1. THE FOURTH AMENDMENT
  2. Requisites for application of Fourth Amendment

1.Government action (or private actor as an instrument or agent; look at totality of circumstances)

  1. Government employees
  2. Private actors acting at request of government or in compliance with government laws, regulations or policies (e.g. jailhouse inmate acting as undercover informant; railroad companies drug-testing employees after an accident)
  3. When distinction is unclear:
  4. Level of government knowledge or acquiescence?
  5. Purpose of private actor?

2.“Search” or “seizure”

  1. What is a search? Katz
  2. Did defendant manifest an actual expectation of privacy?
  3. Is the privacy interest one which society is prepared to accept as reasonable?
  4. What is a seizure?
  5. Meaningful interference with one’s possessory interest in that property
  6. Person: when physical force is applied or if the person submits to an official show of authority
  7. Would a reasonable person in the suspect’s shoes…

3.Standing: no standing to assert the Fourth Amendment rights of a third party (this inquiry has collapsed into the question of whether a Fourth Amendment search took place)

  1. Did the government intrude on this defendant’s reasonable expectation of privacy
  2. Search question: did the government intrude on the defendant’s reasonable expectation of privacy?
  1. The Exclusionary Rule

1.Mandates exclusion of evidence obtained in violation of the Fourth Amendment

2.The exclusionary rule applies to the states through Fourteenth Amendment due process clause. Mapp v. Ohio (police seized obscene materials from Mapp’s home without a proper warrant)

  1. Overturned Wolf v. Colorado (the exclusionary rule does not apply to the states)
  2. Rationale
  3. Majority of states now apply the exclusionary rule
  4. No adequate alternative remedies
  5. Fulfills the main purposes of the exclusionary rule: (a) deterrence and (b) judicial integrity

3.LeonGood Faith Exception (objective test – whether a reasonable officer would have relied on the defective search warrant)

  1. An exception to the exclusionary rule allows the admission of evidence that was obtained by officers who reasonably relied on a defective search warrant (in Leon, not based on sufficient probable cause)
  2. All circumstances may be considered
  3. Balancing: Costs of applying exclusionary rule versus the benefits of applying the exclusionary rule
  4. The deterrent effect of the exclusionary rule does not apply to careless judges/magistrates
  5. Leonextended:
  6. Reasonable reliance on a statute later found to be unconstitutional. Illinois v. Krull
  7. Reasonable reliance on a non-existent warrant. Arizona v. Evans
  8. Exceptions to the Leon Exception
  9. If police knowingly or recklessly make false or misleading statements in the affidavit
  10. If the issuing magistrate wholly abandons his judicial role as neutral arbiter (Lodi Sales – magistrate became part of search team)
  11. If the warrant is based on an affidavit so lacking in probable cause that official belief in its existence is entirely unreasonable
  12. If the warrant is so facially deficient that the executing officers could not reasonably have presumed it to be valid (particularity requirement)
  13. But seeMassachusetts v. Sheppard(officers could not obtain a search warrant for homicide, but only controlled substances; judge assured officers that the changes could be made to the controlled substances warrant form; insufficient changes were made, but Court held it was reasonable for officers to rely on judge’s word that the form was sufficient as it stood).

4.Exclusionary Rulenot applicable:

  1. Grand jury proceeding
  2. Parole revocation proceeding
  3. Deportation proceeding
  4. Sentencing hearings
  5. Violations of knock and announce
  1. What Constitutes a Search?

1.Fourth Amendment “search” test: Katz v. United States (Katz used a public phone booth for illegal sports betting and police conducted a warrantless wiretap)

  1. Defendant manifests a subjective expectation of privacy
  2. Society recognizes the expectation of privacy as objectively reasonable

2.Factorsin the search evaluation:

