Crim Pro

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exam notes

- FOPT, three big exceptions - Big exceptions: attenuation is the most general one. - Passage of time factor for FOPT: six months is the minimum that you need in order to have an attenuation argument. - Evaluate the attenuation based on the intensity of the og const violation. Ex k and a is so small; it's a legit const violation, but not a super bad one. - Another ex: diff tween a LE that thinks they have reasonable suspicion, but they didn't really. Contrast between that, an unintentional mistake that was really a close call, and when LE deliberately pulls someone for no reason, commits an absolutely intention 4th amend violation, might not say an intervening act of free will, for ex, is enough to fix that taint. - Several thoughts at end of exam: who has standing to raise a particular violation. Which violations have exclusionary rules. Which violations have downstream FOPT effects. This is fairly complex stuff. How to succeed on that: section 1, just list const violations. Don't worry about any of these other doctrines. Just go through, list the violations. Then have a section 2, standing thought. Much shorter sections - look through each of your possible violations, list who has standing to challenge it. Section 3, going to say for each of those people, what exclusion will they get. Last piece: FOPT. Think through for each violation, what is the FOPT effect. Just make sure you cover all three sections. - Could and probably should have a fourth section summarizing everything. - First section: go through facts, spot all of the const violations. Think of this section: not analyze every single LE action, but analyze every piece of evidence they acquire, which doctrines will LE need to claim here. Might need three or four doctrines to get to one piece of evidence. Catalogue all const violations. Spot every doctrine LE will want to raise for evidence. - Section 2: look at list of suspects/defendants. Typically two, three, four people max. then you say which of these people have standing to challenge each violation. Bring up each person, say which violations each person gets to raise. - Section 3: Exclusionary rules: go through who can raise them. Each rule, for each character, each violation - Section 4: FOTPC: for each character, what's the FOTPC effect. If A had a miranda violation, we know exclusionary rule is case in chief, go through FOTPC. AKA: for where there is an exclusionary rule, explain the FOTPC effect. Then make LE arguments, say that for this violation, there is an exception in play. - Section 5: say: for this character, here's the evidence that will ultimately come into play at trial. Walk through each character at trial. That could be a fairly complicated pattern. One character can't challenge the first piece of conduct, but at some point down the road their house was searched. That one might have a FOTPC effect. Aka maybe can only challenge one of twelve const violations, that one violation is at beginning of story, everything happens bc of it, everything else excluded bc of FOTPC. Alt: can challenge five of them, LE get evidence at step 6, and they can't block that one that might convict them. - For FOTPC: have to have standing in the first place. Relationship between FOTPC and standing. If story starts in step 1, you can't challenge step 1, things look bad. But you can challenge step 5: what's excluded? Steps 1-4 you couldn't challenge or exclude. If you have standing to challenge step 5, have standing to challenge all evidence acquired after step 5. - On the other hand: might challenge steps 5, 6, 7, 8, but if they can't exclude the first few steps, might still be enough evidence to convict. - Might be able to challenge step 1, can't challenge any other step, but can argue that that step led to all those other pieces of evidence, so can say following steps was FOTPC from step 1. - Aka: some characters can challenge a specific search and get evidence excluded, others can't but they can challenge an earlier search and claim that the later search was FOTPC. - Note: some LE arguments will be slam dunk wins or losses. Conclusions are more important here. NOTE when those slam dunk wins, losses occur. - For assessment: if listing three separate arguments LE could make for, say, search of a vehicle: if they can claim vehicle doctrine, can 100% get to evidence, but might not have a strong argument for it. Diff chances of success for each argument. Give Hall some assessment of each three arguments, say which is the strongest, which is the weakest, and why. Do NOT list the strongest argument last. Start with your strongest. - Multiple choice: try to just get the right answer, you don't want to have to explain yourself. If you can get it down to two, give him an explanation why both are good; explain what the second one was, why you weren't picking it. - He will take questions during exam period. - If you have Miranda violation, first thought is what's the exclusionary rule - is basically same as 4th amend. Where do things get weird: if, in statement, D says he used a gun and threw it down the sewer. That's an incriminating statement, but might lead LE to go search for the gun. Statement is excluded, but gun is NOT if, say, has D's fingerprints on it. Found it bc of incriminating statement, but Miranda violations have NOT FOTPC rule - if violation leads to info, that info is not suppressed - Another ex: miranda violation, incrimiantg statement is suppressed, but in statement gives name of accomplice, go get accomplice, properly Mirandize that person, then the accomplice says 'I did this with the D you already have.' So the ONLy thing that gets excluded is the unconst obtained evidence. - If a problem involves a FBI agent: apply Gates test. If he tells you prosecution is in US district court or involves US attorney: you know to use the fed test. If he doesn't, need to do both Aguilar-Spinelli and Gates. - Which test is easier for LE: Gates, bc just a totality of circumstances test. Just have to win overall. - A-S has two prongs, and THEN we do corroboration after the prongs. Might not satisfy the prongs, but LE can save it with corroboration. Prong one: basis of knowledge - how much does tipster seem to know; looking for level of details that show the person is an insider. Prong 2 - veracity; have a problem here with anonymous tips; look at track record, usually. What if have anonymous tip with a lot of detailed info: can save it with corroboration. Looking for corroboration of predictive details, not observable details. - What if tip says suspect is carrying a gun, going to rob store: if LE see suspect leaving car with the gun in their pants, in some states, that's RS, don't even need the tip anymore - if have really strict concealed weapons laws. SO: might give us a fact pattern where we don't even need the tip any more, don't care that the informant doesn't meet the test.

A. Quiz 17

1. 1: why is it important that this is an open area - there's nothing to hide behind. We're not worried the suspect is going to hide. Unger is on the wanted list = popo has PC. Stolen property = nothing about the siutaiton right now seems dangers, aka it's a nonviolent crime. Wearing tshirt and swimsuit - can't hide weapons, so no evidence he is armed. Only thing that's going on here: he's yelling 'I'll kill you all;' that's pretty disturbing. Is there any possible argument for the use of deadly force: yes. Note that one of the factors for deadly force is dangerousness; here, we're getting it from the suspect's statements. D isn't a good answer because nobody is around. Answer is B. 2. 2: answer is D. only thing that really matters here is the argument that the officer did, didn't act objectively reasonably. 3. 3: there is no criminal law enforcement here. Not obviously in the category of crime investigation. What could get us to crime investigation: if there was something that had popo suspecting arson - would need some facts to get there. What else could get us to criminal law investigation: if instead of noises, officer heard a fight. Also: if officer heard something that sounded like a gunshot. Note that none of these things automatically mean crime, just indicate that there is a possibility of crime. But here, there's nothing really putting criminal law enforcement on the table. Not really doing crime investigation here. Seems like officer really is just trying to make sure that there isn't a n uncontrolled fire in the backyard. What are the possible doctrines here: public safety (this is imperfect: we aren't hearing a noise suggesting that someone is injured. We're not there yet with what we do have. Community caretaking is a much better doctrine - popo is just trying to make sure that there's not a fire in the backyard. Public safety would require knowledge that somebody is inside). 100% does have community caretaking argument. 4. 4: two factors: hot pursuit and dangerous crime. Potential issue: popo loses the truck. BUT by the end of the story, he's found it again. So what has happened: the pursuit cooled off. There is some ambiguity about just how hot this pursuit is. SO: we can have, even during hot pursuit, moments where popo are closer, farther away from vehicle. This is only for a short time. But does this defeat us? What we know about the EC test: popo can argue that the pursuit is still in motion. Is the EC test a rigid test that popo have to est just one, or lose? No, can combine factors. Totality of the circumstances, which means popo are allowed to argue the four factors plus ANYTHING ELSE. Popo are allowed to put anything on the scale. Even if this is just 'warm' pursuit, can still consider that. Answer is C. 5: what is officer allowed to do while on the premises: look for suspect, evidence of where suspect might be. Bunch of things officer could be oding, but they all need to relate to the exigency, which is mainly searching for the suspect. Is officer allowed to search for five minutes: this is hide and seek, at this point. Officer is allowed to operate on assumption that suspect is hiding on the premises. Our default thought: 10, 15 minutes is probably reasonable, if it's a normal sized house. If it's a one-room apartment, much shorter amount of time. How did he find gun: immediately apparent as evidence - THE Plain view doctrine. But exigency is what allowed officer into the house; it has ended, so officer needs to leave. So answer is A.

A. Quiz 12

1. 1: you know that the standard is pretty high for Franks hearing, but that's really the only possible course to getting a defense-favorable result here. 2. 2: any thoughts why, even if this was a police officer, she wouldn't have a good argument: this wasn't criminal law enforcement. BUT this might not really be an administrative search. If was admin: the question IS: was the gov employee doing their job. If they were, probably not going to lead to a successful 4th amendment challenge. Bus drivers are not the sort of normal gov employees that get to come into your house. Not a case where we need an administrative warrant; just asking if this was reasonable. Hall thinks it is, common sense says it's reasonable. Probably not a violation. Just looking for what the best rationale why not. B is a good answer - just looks like the driver is doing his job. We would expect C to come along with school searches. D is wrong because she DOES have a reasonable expectation of privacy. Answer is B, because it's really the only one that works. 3. -3: even in the school search context, admins need some initial justification, and a hunch isn't good enough. Not sure xactly what level of suspicion they need, but they definitely need more than a hunch, need some objective, specific, articulable level of suspicion. B isn't good because THIS is a probable cause standard. There IS not PC requirement for school searches. They JUST have to be reasonable. "believe" is a PC standard. So C is the correct standard. Just need SOME articulable suspicion, and we don't know how much. Reasonable under the circumstances. 4. 4: normal rule about premises box: rigorous particularity with regard to the place to be searched. Bc thought we're having is that humans and real estate are unique. In regards with items to be seized: general description unless it's stolen property/unique stolen property. B is backwards. C is a legit choice, but "cannot" is problematic; street address is a win, but it's an overstatement to say that he absolutely can't get a warrant without it. A substitute for a street address would be enough. Answer is A. of course officer can get a warrant, even if there is no street address. Street address is just one of many possible ways to satisfy the requirement. It's not the sum total of what officers need. 5. 5: our normal thought: can officer emply dog around car - yeah, because it's not the interior. Also: the truck does not have 4th amendment rights. So in order to get a fourth amendment right, we need a person. We have a problem if the suspect is in the car. That's the only time we really have a fourth amendment right, OR if the car is at suspect's house, bc has privacy rights inside the house, inside the truck. If it's just the truck out in public, there's just nothing, no 4th amendment issue here. So we need either a detention of the suspect, or search where popo shouldn't be going inside the car. A has a potential problem if they detain him for a longer period of time. The core issue here is how long was the detention overall. OVERALL the detention has to be reasonable, and the problem is we have no evidence on how long popo hold the suspect. So this is not a great choice. Issue with C is that the garage might be open. B is correct because he's the only one that the popo should NOT avoid. Hall made a mistake on this. Should've said which one of these should the officer PICK. Officer should avoid A, C, and D.

Quiz 12

A. Riley v. California

1. Context: Search Incident to Arrest (SITA) a. Upon arrest, law enforcement may search: 1) Arrestee 2) Including possessions 3) Immediate area 4) Vehicle - with limits 2. SITA as applied to phone a. SITA does not extend to phone data b. Why not call log - more than numbers 3. Rationale a. Perhaps as important as Rule b. Phones contain more info than your house 4. Warrant requirement a. Search of mobile phone data requires warrant 1) Difficult? b. OR exigent circumstances c. Note: reasonable steps to "secure scene" are allowed 5. Explanation a. Riley is about a search incident to an arrest - is about the popo searching a smartphone as part of an arrest. Technically is just a search incident to an arrest, but Riley est a set of thoughts the SC is having about data that is critical to the evolution of caselaw. b. Search incident to arrest: upon arrest, LE may search body of arrestee, possessions of the ararestee, the immediate area around the arrestee. 1) Pursuant to this doctrine, CA police arrested someone, got their phone, phone is a possession, gonna search the phone. Aka, they weren't really "up to anything." Ct says: no, even though a phone is a possession, popo don't get to search it - they're diff from your wallet, backpack. 2) Why can't search phone in a search incident to an arrest: the thought is that phones are computers. Phone has a lot more stuff, lot more private stuff. You have texts, which are often really private, and pictures. Also calendar is often kept on our phone. All social media is on our phone. Thought is that your phone has a huge amount of data, super personal data. Used to be that you'd have photo albums, a calendar in your house. That's not the case anymore. All of that stuff is all on your phone now. Ct says if we let popo search a phone in a search incident to an arrest, we might as well not give them any limits at all. c. Rule: SITA does not extend to phone data. Popo are allowed to pull credit cards from your phone data, can take phone case off to look for stuff, but cannot open up phone and look at your apps. This incudes call log info. 1) You can get call log info from phone provider, but can't get it direct from phone, bc gives you more than numbers - gives time, name of person, length of call. d. What if a text comes through, you have it set so you just see person's name, or the text comes up on the screen, and popo look down and see it, that's fair game - that's called "plain view." Same if somebody calls, their name flashes up. e. Rationale behind Riley: phones contain more data than your house. The ct SAYS this. Data, what data says about people, poses a threat to privacy rights. f. Riley says you can't search a phone ITA, you need to get a warrant. How hard is that? 1) If in Chicago, it's not hard - call up station, station calls prosecutor, there's s duty prosecutor on duty around the clock, a duty judge, you can get a warrant in a big city in half and hour. So in Chicago, not hard at all. In Oxford, might take 12 hours; in small towns, might take a day or two; just about how streamlined your j is. g. Popo could argue we think this person was about to murder, meet up with co-conspirators; if they have those facts, don't even need a warrant, bc have exigent circumstances. 1) SO: Riley means that popo just can't use SIA to search a phone - may have exigent circumstances, or may have a warrant. They can in fact search. h. Reasonable steps to secure the scene: lower cts say that if popo believe suspect has called in reinforcements, the popo can check the phone to see if friends are on the way. that's a subset of exigent circumstances, but allows tiny search. i. Normally, we aren't going to limit the search of a phone, bc the desired data could be anywhere on the phone

A. Standard of Suspicion for Vehicle Search Incident to Arrest 1. No per se search of vehicle a. Contrast with per se search of arrestee/area 2. Standards a. Only if reasonable belief that 1) Suspect(s) in close proximity to vehicle i. Access/reaching distance OR ii. Evidence of offense in vehicle

1. Explanation a. SITA applied to a vehicle b. Some limitations to this. Why: SC created this doctrine but began to realize it was out of control; vehicle cases are an opportunity for the ct to pull back. Another way of looking at this: ct was worried about SITA with vehicles bc court was afraid popo was manipulated SITA in respect to a vehicle. How could popo manipulate SITA regarding vehicles: if popo want to arrest somebody, what can they do in terms of thinking how they'll do the arrest that allows them to manipulate this rule, get more of a search than otherwise: instead of arresting someone on the sidewalk, they're going to wait til somebody gets in their car; the thought then is that we get a free search of their car. SITA allowed the popo to time the arrest to get a search of the car that otherwise they didn't really have any right to. Why isn't that equally true about houses? Why is ct restricting cars, but not houses? If you're in your house, in general, popo can't get in. So in general, can only manipulate this rule to search house if you have a warrant. Harder to manipulate for houses. In contrast, they CAN just arrest you in your car, don't need a warrant to stop your car and arrest you. They're just allowed to do that. c. So one possible reason for limits to SITA for vehicles: sc was really worried about the manipulation of timing of arrest; alt, that they just wanted to limit SITA generally d. If popo arrest somebody at their car, do NOT get a per se search of the car. Officers need one or both of two things to search the car: 1) either reasonable belief suspect could regain access to the car; 2) reasonable belief that evidence is in the car. e. The second one makes sense. There are lots of crimes in which popo are going to be thinking there's significant physical evidence of this crime, crime could've been committed using the car as transportation, or there's evidence of the crime in the car. But there are other crimes where there really isn't additional evidence: ex, reckless driving, if there's a cold case that was committed weeks or years ago. Where this would be reasonable: if somebody is a drug dealer using their car to move around distribution sites; if somebody committed robbery. f. What about the other, first reason popo get to do vehicle search (suspect is in close proximity to the vehicle) - this is a bad rule. Creates a perverse incentive on the part of officers. We WANT officers to put them in their patrol car bc that's safe, safe for them, safe for the public. What do we not want them doing: you're arrested, put your hands on the car and stay there - oops you're close to the car, stay there while I search. Creates incentive to not secure the arrestee. g. We don't want to have artificial CP rules that push popo in weird direction. h. So there are two ways that popo get to do SITA to a car.

A. Due process challenge to witness id 1. Even if 6th amendment RTC doesn't apply a. Due process challenge to identification b. Corporeal or photographic 2. Due process challenge to witness ID: LE does id procedure, can be photos or live. Have to do it in a legit way. a. Aka: we're having a straight up due process argument now. Doesn't matter if 6th amend applies. Doesn't matter if it's live or photographic. You have a DP right to a legit id procedure. It's really hard to win these claims.

A. Dp challenge to id procedure 1. Generally 0 for exclusion of identification 2. Two part test a. Procedure = unnecessary suggestiveness b. Unreliable identification 3. Multi-factor test for reliability: a. Witness's opportunity to view suspect at offense 1) If witness viewed suspect from 40 feet away, not a good opportunity; but if it was a robbery, took fifteen minutes or more, in a closed room, got a good look probably b. Witness's degree of attention at offense 1) How stressful was the moment, was witness only worried about survival, or was this a normal course of affairs perpetrator. c. Accuracy of pre-identification description of suspect 1) What classic thing do witnesses do before id procedure that tells us if they were able to id the suspect: a sketch or a detailed description. 2) If can give super detailed description, like eye color, tattoos, we're really convinced that the witness has an accurate recollection of the perpetrator. d. Level of witness certainty at identification 1) Hall thinks this is a bs factor. Witness certainty shouldn't come into play - could have a totally certain witness that's wrong, another person that's not 100% sure and be totally correct. 2) Better to rely on factor 3, instead of looking at certainty; just see how detailed they can be. e. Time between offense and identification 1) We all know that memory is malleable, often memory changes over time. 2) We're worried about an offense happening, id happening four years later. 3) But we also know that memory is often short circuited in traumatic events. Right after it, unlikely to at once have accurate memory - could take several days to figure out what really happened. f. Totality of circumstances 1) Basically: Can consider anything and everything if it helps your argument. 4. Discussion/explanation a. There's a two part test if you're arguing to exclude the id. 1) First: have to argue the procedure was unnecessarily suggestive 2) Second, argue that it led to an unreliable id. b. Unnecessarily suggestive = all id procedures are suggestive by nature - you're telling the witness here are eight people, we think one of them is guilt, the perpetrator is one of the eight. The person we've caught is right here. That's suggestive. 1) The test, then, is if those are unnecessarily suggestive. L i. Exs: § Live id: five men on stage, one guy, four women. That's unnecessarily suggestive. § If witness says suspect was six feet tall, need people that are approximately six ft. If a person is five foot, that person might as well not be part of id procedure. v If LE has caught a reliable suspect 5 foot, but suspect thought they were six foot, then LE probably need to get more five foot people. § Alt, if suspect supposed to have facial hair, need most everybody to be bearded. § In photo arrests: if witness says it's a female, all the photos are of famous women except one. v Witness will know that those famous people aren't the perpetrator. Need a significant percentage to be reasonable exemplars close enough to witness's description that it's a legit id procedure. v Also, if all the photos are people that look really different from the suspect, if all the photos are different gender, size, weight. c. SC says even if we have an unnecessarily suggestive procedure, we might still have a reliable id - witness might really know what suspect looks like. 1) Thought is that we aren't going to throw out that id. i. How often does that happen? Idk, Hall says it does happen sometimes. ii. This feels like LE has a way out d. So basically, there are two ways LE can win: 1) even if have a weak witness, can win by saying the procedures are correct, put together a reliable photo array. 2) As long as have fair photo array, even if witness stinks, LE wins. 3) Aka, this is a test that LE should be able to win 100% of the time: bc they can either put together a good photo array, OR even if they blow it, bc they've got a reliable witness.

I. Quiz 1

(1 is Hodari D. is the suspect better discarding the evidence before or after seizure - after ). B or D, (2 is Drayton; SCOTUS has told us in this situation that he should feel free to leave, terminate the encounter) D, (3 - there's an argument that if the officer arrives hot, the officer has made an assertion of authority) A, (this is the time lag problem; evidence that is acquired during the time lag is FAIR GAME for the police, because the seizure hadn't occurred) D, A

a. Right of first offer 1) Timeline: FBIF formed 1976. Linda and Moore contribute farm and receive 2508 shares. Restrictions "adopted" 1977. Divorce, moore gets 156k judgment secured by lien 1982. FBIF in and out of bankruptcy, 1989-91. Moore write of execution on lien 1999. Shieriff's sale of Linda's 2914 shares to Moore for 290k 2/2000. i. Question here is: if you want to enforce a family own policy, can you do that after the fact, sandbag any purchaser into a proceeding. 2) (1) No stock of said corporation shall be transferred, assigned and/or exchanged or divided, unless or until approved by the Directors thereof; 2) That if any stock be offered for sale, assigned and/or transferred, the corporation should have the first opportunity of purchasing the same at no more than the book value thereof; 3) Should said corporation be not interested, and could not economically offer to purchase said stock, any stockholder of record should be given the next opportunity to purchase said stock, at a price not to exceed the book value thereof; 4) That if the corporation was not interested in the stock, and any stockholders were not interested therein, then the same could be sold to any blood member of the family. Should they be desirous of purchasing the same, then at not more than the book value thereof i. Drafting: start with a prohibition, like "no shareholder may sell their shares." That should be your header, everything else a condition/exception under it. AlSO: don't create a right for corp to relieve someone of an obligation. Also, in this ex, there are four actors: directors, corp, any stockholder, blood member. Each will need a provision about what they can, can't do. How do you sequence that. 3) Prohibition: no transfers, etc ("No shareholder may...") i. This is how bullard would organize a draft of one of these provisions: § Prohibition: no transfers, etc (no shareholder may...) § Exception: may sell if... (conditions) § Offer at no more than book value § Purchaser is corp, other shareholder, or blood relative § Priority: corp, other shareholders, blood relatives § Board approval 4) Exception: may sell if (conditions): 1) offer no more than book value; 2) purchaser is corp, other shareholder, or blood relative; 3) priority: corp, other shareholders, blood relatives; 4) board approval

1) Ex: No shareholder may sell, pledge or otherwise transfer any interest in their shares, in whole or in part, except that a shareholder may sell their shares if: (1) A majority of the independent and disinterested Directors have approved the sale; (2) The purchaser or purchasers are the corporation, another shareholder or a blood relative; (3) The offering price does not exceed book value; (4) The shareholder has delivered a written offer to all prospective purchasers ("Notice") to sell the shares; and (4) The corporation has 30 days after delivery of the Notice ("Offer Period") to purchase the shares, the other shareholders have 30 days from the later of the delivery of the Notice and the day after the Offer Period ends to purchase any shares not purchased by the corporation ("Second Offer Period"), and blood relatives have 30 days from the later of the delivery of the Notice and the day after the Second Offer Period ends to purchase any shares not purchased by the corporation or other shareholders. i. This is how Bullard would draft one of these provisions. Start with prohibition, then give conditions/exceptions. 2) Another ex: (4) The corporation has 30 days after delivery of the Notice ("Offer Period" ) to purchase the shares, the other shareholders have 30 days from the later of the delivery of the Notice and the day after the Offer Period ends to purchase any shares not purchased by the corporation ("Second Offer Period"), and blood relatives have 30 days from the later of the delivery of the Notice and the day after the Second Offer Period ends to purchase any shares not purchased by the corporation or other shareholders i. If you want clock ticking, then gotta have notice. Corp has to be outta the picture before we can start the shareholder period - you want to give that a name. 3) Timeline: notice to corp (or all shareholders and blood relatives). Thirty days. Other shareholders receive notice if company has not bought all shares. Thirty days. Blood relative receive notice if shares still left to purchase. Thirty days. Last day of offer period i. This is how you'd apply the thirty-day periods described above 4) MBCA 6.27 & Ind. 23-1-26-8 1. How: 1) By articles, bylaws, shareholder agreement, shareholder-corporation agreement and (2) notice on certificate 2. Purpose: S Corp. Status, Preserve Sec. Exemptions, Other Reasonable 3. What and Who: • Shareholder Required to Offer to Corp./Other • Corp./Other Required to Purchase • Corp./Other Approval if Reasonable • Prohibit Sales to Certain Transferees if Reasonable 5) FBIF v. Moore: was sheriff's sale permitted? What could/should FBIF have done? What is Moore's position now? i. FBIF should've gotten in there, exercised their right, say that they have a right to buy the shares. ii. Focus is really on the drafting. Drafting was clearer, then ct might've come out differently. b. Contrast right of first offer to right of first refusal 1) First refusal: C offered me 30k. want to buy me out first. Problem here is that C might not ever make this offer 2) First offer: you have 30 days to buy my shares for 30k, after which I may sell them to anyone for an equal or higher price. C, in this case, may well still make an offer.

I. Excessive force /Police brutality A. Use of force generally 1. Reasonableness B. Deadly force 1. Allowed only if: a. Suspect poses an immediate threat to law enforcement or others b. Factors: 1) Armed dangerousness 2) Crime involves infliction (or threat of) serious bodily harm c. If possible: warning C. Discussion/explanation 1. Excessive force: We could do better here. Hall wants an outside means of review for popo 2. Heiman case: a. There were two officers. They each reacted very differently. In a civil case, like this, want to make the D look as bad as horrible. If officer is shooting to prevent an escape, officer would shoot the suspect in the leg (though in reality this might not be as easy as Hollywood makes it look). b. Why then would he shoot suspect in the back of the head: suspect keeps running, even after telling him to stop - popo felt angry bc he was disobeying him. So officer responded to his anger by shooting him in the back of the head. c. What is the core of this argument: the mindset of the officer. 3. Hall thinks that excessive force is a two part test a. Part 1: may the officer use force at all. That's just a general reasonableness evaluation. 1) Why isn't it more detailed: bc use of force can include a large variety of physical conduct. Also, popo is arresting, executing a detention - he HAS to get hold of an unwilling suspect, and that itself prob counts as use of force. Aka, can include a lot of non-injurious touching. 2) Contrast this to normal life - normally, don't have any business just touching people!!! b. Second part of the test: when do popo use deadly force. Allowed only if suspect poses an immediate threat to LE or others. 1) Thinks it means immediate threat of serious bodily harm. One thing that's diff for LE than normal people: LE is supposed to give a warning before use of deadly force.

1) This might not seem fair - why should the test for popo be higher? i. Our thinking is that popo are in authority, they have a lot more tools available to them than an ordinary person. So an ordinary person might have to resort to deadly force sooner than a normal person. ii. Why arguably should we impose additional steps on popo compared ot normal people: they have more training on how to handle situations before they reach a deadly level. iii. Normal people don't know what we're doing, no expectation that we'll know how to respond. Popo should not therefore have to go to deadly force as quickly as a normal person. iv. Another thought: the job of the popo is to protect and serve. You as a normal person have no protect and serve duty, legally. Popo are SUPPOSED to de-escalate situations, save the life of suspects.

A. Challenging a Warrant 1. Facial challenges a. Invalid warrant 1) Aka, lack of particularity in Location, Search, Seizure b. PC not present in affidavit c. BUT: if there is good faith execution, there is no exclusion of evidence d. Explanation 1) How do you challenge a warrant? Can challenge based on the face of the warrant - aka, you challenge in that it does not accurately id the premises searched, or bc description of evidence doesn't meet the reqs. 2) Can also challenge if affidavits supporting warrant actually support PC. If you win, warrant is invalid. If the popo use a warrant thinking that the warrant is valid, and it's later invalidated, popo are going to win bc they executed the warrant in good faith. So unless probs are so obvious that no god faith officer could execute it, popo will win. So does facial challenge help you: helps you ONLY if you can win the facial challenge and THEN show that the popo did not have good faith. That's hard to do.

1. "Sub-facial" challenges - deeper probing into the warrant a. Standard to obtain a hearing for these challenges is called a Franks Hearing b. Preliminary proffer of: material and deliberate falsity 1) Deliberate = knowingly or recklessly false statements in affidavit 2) Material = necessary for finding of PC c. At hearing burden of proof is on suspect/defendant d. Good faith of executing officer is irrelevant e. Explanation 1) Another warrant challenge you can make: sub-facial challenge. Gotta get a hearing for this. Franks hearing. Gotta go to court with evidence that the popo lied in getting the warrant to get Franks hearing. That's really hard to do. 2) If popo have 11 pieces of evidence, only lied about one, still have enough evidence to get warrant, don't get Franks hearing. Falsity has to be MATERIAL. If the warrant has deliberate and material falsity in it, then we will get exclusion, even if officer executing it did so in good faith.

Quiz 4

1. 1 - Whren fact pattern - synonymous with the fact that we don't care about police's pretextual reasons - why does 'A' focus on the fourth amendment? Because Julie can make an equal protection argument - D contains good words but it is a defense argument - right answer is A. 2. 2 - anonymous = superficially not credible - we wants details OR credibility - here, because there are details, the officer can corroborate, and corroboration will provide credibility - suspect's movements match the tip - we make the assumption because tipster was right about those details, will also be right about the bomb - note that if an officer corroborates criminal conduct, we don't even care about the tip because he's seen criminal conduct - the question with a tip is how much corroboration of innocent details we need - here, officer is corroborating a lot of details, and not details that just any neighbor of Juan would know, but insider knowledge - not everybody would know about Juan's movements - right answer's A. 3. 3 - we know there were objective facts known to the officer than another officer would have rightly used to support a stop - this is a Whren pattern - just a messy Whren pattern - right answer is D. 4. 4 - tip here is credible, and there are details, so it is sufficient to consitutute reasonable suspicion - the question concerning a frisk is how an officer in the field would feel about Wendi's dangerousness - but informants can cause reasonable suspicion for a stop - also, police can exceed the normal limits of Terry because he had specific info on where the gun was - right answer is D. 5. 5 - we are supposed to analyze reasonable suspicion from the perspective of an officer in the field - also, we don't care about post-hoc analysis - right answer is D.

Quiz 10

1. 1: A is not right bc of indoors component. Why is B pretty good: this is the call log info, classic third party data. What's wrong with C: need a warrant. D is also wrong - popo is the one installing it. Answer is B 2. 2: A is correct, but they got the info from Laurel. C 3. 3: why don't we have a tracking device problem - it's open roads. This is third party sharing. If Tesla is able to get info, popo can use it. 4. 4: what seems skeezy: standing on a roof. Rarely the case that people are up on the roof, plus it's four days, and it's happening day and night. But not a privacy violation - someone COULD have been on the roof, officer is just looking at stuff through the window. Video taping doesn't add anything to our privacy analysis - if they can see it, they can tape it. Answer is D. 5. 5: answer is C.

