Background 10 Foundations of the Fourth Amendment 10

Background 10

Foundations of the Fourth Amendment 10

Searches and Arrests 13

h.May only look where the items described in the warrant might be concealed and the search must cease as soon as the items named in the warrant are found. 14

b.Leaves room for anonymous citizen informants, which are very important to effective law enforcement. 16

3.However, drugs in the backseat, in addition to the money in front of him and other factors, were enough for the Court. 17

1.Warrantless Arrests 17

i.Payton v. New York 18

1.Facts: felony arrest in public 18

ii.US v. Santana: warrantless arrest was constitutional when women was standing directly in the doorway (public place). 18

2.Warrantless Searches: exceptions to the warrant requirement 18

1.On-person- per se automatic search (Robinson) 20

2.Off-person 20

d.Car: can search passenger area of car because items there are assumed to be in grabbing area (Belton, Thornton) 20

b.To search beyond the “immediately adjoining” area, the police need reasonable suspicion. 21

iv.Arizona v. Hicks 21

1.Facts: Police entered premises from which shots were fired and saw suspicious stereo equipment. The police moved some of the equipment around to read the serial numbers. 21

2.Holding: This was in violation of the Fourth Amendment. Outside scope of permissible search. The officer could not move television around and could only look at it without a search warrant and probable cause. 21

3.Rationale: Merely looking at something in plain view is not a search, but the officer here did more. 21

1.Facts: Knowles was pulled over for speeding and issued a citation (not arrested). The police searched the car and found marijuana. 23

2.Holding: Unconstitutional. No arrest like in Belton or Thornton, so no need to protect the officer or preserve evidence. 23

iv.US v. Chadwick: 25

1.Facts: Arrested on informant tip with footlocker believed to contain narcotics, under exclusive control of FBI agents when they opened it. 25

2.Holding: Unreasonable for Government to conduct search of footlocker without the safeguards that a judicial warrant provides, even where agents lawfully seized the footlocker at the time of the arrest of its owners and there was probable cause to believe that it contained contraband. 25

3.Rationale: By placing personal effects inside a double-locked footlocker, defendants manifested an expectation that the contents would remain free from public examination, no less than one who locks the doors of his home against intrusion, and there being no exigency, unreasonable. Warrantless search of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the search is remote in time or place from the arrest or if no exigency exists. 25

3.Stop and Frisk 25

i.Was there a stop? (did individual feel free to not cooperate) 25

ii.Was there basis for the stop? (founded suspicion) 25

iii.Was the scope of the stop permissible? (duration and intrusiveness) 26

iv.Was there a frisk? 26

v.Was there basis for the frisk? (armed and dangerous) 26

vi.Was the scope of the frisk permissible? (pat down for weapons) 26

1.The threatening presence of several officers 27

2.The display of a weapon 27

3.Physical touching by the officer 27

4.Language or tone indicating that compliance is compulsory 27

5.Prolonged retention of a person’s personal effects 27

6.A request by the officer to accompany him to the police station or a police room 27

2.Must be objectively describable evidence, not just subjective hunches 27

3.The assessment must raise particular or individualized suspicion that the person being stopped is engaged in wrongdoing. 27

1.Facts: Someone broke into a house and attacked an old woman. She told the police that the assailant was a young black man who, as they struggled, cut himself on the hand. A police canine unit tracked the assailant’s scent to the SUCO campus. The police attempted to locate and question every black male student at SUCO. Once this failed to produce a suspect, they conducted a “sweep” of Oneonta, stopping and questioning every non-white person on the streets and inspecting their hands for cuts. The police stopped over 200 black residents. 30

2.Holding: Not violation of Equal Protection Clause because they were not stopped solely on their race, but based on the victim’s description. 30

1.In June 2003, the Department of Justice offered its view on the proper consideration of race in law enforcement. 30

2.The guidelines state that in “traditional law enforcement activities,” race cannot be considered in a traffic stop or other investigatory activity unless there is a specific victim description. 30

3.Even “national security and border integrity” activities are limited by the Constitution. This means that people can be signaled out by race for heightened scrutiny only if there is a specific threat or intelligence. 30

4.Consent 31

x.Consent searches are frequently relied upon by the police because they involve no time-consuming paper work and offer an opportunity to search even when probable cause is lacking. 31

2.Knowledge of right to refuse is a factor to be taken into account, but the prosecution does not have to prove the defendant knew he had a right to refuse as a prerequisite to establishing voluntary consent. 31

