Fourth Amendment Right To Be Free From Unreasonable Searches & Seizures

Question 1

What does the 4th Amendment protect?

Answer 1

The right to be free from unreasonable searches and seizures AND that warrants be particular and supported by probable cause.

Question 2

Are general warrants constitutional?

Answer 2

NO.

Question 3

Searches and seizures inside a home w/o a warrant are presumptively…

Answer 3

Unreasonable.

Question 4

What does the Court in Steagold say about police searching third party homes?

Answer 4

Police need a search warrant founded on probable cause that the suspect has committed a crime/in the commission of committing the crime AND reasonable suspicion that the suspect they’re looking for is in the third party person’s home.

Question 5

What did the Court hold in Garner w/ respect to what constitutes EXCESSIVE FORCE from a 4th Amendment standard?

Answer 5

Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does NOT justify the use of deadly force to do so.

Question 6

Why did the Court in Scott hold a deputy did NOT use unreasonable force when he rammed a motorist’s car from behind to end a long “public-endangering” car chase that began when the deputy sought to pull over the motorist for driving 73 mph in a 55 mph zone?

Answer 6

The Court reasoned that the fleeing driver posed a “substantial” and “immediate” risk of serious injury to people on the road, rendering the officer’s action—seizure—reasonable.

Question 7

What standard are claims that police have used excessive force—deadly or not—in the course of an arrest, seizure, or other seizure of a free citizen?

Answer 7

The 4th Amendment “reasonableness” standard.

Question 8

Who may authorize a warrant?

Answer 8

A neutral and detached judicial officer.

Question 9

What two 4th Amendment violations occurred in the Lo-Ji Sales (adult bookstore) case?

Answer 9

1. Based on the conclusory statement of the police investigator that other similarly obscene materials would be found at the store, the warrant left it ENTIRELY TO THE DISCRETION OF OFFICIALS conducting the search to decide what items were likely obscene and to accomplish their seizure.
2. The Town Justice who issued the warrant was no longer neutral or detached after he allowed himself to become part of the search party that was essentially a police operation.

Question 10

What two gov actions do the warrant PARTICULARITY requirement intend to prevent?

Answer 10

The requirement is intended to prevent GENERAL searches, as well as to prevent the seizure of on thing under a warrant describing another?

Andresen v. Maryland (U.S. 1976)

Question 11

Under what circumstances can police justify a NO-KNOCK entry?

Answer 11

Police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime, by, for example, allowing the destruction of evidence.

Richards v. Wisconsin (U.S. 1997) (holding that the officers had a reasonable suspicion that Richards might destroy evidence if given a further opportunity to do so).

Question 12

How long must police wait before they forcibly enter a residence and execute a warrant?

Answer 12

The Court in Banks unanimously held that although the “call is a close one,” after 15 or 20 seconds w/o a response, police could fairly suspect that evidence would be destroyed if they were reticent any longer.

Question 13

Does a warrant to search a home or other premises provide IMPLICIT AUTHORITY to search persons found at the scene?

Answer 13

NO, police must have INDEPENDENT probable cause to search the person.

See Ybarra v. Illinois (U.S. 1979) (“a person’s mere propinquity to others independently suspected of criminal activity does NOT, without more, give rise to probable cause to search that person.”)

Question 14

Does information that becomes available to officer’s immediately before or during the execution of a warrant require them to cease or narrow their search?

Answer 14

YES.

But see Maryland v. Garrison (U.S. 1987) (upholding the validity of an erroneous warrant and its execution after police went to the wrong apartment, discovered Garrison’s contraband, and THEN realized they were in the wrong apartment.)

Question 15

What are the 6 major exceptions to the 4th Amendment search warrant requirement?

HINT: E.S.C.A.P.E.S.

Answer 15

(1) Exigent circumstances / Hot pursuit
(2) Search incident to arrest
(3) Consent
(4) Automobile exception
(5) Plain view
(6) Evidence obtained in the course of ADMINISTRATIVE searches
(7) Stop & Frisk

Question 16

Does the 4th Amendment require police to delay in the course of their investigation if doing so would gravely endanger the lives of others?

Answer 16

NO. For example, in Warden v. Hayden (U.S. 1967 / p. 247), the police were informed that an armed robbery had taken place and the suspect had entered his house less than five minutes before the police arrived. The police acted reasonably when they entered the house and began to search for a man of the description they had been given and the for weapons which he had used against the robbery or might use against them…. “Speed here was essential and only a thorough search of the house for persons and weapons could insure that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.”

Question 17

Would a court likely find EXIGENT CIRCUMSTANCES exist if the underlying offense for which there is probable cause to arrest is relatively minor?

