Criminal Procedure I

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CRIMINAL PROCEDURE I OUTLINEProfessor Burke Fall 2010

I. INTRODUCTIONThere are 3 ways that a criminal case can get to the Supreme Court:

1. Direct Appeal from State Court

2. Direct Appeal from Federal Court

3. Habeas Corpus appeal (prisoner v. warden/guards)

Incorporation

A constitutionally based decision that binds both State and Federal government, usually

through the 14th Amendment

14th Amendment- prevents the deprivation of life, liberty, and property without dueprocess of law

Selective Incorporation- judges look to see if a right is fundamental to the American system

of justice. If it is, its incorporated through the 14th Amendment and applies to the States

Hurtado v. California (p. #)

FACTS:California allowed criminal defendants to face trial without being indicted by a grand jury.

Defendant claimed that this violated his rights.

HOLDING: Californias practice did not violate the Constitution because the state gave the

defendant notice through another method (informations).

RULE:Defendants are not entitled to a Grand Jury indictment in State criminal proceedings.

Palko v. Connecticut (p. #)

FACTS: Connecticut state law allowed prosecutors to retry a defendant after the prosecutor won an

appeal saying that the defendant could be retried. Defendant claimed it was unconstitutional for

him to be retried again.

HOLDING: Connecticut State law did not violate the Constitution

REASONING: Cardozo says the Court should look to see if the right is implicit in the concept of

ordered liberty. The Court would have to agree that ordered liberty implies that a defendant

cannot be tried twice. The Federal system follows a Double Jeopardy rule, but the Court found that

the Connecticut state law was constitutional. The prosecutor could only retry the defendant after

they won an appeal proving that there was some justification for trying the defendant again.

Palko has been overturned. States can no longer retry a defendant. The main thing to take away

from Palko is Cardozos implicit in the concept of ordered liberty idea.

Duncan v. Louisiana (p. #)


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FACTS: Duncan was charged with simple battery, which is a misdemeanor under Louisiana state law

and punishable by a maximum of two years imprisonment and a fine. Duncans request for a jury

trial was denied because under Louisiana law, jury trials are only granted in cases which capital

punishment or hard labor imprisonment may be imposed. Duncan was convicted and appealed.

Court of Appeals found no error.

ISSUE:Does the 6th Amendment right to a jury trial apply to states through the incorporation ofthe 14th Amendment?

HOLDING:Yes. The Louisiana law prohibiting jury trials for non-felonies violated the 14th

Amendment.

RULE:The right to a trial by jury applies to all criminal defendants in state proceedings through the

14th Amendment.

JUSTICE WHITE (Majority)- argued that all states use jury trials. This demonstrates that states have

developed a reliance on jury trials and it therefore must be a right to have a trial by jury. Whites

view is todays dominant view.Only wants to incorporate those rights that are fundamental to the

system of justice, but thought that the 6th Amendment fell into that category.

JUSTICE HARLAN (Dissent)-looks at the process by which the defendant was convicted and looks

to see if it is fair and in accord with the concept of liberty. Said that a jury trial isnt implicit and that

Duncan wasnt entitled to a jury trial because he was still convictedthrough a fair process.

The Prominence of Incorporation

Only two rights have yet to be incorporated:

1. Right to a grand jury indictment before a criminal prosecution (Hurtado). California still does

not use a grand jury to indict defendants.

2. Bail Clause of the 8th Amendment- which states that defendants have a right to be

considered for bail. However, this may not be incorporated due to the fact that every state

already allows. The Supreme Court can only decide if this right is so fundamental that it

must apply to the states via incorporation if a state stops allowing bail and a defendantclaims it violated his rights.

Retroactivity

When the Supreme Court makes a decision it obviously binds future similar cases. But, should

the decision apply to cases that occurred before the date of the decision? The question of

retroactive application is one of competing interests and policies.

The Court always gives the benefit of the new rule to the litigant who establishes it, even

though that constitutes retroactive application. This is allowed for two reasons:

1. Its unfair to a defendant to not get the benefit of a rule that another defendant in asimilar case gets.

2. To assure that there is a concrete case or controversy before the Court.

II. THE FOURTH AMENDMENT


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Notions of Privacy

What makes an expectation of privacy reasonable?

o Empirical notions of privacy- what do most people think is the norm?

California v. Greenwood- society doesnt expect garbage to be private

o Normative notions of privacy- what should people expect regarding privacy? Thecaution about normative notions of privacy is that if people dont expect any privacy,

people wont give them any!

Applications of the Katz Principle

1. Subjective Manifestation- individuals must take affirmative steps to protect their privacy

interests; otherwise, government conduct may not constitute a search due to the individuals

failure to satisfy the subjective manifestation requirement of Katz.

1. Abandoned Property- police detention and investigation of abandoned property usually

does not trigger 4th Amendment protection. Many cases hold that the abandonment of

property is inconsistent with the retention of any subjective privacy interest. Whetherabandonment has occurred is a question of intent that may be inferred from acts, words,

and other objective facts.

a. United States v. Hoey- police entered an apartment where Hoey had lived and

obtained evidence that was used to convict her. The Court held that the police

activity did not constitute a search because Hoey had abandoned her apartment;

she had not paid rent for six weeks, held a moving sale, and had left the apartment

two days before the police entry and had not returned.

b. Smith v. Ohio- defendant was carrying a brown paper bag when he was approached

by two undercover police officers. When the officers identified themselves,

defendant threw the bag. Officers tried to grab it and defendant went after it. Court

held that defendant did not abandon the bag through his act of throwing the bagafter the officers inquiry.

c. Abandonment of property often found when a person denies ownership

i. United States v. McDonald- police found contraband in a bag in an overhead

bin and asked who it belonged to. Court held that defendant abandoned the

bag by not coming forward and claiming it.

2. Open Fields- are not in the protection of the 4th Amendment.

A. Oliver v. United States- Officers drove past Olivers house to a locked gate with a No

Trespassing sign. They walked around a footpath. They followed the path for several

hundred yards; the path led to a field of marijuana on the property, which was about one

mile from Olivers home. Court held that open fields are not within the scope ofthe 4thAmendment; individuals may not legitimately demand privacy for activities conducted

outdoors in fields, except in the area immediately surrounding the home. See pages 44-45

for additional statements.

B. United States v. Dunn- Court held that a barn located approximately 50 yards from the

fence surrounding a residence on almost 200 acres of property was outside the curtilage of

the home; therefore, police intrusion into that area did not constitute a search.

C. Curtilage should be determined based upon four factors:


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1. the proximity of the area claimed to be curtilage to the home

2. whether the area is included within an enclosure surrounding the home

3. the nature of the uses to which the area is put

4. the steps taken by the resident to protect the area from observation from people

passing by

D. United States v. Hatfield- even if property is within curtilage, a visual inspection of theproperty from outside the curtilage does not constitute a search

3. Access by Members of the Public- if an aspect of a persons life is subject to scrutiny by other

members of society, that person has no legitimate expectation in denying equivalent access to

police. There is no search if the police obtain information that members of the public could

obtain

A. United States v. White- audio surveillance. Authorities can use the testimony of those

associates who have turned to the police; one contemplating illegal activity must realize and

risk that his companions may be reporting to the police. Dissent said that the assumption

of risk principle shouldnt apply to the 4th Amendment.

B. United States v. Gonzalez- video surveillance. White analysis applies. Court held that

employees did not have an expectation of privacy in a public mailroom that society would

accept as reasonable; a search was not conducted when officers obtained consent of the

hospital to place a surveillance camera in the mailroom.

4. Financial Records

A. California Bankers Assn. v. Shultz- Bank Secretary Act required banks to maintain clients

identities and microfilm certain checks; had to record each deposit, withdrawal, currency

exchange, or payment for any amount over $10,000. ACLU argued that this made the bank

agents of government and that the recordkeeping provisions amounted to a search. The

Court held that depositors of necessity granted access to banks, so this precluded any

legitimate expectation of privacy that the government would not have the same access.

5. Pen RegistersA. Smith v. Maryland- police installed a device in the phone company offices that recorded the numbers

defendant called from his phone. The Court stated that a person has no legitimate expectation of

privacy in information that he voluntarily turns over to third parties and that when he used his

phone, petitioner voluntarily conveyed numerical information to the phone company. Dissents

argued that if the conversation in a phone booth was protected in Katz, the number dialed from the

home should be equally protected, and that a person who discloses information for a limited business

purpose shouldnt need to assume that the information will be released to other people for other

purposes.

