A. Investigation of Private Parties by Govt

Vikas Didwania Winter 2009

OVERVIEW

I. Themes a. Investigation of private parties by govt i. Each has various interests – privacy, property ii. Actions by either can enhance or threaten those interests iii. Govt monopoly on force / enforcement: necessary but dangerous 1. Goal of crim pro: limit the harms w/o severely limiting the good 2. Method of crim pro: due process – must treat people fairly, even those state wishes to punish; must not “shock the conscience” (p.79) b. Courts are the intermediary in resolving these conflicts i. Substantive const doctrine ii. Institutional and remedial choices 1. Once settle on some conceptual, const norm, have to enforce it 2. What institution or remedy best enforces the norm iii. But courts are not radicals and only make incremental changes, often following social changes. 1. Makes them connected to political process 2. But that means will not instigate change and will not make large changes 3. But can also make the law a complete mess a. E.g. have both damage remedies and the Rule for 4A violations, but neither works that well. No clear understanding of why we should have both and together create a mess c. Big question: is this fair? 5A, 6A, etc. all get at due process and fundamental fairness II. History a. Criminal law enforcement became professionalized. Created clearer divisions between public and private actors i. Const norms came first; then the professionalization b. Much enforcement by state police but federal constraints i. Supreme judicial review ii. § 1983 iii. 14A huge b/c until then BoR applied only to feds, which did very little criminal enforcement III. General outline: look first at the remedies and then the norms (subst const doctrine) IV. Text: a. 4A: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized b. 5A: No person shall be…; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;… c. 6A: In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defense

SEARCH AND SEIZURE

I. Remedies a. Have 4A violation. Lots of possible remedies. i. Note that 4A governs only government action, so it does not apply to private police. They are governed by tort law and possibly criminal prosecution: assault, trespass, and false imprisonment 1. Citizen arrests: a. Misdemeanors; only those committed in their presence b. Felonies: PC to believe the arrestee has committed, as long as the felony in fact has been committed by someone 2. Demand for private policing suggests gaps in police conduct 1 Vikas Didwania Winter 2009

a. Some is keeping poor / minorities out of certain areas b. Also preserving public order c. But some of it is result of crim pro: police shifted from preventative to reactive policing, b/c once crime happened, then easier to develop PC. Before that, too many Const protections. d. Cops have been stripped of their order-maintaining ability. Courts struck down many of these statutes for void for vagueness. 3. In some sense, opposites: private police go where the money is, while cops go where the crime is b. Exclusionary rule: suppress incriminating evidence that police seized in violation of 4A i. Originally established in Weeks, against violations of 4A by feds ii. Purpose: to DETER law enforcement 1. Also: judicial integrity a. But note that can reduce integrity by excluding incriminating evidence. 2. But now deterrence is the SOLE defense of the rule. See Leon (p.683).

Mapp: SCT, 1961, p.336 Background: Convicted of possessing obscene books in her home Case: Δ refused cops entrance w/o a warrant after consulting attorney. Cops entered anyway; they were looking for a bombing suspect and his gambling paraphernalia. While searching, found the obscene materials. Ruling: Court assumes Δ’s 4A violated (and that it applies to states). Holds remedy for violation must be suppression of the incriminating evidence. Black (concurrence): text of 4A doesn’t say anything about Rule. But consider 4A along with 5A self- incrimination, and that’s compelling case for Rule. Seizing his papers and using against him is akin to compelling him to be a witness against himself. Douglas (concurrence): W/o Rule, only available remedy is trespass action against cops. That’s illusory.

iii. Court explicitly overrules Wolf, which had held exclusionary rule did not apply to states 1. Wolf incorporated 4A to states through 14A. Note then that the violation was actually of 14A, since states, but about the norms of 4A being violated 2. But held that Rule not fundamental enough a part of 4A to extend to states 3. Noted that many states did not have the Rule iv. Court focuses on fact that since Wolf, when 2/3 of states opposed Rule, more than half have changed and adopted Rule 1. But here freezing that trend, maybe it would’ve reversed. Constitutionalizing it. 2. Plus Const doesn’t say to look at polls 3. AS: wise to look at actual practice / other actors. Court doesn’t know anything. v. In Wolf, Court banking that other mechanisms of protecting 4A rights, but none seem to have worked out 1. So w/o Rule, just some words on paper 2. 4A itself mentions no remedies a. AS: argue that since the proper remedy under 5A for compelled testimony is exclusion, maybe same for 4A violations i. Counter: expressio unius, framers knew when they wanted an exclusionary remedy vi. Also, since Wolf, breadth of the Rule has been expanded, which suggests its importance and acceptance vii. Comparison to feds: 1. Odd that feds can’t use evidence but state prosecutors across the street can a. Weird loophole that feds could just go across the street and hand the evidence to the state to use i. But note that Court had already solved this problem in other ways. See Elkins (1960, p.345) (feds could not use evidence

2 Vikas Didwania Winter 2009

illegally obtained by state cops); Rea (1956, p.345) (feds couldn’t give state fruits of illegal searches) b. Fairness / consistency: 4A applies to all yet one can use the evidence illegally seized 2. Me: shows that the Rule is workable since feds have been subject to it viii. Pro / con: 1. Con: criminal goes free because constable blundered a. Fetters law enforcement i. But hasn’t happened for (1) feds; and (2) cops in states that already have the Rule b. Stats show not too many convictions lost due to Rule (debatable) 2. Pros: a. Judicial integrity. Not tainting the courtroom / judicial process b. Should not reward govt for breaking its own laws; that’ll breed contempt for the law ix. Takeaway: deterrence, judicial integrity, state trends. Give some effect to 4A. x. Harlan (dissenting): 1. While there is trend, half of states still don’t have Rule. Disparity suggests that states differ on benefits of Rule. a. Federalism, states have different circumstances, experimentation 2. Not a 4A case, but a 14A DPC case. No power under 14A to mould state remedies a. Only thing 14A demands is that prosecution be fair. Use of such evidence doesn’t make the trial itself unfair 3. Bottom line: Court doesn’t have power to impose this rule on states xi. Lots of possible criticisms: 1. Too novel: no legal basis 2. Too weak: does not help the innocent 3. Too strong: lets murders go free 4. Too distracting: shifts resources away from determining guilt / innocence toward fighting about what should be let in 5. Too inflexible: binary, either in or out 6. Wrong: assumes police care about outcomes a. Maybe just care about harassing people and so on. Or just arresting them. That may still reduce crime. Most LEO conduct is NOT aimed at future prosecution. b. Even where looking for a prosecution, often might as well search. Worst will be a return to the status quo, where they couldn’t have searched (due to 4A) and wouldn’t have recovered the evidence anyway 7. Bad side effects: cops may lie (e.g. saying they had PC for search), judges may fudge or look the other way 8. Other viable alternatives c. Damages i. State tort claims (e.g. false arrests, trespass) ii. State constitutional claims 1. Note that with state claims, maybe don’t trust state courts to enforce fed const rights as vigorously iii. § 1983 claims – class actions, recovery of atty fees iv. For feds: Bivens (but no atty fees), FTCA v. Benefits: 1. Allows relief for the innocent 2. Avoids letting guilty go free. Still convicted but then can file damages suit. Appropriately blames all wrongdoers: cops and criminal. 3. Still allows enforcement of 4A vi. Obstacles: 3 Vikas Didwania Winter 2009

1. Low damages: e.g. frisk 2. Difficulty in measuring appropriate damages 3. Has costs: a. Too weak – immunity, indemnity, cities are insured, and small fraction of total city budget. All that meaning may not sufficiently deter. i. As to city budget, may vary enforcement of 4A (deterrence) based on whether large or small city b. Too strong – might over-deter, especially compared to the Rule i. Police don’t receive any benefits for each marginal search that’s successful. But if have to pay for each bad search, then will search less often. ii. With Rule, just restitutionary: lose what you gained from search, nothing more iii. E.g. in NYC, cops never arrest. Just issue dispersal orders. 4. Immunities a. Official: qualified i. Balance between preventing over-deterrence (cops should be able to carry out duties) and providing some remedy (for innocent, often only possible remedy for 4A violation) b. Municipality: official policy or custom. See Monell. c. State: sovereign

Creighton: SCT, 1987, p.729 Background: Cops performed warrantless search of Π looking for robbery suspect. Debate over whether had PC and exigent circumstances for the warrantless search (late at night on Veteran’s Day). Π filed Bivens action seeking damages. Case: This was case about the nasty facts—black family, cops beat them all up. Issue: whether a reasonable officer could have believed Δ’s warrantless search would be lawful Ruling: Court holds that qualified immunity bars recovery. Note the oddity of saying that cop reasonably acted unreasonably (in his search). Stevens (dissent): notes the reasonably unreasonable point; also, allows cops to ignore 4A limits; notes that PC requirement is itself an immunity—so counting cop interests twice: if PC, then immune; if no PC, still immune if reasonable. Court isn’t ascribing enough weight to privacy interests.

vii. First: determine whether 4A violation 1. Note that Court reaches Const issue first instead of determining whether “clearly established” in order to develop Const law even w/o availability of remedies. a. Otherwise, would freeze it in its place b. This way can develop Const law w/o worrying about imposing large penalties for past conduct. Otherwise, there’d be ossification and no innovation in Const law i. But note that there must be some remedy; otherwise, there will be no cases for courts in which to innovate viii. Second: even if there was a violation, does QI bar recovery? 1. Rule: immune when conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known a. Me: from standpoint of reasonable person (objective), was there a clear rule? b. This rule is akin to requiring gross neg on part of officer c. “Clearly established” depends on the level of generality. For example, here could easily say that there is a clear rule not to violate the 4A. That’s an end run. d. Court: contours of the right must be sufficiently clear that official would understand what he was doing would violate that right

i. Note that as Court generates more rules, more rights will become clear, allowing more suits. But if generate too many rules, then maybe confusion. ix. NOTE: now up to lower courts to decide QI first or const violation first. See Sauicer (2009). x. Excessive force: in Creighton, even if the search plausibly reasonable, can’t possibly be that the manner (beating everyone up) was reasonable to any (reasonable) officer. 1. See also Saucier (2001, p.735), where Π had argued that a shove constituted excessive force. Rule under 4A is that force must be reasonable under all the circumstances. Π argued that can’t have reasonable unreasonableness, but Court rejected under Creighton. d. Injunctions i. Benefit: no qualified immunity ii. § 14141 & the DOJ 1. Statute prohibits govt authorities from a “pattern or practice” of conduct that deprives person of Const rights. 2. DOJ can sue for equitable relief to eliminate the pattern or practice 3. Example of a consent decree with the LAPD to counter widespread corruption a. Tons of recordkeeping and reforms b. Allows for systemic reform instead of officer by officer

Lyons: SCT, 1983, p.740 Background: Officers, without justification, seized Π and applied chokehold, damaging his larynx. Case: Sued City and cops, seeking a permanent injunction barring the City from using these control holds Ruling: Court holds that Π failed to demonstrate a case or controversy with the City that would justify the injunction. Also noted the federalism concern of fed court running city police department.

iii. Rule: Standing requirement under case or controversy: real and immediate threat of the specified injury to the particular plaintiff seeking injunctive relief 1. He must show that he was likely to suffer future injury from use of chokeholds by the officers. 2. That’s really hard to prove. Low likelihood. 3. He would have to show that likely to get stopped again and that the police routinely apply such chokeholds (or that there is a City policy to do so). 4. No evidence here that: chokeholds are applied by cops to ever citizen who is stopped or arrested regardless of the conduct of the person stopped iv. But he can pursue damages v. And state courts need not follow this standard for injunctions; can set their own remedial measures e. Criminal prosecution i. Most prosecutions are against officers charged with excessive use of physical force—for willful rights violations 1. See, e.g., Rodney King beatings (p.745) ii. But serve as patchy deterrent: 1. Charges are made after the fact 2. Burden of proof extremely high 3. Almost up to chance which cases can be proved 4. Only sets boundaries of what is allowed. Doesn’t tell us what is good police work iii. Evidence shows that may deter at the upper margins f. Admin and political remedies i. These are about deterring police misconduct, not compensating victims ii. Must depend on administrators to provide day to day guidance to cops 1. But recognition that have failed to identify and punish chronic misconduct; to reward good conduct

2. Employer-based sanctions. Inherently untrustworthy? iii. Politics: double-edge sword 1. Do not want political oversight for fear of politics corrupting police 2. Do want political oversight to hold police accountable to the public, air out their dirty laundry 3. Thus, resulted in citizen review boards, where citizens and police together review complaints a. Some hope that these boards will move beyond focusing on individual officers to broader, systemic relief b. Identify at-risk officers ahead of time, identify at gaps and oversights, such as in training or widespread noncompliance with a policy c. They’re independent but also least knowledgeable about police issues II. 4A Violations a. Now back to violations of 4A Const norms. b. Note that massive amount of police conduct does NOT implicate the 4A in any way c. When does 4A apply? i. To whom—“the people”

Verdugo-Urquidez: SCT, 1990, p.409 Background: Δ was detained in US but wanted more info. So US agents search his Mexican home, no W either from US or Mexican officials. Δ argues his home is protected by 4A. Case: Issue: whether 4A applies to search / seizure by US agents of property owned by nonresident alien (citizen / resident of Mexico) and located in a foreign country. Ruling: Does not apply. Kennedy, being the 5th vote, seems to the holding: no restrictions based on the people but all searches within the US count.

1. 3 options: a. Applies only to US citizens b. Applies only to searches within the US c. Follows govt action. Court definitely didn’t use this i. Policy worries about having 4A apply to actions of soldiers overseas ii. All justices agree with the military point; many note that the rule could be cabined. 1. But then cops pass on evidence to the military? d. Follows courts. If want to use our courts, must follow 4A. This bleeds in with (b). 2. Rule: 4A does NOT apply if a nonresident and if the property is outside the country a. Unclear if it applies if only one of those is true b. Hypos: i. Resident alien’s US home? 4A protection since both substantial connection and inside US territory ii. Illegal alien’s US home? 4A protection. Work, pay taxes, have family, so probably substantial connection. c. Overall, seems that 4A applies whenever search within the US, since Kennedy and others had concerns about impracticability i. But see Esparza-Mendoza (p.419) (4A does not apply to illegal alien searched within US territory). Some indication though that this was erroneous holding, see p.S74. d. Overall, seems that for US citizen, 4A always applies, no matter where they are i. So 4A if citizen’s non-US home searched ii. See Bin Laden (p.420) (US citizen can assert 4A for search by US officers of his Kenyan home) iii. BUT exception for foreign intelligence for natl security 6 Vikas Didwania Winter 2009

iv. BUT remember that search must be performed by US govt official! 1. And doesn’t matter whether military or DEA. If hold one and not other, then will just pass the buck. 2. What if US govt directs them to? If say doesn’t apply, then US will just pass the buck. Probably if evidence to evade, then would apply. 3. Analysis: a. 4A violation complete at time of search. So any const violation must have occurred in Mexico. b. 4A applies only to “the people”. i. Definition: a class of persons who are part of the national community or who otherwise have developed sufficient connection with the country to be considered part of that community ii. Original intent was to protect people of the US 1. Contrast with 5A and 6A, which use “person” or “accused” 2. No evidence that intended to apply to aliens outside US territory iii. Here, Δ not part of the national community, and search was conducted outside US territory 1. But he was lawfully present due to his detention? 2. Court: insufficient to indicate any substantial connection with the country 3. This would basically mean following govt action, since would apply to everyone. 4. But smuggling drugs into country? Seems like illegal acts can’t be basis for substantial connection. c. Kennedy concurrence: doesn’t think the text “the people” was supposed to be a limit; rather, it was about the importance of the right i. But signs on. Getting a W in this situation would very impracticable with foreign judges and privacy norms of foreign country d. Stevens concurrence: similar to Kennedy. Δ is part of the people since he was in detention here. But no W req b/c that’s impracticable. e. Brennan dissent: i. Part of the people, had substantial connection: 1. May well spend the rest of his life in prison here 2. Attempting to enforce our laws against him, thus treating him as a member of our community ii. Fairness / mutuality: if we expect them to obey our laws, aliens should be able to expect that we will obey them too 1. Plus this will encourage other nations to respect the rights of our citizens iii. Then criticizes majority for misconstruing precedent, many of which were expressly limited to their facts and none created a “substantial connection” limiting construction on “the people” iv. Essentially: signs on to the 4A follows govt action prong f. Blackmun dissent: agrees with Brennan that if held accountable to our crim laws, then part of “the governed” and get 4A protections i. Agrees no W requirement here, but think PC not met ii. To what—“search” 1. AS: RULE seems to be that if nosy private person could do the search w/o breaking the law, it won’t be a “search.” But see O’Connor in Riley and the tech cases. 7 Vikas Didwania Winter 2009

Katz: SCT, 1967, p.349 Background: FBI agents attached listening device to outside of phone booth to listen in on suspect’s phone conversations. Had PC but no W Case: Issue: was there a search? Ruling: Yes, there was a search. 4A protects people, not places. What he seeks to preserve as private may be Const protected. Given that search, it violated 4A b/c no W (and no applicable exigent circumstances).

2. Govt argued that there was no physical entrance into his area, so no search. Historically, 4A limited to searches / seizures of tangible property, and needed physical penetration (trespass). a. Now that 4A protects people, not places, trespass can’t be the test. Protects intangible items such as oral statements. 3. Harlan concurrence: established the rule a. RULE: i. One: subjective expectation of privacy ii. Two: society is prepared to recognize as reasonable or legitimate this expectation 1. Court will tell us this. But how does it know—ask jury, take a poll, social judgment? Nope, judge decides. 2. NOT a populist doctrine then. If it were, govt could set privacy expectations by telling us / acting (bullhorn shouting X is not private) b. Phone booth meets both those criteria. c. And the govt’s action invaded / defeated that expectation of privacy 4. Black dissent a. Text: words of 4A are about tangible items (papers, effects, etc.) b. Text: refers only to things already in existence, since W requirement says must be described. Can’t describe a future conversation. c. Court shouldn’t be in the business of modernizing the Const. 4A is about unreasonable searches, not individual privacy 5. Takeaway: 2 effects: (1) 4A concerned with more than just tangible prop; (2) 4A concerned with more than just physical penetration of physical spaces; and location still matters b/c have different privacy expectations in diff places 6. Criticism: some animating theory of privacy is necessary to figure out the boundaries, which Katz doesn’t provide. a. Informational – secrecy, restricting flow of info. But note that there can be shared privacy, such as when sharing info with friends / family i. In Katz, Δ was sharing the info with person on phone ii. Me: And it need not be oral conversations. Diaries, person effects can provide info about you b. Emotional – privacy of your person, your home. Includes having your property seized openly c. Autonomy-based – making judgments not influenced / interfered by govt (Roe) d. Counter: don’t need overarching theory. Rather, should have incremental change, like common law, since 4A encompasses virtually every human action imaginable e. How to argue for privacy: i. Normative – good if people have this form of info / emotional privacy, regardless of whether pervasive ii. Empirical – I see this pattern of behavior in the world (e.g. can estimate the prob of this info getting out) iii. Legal analogical – look at how law works in other fields and then translate those norms over to 4th Amend 8 Vikas Didwania Winter 2009

7. Criticism – perverse result that courts eroding privacy in order to limit Katz 8. Criticism – Katz created a binary approach of either privacy expectation or not (and 4A or not) but could imagine a graduated system where greater regulation depending on the nature / degree of privacy invasion a. Counter: might be too complicated, especially for cops 9. Eavesdropping on street conversation v. bugging pay phone a. Former no 4A protection while latter yes 10. Open fields v. cartilage a. Starkest example of how 4A is still location-based b. Open fields – no 4A protection, even if officers trespassing, b/c no privacy expectation. See Oliver (p.358) i. Note that property right is only 1 element in determining expectation of privacy. Here, looked at societal understanding of certain areas c. Curtilage – 4A protection i. 4-factor test for determining cartilage. See Dunn (p.360) 1. Proximity of the area to the home 2. Whether area is included w/in enclosure surrounding home 3. Nature of the uses for the area 4. Protection of the area from observations by passersby ii. Note: cartilage can extend beyond the first fence iii. Flying over cartilage: 1. See Ciraolo (p.360) – cops inspected backyard flying at 1000 feet. Yard was cartilage but the aerial surveillance did not constitute search. No reasonable expectation of privacy given commonality of commercial flight, and here used naked eye.

Riley: SCT, 1989, p.361 Background: Helicopter flew 400 feet above greenhouse, which had part of its roof missing, and saw what looked like weed. Used the naked eye to see the weed, and no laws or regulations were broken. Case: Issue: was there a search? Ruling: No search. Court cites to Ciraolo as controlling precedent.

