Basic concepts of Criminal Procedure and Police Investigations

Purpose of Police
 To protect
 Serve to community
 Enforce the rule of law
 Protecting and serving; leading to enforcement
 Product of police enforcement
Evidence
 Primary forms of evidence (3)
o Testimonial evidence (eye witness)
o Physical evidence
 Fourth amendment issues
 First part of class primarily
o Defendant’s statements
 Second part of class primarily
 Difference between admission and confession
o Admission: stipulate to a fact (may be incriminating)
o Confession: admitting that you did the crime
Sources of Limitations on Police Conduct
 Due Process
o Due process is analyzed under the 14th Amendment
o 4th amendment applied to the states through the 14th Amendment
o Mutually exclusive from 4th, 5th, 6th amendments in criminal procedure
 State Constitutions
o State Supreme Court decide whether to apply the State constitution or
use the US constitution (lockstep: when State supreme Court uses
federal constitution over state constitution)
 Illinois typically does not look to the state constitution
4th Amendment
A. Text: “The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.”
B. Does the Fourth Amendment apply?
1. Is the conduct governmental (as opposed to private)?
a. To implicate the Fourth Amendment, there must be government action.
Government action may consist of actual police activity or private
individual activity at the direction or as an instrumentality of the
government. In determining whether a private individual is acting at
the direction or as an instrumentality of the government, the following
should be considered: (1) the degree to which the government
acquiesced, encouraged, and supported the private individual’s
activity and (2) the private individual’s underlying motivation (i.e.,
 was the individual pursuing his own interests or the government’s
interests?).
1. It must be noted, however, that where the government extends the
private search in a substantial way, an otherwise purely private search
isolated from the Fourth Amendment may be transformed into one
subject to constitutional limitations

 Standing Requirement: A defendant in a criminal prosecution may not raise

a claim of a Fourth Amendment violation unless he, personally, is the
purported victim of the unreasonable search or seizure.
o A defense attorney must initially demonstrate that his client — and
not, instead, someone else — was the victim of the unreasonable
search or seizure.
 Protects privacy and liberty
o Privacy not in constitution, located in the penumbra of rights that are
based on the guaranteed rights of the 4th
o These will be the only concepts we deal with in the 4th Amendment
until
o If neither liberty nor privacy are implicated, then no 4th Amendment
violation.
o If 4th amendment not implicated, then exclusionary rule doesn’t apply

 “Searches and seizures”

 Searches and seizures occur in an almost infinite variety of
ways: for example, by stopping (“seizing”) a suspect on the
street and frisking her (“searching”) for weapons or evidence;
by entering a house in order to look for a suspect or evidence
of a crime; by opening containers found in an automobile
stopped on the highway; and by wiretapping in order to
monitor the conversations of suspects.
o Unreasonable Searches implicate privacy
  Rochin v. California
 Facts: A man suspected of swallowing morphine
capsule during a police search was forced to go to a
hospital and have his stomach pumped
 Rule: The use at trial of evidence obtained by conduct
that "shocks the conscience" violates due process.

o Unreasonable Seizures implicate Liberty

 Unreasonableness is determined by the facts of each case
Privacy
Privacy  Search 4th Amendment
 Privacy defined: A reasonable expectation of privacy
Privacy Test: It must be a reasonable expectation of privacy
 Part 1: Subjective (mindset of defendant) Manifest that there is a
expectation of privacy.
o If defendant does not manifest expectation of privacy, there is no
search, and no 4th amendment violation
 An individual does not have a reasonable expectation of
privacy where he voluntarily conveys information or property
to a second individual, because he implicitly assumes the risk
that the second person will expose it to the public or the police.
This is known as the “voluntary-conveyance-to-another-
party” rule.
o Example: Locking your doors and closing blinds, you expect that no
one can see into or enter into your house
 Part 2: Objective (mindset or view of society as a whole)  Society
o Would society view this as an invasion of privacy?
 Katz v. United States
o Facts: Charles Katz used a public pay phone booth to transmit illegal
gambling wagers from Los Angeles to Miami and Boston.
Unbeknownst to Katz, the FBI was recording his conversations via an
electronic eavesdropping device attached to the exterior of the phone
booth. Katz was convicted based on these recordings. He challenged
his conviction, arguing that the recordings were obtained in violation
of his Fourth Amendment rights.
o Rule: The Court extended the Fourth Amendment protection from
unreasonable search and seizure to protect individuals with a
"reasonable expectation of privacy"
 "The Government's activities of electronically listening to and
recording the petitioner's words violated the privacy upon
which he justifiably relied while using the telephone booth and
thus constituted a 'search and seizure' within the meaning of the
Fourth Amendment."
 Regardless of the location, a conversation is protected from
unreasonable search and seizure under the Fourth Amendment
if it is made with a "reasonable expectation of privacy".
 4th Amendment protects: (they are explicitly stated)
 Persons
 Papers
 Houses
 Effects- covers almost everything; pets, property etc.
 Curtilage: Fourth Amendment does not necessarily protect an open field,
which is distinguishable from curtilage of a home, as there is no reasonable
expectation of privacy. Oliver v. United States.
o The factors to consider in determining whether land is within the
curtilage are:
 (1) the proximity of the land to the home,
 (2) the area is included within enclosures surrounding the home
 (3) the nature of the use to which the area is put; and
 (4) the steps taken to protect the land from observation.
(1) *Note: The Fourth Amendment protects people and not places, and
therefore it is no longer considered solely a property concept. Katz
v. United States.
Trespass is a physical invasion; (only in context of 4th amendment)
 A trespass is not enough alone to justify a fourth amendment violation
 For trespass to be an invasion of privacy:
o Must be a Trespass is one of the four items in the
4th amendments (persons, papers, effects, house);
&
o And be conjoined with an attempt or effort to
seek information
 United Stats v. Jones
o Facts: Federal agents placed a GPS device on Jones car and tracked his
movements for four weeks, on a 24hr basis, which led to a drug
conviction. Jones wanted the evidence excluded due to a violation of
4th Amendment invasion of privacy
o Rule: The Government's attachment of the GPS device to the vehicle,
and its use of that device to monitor the vehicle's movements,
constitutes a search under the Fourth Amendment.
 It was said that the placing of the GPS device on the car was a
physical invasion
 His car was considered his personal effects, thus an invasion of
privacy specifically prohibited by the 4th Amendment
End of Privacy

Liberty
Liberty interest Seizure 4th
Liberty goes toward freedom of Movement
 a person is seized within the meaning of the Fourth Amendment only when,
by means of physical force or show of authority, his freedom of movement is
restrained and, in the circumstances surrounding the incident, a reasonable
person would believe that he was not free to leave. United States v.
Mendenhall
 Infringement on your right to avoid or ignore officers
 *You are free to leave an officer until you are not
 If police have a substantial justification then their infringement is ok
o But the more you have an interference with a liberty,
the more justification the police need
Analysis of seizure
 Start out and ask if it is a seizure
 Then figure out what type of seizure
 You need both accosting and restraining
o Accosting: (goes to officer using physical force or a show of
authority)
 Approach (like an officer approaching a person and asking
them a question)
o Restraining: Forbid for leaving (from perspective of a reasonable
person)
 Like a cop physically holding you back from leaving by
putting you against a wall or even verbally

 Terry v. Ohio
o Facts: A police officer observed Terry and two other men allegedly
casing a store to rob. The officer went confronted the men, suspected
they were armed and searched by feeling the outer layer of the
garments. Officers found a gun on Terry, which Terry wanted
excluded
o Rule: Police may stop a person if they have a reasonable suspicion that
the person has committed or is about to commit a crime, and may frisk
the suspect for weapons if they have reasonable suspicion that the
suspect is armed and dangerous, without violating the Fourth
Amendment’s prohibition of unreasonable searches and seizures.
 Some police action short of a traditional arrest could constitute
a seizure—that is:
 "Whenever a police officer accosts an individual and
restrains his freedom to walk away, he has 'seized' that
person."
 But the Fourth Amendment protects only against unreasonable
searches and seizures
 Must ask: "Would the facts available to the officer at
the moment of the seizure or the search warrant a man
of reasonable caution in the belief that the action taken
was appropriate?"
  This is an objective test
 "[I]n justifying the particular intrusion the police officer
must be able to point to specific and articulable facts
which, taken together with rational inferences from
those facts, reasonably warrant the intrusion."
 Like they would if they asked for a warrant in
front of a magistrate
Note:
Seizures are progressive
Seizure has a two part test (need to know this)
 1. An officer must use either physical force;
 2. A show of authority
Example: A police officer walking up to and asking you for identification
Combine these two parts of the test with a restraint of liberty
  Florida v. Royer
o Facts: Detectives stopped and questioned respondent Mark Royer after
figuring out he fit the profile of a person transporting illegal drugs, and
then asked him to accompany them to a small room about 40 feet
away. Fifteen minutes later, he consented to search of his bags
o Rule: Police may not carry out a full search of a person merely but
appropriately suspected of criminal activity, nor may they seek to
verify their suspicions by means approaching that of a full-fledged
arrest. This detention (holding in a private room for 15 minutes) was a
more serious intrusion on his personal liberty than that is allowable
based on mere reasonable suspicion, as the least intrusive investigatory
means should be used in such stops.
 Since the detective’s actions are held to exceed the permissible
bounds of an investigative stop, the respondent’s consent to the
search of his suitcase is invalid, and the evidence found as a
result is the “fruit of the poisonous tree” and must be excluded.

