• Reading #2 (CB 86-92, 95-103, Materials 17-24)

• Katz v. United States

• (Eavesdropping is permissible unless physical invasion of a constitutionally
protected area produced the challenged evidence.)
• Katz was recorded while making a phone call in a public phone booth. Debate over
whether that should have triggered the 4th amendment
• Phrase the question as whether a phone booth is a constitutionally protected
area or whether a constitutionally protected area must be physically penetrated in
order to violate the 4th amendment. Court ignores these questions.
• SCOTUS says issue is not whether phone booth is constitutionally protected, but
whether the person is. The 4th amendment is concerned with persons and not
places.
• Also doesn’t matter that the phone booth was made from glass and you could
see inside. The question here is of talk not sight.
• Not necessary for physical seizure with a change in technology (overturns
Olmsted and Goldman.
• Harlan (concurring)
• Agrees the 4th protects people, but says that must be viewed in terms of place
(two part test: person have exhibited an actual expectation of privacy [this must
be subjectively manifested] and that the expectation be that society is prepared
to recognize as reasonable)
• Black (dissenting)
• Disagrees that wiretapping is a search or seizure. Words of amendment don’t
line up with wiretapping and we shouldn’t reinterpret the amendment.
• claims that while wiretapping was unknown eavesdropping was and so it is
telling eavesdropping was not mentioned in the amendment
• United States v. White
• (Using stuff from a wire doesn’t require the 4th amendment).
• Gov. agents related conversations from someone carrying a wire. Couldn’t bring in
Jackson who was wearing the wire and so instead government agents recount the
recordings themselves.
• The case differs from Katz because here one of the sides of the conversation is
consenting and that was not protected by Katz.
• Hoffa v. US held that, no matter the level of trust, an individuals conversations with
a government agent are not protected by the 4th amendment. this holds as long as
• the agent simultaneously records the conversations
• the agent simultaneously transmits the conversations
• Douglas (dissenting)
• claims eavesdropping was of a different kind and we will lose huge amounts of
privacy if we don’t stick entirely with Katz.
• Harlan (dissenting)
• claims there is a difference when a third unknown person is listening to the
conversation, ruins the idea of conversation, and the higher degree of accuracy
would change conversation
• Rewolinski Case
 • Deaf man made call from police phone to his wife. She stated she was scared of
him. Officer took the phone transcript and later it was used for evidence to charge
1st degree murder.
• Claim that no one can expect privacy when using police phones. (note that there
were no public phones for the deaf at the station)
• Colb Article Excerpts
• The fact that our friends can betray us without legal consequence, however, does
not ultimately support the Court's approach to undercover friendships. To see
exactly what the pretend friend cases reveal about the Court's philosophy of
privacy, it is useful to compare them with Katz.
• Katz and White appear to be inconsistent with each other. If it invades an
individual's privacy for police to tape a telephone conversation between him and
another person, why should police be allowed to pretend to be that other person
and tape a telephone conversation between the trusting individual and the
deceptive officer? If anything, the latter might seem like the more profound invasion
of privacy.
• Notice that in Katz the defendant did not misplace his trust,but he did in White.
• The Court viewed betrayal as an expected (if reprehensible) behavior among
human beings, much like rummaging, trespass, and following people around.
Whereas wiretapping is not.
• This disparity, however, between those who have and those who lack a sixth sense
for traitors, ought not to dictate expectations of privacy, for two separate reasons.
• First, the "traitor detector" is analogous to the person whose home has an
effective alarm system (or a watchdog). The intending burglar who comes to the
door might decide to go elsewhere when the alarm goes off or the dog begins to
bark, choosing instead to burglarize the house of a neighbor whose lock can be
picked without setting off either a mechanical or a canine response. Vulnerability
does not translate to an invitation to break in. It similarly should not do so in the
context of friendship.
• There is a second problem with a doctrine that guarantees privacy only to those
who can detect faithless friends, even taken at face value. The Court might
correctly observe that in the hypothetical state of nature, where the government
is temporarily left out of the equation, trusting a person and sharing secrets with
her risks betrayal. The person you trust can repeat everything you tell her or
unfairly exploit that information. By allowing the police to send out pretend
friends, however, the Court does more than simply mimic the sorts of betrayals
that would inevitably occur from time to time in the real world of friendship. By
planting moles in our midst, the government deliberately manipulates reality to
create relationships for the sole purpose of betrayal.
• If the government makes contact with an informant, whether the latter is known to
the target or not, then any subsequent state-directed spying ought to count as a
search. This is because the friend is a traitor before the government enters the
picture.