Answer 17

NO. Before police can invade a home, the government has the burden to demonstrate exigent circumstances that OVERCOME the PRESUMPTION of unreasonableness that attaches to all warrantless home entries. When the government’s interest is only to arrest for a MINOR offense, that presumption of unreasonableness is difficult to rebut.

See Welsh v. Wisconsin (U.S. 1984) (holding warrantless entry of W’s house was unlawful after entering into his house w/o consent to ascertain his BAC level for a non criminal offense of operating a motor vehicle under the influence of an intoxicant.)

Question 18

If only based on the belief that a MINOR crime has been committed, is a warrantless HOT PURSUIT entry into a residence constitutional?

Answer 18

YES. In Stanton v. Sims (U.S. 2013 / p. 249), SCOTUS distinguished the Welsh v. Wisconsin (U.S. 1984) case from the present facts by pointing out that in Welsh, the police were not in an immediate or continuous pursuit of Welsh from the scene of the crime into the home.

Question 19

May police enter a home w/o a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury?

Answer 19

YES. It triggers the EXIGENT CIRCUMSTANCES exception.

See Utah v. Stewart (U.S. 2006 / p.250), where at 3 a.m., officers responded to a call about a loud house party at a nearby residence, observed 2 juveniles drinking beer in the backyard, and subsequently saw through a screen door and windows a fight breaking out between a juvenile and an adult.

Question 20

Under what circumstances does the natural dissipation of alcohol in the blood stream justify a warrantless intrusion of a person’s BODY on EXIGENCY grounds?

Answer 20

1. When specific facts of a case — e.g. a delay caused by the investigation at the scene of the accident and the trip to the hospital — leave the officers with no time to seek out a magistrate and secure a warrant. See Schmerber v. California (U.S. 1966 / p. 252).

OR

2. When a driver is UNCONSCIOUS.

Question 21

Officers bang on the home of a door and yell “police” numerous times, get no answer at the door but hear people inside moving / hear things being moved around in the home. Then police announce they’re coming in and kick down the door and find drugs in plain view. Constitutional?

Answer 21

YES. See Kentucky v. King (U.S. 2011 / p. 254).

Question 22

When police execute a valid arrest warrant inside a suspect’s home, what does the 4th Amendment limit their scope of search to?

Answer 22

At the suspect’s home w/ only an arrest warrant (and no search warrant), there is only constitutional justification for search of the arrestee’s person and the area “within his immediate control” — meaning the area from within which he might gain possession of a weapon or destructible evidence.

See Chimel v. California (U.S. 1969)

Question 23

What is the “principle of particular justification” applied by Chimel v. California and stated in Terry v. Ohio?

Answer 23

According to this principle, “the police must, whenever PRACTICABLE, obtain advance judicial approval of searches and seizures through the warrant procedure,” and “the scope of a search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.’”

Question 24

Assuming that justification exists to issue a search warrant, how broad can a warrantless scope of the search be?

Answer 24

Assuming that justification exists, the scope of the permissible warrantless search must be NO BROADER than justification for the warrantless conduct compels. Once circumstances that justify the warrantless conduct no longer exist, or once the police go beyond the legitimate scope of the warrantless search, the original obtain-a-warrant default position returns.

Question 25

How did U.S. v. Robinson (1973 / p. 264), “the cigarette box w/ heroin” case, expand the lawful scope of searching people in custody, post Chimel?

Answer 25

In order to justify a warrantless search of a person incident to a lawful custodial arrest, an arresting officer DOES NOT need probable cause to believe that the arrestee has a weapon or criminal evidence on his person. The right to conduct the warrantless search is AUTOMATIC: if the custodial arrest is based on probable cause, NO MORE is needed.

Question 26

What is the ARREST INVENTORIES exception to the search warrant requirement?

Answer 26

Any person who will be incarcerated, even temporarily, undergoes a second search: “arrest inventory.” This inventory search, which occurs w/o a warrant and w/o probable cause, is constitutionally JUSTIFIED on various grounds (p. 266). To be valid, the inventory must follow standard procedures in that jurisdiction.

Question 27

May police, without a warrant, search digital information on a cell phone seized from an individual who has been arrested?

Answer 27

NO. When “privacy-related concerns are weighty enough” a “search may require a warrant” regardless of the diminished expectations of privacy of the arrestee.

See Riley v. California (U.S. 2014 / p. 267) (“The fact that technology now allows an individual to carry such information in his hand does NOT make the information any less worthy of the protection for which the Founders fought.”)

Question 28

Are warrantless BREATH TESTS incident to a lawful arrest constitutional?

Answer 28

YES, in fact they are per se constitutional. Weighed against the minimal privacy interest of the arrestees is the government’s “paramount interest in preserving the safety of public highways.”

