Questions and comments for review, August 27-November 10, 2009
● What protections does the 4th Amendment offer?
–probable cause, a minimal evidentiary standard as to the target, thereby protecting the rest of the world by exclusion from search
–specificity, particularly describing the place to be searched, and particularly describing the thing sought. Again, the particularity requirement protects all others not included in the description of the place to be searched. The particularity requirement also limits the scope of the search.
If officers are searching for a canary’s corpse, they can search a cupboard, but not a locket. If they are looking for an adolescent hippopotamus, they can search the living room or the garage but not the microwave oven. United States v. Evans, 92 F.3d 540 (7th Cir. 1996), cert. denied, 519 U.S. 1020 (1996).
● What two key interests of the people does the Fourth Amendment serve to protect?
● Prior to Katz, what was the traditional analysis for an alleged violation of the Fourth Amendment?
● What is “curtilage?”
● Specifically, what doctrine or concept did the holding in Katz reject?
● What must a defendant show to raise a prima facie claim of a Fourth Amendment violation?
● What is the obvious criticism of the privacy analysis?
_____________________________________________________
The 2-prong test of Katz is merely the first step in the suppression analysis.
● What are the next two questions?
● Which test, the trespass standard or the Katz standard, is easier to apply?
● What if officers pass a locked gate and see a no-trespassing sign, walk a mile up the path and find a marijuana field? Search or non-search?
–Was there a subjective privacy expectation?
–Would society recognize the expectation as reasonable?
● You are the marijuana farmer’s attorney. What argument do you make for the subjective, actual expectation of privacy?
This is the Oliver case. Is there a stronger argument under the trespass doctrine or under Katz that a search had occurred?
● If the police may enter onto open fields, does that mean that the police may enter upon and search all areas on, for example, a farm?
● Does one have an expectation of privacy in what can be seen from the air?
● What does O’Connor have to say in her concurrence in Florida v. Riley?
● Do I have an expectation of privacy in my trash?
● If I shred my trash, mix in coffee grounds, spray it with Febreze, wrap it in black garbage bags and aluminum foil and then place it in a sealed garbage can, do I have an expectation of privacy?
● Haven’t I satisfied the Katz test? Or have I assumed the risk that the trash collectors will sift my trash for whatever treasures they may find there?
● In Bond, what risk did the defendant assume?
● How do the police know when the container with the bumper beeper is inside a private place?
● How could the police know where the bumper beeper would go or who occupies the target location, and consequently, how could the police obtain a warrant for that unknown destination?
On p. 67, column 1, the Court concedes result-oriented jurisprudence. The Court doesn’t want certain types of searches to be out of bounds for law enforcement, and so the Court finds them not be to searches. Wouldn’t it be more honest to say that certain kinds of activities are searches, and then find them to be reasonable?
● Your cell phone can be used to track your location fairly accurately. Should the government need a warrant to obtain the tracking information?
_____________________________________________________
● In the Walter case on p. 78, how does the Court distinguish the police right to possess the films from the police ability to view the films?
● Did the officer in Jacobsen exceed the scope of the private search?
● Why wasn’t the agent’s field test fatal? Didn’t it exceed the scope of the private search? Just because someone has interfered with the privacy expectation, why does that mean that the privacy expectation has been surrendered with respect to police as well? Is that a valid premise?
● Which clause gets priority in the Johnson case?
● What presumption results from the holding in that case?
The Johnson case turns our focus away from the initial analysis of the semester, that is, simply defining when a search occurs. First we saw that if there was no trespass, there was no search. Then, with Katz, we looked at the question of reasonable expectation of privacy. We also saw that even if a search occurred, that didn’t mean that the evidence would automatically be suppressed; the question remains of whether the police complied with the 4th Amendment. So now we shift our focus to situations in which searches clearly did occur and whether or not the 4th Amendment was satisfied.
● What does “probable cause” mean?
For many years, the Supreme Court adhered to a two-part test for evaluating probable cause based on an informant's statement, known as the Aguilar-Spinelli test. Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1969). Under this test, the magistrate would first have to find that the source of information was credible (the veracity and reliability prong). The magistrate would next examine the basis of the information (the basis of knowledge prong). At least three states, Massachusetts, New York, and Tennessee, have rejected the Gates rationale and have retained the two-prong Aguilar-Spinelli test on independent state law grounds.