 Reading #3 (CB 112b-116, notes 4 and 5), Supp. 1t, CB 117-130, 131-33 (note 5)
• “Limited Capabilities” and Searches
• US v. Place (allowed canine searches w/out 4th amendment because it is a less
intrusive method of searching)
• “Governmental conduct that only reveals the possession of contraband
“compromises no legitimate privacy interest.” This is because the expectation
that certain facts will not come to the attention of the authorities is not the same
as an interest in “privacy that society is prepared to consider reasonable.”
• Dissent raised the issue of the dog not being infallible. That is if the dog is wrong
you open up someone’s luggage when there were no drugs.
• Open Field Doctrine
• police entry of an open field does not implicate the fourth amendment (Hester v.
United States).
• open field = may include any unoccupied or undeveloped area outside of the
curtilage of a home (so a forest is as much an open field as a field is). Fields
aren’t persons, houses, papers, or effects.
• e.g. law officers w/out warrant or probable cause ignored no trespassing signs
and found marijuana fields, not protected by 4th (Oliver v. US)
• “the rule of Hester v. United States…may be understood as providing that an
individual may not legitimately demand privacy for activities conducted out of
doors in field, except in the area immediately surrounding the home.”
• (Dissent)
• fields are presumed accessible to the public unless the owner manifests his
intention to exclude them, but at that point citizens aren’t allowed on the land, so
shouldn’t officers be forbidden as well?
• Curtilage
• Oliver court gave a four part test: (1)the proximity of the area claimed to be
curtilage to the home, (2) whether the area is included within an enclosure
surrounding the home, (3) the nature of the uses to which the area is put, (4) and
the steps taken by the resident to protect the area from observation by people
passing by.
• Dunn, wanted a case by case determination to differentiate curtilage from an open
field
• Aerial Surveillance
• does not follow from the fact that an area is identified as curtilage that police
surveillance of it inevitably constitutes a fourth amendment search
• California v. Ciraolo
• told marijuana growing in yard, couldn’t see it over fence, got a plane, took
pictures, got warrant, issue was whether the aerial surveillance could be used
for a warrant (ie whether the fly over was a search)
• declared it not to be a search: decided fence clearly was there to prevent
people from seeing the marijuana, but claimed the fence couldn’t prevent
people who were high up from seeing the marijuana, which cast doubt on all
observers not being able to see the plants, court claimed anyone could have
seen what the officers did and so not reasonable to claim it was protected.
• (dissent)
 • explains that opinion is based on the idea that airspace is public domain.
don’t need physical trespass for 4th amendment (katz), significant because
eventually people will be able to see through house walls. yard was part of
the curtilage, so this was an area protected by the 4th amendment (oliver).
seems like we have met Kurtz test?
• only way this can’t be the case is if we rely on the fact that members of the
public fly over and can look down into homes.
• this is flawed cause commercial aircraft are at 35k feet, and even if
lower they are passing and anonymous. no one builds roof over
backyard, and so no one is “knowingly exposes” their yard when they
build a fence.
• basic idea is to differentiate different kinds of flight (commercial v.
observational)
• Florida v. Riley
• same deal, observed partially covered greenhouse from a helicopter, decided
Ciraolo controlled the case, add that it doesn’t matter what height aircraft is at,
unless it is contrary to law or regulation (and no “intimate details connected with
the use of the home or curtilage were observed”)
• Katz and New Technology
• Kyllo v. United States
• Issue:
• Does thermal imaging device aimed at a private home from a public street to
detect relative amounts of heat within the home?
• Facts:
• Agent suspected Kyllo of growing marijuana inside his house (Kyllo’s), used
infared to detect high intensity lamps, scanned house from road, and then
based on thermal imaging, utility bills, tips from neighboors a warrant was
issued, 100 plants found
• Discussion
• Can’t search house without warrant, this was clearly a house, so the question
is whether there was an unreasonable search
• don’t need physical trespass anymore for a search (Katz, protected cause
he reasonably justifiably relied on his privacy, a privacy society considered
reasonable [“search occurs when the government violates a subjective
expectation of privacy that society recognizes as reasonable]), but just
looking isn’t necessarily at a search either (Cirallo)
• Katz test isn’t that precise, but a home is clearly reasonably held to be
private, withdrawing this protection would neuter the 4th amendment.
• “we think that obtaining by sense-enhancing technology any information
regarding the interior the home that could not otherwise have been obtained
without physical intrusion into a constitutionally protected area constitutes a
search” at least where the technology is not in general public use (such as
thermal scanner)
• Gov Claims
 • government claimed it was only looking at heat from the external surface of
the house, this is dumb cause this how a microphone or satellite would work
too
• government claims that it did not detect private activities occurring in private
areas. this standard applied when considering an industrial complex, not a
home, which is sacrosanct “in the home, our cases show, all details are
intimate details”
• also impractical to limit something to intimate details
• 4 part test for future technology
• obtaining (1) by sense-enhancing technology, (2) any information regarding
the interior of the home, (3) that could not otherwise have been obtained
without physical intrusion into a constitutionally protected area, (4)
technology is not in general public use
• Dissent
• don’t want to judge based on future technology, thermal imaging results are
pretty vague and unrevealing
• claim heat can be noticed by a passerby with ordinary senses (e.g. rain
evaporating, vents, etc.)
• not recognized by society as reasonable that heat waves could be kept
private
• also gets us back to the Katz test of police averting their eyes
• thermal images only reveal the outside of the house, did not obtain any
information regarding the interior of the home
• Problem’s with majority’s test
• strange that test considers general public use, what is general public use,
also suggests a growing lack of privacy (as more technology becomes
general public use)
• sense enhancing technology seems too broad (e.g. drug dogs, which were
exempted)
• focuses too much on the home (see Katz, where there was protection in a
phone booth)
• The Beeper Cases
• Smith v. Maryland
• police requested a pen register, a “device that only records number dialed”
record numbers from Smith’s house, this was installed outside the home and
obtained information from inside the home
• The Court held that Fourth Amendment protections are only relevant if the
individual believes that the government has infringed on the individual’s
reasonable expectation of privacy. This reasonable expectation of privacy
does not apply to the numbers recorded by a pen register because those
numbers are used in the regular conduct of the phone company’s business,
a fact of which individuals are aware. Because the Fourth Amendment does
not apply to information that is voluntarily given to third parties, the
telephone numbers that are regularly and voluntarily provided to telephone
companies by their customers do not gain Fourth Amendment protections.
• US v. Knotts (used a “beeper” [tracking device] to follow a defendant, by
placing beeper in a barrel he purchased, got warrant based off beeper)
• court claimed when you are in a car on public thoroughfares you have no
reasonable expectation of privacy
• doesn’t matter cops didn’t just usual visual surveillance, “nothing in the
fourth amendments prohibited the police from augmenting the sensory
faculties bestowed upon them at birth”
• beeper not used once it reached the home, ie once it left public roads
• US v. Karo
• used beeper not just on public roads, but in houses
• the court held that the warranties monitoring of a beeper in a private
residence, a location not open to visual surveillance, violates the fourth
amendment rights of those who have a justifiable interest in the privacy of
the residence
• the government employed an electronic device to obtain information that it
could not have obtained by observation from outside the curtilage of the
house
Reading #4 (CB 133-46, Jones Column Parts 1&2, Supp 1-14, CB 149-50), 391-96,
Jardines Column)
• United States v. Jones
• Issue
• Whether the attachment of a GPS device to a vehicle and use of that device
constitutes a search or seizure.
• Facts
• Jones was under investigation by a FBI and Police task force. There was video
surveillance by a camera focused on the front door of the club, a pen register,
and wiretap on Jones’ phone.
• Got warrant to put GPS on car of Jones’ wife within 10 days and in DC. They put
it on in 11 days and in Maryland. Used it for 28 days. Could know position within
50 to 100 feet.
• Jones motioned to suppress evidence attached to GPS. District Court granted in
part suppressing the evidence gained while the jeep was parked in the garage
next to Jones’ house. Held rest admissible “a person traveling in an automobile
on public thoroughfares has no reasonable expectation of privacy in his
movements from one place to another.” Appellate court overturned the whole
thing.
• Discussion (majority, Scalia)
• A vehicle is an effect, so is protected by the 4th amendment, and therefore the
GPS was a search.
• the GPS physically occupied private property for purpose of obtaining
information
• Argument over whether Harlan’s standard from Katz (gov. violates a person’s
reasonable expectation of privacy)
• Gov claims Jones had no reasonable expectation of privacy in the underbody
of the jeep and on the roads where the jeep was driven
• Scalia claims we don’t need Harlan test…
• we must ensure preservation of that degree of privacy that existed when the
4th amendment was adopted
• Katz established that property right are not the sole measure of 4th
amendment violations but did not snuff out the previously recognized
protection for property (Soldal v. Cook County)
• physical intrusion can still violate 4th
• Gov tries to use beeper cases (see last reading)
• Scalia points out that Katz test was needed there because basic effects hadn’t
been violated, but here they have so we can just use the language of the 4th
• Jones had the jeep and the tracker was later attached, tracker already
attached to property before passed to parties in the other cases (seems like
same logic as informant cases, just get consent then pass it down the line)
• Gov tries to use open field cases
• Oliver, not necessarily a search with trespass (open field case)
• Scalia reiterates that an open field is not one of the things protected by the 4th
amendment
• Addressing the concurrence
 • Disagrees with just applying the Katz test, wants the Katz test stacked on top
of whats already in the 4th
• Just using the Katz test would be even less clear
• Concurrence (Sotomayor)
• Points out the problem that might arising by investigators just using already
installed GPS systems, having these systems already installed will shift the
societal privacy expectations and therefore effect the Katz test
• Problems with how cheap GPS monitoring is and that the data can be stored
and alter recalled
• wants to rethink premiss that an individual has no reasonable expectation of
privacy in information voluntarily disclosed to third parties
• Concurrence (Alito)
• Scalia standard is old-fashioned way of approaching this case
• want to use Katz test (“asking whether respondent’s reasonable expectations
of privacy were violated by the longterm monitoring of the movements of the
vehicle he drove”)
• proof of outdated method
• not clear that the attachment of the GPS itself was a search, basically this is
the same problem as the courts old wiretapping approach
• Other problems
• importance attached to the wrong thing, the gps and not the data
• doesn’t cover unmarked cars and aerial assistance following someone
• court ruling wouldn’t apply if the GPS was already attached to the car
• which makes it tricky with the wife’s car in some states
• ruling struggles with electronic as opposed to physical search
• Problems with Katz
• reasonable person is hard to determine, both because it changes with time
and seems to vary from person to person
• Jones Columns (Colb article, so you get her case summaries)
• Overview of Katz
• don’t need physical tresspass, just need violation of a “reasonable expectation of
privacy.”
• Overview of other cases
• curtilage, garbage, wire on informant, etc.
• suggest that physical trespass is still critical
• Overview of Knotts
• beeper didn’t violate 4th because people lack reasonable expectation of privacy
in the location of car on public streets
• Jones Opinions
• Scalia:
• the police performed a Fourth Amendment “search” of Antoine Jones because
they attached a GPS tracking device to Jones’s property without his consent,
thereby committing a trespass on his “effects” (one of the protected items listed
in the amendment). Combining that initial trespass with the subsequent
information-gathering that was enabled by the trespass, the Court found that
 the sort of “search” that would have offended the founding generation had
occurred.
• Distinguishes Knotts because in that case police had permission to put in
tracking device and then suspect possessed it
• Scalia differeing when police installed the devices rather than what they
gathered
• Alito:
• What made the police activity in Jones a search, according to Justice Alito, was
not the fact that such monitoring began with a trivial trespass onto the underbelly
of Jones’s vehicle, but instead the fact that it invaded Jones’s reasonable
expectation of privacy against having all of his trips monitored for twenty-eight
days.
• gives hypo to prove it doesn’t matter when monitoring device was applied as
much as that it was applied at all
• Kyllo
• thermal patterns of house
• Scalia overturned even without a trespass because he claimed the evidence
gathered could only have been gathered with trespass if the thermal detection
device had not been used
• Note that the trespass is floor not a ceiling of how Scalia’s reads the 4th
• Florida v. Jardines
• Facts
• police had an unverified tip that a home was being used to grow marijuana, two
detectives and a trained drug dog approached the residence, dog handler went
with dog to front door of the home, dog signaled it detected scent of narcotics,
detective smelled marijuana as well
• detective applied for a search warrant, found marijuana, Jardines moved to
suppress arguing dog’s sniff was impermissible (trial court suppressed, appellate
court reversed)
• Decision
• Is a dog sniff at the front door of a suspected grow house by a trained narcotics
detection dog a Fourth Amendment search?
• Discussion, Majority (Scalia)
• asks the question of whether (1) area was constitutionally protected & (2)
whether there was an unlicensed physical intrusion
• front porch is part of the home (curtilage) and therefore trespass is protected by
the 4th amendment (Katz not a baseline, but an addition)
• ordinary citizens can enter the porch temporarily (e.g. mailmen), but officers
cannot overstay this period (license may be implied from the habits of the
country)
• entering porch without broader license is a search
• that is, there is a scope to license and it does not cover search
• Differentiates Place and Caballes
• those cases allowed canine inspection in airport and car do not violate
reasonable expectation of privacy
 • differentiate this based on where it happened (just like Jones was differentiated
from the beeper cases)
• Discussion,Concurring (Kagan)
• Argued privacy as well as property issues (see Alito v. Scalia in Jones case)
• people have heightened expectations of privacy of their homes and area around
them (curtilage) and dog violated this expectation (device not used in public)
• Discussion, Dissent (Alito)
• wanted basic idea of people approaching door to apply to police officers
collecting evidence
• trespass laws not limited to certain kinds of people (covers even those we
don’t want knocking on our door) so should cover police, doesn’t care that
there was a dog
• police were only there for a minute or two
• claims reasonable person would have expected odors emitting from the house to
be noticed
• California v. Hodari
• Facts
• undercover officers on patrol, pulled up on youths and a car who saw their car
and took flight, officers chased, one officer tackled Hodari. Hodari had cash, a
beeper, and discarded crack cocaine while he was being chased before he was
tackled
• Issue
• whether when drugs were dropped Hodari had been seized, if so then drugs
were fruit of seizure and properly excluded, if not they were lawfully recovered
and should be admitted.
• Discussion, majority (Scalia)
• Seizure does mean taking possession, but arrest does not
• Arrest achieved whether success in subduing the arrestee, grasping or
application of force triggers this
• the officer telling Hodari to halt was a show of authority, does this show of
authority trigger a seizure?
• No, language of 4th only covers physical force
• arrest requires physical force or submission to the assertion of authority (does
nto cover refused show of authority), so even if an arrest is seizure this was
not an arrest
• Discussion, dissent (Marshall)
• chase conveys that one is not free to leave
• disagree with majority basing opinion on when a search occurs on how the
citizen reacts
• leaves room for threatening populace so that search is legal
• Brendlin v. California
• summary of seizure of person cases
• a person is seized by the police and thus entitled to challenge the governments
action under the 4th amendment when the officer by means of physical force
or show of authority, terminates or restrains his freedom of movement, through
means intentionally applied.
 • so need for force, but there is no seizure without submission
• US v. Mendenhall
• a seizure occurs if in view of all of the circumstances surrounding the
incident, a reasonable person would've believed that he was not free to
leave, or would would feel free to decline the officers’ requests or otherwise
terminate the encounter
• passengers not just drivers seized during a traffic stop

