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ARRESTS, SEARCHES, AND SEIZURES

The Fourth Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I NTRODUCTI ON TO THEF OURTH AMENDMENT 1. Protected Areas & Interests: When is the 4th Amendment Implicated? 1. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 2. Purpose of each clause a. Reasonableness Clause: what amendment seeks to prohibit. i. Who is covered; ii. What is covered; iii. Nature of protection. b. Warrant Clause: what is required for warrant to be issued (probable cause). c. Particularity requirement: particularly describing, form of warrant itself. 3. “Secure in your person” a. Physical bodily integrity – D’s body as whole, e.g., when he is arrested and interior of D’s body. b. Personal information; c. Privacy interests; d. Possessory/property interest – exterior of D’s body including clothing and belongings; e. Liberty interest in going about your business. 4. “Person, houses, papers and effects” a. “Houses” – virtually all structures that people commonly use as a residence, including offices stores, etc. b. “Papers” – personally items like letter, diaries, business records. c. “Effects” – broad, catch-all class, construed broadly to include things that had counterparts in 1791. 5. “Searches and seizures” a. Search – just looking through it, rummage in somewhere. b. Seizure – grab, touch, maybe holding (detention). 6. “Unreasonable” – How do we determine what is reasonable? a. Government interest vs. degree of intrusion.

i. Even when government interest > degree of intrusion, still need to ask whether there are certain police methods that are off limits. ii. Deterrence as a viable rationale. b. Police methods – least intrusive? How much deference? These methods that are off limits – why? i. Because we don’t do this here. Not just intrusive, but intrusive and harmful to society (torture). c. Reasonableness rule vs. standard: reasonableness is an under/overinclusive standard. 2. Protected Areas and Interests: Enhancing the Senses through Technology and the Return of Trespass 1. Preliminary question for the 4th amendment analysis: a. Is this a search or seizure? b. Is there a security interest implicated here? 2. Trespass doctrine (pre-Katz): when police physically trespass on your person or property, the 4th amendment is implicated. Katz removed it. 3. Katz v. United States (1967): government eavesdrops phone booth conversation by installing a special device. a. What a person seeks to keep private may be constitutionally protected, even in a public space. i. The 4th Amendment protects people, not places. b. Getting rid of trespass doctrine: remove “physically”; 4th Amendment doesn’t care about the presence or absence of physical intrusion. c. Test: i. Subjective expectation of privacy; ii. That expectation is one that society is prepared to recognize as objectively reasonable. iii. If you don’t have subjective expectation, is there no 4th Amendment protection? 1. There still is. 2. Smith v. Maryland (1979): the court put more weight on the objectively reasonable part of the test. th 4. The 4 Amendment interests beyond privacy – also cover property and liberty interests. a. US v. Place (1983): 90 minutes’ detention of luggage is unreasonable search, deprived him of possessory interest in luggage and liberty interest in time. b. Soldal v. Cook County (1992): unlawful eviction disconnecting P’s trailer home from utilities/hauling away. 5. Sence-enhancing technology a. Court adopts Kyllo test for technology case in home. i. Kyllo v. US: Use of thermal-imaging device aimed at private home from public street to detect amounts of heat within home constitutes “search” by obtaining: 1. Sense-enhancing technology; 2. Info regarding interior of home;

3. Such info couldn’t otherwise have been obtained without physical intrusion into constitutionally protected area, constitutes search; 4. Technology in question is not in general public use. a. In home, all details are intimate details. b. If it’s in public use, might not have protection that Kyllo provides. 5. Scalia write this and doesn’t like Katz because it has no foundation in the text of the 4th Amendment, allows judges to be self-indulgent and is unworkable. ii. What impact does advancing technology have on 4th Amendment protections? 1. If it’s all about whether you expect privacy, as technology advances, we will come to expect less and less privacy. Takes away some of the relevance of the “subjective expectation” requirement. 2. House is the minimum expectation of privacy that the 4A protects. 3. All details in the house are intimate details. iii. It is a search if: 1. By sense-enhancing technology; 2. The government obtains any information regarding the interior of the home. 3. That couldn’t otherwise have been obtained without physical intrusion into constitutionally protected area. 4. If, as here, the technology in question is not in general public use. b. Technology in constitutionally protected area (not home) i. United States v. Jones: installation and use of GPS tracking device for 28 days constituted search. 1. Scalia: Jones had no reasonable expectation of privacy in underbody of Jeep, but where government obtains info by physically intruding on constitutionally protected area, search has occurred. a. Requirement: i. Physical trespass; ii. Attempt to find something/obtain info. 2. Alito: would exclusively apply Katz test. a. Reasonable people wouldn’t have anticipated government tracking them for 28 days – conflates reasonableness with implication of 4A. 3. Sotomayor: secrecy isn’t a prerequisite for privacy; people reveal a lot of information now. 4. Concurrence: Trespass relies on physical intrusion, but changing technology makes that less relevant and obsolete. ii. Grady v. NC: government agents installed GPS device on the bottom of a jeep in a public parking lot. 1. Wearing a tracking device at all times is a search. 2. Scalia basically applies the trespass test here.