1. Had subjective expectation of privacy – blocked view from road, a no trespassing sign, and roof mostly covered 2. Plurality: But not one that society is ready to accept as reasonable. a. Same idea as Ciraolo. Lots of flying occurs today such that can’t expect privacy. Fact that this is helicopter (as opposed to plane) and 400 feet (as opposed to 1000) doesn’t really make a difference. b. No evidence that helicopters flying at 400 feet sufficient rare in this country. It certainly is not against the law, which the majority says is crucial fact. 3. Criticism: how do they know what’s rare? They don’t have empirical data. And different rates in NYC versus small-town Alabama. If do locality, then different 4A standards depending on where you live. 4. O’Connor concurrence: places burden on defendant to come up with empirical data about frequency of helicopters. Because no such data, his claim fails, no search. a. Also notes that the relevant question is not whether the helicopter was breaking any regulations i. This would be odd since govt gets to determine extent of privacy b. But whether it was in the public airways at an altitude at which the public travels regularly. 9 Vikas Didwania Winter 2009

c. Me: there is probably some correlation between the two 5. Brennan dissent: attacks the majority position that the reach of 4A can be defined by administrative regs. Notes that Court has consistently refused to equate law violation with 4A infringements. For example, police can trespass on open fields and still not a search. a. Responds to O’Connor by saying burden should be on the govt, since it has the best information on flying practices 6. AS theory: judges will look at pattern of behavior and some independent notions of privacy to determine what is reasonable. By looking at the just the first, will get bad law (e.g. govt influences behavior in order to destroy 4A protection). By looking only at latter, will just have free-form philosophical thoughts that many not map on well to realities.

Bond: SCT, 2000, p.365 Background: Agent squeezed the soft luggage of a bus passenger. Felt a brick-like object, with turned out to be drugs Case: Issue: was there a search? Ruling: Yes search. Distinguishes Ciraolo based on visual vs. physical invasion

1. Govt had asserted that Ciraolo controlled in holding no search here since the matter was open to public observation (anyone could have touched the bag) 2. Court rejected, argued that physically invasive inspection is simply more intrusive than a purely visual inspection 3. AS: this is about emotional privacy, not info privacy. That’s why the method of investigation (tactile vs. visual) matters, instead of the info seized. 4. Knowingly exposed to the public:

White: SCT, 1971, p.368 Background: Cops wired a co-conspirator so they could listen in on the conversations he had with Δ in the defendant’s home Case: Issue: was listening in on the conversation between the conspirators a search? Ruling: No search. Defendant knowingly exposed the info to the conspirator and by implication to cops.

1. Precedent: Katz had noted that what a person knowingly exposes to the public, even in his home, is not the subject of 4A protection; Hoffa had held no evidentiary problem is the conspirator himself was relaying the info to cops (or testifying at trial); On Lee had held that transmission via wire makes no difference 2. Clearly, the D has a subjective expectation of privacy. But by revealing the info to someone else, unreasonable to expect privacy. One assumes the risk that his companions may be reporting to police. 3. So the question in this case, after the precedent, was whether Katz changes anything. a. Court was unwilling to wipe away those precedents. No reasonable expectation of privacy. b. Court: the D would not distinguish between an informant and an informant with a wire. His utterances are likely to be the same. c. Wires are only better, because they increase accuracy and reliability i. Further policy: maybe concern is that certain crimes can’t be investigated w/o using covert agents (such as drugs, bribery) ii. Note that these should be irrelevant. First supposed to decide whether a search and then its reasonableness (taking into account govt interest). Here, defining search by whether it is reasonable.

iii. The Court is being normative about what privacy expectations should be, not empirical (Ciraolo) d. Finally, fact that this took place in the home is irrelevant i. Me: I think this is Katz, where location doesn’t matter; all about privacy expectations. Our expectations about privacy of such conversations don’t change when in home 4. Harlan dissent: argues that majority’s logic is fallacious a. Logic: if A can relay verbally what’s revealed to him, or record it and then reveal it, then makes no difference if A contemporaneously transmits the conversation instead i. Two assumptions, though: (1) no greater invasion with a third party listening; and (2) with a wire b. Mostly policy discussion of how constant electronic surveillance could erode the security / confidence we have in dealing with others. These rules apply not only to criminals but everyone—all will now assume the risk that conversation is being transmitted c. Also notes the point made above that privacy expectations reflect the laws that create customs / values.

Greenwood: SCT, 1988, p.374 Background: Cops had trash collector pick up D’s garbage and deliver it to them. Then looked through it. Case: Issue: whether rifling through opaque, sealed garbage bags left curbside is a search? Ruling: No search. D exposed their garbage to the public sufficiently to defeat any reasonable expectation of privacy in them.

1. D had argued that the garbage was in opaque, sealed bags. Expectation was that the bags would be there temporarily before getting mixed in with everyone else and thrown at the dump. 2. Court: bags curbside are readily available to anyone—animals, snoops, etc could get to it. In fact, they place their bags there expressly for the purpose of giving to a third party. No expectation of privacy in these bags. 3. Brennan dissent: makes much of the fact that bags were opaque and sealed. If they were carrying them, would be protected. No less protection just b/c discarding rather than protecting his goods. a. He thinks most people would have expectation of privacy in trash bags. b. All he exposed to the public was the exterior of some bags, not their contents c. That he left the bags curbside and to third party are due to an ordinance that requires it. And voluntary relinquishment of a possession doesn’t mean lose privacy expectations—think letter you mail. d. Same point as Harlan about law here dictating privacy expectations 4. Bottom line: seems the only way not to lose your 4A protection is by not saying anything and not revealing anything to the public a. But of course this can’t be totally right. We certainly expect privacy in what we reveal to a few others (“shared privacy”) 5. Privacy and technology: measuring what’s “exposed” a. See Knotts (p.379) – person traveling in car on public road has no reasonable expectation of privacy in his movements. Monitoring of beeper inside container of chemicals in car wasn’t a search.

Karo: SCT, 1984, p.379 Background: Ds ordered can of ether from informant, who agreed to switch the can with one from the govt containing a beeper. Govt then traced the can as it went from car to inside (and around) house and so on. Case: Issue: whether monitoring of the beeper in a private residence constitutes a search of the home? Ruling: Yes search.

6. Initial issues: had no privacy interest in beeper (belonged to govt), OK to place in can since under informant’s consent (who was owner at the time), transfer of container was not a seizure (even though beeper intruded and maybe trespassed on the space, didn’t interfere with possessory interests) 7. Employing a beeper to obtain info about a home it could not have obtained by observation from outside the curtilage is a search. a. Of course not the same as physically rummaging through the home. But did tell them crucial info about whether a particular object is inside. b. Indiscriminate monitoring of property that’s been withdrawn from public view would present a serious threat to privacy interests in the home 8. Then Court does a good fruit of the poisonous tree analysis 9. Stevens concurring / dissenting: use of a transmitter on person’s property is both seizure and search a. Seizure: owner of property has right to exclude it from all the world and attaching a beeper infringes on that right in a meaningful manner b. Search: property (the can) here concealed from plain view, so it is private, as is its location, and gets 4A protection. i. Me: I think Stevens differs in that thinks after can entered the home, that’s it. Even if driven out again, still a search, because now the beeper is still doing independent work of providing the can’s location that cops otherwise wouldn’t know. ii. Maybe to majority it’s about privacy in the home while to Stevens it’s about privacy in the can 10. AS: Court may be adopting plurality’s view in Riley – if a really inquisitive private party could do it, then it’s not a search. Here, private party could follow a car on a highway after spotting the can. a. Maybe this is a good backstop. Police can monitor a lot through aggregation—numbers dialed through pen registers (Smith), cell phone locations, surveillance cameras, etc. But this goes beyond what private party can do. b. But yet police can aggregate all this info b/c knowingly exposed.

Kyllo: SCT, 2001, p.387 Background: Cops used thermal imaging sensor on D’s home to discover that walls and roofs significantly hotter than surrounding houses. Validated their suspicions that he was growing weed, which requires really hot lamps. Case: Issue: whether use of the device constituted a search of the home? Ruling: Yes search.

1. RULE: obtaining by sense-enhancing technology that’s not in general public use info regarding interior of the home that could not have been obtained without physical intrusion of the “constitutionally protected area” constitutes a search a. In other words, a 4-part test i. uses human-sense-enhancing technology to ii. reveal information about a home’s interior that iii. couldn’t have been acquired without physical intrusion, iv. at least if the technology is not now in general public use b. A lot of talk about the importance / intimacy of the home as a private place. Home interior has lots of emotional privacy. 2. Me: I think Court trying to balance privacy and technology. Using planes is OK because they are common. These infrared gizmos are not. But the rule allows for a flexible approach going forward 12 Vikas Didwania Winter 2009

3. Stevens dissent: any passerby could measure (feel) heat emanating from building, which is all they did here. 4A only protects people’s right to be “secure in their homes.” a. Here, didn’t penetrate home’s walls in any way or even gather any information about the interior of the home—only the heat outside the home. From that info, they made inferences about what was going on inside, but that’s clearly OK. b. Criticizes the rule, b/c it will make privacy fleeting as more invasive tech becomes more popular c. Criticize rule b/c it’s focused on protecting the home, while protection should be broader. Katz said 4A protects people not places. d. Finally, has to distinguish Katz, where held it was a search even though stayed outside the phone booth. But in Katz, listened in on what was going on inside, what normally could only be done by being inside the booth. Here, no info about inside the house, only the heat outside. 4. Effect: makes white-collar drug investigations more expensive, thus possibly shifting investigative resources to cheaper places—urban street corners 5. Dog sniffs: narcotics dog sniffing luggage is not a search, because it is far less intrusive and only discloses presence of contraband. See Place (p366). a. No privacy interest in contraband. But doesn’t this depend on a low error rate? (Note here D conceded that dogs are almost 100% effective) b. AS: maybe diff btwn dog sniffing luggage and your body. Emotional privacy / physical invasion.

Caballes: SCT, 2005, p.S63 Background: D stopped for speeding. While Officer A writing ticket, another officer sniffed car with narcotics dog. Case: Two issues here: first, was this an unreasonable seizure? Even if not, did the use of a dog constitute and unconst search? Ruling: Seizure okay, no search.

6. Seizure: it can become unlawful if it is prolonged beyond the time necessary to complete the mission. a. Here, even though used dog, DCT found that seizure was not prolonged 7. Search: use of a dog sniff does not change the character of a traffic stop that is otherwise lawful a. Cites to Place and notes that no legit privacy in contraband, so the dog sniff cannot compromise any legit expectation of privacy 8. Souter dissent: infallible narcotics dog is legal fiction. Lots of false positives, which indicates that privacy interests are being invaded. a. Slippery slope: dogs sniffing people 9. Ginsburg dissent: injecting an animal into routine traffic stop changes the character of the encounter. a. Me: seems like emotional privacy. Discusses how citizen will be exposed to embarrassment (kind of like the nth stop cases) b. Slippery slope: just go around sniffing all cars in parking lot. Forget Bond, since could just use dogs to sniff the luggage instead of squeezing it 10. Note: all dissenters are willing to create exceptions for bomb sniffing dogs iii. To what—“seizure” 1. Theory: aren’t seizures about liberty, not privacy? No, it’s the privacy to be let alone 2. No global test like in search context with Katz. 3. Two categories: a. Physical contact with officer – intentional acquisition of physical control by the officer. See Brower, Hodari D. 13 Vikas Didwania Winter 2009

i. So roadblock needed to have intended to stop the car ii. So chasing isn’t enough until cop tackles you b. Other situations – show of authority and person submits. See Bostick. i. If officer says to stop and you comply, that’s a seizure ii. Court wants to create incentives for you to stop and comply, so if you do, you get Const protection iii. But maybe creates perverse incentive on cop to scare you and make you run, so you don’t get protection? c. Me: basically four situations where person will not feel free to leave: (1) seizure by physical control (tackling); (2) seizure by intentional acquisition of physical control (setting up roadblock); (3) show of authority + submission; (4) coercive conversations

Bostick: SCT, 1991, p.394 Background: Bus case. Officers boarded bus and were holding gun in Ziploc bag. Without any suspicion, picked out D to search. Lower court assumed that advised D he had right to refuse consent and that cops never threatened him with gun. Also assumed that he provided consent. Case: Only question is whether the initial encounter was a seizure? Ruling: No seizure, so can admit the drugs found on him (since he consented to the search)

1. RULE: as long as a reasonable person would feel free to disregard the police ad go about his business, the encounter is consensual and NOT a seizure a. Only when officer, through force or show of authority has restrained the liberty of the citizen is it a seizure 2. Application: here D didn’t feel free to leave, but that would’ve been true even if no cops there, since it’s a bus. The appropriate inquiry is whether a reasonable person—one who is innocent—would feel free to decline the officer’s requests or otherwise terminate the encounter. a. Court think very high priority that cops be able to go around and ask people questions. Important for investigations, and doesn’t want to create a rule that would get rid of them. b. That’s why, even though most people in these situations wouldn’t feel free to leave, somehow the “reasonable person” (i.e. the judge) will c. Should race factor into reasonable person? Blacks may have very different approaches than whites. 3. Remands to see under totality of circumstances whether person would have felt free to terminate the encounter. 4. Note: Court left open the question of whether cops should be required to inform the person that he can refuse to cooperate 5. Aside: why would he have consented to a search if had contraband? a. D argued this: he must have been seized b/c otherwise wouldn’t have consented to a search knowing he had contraband. Court: reasonable person test presupposes an innocent person b. Maybe he felt intimidated. Maybe he felt that they would search anyway—and that search less intensely if he says yes. Maybe he thought if he said yes they just wouldn’t search, since suspicions not raised. c. Counter: but cops would take into account these strategic moves 6. Marshall dissent: agrees with the established test but argues no way D here felt free to terminate the encounter. What would he have done? Nothing practical, coercive environment, it was a seizure (plus aside on how this was racial profiling)

Drayton: SCT, 2002, p.399 Background: Bus case. Similar to Bostick. Officers in plain clothes, visible weapons, standing at either

end with one moving up the aisle. Never blocking the aisle or the exit. Questioning was very deferential: “Mind if I ask you” and “Mind if I check you?”. But did not inform of right to refuse. Case: Answers the question left in Bostick: whether officer must advise D of right not to cooperate. Second question of whether their consent to search was involuntary—Court says basically the same question as the first. Ruling: No Const requirement of having to inform

1. Officers gave passengers no reason to believe that they were required to answer a. Spoke in a quiet, polite voice. People were leaving the bus to get snacks, so fact that took place on the bus is in no way dispositive. b. Fact that wearing badge or weapon is irrelevant. Cops often wear them, and didn’t brandish the weapon. c. But what about fact that very few people refuse to cooperate? Court: well they cooperate b/c know it’ll enhance everyone’s safety 2. Takeaway: informing citizen of right to refuse is one factor to consider in totality test of whether felt free to terminate encounter, but can’t be dispositive 3. Souter dissent: circumstances / environment matter a lot. Think about someone surrounded by police in a narrow alley—probably intimidated (to the point of being seized). A person may feel “threatened” enough to overbear his ability to act freely, even if cops have not made any explicit commands. a. Here, environment had obligatory feel to it. And can see that with stats that almost everyone consents. Majority’s explanation that people do it to feel safe is laughable—after all, don’t require the same metal detectors as we do on planes 4. Mendenhall (p404, 1980) – Court gave factors for what may constitute a seizure: (1) threatening presence of several officers; (2) display of weapon; (3) some physical touching of the person; (4) use of language or tone indicating compliance necessary 5. Brower (p.405, 1989) – whether police officers had seized Brower when his stolen car crashed into roadblock set up to stop him. Court: yes a. RULE: seizure only when govt termination of freedom of movement through means intentionally applied b. So if police car accidentally slips out of brake and pins someone, not a seizure. c. Cops don’t have to predict the precise manner or achieve the exact desired end (e.g. bullet aimed for leg hits arm). Only that instrumentality used to stop him actually did stop him. d. I think concern here may have been that he was the one who drove into the roadblock and so stopped himself. 6. Hodari D (p.406, 1991) – cop started chasing D, who then threw away his crack, and then finally tackled. Question is whether seizure occurred when tackled or when originally started chasing. If the latter, then crack could be excluded a. Court: long history of the word “seizure” in law. b. Rule: when have mere show of authority but the suspect does not yield, there is no seizure c. Dissent: by hinging seizure on citizen’s reaction, rather than officer’s conduct, police could no longer know ahead of time whether contemplated conduct would implicate 4A 7. Dispersal orders: are these seizures? a. No physical force or physical control—in fact, telling you to go away b. Show of authority (yes) + submission. But what’s submission here, running away? 8. Who gets seized? a. Stop a car, driver seized, but what about the passenger? b. Answer: both parties are seized

c. See Brendlin (p.S73, 2007) – the criteria is willful restriction of freedom of movement (as in Brower). Not subjective intent of the officer in who he was targeting in the stop—whoever’s movement was restricted. d. Show of authority + submission: here, submitted by staying in car e. Me: note that it’s seizure of person, not car. Car stopped but Court focuses on whether person felt free to leave (submitted) d. What does 4A require? i. PC is a substantive standard while W is a procedural requirement ii. Probable Cause – idea is that govt can invade your privacy if it has a good enough reason 1. Broad definition: either (1) probability (level of belief) that (2) of a crime or evidence of a crime a. (1) does NOT depend on seriousness of crime, meaning don’t say (1) can be lower / higher if crime more serious b. But it probably is taken into account by magistrate 2. Court’s definition: PC when facts and circumstances within officer’s knowledge and of which they had reasonably trustworthy info are sufficient in themselves to warrant a man of reasonable caution in belief that offense has been committed a. Translates into three parts: i. Objective reasonable LEO ii. Considering totality of circumstances known to this LEO, including just corroboration of informant’s allegations (Gates) iii. Would have a fair probability or reasonable ground for belief iv. …that crime or evidence of crime. b. Mere suspicion is not enough c. After Gates, seems corroboration of innocent activity + bare allegation by anon tipster is sufficient. 3. Draper (p.424, 1958) – informant’s tips had been consistently accurate and this time had been given small amount of money for the info. Gave lots of info about appearance and schedule, all innocuous, and turned out correct. Court: had PC based on the info to arrest 4. Spinelli (p.424, 1969) – FBI had been tracking D, and the info seemed to raise suspicion but it all referred to perfectly innocent activity and data (such as having 2 phone lines). And then confidential informant (CI) that D was a gambler. a. Harlan: this is circular. CI’s tip gives suspicious flavor to their innocent data and the innocent data confirms the CI’s suspicions. b. Rejects totality of circumstances test in favor of three factors: i. CI’s credibility, based on track record and possibly corroboration 1. Corroboration: Independently investigative proof of informant’s assertions. How extensive was his info and how well did it corroborate? ii. CI’s basis of knowledge: how did he get this info? iii. NOTE: later interpreted to be a 2-prong test: (1) basis for knowledge; and (2) veracity (credibility) / reliability. Both prongs had to be satisfied. iv. In other words: the info is credible (basis of knowledge) and the informant is credible (veracity) c. Here, (i) and (ii) completely unmet. As for corroboration, CI just gave 2 pieces of info about innocent activity that ended up corroborating. d. Draper, informant had a track record and gave lots of extensive details that corroborated, even if all innocent activity 5. Spinelli suggests that judges should be skeptical of informants, especially CIs a. Nothing to lose by making false allegations and magistrates can’t question them 16 Vikas Didwania Winter 2009

i. But maybe remain anonymous b/c have good info and fear retaliation. So raises credibility. b. Worry about cops fabricating CIs. c. But lots of investigations depend on anonymous tips

Gates: SCT, 1983, p.426 Background: Cops received anon letter with direct, explicit allegations of drugs in car / home. Says received info first-hand from the Ds. Gives detailed info about how the couple flies to FL and drives back. Note that all this info is about completely innocent activity. Just like in previous two cases, cops corroborate (most) of the innocent activity but have to depend on the bare allegations of the CI of illegal activity. Case: Whether the cops had PC for a W to search the car and house Ruling: Yes, abandons Spinelli test for a totality test

1. Adopts TOC because PC is a “fluid concept” 2. The 2-prong test in Spinelli is relevant but can’t say both prongs must be met. A strong prong 2 can mitigate a weak prong 1—meaning that an informant known very well for his reliability will not be penalized for not setting forth his basis of knowledge 3. Policy concern: anon tips often contribute to solution of otherwise perfect crimes, even if don’t know veracity (credibility) at all 4. Application: a. Gave extensive info, even if only about innocent activity. The info suggested drug runs (even if also suggested vacations) b. All this extensive info was corroborated c. Inference is that letter writer got all this info from the Ds or someone who knew the Ds well, which suggests that knew about what the Ds were doing d. Criticism: neither veracity (track record) nor basis of knowledge satisfied here. As to latter, merely saying “I heard it from D” can’t be enough. Just hunch. e. Me: so just going purely on corroboration since no track record and no basis for knowledge. 5. White concurrence: issue should be whether actions of suspect give rise to inference that informant credible and his info reliable a. If informant can predict what someone will be wearing 2 days in advance, then can infer that he knows something, not mere rumor. The inference is that informant has reliable inside info. b. Here, could draw inference, after corroboration, that letter writer had inside info c. Differs with majority that if know informant is reliable, can ignore no basis for knowledge. That suggests we allow hunches of cops to establish PC, since cops are reliable i. Otherwise, giving hunches of informants more weight than those of cops. That’s odd. Plus hunches of cops are never enough. 6. Stevens dissent: informant’s letter was wrong! Says three things: a. Seems Ds didn’t always need someone at the house—which is what the letter had suggested in the detailed scheme (b/c $100k drugs at house) b. Makes activity seem substantially less suspicious. Husband working late, flies down later, and both drive back. c. Question informant’s credibility 7. With PC, why not require the same level of certainty as at trial, since will have to prove that at trial? a. Here, something much less that beyond reasonable doubt or PoE

b. One: cuts the other way. B/c have trial (with higher bar), if cops made a mistake, can correct them at trial and set person free c. Two: it’s a compromise. Getting arrested and then out on bail is less intrusive / burdensome than a trial, so require less from the state 8. Effects of having a standard instead of rule for PC a. Reduces power of appellate courts, since fact-based i. Makes sense since magistrates are closer to the field b. Permits local variation, like a series of local liability rules (I think b/c magistrates will differ across towns?) 9. NOTE: pp 435-36 have a GREAT HYPO for distilling all this‼ Breakdown: a. Extensive innocent info by completely anon informant that is corroborated may be sufficient for PC (Gates, Draper) b. Bare allegation by trustworthy informant is OK (implication of Gates) c. Bare allegation by cop is insufficient. 10. Aside on Standard of review: a. Overview: i. If sought warrant: defer to magistrate’s determination of PC. Reviewing court should look whether magistrate had a “substantial basis” for finding PC ii. If no warrant sought, then 1. De novo review of ultimate PC determination (by trial judge in motion to suppress hearing) a. Creates reward for officers who seek W 2. Findings of fact still reviewed for clear error 3. Give due weight to inferences of trial judges AND local LEO b. Bottom line: in appellate courts, cops and trial judges will receive the same deference (due weight to their inferences), meaning that cops get lots of deference

Ornelas: SCT, 1996, p.437 Background: Case about 20-year veteran had suspicions raised when saw particular car with CA license plates. Two men on car registration and motel registry were known drug dealers. Ds got into car, cop stopped them, asked if he could search the car. They consented, and then removed the armrest to discover drugs. Said saw rusty screw, indicating that it had been removed. No warrants but had consent to search car. Under 7th Cir rule, however, consent doesn’t apply to search of armrest as well.

