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Terms in this set (112)

§ Testimony
§ Why is this a investigatory failure?
□ To the federal supreme court, there was a confession but without a confession where they admitted coercing the witnesses there was no other evidence that they committed the crime
§ How did these gentlemen confess to commit a crime?
□ Beaten by county deputies; told to confess
□ Told if they didn't confess, they would continue beating them
□ Did they get on the stand and say the same thing?
® They did
□ How do we know they were beat?
® Officers got on stand and admitted
® That was acceptable at the time
§ When we look at a coerced confession...does this inhibit our ability to have a fair and just trial?
□ This case is about due process
□ The question is whether the physical torture affects our due process under the 14th amendment
® It's about anybody who is physically tortured
§ Yes, this is a violation of the 14th amendment
○ Remedy:
§ Remanded for further hearings
○ Prosecutor sought justice and kept them charged with the crime
○ Role of prosecutor to seek justice and determine if crime was committed
○ Prosecutor could have let them go
○ State appointed attorney told them to take a plea and they took the plea and served their time
○ Physical torture eliminated by Brown
• Brown: such a confession extracted by "brutality and violence" is not given voluntarily
○ Violates the fundamental right to fair trial procedures
○ Under heading of fair trial procedures
○ When we look at fair trial procedures we will focus on that confessions would not bring about fair trial; involuntary confession
○ Really not about investigation but about trial
• Is an arraignment a critical stage? Yes; where people plead guilty or not guilty
• Judge appointed all the members of the state bar to represent the defendants for purposes of arraignment
• Defendants pleaded not guilty
○ One of them called the white woman a liar
• Did they have a lawyer at trial?
○ Mr. Roddy was a Tennessee lawyer--he appeared--said he wanted to participate in the defense
○ Mr. Moody came forward on the day of trial to assist Mr. Roddy
§ Said he was going to help Mr. Roddy
§ Didn't say he was going to help them
§ They had lawyers at this moment
• What is a lawyer going to do with client?
○ Develop
○ Interview them; gather info; do investigation
○ Did Mr. Roddy and Mr. Moody have any info at the time when trial started to present a proper defense?
§ NO
§ What is our trial failure?
□ If you have a right to counsel, it's bigger than just having someone to represent you at trial
○ What must US Supreme court look for to determine if they are going to overturn a decision?
§ If constitutional rights were violated
§ We aren't looking whether they did it or not
§ If we are looking at a fair and just process...what was unfair about this process?
□ Counsel was inadequate; violates 14th amendment
® State charge
® When you see a state charge-->looking at 14th
® Federal-->looking at 5th
• The court does not express doubt about the guilt of the defendants. For example, the court noted "however guilty defendants, upon due inquiry, might prove to have been"
• Thus, it is fair to assume that the procedural failure to provide counsel was enough to reverse the convictions under the extreme facts of Powell
• The court concludes that the trial court failed to make an effective appointment of counsel
• Decision only relates to these facts:
○ 9 uneducated black men
○ Capital case
• What was the quote that let us known the specifics of this case that demonstrate that everyone is deserving of effective counsel?
○ "even the intelligent and educated layman has small and sometimes no skill in the science of law" pg. 26
• Implications
○ What right to counsel does this language suggest?
§ Right to counsel is an effective right to counsel
○ To what class of crimes do these comments apply?
§ Capital crimes
• Client told attorney that he wanted to say on the stand that he saw something metallic
○ Worried if he said he didn't see a gun that he would be screwed
○ If he saw a gun could claim self-defense
• Would it have been necessary to see something that was or looked like a weapon in the victim's hand?
○ Attorney said ok if reasonably believed there was a gun; even if he was wrong...mean he won't have valid self-defense claim? No as long as believe in circumstances was reasonable
• Client concerned no one will believe him unless they think he saw something
• Attorney says it would be perjury
• Here it is not just that he remembered here it is he said he already didn't see anything but not wants to change it
○ In a gray area; attorney's best they can get is a reasonable belief; what story can I support in good faith given all the info I have?
§ Doesn't the attorney have a responsibility to help his client though? Where does that balance fall between responsibility to client and responsibility to acting ethically
□ Responsibility to the court--to the profession and some responsibility to the client but there's a conflict between what client wants and what attorney's responsibilities are to the profession & to the court;
□ Who controls what I do?
® What position are you in when you have to tell the client...I can do so much for you but there's a limit?
◊ Withdraw or disclose
◊ This lawyer disclosed
◊ Doesn't that counter to his client's interest? It's for your client's interest...if he goes up and perjures himself there's a possibility of an additional charge....
◊ Professor's point: my effectiveness doesn't depend necessarily on doing whatever the client wants...is it in part?
◊ Are the client's wishes not important to whether they received effective counsel? What your client wants matters
◊ The client has the ability to set goals but as far as how we achieve those goals it's our responsibility
◊ We have to live under the limits on what the law places on us
• Who is in charge?
○ Even if represented by counsel, defendant has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, take an appeal
○ Lawyer has full authority to manage conduct of the trial and has authority to manage most aspects of the defense without obtaining client's approval
• Basic trial right: counsel must consult with the defendant and obtain consent to the recommended course of action
• If we don't add that adjective "effective" into counsel...have I really received counsel if it's not effective?
○ According to the law, no. Counsel should be effective. As far as what's effective we can differ at what's effective
• Gideon requested counsel; but judge wouldn't give it to him...only if capital charge
• How is it possible that if the 6th amendment guarantees the right to counsel in a criminal proceeding how is it that florida can tell him he can't have an attorney?
○ Different between state & federal; florida hadn't adopted it
• How did Gideon do in court:
○ "about as well as he could do for a layman"
○ Opening statement
○ Cross examination
○ Presented his own defense
○ Maintained his right to remain silent
○ Closing argument
• We really are a nation of multiple sides; federal government is limited
○ The 6th amendment only binds the federal government; the 14th amendment must apply to the state
○ Unless somehow, someway that those guarantees apply to the states as well...they are meaningless
• Is right to counsel a fundamental right? Is it essential to a fair trial?
○ Betts Court said no
§ Is right to counsel a fundamental right? If it's fundamental what does it mean...it has to be applied.
§ If you look at the 14th amendment we spend a lot of time discussing due process
□ 14th amendment only becomes relevant
□ Supreme court in 1873-->the states can't do anything to infringe upon the privileges and immunities of citizenship-->supreme court limited that in 1873
□ We had to find another way to look at it
□ As a matter of due process it's inappropriate for government to put you in jeopardy of losing life, liberty or property regarding to due process...how do we decide what's fundamental? The Betts court said effective counsel is not fundamental
○ State and federal constitutions place great emphasis on procedural and substantive safeguards
• Is him having a lawyer a fundamental right?
○ The government spends lot of money on their counsel, if there is no counter than the adversary system fails
§ But still does not say what is fundamental
• How do we determine if a right is fundamental?
○ Either enumerated in constitution
○ OR
§ 2 part test:
§ Deeply rooted in tradition
§ And ordered in the scheme of liberty
• Application to State Court proceedings
○ Betts (1942): Roberry Trial in Maryland: Sixth Amendment applies only to trials in federal courts. Appointment of counsel in state court proceedings not a state right.
○ Gideon (1963): watershed case; reversed Betts; fundamental right and essential to fair trial; any person, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided to him.
• Sixth Amendment
○ "In all criminal prosecutions, the accused shall enjoy the right...to have the assistance of counsel for his defence."
§ Protections of the the amendment right to counsel brought to the states through the 14th Amendment due Process clause
○ It's going to end up not mattering whether you're in state of federal court with most rights we'll be talking about in this course
○ Criminal procedure and con law kind of go hand in hand
○ Reliability