  1. Could any member of the public have done/seen what the police did; was the evidence knowingly exposed to the public? (see also factor e.)
  2. United States v. Karo (police installed a beeper in a can of ether and traced the signal; when the signal stayed in the house even after the car left, the police used that information to obtain a search warrant for the house)
  3. Holding: (1) installation of a beeper within contraband does not constitute a Fourth Amendment search, (2) but the monitoring of the beeper within the home did constitute a search
  4. First holding rationale: the can of ether belonged to the DEA, and the custodian of the can consented to the installation
  5. Second holding rationale: the information obtained by monitoring could not have been obtained through visual surveillance (expectation of privacy)
  6. Florida v. Riley (police observed marijuana plants through a partially open greenhouse roof in Riley’s backyard while flying in a helicopter at 400 feet)
  7. Holding: aerial surveillance of the interior of a partially covered greenhouse in a residential backyard did not constitute a search
  8. Public air travel is common (California v. Ciraolo) and the police did not violate FAA standards in this case
  9. Cf.Kyllo(sense-enhancing technology constituted a search if not generally accessible to public)
  10. California v. Greenwood (garbage collector handed trash over to police who found evidence of drug use, then used that evidence to secure a search warrant for the house)
  11. Holding: there is no reasonable expectation of privacy in garbage left on the curb
  12. Garbage is readily accessible to members of the public
  13. Defendants voluntarily turned trash over to a third party (trash collector)
  14. Dissent (Brennan): (a) public access does not deplete reasonable expectation of privacy; (b) this is different that Smith v. Maryland (pen register case) because the trash was in sealed, opaque bags
  15. Location of search
  16. Fourth Amendment protections strongest in the home. Riley, Karo, Kyllo
  17. Open Fields Doctrine. Riley
  18. The home is the central setting of the Fourth Amendment protection; curtilage is protected to some extent; “open fields” are entitled to no protected at all, even if part of the property
  19. Factors for determining whether “open fields”: (a) distance from home; (b) nature of use of property; (c) steps the property owner has taken to protect the open areas; (d) whether open to the public or enclosed by, e.g., a fence
  20. Steps taken by defendant to protect privacy
  21. Katz (closure of telephone booth door)
  22. Cf.Riley (insufficient concealment of greenhouse)
  23. Level of intrusiveness
  24. Riley (helicopters did not stir up dust or disturb home)
  25. United States v. Place (luggage was never opened; personal items not revealed)
  26. Holding: use of a canine sniff at an airport does not constitute a Fourth Amendment search because the information obtained was limited (“limited search”)
  27. Whether intimate details of the home were observed (rejected as a proper test by Scalia in Kyllo)
  28. No intimate details of the home or curtilage observed.
  29. Note: this is not a strict standard, but only a factor that may be relevant to demonstrate non-invasive nature of search. Riley
  30. Whether technology used was in “general public use” (see also factor a.)
  31. Kyllo v. United States (police used thermal sensors to detect heat lamps used to grow marijuana); Knotts
  32. Holding: use of sense-enhancing technologies did constitute a Fourth Amendment search
  33. The sense-enhancing device used here was not in general public use
  34. The thermal imagine was aimed at the home, which enjoys a special bright-line protection under the Fourth Amendment
  35. Dissent questions ambiguity of “general public use”
  36. Voluntary relinquishment to a third party
  37. Smith v. Maryland (numbers dialed on a telephone are voluntarily relinquished to a third party for purpose of a pen register)
  38. Greenwood (defendants had voluntary relinquished trash to a third party)
  39. White (voluntary conversation with a government informant is voluntarily relinquishment to a third party)
  40. Whether officer viewed activity from a lawful vantage point
  41. Riley (police helicopter was flying within FAA-permitted airspace and at a legal level)

3.There is no Fourth Amendment search when government agents wire an informant to record conversations with a suspect. United States v. White (police recorded conversations between defendant and government informant without a warrant)

  1. Risk rationale (Hoffa v. United States)
  2. Chilling effect on innocent conversations?
  1. Probable Cause

1.Definitions (somewhere between a ‘mere hunch’ and ‘proof beyond a reasonable doubt’)

  1. To Search: reasonable grounds to believe that evidence of a crime is presently at the place to be searched
  2. Anticipatory search warrants: magistrate must determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. United States v. Grubbs
  3. To Arrest: reasonable grounds to believe that (a) a crime has been committed, and (b) the arrestee has committed it

2.Aguilar-Spinelli Test (rejects totality of circumstances test) (Spinelli v. United States):

  1. (1) Basis of knowledge [underlying circumstances]
  2. How did the informant get to know what he claims to know (personal observation, demonstration of lots of detail)?
  3. If the informant did not personally observe, the magistrate would look for some evidence that the individuals the informant relied on for his information are in themselves reliable
  4. (2) Veracity [(a) credibility of confidential information and (b) reliability of information]
  5. Past or repeated credibility
  6. Usually detail and corroboration enhances the “veracity” prong, but can also enhance the “basis of knowledge” prong if the detail goes to the informant’s intimate involvement in the crime or with the defendant

3.Illinois v. Gates: Court rejects Aguilar-Spinelli test and returns to totality of the circumstances test (less demanding on government)

  1. A weak showing under either the knowledge or veracity prong can be made up by a strong showing in the other
  2. Majority: police corroboration goes to support either prong
  3. Dissent: corroboration only goes to veracity prong
  4. The Court even seems to suggest that the government may not need either prong if the totality of the circumstances supports probable cause
  5. Aguilar-Spinelli too difficult to apply for magistrates (should have greater discretion)
  6. Probable cause evaluation should be practical, fluid, and based on common sense