_____________________________________________________
● Can the Aguilar-Spinelli veracity prong be bolstered by extensive detail?
● Can the defective knowledge prong be remedied by corroboration?
● Does the preclusion against crossing prongs always make sense? Is there a situation where probable cause might be established only by the veracity (truthfulness) prong? Suppose the officer relates information that provides probable cause, but the officer leaves out any meaningful information about how the information was acquired, but the person’s truthfulness is unassailable? If the track record of the informant is so good, or the informant is a solid citizen, wouldn’t that give rise to probable cause?
● Could the Gates Court have found probable cause under the Spinelli test?
Wasn’t the type of detail offered in the affidavit enough to make up for the weak knowledge prong? What about the veracity prong?
Justice Stevens’ complete dissent is not in the book. He suggested that the Gates’ route was also indicative of a trip to Disney World, Sea World and Circus World. Stevens said that the Gates’ action was just as consistent with a family vacation as a drug run.
● Suppose that Justice Stevens is right. Does that negate probable cause?
● Does Gates actually dilute the standard for probable cause?
_____________________________________________________
● How would Massachusetts v. Upton have been decided under the Aguilar-Spinelli test?
● What is the basis for knowledge? Was her information based on hearsay, or did the informant claim to have seen the stolen items?
● In Maryland v. Pringle, what was the basis for detaining Pringle, the front seat passenger, and his companions?
● What was the basis for the search?
● The Court used these phrases: “any or all three” and “solely or jointly.” What does that suggest to you in terms of probable cause calculations?
● The Maryland court relied on Ybarra v. Illinois. How did the Supreme Court in Pringle avoid applying Ybarra?
_____________________________________________________
● Why is Devenpeck v. Alford, an arrest case, significant to the question of probable cause?
● Could a subpoena, instead of a search warrant, have been used in Zurcher to obtain the documents?
● Why was the warrant claimed to be unreasonable in this case?
● Why was Zurcher a civil case rather than a criminal case?
● Why did the plaintiffs have to file a civil case in Zurcher, rather than wait for a suppression motion in the criminal case?
Justice White’s majority opinion in Zurcher declines to give any special First Amendment grounds in the context of searches of the newspaper records. He states that the search warrant itself is specific and does not give the police any right to ferret through the entire files of the newspaper at will.
● Is this a valid assertion? Are the police limited by the warrant in Zurcher?
If the police are looking for the negatives of the assault, where will the police be able to search? Remember the quote about the canary’s corpse and the adolescent hippopotamus?
● Prior to Warden v. Hayden, could the police have conducted this type of search in Zurcher at all? Why not? What rule would have applied?
● What did the search warrant in Andresen v. Maryland authorize the police to look for? See Footnote A on p. 140.
● If you were the Can-Do defense attorney in this case, what argument would you make to attack this warrant?
The Supreme Court stated in Grubbs: “Anticipatory warrants are, therefore, no different in principle from ordinary warrants. They require the magistrate to determine that it is now probable that contraband, evidence of a crime, or a fugitive will be on the described premises when the warrant is executed.”
● What does the defense attorney argue in favor of suppressing the drugs seized during the execution of an anticipatory warrant? How might the availability of anticipatory warrants backfire on the police?
_____________________________________________________
● Does the magistrate who reviews an application for a search warrant need to have legal training?
● Can police go shopping for a friendly judge?
● Should I advise police to judge shop?
● What is the holding in Richards v. Wisconsin concerning no-knock warrants for drug searches?
● What kind of argument would a Can-Do police officer or prosecutor make in favor of obtaining judicial authorization for a no-knock warrant?