6. Trash

A. California v. Greenwood- officers inspection of trash was not a search, and therefore waspermissible without a warrant or probable cause. Ruling was based on the theory that

Greenwood had no expectation of privacy in property that members of the public had access

to.

7. Public Access Area

A. According to the public access theory of the Katz test, most acts conductedin public are

not protected by the 4th Amendment.


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The 4th Amendment is intended to regulate government actors. A search or seizure

conducted by a private citizen is not a search of seizure within the meaning of the 4th

Amendment.

The 4th Amendment does apply if a private individual is acting, under the

circumstances, as an agent for the government. Government officials cannot avoid the

4th Amendment requirements by enlisting private individuals to do what governmentofficials cannot lawfully do!

Government Investigation Activity Subsequent to Private and Other Legal Searches

1. Walker v. United States- FBI agent viewed a video that they received from a person whomistakenly received the videos as a result of a wrong delivery. The recipient had opened

them, but didnt view them. The Court held that the unauthorized viewing of the films

content constituted an unreasonable invasion into the owners constitutionally protected

interest in privacy

2. Reopening Permitteda. United States v. Jacobsen- FedEx supervisor asked an office manager to examine apackage that had been torn open by a forklift. Found a weird tube inside; cut it

open. Contained several ziplock bags containing a powdery white substance and

contacted the DEA. DEA agents arrived and reopened the tube and the ziplock bags

and tested the substance. Court upheld the agents actions. FedEx employees

actions were not covered by the 4th Amendment and Walkerrequired an analysis of

the extent to which the government exceeded the bounds of the private search.

3. Controlled Deliveriesa. Illinois v. Andreas- government agents conducted a customs search of a wooden

crate that was being shipped to a US address. They found drugs hidden inside. They

resealed the crate and shipped it to the address, and searched the defendant after

he brought it into his home and left the home several minutes later. The simple actof resealing the container to enable police to make a controlled delivery does not

operate to revive or restore the lawfully invaded privacy rights. The reopening of

the crate was not a search.

B. WARRANTS

Searches conducted outside the judicial process, without prior approval by a judge or

magistrate are per se unreasonable under the 4th Amendment, subject only to a few

specifically established and well-delineated exceptions.- Katz v. United States

JOHNSON V. UNITED STATES (p. 80)

FACTS: Police entered Johnsons hotel room after receiving information that the room smelled ofopium. Police contacted the federal agents and they entered the room after Johnson gave them

permission. Police found opium and a smoking apparatus that was warm.

ISSUE: Did the officer violate the 4th Amendment by arresting petitioner and searching her living

quarters without a warrant?

HOLDING: Yes.


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REASONING: The warrant requirement protects citizens by requiring that inferences are drawn by a

neutral judge/magistrate instead of a police officer, who may be engaged in the often competitive

enterprise of ferreting out a crime. The officers in this case had no legitimate reason why they

could not obtain a warrant; the suspects did not attempt to flee, the search was not of a moveable

vehicle, and there was no indication that evidence was going to be destroyed.

RULE: When a personsright to privacy must be reasonably yielded to a right to search, thisdecision must be made by a judge or magistrate, NOT the police officer.

Hypo

A robbery was reported earlier in that day. The suspect was wearing a very ridiculous, uncommon

outfit. Police officer responds to a noise complaint in Jims apartment. Jim answers the door

wearing an outfit that matches the description of the robbery suspects outfit. He is also looking

nervously at his closet.

Two issues:

o How do we know well find evidencein the closet? It could be a coincidence that

someone else has a crazy outfit. Maybe its wrong to assume its the same person.o Should the officer obtain a warrant before the search? Maybe this situation ought to

be judged by a neutral magistrate. The magistrate can determine if theres probable

cause and will not be controlled by the passion that an officer may be dealing with in

this situation.

Demonstrating Probable Cause

Two possible probable cause tests: Aguilar/Spinelli or Illinois v. Gates. Some states still use

the Aguilar Spinelli test (NY). But the Supreme Court held that the two-pronged test would

no longer control the determination of probable cause when the police obtain information

from paid, professional, or anonymous informants. The Court rejected the two-prong test

and adopted a totality of the circumstances approach in Gates.

SPINELLI V. UNITED STATES (p. 90)

FACTS: Spinelli was convicted of traveling to St. Louis from Illinois with the intent of conducting

illegal gambling activities. Police obtained a warrant based on an affidavit stating that Spinelli

frequently traveled between the two cities, he had an apartment with two telephones, and that he

was known to the affiant and the Feds as a bookmaker and famvler and that the FBI had received

information from an information that Spinelli was accepting wagers.

ISSUE: Did the affidavit provide sufficient probable cause to allow a search warrant to be granted

by a magistrate?

HOLDING: No.REASONING: The affidavit fell short of the standard set forth in Aguilar and Draper.

Aguilar- the magistrate must be able to independently judge the validity of the informants

conclusion; the affiant-officers must support their claim that the information received from the

informant is credible.

Draper- the informant had told officers that Draper would arrive at a train station carrying heroin

and would be wearing specific clothes; specific assertions were made, and that shows the

credibility of the informant. Informant had predictive information. In Spinelli, the affidavit did not


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state how the informants statements were supported. The facts listed in the affidavit itself do not

by themselves indicate any criminal activity.

RULE: Probable cause is to be determined by a neutral and detached magistrate who must analyze

the reliability and basis of knowledge of the informant. If both prongs are satisfied, there is

probable cause. If not, the tip can be considered by the magistrate only if there is considerable

corroboration.

The Aguilar/Spinelli Two- Prong Test (NY uses this!)

1. Reliability/veracity- can we believe the informant? Is the informant himself credible?

can be established by information that is believable in the circumstances

informants previous good track record of providing credible information

motivation for accuracy (theyre getting a plea bargain, so that will make them more

likely to be accurate)

is the information generally believable?

2. Basis of knowledge- does the informant know what hes talking about? (Credible

information) some people may truly believe something, but that doesnt mean its right! Ex: Mother

Theresa may think that everyone who wears baggy jeans is in a gang; the fact that she

honestly believes this doesnt mean that she has a good basis of knowledge

THE RULE:If both prongs are satisfied, the information can be used to establish probable cause. If

not the tip can be considered by a neutral magistrate only if there is sufficient corroboration.

ILLINOIS V. GATES (p. 97)

FACTS:Aconfidential informant wrote a letter to the police with information that a couple in theneighborhood was engaging in the sale of marijuana. The informant provided specific information as to how

the couple obtained the marijuana, and the informant stated an estimated date that the couple would betraveling to obtain drugs again. Mader investigated and found some information that was consistent with

what the informant said. Mader was in contact with the DEA, and signed an affidavit that he submitted to a

judge. The judge issued the warrant.

ISSUE: Was the anonymous letter along with the officers affidavit sufficient to establish probable

cause?

HOLDING: Yes.

REASONING:Even standing alone, the facts obtained through the investigation of Mader at least suggested

that the Gates were engaged in illegal drug activity. Additionally, the letter corroborated Maders

investigation.

RULE:In determining whether a warrant was issued based on sufficient probable cause, the

magistrate should analyze the information using a totality of the circumstances analysis; the task

of the magistrate is simply to make a common sense decision whether given all of the information

in front of him, there is a fair probability that evidence of a crime will be found.

Aguilar/Spinelli and Gates


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local police departments radio and was listening to it. He was also recording the conversation. He was

arrested and charged with recording in violation of an Act, even though a recent Court of Appeals decision

said it was lawful for him to record a conversation with police officers. Defendant argued that his arrest was

unlawful because the offense he was arrested for was not closely related to the offense that the officer

had probable cause for.

There was objective probable cause, but the police officer arrested defendant on a crimewhich he had subjective probable cause for that was not closely related to the crime that

had objective probable cause.

ISSUE: Was the arrest lawful when police had probable cause for an arrest for one crime and the

actual arrest was made for another crime?

HOLDING: Yes.

REASONING:A police officers subjective reason for making an arrest need not be the criminal

offense as to which the known facts provide probable cause. The closely related rule is

inconsistent with this precedent. It is improper for a rule to turn on the motivation of a police

officer.

RULE: An arrest is lawful if the police officer had probable cause for one crime but then arrested

the defendant for another crime.

Arrested for X, but no probable cause for X. How is this lawful?

