Criminal Constitutional Law & Procedure

SEE ALSO, SPINELLI ("Aguilar-Spinelli Test")
TEST FOR EVALUATING PC BASED ON CI'S HEARSAY
Rule: Evidence obtained pursuant to a warrant supported only by the beliefs or suspicions of an unidentified informant is not admissible in criminal proceedings.
Case: Aguilar arrested after warrant issued based on affidavit stating officers received info from unidentified informant. Aguilar convicted of heroin possession.

SEE ALSO, AGUILAR ("Aguilar-Spinelli Test")
TEST FOR EVALUATING PC BASED ON CI'S HEARSAY
Rule: An affidavit that lacks sufficient detail to explain why an informant is reliable and how he came to his conclusions does not provide the necessary probable cause to obtain a search warrant.
Case: FBI got a search warrant based on information provided by an informant; the gov said the informant’s testimony made probable cause; FBI also had “corroborating” info; (this info was actually not showing any criminal activity) ; D was convicted of illegal gambling – trial and appeals courts ruled info obtained from warrant was admissible.
Aguilar-Spinelli Test, Two-pronged standard:
* Basis of Knowledge: how doe the CI know what he claims? (i.e., how did he get the info?) If the CI's infor mation is sufficiently specific and this specific detail is corroborated by police investigation, the court may infer that the CI had a basis for this knowledge.
* Veracity: Why should the magistrate believe what the informant said? How does he know he can trust this info?
* Credibility: Has the CI provided good info in the past?
* Reliability: Is the CI putting himself in danger by telling?

TOTALITY OF THE CIRCUMSTANCES TEST
OVERRULED AGUILAR-SPINELLI TEST IN FEDERAL COURTS
Case: Anonymous letter sent to police about couple detailing their elaborate drug dealing business - including how they got the pot and the next transaction that would occur; specific detail allowed the judge to believe that the info was reliable; people were bragging of not working, and living high/lavish lifestyle; wife was driving to W. Palm Beach, husband flies down and she is supposed to fly back-Instead they rode back together – but the letter was almost exactly right; police investigated and found only this one discrepancy between what informant said and what happened; based on this, police got warrant and found drugs, weapons, etc. - IL SC ruled search unlawful; US SC reversed
Rule: A warrant application satisfies the Fourth Amendment probable cause requirement so long as it established a substantial basis for concluding that a search will uncover evidence of wrongdoing.
Notes: Allowed judges to deice whether an informant's hearsay established PC by looking at the "totality of the circumstances" disclosed in the affidavit rather than separately evaluating the informant's basis of knowledge and veracity.

Overruled the two prong test as always being required, instead use the Totality of the Circumstances -- CURRENT RULE in FED COURT: TOTALITY OF THE CIRCUMSTANCES: When judging a search warrant based on information from a CI, look at totality of circumstances to determine if there was probable cause, and if so, the search is valid and evidence allowed, if not, suppress the evidence .

TN STILL USES AGUILAR-SPINELLI TEST - SEE JACUMIN

TN TEST FOR CONFIDENTIAL INFORMANT (CI) HEARSAY
TN will still use the two-pronged Aguilar-Spinelli Test, rather than the Totality of the Circumstances Test (Illinois v. Gates, 1983 - which overruled Aguilar-Spinelli Test in Federal Courts)
Case: Anonymous tip about trafficking and drugs. Followed 14 days and never saw anything specific. Police followed him to the county line. Claimed they did enough for totality of the circumstances- two prong was thrown out in Gates.
In TN Constitution Article 1, Section 7- was close to the two-prong test gives us more protection- thereby we have the 2 prong test. BUT if Federal- those extra protections do not apply so it reverts to Totality of Circumstance

In TN, we use the two-prong test because of the TN Constitution, Article 1 Section 7 – our constitution is stricter and gives us more protections, so our test for probable cause is stricter.

TN RULE: Two-Prong test – But what if you’re in federal court in TN? Then it’s the federal rules (not extra TN protections), and Jacumin would go to jail.

Case: Pringle was passenger of car pulled over for speeding.
Rule: The presence of drugs in a car gives rise to probable cause to arrest any occupant who had knowledge about the drugs and exercised dominion and control over them.

IF PC BASED ON FALSE INFO BY AFFIANT, EVIDENCE SUPPRESSED
Case: Petitioner was convicted for rape, burglary, attempted murder. Convicted in court. BUT - Search warrant went beyond 4 corners –went into home and found knife but it was past the time allowed for the issuance of the search warrant. Police officer LIED - provided false information saying he had spoken to informant when he had not. The fruit of his search is inadmissible. (Evidence is suppressed)
Rule of Law: A search warrant must be voided and any evidence obtained by the warrant excluded from admission at trial when a defendant shows that an affidavit in support of the warrant contains an intentional or reckless false statement and when the affidavit does not support a finding of probable cause in the absence of the false statement.
Notes: If probable cause is established in search warrant by using false info., or if it has reckless disregard for the truth, …then those statements get excised from the search warrant affidavit and if probable cause is not established, then the evidence gets suppressed

Case: Officer obtained search warrant based on info of confidential informant. Officer said he had used this informant before with good results. This was not true! The informant could not have been in the home b/c the person did not get home until later.
Rule: If there is a false statement w/ intent to deceive then all is suppressed, even if immaterial to probable cause, if it is reckless you suppress the evidence only if it was essential for probable cause

POLICE SEARCHED WRONG APT, BUT WARRANT HELD AS VALID
Based on tip about McWebb selling drugs, obtained search warrant. Thought there was only 1 unit on 3rd floor. When they arrived they accidentally searched the wrong apartment (Garrison's), and found drugs.
In the eight rules - No 3- warrant describe place to be search - Court held the place was described adequately in warrant
Rule: if warrant is validly issued, but later found to be ambiguous in scope due to a good faith mistake in fact, then the evidence is still admissible.
Rule of Law: A search made under an otherwise valid warrant containing a mistake does not violate the Fourth Amendment if the police acted reasonably.