○ Accuracy
○ Fairness
○ Legitimacy
○ Efficiency
○ Limiting Government
• Reliability & Accuracy
○ Distinction between reliability and accuracy--to gauge accuracy requires knowing the truth but we lack the epistemology to uncover truth
○ Reliability describes an outcome that meets certain truth conditions the process imposes on outcomes--e.g., the right to confront witnesses, to have a lawyer, and to require the State to prove guilt beyond a reasonable doubt
§ Do we want a system gauged more towards accuracy?
• Accuracy & Fairness
○ Accuracy may have nothing to do with fairness
• Fairness & Legitimacy
○ Fairness and legitimacy overlap but are distinct
• Efficiency & fairness
○ Efficiency is largely hostile to fairness
• Limiting government
○ Limited government may have nothing to do with any of the others
• Courts struggle with these concepts
• The Norms Post-September 11
○ How much privacy should our society be prepared to sacrifice in exchange for greater security? Do we already sacrifice too much privacy or should we be willing to give up a good deal more if necessary?
• Sources of Law
○ Constitution
§ State and federal
○ Statutes
§ Federal title 18--Crime and Criminal Procedure
§ Federal title 21--Controlled Substances Act
§ Arizona Revised Statutes Titles 8 (juvenile) 13 (criminal code)
○ Rules
§ Federal Rules of Criminal Procedure
§ Arizona Rules of Criminal Procedure
• Prosecution Systems
○ Multiple jurisdictions, major and minor crimes
○ The gap between law and practice
○ The roles of prosecutors and defense counsel in various stages of a criminal prosecution (stages from pre-arrest investigative stage to the post-appeal stage of "post conviction" remedies")
• Concerned about procedures in criminal procedure
• Pre-Arrest Investigation
○ Arrest
○ Booking
○ Fingerprinting & Processing
○ Charging
§ Complaint]
§ Indicment
○ Client's perspective...looks different
○ Initial appearance & indictment
○ Apperance before a judge
○ Appointment of counsel
○ Pre-trial motions
§ State evidence
§ Defense-suppression
○ Jury selection
○ The trial
○ Jury deliberation
○ Sentencing
§ Death penalty
§ Imprisonment
§ Jail
§ Probation
§ Fine
○ Appeals
§ Direct appeal
§ Death penalty appeals
○ What are we talking about?
§ We are talking about liberties--as in the "liberty" that the due clauses protect
§ Almost none of these liberties appear anywhere in the Constitution; rather, the great majority are deemed to be fundamental rights that the Constitution implicitly protects
□ e.g. abortion
§ The result of these rights;' status as fundamental is that the government must meet a high standard to interfere with them
□ Doesn't mean the government can't take them away; you get to put people in jail; you can take property away
§ The rights that we will discuss come not only from the Due Process Clauses, but also from the 14th Amendment's Equal Protection Clause (and in some instances from other Constitutional provisions)
§ The main distinction between Due Process and Equal Protection is the way in which we will describe the arguments
□ Due process: does a sufficiently important purpose justify the government's interference?
□ Equal protection: does a sufficiently important purpose justify the government's discrimination as to who get to exercise the right?
• Incorporation
○ The protections listed in the Bill of Rights only protect against the federal government's activity
○ Under Incoporation theory, virtually all
• Incorpoation jurisprudence encompasses four main theories
○ Selective incorporation--review Bills of Rights provisions on a case by case basis
• Everything in Amendment 1-8 incorporated except
○ 3d amend
○ 5th amend--right to grand jury criminal indictment--expressly held not incorporated with states
○ 7th amend--right to civil jury trial--not incorporated
○ 8th amend--prohibition against excessive bail and fines--no ruling from the court to date
§ Except for these 4...all apply to states through 14th amendment
words in ( ) are where issues arise under amendment
○ The right of the people to be secure in their (persons), (houses), (papers), and (effects), against unreasonable searches and seizures, shall not be violated, and no (Warrants) shall issue, but upon (probable cause), supported by Oath or affirmation, and (particularly describing the place to be searched), and (the persons or things to be seized. )
§ 8 possible issues
§ Why not searches and seizures?
□ If those 8 not met, considered an unreasonable search and seizure
§ Oath or affirmation determines if warrants is applicable
□ Won't be an issue normally
§ The cases have determined what all those things mean
§ If not met it, unreasonable search and seizures
○ The Fourth Amendment represents a compromise between the need of government officials to gather evidence and the right of citizens to be free from governmental intrusion
§ Public policy issue
§ Fourth amendment limitations on governmental investigations are equally applicable to the state and federal governments
§ Balance between gathering and right of citizens
○ Basic Fourth Amendment Analysis
§ This is where you plug in your case & info
□ (1) Search by government?
® Yes
◊ Private persons ARE not government entity
◊ How do we know if governmental entity?
◊ Government employee--id that shows governmental employee
◊ If deputize you OR government asks you to search-->a government informant-->come in there with wires
□ (2) Reasonable expectation of privacy? Standing? People?
® Plug in cases
® Now have to establish can assert fourth amendment claim via these two things
® Persons--where can assert standing? Own home where? Home has to be within the united states. Have to assert standing.
® Standing issue comes in where house located-->must be united states
® e.g. case where they searched his house in mexico; not under fourth amendment
□ (3) Was there a warrant?
® Plug in everything...oath and affirmation, probable cause, places to be search
® Yes there was a warrant
□ (4) Was warrant proper and executed correctly?
® Find cases that fit in there...
® If yes
® If no warrant or not executed correctly...move to 6
□ (5) RESULT: Search is valid
□ (6) Police good faith? Inevitable Discovery? Independent Source?
® Good faith-->executing wrong warrant but have ecstasy pills on table...bad warrant...wrong address...but police had good faith thinking it was the right house
® Yes
◊ Search is valid
□ No warrant (7) Warrant Exception: Incident to arrest, Auto Search, Plain view, consent, stop and frisk, hot pursuit/evanescent evidence
® Evanescent evidence-->easily destroyable-->police on hot pursuit for someone and goes into your house...you have drugs on table...no warrant needed....
® If you hit a no on the government is wrong...fourth amendment exclusionary rule comes in...that's your conclusion for no
□ 4th amendment applicable to states via the 14th amendment
§ Necessary case--without her we would not have exclusionary rule for state court
§ General rule that says exclusionary rule is not applicable in state and federal criminal cases
§ There was a warrant...proper and executed correctly?
□ No; not proper...no warrant was ever really produced...no facts that it described under oath and affirmation and described person to be searched etc.
□ It wasn't police in good faith because they lied about it
□ End of no...no guarantee under wolf...shocks the conscience
® Searched her bosom->would shock the conscience at this time-->turtle neck
® She called her attorney and wouldn't let her talk to her attorney
® Searching for bombing suspect but were looking at places like pill bottles etc.
□ What was attorney's argument?
□ This was the first case where the U.S. Supreme Court allowed the American Civil Liberties Union to argue the case as amicus curiae
□ Why did the court allow the ACLU to join the case when the defendant and the state were already joined in legal combat?
® Mapps' attorneys originally appealed the case on the basis of the obscenity charge. When the ACLU filed an amicus brief, it added that the abusive search procedure should also present an opportunity to review the Whole decision--an opportunity it obviously felt would be well received by the court
□ We now have a fundamental guarantee if evidence will be excluded if found violation of fourth amendment
§ LANDMARK DECISION
□ Through Mapp evidence obtain in violation of the fourth amendment rights will not be used against a defendant in criminal trial
□ The integrity of the court was at issue as well in that if the court permits prosecutors to use unconstitutionally seized evidence, the court would be neglecting or defying the constitution and judges would be acting as accomplices in the willful disobedience of a constitution that they have sworn to uphold.
□ USE SEARCH IS "UNREASONABLE" IN LANGUAGE FOR WRITING
§ Sgt. Carl Delau knew Mapp and her former husband
§ Issue of privacy
§ ****1st rule from majority opinion: What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.
□ How do we knowingly put our crap out in the world?
® Facebook
□ Knowingly expose is the first test
® On the phone in the public
◊ How on the phone would you be exposing your convo to the public?
◊ Having convo in classroom
◊ How to make it private?
◊ Text it under the convo
◊ Take out the vowels
◊ Code
® Face to face convos with people
◊ Convo in elevator with other people if someone goes and tells that convo...we have to