DCT held that all together, with the loose panel and rusty screw, had PC. Appeals reviewed on whether the determination was “clearly erroneous.” Case: Appropriate standard of review of PC determinations? Ruling: See above: de novo of the determination but deferential to the facts

c. Ultimate determination about PC is one of mixed law / fact—about whether all the info would amount to PC from the standpoint of objective reasonable LEO d. Need indy review: i. Need appellate review to clarify legal principles that can then be applied by all DCT judges. ii. Otherwise, if leave to DCT judges to make all determinations, will lead to disparities and arbitrariness e. Different reviews based on whether W / no W b/c want to create incentives for cops to get Ws, since that’s what the Const requires f. Inferences of DCT judge (AND local LEO) should be giving due weight b/c they know the local area, what’s suspicious g. NOTE: not saying anything about magistrates deferring to officer judgments. No clear requirement either way 18 Vikas Didwania Winter 2009

i. No reason they should, given the W requirement is about a neutral and detached person evaluating PC. ii. AS: but SCT here shows deference to officer inferences, so likely that magistrates will as well 11. Who the PC is directed at: a. Above, we saw all the things that can lead to PC. Now must determine who gets implicated by PC. b. Takeaway: car makes a huge difference in what particularization requires!

Ybarra: SCT, 1979, p.445 Background: Cops had W to search tavern and bartender for drugs. When there, started searching all the patrons, including Ybarra (search him, found cig pack, and inside found heroin), who was playing an arcade game. Case: Whether the cops had PC to search Ybarra Ruling: No PC to search him.

c. RULE: person’s mere propinquity to others suspected of crimes does not, without more, give rise to PC to search that person i. RULE: instead, any belief of guilt must be particularized with respect to person to be searched / seized d. Application: clearly had some particularization, given that Ybarra was in the bar on the day that heroin is dealt there (instead of on Michigan Ave) but not enough here.

Di Re: SCT, 1948, p.445 Background: Informant told cop that R and B had illegal coupons. Cop stopped car, which had R, B, and Di Re. Cop found coupons on R, who said B had given it to him. Arrested all 3. Case: Whether the cops had PC to arrest Di Re Ruling: No PC to arrest him

e. Even though Di Re in car with the others, suggesting common enterprise, there had been singling out with respect to R and B, so no reason to implicate Di Re (unless get other, indy info) f. AS: creates incentives for officer to particularize at a minimum

Pringle: SCT, 2003, p.442 Background: Cop stopped car with 3 occupants, searched it, and when he opened glove compartment (driver had consented to search), found drugs and money. No one admitted to owning the contraband, so cop arrested all three. Later, D, the front seat passenger confessed that the contraband belonged to him. Case: Did the cop have PC to arrest Pringle? Ruling: Yes. Enough particularization to arrest all three.

g. How to distinguish Ybarra and not merely characterize this as guilt by association? i. Court: car passenger, unlike a tavern patro, is not merely a stranger and often engaged in a common enterprise with the driver h. How to distinguish Di Re? No singling out had occurred here. 12. What crime the PC is directed at:

Devenpeck: SCT, 2004, p.S75 Background: Cop thought D was illegally impersonating an officer. Stopped him, saw him recording the conversation, so arrested him for violating state privacy statute, not realizing legal to record conversation at traffic stop

Case: Did the cop have PC to arrest D when the offense for which there is PC to arrest (the impersonation) is not closely related to the offense stated by the officer at time of arrest? Ruling: Yes. PC to believe a crime is being committed.

a. Officer’s subjective reasons / state of mind is irrelevant. PC is an objective inquiry, and here clearly had PC for a crime, regardless of what he stated at the time of arrest b. Otherwise, two perverse effects: i. Officers just wouldn’t state their reasons for arresting the suspect (since not Const required), thus giving them less info ii. PC would depend on whether officer a rookie or pro—the rookie may not be as familiar and so could not arrest in the precise circumstances iii. Warrants 1. Justification: inferences drawn from evidence be drawn by detached and neutral magistrate instead of an officer who is in the competitive enterprise of ferreting out crime a. AS: ex ante scrutiny, ex parte, decision-maker impartiality (neutral, detached), Constitutional fidelity i. Ex ante: can prevent some injuries, avoid ex post bias of judge if do find incriminating evidence, and reduces incentives of cops to testify falsely b. All these justifications contested. See next bullet for fidelity. 2. Criticism: 4A text nowhere says W required; merely limits them to certain situations (in response to use of general warrants in 18th century) a. Response: 4A was aimed at searches conducted using general warrants —those were unreasonable. So understandable to then require W that are not general (require PC) b. AS: just establishes a floor of when W can’t be used. Unclear about when they can (or must) or whether preferred 3. Other criticisms: a. Judges making it up that it’s good idea b. Incompetence / weakness – magistrates are rubber stamp. Just creating more paper—process burdens w/o extra protection c. Activity level – b/c more burdensome, cops will seek fewer Ws, or engage in less activity that would require Ws 4. PC prevents unjustified searches and W prevents arbitrary searches. Work together 5. 3 parts: a. Oath: specifying in an affidavit the facts giving rise to the PC i. Neg or innocent falsehoods will not invalidate warrants. However, perjured statements or reckless disregard will be stricken. And then see if the unstricken portion is sufficient to establish PC for W. ii. All the info must be presented ex ante to magistrate. So can’t make simple statements and the fill in the blanks afterwards (even if had info beforehand) iii. Today: most affidavits are cookie-cutter iv. SEE ALSO Leon below b. Magistrate: must be neutral and detached i. So state AG can’t issue warrants. ii. Magistrate can’t receive fee for issuing Ws, if doesn’t also get fee for refusing them iii. OK for clerks w/o law degrees to issue arrest Ws iv. Lots of “judge shopping” by police due to considerable variation among judges 20 Vikas Didwania Winter 2009

c. Particularity: description should be particular enough to permit an officer with reasonable effort to ascertain and identify the place intended i. BUT: warrants can have catch all phrases like “any other fruits of crime at this time unknown” but must be specific to the crime being investigated, can’t be evidence of any crime ii. See Garrison (p.451, 1987) – police entered the wrong apartment and found contraband before discovering their error. RULE: whether the officer’s failure to realize the overbreadth of the W was objectively reasonable. If it was, then search was legal. iii. Justifications: limits scope of searches spatially and temporally (if looking for painting, can’t look in medicine cabinet, and must stop once find it); supports PC requirement (if can’t state it clearly, probably don’t have PC); ensures that people won’t wrongly be deprived of their property iv. Anticipatory warrants: warrant will not execute unless X happens—at some point in future, evidence of crime will be at the location (not there yet). OK under 2-part test: 1. PC must now exist that triggering condition will be satisfied in future 2. PC of finding evidence if triggering condition takes place 3. BUT warrant need not specify triggering condition

Grubbs: SCT, 2004, p.S75 Background: D purchased child porn from cops. They got W that would not execute until the porn is received by a person and taken into the residence, but the W itself didn’t state this condition. Case: Issues: (1) are anticipatory Ws categorically unconst; (2) whether W must specify the TC. Ruling: No and no.

4. For all Ws, judge looks to whether it is now probable that evidence will be found when search is conducted 5. For anticipatory W, there is a TC beyond just the passage of time. Think of it this way, all Ws require: a. (1) prob that condition will be satisfied and (2) once condition satisfied, prob that evidence will be found b. With normal Ws, (1) is always 100%, since it’s just the passage of time. 6. Basically, these things are Const b/c very similar to normal Ws. Plus, they are especially close to wiretaps, where the conversation (the evidence) has yet to occur but anticipate it will in future 7. And TC not required on face of W b/c 4A only requires that W specify place to be searched. 4A doesn’t even require that W set forth the basis for the PC in any W—or that the W even be presented to the suspect! It’s for the magistrate to evaluate the information (me: and then immunize cops) 8. Concurrence: disagrees that W need not specify the TC. “Warrant” means statement setting out the time at which authorization begins. Plus unsettled whether Const requires cops to show W. A detailed W assures citizen of lawful authority of cop 6. Execution of Ws: 21 Vikas Didwania Winter 2009

a. Knock and Announce: b. Rule: before entering a closed premises, cops must KA c. Wilson (p.452, 1995) – Court rejected any per se rules dealing with knock / announce (KA) and required case by case analysis

d. RULE: to justify a no-knock entry, cops must have reasonable suspicion that KA under the particular circumstances would be dangerous or futile, or it would inhibit effective investigation (destruction of evidence) regardless of property damage

e. Reasonable waiting time:

Banks: SCT, 2003, p.453 Background: Cops had W to search D’s home. KA, waited 15 secs with no answer, and then broke the door down. D later said that he was in the shower and didn’t hear anything until the battering ram. Case: Did the cops wait an unreasonable amount of time in executing the W, thus violating 4A? Ruling: No, under TOC.

f. Relevant inquiry is the particular exigency claimed i. NOT how long it would take to come to door, which would give someone in a mansion much more time ii. This is a TOC inquiry. Here, exigency was destroying evidence (flushing the coke), so shorter wait time. 15 secs is enough. iii. That property may / may not be damaged is completely irrelevant. Only exigency is the relevant inquiry. iv. RULE: absent exigency, police must KA, then receive an actual refusal or wait out the time necessary to infer one 1. AND: the wait time may be longer if there will be property damage. But note that property damage only relevant when no exigency; if exigency, damage is irrelevant g. Aside on exclusionary rule: here, if 15 secs would have been unreasonable, would have to ask what would’ve been reasonable. Let’s say 30 secs, then you exclude all the additional drugs he could’ve flushed in those extra 15 secs. So basically, no remedy for failure to KA 7. Sneak and peek warrants: target totally unaware, must inform him within 30 to 60 days a. When identifying the suspect would have adverse results: physical safety or destruction of evidence b. Makes most sense in wiretaps—if tell them tapping their phones, clearly just won’t use it c. For specific provisions, see p.457 8. First Amendment concerns: special limits on use of Ws to search newspaper offices? No. See Stanford Daily (p.457, 1978) 9. Execution and the media:

Wilson: SCT, 1999, p.458 Background: Had W for arrest of Dominic, went to the listed address not realized home of his parents. W made no mention of media presence but brought along media to show off their new Operation. Swept the house and then left when didn’t find suspect, all while media took photos (but didn’t help with execution of W in any way) Case: did bringing media along violate the scope of the W, and thus 4A? Ruling: Yes. But no damages b/c of QI.

10. Note that everything the cops did except for the media was perfectly OK under 4A. And this was a § 1983 action, since father completely innocent. 11. RULE: conduct of cops must be related to objectives of the W authorizing intrusion 12. Application: reporters were not present for any reason related to the justification of the police entry—their presence not related to the objectives of W at all a. Counter: but the reporters further law enforcement mission b. Court: further objectives of police in a general sense, but not of the search 13. AS: arbitrarily deciding the right level of generality. If say purpose of W to serve the Operation, then reporter is within scope a. Maybe b/c it’s the home, set a low level of generality. Privacy of home very important 14. See also Lauro (p.461, 2d, 2000) – staged perp walk, serving no cop purposes, exacerbated execution of arrestee’s seizure unreasonably, violating 4A a. But see Caldarola (p.462, 2d, 2003) – cops videotaped the post-arrest walk and distributed tapes to the media. OK, b/c served legit cop purpose of informing public and enhancing transparency b. Distinguished Lauro b/c there the perp walk was totally staged, while here part of the normal post-arrest process iv. Warrant exceptions 1. Three step process: (1) W required; (2) unless fits one of the exceptions noted below; and (3) if it doesn’t, state bears burden of arguing for a new exception 2. Exigent circumstances

Mincey: SCT, 1978, p.463 Background: Cop A arranged to buy drugs from D. When went to his place and knocked, D’s friend opened the door. Cop A slipped inside and then friend tried to slam door but other cops pushed back. Lots of shots heard, Cop A was killed by D upstairs. Searched through whole house, searching for other victims and nothing more. Then kept watch until homicide division arrived. Tore the house apart for weeks, without any warrants. Case: Was the initial warrantless search immediately after shooting const? Was the second, thorough warrantless search const? Ruling: First one yes, second one no.

a. Initial warrantless intrusion, no KA, not dealt with b. First search: definitely Const. Clearly exigent circumstances here. c. Second search: unconst b/c no warrant and no relevant exceptions apply i. Once no actual emergency, no W exception, regardless of the seriousness of the offense 1. And warrantless search must be strictly circumscribed by the exigencies. Meaning that the warrantless search must end when the exigency does. 2. Court doesn’t want to get into “seriousness” b/c of slippery slope—is robbery serious enough? ii. State wants to create a new exception to the W req for homicide scenes. The State bears the burden, and here it fails iii. State: forfeited right to privacy after shooting cop (Court: innocent until proven guilty); additional invasion here was minimal after cops already entered and swept (Court: additional invasion was huge)

d. Even if more efficient to just investigate w/o a W, mere efficiency cannot justify disregarding 4A e. Note that here definitely would’ve been give a W if they’d asked f. Fleeing suspect: does present exigencies due to imminent destruction of evidence and public safety. See Hayden (p.466, 1967) (cab driver followed armed robber to home, police arrived and searched the house, finding the man and guns—warrantless search OK). g. Destruction of evidence: yes exigency. See Mendez (p.467, Colo 1999) (cops smelled burning weed and entered home, finding D flushing weed down toilet, warrantless search OK) i. See also Dickerson (p.467, 10th, 1999) – had W to arrest D, found him outside his home and arrested him, then went inside his house, fearing others inside might be destroying evidence. Court said OK. ii. More:

Welsh: SCT, 1984, p.470 Background: Citizen observed car driving erratically and stop in open field. Driver walked home. Citizen told cops probably drunk or very sick, so cops went to his home. They entered home, without consent, and arrested him for driving drunk. Clearly had PC here, Q is about W req. Case: Was there a sufficient exception to the W req here to allow warrantless entry into home? Ruling: No. Court had lots of flowery lang about the home.

h. Precedent: warrantless felony arrests are prohibited in home absent PC and exigent circumstances (Payton) i. Burden is on govt to demonstrate exigent circumstances j. When arrest is for a minor offense, presumption of unreasonableness difficult to rebut i. But see Mincey, where Court said seriousness of offense is irrelevant k. Here, state concern were: i. Public safety—could drive again. No imminent danger, out of car and passed out. ii. Hot pursuit—like in Warden, chasing suspect. Break in chain here. iii. Destruction of evidence (blood alcohol level). But state interest was NOT that great. Look at the low seriousness of the offense, and we know it’s low b/c of how state has classified it (nonjailable, noncriminal) l. Note that whole different story if cop found Welsh on sidewalk. Probably no W necessary. So it seems that Court is weighing seriousness of offense v. seriousness of intrusion. m. Compare with Atwater (below). Odd that they can make full-custody arrests w/o a W but can’t enter the home w/o a W when both crimes are very low stakes. n. TAKEAWAY: case creates an exception to the exigent circumstances exception to the W requirement.

McArthur: SCT, 2001, p.475 Background: Cops accompanied woman to her trailer and waited outside. She told them husband had dope inside. Cop B went with wife to get W. In the mean time, Cop A told husband could not reenter trailer unless cop accompanied him or observed him (which is what happened). Eventually got W, searched, and found drugs Case: Was his warrantless seizure unreasonable? Ruling: No.

o. Court: exigent circumstances (evidence destruction) i. And the seizure was narrowly tailored to the exigency here p. Engaged in balancing test between law enforcement concerns and privacy concerns q. Here: had PC, strong concerns that evidence would be destroyed, and narrowly tailored their invasion to minimize privacy intrusion. And invasion was limited in time (2 hours) and scope i. Plus, reasonableness of the greater restriction (no reentry) implies reasonableness of the lesser restriction (reentry with observation) r. Court distinguishes Welsh: crime here more serious (look at the penalties) and intrusion here less serious (restraint from reentry vs. entry into home itself) i. Maybe if had instead rushed into the trailer to search it, that would’ve been more comparable to Welsh, and maybe unreasonable then ii. But see Souter’s concurrence: what if had waited and then when guy went back inside (of his own accord), rushed inside citing the exigency? Souter says that would have been perfectly OK, and so what cops did here is clearly OK since it’s preferable to wait and get a W iii. Unclear, however, whether only Souter believes would’ve been able to rush in or whether that’s the law s. Victim protection: when cops serve in their role of protecting the people i. One: cops enter home of elderly people at instigation of concerned neighbors. No PC here of any crime but maybe exigency. Permitted to enter? Suppose find drugs—exclude? 1. Author says community caretaking different since no damage reputation here. Different standards OK ii. Two: but this means cops could manufacture caretaking concerns in order to gain entry into home, thus exempting themselves from PC or exigency requirements. 1. See OJ Simpson case, where cops jumped the wall and entered his home worried about his safety. Evidence suggests that police probably thought he was a suspect iii. See also Stuart (p.*1, 2006) – police responded to loud complaint and saw someone getting punched. RULE: “objectively reasonable basis to believe that occupant seriously injured or imminent threat of injury” iv. Never EVER, though, inquire into officer’s subjective state of mind. Always objective. 3. Plain view a. Seeing something in plain view is not a search. Question is that once you can see it legally, is subsequent seizure allowed? b. RULE: if cop is where he has a right to be (e.g. sidewalk) and sees evidence of crime in plain view (e.g. drugs thru window), then cop may seize that evidence w/o warrant if officer can gain lawful access to object i. The last part about lawful access is governed by state trespass law ii. More refined: if cop has PC to believe that it’s evidence of a crime. See Hicks. iii. For a good summary of the Rule, see p.485. 25 Vikas Didwania Winter 2009

Hicks: SCT, 1987, p.480 Background: Bullet was fired and cops entered. Saw sweet stereo in squalid apartment, and suspecting they were stolen, lifted them to read and record the serial numbers. Found out they were stolen, so seized them. Case: Was there a search / seizure here? If so, was it reasonable? Ruling: Yes there was and it was unreasonable.

c. Just seeing the stereo or serial was not a search / seizure, since in plain view. Recording the number was not a seizure, since did not interfere with D’s possessory interest in the stereo. d. But moving the equipment was a const violation e. Analysis: i. Lawfully allowed to be there? Yes. ii. See in plain view, PC of incriminating character? 1. If serial were on top of stereo, that would’ve been OK, since the plain view serial then would’ve given him PC to seize the stereo 2. The turning over itself is a search that is warrantless and w/o PC. And must have PC for warrantless search / seizure of item in plain view iii. If serial had been on top, then could have seized stereo, knowing that it was contraband f. O’Connor dissent: thinks PC unnecessary if conducting cursory inspection of an item in plain view

