Persons, Houses, Papers, and Effects Olmstead v. United States RULE: Wire tapping is not a search/seizure.

. (OVERRULED) Facts: Suspected bootlegger. Without judicial approval, federal agents installed wiretaps in the basement of Olmstead's office building and in the streets near his home. Issue: Whether info gathered by police from wire taps violated 4th Amendment rights to be free from unreasonable search and seizure Majority (Taft): wire tapping WAS NOT a search and seizure o Conversations are not material things- not physical property- no physical trespass to tap o Phone lines owned by phone company so electrons in line not owned by Ds Dissent (Brandeis): becomes majority in Katz o This is about right to privacy- times change Phone Companies: want bootleggers to win because they are on the side of the customers who pay them; also dont want customers to stop using them for fear of being tapped Dissent (Butler): Companies contract with people when pay to use line- property interest trespass

Katz v. United States- expectation of privacy test

RULE: 4th Amend. is violated where officers, without a warrant, wiretap a public phone booth and record a Ds conversations because searches conducted without a warrant are per se unreasonable, subject only to a few exceptions. Facts: FBI listening to Katz in public telephone booth through a device attached to outside of booth Majority (Stewart): phone booth is protected o 4th Amendment protects people, not places- phone booth is temporary private place o Phone are super common- would create a big problem for our way of life if not protected Concurrence (Harlan): 2 prong test for 4th Amendment o 1) subjective expectation of privacy o 2) society must be prepared to recognize the expectation as reasonable Dissent (Black): no Const. right to privacy- shouldnt be trying to keep Const. up to date

Oliver v. United States RULE: Open fields cannot support a right to privacy and so not protected by the 4th Amend. Facts: Acting upon a tip that D was growing weed on his property, two cops went on his land, past house and up to a gate marked with no trespassing sign. Left their car and walked a mile past the gate and found marijuana fields. Majority (Powell): not an unreasonable search

o open fields doctrine permits police officers to enter and search a field without a warrant o Fields are not effects so cannot demand privacy for activities outdoors in fields except in curtilage o Signs and fences dont always effectively keep public out- police couldve observed from the air Concurrence (White): o No expectation of privacy here because people wander through fields- not reasonable Dissent (Marshall): o The expectation here is definitely reasonable- property is owned and trespass is a crime, spot couldnt be seen from any vantage point open to public o People like to take walks, conduct business, worship, meet lovers, etc. in privately owned woods and fields- Ds here also posted signs showing desire to keep public out

Searches Arizona v. Hicks

RULE: PC is required to touch/move something in a house that is not in plain view. Facts: shooting cops come in apartment trying to stop and arrest the shooter; find guns, stocking mask, some expensive looking stereo equipment; officer flips turntable upside down and discovers serial number; had reasonable suspicion that turntable was stolen, but no PC to move it Majority (Scalia): SEARCH- needed PC o Search is unreasonable because its in house- ALWAYS unreasonable when in house without a warrant- but could seize stuff in plain view because lawfully therecouldnt move anything though o Sometimes criminals get away and maybe cop just couldnt have done anything here Dissent (OConnor) o Just a cursory inspection- only touched it a bit and no rummaging- trying to distinguish from a search

United States v. Miller- bank and checks

RULE: No legitimate expectation of privacy in information voluntarily given to third parties. Facts: Bank turned over checks and deposit slips to police. Majority (Powell): o No legitimate expectation of privacy- depositor takes a risk that his information could be revealed Dissent (Brennan): police abuse of power possible, Const. has to keep up with times Dissent (Marshall): Act allowed police to get around 4th Amend. by having claims too early and then too late

What is wrong with reasoning here: Sup. Ct. says no expectation of privacy when sharing info with a commercial entity. Congress enacts stuff after this because this decision is too stupid- Katz rule is problematic because makes this ok when it clearly shouldnt be

California v. Greenwood- trash

RULE: The Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home. Facts: Officer asked trash collector to pick up the Ds garbage bags left on the curb in front of his house and turn bags over to her; officer searched through the rubbish and found items indicative of drug use from which she obtained a search warrant Majority (White): o Was there an expectation? Maybe- everyone has an expectation of privacy in everything that was once theirs because this would never end o Was it reasonable? No- raccoons and kids could go through t so not really private Dissent (Brennan and Marshall): o Looking at other peoples trash is against civilized behavior o Expectation of privacy was reasonable here

Difference from Miller (come out the same but different reasons) o Miller said you trust the bank like an informant and the bank betrayed you so too bad o Greenwood said sometimes things go wrong like raccoons, stealing United States v. White- informants RULE: 4th Amend. does not protect conversations between D and government informant that are overheard through a concealed radio transmitter. Majority (White): o A previous case (Hoffa) held that no matter how much a D may trust an apparent friend, his expectations are not protected o Agents can transcribe their personal conversations with suspects without violating rights and can use these in evidenceno difference constitutionally by recording conversations with a device or by transmitting to agents monitoring elsewhere o Policy- recording also means more accuracy, less likelihood that informant can change his mind or can be threatened not to testify Dissent (Douglas): o If government can wiretap, people cant say dissonant things about the government o Monitoring others kills free discourse and spontaneous utterances o Privacy is the basis of individuality and if people think others could be listening and reporting what they say at any time, theyll just stop saying what they think for fear of being judged or punished Florida v. Riley- helicopter RULE: Police can fly over property but must be on a routine path and at a lawful height.

Facts: Police received a tip that dude was growing pot on his property. Police could not see inside a greenhouse. Officer circled above the property in a helicopter and could see inside greenhouse through two broken panels with their naked eyes. Warrant was obtained and pot found in greenhouse. Plurality (White): o Definitely expected that his greenhouse would not be open to inspection and he took precautions against ground level inspection (signs, fence) BUT 2 sides of greenhouse were not enclosed and some roof panels were missing- unreasonable to think it was protected from air observation, especially when flights are so common o Officer did no more than a normal member of the public could have done/observed Concurrence (OConnor): o Question here is whether public travels overhead at such altitudes with enough frequency to make Ds expectation of privacy unreasonable- in this case there is enough public use of the airspace that expectation was unreasonable and he didnt introduce any evidence to contrary Dissent (Brennan): o Normal members of the public could not share in the officers view- costs a lot of money and special equipment to do this- now the government will just become a creeper

United States v. Place- drug dogs RULE: Drug dogs can sniff your luggage BUT 90 minutes holding your luggage is too long. Facts: Places behavior and weird luggage tags made officers think he was carrying drugs. Relayed info to fellow agents at his destination airport, who met him and seize his bags without his consent. 90 minutes after the seizure, the bags were subjected to a drug dog sniff. Dog signaled presence of drugs. Agents got warrant and opened suitcase to find cocaine. Majority (OConnor)- OK search, but unreasonable seizure o Too long because held up his schedule and could have missed his flight- couldve brought dog to airport o Since seizure was unreasonable, any evidence obtained from the search is inadmissible Concurrence (Brennan)- Since Terry doesnt apply to seizure of property, normal rule that there must be probable cause should have been followed United States v. Jacobsen- FedEx package RULE: A chemical test which exposes merely whether a substance is cocaine does not compromise any legitimate expectation of privacy. Facts: Employee found ripped package and then opened it. It contained white powder so called DEA. Before DEA got there, they rewrapped the package up. DEA arrives and unwrap package and remove tube, and then do field test on the substance. It shows it was coke, go arrest Jacobsen. Majority (Stevens)

o Parcel was definitely an effect but private searches were not a violation because not by government o Both actions by DEA were reasonable- removing stuff from the box wasnt a search because didnt enable agent to learn anything he didnt already know/wasnt already done and field test can only determine if substance was cocaine and nothing else so no legitimate privacy interest is compromised Concurrence (White) o Would mean that situations where a private party has seen what was sealed in the package or has overheard what was in the package would no longer need a warrant to be searched o Different from Greenwood (which came after) because garbage was just out there. Here, people are going through it, re-sealing it, then giving to the government, who opens it without a warrant when should have told the judge they had the box and requested a warrant. Dissent (Brennan) o Persons attempt at hiding an items existence or trying to keep the public from seeing it should be the key to determining whether there was a reasonable expectation of privacy Kind of like Miller- Fed Ex betrayed you so its your fault for trusting them

Seizures California v. Hodari D.

