2195 crim pro i outline

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Crim Pro IProf Huffman

Fall 2009


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Table of Contents

I. Searches and Seizures.........................................................................................5A. Introduction.................................................................................................5B. What is a Search?........................................................................................5

1. Open Fields..........................................................................................62. Aerial Searches....................................................................................83. Thermal Imaging of Homes..................................................................94. Searches of Trash...............................................................................105. Observation and Monitoring of Public Behavior.................................116. Use of Dogs to Sniff for Contraband...................................................12

C. The Requirement for Probable Cause........................................................131. Sufficient Belief to Meet the Standard for Probable Cause.................132. An Objective or Subjective Standard?................................................15

D. The Warrant Requirement.........................................................................161. What Information Must Be Included in the Application for a Warrant?162. What Form Must the Warrant Take?...................................................173. What are the Requirement in Executing Warrants?............................20

a. How May Police Treat Those Who Are present When a Warrant Is BeingExecuted?........................................................................................20b. Do Police have to Knock and Announce?....................................21c. What if There Are Unforeseen Circumstances or Mistakes WhileExecuting a Warrant?.......................................................................22

E. Exceptions to the Warrant Requirement....................................................231. Searches Incident to Arrest................................................................232. Searches Made in Hot Pursuit............................................................253. Plain View...........................................................................................26

4. The Automobile Exception ................................................................29a. The Exception and Its Rationale.................................................29b. Searches of Containers in Automobiles......................................30c. Searches Incident to Arrest.........................................................31

5. Inventory Searches............................................................................326. Border Crossing and Checkpoints......................................................347. Checkpoints.......................................................................................358. Consent..............................................................................................379. Searches on Those on Probation and Parole......................................3810. Searches When There Are Special Needs.....................................40

a. Administrative Searches.............................................................40

b. Drug Testing...............................................................................4111. Exigent Circumstances.....................................................................44F. Seizures and Arrests...................................................................................46

1. Is a Warrant Needed for Arrests?.......................................................462. When Is a Person Seized?..................................................................463. For What Crimes May a Person Be Arrested?.....................................48

G. Stop and Frisk...........................................................................................49

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1. The Authority for Police to Stop and Frisk..........................................492. The Distinction Between Stops and Arrests.......................................513. What May Police Do When They Stop an Individual?.........................514. What is Sufficient for Reasonable Suspicion?.....................................52

a. Reasonable Suspicion for Stopping Cars.....................................52b. Reasonable Suspicion Based on Informants' Tips.......................52

c. Reasonable Suspicion Based on a Person's Trying to Avoid a PoliceOfficer..............................................................................................54d. Reasonable Suspicion Based on Profiles.....................................55

II. The Exclusionary Rule.......................................................................................55A. Is the Exclusionary rule a Desirable Remedy?...........................................55B. The Origins of the Exclusionary Rule.........................................................57C. Who Can Object to the Introduction of Evidence and Raise the ExclusionaryRule?...............................................................................................................57D. Exceptions to the Exclusionary Rule.........................................................59

1. Independent Source...........................................................................592. Inevitable Discovery...........................................................................60

3. Inadequate Causal Connection Attenuation of the Taint..................624. The Good Faith Exception to the Exclusionary Rule...........................635. Exception for Violations of Knock and Announce............................656. Exception for Certain Department Violations.....................................66

E. Suppression Hearings................................................................................66III. Police Interrogation and the Privilege Against Self-Incrimination.....................67

A. Due Process and the Requirement for Voluntariness.................................671. The Requirement for Voluntariness....................................................672. Determining Whether a Confession is Voluntary................................68

a. Burden of Proof...........................................................................68b. Factors to be Considered............................................................68

3. Is the Voluntariness Test Desirable?...................................................714. Coercive Questioning, Torture, and the War on Terrorism..................71

B. Fifth Amendment Limited on In-Custodial Interrogation............................711. Miranda v. Arizona and Its Affirmation by the Supreme Court...........712. Is Miranda Desirable?.........................................................................743. What are the Requirements for Miranda to Apply?............................74

a. When is a Person In Custody?.................................................75b. What is an Interrogation?........................................................76c. What is Required of the Police?...................................................79

4. What are the Consequences of a Violation of Miranda?.....................805. What are the Exceptions to Miranda?................................................83

a. Impeachment..............................................................................84b. Emergencies...............................................................................84c. Booking Exception......................................................................85d. Waiver.........................................................................................86

C. The Sixth Amendment Right to Counsel and Police Interrogations...........901. The Sixth Amendment Right to Counsel During Interrogations..........902. The Sixth Amendment Right to Counsel Is Offense Specific..............92

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3. Waivers..............................................................................................934. What is Impermissible Police Eliciting of Statements?.......................94

IV. Identification Procedures.................................................................................96A. The Right to Counsel.................................................................................96

1. The Right to Counsel in Lineups.........................................................962. Limits on the Right to Counsel in Identification Procedures...............97

B. Due Process Protection for Identification Procedures................................981. Unnecessarily Suggestive Identification Procedures Violate Due Process. 982. Limits on the Ability of Courts to Find That Identification ProceduresViolate Due Process.................................................................................99

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I. Searches and Seizures

A. Introduction

The Fourth Amendment states:

the right of the people to be secure in their persons, houses, papers,and effects against unreasonable searches and seizures, shall not beviolated, and no warrants shall issue, but upon probable cause,supported by oath or affirmation, and particularly describing the placeto be searched and the persons or things to be seized.

The central requirement of the Fourth Amendment is one ofreasonableness. Illinois v. MacArthur.

The Fourth Amendment only applies within the United States. Verdugo-Urquidez.

B. What is a Search?

Katz v. United States, 389 US 347 (1967) [Reasonable Expectation ofPrivacy]

Defendant was convicted of transmitting wagering information bytelephone in violation of a federal statute. At the trial, the governmentwas permitted, over defendant's objection, to introduce evidence ofdefendant's end of telephone conversations, which was overheard byFBI agents who had attached an electronic listening and recordingdevice to the outside of the public telephone booth where he hadplaced his calls.

Supreme Court reversed, finding that a person in a telephone booth

could rely upon the protection of U.S. Const. amend. IV. One whooccupied a telephone booth, shut the door behind him, and paid thetoll that permitted him to place a call was entitled to assume that thewords he uttered into the mouthpiece would not be broadcast to theworld.

The Fourth Amendment protects people, not places. What a personknowingly exposes to the public, even in his own home or office, is nota subject of Fourth Amendment protection. But what he seeks topreserve as private, even in an area accessible to the public, may beconstitutionally protected.

The touchstone of U.S. Const. amend. IV analysis is whether a person

has a constitutionally protected reasonable expectation of privacy.This is a two-part inquiry:

first, has the individual manifested a subjective expectation ofprivacy in the object of the challenged search?

Second, is society willing to recognize that expectation asreasonable?

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As to this second inquiry under Katz, the test of legitimacy is notwhether the individual chooses to conceal assertedly "private"activity, but instead whether the government's intrusioninfringes upon the personal and societal values protected byU.S. Const. amend. IV.

1. Open Fields Oliver v. United States, 466 US 170 (1984)

Petitioner was arrested and indicted after police officers, without awarrant and without probable cause, investigated and discovered amarijuana field a mile from petitioner's home that was surroundedby "no trespass" signs. Applying the open fields doctrine, the lowercourt held that petitioner's rights under U.S. Const. amend. IV hadnot been violated.

Noting that the U.S. Const. amend. IV protection againstunreasonable searches did not extend to intrusions into openfields, the court affirmed the introduction of the evidence inpetitioner's case and reversed the suppression of evidence inrespondent's case. Because the court found that there was noreasonable or legitimate expectation of privacy in open fields, theofficers' actions in entering such open fields without a warrant orprobable cause did not violate the Constitution. Because privacyfor outdoor activities conducted in fields only extended to the areaimmediately surrounding the home, the court affirmed the validityof the open fields doctrine.

The special protection accorded by the U.S Const. amend. IV to thepeople in their persons, houses, papers, and effects is not

extended to the open fields. The distinction between the latter andthe house is as old as the common law. Nor are the open fields"effects" within the meaning of the Fourth Amendment.