Quiz 3

1. 1: frisk and stop have different standards - C 2. 2: nothing suggests he's dangerous - D 3. 3: we have UNPROVOKED HEADLONG flight from the police. SC has told us that this is a possible consideration - can, but doesn't have to, give rise to reasonable suspicion - officer doesn't here detain him - A 4. 4: here we have reasonable suspicion suspect is armed, that there is dangerous criminal activity - we don't care if informant is actually right or wrong - we already know the tip is reliable before the stop happens -D. Note: in a frisk all we care about is suspicion; we don't care what they actually find. Note: popo don't have to tell you before they frisk you they're going to do that. 5. 5: no reason to think he's armed - B. Note: cop can't reach to a specific location in a frisk unless they had info about that specific location - can't exceed terry without more info

Quiz 9

1. 1: A, B, are imperfect statements of the law. Answer is D. 2. 2: at Franks hearing, judge will invalidate a warrant only if there is intentional and material falsity. We have intentional, but not material. We don't care about good faith at a Franks hearing. Answer is A. 3. 3: B is a fuller statement of the law than A. D is better than both B and A because it is filling in all the parts of the rule 4. 4: for a bodily intrusion warrant, SC has said we need some heightened level of PC, PC sufficient to justify the intrusion. Some higher level of pc - evidence of a crime, evidence that evidence of the crime is located in this person's body. Need more than just the bare minimum PC. Court has said also we'll look at the procedure itself, who does it, where it takes place. B may be important to popo, but this is NOT the reason we will allow bodily intrusion - not part of our doctrine. Correct answer is B. B is not a legal doctrinal consideration 5. 5: popo can do a breathalyzer pretty easily - why might this not even be a bodily intrusion: you're just breathing; you breathe out anyway, not going into your body. In any case, breathalyzer is ok. What about DNA: swabs during boking are legit if they are pursuant to a state statute - aka, as long as this isn't a one-off, just one particular arrestee, it's ok. Ok if you do it for everybody you are booking. Ct really struggles with blood testing, though. Seems to say that in many cases, warrant is required. Why hasn't SC just confidently said in all cases you need a warrant: we know that in the real world, it may well be that 9/10 police have exigent circumstances for blood testing. So: official a warrant requirement, but in pragmatic terms, maybe all we have is a warrant preference. Popo can only do blood testing if they have exigent circumstances. Can't do that every single time, unlike breathalyzer or DNA - need exigent circumstances. What about D: presumptively 48 hours are ok. Presumptively = might have around the clock judges, can get them before judge asap. Conversely, 72 hours might be ok if holiday weekend, small town, no judge around. But 48 hours is almost always ok. C is the correct answer - C requires exigent circumstances for there to be a blood test without any warrant. Class claim of exigent circumstances for blood: have a small window of time where we can get an idea of what blood alcohol was when you were pulled over.

Quiz 11

1. 1: B 2. 2: if text message pops up, it's fair game. C is the only one that's remotely plausible. 3. 3: A is, in general, is allowed. Thought is that the front door is open to the public. Answer is B. 4. 4: no government action involved here. Therefore the SC says no 4th amendment violation. 4th is about your rights vis a vis the gov, not other private citizens. A. 5. 5: the rule that we extracted from Carpenter, what are the limits on a third-party sharing by the popo? Pervasive surveillance. 28 days of imprecise tracking data is fatal, but lesser time period, more intensive surveillance may also be fatal. A is MORE intrusive than Carpenter, because GPS is more specific, more precise, more frequent pieces of info than cell phone tower location data. AND phone tower data isn't that frequent - contrast to GPS data, which happens every few seconds. B is intrusive, bc it's medical and health info, so feels more private in some ways than location data. problem is that you're sharing it with your app providers. This is a lot of data - so unlike location data, might be a huge amount of info in a very short period of time. Depends on what your fitness monitor is picking up. But this is a small window of time, so popo could still possibly argue this isn't pervasive. But B will probably be a win for police bc it's such a short period of time. C is bad because: the content of the texts is private. What could we say to make this ok: if popo only got numbers the suspect texted, time of those texts. That's like a phone call log, pin register. But C doesn't limit itself to numbers sent, received, time texts were sent. Note that they probably couldn't directly get the names of who you were texting. Could ask phone company whose number you'd dialed, but they can't see the name that YOU have given them. So C is problematic. How COULD they get the contents of the text: a warrant, or the other person could share it with them. Thought: what should you do if you receive a text that is evidence of a crime: report it. Answer to 5 is: B. a. One day of GPS data is probably not a violation unless there's an argument that there's s many data points that person has an argument that there are so many data points it's pervasive

Quiz 8

1. 1: D. 2. 2: for search warrant, you need PC that a crime has been committed and that evidence is on a particular person or in a particular place. HAVE to have both. Nothing in the facts about a location. On these facts, we need more for a warrant to search the house. PC to arrest does NOT automatically grant a search warrant. A. 3. 3: it's significant here that the popo were the ones that actually put the tracking device in this car, not a third party. In Jones, SC says that popo can't do this, bc it's a property rights violation. The second sentence of B is good, but it's dealing with a privacy claim, and this isn't really a privacy pattern. A. 4. 4: when the popo showed up, they did nothing at the house requiring any level of suspicion, much less a warrant. They just observed things in the front and back yard. They didn't need the warrant to do what they were doing. Note that there's nothing really in the facts that gets us to exigent circumstances. B. 5. 5: this is like the phone conversation at Kroger idea. Note that none of the answers here are great. She may have violated it, but neither of the 'yes' answers are great; at least C expresses a correct statement of the law.

A. Quiz 5

1. 1: Officer has reasonable leave this is Verdun - This looks like a good faith arrest, later found out it's a mistake - B. 2. 2: Officer has to reasonably suspect the object is a weapon. Here we're not even 50% sure, since he thought it was probably a phone. This is not a hunch. He had some suspicion, more than hunch, but not enough to get to reasonable suspicion - D. 3. 3: Officer refuses an official arrest. We are afraid, therefore, police is trying to avoid probable cause test, but still basically have an arrest. So was there a de facto arrest? There is a four part test for that. The question is how many of those factors are present here. In this case, all four are present - A. 4. 4: We cannot search the console because it has a lid, it cannot be reached in one movement. Same with a closed glove box - C. 5:A police can stop you for a reasonable amount of time period even if it could have taken less time period 20 minutes is default reasonable. We aren't going to tell officers how to sequence an investigation - D.

A. Theory of QI 1. Protect good faith actions by LE 2. BUT: "Clearly established" standard now protects LE even if subjective bad faith a. So long as LE doesn't violate the "no reasonable officer" standard. B. Quiz 18

1. 1: SITA - can search person, anything right around that person. Fact-specific analysis. Things get weird with SITA, next, bc officer can also inspect immediately adjoining areas. Also: whatever officer is doing in the search area has to be related to the crime that prompted the arrest. In inspection areas: main thought is that LE is just securing the scene - SITA here is really minimal. D is weird - officer could absolutely use plain view when walking through these rooms. But as it is, D suggests that officer could take their pick of which room to search. Doctrine doesn't formally allow popo to return to any rooms. Answer is C. 2. 2: what COULD officer do that she doesn't do: ask for consent, get a warrant. Why could she get a warrant here: has PC, saw the gun put into the car. Why wouldn't SITA be a great option here: won't get the officer into the trunk. What IS the argument that gets to the trunk: vehicle doctrine. Not 100% sure that officer has PC toward the whole vehicle, so Hall isn't sure if officer would win under that argument. But here, she has to make that argument. She searched an area that was only accessible through the vehicle doctrine (not SITA). The answer: D. 3. 3: what would a really good argument be for th officer that we didn't get as an option - community caretaking. Aka, argument would be that you want me involved in this charity, it's a good thing for LE to do in uniform so they're seen serving the community. This is attractive bc allowed officer to fudge on anything else that might be doubtful. He gets info, once in the house, through plain view - but NOT the plain view doctrine. Here, consent is the best argument available. Public safety isn't in play bc no evidence anybody is facing harm or injury. EC not in play bc we're not doing criminal law enforcement. Why is consent not a perfect argument: no evidence that she specifically knew it wasn't for LE in uniform. On the other hand, what can the officer argue: that there was blanket consent, note implicitly says 'you can come in.' 4. 4: what's our general thought about barns, sheds, and gazebos: they're open fields. Doctrine says that open fields are anything that's not curtilage. Could a barn have its own curtilage: yeah, if somebody lives in it, if you have a workshop ro study in it where you spend a lot of time in it. All sorts of things that you could put in your barn that would cause it to have curtilage. Same goes for a shed. Absent these facts, though, these are all open fields. Why could the drone fly into the barn without giving suspent a good argument: if doors are open, Hall doesn't see some reason why drone couldn't fly through bc obviously officer could himself walk through it, if it was open. Answer is A. why is B not a good option: you talk about warrant exceptions with ECs, IF the officer has PC and could theoretically get a warrant. (NOTE: consent ALSO blows PC out of the water) 5. 5: note that anything officer acquires after officer should have left is invalid. Answer is B.

A. Quiz 16

1. 1: an inventory search is permissible only if the dept have a standard policy for inventory searches. If officer did this as a one-off, can't pretend it's an inventory search. Have to be part of routine procedure. If there was routine procedure, and officer activated here, then we're good. Answer is D. 2. 2: pursuant to vehicle and container doctrine, which packages can officer search: ones in the car. That's it. So this isn't a perfect rule, but it's formalist, bright line. Answer is B. We have no flexibility here. If we wait til she's had the car fully loaded, though, could be dangerous. 3. 3: is it relevant that one of the guys says yeah that's mine: no. because under vehicle doctrine, we can search passenger stuff. Don't even need to know that it's passenger stuff. All that we care about is that the bag is in the car. Answer is A. 4. 4: can you do a per se search following an arrest: yeah, so A is true. B is also right - this is just a long-winded way to say PC. Answer is D. SITA COULD get us to the glovebox. 5. 5: it's important that here we are specifically looking for a missile. We can search ONLY where a missile could be located. That's not the whole car or every container in the car. Officer can't open a little tiny pouch - absent more facts, no. So answer is C.

I. Vehicles A. Vehicle Doctrine 1. Warrantless search with probable cause a. Permitted 1) Initial rationale i. Mobility 2) Modern rationale i. Less expectation of privacy 3) Modern rationale b. Applies even to RV

1. Discussion/explanation a. Doctrine is really simple - popo are allowed to do search if have PC 1) If popo are looking for evidence, thinking where it might be, have PC, then what they can do is a vehicle search. To do a house search, in contrast, need either warrant or exigent circumstances 2) If popo are choosing house search or vehicle search, vehicle search is more attractive, don't have to get warrant. b. There will be regular but not constant overlap between arrest of someone in the car and search of vehicle. 1) How do they differ: PC to arrest = PC that this person did a crime. PC to search a car = PC that there is evidence of x crime in this vehicle. 2) Often, the fact that popo arrest someone in the car means that popo have a straightforward argument that they have PC to search the car. c. If popo are making an arrest, get to do SITA. PC vehicle doctrine search much more comprehensive. 1) SO: Terry frisk of car (grab zone), SITA, vehicle doctrine - these are three diff kinds of searches you can do for a car, each with a different scope. d. Initial rationale for vehicle doctrine: 1) vehicles are mobile. 2) Why do you think SC was originally focused on this: thought was that bad guys could take cra, so popo need to be able to search it now, not might be able to find it later. i. Why doesn't this make too much sense: the same thought applies to humans. 3) Modern rationale: just have less privacy in your car. i. Half of the car is windows, people walk past your car all the time. ii. Critique of this: many of us spend hours by ourselves, alone, in our car. A lot of us think of our time in our car as me time. We all engage in behavior in our cars that's the sort of stuff we might not do in a room with other people, bc we feel like we're in our own little bubble in our car. iii. Ct is effectively saying your car is much less private than you think it is. We let our cars be gross, gross like our houses aren't. feel comfy with that bc it's our car. The way we thinking about our car doesn't match what SC is thinking about it. e. Concept of vehicle doctrine doesn't just apply to cars, but also to RVs. 1) Why is that weird: some people live in their RVs. RVs are specifically built for people to live in. f. What do popo get to search with this doctrine: the whole vehicle. The whole car. In SITA, can't search locked glove box - but DO get to search it here. Is a container, but not an accessible one. 1) With doctrine, can search trunk, engine compartment, every row of seats. Wherever popo have PC to think evidence is - this could be a really aggressive search, then. g. Evaluate the search based upon the specific evidence you're looking for. 1) If you're looking for evidence for a crime that just happened, can only look places it might b. if looking for evidence on a crime that happened a year ago, can search more places, bc suspect had time to hide it better.

A. Quiz 24

1. 1: here, we don't know if this was, wasn't a more purposeful violation. It's conceivable here that LE can prevail, but have to show it wasn't purposeful. Answer is D. 2. 2: this is a standing question. Absolutely Gilmore can raise it. Answer is C. 3. 3: we're struggling with how to categorize Tristan. Hard part is that he's not an overnight guest. Will have to convince court he's got standing. 4. 4: the basic answer here is no, can't comment on invocation of right to remain silent. 5: we know in general driver has standing to challenge 4th amend violation. Who else has standing to challenge a search: the owner of the car, bc there has property rights, maybe privacy rights if they're also in the car. Do passengers to get challenge the search: in general no, unless they have a strong connection to the car. Answer is A. issue is NOT because of the language here. Note that the passenger COULD argue against the acquisition of evidence in this situation if he had standing to argue against the illegal search.

A. Quiz 25

1. 1: officer Tindall finds the pool of blood. What's the problem for Tindall - the search is illegal, and pool of blood is FOTPT. What's the possible argument for admission here: independent source bc of the groundskeeper. Inevitable discovery is a possibility here, but def not as strong as independent source. Problem with IS in this fact pattern: the late arrival of officer Pauley. But still probably works bc of the groundskeeper really does find this. 2. 2: why's this problem diff than the first question - we're dealing with a Miranda violation. Miranda doesn't have a FOTPT regarding physical evidence by the LE using information obtained through the Miranda violation. Answer is A. 3. 3: why is there an argument that Francoise is FOTPT - the suspect only confessed once. Why is this not an independent source - bc Francoise's info wasn't prompted by just him wanting to come forward. LE could make an attenuation argument - don't have a lot of time pass here, BUT have an intervening act of free will by Francoise. Answer is D. note that this isn't a typical attenuation fact pattern, but one of the attenuation factors is still intervening act of free will. A problem for the LE: short passage of time, relatively few steps. Another attenuation factor that'd be a problem for LE: there are two violations here - illegal arrest AND illegal search. So a possible argument that this is a flagrant violation. Maybe that allows defense to say yeah intervening act of free will, but it's such a flagrant violation. Good comeback . 4. 4: with these facts, know there's a 6th amend violation - have a defendant questioned without counsel. 6th amend FOTPT: normal analysis. No attenuation argument - nothing interruption. No independent source -the officer is the one who goes and gets it. So this is inevitable discovery. Thought is that it's in a public place, before school starts there'd be somebody who would find it. Not literally inevitable bc custodian might just take money. Not a perfect argument. Somebody may well never say a word about this. Answer is D. 5. 5: we have a DP violation. That puts us in a diff posture for the entire question. Much broader exclusionary rule. DP violation is as flagrant as it gets, so will be very hard to argue for attenuation. May still have independent source, inevitable discovery, but it's going to be hard for LE to come out on top. Arguably we have independent source, but that's balanced by flagrancy of violation. C - a general FOTPT thought, not likely that LE would argue against this. Answer is D, flagrancy of the violation.

A. Quiz 13

1. 1: officer's argument is that there additional evidence of crime in the car - why: it's suspect's getaway car, happens right after bank robbery. Officer gets to check area immediately accessible to suspect. Here, that includes duffle bag. Answer is C. the thoughts we had about this 2. 2: here, officer has warrant, so he's allowed to enter the house. Furthermore, popo can manipulate rules to get a good result for SITA. Why is it not a problem that popo here only has a hunch: SITA is a per se search, means that officer needs no additional suspicion to do the search 3. 3: it does NOT matter why this starts as a citation stop: you can develop otherwise PC during a citation stop - ebb and flow to many encounters. Matured into an arrest stop. Why doesn't officer get to do SITA: needs reasonable suspicion to do SITA for vehicle - officer needs reasonable belief suspect could regain access to vehicle or reasonable belief of additional evidence in car. Needs a really good belief, more like PC than anything lse. 4. 4: search of arrestee's body is per se under SITA. We care more about people's bodies than there cars, but there is no additional step before popo can search someone's body. Answer is D. 5. 5: doctrine is that officer can inspect adjoining areas. Could officer walk down the hallway and look in the bedroom? If we're in a small house, the bedroom will be pretty close. Still close to the suspect. If really small, then there's an argument that popo get to look everywhere, bc it's so small and connected. Depending on how big the space will dictate whether popo can look. Note this is much small in, say, Starbucks - can only search, say, your little spot on the bar. Immediately adjoining area is also much smaller. Note: accessible containers - if in a rich, palatial living room, backpack might be farther away. If living room is super spartan, modernist, might be able to search it though. Think about size, how many corners officer turn, how many obstacles are between officer and the item. Easiest argument: straight shot, short distance. But even a few corners, officer can argue it's still adjoining. Note that additional facts found during SITA could end up with PC for another arrest, exigent circumstances

A. Quiz 7:

1. 1: remember that there are two pieces of this - subjective and objective - absent other evidence, we assume that suspect's have a subjective expectation of privacy - here, the blinds are not open - is this objectively reasonable? Is the officer in a lawful vantage point or public vantage point (a place where a member of the public COULD stand) - here, officer is committing an observation (NOT a search); D is not correct - this is NOT a search; it just has to do with the weird way the SC has defined 'search' - officer has just made a mere observation, so officer doesn't need an requisite level of suspicion - C. 2. 2: didn't violate Denise's objective expectation of privacy bc she shared this info with a third party, third party gave this info to the popo - this is basically an 'assumption of the risk' situation - you gave out that info - remember also we only run reasonableness test when officer does a search so not D - answer is C. 3. 3: C is creepy, but constitutional - answer is D (this is a really problematic vantage point - not a location where e member of the public, a neighbor would be standing. Note that the popo could still win if this was a spot where, say, a meter reader would need to be). 4. 4: Scully never has a private conversation bc of her belief that the gov is monitoring her convos - she has no subjective expectation of privacy - so 4th amendment falls apart in this weird scenario, even if popo are breaking objective expectation of privacy - D 5. 5: if officer doesn't commit conduct that requires a level of suspicion, officer doesn't have to meet any test - popo commit observations all the time, nothing we can really do about it - popo here could be doing this for a good reason, no reason, or even a bad reason like he doesn't like Hannibal, but none of this matters if officer isn't doing a search - D.

A. Quiz 6

1. 1: there are a number of issues here - does the arrest warrant allow the officer to enter the house - question is whether the officer gets to come in unannounced - K&A is completely within their power - there are exceptions to K&A that are similar to exigent circumstances req - there's no evidence that this suspect is dangerous, no particular reason for officer to claim no K&A - A (this is the only answer that works) 2. 2: what is, isn't the detective allowed to do - cannot enter the house even with PC bc they don't have a warrant, no particular evidence of exigent circumstances - what COULD the officer do: arrest outside - PC doesn't allow you to enter without exigent circumstances - getting a warrant is always a good idea, B, but B is wrong because officer doesn't "have" to get a warrant - does K&A have anything to do with C? No - K&A is what you do before you ENTER - there's no req officer K&A before luring out the suspect - D doesn't make sense bc we have no facts telling us that there is danger of a fight, harm to bystanders - C. 3. 3 - be nervous about A because there is no mention of the exception - B is a doubly good answer bc it doesn't guarantee one result or outcome, plus it has the rule - C is a red herring bc we don't care where the officer got their PC - B (fuller statement of the rule than A) 4. 4 - is there anything in these facts that suggests that the police can't arrest inside Lucky's? No - in general, yeah, popo can walk into bar and arrest a suspect, which means there's not really a "bigger" issue that needs to be addressed, and we know that warrants are always better for the police - gives popo the most options - warrant allows for a much longer period of detention - warrant also gives popo the ability to arrest in places privacy-protected, like the suspect's home - A doesn't answer the question because it doesn't answer the flexibility question - B may also be right, but again, doesn't answer the flexibility question - C, getting a warrant, is always the best option - D is just wrong - C. 5. 5 - the first three options are exigent circumstances answers - so D is the only right answer - D.

A. Quiz 14

1. 1: this is setting up plain view doctrine. Officer needs lawful vantage point, right of access, criminality immediately apparent. First two: invited him in. third: the robbery just happened. So answer is B. 2. 2: doesn't fall under Jacobson - would need to be a trace amount. Here's we're just nervous. 10 grams isn't a lot, but we don't know if that's really a trace amount. So doesn't automatically fall under Jacobson. Answer is D. 3. 3: shirt not immediately evidence of crime - might have cut himself working, PLUS it's on his workbench. Another reason why it's not immediately evidence: this is money laundering. There's nothing to be thinking Gilbert is a violent criminal - not like this was an arrest for assault. Yeah, it's suspicious, but NOT IMMEDIATELY apparent. Touches shirt to examine it, and he can't do it. If the severed finger was on top of the shirt, bad news for suspect. But touches then and then finds the finger, that'a violation of Arizona v. Hicks. 4. 4: open fields, no particular high tech device here. No evidence that officer gets particularly close to the RV. Plus, he gains the last, critical piece of evidence just by smell. Answer is B. 5. 5: body is in plain view, officer absolutely allowed to take in evidence. Potentially problematic thing: opened the car door. Nothing in doctrine says officer is allowed to open the door. Officer could do a Terry frisk, but that's not what he's doing. If the door were open, then we'd have the question of whether officer allowed to touch the body. Problem here: citation stop, no SITA allowed - needs some justification for opening door of the car. Answer is A. not a good setup for plain touch.

A. Quiz 15

1. 1: tracking the scope of search based upon the words of the suspect. In this question, the suspect's words suggest some limited duration for the search. Answer is C. 2. 2: here, popo should've asked if he was a professional painter or if he lived in the house. If he had said I'm the owner's cousin: he will then have apparent authority. Cousin isn't just a limited licensee - you've actually left them in charge of your house. BUT the popo don't ask that. Somebody wearing white overalls looks like a professional painter. It's not that the popo couldn't, then, have gotten authority for the search, but rather that they didn't have a good assumption for apparent authority. Answer is: D 3. 3: we're nervous that this is on the edge of a bribe. Is superintendent allowed to give popo a trash bag, though: yeah. Superintendent could do this even without the money. Feels skeezy, but we know that popo regularly pay informants. Don't let the scumminess distract you from the fact that trash, once it's set out for collection, is free game. 4. 4: here we have a drone. In general aerial surveillance falls under our standard model: did popo make observations from a lawful vantage point. If dealing with traditional helicopter, asking if popo flew it into navigable airspace. Hall doesn't know if that question works for drones - they're almost by definition operating below navigable airspace. Why is C not a good argument: this drone is only 700$. A lot of police departments have 1600$ drone. Answer is B. B is the argument we're brainstorming. 5. 5: there are equal steps taken to protect first and second curtained area. But first curtained area is more private bc of nature of use. Why no good argument bc of fence/wall/enclosure: only four feet tall; it's not an encloseure that's really privacy protection. So almost a zero under Dunn factors.

A. Quiz 22

1. 1: warrant is facially valid. Material fraud, though, is an exception to good faith doctrine. In that case, we won't let officers prepare a fraudulent warrant and then hand it off to somebody who doesn't know. So this is the exception to the good faith rule. Answer is D. on exam, could argue whether or not this falsity was deliberate 2. 2: officer allowed to go in bc of EC, hot pursuit. Remember that EC in this case doesn't do away with knock and announce. So this is a little bit of a weird pattern. Entry could be const, but officer still have to do k and a. this question, though, is about the fact that there is no EC for k and a, even though it is a const violation. Answer is D. 3. 3: this is testing the fact that the 4th amend rule only applies to case in chief, not to impeachment, probation and parole, sentencing. So judge gets to still take this evidence into account. Answer is B. 4. 4: he's def questioning him without his counsel. This is def an interrogation of a defendant without counsel present, presumably without permission of defense counsel. 5. 5: this is arguably coercion, threats of violence, implied threats of violence. This is a DP violation - blanket exclusion, exclusion for all purposes. So if you have a possible DP argument, even if it's really weak, make it. Winning coercion = where we have torture or the equivalent. 100% winnable argument: 6th amend right to counsel. If you can make that one, too, make it. But not as wide range of exclusion. So answer is A.

Quiz 21

1. 1: we absolutely have interrogation. But we DON'T HAVE custody. So we don't even need to talk about the exception. Would the exception even apply here: no. the call of the question here is just about basic Miranda. No violation here - no custody. So answer is B. 2. 2: care about voluntariness with DP, not really Miranda. 3. 3: we have custodial interrogation here. So Miranda is triggered. Answer is D. 4. 4: the issue is what, from suspect's pov, did this situation look like. Did it look like custody. Our rule for custody is that we evaluate it not from the officer's pov, but a reasonable person in the suspect's position. What would a reasonable person in this situation think. Would a reasonable person think they were in police custody. Make arguments back and forth. Suspect here has a really strong argument that a person in her position would think they were in custody. Why not A: we're not testing the adequacy of suspicion here. This answer seems to be focused on whether custody was justified. C comes the closest to what we were thinking, that's the answer 5. 5: officer still has to give Miranda warnings. We don't care about the suspect's understanding of the Miranda warnings. This suspect is also likely to make incriminating statements, so we want to esp make sure those would be admissible here. Answer is D.

A. Quiz 22

1. 2: LE can't engage in deliberate elicitation here bc he's in custody and he invoked his rights. A is the opposite of that. The fact that he might have made an implicit waiver doesn't matter, what matters is he triggered his RTRS. C, in turn, isn't a bad place to begin thinking about this - it just doesn't answer the question that the facts pose. D gets us to the thought that we are/should be having. 2. 3: problematic here not bc it's a threat, but bc this is an incriminating statement. So this is a medium-complicated problem. There are a couple of ways of looking at this. Is she in custody - yes. What could officers say to avoid a Miranda argument, on the threshold: he never asks any question that would reasonably illicit a response. No interrogation. A matches one of the thoughts we're having. B isn't really relevant - we're not asking a DP question, or if we were asking if we have a valid waiver of Miranda. C isn't irrelevant, but this is begging the question of whether Miranda was even triggered - not responsive to the facts. D - we don't have to talk about waiver unless we're in a situation where Miranda applies. This question is really just about whether Miranda was triggered. Only answer that gets us to that thought is A. 3. 4: A. none of the other answers state the rule. 5: RTRS isn't as strong a right as RTC. Of course they should invoke both. But RTC is more robust, and we KNOW this. That's totally straightforward. A is wrong bc Jerri doesn't necessarily, personally, care about it. C - we're presuming that the SC's standard for invoking RTC also applies to RTRS. D - the standard for waiver is the same for both rights. Only diff is that RTC prevents LE from continuing interrogation under all circumstances, whereas RTRS has a big loophold.

A. Tip/Informant as Basis 1. PC Requires facts/circumstances, NOT assertions or belief a. Allowing inferences b. For search and arrest c. Particular problem - confidential or anonymous informants/tips generally 2. Basic explanation of intro to the idea of tips and tipsters: a. Return to the idea that the requisite level of suspicion popo are using for anything, anything where they need suspicion, that can come from reports by witnesses, observations by popo, dispatch, or from a confidential information or anonymous tipster. b. Our normal thought is that anything the officer says with their own eyes counts 100%. Anything from another officer is 100%. Anything officer gets from a witness counts for 100%. Anything from dispathch is 100%. But something from confidential informat or anonymous tipster isn't. we're suspicious of that bc tipsters could be trying to get popo to harass somebody. Also, informants are often people in the criminal world giving info to pop ofor their own self-interest. c. There's an old test and a new test. d. The old test has several parts. It's hard for the popo. The other test is the Gates test, it's easy for popo. Gates test is used by the fed system, a whole bunch of states. Old test is used by some other states. e. Popo can't use assertions or beliefs.

1. Aguilar-Spinelli Test a. General facts 1) Two-pronged test for PC sufficiency of tip 2) Difficult test for law enforcement 3) Still used by some states 4) Replaced by Gates in the federal system b. Two-pronged test: 1) Basis of knowledge i. First hand vs. second hand info 2) Veracity i. Credibility (identity of informant) ii. Reliability (track record of informant) iii. Sometimes: admission of involvement/statement against interest 3) (This third prong is sometimes thrown in) Corroboration i. Verification of the tip's info may save an otherwise insufficient tip c. Explanation 1) Aguilar-Spinelli test (soe states use): cts call it a two pronged test, but there's actually a third prong. Difficult test for poop, bc have to pass both prongs. 2) First prong: basis of knowledge prong. Asking if the tipster has first-hand info. Evaluate this based on the amount of detail in the tip. Hall thinks this is stupid. Popo satisfy this if tip purports to include details nly an insider would know. 3) Second req: veracity. The truthiness of the tip. Diff ways to est this: 1) we know the id of the informant. If id is known for being truthful, got veracity. Also have veracity if an ordinary person gives their name, no reason to think they're lying. i. Reliability - if person has previously given us good info, know they're reliable. Have veracity then. Another way popo can est veracity: if the tip puts the tipster at risk - if they say they're part of a conspiracy and trying to get out. 4) Third prong: What if we have a tip that doesn't meet basis of knowledge prong, but contains details popo can corroborate: corroboration can otherwise save an otherwise bad tip. If we have a tip that doesn't meet both prongs, popo might be able to save it by verifying details in it. That's the third prong. Which details count the most: corroboration of predictive details - ex if asay that Paul is going to get in his truck and drive to hotel at 6am and pull a black case out of his trunk, and popo then watch him do it, that's good, that'd save an otherwise bad tip. 5) So this is a messy test. 2. Gates Test a. Totality of the circumstances 1) Veracity, reliability, and basis of knowledge 2) A deficiency in one area can possibly be compensated for by a strong showing in another, OR by some other indicia of reliability b. Keys: 1) Corroboration 2) Predictive nature of the tip c. Explanation 1) Look at totality fo the circumstances, all of the info, and ask if there's PC. Will still ask about veracity, reliability, basis of knowledge, but not have a mathematical formula. Ex: regardless of corroboration, if have tipster that is almost always right, that's good enough. Under this test, can consider literally anything popo can put on the test to tell us they're received a reliable tip. 2) Corroboration is still really important, as is predictive nature. If popo can est either of this, that's huge (for either test, really)

A. Anonymous/informant tips 1. Standard: a. Indicia of reliability i. Details to est knowledge or credibility b. Corroboration of details by law enforcement i. Prediction crucial? 2. Magnitude of crime/danger affects analysis 3. What is the concern: potential for harassment

1. Anonymous/informant Tips: we are looking for indicia Of reliability that is details to establish knowledge or credibility. A keyword regarding credibility is reliable. Factors that can contribute to a source being reliable is if they have a good record or if a witness ultimately backs up what that informant says. Note that anonymous phone calls are reliable. Similarly tips with a lot of details often feel bogus. This is because fake tipsters will often just make up a lot of details if they want to get someone in trouble. Note also that corroboration can save a bad tip

A. Comment on silence 1. May prosecutor comment at trial on D's silence during custodial interrogation? a. No, even if D gives exculpatory evidence at trial 1) "Why didn't you tell the officers?" 2. Invocation of Miranda rights carries no penalty a. Similar to rule that prosecutor may not comment on D's decision to not testify 3. Vs. pre-arrest silence a. Prosecutor comment allowed

1. Discussion/explanation a. Here: Switch from investigative process to the trial process. Not an interrogation question, just a trial question b. Thought: if the suspect invokes their RTRS, prosecution is not allowed to comment on it at trial. What might prosecution want to say: the D is not even going to tell you his side of the story, to take the stand. Here, what prosecution might want to say: going to put on alibi witnesses, but didn't tell the officers when they arrested him about these witnesses bc he made up this alibi later. c. Logic of this: according to the SC, you don't have an effective RTRS if prosecution can beat you up at trial for invoking it. d. The prosecution IS allowed to comment upon pre-arrest silence, before you have Miranda rights. If you're not in custody and LE ask you questions, you say you don't wanna answer, prosecution is allowed to comment on that. e. On exam: bring up this slide ONLY we are at trial, prosecution is trying to say something like "why didn't you talk to LE, bring up these alibi witnesses."

