CHAPTER 2 NOTES

Download for Microsoft Word

èThe 4^th Amendment guarantees protection against unlawful searches or seizures, by requiring a warrant.

à”The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, [Reasonableness Clause] 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[Warrant Clause]” (Emphasis Added)

àWarrantless searches or seizures are per se unreasonable

            àThere are numerous exceptions to this rule;

àFor example:

1)                  Exigent circumstances

a.       Risk of Flight

b.      Destruction of Evidence

c.       Officer’s personal observation of crime

2)                  Plain View

3)                  Search Incident to a Lawful arrest

4)                  Consent

5)                  Terry Stops

6)                  Many others

àThe point is that despite the apparent constitutional mandate for warrants, there are many exceptions to the requirement

èMost importantly, when making an arrest with or without a warrant: Probable Cause is required

àAs you will see throughout the class, a great deal of change occurred in regard to the warrant requirement in the late 1960’s

èThree key cases:

1)                  Katz v U.S. (1967)

a.       Attachment of electronic listening device to outside of telephone booth to listen to conversation was ruled a search by Supreme Court

b.      “the Fourth Amendment protects people, not places”

c.       The rule coming out of the decision ends up being Justice Harlan’s Concurrence:

                                                                           i.      Police activity constitutes a search if:

1.      “That a person [has] exhibited an actual (subjective) expectation of privacy” (Subjective)

2.      “The expectation be one that society is prepared to recognize as "reasonable."” (Objective)

2)                  Terry v Ohio (1968)

a.       Officer stopped Terry outside of jewelry store and patted him down

b.      Court found that the officer had right to external search for weapons, as long as officer had “reasonable” suspicion of the person having a weapon

3)                  Camara v Municipal Court (1967)

a.       Fourth Amendment applies to both civil and criminal enforcement efforts

èThe authors suggest a three pronged balancing test to determine the reasonableness of a search or seizure (note: this is not a judicially created test, only a guide created by the authors):

1)                  The privacy interest of the person subject to the search (or seizure);

2)                  The government’s interest in conducting the search (or seizure)

3)                  The degree of intrusion from the search (or seizure)

èWhat “level“ of suspicion must the officer have to do the following:

1)                  Simply converse with a person, not stopping them?

a.       None

2)                  Stopping a person but not arresting them?

a.       Reasonable Suspicion before making the stop

                                                                           i.      Individualized or articulable suspicion

3)                  Arresting a person?

a.       Probable Cause

U.S. v Sylvia Mendenhall (1980) 446 U.S. 544

àWoman was observed by two DEA agents in Detroit Metro Airport fitting the profile of a drug courier

1)                  Mendenhall was arriving from Los Angeles, place of origin for much of the heroin found in Detroit

2)                  Last person to leave the plane and appeared to be nervous

3)                  Did not claim any luggage

4)                  Different airline for her return flight out of Detroit

àAgents approached her and asked to see her ID and papers

àName on ID and on ticket did not match

àAsked her if she would accompany them to an office for further questioning

            àShe followed them to the office

àAsked if she would consent to a search of her person and told her she could decline

            àShe consented by saying, “Go ahead”

àFemale agent arrived to conduct the search and again asked for consent

            àShe said yes

àThe search turned up two packages of heroin

àMendenhall was charged with possessing heroin.

èKey question of the case was whether or not Mendenhall was seized and if so when?

àWas there a seizure?  When?

1)                  When the agents approached her and asked her questions?

a.       Majority said no

2)                  When the agents asked for ID and boarding pass?

a.       Majority said no

3)                  When they moved her to the DEA office?

a.       No because there was consent

èDefinition of seizure:

à”within the meaning of the 4^th Amendment only if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he/she was not free to leave.”  (Page 50 in the text)

            àThis is a pragmatic solution to allow police to speak to people casually.

èCourt determines that Mendenhall had no reason to suspect that she could not end the conversation with the agents and leave.

Wesley Wilson v State (1994) 874 P.2d 215

àWhile on patrol in his car, Officer Kamron Ritter observed Defendant (Wilson) limping severely while walking down a road at 12:31 AM.

àRitter stopped to assist Wilson and to see what had caused the injury.

àDefendant claimed that he had twisted his ankle at a party, which also explained the smell of alcohol on his breath

àPer Department procedure, Ritter requested Wilson’s identification and radioed the information in for a routine warrant check.

àThis exchange was interrupted by Ritter’s detection of smoke in the area and two motorists stopping to tell him that there was a fire nearby.

