MAKING SENSE OF
SEARCH AND SEIZURE LAW:
A FOURTH AMENDMENT HANDBOOK
2012 SUPPLEMENT
Phillip A. Hubbart
CAROLINA ACADEMIC PRESS
Durham, North Carolina
Copyright © 2012
Phillip A. Hubbart
All Rights Reserved
Carolina Academic Press
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Durham, North Carolina 27701
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MAKING SENSE OF SEARCH AND SEIZURE LAW:
A FOURTH AMENDMENT HANDBOOK
2012 SUPPLEMENT
Phillip A. Hubbart
__________________________________________________________________
Introductory Note.
This supplement covers all U.S. Supreme Court cases on the Fourth Amendment
decided between December 31, 2005 [the cut-off date for such decisions in the
book] and December 31, 2011 — a six year period.
During that time, some significant changes in Fourth Amendment law have
occurred — many limiting Fourth Amendment rights. In particular, the Fourth
Amendment exclusionary rule, covered in Chapter 17, has undergone remarkable
changes that have further constricted the reach of the rule.
ACCORDINGLY, THIS SUPPLEMENT SHOULD BE CAREFULLY
CONSULTED — ELSE SOME SERIOUS MISCONCEPTIONS OF
EXISTING FOURTH AMENDMENT LAW MAY VERY WELL ARISE.
ALSO PAST SUPPLEMENTS SHOULD NOT BE RELIED ON — AS THE
LAW MAY HAVE CHANGED AFTER THAT SUPPLEMENT WAS
ISSUED.
This supplement also includes additional material prompted by comments made by
my colleagues and students since the book was first published — as well as my
own independent review of the book.
__________________________________________________________________
CONTENTS
Table of Contents Revisions ........................................................................................................... 1
Chapter 1 Introduction ................................................................................................................... 3
PART I-Historical Background & Purpose of the Fourth Amendment
Chapter 3. The English Experience: General Warrants Controversy 1762-70 ................................. 5
PART II- Substantive Law of the Fourth Amendment
Chapter 7. Interpretation of the Fourth Amendment Approaches
to Constitutional Construction........................................................................................................... 6
Chapter 9. Search or Seizure Element: Seizures of Persons,
Houses, Papers or Effects …............................................................................................................. 12
Chapter 10. Search or Seizure Element: Searches of Persons,
Houses, Papers or Effects.................................................................................................................. 14
Chapter 11. General Rules and Principles of Unreasonableness....................................................... 19
Chapter 12. Initial or Secondary Fourth Amendment Intrusion:
Seizures of Persons or Property......................................................................................................... 23
Chapter 13. Initial Fourth Amendment Intrusion:
Searches of Private Premises Conducted with a Warran.................................................................. 30
Chapter 14. Initial or Secondary Fourth Amendment Intrusion: Warrantless Searches and
Criminal Exceptions to the Search Warrant Requirement Rule........................................................ 36
Chapter 15. Initial or Secondary Fourth Amendment Intrusion: Warrantless Searches and Civil
or Special Needs Exceptions to the Search Warrant Requirement Rule ........................................... 53
Chapter 16. Special Unreasonableness Requirement Problems ........................................................ 60
Chapter 17. Historical Development, Nature and Purpose of the Exclusionary Rule....................... 63
Table of Cases and Authorities in Supplement............................................................................. 91
Other Authorities ............................................................................................................................ 97
i
TABLE OF CONTENTS REVISIONS [pp. vii-xvi]
Chapter 11. General Rules and Principles of Unreasonableness
Section 2. General Definition of “Unreasonableness”: Balancing Test and
Objective vs. Subjective Factors
_____________________________
Chapter 12. Initial or Secondary Fourth Amendment Intrusion: Seizures of
Persons or Property
Section 1 c. Rename this subsection as follows:
Probable cause justifies custodial arrest for any offense: no limitation for
minor offenses or where arrest is unlawful under state law
_____________________________
Chapter 13. Initial Fourth Amendment Intrusion: Searches of Private
Premises Conducted with a Warrant
Section 2. Probable Cause Requirement
Add a new subsection:
i. Anticipatory search warrants
_____________________________
Chapter 14. Initial or Secondary Fourth Amendment Intrusion: Warrantless
Searches and Criminal Exceptions to the Search Warrant Requirement Rule
Section 2f. Rename this subsection as follows:
Arrest of motor vehicle driver or passenger
_____________________________
Chapter 17. Historical Development, Nature and Purpose, and Substantive
Law of the Exclusionary Rule
1
Section 5. Exceptions to the Exclusionary Rule in Criminal Trials
Rename sub-sub section 5c[1]
Balancing test
Add two new sub-subsections:
Section 5c(5). Arrest based on negligent police computer error
Section 5c(6). Search based on a binding appellate precedent later
overruled
2
Chapter 1. Introduction
§ 1. The Importance and Limit of Fourth Amendment Freedom
§ 2. Basic Principles and Organizational Structure of Fourth Amendment Law
§ 3. Growth and Complexity of Fourth Amendment Law
§ 4. Other Sources of Search and Seizure Law
§ 5. General Framework for Analyzing a Fourth Amendment Question in a
Criminal Case
_____________________________
§ 1. The Importance and Limit of Fourth Amendment Freedom [pp. 3-8]
Fn. 15. After the Minnesota v. Carter citation in this footnote, insert the
following:
, quoted with approval in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 1523,
164 L.Ed.2d 208 (2006).
§ 3. Growth and Complexity of Fourth Amendment Law [pp. 13-16]
p. 13, 1st paragraph. Delete the first two sentences in the text, along with the
accompanying footnotes nos. 45-48. Substitute the following:
Over 400 cases on the Fourth Amendment were decided by the U.S. Supreme Court
from 1791-2011. Fn. 45. Only five of these cases were decided prior to 1900, Fn.
46. and only 91 were decided in the twentieth century prior to the landmark 1961
decision of Mapp v. Ohio Fn. 47. which applied the Fourth Amendment
exclusionary rule to the states. The balance, over 300 cases or 75% of the total, are
post-Mapp decisions rendered during a scant 50-year period, 1961-2011. Fn. 48.
_____________________________
Fn. 45. This exact case count is 421 and is current through the end of December
2011. The count, however, includes some selected early wiretapping, electronic
eavesdropping, and search warrant execution cases which have Fourth Amendment
implications but technically were decided under federal statutes. All references to
Fourth Amendment case counts should be read with this caveat in mind.
3
Fn. 46. The two most important cases were: Boyd v. United States, 116 U.S. 616,
29 L.Ed. 746, 6 S.Ct. 524 (1886); and In re Jackson, 96 U.S. 727, 24 L.Ed. 877
(1877). The remaining cases were of lesser significance: Murray v. Hoboken Land
& Imp. Co., 59 U.S. 272, 18 How. 272, 15 L.Ed. 372 (1855); Ex Parte Burford, 7
U.S. 448, 3 Cranch 448, 2 L.Ed. 495 (1806). There were no Fourth Amendment
decisions rendered in the brief period between 1791-1800.
Fn. 47. 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
Fn. 48. In the preface to the first edition of his treatise on the Fourth Amendment,
Professor LaFave notes that “[a]t least in the years following the Supreme Court’s
landmark decision in Mapp v. Ohio in 1961, it is beyond question that the Fourth
Amendment has been the subject of more litigation than any other provision of the
Bill of Rights.” l Wayne LaFave, Search and Seizure IX (4th ed. 2004).
_____________________________
4
Part I. Historical Background and Purpose of the Fourth Amendment
Chapter 3. The English Experience: General Warrants Controversy 1762-70
§ 1. Introduction
§ 2. English Decisions Condemning the General Warrant
§ 3. Impact of English General Warrant Decisions in England and America
§ 4. Parliamentary Efforts to Abolish the General Warrant
_____________________________
§ 4. Parliamentary Efforts to Abolish the General Warrant [pp. 48-49]
p. 49. Add the following to the last sentence in this section following numbered
footnote 55:
, and has since reverberated as a fundamental privacy principle throughout our
entire national history. Fn. 55a.
Fn. 55a. “We have, after all, lived our whole national history with an understanding
of the ‘ancient adage that a man’s home is his castle to [t]he point that the poorest
man may in his cottage bid defiance to all the forces of the Crown.’”Georgia v.
Randolph, 547 U.S. 103, 126 S.Ct. 1515, 1524, 164 L.Ed.2d 208 (2006), quoting
from Miller v. United States, 357 U.S. 301, 307, 78 S.Ct. 1190, 2 L.Ed.2d 1332
(1958).
_____________________________
5
Part II. Substantive Law of the Fourth Amendment
Chapter 7. Interpretation of the Fourth Amendment: Approaches to
Constitutional Construction
§ 1. Introduction
§ 2. The Historical Approach
§ 3. The Balancing of the Interests Approach
§ 4. The Common Law Reasoning Approach
_____________________________
§ 1. Introduction [pp. 85-87]
Fn. 2.
Akhil Amar, America’s Constitution (2005); Stephen Breyer, Active Liberty
(2005).
Add the following materials to the last paragraph, at the end of the second
sentence:
Fn. 6a.
For a representative example of how the Court has used the historical approach,
together with the common law reasoning approach (history of prior cases and
principled adjudication), to interpret the Fourth Amendment, see: Virginia v.
Moore, 553 U.S. ___, 128 S.Ct. 1598, 170 L.Ed.2d 559(2008) (historical approach:
Part II of the opinion); (common law reasoning, past history of cases approach: Part
IIIA of the opinion) ;and (common law reasoning, principled adjudication approach:
Part IIIB of the opinion).
