Fourth Amendment Search and Seizure: Threshold of Search and Probable Cause
CONSTITUTIONAL CRIMINAL PROCEDURE SPRING 2017
THRESHOLD OF FOURTH AMENDMENT SEARCH
Fourth Amendment prohibits “unreasonable searches”
When is a search a “search” (constitutional)?
Some forms of police investigation do not qualify as a search and therefore fall outside the scope of constitutional regulation
Police conduct that is not a “search” cannot be “unreasonable search” and therefore cannot violate the constitution
Reasonable Expectation of Privacy (“REP”)
Katz v. United States: Police attached a listening device to a telephone booth and used statements made by Katz in trial.
Court: Rejected existing test requiring physical intrusion into a constitutionally protected place.
Court: What a person KNOWINGLY EXPOSES to the public, even in his home, is not a subject of 4th amendment protection. The government’s electronic listening violated privacy that one justifiably relied on.
Katz test
US v. White: Informant recorded a conversation for the police.
Different from Katz because the listening device is on the person, White assumed the risk that the informant was cooperating with the police.
Harlan Test: Whether we should impose on our citizens the risks of the electronic listener or observer without at least the protection of the warrant requirement.
Balancing Test: Impact of investigative technique on an individual’s sense of security vs. utility of technique in enforcement of the law
Smith v. Maryland: At the request of the police, a phone company attached a pen register giving information to the police from the register, so the police obtained a warrant.
Court applies REP test
Court says no REP for dialing numbers and getting them recorded by the phone company. People voluntarily and knowingly convey that their pen registry can be recorded permanently by phone companies
Search of numbers dialed not as intrusive as the content of the call
California v. Ciraolo: Based on an anonymous tip, the police looked into D’s fenced yard from 1000’ in a plane.
Court: What a person KNOWINGLY EXPOSES to the public, even in his own home or office, is not a subject of 4th amendment protection
No search because it took place within navigable airspace
In a physically non-intrusive manner
Readily discernible to the naked eye as marijuana
What an officer can observe from a place where the officer is lawfully entitled to be at, does not constitute a 4th search
Looking through a hole? Atop a telephone pole? Opening a gate and stepping inside? From a helicopter at 400 feet? 100 feet?
Oliver v. US: Police entered D’s fenced farm with a no trespassing sign and saw MJ not visible from the road.
Court says a person may not legitimately demand privacy for activities conducted outdoors in “OPEN FIELDS” except in the area immediately surrounding the home (the curtilage of the home). OPEN FIELDS not protected under the 4th amendment
Here, the correct inquiry is whether the government’s intrusion infringes upon the personal and societal values protected by the 4th. OPEN FIELDS does not provide a setting for intimate activities that the 4th A was intended to shelter from government interference.
Bond v. US: Border patrol agent squeezed soft luggage in overhead storage of a bus, noticed a brick-like object, asked and was given permission to open the bag.
Was the squeeze a search?
Court: Physically invasive inspection is more intrusive than purely visual inspection. Passengers do not expect others to feel their luggage in an exploratory manner.
See further examples on slides
Electronic Tracking under REP
US v. Knotts: Police attached a tracking device to a container of chemicals to be sold to Knotts. The device enabled the police to track the container’s movements through public streets
US v. Karo: Police attached a tracking device to a container of chemicals allowing the police to determine that the container was taken inside a private residence.
US v. Jones: Without a warrant, the police attached a GPS to D’s car and tracked its movements on public streets for 28 days.
Katz test: search?
Court held that the police conduct was a 4th search because the installation of the GPS constituted a trespass to chattel.
A trespass by itself does NOT constitute a search. It is only a search if it is a trespass for the purpose of obtaining evidence.
Kyllo v. US: Police used a thermal imaging device to detect relative amounts of heat. 4th A Search?
Court: Obtaining by sense-enhancing technology any information regarding the interior of a home that could not otherwise have been obtained WITHOUT PHYSICAL INTRUSION constitutes a search.
In the home, all details are intimate details because the entire area is held safe from prying government eyes
US v. Jacobsen: Government agents re-opened a package that was previously opened by FedEx employees (private parties). Agents then used a chemical field test to identify contents as cocaine.
Court: Reopening of the package not a search because it was virtually certain to that it would not reveal anything beyond what was described by private parties
The field test was not a search because it would disclose ONLY whether the powder was cocaine, and there is no legitimate interest in protecting the privacy of that fact.
US v. Place: Police lawfully seized a suitcase belonging to Place. Because they lacked PC to obtain a search warrant to search the contents of the case, the police had a dog sniff to detect the presence of drugs. The dog “alerted” to the presence of drugs.
A dog-sniff is not a search because (1) the dog does not reveal any information other than whether the suitcase contains illegal drugs; (2) there is no 4th amendment interest in protecting against the revelation of a person’s possession of illegal drugs.
Florida v. Jardines: Police accompanied by a drug-sniffing dog walked to the front door of D’s home where the dog was alerted to drugs.
Court says it is a search under the 4th A.
Ordinarily an implicit license permits a visitor (even Police) to approach a home front door and then leave (absent an invitation to linger longer). BUT there is no customary invitation to bring a drug-sniffing dog to explore the area around the home to discover incriminating evidence.
This constitutes trespass. See Jones. A trespass for the purpose of gathering evidence is a 4th amendment search.
PROBABLE CAUSE
Fourth Amendment requires that searches and seizures be “reasonable.” A search is not reasonable UNLESS it is based on PROBABLE CAUSE.
Why PC?
The SCOTUS described the requirement of PC as “the best compromise found for accommodating the often opposing interests of privacy and effective law enforcement.
PC is not quantifiable
Less than “more likely than not,” but more than “bare suspicion”
Defined as “fair probability” or “substantial chance”
Must be based on objective facts and circumstances
PC for Arrest
Facts and circumstances within an officer’s knowledge and of which he has reasonably trustworthy information which are sufficient in themselves to warrant a person of reasonable caution in the belief that:
A particular person
Has or is committing a particular offense.
PC for Search
Facts and circumstances warranting belief that:
Fruits/instrumentalities/evidence of crime
Presently
In specific location
PC to search includes a timing element that is not present in PC to seize, and therefore PC to search can go “stale” through passage of time
Example:
Spinelli v. US: FBI suspected Spinelli was running an illegal gambling operation. FBI got a warrant to search his office, turning up substantial evidence of criminal gambling. Was the warrant supported by PC?
Factors of the warrant: (1) D known gambler/bookmaker (how much weight should this be given?; (2) informant gave two phone numbers belonging to Spinelli regarding gambling; (3) FBI observed D traveling to places containing phones with those phone numbers — Does 2 and 3 establish PC to believe that he is running a bookmaking operation?
In order for the warrant procedure to achieve its purpose, the judge must be provided with information to make an independent judgment of the existence of PC.
This requires that the judge be able to independently evaluate:
(1) is the information on which the application is based accurate?
(2) assuming the information is accurate, does it establish the existence of probable cause?
When information is provided by a sworn statement of the police, then only the second problem exists.
Informants: Police must provide the magistrate with information about both:
(1) The veracity of the informant; and
Establishing an informant’s veracity:
Informant’s track record: showing that an informant provided accurate information on ten previous occasions in some evidence that she is truthful
Self incriminating statement/Declaration against interest: People don’t typically tell damaging lies
Independent corroboration of tip: because the informant is right about some facts, she is more probably right about other facts
(2) The informant’s basis of knowledge
Establishing an informant’s first-hand knowledge:
Express statement of first hand knowledge: “The informant advised your affiant that he had placed a bet with Spinelli at his apartment”
Self verifying detail: detailed information is not usually the subject of casual conversation
Accurate Prediction of Future Actions: Predicting future actions
Draper v. United States: a known and reliable informant told agents that D would be arriving in Denver by train on Sept 8 or 9 from Chicago with 3 oz of heroin. The informant gave a detailed description of D and his clothing, carrying a tan zipper bag and ‘walked real fast.’ Agents saw a man fitting the description in all respects arrive from Chicago on Sept 9. Arrested D and found heroin.
Illinois v. Gates: anonymous letter of drugs in Ds house and with details about Ds travel plans regarding drugs. Does the letter, alone, establish PC that D’s had drugs in their condo?
New Test of Totality of Circumstances: Magistrate must simply make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information (informants), there is a fair probability that contraband or evidence of a crime will be found in a particular place.
PCs that rely on informant’s’ veracity and basis of knowledge are highly relevant considerations in the above analysis
BUT, a finding of PC does not require both prongs. A deficiency in one prong may be compensated for by a strong showing as to the other prong.
