book practice

Harry, a wealthy industrialist, was on his way to work in his chauffeured limousine one day, when two masked gunmen suddenly attacked the vehicle, spewing bullets into its tires. The gunmen then opened the door and forcibly abducted Harry. Shortly thereafter, Harry's family received a ransom demand, which the family complied with. Harry was released unharmed; however, since his captors had blindfolded him while they transported him to their hideaway, and kept masks on at all times, Harry was not able to help the police determine who had committed the crime. Starting shortly after the kidnapping, the police ballistics lab analyzed the bullets found in the car, and discovered that these had come from a Smith & Wesson .38 revolver, of a type manufactured between 1980 and 1988. The police immediately began examining the records of every gun dealer and pawn shop in the metropolitan area, figuring that there was a good chance that the owner (or at least original purchaser) of the gun used in the abduction would be listed in these records. The police then began to interview each Smith & Wesson .38 gun owner shown in the records, and to test each of his or her guns. After the police had checked about 10% of the listed guns, they happened to get a call from an anonymous informant, who said, "You'll find evidence of a serious crime at 1025 South Avenue." The police realized that this did not furnish them with probable cause to obtain a search warrant for that address. Therefore, they decided to wing it. They went to 1025 South Avenue, rang the bell, and broke in when there was no answer. They ransacked the house, and in so doing, found a Smith & Wesson .38 revolver. Just on a hunch that this might have been the gun used in the Harry kidnapping case, they seized the gun and took it back to the police station. (They did not find any other evidence of criminality.) The department ran a ballistics test on the revolver and, lo and behold, it turned out to be the gun that had fired the bullets into Harry's car. The police went back to 1025 South Avenue, staked it out, and eventually arrested the owner, Kent, when he entered one day. Meanwhile, it turned out that Kent was the registered owner of the gun, and that his name appeared on the records of a local pawn shop as being the owner of that gun. The 1025 South Avenue address was listed as Kent's address in the pawn shop records. At Kent's trial for kidnapping, the prosecution seeks to enter the gun into evidence, and to tie it to the kidnapping by showing that it fired the bullets found in the car. Kent moves to suppress, on the theory that the police's possession of the gun stems directly from their illegal break-in of 1025 South Avenue at a time when they did not have probable cause or a warrant. a. What doctrine should the prosecution cite in support of its opposition to Kent's suppression motion? _________________ b. If the prosecution cites the doctrine you referred to in part (a), should the court grant Kent's suppression motion? _________________

(a) The "inevitable discovery" doctrine. Under this exception, evidence may be admitted if it would "inevitably" have been discovered by other police techniques had it not first been obtained through the illegal discovery. The prosecution bears the burden of showing, by a preponderance of the evidence, that the information would inevitably have been discovered by lawful means. Nix v. Williams. (b) No. This is a situation in which the "inevitable discovery" rule should apply. The police were in the process of examining the records of every local pawn shop and gun shop, to check on anyone who had bought a Smith & Wesson .38. Although they had not yet found Kent's name, the police would inevitably have gotten to that particular pawn shop, and would then have found Kent's name and address. Therefore, they would have looked for Kent until they found him, and would have then either discovered the gun or become increasingly suspicious of Kent if he couldn't produce it. So a court would probably be satisfied that the police really would have inevitably discovered the gun even had no illegality taken place.

While Officer Noonan was patrolling his beat on foot one night, he saw a car with a broken window and the alarm blaring. When he looked inside the car's window, using his flashlight, he thought he could see that there was no radio in the spot where the radio would normally be. At about the same time, he noticed a young woman (who turned out to be Marla) walking away from the car at a rapid clip, carrying a shopping bag. Noonan did not have probable cause to believe that Marla had broken into the car, taken the radio, or committed any other offense. However, based on Noonan's 20 years on the police force, on the very fast rate that Marla was walking, on the fact that the alarm had only recently gone off, and on the bag Marla was carrying, Noonan had what could best be described as a "solid hunch" that Marla might have done the break-in and taken the radio.Therefore, Noonan accosted Marla, asked her to stop for a moment, and asked her whether she had anything to do with the sounding of the car alarm. Noonan blocked Marla's way, in such a manner that it was clear to her that she would either have to answer his question or try to escape from him. Marla dropped the bag, apparently in a panic, and began to run. Noonan quickly looked in the bag, saw that it contained a car radio, and chased after Marla. He arrested her, and she was charged with burglary. At her trial, Marla has moved to suppress the radio, on the grounds that it is the fruit of a violation of her Fourth Amendment rights.a. What doctrine should the prosecutor cite in attempting to rebut Marla's suppression motion? _________________b. Should Marla's suppression motion be granted, in light of the rebuttal you listed as your answer to (a)? _________________

(a) The "stop and frisk" doctrine. By this doctrine, an officer may stop and briefly detain a person, even without probable cause for an arrest, if the officer has an articulable reason, based on objective facts, for suspecting that the person may have committed a crime. (The officer may also do a superficial frisk of the suspect if he has reason to believe the suspect dangerous, an aspect not at issue on these facts.) (b) No. The "stop and frisk" doctrine applies here. The stop of Marla was certainly a Fourth Amendment "seizure," since it was reasonably apparent to Marla that she was not free to leave without answering Noonan's questions. However, this is a situation in which the "stop and frisk" doctrine makes the Fourth Amendment seizure a "reasonable" one even though there was not full probable cause for an arrest. Noonan certainly had a number of objective reasons for suspecting that Marla might have something to do with the break-in. The fact that the break-in had just occurred, that the alarm had just started, that Marla was walking more rapidly than a person usually would, and that she was walking away from the car holding a bag that might easily contain a radio — all of these factors were, when taken together, enough to raise the kind of "reasonable hunch" that would justify at least a brief stop. (For instance, Ill. v. Wardlowestablishes that the fact that a person appears to be fleeing from the police is a factor that will usually significantly raise an officer's level of suspicion.) And, by the way, the fact that each individual factor that Noonan relied on (e.g., fast walking away from a car) was "innocent" or "consistent with lawful behavior" doesn't change this — the reasonableness of the suspicion is evaluated under the "totality of the circumstances"standard (see U.S. v. Arvizu), and under the totality of circumstances here Noonan's suspicion was reasonable. Then, once Marla refused to answer the questions, ran away, and left a bag holding a radio, Noonan of course now had probable cause to arrest her.

A search warrant is not always needed. What are the ten most important exceptions to usual requirement of a warrant for a search or seizure?

1) Where the search is incident to a lawful arrest. 2) Where the police are acting with the consentof a person controlling the premises. 3) Where the police are in plain view of the item, and they are standing in a place where they have a lawful right to be. 4) Search of a movable vehicle, under the "automobile" exception (but police need probable cause to believe that vehicle contains contraband or evidence of crime). 5) Where the police are in hot pursuit of a suspected felon. 6) Where the immediate destruction of evidence is threatened. 7) During the "frisk" portion of a "stop-and-frisk" (where probable cause is not needed, but police do need reasonable suspicion of criminal activity or threat of danger). 8) Where police are making a "protective sweep" of the premises (valid only on reasonable belief there may be someone on premises posing a danger to officers or others). 9) Inventory search following impoundment or arrest. 10) "Regulatory" (administrative) searches in the form of emergency inspections (e.g., firefighters entering burning building) or inspections of highly regulated industries (e.g., weapons dealers, nuclear plants).

Who may issue a search warrant?

A "neutral and detached magistrate." Such a person need not hold the official title of "magistrate" or "judge," or even be a lawyer. She can be a member of any class of persons authorized by statute to issue warrants; some examples include court clerks, justices of the peace, or in federal courts, lawyers appointed by the district courts. But the magistrate must be someone who is capable of determining whether probable cause for the requested warrant exists. A search warrant cannot properly be issued by anyone with an interest in the proceedings that might reasonably be expected to compromise his neutrality (e.g., an attorney general or other officer in charge of the prosecution or involved in the investigation, or a justice of the peace who is paid for each warrant issued). That's the concept captured in the requirement that the issuing magistrate be "neutral and detached." Connally v. Georgia, 429 U.S. 245 (1977); Coolidge v. New Hampshire, 403 U.S. 443 (1971).

In a stop and frisk, what factors determine whether a stop has taken place?

A stop occurs when a person is detained, in circumstances such that a reasonable person in the suspect's position would believe he is not free to leave or otherwise terminate the encounter. Florida v. Royer, 466 U.S. 210 (1984); U.S. v. Mendenhall, 446 U.S. 544 (1980). Some of the factors that may indicate the officer's intent to detain are the officer's words or tone of voice, if they indicate that compliance with the officer's requests might be compelled; the threatening presence of several officers; an officer's display of a weapon; or the officer's physical touching of the suspect.

What is a "stop and frisk"?

A stop-and-frisk is a combination of two different events, each with different constitutional requirements: 1. A "stop" takes place when an officer accosts a person and briefly restrains his freedom to walk away. Terry v. Ohio, 391 U.S. 1 (1968). A stop is constitutionally permissible even if the officer does not have probable cause to make an arrest; the officer must merely have a reasonable suspicion, based on specific and articulable facts, that person being accosted is involved in some criminal activity. Id. 2. After making a stop, the officer can make a brief protective search of the accosted person's body for weapons—a "frisk"—if the officer has reasonable grounds to suspect that the person may be armed and dangerous. Terry. NOTE: If an officer has probable cause for arrest, and makes the arrest, the officer doesn't need to consider the validity of an ensuing frisk at all, because a full body search incident to a valid arrest is always valid.

Dinner and dessert for two.Police had been monitoring the Beefcake Escort Service for months. While the owner of the service claimed that its employees merely provided companionship to clients, undercover surveillance suggested that escorts provided sexual favors for a "surcharge" beyond the standard rate. One evening, Marianne, a female police officer posing as a client, arranged to meet an escort at the service's business office for a "date." She prearranged the fee, which included an additional $500 for sexual intercourse. At Marianne's request, the office manager, Tina, arranged for Marianne to pick up a copy of her bill from a box on Tina's desk. When Marianne called and asked for the name of the escort, Tina told her she wasn't sure, but there would be three candidates present when she arrived who would have decided in advance among themselves which of them would take the assignment. When Marianne arrived at the office, she picked up the bill, which included the standard fee of $250 plus a $500 "surcharge for additional services." There were three escorts present. Marianne identified herself as a police officer and asked which of the three had agreed to be her date for the evening. All three claimed they were not the one, each claiming it was one of the other two. Marianne then arrested all three for attempt to engage in prostitution, on the authority of Maryland v. Pringle. These arrests are:

Appropriate

What is the "curtilage" of a property, and why does it matter?

As defined by the Supreme Court, "curtilage" consists of those buildings and surrounding areas in close proximity to a dwelling which are habitually used for family purposes. So, for instance, if the defendant owns a 200-acre farm enclosed by a fence, only the farmhouse and the areas immediately around it (like a garage for family vehicles), not the entire farm, would be considered within the curtilage. Cf. Oliver v. U.S., 466 U.S. 170 (1984) WHY IT MATTERS: Only police searches affecting a residence and its curtilage require Fourth Amendment protection. Police observation of things or activities outside the curtilage cannot constitute a Fourth Amendment search. Oliver.

Why is the exclusionary rule not applied in nontrial proceedings such as sentencing hearings, parole hearings, or deportation hearings?

Because the Supreme Court has taken the view that the primary purpose of the exclusionary rule is to deter police wrongdoing, and the Court has felt that in these types of nontrial proceedings, applying the rule would have little deterrent effect, while possibly disturbing the functions of the proceeding. For instance, inPennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357 (1998), the Supreme Court refused to apply the exclusionary rule to parole revocation hearings in which the agents committing the illegal search were parole officers, not police officers. The Court said that applying the exclusionary rule to such proceedings "would only provide minimal deterrent benefits," and would "hinder the function of state parole systems."

What are the requirements for a valid search warrant?