○ What are we talking about in katz?
§ Telephone conversation
§ Put a device on phone
§ Public telephone...door was closed. Chance that public could read lips, glass booth-->can see through them. We could see guy having convo.
§ Where was the transmitter?
□ On the outside of the phone booth
® Why was this important?
□ The issue: protection of the person in the conversation
® Conversations goes under person's in chart
○ ***Two part test you use in addition to knowingly expose:
§*** (1) a person must have shown a subjective expectation of privacy
§ ****(2) expectation must be objectively reasonable
□ In katz...
® Subjective expectation of privacy? YES; closed door; talking to one person and didn't expect others to be listening to convo; only called the one person
® Didn't expect gov to tap convo; only called the one person
® Filter: there were three phone booths...gov. tapped two. How did they know which two to tap? Put third one out of service..they knew he'd use one of those two.
® How do we determine that this is not a white issue?
® Person he was talking to in katz gave no consent for another person to listen
® Another way to determine if convo was supposed to be private
□ Would a reasonable person believe you should have this expectation of privacy in convo?
® As a law abiding citizen, no
® Due process-->we are to be freedom from governmental instrusion
® Also balance privacy v. governmental investigation
® Need for gov. to investigate v. right to privacy
□ Objective-->when they tap our phone, we hope there's probable cause...some reasonableness
§ Is it necessary for gov to investigate illegal activity?
□ YES because criminals
§ Always go back to balancing test
§ Katz had a reasonable expectation of privacy; individual he was speaking to had a reasonable expectation of privacy
○ The fourth amendment protects people not places
○ What a [person knowingly exposes to the public Is not the subject of Fourth Amendment protection. But what he seeks to preserve as privact, even in an area accessible to the public, may be constitutionally protected
§ What measures did you take the keep your convo private?
2. The lip-reader hypothetical is indeded to raise the important issue of whether the mode of governmental instrusion
3. Notes and Question 4 and 5
a. Subjective and Objective test
i. The fourth amendment guarantees a citizen's right to be free of unreasonable searches and seizures
1) Government action constitutes a search when the action
a) Intrudes
The Fourth Amendment protects people not places.
"What a person knowingly exposes to the public . . . is not the subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."

The lip-reader hypothetical is intended to raise the important issue of whether the mode of governmental intrusion should matter in "search" analysis.
Justice Stewart distinguished between the intruding eye (no protection in the booth) and the uninvited ear. By standing in a glass booth, like standing in a glass house, Katz knowingly exposed himself, and his lips, to others. One could infer from this that the mode-of-intrusion is relevant to "search" analysis. Sometimes lower courts have focused on the mode-of-intrusion distinction


Sometimes lower courts have focused on the mode-of-intrusion distinction.
For example, one court held that the government conducted a search when it secretly videotaped activities in a room used by public employees during their work breaks, although the room was not private and could have been entered freely by anyone. State v. Bonnell, 856 P.2d 1265 (Haw. 1993).
And, the California Supreme Court in Triggs held that a "search" occurred when the police surreptitiously observed the homosexual activities going on in a doorless—yes, doorless—toilet stall in a public restroom. Sure, the men knowingly exposed their activities to anyone who entered the restroom, since their actions would have been visible in the absence of door stalls, but the court focused on the means used to observe the activities.



Subjective and Objective test
The Fourth Amendment guarantees a citizen's right to be free of unreasonable searches and seizures.
Government action constitutes a search when the action
1) intrudes on a citizen's subjective manifestation of an interest in privacy, and
2) the citizen's privacy interest is one that society views as objectively reasonable.

"Most Significant Measures"
A citizen is not required to take the most significant measures available for keeping people away to demonstrate a privacy interest.
The citizen must simply indicate her intent that no unintended persons hear or see the information she desires to keep private.
A defendant who demonstrates the violations should be able to establish a Fourth Amendment violation unless the Government's actions are found to be reasonable.
Supreme Court held that the use of a thermal imaging device was a search protected by the Fourth Amendment because the device obtained information that could not have otherwise been obtained without physical "intrusion into a constitutionally protected area."
The Court focused on the fact that the device was used to detect information inside the home and the device was not in general public use.