RULE: A suspect who runs from the police is not seized until he is physically restrained. Facts: Group of kids huddled around a car, run away when they see a cop. Cop chases Hodari on food and when hes almost going to catch him, Hodari tossed away crack Issue: Was Hodari was seized at the time he dropped the drugs? Majority (Scalia): NOT seized illegally (on police side) o To constitute an arrest/seizure of the person, just grasping or using PHYSICAL FORCE is sufficient whether or not succeeds in subduing person running constructive detention requires only touching o Arrest requires EITHER physical force OR when no physical force, submission to assertion of authority o Even if there was show of authority, since Hodari did not comply, he was not seized until actually tackled since no seizure, drugs can be used in evidence Dissent (Stevens, Marshall): YES seized illegally o Trying to broaden the definition of a seizure- Mendenhall test says seizure is when reasonable person would believed that he was not free to leave in view of everything going on

Florida v. Bostick

RULE: To determine a seizure, a court must consider all circumstances surrounding the encounter to determine whether police conduct would have

communicated to a reasonable person that he was not free to decline the officers requests or otherwise terminate the encounter. FACTS: Two officers, with badges, and one of them holding a pistol, boarded a bus; one requested the Ds consent to search his luggage while another blocked exit; after the D consented, officer found cocaine Issue: whether a police encounter on a bus where the officers randomly picked out a guy and asked to search his stuff constitutes a seizure. Majority (OConnor): NO- remanded to find facts on circumstances o Freedom of movement was restricted by bus and not by police conduct so free to leave analysis (Mendenhall test) is inapplicable here since he chose to take the bus o Reject idea that he must have been seized because no reasonable person would consent to a search of bags they know contain drugs Dissent (Marshall, Blackmun, Stevens): o AGREE WITH THE RULE majority decides BUT dont agree with majoritys answer to the rule here that this guy did feel free to decline and could have terminated the requestofficers were blocking his exit; one had an obvious gun although not using it; if he got off the bus it would have left him in an unfamiliar environment o By doing this bus dragnet sweep, officers are giving passengers 2 choices: either cooperate or get off the bus somewhere unfamiliar- really no choice and that is why they do these sweeps in the first place

United States v. Drayton

RULE: An officers conduct does not amount to a seizure merely because he does not advise a suspect of right to refuse to cooperate in a search. FACTS: Three officers boarded a bus; one knelt on the drivers seat and faced the rear; one went to the rear of the bus and faced forward; the other worked his way toward the front of the bus, speaking with individual passengers as he went; to avoid blocking the aisle, the officer stood next to or just behind each passenger, speaking politely and quietly to each individual; and, after asking the Ds if could search their person, the Ds agreed, revealing drug packages duct-taped to their boxers. Majority (Kennedy): o Not a seizure- officer was not brandishing weapon, blocking exit, threatening, speaking loudly, etc. o Would be constitutional on the street and just because its on a bus here doesnt make it a violation- person might feel even more secure with so many other passengers there o Well established that police dont have to inform of right to refuse- just one of the circumstances Dissent (Souter, Stevens, Ginsburg) o See facts differently- cramped, close area; bus driver had left making it seem like custody/control of bus was now in hands of officers; took control of entire passenger compartment; no one was asked if willing to cooperate more required of officer in this situation- he should have warned

Brendlin v. California- unanimous decision RULE: A passenger of a car is seized when an officer makes a traffic stop. FACTS: Officer pulled over a car without adequate justification; he saw that the passenger was a parole violator with an outstanding warrant for his arrest. Officer ordered D out of the car at gunpoint and declared him under arrest. Search of the Ds person revealed a syringe cap. Search of the drivers person revealed syringes and a green leafy substance, and a search of the car revealed tubing, a scale, and other things used to produce methamphetamine. Issue: whether, since a driver is seized during a traffic stop, a passenger is also seized and may therefore question the constitutionality of the stop. YES Majority (Souter): o A reasonable person here would have understood that officers were trying to control situation and no one was free to leave without their permission o Traffic stop just as effectively stops the passenger from travelling as the driver, diverts both from stream of traffic to the side of the road, dont feel like they can get out of car and leave Probable Cause Brinegar v. United States RULE: PC exists when officers know of facts/circumstances or have trustworthy information that would make a reasonable person think a crime is being committed. Facts: Brinegar was coming from MO (wet state) and going to OK (dry state). Car was also low to the ground and looked heavily loaded. Officer had seem him load more alcohol than he could consume himself on previous occasions. Officer knew Brinegars reputation and had prior contact in arresting him. Issue: Was there PC to pull them over? Majority (Rutledge): o Facts are just like Carroll case and since not distinguishable, has to be found that there was also PC here o PC: specific, articulable, objective facts that make probable that person is committing a particular crime o Stricter definition law enforcement would be more difficult o More relaxed definition police would have PC for everything Dissent (Jackson): differs at when PC was needed o Depending on the crime, maybe it would be ok to stop every car and search it, such as if there were a kidnapped child- but to just catch a bootlegger and some liquor that would not be ok o When cops started chasing him at high speeds and forcing car to stop, took initial steps to an arrest, search, or seizure and didnt have PC at that point, although they thought they did in their own minds

Draper v. United States- beginning of anonymous tips Issue: whether knowledge of facts and circumstances gave the officer PC to believe that Draper had drugs.

Facts: Informant said that D would arrive in Denver on a train from Chicago on one of two days and he would be carrying heroin. He would be wearing a light colored raincoat, brown slacks, and black shoes and would be walking real fast. Informant also supplied a fairly detailed physical description of D. Police went to train station and saw someone fitting this description. Arrested him and found drugs. Majority (Whitaker): o Informants information had been good before and when officer saw everything informant had told him, it was reasonable for him to think since everything else was true, also true Draper was carrying drugs o Reasonable for officer to think information was reliable because informant was probably supposed to meet Draper and they prearranged itknew in advance very specific details o PC means arrest, search, and seizure were lawful- drugs were correctly in evidence

Dissent (Douglas): o Informers word was not enough for PC- if officer wants to act without a warrant, he must act on some evidence known to HIM, otherwise informants become supreme and we have country of snitches Illinois v. Gates

RULE: PC requires substantial basis for concluding that a search would uncover evidence of wrongdoing. Facts: Anonymous informant wrote that wife would drive to FL, load up car with drugs. Husband would then fly down and drive it back while wife flies back. On May 3rd, wife would make her next drive to FL. Officer confirmed that husband had boarded a flight to Miami on May 5th and the two left their hotel the next morning, driving north on a highway frequently used by travelers. Search warrant for house and car was obtained on these facts, even though this time wife drove back with husband instead of flying. Aguilar Spinelli 2 prong test: (stricter than totality of circumstances which is the actual rule) o Informers basis of knowledge for information in the tip o Veracity- quality of the informer Majority (Rehnquist): o Better to have a totality of the circumstances approach because 2 prong test is too technical for cops to use because theyre not lawyers- would impeded police because anonymous tips would never survive application of the 2 prong test and a lot of times that is the only way to solve a crim o Probable is not technical but common sense judge here had substantial basis for concluding PC Dissent (Brennan, Marshall): o New test is bad- 2 prong test makes sure the magistrate is unbiased and allows for greater accuracy o Drug trafficking sucks, but we shouldnt just adopt broad rules to deal with it Dissent (Stevens, Brennan): Disneyworld/Seaworld o Discrepancy between reality and tip casts doubt on reliability of informant and makes unreasonable

o PC existed when back from trip because the husband made a 22 hour tripwhile it is possible this is innocent, it is LIKELY drug trafficking because odd stuff is going on Maryland v. Pringle-unanimous decision

RULE: Where an officer has PC to believe that a crime has been committed in an automobile, he can arrest each of the passengers. Facts: Officer pulled over car for speeding. Driver, upon opening the glove compartment, revealed a large amount of rolled up money and consented to a search of the car. Search yielded $763 from glove compartment and five baggies of cocaine from behind the back seat armrest. Officer arrested all three men after none claimed the drugs. Later, D, who was front seat passenger, said drugs were his. Issue: Not whether a crime had been committed, but whether officer had PC to believe that Pringle committed the crime. Majority (Rehnquist): o To determine if officer had PC to arrest Pringle, have to look at events leading to the arrest and then decide if the facts amount to PC from the POV of a reasonable officer o Inference that everyone at the scene of a crime is involved disappears when an informant singles out the guilty person this didnt happen here- reasonable to think any/all were involved