Reading #5 (151-171, 174-75, Materials 33-38)
Probable Cause
• A search or seizure conducted in the absence of probable cause is ordinarily
considered an unreasonable one
• Probable cause to arrests exists where the acts and circumstances within the officers
knowledge and of which they have reasonably trustworthy information are sufficient in
themselves to warrant a man of reasonable caution in the belief that an offense has
been or is being committed.
• Probable cause to search exists where the acts and circumstances within the
officers knowledge and of which they have reasonably trustworthy information are
sufficient in themselves to warrant a man of reasonable caution in the belief that
evidence subject to seizure will be found in the place to be searched.
• Procedurally probable cause arises in one of two circumstances
• (1) warrants are only issued with probable cause
• (2) warrantless search where there was probable cause
• Spinelli v. United States
• Facts:
• FBI agents applied for, and were issued, a search warrant to uncover evidence of
D conducting illegal gambling activities. In the affidavit required for the warrant
application, the FBI agents stated that D was known to "local law enforcement
officials as a bookmaker." The FBI related in the affidavit that agents had tracked
D for five days, and that on four of the days, Spinelli was seen crossing into St.
Louis, MO, and entering an apartment. Finally, the agents offered that they "had
been informed by a confidential reliable informant that William Spinelli is
operating a handbook and accepting wagers and disseminating wagering
information by means of the telephones which have been assigned the numbers
WYdown 4-0029 and WYdown 4-0136.” Only the informants tip would lead to
probable cause
• Issue:
• Did the affidavit included in the warrant application afford probable cause
sufficient to issue the search warrant?
• Does an informant’s tip provide probable cause for the issuance of a search
warrant if the tip does not state reasons why the informant is reliable and does
not include specifics regarding the facts known by the informant?
• Holding:
• An informant’s tip does not provide probable cause for the issuance of a search
warrant if the tip does not state reasons why the informant is reliable and does
not include specifics regarding the facts known by the informant.
• Discussion (majority)
• An informant’s tip does not provide probable cause for the issuance of a search
warrant if the tip does not state reasons why the informant is reliable and does
not include specifics regarding the facts known by the informant in sufficient
detail so that the magistrate may know he is relying on something more
substantial than casual rumorI.
• The Aguilar two part test is used:
 • 1. Is the information reliable? (set forth underlying circumstances necessary to
enable the magistrate to independently judge the validity of the informant’s
conclusion)
• In this case, there are no facts provided in the informant’s tip to explain why
the informant thought D was involved in gambling.
• See Draper v. US for benchmark, clothes were minutely described which
allowed inference that informant gained information in reasonable way
• 2. Is the informant reliable?
• The FBI did not provide any reasons why they thought this particular
informant was reliable.
• Therefore, both prongs are failed there was no probable cause to issue the
warrant. The conviction should be overturned. Reversed, for D.
• Discussion (Concurrence, White)
• Prefers Draper approach, “because an informant is right about somethings, he is
more probably right about other facts, usually critical unverified facts”
• Illinois v. Gates
• Facts:
• The police received an anonymous letter stating that (D) made their living by
trafficking in drugs and were traveling between Illinois and Florida with drugs.
The letter explained both how they obtained the drugs and gave dates for the
next purchase. The letter indicated that D had drugs stored in their house. The
police were able to confirm that D’s activities were as predicted in the letter, i.e.,
the wife drove her car to Florida and checked into a room and that the husband
had plane ticket to fly to Florida. Police surveillance confirmed that the couple
and car headed north the day after the husband arrived in Florida.
• Based on this information, police swore out an affidavit and a search warrant was
issued. The car search revealed marijuana, and the search of D’s house revealed
drugs, weapons, and other contraband.
• The Illinois Circuit court suppressed the evidence, holding that there was no
probable cause supported by the police affidavits. The Illinois Supreme Court
affirmed, concluding that the letter did not pass the Spinelli-Aguilar two prong
test. 1. Is the information reliable? 2. Is the informant reliable?
• Issue:
• Is an anonymous letter alleging criminal activity with detailed modus operandi
coupled with a policeman’s affidavits confirming activity conforming to aspects of
the modus operandi sufficient to constitute probable cause under the 4th
Amendment?
• Holding:
• Yes
• Court revered Spinelli. Courts should look at the totality of the circumstances
when determining probable cause
• Discussion (Majority)
• An informant’s “veracity, reliability, and basis of knowledge are all highly relevant
in determining the value of his report”. Those elements are not entirely separate
and need not be rigidly exacted in every case, instead they are just intertwined.
 • A “totality of circumstances” test should be used, to determine probable cause
rather than a rigid, excessively technical, two prong analysis. This is because
probable cause is a fluid concept, and not readily reduced to a rigid set of rules. It
allows a balanced assessment of the relative weights of all the various indicia of
reliability attending an informant’s tip.
• The court held that very strong evidence as to one prong can make up for the
weakness on the other prong, so they simply look at the totality and from all
that info the magistrate can decide whether or not this informant has provided
reasonably trustworthy information. The detail in the letter seemed to suggest
first hand knowledge. Reversed, for P.
• if standard is too high we might get warrantless searches, most affidavits drawn
up quickly by non lawyers
• Discussion (Concurrence, White)
• Still uses Spinelli two prong test
• activities of D led to credibility of letter
• points out that statement that doesn’t set forth the information on which the tip
was founded from an honest officer is not enough, so why should it be enough
from an honest informant
• Discussion (Dissent, Brennan and Marshall)
• Geting rid of two prong test makes magistrates less neutral/independent and
eviserates the probable cause standard
• points out importance of both prongs and so doesn’t want to do away with them
• Discussion (Dissent, Stevens)
• informants letter was different than exactly how things played out, sue didn’t
leave car full of drugs but drove northbound, this discrepancy hurts the claim that
there was drugs in the house (originally one would be with car and one would be
at home, suggesting they don’t want to leave valuable drugs alone), facts that
happened were less suspicious
• Probable cause numbers? Colb article
• doesn’t mean probable, ie more than 50%
Reading #6 (191-95, 199-205, 207-09, Supp 16-17)
Search Warrants
• Constitutional Basis
• When the right of privacy just reasonably yield to the right of search is, as a rule, to
be decided by a judicial officer, not by a policeman or government enforcement
agent.
• searches conducted outside the judicial process without prior approval by judge or
magistrate are per se unreasonable under the 4th amendment, with only a few well
defined exceptions
• the opposing views is that warrants are not needed so long as the search is
reasonable
• Execution of Search Warrants (knock and announce)
• Wilson v. Arkansas
• 4th amendment requires knocking and announcing for most cases (exceptions
for escaping prisoner and physical violence)
• Richard v. Wisconsin
• lower court had declared police don’t have to knock in felony drug investigations,
supreme court disagrees, but agrees with not knocking in this particular case
• Facts
• officers got a warrant for D who they though was selling drugs out of his hotel,
they asked for a no knock warrant and were denied
• officers knocked, first one claimed he was a maintenance man, d cracked door,
saw uniforms, closed door, officers broke down door, d tried to escape through
the window
• d tried to suppress evidence from hotel room
• Discussion
• Wis court did away with knock requirement due high risk of injury, high risk of
drug disposal
• ask whether standard of doing away with in cases physical violence or
evidence being destroyed allows case by case approach to be overturned
• problems with basing rule based on culture of an offense
• overgeneralized perception of drug cases
• same ideas can be applied to other categories and then whole knock rule is
useless
• To justify no knocke entry police must
• reasonable suspicion that knocking and announcing under those
circumstances would be dangerous or futile, or that it would inhibit the
effective investigation of the crime.
• Hudson v. Michigan
• have knock and announce because an unannounced entry may provoke self
defense, to protect property, and to protect privacy and dignity
• Executing a warrant after entry
• can only check certain places
• (1)containers than could hold relevant evidence
• (2)may seize object not in warrant if they have probable cause to believe it is a
seizable item (contraband, or a fruit, instrumentality or evidence of a crime)
• (3) information that becomes available immediately before or during the search
may cause the officers to stop their search (e.g. in the wrong house)