SEARCH WARRANTS
Johnson v. US:
US v. Watson
Warrant not required for arrest if:
(1) the crime is either
(a) a felony; or
(b) a misdemeanor committed in the officer’s presence
(2) the defendant is arrested in a public place
Gerstein v. Pugh: The 4th amendment requires a judicial determination of PC as a prerequisite to extended restrain on liberty following a warrantless arrest
A jdx that provides a judicial determination of PC within 48 hours of arrest will, as a general matter, comply with the promptness requirement of the 4th Amendment
An individual detained for less than 48 hours may still show that the detention was unreasonable
When an arrestee does not receive a PC determination within 48 hours, the burden shifts to the government to demonstrate emergency or other extraordinary circumstance
US v. Grubbs: D purchased child porn from an undercover website. The affidavit ISO warrant application stated “execution of the warrant will not occur unless and until the parcel video has been received and physically taken into the house. After D’s wife took the parcel inside, the police searched the house.
Anticipatory warrants: A warrant based on an affidavit showing that at some future time (but not now) certain evidence will be at a specified location.
Court said pretty much all warrants are anticipatory because all warrants anticipate that evidence will be present at the time of execution. Wire taps are clearly anticipatory–
Failure to include a triggering condition in the warrant violates the 4th amendment?
Additional requirement for anticipatory warrants which include a triggering condition:
Triggering condition for an anticipatory warrant must be specified in the warrant
Fourth amendment specifies two facts that must be specified with particularity
Risk of overzealous officers in anticipatory warrants?
Andersen v. Maryland: Police searched D’s law office/business in investigating fraud in connection with a real estate transaction.
Test Whether Warrant is Sufficiently Particular: As to what is to be taken, nothing is to be left to the discretion of the officer executing the warrant.
Is the warrant valid if the judge and police have a misunderstanding of what is allowed to be searched?
Particularity Requirement: Degree of required particularity depends on what is feasible under the circumstances, including the nature of things to be seized.
Less particularity is required for contraband and more particularity is required for warrants authorizing seizure of material protected by the First Amendment.
Severability Doctrine
Courts sometimes sever invalid portions of a warrant from other parts of the warrant that are valid
Evidence seized under the part of the warrant this is invalid is suppressed, but evidence seized under the valid portion is not.
Maryland v. Garrison: Police obtained and executed a warrant to search the person of Lawrence and place a third floor apartment, but did not know there was a second apartment on the third floor. Police searched the entire 3rd floor discovered drugs in the 2nd apt. Before realizing there were two apts. D seeks to suppress drugs on grounds that the warrant failed to particularly describe the place to be searched.
Validity of the warrant determined based on information available to the police at the time of application and issuance.
A mistake in the description of the place to be searched does not invalidate the warrant, provided the mistake is reasonable
The warrant is invalid if the police KNEW, or should have known, that the warrant was mistaken.
Wilson v. Arkansas: Police executed a warrant for a drug search, identified themselves with the warrant, opened an unlocked screen door and entered the house.
Reasonable execution of the warrant generally requires that the police knock, announce, and be denied entry before forcing entry.
Knock and announce excused if the police have “reasonable suspicion” that knocking and announcing would be dangerous, futile, or would inhibit effective investigation through, e.g., destruction of evidence.
EXCEPTIONS TO THE WARRANT REQUIREMENT
3 Questions:
(1) What is the showing necessary to invoke the exception?
What facts or circumstances must be established in order for the police to use the exception?
(2) What is the rationale for the exception?
What is the reason for creating an exception to the general requirement of a warrant when those facts exist?
(3) What is the scope of authority conferred by the exception?
What are the police allowed to do when this exception is applicable?
SEARCH INCIDENT LEADING TO ARREST (“SILA”)
Chimel v. CA: Police arrested D at his house with an arrest warrant for burglary of a coin shop. Over D’s objection, the police searched the entire house, including inside bedroom drawers. They seized coins and other objects.
Showing:
PC to arrest
Rationale:
Prevent arrestee from obtaining weapons
Prevent arrestee from destroying or concealing evidence
Scope:
Grasping distance of arrestee (area from within which an arrestee might gain possession of a weapon)
Alito’s dissent in AZ v. Gant: the test is the area within the arrestee’s grasping distance at the time of the search (instead of the time of the arrest) most likely because the police almost always can and do secure the arrestee first and then conduct the search
Hypo slide
US v. Robinson: D was arrested for driving w/o a license. During a search of D, Police discovered a crumpled cigarette package in his coat pocket. The officer opened the package and discovered heroin.
The authority to search the person during an arrest, while based on the need to disarm and discover evidence, does not depend on what a court may LATER decide was the probability in a specific situation that weapons or evidence would in fact be found upon the person.
A custodial arrest based on PC is a reasonable intrusion under the 4th amendment; that intrusion being lawful, a SILA requires no additional justification
Showing:
Custodial Arrest
Rationale:
Prevent arrestee from destroying/concealing evidence
Prevent arrestee from obtaining a weapon
Scope:
Outer clothing pat-down?
Find and remove containers?
Find, remove, and open containers?
Questions: can the police search if the person is cited for speeding but not arrested? Would it make a difference if the could have arrested the person for the offense but made a discretionary decision not to arrest?
NY v. Belton: Lone PO stopped a speeding car with 4 occupants, smelled weed and saw an envelope labeled “supergold”. PO arrested all 4, separated them, searched the car and discovered cocaine in Belton’s jacket pocket.
Holding: When a police officer has made a lawful custodial arrest of the occupant of an automobile, the officer may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
the entire passenger compartment of an automobile is subject to search under the search incident doctrine even if the arrestee is out of the car
AZ v. Gant: Gant arrested for driving without a license about 10’ from the car he had been driving. Police searched the car after back-up POs arrived and Gant was was handcuffed and placed in a patrol car.
PO can search the passenger compartment of a vehicle, incident to a recent occupant’s arrest (and therefore without a warrant) only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search, or that the vehicle contains evidence of the offense of arrest.
Police may search a car incident to the arrest of a recent occupant only if either:
(1) The arrestee is within reaching distance of the passenger compartment at the time of the search; or
(2) if it is reasonable to believe the car contains evidence of the offense of arrest
Holding: (1) Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle. (2) Circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle
Alito dissent?
Cell Phones: Riley v. CA and Wurie v. CA
Riley was arrested after an inventory search of his car turned up 2 guns. POs seized a smart phone during a SILA search, searched the phone and found photos linking D to a murder.
Wurie was arrested after being seen selling drugs. At the station, PO seized a flip phone. The phone received calls from “my house,” the police opened and identified the number of the caller, leading to a search of D’s house.
Search warrants required to search a mobile phone
Court: Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape
PO can examine physical aspects of the phone to ensure it is not a weapon/harmless
Info may be deleted but a warrantless search will most likely not make a difference
Smart phones are very private
THE PAYTON DOCTRINE
Payton v. NY: Police broke into D’s house to arrest him. Payton wasn’t there, but the police seized a bullet in plain view inside the apartment
Court: It is unconstitutional, under the Fourth Amendment of the Constitution, to search a home during an arrest when there is no arrest warrant and there are no exigent circumstances. The Supreme Court holds that the entrance to a person’s home is a critical point where constitutional safeguards are heightened. This is true even when probable cause exists or when there is statutory authority permitting the searches.
In order for the police to enter the arrestee’s home to make an arrest, the police must have:
An arrest warrant;
PC to believe that the arrestee is inside the home.
Scope of authority conferred by exception:
Police may enter the defendant’s house and carry out a search for the defendant
Steagald v. US: Police entered Steagald’s home with a warrant for the arrest of Lyons, and discover drugs which they use against Steagald.
Court: An arrest warrant is not sufficient under the Fourth Amendment to search the home of a third party unless exigent circumstances are present.
Different interests protected by an arrest warrant and a search warrant:
An arrest warrant primarily serves to protect against unreasonable seizure
A search warrant safeguards an individual’s privacy arrest
A search warrant, rather than an arrest warrant, is required to enter a third party’s home to make an arrest.
EXIGENT CIRCUMSTANCES
Showing required to invoke exception
PC to search
Some need or exigency to act without a warrant
Rationale for recognizing exception
Because of the exigency, obtaining a warrant is impracticable
Scope of authority conferred by the exception
Defined by the exigency that gives rise to the exception
Warden v. Hayden: Upon learning that a suspect in a recent robbery had entered a house, the police searched the house and found: (1) D feigning sleep in an upstairs bedroom, (2) guns in the flush tank in an adjoining toilet, (3) ammunition under the mattress and in a bedroom bureau, and (4) clothes matching the robber’s in a downstairs washer.
Police in hot pursuit
Court: The distinction prohibiting seizure of items of only evidential value and allowing seizure of instrumentalities, fruits, or contraband is no longer accepted as being required by the Fourth Amendment
Wisconsin v. Welsh: D’s car is seen swerving off the road into a field. When the police arrive, they are told the driver left the scene either drunk or ill. They examine the registration and proceed to D’s home nearby. PO enter the house and arrest D for drunk driving.