MUST KNOCK AND ANNOUNCE B4 ATTEMPTING FORCIBLE ENTRY UNLESS EXIGENT CIRCUMSTANCES
Case: Police obtained warrant to search hotel room for drug selling. Requested warrant to be no knock- magistrate deleted this. They knock (announced themselves as maintenance man), chain attached door opens, sees police, closes door. They announce as they are kicking the door in…
Rule: The Fourth Amendment’s reasonableness requirement incorporates the common law rule that police entering a home must knock and announce their identity and purpose before attempting forcible entry, unless exigent circumstances exist and to do so would undermine law enforcement interest.

The state asks for a blanket waiver for this type of situation to not be required to knock and announce

Supreme Court said no blanket waiver of knock and announce
1. Considerable over-generalization
2. Exception would be too easily applied to other cases
They did not agree to allow a blanket exception but allowed in this case due to facts as they occurred.

SEARCH INCIDENT TO ARREST
Case: D.C. metro police officer recognized Robinson driving and knew he didn’t have a license from a stop a few days earlier. Had probable cause to believe he was driving without a valid license and stopped him. Officer made custodial arrest and searched Robinson. Felt something in his coat pocket, pulled out a crumpled cigarette pack and looked inside. Discovered 14 capsules of heroin inside. Heroin admitted at trial where Robinson was convicted of possession of heroin.
Rule: Search-incident-to-arrest – officer gets to search the person and any packages on the person; rule designed for officer safety and to prevent destruction of evidence
When a person is going to be custodially arrested the officer gets to search them – frisk, packages on body, etc.
Notes: Custodial arrest justifies full body search including any packages on the person. Always.
Reason for the rule is officer safety and need to preserve evidence for use at trial.
Dissent: search following custodial arrest should be decided on case-by-case analysis. Police have discretion to arrest or issue citation and arrest may be pretext for full body search. Should limit search to search for weapons since justification is officer safety. Opening cigarette pack unjustified since officer had no reason to believe it contained weapon.

WARRANTLESS ARREST AND BRIEF DETENTION OF SUSPECT CAN BE BASED ON DETERMINATION OF PC BY OFFICER IN THE FIELD
"Although a judicial determination of probable cause would best protect liberty rights, imposing the requirement of a judicial determination prior to arrest would hamper law enforcement activities. As such, we have upheld the warrantless arrest and brief detention of crime suspects based upon a determination of probable cause made by law enforcement officers in the field. "
Gerstein v. Pugh (1975) and County of Riverside v. McLaughlin (1991)
When an officer makes a warrantless arrest based upon the officer’s own determination of probable cause, a neutral and detached magistrate must review the probable cause determination to ensure that the arrest and continued detention of the person is justified.
Generally, a judicial review of probable cause within 48 hours of arrest will satisfy the requirement.
If judicial review is within the 48 hour window the burden is on the individual to show that the delay was unreasonable:
* Delay for the purpose of gaining additional evidence to support probable cause
* Delay motivated by ill will toward the arrested individual
* Delay for no good reason

POLICE MAY ARREST A SUSPECT WITHOUT A WARRANT IF THERE IS PROBABLE CAUSE TO BELIEVE THE SUSPECT COMMITTED A FELONY
See also, Gerstein v Pugh (1975)
Case: Watson was arrested for selling stolen credit cards; informant told a postal inspector Watson had the cards while they were at a restaurant, and postal inspector arrested him – there was no arrest warrant; while being arrested Watson consented to a search of his car; Watson was charged with stealing credit cards from the mail and convicted; the Court of Appeals said the arrest was unconstitutional without a warrant since there was time to get one, and that the search of his car was therefore not voluntary
Rule: Police may arrest a suspect without a warrant if there is probable cause to believe the suspect committed a felony.
Notes: Congress specifically allows postal inspectors to make a felony arrest without a warrant when there is probable cause to believe a felony has been or is being committed.
Historically, the 4th Amendment allows an officer to make a felony arrest without a warrant if there is probable cause to believe a felony has occurred.
4th Amendment also allows for a warrantless arrest for a felony or misdemeanor committed in officer’s presence.
When a warrantless arrest is made, prompt judicial review of the probable cause is required.

WHEN THERE IS PC FOR TRAFFIC STOP, ULTERIOR MOTIVE FOR SEARCHING DOES NOT NEGATE CONSTITUTIONALITY OF SEARCH OR SEIZURE
Case: Plainclothes cops patrolling high drug area see black youths in car which violates several traffic laws. Cops pull up to car at red light and officer approaches driver window to warn driver about traffic violations and sees two large bags of cocaine in passenger’s hands. Driver and passenger arrested and convicted of drug offenses.
Rule: when there is probable cause to stop a person for a traffic violation (or other illegal conduct), the ulterior motive for searching does not negate the constitutionality of the search or seizure.
Notes: Did police have probable cause to believe that driver violated traffic laws?
Did police detain or stop the occupants by approaching the window?
Was this a pretext to investigate for drugs or other illegal activity?
Did race play a role in the stop?

NO SEARCH INCIDENT TO CITATION (TN)
Tenn. Crim. App.
Case: Defendant was convicted of possession of over ½ gram of cocaine for resale, a class B felony and sentenced to serve 16 years as range II offender.
Defendant was passenger in car stopped for no taillights and had an open beer in his lap. The open beer violated city ordinance which prohibited possession or consumption of alcohol in public. He was ordered out of the car, arrested and searched whereupon officer found 1.7 grams of cocaine with no paraphernalia and 5 grams of baking soda.
Rule: Rationale for search incident to custodial arrest exception in order to ensure officer safety and preserve evidence not applicable when issuing a citation.

