OUTLINE

SEARCHES

  1. US v. Jones (2012)
  2. GPS tracking device on underside of Jeep held to be a SEARCH (needed a warrant)
  3. 4th Am reflects close connection to property, which is still a valid rational alongside the Katz R.E.P. test
  4. Concurrence – new tech alters REP, longer use offends this expectation
  5. Slightly amended by Jardines “physical invasion” – now the standard
  6. US v. Miller – 4th Am does not protect info willfully revealed to a 3d party
  7. Katz v. US (1967)
  8. Listening to convo was 4th Am violation
  9. Created objective test – reasonable expectation of privacy that society is prep’d to recognize. Consider:
  10. Likelihood of exposure – what do you expect others to see/hear
  11. Policy balancing
  12. Rights to access (institutional)
  13. How much detail is being observed/found
  14. Changing tech and circumstances impact R.E.P.

DEFINING THE TEST

  1. Smith v. Maryland (1979)
  2. Monitoring numbers dialed on home phone through pen register at phone company
  3. No REP b/c number dialed are voluntarily conveyed to 3d parties – diff from content
  4. Also b/c general awareness of common purpose of ability to track #s - advertised that ppl should contact police to track and stop harassing calls.
  5. US v. Dunn (1987) – CURTILAGE
  6. Barn is not curtilage of the house, and thus receives no 4th Am protection; once at vantage point not req’d to shield eyes
  7. Curtilage extends to area immed surrounding home that harbor intimate activity assoc w/ sanctity of home and private life, but not open fields. Factors
  8. Proximity of area to home
  9. (subst dist btwn home and barn and not same fencing)
  10. Nature of uses
  11. (not being used for intimate activities assoc w/ the home)
  12. Steps taken to protect from observation
  13. (Did little to protect from observation – dinky fence for cows)
  14. California v. Greenwood (1988) – WILLFULLY CONVEYED TO 3d PARTY
  15. Going through trash not a 4th Am search b/c not an expectation society prep’d to accept
  16. Rationale applies to person’s physical characteristics
  17. US v. Kyllo – use of thermal imaging a search b/c could see what was going on inside of house, both illegal AND legal activities.
  18. Illinois v. Caballes (2005)
  19. Use of drug dog during routine stop not a search (does not change char of stop)
  20. Discloses only presence/absence of items – no R.E.P. in contraband
  21. Florida v. Jardines (2013)
  22. Taking drug dog to front porch was a trespass, making the search illegal
  23. Violated curtilage – exceeded implied license to approach house (and knock)
  24. “Physical Intrusion” is now the standard.
  1. Models of 4th Am Protection – usually mix and match; lower courts apply by analogy
  2. Probabilistic Model – chance sensible person predicts he would maintain privacy
  3. Cases: Bond (luggage squeeze): Olson (overnight guest); Ciraolo (1000ft aerial observation)
  4. Reject: Caballes (drug dog at traffic stop); Misplaced Confidence cases
  5. Private Facts – Focus on what info gov’t collects and considers if it is private
  6. Cases: Jacobsen (field test can only reveal crime or not)
  7. Positive Law – does some law prohibit/restrict gov’t action
  8. Cases: Rakas (no property right as passenger); FL v. Riley (FAA regs)
  9. Reject: Oliver v. US (open field doctrine still a trespass)
  10. Policy Model – should particular practice be regulated
  11. Cases: Katz, Kyllo, Hudson v. Palmer (prison cells)