Grounds for immediate warrantless search? Hot pursuit? Protection of the public? Preservation of evidence?
Court holding: Absent exigent circumstances, a warrantless nighttime entry into the home of an individual to arrest him for a civil, non-jailable traffic offense is prohibited by the special protection afforded the individual in his home by the Fourth Amendment.
Brigham City v. Stuart: Loud party, the police looked through the screen door and saw four adults trying to subdue a juvenile. At one point the juvie hit one adult causing him to spit blood. Police entered and arrested Ds.
Warrantless entry under exigent circumstance
Exigency according to court: One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury.
The court found that”the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning”
Knock and announce rule
The court found the POs manner of entry reasonable when, after seeing the punch, one officer opened the screen door to the kitchen and yelled in”police”
Kentucky v. King: When the police pounded on the door and shouted “police” at the door of an apt from which they smelled weed, they heard sounds of people moving things inside. Police forced entry where they seized drugs.
The police will not be deemed to have manufactured the exigency unless there is an actual or threatened violation of the Fourth Amendment.
Holding: Warrantless searches conducted in exigent circumstances do not violate the Fourth Amendment so long as the police did not create the exigency by violating or threatening to violate the Fourth amendment.
Here, they only yelled Police and did not threaten anything.
Illinois v. McArthur: Police accompanied D’s wife to a trailer where she lived with her husband so she could remove her belongings. As she left, the wife told POs that her husband has dope inside the trailer. D refused to grant consent to search, and the police prevented D from entering until they obtained a search warrant.
Court: Police had PC to believe the trailer contained drugs, they reasonably believed that D would destroy the drugs if not restrained, and they imposed restraint that was limited and tailored reasonably to secure law enforcement needs while protecting privacy interests.
AUTO EXCEPTION
Chambers v. Maroney: Police stop a car matching the description of a recent robbery. Police stop the car, arrest the occupants, and search the car finding guns and the proceeds of the robbery.
Justification for warrantless search of a car
Court: A warrantless search of a car is not permitted in every conceivable circumstance, even if the police have PC.
The Court first held that the search could not be sustained as a search incident to arrest (SITA). It quoted at length from Carroll that a search of a movable vehicle is treated differently under the Fourth Amendment because the mobility of the vehicle alone can easily defeat the warrant requirement. If there is probable cause to believe the vehicle contains criminal evidence and there exist exigent circumstances where the vehicle can be removed from the jurisdiction, a warrantless search would be reasonable. It made no constitutional difference here that the search followed the seizure because the probable cause which developed on the street still existed at the station house (where the vehicle was impounded). For this purpose, it is significant to note that the automobile exception and the SITA doctrine are quite different.
Texas v. White: When arrested for passing bad checks, White was seen stuffing something between the seats of the car. Police took the car to the station where it was searched.
Court distinguishes Chambers: In Chambers we held that police officers with PC to search an automobile at the scene where it was stopped could constitutionally do so later at the station house without first obtaining a warrant.
US v. Johns
How long may the police hold a car before searching?
In Johns, SCOTUS found that the odor of marijuana gave the officers probable cause, and the three day delay in conducting the search was not unreasonable, but left open the possibility that a delay that adversely affected privacy or possessory interests could result in the search being found unconstitutional.
CA v. Carney: Police have PC to believe that D has drugs inside his Dodge Mini Motor Home parked in a public parking lot across the street from the courthouse.
Court: A motor home is subject to the automobile exception to the 4th Amendment search warrant requirement because it is readily movable.
Rationale for Auto Exception
Ready mobility
The mobility of automobiles creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirements is impossible.
Lesser expectation of privacy
The exception of privacy with respect to one’s automobile is significantly less than relating to one’s home or office…these reduced expectations of privacy derive not from the fact that the area to be searched is in plain view, but from the pervasive regulation of vehicles capable of traveling on the public freeways.
Auto exception to cars stationary on a public street and on private property of a non-owner
PA v. Labron and PA v. Kilgore
US v. Chadwick: Police have PC to believe that D’s footlocker contains drugs. Police observe Ds load the footlocker into the open trunk of their car at the Boston train station, whereupon ds are arrested and the footlocker seized. Police later searched the footlocker without a warrant.
Court: absent exigency, the warrantless search of double-locked luggage just placed in the trunk of a parked vehicle is a violation of the Fourth Amendment and not justified under the automobile exception. The Court reasoned that while luggage is movable like an automobile, it does not have the lesser expectation of privacy associated with an automobile.
NOTE: in CA v. Acevedo: Court overruled Chadwick‘s holding with respect to containers within a vehicle, holding that the police may search a container within a vehicle without a warrant if they have probable cause to believe that the container itself holds contraband or evidence.
US v. Ross: Informant told the police that Ross was selling drugs from the trunk of his car. Police stopped the car, searched it, in the trunk they found a paper bag with drugs in it.
Court: search of the bag was permissible under the auto exception
Arkansas v. Sanders: Police had PC to believe that a suitcase contained drugs. They watched as Sanders put the suitcase in the trunk of a taxi and drove away. Police stopped the taxi, retrieved the suitcase, and search it, discovering drugs.
Court: Search of the suitcase was unlawful. Absent exigency, the warrantless search of personal luggage merely because it was located in an automobile lawfully stopped by the police is a violation of the Fourth Amendment and not justified under the automobile exception. Similar to United States v. Chadwick, the luggage was the subject of police suspicion before being placed in the vehicle.
CA v. Acevedo: After observing D place a bag believed to contain drugs in the trunk of a car, the police stop the car and search the bag.
Police, in a search extending only to a container within an automobile, may search the container without a warrant where they have probable cause to believe that it holds contraband or evidence.
Wyoming v. Houghton: Police stop a car for speeding. While questioning the male driver, the police notice a hypodermic needle in his pocket, which he admits he uses to inject drugs. This admission gives the police PC to search the car for illegal drugs. Police search a purse belonging to a female passenger, where they find illegal drugs.
Container in the car falls under the auto exception, “whether its owner is present as a passenger or otherwise.”
However, PC to search a car does NOT justify a body search of a passenger.
INVENTORY AND CONSENT
South Dakota v. Opperman: Police impounded D’s car because it was illegally parked. After noticing a watch on the dashboard, the contents of the car were inventoried. During the inventory, the police found weed in the glove compartment.
Court holding: Warrantless routine inventory searches of automobiles impounded or otherwise in lawful police custody, pursuant to standard police procedures, are reasonable and not prohibited by the Fourth Amendment
Showing required for inventory search:
(1) Lawful impoundment;
What is lawful impoundment and why is it required
(2) Standard police procedures for inventory
In order to prevent discriminatory and pretextual inventory searches, the inventory must be conducted pursuant to standardized procedures governing:
1. The decision to impound the car
2. The decision to inventory
3. The scope of the inventory, specifically whether the inventory extends to containers found inside the car.
Rationale for Inventory Search: Governmental interests justify inventory searches of a car
1. Protect owner’s property
2. Protect the police against claims or disputes over lost or stolen property
3. Protect the police and others against danger
Scope
Wherever in the car valuable or dangerous objects might be located.
Opening Containers during Inventory Search
Bertine v. Colorado
Majority: accepted that the police may search containers inside a car ONLY if they are following standard police procedures that mandate the opening of such containers in every impounded vehicle
However, subsequent cases suggest that procedures regarding containers need not eliminate all police discretion in choosing which containers to inventory.
Florida v. Wells: Opening containers during inventory is unlawful if there were no standardized procedures governing inventorying the contents of containers found in cars.
Sufficient Procedures
While policies of opening all containers or opening no containers are unquestionably possible, it would be equally permissible, for example, to allow opening of closed containers whose contents officers determine they are unable to ascertain from examining the containers’ exterior.
CONSENT
Voluntary Consent
Schneckloth v. Bustamonte: Police stopped a car for a traffic infraction. One of the passengers, who was the brother of the car’s owner, gave consent to search. Police found stolen checks under the seat.
Court holding: Consent searches are constitutional, and that the government must show that consent existed. However, a defendant, under the Fifth Amendment, need not
necessarily know of his right to object to a consent search.
Totality of Circumstances — Factors to determine whether a search is voluntarily consented to
External Factors:
Force, show of force, threats
Was the person in custody
Internal Factors:
Personal characteristics of the individual giving consent
Knowledge of the right to refuse
Third Party Consent
US v. Matlock: Matlock was arrested for bank robbery in front yard of house where he live with Graff. While Matlock was handcuffed in patrol car, Graff consented to search of the house, including the bedroom she occupied with Matlock, where police found proceeds of robbery.
Court: Voluntary consent it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.
Any of the co-inhabitants has the right to permit the inspection in his own right and the others have assumed the risk that one of their co-inhabitants might permit the common area to be searched.