The Fourth Amendment does not protect the merely subjectiveexpectation of privacy, but only those expectations that society isprepared to recognize as "reasonable."

No single factor determines whether an individual legitimately mayclaim under the Fourth Amendment that a place should be free ofgovernment intrusion not authorized by warrant. In assessing thedegree to which a search infringes upon individual privacy, theUnited States Supreme Court has given weight to such factors as

the intention of the Framers of the Fourth Amendment, the uses to which the individual has put a location, and

the societal understanding that certain areas deserve the mostscrupulous protection from government invasion.

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These factors are equally relevant to determining whether the government'sintrusion upon open fields without a warrant or probable cause violatesreasonable expectations of privacy and is therefore a search proscribed by theAmendment.

An individual may not legitimately demand privacy for activitiesconducted out of doors in fields, except in the area immediately

surrounding the home. This rule is true to the conception of theright to privacy embodied in the Fourth Amendment. TheAmendment reflects the recognition of the Framers that certainenclaves should be free from arbitrary government interference.For example, the Court since the enactment of the FourthAmendment has stressed the overriding respect for the sanctity ofthe home that has been embedded in our traditions since theorigins of the Republic. In contrast, open fields do not provide thesetting for those intimate activities that the Amendment isintended to shelter from government interference or surveillance.There is no societal interest in protecting the privacy of those

activities, such as the cultivation of crops, that occur in open fields. As a practical matter these lands usually are accessible to the

public and the police in ways that a home, an office, or commercialstructure would not be. It is not generally true that fences or "NoTrespassing" signs effectively bar the public from viewing openfields in rural areas.

United States v. Dunn, 480 US 294 (1987)

Drug enforcement agents began investigating defendant after hepurchased large quantities of chemicals used to manufactureillegal drugs. The agents watched defendant place the chemicals ina barn on his ranch and observed a laboratory. Agents then made a

warrantless entry on the property to confirm their suspicions. Afterobtaining a warrant, the agents arrested defendant. Defendant wasconvicted of drug-related offenses. The appellate court reverseddefendant's conviction finding that the evidence should have beensuppressed because it was seized pursuant to the unlawfulwarrantless entry. The appellate court also found that the barn waswithin the protective ambit of the Fourth Amendment because itwas within the curtilage of the residence.

On appeal, the court held that the barn lay outside the curtilage ofthe ranch house. The barn was 50 yards from the fencesurrounding the house and 60 yards from the house itself. The barndid not lie within the area surrounding the house that was enclosedby a fence. Agents also knew that the barn was not being used forintimate activities of the home.

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The curtilage concept originated at common law to extend to thearea immediately surrounding a dwelling house the sameprotection under the law of burglary as was afforded the houseitself. The concept plays a part, however, in interpreting the reachof the Fourth Amendment. The Fourth Amendment's protectionaccorded persons, houses, papers, and effects did not extend to

the open fields. The distinction between a person's house and openfields is as old as the common law.

Curtilage questions should be resolved with particular reference tofour factors:

the proximity of the area claimed to be curtilage to the home,

whether the area is included within an enclosure surroundingthe home,

the nature of the uses to which the area is put, and

the steps taken by the resident to protect the area fromobservation by people passing by.

The Fourth Amendment has never been extended to require lawenforcement officers to shield their eyes when passing by a homeon public thoroughfares.

2. Aerial Searches

California v. Ciraolo, 476 US 207 (1986)

Warrantless aerial observation of individual's fenced-in backyardheld not to violate Fourth Amendment.

Although defendant's yard was within the curtilage of his home,this did not bar police observation. The Court stated that FourthAmendment protection of the home had never been extended to

require law enforcement officers to shield their eyes when passingby a home on public thoroughfares. Nor did the mere fact thatdefendant had erected a 10-foot fence around his yard preclude anofficer's observations from a public vantage point where he had aright to be and which rendered activities clearly visible.Defendant's expectation that his yard was protected fromobservation was unreasonable and not an expectation that societywas prepared to honor.

That the area is within the curtilage does not itself bar all policeobservation. 4th amendment protection of the home has neverbeen extended to require law enforcement officers to shield their

eyes when passing by a home on public thoroughfares. Nor doesthe mere fact that an individual has taken measures to restrictsome views of his activities preclude an officer's observations froma public vantage point where he has a right to be and whichrenders the activities clearly visible. What a person knowinglyexposes to the public, even in his own home or office, is not asubject of 4th amendment protection.

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Dow Chemical v. United States, 476 US 227 (1986)

The taking of aerial photographs of an industrial plant complexfrom navigable airspace is not a search prohibited by the FourthAmendment.

Florida v. Riley, 488 US 445 (1989)

The police flew over a greenhouse located on defendant's property

in a helicopter at 400 feet, looked into the greenhouse and sawmarijuana. The police then obtained a search warrant for thegreenhouse and seized the marijuana. The property surveyed waswithin the curtilage of defendant's home and, therefore, subject tosearch without a warrant. Although defendant no doubt intendedand expected that his greenhouse would not be open to publicinspection and took precautions to protect against ground-levelobservation, because the sides and roof of his greenhouse were leftpartially open, what was growing in the greenhouse was subject toviewing from the air. Defendant could not reasonably haveexpected the contents of his greenhouse to be immune from

examination by an officer seated in an aircraft flying in navigableairspace at an altitude of 500 feet where such private andcommercial flight at that altitude was routine.

Plurality

White

The accused could not reasonably have expected that hisgreenhouse was protected from public or official observationfrom a helicopter which was not violating the law or FederalAviation Administration (FAA) regulations by flying over thegreenhouse at an altitude of 400 feet.

O'Connor

The relevant inquiry was not whether the helicopter waswhere it had a right to be under FAA regulations, but whetherit was in the public airways at an altitude at which membersof the public traveled with sufficient regularity that theaccused's expectation of privacy from aerial observation wasreasonable.

Brennan, Dissent

Was a "search" for which a warrant was required under theFourth Amendment, because public aerial observation from thataltitude of the accused's curtilage was not so commonplace that

the accused's expectation of privacy in his backyard could beconsidered unreasonable.

3. Thermal Imaging of Homes

Kyllo v. United States, 533 US 27 (2001)

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The police had aimed a thermal-imaging device at petitioner'sresidence after a police detective suspected that petitioner wasgrowing marijuana. Based on the thermal-imaging information,police obtained a search warrant for the residence.

When the police obtain by sense-enhancing technology anyinformation regarding the interior of the home that could not

otherwise have been obtained without physical intrusion into aconstitutionally protected area, that constitutes a search, at leastwhere the technology in question is not in general public use. Thisassures preservation of that degree of privacy against governmentthat existed when the Fourth Amendment was adopted.

Where the government uses a device that is not in general publicuse, to explore details of the home that would previously havebeen unknowable without physical intrusion, the surveillance is a"search" and is presumptively unreasonable without a warrant.

Stevens, dissent

Was nothing more than drawing inferences from "off-the-wall"

surveillance, rather than any "through-the-wall" surveillance,the agent's conduct did not amount to a search and wasperfectly reasonable.

4. Searches of Trash

California v. Greenwood, 486 US 35 (1988)

The arrestees claimed that they had exhibited an expectation ofprivacy in the trash that was searched by the police because it wasin opaque bags on the street for collection at a fixed time and therewas little likelihood that it would be inspected by anyone.

The warrantless search and seizure of garbage bags left at the curboutside a house violates U.S. Const. amend. IV only if therespondents manifest a subjective expectation of privacy in theirgarbage that society accepts as objectively reasonable.

It is common knowledge that plastic garbage bags left on or at theside of a public street are readily accessible to animals, children,scavengers, snoops, and other members of the public. Those whohave deposited garbage in an area particularly suited for publicinspection and, in a manner of speaking, public consumption, forthe express purpose of having strangers take it, could have noreasonable expectation of privacy in any inculpatory items that

they discarded. Brennan, Dissent

Scrutiny of another's trash is contrary to accepted notions ofcivilized behavior.

