Crim Pro: Investigations

state action

1. On duty officers  are always state actors (US V. Poe) 

2. Off duty officer

   1. In what capacity are they acting in?

   2. How do they conduct themselves moving forward?

private actors (nexus)

1. Nexus Private actors become state actors if

   1. The government encouraged the private action (simple knowledge is not enough) 

      1. Promises

      2. Promoting self interest 

      3. Money

      4. direction/advice 

   2. The actor intended to assist the government

4th amendment search

Katz or trespass

Katz

1. Facts: FBI attaches listening device to outside of public phone booth → this was a search 

2. Rule: Katz Test: (1) subjective expectation of privacy (2) objective reasonableness (is that expectation one society is prepared to recognize as reasonable?)

Kyollo v. US

1. Police suspected Kyollo was growing marijuana in his home using heat lamps; used a thermal imager to detect whether the lamps were in the home 

2. Rule: Where the government used a device that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion into a constitutionally protected area, the surveillance is a “search” and is presumptively unreasonable without a warrant 

3. Purely visual observation is okay – this was more than a naked eye observation

Jones test

There is a search when the government (1) obtains or seeks to obtain information by (2) physically intruding onto (3) a constitutionally protected area

US v. Jones

1. Jones was suspected of trafficking narcotics, police attached GPS to undercarriage of his car and tracked his movements for 28 days  

2. Police had a warrant, but for 10 days (GPS placed on 11th day)

3. 2 ways of finding a search – (1) Katz + (2) trespass 

4. Rule: the warrantless placement of a GPS tracking device on the undercarriage of an individual’s vehicle in order to track the person’s movements on public streets constitutes an unlawful search in violation of 4th amendment 

5. Vehicle is an “effect” → police occupied pirate property to obtain info (Katz expanded old trespass rule, it did not displace it)

Florida v. Jardines

1. Based on tip that Jardines was growing marijuana, officer brought a drug-sniffing dog to sniff on the porch 

2. Rule: Use of a drug sniffing dog in the curtilage of a person’s home to determine whether drugs are inside constitutes a search under the 4th amendment 

3. Property law grants implied license to approach front door and knock; license does not extend to having a drug dog sniff 

4. Uses trespass rule 

5. Kagan Concurrence: court’s ruling is correct on property grounds, but same result under Katz test

mosaic theory

at some point, the information gathered is too excessive that the government is no longer seeing a small snapshot, but a full picture

Carpenter v. US

1. CLSI provides timestamped records of location → police used it to place Carpenter at scenes of various robberies 

2. Rule: (1) Accessing historical cell-phone records that comprehensively show a user’s movements constitutes a search for Fourth Amendment purposes. (2) A search to obtain records of cell-site location information generally requires a warrant based on probable cause

3. Court declines to extend third-party doctrine to this situation

Chatrie

The mosaic theory is not necessary in some situations (e.g., situations that are so intrusive, they constitute a search for even a short duration of time)

1. geofence/virtual perimeter – google location history for every cell in area surrounding bank (similar to CLSI)

2. Chatrie was one of the users and the data was used to link him to a bank robbery 

3. Court refused to apply third-party doctrine because cellphones are too integral to life (does not overrule doctrine, it just does not apply to certain situations)

CA v. Greenwood

1. Based on info that Greenwood was involved in narcotics trafficking, officer asked trash collector to give him Greenwood’s trashbags to search them 

2. Rule: “What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th Amendment protection.”

3. He exposed the garbage to the public = no search

third-party doctrine

once you voluntarily convey information to a third party, you assume the risk of disclosure to the government

US v. Miller

1. Bank records 

2. No reasonable expectation of privacy – information voluntarily shared with bank in ordinary course of business

Smith v. Maryland

1. Records of phone numbers dialed (NOT content of calls)

2. No search – caller voluntarily conveyed numbers to phone company

open fields doctrine

permits police officers to enter and search a field without a warrant

Oliver v. US

1. Police searched Oliver’s farm after reports of marijauna; passed no trespassing sign, found plants 1 mile from his home 

