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‡ Remainder of Class structured as follows:
± First test, next week, will cover exclusionary rule,
exceptions, standing, probable cause, and arrest
related issues
± 2nd test will focus on the exclusions (situation in
which 4th Amendment not apply) and search
warrant exceptions (car searches, emergencies,
consent, search incident to arrest, etc.)
± 3rd test will cover Miranda and right to counsel
issues

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‡ Next week will hand out reading assignments
for 2nd test (following test)
‡ Need to get sign ups for cases for briefing
purposes for remainder of semester [43
students; approximately 60 cases]; need 5-6
per class; volunteers?
‡ Extra credit?
‡ Power points received?
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‡ ³You can¶t always get what you want, but if
you try sometimes, you just might find, you
get what you need!´ Mick Jagger, The Rolling
Stones
‡ 40 +/- questions: true/false; Multiple choice;
short answer; and short essay
‡ Open book, open note, and open power point;
no internet; BRING your blue books; and be
on time!
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Review 4th Amendment:
* Although no distinction in actual Amendment,
different rules have surfaced for searches and
arrests
* Basically, must get a search warrant unless you
can¶t (not have time, not practical etc.) Court
often states that exceptions to SW requirement
³jealously and carefully´ drawn (largely a myth
now replaced by increasing popular
reasonableness clause)
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‡ Are arrest warrants preferred or usually
required? Are the exceptions to arrest warrants
³jealously and carefully drawn´ like Search
Warrants?
‡ Answer in US v. Watson, CB @ 59 et. seq.
± Facts
± Issue
± Holding
± Reasoning

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‡ What was prosecutor relying upon here to
justify warrantless arrest?
‡ What was the general rule in most states?

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‡ First case Court squarely followed, as matter of
constitutional law, the common law rule
permitting warrantless felony arrest in public
EVEN when there is time to get a warrant
‡ Misdemeanor arrests were initially less clear
under Constitution: historically, only allowed
without arrest warrant if ³breach of peace´ type of
crime AND crime was committed in officer¶s
presence i.e. witnessed the crime (not told by
someone else etc.)
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‡ A warrantless arrest may be made for a felony in a
public place not committed in officer¶s presence or a
misdemeanor committed in officer¶s presence even
though there is time to get a warrant if probable cause
exists that offense committed by person to be
arrested.
‡ Exception: if arrest made in arrestee¶s dwelling, a
warrant IS required absent ³exigent circumstances´
i.e. emergency (more later)

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‡ Common law (historic) rule requiring breach of peace
gone in most states by statute.
‡ N.Dak. expands arrest power to allow arrest for
following misdemeanors not committed in officer¶s
presence: (see Chapter 29-06, NDCC)
± Arrest of nonresident traffic violator
± DUI/APC/ OR under influence of volatile chemical vapors
± Certain domestic violence crimes under limited
circumstances, protection orders, no-contact orders, assaults,
(within 12 hours, visible signs of injury etc.)
± Otherwise, need warrant for misdemeanor arrest not
witnessed by officer making arrest
± Or citizen arrest procedure can be used e.g. shoplifting cases

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‡ Payton v. New York, @ 92 CB et. seq.
± Facts
± Issue
± Holding
± Reasoning

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‡ Payton v. New York (1980) - disallowed a
warrantless, nonconsensual entry into suspect¶s home
to make an arrest absent exigent circumstances
‡ What issues did Court NOT consider in opinion? CB
@ 93
‡ Why are arrests allowed without warrant in a public
place but not in the home? CB @ 96
‡ What are ³exigent circumstances´? CB @ 93; CB @
97; why not present here or in companion case?
‡ Arrest warrant IS valid for suspect¶s home without
separate search warrant; why? CB @ 98

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‡ What did dissent state in Payton?
‡ What restrictions did they believe existed before
arrest without warrant allowed in home?
‡ What did Court decide in Wilson v. Arkansas
(1995)?; CB @ 112
± Facts
± Issue
± Holding
± Reasoning

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‡ Is Knock and Announce required by the 4th
Amendment?
‡ Are there any exceptions?
‡ Is suppression then the remedy? [see earlier
lecture for discussion of Hudson v. Michigan
(2006); CB @ 352]

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‡ Doorway arrests? Does it matter if arrestee comes
across the threshold? Or can officer arrest from
outside by pulling across threshold? HB @ 187;
Note language in Payton CB @ 96: ³the Fourth
Amendment has drawn a firm line at the entrance
to the house.´
‡ What about common hallways? HB @ 187
‡ Homeless persons living under a bridge? HB @
187
‡ Hotel or Motel rooms? HB @ 188
‡ Motor home? HB @ 188
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‡ Discussed in HB @ 188-189; CB @ 102
‡ Steagold v. US (1981) addressed facts where
police go into 3rd person¶s home to arrest
person for whom they have AW; discover in
plain view drugs which they seek to use
against 3rd person (home owner)
‡ Thoughts? What is different about this than
using AW in arrestee¶s home?