Searches and Seizures without Probable Cause Terry Stops: Reasonable Suspicion Terry v. Ohio- Sup. Ct. holds for first time ever that dont always need PC for search/seizure RULE: Where a cop observes unusual conduct that leads him to reasonably think from his experience that some shit is going down and nothing has dispelled his fear for his own and others safety, he can do this kind of weapons search. Facts: Officer had 30 years experience as a detective of robberies in the neighborhood; he observed two men hover on street corner, obviously not waiting for anyone, pacing alternately along an identical route, pausing to stare in the same jewelry store window two dozen times; each completion of this route was followed immediately by a conference by a third man who left quickly. The two men followed the third and rejoined him a couple blocks away. Officer approached men, identified himself as an officer, and asked for their names. When one mumbled something in response, officer patted down outside of his clothing, felt a pistol. Removed overcoat completely and took pistol from pocket. Issue: Is it always unreasonable for a cop to seize a person and subject him to a limited search for weapons unless there is PC for an arrest? Majority (Warren): o There is no difference between stop and frisk and search and seizure dangerous to consider these two things different because would isolate the

beginning of the police encounter so that it is not constitutionally scrutinized BUT dont need PC o Protective search for weapons is not the same thing as a full blown arrest o In determining whether it was reasonable Was it justified at its inception? Was it reasonably related in scope to circumstances which justified interference in first place? o Here, officer was reasonable in thinking Terry had weapons and limited his search to only weapons by patting down instead of searching pockets revolver was properly in evidence Concurrence (Harlan): limited frisk has to be rapid and routine Dissent (Douglas): o This was a search and seizure but was unconstitutional because no PC to believe a crime had been, was in the process of, or was about to be committed- this holding says police have a greater authority to make a search and seizure than a judge has to authorize the action This situation gave the Sup. Ct. limited options- civil rights movement meant they had to draw difficult lines o Cannot redefine PC would pretty much eviscerate its meaning o Cannot stick to the prior rule police could only stop someone after situation had become dangerous o Cannot say a not search and seizure would make stop/frisk not subject to constitutional scrutiny o Court instead chooses to use a balancing test and try to specifically circumscribe when dont need PC and only reasonable suspicion is necessary Terry is limited in scope of search- can only search for weapons- joint would not be admissible because doesnt feel like a weapon

Adams v. Williams RULE: Extends Terry to investigative stops for possessory offenses. Facts: Officer was in a high crime area at 2 am when he was approached by an informant who told him that dude sitting alone in nearby car was carrying drugs and a gun. Officer went to dudes car and grabbed a gun from same place informant said it would be. Officer then searched car and found more weapons and drugs. CT had statute at the time that said people who have permits could carry concealed weapons Majority (Rehnquist): o Officer was justified on these facts--even though tip wouldnt have been enough for arrest or warrant, it was enough for forcible stop- also reasonable to seize gun because high crime area at 2am with a guy alone in car reasonable for officer to fear for his safety o After he found gun, had PC to arrest since gun implied tip was further reliable Dissent (Brennan):Terry was meant for cases of potential serious harm, not possession, and if it is to be extended, officer should observe himself or have information better than a tip

Dissent (Marshall, Douglas): Treating warrantless searches as the rule rather than the narrow exception they were supposed to be from Terry there was no threat here and it was therefore not a protective search Adams court reads Terry as creating 2 different tests: one for a brief investigative stop (seizure) and one for a frisk for weapons (search)

Florida v. J.L.- unanimous

RULE: An anonymous tip lacking indicia of reliability does not justify a Terry stop when it just alleges the illegal possession of a firearm. Facts: Anonymous caller reported a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun; responding officers saw 3 black males hanging out there, but no firearm was visible, suspects made no threatening movements and did nothing unusual. One of the cops approached the kid in the plaid shirt, had him put his hands upon on the bus stop, frisked him, and seized a gun from his pocket Issue: Is an anonymous tip, without more, that a person is carrying a gun sufficient for cop to stop and frisk? Majority (Ginsburg): NO- cant do this o Call gave no predictive information, so no way for police to test the informants knowledge or credibility o Tip about persons location and appearance doesnt show any kind of knowledge about illegal activity o Would lead to calling in on neighbors for fun and police could make up tips o This decision is only for cases where the officers authority to make the initial stop is at issue

Illinois v. Wardlow

RULE: Flight is one factor to consider in totality of the circumstances test to determine reasonable suspicion for a Terry stop. Facts: Officers patrolling heavy drug area, observed D standing next to a building holding an opaque bag. D saw officers and ran. Officers cornered him, did a pat down search for weapons because, in officers experience, it was common for there to be weapons in the near vicinity of narcotics transactions. During pat down, officer squeezed the bag, felt the shape of a gun, and found a handgun inside. Majority (Rehnquist): stop did not violate 4th Amendment o High crime areas and nervous/evasive reaction to police are factors in determining reasonable suspicion, even though some people get nervous and might run and still be innocent- OK to be ambiguous because just have to be reasonable Concur/Dissent in parts (Stevens, Souter, Ginsburg, Breyer) split on how law applies to facts here o Cannot agree that officer had reasonable suspicion to stop the runner here because of factual insufficiency- nothing suspicious about opaque bag; afternoon time; police not responding to a call

Terry Stops: Scope of a Terry Stop

United States v. Sharpe- outer limits for a Terry Stop. Facts: Area where there is a lot of drug trafficking. Officer sees pick-up truck with a camper, which is weighed down. He followed vehicles for 20 miles, he has already decided to make a investigative stop and had called for backup when they turned off highway onto camp ground road. Driving 55-60mph in a 35mph zone. Get back on the highway, officer pulls next to first car and motions for them to pull over. Pick-up truck cuts between car and police car and continues. The backup continues to follow camper, who refuses to pull over, and cop eventually forces his car over down the road. First cop calls second cop, but no response. Calls local police and 10 minutes later they arrive. First cop asks them to maintain the situation while he goes to second cop and camper. Second cop has asked ID and has him spread eagled against truck, and when he asks to leave, and second cop says no because first cop is on his way. First cop gets there 15 minutes after truck had been stopped. Looks at documents, asks permission to search camper (denied), stepped on rear of truck and saw it didnt sink, and then says he smelled pot. Took keys out of truck and opened camper. Everyone is arrested, all without a search warrant. Majority (Burger): o Use Terry test of whether officers action was justified at its inception and whether it was reasonably related in scope to the circumstances which justified it o Detaining for 20 minutes meets 4th Amend. reasonableness because DEA agent pursued investigation in reasonable manner attempting to contact other officer, enlisting help of local police, checking license and registration quickly AND delay was actually Ds fault because he tried to elude police Concurrence (Marshall): importance of Terrys brevity requirement Dissent (Brennan): Flight alone doesnt give rise to PC

Minnesota v. Dickerson RULE: Contraband detected through sense of touch during a pat down search can be admitted into evidence when officer does not overstep his bounds by squeezing object. Facts: While exiting apartment building with history of cocaine trafficking, Dickerson spotted cops and turned to walk in the opposite direction. Officers commanded him to stop and then frisked him. Officer discovered lump in his jacket pocket, and, upon further touching, believed was cocaine. Officer reached into pocket and confirmed that lump was small bag of coke. Dickerson was arrested and charged. Issue: Can contraband detected through sense of touch during pat down search be admitted into evidence? Majority (White): YES but not ok here o Plain view doctrine is similar to when officer discovers contraband through touch o If officer is lawfully patting down a suspects clothing and feels something, there is no invasion of privacy beyond what was already authorized by search for weapons and this can be seized without a warrant o Officer here overstepped bounds because record shows he felt object in a pocket that clearly did not contain weapons and then squeezed and slid it around although he knew there was no weapon

Brown v. Texas- unanimous Facts: Observed 2 guys walking away from each other in an alley, officers thought they had been together or were about to meet, got out and asked suspect what he was doing, looked suspicious but didnt see any specific misconduct, suspect refused to identify himself and cant stop him, they frisked him and arrested for refusing to give his name to officer Majority (Burger): violation of 4th Amend. o None of circumstances preceding suspects detention justified a reasonable suspicion that he was involved in criminal activity, no objective facts here- obvious that police just wanted to show presence

Consent Searches Voluntariness Bumper v. North Carolina Facts: Grandmother of accused rapist/murderer lets in police after they say they have a warrant and she says go ahead. Officers did not actually have search warrant. Found a gun in the house which was later admitted into evidence. Issue: whether a search can be justified as lawful on the basis of consent when that consent has been given after the officer says he possesses a warrant? Majority (Stewart): NO o In a search conducted without a warrant, the state has the burden of showing the constitutionality of the governments conduct- when officer said he had a warrant, he was basically saying that she could not object- this was coercion or colorably lawful coercion so no consent There was a warrant in this case but prosecution did not rely on it and renounced their reliance on it, relying only on consent, which is why there was no warrant Dissent (White): If state can produce the warrant, it should not matter that at the time of the search, they relied on consent and didnt actually serve the warrant Schneckloth v. Bustamonte RULE: When the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the consent must be voluntarily given, and not the result of duress or coercion, express or implied; and voluntariness is a question of fact to be determined from all of the circumstances. Facts: An officer pulled over a car for a burned out headlight; the driver agreed to let the officer search his carand even helped the officer in the search; and the search revealed three stolen checks which belonged to the D passenger. Issue: What is consent? What must prosecution prove to demonstrate that consent was voluntarily given?