Reading #7 (CB 209-17, Materials 53-59, CB 268-72, 275-79, 281-90, 292-98)
When are warrants required
• US v. Katz (searches conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the 4th amendment, subject only
to a few specifically established and well-delineated exceptions)
• Exigent Circumstances
• Warden v. Hayden
• example of hot pursuit case, pretty uncontroversial
• Kentucky v. King
• Facts
• Police had done an undercover drug sale, seller radios for backup to follower
buyer into apartment. Police not sure which of two apartments suspect goes
into. They smell marijuana and so go to that door, knock and say this is the
police, hear rustling suspect evidence is being destroyed, kick down door, see
drugs, but turned out they had the wrong apartment.
• Discussion
• Kentucky supreme court had two part test (which was rejected)
• Did the police act in bad faith (by deliberately creating an exigency to excuse
themselves from the warrant requirement)?
• if the police did not act in bad faith, was it was reasonably foreseeable that
their investigative tactics would generate the exigent circumstances on
which they went on to rely to justify warrantless entry?
• Several exigencies may justify warrantless search: giving emergency aid,
pursuing fleeing suspect, and preventing destruction of evidence
• lower courts had created an exception where if the police created an
exigency (specifically of evidence being destroyed) by their own conduct it
does not count
• lower courts also had a bad faith test, this should be rejected and instead
things should be viewed objectively
• lower court wanted to reject exigency if it were reasonably foreseeable result
of police tactics, this is rejected because court would have to second guess
• some courts faulted those officers who had probable cause, but didn’t pursue a
warrant, this is ok if you;re just knocking
• defendant doesn’t have to let someone in who just knocks
• Exigency rule still holds, even if the police created the exigency.
• “The exigent circumstances rule applies when the police do not create the
exigency by engaging or threatening to engage in conduct that violates the
Fourth Amendment,"
• Discussion (Dissent)
• majority ruling allows police to know, listent, then break down they door when
they could’ve just waited for a warrant
• wants exigent circumstances to only govern in truly extreme cases, emergency
must exists before the police arrive on the scene
• no reason for officers not to get a warrant here
• Colb Article
• reviews Kentucky v. King case
 • “If police can simply create an emergency to avoid visiting the magistrate, then we
allow the very parties whose judgment requires neutral review to exempt
themselves from that review through their own behavior.”
• “If the police had found themselves in this emergency because they had violated
the law in some independent way, then it would seem to follow -- as even the
deferential U.S .Court of Appeals for the Second Circuit standard provides -- that
police could not rely on that exigency to excuse their failure to obtain a warrant.”
• If the police deliberately create an emergency to avoid having to get a warrant,
then it would seem appropriate that the emergency not count, for purposes of
excusing the warrant requirement. Indeed, police officers' deliberately creating an
exigency to avoid the warrant requirement would appear to be the moral
equivalent of the police simply defying the warrant requirement directly, without
creating an intervening exigency.
• Arguably, in a case in which the police are departing from ordinary procedure by
entering a dwelling without a warrant, their intentions (here, the intention to frustrate
the warrant requirement) can effectively undermine the exigency that would
otherwise have excused the warrantless entry.
• Accordingly, whether as a matter of bad faith or of foreseeably pointless police
conduct, the police decision to knock and announce -- without any defensible
reason -- gave rise to the exigency on which police then relied to justify their
warrantless entry.
• Cars and Containers
• Chambers v. Maroney
• Facts:
• Two men rob a station and their car is reported by teengagers who say they
saw the car speeding away and who say they saw one man in a green sweater
(as the station attendant said one of the robbers was). Police broadcast
description, find car, men arrested, car searched and stuff inside (guns, money,
and id of station attendant) introduced at trial.
• Discussion:
• Search cannot be justified as incident to arrest
• “once an accused is under arrest in custody, then a search made at another
place, without warrant, is simply not incident to the arrest”
• There was probable cause to search the car
• court distinguishes between car and house
• In Carroll v. US, the S Ct held that cars may be searched without a warrant
in circumstances that would not justify the search without a warrant of a
house or an office, provided there is probable cause to believe that the car
contains articles the officer is entitled to seize
• Carroll held that search warrants are unnecessary where there is probable
cause to search a stopped car, the car may disappear with the evidence
• court says there is no constitutional difference between an immediate search
and seizing a car until a warrant is issued, given there is probable cause
• the probable cause transferred to the station and so it could be searched
• “For constitutional purposes [there is] no difference between on the one hand
seizing and holding a car before presenting the probable cause issue to a
 magistrate and on the other hand carrying out an immediate search without a
warrant.”
• Discussion (Dissent)
• to say that the probable cause was maintained on the way back to the station
is not in line with the idea of exigency
• the lesser intrusion is to get a warrant and so that should be done
• California v. Carney
• Facts
• D goes into motor home with youth. Police wait outside, since they had been
informed motor home was used for sex and marijuana exchange. When youth
emerged police talked to him, he said he had exchanged sex for marijuna.
Police ask youth to knock on door, police enter, and see marijuana and drug
paraphernalia.
• Discussion
• Carroll held that the mobility of a car allows a lesser degree of privacy and
protection interests in the car
• cars are also already subject to a bunch of requirements and inspecctions
and so public is aware of less privacy
• the motore home, being mobile, was subject to regulation and the way it was
parked indicated it was being used as a vehicle
• To distinguish between a motor home and a regular car would require applying
the exception based on size of the vehicle and its attributes, and ignores the
fact that a motor home is easily used for drug trafficking and other illegal
activity
• Discussion (Dissent)
• Since motor home is on the boarder of car and home we should lean towards
privacy
• unclear why officers didn't get warrant
• motor homes have greater expectation of privacy
• US v. Chadwick
• Facts:
• Railroad officials see talcum powder leaking out of trunk and men who fit the
drug trafficker description, call ahead to Boston. When men arrive in Boston
with trunk officers went up with dog who alerted,wait till trunk is trunk of car
and then seize it. Trunk was sealed with padlock, officers opened it later.
• Discussion
• warrantless search here was unreasonable
• 4th protects people and places
• by putting items in locked truck D’s met Katz test
• no exigencies in this case, so they should’ve got a warrant
• unlike a car a trunk is not open to public view not subject ot the same
regulations and inspections and is met to carry personal items not transport
people
• no danger trunk would’ve been removed before a warrant was obtained
• Searches of items within the immediate control of the defendant are
reasonable. However, warrantless searches of property seized at time of
 arrest cannot be justified as incident to arrest if either the search is remote in
time for the arrest or no exigency exists.
• Dissent (Blackmun)
• warrant is not required to search clothing and effects of someone who is
arrested (Robinson)
• impounded car, where there is probable cause can be searched (chambers)
• this should be applied to hold that a warrant is not required to seize and search
any movable property of a person properly arrested in a public place
• since they would’ve probably gotten warrant no reason to wait for it.
• California v. Acevedo
• Facts
• Guy picks up package that is known to contain marijuana, he takes the
package home. Police wait outside home for a warrant, while waiting D arrives
and leaves the house with a brown bag the size of a marijuna package. Police
fearing evidence will be lost pull him over, find marijuana in the trunk
• Discussion
• Police don’t need to obtain a warrant to open a container in a car simply
because they lack probable cause to search the entire car.
• By attempting to distinguish between a container for which the police are
specifically searching and a container which they come across in a car, we
have provided only minimal protection for privacy and have impeded effective
law enforcement.
• Separate rules governing the two objects doesn’t serve privacy interests by
allowing police to broaden their power. If the police know that they can only
open a bag if searching the entire car, then they will have incentive to search
more extensively.
• Makes more sense to have one clear cut rule to govern automobile searches
and eliminate the warrant requirement for closed containers set forth in
Sanders
• For all searches of containers found in cars the police may search without a
warrant if their search is supported by probable cause
• here the police had probable cause to believe the bag had marijuana. this
allows a warrantless search search of the bag, but did not have probable
cause to search anywhere else in the car.
• Police may conduct a warrantless search of a container within an automobile if
they have probable cause to believe that the container holds evidence.
• Discussion (Concurrence)
• dissent is right that it is anomalous for a container to protected by the need for
a prior warrant until that container is in a car
• majority is right that it is anomalous for a lock container in a car to not be
protected by need for a warrant and for an unlocked container to be protected
• majority’s opinion is closer to the text and so what we should go with
• Discussion (Dissent)
• Lays forth majority’s three arguments and disagrees with each in turn
• the rules identified in the foregoing cases are confusing and anomalous
 • even proof beyond reasonable doubt does not allow warrantless search
unless there is an exigency
• anomalous for a container to protected by the need for a prior warrant until
that container is in a car
• police could have just seized with probable cause then gotten a warrant
• the rules do not protect any significant interest in privacy
• court is suggesting privacy interests vanish when something goes from
outside to inside a car and that doesn’t make sense
• the rules impede effective law enforcement
• no support for this claim and even if thee was that’s an acceptable price to
pay for privacy
Reading #8 (261-68, 299-311, Materials 39-44)
• Whren v. US
• Facts
• unmarked police on partrol, in high drug area, truck with temp plates young
drivers, waited at intersection for long period of time, truck turned right without
signaling and sped off, police pulled up along side and saw drugs
• Discussion
• Argument that stop not justified by probable cause, argument that traffic stop was
pre textual.
• probable cause not high enough barrier because traffic violations are so
common and traffic stops can just become pre textual, want different stand
• Appellate court agreed and held that traffic stop is permissible as long as a
reasonable officer in the same circumstances could have stopped the car for
the suspected violation.
• Court distinguishes previous cases and points out the closest they got to denying
pretext was in dicta
• In fact the court says “we flatly dismissed the idea that an ulterior motive might
serve to strip the agents of their legal justification.” Specifically held traffic
stops not invalidated cause they are pre textual
• Refuse to allow test that is designed to prevent pretext but doesn’t state that
• Horton v. California (doesn’t need to be inadvertent )
• Facts:
• Horton convicted of robbing the Wallaker, W was accosted in gragage by two
men, one amred with taser the other with a gun.
• Officer got warrant to search for proceeds of crime, but also searched for the
weapons (claimed there was probable cause). Didn’t find proceeds found some
guns and clothing described in the robbery.
• Discussion:
• If an article is in plain view, neither its observation nor its seizure would involve
any invasion of privacy (would invade interest to seize though) and so gives an
exception from a warrant requirement.
• Plain view doctrine: needs to be sufficiently narrow, where the initial intrusions
that brings something into plain view is support not by a warrant but by an
exception to the warrant the plain view doctrine applies. What required:
• prior justification for intrusion (Warrant or not)
• inadvertently came across the evidence
• incriminating character of the evidence must be immediately apparent
• not only lawfully in the right place, but lawfully have access to the object
• limitations:
• plain view alone is never enough to justify warranties seizure of evidence
• discovery of evidence under the plain view doctrine must be inadvertent
• justification
• won’t turn regular search into a general one while getting a warrant would be
difficult
• flaws:
 • this is a subjective standard, we want objective standards (if you know/
think the second item will be there put it in the warrant or what’s the
point of warrants). also it doesn’t matter for the victim wheether the
evidence is discovered inadvertently or not still seized (picture example)
• warrants already limit searches, no need to do so with plain view
doctrine
• If the scope of the search exceeds that permitted by the terms of the warrant or
character of the relevant exception the subsequent seizure is unconstitutional.
• Holding
• search ok under plain view doctrine
• items discovered during a lawful search
• when they were discovered it was immediately apparent that they were
incriminating
• officer had probable cause not only to obtain a warrant for the stolen
property, but also to believe that the weapons and handguns had been used
in the crime he was investigating.
• Dissent
• basically argue this goes around the warrant requirement
• also discusses possessory interest, claims majority is just focusing on privacy,
but not possessory interests
• Arizona v. Hicks
• Facts
• Bullet fired through floor of D’s apartment, injured a man below. Officers
searched apartment, found weapons and a stocking cap mask. Saw nice stereo
stuff, moved it a little to get serial numbers, reported numbers told stuff stolen,
took it immediately.
• Discussion
• Recording serial numbers was not a seizure, since it did not meaningfully
interfere with d’s possessory interest.
• Moving the equipment was a search though, apart from the legally authorized
search. Just looking at the turntable would’ve been fine, but taking down the
serial numbers was too much, since stuff had to be moved.
• So there was a search, was it reasonable?
• everything ok if this falls under plain view doctrine, does it?
• there would be if he had probable cause to think stuff was stolen, but he only
had reasonable suspicion. is that enough?
• no you need probable cause for the plain view doctrine
• seizure is ok w/less than probable cause: minimally intrusive and it is the only
practicable means of detecting a certain type of crime
• can’t allow search on lesser grounds than seizure, interests are different but
equally important
• Dissent
• What should the officer have done?
• couldn’t of gotten a warrant (no probable cause), couldn’t have forcibly
removed the stuff either
 • says the just looking at serial number v. moving stuff to look at it is a dumb
distinction
• Dissent
• mere inspection is different and doesn’t require probable cause
• Materials

