Criminal Procedure Examples Only

a man in airport is talking very lowly and sneakily on phone; cop moves closer and attempts to hear what he is saying by craning neck does the intent of the eavesdropper matter?

Court says the objective reasonableness of the police conduct, not the intent, is what matters If you knowingly (but not intentionally) expose your conversation to the public, you lose

Police receive an anonymous call saying Silver Ford F-150 truck with license 56tf7i just ran caller off the road Police see truck minutes later, pull it over, smell marijuana, search truck, find drugs Defendant: I was seized without reasonable suspicion

Sup Ct.: police corroborated detail about truck, had to act promptly, used 911 system; evidence admitted (People v. Navarette, 2014) Stop permitted even though was not least intrusive way to investigate reckless driving; court says this is okay

Police see me leaning against a building. I see the police, I turn and run. Police chase me, see me throw something into bushes (turns out to be cocaine). Police tackle me, pat me down, find illegal gun.​

They probably had reasonable suspicion to stop upon D's flight (Wardlow), but even if not, they definitely had RS to stop after seeing D throw the cocaine. The flight + the throwing of the cocaine = RS to search D for weapons.

But what if police sent friend to ask me if I owned illegal gun, had him wear hidden microphone, and recorded our conversation?

This is basically U.S. v. White, no search

Dan is a passenger in a car driven by Ann. The police pull Ann over for speeding. Has Dan been seized?

Yes

D refuses to answer the door when police arrive to execute arrest warrant; can police break down the door?

Yes The arrest warrant gives them authority to enter my home to effect the arrest, and that authority includes the authority to use reasonable force to enter my home

Girlfriend answers door and says "our apartment" and has a key. Apparent authority?

Yes (Il. v. Rodriguez)

Does the Automobile Exception still apply if you live exclusively in your car?

Yes it does

Single suitcase used by me and my wife, I pack contraband. While we are together, police ask permission to search, she consents, I say no, they search anyway.​ Can I successfully move to suppress?​

Yes, Georgia v. Randolph​ (2006)

Police see gun on floorboards of car when walking by (same as seeing marijuana plant in window of home). Admissible?

Yes, if the evidence can be seen from a place where the police have a right to be

Police enter my home to arrest me pursuant to an arrest warrant; while there they see drugs on kitchen table, seize them. Drugs admissible?

Yes, plain view doctrine This is the significance of the plain view doctrine; if police are lawfully/properly in my home, anything that meets the 3 requirements of the plain view doctrine can be seized This is why it matters whether the arrest was lawful or not; if I'm illegally arrested (no warrant or exception, or invalid warrant), the evidence found as a result of the arrest is tainted

Police want to enter D's home, arrest him for a felony; warrant required?

Yes, this is the prototypical case (Payton) If I'm in my home, the police can't enter "my castle" without judicial authorization What if they just had a search warrant? Looking for a thing, and I'm a thing...but the typical way would be an arrest warrant An arrest warrant is the same thing in a slightly different circumstance as a search warrant—the procedure for obtaining it is the same

Police arrested D just outside his home Police went into home to conduct protective sweep, saw a gun ammunition clip on top of a dresser

Court: "We have also allowed protective sweeps, ... when an arrest 'occurs just outside the home,' because such an arrest 'can pose an equally serious threat to arresting officers as one that occurs in the home.'" Held: police did not have reasonable suspicion to believe that anyone else was present, and so no authority to enter home - evidence was suppressed. U.S. v. Delgado Perez (CA1, 2017)--Buie Case

Found: Shotgun under seat, shells in glove box D not driver or owner of car

Court: no standing; D didn't have reasonable expectation of privacy in car that was searched

D moves marijuana garden inside fenced yard, police climb tree and look over fence

Courts have said if it can be seen from trees, neighbors' houses, etc. then no reasonable expectation - police are seeing from a place where they have a right to be; we might not expect it, but nevertheless, the tree is on public property (or at least not on D's property)

police: "we have a report that someone looking like you just bought cocaine. Do you mind if we look in your pocketbook? D (who has never used drugs): sure Police are not really looking for drugs, but for a stolen iPhone in a green scratched case, which they find in the pocketbook

Courts mixed on consent by deception

D is waiting for subway car, police tapped him on shoulder, asked him to step back a few feet from track, ask about contents of backpack; D admits there is an illegal gun

D would argue that this is Hodari D.—laying on of hands is a seizure Court says no, this is not a seizure; police's physical contact was not done to assert control, just to get him to step back from the tracks Police often put requests in the form of a question so that it's consensual

Police are searching the law school for evidence to use against Leipold; do they need a warrant?