The police had probable cause for something else, so even though the arrest was for

something else, its still lawful.

Even if a police officer doesnt realize they have probable cause, the arrest is lawful as long

as there is probable cause based on an objective standard.

Probable Cause, Specificity, and Reasonableness

What can be seized?

o Fruits of the crime (the stolen items, drugs, etc.)o instrumentalities

o contraband

o evidence

Warden v. Hayden (p. 129)

FACTS: Maryland Court convicted the defendant of armed robbery. Items of his clothing matching

the description of the robber were seized and admitted into evidence. Court of Appeals reversed

his conviction, stating that the clothing was improperly seized because the items had only

evidentiary value and only fruits of the crime can be properly seized.

ISSUE: Was the Court of Appeals correct in holding that the seizure and introduction into evidence

of the clothing violated the 4th Amendment because the clothing was only mere evidence?

HOLDING: No. The Court of Appeals was incorrect.

REASONING: The 4th Amendment does not make a distinction between mere evidence and the

fruits of the crime. The 4th Amendment only wants to protect privacy again illegal searches and

seizures; privacy is not disturbed any more by a search/seizure for mere evidence than it is by a

search/seizure for fruits of the crime.

RULE: Items that constitute mere evidence of a crime can be seized and admitted into evidence.


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Andresen v. Maryland (p. 141)

FACTS: A bi-county investigation led police to an investigation of real estate settlement activities and

Andresen was suspected of fraud with regard to the sale and conveyance of lot 13T. A warrant was obtainedfor specified documents pertaining to the sale and conveyance of lot 13T. The final clause was vague and

said that search and seizure of other fruits, and instrumentalities and evidence of crime at this time

unknown was permitted. Petitioner contends that his 4th Amend right was violated because the warrants

descriptive terms were so broad that they constituted a general warrant.

ISSUE: Was the warrant specific enough to not be considered a general warrant?

HOLDING: Yes.

REASONING: Andresen misinterpreted the warrant. The Court found that the phrase other fruits .

. unknown meant evidence to the crime at hand yet unknown, not to other crimes unknown. That

would be too broad. The Court noted that the search of papers and audio tapes are tricky because

papers need to be read in order to determine if they are the thing sought, and tapes need to be

listened to. The Court cautioned officers to conduct searches in a manner that minimizesunwarranted intrusions upon privacy.

RULE: Warrants that seek documents must be specific so they dont infringe upon 4th Amendment

rights to reasonable searches.

Zurcher v. Stanford Daily

RULE: The critical element is reasonable cause to believe that the specific things to be searched

for an seized are located on the property to which entry is sought.

If not, police would be free to search the homes of anyone associated with the suspect!

The Place to be SearchedA. Third party searches are permitted (Zurcher v. Stanford Daily)

B. The place to be searched must be described with particularity (usually an address or a

specific description)

C. Maryland v. Garrison- the Court upheld a warrant authorizing the search of the third floor

apartment even though there ended up being two apartments on the third floor. A police

officer had obtained information that seemed to indicate that there was only one

apartment on the third floor

D. The Wrong Address

a. Lyons v. Robinson- warrant authorized the search of 325 Adkinson street; Robinsons

residence was actually located at 325 Short Street, on the corner of Short and

Adkinson. Court said the warrant was sufficiently particular because it made it

unlikely under the circumstances that another premises might be mistakenly

searched.

Description of the Persons or things to be Seized

May depend on the nature of the evidence. Certain things need to be described very

carefully.


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What is needed it sufficient particularity to guide the execution of the warrant so police

know what to look for.

Executing the Warrant

Statutes throughout the country require that officers require that officers executing a

warrant knock and announce their presence before attempting to enter a dwelling. 18 U.S.C.A 3109- The officer may break open any outer or inner door or window of a

house, or any part of a house, or anything therein, to execute a search warrant if, after

notice of his authority and purpose, he is refused admittance when necessary to liberate

himself or a person aiding him in the execution of the warrant.

o Can break down doors if refused admittance!

The general rule: An officer can break open premises if he has announced his authority and

purpose and is refused entry. You cant come in is grounds for entering. Refusal can also

be implied through a persons failure to respond within a reasonable amount of time.

Generally, citizens are allowed more time to answer at night.

Wilson v. Arkansas (p. 150)

RULE:In order to be reasonable, the execution of a search warrant must be preceded by a knock

and announce.

REASONING:There are three reasons for this rule

1. Provides a little opportunity to protect decency (clothing, showers, etc.)

2. Protects against the potential violence in a chaotic situation (There have been

situations where police break into the wrong house and the homeowner shoots the

police officer because they think theyre being robbed)

3. Prevents needless destruction of property. We dont want doors/windows being

broken if they dont need to be!

No-Knock Entry: Exigency Exception to the Knock and Announce Requirement

Richards v. Wisconsin (p. 152)

FACTS: Police obtained a warrant to search Richards hotel room for drugs and paraphernalia.

Police requested a no-knock warrant, but the magistrate denied this request and issued a regular

search warrant. The police went to the hotel room and knocked on the door announcing himself as

a maintenance man. Richards cracked open the door, leaving the chain hooked. He shut the door

when he saw an officer in uniform. The officers then started knocking the door down while

shouting that they were police officers. When they broke in, they saw Richards trying to escape out

of the window. They found large amounts of cash and drugs.

ISSUES: Can a police officer break down a door if there are exigent circumstances?HOLDING: Yes.

RULE: In order to justify a no-knock entry, the police must have a reasonable suspicion that

knocking and announcing their presence, under the particular circumstances, would be dangerous

or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing

the destruction of evidence.

REASONING:There are three reasons for the exigency exception to the knock and announce

requirement:


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1. to prevent the destruction of evidence. Drug dealers usually leave drugs

close to sinks/bathrooms so they can destroy evidence quickly.

2. to prevent the suspect from escaping

3. safety

Tricking the HomeownerCourts have held that if the officer can trick the homeowner into opening the door, there is no

violation of the knock and announce requirement because there is no breaking.

United States v. Alejandro- held that officers did not violate the knock and announce

requirement by posing as utility men and entering when defendant opened the door

because there was no breaking.

No-Knock Warrants

If officers have reason to believe that exigent circumstances will exist, they can tell the magistrate

and can get a warrant permitting them to enter the dwelling without knocking and announcing.

Ex: Can demonstrate that the defendant is known to be dangerous, known to have guns,etc.

Forced Entry Rule

Forced entry after a knock and announce is permitted in the following two situations:

1. Exigent Circumstances

2. Refusal of Entry (actual of inferred)

a. United States v. Banks- defendant was in the shower when officers knocked and

announced. They forced entry after 15-20 seconds of not hearing a response. Courts

look at the officers perspective in determining whether the forced entry was

reasonable. In 15-20 seconds, the defendant could be in the shower, or he could be

escaping, destroying evidence, hurting someone, etc.

What happens when officers violate the knock and announce requirement?

The evidence is not excluded!

the purpose of the knock and announce rule is to protect the reasonableness of the search,

not to allow defendants a chance to hide things or escape. Therefore, evidence is not

excluded if officers violate the rule.

Anticipatory Warrants

A judge/magistrate can issue a warrant that is only valid when a stated event occurs.

The argument against anticipatory warrants is that the police decide when the event occurs,not the magistrate.

Sneak and Peak Warrants

Allow police officers to search and seize without telling the defendant that they were there and

without providing them with a copy of the warrant and a list of the evidence they obtained.

Congress said that this was permissible.


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Searches usually occur at the end of an investigation when the defendant is about to be

arrested.

Post 9/11, police wanted to search possible terrorists earlier on to catch criminal activity

sooner.

Problem with sneak and peak warrants- if the home is searched without knowledge, the

defendant doesnt have the opportunity to challenge whether the magistrate was right inissuing the warrant. Theres no check on the NDMs decision.

Particularity of the Warrant- Scope

Size matters! Police can look anywhere that the items sought may be found. If its large

enough to contain the evidence, it can be searched.

o If theyre looking for a rifle, they cant search a small container.

o However, if the warrant stated that they were searching for a riffle and

contraband/instrumentalities, they can search a small container because bullets may

be found there.

o Warrants should be very carefully drafted to include these things!o Including blood, hair, and fibers basically allows a search of the whole premises

because those can be found anywhere!

Destruction of Evidence and Excessiveness

Buckley v. Beaulieu- officers acted unreasonably in tearing up the walls in defendants home to

search for liquor. They could have searched for liquor concealed in the walls by using some

slender probe with comparatively little injury.