_____________________________
6
§ 2. The Historical Approach [pp. 88-95]
a. An overview to the historical approach
Fn. 9. Add the following to the outset of this footnote:
“In determining whether a search or seizure is unreasonable [under the Fourth
Amendment], we begin with history. We look to the statutes and common law of
the founding era to determine the norms the Fourth Amendment was meant to
preserve.” Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 1602, 170 L.Ed. 2d
559 (2008). “To determine what is an ‘unreasonable’ search under the Fourth
Amendment, we look first to the historical practices the Framers sought to preserve;
if those provide inadequate guidance, we apply traditional standards of
reasonableness. “Arizona v. Gant, 556 U.S. ___, 129 S.Ct. 1710, 1724, 173 L.Ed.2d
485 (2009) (Scalia, J. concurring) (“Since the historical scope of officers’ authority
to search vehicles incident to arrest is uncertain, [citation omitted], traditional
standards of reasonableness govern.” id.).
Add the following to the end of this footnote:
“The study of history for the purpose of ascertaining the original understanding of
constitutional provisions is much like the study of legislative history for the purpose
of ascertaining the intent of the lawmakers who enact statutes. In both situations the
facts uncovered by the study are usually relevant but not necessarily dispositive.”
Georgia v. Randolph, 547 U.S. ___, 126 S.Ct. 1515, 1528, 164 L.Ed.2d 208 (2006)
(Stevens, J. concurring). See also Justice Scalia’s discussion of originalism as
applied to the Randolph case. 126 S.Ct. at 1539-41 (Scalia, J. dissenting).
c. Post-Boyd cases utilizing the historical approach
(1) Historical analysis cases
Fn. 27. Add the following to the outset of the footnote:
Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 1602-04, 170 L.Ed. 2d 559
(2008).
________________________________
7
§ 3. The Balancing of the Interests Approach [pp. 95-103]
a. An overview to the balancing approach: comparison with historical
approach
p. 96. Delete the second quotation on this page and insert the following:
“When that [historical] inquiry yields no answer, we must evaluate the search
or seizure under traditional standards of reasonableness by assessing, on the
one hand, the degree to which it intrudes on an individual’s privacy and, on
the other, the degree to which it is needed for the promotion of legitimate
governmental interests.” [Fn. 39]
Fn. 39. After the Wyoming v. Houghton citation, insert the following:
; see, Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 1604, 170 L.Ed. 2d 559
(2008).
Fn. 41. After the second sentence in this footnote, insert the following:
Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 2197, 165 L.Ed.2d 250 (2006);
p. 97. At the end of the first complete paragraph in text, insert the following:
It should be noted, however, that “a generalized interest in expedient law
enforcement cannot, without more, justify a warrantless search.” Fn. 41a.
Fn. 41a. Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 1524, n. 5, 164
L.Ed.2d 208 (2006), citing:“[T]he privacy of a person’s home and property may not
be totally sacrificed in the name of maximum simplicity in enforcement of the
criminal law.” Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d
290 (19 78); and “The warrant requirement . . . is not an inconvenience to be
somehow ‘weighed’ against the claims of police efficiency.” Coolidge v. New
Hampshire, 403 U.S. 443, 481, 91 S.Ct. 2022, 29 L.Ed. 2d 564 (1971).
______________________________
8
b. General applications of the balancing approach
(2) Unusual searches and seizures
p. 101, fn. 63. Add:
Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1778-79, 167 L.Ed.2d 686 (2007)
p. 101, first complete paragraph, second to last line. After the word
“probationer”, insert the following:
or parolee, Fn. 68a.
Fn. 68a. Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250
(2006);.
_____________________________
c. Related balancing approaches in the administration of the exclusionary rule
Fn. 71. Add this case at the end of the citations following the first sentence in
this footnote:
Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 2165-68, 165 L.Ed.2d 56
(2006) (“knock and announce” violations).
p. 102. Add the following sentence to the first complete paragraph, last
sentence:
Moreover, the flagrancy of the Fourth Amendment violation weighs in favor of
applying the exclusionary rule so as to deter such serious misconduct — while less
egregious violations weigh against such application. Fn. 71a.
9
Fn. 71a. “The extent to which the exclusionary rule is justified by these deterrence
principles varies with the culpability of the law enforcement conduct. As we said in
Leon, ‘an assessment of the flagrancy of the police misconduct constitutes an
important step in the calculus’ of applying the exclusionary rule. [citation omitted].”
Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 701, 172 L.Ed.2d 496
(2009).
_____________________________
§ 4. Common Law Reasoning Approach [pp. 103-08]
b. History of prior court decisions
Fn. 79.
Michigan v. Fisher, 558 U.S., 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (applying
Brigham City v. Stewart, 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006);
Fn. 80.
Safford Unified School District No. 1 v. Redding, 559 U.S. ___, 129 S.Ct. 2633,
174 L.Ed.2d 354 (2009) (applying the TLO standard for public school student
searches); Arizona v. Johnson , 553 U.S. ___, 129 S.Ct. 881, 172 L.Ed.2d 694
(2009) (applying a line to Terry v. Ohio cases in a traffic stop context); Brigham
City v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (applying a
line of U.S. Supreme Court cases upholding a warrantless entry onto private
premises under exigent circumstances, regardless of the subjective motivations of
the officers making such an entry)
Fn. 83.
See also Kentucky v. King, 563 U.S. ___, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011)
(re-stating the law on the exigent circumstances exception to the search warrant
requirement rule and extending this law using its past cases and principled reasons
for doing so).
10
Fn. 82.
Arizona v. Gant, 556 U.S. ___, 129 S.Ct. 1710, 172 L.Ed.2d 694 (2009)
(distinguishing and modifying New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860,
69 L.Ed.2d 768 (1981) as to the scope of search incident to the arrest of an occupant
of an automobile); Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1777, 167 L.Ed.2d
686 (2007) (distinguishing Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85
L.Ed.2d 443, 455-56 (1985), in a § 1983 action involving alleged use of deadly
force to effect an arrest); Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160
L.Ed.2d 842 (2005) (distinguishing Kyllo v. United States, 533 U.S. 27, 121 S.Ct.
2038, 150 L.Ed.2d 94 (2001), as to what constitutes a Fourth Amendment search in
a narcotics “dog sniff” case).
_____________________________
c. Principled adjudication
Fn. 85. Add the following to the beginning of this footnote:
“Revisiting precedent is particularly appropriate where, as here, a departure would
not upset expectations, the precedent consists of a judge-made rule that has recently
been adopted to improve operation of the courts, and experience has pointed up the
precedent’s shortcomings.” Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 816,
172 L.Ed.2d 565 (2009) (giving principled reasons for overruling, in part, Saucier v.
Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 2L.Ed.2d 72 (2001), which had set up a
mandatory two-step process for ruling on a defendant’s motion for summary
judgment based on the affirmative defense of qualified immunity in a civil rights
action claiming a Fourth Amendment violation).
“The doctrine of stare decisis is, of course, ‘essential to the respect accorded to the
judgments of the Court and to the stability of the law,’ but it does not compel us to
follow a past precedent when its rationale no longer withstands ‘careful analysis.’
[citation omitted]. We have never relied on stare decisis to justify the continuance
of an unconstitutional police practice.”Arizona v. Gant, 556 U.S. ___, 129 S.Ct.
1710, 1722, 172 L.Ed.2d 694 (2009) (modifying New York v. Belton, 453 U.S.
454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) which had allowed an automatic police
search of a vehicle whenever the driver or passenger of same was arrested).
11
“I recognize that stare decisis is not an inexorable command, and applies less
rigidly in constitutional cases. But the Court has said that a constitutional precedent
should be followed unless there is a special justification for its abandonment.
Relevant factors identified in prior cases include whether the precedent has
engendered reliance; whether there has been an important change in circumstances
in the outside world; whether the precedent has proven to be unworkable; whether
the precedent has been undermined by later decisions; and whether the decision was
badly reasoned. Arizona v. Gant, 556 U.S. ___, 129 S.Ct. 1710, 1728, 173 L.Ed.2d
485 (2009) (internal citations and quotes omitted) (Alito, J. dissenting).
Fn. 86.
Georgia v. Randolph, 547 U.S.103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) (giving
principled reasons for striking down a warrantless search of private premises where
one occupant of the premises consents to the search, but a physically present cooccupant of the premises expressly objects to the search)
_____________________________
II. Substantive Law of the Fourth Amendment
Subpart A. The “Standing” Requirement
Chapter 9. Search or Seizure Element: Seizures of Persons, Houses, Papers or
Effects
§ 1. Overview of Search or Seizure Element
§ 2. Seizure of the Person
§ 3. Seizure of House, Papers or Effects: Interference with Possessory Interest Test
_____________________________
12
§ 2. Seizure of the Person
a. Physical seizure
p. 121. Add the following material in the text following fn. 8:
; or ramming a pursuing police car into a vehicle fleeing from police in order
terminate the fleeing vehicle’s freedom of movement. Fn. 8a.
Fn. 8a. “Scott [the police officer] does not contest that his decision to terminate the
car chase by ramming his bumper into respondent’s [suspect’s] vehicle constitutes a
‘seizure [of the person].” “‘A Fourth Amendment seizure [occurs] . . . when there is
some governmental termination of freedom of movement by means intentionally
applied’.” [citations omitted]. Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776,
167 L.Ed.2d 686 (2007).
_____________________________
b. Submission-to-authority seizure: contrast with “mere contact”
p. 122, second complete paragraph. Add the following footnote to the end of
the last sentence in this paragraph.
Fn. 10a.
See e.g. Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 2405, 168 L.Ed.2d
132 (2007).
p. 123, first complete paragraph. Add the following sentence at the end of this
paragraph.
Moreover, not only is the driver seized in these traffic stop scenarios, but also any
passenger in the automobile. Fn. 18a.