See Birchfield v. North Dakota (U.S. 2016 / p. 278) (reasoning that the while the testing requires the insertion of a mouthpiece connected to a machine into the individual’s mouth, “there is nothing painful or strange about this requirement” NOR do people have “any possessory interest in or any emotional attachment to any of the air in their lungs,” and doesn’t subject the suspect to enhanced embarrassment inherit in an arrest.)

Question 29

May a legislature constitutionally authorize police to take a person into custody for a petty offense, such as a minor traffic violation that carries only a small fine?

Answer 29

YES. SCOTUS has traditionally recognized that a responsible 4th Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review.

See Atwater v. City of Lago Vista (U.S. 2001 / p. 285)

Question 30

Does the knock and announce rule apply to ARREST warrants?

Answer 30

NO — only search warrants.

Question 31

Can a habeus corpus case be reviewed by the Supreme Court if it was adjudicated on the merits by a STATE COURT?

Answer 31

NO

Question 32

What did the Belton court hold w/ regards to automobile searches? What about Thornton?

What ultimately became the modern rule in Gant?

Answer 32

In Belton — SCOTUS held that when a police officer has made a lawful arrest of the occupant of an automobile, he may (as a contemporaneous incident of that arrest) search the passenger compartment of that automobile and the contents of any containers within, whether open or closed.

In Thornton — Defendant argued that Belton was limited to situations where the officer initiated contact w/ the arrestee while he was still an occupant of the car. SCOTUS disagreed and held that the Belton rule applies “so long as the arrestee is the sort of ‘recent occupant’ of a vehicle such as [defendant] was here.”

In Gant — SCOTUS held that police may search a vehicle incident to a recent occupant’s arrest ONLY IF the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense arrest. When those justifications are absent, police need a search warrant for the car.

Question 33

What is an exception to SCOTUS following stare decisis?

Answer 33

Stare decisis is “essential to the respect accorded to the judgment of the Court and to the stability of the law,” but it does not compel the Court to follow a past decision when its rationale no longer withstands “careful analysis.”

NOTE: For the Court to change a well-established legal precedent—where there has been considerable reliance on the legal rule in question—bear a heavy burden.

Question 34

Do a police officer’s SUBJECTIVE intentions play any role in the probable cause Fourth Amendment analysis?

Answer 34

NO. In Whren, SCOTUS said: the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of the law is the Equal Protection Clause, not the Fourth Amendment. SUBJECTIVE INTENTIONS PLAY NO ROLE in the ordinary, probable cause Fourth Amendment analysis.

Question 35

What is the automobile exception under Carrol / Chambers v. Maroney?

How did SCOTUS expand the rule in Carney?

Answer 35

Carrol holds a search warrant UNNECESSARY for an automobile stopped on the highway where there is probable cause to believe that the car contains articles that the officers are entitled to seize; the car is moveable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.

Chambers v. Maroney holds that if Carrol applies on the open highway, it still applies at least a few hours after defendant is arrested.

Carney affirms the principle that a person has a significantly lower reasonable expectation of privacy in a vehicle than a home and held that the automobile exception applies to mobile homes as well as vehicles. This is because it is “readily mobile,” mobile homes are licensed to operate on public streets/get serviced in public places and is subject to extensive regulation and inspection. Finally, because an objective observer would conclude that the RV/mobile home was not used as a residence but as a vehicle.

Question 36

What did the Chadwick court hold w/ regards to the automobile exception?

Hint: Luggage

Answer 36

Warrantless searches of LUGGAGE or other property seized at the time of arrest CANNOT be justified as incident to that arrest if the the search is REMOTE in time or place from the arrest or NO EXIGENCY exists. Once police have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize the weapon or destroy the evidence, a search of that property is no longer incident of the arrest.

Question 37

How did the Acevedo court interpret the Carrol (automobile exception rule)?

Answer 37

Acevedo interpreted Carrol as providing one rule to govern all automobile searches: the police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.

Here, the police had probable cause to believe that the paper bag in the car trunk contained marijuana. That probable cause now allows a warrantless search of the paper bag. The record revealed that police did not have probable cause to believe that contraband was hidden in any other part of the car and a search of the whole car would have been without probable cause and unreasonable under the Fourth Amendment.

Question 38

What are the requirements of the PLAIN VIEW exception to the 4th Amendment search warrant requirement?

What effect did Horton have on the doctrine / Coolidge requirements?

Answer 38

First, the item must be in PLAIN VIEW and its incriminating character must be IMMEDIATELY APPARENT. Second, the officer must be LAWFULLY LOCATED in a place from which the object can be plainly seen and the officer must have a LAWFUL RIGHT of ACCESS to the object itself.

Horton (p. 344) held that even though INADVERTENCE is a characteristic of most plain view seizures, it is NOT a necessary condition for the plain view doctrine to justify a warrantless search.