If evidence is to be used against employee (as opposed to the business or the owner of the business), Defendant must have reasonable expectation of privacy in area searched for a warrant to be required Courts would say that Leipold does not have a reasonable expectation of privacy our shared classroom; he does in his office, however

Police arrest D on street, suspect he is a drug seller​. While D in custody, cell phone rings, caller ID says "My Dealer"; can police go through contacts to get information? ​

No Does it matter if D is in car at time of arrest? No, the type of information (cell phone data) and the scope of the privacy intrusion is what matters Riley and Wurie (2014): Under the Fourth Amendment, the government may not conduct a warrantless search of the contents of a cell phone seized incident to an arrest absent exigent circumstances.

Police see Sam rob a store; they chase him, he runs into a house, police follow. House belongs to Sam; police arrest Sam in his home without a warrant, seize the gun

No problem here: Yes, PC Sam committed a crime Yes, PC that exigency/emergency existed - Police allowed in house to search due to hot pursuit - Sam could destroy or hide gun if cops went to get warrant

Single suitcase used by me and my wife, I pack contraband. Out of my presence, police ask wife permission to search, she consents. ​ Can I successfully move to suppress?​

No, Search valid, U.S. v. Matlock (1974)​

Police arrest me without a warrant in a public park and find a gun in my pocket. 4A violation?

No. In public, no warrant required as long as PC (Watson) Whether they had time to get a warrant or not doesn't matter Arrests in public don't require an arrest warrant partly because I'm mobile, but more because I don't have an expectation of privacy in public that's invaded by the arrest

Police have plenty of time to get arrest warrant, but simply wait until I leave home so they can arrest me in public. Warrant required?

No. Too bad!

Officer Olson states in affidavit that she has "reliable information from a credible person that narcotics are being stored at the home on 35 Main St." Should the magistrate judge issue a search warrant for the home?

No; you can't just say that the person is credible and the info is reliable

Anonymous call to the police [paraphrased]: a lot of specific information about a suspected bank robber that would seem to suggest he robbed the bank—traded in car, seen going to and from scene, backpack, etc.

Not enough; police have not corroborated any of the information given But what if police do corroborate some or most of the facts? Yes, then it's a different story But none of these things that suspect is reported doing are illegal? "Innocent" facts can constitute probable cause

Police think I am smuggling illegal assault rifles in my van. When I am mowing my back yard, police search van in garage, find gun

Not okay - automobile exception doesn't get police inside garage (curtilage), so they would need another reason to search

Local justice of the peace is paid $25 by county for every search warrant issued

Not ok—can't be financial incentive to find PC But compare with paying $25 per warrant application considered Still concerns here, but courts have said it's okay

Police have warrant to search H's home for drugs. As they enter kitchen, H tilts down laptop screen. Police re-open, see child porn

Not within the plain view doctrine; they had to manipulate it (open screen) to see that it was incriminating This is probably not okay under Hicks (stereo equipment case) Police could frame the warrant as looking for evidence of "drug trafficking" instead of just "drugs" and would then be able to open the laptop

Police see plants from tree and then hop fence to grab it

Now, 4A is implicated by seizure (curtilage analysis below)

Police find marijuana garden in middle of farmer's soybean field after entering without warrant

Open fields doctrine*: reasonable people understand that open fields aren't within scope of 4A **"open fields" means "my land"; it doesn't have to be open or a field Defendant could sue for trespass, but there's no 4A violation Oliver (1984)

Police: "Can we search your apartment?​ D: "Yes. I have nothing to hide"​ (Officer reaches for kitchen drawer) Defendant: "OMG! You can't search the drawers; anywhere else but not the drawers!"​ Officer opens drawer, finds drugs.​

Search invalid: if search depends on consent, D controls scope of search, and can withdraw consent in whole or in part at any time​

Variation: Police reconstructed shredded trash

Shredded doesn't make a difference; doesn't defeat the core principle that you lose expectation of privacy in garbage when you put it at curb

(1) police walk into my garage, see an obviously illegal gun on shelf in plain sight, seize it (2) what if they can view it from the street while they're driving by? (3) But what if after viewing it from the street they then walk in and seize without warrant?

(1) no lawful reason to be in garage, therefore it's an illegal search item to be seized under plain view doctrine must be in plain view from a lawful vantage point (2) Now, the gun is in plain view from a lawful vantage point, but they do not have lawful right of access to it (plain view doctrine doesn't "get you in the door"); If they go get a warrant they'll be good (3) probably an illegal search/seizure But you could argue exigency—saw an automatic weapon in an open garage in a neighborhood—presents community safety concern—must be seized ASAP Does the gun have to actually be dangerous? - Cops don't have to be right that an exigency exists, they just have to have probable cause that an exigency exists

Warrant affidavit: "request to search the last house on the left on State St. in Sanford, Maine"

"last house on the left" depends which direction you're coming from (among other things) they should have just put an address

Police arrest D in living room, he is not wearing a shirt. Police lead suspect to bedroom, but before he is allowed to touch anything, police open bureau drawers, find a gun. Gun admissible?