àOfficer Ritter left Wilson to check on the fire but told him to “stay in the area”

à8 minutes after leaving Wilson, Ritter returned to see that Wilson had limped about 40 feet away and Officer Ritter assisted Wilson in crossing the street so that he would avoid the danger of oncoming emergency vehicles

àRitter then left Wilson again to assist in the fire fighting but told Wilson to “wait”

àWhile providing traffic control near the fire, Ritter received word that Wilson in fact had two outstanding arrest warrants

àRitter, accompanied by another officer, approached Wilson and informed him of his outstanding warrants

àWhile talking to Wilson about the warrants, the officers noticed an oily (read: flammable) substance on his shirt and after feeling the substance Wilson remarked, “What are you doing?  I don’t smell like smoke.”

èThe officers arrested Wilson on the outstanding warrants

àWhile in custody, Wilson made incriminating statements about setting the fire from the night before

èWilson argues that the stop was illegal and any evidence (statements) gained during the stop should be suppressed

àThe state argued that this was not a stop at all and so it did not implicate the 4^th Amendment at all.

            àIf it were a stop, the police needed reasonable suspicion before the seizure

èWhich encounter can be characterized as a “seizure”?

1)                  Initial Encounter when Ritter noticed Wilson limping?

a.       No, this was simply Officer Ritter acting in his community caretaker capacity

2)                  Request by Ritter for Wilson’s identification?

a.       No, this was consensual and there was nothing intimidating about it

3)                  Warrants check?

a.       No, there was no restriction whatsoever in Wilson’s ability to move

4)                  Telling Wilson to “stay in the area”, which Wilson did not comply with?

a.       No, because Wilson did not stay there, so he could not have reasonably believed that he was not free to leave

5)                  Ritter returning from the fire to check on Wilson and physically assisting him in crossing the street?

a.       No, assistance in crossing the street given by an officer could not reasonably be seen as restricting one’s freedom to leave

6)                  When Ritter told Wilson to wait at a street corner until he returned and Wilson complied?

a.       Yes, because at this point Officer Ritter had repeatedly returned to check on Wilson, because Officer Ritter could keep an eye on from where he was standing Wilson, and obviously Wilson did not think that he could leave

èTherefore, at this point Wilson’s 4^th Amendment protection against unreasonable seizures attached.

àThe question becomes if whether or not this detention so that a warrant check could be completed is an unreasonable seizure.

èYes it was unreasonable because Officer Ritter lacked any reasonable suspicion of prior criminal activity by Wilson and the initial reason for the stop, Wilson’s safety, did not provide the requisite reasonable suspicion necessary.

Florida v Bostick (1991) 501 U.S. 429

àTwo police officers boarded a bus bound from Miami to Atlanta       

            àBoth officers had badges and one had a pistol in a pouch

àThe officers picked out Defendant (without providing any reason or suspicion) and asked to inspect his ID and ticket

àThe two officers stood in the aisle of the bus right in front of Defendant

àEverything was in order concerning his ID and ticket

àThey announced that they were searching for drugs and asked for Defendant’s consent to search his bags and told him that he did not have to consent

àHe gave consent

àCocaine was discovered

èThe Supreme Court ruled that if by combining all of the circumstances present at the time, a reasonable person felt free to leave the scene and decline a search, the search was reasonable.

            àThey ruled that a reasonable person would have felt free to leave.

àWhat about consent?  It seems that someone carrying contraband in his/her luggage would never freely consent to it being searched, so how could they feel free to leave?

àCourt in Bostick says that the reasonable person standard set out in Mendenhall, presupposes an innocent person

Justification for a stop:

èAgent must be able to articulate a reasonable suspicion that the person has committed or will commit a crime

            àThis is for a “stop” not an arrest

èWhat sorts of things do the police look for?

àConduct of the suspect

àOften the conduct of the suspect serving as the basis for the suspicion is not criminal in itself

àRather, the observer must infer a connection between the lawful act and the suspected criminal acts

àThe police are able to observe actions that lead them to believe criminal conduct is present, past, or about to happen

àSurroundings of the suspect

àLike in Dean, often the location of the suspect in light of other circumstances can create reasonable suspicion

            àPresence near a crime scene around the time of a crime

èNote: The court in Terry, reasoned that officers have special training and experience, so the “reasonableness” of their decision to act based on observation of facts, “[must be given due weight] in light of [the officer’s] experience”

àTherefore, police officers see criminal conduct much sooner and more often than an untrained citizen, therefore, the officer’s suspicion must be given due weight

àCan anonymous tips serve as the basis for reasonable suspicion?