§ Used heat sensing equipment to see if there's weed in there
§ Heat sensing equipment can see people, someone taking a bath, heat lamps from weed
§ Gave info that was constitutionally protected and info that was not constitutionally protected
□ 3rd part to test
□ Even if it determines non-constitutionally protected interests...but if it also exposes constitutionally protected interests...it is a search.
® Changes over time if technology changes; if technology is readily available to the public...not a search if anyone can do it
◊ What you going to do to combat that argument?
} Something that counters it; remember what you want to do it...is make it be private
} "but wait a minute...I made this private. e.g. closed all the shutters. Added this over here.." even if everyone in public could get it, I'm ascertaining with significant measures to make it private
□ Supreme court held that the use of a thermal imaging device was a search protected by the fourth amendment because the device obtained information that could not have othwewise been obtained without physical intrusion .....
§ Sensing equipment was NOT available at this time?
○ Totality of the Circumstances (Rule)
§ A common sense person (WHO?) looking at the totality of info/,considering the fact that some of it was hearsay,/and make a common sense determination/ of the reliability and sufficiency of the information/ supporting probable cause.
□ Is the officer making a determination of probable cause on their own? OR
□ Is magistrate looking at affidavit and making a determination of probable cause?
□ Common sense person-->officier, magistrate, regular everyday person, reasonable person
® Looking at affidavit...being neutral; taking self out of "I know the law." stepping back and saying "Is there a fair probability that I am seeing here a crime...or evidence of a crime?"
◊ Not the legal minded person

Police officer has a great sense of smell when it comes to marijuana. Officer making determination as "anyone walking up here can know this is weed."




○ Did this person make any wages with spinellI? No
○ See Spinelli using phone? No
○ What is this person really saying? "I see someone going into this house that has two phones"
§ Is that a fair probability that a crime is being committed or has been committed? NO
§ Charged with gambling
§ Is having two phones in an apartment a crime? NO
§ In 1969, very very luxious to have two phones
§ based on this info...what did officer do when got this info from informant? Trailed spinelli; contacted telephone company;
□ Didn't establish anything different than what informant gave them
○ Supsicion for crossing state lines
§ Suspisicon that he's a gambler...but they have to have more
○ Where two part test comes in
○ Spinelli--Corroboration
§ A defect in one or both of the prongs could be remedied if
□ The police obtained significant independent evidence corrobating the info related by trhe informnant
® However the corroborative evidence had to be substantial, or corroborative of suspicious facts in order to shore up a defect in one of the prongs.
§ What could they have done?
□ Could have wired someone and told them to go place a bet then after place bet observe him go into place; pay money...get him to do it for a period of time
§ What type of warrant did they seek?
□ Search warrant
□ They are seeking information to seize
§ With corroboration if there's a defect in one of the two prongs
□ A strict and reliable corroboration will stand in its place
• Home & homeowner
• Is a warrant required for an in-home arrest?
• Did not request an arrest or search warrant
• Did officers have probable cause to obtain a warrant even though they didn't?
• Probable cause rule: officers did have probable cause to obtain a warrant; totality of the circumstances-->look at what info they had that made them reasonably believe he was possibly there? Identified as suspect; given tip that he was residing in that apartment
○ Two part test-->
§ (1) basis of knowledge-->how they got it
§ (2) whether or not the informant was credible
□ Another step to get probable cause-->collaborate....could have waited outside apartment to see if he was there
§ What did they do with their collaboration? Went directly to apartment and knocked on door; when no one answered...went in
§ Decided not to wait for warrant
§ Before payton, in NY this was allowed
§ They adhered to their guidelines
§ Why are we here?
□ Fourth amendment's language...right of persons to be secure in houses
□ Is mr. payton's protection violated if enter house without warrant?
® Katz...balancing objective vs. subjective
□ Is payton home? No
® Walk in and find a shell casing
® Seized it and used it as evidence
® He was convicted
□ Lawyer arguing that because they didn't have a warrant; evidence should be suppressed
□ Is this a violation of his fourth amendment rights?
® Yes
§ What do we take from this case and main rule...when have an issue with home encounter and dealing with arrest...
□ Do we have a warrant?
® If no...may have an exception
□ Probable cause is also an exception
□ Is this about the home or person? Person
® Illegal search or illegal seizure?
§ (1) did they go to home to search or arrest him? Arrest him
□ Doesn't feel free to leave-->seizure
□ If you go into a home to arrest a person without a warrant...seizure
□ In home and picking up stuff...search
□ Originally violating seizure
§ When looking at home entry....major aspect of case to determine whether your in a home
□ Uniform under payton: you need a warrant to seize unless exigent circumstances
□ The court held that the 4th amendment prohibited the police from arresting the defendant in his home without a warrant in the absence of exigent circumstances
□ The warrant requirement in payton is not intended to protect the citizen....
□ Wasn't about the illegal arrest; but illegal search
• Warrantless Arrests
○ Payton Violation Constitutes Illegal Search, Not an Illegal Arrest
§ It follows that when an officer has probable cause and arrests the d in his home without exigent circumstances....
○ "not in my house"
○ Search warrant to get into my house
§ Protected by fourth amendment
○ Search warrant-->only get based on probable cause with info presented in warrant
§ Search anywhere they can reasonable believe you be located
□ e.g. dryer, washer machine, under bed
§ Arrest warrant not sufficient If the suspect is temporarily in the home of another
§ Officer may not search for the subject of an arrest warrant in the home of a third party without first obtaining a search warrant
§ Stegald v. United States--courts held, in the absence of exigent circumstances or consent, a search warrant must be obtained to look for a suspect in the home of a third party if the suspect is not a resident of the premises. That is, a magistrate must determine whether there is probable cause to believe that the suspect is located in the home of the third party
○ Rationale of steagald--the court reasoned that an arrest warrant would
• If they ain't looking for you, don't let them in


Rationale of Steagald - The Court reasoned that an arrest warrant would not protect the privacy interests of a third-party homeowner, since the arrest warrant was not based on any judicial determination that there was probable cause to search for the suspect in the third party's home.
Arrest Warrant Not Sufficient if the Suspect Is Temporarily In the Home of Another
Is the Suspect Living at or Visiting the Premises
Who Has Standing to Object to the Lack of a Search Warrant?
Can a Visitor Object to the Lack of an Arrest Warrant When Arrested in a Third Party's Home?