Fn. 18a. “When a police officer makes a traffic stop, the driver of the car is seized
within the meaning of the Fourth Amendment. The question in this case is whether
the same is true of the passenger. We hold that a passenger is seized as well and so
may challenge the constitutionality of the stop.” Brendlin v. California, 551 U.S.
249, 127 S.Ct. 2400, 2403, 168 L.Ed.2d 132 (2007).
13
_____________________________
II. Substantive Law of the Fourth Amendment
Subpart A. The “Standing” Requirement
Chapter 10. Search or Seizure Element: Searches of Persons, Houses, Papers
or Effects
§ 1. Introduction
§ 2. General Test: Governmental Invasion of One’s Reasonable Expectation of
Privacy
§ 3. First Component of a Fourth Amendment “Search”: Complaining Party Must
Have a Reasonable Expectation of Privacy as to Protected Interests
§ 4. Second Component of a Fourth Amendment “Search”: A Government Agent
Must Invade the Complaining Party’s Reasonable Expectation of Privacy
§ 5. Special Search or Seizure Element Problems
_____________________________
Section 2. General Test: Governmental Invasion of One’s Reasonable
Expectation of Privacy [pp. 130-34]
Fn. 2. Add the following to the end of this footnote:
On the other hand, “[o]fficial conduct that does not ‘compromise any legitimate
interest in privacy’ is not a search subject to the Fourth Amendment. We have held
that any interest in possessing contraband cannot be deemed ‘legitimate,’ and thus
governmental conduct that only reveals the possession of contraband ‘compromises
no legitimate privacy interest.’ This is because the expectation ‘that certain facts
will not come to the attention of the authorities’ is not the same as an interest in
‘privacy that society is prepared to consider as reasonable.’” Illinois v. Caballes,
543 U.S. 405, 125 S.Ct. 834, 837-38, 160 L.Ed.2d 842 (2005) (internal citations
omitted). Examples of such official conduct revealing solely the possession of
contraband are (1) a narcotics “dog sniff” of a car, Illinois v. Caballes, supra; and
(2) a chemical test of a powder to determine whether it is cocaine. United States v.
Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85, 100-101 (1984). See
Section 5c, infra, of this chapter for a discussion of narcotic “dog sniffs.”
14
_____________________________
§ 3. First Component of Fourth Amendment “Search”: Complaining Party
Must Have a Reasonable Expectation of Privacy as to Protected Interests [p.
134-51]
c. Reasonable expectation of privacy as to one’s “papers or effects”:
complaining party’s substantial connection thereto
(2) complaining party’s substantial connection thereto
Fn. 108. Add the following material to this footnote:
“When a police officer makes a traffic stop, the driver of the car is seized within the
meaning of the Fourth Amendment. The question in this case is whether the same is
true of the passenger. We hold that a passenger is seized as well and so may
challenge the constitutionality of the stop.” Brendlin v. California, 551 U.S. 249,
127 S.Ct. 2400, 2403, 168 L.Ed.2d 132 (2007)
Moreover, the police seizure of property from the passenger compartment of the
automobile generally constitutes a Fourth Amendment seizure of property from the
possession of every occupant in the automobile. This is so because (a) a Fourth
Amendment seizure of a person’s property occurs when there has been some
meaningful governmental interference with the person’s possessory interests in the
property, whether that possession be legal or illegal [see Chapter 9, Section 3, pp.
126-27 of this work]; and (b) all occupants of an automobile, as a general rule, are
in constructive possession of all property in the passenger compartment of the
automobile and may be properly arrested for possessing any contraband drugs
found therein. [Maryland v. Pringle, 540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769
(2003)].
15
In sum :
1. A guest passenger of an automobile can challenge the constitutionality of
the automobile stop [Brendlin v. California, supra], and if illegal, the
evidence secured in the automobile subsequent to the stop would be generally
inadmissible as the fruit of the poisonous tree.
2. But if the stop is lawful, a guest passenger cannot challenge the lawfulness
of the search of the automobile [Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421,
58 L.Ed.2d 387 (1978)].
3. Such a passenger can, however, challenge the lawfulness of the seizure of
any property taken from the passenger compartment of the automobile. But
the only basis for challenging such a seizure is that there was no probable
cause to believe that the item seized constituted contraband, evidence of
crime, or fruits or instrumentalities of crime. [See Chapter 12, Section 2b(3)
at 218-19 of this work].
§ 5. Special Search or Seizure Element Problems [pp. 155-58].
b. Wiretapping and electronic eavesdropping
p. 158. Add the following paragraph:
The Court has not yet considered whether it is a Fourth Amendment search for the
government to intercept e-mails, cellular phone calls, Facebook communications,
text messages, and pager transmissions. Given the rapidly expanding technology in
these and other similar communication devices, the Court has most reluctant to
decide these thorny issues until more is known about the technology — as well as
the way society views privacy expectations with respect to such devices. Fn. 152b.
_____________________________
16
Fn. 152 b.
“The Court must proceed with care when considering the whole concept of privacy
expectations in communications made on electronic equipment owned by a
government employer. The judiciary risks error by elaborating too fully on the
Fourth Amendment implications of emerging technology before its role in society
has become clear. *** Rapid changes in the dynamics of communication and
information transmission are evident not just in the technology itself but in what
society accepts a proper behavior. *** Cell phone and text message
communications are so pervasive that some persons may consider them to be
essential means for self-expression, even self-identification.” City of Ontario v.
Quon, 560 U.S. ___, 130 S.Ct. 2619, 2629-30, 177 L.Ed.2d 216 (2010) (Court
assumes arguendo that a police officer had a reasonable expectation of privacy in
text messages that he sent on a pager owned and provided to him by his government
employer, and that the latter’s audit of such messages constituted a search under the
Fourth Amendment).
_____________________________
c. Narcotic “dog sniffs” of luggage or cars
Fn. 153.
Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (car).
p. 158. Add the following after the end of the first complete paragraph.
The underlying rationale for this result is that a narcotics “dog sniff” is sui generis -- namely, the only thing the dog sniff reveals is the presence of contraband drugs in
the container or vehicle, nothing else. Fn. 154a. Even a false alert by the dog
reveals nothing else. Fn. 154b. And a person has no reasonable expectation of
privacy to keep hidden from public view contraband drugs. Accordingly there can
be no Fourth Amendment search in such a sniff Fn. 154c. --- as, by definition, a
Fourth Amendment search is an official invasion in one’s reasonable expectation of
privacy in otherwise protected interests. Fn. 154d. Stated differently, if a police
officer smells the aroma of marijuana emanating from a briefcase or car, it is clear
that no Fourth Amendment search has occurred. Fn. 154e. All the trained narcotics
dog does is act as a substitute for the officer’s sense of smell. Fn. 154f.
17
_____________________________
Fn. 154a. “In United States v. Place [citation omitted], we treated a canine sniff by
a well-trained narcotics detection dog as ‘sui generis’ because it ‘discloses only the
presence or absence of narcotics, a contraband item.’” Illinois v. Caballes, 543 U.S.
405, 125 S.Ct. 834, 838, 160 L.Ed.2d 842 (2005) (car). There is some dispute,
however, over whether all such dogs are that accurate. See Illinois v. Caballes, 543
U.S. 405, 125 S.Ct. 834, 839-40, 160 L.Ed.2d 842 (2005). (Souter, J. dissenting)
and authorities collected. ("The infallible dog, however, is a creature of legal
fiction.”).
Fn. 154b. Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 838, 160 L.Ed.2d 842
(2005).
Fn. 154c. “Official conduct that does not ‘compromise any legitimate interest in
privacy’ is not a search subject to the Fourth Amendment. We have held that any
interest in possessing contraband cannot be deemed ‘legitimate,’ and thus
governmental conduct that only reveals the possession of contraband ‘compromises
no legitimate privacy interest.’ This is because the expectation ‘that certain facts
will not come to the attention of the authorities’ is not the same as an interest in
‘privacy that society is prepared to consider as reasonable.’ . . . Accordingly, the use
of a well-trained narcotics detection dog --- one that does not expose noncontraband
items that otherwise would remain hidden from public view --- during a lawful
traffic stop, generally does not implicate legitimate privacy interests.” Illinois v.
Caballes, 543 U.S. 405, 125 S.Ct. 834, 837-38, 160 L.Ed.2d 842 (2005) (internal
citations omitted) (dog sniff of car conducted during a traffic stop held not a Fourth
Amendment search).
Fn. 154d. See supra Chapter 10, Section 2, n. 2 and authorities collected.
Fn. 154e. “[T]here is no ‘reasonable expectation of privacy’ from lawfully
positioned agents with ‘inquisitive nostrils.’ This means, for example, that no
search in a Fourth Amendment sense has occurred when a law enforcement officer,
lawfully present at a certain place, detects odors emanating from private premises,
from a vehicle, or from some personal effects nearby.” 1 Wayne LaFave, Search
and Seizure §2.2(a), at 454 (4th ed. 2004) and authorities collected (footnotes
omitted).
18
Fn. 154f. As an aside, however, it is arguably an open question whether law
enforcement officials can, without reasonable suspicion, use a trained narcotics dog
to smell people [or their property] who have not been seized at all --- such as people
as they walk down the public street, or in an airport, or while waiting in their
vehicle for a stoplight, or while residing in their home. But see Illinois v. Caballes,
543 U.S. 405, 125 S.Ct. 834, 839, 160 L.Ed.2d 842 (2005) (Souter, J., dissenting)
(“[A]n uncritical adherence to Place would render the Fourth Amendment
indifferent to suspicionless and indiscriminate sweeps of cars in parking garages
and pedestrians on sidewalks; if a sniff is not preceded by a seizure subject to
Fourth Amendment notice, it escapes Fourth Amendment review entirely unless it
is treated as a search.”).
