UNM 1L Law Blog
Sunday, March 21, 2004
Torts Introduction
I. Chapter I. Introduction to Tort Liability

A. Prologue

1. The Nature of Tort Law

a. No satisfactory definition: There is no really useful definition of a “tort” which will allow all tortious conduct to be distinguished from non-tortious conduct. In fact, courts are constantly changing their view of what constitutes tortious conduct (usually by way of expansion of liability). The best that can be done is to identify a few of the main features and purposes of tort law:

(1) Compensation: The overall purpose of tort law is to compensate plaintiffs for unreasonable harm which they have sustained.

(a) Competing Policy Reasons:

i) Compensation for victims
ii) Deterrence: Deter accidents and defendants from taking risks
iii) Judicial administration: stare decisis, bright line rules for future cases
iv) Economic efficiency: it’s fair to make the defendant pay for the accident if it would have been cheaper for the defendant to have prevented the accident
v) Justice, fairness: underpins everything. Courts will ask “What is the fair result?”

B. When should unintended injury result in liability:

1. Shifting losses: The fundamental issue addressed by a system of tort liability for untended injury is when losses should be shifted from an injury victim to an injurer or some other source of compensation. The courts could apply a theory of strict liability by requiring people to pay for all harms they cause. In the alternative, the courts could require that people only pay for injuries they cause through their own negligence or fault.
Wednesday, March 17, 2004
Criminal Procedure
A. Defining Due Process – 14th Amendment

1. Methodology – determining “The Law of The Land,” see Hurtado

a. What is the national consensus?

i. State and Federal laws
ii. Judicial enactment
iii. Administrative bodies, other sources of law

b. Normative analysis – standard for allowing innovation
i. Fundamental Fairness
(a) The hollow sounding words – does this procedure uphold Justice, Truth, The American Way?
(b) Focuses on what police practices we should allow – how the state should relate to its citizens.
(c) “Shocks the Conscience” standard, see Rochin, Breithaupt
ii. Accuracy
(a) Is this procedure likely to convict innocent people?
(b) Inaccurate procedures are prima facie unfair, but accuracy alone does not prove constitutionality. See Brown.
(c) Dirty Uncle Alschuler: Accuracy is just a placeholder for reprehensible state action (fairness) and we should focus on that.
iii. Voluntariness
(a) Involuntary testimony violates Due Process. Unfair practices are prima facie involuntary; involuntary practices are prima facie unfair. See Brown, Ashcraft, Beecher, but see Breithaupt.
(b) Finding of voluntariness does not always prove constitutionality – Ashcraft, but see Miller v. Fenton
c. Rule: fundamental fairness is the standard, taking into account both accuracy and voluntariness in determining what is fundamentally fair.

2. Application of Due Process Methodology
a. Hurtado v. California
i. Due Process does not mandate a grand jury consideration for every criminal conviction
ii. Harlan Dissent – introduces concept of due process as “fundamental fairness”
b. Rochin v. California
i. Pumping stomach for pills “shocks the conscience”
ii. Though accurate, the practice is inadmissible because it offends “fair play and decency”
iii. Notable because majority uses Due Process instead of 5th or 4th Amendment
(a) This approach is overruled in Graham v. Connor
c. Breithaupt v. Abram, Warden
i. Removing blood from unconscious crash victim is admissible because it doesn’t “shock the conscience.”
ii. At first glance, seems to be violative of 5th amendment, but subsequent decisions indicate otherwise. At this time, 5th, 4th amendments didn’t apply to states.
iii. At any rate, case is decided according to 14th amendment. Hard to distinguish factually from Rochin, though the outcomes are opposite.
iv. Stands for principle that some types of evidence procured from D against his will are allowed.
d. Brown v. Mississippi
i. Physically compelled confessions are violative of Due Process.
ii. Tortured confessions offends fundamental justice because:
(a) Accuracy problem; torture “shocks the conscience,”
(b) Practice violates “fundamental fairness” – not just about accuracy but determining what is an acceptable use of state power.
iii. Proper appellate procedure is not followed; Court reverses anyway.
e. Beecher v. Alabama
i. Gunpoint confession is violative of Due Process because procedure is shocking, unfair; therefore involuntary.
f. Ashcraft v. Tennessee
i. Unfair practice (36 hour interrogation) renders confession involuntary, therefore violative of Due Process.
ii. Focuses on police practice that is inherently unfair, not the voluntariness of the individual circumstance.
g. Miller v. Fenton
i. Interrogation tom-foolery – Boyce tells Miller that old lady Margolin is dead, when in fact not – Gotcha!
(a) Intrinsic lie ok; extrinsic lie (If you confess I’ll let you go) per se not ok.
ii. Court finds against fundamental unfairness; considers whether confession itself was “voluntary,” instead of basing decision solely on the fairness of the practice in the abstract.
B. Pre-Miranda 5th Amendment/ 6th Amendment
1. Privilege against self-incrimination – 5th Amendment
a. “The State Can’t Make You Make It’s Case Against You”
b. Bram v. United States
i. Subject is denuded, put in “awkward position” and confesses.
ii. Confession violates 5th amendment – custodial interrogation is inherently coercive; 5th amendment protects silence against coercion.
(a) If silence creates an inference of guilt, then it is not really available, but the 5th amendment demands that it must be.
c. Vast Exceptions: otherwise constitutional interrogation, grand jury subpoenas, most personal records, examination of physical traits, electronic surveillance, blood (see Schmerber) etc.
d. Schmerber v. California
i. Petitioner forced to give blood test, but this does not constitute self-incrimination covered by 5th Amendment – not compelled to be a “witness against himself.”
ii. Holmes in Holt: 5th amendment prohibits “communication, not an exclusion of body evidence when it may be material.”
iii. Holding: the 4th amendment covers bodily intrusions, not the 5th. From these facts, 4th amendment was not violated, but it applies.
2. 6th Amendment Right to Attorney
a. Massiah v. United States
i. G-Men get incriminating evidence from D by listening to Schmidt Radio installed beneath D’s Studtz Bearcat. Evidence is excluded.
ii. Evidence violates 5th/6th amendments (really 6th amendment) because G-Men “deliberately elicited [evidence] from him after he had been indicted and in the absence of his retained counsel.”
b. 6th Amendment right attaches at arraignment – when proceedings originate. Police cannot question w/o attorney after that point, even through a third party and a Schmidt Radio.
3. A Hybrid Beast
a. Escobedo v. Illinois
i. D is arrested but not charged, and asks to see an attorney. He is denied, and lets slip that he is guilty of the Great Merkin Caper.
ii. Held: D’s 6th (!) amendment rights have been violated, even though the formal proceedings have not begun. Reasoning indicates that 5th (!) amendment right of silence cannot be maintained w/o attorney.
(a) Important: if it is a 6th amendment right, it is less easily waived; result would be fleets of jailhouse lawyers.
b. To the extent that Escobedo creates a pre-indictment 6th amendment right, it is overruled by Miranda; to the extent that it creates a 5th amendment right to attorney, it is supported by Miranda.
II. Miranda Doctrine
A. Ideal World Miranda
1. We want people who wish to remain silent to do so.
2. We want people who wish to speak to do so.
a. They may wish to confess
b. Or they may wish to prove themselves innocent
3. We don’t want people to speak if they wish to remain silent
B. Underlying Presumptions
1. Police custodial interrogation is inherently coercive
2. A 5th amendment violation occurs if a confession is in fact coerced
a. So a prophylaxis is needed to protect potential violations
b. It might exclude some confessions that were not coerced in fact.
C. Miranda v. Arizona
1. Procedural safeguards are needed to ensure that custodial interrogation does not coerce confession (because interrogation is inherently coercive)
a. Prior to questioning, subject must be warned of
i. Right to remain silent
ii. If waived, the information given may be used against him
iii. Right to an attorney
b. Subject can waive the rights, but if i. or ii. is asserted, questioning must stop.
2. All of these rights (even the right to attorney) stem from the 5th amendment.
a. Without the ability to consult with an attorney, subject may not properly be able to waive right to silence. D might confess while he really wants to remain silent.
b. Right is not only for a one time consultation, but to have counsel present during interrogation.
c. Indigents get lawyers appointed to them (the very finest too)
d. BUT police stations aren’t required to have “station house lawyers”
i. After warnings, the right to attorney must be asserted
ii. White’s problem (in dissent)
(a) “How can the Court ever accept his negative answer to the question of whether he wants to consult his retained counsel or counsel whom the court will appoint?”
(b) If interrogation is inherently compulsive, won’t this answer be compulsed?
(c) This is a more serious problem if there is in fact a high standard of proof for waiver – then “station house lawyers” are in fact required. However, subsequent case law indicates that the standard of proof for waiver isn’t all that high.
3. Interrogation – required for Miranda to apply
a. Direct questioning designed to elicit a response
b. Or, words or actions that the officers should have known were reasonably likely to elicit an incriminating response. (an objective test)
i. Rhode Island v. Innis
(a) Respondent requests to speak to lawyer after receiving Miranda warnings. While driving R to police station, Patrolman Jackass says to his partner:
• “Boy it sure would be a shame if a handicapped cripple child fell upon this here missing shotgun, as handicapped cripple children are apt to shoot themselves.”
• Respondent interrupts to show them where the shotgun is. Handicapped cripple children throughout the world rejoice.
(b) Held: Respondent was not interrogated – the patrolmen should not necessarily have known that their conversation was reasonably likely to elicit an incriminating response. A finding of “subtle compulsion” is not enough.
ii. Normal procedures (booking, fingerprinting) are also not protected by Miranda (court follows Schmerber)
(a) During fingerprinting Johnny Moron says: “Man I’m screwed.” Officer Jackass says: “Why whatever for?” Johnny says: “Because I’m guilty of thieving the Cremaster Jewels.”
• Not an interrogation
(b) Police officer stare-down: this is not direct questioning, but it doesn’t have to be. Issue: is this likely to elicit an incriminating response? Court says no.
iii. Illinois v. Perkins
(a) Johnny Moron confesses murdering Baby Lindberg to undercover cop/ cellmate/ pocket-holder while in jail. Although this is technically police questioning while in custody, Miranda doesn’t apply.
(b) Reason for Miranda was to overcome “inherently compelling pressures” of the interrogation room. Since Johnny Moron doesn’t know that his prison bitch is a cop, he’s not subject to such pressures. Silence would not have been incriminating.
• But see Fulminate; United States v. Henry (where 6th amendment rights bar information “deliberately elicited” by informant in a jail cell)
4. Custody
a. Miranda Rights do not exist until the time of arrest – Terry stops and street encounters are covered only by the 4th amendment. (4th amendment applies before 5th in this situation)
i. See Berkemer v McCarty: “Custody is to be determined by reference to whether a reasonable person in the defendant’s position would have believed himself to be deprived of his freedom in a significant manner by the police.” Denial of Freedom of movement
ii. Police enter house and find wife on the floor, ask what happened. Husband says: I hit my wife.