United States v. Weinbender- officers searched wall of defendants home to search for clothes that

would have connected defendant to a crime. The Court held that this was reasonable because the

officers had received information that the defendant used weird hiding places, the officers

observed a small piece of drywall that was unfinished and it was a small piece covering a storage

space.

Look at the facts of the case to see if its excessive!

Use of Distraction and Intimidation Devices

United States v. Myers- Court upheld officers use of a flash bang device. Showed concern for the

use of the device because children were sleeping in the home, but held that it was reasonable due

to Myers known criminal activity.

United States v. Jones- use of a flash-bang device does not result in the exclusion of the evidence

obtained.

Unnecessarily Intrusive Searches

The manner in which a warrant is executed is always subject to judicial review to ensure that it

does not traverse the general 4th Amendment proscription against unreasonableness.

Hummel-Jones v. Stope- officers questioned a woman in a shelter while she was nursing her

newborn baby. Court held that the search was so intrusive as to be unreasonable.

Neutral and Detached Magistrates


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Coolidge v. New Hampshire- Supreme Court stressed the importance of neutral and

detached magistrates. Stated that the magistrate must not be associated with the police

department.

Rubber stamps- a magistrate cannot be neutral and detached if he has a reputation for

issuing pretty much every warrant that he is faced with.

Magistrates do not need any legal training.

C. WARRANTLESS SEIZURES, ARRESTS, AND SEARCHES

The Court has held that a search or seizure is presumptively unreasonable in the absence of

warrant based upon probable cause. However, the Court has found that the presumption of

unreasonableness can be overcome in a variety of circumstances.

What quantity of evidence must police show in order to arrest a suspect?

o In order to arrest a person, a police officer must always have probable cause to

believe that a crime has been committed and that the suspect committed the crime.

This is always needed for an arrest.

o What changes is the warrant requirement. Generally, a warrant is needed for anarrest to be reasonable. There are several exceptions.

The issue of whether a warrant was needed arises when a defendant tries to suppress

evidence by stating that his arrest was unreasonable.

If police want defendant to be arrested anywhere other than his home or the public, they

also need to obtain a search warrant!What do you think would apply if the defendant

was at work? Would a search/arrest warrant be needed?

Arrests in Public

UNITED STATES V. WATSON (p. 171)

FACTS: An informant, Khoury, gave a tip to a postal inspector that Watson was in possession of a stolencredit card and had asked Khoury to use the card to their advantage. Khoury had provided the inspector

with reliable information on 10 other occasions. Khoury arranged to meet Watson at a restaurant, and

was to signal to the inspector if Watson had any stolen credit cards with him. Officers searched Watson

after receiving the signal and found no cards on him; they did find two stolen credit cards hidden in his

car. Watson was arrested. At trial, Watson moved to suppress the cards, claiming that his arrest was

illegal for lack of a warrant. Trial Court said it was proper to arrest him without a warrant and convicted

him; Court of Appeals said it was an error to arrest Watson without a warrant and reversed the

conviction.

ISSUE: Does a public warrantless arrest violate the 4th Amendment?

HOLDING: No.

REASONING: There is nothing in the courts prior cases indicating that a warrant is required to make an

arrest for a felony under the 4th Amendment. The usual rule is that a police officer may arrest without

a warrant one believed by the officer upon reasonable cause to have been guilty of a felony. Carroll v.

United States, 267 U.S. 132, 156 (1925). Congress has plainly decided against conditioning warrantless

arrest power on proof of exigent circumstances.

RULE: A warrantless arrest made in a public place does not violate the 4th Amendment.

Hypo


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lights on and music coming from inside, so they assumed he was home. When they entered, they

discovered that he wasnt home but a gun was in plain view.

ISSUE: Is an arrest warrant required for an arrest effectuated in the defendants home?

HOLDING: Yes.

REASONING: The home is different from a public place. People have a greater expectation of

privacy in their home, and the law should recognize that the home is a sanctuary.RULE: An arrest warrant is required if police wish to arrest a defendant in his home.

Hypo

Officers wish to arrest a homeless person. At the time of the arrest, he is in the area that he calls

home. Is a warrant needed?

Some Courts have held that the arrest wont violate Payton if there is no warrant because it

is not a home.

Other Courts have been more sympathetic to the privacy interests of homeless persons and

have held that an arrest warrant is needed to arrest a homeless person whenever they are

in the area that they call home, as long as he is not trespassing.

Hypo

Police wish to arrest a person who is staying in a hotel. Is an arrest warrant needed to arrest the

defendant in their hotel room?

Yes. The Payton rule applies to hotels/motels during the rental period. If the person stays in

the hotel past the rental period and is not paying for it, no warrant is needed.

Arrests in the Home of a Third Party

STEAGALD v. UNITED STATES (p. 189)

FACTS: Police obtained an arrest warrant for Ricky Lyons. They received information that Lyons

would be staying at Steagalds house for the next 24 hours. They went to Steagaldshome andsearched for Lyons and didnt find him, but found drugs belonging to Steagald. Steagald alleged

that the drugs should be suppressed because the officers did not have a search warrant to search

his home.

ISSUE: If the police have an arrest warrant for a person, and they believe that the person is staying

at the home of a third person, is a search warrant needed to search the home of the third person?

HOLDING: Yes.

REASONING: A magistrate should be the one to determine that there is probable cause to believe

the suspect is at the third partys home.

RULE: A search warrant must be obtained to look for a suspect in the home of a third party, absent

consent or exigent circumstances. Police need to demonstrate a fair probability that the arrestee isat the third partys home.

NOTE: If the police had a search warrant for Steagalds home, the evidence implicating Steagald

doesnt need to be excluded because they were there lawfully.

The Question of Standing


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In Steagald, the court suppressed the evidence seized against Steagald because his 4th Amendment

rights were violated as a result of the search. Would Lyons have standing to complain about the

search?

No. The Courts are concerned with the privacy interests of the third-party homeowner, not

of the visiting arrestee.

The Rights of an Overnight Guests

Minnesota v. Olson- an arrest warrant is required under Payton to arrest a person who was an

overnight guest in the home of a third party. Justice White stated that a persons status as an

overnight guest is enough to show a reasonable expectation of privacy in that home.

Would a search warrant be needed too?

Temporary VisitorsMinnesota v. Carter- Carter and Johns objected to a warrantless search of an apartment. They were

there for a few hours for the purpose of cutting up cocaine. The Court stated that they had no

reasonable expectation of privacy in the apartment and could not object to the warrantless search.

This case is also discussed in the materials on standing.

Exceptions to the Warrant Requirement in a Nutshell

1. No arrest warrant needed for an arrest made in a public place. United States v. Watsona. Hypo: Police officer has probable cause to believe that suspect has committed a robbery. He

can approach the suspect on Hempstead Turnpike and arrest him without a warrant.

b. This rule comes from the common law. It is followed by many states and federal law.

c. Police officer may still want to obtain an arrest warrant to make an arrest in public.i. can ensure that future evidence wont be lost. Ex: If it is later determined that there

was no probable cause for the arrest, the evidence will be lost. If an arrest warrant

is issued by a magistrate, the defendant cant raise it as an issue.

ii. Sometimes defendants think that an arrest isnt a big deal; having a warrant makes

it stick more

d. Collective knowledge- police officers can rely on information from police officers in other

jurisdictions to establish probable cause. Whirley v. Warden

e. Watson was silent on what happens when a misdemeanor happens outside of the officers

view. It doesnt suggest that the 4th Amendment would be violated if the suspect was

arrested in public based on information not directly witnessed by the arresting

rrest warrant is needed if an arrest will be made in the suspects home, even if there is probable cause to arrest.

on v. New York

a. The Court drew a line between a public place and a home. We want to protect the

sacred notion of a home.

b. Its the showing of probable cause that makes a person arrestable. Once there is

probable cause, a person can be arrested anywhere; the seizure is lawful. It

becomes a matter of how they were seized.