Horton: SCT, 1990, p.485 Background: Guy was robbed and he ID’d D as the robber. Cops had PC and received W to search D’s home for the three stolen rings but not for the weapons used. During the search, cop discovered the weapons in plain view and seized them. Officer stated that while he was searching for the rings, he was interested in finding other evidence; therefore, guns weren’t discovered inadvertently. Case: Does the plain view doctrine require that the evidence be discovered inadvertently? Ruling: No.

g. Court overturns the old inadvertence requirement. Says should not look into officer’s subjective intent. They don’t really have perverse incentives; if think they’ll find the contraband, generally will get it in the W anyway. h. Plus no 4A interest is served by the requirement. The W will already state specifically what / were to search, and can’t deviate from that even if want to find something else. i. Here, filled all the other reqs of the plain view doctrine, so seizure OK j. Good analysis of cop incentives and inadvertence req on p.489. 4. Automobiles a. AS did the whole 4-quadrant mobility / privacy thing. Conclusion: Court seems to care much more about privacy than mobility. So might be the same approach with cars, even if talk about mobility at first. b. Started with Carroll (p.490) – cops stopped a car b/c had PC that carrying bootleg liquor, and performed warrantless search. Court upheld due to exigency that just drive away c. Then Chambers (p.490) – cops impounded the car first before warrantless search. Court upheld, saying that under Carroll could’ve just searched it before impounding so might as well allow warrantless search after impounding (even though no exigency). AS: privacy, instead of exigency, may be becoming a consideration

d. Search of containers in cars – it was clear that with PC, could search the entire car (trunk, glove compartment), but what about containers? i. See Chadwick (p.491) – Cops waited until locker placed in trunk and then immediately arrested suspect. Warrantless search of car & locker. Court held search unconst, saying Carroll / Chambers based on both exigency and privacy. Here, much more privacy in locker. Police could’ve maintained custody of locker until W. 1. Note that diminished expectation of privacy in cars b/c so heavily regulated 2. But why should reduced expectations affect W req, which is procedural? Maybe b/c process affects substance—essentially creates a harder PC req when have W req. So when want lower PC req (due to lower privacy), no W. ii. See Sanders (p.491) – Stopped and searched suitcase in cab— again unconst. Didn’t matter that here car was actually moving (vs. Chadwick) iii. Note that in both cases, container was in the trunk (and cops had PC). Court didn’t seem to think trunk was relevant iv. See Robbins (p.491) – warrantless search of recessed luggage compartment, where found bricks covered with opaque green plastic. Plurality held search unconst—same privacy interest as in locker / suitcase. Didn’t matter that not something normally used to transport personal effects, since one my use suitcase and another a paper bag v. See Ross (p.492) – cops arrested driver, warrantless search of trunk, where found a closed brown paper bag containing white powder. Court upheld the search. Court distinguished the other cases by noting that here the PC extended to the entire car as opposed to a specific container (as in Chadwick and Sanders). vi. RULE: scope of warrantless search defined by object of the search and the places in which there is PC to believe it may be found 1. The type of container (bag vs suitcase) is irrelevant

Acevedo: SCT, 1991, p.493 Background: Known package containing drugs was picked up by X and taken to home. Cops watched as people came in / out of house carrying knapsacks. Then D came out carrying a brown paper bag that appeared full. Placed the bag in his trunk and started to drive away. Cops stopped him, searched the bag, and found drugs. Case: Should the Court overturn the dichotomy set up in Ross and allow this warrantless search? Ruling: Yes, search okay.

e. RULE: PC with respect to bag is sufficient to search the bag in the trunk BUT the search must be limited to area where contraband likely to be found. i. So here could only search the bag and not the entire trunk f. Justifications: i. Line between PC to search car vs. package is unclear ii. Perverse incentive to describe PC broadly and then search entire car (a greater privacy invasion) iii. The old line didn’t really serve a purpose. Cops would still hold the container and then just get W (since already had PC) and search it. No principled distinction btwn Ross and here 27 Vikas Didwania Winter 2009

iv. Old line created lots of confusion for police. And required courts to get into the heads of cops. 1. E.g. if cop had PC, starts searching, and the first thing he searches is the container, which rule? Should we guess the PC was really directed at the container? 2. Or did the cop simply search the most obvious place first? g. Scalia concurrence: 4A does not require W. Only limitation on when Ws can be issued. Should follow common law rule on when Ws req. h. Stevens dissent: W important b/c of neutral magis. No exigent circumstances here. Their other justifications for overruling old rule don’t hold water. i. Majority: old rule anomalous in that the more likely believe drugs in a container, less authority to search it (since less targeted means can search whole car). 1. Stevens: Assumes that the degree to which likely to find drugs should be correlated with right to search w/o W. Just not true. Can know 100% that will find drugs but still need W unless fits an exception ii. New rule creates huge anomaly. Need W to search when exposed on public street but suddenly no W as soon as placed in car. One’s privacy interest in the container does not change at all—in fact, becomes more private when removed from public street. i. Hypos: i. Suitcase sitting on sidewalk, cops have PC? Need W. ii. Suitcase in trunk? Can open it. What if find another container inside it? 1. Need independent basis for PC to search that container j. Perverse effect: b/c police resource-strained, anything that lowers search costs of some tactics raises costs of other tactics, and police will reallocate appropriately. So if had W req for cars, thus raising costs, cops would maybe just get W and search houses instead k. Mobile homes: automobile exception applies. See Carney (p.502) i. Reduced privacy expectation b/c so heavily regulated

Houghton: SCT, 1999, p.503 Background: Car stopped for speeding. In the front seat: driver, gf, and D. Cop saw driver had syringe in pocket. Searched car and found D’s purse on back set. Inside purse another container. Inside that container a compartment with meth. D admitted that all that belonged to her.

Lower court: had PC to search the car but no PC to search passenger’s purse, since no basis for believing that passenger was involved in any wrongdoing. Case: Was the search of the purse here const? Ruling: Yes, search okay.

l. Scalia sets out 2-step inquiry: i. Whether under common law search would have been unlawful ii. If no answer, then assess reasonableness of search by weighing govt interest vs. privacy interest m. Under common law: if customs officials had PC to believe ship contained illegal goods, could search the entire ship, including any container on the ship. No distinction on who owned the containers.

n. RULE: when there is PC to search car, police can search entire car and any container in car w/o needing individualized PC for each container i. And there is no distinction based on ownership o. Balancing interests: reduced privacy expectations in car; govt interests are substantial—since cars mobile, contraband could be permanently lost + those in cars often engaged in common enterprise i. Otherwise, would create odd incentive for criminal to hide drugs in passenger’s containers p. BOTTOM LINE: authority to search car includes authority to search containers within car, period. i. But what if purse was on her person while she was out of car? What about her jacket pockets—seems it depends on whether she’s wearing the jacket or not. See p.508 5. Arrests a. Arrests seen as special b/c large, physical invasion; large rep damage. i. May want W then to reduce invasions of liberty interests ii. Also, maybe to pacify suspects, show them the paper b. Common law rules governing warrantless arrests: i. Misdemeanors: generally not allowed. Exception: breach of peace committed in arrestor’s presence, as long as arrest made at time of the offense ii. Felonies: generally allowed 1. Arrestor had to have reasonable grounds (aka PC) to believe felony had been committed and that the arrestee had committed it 2. Felony need not have been committed in his presence c. Statutes governing warrantless arrests: i. Misdemeanors: generally allow if offense committed within arrestor’s presence ii. Felonies: same as common law d. Const: almost all arrests must be based on PC. Q is when W req. i. W req depends on where arrest takes place (home or public). Does NOT depend on seriousness of offense. ii. Post-deprivation remedy: if no W, then D may assert his right to judicial determination of PC w/in 48 hours. See McLaughlin (p.515) e. Remedies: i. What if arrested w/o W unconstitutionally? No exclusionary rule for the arrest itself, not immunized from prosecution, not immunized from future arrests / prosecutions ii. Damages? What’s your damage though? Would’ve gotten W and then arrested you anyway. The extra 2 hours of liberty? iii. Maybe could argue that extra 2 hours could’ve meant no / less evidence turning up, so exclude that evidence iv. See fn 18, p.511 – exclude evidence resulting from the arrest f. Arrests outside homes:

Watson: SCT, 1976, p.511 Background: cops arrested D in restaurant. Had PC to arrest but no W. Case: Was the warrantless arrest const? Ruling: Yes.

i. Fed regs allow warrantless arrests for felonies. Lots of statutes allow such arrests. ii. Common law allowed it—see above. Almost all states allow it. 29 Vikas Didwania Winter 2009

iii. And no requirement for exigent circumstances iv. Cops still have incentive to get W, since safer about their PC judgment v. Powell concurrence: odd that arrest, which is essentially the same as a seizure, is governed by diff provisions than searches, when 4A speaks to both equally. Plus odd that restrictions upon arrests are less than for searches. 1. But strong historical and policy justifications for warrantless arrests. 2. Don’t want to make cop wait to arrest a felon. Exigent circumstances. vi. Marshall dissent: felony at common law and felonies today bear little resemblance. Many CL misdemeanors classified as felonies today 1. And can have an exception for exigent circumstances 2. Plus no need to cut investigations short if W req. Once get PC, can keep investigating, and then just get W when decide to arrest 3. Or just get the W and wait until gather more evidence. Unlikely that W will become stale—since will either believe suspect committed crime or didn’t vii. Takeaway: seems privacy interests receive more protection than liberty interests. And maybe class effects: rich have more private places but everyone has same liberty interests g. Arrests inside homes: i. See Payton (p.516, 1980) – W req. If W necessary to look for property in home, also necessary to look for people 1. Lots of flowery lang about home 2. Note also that arrest W carries implicit W to enter home and search it for the suspect but only when believe suspect is within. 3. So can’t get arrest W, wait for suspect to leave, and then search the home 4. But there is exception for exigent circumstances 5. If didn’t require W, then cops would just go in and arrest w/o W, then search as incident to arrest. Would really never need search W’s for the home ii. See Steagald (p.517, 1981) – search W req if arrest will be in third party’s home. 1. Cop went to D’s home to execute arrest W for Lyons. Found lots of coke instead. 2. RULE: arrest W allows cops to enter and search suspect’s home. But arrest W for suspect does NOT allow cops to enter third party’s home, even if have PC to believe suspect will be found there. h. Arrests for misdemeanors:

Atwater: SCT, 2001, p.518 Background: Seatbelt ordinance violated. Nonjailable but ordinance said that officer may arrest. Officer arrested this woman (very angry at her). Case: Is it const to arrest w/o warrant here? Is it const at all to arrest here (given low severity of crime) Ruling: Yes and yes. Confusing b/c Court switches btwn Issue 1 and 2. Seems that b/c it holds that can clearly arrest even for such small offenses, can arrest w/o a W.

i. Court employs Scalia’s 2-step test: common law and then balancing 30 Vikas Didwania Winter 2009

ii. Common law: only warrantless arrests for misdemeanors when breach of peace. Court: history is actually very unclear, lots of evidence that this authority was extended beyond breach of peace 1. Also looks at state and fed statutes at founding iii. Balance: here, big state interest is in clear rules. How to distinguish what crime is minor vs. major? Exact same conduct can have different punishments depending on repeat offenders, what prosecutor decides to charge, exact weight of the drug, whether officer knows all the penalties, etc. 1. Note that here Court is starting to speak to the second Q (about whether Const to arrest at all) 2. Can’t really create a rule that can only arrest for major offenses, too hard to administer iv. Finally: state of the world isn’t so bad for D. Gets 48-hour review, lots of states independently restrict arrest authority for small crimes v. O’Connor dissent: warrantless misdemeanor arrests don’t have clear history, so balancing. Arrests are very invasive for individuals, with lots of detrimental collateral effects. Govt interests here not that strong. 1. RULE: for fine-only offenses, officers should issue citation unless specific and articulable facts that reasonably warrant the additional intrusion 2. Me: unclear whether this refers to warrantless or arrest. I think arrest—but can cops every arrest w/o warrant? Seems so. vi. Aside on rules v. standards and what constrains police behavior if give them such wide discretion (politics). See notes p.43-44 i. Whren (p.528, 1996) – PC is sole const req for arrests. Officer’s motive for making the stop does not matter (e.g. stop b/c of speeding but really think you may be carrying drugs) j. Criticism of the 2-part test: no evidence that 4A was supposed to incorporate common law k. Criticism of Court’s preference for rules over standards: i. O’Connor’s standard seems to be just as administrable: arrests presumptively reasonable for serious crimes and not for minor offenses ii. If anything, police are least likely to need clear rules. They have lots of legal training. iii. AS: even standards are converted into series of rules by actors l. Arrests w/o PC: allowed in rare circumstances, such as for arrests of material witnesses. See Awadallah (p.530) 6. Searches incident to arrest a. RULE: search arrestee’s person plus the grabbable area i. And NO PC necessary. Search presumptively reasonable. b. Book has development of case law on p.531 c. Justifications: i. Officer’s safety – close range for significant time ii. Evidence destruction d. Effect: arrests much more valuable now. Maybe strategically will arrest b/c each arrest now an opportunity to search for evidence i. But arrests are also huge hassle, lots of paperwork and such

Chimel: SCT, 1969, p.532 31 Vikas Didwania Winter 2009

Background: Cops had arrest W for D for burglary. Waited inside his house until he arrived, then arrested him and thoroughly searched the entire house for an hour, seizing lots of evidence. Case: Cops did not have search W for house. Was warrantless search const as a search incident to arrest? Ruling: No. Court establishes rule about D’s person and the grabbable area.

e. Court: history suggests narrow search authority. Plus the prior, very broad rule, was based purely on a tiny hint in a case, elevated to dicta, then a holding. i. Odd incentive effect: cops will wait until suspect is in his home to arrest him, so they can search when don’t have W (or even PC) to search the home ii. Plus slippery slope: if can search the whole house, why even require arrest within home? If he’s arrested on the street, search his home as well? f. Strong history of requiring W even if have PC. g. But small exception for arrestee’s person and immediate area: i. Protect officer, prevent him for effecting his escape, prevent destruction of evidence ii. These justifications clearly don’t extend to rest of the house h. White dissent: applies a pure reasonableness inquiry. i. Always reasonable for warrantless search when have PC and not practicable to get W. ii. When arresting, always strong possibility that confederates in other bedroom, destroying evidence or threatening safety 1. Here, e.g., after cops leave, wife could’ve destroyed the coins 2. And everyone agrees that had PC to search house. And would’ve gotten W, so why make them wait? iii. Basically: fact of arrest always provides an exigent circumstance i. Containers on people: can search them i. See Robinson (p.538) – D arrested and body searched. Found cig pack, opened it, found heroin. Search const. 1. Can’t justify this on search for evidence, since this was a traffic stop 2. Court says to protect officer’s safety—but what, a razor blade? 3. Also says strong pref for rules here, b/c quick ad hoc judgment 4. Dissent: slippery slope. Rifle through his wallet? j. Protective sweeps: if articulable suspicion, then protective sweep OK i. See Buie (p.540) – splits into two categories: 1. For areas immediately adjoining (such as closets in the room) – do a cursory sweep without any additional suspicion. 2. For additional areas not immediately adjoining – must have articulable suspicion that area harbors person imposing danger k. Searches of cars incident to arrest: i. Belton (p.541) – arrested driver for drugs. Court upheld search of car and pocket of jacket on the back seat. ii. Rule: may search passenger compartment and glove compartment of the vehicle and any content of the containers found therein 1. But CANNOT search trunk of car

2. But if search passenger compartment and find drugs, then probably have PC to search entire car under Acevedo iii. Note that significant overlap with Acevedo, but that’s b/c Belton decide decade earlier than Acevedo. iv. Difference is that under Belton can search even though no PC that evidence will be found. So if arrested for speeding, can still search car. Under Acevedo, would need indy PC that drugs would be found there.

Thornton: SCT, 2004, p.541 Background: Cop pulled up behind D, who just left his car. D consented to pat down, cop found drugs and arrested. Cop handcuffed him and placed him in the cop car. Searched D’s vehicle as incident to arrest and found gun. Case: Does Belton govern when cop does not make contact until person arrested has left vehicle? Ruling: Yes, same rule. As long as occupant or recent occupant, Belton applies.

l. NOTE: the holding here is plurality but seems to govern since narrower than Scalia’s rule m. No basis to conclude that span of area within control is determined by whether officer initiated contact when in / out of car n. Plus the justifications (safety, evidence) stay the same, since suspect is still near the car. Allowance for search is based on the fact of the arrest and the danger the proximity poses—and all that is still true here. o. And again, value rules here. Hard to determine where to draw line for “recent occupants” i. But not all parts of the passenger compartment likely accessible to arrestee who is a recent occupant? ii. Doesn’t matter, clear rule; don’t want cops to have to make judgments about what may be within reaching distance p. Scalia concurrence: risk here that he could grab weapon / evidence was remote in the extreme. Search under Belton line unjustified: i. Clearly absolutely no risk here, especially no greater than suspect in home breaking free and running to next room. And Court’s held that cop can’t search next room w/o suspicion ii. Govt argues that cop could’ve searched car at time of arrest and only sensible to first put him in squad car. Scalia: assumes that search must take place iii. Govt: prefer bright-line rule. Scalia: practice is to always put arrestee in back of squad car, so don’t even need Belton. It has created an entitlement for exploratory searches iv. New rule: allow searches when reasonable basis to believe that evidence of the crime of arrest will be found in car v. AS: rule could be broader / narrower than majority rule 1. Narrower: can’t just forage around anytime, need suspicion that will find additional evidence 2. Broader: no need to worry about danger and limit yourself to grabbable area q. Stevens dissent: no risk here of danger / evidence destruction r. Criticism of pref for rules: Court says rules better when officer safety a concern. But officer safety itself is a fact-bound question based on a standard. s. Inventory searches of cars: i. Rule: if search standardized (have some regular practice) about when / how searches will be done, and not motivated by desire to obtain evidence, then OK 33 Vikas Didwania Winter 2009

ii. See Bertine (p.549) – D arrested and car impounded. Cops did an inventory search in order to protect his property. Court upheld. t. Under Belton / Thornton line, arrest is required. See:

Knowles: SCT, 1998, p.550 Background: D issued citation for speeding. Cop searched car as incident to citation. Case: Does Belton / Thornton apply when person cited instead of arrested? Ruling: No. Draws a line at arrest.

i. Neither of the justifications (safety, evidence) apply in this situation ii. Safety: Routine traffic stop is brief. Clearly still some threat to safety, but it doesn’t justify such a large invasion iii. Evidence: no additional evidence necessary. Once citation written, that’s all the evidence necessary to prosecute that offense. u. Perverse effect: cop could say you’re under arrest, search your car, and if finds nothing change his mind and just write you a citation i. Remember, completely discretionary for cop to cite vs. arrest. No Const limitations there to arrest or to change his mind. ii. But Court often unwilling to get into cop’s mind 7. Consent a. USE Consent CHART b. Consent rates are very high (>90%, even when guilty) i. See above for discussion of why ii. And people generally feel negatively affected by the encounter (see p.681) c. If consent, no PC, no W, no 4A constraints on the ensuing search d. Note: saying no to consent is NOT enough to establish PC. That would be a troubling catch-22 e. Rule: legally effective consent i. Voluntary, no coercion or duress, as determined by TOC ii. Court stresses want TOC here, no rules, even though in the incident to arrest cases stressed desirability of rules

Bustamonte: SCT, 1973, p.668 Background: D subject to traffic stop. Cops ask driver if can search the car, and he says “Sure, go ahead.” Case: Was there valid consent here? Ruling: Yes.

f. First: govt beards burden of proving consent was voluntarily given g. Second: what must the govt show? i. TOC / question of fact. That it was voluntarily given, not product of duress or coercion ii. Fact that it’s by a cop doesn’t automatically make it coercive 1. Miranda assumes such coerciveness but court distinguishes. Situation here is different—not in custody, no inherently coercive tactics iii. Knowledge of right to refuse consent is one factor but is not required 1. Imposing this req in all consent cases would be impracticable

2. Different from formal trials or custodial interog (Miranda) so don’t need to make them so formal. More like casual conversation iv. Knowledge and intelligent waiver is NOT the standard here. That’s for trials and interrogations. Not about a fair trial at all v. But won’t the rich / knowledgeable get a better deal? More likely to know the rules of the game. 1. Court: TOC. So can consider all those factors. vi. AS: Court worried that if req cops to give info, will reduce effectiveness of consent searches. More ppl say no. 1. But evidence shows warning don’t matter, b/c ppl don’t believe them. See p.675. vii. Takeaway: when in formal process, get lots of info. h. Marshall dissent: consent can’t be considered a meaningful choice until he knows that he has a choice. Prosecution can show this in many ways (from cop asking D, other evidence that D knew) i. Third party consent: above, D did not own the car (merely driver)—can he consent to search of the car? Yes. i. See p.676 – assumption of risk. Owner assumes risk that police would be permitted to search the area in which he had granted control to another ii. Consent of co-tenant sufficient. See Matlock (p.676) iii. See Rodriguez (p.676) – third party can grant consent to property when police reasonably believed that such party had authority over the premises, even when no such authority existed 1. Woman said she’d been assaulted and led them to apartment, referring to it as “our.” She unlocked the door and cops found D with weed. She did not have authority over the apartment but allowed in evidence 2. Scalia: never have required cops to be right, but only reasonable 3. Dissent: third party consent based on assumption of risk (that owner authorized other to grant consent). That clearly is not true here iv. When parties with authority differ:

Randolph: SCT, 2006, p.*2 Background: Wife and husband in apartment, cops believe drugs in there. Husband refuses consent to enter / search, but wife then grants. Cops find drugs. Case: Was wife’s consent adequate to allow the search? Ruling: No.