(a) This statement is not made in custody; Miranda doesn’t apply.
(b) But all subsequent questions are made in custody – a reasonable person would think himself deprived of freedom after making that statement.
b. Also, Miranda doesn’t apply to defendants who voluntarily go to the station house – California v. Beheler
i. Gordon Schumway is stopped at O’Hare; admits to smuggling merkins and pooping on the lawn.
(a) Miranda doesn’t apply. Gordon Schumway came to the airport voluntarily.
(b) This is also similar to a booking situation – routinized screening –, which raises interrogation issues.
ii. Minnesota v. Murphy
(a) Murphy confesses to his probation officer. Miranda doesn’t apply.
(b) Murphy’s meeting with the probation officer was not “in custody,” because there was no formal arrest or restraint of freedom of movement.
• Note: this is very similar to Grand Jury investigations, which are also inexplicably not subject to Miranda.
c. Two areas that are NOT CUSTODIAL
i. Street encounters.
ii. Encounters on state land not resulting from arrest.
5. Waiver
a. Though Miranda indicates that the state has to meet a heavy burden to demonstrate waiver, it has not been interpreted as such later on.
i. North Carolina v. Butler – “waiver can be clearly inferred from the actions and words of the person interrogated.”
ii. Colorado v. Connelly – state need only prove waiver by preponderance of evidence. Philosophical free-will analysis does not apply – if the bogey man told you to confess, that’s just fine.
iii. Common Procedure: officer gives subject a waiver card with the Miranda warnings on it; subject signs the card.
b. Moran v. Burbine – how much information must the police provide?
i. D’s waiver is valid even though the police failed to inform him that his lawyer was trying to contact him.
ii. A waiver requires knowledge of what one is waiving, not of any extra information that might make the decision to waive more or less appealing.
iii. “Because respondent’s voluntary decision to speak was made with full awareness and comprehension of all the information Miranda requires the police to convey, the waivers were valid.”
6. Invocations
a. Necessary elements to achieve invocation
i. Right to remain silent
(a) D states: I won’t speak
ii. Right to an attorney
(a) D states: I want a lawyer
iii. Vagueness – Davis v. United States
(a) If statement is objectively vague, invocation has not been made: An ambiguous request is no request
(b) Police have no duty to clarify vague statements that could potentially be invocations; they must be made affirmatively
b. The implications of invocation
i. Right to Silence
(a) Michigan v. Mosley
• Once D has invoked right to silence, police CAN re-question so long as the D’s “right to cut off questioning” was “scrupulously honored.”
• Two hours after cessation, Mosely was questioned by a different officer at a different location about a different crime, after providing a fresh set of warnings. He spoke, and incriminated himself.
ii. Right to Attorney
(a) Edwards v. Arizona
• Once D has invoked his right to an attorney, police CANNOT initiate further questioning w/o the lawyer present, even if they read Miranda rights again.
• Once exercised by the accused, “interrogation must cease until an attorney is present.”
 But had Edwards initiated the meeting, he would have made a valid waiver. See, Oregon v. Bradshaw.
 Even if Edwards had met with his lawyer, the police could not thereafter have initiated questioning without the lawyer being present. See Minnick v. Mississippi (a fairyland castle of prophylaxis upon prophylaxis – Scalia’s dissent)
 Even interrogation as to another crime is invalid if initiated by the police after an invocation of the Miranda right to attorney (even if the second interrogation is initiated by an officer unaware of the invocation). See, Arizona v. Roberson
 BUT if defendant has initiated his 6th Amendment right to an attorney (which attaches after formal proceedings have begun) then interrogation for other crimes is allowed, because the 6th Amendment is offense specific. See, McNeil v. Wisconsin.
iii. Reconciling Angry Lovers
(a) Even under the very same fact patterns, invocation means different things for right to silence than for right to attorney (see Arizona v. Roberson)
(b) This is because requesting a lawyer is quite different from demanding cessation.
• One signals an ability to deal with the compulsion by oneself, and the other indicates that very inability. Since these are different situations, the Court treats them differently.
D. Testing Miranda’s Extremities
1. Public Safety Exception
a. New York v. Quarles
i. Considerations of public safety can override Miranda requirements
ii. Officer had reason to believe Quarles hid gun in convenience store; he handcuffed Quarles and asked him where the gun was.
(a) Motivation of individual officer is not a consideration – objective test
b. Miranda is prophylactic; not itself demanded by the constitution, so public policy can override it in certain circumstances.
2. Fruit of the Poisonous Miranda Tree is Tasty and Nutritious
a. Oregon v. Elstad
i. A defendant’s signed, voluntary confession is not excluded, even though it occurred subsequent to a previous Miranda violation
ii. Officers interrogate Mikey Elstad about the Great Gross Burglary, in Mikey’s room while listening to Dark Side of the Moon, all clad in their under-shorts, clearly a Miranda violation.
iii. Afterwards, they read Miranda rights and Mikey confesses again. This confession is valid.
b. Wong Sun doctrine does not apply to Miranda, because Miranda rights are prophylactic and not directly constitutionally mandated.
3. Harmless error can be applied to Miranda and other 5th amendment violations
a. Arizona v. Fulminate
i. Jail-cell confession to butt buddy undercover agent violates the 5th amendment – it was coerced as it was made in return for a promise of “protection.” Finding of physical coercion – stronger than just a Miranda violation
ii. Since it is not a fundamental “trial error,” a court can apply a harmless error analysis to a 5th amendment violation. But in this case, the error was not harmless.
b. Even physically coerced confessions (whose inadmissibility is NOT based on prophylaxis) are subject to a harmless error analysis.
i. This seems a far cry from Brown v. Mississippi, which indicated that physically coerced confessions rendered an entire trial a nullity.
(a) Perhaps, though, a physically coerced confession might still apply itself to “shocks the conscience” doctrine.
4. “Free will” is not required for Miranda confession to be valid
a. Colorado v. Connelly
i. Connelly confesses to Officer Joe under God’s duress. This is ok. 5th amendment violations apply only to police action, not God’s action.
ii. 14th amendment also does not require the court to intervene with God’s duress. There is no right of sanity.
5. More Exceptions
a. Confessions made in violation of Miranda can be used to impeach defendants who take the stand in their own behalf.
b. Miranda warnings are not required for grand jury investigations
6. Conservatives rally to save Miranda
a. Dickerson v. United States
i. Congress passes act effectively replacing Miranda requirements with a voluntariness standard. Although Miranda allows for alternative prophylactic solutions, this isn’t a prophylactic solution at all but an effective appeal of Miranda, as the previous standard was “voluntariness.”
ii. Court elects not to overrule Miranda.
E. Distinctions between Miranda and the Sixth Amendment
1. Brewer v. Williams
a. After arraignment, officers drive Williams from one precinct to another. Williams has met with his lawyer who has requested that the officers not interrogate Williams during the trip.
b. Officers deliver the “Christian Burial Speech,” and Williams tells them where the body is.
c. Although factually similar to Innis, the confession must be suppressed, because we are dealing with the 6th, not 5th amendment – Williams has already been arraigned. Court follows the rule in Massiah.
i. The standard for 6th amendment protection is “deliberate elicitation,” which is different from “interrogation,” because it does not require a situation that is inherently coercive.
2. The 6th amendment right to attorney is not so easily waived as Miranda rights; it “requires not merely comprehension but relinquishment.”
3. Black Letter Distinctions
a. 6th amendment is relevant only when adversarial process has begun; custody is irrelevant to analysis. (see, Moran v. Burbine)
b. 5th amendment is relevant only when D is in custody, and the initiation of formal proceedings is irrelevant.
c. 5th amendment right must be invoked, while the 6th amendment right attaches automatically (but for the Edwards extension to apply, there must be invocation).
d. Miranda applies only to interrogation where the D knows he is being interrogated; 6th amendment applies to any “deliberate elicitation” from the D (see, United States v. Henry where an undercover jail-cell buddy’s deliberate elicitation did invoke the 6th amendment)
i. But see Kuhlmann v. Wilson, where a strictly voluntary confession in the same situation was not violative of the 6th.
e. 6th Amendment is offense specific, whereas the 5th amendment right extends to all possible topics of discourse.
4. Muddying the waters
a. Michigan v. Jackson
i. Court extends 5th amendment Edwards protection to defendant’s 6th amendment right to counsel.
ii. Once D has invoked right to counsel, even after arraignment, police cannot question him without an attorney being present, even if the D signs a waiver relinquishing his right to an attorney.
iii. So, a defendant does not have to invoke his 6th amendment right to an attorney to exercise that right in most situations. However, he must invoke it for Edwards to apply – that is, for a subsequent waiver made pursuant to police initiated interrogation to be invalid.
(a) But, just like Miranda violations, incriminating statements violative of the 6th amendment may be used to impeach.
b. But Michigan v. Jackson applies only to interrogations for the same offense because the 6th amendment is offense specific. See McNeil v. Wisconsin.
III. Fourth Amendment Analysis – Trimming the Fuzzy Muff
A. Textual Overview
1. Right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.
2. No warrants shall issue, except those supported by probable cause, describing the circumstances of the search particularly.
3. This has been interpreted to mean:
a. Searches
i. Most searches are violative of 4th amendment unless made pursuant to a warrant, supported by probable cause.
ii. Some searches are allowed without a warrant. These searches must be either made pursuant to exigent circumstances, or they must be limited searches, such as Terry stops
b. Seizures
i. Most seizures are violative if they are made without a search or arrest warrant.
ii. Some seizures are otherwise reasonable.
c. Warrants
i. Warrants are usually required. They must be supported by probable cause, and must be particular.
ii. Some warrants that are not supported by probable cause will not render evidence excludable, if the police acted in good faith reliance.
B. The Meaning of “Searches and Seizures”
1. Searches
a. Katz v. United States
i. Searches apply to more than just “houses papers and effects.” 4th amendment protects people, not places.
ii. Recording telephone conversations with an electronic listening device attached to the outside of a public telephone booth constitutes a search.
iii. If a surveillance activity “violates a privacy upon which [the subject] justifiably relied,” it constitutes a search.
iv. The search is ruled “unreasonable” for lack of a warrant.
b. Harlan’s concurrence to Katz
i. Katz overrules the Olmstead physical entrance requirement.
ii. Creates a clear rule for the Katz holding:
(a) The person must have exhibited an actual (subjective) expectation of privacy.
(b) This expectation must be one that society is prepared to recognize as reasonable.
c. Applying Harlan’s Katz test
i. FBI agent investigating a print shop climbs a ladder and looks in an unblocked window to find a vast marijuana field.
(a) Is society prepared to recognize a reasonable expectation of privacy for an unblocked window, albeit one that is very high up?
(b) No. This is not a search.
ii. State trouper, while investigating a truck on the side of the road with its doors open, notices a vast marijuana field sticking out of one of the doors, and all the while a naked woman screams and prances about the area.
(a) Can a person possibly have a subjective intent of privacy, reasonably observed by society, to a car with its lights flashing, and the doors open, with a vast marijuana field sticking out?