Reading #9 (179-86, 189-90, Materials 45-48)
• Payton v. New York
• Facts:
• Detectives assembled evidence to have probable cause that Payton killed gas
station manager. No warrant, went to house, Knocked on door, no one answered
but there was light and music, called to get help opening door, saw used bullet
casing. Later used bullet as evidence in trial.
• Discussion
• Searches and seizures within a home without a warrant are presumed to be
unreasonable. However, objects such as weapons or contraband find in a public
place may be seized by the police without a warrant. Plain view doctrine allows
seizure of property in plain view if there is probable cause to associate the
property with criminal activity.
• This applies to seizure of a person as well.
• Absent exigent circumstances a warrantless entry to search for weapons or
contraband is unconstitutional even when a felony has been committed and there
is probable cause to believe that the incriminating evidence will be found within.
• Is there a different between search for property and search for person?
• maybe, but the differences are of degree and not kind
• NY argues that the reasons that support Watson (warrantless arrest in public)
require a similar result here. This is wrong for 3 reasons
• Watson relied on a well settled common law rule
• Here the absence of 17th or 18th century English cases on point, together
with the tenet that a man's house is his castle suggest that the prevailing
practice was not to make such arrests except in hot pursuit or with a warrant
• There was a consensus among states
• Here, while 24 states permit warrantless entries, there is by no means
virtual unanimity as in Watson
• Congress expressed that it was reasonable
• There has been so such expression here
• Even though an arrest warrant offers less protection than a search one, it still
should be had because it serves to stand between and overzealous officer and
a citizen.
• The Fourth and Fourteenth Amendments of the United States Constitution
(”Constitution”) prohibit warrantless entries for searches of homes, absent
exigent circumstances, even when there is probable cause.
• A police officer who wishes to arrest an individual in her home must first obtain
an arrest warrant, even though the same arrest could have taken place in
public without a warrant (i.e. with just probable cause)
• Disent
• At the time the amendment was adopted, police had broad powers to arrest and
the warrant only expanded that
• It was the abusive use of warrant power that precipitated the 4th amendment
• It was not considered generally unreasonable at common law officers to 