2. An individual has no legitimate expectation that open fields will remain free from warrantless intrusion – fields open to the public in a way the home is no

navigable airspace

one “knowingly” exposes the backyard to public viewing

CA v. Ciraolo

1. Based on tip Ciraolo was growing marijauna, police used a plane to look from above (fences surrounding backyard prevented ground level observation)

2. Subjective prong of Katz met, but objective prong not – no reasonable expectation of privacy when any member of the public could have viewed plants from a public airspace

FL v. Riley

1. Riley had a greenhouse behind his mobile home with some transparent and some opaque roof panels; based on tip he was growing marijuana, police used a helicopter to observe from above 

2. Greenhouse is part of curtilage so the subjective expectation of privacy is valid, but under Ciraolo, not reasonable to assume it was protected from aerial view 

3. Puts weight on compliance with air traffic laws

IL v. Caballes

1. Recognizes a limit to Kyollo 

2. Caballes was stopped for speeding, officers brought a drug-sniffing dog to sniff the car during the stop → marijuana was found 

3. Rule: The 4th amendment does not require reasonable, articulable suspicion to administer a canine sniff test during a routine traffic stop 

4. No legitimate interesting in possessing contraband (unlike Kyollo, where device could detect lawful, intimate activities)

location of search

where a search takes place determines reasonable expectation of privacy

Dunn Factors (open fields v. curtilage)

1. Proximity (e.g. 10 feet from house)

2. Enclosure (e.g. same fence surrounds house and garage)

3. Use (e.g. inlaw suite not attached to house)

4. Steps taken to increase privacy (e.g. locked door, tinted windows, high fence)

warrant requirements

1. Neutral, detached magistrate 

2. Based on PC

3. Supported by oath/affirmation

4. Particularly describes the place to be searched and person or things to be seized

PC for Arrest

(1) offense has been/is being committed; and (2) this is the person who is doing it

Virginia v. Moore

1. Officers got a tip that “Chubs” was driving without a license

2. They knew D by that name, so they pulled him over and arrested him → searched him and found cocaine 

3. Driving w/out a license is not an arrestable offense under state law

4. Prior case law says this arrest is allowed – arrest based on PC is sufficient to justify a seizure 

5. It is not dispositive that the state did not allow arrest for this offense

PC for search

(1) items subject to seizure (2) will be found in the place to be searched at the time to be searched

Gates rule

1. Totality of the Circumstances: basis of knowledge and reliability/veracity are not required, all allegations are considered together

IL v. Gates

1. Ds argued affidavit in support of warrant was inadequate 

2. Anonymous letter gave police info about how they transported drugs, when/where they were driving/flying etc → police partnered with DEA to corroborate some of these details before getting a warrant 

3. The letter alone was not an adequate basis for warrant – lacked basis of knowledge and reliability necessary under Spinelli

   1. Aguilar-Spinelli Two Prong Test 

      1. reliability/veracity

         1. Informant provided accurate info in the past

         2. Informant incriminates him/herself

         3. Police corroborate predicted future conduct 

      2. Basis of knowledge 

         1. Personal observation by informant 

         2. Hearsay from an identified source

         3. Sufficient detail inferring more than a rumor 

4. Rule: A warrant application satisfies the Fourth Amendment probable-cause requirement so long as it establishes a substantial basis for concluding that a search will uncover evidence of wrongdoing

5. Can’t break it down into such specifics – reliability and basis of knowledge should instead be considered as part of totality of circumstances 

6. Letter combined with independent police corroboration was sufficient for PC

D.C. v. Wesby

1. Officers responded to call about party in vacant house 

2. Found 21 partygoers, strip club, marijauna, etc. inside → the partygoers all claimed they had been invited to be there

3. They were all arrested 

4. They sued, asserting lack of PC b/c there was no evidence that the partygoers knew they were not allowed to be there 

5. To determine if there was PC, look at overall circumstances – House was clearly vacant and uninhabited; partygoers scattered when police arrived; Peaches was nervous and evasive when officers spoke to her 

