Criminal Procedure Outline Professor Schaffer Fall 2004 I. Introduction 3 II. Search & Seizure 3

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Criminal Procedure Outline

Professor Schaffer

Fall 2004



I. Introduction 3

II. Search & Seizure 3

A. Introduction to the Fourth Amendment 3

B. What is a Search? 3

C. The Tension Between the Reasonableness and Warrant Clauses 4

D. Demonstrating Probable Cause 5

E. Probable Cause, Specificity, and Reasonableness 6

F. Executing the Warrant—The Screening Magistrate 7

G. Arrests & Material Witnesses 7

H. Stop and Frisk 9

1. Defining a Stop: The Line between a Stop and an Encounter 10

2. Reasonable Suspicion 11

3. Limited Searches for Police Protection under the Terry Doctrine 12

4. Brief and limited Detentions: The Line between “Stop” and “Arrest” 12

I. Search Incident to Arrest; Pretextual Stops and Arrests; Plain View Seizures 14



1. Search Incident to Arrest 14

2. Pretextual Stops and Arrests 15

3. Plain View Seizures 15

J. Automobiles and Other Movable Objects: Exceptions to the Warrant Requirement 16

K. Exigent Circumstances 17

L. Administrative Searches 18

M. Consent Searches 20

N. Wiretapping, Eavesdropping, etc. 22


III. The Exclusionary Rule 23

A. Fruits of an Illegal Search 24

B. Independent Source and Inevitable Discovery Doctrines 25

IV. Self-Incrimination and Confessions 26

A. The Fifth Amendment and Self-Incrimination 26



1. Policies 26

2. What is Compulsion 27

3. To Whom Does the Privilege Belong? What is Protected? 27

4. Procedural Aspect of Self-Incrimination 29

B. Confessions and Due Process 29

C. Confessions under the Fifth Amendment: Miranda and Its Impact 30

1. Applying Miranda 31

2. Waiver of Miranda Rights 33

D. Confessions under the Sixth Amendment 35



1. Deliberate Elicitation 35

2. Waiver 36

3. Fruits of a Sixth Amendment Violation 37

VI. The Grand Jury 37

A. Evidence before the Grand Jury 37

B. Powers of Investigation 38

VII. The Right to Effective Assistance of Counsel 38

VIII. Discovery 41

A. Specifics of Defense Discovery 41

B. Prosecutor’s Constitutional Duty to Disclose 41


IX. Guilty Pleas and Bargaining: Requirements for a Valid Plea 42

X. Constitutionally Based Proof Requirements 44

A. Proof Beyond a Reasonable Doubt 44

B. Scope of the Reasonable Doubt Requirement 44

C. Proof of Alternative Means of Committing a Single Crime 45



XI. Trial by Jury 45

A. Requisite Features of the Jury 45

B. Jury Selection and Composition 46

C. Peremptory Challenges 47

D. Preserving the Integrity of Deliberations 48

E. The Trial Judge and the Right to Jury Trial 48



I. Introduction
II. Search & Seizure

A. Introduction to the Fourth Amendment



  • Fourth Amendment:

    • reasonableness clause: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated,”

    • warrants clause: “and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to searched, and the person or things to be seized.”

B. What is a Search?



  • definition: a search or seizure is an action by the state that violates an individuals reasonable expectation of privacy (REOP)
    • two-part test attributed to Harlan, J., concurring in Katz (41):


      • person must have exhibited an actual (subjective) expectation of privacy

      • society must recognize that expectation as reasonable

    • ∆ had REOP

      • content of conversation conducted in public telephone booth with closing door (as opposed to simply being observed having a conversation)—∆ sought to exclude “the uninvited ear” not the “intruding eye” (Katz, 1967—38)

      • agent’s manipulation of ∆’s luggage (placed in space) far exceeded the casual contact ∆ could have expected from other passengers (Bond, 2000—58)

    • no REOP where ∆ exposes something to the public (i.e., public access = no REOP)

      • consensual electronic surveillance

        • US v. White (US 1971 – 50): ∆ had no REOP in conversations with government informant who was wearing a concealed radio transmitter

          • “one contemplating illegal activities must realize and risk that his companions may be reporting to the police”

        • US v. Gonzalez (9th Cir 2003 – 51): ∆ had no REOP in behavior caught on hidden camera installed (with hospital’s permission) in hospital mailroom; mailroom was large, “quasi-public” space, with large windows allowing those outside to see what was going on within

      • financial records

        • no REOP in bank records—they are made accessible to the bank, so no reasonable expectation that they would not be revealed to the government

      • pen registers

        • no REOP in numbers dialed from home phone—no legitimate expectation of privacy in information he voluntarily turns over to third parties (e.g., the phone company)

      • trash


        • no REOP in contents of trash bags left on curb for garbage collector—readily accessible to the general public (California v. Greenwood, 1988—54)

      • drug detection

        • canine sniff is not a search because it does not expose non-contraband items that would otherwise remain hidden from public view and there is no REOP in hidden possession of contraband (Place, 1983—61)

        • chemical test that exposes whether a substance is an illegal narcotic is not a search (Jacobsen, 1984—63)

        • urine test is a search because it can reveal innocent secret information and providing a sample is intrusive and embarrassing

      • aerial surveillance

        • aerial surveillance of ∆’s fenced-in backyard is not a search because members of the public may lawfully observe ∆’s backyard from above (Ciriallo, 1986—56)

        • hovering over ∆’s property in helicopter is not a search because there is no law prohibiting such activity (Riley, 1989—57)

        • aerial surveillance using high powered camera is a search where ∆ maintained elaborate ground security and investigated low over-flights (Dow Chemical, 1986—56, 76)

      • electronic beepers

        • use of electronic beepers to track public movements is not a search (Knotts, 1983—72)

        • use of electronic beeper to determine whether something is in a private place (e.g., a home) is a search (Karo, 1983—72)
          • however, proper use of the beeper to track movement outside the house along with knowledge obtained by other lawful means is likely to be sufficient to get a warrant


      • new technologies

        • aiming uncommon (i.e. not widely in use among the public) high-tech devices at certain places (e.g. the home) is a search (Kyllo, 2001—65)

C. The Tension Between the Reasonableness and Warrant Clauses



  • warrant-less searches are presumably unreasonable unless there is an applicable assumption (i.e. the warrant clause takes precedent over the reasonableness clause) (Johnson, 1948—86)

  • Katz v. US: “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.”