Exclusionary Rule
Purpose of Rule: to deter police from naughty behavior
 Provides that evidence seized by the police in violation of the Fourth
Amendment may not be introduced by the government at the criminal trial of
the victim of the unreasonable search or seizure.
o If 4th amendment not implicated, then exclusionary rule doesn’t apply
 Primary 4th Amendment Remedy
 Depends on how the evidence was obtained (illegally obtained evidence)
 Remedy for a violation of the 4th Amendment
o Sometimes a remedy for 5th and 6th as well
 Two reasons to where the court has declined to apply the exclusionary rule
o "(1) where there is a specific reason to believe that application of the
rule would 'not result in appreciable deterrence,' or
o (2) where admissibility in proceedings other than criminal trials was at
issue"
o
 Mapp v. Ohio
o Facts: Police officers sought a bombing suspect and evidence of the
bombing at the petitioner, Miss Mapp’s (the “petitioner”) house. After
failing to gain entry on an initial visit, the officers returned with what
purported to be a search warrant, forcibly entered the residence, and
conducted a search in which obscene materials were discovered. The
petitioner was tried and convicted for these materials.
o Rule: All evidence discovered as a result of a search and seizure
conducted in violation of the Fourth Amendment of the United States
Constitution (”Constitution”) shall be inadmissible in State court
proceedings.
Exceptions to the Exclusionary rule
 Exception #1: Knock and announce rule
o Violation of this does not automatically exclude evidence
o Ex: Have a warrant for specific evidence but don’t execute knock and
announce rule fully, evidence may still be admitted because the
violation doesn’t relate to the evidence recovered. It was already
known to the police so the violation is not
o Bright line rule: (A rule that is laid out explicitly)
 Easier for police to follow
o Knock and announce is NOT a bright line rule
 It is not laid out explicitly
 It doesn’t say how loud the cops have to knock, how long you
have to wait, etc.
o Hudson v. Michigan
 Facts: On the afternoon of August 27, 1998, Officer Jamal
Good and six other Detroit police officers arrived at the
residence of Booker T. Hudson to execute a warrant
authorizing a search of Hudson's home for drugs and firearms.
Several officers shouted "police, search warrant," but then, in
accordance with Officer Good's policy in drug cases, waited
only "three to five seconds" before entering Hudson's home
through the unlocked front door.[1]
 Rule: A violation of the "knock-and-announce" rule by police
does not require the suppression of the evidence found during a
search.

 Exception #2: Good Faith

o When a police is not acting naughty, then the exclusion rule does not
apply
o Exception to the Good Faith exception
 Suppression is appropriate only if the officers were dishonest
or reckless in preparing their affidavit or could not have
harbored an objectively reasonable belief in the existence of
probable cause.
 If this happens then the exclusionary rules applies
o United States v. Leon
 Facts: A search warrant was issued to search the Respondent,
Leon’s (the “respondent”) residence wherein a large quantity of
illegal drugs was found. The affidavit upon which the search
warrant was issued was found to be insufficient on its face. The
evidence was suppressed at trial.
 Rule: Evidence obtained in good faith by police relying upon a
search warrant that subsequently is found to be deficient may
be used in a criminal trial.
 Exception # 3: Good Faith (upon a invalid statute)
o If an officer in good faith, abides by a statute that permits a warrantless
search, the exclusionary doesn’t apply
o Must be reasonable
o Exception to this exception
 If an officer unreasonably or in bad faith rely on invalid statute
then exclusionary rule applies
 It would be the defendant’s burden to prove this bad faith.
o Illinois v. Krull
 Facts: Police conducted a search of Krull’s (defendant)
business pursuant to a state statute that allowed law
enforcement to search licensed car and car parts sellers without
a warrant. The statute was found later to be unconstitutional.
The trial court admitted the evidence obtained pursuant to the
search. Krull appealed and the United States Supreme Court
granted certiorari.
 Rule: the exclusionary rule does not require exclusion of
evidence found as a result of a statute that is later ruled to
violate the Fourth Amendment.
 Exception #4: Good Faith (upon case law)
o If an officer acts in reliance on statute and while in the process of trial,
the law changes and makes their prior legal acts, illegal, so long as
there is good faith and a reasonable reliance upon the law then the
exclusionary rule does not apply.
o Rationale: Can’t deter someone who is acting in good faith and being
reasonable
o *Exception to the exception (not really an exception but just what the
court says how officers should act)
 There must be objective reasonable police activity
 If not then exclusionary rule can/will apply
o Davis v. United States
 Facts: Davis was arrested during a traffic stop. A cop searched
where Davis had been sitting in the car, the passenger side. The
cop searches the passenger compartment and found a gun in his
coat pocket. While Davis’ trial was still on going, the Supreme
Court in Arizona v. Gant ruled “search of a vehicle incident to
arrest requires either continuing threats to officer safety or the
need to preserve evidence.” Davis appealed his conviction
based on this.
 Issue: Whether searches conducted in good faith reliance on
binding precedent at the time the search is conducted are
subject to the exclusionary rule when the search is later deemed
unconstitutional?
 Rule: Searches conducted in objectively reasonable reliance on
binding appellate precedent are not subject to the exclusionary
rule.
 Exception #5: Attenuating (cutting off) Situations
o If you cut the chain (attenuate) of illegal seizure and statements,
exclusionary rule doesn’t apply
o Three factors that cut illegal seizures from statements:
 Timing
 Degree of police naughtiness
 Intervening factors
o Factors relevant to an attenuation analysis include:
 (1) The temporal proximity of the illegal police conduct and
the discovery of the evidence;
 (2) The presence of any intervening circumstances; and
 (3) The purpose and flagrancy of the official misconduct
o If there is no separation in the chain of illegal seizure and statement,
then exclusionary rule applies
o Brown v. Illinois
 Facts: Petitioner Richard Brown was arrested for murder,
without probable cause. He was taken to the station and
Mirandize twice. He confessed first after 90 minutes, and again
seven hours later
 Issue: Whether a Miranda warning sufficiently breaks the
causal chain between an illegal arrest and a confession.
 Rule: No. 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.”
 Reading of Miranda rights are not alone sufficient to
“cut off”
 Exception #6: Inevitable discovery exception
o If the prosecution can establish by A PREPONDERANCE OF THE
EVIDENCE that the information ultimately or inevitably would have
been discovered by lawful means, then the deterrence rationale has so
little basis that the evidence should be received.
 The evidence must be wholly separate from the illegal seizure.
o “Fruit of the poisonous tree”
 If the evidence comes from illegal seizure, then the evidence is
considered tainted
 If this is found true, then exclusion rule doesn’t apply
o The evidence must be wholly separate from the illegal seizure.
o Nix v. Williams
  Facts: Robert Williams, an escaped mental patient, kidnapped
and murdered ten-year-old Pamela Powers from a YMCA in
Des Moines, Iowa on December 24, 1968. He surrendered to
police two days later in another county on the condition that he
not be interrogated while being transported back to Urbandale.
One of the detectives began a conversation and proposed that
Williams reveal where he had left the body before an
impending snowfall; Williams agreed and led the detectives to
Powers' body.
 Rule: law enforcement was not required to demonstrate that it
had violated a defendant's rights in good faith, only that the
evidence would have inevitably been found despite the
violation.
 Exception number 7: Distinct Crime exception
o If a cop violates your constitutional right and charges you with a crime
but the reason the cop pursued you was from a different crime, you
cannot exclude that evidence. There is no chain from that crime to
poisonous tree. And you cannot resist an arrest, illegal or legal.

