) be used against you
c. Right to Consult Attorney and Have an Attorney Present During Questioning
d. If Indigent, Right to Have an Attorney Appointed Free of Charge
3. Adequacy
a. Imprecise warning must constitute “a fully effective equivalent”
 4. Waiver
a. Knowing and Intelligent
b. Can’t be “Threatened, Tricked, Cajoled” into Waiver
c. Silence Alone not enough
d. Prosecution’s heavy burden to demonstrate waiver
i. Relinquishment of the right must have been voluntary in the sense that it
was the product of a free and deliberate choice rather than intimidation,
coercion, or deception.
ii. The waiver must have been made with a full awareness both of the
nature of the right being abandoned and the consequences of the
decision to abandon it.
e. Not necessary to advise of offense suspected of
5. Invocation
a. Unambiguous
b. Right to silence – “Scrupulously honored”
c. Right to Council
i. Break in custody (14 Days)
ii. Attorney Present
iii. Re-initiation by accused
6. Exception
a. Rebuttal
b. Public Safety
c. Routine Booking Questions

Miranda
The Miranda Rule: What Is Custody?

The Miranda Rule applies only during “custodial interrogation.” Therefore, unless a suspect
is both:

(1) “in custody” and

(2) being “interrogated,” police need not provide the warnings described in Miranda.

“By custodial interrogation, we mean questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of action in any
significant way.”

The definition of “custody” under Miranda differs from the definition of a “seizure” for Fourth
Amendment purposes. In other words, a person can be “seized” (or “detained”) but not be in a
situation in which Miranda warnings are required before police may begin interrogation.

Oregon v. Mathiason
Custodial interrogation - questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any significant way

Miranda principle applicable to questioning which takes place in a prison setting during a
suspect’s term of imprisonment on a separate offense, and to questioning taking place in a
suspect’s home, after he has been arrested and is no longer free to go where he pleases.

“coercive environment”
J.D.B. v. North Carolina
It is beyond dispute that children will often feel bound to submit to police questioning when
an adult in the same circumstances would feel free to leave. Seeing no reason for police
officers or courts to blind themselves to that commonsense reality, we hold that a child's age
properly informs the Miranda custody analysis.

“in custody” is an objective inquiry

Berkemerv. McCarty
Police must issue Miranda warnings prior to all custodial interrogations, regardless of the nature
or severity of the offense

The atmosphere surrounding an ordinary traffic stop is substantially less “police dominated” than
that surrounding the kinds of interrogation at issue in Miranda itself and in the subsequent cases
in which we have applied Miranda.

Miranda not needed for routine traffic stops bc (not custody);

(A) detention of a motorist pursuant to a traffic stop is presumptively temporary and brief.
(B) circumstances associated with the typical traffic stop are not such that the motorist feels
completely at the mercy of the police.
(C) the typical traffic stop is public, at least to some degree.

Rhode Island v. Innis

Interrogation - under Miranda refers not only to express questioning, but also to any words or
actions on the part of the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to elicit an incriminating
response from the suspect.

Custodial interrogation - questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any significant way.

Illinois v. Perkins
An undercover law enforcement officer posing as a fellow inmate need not give Miranda
warnings to an incarcerated suspect before asking questions that may elicit an incriminating
response

North Carolina v. Butler

 1. An express written or oral statement of waiver of the right to remain silent or of the
right to counsel is usually strong proof of the validity of that waiver, but is not
inevitably either necessary or sufficient to establish waiver.
2. The question is not one of form, but rather whether the defendant in fact knowingly and
voluntarily waived the rights delineated in the Mirandacase.
3. [M]ere silence is not enough. That does not mean that the defendant’s silence, coupled
with an understanding of his rights and a course of conduct indicating waiver, may never
support a conclusion that a defendant has waived his rights.

Colorado v. Spring
Failure of the law enforcement officials to inform Spring of the subject matter of the
interrogation could not affect Spring’s decision to waive his Fifth Amendment privilege in a
constitutionally significant manner.

The Constitution does not require that the suspect understand every possible nuance of the
consequences of waiving his rights, but rather that he understand that whatever he says may be
used against him

Moran v. Burbine

Failure to inform Burbine about the attorney’s phone call did not affect the validity of his
waiver of rights. The waiver was not coerced, and Burbine was aware of his rights at all times.

The right to counsel does not attach until an accused is formally charged, so that right was
not violated in this case. Also, the misleading conduct by the police was not so offensive that it
deprive

Fifth Amendment constitutional rights embodied by Miranda do not require police to

notify the suspect of the presence of counsel, nor does it require police to notify counsel of
interrogations with his or her client.