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5. Observation and Monitoring of Public Behavior

United States v. Knotts, 460 US 276 (1983)

The issue was whether governmental surveillance conducted bymeans of the beeper, which amounted principally to the followingof an automobile on public streets and highways, violateddefendant's 4th amendment rights.

No expectation of privacy extended to the visual observation ofdefendant's automobile arriving on his premises after leaving apublic highway, nor to movements of objects such as the drum ofchloroform outside the cabin in the open fields. The Court foundthat nothing in the Fourth Amendment prohibited the police fromaugmenting the sensory faculties bestowed upon them at birthwith such enhancement as science and technology afforded themin this case. The Court held that there was neither a search nor aseizure within the contemplation of the Fourth Amendment.

One has a lesser expectation of privacy in a motor vehicle because

its function is transportation and it seldom serves as one'sresidence or as the repository of personal effects. A car has littlecapacity for escaping public scrutiny. It travels public thoroughfareswhere both its occupants and its contents are in plain view. Aperson traveling in an automobile on public thoroughfares has noreasonable expectation of privacy in his movements from oneplace to another.

United States v. Karo, 468 US 705 (1984)

Government agents, acting without a warrant, placed a beeper in acan of ether. Monitoring of the beeper led to a search of aresidence, which yielded illegal drugs. A warrant was not required

for the placement of the beeper in the can because the can wasowned by the government, and it was switched with a can ownedby a government informant. Moreover, the Court ruled that thetransfer of the can from the informant to respondents was not asearch or seizure because the transfer did not invade respondents'privacy.

The monitoring of a beeper in a private residence, a location notopen to visual surveillance, violates the Fourth Amendment rightsof those who have a justifiable interest in the privacy of theresidence.

United States v. White, 401 US 745 (1971)

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Concededly a police agent who conceals his police connectionsmay write down for official use his conversations with a defendantand testify concerning them, without a warrant authorizing hisencounters with the defendant and without otherwise violating thelatter's 4th amendment rights. For constitutional purposes, nodifferent result is required if the agent instead of immediately

reporting and transcribing his conversations with defendant, eithersimultaneously records them with electronic equipment which he iscarrying on his person, or carries radio equipment whichsimultaneously transmits the conversations either to recordingequipment located elsewhere or to other agents monitoring thetransmitting frequency.

No reasonable expectation of privacy in bank records. CaliforniaBankers Assn v. Schultz

Smith v Maryland, 442 US 735 (1979)

After the victim of a robbery began receiving phone calls from theperson who claimed to be the robber, the police installed a pen

register, without a warrant, at the central telephone system inorder to determine the identity of the numbers that petitioner, asuspect, was dialing. After the police discovered that petitioner hadcalled the victim, they charged him with robbery.

The Court found that petitioner did not have a legitimateexpectation of privacy regarding the numbers he dialed on hisphone because those numbers were automatically turned over to athird party, the phone company. The Court also ruled that even ifpetitioner did harbor some subjective expectation that the phonenumbers he dialed would remain private, this expectation was notone that society was prepared to recognize as "reasonable." Thus,

the Court concluded that installation of the pen register was not a"search" and no warrant was required.

Congressional Change: statute requires a court order foruse of a pen register.

Patriot Act: AG can use pen register on authority of ForeignIntelligence Surveillance Court when not concerning a UScitizen or for terrorism investigations.

6. Use of Dogs to Sniff for Contraband

United States v. Place, 462 US 696 (1983) [Airport]

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A "canine sniff" by a well-trained narcotics detection dog, however,does not require opening the luggage. It does not exposenoncontraband items that otherwise would remain hidden frompublic view, as does, for example, an officer's rummaging throughthe contents of the luggage. Thus, the manner in which informationis obtained through this investigative technique is much less

intrusive than a typical search. Moreover, the sniff discloses onlythe presence or absence of narcotics, a contraband item. Thus,despite the fact that the sniff tells the authorities something aboutthe contents of the luggage, the information obtained is limited.This limited disclosure also ensures that the owner of the propertyis not subjected to the embarrassment and inconvenience entailedin less discriminate and more intrusive investigative methods.

Exposure of respondent's luggage, which was located in a publicplace, to a trained canine -- did not constitute a "search" within themeaning of the Fourth Amendment.

Illinois v. Caballes, 543 US 405 (2005)

A seizure that is lawful at its inception can violate the FourthAmendment if its manner of execution unreasonably infringesinterests protected by the United States Constitution. A seizurethat is justified solely by the interest in issuing a warning ticket to adriver can become unlawful if it is prolonged beyond the timereasonably required to complete that mission.

The use of a well-trained narcotics-detection dog--one that doesnot expose noncontraband items that otherwise would remainhidden from public view--during a lawful traffic stop, generally doesnot implicate legitimate privacy interests.

A dog sniff conducted during a concededly lawful traffic stop thatreveals no information other than the location of a substance thatno individual has any right to possess does not violate the FourthAmendment.

C. The Requirement for Probable Cause

Carroll v. United States, 267 US 132 (1978)

Probable cause is met if the facts and circumstances before the officerare such as to warrant a man of prudence and caution in believingthat the offense has been committed.

1. Sufficient Belief to Meet the Standard forProbable Cause

Aguilar-Spinelli two part test

Required:

Was the informant credible was it likely that he or she wastellling the truth?

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Was it likely that the informant had knowledge?

Replaced by Gates totality test

Illinois v. Gates, 462 US 213 (1983)

An informant's "veracity," "reliability," and "basis of knowledge"are all highly relevant in determining the value of his report. Theseelements, however, should not be understood as entirely separate

and independent requirements to be rigidly exacted in every case.Rather, they should be understood simply as closely intertwinedissues that may usefully illuminate the commonsense, practicalquestion whether there is "probable cause" to believe thatcontraband or evidence is located in a particular place.

Probable cause is a fluid concept -- turning on the assessment ofprobabilities in particular factual contexts -- not readily, or evenusefully, reduced to a neat set of legal rules. Informants' tipsdoubtless come in many shapes and sizes from many differenttypes of persons. Informants' tips, like all other clues and evidencecoming to a policeman on the scene, may vary greatly in their

value and reliability. Rigid legal rules are ill-suited to an area ofsuch diversity. One simple rule will not cover every situation.

The "two-pronged test" directs analysis into two largelyindependent channels -- the informant's "veracity" or "reliability"and his "basis of knowledge." There are persuasive argumentsagainst according these two elements such independent status.Instead, they are better understood as relevant considerations inthe totality-of-the-circumstances analysis that traditionally hasguided probable-cause determinations: a deficiency in one may becompensated for, in determining the overall reliability of a tip, by astrong showing as to the other, or by some other indicia ofreliability.

The term "probable cause," according to its usual acceptation,means less than evidence which would justify condemnation. Itimports a seizure made under circumstances which warrantsuspicion. The quanta of proof appropriate in ordinary judicialproceedings are inapplicable to the decision to issue a warrant.Finely tuned standards such as proof beyond a reasonable doubt orby a preponderance of the evidence, useful in formal trials, haveno place in the magistrate's decision. While an effort to fix somegeneral, numerically precise degree of certainty corresponding to"probable cause" may not be helpful, it is clear that only theprobability, and not a prima facie showing, of criminal activity isthe standard of probable cause.

Maryland v. Pringle, 540 US 366 (2003)

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In addition to the driver and a back set passenger, defendant was afront seat passenger in a vehicle which was stopped for speeding.Upon a consensual search, a significant amount of cash was foundin the glove compartment of the vehicle and drugs were discoveredbetween the back-seat armrest and the back seat. Althoughdefendant subsequently admitted that the drugs and cash were

his, none of the vehicle occupants admitted to ownership of thedrugs at the time of the search, and all three occupants werearrested.

It was an entirely reasonable inference that any or all three of theoccupants had knowledge of, and exercised dominion and controlover, the drugs, and thus a reasonable officer could conclude thatthere was probable cause to believe defendant committed thecrime of possession of drugs, either solely or jointly. It was alsoreasonable for the officer to infer a common enterprise among thethree occupants, in view of the likelihood of drug dealing in whichan innocent party was unlikely to be involved.

The probable-cause standard is a practical, nontechnicalconception that deals with the factual and practical considerationsof everyday life on which reasonable and prudent men, not legaltechnicians, act.