(b) No. This is not a search.
iii. Police officer looks into Joe’s clear soup and sees something odd; he reaches in and pulls out a vast marijuana field.
(a) Does society reasonably observe the privacy of what is inside a person’s clear soup?
(b) This could go either way, but it seems that there is no reasonable expectation of privacy, since whoever looks into a clear bowl of soup can see at least some objects that are inside of it. If the soup were opaque, there would probably be a different outcome.
iv. Police officers drive up a secluded, private road, pass many obstacles and a “No Hunting” sign to find the ubiquitous marijuana field.
(a) This is not a search. Private property rights do not automatically entail a reasonable expectation of privacy.
v. FBI agent walks the aisles of a train, feeling all the luggage. He feels what seems to be a gun in one of the bags, opens it up, and finds a vast marijuana field.
(a) The initial feeling of the luggage was not a search. There is no reasonable expectation that no one will touch the outside of your luggage.
vi. Fred has been pruning his marijuana; he puts the clippings in an opaque plastic bag, and puts that in a garbage can. Police look in can and find a big bag of marijuana.
(a) Is there a reasonable expectation of privacy for one’s garbage? Is garbage analogous to a sealed letter? No, but there are still some privacy issues at stake. Court ruled, however, that this was not a search
vii. A search pursuant to consent is not a search, see Schneckloth
d. United States v. White
i. Testimony obtained through a radio transmitter concealed on the person of a police informant is not the product of a search.
ii. Since the 4th amendment does not protect information relayed from a police informant without the use of such device, it should make no difference if the informant happens to record that same information.
iii. So then, there is no reasonable expectation that one’s conversation is not being recorded by the person that one is conversing with.
(a) Harlan, who created the test, dissents: the test is not just a mirror of society, but a normative test, and a person should have a reasonable expectation that his conversation is not being recorded.
e. United States v. Karo
i. Beeper is installed into a can of ether with permission of the owner of the ether, then delivered to a buyer who had no knowledge of the beeper.
ii. Beeper then reveals information that could not otherwise have been obtained through visual surveillance.
iii. Holding
(a) The monitoring of the beeper occasions the only 4th amendment interest.
• The mere fact that the beeper is there violates no privacy interest
(b) The monitoring of the beeper does not constitute a search if the same information could have been obtained through visual surveillance
• Because it could have been obtained in such fashion, there was no reasonable expectation of privacy for such information.
(c) The monitoring of the beeper does constitute a search if the information could not be obtained through visual surveillance and a person has a reasonable expectation of privacy to the information that it provides.
iv. Since the beeper related information regarding the interior of a house that could not have been observed from the outside, the surveillance constitutes a search.
f. Kyllo v. United States
i. Obtaining by heat-gun information regarding the interior of a home that could not otherwise have been obtained w/o physical intrusion constitutes a search.
(a) No logical distinction can be made between “off the wall” and “through the wall” surveillance.
(b) In Katz, the sound waves were going “through the wall,” though the human ear would not have heard them.
(c) In the home, all details are intimate details.
ii. This reasonable expectation extends to the curtilage of the house.
(a) United States v. Dunn: four factor test for curtilage
• Proximity of the area to the home
• Whether the area is included within an enclosure surrounding the home
• The nature of the uses to which the area is put
• The steps taken by the resident to protect the area from observation
g. California v. Greenwood
i. Police look inside opaque trash bags set at the curb and find marijuana.
ii. This is not a search – no reasonable expectation of privacy
(a) Respondents exposed their garbage to the public – readily accessible by animals, children, scavengers, and police officers.
(b) Police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could be observed by the public.
iii. Using a pen register to record the telephone numbers dialed out by a criminal suspect is also not a search, Smith v. Maryland
iv. Surveillance of back-yard by plane also not a search, CA v. Ciraolo
2. Seizures
a. Three tiers of interaction (see, Wesley Wilson v. State)
i. Arrest
(a) Arises under the 4th amendment
(b) Requires justification by probable cause
ii. Investigatory stop
(a) Arises under the 4th amendment
(b) Requires only reasonable suspicion
iii. A consensual encounter
(a) No restraint of liberty; not governed by 4th amendment
(b) Requires nothing
b. Florida v. Bostick
i. A seizure does not occur simply because a police officer approaches an individual and asks a few questions. The encounter must lose its consensual nature – reasonable person would not feel free to disregard.
ii. Issue is not whether a reasonable person would be “free to leave,” instead the standard is “free to disregard.”
(a) On a bus, any person would not feel “free to leave,” so that standard provides little edification.
(b) Appropriate standard is whether a reasonable person would feel free to disregard the officer’s questions or otherwise terminate the encounter.
iii. Where a police officer boards a bus, and asks consent for a search of his bags and person, a seizure has not occurred for purposes of the 4th amendment.
iv. Problem: People never really feel free to say “no” to the police.
c. United States v. Mendenhall
i. Factors to consider in applying the “free to disregard” test
(a) The threatening presence of several officers
(b) The display of a weapon
(c) Physical touching
(d) The use of language or tone of voice indicating that compliance might be compelled
ii. An “objective test,” – subjective intent of police, perceptions of the suspect are irrelevant.
iii. However, legally defined seizures may be a term of art – the average person seldom feels free to terminate encounters with the police
(a) Tracey Maclin argues that black males in particular have this problem, and so race should be a factor in a Mendenhall analysis.
d. If a suspect in fact disregards, or leaves, it proves that he felt free to disregard or leave – Hodaridi (where police say “stop,” and D runs)
e. Schneckloth v. Bustamante
i. A search pursuant to consent is not a search.
(a) But for consent to be valid it must be voluntary – not pursuant to a seizure.
(b) When the subject of a search is not in custody, and the State attempts to justify a search on the basis of his consent, 4th amendment requires only that consent was voluntarily given, and not the result of duress or coercion.
ii. Prosecution is not required to demonstrate knowledge of a right to refuse, though it is a factor to be taken into account.
(a) This would be like applying Miranda to the 4th amendment
iii. As long as there is no seizure, and D agrees to the search, it is not a search with respect to the 4th amendment.
iv. To determine whether D was seized, Stewart (for the majority) applies a totality of the circumstances test
(a) Characteristics of the encounter
(b) Also, court should consider the characteristics of the accused
• Here, Maclin’s race factorization might apply
f. Wesley Wilson v. State
i. Officer Ritter encounters Wilson limping drunkenly through the streets near a fire. Hilarity ensues:
(a) Ritter asks for identification, radios for a warrant check
• This is neither a seizure nor a search. See Schneckloth
(b) Ritter then leaves to check on the fire, tells Wilson to “stay in the area”
• This is not a seizure. We know this because Wilson, that wily bastard, limped about 40 feet away, disregarding the command.
(c) Officer Ritter comes back, tells Wilson to “wait,” at a nearby corner while the officer returns to the fire scene. Wilson does so.
• Here a seizure occurs. The show of authority restrained Wilson’s liberty. Game over, because there was also no reasonable suspicion.
(d) Ritter learns that Wilson has two outstanding warrants. Ritter notices an oily patch on Wilson’s shirt, to which Wilson shrewdly remarks, “What are you doing? I don’t smell like smoke. I mean I didn’t start any fire with these here matches and lighter fluid.”
• All for nothing, because an illegal seizure already occurred. Wilson is freed to start more fires.
ii. It matters not that Ritter did not suspect Wilson until he noticed the oily patch – this is an objective test.
C. Justification for Searches and Seizures
1. For most searches, both a warrant and probable cause are required. The warrant identifies the probable cause for the search.
a. The Probable Cause Standard
i. Nathanson v. United States – mere affirmance of belief or suspicion is not enough. Warrant must stipulate facts or circumstances.
ii. Draper v. United States – probable cause exists where warrant stipulates the source of the tip (who had a previous history of accuracy) and specific details of the suspect that turned out to be true.
iii. Spinelli v. United States – sets up a two-part test for probable cause.
(a) Warrant must identify a basis of knowledge for the incriminating evidence
(b) Warrant must make some assessment of the credibility of this basis of knowledge (e.g. the informant making the tip)
• The veracity of the affiant’s informant, or
• The reliability of the informant’s report in this individual case
iv. The Modern Test – Illinois v. Gates
(a) Spinelli provides a good framework, but seems to leave little room for the use of a confidential informant.
(b) Therefore, Gates holds that a surplusage in one of the prongs can make up for a deficiency in the other
• The two prongs are intertwined
• They may both illuminate the question of “probable cause”
(c) Court overrules Spinelli; states that its two prongs are merely to be considered in a totality of the circumstances test.
• White, concurring, states that Spinelli has not been overruled but modified.
(d) Police receive an anonymous letter incriminating the Gates as Original Gangstas. The letter includes specific, verifiable information pertaining to a future drug trafficking. After verifying several of these facts, Officer Shmo submits an affidavit, and the judge issues a warrant.
• Held: warrant is supported by probable cause. The corroboration of the police work proves the reliability of the informant’s report
• This is enough to overcome the admitted deficiency as to the basis of knowledge for the evidence – letter was anonymous.
(e) Dissent: letter included some facts that the police investigation proved incorrect. This should point to the unreliability of the letter.
• Court’s holding indicates that some inconsistencies can be overlooked.
(f) Remember: standard of review for findings of probable cause with a warrant is for clear error only.
b. Probable Cause and “Subjective Intent”
i. Whren v. United States
(a) Petitioner claims that seizure for traffic violations should require more than just probable cause, but also “that a reasonable police officer would have made the stop for the reason given.”
(b) Court disagrees – probable cause is enough, and the subjective intent of the police officer is irrelevant.
(c) The same is true, presumably, for the “individualized suspicion” requirements for Terry stops.
c. Substantive Probable Cause (w/o a warrant)
i. Ornelas v. United States
(a) Court applies a totality of the circumstances test for probable cause
• Probable cause to search exists where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found. In short, probable cause exists where probable cause exists.
(b) Police officers spot a chevy (’64 red, to be exact) with bitches on the side, and bitches in the back. It’s got Cali plates; they check the registration and learn that the owner and a second man have recently checked into the motel wherein the car is parked.
(c) They run NADDIS and learn the two are dealers. When the two emerge from the motel, officers ask them whether they have any illegal drugs, D’s deny, officers ask to search the car, D’s consent.
• Up to this point there are no constitutional issues. D’s aren’t in custody, and there has been no search or seizure, because D’s consented to the car inspection.
(d) During the inspection, the fuzz notices a loose panel. He dismantles the panel and discovers (surprise surprise) cocaine.
• This constitutes a search. However, we don’t know whether or not there is probable cause. This is because the appellate court used the wrong standard of review.
• Because “the 4th amendment demonstrates a strong preference for searches conducted pursuant to a warrant,” an appellate court should apply a greater level of scrutiny – de novo standard for appeal.
2. Warrant Specifics
a. Warrants must be “supported by oath of affirmation”
i. Must particularly describe the place to be searched, and the persons or things to be seized.