APPLICATIONS OF THE TEST

  1. Florida v. Riley (1989) – viewing greenhouse from 400ft in air not a violation (assuming FAA regs were followed) b/c anyone could have observed it from that height and did not interfere w/ normal use of property (maybe diff outcome if below 400ft)
  2. See v. City of Seattle – business and commercial premises covered by the 4th Am
  3. Hudson v. Palmer – detention facilities not covered by 4th Am – inherent loss of freedom and privacy
  4. Bond v. US – squeezing bag a search: expected bag might be moved, but not expected it would be felt in an exploratory manner
  5. Enhancing the senses – not a search if detected with natural senses or means of enhancement commonly available.
  6. Private areas in public places MAY be covered (see Katz)
  7. Vehicles
  8. Cardwell v. Lewis – exam of tires/paint in public lot NOT infringe R.E.P.
  9. NY v. Class – viewing obscured VIN not a search; reaching in car was.
  10. Jones – physical invasion a trespss
  11. Hypos
  12. Driving to mosques w/ Geiger counter
  13. USPS photo’s every package and stores data – is mass aggregation and data mining a search?
  14. Cell phones – usually need court order for intercepting communications
  15. Hard drives
  16. Reasonableness Req – many files, mult devices at IP address, mislabeled files
  17. Personal v. work computer
  18. Plain view doctrine
  19. Deleted folders/files (has been held similar to trash in Greenwood v. CA)
  20. Ability for rummaging

SEIZURES

  1. Brendlin v. Cali (2007) – Seizure of People
  2. “Seized” when by means of physical force or show of authority, terminates/restricts freedom of movement.
  3. Req’s actual submission, but not physical restraint
  4. What counts as submission depends on activity before show of authority
  5. Totality of Circumstances test
  6. Traffic stop also subjects passenger to Seizure b/c norm not feel free to leave
  7. Cali v. Hodari – pursuit of a fleeing person is not a seizure b/c no physical force or submission to authority.
  8. Arizona v. Hicks – Seizure of Property
  9. Meaningful interference in possessory interest in property
  10. Act of copying serial numbers not a seizure

PROBABLE CAUSE

  1. Req’s/Definition
  2. Search – substantial probability certain items fruit, instrumentalities, or evidence, contraband
  3. Arrest – substantial probability crime committed and person committed it
  4. Eval of what is now probable – PC may be “stale” or “premature” – US v. Grubbs
  5. Scope of PC defined by definition of and scope of the law/crime being investigated
  6. Establishing Probable Cause
  7. Spinelli v. US (1969) – Overruled by Gates
  8. 2 prong Aguilar Test to determ if informant’s statements establish PC
  9. Veracity – enough facts set forth to independently support statement
  10. Informant shown to otherwise be credible.
  11. Illinois v. Gates (1983) – TOTALITY OF CIRCUMSTANCES
  12. Elements of Spinell/Aguilar only relevant considerations, not a separate test
  13. Tip itself inadequate, but corroboration estab sufficient indicia of reliability to constitute reasonable suspicion and thus permit investigative stop
  14. Here, when did PC attach?
  15. Got letter, verify Gates’ existence/address, flies to FL, goes to hotel, starts to drive north, arrives home (attaches btwn last 2)
  16. Standard used for search and arrest warrants, with or without informant
  17. Florida v. Harris (2013)
  18. Use “common sense judgment” to determine if dog sniff suffic to estab PC; not req’d to submit exhaustive evidence of dog’s credentials
  19. Defendant needs opportunity to challenge evidenc/particulars of search.
  20. Massachusetts v. Upton (1984) – no one piece of evidence is conclusive
  21. PC still req’s for warrantless search/seizure (Wong Sun v. US) – after the fact hearing
  22. Maryland v. Pringle (2013) – PARTICULARIZED SUSPICION
  23. PC deals w/ probabilities by looking at totality of circumstances
  24. Must be particularized to person being searched/seized.
  25. Here, entirely reasonable all 3 had knowledge of and control over the drugs – could be one person or all 3.
  26. Disting from Ybarra – in car, likely to have common enterprise
  27. Disting from DiRe–here, not singled out/admit ownership until after arrest