For a search warrant to be valid under the Fourth Amendment, here are the major requirements that it must meet: 1. It must be issued by a neutral and detached magistrate; 2. It must describe with particularity the "place to be searched" and the "things to be seized." 3. It must be based on "probable cause" (which really means "substantial evidence") to believe that the items to be seized are both (a) connected with criminal activity; and (b) to be found in the location to be searched. 4. It must be executed within a reasonable period of time after issuance. NOTE: If police conduct an improper search (e.g., by not getting a warrant when they should have or because the warrant itself was invalid), the typical remedy is to prevent the evidence they find from being introduced as evidence against the defendant. This is called the "exclusionary rule." The rule is discussed in this set under its own heading (EXR). As you read these search-warrant cards, keep in mind the good-faith exception to the exclusionary rule. That exception kicks in when the police, in conducting a search, rely reasonably but mistakenly on a facially valid search warrant that turns out to be invalid. Under the good-faith exception, the evidence they find is admissible.

What are the requirements for a lawful arrest?

For the arrest to be legal, the arresting officer must have either: 1. an arrest warrant that is supported by probable cause; or 2. probable cause to arrest (in the case of a warrantless arrest), plus some exception to the usual requirement of a warrant. (But an exception applies in virtually all arrest situations except entry to a private home in non-exigent circumstances.) NOTE: Notice that the ingredient common to both the warrant and warrantless situations is probable cause.

If an arrest is unlawful, is a warrantless search incident to it lawful?

Generally no; that's the problem with unlawful arrests. Under a lawful arrest, the police can search for weapons or evidence in the area within the suspect's immediate control. But where the arrest is unlawful (e.g., a warrantless arrest in a private home with no exigent circumstances to justify it, or a warrantless street arrest without probable cause), anything seized in the search incident to the arrest will be suppressed and inadmissible at trial. That's why the legality of an arrest is often the subject of intense litigation - the legality of the arrest doesn't usually matter per se (because even an illegally arrested suspect can still be tried), but the legality of the arrest will determine whether the search-incident-to-arrest doctrine applies. EXCEPTION: The one major exception to this general rule is that if the police reasonably relyon an apparently valid arrest warrant that's invalid for some reason, fruits of a search incident to that arrest will nonetheless be admissible, under the "good faith exception" to the warrant requirement. U.S. v. Leon, 468 U.S. 879 (1984).

What are some of the types of evidence that can contribute to a finding of probable cause to search?

Here are some of the more commonly encountered types of facts that are found to contribute to a finding of probable cause: 1. a suspect's suspicious conduct (e.g., association with known criminals, secretive or furtive conduct, or unprovoked flight when police approach); 2. a suspect's admissions (if voluntarily given); 3. the criminal record of a suspect; 4. the presence of the suspect in a "high crime" area; 5. physical evidence that's suggestive of particular criminal activity (e.g., ownership of a weapon like the one associated with a known crime; fingerprints associated with a crime). MNEMONIC: HIGH CARP (High crime; Conduct; Admissions; Record; Physical evidence) NOTE: Obviously, there are other types of evidence that can establish probable cause, including information from informants. Furthermore, the facts submitted must be weighed and balanced carefully. (Example: A suspect's criminal record by itself, or his mere presence in a high crime area, is not enough for probable cause to search his premises or person).

What types of evidence may a police officer use to support a finding of probable cause for arrest?

Here are the major categories of evidence that will contribute to a finding of probable cause to arrest: 1. suspect's suspicious conduct (e.g., secretive conduct or flight when police approach); 2. suspect's admissions (though only voluntary ones count); 3. the criminal record of the suspect; 4. the presence of the suspect in a "high crime" area; 5. physical evidence of crime (e.g., fingerprints matching the suspect to a crime scene) MNEMONIC: HIGH CARP (High crime; Conduct; Admissions; Record; Physical evidence) NOTE: Obviously, there are other types of evidence that can contribute to a finding of probable cause, including information from informants or association with known criminals. The entire "package" of evidence must be considered; so the presence of one of the above types of evidence may well not be enough to constitute probable cause. For instance, it's very unlikely that either the suspect's criminal record, or his mere presence in a high-crime area, is by itself enough to constitute probable cause to arrest him.

Under what circumstances, if any, will the police's or magistrate's misconduct deprive prosecutors of the ability to use the good-faith exception to the exclusionary rule?

Here are the most important situations in which less-than-stellar conduct on the part of the magistrate or the police will cause the good-faith exception not to apply: 1. The police officer who prepared the affidavit on which the search or arrest warrant was based knewthat the information in it was false, or recklessly disregarded its truth or falsity. Cf. U.S. v. Leon, 468 U.S. 897 (1984). 2. The magistrate who signed the warrant failed to take the required "neutral and detached" stance (e.g., she became part of the investigation, by helping the police execute the warrant). Cf. Leon. 3. The affidavit so obviously fails to demonstrate probable cause that police or magistrate reliance on it is "entirely unreasonable" (e.g., the affidavit merely states in a conclusory fashion that the police have probable cause to believe that a search of a particular place will produce evidence of crime, and does not supply any of the facts on which that belief is supposedly based). Cf. Leon. 4. The officer executing the search or arrest warrant is on notice of systemic errors in the warrant-generation process, making the officer's reliance on the warrant "reckless" (e.g., the officer knows that under the department's process for generating arrest warrants, many workers have knowingly made false entries to lay the groundwork for future false arrests). Cf. Herring v. U.S., 555 U.S. 135 (2009).

Fork it over. Officer Ralph was patrolling a residential area beset by a number of nighttime burglaries. At 1:00 A.M., he saw Donny walking down an empty street alone, carrying a backpack. Ralph turned his car around and stopped fifty feet from Donny. As Ralph, carrying his nightstick, approached Donny, Donny ran. Ralph gave chase. Donny fell rounding the corner. When he hit the ground, the backpack opened, spilling silver flatware onto the pavement that later proved to have been stolen. Donny claims that Ralph seized him unlawfully. This claim:

Lacks merit, because Donny was fleeing from Ralph when the backpack opened.

Stop, thief! Betty calls the police when she sees a man climbing through a ground-floor window in a house across the street. When Police Officer Alice arrives, she sees a man running out of the neighbor's house carrying a television set. When Alice yells, "Hey, hold up! I'm a police officer!," the man runs into the next-door neighbor's house. Alice gives chase and enters the house, looking for the burglar. She opens a closet and does not find the burglar, but she does see a baggie labeled "marijuana." She seizes it and continues her search. In the master bedroom, Alice finds the burglar crouched in the corner. She arrests him. When he gets up, she sees a baggie labeled "heroin" on the floor behind where he was hiding. She seizes it. If the neighbor moves to suppress the marijuana and heroin, he will:

Lose, as to both the marijuana and the heroin. Officers can make a warrantless entry into a home to make an arrest only if they are in hot pursuit; otherwise an arrest warrant is necessary to enter the suspect's home and a search warrant is necessary to look for the suspect in the home of a third party.

In a stop and frisk, for how long may the suspect be detained?

No longer than the circumstances justifying the search require. Also, the search should be no more intrusive than necessary to verify or dispel the officer's suspicions. The Court has approved even a 20-minute detention as a stop, where the Court found that the police exercised diligence in expediting the transaction, and didn't unreasonably fail to recognize or pursue less-intrusive alternatives. U.S. v. Sharpe, 470 U.S. 675 (1985). EXAMPLE: Officers in the field have reasonable grounds to detain Rip van Winkle. As they check with headquarters by radio to see if Rip is wanted for any crimes, the radio malfunctions, and it takes the police 20 minutes, instead of 5, to check up on Rip. The police have no cellphone or other means of checking apart from the radio. The stop is probably valid. The test is whether the police have acted diligently, and have not unreasonably failed to recognize or pursue less-intrusive alternatives. That test seems satisfied here. NOTE: A warrantless stop-and-frisk cannotinclude a suspect's removal to the police station; it must be an "on the street" stop. Hayes v. Florida, 470 U.S. 811 (1985). (A station-house trip requires probable cause, not just the reasonable suspicion required for a stop and frisk. Dunaway v. New York, 442 U.S. 200 (1979)).

The police had probable cause to believe that a particularly vicious murder had been committed by Gerald. They therefore obtained a warrant to arrest Gerald. They knew that Gerald lived with his brother, Harold, who was also thought to be a pretty nasty character (but who was not directly implicated in the murder for which they were about to arrest Gerald). The three arresting officers rang Gerald's doorbell and received no answer. They broke into the house. In the basement, one of the officers found Gerald waiting with a knife in his hand; that officer disarmed Gerald and handcuffed him.After this, another officer inspected the second floor of the house, calling out, "Harold, or anybody else who's there, come out with your hands over your head." He then looked in every room, and every closet large enough to hold a human being. In the closet of one of the bedrooms, he found a cache of weapons, which included what was eventually shown to be the murder weapon. It turned out that no one else was home, since Harold was away on vacation. At his murder trial, Gerald has sought to suppress the murder weapon found in the closet, on the grounds that it was the fruit of an unlawful search. Should Gerald's suppression motion be granted? _________________

No, probably. The search of the closets here cannot be justified as a search incident to the arrest of Gerald, since the area of the search went far beyond any area to which Gerald could possibly have had ready access once he was handcuffed. But the Supreme Court has held that once an arrest takes place in the suspect's home, the officers may conduct a protective sweep of all or part of the premises, if they have a "reasonable belief" based on "specific and articulable facts" that another person who might be dangerous to the officer may be present in the areas to be swept. Maryland v. Buie. While doing such a protective sweep, the police may not make a detailed search of the premises, merely a cursory look to make sure that there is no one else around who may be dangerous. This seems to be what the officer was doing, since Harold was known to live at that address and thought to be possibly dangerous; also, the degree of risk was magnified by the fact that Gerald was found in the basement holding a knife, indicating that he had somehow learned of the possibility of the arrest (so that he could have tipped off Harold as well). Since weapons were found in a closet large enough to hold a man, and thus large enough to be a proper subject of the protective sweep, the officer probably acted legally in opening that closet. Once he rightfully opened the closet, he had the right to seize anything that was in plain view, including the murder weapon.

Over the last 30 years or so, has the Supreme Court been expanding the coverage of the exclusionary rule?

No, quite the contrary. The coverage of the exclusionary rule has been declining in recent years, principally as a result of U.S. v. Leon, 468 U.S. 879 (1984), in which the Court recognized a "good-faith exception" to the exclusionary rule. The most important element of the good-faith exception provides that if the police had a good-faith belief in the validity of a search warrant or an arrest warrant, any evidence obtained pursuant to the warrant will be admissible against the defendant in the prosecution's case-in-chief, even if the belief is shown to have been erroneous. Additionally, the Supreme Court has further limited the coverage of the exclusionary rule by finding it inapplicable to violations of the requirement that the police "knock and announce" their presence before forcibly entering a dwelling. Hudson v. Michigan, 547 U.S. 586 (2006).

Party hardy. Scott and Linda Harrison were hosting a high school graduation party for their son, Philip. At midnight, as the party entered its fifth hour, their next-door neighbors became concerned when they heard a loud crash inside the Harrison's house. When no one answered the Harrison's phone, the neighbors called the police. Officer Joyce responded to the call. She had dated Scott in high school, and was devastated when he broke up with her. Though years later now, she still harbored deep resentment toward him. When Joyce arrived, all seemed quiet at the Harrison's. When no one answered a knock at the door, Joyce looked through the window. She saw a shattered punch bowl on the floor and a small pool of blood alongside it. Scott was seated nearby, bleeding from his arm and staring blankly out the window. Wanting to confront him about his "mistreatment" of her years earlier, Joyce forced the door open. Once inside, she found two teens sitting on the stairs drinking beer. Joyce arrested Scott for providing alcohol to minors. If Scott challenges the warrantless entry, is he likely to prevail?

No, since Scott appeared to be in need of medical attention.The need to address threats to individuals' physical well-being is at the heart of the emergency-aid doctrine. The injury, whether real or potential, may be to anyone inside the house and need not be serious or life-threatening. Before entering, Joyce noticed a cut on Scott's arm that had produced a small pool of blood and was still bleeding. Scott also appeared to be in a state of shock. These facts are unquestionably sufficient to justify Joyce's warrantless entry into the Harrison's home.