Test for Third Party Consent:
The authority which justifies third-party consent does not rest on law of property, but on mutual use of the property by persons generally having joint access of control for most purposes.
search D’s car for drugs could search paper bag inside car.
Randolph v. Georgia: Upon arrival at Randolph home in response to domestic dispute call, Janet told police that her husband, Scott, was a cocaine user. Police asked Scott for consent to search the home but he refused so they asked Janet for consent. She gave consent and the police searched the house and discovered illegal drugs.
Court: Consent to search of a shared dwelling for evidence by one resident over express refusal of consent by physically present co-resident is not reasonable as to person refusing consent
This rule applies so long as the police have not removed the potentially objecting tenant for the sake of avoiding possible objection.
Fernandez v. CA: Police went to Fernandez’ apt after receiving info that a man involved in a gang related assault had fled there. They also heard sounds of fight coming from the building. D’s gf responded to knock at door and appeared injured saying she was in a fight. D arrived at door and said “you don’t have any right to come in, I know my rights.” Police arrested D and removed him from the scene. One hour later, police returned and received oral and written consent from gf to search apt where they found evidence to the recent assault.
Court: When a resident who objects to the search of his dwelling is removed for objectively reasonable purposes (such as lawful arrest), the remaining resident may validly consent to search.
Illinois v. Rodriguez: Police accompanied D’s gf to D’s apt in order to arrest D for assault. Although facts known to police indicated gf lived in apt with D, Police later learned she moved out. While inside the apt, police seized drugs in plain view.
Court holding: Under the Fourth Amendment, a warrantless entry is valid when based upon the consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not.
Constitution not violated when police enter w/o warrant because they reasonably, though erroneously, believed person consenting to entry had authority to consent.
Scope of Authority Conferred by Consent
Determined by intent of person giving consent
Reasonable person test of consenter’s intent
What would a reasonable person have understood by the exchange between the PO and the suspect?
Scope is generally defined by the express object of the search
E.g., Florida v. Jimeno: Court held that PO who obtained consent to
PLAIN VIEW SEIZURES
Horton v. CA: Police obtained warrant to search D’s home. Though affidavit referred to weapons and jewelry, warrant authorized search for jewelry only, including three described rings. Police searched for both weapons and jewelry, but only found weapons, which they seized.
Requirements for Plain View Seizure
Police are lawfully in a place from which evidence can be plainly viewed because:
(1) observed during execution of valid warrant
(2) observed during search under exception to warrant requirement
(3) observed from place where police are lawfully entitled to be
The incriminating character of the item as evidence subject to seizure is immediately apparent
The police have lawful right of access to the evidence
Rationale for Recognizing Exception
The rationale of the exception is that a plain view seizure will not turn an initially valid (and therefore limited) search into a general one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great
Authority Conferred by Exception
Plain view permits police to seize the item without a warrant
The purpose of the plain-view exception to the warrant requirement is rather to spare the police who discover weapons or contraband during the course of an otherwise lawful search the trouble of having to obtain a warrant to seize those weapons or contraband.
Arizona v. Hicks: A bullet fired through Hicks’ apt hit a man in the apt below. Police were notified and entered the apt where they seized three guns. While in apt, police noticed expensive stereo equipment that looked out of place, suspecting it was stolen. PO lifted stereo to read serial number, radioed it in, and learned it was stolen. PO seized it and arrested Hicks for possession of stolen property.
Court: Moving of stereo by PO to check serial number conducted a Fourth Amendment “search,” unrelated to the initial reason the police were in Hicks’s apartment, to search for weapons and the person who fired the bullet through the floor of the apartment.
Police require probable cause to seize items in plain view.
The immediately apparent requirement for a plain view seizure means that the police must have PC to seize.
THRESHOLD OF FOURTH AMENDMENT SEIZURE
Terry v. Ohio: After observing Terry and his companions repeatedly walk past one particular store pausing to look inside, PO concluded they were planning daytime robbery. PO then confronted the 3 men, patted them down and found a gun in Terry’s pocket.
Court: (1) Terry was seized because whenever a PO accosts an individual and restrains his freedom to walk away, he has seized that person. (2) The discovery of the gun was result of a search because it is nothing less than torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his body in an attempt to find weapons is not a search.
Usual requirements of PC and a warrant do not apply, but that the considerations underlying those requirements are fully applicable. This means that the reasonableness of officer’s actions are determined by balancing the need for the search or seizure against the invasion which it entails.
The court says that the determination whether the seizure and search were unreasonable involves a dual inquiry:
Whether the officer’s action was justified at its inception
And whether it was reasonably related in scope to the circumstances which justified the interference in the first place.
Sibron v. NY: PO observed Sibron talk with drug addicts over 8 hour period. Suspecting Sibron was selling drugs, PO confronted Sibron inside restaurant and told him to come outside saying “you know what I’m after.” Sibron mumbled something and reached into his pocket, at which point PO thrust his hand into Sibron’s pocket and removed heroin.
Court: Martinez never actually heard any of the conversations between Sibron and the narcotics addicts. As such, the inference that Sibron engaged in narcotics trafficking merely because he spoke with drug addicts did not constitute probablr cause for a warrantless search. Moreover, Martinez’s actions could not be justified as a self-protective search for weapons since he admitted that he had no reason to suspect Sibron of concealment.
Test for Seizure:
A person is seized only if, by means of physical force or show of authority, her freedom ofmovement is restrained in such a way that a reasonable person would believe that she was not free to leave.
The subjective intentions of the police are relevant to whether the person feels free to leave only to the extent those intentions have been conveyed to the suspect.
Not a seizure for police to approach people on street and ask questions
As long as the officer does not imply that compliance is mandatory, the officer may question or ask to examine the identification of an individual
US v. Mendenhall: Federal agents approached Mendenhall in airport concourse after she arrived on a flight from LA, asked for ID and ticket. She produced them, they asked questions, identified themselves as narcotic agents and asked her to accompany them to DEA office. She eventually consented to a search which resulted in discovery of illegal drugs.
Court holding: A person is “seized” within the meaning of the Fourth Amendment if a “reasonable person” in the same position “would have believed that he was not free to leave.” This test must be viewed under the totality of the circumstances.
Florida v. Bostick: During stopover, two POs wearing badges and holstered guns boarded bus as part of drug interdiction program. POs approached Bostick, and after checking ID, asked for consent to search his luggage, which he gave. Cocaine in luggage was found.
Court holding: A search of a passenger on a bus is not unreasonable simply because the search takes place on a bus. The search is reasonable if, under all the circumstances, the suspect felt free to decline the officers’ request for a search and leave the scene.
Bostick claimed he was not free to leave” because the bus was scheduled to depart soon, and if it were to depart without him he would be separated from his luggage. But Bostick “would not have felt free to leave the bus even if the police had not been present. Bostick’s movements were ‘confined’ in a sense, but this was the natural result of his decision to take the bus; it says nothing about whether or not the police conduct at issue was coercive.”
POs can approach people on street and ask questions. Not a seizure
If encounter in lobby before Bostick boarded the bus, undoubtedly no seizure would have occurred.
When a person is seated on a bus the appropriate inquiry is whether a reasonable person would feel free to decline the officer’s requests or otherwise terminate the encounter
Refusal to cooperate, without more, does not furnish objective justification for seizure.
US v. Drayton: 3 POs boarded bus as part of drug interdiction effort. One PO knelt on driver’s seat facing rear, second PO stood at rear of bus, and third PO worked his way forward asking permission to search passenger bags. Brown and Drayton consented to search, but nothing was found. PO then asked Brown, do you mind if I check your person? And Brown consented, and was arrested after PO found drugs. Drayton the consented to pat-down as well.
No seizure occurred because POs gave the passengers no reason to believe that they were required to answer PO’s questions.
Bus setting less coercive because other passengers are present
Badges and weapons carry little weight in analysis
PO in front of bus did nothing to intimidate passengers or indicate that they were not free to leave.
Request for consent to search indicated right to refuse cooperation.
CA v. Hodari D: Group of 4 or 5 youths scattered when approached by POs patrolling in high crime section of Oakland. PO Pertoso chased Hodari, who threw something (crack) to the ground right before he was caught and tackled.
Important to specify point at which Hodari was seized.
Court holding: During police pursuits, a fleeing suspect is not seized unless
(1) pursuing officers apply physical force to the suspect or
(2) the suspect submits to shows of authority
A person who has not been forcibly restrained is seized within the meaning of the 4th Amendment only if the person submits to the police show of authority.
When a seizure is accomplished byshow of authority, rather than by physical restraint, a seizure requires both:
Show of authority
Submission
Brendlin v. CA: Police stopped car in which D was riding as passenger. When it was discovered that there was an outstanding warrant for his arrest, D was arrested, and evidence of drug crimes was discovered in the subsequent search of the car.