SEARCH WARRANT

  1. If have search warrant, can only be challenged if evidence supporting PC wholly lacking or warrant obtained via fraud
  2. Conditional anticipatory warrant (US v. Grubbs). Req’s:
  3. If triggering event occurs, fair probability contraband will be there
  4. Prob cause triggering event will occur
  1. Requirements
  2. Neutral and Detached Magistrate
  3. Shadwick v. City of Tampa – 2 req’s for auth to issue: 1) neutral and detached; 2) capable of determ PC exists (eg – clerk)
  4. US v. Master – state judge lacked auth to issue warrant executed in diff cnty
  5. US v. Davis – improper to go to 2d judge after being denied by first.
  6. Particular Description of Place to be Searched
  7. Okay if officer can “w/ reasonable effort ascertain and ID the place” – good faith exception (reasonable effort)
  8. Necessary level of particularity depends on the place being searched.
  9. State v. Blackburn – no doubt intended door w/ “ECURB” – couldn’t be confused about that, but could be about “#2”
  10. MD v. Garrison (1987) – 3d floor had 2apts; overbreadth understandable given bldg. characteristics
  11. Particular Description of Things to be Searched
  12. More particularity req’d than “place” – orig left not discretion to officer
  13. General Principle – prevent vague/exploratory searches – good faith exception (facially deficient)
  14. US v. Bradley (11th Cir) – pervasive fraud doctrine allows all records search warrant where there is a demonstrated “pattern of illegal conduct”
  15. Reliance on Affidavit
  16. Groh v. Ramirez – description needs to be in warrant; reason – so suspect knows limits of search as well
  17. Situations that may justify reliance on elaborating language – few items on list of many omitted; mis-described few of several items; technical mistake
  18. Time of Execution
  19. Most juris have time limit on execution (fed – 10days)
  20. State v. Miller – violated 10d period, but PC not dissipated, so no suppression
  21. Most juris allow execution only during daytime – interp broadly (eg: 10pm)
  22. Gooding v. US – no special showing req’d for nighttime narcotics search
  1. Gaining Entry Into the Home to Search
  2. Wilson v. Arkansas – generally have to knock and announce, unless have exigency
  3. Richard v. Wilson – proving exigency is not a high showing
  4. US v. Banks – time req’d for wait varies, based on totality of circum (here, 15-20sec)
  5. Hudson v. Michigan – no suppression remedy if wait time violated
  6. People on Premises During Search
  7. To search, need particularized suspicion; mere propinquity does not estab PC (Ybarra)
  8. Detention of Persons – relevant interests: officer safety, orderly completion of search, concern for flight, destruction of evidence
  9. Michigan v. Summers – wide authority to detain ppl during search
  10. Bailey v. US – person must be in immed vicinity of search
  11. Muehler v. Mena – handcuffing for mult hours reasonable b/c gov’t interest outweighed marginal intrusion.
  12. Limits to Detention
  13. If causes pain/discomfort, need to alter
  14. Remove restraint if reasonably apparent justification no longer exists
  15. Intensity and Duration of Search
  16. Can only look in places where items particularly described might be
  17. Once items found, search must cease
  18. Preference for Warrants b/c
  19. After-fact-bias in PC determination (“we found it so clearly there’s PC”)
  20. Lack of credible opponent leads to false testimony by police about circumstances
  1. Plain View Exception – Horton v. California
  2. “Not a search b/c it is a seizure of something already discovered”
  3. Inadvertence not req’d for plain view seizure – intent doesn’t matter
  4. Req’d Elements
  5. 4th Am not violated in leading police to item – intrusion lawful
  6. Lawful right of access to object itself – w/in permissible scope of intrusion
  7. Incrim character of item “immediately apparent” – a hunch is not sufficient