a. There is a physical trespass (“physically occupied private property”) b. There is intent to find something or obtain information. 3. It’s a search when you attach a device to a person’s body, without consent, for the purpose of tracing that individual’s movement. iii. Florida v. Jardines: drug-sniffing dog outside of a house. 1. Using trained police dogs to investigate home and its immediate surround (curtilage) is “search.” 2. Standard for whether it is a search: a. Is it a constitutionally protected area? Yes – curtilage. b. Was this an unlicensed physical intrusion? Yes. 3. The Probable Cause Standard 1. What is probable cause? a. A standard based on totality of the circumstances. b. Illinois v. Gates: fair probability that evidence or contraband will be found. i. Facts: Partially corroborated anonymous tip about drug trafficking family case, warrant, search. ii. Is there a probable cause to support a warrant? iii. Holding: Yes, there was sufficient probable cause for a warrant to be under TOC there was a substantial basis to conclude that search with evidence of wrongdoing. 1. Overruled the Aguilar 2-prong test: veracity and basis of knowledge. 2. TOC: Magistrates need a substantial basis for probable cause to issue warrant. 3. Aguila remains relevant to TOC but no longer a singular test. iv. Probable cause is a commonsense, non-technical, fluid concept. 1. Turns on the assessment of probabilities 2. More than a hunch, but less than beyond a reasonable doubt. 3. More flexible probable cause standard encourages recourse to the warrant procedure a. If warrant affidavits are subject to intense, hyper-technical scrutiny, police may turn to more warrantless searches and hope they can find an exception later. b. Having a warrant reduces the perception of unlawful or intrusive police conduct c. Too rigorous of a probable cause standard also eviscerates the use of anonymous tips, which fails to serve the government interest in preserving security c. Maryland v. Pringle: reasonable ground for the belief of guilt. i. Facts: 3 dudes in car. Cops see cash in car and search car, finding drugs. All 3 arrested. ii. Holding: PC for arrest all 3 existed because reasonable inference that any or all three had knowledge and possession of cocaine. iii. Reasonable grounds to believe: 1. Crime was committed. 2. It was committed by D.

3. “PC not undercut or avoided by simply pointing to fact that coincidentally there exists PC to search or seize another.” 4. Distinguish Ybarra bar case: car passengers are more likely to be in common enterprise than customers of a bar. d. Necessary for both warrants and warrantless searches (4th only mentions PC for warrants, but if warrantless searches had less stringent justification requirement, no incentive to try to get warrants. 2. Purposes of determining PC a. Necessary for warrants to issue. b. Necessary for warrantless search and seizure 3. Totality of the circumstances analysis a. Time of day/night, suspects’ actions – People v. Flores b. Bad area – U.S. v. Davis. c. Police experience – Commonwealth v. Dunlap i. Training and experience without more, is not fact to be added to quantum of evidence to determine if PC exists, but rather a lens through which courts view quantum of evidence observed at scene. 1. We don’t allow gut reactions/decisions to be the only/main reason for PC determination. ii. Police are permitted to make arrests and searches without first obtaining a warrant. BUT the search or seizure must not be unreasonable (4A language). Must still have probable cause for warrantless arrests and seizures. d. Whether you know or are involved in activity i. Pringle: People in car together involved in common enterprise (all know each other) ii. Only proximity isn’t enough. e. Number of people and its relationship to probability i. E.g., what if there are 3 suspects on scene and 1 is guilty? May officer arrest all? f. Race i. Implicit bias: vast majority of all Americans associate black Americans with negative adjectives  disproportionate drug arrests. g. Type of crime – matters for exigency, bomb v. marijuana. h. Where information came from i. Informants 1. Veracity – informants must either be credible person or his information must nevertheless be reliable. a. Record with police of reliability. b. Statement against on penal interest. 2. Basic of knowledge – how did informant get information? a. Personal experience. b. Level of detail. c. Did informant have access to information that could not have been guessed? 3. Police have to verify facts/corroborate info informant gave to find PC. ii. Confidential informants and anonymous tips treated differently than victim statements.