Court holding: Automobile passengers are “seized” within the meaning of the Fourth Amendment when the car in which they are riding is held at a law enforcement traffic stop.
REASONABLE SUSPICION
SCOTUS has said that Reasonable Suspicion is less demanding than PC and considerably less than preponderance of evidence.
Reliance on “mere hunch” is not enough; PO must have “particularized and objective basis” for suspecting legal wrongdoing.
In drawing inferences from the facts, officers may draw on experience and specialized training.
Illinois v. Wardlow: The police had reasonable suspicion to justify the stop because nervous, evasive behavior, like fleeing a high crime area upon noticing police officers, is a pertinent factor in determining reasonable suspicion to justify a stop.
Alabama v. White: Police received anonymous phone call stating that Vanessa White would be leaving particular car to Dobey Hotel. Caller said she would be carrying one ounce of cocaine in brown attache case.
Court: anonymous tip from the informant had been sufficiently corroborated to furnish reasonable suspicion that respondent was engaged in criminal activity. The investigative stop did not violate the Fourth Amendment.
Florida v. J.L.: Police received anonymous tip that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. Officers responding to the tip found three black males, one of whom was wearing a plaid shirt, at the bus stop. The officers frisked all three, and recovered a gun from the boy wearing the plaid shirt, J.L.
Court: A police officer may not legally stop and frisk anyone based solely on an anonymous tip that simply described that person’s location and appearance without information as to any illegal conduct that the person might be planning.
That the tip accurately identified the defendant and that the allegation of the firearm ultimately proved to be accurate was insufficient to justify the seizure. For a completely anonymous tip to justify even a “stop and frisk” of a suspect pursuant to Terry v. Ohio, it must be “suitably corroborated” with both the accurate prediction of future activity of the subject and accurate in its assertion of potential criminal activity. The tip given in the J.L. case was only sufficient to identify the subject and nothing more, making the police reliance upon it unjustified.
Airport Cases
Reid v. Georgia: D arrived from Ft. Lauderdale, a place of origin for cocaine; arrived in early morning when law enforcement activity diminished; appeared to be concealing the fact that he was with traveling companion
Florida v. Royer: Young, casually dressed, pale, nervous; observing other people in airport; paid for one way ticket with case; checked suitcases using only false name and name of destinations; traveling under assumed name.
The Supreme Court held that, although the officers correctly approached Mr. Royer in the airport, they moved him without his consent to the small room and held him there without probable cause. Therefore, his consent to search the suitcase resulted from an illegal custody and the marijuana discovered could not be admitted into evidence. The officers should not have asked the suspect to accompany them from the point of the initial consensual encounter to the small room until they returned his ticket and license. Police must return such items before asking a person to accompany them. The court makes its decision about custody/non-custody based on everything police say or do—the totality of circumstances test. The officers also told him they suspected him of transporting narcotics, and then confined him in a small, enclosed room. If that were not enough, they retrieved his luggage without his consent. Thus, the Court held that a reasonable man would believe he was either under arrest, or in a custodial situation functionally equivalent to arrest. Since the officers only had reasonable suspicion, not probable cause to believe he was transporting narcotics until they opened the suitcase and found the marijuana (which they admitted in court), they had no legal right to place Mr. Royer in custody.
SCOPE OF TERRY STOP / INVESTIGATIVE SEIZURES
Florida v. Hayes: Hayes was suspect in series of burglary-rapes. Although they did not have PC to arrest, police took D to station to be fingerprinted. When prints matched those found on doorknob of victim, D was arrested.
Court: at some point in the investigative process, police procedures can qualitatively and quantitatively be so intrusive with respect to the suspect’s freedom of movement and privacy interests as to trigger the full protection of the Fourth and Fourteenth Amendments.
Court defines line at which a Terry stop becomes an arrest requiring PC
The line between an investigative detention and a de facto arrest is crossed when police forcibly remove a person from his home or other place and transport him to the police station, where he is detained, although briefly, for investigative purposes.
US v. Sharpe: DEA Agent Cooke observed heavily loaded pickup/camper caravaning with sedan on route generally used for drug trafficking. Cooke radioed Thrasher to assist with investigatory stop. Thrasher signaled for cars to pull over. Sedan complied, and was stopped by Cooke, but pickup continued ahead, and was eventually pulled over by Thrasher. Thrasher requested assistance of Cooke, who had remained with sedan. Cooke arrived at pickup about 15 minutes after stop. After verifying that pickup was overloaded and smelling marijuana through camper window, Cooke arrested driver.
No bright line time limit for stop
May not detain longer than is reasonably necessaryto investigate
20 minute detention permissible Terry stop where police were diligently pursuing methods likely to confirm or dispel suspicion.
Stop cannot continue indefinitely, even if police are investigating diligently.
Montoya de Hernandez: D detained by Customs Agents at LAX after arriving from Columbia. Based on RS that she had swallowed balloons containing drugs, agent held D for 16 hours until she passed the balloons.
Court: The detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal; here, the facts, and their rational inferences, known to the customs officials clearly supported a reasonable suspicion that respondent was an alimentary canal smuggler.
Hilbel v. Dist. Ct.: During Terry stop, Hilbel refused to respond to request for ID.
SCOTUS held that 4th amendment permits a State to require a suspect to disclose name in the course of Terry stop.
US v. Place: DEA agents detained D based on reasonable suspicion (RS) he was carrying drugs when he arrive at LaGuardia Airport from Miami. When D refused consent to search his bags, police took bags to JFK for ‘dog sniff’ which indicated presence of drugs. 90 minutes elapsed between seizure of suitcase and dog sniff.
Extension of Terry Doctrine:
When police reasonably suspect that luggage contains drugs, the police may seize the luggage temporarily to conduct an investigation designed to confirm or dispel that suspicion.
Permissible length of the detention of effects depends on intrusiveness of seizure
When luggage is possession of airline passenger, its seizure interferes with both the suspect’s possessory interest in the luggage, and the suspect’s liberty interest.
The seizure of luggage in possession of airline passenger must be measured by same standard that would govern seizure of the person.
Here, detention of Place’s luggage exceeded scope of permissible investigative detention
Court: The length of detention alone precludes the conclusion that the seizure was reasonable in absence of PC.
In assessing the length of the detention, we take into account whether the police diligently pursue their investigation. The police had ample time to arrange for the dog sniff, which would have minimized the intrusiveness of investigation.
Illinois v. Caballes: After D was stopped for speeding, one officer issued ticket while another officer walked drug dog around car. After dog alerted to trunk, officers searched and found marijuana.
Holding: Seizure was lawful. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.
Michigan v. Long: Police observed D’s car travelling erratically and then swerve into ditch. Long did not immediately respond to request for papers and appeared to be under the influence. When D moved toward open door of car, PO followed and noticed hunting knife on floorboard. PO then shined flashlight in passenger compartment to check for weapons and discovered pouch containing marijuana. More marijuana was later discovered in trunk.
Holding: The protective search of the passenger compartment of respondent’s car was reasonable. Principles outlined in Terry also apply to the passenger compartment and trunk of a vehicle if the officer has a reasonable suspicion that a person may be armed and dangerous.
In Terry, the Supreme Court held that there was a valid protective search for weapons in the absence of probable cause to arrest because it was unreasonable to deny a police officer the right “to neutralize the threat of physical harm,” when the officer possesses a reasonable suspicion that an individual is armed and dangerous.
SILA?
Auto exception?
Protective “frisk” of passenger compartment of car permissible on RS that suspect: (1) is dangerous, and (2) may gain control of a weapon
Scope limited to places where a weapon that could be used against officerscould be concealed.
Minnesota v. Dickerson: Police stopped Dickerson after he was seen leaving “notorious crack house” and then walking in opposite direction after seeing police. During pat-down, PO felt lump in jacket pocket. After examining lump through jacket by sliding it between his fingers, PO determined it was crack, and removed it from D’s pocket.
A protective search of the person based on RS must be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others
Here, the officer’s continued exploration of D’s pocket after having concluded that it contained no weapon was unrelated to the sole justification of the search. It amounted to an unauthorized search for evidence.
Plain Touch:
Legitimate contact with the object — reason to touch
Incriminating character of the object is immediately apparent — PC
Lawful right of access to the object
Maryland v. Buie: Buie arrested inside his house for armed robbery of Godfathers Pizza. After D emerged from basement and was arrested, PO entered basement where he seized a red running suit that was in plain view.
As incident of arrest inside arrestee’s house, police may conduct:
(1) Precautionary search, without PC or RS, of closets and other spaces immediately adjoining place of arrest from which attack could be launched
(2) Protective sweep of entire house if police have RS that the house harbors individual posing dangers to officers.