Fruit of the poisonous tree doctrine

 It’s an outgrowth (related) to the exclusionary rule
 If the source (the "tree") of the evidence or evidence itself is tainted, then
anything gained (the "fruit") from it is tainted as well.
 The doctrine is an extension of the exclusionary rule, which, subject to some
exceptions, prevents evidence obtained in violation of the Fourth Amendment
from being admitted in a criminal trial.
Test for Fruit of the poisonous tree (two part)
 From Wong Sun v. United States
o The question is “whether, granting establishment of the primary
illegality, the evidence to which instant objection is made has been
come at by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint.”
 1 Primary Illegality “poisonous tree”  violation of 4th or 5th
 2 Poisonous Fruit, exploitation of the primary illegality
o Attenuated (separate) illegality in two ways
 1. Cut it off
 2. Weakened
 You can weaken it or lessen it to the point that the
evidence doesn’t matter (it’s no longer poisonous.)
Exception to Fruit of Poisonous tree (evidence will not be excluded if):
 1. Evidence was discovered in part as a result of an independent, untainted
source;
 2. Evidence would inevitably have been discovered despite the tainted source;
  3. The chain of causation between the illegal action and the tainted evidence is
too attenuated; or
 4. The search warrant was not found to be valid based on probable cause, but
was executed by government agents in good faith (called the good-faith
exception).

Motions to Suppress (evidence) or quash

Stems from the exclusionary rule
  The purpose of the motion to suppress is to ask a judge to exclude certain
evidence that was improperly obtained. This is true even though that evidence
may be relevant and highly incriminating.
 Rule: "In order to effectuate the Fourth Amendment's guarantee of freedom
from unreasonable searches and seizures, this Court long ago conferred upon
defendants in federal prosecutions the right, upon motion and proof, to have
excluded from trial evidence which had been secured by means of an unlawful
search and seizure."
 Federal Rules of Criminal Procedure
o Rule 41(h)
 Motion to Suppress. A defendant may move to suppress
evidence in the court where the trial will occur, as Rule 12
provides.
 Have to be specific w/ what you’re asking for, in terms of relief
o This is done post discovery
o Evidentiary Hearing (don’t get automatically)  judge determines
facts
 Police Reports, Video, Eyewitnesses (statements – affidavits)
 Judge decides disputed questions of fact. (virtually impossible to
overturn)
o A trial court's finding with regard to a motion to quash an arrest will
not be disturbed on appeal unless it is manifestly erroneous.

Typical Challenges for A Motion to Suppress

A suppression motion typically challenges such things as:
o Illegally seized evidence
o Improperly obtained confessions
o Results of chemical tests administered to determine blood alcohol
content
o Whether police had probable cause to make a traffic stop or arrest

Evidentiary Justifications for Police Conduct

 1. What - Quality
 2. How Much – Amount

Both Search and Seizure,

 4th amendment implicated,
 need justification  will vary based on degree of search and seizure
Seizure  property, persons,
 Take life, sentence to prison (beyond a reasonable doubt)
 Charging (probable cause)
 Arrested before charge (probable cause)
 Stop
 Voluntary Citizen Encounter (not a seizure)
Four types of Justification (amount of evidence distinguishes between)
 Proof beyond a reasonable doubt
 Probable Cause
o Probable cause exists where the facts and circumstances within the
arresting officer’s knowledge are sufficient for a person of reasonable
caution to believe that a crime has occurred. Carroll v. United States.
It is an objective standard.
 A citizen informant who directly informs the police that a
crime has occurred does not need to be verified as a good
source. Maryland v. Pringle. There is an inherent indicia of
reliability because a citizen informant undertook the risk that
the police could recognize him at a later time and charge him
criminally if the information proved untrue.
 An officer does not have to disclose the informant, because
there is an interest in not “outing” the informant and placing
his safety at risk. A defendant has a right to confront the
informant-witness only at trial—not at a pretrial suppression
hearing. McCray v. Illinois. Therefore, a defendant does not
possess the constitutional right to know the identity of an
informant upon whose testimony a warrant was issued.
McCray v. Illinois. Although, of course, the judge may require
the presence of the informant—perhaps in an in camera
hearing.
 An anonymous tip may be sufficient to form probable cause, so
long as it is corroborated (verified). Illinois v. Gates. This is a
totality-of-the-circumstances analysis. Illinois v. Gates. The
factors to be considered are
 (1) the informant’s credibility, the basis
of the informant’s knowledge, and
 (2) the probability that contraband or
evidence will be found.
 *In this sense, the totality-of-the-
circumstances test incorporates the factors
enunciated in the Aguilar-Spinelli test.
 “Where probable cause has existed, the only cases in which
[the Supreme Court has] found it necessary actually to perform
the ‘balancing’ analysis involved those searches or seizures
conducted in an extraordinary manner, unusually harmful to an
individual’s privacy or even physical interests—such as, for
example:
 seizure by means of deadly force,
 unannounced entry into a home,
 entry into a home without a warrant, or
  physical penetration of the body.”
Whren v. United States.
 *In these situations, the individual’s
interest in privacy and security must be
weighed against society’s interest in
conducting the procedure. Winston v. Lee.
 Reasonable Suspicion 
o is a totality-of-the-circumstances analysis, and although it requires
more than a mere hunch, it is a considerably lesser standard than
preponderance of the evidence. United States v. Sokolow.
 Reasonable suspicion may be formed from the police’s own
personal observations, but also from information supplied by
another person, including through hearsay. Alabama v. White.
 A totally uncorroborated anonymous tip, however, cannot
serve as the sole basis to form reasonable suspicion. Florida v.
J.L.
 Reasonable suspicion may be formed where an individual runs
away from the police, especially if this occurs in a “high-
crime” area. Illinois v. Wardlow.
 Mere Suspicion
o  hunch / educated guess / feeling  Doesn’t Justify

Warrants

Mentioned in the 4th amendment

Two clauses: Warrant and Reasonableness Clauses

 Warrant clause of the 4th Amendment:

o “and no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”
o `basic principle of Fourth Amendment law[,]' that searches and
seizures inside a home without a warrant are presumptively
unreasonable."
o Prerequisites for a warrant to be valid
 (1) A neutral and detached magistrate must issue it
 magistrates shall not involve themselves in the
“competitive enterprise of fettering out crime”
 Standard of review for issuance of warrant is clearly
erroneous, which is very deferential standard
 Connally v. Georgia
  Facts: A man was convicted of
possession of marijuana, which was
found at his house by way of a search
warrant issued by a non-officer of the
court who had a financial incentive to
issue warrants.
 Rule: A defendant’s fourth
amendment right is violated when he
is subjected to judicial action by an
officer of the court who has “a direct,
personal, substantial, pecuniary
interest” in his conclusion to issue or
deny the warrant.
 Coolidge v. New Hampshire
 Facts: A man suspected and convicted
of murder had his car seized by
officers after a warrant was issued by
the Chief Prosecutor of his case.
 Held: That chief investigator and the
prosecutor of the case were not
neutral and detached magistrate and
invalid.
 (2)Must have probable cause supported by oath or
affirmation
 An affidavit is presumptively valid. In some
circumstances, however, “where the defendant makes a
substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard
for the truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth
Amendment requires that a hearing be held at the
defendant’s request.”
 "truthful" in the sense that the information put forth is
believed or appropriately accepted by the affiant as
true.
 Franks v. Delaware
  Rule: where the defendant makes a
substantial preliminary showing that a
false statement knowingly and
intentionally, or with reckless
disregard for the truth, was included
by the affiant in the warrant affidavit,
and if the allegedly false statement is
necessary to the finding of probable
cause, the Fourth Amendment
requires that a hearing be held at the
defendant's request.
 To mandate an evidentiary hearing,
the challenger's attack must be more
than conclusory and must be
supported by more than a mere desire
to cross-examine.
o There must be allegations of
deliberate falsehood or of
reckless disregard for the truth,
and those allegations must be
accompanied by an offer of
proof. They should point out
specifically the portion of the
warrant affidavit that is claimed
to be false; and they should be
accompanied by a statement of
supporting reasons.
 (3) Warrant must be particular: describes the place to be
searched and the items to be seized
 It is sufficient to satisfy the particularity requirement
that the description is such that the police with a
warrant can with reasonable effort ascertain and
identify the place to be search and person and things
to be seized. Maryland v. Garrison.
 Groh v. Ramirez.
 It is possible for a warrant to say “see
places to be search via affidavit.”
 Where a valid search warrant is issued, however, the
government can seize any evidence that can help in
the criminal prosecution under investigation (e.g., a
sweatshirt that the accused wore during the commission
of a crime). Warden v. Hayden. This includes an
individual’s papers. Andresen v. Maryland.
 Reasonableness clause of the 4th Amendment
 o “The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated”
o When Obtaining and Executing a warrant, the police must act
reasonably
 Reasonableness in Executing A Warrant
o In executing the warrant, did the police comply with miscellaneous
considerations, such as knocking and announcing and not overstepping
the bounds for detainment?
o Execution means implementing and carrying out the warrant
The common law “knock-and-announce” rule has been
incorporated into the Fourth Amendment, and it is one of the
factors to be considered when determining reasonableness.
Wilson v. Arkansas. The underlying justification for this is the
sanctity of the home.
 Exception to Knock and announce: A totality-of-the-
circumstances approach must be applied to this
analysis. Per se, categorical exceptions to the knock-
and-announce rule are likely too broad. Richards v.
Wisconsin. Courts are likely to recognize exceptions
where police safety is jeopardized.
o Detaining Occupants while executing a warrant
 Michigan v. Summers
 Facts: Owner of residence subject to search
by valid warrant was detained at said
residence while search was conducted.
Drugs were found in residence which led
officers to search owner and heroin was
found.
 Rule: A warrant to search for contraband
founded on probable cause implicitly carries
with it the limited authority to detain the
occupants of the premises while a proper
search is conducted.
 Three justifications for detaining occupants
while executing a search warrant:
 (1) the legitimate law enforcement
interest in preventing flight in the
event that incriminating evidence is
found
 (2) the interest in minimizing the risk
of harm to the officers
 (3) the orderly completion of the
search, which may be facilitated if the
occupants of the premises are present
 o