    • however, this so-called per se rule is, according to Justice Scalia, “so riddled with exceptions that it is basically unrecognizable”

    • thus, one might say that courts have expressed a preference for warrants, but are willing to consider the circumstances of each particular case

  • justification for the warrant requirement

    • requires inferences to be drawn by a detached magistrate, rather than “the officer engaged in the often competitive enterprise of ferreting out crime” (Johnson, 1948—86)

    • two negative consequences of indiscriminate searches (Amsterdam – 88)

      • exposes people and their possessions to government interference without good reason

      • creates potential for executive officials to act despotically and capriciously

    • other justifications for primacy of the warrant requirement
      • antecedent warrant requirement prevents possibility of officers working backwards to justify actions ex post


      • advance written record also necessary to police specificity requirement

      • allows magistrate to reject warrant application if search is unreasonable under the circumstances

      • reduces public perception of unlawful police behavior

      • moreover, even though statistics suggest that the vast majority of warrant applications are granted, the mere necessity of filing an application may have a deterrent effect on unlawful searches and seizures (i.e. b/c police know they have to go to magistrate, they are more selective and careful about whether a search is truly reasonable)

D. Demonstrating Probable Cause



  • in order to issue a warrant, the magistrate must determine whether there is a fair probability that search will uncover evidence of wrongdoing

  • standard of review for magistrate’s decision to issue warrant:

    • deferential review: did the magistrate have a substantial basis for concluding that a search would uncover evidence of wrongdoing (Gates)

    • justifications

      • deferential review encourages police to obtain warrants (no warrant = no deference)

      • PC determinations are so fact-specific that de novo review would not really help guide lower courts and magistrates when deciding whether to issue a warrant

  • two tests

    • totality of the circumstances (Illinois v. Gates, 1983—99)

      • veracity and basis of knowledge are closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is probable cause to believe that contraband or evidence is located in a particular place
    • Spinelli v. US (US 1969 – 91): two part test for demonstrating PC


      • (1) basis of knowledge: warrant application must set forth the underlying circumstances necessary to enable the magistrate to judge the validity of the informer’s conclusion (i.e. how did the informant come by the reported information—personal observation, heard it from a friend, etc.)

      • (2) veracity: there must be some reason to believe that the informant’s report is true

        • one way of establishing veracity is by averring that the informant previously provided the police with truthful information

        • paid informants (money or to avoid/lessen prosecution) and anonymous informants are presumptively unreliable

          • however, corroboration of innocent details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted justifies reliance on accuracy of information provided (Gates)

          • see 109-10 for more examples

        • identified citizen informants: presumed reliable because their motivations (said to be “concern for society or for his own safety”) suggest little chance of fabrication

        • confession of co-participant also needs no corroboration

  • probability – connection to criminal activity

    • presence of cocaine in car created PC that all three occupants were engaged in illegal activity or in possession of illegal narcotics (Maryland v. Pringle, 2003—121)

      • occupants of a car “will often be engaged in a common enterprise”

    • Ybarra: warrant to search tavern and bartender did not extend to search (frisk) of patron
      • qualification: at least absent individualized suspicion (ie. it may have been reasonable to frisk Ybarra if there had been specific reason to suspect him)


    • Di Re: “inference that everyone on the scene of a crime is a party to it must disappear if the Government informer singles out the guilty person”

E. Probable Cause, Specificity, and Reasonableness



  • searches of third party premises

    • Zurcher v. Stanford Daily (US 1978 – 129): “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.”

  • specificity requirement

    • Groh v. Ramirez (US 2004 – S1): a search pursuant to warrant lacking particularity is tantamount to a warrant-less search; thus, it is presumptively unreasonable

    • function of specificity

      • limits discretion of executing officer (especially where she has no knowledge of underlying facts)

      • provides ex ante record of probable cause as to the location searched and items seized

      • prevents warrant from being used as a blank check

    • two types of specificity

      • specificity as to the suspected crime

      • specificity as to the particular fruits, instrumentalities, contraband, or evidence of that crime

        • mere evidence may be seized if the seizure is otherwise reasonable (Warden v. Hayden, US 1967—126)
          • one of the problems with this expansion of lawfully seize-able property is the difficulty inherent in determining whether something is evidence (and especially whether paper is evidence); thus, the police will end up going through much that is not, in fact, evidence in order to uncover the true evidence—leading to the problem of rummaging (see Andresen v. Maryland, US 1976 – 138)


        • if the warrant contains both particular and improperly general clauses, only those items seized under the later must be excluded at trial (most circuits)

    • specificity is (to some extent) dependent on:

      • the nature of the property to be seized

      • how much an officer should be expected to know about the property based on the investigation that led to PC

      • NOTE: inaccuracy does not necessarily mean a warrant lacked specificity; so long as the warrant was based on information uncovered by officer’s reasonable efforts

        • eg. Maryland v. Garrison (133): warrant indicated “third floor apartment” as place to be searched; in fact, there were two apartments on the third floor; however, officer had based warrant application on phone and utility records that appeared to indicate only one third floor apartment; officers first entered apartment of individual not suspected of illegal activity, wherein they found contraband leading to arrest and conviction