The Court acknowledged that drug dealers might well store their drugs near a toilet or drain, and one factor to consider was the time that it would take for a suspect to get to a drain and dispose of evidence. Another factor to weigh is whether there is a necessity to actually break in and cause damage to property. United States v. Banks, 540 U.S. 31 (2003). The reasonableness of the wait time will vary with the type and size of dwelling, and even the crime under investigation. When seeking to arrest or enter the residence of a drug dealer, an officer may “reasonably infer refusal [to enter] more readily than under other circumstances.” United States v. Bonner, 874 F.2d 822 (D.C. Cir. 1989). If officers hear or see signs that the suspect is trying to escape or destroy evidence, the wait requirement is waived. United States v. Gillaum, 372 F.3d 848 (7th Cir.) (officers heard footsteps running away from the front door), cert. denied, 543 U.S. 969 (2004). Even without a no-knock warrant, the wait time may also be shorter if officers are placed at risk. United States v. Crippen, 371 F.3d 842 (D.C. Cir.) (information that suspect had rocket launcher created exigency and entry four seconds after knocking and announcing was justified), cert. denied, 543 U.S. 970 (2004).
Officers can trick suspects into letting the officers into the home. One effective method is to knock on the door while announcing “Federal Express” or the name of some other delivery service. Most criminals will respond eagerly to a pizza delivery. It helps to order a pizza prior to the warrant execution. (The officers, not the criminals, should enjoy the pizza.) Officers may pretend to be a United States postal carrier. Courts have even approved novel tactics such as luring an occupant outside by setting off his car alarm. An officer convinced one person to open the door by knocking and announcing that the officer had just accidentally struck the occupant’s car. One creative officer successfully lured an occupant to the door by pretending to be a prostitute’s customer. Criales v. United States, 621 A.2d 374 (D.C. Ct. App. 1993).
Both statutes and the common law give authority to arrest for a misdemeanor committed in the officer’s presence. United States v. Watson, 423 U.S. 411 (1976) (recognizing “the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence”). The common-law power of a peace officer to make a warrantless arrest for an offense committed in the officer’s presence dates to the Magna Carta, or perhaps as early as the Norman Conquest of England.
Common law generally prohibited misdemeanor arrests when the crime was committed outside the officer’s presence. Exceptions were often made when the arrestee posed a danger of harm to others or a likelihood of flight from the jurisdiction. This rule continues in many states today. State v. Hughes, 607 N.W.2d 621 (Wis.) (officer may arrest for misdemeanor committed outside of the officer’s presence for “(1) an arrest made in ‘hot pursuit,’ (2) a threat to safety of a suspect or others, (3) a risk that evidence will be destroyed, and (4) a likelihood that the suspect will flee”), cert. denied, 531 U.S. 856 (2000).
● In the Watson case on p. 169, the text implies that all the events occurred on August 17, 1972. In fact, the arrest operation with the informant at the restaurant occurred six days later after the police received the information. When did the police first have probable cause to believe that Watson was in possession of stolen credit cards? Did the probable cause diminish during the point that probable cause arose and the police arrested him?
● We saw previously in the Johnson case, page 86, that the Court says that the warrant clause enjoys priority and that warrantless searches and seizures are presumptively unreasonable. Did the Court in Watson even consider the reasonableness of the arrest issue?
_____________________________________________________
● How will a person know when she or he has been arrested?
The traditional common law rule of force allowed an officer to use whatever force necessary, including deadly force, to make a felony arrest. The common law rule was modified in many states during the 1960s and 1970s, and in 1985, the United States Supreme Court banned the use of deadly force against a fleeing felon who does not pose an immediate threat to officers or the public. Tennessee v. Garner, 471 U.S. 1 (1985). Deadly force may still be used on some fleeing felons in very limited circumstances. All use of force lawsuits are measured by standards established by the Supreme Court in Graham v. Connor, 490 U.S. 386 (1989). In Graham, the Court instructed lower courts to always ask three questions to measure the constitutionality of a particular use of force. First, what was the severity of the crime that the officer believed the suspect to have committed or to be committing? Second, did the suspect present an immediate threat to the safety of officers or the public? Third, was the suspect actively resisting arrest or attempting to escape? The Supreme Court also stated that the use of force should be measured by what the officer knew at the scene, not by 20/20 hindsight.
● After the arrest, what protections is an arrestee entitled to receive and when is he or she entitled to receive them?
● You have sat in a holding facility for 96 hours before the judge makes a probable cause determination. What remedy do you have? Would that invalidate the arrest?