The substance of all the definitions of probable cause is areasonable ground for belief of guilt, and the belief of guilt must beparticularized with respect to the person to be searched or seized.

The term "probable cause," according to its usual acceptation,means less than evidence which would justify condemnation. Itimports a seizure made under circumstances which warrantsuspicion.

To determine whether an officer had probable cause to arrest anindividual, a court examines the events leading up to the arrest,and then decides whether these historical facts, viewed from thestandpoint of an objectively reasonable police officer, amount toprobable cause.

2. An Objective or Subjective Standard?

Whren v. United States, 517 US 806 (1996)

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Plainclothes vice-squad officers were patrolling "high drug area" inan unmarked car. An officer who had observed traffic violationsapproached a vehicle that was occupied by defendants. When theofficer approached defendant driver's car window, he observed twolarge plastic bags of what appeared to be crack cocaine indefendant passenger's hands. Defendants were arrested and illegal

drugs were retrieved from the vehicle. On appeal, defendantsaccepted that the officer had probable cause to believe the trafficcode was violated, but argued that the test for traffic stops shouldhave been whether a police officer, who acted reasonably, wouldhave made stop for the given reason.

An automobile stop is thus subject to the constitutional imperativethat it not be "unreasonable" under the circumstances. As ageneral matter, the decision to stop an automobile is reasonablewhere the police have probable cause to believe that a trafficviolation has occurred.

The constitutional reasonableness of traffic stops does not depend

on the actual motivations of the individual officers involved.Subjective intentions play no role in ordinary, probable-causeFourth Amendment analysis.

Devenpeck v. Alford, 543 US 146 (2004)

An arresting officer's state of mind (except for the facts that heknows) is irrelevant to the existence of probable cause. That is tosay, his subjective reason for making the arrest need not be thecriminal offense as to which the known facts provide probablecause.

The fact that the officer does not have the state of mind which ishypothecated by the reasons which provide the legal justificationfor the officer's action does not invalidate the action taken as longas the circumstances, viewed objectively, justify that action.

D. The Warrant Requirement

The 4th Amendment provides that: no Warrants shall issue, but uponprobable cause, supported by oath or affirmation, and particularlydescribing the place to be searched. And the persons or things to beseized.

1. What Information Must Be Included in the

Application for a Warrant? Must be supported by oath or affirmation,

Particularly describing the place to be searched,

The persons or things to be seized.

The warrant will specify the time period for its execution.

Must be issued by a neutral and detached magistrate.

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2. What Form Must the Warrant Take?

Andresen v. Maryland, 427 US 463 (1976)

Petitioner, as the closing attorney, was convicted of false pretensesfor defrauding a purchaser of property. Investigators obtained asearch warrant to search petitioner's offices for evidence of thecrime. The court also rejected petitioner's argument that thesearches were unreasonable because they were based on generalwarrants. The warrants referred only to the crime of false pretensesand were sufficiently specific.

State search warrants issued for searches of the business offices ofan individual suspected of having committed the state crime offalse pretenses in connection with his real estate activitiesinvolving a certain "Lot 13T" are not rendered fatally general by theaddition, in each warrant, to the exhaustive list of particularlydescribed documents, of the phrase "together with other fruits,instrumentalities and evidence of crime at this [time] unknown,"

where the quoted phrase was not a separate sentence, butappeared in each warrant at the end of a sentence containing alengthy list of specified and particular items to be seized, allpertaining to "Lot 13T," so that in context the term "crime" in thewarrants referred only to the crime of false pretenses with respectto the sale of such lot.

General warrants, which pose the problem not of intrusion per se,but of a general, exploratory rummaging in a person's belongings,are prohibited by the Fourth Amendment, which addresses theproblem posed by a general warrant by requiring a particulardescription of the things to be seized; such requirement makes

general searches impossible and prevents the seizure of one thingunder a warrant describing another, leaving nothing to thediscretion of the officer executing the warrant as to what is to betaken.

A specific list of documents to be seized that is contained in statesearch warrants issued for searches of the business offices of anindividual suspected of having committed the state crime of falsepretenses in connection with his real estate activities regarding acertain subdivision does not constitute an impermissible "general"warrant, where the investigation was one of a complex real estatescheme whose existence could be proved only by piecing together

many bits of evidence; the complexity of an illegal scheme may notbe used as a shield to avoid detection when the state hasdemonstrated probable cause to believe that a crime has beencommitted and probable cause to believe that evidence of thiscrime is in the suspect's possession.

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The seizure of documents pertaining to a lot other than "Lot 13T"by trained special investigators during searches of an individual'sbusiness offices pursuant to state warrants, which warrants listedspecified items pertaining to Lot 13T to be seized together withother fruits, instrumentalities, and evidence of crime at the timeunknown, does not violate the rule that when police seize mere

evidence probable cause must be examined in terms of cause tobelieve that the evidence sought will aid in a particularapprehension or conviction, and such documents are properlyadmitted into evidence in the individual's state prosecution for thecrime of false pretenses (a crime for which the state must proveintent to defraud beyond a reasonable doubt), based upon theindividual's misrepresentations concerning Lot 13T to thepurchaser of such lot, where the trained special investigatorsreasonably could have believed that the evidence specificallydealing with another lot could be used to show the individual'sintent with respect to the Lot 13T transaction.

Groh v. Ramirez, 540 US 551 (2004) The issues were whether the search violated the Fourth

Amendment, and if so, whether the federal agent was entitled toqualified immunity, given that a magistrate, relying on an affidavitthat particularly described the items in question, found probablecause to conduct the search. The warrant was plainly invalid as itprovided no description of the type of evidence sought. The factthat the application adequately described the things to be seizeddid not save the warrant from its facial invalidity because thewarrant did not incorporate other documents by reference andneither the affidavit nor the application accompanied the warrant.

The magistrate's authorization of the search did not render itconstitutional because the warrant's obvious deficiency requiredthe court to consider the search warrantless and presumptivelyunreasonable. The federal agent was not entitled to qualifiedimmunity because no reasonable officer could have believed that awarrant that plainly did not comply with the Fourth Amendment'sparticularity requirements was valid nor been unaware of the basicrule that, absent consent or exigency, a warrantless search waspresumptively unconstitutional.

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The fact that a warrant application adequately describes the thingsto be seized does not save the warrant from its facial invalidity. TheFourth Amendment by its terms requires particularity in thewarrant, not in the supporting documents. And for good reason:The presence of a search warrant serves a high function and thathigh function is not necessarily vindicated when some other

document, somewhere, says something about the objects of thesearch, but the contents of that document are neither known to theperson whose home is being searched nor available for herinspection. The Fourth Amendment does not forbid a warrant fromcross-referencing other documents. Indeed, most United StatesCourts of Appeals hold that a court may construe a warrant withreference to a supporting application or affidavit if the warrant usesappropriate words of incorporation, and if the supporting documentaccompanies the warrant.

Because the right of a man to retreat into his own home and therebe free from unreasonable governmental intrusion stands at the

very core of the Fourth Amendment, judicial precedent firmlyestablishes the basic principle of Fourth Amendment law thatsearches and seizures inside a home without a warrant arepresumptively unreasonable. Thus, absent exigent circumstances,a warrantless entry to search for weapons or contraband isunconstitutional even when a felony has been committed and thereis probable cause to believe that incriminating evidence will befound within.

Thomas Dissent

The search did not violate the Fourth Amendment, because,despite the defective warrant, the search was not unreasonable.

United States v. Grubbs, 547 US 90 (2006) An anticipatory warrant is a warrant based upon an affidavit

showing probable cause that at some future time (but notpresently) certain evidence of crime will be located at a specifiedplace. Most anticipatory warrants subject their execution to somecondition precedent other than the mere passage of time--a so-called "triggering condition."