1. Can hold confidential informants accountable – if witness lies, then can charge him with false statements. 4. Duty of reviewing court is to ensure magistrate has substantial basis for believing police and PC: a. Must believe police had reasonable ground for believing. b. More deference to magistrate than cop. c. Magistrate cannot have relied on bare conclusory statements or judgments of police officers. Need specific and concrete facts. d. Anticipatory warrants are okay: warrants that contain some triggering condition. i. Magistrate must determine: 1. Is it now probable? 2. The contraband, evidence of a crime, etc., will be on the described premises. 3. When the warrant is executed. ii. To satisfy probabilistic probable cause standard for anticipatory warrant, it must be true that: 1. If the triggering condition occurs, there is a fair probability of finding what you are looking for. 2. There is probable cause to believe the triggering condition will occur. iii. Anticipatory search warrant issued upon affidavit indicating delivery of package containing child porn would later be made to D’s residence and warrant would thereafter be executed. 1. Anticipatory warrants no different in principle from ordinary warrants. 5. How would defense argue there’s no probable cause for search: a. Break down the prosecution’s snowball of factors and make each one less convincing. b. Can’t use bad neighborhood as ground for search (proximity) i. Ybarra: informants told police he observed tinfoil packets of heroin behind bar on bartender. Warrant for search of tavern issued; 9-13 customers patted down and heroin found on Ybarra. 1. People’s mere proximity to others independently suspected of criminal activity alone doesn’t give rise to PC. c. Conclusory statements by informants or officer not enough for pC i. Magistrate shouldn’t consider officer’s assertion that he has cause to suspect and does believe that seizable articles will be found in particular places, unless other officer provides reasons for belief – Nathanson, Aguilar. d. Need particularized reason for thinking this specific car has drugs – can’t just be “neighborhood is bad and I have a gut feeling.” 4. Search Warrants 1. For search to be valid under 4th Amendment: a. Must be issued by a neutral and detached magistrate. i. Capable of determining probable cause ii. Not high qualifications. No need for a degree of any kind. 1. Is this as good of a check as it could be? Budget problems are the cause iii. Not neutral and detached if: 1. Personal/professional interest in the outcome (Coolidge v. New Hampshire)

2. Paid money to issue warrants (Connally v. Georgia) 3. Doesn’t read affidavit (Rooker v. Commonwealth) iv. Police can go to second magistrate if first won’t issue, but disclosure of prior application is preferred in order to avoid judge shopping (People v. Bilsky) b. Must describe with particularity the place to be searched and the things to be seized. i. Particular description in the warrant. If the warrant doesn’t say what things to be seized, even if the information is on the application, the warrant is still invalid. 1. Groh v. Ramirez: warrant has no description at all regarding the goods to be seized, not even a cross-reference to the affidavit (facially invalid). ii. State v. Blackburn: What if description of place in warrant is slightly off (e.g., 2nd floor instead of 1st)? If other information make it apparent within reason which place was intended, warrant is still valid. c. Must be based on probable cause to believe that the items to be seized are both connected with criminal activity and to be found in the location to be searched (based on affidavit). i. Pervasive fraud doctrine: all records search warrant is permissible when affidavit demonstrates a pattern of illegal conduct that is likely to infect all of the company business. 1. United States v. Bradley (11th Cir., but lots of circuits have this rule) 2. Doesn’t matter how deep the fraud is, just how much of the business it has permeated. ii. Factors: 1. Degree of intrusion on privacy a. Ex. More care when searching through attorney’s office. b. Less specificity required regarding contraband. 2. High government interest in stopping the spread of fraud. 3. Less precise description of property if contraband. a. Mere fact of improper seizure doesn’t mean that was warrant was insufficiently particular. 4. Police methods – “Done the best they could under circumstances.” 5. Vagueness in warrant description may be more tolerated when police have described item with as much particularity as can reasonably be expected under circumstances. a. Police can’t be more specific, or they would have a hard time distinguishing between files when executing the warrant (which diamonds? Which fur coat? How would an officer know?) d. Must be executed within a reasonable period of time after issuance. i. Generally, once the warrant is in hand, the issues stop being about the kind of crime and are more about the circumstances of execution. 2. Execution of the warrant a. Time of entry – rule varies by jurisdiction i. Statutes and court rules commonly provide search warrant may be executed within certain time (i.e., 10 days)