"my wingspan can move"; "my lunging distance" can change depending on where I am in the house On these exact facts, courts have said it's perfectly okay for police to do a search incident because there could be destructible evidence or a gun in the bureau where the D is grabbing a shirt from

[diagram from slides] Officers P1 & P2 stop A and B in A's car for speeding​ (1) A and B ordered out of car onto roadside​ (2) P1 asks A for registration, A says it is in glove box, starts to move to get it; P1 stops him, gets into car himself, opens glove box, finds drugs​ (3) P2 sees P1 getting into car, immediately pats down B, finds gun; B admits it is not licensed​

(1) A and B ordered out of car onto roadside​ - OK, no suspicion required​ (2) P1 asks A for registration, A says it is in glove box, starts to move to get it; P1 stops him, gets into car himself, opens glove box, finds drugs​ - OK - police can do Terry search of car if have RS D might get access to a weapon (Michigan v. Long)​ (3) P2 sees P1 getting into car, immediately pats down B, finds gun; B admits it is not licensed​ - probably OK; if P2 reasonably believes there is weapon in car - relying on P1's Terry search - P2 probably has RS

Do the following constitute knowing exposure to the public? (1) Police wait in parking lot, follow me to drug house? (2) Police follow me everywhere I go for 2 weeks? (3) Police track my movements with satellite 24/7? (4) What about street cameras in major cities? Is monitoring the same intersection in Chicago the same as following someone around and thus deserving of the same privacy protections? Does the technology change things somehow? Police are still doing the same thing—tracking my public movements.

(1) Not a search (2) probably not a search; in public and where you go in public is exposed to the public (3) probably a search (4) Probably not

Police search suitcase at bus station, find drugs, charge Clyde (1) Clyde: "I want to move to suppress, but I don't want to admit suitcase is mine" (2) Clyde: I want to take the stand in my own defense and say "that is not my suitcase"

(1) SCOTUS: D can admit ownership interest in area searched without having it used against him to prove guilt - this was a real problem (2) Gov't can use your admission in a suppression motion (that something is yours) to impeach (but not prove guilt) at trial

Police think I am smuggling illegal assault rifles in my van. Police wait until my sister is driving my van, stop and search, find gun

- Automobile exception (and probable cause to search it) runs with vehicle, not with person. So police can search for the brother's guns that they had PC for Argument: What if not PC to pull over sister? - Doesn't matter. It's her 4A right, not yours. You can't say "you violated my rights by stopping my sister" - But sister might have her own constitutional argument for illegal stop

Helicopter flies over house at 400 ft. and look inside curtilage (Riley)

- Court says that California v. Ciraolo controls this case. Held that the inspection was not a 4A search - Yard in curtilage, fence shielded yard from observation from the street, and occupant had subjective expectation of privacy; however, this expectation was not reasonable

Variation: undercover has microphone in backpack, leaves it in room while he goes to the bathroom, records me making incriminating statements to 3d party while out of room

- Courts have differed on this - Some think that this is basically the police dropping a bug in your room, is a 4A search (emphasis on being in the home) - Some think that it's no different from you confiding in a friend

Police think I am smuggling illegal assault rifles in my van. Police know I am out of state in NY, find car in airport parking, search, find cocaine in glove box

- Okay for them to search without a warrant (with PC) - Not okay to look in glove box - assault rifles wouldn't fit in glove box and they only have PC for assault rifles

Police enter 3rd party's home with an arrest warrant, but no search warrant, arrest D and find a gun on his person. Gun suppressed?

- Probably. But there's a lot of complications. - You can't go into someone else's home with an arrest warrant for me; if you're going to enter someone else's home who is not being arrested, you need a search warrant; in other words, to come search for me if it requires entering someone else's home, you need a search warrant - Arrest warrant isn't good enough to protect the privacy interests of a 3rd party 1. Entry into 3rd party home illegal without search warrant (Steagald) 2. If D has expectation of privacy in place, gun may be suppressed - If evidence is going to be used against me, I would say that I have a privacy interest in, say, my parents' home; that privacy interest was violated; I have standing because my rights were violated 3. If D has no expectation of privacy in place, no standing to object to illegal entry However, if the police enter your home to arrest me with just an arrest warrant for me, see cocaine on your table and arrest you, you can challenge that because the entry into your home was illegal, your rights were violated, and they're trying to use the evidence against you

[Acevedo Facts]. Police open trunk, immediately spot paper bag, open it, find no contraband, (Acevedo's lunch). Search the rest of trunk, find transparent bags of cocaine under blanket.