6. There was PC that they weren’t allowed to be there

reasonable suspicion

1. Was the Stop Justified?

2. Was the Frisk Justified?

3. Was the Frisk within the Scope?

4. Was the detention within the scope?

Terry Rule

Police need reasonable suspicion that criminal activity is afoot to stop (Terry v. Ohio)

reasonable suspicion

specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant the intrusion

IL v. Wardlow

1. D fled when he saw officers patrolling a narcotics area 

2. High crime area alone cannot justify a stop, but it can be considered as a factor, and here, there was also flight

AL v. White

An anonymous tip, when corroborated by independent police observation of future actions, can provide reasonable suspicion for a Terry stop

FL v. JL

1. Police received an unverified tip claiming a young Black man was wearing a plaid shirt at a specific bus station had a gun

2. An anonymous tip that a person is carrying a gun does not, by itself, give police officers reasonable suspicion for a Terry stop 

3. “The reasonable suspicion here at issue requires that

a tip be reliable in its assertion of illegality, not just

in its tendency to identify a determinate person.”

Navarette v. CA

1. Tip from 9-1-1 caller that a truck had driven her off the road 

2. Reasonable suspicion for a Terry stop does not have to be based solely on officer’s personal observations

3. The call here was relatively reliable and gave rise to reasonable suspicion of intoxicated driving

Terry v. OH

1. Officer saw Terry and co-D on corner and thought they looked suspicious 

2. The 2 men repeatedly walked up and down, peering into a shops windows then conferring on the corner 

3. Officer approached the men and pat frisked there which revealed guns (he did not feel under their coats)

4. A “frisk” of outer clothing for weapons is different than a full blown search for evidence 

5. Government interests at stake – effective crime detection and prevention, ensuring person is not armed

6. It was reasonable for the officer to assume they might have weapons – so pat frisk was reasonable – must be limited in scope to search for weapons

scope of Terry

a limited search conducted only on the outer garments of clothing to look for weapons, not a general search

Terry is exceeded when

1. Suspects are moved from a place where they are allowed to be

   1. Hayes v. FL (2009) 

      1. The “line” between a Terry stop and an arrest was crossed when the police, without probable cause or a warrant, forcibly removed a person from a place in which he is entitled to be and transported him to the police station for investigation.

BUT police can move suspects from one location to another to continue investigation (e.g. moving 40ft within airport)

1. FL v. Royer 

   1. D was stopped in an airport concourse; agents kept his ticket and ID, had him accompany them to a small room about 40ft away, and retrieved his checked luggage without his consent

Hibbel v. Sixth Judicial District Court of Nevada,

Police can require a suspect to disclose their name during a lawful Terry stop

1. Police may conduct a protective search of a car if… → MI v. Long 

1. Reasonable suspicion that the suspect is armed and dangerous 

2. Must be confined to where a weapon could be hidden – not trunk; containers and compartments okay

PA v. Mimms

1. exit orders are okay for driver 

   1. Mimms was pulled over for an expired license plate

   2. Officers order him out of the vehicle, noticed a bulge in his jacket and did a pat frisk 

   3. officers may order a driver out of a lawfully stopped vehicle without needing any additional suspicion or justification 

MD v. Wilson

1. exit orders are okay for passengers 

   1. Police may order passengers out of the car during a lawful traffic stop without needing independent reasonable suspicion 

de facto arrest

When a reasonable person in the suspect’s position would believe that his or her freedom of action has been curtailed to a degree associated with a formal arrest or would conclude that he or she has been subjected to restraints comparable to those associated with a formal arrest.