Officer should have issued a citation – not arrested him; statute says SHALL issue a citation – but there’s no justified search incident to citation
Search incident to arrest – YES
Search incident to citation – NO

A SEIZURE OCCURS WHEN BY MEANS OF PHYSICAL FORCE OR SHOW OF AUTHORITY, GOVT IN SOME WAY RESTRAINS A CITIZEN'S LIBERTY

CASE: officer approached Daniel (and others) who were standing around by a car; asked for his identification and then made him wait while he ran it in the computer. Computer check revealed outstanding warrant for Daniel; officer arrested him and then conducted S.I.T.A. and found marijuana

RULE: Retention of defendant's identification to run a computer warrants check following this consensual police-citizen encounter effectively immobilized defendant, amounting to a seizure.

NOTES: What started out as a consensual encounter with police asking what was going on, turned into a seizure when he asked for his license and ran it in the computer because there was no reasonable suspicion to detain them. Illegal seizure.

3 Kinds of Citizen-Police Encounters:
1. Arrest which requires probable cause.
2. Brief detention which requires reasonable suspicion that the person is engaged in criminal conduct.
3. Consensual encounters that require no justification.
When Has a Seizure Occurred? Answer: When an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.
Test for whether a seizure has occurred is OBJECTIVE TEST BASED ON TOTALITY OF THE CIRCUMSTANCES: Whether a reasonable person would believe that he is not free to decline the officer’s request or terminate the encounter. Does not matter what the officer or citizen subjectively believe. If in doubt, ask “AM I FREE TO LEAVE”.

FOURTH AMENDMENT DOES NOT PROHIBIT A WARRANTLESS ARREST FOR A MINOR OFFENSE
Civil Rights lawsuit against city
TX law requires front seat passengers to wear seatbelt if car is equipped with seatbelts. Violation of the law is a misdemeanor punishable by fine only and officer has discretion whether to issue a citation or make a custodial arrest.
Case: Texas, March 1997, Atwater pulled over for driving pickup truck with 3yo and 5yo – none of them wearing seatbelts (misdemeanor carrying a fine of $25 to $50). Atwater did not have license or insurance docs. Officer arrested Atwater instead of issuing a citation (allowed in Texas). Atwater was booked into jail, brought before a magistrate, and released on bond. She later paid the seatbelt fine and other charges were dismissed. Atwater sued the officer, the police chief, and City of Lago Vista (defendants) under 42 U.S.C. § 1983 claiming that the arrest was an unreasonable seizure under the Fourth Amendment.

WHEN ARRESTING FOR SERIOUS OFFENSE SUPPORTED BY PC, AND SUSPECT IN CUSTODY AT STATION, TAKING A CHEEK SWAB FOR DNA ANALYSIS IS A LEGITIMATE POLICE BOOKING PROCEDURE REASONABLE UNDER FOURTH AMENDMENT
In 2009 King arrested for menacing a group with a shotgun. Routine booking procedure required buccal swab for DNA sample. Codis hit matched DNA to 2003 rape. Tried and convicted of the rape.

All 50 States required the collection of DNA from felony convicts.
TN requires the collection of DNA from arrestees charged with violent felonies.
TCA 40-35-321 (e)
(1)  When a person is arrested on or after January 1, 2008, for the commission of a violent felony as defined in subdivision (e)(3), the person shall have a biological specimen taken for the purpose of DNA analysis to determine identification characteristics specific to the person as defined in subsection (a). After a determination by a magistrate or a grand jury that probable cause exists for the arrest, but prior to the person's release from custody, the arresting authority shall take the sample using a buccal swab collection kit for DNA testing. The biological specimen shall be collected by the arresting authority in accordance with the uniform procedures established by the Tennessee bureau of investigation, pursuant to § 38-6-113 and shall be forwarded by the arresting authority to the Tennessee bureau of investigation, which shall maintain the sample as provided in § 38-6-113. The court or magistrate shall make the provision of a specimen a condition of the person's release on bond or recognizance if bond or recognizance is granted.
(2)  The clerk of the court in which the charges against a person described in subdivision (e)(1) are disposed of shall notify the Tennessee bureau of investigation of final disposition of the criminal proceedings. If the charge for which the sample was taken is dismissed or the defendant is acquitted at trial, then the bureau shall destroy the sample and all records of the sample; provided, that there is no other pending qualifying warrant or capias for an arrest or felony conviction that would otherwise require that the sample remain in the data bank

BREATH TESTS ARE REASONABLE TO DEMAND WITHOUT A WARRANT AS PART OF A LAWFUL ARREST; BUT NOT BLOOD TESTS

CASE: Three cases consolidated involving drunk driving arrests where the state law also allowed for a criminal conviction for refusing breath or blood tests. Historically, refusal to take test resulted in suspension of license.

RULE: Breath tests are allowed without a warrant I.T.A. of DUI but blood tests are not allowed without consent or a warrant becasue they are more intrusive.
Failure to comply with a warrantless blood test shall not subject a person to criminal charges. But the failure to comply with a warrantless breath test shall subject you to civil or criminal charges.
Implied consent laws make up for when motorists refuse to take breath test.