- Suppressed, but not an obvious case; this one is more ambiguous and there are arguments either way - "being wrong is not evidence that supports PC"; being wrong about the location of the drugs doesn't give you PC to search rest of car

[Acevedo Facts]. Police open trunk, do not see the paper bag, so they search the rest of the trunk, find a briefcase. Open briefcase, find gun, police know D is a felon.

- maybe paper bag was in the briefcase - our PC ran to paper bag; we are entitled to search anywhere in the car where that paper bag might be Probably admitted

[Acevedo Facts]. Police stop car, search D's passenger P's pocketbook, find drugs, charge P

- once automobile exception applies, you can search passengers and their possessions - if this is the Acevedo facts, however, how could the paper bag be in the passenger's pocketbook? - Probably suppressed on these grounds, because PC did not run to full car, but not suppressed on grounds of her being a passenger This is a variation on Houghton: if there is PC to search car for contraband, police can search all containers, including passengers' personal belongings

[Acevedo Facts]. Police stop A before he enters car. They don't arrest him, but seize and open the paper bag, find drugs

- suppressed, Chadwick; police can seize containers outside of car, but cannot not search without warrant - once he gets into car with bag, police can both seize and search without warrant

Police have unconfirmed reports of planned terrorist attack on a bridge. They see me on an embankment at night near bridge, taking pictures, sketching, talking on phone. They approach, and I say I am art student. I try to leave and they detain. After 45 minutes of asking, I finally let them look in backpack, they find plans for bomb.​

Court said Terry stop valid; no fixed time limit as long as working diligently to confirm or dispel suspicions (U.S. v. Sharpe)​

[House blueprint from class slides] (1) Cash in Freezer? (2) ski mask on couch? (3) Police are waiting on squad car to transport D, standing with D near front door. Police open desk drawer and find a 2nd gun. Admissible?

1. Cash in freezer? - Admissible, but tread lightly here - You can see the potential for abuse—police lead D throughout the house as a pretense for searching more areas - Courts ask if police took the most direct, reasonable route out of the house - Fact-based—could D have really reached freezer? 2. Ski mask on couch? - This falls under PVD; police saw the object from a place they were entitled to be, taking the most direct route out of the house, had a right of access to the object (were already in the house legally pursuant to arrest warrant), and the incriminating nature of the object was readily apparent (they were arresting D for a bank robbery) 3. Police are waiting on squad car to transport D, standing with D near front door. Police open desk drawer and find a 2nd gun. Admissible? - Same analysis as with cash in freezer; is it within D's wingspan - Because my wingspan can move, Time 2 search radius can expand

Police walking through hall of apartment building, look through open door and see Sam asleep on couch, illegal weapon on his lap, officer uses information to get warrant (US v. Nevils)

4A rights aren't implicated because the officers were in a place they had a right to be and observed something from a vantage point they had a right to be at - this is not the plain view doctrine even though the gun was in "plain sight" - police were legitimately in hallway and saw something in plain sight - they used the info—seeing the gun—to get a warrant

White case (friend wearing hidden microphone)

A NOT implicated b/c D is knowingly exposing this information even if he doesn't intend to Court distinguishes from Katz (phone booth) even though some lower courts say microphone equals recording device in Katz You trusted your friend, it might have been reasonable, but he recorded it Defendant who trusts another knows the risk that the information will be disclosed to law enforcement; the presence of electronic recording does not change the calculus - Distinction between knowingly disclosing information and purposely disclosing information; knowledge is sufficient - 4A does not protect a "wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it" (U.S. v. Hoffa)

DEA approaches me at random in an airport DEA: can I talk to you Me: (stops walking) "who are you?" DEA: I'm the DEA. You smuggling any drugs today? Me: "No" DEA: would you step over here where it is not so noisy? (we move) You sure you don't have any drugs? Me: Damn. Yes, here they are

Actual submission to authority (Hodari D.) is a seizure; nothing I said up until that point increased/created reasonable suspicion; thus, seized without RS or PC

[Acevedo facts] (Acevedo came walking out of drug-dealers house with brown paper bag, which he placed in his trunk. Once he started driving, officers stopped him and searched bag) Police open trunk, immediately spot paper bag, open it, find MJ

Admitted into evidence; okay to search brown paper bag because PC runs to the bag!