(a) A facially sufficient affidavit may be challenged after the fact if it contains false statements. Franks v. Delaware
(b) “Negligent,” or “Innocent,” falsehoods will not invalidate an otherwise valid warrant.
(c) However, perjured statements, or statements made in “reckless disregard,” of the truth will render a warrant void, so long as its remaining content wouldn’t be sufficient to establish probable cause by itself.
ii. Must be issued by a magistrate who is “neutral and detached,” Johnson v. United States
(a) Void if issued by an attorney general involved in the investigation (Coolidge v. New Hampshire) or if by a magistrate who receives a fee for issuing warrants but not for refusing them (Connally v. Georgia)
(b) But clerks w/o law degrees can issue warrants – Shadwick v. City of Tampa
b. Particularity requirement
i. Must be particular enough for an officer “with reasonable effort to ascertain and identify the place intended.” Steele v. United States
ii. However, objectively reasonable mistakes made with regard to individual details may be tolerated. Maryland v. Garrison
c. Execution
i. Base-line rule is “knock and announce” – Wilson v. Arkansas
(a) However, law enforcement interests can justify exceptions
(b) In order to justify, police must have a reasonable suspicion that “knocking and announcing would be dangerous, futile, or inhibit the investigation.” United States v. Ramirez
ii. Search warrant doesn’t automatically convey to the police the power to search every person in the premises. Ybarra v. Illinois.
(a) But see Michigan v. Summers – it is sometimes reasonable to detain people temporarily found on the premises.
3. Anticipatory Warrants
a. Magistrate can issue an anticipatory warrant contingent on the existence of certain facts at the time of the search – makes corroboration of tips more expedient
b. United States v. Garcia – test for proper issuance of anticipatory warrant
i. Magistrate should require independent evidence giving rise to probable cause,
ii. Protect against premature issuance by listing in the warrant conditions that are explicit, clear, and narrowly drawn.
iii. The warrant must particularly describe the place, and persons to be searched/seized.
iv. Scope should be no narrower than the scope of the search that would be allowed under “exigent circumstances.”
c. State v. Craig Parent
i. Magistrate issues an anticipatory warrant for the arrest of G Money, who an informant has stated will arrive at the airport with two women, and a baby bottle full of cocaine, as he is wont to travel.
ii. Warrant is issued subject to G Money’s arrival on the individual flight number that the tip had indicated.
iii. Warrant and search do not violate the 4th amendment
iv. Issue: What if some of the facts had been incorrect? What if the two women weren’t there, and it was just G Money who arrived? Illinois v. Gates applies.
4. Arrests
a. Arrest warrants are required only when the officer must enter private property to make the arrest.
b. United States v. Watson
i. Postal inspector has probable cause (information from an identified, reliable source) to arrest Watson.
ii. He does so, without a warrant, and searches Watson for the stolen credit cards, to no avail.
iii. Inspector then asks Watson whether he can search his car, stating “if I find anything, it’ll go against you,” (this is irrelevant as Miranda does not apply to searches under the 4th amendment)
iv. Inspector finds credit cards.
v. Issue: was the initial arrest constitutional?
(a) If not, the credit cards are inadmissible either as fruits of an unconstitutional arrest, or because Watson’s otherwise voluntary consent was tainted.
vi. The arrest is justified because an act of congress authorizes postal inspectors to make arrests w/o warrants. Why is the act constitutional?
vii. Because warrantless public arrests are valid under the 4th amendment, regardless of exigent circumstances, so long as probable cause exists.
(a) Based on ancient common law: a peace officer is permitted to arrest without a warrant for a misdemeanor or a felony committed in his presence.
(b) See Atwater v. Lago Vista
• If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the 4th amendment, arrest the offender
• D can be arrested and taken into custody even for a crime that is statutorily exempt from jail time.
c. County of Riverside v. McLaughlin
i. A defendant arrested without a warrant and held in custody must receive within 48 hours a judicial determination of whether his arrest met the probable cause standard.
ii. Even at that, it must not be delayed unreasonably, e.g.
(a) For the purposes of gathering additional evidence
(b) Motivated by ill will
(c) Delay for delay’s sake
d. Payton v. New York
i. Warrants are required for arrests that take place in the home, absent exigent circumstances.
ii. However, it need only be an arrest warrant, not a search warrant, so long as the police are entering the suspect’s home (not somebody else’s)
(a) See, Steagald v. United States, where an arrest warrant does not justify the search of the home of someone other than the arrestee
5. Exceptions to the “Warrant Preference”
a. Exigent Circumstances
i. Mincey v. Arizona
(a) Mincey shoots officer Hendricks during a drug bust. In the ensuing excitement, an extensive search four day of Mincey’s apartment takes place.
(b) A warrantless search must be “strictly circumscribed by the exigencies which justify its initiation, e.g.
• Police safety
• Potential for loss of evidence
(c) Here there are no such exigent circumstances; the fact that the police were investigating a murder is not enough.
ii. Illinois v. McArthur
(a) Officer Reggie Love enforces a warrantless seizure (which presumably, because it takes place on private property, would require a warrant) so that D’s trailer will not be disturbed while he waits for a search warrant – “Chuck had some dope in there.”
(b) Seizure is does not violate 4th amendment – exigent circumstances existed.
(c) Court applies a balancing reasonableness test instead of the normal per se unreasonableness rule.
• Because “the restraint at issue” was tailored to the urgent law enforcement need, and was limited in time and scope.
• Also, it was a seizure, which are normally subject to a much looser warrant requirement.
(d) Case turns on the issue of whether the police could have searched the trailer without a warrant – they could, because exigent circumstances existed.
b. “Plain View” Doctrine
i. Horton v. California
(a) Warrantless seizure of evidence in plain view is not prohibited by the 4th amendment, even if its discovery is not inadvertent.
(b) Coolidge test:
• Item must be in plain view
• Its incriminating character must be immediately apparent
• Officer’s presence must not be in violation of 4th amendment
• Officer must have a lawful right of access to the object itself.
(c) Officer LaRault searches a private dwelling (pursuant to a warrant) for the stolen Free Mason Jewels.
(d) He was presumably interested in finding other evidence of the crime, though such was not stipulated in the warrant. He finds various weaponry and other incriminating evidence (a Shriner Fez) in plain view, and seizes it.
(e) The seizure was justified under the Plain View Doctrine – Coolidge test is satisfied, and the fact that Officer LaRault anticipated such evidence to be present is not dispositive (or relevant)
c. The “Automobile Exception”
i. As to all searches of automobiles, the police may search without a warrant so long as there is probable cause.
ii. Carol v. United States
(a) Court recognizes a difference between searching a store, dwelling, or other structure, and searching a car (or other form of transportation). It is not practicable to obtain a search warrant, because these things can move away.
(b) Court establishes an exception to the warrant requirement for moving vehicles: A warrantless search of an automobile, based upon probable cause, in light of an exigency arising out of its likely disappearance does not contravene the warrant clause of the 4th amendment.
• Chambers v. Maroney: if the car is seized, it may be searched at the station so long as exigent circumstances existed at the time of the seizure
iii. California v. Acevedo
(a) Acevedo leaves house with brown bag that police believe contains marijuana. Fearing loss of evidence, they open the trunk, and the bag, and find marijuana.
(b) Police have probable cause to search the bag, but not the car itself.
(c) Problem: a warrant exception exists for cars (Carol), but not for closed containers (Chadwick). What about a search of a closed container that is in a car?
• Ross – if a search of an entire car produces a sealed container, that container can be opened.
• So if the probable cause exists only as to the container, why should it not be opened without a warrant?
(d) H: The fourth amendment does not require the police to obtain a warrant to open a sack in a movable vehicle simply because they lack probable cause to search the entire car.
• However, once that container is out of the car and on the D’s person, a search warrant is required.
 Unless that person is arrested
iv. Wyoming v. Houghton
(a) Popo stop car for speeding, notice a syringe in the driver’s pocket, ask him what it’s for, he says: “I use it to take drugs.” They then search the car, including the passenger compartment and find, surprise, drugs. They belong to one of the passengers.
(b) Police had probable cause to search the car, including all of the containers therein. This means that they don’t need a warrant, Ross. Court finds that this exception extends to passengers’ belongings found within the car that are capable of concealing the object of the search. No 4th amendment violation.
d. Searches Incident to Arrest
i. A search incident to a lawful arrest is a traditional exception to the warrant requirement
(a) A search may be made of the arrestee’s person, Robinson
• Settled from its first enunciation
• Arises from need to disarm. “If he may disarm, he may search; the search being lawful, he retains what he finds.”
(b) A search may be made of the area within the control of the arrestee, Chimel
• Subject to different interpretations
• Also arises from safety concerns
ii. United States v. Robinson
(a) Officer Jenks arrests Robinson for operating vehicle w/o license, an offense for which he has probable cause, on a public thoroughfare.
(b) Jenks then searched Robinson. He pats him down and feels an object that he can’t identify, removes what looks like a crumpled cigarette package, the contents of which he still can’t identify, and finally opens the package to find 14 gelatin capsules.
(c) Held: Jenks was entitled to search Robinson
• In the case of a lawful arrest, a full search of the person is not only an exception to the warrant requirement, but also a “reasonable” search under the Amendment.
• Jenks was entitled to inspect the package, and was entitled to seize the capsules.
iii. Chimel v. California
(a) Hour long search of the entire house without a warrant, pursuant to an arrest violates the 4th amendment.
(b) Two justifications for searches pursuant to arrests
• To disarm
• To seize evidence that might easily be concealed or destroyed
(c) These justifications only apply to areas “within the immediate control” of the arrestee.
(d) No justification for searching any room other than that in which the arrest occurs, or searching through closed or concealed areas in that room itself.
iv. New York v. Belton – synthesis of the arrest and automobile exceptions
(a) When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may search the passenger compartments of that automobile.
(b) This matters only for defendants that are arrested for offenses for which evidence is not likely to be found in the car.
v. Colorado v. Bertine – “Inventory search” is also allowed when subject has been arrested; same rationale.
vi. Knowles v. Iowa
(a) If an officer stops an individual for committing an offense, but elects to issue a citation instead of arresting him, then there is no fourth amendment exception to probable cause for a car search.
(b) Officer stops Knowles for speeding, but issues a citation in lieu of an arrest. He then searches the car without probable cause, and finds pot.
(c) Neither rationale (safety and preservation of evidence) applies to this situation, so the search is unconstitutional.
• But an officer can get around this by arresting, searching, and if nothing is found, changing his mind about the arrest.
6. Stops and Frisks
a. Terry v. Ohio
i. The 4th amendment permits limited searches and seizures in absence of both probable cause and warrants based on a standard of individualized suspicion.
ii. Distinction between stop and arrest
(a) A stop is a brief detainment for questioning upon suspicion that he may be connected with criminal activity
iii. Distinction between frisk and search
(a) A frisk is a pat-down for the purpose of disarming
iv. Stops and Frisks are “Searches” and “Seizures” respectively, and they do fall under 4th amendment regulation
(a) The standard is simply lower for 4th amendment compliance
(b) There must be “reasonable suspicion”
• Would the facts available at the moment of the seizure or search warrant a man of reasonable caution in the belief that the action was appropriate?