Reasonableness
Effect warrants in two ways:
 How you obtain the warrant
 How you execute the warrant

Execution means implementing and carrying out the warrant

 Warrant----- *Read
 Warrants are favored
 They are court orders

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

Four components of the warrant clause

Probable cause
 Facts or reasonable circumstances that would lead someone
to evidence of a crime
Oath or affirmation
 The party who seeks the warrant (the police officer)
 In the form of an affidavit or testimony (most of the time in
an affidavit)
Particularity
 You have to be particular about where you are going to
search
 You have to be particular to the things or people to be seized
o *what you say and state in the warrant will dictate the
scope of your search
o Note: the smaller the item you search, the more broad
the scope is because it can be hidden anywhere.
Purposes that particularity serves in the warrant
 Assures the defendant by limiting the scope
 Helps to assess what the basis of probable cause was

Federal Rule of Criminal Procedure #41

Go back and outline this section

For Arrest in a person home, what type of warrant do you need?

 You need an arrest warrant, not a search warrant
 When arresting a defendant in his own house, you need an
arrest warrant
 Payton v. new York
o Facts: Consolidation of two similar cases where
defendants were arrested in their residences by officers
without a valid warrant in accordance to A NY state
criminal procedure statute
o Rule: The Fourth Amendment, made applicable to the
States by the Fourteenth Amendment, prohibits the
police from making a warrantless and nonconsensual
entry into a suspect's home in order to make a routine
felony arrest
 Arrest warrant would have sufficed in both cases
for arresting either defendant
o absent probable cause and exigent circumstances,
warrantless arrests in the home are prohibited by the
Fourth Amendment.
o "a search or seizure carried out on a suspect's premises
without a warrant is per se unreasonable, unless the
police can show . . . the presence of `exigent
circumstances'"


 “
o Welsh v. Wisconsin
 Facts: A man crashes his car into a ditch in an
open field off an highway. Before police get to the
scene, man flees. Police find his identity when
looking into the vehicle registration, go to his
home and arrest him at 9pm. In Wisconsin, first
time offense of DUI is a civil fine of $200.
 Issue: whether, and if so under what
circumstances, the Fourth Amendment prohibits
the police from making a warrantless night entry
of a person's home in order to arrest him for a
nonjailable traffic offense.
 Rule: Absent exigent circumstances, a warrantless
nighttime entry into the home of an individual to
arrest him for a civil, nonjailable traffic offense is
prohibited by the special protection afforded the
individual in his home by the Fourth Amendment.
  Before agents of the government may
invade the sanctity of the home, the burden
is on the government to demonstrate
exigent circumstances that overcome the
presumption of unreasonableness that
attaches to all warrantless home entries.
 An important factor to be considered when
determining whether any exigency exists is
the gravity of the underlying offense for
which the arrest is being made. Exception to
a home entry should rarely be sanctioned.
 Application of the exigent-circumstances
exception in the context of a home entry
should rarely be sanctioned when there is
probable cause to believe that only a minor
offense, such as the kind at issue in this
case, has been committed.
But sometimes you need search warrant to arrest someone in someone else’s
home

Searches of Homes
Homes
 Interest implicated in the home:
o 4th Amendment concerned with privacy
o Warrants are generally required to be reasonable when
dealing with the home
o There is a presumption: No warrant, search is
presumed unreasonable
o If you want to overcome the presumption, GO GET A
WARRANT!
 Exceptions to the warrant rule
o Exigent circumstances
o Hot pursuit
o Etc.

 Florida v. Jardines
 o Facts: Man was accused of using his home as a grow
house for marijuana. They used a drug K9, and he
determined that there were drugs in there by the scent.
After this, they went and got a search warrant. The
police did not have permission or a warrant to walk to
the door and sniff.
o Rule: the government's use of trained police dogs to
investigate the home and its immediate surroundings is
a "search" within the meaning of the Fourth
Amendment. Supreme Court of Florida affirmed.
 Curtilage
o Definition: the land immediately surrounding it [the
home], including any closely associated buildings and
structures, but excluding any associated "open fields
beyond", and also excluding any closely associated
buildings, structures, or divisions that contain the
separate intimate activities of its own respective
occupants with those occupying residents being persons
other than those residents of the house or dwelling of
which the building is associated.

 Note: The zone of privacy is not limited to inside

the house. It is the extended to the curtilage, or
the near area surrounding the home
 The curtilage has the same expectation of privacy
as the home itself
 Going on the curtilage is exactly the same as
going into the house.
o Curtilage Rule
 How to determine if the house or property is
within the “curtilage
  (1) the proximity of the area claimed to be
the home's curtilage;  
 (2) whether the area is included within an
enclosure surrounding the home;
 like a fence, edge, something that
defines
o open fields have no expectation
privacy, so police can go into
  (3) the nature of the uses to which the area
is put;
 intimate activities related to the home
  (4) the steps taken by the resident to
protect the area from observation by people
passing by. 
o Kyllo v. United States
 Facts: House suspected of growing marijuana
within. Cops had thermo vision mages that read
heat signals. The cops found that there was an
abnormal amount of heat coming from the
garage, more so than the house, indicating that
marijuana was being grown in the garage. Based
on this, they assume that the garage is housing
the weed and they got a warrant.
 Rule: Thermal imaging of a home constitutes a
Fourth Amendment "search" and may be done
only with a warrant.
 Here, the problem in this case is the use of
the infrared device
 Court says that this technology is not
common use, so it is an intrusion of privacy.
 It also shows the inter workings of the
inside of the house, which there is a
reasonable expectation of privacy
 Expectation of privacy is based on a
reasonable person
 End Note: because of the nature of the
technology, the police were found to have
entered the home
o
o California v. Greenwood
 Facts: Acting on information indicating that
respondent Greenwood might be engaged in
narcotics trafficking, police twice obtained from
his regular trash collector garbage bags left on
the curb in front of his house. On the basis of
items in the bags, which were indicative of
narcotics use, the police obtained warrants to
search the house, discovered controlled
substances during the searches, and arrested
respondents on felony narcotics charges. 
 This is case dealing with an illegal search of
trash
  Rule: The Fourth Amendment does not prohibit
the warrantless search and seizure of waste left
for collection outside the curtilage of a home.
California Court of Appeal reversed.
 "[w]hat a person knowingly exposes to the
public, even in his own home or office, is
not a subject of Fourth Amendment
protection."
 Expectation of Privacy Test
 Two part test for reasonable expectation of
privacy
 Two prong test (subjective and
objective)
o (1) Subjective: Defendant must
manifest a subjective
expectation of privacy.
o (2) Objective: Society in general
believes or would find that the
defendant’s expectation is
reasonable
o You need both
 If the defendant doesn’t
have the subjective
expectation then there is
know expectation.
Consent
 Ultimate exception to the 4th Amendment
 In consent cases, every fact matters
 Consent and search warrants
o
o
 Bumper v. North Carolina
 o Facts: Petitioner was tried for rape in North Carolina, an
offense punishable by death unless the jury
recommends life imprisonment. The prosecution was
permitted to challenge for cause all prospective jurors
who stated that they were opposed to capital
punishment or had conscientious scruples against
imposing the death penalty. A rifle which was
introduced at the trial was obtained by a search of
petitioner's grandmother's house, where he resided.
Four officers appeared at the home, announced that
they had a warrant to search it, and were told by the
owner to "[g]o ahead." At the hearing on a motion to
suppress, which was denied, the prosecutor stated that
he did not rely on a warrant to justify the search, but
on consent. The jury found petitioner guilty, but
recommended life imprisonment, and the State
Supreme Court affirmed.
o Issue: “[W]hether a search can be justified as lawful on
the basis of consent when that ‘consent’ has been given
only after the official conducting the search has
asserted that he possesses a warrant?
o Rule: “A search conducted in reliance upon a warrant
cannot later be justified on the basis of consent if it
turns out that the warrant was invalid.”