break doors to effect a warrantless felony arrest, therefore the 4th amend 

was not intended to outlaw that
 • The 4th amend protects people, not places, no talismanic significance 

should be given to an arrest occurring in a home
• The common law had four restrictions on home arrest that protect privacy
interests enough: knock and announce to warn, felony requirement, that the
arrest occur in daytime, and that there be probable cause for the arrest and
probable cause that the D be home
• Steagald v. US
• Offiers had valid warrant, entered Steagald’s house to find suspect (based on tip),
didn’t find suspect found cocaine. Brought Steagald up on drug charges.
• Issue
• Whether an arrest warrant, as opposed to a search warrant, is adequate to
protect the 4th amendment interested of person not named int he warrant, when
their homes are searched without their consent and in the absence of exigent
circumstances.
• Discussion
• Different between regular warrant and search warrant. Arrest warrant is for
seizure, search warrant protects against searching.
• In this case the warrant was to seize a person, not to seize stuff and so the
warrant is inapplicable.
• When carrying out an arrest in the home of an individual other than the arrestee
himself, the police must obtain a search warrant (specifying probable cause to
believe that the criminal suspect who is subject to arrest is located in the home of
the third party). An arrest warrant alone, in other words, is an insufficient basis for
arresting a suspect in an innocent third party's home.
• Welsh v. Wisconsin
• Because the arrest was performed in a person's home at night, a time when the
privacy interest in the home is greatest, and because the offense in question was
"only a minor" (civil rather than criminal) offense, the Court held that the police
should not have entered without an arrest warrant. 

Reading #10 (349-360, 363-66)
• Terry v. Ohio
• Facts:
• T convicted of carrying a concealed weapon.
• Officer saw two men standing on a corner, for an inarticulable reason the men
looked suspicious, so he started watching them. Men walked up to, looked into,
and walked away from a store window multiple times, after looking in the window
they would discuss. Eventually a third man joined them briefly, walked a few
blocks away, and was rejoined by them. Officer thought men were going to rob a
store.
• Approached the men, asked for their names. T mumbled, officer spun him
around, patted him down and felt the weapon. Ordered all three against the wall,
performed a pat down, found another gun.
• Issue
• Whether it is always unreasonable for a policeman to seize a person and subject
him to a limited search for weapons unless there is probable cause for arrest.
• Discussion
• T protected by 4th as he walked down street, but question is whether encounter
was unreasonable search and seizure.
• The issue is that stop and frisk are differentiated from arrest and search
respectively.
• Idea being stop and frisk is a minor inconvenience and petty indignity and
that is not the case with arrest and search. Having these two approaches
allow police to adapt to multiple situations.
• Counter to this is that the authority of the police must be circumscribed by
the law of arrest and search. Since doing otherwise allows the police to give
into the competitive enterprise of ferreting out crime and negative affects
police/civilian relations.
• At what point in the encounter does the 4th amendment become relevant?
• Stop and frisk clearly falls under the 4th.
• Whenever an officer accosts an individual and restrains his freedom to walk
away he has seized that person.
• Also, clearly wrong that frisking is a petty indignity.
• Distinguishing stop and frisk attempts to isolate actions from the 4th and skirts
the limitations in the amendment.
• diverts attention from the central inquiry of the 4th amendment, the
reasonableness in all the circumstances of the gov invasion of a citizen’s
personal security
• Therefore officer seized and searched T, question is “whether the officers
action was justified at its inception, and whether it was reasonably related in
scope to the circumstances which justified the interference in the first place.”
• This search was not approved by a warrant, must be examined by “the 4th
amendments general proscription against unreasonable searches and seizures.”
• First step in determining reasonableness: focus on the interest which justifies
the intrusion into constitutionally protected interests
• officer must point to articulable facts
 • facts must be judged against objective standard: would the facts available to
the officer at the moment of the seizure or the search warrant a man of
reasonable caution in the belief that the action taken was appropriate?
• Nature and extent of gov interests:
• crime prevention and detection
• officer determining if people he is speaking to are armed
• if officer believes person he is talking to is armed and dangerous,
officer has right to determine whether the person is in fact carrying a
weapon and neutralize that harm
• don’t have to wait for probable cause for an arrest
• doesn’t recognize the difference between limited and less limited searches.
just looking for the weapon, while intrusive, is less than a full search
• arrest and search are different
• reasonable search for weapons for the protection of the police officer is ok,
when he has reason to believe (not absolute certainty, jus reasonably prudent
man standard) he is dealing with an armed and dangerous individual,
regardless of whether he has probable cause to arrest the individual for a
crime.
• in this case reasonably prudent man would have thought T was armed and
thus presented a threat
• search was sufficiently limited
• Concurrence (Harlan)
• if the frisk is justified officer must first have constitutional ground to insist on the
encounter (forcible stop)
• must have a right not to avoid the dangerous person, which is more than just
the right to talk to people, must have reasonable cause for forced stop
• Concurrence (White)
• nothing stopping police from asking people questions, nothing making them
answer
• Dissent (Douglas)
• problem here is there wasn’t probable cause, this gives police more authority
than a judge has to authorize search and seizure
• reasonable suspicion is a lower bar than probable cause
• US v. Hensley
• Terry doctrine applies when an officer is investigating a completed felony: stops are
allowed if the police have a reasonable suspicion, grounded in specific and
articulable facts, that a person they encounter was involved in or is wanted in
connection with a completed felony.
• Conduct during pat down
• remember, whatever is found must be “immediately” recognized (Dickerson)
• Illinois v. Caballes
• police lawfully stopped driver for speeding, drug dog sniffed car, no reasonable
suspicion for drugs
• drug dog doesn’t constitute 4th amendment search, so (d) argued using the dog
changed the nature of the stop, this was rejected
• A lawful roadside stop begins when the vehichle is pull over…stop ends when
police have no further need to control the scene and inform passengers they are
free to leave.

Reading #11 (426-41)
• Michigan Department of State Police v. Sitz
• Facts
• sobriety checkpoint pilot program established. program run by advisory
committee. go through point if officer sees signs of intoxication you are pulled
over and tested, everyone else continues through.
• Discussion
• Must use a balancing test. Balance state interest and effectiveness of
checkpoints v. legal of intrusion in individuals privacy.
• it is a seizure when vehicles are stopped at a checkpoint
• risk is grave, intrusion is objectively minor (like the immigrant checkpoints)
• court of appeals said there was subjective intrusion through fear.
• the fear that matters is the innocent driver’s, not the drunk driver’s
• how effective?
• degree to which the seizure advances public interest, this is decided by
politically accountable officials from reasonable options
• these points did stop some drivers and were therefore a reasonable option
• Holding:
• balance of the states interest in preventing drunken driving, the extent to which
this system can reasonably be said to advance that interest, and the degree of
intrusion upon individual motorists who are briefly stopped weighs in favor of the
state program
• Dissent (Brennan)
• problem here is a lack of individualized suspicion
• Dissent (Stevens)
• Advance notice of a permanent checkpoint would limit intrusion on privacy, no
such opportunity is available for random stops, because they depend on
surprise, which causes fear, especially when combined with occurring at night
• The court is wrong to say this is not more intrusive than a permanent
checkpoint
• checkpoints catch some drivers, but unclear if this is more than would be caught
without the checkpoints
• The court gives no weight to the interest in freedom from suspicion less 