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Anticipatory warrants are no different in principle from ordinarywarrants. They require the magistrate to determine (1) that it isnow probable that (2) contraband, evidence of a crime, or afugitive will be on the described premises (3) when the warrant isexecuted. It should be noted, however, that where the anticipatorywarrant places a condition (other than the mere passage of time)

upon its execution, the first of these determinations goes notmerely to what will probably be found if the condition is met. (Ifthat were the extent of the probability determination, ananticipatory warrant could be issued for every house in thecountry, authorizing search and seizure if contraband should bedelivered--though for any single location there is no likelihood thatcontraband will be delivered.) Rather, the probability determinationfor a conditioned anticipatory warrant looks also to the likelihoodthat the condition will occur, and thus that a proper object ofseizure will be on the described premises.

3. What are the Requirement in Executing Warrants?

a. How May Police Treat Those Who Are present When a WarrantIs Being Executed?

Muehler v. Mena, 544 US 93 (2005)

The individual's detention during the search of the premises wasplainly permissible because a warrant existed to search aparticular residence and the individual was an occupant of thatresidence at the time of the search. The officers' use ofhandcuffs to effectuate the detention was reasonable where the

warrant authorized a search for weapons and a wanted gangmember resided on the premises. Thus, the use of handcuffsminimized the inherent safety risk involved in the search.Moreover, the need to detain multiple occupants of thepremises made the use of handcuffs all the more reasonable.

The two to three hour detention in handcuffs was notunreasonable given that the case involved the detention of fourpeople by two officers during a search of a gang house fordangerous weapons.

The officers' questioning of the individual about her immigrationstatus was not an independent Fourth Amendment violation

because mere police questioning was not a seizure.

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Officers executing a search warrant for contraband have theauthority to detain the occupants of the premises while a propersearch is conducted. Such detentions are appropriate becausethe character of the additional intrusion caused by detention isslight and because the justifications for detention aresubstantial. The detention of an occupant is surely less intrusive

than the search itself and the presence of a warrant assuresthat a neutral magistrate has determined that probable causeexists to search the home. Against this incremental intrusion,there are three legitimate law enforcement interests thatprovide substantial justification for detaining an occupant:

(1) preventing flight in the event that incriminating evidenceis found;

(2) minimizing the risk of harm to the officers; and

(3) facilitating the orderly completion of the search, asdetainees' self-interest may induce them to open lockeddoors or locked containers to avoid the use of force.

b. Do Police have to Knock and Announce?

Wilson v. Arkansas, 514 US 927 (1995)

Defendant was convicted of delivery and possession of drugsafter police officers, in executing a search warrant, enteredthrough an unlocked screen door without first knocking orannouncing their presence.

Supreme Court held that the common-law knock and announceprinciple formed a part of the Fourth Amendmentreasonableness inquiry and a search or seizure of a dwelling

might be constitutionally defective if police officers enteredwithout prior announcement, and remanded the case todetermine whether the unannounced entry was reasonableunder the circumstances.

Although a search or seizure of a dwelling might beconstitutionally defective if police officers enter without priorannouncement, law enforcement interests may also establishthe reasonableness of an unannounced entry.

Richards v. Wisconsin, 520 US 385 (1997)

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Police executed a search warrant for petitioner's hotel roomseeking evidence of the felonious crime of possession withintent to deliver a controlled substance They did not knock andannounce prior to their entry and drugs were seized. At trial,petitioner sought to exclude evidence on the ground that theofficers had failed to knock-and-announce. The court affirmed

the judgment against petitioner because it found the officers'decision not to knock-and-announce was reasonable under thecircumstances of this case, but found that the blanket exceptionto the knock-and-announce requirement for felony druginvestigations was unconstitutional.

In order to justify a "no-knock" entry, the police must have areasonable suspicion that knocking and announcing theirpresence, under the particular circumstances, would bedangerous or futile, or that it would inhibit the effectiveinvestigation of the crime by, for example, allowing thedestruction of evidence. This showing is not high, but the police

should be required to make it whenever the reasonableness of a"no-knock" entry is challenged.

c. What if There Are Unforeseen Circumstances orMistakes While Executing a Warrant?

Maryland v. Garrison, 480 US 79 (1987)

The evidence had been seized in a search conducted pursuant awarrant that specified a location of "the premises known as2036 Park Avenue third floor apartment." The police reasonablybelieved that there was only one apartment on the premisesdescribed in the warrant. However, there were two apartmentson the third floor. Before the officers executing the warrantbecame aware that they were in a separate apartment occupiedby defendant, they had discovered the contraband thatprovided the basis for defendant's conviction. The questionpresented to the Court was whether the seizure of thecontraband was prohibited by the Fourth Amendment.

The Court held that the warrant was valid when it was issuedand the manner in which it was executed was reasonable. Thevalidity of the warrant was assessed on the basis of theinformation that the officers disclosed, or had a duty to discover

and to disclose, to the issuing magistrate. The officers'execution of the warrant reasonably included the entire thirdfloor, and their conduct was consistent with a reasonable effortto ascertain and identify the place intended to be searchedwithin the meaning of the Fourth Amendment.

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The warrant was executed in a reasonable manner, satisfyingthe Fourth Amendment, since the officers' failure to realize theoverbreadth of the warrant was objectively understandable andreasonable, and since they discontinued the search as soon asthey discovered their mistake.

Los Angeles County v. Rettele, 127 S.Ct. 1989 (2007)

The residents recently purchased the home and asserted that,although they were not the same race as the suspects beingsought under the warrant, the deputies ordered the residents toget out of their bed and remain unclothed until the deputiesdetermined that the suspects were not present.

The U.S. Supreme Court held that the execution of the properlyissued warrant by the deputies was not unreasonable.Regardless of the difference in race, when the residents wereordered from their bed the deputies had no way of knowingwhether the suspects were elsewhere in the home. Further, oneof the suspects was reported to be armed, and the deputies

were justified in ordering the residents from the bed, andrefusing to allow them to dress for a brief period, in order toinsure that no weapons were concealed in the bedding orelsewhere.

The Fourth Amendment allows warrants to issue on probablecause, a standard well short of absolute certainty. Valid warrantswill issue to search the innocent, and innocent peopleunfortunately bear the cost. Officers executing search warrantson occasion enter a house when residents are engaged inprivate activity, and the resulting frustration, embarrassment,and humiliation may be real. When officers execute a valid

warrant and act in a reasonable manner to protect themselvesfrom harm, however, the Fourth Amendment is not violated.

E. Exceptions to the Warrant Requirement

1. Searches Incident to Arrest

Chimel v. California, 395 US 752 (1969)

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Police came to petitioner's home with an arrest warrant to arresthim for an alleged burglary. When petitioner returned from work,police arrested him. Police then asked for permission to "lookaround." Even though petitioner objected, the officers conducted asearch. They looked through the entire house and had petitioner'swife open drawers and physically remove contents of the drawers

so they could view items. Police seized a number of coins andmedals, among other things, that respondent State later used toconvict petitioner of burglary. Reversing the appeals court'saffirmance of conviction, the court held that the search was"unreasonable."

It found that there was no justification for searching any roomother than that in which the arrest occurred. Even searchingthrough desk drawers or other closed or concealed areas of theroom where the arrest occurred was not appropriate. Extending thesearch to the entire house was not proper, and the courtoverturned the conviction.

A search or seizure without a warrant as an incident to a lawfularrest has always been considered to be a strictly limited right. Itgrows out of the inherent necessities of the situation at the time ofthe arrest. But there must be something more in the way ofnecessity than merely a lawful arrest.

When an arrest is made, it is reasonable for the arresting officer tosearch the person arrested in order to remove any weapons thatthe latter might seek to use in order to resist arrest or effect hisescape. Otherwise, the officer's safety might well be endangered,and the arrest itself frustrated. In addition, it is entirely reasonablefor the arresting officer to search for and seize any evidence on the

arrestee's person in order to prevent its concealment ordestruction.

There is no justification for routinely searching any room other thanthat in which an arrest occurs or, for that matter, for searchingthrough all the desk drawers or other closed or concealed areas inthat room itself. Such searches, in the absence of well-recognizedexceptions, may be made only under the authority of a searchwarrant.

United States v. Robertson, 414 US 218 (1973)

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Defendant was pulled over by a police officer. The officer hadprobable cause to arrest defendant for driving after his license hadbeen revoked. The officer then searched defendant and felt anobject under defendant's coat. The officer reached into the coatand pulled out a cigarette package. The officer felt there wassomething in the package that was not cigarettes. The officer

opened the package and found what was later determined to beheroin. The Court reversed the appellate court's decision and foundthe search permissible.