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c. If there is probable cause to believe someone committed a crime, they are

seizable, just like the fruits of the crime, instrumentalities, etc. Its just a question

of where you go to get them.

d. There are two requirements of the Payton rule:

i. An arrest warrant

ii. Reason to believe the person is home

e. No search warrant was needed to search for Payton in his home because there was

reasonable cause to believe that they were home. They have to show that they

think hes home, but not to the magistrate. They just have to show a reason to

believe.

f. If defendant was home, officer needs an arrest warrant, not a search warrant to

search for him (he only needs reason to believe that hes there.

g. An arrest warrant only allows police to search the suspects home to find the

defendant; it does not permit the police to search for the defendant anywhere he

might be found (friends and families houses, etc.) Police cant barge in to a suspects

friends home with an arrest warrant for the suspect.

e need probable cause to arrest AND a SEARCH WARRANT if they arrest defendant in a third partys home.

gald v. United Statesa. Need to show a fair probability that defendant is at the third partys home.

b. The purpose is to protect the third partys privacy in his own home, not the

defendants!

NOTE: There is no constitutional requirement for an arrest warrant; officers do not need to obtain an arrest

warrant even if they have sufficient notice.

Stop and Frisks

TERRY V. OHIO (p. 193)

FACTS: Officer McFadden spotted two men, Terry and Chilton, standing on a street corner talking.

One of them walked down the street and stopped in front of a store and looked into the window.

He came back and spoke with the other. Then the other did the same thing. They repeated thispattern of one of them walking to the store and then returning to talk to the other several times

each. At one point they starting speaking to another man, Katz. Officer McFadden approached

them and identified himself, and began to pat the outside of Terrys coat. After feeling a gun, he

pulled the three men inside. He patted the outside of Terry and Chiltons coats before searching

the inside and finding guns; Katz was not carrying a concealed weapon, so McFadden did not feel

the inside of his coat.

ISSUES: 1.Did a search and a seizure occur in this case?

2. Is it unreasonable for a police officer to seize a person and subject him to a limited

search for weapons when there is no probable cause for arrest?

HOLDING: 1.Yes. A search and a seizure occurred. The Court didnt follow the suggestion that theterms stop and frisk are words describing police conduct that falls out of the 4th

Amendment. It must be recognized that whenever a police officer accosts an individual

and restrains his freedom to walk away, he has seized that person.

2.It is not unreasonable

RULE: When a police officer has reasonable suspicion to believe that a suspect is dangerous, he

may conduct a limited search (frisk) of the person in order to discover any weapons, even if there


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is no probable cause for arrest at the time. Its a reasonable suspicion requirement, less than

probable cause! Reasonableness is determined based on an OBJECTIVE standard.

REMEMBER: A terry stop and frisk only permits officers to look for weapons; an officer cannot do

a stop and frisk if he is looking for drugs!

Adams v. Williams (p. 202)FACTS:Officer was approached by an informant who told him that the defendant was carrying a

gun at his waist and narcotics; defendant only lowered the window when the officer told him to

step out of the car. Officer felt defendants waist and felt a gun; defendant was arrested for

unlawful possession of a fun and for narcotics found during a subsequent search of Williams and

the car.

HOLDING:A tip from a reliable informant may give a police officer reasonable suspicion to frisk the

suspect. This case expanded the Terry tule to allow that an officers suspicion does not need to be

based on his own personal observation.

Bright Line Rule Under Terry

Pennsylvania v. Mimms (p. 204)-police stopped Mimms for driving with an expired license. Once he

was out of the car, they saw a bulge under his jacket and frisked him. The issue was whether the

officers were justified in ordering Mimms out of the car.

HOLDING:Officers in the course of a legal stop of a car have an automatic right under Terry to

order the driver out of the vehicle. Traffic violations still pose a risk to the officer.

Maryland v. Wilson(p. 207)- Officer pulled over a car for speeding and ordered the driver and the

passengers out. Bag of cocaine fell from one of the passengers as he stepped out of the car.

Passenger claims that the drugs should be suppressed because the officer didnt have a right to

order him out of the car.

HOLDING:The automatic rule authorizing officers to order the driver out of the car after a legalstop also applies to passengers. Officers have an automatic right to order passengers out of a car.

Even though the stop of the car didnt have anything to do with the passengers conduct, the

intrusion is minimal.

Protective Frisks of Passengers

Arizona v. Johnson (p. 208)- Officers who conduct routine traffic stops may perform a patdown of a

driver and any passengers upon reasonable suspicion that they may be armed and dangerous.

Unlike ordering them out of the car, this isnt an automatic right; the officer needs reasonable

suspicion that the person is armed and dangerous before he can pat them down!

New York v. Class(p. 208)- an officer is allowed to reach into the defendants car to move an

obstruction that is blocking the VIN number. Police officers did not have to ask Class to re-enter his

car to move the papers.

Detention of Occupants of a Residence During Legal Law Enforcement Activity


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Michigan v. Summers(p. 209)- It is reasonable for police officers to require the occupant of the

premises to remain present while a search of their premises is being executed. they can be ordered

to stay even if they were leaving the premises at the time the officers arrived.

Reasoning: This prevents the potential destruction of evidence. An occupant may try to

destroy some evidence in the process if leaving the home. Also, if occupants arent required

to stay, they may try to escape and hide.Muehler v. Mena(p. 209)- Officers can handcuff and detain a person during the warranted search

of their home. It was also permissible for officers to question the detainee on suspected gang

involvement during the search. The Court has held several times that mere questioning does not

constitute a search. Since the detention was not prolonged by the questioning, there was no

additional seizure within the meaning of the 4th Amendment.

When Does a Seizure Occur: The Line Between Stop and Encounter

United States v. Mendenhall (p. 212)

FACTS: DEA agents observed Mendenhall as she arrived on a slight suspected her of being a drugcourier. They walked with her on the public concourse and identified themselves as DEA agents.

They asked for her license and plane ticket; the name on the plane tickets was not hers. They asked

her to follow them for more questioning and she complied. During questioning, she was searched

and drugs were found. Court held the Mendenhall was not seized.

RULE: A person has been seized within the meaning of the 4th Amendment only if, in view of all of

the circumstances surrounding the incident, a reasonable person would have believed that he was

not free to leave.

Florida v. Royer (p. 213)

FACTS: Officers spotted Royer at an airport and thought he looked like a possible drug courier.

Detectives approached him and identified themselves as being with the sheriffs office and asked ifRoyer had a moment to speak with them; Royer said yes. Royer produced his airline ticket and

drivers license upon request without speaking. The names were different. The officers held on to

them and told Royer that they were narcotics detectives. Detectives asked Royer to accompany

them to a room for questioning; he complied but didnt answer. One detective retrieved the

suitcases. Royer provided a key and the officer proceeded to open it without again asking if it was

ok. Drugs were found. The second suitcase had a lock and Royer said he didnt know the

combination. When the detectives asked if it was ok if they bust it open, Royer said go ahead.

They found more drugs.

HOLDING:Royer was seized when the officers took his plane ticket and license and walked away.

Whether a person has been seized depends upon the circumstances; the facts of this case aredifferent from Mendenhall because the officers here took Royers identification; he couldnt go

anywhere.

Factory Sweeps

INS v. Delgado(p. 216)- INS officers did not seize workers when they conducted factory surveys in

search of illegal aliens. During the sweep, employees continued to work and were free to move

around the factory.


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Street Encounters

United States v. Cardoza(p. 217)- officers approached Cardoza in a car facing the wrong way on a

one way street and asked h im what he was doing out at that time of night. Cardoza was talking

with his hands and gesturing and revealed a bullet. Officers then patted him down and found a gun

on him.HOLDING:Cardoza was not seized within the meaning of the 4th Amendment. The test for Terry

stop and frisk is not whether a reasonable person would feel free to leave, but whether the police

officer was acting coercively.

Bus Sweeps

UNITED STATES V. DRAYTON (p. 220)

FACTS:Drayton and Brown were on a bus when 3 officers boarded at a gas stop. Two officers went

down the isle asking people to identify their bags and one stayed at the bus entrance.Officers did

not tell any of the people that they did not have to comply with questioning. When they reached

defendants, they asked to check their bags and defendants said yes, then the officer asked to check

their person, which both defendants said yes. One of the defendants was already under arrest at

the time the second defendant was searched. Both defendants were found to be carrying cocaine.

ISSUE:Must an officer inform people that he is about to question that they do not need to comply

with questioning?

HOLDING: No.

REASONING:The Court looked at the circumstances surrounding the questioning and found that

the officers gave the passengers no reason to believe that they were required to answer the

officers questions. The officer at the front was there to ensure that the other officers were safe.Officer Lang identified himself and made sure not to block the aisle for the defendants. He spoke

with them in an average volume voice and didnt even use an authoritative tone.