Davies, a state trooper, had long suspected Johnson of illegally possessing and selling handguns without the proper license; Davies knew that Johnson didn't have either a handgun dealer's license or a license to possess a handgun, but Davies didn't have probable cause (just inchoate suspicion, based on local rumors) to believe that Johnson possessed and dealt in these items. While on routine patrol one day, Davies spotted Johnson driving his car with a blown headlight, a minor traffic violation. Davies did not have any reason to believe that Johnson had any handguns in his car at that particular moment. Nonetheless, hoping that he might be able to catch Johnson red-handed with some unlicensed guns in the car, Davies decided to stop him, using the blown headlight as a pretext. He pulled Johnson over and wrote out a ticket for the headlight. While writing the ticket, Davies looked through the car's window and saw a handgun partially hidden under the front passenger seat. Davies then searched the entire car and found a cache of handguns, for which Johnson didn't have the required licenses. Davies seized the handguns. At his trial for illegal possession and sale of handguns, Johnson has moved to suppress the handguns as the fruit of an unlawful search. Should this motion be granted? _________________

No. A stop of a driver is not made "unreasonable" (and thus does not violate the Fourth Amendment) merely because the stop was based upon a minor traffic violation that served as a pretext for a stop made for some other purpose. Whren v. U.S. In other words, the real reason for the stop is irrelevant — once a police officer has probable cause to believe that even a minor traffic violation has occurred, he may stop the vehicle even though the stop is being used for the purpose of seeking evidence of some other crime for which the police officer has no probable cause or even reasonable suspicion. If the stop and its consequences then give the officer probable cause to believe that contraband or evidence of crime may be found in the car, the officer may go on to make a warrantless search. In this "pretext stop" situation, you must look for two elements : (a) a valid reason for the original stop (i.e., probable cause to believe some sort of offense has been committed, or at least an objective reason for suspecting criminality [see "stop and frisk," supra, p. 155]); and (b) something (perhaps something that only occurs as a result of the stop) that then gives the stopping officer probable cause to conduct a warrantless search . For instance, suppose Davies had stopped Johnson, written the ticket, and then searched the entire car without first seeing the handgun under the front passenger seat. Under these facts, (b) would not be satisfied, and Davies would nothave had probable cause to conduct a warrantless search of the car; therefore, the seizure of the handguns would be suppressed at trial. See Knowles v. Iowa (where officer makes stop for traffic ticket and does not make arrest, officer may not without more conduct search of car's interior).

Does an arrest warrant authorize the police to enter a third party's home in an effort to find the suspect named in the arrest warrant, assuming that there are no exigent circumstances?

No. Absent exigent circumstances, an arrest warrant alone does not authorize the police to enter one person's home to arrest another person. Steagald v. U.S., 451 U.S. 204 (1981) (noting that a contrary result would pose "significant potential for abuse").

The police had probable cause to believe that a particular recent burglary had been carried out by Wilson, who lived at a known address in the community. There was no reason to believe that Wilson would flee the jurisdiction. The police considered getting a warrant for Wilson's arrest. But before they got around to doing so, one officer saw Wilson walking down the street. The officer went up to Wilson and arrested him for the robbery. The officer then searched Wilson incident to the arrest, and found in Wilson's pocket proceeds from the robbery (namely, a ring). At Wilson's trial for the robbery, he seeks to suppress the ring, on the grounds that it was the unlawful fruit of an arrest that was made without a warrant where a warrant could have been obtained. Should Wilson's suppression motion be granted? _________________

No. Arrest warrants are as a general rule not constitutionally required. This is true even where the police have sufficient advance notice that procurement of a warrant would not jeopardize the arrest. See U.S. v. Watson.

Bart was a master drug smuggler, who specialized in importing cocaine from Colombia. Bart was smart enough never to smuggle the cocaine in himself. Instead, he used various "mules." On one occasion, Bart recruited Karen to serve as a mule — Bart attached a kilogram of cocaine owned by Bart to the inside of Karen's thigh. Bart and Karen traveled on the same plane from Colombia to Miami. (They took the same flight so that Bart could immediately retrieve the cocaine after the flight and market it at retail.) At Miami Airport, Drug Enforcement Administration (DEA) agents focused their attentions on Karen not because of any objective grounds for suspicion, but merely because one of them thought that Karen "looked shifty and nervous." In violation of the Fourth Amendment, the DEA agent stopped Karen, took her into a private room, and performed a strip search on her. There, the agent found the cocaine. Bart was implicated because he showed up on the airline's computer reservation system as having been Karen's traveling companion. At Bart's trial for cocaine smuggling, the prosecution plans to offer the cocaine into evidence against him. At a suppression hearing, Bart has moved to exclude the evidence on the grounds that it is the fruit of the detention and searching of Karen, in violation of the Fourth Amendment; Bart also points out that the cocaine belongs to him. Should Bart's suppression motion be granted? _________________

No. As in the prior question, Bart's problem is that he lacks standing to object to the unlawful seizure and search of Karen. The fact that Bart had a possessory interest in the cocaine seized is not by itself enough to allow him to challenge the constitutionality of the seizure. Only if Bart's possession of the cocaine gave him a legitimate expectation of privacy with respect to that item will Bart be allowed to protest. Rawlings v. Kentucky. Here, once Bart put the cocaine on Karen's person, where any customs agent might look at it, and where Karen might have shown it to third persons (e.g., her friends), Bart almost certainly lost any expectation of privacy he had regarding that cocaine. The facts here are similar to those in Rawlings (D put his drugs in X's handbag, which was then illegally searched; D was held to have no right to object to the search and seizure of the drugs).

Officer O'Brien was irrationally prejudiced against young males with long hair, and against anyone who looked like a "hippie." O'Brien spotted Peter and Rachel walking down the street hand in hand, and developed a hunch, based solely on their long hair and style of clothing, that the two were probably in possession of drugs. He arrested them both on drug charges, and escorted them to the station house. There, each was subjected to a "clothing search," which was done to every arrestee in order to inventory their possessions and to protect against concealed weapons. The two were searched simultaneously. In Rachel's purse, five marijuana cigarettes were found. Rachel looked imploringly at Peter when this occurred. Peter then said, "I can't let Rachel take the rap for this — those cigarettes are mine." Peter was charged with marijuana possession, and the prosecution sought to use his station-house confession against him. Peter objected on the grounds that this statement was a direct fruit of his unlawful arrest. Should the court grant Peter's suppression motion? _________________

No. Clearly there was some connection between the illegal arrest, and Peter's self-incriminating statement. But this does not automatically mean that the statement is the tainted fruit of the illegal arrest. The issue is always whether there have been intervening events sufficient to "purge" the taint. Here, the fact that Peter's statement was somewhat voluntary, and was not in response to any questioning, is a factor strongly tending to purge the taint. On very similar facts, in Rawlings v. Kentucky, the Supreme Court concluded that the spontaneous outburst was not the tainted fruit of the admittedly illegal arrest.

Armand Chisel, noted tycoon and art collector, suffered a terrible burglary in his collection. Chisel explained to the police that two valuable Van Gogh paintings had been stolen from him, one entitled "Irises" and the other entitled "Lilies." He showed them colored photographs of each. Later, the police developed probable cause to believe that both of these paintings might be found in the home of a notorious local fence, Frank. Due to their desire to do the least possible work, the police prepared an affidavit that listed these facts, but that requested a warrant to search for and seize only "Irises," without mentioning that "Lilies" might also be found at Frank's premises. The warrant was issued. The officers went into Frank's one-room studio apartment, saw (and seized) "Irises" right away, and then noticed "Lilies" on the wall right near where "Irises" had been. They seized "Lilies" as well. At Frank's trial for receiving stolen goods, may he have "Lilies" suppressed as the fruits of an unlawful seizure? _________________

No. Even though "Lilies" was not mentioned in the warrant, the police were entitled to seize it because it was in plain view while they were carrying out their lawfully-issued warrant for "Irises." It is not required, for application of the plain view doctrine, that the police's discovery of an item in plain view be "inadvertent," so the fact that the police knew in advance that they were just as likely to find "Lilies," which was not named in the warrant, does not matter. See Horton v. California.

Does the Fourth Amendment cover searches by U.S. officers of the houses of foreign nationals where the house is outside the United States?

No. Fourth Amendment protections (e.g., the warrant requirement) do not apply when U.S. officials search the foreign residence of a foreign national. U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990). RELATED ISSUE: What if the search is of an alien's residence inside the United States? The Supreme Court hasn't squarely addressed this issue; it was left open in the Verdugo-Urquidez case. But the Court has suggested that aliens will get constitutional protection when they are in the United States, at least if they have developed substantial connections with the U.S. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).

The police received a tip from a reliable informant that cocaine was being processed at a warehouse at 481 Main Street. The informant explained that he knew this because he had been a member of the operation, until he quarrelled with the other principals. The police went to the 481 Main address, and discovered a locked warehouse that could plausibly have been a cocaine processing factory. At this point, they knew they had probable cause to get a search warrant, and would normally have done so. Normally, they would have staked out the building while they got the warrant (so that no one could remove or destroy evidence). But to save time and to eliminate the need for a stakeout, they decided to see if they could break in first. They successfully broke into the building, and saw that it was indeed a cocaine-processing factory. At that point, without touching anything, they re-locked the premises, applied for a warrant (using only the information that they had had prior to the break-in), received the warrant, went back to the building, broke in again, and seized the cocaine and other evidence. This evidence was introduced against Jerry, one of the principals, in his trial for drug-related offenses. Jerry has moved to suppress the evidence, on the grounds that it was obtained in violation of his Fourth Amendment rights (since he was the owner of the building, as well as one of the owners of the processing operation). Should Jerry's motion be granted? _________________

No. Here, as in the prior question, the "independent source" exception saves the prosecution. On very similar facts, the Supreme Court held that since the police ultimately seized the evidence based on a properly issued warrant, the fact that they first viewed the evidence by an illegal break-in was irrelevant — the subsequent with-warrant seizure was an "independent source." See Murray v. U.S. If the court believed that the police would not have bothered to get a warrant had they not first broken in and seen the evidence, the result might be otherwise. But here, the facts tell us that if the police had been unable to break in, they would have taken the extra trouble to get a warrant anyway. That being the case, the second entry is viewed as an independent source. The fact that the first break-in made life easier for the police (in the sense that had they not discovered anything wrong once they broke in, they would not have bothered to get the warrant) is viewed as irrelevant.

Does the Fourth Amendment require a police officer to have a warrant before she makes a custodial arrest of a person who commits a minor criminal offense in the officer's presence?

No. In Atwater v. City of Lago Vista, 532 U.S. 318 (2001), the Supreme Court rejected the claim that an arrest warrant should be required for custodial arrests on very minor charges, such as misdemeanors. So no matter how minor the offense, if it's committed in the officer's presence, the officer may make a warrantless arrest. RELATED ISSUE: The Court in Atwatercontinued to leave open the question of whether this rule allowing warrantless arrests applies only to minor crimes committed in the presence of the officer. So we don't know whether an arrest warrant is required where the officer proposes to arrest a suspect for a minor crime as to which the officer's probable cause comes from a third party rather than from the officer's personal observation of the offense being committed.

In cases involving the Fourth Amendment's prohibition of certain searches or seizures, is the exclusionary rule required by the Constitution?

No. It is a judicially created remedy, not a constitutional right. The Supreme Court has interpreted the Fourth Amendment as making certain searches and seizures unlawful, but not as requiring that evidence obtained from unlawful searches and seizures be excluded in criminal trials. Therefore, it's up to the federal courts (mainly the Supreme Court) to decide, as a policy matter, how far the exclusionary rule should be extended. U.S. v. Leon, 468 U.S. 879 (1984).