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‡ AW will NOT protect privacy interests of 3rd
party homeowner
‡ ³armed solely with an arrest warrant for a single
person, the police could search all the homes of
that individual¶s friends and acquaintances.´ HB
@ 189
‡ BUT can ARRESTEE object to his/her arrest
under Steagold facts? Explain standing in these
circumstances
‡ Note: there is an exception in both Payton and
Steagold for ³exigent circumstances´
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‡ Both Payton and Steagold state ³exigent
circumstances´ would justify warrantless entry to
make arrest (emergency searches discussed more
later); couple of examples mentioned here
‡ Warden v. Hayden (1967) Hot pursuit case discussed
later, generally if police have PC that suspect fled into
dwelling may enter to arrest; armed robbery, 5 minute
head start
‡ US v. Santana (1976) - applied hot pursuit to
vestibule retreat into home when saw police
‡ Certain crimes may not be serious enough to allow
warrantless entry , see Welsh v. Wisconsin (1984) @
CB 102
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# 

"

‡ Virginia v. Moore, CB @ 63 et. seq.
± Facts
± Issue
± Holding
± Reasoning

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‡ What was Virginia¶s law here?
‡ Why then, did Court, not suppress evidence?
‡ What if lower Court¶s decision was based on the
state constitution and not the federal constitution?
‡ What about state statute?
‡ Do need to have an arrest however; see Knowles
v. Iowa (1998) discussed later in which Court
disallowed a search incident to a traffic citation

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‡ Whren v. United States, CB @ 77
‡ Facts
‡ Issue
‡ Holding
‡ Reasoning

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‡ Know what ³pretextual´ means in this context
‡ What did the law of this jurisdiction provide re
plainclothes officers in unmarked cars
enforcing traffic laws? CB @ 80
‡ Note that there are still two exceptions to this
rule and Court will not allow pretext stops or
searches, what are they?
‡ What does Court state about use of race to
make these stop or arrest decisions? CB @ 79
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" [

‡ Searches incident to arrest, statements by defendant
suppressed and release from jail; BUT
‡ Assuming Statute of Limitations not run, can be
recharged; it is NOT grounds for dismissing
complaint or precluding trial for defendant or voiding
subsequent conviction, Gerstein v. Pugh (1975)
‡ Never suppress the person i.e. person never ³fruit of
the poisonous tree´, see lecture 2; though physical
evidence from person could be suppressed

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‡ Same as SW discussion earlier; hearsay can be
used; new test is totality of circumstances under
Illinois v. Gates, old tests re Aguillar and Spinelli,
et.al. still relevant

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* YES!
* ³Imputed Knowledge´ doctrine applies:
knowledge of one law enforcement officer
considered knowledge of all
* also called ³collective information´; in other
words, do not have to question officer to obtain
information; presumed that officer information is
shared by all
‡ Application: radio messages, police bulletins,
Whitely v. Warden (1971)[warrant case]; US v.
Hensley (1985)[bulletin case]. PC must exist
however
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$
‡ Atwater v. City of Lago Vista. CB @ 69 et.
seq.
± Facts
± Issue
± Holding
± Reasoning

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 "% >&''(
‡ Issue: 4th A. prohibit arrest for misdemeanor seat
belt violation punishable only by fine?
‡ Statute (law) does allow arrest without warrant,
but also allows citations in lieu of arrest
‡ Defendant driving w/3 and 5 year old in front seat
w/o seatbelts
‡ Civil case so facts are as alleged by Plaintiff
± ³we¶ve met before´; ³you¶re going to jail´; ³heard that
story two hundred times´; ³you¶re not going
anywhere´
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‡ No insurance or license w/her b/c purse
stolen day b/4
‡ Arrest, handcuffed, booked, mug shot, in
cell for one hour b/4 magistrate released on
cash bail (multiple charges but pleaded no
contest to no seat belt and paid $50)
‡ 42 USC § 1983 civil rights lawsuit
‡ Argued common law required breach of
peace for misdemeanor warrantless arrest
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‡ History not clear: nightwalker statutes allowed
watchmen to arrest anyone at night; American
history also allowed some misdemeanor arrests
‡ Fall back argument: officer cannot make custodial
arrest IF no jail could be imposed if conviction;
Court said no b/c of interpretation problems of
³jailable´ or ³fine only´ offenses and
administrative problems
‡ Does agree officer used ³extremely poor
judgment´; recommends legislative solutions; but
also no problem with arrest itself (not
³extraordinary´)
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‡ Majority not decide if 4th A. required ³in the
presence´ requirement for all misdemeanor arrests
‡ Dissent: touchstone should be reasonableness; arrest
consequences are significant; could be held for 48
hours b/4 magistrate reviews [explain]
‡ Dissent would have intermediate position: citation
only unless officer can show reasonable suspicion
that full arrest necessary
‡ This and earlier Search incident cases re traffic
offenses have caused legislative and State
constitutional remedies

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)

#!
‡ ³Arrest! Need it be said that it is a breaking
point in your life, a bolt of lightning which
has scored a direct hit on you? That it is an
unassimilable spiritual earthquake«.Each
of us is a center of the Universe, and that
Universe is shattered when they hiss at you:
³You are under arrest.´
‡ The Gulag Archipelago, A. Sohzhenitzyn

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‡ North Dakota would not allow for seat belt
violations, but other non-jailable offenses,
including non-criminal traffic and Infractions (fine
only, 1st offense, crime 2d)
‡ E.g.¶s include speeding, modified motor vehicle,
operating unsafe vehicle, among others
‡ Predicate: Halting officer has good reason to
believe person is charged with these offenses
(except speeding), or good reason to believe
inadvisable to release upon promise to appear;
also separate analysis for non-residents
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‡ Review 78 NDLRev 467 (2002), Atwater in North
Dakota: Soccer Moms Beware, Sometimes, written
by Professor Lockney, and Vogel atty, Mark Friese.
‡ Google Atwater and will find many references to case
(often called soccer mom case); H was ER Dr.;
$110,000 legal fees; sold house; borrowed $ from
relatives to finance lawsuit

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