_____________________________
II. Substantive Law of the Fourth Amendment
Subpart B. The “Unreasonableness” Requirement
Chapter 11. General Rules and Principles of Unreasonableness
§ 1. Search Warrant Requirement Rule
§ 2. General Definition of “Unreasonableness”: Balancing Test
§ 3. The Evidentiary Standards of Probable Cause and Reasonable Suspicion
§ 4. Other Important Rules and Principles
_____________________________
§ 1. Search Warrant Requirement Rule [pp. 161-67]
p. 163, Fn. 1. After the case of Maryland v. Dyson, insert the following:
Brigham City v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 1947, 164 L.Ed.2d 650
(2006) (“It is a basic principle of Fourth Amendment law that searches and seizures
inside a home without a warrant are presumptively unreasonable.”) (citation and
internal quotation omitted);
Arizona v. Gant, 556 U.S. ___, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009)
(“Consistent with our precedent, our analysis begins, as it should in every case
addressing the reasonableness of a warrantless search, with the basic rule that
‘searches conducted outside the judicial process, without prior approval of judge or
magistrate, are per se unreasonable under the Fourth Amendment — subject only to
19
a few specifically established and well delineated exceptions.’ [citation omitted]”) ;
Kentucky v. King, 563 U.S. ___, 131 S.Ct. 1849, 1856 179 L.Ed.2d 865(2011)
(“Although the text of the Fourth Amendment does not specify when a search
warrant must be obtained, this Court has inferred that a warrant must generally be
secured. It is a ‘basic principle of Fourth Amendment law’ we have often said ‘that
searches and seizures inside a home without a warrant are presumptively
unreasonable.’ (citations omitted).”
_____________________________
§ 2. General Definition of “Unreasonableness”: Balancing Test and Objective
vs. Subjective Factors
p. 168. At the end of this section, insert the following new text and footnotes.
Moreover, in determining whether a given search or seizure is reasonable, the
Court, with limited exceptions, has looked to objective factors surrounding the
incident— not the actual state of mind of the law enforcement officer conducting
the search or seizure. The test is whether a reasonably well-trained officer, under
the totality of the circumstances, would have conducted the search or seizure in
question — not what the officer actually believed or what his or her actual intent or
motivations were. Fn. 22a.
The two limited exceptions recognized to this approach has been where the officer
is conducting an inventory search or an administrative inspection search. Neither
search may be conducted in “bad faith” for the ulterior purpose of engaging in a
general exploratory search for evidence of crime. Fn. 22b.
Routinely, however, trial courts admit at least some testimony at motion to suppress
hearings as to what the arresting or searching officer’s actual intent or beliefs were
at the time of the incident in question — arguably on the basis that such evidence is
admissible as some evidence as to what reasonable officer would have done. The
Court, however, has not directly spoken to this issue.
_____________________________
20
Fn. 22a.
“An action is ‘reasonable’ under the Fourth Amendment, regardless of the
individual officer’s state of mind, ‘as long as the circumstances, viewed objectively,
justify [the] action.’ The officer’s subjective motivation is irrelevant. It therefore
does not matter here — even if their subjective motives could be so neatly
unraveled --- whether the officers entered the kitchen to arrest respondents and
gather evidence against them or to assist the injured and prevent further violence.”
Brigham City v. Stuart, 547 U.S. ___, 126 S.Ct. 1943, 164 Led. 2d 650 (2006) (the
exigent circumstances exception to the search warrant requirement rule held
applicable so that police could enter a private dwelling without a warrant —
regardless of the actual motivation of the officers in question).
“[A]lmost without exception in evaluating alleged violations of the Fourth
Amendment[,] the Court has first undertaken an objective assessment of an officer’s
actions in light of the facts and the circumstances then known to him. * * * [T]he
fact that the officer does not have the state of mind which is hypothecated by the
reasons which provide legal justification for the officer’s action does not invalidate
the action taken — as long as the circumstances, viewed objectively, justify that
action.” Scott v. United States, 436 U.S. 128, 137-38, 98 S.Ct. 1717, 57 L.Ed.2d
1150, 178, 179 (1978)(wiretap properly minimized regardless of the intent of the
listening law enforcement agent).
“We have never held outside limited contexts such as an ‘inventory search or
administrative inspection . . . , that an officer’s motive invalidates objectively
justifiable behavior under the Fourth Amendment.’ (citations omitted). The reasons
for looking to objective factors, rather than subjective intent, are clear. Legal tests
based on reasonableness are generally objective, and this Court has long taken the
view that ‘even-handed law enforcement is best achieved by the application of
objective standards of conduct, rather than standards that depend on the subjective
state of mind of the officer.’” (citations omitted). Kentucky v. King, 563 U.S. ___,
131 S.Ct. 1849, 1859, 179 L.Ed.2d 865 (2011).
“We think these cases foreclose any argument that the constitutional reasonableness
of traffic stops depends on the actual motivations of the individual officers
involved. * * * Subjective intentions play no role in ordinary, probable cause
analysis.” Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 1774, 135 L.Ed.2d
21
89 (1996) (traffic stop upheld for speeding based on probable cause, regardless of
officer’s alleged ulterior motive to obtain evidence for illegal drugs).
Fn. 22b.
“We have never held outside limited contexts such as an ‘inventory search or
administrative inspection . . . , that an officer’s motive invalidates objectively
justifiable behavior under the Fourth Amendment.’ (citations omitted).” Kentucky
v. King, 563 U.S. ___, 131 S.,Ct. 1849, 1859, 179 L.Ed..2d 865 (2011).
See Chapter 14, Section 2a(2) of this work and cases collected for inventory
exception to the search warrant requirement rule. Also see Chapter 14, Section
2c(1) of this work and cases collected for the administrative inspection to the search
warrant requirement rule.
_____________________________
§ 3. The Evidentiary Standards of Probable Cause and Reasonable Suspicion
[pp. 169-71]
Fn. 38. At the end of the first paragraph in this footnote, insert the following
new paragraph:
“‘Under our general Fourth Amendment approach’ we ‘examin[e] the totality of the
circumstances’ to determine whether a search is reasonable under the Fourth
Amendment.” Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 2197, 165
L.Ed.2d 250 (2006) (internal citation omitted).
Insert the following new paragraph at the end of this footnote:
Comparison between probable cause and reasonable suspicion standards: “A
number of our cases on probable cause have an implicit bearing on the reliable
knowledge element of reasonable suspicion, as we have attempted to flesh out the
knowledge component by looking to the degree to which the known facts imply
prohibited conduct, the specificity of the information received, and the reliability of
its source. At the end of the day, however, we have realized that these factors
cannot rigidly control, and we have come back to saying that the standards are
‘fluid concepts that take their substantive content from the particular contexts’ in
which they are being assessed.
22
Perhaps the best that can be said generally about the required knowledge
component of probable cause for a law enforcement officer’s evidence search is that
it raises a ‘fair probability’ or a ‘substantial chance’ of discovering evidence of
criminal activity. The lesser standard [of reasonable suspicion] for school searches
could as readily be described as a moderate chance of finding evidence of
wrongdoing.” Safford Unified School District v. Redding, 557 U.S. ___ 129 S.Ct.
2633, 2639, 174 L.Ed.2d 354 (2009) (internal citations omitted).
_____________________________
II. Substantive Law of the Fourth Amendment
Subpart B. The “Unreasonableness” Requirement
Chapter 12. Initial or Secondary Fourth Amendment Intrusion: Seizures of
Persons or Property
§ 1. Seizure of Persons
§ 2. Seizure of Property: Houses, Papers and Effects
_____________________________
§ 1. Seizure of Persons [pp. 179-221]
a. Two types of seizures of the person: temporary detentions and arrests
Fn. 16.
“It is nevertheless clear that a seizure that is lawful at its inception can violate the
Fourth Amendment if its manner of execution unreasonably infringes interests
protected by the Constitution. A seizure that is justified solely by the interest in
issuing a warning [traffic] ticket can become unlawful if it is prolonged beyond the
time reasonably required to complete that mission.” Illinois v. Caballes, 543 U.S.
405, 125 S.Ct. 834, 837, 160 L.Ed.2d 842 (2005) (internal citation omitted).
_____________________________
23
c. Probable cause justifies custodial arrest for any offense: no limitation for
minor offenses
Add new material to the title to this subsection so that it reads as follows:
c. Probable cause justifies custodial arrest for any offense: no limitation for
minor offenses or where arrest is unlawful under state law
p. 185. Add an additional paragraph to the end of this subsection:
Moreover, an arrest by a state officer based on probable cause for a minor
offense is reasonable under the Fourth Amendment, even though the arrest is
otherwise unlawful under state law — as where the state requires a summons,
rather than a custodial arrest, for such a minor offense. This is so because the
reasonableness of an arrest must be based on Fourth Amendment standards
and cannot be rendered unreasonable because state law requires such a result.
Fn. 30.
Fn. 30.
Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 170 L.Ed. 2d 559 (2008) (arrest
by city police officer for misdemeanor of driving with a suspended license based on
probable cause held reasonable under the Fourth Amendment — although the arrest
was unlawful under state law, as a summons was required for such an offense rather
than a custodial arrest) (“We conclude that warrantless arrests for crimes committed
in the presence of an arresting officer are reasonable under the Constitution, and
that while States are free to regulate such arrests however they desire, state
restrictions do not alter Fourth Amendment restrictions.” 128 S.Ct. at 1607).