The First National Bank of Pound was robbed by two masked gunmen, and for two months the police had no useful clues. Then, in an episode unrelated to the bank investigation, Officer Jackson of the Police Department learned from an informant that Albert possessed some illegal weapons in his apartment. The informant had proved unreliable in the past, so this tip did not give Jackson probable cause to obtain a warrant to search Albert's apartment, or to arrest Albert. Jackson decided to set forth without a warrant, since he knew he couldn't get one. At a time when he knew Albert was not home, he broke into Albert's apartment, and began ransacking the place. In a closed box underneath Albert's bed, Jackson found a batch of letters, which he started reading more from voyeuristic curiosity than for any other reason. The first letter, written by Bertha to Albert, contained one sentence which read, "When Carter and I robbed the First National Bank of Pound last month, we got away with $89,000 in loot, so I'd like to spend some of this money on one of the weapons you're selling." Jackson immediately realized that this was probably the key to the bank job, so he took the letter and left Albert's apartment. Solely because of the letter, Bertha was charged with doing the bank job. At her trial, the prosecution sought to introduce the letter into evidence. Bertha objected, on the grounds that the letter was seized in violation of the Fourth Amendment. Must the judge exclude the letter from evidence? _________________

No. It is true that the exclusionary rule allows evidence seized in violation of the Fourth Amendment to be suppressed ("excluded") from criminal trials. However, the defendant may only obtain suppression of materials that were seized in violation of her own expectation of privacy. This is the rule of "standing." See Alderman v. U.S. The break-in by Officer Jackson, made without probable cause and without a warrant, was clearly illegal and a violation of Albert's Fourth Amendment rights. But that break-in did not violate Bertha'srights, since she had no possessory interest in Albert's apartment, was not present there, and did not "own" the letter once she had sent it. Since no reasonable expectation of privacy on Bertha's part was violated by the search, the illegality cannot serve as the basis for suppression of the letter in her trial.

Will the exclusionary rule apply when the police reasonably rely on information in a court or police database falsely indicating that an arrest warrant is outstanding?

No. The Supreme Court has addressed this issue in a couple of cases, and has concluded that the police officer's good-faith and reasonable (but mistaken) belief that an arrest warrant exists prevents the application of the exclusionary rule to evidence found incident to this wrongful arrest. For instance, in Herring v. U.S., 555 U.S. 135 (2009), an arrest warrant had been issued, but had later been recalled; the police department's warrant-tracking system had failed to be updated, so that the arresting officer reasonably but mistakenly believed that the warrant was still outstanding. Even though the error was made by the police department, the Court found that the officer's reasonable reliance on the existence of the warrant was enough to qualify for the good-faith exception, so the evidence seized pursuant to a search incident to that wrongful arrest was admissible. RATIONALE: The Court views the deterrence of police wrongdoing as being the principal benefit of the exclusionary rule. Where an officer reasonably and in good faith relies on department warrant records that turn out to be inaccurate, there is no deterrent effect from applying the exclusionary rule (assuming that the inaccurate records did not stem from "recurring or systemic negligence.") Herring.

Detective Lawrence of the Langdell police force received an anonymous call, in which the caller stated, "The occupant of apartment 3B in my building is selling drugs from that apartment. I live at 1865 Center Street." The caller did not say how he came by this information. Lawrence believed that this information was enough to establish probable cause to search apartment 3B at the 1865 Center Street address. He went before a neutral and detached magistrate, and presented the above facts to her in an affidavit. Lawrence did not conceal any relevant facts. The magistrate agreed with Lawrence that the facts here established probable cause, and the magistrate therefore issued a warrant to search apartment 3B of 1865 Center Street "for drugs or any paraphernalia associated with drugs." Lawrence executed the warrant by its terms (breaking into the apartment when there was no answer), and strictly confined his search to the scope of the warrant. He found cocaine that seemed to be held for resale, and seized it. The occupant of the apartment turned out to be Herb. Herb was tried for a variety of drug charges. The prosecution offered the seized drugs as part of its case-in-chief. Herb moved to suppress the seized drugs, on the grounds that they were the fruits of an illegal search, since there was in fact no probable cause to support issuance of the search warrant. The trial judge has agreed with Herb that the warrant was issued without probable cause, because there was no indication that the informant was either generally reliable or reliable in this case, so that by the "totality of the circumstance" test (Illinois v. Gates), probable cause for the warrant did not exist. However, the trial judge has also concluded that Lawrence reasonably believed, on the facts known to him, that probable cause existed; the judge also believes that the magistrate similarly made a reasonable mistake as to the existence of probable cause. Must the trial judge order the drugs suppressed from Herb's trial? _________________

No. The Supreme Court has held that the exclusionary rule does not bar the use, even in the prosecution's case-in-chief, of evidence obtained by officers who acted in reasonable reliance on a search warrant that was issued by a detached and neutral magistrate but that was ultimately found to be unsupported by probable cause. U.S. v. Leon. Since the facts tell us that Lawrence reasonably believed that he had probable cause, furnished an affidavit stating everything he knew, and got the affidavit approved and the warrant issued by a neutral and detached magistrate, the requirements for the special "good faith" exception of Leonare satisfied. The net result is that the prosecution gets to use evidence in its case-in-chief that was seized in direct violation of the Fourth Amendment's prohibitions on warrants issued without probable cause.

Oscar was a police officer who had for several months worked as the handler of a trained drug-sniffing dog, Rover. Oscar was standing at an intersection of public streets, while wearing his police uniform, and accompanied by Rover on a leash. Gina, wearing a backpack, approached Oscar and asked for directions to a nearby location. Oscar, who had no suspicion that Gina was engaged in any sort of wrongdoing, began to answer. During the ensuing brief conversation, Gina put her backpack on the pavement. Rover circled around the backpack, sniffed it several times, and gave a special signal (sitting and raising his paw). As Oscar knew, this signal meant "I smell narcotics here." Oscar therefore, without asking Gina's permission, picked up the backpack and opened it; when he did so, he immediately spotted a large packet of marijuana, and arrested Gina for marijuana possession. At a suppression hearing, Gina argued that unless the prosecution could show that, based on recent statistics about Rover's record of "hits" and "misses" in the field, a positive drug signal by Rover was generally reliable, the marijuana must be excluded as a Fourth Amendment search made without probable cause. The prosecution did not have any evidence available to show how frequently Rover's in-the-field positive drug signals had recently proved accurate or inaccurate. However, the prosecution produced evidence that Rover had, three years before, completed a standard canine-drug-sniffing training program, and that at least monthly, the police department put him through "workouts" to keep his drug-detection skills up-to-date. Should the court grant Gina's suppression motion? _________________

No. The facts here are very similar to those in Florida v. Harris. There, the Supreme Court held that a positive signal from a police dog trained in narcotics-sniffing creates probable cause for a drug search, as long as there is evidence that the dog has been properly trained. According to Harris, the defendant is entitled to try to show that the dog's in-the-field performance is so inaccurate that a positive signal does not constitute probable cause; but the prosecution does not have the burden to come forward with in-the-field performance statistics (proof of adequate training suffices). So here, the prosecution's evidence that Rover was properly trained, and his skills were kept up-to-date, was enough to establish that his signal gave Oscar probable cause to search the backpack for narcotics. Now, if the episode had begun by Oscar's making an illegal stop of Gina (e.g., stopping her on the street on a random suspicionless hunch that she might be involved in illegality), then the fruit of the search would be excludable no matter how reliable Rover's post-stop signal was, since the police opportunity to get the signal would have derived directly from the illegal stop. But here, it's clear that the encounter was initiated by Gina, not Oscar, so there is no issue about whether police illegality proceeded Rover's sniff and positive signal. Therefore, the marijuana is admissible.

Officer Nelson, dressed in plain clothes, walked a foot beat around the neighborhood to try to spot criminal activity. His beat was a high crime area, in which there was an especially large amount of automobile theft. Nelson spotted a red Ferrari pull up and stop at a traffic light. Nelson could tell that the driver was a young black male. Nelson was quite prejudiced against blacks in general, and believed (in this case, quite irrationally) that few young blacks could afford Ferraris, and that this Ferrari was likely to have been stolen. (Not only did Nelson not have probable cause for this belief, but his belief would not even qualify as a "reasonable belief based upon objective criteria.")Nelson went over to the car, asked the driver to roll down the window, and said, "Do you know where the nearest used-car dealer is?" Nelson was not in fact interested in getting an accurate answer to this question; he merely wanted to see whether the driver was nervous, whether there were lock-picking tools in the car, or whether there was any other sign of criminal wrongdoing. Nelson was prepared to let the car drive on if the driver didn't want to answer his question.The driver had no idea that Nelson was a police officer. The driver (whose name was Vern) seemed extremely nervous; he tried to drive away, but the car stalled. Nelson saw through the rolled-up window that there did not seem to be a key in the ignition, but rather a series of loose wires hanging out. At that point, Nelson arrested Vern on charges of car theft. (Assume that by that time, Nelson had probable cause to believe that Vern had committed this crime.) At his trial, Vern has moved to suppress Nelson's testimony about what he saw, and any fruit of the subsequent search of the car, on the theory that all of this stemmed from an initial Fourth Amendment violation by Nelson in stopping Vern's car in the first place. Should Vern's motion be granted? _________________

No. This question, at first glance, seems to involve the issue of whether Nelson had enough suspicion to make a "stop" of the Terry"stop and frisk" variety. However, in reality, no stop (or other Fourth Amendment seizure) occurred at all. In deciding whether a Fourth Amendment seizure has occurred, the Supreme Court uses a "reasonable person" test, by which a seizure has occurred only "if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." U.S. v. Mendenhall. Vern did not know, initially, that Nelson was a police officer, or that he was anything other than what he purported to be, which was a civilian who wanted directions. Therefore, a reasonable person in Vern's position would have believed that he was free to disregard the request for information and to drive on. Since Vern's freedom of motion was not circumscribed, there was no Fourth Amendment "seizure" of his person or of his vehicle, up till the moment where Nelson saw the hot-wiring and made the arrest. Therefore, it didn't matter that Nelson had absolutely no rational grounds for suspicion at the time he walked up to the car and requested the information.

As of 2010, Supreme Court precedents left it unclear whether police use of a GPS device to track all the movements of a suspect's vehicle over an extended period constituted a search requiring a warrant. At that time, the binding precedent on this issue in states of the federal First Circuit was a 2009 First Circuit decision, Adams v. U.S. (not a real case), holding that even extended use of a GPS tracking device attached to a suspect's car was not a "search" and therefore did not require a warrant. In mid-2010, federal DEA agents in Massachusetts (part of the First Circuit) attached a GPS to the vehicle of Devin, who was suspected of being part of a drug-smuggling ring. They did not request a warrant, but they had probable cause to believe that tracking Devin's vehicle would lead to proof that Devin was involved in the ring. The agents were not aware of the Adams ruling, but believed no warrant was needed because no search would occur. After 15 days of surveillance, data gathered via the GPS revealed multiple trips by Devin to the home of another known member of the ring. At Devin's federal criminal trial in late 2010, this GPS data was allowed into evidence by the judge, who relied on the Adams decision. Devin was convicted. In 2012, while Devin was about to appeal his conviction, the Supreme Court decided in U.S. v. Jones (a real case) that use of a GPS tracking device attached to a suspect's property (such as a vehicle) automatically constitutes a search, and thus requires a warrant. Devin then argued, during a timely appeal to the First Circuit, that he should get the benefit of the Jones ruling, in which case the DEA use of the GPS search was illegal without a warrant, justifying a new trial. Should the First Circuit grant Devin's new-trial motion? _________________

No. U.S. v. Leon says that in some circumstances, if the police have a good faith belief that the search they are doing is lawful, the fact that it turns out not to be lawful does not trigger the exclusionary rule. This principle has been extended to the situation in which the police rely on a particular binding (and applicable) precedent that makes the search legal, but where that precedent gets overruled before the present case has been finally decided. Davis v. U.S. (2011). This principle applies here: for a search done in 2010 in Massachusetts, the applicable constitutional rule on the issue of whether GPS tracking for an extended period requires a warrant was the rule set forth in Adams, that no warrant was required. The fact that this rule was overturned by the Supreme Court while D's case was still pending does not prevent the evidence from being admisible despite the exclusionary rule. So Devin ends up not getting the benefit of the law as it exists at the time of his appeal.