RULE:An officer does not need to tell a person that they do not have to comply with questioning.

State of Mind Required for a Stop

Brower v. County of Inyo (p. 227)- seizure only occurs when there is a governmental termination of

freedom of movement through means intentionally applied.

Medeiros v. OConnor(p. 227)- Gunman took over a schoolbus and took a student as hostage.

Police officer fired and hit the student on accident. Held that the student was not seized; the intentto seize needs to be specific, not general.

The Suspect Who Does not Submit

California v. Hodari D.(p. 228)- Officers approached a group of youths, who fled when the saw the

officers. Hodari threw a small rock as an officer was chasing him. Hodari claimed that the pursuit

itself was a seizure.


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Held: Court held that the pursuit was not a seizure. The public should be encouraged to comply

with police orders, and allowing people who run from police to say they are seized affords them

too much protection.

Reasonable Suspicion

Two-step analysis to determine if there was reasonable suspicion:1. Investigate the source of information upon which the reasonable suspicion is based

2. Evaluate whether that information is sufficiently suspicion to justify a stop

A. The Source of Information

1. Anonymous Tips

Alabama v. White(p. 232)- police received an anonymous tip that White would be leaving a

particular apartment in a station wagon with a right taillight broken and that she would drive to a

nearby motel carrying a briefcase of cocaine. Officers observed and saw that everything the

informant said was right, except for the fact that White wasnt carrying a suitcase. The case was

already in the car; she consented to a search of it when she was stopped.

Held: There was reasonable suspicion because their was predictive information beyond leaving

her house in a station wagon. Once she started driving towards the motel, there was reasonable

suspicion even though this fact on its own is innocent.

Florida v. J.L.(p. 234)- anonymous information called the police station and said that there was a

young black male in a plaid shirt at a bus station carrying a weapon. Officers went to the scene and

saw J.L. in a plaid shirt. They did not see a firearm, and J.L. did not act suspiciously or make any

threatening movements. Officers approached him and told him to put his hands up, frisked him and

found a gun. J.L. claims that the officers did not have reasonable suspicion for the stop.

Held: There was no reasonable suspicion for the stop. There was no predictive activity.

Rule: An anonymous tip lacking indicia of reliability does not justify a stop and frisk whenever andhowever it alleges he illegal possession of a firearm.

Note: The Court implied that if the anonymous tip was about a major threat to public safety. (If the

AI said that a guy in a plaid shirt was walking into a building with a bomb). Sitting with a gun

doesnt necessarily mean that the person is going to use it, and doesnt pose that high of a risk.

Drunk driving- if an officer receives a tip that a car is driving erratically, and arrives at the

scene and the car is already stopped, he still ahs reasonable suspicion to stop him for drunk

driving. Erratic and possibly drunk driving poses an imminent threat to public safety.

Domestic violence- anonymous informants tips about domestic violence and related

emergencies have been held to be sufficient for a stop even without sufficient

corroboration through predictive activity

UNITED STATES V. ARVIZU (p. 243)

FACTS:Arvizu was stopped by a border patrol agent. His minivan drove past an officer and slowed

down. Officer thought it was weird that Arvizu drove right by without glancing at him, since most

people who passed border agents waved. He noticed that the childrens knees seemed to be very

high up, as if their feet were resting on something.


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ISSUE:Was there sufficient reasonable suspicion to believe that Arvizu was engaged in illegal

activity to justify the stop of the minivan?

HOLDING:Yes.

RULE:Reasonable suspicion can be found through innocent facts that are combined together.

Relevance of RaceCity of St. Paul v. Uber(p. 254)- officer observed Uberscar at 2:15 am, and again half an hour later.

Discovered that the car was registered to a city 20 miles from where they were. Stopped him

because they were in an area known for prostitution.

Held: Simply being in a public area known for prostitution does not give reasonable suspicion to

stop a person in that area. Additionally, the fact that it was a predominately white area and the

defendant was black was not sufficient to raise suspicion.

Use of Profiles

Police use profiles to determine whether the conduct of citizens is sufficiently suspicious to justify a

stop.

Drug couriers- police frequently look for these factors in looking to stop a person

Arrival or departure from an identified source city

Carrying little or no luggage

Unusual itinerary, such as a rapid turnaround time after a very lengthy airplane tripe

Use of an alias

Carrying an usually large amount of currency

Purchasing airline tickets with a large amount of small demonization currency

Unusual nervousness beyond that of ordinary passengers

Courts have held that the presence of any one of these factors is not dispositive; but if several of

these factors are present, it is likely to give an officer reasonable suspicion for a stop.

Reasonable Suspicion and Flight from the Police

Illinois v. Wardlow (p. 259)- if a person runs upon seeing the police, this is enough to justify a stop

of that person. The Court held that an individuals presence in a high crime area, on its own, is not

sufficient for a stop, but unprovoked flight provides reasonable suspicion. This is consistent with

Florida v. Royer, which held that when an officer without reasonable suspicion or probable cause,

approached a person, the person has the right to ignore the police and go about his business.

B. Limited Searches for Police Protection Under the Terry Doctrine

Minnesota v. Dickerson- the Court reaffirmed that Terry frisks are justified only for protective

purposes and that a search for evidence is not permitted under Terry.

Officer suspected Dickerson of drug activity. PO patted him down and felt a small, hard

object in Dickersons pocket. He determined that it wasnt a weapon, but still continued to

feel the object.

The PO exceeded the scope of a Terry frisk


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Once it is determined that an object is not a weapon, the officer must STOP probing the

object.

o The whole purpose of a Terry frisk is to protect the officer from weapons that the

person may have. Once its determined that theres no weapon, the officers

justification for the frisk stops; he therefore must stop probing.

Officer is conducting a frisk and feels a small container in the defendants pocket. He knows that

some criminals hide razor blades in Altoid cans. He opens the box and finds cocaine. Was Terry

violated?

No! It doesnt matter what the frisk turned up. If the officers theory was reasonable, he

was permitted to open it out of a concern for safety.

Suspicion Required to Support the Right to Frisk

NY Court of Appeals has held that:

A frisk requires reliable knowledge of facts providing reasonable basis for suspecting that

the individual to be subjected to that intrusion is armed and may be dangerous. Cant just frisk for no reason!

Protective Searches Beyond the Suspects Person

Michigan v. Long- defendant was stopped by officers saw him driving erratically before he swerved

into a ditch. After he got out of his car, he appeared to be under the influence and didnt answer

any questions. The defendant started walking back towards his car. Officers shined a light and saw

a hunting knife. The officers conducted a protective search of the car. The Court held that this

search was permissible.

The officers were only permitted to search the area of the car that could have been reached

by the defendant.

NY TwistNew York doesnt follow Michigan v. Long!

Protective Searches of Persons other than the suspect

Ybarra v. Illinois- Court refused to uphold a frisk of a patron in a bar who happened to be present

when the police arrived to conduct a search of the bar pursuant to a valid search warrant. A

persons mere presence enough isnt sufficient to provide a reasonable basis that the patron poses

a risk to officers.

The line between a stop and an arrest

1. Forced movement of the suspect to a custodial area- some forced movements of a suspect

might be necessary during a Terry stop, but probable cause is required if the officer forcesthe suspect to move

2. Forced movement for identification purposes

a. Florida v. Royer- Court found an arrest occurred when Royer was forcibly moved to a

custodial atmosphere, purposes of extracting consent to search

b. An officer can force a suspect to move for safety and security purposes without

turning the situation into an arrest


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3. Investigative techniques that are permissible within the confines of a Terry stop- some

preliminary investigation is permissible within the confines of a Terry stop. Probable cause

is required if the officers are using the stop for some purpose beyond that which justified

the stop

4. Investigation of matters other than the reasonable suspicion that supported the stop- many

courts have held that a Terry stop must end when the reason for the stop has come to anend

5. Time limits- courts have refused to set an actual time limit for when a Terry stop becomes

an arrest, but generally, the longer the stop lasts the greater the risk

6. Use of force- the use of handcuffs do not necessarily mean that the suspect is under arrest.

Because safety may require the police to freeze temporarily a dangerous situation, the

display of a firearm and the use of handcuffs may be a part of a reasonable Terry stop.

Hiibel v. Nevada (p. 272)

FACTS:Hiibel was stopped for suspicion of being involved in a domestic assault. He refused to

provide officers with identification. He was arrested for failing to give his ID.