àNot by themselves, the police must “find independent corroboration of ‘significant details’ of the informant’s information.” Alabama v White 496 U.S. 325 (1990)

èTo arrest or for a search warrant, there must be probable cause which means: “a fair probability that contraband or evidence of a crime will be found”

State v Theodore Nelson (1994) 638 A.2d 720

àOfficer Holmes was on routine patrol when he noticed an unoccupied car he knew belonged to a former neighbor of his (Moore)

àThe car was parked in a nursing home parking lot that had recently been the site of thefts

àOfficer Holmes parked adjacent to the parking lot so that he could observe the car (50-100 yards from the car)

àSoon another car parked next to Moore’s car with two passengers, later identified as Moore and Defendant, Nelson

àThe car shut off its engine and Officer Holmes observed the pair drinking from a 16 oz. can of Budweiser

à45 to 50 minutes later, the pair split up and Nelson drove by the officer who promptly pulled him over

àTo be clear, the reason for the stop was because the officer had observed Nelson drinking a can of beer and suspected Nelson was under the influence

àNelson moved to suppress the evidence obtained from this stop, arguing that it was unlawful

àThe court states that in order for an investigatory stop to be justified, the officer must have “an articulable suspicion that criminal conduct has taken place, is occurring, or imminently will occur”

èThe court ruled that because Officer Holmes had only seen Nelson consume a can of beer in his truck over the course of an hour, which is not a crime, Holmes needed more to justify the stop

àTherefore the stop was unlawful and evidence gained from it must be suppressed.

State v David Dean (1994) 645 A.2d 634

èSame court as in Nelson, decided 5 months after the Nelson decision

àDefendant David Dean appeals his conditional plea of guilty on charges of operating a vehicle under the influence of alcohol, claiming that the initial stop was not justified by reasonable suspicion

àWhile on patrol in a new residential development around 11:00 PM on Tuesday, Officer Sampson noticed Defendant driving down a dead end road

àBecause the development was uninhabited on weekdays and there had been reports of vandalism, Officer Sampson became suspicious of the car being there

àOfficer Sampson stopped Defendant (Dean) solely to investigate why Dean was present at that time and place

            èNote, no criminal conduct was observed by the officer

àIt was during this stop that Officer Sampson noticed Defendant’s intoxication

àThe question the courts asks is whether or not the two facts (Dean’s presence in a area of recent crime and the absence of any reason to be in an uninhabited area at night) create reasonable suspicion?

èThe court states that taking those two facts along with the time of day (1100PM) yields reasonable suspicion.

àThe court distinguishes this case from its prior decision in Nelson by the fact that Nelson was in the parking lot of an occupied nursing home not an uninhabited dead end street at 1100PM.

èNote, however that the events in Nelson took place around 130AM, a time much more suspicious than 1100PM

àThe court rules that “but for Dean’s intoxication, [the stop] would have been a brief investigatory stop”, therefore the intrusion would have been minimal had Dean simply been sober and explained what he was doing

èJustice Glassman (wrote the majority opinion in Nelson) dissented

àOrnelas v U.S. (1996) 517 U.S. 690

àThe Supreme Court held that appellate courts would determine the presence of reasonable suspicion using a de novo standard

Illinois v Wardlow (2000) 525 U.S. 119

àHigh drug area drive through by police

àFour police cars were patrolling the area, looking for lookouts and customers to investigate the drug trade

àLarge group of people, including Defendant holding an opaque bag

àDefendant looked at officer and then fled the scene

àOfficer cornered him and performed a protective weapons pat down

            àFelt something like a gun in the bag

            àWas a gun with live ammo

èArrested Defendant

àQuestion is whether or not officers had reasonable suspicion to perform a Terry Stop.

è”Accordingly, we have previously noted the fact that the stop occurred in a "high crime area" among the relevant contextual considerations…[and] nervous, evasive behavior is a pertinent factor in determining reasonable suspicion in a Terry analysis.”

à”The determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior”

à”High crime area” is pertinent in the analysis

àThe police action was justified.

àDISSENT by Stevens

àThere are a number of other reasons why a person would flee the scene upon seeing police, many of them completely innocent

èMost states allow for flight to be considered in reasonable suspicion analysis but not dispositive

àDo “bad neighborhoods” establish reasonable suspicion?

àNo, the officer must base his/her claim on their impressions of the situation but nature of the neighborhood may support suspicion

àW hen officers and courts refer to a neighborhood as “high crime”, often it is minority and poor neighborhoods they are talking about

California v Hodari D. (1991) 499 U.S. 621

àPolice with jackets that said “Police” are riding in an unmarked car through a high crime neighborhood

àGroup of youth huddled around red car, when they see police, they flee

àChased Hodari and immediately prior to grabbing him, Hodari threw what ended up being crack

àConvicted

èKey question is: “When was Hodari seized?”

            àIn regards to admissibility of crack

àDid Hodari abandon the rock?

àDid that rock create probable cause for the arrest?

àWas the chasing and yelling by the cop, enough of a show of authority for it to be treated as a seizure?

èCourt points out that the definition given in Mendenhall, would make it so that by resisting the show of authority by fleeing, Hodari is unable to claim that he “in view of all the circumstances surrounding the incident…would have believed that he/she was not free to leave”

            àOf course he felt free to leave…he left the officer by fleeing.