Does a valid stop and frisk require probable cause for arrest?

No—probable cause to arrest is not necessary for a stop-and-frisk, even though each part is a "seizure" or "search" implicating the Fourth Amendment. All that's necessary is that before the stop, the officer has reasonable suspicion, based on specific and articulable facts, that criminal activity may be afoot; and then for the frisk, that he has reasonable grounds to believe the suspect may be armed. As to the latter, the suspect's sudden movement toward a coat pocket, the officer's knowledge that the suspect has been armed in the past, or a suspicious bulge in the suspect's pocket, might each be enough to give the officer a reasonable belief that the suspect may be armed. RATIONALE: The reason the Court doesn't require probable cause for either the stop or the frisk portion of these brief encounters is that the Court applies a balancing test that gives more weight to crime prevention than to protecting individuals against what is ultimately—if they have no weapons and are not involved in a crime—a relatively small, brief, and justifiable intrusion.

Don't mess with Texas. Mary Kate was manning the cash register at her family's convenience store at 1:00 a.m. in downtown Houston when a man entered the store, pointed a gun at her, and demanded that she empty the cash register. She remembered that her father kept a loaded pistol under the counter for protection. When the man looked away, she grabbed it and fired at his shoulder. As soon as he was hit, the robber ran out of the store. Mary Kate then called 911, reported the robbery, and described the robber to the police. Two hours later, Anton turned up at the local hospital for treatment for a gunshot wound in the shoulder, which he claimed he had inflicted on himself accidentally. The police doubted his story and noted that he matched Mary Kate's description. They brought Mary Kate to the hospital. When she saw him, she exclaimed: "I think that's the man who tried to rob my family's store!" When Anton refused to allow the police to obtain a blood sample for comparison to blood left at the scene, the officer ordered a nurse to take the sample forcibly. If Anton challenges the officer's actions, he will:

Prevail, because a reliable blood sample could be obtained later. In this fact pattern, as in McNeely and Schmerber (also discussed in Chapter 6), blood is forcibly taken from a suspect for evidentiary purposes. In Schmerber, the procedure was necessary to determine if the defendant had been driving under the influence and special circumstances made it impractical to obtain a warrant. Here, the blood evidence will establish the suspect's presence at the scene of the crime. In evaluating the permissibility of the procedure, we must be mindful of the considerations referenced by the court in Rubin. Unlike Schmerber, the blood evidence in this case is not "readily destructible." Whereas the body will "burn up" alcohol with the passage of time so as to hinder prosecution for DUI, delay has no impact on the ability of law enforcement personnel to match the suspect's blood to that found elsewhere. Neither will the delay place police officers in any danger, since the suspect is located in a medical facility.

If a defendant wants to have an item of illegally obtained evidence against him suppressed, can he wait until his trial and object to the evidence when the prosecutor seeks to introduce it?

Probably not. In the vast majority of states (and in federal proceedings), the defendant must first move to suppress the illegally obtained evidence in a pretrial motion. The rationales for requiring a pretrial motion are: 1. to avoid interrupting the trial; 2. to prevent mistrials due to exposure of the jury to unconstitutional evidence; 3. to weed out cases where there is not enough admissible evidence to convict; 4. to give the prosecution a chance to develop "untainted" evidence or change its theory of the case; and 5. to obtain early resolution of the legality of the evidence, thus giving the defendant incentive to plead guilty (or change his strategy) if his motion to suppress is denied. NOTE: A small minority of states follow the contemporaneous objection rule, allowing the defendant to wait to challenge illegally obtained evidence at the moment it's introduced at trial. NOTE: If the defendant fails to make a timely objection, he waives his right to do so.

Police were investigating a sexual assault. Surveillance footage of the small apartment building where the assault took place showed an individual wearing a mask entering the building with a key just prior to the attack. Detectives focused their attention on the occupants of one unit, Terence and his fiancée Sally. They interviewed Terence and Sally at the apartment, and Terence gave conflicting accounts of his whereabouts at the time of the crime. While the detectives found Terence's answers suspicious, they lacked probable cause to arrest him at that point. However, as the officers were leaving, Detective Yasmin noticed an envelope addressed to Terence from 23andme.com on the kitchen table. When Yasmin commented that she had sent a DNA sample to that company to learn more about her own heritage, Sally volunteered that Terence had done the same and that the envelope probably contained the results.As soon as the prosecutor's office learned this, they sent (without obtaining a search warrant) a package to 23andme containing (1) a printout of the DNA made from semen taken from the sexual assault victim; and (2) a subpoena demanding the identity of anyone who ever submitted a sample to 23andme matching that DNA printout. The company complied, and notified the prosecutor that Terence was a match. Terence has now moved to suppress the identification on grounds that the demand for it constituted a Fourth Amendment search of his private information, and therefore required a search warrant. Terence points out (correctly) that he never authorized 23andme to share any information about him with any other entity. Moreover, Terence points out that 23andme's website promises confidentiality from all inquiries, including those from law enforcement. Should the court grant Terence's motion? _________________

Probably not. Terence probably has a reasonable expectation of privacy in the contents of his DNA. So the real question is whether the fact that he surrendered a sample of that DNA to a third party — 23-and-me — makes a constitutional difference. Until the 2018 decision in Carpenter v. U.S., the answer would have been a clear "no" — the Court had held in a pair of cases from the 1970s (Smith v. Maryland and U.S. v. Miller) that when a person voluntarily discloses data to a third party, the person is deemed to surrender any reasonable expectation of privacy as to that data. But in Carpenter, the Court refused to extend the third-party doctrine to cell site location information ("CSLI"), so the issue is whether the DNA here is similar enough to the CSLI in Carpenter as to justify a similar treatment. In Carpenter, the Court expressly noted that its decision was narrow and did not apply in a number of other contexts, such as "tower dumps" or "conventional surveillance techniques and tools, such as security cameras." In refusing to apply the third-party doctrine to the CSLI in Carpenter, the majority emphasized that the CSLI there provided "a detailed and comprehensive record" of the defendant's movements for 127 days and profoundly invaded the "privacies of life," including the cell phone user's "familial, political, professional, religious and sexual associations." Here, the genetic profile generated by 23-and-me arguably has less wide-ranging implications, in that the profile identifies nothing about an individual's political, professional or religious affiliations. However, by providing a blueprint of Terence's genetic make-up, the profile undoubtedly intrudes upon his deeply private and personal information. So based on privacy concerns alone, it's hard to say whether Carpenterdictates treating the DNA identification here in the same (protected) way as the CSLI in Carpenter. Here is an additional consideration: in the two pre-Carpenter third-party doctrine cases mentioned above, the Court noted that information an individual voluntarily disclosesto a third party loses privacy protection even if, as with the bank records at issue in Miller, the disclosing party assumes the information will be "used only for a limited purpose." Here, Terence voluntarily decided to disclose his DNA to 23andme, and the fact that the website promised confidentiality would not by itself prevent the third-party doctrine from operating. So this factor cuts in favor of applying the third-party doctrine even after Carpenter. One further consideration: the Carpentermajority underscored that CSLI is not "voluntarily disclosed" in the conventional sense, since the carrying and use of cell phones is a "pervasive and insistent part of daily life" and thus "indispensable to participation in modern society." By contrast, providing a DNA sample to learn more about one's racial and ethnic heritage is truly voluntary in the conventional sense. (Nor is obtaining this knowledge "indispensable to participation in modern society"). In fact, providing such a sample is more voluntary than creating the bank records at issue in U.S. v. Miller or the phone-numbers-dialed at issue in Smith v. Maryland, since those items were linked to core services integral to daily life. So, all in all, a court is likely to conclude that notwithstanding Carpenter, the third-party doctrine should apply here so as to free the police from the need to procure a search warrant prior to issuing their subpoena.

What test is used to determine whether an informant's information constitutes probable cause for arrest?

The "totality of the circumstances" test. Illinois v. Gates (1983). Elements determining the reliability of the informant include, but are not limited to: 1. if the informant was used on prior occasions, the reliability that the information turned out to have on those occasions; 2. the informant's status as a member of a reliable or unreliable group (e.g., a minister is likely to be more reliable than a member of a professional criminal gang); 3. the clarity of detail in the informant's tip, showing whether and how the informant has personal knowledge of what she's talking about (greater clarity and personal knowledge makes the tip more reliable than, say, vague hearsay); 4. the existence or non-existence of corroboration from other sources; 5. whether the tip includes a declaration against the informant's penal interest (if it does—e.g., she says she bought narcotics from the individual named—the information is deemed to have greater reliability). NOTE: The informant's identity need not be revealed in the warrant affidavit. NOTE: Courts are generally less strict in assessing the reliability of noncriminal informants (e.g., victims or regular citizens) than of criminal informants.

What language does the Fourth Amendment use with respect to searches and seizures?

The Amendment says that "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."

What factors determine whether an area falls within the definition of curtilage?

The Court has announced four factors: 1. How physically close the area claimed as curtilage is to the residence itself (i.e., "proximity") (the closer, the more likely it is to be curtilage); 2. whether the area claimed to be curtilage is included in an enclosure around the residence, such as a fence (enclosure makes curtilage more likely); 3. the uses the area is put to (use for household or family purposes makes curtilage much more likely); and 4. whether the resident has taken steps to prevent observation of the area, such as high fencing (such steps make curtilage more likely). Cf. U.S. v. Dunn, 480 U.S. 294 (1987).

Acting on a hunch that narcotics activity was being conducted at 987 Fisher Road, Oakdale, police decided to collect the occupants' garbage and search it for evidence. In Oakdale, trash is not collected at curbside but rather by municipal workers who come to the back of homes to pick up trash bags placed outside by residents. Disguised as a trash collector, Officer Daly walked to the back of 987 Fisher Road and found four plastic trash bags tied at the top and leaning against the wall of the home. Daly removed the bags and took them to the police station, where she opened them. Inside she found a spiral notebook, which had been ripped into quarters. Daly pieced together the shredded papers, which turned out to document hundreds of narcotics sales. Has a "search" taken place?

The Fourth Amendment does not protect against the seizure and examination of the contents of trash bags left at the curb. This is so because 1) public exposure of the trash forfeits any reasonable expectation of privacy in the bags; and 2) once the trash is conveyed to third-party collectors, the homeowner assumes the risk that they will turn the bags over to police. See California v. Greenwood, 486 U.S. 35 (1988). In our example, however, the closed bags were left within the curtilage of the home, an area afforded greater protection than the curbside. Several courts have found this distinction to be determinative. See Commonwealth v. Ousley, 393 S.W.3d 15 (Ky. 2013); State v. Rhodes, 565 S.E.2d 266 (N.C. 2002). But compare United States v. Redmon, 138 F.3d 1109, 1112 (7th Cir. 1998) (no expectation of privacy with regard to trash left in curtilage where it is publicly accessible and left for collection); United States v. Long, 993 F. Supp. 816 (D. Kan. 1997) (no expectation of privacy with regard to trash left on trailer next to garage). Another distinction between this example and Greenwood is that the police here reconstructed documents that had been ripped up by the homeowner. U.S. District Judge Joseph Tauro concluded that use of a shredding machine manifests an expectation of privacy, which overrides the presumption in Greenwood and was violated by the police action. See United States v. Alan N. Scott, 776 F. Supp. 629 (D. Mass. 1991): Here, defendant had taken steps to protect his privacy rights by shredding his trash. In Greenwoodthe Court stated that it was common knowledge that trash left on the curb is accessible to snoops and scavengers. But, it is not common knowledge that snoops and scavengers may retrieve shredded materials and then painstakingly reconstruct them to learn the contents. Society would accept as reasonable, therefore, defendant's belief that once he shredded his documents, they would be shielded from public examination. On appeal, the First Circuit disagreed, holding that the defendant assumed the risk that through human ingenuity, the papers could be put back together. 975 F.2d 927 (1st Cir. 1992). See also United States v. Hall, 47 F.3d 1091 (11th Cir. 1995) (no reasonable expectation of privacy in shredded documents placed in garbage bag in closed dumpster).