Berghuis v Thompkins
A suspect who has (1) received and (2) understood the Miranda warnings, and has not invoked
his Miranda rights, waives the right to remain silent by making an uncoerced statement to the
police

Davis v. United States

A search conducted in objectively reasonable reliance upon binding appellate precedent that has
since been overruled is not subject to the exclusionary rule

Miranda Waiver:

Requires the special protection of the knowing and intelligent waiver standard:

But if a suspect makes a reference to an attorney that is ambiguous or equivocal refrence

that a reasonable officer in light of the circumstances would have understood only that
 the suspect might be invoking the right to counsel, our precedents do not require the
cessation of questioning.

Suspect must articulate his desire to have counsel present sufficiently clearly that a
reasonable police officer in the circumstances would understand the statement to be a
request for an attorney.

THE MIRANDA RULE: EXCEPTIONS

three exceptions that the Court has created to the Miranda Rule

A prosecutor may use statements against a defendant even though:

(1) those statements were obtained through custodial interrogation and

(2) police either did not provide the Miranda warnings or
(3) did so but did not obtain a valid waiver.

The three exceptions are known as the “impeachment exception,” the “emergency exception”
(also known as the “public safety exception”), and the “routine booking exception.”

Michigan v. Mosley
Right to cut off questioning must be scrupulously honored

The police here (1) immediately ceased the interrogation, resumed questioning only after the
passage of a (2) significant period of time and the provision of a fresh set of warnings, and
restricted the second interrogation to a (3) crime that had not been a subject of the earlier
interrogation.

Edwards v. Arizona
Once a suspect has received his Miranda warnings and invoked his right to counsel, the police
may not further interrogate the suspect until the suspect has been given access to counsel, unless
the suspect initiates further communication with the police.

Minnick v. Mississippi
When the accused asks for counsel, interrogation must cease and cannot begin again once
counsel is not present.

Maryland v. Shatzer
A break in custody ends the presumption of involuntariness established in Edwards v. Arizona.

Harris v. New York

Evidence inadmissible for lack of Miranda warnings does not prevent the admission of the
evidence for all purposes if the admission satisfies another legal admission, such as impeachment

Violation of Miranda result in suppression of resulting statement in the Govs case in chief but
not in rebuttal if defendant states something inconsistent with statement
New York v. Quarles
There is a public safety exception to the requirement that Miranda warnings be given before a
suspect’s answers can be admitted into evidence. Although admittedly this caveat may cloud
the Miranda rule, police officers have the ability to distinguish when this exception should
apply. Reasonably prompted by a concern for the public safety.

There is public safety exception to Miranda when: if situation warrants reasonable danger to
the public AKA whether (questions are reasonably prompted with concern for public)

Pennsylvania v. Muniz
Non-Testimonial Acts are NOT covered by Miranda

Non-Testimonial Act – simply performing actions

Testimonial Act – volitional, thought-out communication.

Waiver

Wong Son v. US
Although evidence obtained through illegal police conduct must be excluded at trial as it is “fruit
of the poisonous tree,” the connection between the illegal police conduct and a relevant piece of
evidence can become so attenuated as to dissipate the taint, and such evidence may then be
admissible.

Michigan v. Tucker
If a criminal defendant gives police the name of a witness during a custodial interrogation
conducted without a full Miranda warning, a trial court is not required to exclude from
evidence the testimony of that witness

Oregon v. Elstad
A suspect who has once responded to unwarned yet uncoercive questioning is not thereby
disabled from waiving his rights and confessing after he has been given the requisite Miranda
warnings.

Missouri v. Seibert
Post-Miranda confession is not admissible when a prior confession has been given unless the
Miranda warning and accompanying break are sufficient to give the defendant the reasonable
belief that she can decide not to speak with police.

United States v. Patane

Because the introduction of physical evidence at trial does not implicate the Self-Incrimination
Clause, suppression of physical evidence found as a result of a suspect’s voluntary but unwarned
statements is not required.

Miranda Summary
A suspect who has (1) received and understood the Miranda warnings, and (2) has not invoked
his Miranda rights, waives the right to remain silent by making an uncoerced statement to
the police. (Thompkins)

Spring Factors –Coerced waiver

1. Relinquishment of the right must have been voluntary in the sense that it was the
product of a free and deliberate choice rather than intimidation, coercion, or deception.
2. Waiver must have been made with a full awareness both of the nature of the right being
abandoned and the consequences of the decision to abandon it.

Mosely Factors
1. Immediately Ceased
2. Passage of Time
3. New Warnings
4. Different Offense