NOTES: Police can always get a search warrant for blood if probable cause exists.
Are breath or blood tests searches under the 4th Amendment? Is a warrantless search allowed?
whether blood and breath testing to determine intoxication qualify as searches incident to arrest and if not, whether they are properly mandated by “implied consent” laws.
Implied consent laws penalize drivers who refuse to undergo testing when there’s probable cause to believe they’re intoxicated. Some penalties are suspending or revoking license, but some take it all the way to making it a crime to refuse to submit to testing after being arrested for driving while impaired.
Search-incident-to-arrest doctrine
To what degree do these procedures violate privacy as a physical intrusion? Breath test: Less than the DNA cheek swab, no more than fingernail scraping; blood test sig more intrusive and can be preserved; the court has ruled up to now to give police officers space to use discretion when searching a lawfully arrested person; court argues here again against a case-by-case approach; requiring search warrants here is impractical ; facts are based on officers observations, too, and field sobriety tests; the test does actually preserve evidence – evidence of intoxication that dissipates as person sobers up.
Holding: Breath tests are reasonable to demand without a warrant as part of a lawful arrest; but not blood tests.

CASE: Federal authorities informed that D was dealing in stamps bearing forged overprints. Secured a warrant for his arrest which was executed at his one-room business office. At the time of arrest, officers searched his desk, safe and file cabinets for about an hour and a half ; they seized 573 stamps with forged overprints; - they did not have a search warrant;

Stamps were admitted as evidence at trial and Supreme Court upheld conviction, rejecting the contention that the warrantless search had been unlawful.

PERMITS ONLY A LIMITED SEARCH OF THE PREMISES INCIDENT TO AN ARREST THEREIN

CASE: Burglary of coins case; wife answers door, D not there, she gives consent to enter, D arrives home and they arrest him inside his own home; they ask for consent to search – they don’t have a search warrant; D says NO!; BUT they search anyway – and they search basically every room – and they find coins, medals, objects, tokens; it was TOO much searching. They searched EVERYWHERE.; Officers lawfully arrested Chimel, but searched without permission and without a warrant; Officers directed D’s wife to open drawers and move contents around for them – they searched the entire house; Search lasted about an hour
Issue: Is a warrantless search of an entire home permissible when the search is incident to a lawful arrest that takes place in the home? No. A warrantless search incident to a lawful arrest can only cover the area in possession or control of the person being arrested.
RULE: Incident to a lawful arrest, a warrantless search of the area in possession and control of the person under arrest is permissible under the Fourth Amendment.
NOTES:
Issue: Can Police officers conduct a warrantless search of the entire home incident to an arrest?
The given: lawful in-home arrest – they had an arrest warrant – not a search warrant
The court looks at Rabinowitz case (1950) – that court says it’s not about the warrant, it’s about if the search was reasonable – but this was an office back in 1950 – not a whole home in 1969
Agnello case , Harris case
You cannot search an entire home –
RULE: a valid arrest in a home , incident to an arrest (no search warrant), Police officer can search a person, and the immediate area within the person’s control (grab a weapon; grab evidence and destroy it); without a search warrant – only the person and area immediately around

WARRANT USUALLY REQUIRED FOR AN IN-PREMISES ARREST - ABSENT EXIGENT CIRCUMSTANCES, GET A WARRANT

CASE: two cases combined. Payton: they entered his home w/o warrant and seized evidence (he wasn’t home) Riddick: entered home, arrested, and searched drawers w/o warrant.
– detectives broke into Payton’s apt without a warrant and took evidence (shell casing)
– detectives entered Riddick’s apt (young son opened door) and took evidence with no warrant.
– NY Ct of Appeals, in a single opinion, affirmed both convictions.
– Both cases of routine arrests with ample time to obtain warrants (no exigent circumstances)
– Both had probable cause to arrest
– Both cases entry without consent

RULE: Absent exigent circumstances, the police may not enter a person’s home to make an arrest without a warrant. The police cannot make a warrantless and nonconsensual entry into a suspect's home to make a routine felony arrest. (unless exigent circumstances exist.) and therefore there is no S.I.T.A.

NOTES: there was probable cause for the arrest and that he was there but you can’t make an arrest in a person’s home without a warrant. If they HAD a warrant based on probable cause then YES they can go to the home if there is reason to believe the suspect is within.
appears before US Supreme Court that is fairly balanced Rep Dem appointees. The court combines two similar cases into one opinion on this issue
Facts Review
What are the givens? This is important to focus in on the issues -
• No exigent circumstances (an emergency – something has to be done or else evidence destroyed)
• They had probable cause
• Police had authority
• It is the defendant’s home (expectation of privacy)
• NO WARRANT – but they had time
Doesn’t matter if they come in to search you, your stuff or arrest, your home is constitutionally protected.
Issue: Can police officers enter a home to make an arrest without a warrant?
Holding: an arrest warrant founded on probable cause implicitly carries authority to enter the home of the defendant when there is reason to believe the suspect is within – they didn’t have a warrant, so their entry was unconstitutional and decision reversed – evidence gathered not admissible; there is no need to prove probable cause the D is home if you have an arrest warrant

Ruling – get a warrant unless there are exigent circumstances – what dissent says doesn’t make the rule – it can inform where the law might go in the future, but it’s not the rule – and it’s not the answer on the exam question!

POLICE MAY CONDUCT A PROTECTIVE SWEEP OF A PREMISES BASED ON REASONABLE SUSPICION THAT OTHER PEOPLE WHO POSE A THREAT ARE IN THE BUILDING

CASE: The police obtained an arrest warrant for Buie for an armed robbery of a restaurant and executed the warrant at Buie’s home. Upon entering the home, the officers spread out to find Buie. One officer proceeded to check the basement and, with his gun drawn, shouted down the basement stairs for anyone down there to come out. Eventually, Buie emerged and he was arrested. Another officer then went into the basement to ensure no one else was present who could pose a threat to the police. In the basement, and in plain view, the officer noticed a red running suit that matched the description of what the thief was wearing when the restaurant was robbed. At trial, Buie’s request to suppress the running suit was denied.

RULE: Incident to an arrest, the police may conduct a protective sweep of a premises based on reasonable suspicion that other people who pose a threat are in the building, provided the search is limited to those areas where a person may be hiding.