Question 39

Is REASONABLE SUSPICION enough to invoke the PLAIN VIEW doctrine?

Answer 39

NO — probable cause is always required.

Hicks (p. 348): Officer’s recording of the serial numbers of suspected stolen stereo equipment was NOT a search or seizure. However, Officer’s moving of the equipment did constitute a “search” separate and apart from the search for the shooter, victims, and weapons that was the lawful objective of his entry into the apartment.

By taking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, DID PRODUCE a NEW INVASION of respondent’s privacy UNJUSTIFIED by the exigent circumstances that validated the entry. Since Officer only had reasonable suspicion regarding the equipment and NOT probable cause, the search was UNREASONABLE under the 4th Amendment.

Question 40

What is the PLAIN TOUCH doctrine?

Answer 40

If a police officer lawfully pats down a suspect’s outer clothing for weapons 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.

Question 41

What are the requirements for CONSENT (search warrant exception)?

Answer 41

Only when the subject of a search is NOT in custody and the State attempts to justify a search via consent, the 4th and 14th Amendments require that the consent was VOLUNTARILY GIVEN, and NOT the result of duress or coercion, express or implied. See Schneckloth v. Bustamonte (p. 353).

NOTE: Voluntariness is a question of fact to be determined from the totality of circumstances. The suspect’s knowledge of a right to refuse is a factor to consider, but the prosecution is NOT required to demonstrate such knowledge to demonstrate voluntary consent.

Question 42

A. Is a warrantless entry and search of the premises valid when police obtain the voluntary consent of an occupant who shares authority over the area in common with a co-occupant?

B. Is such an evidentiary seizure likewise lawful with the permission of one occupant when the other occupant is present at the scene and expressly refuses to consent?

Answer 42

A. YES. See Matlock (“the consent of one who possesses common authority over premises or effects is valid as against the ABSENT, non-consenting person with whom that authority is shared.”)

B. NO. See Randolph (“a warrantless search of a shared dwelling for evidence over the express refusal of consent by a PHYSICALLY PRESENT resident CANNOT be justified as reasonable as to him on the basis of consent given to the police by another resident.”)

P. 367–68

Question 43

What is the standard for police determining whether an occupant of a residence had AUTHORITY over the premises?

Answer 43

Would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises? If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is invalid.

See Rodriguez (p. 375)

Question 44

Is a motorcycle part of the curtilege?

Answer 44

YES. See Collins.

Question 45

What was landmark holding for searches & seizures under Terry v. Ohio?

Answer 45

Where a police officer OBSERVES UNUSUAL CONDUCT which leads him to REASONABLY CONCLUDE in light of his experiences that CRIMINAL ACTIVITY may be afoot and that persons with whom he is dealing may be ARMED & PRESENTLY DANGEROUS, where in the course of investigating this behavior he IDENTIFIES HIMSELF as a policeman and makes REASONABLE INQUIRIES, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled to 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. Such a search is REASONABLE under the 4th Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

NOTE: It doesn’t have to be reasonable suspicion of a particular crime, just any type of crime in general. Also a Terry stop is still a seizure (bc the suspect is not free to leave) but it is not an arrest.

Question 46

What is Thomas’ ingenious argument for scope of consent to search a luggage, where there is a sealed jar of “green tomatoes” and police hear rattling when they shake the jar?

Answer 46

The argument is that there was consent to search the luggage but police cannot DESTROY containers when searching luggages or cars. So opening the sealed container would have “destroyed the tomatoes” if officers opened it and it was actually tomatoes.

Question 47

If the defendant was taken into custody (not told he was under arrest but would have been physically restrained if he tried to leave), driven to police headquarters in a police car and placed in an interrogation room, and questioned after being given Miranda warnings. Is this a seizure under the 4th Amendment?

Answer 47

YES. See Dunaway on p. 408 (“Rochester police violated the 4th and 14th Amendments when, without probable cause, they seized petitioner and transported him to the police station for interrogation).

NOTE: The application of the 4th Amendment’s requirement of probable cause does NOT depend on whether an intrusion like in Dunaway is termed an “arrest” under state law.

Question 48

When is a person “seized” under the 4th Amendment?

Answer 48

A person is “seized” only when, by means of PHYSICAL FORCE or SHOW OF AUTHORITY, his freedom of movement is restrained. See Mendenhall on p. 415 (“We conclude that a person is ‘seized’ within the meaning of the 4th Amendment only if, in view of all of the circumstances surrounding the incident, a REASONABLE PERSON would have believed he was not free to leave.” See Mendenhall on p. 417

NOTE: Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of weapon by an officer, some physical touching of the person, or use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

Question 49

If police yell “stop! Police!” To a fleeing suspect, is that an “arrest” under the 4th Amendment?