Pennsylvania v. Mimms:
Mimms Rule: Because of danger posed by suspects stopped inside cars, police may routinely order driver out of the car whenever car has been lawfully stopped. Authority to require driver to exit car does not require any suspicion of dangerousness.
Maryland v. Wilson: Mimms Rule extended to passengers.
DUE PROCESS AND CONFESSIONS
Brown v. Mississippi: Defendants were convicted on April 5 of murder committed on March 30 and sentenced to death. The defendants confessed after being hung from a tree and whipped. Apart from defendants’ confessions, there was not sufficient evidence to submit case to the jury.
Court Holding: A defendant’s confession that is extracted by police violence cannot be entered as evidence and violates the due process clause of the Fourteenth Amendment.
Ashcraft v. Tennessee: Zelma Ashcraft was found murdered in her car. Her husband was taken into custody at 7 pm on Saturday and questioned continuously until 9:30 Monday morning. A confession made by Ashcraft at 6:00 Monday morning was introduced at trial.
Court holding: The confessions obtained in this case were made involuntarily under the totality of the circumstances test used in evaluating due process violation claims. He was held for a day and a half straight without sleep or rest, or the ability to talk with anyone.
Justice Jackson dissent:
Spano v. New York: After speaking to childhood friend (Bruno) who was in police academy, D surrendered to DA for murder. On advice of attorney, D refused to answer questions until Bruno told him that his refusal to cooperation jeopardized Bruno’s job.
Voluntariness Determined Based on All the Facts
Personal characteristics: foreign born; no experience with official interrogation; little education; history of emotional instability
Official pressure from massive questioning by several different questioners
Fatigue resulting from length of interrogation and time of night
Manipulation of Spano’s sympathies by Bruno’s lies
Effect of denial of requests to meet with attorney.
Police Deception Voluntary or Involuntary:
Lynum v. IL: D’s confession found involuntary after she was told that if she cooperated she not be prosecuted for weed sale but if she didn’t she would face 10 years in prison and have her children taken away
Leyra v. Dennis: Court found confession voluntary despite police lie that accomplice had confessed.
MIRANDA RIGHTS (Miranda v. AZ)
5th Amendment right against compelled self incrimination applies to stationhouse interrogation
Custodial interrogation creates inherent compulsion to speak
Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statements obtained from the defendant can truly be the product of his free choice. Miranda v. AZ
Miranda Rights:
Prior to Any Questioning the Person Must Be Informed that He Has:
The right to remain silent;
Any statement he does make may be used against him;
He has the right to an attorney present during interrogation;
If he cannot afford an attorney one will be provided
The Defendant may waive these rights provided the waiver is knowing and voluntary.
New York v. Quarles: Police apprehended and frisked D inside store because he matched description of armed rape suspect. Upon discovering that D had empty shoulder holster, officer asked, “where’s the gun.” D revealed the location of gun, which was recovered by police. D was then given Miranda warnings and made additional statements.
Miranda does NOT require suppression of statements in response to questions that are reasonably prompted by a concern for public safety.
(1) Threat to safety of police or public
(2) Question reasonably prompted by concern for public safety
The availability of this exception does NOT depend on the actual motivation of the officer asking the question.
Miranda Exclusionary Rule
The only consequence of a violation of Miranda Rights is the exclusion of statements obtained in violation of Miranda
I.e. statements stemming from custodial interrogation without warnings and waiver.
Secondary fruits of Miranda violations are NOT subject to exclusion
A violation of the Due Process/5th Amendment Requires exclusion of both primary and secondary fruits of violation.
CUSTODY AND INTERROGATION
Custody for Purposes of Miranda Warnings
Berkemer v. McCarty: Police stopped D’s car when it was seen weaving. When D had difficulty walking and failed balancing test, PO decided D would be taken into custody, but did not tell D. While at the scene PO asked D whether he had used intoxicants. D said two beers and joints. D was then taken to station where he made further incriminating statements. He was not given warnings.
Custody when questioned on side of road or Custody when Questioned at station?
In defining what constitutes custody for purposes of Miranda warnings, it is necessary to consider the concerns underlying the rule.
Whether a person stopped for a traffic violation is in custody depends on whether a traffic stop “exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.
Warnings are required regardless of nature or severity of offense.
Miranda doctrine applies to misdemeanors
The safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’ Custody is arrest or functional equivalent.
A traffic stop, or Terry stop, is not custody requiring Miranda warnings.
The only relevant inquiry is how reasonable person in suspect’s position would have understood his situation.
Oregon v. Mathiason: PO left note for parolee stating he wanted to discuss something. Parolee called the officer and arranged to meet at station. When D arrived he was told he was not under arrest. Later the officer falsely stated that the D’s prints had been found at scene of burglary. D then confessed.
Custody for purposes of Miranda?
No indication that the questioning took place in a context where respondent’s freedom to depart was restricted in any way. He came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of a 1/2-hour interview respondent did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody ‘or otherwise deprived of his freedom of action in any significant way.’
Any interview of one suspected of a crime by a police officer will have coercive aspects to it
Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him in custody.
US v. White: While driving his 9 yr old son to football practice, White was pulled over by police because baby shoes were hanging from his rearview mirror. Without being told the reason for the stop, White was ordered out of his car, handcuffed, and moved to the rear of his vehicle toward the cruiser driven by the PO. While in handcuffs and without having been given any explanation from PO about what was going on, White was asked by one PO whether he had “anything illegal” in his car. He responded he had a joint in his pants.
Holding:
Rhode Island v. Innis: D arrested for murder after being identified by cab driver as person who robbed him with shotgun. Upon being advised of Miranda warnings, D said he wished to speak with lawyer. While riding in patrol car with three POs D informed police of location of murder weapon when officers expressed concern about danger to local handicapped from shotgun.
Since Innis invoked his right to counsel, police may not interrogate him without his lawyer present. Therefore, if the actions of the police constituted interrogation, the statement must be excluded.
Miranda Interrogation
The Miranda opinion shows that the court was concerned with the coercive effect of practices that did not involve direct questioning.
Interrogation must reflect a measure of compulsion beyond that inherent in custody itself.
Interrogation is “express questioning” or “functional equivalent” of express questioning
Need not be in form of a question
Interrogation includes words or actions on the part of police that they should have known were reasonably likely to elicit an incriminating response
Whether the officer’s actions are reasonably likely to elicit incriminating response focuses on perceptions of the suspect
A police practice that is designated to elicit an incriminating response is probably interrogation
Consistent with Miranda’s concern with preventing suspects from being compelled to incriminate themselves, the test for interrogation focuses on the likely effect of the police practice on the suspect
Police conduct, that is not direct questioning, constitutes interrogation if it operates like a question in having the effect of calling for a response.
Illinois v. Perkins: Upon learning that defendant had confessed to murder to fellow inmate, police placed undercover PO in defendant’s jail cell. During discussion of planned escape, undercover asked whether he had ever “done anyone.” D gave detailed account of murder.
Miranda warnings are NOT required when an undercover agent is asking questions that could elicit an incriminating result
The Fifth Amendment privilege versus self-incrimination is not implicated when a suspect is not aware they are speaking to law enforcement, and then gives incriminating statements, thus admit the statements into evidence
There is no convergence here between custody and official interrogation, thus admit the statements made to the undercover agent.
This is different from the situations where Miranda warnings are necessary since the suspect was motivated only by his desire to impress his fellow inmates, had no reason to think that the agent had legal authority to force the suspect to give testimony, and showed no signs of being intimidated.
Sixth Amendment right to counsel concerns do not apply since no charges had been filed at the time of interrogation.
WAIVER AND INVOCATION
THE EXCLUSIONARY RULE
Weeks v. United States: Federal agents entered D’s house without a warrant and seized papers and other articles. At D’s trial on federal charges of using the mail to transport illegal gambling materials, the trial court admitted lottery tickets and other papers seized during search as evidence of D’s commission of the crime.
Court: The effect of the 4th Amendment is to put the courts of the US and Fed officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law.’
The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures… should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution.
Mapp v. Ohio: Police seized obscene pictures in illegal search of D’s house. Trial court admitted pictures at D’s trial for illegal possession of obscenity.
The Supreme Court overruled that part of Wolf that held the states are not required to apply the exclusionary rule to Fourth Amendment violations.
Exclusionary rule is designed to deter violations of the fourth amendment by removing the incentive for illegal searches and seizures.
Two understandings of the exclusionary rule:
(1) The 4th (14th) Amendment includes a right against judicial use of illegally seized evidence. The 4th (14th) Amendment prohibits both unreasonable searches and judicial use of the fruits of illegal searches
(2) The exclusionary rule is a preventive remedy for fourth amendment violations. Purpose of the rule is to deter police from future violations of 4th Amendment.