          • held: search was executed according to valid warrant (based on information available to police after reasonable investigation); therefore, evidence need not have been suppressed

      • NOTE: if PC to search exists with respect to both units of duplex, those units need not be specified individual; instead, a general warrant for the structure as a whole is sufficient (US v. Johnson, 134)

F. Executing the Warrant—The Screening Magistrate




G. Arrests & Material Witnesses



  • Arrests in Public
    • United States v. Watson (US 1976 – 168): arrest in public places without a warrant is reasonable if police have PC


      • no showing of exigent circumstances is necessary

      • NOTE: getting warrant is still advisable when practicable, because magistrate’s determination of PC gets deferential review; also, if suspect flees, warrant can be sent to other jurisdictions for officers there to execute

    • seriousness of crime is not a factor in determining whether arrest is reasonable

      • Atwater (US 2001 – 167): custodial arrest is always reasonable (ie. no warrant is required) if officer has probable cause to believe that a crime was committed (makes no difference what the crime or what the possible punishment)

      • justification:

        • too difficult to distinguish btw. arrest-able and non-arrest-able offenses

        • legislature has already made determination of reasonableness by criminalizing this behavior

        • NOTE: legislature can, of course, specifically provide that arrest is unwarranted

    • affect of arrest

      • arrest allows two “freebie” searches

        • search of the person incident to arrest; and,

        • search of interior of car (see Belton)

      • combined with Atwater, this creates the possibility that individual will be arrested for minor merely as pretext to conduct search

    • use of force

      • Tennessee v. Garner (US 1985 – 172): use of deadly force to arrest a suspect is only justified where there is PC to believe that suspect poses a significant threat of death or serious physical injury to the officer or others

      • factor to be considered in determining reasonableness of force used (Graham v. Connor, US 1989 – 172):

        • severity of crime
        • whether suspect poses an immediate threat to safety of officer or others


        • whether suspect is actively resisting arrest or attempting to evade arrest by fleeing

      • reasonableness does not require least intrusive degree of force; other factors (here: least injury to police and others) can be taken into account (Forrester v. City of San Diego, 9th Cir 1994 – 173)

  • Arrests in the Home

    • Payton v. New York (US 1980—182): absent exigent circumstances, an arrest warrant is required to enter an individual’s home in order to effect an arrest

      • officer must have reason to believe that suspect is in the dwelling

      • although search warrant would arguably be more protective (b/c it would require officer to establish before a neutral magistrate PC that suspect will be at home at a particular time), it is impractical

      • moreover, arrest warrant at least requires neutral magistrate to find PC to arrest (thus, officer is not permitted to enter the home solely of his own accord)

    • the line btw. the home and public place

      • doorway arrests (184): circuits are split as to whether a doorway arrest is or is not “in the home” (thus, requiring an arrest warrant)

        • those who hold it is not are faced with the following search incident to arrest problem: if suspect is arrested before the officer steps through the door, officer may enter the home to carry out a permissible SITA; if, however, the officer first enters the home and then makes the arrest, the arrest is unconstitutional under Payton (and any evidence found in the home is the product of an unlawful search)

    • arrests of third parties in the home
      • Steagald v. United States (US 1981—186): search of ∆’s house based on reasonable belief that third party suspect (for whom police had arrest warrant) was on the premises held unconstitutional


        • NOTE: this right only protects the homeowner, not the third party suspect arrested in another’s home (Underwood—9th Cir)

      • if, however, third party is a co-tenant or otherwise a resident, search is valid (on basis of arrest warrant for third party) (Litteral—9yh Cir; Lovelock—2d Cir)

        • father staying above garage while working on home (Pallais—7th Cir)

        • girlfriend, even though officer knew she had her own apartment (Risse—8th Cir)

    • standing to assert that arrest in third party’s home was unlawful

      • overnight guest has REOP in host’s home; thus, arrest warrant is required to make an arrest in that home (Minnesota v. Olson, US 1990—187)

      • however, two individuals arrested in third party’s home while there for several hours to cut cocaine did not have REOP; thus, arrest in the home without an arrest warrant was lawful (Minnesota v. Carter, US 1998—188)

      • important factors in determining whether there is a REOP in host’s home

        • length of stay

        • purpose of visit: social v. business

  • Material Witnesses

    • arrest of an individual as a material witness requires PC to believe that:

      • (1) person being subject to arrest is capable of providing material evidence

        • there is no definition of how strong the evidence must be – really only a nexus

        • in fact, it would be impossible to determine strength of evidence before interrogating the individual

      • and, (2) it would be impossible or impracticable to secure individual’s presence by subpoena
    • United States v. Awadallah (2d Cir 2003 – 190)


      • held: arrest and detention of grad jury witness is lawful due to procedural safeguards that prevent (or at least reduce opportunity for) abuse

        • witness cannot be held if testimony can be adequately secured by deposition

        • bail reform act (held to apply to material witness at grand jury stage): witness may obtain hearing on propriety of continued detention (ie. government must establish that no condition or combination of conditions can secure appearance at trial)

        • requirement of bi-weekly reports to the court justifying continued detention is sufficient to protect witness against unreasonably long detention

H. Stop and Frisk



  • Terry v. Ohio (US 1968 – 200): stop and frisk can be carried out on the basis of reasonable suspicion

    • Harlan, J., concurring: stop and frisk are separate events; the frisk must itself be predicated on a lawful stop; if it is, however, the right to frisk is immediate and automatic

    • pragmatic grounds for decision: alternative was either to ignore the stop and frisk (i.e. hold that it was not a Fourth Amendment event) or apply the PC standard; the latter course may well have led courts to water down the PC standard (in order to allow for what most would say is an important law enforcement technique)