1. Physically present co-occupant’s refusal governs. Katz requires us to look to social custom. And in everyday life, under social customs, if you get conflicting consent, you wouldn’t enter 2. Dissent: individuals that share places assume the risk. Majority’s rule is especially dangerous in domestic abuse cases 3. AS: what different should physical presence make? a. Court: cops can’t draw the husband out of the house in order to get around rule j. Scope of consent: in Bustamonte, even if consents to search of car, how do we know consenting to search of the trunk? “Sure, go ahead” doesn’t tell us much 35 Vikas Didwania Winter 2009

i. Rule: what an objectively reasonable observer would think consent extended to ii. See Jimeno (p.678) – objectively reasonable for cop to think consent extended to search of paper bag 1. Unreasonable to think consent extended to searching locked suitcase by breaking it open iii. Note that a suspect may delimit as he chooses (search everything but the bag) k. Consent and seizure: i. Seizure is when person no longer feels free to go. Similar facts might tell us when D no longer believes he can refuse consent (i.e. it’s coerced) ii. Presumption then would be that after seizure, consent should be presumptively coerced. But Robinette rejects this.

Robinette: SCT, 1996, p.679 Background: D stopped for speeding, stepped out of car, and issued verbal warning. Then asked if cop could search his car, and said yes. Drugs found. Case: Must a lawfully seized D be advised that he is free to go before his consent will be recognized as voluntary? Ruling: No.

iii. Voluntariness is question of fact, TOC. Court cites to a lot of cases noting importance of TOC iv. So here, no per se rule that must give this notice for consent to be considered voluntary. Must evaluate all the circumstances. v. AS: opinion is completely empty. What circumstances am I looking for? In Bustamonte, at least Court gave some guidance (education, wealth, whether right to refuse known, etc.). Here, giving him the notice will be a factor to consider l. Consent before searches: in public housing, tenants have to sign away consent to searches ahead of time. Coercive? TOC? See p.682 i. At least for parolees, this is permissible. See Samson (p.S146) e. Reasonableness alternatives i. Generally, W + PC = reasonable ii. In some situations, Court uses a more open-ended reasonableness inquiry iii. Can be more or less demanding than PC + W 1. More: See Winston (p.553) – needed to search for shopkeeper’s bullet, lodged inside the suspect / victim. Even with PC and W, would be unreasonable 2. Less: generally, think appellate courts will defer to trial court, which will defer to police. Basically RB review. 3. So unclear if standard per se is pro-govt. 4. AS: plus, if judges are pro-govt, they’d just write pro-govt rules, instead of switching to pro-govt standards from anti-govt rules 5. Book: interest balancing (standards, reasonableness inquiry) often yields pro- govt results not b/c of the methodology, which is neutral, but the circumstances a. Court uses reasonableness and TOC when PC / W seem too stringent b. Cases where PC seems too low, however, are rare iv. Rules v standards debate 1. Good: Case by case creates a dialogue between judges and cops, flexible, especially when trust decisionmaker with discretion, judges don’t have to predict aimlessly into the future (info problems) 2. Bad: courts are supposed to provide convincing rationale for holdings. How can they is simply balancing interests? And decision costs, uncertainty / notice, arbitrariness / fair consistent application v. Administrative inspections [very confusing] 36 Vikas Didwania Winter 2009

1. Court balanced private and govt interests 2. See Camara (p.554, 657 1967) & See (p.554, 1967) – regulatory inspections to enforce safety codes are at the core of 4A concerns. a. 4A is not only about protecting those suspected of criminal wrongdoing. Anomalous to say individual is only protected when suspected of criminal wrongdoing 3. Rule: in determining whether an inspection is reasonable, balance the need to search against the invasion a. And inspections in general are reasonable (see p.556 for all the reasons) b. Need PC and W but no individualized suspicion. So if have PC + W for the whole area, then can search each dwelling i. And PC exists if reasonable standards govern the inspections 4. Inspections of closely regulated biz reasonable even w/o PC or W OK when 3- factors met: a. One: substantial govt interest informing the regulatory scheme b. Two: inspections must be necessary to further the scheme c. Three: program must provide adequate substitute for a W (e.g. informing biz owners that subject to inspections and limiting scope of inspections) d. See Burger (p.656) – law required car junkyards to maintain records of cars and make them available for warrantless inspection, in order to deter car theft. e. Perverse effect: if this weren’t law, state would just pass very broad reg schemes that would almost always establish PC 5. Basically, in other contexts, PC defines reasonableness of search. Here, if search reasonable, then have PC. vi. Stop and frisk 1. Rule: a. Brief investigative stop on reasonable suspicion that crime is afoot b. Pat down on reasonable suspicion that the person is armed and dangerous, limited to places reasonably necessary to find a weapon

Terry: SCT, 1968, p.557 Background: Cop observes three guys planning a stick up. Four stages: observation (clearly no 4A concerns), questioning (Bostick feel free to leave governs), stop (grabs Terry, spins him, clearly seizure), and frisk (pats down D’s pockets). Cop had reasonable suspicion to believe criminal activity afoot and suspects armed and dangerous—but no PC. Case: Whether it is always unreasonable for cop to seize person and subject him to frisk, w/o PC or W? Ruling: No, they were const.

2. Frisk: limited search for weapons 3. First: clearly search and seizure here a. Seizure when grabbed D, and search when patted him down 4. Second: reasonableness inquiry a. Me: unclear why Court thinks usual PC + W inquiry isn’t applicable. Something about how common this conduct is among officers. And can’t be subjected to W req, since spur of the moment i. Cops on the beat everyday are trying to prevent crime by using these tactics. That’s what you’re supposed to do b. Inquiry for search: would the facts known by the officer warrant a man of reasonable caution in belief that action taken was appropriate (objective) c. Govt interest: preventing crime, officer safety, safety of surrounding public d. Private interest: search here was strictly circumscribed to justify the specific exigencies, less than a full search so not full invasion 37 Vikas Didwania Winter 2009

i. Here, just pat down of outer clothing. No putting hands in pockets, etc. Of course, unless he feels what may be a weapon, he can reach into the pocket and get it (has PC at that point) e. Inquiry for frisk: officer has reason to believe that he is dealing with armed and dangerous individual, then will allow a reasonable search for weapons, even without PC to arrest the individual 5. For criticisms of exclusionary rule, see p.559-60 6. Harlan: if stop is reasonable, then automatic right to frisk if have articulable suspicion of a crime of violence 7. Douglas dissent: Const requires PC + W, including here 8. Note: most Terry cases involve either preventive policing or drug crimes (victimless crimes) – since very hard to manufacture PC in these situations 9. Big concern with Terry seems to be racial discrimination, since cops have so much discretion to stop and frisk anyone on the street. And no subsequent judicial review in most of those instances. 10. Plain feel doctrine: if LEO is lawfully patting someone down for weapons but it becomes immediately apparent that what they are feeling is contraband then they can seize it. Plain feel exception, just like the plain view exception a. BUT cop cant manipulate an object to figure this out—must have immediate PC to believe it is contraband from basic pat down for a weapon. See Dickerson (p.577) b. Court is much less willing to extend Terry if officer safety isn’t a concern. In Dickerson, felt the lump during frisk and knew not a weapon. Then manipulated and realized it was crack. 11. Boundaries of Terry: seizure a. Arrest and more custodial seizures requires PC. Terry ONLY applies to seizures, not arrests. See Dunaway (p.570) – D taken into custody, and while not under arrest, would not have been let go. Taken to police station. Court holds not the type of stop covered by Terry. b. Basically, Court refused to extend Terry to all seizures short of arrest. Didn’t want state law, which defines what an arrest is, to define 4A constraints here. So any significant seizure is outside scope of Terry 12. Boundaries of Terry: the crime afoot a. Need not be armed robberies, has been extended to detention of people at airports suspected of drug crimes b. See Royer (p.571) – D fit drug courier profile (appearance, mannerisms, luggage, one way ticket, etc.), so cops detained him for 15 minutes. Exceeded Terry’s scope c. EMPHASIZED: fact that removed to interrogation room and intrusion was more than necessary (instead of rifling through bag for 15 mins, could’ve used narcotics dog) d. Stop can include asking for identification. See Hiibel (p.607). i. But the reason for the stop itself can’t be to ask for ID. Must have some indy basis for RS, and in course of Terry stop, ask for ID. See Brown (p.608) 13. Boundaries of Terry: length of stop a. Idea is that stop and then ask questions. Reasonable time for LEO to confirm or dispel his suspicions. If confirm, presumably has PC. b. See Royer above – 15 minutes too much c. See Place – cops seized suitcases suspected of containing drugs for 90 minutes. Court held detention of the property was too long i. NOTE: suggests that Terry can be applied to property as well ii. Court: limited seizure based on reasonable suspicion may be allowed if supported by special law enforcement need for greater flexibility 38 Vikas Didwania Winter 2009

d. See Sharpe (p.574) – cops attempted to stop car and truck. Truck then shoots between them, almost crashing into the cops. So some cops take off and pull over the truck, while DEA waits for car. Then, after about 20 mins, DEA heads to truck to search it. Govt: length of his detention did not exceed Terry, smell of weed then provided PC, and automobile exception to W. Court said within Terry’s bounds i. RULE: whether the police diligently pursued means of investigation that was likely to confirm / dispel their suspicions quickly ii. Marshall: here, way pickup acted prevented DEA from working quickly (i.e. if he had just stopped along with the car). So he was blameworthy. But majority doesn’t use this analysis, only care how cops acted (diligently) 14. Automobiles a. OK under Terry to order driver out of the vehicle. See Mimms (p.575) i. Court: even though no reason to suspect foul play (just a traffic stop), practice adopted for officer safety ii. Book: Court is much more willing to allow Terry-style intrusions, with bright-line rules, when dealing with cop safety b. OK to also ask passengers out of the vehicle. See Wilson (p.575) i. Court: passenger is already stopped. No major invasion to have them get out, and strong interest in preventing them from grabbing a gun c. OK to search parts of passenger compartment where weapons may be hidden as part of Terry stop if cops have reasonable suspicion that suspect dangerous. i. See Long (p.576) – car ended up in ditch and cops went to investigate. Saw knife on floorboard, so subjected him to Terry pat-down, finding nothing. Then looked inside car and saw something protruding from armrest, so lifted it to find drugs ii. Court: OK, b/c of officer safety. Stopped suspect will have access to any weapons inside. iii. Dissent: less intrusive means here of detaining D while getting the car registration themselves 1. Me: unclear if this is actually less intrusive if foraging through car for the registration 15. Meaning of reasonable suspicion (RS): TOC standard a. Reasonable suspicion can arise from info that is less reliable, and different in quantity and content than in context of PC. See White (p.578) i. In analysis, look to all the info the cop had right before the intervention. So if gets tip and then goes, and sees sketchy things happening, can take all that into account ii. Sources for RS: articulable facts + rational inferences + LEO experience. See Terry. iii. Note that in PC cases, LEO experience is NOT a factor b. AS: RS less demanding than PC which less demanding than POE which less demanding than beyond reasonable doubt. But RS more than inarticulate hunch.

J.L.: SCT, 2000, p.578 Background: Anon called in tip that young black male wearing plaid shirt at a particular bus stop. Cops responded and saw such a person, frisked, and found gun. Case: Whether an anon tip that person is carrying gun, without more, is sufficient for stop / frisk? Ruling: No, search and seizure here unconst. 39 Vikas Didwania Winter 2009

c. Note that cops here had absolutely no other reason to suspect D of any wrongdoing. Just standing at bus stop. Only that one random tip d. Court: whether the tip here had those indicia of reliability as required by White. e. Court: considered White to be a borderline case, and there much more extensive info. Here, tip provided no predictive info, and so cops had no basis to test informant’s knowledge or credibility f. Govt: but tip accurately described person, his location i. Court: tip must be reliable in its assertion of illegality, must provide RS that something illegal happening. Here, didn’t do that at all g. But then Court hedges: says lower indicia of reliability required if bomb tip is called in; or in areas with diminished expectations of privacy (schools, airports) i. So nature of the threat matters (as opposed to in PC) ii. But it’s unclear whether there’s a direct correlation—as threat increases, RS req decreases. It’s a possibility, but Court here only said that may vary RS with threat. h. AS: but threat here pretty high, at least as compared to White (carrying drugs in suitcase). Gun in public. So maybe here tip needed to be just slightly more predictive i. See also Arvizu (p.582) – border patrol cops stopped minivan b/c had inkling that might be carrying drugs (kids were waiving!). 9th Cir held that all the facts were completely innocuous, so no RS i. Court: reversed, said RS standard satisfied ii. Book: maybe Court didn’t get it wrong. Cops are likely better at recognizing suspicious behavior than analyzing the bases for their suspicion j. Suspect flight & RS:

Wardlow: SCT, 2000, p.583 Background: Caravan of cop cars driving through high crime area. Unclear whether cars marked but the cop was in uniform (supposedly). As car passes, cop sees D standing next to building holding opaque bag. D looked in officer’s direction (unclear if actually saw him) and fled. Cop chased him and then frisk for weapons (b/c in his experience weapons and drugs go together). Case: Did cop have sufficient RS that criminal activity afoot to perform Terry stop? Ruling: Yes.

k. Court: individual’s presence in high crime area isn’t sufficient to establish particularized suspicion. i. But it’s a factor consider ii. And also consider his unprovoked flight upon noticing cops 1. Mere refusal to cooperate can’t raise suspicion enough to detain. 2. But flight is different from mere refusal iii. But innocent reasons for flight? Court: yes, but even in Terry there could’ve been perfectly innocent reasons for the conduct. B/c of the possibility for either innocent or illegal conduct, allow a brief investigative stop. l. Stevens concurrence / dissent: tons of perfectly innocent reasons for a flight, especially b/c here unclear that it was in response to cop. Maybe wants to get home in time for dinner. Even if in response to cop, innocent reasons (like didn’t want to be a witness). But there are unquestionably circumstances in which person’s flight is suspicious i. So have to evaluate all the contexts and circumstances 40 Vikas Didwania Winter 2009

ii. Has good list of all the various circumstances iii. Concludes no RS here, after going through all the facts, which Stevens thinks are too vague and lots of missing facts m. AS: RS is something significantly less than 50/50. And here, indeterminate, so say 50/50. But maybe mean uncertainty, rather than risk, in which case can’t say much at all i. So why does the majority seem so sure that flight due to wrongdoing and RS? Judges don’t know much about realities on the ground so just defer to cops. ii. And cops: harass minorities n. Lots of concerns about race here. High crime areas are usually lots of minorities. Some sense that minorities run when see cops b/c just don’t want to be harassed. So then no RS of wrongdoing. vii. Profiling 1. Cops use profiles all the time, such a drug courier profile. See Sokolow (p.590) a. Court said cops can use profiles or not, won’t affect the RS analysis. Still need facts that lead to RS, regardless of whether those facts are part of a profile b. Dissent: use of profiles raises risk of subjecting innocent people to harassment and detention 2. Profiles serve as proxies for wrongdoing, since often can’t observe directly the criminal wrongdoing 3. Does profiling increase or reduce cop discretion? a. Use of profiles: if using, then discretion cabined. But may have discretion in whether to use. And if no profile, then lots of discretion b. Generation of profiles: when already have one through dept, then less discretion than if making it up on your own. But the point of making a profile is to cabin discretion; otherwise just not using the profile. 4. Normative matters about profiling – doesn’t work (or will be ineffective b/c criminals will change their profiles), backfire (community backlash), profiled people are specially harmed (use random checkpoints), profiling inevitable, a. Maybe can minimize bad profiling: can’t be based on race, but maybe will still use race in unofficial manner (see p.605); change personnel policies; shrink criminal law (but if get rid of vague ones still have problem of clear, broad ones—55 mph; see p.606) 5. Racial profiling a. Sometimes inevitable and very good, such as when searching for specific suspect. b. Randall Kennedy (p.592) – subjects of racial profiling basically made to pay a racial tax. But this is unfair. Should instead raise the tax equally for everyone—hire more cops to do individualized searches or inconvenience everyone at checkpoints c. Samuel Gross (p.593) – everyone used to say against racial profiling until 9/11. Then many thought Arabs should be subject to special scrutiny / detention etc. i. Defn: whenever LEO questions, stops, etc. person b/c believes that members of the person’s racial group are more likely than population at large to commit the specific crime ii. What about DOJ interviewing Arab men, trying to get info about terrorism? Said not suspected of doing any criminal wrongdoing, just want to interview. Racial profiling? 1. Difficult to say. See bottom of p.595 2. See also Brown (p.603) – assailant described as black man with scarred hand, so cops checked hands of all blacks in the area.

iii. Most of the pain of profiling is caused by treating law abiding people like criminals. Should be very suspicious of racial profiling 1. Stigmatizes that group, reinforced neg stereotypes d. DOJ policy on profiling (p.597)

Whren: SCT, 1996, p.597 Background: Cops pulled over D for failing to signal while turning and driving at “unreasonable speed.” Then pulled up and saw crack cocaine in D’s hands. Clearly this was a pretextual stop. Case: When cop had PC to stop car, does 4A require that a reasonable officer in that situation would’ve stopped the car for the traffic violations Ruling: No, individual officer’s subjective intentions are irrelevant to the 4A validity of traffic stoip that is justified objectively by PC to believe traffic violation has occurred.

e. D: since some many traffic regs, cop will be able to stop anyone at any time. So want the reasonableness standard above of whether reasonable cop would’ve stopped for the traffic violation i. Counter: isn’t it always reasonable for cop to enforce the law? Maybe not if hasn’t been enforced at all in last 10 years f. Court: Const prohibits selective enforcement of law based on race. But that’s an EPC inquiry. Subjective intentions play no role in ordinary, PC analysis. i. Whole point of 4A reasonableness inquiry to move away from subjective intent—allow the search whatever the subjective intent of the officer ii. Plus test in unworkable. How to figure out collective consciousness of LEOs? iii. D: but it’s clear here. DC ordinances prohibit plainclothes officers in unmarked cars (as here) from traffic stops unless immediate threat to safety of others. 1. Court: can’t base 4A on police practices that vary greatly among jurisdictions a. Counter: with Court’s rule, 4A protection will vary based on expansiveness of locality’s crim laws 2. AS: why did DC have this rule? Probably political pressure—lots of motorists wanted warning that cop was around iv. Slippery slope: and no way of knowing when certain regulations become so expansive as to come under this reasonableness inquiry 1. Me: isn’t this exactly what Terry did? g. Successful EPC claim: see Kail (p.602) – prostitute arrested for not having bell on her bike. Court did RB review and said no relationship between bells and prostitutes (which dept policy was specifically targeting) i. Dissent: majority’s position would prevent prosecution of Al Capone for tax evasion h. Expansion of substantives crimes / void for vagueness:

Morales: SCT, 1999, p.*4-5 Background: Anti gang loitering statute that allows cops to disperse gang members. Vague definitions of “gang member” and “loitering” and what a “removal order” does. Case: Statute const? Ruling: No, void for vagueness due to notice (to citizens) and arbitrariness (discrim enforcement by cops).