Answer 49

NO — An arrest requires either PHYSICAL FORCE or, where that is absent, SUBMISSION to the assertion of authority.

See Hodari D on p. 426 (“Assuming that the officer’s pursuit constituted a ‘show of authority’ enjoining Hodari to halt, since Hodari did not comply with that injunction he was NOT SEIZED until he was TACKLED.”)

NOTE: The cocaine Hodari abandoned while he was running away from police here was not the fruit of a seizure, and his motion to exclude evidence of it was properly denied.

Question 50

In what way is “reasonable suspicion” a less demanding standard than probable cause?

Answer 50

Reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. See White on p. 431; see also Gates.

NOTE: For informant tips, both factors—QUANTITY and QUALITY—are considered in the “totality of the circumstances”—the whole picture that must be taken into account whether there is reasonable suspicion.

Question 51

How has SCOTUS defined PROBABLE CAUSE?

Answer 51

“A fair probability that contraband or evidence of a crime will be found.” See White on p. 431

Question 52

What are relevant factors of determining reasonable suspicion based on an anonymous tip?

Answer 52

An informant’s (a) veracity; (b) reliability; and (c) basis of knowledge are highly relevant in determining the value of his report in the “totality of the circumstances” test. See White on p. 431; see also Gates.

NOTE: In White, what was important was the caller’s ability to predict respondent’s FUTURE BEHAVIOR because it demonstrated inside information—a special familiarity with respondent’s affairs… Because only a small number of ppl are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person to access to such information likely also has access to reliable information about the person’s illegal activities.

Question 53

Does a suspect running away from police provide valid grounds for reasonable suspicion?

Illinois v. Wardlow (U.S. 2000)

Answer 53

YES — nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong flight—wherever it occurs—is the consummate act of evasion: it not necessarily indicative of wrongdoing, but it is certainly suggestive of such.

See Wardlow on p. 445 (“The determination of reasonable suspicion must be based on common sense judgments and inferences about human behavior.”)

Question 54

When an officer (without reasonable suspicion or probable cause) approaches an individual, does the individual have a right to ignore the police and go about his business?

Wardlow citing Florida v. Royer (U.S. 1983)

Answer 54

YES — But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature is not “going about one’s business.”

See Wardlow on p. 445, Royer on p. 411 Note 3

Question 55

What is a PROTECTIVE SWEEP?

Answer 55

A quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.

Question 56

What level of justification is required by the 4th and 14th Amendments before police officers, while effecting the arrest of a suspect in his home pursuant to an arrest warrant, may conduct a warrantless protective sweep?

Maryland v. Buie (U.S. 1990) on p. 452

Answer 56

As an incident to arrest, officers may, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. There must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.

NOTE: The rationale is to protect police officers in places they are unfamiliar with and could be easily ambushed. Such a protective sweep does not justify a full search of the premises—they may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.

Question 57

What is the SCOTUS test for determining the REASONABLENESS of a 4th Amendment search or seizure?

Buie (citing Terry) on p. 451

Answer 57

Balance the intrusion on the individual’s 4th Amendment interests against its promotion of legitimate governmental interests. Under this test, a search of a home or office is generally not reasonable without a warrant issued on probable cause. There are other contexts, however, where the PUBLIC INTEREST is such that neither a warrant nor probable cause are required.

NOTE: In Terry, SCOTUS stated there is no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails. In Terry, SCOTUS was concerned with the immediate interest of police in taking steps to assure himself that the persons with whom he was dealing with were not armed with, or able to gain immediate control of a weapon. In Buie, there was an analogous interest in officers making an arrest in the home, where others who could attack them may be present.

Question 58

When does a search or seizure fall into the SPECIAL NEEDS doctrine category?

Answer 58

A search or seizure falls into the SPECIAL NEEDS category when a perceived need, BEYOND THE NORMAL NEED for criminal law enforcement, makes the warrant and/or probable cause requirements of the 4th Amendment impracticable or irrelevant.

NOTE: In special needs circumstances, the Court evaluates the governmental activity by applying the reasonableness standard.

Question 59

What is the EXCLUSIONARY RULE? See Mapp v. Ohio on p. 79; Weeks v. United States

Answer 59

All evidence obtained by searches and seizures in violation of the Constitution is inadmissible in a federal court and a state court prosecutor’s case-in-chief during trial.

NOTE: The exclusionary rule DOES NOT APPLY in grand jury proceedings, fed/state civil proceedings, and sometimes pre-trial preliminary hearings, after the guilt phase of a trial during sentencing, and probation and parole revocation hearings.