NOTES: The protective sweep is limited to areas where people could be hiding; and it lasts no longer than necessary to dispel the reasonable suspicion. However, incident to a lawful arrest, and without probable cause or even reasonable suspicion, the police may search areas of the premises immediately adjoining the place of arrest where someone posing a risk to the police could be hiding. While the unwarranted search of a home is generally unreasonable under the Fourth Amendment, the balancing test applied in Terry v. Ohio, 392 U.S. 1 (1968), is applicable here. In that case, it was held that the police may conduct a cursory search for weapons when they stop a citizen on the street, provided there is reasonable suspicion to believe that the person is armed. In Terry, the officer had to ensure that the man he stopped on the street was not armed, and here the officer must ensure that there is no one else in the house who may attack him. Like in Terry, the concern about officer safety outweighs the subject’s privacy interest and justifies a warrantless search. This holding is consistent with Chimel v. California, 395 U.S. 752 (1969). Chimel held that the police may search the area in the immediate control of an arrestee where he may access a weapon or destroy evidence. Similarly, a protective sweep is a limited search of potential hiding places. A more extensive search is permissible only when there is reasonable suspicion based on articulable facts.

A TEMPORARY SEIZURE IS LAWFUL IF IT IS SUPPORTED BY PC, LIMITED IN NATURE, AND TAILORED REASONABLY TO SECURE LAW ENFORCEMENT NEEDS WHILE ALSO PROTECTING PRIVACY INTERESTS

CASE: On April 2, 1997, McArthur asked two police officers to accompany her back to her trailer home so that she could remove her belongings. She needed the officers to help her keep the peace with her estranged husband, Charles (defendant). When they arrived at the trailer, the husband was at home. The officers remained outside while McArthur went inside. When she came out McArthur spoke to one of the officers, Chief Love, and suggested that he search the trailer because she said Charles had “dope” inside. She told him that her husband kept it under the couch. When Love knocked on the trailer door and told Charles what the wife had said, asking whether he could come in, the husband said no. Love then sent the other officer and McArthur to get a search warrant. When Charles was with Love on the porch, Love told the husband that he could not reenter the trailer unless a police officer went with him. The husband went inside the trailer two or three times (for cigarettes and to make a phone call), and each time, Love stood just inside the door to observe what the husband was doing. The second officer returned two hours later with the search warrant, and they and other officers searched the trailer home. They found a marijuana pipe under the sofa as well as marijuana itself. They arrested Charles. At trial, Charles tried to suppress the pipe and other drug-related objects as the “fruits” of an unlawful search. The trial court granted the husband’s motion. The Appellate Court of Illinois affirmed, and the Supreme Court of Illinois denied the state’s petition of leave to appeal. The United States Supreme Court granted certiorari.

Issue
Is a temporary seizure lawful if it is supported by probable cause, limited in nature, and tailored reasonably to secure law enforcement needs while also protecting privacy interests?

Holding and Reasoning (Breyer, J.)
Yes. A temporary seizure is lawful if it is supported by probable cause, limited in nature, and tailored reasonably to secure law enforcement needs while also protecting privacy interests. Since they were informed by the wife about the nature and location of the drugs, the police had probable cause to believe that the husband had illegal drugs in the house. Certainly, the police, who told the husband what the wife had said about his possessing drugs, had good reason to believe that the husband might try to destroy the evidence before a search warrant could be procured. Moreover, the police acted reasonably in neither searching the house nor arresting the husband, but only restraining the husband from entering until the search warrant could be delivered. Such a compromise represents a reasonable balance of law enforcement needs and privacy interests under the Fourth Amendment. In reviewing our case law, we noted previous cases where the police effected seizures lasting 19 hours or more. Compared with these, the seizure in question, which lasted a mere two hours, seems limited in nature and negligible in effect. Importantly, the temporary seizure was reasonably tailored to the situation, since the police did not remove anything or arrest the husband. The police even let the husband enter the trailer, but observed him accordingly so that he would not remove any evidence. For the foregoing reasons we find the temporary seizure reasonable under the Fourth Amendment. We reverse the decision of the Appellate Court of Illinois and remand.

SEARCH WARRANT IS EXCUSED ONLY IN THE EVENT OF EXIGENT CIRCUMSTANCES

CASE: Drug sting op at Lexington KY apt complex; D sells drugs and walks around corner into breezeway into one of two apartments; police follow and knock on apt door where they smell pot; knock and announce; hear rustling; kick in door and arrest King – he wasn’t the person they were following

RULE: The exigent circumstances rule to the Fourth Amendment allows law enforcement officials to lawfully gain entry into a residence without a warrant after first knocking at the front door and announcing their presence in an attempt to prevent occupants from destroying evidence.

NOTES: Justice Alito – very conservative (Bush -appointed)
If Exigent circumstances – then Police officers can search; But they’re saying it’s a given that POs were telling truth
– Addresses the so-called “police-created exigency” doctrine of lower courts (that police may not rely on the need to prevent destruction of evidence when that exigency was created by conduct of police)
– Police forcefully entered wrong apartment after knocking with probable cause being smell of marijuana and shuffling noises
– There is no clear approach to practically applying a test of police-created exigency
– Many reasons why it would be impractical to apply a standard like “reasonably foreseeable” in law enforcement situations
– Impossible to regulate how loud to knock or with what tone of voice to announce
An officer is free to knock on a door as is any other private citizen. A Court-created rule that would dictate to police officers how forcefully to knock on a door and how loudly to announce their presence is unreasonable. The Court sees no evidence that the officers violated the Fourth Amendment prior to entering the apartment. The judgment of the Kentucky Supreme Court is reversed and the matter is remanded for further proceedings consistent with the opinion.
Issue: what is the standard for a police-created exigency? Not okay for police to create exigency when they have bad faith (they hear a rumor; have a phone number and call anonymously to say “hey the cops are coming” – making people do something out of bad faith);
We are not going to hold the police to a standard of reasonable foreseeability;
We are not requiring probable cause PLUS time to secure a warrant – Why? Police might be able to get consent by asking; police might want to see if they can get more evidence or probable cause by knocking and talking; will not

RULE: it is not considered by the court to be an illegal police-created exigency where there is no actual or threatened Fourth Amendment violation – this court says the defendants created the exigency by all the shuffling and evidence hiding noises.