    • frisk incident to lawful stop

      • officer lawfully stopped ∆ whom officer reasonably believed was casing store; because the officer was aware that robbers in the area often carried weapons, his reason for stopping ∆ served as predicate for the frisk (which itself was a reasonable action to protect the safety of the officer and others) (Terry)
      • officer had reasonable basis to stop ∆ whom informant told officer was carrying narcotics (Adams v. Williams, 1972—209)


        • analysis of tip

          • BK: informant had personal knowledge

          • veracity: officer had received truthful information from informant in the past

        • officer also acting reasonably by reaching into car and pulling gun (not visible) from ∆’s waistband b/c informant indicated that ∆ had a gun in his waistband

        • Brennan, dissent: this expands justification for Terry stop and frisk from violent crimes to possessory crimes

    • lawful traffic stop

      • officer may order driver to step out of the vehicle (Pennsylvania v. Mimms, 1977—211)

      • officer may also order passenger to get out (Maryland v. Wilson, 1997—214)

        • these are termed: de minimis further intrusions

      • officer may entry vehicle to remove papers in order to read VIN number if it is obstructed (usually visible from outside the car) (New York v. Class, 1986—216)

        • “VIN is a significant thread in the web of regulation of the automobile”


1. Defining a Stop: The Line between a Stop and an Encounter

  • a stop occurs when officers act in such way that a reasonable person would not believe that she was free to leave

    • no stop: agent looked at ticket and driver’s license; returned them; then asked woman to accompany him to office to answer questions; she agreed (Mendenhall, US 1980—217)

    • stop: where luggage, ticket and license were held by DEA agents, agents had effected a stop (Royer, US 1983—218)

      • initial request to speak with officers was not a stop
      • nor does identifying oneself as a police officer transform the event into a stop


    • no stop: placing armed agents at doors of factory did not constitute a seizure (Delgado, US 1984—221)

      • majority: wasn’t a seizure b/c people were likely to stay at work during normal work hours anyway

    • NOTE: the “feel free to leave” standard is not literal; very often (for many social reasons, etc.) people will not feel free to walk away from / refuse to respond to a law enforcement officer)

  • the way forward

    • Drayton, 225 at 227: in Bostick, Court rejected ∆’s argument that “no reasonable person would consent to a search of luggage containing drugs. The reasonable person test … is objective and ‘presupposes an innocent person.’”

    • United States v. Bostick (discussed in Drayton): the mere fact that ∆ did not feel free to leave the bus does not mean that the police seized him

    • alternate form of analysis

      • Cardozo, 223 at 224: court “must determine whether [the officers’] conduct indicated that they were interfering with [∆’s] liberty to such an extent that he was not free to leave. … the police officers’ conduct on the night in question would not have communicated to a reasonable person that the police were attempting to intrude upon ∆’s freedom of movement.”

  • refusal to submit to a non-physical show of force

    • a stop occurs with:

      • (1) the slightest application of physical force;

        • NOTE: seizure ends if suspect escapes and attempts to avoid seizure

      • or, (2) non-physical show of authority:

        • reasonable person must not feel free to leave; and
        • person must actually submit


          • US v. Hernandez, 9th Cir 1994 – 234

            • facts: suspecting illegal activity, officer approached ∆ and asked to speak with him; ∆ paused momentarily and looked at officer, then turned to climb gate; officer grabbed ∆, but ∆ broke free and ran; during course of pursuit, ∆ dropped a gun that was recovered by the police

            • attempting to flee (climbing gate) created reasonable suspicion, so grabbing ∆ was justified

            • however, ∆ argued that his initial hesitation before climbing fence constituted submission, and that officer did not have RS at that point; thus, everything that happened thereafter, including police acquisition of gun, was the fruit of an unlawful stop

            • held: briefly hesitating ≠ submission; no stop b/f officer grabbed ∆

        • NOTE: chasing suspect is not sufficient; free to leave test is necessary but not sufficient

    • California v. Hodari, US 1991—232: pursuit of suspect was not a seizure; thus, suppression of crack thrown away during pursuit (on theory that there was no legal cause for pursuit) was properly refused

2. Reasonable Suspicion

  • based upon the totality of the circumstances, “officers must have a particularized and objective basis for suspecting the … person stopped of criminal activity (Cortez, 1981—245)

    • RS is, of course, a lower standard than PC—it can be thought of as “possible cause”

    • individual determination of the weight of each factor relied on to establish RS is not a totality of the circumstances analysis (Arvizu, 2002—247)
  • if a stop is based on an anonymous tip, the officer must first significantly corroborate the information contained in the tip


    • nonetheless, BK and veracity are important considerations when determining weight to be accord informant’s tip;

    • corroboration of a predicted future action is significant corroboration (Alabama v. White, US 1990—239)

      • the ability to predict future behavior demonstrates “inside information—a special familiarity with respondent’s affairs;” thus, it is reasonable for police to believe that informant with access to information regarding individual’s itinerary is likely to have access to reliable information about individual’s illegal activities

    • corroboration of description of readily observable location and appearance is not significant corroboration (Florida v. J.L., 2000—241)

      • “accurate description of readily observable location and appearance … does not show that the tipster has knowledge of concealed criminal activity;”

  • stop can be justified by reasonable suspicion that suspect has already committed a crime (ie. retrospective rather than prospective use of stop) (US v. Hensley, US 1985—256)

  • race as a factor

    • cannot be the only factor (i.e. behavior cannot be suspicious solely because of race)

    • but it can be a factor in determining whether behavior is suspicious (see US v. Weaver, 8th Cir 1992—258: young black man stopped on suspicion on drug trafficking after disembarking plane from LA in Kansas City)

  • profiling

    • whether or not factors are set out in a profile makes no difference to determination of reasonable suspicion under the totality of the circumstances (the profile factors and any other relevant factors combined) (US v. Sokolow, US 1989—261)