Majority (Stewart): o Court has looked at all of circumstances and factors like characteristics of D and details of the interrogation to see if it was voluntary, but has never ruled that prosecution has to prove that D knew he had a right to refuse to answer questionsthese are just factors o Consent searches can be completely valid and legitimate, but dont need to give warning that dont have to consent- consent searches happen all the time in often quick and informal circumstances Dissent (Brennan): wrong that citizens can waive a constitutional right without ever being aware that it existed in the first place

Capacity United States v. Matlock Facts: Matlock was arrested in front yard of his residence. He leased from the owner and lived there with his girlfriend in the same bedroom. Officers knew he lived there but did not ask him which was his room or if they could search it. Mrs. Graff did consent to officer searching the cohabitated bedroom. Police found a bunch of case in a diaper bag and Matlock was indicted for robbing a bank. Issue: Was Mrs. Graff allowed to consent to the bedroom being searched? Majority (White): YES o Past Sup. Ct. cases make it clear that consent does not have to be given by Dpermission to search can come from third party who has common authority or a sufficient relationship to the premises/effects o Similar to the bank case- banks records are theirs are they can do anything they want with it Dissent (Douglas): could have gotten a search warrant but didnt Illinois v. Rodriquez RULE: A warrantless entry is valid when based upon the consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises. Facts: Police responding to a report that D had beat his girlfriend. Girlfriend offered to bring police to Ds apartment to unlock the door so cops could arrest him. She said several times that the apartment was our apartment, that she had clothes and furniture there. Officers went inside after she unlocked the door and found narcotics in plain view. In actuality, she had moved out and no longer slept there. Issue: reserved from Matlock, whether a warrantless entry is valid when consent from third party who the police believe to have common authority at the time of the entry but actually does not Majority (Scalia): o The woman did not possess common authority, but 4th only requires officers apply their judgment reasonably when determining if someone has common authority couldnt have entered if she consented but it was unreasonable to believe her Dissent (Marshall, Brennan, Stevens): only a warrant or exigent circumstances can produce reasonableness

Disagreement probably stems from an underlying disagreement over the purpose of warrants Stoner v. CA: police cant enter a hotel room with just consent of hotel manager

Special Needs Searches Administrative Searches New York v. Burger Facts: Officers go into junkyard, ask to see license and record, but he says he doesnt have them although he is required to have them by statute. They inform him they are conducting a search pursuant to the statute, he doesnt object, and they search, finding stolen vehicles and parts. Issue: whether warrantless search of automobile junkyard pursuant to statute authorizing search, falls in exception to the warrant requirement for administrative inspections of regulated industries YES Issue: whether a proper administrative inspection is unconstitutional because it may disclose violation of penal statutes as well as the regulatory statute NO Majority (Blackmun): o Owners/operators of commercial premises in a closely regulated industry have a reduced expectation of privacy 4th Amend. warrant and PC requirements have less application o Warrantless inspections of commercial premises may be reasonable if 3 criteria are met: Substantial government interest- increasing car theft Warrantless inspection must be necessary to further the regulatory schemepreventing junkyards from becoming markets for stolen cars Statutes inspection program must provide a constitutionally adequate substitute for a warrant (must advise owner that search is being made and limit scope of officers)- informs owners that inspections will be made on regular basis and sets scope of who can inspect and what for Dissent (Brennan, Marshall, OConnor) o No objection to the general rule that warrantless inspections of a very regulated business are valid if they further a state interest and statute limits the time, place, scope BUT vehicle business is not closely regulated- this was just a pretext search

Michigan Dept. of State Police v. Sitz Facts: Sobriety checkpoint program aimed at reducing drunk driving within the state. Program included guidelines governing the location of roadblocks and the amount of publicity to be given to the location of roadblocks. Before the first roadblock went into effect, Rick Sitz, a licensed Michigan driver, challenged the checkpoints and sought declaratory and injunctive relief. Issue: whether sobriety checkpoints violate 4th and 14th Amends. Majority (Rehnquist): NO o No discrimination here- theyre just pulling over all cars

o Balancing tests weighs in favor of the state states interest in preventing serious problem of drunk driving, the extent to which the checkpoints advance this interest, and the slight degree of intrusion on drivers make the checkpoints consistent with 4th Amend. Dissent (Brennan, Marshall): even slight search/intrusion requires individual suspicion Dissent (Stevens): doesnt work, not deterrent and big difference between seizure with fair notice and one made by surprise- a fixed checkpoint is less intrusive because people know it is there and can adjust which is why immigration checkpoints are ok (fixed, permanent, during the day, only check ID papers, not behavior)

Samson v. California Facts: Officer stopped and searched Samson on the street. Officer had no warrant and later admitted he had stopped Samson only because he knew him to be on parole. Officer found that Samson was in possession of meth. Samson was arrested and charged with drug possession. Issue: whether a suspicionless search, conducted under the authority of a statute that says parolees must agree in writing to be searched any time of day without a warrant or cause, violates the Const. Majority (Thomas): NO o Parolees have less expectation of privacy just because of their status- parole is like imprisonment because prisoner is released on the condition that he abide by certain rules until the end of his sentence, and often the state only gives parole because it can impose rules o States interests are substantialparolees more likely to commit crimes again and state wants to promote reintegration and positive citizenship o Imposing a reasonable suspicion requirement would give parolees opportunity to anticipate searches and conceal crimes intensive supervision system is justified Dissent (Stevens, Souter, Breyer): no special need, this is unfettered discretion and parolee is not same a prisoner because reason prisoners have no expectation of privacy because of safety/internal order of prison- Court is implying that deprivation of 4th Amend. rights is part of any convicts punishment

Searches to Curb Drug Use National Treasury Employees Union v. Von Raab RULE: Safeguarding our national borders and public safety outweigh privacy expectations of employees required to carry a firearm and involved in drug interdiction for purposes of the Fourth Amend. Facts: Customs service employees have to do a urinalysis test before they can be promoted. Majority (Kennedy): o If you use drugs, you wont do your job because youre cracked out, youre more likely to take bribes, carrying a fire arm, more sympathetic to people coming in with drugs o Footnote 3- compares this to hijacking (but this is stupid)

Dissent (Scalia, Stevens): this is about more than just peeing- assuming everyone is guilty until theyre proved innocent, indignity

Indianapolis v. Edmond RULE: Suspicionless special needs searches cannot be based on general crime control purposes. Facts: Highway checkpoint to find drugs. At each roadblock, one officer would conduct an open-view examination of the vehicle while informing this was a checkpoint and asking for license. Another officer would walk a narcotics-detection dog around the vehicle. Each stop was to last five minutes or less, without reasonable suspicion or PC. Majority (OConnor): o Carrying drugs is not an immediate danger like drunk driving- no risk of immediate injury o Primary purpose was general crime control with no individualized suspicion Dissent (Rehnquist): reasonableness of the city's roadblocks depended on whether they served a "significant state interest with minimal intrusion on motorists- this is no big deal and we need to stop drugs

Ferguson v. City of Charleston RULE: The "special needs" doctrine is inapplicable when the immediate objective of a search without probable cause is to generate evidence for law enforcement. Facts: Hospital adopted a policy testing the urine of pregnant women suspected of using cocaine; positive test results were turned over to the police; the policy incorporated the police's operational guidelines; and the police were involved in the day-to-day administration of the policy. Majority (Stevens): o Not a special needs search, so treat as a regular 4th Amend. case o Purpose here is law enforcement so this is like Edmond, and cant search all these women for coke use just as you cant search all cars on the street for drugsultimate goal is to help law enforcement Dissent (Scalia): o This might be a search of the person or of effects but doesnt matter because special needs covers it o Addition of police purpose makes no difference as long as started out with legitimate purpose o Scalia argued opposite from this in Von Raab dissent- maybe he thinks here giving test to hospital because you want medical care from government whereas Von Raab makes you pee Public School Searches Vernonia School Dist. 47J v. Acton RULE: Suspicionless drug testing of student athletes in public schools does not violate the 4th Amendment.