This case talks about Illinois vs McArthur

AUTOMOBILE EXCEPTION TO THE FOURTH AMENDMENT WARRANT REQUIREMENT ESTABLISHED

CASE: prohibition agents were found to have probable cause to search the defendant’s car for contraband liquor. The agents discovered hidden contraband by ripping out the upholstery of the car’s seats. The court concluded that probable cause would have supported the issuance of a warrant authorizing a search of the upholstery and, therefore, that the upholstery fell within the scope of a constitutionally permissible warrantless search.

MOTOR HOME THAT'S READILY MOVABLE AND LICENSED TO TRAVEL CAN BE SEARCHED WITHOUT A WARRANT UNDER AUTOMOBILE EXCEPTION - PERMITS PC SEARCH OF VEHICLE WITHOUT A WARRANT

CASE: DEA received tip that D selling marijuana for sexual favors from mini motor home parked in lot downtown San Diego. Surveillance; Carney, and youth go inside 75 minutes; youth leaves, confront; Carney gave marijuana for "sexual contacts"; got youth to knock on door; Carney steps out PO goes in and finds drugs, scales;

RULE: A motor home that’s readily movable and licensed to travel may be searched under automobile exception; permits Probable cause search of vehicle w/o warrant

NOTES: They refer to Carroll when the motor vehicle exception was established (1925) – when a vehicle can be readily moved, it can be searched ;
Reasons for the auto/vehicle exception:
1) vehicles can be quickly moved – e.g., to evade police or to move to a different jurisdiction (even if they had a warrant, it would no longer be good)
2) also, today, there is a much lower expectation of privacy in highly regulated and controlled vehicles (as distinct from a home or office); items are in plain view; ;you have to have a license; some vehicles have to be weighed and inspected; etc.
Maryland v Dyson said exigency not required to search car – but you need probable cause; Florida v White car can be seized without a warrant when it’s contraband (used in a drug conspiracy, for example) ; in this case it might be that the govt wants to keep the car (it can be evidence or it can be sold if it’s proven to be contraband – or even put into use for police); in TN seizing agency can keep proceeds (this forfeiture law can easily be abused);

It would have been different if it was parked in a trailer park and more permanently parked – wheels blocked, parked permanently;

REASONABLE POLICE REGULATIONS RELATING TO INVENTORY PROCEDURES ADMINISTERED IN GOOD FAITH SATISFY THE FOURTH AMENDMENT.

CASE: D arrested for DUI; during inventory of vehicle before impoundment, found backback with cocaine and cash; no PC to search for evidence of DUI; now charged; Gets dismissed at trial pursuant to CO constitution; then CO Supreme Court dismissed pursuant to US Constitution; now SC review

RULE: Reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment.

NOTES: Court references SD v Opperman – allowed inventory searches for three reasons without a search warrant:
1) protect owner’s property
2) insure against claims of lost/stolen/vandalized property (e.g., by owner)
3) guard police from danger
In Illinois v Lafayette, they let them search a shoulder bag; Here - the SC says they were following Police procedure and the search – reasonable police regulations administered in good faith – it’s okay to do this, even if there are equally reasonable procedures;

PERMITS WARRANTLESS SEARCHES OF CONTAINERS FOUND IN AUTOMOBILES PROVIDED POLICE HAVE PROBABLE CAUSE THAT THE CONTAINER CONTAINS CONTRABAND

CASE: Daza picked up package from FedEx that police knew was marijuana ; police followed and saw Acevedo leave Daza’s apt with a brown paper bag that he put in trunk and drove off; they stopped him, opened trunk, found bag, opened it, -- no search warrant and no consent to open the bag; they arrest Acevedo;

RULE: Police may search an automobile if they have probable cause to believe that there is evidence in there and not only in there but in closed containers.

NOTES: The scope of this warrantless search is defined by object of the search and places in which there is probable cause where it may be found.
From a footnote: U.S v Jones (1985)- where officers watch trucks go from planes. They searched w/o warrant. They had PC to search the entire planes but only searched containers. Search would’ve been sustained.

This is about probable cause search without arrest prior to search –
Court cites US v Ross (1982): authorizes any area to be searched where evidence might be found (concealed) including a search of car’s compartment’s or container with probable cause (no warrant) – if PC, can search and probe anywhere that could conceal (like drugs)
Chadwick (1977) – held that warrantless search of a foot locker that was locked violated 4th amendment (back when people put locks on their luggage and had an expectation of privacy); more expectation of privacy in a locker or luggage and just because you put it in a car doesn’t change that;

Court says that Carroll governs Ross whereas Chadwick governs Arkansas v Sanders (extended Chadwick rule to suitcase in a car trunk)
• Carroll – PO have probable cause to search vehicle
• Chadwick – PO have probable cause to search container
Does Fourth Amendment require warrant to search a bag in a vehicle – here they say no – that PO have probable cause to search bag in trunk;
NEW RULE in 1991 (HERE): Police may search car and containers where they have probable cause to believe contraband is contained – this rule expanded search and lessened 4th amend protection – easier rule for cops – they can now search with any probable cause
United States v Johns 1985 (p. 245) – customs agents saw packages that looked like wrapped MJ, seized trucks, and searched –