Discussion/Explanation of standing 1. Standing: This is not really standing, not the question of whether a suspect has the right to be court. But the SC used this word in the first set of cases. SC has since then acknowledged that it really isn't standing, but people keep using this word. a. Real meaning: If you're on trial, you want to suppress some evidence bc LE violated const, you don't automatically get to make that argument. You have to prove that LE violated YOUR RIGHTS (NOT the const). 1) Ex: you're in a gang, you and somebody else commit a crime, steal, at friend's house with property, LE commit illegal entry in the house, find you with he property. Who gets to raise that as an issue, your friend or you. i. Prosecutor can prosecute you and offer you a deal if you testify against the person whose house they broke into. ii. Your friend is the one who can raise the const violation, suppress the evidence in their case. So LE go to the other person, say testify and give you and deal. iii. Prosecution gets a win in both cases. Person who can't raise it will get convicted. Police leverage that to get testimony against the person who CAN raise it. iv. This is really important to understand how cases involving multiple people work in the real world. 2. Mere existence of a const violation doesn't mean that any D, automatically, gets to raise it - have to have standing. a. Classic ex: the only person who has standing is the person whose house the LE break into. 3. Improper search of car: only person who can raise argument is owner or someone authorized to drive. Pasengers don't necessarily have a privacy claim with the car. 4. LE could commit a flagrant 4th amend violation, but can go unvindicated, or if multiple people, prosecutor could arrange a clever plea arrangement. a. Who can assert a 4th amendment search claim? b. Easiest to analyze with search claims. Who can assert it. The mere fact that someonbody is a suspect doesn't mean that they can assert it. Only person who can assert the search claim is the person whose privacy or property rights are affected. c. So: your house, have both privacy and property rights there. If your car, have both privacy and property rights there. 5. If all we have is one person in the case, this is probably not a super complicated - that person has standing or they don't. where we get complicated stuff: multiple Ds, one of whom has standing, and one who doesn't. 6. Homeowner and tenant and tenant's parent: parent has no property rights unless it's a student in their parent's condo. Mom and dad are visiting. Do mom and dad have privacy rights? a. Depends on if they come regularly, not just briefly, but for some significant length of time, and bc they're frequent visitors or are there for a long period of time. If they come frequently, and have a key, they absolutely have privacy rights. b. Say that you live there, you have a SO, they have a key, that person is at your place a lot: they have privacy rights. 7. Tough case: people who are short-term guests. a. Somebody who comes over for dinner - no privacy rights. b. If they have their own bedroom, Hall thinks they probably have privacy rights in respect to that bedroom. c. If there's a guest bathroom nobody else uses, maybe they have a privacy right there too. d. If just sleeping on the sofa, doubtful that they have privacy rights, esp in regards to the whole room. e. When does a visitor have a reasonable expectation of privacy? Have the thoguth that some guests are frequent, have their own keys. f. Complicated: people who spend the night. They're spending into the realm where they could have a privacy claim. Depends on where they're staying, if they have a door they can close. 1) How could we bump up an overnight guest: if they're a regular guest, stay over a lot. Bump it down: you're helping out some youth group staying at your church, the person in your house you've never known before, you'll never see them again. 2) Amount of itme: if there for less than four or six hours, have basically no privacy case. 6-8 hours minimum.

1. Commercial premises: who has an expectation of privacy - some employees, in their offices. NOT in the retail space. But if there's a locker room, office space, maybe have expectation in those other spaces. Do customers ever have an expectation of privacy? Maybe if there's a changing room, a bathroom. a. Treat hotels like short-term tenancies. b. In short: much harder to have a privacy claim in commercial spaces. c. Non-commercial spaces, like your home: home is complicated. The mere fact that it's a non-commercial space doesn't automatically mean that somebody has an expectation of prvacy. d. Apply the same thoughts to a car. If you're a guest in somebody's car, have a tough privacy argument. 1) When in a car do you have a hard privacy argument: a cab or uber, bc it's a commercial space 2) If you're in a friend's car, can you argue for privacy rights: cross-country road trip. Spending a ton of time in there. In the car as much as the actual owner. 3) Another space where you could make reasonable privacy claim: you carpool. Also: if you borrow their car, you're a legit driver of it, so you have privacy rights in it. 4) If you are a legit driver, even if jus tborrowing it, or if a rental car, you 100% have privacy rights in it. 2. Rejected bases for "standing" (doctrine and legal history) a. Hall thinks there's a good argument that we simply don't allow prosecution to come into court with evidence taken through an unconst search. Lotta people says there need to be some level of judicial integrity argument. Court has rejected this. Lots of scholars say that we need a DP argument for standing. Ct rejected this. b. What else has ct rejected: rejected the idea that anybody simply, legit on presmises has standing. Rejected the idea that any guest, any invitee has standing, that sjust bc somebody is a co-conspirator they have standing. c. Ct has also rejected the idea that as a homeowner you should be able to confer standing on your guests. Argument: SC is effectively taking away rights from you as the owner or tenant. 3. Driver of vehicle can assert claim, bc our assumption is that they have permission to drive. Exception: thieves. a. If you are a legit driver of a rental car, can make a privacy claim, EVEN if you are breaching the contract (in having an unauthorized driver). 4. There are two levels of analysis here: 1) privacy; 2) seizure Everybody in the car may assert an unconst seizure claim, not just the driver. If there's an unconst seizure, plus uncosnt search, going to argue that everything coming out of the seizure is a "fruit" of it.

A. More explanation/discussion 1. Protect and serve doctrines: NOT CP doctrines. Popo aren't doing criminal law enforcement. Public safety actually has some form of a rule to it. 2. Public safety: including reasonable basis for believing occupant seriously injured or imminently threatened with such injury. Brigham City, Utah v. Stuart (2006) 3. Community caretaking: don't really have any test for this. 4. If popo are engaged in public safety or community caretaking, and legit in your house, and see or hear or smell something, that's fair game. Gives them a lawful advantage point that they might not otherwise have.

1. Complex thought: might be some situations where popo are doing community caretaking AND criminal law enforcement. Aka, there's a toddler outside, popo wonders why this kid is outside, maybe they're also thinking child abuse in addition to helping kid get inside. a. Alt: there could be a fire, popo could think it could be a normal fire when go to help, OR could be thinking that it is arson. Aka, they have mixed motives. Don't have any SC guidance on how to treat that. 2. Have the same thought here that we do with roadblocks. Primary purpose test - aka, popo are legit using community caretaking if that is their primary purpose for being in your house. Suspect, in turn, will want to argue that popo were mainly motivated by criminal law enforcement. 3. Exigent circumstances is a doctrine popo can use when doing criminal law enforcement. Popo can't do ANYTHING just if they have EC. Popo need PC. EC is just an excuse to not get a warrant, but even before that, have to have PC 4. So theoretically: popo could simultaneously have PC, a public safety argument, and an EC argument. Because one of the EC factors is public safety

I. Fiduciary Duties A. In-class notes 1. What is the fiduciary duty of a majority shareholder, given that theoretically you should be able to vote any way you want. But in practice, you're calling the shots, appointing directors. 2. If you're only wearing your shareholder hat, question is: how can you owe a duty to an entity, much less to other shareholders of the entity, solely by reason of owning shares of the entity? 3. Courts normally don't consider just electing someone means you're beholden to them. 4. Courts don't mind giving duty to directors, since they chose to be directors voluntarily (?) 5. Zetlin 6. Sylvestri family owns 44% of Gable Industries. Diverse shareholders own 56%. 7. Black letter rule here: you're entitled to a control premium (in the case of an acquisition?), when maj shareholder 8. DO NOT UNDERSTAND 9. Idea: you should be paying MORE for actual control of the company, despite whether you're buying the company itself. 10. Zetling black letter rule: right to receive control premium. 11. If you have control, the co really is nothing more than a pile of gold, gold is worth 10 million. 63 percent owned by diverse shareholders. The seller, the owner of the 37%, has control of this company. This is working control. What are you assuming about the diverse shareholders: each owns a v small percentage. Plus, hard to get all of them to cooperate together. Seller owns something worth 3.7 million. Maybe the buyer is entitled to more than 3.7, bc entitled to control premium. What will happen as soon as buyer buys the 37%, elects the directors, directors give buyer key to the vault: will take all the 10 million for themselves. Is that fair, if they only paid 3.7? Yeah. 12. So: by buying a controlling share, essentially buy the right to look a company. 13. Is there anything that could clue in seller that this is a looting situation: if buyer is paying control premium price and in fact more than is necessary.

1. Control premium: shareholder with control can charge this. 2. Exam question: Feldman. Who is directly responsible if the gold is looted - the looter. Can be hard to punish looter. That can change our perspective on whether sellers should be liable in these types of situations. 3. Looter is the one actually breaching fiduciary duty, but we're going to hold the seller responsible. Do you get to recover from both, in respect to the same looting? 4. SC says we'll hold seller liable. 5. Seller will argue he's not on notice bc not getting an exorbitant price. Also need to look at the buyer's history, how liquidatable the assets of business are. 6. If we have Feldman fact pattern: in the background we have seller (won't have a looter, too easy). Ex: Feldman has 37% stake. The company, Newport, is being sold for eight million. Each share was trading at 20$/share. Nothing screamed out that this was more than a control premium. BUT: Newport is in the business of making steel. What type of buyer is most likely to exploit a seller of steel: a buyer or distributor of steel. That's a red flag, on notice a little bit here. If the buyer, then, gets steel from the company for way less than everybody else pays: self-dealing, can think of that as looting. 7. If DO sell steel to buyer at a lower price: the shareholders will take a hit according to their respective percentage ownership. Net loss to them, net gain to the buyer. 8. Drafting issues 9. Ex in class: anything above 175 is pointless, have no right to anything above that. 10. What is the purpose of the 100 payment - so there'll be consideration. BUT is it consideration for the whole package, just the first option, just the second option? 11. Another ex, are board members' fiduciary duties implicated? 12. What else can you loot: a Feldman plan. 13. WHAT IS A FELDMAN PLAN

A. Abandoned property 1. No reasonable expectation of privacy in garbage/abandoned property

1. Discussion a. No reasonable expectation of privacy in garbage/abandoned property. Reason for this, via property law: 1) you gave it up, don't want it any more, relinquished your rights to it. So legally there's nothing to talk about here. b. But why, from an everyday perspective, is this disturbing: 1) we put personal stuff in our garbage. We know not to do it, but we do it anyway. More generally, why are we disturbed about someone going through our garbage: there's DNA in here, skin cells, hairs. Could get a really good profile of how you live your life - know just as much as they would by going through your phone data. 2) A lot of us treat our garbage like nobody will see it, but that's not what the legal doctrine really says. c. Garbage put out for collection is abandoned property. 1) Some cases draw a line between getting garbage from front of your house, end of your driveway, getting garbage from garbage collector. Which of these three is safest for police: wait until the trash collectors have picked it up. That's the moment at which title shifted. Hall also thinks it's safe for popo to pick it up at the curb. But if wait til trash collectors have it, no doubt that that stuff has actually been abandoned. What if trash is up in trash container at house: popo still have an abandoned argument, but not as strong. But not airtight, homeowner can still argue haven't really relinquished it

A. More Vehicles 1. Warrantless search of vehicle without probable cause? a. Inventory search allowed only if: 1) Standard/routine procedure for that law enforcement agency

1. Discussion/explanation a. Inventory search: 1) The idea that in many situations where epopo have PC of evidence in a vehicle, we're heading towards the vehicle being seized and towed to impound lot, getting a warrant. Heading to somewhere down the road where this search is going to happen. i. The idea here is that the popo are going to get to do an inventory search. This search is based on the fact that the popo are seizing the vehicle. ii. Can seize it for all sorts of reasons. Once they seize the vehicle, they get to do an inventory search of it. This is like when you have a booking search at the popo station. 2) One hitch: warrantless search of vehicle needs to be standard/routine procedure for the LE agency. i. If we're in a big city with an impound lot that regularly does these searches, we're good. 3) Routine or standard procedure: i. popo can't tow your car bc they're after you, and just bc they're after you they search your car. Can search ONLY if they're searching every car. ii. Why would a big city popo dept do this, have a standard procedure of searching cars: the popo have taken your car, they don't want you to come back later and say popo stole your ipad. Another reason wanna know what is at the impound lot: might be things in the lot people wanna steal, so we take valuables out of car, tag them and lock them up so they don't get stolen. Also: might be worried there'd be perishables, bombs, bodies, dangerous things in the car, things that would present pest hazards - want their lot to be well-run.

A. Immunity 1. Governmental liability a. Only if policy 2. Individual liability a. Only if action in contravention of clearly established constitutional right b. Otherwise qualified immunity c. Question of law d. "Constitutional Right" 1) Not: Free from unreasonable force 2) Instead: free from unreasonable force "under circumstances of the case" e. Key: very narrow definition of constitutional right 1) Hall: theoretically POV of Plaintiff, but QUI seems to convert cases into pov of defendant

1. Discussion/explanation a. Qualified immunity: Is NOT crim pro doctrine. 1) We're talking about ti bc there is still some ability to regulate popo's use of force. Even if P has a very strong claim under excessive force, they have to scale the qulalified immunity hurdle, that's even harder than we have here. 2) Aka, could have a slam dunk excessive force argument, but still lose bc of qualified immunity. 3) QE is pure civil. b. What are our preliminary thoughts: it's weird that we are having a civil alw discussion. We are mainly, here, dealing with criminal law issues. 1) Why are we not able to have a simple criminal law discussion right now: these issues are not coming up in a classic case where the victim of police brutality is the D in a criminal suit. i. Why is that unlikely when the claim is excessive force: bc all of the evidence is just evaluating if the popo has PC. Bc either suspect is innocent, so not have case, OR bc the popo is using excessive force while they have PC, in which case we don't care. Excessive force doesn't convert an otherwise valid arrest into an invalid arrest. § Aka: if the suspect, the victim could bring these issues up in a normal criminal case, we wouldn't be talking about immunity, wouldn't be an obstacle for the SC when considering these claims § These claims do not come to light if we have an innocent suspect, if the popo have PC. That's why we need a separate, civil lawsuit. Some of the people bringing these suits are great people. But sometimes the Ps are stinkers Problem with Amy Huges as a P: she had a great big knife, using it violently, hitting things with it.

A. Content/Form of Miranda warnings 1. Not talismanic a. Magic words not required 2. Rigid a. Requirement of warnings 3. Content/form a. Miranda or equivalent 4. Pieces a. RTRS b. Effect of waiver of RTRS c. RTC (before/during/after questioning) d. If indigent, appointed counsel

1. Discussion/explanation a. The "magic words" are those phrases that we have all heard. If you use them, you win. What if LE doesn't use these exact words: they may still win. b. Why would an officer, then, even deviate from the formula if the formula guarantees you a win: high stress, brain injury. In real world, sometimes officers can't or won't give the exact formula. c. SC says that the Miranda wording is not talismanic - aka, both are and are not magic words - can win even if you don't say the exact magic words. d. Officer needs to deliver Miranda warnings OR their equivalent. 1) No bonus for creativity here. Only have flexibility bc we recognize that LE encounters are high stress, won't penalize popo for getting a few words wrong, as long as officer manages to say the equivalent of Miranda e. What does officer need to say for sure: 1) Officer needs to convey suspect has RTRS. 2) Needs to convey the effect of waiving RTRS. 3) Needs to say RTC i. Sufficient to say: you have a right to an attorney. If officer ads anything else to this, officer has to make clear this right both before and after questioning. Either say you have right with no limits, OR make clear it's before and after. 4) Need to say that if you can't afford a lawyer, one will be appointed for you - right to indigent counsel at trial. 5) These are the four pieces officer must confer, via Miranda words or otherwise. a. Regularly on test, Hall gives some muddled version of Miranda.

A. Container Doctrine 1. Search of vehicle within PC a. Allows search of all containers in vehicle b. Scope: 1) With same level of particularity as warrant would allow 2) For those things constituting evidence of the underlying crime 3) Includes locked compartments and locked containers 4) Includes the trunk c. Contrast 1) SITA allows less invasive search 2) Inventory search allows probing search of containers 1. Discussion/explanation a. During the search of a vehicle, popo get to search all containers in the vehicle. 1) Hall thinks this is totally logical. 2) This includes locked containers. b. Pop ohave to have an explanation for why they're opening the container. 1) If looking for a rifle, can't open a little tiny toolbox. Evidence they're looking has to match the container they're opening. But if just looking for generalized evidence of, say, murder, can open every container - who knows where the bullet, shell casings are 2) Contrast this search to SITA: SITA less invasive. Ultimately, there'll be four possible searches of the vehicle: includes inventory search A. Scope of Container Search 1. Includes passenger belongings B. Problem 1. Common concern a. Possible manipulation 2. Other optinns for searching vehicle: a. SITA b. Vehicle doctrine c. Terry stop/frisk d. Inventory search

1. Discussion/explanation a. Think about container doctrine and suitcases. How can the popo manipulate, take advantage of this rule if they wanna search a suitcase: 1) wait for you to put the suitcase in your car (if you're just walking around with your suitcase, there is no doctrine that says the popo get to search it, even if have PC to think there's a body in it). But as soon as you put the suitcase in the car, the popo get to search the car. b. How can popo go wrong with this doctrine: 1) someone walking with suitcase, popo sweep in when you're two steps from your car. If they come too soon, they blow it. How might the smart thief manipulate this then: see blue lights, grab case and throw it on the ground. 2) This is a goofy bright line. c. Any way popo COULD search bag not in car? Maybe exigent circumstances - if they think you've got bombs in it, walking to your destination to detonate. 1) Absent exigent circumstances, though, don't get to stop you and search suitcase, esp if it's locked. If really think there's a body in there, can arrest you, get SITA. If locked, NEED A WARRANT. d. Why do we have the container doctrine: genesis of this doctrine is that if we're going to let popo search pursuant the vehicle doctrine, popo should get to search containers everywhere. e. Vehicle doctrine is car and everything in the car, INCLUDING people. 1) Includes passengers' and driver's belongings. Possible manipulation here: i. H is really the target, want something that's in H's backpack. Popo could wait til H calls an uber, and popo might know the driver has been giving drugs to passengers. Popo get to pull over the driver, have PC of drugs in the car, so they get to vehicle doctrine search the whole car, including containers in the car, that include H's backpack. Bootstrap a search about a passenger's belonging to vehicle doctrine search. So this is a very aggressive, broad doctrine.

a. Preemption and dilution: what triggers preemptive rights: 1) DGCL 102(b)(3) [The articles may contain] [s]uch provisions as may be desired granting to the holders of the stock of the corporation, or the holders of any class or series of a class thereof, the preemptive right to subscribe to any or all additional issues of stock of the corporation of any or all classes or series thereof, or to any securities of the corporation convertible into such stock. No stockholder shall have any preemptive right to subscribe to an additional issue of stock or to any security convertible into such stock unless, and except to the extent that, such right is expressly granted to such stockholder in the certificate of incorporation. 2) What preemptive rights are available: i. Section 6.30: (a) the shareholders of a corp don't have a preemptive right to acquire the corp's unissued shares except to the extent the articles of incorporation so provide. (b) a statement included in the articles of incorporation that "the corp elects to have preemptive rights" (or words of similar import) means that the following principles apply except to the extent the articles of incorporation expressly provide otherwise: (1) the shareholders of the corp have a preemptive right, granted on uniform terms and conditions prescribed by the board of directors to provide a fair and reasonable opportunity to exercise the right, to acquire proportional amounts of the corp's unissued shares upon the decision of the board of directors to issue them. (2) A shareholder may waive his preemptive right. A waiver evidenced by a writing is irrevocable even though it's not supported by consideration. ii. (3) there is no preemptive right with respect to: (i) shares issues as compensation to directors, officers, agents, or employees of the corp, its subsidiaries or affiliates: (ii) shares issued to satisfy conversion or option rights created to provide compensation to directors, officers, agents, or employees of the corp, its subsidiaries or affiliates; (iii) shares authorized in articles of incorporation that are issued within six months from the effective date of incorporation; (iv) shares sold otherwise than for money b. Ex, how much stock do you get to buy: 1) Corp has 1000 shares of stock outstanding. You own 450, I own 550. The corp's charter provides for preemptive rights. The corp is planning the following: (1) issuing 200 shares of common stock to an investor in exchange for case. (2) issuing 300 shares of common stock to me in exchange for intellectual property I developed. (3) issuing a promissory note to a lender in exchange for cash. The note is convertible into 100 shares of common stock. (4) Issuing 100 shares of stock to me in exchange for serving as a director. (5) issuing a consultant options to purchase 100 shares of common stock for cash in exchange for consulting services provided to corp. i. You can buy: 1: 90. 2: no rights. 3: note convertible into 45 shares. 4: no rights

1. Dissolution a. MBCA 14.30: Grounds for Dissolution (a) The court may dissolve a corporation: (2) In a proceeding by a shareholder if it is established that: (ii) the directors or those in control of the corporation have acted, are acting, or will act in a manner that is illegal, oppressive, or fraudulent b. Note: director position on a Board affords stronger inspection rights c. Balvic 1) Closely held corp factors: i. A small number of stockholders ii. Stockholder well-acquainted, live near each other; iii. No established market for the corp stock; iv. Stockholders active in management of business 2) Dissolution is what we want to avoid. We avoid it by having exit provisions like right of first refusal, right of first offer. 3) Note: interest, ownership in a co cannot be tied to their employment. You gotta think of what will happen if they're fired. Corp doesn't think of shareholders as employees. If that person is no longer doing a good job, corp wants to get rid of them. 4) If small corp, esp want a k. have a provision that says what happens if the person stops working for you. Say also what happens if emp isn't doing a good job, or corp just wants to squeeze them out. 5) You have to show oppression to resolve a conflict. Which is why you want to plan divorce at the time of the wedding. 6) In dissolution, you have a ct deciding what the value of the corp is. Never want that. Want to avoid that. Don't want one party holding a gun to the other, forcing dissolution. 7) Exit strategy: lays out what you will get for your shares if you want out. 8) Ex: partnership. Default rule for a partnership as to voting: everything 50/50 unless you write down something that says otherwise. If you convert to a corp: the person who has put in less money has lost a lot of control. In this situation: conflict starts once you allow the money man to switch to the corp form. Built-in tension between equity man and man doing the actual work. Cause conflict between them, if switch to corp, unless have an exit strategy. Ideally, in this case you would also want a cumulative voting protection. Also want to make sure that that protection couldn't be changed by more than a 70% of a vote. Aka, need two-step process for cumulative voting. 9) Minority guy, Bolvik, is fired. Then eventually he's kicked off the board. 10) Default situation: corp stops paying dividends bc equity people want to keep the money in the business. Want to squeeze you out, not giving dividends anymore, now they offer to buy your shares. 11) Another common story: Balvik has the job that equity man wants to give to his child. 12) If you have an exit strategy, just sell your shares. 13) Another factor that might be considered in dilution: the person left their earlier job in reliance of their corp job b. Expectations: i. Quit job to join Weldon Electrinc ii. Primary/sole source of income iii. Fired (?), removed as director and officer d. Dissolution? i. The court found that ordering dissolution was an abuse of discretion and ordered a buy-out at fair value instead. If the majority would be worse off with dissolution, will it actually happen? Answer = Nobel Prize. Parties will negotiate around the rule. ii. MBCA 14.34: Election to Purchase in Lieu of Dissolution. (d) If the parties are unable to reach an agreement as provided for in subsection c, the court, upon application of any party, shall stay the section 14.30(a)(2) proceedings and determine the fair value of the petitioner's shares. (e) Upon determining the fair value of the shares, the court shall enter an order directing the purchase upon such terms and conditions as the court deems appropriate e. Buy-outs 1) How do we avoid conflict leading to litigation and possible dissolution: plan the divorce at the time of the wedding

A. In-class notes on preemptive rights 1. Minority shareholder protection: 1) cumulative voting 2) voting trust/agreement (Donahue case is a nice illustration of how you could use that to resolve disputes. Note that a voting trust typically has a lifespan - a big disadvantage of it is that it'll expire) 3) preemption rights (intended to let the minority keep their relative position) 2. The ex shareholders' agreement shows what kids in Donahue case could've done. 3. Ringling v. Ringling Bros. 1) Widows put their votes together, voted on another person. Aubrey breaks ranks; they have a provision in the agreement that says they have to agree on five candidates; another provisions says if they don't agree, a third party will be arbitrator, arbitrator will pick the five. Arbitrator votes for the five: two Edith wants, two Aubrey wants, person who will vote in their interest. 2) Aubrey argues she's going to vote how she wants; whole argument is about if you can specifically enforce shareholders' agreement, and this ct says you can. 4. Preemptive right: a proportionate promise that the shares you have you will keep as the same proportion as before. When stock is issued, shareholders have the right to purchase the number of newly issued shares necessary to maintina their current ownership percentage. 5. Delaware provision for preemptive right: DGCL 102(b). has to be put in the articles of incorporation. There is no preemptive right unless there is something in the articles. 6. When shares are normally issued, there will be ownership dilution unless there's a preemptive right, A and B buy shares that maintain their current 70%, 30% split. But if you issue a single share to someone else, there's ownership dilution. Eco dilution, remember, only occurs if the price is wrong. 7. What would happen in ex if B exercises preemptive rights to not be economically or ownership diluted, how many shares would he be entitled to buy? The same percentage that he owns of the currently outstanding shares. He owns 30 percent of million, get to buy 30 percent of the new shares issued.

1. Eco dilution: what if we sell at 10 cents a share. Without preemptive rights - C is going to buy in, loss. With preemptive rights: A might be trying to self-deal, give himself a bunch of ne shares at a lower price; B exercises rightsto also buy stock; the one that he gains will be the act same that the A's shares are diluted by. Aka, B takes a hit, but can cash in on low price and break even, even though economically diluted. Aka, bc of preemptive right, everybody will end up right back where they were. 2. Minority shareholder protections 3. With preemption, when it works: all that's changed is that there's more money in the pot, so to speak. 4. Way to get around preemptive rights: just buy enough shares that you know the minority sharhholder can't buy enough, even with preemption, to keep their share. 5. Section 6.30, ex on slides: this is an opt-in provision for preemptive rights. 6. Ex: which triggers preemptive fitghts: investor only gets 110; you get to buy 90. 7. B (from which triggers preemptive rights ex): no rights. 8. C: promissory note is NOT stock. convertible notes, though, is a v common thing - means you have a note you can convert into shares. Convertible stock in turn, is stock you can convert into a note. Shares, then, are not definitively being issued. Do you have a preemptive right, though? Can go either way. If do have rights: person only has a note for 55 shares. Have to wait, though, til the stocks are actually issued. You would, under default rules, get a note convertible into 45 shares. 9. D: no preemptive right 10. E: provided consulting services, now has an option to buy stock in cash. Question would be whether a consultant is an agent (under rule 3(i)). What may also apply: iv, ii. If it's something that can be turned into shares being issued to you, then your preemptive right will be in respect to that 'something.' Look at what is being give up for that something. So E is vague - there may be no rights, OR an option to buy 45. 11. Inspection rights 12. Another minority shareholder protection 13. MBCA gives the docs you're supposed to create. Those docs, once created, are accessible by an access request by a shareholder. 14. In LLCs, shareholders have basically the same right to inspect these docs. 15. Sharholders' Agreement ex: Beckman can hire his own accountant to audit, certify docs. The solution often is that you each get an accountant, and then they choose a third accountant, and then the three of them will do the audit.

I. High tech surveillance, dog sniff, misplaced confidence, third party search A. High Tech Surveillance 1. Surveillance of home a. Exterior surveillance permitted b. Surveillance of interior 1) Equivalent of an intrusion 2) Not permitted 3) Factors: i. Extent of info about interior ii. Use of device not generally used by public 2. General rule for high tech?

1. Explanation a. Basic thought for high tech surveillance: surveillance of the exterior of a home is permitted. Not worried about use of high tech devices when talking about exterior of home. Why? No expectation of privacy in regards to the exterior of your house. BUT SC says we are worried about surveillance of the interior of your house. When are you allowed to get info about the interior of your house? When they can see inside from a lawful vantage point. Alt, without a warrant, exigent circumstances, can't use high tech on interior of house. b. If surveillance is producing info about the interior, will ask two questions: 1) extent of info; 2) was there use of a device not generally used by the public. In Kylo, popo used thermal imaging. Thermal imaging shows you stuff inside. c. In Kylo, used thermal imaging to find grow lights for marijuana. In Kylo, all they could see was the external temp of the house. d. Why does thermal imaging of Kylo see unusual: the house was hotter than other houses. e. Hall doesn't know why in Kylo SC came up with new rule - they were looking at info that you could see, perceive from outside the house. But their logic might more sense for future devices, if we have a future device that reveals info about the interior, that's an intrusion - BUT if it reveals very little info, in general public use, maybe it's not an intrusion. If device is in widespread use by public, reveals little interior info, it's hard for a person to argue that they ahd a reasonable expectation of privacy. Popo are just doing something that many members of the public are doing. f. That's weird. Seems like gov is saying you can get interior info, as long as there's only a little bit of info, the machine is in public use. g. SC would've done better if said that interior is a no go unless lawful vantage point, exterior info ok. h. Why is the ct struggling here, what phenomenon do we have in society that is forcing the ct to grapple with these issues: the growth of consumer electronic tech that is increasingly allowing average people to know what's going on in your house. That's hard bc the doctrine rests on what normal people are doing. i. In short: ct hasn't figured out a good rule yet. j. General rule for high tech: could we expand this rule from thermal imaging to other areas? 1) Ex: drones. Everybody could get one, including the popo. Another ex: night vision cameras. Basically everybody can use that tech now, there are even apps. k. In short: if gov is conducting exterior surveillance: no test, bc there's no search. With the interior: our normal thought is that if gov is looking inside through an open window, that's fair game - don't have reasonable expectation of privacy. 1) If the gov gains info about interior using tech, that also might not be a search, as long as info they gain is minor, use tech only in general public use (bc don't have reasonable expectation of privacy) l. What other info could popo get about interior of house if worried about a grow operation: electric bill (for grow lights) - fair game bc third party info. m. This rule will 100% be on the exam

I. Curtilage and Aerial surveillance A. Curtilage 1. Area immediately surrounding home and associated with the home 2. Area of intimate activity associated with the home 3. Area in which reasonable expectation of privacy exists 4. Dunn factors for curtilage a. Proximity to house b. Within an enclosure surrounding the house c. Nature of the use of the area d. Steps taken to protect the area from observation

1. Explanation a. Curtilage: area right around your house that's closely associated with the home and in which you are doing stuff that's just like the intimate activity you do inside the home. Same kind of activity there that goes on inside, that you have a reasonable expectation of privacy in the curtilage b. Exs of curtilage: outside shower; sleeping portch - pre air conditioning, southern houses had a porch where people slept - visible to yard, so officer could inspect, but probably couldn't step foot on it. What about pool house? It's a separate house. Guest house is a separate house. They're not curtilage, just separate house altogether. Only if it wasn't a separate house would you go to curtilage. Anywhere you're changing clothes, good argument it's curtilage or separate house c. Curtilage factors: proximity/the more associated it is with the house; is it within an enclosure that connects to the house - part of house structurally d. nature of use of the area - getting naked in a space, sleeping in a space (what about eating a meal? Probably not); steps taken to protect the area from observation - might have screened in an outdoor shower. e. What if you've bricked in your backyard, put an arbor over it: feels more like a room. Don't have a perfect argument that's curtilage, but have a really good argument that it is.