ALSO a prosecutor may impeach a defendant’s testimony by introducing evidence previously excluded on 4th Amendment grounds. See Walder v. U.S. on p. 512 (U.S. 1954) (holding that a defendant cannot take advantage of a court’s exclusion of narcotics found in his possession to commit perjury by testifying on direct examination that he has never possessed narcotics.)

Question 60

What is the “fruit of the poisonous tree” rule? See Walder v. U.S. (U.S. 1954)

P. 514

Answer 60

The Government CANNOT violate the 4th Amendment and use the fruits of such unlawful conduct to secure a conviction. Nor can the Gov make indirect use of such evidence for its case, or support a conviction on evidence obtained through leads from the unlawfully obtained evidence. Rationale: they encourage the kind of society that is obnoxious to free men.

NOTE: In other words, if the police seize item A in violation of the 4th Amendment, they are also barred from introducing item B at Citizen’s criminal trial if B was obtained as a result of the unconstitutional seizure of item A.

Question 61

How do you analyze a fruit of the poisonous tree case?

P. 515

Answer 61

STEP 1: Identify the “tree” (constitutional violation) and the “fruit” (evidence the Gov seeks to introduce)

STEP 2: Determine whether the “fruit” comes from the “tree” (is there a causal link?)

STEP 3: If the fruit DID come from poisonous tree, identify any facts that may justify the conclusion that the fruit no longer is poisoned (“attenuation” or “dissipation” doctrine)

Question 62

What is the INDEPENDENT SOURCE doctrine? See Silverthorne (U.S. 1988); Murray (U.S. 1988)

Pp. 513, 516

Answer 62

Where an unlawful entry has given investigators knowledge of facts x and y, but fact z has been learned by other means, fact z is admissible because it derived from an “independent source.” See Segura (U.S. 1984). The later, lawful seizure must be a “genuinely independent” source of the information and tangible evidence at issue from the earlier, tainted one. See Murray.

NOTE: The doctrine applies to evidence obtained for the first time during an independent, lawful search. But Murray illustrates that it also applies where police unlawfully enter a dwelling and make a discovery of criminal activity—THEN, without touching any of the evidence or conducting a search, police get a valid search warrant and THEN lawfully execute the search warrant at the dwelling.

Question 63

What is the INEVITABLE DISCOVERY doctrine? See Nix v. Williams (U.S. 1984)

Pp. 520–21

Answer 63

If the prosecution can establish that the information ultimately or inevitably would have been discovered by lawful means—e.g., a volunteer search team w/in 2.5 miles of a murder victim’s body—the deterrence rationale has so little basis that the evidence should be admissible.

NOTE: Like the independent source doctrine, the gov has the burden to prove their inevitable discovery claim by a preponderance of the evidence.

Question 64

Does the 4th Amendment protect VERBAL statements by a defendant during an unlawful search or seizure? See Wong Sun

P. 524–25

Answer 64

YES. Similarly, testimony regarding matters observed during an unlawful invasion have been excluded in order to enforce basic constitutional policies. Thus, verbal evidence which derives so immediately from an unlawful entry and unauthorized arrest is no less the “fruit” of official illegality than tangible fruits.

NOTE: In Wong Sun, this is how Toy was able to exclude his verbal statements that led them to Yee’s narcotics, AND exclude using Yee’s narcotics in the case against him. However, Wong Sun got the OPPOSITE result—he had been released after lawful arraignment AND THEN RETURNED SEVERAL DAYS LATER to the police station to make an incriminating statement. Thus the connection between the arrest the statement had “become so attenuated as to dissipate the taint.”

Question 65

What are the four factors SCOTUS and lower courts look at when determining whether the connection between the 4th Amendment violation and the fruit has become so attenuated as to dissipate the taint? See Brown v. Ill. (U.S. 1975)

P. 526

Answer 65

1. The length of time that has elapsed between the initial illegality and the seizure of the fruit in question
2. The flagrancy of the initial misconduct (bad faith violations—involve more poison—take longer to dissipate)
3. The existence or absence of intervening causes of the seizure of the fruit
4. The presence or absence of an act of free will by the defendant resulting in the seizure of the fruit

NOTE: SCOTUS rejected a bright-line rule that police giving Miranda warnings automatically untaint subsequent confessions. Instead, the issue is resolved like other factual scenarios—on a case-by-case basis. In Brown, the statement came less than 2 hours after the illegal arrest and there was no intervening act of significance. The unlawful arrest also “had a quality of purposefulness” in that the officer’s knew they were acting in violation of the 4th Amendment.

Question 66

Does the exclusionary rule distinguish verbal evidence and the existence of a witness who later provides verbal evidence? See Ceccolini (U.S. 1978)

PP. 526–27

Answer 66

YES. In Ceccolini, the police unlawfully seized info that led them to a witness to a crime perpetuated by Ceccolini. Later, the witness agreed to testify against Ceccolini. The Supreme Court held that despite the road to the testimony from the officer’s unconstitutional search was straight and interrupted, the testimony was ADMISSIBLE.