EXTENDS THE AUTOMOBILE WARRANT EXCEPTION TO ALLOW SEARCH OF PASSENGERS' BELONGINGS ON PROBABLE CAUSE (AFTER DRIVER’S MISCONDUCT)

CASE: Wyoming HP stops David Young for speeding and faulty brake light; officer talks to driver and sees syringe in shirt pocket; he has backup officers watch car, goes to get gloves, and comes back, gets Young out of car, and Young says the syringe is to take drugs; officer gets two female passengers out and they search car, took purse out searched it, and found 2 items, one with a small amt, 1 with a large amt; at trial she says the small amount was hers, not the larger amount – they must have put it in my purse; jury convicted her;

RULE: Where an officer has probable cause to search a car, he may search containers that belong to a passenger in the car if the containers could possibly contain the object of the search. (The warrantless search of a passenger's container capable of holding the object of a search for which there is probable cause is justified under the automobile exception as an effect of the car.)

NOTES: Supreme Court said she had only small expectation of privacy in a car; Can officers search everything in the vehicle even if it doesn’t belong to driver? Why does a passenger in a car have a reduced expectation of privacy?
1) cars seldom serve as a repository for personal effects – we don’t keep personal stuff in our cars for safekeeping
2) cars often subjected to police stops
3) if you have a wreck and all your stuff is everywhere, there’s no expectation of privacy – all contents open to public scrutiny
United States v Di Re: PC search of a car not equal to a body search of passenger
Ybarra v Illinois (1979): ???
Wyoming extends the automobile warrant exception to allow search of passengers belongings' after driver’s misconduct (not the passenger, but her stuff)

They can search everything in the car including purses belonging to passengers. BUT - not search the persons. When there is probable cause it extends the automobile exception and based on drivers conduct. Because a car is not a safe box or a depository as he put it and are subject to police stops etc.

POLICE CAN SEARCH VEHICLE I.T.A. WITHOUT A WARRANT ONLY IF ARRESTEE UNSECURED AND WITHIN REACHING AREA, OR FOR EVIDENCE OF CRIME OF ARREST

CASE: Suspended Drivers license (SDL) – he gets arrested for driving; they arrested him and put him in the back of car; and then they search his car and his jacket where they find weapon and cocaine;

RULE: okay to search without a warrant if within reach OR for evidence of crime of arrest

NOTES:
SITA = search incident to arrest case as it applies to vehicles; The court looked at
* Chimel case: PO may search incident to arrest may search area within arrestee’s control
* Belton case: it was interpreted that the interior of a car was always within the immediate area
* Thornton case: Thornton parked car and was out of it when PO came up – he wasn’t even in the car – he was arrested outside the car, but they searched anyway and found narcotics. Rule here expands Belton to “recent occupants” of car
Holding: POs can search a car without a warrant ONLY WHEN arrestee is unsecured and in reaching area; Or it’s reasonable to believe search would produce evidence of the arresting offense;

Here, they did not have evidence to search for since he was only under arrest for driving with SDL
If they have a reason to believe they might find evidence of something he’s arrested for, then they can.

GET A SEARCH WARRANT FOR A CELL PHONE UNLESS EXIGENT CIRCUMSTANCES

CASE: Two cases –
1) Arrested on weapons charged, seized smartphone, found photos and videos on phone evidence of recent shooting
2) watched D do a drug sale, flip phone showed address, they went there

RULE: Search warrant required to search a cell phone except in exigent circumstances i.e. will be used to detonate a bomb or reveal a child abduction.

NOTES: SC ruled there’s no precise guidance on flip phones or smart phones – privacy interest vs govt interest; greater privacy rights because of vast amounts of info stored – whole life on the phone; once officers secure the phone there’s no physical threat so they should get a warrant unless the phone itself poses a specific threat (bomb?); they said there’s easy ways to protect phone from being destroyed; here they said you can’t search the cloud ; but all on the phone ?

BRIEF STOP AND LIMITED FRISK FOR WEAPONS ON REASONABLE SUSPICION (LESS THAN PC)

CASE: 3 men were acting suspicious and their conduct led a PO of 20 years experience to believe they were casing a store to burglarize it. PO approached them, questioned, and then did a frisk to discover 2/3 men had weapons, which he seized.

RULE: When an officer observes unusual conduct that reasonably leads him to assume that criminal activity is afoot and that the people he is interacting with are armed, the police officer may conduct a limited search for weapons.

NOTES: Terry moved to suppress evidence stating it was an illegal search.; Trial court denied it.; Court of Appeals affirmed trial court.; Supreme Court held it was reasonable and in similar situations like this the evidence is admissible and does not violate the 4th amendment.
Court held:
1. Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous and it was necessary to protect himself and others to take swift measures to discover the facts and neutralize the threat of harm.
2. He restricted his search to only what was appropriate, i.e. the discovery of weapons.
3. The unusual conduct of the 3 men led him reasonably to believe, in light of his years of experience, that criminal activity may be afoot.
4. After his initial inquiries of the men it did not dispel his suspicion and he correctly searched the men.
5. This is a reasonable search under the 4th amendment and any weapons seized my properly be introduced in evidence.
Terry stops are allowed before a crime or after a crime if there is reasonable suspicion to believe the person was involved in a crime.
This case created a limited exception to probable cause allowing police to briefly detain and search for what is applicable per case. In this case, it was weapons.

Terry stop weighs govt interest against personal privacy interest
• What is the government interest?
o Safety of officers preventing and solving crimes
o Effective crime prevention and detection
o Apprehend criminals after a crime occurred –
While probable cause is necessary to arrest, reasonable suspicion will allow police to briefly detain a person to investigate whether he is the person who committed the crime
• Briefly seize personal effects to investigate whether they contain contraband or evidence of a crime
• Can also search after a crime
Terry Frisk – safety of officer and nearby people
Individual privacy interest
• Not be detained in front of the world while going about business
• Not be subject to having police officer feel all over the body while standing helpless in front of the world
• By balancing the government interest against the citizen’s interest and relying on the “against unreasonable searches and seizures” clause of the 4th Amendment, the Court created an objective test based on the totality of the circumstances that allows a brief detention when reasonable suspicion exists.

