4th Amendment Flashcards
What is a search?
When there has been a violation of a reasonable expectation of privacy or a physical intrusion into a constitutionally protected space
What main cases cover search?
Katz, Jones, Jardines
What clause predominates of the 4th Amendment?
Warrant Clause
What is reasonableness clause?
fair possibility that criminal activity is afoot
What is probable cause?
minimum necessary showing to obtain a warrant, not whether searches/seizures are necessarily reasonable
Who are “the people” under the 4th amendment?
What case covers “the people”?
The People: The 4th Amendment applies to members of the national community or those with sufficient connection with the country to be part of this community, not just citizens
U.S. v. Verdugo-Uquidez (1990): Mexican citizens in Mexico are not party of “the people” because the 4th amendment was intended to protect the people form the tyranny of their own government
What is standard for search?
Standard for a search: Katz (reasonable expectation) of privacy and Jones (trespass)
What case governed before Katz? (facts and holding)
Olmstead v. U.S. (1933): wiretapping phones from street –> the 4th amendment guards only against physical intrusions into constitutionally protected areas (person, house, paper or effect)
What are the facts/holding of Katz?
Facts: outside of public booth used by Katz acting on suspicion Katz was transmitting gambling information over the phone to clients in other states
Holding: 4th amendment requires a search warrant to wiretap/listen to a public phone, the 4th amendment protects people, not places
What is the test Katz establishes?
The reasonable expectation of privacy test
1. The person has exhibited a subjective expectation of privacy (purely factual) AND
2. That expectation of privacy is one that society is prepared to recognize as reasonable or legitimate (objective)
What are the two ways the Court views the second prong of the Katz analysis?
Empirical (“reasonable”): is it possible for someone to have access to this information?
Normative (“legitimate”): does the public ordinarily have access to this information?
What is Harlan’s critique of the prongs of Katz?
1st prong problem: our expectations and the risks we assume are reflections of the laws that translate into rules/customs/values of the past and present
2nd prong problem: what is “reasonably expected” may be determined by the government to favor its own conduct rather than society’s
What is the Jones facts/holding?
Facts: GPS jeep tracker and drugs
Holding: warrantless use of a tracking device on his vehicle was a physical trespass, so was a search
- There is no expectation of privacy in public movements, so this is not a search under Katz. but this is a trespass.
- Trespass Test: A search occurs when there is a physical trespass into a constitutionally protected area (persons, houses, papers, and effects)
What is Alito and Sotomayor concurrence in Jones?
Bonus Holding (Alito Concurrence): police surveillance of a citizen’s activity can constitute a search if it is pervasive and prolonged, even though the activity is in public (28 days) most people would think long-term GPS surveillance impinges on reasonable expectations of privacy (except in the most extraordinary offenses)
Sotomayor Concurrence: Agrees with Scalia that there are two tests (Katz and Trespass). Agrees with Alito that this would be a search under Katz; previews issues with tech + gov intrusion
What is Jardines facts/holding?
Facts: dog sniff of porch for smell of marijuana
Holding: Bringing a drug-sniffing dog onto D’s porch was a search because it was a physical intrusion into a constitutionally protected area: the home/curtilage.
What does Yassky hold?
plaintiff must establish a property interest in the protected area at the time of intrusion to claim government physically intruded on one’s constitutionally protected area
What is subjective manifestation under Katz?
What case exemplifies this?
Individuals must take affirmative steps to protect their privacy interests otherwise a police inspection will not constitute a search
Bellina: Officer used step ladder to peer in window, but defendant made no attempt to cover window therefore did not sufficiently manifest a subjective privacy
Can police search an abandoned property?
Police detention and investigation of abandoned property does not trigger 4th amendment protection
What is the open fields doctrine?
What case governs this?
Open fields are not protected by the 4th amendment
- Oliver: “open fields” doctrine was still valid after Katz because a person does not have a legitimate expectation of privacy in an open field (trespass signs don’t change analysis)
How do you determine what curtilage is?
Four factors to determine if an area is curtilage and thus protected by 4th amendment:
1) Proximity of area to the house
2) Whether the area is included w/in an enclosure surrounding the house
3) Nature of the uses of the area
4) Steps taken by resident to protect are from observation
Even if property is within a curtilage, a visual inspection of the property from an open field or public space does not (no reasonable expectation of privacy, Katz #2)
What is Third Party Doctrine?
Third Party Doctrine: If information is disclosed to a third party, it is not reasonable to expect it to be private (prong 2) (An extension of open fields)
Is consensual electronic surveillance under TPD protected? (what case)
U.S. v. White (1971): Defendant had no reasonable expectation of privacy in conversation discussing illegal avidity with another person
Are financial records under TPD protected?
U.S. v. Miller (1976): Because the bank has the records, defendant has no reasonable expectation of privacy in the records
Are pen registers under TPD protected?
Smith v. Maryland (1979): Use of a pen register is not a search because third party telephone company knows what numbers you call. No reasonable expectation of privacy
Are public areas under TPD protected?
U.S. v. White (1989): officer peaked through gap in bathroom stall and saw defendant engaged in criminal activity; not a search because while defendant could expect a significant amount of privacy in the stall, the design of stall allowed officer to make her observations without placing herself in any position that would be unexpected by an occupant of the stall
Are beepers under TPD protected? (what cases (2))
U.S. v. Knotts & Karo (1983): If the public can see you moving around, there is not expectation of privacy. The surveillance was only for a day and could have been done visually, and was placed in a container/can
- Takeaway: 4th amendment does not regulate the use of radio beeper tracking devices to monitor public movements - at least where the installation of those devices does not involve a physical intrusion into a constitutionally protected person, house, or effect
Are cell-phone location under TPD protected? What case covers this?
U.S. v. Carpenter (2018): Cell Site Location Data is an exception to Third Party Doctrine
Facts: Police used cell records from Carpenter to track his location and place him in the vicinity of burglaries in which he was suspected. He was tracked for over 4 months.
Holding: warrantless search of cell phone records, which include the location movements of cell phone users, violates the 4th amendment
- Have a reasonable expectation of privacy in cell phone location data (including in public places) + cell phones have so much information
- D did not voluntarily give this information to the cellphone carrier.
- Distinguishing: Smith: pen registers have limitations
- Distinguishing: Miller: cell phones are a “pervasive and insistent part of daily life., don’t require affirmative act by the user, and not really “shared”
Is aerial surveillance under TPD protected?
If it is POSSIBLE for someone else to see then no expectation of privacy
California v. Ciraolo (1986): aerial observation from a 1000 ft of a fenced-in backyard is not a search because any public member flying in the public airspace could’ve peered into the yard
Is trash covered under TPD?
California v. Greenwood (1988): there is no reasonable expectation of privacy when defendant places their trash on the street because they have made the trash available to the public. The police should not be expected to avert their eyes from what is publicly available
Can you manipulate bags under TPD?
Bond v. U.S. (2000): Police squeezing bags on bus is a search because it goes beyond what would be expected by members of the public. Court uses normative analysis
Are canine sniffs searches?
U.S. v. Place (1983): a canine sniff of closed luggage for drugs is not a search under the expectation of privacy test because the manner was not intrusive and the information obtained was limited
Rodriquez v. U.S. (2015): five-minute extension of a traffic stop constituted an unreasonable search when waited for drug dog
Is chemical testing a search?
U.S. v. Jacobsen (1984): a law-enforcement officer is not required to obtain a warrant before conducting a chemical field test of a substance suspected to be an illegal drug because the tests could only disclose whether it was cocaine or not
Skinner v. Railway Labor Execs (1989): A drug test of urine is a search because it can reveal a lot more info (pregnancy! Prescriptions!)
Is using a thermal imaging device a search?
Kyllo v. U.S. (2001): using a thermal imaging device to detect relative amounts of heat emanating from a private home is a search
- Where the police uses a device that is (1) not in general public use to explore details of the home (2) that would previously have been unknowable without physical intrusion, the surveillance is a search is presumptively unreasonable without a warrant
Is a prison cell a search?
Court in Hudson v. Palmer (1984): prison cell has no constitutionally protected expectation of privacy in his personal cell or in papers or property in his cell
What is a seizure? (persons and things)
When government agents materially interfere with a person’s interest in being free from physical disruption and inconvenience
Seizure of houses, papers and effect occur when government agents exercise dominion and control over property or otherwise materially interfere with possessory interests.
What are the two forms of a seizure?
(1) Physical touched (physical display of authority) OR
- Whether or not the suspect is subdued
(2) Non-physical show of authority
- BUT only if the suspect is subdued
What is Torres? (facts/holding)
Facts: Torres drove away from police and cops started shooting, striking her but she was still able to get away from the police
Holding: the use of physical force with intent to restrain is a seizure even if the force used does not successfully restrain the subject. The test use of force + objective intent to restrain
What is Mendenhall?