ARRESTS

  1. Warrantless arrest is the rule, and obtaining warrant is the exception.
  2. Only time warrant actually req’d is for in-home arrest
  3. If residence of 3d party, need separate search warrant to enter that premises – need PC to believe that suspect is there.
  4. Warrantless Arrest
  5. US v. Watson (1976) – no warrant req’d when arrest made in public and there is PC
  6. Gerstein v. Pugh – need “prompt” review of PC to have extended restraing
  7. McLaughlin – “prompt” is usually 48hr
  8. Also may violate promptness if delay was unreasonable – for purpose of gathering more info, motivated by ill-will, delay for dealy’s sake.
  9. Powell v. Nevada – violation of time does not necessarily mean D must be set free
  10. Atwater v. City of Lago Vista (2001) – arrest can be for any offense; no misdemeanor/felony distinction as long as it is “arrestible offense”
  11. Probable Cause Requirement for Warrantless Arrest
  12. Rosenbaum v. Washoe County – PC must be for a particular offense
  13. Devenpeck v. Alford – arresting officer’s state of mind irrelevant in determ of PC
  14. Arrest of Material Witness – Bacon v. US
  15. Permissible only on need-for-custody showing; based on PC, tested by:
  16. Testimony that person is material – can be based on statement of official
  17. May become impractical to secure presence by subpoena
  18. Excessive Force
  19. Graham v. Connor – objective balancing, reasonableness standard
  1. SEARCH INCIDENT TO ARREST
  2. US v. Robinson (1973) – pat down after arrest valid; found crumbled cig pack w/ heroin
  3. Policy – Need to disarm and need for add’l evidence
  4. Even if unlikely to have weapon, danger to officer during extended detainment is greater than that of relatively fleeting contact of Terry
  5. Gustafson v. FL – doesn’t matter whether may arrest or have to arrest
  1. Limited by Knowles v. Iowa
  2. If could arrest, but do not arrest then search NOT ALLOWED
  3. Threat to officer very low
  4. Need for add’l evidence doesn’t exist here (speeding violation)
  5. Search Without Prior Seizure – Cupp v. Murphy
  6. Voluntarily appeared for questioning; blood under nails, took scraping
  7. Search valid b/c of exigent circumstances – highly fleeting evidence
  1. Prison and More Intrusive Searches
  2. Full search of person/effects usually made at detention centers – upheld on 2 basis: delayed Robinson search incident to arrest; inventory search.
  3. Florence v. Board of Chase Freeholders – can search anyone brought to prison, even if wrongfully arrested
  4. US v. Edwards – once arrested, effects in possession at place of arrest may be lawfully searched w/o warrant, even if substantial time has passed
  5. Strip Search – circuit split:
  6. Powell v. Barrett (11th Cir) – allowed for all inmates
  7. Jimeney v. Wood (5th Cir) – minor offense req’s reasonable suspicion of weapons or contrabadn
  8. Bodily Intrusions
  9. Missouri v. McNeely – no bright line for when blood draw allowed
  10. Schmerber v. Cali – need warrant for intrusion of body, unless have emergency (rule for normal intrustions)
  11. Winston v. Lee – reasonableness of intrusion a case-by-case analysis (rule for major intrusion – remove bullet from body)
  12. Maryland v. King (2013)
  13. DNA sampling is a lawful search – recognized social benefits and statute is limited to prevent abuses (violent crimes, only if arraigned, only for police purposes)
  14. If arrested, proper ID plays a crucial role – a more advanced form of fingerprinting
  15. Hypo – search of cell phone after arrest
  16. US v. Finley (5th Cir) – call records/texts found during search admissible
  17. State v. Smith (Ohio) – high expectation of privacy in cell phone contents