  • flight


    • Illinois v. Wardlow, US 2000 – 263: unprovoked flight is always suggestive of wrongdoing; flight is different than a refusal to cooperate

  • Kennedy, Suspect Policy


3. Limited Searches for Police Protection under the Terry Doctrine

  • justification for frisks: reasonable apprehension of danger by officer

    • Minnesota v. Dickerson, US 1993—265: lawful frisk ends as soon as officer determines that suspect is unarmed

    • held unlawful

      • squeezing and prodding lump in suspects pocket after officer realized it wasn’t a weapon led officer to conclusion that object was crack—this further search held unlawful (Dickerson)

      • shaking box found in suspect’s pocket after having concluded that it could not possibly contain a weapon (Miles, 9th Cir 2001—265)

      • probing paper bag found inside suspect’s jacket after determining that bag did not contain a weapon (Schiavo, 1st Cir 2991—265)

    • held lawful

      • removing hard object (turned out to be stolen credit cards) from ∆’s sock—reasonable officer “could justifiably believed that the item was a weapon” (Swann, 4th Cir. 1998—270)

  • protective searches beyond the suspect’s person

    • Michigan v. Long, 1983—268: ∆ stopped outside of car; police looked into car with flashlight and saw hunting knife; they then searched car for weapons and found marijuana
      • held: looking into car with flashlight is not a 4A event; moreover, once officer saw the knife, reasonable apprehension of danger justified protective search of interior of car


      • upshot: frisks of places in proximity to persons stopped are permissible—of course, what qualifies as proximity remains unanswered

    • protective sweep (permits plain view seizure)

      • lawful sweep: Maryland v. Buie, 1990—271

        • ∆ was arrested at home on the basis of probable cause

        • police conducted a protective sweep of the home on basis of reasonable suspicion that ∆’s associates or other dangerous person might be hiding in the premises


4. Brief and limited Detentions: The Line between “Stop” and “Arrest”

  • analytically, it is only force over time that allows us to determine stop v. arrest

  • (a) forced movement to custodial area constitutes arrest (272)

    • Florida v. Royer: moving suspect from public part of airport terminal to the police room (a large closet with a desk and two chairs) constituted arrest—at least where retained suspects airline ticket and identification, and seized his luggage

  • (b) forced movement for identification purposes

    • some courts have found that moving the suspect a short distance to facilitate an eyewitness identification is not an arrest (see, e.g., People v. Hicks, NY 1986—274)

  • (c) permissible investigative techniques during Terry stop

    • request for identification (US v. Holzman, 9thCir; US v. Guzman, 10thCir—275)

      • Hiibel, supp.2: in at least certain instances, state statute may require individual to identify herself pursuant to lawful Terry stop
        • p7: seems that request for ID must be reasonably related to the circumstances justifying the stop


        • assuming that Terry stop is based on RS that individual committed a crime, when would it be unreasonable to demand ID (ie. not rationally related to the purpose of the stop)?

          • court actually says that determining ID is part of investigatory process

    • verification of information received (eg. vehicle registration check, license check, computer search for outstanding warrants)

    • canine sniff (if there is reasonable suspicion of drug possession—see US v. Bloomfield, 8thCir 1994—275)

  • (d) impermissible investigative techniques

    • search for evidence

  • (e) investigation of other crimes

    • no reasonable suspicion of another crime

      • US v. Salzano: investigation for drug offenses subsequent to traffic stop are impermissible absent reasonable suspicion that suspect is involved in drug activity

      • US v. Santiago: once computer check is complete and officer either issues citation or determines that no citation is necessary, continued detention absent reasonable suspicion is unlawful

      • US v. Millan-Diaz: stop on reasonable suspicion of transporting illegal aliens ended when no aliens were found in the vehicle; subsequent investigation (tapping door panels made dull thud; marijuana found inside) was, therefore, unlawful

    • reasonable suspicion
      • US v. Erwin, 6thCir 1998—276: investigation of drug activity held lawful where suspect stopped on suspicion of DWI: (1) appeared nervous; (2) attempted to leave; (3) used pay phone when cell phone was available; (4) appeared to have drug paraphernalia in car; (5) had lots of cash; (6) had no registration or proof of insurance; (7) had criminal record of drug violations; and (8) had out-of-place backseat cushion


    • consensual encounter after stop

      • Ohio v. Robinette, 1996—277: after stop for speeding and oral warning, officer asked ∆ if he had drugs or weapon; suspect said no; officer asked if he could search car; suspect consented; officer found drugs; held: lawful encounter and consensual search

  • (f) interrogations and fingerprinting

    • Dunaway v. New York, 1979—277: detention for custodial interrogation is arrest

  • (g) time limit on Terry stops

    • suspect can be detained for a reasonable amount of time

    • key inquiry: did police diligently (and reasonably) pursue investigation

      • officers can wait (eg. for drug dog, more information re. warrant, etc.) for at least some length of time if they have a reason for waiting for what they’re waiting for (eg. RS of drug possession; suspect fits general description in warrant; etc.)