Accordingly, an arrest not based on probable cause is unreasonable under the
Fourth Amendment — although the arrest may be lawful under state law, as where
state standards on probable cause are more lenient on the police than federal
standards. See Ker v. California, 374 U.S. 23, 34, 83 S.Ct. 1623, 10 L.Ed.2d 726
(1963) (“The States are not thereby precluded from developing workable rules
governing arrests, searches and seizures to meet ‘the practical demands of effective
criminal investigation and law enforcement,’ provided those rules do not violate the
constitutional proscription of unreasonable searches and seizures and the
concomitant command that evidence so seized is inadmissible against one who has
standing to complain.”).
24
k. Temporary detention during a search warrant execution
Fn. 95.
Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 1470, 161 L.Ed. 2d 299 (2005)
(search warrant authorized the seizure of deadly weapons [presumably contraband];
occupant was asleep in her bed when the search began) (“Mena’s [the occupant’s]
detention was, under Summers, plainly permissible.”).
p. 204. At the end of the first paragraph in the text, add the following:
Inherent in the authorization to temporarily detain the occupant of premises while a
search warrant is being executed is the authority to use reasonable force to
effectuate the detention. Fn. 97a. The use of handcuffs, however, to detain the
occupant is a separate Fourth Amendment intrusion aside from the detention --- and
therefore requires a separate justification, as where the safety of the officers and
occupants require it. Fn. 97b.
Indeed, when executing a search warrant, the officers may take any reasonable
action that is necessary to secure the premises and to ensure their own safety and
the efficacy of the search. Fn. 97c. This authority authorizes the officers to order
naked residents found in bed to stand for a brief time while officers secure the
premises — although for no longer than is necessary to accomplish this purpose.
Fn. 97d. Accordingly, unreasonable actions in executing a search warrant are
prohibited — such as the use of excessive force or restraints that cause unnecessary
pain or ones that are imposed for a prolonged and unnecessary period of time. Fn.
97e.
Moreover, the officers are authorized to question the occupant during the detention
concerning matters that have nothing to do with the search. This is so because
police questioning in itself does not constitute a Fourth Amendment seizure of the
individual and therefore does not require a showing of reasonable suspicion. Fn.
97f. But presumably, where the questioning exceeds the time reasonably necessary
to conduct the search, the basis for the temporary detention disappears, the
detention becomes illegal, and any questioning during this detention would be
tainted thereby. Fn. 97g.
_____________________________
25
Fn. 97a.
“Inherent in Summers’ authorization to detain an occupant of the place to be
searched is the authority to use reasonable force to effectuate the detention.”
Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 1470, 161 L.Ed. 2d 299 (2005).
Fn. 97b.
“The imposition of correctly applied handcuffs on Mena [the occupant], who was
already lawfully detained during a search of the house, was undoubtedly a separate
intrusion in addition to the detention in the converted garage. * * But this was no
ordinary search. The governmental interests in not only detaining, but using
handcuffs, are at their maximum when, as here, a warrant authorizes a search for
weapons and a wanted gang member resides on the premises. In such inherently
dangerous situations, the use of handcuffs minimizes the risk to both officers and
occupants.” Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 1470-71, 161 L.Ed. 2d
299 (2005) (handcuffing of occupant upheld during search of gang house; one of
the gang members resided on the premises; the warrant authorized the seizure of
deadly weapons; three other individuals on the premises were also detained and
handcuffed).
Fn. 97c.
“In executing a search warrant, officers may take reasonable action to secure the
premises and to ensure their own safety and the efficacy of the search.” Los
Angeles County v. Rettele, 550 U.S. 609, 127 S.Ct. 1989, 1992, 167 L.Ed.2d 974
(2007).
Fn. 97d.
Los Angeles County v. Rettele, supra (a male and female resident of house found in
bed naked forced to stand naked for 1-2 minutes while officers secured premises;
held reasonable action, even though house had subsequently been sold to innocent
party and nothing incriminating was found).
26
Fn. 97e.
“Unreasonable actions (in executing a search warrant) include the use of excessive
force or restraints that cause unnecessary pain or are imposed for a prolonged or
unnecessary period of time. * * *
This is not to say, of course, that the deputies were free to force Rettele and Sandler
(the residents) to remain motionless and standing for any longer than necessary. We
have recognized that ‘special circumstances’ or possibly a prolonged detention
might render a search unreasonable.” Los Angeles County v. Rettele, 127 S.Ct. At
1993.
Fn. 97f.
Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 1471-72, 161 L.Ed. 2d 299 (2005)
(questioning of occupant’s immigration status upheld during otherwise reasonable
search of gang house for deadly weapons and evidence of gang membership).
Fn. 97g.
See United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)
(suitcase held longer than reasonably necessary to conduct a narcotics dog sniff of
the suitcase tainted the dog alert on the suitcase and invalidated the search warrant
for the suitcase based on the alert); Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834,
837, 160 L.Ed.2d 842 (2005) (“It is nevertheless clear that a seizure that is lawful at
its inception can violate the Fourth Amendment if its manner of execution
unreasonably infringes interests protected by the Constitution. A seizure that is
justified solely by the interest in issuing a warning [traffic] ticket can become
unlawful if it is prolonged beyond the time reasonably required to complete that
mission.”) (internal citation omitted).
_____________________________
m. Excessive force in effecting an arrest or temporary detention
p. 210. Strike the second complete paragraph in this subsection and add the
following:
27
Moreover, when deadly force is used to effect an arrest of a suspect, such force
violates the suspect’s Fourth Amendment rights only if unreasonable under the
circumstances. Fn. 125a. Accordingly, it was held unreasonable for police to shoot
and kill an unarmed suspected felon who was fleeing from the police on foot but
otherwise posed no threat to anyone. Fn. 125b. On the other hand, it was held
reasonable for police to ram a fleeing motorist with the pursuing police car, causing
the car to crash, rendering the motorist a quadriplegic, in order to stop the
motorist’s dangerous high-speed police chase from continuing to endanger the lives
of innocent bystanders. Fn. 125c.
_____________________________
Fn. 125a.
Scott v. Harris, 550 U.S. 372 127 S.Ct. 1769, 1777, 167 L.Ed.2d 686 (2007),
interpreting Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 443
(1985). “It is also conceded, by both sides, that a claim of ‘excessive force in the
course of making [a] . . . seizure of the person . . . is properly analyzed under the
Fourth Amendment’s ‘objective reasonableness’ standard.’” [citation omitted]. 127
S.Ct. at 1776. “In determining the reasonableness of the manner in which a seizure
is effected, ‘[w]e must balance the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion.’” [citation omitted]. 127
S.Ct. at 1778.
Fn. 125 b.
Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 443, 455-56 (1985),
as interpreted in Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1777, 167 L.Ed.2d
686 (2007).
Fn. 125c.
Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1777, 167 L.Ed.2d 686 (2007).
“Instead we lay down a more sensible rule: a police officer’s attempt to terminate a
dangerous high-speed car chase that threatens the lives of innocent bystanders does
not violate the Fourth Amendment, even when it places the fleeing motorist at risk
of serious injury or death.” 127 S.Ct. at 1779. Justice Ginsburg, in her concurring
28
opinion in Scott, states some of the relevant circumstances for determining whether
deadly force for effecting an arrest in this case was reasonable: “Were the
lives and well-being of others (motorists, pedestrians, police officers) at risk? Was
there a safer way, given the time, place and circumstances, to stop the fleeing
vehicle.” 127 S.Ct. at 1779.
_____________________________
§ 2. Seizure of Property: Houses, Papers and Effects
c. The “plain view” doctrine
(1) Basic requirements
p. 219. Add the following footnote at the end of the second complete paragraph
under this sub-subsection:
Fn. 152 a.
“[W]e have held that law enforcement officers may seize evidence in plain view,
provided that they have not violated the Fourth Amendment in arriving at the spot
from which the observation of the evidence is made. See Horton v. California 496
U.S. 128, 136-140, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). As we put it in
Horton, ‘[i]t is ... an essential predicate to any valid warrantless seizure of
incriminating evidence that the officer did not violate the Fourth Amendment in
arriving at the place from which the evidence could be plainly seen.’ Id. At 136,
110 S.Ct. 2301. So long as this prerequisite is satisfied, however, it does not matter
that the officer who makes the observation may have gone to the spot from which
the evidence was seen with the hope of being able to view and seize the evidence.
[citation omitted]. Instead, the Fourth Amendment requires only that the steps
preceding the seizure be lawful. [citation omitted.].” Kentucky v. King, 563 U.S.
___, 131 S.Ct. 1849, 1858, 179 L.Ed.2d 865 (2011).
29
II. Substantive Law of the Fourth Amendment
Subpart B. The “Unreasonableness” Requirement
Chapter 13. Initial Fourth Amendment Intrusion: Searches of Private
Premises Conducted with a Warrant
§ 1. Governed by the Warrants Clause of the Fourth Amendment
§ 2. Probable Cause Requirement
§ 3. Particularity Requirements: Place to be Searched and Things to be Seized
§ 4. Execution Requirements
§ 5. Neutral and Detached Magistrate
_____________________________
§ 2. Probable Cause Requirement [pp. 224-36]
b. Interpretation of search warrant affidavits: judicial review of magistrate’s
probable cause determination
p. 226. Add the following sentence to the first incomplete paragraph on this
page:
Moreover, the fact that the search pursuant to a warrant uncovers no evidence of
wrongdoing does not show that there was no probable cause for the warrant — as
the test of probable cause is based entirely on pre-search evidence presented to the
magistrate, not on what the search uncovers. Fn. 12a.
Fn. 12a.
“The Fourth Amendment allows warrants to issue on probable cause, a standard
well short of absolute certainty. Valid warrants will issue to search the innocent,
and people like Rettele and Sadler unfortunately bear the cost.” Los Angeles
County v. Rettele, 550 U.S. 609, 127 S.Ct. 1989, 1993, 167 L.Ed.2d 974 (2007)
(probable cause to search house that had been sold to innocent party). True, but we
should always remember that “nothing is easier than to bear other people’s
calamities with fortitude.” W. Somerset Maugham, The Razor’s Edge 144 (1944)
(Giant Cardinal pocketbook ed. 1963).