ARREST IN HOME AND SEARCH OF PREMISES

  1. Roadmap
  2. Entry into home to arrest
  3. Payton – general rule – need warrant
  4. KY v. King – exigent circumstances
  5. Search once in home
  6. If warrant, see warrant section above
  7. Incident to Arrest – Chimel
  8. Protective Sweep – Buie
  9. ENTERING HOME
  10. US v. Payton (1980)
  11. Combo 2 cases
  12. PC for murder, knock, hear music, go in – not there but find bullets
  13. Son opens door, saw father on bed, enter/arrest, search door before allowing him to dress, found drugs
  14. Entry into home to arrest is a Const Violation – PC not good enough b/c of special importance placed on homes.
  15. Richards v. Wisconsin – same limits as entry to search (eg: need to announce)
  16. Vale v. Louisiana – arrest on porch, search home NOT VALID – arrest on street does not create exigency to enter home (no curtilage doctrine for seizure)
  17. US v. Santana – can attempt warrantless arrest if in doorway
  18. Calling person out of their home violates Payton. – inside v. outside a tricky line
  19. EXIGENT CIRCUMSTANCES
  20. Objectively reasonable evaluation, based on totality of circumstances.
  21. Lower courts have held there needs to be a belief person there (SCT has not)
  22. To enter under exigent circumstances, most courts require PC + Exigent Circum
  23. Relevant Factors:
  24. Degree of urgency involved
  25. Reasonable belief suspect armed
  26. Clear showing (more than PC) suspect committed crime
  27. Strong belief suspect on premises
  28. Entry made peaceably
  29. Time of Entry
  30. Brigham City v. Stewart – state of mind doesn’t matter (entered to stop fight)
  31. Kentucky v. King (2011)
  32. Police created exigency not a valid search (knocked, heard noises)
  33. Rule – Exigency applies where entry not gained by actual/threatened 4th Am violation
  34. Knock-and-announce not a police created exigency
  35. Does no more than ordinary citizen could do.
  36. Occupants didn’t have to open door – could have relied on 4th Am and not opened
  37. On Remand – no police-created exigency, but no exigency at all: standard noises
  38. Mincey v. AZ – seriousness of offense does not create exigency (no homicide scene exigency) – probably an exigency when first happened, but prob not for re-entry
  39. Welsh v. Wisconsin – arrest in home after drunk driving tip not valid – posed little remaining threat (reason for exigency dissipated)
  40. Hot Pursuit Rule
  41. Warden v. Hayden – police not req’d to delay investigation when to do so would gravely endanger others.
  42. Preservation of Evidence
  43. US v. Grummel - proper to search premises to extent necessary to preserve evidence while waiting on warrant
  44. US v. Rubin – must have belief evidence present
  45. Denial of consent is not an exigent circumstance.
  46. SEARCH OF HOME AFTER ARREST
  47. Steagold v. US
  48. Properly entered home w/ warrant to arrest, then “plain view” drugs
  49. Need separate warrant to search 3d party’s home.
  50. Segura v. US –PC to enter house, securing premises in good faith not 4th Am violation
  51. Illinois v. McArthur
  52. Wouldn’t let resident back in w/o officer present
  53. Restriction reasonable b/c believe house had contraband and prevent destruction of that evidence.
  54. State v. Hendrix – can use subterfuge to get suspect to remove evidence to place warrantless search allowed on showing of PC (eg: car)
  55. Chimel v. California – SEARCH INCIDENT TO ARREST
  56. Warrantless search of entire house not justified
  57. Rule – can search area w/in immediate control of where arrestee could attain weapons or destroy evidence
  58. Hufnagel – irrelevant whether arrestee can physically reach place being searched
  59. Courts generally allow a 4 to 6 foot radius – doesn’t consider size of arrestee or whether they are restrained
  60. Maryland v. Buie – PROTECTIVE SWEEP
  61. 2 rules
  62. Cursory inspection of areas near arrest where people might be located
  63. Extensive limits, but still based in reasonableness (under mattress)
  64. If reasonable suspicion someone else around, may search other rooms
  65. Must be based on articulable facts and rational inferences
  66. Giacalone v. Lucas – can look in dresser drawer arrestee about to open
  67. Plain View Exception applies to entire in home search scenario