Facts: Mendenhall was suspected of being a drug courier and when she hopped off her flight the DEA questioned her. She submitted to a strip search where they found drugs.
Holding: a person has been seized within the meaning of the 4th only if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leav
What are relevant factors in finding seizure?
- Location of the encounter, particularly whether the D is in an open public place where he is within the view of persons other than law enforcement officers
- Whether the officers touch or physically restrain the D
- Whether the officers are uniformed or in plain clothes
- Whether their weapons are displayed
- The number, demeanor and tone of voice of the officers
- Whether and for how long the officers retain D’s personal effects like tickets or identification
- Whether or not they have specifically advised D at any time that he had the right to terminate the encounter or refuse consen
What case governs that individual is free to leave when officers ask questions?
Florida v. Royer
Facts: Royer at airport and police thought he fit drug courier profile. ID themselves and requested ticket/license and then to accompany them to a room and unlock his suitcase. Royer said nothing but complied and the officers found drugs. Royer argued not free to leave.
Holding: law enforcement officers do not violate the 4th amendment by merely approaching an individual in a public place and asking if he is willing to answer questions
What case covers factory sweeps?
INS v. Delegado
Facts: Officers positioned themselves at exits of factory and displayed badges while being armed. Officers questioned immigrants in factory about immigration status
Holding: “police questioning, by itself” does not constitute in a 4th amendment violation, the employees had no reason to think they would be punished for giving truthful answers
- Doesn’t matter there were guards at the door, the employees were at work and thus were not going to leave the factory in any event - the guards were not custodial or coercive
What is the Bostick free to terminate test? (facts and holding)
Facts: Two police officers were searching a bus and asked the passengers if they could search their bags, Bostick agreed, and police found cocaine
Holding: No violation of 4A on bus when people were told they were free to give/deny consent and D consented
- Free to terminate is a better test than free to leave because people put themselves on a bus, a place where they are already not free to go where they want
What case establishes that police officers need not inform an individual they do not need to cooperate? (Facts/holding)
Drayton
Facts: Officers in plainclothes entered Greyhound bus, one at the front and another going row by row searching bags for drugs but exits were not blocked. Officers did not inform passengers of their right to refuse. Officers found drugs in D’s bag; D’s friend was arrested next to him before the police spoke with D
Holding: Cops do not need to inform passengers of their right to not cooperate, and it did not matter that his friend was arrest (if anything D was more on notice of the consequences of continuing the encounter
What case modifies to the free to leave to submission of authority?
California v. Hodari
Facts: officers approached youths and they all fled. Hodari threw a small rock (cocaine) as officer chased him and Hodari was tackled and handcuffed
Holding: In order for a show of authority to be a seizure, the suspect MUST submit to officer’s command
- No seizure because Hodari was not stopped at the moment he threw cocaine because he did not submit to authority, was not seized until they tackled him
Note: Under Mendenhall would have been seized when started being chased but court carves this out because do not want to reward people who do not obey
What case modifies to the free to leave to submission of authority?
California v. Hodari
Facts: officers approached youths and they all fled. Hodari threw a small rock (cocaine) as officer chased him and Hodari was tackled and handcuffed
Holding: In order for a show of authority to be a seizure, the suspect MUST submit to officer’s command
- No seizure because Hodari was not stopped at the moment he threw cocaine because he did not submit to authority, was not seized until they tackled him
Note: Under Mendenhall would have been seized when started being chased but court carves this out because do not want to reward people who do not obey
What are the requirements for a warrant?
Probable Cause: fair probability of criminal activity based on facts and reasonable inferences
- Threshold of proof for obtaining a warrant
Oath/Affirmation: ensures probable cause shown by persons willing to swear to the truth of statements
Particularity: must be reasonable
What is the function of the warrant?
Guards against ARBITRARY searches/seizures- specific person place/thing they are looking for
What case establishes the purpose of the warrant?
Johnson v. U.S.
Facts: Informant called about the smell of burning opium, police located smell to hotel room (a constitutional protected space like a home), cops asked to come in, then searched the place, finding opium and arrested occupants without a warrant
Holding: purpose of the warrant clause is to require probable cause judgments to be drawn by a neutral and detached magistrate (not an officer with adrenaline and who is engaged in the ‘competitive enterprise of fettering out crime’)
What is standard for probable cause to search and arrest?
Probable cause to search: fair probability the area or object searched contains evidence of a crime
Probable cause to arrest: fair probability to believe that the person arrested has committed a crime
For probable cause, what need to happen for information to be quality?
The source of information giving rise to probable cause must be vetted
- If based on police officer’s own observations, presumed reliable
- But if from a third party, reliability of the source must be considered
What is facts holding of Spinelli?
Facts: FBI had search warrant and affidavit was based on information from confidential information and FBI corroborated some of information on their own for Spinelli illegal gambling
Holding: Although FBI did corroborate some information, it was unable to corroborate enough to arise to probable cause, the facts given to FBI were innocent facts
What is the aquilar/spinelli test?
Aguilar/Spinelli Test: Both prongs must be satisfied before the magistrate can find probable cause
1. Reliability: Is the informant reliable
- Police officers and law-abiding citizens are presumed to be reliable
- Traditional informants (usually criminals and ex-criminals) are reliable IF (1) if they have good track records of providing good information, OR (2) if they make a declaration against their own interests
- Anonymous tips cannot be credible
2. Credibility: Is the information reliable
- If the informant makes a direct statement of personal knowledge (seeing drugs personally), OR
- If no direct statement of personal knowledge, but makes a statement that contains a wealth of detail that there can be an inference of personal knowledge
What happens if there is a defect in a Spinelli/Aguilar prong?
A defect in one or both prongs can be remedied if the police obtain independence evidence. The corroboration must be substantial or corroborative of suspicious facts (can’t be based on the corroboration of only innocent facts)
What test overrules Spinelli? (facts/holding)
Illinois v. Gates (1983)
Facts: Police got anonymous letter (highly detailed with specific information) about Gates in drug scheme. Police corroborated with financial records, flight reservations, surveillance of Gates’ flight and movements, there was only one discrepancy with the tip.
- Failed Spinelli test because it was an anonymous informant and only innocent facts were corroborated.
Holding: probably cause standard is a practical, nontechnical conception, (common sense), and veracity/reliability of informants shouldn’t be rigidly applied – Aguilar/Spinelli is overturned
- Here: the fact that the letter was correct about the Gate’s future plans gives the magistrate PC to assume the non-innocent allegations are also true
What is the test established in Illinois v. Gates?
Gates Totality of Circumstances/Fair Probability Test: based on common sense/practical considerations:
- The nature of the information
- Whether there has been an opportunity for the police to see or hear the matter reported
- The veracity and basis of knowledge of the informant
- Whether there has been an independent verification of the matters reported through police investigation.
Do courts apply Aguilar/Spinelli still despite it being overruled?
although Aguilar/Spinelli is overruled, courts still use it (easier to apply) because if there is probable cause under Aguilar/Spinelli then there is always probable cause Gates
What is corroboration after Gates?
Corroboration is sufficient as long as it gives the magistrate a reasonable basis to believe the informant knows what she’s talking about
What is Prandy-Binnett stand for? (facts/holding)
Probable Cause to Search
Facts: D walking through train station and officer saw small block wrapped in silver duct tape and thought it was narcotics and handcuffed person and searched further and found cocaine
Holding: Probable cause is evaluated not only from the perspective of a prudent man, but also from the particular viewpoint of the officer involved in the search or seizure
- there was a fair probability that the rectangular block contained drugs
What case is probable case for mistaken arrests? (facts/holding)
U.S. v. Valez (1983)
Facts: Officer observed narcotics sale and sent in undercover to purchase and radioed description to other officers who then arrested someone who looked similar but had facial hair (description did not) - had drugs on him but wasn’t the right person
Holding: probable cause to arrest/to search can exist even though police are mistaken in believing that the person arrested committed a crime
- Probable cause standard is based is not accuracy but fair probability
- Officers acted properly- detailed description of clothing and facial hair is irrelevant – could be worn as a disguise
What case is probable case for multiple suspects? (facts/holding)
Maryland v. Pringle
Facts: Officer pulled car over for speeding- 3 people inside, saw roll of money in glove compartment, all 3 claimed ignorance and he arrested all 3
Holding: entirely reasonable inference from these facts that any or all 3 of the occupants had knowledge of and exercised dominion and control over, the cocaine –> could infer a common enterprise (fair probability of crime)
Probable cause to arrest all of the suspects in the car
What case is probable case for multiple dog sniffs? (facts/holding)
Florida v. Harris
Facts: Dog sniff of car found no drugs but positive feedback for substances to make meth, once he was released a positive ID by dog happened again even though this time no drugs in the car
Holding: if a certified dog or with a good track record (certification from legit training record or evidence of proficiency evaluation), the alert in itself is probable cause
- D can challenge the reliability of the dog
What is specificity requirement for warrant for a search?