  • (h) show of force

    • fact specific inquiry: has to be fairly egregious for courts to find that police exceeded necessary use of force (eg. Oliveira v. Mayer, 2dCir 1994)

I. Search Incident to Arrest; Pretextual Stops and Arrests; Plain View Seizures



1. Search Incident to Arrest

  • spatial limitations

    • Rabinowitz (discussed in Chimel and Thornton): upheld search of suspect’s place of business where officers reasonably believed that they would find evidence relating to suspected crimes

    • Chimel, 1969—294: limited search incident to arrest (SITA) to suspect’s “grab area” or area of immediate control (AIC)—cuts back significantly on Rabinowitz
      • search is justified by interest in:


        • removing weapons that might be used to resist arrest or effect escape

        • preventing concealment or destruction of evidence

  • arrests and automobiles

    • Belton: lawful arrest of individual in automobile allows search of entire passenger compartment

      • rational

        • state interests

          • officer safety—arrest is volatile situation; suspect may be able to reach weapons

          • prevent destruction of evidence

        • legal fiction (hypothesized generalization): passenger compartment is generally within suspect’s AIC

    • Thornton, 2004—sup8: lawful arrest of individual in close proximity to vehicle allows Belton search

      • majority: police should not lose Belton search simply because they took safety precautions

      • Scalia, concurring: there is no right to Chimel search—“Chimel … is an exception—justified by necessity—to a rule that would otherwise render the search unlawful”

        • in fact, he argues, if police left suspect unrestrained simply to manufacture necessity, one might argue that it was unreasonable for police to maintain unsafe situation

      • Scalia’s alternative justification for Belton

        • would allow search only where it is reasonable to believe that evidence relating to the crime for which suspect was arrested is likely to be found in car

        • rather than grounding Belton searches in fictional extension of Chimel, Scalia would look to Rabinowitz—allow SITA for evidence relevant to crime for which suspect was arrested were there was a reasonable belief that such evidence would be found

  • searches of person
    • US v. Robinson, 1973—303: held that SITA of person arrested is always lawful


      • prolonged contact with / exposure to arrested individual permits greater intrusion into individual’s privacy

      • Powell, concurring: arrest abates privacy interest; extinguishes REOP

    • Atwater, 2001—308: Fourth Amendment does not prohibit custodial arrest for minor offenses (in this case, misdemeanor seatbelt violation)

  • traffic citations in lieu of arrest

    • Knowles, 1998—322: Belton search is not lawful unless the suspect is actually arrested; issuing a citation in lieu of arrest (where statute would also permit arrest) does not carry with it a right to search the suspect’s automobile


2. Pretextual Stops and Arrests

  • Whren v. United States, US 1996—324: regardless of subjective belief that arrestees were involved in other crimes, custodial arrest is permissible whenever a reasonable officer could have arrested individuals for the arguably pretextual offense

    • ∆ had proposed that, in addition to probable cause, courts should be required to conclude that a reasonable officer would have made a custodial arrest in the same circumstances

    • Court rejects balancing need for traffic enforcement by plain-clothes officers in unmarked cars against privacy interests of motorists

  • pretext & profiling

    • this is issue is closely related to the profiling debate; along with Atwater, Whren means that police can arrest virtually anyone whenever they want if they think that a search might turn up contraband or other evidence

    • equal protection offers ∆s scant protection since:
      • (a) they would need to show disparate treatment and discriminatory intent in order to prevail; and,


      • (b) even if they prevail, they are most likely only eligible for monetary damages—ie. their conviction is not likely to be overturned (in fact, it’s unclear whether a conviction could ever be overturned due to EPC violation)


3. Plain View Seizures

  • necessary elements of a plain view seizure

    • right to be in a certain place (lawful access to the evidence)

    • probable cause to believe that the seized item is contraband, evidence of a crime, etc.

  • inadvertence is not a necessary condition of a legitimate “plain view” seizure (Horton v. California, 1990—334)

    • whether an officer fully expects to find an item, has a suspicion that such item may be found, or has no idea beforehand that she will find anything, that item can be lawfully seized if it is found in plain view during an otherwise lawful search

    • because the search is otherwise lawful, no unjustified intrusion on privacy has occurred; the officer already had a lawful right to search the place where the item was found

  • “plain view” is a strict bright-line exception to unlawful seizure doctrine

    • Arizona v. Hicks, 1987—338: movement of stereo equipment to view serial number where police did not have PC but only RS to believe that the equipment was stolen

    • refuses to allow cursory searches on less than PC

  • “plain touch”

    • Minnesota v. Dickerson, 1993—339: “if a police officer pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons”
      • but, the if the officer feels something but isn’t sure what it is (i.e. does not have PC to believe that it is contraband), he cannot investigate further

J. Automobiles and Other Movable Objects: Exceptions to the Warrant Requirement



  • no warrant requirement: police may search an automobile without a warrant, so long as they have PC to believe that it contains evidence of criminal activity (Carroll v. United States, 1925—340)

    • justifications:

      • not practicable to obtain a warrant b/c vehicle can be quickly moved out of locality or jurisdiction in which the warrant must be sought (Carroll)

        • NOTE: exigency (i.e. mobility) is judged as of moment of seizure (Chambers)

      • people have a diminished expectation of privacy (DEOP) in automobile (California v. Carney, 1985—346)

    • NOTE: does not do away with the need for PC, only with the need for a warrant

  • where it is reasonable for officers to seize a car for the time necessary to obtain a warrant, it is also reasonable to search the car without a warrant so long as PC exists (Chambers v. Maroney, US 1970—342)

    • Harlan, J., dissent: search without a warrant (interference with privacy interest) is worse than seizure without a warrant (interference with possessory interest);

      • persons who wish to avoid a search will prefer a brief loss of the use of their vehicle (where officer believes she has PC to believe contains evidence of criminal activity) while a magistrate considers justification for search, rather than an immediate search

      • moreover, those who have nothing to hide and do not want to be detained can simply consent to an immediate search

  • containers, cars, and containers in cars
    • mobility of footlocker justifies seizure, but (absent exigent circumstances) a warrant must be obtained prior to search (US v. Chawick, 1977—349)


      • REOP in luggage is higher than that in cars

      • NOTE: this is absolutely ridiculous—cars are no different from luggage; they’re both intended to move people or things from place to place

    • however, where a warrant-less search of a car is justified by PC, officers may also search containers found inside the car without first obtaining a warrant (US v. Ross, 1982—350)

      • if police have PC to search car, they can search the entire car and everything in it

    • indeed, a warrant-less search of a container located within a car is reasonable where there is PC to search either the car or the container (California v. Acevedo, US 1991—351)