Facts: Public school instituted policy that required all student athletes to submit to a pee drug test. Parents had unanimously approved of test because athletes were cool kids, and there was evidence from teachers and wrestling coach and kids were repeatedly rowdy in class. Pee test in front of teachers. Majority (Scalia): o 4th Amend. only requires reasonableness- reasonable here because primary purpose is to educate. Kids have a lesser expectation of privacy in school because school acts as guardian and must make kids behave in order to educate them. Also, parents agreed to this. o 4th Amend. doesnt apply to private schools because they are different (TLO case) o General search is better because no stigma on kids who are searched, wouldnt take teachers away from teaching and making them like cops, more efficient/makes sense in a public school context Concurrence (Ginsburg): only kids who voluntarily participate in sports so this is fine Dissent (OConnor, Stevens, Souter):No individualized suspicionjust testing all athletes and court has disapproved of blanket searches in criminal contextindividualized suspicion is required by 4th Amend.

Board of Educ. of Ind. School Dist. No. 92 of Pottawatomie County v. Earls RULE: Drug testing is a reasonable means of preventing and deterring drug use among schoolchildren participating in an activity, and as such, is within the limits of the 4th Amendment. Facts: school policy that mandated all students seeking to participate in extracurricular activities to consent to drug test before participation, random tests during participation and anytime there is reasonable suspicion. Main justification here was that drug use has increased in the nation. Drug test was in closed stall. Majority (Thomas): o No specific evidence of a drug problem (reminds of Von Raab) but assumption that all kids use drugs o Search is a reasonably effective way to deal with national drug problem- minimally intrusive nature and limited results of test does not compromise students expectation of privacy Dissent (Ginsburg): o People being tests are least likely to do drugs (national honor society, homemakers, academic team aka nerds). Need to do these activities to go to college- not really optional o Athletes in Vernonia were OK- have a lower expectation of privacy because everyone pays attention to them, they are leaders of the drug culture, and they shower together The 4th Amendment in Recurring Contexts (searches/seizures with PC) Persons: Need for Arrest Warrant Payton v. New York RULE: Absent exigent circumstances, searches and seizures inside a home without a warrant are presumptively unreasonable.

Facts: Officers had PC that D committed murder; at 7:30 a.m., six officers went to Ds apartment, without a warrant, intending to arrest him; after no response to their knocking, they broke the door and entered the apartment; and, although nobody was home, they seized a .30 caliber shell in plain view. Officers had 2 days to get a warrant but did not. Majority (Stevens): need warrant to arrest felon in his home- warrantless arrests in a public place are valid but there is a greater burden when officials enter a home without consent Dissent (White): o There are 4 restrictions on home arrests that protect private interests: person committed a felony, officers knock and announce, during daytime hours, have reason to believe person is inside house at time of entry (stringent + PC provides plenty of protection)

Steagald v. United States RULE: Warrantless searches are impermissible absent consent or exigency. Facts: Officers didnt have search warrant, only arrest warrant. Went to the home to arrest Lyons because they had a tip that he would be there because he could be reached at that phone number, but he wasnt there. They searched 2 men standing outside the house who werent Lyons but lived in the house. Officers then searched the house and find cocaine. Issue: whether an arrest warrant instead of a search warrant is adequate to protect 4th Amend. interests of someone not named in warrant when his home is searched without consent or exigent circumstances Majority (Marshall): o Warrant didnt authorize agents to search because issued only to arrest Lyons- may have protected Lyons from unreasonable seizure, but it didnt protect Steagald o Only protection Steagald had was agents personal determination of PC which is not ok absent exigent circumstances violation of 4th Amend. o Small inconvenience to police if they already getting an arrest warrant to also get a search warrant at the same time right of people to be secure in their homes outweighs small inconvenience to police Dissent (Rehnquist): o Government interests are compelling because trying to capture a MOVING fugitive o Arrest warrant still protects other people by assuring them that officer is there on official business and limits scope of search to areas where suspect might hide

Persons: Search Incident to Arrest Chimel v. California (still the law today)- grabable reach rule RULE: Search incident to lawful arrest is limited to arrestees person and area within immediate control. Facts: Officer has arrest warrant, knocks on door, talks to wife who invites him in to wait. Dude comes home, arrests him, asks permission to search. Dude says no, but

officers say they will search anyway because have lawfully arrested him. Search entire house with wife for 45 minutes. Said it was necessary to prevent destruction of evidence. Majority (Stewart) o Reasonable to search the person for weapons when an arrest is made, as well as the area within the arrested persons immediate control/area of grabable reach- the area where he might grab weapons or be able to destroy evidence (2 justifications for search incident to arrest) o No justification for searching any room other than the one in which an arrest occurs or through drawers and other concealed areas inside the room must have a search warrant Dissent (White, Black): unreasonable to make police leave scene to get a warrant and come back when they are already there legally and their friends will probably destroy the evidence, making this exigent

United States v. Robinson RULE: You can search anybody completely once theyre arrested, including what is on them. Facts: Officer pulled over and arrested him for operating a car without a valid permit. Officer then frisked him and discovered a crumpled cigarette package containing fourteen vials of heroin in his pocket. Majority (Rehnquist): o Not a Terry stop- already arrested so not a frisk- can conduct a full search Dissent (Marshall, Douglas, Brennan): Pat-down of the coat pocket was fine, but removing cigarette pack from pocket was not fine because officer had no reasonable belief that this was a weapon or contained evidence of driving with a suspended license searching lawyers envelope, businessmans wallet

Maryland v. Buie RULE: After suspect has been arrested in his home, officer may do a protective sweep when he has reasonable belief based on specific and articulable facts that house is hiding a dangerous person. Facts: Armed robbery where one robber was wearing a red jogging suit. Police got arrest warrant for Buie and his suspected accomplice. House was placed under police surveillance. Had secretary call and confirm Buie was there. 6 officer entered Buies house and one proceeded to the staircase leading to the basement, where he yelled police come with your hands high. Buie complied with the officers demand and was taken into custody. A detective arrived on the scene shortly after and did a thorough sweep of basement to make sure that no other suspects were hiding down there, discovering in plain view a red jogging suit, which he grabbed and took into evidence that was used at trial. Issue: what level of justification is required before police can conduct a warrantless protective sweep of premises while effecting the arrest of a suspect in his home with an arrest warrant Majority (White):

o This kind of search should only extend to types of places where person could be found and last no longer than necessary to determine that no dangerous person is hiding- necessary for safety of officers because in confined, unfamiliar place, on adversarys turf- search is not automatic like Chimel Dissent (Brennan, Marshall): Cops should have PC that they are in danger before sweeping the entire home and officers here did not have that PC not lawfully in the basement

Good Faith Exception United States v. Leon RULE: A good faith exception to the exclusionary rule exists where an officer's reliance on the warrant is objectively reasonable. Facts: Leon was the target of police surveillance based on an anonymous informant's tip. Police applied to a judge for a search warrant of Leon's home based on the evidence from their surveillance. A judge issued the warrant and the police recovered large quantities of illegal drugs. Majority (White): o Exclusionary rule serves no purpose under the circumstances because excluding evidence will not deter the magistrate from issuing warrant in the first placesupposed to be a penalty directed to police and should only be used when police violate somebodys rights on purpose in order to deter misconduct Dissent (Brennan): doesnt matter who made mistake because rights were still violated After Leon, no more cases defining PC- as long as there was a warrant, no matter if there was not actual PC, it will not be litigated, unless you can prove police outright lied, magistrate judge was incompetent Groh v. Ramirez RULE: A typo can be grounds to challenge a warrant. Facts: Application for warrant to search for illegal weapons was sufficiently detailed, but warrant itself only said there was a blue house on the corner, not that they were looking for weapons. Majority (Stevens): just a general warrant because no particularity violates 4th Amend. Houses United States v. Karo Facts: DEA agents installed beeper equipment in can with consent of owner which was later sold to Karo. Can moved around a lot and ultimately, the DEA agents used the beeper equipment to determine that can was inside one of the respondents homes and obtained a search warrant and arrested the respondents. Majority (White): o Installing beeper in the first place was not seizure because no privacy interest violated o Monitoring beeper violated 4th Amend. because was a search and needed a warrant o Police couldnt have gotten info without beeper in the house- need to draw line now

Concurring/Dissent (Stevens): Government seized can by placing bug because took to use for own purpose