6. As to arbitrariness point, don’t necessarily solve that problem by making statute less vague. Speed limits are very clear but if set below the average speed of traffic, then can allow arbitrary enforcement 7. Discussion about how ordinance was passed by a majority of minorities in the neighborhood to deal with gangs, so not necessarily a tool of racial suppression a. But have to think about distro of costs / benefits and intensity of people’s prefs, instead of just one person, one vote b. Here, all the older people could’ve voted for it, knowing they wouldn’t be searched anyway. So passing on the costs to someone else. viii. Special needs 1. An interest-balancing approach, similar to that of Terry, for administrative inspections (see above), regulatory searches, and other “special needs” beyond those in the typical law enforcement context. a. To avoid PC, W, or particularized suspicion b. But not that in special needs situations, don’t need any. Court will sometimes relax or 2 or 3 or get rid of 1. 2. 2-part inquiry: a. Is there a special need? i. Pervasive problem, beyond just general law enforcement, that can’t be addressed through traditional means b. If so, then balancing: i. Strength of govt interest – really serious public interest, such as drunk driving ii. Level of intrusion – how disturbing intrusion is. 1. Same inquiry as what’s a search 2. Objective AND subjective 3. Objective – look at what cops are actually doing (just brief stop, etc.) 4. Subjective – fear and surprise iii. Efficacy – how well does this practice further the govt interest 1. Plus look at amount of discretion a. This cuts against (ii) though. Less discretion (more intrusion) is better. Response: targeting harm is especially intrusive 2. But note that the roadblocks with the lowest hit rates below were upheld 3. Schools – usual PC, W reqs unsuitable for maintenance of swift and informal disciplinary procedures at schools. See TLO (p.624, 1985) (search of a student’s purse to enforce anti-smoking rules) 4. Supervise probationers – see Griffin (p.624, 1987) (warrantless searches of probationer’s home for contraband on RS) 5. Public employees – warrantless, reasonable searches of employee’s office, desk, or file cabinets OK to maintain proper operation of workplace. See Ortega (p.624, 1987) a. Me: doesn’t apply to private employers, since wouldn’t be state action 6. Prisoners – upheld condition of release which required parolees to agree ex ante to submit to warrantless and suspicionless searches. See Samson (p.S114, 2006) a. Requiring individualized suspicion would give parolees greater opportunity to anticipate searches and conceal criminality b. Cite to Griffin and noted that parolees are even more dangerous than probationers c. Private interest: parolees have diminished expectation of privacy d. Govt interest: unclear i. But lots of states and feds supervise effectively with an individualized suspicion req. Court: irrelevant (unclear) 43 Vikas Didwania Winter 2009

e. Too much discretion? No, general CA law prohibits arbitrary or harassing searches. f. Dissent: no special needs here (just general criminal enforcement), no individualized suspicion i. Court: never limited suspicionless searches to special needs or programmatic purposes 7. Roadblocks a. Whether cops may seize group of drivers and passengers in a particular location at particular time w/o any reason to believe that particular driver / passenger has violated the law b. Border searches: upheld suspicionless stopping of cars at permanent checkpoint on the border. Govt need is high and intrusion is low. See Martinez-Fuerte (p.625, 1976) i. See also Montoya (p.640) – cops had RS that D smuggling drugs in digestive canal. Detained her for 16 hours to let it pass through, since she refused to submit to X-ray. Court upheld her detention, even though so long, b/c of wide discretion of govt at international borders ii. Me: shouldn’t this be under Terry? Wasn’t this a Terry stop? iii. See also Flores-Montano (p.641) – border patrol dismantled car to search for drugs, had only PS. OK, Court notes that searches of cars less intrusive than of persons. iv. Basically, free reign over border searches of vehicles c. Too much discretion: see Prouse (p.625) – Court struck down random, suspicionless stops to check for driver’s license. Said stops that didn’t involved unconstrained discretion may be OK d. Stop upheld: see Sitz (p.625) – all cars stopped at roadblock to check for drunk drivers. Upheld b/c of high state interest given magnitude of the problem and all cars were stopped (no discretion)

Edmond: SCT, 2000, p.626 Background: At checkpoint, cops stop predetermined number of cars. Looks for impairment and plain view of car, and then dog sniff. Less than five minutes, and no discretion on which cars to stop (every nth car). May conduct further search if consent or have appropriate particularized suspicion Case: Is this sufficiently a special need allowing exemption from usual req of particularized suspicion? Ruling: No, roadblock violated 4A.

e. Court: primary purpose here was ordinary criminal wrongdoing, which is insufficient govt interest i. But what about threat of terrorist attack, isn’t that general criminal enforcement? Yes, but may make exceptions for emergencies ii. And primary is very important. Otherwise, cops could always just add in a driver’s license and sobriety check and make every checkpoint const. iii. Distinguished the above cases iv. Martinez – govt’s interest in policing nation’s borders, case is specific to the border context v. Sitz – reducing immediate hazard of drunk drivers, obvious connection between the practice and highway safety. Plus, again, magnitude of the problem 1. But drugs are huge problem? Yes, but that’s not the only factor. Court: Must do the 3-part balancing above 2. But doesn’t getting drugs off the street increase safety as well? Court: too high level of generality 44 Vikas Didwania Winter 2009

vi. Prouse – ensuring that only those qualified to operate registered cars are doing so f. All this is based on the level of generality chosen. If say purpose of those roadblocks was to ultimately arrest criminal wrongdoers, then this roadblock fits in. Court: this is too high level of generality g. D: in Whren, said will not look into the subjective purposes of a stop i. Court: separates out special needs. Says subjective intentions don’t play a role in PC analysis. But programmatic purposes are relevant to special needs inquiry, where there is no individualized suspicion h. Rehnquist: thinks general special needs exception for all roadblocks, regardless of purpose, as long as discretion limited. Just balance the interests + how well furthers that interest i. Book: when roadblock affects all drivers (no discretion), can more fully depend on the political process constraining them; so courts don’t need to get as involved j. Terry stops vs. roadblocks i. Seems Terry stops, with all their discretion, are more troublesome for discriminatory application ii. See discussion above in Morales about how can concentrate costs on the few (the ones stopped and harassed in Terry) iii. Roadblocks present much less of a problem—diffuse costs iv. So maybe Court got it backwards in upholding Terry but striking down some roadblocks in Edmond k. Reactive roadblocks:

Lidster: SCT, 2004, p.635 Background: Some motorist hit and killed bicyclist. About one week later, at about the same time, cops set up checkpoint to try to gather more info. Stopped every vehicle for 15 secs, asked if had seen anything, and handed them a flyer. D was stopped and then cops noticed he was drunk. Case: Roadblock const? Ruling: Yes.

l. Special needs: distinguishes Edmond: info here elicited to help them apprehend not the vehicle’s occupants but other individuals. i. Here, individualized suspicion wouldn’t even make any sense m. Balancing inquiry i. Cars have demoted privacy expectations. Plus subjective invasion low, since stops like these unlikely to provoke anxiety 1. And 4A always allows cops to voluntarily ask people. Can approach them on the street. 2. But this is a seizure here. Court: yes, but very brief stop (objective) and invasion small / little reason for anxiety (subjective) ii. Govt interest: grave, investigate murder. And not just general criminal enforcement, since this was aimed at a specific crime iii. Means: set up around the same time, makes sense n. Slippery slope: give cops free reign to set up roadblocks? No, practical limits: resources and community hostility o. Stevens concurrence / dissent: i. Private invasion could be high – random stop at midnight could cause alarm ii. Ineffective – random sampling of drivers unlikely to provide useful info about hit and run 1. And not even same day, same time 45 Vikas Didwania Winter 2009

iii. Would remand for further inquiry into the factors p. Reactive vs. proactive – Terry style reasonableness inquiry is supposed to be about proactive policing. Yet Court strikes down roadblock in Edmond and upholds in Lidster i. AS doesn’t like distinction. All cases are reactive to some extent—something has happened and worried about something in future happening. Never really just general future crime prevention ii. Plus, say trying to catch drugs, is that reactive or proactive? q. AS discussion of bag searches in NYC subway system i. Special needs: analogize to airports? Borders? ii. Balancing: efficacy is questionable but doesn’t seem more invasive than airports iii. 2d Cir did uphold as legal r. Consent: can’t you say by driving on highway consent to random searches / seizures or by riding subway, etc. i. Maybe, but then slippery slope. By living in NJ, consent to searches of home, etc. 8. Non-police searches: a. See TLO above b. See Acton (p.641) – upheld random, suspicionless drug testing of school athletes i. Noted that specific to public school context, where govt acts as guardian and tutor. c. But see Miller (p.642) – struck down law requiring candidates for designated state offices to pass drug test i. Govt interest: seems low given no evidence of major drug problems among officeholders ii. Efficacy: low, can schedule drug test at any time d. Hospital personnel: see Ferguson (p.S114) – non-consensual searches by hospital personnel improper when at least some suspicion justifying the searches ix. Use of force 1. Deadly force – reasonable if meets 3-part test a. PC that suspect poses significant threat of death/serious physical harm / committed a crime involving infliction/threatened infliction thereof b. Necessary to prevent escape c. Warning if feasible

Garner: SCT, 1985, p.658 Background: Cop answered prowler call at night and saw someone running across backyard. Saw no signs of a weapon, shouted “police, halt” and then shot suspect. Father brought this § 1983 action. Case: Whether the use of deadly force here was Const Ruling: No.

d. First: is use of force covered under 4A? i. Yes, clearly. Governs when an officer may seize (when has PC), but also concerns how the officer executes the seizure ii. Why? For a seizure to be reasonable, have to balance govt interest with private invasion. 1. And the use of force (the how) plays into extent of invasion iii. Note: shooting someone is clearly a seizure. e. Second: when is use of deadly force reasonable? i. Can’t be anytime needed to discourage escape of any felony suspect. The govt interest just isn’t strong enough. 46 Vikas Didwania Winter 2009

ii. Slight majority of states limit use of deadly force for fleeing felons 1. Unlike Mapp, can’t say clear trend towards limiting use of deadly force 2. But still, long-term movement away from freely using deadly force iii. Majority of police departments have forbidden use of deadly force against non-violent suspects. 1. Looking at department policy very important b/c want to know establishing a workable rule 2. And no evidence that crime has worsened in those jurisdictions limiting use of force iv. Same critiques of all this polling as above in Mapp. f. Govt: common law allowed use of any force for felony suspects i. Court: 4A isn’t frozen to what common law allowed ii. Plus, at the time, most felonies punishable by death. And defn of felonies much more expansive today. iii. And at that time, no weapons really. Mostly, deadly force would be administered in hand to hand combat, where safety of officer clearly at risk g. Application: no PC here that suspect dangerous. Burglaries rarely involve physical violence (so didn’t commit a crime of violence) 2. Non-deadly – reasonable if: a. objective reasonableness under all the circumstances, including: i. Severity of the suspected crime ii. Whether suspect poses immediate threat iii. Whether he is actively resisting arrest or in flight iv. But not LEO subjective motive

Graham: SCT, 1989, p.663 Background: D went into store to get OJ b/c going into insulin shock. Cop thought armed robbery of store, so pulled him over. D ran around and passed out. More cops came, confusion, and D basically beat up. § 1983 suit, since exclusionary rule no good Case: Whether the use of non-deadly force here was Const Ruling: Establishes new rule and remands.

b. DCT had used 4-part test under prior precedent looking to substantive due process and whether conduct “shocks the conscience” c. Court: rejects the 4-factor test (b/c uses subjective intent) and instead prefers an objective TOC inquiry. All excessive force claims must be analyzed under 4A, not DPC. i. Pretty clear that this is seizure and 4A governs here after Garner. 3. Car ramming – same TOC multi-factor inquiry as Graham. a. See Scott v Harris (didn’t read) – cops tried to pull over for speeding, high speed chase, rammed car from behind, paraplegic b. Court: refused to categorize as deadly or non-deadly force. Used the multi-factor test and held force was reasonable: i. Consider suspect culpability in continuing to flee ii. Creating safety risk iii. AS: wouldn’t pass Garner test b/c the significant risk of injury was created by the police (me: unclear what this matters) c. Perverse effect: if create rule that once chases become too risky, must back off, suspects will intentionally create risky situations to flee effectively III. Limits on the exclusionary remedy 47 Vikas Didwania Winter 2009

a. Good faith exception – if LEO obtains a W, evidence gathered will not be excluded if: his reliance on the W is objectively reasonable (meaning W is not clearly defective) + LEO acts within the scope of the W i. In other words: magistrate’s PC determination is binding in later suppression hearing unless it was unreasonable for cops to rely on that determination ii. NOTE: states can have their own search / seizure provisions that are more restrictive than 4A. So NJ, e.g., has not accepted the good faith exception

Leon: SCT, 1984, p.683 Background: Cops did lots of investigation on this drug trade. Then obtained a search W for 2 houses and car. Later, DCT held that the affidavit was insufficient to support PC for a search W, but clear that cop acted in good faith. Case: Whether E Rule should be modified so as not to exclude evidence obtained by cops in reasonable reliance on a search W? Ruling: Yes, modify rule, create exceptions.

iii. Evaluation of the E Rule: 1. Judicially created remedy to create deterrent to violating 4A by COPS 2. Not required by 4A (courts under no obligation to exclude); not intended to cure the invasion of rights a. Also, NOT INTENDED to have an behavioral effects on judges or magistrates 3. All this means that can create exceptions where it wouldn’t serve its main purpose of deterrence a. Note that if it were intended to cure the invasion of rights, then still would have strong case here to exclude b. If intended to effect magistrates, then could say no exception here would create incentives for them to be more careful. iv. Should this exception be created? Do cost-benefit analysis: 1. Social costs are large: excluding incriminating evidence, guilty may go free 2. Social benefits few: will not be efficacious in deterring a. But wouldn’t cops be deterred at the margins—be a little more careful with the W application or won’t shop around for the easiest magistrate? b. Court: arguments are speculative; no empirical evidence that in this situation, Rule would have any deterrent effects on cops v. Provides THREE instances where won’t defer to magistrate’s determination of PC 1. See also oath section above 2. First: knowing or reckless falsity of affidavit; second: non-neutral magistrate; third: affidavit doesn’t provide magistrate with substantial basis for determining PC 3. And even if defer, reviewing court can still determine that improper analysis of TOC, no PC here vi. Procedure: as with the QI inquiry, don’t necessarily need to decide objective reasonableness here before deciding the 4A question (of whether actually had PC) 1. That would freeze 4A law, reduce guidance to lower courts and cops, and preclude review of constitutionality 2. So can decide Const and then decide whether objectively reasonable vii. Blackmun concurrence: this case is about empirical effects. If later find out were wrong about our empirical judgments, should be willing to change course viii. Brennan dissent: 1. First: disagrees that E Rule not required by Const. Much of Const is stated in general terms without any remedies a. Admission of the evidence implicates same concerns as to the initial seizure of the evidence (where 4A clearly covers). Therefore, 4A reaches and condemns both practices

b. Use of illegal evidence in court taints that proceeding, kind of like unjust enrichment c. Basically: 4A grants person right to exclude such evidence 2. Second: by basing purpose of E Rule solely on deterrence, has robbed it of legitimacy a. Deterrence rationale has been powerful tool for confining scope of the E Rule 3. Third: fights against the empirics. Social costs of E Rule are quite low. ix. Cabining the good faith exception: 1. After Leon, thought maybe could argue that in warrantless searches, cops reasonably believed that their search w/o W was Const (maybe search incident to arrest, exigency) even though exceeded the const scope, and so no exclusion a. Basically that reasonably believed they didn’t need a W b. Same idea that wouldn’t have any effects on cop deterrence 2. But it didn’t happen, good faith exception has been cabined to only W situations a. Maybe b/c would reduce incentives to get W, and Court dislikes that x. Recent expansion: 1. See Herring (didn’t read) – isolated & attenuated negligence in not updating a police dep’t arrest W database was not grounds for excluding evidence from a search incident to arrest 2. Takeaway: looking for LEO deterrence and culpability. a. B/c here, would have made police departments be more careful in future 3. Similar to Leon in that tried to get W and not their mistake, but here objectively relying on another set of officers (instead of magistrates) b. Impeachment – can still use the evidence to impeach the defendant c. Standing – question is who can assert a 4A violation i. Misnomer, courts don’t like to use anymore since the same as 4A doctrine ii. Old approach – any target of LEO search or seizure. But then subjective inquiry of who LEO was targeting. So Court abandoned. iii. New approach – the person seeking suppression must have been searched / seized—their privacy interests must have been infringed iv. Me: I think this is the difference. Let’s say X was searched illegally and found evidence implicating Y. Now Y wants to suppress that evidence 1. Under new approach, no go 2. Under old approach, if cops searched X with the intent to target Y, then Y could still suppress. But how do you know who cops were targeting (X or Y)?

Carter: SCT, 1998, p.698 Background: D and lessee of apartment were bagging coke. Cop looked through window and saw it. When D got into car, cop stopped them (clearly had PC), and found drugs, weapons, etc. D was in apt only for the day and specifically to bag the coke. Case: Whether D can claim protection of 4A here and seek to exclude evidence? Ruling: No, he had no reasonable expectation of privacy in the home.

v. Q: whether D has a legit expectation of privacy in the invaded place 1. Court distinguishes precedent. Note, this is the plurality opinion! 2. See Olson (p.700) – overnight guest in house has some expectation of privacy a. Entire purpose is to seek out private place to sleep b. Includes other places where we may seek privacy to sleep—hotel room, home of friend, etc. 3. Here, D was there only for a few hours and only to conduct a biz transaction and had no previous connection to the lessee a. Not a social guest, not an overnight guest vi. Application: since no legit expectation of privacy, can’t claim 4A protection

vii. Note: possibility that cop looking through the window wasn’t even a search, so 4A may not have applied regardless. But Court doesn’t address this question. viii. Scalia concurrence: argues there wasn’t even a search here 1. Textual and historical analysis of 4A. 2. Conclusion: 4A applies privacy not just in your own home, but in other homes. a. Why? Text says “their homes,” which could certain mean “his home.” Well, have precedent in Olson and would make 4A very narrow. Plus 4A protects people, not places. 3. And to anyone who lives in the home, regardless of whether own it, rent it, leases it, or just occupy it. For in those instances, the house is your castle 4. But the limit is overnight social guests. Here, definitely no protection 5. Me: I think same exactly analysis as majority. Scalia just frames it as a question of whether a “search” not a question of whether “legit expectation of privacy.” Under 4A doctrine, however, that’s the exact same thing ix. Kennedy concurring: Almost all social guests have a legit expectation of privacy 1. Wants to look at social expectations, and social guests all expect some privacy 2. This was a biz transaction and with a fleeting connection to the home 3. Kennedy’s opinion is the narrowest, so it seems to control. Scalia’s seems very broad (in terms of changing the state of the law). x. Breyer concurrence: agrees with dissent but says no search here since officer was not in the curtilage. Therefore, officer was lawfully where he was and drugs in plain view (like Riley and flyover cases). 1. No one was searched, not even the lessee. So broader opinion 2. But agrees with dissent that D had legit expectation of privacy in the home xi. Ginsburg dissent: 1. When home occupant (owner, lessor) personally invites guest into home to share common endeavor, that guest shares his host’s shelter against unreasonable searches a. And that common endeavor can be conversation, leisure, or licit / illicit business 2. But this rule would be limited to those areas of the home where the visitor is allowed / has been 3. Property rights provide the power to exclude, which implies the power to include. Through the host’s invitation, guest gains reasonable expectation of privacy—her privacy is shared with the guest when she shares her home. xii. See also Payner (p.708, 1980) – tax cops suspected D had secret foreign bank account. So they lured the bank officer to dinner and other cops went to his hotel room to search his suitcase, found incriminating evidence. Court: D had no privacy interest in the bank officer’s suitcase, so no evidence suppression 1. Perverse effect: this search was strategic, since cops knew the decision rules courts use for standing 2. Cops are only supposed to care about conduct rules (how to conduct searches) and not decision rules. But decision rules become conduct rules when they substantively affect the outcome d. Fruit of the poisonous tree: suppress only evidence obtained because of a 4A violation, but that can include direct and indirect products of the invasion and can include physical as well as oral statements i. So have to define what “because of” is: 1. But for causation: But for the violation, would not have obtained the evidence a. Independent source exception – evidence was obtained through independent source, so illegal search did not cause them to find it b. Inevitable discovery exception – when evidence would’ve been discovered anyway, can let it in, even if its discovery a result of the violation. Very hypothetical – if LEO would’ve come across it 2. Proximate cause: whether subsequent evidence was too attenuated form the original violation 50 Vikas Didwania Winter 2009

a. Very hard trying to define attenuation. See Ceccolini (p.718) – officer illegally searched envelope at shop. 4 months later, partly due to his search, another cop interviewed clerk at shop and that interview eventually led to D’s conviction b. Court: degree of attenuate sufficient. Witness’s testimony was an act of her free will (probably didn’t even know about the search) i. Me: so clearly but for, but not proximate ii. Hypo: 1. Step 1. LEO violates 4A by searching X’s house. LEO finds no evidence of crime, but finds Y’s home address on a sheet of paper. 2. Step 2. LEO uses the paper to find Y’s house and then violates 4A by searching it. LEO finds evidence that incriminates both X and Y. 3. Y: easy claim since direct here – you searched my house illegally to obtain evidence 4. X: but for claim – but for the illegal search of my house, you wouldn’t have found the incriminating evidence a. Counter: cops could argue inevitable discovery. Would’ve come upon Y’s house anyway b. Counter: independent source for the info on the sheet of paper 5. Now, take away Step 1 (or that search legal). a. Y: same argument. X: has NO argument, since X has no privacy interest in Y’s house (Carter). Can’t suppress. iii. Case:

Wong Sun: SCT, 1963, p.709 Background: Complicated case, see Samaha’s chart in slide 20. Evidentiary items in question: (1) statements made by Toy in his bedroom after arrest; (2) heroin surrendered by Yee; (3) Toy’s unsigned statement; (4) Wong Sun’s unsigned stmt Case: What gets in? Ruling: Nothing for Toy. For Wong: (2) and (4)

1. Initially, the arrest of Toy was unreasonable under 4A. The informant’s info didn’t establish PC and Toy running away was ambiguous conduct. No PC for search or arrest (and warrantless) 2. (1) must be excluded a. I think this is direct. Because of the arrest, Toy made the statement 3. (2) must be excluded a. Prosecutor said wouldn’t have found the drugs if it weren’t for Toy’s statements b. So indirect but not attenuated and no inevitable discovery exception 4. (3) must be excluded a. Not due to poisonous tree analysis b. Crim pro rule that confession statements must have extrinsic corroboration. Here, since excluded (1) and (2), no more such corroboration c. Finally, Wong Sun’s statements cannot be used against Toy b/c co- conspirator’s hearsay (meaning Wong Sun’s, since made out of court) may not be admitted unless made during and in furtherance of conspiracy 5. (4) need not be excluded with respect to Wong Sun a. He made the statement after being released from arrest and coming back several days later. So the statement is attenuated from the 4A violations b. (2) is admissible against Wong Sun, since none of his privacy interests were violated in obtaining the heroin c. Because we have (2), that corroborates (4), making it admissible 51 Vikas Didwania Winter 2009

d. (3) is still inadmissible for Wong Sun, since hearsay can’t be admitted (vii.3) 6. Good summary: p.716 n 4 iv. Justification for fruit doctrine (from book): 1. Deterrence effect – police shouldn’t be able to gain from violations a. But: hard for police to anticipate evidence they’ll find down the road because of a search. So a no fruits approach wouldn’t lead to perverse incentives 2. Unclear what the deterrence effect is, so law split the difference. Fruit doctrine increases exclusion but standing doctrine limits it.