5.Administrative Searches 33

iii.Whenever departure from the usual warrant and/or probable cause requirements is claimed on the basis of some “special need”, it is necessary that this need be sufficiently different from the state’s ordinary law enforcement interest. 33

i.Safety inspections (Camara) 33

ii.Border searches 33

iii.Vehicle checkpoints for illegal immigrants (Martinez-Fuerte) 33

iv.Vehicle checkpoints for drunk drivers (Sitz) 33

v.Search of students in school (T.L.O.) 33

vi.Supervision of parolees and probationers 33

vii.Drug testing (Von Raab, Skinner, Vernonia, Earls) 33

viii.Other “special needs” 33

ii.Special Needs Doctrine: 34

iv.Rationale: The court held that this program satisfies the special needs exception to the Fourth Amendment’s usual requirement of individualized suspicion because (1) preventing a terrorist attack in the subway is a special need; (2) that need is weighty; (3) the program is a reasonably effective deterrent; and (4) even though the searches intrude on a full privacy interest, they do so to a minimal degree. 34

i.Facts: Georgia requires candidates for designated state offices to certify that they have taken a drug test and that result was negative. 34

ii.Test: A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. But there are exceptions based on “special needs, beyond the normal need for law enforcement”. 35

iii.Holding: Unreasonable. 35

1.The Court held that the drug testing requirement in the Georgia statute were nonintrusive. 35

2.However, the Court held that there was no important governmental interest. 35

am.Nat’l Treasury Employees Union v. Von Raab (1989) 35

i.Holding: the Court upheld a Customs Service policy of requiring drug testing for positions directly involving drug interdiction or requiring the employee to carry a firearm. There is a “compelling” interest in making sure these employees are not illicit drug users. 35

an.Vernonia School District 47J v. Acton (1995)- the Court upheld random drug-testing program for high school athletes. High school students have lesser expectation of privacy and the state has a significant interest in deterring drug use by schoolchildren. 35

ao.Bd. Of Education v. Earls (2002)- extends Vernonia to the drug testing of students wishing to participate in nonathletic extracurricular activities. 35

i.The Court held that a highway checkpoint program whose primary purpose is the discovery and interdiction of illegal narcotics was unreasonable. 35

ii.“We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.” 35

iii.In Martinez-Fuerte and Sitz the Court held that suspicionless stops at highway checkpoints for the purposes of intercepting illegal immigrants and combating drunk driving and were reasonable, because these programs were designed primarily to deal with the problems of policing the border and the necessity of ensuring roadway safety 35

Surveillance (wiretapping, eavesdropping, secret agents) 37

1Informants 37

a.Overview: No reasonable expectation of privacy in these scenarios, which led the Court to determine that secret agents do not threaten privacy enough to merit Fourth Amendment limitation. No warrant or court order is needed. 37

b.Hoffa v. US: 37

i.Holding: however strongly a defendant may trust an apparent colleague, his expectations are not protected by the Fourth Amendment when it turns out that the colleague is a government agent communicating with authorities. 37

ba.Federal Wiretap Act: strict requirements to bug/tap, but can do if have PC and satisfy other requirements 39

bb.Electronic Communications and Privacy Act to extend to the internet/stored communications 39

bc.Patriot Act 39

bd.Regulates content and non-content information 39

Counter-terrorism 39

a.FISA is the statute which establishes a legal regime for “foreign intelligence” electronic surveillance separate from ordinary domestic law enforcement electronic surveillance which is covered under Title III. 39

b.FISA is aimed at regulating the collection of “foreign intelligence” information in furtherance of U.S. counterintelligence, whether or not any laws were or will be broken. 39

c.Under FISA, surveillance is generally permitted based on a finding of probable cause that the surveillance target is a “foreign power” or an “agent of a foreign power”, not like in traditional law enforcement surveillance which requires probable cause that a crime is or will be committed. 39

d.A “foreign power” under FISA is not limited to a terrorist group or a hostile foreign government, but is defined broadly to include any “foreign-based political organization not substantially comprised of U.S. persons”. 39

e.The definition of foreign agent, if it pertains to a U.S. person, is more closely tied to criminal activity. It requires that the U.S. person knowingly engages in clandestine intelligence gathering activity or knowingly engages in sabotage or international terrorism. 40