1. State v. Neely: if search warrant isn’t stale when issued, execution within statutory limit is valid. 2. State v. Swift: it doesn’t follow that compliance with leg-imposed time limit will in every instance result in valid search, here okay because continuing nature of crime meant PC still existed. 3. US v. Archibald: Mere passage of time can’t invalidate execution, but must ask whether anything occurred during delay that may have affected continued presence of PC. 4. US v. Gerber: completing a search shortly after the expiration of a warrant does not rise to the level of constitutional violation and cannot be a basis for suppressing so long as PC continues to exist and government didn’t act in bad faith. ii. Some bar nighttime execution of warrants unless judge for good cause expressly authorizes. b. Means of entry i. Berger v. NY: 4th Amendment requires notice absent a special showing. 1. Need showing of reasonable necessity for delay. 2. Court should require officers to give appropriate person notice of the search within a reasonable time of the covert entry. ii. Wilson v. Arkansas: Police must knock and announce upon executing warrant. 1. This a reasonableness standard and will depend on the circumstances. 2. Knock and announce forms part of reasonable inquiry. iii. US v. Banks: After knock and announce, police must wait reasonable period of time before entering. 1. In this case, where officers waited 15-20 sec, without response, and broke open door, police could fairly suspect cocaine would be gone if waited any longer. 2. Reasonable wait-time rule: a. Does the occupant’s failure to admit suggest a refusal to let police in? b. Did the occupant have time to get to the door? i. Varies based on the size of the establishment. c. Is there a legitimate exigent need to enter? Then, no need to do reasonableness evaluation. 3. To justify a violation: a. Refused admittance: first, it must reasonably appear occupant had time to get to door. b. No-knock entry – Richards v. WI reasonable suspicion test that: i. Knocking is dangerous or futile. ii. Would inhibit the effective investigation of the crime. c. U.S. v. Ramirez: whether Richards reasonable suspicion test has been met in no way depends on whether police must destroy property to enter:

i. Flexible standard not a rule. ii. Particular facts: officer knocked, D opened door and slammed. Officers forced entry due to disposable nature of the drugs. 4. Miscellaneous factors to consider: a. Size of the house. b. Exigencies. c. Type of thing police searching for/how readily disposable (ex: drugs v. piano). d. What’s known about person/likely to do something. 5. Reasons for the rule a. Ensure privacy rights and keep additional invasions of privacy from occurring. b. Safety of the officers. c. Prevent destruction of property. d. Some jurisdictions prefer daytime execution of warrants. iv. Sneak and peak – law enforcement delay notifying property owner about warrant’s issuance and enter while no one home generally allowed. 1. Notice, absent showing of reasonable necessity. 2. Notice actually given. c. Search of persons during execution of warrant. i. Ybarra v. Illinois: warrant authorized to search bar, bartender, not patrons. Warrantless search of person on premises requires independent PC and justifications for dispensing with warrant requirement. 1. Proximity to others suspected of crim activities doesn’t, without more, give rise to PC to search. 2. No reason to suspect armed/dangerous (not good under Terry). ii. Los Angeles County v. Rettele: Reasonable for police to order naked Ps out of bed and make them stand for a few minutes during execution of warrant. 1. Cops can search folks of different race than those who the warrant was issued for, and not letting them get dressed or cover themselves was permissible. 2. Maybe necessary to protect safety of deputies so they weren’t required to turn backs to...