Search Warrant is Required for an Arrest in the Home of a Third Party
Is the Suspect Living at or Visiting the Premises
It is important to determine whether the suspect lives at the premises, in which case an arrest warrant is sufficient, or whether he is merely visiting there, in which case a search warrant is required. Courts have looked at how long and how consistently the suspect has stayed at the premises, whether the suspect is responsible for any utilities, and other indicia of permanent residence.
Ollie Ocean was planning to rob Casino Arizona. While planning the heist, he visited his lawyer's firm in downtown Phoenix. Ocean's lawyer, Joann Galloway, was a well-known criminal defense attorney. Remembering that he had forgotten to mention a crucial piece of information about the heist to his explosives expert, Basher, Ocean placed a call from the firm's "telephone room." The telephone room is a small, windowless room with a locking door that the firm maintains just off the main lobby so that visitors will be able to make calls undisturbed and without interrupting firm business. Ocean did not lock the door when he called Basher.

Long suspecting that Ocean was planning a "job," but without enough hard evidence to secure a warrant, Phoenix police detective Roscoe P. Coltrane followed Ocean to Galloway's office. Coltrane had detailed structural drawings of every building Ocean visited frequently, including Galloway's law firm.

Two weeks earlier, the police department obtained a prototype of a sophisticated tracking device that measures a subject's body heat and provides an image to the user. The manufacturer gave prototypes to the police departments in Phoenix and four other cities for a three-month test before releasing the product on the open market. Coltrane used the prototype to follow Ocean's movements inside the law firm.

By using the tracking device and the drawings, Coltrane determined that Ocean had gone into the firm's telephone room. Remembering that the FBI had installed wiretapping equipment (legally) on the firm's telephone lines as part of an investigation unrelated to Ocean, Coltrane called and asked the local FBI office to listen to and record Ocean's conversation.

Based on the telephone call, Coltrane obtained warrants and arrested Basher and Ocean. Both want to challenge the arrest warrants on Fourth Amendment grounds. Using the cases and materials you prepared for today's class:

1. As counsel for Basher and Ocean, what Fourth Amendment challenges would you bring?

2. As counsel for the government, how would you answer any an- ticipated Fourth Amendment challenges brought by Basher and Ocean?

3. As the judge confronted with these arguments, how will you rule and why?
Relevant cases

Katz & Greenwood : Expectation of privacy - subjective (did Ocean actually expect privacy in the phone room and rooftop meeting?) and objective (would a reasonable person have expected privacy in the phone room and rooftop meeting?)

Karo : Police are not entitled to use electronic or other mechanical devices to determine whether a particular person or thing is in someone's home at a particular time (but does this extend to businesses?) without a warrant, probable cause, or reasonable suspicion.

Kyllo : Use of an imaging device not generally available for public use is a search for Fourth Amendment purposes, and is presumptively unreasonable without a warrant. (But since this device is about to be released on the market, is it "available for public use"?)





























Suggestions for Answers


Basher's problem

Is really one of standing. He will have to somehow demonstrate either 1) that he can attach himself to the police's invasion of Ocean's privacy, or 2) that he had some privacy interest of his own that the police invaded. He'll have a tough time with either argument because the police were tracking Ocean, not Basher. Basher's lack of standing won't allow him to attach himself to Ocean's claim and since the police didn't tap his phones, he won't be able to establish his own claim.


Ocean's problem

The first issue is whether Ocean can demonstrate that Coltrane violated his Fourth Amendment rights when Coltrane eavesdropped on Ocean's telephone call held in the "telephone room" at the firm of Ocean's lawyer, resulting in Ocean's arrest.

The Fourth Amendment guarantees a citizen's right to be free of unreasonable government searches and seizures. Government action constitutes a search when the action 1) intrudes on a citizen's subjective manifestation of an interest in privacy, and 2) the citizen's privacy interest is one that society views as objectively reasonable.

In Katz v. United States, the government convicted the petitioner of illegal wagering in part based on evidence from telephone conversations on which the FBI eavesdropped. The appellate court affirmed the conviction, rejecting the petitioner's Fourth Amendment claims because the FBI had not physically intruded into the public telephone booth from which the petitioner placed the calls. The Supreme Court overturned the conviction, holding that the government had in fact searched the telephone booth by intruding on the petitioner's subjective privacy interest, an interest that is objectively reasonable.

In Katz, the Supreme Court found that a citizen's desire to keep a telephone conversation private is a legitimate interest recognized by society. The question for Ocean, then, is whether he subjectively manifested that legitimate interest.



Ocean made his telephone call from a small-enclosed room that was not accessible to the public, but only to the law firm's visitors. The firm makes the room available so that its visitors can make "undisturbed" telephone calls. By going into that room to place his call, Ocean subjectively manifested his intent to keep his call private.

Arguably, the government could state that Ocean's decision to make such a sensitive call from a place other than his or someone else's home may indicate that he had a lesser expectation of privacy. Moreover, he chose to keep the telephone room's door unlocked when he went in to make his call.

The government's arguments should probably fail. A citizen is not required to take the most significant measures available for keeping people away to demonstrate a privacy interest. The citizen must simply indicate his or her intent that no unintended persons hear or see the information he or she desires to keep private. Were a citizen required to meet a "most significant measures" test, the Supreme Court would have upheld the petitioner's conviction in Katz since he placed his call from a public telephone booth. Ocean should be able to demonstrate that Coltrane violated his Fourth Amendment rights unless Coltrane's actions are found reasonable.


In addition to Coltrane's eavesdropping on his telephone call, Ocean's second issue is whether he can challenge Coltrane's use of the electronic tracking device as a Fourth Amendment violation.

The government violates the Fourth Amendment when it, without a warrant or at least reasonable suspicion, uses electronic or other mechanical devices to determine that a particular person or thing is in an individual's home at a particular time.

Ocean could argue that Coltrane had no warrant to use the tracking device to monitor Ocean's movements inside the law firm, nor did he have any reason to suspect that Ocean would be involved in criminal behavior inside the firm. Ocean could argue, therefore, that Coltrane violated the Fourth Amendment when he used the device.

However, the government could argue that Coltrane knew that Ocean was in the firm without using the device. He was able to see Ocean enter the firm just as any other person might, so Ocean had no expectation of privacy in the fact that he was in the firm. The question is whether Coltrane's use of the device to track Ocean's movements inside the firm violated Ocean's Fourth Amendment rights.

The government could argue that just as Ocean did not have a reasonable expectation of privacy in the fact that he entered the firm, he probably did not have a reasonable expectation of privacy in the fact that he was in the telephone room, either. Any person present in the firm's lobby when Ocean entered the room or who asked the receptionist where Ocean was would discover that he was in the telephone room.