ISSUE:Can a person who is stopped with reasonable suspicion be criminalized for his failure to

provide identification?

HOLDING:Yes.

RULE:An officer has a right to demand identification as a part of an investigation during a Terry

stop. They can ask for identification.

Detention of Property under Terry

Terry concerns seizures of the person, but its principles have been applied to property of

seizures as well

o Detention of property at one point may become an unreasonable seizure

o If police hold property for too long, they may need probable cause to justify theseizure, not just reasonable suspicion.

US v. Place- had reasonable suspicion but not probable cause to believe defendants

luggage contained drugs. The luggage was detained, but not searched. They ordered adrug

sniffing dog (because this isnt a search, so it wouldnt matter if they didnt have probable

cause) but the dog was too far away. The problem was that it took too long- even though

the luggage wasnt searched, it was considered seized because they had it for too long

o But Arizona v. Hicks (nice stereo in gross apartment)- not a frisk if its not motivated

by officers safety. If theyre looking for evidence, its not a frisk.

Search Incident to Arrest Trigger: A lawful, custodial arrest

Scope: An officer can search the person and the area within his wingspan

The right to search is AUTOMATIC after the custodial arrest (US v. Robinson). Its ok because

if the arrest is lawful, the search is lawful.

CHIMEL V. CALIFORNIA (p. 288)


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FACTS: Petitioner was arrested in his home after being presented with a search warrant. Officers

asked him if they could search the house and he said no; the officers said that because the arrest

was lawful, they had a right to search the house. Police found evidence of robbery and petitioner

was convicted.

ISSUE: Can a warrantless search of the petitioners entire house be constitutionally justified as

incident to the arrest?HOLDING: No. The search was wrongfully conducted

REASONING: There is ample justification to allow a search of the area in the immediate control of

the arrestee; police officers need to be protected from possible threats of attacks. However, this

does not extend to the entire house. It is allowed because we want to prevent:

1. The destruction of evidence

2. The use of a weapon

RULE:Incident to an arrest, police officers may search the person and the area in his immediate

control without a search warrant; if the house is searched, the 4th Amendment is violated.

HypoSame facts as Chimel. But what if the police didnt have probable cause for the arrest

warrant? Then the search is out. A search can only be a valid search incident to arrest if its a valid

arrest!

NOTE:Its critical to understand the differences between Terry stops and Searches Incident to

Arrests:

The justification for a search incident to arrest is broader- they can look for weapons and

evidence.

Under a Terry stop, and officer can only look for weapons.

Consider if an exception applies to the warrant requirement and/or the probable cause

requirement: Terry v. Ohio- there are exceptions to both

o warrant- no warrant is needed

o probable cause- only reasonable suspicion, not probable cause, is needed

Search incident to arrest- there are exceptions to both

o warrant- no warrant is needed and the PO can search automatically

o probable cause- the officer may search without any justification.

Timing of the grab area determination

The determination of the grab area should be determined by where the defendant was standing at

the time of the arrest, not where he is at the time of the search.Defendant is arrested in his kitchen, and later moved to the living room. The police can conduct a

search of what was the wingspan of the kitchen. If they search before the arrest, they better be

sure that they have probable cause for the arrest or theyll lose the evidence!

Washington v. Chrisman- officer spotted a young man who appeared to be underage carrying

liquor. He asked for identification and the young man told him it was in his dorm room. The officer

accompanied him to his room. The officer remained in the doorway and saw the roommate acting


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nervous. The officer entered the room and noticed a pipe and marijuana. Both roommates were

read their rights and the officer asked about the drugs

Court stated that the officer had a right to remain at the suspects elbow at all times, even

though the officer did not think that the suspect was going to his dorm room to get a

weapon or to destroy evidence.

Temporal Limitations

It usually does not matter if the search comes before the arrest! Where the formal arrest followed

quickly on the heels of the challenged search of petitioners person, we do not believe it

particularly important that the search preceded the arrest rather than vice versa. Rawlings v.

Kentucky

Protective Sweeps

Maryland v. Buie- a protective sweep is a quick and limited search of a premises, incident to an

arrest and conducted to protect the safety of police officers or other.

Need reasonable suspicion that the area swept harbors an individual posing a danger to theofficer or others.

Since a protective sweep is only looking for people, the scope of the protective sweep is

limited to areas where a person could be found (not a nightstand drawer, altoid can, etc)

Arrest Through citation

Knowles v. Iowa- if an officer gives a defendant a ticket instead of arresting him, the officer cannot

search! When people are issued a citation, theyre less likely to act as crazy as they might if they

were arrested. Less risk to officer, although court says its always risky.

Removal from the Arrest Scene

Chambers v. Maroney- if a search is too removed from an arrest, it will not qualify under the searchincident to arrest exception. Officers searched a car that had been impounded and brought to the

police station after its occupants have been arrested.

Searches of the Person Incident to Arrest

UNITED STATES V. ROBINSON (p. 297)

FACTS: Officer saw Robinson driving and believed he had probable cause to pull him over because

only 4 days earlier, Robinson had a suspended permit. Robinson was pulled over and arrested

Officer patted down Robinson and felt an object in defendants coat. He couldnt tell what it was, so

he removed it. It was a pack of cigarettes. Officer opened it and found capsules containing heroin.ISSUE: Did the officer violate the 4th Amendment by conducting a search of the defendants person

incident to an arrest?

REASONING:The Supreme Court stated that the authority to search a person incident to an arrest

is not dependent on whether a court may later determine if there was a probability that weapons

or other evidence may be found. A custodial arrest of a suspect based on probable cause is a

reasonable intrusion under the 4th Amendment; that intrusion being lawful, a search incident to

the arrest required no additional justification.


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RULE:Incident to a lawful arrest, a police officer may conduct a search of the defendants person

without violating the 4th Amendment. No justification is needed for the search because the

defendant is already lawfully under arrest. Its a bright line rule!

TWO MAIN POINTS:

1. The right to a SIA of the person is AUTOMATIC.

2. At least regarding the search of the person, containers are included.

ATWATER V. CITY OF LAGO VISTA (p. 301)(The Arrest Power Rule)

FACTS:Defendant was driving with her two small children in the front seat of her truck without a

seatbelt. An officer stopped her and placed her under arrest. Defendant claims that her arrest

violated the 4th Amendment because she could not have faced jail time for the traffic offense; the

most she could face was a fine.

ISSUE:Can the police arrest a defendant for an offense that they could not face jail time for?

HOLDING:Yes.

REASONING:She was arrested for a violation. It was the common law rule that you can be arrested

for a violation; all 50 states follow it. The fact that its not punishable by jail time doesnt change

the fact that its a misdemeanor. Its all dependent on what the jurisdiction labels it.

RULE:A person may be lawfully arrested for a violation even if the punishment for being found

guilty of that violation does not include jail time.

Hypo

Same facts at Atwater, except the jurisdiction calls the crime of not wearing a seatbelt and not

fastening children in a seatbelt in the front seat as a civil violation. The police officer arrests the

defendant. Was her arrest a violation of the 4th Amendment?

Yes. She cant be arrested if its not labeled a misdemeanor. The Courts ruling depends on

the label of the crime.

Virginia v. Moore (p. 324)- considered whether a police officer violates the 4th Amendment by

making an arrest on probable cause but prohibited by state law. Moore was arrested for driving

with a suspended license. They searched him incident to arrest and found drugs. State law didnt

permit a custodial arrest for driving with a suspended license.

Supreme Court held that the search was valid under the 4th Amendment.

The line is whether its designated a crime; if it is, its arrestable even if the state legislature

says it isnt. Due to the common law rule that offenses are arrestable.

o If its only punishable by fine but labeled a misdemeanor still arrestable

o If it violates state law to arrest for this offense, but its still labeled a violationstill

arrestable under the 4th Amendment.

The Arrest Power Rule Applied to Automobiles

New York v. Belton (p. 309)- starts out as a bright line rule

RULE:Officers are permitted to search the car of an arrestee incident to their arrest, and can open

any containers that are found in the passenger compartment (DOES NOT INCLUDE THE TRUNK).

The Court held that the passenger compartment of a car is comparable to the grab area.


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Thornton v. United States (p. 310)

RULE: The search power of Belton applies whenever the arrestee was a recent occupant of the car.

Thornton was out of the car already at the time he was arrested, but the Court held that it was

necessary to allow this rule, or defendants could escape the search of their car by immediately

getting out of it before they were stopped by police.