Language for the objective test:
Whether officer had specific and articulable facts, which taken together with rational inferences from those facts, reasonably justify the intrusion.

Would the facts available to the officer at the moment of the seizure or search allow a person of reasonable caution to believe the action taken was appropriate.

Judge will review the police conduct using this standard.

A SEIZURE MAY BECOME ILLEGAL IF IT LASTS TOO LONG; CONSENT NOT VALID IF GIVEN WHILE ILLEGALLY DETAINED

CASE: Royer stopped in airport because he fit the "drug courier profile" - he had bought a one-way ticket from one big city to another under a fake name; Royer gave agents his ID and ticket; they kept docs and asked him to come to a small room - he did; without Royer's consent officers retrieved his luggage; he did not answer when they asked for consent to search luggage, but he unlocked a suitcase - drugs found.

RULE:
(1) Under the Fourth Amendment, police officers cannot move a suspect to another location during a Terry stop without a legitimate law enforcement purpose, such as ensuring the safety and security of the officers and the suspect.

(2) Under the Fourth Amendment, a suspect's consent to a warrantless search is invalid if the suspect was illegally detained at the time it was given.

NOTES:
Whether the police had specific, articulable suspicion to justify a brief seizure of Royer and his luggage?
Whether the seizure exceeded the scope of a permissible Terry stop and became a full-blown 4th Amendment seizure which required probable cause?
* Investigative detention must be temporary and last no longer that is necessary to effectuate the purpose of the stop.
* Investigative methods should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.
* State bears burden of showing that the seizure was sufficiently limited in scope and duration.
Royer was seized when officers took his ID and ticket and moved him to the police room…. Show of authority and reasonable person would not have felt free to leave. Officers had his luggage when he “consented” to the search.
* A seizure may become illegal if it lasts too long. How long is too long?

Police may briefly seize and detain personal property when they have specific, articulable facts to justify a reasonable belief that the personal property contains contraband or evidence of a crime.
The 90 minute detention of the luggage exceeds the amount of time for a brief detention.

AN ANONYMOUS TIP ABOUT SOMEONE CARRYING A GUN DOES NOT JUSTIFY A STOP AND FRISK UNLESS IT POSSESSES "SUFFICIENT INDICIA OF RELIABILITY" TO CREATE REASONABLE SUSPICION

CASE: Anonymous caller reported to police that young black male standing at specific bus stop wearing a plaid shirt was carrying a gun.

RULE: An anonymous tip that a person may be carrying a gun does not justify a stop and frisk under the Fourth Amendment unless there is additional corroboration to ensure that the tip has "sufficient indicia of reliability" to create a reasonable suspicion justifying a stop.

NOTES: Police responded and found 3 black males at bus stop, one wearing plaid shirt. Officers stopped and frisked J.L. - found gun and seized it. Hearsay might be sufficient for reasonable suspicion if some police corroboration exists. For example, predictions of future movements corroborated by police.
Is hearsay enough for reasonable suspicion? The only information they had was from an anonymous tip. They had no reason of their own to be suspicious.

Anonymous tips are judged more harshly. They seldom demonstrate the informant’s basis of knowledge or veracity.

UNPROVOKED FLIGHT CAN AMOUNT TO REASONABLE SUSPICION, JUSTIFYING STOP AND FRISK

CASE: From a four-car caravan of police cars patrolling a high crime area, a PO makes eye contact with someone in the street who then takes off running. Police chase and catch him, conduct pat down, find and seize a handgun.

RULE: A police officer may stop and frisk a citizen on the street when he has reasonable suspicion that the person is armed and may pose a threat to the officer.

NOTES: The police had reasonable suspicion to justify the stop because nervous, evasive behavior, like fleeing a high crime area upon noticing police officers, is a pertinent factor in determining reasonable suspicion to justify a stop. Reasonable suspicion is based on the totality of the circumstances.

POLICE ENCOUNTERS IN CONSTRICTED AREAS (E.G., BUS SWEEPS) ARE NOT AUTOMATICALLY SEIZURES BECAUSE INDIVIDUAL VOLUNTARILY PLACED SELF IN A CONFINED AREA.

CASE: Police boarded Greyhound bus at a scheduled stop; Three police officers boarded bus after driver departed with passengers’ tickets and one officer stood at the front, one at the back and one went row to row asking passengers about their travel plans, their luggage and for permission to search luggage or their persons. Brown and Drayton were sitting together and when asked, indicated one bag for both of them in the overhead compartment. They gave permission to search it and nothing was found. Officer noticed they wore heavy coats and baggy pants and asked permission to search Brown. Brown consented and 483 grams of cocaine was found strapped to his thighs. Drayton was asked and consented and 295 grams of cocaine was found strapped to his thighs.

RULE: The police may request consent to search a person, even if they have no basis for suspecting that individual of illegal activity, and the citizen is not subject to a Fourth Amendment seizure if a reasonable person would feel that he is free to leave.

NOTES: Were they seized?
Seizure: To justify a seizure police must have specific and articulable facts to justify belief that person is engaged in illegal activity. Whether a seizure has occurred is an objective test based on whether police use physical control or force so that a reasonable person would not feel free to leave or terminate the encounter with police? If they were seized then the argument would be that the consent to search was the product of the illegal seizure.

OFFICERS NEED NOT SPECIFICALLY INFORM A CITIZEN OF HIS RIGHT TO REFUSE CONSENT