 Illinois v. Rodriguez
o Facts: Cops believe that defendant’s girlfriend had
authority to enter the house but she didn’t. The police
enter the house based on her apparent authority and
seized evidence that was against the defendant
o Rule: 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.
o
 Authority comes in forms
 Actual
 Occupants who live there
 Apparent
 Reasonable belief that defendant had
authority
  You can be wrong and still be okay as long
as your belief was reasonable
 Objective standard
End of Consent

Exceptions to General requirements of searching home

Maryland v. Buie

 Facts: Police officers entered the Respondent’s home to arrest

him. After the Respondent emerged from his basement, a
police officer entered the basement to ensure no one else was
in the there. While the officer was in the basement, he found
evidence linking the Respondent to the robbery that had led
to the Respondent’s arrest. The Respondent was subsequently
found guilty of robbery
 Issue: When the police go to the home and arrest someone,
once they arrest someone, are they allowed to search beyond
just finding the defendant
 Rule: The Fourth Amendment permits a properly limited
protective sweep in conjunction with an in-home arrest when
the searching officer possesses a reasonable belief based on
specific and articulable facts that the area to be swept
harbors an individual posing a danger to those on the arrest
scene.
o Yes. The police may conduct a protective sweep
 Justice White’s Holding (two part)
o (1) As an incident to the arrest officers may, as a
precautionary matter and without probable cause or
reasonable suspicion, look in closets and other spaces
immediately adjoining the place of arrest from which an
attack could be immediately launched. This portion of
the holding has recently been called into question.
o (2) If an officer wishes to conduct a sweep of the
premises (more than the adjoining area), there
must be articulable facts which, taken together with the
rational inferences from those facts, would warrant a
reasonably prudent officer in believing that the area to
be swept harbors an individual posing a danger to those
on the arrest scene.
Two types of searches performed in a protective sweep
 1. In an immediate area where it is likely for someone to
launch an attack
o Ex: Reasonable that a person in the pantry could launch
an attack
 Purpose is to protect the police officer
 No evidentiary justification needed
 This a narrow search
 2. If you have reasonable suspicion that a person is being
harbored or hidden in the house
o then you can go beyond areas immediately adjacent to
the arrest
o ex: a cop hears a noise, a thump, or something
 This is a broad search
 You need more of a justification for this search
than for an immediate area search

Michigan v. Fisher
 Facts: Jeremy Fisher (defendant) was observed inside his
house, screaming and throwing objects. The police were
notified. Officer Christopher Goolsby and other officers
approached the home and found blood on the hood of a
damaged pickup truck outside the home. The officers
observed Fisher in the home with a cut on his hand. They
knocked on the door of the home but Fisher refused them
entry and told them to get a search warrant. Goolsby opened
the door and entered the home until he saw that Fisher was
pointing a long gun at him. Fisher was later charged with
assault with a dangerous weapon and possession of a firearm
during a felony. Fisher moved to suppress Goolsby’s
statement that Fisher had pointed a long gun at him.
 Rule:
o “the need to assist persons who are seriously injured or
threatened with such injury.”
o officers do not need ironclad proof of “a likely serious,
life-threatening” injury to invoke the emergency aid
exception.
 o Only when an apparent threat has become an actual
harm can officers rule out innocuous (harmless, mild)
explanations for ominous (threatening) circumstances.
But “[t]he role of a peace officer includes preventing
violence and restoring order, not simply rendering first
aid to casualties.”
o
Mincey v. Arizona
 Facts: On 28 October 1978, undercover police officers in
Tucson, Arizona, conducted a raid at an apartment occupied
by Rufus Mincey. Shots were fired by Mincey, and one officer
was killed. Mincey was also wounded in the exchange. Police
officers rushed into the apartment to search for other possibly
injured people. They conducted a quick search of the living
room, bedroom, and bedroom closet, but refrained from
conducting any further investigation. However, about ten
minutes later homicide detectives arrived on the scene and
conducted a thorough, four-day search of the apartment.


Searches of Automobiles

When dealing with 4th Amendment issues for searches of automobiles,

these concepts must be dealt with:
 Issues and Concepts:
o 1. Probable Cause
o 2. Scope (what and where you search)
o 3. Containers (where paraphernalia is being stowed)
o 4. Passengers (including those who are not being
questioned)
o 5. Consent

Probable Cause
People v. Smith, 982 N.E. 2d 234 (Ill. App. Ct. 2012)
 Facts: Defendant was arrested and charged with possession
of cannabis and paraphernalia after an officer smelled raw
marijuana. The marijuana was found after k-9 unit was
brought in about 10-15 minutes later
 Rule: in a case involving raw rather than burnt marijuana,
"the smell of marijuana [is] alone sufficient to furnish
probable cause to search a vehicle without a warrant, at least
where there is a sufficient foundation as to expertise."
 o Smelling fresh marijuana is sufficient for probable cause
 The issue will be: what is the knowledge of the
officer regarding Marijuana.
 To use smell of marijuana as probable cause
o Officers knowledge
 Doesn’t have to be an expert
 Can say he has experience with
marijuana interactions and
arrests
 Maybe he was trained to smell it
 Smell of marijuana is inherently illegal
 Unlike the smell of alcohol
o The smell of alcohol is a factor of
probable cause
o The smell of marijuana IS probable
cause (standing alone)

California v. Carney, 471 U.S. 386 (1985)

 Facts: The defendant, Charles Carney (the “defendant”), was
arrested for possession of marijuana for sale, after police
surveyed the defendant’s parked motor home. The police did
not obtain a warrant for the arrest and subsequent search.
 Rule: A motor home is subject to the automobile exception to
the 4th Amendment search warrant requirement because it is
readily movable.
o Expectation of privacy with RVs
 Expectation of less privacy
 RVs are regulated by the state
o You need driver’s license, license
plates, state inspections, etc.
o Factors to determine whether a warrant is for a
mobile home:
 whether the vehicle is readily mobile or instead,
for instance, elevated on blocks,
 whether the vehicle is licensed,
 whether it is connected to utilities, and
 whether it has convenient access to a public road.
 The Court here has set factors for whether a
warrant would be required for a motor vehicle
home
Scope of Search
 Illinois v. Caballes, 543 U.S. 405 (2005)
 o Facts: Defendant was pulled over for a traffic violation.
The officer reported back to his headquarters, and an
officer who overhears the transmission came by with a k-9
officer. The dog sniffed the outside of the trunk and
determined that marijuana was in the trunk. The
defendant was convicted based on this evidence
o Rule: 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.
 As to the length of the stop
 If the seizure goes beyond its reasonable
justification, then everything else that comes
after that needs a new reasonable justification
 The more complicated the stop is, the more
reasonable it is to prolong the stop and bring
the K9 in
 As long as the officer has an objective basis for the
stop and the dog search doesn’t implicate the 4th
Amendment then we don’t care
 But you still need a reasonable objective basis
for the stop in the beginning

Containers

 California v. Acevado, 500 U.S. 565 (1991)

o Facts: The defendant, Charles Acevedo (”Mr. Acevedo”),
put a container in his trunk that the police suspected
contained marijuana. The police stopped the defendant
and searched the container, leading to the defendant’s
arrest.
o Rule: 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.
o After Acevedo
 THIS IS THE RELEVANT RULE FOR SEARCHING
CONTAINERS IN CARS
 Container Searches
o Focus doesn’t matter
  The police may search container
contained in a car if they have
probable cause that there is
illegal contraband in the
automobile
 Now you no longer need
to focus on the car or
container, Ross (above
rule) has been overruled

Passengers
 Wyoming v. Houghton, 526 U.S. 295 (1999)
o Facts: The driver of car stopped by police had a syringe in
his pocket which he admitted was his. The police then
searched the car, finding a purse which the respondent
passenger claimed was hers that held two containers, both
containing methamphetamine.
o Rule: Absent exigency, the warrantless search of a
passenger's container capable of holding the object of a
search for which there is probable cause is a violation of
the Fourth Amendment, but justified under the automobile
exception as an effect of the car.