An arrest is a wholly different kind of intrusion upon individualfreedom from a limited search for weapons, and the interests eachis designed to serve are likewise quite different. An arrest is theinitial stage of a criminal prosecution. It is intended to vindicatesociety's interest in having its laws obeyed, and it is inevitablyaccompanied by future interference with the individual's freedomof movement, whether or not trial or conviction ultimately follows.The protective search for weapons, on the other hand, constitutes

a brief, though far from inconsiderable, intrusion upon the sanctityof the person.

The authority to search the person incident to a lawful custodialarrest, while based upon the need to disarm and to discoverevidence, does not depend on what a court may later decide wasthe probability in a particular arrest situation that weapons orevidence would in fact be found upon the person of the suspect.

A custodial arrest of a suspect based on probable cause is areasonable intrusion under the 4th amendment; that intrusion beinglawful, a search incident to the arrest requires no additionaljustification. It is the fact of the lawful arrest, which establishes the

authority to search, and we hold that in the case of a lawfulcustodial arrest a full search of the person is not only an exceptionto the warrant requirement of U.S. Const. amend. IV, but is also areasonable search under that amendment.

Knowles v. Iowa, 525 US 113 (1998)

Full search of automobile, as authorized by Iowa law, by policeofficer who issued speeding citation--rather than making arrest, asauthorized by Iowa law--held to violate Federal Constitution'sFourth Amendment.

There was no need to discover and preserve evidence becauseonce defendant was stopped and issued a citation all the evidencenecessary to prosecute had been obtained. The threat to safetyfrom issuing a traffic citation was significantly less than in the caseof a custodial arrest.

2. Searches Made in Hot Pursuit

Warden v. Hayden, 387 US 294 (1967)

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Neither the entry without warrant to search for a robber, nor thesearch for him without warrant, is invalid where the exigencies ofthe situation made that course imperative, as where the policewere informed that an armed robbery had taken place, and thatthe suspect had entered the house less than 5 minutes before theyreached it; they acted reasonably when they entered the house

and began to search for a man of the description they had beengiven and for weapons which he had used in the robbery or mightuse against them.

The exigencies of a situation may make imperative a warrantlessentry into premises and a subsequent search. The FourthAmendment does not require police officers to delay in the courseof an investigation if to do so would gravely endanger their lives orthe lives of others.

The permissible scope of search for a suspected felon, armed,within a house into which he had run only minutes before thepolice arrived, must, at the least, be as broad as may reasonably

be necessary to prevent the dangers that the suspect at large inthe house may resist or escape.

Even if it is assumed that exigent circumstances made lawful asearch without warrant only for one suspected of armed robbery, orfor his weapons, it cannot be said that the officer who found thesuspect's clothing in a washing machine was not searching forweapons, where, although according to his testimony he wassearching for the man or the money, he knew that the robber wasarmed and he did not know that some weapons had been found atthe time he opened the machine; his failure to state explicitly thathe was searching for weapons, in the absence of a specific

question to that effect, cannot be accorded controlling weight. Payton v. New York, 445 US 573 (1980)

The Fourth and Fourteenth Amendments prohibited the police frommaking a warrantless and nonconsensual entry into a suspect'shome in order to make a routine felony arrest. The Court held thatto be arrested in the home involved not only the invasion attendantto all arrests, but also an invasion of the sanctity of the home,which was too substantial, absent exigent circumstances, evenwhen it was accomplished under statutory authority and whenprobable cause was present.

3. Plain View

Coolidge v. New Hampshire, 403 US 443 (1971)

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The Court rejected the contention that the search of theautomobile was incident to a valid arrest because petitioner wasarrested in his house and the car was outside some distance away.The search did not come within the automobile exception to thewarrant requirement because the automobile was regularly parkedin the driveway and was not fleeing, and the items searched for

were not contraband. Finally, the Court found that the car was notan instrumentality of the crime that could be seized in plain viewbecause the police knew in advance of the car's location and hadample opportunity to obtain a valid warrant.

Under certain circumstances, the police may seize evidence inplain view without a warrant.

Where the initial intrusion that brings the police within plain view ofsuch an article is supported, not by a warrant, but by one of therecognized exceptions to the warrant requirement, the seizure isalso legitimate. Thus the police may inadvertently come acrossevidence while in hot pursuit of a fleeing suspect. And an object

that comes into view during a search incident to arrest that isappropriately limited in scope under existing law may be seizedwithout a warrant. Finally, the plain view doctrine has been appliedwhere a police officer is not searching for evidence against theaccused, but nonetheless inadvertently comes across anincriminating object.

Horton v. California, 496 US 128 (1990)

Petitioner was convicted of the armed robbery of the treasurer of acoin club following denial of his motion to suppress weapons seizedby police from his residence. After an appellate court affirmed theconviction, petitioner sought certiorari. The Supreme Court

affirmed. The Court concluded that, though inadvertence was a

characteristic of most legitimate plain view seizures, it was not anecessary condition, so that the items seized from petitioner'shome were discovered during a lawful search authorized by a validwarrant. When the weapons were discovered, it was immediatelyapparent to the police officer that they constituted incriminatingevidence. The officer had probable cause, not only to obtain awarrant to search for the stolen property, but also to believe thatthe weapons and handguns had been used in the crime he wasinvestigating. The search was authorized by the warrant, and theseizure was authorized by the plain view doctrine. The scope of thesearch was not enlarged in the slightest by the omission of anyreference to the weapons in the warrant.

Two additional conditions must be satisfied to justify thewarrantless seizure.

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First, not only must the item be in plain view, its incriminatingcharacter must also be immediately apparent.

Second, not only must the officer be lawfully located in a placefrom which the object can be plainly seen, but he or she mustalso have a lawful right of access to the object itself.

Arizona v. Hicks, 480 US 321 (1987)

When law enforcement officers entered defendant's apartmentunder exigent circumstances after a bullet was fired into theapartment below, two sets of expensive stereo equipment werenoticed by one of the officers. He thought these anomalous in thecontext of the squalor of the apartment, and moved some of thecomponents in order to read and record their serial numbers.

The officer's moving of the equipment constituted a "search"separate and apart from the search for the shooter, victims, andweapons that was the lawful objective of his entry. Such a searchwas not "reasonable" under the Fourth Amendment because it wasnot sustainable under the "plain view" doctrine.

Probable cause is required in order to invoke the "plain view"doctrine.

Minnesota v. Dickerson, 508 US 366 (1993)

Respondent was arrested and charged with possession of acontrolled substance after a police officer, during a stop and frisk,retrieved a lump of cocaine from respondent's pocket. The trialcourt denied respondent's motion to suppress the cocaine.Respondent proceeded to trial and was found guilty. The statesupreme court affirmed the state court of appeals' decisionreversing the trial court. The state supreme court found that basedon the record before it, the officer determined that the lump wascontraband only after squeezing, sliding, and otherwisemanipulating the contents of respondent's pocket which the officeralready knew contained no weapon. The state supreme court heldthat the stop and the frisk of respondent was valid under Terry, butthat the seizure of the cocaine was unconstitutional. The courtaffirmed. The court stated that the state supreme court was correctin holding that the police officer in this case overstepped thebounds of the "strictly circumscribed" search for weapons allowedunder Terry.

Under the plain-view doctrine, if police are lawfully in a position

from which they view an object, if its incriminating character isimmediately apparent, and if the officers have a lawful right ofaccess to the object, they may seize it without a warrant. If,however, the police lack probable cause to believe that an object inplain view is contraband without conducting some further search ofthe object -- i. e., if its incriminating character is not immediatelyapparent -- the plain-view doctrine cannot justify its seizure.

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4. The Automobile Exception

a. The Exception and Its Rationale

California v. Carney, 471 US 386 (1985)

After receiving information that the exchange of marijuana for

sex was taking place at defendant's motor home, which wasparked on a public lot, law enforcement officials observeddefendant and a youth enter the mobile home. The youth laterstated that he received marijuana in exchange for sexualcontacts with defendant. Without a warrant or consent, oneagent entered the motor home and observed marijuana.Defendant was convicted for possession of marijuana for sale.