f.FISA proceedings are secret and only the government presents its side. 40

g.Surveillance can be up to one year for foreign governments and 90 days for their agents. 40

h.No notice needs to be provided until prosecution is initiated. 40

i.So even if foreign, if just looking for drugs, not covered 40

j.But foreign political organizations don’t have to be doing anything criminally illegal to be monitored 40

k.Newest amendments: can use FISA even where primary purposes is criminal prosecution (but then might no longer be an administrative search) 40

l.Mayfield: Was there probable cause to believe Mayfield committed a crime? 40

Fourth Amendment Remedies 42

1The Exclusionary Rule 42

6.Exceptions to the Exclusionary Rule: Fruit of the poisonous tree doctrine: is derivative evidence tainted by an earlier Constitutional violation? 43

a.Inevitable discovery 43

b.Independent source (independent of the illegal search) 43

c.Attenuation (Wong Sun rule) 43

i.Wong Sun 43

1.Facts: Made confession after illegal chase and arrest leading to second person, who confessed; all had to be suppressed 43

2.Holding: Not “all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police”. Have to see whether the evidence was a result of “exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint”. 43

3.Test: Did evidence come by using the illegality or by means sufficiently distinguishable to purge the taint? 43

a.But for the illegal arrest, would not have gotten the evidence 43

ii.Independent source test: would evidence eventually have been discovered lawfully? 43

iii.Problems 43

1.Standing: Seize A illegally, search A’s house, can use against B (no deterrence value; no-lose situation) 43

2.Looks like protection of individual constitutional rights, but we’ve seen before this can’t be the rationale 43

d.Use for impeachment purposes 43

i.Walder: 43

1.Facts: A prior case against petitioner was dismissed because evidence had been obtained though an unlawful search and seizure. At a subsequent trial for a separate drug offense, in response to petitioner's testimony that he had never possessed narcotics in his life, the government raised the prior case to impeach petitioner's credibility. 43

2.Holding: government can use illegally obtained evidence to impeach a witness who by his own accord brings it up in direct testimony. While the government could not affirmatively use evidence unlawfully obtained, petitioner could not turn the illegal method by which the evidence in the government's possession was obtained to his own advantage and provide himself with a shield against contradictions of his untruths. 43

ii.US v. Havens: a D's statements made in response to proper cross-examination reasonably suggested by the D's direct examination are subject to otherwise proper impeachment by the gov't, albeit by evidence that has been illegally obtained 44

e.Standing 44

i.Must the person asserting the 4th amendment claim have been the victim of the illegal search/seizure? 44

1.Two theories 44

a.4th amendment as atomistic and defending each individual person as an atom 44

b.4th amendment as regulatory and regulating the gov't--standing requirement and exclusionary rule act in opposition (evidence seized in violation of the 4th is excluded to deter, but requirements of standing to raise a 4th claim often undercuts this, as it limits the number of people who can bring misconduct to evidence of court so exclusionary rule can be applied) 44

2.Test for 4th amendment standing: Did activity violate your reasonable expectation of privacy? 44

3.Linkletter: having the violation not of your right might scrap standing 44

4.Alderman: only those violated by the search itself can protest the evidence, not third parties also aggrieved by the evidence 44

a.Exception (Padilla); co conspirator who had supervisory role or joint control over property where seizure took place 44

b.Dissent: should be general prohibition 44

5.Payner: 44

a.Facts: IRS hired private investigator to enter bank official’s apartment, steal briefcase, photocopy, and return; sought to use evidence against Payner 44

b.Issue: should the exclusionary rule be applied in serious illegality if D lacks standing (was not D’s individual rights violated)? 44

c.Holding: In this court, no. 44

d.Problem: atomistic standing rule worked as an incentive for government to act illegally 44

ii.Car passengers, guests, and visitors 44

1.Rakas v. Illinois 44

a.Facts: police stopped car, seized a sawed-off rifle and shells seized by the police during the search of a vehicle in which petitioners were passengers (locked glove compartment and under seat) 44

b.Issue: Did the challenged search or seizure violate the 4th amendment rights of a D seeking to exclude the evidence seized during it? Did the disputed search or seizure infringe on an interest of the D which the 4th was designed to protect? 44

c.Test for determining the scope of constitutional rights protected by the exclusionary rule: focused on the substantive question of whether petitioners had their own rights infringed by the police's search and seizure, rather than on the concept of standing, as previously decided. 45

i.Appropriate measure of rights was no longer guided solely by whether petitioners were legitimately on the premises that the police searched. 4th amendment protects only those places in which petitioners themselves had a reasonable expectation of privacy. 45

d.Holding: Petitioners' rights were not violated where they had no legitimate expectation of privacy in areas of a car in which they claimed no property or possessory interest. 45