      • overturns Arkansas v. Sanders, 1979—350, which held that where there is PC to search a container inside a car but no PC to search the car itself, warrant is required to search the container

      • majority appears to feel that review by a detached and neutral magistrate really is not so important

      • indeed, they say that since the police by hypothesis have PC to seize the property, one can assume that a warrant will be routinely forthcoming in the majority of cases

      • Scalia, J., concurring

        • warrant requirement is so riddled with exceptions that it is unrecognizable

        • thus, it is misleading to view warrant clause as the primary clause of 4A

        • should return to reasonableness requirement except in cases where pre-4A common law required a warrant or changes in surrounding law justify extension of warrant requirement
    • NOTE: perverse incentive exists to claim that PC was for the car rather than the suitcase in the trunk of the car


    • search of contained found in car is not unlawful simply because the search was (a) conducted some days after the car was seized; or, (b) conducted after the container was removed from the car (US v. Johns, 1985—357)

      • NOTE: delay might be unreasonable if it impinges too much on privacy or possessory interest

    • warrant-less search of containers in a car belonging to passenger is permissible if officer has PC to believe that contraband (or evidence of a crime) is located in the car (Wyoming v. Houghton, 1999—358)

      • doesn’t matter if police know (or should know) that the container searched is the property of the passenger—passenger’s property is treated as simply another place in the car

      • NOTE: Di Re says police cannot search the passenger’s person absent PC re. that person

        • this creates boundary-line problem—police can search purse on passenger’s lap, but cannot search her pockets

      • ability to search doesn’t depend on culpability; it depends rather on the opportunity that a party who is culpable (for whom PC exists) to hide evidence

K. Exigent Circumstances



  • practical effects

    • exigent circumstances justify search (based on PC) without a warrant

    • also justify arrest in one’s home without a warrant

  • hot pursuit

    • justification: knowing that he is being pursued, ∆ may:

      • seek to escape

      • destroy evidence

      • create a threat to public safety
    • thus, officers who chase suspect to what was later determined to be his house were justified in entering the house to arrest suspect and in searching the house for weapons that suspect might have concealed (Warden v. Hayden, 1967—362)


    • but, officers are not justified in carrying out warrant-less arrest in the home (or search) if suspect never knew he was being pursued (Welsh v. Wisconsin, 1984—363)

      • witnesses told officers that driver had been weaving before driving into ditch, and then wandered off, were not justified in entering suspects house without a warrant after finding out where he lived by looking at car registration

  • risk of destruction of evidence

    • Dorman factors:

      • gravity or violent nature of offense with which suspect is to be charged

      • whether suspect is reasonably believed to be armed

      • clear showing of probable cause to believe suspect committed crime

      • strong reason to believe that suspect is on premises being entered

      • likelihood of escape if not swiftly apprehended

      • peaceful circumstances of entry

    • US v. MacDonald, 2dCir—364: entry justified where police saw suspects jumping from window after they announced their presence at the door moments after a controlled drug-buy; didn’t matter that undercover operation had been going on for months or that, prior to police knocking at door, suspects did not know they were under surveillance

    • this is unlikely to ever be a justification for a warrant-less arrest if the violation is relatively minor (Welsh—369)

  • impermissibly created exigency

    • standard is completely unclear

    • US v. MacDonald, 2dCir—364: didn’t matter that undercover operation had been going on for months or that, prior to police knocking at door, suspects did not know they were under surveillance
    • but see Timberlake, DCCir—372: “police officers cannot deliberately create exigent circumstances”; thus, entry is invalid where there is “no evidence that police, when they knocked on the door, intended anything other than a warrantless search of the apartment”

L. Administrative Searches



  • searches of homes—warrant is required; but it need not be based on PC

    • warrant for administrative safety inspection of home may be issued by an administrative officer (not necessarily a judge) on the basis of finding that search is in compliance with reasonable regulatory scheme (Camara v. Municipal Court, 1967—380)

      • requirements for a regulatory warrant

        • regulatory scheme

        • search must be in compliance with the regulatory scheme

        • PC is not required

      • issuing the warrant

        • warrant is issued by an administrative officer

        • warrant need not be issued by a judge

  • searches of businesses

    • warrant-less searches of premises on which closely regulated industry operates are sometimes permissible (New York v. Burger, 1987—382)

      • Diminished Expectation of Privacy (DEOP) (you’ve chosen to enter a pervasively regulated industry)

      • duration/history of regulation is relevant, although not dispositive

      • in this case, automobile junkyard was found to be “closely regulated” largely on the basis of the relationship btw. such businesses and other second-hand shops (which the Court claims have long been subject to government regulation)

      • dissent notes that, unless the inspections themselves are included (which is obviously bootstrapping—ie. warrant-less search is OK b/c industry is subject to warrant-less searches), automobile junkyards are no more “closely regulated” than the vast majority of businesses (all that government requires is licensing and record-keeping)
    • three-part test for determining reasonableness of warrant-less regulatory search of closely regulated business


      • regulatory scheme informed by substantial government interest

      • warrant-less searches are necessary to further that scheme

      • regulatory statute must:

        • (a) advise owner of commercial premises that search being made pursuant to law and has a properly defined scope

        • (b) limit the discretion of the inspecting officers

  • “special needs” searches and seizures of individuals

    • searches in schools

      • New Jersey v. TLO, US 1985—392: search of student’s handbag on basis of RS that it contained cigarettes justified by the state’s special need to assure safe and healthy learning environment

      • Cornfield by Lewis v. School Dist., 7th Cir—392: extends this to strip search based on teacher’s aide’s belief that boy was “crotching” drugs (two male professors accompanied boy to locker room where he was made to change into gym clothes while they watched so that they could search his clothes)