Although the only reason that Coltrane knew Ocean's whereabouts after Ocean entered the firm was that he used the tracking device, Coltrane's use revealed information that any member of the public could have gained. When an officer's methods reveal information that any person could have observed, the Supreme Court in Karo stated that the officer's conduct is not a search.

Ocean might argue that even though Coltrane could have observed him entering the firm, Coltrane's use of a technology not generally available to the public makes his tracking of Ocean's movements a search. The government would probably respond by stating that the technology is in the final testing stage before release to the public at large. Both government arguments, however, are probably unavailing.

The device Coltrane used was not available to the public at the time Coltrane used it. Constitutional violations are evaluated at the time they occur, and Coltrane's device was not yet in general public use when he observed Ocean.

The Supreme Court in Kyllo held that using a technology not in general use to obtain information that could not have been obtained without invading a constitutionally protected area is a search. In Katz, the Supreme Court held that the Constitution protects a citizen's subjective manifestation of a privacy interest when that interest is objectively reasonable; however, Ocean probably cannot demonstrate an objectively reasonable expectation of privacy in the fact that he was in the telephone room at that moment. His argument that Coltrane used a technology not available to the public is probably irrelevant because Ocean is not likely to establish that he was in a constitutionally protected area.

The result in this case is that Basher does not have standing to establish his own Fourth Amendment claim. Ocean will probably not be able to argue that Coltrane violated his constitutional rights by determining that Ocean was in the telephone room. Ocean probably will be able to exclude evidence of the substance of his conversation with Basher because Ocean subjectively manifested a reasonable expectation of privacy in the conversation itself and the law recognizes and protects citizens' privacy interest in conversations, even when those conversations take place while the citizen is physically in a public place.
--Cannot Be a Law Enforcement Official
--Coolidge v New Hampshire (1971) Court held that the state Attorney General could not issue a search warrant, even though authorized by state law, because as the one conducting the investigation, he could not be considered neutral and detached.

--Conducting the Search Destroys Neutrality
-- Lo-Ji Sales, Inc. v New York (1979) The Court held that when a magistrate actively participates in the seizure of property by accompanying officers to the scene to determine what could be seized, her neutrality became compromised and thus resulted in an illegal search and seizure



® Magistrate went with them to enforce warrant; searched through stuff
® Charge was obscenity
® Would have to put magazines, booths they searched etc
® Probable cause-->undercover police officer bought two films; totality of circumstances-->how did he believe crime had been committed? Searching for obscene videos
◊ Who determine obscenity? "you'll know when you see it"
® Officer establishing probable cause by:
◊ By hearsay
◊ Independent assessment
◊ Or collaboration
◊ He established independent assessment
◊ Viewed movies
® He's establishing pc with magistrate
® How is magistrate neutral and detached?
◊ No interest
◊ Not relatable or involved in investigation
® Magistrate violated neutral and detached
§ Conducting the search destroys neutrality
□ Magistrate could have gone...but should have not been involved in search
§ The court held that when a magistrate actively participates in the seizure of property by accompanying officers to the scene to determine what could be seized,.....



OTHER REQUIREMENTS FOR MAGISTRATE:

--Contingent Fee Destroys Neutrality
Connally v Georgia (1977) The Court held that a magistrate that received $5 for every warrant he issued but nothing for any warrant application he denied could not be deemed neutral. The Court held that such a pecuniary interest could impermissibly affect his impartial judgment. DUH!!!!!!!!!!


---"Rubber Stamp"
A magistrate who issues a warrant without reading the warrant or the supporting application is not considered neutral and detached as required by the Fourth Amendment. Such a magistrate has become nothing more than a rubber stamp for law enforcement.
In United States v Decker (1992), the Court held that a magistrate loses neutral and detached status when he fails to read a warrant because he was "intrigued" by the manner in which the officer became suspicious of the defendant.


--Need Not Be Lawyers
In Shadwick v. City of Tampa (1972), the Court held that a municipal court clerk, who was authorized by state law to issue warrants, but who was not a lawyer, could constitutionally issue arrest warrants for municipal violations.
Federal Courts: Shadwick has no bearing on Federal practice. In Federal courts, magistrates are lawyers who are appointed by the district courts under 18 U.S.C.A § 3060.
Major Crimes: The Court in Gates assumed that non-lawyers may issue search warrants for major crimes.


--Must Be Competent to Determine Probable Cause
Magistrate must have the intellectual ability to determine probable cause; however, since probable cause is a common sense standard, there seems to be no intellectual prerequisite or educational credential required as a matter of constitutional law.


Magistrate Decisions
There is no requirement that a magistrate give reasons for finding probable cause or for rejecting a warrant application.
Probable Cause: Based Only on Facts Presented to the Magistrate
--To protect against an officer working backwards and finding evidence then constructing a factual scenario, probable cause must be judged solely by the information presented to the magistrate in the warrant application.
Affidavits: A warrant is ordinarily obtained by submitting, to the magistrate, an affidavit of all the facts supporting probable cause. Some courts have held that probable cause must be determined solely on the basis of the info submitted in the affidavit. F.R.C.P 41(c). Other courts have held that the affidavit can be supplemented by sworn oral testimony before the magistrate.

○ Broken into two parts:
§ (1) places to be searched
§ (2) people to be seized


--Telephone Warrants
Most jurisdictions allow telephonic warrants, even when written warrant requirement applies; however, a warrant cannot be obtained by mere telephone conversation. The officer must prepare a written "duplicate original warrant," and then read that warrant verbatim to the magistrate. The magistrate then transcribes what is read in order to prepare an original warrant. A record must be made of the conversation. Those who give telephonic warrants are sworn by the magistrate. Most states have a rule of criminal procedure permitting telephonic warrants.
§ On call. Have to be available when officer requesting warrant
§ Some can be done telephonically; az allows it
§ Not just call him; but officer also dictates info that is given on the phone; magistrate dictates same info; officer sworn under oath that info is accurate; and warrant is given
□ Lot more work but still allowed


--Warrant is Obtained Ex Parte
The defendant is not present at a warrant application, and does not at that point get an opportunity to challenge the police officer's submission on probable cause. However, the validity of the warrant can be attacked at a suppression hearing before trial.
--Reasonable Particularity
The degree of particularity which is reasonable depends on the nature of the place to be searched, and on the information that an officer could reasonably obtain about the location.
Urban Areas: Particularity may be more restrictive-must say street address and, if applicable, an apartment number not just an apartment on a particular street.
Rural Areas: Particularity may be less restrictive - could say "a blue house with a trailer, with a broken mailbox, on highway 23A two miles from Tannersville" whereas "a house two miles from Tannersville" would not be enough information


Particular Description of Place to Be Searched:

--Applicability to More than One Location
If the warrant describes a location with information as specific as one could reasonable expect to obtain, then it is sufficiently particular even though the warrant could actually apply to more than one location.