RATIONALE 1: The greater the willingness of the witness to freely testify, the greater the likelihood that he will be discovered by legal means and, concomitantly, the smaller the incentive to conduct an illegal search to discover the witness.

RATIONALE 2: Such exclusion of testimony would perpetually disable a witness from testifying about relevant and material facts, regardless of how unrelated such testimony might be to the purpose of the originally illegal search or the evidence discovered thereby.

Question 67

If the initial stop of a defendant is unconstitutional (lacks reasonable suspicion) but the stop results in the police finding a valid outstanding arrest warrant, is contraband subsequently found on the defendant admissible or inadmissible as a fruit of the initial illegality? See Utah v. Strieff (U.S. 2016)

P. 528

Answer 67

The contraband is ADMISSIBLE. In Strieff, the officer’s discovery of the valid arrest warrant ATTENUATED THE CONNECTION between the unlawful stop and the evidence seized incident to arrest.

TEMPORAL PROX: Favored defendant bc the discovery happened shortly after the unlawful seizure.

INTERVENING CIRCUMSTANCES: Heavily favored the State, bc the warrant was valid, predated the officer’s investigation and was entirely unconnected from the stop. Once discovered, the warrant obligated the officer to arrest Strieff.

PURPOSE & FLAGRANCY: Strongly favored the State bc the officer was “negligent at most” (he demanded ID)

The problem: there is little to deter the police from stopping you randomly and demanding ID

Question 68

When are government officials (including police) entitled to IMMUNITY? See White v. Pauly (U.S. 2017)

P. 555

Answer 68

Government officials (including police) entitled to IMMUNITY if: an official’s conduct DOES NOT violate clearly established statutory or constitutional rights of which a reasonable person would have known. A case directly on point is not required, but for a right to be clearly established, existing precedent must have placed the statutory or constitutional question BEYOND DEBATE. In other words, immunity protects all but the plainly incompetent or those who KNOWINGLY VIOLATE the law.

Question 69

Is the exclusionary rule an INDIVIDUAL right? What is its purpose and requirements? See Herring (U.S. 2009)

Pp. 558–59

Answer 69

NO. The exclusionary rule is not an individual right and APPLIES ONLY where it “results in APPRECIABLE DETERRENCE.” It serves to deter DELIBERATE, RECKLESS, OR GROSSLY NEGLIGENT conduct, or in some circumstances RECURRING or SYSTEMATIC NEGLIGENCE. Applying the rule is always the court’s last resort.

REQ 1: The benefits of deterrence must outweigh the costs. The principal cost of applying the rule is letting guilty and possibly dangerous defendants go free—something that offends the basic concepts of the criminal justice system. The rule’s costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging its application.

REQ 2: To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.

Question 70

What cases form the EXCLUSIONARY rule?

Answer 70

1. Weeks — Broke in to defendant’s home and confiscated evidence without a warrant or sworn/particularized info.
2. Mapp — Extended the exclusionary rule to the states. Like Weeks, involved intentional unconstitutional conduct.
3. Leon — When police act under an invalid warrant (lack of prob cause), EX rule does NOT apply if the police acted “in objectively reasonable reliance on the subsequently invalidated search warrant.”
4. Sheppard — EX rule does NOT apply when a warrant was invalid because a judge forgot to make “clerical corrections” to it.
5. Krull — EX rule does NOT apply to warrantless ADMINISTRATIVE searches performed in good-faith reliance on a statute later declared unconstitutional.
6. Evans — Good faith rule applies to police who reasonably relied on mistaken info in the court’s database that an arrest warrant was outstanding.
7. Herring — The deterrent effect of suppression must be substantial and outweigh any harm to the justice system. Therefore, when police mistakes are the result of negligence (failure to maintain records in a database) rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does NOT “pay its way.”
8. Davis — When police conduct a search in objectively reasonable reliance on binding appellate precedent, the EX rule does NOT apply.

Question 71

What is the basic line of insight from the LEON line of cases for the exclusionary rule? See Davis (U.S. 2011)

P. 565

Answer 71

The cost-benefit analysis in exclusion cases focuses on the “flagrancy of police misconduct” at issue. The basic insight is that the deterrence benefits of exclusion vary with the amount of culpability of the law enforcement conduct at issue. When the police exhibit DELIBERATE or RECKLESS or GROSSLY NEGLIGENT disregard for 4th Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs to the justice system. But when police act in “objectively reasonable good-faith belief” that their conduct is lawful, or when their conduct involves only simply “isolated” negligence, the deterrence rationale loses much of its force and exclusion cannot pave the way.