4.Common enterprise:probable cause exists if the police had reasonable grounds for believing a crime had been committed, and reasonable grounds to believe that any or all of the individuals present committed the crime. Maryland v. Pringle (three men stopped in a car for speeding; driver consented to search; officer found cocaine in back seat, but no evidence linking to any of the men)

  1. People in a car are more likely to be involved in a criminal enterprise together (rejecting Ybarra: one person’s proximity to another individual suspected of criminal activity does not give rise to probable cause to search the first person)
  2. There was no singling out by a government informant in this case (rejecting Di Re as inapplicable: any inference that everyone on the scene of a crime is a party disappears if informant singles out the guilty person)
  1. Search Warrants

1.Warrant Preference View: the Fourth Amendment prefers a warrant; a warrant or exception to the warrant requirement is required

2.Separate Clauses View: warrants are not required in all cases; Fourth Amendment is read as two separate clauses, (1) prohibiting unreasonable searches and seizures, and (2) if a warrant is used, certain requirements must be met

3.Requirements for a valid warrant

  1. Probable cause (to arrest versus to search)
  2. Oath or affirmation
  3. Particularity in location and evidence to be seized
  4. To limit scope
  5. To prevent exploratory searches
  6. Issued by neutral and detached magistrate (not neutral if magistrate is involved in the search or receives a fee for issuing each warrant)

4.Maryland v. Garrison (police executed search warrant to search McWebb’s apartment on the third floor of a multi-family home; floor was actually divided into two apartments and police searched Garrison’s)

  1. Holding: although the warrant violated the particularity requirement by only stating “third floor,” police acted reasonably based on the information they had at the time they applied for the warrant, and the officer’s conduct during execution was consistent with reasonableness
  2. Dissent: there were seven mailboxes outside the building, the apartments were mirror images of each other, and police never clarified with informant
  3. Cf.Maryland v. Pringle (police acted reasonably in arresting all three occupants of a car even though there was no evidence tying the drugs to any single occupant)

5.Knock and announce rule. Richards v. Wisconsin (Court reviewed Wisconsin Supreme Court holding that police are never required to knock and announce when executing a search warrant in a felony drug investigation)

  1. Holding: a “no-knock” entry must be based on reasonable suspicion that knocking and announcing would be dangerous (threat of physical violence) or futile or would allow for the destruction of evidence (case-by-case evaluation); Court rejects categorical exceptions to the knock and announce rule
  2. How much time must police wait before using force to enter? No specific amount of time. US v. Bank
  3. Factors to consider
  4. Size of the property (for the defendant to get to the door)
  5. Nature of what the police are searching for (drugs flushed down the toiler versus stolen goods or cash)
  6. Time of day or night at which the police arrive
  7. Potential for a violent response to the police
  8. Potential for destruction of property (police should wait longer if property will be destroyed by forceful entrance)
  9. Exclusionary rule not applicable to violations of knock and announce
  1. Arrests

1.If in public, no arrest warrant is required for a felony or misdemeanor(as long as the arrest is based on probable cause). United States v. Watson (relying on historical inertia and pragmatism)

  1. WatsonDissent: common law rule allowing warrantless public arrest was based on a discrete group of felonies; but there are so many felonies now that the rule has become absurd
  2. Staleness: the probable case that made the warrant valid no longer exists (more likely for search warrants than arrest warrants; once the crime is committed, the suspect continues to be guilty and subject to arrest)
  3. Gerstein: if the arrestee remains in custody, there must be a prompt judicial determination of probable cause (even though the police determination of probable cause is only required for arrest)
  4. McLaughlin: judicial determination of probable cause will comply with Gerstein if made within 48 hours
  5. Officer may arrest someone for a non-jailable offense without violating the Fourth Amendment. Atwater v. City of Lago Vista (suspect pulled over for not belting child into car; officer had option to cite or arrest; suspect argued that arrest for non-violent misdemeanors violated Fourth Amendment)
  6. Officer may stop a vehicle as long as he has probable cause to believe a traffic violation has occurred. Whren v. United States (police in a high-drug area noticed young occupants with temp plates acting suspiciously; does a pretextual stop violate the Fourth Amendment?)
  7. Test: whether a police officer, acting reasonably, could have made the stop (rejecting test: whether officer would have made the stop)
  8. Scalia focuses on reasonableness (separate clauses view)

2.If in home, arrest warrant based on probable case is required. Payton v. New York