30
p. 236. Add a new subsection:
i. Anticipatory search warrants
An anticipatory search warrant is a warrant based on an affidavit showing probable
cause that at some future time (but not presently) certain evidence will be located at
a specified place --- usually subjecting its execution to a future “triggering
condition.” Fn. 35a. Such a warrant is constitutional under the Fourth Amendment,
providing two conditions are met: (a) there must be probable cause to believe that
the “triggering condition” will take place, and (b) there must be probable cause to
believe that when the triggering condition occurs, there is a fair probability that
certain evidence of crime will be found in a particular place. Fn. 35b. The
triggering condition, however, need not be included in the warrant Fn. 35c. --although the failure to do so can create certain dangers. For example, an officer who
executes the warrant, but did not obtain the warrant, may not be aware of the
triggering condition, and may execute the warrant before the triggering condition
occurs --- thereby rendering the search unreasonable. Fn. 35d.
_____________________________
Fn. 35a.
United States v. Grubbs, 547 U.S. 90, 126 S.Ct. 1494, 1498, 164 L.Ed.2d 195
(2006). See 2 Wayne LaFave, Search and Seizure § 3.7(c) (4th ed. 2004) plus the
current Supp. for an analysis of the anticipatory search warrant cases.
Fn. 35b.
“In other words, for a conditioned anticipatory warrant to comply with the Fourth
Amendment’s requirement of probable cause, two prerequisites of probability must
be satisfied. It must be true not only that if the triggering condition occurs ‘there is a
fair probability that contraband or evidence of crime will be found in a particular
place’ [citation omitted], but also that there is probable cause to believe the
triggering condition will occur. The supporting affidavit must provide the
magistrate with sufficient information to evaluate both aspects of the probable cause
determination.” United States v. Grubbs, 547 U.S. 90 126 S.Ct. 1494, 1500, 164
L.Ed.2d 195 (2006) (anticipatory search warrant upheld based on triggering
condition of future controlled delivery of child pornography videotape to
31
petitioner’s home).
Fn. 35c.
United States v. Grubbs, 547 U.S. 90, 126 S.Ct. 1494, 1500-01, 164 L.Ed.2d 195
(2006)
Fn. 35d. United States v. Grubbs, 547 U.S. 90, 126 S.Ct. 1494,1502, 164 L.Ed.2d
195 (2006) (Souter, J. concurring).
_____________________________
§ 4. Execution Requirements [pp. 240-48]
a. Forcible entry into a dwelling: knock and announce rule
p. 240. Add the following to the end of the second paragraph on this page:
It is important to point out, however, that the Fourth Amendment exclusionary rule
does not apply to a violation of the knock-and-announce doctrine; a civil suit,
however, may be brought to redress such a violation. Fn. 50a.
_____________________________
Fn. 50a.
Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006). The
Court reached this result because (1) any evidence seized on the premises after such
a violation is so attenuated as to dissipate the taint of the original violation, and
therefore is not the “fruit of the poisonous tree,” and (2) the limited deterrence
benefits of applying the exclusionary rule in this context is outweighed by the
substantial social costs sustained in such an application, and therefore an exception
to the exclusionary rule is shown. 126 S.Ct. at 2163-65, 2165-68. See Justice
Kennedy’s concurring opinion in Hudson emphasizing the importance of
vindicating this important doctrine: “It bears repeating that it is a serious matter if
law enforcement officers violate the sanctity of the home by ignoring the requisites
of lawful entry. Security [in the home] must not be subject to erosion by
indifference or contempt.” 126 S.Ct. at 2170 (Kennedy, J. concurring).
32
See also Ch. 17, Sec. 3a & Sec. 5d of this work [incl .this supplement] concerning
the Fourth Amendment exclusionary rule --- as well as Ch. 17, Sec. 6g of this work
for a discussion of civil suits that may be brought to enforce Fourth Amendment
rights.
_____________________________
b. Detention and search of persons on the premises
Fn. 67.
Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 1470, 161 L.Ed. 2d 299 (2005)
(search warrant authorized the seizure of deadly weapons [presumably contraband];
occupant was asleep in her bed when the search began) (“Mena’s [the occupant’s]
detention was, under Summers, plainly permissible.”).
p. 245. Add the following three paragraphs after the first complete paragraph
in the text:
Inherent in the authorization to temporarily detain the occupant of premises while a
search warrant is being executed is the authority to use reasonable force to
effectuate the detention. Fn. 69a. The use of handcuffs, however, to detain the
occupant is a separate Fourth Amendment intrusion aside from the detention --- and
therefore requires a separate justification, as where the safety of the officers and
occupants require it. Fn. 69b.
Indeed, when executing a search warrant, the officers may take any reasonable
action that is necessary to secure the premises and to ensure their own safety and
the efficacy of the search. Fn. 69c. This authority authorizes the officers to order
naked residents found in bed to stand for a brief time while officers secure the
premises — although for no longer than is necessary to accomplish this purpose.
Fn. 69d. Accordingly, unreasonable actions in executing a search warrant are
prohibited — such as the use of excessive force or restraints that cause unnecessary
pain or ones that are imposed for a prolonged and unnecessary period of time. Fn.
69e.
Moreover, the officers are authorized to question the occupant concerning matters
that have nothing to do with the search. This is so because police questioning in
33
itself does not constitute a Fourth Amendment seizure of the individual and
therefore does not require a showing of reasonable suspicion. Fn. 69f. But
presumably, where the questioning exceeds the time reasonably necessary to
conduct the search, the basis for the temporary detention disappears, the detention
becomes illegal, and any questioning during this detention would be tainted thereby.
Fn. 69g.
_____________________________
Fn. 69a.
“Inherent in Summers’ authorization to detain an occupant of the place to be
searched is the authority to use reasonable force to effectuate the detention.”
Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 1470, 161 L.Ed. 2d 299 (2005).
Fn. 69b.
“The imposition of correctly applied handcuffs on Mena [the occupant], who was
already being lawfully detained during a search of the house, was undoubtedly a
separate intrusion in addition to the detention in the converted garage. * * But this
was no ordinary search. The governmental interests in not only detaining, but using
handcuffs, are at their maximum when, as here, a warrant authorizes a search for
weapons and a wanted gang member resides on the premises. In such inherently
dangerous situations, the use of handcuffs minimizes the risk to both officers and
occupants.” Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 1470-71, 161 L.Ed.2d
299 (2005) (handcuffing of occupant upheld during search of gang house; one of
the gang members resided on the premises; the warrant authorized the seizure of
deadly weapons; three other individuals on the premises were also detained and
handcuffed).
Fn. 69c.
“In executing a search warrant, officers may take reasonable action to secure the
premises and to ensure their own safety and the efficacy of the search.” Los
Angeles County v. Rettele, 550 U.S. 609, 127 S.Ct. 1989, 1992, 167 L.Ed.2d 974
(2007).
34
Fn. 69d.
Los Angeles County v. Rettele, supra (a male and female resident of house found in
bed naked forced to stand naked for 1-2 minutes while officers secured premises;
held reasonable action, even though house had subsequently been sold to innocent
third party and nothing incriminating was found).
Fn. 69e.
“Unreasonable actions (in executing a search warrant) include the use of excessive
force or restraints that cause unnecessary pain or are imposed for a prolonged or
unnecessary period of time. * * *
This is not to say, of course, that the deputies were free to force Rettele and
Sandler (the residents) to remain motionless and standing for any longer than
necessary. We have recognized that ‘special circumstances’ or possibly a prolonged
detention might render a search unreasonable.” Los Angeles County v. Rettele, 127
S.Ct. at 1993.
Fn. 69f.
Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 1471-72, 161 L.Ed. 2d 299 (2005)
(questioning of occupant’s immigration status during otherwise reasonable search
of gang house for deadly weapons and evidence of gang membership upheld).
Fn. 69g.
See United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)
(suitcase held longer than reasonably necessary to conduct a narcotics dog sniff of a
suitcase tainted the dog alert on the suitcase and invalidated the search warrant for
the suitcase based on the alert); Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834,
837, 160 L.Ed.2d 842 (2005) (“It is nevertheless clear that a seizure that is lawful at
its inception can violate the Fourth Amendment if its manner of execution
unreasonably infringes interests protected by the Constitution. A seizure that is
justified solely by the interest in issuing a warning [traffic] ticket can become
unlawful if it is prolonged beyond the time reasonably required to complete that
mission).” (internal citation omitted).
_____________________________
35
II. Substantive Law of the Fourth Amendment
Subpart B. The “Unreasonableness” Requirement
Chapter 14. Initial or Secondary Fourth Amendment Intrusion: Warrantless
Searches and Criminal Exceptions to the Search Warrant Requirement
Rule
§ 1. An Overview of Exceptions to the Search Warrant Requirement Rule
§ 2. Search Incident to a Lawful Arrest
§ 3. “Stop and Frisk” Search
§ 4. Moving Vehicle Exception: Carroll Doctrine
§ 5. Consent Search
§ 6. Exigent Circumstances Search
_____________________________
§ 1. An Overview of Exceptions to the Search Warrant Requirement Rule [pp.
249-52]
p. 250. At the end of the last complete sentence on this page, insert the following:
At times, however, the Court reaches the same result by employing the standard
balancing process for determining Fourth Amendment reasonableness without
requiring a showing of special governmental needs. Fn. 4a. In this entire balancing
process, the Court creates, at times, special needs exceptions to the search warrant
requirement rule, and at other times straight civil exceptions sans any showing of
special governmental needs.