Requires “particularly describing the place to be searched, and the persons or things to be seized”.
What case abolishes mere instrumentalities evidence rule? (facts/holding)
Warden v. Hayden
Facts: Clothing, a cap, and a jacket, trousers, were admitted as evidence during a search for a robbed robbery
Holding: 4th amendment permits officers to seize mere evidence of a crime that is not a fruit or instrumentality of crime or contraband
- Prior to 1967: Courts limits what the government can seize executing a search warrant to only seize Instrumentalities, fruits of crime, and contraband, not mere evidence
Can police search non-suspect 3rd party premises? (facts/holding)
Zurcher v. Stanford Daily
Facts: officers had probable cause to believe that Stanford photographer had taken pictures of demonstrators who attacked a group of police officers. Obtained a search warrant for Daily’s offices. Stanford argued unconstitutional because no one in office is suspect of the case
Holding: Valid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found
- If there is probable cause for the search, the search still needs to be reasonable (ex. unreasonable to forcibly get bullets out of a victim even though that is evidence of a crime)
What is the function of Particularity Requirements for warrants?
Necessary control of officer’s discretion
Record of probable cause as to location prior to search
Prevents officer from using warrant to search wherever she chooses
What case establishes describing something to be seized? (catchall phrases)
Andersen v. Maryland: catchall phrase for warrant is constitutional
Facts: Police investigated real estate fraud, Andresen was a suspect so investigators got warrants to search his law offices for documents about the sale and conveyance of a specific lot of property. They seized 4% of his files.
Holding: The inclusion of a catch-all phrase on a search warrant doesn’t convert the search warrant into a general warrant that violates the 4th amendment. So long as it has language limiting the warrant to items related to the specific crime.
What are the four requirements for a magistrate?
Neutral & Detached: Constitution requirement to magistrates reviewing warrants
- Coolidge v. New Hampshire (1971): an executive officer, the head of law enforcement in the State, could not be the neutral and detached magistrate required by Constitution
- U.S. v. McKeever (1990): magistrate who issued the warrant was formerly in law enforcement and retained reserve status, husband was a deputy, and visited the search while being conducted was not enough to show lack of neutrality
Rubber Stamp (very hard to prove)
- U.S. v. Decker (1992): magistrate loses neutral and detached status when he fails to read a warrant because he was “intrigued” by the manner in which the officer became suspicious of the defendant
Legal Training is not Required
- Shadwick v. City of Tampa (1972): municipal clerks who weren’t lawyers were fine; only need competence
Records of Magistrate Decisions: there is no requirement that a magistrate give reasons for finding probable cause or for rejecting a warrant application
Are people arrested entitled to prompt hearing by magistrate? (facts/holding)
What case establishes what prompt is? (facts/holding)
Gerstein v. Pugh (1975): if someone is arrested on probable cause (usually in public) without a warrant, they are entitled to a prompt, post-arrest assessment of probable cause by a magistrate
County of Riverside v. McLaughlin (1991): Providing a judicial determination of probable cause within 48 hours, as a general matter, will comply with the promptness requirement. Even within 48 hours, it may be possible to show that there was an unconstitutional/unreasonable delay
What is purpose of knock and announce?
Purpose: (1) Protects citizens and law enforcement officials from violence, (2) protects individual privacy rights, and (3) Protects against needless destruction of property
What case establishes knock and announce? (facts/holding)
Wilson v. Arkansas (1995): Announcement requirement is not a rigid constitutional requirement, rather a component of 4th Amendment reasonableness inquiry
What if entry is refused after knock and announce?
What cases establish the time period?
Refused Admittance: Officers may break in if they’ve announced presence and were refused entry
- U.S. v. Knapp (1993): failure to respond in 12 seconds constituted a refusal of entry
- U.S. v. Moore (1996): entering in after 3 seconds is too fast
What are the two exceptions knock and announce?
No “Breaking”: If the door to a residence is already open, police are not required to announce their presence before entering, because the prohibition is against a “breaking” of the door
Richards v. Wisconsin (1995): exigent circumstances exception
- Must look at reasonableness – police must have reasonable suspicion that knocking and announcing would be dangerous of futile or would inhibit effective investigation by allowing destruction of evidence then they do not have to
- But there is no brightline rules or categories when it is always acceptable to not knock and announce
What are the exceptions to the warrant clause?
- Arrests
- Stop and Frisk
- Search Incident to Arrest
- Plain View and Plain Touch
- Automobiles
- Exigent Circumstances
- Special Needs
- Consent
What is the standard for a warrantless arrest?
To make a warrantless arrest the officer has probable cause (must be in public) to believe the person has committed:
- A felony (year or more in prison) & the officer is somewhere he has a right to be –> Officer doesn’t have to see the felony
- A misdemeanor (less than one year in prison) in the officer’s presence –> Officer needs to see the misdemeanor
What is the purpose of an arrest?
- Public safety – prevent someone from committing future crimes
- Deterrence
- Identifying the suspect (if they run away you cannot secure the ID)
- To search the person
- To prevent the flight of someone officers have PC of committing a crime
Are arrests in public an exception? (facts/holding/concurrence)
U.S. v. Watson
Facts: Informant with good track record accused Watson of possessing stolen credit cards, was set up on a sting to see if Watson had more cards, he indicated that Watson did, but the police arrested him and found none. They searched his car with his “go ahead” and found two cards.
Holding: Officers do not need a warrant to arrest defendant for a felony in public but have to be somewhere they have a right to be
Concurrence: anomaly in majority is that there are more protections for a search than for an arrest (things have more protections than persons?)
Can you arrest for minor crimes? (Case)
Atwater v. City of Lago Vista (2001): Bright Line Rule –> custodial arrest is always reasonable if officer has probable cause of criminal violation - any crime (even if punishment has no jail time)
Can deadly force be used to prevent escape of felon? (facts/holding)
What is the rule!!!
Tennessee v. Garner (1985): deadly force may not be used to prevent the escape of a felon unless:
- (1) it is necessary to prevent the escape AND
- (2) the officer has probable cause to believe that the suspect poses a significant threat of causing death or serious physical injury to the officers or others
Does 4th amendment or 14th amendment govern excessive force? (holding)
What are the factors?
Graham v. Connor (1989): all claims of excessive force in the making of an arrest are to be governed by the 4th amendment standards of reasonableness
Factors:
- (1) Severity of the crime
- (2) Whether the suspect poses an immediate threat to the safety of the officers or others, and
- (3) Whether the suspect is actively resisting arrest or attempting to evade arrest by flight
What case is an example of the Garner deadly force exceptions?
Scott v. Harris (2007): enforcement officials can, consistent with the 4th amendment, attempt to stop a fleeing motorist from continuing a public-endangering flight by ramming the motorist’s car from behind
- Officers are not required to avoid risk to the public while stopping their pursuit in a car
- Danger is not that Harris committed a traffic infraction, but he posed a deadly threat by fleeing/driving away (ex. of Garner test applied to misdemeanor)
What case is an example of reasonable force? (facts/holding)
Forrester v. City of San Diego
Facts: Anti-abortion demonstrators wouldn’t let people enter and exit the buildings and police used pain compliance techniques
Holding: 4th amendment does not require best practices just reasonableness
- BALANCING TEST: Nature and quality of intrusion upon arrestee’s personal security is less significant than most claims of force - no deadly force, no blows or cuts vs. City had legitimate govt. interest in dispersing and removing law breakers who were invading property and obstructing business
- Balancing based on Graham factors
- Does not need to be the most reasonable/least intrusive –> just reasonable
What does Ayers & Markovits say on force & police?
Use of force should not be used when someone is fleeing a misdemeanor, rather people should know that if they don’t comply, they will be charged with an additional crime
Are arrests in the home a warrant exception? (facts/holding)
Payton v. New York (1980): arrests in home are not warrant exception
Facts: Probable cause to believe P committed murder but no warrant. No response to knock and used crowbar to break in and enter his home
Holding: The exception to warrant requirement for public arrests does NOT extend to arrest in the home absent exigent circumstances
- ARREST WARRANT: carries with in limited authority to enter dwelling in which suspect lives only if there is reason to believe suspect is within
Does the Payton rule applies to hotels?
Payton rule applies equally to PROPERLY rented hotel/motel room during rental period and campsites as long as people are not overstaying
Does a hallway fall under the arrest in home?