● Under what circumstances may an officer arrest someone at his home? Is a warrant required?
● Does Payton protect against seizure? Was the principle goal in that case to protect against seizing someone or was the principle goal to protect against a search of the house that occurs during the course of an effort to arrest someone at home?
● Who was the Supreme Court trying to suppress in the Steagald case? Was it trying to protect Lyons, the arrestee, or the third party homeowner?
_____________________________________________________
● On what basis does Terry give an officer the ability to conduct a "stop and frisk?"
● How is it that the Court can come up with reasonable suspicion as a basis for a seizure or for a search? Doesn’t the Constitution require probable cause?
This is a good example of the Court using the reasonableness clause for a tool for the protection of the police. Probable cause is explicitly contained only in the warrant cause. But if the police conduct is otherwise reasonable, arguably the probable cause requirement does not apply. But shouldn’t a finding of reasonableness be necessarily supported by probable cause?
Reconcile Adams v. Williams, Pennsylvania v. Mimms, and Maryland v. Wilson. What balancing act does the Court perform to reach the results in these three cases? Is the Court intellectually consistent?
_____________________________________________________
In Michigan v. Summers, the Court was concerned with preventing flight of someone who may have committed a crime and also concerned, more fundamentally, with the destruction of evidence. And so it reasoned that there is always reasonable suspicion to detain occupants when the police officer has obtained a search warrant for contraband. Now let's go into the home instead. You come with a search warrant. Summers says that whenever there's a search warrant there's reasonable suspicion to detain the occupants of the premises. Reasonable suspicion under Terry authorizes you to make a brief investigative detention. If it's a thorough search and it takes four to five hours is it now just a Terry stop or something else? What is it?
● The plurality in Mendenhall says that a person has been seized only if in view of all the circumstances surrounding the incident a reasonable person would believe that he was not free to leave. Is that still the law? What case built upon the plurality view and created the majority ruling?
● How is Royer distinguishable from Mendenhall. Why did the Court find that a seizure had occurred?
● After reading the Court’s analysis in Bostick, Drayton and Delgado, what is the definition of a seizure of a person?
to Wilson v. Maryland, the Court held that police officers may routinely order passengers out of a car under the theory that the car, and therefore the passenger, was detained anyway. Ordering the passenger out of the car is a minimal additional intrusion. Following that analysis and applying it to the Bostick case and in the Drayton case, when the police officers got onto the bus, didn’t they seize the entire bus? And yet the Court said they did not. How are these cases reconcilable (if, in fact, they can be reconciled)?
_____________________________________________________
● Suppose that an officer says "stop, you may not leave; you're not free to leave." The person knows that she is not free to leave, but she leaves anyway. Is there a seizure?
● What does Hodari say under these circumstances if she flees? (Proverbs 28:1)
● What does Alabama v. White say about establishing reasonable suspicion following an anonymous tip?
● In Alabama v. White, the Supreme Court found reasonable suspicion based upon an anonymous tip. What was the difference between White and Florida v. J.L.?
Following the Supreme Court’s lead in Florida v. J.L., several courts have ruled that a report of a bomb will afford officers greater freedom to detain and frisk than a report of a concealed gun, particularly in schools, airports, and other vulnerable areas. Cuesta v. School Board of Miami-Dade County, 285 F.3d 962 (11th Cir. 2002) (violent drawings accompanied by threatening words were sufficient to create reasonable suspicion to detain student); Williams v. Cambridge Board of Educ., 186 F. Supp. 2d 808 (S.D. Ohio 2002), aff’d, 370 F.3d 560 (6th Cir. 2004) (finding probable cause for detention of students who told other students that they were considering bringing guns and bombs to school); Stockton v. City of Freeport, 147 F. Supp. 2d 642 (S.D. Tex. 2001) (discovery of threatening letter on school property justified detention of suspected students), aff’d, 37 Fed. Appx. 712 (5th Cir.), cert. denied, 537 U.S. 1030 (2002). One hapless drug smuggler carried an electronic scale next to his drugs in his carry-on luggage. When a screening agent became concerned that the electronic device might be connected to a bomb, the bag was searched and methamphetamine was found. The court found the detention and search to be reasonable. In this time of rampant terrorism, "an individual who enters an airport security area may be searched even on a mere suspicion of possible illegal activity." State v. Crisanti, 470 S.E.2d 314 (Ga. App. 1996). Another court has noted that merely fitting the profile of a terrorist is sufficient grounds for detention at an airport. United States v. Lopez-Pages, 767 F.2d 776 (11th Cir. 1985). Threats of chemical or biological exposure may also lead to reasonable suspicion. A pharmacist with access to chemicals and drugs who was a member of an animal rights activist group sent a suspicious-looking letter to a university. When a university employee opened the letter, she and others present immediately felt a burning sensation in their throats. This event happened during the wave of national anthrax-related incidents and shortly after other animal-rights-activist terrorist attacks at the same university. The court found that these circumstances created reasonable suspicion to forcibly detain those present when the envelope was opened. Allison v. Michigan State University, 2005 WL 2123852 (W.D. Mich. 2005).