US v Sharpe

1. DEA agent saw D driving a car that was heavily loaded and partially covered w/ quilted material 

2. DEA agent detained Sharpe for 20 minutes until another officer arrived

3. There is no exact time limit – Q is whether the police “diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly”

no-knock warrants

1. police must knock and announce before entering 

   1. The totality of circumstances can justify a no-knock entry  if knocking would be dangerous, futile, or impede investigation BUT a blanket exception is not permissible

Hudson v. MI

1. Police got warrant authorizing search for drugs and firearms in Ds home – they found both 

2. Police announced their presence but only waited 3-5 seconds before opening the door 

3. The interests protected by the announce-and-knock are different than right to shield persons and papers from government w/out a warrant – knock requirement does not shield potential evidence from government 

   1. Knock and announce gives D opportunity to comply with law to prevent destruction of property/ violence in self-defense 

4. Exclusionary rule is inapplicable to warranted search – deterrence does not outweigh social cost

invalidity/mistake

1. Invalid: If a warrant is invalid/ not executed properly, it is treated as if there was no warrant (e.g. warrant had to be executed by the 10th but was executed on the 11th)

2. Mistake: If police make a mistake in executing a warrant (MD v. Garrison, 3rd floor apartment)

   1. Reckless standard: (1) Did officer have information, (2) did they have a duty to discover information

      1. If no, then warrant is still valid despite mistake

SITLA (Search Incident to Lawful Arrest)

once police have lawfully arrested a suspect, they may search to find weapons or prevent the destruction of evidence

Chimel rule

1. Chimel Rule: officers may conduct a search 

   1. after/contemporaneous with a lawful arrest 

   2. To find weapons and protect evidence 

   3. Of the arrestee and the area within the arrestee’s immediate control 

      1. Extend to immediately adjoining spaces where a person could hide (Maryland v. Buie)

Chimel v. CA

1. Incident to arrest, officers searched D’s entire home, including opening drawers, etc. 

2. There is justification to search D’s person and area within his immediate control – the scope of this search was unreasonable

US v. Robinson

1. Officer pulled D over for operating w/ revoked license – there was PC for arrest

2. Officer then searched D, found a cigarette box in his pocket, opened it, and found heroin

3. Court held this search was OK (dissent adamantly disagreed)

4. Officer only needed PC of some arrestable offense (VA v. Moore – it does not matter if it is an arrestable offense)

SITLA and Cars

1. officers may search a vehicle under SITLA if 

   1. Arrestee is unrestrained and within reach of the passenger compartment

   2. They have reason to believe the vehicle contains evidence relating to the arrest (e.g. arresting for drug offense and have reason to believe there are drugs in the car) 

AZ v. Gant

1. D was arrested for driving w/ a suspended license

2. After he was handcuffed in the back of a squad car, the officers searched his car and found drugs 

3. Neither Chimel or Gant rule applied – D was already restrained so car was not in immediate control and it was not a drug offense

Riley v. CA

1. D was stopped for driving with expired registration and arrested 

2. Police searched car incident to arrest and found loaded firearms; also took his phone to search for evidence of gang involvement 

3. This search was far too intrusive and exceeded SITLA 

plain view

officer can seize evidence without a warrant if they view it from (1) a lawful vantage point/lawful right of access (2) the evidence is in plain sight and (3) the incriminating character is immediately apparent (Coolidge v. NH) (1971); there used to be an inadvertence requirement, but it was eliminated in Horton v. CA (1990)

AZ v. Hicks

If police are moving or inspecting an item, they need PC, not just reasonable suspicion

MN v. Dickerson

1. Police officers may seize contraband under plain feel doctrine as long as it is immediately apparent through touch that the item is contraband 

2. It was not immediately apparent that the rock in D’s pocket was cocaine – so plain feel did not apply in this case (officers cannot manipulate or squeeze object once it is clear its not a weapon)

automobile exception

allows officers to search a motor vehicle without a SW if they have PC to believe it contains contraband or evidence of a crime (hinges on ready mobility)

Chambers v. Maroney

1. “[W]here there is probable cause to search an automobile stopped on the highway . . . an immediate [warrantless] search is constitutionally permissible.”