U.S. v. Holland (1985): D lived in an apartment. He was arrested in the common hallway where he had to go to open the door. Court found intent in Payton to broaden the definition of “home” to include the entrance to a common hallway.
Do you need a search warrant to arrest someone in the home of a third party? (fact/holding)
Stegaald v. U.S. (1985): Search warrant needed to search third party home
Facts: Fugitive wanted on drug charges, police got info he was staying at Steagald’s house, went to search, did not find fugitive but found drugs from Steagald
Holding: A SEARCH warrant must be obtained to search for a suspect in home of a third party
- An arrest warrant did not sufficiently protect the privacy and property interests of the third-party homeowner
When do you use arrest vs. search warrant after Stegaald?
After Steagald, it is important for the officer to determine whether the suspect lives in the premises (in which an arrest warrant is sufficient) or is merely a visitor (in which case a search warrant is required)
If you are co-residents does Steagald apply? (case)
U.S. v. Litteral (1990): if suspect is CO RESIDENT of third party, then Steagald does not apply and Payton allows both arrest of subject of arrest warrant AND use of evidence found against the third party
What is standard for a Terry stop?
Stop: when a cop reasonably believes a suspect is engaged in criminal activity, a stop is permitted
What is standard for Terry frisk?
Frisk: when a cop reasonably believes a suspect is armed and dangerous, a frisk is permitted
Difference between stop and arrest?
Stop = reasonable suspicion = brief detention = No magistrate
Arrest = probable cause = full custody = magistrate involved
What case establishes Terry frisk? (facts/holding)
Facts: Experienced officer observed 2 men outside a store who walked up to window, peered inside, and walked away and then 3rd man approached and talked and then walked away. Found behavior suspicious and suspected men of planning a robbery outside the store AND thought they be armed. Officer Grabbed terry (D) and patted down his outer clothing looking for gun and found one
Holding: Officer can stop when there’s reasonable suspicion that criminal activity is afoot, can frisk when there is reasonable suspicion that a suspect is armed and dangerous to the officer or the public this standard is based on balancing the government interest against the nature of the individual interest
- Officer acted reasonably in assuming that the 2 men were planning a robbery and patdown was also reasonable because it was limited to search for weapons and officer safety outweighed individual intrusion
What case covered informants and Terry? (facts/holding)
Adams v. Williams (1972): informants and Terry: RS can come from officer’s observations or a reliable informant
Facts: Officer got tip from informant about individual seated in nearby vehicle and had drug/ gun. Approached car and when Williams rolled down window he reached in and removed gun. Williams arrested and search occurred later
Holding: Informant tips, like all other clues and evidence, can be used as reason for a stop and frisk
- Unverified tip may have been insufficient for narcotics arrest or search warrant, the info here is enough to justify reasonable suspicion
What are there 3 bright light rules under Terry?
Pennsylvania v. Mimms (1977): officers in the course of a legal stop of an automobile based on RS have an automatic right under Terry to order the driver out of the vehicle (without any individual suspicion of the driver)
Maryland v. Wilson (1997): court extended Mimms to passengers
Arizona v. Johnson (2009): Officers who conduct routine traffic stops may perform a patdown of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous
What is standard for reasonable suspicion?
Reasonable suspicion = fair possibility
Is the quantum of suspicion objective or subjective? (holding)
U.S. v. Cortez (1981): Officers must have an objective basis for suspecting the particular person stopped of criminal activity
(1) the assessment must be based upon all circumstances (facts alone might be innocent, but in the totality are suspicious)
(2) concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing
What is Kansas v. Glover? (facts/holding)
What does it stand for
Facts: Officer on patrol ran a car’s plates, found it was registered to an owner whose license was revoked. Officer did not observe anything else, no traffic infractions, and initiated a stop based solely on the revoked license. Glover (owner) was the driver
Holding: Reasonable suspicion can be based on reasonable inferences drawn from known facts
- To have license revoked in KS drivers demonstrate disregard for law
- Officer drew a commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop
Is anonymous tips basis for RS? (2 case)
Alabama v. White (1990): an anonymous tip that is “significantly corroborated” by a police officer’s investigation provides reasonable suspicion for a stop (lesser standard that Gates test for PC)
Navarette v. California (2014): low standard
Facts: Person called 911 reporting truck ran them off the road and gave make/model of car and license plate number and location. Officer saw Ds car 20 min later and followed it for 5 min and pulled him over, smelled weed and searched car and found it.
Holding: reasonable suspicion depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians (lowering bar for RS)
- Running someone off road is indicative of criminal conduct and just because there is a possibility of innocent conduct does not mean there is no reasonable suspicion
- Distinguish from JL: here the caller claims to have actually witnessed the alleged conduct, unlike JL
Is flight from police RS? (facts/holding)
Illinois v. Wardlow (2000): Flight + high crime area = reasonable suspicion
Facts: Defendant fled upon seeing caravan of police converge on an area. Officers caught up to him and stop/frisked him
Holding: flight alone cannot give rise to reasonable suspicion, but it is a factor that can be considered
Can mistakes give rise to RS? (facts/holding)
Henien v. North Carolina (2014): reasonable suspicion based mistakes of law
Facts: Officer saw a car pass and driver looked stiff and nervous, so he followed and noticed only one brake light came on, so he pulled driver over. One break light not against the law in NC, but the law was written pretty unclear
Holding: Searches and seizures based on reasonable mistakes of fact and law can be reasonable suspicion (under the objectively reasonable standard)
Can a frisk be used to search for evidence? (facts/holding)
Minnesota v. Dickerson (1993): limits Terry for protection purposes only –> officer has reason to believe that the suspect is armed & dangerous
Facts: Officer suspected drug activity and conducted a lawful stop and pat down, felt small object in pocket and determined it was not weapon but still pulled it out and it was drugs
Holding: Terry frisks are justified only for protective purposes and a search for evidence is not permitted
Does Frisk extend to grab area of car?
Michigan v. Long (1983): Terry extends to protective examinations of area beyond the person of the suspect (grab area)
Can you conduct a suspicionless search a parolee? (holding)
Samson v. California (2001): Suspicionless searches of parolees also found reasonable
Balance: Parolees expectation of privacy is substantially diminished because his liberty is conditional (signed parolee agreement) & RS would undermine ability of gov to enforce laws because parolees could anticipate searches and hide evidence
What is US v. Knight?
U.S. v. Knight (2001): no more than reasonable suspicion is required to search a probationer’s home, RS is the proper standard because probationers have diminished expectations of privacy.
Note: this is not a Terry RS case, Court is doing reasonabless analysis outside of stop and frisk
Can race be considered in regards to subjective descriptions?
Yes always!
What are the facts/holding Martinez v. Fuerte?
D was stopped near the Mexican border, Court said that the fact that someone is Mexican cannot be a part of the RS analysis, but it was okay to consider someone LOOKS Mexican
- Some scholars argue this is SCOTUS approving race in the RS totality test, but SCOTUS says they have not decided the issue
What is view #1 of race and reasonable suspicion?
it’s rationale & it works: Majority Rule: race can be a factor in totality of the circumstances analysis; it can’t be dispositive or the only factor, but it can be considered
What 2 cases establish race should be a factor for RS?
U.S. v. Weaver (8th Cir, 1992): Officer here stopped only black man on a flight for suspicious drug trafficking because the officer knew that black gangs were a problem; upheld along with other factors: came from source, city for drugs, had no identification
- “race alone cannot be the only factor, but “we cannot ignore facts simply because they may be unpleasant”
U.S. v. Ramos (1st Cir, 2010): defendants were seized while parked in a van outside a Boston train station and appeared to be Middle Eastern, there were recent terrorist bombings in urban centers so reasonable suspicion was justified there is a real risk of terrorist attacks by people from the Middle East! (& there were other factors)
What is view #2 of race and reasonable suspicion?
It’s irrational, ineffective and shouldn’t be used: Minority Rule: racial incongruity is not allowed to be a factor in suspicion (it is unAmerican to think someone might be out of place because of their race)
What is view #2 of race and reasonable suspicion?
It’s irrational, ineffective and shouldn’t be used: Minority Rule: racial incongruity is not allowed to be a factor in suspicion (it is unAmerican to think someone might be out of place because of their race)
What is view #2 of race and reasonable suspicion?
It’s irrational, ineffective and shouldn’t be used: Minority Rule: racial incongruity is not allowed to be a factor in suspicion (it is unAmerican to think someone might be out of place because of their race)
What 2 cases stand for race should be used for RS?