Anonymous call: "person wearing blue outfit, black chain around neck, glasses, waiting for bus has a gun in a bag" Police confirm outfit; can they search?

An anonymous tip, standing alone, is not enough RS to justify a Terry stop (Florida v. J.L. 2000) Anonymous tips must be "suitably corroborated"; can't be mundane details that can be observed from public, like location and appearance

Police came to home to execute arrest warrant, D in southeast bedroom, came out of room, was handcuffed in living room, near front door. Evidence found in bedroom, police tried to justify under Buie

CA10: Buie not satisfied, evidence suppressed Court: search not justified under Part I of Buie, because bedroom not "immediately adjoining" place of arrest​ There was "a wall and hallway between Mr. Bagley and the southeast bedroom"​ "From the record, we cannot discern the length of the hallway or the distance between Mr. Bagley and the southeast bedroom. Thus, we lack enough information ... to characterize the southeast bedroom and Mr. Bagley's location as "adjacent." Leipold think this one is a little bit of an outlier; rooms are close enough to be considered "adjacent" U.S. v. Bagley (10th Cir. 2017)--Buie Case

Bonnie picks up hitchhiker, Clyde. Police pull over for speeding, pull both out of car. Police pat down Clyde for weapon, find a gun in jacket pocket, Clyde admits is unregistered.

Clyde has standing for search of his jacket—he was searched, the weapon was found on him (he has an objectively reasonable expectation of privacy in his own person), and it will be introduced against him, so he has standing

Armed robbery at McD's, police see Bonnie and Clyde walking down street. Police stop both, search Bonnie's backpack, find gun, want to introduce at trial against Clyde

Clyde owns gun Clyde does not have an objectively reasonable expectation of privacy in the place searched Just like the Katz test—same question of "do I have a 4A right that is implicated in what the police did" Clyde has no standing

[Acevedo Facts]. After find drugs in paper bag, search rest of trunk, find transparent bags of cocaine under blanket.

Cocaine is suppressed under auto exception—they searched a place they didn't have PC for; PC was for paper bag only and not the whole trunk

Police: "Would you let me look in your backpack?"​ D: "OK" ​ Later in court D says he did not know that he could refuse​

Consent Valid​ Consent must be voluntary, but does not require an affirmative police showing that D knew he could refuse; just one factor to consider (Bustamonte)​

Police: "I am here to search your house, will you let me in?" ​ D: "Do you have a warrant?" ​ Police: "I can get one in 15 minutes, but if you make me do that, I will be very annoyed."​

Consent invalid​ Claim of authority to search normally undermines consent​ But compare with "I can apply for a warrant if I have to."

UC Police: "I am here from the cable TV company to hook up your free subscription to the 'All-Porn' channel." ​ D: "Please come in. And hurry."​ UC: [opens kitchen drawer] "Did you know that you have blood all over your butcher knife?"​

Consent probably not valid​ If evidence seen where repair worker likely to be, Hoffa line suggests consent valid, although courts mixed on entry by trick​ Search of drawers probably invalid, because not within scope of implied consent even for repair worker

Suspect is reputed drug dealer. Police want to search home for drugs but lack PC. But police have PC that D keeps illegal exotic animals in homes, so get search warrant, find drugs in couch seat cushions in basement

Cops would have to argue that drugs were found in places where they were legitimately looking for exotic animals Plain view discovery does not have to be inadvertent (Horton v. California, 1990), but still must be where right to search

Dave is walking in street, sees a policeman coming from other direction, so Dave turns and runs. Police yell "stop" and give chase, Dave throws his drugs out, police catch Dave and retrieve drugs from trash. Police had no warrant or reason to believe D involved in crime.

Dave loses, because (1) he did appear to think he was free to leave the encounter (he ran); and (2) from CA v. Hodari D (1991): some physical force applied to D; can be light OR assertion of authority by police to which D actually submits - if D had stopped when they said stop and THEN they had found the drugs, he might have a shot here - he had not yet been [illegally] seized when he tossed the drugs

Police get a 911 call, but there is only static on the line. So, they call back but get no answer—just more static (this happens sometimes). A squad car is sent to house to check (no lights or siren), no answer at door, no signs of life inside. Police enter through unlocked back door and find child porn.

Defendant would argue warrantless search without exigent circumstances was illegal and thus evidence of child porn should be suppressed Police would argue that there was exigency because someone called 911 and they weren't able to find out exactly what the emergency was, but they had reason to believe one existed - Counter: police didn't treat it like some big emergency; they came in with no lights or siren - Rebuttal to Counter: didn't want to scare away the bad guys who could be hiding inside This falls under "The Community Caretaking Function" - "law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury" - Brigham City v. Stuart Court did not find exigent circumstances here because police didn't act like it was an emergency (Martinez)—surprising to Leipold - Not all courts may come out this way But what if there was a rule that the police could use exigent circumstances to enter and render assistance and then if later the court determined no exigency, they would not be allowed to use any of the evidence?