CA v. Carney

1. Is a fully mobile “motor home” subject to the automobile exception? 

2. DEA believed motor home was involved in exchange of drugs for sex – based on tip + surveillance → searched the car 

3. Court refuses to distinguish between a vehicle and a mobile home – automobile exception applies

container doctrine

If police have probable cause to believe contraband or evidence is within a container, they can seize the container, but (absent recognized exceptions to the warrant requirement) they need to get a search warrant to open and search it (US v. Chadwick, 1977)

CA v. Acevedo

1. Does the automobile exception apply to a closed container in the trunk of a car?

2. DEA officer saw D leave apartment and put a package into trunk that officer had PC to believe contained drugs 

3. Police then searched trunk and found drugs in package 

4. Automobile exception can include container if there is PC

consent

consent justifies warrantless search if (1) the person giving consent has actual or apparent authority to do so and (2) consent was freely and voluntarily given

Matlock

a person w/ common authority over the premises may/may not consent to a search; that consent is valid against an absent, nonconsenting co-occupant

Schneckloth v. Bustamonte

1. One of the members in pulled over car consented to search → officer found three stolen checks 

2. Q was whether the consent was voluntary – use totality of circumstances to determine whether consenting party’s will was overborne (cannot be coercion) 

3. No coercion here – even though it was unclear that he knew he had a choice

IL v. Rodriguez

Consent of third party is valid if police reasonably believe the party has common authority

GA v. Randolph

1. D + his wife were divorced and in a dispute 

2. Wife let officers search over D’s objection 

3. If the D is physically present – his refusal trumps the cohabitant's consent 

Randolph does not apply when the objecting party is not present (Fernandez v. CA) UNLESS the police removed objecting party for the sake of removing objection

US v. Watson

Even in custody, consent must be voluntary

Chatman v. US

Landlords may not consent for tenants

exigent circumstances

1. (1) hot pursuit; (2) public safety; (3) destruction of evidence

   1. Exigency cannot be created by police conduct – police may not threaten to do something they cannot do

   2. Exception ends when the exigency ends

Warden v. Hayden

1. Employees reported robber running into Ms. Hayden’s house 

2. Police barged in and searched, found Hayden fainting sleep upstairs 

3. Found gun in toilet, and seized clothes from washing machine and cap from under mattress

4. This was all within the scope of searching for persons and weapon 

Lange v. CA

A fleeing misdemeanor suspect is not categorically an exigent circumstance that justifies entering a home (Lange v. CA); case-by-case analysis required for misdemeanors

public safety/emergency aid

police may assist persons who are seriously injured or are threatened with such injury

Brigham City, Utah v. Stuart

1. Police responded to a loud party; when they arrived in the backyard, they observed a violent altercation inside the house 

2. They entered the house to break it up

3. The officers here made an objectively reasonable determination

Michigan v. Fisher

1. Police responded to a disturbance that D was acting crazy; windows were shattered, D had a cut on his hand and was screaming 

2. Officers were justified, they did not need to definitively know there was a life-threatening injury to enter

Caniglia v. Strom

1. Community caretaking (e.g. removing hazards, checking on well-being) does NOT extend to the home

2. After a man displaying erratic behavior was removed from his home, officers could not return and seize his firearms → the exigency had ended

Kentucky v. King

1. Police set up a controlled drug buy; accidentally knocked on door of left apartment (misheard radio re right or left)

2. Knocked and announced they were police – they heard noises inside that sounded like the destruction of evidence → entered and found drugs 

3. Ds argued this was a police-created exigency → court rejects this and finds the search valid 

   1. Bad faith test – rejected; inquiry is objective, not subjective 

   2. Reasonable foreseeability – rejected; unpredictable and impractical for officers

   3. PC + Time to get Warrant – rejected; interferes with legitimate investigative strategies 

   4. Standard/Good Investigative Tactics – rejected; provides no clear guidance to officers or courts 

4. Adopted test: Police conduct preceding the exigency must be reasonable — it must not violate or threaten to violate the Fourth Amendment.

