A. Incorporation and Retroactivity

A. INCORPORATION AND RETROACTIVITY

Incorporation

A right guaranteed by the Sixth Amendment which is fundamental to the American scheme of justice applies to the states through the Fourteenth Amendment (Duncan)
A right is fundamental if it is implicit in the concept of ordered liberty…selective incorporation
Implicit in the concept of ordered liberty…without said right, one could not have a fair criminal justice process
It is very debatable as to which rights fall under this fundamental fairness approach
The right to an indictment by grand jury and the right to bail that is not excessive are the only two criminal procedural rights NOT incorporated
Rights to a speedy trial and a jury trial are incorporated

Retroactivity

The benefit of a new rule is always given to the litigant who establishes it, even though that constitutes retroactive application. The SC has done so for two reasons: (1) to provide litigants with incentives to improve past decisions of the Court, because few litigants would ask the Court to establish a new rule that they could not use; and (2) to assure that there is a concrete case or controversy before the Court.
In general, new constitutional rules are not retroactively applicable to cases on collateral review. (Teague)
Collateral review exception
Applies only when the likelihood of an accurate conviction is seriously diminished by not considering the new constitutional measure
Really will only apply in watershed moments in criminal procedure
Very, very infrequent

B. FOURTH AMENDMENT

Searches and seizures are deemed unreasonable and presumptively unconstitutional when done without a warrant
Fourth Amendment is silent with regards to remedy
However, violation of the Fourth Amendment leads to the exclusion of unconstitutionally obtained evidence…exclusionary rule
Government activity must be reasonable under the Fourth Amendment only if it is deemed either a “search” or “seizure”

The Reasonable Expectation Test

Katz
Two-pronged test
(1) the government conduct must offend the citizen’s subjective manifestation of a privacy interest
(2) the privacy interest invaded must be one that society is prepared to accept as “reasonable” or “legitimate”
“the Fourth Amendment protects people and not places”
if both prongs are satisfied then the government has committed a search (and if unreasonable [without a warrant or otherwise] it is a violation of the Fourth Amendment)

Interests Protected by the 4th after Katz

Searches threaten privacy interests, and seizures threaten property interests
It is easier to figure out what a seizure is as opposed to what a search is

Applications of the Katz Principle

Open fields doctrine
open fields are not protected by the Fourth Amendment
not going to be a case-by-case analysis, but instead a bright line rule because police officers need clear guidance when engaged in their duties
Access by members of the public…public-access-therefore-police access
Consensual electric surveillance
Financial records
Trash
Manipulation of bag in public transit
A law enforcement officer’s physical manipulation of a bus passenger’s carry-on luggage violates the Fourth Amendment’s proscription against unreasonable searches. (Bond)
Distinguished from air travel
Canine sniffs
Canine sniffs of closed luggage for drugs are not searches(Place)
not a search because
there is no reasonable expectation of privacy in contraband/illegal activity, and
the dog sniff does not expose non-contraband
If a dog positively alerts, this constitutes legally obtained information that can be brought to a Magistrate in an attempt to obtain a warrant
Luggage may be seized for a limited amount of time
Use of technology to enhance inspection
Where the government uses a device that is not in general public use to explore details of the home that previously have been unknowable without physical intrusion, the surveillance is a “search” and presumptively unreasonable without a warrant. (Kyllo)
Significance of “the home”
Reopening permitted (Jacobsen)
if an initial intrusion (at least into a container) is not covered by the 4th, a later intrusion by police officers to the same extent is also free from 4th constraints

The tension between the reasonableness and the warrant clauses

The importance of the warrant clause generally

A search and seizure in some circumstances is PRESUMED to be unconstitutional if no prior warrant is obtained, but in many other circumstances the prior warrant is unnecessary to justify a search or seizure
The 4th requires that police officers obtain a warrant from neutral and detached magistrate before searching a person’s living quarters. (Johnson)
The natural magistrate is to decide whether the probable cause and specificity requirements have been satisfied
Used to ferret out competition between police and suspects