unannounced investigatory seizures
• An ok example would be breathalyzers at all permanent tolls, because the
checkpoints are permanent, the stops apply to everyone in the same way, and
police could not make arbitrary choices about where to stop people
• City of Indianapolis v. Edmond
• Same idea as Sitz, but with illegal narcotics
• Facts
• hit rate of 9%, asks driver for license and registration, look for signs of
impairment, open eye examination of the vehicle from outside, drug dog walks
around outside each stopped vehicle. officers can only conduct a search by
consent or based on enough particularized suspicion. generally done during
daytime and identified with large signs, stop last two-three minutes
• Discussion
 • The program is unconstitutional, the court will not suspend the usual requirement
of individualized suspicion where the police seek to employ a checkpoint
primarily for the ordinary enterprise of investigating ordinary crimes
• Some suspicion less searches are allowed where the program serves special
needs beyond the normal need for law enforcement or for administrative
purposes without particularized suspicion of misconduct. or where the seats are
sufficiently limited
• Also, checkpoints to intercept illegal aliens or drunk drivers are allowed
• What distinguishes these from the case at hand is that we have never approved
a checkpoint program whose primary purpose was to detect evidence of ordinary
criminal wrongdoing
• Here, the primary purpose of the checkpoint is to uncover evidence of ordinary
criminal wrongdoing, therefore violating the 4th amendment
• The gravity of the threat alone is not dispositive. Instead to determine whether
individualized suspicion is required, we consider the nature of the interests
threatened and their connection to the particular law enforcement practices at
• We are reluctant to recognize exceptions to the general rule of individualized
suspicion where govt. authorities pursue general crime control ends
• The detection and punishment of almost any criminal offense serves the safety of
the community, but only a with a smaller class of offenses is society confronted
with the type of immediate, vehicle bound threat to life
• In some emergencies, general crime control vehicle stops would be allowed,
such as to stop a terrorist attack or to catch a fleeing criminal
• The city argues the stop is constitutional because it also checks license &
registration and driver impairment, since these are legitimate interests (Whren)
but if this were all it took, stops for almost any purpose would be allowed if they
also checked those 2 things
• Dissent (Rhenquist)
• Because of the valid reasons for conducting these seizures (checking license &
registration and looking for signs of impairment), it is constitutionally irrelevant
that the police also hope to catch drugs.
• With the checkpoints serving two important state interests, the three prongs of
brown are met
• Dissent (Thomas)
• wants to stop all checkpoints
• Illinois v. Lidster
• checkpoint designed to get information about a hit and run accident that had
occurred in the same place a week earlier
• this is different because the idea is not to apprehend the drivers but to get
information from them to apprehend others , even thought it is a general interest
crime
• information seeking stops less likely to be intrusive or cause anxiety
• unlikely that these stops will proliferate to far due to resources required
• balancing test:
• grave public concern, interest advanced, only minimal interference
Reading #12(221-28, 17-18, Supplement 20-33, Riley Column)
• Chimel v. California
• Facts
• three officers went to p’s house with a warrant for arrest, officers knocked,
identified themselves to p’s wife, asked to come, allowed in and waited for p to
come home from work.
• when p got home he was handed arrest warrant and asked for permission to look
around, p denied permission, officers said they would search under basis of
lawful arrest anyway
• p’s wife followed them as officers looked through the home, officers asked wife to
open drawers and move some stuff around, officers seized stuff and admitted
some of it into evidence
• Issue
• Whether the warrantless search of the p’s entire house can be constitutional
justified as incident to the arrest?
• Discussion
• warrantless search incident to arrest seems to be ok, at least in respect to the
person being arrested and what’s in his “control” (Weeks and Carroll)
• Angello v. US expanded this to the place of arrest, upheld in Rabinowitz
• Rabinowitz: test is not whether it is reasonable to procure a search warrant not
whether the search was reasonable
• has come to stand for the proposition that a warrantless search incident to
lawful arrest may generally extend to the area that is considered to be in the
possession or under the control of the person arrested
• burden of search warrant shouldn’t be lightly dispensed with
• area within immediate control makes sense for safety reasons, but this logic
doesn’t extend beyond immediate control
• note that Rabinowitz involved just the search of a single room
• note that if he had been arrested elsewhere home couldn’t of been searched
• so yeah this is not ok:
• search went beyond petitioner’s person and area he had control over
• no constitutional justification in absence of search warrant
• scope therefore unreasonable
• Dissent White/Black
• don’t want court to move past control rule
• just because the control rules does not reasonably apply to those areas where
accused doesn’t have access don’t necessarily make those searches per se
unconstitutional
• if there is probable cause to search and obtaining a warrant is impracticable
then a warrantless search can be reasonable
• probable cause here to search the house, P had obliquely admitted the robbery,
and wife was in the house (can’t just leave officer there) so presumable she
would’ve disposed of evidence
• this dissent is fact specific
• Riley v. California
• In Riley, the petitioner, David Leon Riley, was stopped by police for a traffic
violation. In the course of the stop, police discovered that Riley’s license had been
suspended, and the car was impounded. As a routine part of impounding the
vehicle, police conducted a lawful inventory search of the car, during which they
found two handguns. Police subsequently arrested Riley for possession of
concealed and loaded firearms.
• During the search, the officer found and seized a smart phone from Riley’s pocket.
In subsequently accessing data from the cell phone, the police learned of Riley’s
connection with a criminal gang known as the Bloods and learned as well of Riley’s
involvement in a shooting a few weeks earlier.
• The legal status of the police officers’ perusal of data on Riley’s and Wurie’s cellular
phones turned on whether examining digital data on a cell phone qualifies as a
legitimate “search incident to arrest” under the doctrine recognized by the U.S.
Supreme Court in Chimel v. California
• Principles for searching area under control
• First, the two driving rationales for such searches are clear: the need to disarm
someone who is under arrest to protect officer safety, and the need to prevent
the arrestee from concealing or destroying evidence within his reach. This means
that if, as a general matter, an arrestee will not be able to threaten officer safety
or evidentiary integrity in a category of cases, then a search incident to arrest
would not be appropriate for that category.
• A second principle driving search incident to arrest doctrine, found in Robinson,
is that courts will not ask, in each case, whether the police officer who performed
a search incident to arrest was specifically justified in suspecting that she might
find evidence or weapons on the suspect or within the area immediately
accessible to the suspect. The search incident to arrest doctrine is a general
doctrine that applies to a class of cases without the need for “reasonable
suspicion” or “probable cause” in an individual instance.
• A third principle driving the doctrine, articulated in Gant, is that if an arrestee is
not able to reach an area at the time of a search incident to arrest, then that area
is not legitimately subject to search, with a limited exception for cases in which it
is “reasonable to believe” that the passenger compartment of a vehicle will
contain evidence of the crime of arrest. That is, although the doctrine applies
generally (without the need for articulable suspicion in the particular arrest case),
its application is limited to the areas genuinely accessible to the suspect, where
the dual rationale for the search could, at least in theory, apply.
• Applied reasonable balancing test:
• (1) the search of cell phone digital data is not needed to promote legitimate
governmental interests in police safety and preservation of evidence during an
arrest, in the way that a search incident to arrest normally is needed to
promote these interests
• the data on a cell phone do not constitute weapons that an arrestee can use
against the police to impede the arrest process
• (2) the search of cell phone digital data represents a major intrusion on the
arrestee’s privacy, not comparable to the relatively minor added invasion of
privacy ordinarily associated with a search incident to arrest.
 • once police seize a cell phone (a seizure that Riley and Wurie concede is
permissible incident to arrest), the arrestee is no longer in a position to
conceal or destroy data on the cell phone.
• though third parties could potentially initiate a remote data wiping, the
Court noted that risks from third parties were never part of search incident
to arrest doctrine and that there are, in any event, apparently other,
superior ways of handling such risks than blanket authority to examine
digital data
• Riley v. California
• Facts
• Riley Case
• Riley stopped by police for expired tags, officer learned license was suspend,
impounded car, found guns under the car’s hood. Also found a cell phone in
Riley’s pocket. Officer took information off phone linked Riley with The Bloods.
Used the information to charge him with past crimes.
• Wurie Case
• Officers saw Wurie make drug sale from car. Arrested Wurie and took phones.
Used phone info to find Wurie’s apartment. Got a search warrant and then
found drugs in the apratment.
• Discussion
• Case require decision on how incident to arrest applies to cell phones
• usually compare degree of intrusion on privacy v. degree of promotion of
legitimate government interests
• Robinson, allowing searching of containers discovered on arrestee’s person,
doesn’t apply to phones.
• destruction of evidence (phone can still be seized, preventing it from being
smashed, wiping turns on action of parties who are not present {also can
be stopped fairly easily}, and locking of phone is not attempt to destroy
evidence)
• harm to officers(can search phone for weapon, once it is established
phone is just a phone no reason to continue search)
• further phones have far more information than a container and far more
sensitive information, further more people carry them and their information
now than was done previously
• also odd that data isn’t necessarily “on” the phone and search incident
to arrest wouldn't cover this data
• gov proposes certain scenarios for warrantless phone searches
• when it is reasonable to believe phone contains evidence of the crime of
arrest (no practical limit to this, can alawys imagine this is the case)
• restricted scope to those areas of the phone believed to be relevant to the
crime (again no limit)
• always can search call log (these call logs are searches unlike pen registers
and tehy contain more information)
• if they have information in non digital form (doesn’t make sense)
• this case is not prohibiting searching phones, just requires a warrant and still
allows warrant exigencies
• Concurrence (Alito)
• disagrees about foundation of searches incident to arrest
• older than 4th amendment and so shouldn’t use wrong analysis
• might reconsider if info on cells is broken uo