U.S. v. Weaver (8th Cir, 1992): Officer here stopped only black man on a flight for suspicious drug trafficking because the officer knew that black gangs were a problem; upheld along with other factors: came from source, city for drugs, had no identification
- “race alone cannot be the only factor, but “we cannot ignore facts simply because they may be unpleasant”
U.S. v. Ramos (1st Cir, 2010): defendants were seized while parked in a van outside a Boston train station and appeared to be Middle Eastern, there were recent terrorist bombings in urban centers so reasonable suspicion was justified there is a real risk of terrorist attacks by people from the Middle East! (& there were other factors)
What 2 cases stand for race should not be used for RS?
City of St. Paul v. Uber (Minn, 1990):
- Facts: Officer saw car late at night and ran plates- saw it was from a town 20 miles away, was in an area where lots of people solicit prostitutes (he thought it was out of place to see a white guy in a black neighborhood)
- Holding: no reasonable suspicion - No one from any suburb needs to justify his or her lawful presence on a public street in St. Paul
Floyd v. City of New York (SDNY, 2013): stop & frisk struck down
- Facts: NYPD disproportionately stopped and frisked blacks and Latinos, so they claimed the NYPD implemented it in a racially discriminatory fashion
- Holding: Found S&F policy violated the 4th (arbitrary stops – too many of the stops were not based on RS, they were too vague = the police violates the 4th) and 14th amendment (racial profiling violates EP)
- On efficacy of the program: Data showed that only S&F had very low hit rate (across races), but the judge did not consider the efficacy of the program in her analysis
What is view #3 of race and reasonable suspicion?
racial profiling is rational, but it is unamerican/immoral and should not be used (Kennedy)
What is view #4 of race and reasonable suspicion?
racial profiling should be used for terrorism and national security but not for ordinary domestic crimes (Turley, Obama Admin)
What does Bellin say on stop and frisk?
Bellin: inverse relationship btw constitutionality & effectiveness of NYC stop and frisk
- Thesis: NYPD aggressive policing drove down crime & incarceration, proportion to its unconstitutionality
- Worked (not because of Broken Windows) but deterrence theory: young black, brown men knew they could be S& at any time so they didn’t carry guns
What is Turley, Taylor, and Kennedy view on race and RS?
Turley: Profiling Arab and Muslim men at the airport is not only necessary but inevitable in the fight against terrorism not racist & useful; we should focus on police conduct after a stop to make sure this isn’t abused
Taylor: Profiling at airports based on national origin is imperfect, but it is cheap and effective it is a small intrusionbased on potential risk
Kennedy: Racial profiling isn’t racist (in fact it’s always used & black men commit a disproportionate mount of street crime), but its unAmerican. The costs are too high the burden is not born equally and leads to great societal tension
Is there historical significance of search incident to arrest?
A warrantless search incident to a valid arrest was an accepted practice at the time the Bill of Rights was adopted: per se rule – if PC for an arrest, then no reasonable suspicion is needed to search; can search to make sure there is no evidence or a weapon
What is purpose of search incident arrest?
Prevent destruction of evidence
Officer safety
Where are police allowed to search incident to arrest?
grab area –> area in possession and immediate control of the person under arrest
entire person arrested
What are the spatial limitations of grab area? (facts/holding)
Not in the car just regular in the home or somewhere
Chimel v. California (1969)
Facts: Officers arrive at house with arrest warrant based on PC for burglaries but did not have search warrant however they proceed to search his home (Chimel objected)
Holding: when an arrest is made, reasonable to search the person arrested to remove any weapons that they could use to resist or free, but cannot search any room other than where the arrest occurs or even dosed/concealed areas within the room itself limited to grab area
- Automatic right to search the room someone is arrested in (& other rooms if they are in the ‘grab area’
What case establishes bright line rule for search incident to arrest?
U.S. v. Robinson (1973): search incident to arrest = automatic right
Facts: D arrested for driving with expired license, cop felt an object in D’s breast pocket, reached into pocket, pulled it out - crumbled cigarette pack. Continued to search/open the cigarette pack and found drugs
Holding: Bright Line Rule: automatic right to search an arrestee’s entire person & grab area when police make an arrest, no case-by-case determination
- The search of a person incident to arrest is much more extensive that what is allowed under Terry, because the danger to officers of taking suspect into custody & transporting him is far greater than in a Terry stop
What is the “Old Belton Rule”?
New York v. Belton (1984): a passenger compartment of a car is within the grab area so cops can always search incident to arrest along with any containers found
What is Thorton v. US?
Thornton v. U.S. (2010): search power to passenger compartment granted in Belton applied whenever the person arrested was a recent occupant of car to be searched
What case clarifies the Belton rule?
Arizona v. Gant (2009): clarifying Belton
Facts: Gant was arrested for driving with a suspended license. He was handcuffed and locked in the back of a patrol car. Officers searched his car, found cocaine in the pocket of a jacket in the backseat, and a gun
Holding: Police may search a vehicle after a recent occupant’s arrest only if:
(1) the arrestee is within the grab area of the passenger at the time of the search or
(2) it is reason to believe that the passenger compartment contains (grab area) evidence for the offense the person was arrest for
Dissent: What is reason to believe?? This is bad application of the law (Belton established a per se rule) & it creates perverse incentives for police to prolong arresting someone
Can you search a cellphone incident to arrest? (facts/holding)
Riley v. California (2014): Robinson does not extend to cellphones
Facts: Riley stopped for driving w/ expired plates, when riley was arrested officers seized smart phones and searched it (pursuant to Robinson)- and found gang evidence; combined case concerned a flip phone
Holding: Applied the balancing test: Searching a cellphone is a significant intrusion into personal privacy that cannot happen without a warrant absent exigent circumstances
- Gov Int: Minimal/none: The two concerns with searches incident to arrest - safety and evidentiary – are not present with cell phones
No safety risk (they can still look at the outside for a knife)
Officers could easily seize and secure phone, while seeking a warrant to search it
- Privacy Interest: HUGE!!cell phone exposes government to far more than even a most exhaustive search of a house quantitively & qualitatively there is SO much and such personal info
Can you breathylze and blood test incident to arrest? (facts/holding)
Birchfield v. North Dakota (1973): blood tests unconstitutional & breathalyzer constitutional
Facts: Birchfield accidentally drove off the road and seemed drunk, but refused the officers’ demand to let his blood be drawn, and they took it anyway, without a warrant
Holding: states can criminalize noncompliance with a warrantless breath test; cannot do warrantless blood tests
- Breath tests don’t implicate serious privacy concerns (balancing test: government interest > privacy concerns)
- Blood tests are more intrusive and reveal much more information
Can you have a custodial arrest for a minor offense? (facts/holding)
Atwater v. California (1969): custodial arrests constitutional & warrant requirement exception
Facts: Officer who seemed to target Atwater went through a full arrest of her just for improperly seating her children (offense punishable by a $50 fine). She was removed of everything, had a mugshot, put in a jail cell, despite the fact that the crime came with no jail time, just fines and citations.
Holding: Bright line rule: custodial arrest is always reasonable if officer has probable cause of criminal violation (even if punishment for crime has no jail time)
Dissent: the woman of the court: this gives officers UNBOUNDED discretion that can be abused, people can be harassed and pre-textually searched for nothing more than a minor traffic infringement
What are pre textual stops?
Are they allowed?
Pretextual stops: concern that investigatory powers to minor crimes can be used to search for evidence of a more serious crime where PC or reasonable suspicion does not exist
Pretextual stops are allowed, and may be effective, but bad for relations (large negative imparch on relationship between police and people)
What case covers pretextual stops? (facts/holding)
Whren v. California (1996): officers subjective intent is irrelevant = pretextual stops are Constitutional
Facts: officers observed men, suspicious of drug deal, after stopping at stop sign for too long so pulled them over for traffic violations under PC standard (which is the DC standard) and saw cocaine
Holding: when there is PC to believe offense has occurred, the officer’s subjective motives for detaining person do not invalidate officers’ actions under 4th amendment
- Note: Traffic stop can only be used as a pretext under Whren if the officer has reasonable suspicion to believe that the motorist has actually violated a traffic law
Can you make a pretextual stop against a minority?
Equal Protection: equal protection clause as a constraint on officers in cases where the stop or arrest is reasonable under 4th but officers are acting pretextually against a minority
What is plain view doctrine?
Plain View Doctrine: permits an officer to make a warrantless seizure of incriminating items that they come upon while otherwise engaged in a lawful arrest, entry, or search
- mainly applies to seizure not searches
What are the requirements of plain view?
Doctrine Requirements
1. Item must have incriminated character that is immediately apparent (as soon as officer looks, she must know it’s incriminating)
2. Officer has to be lawfully located in a place where she can gain access to the object (lawful right of access)
What is Coolidge v. NH (and concurrence)?