Police think I am smuggling illegal assault rifles in my van. I park my van at Walmart and enter store. Police search without warrant while I'm in store, find gun under blanket on back seat

Defendant's argument: suppress gun, product of illegal S/S This is okay; you don't need a warrant to search a car, but must have PC that evidence of crime or contraband is in car

Police think I am smuggling illegal assault rifles in my van. Police know I am out of state in NY, find car in airport parking, search, find guns under blanket

Doesn't change much, but the mobility-urgency argument tied to the warrant requirement is irrelevant here, because they had plenty of time to get a warrant Mobility requirement doesn't really matter; even though it doesn't apply in this case, police can still search with PC and without warrant

Police arrest Dan on the street because he has an outstanding arrest warrant for vandalism. The police find an open cigarette pack in Dan's pants pocket. The police look in the pack and find drugs. Drugs admissible? (Robinson) facts

Drugs admissible. Search incident to arrest includes the person's clothes Was it dispositive that police noted in Robinson that it didn't "feel like" there were cigarettes in the pack and then searched further? - Defense argument: this fits into the container line of cases; police need a search warrant - Good argument; On these facts, though, you lose The point is that the police don't need any level of suspicion that there's destructible evidence or a weapon in there; just like the search "around me" is automatic, the search "of me" is automatic.

Police enter my home to arrest me pursuant to an arrest warrant at 1:00 PM on a Monday afternoon. I am not there, but they see drugs on kitchen table, seize them. Drugs admissible?

If you're going to use an arrest warrant as justification for being in my house and seeing the drugs on the table, there is an additional requirement that courts sometimes talk about that police must have a "reasonable belief" that I'm home at the time they execute the arrest warrant This standard isn't too high; don't have to see me through the window What about Sunday morning at 8 AM? Lots of people are in church at that time. As long as police don't "know" I'm in church (or otherwise not at home), which would make their belief that I'm home unreasonable, it's okay

Warrant issued by the US AG to search a suspected terrorist house

Impermissible—warrants must be issued by a "neutral and detached" judicial officer - A member of the judicial branch, although does not have to be a full judge; can be an Article III judge - Almost never can be a member of the executive branch; sometimes there's a loophole for mayors

Olson's affidavit says: "a reliable informant, who gave me information once before that led to a conviction, says that drugs are being sold at 35 Main St. The informant knows this because his sister sometimes buys there."

Implicating self or family in crime can enhance credibility

Olson's affidavit says: "I have been told by reliable source, who gave truthful information in a prior case, that Dunn bought cocaine a week ago and put it on the kitchen table in his apartment; the source was present when the sale was made"

Information is probably stale You have to have probable cause at the time of the search, not just at any time

D is not home. Officers go to neighbor's house, look into D's upstairs window with binoculars, see ski mask and gun described in robbery. Officers enter D's house and seize evidence

Invalid. Under PVD, police must have lawful right of access to evidence before can seize PVD is a seizure doctrine, not a search doctrine

Police find empty pill bottles belonging to someone else in my trash

Is trash at curb within curtilage? If it is, it doesn't matter whether there's a reasonable expectation of privacy Greenwood says no privacy interest in trash at curb

Warrant Affidavit: "Police may search for and seize offices of insurance company for 'documents related to claims submitted for health insurance proceeds that are not lawfully due to the claimant'"

Issue: how easy was it for police to be more precise in warrant's wording? Was the material seized contraband?

Police searching apartment pursuant to warrant that only lists stolen jewelry. Officer opens desk drawer, sees counterfeit money, seizes as evidence

Police are legitimately in premises, looking in a place they are entitled to look, and they see contraband and seize it—this is a classic plain view example Valid seizure

Police pull D over for speeding​ Before giving D a ticket, police check to see if D has outstanding warrants and if insurance is up to date​ Checking takes 10 minutes​ D has outstanding warrant, is arrested

Police can prolong a stop to check for traffic-related items, including outstanding warrants and insurance. This is perfectly okay.