Obtaining a search warrant: constitutional prerequisites

There is no clear definition for probable cause
Aguilar-Spinelli Test…Two-prong test for determining whether hearsay information provides the probable cause needed to make an arrest
(1) Reliability of the informant
reliable…police officers and law abiding citizens
however, these citizens are often not the best sources of criminal activity
criminals or former criminals are reliable if they have a good track record of providing information to police or they make declarations against their own interest
(2) Credibility (Reliability) of the information
reliable…informant makes direct statement of personal knowledge constitutes probable cause
reliable…a statement containing such a wealth of detail that personal knowledge is inferred and can create an inference of probable cause
Both prongs are independent and must both be satisfied
Determines the level of suspicion needed by police to invade our privacy
A defect in one or both prongs can be remedied by independent corroboration of substantial or of suspicious facts
In hearsay contexts
Fairly tough standard
Court formally overrules this test in the Gates case
Gates is a much more permissive test, so courts still refer to the A-S as a first threshold
Gates…A magistrate may issue a search warrant if the “totality of the circumstances” presented in the affidavit indicates probable cause for the search, even if the “veracity” and “basis of knowledge” factor of the two-pronged test of Aguilar and Spinelli cannot be satisfied.
Probable cause is more of a common sense determination
A-S was deemed to be too rigid
Gates makes the warrant requirement easier in two areas
(1) When one of the two prongs was not satisfied or is weaker than the other
(2) when the tip is insufficient on its own to establish probable cause, but the information is corroboration
Gates says the minimal corroboration is sufficient
Four factors of Gates “totality of the circumstances” test:
(1) the nature of the information;
(2) whether there has been an opportunity for the police to see or hear the matter reported;
(3) the veracity and the basis of knowledge of the informant;
(4) whether there has been any independent verification of the matters reported though police investigation

Pringle…The passenger of a vehicle, even if separated from the drugs, has sufficient constructive possession of drugs located in the vehicle to give rise to probable cause for the passenger’s arrest

Devonpeck…An arrest does not violate the 4th when a police officer has probable cause to make the arrest, even if the offense is not closely related to the offense articulated by the officer at the time of the arrest
There is no requirement for the offense for which you being held to be “closely related” to the offense for which you were arrested
There is a probable cause requirement for arrests.
As long as there is probable cause for the reason D is being held, then the arrest is lawful.
The Court also says this result is good public policy
If the “closely related” rule applied, then police would never tell people why they were being arrested

The Warrant Clause: Probable cause

Probable Cause, Specificity and Reasonableness

Warren, Zurcher, and Andresenseem to give police significant leeway
Warren…abolishes “mere evidence” rule
Zurcher…abolishes distinction between suspects and third parties
The critical elements in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.”
Also, technology seems to expand this leeway considering that given certain CSI techniques, “evidence” can be found almost anywhere
Andresen…evidence of crimes which relate to or are relevant to proving the crime under which a warrant is issued may be validly seized under the warrant.
Catch-all phrase in warrant deemed okay
General warrants deemed okay

Executing the warrant

The knock and announce requirement
the announcement rule is not a rigid constitutional requirement, but rather a component of the 4th ‘s reasonableness inquiry (Wilson)
“Refused admittance”
an officer can break open premises if he has announced his authority and purpose and is refused admittance
Exceptions to the notice rule
No “breaking”
Emergency circumstances (Richards)
No-knock warrants
No-knock entries and destruction of property
Exigent circumstances after knocking
Exigent circumstances can allow a police to break a door after knocking
Does the violation of the knock and announce requirement justify exclusion of evidence?
In Hudson, the SC held that a violation of the knock and announce requirement does not justify exclusion of evidence found in the subsequent search of the premises

The Screening Magistrate

Legal training

Shadwick: issuers of warrants do not need legal training
the issuer must only be neutral and detached and competent enough so as the common sense to determine probable cause

To Apply or Not Apply the Warrant Clause

Exceptions to the warrant requirement

(1) Arrests

Officials may make valid arrests based on probable cause without a warrant. (Watson)
Arrest warrants generally are required only in the absence of hot pursuit and when the arrest is to be made in the suspect’s home. Warrantless arrests, therefore, are the rule rather than the exception.

Note on the use of excessive force in making an arrest
Garner: SC held that under the 4th, deadly force may not be used to prevent the escape of a felon unless it is necessary to prevent the escape AND the officer has probable cause to believe that the suspect posses a significant threat of causing death or serious physical injury to the officer or others.
Use these factors for deadly force analysis
Graham (after Garner): all claims of excessive force in the making of an arrest (whether deadly or not) are to be governed by 4th standards of reasonableness.
Use these factors for non-deadly force analysis
Relevant factors:
Severity of the crime at issue, whether the suspect possesses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight
High-speed chases: (Scott)
SC held a law enforcement official can, consistent with the 4th, attempt to stop a fleeing motorist from continuing a public-endangering flight by ramming them motorist’s car from behind
Consider number of lives put at risk by D and their relative culpability
A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the 4th, even when it places the fleeing motorist at the risk of serious harm.”
Remember: 4th amendment does not require someone to take the best possible measure in using force, it requires only that the police act reasonably
For an warrantless arrest, states must provide a judicial hearing on probable cause within 48 hours of an arrest. (McLaughlin).
Balancing test…trying to determine what’s reasonable
Government interests
Public safety
Individual interests
Not been held without a warrant or probable cause
Courts have found that evidence can only be excluded if it was obtained as a result of an unreasonable detention. Thus, exclusion is not required if the magistrate would have found probable cause for the detention even if the hearing had been promptly conducted.
And exclusion would not be required if the evidence was obtained outside the context of an unreasonably lengthy detention.
Arrests in the home (as opposed to in public, where Watson applies)
In Payton, SC held that the exception to the warrant requirement for public arrests did not extend to arrests in the home
Arrests in the home of a third party
Steagald: SC concluded that a search warrant must be obtained to look for a suspect in the home of a third party, absent exigent circumstances or consent.
Again, the difference between an arrest warrant and a search warrant in this context is that the arrest warrant only requires the magistrate’s determination that there is probable cause to arrest a person it is not specific to location. A search warrant would require a magistrate to determine that there is probable cause to believe that the suspect is location in the home of third party.
If the requirement was only an arrest warrant, police would be able to go anywhere they please in order to arrest a given suspect