Reading #13 (238-59)
• US v. Robinson
• Facts:
• Officer stops D and arrests him for driving without a permit (conceded that there
was probable cause and arrest was lawful)
• Officer does a pat down search, feels something , pulls out a pack of cigarettes,
thinks what was in was not cigarettes, and opens it
• D is convicted
• On appeal, court finds that under Terry v. Ohio, only a limited frisk of 

outer clothing for weapons is allowed
• Discussion:
• Reversed, search was constitutional
• Terry v. ohio was not an arrest for probable cause. There is a distinction between a
search incident to arrest and a limited search for weapons. Therefore the rules of
Terry do not apply here
• The appellate court held that the only reason for such a search is to discover fruits,
and driving without a license does not create fruits
• However, again, Terry is too narrow, and here the search is to disarm the suspect
and also to preserve evidence
• An officer is under more danger during the extended time of an arrest, and
therefore all custodial arrests may be treated the same for search purposes
• The court of appeals suggest that in each case it must be litigated where there
was a reason present to support the search incident to arrest
• However, the authority to search does not depend on what a court may later
decide. In the case of a lawful custodial arrest a full search of the person is not
only an exception to the warrant reqt of the 4th amend, but it is also a reasonable
search under that amend.
• Concurrence
• An individual lawfully subject to a custodial arrest retains no significant 4th amend
interest in the privacy of his person
• Dissent
• There is always the possibility that an officer lacking probable cause to obtain a
search warrant will use a traffic arrest as pretext to conduct a search. Therefore a
case by case adjudication is always necessary to determine whether a full arrest
was legitimate, or merely a pretext to search
• The pat-down was lawful. However, the officer had no reason to believe (and did
not believe) that the object in the coat was a weapon
• There could be no reason to search to preserve evidence cause there can be no
fruits of this type of crime. Therefore the only rationale would be to look for a
weapon
• Even assuming it was reasonable to remove the cigarettes, there was no 4th
amend justification for authorizing the opening of the package
• The search here went beyond what was reasonable necessary to protect the
officer from harm or to ensure D would not escape from custody. Therefore it was
outside the scope of a search incident to arrest exception to the 4th amend
• NY v. Belton
 • Facts:
• Officer pulls over car for speeding
• None are the registered owner of the car
• Smells marijuana so searches each person
• In the back of the car finds D's jacket that had cocaine in the pocket ︎ D is
charged, moves to suppress
• Suppression denied
• Discussion
• Police need bright line rules that allow them to make a correct determination as to
whether an invasion of privacy is justified in the interest of law enforcement
• While Chimel held that a search incident to arrest is limited to the area within the
immediate control of the arrestee, courts have not found what this means
regarding the interior of a car
• When a policeman has made a lawful custodial arrest of the occupant of a car, he
may, incident to arrest, search the passenger compartment of the car
• The police may also examine the contents of any containers found in the
passenger compartment, because if the passenger compartment is considered to
be in reach, the containers are too
• Such a container may be searched whether open or closed, because the
justification for the search is not that the arrestee has no privacy interest in the
container, but that the lawful custodial arrest justifies the infringement of any
privacy interest the arrestee may have.
• Here, the jacket was in the passenger compartment and therefore within the
immediate control, and therefore was a search incident to lawful custodial arrest,
and did not violate the 4th and 14th amends
• Dissent (Brennan)
• The Chimel exception to the warrant was designed with 2 

concerns in mind: the safety of the arresting officer and the preservation of easily
concealed or destructible evidence, and was narrowly tailored to these interests
• Once the arrest has been consummated and the arrestee taken in to custody, the
Chimel justifications cease to apply
• The crucial question under Chimel is not whether the arrestee could ever have
reached the area that was searched, but whether he could have reached it at the
time of the arrest and search. If not, the failure to obtain a warrant should not be
excused
• The mere fact that law enforcement may be made more efficient (here by a bright
line rule) can never by itself justify disregard of the 4th amend, and the Chimel
standard is not difficult to apply as the court suggests
• Dissent (White)
• This would allow searches of luggage, briefcases, or other containers, which
seems too extreme under Chimel
• Atwater v. City of Lago Vista
• A was arrested and taken into custody for driving without her kids in seatbelts. She
sued that he 4th amend rights were violated by being custodially arrested for such a
minor offense. The court held that although the officer here exercised very poor
 judgment, it would be too hard to draw a line between jailable and non jailable
offenses. The dissenters noted that this could allow harassing and searches
• Even where the police arrest a subject where they could only issue a citation, they
may still search. This is because the S Ct. held that a custodial arrest based on
probable cause, although in violation of state law, is lawful for purposes of 4th
amend. Therefore a search conducted as an incident of such an arrest satisfies the
4th amend
• Thornton v. US
• D need not be arrested in the car for Belton to apply so long as the arrestee is the
recent occupant of the vehicle (here D parked, exited, and was arrested). Scalia
concurred but noted that Belton was unreasonable to protect from violence since
normally the suspect is already in custody, and is only relevant to find further
evidence.
• AZ v. Grant
• Facts
• D is arrested for driving without a license
• He is arrested once he gets out of his car at home
• He is arrested and handcuffed in the police car
• Police then search his car and find cocaine in his jacket ︎ AZ S Ct., holds that
Chimel and Belton did not apply here
• Discussion
• Belton does not authorize a vehicle search incident to a recent 

occupant's arrest after the arrestee has been secured and 

cannot access the interior of the vehicle
• In Chimel, we held that the search incident to arrest may only 

include the arrestee's person and the area within his immediate 

control
• Belton has been widely read to allow a vehicle search incident to 

the arrest of a recent occupant even if there is no possibility the arrestee could
gain access to the vehicle at the time of the search
• Under this broad reading of Belton, a vehicle search would be authorized incident
to every arrest of a recent occupant notwithstanding that in most cases the
vehicle's passenger compartment will not be within the arrestee's reach at the time
of search
• We reject this reading of belton and hold that the Chimel rationale authorizes
police to search a vehicle incident to a recent occupant's arrest only when the
arrestee is unsecured and within reaching distance of the passenger compartment
at the time of the search
• We also conclude that the circumstances unique to the vehicle context justify a
search incident to lawful arrest when it is "reasonable to believe evidence relevant
to the crime of arrest might be found in the vehicle”
• In many cases there will be no such reasonable belief (ex. Traffic violation) but in
other cases (ex. Drug arrest) there may be
• Here neither of these rationales justified the search. D was secured, and had been
arrested for a traffic violation
 • A rule that gives police power to conduct such a search whenever an individual is
caught committing a traffic offense, when there is no basis for believing evidence
of the offense might be found in the vehicle, creates a serious and recurring threat
to the privacy of countless individuals
• The experience of the 28 years since Belton has shown that the generalization
underpinning the broad reading of that decision is unfounded. We now know that
articles inside the passenger compartment are rarely within the are into which an
arrestee might reach and blind adherence to this faulty assumption would
authorize unconstitutional searches. Stare decisis does not require that such
violations be authorized
• Concurrence
• To determine was is an unreasonable search first we look to 

what the framers thought to preserve. Because there is little guidance here, we
look to apply traditional standards of reasonableness.
• It is clear that those standards do not justify the rule of Benton and Thorton: that
arresting officers may always search an arrestee's vehicle to protect themselves
from weapons
• When there's an arrest incident to a roadside stop, police almost always can
ensure their safety by handcuffing or patting down the D and putting him in the
squad car
• A vehicle search incident to arrest is ipso facto reasonable only when the object of
the search is evidence of the crime for which the arrest was made, or of another
crime the officer has probable cause to believe has occurred. Here, neither applied
and the search was unlawful.
• Dissent (Breyer)
• Stare decisis has a heavy burden to be overturned, and here it has not been met
• Dissent (Alito)
• The court refuses to acknowledge that it is overruling Belton & Thornton, it instead
says Belton should be read more narrowly than the terms that are explicitly set out
in Belton
• However, constitutional precedent should be followed unless there is a special
justification for abandonment.
• Relevant factors include reliance, change in circumstance, unworkability,
undermining, and poor reasoning. Here, these factors when in favor of retaining
Benton's rule.
• There is reliance here because Benton has been taught to officers for 28 years
• There are no changed circumstances of the dangers surrounding arrest of a
vehicle occupant than 28 years ago
• The benton rule is not unworkable and has not been undermined by later cases
• The court is harshly critical of Belton's reasoning, but Benton was a modest and
defensible extension of Chimel. 


•
Reading #16 (311-20, 336-43, Supp 33-34, Fernandez Column)