Consent
 Ohio v. Robinette, 519 U.S. 33 (1996)
 Facts: While driving on a stretch of Interstate
70 north of Dayton, Robinette was stopped for
speeding. After verifying that Robinette had no prior
violations, the officer asked Robinette to step out of
his car before issuing him a verbal warning. The
officer handed over Robinette's driver's license, and
then asked him if he had any drugs or weapons in
his car. Robinette said he did not. The officer asked
Robinette if he could search the car, and Robinette
agreed. The officer found a small amount
of marijuana and a tablet of ecstasy. Robinette was
arrested for possession of a controlled substance.
 Rule: The Fourth Amendment does not require the
police to inform a motorist during a traffic stop that
they are "free to go" before asking questions
unrelated to the purpose of the stop.
 Concerns consent to search automobile
 All consents have to be knowing an voluntary
  You can still give consent even though the
officer does not tell you that you have a right
to leave
 Police do not have to tell you that you have a
right to leave
 Consent factors:
 Knowing
 Voluntary

People v. Kats, 967 N.E. 2d 335 (Ill. App. Ct. 2012)

 Facts: A man stopped by Illinois State Police for a failure to
merge citation. After a background search on the vehicle and
defendant, officer asks defendant for consent to search car.
Officer searches car by pulling back panel of door with
screwdriver and found seven pounds of marijuana
 Rule: Scope of the search is dictated by what you ask to search;
What would an objective reasonable person believe that they are
consenting to:
o Two things the officer must tell the occupant about the
search
 1. The object
 2. The Purpose
 Officer needs to say either or
 Officers need not fully spell it out if the objective
of the search is apparent to a reasonable person
 Benefits of the officer telling the occupant
 Explains of what he’s giving
 Sets the parameters of the search for the
case
 If there is a locked container, Officer must ask specifically to
search the lock container
o Because occupant has a heightened expectation of
privacy
o Applying these standards, courts have determined that
an officer may search unlocked containers found inside
the area being searched if it would be reasonable to find
the stated object of the search in such containers
o However, a defendant's general consent to search a
vehicle does not necessarily authorize an officer to
break into locked containers or otherwise do physical
damage to the vehicle in carrying out the search.
  General Rule: Consent means you don’t need any other
justification (probable cause, search warrant)
o once an officer obtains a defendant's consent to search
a vehicle for contraband, the officer may pry open or
remove the vehicle's interior door panels to search for
the contraband—without probable cause and without
obtaining additional consent—provided that the space
behind the door panels may reasonably contain the
contraband at issue

 INVENTORY

South Dakota v. Opperman 428 U.S. 364
Facts: Defendant’s car was impounded for a parking violation.
Police impounded the car and at the lot, the cops conducted an
inventory search of the car and gathered the defendants goods. During
this process, the cops found a small amount of marijuana in the glove
compartment.

Rule: 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.

Inventory had already been a widespread process → done to

protect police from false claims, protect person’s property,
protect police from danger
MUST have an established procedure / standardized

Inventory
 Seizure- police need a justification when they conduct a
seizure
o Car is normally towed by a 3rd party NOT the police
 In order for an inventory search to be Constitutional, must
serve these three recognized purposes
o False claims or accusations of lost property
o Protect property from others, police, and lot workers
who may commit theft or misplace things
o Protect policeman and citizens from any physical danger
from anything in the vehicle
 Essential to have an inventory search be constitutionally
valid:
 o You must have a procedure
o It must be established
o It must be standardized

Colorado v. Bertine
 F: Man driving under influence. Car impounded, whilst
taking inventory another policeman found a backpack with
drug paraphernalia in it (coke and cash). D filed a motion to
suppress
o Local police procedures required detailed inspection and
inventory of impounded vehicles
o Bertine challenging scope of the inventory → closed
backpack
NOTE: The test is whether or not the police were reasonable, not
if they could have done something else
 This is not only for inventory searches but general 4th
amendment jurisprudence


ROADBLOCK CASES

Mich St. Police v. Stitz
F: Sobriety checkpoint set out according to established guidelines.
Asked for DL and R, if suspicious pulled them off to the side.
I: If a seizure, whether or not the seizure is reasonable
H: Court employs a balancing test.
Liberty Interest (driving w/o hindrance) v. Preventing drunk
driving , Detecting crime and is directly related to safety on the
roads.

City of Indianapolis v. Edmunds

F: checkpoints looking for narcotics. Stops for 2-3 minutes (more
extensive seizure).
H: Difference between Edmunds, in Edmunds concern about crime and
safety (immediate effect on safety). Here, just setting up roadblocks
for ordinary crime not directly related to safety. If allowed, police could
set up roadblocks for any conceivable reason.
Exceptions: Imminent terrorist attack or to catch a dangerous criminal
likely to flee or searches at airports and government buildings
New Jersey v. TLO
F: two girls smoking in the bathroom
H: only need reasonable grounds for a search at a school. Reasonable
grounds for a search. Students have basically no expectation of
privacy.

Wisconsin v. Griffin
 F: warrantless search of a probationer in his home. Police find a
gun. Probationer challenges saying no warrant or PC. Gov’t →
special needs type of search, accordingly, don’t need either.
 H: 3 reasons why probation is a special needs search
 Probation is a criminal sanction , plead guilty or been
found guilty (sort of a prisoner)
 Probation limits the person’s freedom
 Need to protect society
 NEED reasonable grounds

References:

 The Fourth Amendment: Searches

 Scope of the Fourth Amendment
o Only an activity deemed to be a search within the
meaning of the Fourth Amendment is regulated. The
Amendment only applies to situations where the person
has a “reasonable expectation of privacy.” This standard
is a two-pronged test that contains subjective and
objective elements (Katz v. United States).
 Subjective prong
o The individual must have exhibited an actual
(subjective) expectation that she will be free from
government intrusions. Courts focus on the objective
prong.
 Objective Prong
o The individual’s expectation of privacy must be one that
society is willing to accept as reasonable. Three factors
are important to remember:
 The nature of the property: the home is entitled to more
protection than curtilage or open fields
 The measures an individual has taken to secure her privacy
 No protection for information knowingly exposed to the public
 o One who voluntarily exposes information to the public,
even if in one’s home or office, is not subject to Fourth
Amendment protection.
 Examples:
o Sound of one’s voice
o Style of one’s handwriting
o Color of one’s car
o Anything that can be seen from a public space
 No protection for information conveyed to others
o One who voluntarily conveys information to another
assumes the risk that the latter individual is a
government agent or will transmit that information to
the government.
 Examples:
o Bank records
 Unreliable ear:
o A person assumes the risk that the person to whom she
is speaking is an agent of the government, and is wired
or will report the information to the government.
 The degree of police intrusion through the use of surveillance or
other techniques
 Settled areas of law
 The following areas have been settled as to whether a person
has a reasonable expectation of privacy:
o Open fields not protected
o Entry into and exploration of open fields does not
constitute a search within the meaning of the Fourth
Amendment.
 Open field defined (Oliver v. U.S.)
o An open field includes any unoccupied or undeveloped
area outside the curtilage. It need not be open and it
need not be a field.
o Simply because a law-enforcement official has an open-
field vantage point of the home or curtilage does not
mean that he can enter these areas without a warrant.
 Curtilage defined
o The area immediately surrounding and intimately
associated with the home is curtilage.
 Curtilage is partially protected:
 o The amount of protection curtilage receives is unknown.
However, it is established that aerial surveillance of
curtilage does not constitute a search if it occurs from
navigable airspace, is conducted in a non-intrusive
manner, and does not reveal “intimate activities” that
are traditionally associated with and connected to the
use of the home (Florida v. Riley).
 Factors used to determine whether an area is an open field or
curtilage:
o Proximity to home
o Extent to which the area is included in enclosures that
surround the home
 Use of land
 Steps taken to ensure privacy (U.S. v. Dunn)
o Business property is protected
o A person has a reasonable expectation of privacy on
business and commercial property, and thus they are
protected under the Fourth Amendment.
 Luggage is protected
o Physical inspection and exploratory manipulation of
luggage violates a person’s reasonable expectation of
privacy.
 Garbage is not protected
o There is no reasonable expectation of privacy in the
contents of a garbage bag left out for collection;
therefore an officer’s observation of its contents does
not qualify as a search.
 Use of a pen register is not a search
o A person has no reasonable expectation of privacy in a
record of numbers that they telephoned (known as a
pen register).
 Enhancing the senses
o Unenhanced senses is not a search
o It is not a search for an officer, lawfully present in a
certain place, to detect something by his natural
senses.
 Example: Officer Owen is on Daphne’s open field.
He smells and sees marijuana plants growing in
the person’s home. This does not constitute a
search. He can then use that information to get a
search warrant.
 Use of sniffing dog is not a search
 o It is not a search for the police to use a dog to sniff for
drugs or bombs in a public place.
 Electronic tracking is not a search
o It is not a search to use electronic tracking devices to
follow a person or vehicle except if the devices are used
in the home.
 Use of photographic magnification equipment (telephoto lens) is
not a search
o It is not a search to photograph a person using
telephoto/telescopic lenses, so long as the equipment is
available to the public.
 Use of thermal imaging equipment in the home is a search
o It is a search to use thermal imaging equipment to view
activities in a person’s home.