Minnesota v. Carter RULE: A non-overnight guest, with a minimal relationship to the owner, involved in commercial behavior, does not have a legitimate expectation of privacy in the owners home. Facts: Ds were bagging cocaine in womans apartment in her presence; an officer received a tip from a CI that he saw Ds bagging cocaine through a ground floor window. Officer looked in the same window through a gap in the closed blind and observed the bagging operation for several minutes. When the two men drove off, the police stopped the car. Woman was not charged because officer was illegally in her curtilage. Majority (Rehnquist): Not illegal search because no legit expectation of privacy as visitors even though cop was in curtilage- also conducting business, making like commercial property Dissent (Ginsburg): Home owner should be able to share privacy bubble with friends robust society Kyllo v. United States RULE: Where the government uses a device that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant. Facts: Officer used thermal imager to determine whether an amount of heat was emanating from Ds home consistent with the use of high-intensity lamps necessary to grow pot. Scan of Ds home took only a few minutes and was done from cops car across the street. Based on the readings, officer obtained a warrant. Majority (Scalia): Flips sides because protecting homecan show details like lady of the house taking bath Dissent (Stevens): No physical intrusion like the trash case because out of the house (smell odors, snow melting)- amount of heat coming from the home is not private because it is escaping the house Automobiles: Containers in Cars California v. Acevedo RULE: Police may search a car and the containers within it where they have PC to believe that contraband or evidence is contained. Facts: Informant tells police drugs shipped from Hawaii. Officers wait on the other side, follow guy who picks up the package to his house. Goes into his house, comes out with a big bag. Gets in car and puts bag in the trunk. Pull him over and search trunk because had PC from watching him put it in the trunk. Majority (Blackmun): Car is like a boat- only meant to transport you so no expectation of privacy

Dissent (Stevens): Rule is inconsistent- if you cant search my backpack on the street, you shouldnt be able to search it when it is in my car should have gotten a warrant Wyoming v. Houghton RULE: Police officers with PC to search a car may inspect passengers belongings found in the car that are capable of concealing the object of the search. Facts: Officer pulled car over for speeding. Saw syringe in drivers shirt pocket. Driver candidly informed the officer that the syringe was for drugs, and officer then searched the passenger compartment of the car for contraband. On the back seat, he found a purse, which belonged to the D (passenger) and, upon opening it, found drug paraphernalia. D was subsequently arrested. Majority (Scalia): o People dont usually keep personal belongings in their cars o PC to search everyone in the car because everyone in the car is part of a group enterprise Dissent (Stevens): Searching of containers can be just as intrusive as searching of person- purses/briefcases Automobiles: Searches Incident to Arrest Arizona v. Gant RULE: An officer who arrests a vehicle occupant or recent occupant may search the passenger compartment if (1) the arrestee is within reaching distance of the vehicle at the time of the search or (2) the officer has reason to believe that the car contains evidence of the offense of arrest. Facts: Cops go to Gants house to arrest him for suspended license, but hes not there. He pulls in driveway, they shine flashlight into car and see its him. He gets out of car, they arrest him for driving with suspended license, and then search the car and find cocaine in a jacket pocket. Also charge him with drug crap. Majority (Stevens): Cant search his car when no evidence of driving with suspended license and hes not close enough to grab a weapon Chambers v. Maroney RULE: If the police have probable cause to justify a warrantless seizure of an automobile on a public roadway, they may conduct either an immediate or a delayed search of the vehicle. Facts: Robbery of a gas station. Attendant tells police one robber wearing a green sweater and one wearing a trench coat, and they are driving a station wagon. Police put this out on the radio, pull over station wagon with 2 people in it wearing those clothes. Arrest them, drive car to police station and search it, where they find revolvers and other gas station robbery stuff. Majority (White): o Not search incident to arrest because already in custody- PC to arrest, so PC to search car later

o Cars can move- have to either search immediately or take it and hold it till can get a warrant- either course is reasonable under 4th as long as have PC because no constitutional difference Automobiles: Pretextual Drug Interdiction Whren v. United States RULE: As long as officers have a PC to believe that a traffic violation occurred, they may stop any vehicle, regardless of any other possible motivations. Facts: Whren driving in a 'high drug area.' Some plainclothes officers, while patrolling the neighborhood in an unmarked vehicle, noticed Whren and Brown sitting in a truck at an intersection stop-sign for an unusually long time. Suddenly, without signaling, Whren turned his truck and sped away. Observing this traffic violation, the officers stopped the truck. When they approached the vehicle, the officers saw Whren holding plastic bags of cocaine. Whren and Brown were arrested on federal drug charges. Issue: Did officers conduct an unreasonable search and seizure in violation of the 4th Amendment? NO Majority: o Officers had PC to stop petitioners for a traffic violation since they sped away from a stop sign at an 'unreasonable speed' and without using their turn signal- since actual traffic violation occurred, the ensuing search and seizure of the offending vehicle was reasonable, regardless of what other personal motivations the officers might have had for stopping the vehicle th o 4 Amendment requires a balancing test between government interests and individual harm, but only applies to unusually harmful searches and seizures. Nothing unusually harmful about this traffic stop Ohio v. Robinette RULE: When looking at all circumstances it may be reasonably concluded that if a D consents to be searched, even if not first advised that he is "free to go," ensuing search will be recognized as voluntary. Facts: After stopping Robinette for speeding, cop warned him, returned his license, and asked him if he had any illegal contraband, weapons, or drugs in his car. Robinette answered "no" but after agreeing to have his car searched, the officer found some marijuana and a pill drug. Majority (Rehnquist): Arrest for drugs was lawful, even though the arresting officer did not stop him on an initial suspicion of drug possession nor intend to even issue him a speeding ticket Illinois v. Caballes- Pipeline RULE: Can walk dog around the car as long as it doesnt take more time than the traffic stop. Facts: Officer pulled over the D for speeding; while he was in the process of writing a warning ticket, another officer walked his drug dog around Ds car; the dog alerted at

the trunk; and, based on the dogs reaction, the officers searched the trunk, found marijuana, and arrested the D. Majority (Stevens): o Official conduct that does not invade a reasonable expectation of privacy is not a search o Const. did not require police to have reasonable suspicion to use a drug dog during a legal traffic stop because no legit privacy was at risk because dog only alerts to presence of drugs Dissent (Souter): this was not about catching a speedier and whole point of 4th Amend. is to protect people possessing legal stuff Dissent (Ginsburg): unrelated to purpose of stop so not ok- injecting animal into traffic stop changes character of stop to more adversarial, broader in scope

Knowles v. Iowa RULE: Traffic citation does not give cop right to search car without PC, consent, or concern for his safety. Facts: After stopping him for speeding, police officer issued Knowles a citation and conducted a full search of his car without PC and without his consent. Search turned up a "pot pipe" and some marijuana, the officer arrested Knowles on drug charges. Majority: No officer safety concern here- didnt even arrest him

The Right to Counsel before Trial- 6th Amendment Massiah v. United States- extended criminal prosections in 6th Amend. back to indictment RULE: Police cant deliberately elicit statements from individual after indictment unless in trial and attorney present. Facts: Indicted for drug trafficking and out on bail. Police get his friend to sit in his car and talk to him about crimes with a wire on him. Majority (Stewart): o Hes been indicted- this is when adversarial process begins falls under 6th Amend. o Court is starting to be concerned about professional police forces just getting confessions from uncounseled people because court has no idea if these are reliablepeople could have been coerced this leads to inquisitorial system of justice instead of adversarial o Inquisitorial system- dont need to corroborate a story, no juries, no lawyers can bring in evidence, only government investigates, you must to talk to the government Brewer v. Williams RULE: Once adversarial proceedings begin, you have right to counsel when government interrogates you Facts: Christian burial speech in car on way to other city after Williams has been indicted. Police guaranteed his lawyers they wouldnt interrogate Williams.