POLICE INTERROGATION

I. Miranda and its alternatives a. Note that 5A and 6A have been incorporated through 14A to the states b. Justifications for limiting coercive interrogation i. Accuracy – especially 100 years ago, when accompanied by physical torture 1. Can’t be all about accuracy. See E Rule ii. Free will 1. Have choice / autonomy about when to share your thoughts 2. Comports with 5A text stressing “compelled” testimony 3. Line drawing problem: who criminal process is about depriving you of choice and free will. How to know where choice becomes important? iii. Fair play 1. Brutality or deception should be off the table; unfair c. Early development of 5A interrogation doctrine i. Originally, 5A inapplicable to pretrial interrogation ii. Then Court extended it in Bram (p.806, 1897) – arrested for murder but before formal charges or trial, cops interrogated him. Stripped him, etc., and got confession out of him 1. Court: situation of the accused and nature of communication tends to show that confession was involuntary 2. And 5A demanded that testimony not be compelled, that it be voluntary 3. Violated in this case iii. Even though Bram had this extension, until Miranda, Court still used the voluntariness standard of the DPC d. Voluntariness standard i. See Brown (p.807, 1936) – mob violence of whites, D, black, beaten until confessed 1. Court: offends principle of justice so rooted in the traditions and conscience of our people to be ranked as fundamental, so denial of due process. Violates DPC ii. After Brown, torture usually hidden, so depended on whether Court believed the cops iii. See Ashcraft (p.808) – questioned him in relays for days until he supposedly confessed 1. Court: involuntary b/c so inherently coercive iv. See Watts (p.809) – same, questioning for days in relays. 1. Court: such relentless interrogation is coercive. Offends DPC 2. Jackson concurrence / dissent: a. These are murders that were unwitnessed. Only solution was to interrogate the killer, which they did. External evidence corroborates the confessions b. But: real serious concern here is that suspect never had and was never advised of his right to counsel v. Jackson’s view seems to have lost it in the voluntariness context. Court expanded the doctrine to include psychological brutality. See Payne (p.812) 1. And often wouldn’t defer to lower court fact findings in practice, b/c knew lower courts could manipulate facts to achieve desired result (of letting evidence in) 2. So lots of confusion and no real guidance for lower courts 52 Vikas Didwania Winter 2009

vi. I think the standard here is “shocks the conscience” or maybe will being “overborne”? See p.836 for what may be the test e. Miranda’s addition i. SEE Miranda Chart.doc for Samaha’s flowchart ii. RULE: Exclude all statements made by suspect stemming from custodial interrogation, unless certain warnings are given 1. Warnings: right to remain silent, any stmt will be used against him, to have presence (not just consultation) of attorney, either retained or appointed (see p.820) 2. Custodial interrogation: questioning initiated by LEO after person has been taken into custody or otherwise deprived of his freedom in any significant way 3. Suspects may waive these rights at any time, provided waiver is voluntary, knowing, and intelligent a. Any time: meaning before, halfway during, and so on b. But heavy burden on govt to show waiver, especially b/c govt has all the info c. Fact of lengthy questioning will indicate waiver was involuntary 4. Suspects may invoke these rights at any time a. Once he invokes his right to remain silent or to have an attorney, no longer can question him until he gets his lawyer 5. Legislatures might devise other fully effective means to inform a. Court hedging, don’t really know what they’re doing. So allow for alternatives. b. But know that they don’t want to be looking for coercion in every case, since eats up resources and often can’t tell (done behind closed doors) iii. Application: if RULE isn’t followed then presume that anything said during interrogation was compelled and must exclude. No further inquiry into whether actually compelled. 1. NOTE‼!: even if decide that Miranda does not apply, still go through the voluntariness test, b/c statements might have been actually compelled (although rare) iv. Case:

Miranda: SCT, 1966, p.819 Background: Miranda specifically was in custody and questioned without any warnings, then confessed. No evidence of any physical or psychological coercion. Case: Can confession be admitted? Ruling: No, must warn. The other cases are very similar.

v. Court describes the physical and especially psychological coercion going on 1. And often can’t tell since done behind closed doors 2. Looks at police manuals and such vi. Even without these tactics, very fact of custodial interrogation is highly coercive 1. Unfamiliar atmosphere 2. Menacing police interrogation tactics vii. And cherished principle: no individual may be compelled to incriminate himself 1. But does 5A apply during custodial interrogation? 2. Yes, principles embodied in 5A apply; the amendment’s been given a liberal construction over the years 3. Without this protection, the 5A protection during trial would be useless. Just coerce them before trial a. Me: I think Court says this. viii. Finally, legislatures can devise appropriate alternatives, but must be at least as effective in apprising persons of their rights ix. These requirements are practicable – FBI already does something very similar x. Consider Westover (p.830) – investigated for crime 1 by state cops, no warnings, and immediately after for crime 2 by FBI, who gave warnings. 53 Vikas Didwania Winter 2009

1. Court throws out both confessions. The impact on him was of a continuous period of questioning, so all of it is tainted 2. Not enough attenuation between the two interrogations to make the second one legit, even though given warnings at the start of it xi. Harlan dissent: 1. Court’s rule isn’t supported by text of 5A a. Even “compelled” is narrow, since doesn’t cover trickery or deceit 2. 5A never meant to rid the process of all pressure. DPC places limit with voluntariness test, and that’s the extent of it. Very different lines of analyses, and Court is bringing in 5A without any support 3. Slippery slope: if right to counsel necessary during the interrogation, why not during the grand jury inquiry or even the controlled drug buy? 4. No Const support and no policy justification either a. All interrogation has some pressure in it. All confessions coerced in some sense b. Const is only about undue pressure c. These rules will frustrate law enforcement, decreasing # of confessions xii. White dissent: 1. Court has no basis for rejecting precedent. Can’t even point to trends, like in Mapp 2. Somehow Court thinks it has new knowledge about what goes on during interrogations, using some manuals to extrapolate a norm 3. Makes the point about how if all interog is coercive, how can a defendant waive? Isn’t the waiver inherently coercive? xiii. AS: compare Miranda to Bustamonte (guy consented to search of car) 1. Bustamonte standard about voluntary consent is TOC and completely open- ended, while Miranda is rule-like. Why? 2. Maybe custodial interog inherently more coercive, or more adversarial, or more difficult to ascertain what happened; maybe personnel changes on Court; maybe with search less worried about accuracy (will likely get accurate info— contraband or not—but with interog don’t know if accurate) xiv. Foreign officials: treaty requires informing suspects that they have right to notify foreign consulate of their arrest. If they aren’t notified, exclusion, as in Miranda? No. See Sanchez-Llamas (p.S166) 1. Automatic E Rule is purely American creation and unlikely that signatories thought that would be the remedy in every country f. “Custody” (standard) i. How to define? See below—not whenever there’s a seizure! ii. See Berkemer (p.842, 1984) – stopped for drunk driving, and cop concluded that he would be charged with a traffic offense, so his freedom to leave was terminated. Cop asked some questions and then formally placed him under arrest. 1. Court: not custody. Questioning incident to traffic stop very different from station questioning. a. Temporary, brief, in public, familiar area, only 1 or 2 cops b. Generally, not so threatening or coercive 2. Great many encounters begin with Terry stops and then ripen into arrests. Impracticable to require cops to always begin with Miranda warnings 3. So in general Terry stops will not be considered custodial. iii. See Murphy (p.843, 1984) – sex offender met with officer and admitted to an older unsolved rape 1. Court: not custody. No formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. 2. Here: familiar with the office (regular visitor), voluntarily came in after scheduling an appointment, could have left at any time iv. Note that familiarity isn’t dispositive. See Orozco (p.841) (in custody when questioned in his bedroom) 54 Vikas Didwania Winter 2009

v. Intent of police DOES NOT MATTER—doesn’t matter if they think he is the primary suspect or not. Only from perspective of an objectively reasonable subject. See Stansbury (p.845) vi. Hypo: what if in interrogation room but not under arrest? 1. Remember, intent of officer doesn’t matter—whether he thinks suspect under arrest or not 2. If walked into station by himself to talk, clearly no Miranda concerns. 3. If brought in by cop, even if not under arrest, probably custody g. “Interrogation” (standard) i. Easy case – officer asking questions ii. Harder case – officer eliciting responses:

Innis: SCT, 1980, p.845 Background: D arrested and given Miranda warnings. D invoked them, asking for a lawyer, so all questioning must stop. While cops driving him to station, started talking about handicapped children finding the gun. D interrupted them and said he’d show them the gun. Case: Can confession be admitted? Ruling: Yes, there was no interrogation.

1. Miranda safeguards required not whenever in custody but when in custody and faced with interog. Must have measure of compulsion beyond that inherent in custody itself 2. Interrogation: express questioning or its functional equivalent a. Because Miranda itself focused on psychological ploys that weren’t necessarily questioning. And if limit to questions, then at mercy of police ingenuity b. Functional equivalent: words or actions by the police that the police should know are reasonably likely to elicit an incriminating response from suspect c. BUT focus on perceptions of suspect, NOT the police i. And thin skull rule applies. If know suspect especially susceptible to appeals to conscience, that counts. d. Note: this doesn’t make much sense, framed from cop’s perspective but look at subject’s 3. Application: nothing in record suggests that officers aware responded peculiarly susceptible to appeals to his conscience. Not reasonable to expect suspect to respond after a few offhand remarks a. AS: seems pretty clear that a ploy. Timing of conversation suspect. But don’t care about what officer thinks about the gambit and whether likely to succeed. Only what the reasonable suspect would think. 4. Stevens dissent: interog b/c designed to elicit a response, regardless of whether officer knew that likely to elicit a response iii. Conversation between suspects: see Mauro (p.851) – husband arrested for murder and invokes Miranda rights. Wife being questioned and insists on speaking to husband and is allowed to but conversation recorded (and she knows that). Cops know that substantial risk incriminating statements will be made. 1. Court: no interrogation. Police discouraged her and not a psychological ploy 2. Book: seems like incorporating subjective intent of officer iv. Conversation with undercover agent:

Perkins: SCT, 1990, p.851 Background: Undercover agent was placed in D’s cell. Agent directly asked if he had committed any murders, to which he said yes (showing off). No Miranda warnings were given. Case: Can confession be admitted? Ruling: Yes, warnings are not required when the suspect is unaware that he is speaking to LEO and gives

voluntary statement.

1. Should be easy case the other way: in custody, and directly questioned. But no. 2. Miranda is about atmospheres that generate inherently compelling pressures 3. And from suspect’s perspective, this wasn’t a coercive environment. He was speaking freely. 4. Brennan concurrence: agrees Miranda doesn’t apply but other possible Const defects here. The deception and manipulation raises a substantial claim under DPC a. I think he’s talking about voluntariness standard and that suspect’s will was overborne 5. Marshall dissent: clear case, in custody and asked questions (interog). Miranda applies, should have received warnings a. Miranda wasn’t only concerned with police coercion. Dealt with any police tactics that may compel a suspect in custody to make incriminating statements—not just coercive tactics. i. “Compulsion” proscribed by Miranda includes deception b. Here, suspect felt compelled to reveal the info, b/c of the way the conversation was structured c. Given that it’s a jail, where police have full control and which automatically exerts pressures on the suspect, police have unique opportunity to exploit suspect’s vulnerability 6. Compare with White (above) – if Perkins had come out other way, agents would be completely unregulated before and completely forbidden after arrest. 7. DPC concerns with undercover agents – even if no Miranda concerns, still apply voluntariness test. See Fulminante (p.857) – undercover agent told arrestee that would protect him from other prisoners if he confessed. Court held confession was involuntary. v. Routine booking exception – biographical data necessary to complete booking or pretrial services are exempted. So even if asked these questions w/o Miranda warnings, answers will not be admissible 1. But, even during booking, may not ask questions that are designed to elicit incriminatory admissions 2. Me: What if confess afterwards? Is confession inadmissible? I think so. h. “Waiver” (standard) i. Waiver is very common, more than 90% for those w/o a record. For felons, it declines. Why? Maybe feel less coerced; know the benefits of keeping quiet; think can be strategic and get cops off their trail ii. No statistical different between those who waive and those who don’t in sentences or charging iii. See test above – knowing, voluntary, etc. 1. Silence is not an indication of waiver 2. Heavy burden on govt i. “Warnings” (rule) i. Must give them no matter what ii. If warnings have not been given, waiver is impossible; presumption of coercion is irrebuttable iii. Court has been flexible as to the precise language of the warnings 1. See Prysock (p.859) (cop added an “if and when” and Court upheld) j. Invocations i. Can be done in any manner, no formula. But must be unambiguous for counsel (see below) ii. Invocation of right to silence:

Mosley: SCT, 1975, p.861

Background: D arrested, given warnings, was briefly interrogated about robberies, then invoked his right to remain silent (but NOT right to counsel). Later, different cop interrogated him about a murder, after giving him warnings and obtaining waiver. Got incriminating info out of him. Case: Can confession be admitted? Ruling: Yes, have to see if right to cut off questioning was “scrupulously honored,” an objective inquiry 1. Literal interpretation of Miranda forbidding further questioning would lead to absurd results, creating huge obstacles to legit investigative activity. a. But a very flexible interp would destroy the protection, since cops could just keep subjecting him to questioning to undermine his will 2. Miranda was about suspect’s right to control time at which questioning occurs, and its content and duration 3. Application: was his right to cut off questioning scrupulously honored? a. More than 2 hour interval, by another officer at another location about another crime and give fresh warnings b. Second interog focused exclusively on the murder, and no questions about the robberies c. Compare with Westover, above. iii. Invocation of right to counsel:

Edwards: SCT, 1981, p.863 Background: Arrested, taken to police station, given warnings. Said understood rights and was willing to answer questions. Then said wanted to make a deal. Cop said didn’t have authority to make a deal. D then called a lawyer and then said he wanted an attorney. Next morning, cops came and said wanted to talk. He said he didn’t want to and they said had to. Gave him warnings, and then he implicated himself. Case: Can confession be admitted? Ruling: No, having invoked his counsel right on the prior day, he did not validly waive that right the next day

1. Rule: when invoked right to counsel, suspect is no longer subject to further interrogation until counsel has been made available to him a. Valid waiver of that right cannot be established by showing only that he responded to further interrogation. b. But he can waive voluntarily if he initiates the meeting / conversation. Just not in response to questioning. And even trickery is OK, as in Innis. 2. Distinguishes Mosley: very different whether suspect invokes silence right or counsel right a. Note that the rule is different than when someone invokes right to silence. Then officers can reinitiate as long as sufficient attenuation from first round 3. Any good reason to treat the two differently? a. Maybe: silence is under suspect’s control but counsel isn’t i. Suspect who asks for counsel is probably very intimidated, while silence indicates some savvy 4. What’s “initiation” by the suspect, sufficient to waive? a. See Bradshaw (p.866, 1983) – invoked right to counsel, so to waive must reinitiate. i. By asking “Well, what is going to happen to me now?” suspect reinitiated further conversation, evincing a willingness and desire for a generalized discussion about the investigation. ii. Could have been reasonably interpreted by officer as relating generally to the investigation iii. Simple conversation like “Can I have water?” won’t be enough

iv. Marshall dissent: agrees with the rule but doesn’t think this question evinced such a desire. Wanted to simply know where he was being taken, not talk about the investigation b. What’s the standard for initiation? Same as waiver: knowing, intelligent, and voluntary. See Wyrick (p.886). 5. What constitutes “invocation” of counsel right: a. Basically: unambiguous, generalized request b. See Davis (p.868, 1994) – suspect must unambiguously request counsel, meaning a reasonable officer would know the suspect was requesting counsel. So if reasonable officer thinks suspect might be invoking counsel, can continue to question him. c. See Smith (p.869) – convoluted line of questioning about the warnings. Then cop says you have right to counsel, do you understand, and suspect responds “Uh yeah, I’d like to do that.” Continued questioning and guy clarified that didn’t want a lawyer i. Court: suspect’s responses to further interog after his request for counsel may not be used to cast retrospective doubt on the clarity of the initial request ii. But of course the later stuff can be used to try and established waiver d. See Barrett (p.869) – defendant agreed to talk to police but he refused to make a written statement w/o counsel present. Court: not a generalized enough assertion of counsel to invoke Edwards. i. Concurrence: some defendants respond hesitantly to police, and should take that into account e. See Fare (p.870) – juvenile, after warnings, asked for his probation officer. Cop said that’s not allowed, and then he incriminated himself. Court: no invocation 6. Consequences of invocation: a. See Roberson (p.870) – similar to Mosley. Suspect arrested, given warnings, and says wants lawyer. Few days later, different cops question him about different crime, after giving him his rights. This time he talks. Court: confession inadmissible, since invoked right to counsel several days ago i. Note that comes out exactly opposite to Mosley. Attenuation does not matter with right to counsel. b. See Minnick (p.870) – suspect invokes right to counsel, allowed to consult with counsel, and is subsequently interrogated. Court: not allowed, must have counsel with him at time of questioning i. Scalia dissent: we should welcome confessions, honest confessions are not “mistakes.” Const isn’t about protecting guilty, and so on. General rant c. Book: when does the invocation end? Not after a few days for a different crime, not after already seen a lawyer. Unclear i. But does give officers strong incentive to avoid invocations of counsel right. ii. Maybe that means less coercive questioning, since that may be more likely to lead suspect to ask for attorney. iii. But of course, most suspects don’t invoke their Miranda rights, just waive: k. Waivers without invocations i. SEE p.887 for a GREAT CHART ii. Remember, Miranda said govt has heavy burden of showing waiver. But it’s subsequently been made easier:

1. Also note that aside from the waiver standard itself (knowing, etc.) the burden of persuasion is merely POE for the govt (meaning must show knowing by POE). See Connelly (p.883)

Butler: SCT, 1979, p.872 Background: In custody, given warnings, said he understood his rights. Asked to sign waiver, and refused. Said will talk but won’t sign any form, then made incriminating statements. Case: Can confession be admitted? Ruling: Yes, valid waiver

iii. Courts must presume no waiver, but in some circumstances waiver can be clearly inferred 1. Express written or oral statement of waiver is best. But it’s not necessary iv. Most natural inference is that D thought oral statements couldn’t harm him. But these mistakes don’t matter. v. Bunch of state cases on p.873 about waiver, not especially relevant