Police pull D over for speeding​ Give D a ticket, then ask D's permission to walk drug dog (Floyd) around outside of car​ D refuses​ Police do it anyway, Floyd alerts for drugs, D arrested

Police cannot prolong a routine traffic stop to have a drug-sniffing dog walk around the vehicle. (Rodriguez, 2015). Here, once the reason for the stop (to issue a speeding ticket) ended, so did the authority to detain

Police have warrant to search for illegal weapons, open door to room and find $22 million

Police cannot seize. For PVD to apply, the incriminating nature of evidence has to be "readily apparent"

Police knock, D comes to door, police arrest him while standing in doorway without warrant and find bloody knife. Knife admissible?

Police knock, D comes to door, police arrest him while standing in doorway without warrant and find bloody knife. Knife admissible? Yes. "In the doorway" is a public place - S. Ct. (some cases) - hard to know what this means Courts of Appeals have decided cases on this issue that say: - If police reach inside and pull D out, 4A violation (CA8) - Some courts—if police order D from inside to outside, 4A violation because D "seized" inside the house (CA9). D actually submitted to police authority; the arrest happened on the porch, but the seizure happened inside my home - Some courts—4A only keeps police bodies outside the home, not voices; if police order D out and he comes out, no 4A violation (CA 5, CA7, and CA11) There are lots of cases like this

Sam runs through his house and out the back. The police see a stack of child porn on Sam's kitchen table, and seize it

Police were in house legitimately; once inside legitimately, they do not have to shield their eyes from seeing what they see (plain view doctrine)

Warrant Affidavit: "police may search the apartment of James Smith, Apt. #2, at 719 Main Street" police search Apt #2E (Sara Jones), find drugs; Smith was in #2W - Ms. Jones moves to suppress - was it objectively reasonable for police to believe that when they entered Apt. 2E they were in the correct apartment?

Potential facts: are the doors clearly numbered? Does it say the resident's name anywhere by mailbox or door? Defense argument: if the warrant said #2 and they saw a door that said #2E, that should have given them pause and made them realize that there were probably multiple "apartment 2's"

During traffic stop for speeding, police ask "can I search the car trunk?" ​ D: "OK"​ Police open unlocked suitcase in trunk, find drugs​

Probably OK, probably within scope of consent

Uniformed Police knock on door of apartment: "there is a report of a gas leak in the building - can we come in to see if you are about to blow up and die?"​ D: "Uh, OK."​ Police: "That is a fine looking machine gun on your couch."​

Probably not OK even if D knows it is police; consent not valid if based on fear of harm​ Probably OK if there really is a gas leak​

During traffic stop for speeding, police ask "can I search the car trunk?"​ D: "OK"​ Police open a locked suitcase in the trunk, find drugs​

Probably not OK, probably outside scope of consent, i.e., beyond what reasonable police officer understood as scope of permission​

D is driving, police turn on flashing lights, D pulls over; then throws drugs out window, hits officer

Pulling over after seeing flashing lights (police authority) is submission; yes seizure

Police arrest defendant on 1st floor, ask girlfriend to go with police to 2nd floor to get clothes for D. Once in bedroom, ask girlfriend consent to search; never ask D

Result: consent valid. D did not object, no duty on police to ask, and no evidence that police intentionally separated to get GF consent. U.S. v. Lopez (2nd Cir. 2008)

Police meet wife on lawn; she says husband assaulted her. Police enter house, where D orders them to leave. Police arrest D, and after he is gone, police obtain wife's consent to search, find evidence to use against D

Result: consent valid. Police intentionally separated, but for legitimate reason—they had PC to arrest him for domestic assault Fernandez v. California: the rule from Randolph only applies when the defendant is both present and objects to search of his home What if arrest is unlawful and it is later determined that police did not have PC? - Gives Defendant an argument that the police were illegitimately removing him from property to get wife's consent

High school tells police there is a rumor that 17 year-old Joe is going to shoot up the school. Police go to J's house, J and mother come outside to talk Police: can we talk inside your house? Mom: no Police: do you have any guns in the house Mom: I'm going back inside Police follow mom inside house, see evidence

Result? District court in this real case said reasonable for police to believe that situation presented a danger; CA9 reversed and said it was unreasonable for police to believe exigent circumstances existed; SCOTUS reverses and says it was reasonable for police to believe exigent circumstances existed (Huff v. City of Burbank/Ryburn v. Huff)

Olson is seeking a warrant to search Dunn's office; in her affidavit, O states: "I was told by Dunn's wife that Dunn always keeps some illegal drugs in his desk at work." When the magistrate questions Olson, asking why the wife is turning on Dunn, Olson states that the wife and Dunn are getting a divorce and are engaged in a custody battle

Supreme court has said in a couple cases that a motive to lie does not necessarily defeat probable cause Most people who report this kind of information have ulterior motives (everyone who calls Crimestoppers wants the reward $); Courts will never say that this totally defeats PC

Police see Sam rob a store; they chase him, he runs through a stranger's house and out the back. The police see cocaine on the table and arrest stranger.