2.Rawlings: 45

a.Facts: D put contraband in third party’s purse (maybe because he saw cops coming) 45

b.Holding: failed to show that his legitimate expectations of privacy were violated by the search of her purse--can't challenge search of an area by claiming ownership of property seized. 45

c.Rationale: Performed totality of the circumstances analysis of legitimate expectations of privacy (who had access, etc.) 45

f.Good faith 46

i.Leon 46

7.Inevitably, courts will try to find a way through these rules to make sure the murderer doesn’t walk, although the street corner dealer might 47

8.Civil remedies 47

a.Robbins v. Chronister (are private suits for damages really remedial?) 47

Identification Procedures 47

Police Interrogation 49

1Policy Concerns 49

a.Police interrogation constitutional concerns: 49

i.Right against self-incrimination- Fifth Amendment 49

ii.Right to counsel- Sixth Amendment 49

iii.“Voluntariness” requirement- Fourteenth Amendment 49

b.Doe v. US 49

i.Facts: Suspect was compelled to consent to let the Government access his offshore bank accounts. 49

ii.Seven factors underlying self-incrimination clause 49

9.The “Voluntariness” Requirement 50

a.Fifth Amendment: “…nor shall [any Person] be compelled in any criminal case to be a witness against himself…” 50

b.Fourteenth Amendment: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 50

c.Due process/voluntariness/totality of the circumstances test barred used of confessions 50

10.Fifth and Sixth Amendment Rights 51

a.Massiah v. US 51

11.The Scope of Miranda 52

a.Waiver: After the suspect is given his Miranda warnings, the defendant needs to “knowingly and intelligently” waive his rights before the police or prosecution can interrogate him and use any incriminating statements in court. 52

1.The courts must presume that a defendant did not waive his rights; the prosecution’s burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the persons interrogated 53

2.In this case, the defendant was informed of his Miranda rights, refused to sign a waiver, but still went on to volunteer information 53

3.A suspect may refuse to sign a waiver but nonetheless indicate that he is willing to talk 53

1.Facts: Defendant was advised of Miranda rights three times and he signed an acknowledgement that he had been informed of his rights. The defendant said he would not make a written statement without his lawyer, but went on to orally admit his involvement in the crime. The police used the oral admission at trial. 53

2.Issue: The defendant argued that his expressed desire for counsel before making a written statement served as an invocation of the right for all purposes. 53

3.Holding: oral statement was admissible. “Miranda gives the defendant a right to choose between speech and silence, and Barrett chose to speak.” 53

4.Concurrence: because Barrett testified at trial that he understood his Miranda rights. Without the testimony, Brennan would have dissented, because it’s odd for someone to be willing to talk yet not have anything written. Seems to suggest the waiver was not knowingly or intelligently made. 53

vii.In practice, it appears that as long as the warnings are given and the suspect exhibits no overt signs of a lack of capacity to understand them, his waiver will be upheld. 53

b.Threshold requirements: is it custody: 53

i.When are Miranda warnings necessary? 53

ii.The Court rejected the “focus” test from Escobedo and held that Miranda applies “after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way”. 53

iii.Objective test: how would reasonable people in the suspect’s situation have perceived their circumstances? 54

iv.Beckwith 54

1.Facts: interview by IRS agents not proceeded by Miranda warnings, because focus of criminal investigation 54

2.Holding: not custodial/not deprived of freedom of action 54

3.Rationale: In his own home, so not deprived of freedom of action 54

v.Stansbury: officer's subjective view if person being interrogated irrelevant once in custody 54

1.Immediately ceasing the interrogation; 56

2.Suspending questioning entirely for a significant period; 56

3.Giving a fresh set of Miranda warnings at the outset of the second interrogation. 56

12.Assessing Miranda 58

a.Title II of Crime control Act 58

i.Balancing test to determine voluntariness (and, in essence, admissibility) 58

13.The Sixth Amendment Right to Counsel 59

a.Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. 59

b.Brewer v. Williams 60

Exam Techniques 64

Policy thoughts 64

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