--Incorrect Address
One problem that arises with respect to particularity of location, especially in urban areas, is where the warrant gives the wrong address for the premises to be searched. For example, assume that there is probable cause to search an apartment in a building on the corner of A and B. The building's entryway faces A, and the officer who prepares the affidavit gives the address as A Street. But the actual mailing address is B Street. Can the warrant satisfy the particularity requirement even though it sets forth the wrong address?
□ e.g. 94 12th street; grandma's house looks like one house...but there's an A & B even though doesn't say it; if you walk around to alley way, go into side door...great grandma's house; grandma has house in front; looks like 1 house but it's 2
□ So if police put 940 12th street and knock on grandma's door...don't knock and go in and they find some of her stuff she bought on
□ If the warrant describes a location with info as specific as one could reasonable expect to obtain, then it is sufficiently particular even though the warrant could actually apply to more than one location
§ Incorrect address
□ One problem that arises with respect to particularity of location, especially in urban areas, is whether the warrrant gives the wrong address for the premises to be searched. For example, assume that tere is probable cause to search an apartment in a buildimng on the corner of A and B. The building's entryway faces A, and the officer who prepares the affidavit gives the address as A street. But the actual mailing street is B. Can the warrant satisfy the particularity requirement even though it sets forth the wrong address?
® Some courts say yes; some say no



--Problems in Execution
In executing the warrant, the police may commit error if it is clear that the warrant, even though sufficiently particular when issued, was not intended to cover a certain area. Thus in Garrison, the officer could not execute the warrant if it was readily apparent before the search that there were two apartments on the floor instead of one


Particular Description of Things to Be Seized:
--Reasonable Particularity
As with other particularity issues, the test of whether a description of things to be seized is sufficiently particular is one of reasonableness, determined by the information that police could reasonably be expected to know prior to the search. In order to have probable cause to seize something, there must ordinarily be some information which reasonably identifies it, although the degree of precision will depend on the facts and circumstances of each case.


--Reasonable Particularity: Particularity by Incorporation
Groh v. Ramirez, 540 U.S. 551 (2004) The Court held that a search warrant that failed to particularly describe the items to be seized was invalid on its face, notwithstanding the fact that the items were described in detail in both the warrant application and the supporting affidavit.
Warrant was "plainly invalid" in that it "failed altogether" to comply with the particularity requirement of the Fourth Amendment
Warrant here "was so obviously deficient that [Court} must regard the search as 'warrantless' within the meaning of case law.
Warrant's facial invalidity is not saved by an application that adequately described the place to be searched and the items to be sized when the warrant itself did not describe the items to be seized at all.


--Catch-All Clauses in the Warrant
Clause that states particular items and includes a phrase such as "any other evidence of the crime" are deemed overbroad unless they are somehow qualified by the particular descriptions that are set forth together with the catch-all clause in the warrant. Nevertheless, phrases such as "other stolen property," other evidence of "narcotics trafficking" and other "misbranded drugs" have been struck down as overbroad.
The Court has held that to be sufficiently particular, a catch-all clause must be related to and qualified by previously described property, as opposed to a generalized offense.


--Severability
If some clauses in a warrant are sufficiently particular and other clauses are not, the overbroad clauses can be severed from those that are sufficiently particular. The warrant, and the search conducted pursuant to it, will then be evaluated on the basis of the valid clauses. If an item is covered by one of the valid clauses, then it is properly seized pursuant to the warrant even if the item is also covered by an overbroad clause such as a catch-all.
The Fourth Amendment does not contain specific language directing law enforcement agents on the correct procedure for executing a warrant. How- ever, the general clauses requiring probable cause and reasonableness have been interpreted as placing constitutional limitations on the manner in which agents perform those duties.


--Time of execution
Many jurisdictions have statutes or court rules providing that a search warrant must be executed within a filed period of time (e.g. five days). If law enforcements execute the warrant after that set time, the prevailing view requires evidence found in the search to be suppressed.


--New Information
Delay in executing the warrant may mean that the probable cause which existed when the warrant was issued is gone by the time the warrant is executed. In such a case, the search would be unconstitutional.


--Time of execution
Anticipatory Search Warrants
The search warrant in such a case is grounded in the magistrate's determination that, if certain expected events happen in the future probable cause will then exist to execute the warrant. Some lower courts have upheld such warrants.


--Execution in the Nighttime
States restrict time of execution based on daytime, nighttime, or both. Fed.R.Crim 41 restricts searches to daytime unless "reasonable cause" is shown. Daylight is specified by certain hours in the state statutes. "It is entry of the police in the nighttime, not their mere presence, that is thought to call for particular judicial authorization." State v Valenzuela (1987)
Notice Requirement
18 U.S.C.A § 3109 provides that a law enforcement officer may break into premises to execute a search warrant "if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant."
This Federal "knock and announce" statute, similar to those in most states, codifies the longstanding common law rule of notice conditioning official entry to premises, absent exigent circumstances.


--Notice Requirement
Rationale
Decreases potential for violence
Decreases possibility of police entering wrong premises
Allows for at least a minimal amount of time to prepare for official entry
Provides occupants with opportunity to voluntarily allow officers to come into their home, facilitating and speeding up the search process while, at the same time, minimizing the privacy intrusion and the possibility of property damage.




--Notice Requirement
Constitutional Basis: Wilson v Arkansas (1995)
Court held that "in some circumstances an unannounced entry into a home might be unreasonable under the Fourth Amendment." The practical effect of Wilson is limited to those few states which have no statute or rule requiring announcement before entry.
Failure to knock can affect reasonableness of search
§ Manner of entry
□ Notice must be given before an officer can break open an outer or inner door or window of a house. Triggered whenever officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a passkey, or open a closed door but unlocked door
§ Compliance with the notice requirement
□ How are the policeman's actions perceived by the occupants not on his magic words
® Based on occupants perception not police's actual words
® When the officer knocks on the door and says nothing and officer says "its me..." when he then comes in the court is going to look at how the occupants determine whether this officer gave notice he was going to enter or break it down



Notice Requirement
Manner of Entry
Notice must be given before an officer can "break open an outer or inner door or window of a house." Triggered whenever officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a passkey, or open a closed but unlocked door. Sabbath v United States (1968)
Compliance With the Notice Requirement
How are the policeman's actions perceived by the occupants not on his magic words.
Emergency Exception
Exigency-based exceptions (involving danger or destruction of evidence) to the knock-and-announce doctrine are not automatic (so called per se "blanket exceptions)
Exigency must be established individually in each particular case (whether or not, for example, it is a felony drug investigation where the existence of exigent circumstances may often be likely).