What is the "fruit of the poisonous tree" doctrine?

The doctrine provides that any evidence derived from unlawfully obtained evidence is also inadmissible. The "derivative" evidence is called the "tainted fruit of the poisonous tree." NOTE: There are three major exceptions to this rule: 1. INDEPENDENT SOURCE: If the government shows the derivative evidence was obtained from a source that was independent of the unlawful source, the evidence is admissible. 2. INEVITABLE DISCOVERY: If the government shows, by a preponderance of the evidence, that police would inevitably have found the derivative evidence even had the illegality not occurred, the evidence is admissible. 3. PURGED TAINT: If the derivative evidence is sufficiently removed from the original illegality to purge the taint, it is admissible. Factors to consider: proximity in time between the illegal police conduct and the discovery of the derivative evidence; tightness of the causal relationship between the illegality and the discovery of the derivative evidence; and whether police intent was wrongful.

What is the exclusionary rule? NOTE: When analyzing whether evidence is subject to the exclusionary rule, take all of the following elements into account: 1. Was the evidence obtained in violation of the defendant's Fourth, Fifth, or Sixth Amendment rights? If not, it's not subject to the exclusionary rule. 2. Is the prosecutor seeking to admit the evidence in some other context than in her case-in-chief (e.g., to impeach the defendant, or at the sentencing phase, or in connection with parole revocation or deportation)? If so, the exclusionary rule doesn't apply.

The exclusionary rule is a judge-made rule providing that evidence obtained in violation of a defendant's constitutional rights will not be admitted against her at trial. The rule is a remedy that discourages the police from violating a defendant's Fourth, Fifth, and Sixth Amendment rights. The rationale is deterrence—if the police know the evidence seized won't be admissible at trial, they're less likely to conduct an illegal search and seizure. NOTE: Not only is all illegally obtained evidence excluded, but evidence derived from the illegally obtained evidence is excluded too, as "tainted fruit of the poisonous tree" (with some exceptions). Wong Sun v. U.S.,371 U.S. 471 (1963). NOTE: When analyzing whether evidence is subject to the exclusionary rule, take all of the following elements into account: 1. Was the evidence obtained in violation of the defendant's Fourth, Fifth, or Sixth Amendment rights? If not, it's not subject to the exclusionary rule. 2. Is the prosecutor seeking to admit the evidence in some other context than in her case-in-chief (e.g., to impeach the defendant, or at the sentencing phase, or in connection with parole revocation or deportation)? If so, the exclusionary rule doesn't apply. 3. Does the person challenging the search have the standing to challenge it (i.e., did the search violate his legitimate expectation of privacy)? If not, he can't challenge the search. (This is discussed under topic heading S&S/STD.) 4. Did the police reasonably rely on a facially valid warrant? If so, the "good-faith exception" to the exclusionary rule applies. 5. Is there a valid overriding reason to admit the evidence? (There are three main ways this can happen: (1) there is an independent source for the evidence; (2) the evidence would have inevitably been discovered anyway; or (3) the evidence is sufficiently removed from the illegal "taint," by intervening events or the passage of time, such that the taint is deemed purged.) If so, the exclusionary rule won't apply.

What is the "good-faith exception" to the exclusionary rule?

The good-faith exception, as originally recognized by the Supreme Court, allows the state to use, in its case-in-chief, evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate, even though the warrant is ultimately found to have been unsupported by probable cause. U.S. v. Leon, 468 U.S. 879 (1984). The good-faith exception was then subsequently extended beyond the search-warrant scenario to the case of arrest warrants. If the police reasonably (but mistakenly) believe that there is an arrest warrant outstandingfor a particular suspect and arrest him, evidence found during a search incident to this wrongful arrest will be admissible, at least where any police conduct consists of "nonrecurring and attenuated negligence." Herring v. U.S., 555 U.S. 135 (2009).

In general, how does a police officer get a search warrant?

The officer submits a written, signed affidavit to a neutral, detached magistrate, who decides whether there is probable cause to issue the warrant. The affidavit must set forth the underlying circumstances with facts sufficient to persuade the magistrate that there is probable cause to believe that the search will find items connected with criminal activity, in the place to be searched. What constitutes probable cause varies from case to case. In U.S. v. Ventresca, 380 U.S. 102 (1965), the Court said that the police affidavit must be construed in a "commonsense and realistic fashion." An important requirement is that the information in the affidavit must not be "stale." The magistrate must be satisfied that there is probable cause to believe that seasonable items will be found now, not merely that such items would have been found at some prior time. So the affidavit must generally indicate when the events that are claimed to be the basis for probable cause occurred, so that the magistrate can make this staleness judgment. (Example: Where the affidavit alleges an illegal purchase of beer at a hotel more than three weeks earlier, no probable cause exists for a present search of the hotel. Sgro v. U.S., 287 U.S. 206 (1932).) NOTE: The warrant application is ex parte—the person who owns the premises to be searched is not given notice of the warrant application and thus no opportunity to contest it before it's issued (although subsequently, at a suppression hearing, he can argue that the warrant was not supported by probable cause).

What area may the police properly search incident to a lawful arrest?

They may search only the area that is within the suspect's "immediate control." The Court has described this area as "the area from within which [the suspect] might have obtained either a weapon or something that could have been used as evidence against him." Chimel v. California, 395 U.S. 752, 768 (1969). (However, the "area within suspect's immediate control" is construed very liberally to cover even areas out of the suspect's immediate reach but still within her "vicinity.") RATIONALE: To prevent the suspect from obtaining a weapon or destroying evidence. TIMING: The search must be contemporaneouswith the arrest (not some time thereafter) unless there's a valid reason for the delay. EXAMPLES: Officers can typically search other parts of the room where the arrest is taking place. But they can't search other rooms of the building, apart from the one in which the arrest is made. Where a driver or passenger is arrested, police can search the entire passenger compartment of the car if after the arrest the suspect might still have access to the compartment (in which case the search may include the glove compartment and any containers in the passenger compartment, but not the trunk). Arizona v. Gant, 556 U.S. 332 (2009). NOTE: During a lawful arrest, police can seize evidence even beyond the suspect's control, not by means of the search-incident-to-arrest doctrine but by use of the "plain view" doctrine; that doctrine says that the police can make a warrantless seizure when they are on the premises for lawful purposes and discover in "plain view" items whose incriminating character is immediately apparent.

Melvin Skinner is prosecuted for drug smuggling based on a large amount of marijuana discovered in his motor home. Cell tower location data tracking his phone was used as the basis for the warrant to search the home. Skinner moves to suppress the evidence seized. What are his best arguments?

This case raises expectation of privacy issues regarding both third-party disclosure, as in Smith v. Maryland, as well as public exposure as in Knotts and Jones. In the case upon which this problem is loosely based, U.S. v. Skinner, 690 F.3d 772 (6th Cir. 2010), the court utilized both analyses to conclude: 1) that Skinner had forfeited his expectation of privacy in his location by voluntarily conveying signals to the third-party provider; and 2) because the cell-site data merely provided police with information they could have visually observed on a public highway. Jones was distinguished because there was no secretive placing of a tracking device, and thus no trespass, and because there was no long-term tracking of his whereabouts. This result is overturned by Carpenter v. United States, 138 S. Ct. 2206 (2018), holding such surveillance implicates the Fourth Amendment warrant requirement.

If evidence is seized in derogation of a defendant's rights under the Fourth, Fifth, or Sixth Amendments, what is her principal remedy?

To move to exclude the evidence from use against her at her criminal trial (the exclusionary rule). NOTE: If the trial court erroneously admits the evidence, the defendant's subsequent conviction will be reversed only if the error was prejudicial (i.e., it wasn't "harmless error"). But the burden of persuasion favors the defendant on appeal: the appellate court must reverse the conviction UNLESS it is convinced beyond a reasonable doubt that the defendant would still have been convicted even if the tainted evidence had been excluded (i.e., convinced beyond a reasonable doubt that the error was harmless). Chapman v. California, 386 U.S. 18 (1967).

Under what circumstances is there probable cause to issue a search warrant?

When police make known to a neutral and detached magistrate facts constituting substantial evidence that 1. the items sought are subject to seizure by virtue of their connection with criminal activity (or their status as contraband); and 2. the items will be found in the place to be searched. NOTE: The warrant doesn't have to seek items implicating a particular identified person. In this sense, a search warrant differs from an arrest warrant, which does require that the person to be arrested be identified.

When the officer requesting a search warrant relies on information from an informant, what is the test used to determine whether the information gives probable cause?

Whether the informant's information is reliable under the "totality of the circumstances" test. Illinois v. Gates, 462 U.S. 213 (1983). Elements that the magistrate will consider as part of the "totality" test include 1. what information the informant has supplied in past cases, and the reliability that that information turned out to have; 2. whether the informant is a member of a reliable group (e.g., a minister, as opposed to, say, a career criminal); 3. the specificity of detail in the informant's tip, especially if the informant claims to have personal knowledge of the site that is proposed to be searched; 4. whether the tip includes a declaration against the informant's penal interest (e.g., a statement that she herself bought narcotics from the individual named in the warrant). The informant's identity need not be revealed in the affidavit. (So the affidavit can refer to "a confidential informant known to the affiant.") NOTE: Courts are less strict in assessing the reliability of noncriminal informants (e.g., victims, or ordinary citizen-eyewitnesses) than of criminal informants. NOTE: The informant's information must be "fresh" (i.e., there must be probable cause to believe the items in question are still at the location to be searched).

Does a wiretap constitute a search under the Fourth Amendment?

Yes, because it violates a reasonable expectation of privacy. Therefore, a search warrant is normally required before a wiretap can be used, since search warrants are normally required before any Fourth Amendment search can occur. Katz v. U.S., 389 U.S. 347 (1967). EXCEPTIONS TO WARRANT REQUIREMENT: No warrant to use a wiretap or bug is necessary if: 1. one of the parties to the conversation has consented to it (e.g., he's consented to have a tap put on his phone line); or 2. the speaker doesn't attempt to keep the conversation private (e.g., the speaker talks loudly on a cellphone in a public place, so that a wiretap or bug located in the public place records only the speaker's side of the conversation, and doesn't record anything more than the strangers who are actually present in the public space could have heard).

Authorities suspected that Desmond, an insurance broker, was defrauding his clients by taking premiums from them and then not paying the money to the insurance companies. An affidavit from a police officer described with adequate particularity why the police believed that Desmond was doing this. The principal reason for suspicion of Desmond was a complaint by Edward, a client of Desmond's, that Edward's coverage had been cancelled by the insurer for non-receipt of premiums. The police officer requested, and the magistrate issued, a warrant authorizing a search of Desmond's office and the seizure of "all business books and records relating to Desmond's insurance business." Authorities raided Desmond's office and seized virtually every piece of paper in it, including a diary in which he wrote statements making Desmond seem to be guilty of tax fraud in a transaction unrelated to Desmond's dealings with Edward. In Desmond's tax fraud trial, may he have the diary suppressed on the grounds that the warrant was issued in violation of the Fourth Amendment? _________________

Yes, probably. The Fourth Amendment provides that no warrant shall issue except one " particularly describing the . . . things to be seized." Probably the warrant here was so broad as to violate this requirement. Clearly the warrant could have been limited to records relating to Desmond's dealings with Edward, or in the worst case, records dealing with payments remitted to insurance companies on behalf of customers. The warrant here was utterly unparticular — it asked for all books and records, yet there is very little in an insurance office except books and records. Also, where the items seized have First Amendment value (like the diary here), the requirement of specificity is usually enforced somewhat more strictly.