      • Jenkins by Hall v. Talladegga City Board of Education, 11th Cir—393: school officials entitled to qualified immunity on basis of TLO where civil action sought damages for strip search of two second-graders on basis of RS that they stole $7

    • drug testing of employees

      • Skinner v. Railway Labor Executives’ Ass’n, 1989—394: upheld a program mandating drug tests for all railroad personnel involved in certain train accidents on the basis of the government’s interest in regulating the conduct of railroad employees to ensure safety
      • National Treasury Employees Union v. Von Raab, 1989—395: upheld a compelled urinalysis of certain Customs Service employees


        • governmental interest: need for safety and to ensure that customs employees responsible for controlling the flow of drugs into the country are not on drugs themselves

        • dissent: the problem of alcohol use among RR workers was well documented in Skinner—here there was no documentation that customs workers used drugs

    • drug testing on candidates for employment

      • justification: employers have an opportunity to observe those already employed to determine whether there is reasonable suspicion that they are using drugs

      • with applicants there is no such chance for observation

    • HIV testing

      • People v. Adams, 1992—413:

        • rejected a 4th amendment challenge to an Illinois statute that required mandatory HIV testing for defendants convicted of prostitution-related crimes and other sexual misconduct

        • special need: government has a special need in stopping the spread of AIDS and in informing and treating those who may have had sexual contact with a person who is HIV-positive

    • Ferguson v. City of Charleston, 2001—413:

      • state hospital’s performance of a diagnostic test to obtain evidence of a patient’s criminal conduct (drug use while pregnant) for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure

  • roadblocks, checkpoints and suspicionless seizures

    • permissibility of roadblock depends on the asserted justification (measured by rational basis test); the fact that a search uncovers information other than that which the police sought does not affect the analysis (see Sitz)

    • unjustified suspicionless stops

      • Delaware v. Prouse, 1979—420: police cannot stop cars at random to check license and registration without individualized suspicion


        • condemns unconstrained exercise of discretion

        • moreover, there are less intrusive alternatives (e.g., annual inspections of cars)

      • City of Indianapolis v. Edmond, 2000—422: suspicionless stops at narcotics checkpoint is unconstitutional in the absence of individualized suspicion where purpose of the roadblock is ordinary criminal investigation (i.e., narcotics trafficking)

    • justified suspicionless stops

      • policing the border

        • US v. Martinez-Fuerte, 1976—420: suspicionless stops at permanent checkpoints removed from the border are justified b/c they are necessary to implement state interest in regulating flow of illegal aliens

      • ensuring roadway safety

        • Michigan Dept. of State Police v. Sitz, 1990—420: suspicionless stops at fixed sobriety checkpoint are constitutional

          • court uses a Terry analysis here, not a special needs analysis

            • classic law enforcement case: no special need other than classic law enforcement

            • thus, the court balances the state interest against the degree of intrusion

          • Rational Basis Test: regulatory scheme has to be reasonably related to a rationale governmental objective

            • if ten years down the road, it turns out that the checkpoints never catch drunk drivers, the roadblock would no longer be rational (i.e., rational basis must be measured at the time of the search, not at the time that the regulatory scheme is adopted)

      • investigating a prior crime

        • Illinois v. Lidster, 2004—432: suspicionless stops at checkpoint are justified where purpose is to request information from members of the public regarding a fatal hit and run accident that occurred in the same location one week earlier


          • seeking information from the public may be justified absent individualized suspicion because it is less likely to provoke anxiety (NOTE: this rationale is completely unsupported)

M. Consent Searches



  • basics of consent

    • consent to search must be given voluntarily, but consent need not be knowing and intelligent

      • Schneckloth v. Bustamonte, US 1973—452: failure to inform suspect of right not to consent to search does not show that consent was not voluntarily given

      • involuntary, in this context, means something close to coerced

    • test for consent: totality of the circumstances

      • non-exclusive factors (US v. Gonzalez-Basulto, 5thCir 1990—455)

        • volutariness of ∆’s custodial status

          • NOTE: custody, standing alone, does not invalidate consent

        • use of coercive police procedures

        • extent of ∆’s cooperation

        • ∆’s awareness of right to refuse consent

        • ∆’s intelligence and awareness

        • ∆’s belief that no evidence will be found

    • Ohio v. Robinette, 1996—458: ∆ need not be told that he is free to go following a lawful stop in order to validate subsequent consent to search
    • US v. Zapata, 10thCir 1990—459: consent is not invalid because upbringing / cultural values lead ∆ to believe that she cannot refuse police request


  • third party consent

    • US v. Matlock, 1974—461 (footnote 7): “The authority which justifies the third-party consent … rests … on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right…”

    • apparent authority

      • Illinois v. Rodriguez—461: third party consent made with apparent (rather than actual) authority does not render search unlawful

        • 4A does not render unconstitutional reasonable but erroneous judgments (i.e., that individual with apparent authority could consent to search)

        • dissent: theory of third party consent is that individual has willingly reduced REOP by allowing access to third party; if the third party lacks actual authority to consent, the individual retains her REOP

  • scope of consent

    • Florida v. Jimeno, 1991—466: scope of consent is measured by standard of reasonable objectiveness

      • Jimeno: consent to search car for narcotics includes search of paper bad on back seat because reasonable person knows that narcotics are often carried in some form of container

  • withdrawal of consent

    • ∆ can withdraw or limit consent to search at any time

    • while the withdrawal itself cannot a factor supporting PC for further search, demeanor and conduct when withdrawing consent can be taken into account (see US v. Carter, DCCir 1993—469)

  • credibility determinations
    • when there are two conflicting accounts, court usually goes with cop


    • unless cop’s story is:

      • implausible on its face

      • internally inconsistent

      • contrary physical evidence

    • appellate standard of review: clear error—very deferential

N. Wiretapping, Eavesdropping, etc.


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