Coolidge v. New Hampshire (1971): if officers have a right to be in a particular place and come upon evidence that they have probable cause to believe is subject to a seizure, then they may seize it
- Concurrence: Stewart: there should also be an inadvertence requirement, if officers are expecting to find something then they should put it in the warrant (then the warrant is particularized and not a general warrant)
What case establishes that inadvertence is not required for plain view? (facts/holding)
Horton v. California (1990)
Facts: Police had PC to believe that D was responsible for an armed robbery and got a warrant to search home only for rings from the robbery (not for the weapons). Cop went into search hoping to find guns anyways and did see one in plain view and seized it not inadvertently
Holding: under 4th amendment police can seize an item in plain view w/o a warrant, even if finding the item was not inadvertent, as long as police have legal right to be where item is found
- inadvertence would require knowing subjective mind of officer which court has repeatedly ruled against
Does plain view apply to seizure and searches? (facts/holding)
Arizona v. Hicks (1987): plain view applies to seizures not searches
Facts: Police entered Hicks apartment after a bullet was fired through its floor into apartment below. Officer noticed stereo that seemed out of place and moved it to find serial numbers, telephoned them in, and learned it was stolen, and seized it
Holding: probable cause is necessary to justify a search that precedes a plain view seizure and need probable cause to seize the item moving the stereos was searching them (& they didn’t have a warrant)
What case establishes plain touch?
Minnesota v. Dickerson (1993): Permits seizure of evidence discovered through the sense of touch in the course of a lawful search is allowed under plain touch doctrine, but does not apply in this case because he did more than merely touch - he pushed and prodded it
What is automobile exception?
Police may search an automobile without a warrant so long as they have PC to believe it contains evidence of criminal activity
What are rationales for automobile exception?
Cars are mobile (Caroll)
- Contents may never be found again if warrant obtained, and car moves)
- Occupants are altered
Diminished expectation of privacy in a car (California v. Carney (1985))
- Public views and subject to all kinds of inspections
What is Carroll Doctrine? (facts/holding)
Facts: D was driving in Detroit on a highway known to be used to transport bootleg liquor, officers knew the man had been previously involved in transporting liquor - searched the car without a warrant.
Holding: An officer can search car without a warrant so long as they have PC to believe it contains evidence of criminal activity
Can police officers search cars moved to station? (facts/holding)
Chambers v. Maroney
Facts: 2 men robbed gas station, police pulled men over, had PC to believe they were responsible for robbery, so they were arrested and car was brought to police station and searched and evidence of the robbery was found
Holding: police may seize a car and search at police station without a warrant if they have PC to believe the car contains evidence of criminal activity
- Policy: It would be a greater intrusion to get a warrant because it would take longer (hold car for longer)
Rule for movable containers out of cars?
What case?
Rule: if there is a movable container and there is probable cause can be seized without a warrant but a warrant is needed to search the item
U.S. v. Chadwick (1977): mobility of a footlocker justified its seizure upon PC but a warrant was required to search it unless emergency circumstances rendered a seizure insufficient to protect state interest
- Factors which diminish privacy of car DO NOT apply here luggage is not open to public view, not subject to regular inspections, not mainly for transport but rather personal effects = there is a high expectation of privacy
Can you conduct a warrantless search of closed container in car? (facts/holding)
California v. Acevedo (1991)
Facts: Police watched D enter home carrying package they had PC to believe had marijuana in it. Before warrant was obtained, D arrived at house and left after 10 min carrying bag that was same size as package and put it in trunk of car. Police followed and pulled him over and opened trunk and looked inside bag- didn’t want to lose evidence
Holding: police can conduct a warrantless search of a container within an automobile if they have probable cause to believe that the container holds evidence
- Constitutional; 4th does not require separate rules for cars and containers in cars, if you have PC for either you can search the car
What are exigent circumstances exception?
Exigent Circumstances Exception: allows warrantless entries into constitutionally protected areas when the balance of competing interests at stake in rapidly developing circumstances to show that immediate action is necessary to prevent flight, to safeguard the police or public, or to preserve evidence
- Excuses officer from having to obtain magistrate’s determination, but probable cause is still required
- Note, this exception is very fact-specific inquiry, there are no bright line rules
What is #1 EC exception and rationale?
Hot Pursuit: if officers are in “hot pursuit” of a suspect when he enters a constitutionally protected premises, then the officers may be permitted to continue their pursuit without securing a warrant
- Rationale: unrealistic to expect police officers to stop in the middle of a chase in order to apply for a warrant & suspect knows being pursued so may escape, destroy evidence, or create a safety threat
- Officers need PC that the person has committed a crime and PC that they will be found on the premise entered
What cases show hot pursuit?
U.S. v. Santana (1976): officer had PC to arrest someone when she retreated into her home, so they followed her in and arrested her
- A suspect may not defeat an arrest which has been set in motion in a public place by escaping to a private place
Welsh v. Wisconsin (1984): “hot pursuit” doctrine cannot apply where the suspect is unaware that he is being pursued by officers
What is EC exception #2?
What is the case?
Police & Public Safety: No warrant required if a reasonable officer would believe that a delay in obtaining the warrant would result in significant risk to harm to the police or members of the public.
Brigham City v. Stuart (1976)
Facts: Police called to home for a loud party and saw teens drinking alcohol in the backyard and a fight taking place inside home (looked through screen door/windows). Officer opened screened door and announced himself, but no one heard so then entered home and yelled and arrested him
Holding: an officer may enter a home without a warrant when they have an objectively reasonable basis for believing an occupant is seriously injured or imminently threatened
What is EC exception #3?
What is the case/factors to be considered?
Destruction of Evidence: If evidence will be destroyed in the time it takes to obtain a warrant, then the warrant requirement is excused (heavily disputed/very fact dependent inquiry)
Doorman v. U.S. (1970): Establishes factors for determining if urgent need
- gravity or violent nature of the offense with which the suspect is to be charged
- whether the suspect “is reasonably believed to be armed”
- a clear showing of PC to believe that the suspect committed the crime
- strong reason to believe that the suspect is in the premises being entered
- a likelihood that the suspect will escape if not swiftly apprehended
- peaceful circumstances of the entry
Can officers provoke exigent circumstances?
Kentucky v. King (211)
Rule: The fact that the police created the exigency does not mean the exigency circumstance needs to be suppressed unless the offices act unreasonably/unconstitutionally to create the exigency. And officers cannot lie and make threats (like we will come in).
Facts: Drug sting operation and officers mistakenly went into wrong apartment to arrest suspect for cocaine, knocked/announced after smelling weed- heard people inside heard moving quickly, (probably destroying evidence because of the knock). Officers kicked down door and found drugs.
Holding: Officers may enter home w/o a warrant to prevent the destruction of evidence as long as their conduct is reasonable or threatening.
- Officers must have PC to believe that dangerous activity is taking place
What are questions to ask for Special Needs?
- Is there a substantial special need outside of traditional criminal law enforcement?
- If there is a special need, is what the government doing (the way they are doing their search/seizure) reasonable? (balancing test)
What is rule of Administrative Searches?
Rule: Require compliance with a reasonable statutory administrative inspection scheme, not a warrant with probable cause.
Can you safety search a home under special needs and do you need a warrant?
Camara v. Municipal Court (1967): a warrant is required for administrative safety inspection of a home, but does not have to be based on probable cause - but instead upon a finding that a search is incompliance with a reasonable administrative scheme
Does Camara apply to non-homes?
See v. City of Seattle (1967): applies Camara to non-residential commercial structures
Does Camara apply to businesses?
New York v. Burger (1987)
Facts: police entered junkyard owned by D to inspect premises, D did not have license or a record book of his inventory as required in NY law, police then search the premises, D made no objection to the search/inspection, police found stolen vehicles during search
Holding: for pervasively regulated businesses, no warrant or probable cause is required if meet 3 requirements. Balance bc pervasively regulated industries have a decreased expectation of privacy.
What is the burger test?
Three criteria for warrantless inspection to be reasonable: Burger Test:
Is the statute informed by a substantial government interest?
- Substantial interest in decreasing auto theft
Are warrantless inspections necessary to further the regulatory scheme?
- Frequent and unannounced inspections necessary to prevent stolen cars
Is the statute’s inspection program a constitutionally adequate substitute for a warrant (are there adequate safeguards)?
- Statute provides adequate notice and limits discretion (happen regularly during business hours)
What is pervasively regulated business? (case)
City of LA v. Patel (2015): pervasively regulated businesses are those whose regulations address a clear and significant risk to public welfare; narrower standard
What does pervasively regulated mean?
What are examples of pervasively regulated businesses?
What are previously regulated businesses?
Businesses with so much regulation that they already have a reduced expectation of privacy for the reasonableness balancing test (determine by looking at rules in place)
- Junkyards, liquor sales, firearms dealing, mining, etc.