The police had probable cause to believe that a particular small convenience store was also used as a numbers betting operation. The police obtained a warrant entitling them to search the premises, and to seize any evidence of illegal betting. The officers went to the store to execute the warrant. First, however, they frisked all persons present, including the owner of the store and Doug, a customer who was standing with a dollar bill and a quart of milk at the counter. When they frisked Doug, they found drugs. May Doug have the drugs suppressed on the grounds that they are the fruits of an unlawful search? _________________

Yes, probably. The police may protect themselves while performing a search, in the sense that they may check any person in control of the premises who is likely to be dangerous. But where a person simply happens to be on the premises to be searched, and appears not to have any connection with the criminal activity that gave rise to the warrant, that person may not be searched or frisked. Since Doug, here, seemed to be an ordinary patron unconnected to any illegal betting that may have been going on on the premises, the police probably did not have the right to stop him and frisk him. See Ybarra v. Illinois (warrant to search a bar and its bartender did not allow the police to frisk each patron).

Is there a congressional statute covering the use of wiretaps and other forms of eavesdropping? If so, how, generally, does it work?

Yes. Before Katz v. U.S., 389 U.S. 347 (1967), the decisions relating to wiretaps were confusing and ambiguous. Katzsuggested that wiretaps might be constitutionally acceptable if authorized by judicially issued warrants. In response, Congress passed Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Title III was then amended by the Electronic Communications Privacy Act of 1986 to cover interception of communications involving post-1968 technologies, such as cellphones and non-voice communications (e.g., email). See 18 U.S.C. §2510 et seq. Title III authorizes the issuance of warrants for electronic surveillance under defined circumstances. The statute applies to several types of electronic surveillance: "wiretapping" (where the interception occurs on the phone line itself), "electronic eavesdropping" (e.g., the placement of a recorder in, say, a lamp in a room where speakers will have face-to-face conversations; this is commonly called a "bug"), and the seizure of recent email and other non-voice electronically transmitted messages. (We'll use the general term "wiretap" here to cover the various types of intercepts.) Title III covers how and when such warrants are to be applied for and issued: 1) Warrants may be issued to aid in investigation of virtually any federal crime, as well as certain state-law felonies in those states that have passed enabling legislation to tie in to the Title III procedures. For investigations of federal crimes, any federal judge or federal magistrate judge may issue a warrant. 2) Judges' discretion to issue a Title III warrant allowing wiretaps is more circumscribed than for other types of warrants. For instance, the application for the warrant must demonstrate not only probable cause to believe that the wiretap will furnish evidence of crime, but also show that ordinary non-wiretap methods "have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." 3) No warrant can be made valid for more than 30 days from when wiretapping starts, although additional 30-day extensions may then be applied for (but may be issued only if the judge makes the same findings about need as in the original order). 4) The order must where feasible specify which devices are to be covered (e.g., a named suspect's cellphone using phone number such-and-such). 5) Normally, within 90 days after the wiretapping has ended, the person who was the target of the wiretap must be notified that the surveillance took place.

May hearsay be part of the showing of probable cause for arrest?

Yes. Even if evidence would not be admissible at trial, that fact does not prevent the evidence from being considered as part of a showing of probable cause. Thus FRCrP 41(c), echoing the Court's holdings in Fourth Amendment cases, provides that probable cause may be based on hearsay evidence. The reliability of the hearsay, and thus its value in determining probable cause, depends on the source and the circumstances, but there is no blanket rule against counting hearsay as part of the weighing process by which probable cause is determined.

Can a search that's carried out by someone other than the police trigger the protections of the Fourth Amendment?

Yes. For instance, searches by individuals who perform quasi-police services, such as safety and health inspectors, are considered Fourth Amendment searches. Searches by public schoolteachers also might fall under the Fourth Amendment. As for searches by purely private citizens acting without police involvement (e.g., store detectives, security guards, and the like), most courts hold that these are not Fourth Amendment searches, although some courts hold to the contrary. Also, if a private citizen is acting under the direction of the police, his acts will be considered Fourth Amendment searches. NOTE: In the case of a private search that prompts or leads to a police search (e.g., the police search something such as a mailed package after it's been subjected to a private search), the government activity (but not the original private activity) is subject to Fourth Amendment analysis. Walter v. U.S., 447 U.S. 649 (1980).

Suppose an arrest warrant is silent about whether the police are authorized to enter the suspect's home to find and arrest him. Does such a warrant allow the police to enter the suspect's home to make the arrest, if they reasonably believe that he can be found there?

Yes. In Payton v. New York, 445 U.S. 573, 602-603 (1980), the Court observed that "[i]f there is sufficient evidence of a citizen's participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law. Thus, for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwellingin which the suspect lives when there is reason to believe the suspect is within."

Joe had been staying for several days in an apartment owned by his brother Bob, while Bob was away. While in the apartment, Joe periodically smoked marijuana. Occupants of neighboring apartments had called the police to complain about the suspicious smells. The police could have obtained a search warrant, but they lazily declined to do so. Instead, they rang the doorbell of the apartment, ascertained that Joe was not the owner of the apartment, forced their way in, and looked over the apartment. They spotted marijuana in an open pouch on a coffee table, and arrested Joe for possessing it. At Joe's trial for drug possession, can he have the marijuana suppressed on the grounds that it is the fruit of an unlawful search and/or seizure? _________________

Yes. The Supreme Court has held that an overnight guest normally has a legitimate expectation of privacy in the home where he is staying. Minnesota v. Olson. Therefore, the police were required to get a search warrant, just as if the apartment had been owned by Joe. When they did not do so, they violated the warrant requirement, and the marijuana will be deemed the fruits of an illegal search.

Hijinx on High Street. Neighbors complained about the high volume of traffic in and out of Alison's house late at night. They reported that from midnight until 3:00 a.m. cars would pull up and someone would exit the vehicle, enter the house, and return to the car minutes later. The car would then drive off, only to be replaced minutes later by another. Police Officer David surveilled the residence for one week. He noticed nothing unusual on six of the seven nights, but on the seventh, a Saturday night, he did notice a higher volume of traffic in and out of the house late at night, with visitors staying for varying lengths of time. He also contacted "Ralph," an informant with many contacts in the drug-trafficking trade. Ralph agreed to make some calls and, after doing so, informed David that his sources confirmed that Alison was dealing drugs out of the residence. Based on the foregoing information, David applied for a search warrant for Alison's home. His affidavit in support of the warrant application described what he had witnessed while surveilling the house and added that a police informant "spoke to individuals with personal knowledge of Alison's unlawful sale of drugs from her home." Relying on the affidavit, Judge Tammy issued a search warrant for Alison's residence at 18 High Street. Based on Aguilar-Spinelli, Tammy's issuance of the warrant was: a. Improper, because she was given no information about the informant. b. Improper, because she did not know how the informant's contacts acquired their information. c. Proper, because the informant's information was unnecessary to furnish probable cause. d. Proper, because the information provided in the affidavit was sufficient to grant the warrant.

a. Improper, because she was given no information about the informant.

Police Officer Baker was walking her beat one day when she discovered a small cocker spaniel which appeared to be lost. The dog was wearing a collar saying, "My name is Rex. If I'm found, please return me to my home at 123 Maple Street." Baker decided to do just that. She took the dog to 123 Maple, and rang the doorbell. The door was answered by a white-haired grandmotherly-looking woman, who identified herself as Mrs. Jones, owner of Rex. While the door was open, Baker happened to look past Jones into the center hall of the house, where she spotted what she instantly recognized (from reading Soldier of Fortunemagazine) to be an Uzi submachine gun. Since Uzi submachine guns are illegal in every state, Baker knew that somebody was committing a felony. She kept her cool, did not give any hint about what she had seen, got a search warrant, and seized the submachine gun. Jones was prosecuted for illegal possession of the gun, and defended on the grounds that Baker's act of spotting the gun, which began the whole episode, occurred without probable cause or a warrant, and that the gun must therefore be suppressed. a. If you were the prosecutor, what doctrine or rule should you cite in opposition to Jones' suppression motion? _________________ b. Should the judge grant Jones' suppression motion? _________________

a. The "plain view" doctrine. Under this doctrine, "objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence." Harris v. U.S. More precisely, where an officer standing where she has a right to be spots something in plain view, no "search" is deemed to have taken place. Therefore, even if the officer got to that spot without having probable cause, there has been no Fourth Amendment violation. (The view does not necessarily entitle the officer to go in and seize the item, it merely assures that the view will not be deemed an unreasonable and thus illegal search.) b. No. The plain view doctrine is applicable on these facts. Baker obviously did not violate any law by gathering up the dog and returning it home. Baker was certainly standing where she had a right to be when she stood at the door and looked in after it was opened. Therefore, her spotting of the weapon was not a Fourth Amendment search at all, so her lack of probable cause before the moment where she spotted it is irrelevant. The view itself then supplied probable cause to obtain the warrant, thus making the seizure legal as well.

a. Drug enforcement agents stationed themselves (with the permission of the landlord) in a third-floor apartment across the street from Bad Thad's first-floor apartment. With the aid of a telescope, the agents were able to observe through the open curtains of the kitchen window Thad weighing and packaging a white powder, and to read the label on a jar used by Thad that indicated that it contained a solution known to be a diluent for cocaine. Does the agents' conduct constitute a "search"? b. Assume that instead of viewing the inside of Thad's apartment, the agents trained their telescope on a small plot of land located behind the apartment. The land is enclosed by a fence and not open to view from the ground. Through the telescope, the agents observed marijuana plants. Does the agents' conduct constitute a "search"?

a. The place observed here is the interior of a residence, a setting embodying the highest degree of privacy security. If, however, Thad (who failed to close his curtains) conducted his activities in a manner that could be seen by the unaided viewing of persons lawfully placed outside (including from the building across the street), then he is entitled to no Fourth Amendment protection. But because the agents had to resort to enhancement by way of the telescope in order to observe intimate details of Thad's conduct within his home, the Amendment is arguably implicated. The Second Circuit held in a case on these facts that any enhanced viewing of the interior of a home impairs a legitimate expectation of privacy, and that citizens need not protect against such enhanced surveillance (e.g., by closing all curtains) in order to preserve that expectation. United States v. Taborda, 635 F.2d 131 (2d Cir. 1980). Query: Would the proscription against intrusions into the home embodied in Kyllo v. United States, 533 U.S. 27 (2001), which is limited to devices "not in general public use," exclude use of a telescope? Given that Court's emphasis on the sanctity of the home, the answer is probably negative. b. The setting for the observation has now changed from the interior of the home to curtilage, an area afforded somewhat less protection against intrusion. Although Riley and Ciraolo permitted naked-eye observation of curtilage areas (even if enclosed) from lawful aerial vantage points, the agents here used an enhancement device to obtain their view. Thad would thus argue the Fourth Amendment should be applicable. Where a surveillance camera was used to observe the open areas of an industrial complex, however, the Court concluded that no search had occurred. See Dow Chemical v. United States, 476 U.S. 227 (1986). Thad would attempt to distinguish Dow Chemical on the ground that the setting there was considered an open field, an area not entitled to any Fourth Amendment protection. Given that the matter observed by the agents in our example—the growing of contraband—is not the kind of intimate activity usually associated with the home, Riley suggests that Thad may meet with little success. Kitzmiller v. State, 548 A.2d 140 (Md. Ct. Spec. App. 1988), concluded that no search had occurred where an officer, with the aid of binoculars, observed marijuana plants within the curtilage of the defendant's home from a vantage point in a tree 40 feet above the ground. See also Rook v. State, 679 N.E.2d 997 (Ind. 1997). The increasing use of footage from body cameras worn by police should not change the analysis in these cases as long as the officer is in a lawful vantage point. See discussion of the Plain View Doctrine, §6.8.