• Consider first the nature and extent of the governmental interests involved
 Not only the interest of crime prevention, but also the interest of safety of the officer (for the frisk)
• Consider next the nature and quality of the intrusion on individual rights
v. Policy: Aggressive use and misuse of the stop-and-frisk power continues to be a major source of tension between police and people of color. David Cole – No Equal Justice.
(a) Warren: police harassment of minorities “will not be stopped by the exclusion of any evidence from any criminal trial.”
(b) Justice Stevens: the fact that many stops never lead to an arrest (8 out of 9) “exacerbates the perceptions of discrimination felt by racial minorities and people living in high crime areas,” and also “indicates that society as a whole is paying a significant cost in infringement on liberty” by virtue of such stops.
b. Florida v. J.L.
i. An anonymous tip that a person is carrying a gun is, without more, insufficient to justify a Terry stop-and-frisk.
ii. Caller reports to police station that a young black male standing at a particular bus stop and wearing a plaid shirt is carrying a gun.
iii. Officers arrive at bus stop, see a black male wearing a plaid shirt, stop him, and get frisky. They find a gun and seize it.
iv. Held: officers did not have a reasonable “articulable suspicion” that J.L had a gun.
(a) An anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity
(b) This tip provided no other verification – it contained no predictive information.
v. Presumably, the standard for “articulable suspicion” resulting from an anonymous tip will be less than the “probable cause” test for warrants sworn out at the behest of anonymous informants. See, Illinois v. Gates
(a) Court states that if the danger had been greater (e.g. a bomb threat) then the indicia of reliability would have been lesser.
c. United States v. Ralph Arvizu
i. Arvizu’s car is stopped near the Mexico border by a border agent. Arvizu, being very intelligent, consents to a vehicle search, though he knows that his car is filled to the brim with marijuana leaf. The border agent finds such marijuana leaf.
ii. Held: the stop, being based on “reasonable suspicion,” was not violative of the 4th amendment.
(a) Agent basis his determination on several factors.
• Vehicle took a route that smugglers commonly take, avoiding the checkpoint.
• Vehicle was a minivan, a type that smugglers often use.
• Children’s feet were propped up on cargo, and they waived oddly and mechanically to the officer, as though they were instructed to, or perhaps as though they were not real children but automatons, yes, automatons that require marijuana leaf for fuel.
(b) Court rules that “reasonable suspicion” requires a “totality of the circumstances” test, to determine whether the officer has a “particularized and objective basis,” for suspecting odious behavior.
• Observations of the officer that he believes are important should not be left out – court overrules “divide and conquer” analysis.
• Perhaps this leaves open the door for racial profiling
iii. Also, the stop occurred along the border, where the powers of the 4th amendment are weakest, for on the border we draw close to the darkness of heathen lands.
d. Illinois v. Wardlow
i. An individual who flees at the sight of a police car, in what is known as a “high crime area,” carrying an opaque bag, is subject to a Terry stop under the 4th amendment.
ii. High crime area + flight = “reasonable, articulable suspicion.”
iii. Problems:
(a) Is an individual in a high crime area who runs more or less suspicious than a person in a low crime area who runs? Isn’t a person in a high crime area more likely to fear police, and even more likely to fear a police car as an indication of nearby criminal activity?
(b) Is enforcing Wardlow only in high crime areas invidious?
D. Racial Profiling
1. Definitions:
a. “Occurs whenever a law enforcement officer questions, stops, arrests, searches, or otherwise investigates a person because the officer believes that members of that person’s racial or ethnic group are more likely than the population at large to commit the sort of crime the officer is investigating.” Gross and Livingston article.
b. Must be as a result of a generalized belief, not a particular description in an individual case.
2. Is racial profiling inherently unconstitutional?
a. United States v. Martinez-Fuerte – under the 4th amendment it is constitutional to use race as one factor among several for a decision to stop a person, but not as the sole basis.
b. There may be a better argument under the Equal Protection clause of the 14th amendment, but remedies under this clause are not as well developed as they are for the 4th amendment.
3. Is racial profiling bad policy? Five Factors
a. Is the investigation based on race or ethnicity?
i. Brennan: “the line between discrimination based on ‘ancestry or ethnic characteristics’ and discrimination based on “place or nation of origin” is not a bright one.
ii. Often, such investigations are abhorrent, because there is no justification for them, and they result in undue harm.
(a) Stigmatization of an entire ethnic group
(b) Harassment
(c) Reinforcement of inferiority, alienation: to be treated as a criminal is a basic insult to a person’s self image.
iii. But it is difficult to determine whether 911 investigations meet the definition for racial profiling, because “the police have information that the specific crime they are investigating was committed by someone of that ethnic group.”
b. Is race a strong predictor of criminal behavior?
i. Probably not in relation to drug trafficking
ii. But it might be with respect to terrorism
(a) However, even if ethnicity is a strong predictor of criminal behavior, an individual member of the relevant groups is very unlikely to be a criminal.
(b) Then the benefit of racial profiling might be slight, and the price steep.
c. What does the government do based on race?
i. A letter sent out requesting help in fighting terrorism might be bad
ii. But it is not as bad as routine stops, searches, and arrests.
iii. Which is itself not as bad as being put in a Japanese internment camp.
(a) Did the investigators impinge on the subject by confronting him or covertly invading his privacy?
(b) Will the suspect ever know that he was racially profiled
• If not, the damage may be minimal
(c) Is the subject treated as one of us or one of them?
iv. The racially motivated drug interdiction of the highway gets the shit end of all of these factors.
d. How strong is the evidence of a racially identified suspect’s guilt or innocence?
i. The less likely the guilt of any individual, the higher the proportion of innocent people among those affected, and the higher the social cost.
ii. What if the likelihood of guilt is very strong?
(a) Three white men flee into a bar where they are the only whites. One of them is guilty. It seems that we could arrest all three without feeling bad about it.
(b) Also, we can use this kind of reasoning to rule out innocents.
e. What are the likely benefits of racial profiling?
i. The greater the threat, the more willing we are to accept the restrictions, and the less precision we demand.
(a) Ye olde balancing test
(b) How great is the potential harm?
(c) How likely is the conduct to be useful?
ii. Of course, we might use this evaluation to exaggerate the danger, resulting in unjust outcomes.
4. Are some kinds of racial profiling good policy, and others bad policy?
a. Issue with racially motivated stops and treatment do not necessarily begin and end with the question of whether it is technically “racial profiling”
b. A more helpful assessment may be how many innocents are stopped in relation to arrests, and how severe the crime is.
i. Highway Drug Stops – “Driving While Black”
(a) There is evidence that police use race to decide whom to stop and search
(b) But the drug culture here is a wondrous rainbow.
(c) Probability of guilt for any individual is low; no discernable benefits
(d) Stops are intrusive, humiliating, and divisive
(e) Bad Policy
ii. Gun Searches
(a) Not as much evidence for racial motivation (but let us assume)
(b) Here only a small minority of those searched carried guns
(c) But arguably the benefits were high – drop in criminal gun use
(d) Cost was high – ugly public relations
(e) Probably a Bad Policy
iii. Racial Incongruity
(a) Used as a basis of suspicion
• Most courts have ruled it unconstitutional
(b) It might be that, though it is not as highly inaccurate as the gun searches, the public is ambivalent about the benefits – war on drugs.
iv. Underworld Segregation
(a) Involves monitoring of criminal organizations
(b) Surveillance is minimally intrusive
(c) If there are some benefits this may be a Good Policy
v. Wen Ho Lee Espionage
(a) This wouldn’t have been technical racial profiling
(b) However, the treatment was quite bad. There was little evidence that this Chinese American man was guilty; governments willingness to treat him so poorly does indicate racism.
(c) Also, the magnitude of the potential crime was very high – nuclear espionage.
(d) Important factors are: quality of evidence against Lee, harshness of the treatment, magnitude of the risk.
vi. Oneonta Investigation
(a) Because description was, “a young black man with a knife, and a cut on his hand,” all the black people had to submit to hand examinations.
(b) Not technical racial profiling, but disturbing because
• Investigation was intrusive
• Likelihood of criminality was extraordinarily low
• Severity of the risk was not astronomical.
E. Alternatives to Probable Cause
1. United States v. Montoya de Hernandez
a. Customs inspector notices that D has made 8 recent trips from Bogotá to Miami or L.A. She refers D to a second inspector. Both ask D general questions about herself and her trip.
b. The answers are suspicious if not undoubtedly incriminating. The two inspectors suspect D of balloon swallowing. A third inspector comes, at the other two’s behest, to conduct a pat down and strip search.
c. During the strip search, inspector notices a “full firmness,” also notices that D was wearing two pairs of elastic underpants with a paper towel lining the crotch. This watermelon is ripe with coke. Otherwise, no incriminating evidence is found.
d. Head inspector requests an x-ray, D consents, then states she is pregnant, then agrees to a pregnancy test before the x-ray. Finally, she withdraws the consent when she learns she will be handcuffed on the way to the hospital.
e. Inspector then gives D the option of returning to Columbia, agreeing to an x-ray, or staying in the detention room until she poops in a wastebasket. D elects to go home, but until there is a flight, she must stay in the room until she poops. Inspectors refuse her requests to make a phone call.
f. D holds it. Finally, inspectors seek a warrant for an x-ray, the magistrate issues one (which authorizes a rectal exam as well) she is treated to both, and surprise, surprise, there are little baggies in her ass.
g. How the hell does this not violate the 4th amendment?
i. The seizure (and searches) took place at the international border
ii. Congress has granted plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, to regulate the collection of duties and keep out contraband.
iii. The Fourth amendment is applied differently to the borders; this goes all the way back to Boyd. Reasonableness is qualitatively different.
iv. On the border, we just apply a balancing test, and the balance is heavily in favor of strip-searching and anally probing retarded nuns.
v. “Not only is the expectation of privacy less, but the 4th amendment balance strikes much more heavily in favor of the government at the border.”
h. Holding: detention on the border, beyond a routine customs search and inspection, is justified at its inception if customs agents reasonably suspect that the traveler has blow in the flow, coke in spokes, or little baggies in his or her respective doody hole.
i. Customs agents had “reasonable suspicion” based on “common sense human behavior.” A low hurdle, because of the Gov. interest.
ii. The original strip search requires no justification at all.
iii. The x-ray and poopy-finger-procedure do require a warrant, but you can hold the D until you get one.