● How does Cortez define reasonable suspicion?
● Is this a case of "I don’t know what the totality of circumstances produces, but I know it when I see it"?
Take a look at 237 again and search for the two elements of reasonable suspicion.
● What's the one-liner conclusion from Arvizu?
______________________________________________________
Should the Terry doctrine also apply where there's been a completed crime and the only question is did the suspect commit the older crime. Consider the Hensley case. Is there anything about Terry that suggests it is limited to ongoing criminal activity?
May a police officer properly consider race in the reasonable suspicion analysis?
May a police officer properly use a profile to develop reasonable suspicion?
How does Dickerson limit the scope of a Terry search?
In what way did the police officer in Dickerson exceed the proper scope of a Terry search?
How did the Court has stay true to Terry ins the Ybarra v. Illinois case?
Royer illustrates a potential downside to a Terry stop. What risk does an officer face under Terry as illustrated by Royer?
At what point does a temporary detention become a full-scale arrest if you look at factors other than least drastic means approach that the Court adopted in Royer? If you look at this more from the standpoint of timing, how much time is required before the Terry stop will become a full-scale arrest? Remember the Davis v. Mississippi case where the Court struck down a prolonged detention and transportation of the defendant to the station house for fingerprinting based only reasonable suspicion.
Can you take a DNA sample on a Terry stop? Why or why not?
______________________________________________________
Consider evidentiary searches based on less than probable cause. Terry, of course, concerned a protective search. It wasn't really couched by the Court as a search for evidence; it was a protective search. That begs the question of whether Terry may also be relied upon by the police officer to conduct a limited search for evidence based upon reasonable suspicion.
Did the Court permit a limited search for evidence based upon reasonable suspicion in Hicks?
To what degree has the Chimel case removed any incentive to arrest someone at home?
To what degree does Chimel restrict a police officer?
In Davis v. Robbs, the defendant was removed from the area and the Court still approved the search incident to the arrest. The grab area may be measured from the time of the arrest even if the police officer has removed the defendant to another location.
What is the justification for this search incident to arrest doctrine (pre-Gant)?
Upon scrutiny, does that rationale hold up under analysis?
How does Washington v. Chrisman expand the area that a police officer may search incident to the arrest?
In Rawlings, the Court said it is not ordinarily concerned if a search precedes a formal arrest so long as the arrest itself is supported by probable cause. The Court would be content if the search is more or less contemporaneous with the arrest provided that the police did have valid probable cause for the arrest itself independent of any evidence recovered during the search itself.
What danger does this approach create? Suppose the officer searches before the arrest. And finds nothing. What is the problem?
What's the issue in Robinson?
Remember the dual rationale underlying the Chimel decision. In view of that rationale, what outcome does Chimel suggest is appropriate in the Robinson case? Doesn’t Chimel seems to suggest that the evidence in Robinson should be suppressed because it violates the Chimel rationale. Why does the Court sustain the search.
Would the result in Robinson be the same with today’s Supreme Court, in light of the recent Gant decision?
Reconcile the Chadwick case with the Edwards case. In Edwards, the Supreme Court sustained under the SIA doctrine a search of clothing the morning after the defendant had been arrested.