Majority (Stewart): o This was interrogation because playing on his conscience because knew he was nuts o Did not waive his right to counsel even though he was talking because he consistently asked for lawyer at every stage of his arrest and transport Dissent (White, Blackmun, Rehnquist): o He talked so he waived his right to counsel- had numerous warnings, knew what he was doing o What cop did is fine- he was just talking to Williams and not trying to elicit anything

Michigan v. Jackson RULE: Once right to counsel is triggered, police must leave you alone unless you initiate the conversation and voluntarily waive your rights. Facts: Disgruntled employee kills three other employees. Arrested, given Miranda rights, says he wants a lawyer. Before law firm received notice of appointment to be his lawyer, police questioned him in the jail and got a confession. He asked about status of his lawyer and they didnt tell him. Majority (Stevens): Edwards holds once suspect invokes right to counsel, police cant interrogate unless he initiates and voluntarily waives. Texas v. Cobb RULE: Whether the 6th Amend. right to counsel attaches to a charge for which adversary proceedings have not yet commenced depends on whether the charge requires proof of a fact which the other does not. Facts: Husband was robbed, and his wife and daughter went missing. Cobb was indicted for the burglary only. Officers received permission from his lawyer to question him, and Cobb denied involvement in the disappearances. While indicted but free on bail, Cobb to killing the wife to his father, and his father called the police to inform them. Cobb was arrested and Mirandized. Waived his Miranda rights and confessed to murdering the wife and baby. Then challenged statements as violating of his Sixth Amend. right to counsel. Majority (Rehnquist): o Fine because already had Miranda warnings and right to counsel is offense specific because adversarial process hasnt started for other crime AND police might not know offenses are related o Gives police time/freedom to investigate other crimes a suspect may have committed- makes no sense to say committing a crime means off limits for all other crimes o Use super bright line by using statutes (Blockburger test- have to prove same elements under statute) Dissent (Breyer): these crimes are too related- test should be same victim, time, place, motivation, etc. Moran v. Burbine

RULE: Police can lie to lawyers about their clients. Clients dont have to know whats going on with a lawyer that they themselves have not asked for. Facts: Lawyer calls police station and asks about client. They say theyre not going to question him. He has no idea that the lawyer is calling because sister got lawyer for him, waives his rights and confesses. Majority (OConnor): Lawyer is external- have to look at what the D knew and it was the same to him whether or not the lawyer had called the police stationup to D to invoke his right Dissent (Stewart/Stevens): Lawyer is agent of client, not separateno good reason to keep lawyers away from client

Fellers v. United States- unanimous Facts: Indicted for conspiracy to distribute meth. Knock on his door, he lets them in and he says incriminating stuff, they take him to jail but not arrested. Tell him Miranda rights at the jail. He says the same things he said before. Majority (OConnor): o Right to counsel attaches automatically once indicted has to waive to talk to him Case is just like Massiah but unclear so has to be fixedcourt of appeals used 5th Amend. but should have used 6th so Sup. Ct. needs to define distinctions between 5th and 6th Lower courts thought Miranda overruled Massiah because Massiah was implicit in Miranda, but this case reaffirms that Massiah is still good law because different rationale and holding than Miranda

Rothgery v. Gillespie County, TX RULE: Initial appearance before a judge is beginning of proceedings against a criminal defendant, even when prosecutor isnt aware or involved in this appearance. Facts: Investigatory hearing figures out if there is PC in TX. IF there is PC, set bail. Rothgery wanted a lawyer at the hearing, denied counsel because not yet indicted. He says lawyer could have lowered the bail and he never would have been arrested. Majority (Souter): right to counsel applies whenever a defendant learns of the charges against him and has his liberty subject to restriction Dissent (Thomas): we cant afford this Kansas v. Ventris RULE: Government can offer counter testimony obtained during an interrogation that violated right to counsel even though prosecution would be barred from using it as part of its original case. Facts: Ventris is an inmate, going to testify on his own behalf. On the stand, he says things that prosecution thinks are lies. To prove that, they bring in his cellmate to impeach the statements. They could not have used the cellmate as prosecutorial evidence. Majority (Scalia):

o Statements elicited in violation of 6th Amend. are admissible to impeach inconsistent testimony at trial o This is like Massiah because cellmate is like a government agent- still fine even though violated right to counsel because only using to refute his testimony Dissent (Stevens): Same problem as Miranda- no transparency because no determination of qualification of the informant- both parties have incentive to lie

Custodial Interrogation The Miranda Decision Escobedo v. Illinois Facts: At police station for several hours. He asks for lawyer several times but police refuse. Lawyer asks to see him several times, police refuse. He confesses. Majority (Goldberg): o Massiah does not control because Escobedo wasnt indicted o 6th says all criminal prosecutions- state argues this is only when trial starts, but if this were true, trial would just because a formality where Ds confession was admitted into evidence This holding is super narrow and fact specific becomes necessary for Miranda No need for Escobedo after Miranda because Miranda eclipses BUT if indicted, Massiah still applies Miranda v. Arizona RULE: When police are going to question a suspect that is in custody, the individual must be warned prior to any questioning that he has the right to remain silent, that anything he says can and will be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him. Majority (Warren): o Problem here is that court doesnt know what police did to Miranda to get this confessionmake note of all the cases coming to them like this, Wickersham commission, police manuals o This must be read when youre in custody and they are interrogating you (but if in custody and theyre not talking to you, dont have to read rights) Dickerson v. United States Facts: Dickerson is being questioned about a robbery and makes incriminating statements. Dickerson is arrested. Police say they warned, Dickerson says they didnt. Police it doesnt matter because it was voluntary anyway. Congress had adopted a statute that says a confession is admissible if it is voluntary. Courts all agree that he wasnt given Miranda warnings. Issue: Is Miranda warning required under the Const? Majority (Rehnquist): o Miranda said custodial interrogation isolates and pressures individualcoercion is inherent so must read warning to make sure confessions are voluntary although

not every confession without a Miranda warning is coercednot saying no Miranda means it was coerced o Miranda decision says Const. doesnt require warnings; instead holds that these warnings are being put in place to protect constitutional rights and dont necessarily have to read them but then have to do something equally effective o This holding means everything is maintained: Miranda must be read, applies to the states, etc. Dissent (Scalia): o Majority is actually being unconstitutional in this holding because violating separation of powers o Would overrule Miranda because court is just making a power grab- trying to stay consistent and also show that Congress cant overturn Miranda o Being like a dictator and making arbitrary decisions based just on how they feel (compares to Caesar)this rule is legislating from the bench, a usurpation of power, absolutely senseless 2 kinds of confessions that arent OK: Coerced and violating Miranda (can still coerce after reading Miranda)

Custody, Interrogation, and Incrimination Oregon v. Mathiason- what custody means (per curiam) Facts: Police wanted to talk to Mathiason, asked him to come to police station. He came voluntarily and talked with them in private with a closed door and with one police officer. Police officer lied to him and said police had his fingerprints. He gave incriminating statements. He was not arrested and left the station. He was arrested later and police tried to use the statements in evidence. Majority: o Not in custody even though in police station because there voluntarily and could/did leave o Turns on fact that OK for police to lie to you as long as not coercive- Miranda was concerned about this when in a scary room but not just lying (although cannot ever lie about rights) Dissent (Marshall): o This is the type of environment Miranda was supposed to protect against o In custody because in police station- even if not in custody, should still be Mirandized because police station has coercive atmosphere Berkemer v. McCarty Facts: Drunk driving. Field sobriety test which didnt detect any alcohol. Officer asked if he had been using anything, he said he drank a few beers and smoked a few joints. Arrested and taken to station. Given another test that didnt detect anything. Officer resumed questioning. Majority (Marshall): o Dont need to be Mirandized when pulled over because highway is in public, not isolated so no coercive environment can use statements made in the car

o Traffic stop is familiar seizure- dont feel free to leave but not in custody for purpose of Miranda You can be seized but not in custody. Custody = seizure + something more.

Rhode Island v. Innis Facts: Police are questioning victim taxi driver at the police station. Taxi driver sees a picture on the wall and identifies Innis as attacker. Police go out and drive around the streets till they see him. Pick him up, he is unarmed, arrested, read Miranda rights, and asked for a lawyer. Police captain tells 3 officers to take him to station. On their way, with one of them sitting next to him in the backseat, they start talking to each other about how sad it would be if a handicapped kid got that gun and hurt herself. Innis interrupted and told them to take the car to where the gun was. Tries to suppress this a violating his Miranda rights as an interrogation before he could talk to his lawyer. Issue: Innis is definitely in custody, but is this interrogation? This is like Brewer v. Williams but here 5th instead of 6th because hasnt been charged Majority (Stewart): o This was not interrogation- officers were just talking to each other o Definition of interrogation: practice that police should know is reasonably likely to evoke an incriminating response from the suspect court is UNANIMOUS on this rule! o Footnote- police intent is not irrelevant but we know it turns more on suspects POV from Mirandas point of dispelling coercive environment and making the suspect feel more at ease Dissent: disagrees with application of rule facts here- this convo was designed to elicit a response

Hiibel v. Nevada- ID info is not incriminating Facts: Officers get a call about a domestic dispute. Officer goes out to investigate and walks up to Hibel, who is outside of the car while the woman is inside. Officer asks for ID multiple times, Hibel says no and starts taunting him. Officer arrests him because there was a state statute that said you cant refuse to give your name to an officer. Side issue: allowed to ask questions in Terry stop under 4th Amendment? YES Real issue: if providing name will incriminate you under 5th Amendment? NO Majority (Kennedy): o Refines Innis interrogation has to be calculated to elicit an INCRIMINATING response/info o Not incriminating to ask for ID- there is no right to anonymity BUT need reasonable suspicion Dissent (Stevens): A name can be incriminating so cant do this Invocation and Waiver Michigan v. Tucker Facts: Questioning happened before Miranda decision, but trial was after. Prior to interrogation, police asked him if he knew what crime he was being arrested for, whether he wanted a lawyer, and whether he understood his constitutional rights.