ARIZONA V. GANT (p. 312)-THE FINAL RULE- Limits the Arrest Power Rule after the arrest of a

recent occupant.

FACTS:Gant was arrested for driving with a suspended license. He was handcuffed and locked in

the back of the patrol car when officers searched his car and found cocaine in the pocket of a jacket

that was on his backseat. Officer conducted the search because the law says we can do it.

ISSUE:When a person is handcuffed in the back of a patrol car, do the police have the right to

search the defendants vehicle incident to arrest?

HOLDING:No.

REASONING:The whole purpose of the Chimel rule was that a person can either 1) pose a threat to

the officer or others and/or 2) possibly destroy evidence. Therefore, officers had an automatic right

to conduct a search incident to an arrest. In this case, the arrestee poses no threat because he is

already secured.

RULE:The Chimel rational authorizes police to search a vehicle incident to a recent occupants

arrest only when the arrestee is unsecured and within reaching distance of the passenger

compartment at the time of the search.

NOTE:Gants two rules (p. 314): police can conduct a vehicle search incident to arrest when:

1. The arrestee is unsecured and within reaching distance of the passenger compartment at

the time of the search; and

2. Its reasonable to believe that the vehicle containsevidence of the crime of the offense of

the arrest. The Court acknowledged that there will be situations where the offense that thedefendant was arrested for will supply a basis for searching the passenger compartment.

KNOWLES V. IOWA (p. 322)(SIA after a citation?)

FACTS:Defendant was stopped for speeding and was given a ticket instead of being arrested.

Under Iowa law, he could have been arrested for speeding. Officer conducted a search of

defendants car.

ISSUE:Can a police officer conduct a search incident to arrest of a defendants car when he only

gave the defendant a ticket and didnt arrest him?

HOLDING:No.

REASONING:There is a lesser concern for the officers safety when he issues a ticket as opposed to

arresting someone; people may act crazy when they get arrested, but probably wouldnt act toocrazy when they get a ticket.

RULE:A police office may not conduct a search incident to arrest of a recent occupants car when

he issues the defendant a ticket instead of arresting him (if it was an arrestable offense).

Pretext Stops and Arrests

WHEN V. UNITED STATES (p. 325)


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FACTS:Officers witnessed a truck with a few young people in it stopped at a stop sign for about 20

seconds. The driver seemed to be looking at the lap of the person in the passenger seat. The

officers turned around to head back toward the truck and the truck immediately sped away at an

unreasonable speed. They approached the car saw two large bags of cocaine. Passengers allege

that the stop was not justified by PC or RS to believe that the petitoners engaged in illegal drug

activity, and that the Officers ground for approaching the vehicle (traffic violations) was pretextual.ISSUE: Whether the temporary detention of a motorist who the police have probable cause to

believe has commited a civil traffic violation is inconsistent with the 4th Amendment prohibition

against unreasonable seizures unless a reasonable officer would have been motivated to stop the

car for the traffic offense?

HOLDING: No. Its consistent with the 4th Amendment

REASONING:The stop of the vehicle was consistent with the 4th Amendment because the officer

did have probable cause to stop the vehicle for the traffic offense. Court looks too see if there was

PC. The Court rejected petitioners argument that the court should look to see if an officer would

have really stopped a vechicle in that situation. Court said as long as there is PC for the reason

stopped, the stop is ok.

RULE:As long as the officer has objective probable cause for an arrest, the arrest is lawful even if

the officer had a pretext for stopping the defendant.

Automobiles and other immovable objects

Carroll v. United States (p. 342)

FACTS:Officers stopped two men driving and searched their car, finding liquor. Issue was whether

a warrant was needed to search their car.

RULE:A warrant is not needed to search a stopped car.

CHAMBERS V. MARONEY(p. 343)FACTS:Gas station was robbed by two men with guns. the men were later arrested and their car

was driven to the police station, where it was searched. The search found guns and evidence of

recent robberies.

ISSUE:Did the search of the car at the police station violate the 4th Amendment?

HOLDING: No.

REASONING:Since the officers had PC to search the car at the time of the arrest, the search of the car thatoccurred later was not a violation of the 4th Amendment.

Coolidge v. New Hampshire (p. 347)

FACTS:Defendants car was parked in his driveway at the time of his arrest. Officers seized it atsearched it two days later at the police station, and two more times in the following months.

RULE:In the absence of exigency, police may not search a car without obtaining a warrant. A car

that is parked in a residential driveway is not considered mobile.

California v. Carney(p. 347)- the purposes of not requiring a warrant for a search of a car are

1. mobility

2. lower expectation of privacy in ones car.


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The car was a mobile home. The Court decided to treat it like other vehicles, despite the fact that

it also functions as a home. To treat mobile homes differently would be difficult because Courts

would have to look at the size of the vehicle in every case, and failure to apply the automobile

exception ignores the fact that mobile homes are easily capable of moving, and they they are good

instruments for drug activity.

Cardwell v. Lewis(p. 346)- the fact that a car isnt actually moving at the time it is seized is

irrelevant. Lewis car was seized from a public lot, but the Court found that this didnt have any

significance.

Moveable Containers- In and Out of Cars

United States v. Chadwick(p. 349)- the mobility of a footlocker justified its seizure upon probable

cause, but a warrant was required to search the locker unless exigent circumstances rendered a

seizure insufficient to protect the interests (such as if the locker was ticking).

United States v. Ross(p. 350)- Court upheld the warrantless search of a paper bag and pouch found

during the search of a car. Officers can search containers in a car because contraband goods are

rarely strewn across the trunk or floor of a car.

CALIFORNIA V. ACEVEDO(p. 351)

FACTS: An agent informed police that he seized a package containing marijuana which was shipped

to Federal Express and was supposed to be delivered to a house. The police set up an interception.

A police officer was at the post office and arrested the person who arrived to pick up the package.

They followed the man and he took the package into his apartment. Acevedo arrived at the

apartment. He left about 10 minutes later and was carrying a brown paper bag that looked full. He

placed the bag in his trunk and started driving away. The officers stopped him and opened the

trunk and the bag, finding marijuana.ISSUE:Is a warrant required to search a container placed in a car when the officer has probable

cause to believe that contraband or evidence is contained there?

HOLDING:No.

RULE:Police may search an automobile and the containers within when they have probable cause

to believe that there is contraband or evidence contained there.

Hypo

Police witness a drug deal on a public street. The defendant placed the drugs in her purse. Is there

a way to search the purpose without getting a warrant?

There is probable cause to believe that she has drugs Can arrest her, and then conduct a search incident to arrest. Probable cause to believe that

drugs are in the purse does not mean by itself that the police can search the purse

If she went into a car, they can search because of the automobile exception

Wyoming v. Houghton(p. 357)

FACTS:Car pulled over for speeding and faulty brake light. Officer notices a syringe in the drivers

shirt pocket. PO ordered the two passengers out of the car and asked them for identification. While


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conducting the search of the passenger compartment, PO found a bag that passenger respondent

claimed as hers. Drugs were found in a container in the purse.

RULE:Police officers with probable cause to search a car may inspect passengers belongings found

in the car that are capable of concealing the object of the search.

REASONING:If not, passengers could falsely claim that a bag/containers is their own to prevent the

police from searching it. Drivers and passengers are often friends and engaged in a commonenterprise, so this would pose a serious problem to police officers.

Exigent Circumstances

The exigent circumstances exception excuses the officer from having to obtain a

magistrates determination that probable cause exists; it does not permit a search in the

absence of probable cause

The exigent circumstances exception applies equally to arrests and to searches

The Exigency Exceptions to the Warrant Requirement1. Hot pursuit

2. Police/Public Safety

3. Destruction of Evidence

Other Rules pertaining to Exigency

Impermissible created exigency

Prior opportunity to obtain a warrant

1. Hot Pursuit

If officers are in hot pursuit of a suspect, this will excuse an arrest warrant where one

would otherwise be required and a search warrant where a search of an area must be

conducted in order to find and apprehend the suspect.

Warden v. Hayden (p. 362)

FACTS:Officers pursued a robbery suspect into what was later determined to be his home. The

suspects wife answered the door, and the police entered the home to search for the suspect. They

also looked for weapons that he might have concealed during the pursuit. They found incriminating

clothing in the washing machine.

RULE:The hot pursuit doctrine is based on the premise that the suspect,

Criminal Procedure I

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