I. Introduction to Search Warrants A. Warrant requirement? 1. Warrant preference 2. Search with warrant is generally valid B. Search without a warrant? 1. Many warrant exceptions 2. OR, law enforcement can argue "not a search." C. Procedures for obtaining a warrant 1. Neutral and detached magistrate 2. Oath or affirmation 3. Probable cause a. Crime committed and evidence at premises/on person 4. Particularity a. Search b. Seizure of evidence c. Description sufficient to reasonably allow identification of premises/person/things 1) Rigorous regarding premises (except for good faith mistakes); less rigor regarding things (except from stolen property) i. What's a good faith mistake we might have about placements: might ask for a warrant to search the fourth floor, and you think there's just one fourth floor, but there's a 4A and 4B. normally we're otherwise expecting rigor when discussing premises - premises don't move, so popo should be able to identify them with some level of detail. D. Search of persons in premises 1. YES, if named in warrant. a. Note: sometimes warrant names "all persons in premises." 2. NO: warrant does not generally allow search of persons not named a. Factors that might allow search: 1) Private location (vs. public) 2) Strong inference of involvement in crime

1. Explanation a. Does search warrant confer authority to search people on the premises? Yes and no. yes if they are named in the warrant. Weird situation: are popo allowed to name 'all people on the premises?' might do this if searching, say, a bar. In some cases, this is ok. Might know that the bar is a hangout for a particular crime group or gang, know that most everybody at the bar is participating in crime. If we have a crack house, popo allowed to do this. That's why everybody is there. If a bar is known for drug selling, might be able to do this - question then would be is everybody really involved in this. b. No: absent something on the warrant, warrant doesn't automatically confer authority to search a person. BUT ct says that there are factors that, even if people aren't named, search of persons might be allowed. Look at whether there's an inference of being involved in crime when popo show up. Ex: warrant for search of a bar for drug dealing, doesn't name people, but there are three people, one of them has a wad of money, other person is reaching for something, other person is watching intently. Based on those ad hoc circumstances, can search. Another ex: go to house, search for weapons, find weapons under sofa where people are sitting. There, there's both a strong inference of involvement in crime, AND because it's a private location, there's an inference that the people there is involved in that activity. c. Private location helps popo argue for a search of the people. General rule is that popo can't search people, but if they show up and it's private property, and can argue that there's a strong inference of involvement of crime, can argue they can search. Both factors may allow them to search. d. Popo can have a warrant to search some part of house, but exigent circumstances allow for a search without a warrant - if there are those circumstances, might be able to search another part of the house

I. Plain View and Curtilage and "Open Fields" A. Plain View 1. Plain View - the concept a. No reasonable expectation of privacy with regard to activity/things in plain view 1) Key = lawful vantage point i. No intrusion by LE 2) Physical touching = intrusion b. Expansion: plain ____ 1) View 2) Hearing 3) Smell 4) Touch c. Arizona v. Hicks 1) Officer Nelson investigating a shooting; moved turntable to record serial number. 2. Plain View - the doctrine a. Washington v. Chrisman b. Seizure of object without warrant 1) Observed from lawful vantage point 2) Right of physical access 3) Nature as an object subject to seizure is immediately apparent i. Contraband, fruit or instrumentality of crime or evidence ii. Probable cause c. U. S. v. Jacobsen 1) Testing of contents of opened package at FedEx facility i. Lawful vantage point § Third party ii. Right of access: reasonableness iii. Immediately apparent as contraband: testing allowed Allowed: trace seizure for reliable field testing

1. Explanation a. Gonna talk about the plain view concept. Then will talk about a narrow doctrine called the plain view doctrine. Diff: plain view concept is just the idea that if popo see evidence, standing at a lawful vantage point, that's fair game. 1) The doctrine: is a v specific doctrine not about seeing, smelling - about LE's authority to go and seize a piece of evidence. b. Open fields concept: your back yard, however much you think of it as a private space, probably isn't. popo can look at it, doesn't even constitute a search c. "Plain View" generally: this is the idea we have that if popo are standing in lawful vantage point, see something, not committing a search, have no reasonable expectation of privacy. 1) No reasonable expectation of privacy with regard to activity/things in plain view. 2) Popo HAVE to make these observations from a lawful vantage point - either accessible to public, or otherwise where popo have authority to be. 3) Key here: you may have a reasonable expectation of privacy in you kitchen, but if popo is standing on sidewalk and see you there kill somebody, that's valid evidence. 4) Inside of your house can be a lawful vantage pt if popo have a legit reason to be there 5) What we're asking is if popo committed an intrusion by getting to that vantage pt 6) Ignoring no trespassing signs doesn't render a position unlawful. If popo are investigating a crime, thinks there's evidence of your house, is he allowed to come knock on your door: yeah. Can't put up a sign to keep popo out of your house when they're doing their job. 7) If popo thinks evidence is on your lawn: allowed to walk in your yard, pick it up. Not considered an intrusion - legit reason to be there. 8) Intrusion: something beyond the normal authority of the officer. 9) Arizona v. Hicks: officer is legit on the premises. Then officer moves the stereo component just a little bit. Key thought is that here's a weird place where SC has drawn a bright line rule. Plain view does NOT allow popo to move things around to get a better view, even if, say, have a legit reason to be in your house.

A. Property Analysis 1. 4th amendment protects property: a. United States v. Jones b. "Search" occurs when law enforcement intrudes onto property 1) Trespass? 2) If serious, many cases undermined 3) Possible reconciliation: i. Permanent physical invasion § Loretto v. Teleprompter

1. Explanation a. Property analysis: comes from U.S. v. Jones - popo put a tracking device on suspect's car. Core issue is GPS tracking. SC said shouldn't have put the device on the car, but they were coming up with a way to say the gov acted unconst, and just couldn't reach a consensus yet on the GPS tech. 1) Says that the installation of the tracking device was a property right violation. This is the only SC case we have that does this. 2) The intrusion the popo commit here is not temporary. The intrusion is a permanent installation of a popo thing on the car. Was a "taking" of property. 3) Do NOT extend Jones to situations where the popo step onto somebody's property. b. Our thought should be: If you're defending someone, raise a property claim - you don't know, SC might take it up and say that we're going to extend Jones. c. In short: Not a lot to say here. Ct just says that it was a trespass. Hall says that trying to explain this, just say 'permanent physical occupation.' 1) If you're doing a 4th amendment claim, then, 99.9 percent of the time you're argument is going to be to do a privacy analysis. BUT if there is the possibility of a property claim, throw that in. A. Reflection 1. Dual analysis: a. Privacy b. Property

I. Introduction to Search, Privacy, Property A. 4th Amendment 1. "persons, houses, papers, and effects." 2. "unreasonable searches" 3. Explanation a. Fourth amend says persons, houses, papers, and effects are protected from unreasonable searches. From this lang, can kinda see why we'd want to talk about property rights - this lang seems to be referring to rela and personal property. 1) Why are we talking about privacy rights: all these are things that would be private, esp 'persons.' - note that you don't have property rights in your person, so it only really makes sense to characterize this as a privacy right 2) Currently, privacy analysis is 99.9% of what we do - property analysis is very very small B. Privacy Analysis 1. 4th amendment protects persons, not places a. Katz v. United States b. "Search" occurs only if law enforcement examines a place/thing in which a person possesses a reasonable expectation of privacy 1) Subjective/actual expectation of privacy i. Problem? 2) Objectively reasonable i. Openness/exposure to public § Sharing with public or third party = assumption of risk ii. Intrusiveness § Did law enforcement place itself in the position of the public? 2. NOTE: you ONLY have privacy rights in respect to the popo, NOT third parties. A third party can spy on you, have cameras in the bathroom, and then later give that evidence to popo, and popo can use it.

1. Explanation a. SC over and over again says the 4th amendment protects people, not places. That concept helps us understand why privacy analyses dominate. SC announced this concept in the Katz case. b. Katz does something that is both really logical and semantically weird. The rule from Katz: you have privacy rights only in a place where you have a reasonable expectation of privacy. That rule is so easy it almost seems circular. Privacy only at a time, placement where you have a reasonable expectation of privacy. A "search" occurs only where you have a reasonable expectation of privacy c. SC says we don't have a search unless popo are looking in this place. But that's not how lay people say search. SC should've said there's CONST CONCERNS only where popo go poke around in the place, time where you have a reasonable expectation of privacy. That makes more sense, semantically. d. According to SC, no search/your const rights are not implicated unless popo examines a place/thing in which you have a reasonable expectation of privacy. e. Where do you have a reasonable expectation of privacy: bathroom, bedroom (debatable - the issue there is whether your bedroom is open or not, do you have curtains or blinds, are those blinds/curtains open). If you change in front of a window, you're giving away your privacy rights. Living room: same thing - is it open to private view - don't have private rights there just bc it's your living room, has to be protected from public view. Do you have privacy on your phone calls: no, people can hear you if you're in public. f. Social media is generally NOT private. If you have discussions on public forums, that's not private. g. For you to have a 4th amend claim, you need to have acted in such a way to protect your privacy. If you're doing your neighbors can see, if person at grocery store can hear, you're effectively giving away that info to the police - you share it with them, you give away your privacy rights, doesn't matter if the neighbors are actually watching you. Even if somebody isn't outside your widow watching you, doesn't matter, bc somebody COULD be there. h. Two pieces of this: 1) need to have a subjective expectation of privacy that is objectively reasonable (might have expectation in your bedroom, but if window is open, not objectively reasonable). Where we run into problems: when one of these two pieces isn't req. 2) objectively reasonable - if you're doing something that's open or exposed to public, lose ur expectation of privacy. Also lose it if you shre with third party. If you share info with the bank, too bad, you've shared it. Bank record isn't private. i. Also have to consider if popo did something intrusive - if popo are standing in a place where the public could stand, they have no intruded. If popo are in your neighbor's attic looking out an attic window - no, bc that's where your neighbor can see from. Ex of intrusive: creep into bushes next to your house, bc then act like a peeping tom j. Remember, if you say popo have committed a search, can argue privacy or property k. Privacy: popo examined a place or thing where you ahd a reasonable expectation of privacy.

I. Search Incident to Arrest and Vehicle Issues A. Search Incident to Arrest 1. Law enforcement may conduct a search at the time of an arrest a. Formal arrest 2. Contemporaneous a. Wiggle room 3. Scope a. Person b. Area within immediate control c. Accessible containers d. Inspect immediately adjoining area e. Limited to places where suspect could hide weapons or evidence 4. Logic a. Safety b. Evidence c. BUT: no need for particularized showing 1) Per se/bright line rule i. Arrest entitles law enforcement to search of: person and area

1. Explanation a. The doctrine is really simple: any time the popo arrest someone, the popo get a free search. If popo commit a formal arrest (not allowed for de facto arrest), get a free search. People call this a per se rule - means can't do whole thing for free; if you have PC to arrest and you decide to arrest, then you get a free search. Don't need any additional cause for this search; all popo needs is pc to arrest, decision to arrest; have pc to arrest or good faith to arrest, get a free search. Search is free upon a pc arrest. b. Upon an arrest, officer needs no additional suspicion to do a search c. This rule is simple but problematic: simple - if popo have pc to arrest, go ahead and arrest, get a free search without any additional suspicion. Really close to being bright line. Problematic - this rule creates a possibly perverse incentive to arrest everybody just to search. Aka there's this huge windfall from going ahead and arresting people. Tehre's a lot of situations where popo might have pc and are debating whether to arrest, bc crime really isn't that serious. This rule creates enormous incentive for officers to go ahead and arrest, bc then they get this free search. Instead of officer acting on their individual assessment, our thought would be that it's better for him to get a warrant. Say popo's real concern is something serious like kidnpapping, but has pc for a misdemeanor that allows for arrest, then gets to make an arrest in order to investigate this larger crime through a search. d. What does officer get to search: the person of the arrestee AND the area within the immediate control of the arrestee, any accessible containers in that area, and officer gets to inspect immediately adjoining areas. e. Gets to search these places, anywhere where suspect could hide weapons. Medium-level of intrusive search. What perverse incentive does THIS create: officer can come to door, say's it's popo, may I come in and talk, officer gets in living room, asks to be moved to a different room; gaining consent for each of these things, manipulate the situation to get to the place in the house where they want to search. This rule opens the door for officers to do that. No req that officers execute the warrant on the front porch, hallway, first room they come to - don't have to pull out warrant unless denied entry to the house. Don't have to do arrest right away. And we don't want 4th amendment rules telling them how to sequence an investigation. f. Scope of the search in regards to the arrestee/person: clothing search, more than a patdown; everything but a strip search. That may seem really dramatic, but what will happen twenty minutes later: they're going to get booked, they're going to be searched again upon booking. So not really that weird. Our presumption is that somebody arrested will be put into custody. g. Scope of area within immediate control: depends on the room the person is in. if you arrest in your office, whole office. If arrest in a restaurant: booth or table you're at. Say you have a huge living room - the area in your immediate control isn't the whole room, maybe just the 10-15 ft area around you. h. Accessible containers: backpack, briefcase, shopping bags, drawer of your desk, drawers of cabinet near you. Popo can look in "closed things," open all of them. Just only containers within immediate control. A locked drawer or closet: nope. But unlocked things: yes. i. Immediately adjoining area: popo can ONLY inspect. They can open a closet, but they are allowed to inspect it. Aka, just allowed to see if somebody is hiding in it. What else: they get to look down hallways, into other rooms. Logic: don't want a hidden assailant attacking popo. But popo don't actually have to be worried about assailants to look around. Defining 'adjoining area' is difficult; might not get to open all the doors down that hall, though, if they're farther away. It'll depend on the shape and size of the place, how far away from the arrestee the door is, how many corners we had to turn to get to the door, whether the place is private or public - if in a public place, get to inspect less. j. Recap 1) SITA is a per se doctrine: if popo have PC to do a formal arrest, they get to do a free search. Why are we requiring popo to make formal arrest: we're afraid if popo are engaged in an informal arrest, it might push them to make an arrest when they wouldn't otherwise. 2) How big of a search is this: surprisingly big, is a medium invasive search of arrestee, area in their immediate control, accessible containers, immediately adjoining area, limited to places where suspect could hide weapons or evidence. 3) Contemporaneous: after popo say you're under arrest, SITA needs to happen a reasonable amount of time after the arrest. Popo can't wait twelve hours or a day and then claim then they'll do SITA. Logical sequence: arrest, SITA, transportation to station and booking 4) The idea is that we're doing this for popo's safety. 5) Might popo want to do search before arrest, in some situations? Yeah. The rule is: if we're confident the popo are making a formal arrest, they could do SITA moments before they say you're under arrest. How could we be confident they're doing a formal arrest: if they have the arrest warrant in their pocket. 6) If we are confident popo is about to make a formal arrest, maybe it's permissible to do SITA first (just by a little bit) 7) The theory behind SITA primary reasons for it: officers' safety, public safety, preservation of evidence. BUT: the popo do not need to articulate these. So, in practice, don't actually need to have these. So this is one of the few rules we have that is a bright line, per se rule. No need for particularized shoing to do SITA. What's broken about this rule: SC is giving a justification that's actually present in only a fraction of the cases where the ct has authorized the search. 8) Aka, in any case you're investigating, even if it's a cold case, a boring case, you get to search an arrestee 9) No connection between suspicion, what we're letting popo do

I. Electronic Surveillance A. Structure for analysis 1. Amendment Protects Persons Not Places 2. "Search" Occurs Only If Law Enforcement Examines a Place/Thing in Which a Person Possesses a Reasonable Expectation of Privacy 3. We're asking does electronic surveillance constitute a search. SC regularly says 4th amend protects people, not places - so we can have a search, no matter where it takes place, if we have a person that is potential having their rights affected. Analyze things based on this: have a search if popo look at a place, thing, moment, where a person has a reasonable expectation of privacy. B. Two prongs 1. Subjective/actual expectation of privacy 2. Objectively reasonable a. Openness/exposure to public 1) Public = "hypothetical public" (aka, any place someone else could be located) 2) Intrusiveness 3) Lawful vantage point 4) Position of possible public b. Sharing with a third party = assumption of risk

1. Explanation a. There are two prongs to the reasonable expectation of privacy: subjective and objective/actual expectation of privacy. Remember that people almost always have a subjective expectation of privacy (exception: someone who is not neurotypical). b. So if you do something in the open, that's exposed to the public, you do not have an expectation of privacy. c. "exposure to the public:" don't require the public to actually been there. The fac that you might be out walking at night, think you're alone, might mean that you only have subjective expectation, certainly not the objective, because what you are doing is exposed to the public. We don't care if anyone is actually watching you or not. So we really mean the "hypothetical public." If there could be someone watching you, then you are not doing anything private. d. What we WILL analyze is the reasonableness/intrusiveness of the police's observation. Not intrusive if a member of the public could have been standing there. As long as make observation from a lawful vantage point where a hypothetical member of the public could be, popo will win. e. Anytime you share info with a share party, you have assumed the risk that that third party will share info with the police. You may think it's in confidence, but if they tell popo, you lose. If someone breaks into your house, finds your drug stash, tells popo, you lose. You have privacy expectation only in regards to the feds, not third parties. f. If popo are monitoring your mail, and they're not cutting it open and reading it, just reading what's on fae of envelope, that's not a privacy violation - non law enforcement gov employees see that info. That's not private info. If you dial a phone number on your phone, you do NOT have privacy in terms of the number dialed. Reason why: 70 years ago, the operator would've known who you called. Later, you would've gotten a bill that stated all the number you called. But your phone provider is retaining all that info; the fact that you're sharing that info with them means its third party sharing. Same thing with numbers you text. The content of the text is private, but not who you texted. g. Pen register: old fashioned device that monitors phone numbers dialed. The numbers you call or text are not private. Logic is that you share this with your phone provider. Ct says the same thing about bank records. Can just ask bank for that info, bc you've already shared that info with the bank.

A. Custody POV (for Miranda) 1. Totality of circumstances 2. Reasonable person in suspect's position a. Not subjective view LE

1. Explanation/discussion a. Ct says we're going to analyze this question of whether suspect is in custody from the POV of the suspect, NOT LE. 1) Hall doesn't know about this - this sounds like it may be a suspect-friendly rule. Hall thinks we could have situations where suspect doesn't know they're in custody, but officers do, officers know they're skirting the line. The test gives officers incentive to do this - if suspect isn't in custody, don't have to Mirandize. Incentive to scare suspect enough to talk, but not so much that they think they're in custody. Hall thinks we could have two ways of thinking about custody, say from POV of both suspect and officers. b. The fact that the officers know they might be initiating custody doesn't matter - only matters if a reasonable person in the suspect's position would think they are in custody. Leaves door open to custody of police. Weirdly both objective/subjective test: reasonable person in the suspect's shoes. c. How might the suspect think something and a reasonable person not: if a suspect is stressed out, anxious - might interpret things in the worst possible light. 1) But: We look at this from the perspective of a totally calm, rational person, who knows all the facts the suspect does

A. Custodial interrogation 1. Under formal arrest OR in custody at station (or equivalent) OR otherwise deprived, by LE, of freedom in significant manner. a. Factors: 1) Length of detention 2) Location 3) Movement/control of suspect vs. voluntariness 4) Intrusiveness/force of restraint b. Difficulty: 1) On-the-street/in-the-field encounters c. Distinguish: 1) Intimidating aspects of any LE questioning 2) Vs. custody

1. Explanation/discussion a. Custodial interrogation: this is the same test for de facto arrest we've previously covered b. Can have custodial interrogation under formal arrest OR if we have suspect in custody at the stationhouse (or equivalent; or otherwise deprived of freedom in a significant manner). 1) Terry seizure, note is not an arrest - Terry is brief. Our thought is that an arrest is a longer detention. In general, we think that twenty min is brief, counts as Terry. 2) We COULD have a longer interrogation that's Terry; twenty is just our default thought. Hall thinks that around an arrest is probably a default arrest. 3) Another factor: where is this taking place. Sidewalk = suggests no arrest. Suggests arrest = closed room, bc suspect is confined. If suspect feels free to leave, suggests it's not detention or arrest. If in suspect's house: leans more towards not an arrest. 4) Next factor: movement or control of the suspect. Movement = LE ordering suspect to move. Could occur even in Terry stop. The basic thought is that if LE moves the suspect a significant distance, that suggests an arrest. Like if put suspect in a car, drive somewhere, that strongly suggests an arrest. What's the alternative: LE says we can talk here on the street, or in the station, which would you like to do. That gives the suspect the option for voluntariness. 5) Another factor: amount of force LE is using. Focus on the level of intrusiveness. In general, handcuffs pushing in favor of an arrest. Note if officers have their gun drawn. Aka, can include threat of force. Officer's hand on the suspect constitutes a show of force. 6) Anything else also counts. Factors are NOT exhaustive, but should be paying attention to them. c. Can you win a de facto arrest argument with just one factor: yeah, just depends how much evidence you have in favor of that factor. d. Which factor probably helps popo the most: voluntariness, bc that helps LE; length of time also helps. e. Which factors help suspect the most: location, use of force. f. Where this most often comes up: anything at stationhouse looks like custody. We have location argument most often with sidewalks, parking lots, store, maybe in suspects' homes. Distinguish between any situation in which LE is interrogating suspect and a custodial interrogation. Miranda only applies when we have custodial interrogation. If we don't have custody, doesn't matter if we have aggressive questioning, maybe even coercive questioning.

A. Aerial surveillance 1. Aerial surveillance doesn't abridge reasonable expectation of privacy if: a. Reasonable b. Undertaken from navigable airspace c. Conducted in physically non-intrusive manner d. Even if observation within what would otherwise be the curtilage!!! 1) Limits? e. Remember: limits on high tech surveillance

1. If we're doing aerial surveillance of an area not within the curtilage: probably a win for police. It's an open field. No reasonable expectation of privacy, so yes, popo can do surveillance. Might be a problem if high tech, but that's only a problem when they're training it on your house. So here's our thought: aerial surveillance only a problem when looking into an area that would otherwise be curtilage. 2. Note that factors for aerial surveillance ONLY apply when looking into an area that would otherwise be curtilage. 3. Limits: popo can't use ihigh tech to look inside your home. If popo are doing this and obtaining info of you, say, nude sunbathing, but saw tattoos that connect you to a crime, still don't know if we'll let popo win. 4. We can do aerial surveillance, with limits, even if looking inside curtilage. 5. Remember: as long as normal aerial surveillance, from plane or helicopter flying at a normal altitude, we're good. If flying below navigable airspace, airspace where it's legal for aircraft to fly, popo are effectively in a lawful vantage point. 6. Non-intrusive manner: if popo are using a drone, flying intrusive locations, court is suggesting then that the suspect will have an argument that popo committed surveillance from a non-lawful vantage point. 7. If doing normal aerial surveillance, doesn't matter if making observatios - could make those same observations from the ground. 8. Could have something that's sometimes curtilage, sometimes not: ex, you have a courtyard in your backyard surrounded by concrete walls. On foot, that's curtilage. But if we have an aerial flight over that courtyard, routine photos taken of that courtyard, that courtyard might be fair game. 9. Hall would rather the court saying just we do or don't always have an open field. Remember the Dunn factors

A. Third party consent 1. Consent by non-suspect a. Person having common authority 1) Burden of proof is on law enforcement 2) Consenting person must have authority 3) OR law enforcement must reasonably believe consenting person has authority i. Apparent authority

1. Explanation/discussion a. Does babysitter have authority to let popo search? Yes. That's why you have to be really careful who you leave over your house. Sitter probably doesn't have authority over all reas of house - but can probably tell popo they can search living room, kitchen. 1) Consider: a one-time babysitter has way less authority than a nanny there every day. b. Shift, what if it's your mom that's visiting: 1) She has a whole lot of authority. She's a close relative, popo are allowed to assume she has authority to let them in a lot of places - maybe not the safe, a locked study, but she has a lot of significant authority over the house. c. Does your housemate have authority over the house? 1) Yeah, but not all of it - common areas, their bedroom, NOT your bedroom. 2) What might change that thinking, let the housemate think you have authority over your bedroom: if you're gone for a really long time, housemate has been cleaning your bedroom - then they have authority to come into your room. Housemate might also be going in to feed your goldfish; borrow clothes. d. Popo just have to prove the person had authority, some level of it, over your house. 1) Presumably your spouse has complete authority over the house. 2) OR: popo must reasonably believe that the person answering the door has authority - if an old person answers the door says oh my yes come in, they may reasonably believe that person is a relative. 3) This rule creates an incentive for popo to not ask the third party how they're related to the suspect. 4) How else would we know someone has significant authority over your house: you've given them a key.

A. Expansiveness of consent search 1. Ending consent: retraction can happen at any time 2. Scope, time, intrusiveness: a. As reasonable b. Measured based upon the consent that was given

1. Explanation/discussion a. If you give consent, can you take it away: yes, you can withdraw consent at any time, for no reason. 1) Don't know if that's realistic, though. b. Where do we have trouble: say you let popo search, they start pulling up upholstery. That'd be ok with a warrant. You don't want that done in a consent search. 1) So how do we measure time, scope, intrusiveness of a consent search: SC says we're just going to lok at words of consent, see what's reasonable. 2) If you tell them they can search for a minute, an hour later they're still searching. Logically, they probably just had a few minutes. 3) Even if you said sure, have at it: don't mean that you get to rip up your car. Suspect just means do some reasonable search of my car. 4) Logically, we need a tighter standard. People too often say random or vague things to popo.

A. Issues 1. Scope of authority a. Spouses vs. house-mates 2. Two people present a. One consents, one refuses: 1) Refusal wins b. Problems 1) Isolation/movement of refuser to prevent refusal - this invalidates consent 2) Vs. sequence of investigation

1. Explanation/discussion a. Spouses generally have authority over whole house. House mates only have authority over common areas, their area. For house mates, popo probably need to ask if they ever go in your room. Popo then might need to ask to go in. b. What if we have two people present, one who says yes, one who says no: 1) Refusal wins. 2) Problem: if one spouse is really relaxed, one is wound tight, popo are allowed to talk to the relaxed one and just not talk to the agitated one, provided that there is no manipulation. 3) Good popo could sequence the investigation so as to only get the consent, not the refusal. As long as popo avoid intentional manipulation, they might be ok. 4) If suspects have any evidence of intentional manipulation, that popo normally wouldn't have separated people, might be able to win. 5) BUT: if popo have legit consent, search, and then get refusal from another rperson, that search is valid. 6) What if popo know that one spouse is tightly wound, one is relaxed, popo know that tightly wound one is mowing: they can honestly say they didn't manipulate, if they just ask the relaxed one.

A. "Protect and Serve" Doctrines 1. Public safety a. Including reasonable basis for believing occupant seriously injured or imminently threatened with such injury (Brigham City, Utah v. Stuary (2006)). 2. Community caretaking function 3. Exceptions to: a. Warrant requirement b. Probable cause requirement 4. Generally: a. Plain view applies b. Primary purpose test?

1. Explanation/discussion a. We've got two "protect and serve" doctrines b. These are NON law enforcement doctrines. These are idealized ideas of what we want the popo doing. c. They both make ivory tower sense. Have big implications for civil liberties, but they are logical. d. Public safety doctrine = popo aren't doing law enforcement; are making sure people aren't dying in a house. If popo have reasonable belief that there's a fire, that someone is dying or getting hurt inside your house, they're allowed to enter your house. Once popo are in the house, though, they might see some stuff - might've heard screams, thought you were dying, instead you were watching a movie, but then they see evidence of a crime. We want them to still do this, though e. Next doctrine: community caretaking function. If your cat is lost, popo find it, we want popo to return it. If bring cat, knock on door, nobody answers, we want them to open door and shove cat inside. That feels weird. These two doctrines are NOT criminal law enforcement. If officer is doing one of these, happen to see some stuff, that info is fair game. So this is dramatic.