_________________________________________________
In Maryland v. Buie, did the Court follow Chimel's spatial limitations? How so?
Suppose that an individual is walking towards the car when he's arrested. Would Belton/Thornton apply and allow a search of the car?
On what basis did the police officer stop the car in Whren?
Would the defendants have prevailed in their motion under prior Supreme Court precedent before Whren? The quick way to answer this is to read the decisions cited by the Supreme Court in Whren.
What is the three-prong test established in Coolidge to evaluate a plain view seizure?
How did the Horton case modify the Coolidge factors?
_________________________________________________
Despite the various exceptions that we covered in the first half of the semester, prior to 1971, the Supreme Court emphasized that the warrant clause enjoys priority and that a warrantless search is presumptively unreasonable. Eventually, however, the Supreme Court and lower courts moved away from enforcing the presumption. In United States v. Carroll, the Court established the Carroll doctrine, a broad category of the so-called emergency searches that happened to arise in the context of an automobile. As you consider emergency searches, always stop to distinguish between the SIA and the emergency search. If you're talking about an SIA, search incident to arrest, that simply requires probable cause to believe that the person being arrested committed a crime. By comparison, if you're talking about a car search, you don't need probable cause to believe that the occupant of the vehicle committed a crime, but you do need probable cause to believe that the car contains evidence of criminal activity.
Why is the emergency search doctrine set off separately from automobile searches?
At one point, emergency searches were a broad category of which the automobile searches were a subset. That is no longer the case.
What factors do you think needs to be present to justify a search as an emergency?
How does Welsh v. Wisconsin illustrate the application of some of these factors?
The early automobile search cases focused on the car's potential mobility and emphasized the concept of an ongoing emergency. The later cases de-emphasized the emergency concept. What rationale did the Court begin to use?
Why doesn't Chambers v. Maroney qualify as a search incident to arrest?
The only case in which the Court has rejected in an emergency-based argument was Coolidge v. New Hampshire. Why?
How would a Can-Do defender distinguish Chambers from Chadwick?
What was searched in Chambers?
What was searched in Chadwick?
The Chadwick case exemplifies the distinction between the warrant clause and the reasonableness clause. If you apply the reasonableness clause, what the agents did in Chadwick really wasn't unreasonable. But if you say the warrant clause gets priority, that basically means that a warrantless search is per se unreasonable or presumptively unreasonable, and in view of that presumption, it dictates the outcome in this case, that the search is going to be set aside. To reconcile these two cases, distinguish between searches of cars and searches of containers taken from cars. Look to the source of the probable cause!
In Acevedo, the Court set out to reconcile its anomalous rules in which under comparable circumstances, the police could stop the car and conduct a warrantless search of its containers but could not conduct a warrantless search of a container seized from a car. However, Acevedo itself creates certain anomalies and presents some mistaken analysis which the dissenting opinion points out. The first problem is a container should lose the protections of a search warrant as soon as it's placed in car? In other words, if you're walking down the street with a container – briefcase, suitcase, whatever it might be – the warrant clause applies. However, under Acevedo, the moment you enter a car, the moment you take that container and place it in a car, it loses the presumption of protection with the Fourth Amendment warrant clause as previously interpreted to give to it.
________________________________________________
Illinois v. McArthur follows upon the theme that the availability of certain procedures to the police makes it more difficult for them to argue that a true emergency existed. Consider, for example, the availability of anticipatory warrants. It makes it hard for police to argue that they had to act very quickly since they could foresee certain events happening and could've gotten a warrant in advance of those events. Likewise, the availability of telephonic warrants, of e-mail warrants, makes it more difficult for the police to make that type of argument.
What could the police have done in Illinois v. McArthur that would have been a more drastic intrusion and, nevertheless, still deemed reasonable under the Fourth Amendment?
In theory, administrative searches are supposed to be conducted in a fashion that does not give police officers or public officials discretion. The first time that the Court considered an administrative search, they did so in the context of a case in which the Court said that a warrant is required, in Camara v. Municipal Court.
Why does the probable cause requirement make no sense as applied to a safety inspection search?
In the administrative search, what does the Court accept as satisfying the conventional probable cause requirement?