èWhren Stop

àTraffic stops based on reasonable suspicion of a traffic violation, but intended to further the investigation of some other crime.

à”Where a police officer has probable cause to detain a person temporarily for a traffic violation, that seizure does not violate the 4^th Amendment…even though the underlying reason for the stop might have been to investigate some other matter”

People v Frank Robinson (2001) 767 N.E.2d 638

àConsolidated cases:

1)                  People v Robinson

a.       Officers following taxis after reports of robberies

b.      One cab ran a red light, so the officers pulled it over

c.       One officer observed that the passenger (Defendant) looked back at the police several time, appearing to be nervous

d.      One of the officers shined his flashlight in the backseat and noticed that the Defendant was wearing a bulletproof vest

e.       After ordering Defendant out of the car, the officer found a gun on the floor of the cab where the Defendant had been seated

f.        Defendant argues that the vest and gun should have been suppressed because the police used a traffic infraction as a pretext to search him

2)                  People v Reynolds

a.       Officer on patrol saw a known male prostitute be picked up by Defendant in his truck

b.      The officer followed Defendant and ran a check on his license plate, which revealed registration that had expired 2 months prior

c.       The officer pulled the truck over and proceeded to notice that the Defendant was visibly intoxicated

d.      No prostitution charges were filed

e.       Defendant’s charges were dismissed by the trial court after evidence obtained during the stop was suppressed

3)                  People v Glenn

a.       Officers observed a cab make a right turn without signaling

b.      The officers did not respond until they noticed one of the passengers in the back lean forward, indicating a robbery was taking place

c.       The officers stopped the vehicle to see if a robbery was indeed in progress

d.      One officer found cocaine on the back seat and a subsequent search of Defendant turned up additional drugs

e.       Defendant appeals the denial of his motion to suppress the evidence gained at this stop, arguing that the traffic offense was a pretext for investigating the robbery

èAnalysis

àThe court relies heavily on Whren v U.S. (1996)

àPlain clothes cops see van wait at stop sign for 20 seconds and then speed off

àAfter the van makes a right turn without signaling, the officers pulled the van over

àAs the officer approached, he observes cocaine on Whren’s lap

àAfter arresting the occupants, the officers find more drugs in the van

àDefendants argue that the stop was unlawful because it was not based upon probable cause or reasonable suspicion that there was criminal activity present

àProbable cause is an entirely objective factor

                        àAs long as probable cause is based on objective facts

àThe stop was based on speeding and failure to signal

                        àThere was probable cause to believe they were speeding

àPetitioners argued for a different test than what was applied on Appeal

èThe court ruled that the stop was justified

à”the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred”

èKeep in mind that there was no “search” to find the cocaine, the Police officer saw it from the window

àThe court stated that any attempt to determine whether a “reasonable officer” would have stopped the car for the traffic violation alone, would force the courts to speculate on endlessly

èBack to the case at bar

àThe court here holds that in making a determination of probable cause, the primary motive or the determination of what a reasonable officer would do is irrelevant

àWhen “the officer has probable cause to believe that the driver of an automobile has committed a traffic violation, a stop does not violate…[the constitution]”

èHowever, the court points out that the violation of the traffic statute gives the officer grounds to make the stop but it also limits “the scope, duration, and intensity of the seizure, as well as any search made by the police subsequent to that stop”

àThe point being that though the stop may be reasonable, a long, invasive, and thorough search would not be justified in light of how minor traffic offenses tend to be.

àIt seems that everyone violates traffic laws, doesn’t this simply give the police the right to stop people arbitrarily because they “look guilty”?

àThe court answers this by saying that racial profiling may be remedied by an Equal Protection Claim and that in fact the officers are not targeting just anyone.  They are only pulling those people over who have violated the law

àThe dissent argues that in fact proving an Equal Protection Claim is/would be quite difficult because the burden on the Plaintiff to show both discriminatory effect and purpose is quite heavy

Criminal Profiles

àIn Mendenhall, DEA officers relied on a “drug courier profile” to target the Defendant who ultimately was a drug courier.

àWhat sorts of profiles may officers use and what can be included in these profiles (race, sex, clothing, height)?

Samir Quarles v State (1997) 696 A.2d 1334

àDefendant sought reversal of ruling that denied his motion to suppress illegal drugs seized from him by the police

à2 Officers were in the bus terminal awaiting the arrival of a bus coming from New York City

àIn their experience, this bus was often used by drug couriers

àThe two officers hoped to intercept these couriers and were suspicious of two men that exited the bus last, Thomas and Quarles (Defendant)

àIn Mendenhall, the DEA officers described being last to exit the plane as one of the factors considered in the “drug courier” profile

àThe two men were talking as they exited the bus but upon seeing the police they halted their conversation very abruptly, which further aroused the suspicions of the officers

àThe two men walked quickly away from the police with Defendant looking back at the police; it seemed to be so that he could see if they were being followed