Fourth Amendment: Seizure

Seizure of property
 A seizure of property occurs when there is some meaningful
interference with an individual’s possessory interests in that
property.
o For example, a seizure occurs when a police officer
exercises control over a person’s property by destroying
it or by removing it from the person’s actual or
constructive possession (U.S. v. Jacobsen).
Seizure of a house
 A house is seized when an officer secures the premises so
that the residents cannot enter or remove personal property.
 Slightly moving belongings is not a seizure
 Moving a person’s belongings does not constitute a seizure
because the interference with the possessory interest is not
meaningful. It does, however, constitute a search.
Seizure of a person (arrest)
 A person is seized only if in view of all the circumstances
surrounding the incident (including any use of force and/or
show of authority by the police), a reasonable person would
believe that she is not free to leave (United States v.
Mendenhall).
Seizure by “hot pursuit”
  A person already fleeing from an officer is not seized when
the officer yells “stop in the name of the law” or another
similar statement. The police may lawfully chase a person
without needing probable cause or a warrant because chasing
an already fleeing person does not fall within the protections
of the Fourth Amendment (California v. Hodari D.).
 Seizure does occur when the officer touches the suspect, or
the suspect otherwise surrenders to authority.
Seizure by questioning
 A person is not seized when a police officer stops a person
and questions her about her identity or criminal activity.
o A person, however, is seized if the questioning is
accompanied by conduct of the officer that would
convince a reasonable person that they were not free to
walk away.
Arrests for non-jailable offenses are valid
Arrests for misdemeanors, traffic infractions, and other non-jailable
offenses are constitutional (Atwater v. City of Lago Vista).

Fourth Amendment: Probable Cause

In General
 Probable cause exists when the facts and circumstances
within an officer’s knowledge, and of which she has
reasonably trustworthy information, are sufficient in
themselves to permit a person of reasonable caution to
believe that:
Arrests
 An offense has been committed, and the person to be
arrested committed it.
Searches
 The item to be searched for is present at a certain place at a
certain time and is either:
o The fruit of a crime;
o The instrumentality of a crime;
o Evidence of a crime; or
o Contraband.
Purely objective standard
 Whether probable cause exists is purely an objective
standard. The subjective intent or ulterior motives of the
police are irrelevant. The only determination that is made is
the objective determination of whether probable cause
existed (Whren v. United States).
o Example: If the police have probable cause to pull a car
over, they may do so, even if the true motive for
stopping the vehicle is because the occupants are
African-American.
Staleness
 Probable cause can be very time- and place-specific and can
go stale. Factors for determining staleness include:
o Character of criminality
o Type of property to be searched or seized
o Opportunities to remove/destroy/dispose of property in
relation to time

Determing Probable Cause

 For information to rise to the level of probable cause it must
be trustworthy and ample.
 Trustworthiness (quality)
o The two types of information that can be offered are:
 Direct
 Information that the police officer secured
by personal knowledge (such as witnessing
himself). Direct information is deemed
sufficiently trustworthy so long as it is not
“bald and unilluminating.” In other words,
conclusory statements without any
supportive facts are given no consideration
by the magistrate.
 Hearsay (e.g., from informants)
 Information received from a third party
needs to satisfy the two-pronged test of:
Veracity
 This is satisfied by providing the magistrate enough
information about the third party to satisfy her that the
informant is credible and reliable. Veracity is established by
either:
o Batting average: the prior track record of the
informant’s information
 o Corroboration: the police are able to verify various
aspects of the informant’s tips
Basis of knowledge
 This is satisfied if the informant received her information
firsthand. If the source of the information is not stated, basis
of knowledge is satisfied by providing either:
o Self-verifying detail: information sufficiently detailed to
lead the magistrate to believe that the informant has
firsthand knowledge
o Corroboration: the police are able to verify various
aspects of the informant’s tips
Totality of the circumstances test
 The modern test for trustworthiness eliminates the rigid two-
prong test and now requires the magistrate to conduct a
balanced assessment of the relative weights of all the various
indicia of reliability attending an informant’s tip. The
weakness of one prong may be compensated for by the
strength of the other prong (Illinois v. Gates).
Quantity
 Whether the information provided is sufficient so that the
facts and circumstances would lead a person of reasonable
caution to believe that the person or place possesses seizable
material for a search or that the person to be arrested
committed an arrestible offense
“Bald and unilluminating” assertions get no weight
Statements presented by the affiant or informant that are wholly
conclusory cannot ever satisfy the quality or quantity requirements.
 They are entitled to no weight whatsoever by the magistrate
(Spinelli v. U.S.).
Affiant: the police officer giving the sworn statement (by an
affidavit)
Informant: the person who supplied the information

Fourth Amendment: Search Warrants

Warrant requirement
 The general stated rule is that a warrant is required for a
search or seizure. The vast majority of searches and seizures
(including arrests) are conducted without warrants pursuant
to one of the warrant exceptions (see below).
Requirements for a valid warrant
 Affidavit stating probable cause
 o The police officer prepares a written affidavit that sets
forth, with particularity, the grounds that establish
probable cause for the warrant.
 The requirement of a written affidavit is waived in exceptional
time-sensitive circumstances. In these cases, a sworn verbal
statement will be sufficient.
Particularity requirement:
 The warrant must state with sufficient particularity the place
or person to be searched or the person or thing to be seized.
Catch-all clauses such as “any evidence of a crime is to be
seized” are invalid.
Neutral magistrate
 The officer goes to a neutral and detached magistrate and
presents the application.
Questioning
 The magistrate questions the applying officer about facts or
informants.
Issued
 The warrant is issued.
Executed
 The warrant is executed.
Report
 The officer must return to the magistrate and explain the
details of the execution, including what persons or places
were searched and/or what items or persons were seized.

Requirements for a magistrate

 Must be neutral: The magistrate cannot be paid per warrant,
cannot be a “rubber stamp,” and cannot be involved in the
investigation (U.S. v. Leon).
 The judicial officer approving the issuance of a search warrant
does not have to be admitted to the bar.
 The magistrate cannot accompany the officer and write the
warrant at the scene of the search.

Arrest Warrants
 No warrant is required for arrests in public places.
o A warrantless arrest of a person in a public place is
permissible, even if the officer could have obtained one,
so long as probable cause exists for the arrest (United
States v. Watson).
Absent consent or exigency, a warrant is required for in-home
arrests
  A police officer must obtain an arrest warrant plus have
“reason to believe the suspect is within” the dwelling to arrest
a person in his home (Payton v. New York) [see Exceptions to
Warrant Requirement for a discussion of warrantless entries].
 Entry of a third person’s home to make an arrest requires
search warrant
Absent consent or exigency, an officer cannot enter a home to
arrest a person who does not live there unless the police also have a
warrant to search that home for the person to be arrested (Steagaid v.
U.S.).

Whether an arrest warrant is also required is an open question.

Only reasonable force is permissible in making an arrest

 The police may use only the force reasonable under the
circumstances to make an arrest.
 Deadly force is prohibited to prevent escape unless the
arrestee poses a significant threat of death or serious injury
to the officer or others and the use of force is necessary to
make the arrest or prevent escape (Tennessee v. Garner).

Fourth Amendment: Search Warrants

Search warrant requirement
 As a general rule (although there are many exceptions), all
searches require a warrant.
Ten-day rule
 A search warrant must be executed within ten days of it being
issued; otherwise it is deemed stale. Note that this rule does
not apply to arrest warrants, because they do not go stale.