Current understanding of exclusionary rule emphasizes deterrence
The rule is a judicially created remedy/deterrent designed to safeguard fourth amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.
Exclusion is not a constitutional command, but depends on a balancing of the deterrent impact of exclusion against the costs.
Exclusionary Rule Rationale (Deterrence)
Hypo: Police apply for a warrant to search A’s house. Judge approves the warrant. Police execute the warrant and seize evidence. At suppression hearing trial court determines that the warrant was not supported by probable cause. Was evidence obtained in violation of the 4th Amendment? Should it be suppressed?
Would this deter future police violations?
Judge approved it, so they are relying on Judge’s affirmation of PC. May not be a deterrence for future violations?
The Standing Doctrine
The Standing doctrine answers the question who is entitled to claim a constitutional violation in court.
Fourth Amendment rights are personal; one person cannot assert a violation of the Constitutional rights of someone else.
Exclusionary rule is remedy to 4th amendment violation ONLY to the person who was violated.
US v. Payner: As part of investigation of depositors at Castle Bank, IRS agent instructed private investigator to surreptitiously search Bank VP’s briefcase and copy documents relating to bank customers, including Payner.
District court found that the Government affirmatively counsels its agents that the 4th amendment standing limitationpermits them to purposefully conduct an unconstitutional search and seizure of one individual in order to obtain evidence against third parties.
Rakas v. Illinois: Police stopped car in which defendant was passenger based on PC to believe that the car had been used as a getaway car during commission of recent robbery. During a search of the car, police discovered shells in locked glove compartment, and shotgun under seat.
Search occurred when police searched car since cars generally have reasonable expectation of privacy. HOWEVER, there was no SEARCH OF RAKAS because he had no standing. Rakas did NOT have a reasonable expectation of the place that was searched, since he was a passenger (merely a guest), not owner of the car.
The court decided whether Rakas had standing to challenge the search of the car in which he was riding.
Test for Standing after Rakas is whether the person who claims the protection of the 4th amendment has a legitimate expectation of privacy in the place invaded.
Test for standing is the same as the test for the occurrence of a 4th amendment “search”
Standing question is indistinguishable from question whether there was a search; no point in treating standing as analytically distinct concept
BUT, standing should still be addressed separately, since there may have been a search, but the D seeking suppression lacks standing.
Standing Hypos
Would non-owner have standing if driving car w/o owner but with owner’s permission?
Yes there will be standing, because he has (at the time) dominion of control over the car.
Would car owner have standing to contest the search, if someone else was driving and police found drugs belonging to owner?
Yes, there will be standing because owner only temporarily gave car to someone else.
Would a passenger have standing if the passenger was spouse of owner?
Facts specific here. Some couples share everything while other couples are more private between each other.
In cars, spousal passengers generally have standing.
Would a passenger have standing to contest search of a car if she was traveling with the owner on a weeklong trip?
Would passenger who is unrelated to owner have standing to contest search of locked briefcase on backseat of car?
What if rental car?
Yes standing.
Rawlings v. Kentucky: Defendant challenged search of Vanessa Cox’s purse where D had put his drugs when police entered to search house where they were staying.
Facts: D had known Cox only a few days; no prior access to her purse; no right to exclude others from Cox’s purse; Defendant’s ownership of drugs does not establish standing to challenge search
Defendant had no reasonable expectation of privacy in Cox’s purse.
Person who has a possessory interest has standing.
Standing for Search of House
Minnesota v. Carter: Police looked through gap in closed blind of ground floor apartment and saw Ds bagging cocaine. Ds were in apartment for 2.5 hours. Occupant had allowed use of apt in exchange for drugs. Based on observations, PO arrested Ds when they drove away from the apt.
4th amendment search when looking through blinds?
Accessible to the public?
Here, the court held that the evidence need not be suppressed regardless of whether the police violated the 4th amendment.
Do people ever have reasonable expectation of privacy in other people’s houses?
“Legitimately on premises” does not confer standing
O’Conner v. Ortega: Workers sometimes have expectation of privacy in workplace
Minnesota v. Olson: an overnight guest has a legitimate expectation of privacy in his host’s home
Jones v. US: D had standing where resident not present; D had key and permission to use; Kept clothing in closet.
Here, the purely commercial nature of the transaction, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder, all lead to the conclusion that Carter’s situation iscloser to that of one simply permitted on the premisesthan of an overnight guest.
Who would have standing to seek suppression of evidence obtained in violation of an illegal search of house?
(1) An overnight guest;
(2) A social guest;
(3) A pizza delivery man (commercial);
No, because no dominion over area, commercial purpose, no previous connection to homeowenr, short period,
Standing to “almost all social guests”
Here, Carter did not fall into Kennedy’s category of social guests because he had only a “fleeting and insubstantial connection with Thompson’s home.”
Problem 14A-2: Lorenzo went to his brother’s house at 7:00 p.m. to watch his brother’s son while he went to the store. He wasn’t planning to spend the night. While Lorenzo was in the living room, police entered the house w/o a warrant, and found drugs during search of two bedrooms. THey also found evidence linking the drugs to Lorenzo. Lorenzo hadn’t been in the bedrooms that evening.
Does he have standing to challenge the searcH?
Problem 14A-4: Robert went with Jerome to a club, but when Jerome made other plans Jerome arranged for Julian to drive Robert home. Robert was riding in back seat of car driven by Julian when car was illegally stopped by police. Upon approaching the car, police found gun on floor under driver’s seat. Police ordered occupants out of car and searched it. They found a second gun on front seat, two guns on the floor of back seat itself. Robert was charged with possession of guns found on the back seat.
Does Robert have standing to challenge the search?
Note: Seizure of yourself = standing (very simple). Ask whether the seizure was legal.
Standing in Other Contexts
Can a third party claim standing to exclude a statement obtained in violation of the Miranda Doctrine?
No, cannot claim the violation of someone else’s right.
Can a third party claim standing to exclude a statement obtained in violation of the Sixth Amendment right to counsel?
No, cannot claim the violation of someone else’s right.
Can a third party claim standing to exclude a statement that was coerced in violation of the due process clause?
Possibly, for coerced confessions, but no current rule yet.
THE EXCLUSIONARY RULE:
Fruit of the Poisonous Tree Doctrine
“Poisonous tree” = illegal police conduct (initial illegality)
“Fruit” = primary/direct or secondary/derivative evidence obtained through police illegality
Doctrine requires suppression of fruit of the poison tree
Direct and secondary
Limits on Fruit of Poisonous Tree Doctrine
Independent source for the evidence
Inevitable discovery of evidence
Attenuated causal chain between illegal police action and evidence
Police acted in good faith reliance on facially valid warrant or on mistaken information about warrant or state of the law.
Independent Source Doctrine
Silverthorne Lumber v. US
If certain facts are discovered illegally, but “knowledge of them is also gained from an independent source,” those facts may be proven like any others.
Evidence is excluded but for the violation of the 4th amendment, the evidence would not have been discovered.
Murray v. US: After surveilling Murray and Co-Ds, Fed drug agents stopped truck leaving D’s warehouse. The truck contained MJ. The agents then forced entry into warehouse, where they observed bales of MJ. Agents left warehouse, without disturbing MJ, and applied for warrant, which was issued 8 hours after entry. Warrant application did NOT rely on info acquired through entry into warehouse. Agents executed warrant and seized drugs.
Main question is, would they have discovered the MJ without the illegal conduct?
Here, police violated the 4th amendment when they entered the warehouse without a warrant.
Independent source: Applies when, although the police have acted illegally, the evidence at issue was discovered through lawful means that are wholly independent of the police illegality.
Discovery through independent source can occur in two different ways:
(1) When the evidence is first discovered through lawful means;
(2) When the evidence is first discovered unlawfully and then evidence is second discovered lawfully.
Segura v. US: Police apply for warrant to search apt. Before warrant is issued, police unlawfully enter apt. During unlawful entry, police observe drugs in plain view on table, but do not search further. Later, a search is carried out pursuant to warrant, and other evidence–a ledger–is discovered in bedroom.
Is the ledger found in bedroom the FPT?
But for the 4th amendment violation the evidence would not have been discovered:
Court: Here, notwithstanding the illegal entry into the apt., the discovery of the ledger was through an independent source and thus not excluded.
The discovery of the ledger was not a but for consequence of the initial illegal entry. In other words, it would have played out the same even if the police entered lawfully.
In order to establish that the search warrant was based on a source independent of the illegal entry, the prosecution had to demonstrate:
(1) that the judge’s decision to issue the warrant was not influenced by the illegal search; and
(2) that the police’s decision to apply for the warrant was not influenced by the illegal search.