àAfter walking for awhile, the two men turned a corner and saw that a third officer was sitting in his patrol car, which caused the two men to backtrack and check to see where the original two officers were located

àThe two men appeared to be confused as to where to walk and one of the officers asked to speak with them

            àThey said yes

àAll 3 officers questioned the men, who gave inconsistent statements as to their destination and appeared very nervous

àFinally, the officers told the men that they were investigating the drug trade and were looking for drug couriers

àThe officers asked the men if they had weapons or drugs on them and if they would consent to a search

àThe men consented and a large amount of cocaine was found in Defendant’s boot

àIn order for this stop to be valid, the officers must be able to articulate specific facts that lead them to have reasonable suspicion that a crime was being committed, had been committed, or was about to be committed

èHowever, the court points out that in analyzing the justification for the stop, the court must consider the specific experiences and training of the officer involved in its totality of the circumstances assessment of the stop

àIn this case, the officers relied on a drug courier profile and specific actions by the Defendant to create this reasonable suspicion:

1)                  Profile

a.       On a bus from New York City

b.      No luggage

c.       Traveling as a pair

2)                  Non-Profile

a.       Startled reaction to the police by the Defendant

b.      Quickly leaving the terminal away from the officers

c.       Rapid glances toward the officers

àThe court upheld the search as justified, taking into account the experience of the officers, as well as the Profile and Non-profile factors that the Defendant met, which created a reasonable suspicion of criminal behavior

èNote that the court relies on subjective factors (Individual Police officer with his/her specific experience) in making their decision

àDISSENT: Chief Justice Veasey

àThe Chief Justice dissents because he feels that the court is simply inventing the notion that in considering the validity of a stop, the court should place deference on the subjective police observations based on experience

àEven so, the Chief Justice argues that the profile factors that the Defendant met, could be the activities of a completely innocent man

èA Defendant matching a Profile (e.g. Drug Courier) cannot alone justify a stop by the police

àThere must be other factors which lead to the suspicion, much the way that the court in Quarles, relied on

Peter Verniero, “Attorney General Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling” (1999)

àThere had been a number of reports of New Jersey State Troopers unfairly targeting minorities (Blacks and Latinos) by stopping them, searching them, and arresting them at a much higher frequency than with white drivers

àFor the purposes of this article, Racial Profiling is defined as, “any action taken by a state trooper during a traffic stop that is based upon racial or ethnic stereotypes and that has the effect of treating motorists differently than nonminority motorists”

èStatistical Findings in the Article

1)                  4 out of every 10 stops involved minorities

2)                  When officers do search cars, 77.2% of the time it is of a minority motorist

3)                  Of the 2,871 non-DUI arrests made by the police from 1996-1998, 70.5% involved black or Latino drivers

àOften, the greater amount of discretion the officer is given, the greater the number of minority motorists that he/she will stop and ticket

àThe article argues that it is ok to have a “profile” describing the modus operandi of drug couriers, etc. but it should not contain factors like race, ethnicity, or national origin

àThe article argues that if officers were required to give more reason and justification for their stops, ticketing, and searches; or were forced to commit it to writing, the less minorities would be arbitrarily targeted

City of Indianapolis v James Edmond (2000) 531 U.S. 32

àIn an effort to interdict drugs, the city of Indianapolis set up checkpoints on roads

àThe city set up six such checkpoints over a 3 month period, which resulted:

            à1,161 cars stopped

            à104 arrested

            à55 arrests for drug related crimes

            à9% “hit rate”

àThe checkpoints stopped a predetermined number of vehicles in a certain sequence (no exceptions), the drivers were asked to produce license and registration, the officer looks for signs of impairment and any other plain view items of contraband, and a drug sniffing dog walks around the car

àThe officers may conduct a search based on consent or particularized suspicion

àThe average stop (without a search or other processing) lasts 2-3 minutes

àDefendant (Edmond) and Joell Palmer were each stopped at a checkpoint

àThey filed a lawsuit on behalf of themselves and all motorists stopped, claiming that the checkpoints violated the 4^th Amendment

àThe issue is whether or not the suspicionless stops of these checkpoints violates the 4^th Amendment, which requires individualized suspicion of wrongdoing for there to be a valid search or seizure

àHowever, the Supreme Court has upheld suspicionless searches designed to serve “special needs, beyond the normal needs for law enforcement”, examples

1)                  Random drug testing of student athletes (Vernonia School v Acton)

2)                  Drug tests for U.S. Customs officers (Treasury Employees v Von Raab)

àAdditionally, the court has upheld brief, suspicionless seizures of motorists at U.S.-Mexican border and sobriety checkpoints designed to remove drunk drivers from the road.