Knock and announce required

 As a general rule, the police must knock and announce their
presence before executing a warrant. To justify a no-knock
entry, the police, under the particular circumstance, must
have a reasonable suspicion that:
o Knocking would be futile (pointless);
o Knocking would create a danger to the police;
o Knocking would create a danger to someone inside; or
o Knocking would create a high probability that evidence
would be destroyed.
Detaining persons on the premises
 A warrant to search residential premises carries with it the
implicit authorization to detain any occupants for the duration
of the search
Scope of search
 The police may search the place particularly described in the
warrant and any closed containers found within the place, so
long as the containers are large enough to contain the item
for which they are searching.
Seizure of items not listed in warrant
 The police may lawfully seize objects not listed in the warrant
so long as:
o The item is seen by the police in plain view;
o The item is located in an area the police are authorized
to search; and
o The police have probable cause to believe the item is
seizable.
Termination of the search
 The police must end their search once the articles to be
searched for are discovered.

Exceptions to Warrant Requirement

 Search incident to a lawful arrest
o A warrantless search of the arrestee incident to a lawful
arrest for weapons or evidence of the crime is
constitutional, even if no probable cause for the search
exists.
Scope of search
 The person
o A police officer may search a person’s body, clothing,
pockets, and any containers found on the person (such
as a pack of cigarettes or a purse). Penetrating the skin
or orifices is not permissible under search incident to
arrest. (But see Warrantless Intrusion sbelow.)
The person’s grab area
 The area within a person’s immediate control (known as grab
area) may be searched. Grab area is defined as the area into
which the person might lunge for a weapon or for evidence to
destroy.
 What constitutes a grab area is fact sensitive and depends
upon the number of officers present, size of the person,
whether they are in restraints, and the site of the arrest.
 o If the arrest occurs in a home or an otherwise confined
location, the area immediately adjoining the place of
arrest from which an attack could be immediately
launched
Search of an automobile incident to a lawful arrest
 Notwithstanding the scope limitations listed above, the police
may search the entire passenger compartment of an
automobile, including all containers found therein, so long as
the containers are capable of containing a weapon or
evidence (New York v. Belton).
 Bright-line rule: Search is valid even if the arrestee is already
in handcuffs in the police car.
 Trunk and hood not included: The police cannot search the
trunk or hood of the vehicle unless separate probable cause
exists.
Limitations to search-incident-warrant exception
 The search must be contemporaneous to the arrest
Must be a custodial arrest
 A police officer cannot conduct a search for noncustodial
arrests, such as when the officer issues a ticket or summons.
Automobile exception
 At-the-scene searches
 The police may conduct an immediate (at the scene)
warrantless search of an automobile if they have probable
cause to conclude that it contains a seizable object and the
automobile is:
o Stopped on a public road; or
o Readily capable of use and not in a place that is
regularly used for residential purposes (such as a
mobile home park).
Away-from-the-scene searches
 If the police have the right to conduct an at-the-scene
warrantless search, they may instead seize the car without a
warrant and tow it to another site to conduct the warrantless
search.
 The search must be relatively contemporaneous to the
seizure.
Search of containers found within a car
 Containers found in cars may be searched (even if it is the
passenger’s container) without a warrant during an otherwise
lawful automobile exception search, so long as the container
is large enough to conceal the object of the search.
Away-from-the-scene searches of containers
 If the police may open the container at the scene without a
warrant, they may likewise seize the container without a
warrant and search it elsewhere.
Inventory searches
 Inventory searches of automobiles
o A routine inventory search of a lawfully impounded
vehicle and containers found therein without a warrant
or probable cause is constitutional (South Dakota v.
Opperman).
o The search must be made in good faith and in
accordance with standardized procedures.
Inventory arrest searches
 A routine inventory search of a person and her belongings
incident to a lawful arrest is constitutional.
Stop and frisk (Terry v. Ohio)
 Reasonable suspicion required to stop
o A police officer may stop and temporarily detain an
individual for further inquiry when the officer has
reasonable suspicion to believe that criminal activity is
afoot.
Articulable facts necessary
 The police officer must be able to identify particularized
articulable facts that gave rise to the reasonable suspicion.
 Refusal to identify one’s self does not establish reasonable
suspicion.
 Anonymous tip does not establish reasonable suspicion, but if
facts within the tip are corroborated, it may give rise to a
reasonable suspicion.
 “Unprovoked flight” from a police officer in a high-crime area
does constitute reasonable suspicion (Illinois v. Wardiow).
When a stop becomes an arrest
 A stop becomes an arrest (which requires probable cause) if
the officer uses a disproportionate amount of force to conduct
the stop or brings the suspect to the police station.
Reasonable suspicion required for a frisk for weapons
 A police officer may, while conducting a valid Terry stop,
conduct a pat-down for weapons if he has a reasonable
suspicion that the individual whose suspicious behavior he is
investigating is presently armed and dangerous.
Scope of frisk
 The police officer may search for weapons only. Thus, the
officer may only reach into a suspect’s pocket if she feels
something that could reasonably be a weapon.
Automobile frisks
 The search of the passenger compartment of an automobile,
limited to those areas in which a weapon may be placed or
hidden, is permissible if the officer possesses a reasonable
belief that the suspect is dangerous and the suspect may gain
immediate control of weapons (Michigan v. Long).
Home protective sweeps
 While conducting a search incident to a lawful arrest in a
home, the police may conduct a protective sweep of the home
if they have reasonable suspicion that the area to be swept
harbors an individual posing a danger to the police (Maryland
v. Bute).
Plain view
 An object of an incriminating nature may be seized without a
warrant if it is in plain view if:
o Lawful vantage point
o The officer is lawfully present when she views the
object.
Lawful access to the object
 The officer who observes the object can lawfully access the
object.
Probable cause that object is seizable is “immediately apparent”
 Probable cause to believe that the object is seizable exists
and is immediately apparent. The officer cannot search the
item to see whether it is seizable (Arizona v. Hicks).
o Example: An officer lawfully enters a home after a gun
was fired from the premises. Once inside, he observes a
stereo that matches the description of one reported
stolen. He lifts the stereo to check the serial number.
Although he was lawfully present and lawfully had
access to the object, the probable cause was not
immediately apparent, and thus the seizure of the
object was unlawful.

Warrantless entry of a home

 The police may enter a person’s home without a warrant in
any of the following circumstances:
o Hot pursuit
 The police may enter a person’s home without a
warrant if they are in hot pursuit of a suspected
fleeing felon.
o Imminent destruction of evidence
  The police may enter a person’s home without a
warrant if they have probable cause to believe
contraband is present and they have a reasonable
belief that the evidence will be destroyed or
removed before a warrant can be obtained.
o Prevent harm to persons inside the dwelling
 Prevent the likely escape of a suspect
Warrantless intrusion of the human body
 The police may conduct a warrantless search into a suspect’s
body when there is a clear indication that evidence will be
found beneath the skin and the method used to search is
reasonable.
 Clear indication is considered a higher standard than probable
cause.
Consent
 Validly obtained consent justifies a warrantless search,
regardless of the existence of probable cause.
 Consent must be voluntary: The police cannot use fraud,
duress, or coercion to obtain it.
 Awareness of the right to refuse unnecessary: The consenting
person need not know that they have the right to refuse for
the consent to be valid.
Searches of homes:
 The owner, occupier, or any other person with the right to use
the property (except for landlords) may consent to a search
of the property.
Border searches
 A person may be routinely stopped at the international border
or its equivalent (e.g., at an international airport), and her
belongings searched without a warrant and without suspicion
of wrongdoing (United States v. Ramsey).

Midterm info and Format

Topics
 Exclusionary rule
 Fruit of poisonous tree doctrine
 What constitutes a stop
o Reasonable suspicion
 Investigative searches
 Warrant
o Rules related to basis
 o Probable cause
o Scope
o Execution of warrant
 Searches of homes and automobiles
o Rules specific to home and automobiles
o Put in every step of the process!!!!!
o Citizen informant
o Confidential informant
o Unidentified informant
 Know rules for informants in relying on them
 Exceptions to probable cause and warrants
o Search incident to lawful arrest
o Exigent circumstances
o Plain view
o Consent
 Evidentiary Justifications
o Know what reasonable suspicion is probable cause
 Inventory doctrine
 Roadblocks
 Road stop

While taking the exam

Must identify and answer all dispositive issues
 Be precise
 Dispositive issues are major and determining issues
 Do not ramble and be unorganized
 Do not leave any material facts on the table
Must know an use material facts
 Facts may be immaterial to one issue but material to other
How to organize an answer
 Organize it by issue
 Set out all applicable rules
 State a clear conclusion to each issue