A. Issue: area and flight 1. Illinois v. Wardlow 2. Suspect present in a high crime area: a. Insufficient if that is the sole factor, BUT is a permissible consideration b. Controversial stuff: is an officer allowed to form reasonable suspicion based on where the encounter happens. What's the problem with that: allows police to treat people differently based on where the live, are located at that moment. That's not fair and equal. And we want the police to treat people fair and equal. i. Also: suspicion is generalized and not particular - has nothing to do with the individual suspect. ii. Also: violent crime doesn't happen more often than non-violent crime. Saying that there are 'high crime neighborhoods' is preferencing one type of crime. iii. Also circular reasoning: if we say a place is high crime, if we search people, we will find crime, because crime is everyone. iv. Also, we're worried that "high crime area" is a phrase that just leaks in through implicit bias, or somebody is just speaking in code because they don't like an area. v. What SC says: high crime area by itself is sufficient, BUT police may take it into account. That seems like an endorsement of fuzzy thinking, general suspicion instead of specific suspicion. § On the other hand, not sure we can really ask police to ignore that - if they know a certain type of crime is happening in an area, that's going to be in their mind

1. Flight: a. Suspect flight from law ienforcement: i. Suggestive of wrongdoing ii. Sufficient for reasonable suspicion only if: § Unprovoked, headlong flight from law enforcement 1) Which word in that phrase seems problematic: unprovoked - the officer doesn't know what's going on in th eperson's head. Officer is making a big guess just based on his own understanding of how he views himself, timing (I showed u pand they ran). 2) Headlong is susceptible to some objective, articulable description: that means a dead sprint, person wasn't just jogging away. 3) Also, running has to be away from law enforcement. What conduct would give rise to an argument that somebody was running from police: if police say 'it's the police.' Also: if the suspect is aware police were there. If police can only say that all they saw was the suspect's back, it's hard to say that run was actually fro law enforcement. § Coupled with other factors sufficient ("Flight Plus" argument = mere flight is insufficient) 1) We ALSO need some other factors. SC says officers can take flight into account, but it is NOT sufficient alone. That feels like a broken rule. There are lots of reasons people run in general, and run from the police. But if we were to tell officers to bottle this up, probably wouldn't get anywhere, they'd just start lying about what happened. 2) So: This encourages honesty on the part of the officer. Sometimes people call this the "flight Plus" test - mere flight is insufficient, even if it is unprovoked and headlong. b. Is suspect flight from law enforcement suggestive of wrong doing: well, it could also be suggestive of fear (of police, of being afraid of being targeted if seen talking to the police); you might also run because everybody else in your group ran. But yeah, it IS suggestive of wrongdoing. i. Does that mean they're a suspect: no, it's just a little piece of evidence that could have an alt explanation. If we lived in an idyllic society, running would be a lot more incriminating - but we don't. ii. Problem is how much, how heavily we let the police weigh this factor. Court says that police can take this into account IF it's not just running, but a particular kind of running - unprovoked, headlong flight. 2. Area + flight a. Wardlow b. High crime area plus headlong flight from police, taken together: i. Reasonable suspicion? ii. Hall says: "Plus" something is required c. What if we have flight in a high-crime area? Wardlow seems to suggest that a high crime area plus headlong flight from police together satisfies the Flight Plus argument. i. RBut note: There's an additional fact in Wardlow that is an additional fact that matters: flight in a high crime area is NOT enough, but you do need a little plus, still. § In this case, the fact that gives us that 'plus:' suspect was holding an opaque bag. Why does that matter in this case, upfront: it was an area known for narcotics trafficking, police were there investigating narcotics. When they see someone running with a bag, they're afraid drugs are in the bag. That small, additional fact matters.

Terry stop/frisk: Hearsay: A. "Hearsay:" 1. Information not personally observed; includes: a. Witnesses b. Fellow officers, dispatcher, etc c. Informant/anonymous tips

1. Hearsay IS allowed 2. Is the officer allowed to say that some of the specific, articulable facts were delivered to him by a third party: yes. Can rely on "hearsay." a. It's really rare for a police to investigate a crime because they saw it live. Over and over, they're in the field because they have a tip, hear about something on their radio (double hearsay - tipster call police, police get on radio). The vast majority of encounters happen bc dispatch sends police out to do something.

General Exam Review

1. In first section, note const violations, but don't follow up on them. Next section, discuss standing for each violation. Third section, explain exclusionary fact of the violations. Fourth section, explain FOTPT for each defendant or suspect. 2. If you can challenge step 1, can challenge everything after that as FOTPT, even if you wouldn't otherwise have standing. 3. If LE commit violation step 1, don't have standing, that leads to steps 2, 3,4 can you challenge 2, 3, 4? Possible that even thought 2, 3, 4, are FOTPT might not have standing. If step 5 do have standing, can seek suppression of everything found in that step, anything that follows from it. 4. Possible that for the one step a suspect can challenge, FOTPT exception is in play. 5. Confession following an illegal arrest is not absolutely an act of free will. 6. Way to be thinking about drug dogs: dog is high tech. LE can't use high tech to get info about what's going on inside your house, not in plain view. What SC says in Jardines: in general your front porch isn't curtilage. But the porch is curtilage as far as a drug dog is concerned. What SC seems to be saying is that we have an area around your house that's curtilage for some reasons, not for others. Association also seems to be, from Jardines, that LE can't bring drug dog to anything LIKE your front door, like maybe the back or side door. Applied to review question: if the scent is so strong it's detectable from the street, may not be an invasion any more - LE possible argument that that drug dog didn't violate the Jardines rule. 7. In general, lawful vantage point means: LE can't be getting an unlawful vantage point, inrusive location, to use plain view. Stereotypical ex of lawful vantage point: public sidewalk. If walking up to your front door: little intrusive, but that's generally an invitation to public. What if jumps trespassing sign, enters your yard: SC says that's still a lawful vantage point. Typical dividing point between lawful and unlawful vantage point: curtilage. 8. Plain view: innocent touching is ok, touching of doors that LE is allowed to touch is ok. Invasive touching of everything and moving stuff isn't ok. 9. Probable cause: Hall thinks a good definition is 'reasonable belief.' 10. Community caretaking and public safety was ON the review problem.

I. Socrative Quizzes and assignments A. Takeaways from the operating agreement

1. Note that a right that belongs to an individuals who is named in the OA will NOT survive past the individual's membership. Aka, if you sell your shares to someone, they won't get that right. That'll affect the value of those shares. That might affect Safely later on, if she wants to sell 2. 9.07: a member may not enter into secured or unsecured loans...unless 3. 9.08: no member may...unless 4. Model answer to 9.08: no member may, directly or indirectly, participate in any transaction with the company without the prior written approval (of safely and at least one other member) (of a majority of the nonparticipating members). 5. Standard of care - ex is paragraph 5.04 on slides 6. In general: a specific provision will trump a vague provision. So if, for ex, there is a provision that would state a manager can't compete, but it's vague, and later there's a provision that says he can compete, and is specific, the specific will trump the general. 7. Indemnification: doesn't protect you from a third party's lawsuit; it just means that your employer will pay if there is a lawsuit against you.

1. Miranda Exception a. Public safety interrogation 1) Exigent circumstances b. Miranda warning not required 1) New York v. Quarles c. Explanation/discussion 1) One exception to Miranda - in emergency situations. 2) New York v. Quarles: popo chase armed suspect, suspect runs into a grocery store, corner him in a store, but gun is now missing. Without giving Miranda, popo ask 'where is the gun.' i. Why: someone else might find it and then might lead to an injury or lead to a crime. Also: afraid suspect might still have it, are afraid he might shoot them, so officers are trying to assess the risk of the situation so they don't shoot an unarmed suspect. ii. Here, we have a de facto arrest. Suspect has a good argument he was in custody. "where is the gun" = interrogation. iii. But exception bc: (and ONLy bc of) public safety. Quarles is a public safety exception only to Miranda. So far, ONLy have public safety exception.

1. Relevance of knowledge of warnings a. Miranda warnings required regardless of subjective understanding b. Explanation/discussion 1) Does it matter whether the suspect understands the warning? Ct has regularly says that we don't care about subjective understanding here. This rule is broken. 2) But the wisdom behind this: impossible for popo to know whether or not Miranda is understood. 3) Broken: deaf people, non-native English people.just have to give the Miranda rights, don't have to make sure the suspect understands

A. Avoiding Miranda? 1. Suspect in custody for another matter: a. Miranda still applies b. If suspect is in custody but it's for a different matter - aka, if suspect is in prison for murder, popo want to ask some questions about theft. Does miranda apply: yes. Test is just custody and questioning. (contrast to 6th amendment, which is charge specific).

1. Suspect questioned for civil offense a. That could mature into criminal matter b. Miranda still applies c. Suspect is being charged for a civil offense, does Miranda apply? If it is purely civil, no. but if being charged for a civil matter that has a criminal component, like tax evasion, YES.

A. Quiz 1 1. What is the first piece of advice you probably would give a sole proprietor? Protect your assets through insurance and limited liability form of an organization 2. After the sole proprietor incorporates her business, what does she own: "stock" or "shares" in the corporation. She is a shareholder. These are also called "securities," as in securities litigation, a class that serious business law students should take. 3. If the former sole proprietor contributes additional money or assets to the Corp, what will she receive in return: more shares 4. T or F, a Corp is a person: T 5. These things are true for a Corp: it can sue and be sued; it can own assets; it can commit torts; it can enter into ks and assume debts and other liabilities.

1. T or F, after the sole proprietor incorporates she will still own all the assets used in the business: F; the business will own the assets. She will own an interest in the business. 2. The sole shareholder of a business makes decisions regarding how the business is run, T or F: F; the shareholder may be making the decisions, but not in his shareholder capacity 3. Who has the finality authority over the operation of the Corp? The board of directors, which may (and always does) delegate authority to the corp's executives to make day-to-day decisions If a business used $100 to purchase the raw materials, in the balance sheet it would: reduce the cash by 100 and increase the raw materials by 100

A. General Miranda Review (of previous material) 1. We would have Escobedo application if: we have specific facts (listed on slide) 2. Normal Miranda stuff, that's most important to remember: Miranda warnings don't spring up out of the blue. Police do it routinely though - if they have Mirandized suspect, then any questioning that happens is immunized. Don't have to Mirandize suspect unless suspect will be facing interrogation. 3. Two components for Miranda trigger: 1) custody; 2) interrogation a. Miranda occurs when we have questioning or the legal equivalent of questioning 4. Miranda doean't apply to routine traffic stops. Also doesn't apply to "custodial investigation:" a. Aka if somebody is in station house, having to do sobriety testing - might have custody, but in this case, no interrogation (even if popo are asking questions, as long as that is part of the sobriety test. b. Not actually giving testimonial speech. Speaking in a sobriety test is not testimonial, says SC - we are compelling suepct to give evidence, but isn't testimonial. c. Talking during a sobriety test, blood test, breath test, none of that constitutes testimony against yourself. Logic: protected fro popo coercion; none of this type of questioning is revealing your thoughts. Hall says this feels weird.

1. There is a VERY limited public safety exception to Miranda (will be on exam). This is a v narrow sub-set of exigent circumstances. No Miranda exception for, say, hot pursuit. ONLy exception for public safety. V narrow set of exigent circumstances. This comes from Quarles. a. Don't have to talk about the Miranda exception unless the suspect is in custody. This can occur, thought, through de facto arrest. That was the case in Quarles - popo had suspect surrounded, with their guns drawn. b. To claim the Miranda exception, what do LE need to do? Police need to immediately, as soon as it's clear that there is a public safety question, act/ask question about where the suspect's gun is. If popo don't ask their question immediately: (they could have just given the Miranda warnings; takes only a few seconds to say them) we won't believe them that there was no public emergency that warranted skipping the Miranda warnings. What were they even doing in those first few seconds if they don't give the warnings - that should be our question. c. LE argument: they didn't ask the question until they realized there was a public safety problem; as soon as the problem arose, we asked the urgent question - sorry we didn't mirandize. We asked as early as possible. d. In short: LE have to ask as soon as possible as soon as they realize there's a public safety problem 2. SC says that there is no req the suspect understand the Miranda warnings. Just have to give them to them. Some states differ on this. But feds say just have to give them, don't have to ask if the suspect understands. Might be an exception if the LE definitively KNOW the person can't/doesn't understand

A. Carpenter v. United States

1. Third party doctrine a. Information shared with a third party: 1) No reasonable expectation of privacy 2) Exs: bank records, call log 2. Tracking devices a. Surveillance of vehicle movement in public 1) Through observation 2) Through tracking devices b. No reasonable expectation or privacy 3. Application to Cell Phone Metadata a. Long-term phone location information 1) GPS or cell tower b. Pervasive surveillance violates reasonable expectation of privacy 4. Rationale a. Comprehensive nature of: 1) Around-the clock 2) Personal 3) Effortlessly compiled 4) Tracking information 5. Explanation a. Carpenter concerns the FBI. They thought when they were getting cell tower location data, they were fine - that's just showing public movements, and that's a third party. FBI didn't think what they were doing was risky at all. 1) BUT: Sc said this is all true if you're looking for 24 or 48 hours of data, some short-term surveillance. Problem in this case was long-term surveillance. That's what SC was hung up on. Long term in this case = 28 days. 2) Was this detailed info: where they were, wasn't GPS data; just accurate within 1/10 of a mile. Rough location data. How many data points were there: 10/13 thousand. Medium amount of data. Rough location data, not that many data points. 3) Contrast this to your fitness monitor, which is taking thousands of data points every data. 4) So long term is imprecise: are we talking about time or intensity of surveillance? 28 Days is pretty intense, even if location data was rough. But if we're just looking at fitness data for two days, it might actually contain 100 thousand data points. b. Rule: pervasive surveillance violates reasonable expectation of privacy. Can have pervasive surveillance with 28 days or just 5, depending on the kind of data, bc of the intensity of data that is produced. 1) Absolutely a month's length of data, can't get that. But maybe a week's worth of more intense data would also be too pervasive. Note there are no cases that say just a few hours of data is improper c. Rationale: we're doing privacy analysis in a diff way we did before - we're worried about the capacity of the gov to, without any effort, obtain info about you. That poses a real threat to our civil liberty. SC seems to hint it's not going to let big brother watch you, evn if you're sharing that info with apps or doing that stuff in public.

A. General Rule for Submission 1. Seizure occurs if: a. Suspect submits and a reasonable person would not feel free to terminate the encounter/leave OR decline the request b. There is no seizure if a suspect "submits" when a reasonable person would feel free to terminate/decline

1. This "reasonable person" standard is an objective test. There is no attention paid to individual person's particular circumstances, race/gender, etc. a. The real world isn't like this, obviously b. Also: SCOTUS assumes that the reasonable person is very assertive and confident. 2. Note also: seizure will also occur if the police retains a suspect's ID or bus/transportation/etc. ticket 3. Hypo: if there's popo in the front and back of your bus, we might think that the police have taken control of the bus, and you wouldn't feel comfortable walking off. But SCOTUS has actually assumed that a reasonable person is very ballsy. 4. We're going to test submission based on reasonableness. If you throw up your hands everytime you hear scary noise, you have not reasonably submitted. SCOTUS just asks if a reasonable person would not feel free to leave. If a reasonable person would have felt free to leave, terminate encounter, there is NOT submission. No seizure if suspect submits when a reasonable person would have said getting off the bus. Aka, SCOTUS thinks that reasonable people are: incredibly assertive, say no to the police.

A. Definition of seizure 1. Seizure occurs if: a. There's a use of physical force to restrain a person's movement OR b. There's (1) submission (2) an assertion of authority i. This possibility MUST have both elements ii. Why not merely require an assertion of authority? Or just an 'attempt' to seize? § This is pragmatic - we want to encourage suspects' compliance and discourage flight. § This is also theoretical - we think that law enforcement shouldn't end up in a worse position despite compliance with good practice

1. Two diff ways to define seizure: if police use physical force to restrain movement OR if a suspect submits to an assertion of authority. a. The moment that the officer tackles you, he restrains. Anything the suspect threw as he was running away before that tackle was therefore before the seizure. i. What could the suspect have done to trigger a seizure: submit. § But submission alone isn't enough; he'll have to argue that the officer running to him was an assertion of authority. v If officer had said 'stop police,' that's a slam-dunk argument that that person was submitting, there was a seizure. § Why isn't enough that the police just asserted authority: we want people to cooperate. If we just have authority, we're not prompting people to cooperate, which is what we want. v Just authority would punish the police for showing up and saying they're police. We want a rule that encourages people to cooperate v Restated: why is an attempt to seize not enough to force the police to have to satisfy the reasonable suspicion test: it encourages people to escape. We want people to stop.

Alternatives to SITA vehicle search:

A. Alternative 1. Vehicle doctrine a. Topic #12 on syllabus 2. Inventory search (booking search) a. At station house or impound Lot 1) Of person 2) Of vehicle 3) Of containers in vehicle b. Allowed But only if routine procedure for the law enforcement agency

I. Detention A. Fourth Amendment 1. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..." 2. Let's restate this issue: If there is a seizure, what's the constitutional limit on it? Where in 4th amend do we have a limit on seizure: "reasonable." a. If we have a seizure, the question will always be is it reasonable. B. Where does the issue lie? 1. Limit on unreasonable seizures a. Reasonableness = amount of suspicion i. Triggered only if seizure (aka stop, detention, deprivation of/restraint on physical liberty) occurs 2. The officer needs to have a requisite level of suspicion to seize somebody. a. Thought experiment: Does officer need requisite level of suspicion to sit in control car and watch you: no. i. Officer needs requisite level of suspicion to seize you. If they don't seize, they don't need any level of suspicion. C. What if there's no seizure? 1. Seizure has a reasonable requirement (requires a requisite minimum level of suspicion) 2. There is no seizure if there is no requisite suspicion. No suspicion, no seizure. 3. If there's no seizure, what's the test: there isn't one. a. So what does police want to argue: there was no seizure, because then he doesn't have to pass a test. i. As their lawyer: you'd want to argue that whatever evidence the police got from the suspect was not acquired after a seizure - because then there's no test. Evidence taken from an unreasonable seizure might be inadmissible. Evidence gained when there is no test is fair game. At the moment the suspect is seized, there is no test the officer needs to pass, so evidence is fair game (because it was abandoned, some other reason).

A. Amount of suspicion - how much suspicion is required to stop/seize a person: Reasonable suspicion 1. This must be based on objective facts known to an officer, and must be suspicion that the suspect is involved in criminal activity 2. Reasonable suspicion = significant amount of articulable suspicion. a. Needs to be objective facts known to the officer/stuff he learned from observation, dispatch, fellow officer; can be first or second hand, but has to be something that the officer can objectively state as fact and can describe (can't be 'I just knew it'). 3. Idealistically, what do we want the suspect to do when police tells him to stop: stop and cooperate with the police. a. If he doesn't cooperate, should he be in an unfavorable or favorable position: unfavorable. We want to set up a system where, if you comply, the rules help you, and if you run, they hurt you. b. If suspect acquiesced, and after acquiesce, dropped a kilo: then the suspect would've been able to say he acquiesced, but police now need to pass a test. i. But if he runs: he doesn't get the advantage of saying the police had to pass a test. ii. What is the suspect's defense argument on "did he run from the police:" can argue no - it was an unmarked car, plainclothes police. He might've thought he was running from assailants. § Let's have another thought - in some areas of the country, it does make sense to run from the police for your own safety iii. Do we want police chasing people? Sometimes. We don't want them to chase innocent people, only when they really think they're up to no good. Don't want them to chase without a reason. § What are we comfortable letting police do without reason: watch people. NOT run after people, stop them. § Hypo: police drive up in a white van and chase people, hoping they'd drop drugs or commit other crimes. That's constitutional, but they're trying to take advantage of the test. They're trying to create suspicious behavior, frighten people so that they either do something suspicious or discard what could become evidence. The rule from this case allows for that.

Details regarding excessive force:

A. Details 1. Law enforcement conduct evaluated a. Objective reasonableness 1) POV of officer on the scene i. Facts and circumstances known to officer § Permissible inferences ii. Allowance for split-second decision-making in tense, uncertain, rapidly-evolving situation 2) NOT: iii. 20-20 hindsight iv. Subjective intentions (even if evidence of malice or sadism) B. Remember: 1. Analyze 4th amendment claim based on objective fact,s not subjective intent a. Whren v. United States

A. Independent Source Doctrine 1. Evidence discovered initially and unlawfully 2. Evidence discovered later and lawfully a. Without use of initial discovery 3. Evidence not fruit of the poisonous tree 4. Discussion/explanation a. Ex LE have unconst evidence that you committed murder. Next day, somebody comes in with a video of you killing. 1) The video is NOT excluded, is a completely independent source. 2) What's contaminated: only the stuff that flows from the initial violation, as that investigation continues. But if LE acquire even the same info in a good way, that indep source is valid. b. Say there's three people, get two statements that are illegal, but the third person says the exact same thing, is the same as the illegal statements: 1) LE have good evidence in that third statement. Not looking at content of evidence, just how LE got it. c. Ex: LE illegally get photos from phone. Later LE find the same photos on fb - can use them, even though they're the exact same photos. d. How could LE get around this exception: chief could create a new investigatory team, could be able to rebuild the same evidence lawfully. 1) As long as second team builds the case without any use of the initial investigation, as long as it's truly independent.

A. Attenuation 1. Exclusion if: a. Evidence obtained because of exploitation of violation 2. No exclusion if: a. Connection between violation and evidence so attenuated as to dissipate the taint b. Evidence obtained by means sufficiently distinguishable as to purge the primary taint 3. Discussion/explanation a. This is the idea basically of proximate cause. We can have a violation in step 1, bunch of stuff happens between then and step 50, and step 50 is related, but is so far removed that we're just going to say that the contamination doesn't touch it. b. Ex: LE find evidence two years later, can argue that bc of passage of time (one attenuation factor) there's no attenuation. c. Another ex: word gets out into criminal community, a person finds out, starts feeling guilty, comes in and voluntarily confesses. Bc they're deciding to confess on their own, not going to say that that is poisonous. d. Another ex: how bad was the initial LE misconduct. 1) What kind of violation was so bad that it would never attenuate: torture. 2) Might say that that doesn't attenuate over ten years bc so horrible. But if step 1 is relatively mild, lotta years pass, ct might say we have attenuation bc violation was so minor, just negligent instead of purposeful. e. Attenuation = initial separation between steps is so great that we don't have proximate cause; causation so weak that legally we won't hold the two things separated. B. Attenuation Factors 1. Time a. Temporal proximity 2. Intervening act of free will 3. Flagrancy a. Taint takes more to dissipate

A. 6th amendment right to counsel approach 1. Popo can't question suspect about crime once they have right to counsel without counsel being there, or counsel waiving right 2. After 6th amendment RTC has attached: a. Initiation of prosecution b. Adversarial judicial proceeding 3. No interrogation without counsel a. Interrogation = deliberate elicitation 1) When popo do anything that could constitute an effort to get a deliberate elicitation b. By LE c. By informant/snitch acting for government 1) Tough one bc there are people who are regularly in jail may know that they can get rewards or benefits for telling the policy info 4. Charge specific!!! a. Questioning regarding other amtters permitted b. 6th amendment applies only to charges the suspect has been arraigned for

A. BUT: 1. Waiver of RTC a. Normally: knowing, voluntary, intelligent

I. Terry Stop and Frisk A. Pre-Terry Interpretation 1. 4th Amendment as Required Probably Cause for all searches and seizures 2. The Terry decision was very important. Terry was a moment in our history where the SC changed how the 4th amendment looked. Prior to Terry, SC said that had to be probable cause for ALL searches and seizes. Terry, however, gives the police tremendous power - allows them to interact with citizens in a much more intrusive way than the previous law allowed. Probably cause really only req for warrants. The needle goes from probable cause to 'reasoanbleness.' Reasonableness is qualitatively different than probable cause - reasonbeness is elastic, indefinite; in some cases, reasonableness might be almost nothing, in other situations it might be close to probable cause. B. Terry era 1. Focus shifts towards a. Reasonableness for all searches and seizures b. Probable cause for warrants C. Terry stop 1. Stop = detain briefly for questioning or investigation 2. Level of suspicion = reasonable suspicion that suspect involved in criminal activity 3. Explanation a. What is a Terry stop: brief detention for questioning or investigation. This is in contrast to an arrest - aka, these have to be less than an arrest. b. How much suspicion does an officer need to do a Terry stop: reasonable suspicion that suspect is involved in criminal activity. That's an incredibly workable rule for officers in the field; doesn't require long-winded legal argument or analysis. D. Terry frisk 1. Frisk = limited, protective search of outer clothing; pat down 2. Suspicion: reasonable suspicion that suspect is armed AND dangerous 3. Explanation a. Terry frisk: a limited search ONLY for protective purposes, to look for weapons - aka, a pat-down. The officer needs a different level of suspicion for a frisk: it's different than a detention, bc officer has physically touched, restrained the person. Needs reasonable suspicion that the suspect is armed and dangerous. Without those two things, we're not going to allow an officer to touch the suspect. If a person is passed out holding a gun, they're armed, but not dangerous. Somebody who is a martial arts district: not armed, but are dangerous. b. Why does McFadden have reasonable suspicion that these guys are armed and dangerous: there are people in the store; if they do plan on robbery, likely that they will have weapons bc it's normal for daytime robbers to have weapons bc they will encounter people. But he doesn't see bulges; he just makes this permissible, inferential jump. How does he know they're dangerous: they're planning a robbery.

A. Background to Terry 1. Officer McFadden saw Chilton and another guy walking one at a time. It seems like maybe one is on the lookout, the other is casing. Also, it's suspicious because they do it a bunch, plus if they're going individually, there's a far more complex explanation than that they're just walking and talking around the block. The officer could argue that what he saw looked like other crimes he saw - Hall doesn't like that, because an officer will always say 'I'm a good officer, trust me.' individual expertise of the officer shouldn't help us unless the officer can explain it, like "I know this tool is a tool of the trade for particular conduct." 2. The key piece here is no just that they passed the store, the key piece that elevates it from possibly innocent conduct: repetitive; each person goes to the store window 5-6 times. So now, even if there was some possible innocent explanation, officer is like this has moved past innocent conduct. Up until that fact, Hall is thinking that this is unusual, but quite possibly innocent. Also, what about the fact that it's 2:30 in the afternoon: if you want to rob a store, and not break into the safe, you do it at 2:30 - aka, it's consistent with a possible robbery. 3. The officer doesn't just stop these people though - he immediately stops and frisks. B. Frisk issues 1. "Use it or lose it?" (what if an officer doesn't frisk right away, but waits ten minutes to frisk?) a. Immediate/prompt search allowed i. If requisite suspicion b. Logic i. Frisk to dispel/confirm fear for safety c. If officer chooses not to frisk right away i. Implication of non-dangerousnes C. Final comments 1. Cannot do a terry frisk unless the officer has already done a terry stop. Has to satisfy standards for the seizure before can move on to the frisk 2. Have to have two things to perform a terry frisk 3. Why is there a use it or lose it phenomenon with the terry frisk:? Certainly the rules allow for an immediate/prompt frisk."Dangerous" gives us this phenomenon - if doesn't do frisk at once, promptly, but rather waits ten minutes, it would strengthen a defense argument that the officer lacked the requisite suspicion that they were DANGEROUS. 1. There is no bright line rule that an officer has to do an immediate/prompt frisk: BUT if he delays, then the defendant has a good argument tha the officer did not have the requisite suspicion that he was dangerous. (NOTE THIS; this is how it needs to really be articulated) thought is that no officer would delay the frisk of a dangerous suspect. a. Note that this may be ameliorated by other circumstances - the officer may need to wait until he can call for backup to safely frisk the guys.

A. Waiver 1. Express waiver 2. Implied waiver (de facto waiver) a. Agreement to answer questions 1) Even if no agreement to relinquish rights b. Silence regarding Miranda warnings is insufficient 1) Challenge: silence followed by incriminating statements 3. Discussion/explanation a. Some departments require an express waiver of Miranda. Will give suspect a form, req that suspect sign the form, won't interrogate unless the suspect does. Lots of suspects will sign it, which is crazy. Bs. Waiver is a knowing relinquishment of rights. There's nothing intelligent about signing the form. What's more, lay people don't understand their rights. b. Forfeiture: where you give up rights. Makes more sense, seems like that's what SC actually means. c. There is an implied waiver if suspect starts to answer questions. Waiver can be both express or implied d. Challenge: "do you want to waive?" No, but I want to tell you what happened. That is an implied waiver.

A. Better 1. Better analytical structure a. B of P on prosecution to prove waiver 1) Direct proof 2) Inferential/circumstantial proof b. Proof of voluntary statement 1) Strong case for LE: statement volunterred without interrogation 2. Discussion/explanation a. A slightly diff direction: popo have to prove waiver. How: offer direct proof of waiver, like a form or a statement from suspect that they give up their rights. Can also offer circumstantial proof: we gave warnings, suspect talked, that demonstrates a waiver of Miranda. b. Hall is actually more comfortable with this. We're expecting LE to put some evidenceon the table that the suspect waived their rights. c. If we have a voluntary statement, then that's a win for the LE. Do we need evidence of a voluntary statement: idk, we do need evidence of a waiver. But we don't NEED proof of a voluntary statement; that would just give the LE a really strong case. But LE can win even without it. d. Ex of voluntary statement: have a mirandized suspect, absolutely invokes their rights, is put into a jail cell. Next morning they wake up, start screaming I can't sleep, I did it. That's a voluntary statement. Is there a wavier? There was no explicit cancellation of rights, but that's implied bc we're totally confident the suspect just decided to speak. e. If suspect just starts speaking, LE are good to go. f. The fact that the suspect speaks, if there is no other evidence: LE wins waiver argument. BUT remember that voluntary statement is not required. g. What do LE need to prove waiver: gave miranda warnings, suspect spoke with LE after Miranda warnings. h. No req that a suspect understand what they are giving up. Hall thinks that what the SC is really looking for is forfeiture.