àIn Michigan Dept. of State Police v Sitz sobriety checkpoints were upheld by the court

àThe checkpoints were set up to minimize the immediate risk of having drunk drivers on the road

àThe court held that the gravity of the problem of drunk driving and the state interest in reducing this danger, weighed heavily in finding the program to be constitutional

àThe court also placed great value in the state’s interest in highway safety (Prouse)

àThe issue here is that the court places a much greater value and deference to the state’s interest in safety on the highway, not so much on crime control and investigation

àThe court holds that because the primary purpose of the checkpoints was the interdiction of illegal narcotics, not the interest in reducing a known hazard or special needs, the stops involve the 4^th Amendment which requires individualized suspicion of wrongdoing, which would be absent in these checkpoints

àThe City contends that the court is precluded from even looking into the primary purpose of the checkpoints by Whren

àAn officer’s subjective intent cannot invalidate an otherwise objectively justifiable stop of an automobile

àThe court answers this by pointing out that in Whren there actually was a traffic violation which justified the stop and the cocaine seized was in plain view

àIn the case at bar, there is no reasonable suspicion of a traffic violation, therefore there would be no justification for the stop and so Whren does not apply

àDISSENT Chief Justice Rehnquist

àRehnquist argues that the primary purpose of the checkpoints is not the issue in this case; that question was not presented

àInstead, Rehnquist argues that the real question is the reasonableness of highway checkpoints

àThe reasonableness of these highway checkpoints turns on whether they effectively serve a governmental purpose not on probable cause

àThese stops serve the legitimate state interest in preventing drunk driving and ensuring proper registration and licensing of drivers, which were OK’d by the court in Sitz and Prouse.

àRehnquist believes that because one has a diminished expectation of privacy in his/her automobile and the intrusion by the police is minimal, these checkpoints should be upheld even on 4^th Amendment grounds

Plain View Doctrine

èThis allows an officer to seize something he has probable cause to believe is contraband or evidence in a crime without a warrant

àThere is no reasonable expectation of privacy in items left in plain view

àFew more details:

1)                  Officer must observe the item from a lawful vantage point

2)                  The officer must have a lawful right of access to the item

3)                  The object in plain view is properly subject to seizure when it is immediately apparent that the item fits one of the four categories of items subject to seizure

a.       Contraband

b.      Fruits of a Crime

c.       Instrumentalities used in the commission of a crime

d.      Mere evidence

àIf the item seen in the plain view is in a protected area (interior of a building) most courts require the officer to go and get a search warrant before taking the item

            àCoolidge v New Hampshire

àThere is also a “plain feel” doctrine dealt with later

State v Mihai Bobic (2000) 996 P.2d 610

àDefendant was part of conspiracy where group would steal vehicles, strip the cars of their key parts, the cars (minus the parts) would be sold by insurance companies at auto auctions, the conspirators would then buy the cars at auction, put them back together and own them clear.

àThe parts were often stored in commercial storage facilities

àDetective Kelly Quirin became suspicious of certain auto thefts and after investigating further, discovered a possible connection between the thefts and commercial storage places

àQuirin obtained and executed a search warrant to search certain units at a commercial storage facility

àAfter the search, the manager of the facility informed Quirin that one of the units (that wasn’t searched) might be connected with stolen vehicles

àA week later, Quirin and another officer went back to facility to search the unit (E-71) but it was locked

àThe manager let the officers into the unrented, unlocked unit next to E-71

àThe unit had a preexisting (pinky-sized) hole in the wall that allowed Detective Quirin to see into E-71

àWithout the aid of a flashlight, Quirin was able to see items in E-71; based on what he saw, Quirin obtained a search warrant for E-71 and recovered stolen goods

àBobic appeals the denial of his motion to suppress the evidence recovered during the search of E-71, which alleged that the original search through the wall was unconstitutional

èThe court upheld the search as constitutional on the ground that the detective’s observations were made by sight alone and all items he saw were in “open view”

àFurthermore, Quirin was lawfully in the adjoining unit to see the items

èWhat if the officers are using some sort of a tool or specialized viewing device?

          àDow Chemical Co. v U.S.  (1986)

àEPA took aerial photos of Dow industrial complex with “standard, floor-mounted precision aerial mapping camera”

à”We find it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened.  Nor is this an area where Dow has made any effort to protect against aerial surveillance.”