2. Colorado v. Thompson
a. During a drug bust, D puts an unidentified object in his mouth, and swallows it, though ordered to spit it out. Police search and find nothing, and then D is taken to the hospital for observation.
b. Police request and obtain a search warrant for an x-ray. The police then request a laxative to expedite the poop loop.
c. D produces excrement chock full of cocaine balloons, and nuts.
d. Rule: a request for an intrusive body search must demonstrate not only “probable cause,” but a “clear indication” that the sought evidence will be found.
i. Also, court must consider whether the procedure will present a risk to the suspect’s life or health.
ii. Finally, court must be satisfied that the intrusion will be performed in a reasonable manner.
e. Held: the warrant for the x-ray was properly given
i. The danger presented by the rupture of the balloons is far greater than that presented by an x-ray. Also, there seems to be a “clear indication” that D swallowed a druggie balloon.
f. But, the warrant for the laxative was improperly given
i. Warrant did not indicate the same “clear indication” – problem of jewelry up the bum.
ii. Warrant did not consider side effects, “risk to suspect’s health.”
g. Moral: The police are dirty bum-lookers.
3. Checkpoints
a. Indianapolis v. Edmund
i. Checkpoint set up to stop a predetermined number of vehicles. Officers check license and registration, look for signs of impairment, and conduct an open-view examination of the vehicle while a narc dog sniffs around.
ii. Checkpoints are identified with lighted signs as “Narcotics Checkpoint.”
iii. Held: Drug checkpoint violates the 4th amendment
(a) For a checkpoint to be legal, its primary purpose must not be to detect evidence of ordinary criminal wrongdoing
b. United States v. Martinez-Fuertez
i. Brief, suspicionless seizures of motorists at a fixed border checkpoint, for the purpose of intercepting illegal aliens, does not violate 4th amendment.
ii. Purpose is: control the border
c. Michigan v. Sitz
i. Suspicionless stops of motorists for signs of intoxication does not violate 4th amendment
ii. Purpose is: reduce drunk driving and the hazards it causes.
d. Delaware v. Prouse
i. A discretionless stop for a spot check of driver’s licenses and registration does violate the 4th amendment
ii. No primary purpose outside of general law enforcement.
iii. Presumably a temporary such checkpoint to catch a terrorist, etc. would be ok.
4. Chicago v. Morales and the Return of Due Process
a. Chicago law permits arrest of individuals found loitering with known street gang members, who refuse to disperse.
i. Officer must believe that at least one person in group is a gang member
ii. Persons must be loitering with no apparent purpose
iii. Officer must order group to disperse
iv. Individual must disobey this order
b. Court rules the law violative of Due Process clause of the 14th amendment for being vague and open to invidious discrimination.
c. Original law is arguably vague, but police board provides guidelines
i. Original order
(a) Person must have no apparent purpose
(b) Areas are designated for greater enforcement
ii. General order
(a) Identification of gang members
(b) Areas picked
(c) Limits on who police can arrest
(d) Aggregate amount of discretion is limited, but a particular officer may have a lot of discretion
(e) Provides structural methods for limiting discretion
(f) Unlike disorderly conduct – which can be enforced anywhere or anyone
• How does this cut? Might race or ethnicity be a category of enforcement? Would we rather enforce it against particular group, or against everyone?
d. Majority Holding:
i. Ordinance was unconstitutionally vague and did not meet the fair notice requirement – it did not provide adequate notice as to what conduct was prohibited.
ii. Ordinance also violated the requirement that a legislature establish minimal guidelines to govern law enforcement
(a) The “no apparent purpose” standard is subjective because its application depends on whether some purpose is apparent to the officer.
(b) This encompasses harmless behavior
• Stevens: law infringes “right to loiter”
iii. Vagueness can invalidate a law for two reasons:
(a) Failure to provide notice to ordinary citizens as to what conduct is prohibited
• This creates a situation where a person might not be able to avoid breaking the law.
• What exactly is “no purpose?” What exactly is “dispersal?”
• If we have a “right to loiter,” then the dispersal is an unjustified impairment of liberty.
(b) It may authorize or encourage arbitrary or invidious, discriminatory enforcement
e. O’Conner
i. You can fix the law by requiring a “harmful” purpose instead of “no purpose.”
ii. Otherwise, law is unconstitutionally vague. “No apparent purpose” allows for too much discretion.
f. Scalia and Thomas
i. The “right to loiter” is quite a good right … for me to poop on!
ii. Loitering has been a crime throughout the ages, ever since Pliny the Elder was put in the stocks for spending too much time in the public baths.
iii. There’s plenty of notice in here (so take off all your clothes), and freedom of movement is often infringed upon by the public interest.
F. Searches and Seizures by Non-Police Actors
1. Vernonia School District v. Acton
a. Random urinalysis drug testing of student athletes by a public school district does not violate 4th amendment
i. “Special needs” of schools obviate the need for probable cause and warrants.
ii. Privacy needs are already reduced in high school, where the weak and pimply receive daily swirlies, wedgies, and towel-snappings of the ass, and where the proverbial “goose” is constantly “loose.”
iii. Skinner v. Railway Labor Executives: a state-compelled collection of urine is a search, but is subject only to a “reasonableness” requirement (without reference to a warrant or probable cause) so long as the search is not undertaken to discover evidence of criminal wrongdoing.
b. Reasonableness Test
i. Consider the privacy interest
(a) It is reduced in adolescent locker rooms – peeing in a cup is not so bad
(b) Also, the information disclosed is not turned over to law enforcement agencies
ii. Consider the nature and immediacy of the government concern
(a) Concern is large. This is your brain. This is your brain on drugs.
(b) Finding was that drugs were quite prevalent at said high school
c. Question should be: whether the search is one that a reasonable guardian and tutor might undertake.
d. See, New Jersey v. TLO where Court ruled that “neither warrant nor probable cause requirements were suitable to “maintenance of the swift and informal disciplinary procedures needed in the school.”
i. You just apply a “reasonable guardian” test
ii. Griffin v. Wisconsin: same standard applies to probation officers
iii. O’Connor v. Ortega: ditto for a doctor in a government hospital.
e. But see Chandler v. Miller where a drug test for electoral candidates did not pass the reasonableness test, because there was no substantial government interest.
i. Camara v. Municipal Court of San Francisco: requires an “administrative warrant” for routine periodic inspections to ensure compliance with health and safety codes.
(a) But these warrants do not require specific knowledge of code violations of a specific dwelling.
(b) BUT closely regulated industries can be inspected even without one of these – New York v. Burger.
2. Ferguson v. Charleston
a. Medical University adopts policy whereby pregnant mothers are tested for cocaine, and depending on the stage of pregnancy and the result of earlier tests, turned over to law enforcement.
b. Held: these searches were unreasonable and therefore violative of the 4th Amendment.
i. For random drug testing to be reasonable under the 4th amendment, its purpose must be “divorced from the State’s general interest in law enforcement.”
ii. Ultimate purpose here may be beneficent, but the direct purpose of the drug tests was to turn the information over to law enforcement.
(a) This implies a special obligation to make sure that the patients are fully aware of their constitutional rights.
iii. Because of this purpose, the gravity of the threat cannot be dispositive.
3. Private PoPo
a. Like private citizens generally, private police can arrest for misdemeanors committed in their presence.
b. And for felonies they have probable cause to believe the arrestee has committed, provided that someone has in fact committed said felony.
c. Most states also have a “Merchant’s privilege” for Terry style stops.
d. The Private PoPo play the old Copper’s role
i. They walk the beat – order maintenance
ii. Perhaps due to the fact that the real police’s role has become more reactive due to 4th Amendment restrictions.
iii. Perhaps this is worse than police because they are subject to disparities of wealth and may be instructed by private individuals to enforce their power invidiously.
(a) A more unequal distribution of security
(b) Of course, when the public PoPo had these powers, they also exercised it to the detriment of the poor and racial minorities.
G. Reasonableness of Force
1. Tennessee v. Garner
a. Deadly force may be used only if it is necessary to prevent an escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.
b. Burglary suspect flees over a fence, Officer Dirty Harry yells “halt,” suspect does not do so, and Dirty Harry shoots him in the head.
c. Held: Use of force violates the reasonableness requirement of the 4th Amendment. Where the suspect poses no immediate threat to the officer or others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.
2. Graham v. Connor
a. Held: All claims of excessive force, deadly or not, in the course of an arrest, stop, or other seizure should be analyzed under 4th Amendment Reasonableness Standard and not under “substantive due process.”
b. Graham leave convenience store hastily, has a diabetic sugar reaction, the police seize him and his companions, hand-cuff them, and toss them around, refusing Graham’s requests for sugar, reasoning that “there aint nothing wrong with the motherfucker but drunk, lock that sonofabitch up.”
c. Graham sustains a broken foot, cuts, a bruised forehead, and an injured shoulder.
d. Court, surprisingly, finds the use of force excessive.
i. Overrules Johnson v. Glick, Rochin v. California. Due process and four factors are no longer applicable; apply the 4th amendment reasonableness standard.
ii. Reasonableness depends both on when the seizure is made, and how it is carried out. The inquiry is an objective one:
(a) Question is whether the officer’s actions are “objectively reasonable” in light of the facts and circumstances around them.
• Subjective intent of the officers is irrelevant
(b) Look to the severity of the crime, whether the suspect poses an immediate threat to safety of officers or public, whether he is actively resisting arrest or attempting to evade by flight.
IV. Remedies
A. Recompensatory Remedies
1. Injunctions: Hard to prove standing
a. Los Angeles v. Lyons
i. Lyons is stopped by officers who apply a chokehold, rendering him unconscious and damaging his larynx. He seeks a preliminary and permanent injunction against the city, barring use of chokeholds.
ii. Holding: no injunction may be granted. The equitable remedy is unavailable absent a showing of irreparable injury
(a) Lyons cannot prove that he will be choked again
(b) To establish a controversy Lyons would have to prove
• That he would have another encounter with the police
• That all police officers in LA always choke citizens with whom they have an encounter
• That the city authorizes this behavior
iii. Lyons lacks standing because it is speculative that he will again experience injury. But he does presumably have standing to claim damages against the individual officers, and perhaps the city, for the original choke.
b. O’Shea v. Littleton
i. Injunctive relief for discriminatory enforcement is thrown out: “past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief.”
c. Rizzo v. Goode
i. Plaintiff’s showing at trail of a relatively few instances of violation by individual police officers, without a showing of deliberate policy on behalf of named defendants did not provide a basis for equitable relief.
2. Damages
a. Unconstitutional searches and seizures may give rise to state tort claims such as false arrest or trespass, or to claims under state constitutions.
b. 42 U.S.C. § 1983
i. Gives plaintiffs a right of action in federal or state court when their federal constitutional rights have been violated by persons acting under color of state law.
c. Federal Torts Claims Act makes the feds liable for specified torts of its law enforcement officers that may involve violations of the 4th amendment.
d. However, the typical 4th amendment case – a gratuitous car search – does not translate into significant damages.
e. Immunity doctrines also provide a barrier
i. Eleventh amendment and § 1983
ii. States and state agencies are absolutely immune from damages liability for constitutional violations
iii. Individual police officers may be held liable, but you must overcome qualified immunity.
f. Anderson v. Creighton
i. Creighton files suit against Anderson for monetary damages under the 4th amendment.
ii. Held: qualified immunity bars the suit
(a) Qualified immunity can be overcome only on an assertion that a clearly established right was violated.