Tucker said yes he understood and didnt want an lawyer. Without attorney, Tucker agreed to talk about his alibi, which ended up being incriminating. Police did not tell him he would be given a lawyer if he couldnt afford one. In trial, prosecutor used the alibi witness against Tucker. Issue: Whether testimony of a witness in trial must be excluded because police learned identity of witness while questioning Tucker without telling him he would be appointed a lawyer if he couldnt afford one? NO Majority (Rehnquist): o Statements about alibi were suppressed, but not the witnesss statements o Failed to meet full safeguards of Miranda, but excluding the witness here would not deter police misconduct because at the time, they were following Escobedo so no bad faith o No reason to believe witnesss testimony is untrustworthy when Tucker was not told he would be appointed a lawyer if he couldnt afford one

Michigan v. Mosley Facts: Police arrested Mosley in connection with robberies. Mirandize him, he says he doesnt want to talk. Take him to a jail cell. Two hours later, another cop comes to get him and takes him to a different room in the building. Re-Mirandizes him and starts asking questions about an unrelated murder. Mosley does not ask for lawyer or ask to remain silent. Makes incriminating statements. Mosley says confession should be suppressed because he said he didnt want to answer questions about robbery. Majority (): o Miranda doesnt mean there is a blanket prohibition against talking to the suspect o Admissibility of incriminating statements obtained after a person in custody asks to remain silent depends on whether police honored his right and here, it is admissible because of two warnings, time gap, unrelated crimes, different location and officer Concurrence (White): o Moselys second statement doesnt violate Miranda because voluntariness as opposed to time limit should be test and majority is only relying on time writes majority in Edwards Edwards v. Arizona RULE: When an accused has invoked his right to have counsel present during custodial interrogation, the accused is not subject to further interrogation until counsel has been made available to him, unless he initiates further communication with police. Facts: Edwards is arrested and Mirandized. Requests lawyer. Questioning ceases. Next morning, detectives want to talk to him and after he told guard he didnt want to talk to anyone, he complies anyway and implicated himself to the police. Majority (White):

o Different than Mosley because Edwards asks for lawyer- switches here because asking for counsel means when police keep asking questions they are not respecting the right to counsel o Asking to remain silent indicates you can deal with them and not scared of them, but asking for a lawyer means they have to leave you alone Case doesnt say they can never talk to you again- they can bring you a lawyer, who will tell you not to say anything and then leave, and then maybe they can re-Mirandize you and try to talk to you Under this case, possible to waive right to counsel after invoked right to counsel, but must expressly waive and say never mind, I can handle this without a lawyer, I want to talk to you

Exclusion of Evidence Attenuation Wong Sun v. United States RULE: Attenuation allows introduction of testimonial evidence linked to prior unconstitutional conduct by police if the testimony was a product of Ds free will and not illegality. Facts: Officer has been watching Hom Way. Arrest him, they tell him about Toy. 7 officers kick in Toys laundry/house, chase him back into the room where his wife and child are sleeping, immediately handcuff and arrest him Toy gives them Yee go to Yees house Yee gives them Wong Sun Wong Sun. Yee flips and becomes witness for government. Majority: o Holding for Toy Confession suppressed because not an act of free will with these factors unreasonable to infer he gave information with free will Brick of heroin suppressed because information came from the scary situation in his house which was not free will o Holding for Wong Sun use brick because didnt violate Wongs rights- no expectation of privacy in Yees house can use his statement because he came back to police station voluntarily after he was released- connection between arrest and statement had become so attenuated as to dissipate the taint Whether evidence is in or out is PERSON SPECIFIC

New York v. Harris Facts: Officers go to house, with PC but no arrest warrant. Knock on door, showing guns and badges. Harris let them enter house. Once inside, Mirandize him. He confesses. They arrest him, take him to the station, and he tells them same things at police station after Mirandized. Signs a written statement. Then Miranda warnings given a 3rd time, he repeats incriminating statements on video tape even though he said he wanted interview to end. Majority (White):

o 1st (Payton) and 3rd (didnt want to talk) confessions suppressed o 2nd confession is attenuated because new location, time difference (Brown factors) Dissent (Marshall): Thinks confession not attenuated because flagrancy of initial violation- majority is ignoring in terrorem effect of striking fear on purpose- pressure is not over just because they removed him from the home after they scared him shitless by dragging him out of his house

Independent Sources and Inevitable Discovery Doctrine Nix v. Williams RULE: Evidence obtained in violation of a constitutional right may still be admitted if, by a preponderance of the evidence, the prosecutor can show that the evidence would inevitably have been discovered. Independent Source Doctrine: can use information from somewhere else that wasnt violated- can beat one suspect but other suspect who was not violated gives you same info Inevitable Discovery Doctrine: something that would have been found anyway even if they didnt violate someones rights BUT there has to be a plan/something already going on that would have led them there- speculation is not enough Majority: o Only introducing body evidence that would have been found anyway because had search party that had gridded the area and 200 volunteers that were advancing toward location, it was cold out so body was in the same condition it would have been in when they found it o Use preponderance of the evidence to prove inevitable discovery Dissent (Brennan): Wants higher burden of proof burden of proof for inevitable doctrine

Murray v. United States outer limit of independent source doctrine RULE: Police can lie to a judge about their actions. Facts: Officer is watching Murray and his buddies. See them all go into the warehouse with trucks and campers. Drive out 20 minutes later, and police see tractor and some dudes with a long dark container. Follow cars, which are turned over to other people, who are arrested. Police find drugs in the cars. Go back and force entry in to warehouse. Find a shit load of bales of pot but dont disturb them and leave. Go to judge and ask for search warrant based on earlier information but nothing about the break in. Majority (Scalia): o Independent source because didnt use any information from the illegal break inthe judge unaffected because he made same determination he wouldve made had they not broken in o Police wont use this as a time saver because know they will have a more onerous burden at trial Good Faith ExceptionHerring v. United States

RULE: The good faith exception to the exclusionary rule extends to negligent record keeping in government offices. Facts: Officer wants to arrest Herring. Calls court office and asks if there is a warrant. She says no. Tells her to call other countys office to look for a warrant. She calls, they say yes they have a warrant. Calls officer back and tells him there is a warrant, also asks for a copy. He arrests Herring. 2nd lady calls back 1st lady and says that warrant is expired and wasnt deleted from computer. Officer found drugs on Herring. Majority (Robert): This is all fine because just a clerical error/mistake made in clerks office, not by police Dissent (Ginsburg): Should punish for clerical error because would deter in future (tort law which punishes people for mistakes in order to reduce amount of mistakes)

Exclusion under Miranda Missouri v. Seibert Facts: Police questioning woman after trailer fire and she admits to stuff. They stop, Mirandize her and start going over the confession again. They do not tell her that her first statements could not be used against her. Police admit in open court that they try to trick people in to waiving Miranda rights. Majority (4 people- Souter): confession suppressed o Test is whether warnings accomplish point of Miranda, effectiveness of 2nd warnings o A bunch of factors matter- timing, same officers, treating second interrogation as a continuation, overlapping content of the two interrogations, completeness and detail of the first statements Concurrence (OConnor)- test should focus on suspects perception Concurrence (Kennedy)- test should focus on police intent United States v. Patane RULE: A failure to give a suspect Miranda warning does not suppress the physical fruits of the suspects unwarned but voluntary statements. Facts: Have information that this parolee/bad guy has a gun. Go to house and ask him without complete Miranda warnings because he interrupts them and tells them he knows his rights. Tells them where glock is and they find it in his bedroom drawer. Majority: Different than Tucker because here was a statement that led to physical evidence, not a statement that led to another statement. Goes through Dickerson- this holding perpetuates Miranda rules are prophylactic even though constitutionally required Concurrence (OConnor, Kennedy):- Miranda was meant to protect statements under 5th Amend. right to not self-incriminate- physical evidence is not self incrimination Dissent (Souter): inviting police to disregard Miranda if can use physical evidence without warning