Fn. 4a. Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 2200 n. 3, 165 L.Ed.2d
250 (2006) (general balancing definition of reasonableness used to hold that a
warrantless, suspicionless search of a parolee did not violate the parolee’s Fourth
Amendment rights; special governmental needs showing not required.).
_____________________________
§ 2. Search Incident to a Lawful Arrest [pp. 252-259]
a. The wingspan rule
36
Fn. 11, p. 253. Add the following to the end of this footnote:
“Among the exceptions to the warrant requirement is a search incident to a lawful
arrest. [citation omitted]. The exception derives from interests of officer safety and
evidence preservation that are typically implicated in arrest situations. [citation
omitted].
In Chimel, we held that a search incident to arrest may only include the arrestee’s
person and the area ‘within his immediate control — construing that phrase to mean
the area from within which he might gain possession of a weapon of a weapon or
destructible evidence. That limitation, which continues to define the boundaries of the
exception, ensures that the scope of a search incident to arrest is commensurate with
its purposes of protecting officers and safeguarding any evidence of the offense of
arrest that an arrestee might conceal or destroy.” Arizona v. Gant, 556 U.S. ___, 129
S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009).
p. 252. At the end of the first sentence of the first complete paragraph on this
page, insert the following:
The scope of police authority to search incident to a lawful arrest undoubtedly extends
to containers possessed by the arrestee at the time of arrest. Fn. 9a.
Fn. 9a.
California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed 2d 619, 631 (1991)
(“And the police often will be able to search containers without a warrant . . . as a
search incident to a lawful arrest. . . . Under Belton, the same probable cause to
believe that a container holds drugs will allow the police to arrest the person
transporting the container and search it.”) .
_____________________________
c. Search of person: purpose of the search irrelevant.
Add the following to the end of this subsection:
Of course, most of the time law enforcement officers search a lawfully arrested
suspect to safeguard evidence and to ensure their own safety; such a search is a
reasonable search as it is incident to a lawful arrest. Fn. 13a.
37
Fn. 13a.
“When officers have probable cause to believe that a person has committed a crime in
their presence, the Fourth Amendment permits them to search the suspect in order to
safeguard evidence and ensure their own safety.” Virginia v. Moore, 553 U.S. 164,
128 S.Ct. 1598, 1608, 170 L.Ed.2d 559 (2008).
_____________________________
f. Arrest of motor vehicle driver or passenger
DELETE THIS SUBSECTION ENTIRELY AND SUBSTITUTE THE
FOLLOWING — AS THE LAW ON THIS SUBJECT HAS SUBSTANTIALLY
CHANGED.
Notwithstanding the Chimel wingspan rule, the Court has adopted a limited exception
thereto — confined to a search incident to the arrest of a motor vehicle driver or
passenger. Accordingly, when a law enforcement officer makes an arrest of a motor
vehicle occupant, the officer is authorized to conduct a search of the vehicle’s
passenger compartment and any container therein [but not the trunk] only where:
(1) the arrestee is unsecured and within reaching distance of
the passenger compartment at the time of the arrest, or
(2) it is reasonable to believe that evidence relevant to the
crime of arrest might be found in the passenger
compartment. Fn. 16.
The Court has noted that the first situation will rarely arise because law enforcement
officers are almost always able to promptly effect an arrest without the arrestee having
access to the subject vehicle. But if unable to do so safely during which the potential
arrestee is unsecured and has ready access to the vehicle, the officer is allowed to
search the passenger compartment in the course of the struggle in order to protect
himself from weapons therein and for evidence preservation. Fn. 17. This search will
necessarily go beyond the physical wingspan of the arrestee.
38
The Court has further noted that the second situation arises only where the arrest is for
an offense that one can reasonably expect to find evidence thereof in the vehicle. This
necessarily excludes minor traffic violations — like speeding or a defective tail light
— which rarely, if ever, involve physical evidence. But the exception can apply to
arrests for certain felonies or serious misdemeanors — both of which may encompass
physical evidence one might expect to find in the vehicle. Fn. 18. This search can go
beyond the physical wingspan of the arrestee and extend to the entire passenger
compartment of the vehicle, including containers therein. Indeed, the arrestee may be
safely secured in a patrol car at the time of the search.
This exception represents a limited retreat from earlier more expansive U.S. Supreme
Court rulings that allowed as a bright line rule an automatic police search of a motor
vehicle’s passenger compartment following an arrest of the driver or passenger of the
vehicle. Fn. 19. As previously noted, such a search is now allowed only in limited
situations that are tethered more to the original justification for searches incident to
arrest.
If this exception is inapplicable, a search of the arrestee’s vehicle is unreasonable
under the Fourth Amendment — unless the police obtain a search warrant for the
vehicle or show that another exception to the search warrant requirement applies. Fn.
20.
_____________________________
Fn. 16.
“Accordingly, we . . . hold that the Chimel rationale authorizes police to search a
vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and
within the reaching distance of the passenger compartment.
Although it does not follow from Chimel, we also conclude that circumstances unique
to the vehicle context justifies a search incident to a lawful arrest when it is
‘reasonable to believe evidence relevant to the crime of arrest might be found in the
vehicle.’ * * *
Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is
within reaching distance of the passenger compartment at the time of the search or it is
reasonable to believe the vehicle contains evidence of the offense of arrest.” Arizona
39
v. Gant, 556 U.S. ___, 129 S.Ct. 1710, 1719, 1723, 173 L.Ed.2d 485 (2009) (search of
motor vehicle held not incident to traffic arrest of driver for (a) driving with a
suspended license; driver was handcuffed and placed in the back of police patrol car at
time of arrest).
“As result, the Court [in Gant] adopted a new, two-part rule under which an
automobile search incident to a recent occupant’s arrest is constitutional (1) if the
arrestee is within reaching distance of the vehicle during the search, or (2) if the police
have reason to believe that the vehicle contains evidence relevant to the crime of
arrest.” Davis v. United States, 564 U.S. ___, 131 S.Ct. 2419, 2425, 180 L.Ed.2d 285
(2011). (internal citation marks omitted).
The current exception also leaves undisturbed the Court’s prior rulings that under this
exception (a) containers in the vehicle’s passenger compartment may also be
searched, but (b) the vehicle’s trunk may not be searched. New York v. Belton, 453
U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, 775 (1981). Indeed, the Gant Court
expressly stated that under its second holding , as stated above , “the offense of arrest
will [often] supply a basis for searching the passenger compartment of an arrestee’s
vehicle and any containers therein.” Arizona v. Gant, 556 U.S. ___, 129 S.Ct. 1710,
1719, 173 L.Ed.2d 485 (2009) (emphasis and brackets added). Moreover, the entire
Gant decision was centered on searches of the passenger compartment of a motor
vehicle, not the vehicle’s trunk — which clearly cannot be searched under the searchincident-to-arrest exception.
Fn. 17.
“Because officers have many means of ensuring the safe arrest of vehicle occupants, it
will be the rare case in which an officer is unable to fully effectuate an arrest so that a
real possibility of access to the arrestee’s vehicle remains. [citation omitted]. But in
such a case a search incident to arrest is reasonable under the Fourth Amendment.”
Arizona v. Gant, 556 U.S. ___, 129 S.Ct. 1710 n. 4, 173 L.Ed.2d 485 (2009).
Moreover, Justice Alito agrees in his dissenting opinion (joined by C.J. Roberts, and
Kennedy and Breyer, JJ.): “First, in the great majority of cases, an officer making an
arrest is able to handcuff the arrestee and remove him to a secure place before
conducting a search incident to the arrest.” 129 S.Ct. at 1730.
40
Fn. 18.
“In many cases, as when a recent occupant is arrested for a traffic violation, there will
be no reasonable basis to believe the vehicle contains relevant evidence. [citations
omitted]. But in others, including Belton and Thornton, the offense of arrest will
supply a basis for searching the passenger compartment of an arrestee’s vehicle and
any containers therein.” Arizona v. Gant, 556 U.S. ___, 129 S.Ct. 1710, 1719, 173
L.Ed.2d 485 (2009).
Fn. 19.
New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, 775 (1981)
(“Accordingly, we hold that when a policeman has made a lawful custodial arrest of
the occupant of an automobile, he may, as a contemporaneous incident of that arrest,
search the passenger compartment of that automobile.”); see Thornton v. United
States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004) (following Belton).
As previously noted, the Court has since backed off Belton’s broad rule:
“Accordingly, we hold that Belton does not authorize a
vehicle search after the arrestee has been secured and cannot
access the interior of the vehicle.”
Except for one situation:
“[W]e also conclude that circumstances unique to the
automobile context justify a search incident to arrest when it
is reasonable to believe that evidence of the offense of arrest
might be found in the vehicle.”
Arizona v. Gant, 556 U.S. ___, 129 S.Ct. 1710, 1714, 173 L.Ed.2d 485 (2009) .
The latter portion of the above holding was apparently tacked on to get Justice
Scalia’s vote and secure a majority of Justices for the Court’s opinion. Indeed, this
point had previously been suggested by Justice Scalia’s concurring opinion in
Thornton, 124 S.Ct. at 2127, which was expressly referenced and followed by the
Gant Court in its opinion. Id.
41
Fn. 20.
“ Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee
is within reaching distance of the passenger compartment at the time of the search or it
is reasonable to believe the vehicle contains evidence of the offense of arrest. When
these justifications are absent, a search of an arrestee’s vehicle will be unreasonable
unless police obtain a warrant or show that another exception to the warrant
requirement applies.” Arizona v. Gant, 556 U.S. ___, 129 S.Ct. 1710, 1723-24, 173
L.Ed.2d 485 (2009).