Inevitable Discovery Doctrine:
Brewers v. Williams: Williams abducted 10 year old girl from YMCA in Des Moines on Christmas eve. 2 days later, Williams’ lawyer contacted Des Moines police and said Williams prepared to surrender. Williams was arrested and arraigned in Davenport. At the time he was represented by one lawyer in Des Moines and another lawyer in Davenport. On route to Des Moines, PO delivered “Christian Burial Speeech,” and Williams made statements directing police to victim’s body.
Court held that the admission at trial of Williams’ statement leading the police to the victim’s body were obtained in violtaion of his Sixth Amendment right to counsel
Nix v. Williams: Retrial of Brewers
Even though evidence was discovered as a result of constitutional violation, it may still be admissible if the same evidence would inevitably have been discovered through lawful means.
Prosecution must prove by preponderance of the evidence that the evidence would have been discovered by lawful means
“Hypothetical independent source”
Must be proved with actual evidence
I.e. actions that are underway; evidence that police had plan that would have been put into effect
Rationale for the Inevitable Discovery Doctrine
Deterrence requires that police not profit from illegality; does not require that police be punished; if the evidence were excluded, police would be in worse position than if the violation had not occurred
Difference between independent source and inevitable discovery doctrines:
Was the evidence actually discovered of lawful means independent of the violation of the constitution, if yes = independent source
Problem 14B-7
Step 1. Find causality related to discovery of evidence
Here he was seized when he was pulled over.
Pulling over lead to discovery of gun
Step 2. Analyze whether those searches or seizures were lawful
Here the pulling over is lawful seizure because traffic violation stop, therefore this seizure cannot be basis for suppression of evidence
Good Faith Exception (to exclusionary rule)
US v. Leon: Following an extensive investigation into possible drug activity at three residential addresses, police obtained search warrants for those houses. Prior to trial the Defendants filed motions to suppress evidence seized during searches pursuant to those warrants. The trial court found that the information contained in the warrant application did not establish PC, and suppressed the evidence.
Were constitutional rights violated when obtaining the evidence?
Yes, because the warrants were not valid because it was not supported by PC (per judge).
Rationale for the Good Faith Exception
You cannot, and need not, deter a police officer from acting in objectively reasonable manner; it is not necessary to punish police for doing what they are supposed to do
Here, they applied for warrant, got warrant approved by magistrate, believed it was correct. Thus, this wouldn’t deter any police conduct because the PO did nothing wrong.
Requirements for Good Faith Exception
The evidence was discovered during a search under a facially valid warrant
A reasonably well-trained officer would have believed that the warrant was valid
Expansion of Good Faith
Illinois v. Krull held that the good faith exception applied to searches conducted in reasonable reliance on statutes that had been invalidated.
Arizona v. Evans applied the exception in a case where the police reasonably relied on erroneous information concerning an arrest warrant in a database maintained by judicial employees
Herring v. US: Upon learning that Herring had gone to police impound lot to retrieve something from his truck, police requested a check of computer records for outstanding warrants. The records of a neighboring county showed that there was a warrant for Herring for failure to appear on a felony charge. When informed of the existence of a warrant, police arrested Herring. A search incident to the arrest revealed meth and a gun. It was later determined that the warrant had been recalled.
Arrest was illegal (no warrant, and no PC)
Holding: When officers from one jurisdiction engage in an unreasonable search or seizure in reasonable reliance on an isolatednegligent error made by police in another jurisdiction regarding the existence of a warrant, the evidence obtained is admissible under the good faith exception
General Principles Governing Application of the Exclusionary Rule:
Exclusion of illegally obtained evidence is justified only when the deterrent value of exclusion outweighs the cost in lost convictions
The extent to which the exclusionary rule is justified by deterrence principles varies with the culpability of the law enforcement conduct
To trigger the exclusionary rule, police conduct must be deliberate, reckless, or grossly negligent, or in some circumstances a result of recurring or systemic negligence.
This is based on an objective inquiry–whether a reasonably well trained officer would have known that the search was illegal.
New Jersey v. Handy: Officer Drogo stopped Germaine Handy for riding his bicycle on the sidewalk, in violation of a city ordinance. In response to Drogo’s questions, Handy spelled out his name and gave his address–218 E Broad St. Millville, NJ and his DOB-3/18/74. Drogo recorded Handy’s info and radioed police dispatch with Handy’s name and date of birth for a warrant check. The police dispatcher informed Drogo that there was an outstanding warrant for Handy. Drogo arrested Handy and recovered drugs during a SILA. It was later determined that the warrant was 10 years old for a person named Jermaine Handy with a DOB of 3.14.74 and address in Los Angeles.
Is the evidence seized from Handy admissible under Herring?
The court said in Herring, that by negative implication, recurring or systemic negligence, that is if the police officer or employees who maintain the comp database had recurring incidents of incorrect information then the good faith exception will NOT apply.
Under Herring, good faith exception does not apply because the dispatcher was grossly negligent.
Even if PO was completely free of misconduct
ATTENUATION
Wong Sun v. United States: Hom Way told police that he received heroin from James Toy. Police illegally entered Toy’s house and arrested him. Toy told police that Yee had heroin. Police then went to Yee’s house, where they seized heroin. Yee said he received drugs from Wong Sun. Yee took police to Wong Sun’s residence, where he was arrest. Toy, Yee, and Wong Sun all arraigned and released. All three returned to station after several days and made incriminating statements after being advised of rights.
Sequence of events:
1. Police search Hom’s house without warrant and arrest him without PC
Incriminating statement at house
2. Police illegally enter Toy’s house and arrest him without PC
Incriminating statement at house
Incriminating statement at station
3. Police illegally enter Yee’s house and arrest him without PC
Incriminating statement at house
incriminating statement at station
Heroin
4. Police illegally enter Sun’s house and arrest him without PC
Incriminating statement at house
Incriminating statement at station
Court held that Toy’s statements and the discovered drugs at Jonny’s should both be excluded as fruit of the poisonous tree because the search was done without a warrant.
Wong Sun’s lawyer argued that Wong Sun’s confession should also be excluded as fruit of the poisonous tree. Wong Sun’s statement was ruled admissible because he had no standing to move to suppress the evidence found in Jonny’s apartment. Wong Sun was granted a new trial, but his confession was admissible.
Brown v. Illinois: Police officers broke into defendant’s apartment without PC or warrant while defendant was away. After searching the apartment, the officers waited in the pat until defendant returned, and arrested him at gunpoint for murder. They did not have PC for the arrest. Defendant was taken to police station where, after waiving his Miranda rights, he made two incriminating statements–one approximately one hour after arrest and another six hours after arrest.
The Court rejects the argument that Miranda warnings are in themselves sufficient to attenuate (reduce the effect of) the taint of the illegal arrest.
The question of attenuation is largely a matter of degree.
Court held that under the rule of Wong Sun, a Miranda warning is an important factor in determining whether the confession is obtained by exploitation of an illegal arrest. In the matter at hand, the first statement came less than two hours after his illegal arrest, with no intervening event of significance whatsoever. The arrest appeared to have been calculated to cause surprise, fright, and confusion.
Attenuation Factors:
Administration of Miranda Warnings
Time lapse between initial illegality and acquisition of evidence
Intervening events between the illegality and the acquisition of the evidence, e.g., meeting with lawyer, appearance before judge
Flagrancy of the constitutional violation
A flagrant violation results in “greater poison” and is harder to purge than a good faith mistake.
Court in Brown v. Illinois held that Brown’s second statement was inadmissible because:
The second statement was clearly the result and fruit of the first
The fact that Brown made on statement, believed by him to be admissible, bolstered the pressures for him to give the second, or at least vitiated any incentive on his part to avoid self-incrimination.
US v. Ceccolini: Without PC or a warrant, PO opened envelope on the counter of Defendant’s place of business. Inside the envelop were ‘policy slips’ and evidence of gambling activity. Officer asked employee who the envelope belonged to. Employee named defendant. When employee later called as witness at defendant’s trial, defendant claimed that witness’s testimony should be suppressed as fruit of unlawful search.
Court: The exclusionary rule should be invoke with much greater reluctance where the claim is based on a causal relationship between violation and discovery of live witness than when similar claim is advanced to support suppression of inanimate object.
HELD: Even though the witnesses’ identity was discovered as a result of illegal search, her testimony is not excluded because even though there was a causal connection b/w the initial illegality and testimony, the taint had been dissipated.
KEY POINTS: When dealing with live witnesses, the attenuation analysis is different, there needs to be a closer connection to exclude.
New York v. Harris: Defendant arrested inside home with PC but without arrest warrant. He made incriminating statements both inside his home and at police station.
Where the police have PC to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by a defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton (doctrine).
Hudson v. Michigan: In executing search warrant for drugs and guns, police entered within seconds after knocking and announcing.
Attenuation also occurs when even given a direct causal connection between the fourth amendment violation and the discovery of the evidence, the interest protected by the constitutional guarantee that has been violated would not be served by suppression.