VEHICLES AND CONTAINERS– WARRANT EXCEPTIONS

  1. Roadmap
  2. Whren – stop allowed for any traffic violation (allows pretext – racist issues an Equal Protection issue, not 4th Am)
  3. Atwater – arrest of driver/passenger for any (arrestable) offense
  4. Knowles v. Iowa – if can arrest, but don’t then not able to search
  5. Carney – auto exception allows search of car w/o warrant if have PC
  6. Acevedo – no container/vehicle distinction during search
  7. Gant – search incident to arrest
  8. FL v. Wells – inventory search, pretext not allowed
  9. Traffic Stops and Arrests
  10. US v. Whren (1996) – can stop auto when have reasonable suspicion traffic violation or other crime is occurring (same standard as Terry)
  11. Motive never used to invalidate a search.
  12. Takes very little to uphold traffic stop (Robinson – improper lane change; Lee – straddled center line for 1 second)
  13. US v. Watson – can arrest for violation if PC it occurred
  14. Robinson – allows search (of person) incident to arrest
  15. Virginia v. Moore – even if statute doesn’t allow arrest, not a 4th Am violation (assuming still have reasonable suspicion to pull over)
  1. Search of Vehicle
  2. California v. Carney – AUTO EXCEPTION
  3. Rationale for exception
  4. Ready mobility justifies lesser degree of protection – focus on potential for movement, not likelihood
  5. Lesser expectation of privacy – can easily see passenger area; pervasive regulations
  6. Is RV a vehicle? – YES: licensed to operate as a vehicle, and positioned such that reasonable observer would believe it is operating as a vehicle
  7. “Objectively mobile” test
  8. Applies to any car, does not depend on if crime is actually committed.
  9. Chambers v. Maroney – PC of warrantless search req’d to ascertain whether search properly lmt’d in scope/intensity.
  10. Moving truck w/ home possessions gets auto exception.
  11. Arizona v. Gant – INCIDENT TO ARREST
  12. Can search car when
  13. Arrestee unsecured and w/in reaching distance; OR
  14. Reasonable to believe evidence of crime might be found in car
  15. Circumstances eval’d at time of search
  16. Holding – search not allowed; was handcuffed and in squad car for driving with a suspended license
  17. If have separate PC for vehicle/container – see Acevedo/Carney
  18. Chamberlain – driving under restraint offense necessarily req’s proof of awareness, making documentary evidence potential object of search (allows search of car)
  19. Florida v. Wells – INVENTORY SEARCH
  20. Req’s for inventory search:
  21. Need standardized criteria or established routine (through statute/admin rules)
  22. If follow guidelines, subjective intent of officer doesn’t matter
  23. Discretion allowed only if exercised according to standard criteria and based on something more than suspicion
  24. Holding – did not have sufficient regulations
  25. Containers
  26. California v. Acevedo (1991) – VEHICLE/CONTAINER DISTINCTION
  27. No distinction btwn PC for car and PC for package in the car
  28. Determinant is if it breaks “plane of the car” – in car no warrant req’d
  29. Limited only by reasonableness of where items of search may be hidden
  30. Wyoming v. Houghton (1991) – no ownership distinction
  31. If have PC for entire vehicle, no need to show individualized suspicion to search belongings of each occupant
  32. Passenger, as well as driver, have decreased expectation of privacy.
  33. Holding – doesn’t matter that officer should have known purse belonged to passenger, and not to driver.
  34. Illinois v. Andreas (1983)
  35. Privacy interest in container diminishes after container opened by police
  36. Resealing container does not restore privacy
  37. Interruption in surveillance re-estab privacy interest when there is a “subst. likelihood contents of container have been changed” based on a workable, reasonable, and objective standard
  38. State v. Brereton (WI 2013) – install of GPS (as in Jones) is disting from typical search under auto exception b/c concern is not w/ contents of the vehicle.
  39. Some containers – by their very nature – cannot hold a R.E.P. – eg: gun case
  40. Hypo – does Acevedo apply to all types of containers? Computer hard drive? – issue raised but not resolved by US v. Burgess.

STOP AND FRISK (WARRANT EXCEPTION)