Question 72

A seizure that is justified SOLELY by the interest in issuing a WARNING TICKET can become UNLAWFUL if…

See Illinois v. Caballes (U.S. 2005); Rodriguez v. U.S. (U.S. 2015) — p. 406

Answer 72

A seizure that is justified SOLELY by the interest in issuing a WARNING TICKET can become UNLAWFUL if it is PROLONGED beyond the time REASONABLY REQUIRED to complete that mission.

RODRIGUEZ: After the officer issued a traffic warning ticket, even though the officer lacked reasonable suspicion to suspect the car contained narcotics, the officer ordered the occupants out of the car, and EIGHT mins later, a dog sniffed the car and indicated the presence of drugs.

NOTE: An officer can earn bonus time to pursue an unrelated criminal investigation, but the reasonableness of a seizure depends on what the police do. The critical question is NOT whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff PROLONGS, i.e. adds time, to—the stop.

Question 73

Whether a confession is sufficiently free and voluntary to be competent testimony is a matter of… to be decided by the…

See Hector (A Slave) v. State (Mo. 1829), p. 574

Answer 73

Whether a confession is sufficiently free and voluntary to be competent testimony is a matter of LAW to be decided by the COURT.

NOTE: Hector was “under the lash” to get a confession “the greatest part of the night.”

Question 74

The State is free to regulate the procedure of its courts in accordance with its own conceptions of policy, unless in doing so it…

See Brown v. Mississippi (U.S. 1936) p. 16

Answer 74

The State is free to regulate the procedure of its courts in accordance with its own conceptions of policy, unless in doing so it “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

NOTE: The State may abolish trial by jury. It may dispense with indictment by a grand jury and substitute complaint or information. BUT THE FREEDOM OF A STATE IN ESTABLISHING ITS POLICY IS THE FREEDOM OF CONSTITUTIONAL GOVERNMENT AND IS LIMITED BY THE REQUIREMENT OF DUE PROCESS.

Question 75

Does the State have the power to torture defendants to get confessions?

See Brown v. Mississippi (U.S. 1936) p. 16

Answer 75

NO. The DP Clause requires that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.

NOTE: SCOTUS stated in Brown that torture is a “wrong so fundamental that it made the whole proceeding a mere pretense of a trial and rendered the conviction and sentence wholly void.

Question 76

In order to declare a denial of DP in a criminal trial, what must the court find? See Lisbena v. Cal. (U.S. 1941) p. 579

Answer 76

In order to declare a denial of DP in a criminal trial, the court must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial. Such unfairness exists when a coerced confession is used as a means of obtaining a verdict of guilt.

NOTE: Where a prisoner, held incommunicado, is subjected to questioning by officers for long periods, and deprived of the advice of counsel, the court shall scrutinize the record with care to determine whether, by the use of confession, he is deprived of liberty or life through tyrannical or oppressive means.

Question 77

What are the two fundamental interests of society balanced for 14th Amendment confession cases? See Spano v. NY (U.S. 1959) p. 589

Answer 77

Its interest in prompt and efficient law enforcement and its interest in preventing the rights of its individual members from being abridged by unconstitutional methods of law enforcement.

Question 78

Why did the Spano v. NY court conclude that the petitioner’s will (when giving his confession) was overborne by official pressure, fatigue and sympathy falsely aroused?

P. 593

Answer 78

A grand jury had already found sufficient cause to require petitioner to face trial on a charge of first-degree murder, and the police had an eyewitness to the shooting. The police were not therefore merely trying to solve a crime, or even to absolve a suspect. They were rather concerned primarily with securing a statement from defendant on which they convict him. The undeviating intent of the officers to extract a confession from petitioner is therefore patent. When such an intent is shown, SCOTUS has held that the confession obtained may be examined with the most careful scrutiny, and has reversed a conviction on facts less compelling than these.

NOTE: J. Steward concurred, stating that the absence of counsel when this confession was elicited (after multiple rejections of petitioner’s request to speak with his attorney) was alone enough to render it inadmissible under the 14th Amendment.

Question 79

Why was Fulminate’s confession (while he was a prisoner) held to be coerced in Arizona v. Fulminate (U.S. 1991)?

P. 597

Answer 79

Because Fulminate was an alleged child murderer, he was in danger of physical harm from other inmates. Sarivola (another prisoner), using his knowledge of the threats, offered to protect Fulminate in exchange for a confession to the child’s murder, and in response to Sarivola’s offer of protection, Fulminate confessed.

NOTE: The Arizona Supreme Court used the totality of the circumstances test to reach their conclusion that Fulminate’s confession was coerced. SCOTUS affirmed.