Trolling for "techno-mules." Jeanette was a police officer for the City of Los Angeles assigned to the airport. Because Los Angeles was known as an international entry point for the unlawful importation of computer chips from Asia, Jeanette's primary responsibility was the apprehension of computer chip "mules." Having been assigned to the airport for two years, Jeanette had noticed that many of the mules she had apprehended wore green or blue sweat pants and tops and carried a large, canvas carry-on bag. One afternoon, while patrolling in the international arrivals area, Jeanette saw Suzy, wearing an aquamarine sweat suit and carrying a large canvas tote. She approached Suzy and asked for permission to search her bag. When Suzy refused, Jeanette detained her for two hours while Officer Liz obtained a warrant. Suzy claims that her "seizure" by Jeanette was unlawful. Which of the following, if true, is LEAST relevant in evaluating Suzy's claim? a. Jeanette was part of the Computer Chip Task Force, created to ferret out computer-chip smugglers. b. Jeanette had apprehended six computer-chip smugglers at the airport who were not wearing blue sweats and were not carrying large canvas bags. c. Twenty-five percent of female airport travelers wear blue sweat suits and carry large canvas bags. d. Jeanette had previously apprehended five computer-chip smugglers dressed similarly to Suzy who were carrying large canvas bags.

b. Jeanette had apprehended six computer-chip smugglers at the airport who were not wearing blue sweats and were not carrying large canvas bags.

Reefer mattress. As Mary and Todd sat watching television one evening, agents of a federal task force on drug interdiction stormed into their house without a warrant looking for drugs. After seizing a small quantity of crack cocaine, they left. Soon thereafter, state police officers broke a window on the ground floor in the back of the house and climbed into the couple's bedroom. They found marijuana under the mattress. After the trial judge found that both searches violated their Fourth Amendment rights, Mary and Todd moved to exclude all drug evidence in a state court criminal proceeding commenced one year prior to the U.S. Supreme Court's decision in Mapp v. Ohio. Which of the following is TRUE? a. All evidence must be excluded. b. The decision as to whether to exclude any or all of the evidence is within the trial judge's discretion, since this is a state court proceeding. c. The trial judge must exclude the crack, but not the marijuana. d. The trial judge must exclude the marijuana, but not the crack.

c. The trial judge must exclude the crack, but not the marijuana.

Junk in the trunk. A woman, who chose not to identify herself, called the police station to report that a balding, bearded Hispanic male with a dark complexion and wearing a dark blue suit was selling cocaine from a shopping bag kept in a car located in front of 15 Peaceful Lane. Responding to the call, Officer Larry drove to Peaceful Lane and noticed a man showing the contents of a grocery bag to another man. The man had a dark complexion, a receding hairline and a beard and was dressed in a dark green suit. Larry observed the man toss the bag into the trunk of the car, close the trunk, and walk away. After he did so, Larry stopped the man and took the keys to his car. Searching the trunk, Larry found 100 packets of heroin inside the grocery bag. Under Gates, the man's best argument challenging probable cause to search the trunk is: a. The tipster's identity was unknown. b. The bag may have contained additional items that were not illegal narcotics. c. The tipster did not indicate how she acquired the reported information. d. Intimate details of the suspect's future behavior were neither predicted nor observed by the informant. e. Larry did not sufficiently corroborate the tip before acting.

d. Intimate details of the suspect's future behavior were neither predicted nor observed by the informant.

Hey, wiseguy. Conor is an agent with the Setonia Bureau of Investigation, a state agency similar to the FBI. For the past two months, Conor has been surveilling Kyle, whom Conor suspects is linked to organized crime in Setonia. One evening, after Kyle and his wife exit their residence, Conor breaks into their house, looking for incriminating evidence. In a dresser drawer in the couple's bedroom, Conor finds a note written by Kyle to a known mob boss detailing their joint criminal activities. Conor seizes the note and leaves the residence. Conor's conduct violates the rules governing searches of residences adopted by the Setonia Bureau of Investigation as well as the constitution of the State of Setonia. Conor's supervisor gives the note to federal prosecutors who indict Kyle for a host of federal offenses. Can the prosecution use the note in their case-in-chief at Kyle's federal criminal trial? a. Yes, because Conor is not a federal officer. b. Yes, because the Setonia Bureau of Investigation is an agency. c. Yes, because Conor violated state law. d. No.

d. No.

Officer Abigail: Slice Squad. Agnes worked weekends as a pizza delivery person for extra cash. One Saturday night, she was delivering pizza to Tadd at his apartment on Main Street. Tadd let her in and told her to wait in the living room while he retrieved his wallet from upstairs. While Tadd was upstairs, Officer Abigail entered the apartment, explaining that she smelled burnt marijuana as she was walking in the outside common-area corridor. She required Agnes to empty her purse, inside of which was a vial of cocaine. Abigail seized it. It turned out that the smell was actually emanating from the apartment next door. Agnes is charged with unlawful possession of narcotics and challenges the search. Which of the following should she argue to gain standing, based on the cases discussed above? a. She was present in the apartment as an invitee when the search occurred. b. She is charged with possession of narcotics. c. Abigail found the cocaine in her purse. d. She is charged with possession of narcotics and Abigail found the cocaine in her purse. e. She was present in the apartment as an invitee when the search occurred, she is charged with possession of narcotics, and Abigail found the cocaine in her purse.

d. She is charged with possession of narcotics and Abigail found the cocaine in her purse.

Lines through the blinds. Sue is vice president for marketing for a large computer software company. Her best friend, Ramona, is the vice president for finance and occupies the office next door. Sue knows that Ramona leaves the office every day at 2:00 P.M. for one hour to exercise at the company fitness center. Sue asks Ramona if she can use her office during that time to "lie down," since Ramona has a sofa. Ramona agrees. Actually, Sue is not using the office merely to rest. She is also using it to snort cocaine and, on occasion, to sell drugs to other office employees. Al is curious when he sees Marty exit the office one day when Sue is inside. He peeks through the slats in the blinds and sees Sue snorting some "lines." He calls the police who burst into the office and seize Sue's stash of cocaine. Sue claims that the entry into the office and subsequent seizure of the cocaine violated her Fourth Amendment rights. Which of the following is LEAST relevant in evaluating her claim? a. She used the office every day. b. Ramona gave her permission to use the office. c. She closed the blinds after entering the office. d. She sometimes sold drugs in the office. e. She lied to Ramona about her activities in the office.

d. She sometimes sold drugs in the office.

30 grams has April. Officer June was convinced that April was running a drug distribution operation at State University. Through surveillance, she found out that April had four couriers who would transport the drugs to her customers for her. May was one of the couriers. One afternoon, June observed April handing suspicious-looking baggies to May, which May then placed in her (May's) backpack. After April left, June approached May, grabbed her backpack and began searching it. Though May protested, June did not desist, commenting "Don't worry, May, you're not the one I'm after." In an interior zippered compartment, June found four baggies containing marijuana, each with a label containing the name of the intended recipient and the words "from April." April is charged with drug trafficking and moves to suppress the evidence found in May's backpack. Does April's claim have merit? a. Yes, because May has a privacy right in her backpack. b. Yes, because June intentionally violated the Fourth Amendment. c. Yes, because April was the target of the search. d. No, because May was in possession of the baggies at the time of the search. e. No, because April and May did not share the backpack.

e. No, because April and May did not share the backpack.

College savings plan. The Smiths own the Everbloom Flower shop, located in the middle of the block on Main Street, between Mary's Excellent Edibles and Terry's Sandwich Shoppe. While they generally buy their "cut" flowers from private vendors, they grow all the plants they sell in a greenhouse behind the store. Alarmed at the rising cost of college, Rita and Travis realize that they need to start saving quickly to pay tuition for their son, who is presently a high-school junior. They decide to build a second, smaller greenhouse near the main one and dedicate it entirely to the cultivation of marijuana. To access the second greenhouse, you need to exit through the back door of the first, walk 20 yards, and open its door, which they keep closed during business hours. A six-foot, opaque fence encloses the entire business premises, including both greenhouses. Police Officer Brianna learns of the Smiths' illicit activities and decides to investigate. She enters the store and asks to see flowering plants. Mrs. Smith takes her into the main greenhouse where the plants are kept. When Mrs. Smith leaves to attend to another customer, Brianna runs out the back door to the small greenhouse. She finds the door locked but peers through the window and sees the marijuana plants. She then places the Smiths under arrest. Will the Smiths succeed in arguing that their Fourth Amendment rights have been violated? a. Yes, because Brianna entered the larger greenhouse to access the smaller one. b. Yes, because customers would have no reason to enter the area behind the store. c. Yes, because the Smiths erected six-foot-high, opaque fences. d. No, because the store is surrounded by other commercial buildings. e. No, because Brianna did not enter the second greenhouse.

e. No, because Brianna did not enter the second greenhouse.

When does amplification of the normal senses turn regular police activity into a Fourth Amendment search?

he brief answer is that use of devices that amplify ordinary senses constitute a Fourth Amendment search if (1) the device is not commonly used by civilians in society; and (2)the device is used in such a way that it permits the police to learn matters that are occurring in private, as to which the persons concerned have a justifiable expectation of privacy. To understand how these rules work, keep in mind that generally, under the plain view doctrine, police discovery of evidence through exercise of their ordinary senses—when the police are in a place where they're entitled to be—is not protected by the Fourth Amendment. So the question is whether the plain view doctrine applies when the police are standing in a public place, but use a high-tech "sense-enhancing" device to perceive private information that they could not perceive without such a device. So far, the main Supreme Court cases to address this "amplification of normal senses" issue have concerned devices to amplify sight. If the police are where they have a right to be (e.g., on public property, or in a private place with the occupant's consent, or in navigable airspace), they don't conduct a search if they use their ordinary eyesight to perceive something that occurs in, say a dwelling, even if their eyesight is enhanced by the use of common amplification devices like flashlightsand binoculars. (Example: Police stand on the sidewalk outside D's house, and use binoculars to see through his front window into his living room, where they spot marijuana growing. Even if they couldn't have seen marijuana by unaided vision, the use of the binoculars does not constitute a search, since binoculars are common devices in everyday use.) But the police do commit a search if they use sophisticated high-tech equipment that is not in general public use, to observe activity in private places that they could not have observed through low-tech means from a place where they had a right to be. (Example: Police standing outside a house use a high-tech thermal imager, not in general public use, that can "see" through walls to show what areas inside the house are warm or cold. Held, the images were not in plain view, so by using the device the police conducted a search, for which a warrant and probable cause were required. Kyllo v. U.S., 533 U.S. 27 (2001).) OTHER HIGH-TECH TOOLS: A comment by the majority in Kyllo suggests that use of other high-tech tools that are not generally publicly available will similarly constitute searches, if they permit the police to learn private information that they could not learn through ordinary human senses or every-day assistive devices. The Kyllo Court in the course of rejecting the government's claim in Kyllo that the thermal imager was merely capturing heat that was emanating from the exterior wall of the house into public space (and was thus merely engaging in a form of plain view) said, "But just as a thermal imager captures only heat emanating from a house, so also a powerful directional microphone picks up only soundemanating from a house—and a satellitecapable of scanning from many miles away would pick up only visible light emanating from a house." The Court went on to say that accepting the view that none of these "through the wall" technologies constitute searches "would leave the homeowner at the mercy of advancing technology—including imaging technology that could discern all human activity in the home." So we can assume that the use of directional microphones and satellites to pick up vibrations coming from within a home would constitute searches just as the use of the thermal imager did. PUBLIC VS. PRIVATE PLACES: Keep in mind that the principle that use of high-tech devices to expand the senses constitutes a search applies only when the device lets the police learn information that is justifiably regarded as private, such as things happening within a home. A search will generally not be found to have occurred where the place being surveilled—even with a high-tech enhancement device—is a public place, and the same surveillance could have been done with low-tech human observation. (Example: Police suspect a container of chloroform will be used for crime, so with the consent of the seller of the container they put an electronic beeper in it before D's associate picks it up. The police then use the beeper to track the associate's delivery of the container by car to D's house. Held, the scientific enhancement (beeper) used here does not raise any constitutional issue—because D had no justifiable expectation of privacy in the movements of the container through public spaces, no search occurred merely because the tracking of the container's movements in public was facilitated by use of the enhancement device, any more than constant visual surveillance of the car delivering the beeper would have constituted a search. U.S. v. Knotts, 460 U.S. 276 (1983).)