The United States Supreme Court reversed, holding thatdefendant's motor home clearly fell within the vehicle exceptionto the warrant requirement because it was readily mobile andwas situated in a way or place that objectively indicated that it

was being used as a vehicle. The privacy interests in an automobile are constitutionally

protected; however, the ready mobility of the automobilejustifies a lesser degree of protection of those interests.

The mobility of automobiles creates circumstances of suchexigency that, as a practical necessity, rigorous enforcement ofthe warrant requirement is impossible.

Besides the element of mobility, less rigorous warrantrequirements govern because the expectation of privacy withrespect to one's automobile is significantly less than thatrelating to one's home or office.

When a vehicle is being used on the highways, or if it is readilycapable of such use and is found stationary in a place notregularly used for residential purposes -- temporary or otherwise-- the two justifications for the vehicle exception come into play.First, the vehicle is obviously readily mobile by the turn of anignition key, if not actually moving. Second, there is a reducedexpectation of privacy stemming from its use as a licensedmotor vehicle subject to a range of police regulationinapplicable to a fixed dwelling.

Chambers v. Maroney, 399 US 42 (1970)

Automobiles and other conveyances may be searched without awarrant in circumstances that would not justify the searchwithout a warrant of a house or an office, provided that there isprobable cause to believe that the car contains articles that theofficers are entitled to seize.

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A search warrant is unnecessary where there is probable causeto search an automobile stopped on the highway; the car ismovable, the occupants are alerted, and the car's contents maynever be found again if a warrant must be obtained. Hence animmediate search is constitutionally permissible.

b. Searches of Containers in Automobiles California v. Acevedo, 500 US 565 (1991)

Defendant placed a bag in the trunk of a car. Police officersstopped him, opened the trunk, and found marijuana. The Courtheld that the Fourth Amendment did not require the police toobtain a warrant to open the sack in a movable vehicle simplybecause they lacked probable cause to search the entire car.The same probable cause to believe that a container held drugsallowed the police to arrest the person transporting thecontainer and search it. The police had probable cause tobelieve that the paper bag in the car's trunk contained

marijuana and probable cause allowed a warrantless search ofthe paper bag. The Fourth Amendment did not compel separatetreatment for an automobile search that extended only to acontainer within the vehicle. The police could search containersfound in an automobile without a warrant if their search wassupported by probable cause.

A warrantless search of an automobile can include a search of acontainer or package found inside the car when such a search issupported by probable cause.

The expectation of privacy in one's vehicle is equal to one'sexpectation of privacy in a container, and the privacy interestsin a car's trunk or glove compartment may be no less thanthose in a movable container.

When a policeman makes a lawful custodial arrest of theoccupant of an automobile, he may, as a contemporaneousincident of that arrest, search the passenger compartment ofthat automobile. It follows from this conclusion that the policemay also examine the contents of any containers found withinthe passenger compartment.

The scope of a warrantless search of an automobile is notdefined by the nature of the container in which the contraband

is secreted. Rather, it is defined by the object of the search andthe places in which there is probable cause to believe that itmay be found. Probable cause to believe that a container placedin the trunk of a taxi contains contraband or evidence does notjustify a search of the entire cab.

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c. Searches Incident to Arrest

New York v. Belton, 453 US 454 (1991) [Replaced by Gant]

Defendant was a passenger in an automobile that sped by apolice officer at a fast rate. Upon stopping the car, the officersmelled marihuana smoke and saw an envelope on the car'sfloor that was marked with a name for marihuana. He therefore

required the occupants to get out of the vehicle and proceededto search them. He opened the envelope and found that itcontained marihuana. He also searched defendant's jacket inthe vehicle and found cocaine. In defendant's subsequent drugprosecution, the trial court denied his motion to suppress theitems seized in the search of the vehicle.

The items seized in the warrantless search of the vehicle'spassenger compartment, incident to defendant's lawfulcustodial arrest, were justifiably seized because of theexigencies of the situation. Thus, the search did not violate thesafeguards of U.S. Const. amend. IV and U.S. Const. amend. XIV.

When a policeman has made a lawful custodial arrest of theoccupant of an automobile, he may, as a contemporaneousincident of that arrest, search the passenger compartment ofthat automobile. The police may also examine the contents ofany containers found within the passenger compartment, for ifthe passenger compartment is within reach of the arrestee, soalso will containers in it be within his reach. Such a containermay, of course, be searched whether it is open or closed, sincethe justification for the search is not that the arrestee has noprivacy interest in the container, but that the lawful custodial

arrest justifies the infringement of any privacy interest thearrestee may have.

"Container" denotes any object capable of holding anotherobject. It thus includes closed or open glove compartments,consoles, or other receptacles located anywhere within thepassenger compartment, as well as luggage, boxes, bags,clothing, and the like. The court's holding encompasses only theinterior of the passenger compartment of an automobile anddoes not encompass the trunk.

Arizona v. Gant, 129 S.Ct. 1710 (2009)

After respondent was arrested for driving with a suspended

license, handcuffed, and locked in the back of a patrol car,police officers searched his car and discovered cocaine in thepocket of a jacket on the backseat. The Court determined thatthe search-incident-to-arrest exception to the FourthAmendment's warrant requirement did not justify the searchbecause

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(1) police could not reasonably have believed thatrespondent could have accessed his car at the time of thesearch since the five officers outnumbered the threearrestees, all of whom had been handcuffed and secured inseparate patrol cars before the officers searchedrespondent's car, and

(2) police could not reasonably have believed that evidenceof the offense for which respondent was arrested might havebeen found in the car since he was arrested for driving with asuspended license, an offense for which police could notexpect to find evidence in the passenger compartment of hiscar. Also, the doctrine of stare decisis did not requireadherence to a broad reading of Belton; the safety andevidentiary interests that supported the search in Beltonsimply were not present in the instant case.

Police may search incident to arrest only the space within an arrestee's"immediate control," meaning the area from within which he might gain

possession of a weapon or destructible evidence. The safety and evidentiaryjustifications underlying Chimel's reaching-distance rule determine Belton's scope.Accordingly, Belton does not authorize a vehicle search incident to a recentoccupant's arrest after the arrestee has been secured and cannot access theinterior of the vehicle. Circumstances unique to the automobile context justify asearch incident to arrest when it is reasonable to believe that evidence of theoffense of arrest might be found in the vehicle.

Thornton v. United States, 541 US 615 (2004)

Police are allowed to search the passenger compartment of avehicle incident to a lawful custodial arrest of both occupantsand recent occupants. While an arrestee's status as a recent

occupant may turn on his temporal or spatial relationship to thecar at the time of the arrest and search, it certainly does notturn on whether he was inside or outside the car at the momentthat the officer first initiated contact with him

The authority for the vehicle search was not limited to arrests ofpersons actually occupying vehicles at the time of initialcontacts with officers, since the same interests in the safety ofthe officer and preservation of evidence applied to bothoccupants and recent occupants of a vehicle.

5. Inventory Searches

South Dakota v. Opperman, 428 US 364 (1976)

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State appealed the judgment that held that local police violatedU.S. Const. amend. IV when they conducted a routine inventorysearch of an automobile lawfully impounded by police, contendingthat the search and seizure was not unreasonable. On appeal, thejudgment was reversed and remanded on the basis that the policewere indisputably engaged in a caretaking search and such was

not unreasonable. The court reasoned that the owner, having left his car illegally

parked for an extended period and thus subject to impoundment,was not present to make other arrangements for the safekeepingof his belongings. Further, the inventory itself was prompted by thepresence in plain view of a number of valuables inside the car. Thecourt held that there was no suggestion whatever that thestandard procedure was a pretext concealing an investigatorypolice motive. The court concluded that in following standardpolice procedures the conduct of the police was not unreasonableunder U.S. Const. amend. IV.