àPhotos are ok

Steven Dewayne Bond v U.S. (2000) 529 U.S. 334

àBond (Defendant) was a passenger on a Greyhound bus bound for Little Rock, Arkansas from California

àAt a required stop at the Border Patrol checkpoint in Texas, Border Patrol Agent Cantu boarded the bus to check immigration statuses of the occupants

àAfter checking the immigration status of the entire bus, Cantu began to make his way back toward the front of the bus, while feeling the soft luggage in the overhead bins

àWhen Cantu got to the luggage over Defendant’s seat, he felt a “brick-like” object in Defendant’s bag

àDefendant admitted that the bag was his and agreed to a search of its contents

àUpon opening the bag, Cantu discovered a brick of methamphetamine; duct taped and rolled in a pair of pants

àDefendant’s motion to suppress the evidence was denied; He appeals

àThe court begins its analysis by distinguishing this case from their previous decisions in Ciraolo and Riley

èCiraolo (1986)

àOne of two cases that points out that Police surveillance of the curtilage does not necessarily constitute a search

àPolice received a tip that marijuana was growing in Defendant’s back yard

àThey were unable to look over the high fence, so they flew in a plane over 1000 feet above the yard and identified the plants growing in the yard

àNOT a search

à”Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed”

àSeems that in order to have a proper privacy, one would have to completely enclose the backyard

èRiley (1989)

àMarijuana observed by Police helicopter 400 feet above partially covered greenhouse

àBecause part of the greenhouse was left open “for the public to see”, Ciraolo controls

àInteresting to note the language used:

à”As far as this record reveals, no intimate details connected with the use of the home or curtilage were observed, and there was no undue noise, and no wind, dust, or threat of injury.  In these circumstances, there was no violation of the Fourth Amendment.”

èThis case is different according to the court because in this case it was a tactile observation opposed to only a visual one as in Riley and Ciraolo

àThe court applies the 2 part analysis found in Justice Harlan’s concurrence in Katz:

1)                  Police activity constitutes a search if:

a.       “That a person [has] exhibited an actual (subjective) expectation of privacy” (Subjective)

                                                                           i.      In the case at bar, Bond exhibited an expectation of privacy in his luggage because the bag was opaque and he placed it directly above his seat

b.      “The expectation be one that society is prepared to recognize as "reasonable."”  (Objective)

                                                                           i.      Passengers expect that other passengers will handle the bag to move it in an effort to place their own luggage in the bins

                                                                         ii.      Passengers do not expect that other passengers or bus employees will feel the bag in an exploratory manner

èTherefore, the court holds that the agent’s physical manipulation of the bag violated the 4^th Amendment

àDISSENT Justice Breyer

àBreyer comes out the exact opposite way from the majority

àHe feels that the sorts of prodding, pulling, and squeezing that the majority feels violated the 4^th Amendment, is simply par for the course when attempting to place bags in overhead bins

àThat is to say that because of the way in which people cram their bags into overhead compartments, the sort of handling that Cantu gave the bag is no different from the sorts of handling that one reasonably expects when riding public transportation

Dominick Moran v State (1994) 644 N.E.2d 536

àIndiana State Police operated a business selling hydroponic equipment in an effort to identify individuals growing Marijuana

àDefendant, Moran, and Holland frequented the store, making numerous purchases

àAt 5 AM, two officers drove a pickup truck to Defendant’s home which was 50 feet from the road

àUpon seeing that Moran’s trash cans (with lids) were sitting out for pickup, unloaded it into the back of the truck

àThey brought the trash back to the police office and it was sifted through for evidence and contraband

àThe search produced marijuana plant clippings, which provided the basis for a search warrant, which in turn resulted in the finding of additional evidence of marijuana cultivation

àDefendant unsuccessfully moved to have the evidence suppressed; They appeal

àThe court dismisses the federal claim, holding that California v Greenwood, applies

àSupreme Court ruled that there is no reasonable expectation of privacy in garbage left at curb

àAs for the state claim, the court looks to other states for guidance:

1)                  State (New Jersey) v Hempele (1990)

a.       Court found that there was an expectation of privacy against police intrusion

2)                  State (Connecticut) v DeFusco (1993)

a.       Followed Greenwood in applying the two-pronged analysis from Katz

b.      Found there was no expectation of privacy

èWhat should this court do?

àThe court holds that when people set garbage out at the curb, they do so for it to be picked up, most often by garbage men but also by people who simply want a lamp or couch that one has thrown out.

àThe point being that the homeowner has an expectation that the garbage men will take the trash and other people will take those things that they do not want anymore

àCoupling this with the fact that the police did not trespass or cause a disturbance in taking the trash, the court finds that the police did not act unreasonable in their taking of the trash

àDISSENT Justice Dickson

àDickson argues that trash is very private in that it can reveal a great deal about the religious, political, legal, medical, and personal beliefs if sifted

àAdd this to the fact that one cannot bury or burn his/her trash, then the person is forced to rely on the government to take the trash; therefore they must leave the trash out at the end of the driveway

àHe concludes by saying that reasonable cause to believe that there is evidence of criminal activity in the trash, should lead one to seek a warrant.

àOf course the issue being that one must have more than reasonable cause for a warrant, rather it must be probable cause

John Terry v Ohio (1968) 392 U.S. 1

àOfficer McFadden observed 3 men walking back and forth in front of a jewelry store in the afternoon.