I. Bodily Intrusion A. DUI Specifics 1. Breathalyzer for DUI a. Allowed during arrest 1) No warrant required i. All we are talking about is fourth amendment issues, not state statutes, police mandates, etc ii. If police make a DUI stop they are allowed to make a search of your breathe, don't need a warrant 2. Blood test for DUI a. Warrant preference, BUT exigent circumstances option 1) Again, not looking at state statutes 2) Big thing with looking at blood test is the destruction of evidence, ie the blood alcohol level is diluted every hour after the stop. B. DNA 1. DNA testing during booking a. Intrusion = minimal b. Already in custody c. Reasonableness 1) No warrant required

A. Bodily Intrusion 1. Police may want a warrant to obtain evidence from a suspects body, or an innocent bystander, could be something like a bullet for the public, or drug balloon in a suspect. 2. Police need pc evidence that a crime was committed and need pc that they will find evidence. 3. Warrant a. Required 1) Unless: warrant exception (eg, exigent circumstances) i. The drug balloon, could burst and be absorbed by the body, or harm/kill the suspect. ii. If the court stopped here, it would be uncomplicated rule. But the court goes farther 4. Reasonableness a. Probable cause for search 1) Sufficient to justify intrusion i. Ex: looking for bullet and it is in an innocent bystander ii. Extra probable cause is extra intrusion § Extra probable cause is they have witnesses that saw the suspect shoot the bystander § Why do you need the bullet at this point? Or to even perform the surgery § Hall says it feels weird to him in this context. § If this was the only way to convict the suspect that is different b. Reasonableness of intrusion 1) Procedure itself i. Intrusiveness (pain/trauma/risk) and effectiveness § How dangerous is the surgery? How likely is it the person will be injured by the surgery? What is the recovery time? 2) Method of performing procedure i. Medical practices and risk § Is this EMTs or a surgical team at the hospital? § Is it routine and it would be done in the next 3 months anyway? Or is it a procedure that is rarely ever done? § Stomach pumping might be the least dramatic, and is relatively routine. § Bodily intrusion would also apply to blood testing that would help prove something is in the suspects blood. Easy procedure, few risks, very routine. B. Bodily Intrusion on exam (100% chance this will be tested); how to tackle it: 1. Do warrant piece 2. Reasonableness part one - probable cause 3. Reasonableness part two - intrusion 4. Reasonableness part three is looking at the procedure C. Shocks the Conscience 1. Independent of 4th amendment claim a. Doesn't necessarily have an practical use here, if you can't win a fourth amendment claim, why would you think you could win this? b. If police squeak through the 4th amendment claim using an exigent circumstances claim, then maybe you could make argument that this is just a fundamental right for individual c. Hall thinks your chances are less than 1/100,000 in winning one of these cases 2. An implied fundamental rights claim a. Substantive due process 1) Rochin v. California 3. Law enforcement conduct that shocks the conscience is unconstitutional a. What does shock the conscience? They can lie to you, be on your property, trick you during undercover operations, beat people up, hire prostitutes, etc. b. Bring the "Shocks the conscience" up on exam, but not longer than a sentence or two. Note it is a long shot claim. c. For ex: torture 1) Not much left after the war on terror with Guantanamo bay. 2) Court goes both ways with cases out of gitmo 3) STC basically exists as a warning shot to the executive branch

I. Confessions and incriminating statements - exclusionary rules A. Miranda Exclusion 1. Admissible for: a. Impeachment of defendant 1) Limiting instruction 2. But remember - if due process violation a. If statement involuntary/coerced b. Exclusion for all purposes 3. So far - similar to general 4th amendment exclusion a. Differences to come 4. Discussion/explanation a. Miranda exclusion = exclusion of the incriminating statement. b. Miranda exclusion means just the exclusion of the incriminating statement, not the incriminating evidence. Aka, is a really weak for of exclusion. c. Unlawfully obtained incriminating statements by defendant admissible to impeach, but only the defendant. But this rule opens the door to something kinda odd: defendant can manipulate this rule - might be able to have a witness take the stand, say something totally diff to the incrimiang statement, jury might not ever be able to hear the incriminating statement. Ex: have an alibi witness take the stand, even though D might have admitted he was where the crime took place. The court calls that the danger of perjury by proxy. Aka, don't get to hear the incriminag statement if the D themselves don't testify. Ct knows it's a problem, so WHY do we let this happen?? The fear is that we'll hamstring the D's case. Plus, popo have a big incentive to get incriminating statements B. Details (just a "theory" slide) 1. Unlawfully obtained incriminating statements by defendant admissible to impeach a. Only the defendant b. Concern 1) License to perjury i. Perjury by proxy 2) Vs. perjury prosecution adequate deterrent c. Exclusionary deterrent balance 1) Danger of encouraging Miranda violation

A. Consecutive statements 1. First statement obtained in violation of Miranda, but: a. Second statement obtained in compliance 2. Normal expectation a. Exclusion 1) Presumption = second statement tainted 2) "cat out of the bag" 3. But: a. If second statement genuinely untainted: 1) Evidence of voluntariness, waiver b. Second statement not excluded unless: 1) First violation of Miranda intentional 2) Second statement admissible only if first violation unintentional 4. Cases: Oregon v. Elstad and Missouri v. Seibert a. Oregon v. Elstad and Missouri v. Seibert: What Hall is presenting is the most common analysis of these cases. Reasonably, sensible synthesis of these cases. 5. Discussion/explanation a. This is a bad doctrine. Basic thought: if a D makes a statement obtained in violation of Miranda, then LE realize they blew it, tells D they messed up, re-Mirandaizes, get D to confess again, ct says that LE can use that second confession. So from the D's POV what should LE do when they come back: just say no. but they probably think that the cat's out of the bag, don't understand legal processes. b. Second statement admissible ONLY if it is untainted. Aka, ct will look for stronger evidence of voluntariness with the second statement. LE should make sure they do everything right - a formal Miranda waiver form, video that shows there was no coercion. Really want to be able to demonstrate that this was voluntary. c. Big exception to this: if the first Miranda statement was an intentional violation by LE, we won't use this rule. What does this mean: applies if we have a negligent violation fo Miranda at the beginning, the LE does it right. Doesn't apply if we have a deliberation violation d. Proof of intentional violation: can consider if LE knew or should have known they didn't do everything the should've done. e. Note that LE do NOT have to tell the suspect they made a mistake with the second statement. Just have to do the normal Mirandization. In theory, just need an implied waiver, but court is really going to scrutinize that.

I. Standing A. Who can asset a 4th amendment search claim? 1. A person whose reasonable expectation of privacy is violated by LE 2. A person whose property rights are violated by LE B. Premises Factors 1. Does a premises visitor have a reasonable expectation of privacy: a. Factors: 1) Nature of premises: commercial vs. non-commercial 2) Amount of time visitor spent in premises 3) Visitor's connection to premises b. Rule of thumb 1) Casual, short-term visitor enjoys no expectation of privacy C. Rejected bases for "standing" 1. Rejected a. Person legitimately on the premises b. Guests, licensees, invitees Co-conspirators or other trusted third party

A. Critique 1. Denying claim to short-term guests undermines security of those who have a stronger connection B. Vehicle analysis 1. Driver of vehicle may assert privacy claim a. Unless: illegal driver/thief b. May assert privacy rights c. Even if rental and driver not on contract 2. NB: everyone in vehicle may assert liberty claim regarding seizure 3. Owner/co-owner may assert privacy claim even if passenger C. Alternative if no reasonable expectation of privacy 1. Supervisory power? a. Judicial integrity/procedural DP b. Answer: no 2. Shocks the conscience? a. Implied fundamental right b. To what? Answer: probably not.

I. Arrest A. Arrest = significant deprivation of liberty 1. In custody 2. Vs. a stop 3. If you do an arrest, you need probable cause. Because a law abiding person would act differently. Arrest happens if the officer says you are under arrest, or does it. This could include just placing cuffs on you or putting you in the back of the cruiser. B. Suspicion required = probable cause 1. Facts and circumstances, along with reasonable inferences, sufficient for a reasonable officer to believe that a crime was committed and the suspect was the one who committed it 2. Note: Hall doesn't think this is useful to us for the FINAL 3. Probable cause is probably around 70-80% a. Court has refused to articulate this numbers, may or may not be right but this is what Hall thinks C. De Facto Arrest 1. How do we know whether an arrest has occurred vs. a mere stop? 2. Formal: "you're under arrest." 3. Informal: de facto arrest a. Factors 1) Location 2) Movement of suspect 3) Intrusiveness/force of restraint i. If they have cuffs on them, there's a strong case that they are under arrest. 4) Duration A few hours detention really wouldn't feel like a brief stop. Once we hit 12 hours there is no doubt it is an arrest.

A. Detention during warrant execution 1. Detention during execution of premises - search warrant allowed a. Limited to immediate vicinity of premises 2. If the police have a warrant to search the house and there are people in the house it does give the police the ability to make an arrest at that time. 3. Detention During Execution of Premises Search Warrant Allowed a. Fuzzy as to if this is a detention because it will probably take several hours to conduct the search. b. Warrant searches also include the judicial branch because they had to get a judge to sign off on the search warrant. c. Limited to immediate vicinity of premises 1) If people are on the porch during the execution of the search, they get swept up in the search as well. B. Arrest of wrong person 1. Good faith mistake regarding suspect a. If a suspect shows an id and it is of someone else, that does not mean the police have done wrong, they still made a goof faith effort (think brothers, siblings) b. Police don't need certainty they are arresting matthew hall, if the car and clothes are those of his but if it is Michael hall then the police have still made a good faith effort 2. If law enforcement has probable cause to arrest, AND reasonably believe they have found the suspect, they can arrest a. Good faith belief that the arrestee is the suspect 3. Reasonable mistake regarding identity does NOT render arrest unconstitutional a. This whole rule where the police WIN C. If there is probably cause to arrest, subsequent factual developments do no render the arrest unconstitutional D. What about subjective believe that arrestee is not perpetrator or that probably cause is not present? 1. Objective probable cause to arrest a. But officer doesn't believe probable cause is present 2. Split. a. Federal: objective facts support arrest 1) Not looking at the Officers subjective thoughts, if they don't think they are guilty, but the warrant is still valid then they can still arrest.

A. Inevitable Discovery 1. No exclusion if: a. Lawful means would've led to discovery of the evidence b. Ultimately or inevitably c. b/p on LE 1) preponderance 2. "Hypothetical independent source" 3. Discussion/explanation a. Why is this a dumb name: nothing is inevitable. Thought is that LE might find something unconstitutionally, but we can be pretty confident that if LE didn't find it, somebody else would tomorrow. b. Ex: somebody breaks into house, leaves a body in you house while you're on vacation. 1) LE find it illegally. But we're pretty dang sure if they hadn't found it, YOU would have as soon as you get home. c. Ex: illegally get D to tell where body is, but body was on the side of the road under a snowbank. We're really confident that somebody would find the body later, after snow melts. d. Our thought: LE would've found this evidence anyway if we didn't have this violation.

A. Distinct Rules 1. Confession following illegal arrest - factors a. Miranda b. Temporal proximity c. Intervening circumstances d. Purpose/flagrancy of official misconduct e. Voluntariness 2. Arrest with PC but in residence without warrant a. Only exclusion of evidence obtained within residence 3. Miranda violation a. Only exclusion of the confession b. No fruit of the poisonous tree doctrine 4. Discussion/explanation a. There are specialized rules for different situations. 1) One situation - what if we have a confession following an illegal arrest i. Why would we normally think Fruit applies: we wouldn't have the confession without the arrest; plus, suspect is thinking LE might be able to seriously harm then, since they just saw them illegally arrest them. ii. Situation is ripe for confession, bc person feels uncomfy bc illegally arrested iii. BUT SC says that Fruit doesn't automatically apply here. iv. Have to evaluate some factors for Fruit to apply: § How close in time is confession to arrest § Did LE mirandize/compliance with miranda § Are there intervening circumstances § How bad was the initial, illegal arrest - were they beaten, or just PC mistake? § How voluntary was the confession 2) Another situation - arrest with PC but occurs in suspect's residence (again with PC) but no warrant i. If LE find evidence in the house, that evidence is excluded, but the arrest is ok ii. Even if break in to make the arrest, that arrest is still good 3) REALLY IMPORTANT SITUATION - Miranda violation i. NO Fruit of poisonous tree rule. We ONLY exclude the confession. ii. What are LE allowed to use: any evidence the confession leads them to. iii. Can use that confession to find evidence down the road. iv. THIS WILL 100% BE ON FINAL. B. Harmless Error 1. Erroneous ruling by judge results in reversal on appeal unless beyond reasonable doubt error was harmless a. b/p on government b. but "overwhelming evidence of guilt" exception: structural error/fundamental fairness

I. Confessions and Incriminating Statements: Due Process & 6th Amendment Right to Counsel A. Incriminating Statement 1. Confession a. Often we use this term imprecisely 2. Some other inculpatory response to interrogation a. Sometimes defendants will make an incriminating statement that is no way related to the crime. 1) Someone moved the bowls example. Placed suspect at the scene. 2) Both words and phrases are used in a sloppy way. 3) Why do we have so many doctrines protecting people? We know from history of the police violating these rights. 3. What is the concern? a. Possibility for law enforcement misconduct in attempt to obtain incriminating statement 1) Depravation of medical treatment, right to counsel, etc. 2) Violation of 6th amendment right to counsel 3) Violation of due process 4) Violation of right to remain silent i. Right to not incriminate self ii. Miranda iii. Trying to make sure we are regulating and curbing police misconduct.

A. Due Process Concerns 1. Remember: Shocks the conscience a. Have the right to be free from executive branch conduct that shocks the conscience b. SC says we violate this standard if (point b) 2. Compulsion/coercion vs. a. Voluntariness 1) This is the alternative to coercion/compulsion. 2) Feels like a weird word to be using. 3) If it is coerced, it shocks the conscience. b. Why? 1) Conduct of law enforcement i. We don't like coercive conduct by LE, want to avoid it. ii. We want the incriminating statement to be meaningful. 2) Truthfulness of statements i. Statements made from torture (from intelligence community) they can often times not be accurate. ii. We don't want to contaminate information for the trial. iii. Worried people will say anything to stop torture/mistreatment, etc. B. Due Process Test (multi factor test) 1. Involuntary a. Will of suspect overborn by LE 1) Hall hates these words, thinks it's weird and toxic masculinity 2. Based on LE misconduct a. Coercion 3. Totality of circumstances a. Including the character of the suspect AND official conduct 4. Viewed POV of reasonable person in position of suspect Classic subjective overlaid with objective thing here.

A. Immunity 1. Governmental liability a. Only if policy b. Explanation 1) QI is weird, only comes up if you sue the individual officers in their individual capacity. 2) If you sue them in their official capacity, you have to show that there is a governmental policy in place. Aka, if there is a policy of choke holds, can argue that that is excessive force. 3) Can also argue that if a lot of officers are doing a certain thing, station is turning a blind eye. 4) But cannot argue excessive force in an official capacity lawsuit if action is usually a one-off 5) So you need to sue officers in their individual capacity. i. Note that the vast majority of fed employees, even if sued in individual capacity, will have the gov step in to defend them. Typically they're not literally, personally on the line. 2. Individual liability a. Only if action is in contravention of clearly established constitutional right b. Otherwise QUI c. Question of law d. "Constitutional right:" 1) Not: free from unreasonable force 2) Instead: Free from unreasonable force 'under the specific circumstances of this case." 3) Aka for P to win, have to show there was a previous case where officer has lost, and so the officer in this case has violated standard set out in that previous case. Effect: no longer talking about og standard, we're just asking if, by dumb luck, is there a case directly on point. e. What this means: can't pursue this action only if officer commits a really obvious constitutional tort. This gives the officer a little bit of shelter 1) Thought behind this: we want to encourage LE to do their job, so if they make a little mistake, get QI; if they make a big mistake, they don't. 2) Standard has slowly become more and more generous to LE 3) Unless P can bring up a similar case with v specific circumstances, officer today will almost always get QI. f. Key: very NARROW definition of constitutional right 1) Hall: theoretically pov of P, but QUI converts cases into POV of Defendant 2) In general, we're just looking at allegations in complaint, then seeing if there is another case out there with same circumstances g. In general, officer is asking for QI NOT as a Rule 56 motion, but rather as a 12b6. 1) Effectively a motion to dismiss on the pleadings. Happens really early in the proceedings, before any discovery happens; discovery may never happen. 2) What we do under QI means, therefore, that we don't look actually at P's POV

A. Effect of qualified immunity 1. Lawsuit is dismissed if there is no previous case on point. a. OR: unless no rasoanble officer would have acted in that manner 1) Aka, theoretically there is a way to win even if there is no case on point - but this rarely happens. 2) Really hard standard to meet 3) Practically speaking, if we did have a case this bad, wouldn't est a precedent bc LE will settle. 4) So we don't actually have a lot of case law for this. B. How Generous is qualified immunity 1. Qualified immunity a. Protects all but the plainly incompetent or those who knowingly violate the law b. Absolute immunity? 2. No clearly established right if: a. Unique set of facts 3. If there's a unique set of facts, LE wins 4. QI protects all but the plainly incompetent or those who knowingly violate the law a. Absolute immunity? 5. No clearly established right if: a. Unique set of facts C. Long-term 1. QI freezes the status of the law a. Dismissal if no cases on point b. No new decisions 2. Catch-22

I. Fruit of the Poisonous Tree and Exceptions A. Fruit of the Poisonous Tree 1. Previously - exclusionary rule a. Evidence obtained directly from a 4th amendment violation 2. Now - Fruit of the poisonous tree a. Evidence obtained indirectly, or secondarily, from a fourth amendment violation b. Evidence obtained bc of the violation 3. Exclusion extends to secondary evidence 4. Discussion/explanation a. If we have an illegal stop or search, the evidence gained through that is excluded. b. What if the illegal detention leads LE to go search a house two hours later? Applies to evidence obtained even secondarily from a 4th amendment violation. 1) Any evidence acquired later, if it is because of the og violation, is excluded. c. Going to be running two analyses: 1) Who has standing to challenge each violation 2) Does each step have a connection to the first violation. 3) Aka: run through your standing analysis, then run through fruit of poisonous tree analysis. i. Can argue that step 2 or 3 might not have ever happened because of step 1, and person MIGHT have standing for step 1, so therefore have standing to challenge steps 2 and 3. Two strands of analysis: what violations can this D challenge; for each distinct violation, what counts as fruit of the poisonous tree

A. Exceptions 1. Independent source doctrine a. Evidence not obtained because of constitutional violation b. Fruit of a non-poisonous tree 2. Inevitable discovery rule a. Fruit of poisonous tree exclusion inapplicable 3. Attenuated connection principle a. Fruit of poisonous tree exclusion inapplicable 4. Discussion/explanation a. Three big exceptions to fruit of the poisonous tree: 1) Independent source doctrine - evidence was obtained bc of some reason other than the initial violation, aka no causation. 2) Inevitable discovery rule 3) Attenuated connection principle - we have causation, but causation is so weak that we're going to say fruit of poisonous tree is dissipated. b. How to organize exam: 1) first section of your exam should be all of the const violation. Exclusions. 2) THEN do a section where you examine standing, who has standing to raise each violation. THEN do a separate section where you do fruit of poisonous tree analysis. Do NOT combine all of these parts.

I. Scope and Expansion of Terry A. Factors to consider in evaluating Permissibility of more invasive/ intrusive search 1. Amount or specificity of suspicion beyond mere reasonable suspicion 2. Dangerousness of pat down or frisk 3. limited nature of additional intrusion 4. Conduct of suspect 5. Class notes a. Can you do more than a frisk: yes, if you have details on the location of a weapon. b. If we are in a minimally dangerous situation, probably won't allow more than a pat-down. c. If suspect is really antsy, might allow more than a frisk B. Scope of Terry frisk - suspect in vehicle 1. Law enforcement may search those areas in the passenger compartment of the vehicle where a suspect not have it immediately accessible weapon = the "Grab Zone" 2. Suspicion requires a. Reasonable suspicion that suspect is armed, dangerous, and could gain immediate control of a weapon 3. Class notes a. Suspect in vehicle: if officer encounters the suspect on the street, this is normal Terry. If encounters them in a car: it's like suspect is wearing the car - your stuff is around the car, area around the driver. b. Should an officer HAVE to tell a suspect to get out of the car: no, that'd create more danger. Can frisk them while they're still in the car, if they want. c. If the police does the frisk outside of the car, doesn't find anything, and the suspect gets back into the car, they're still dangerous - so, regardless of where the suspect is, we will treat the car like a jacket. Officer gets to frisk the car regardless. d. Is officer allowed to open glove box, passenger compartment: no, it's not in the 'grab zone.' e. Is police allowed to reach under the driver's seat? Yes, that's (barely) in the zone. f. Officer needs suspicion: suspicion of 1) armed and 2) dangerous and 3) could gain immediate control of a weapon g. If an officer touches the subject and feels no weapon, he has to stop. If he feels an object not a weapons: have to stop. If he suspects the object is a weapon, he's allowed to check.

A. Expansion of the search 1. If the officer feels no weapon OR object not reasonably a weapon, then search is over 2. If officer reasonably suspects object is a weapon, THEN officer may expand the search 3. If officer feels object with immediately apparent incriminating character, THEN officer may expand the search a. A probable cause standard 4. Explanation: a. If you can tell it's specific contraband, like something specific that was just stolen, or something like a bag full of drugs you can expand the search B. How to determine "immediately apparent:" 1. Immediately apparent incriminating character a. Sight b. Feel c. Hearing 1) Note: these first three would need a lot of information to use these in Hall's opinion. Must be very likely they have to have discovered something. d. Smell C. Length of detention 1. Permissible length of Terry (or Citation) stop? a. = Investigative detention for reasonable time b. Court endorses reasonably brief detention even if shorter detention is possible c. Note: Citation stops are basically treated the same as a terry stop d. Purposes of writing the ticket e. Officer is allowed to make this last as long as he wants, as long as it is for the safety of everyone. SC says even if the stop could be done in 5 minutes, 20 minutes would still be reasonable D. Additional conduct during reasonable detention 1. Drug dog sniff a. Dog does not mean it is an additional intrusion b. As long as the encounter does not last more than 20 minutes, than it is not an additional intrusion. Immigration status

A. Anticipatory warrants 1. Anticipatory warrants: you can have a warrant that isn't effective right now, but becomes effective if a certain situation occurs. Ex: they know there's a package filled with drugs, they track it like a fedex package to someone's house. Don't want to seize it on the way, want to wait til it's at recipient's enter 2. . Can't get a fully valid warrant right now, but know from tracking it's about to be delivered, so can get an anticipatory warrant. 3. Related note: Some warrants are sealed, like if you're planting a bug.

A. Explanation 1. Police are ALWAYS in a better situation if they get a warrant, legally. a. Do we have a warrant req in the const? we have a warrant 'preference.' Warrants are just better for everybody. b. There are so many exceptions to the warrant req that some people say that saying there is a warrant req leads you in a wrong direction. 1) Police can also just argue they didn't do a search, didn't need warrant if they, say, come into your backyard. 2. Procedures for obtaining a warrant: a. Send warrant application to a neutral and detached judge/magistrate. b. Warrant has to be signed under oath or affirmation. c. Warrant has to est probable cause; here we're focused on evidence gathering, search warrants - probable cause that the evidence we're looking for is at this location or on this person. d. A warrant has to have particularity, has to describe with an appropriate level of detail what the police are looking for and where they are looking. List the evidence you're looking for. 1) Where are popo allowed to search: any place that evidence might be found. i. If looking for an axe, are allowed to search places where an axe might be. This encourages the popo to say things like "evidence of murder," ask for small things, so can look everywhere. 2) "description sufficient to reasonably allow id: cts require a very rigorous description regarding premises. We need an address. i. Why is it possible to be rigorous about people and premises: because we can get specific, because rigorousness is POSSIBLE. ii. Why can't we be rigorous about things: bc there can be a lot of, for example, axes - there are a whole lot of axes in the world. Exception: if we are looking for specific stolen material.

I. Exigent circumstances A. Exigent Circumstances generally 1. Warrant exception!!!! 2. Probably cause required!!!! 3. Burden of proof is on law enforcement B. Exigent circumstances factors: 1. Gravity of underlying offense 2. Hot pursuit 3. Public safety 4. Preservation of evidence 5. And anything else C. Ad hoc reasonableness for exigent circumstances D. Scope and duration 1. Scope - limited a. Ex: search to find suspect b. Aud/or evidence 2. Duration - limited a. Until suspect located, safety achieved, and/or threat to evidence ended b. Until exigency ended

A. Explanation/discussion 1. Exigent circumstances: This is a warrant exception - aka, popo need to have PC. So exigent circumstances are NOT a PC exception. 2. What are factors: a. Gravity of offense - if investigating murder, that matters a whole lot more than a minor theft b. Hot pursuit - chasing bad guy, have PC bc saw bad guy run into the house or structure - we don't want popo to have to give up the chase bc guy runs into someone's house c. Public safety: if suspect has hostage, there are people inside the structure, we're afraid the suspect will hurt somebody d. Preservation of evidence: more problematic. Popo can claim this in situation that don't seem as emergent as others. e. And anything else: these factors are not meant to be comprehensive or limiting; these are just the most common concerns. Ad hoc reasonableness - just look at what's reasonable. This is a classic totality of the circumstances test - guided by four factors, but not limited to them 3. Scope for how long popo have an ECs search: as long as the situation exists. a. So if it's a public safety situation, once the place is safe, the popo have to stop. Once they secure evidence, grab the bad guy, they have to stop searching. b. Where are they allowed to go, if looking for a suspect: where the suspect could be hidden - can't look in medicine cabinet. c. If public safety argument: allowed to look where the public safety threat could be. Can't look everywhere for the hostage, open up tiny cabinets looking for them.

A. Interrogation 1. Express questioning OR deliberate elicitateion a. = functional equivalent of questioning b. Words or actions reasonably likely to elicit an incriminating response from suspect c. But LE not accountable for unforeseeable results 2. Discussion/explanation a. Definition of interrogation: literal questioning OR deliberate elicitation. Elicitation = the equivalent of questioning. Anything the officers are doing designed to elicit a response. Words or actions likely to bring about an incriminating response. What would NOT qualify: LE tells suspect they're taking them to the car, ask them if they're ok. Officer did ask a question, but wasn't express questioning in the way that we mean it. Officer will argue that wasn't reasonably likely to induce an incriminating response - not questioning about crime, just their health, that not rasonbly likely to cause an incriminating response. b. What DOES violate: any attempt to actually interrogate, whether it's a demand for info, a puppet theater to make the suspect there is some problem they need to clear up. c. LE not accountable for unforeseeable results - if suspect just blurts something out, popo can argue that was an unforeseen result. Suspect, in turn, will argue that when LE walked up, shook their head, that was meant to make them feel bad, say something. 3. Resumption of interrogation a. After invocation of RTRS b. Interrogation may resume if: 1) Interrogation ceased immediately 2) Passage of significant period of time (two hours sufficient) 3) Renewed Miranda warnings 4) Regarding different offense 5) ??? Different officer, different location c. Discussion/explanation 1) What if suspect invokes their RTRS. May officers ever resume interrogation? 2) If suspect invokes RTRS, can officers check in the next day, ask if they're willing to talk to us today: yes. Officers cannot interrogate, but they CAN check in to see if suspect is willing to waive their rights, periodically, as long as they're not doing anything to disrespect RTRS. Cannot check in 15 minutes later, but next day is ok. 3) After suspect has invoked: interrogation can resume if interrogation ceased immediately, significant period of time passed, renewed Miranda warnings, questioning regarding different offense. Ie: LE come back 2 hours later, renew Miranda, jump back into questioning if it's about a diff offense. That's dramatic. This won't always help LE bc of the diff offense req.

A. Invocation of Miranda RTC 1. After invocation of Miranda RTC 2. Interrogation must cease 3. Cannot resume until after suspect receives counsel 4. No resumption of interrogation allowed in the interim 5. No resumption of interrogation allowed after consultation with counsel 6. Regardless of passage of time 7. Regardless of unrelated offense 8. Clear request for counsel required. a. NOT: 1) Maybe I should talk to a lawyer 2) I'm supposed to have a lawyer 3) Could I have a lwyer present when I talk 4) Can I get a lawyer right now b. Unambiguous request needed 9. Discussion/explanation 1) Invocation of Miranda RTC 2) With RTC: interrogation must cease, CANNOT resume until suspect has counsel. After has counsel, LE cannot talk to suspect without counsel. 3) RTRS has a big carve out, but RTC doesn't. better to invoke RTC. 4) How does suspect invoke? Applies to both RTC and RTRS: a clear request is req. Why did SC say the exs on slide aren't good enough: some of these look like questions, not requests. Look like they're not definitive. Tone is also important, can make them seem like a question. Can't really tell unless you hear the way someone says them.

A. Jamison v. McClendon 1. Section 1983 as civil rights remedy a. QI as a tool that denies that remedy 2. Facts a. LE sks five times for consent. Damning evidence for LE. b. Officer stuck his hand in the car, was already doing a search of the car even though Jamison had said no. c. Problem: no previous case on point establishes that consent is absolutely invalid after five requests. B. White v. Pauly 1. LE officers show up, sneak into property at night; they look like they're trying to break in. identify themselves maybe once but NOT like they should for a nighttime raid on someone's house. a. In other words: LE has created the situation. 2. Officer white arrives late to the scene. Claim against him is that he should've announced himself before shooting. a. Doctrinal argument that officer should say something before shooting: before using deadly force, officers are supposed to give a warning. b. White wasn't under fire, so he didn't have an excuse. c. The suspects fired first, but they fired a shotgun into the air. The officer maybe, maybe not was actually under fire. 1) If he really did think he was under fire, we don't want him to hesitate - not reasonable 2) But if officer really knew that gun was just shot into air, he arguably had to still warn before shooting. 3) Normally we'd construe this factual dispute in favor of Ps. But the court says that in the situation of a late-arriving officer, who's allowed to assume previous officer acted properly, have to ask if there's a reasonable standard/previous case that says officer has to announce before shooting: the answer is no. We're not even getting before a judge on this factual question because it's shut down by QI.

A. Kisela v. Hughes 1. Officers come up, see Hughes hacking at a tree with a machete. She's agitated. They don't know she's mentally ill. From LE's pov, she's potentially violent - seems angry, agitated, is fair to say that she seems potentially violent 2. LE ask her twice to drop weapon. She's potentially violent, armed, and steps toward someone else. But she doesn't raise the machete. So it's hard to assess how much of an immediate threat she really poses. 3. LE have a good argument, but this is still a strong case for P that LE shot prematurely. 4. QI: SC unanimously says is there a previous case that says if LE is confronted with a machete wielding suspect that refuses to drop the machete: no, so LE get QI. a. How is a P ever supposed to get a case in court under these standards?

I. Miranda - Confessions and Incriminating Statements A. Transition 1. Escobedo v. Illinois a. Limited departure from normal doctrine b. 6th amendment RTC attaches if: 1) Investigation focused on suspect 2) Suspect in custody 3) Interrogation of suspect 4) Suspect denied requested consultation with counsel 5) Suspect not informed of right to remain silent c. Escobedo - this is a case before Miranda. Was trying to increase counsel protections during interrogation. That ultimately leads to Miranda. SC here, though, was trying to make it work through 6th amendment, which doesn't really work. BUT this case has never been overruled; still valid law, but it's confined to the case's specific facts. d. Specific facts of Escobedo: not in a prosecution, still in an investigation, but suspect is in custody, is being interrogated, asks for counsel, is denied, suspect doesn't get Miranda warnings. In this case, SC says right to counsel applies. 1) Why, in general, is this just wrong, how does this violate our normal 6th amendment right: there hasn't been a first, adversarial judicial proceeding. 2) Maybe in practice, if you had all but one of these facts, could argue for the SC to extend this case. B. Miranda v. Arizona 1. Triggering condition 2. Custodial interrogation a. Custodial = under arrest (formal OR de facto arrest) b. Interrogation = deliberate elicitation 3. Logic a. Custodial interrogation - inherently compulsory 1) According to Hall, though, interrogation is historically abusive - that's makes more sense as the logic behind this 4. Explanation/discussion a. Miranda is one of those few places you have to know a case name. Miranda warnings - when popo arrest someone, routinely say you have rt to remain silent, anything you say can and will be used against you...etc. b. When the popo need to give the Miranda warnings. They routinely give them at the moment of arrest, just to be safe. BUT they only really have to say it if we have custodial interrogation. c. At the moment of arrest, we have custody. Say it at moment of arrest so that anything suspect says after that is admissible. d. But technically, don't have to give Miranda unless engaging in interrogation after arrest e. Note that Miranda rights are NOT absolute, are triggered by custodial interrogation

A. Miranda holding/rule 1. (Specific) Rights a. 6th amendment right to remain silent (RTRS) b. 6th amendment right to counsel (RTC) 2. Constitutional status of Miranda warnings a. Initially: procedural safeguards b. Now: Miranda is constitutionally-based 1) Dicerson v. U.S 3. Triggered by: a. Custodial interrogation 1) Remember: interrogation = deliberate elicitation B. Details 1. Invocation of the rights a. RTC and RTRS 1) Invocation initially: indication "in any manner 2) Invocation now: clear invocation required 3) Invocation can occur at any time in the process (even if some statements made) b. Explanation/discussion 1) So you've been given these warning, how do you invoke them: SC has made it really hard to invoke your Miranda rights. Aka, SC handed down Miranda in an era where it was handling criminal defendants some rights. Since then, SC has restricted a bunch of those rights. 2) Allowed to invoke these rights at any time in the process. 2. Waiver 3. Miranda does not apply to: a. Routine traffic stop 1) Berkemer v. McCarty b. Custodial investigation 1) Only custodial interrogation to elicit testimonial response 2) Not sobriety testing i. Pennsylvania v. Muniz c. Explanation/discussion 1) Miranda doesn't apply to routine traffic stop, even if it's a citation stop. What about when popo are taking your fingerprints, doing a field sobriety test? SC has classified all of that stuff as custodial investigation, even if it involves words. Just asking for info about how suspect's body is working, instead of interrogation.