- Evidence: what exactly are the regulations (apply by comparing as more or less than other closely related industries)
What are schoolchildren exception for special needs/what is the rationale?
Do you need RS or PC?
The need to ensure a safe, healthy learning environment is a special need –> only reasonable suspicion (not probable cause required for most searches and seizures of school children)
What are two cases for schoolchildren exception for special needs?
New Jersey v. T.L.O (1985): waiting to get a warrant to search student handbag would undermine state’s interest in regulation – the states need to assure a safe learning environment (need RS, but not PC or warrant)
Stafford Unified School District v. Reding (2009): content of suspicion must match the degree of intrusion (cannot search girls underwear for ADVIL)
What is drug testing special need?
The need to deter drug use among certain groups is a special need; balance the need against privacy interests look at the invasiveness of the test
Drug testing is a search because it reveals private information (Skinner)
Can you suspicionless drug test employees? (facts/holding)
Skinner v. Railway Labor Execs
Holding: upheld a program mandating drug tests for all railroad personnel involved in certain train accidents no suspicion, PC, or warrant at all required
- There is a special need of government interest in regulating conduct of RR employees
- Test is reasonable because documented drug problem and serving as deterrence (gov. int big) vs. limited personal intrusion that is done in medical environment where you are not monitored while urinating
National Treasury Employees v. Von Raab
Holding: upheld compelled urinalysis of drug interdiction and carrying firearm employees but not handling classified documents (remanded)
- Rationale: designed to prevent the promotion of drug users to sensitive positions as much as it is designed to detect those employees who use drugs minimally intrusive testing
Can you suspicionless drug test schoolchildren? (facts/holding)
Vernonia School District v. Acton (1995): suspicionless drug testing of student athletes is constitutional because student athletes had lesser expectation of privacy (travel together, shower together, etc.) and this was especially true of athletes and there is a special need/gov. int in deterring drug use (and athletes are leaders)
How does the court extend Veronia?
Board of Education of Independent School District v. Earl
- Suspicionless drug testing of all students engaged in extracurricular activities as reasonable
- Individual privacy interest: Minimal: students volunteer for extra curriculars, and the subject themselves to the same intrusions as athletes (travel, shower)
Is drug testing politicians special needs? (facts/holding)
Chandler v. Miller (1997): State statute requiring candidates be drug tested when running for public office without any suspicion is unC.
- (1) No “special need” in drug testing politicians because the special need must be substantial to overrule individual interest and that is not true here.
- there is no demonstrated history that people running for elected office have drug problems and this is not an adequate deterrent because they can stop drug use and start again (they know the test is coming lol)
Is suspicionless drug testing pregnant moms special needs? (facts/holding)
Ferguson v. City of Charleston (1997)
Facts: State hospital policy requiring drug testing of pregnant mothers suspected of cocaine use, testing positive- required arrest and prosecution
Holding: drugs tests were not special needs searches here because the central feature of policy was fulfillment of state law enforcement goals (there was no special need! Just good old fashioned criminal search)
- Difference from other cases: Results were given to police and prosecutors and program developed with input of police and prosecutors
Can you suspicionless search a detainee for special needs?
Florence v. Board of Chosen Freeholders (1997): a strip search in jail for those who commit minor offenses does not require reasonable suspicion
Can you DNA test an arrestee? (facts/holding)
Maryland v. King (2013): DNA testing of aresetee is constitutional
Facts: Man broke into victim’s house and raped her (2003) and police unable to determine man’s ID from woman’s description, but police were able to get the man’s DNA. King arrested for unrelated assault (2009) and during booking did a buccal DNA swab standard practice for serious offenses in Maryland under a statute
Holding: 4th amendment allows states to collect and analyze DNA from people arrested, but not convicted of serious crimes special need for identification is greater than the minimal intrusion of swabbing side of mouth & DNA taken doesn’t reveal anything more than ID
Are Roadblocks and Checkpoints Suspicionless Seizures?
REMEMBER: These ARE SEIZURES but sometimes the court does special needs analysis and other times does reasonableness analysis alone
What is a good roadblock/checkpoint?
A good checkpoint is (Delaware v. Prouse):
- Limited police discretion
- Limited length of stop
- Permanent
- All drivers alerted
- Minimally intrusive
What is the case on border searches?
U.S. v. Martinez-Fuertes (1979): approved suspicionless stops at permanent checkpoints removed from the border under Terry (no reasonable suspicion)
- Balance: Necessary to implement the state interest in regulating the flow of undocumented individuals and the fixed checkpoint was minimally intrusive because you see other people getting stopped, not at the discretion of the officers
Are temporary DUI checkpoints okay? (case)
Michigan Department of Police v. Sitz (1967): temporary DUI checkpoints are reasonable to protect the safety of public roads, applying Terry
- Heavy state interest of deterring drunk driving and minimally intrusive on individual
What checkpoint special need was invalid?
City of Indianapolis v. Edmond (2000): violates primary purpose test
Facts: in order to interdict illegal drugs city, set up drug vehicle checkpoints where cars were stopped and drug dog would sniff around the car
Holding: There is not substantial special need beyond criminal law enforcement = the 4th Amendment applies.
What are inventory searches?
What is the rationale behind them?
What function is it serving?
Standard procedure for police to inventory the contents of automobiles and other containers being held in their custody (serve as a “caretaking” function)
- No reasonable suspicion or probable cause or warrant
Rationale:
(1) to protect the owner’s property while it is in police custody
(2) to protect against claims of lost of stolen property
(3) to protect the police and the public from potential danger
What are the two case on inventory searches?
Cady v. Dombrowski (1973): officer searching car for gun because person injured in accident was a cop; this initial intrusion was part of the caretaking function to protect public from possibility gun would fall into the hands of vandals
South Dakota v. Opperman (1976): approved warrantless Suspicionless inventory search of a car impounded for a parking violation if conducted pursuant to standard police procedures
What is rationale for border searches?
Rationale for border searches: (border is very loosely defined):
(1) Serve a special need beyond traditional law enforcement: protecting American borders from entrants who may bring harmful things into this country
(2) Entrants also have a diminished expectation of privacy
What are routine border searches?
What are non routine border searches?
Routine Searches/Intrusion: no reasonable suspicion, PC, or warrant required
- Searching car carefully
- Dog-sniffs
- Hole-drilled in truck, gas tanks
- Going through customs and pat-down and lifting up of shirt
Non-routine Searches/Intrusion: reasonable suspicion (but not more) required
- Looking into body cavities
- X-ray or strip search
- Taking off artificial leg
- Holding for extended periods of time (not a routine intrusion)
What border search is about mail?
U.S. v. Ramsey (1977): searches made at the border are reasonable simply by virtue of the fact that they occur at the border; grounded in the right to control who and what may enter the country (mail context)
What border search case is routine? (facts/holding)
U.S. v. Flores-Montano (2004): routine border search
Facts: D attempting to cross the border and customs official inspected his vehicle, Took car to secondary inspection station- gas tank sounded solid when tapped so inspector called mechanic to remove the tank and found drugs
Holding: where on notice because routine search at border and have diminished expectation of privacy routine procedures don’t require suspicion; this is routine
What border search case is non routine?
U.S. v. Montoya de Hernandez (1985): non-routine border search
Facts: Officers believed that D was a balloon swallower bringing drugs into the US (she had like no clothes, not hotel booked, made 8 recent trips from Columbia). They offered her to get a flight to Columbia, get an x-ray, or remain in detention until using the bathroom. She wanted a flight, they couldn’t’ get one, 16 hours later she hadn’t eaten, drank, shit so they got a warrant for x-ray, rectal exam and found a bunch of drugs.
Holding: Holding D for 16 hours is NOT a routine border intrusion, so RS governs. Okay because officers had RS she was a balloon swallower and the detention wasn’t unreasonable (even though longer than a Terry stop) because:
- Suspect created the delay, there is heavy state interest and diminished expectation of privacy, and nothing else to do about this kind of smuggling
What is the most common exception to warrant?
Most common exception: If a search is based on valid consent is reasonable, without PC or warrant!
- Not whether person consented subjectively but whether his conduct would have caused reasonable person to believe that he consented
Can declining consent be used against you (case)?
Refusing consent cannot be considered suspicious or evidence of wrongdoing (U.S. v. Prescott)
How to know whether consent was voluntary? (case that establishes factors)
US v. Gonzalez-Basulto:
- Voluntariness of D’s custodial status
- Presence of coercive police procedures
- Extent and level of D’s cooperation with police
- D’s awareness of right to refuse
- D’s education and intelligence
- D’s belief that no evidence will be obtained
What Schneckloth v. Bustamonte?