  1. Payton Dissent: The four common law restrictions are sufficient to protect an individual’s Fourth Amendment rights during arrest in his home
  2. Felony
  3. Knock-and-announce
  4. Daytime
  5. Stringent probable cause (reasonable belief arrestee is in home)
  6. Arrest of an individual in another’s home. Steagald
  7. Valid search warrant to enter the non-suspect’s home is required in addition to a valid arrest warrant for the suspect (unless the suspect spends a sufficient amount of time in the house so that it can also be considered his home)
  8. The non-suspect homeowner has recourse through the exclusionary rule if criminal evidence is seized from his home during the arrest
  9. The suspect cannot raise a Fourth Amendment claim on the homeowner’s behalf (no privacy interest in the home)
  10. Exceptions
  11. Consent to entrance
  12. Exigent circumstances
  1. Exceptions to the Warrant Requirement

1.Search Incident to Arrest

  1. Requirements
  2. Valid custodial arrest
  3. Probable cause
  4. Reasonable belief that (a) the crime has been committed and (b) this person committed the crime
  5. Arrest warrant (if arresting in home)
  6. Search warrant (if arrest executed in third-party’s home)
  7. Arrest must be “substantially contemporaneous” with the search
  8. Search may occur first
  9. Police must already have probable cause for the arrest
  10. Arrest must follow quickly on the heels of the search (Rawlings v. Kentucky)
  11. If the search incident to arrest is of the home, the suspect must be arrested within the house in order for the search to become subject to the exception. Vale v. Louisiana (police were conducting surveillance on Vale’s home; they saw him conduction a drug transaction outside; they arrested him outside and then searched his home)
  12. There was no exigent circumstances exception because one officer could have guarded Vale’s family members while the other officer got a warrant (see p 188 note b). Segura v. United States;United States v. McArthur
  13. Permissible scope
  14. Arrestee’s person. United States v. Robinson (police arrested Robinson for driving without a license; a search of his person found a crumpled cigarette package containing heroine; valid search and seizure of evidence?)
  15. Holding: an officer may make a full search (not just Terry pat-down) of a person incident to a valid arrest
  16. Police need clear, bright-line rules for quick application in the field
  17. No justification requirement (cf. wingspan search)
  18. Robinson Dissent (Marshall): “container doctrine” should have been applied to the cigarette package (the officer knew it was not a weapon and it was out of the suspect’s control)
  19. Arrestee’s wingspanonly(rationales: (a) safety of officers/prevent access to weapon and (b) preservation of evidence). Chimel v. California (police went to Chimel’s home to arrest him for burglary; could they search the entire house incident to arrest?)
  20. Holding: the existence of probable cause required the police to get a warrant to search the rest of the house (warrant preference view); the burden of showing an exception to the warrant requirement rests on those seeking it
  21. Justification requirement: search of wingspan must be strictly tied to and justified by the circumstances
  22. Note: the intensity of the search does not vary with the gravity of the crime
  23. Extension of Chimel wingspan rule
  24. Maryland v. Buie
  25. Closets and spaces immediately adjoining the place of arrest from which an attack can launch (no further justification required)
  26. Protective sweep: cursory inspection of spaces where a person could be found
  27. Limited in intensity, but not space (entire house subject to cursory inspection)
  28. Requires only reasonable suspicion of danger based on specific and articulable facts
  29. Passenger compartment of car. New York v. Belton (police pulled over speeding car and arrested passengers when he smelled marijuana; police searched car and found marijuana and cocaine in a jacket in the backseat)
  30. Holding: when an officer makes a lawful custodial arrest of the occupant of an automobile, the officer may search the passenger compartment of the car (excluding the trunk) (Court seeks to create a bright-line rule for easy application in the field)
  31. Police may examine the contents of any containers found within the passenger compartment (containers: glove compartment, consoles, other receptacles, luggage, boxes, bags, clothing, etc.) (note: this seems to be a nod to the limited rationale of Chimel, but the holding undermines Chimelso much, why bother?)
  32. Belton clarifications
  33. Arrestee must be occupant or recent occupant of the car. Thornton v. United States(police arrested suspect after he left the car)
  34. ThorntonConcurrence (Scalia): proposes limited Belton to situations where it is reasonable to believe evidence relevant to the crime of the arrest might be found (but this undermines Robinson’s lack of a justification requirement)
  35. This case still leaves open the question of how recent is “recent occupant” and how close is “close proximity.”
  36. A citation (rather than arrest) is insufficient to invoke a Belton/Robinson search incident to arrest. Knowles v. Iowa (does a citation authorize the officer to conduct a full search of the car?)

2.Automobile Exception