A. Vehicle Issues 1. Citation stop a. Does not allow SITA 2. Citation stop a. Law enforcement may order driver AND passengers to exit vehicle 3. Explanation a. Random vehicle issues: citation stop b. Does citation stop allow SITA? No. a citation stop is when popo pull you over to write you a ticket. In general, tickets that popo write are misdemeanors, not felonies. c. On the other hand: citation stops do allow the popo to do a lot of stuff. During citation stop, pop can order driver, passengers to exit the vehicle. This is for safety reasons. d. Note: Terry is an independent line of thinking that happens after the citation sto

A. More Vehicle Issues 1. Search incident to arrest scope with regard to vehicle a. Includes passenger component AND accessible containers b. Explanation 1) How does the scope of the search play out in respect ot the car. 2) In standard sedan, what is the immediate area of the arrest: the whole passenger compartment. Where emight there be limits in big suv: third row, luggage area. Will depend on size of SUV. Minivan: better argument for searching further back - it's all open, more accessible than a SUV. Think about immediate control and accessibility. SITA def allows first row of seats search, probable second. But in big SUV, might not be a search of third row - might be search of third row in a minivan. Probably not the trunk. BUT the popo , though don't get to search it, do get to inspect it - can open tailgate, trunk if unlocked, see what's back there. 3) Doesn't include locked containers, but yes accessible comtainers - shopping bags, backpack, purse, glovebox if accessible. In sedan, do they get to search trunk? Not immediately adjoining (contrast to hatchback - open to passenger compartment; if have privacy screen, might get to remove that). 2. Contemporaneous a. As long as arrest occurs contemporaneously with presence in vehicle 1) Recent occupants & imminent occupants? b. Explanation 1) Contemporaneousness: the rule that you'll often see is that, assuming popo has reasonable belief additional evidence of crime in vehicle, get to do SITA as long as contemporaneous with presence in vehicle - ex if arrest somebody when getting out of vehicle. 2) What if they're getting into car? Hall says if somebody is walking to their car, put hand on car door to open it, let popo do SITA. If we don't do that, they'll just wait til somebody sits down in the car, and that increases the danger of the situation. 3) What if person is just walking to car, haven't touched car yet? We're worried that they might turn around, go back for something - don't know 100% whether that person really is about to get into the car. 4) In short: with recent occupants, no problem bc they really were in the car. No problem with imminent occupants if they really, really are imminent. If ten seconds from getting into car: that feels worrisome

A. Issues 1. Time Lag Problem: a suspect discards evidence after an assertion of authority but before submission/completed seizure a. Moment of submission = moment of seizure 2. How much force is needed to constitute "physical force?" Perhaps just a touching a. Why is there a good argument that even that amount of contact should be enough to constitute physical force: you don't want the police touching you. That's common sense. i. So: a bunch of cases say a touching, just a tap on the shoulder, is enough.

A. More problems 1. What if a warning shot is fired? What if that warning shot actually, accidentally hits a suspect in the leg? a. Each police station probably has its own procedures. SCOTUS doesn't really care. OUR minds should go to assertion of authority test. If suspect keeps running, we don't have a seizure. If throw up their hands, we do. b. What if a shot is supposed to be a warning shot, but hits suspect: this looks like a restraint of movement through physical force. Submission to assertion doesn't work here - no evidence of submission. 2. What if police just says "Hey, you!" What if that causes the suspect to stop? a. Police says "hey you:" no seizure yet. Complication: if officer is in uniform; if we don't know what type of voice he's using. Either way, we still need a submission, even if this is an assertion of authority. b. If suspect holds their hands up, there's submission, but still can't tell if the words are actually an assertion of authority; there may not, then, be a seizure. 3. What if the police pull up to the curb? What if a timid person immediately raises their arms because of that? a. What if police pull up to the curb, somebody throws their hands up? No seizure - that's not clearly an assertion of authority. How else are the police supposed to park. b. BUT if the police come in hot, screech up, and person throws up their hands, there is a really good argument that that hot arrival WAS an assertion of authority.

A. Hudson v. Michigan 1. Exclusionary rule doesn't apply to violation of knock and announce to execute warrant a. Rationale 1) Definition of exclusion i. Constitutional violation not "but-for" cause of discovery of evidence 2) Deterrence i. Knock and announce violations rarely, if ever, committed to obtain advantage ii. Rule suspended for safety/evidentiary reasons 3) Constitutional significance of knock and announce? 2. Discussion/explanation a. Hudson v. Michigan: SC here said that there is no exclusionary rule for knock and announce vioaltions. Idea: popo are going into the house one way or another. 100% they're entering the house. So the knock and announce violation does not cause the acquisition of evidence. Aka SC says there's no deterrence value here. Hall doesn't get that - we could be saving people's lives. Hall doesn't think they're skipping k and a for no reason, and that means we can deter it. B. Another exclusionary rule 1. 6th amendment RTC violation a. Excluded like 4th amendment violations 2. Discussion/explanation a. Another exclusionary rule: 6th amendment violation. Remember that 6th attaches with the first adversarial proceeding, RTC. Is just like 4th amendment in practice - excluded from prosecution's case in chief. 6th and 4th are, then, normal violations. K & a is like a super minor violation, no exclusionary rule.

A. Non-criminal exclusionary rule? 1. Theoretically possible, but never applied a. Calculation of deterrent value 2. In practice: a. No exclusionary rule for civil/administrative proceedings 3. Discussion/explanation a. What if ct wanted to bring up unconst acquired evidence in an immigration case: civil, not criminal. So is there a prosecution's case in chief in an immigration proceeding: no, bc not a criminal proceeding. So is the exclusionary rule applicable in an immigration proceeding: no. what about tax proceeding, social security: rule isn't applicable. Is there a non-criminal exclusionary rule? Would we ever have one of these rules in a civil setting? SC has said consistently this is theoretically possible, but have never applied this. So in practice, Hall says no.

A. Good faith exception 1. Exclusionary rule doesn't apply if LE reasonably relies on warrant (or other authority) subsequently determined invalid 2. Officer executing search warrant or making arrest based on warrant 3. Must act in good faith 4. Good faith does not apply if: a. Good faith doesn't apply to miscalculation regarding level of suspicion, exigent circumstances, etc. 5. Discussion/explanation a. Good faith exception: if beat cop is looking at warrant, thinks they're safe in executing it, it looks like a valid warrant, is there any way you can deter him from violating the const? No. as long as thinks they're validly executing the warrant, there's nothing to stop. b. So: exclusionary rule doesn't apply if officer reasonably relies on a warrant that is later determined to be invalid. Classic scenario: officer is executing a warrant, arrest warrant looks good, nobody tells him that they lied and cheated to obtain it. If warrant is later determined to be invalid, the good faith exception applies, even though const violation, so no exclusionary rule bc can't deter somebody acting in good faith. c. Places where good faith doesn't apply: doesn't apply if we're in the field with no warrant, have an officer who thinks that he has reasonable suspicion or PC and gets it wrong. Aka: doesn't apply if officer is just relying on their own sense of the level of suspicion, even if he made a legit mistake about PC. d. Also doesn't apply if: warrant is OBVIOUSLY invalid. If the date box is empty, or box items to be seized is empty, officer can't claim good faith. There can't be obvious problems with the warrant. e. Also doesn't apply if the magistrate was biased. No way the officer would know this. The idea though is that we don't want to let judges issue warrants bc they're out to get somebody. f. Also doesn't apply if popo manipulate the warrant process - get it issued some way that looks like cheating, or they lie in the warrant application. Would officer executing warrant know about these things - no. doesn't matter, bc it would allow the detective to cheat and just give the warrant to a dupe beat cop. g. Ct says we also won't apply good faith exception if there is some other reason why it wouldn't be appropriate to apply good faith.

A. Notes 1. Logic a. No deterrent value 2. Some federal courts a. Apply rule very broadly 3. State practice a. Some states reject good faith exception 4. The idea is that we can't deter an officer acting in good faith bc they don't think they're acting wrongly B. Scope of good faith 1. Also applies to: a. Reliance on inaccurate computer record of warrant b. Reliance on subsequently overruled caselaw c. Reliance on inaccurate report of warrant/authority from dispatcher or other LE personnel 2. Discussion/explanation a. Good faith applies to warrants, AND inaccurate computer records of warrants. If LE have messed up computer records, might think GF can't apply bc somebody in the station screwed up. Logic: officer who is told there is a warrant in the pc system has no way of knowing that the administrator is doing a bad job. Applies not only when officer is handed a warrant, but when he is told that there is a warrant in the system. b. ALSO applies when officer relies on a previous case. Applies when dispatcher tells officer there is a warrant for arrest. Does NOT apply to officer that just says "I saw x." still talking about officer relying upon somebody else, like a warrant, not just another random officer's eye witness thoughts, applies to legal authority. C. Due process violation 1. DP violation a. Coerced incriminating statement b. Shocks the conscience bodily intrusion c. Excluded for all purposes 1) Not just prosecution's case in chief d. NO good faith exception 2. Discussion/explanation a. What's on the opposite end of this scale from knock and announce: DP violation. b. We don't want the police engaged in torture. We don't want popo hurting people to get coerced information. No good faith exception, exclusionary rule excludes everything from every stage. In this context for DP, be thinking about torture.

A. Pretext 1. Pretext: Constitutional law cannot solve all of our problems. And it can cause disastrous for policing. If we say officer has given a pretext to excuse what we mean is the officer had a different motive for the actual stop. A pretext or reason is what the police says in public because it sounds legitimate but actually the police has a real secret reason at least that's what we think. Do we even know those subjective reasons? Rarely unless the police themselves tell us 2. Whren: The Supreme Court says I'm Wheen that if the pretextual reason is adequate we ignore the possibility of there being some other protectional reason that is the police wins. That is we ignore subjective intent as long as there is a legitimate protectable reason this rule tells the police that as long as they can come up with a legitimate reason it doesn't matter that they might have a bad personal reason 3. Our concern is that: this will give the police license to act based on sex race etc. 4. Note that even if you lose a Fourth Amendment case concerning the police is pretextual excuse for an arrest or a stop you can still have a constitutional tort suit the problem that you will have in this constitutional tort case is that you already lost your 4th amendment case therefore now you're arguing that there's an illicit motive. However you've already lost your credibility and you are a criminal; you have dirty hands and will be facing an uphill battle B. Anonymous/informant tips

A. Pretext a. Pretext = proffered/stated reason b. Subjective intent of LE = "Real reason." c. Subjective intent not relevant to 4th amendment analysis, so long as objective facts, known to officer, support detention/search i. Whren v. United States B. Concern 1. Reasonable suspicion standard, and limits on pretext claims 2. Give license to action based on race, first amendment conduct, other improper considerations 3. But: a. Lozman v. City of Riviera Beach, FL allows First Amendment retaliation claim, despite probable cause to arrest

A. Kinds of Coercion 1. Actual OR 2. Threatened use of force a. This would be really bad, LE can't hurt you. b. BY: LE c. By: others - ex "the mob outside" aka, your friends won't be happy to hear you talked to us d. Denial of medical treatment 3. Psychological pressure 4. Promises of leniency or threats of harshness 5. Deception a. Undercover policing is deception. Means that out of the gate, it doesn't mean coercion. B. Factors for coercion 1. Suspect's: a. Age (Hall doesn't think this is necessarily relevant) b. Mental state c. Mental capabilities 2. Interrogation a. Length b. Nature c. Number of officers d. Understanding of rights 3. Impairments of free will a. Deprivation of sleep/food b. Intoxicants/medications c. Injury/pain 4. Hall doesn't think there is anything super special on this slide at all. Really thinks you could come up with all of this by brainstorming.

A. Procedure 1. Judge determines voluntariness a. Preponderance of evidence 2. Even if statement is admitted 3. Jury determines weight a. Defense counsel may want statements actually admitted, might be better for client if they can put the police on trial. Might be the best move for defense. Not that you want your client being coerced, but could help. 4. Why? B. Rule of thumb 1. Violation a. Brutality b. Equivalent of torture c. This is when the Ds have a great argument and when Hall thinks they'll win. Due to gitmo bay and war on terror 2. Possible violation a. Less extreme physical conduct 1) If no physical conduct, our default setting should be that the popo will win 3. Probably not violation a. Non-physical compulsion 1) If suspect has a kid, it's factually true that there'll be an issue with CPS. When child welfare is an issue, court is going to be sympathetic

I. Exclusionary Rules A. Function of Exclusionary Rules 1. Evidence obtained because of constitutional violation suppressed, or excluded, from presentation in court a. "Remedy" for violation of constitutional right b. Separate Exclusionary Rule for each right 2. Discussion/explanation a. We will have a separate exclusionary rule for each const violation b. Exclusionary rule: means that evidence obtained bc of a const violation will be suppressed or excluded from presentation in court. c. There's really a separate exclusionary rule for each const right. B. Search and Seizure 1. General 4th amendment violation a. Search or seizure violation 2. Exclusionary rule applies ONLY to: prosecution's case-in-chief 3. Does NOT apply to: 1) Pre-trial 2) Bail 3) Sentencing 4) Probation/parole 5) Impeachment of defendant 4. Discussion/explanation a. Most of this course was search and seizure, 4th amend rights protecting you from an unconst search or seizure. b. Basic rule for search and seizure: exclusionary rule ONLY applies to the prosecution's case in chief. c. Case in chief: the part of the trial where the prosecution does an opening statement and calls witnesses. That leaves a lot of parts of the prosecution process where the rule doesn't apply. Doesn't apply to pre-trial hearings, bail proceedings, other stuff before a trial. Can ALSO use it at sentencing - have someone convicted of one crime, might usually be an x year sentence, attorney can go before the judge and say that the person should instead get y years bc they've been acquitted of other crimes, etc. judge gets to consider everything at sentencing. Also doesn't apply to probation and parole. Can also use it if the defendant takes the stand. 1) Case in chief: prosecution's argument to the fact finder.

A. Rationale 1. Former: judicial integrity a. Sully the robes b. Based on DP 1) Imperative 2) Constitutionally-mandated 2. Now: deterrence a. Remove incentive to disregard constitution b. Implications: pragmatic 3. Discussion/explanation a. The theory behind exclusionary rules: NOT for outline: SC thought that we can't let this evidence in c tbc it contaiminates the process, sullies the robes. This is sort of a DP concept. Clearly they don't think this anymore, since we use it in all these diff stages except for trial. So there's been this huge shift in thinking - SC now says the sole purpose for an exclusionary rule is to deter the popo from committing a violation. B. Problems/alternatives 1. Exclusionary rule by definition operates counter to truth-seeking and LE a. Prevents consideration of evidence of guilty 2. Constitutional tort claim 3. Management of LE a. Administrative and legislative 4. Discussion/explanation a. Problems/alternatives: if we're excluding info, we're NOT excluding it bc we have questions about whether or not it's true; this operates counter to the idea of truth seeking. Another way of saying this: it's preventing the jury from hearing evidence of guilt.. b. What might work better: if everybody whose const rights were violated could just bring a const tort claim. Why does this not work so well: immunity. Const tort law is broken. c. Suggests an alt role for attorneys: management of LE (counsel); all sorts of other ways we can work to remedy const vioaltions other than tort claims, exclusionary rules. C. Exclusion depends on constitutional violation 1. Knock and announce a. Violation doesn't lead to exclusion b. No exclusionary rule 2. Discussion/explanation a. Exclusion depends on const violation. Diff rules for diff violations. Our main one: 4th amendment search and seizure violations. Distinct exclusionary rule FOR: knock and announce violations. Vefore conducting a search of a premises, popo are supposed to knock and announce. Sometimes cts give warrants that excuse knock and announce req. b. Knock and announce violation does NOT have an exclusionary rule. Aka popo can commit a knock and announce violation without impunity; might get disciplined, but there is no fourth amend remedy in the criminal defendant's trial.

I. Suspicionless Seizure A. If no suspicion (or there is insufficient suspicion for a stop): 1. Observation request for consent 2. Etc. B. Isolated random stop? 1. These are not allowed a. No suspicion b. Law enforcement's interest minimal c. Unreasonable intrusion on liberty 2. These may not be allowed, BUT: a. Roadblock possibly allowed b. Ironic C. What are the police allowed to do without any suspicion: sit and watch you, drive around neighborhoods. 1. They don't have to just sit at the station and wait for crime. 2. What else could they do: if they wanted to talk to you or search your car without suspicion, they might ask you for consent to talk to you or search your car. a. Of course, a normal person would feel pressured to acquiesce. 3. Are the police allowed to engage in an isolated, random stop with no suspicion? No. a. Why might you argue that an isolated, super random stop isn't that big of a deal, that we should let the police do it: i. We might be able to tell the public to be careful, there WILL be random searches. ii. Another argument: if you're not doing anything wrong, what do you have to worry about. iii. Another thought: if we think there's a lot of crime, random stops might be good. b. The issue: if it was truly random, the police wouldn't be targeting somebody. There's an argument, there, that that would be ok. i. The problem is that we don't believe that whatever happened is really random; we're afraid that if we let the police to do random stops, something subliminally in their head will cause them to stop that person. We don't want to give them that loophole.

A. Roadblocks 1. Roadblocks are permitted if there is a specific, primary purpose a. These purposes should be related to the use of the roadway i. Sobriety checkpoints = roadway safety ii. Registration checkpoint = motor vehicle laws iii. Investigatory checkpoint for specific accident (Illinois v Lidster = fatal hit and run) 2. Roadblocks are ALSO permitted if: a. There's an imminent terrorist attack b. There's a fleeing, dangerous criminal c. Or there are other exigent circumstances/emergencies 3. BUT suspicionless seizures/roadblocks are NOT permitted if the primary purpose is general crime control a. Why: fear that having a special exception will swallow the general rule that seizure requires individualized suspicion 4. So: we have this general rule: no random stops without suspicion. But what is allowed: a roadblock. a. Why is it ironic you can't do an isolated, random stop but you can do a roadblock: i. it's not ok to stop one random person, but it's ok if you're stopping everyone. It's weird because we're intruding on more liberties, but we are taking the factor of the officer's bias off of the table. b. So our rule is: a roadblock is permitted IF there's a primary purpose (like looking for runk drivers) that's NOT just stopping crimes/criminals. i. PLUS, it HAS to do with the roads somehow. § So what could that be: a sobriety checkpoint, a license/registration checkpoint; could also have an investigatory checkpoint for a specific accident, look for people that could've seen what happened. 5. Note: say the police are up to something that's not allowed, like immigration: if they use license/registration checkpoint, that could give rise to reasonable suspicion to look for something else. a. Aka, there's a loophole; as long as they say they want to do that checkpoint, they can also do all this other stuff. 6. The court has also indicated we also allow roadblocks if there was an imminent attack. a. Also a bunch of courts have said if the police are working to capture fleeing, dangerous criminals, roadblocks are allowed. Same with other major emergencies. b. Note that these three aren't related to the road at all; it's just crime control. In this case, the court just wants what is reasonable. i. Aka, there's an argument that all of this is sufficiently reasonable to create a roadblock. § BUT roadblocks are not permitted for just general crime control. We'd be treating everyone like a criminal. We don't want to let the police just do whatever. Court has also said that roadblocks, some other searches are part of "special needs

A. Electronic surveillance issues 1. Statutorily controlled a. Providing greater protection than required by fourth amendment 2. Electronic surveillance a. Particularity b. On-going c. Minimization d. Notice e. Covert entry 3. Explanation a. There's almost no 4th amend law about electronic development. That's bc in the 50s, SC said this is a big 4th amnd problem, and states responded by passing statutes that regulated electronic surveillance more intensely than the amend did. So almost all surveillance law is statutory. Regulated by statutes. Statutes provide greater protection than the 4th amend. The const just sets a floor, minimum rights you have, but you have greater rights bc of statutes. b. Statutes say: popo need particularity in terms of what they're listening for; can listen only for particular types of info. Can do on-going surveillance, but if hear something that's not crime, are supposed to turn down volume, not listen, purge recordings then and just keep suspicious parts. c. Theoretically, you're supposed to give your target notice of any warrant you have for surveillance. Practically, that's not the case - giving notice would alert them; covert surveillance warrants remain secret. Warrants also tend to allow covert entry, like to plant bugs.

A. Specifics 1. Pen Register a. Allowed - no fourth amendment concern b. Dialed telephone numbers c. Logic: shared info B. Tracking 1. Brief electronic tracking a. Generally allowed - no fourth amendment concern 1) Movement on open roads 2) = publicly-observable info b. Not allowed 1) Unobservable info 2) Pervasive surveillance c. Note: 1) Analyze installation of device 2. Explanation a. Tracking: are popo allowed to engage in electronic tracking - yes. The popo can engage in brief electronic tracking. As long as popo are monitoring movement on open roads through hypothetically public info. CANNOT use device to monitor something happening inside your house, warehouse, storage unit. Can only track publicly observable info. Also run afoul of 4th amend of engaging in pervasive surveillance, not brief. C. Installation of device 1. Cannot intrude on privacy rights 2. Cannot intrude on property rights 3. Installation by law enforcement a. No - Jones 4. Third party a. Yes - Knotts & Karo 5. If the popo install the device, we have a property problem. If a third party installs the device, according to Knotts and Karo, we're ok. That's weird. D. Some general notes 1. If you want privacy rights regarding the gov, do something in your house; basically every thing else, you don't have an objective expectation 2. Tracking: tracking DATA doesn't really pose a privacy concern. Not allowed: if gov has tracker on something in your car, you go inside your own garage, it'd be improper to monitor you inside there. But if monitoring your car in public, that's fair game. Not allowed: tracking movements inside your house 3. BUT the installation of the device is a big issue, according to Jones. If popo install it, that's a property rights violation, according to Jones. 4. Jones is inconsistent with Knotts and Karo. Jones says: if popo install device, that's a problem; Knotts and Karo tell us that if a third party does it, it's ok. That's problematic, but that's what we've got.

I. Administrative Search A. Administrative Search 1. Search for governmental or regulatory purposes a. Not directly related to criminal law enforcement/investigation b. Another example of "special needs" 2. Explanation a. There are a lot of fed agencies that come to your house. If they see something, they are allowed to tell popo 1) Ex: meter readers. Who might come in a more specific way: mail carriers. Inspector, if you're having work done on your house. If they're just doing their normal job, they're allowed to be there, and there's nothing controversial about them handing over info to the popo. 2) BUT if popo say, if, while you're delivering mail could you keep your eyes open - haven't done anything wrong bc mail carrier IS there every day. 3) The thought here is that regularly, gov employees are coming to your house, nothing controversial about that. 4) Do gov employees ever come around to poke around, your business to do so? Yeah. Ex: if you're running a restaurant, a health inspector will come deliberately to poke around your restaurant. That's allowed. Sometimes the gov searches your property for a non-LE purpose. 5) Is gov allowed to do a normal or regulatory purpose? Yeah. There's no 4th amend concern about that would - only have that concern if doing it for criminal LE. As long as gov agency is doing a normal, routine investigation not connected to LE, can search.

A. Standard for Administrative Search 1. Administrative observation a. "visit" vs. "search" b. License for presence 2. Administrative "Warrant" a. For a "search" b. Norm with exceptions c. General exception for pervasively regulated businesses 1) Eg, "surprise inspection" 3. Explanation a. Some cases about admin observation distinguish between "visit" vs "search." Ex mail carrier - coming for a v specific purpose, have a license to do that. b. Ct also sometimes talks about an admin warrant. Makes no sense. SC says if an agency is coming to property to do a search, needs an admin warrant. This is the health inspection. Weird bc inspector doesn't need PC. All the inspector needs is evidence there's a health problem OR six months are up, you get an inspection every six months. Exception for pervasively regulated businesses, like restaurants. Aka in big cities, inspectors can make surprise visits. 1) Aka ct nonsensically say would need admin warrant for a search, but there are a lot of exceptions to this. This is weird. B. Standards 1. "PC" a. Based on reasonable legislative or administrative standards for inspection b. No need for individualized suspicion of crime c. More general 1) Passage of time 2) Nature of place inspected 3) Area conditions 2. Explanation a. If we're talking about PC for a warrant: could be trad PC, or could be a legislative finding, a generalized finding of facts by the legislature. STOP calling this PC. This is ridiculous conflation of concepts. This is something completely diff than trad PC; PC is NOT a generalized finding that an industry needs inspection. b. Where do we have these generalized findings: poultry plants, restaurants, lots of rats in a particular neighborhood (area condition allows for inspection). c. Special needs searches: schools, public employees, probationers. d. Gov employers are allowed to search lockers of employees. Are allowed to do drug tests of emps. SC says that if it's a gov employer, treat the employer as an employer, only distantly as the gov. aka, can do what employers in general can do. e. Next thought: people on parole or probation have given up their rights - gov can search bodies, houses of those people almost at will, same thing with inmates. Almost no privacy rights in play for them. f. In all of these exs, SC is just doing 4th amendment balancing.

I. Standards of Suspicion (for Terry frisk/stop_ A. More than a frisk/permissibility of a more invasive or intrusive search: 1. Amount/specificity of suspicion is beyond a mere reasonable suspicion 2. Dangerousness of pat down/frisk 3. Limited natural of additional intrusion 4. Conduct of suspect 5. So: The rule we're working with for suspicion is just what's reasonable. That's a flexible standard. Can the officers ever do a slightly more invasive search? Yeah, if they have additional suspicion a. Adams v. Williams: this is a case in which an officer gets a tip that a suspect is armed, gun in waistband; he walks to car, reaches right into his waistband and pulls it out. Why is that more invasive than Terry: not just a pat down, the gun was NOT in the outer layer of his clothing. Court sustained this bc the officer had a reliable tip providing very specific info about the location, type of weapon. b. In short: Terry is not an absolute formula; it's flexible; will weight the intrusiveness of the search against the amount of suspicion the police have. c. To do ANY frisk though, police have to have suspicion that the person is armed and dangerous. More invasive, need extra suspicion d. Court will look at how invasive the frisk was; not likely though that court would ever allow a strip search. Looking at something like Adams v. white, where we had more than a pat down. e. Regularly, we get the additional suspicion during the encounter - we evaluate the suspicion throughout the time that the officer and suspect spend together. i. Officer might og just ask an innocent question; while the person is answering the question, level of suspicion rises. We are NOT just looking at a single moment - looking at the totality of the circumstances. Officer can begin without terry suspicion, conduct of suspect could give rise to reasonable suspicion. Then could give extra suspion that leads to move invasive frisk ii. Standard language that applies to reasonable suspicion (probable cause is a much higher level/standard than reasonable suspicion). Reasonable suspicion - doesn't necessarily have to mean more likely than not. § If you're looking at the facts, officer has a lot of suspicion, "a lot" is reasonable suspicion. A hunch is just a tiny little amount of suspicion. There is no rule for how much percentage-wise suspicion the officer has.

A. Suspicion must be based on objective, specific, and articulable facts (not inchoate suspicion or a hunch) AND reasonable inferences based on law enforcement's experience 1. Courts will always say officer needs objective, specific, articulable facts for reasponable suspicion: articulable is probably the most important. Officer has to be able to explain their suspicion. If he can explain a hunch, that works. Objective: if officer can articulate it, explain it, it's based on observations he made. Specific: officer has to give more than generalities, like "they were acting suspicious." 2. Legit inferences are allowed, ex "this person is an ex con in for murder; ex cons in for murder are usually dangerous." Ex: daytime robberties are likely to be committed while armed B. Suspicion must occur before the law enforcement's conduct; we do not allow for after the fact rationalization 1. Do NOT engage in fact analysis of facts that occurred after the frisk. Only look at facts, aggregate, right before the frisk occurs. C. Suspicion is evaluated form the pov of an officer in the field 1. "Objective" is looked at from the pov of an officer in the field. Aka, don't think about a dispassionate, unscared person. That's a really generous standard for officers - they're in a high stress job, life is a risk. Takes into account the need for split-second judgment

A. Misplaced Confidence 1. Otherwise, seemingly private conduct a. Shared with third party 1) Or undercover agent b. Third party may share with law enforcement 2. Explanation a. Misplaced confidence: assumption of the risk, third party sharing b. If you engage in stuff you think is private, but a third party is there, you assume the risk that that party might go to the popo. You have trusted somebody that might screw you over. 1) Ex: bad guy leader meets with two lieutenants at his house, think they're having a private meeting. Who might one of those lieutenants be: an informant. Might also be a cop. 2) So there's no news here. If you're doing something you think is privat,e but other people know, they might betray you. 3) Extension of this: to third party businesses. Popo can get info from your bank, phone company. NOT a fourth amendment violation.

A. Third Party Search 1. Third party search a. No distinct analysis 2. Generally a. If no government action 1) Third party may share with government b. If third party acting on behalf of government: 1) Treat as search by government 3. Explanation a. What if you lived next door to a really snoopy neighbor, who decides to come into your house and poke around: they're allowed to do that, that's called a third party search. If a third party comes, searches, we're not doing anything new. This wasn't the popo. You can sue them, but they can still give their info to the popo. b. Problem with this: might encourage vigilantism. Another problem: what if popo suggest to someone that them breaking in would be helpful. They might plant an idea in your head that you snooping would be helpful, though they don't ask directly for your help. If popo DO cause someone to act on their behalf, treat that third party action as a popo action.