àOfficer suspected that the 3 men were ‘casing’ the store to rob it.

àOfficer approached the 3 men and asked Terry for his id

àTerry mumbled and fidgeted, so the officer put him against the wall and frisked him

àFelt a weapon and searched him further by pulling out a gun from Terry’s person

àCourt found that the officer had right to external search for weapons, as long as officer had “reasonable” suspicion of the person having a weapon.

àWhat is the government’s argument justifying McFadden’s (officer) actions?

            àIt was a stop (not a seizure) and frisk (not a seizure)

                        àCourt rejected this argument and so the 4^th Amendment is implicated

èJustice Warren (writing for the majority) seems to believe that that reasonableness is the key in the analysis.

àEven if McFadden wanted to get a warrant, he couldn’t have because he did not have probable cause.

èReasonableness Balancing test = Government’s interest / Individual Privacy Interests

Balancing test

            àWas Terry searched? Yes

            àWas Terry seized? Yes

àWhat about an officer asking for the time?

            àNo…”only by means of physical force or show of authority”

èPrior to Terry, a seizure of a person equaled an arrest

èNew definition of seizure, “whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person”

àNote this quote which sums up the majority’s position:

à”We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him…any weapons seized may be introduced into evidence” (Emphasis Added)

àDISSENT Justice Douglas

àDouglas argues that this opinion completely undermines the search and seizure jurisprudence of the court

àAn officer effectuating a search or seizure minus a warrant has been upheld in the case of emergency or exigent circumstances

àHowever, warrantless searches and seizures in the absence of probable cause that a crime has been committed have not been upheld until now

àDouglas fears that now officers have greater authority than magistrates or judges who issue the warrants

à”We hold today that the police have greater authority to make a ‘seizure’ and conduct a ‘search’ than a judge has to authorize such action”

àThe very essence of the 4^th Amendment was to protect against the general warrants of British Rule

            àIt was a check on the power of the government

àDouglas fears that this is an unconstitutional step toward totalitarianism

èMore Terry

            àNote the two distinct things that are occurring in a “Terry Stop”:

1)                  Search

a.       Must have reasonable suspicion that the suspect is armed and presently dangerous

b.      Must also be based on specific and articulable facts

c.       The Terry search is only for weapons

2)                  Seizure

a.       Officer must give articulable facts that lead him/her to have reasonable suspicion that a crime has been committed or was being committed

Commonwealth v Roosevelt Wilson (2004) 805 N.E.2d 968

àPolice receive call that there is a man being beaten with a hammer by ten people in a parking lot

àOfficer Walls was the first to arrive at the scene

            àHe was wearing plainclothes and driving an unmarked car

àHe knew the area well, as he had made numerous arrests for drugs, weapons, and fights

            àHe saw 10 men in a group but no suspicious activity

àWhen backup arrived, Walls approached the group of young men

àWhile approaching, he made eye contact with Defendant, who promptly turned and quickly walked away

àIt was during Defendant walking away that Walls observed him “put his hand to his waist area”

àFearing that Defendant had a gun, Walls grabbed Defendant by the shirt and placed his hand on Defendant’s waist

àAs soon as Walls placed his hand on Defendant’s waist, he recognized the feel of small “dime” bags of marijuana

àHe seized the bags and Defendant was handcuffed and searched further, which turned up no other drugs but $476 cash

àNo evidence of a fight, beating or anything was found

àDefendant appeals the validity of the search

àThe court must decide two questions:

1)                  Whether the police lacked the requisite reasonable suspicion to stop and frisk him

a.       Police may stop a suspect if they have reasonable suspicion that he is committing, committed, or about to commit a crime

b.      Police may frisk a suspect if they have reasonable suspicion that the suspect is armed and presently dangerous

c.       The court holds that there were specific and articulable facts that support Walls’ suspicions

                                                                           i.      Defendant quickly walking away

                                                                         ii.      Moved his hand to his waist

                                                                        iii.      Area of the crime

2)                  Whether Walls exceeded the scope of the frisk by exploring and seizing the drugs

a.       Minnesota v Dickerson holds that an officer may seize nonthreatening contraband during a Terry frisk as long as the identity as contraband is immediately apparent

b.      The court holds that under the “plain feel” doctrine, the officer did not exceed the scope of the pat down

                                                                           i.      Note that the officer was in a lawful vantage point to feel the drugs because he was authorized to do a weapons pat down under Terry

Plain Feel Doctrine

àIf an officer conducts a properly circumscribed Terry search for weapons and feels an object that is not a weapon, the officer can seize the item if it is “immediately apparent” that the item is contraband or evidence of a crime

àCan officers order someone out of a car based only on the reasonable suspicion that caused the stop in the first place?

1)                  Driver?

a.       Yes, according to Pennsylvania v Mimms

2)                  Passengers?

a.       Yes, according to Maryland v Wilson