IL v. McArthur

2-hour seizure of premises upheld while officers went to get a warrant

MO v. McNeely

1. Is alcohol in bloodstream per se an exigent circumstance? 

2. D was pulled over for erratic driving and refused breath test – officer then took him to forcibly conduct blood test  

3. Court rejects per se rule – must be a case-by-case analysis (may be justified by totality of circumstances in a specific case)

   1. Ex: Schmerber v. CA – D was in a car accident and taken to a hospital; warrantless blood test was allowed

Birchfield v. ND

1. States have implied consent laws – which threaten license suspension for refusing to submit to testing 

2. Do not violate 4th amendment as to breath tests because they are minimally intrusive – do violate 4th amendment as to blood tests

Welsh v. WI

1. W saw D driving erratically then pull into an open field and abandon his car 

2. Police went to D’s house and arrested him 

3. This was not hot pursuit or public safety – officers needed a warrant

special needs/administrative searches

Balancing test: (1) significant government need (2) efficiency of search in meeting need (3) intrusiveness of search (4) privacy interests of individuals being searched

MI v. Sitz

1. Michigan PD established checkpoints in which vehicles were briefly pulled over for signs of intoxication; only held further if there were signs 

2. Intrusion of checkpoints minimal compared to huge drunk driving issue – checkpoint is reasonable

Indianapolis v. Edmond

1. City set up checkpoints to detect narcotics – look for signs of intoxication + sniffed by drug dogs → search only continues w/ consent or individualized suspicion 

2. General interest in crime control is not enough to dispose of individualized suspicion requirement – checkpoints violated 4th amendment 

3. Sitz holding still stands

Lidster

information-seeking checkpoints are okay

Immigration checkpoint

1. Routine stops and brief citizenship questioning at permanent, fixed Border patrol checkpoints do not violate 4th amendment (US v. Martinez-Fuentes)

2. But, a warrantless automobile search conducted far from the international border violates 4th amendment (Almeida-Sanches v. US)

3. And, Border patrol cannot stop a vehicle near the US-Mexico border based solely on the occupants appearing to be Mexican (US v. Brigoni-Ponce)

school searches

students have a diminished expectation of privacy

NJ v. TLO

1. Teacher caught 2 girls smoking in the bathroom → principal searched students purse 

2. Warrant requirement relaxed in school environment – search must be justified at its inception and reasonably related in scope

Drug testing in schools

1. Random urine analysis for student athletes does not violate 4th amendment b/c decreased expectation of privacy (Vernonia, 1995) 

2. Extended to ALL competitive extracurricular participants in Earls, 2002

employee drug testing

1. Can drug test railroad employees after accidents (Skinner, 1989)

2. Can drug test customs agents (Von Raab, 1989)

3. Cannot drug test political candidates (Chandler, 1997)

hospital searches

1. Ferguson v. CIty of Charleston (2001)

   1. Public hospital drug-tests pregnant patients 

   2. Positive results → arrested 

   3. Hospital itself might have been allowed to do warrantless drug searches, but because they turned the info over to law enforcement → violates 4th amendment

inventory searches

Not for investigation purposes, meant to protect police safety, ∆ from theft, and police from accusations of theft

SD v. Opperman

1. South Dakota v. Opperman (1976)

   1. D’s car was towed to impoundment lot 

   2. If police have procedure for inventorying an impounded car in place – search of car is okay 

2. The rule extends to a search of a purse taken as inventory when a woman was brought into the stationhouse (Illinois v. Lafayette)

3. If there is no standardized criteria for searching an impounded vehicle → search violates 4th amendment (FL v. Wells)

Strip Searches & DNA

1. Strip Searches & DNA 

   1. Florence (2012) – strip searches at jail intake are OK – even for minor offenses

   2. Maryland v. King (2013) – DNA buccal swab at booking for serious crimes is OK

seized

A person is seized if a reasonable person in that situation would have believed that they were not free to leave (Totality of the Circumstances) →

US v. Mendenhall

1. Display of weapons

2. Number of officers

3. Physical contact of officers

4. Language and tone of voice by officers

CA v. Hodari D.

1. Rule: A seizure happens when police apply (1) intentional physical force or (2) a show of authority with actual submission by suspect 

   1. California v. Hodari D. (1991)  

      1. Hodari D. was being chased by police; before he was tackled, he threw a rock of cocaine 

      2. Rule: for a show of authority (as opposed to physical force), there is no seizure unless the suspect actually submits 

      3. Officer yelling stop was not a seizure, he disposed of the cocaine before he was seized