(2) Stop and Frisk

Terry
Police can stop someone when there is reasonable suspicion that criminal activity is afoot, and they can frisk the person they stopped when they have reasonable suspicion that the person they stopped is armed and dangerous
The sole justification of the frisk is to protect the police officer and others around
Officer safety v. individual rights balancing test
To be asked to get out of the car is a de minimis intrusion once you have already been stopped
It is debatable whether officers are safer when the apprehended get out of the car as opposed to when they stay in the car
2 reasons Terry is important
(1) emergence of the reasonableness test
(2) Terry governs many of the unpleasant interactions that people have with police
Reasonable cause for a stop and frisk can be based on information supplied by another person, rather than just personal observation (Williams)
The SC held that officers in the course of a legal stop of an automobile have an automatic right under Terry to order the driver out of the vehicle (Mimms)
Summers: SC held that police officers with a search warrant for a home can require occupants of the premises, even if leaving when the police arrive, to remain while the search warrant is executed
When does a seizure occur? The line between “stop” and “encounter”
Two kinds of seizures we have discussed?
Arrests…Watson
Stops…Terry
The Mendenhall “Free to Leave” test
DEFINITION OF A SEIZURE:A person has been “seized” within the meaning of the 4th only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.
Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.
Applying the “Free to Leave” test: (Royer)
Police have the right to question WITHOUT reasonable suspicion
This is an ENCOUNTER, not a stop
because people like the police, they can use encounters to gather information without reasonable suspicion
they cannot use their power to coerce without reasonable suspicion
Factory sweeps: INS v. Delgado
SC held that INS officer did not seize workers when they conducted factory surveys in search of illegal aliens
SC thought reasonable people here would have felt free to leave
Police questioning, in and of itself, is not likely to be determined a seizure
Can failure to cooperate lead to reasonable suspicion to justify a stop?
it is true that the Court in Royer stated that the failure to cooperate in a consensual encounter cannot be treated as suspicious conduct that would justify a Terry stop
Street encounters…Cardoza (1st Cir.)
The court also held that the test for a Terry stop is not really whether a reasonable person would feel free to leave, but rather whether the police officer was acting coercively
This description of the test seems more realistic, and appear to track the case law
Bus sweeps
Bostick
O’Connor’s test
If a reasonable person would feel free to decline the encounter than it is not a seizure
Mendenhall is still good, just modified/supplemented
Drayton
Law enforcement officers do not violate the Fourth Amendment prohibition of unreasonable searches merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen.
Court does not want to produce a rule saying that police have to announce peoples’ right to refuse questioning and their freedom to leave as doing so would defeat the purpose of questioning
The suspect who does not submit: (Hodari D.)
Where the officer engages in a non-physical show of authority, it must be such that a reasonable person would not feel free to leave, and the citizen must actually submit…seizure
Scalia looks at common law and distinguishes between seizures with physical shows of authority and those with non-physical shows of authority
Physical restraint….you have been seized
Non-physical restraint…not seized until you submit

Reasonable suspicion

Source of information
Anonymous Tips: (White)
an anonymous informant’s tip that was “significantly corroborated” by a police officer’s investigation provided reasonable suspicion for a stop.
Reasonable suspicion is less stringent than probable cause
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.
Reasonable suspicion is considered within the totality of the circumstances
Anonymous tips concerning gun possession (J.L.)
An anonymous tip that a person carrying a gun is not sufficient to justify a police officer’s stop and frisk of that person.
While an accurate description of a subject’s readily observable location and appearance is reliable in helping the police to identify the person the tipster means to accuse, it does not show that the tipster has knowledge of concealed criminal activity.