I. Consent A. Consent 1. No warrant necessary 2. No particular level of suspicion needed 3. Burden of proof is on law enforcement a. Has to be freely and voluntarily given 1) Not mere acquiescence to authority 2) Initial claim of warrant by law enforcement (generally vitiates any "consent") 3) No duress or coercion 4. Explanation/discussion a. Popo can ask for consent at any time, don't need any level of suspicion to ask for consent. 1) Can stop you on the street, ask if they can talk to you. If you say yes, what have popo accomplished: a detention. If you stop, agree to talk to popo, it's like a consent detention. 2) If popo ask can we search your car, you say yes, popo have accomplished a search. b. This is incredibly powerful. This is why popo should probably always ask. 1) Issue: most of us, if popo ask, we will instinctively say yes, feel like we have to say yes. c. For consent, burden of proof is on LE. But this isn't weird, it's ALWAYS on LE. 1) LE has to convince us that consent was freely and voluntarily given, that it wasn't mere acquiescence to authority. Must be actual consent, not just silence. d. Any claim that popo have warrant eviscerates consent. If popo tell suspect they have warrant before asking for consent, there's no such thing as consent after that. 1) Note that's DIFF than popo saying we might go get a warrant. 2) Also: no duress or coercion. NOTE that the absent of coercion does NOT equaly freely given, still have to prove that

A. Voluntariness 1. Totality of the circumstances 2. Requirement of knowledge of option: a. Federal: 1) No requirement that suspect knows: i. Free to leave ii. Free to refuse b. State: 1) Some states impose this requirement 3. Explanation/discussion a. Voluntariness: Look at totality of the circumstances. b. Note that some states require popo to say "you can refuse" when they ask for consent. Some states have req that. But no fed req to do that. c. There is evidence that if states make popo say this, doesn't reduce the amount of times consent is given. B. Undermining voluntariness 1. Factors (that are some evidence that might defeat an argument by popo there was voluntariness): a. Show of force 1) Show of force: popo walk up holding a gun. Show that the popo is getting ready to use physical force. b. Number of officers 1) Number of officers: one person v. four officers, there's sort of an implied threat of physical threat there just by the number of officers. c. Repetitive requests 1) Repetitive requests: suggests that popo have ignored you saying 'no.' d. Overbearing/intimidation 1) Overbearing/intimidation: it's not the words on the page, it's how they're said. If popo yells at you, doesn't matter what he's actually saying. Tone of voice can make a request sound like an order. e. Remember: totality of circumstances

I. Arrest Details A. Later-Invalidated Law 1. Arrest based on currently-valid law, later invalidated: still a valid arrest 2. Law enforcement allowed to enforce laws until declared unconstitutional a. Unless grossly/flagrantly unconstitutional to a reasonably prudent person. 3. Explanation a. What if the police arrests under a law that was later invalid: this is an ok arrest. b. Remember that we do not do post hoc analysis; exception: unless law is so grossly unconstitutional that it is apparent to a reasonably prudent person that it is grossly unconstitutional. 1) Hall thinks that this is a silly rule. The Supreme Court has never elaborated on this standard. B. Necessity of Arrest Warrant? 1. Three options: a. Arrest with a warrant 1) Allows arrest and prolonged detention b. Arrest with probable cause and without a warrant 1) Allows for "brief" detention i. Followed by release based on law enforcement or prosecutorial discretion 2) Allows prolonged detention only if: i. Followed by prompt judicial determination of probable cause 2. Length of permissible brief detention: 48 hours is presumptively valid. 3. Explanation: a. Does an officer have to have a warrant to arrest someone? There are options for this: 1) 1) An officer can arrest with a warrant. i. This is the best option. Here, we are not just letting the police make a decision on the floor. If the police arrest with a warrant, the arrest is presumptively valid period since we have this presumption of probable cause this allows for prolonged detention. 2) 2) Arrest with probable cause and without a warrant. i. If there is an arrest without a warrant, need to get the suspect before a judge as soon as possible to determine probable cause. This option allows for brief detention. "Brief" =48 hours is presumably valid. The suspect can rebut this presumption period up to 72 hours is also allowed for, say, a holiday weekend.

A. Warrantless Arrest in Home 1. Entry into home for arrest without warrant presumptively unreasonable 2. Arrest warrant implies authority to enter suspect's dwelling 3. But: knocking and waiting without warrant 4. Explanation a. Can the police make warrantless arrests in your home? Usually no. Exceptions to this are a lot: 1) The police can arrest you in your home if they have a warrant also they can arrest you if you let them in. 2) They can also arrest by hiding or waiting until you come out of your house. 3) Also they can simply wait until you leave your house. 4) Also the police can enter your home if there are exigent circumstances. b. Exigent circumstances basically mean that there is an emergency. B. Exigent Circumstances 1. Exigent circumstances overcome presumption against entry without warrant a. Burden on government b. Factors: 1) Gravity of underlying offense 2) Hot pursuit 3) Threat to public safety/dangerousness 4) Investigation - preservation/destruction of evidence 2. Explanation a. There are certain factors that play into whether or not there exigent circumstances that will allow the police to enter your house to arrest you: 1) 1) Gravity of the underlying offense. 2) 2) Hot pursuit. The police don't have to just stop a headlong chase just because you shut your door. They are allowed to follow you inside. 3) 3) If there is a threat to public safety more dangerousness. The default example of this is that if you have a hostage or the criminal is in a house with little kids. 4) 4) The most common factor is that a police can enter your home to arrest you if they feel that they need to do so to prevent the destruction of evidence. C. Knock and Announce 1. Knock and announce v. forced entry - K&A is required, even if police have a warrant 2. Exceptions: case-by-case, flexible, reasonableness 3. Standard: a. Reasonable suspicion that knocking and announcing would be: 1) Dangerous - threat of violence 2) Futile 3) Inhibit effective investigation i. Preservation/destruction of evidence 4. Explanation: a. The police are supposed to knock and announce before entering your home even if there's an emergency. We want people to know it's the police. b. Exception is: if knocking and announcing would be dangerous futile or inhibit the investigation or give the suspect time to destroy evidence. c. An example when this would be futile is if the criminal is in an empty warehouse.

A. Suspicionless stops are also permissible for groups and individuals at: 1. International borders 2. Security checks (airports, courthouses) ("Special Needs") i. Similar searches of individuals/groups at airports, courthouses. ii. Court, again, calls all of this "special needs." This is silly; what's a better reason to check airports and courthouses: implied consent § Note that this works at airports and stadiums, but not necessarily courthouses - sometimes you have to go there

A. What constitutes reasonable suspicion: 1. Three things need to be considered: a. More than a mere hunch b. More than permissible protests or permissible attempts to disengage c. More than a refusal to provide identification 2. What constitutes reasonable suspicion: there's a spectrum from zero suspicion to you being 100% sure the suspect did it. a. On the spectrum, officer can have some little bit of suspicion that isn't reasonable. We're pretty far along before that turns reasonable. b. A hunch doesn't count, even if we know in real life some people's hunches are really good. c. We need something articulable, based on facts. 3. Also: a suspect who says to officer "I refuse to answer your questions," which Drayton says suspects can do, does NOT increase the officer's level of suspicion under our rules. a. Why: because they're just exercising their rights to do so. b. Note, though, that this isn't the way the world really works. i. Note that British police, some states require the police to tell people that they have the right to not answer their questions

I. 6th Amendment Right to Counsel and Identification Procedures A. Transition 1. Early stages of investigation: a. Find a suspect b. Find evidence 2. Alter stages of investigation a. Continue investigation b. Questioning c. Identification of suspect by witnesses d. Suspect charged 3. Discussion a. Today, we switch from the in-the-field stage of CP to the later stages. Dramatically set of doctrines in play. No longer really focused on 4th amendment all, instead on the 6th amendment. B. 6th amendment right to counsel 1. Mainly a trial right 2. But - protects defendant during interrogation a. No interrogation of accused regarding charged offenses without counsel present or without permission 3. Issues: a. When does 6th amendment RTC attach? b. What other LE conduct does it prevent? 4. Discussion a. 6th amendment is mainly a trial right. 1) What does it have to do with investigation? In 60s, SC was struggling with this stage of the process. We get several doctrines, then, that build up to Miranda rights. 2) SC has said in order for you to have effective trial counsel, counsel need to be able to do certain things in the investigation process. For example, Counsel needs to be present at the moment when witness identified the D to effectively question that witness at trial. i. 6th applies to a live identification of the suspect after suspect has been charged ii. Counsel cannot rep a defendant at trial if counsel wasn't present during a live wintess procedure during the identification process. Aka, lawyer needs to see how the id took place. That makes sense, but that's a really narrow slice of the pie. 3) In short: no interrogation of accused regarding charged offenses without counsel present or without permission

A. when does 6th amendment RTC attach? 1. Commencement of prosecution a. Adversarial judicial proceeding b. Suspect becomes "the accused" c. NOT at the grand jury stage 2. Discussion/explanation a. How early in process does 6th attach? After we have a prosecution that's started, after the first adversarial judicial proceeding. 1) So typically the first, initial appearance at a hearing 2) When it doesn't apply: during the grand jury stage, bc grand jury is not adversarial, just investigatory. i. Aka, as soon as we have charges plus a first proceeding. 3) Not a super complicated thought. 6th apples as soon as someone has been charged such that we have a prosecution. 4) For our purposes: can LE do id procedures at this point? LE cannot do a live id procedure after the right to counsel has attached without counsel present. i. SO: LE can conduct a line up - a corporeal id procedure B. "Line up" 1. "Line up" after RTC attached: a. LE may conduct a line up 1) A corporeal identification procedure 2) Witness identification of live suspect b. Only if: counsel is present (or counsel consents) c. Why: 1) Critical stage of proceedings 2) Confrontation of witnesses 3) Potential contamination of identification at trial 2. BUT: a. Line up or show up without counsel before proceedings commence? 1) No 6th amendment RTC violation 3. Explanation/discussion a. Counsel should never consent to a line up without them present- should ALWAYS be present to see if procedure is conducted properly, assess witness's confidence of their id of the D. 1) Why: SC says it's a critical stage of the proceedings - Hall disagrees, why is a lineup so special aside from every other stage of investigatory process? b. This right only applies, to Ds, after 6th amendment attaches. c. This right applies only to live id procedures, like line ups or show ups (informal line up, witness randomly sees person, says that's them). 1) Does NOT apply to photo arrays. 2) Also, D counsel can't stop id from happening, just have the right to be present. C. Photographic identification 1. Non-corporeal id without counsel a. Before 6th amendment RTC attaches: no claim b. After 6th amendment RTC attaches: 1) No violation of RTC 2) Because no confrontation ii. Hall says this doesn't make sense to him - why wouldn't it also apply at other moments in addition to just live id proceedings 2. Explanation a. LE's solution for id procedures if they don't want counsel around: a photo array id. 1) Process: put together a board of five or six photos, one of which is the suspect, and show it to a witness. i. Alt, show witness a mugshot book. Far, far more common than a live id procedure. Can always do this, both before and after 6th amend attaches. b. NOTE: as a D, you only have RTC AFTER 6th attaches AND at a live id procedure. 1) ONLY attaches after suspect becomes a defendant. 2) Can do live line up before 6th attaches, photos before 6th, photos after 6th attaches. 3) ONLY have const rights in a live id process after 6th attaches.

Quiz 2

Quiz 2: question 1 - sometimes people will be doing insurance checks and find drunks; if it is valid, it's still valid if they find that other evidence. The only question is whether the og checkpoint was valid. Question 2 - B. Question 3 - courthouses are special needs, so this is permissible. (NOTE: it may be that you expect a yes answer, but if they all give wrong reasons, look for a 'no' answer that has a qualifier). D. Question 4 - our first thought should be that there is no reasonable suspicion, so cannot detain. The officer is just observing. He doesn't need reasonable suspicion. B wasn't what we were expecting, but this answer is saying that the officer acted appropriately. B, therefore, is an okay answer, it's in the running. Answer C is wrong because he did NOT need reasonable suspicion to do what he did. Answer D just wasn't great; therefore, even if B isn't great, B is correct. Question 5 - this situation is MORE like an isolated random stop than a checkpoint, which is what the SC has approved. The "even if" qualifier for B doesn't NOT erode the 'no' part of the answer. Answer is B.

A. Minority Shareholder Protections 1. Inspection right 2. Cumulative voting a. DGCL Section 214: Cumulative voting. The certification of incorporation of any corp may provide that at all elections of directors of the corp, or at elections held under specified circumstances, each holder of stock or of any class or classes or of a series or series thereof shall be entitled to as many votes as shall equal the number of votes which (except for such provision as to cumulative voting) such holder would be entitled to cast for the election of directors with respect to such ohlder's shares of stock multiplied by the number of directors to be elected by such holder, and that such holder may cast all of such votes for a single director of may distribute them among the number to be voted for, or for any two or more of them as such holder may see fit. 3. Voting trust/agreement a. MBCA section 7.30 VOTING TRUSTS: one or more shareholders may create a voting trust, conferring ona trustee the right to vote or otherwise act for them, by signing an agreement setting out the provisions of the trust (which may include anything consistent with its purpose) and transferring their shares to the trustee) b. MBCA section 7.31, VOTING AGREEMENTS: two or more shareholders may provide for the manner in which they will vote their share by signing an agreement for that purpose. A voting agreement created under this section is SPECIFICALLY ENFORCEABLE c. Ringling v. ringling bros. 1) Shareholder's pooling agreement: i. Edith (315) ii. Aubrey (315) iii. Vote for five chosen by agreement or arbitrator iv. John (370) elects 2. 2) Aubrey breaks ranks 3) Court specifically enforces agreement and orders a new election 4. Preemptive right a. Preemptive right/preemption often discussed in tandem with dilution b. Preemptive right in plain English: When stock is issued, shareholders have the right to purchase the number of newly issued shares necessary to maintain their current ownership percentage c. DGCL 102(b): articles may contain such provisions as may be desired granting to the holders of the stock of the corporation, or the holders of any class or or series of a class thereof, the preemptive right to subscribe to any or all additional issues of stock of the corp of any or all classes or series thereof, or to any securities of the corp convertible into such stock. no stockholder shall have any preemptive right to subscribe to an additional issue of stock or to any security convertible into such stock unless, and except to the extent that, such right is expressly granted to such stockholder in the certificate of incorporation. d. Review slides discussion preemption and dilution e. When, in preemption and dilution, there is NO ownership or economic dilution: 1) 1.5 million shares outstanding (.70 cents per share) i. Shareholder A, 700,000 shares - 700,000*.70 + 490,000 ii. Shareholder A 350,000 shares - 350,000*.70 + 245,000 iii. Shareholder B 300,000 shares - 300,000*.70 + 210,000 iv. Shareholder B 150,000 shares - 150,000*.70 +105,000 MBCA section 6.30:

SEE image FOR: inspection right

A. Curtilage and "open fields" 1. Explanation a. Open fields: Don't look at these words, open fields, and give them normal English meaning. 1) This is a pure term of art, has nothing to do with openness, whether it's an open field. 2) Means a place where you have no expectation of privacy 3) Any area on the surface of the planet that's not within your curtilage is an open field 4) Ex: your driveway, front law, back lawn including patio, swimming pool. None of those are inside your premises.

a. Curtilage: area in the house, RIGHT around the house. 1) Ex: bushes outside your bedroom window. 2) NOT curtilage: unattached garage, front porch. 3) Possible trepasss by LE: not relevant to privacy rights analysis. You cannot subvert legit LE investigation by putting up a bunch of no trespassing signs. i. Can't keep them from walking across your land. They're allowed to walk up to your door, knock. ii. You cannot stop them from doing that by putting up no trespassing signs. iii. SC MIGHT be about to limit this bc of Jones, but they haven't yet.

A. Special Needs Searches 1. Does not apply if immediate objective is general crime control a. Schools, public employees, probationers 2. 4th amendment balancing a. No bright line rule b. State interest vs. private interest 3. School searches a. No warrant, just reasonableness 1) At inception 2) Scope reasonably related to initial justification 3) Deference to school administration

a. Explanation 1) TLO case: how much evidence did school have that TLO was smoking in bathroom: not a lot. Is moking in bathroom a crime: no, just a violation of school policy. SC basically says that the principal had reasonable suspicion of this violation of school rules, that allowed him to search TLO, bc it was reasonable to think she'd hide cigarettes in her purse. Ct just says lower standard of suspicion, doesn't need to be crime, school officials can do anything that is reasonable. 2) SO: all ct is doing here is reasonableness. 3) What about locker searches: those are also reasonable - either bc school does it every six months, or bc have some small suspicion of a violation of a school rule. School HAS to have this level of suspicion at the beginning of the search. We WILL evaluate the scope of the intrusion. If scope is really aggressive, a strip search, not worried that there was a search, but the concern was searching someone's underwear. 4) Ct in this area of the law is giving a lot of deference to school officials.

a. Explanation 1) TLO case: how much evidence did school have that TLO was smoking in bathroom: not a lot. Is moking in bathroom a crime: no, just a violation of school policy. SC basically says that the principal had reasonable suspicion of this violation of school rules, that allowed him to search TLO, bc it was reasonable to think she'd hide cigarettes in her purse. Ct just says lower standard of suspicion, doesn't need to be crime, school officials can do anything that is reasonable. 2) SO: all ct is doing here is reasonableness. 3) What about locker searches: those are also reasonable - either bc school does it every six months, or bc have some small suspicion of a violation of a school rule. School HAS to have this level of suspicion at the beginning of the search. We WILL evaluate the scope of the intrusion. If scope is really aggressive, a strip search, not worried that there was a search, but the concern was searching someone's underwear. Ct in this area of the law is giving a lot of deference to school officials.

A. Identification statutes 1. Why is this is a problem? a. Bootstrap less than reasonable suspicion into grounds for a stop or arrest i. Bootstrapping is the idea that we don't want a rule that will allow an officer to convert otherwise innocent conduct into wider criminal suspicion. b. Danger is that there will be unconstrainted officer discretion 2. ID laws are permissible only if: a. Arrest is allowed only if request for identification is reasonably related to the circumstances that justified the stop. Refusal to provide ID ALSO does not, under our rules, give rise to suspicion.

a. If we don't believe in a national id, our thought is we really don't want the police to have the ability to demand an id and have the ability to turn a harmless encounter into a criminal one. b. Also, again, we're worried about giving the police unconstrained discretion. 1. So we end up with a messy rule. Court doesn't entirely ban id requests. We can have an id law, but officer is only allowed to arrest if the request for id is somehow related to the purpose of the stop. a. This is the result from Kibble. Request for ID has to be related, somehow, to the stop. 2. What kind of stop where officer could regularly ask for id: traffic violations. a. Can the officer stop you on the street and ask for id, arrest you for refusal? Not usually, but they might can if they're trying to match you with a suspect description. 3. Note: One issue is that police do NOT have to ask you why they're asking for your id.

1. Exit strategies a. Buy-outs 1) Mandatory buy-out: death, disability or involuntary termination (Valuation?) 2) Tag-along or co-sale rights 3) Shotgun clause: offer to buy from or sell to other owner on specified terms (595-96) 4) Right of first refusal: terms of sale to third party offered first to corporation/other owners (546-47) 5) Right of first offer: if offer to corporation/other owners declined, sale to third party permitted on no better terms b. Shareholders' agreement (ex) 1) 4. Put options. 4.1 Death. For the 180 days immediately following Beckman's death, the personal representative of Beckman's estate shall have the option to require the company to buy all shares formerly owned by Beckman at the price and on the terms provided for in the Section 4. (NOTE: Need valuation method!!!). in the event of Beckman's death, unless the context otherwise requires, the term "Beckman" in the agreement shall be deemed to include such personal representative. 4.5 Purchase price. The purchase price for shares sold under this Section 4 shall be the value per share determined by appraisal as of the last day of the month immediately preceding the exercise of the option and shall be based on the greater of the company's liquidation or going concern value. The appraiser shall be selected by Beckman and the cost of the appraisal shall be paid by the company. The appraiser shall not apply a marketability or minority discount in determining the price per share. c. Tag-along or co-sale rights: 1) Controlling shareholder cannot sell unless minority shareholder shares will be purchased. 2) Control premium? Valuation? Number of controlling shares sold? 3) Shareholders' agreement (ex): i. If S proposes to sell any of his shares, he must give written notice of the sale to Beckman, at least 30 days prior to its closing. The notice must indicate the percentage of the total number of shares of the company made by S that will be sold or transferred and the proposed price and terms. Within 20 days after the receipt of this notice, Beckman may elect to sell the same percentage of her shares at the price and on the terms specified in the notice; provided, however, that if S is proposing to sell shares amounting to a majority stake in the company, Beckman may elect to sell all of her shares at the price and on the terms specified in the notice. If Beckman makes such election, S must purchase or otherwise acquire the shares in a transaction closed simultaneously with S's sale of shares unless the person purchasing S's shares agrees to purchase Beckman's shares in the same transaction. 4) Tag along provisions: you don't want to be stuck with a new partner you don't know, you don't like; so you can say that if you buy x amount of S's stock, you have to also buy out Y. note that you don't have to exercise this if you actually like the new partner/maj shareholder. Keeps the minority guy also from sneaking out, leaving the other shareholders with a bad guy.

a. Minority shareholder protections - shotgun provisions 1) Ex: Corp worth 100k. the company is worth 100k. either party can require that the other buy them out or be bought out at that valuation. Smith owns 30%, Jones ahs 70%. What is Smith has no cash? 2) Shotgun provision: you cut, I shoot. One person triggers it, the other person decides if they want to own the whole company or sell out. That's a crude resolution - what if Smith has no cash, but the equity has tons of cash? This can be used to lowball Smith, so Smith can't afford to buy, will have to sell under this provision. Structure: one party gets to tell another party they're going to have to decide to buy more stock or sell theirs. b. Right of first refusal 1) Timeline: Jill negotiates offering price with third party. Jill delivers offer notice to company. Thirty days. Other shareholders receive offer notice if company does not buy all shares. Another thirty days. Other shareholders submit orders. Company sends notice of its and other shareholders' purchases. Ten days - purchasing shareholders meet terms. Closing. Five days - Jill sells unpurchased shares to third party. 2) Right of first refusal: Jill is subject to right of first refusal. This right means: Jack, the owner, gets to buy first if Jill wants to sell. Has to bring to Jack first, tell him the price. What MB doesn't like about his ex: burden is on Jill to track down shareholders. That's not a prob if small co, only a few of them. But thinks if it's a big corp, corp needs to do it. 3) In practice, third parties probably won't want to invest time in negotiating with Jill if they know the corp could just buy them all up 4) Right of first refusal: shares may not be sold to a third party unless the person who owns the right has declined to buy at the price at which the third party buys them. 5) Break down right of first refusal: timeline: Jill negotiates offering price with a third party. Then Jill has to go to maj shareholder, maj has to reject an option to buy before she can sell. 2) Jill delivers offer notice to company. The delivery of the notice will begin the time period maj has to accept or refuse. 3) other shareholders receive offer notice if co doesn't buy all shares. Want to do this asap after corp doesn't buy. 4) thirty days. 5) other shareholders submit order. Their thirty days won't start until they've had notice. 6) co sends notice of its and other shareholders' purchases. 5)purchasing shareholders meet terms. 7) then you'll have a period of time where Jill can sell whatever shares are left over. That will also have a time limit - don't want her just sitting on them. Expiration date by which she has to close. SO: all that the third party might get is what's left over at the end.

A. Dog Sniff 1. Dog sniff of vehicle (Caballes) 1) During legitimate stop 2) No additional intrusion 2. Dog sniff as evidence (Harris) a. Normal totality of circumstances analysis 3. Dog sniff of house (Jardines) a. Depends on location b. Curtilage analysis 4. Explanation a. One way to think about dog sniff is to think of it as a high tech thing. Ct seems to have a whole series of specialized tests for dog sniffs. Ct seems to have some particular interest in this. b. Earliest case we have: Caballes: if we have a dog sniff of a vehicle in the course of an otherwise legit stop (suspicion or citation stop), is ok. Not an intrusion as long as it doesn't extend the stop to an impermissible limit (in terms of time). 1) Dog is just getting info from the outside of the car, not searching the inside of car - searching stuff that has been emitted by the car. Can't prolong detention, give info about car abuout which suspect had reasonable expectation of privacy - just sniffing the outside air. c. Next case we get Harris: analyzing not the intrusion by the dog; instead, we say the dog sniffs, dog alerted, what level of evidence does that give popo. 1) One possibility: it's a quantum of evidence, it's something, not a hunch; next possibility is that it's reasonable suspicion. 2) Alt: sniff gets us to probable cause. 3) Harris, ct says we'd analyze the dog just like any other source of info that the popo has. Treat the dog like an informant - ask how detailed is info (not great thoughts here - dogs typically trained to sniff a group of illegal drugs, or explosives), veracity (how often is the dog correct). 4) In short: we're going to ask how well-trained the dog is. If veteran, what's his track record. If rookie, ask how well it was trained, how well does it do in class. Depending on that factor, may get to reasonable suspicion or probable cause. We're treating the dog like an expert.

a. Next case: Jardines: popo bring a drug dog up to someone's front door, it alerts. Why is this not a search of your house if popo come up, knock, look in your window and see dead body: not a search - a mail carrier would stand there. 1) We know it's not unusual for people to stand there - bc you have a welcome mat, doorbell. The only way we could potentially get somewhere else is if you have a no solicitation sign, gate. 2) So our normal thought is that the popo are allowed to come to your front door. SC says, though, if they bring a drug dog to your door, that's a problem. Hall thinks this rests on where they bring the dog. If dog is in driveway, alerts forty feet from house, probably don't have a case. 3) Jardines happens when the dog is right at front door. Ct says something weird in this case: says that popo invaded the curtilage. 4) Ex: bushes outside bathroom window is in the curtilage, private just like inside house - another ex is outdoor shower. Absent something like that, get used to the fact there's no much outside your house that's in the curtilage. Outside of your house is an "open field" for legal purposes. 5) Front door is within the curtilage for the purposes of the drug dog. (but apparently ONLY for the dog???). weird - SC says something is curtilage for some purpose, but not another. 6) This is stupid. We get a weird rule form this case. Ct is just trying to protect what the popo can do to your house. 7) What might be a less private location where Jardines might not apply, where we could have a dog sniff: carport. Maybe we could extend Jardines to your driveway - too far from your house to trigger anything like curtilage. 8) Thought: if SC fell out about Jardines front door, what other places are like front door where we could say you couldn't have a drug sniffing dog. Generally, except for these cases, no const worries about drug dogs.

a. Expansion: we really mean "plain" any sense: view, hearing, smell, touch. If popo is legit in your house, standing there talking with you, puts hand on a table, table is a surprising temperature, that'd be plain touch. Didn't move table for purpose of making an observation, touched it in a permissible way. 1) View and hearing are the two sense most likely to lead to evidence. 2) Plain smell: implicated often in drug cases, DUI cases 3) Officer touches doorknob, finds that it is hot - just happened to find something. 4) If there legit, finds evidence, that evidence is fair game b. Plain view doctrine 1) Not about gaining info, is about actual seizure of property. Don't mix this up with concept of plain vie. 2) There are three reqs for this: 1) officer has to see object first from a lawful vantage point. 2) popo has to have the right to physically access that area/aka, walk over to the item 3) has to be able to tell that the nature of the object is subject to seizure immediately - aka has to be able to see without further manipulation the thing you're looking at is something you'd be allowed to seize. Thought: as soon as you see that, you've got PC. 3) Instrumentality of crime: requires some extra evidence, if, say, it's just a gun. There might be some things that are obvious instrumentalities: ex boobytraps (has no legal purpose). Evidence: bloody shirt. 4) Why would popo have right of physical access if he sees dope in a dorm room from the hallway: i. officer could have, at any point, arrested the student - could have arrested him even before he saw the drugs. Officer is allowed to arrest the student, and because he could walk across the rom to do that, had the right to walk over to also walk over and grab the dope. ii. Contrast to if there was a noise complaint, doesn't know what room it came from: could be in lawful vantage point, see the same things, but absent other facts, couldn't walk across to the room (though could ask for access, might have authority if an employee of university) 5) If officer just sees a dead body in your house: can't barge in. has to go get a warrant. 6) So the plain view doctrine is a specific exception to not having to get a warrant to get evidence Note that there would still be an exigency exception in the case of a search warrant - aka if you see somebody about to move a body

a. United states v. Jacobsen: 1) package at FedEx accidentally broke open. White powder spilled out, but it had been wrapped in like eight layers. Called DEA. DEA has a field testing kit that they pull out. To conduct a field test, take some of the powder, destroy it in field testing kit. Determines that it's cocaine. What was weird in this case: they weren't entirely sure what it was, not like a bunch of grenades fell out. Also: they seized it, not a lot, but enough to test. SC is like ok. So this is interesting: seems like it's a dramatic expansion, bc DEA got to seize the property in order to test it to determine it's nature. Was NOT immediately apparent. Instead, DEA had to seize it, test it. So we're just violating that part of the rule. 2) This case stands for the proposition that it's ok to test the contents of something suspicious, that ocmplies with the plain view doctrine. Blows the idea of 'immediate' out of the water. Popo were still in a lawful advantage point here, bc FedEx invited them. They had right of access bc the white powder spilled out, SOMEBODY had to clean it up, why not the DEA - somebody is going to have to touch it, might as well be DEA. 3) What does ct say in this case: "immediately apparent" doesn't mean what we thought it means - means either literally immediately, OR the legal equivalent of immediately apparent. Legal equivalent of immediately apparent: very quick testing of it. Ran reliable field test that required only a trace amount of the substance. Field test = quick results. That's legal equivalent. 4) Also said that destroying a part of it is fine to do a quick, reliable field test 5) What may shift our analysis: if more than a trace amount for testing. In the case of DUIs, Hall says your breath probably wouldn't be a trace amount

1. So: Tennessee v. Garner has been framed as a great win against popo violence. BUT the test still isn't that intense, remarkably. 2. Renn v. Connar a. What is the P's claim: popo used excessive force on him. Broke his foot. They beat him up, roughed him up, and it loked really violent, not that they were just investigating a suspect b. How would we prove popo were really beating him up, not just detaining him: 1) They would say that he was acting unusually, didn't think he was a diabetic, thought he was seriously intoxicated instead of mental illness. P's argument: they had him seriously outnumbered, so why did the interaction have to be so violent. Also: when they meet the suspect, they're cussing him out. This gives rise to a good argument that popo were motivated by malice or anger. 2) Not a situation where officers arrived, suspect had injured another officer, where there is some sense of why the officers were angry. Looks like popo had suspect outnumbered, suspect hasn't done something that horrible, yet officers are using really foul language, which suggests that they are angry and malicious. That's a really good P's argument.

a. What does SC say to this whole intense P's argument: 1) We aren't allowed to make arguments about what's in popo's head. All of the normal thoughts we're having about how to litigate is irrelevant. Can't present that evidence to jury. Only issue is what would a reaonble officer have done in these circumstances - subjective intent of officer isn't relevant. 2) Whren v. U.S. i. Tells us that we can't look at subjective intent. That's how SC does 4th amendment analysis. ii. Do not ask what these officers actually thought, just as what a reasonable officer on the scene would think - look at facts, circumstances known to officers, what was actually in their heads. iii. Doesn't even matter if popo say racial, sexist things - that's subjective evidence, and we're doing an objective analysis to see if a reasonable officer would have used force or deadly force. iv. NO evidence of the popo's subjective intent. v. This standard does nothing to regulate popo brutaility - it seems to effectively allow it, in fact by saying can't bring forth evidence of sadism and malice. vi. The thought the lower courts were having before this case is that brutality should've been looked at through 4th amendment, but through due process. Popo are stepping out of their LE role, not doing 4th amendment stuff, but instead are trampling on your fundamental rights. vii. But SC is saying that the only way you can address an excessive force claim is through 4th amendment - do not have a due process claim. We ened to question if con law could be doing better.

1. Note: there's a problem with just saying a suspect was "nervous and evasive." a. In Wardlow, the police said that since suspect was running, he was "engaging in evasive behavior" and appeared nervous. This phrase is problematic.

i. We don't have any SC case addressing this case. But there are lots of articles talking about this phrase being bad. ii. If we're looking for specific, articulable facts: most people are nervous talking to the police. Another problem with this: is this specific, objective, articulable - some people just read as nervous, while some people always read as chill. iii. Also: nervous is a conclusion - don't describe what factors led them to decide they were nervous. We need to be worried about implicit bias, or them not liking that person specifically. In short: nervous and evasive are problematic words. We need to know the specific facts that led you to believe this.

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