§ Emergency exception
□ Exigency-based exceptions (involving danger or destruction of evidence) to the knock and announce doctrine are not automatic (so called per se blanket exceptions)
□ Execution of a warrant issue
§ If you have a warrant, police do not have to specifically announce that they are police when knock
§ When you open door, you have invited person on outside to have something
§ When you have a search warrant, you CANNOT stop them from coming in
○ Emergency exception:
§ Standard: the standard to be met by executing officers before exigency is recognized as an exception is "reasonable suspicion" standard
® Case by case basis
§ In order to justify a no knock entry, the police must have a reasonable suspicion that knocking and announcing their presence under the particular circumstances, would be dangerous and futile or that it would inhibit the effective investigation of the crime by, for example, allowing destruction of evidence
□ No knock warrant--don't have to knock and announce
□ Don't have one of those warrants--have to knock
□ As an officer, can also establish reasonable suspicion before knocking
® They hear flushing, see people rushing around
® Don't have to knock then...exigent circumstances



--Emergency Exception
Standard: The standard to be met by executing officers before exigency is recognized as an exception is "reasonable suspicion" standard.
"In order to justify a 'no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous and futile, or that it would inhibit the effective investigation of the crime by, for example, allowing destruction of evidence.
Officers have to knock and announce their presence before entering a house to serve a warrant but there are exceptions (established by court decisions and state law.)
Permissible exceptions include:
---When announcing presents a strong threat of violence or danger to the officers
--Danger that contraband or other property sought might be destroyed
--Persons within the premises are in imminent peril of bodily harm
--Engaged in process of destroying evidence or escaping because aware of police presence
--When person to be arrested is in process of committing a crime



--Hudson v. Michigan 547 U.S. 586 (2006):
A violation of the knock and announce rule does not require suppression of evidence found in a search.
Exclusion may not be premised on the mere fact that a constitutional violation was a "but-for" cause of obtaining the evidence. The illegal entry here was not the but-for cause, but even if it were, but-for causation can be too attenuated to justify exclusion.
Class Notes:
○ Balancing of interests in knock and announce rule
§ Governmental investigation of crime vs. reasonable expectation of privacy
§ Such that we want to protect our officers and keep them safe because we do allow people to protect their premises
§ Not justified in using deadly force because put on notice when officer's
§ A violation of the knock and announce rule does not require suppression of evidence found in a search
§ Exclusion may not be premised on the mere fact that a constitutional violation was a but for cause of obtaining the evidence. The illegal entry here was not the but-for cause, but even if it were, but-for causation can be too attenuated to justify exclusion
§ Exclusionary rule not applicable for violation of knock and announce rule


--Forcible Entry After Knocking and Announcing
United States v. Banks 520 U.S. 385 (1997) (2003)
Police officers may forcibly enter the premises fifteen to twenty seconds after they knock and announce their presence if there is an exigency of possible destruction of evidence.
Reasonableness of wait time - deference given to facts as known to the police
In this case a police officer knocked on the door, which prompted the destruction of evidence. The officer then entered the home under the exigent circumstances doctrine, without a warrant. The Court held that "the conduct of the police prior to their entry into the apartment was entirely lawful."
The Court found that the "exigent circumstances rule . . . . [does] apply in the case at hand [even though] the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence."


The Court held that where police do not violate the Fourth Amendment (or threaten a violation) in their preceding conduct, warrantless entry of a home to prevent destruction of evidence is reasonable and therefore permissible under the Fourth Amendment.
The court indicated that although preventing the destruction of evidence is within the scope of the "exigent circumstances" exception to the Fourth Amendment warrant requirement, police-created exigencies do not justify a warrantless search.



The Court held, however, that "reasonableness" - not the tests elaborated by Kentucky's Supreme Court and other lower courts - is the standard for determining whether the police-created exigencies doctrine is applicable.
Stating that "the Fourth Amendment requires only that the steps preceding the seizure be lawful," the Court held that there was no violation of the Fourth Amendment in the police conduct.
Justice Alito argued that occupants who elect to destroy evidence - rather than refusing entry or electing not to respond - create the exigent circumstances that justify a warrantless search.




Justice Ginsburg dissented, arguing that the Court had reduced the Fourth Amendment's force by providing officers with a way to dishonor the warrant requirement.
She stated, "[t]he Court today arms the police with a way routinely to dishonor the Fourth Amendment's warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant. I dissent from the Court's reduction of the Fourth Amendment's force."
In United States v Robinson (1973), the Supreme Court addressed questions concerning the scope of the search incident to arrest exception (search of the person of the arrestee and the area within the arrestee's control.)


Searches of the Person Incident to Arrest

The Court held that a valid arrest supplies police officers with the automatic power to neutralize an arrestee in order to
protect against danger to the officer and
destruction of evidence,
(regardless of whether such risks exist on the facts. )

The Court further held that police officers have the automatic right to
conduct a complete body frisk, and
to pull out and search all objects on an arrestee's person,
(even if there is neither a factual risk of harm to the officer nor a risk of destruction of evidence.)



Class Notes:
○ How do we take search incident to lawful arrest to the next step? What does Robinson's give us that helps us determine the scope of the authority to search?
○ If looking at containers
§ How does Robinson describe container? And what can you do if container within grab area?
□ Object capable of holding another object
□ Believe of criminal activity
□ Reasonable suspicion
○ Arrested in car; got out of car
○ Why is Robinson considered part of person
§ If something closely connected to your body is searched...it goes under person automatically
□ Jacked close to body
□ Jacket within immediate control
○ We can search containers in which there is reasonable suspicion that criminal activity is taking place.
§ How did they have reasonable suspicion?
□ Reasonable suspicion of container is based on reasonable suspicion that thing within the container is criminal (e.g. cigarette pack)
○ What is the scope of this search? That's what this hinges on
§ You cannot prod or push; officer had to have reasonable suspicion based on touch
□ Can search container if believe criminal activity; but have to know with reasonable certainty there is criminal activity
□ Why would crumpled cigarette make reasonable suspicion criminal activity?
® Yes, pills; can feel without prodding and pushing
§ Lawfully able to search; automatic right.


Searches of the Person Incident to Arrest
§ The court further held that police officers have the automatic right to
□ Conduct a complete body frisk, and (not prod, frisk)
□ To pull out and search all objects on an arrestee's person
® (even if there is neither a factual risk of harm to the officer nor a risk of destruction of evidence)


e.g. police arrest you and stick hand down bra
Argue: invasion of privacy; not just you can do anything