(b) This right must be specific – it is not enough to say that the search violated the 4th amendment for lack of probable cause. It has to be sufficiently clear that a reasonable officer would understand that what he is doing violates that right.
• It is an objective, though fact specific standard, so the officer’s subjective beliefs are irrelevant.
• Otherwise, enforcement officers might be “unduly inhibited” from taking actions that seem reasonable at the time.
iii. Hence, the officer not only must have violated the 4th amendment’s reasonableness standard, but it must be an unreasonable violation of the reasonableness standard.
iv. Because a reasonable officer could have believed that Anderson’s search was lawful, qualified immunity applies, and the suit is barred.
B. Other Potential Remedies
1. Criminal Prosecution
a. Not so great for regulating police practice
i. Paul Cheviny – it is a cumbersome tool
(a) Charges are made after the fact
(b) It is a matter of hazard as to which cases can be proved
(c) Likelihood of success is small
• Creates a patchy deterrent
(d) Police standards should often be higher than the usual criminal standards
• Poor police standards can be cited in defense of criminal behavior.
b. E.g. Rodney King
2. Administrative and Political Remedies
a. Goldstein recommends police administrative discipline – provides day-to-day direction.
b. However, “there is widespread recognition that police departments have failed to develop adequate methods of accountability.” Samuel Walker.
c. Political oversight
i. Can be corrupt
ii. Can provide for the wrong motivation
(a) “Jerry Kline is soft on criminals – he punishes the police and lets murdering rapist child pornographers go free. Bob Boberson is serious about crime, he’ll keep his hands off and his eyes closed to let god fearing policemen do the dirty work for you.”
(b) Citizen review boards might work
• But they haven’t worked all that well so far.
C. The Exclusionary Rule
1. Weeks v. United States
a. Inception of the exclusionary rule
b. Evidence obtained in violation of the 4th and 5th amendments cannot be used in court.
2. Wolf v. United States
a. Although the 4th and 5th amendments apply to the states, the Weeks exclusionary rule does not.
3. Mapp v. Ohio
a. Overrules Wolf. “All evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.
b. Without the Weeks rule, the assurance against unreasonable searches and seizures would be “a form of words.”
c. This is the necessary to uphold “the imperative of judicial integrity,” whose precedent may be found in volumes of fairy law, in the jurisdiction of Elfin Land.
i. If the government becomes a lawbreaker, it breeds contempt for the law.
ii. The judicial use of illegal evidence implicates the judiciary in the act
iii. This is why, under the doctrine of sovereign immunity, the government can rarely be held accountable for its wrongs. Of course, fairy law is quite different.
iv. Anyway, might judicial integrity cut the other way?
(a) Does a process in which we pretend that damning evidence doesn’t exist reflect integrity?
(b) Is suppression a fraud perpetrated on the fact finder?
• Why not just give the evidence, and specify how it was gathered.
• The types of evidence with which we arguably have the most reservations (physically coerced) might be disregarded by a jury. Such evidence might even cut in favor of a defendant, who seems to have been treated so very badly.
(c) It also might encourage perjury on the part of the police officer as to the methods of inquiry.
v. Also, it might not really deter bad behavior
(a) So long as you don’t want to use the evidence in court, you can do as you please.
(b) Also, the rule is rarely applied.
d. Case is originally argued under 1st amendment, but these are good facts for extending the exclusionary rule – the woman just wants to look at porn, for goodness sake.
4. Coppers like the exclusionary rule because it is low cost – perhaps less deterring than a robust damages regime (getting rid of qualified immunity).
5. Some have suggested an administrative regime that would be more flexible, quick, clear, personal, and specific.
6. United States v. Leon
a. Holding: There is a good faith exception to the exclusionary rule for officers who reasonably relied on a search warrant that was subsequently found defective.
b. The purpose of the exclusionary rule is to deter police behavior that violates the 4th amendment. If a police officer acts in good faith reliance on a search warrant, that is all we can ask – use of the exclusionary rule will not deter his mistake in the future. But it will result in “letting criminals go free.”
i. Exclusionary rule, like Miranda, is prophylactic, not itself required by the constitution, but required to ensure that the constitution isn’t violated.
ii. Overlooks the possibility that the exclusionary rule also deters magistrates from issuing warrants that are constitutionally insufficient.
c. Holding does not preclude inquiry into the knowing or reckless falsity of the affidavit.
i. Reliance on the warrant must be in “good faith.”
ii. Magistrate must manifest neutrality and detachment – must himself act in good faith.
iii. Warrant must provide magistrate with a substantial basis for determining the existence of probable cause.
d. One could argue that this doctrine simply creates a strong imperative of reasonable doubt in favor of magistrates.
i. Illinois v. Gates already states that magistrates’ decisions to issue warrants should be given lots of deference.
ii. Perhaps holding does not change things as much as it seems.
e. Dissent:
i. Fairy law dictates that the courts practice judicial integrity
ii. The exclusionary rule is not limited by the deterrence rationale; it is not even prophylactic, but an integral part of the very rights outlined in the 5th and 4th amendments.
7. Standing
a. Minnesota v. Carter
i. To claim the protection of the 4th amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.
(a) This seems a lot like the definition of a search
ii. Household guests do not all have standing
(a) Overnight guests do have standing – Minnesota v. Olsen
(b) But one who is just there “for a while” with the consent of the householder does not necessarily – Rakas v. Illinois.
iii. Here, respondents were not overnight guests, but were in the house merely for the purpose of bagging crack rock.
(a) It was simply a place of business
(b) So there was no expectation of privacy
8. Fruit of the Poisonous Tree – doesn’t apply to Miranda
a. To have evidence excluded you have to show
i. The police did something illegal to the claimant
ii. The illegal action led to the evidence found against the claimant
b. It’s a causation rule.
c. Wong Sun v. United States
i. Agents arrest Hom Way, and find heroin in his possession. He tells the fuzz that he got it from “Blackie Toy.”
ii. Agents assume that “Blackie Toy” is James Wah Toy. They go to his home, and when he refuses their entry, they break down the door, and place him under arrest. Toy implicates “Johnny,” tells agents where to find him.
(a) The entry and arrest are illegal.
(b) “Verbal evidence which derives so immediately from an unlawful entry and unauthorized arrest is no less the ‘fruit’ of official illegality than the more common tangible fruits of the intrusion” (such as pomegranates and tangerines)
(c) Therefore the verbal evidence obtained here is also illegal.
iii. Agents find “Johnny,” a.k.a. Johnny Yee. Yee gives them heroin, and implicates “Sea Dog,” who is Wong Sun. They find and arrest Wong Sun. Later they release both Toy and Sun, and a few days later each makes a written, though unsigned confession.
(a) Wong Sun’s arrest is also without probable cause
(b) However, his confession is not tainted; it’s good to eat
• This is because the connection between arrest and statement had become “so attenuated as to dissipate the taint.
• NOT a strict but-for rationale
(c) Toy’s confession is also not poisonous fruit, however it is excluded for other reasons.
iv. Test:
(a) Whether, granting establishment of the primary illegality, the evidence has been come at by exploitation of the illegality
(b) Or instead by means sufficiently distinguishable to be purged of the primary taint.
d. Hypo:
i. Police search X’s house illegally, find no incriminating evidence. They do find a piece of paper w/ Y’s address.
ii. Then they go to Y’s house, search illegally, find evidence that incriminates both X and Y.
iii. Y can exclude the evidence. This search is illegal because the piece of paper was fruit of the poisonous tree.
(a) However, he could not exclude the paper itself, because he doesn’t have standing for evidence in X’s house.
iv. X can also exclude the evidence, as fruit of the poisonous tree.
(a) However, if the police had only searched Y’s house, he couldn’t exclude the evidence for the same reasons of standing.
e. Exceptions
i. The independent source rule
(a) If police locate evidence from both legal and illegal means, the evidence is not excludable.
(b) There is no causal link
(c) Requires that the legal discovery of evidence be independent from the illegal means.
(d) See Silverthorne Lumber Company
ii. The inevitable discovery rule
(a) If the police would have eventually discovered the evidence by legal means had they not discovered it by illegal means, the evidence is not excludable
(b) Court must be certain that the evidence would in fact have been discovered
• Police might point to a positive track record in mutilated corpse discovery
• Also, point to the mutilated corpses team and its fine procedures, replete with wisdom.
(c) See Murray, where the fuzz not only would have discovered the evidence legally, but they in fact did.
iii. Murray v. United States
(a) With probable cause but no warrant in hands, agents force entry into warehouse to discover large bales of marijuana. They leave, apply for a warrant, and come back.
• No mention of the first search is contained in the warrant.
(b) Court analogizes to both “independent source” and “inevitable discovery” doctrine. However, there is no independent source, so inevitable discovery seems more applicable.
• Court remands. If the fuzz would have “inevitably” gotten a warrant, or if the warrant search was an “independent source” then the evidence is not excludable
iv. Goal: for the PoPo to be in the SAME POSITION as they would be had the illegal procedure not occurred – no more, no less.
9. Impeachment
a. United States v. Havens
i. Evidence suppressed as fruit of an unlawful search or seizure may be used to impeach a defendant’s false trial testimony
ii. This is true even if the false testimony is given in response to cross-examination, and was not uttered during direct examination.
iii. D was arrested along with his buddy for drugs. Buddy had drugs sewn into his clothes, D had patches cut from his shirt that matched the drug pouches. On cross-examination, D claims that he was not found with such clothing.
(a) D’s luggage had been searched illegally
(b) Nevertheless, it may be introduced to impeach his false statements
iv. Holding puts a powerful tool in prosecutor’s hand – he can ask D about evidence that was excluded, and the D either has to admit to its existence, or lie, in which case it can be introduced to impeach.
v. Tough issue: we don’t want the evidence brought in, but we don’t want Ds to perjure themselves.
b. Tough issue: we don’t want the evidence brought in, but we don’t want Ds to perjure themselves.
V. Investigating Complex Crimes
A. Nature of complex investigations
1. Complex investigations are covert, rather than overt, proactive rather than reactive
2. The categories that are most open to abuse are similarly covert, proactive investigations
3. So, the goal is to achieve the greatest amount of crime control while minimizing transgressions of civil liberty
B. Electronic Surveillance and the Search of Electronic Data
1. Title III of the Omnibus Crime Control and Safe Streets Act
a. Regulates the “nonconsensual” interception through use of any electronic, mechanical, or other device of the contents of any wire, oral or electronic communication
b. An interception is “consensual” if any party to the communication consents to being overheard
c. Sets forth circumstances in which federal law enforcement agencies may obtain court orders from federal judges authorizing interceptions
d. It empowers states to enact statutes permitting state law enforcement agencies to seek similar orders from state judges
i. Most states have done so
e. Wiretapping
i. Law enforcement agents are required to obtain a warrant before resorting to nonconsensual electronic surveillance of wire, oral or electronic communications in most cases.