When vehicles are impounded, local police departments generallyfollow a routine practice of securing and inventorying theautomobiles' contents. The procedures developed in response tothree distinct needs:

the protection of the owner's property while it remains in policecustody,

the protection of the police against claims or disputes over lostor stolen property, and

the protection of the police from potential danger.The practice has been viewed as essential to respond to incidents of theft orvandalism. Police frequently attempt to determine whether a vehicle has beenstolen and thereafter abandoned.

Illinois v. Lafayette, 462 US 640 (1983)

Defendant was arrested for disturbing the peace. When he arrivedat the police station, he removed cigarettes from the shoulder baghe was carrying and then placed it on the counter in the station. Aspart of a routine booking procedure, an officer emptied andinventoried the contents of the bag. Narcotics were found in thebag and defendant was subsequently charged with violating thestate's controlled substances statute. On defendant's motion, thestate trial court suppressed the drugs and that judgment was

affirmed on appeal. On certiorari, a majority of the Court held thatthe search was not invalid under the Fourth Amendment.

Specifically, the Court held that because the search was conductedas a part of a routine administrative procedure that was incident todefendant's arrest and incarceration, the search was notunreasonable. In such circumstances, the police could search anycontainer in defendant's possession. The Court reasoned that such

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a search was supported by the State's interest in safeguardingdefendant and his property as well avoiding possible claims of theftby the police.

6. Border Crossing and Checkpoints

United States v. Flores-Montano, 541 US 149 (2004)

The appellate court held that the Fourth Amendment forbade thefuel tank search absent reasonable suspicion. The Supreme Courtfound that complex balancing tests to determine what was a"routine" search of a vehicle, as opposed to a more "intrusive"search of a person, had no place in border searches of vehicles.Searches made at the border were reasonable simply by virtue ofthe fact that they occurred at the border. The United States'authority to conduct suspicionless inspections at the borderincluded the authority to remove, disassemble, and reassemble avehicle's fuel tank.

The United States' interest in preventing the entry of unwantedpersons and effects is at its zenith at the international border.Searches made at the border, pursuant to the longstanding right ofthe sovereign to protect itself by stopping and examining personsand property crossing into the United States, are reasonable simplyby virtue of the fact that they occur at the border.

United States v. Martinez-Fuerte, 428 US 543 (1976)

The Court granted certiorari in consolidated cases arising fromprosecutions for illegal transportation of aliens, in order to resolvea conflict among the lower courts regarding the constitutionality ofthe United States use of permanent checkpoints away from

borders. The Court held that the operation of fixed checkpointsneed not be authorized in advance by warrant, and stops andquestioning could be made in the absence of any individualizedsuspicion at reasonably located checkpoints. The Court employed abalancing test and said that the need to make routine checkpointstops was great, while the intrusion on U.S. Const. amend. IVinterests was limited. Requiring reasonable suspicion would beimpractical because the flow of traffic was too heavy to allow aparticularized study enabling a given car to be identified as apossible carrier of illegal aliens. The Court contrasted the level ofintrusion at a checkpoint stop with that of a roving patrol and also

cited the relatively low expectation of privacy in an automobile.The Court affirmed one respondent's conviction and reversed andremanded the remaining cases with directions to affirm theconviction of another respondent.

United States v. Ramsey, 431 US 606 (1977)

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Defendants were convicted of possession of narcotics. Keyevidence against them was obtained when a customs officersearched international mail intended for respondents. Holding that19 U.S.C.S. 482 authorized the search of letters, and that the"reasonable cause" standard of 482 satisfied the FourthAmendment, the court reversed the judgment.

The court held that the 482 "reasonable cause" standard was lessstringent than the Fourth Amendment "probable cause" standard,and was satisfied where the officer, based on experience, becamesuspicious of a number of similar looking letters originating fromThailand that contained more than letter paper. The court held thata border search was an exception to the warrant requirement, andwas not based upon the existence of "exigent circumstances,"

United States v. Montoya-Hernandez, 473 US 531 (1985)

Defendant entered the United States at an airport. Customsinspectors detained Defendant upon her arrival based upon asuspicion that she was smuggling drugs. Inspectors detained

defendant for at least 16 hours before defendant passed balloonsfilled with cocaine from her alimentary canal. Defendant was giventhe opportunity to undergo an x-ray. Inspectors sought a searchwarrant after several hours.The court held that the standard to beapplied at the border was a reasonable suspicion. Based on thefacts of this case, the length of time defendant was detained wasreasonable. The court reversed the appellate court and uphelddefendant's conviction.

Under the reasonable suspicion standard, officials at the bordermust have a particularized and objective basis for suspecting theparticular person of alimentary canal smuggling.

7. Checkpoints

Michigan Dept of State Police v. Sitz, 496 US 444 (1990)

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Petitioners set up programs for sobriety checkpoints, andrespondents, all licensed drivers, challenged the constitutionality.Respondents argued that the analysis had to proceed from a basisof probable cause or reasonable suspicion, and there must be somegovernmental need beyond the normal need before a balancinganalysis was appropriate. On review the court found that a three

prong test was appropriate, balancing the state's grave andlegitimate interest in curbing drunk driving; the checkpoints weregenerally effective, and the subjective intrusion on individualliberties was not substantial. The court found that a seizureoccurred when a vehicle was stopped at a sobriety checkpoint.However, the court held that such stops were reasonableconsidering the increasing number of alcohol-related deaths andmutilation on the nation's roads. The State program was consistentwith the Fourth Amendment and the balance of the State's interestin preventing drunken driving and the degree of intrusion uponindividual motorists who were briefly stopped weighed in favor of

the State program. The three prong test for determining the constitutionality of a

sobriety checkpoint plan involved

balancing the state's interest in preventing accidents caused bydrunk drivers,

the effectiveness of sobriety checkpoints in achieving that goal,and

the level of intrusion on an individual's privacy caused by thecheckpoints.

City of Indianapolis v. Edmond, 531 US 32 (2000)

Petitioner city operated vehicle checkpoints to interdict unlawfuldrugs. At each checkpoint location, the police stopped apredetermined number of vehicles. Pursuant to written directives,an officer advised the driver that he or she was being stopped at adrug checkpoint and asked the driver to produce a license andregistration. The officer looked for signs of impairment andconducted an open-view examination of the vehicle from theoutside. A narcotics-detection dog walked around the outside ofeach stopped vehicle.

The checkpoints violated U.S. Const. amend. IV because theprimary purpose of the narcotics checkpoint program was to

uncover evidence of ordinary criminal wrongdoing. Because theauthorities pursued primarily general crime control purposes at thecheckpoints, the stops could only be justified by some quantum ofindividualized suspicion.

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In determining whether individualized suspicion is required toaccompany a seizure, the court must consider the nature of theinterests threatened and their connection to the particular lawenforcement practices at issue. The United States Supreme Courtis particularly reluctant to recognize exceptions to the general ruleof individualized suspicion where governmental authorities

primarily pursue their general crime control ends.

8. Consent

Schneckloth v. Bustamonte, 412 US 218 (1973)

Respondent was brought to trial on a charge of possessing a checkwith intent to defraud. Respondent moved to suppress theintroduction of certain material as evidence against him on theground that the material had been acquired through a warrantlesssearch and seizure that were unconstitutional. The court of appealsvacated an order that denied the petition for habeas corpus reliefon grounds that there was insufficient proof that respondent knewthat he had a right to refuse to give his consent to the search. TheCourt disagreed that proof of knowledge of the right to refuseconsent was a necessary prerequisite to demonstrating "voluntary"consent. Rather, the Court held that individual consent could onlybe ascertained by analyzing all of the circumstances. Thetraditional definition of voluntariness, which the Court adhered to,did not require proof of knowledge of a right to refuse as the sinequa non of an effective consent to a search.

In determining whether a defendant's will was over-borne in aparticular case, the court assesses the totality of all the

surrounding circumstances--both the characteristics of the accusedand the details of the interrogation. Some of the factors taken intoaccount include

the youth of the accused; his lack of education or his lowintelligence;

the lack of any advice to the accused of his constitutional rights;

the length of detention;

the repeated and prolonged nature of the questioning; and

the use of physical punishment such as the deprivation of foodor sleep.

The traditional definition of "voluntariness" does not require proof

of knowledge o

2195 crim pro i outline

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