Moran: SCT, 1986, p.874 Background: D informed of rights but refused to sign a waiver. In mean time, sister got PD’s office to call the station, said they were representing her. Person on the phone told PD that D would not be questioned for the night. D didn’t know this, was questioned, Marandized several times, signed waiver forms, had access to phone and didn’t use it, and made incriminating statements. Case: Can confession be admitted when either police misinform attorney about their plans or fail to inform suspect about attorney’s effort to reach him? Ruling: Yes, valid waiver

vi. First: failure to inform him violated the “knowing” prong of waiver 1. Events occurring outside presence of suspect and entirely unknown to him have no bearing on his capacity to comprehend and knowingly relinquish his Const right. Basically, only care about whether he understood his rights. 2. If lawyer hadn’t called, would’ve knowingly waived his right. So how can not knowing about lawyer’s call suddenly take that away? 3. Certainly additional info would’ve been helpful, but Const doesn’t require suspect to receive maximum amount of info 4. And police’s culpability has NO BEARING on the validity of the waiver. Their subjective state of mind is irrelevant vii. Second: should expand Miranda to fully protect 5A values 1. Court declines. Purpose of warnings is to dissipate the compulsion inherent in interog. A rule that focuses on how police treat the attorney doesn’t get at that. 2. Would mess up the careful balance of Miranda btwn suspect rights and effective law enforcement viii. Third: violated DPC 1. Court: no, didn’t shock the conscience ix. TAKEAWAY: for waiver, cops can take advantage of suspect’s ignorance or mistake or even deception. x. Stevens dissent: 1. First: govt bears heavy burden for proving waiver 2. Second: no difference between deception by omission of fact and deception by misstatement of a fact a. So clearly waiver would’ve been invalid if had tricked him by misdescribing statements of co-conspirators. [ME: REALLY?] b. And fine line between that and simple omission 3. Third: upsetting careful balance of Miranda a. Value of even trial seems like a stupid procedural technicality when have caught a murderer red-handed

b. Yet we engage in it c. Anytime exclude incriminatory evidence, cost seems high, and value of the procedural safeguards will appear minimal d. Real cost is actually very low: incremental increase in risk that D will not make a waiver 4. Fourth: under agency law, deception of attorney was deception of client. And that was a violation of his right to counsel b/c prevented the presence of an attorney II. Behavioral effects of Miranda a. One side: substantial impact on lost convictions for serious crimes i. And also means that maybe wrongful convictions of others b. Other side: little impact b/c i. LEO adjusted to Miranda 1. Giving warnings was a legitimating symbol of their professionalism. Made it seem like cops were on their side. 2. Developed really careful strategies ii. Most suspects waived iii. Judiciary softened on Miranda iv. If has had such little effect, why bother defending it? 1. Symbolic; still better to use psych ploys than physical abuse; w/o Miranda, maybe would go back to physical abuse c. Lots of statistics on pp.888-89; and see Notes p.82, where question all these ideas III. Constitutional statues of Miranda a. AS: four possibilities i. Miranda is the correct understanding of 5A—5A compels Miranda. (Stevens & others) ii. Not THE correct answer but A legit answer, one that legit serves const norms (Rehnquist? Others?) iii. Lawless behavior. (Scalia, Thomas, others?) iv. Relative indifference to Miranda, since it didn’t have much effect b. Procedural safeguards of Miranda themselves aren’t Const rights. Instead, measures to insure that 5A self-incrimination right protected. It’s a prophylactic rule. See Tucker (p.891) c. And that means can create exceptions to it: i. Public safety exception: where public safety interest beyond mere collection of evidence, can interrogate without providing Miranda warnings. See Quarles (p.891) (gun in grocery store) ii. Fruit exception: no fruit of the poisonous tree for Miranda violations. See Elstad (p.905) 1. Miranda is broader than what 5A requires. 5A only requires that can’t admit compelled testimony. So I think whatever is broader than that (and covered by Miranda) can still be let in 2. In Elstad, made incriminating statements before warnings, then warned, then gave written confession. 3. First statements clearly inadmissible under Miranda. What about the second? 4. Under fruits doctrine, would say no. But no fruits doctrine. So a careful set of warnings cures the defect and can use the second confession 5. And don’t need to be told in those warnings that can’t use the first round 6. See more below under Seibert. iii. Impeachment exception: voluntary statements obtained in violation of Miranda may be used to impeach defendant’s trial testimony. See Harris (p.904). 1. Note, though, that statements only admissible when voluntary. 2. Sufficient deterrence when prosecution can’t use evidence. Whatever additional deterrence it may have on police aren’t outweighed by court’s desire to mitigate perjury. 3. Can’t be coerced to have statements used against him, but SIC doesn’t include right to commit perjury. 4. Post-arrest silence: silence after warnings can’t be used to impeach.

a. See Doyle (p.905) – on stand, D said that had been framed by govt. Prosecution wanted to say: why didn’t you give that exculpatory story to the police at time of arrest? Court: post-arrest silence after warnings are inadmissible, since may be nothing more than the exercise of his Miranda rights b. But see Jenkins (p.905) – D testified that killed in self-defense. Court allowed introducing why D had remained silent and hadn’t gone to the police for two weeks. c. Distinction is that in Jenkins, talking about silence before arrest, before custody, and before warnings. So silence is more ambiguous, not about exercising your rights. State didn’t prompt you to be silent. d. Hypo: what if given warnings before arrested / in custody? i. AS: have to look at two factors: instigation by state and ambiguity of the silence ii. Here, maybe kind of cut against each other. d. Ability of statute to abrogate Miranda:

Dickerson: SCT, 2000, p.893 Background: § 3501 said admissibility of statements made during custodial interog turns only on voluntariness. Congress clearly trying to overrule Miranda. Case: Does Congress have const authority to supersede Miranda? Ruling: No, Miranda announced a Const rule

i. Lower court: created several exceptions to Miranda, and have referred to it as merely “prophylactic” suggests that Miranda is not a Const rule. Counters: 1. Miranda applied to state proceedings, and can only control state proceedings to the extent that the Const demands. 2. Text: Miranda itself is full of statements that announcing a Const rule 3. As for exceptions: no Const rule is immutable. Exceptions don’t mean that it’s not a Const rule a. But fruit exception explicitly based on notion that Miranda broader than 5A? b. Court: that case merely recognizes that unreasonable searches under 4A are analyzed differently than unwarned intero under 5A ii. Second: even if Miranda a Const rule, § 3501 complies since Miranda said alternative legislative rules are allowed 1. Court: Miranda requires warnings. 3501 specifically eschews such warnings. Not an adequate substitute. 2. 3501 wants to revive the TOC approach that Miranda specifically overruled. Saw that such an approach was ineffective. iii. Finally: stare decisis. Lots of reliance, embedded in our national culture iv. Scalia dissent: majority never actually says that what 3501 prescribes (a voluntariness test) violates the Const. Dances around the issue, calling Miranda a “Const based” b/c don’t actually believe that voluntary confessions in custodial interog w/o warnings violates Const 1. One: history and precedent dictate that Miranda does not have Const basis 2. Two: idea that Miranda is merely explication of what Const requires is preposterous a. No basis for concluding that if suspect knows all his rights and answers the first question w/o any warnings, that’s compelled b. And definitely no right to have counsel present c. Summary: idea that violation of Miranda rules necessarily is violation of 5A has no basis in history, precedent, or common sense 3. Three: Miranda, as Court has stated many times, is a prophylactic. Can often violate Miranda w/o violating Const. And this was central to holding of Tucker, Quarles, Elstad 61 Vikas Didwania Winter 2009

a. And this isn’t about whether const rules are immutable. These exceptions make no sense unless accept that Miranda isn’t Const. 4. Four: applied to states. Yeah, that was wrong, doesn’t make it any more Const. 5. Five: lawless power by Court to adopt “prophylactic” rules to enforce Const a. This is pure legislation b. Court can only go as far as the Const, can’t write prophylactic rules to bind Congress and the States 6. Six: no big effect to overruling Miranda. TOT voluntariness test isn’t so hard, and remember that have to do it in every case where no Miranda violation anyway v. Book: maybe way around this problem is to have DPC serve as the basis for Miranda, instead of 5A. Miranda is merely an indirect voluntariness doctrine. See pp.903-04 e. More on fruit exception: i. Me: remember that no matter what, have to do voluntariness inquiry, and that DOES have a clear fruit analysis, since it’s Const.

Seibert: SCT, 2004, p.906 Background: Cops don’t give any warnings until have confession. Then give warnings, get waiver, and question on the exact same topic to get the same confession. Case: Under Elstad, is everything in the second interrogation admissible? Ruling: No, second statement is a product of the first and should be suppressed. Note: 3-1-1-3 arrangement

ii. Miranda was about providing a real choice between talking and remaining silent iii. And question is whether the warnings here, in between the two periods of questioning, could function effectively as Miranda requires 1. Unless the warnings could place suspect just interrogated in position to make an informed choice, there is no practical justification for accepting the formal warnings a. Test: where a reasonable person in suspect’s shoes would have understood warnings to convey message that he retained a choice about continuing to talk. b. Note: Court still doesn’t require that suspect be informed that first round is inadmissible 2. In these situations, warnings will be ineffective in preparing the suspect for successive interog, close in time and similar in content 3. Suspect would hardly thinks actually has right to remain silent. If anything, probably bewildered. iv. Distinguishes Elstad. Initial failure to warn was an oversight, no evidence of coercion 1. In Elstad, there was attenuation. First and second round were not continuous 2. So distinguish on the facts v. Great outline of analysis on p.908 n 4 vi. Breyer concurring: courts should exclude the fruits if the failure to warn was in good faith 1. Note that Breyer is willing to look at subjective intent of officer vii. Kennedy concurring in judgment: seems to be the law since narrowest opinion 1. Prior exceptions to Miranda represent balanced and pragmatic approach. Evidence is admissible when central concerns of Miranda not implicated and when further interests of criminal justice system 2. This case is different. Deliberate violation of Miranda. Intentional misrepresentation of Miranda, thus central concern of Miranda implicated, and doesn’t serve any legit objectives 3. Analysis a. Use Elstad approach unless deliberate 2-stage strategy

b. If deliberate 2-stage strategy, post-warning statements related to the substance of the prewarning statements should be excluded unless curative measures are taken i. Curative measures: ensure a reasonable person in the suspect’s situation would understand the import and effect of the warning and the waiver. viii. O’Connor dissent: 1. First: should not look at subjective intent, as Kennedy and Breyer suggest. Voluntariness is about the suspect’s state of mind, and that doesn’t change regardless of what the officer was thinking 2. Second: plurality’s analysis is essentially a fruit analysis [didn’t understand] 3. Third: we already rejected giving any const implications to the lingering coercion inherent in D having let the cat out of the bag in the first half f. Physical evidence:

Patane: SCT, 2004, p.915 Background: Cop started giving warnings and then D interrupted, saying knew his rights. D then asked question, refused, cop persisted, and D gave incriminating statements leading to gun. Case: Suppress gun as fruit of unwarned statement? Ruling: No, physical evidence is admissible. Note: 3-2-3-1 arrangement

i. Note: plurality assuming that Miranda was violated here ii. Miranda is a prophylactic for SIC. But SIC is not implicated by admission of physical evidence as fruit of voluntary statement. 1. SIC can’t be violated by introduction of nontestimonial evidence obtained as result of voluntary statements (even if in violation of Miranda) iii. Can’t extend Miranda here b/c not justified by the necessity of protection of the actual right against self-incrimination iv. Court then goes on about how Miranda is a prophylactic 1. Mere failure to give warnings does not by itself violate Const rights. 2. Potential violations occur only when admit unwarned statements into evidence at trial 3. So with respect to failure to warn, there is nothing to deter, since a failure isn’t a Const violation 4. I see: two reasons to maybe exclude the evidence, either to deter or b/c 5A requires suppression of the evidence. a. Doesn’t require suppression b/c not testimonial b. And no deterrence rationale works here v. Kennedy concurring in judgment: less concerned about admitting physical evidence, because of its reliability. Important probative value. 1. So seems like per se rule that no fruit doctrine for physical evidence 2. Note that his intent inquiry drops out from Seibert a. Confused. Why do we think Seibert would govern this? Oh, because if treat Seibert as a general fruit case, then should say fruit inadmissible if warnings violated in bad faith. vi. Souter dissenting: none of the prior exceptions (such as public safety) govern here—by rule or principle (e.g. Harris was about integrity of judicial process) 1. SIC extends to exclusion of derivative evidence under precedent 2. Gives LEOs reason to flout warnings, at cost to 5A vii. Breyer dissenting: if bad faith to warnings, then fruits applies.

Chavez v Martinez: SCT, 2003, p.920 Background: Scuffle between Officer Chavez and Martinez, fired into Martinez. In hospital, starts interrogating Martinez. Arguing that 5A violation since compelled testimony, so filed 1983 suit.

Case: Was 5A violated here? Ruling: No. Note: 4-3-2 decision

1. No 5A violation because his statements were never used against him. Only violated by introduction of the testimony into evidence 2. The 3 concurring said: not at core of 5A concerns and so did not justify a damages remedy. But did not go as far as plurality 3. Dissent: thought due process violation in any case, because shocking enough IV. 6A right to counsel a. Applicable to states through 14A b. Clause is oriented towards prosecution and the defense thereof c. Court extended to beyond just trials:

Massiah: SCT, 1964, p.813 Background: D arrested, retained lawyer, and freed on bail. Co-conspirator had a wire and then D made incriminating statements to him in the car. Case: Were 5A and 6A rights violated by admitting the statements which agents obtained after he’d been indicted and retained a lawyer? Ruling: Yes, 6A counsel right violated.

i. RULE: 6A right attaches post-indictment, when govt eliciting info 1. Eliciting = questions + functional equivalent (I think) 2. Court: once adversary proceedings have commenced, he has right to counsel when government elicits info from him. 3. See also Henry (p.929) – where informant sent into jail and stimulated conversation with D. Court said 6A violated b/c deliberately eliciting info post- indictment. 4. And Kuhlmann (p.930) – planting informant who merely listens and asks no questions doesn’t violate 6A rights. a. RULE: informant must take some action, beyond merely listening, designed deliberately to elicit incriminating remarks ii. In Spano, the Court extended 6A counsel right protection from just trials to extrajudicial proceedings (here, post-indictment interrogation by police) iii. In Powell, said right to counsel also available from arraignment until start of tiral iv. Justification: if the rule is to have any efficacy it must apply to indirect and surreptitious interogs as much as direction questioning in the station 1. And won’t hamper investigations. Can still continue that. Just the incriminating statements may not be admitted against him at trial 2. And may still be used in prosecution of those offenses for which indictment was not returned at the time the statements were made. See Moulton (p.931) – meaning that 6A is crime specific. 3. Compare with the Miranda situation, where Court has held that Edwards is violated if police interog suspect about Crime 1 if he has already invoked counsel right to Crime 2. See Roberson (p.931) v. White dissent: 1. Shouldn’t exclude, quest for truth, highly relevant info 2. Slippery slope: should rule attach whenever D has retained counsel, even if it’s before the arraignment? Should fruits be excluded? Rule is too broad. a. As to first question, see Burbine (p.942), where Court says no 3. No unconst interference with his right to counsel. He was allowed to see his counsel. Right to counsel has never meant that admissions must be excluded if counsel not present. 4. Note also that had the co-conspirator not been working with the police, had the conversation independently, and then gone to the police, clearly admissible

vi. Interactions with other cases: 1. In Perkins (where undercover agent talked to guy in jail), Court said Miranda didn’t apply b/c situation wasn’t coercive. Here, though, 6A does apply. 2. No 4A violation due to White; no Miranda due to no custody / not coercive; no voluntariness concerns since clearly voluntary

Escobedo: SCT, 1964, p.817 Background: D was arrested but not charged, had invoked right to counsel, and his lawyer was not allowed to see him. Then D interrogated. Case: Were D’s 6A rights violated? Ruling: Yes, 6A counsel right violated.

vii. Court: others argued that if right to counsel attaches before indictment, get much fewer confessions 1. But this cuts both ways. If are getting lots of confessions during that period, show the need for a lawyer viii. And then lots of flowery language about how a real justice system can’t depend on confessions, or on suspects being unaware of their rights ix. Very narrow holding: 1. when investigation is no longer a general inquiry into unsolved crime but has begun focus on a suspect, 2. the suspect is in custody, 3. police carry out interog that leads itself to eliciting incriminating statements, 4. suspect has requested and is denied opportunity to consult counsel, and 5. police have not effectively warned him of absolute const right to remain silent, 6. then he’s been denied counsel under 6A x. Case subsumed by Miranda? 1. Note that Miranda specifically noted that “focus” in Escobedo means the same thing as custody in Miranda. So pretty much subsumed 2. But might be broader because informants bring in 6A concerns that Miranda does not. Compare Massiah with Perkins. Basically, govt would have to tip-toe around D at all times after arrest and invocation of counsel right 3. But unclear whether Escobedo’s central holding that 6A counsel rights can attach before initiation of formal proceedings is still good law. Probably is not? d. Waiver of 6A rights:

Brewer: SCT, 1977, p.920 Background: D took girl from YMCA, killer her and buried body. Arrested and being transported through Iowa. Has lawyers on both sides. Cops agreed with lawyers that they would not question him. During drive, in response to the Christian speech by cops, incriminates himself by showing them where the body is. Case: Did he waive his 6A rights? Ruling: No, he did not, so there was a violation.

i. RULE: adversary proceeding + invocation of counsel = can’t deliberately elicit info ii. First: clear that cops purposely tried to elicit info. If there had been no interog, no 6A protections would’ve come into play. But here they interog, so 6A attaches. See Massiah 1. Note that Court here uses “interog” to mean “elicit.” Not interog in Miranda’s sense 2. After Innis, probably no elicitation either under Miranda. Just a speech. So 6A defn of “elicitation” broader 3. But note that could be narrower if have to look at officer’s subjective intent— Court focuses on deliberate elicitation. iii. Second: waiver? 1. Govt bears heavy burden of proving intentional relinquishment of a known right

2. Even though he knew all his rights (thanks to warnings), he did not relinquish them a. D had express and implicit assertions that wanted lawyer b. Cop then continued to elicit info 3. Basically, Court wants more affirmative act of relinquishment iv. Third: application of exclusionary rule (AS) 1. On remand, argued for inevitable discovery of body, and it was admitted. 2. Me: so it seems 6A does have fruits doctrine and no exception for physical evidence (as in 5A) v. Dissent: 1. D had been informed of all his rights, his disclosures were knowing and voluntary. There was no interog here but merely statements by cops. What more could he do to waive? 2. In any case, E Rule should not apply here. High costs and apply it when coercion or worried about accuracy. Neither a concern here. 3. Under 6A, there shouldn’t be an automatic exclusionary right. 6A is about trial rights and the fairness of trial. Here, no fairness or accuracy concerns that would justify suppression of truth. 4. Under 5A, where statements are voluntary and there has been no 5A violation, and only Miranda has been violated, shouldn’t get automatic E Rule. Should weigh costs and benefits of applying the Rule. e. Interactions between Edwards (based on 5A) and 6A rights:

Jackson: SCT, 1986, p.932 Background: No facts Case: Whether the Edwards rule regarding waivers applies to D who has been formally charged and has requested counsel at his arraignment. Ruling: Yes, 6A counsel right violated b/c requested counsel at arraignment and not given opportunity to consult before cops initiated further interog

i. First: arraignment is initiation of adversary proceedings, so 6A right to counsel attaches ii. Second: I think this is what is going on 1. Edwards and 5A do not directly apply because this probably wasn’t custodial interog. 6A definitely applies, but the question is whether the same waiver standard (about suspect initiating any further dialogue) as from the 5A context applies in the 6A context. 2. Court says yes iii. Justifications 1. Reasons for prohibiting interog of uncounseled prisoner are greater after he’s been charged than before (Edwards) a. So counsel right at post-arraignment interog should get at least as much protection as counsel right during custodial interog 2. Also, after formal accusations and invocation of counsel, state can no longer employ techniques to elicit info. (Me: this is the Massiah line of cases) a. Me: but why doesn’t this control here?? b. Maybe b/c here arguing that waived the right, and in Massiah etc. didn’t argue that? Maybe, see p.936 n 4 (noting that it’d be impossible to find waiver in these instances) c. But Brewer? Ooh, I think this case is only about police-initiated custodial interrogation while Brewer and others are about generally eliciting info (from informants and so on). So here create per se rule that no waiver in police interrogation unless initiates. But Brewer was also custodial interrogation? Maybe just expanding Brewer? iv. Holding: if police initiate interog after D’s assertion, at arraignment or similar proceeding, of his counsel right, any waiver of that right for that interrogation is invalid (Remember, under Edwards the D has to initiate to waive) 66 Vikas Didwania Winter 2009

v. Rehnquist dissent: 1. Edwards was a prophylactic rule, holding that after invocation, a valid waiver cannot be established by showing that D responded to further interrogation— must initiation the conversation. 2. But based on preventing coercion, since it was a prophylactic 3. No evidence of widespread coercion in 6A context 4. Court’s rule is illogical a. Edwards per se rule against interog cannot apply as soon as 6A counsel right attaches, because that would be huge expansion b. But 6A right does not depend at all on whether D has requested counsel vi. See McNeil (p.937) – whether D’s invocation of 6A counsel right during a judicial proceeding constitutes an invocation of his Miranda right to counsel. Court: no 1. No, 6A rights are offense specific so the Jackson rule also only applies to the specific offense. See Moulton. 2. Edwards rule in 5A context is not offense specific: no further interrogation about any offense. 3. Here’s D’s arg: invoked 6A (crime 1) but always waived Miranda rights  invoking 6A meant though that no further interog—but that’s only crime specific, so what about Crime 2? Well, invoking 6A meant that also implicated 5A Edwards line, which isn’t offense specific, so should attach to 6A 4. Court: different interests served by 6A line and 5A line a. Miranda-Edwards is narrower than 6A since only attaches during custodial interog b. It is broader than 6A since attaches to every crime vii. Meaning of offense-specific: 1. Even offenses that are “closely related factually” are outside the scope of the specific offense for which 6A protection attaches 2. But offense is not limited to four corners of charging instrument. Do the Blockburger test. See p.941