(a) Federal wire or oral communications (but not electronic) must also be authorized by specially designate high-ranking Justice Department officials.
(b) State applications similarly require the approval of the district attorney or analogue
(c) Applications must be written, under oath, and include details regarding
• The particular offense under investigation
• The types of communication sought
• Identity of the person or persons, if known, committing the offense
• Whose communications are being intercepted
• Facilities from which or the place where the communication is to be intercepted (unless the circumstances merit a “roving” interception order)
(d) Applications must also include a “full and complete” statement as to whether or not other investigative procedures have been tried and failed, or as to why they reasonably appear either unlikely to succeed or too dangerous.
(e) They must describe any previous application for surveillance of the same persons or places
(f) Must include the period of time for which the interception is required, not to exceed 30 days
(g) Interception orders are premised on multiple probable cause determinations, issuing court must find that other techniques would be inadequate
• United States v. Kahn – title III surveillance is not permitted if “traditional legal techniques would suffice”
ii. No later than 90 days after either the denial of an application, or the termination of the period of authorized surveillance, the issuing magistrate must serve an “inventory” on the people named in the application or order, and on whichever other parties subject to the interception the judge sees fit to include
iii. Agents required where possible to record intercepted communications and make such available to the issuing judge
iv. Provides for civil, criminal remedies, as well as an exclusionary rule for all communications EXCEPT electronic
(a) But this rule does not always require exclusion
v. Title III also contains a “minimization” requirement
(a) Agents must minimize the interception of communications not otherwise subject to interception under this chapter
(b) They must stop listening to calls that do not fall under the scope of the wiretap order
(c) However, this provision contains few enforceable teeth. See Scott
2. Scott v. United States
a. Agents intercept all the phone conversations over a particular phone for a period of one month.
b. Court finds that this is “reasonable minimization,” and that the subjective intent of the officers is irrelevant
c. This seems to miss the point, for if, regardless of the intent, the agents intercepted every single phone call, and took no steps to minimize the interceptions, how could that be “reasonable minimization” without negating the entire requirement?
d. Also, since this is a statute and not the 4th amendment, it is unclear that the fourth amendment “reasonableness” doctrine applies.
C. The Search of Electronic Files
1. Carnivore problem
a. FBI has program that surgically removes portions of only a targeted subject’s e-mail. Is this constitutional?
i. It seems that it would be. It takes care of the minimization requirement of title III automatically. The search is less intrusive than a Terry stop – you wouldn’t even know when it occurred. And the government interest seems high.
ii. It seems similar to a drunk driving checkpoint: a search that encompasses a wide net but is minimally intrusive and serves a specific end. Here you are not even conscious of the intrusion
2. The Stored Wire and Electronic Communications and Transactional Records Access Act (SWECTRAA)
a. Applies only to electronic communications transmitted on a system that affects interstate or foreign commerce, and then only to communications in electronic storage
b. Applies to data maintained on a remote service provider’s system, but not to stored communications residing on an individual’s hard-drive or to private, internal corporate computer networks
c. The law generally prohibits service providers from disclosing to the government information about or the contents of electronic communications stored incidental to the transmission process.
d. It then provides for government access through special procedures:
i. For more than basic subscriber information, or source, addressee, and routing information, it must generally apply for an order showing that the information is relevant to an ongoing investigation
ii. To obtain access to the contents of a stored e-mail, it requires
(a) A search warrant if the e-mail is 180 days old or younger
(b) Just a subpoena (with no showing of PC) if it is older
• But the owner must receive prior notice, unless it would jeopardize the investigation, in which case it can be delayed
e. Statute contains a civil damages remedy but no exclusionary rule
3. How would courts decide stored e-mail issue?
a. Subscriber information
i. This is in the public domain, probably does not constitute a search
b. Addressing information
i. Is there a reasonable expectation of privacy here? Does it matter if you have received the e-mail (or the recipient has received it) yet? Is it analogous to a letter in the mail? Is that strictly in the public domain before it has been searched (even the addressing information)?
ii. The information is all on a server. It’s not on your computer. What is the appropriate analogy?
iii. Nobody sees the e-mail except the proper recipient (not even it’s outside form). So which way does that cut? With mechanized sorting, an actual person never sees the letter as well. (well, the mailman does)
iv. Is e-mail more or less private than an actual letter? It may be less private, because it is so easily forwarded. Also, it is often viewed in public places where others can view it.
c. Content
i. Is this any different from the content of a fed ex package? This would most certainly constitute a search.
ii. So why does congress come up with this 180 day rule? It seems pretty arbitrary. The stuff you save is often the important stuff.
iii. Would a good analogy be to a voicemail message? What if we called it a file? Don’t you need warrants to search physical files?
(a) This seems especially specious if you haven’t even opened the e-mail.
(b) But if it’s a file, the information on grand jury subpoenas seems to cut against the need for a warrant.
4. USA Patriot Act
a. This lessened the requirements governing the acquisition and disclosure of grand jury, electronic, foreign intelligence, and search warrant information for a criminal investigation
b. Post Sept 11 – the balance may have shifter – government concern seems to be greater than it was previously
c. Expressly authorizes voicemail to be obtained with a warrant rather than an intercept order.
D. Undercover Agents and Entrapment
1. Objective entrapment
a. Looks to the conduct of the police – did the police offer inducements that are of a sort to which even normally law-abiding citizens would respond?
b. More likely to be a question of law for the judge
2. Subjective entrapment
a. Looks to a defendant’s “predisposition” to commit crimes by affording a defense to a person who was induced, but cannot be shown to be otherwise predisposed in that direction
b. More likely to be a question for the jury
3. Jacobson v. United States
a. Employs the subjective test
b. Farmer who likes kiddie porn buys some. The law is changed outlawing kiddie porn (a dark day in our nation’s history) and agents get D’s name off kiddie porn mailing list. Inspectors send D various letters from fabricated kiddie porn societies such as “American Buggery Society” until finally, D orders some kiddie porn.
c. Held: D was entrapped.
i. D was not disposed to commit the criminal act “prior to first being approached by government agents,” though he was certainly predisposed after reading about the “American Buggery Society.”
ii. The original purchase could have been mistaken, as D claims, after which he was convinced that he should buy kiddie porn by the government’s persuasive brochures
iii. Evidence that merely indicates a generic inclination to act within a broad range of activities, not all of which is criminal, is of little probative value in establishing predisposition.
(a) D has the predisposition to get off watching kiddie porn.
(b) But he might not have had the predisposition to break the law were it not for the rascally government.
d. Holding entails that the government must prove not only that a suspect was predisposed to commit the crime before the opportunity arose, but also before the government arrived on the scene.
i. This seems unreasonable, as it would mean that the government must have a reasonable suspicion of criminal activity before it begins an investigation.
4. Entrapment is not duress. There is a lower standard. The rationale behind entrapment is that we shouldn’t persuade people to commit crimes for the purpose of punishing them, not that they somehow lacked agency, or that any reasonable person would have done as they did.
5. There are new FBI guidelines that attempt to regulate improper relationships between undercover agents, informants, and their various lesser forms.
E. Grand Jury Investigations
1. Grand juries were historically enacted to protect the accused, but now they serve as a tool of investigation for prosecutors.
a. They can compel witnesses to testify without (gasp) reading Miranda
b. They can compel witnesses to produce evidence
2. United States v. R. Enterprises
a. Standards for compliance with subpoenas duces tecum issued in compliance with grand jury investigation
b. “The government cannot be required to justify the issuance of grand jury subpoenas by presenting evidence sufficient to justify the probable cause because the very purpose of requesting the information is to ascertain whether probable cause exists.”
c. Therefore, “a grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials.
d. Federal Rule of Criminal Procedure 17(c) applies
i. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive.
e. Holding: where the subpoena is challenged on relevancy grounds, the motion to quash must be denied unless there is no reasonable possibility that the materials sought will produce information relevant to the general subject of the investigation.
i. Rule: the subpoena must seek relevant material, it must not be unreasonably broad, and it must not be unreasonably oppressive
3. Secrecy
a. In Re Sealed Case
i. Parties to a grand jury investigation are not allowed to disclose “matters before the grand jury,” to the public.
ii. Oh but they do. Ken Starr leaks lots of salacious details to the Times. How shall we respond?
iii. It’s ok. You can leak some things.
(a) If the information is already in the public domain, or if one is only postulating on one’s belief as to what one should do, but isn’t strictly a “matter occurring before the grand jury.”
(b) This really matters not at all to the course.
iv. What might be relevant about this case:
(a) The policy question of why we allow this protection to a group of people who are likely to be, strictly speaking, rich.
(b) One might argue that grand jury investigations allow for much fewer protections than regular old interrogation and investigation.
4. United States v. Dionisio
a. A subpoena to appear before a grand jury is not a “seizure” in the Fourth Amendment sense.
b. Therefore, citizens are not generally constitutionally immune from grand jury subpoenas.
c. The fourth amendment is somewhat relevant to subpoenas duces tecum (United States v. Henkel) but only very slightly.
5. How Can This Be?
a. Grand juries are the people, not police, so they can do what they want.
b. Also, a self-search is perhaps less intrusive than a “now take of all your clothes” search. But if this were the deciding factor, it would seem that police could order self-searches. But alas they cannot.
VI. The Fall of Boyd and Lots of Confusing Doctrine (or, why the hell does this go here?)
A. What Boyd said:
1. We didn’t read Boyd, but here is what it said, from what I can tell.
a. The fourth and fifth amendment overlap, because the fifth amendment means that nothing belonging to a person that indicates his thoughts may be used against him, as that is the same as compulsion to testify, or some other such nonsense.
b. We no longer follow Boyd at all.
c. The 5th amendment does not strictly mean that “the government cannot force a person to make its case against him.” They do that all the time.
2. In Fisher v. United States and Andresen v. Maryland, the government could demand documents prepared by accountants on behalf of the D’s.
B. Producing Documents
1. In Fisher and Andresen Court has held that producing a document is not testimonial because the prosecution already knows that it exists, and its contents aren’t protected, except
a. That by producing, the D admits that he knows of the documents, and that he thinks these documents are those that the government is referring to.
b. So if there is an independent basis of knowledge that D knows of these documents, then there is no compulsed testimony.
c. So long as the government did not compel the production, then the content of the papers is not protected.
C. What this means
1. Other aspects of Boyd were overruled long before Fisher and Andresen, in that a prosecutor may most certainly use private papers obtained through a legal search warrant against an individual.
2. Law enforcement now depends on information, and we can’t have nasty old Boyd getting in the way of our trust busting. So people have to turn over documents and should stop whining if it seems to violate the 5th amendment when thought of abstractly.
3. “Boyd style privacy protection was not compatible with activist government because government cannot be very activist if it cannot force people to tell it things.”
4. Justice White: if you are being forced to tell the truth, there is no 5th amendment problem – it is only if you are being forced to perjure yourself when asked to tell the truth. This seems like a good organizing principle for these last cases.

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