The police are legitimately in stranger's house; this is okay - Reasonable because police are in stranger's house lawfully pursuant to exigent circumstances/hot pursuit - Evidence in plain view can then be seized

Police come to my house, Linda answers the door. Police ask if they can enter and look for illegal drugs; Linda says yes, directs them to medicine cabinet. Police find drugs, charge me. Linda was from Merry Maids, there to clean my house. I never gave Linda permission to let anyone in.

This is likely okay 1st question: Is it reasonable for police to assume that Linda has the authority to let people in given the maid car out front, uniform, etc.? - Can service people in my home or my minor children give consent? 2nd question: Do police actually know that it's someone that doesn't have authority to consent? - OK to search, if apparent authority and as long as police don't affirmatively know that it it's someone without authority Illinois v. Rodriguez (1990): apparent authority

Police see Dan approach a suspected drug dealer, exchange cash for a box; police approach Dan Police: what's in the box? Dan: none of your business Police: did you just buy drugs? Dan: I'm terminating this encounter and going about my business" (starts to walk away) Police grab Dan, open box, and find cocaine

This is not an arrest, but rather a seizure. At the time he was seized, the heroin had not been found, and there was no PC for the seizure. Are we allowing seizure on less than PC? Are the police justified in seizing Dan? This would be okay under Terry. Police definitely have RS.

Police to go house of suspected drug user without warrant or PC, pound on door and yell "this is the police, anyone doing drugs in here?" police hear people inside rushing around, hear flushing, so they enter and seize drugs.

This is okay because police didn't violate 4A (or threaten to violate 4A) in creating the exigency BUT if they had said "this is the police, anyone doing drugs in there? We're coming in!" this would not be okay because they threatened to violate 4A (by entering without warrant) in creating the exigency

Police enter Sam's apartment with an arrest warrant but he is not home. Worried that Sam has moved out, the police open a bureau drawer to see if Sam has packed his clothes. In the drawer is a bloody knife; the police use this information to get a search warrant, then seize the knife

This one is close; you can look for Sam with the arrest warrant and that justifies looking any place where he could legitimately be, which does not include the bureau drawer, but could include the closet

Police see Dan leaning against a building Police: what are you doing? Dan: I just bought some heroin Police: can I see? Dan: sure. Pretty nice, eh? shows heroin

This would fall under consent doctrine, rather than a Terry stop-and-frisk Once they see heroin, they have probable cause to arrest

I talk to best friend, swear him to secrecy, show him my illegal gun. On his own, best friend reports to police

Trick question: no state action, no Katz test, no issues here

Warrant Affidavit: "Police may search for and seize child pornography at 6 Weeman St. in Sanford, Maine, on or about [next] Tuesday, September 25, 2018 after 12:00 noon at which time child pornography is expected to be delivered to the above address"

anticipatory warrants are OK, as long as PC for both evidence and for triggering event (U.S. v. Grubbs) The triggering event in this case is the delivery BUT, consider staleness issue--how old is the information

O gets D's consent to search D's luggage at bus station. Inside luggage was a tin can marked "tamales in gravy." O shakes, can appears to contain dry substance, like salt. O opens can, finds methamphetamine.​

consent not valid; search was beyond what police reasonably should have anticipated the consent to cover; although D could have objected, when police destroy property, silence not consent U.S. v. Osage (10th Cir. 2000)​

Fixed border checkpoint very close to Canada driver slowed when he saw checkpoint, pulled into vegetable stand Police approached, saw two men each carrying small bag of green peppers Police looked in car, saw blanket covering something Brought in drug-sniffing dog (Tiko), found 145 lbs of marijuana

held: police had reasonable suspicion for detention "avoidance of a checkpoint alone is probably insufficient to establish reasonable suspicion. Motorists may intentionally avoid a checkpoint for any number of reasons unrelated to criminal activity. For example, some may wish to avoid the inconvenience and delay of being stopped. Others may find checkpoints stressful and prefer to avoid interactions with law enforcement when possible." "avoidance of a checkpoint is, however, a factor that can support a finding of reasonable suspicion when combined with other relevant circumstances" relevant circumstances would include how fake and unconvincing the decoy stop is—two dudes stopping at an abandoned produce stand is suspicious

a man in the airport within earshot of an off-duty cop talks about buying drugs on the phone

talking at a conversational volume in a public place = no reasonable expectation of privacy; most courts would say "too bad" even though he intended to keep it quiet and phone conversations usually are, talking that loud in a public place and expecting privacy would not be accepted as reasonable by society