Schneckloth v. Bustamonte (1973): whether a search was voluntary or coerced is a question of fact answered by the totality of the circumstances
Can a third-party who has actual authority provide consent? (facts/holding)
U.S. v. Matlock (1977):
Facts: D arrested in yard and neighbor told them she shared house with D and they could search
Holding: search was reasonable where Mrs. Graff had actual authority to consent to a search of her home & the consent was valid
- Rests on mutual use of property by people generally having joint access/ control for most and other person assuming risk
Can a third-party who has apparent but not actual consent provide consent? (facts/holding)
Illinois v. Rodriquez (1990): search was valid where third party had apparent, but not actual authority
- Consent governed by same standard of reasonableness – allowance for reasonable mistakes of fact and law reasonably believe the 3rd party had actual consent
What if a third party allows consent and the other person says no? (case)
Georgia v. Randolph (2016): even though one occupant consents, a physically present co-occupants’ stated refusal to permit entry prevails, rendering warrantless search invalid and unreasonable as to him
What is the exclusionary rule?
What is the purpose?
Exclusionary rule is the remedy for violations of the amendments any evidence obtained in violation of 4th Amendment must be excluded at trial
PURPOSE: DETER POLICE MISCONDUCT FROM UNREASONABLE SEARCHES & SEIZURES
Case on exclusionary rule and federal courts?
Weeks v. U.S. (1914): evidence obtained in violation of the 4A must be excluded in federal courts. To sanction this would be to deny the constitution. For 4A to have value, must have rules that uphold it
What are two themes of exclusionary rule?
Two important themes:
- The exclusionary rule is the only effective means of protecting 4A rights
- Interest in judicial integrity requires that courts not sanction illegal searches by admitting the fruits of illegality into evidence
What is silver platter doctrine?
SILVER PLATTER DOCTRINE: federal officials would often allow state officers to obtain evidence illegally and then serve it to the federal officers on a “silver platter” (abolished in Elkins v. U.S. (1960))
What case applied exclusionary rule to states?
Mapp v. Ohio (1961): 4th amendment is enforceable to states through 14th amendment so the sanction of exclusion must a
What is except #1 to exclusionary rule? (case & facts/holding)
GOOD FAITH
U.S. v. Leon (1984): purpose is to deter police misconduct & no misconduct here
Facts: Police got anon tip that people were selling drugs in apartment and eventually requested a warrant and got one. Later determined that the affidavit to get the warrant did NOT establish PC so the warrant was illegal
Holding: evidence obtained in reasonable, good-faith reliance on a facially valid search warrant is not subject to the 4th amendment’s exclusionary rule, even if the warrant is later deemed defective
What about legislation errors and good faith clerical errors when it goes to good faith under exclusionary rule (cases)?
Illinois v. Krull (1987): reasonably relying on legislative acts that are later found as unconstitutional results in no exclusion because the mistake was on legislature and not police (no deterrence effect)
Arizona v. Evans (1995): clerical errors due to computer is good faith exception because no deterrent for cops, count clerks are not adjuncts to law enforcement team
Is a police error okay under good faith? (case)
Herring v. U.S. (2009): Where police personnel act negligently, but not recklessly, and lead an officer to reasonably believe an arrest warrant exists, the evidence obtained pursuant to that unlawful arrest remains admissible.
What is second exception to exclusionary rule?
STANDING
4th amendment is a personal right, only person whose rights were violated may receive the benefits of exclusion
What case establishes standing under exclusionary rule?
Rakas v. Illinois (1978)
Facts: Cops pulled over car that fit description for robbery and Rakas was passenger, searched the car and found a gun, Rakas claimed no property interest in the car or the gun, and was not driving
Holding: a person legitimately on the premises may claim a 4th amendment violation only if he has a legitimate subjective expectation of privacy in the place searched/possessory interest in the thing that is seized
What is test for standing under exclusionary rule?
Whether someone has standing depends on:
1. Whether there was a subjective expectation of privacy, and
2. Whether that expectation is reasonable
What is exception #3 to exclusionary rule?
Causation Requirement and Exception for Attenuation
Exclusionary rule doesn’t apply unless there’s a substantial causal connection between illegal activity and evidence (fruit of poisonous tree) offered at trial
What is the exception to the exception #3 of the exclusionary rule? (causation requirement)
Exception: If evidence is obtained by a legal secondary means after the initial illegal search/seizure and is sufficiently attenuated to purge the taint of the illegal action, it is admissible (Wong Sun)
- “Independent act of free will” to purge the taint. (Brown v. Illinois)
What case establishes causal connection for exception #3 of exclusionary rule? (causation requirement)
Brown v. Illinois (1978
Facts: Police investigating murder and arrested D after breaking into and searching his apartment without warrant or PC, taken to station and given Miranda warning and interrogated where he confessed right after and then again 7 hours later. Govt said causal chain was broken from Miranda warnings.
Holding: Miranda warnings by themselves are not per se attenuated
Test: the evidence to which objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint
Does exclusionary rule exception #3 apply to knock and announce rule? (facts/holding)
Hudson v. Michigan (2006): Violation of knock and announce does NOT justify exclusion of evidence found in the warranted search - not the fruit of the poisonous tree because there was attenuation
Two Factors to Consider:
- If the causal connection is too remote, or
- If the interest protected by constitutional guarantee would not be served by excluding the evidence
What about arrest warrants and exception #3 apply to knock and announce rule? (facts/holding)
Utah v. Strieff (2016): exclusionary rule and outstanding warrants
Facts: Police surveilled house and when D left house he stopped and questioned without reasonable suspicion, found a warrant, arrested him, searched him and found drugs
Holding: evidence seized incident to a lawful arrest on an outstanding warrant allowed where warrant discovered in an unconstitutional investigatory stop
- (1) Temporal proximity: favors D, evidence seized only minutes after illegal stop
- (2) Intervening: Favors govt, warrant predated the stop itself, police had duty to arrest when he discovered warrant so that’s an intervening circumstance
- (3) Flagrancy: favors Govt- not flagrant, negligent in not following protocol not misconduct
Queen Sotomayor Iconic Dissent Needs No Words
What is exception #3 to the exclusionary rule?
INDEPENDENT SOURCE
Evidence will not be excluded if obtained independently from and without reliance on any illegal police activity
What is case on independent source for exception #3 to the exclusionary rule?
Murray v. U.S. (1988)
Facts: Officers went into warehouse and saw what they perceived to be marijuana. Left without disturbing anything and got search warrant, not using any information about what they saw; went back in with warrant and seized.
Holding: does not require suppression of evidence viewed in plain sight during an illegal entry that was later discovered in the course of a properly warranted search
- When challenged evidence has an independent source, exclusion would put police in a worse position than absent any error or violation
What is exception #4 to the exclusionary rule?
INEVITABLE DISCOVERY
Hypothetical independent source exception: government must show that illegally obtained evidence would have been discovered through legitimate means independent of official misconduct
What is standard for inevitable discovery for exception #4 to the exclusionary rule? (facts/holding)
Nix v. Williams (1984): government must prove by a preponderance of evidence that the challenged evidence would have been discovered via independent legal means
Facts: officers discovered the body of a 7year old girl killed by Mr. Williams as a result of his illegal confession; officers had been conducting an extensive search party but stopped when getting the info from William
Holding: independent source & inevitable discover limit the exclusionary rule so that the gov. is not denied evidence that it would have even without the officer’s illegal activity
- Government does not benefit from illegal conduct if the gov can prove that it would have obtained the evidence legally anyways
What is US v. Andrade?
U.S. v. Andrade: court agrees with government that bag would have been searched at the station due to an inventory search, so it would have been done anyway
What are policy arguments for exclusionary rule?
(1) preserves judicial integrity, by insulating the courts from tainted evidence
(2) prevents the government from profiting from its own wrong
(3) it’s not costly, because it only excludes what should never have been obtained in the first place
(4) it’s necessary to deter police misconduct
What are policy arguments against exclusionary rule?
(1) integrity and fairness are also threatened by excluding evidence that will help the justice system to reach a true verdict
(2) the people also profit off of criminals getting put away
(3) In many situations, it is far from clear that the illegality of a search is indeed a but-for cause of the later introduction of an item found in the search/there are other ways to profit off a seizure!
(4) if deterrence is the key, the idea is to make the government pay, in some way, for its past misdeeds, in order to discourage future ones.
What are alternatives to exclusionary rule?
- Civil Damages Recovery
- Criminal Prosecutions of Offending Officers
- Police Rulemaking and Other Administrative Solutions
- Sentence Reductions
What is Wong Sun?
Facts: Toy was arrested after illegal search of his business, he was mirandized and made a statement that led the police to Yee who then led the police to Wong Sun who confessed
Causation Test established: this is a not a but-for test, but “whether the evidence “has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint”