_____________________________
§ 3. “Stop and Frisk” Search
a. General Rule
p. 259, Fn. 38.
“In a pathmarking decision, Terry v. Ohio [numerical citation omitted], the Court
considered whether an investigatory stop (temporary detention) and frisk (patdown for
weapons) may be conducted without violating the Fourth Amendment’s ban on
unreasonable searches and seizures. The Court upheld ‘stop and frisk’ as
constitutionally permissible if two conditions are met. First, the investigatory stop
must be lawful. That requirement is met in an on-the-street encounter, Terry
determined, when the police officer reasonably suspects that the person apprehended
is committing or has committed a criminal offense. Second, to proceed from a stop to
a frisk, the police officer must reasonably suspect that the person stopped is armed and
dangerous.” Arizona v. Johnson, 555 U.S. ___, 129 S.Ct. 781, 784 172 L.Ed.2d 694
(2009).
_____________________________
p. 261. Add the following sentence to the end of the first incomplete paragraph at
the top of the page:
During a lawful traffic stop, however, the police may question the driver or any
passenger concerning any criminal offense [even if unrelated to the stop] and need not
have reasonable suspicion that such person is involved in said criminal offense — so
long as the questioning does not measurably extend the duration of the traffic stop.
42
Fn. 45a.
Fn. 45a.
“A lawful roadside stop begins when a vehicle is pulled over for investigation of a
traffic violation. The temporary seizure of the driver and passengers ordinarily
continues, and remains reasonable, for the duration of the stop. Normally, the stop
ends when the police have no further need to control the scene, and inform the driver
and passengers they are free to leave. [citation omitted]. An officer’s inquiries into
matters unrelated to the justification for the traffic stop, this Court has made clear,
does not convert the encounter into something other than a lawful seizure, so long as
those inquiries do not measurably extend the duration of the stop.” Arizona v.
Johnson, 555 U.S. ___, 129 S.Ct. 781, 788, 172 L.Ed.2d 694 (2009) (police
questioning of passenger during a lawful traffic stop concerning criminal gang
activity, where there was no reasonable suspicion of same, did not render the
passenger’s detention unlawful, and thus invalidate the later patdown search of the
passenger; on remand, however, state appellate court could determine whether the
patdown was nonetheless unlawful if there was no reasonable suspicion that the
passenger was armed and dangerous).
Fn. 45.
“Accordingly, we hold that, in a traffic-stop setting, the first Terry condition — a
lawful investigatory stop — is met whenever it is lawful for police to detain an
automobile and its occupants pending inquiry into a vehicular violation. The police
need not have, in addition, cause to believe that any occupant of the vehicle is
involved in criminal activity. To justify a patdown of the driver or a passenger,
however, just as in the case of a pedestrian reasonably suspected of criminal activity,
the police must harbor reasonable suspicion that the person suspected to the frisk is
armed and dangerous.” Arizona v. Johnson, 555 U.S. ___, 129 S.Ct. 781, 784, 172
L.Ed.2d 694 (2009).
_____________________________
43
§ 5. Consent Search [pp. 269-74]
Fn. 84.
“Similarly, officers may seek consent-based encounters if they are lawfully present
in the place where the consensual encounter occurs. (citation omitted). If consent is
freely given, it makes no difference that an officer may have approached the person
with the hope or expectation of obtaining consent. (citation omitted).” (italics added).
Kentucky v. King, 563U.S. ___, 131 S.Ct. 1849, 1858, 179 L.Ed.2d 865 (2011).
Fn. 92.
“To the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a
person’s house as unreasonable per se [citations omitted], one ‘jealously and carefully
drawn’ exception [citation omitted] recognizes the validity of searches with the
voluntary consent of an individual possessing authority, [citation omitted]. That
person might be the householder against whom evidence is sought [citation omitted],
or a fellow occupant who shares common authority over property, when the suspect is
absent [citation omitted], and the exception for consent extends even to entries and
searches with the permission of a co-occupant whom the police reasonably, but
erroneously, believe to possess shared authority as an occupant. [citation omitted].”
Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 1520, 164 L.Ed.2d 208 (2006).
p. 273. Insert a new footnote at the end of the first sentence, second paragraph,
on this page:
Fn. 92a.
“A person on the scene who identifies himself, say, as a landlord or hotel manager
calls up no customary understanding of authority to admit guests without the consent
of the current occupant. [citations omitted]. A tenant in the ordinary course does not
take rented premises subject to any formal or informal agreement that the landlord
may let visitors into the dwelling, [citation omitted], and a hotel guest customarily has
no reason to expect the manager to allow anyone but his own employees into the
room. [citations omitted]. In these circumstances, neither state-law property rights, nor
common contractual arrangements, nor any other source points to a common
understanding of authority to admit third parties generally without the consent of a
44
person occupying the premises.” Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515,
1522, 164 L.Ed.2d 208 (2006).
p. 273. At the end of the second paragraph on this page, add the following new
paragraph and footnotes:
On the other hand, a warrantless search by law enforcement officers of private
premises shared by two occupants --- where one occupant consents to the search, but a
physically present co-occupant expressly objects to the search --- cannot be justified
under the consent exception to the search warrant requirement rule and, therefore,
without more, is unreasonable under the Fourth Amendment as to the non-consenting
co-occupant. Fn. 96a. Moreover, a young child living in a home with his parents may
have the power to admit police to the common areas of the home, but would have no
authority to consent to a police search of his parents bedroom. Fn. 96b.
_____________________________
Fn. 96a.
“The Fourth Amendment recognizes a valid warrantless entry and search of premises
when police obtain the voluntary consent of an occupant who shares, or is reasonably
believed to share, authority over the area in common with a co-occupant who later
objects to the use of the evidence so obtained. [citations omitted]. The question here is
whether such an evidentiary seizure is likewise lawful with the permission of one
occupant when the other, who later seeks to suppress the evidence, is present at the
scene and expressly refuses to consent. We hold that, in the circumstances here at
issue, a physically present co-occupant’s stated refusal to permit entry prevails,
rendering the warrantless search unreasonable and invalid as to him.” * * * “We
therefore hold that a warrantless search of a shared dwelling for evidence over the
express refusal of consent by a physically present resident cannot be justified as
reasonable as to him on the basis of consent given by the other resident.” Georgia v.
Randolph, 547 U.S. 103, 126 S.Ct. 1515, 1518-19, 1526, 164 L.Ed.2d 208 (2006)
(search of marital home with consent of wife, but over the express objection of
husband held a violation of husband’s Fourth Amendment rights).
The Court notes, however, that a different result would obtain if the exigent
circumstances exception to the search warrant requirement rule is shown. See Sec. 6,
infra, of this chapter. For example, where the circumstances show that it is reasonably
45
necessary to protect a resident from domestic violence, “it would be silly to suggest
that the police would commit a tort by entering, say, to give a complaining tenant the
opportunity to collect belongings and get out safely, or to determine whether violence
(or threat of violence) has just occurred or is about to (or is soon to), however much a
spouse or other co-tenant objected.” 126 S.Ct. at 1525. “Sometimes, of course, the
very exchange of information like this in front of the objecting inhabitant may render
consent irrelevant by creating an exigency that justifies immediate action on the
police’s part: if the objecting tenant cannot be incapacitated from destroying easily
disposable evidence during the time required to get a warrant. [citations omitted], a
fairly perceived need to act on the spot to preserve evidence may justify entry and
search under the exigent circumstances exception to the warrant requirement.” 126
S.Ct. at 1524, n.6. But the state does not argue that the exigent circumstances
exception was applicable in this case. 126 S.Ct. at 1528.
The Court also notes that “[t]he co-tenant acting on his own initiative may be able to
deliver evidence to the police [citation omitted], and can tell the police what he
knows, for use before a magistrate in getting a warrant.” 126 S.Ct. 1524.
Fn. 96b.
“[A] child of eight might well be considered to have the power to consent to the police
crossing the threshold into that part of the house where any caller, such as a pollster or
salesman, might well be admitted, but no one would reasonably expect such a child to
be in a position to authorize anyone to rummage through his parents’ bedroom.”
Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 1522, 164 L.Ed.2d 208 (2006)
[internal quotation from the LaFave treatise omitted].
_____________________________
Section 6. Exigent Circumstances Search [pp. 274-80]
a. General Rule
Fn. 101. Place the following two cases at the beginning of this footnote:
“Accordingly, the warrant requirement is subject to certain reasonable exceptions.
One well-recognized exception applies ‘when the exigencies of the situation’ make
46
the needs of law enforcement so compelling that [a] warrantless search is objectively
reasonable under the Fourth Amendment.
This Court has identified several exigencies that may justify a warrantless search of a
home. Under the ‘emergency aid exception, for example, [1] ‘officers may enter a
home without a warrant to render emergency assistance to an injured occupant or to
protect an occupant from immediate injury.’ [2] Police may enter premises without a
warrant when they are in immediate pursuit of a fleeing subject. [3]And — what is
relevant here — the need ‘to prevent the immediate destruction of evidence’ has long
been recognized as a sufficient justification for a warrantless search. [internal citations
omitted; bracketed numbers added].” Kentucky v. King, 563 U.S. ___, 131 S.Ct.
1849, 1856, 179 L.Ed.2d 865 (2011).
“We have held, for example, that law enforcement officers may make a warrantless
entry onto private property to fight a fire and investigate its cause [citation omitted], to
prevent the imminent destruction of evidence [citation omitted], or to engage in ‘hot
pursuit’ of a fleeing suspect. [citation omitted]. * * * One exigency obviating the
requirement of a warrant is the need to assist persons who are seriously injured or
threatened with such injury . . . [citations omitted]. Accordingly, law enforcement
officers may enter a home without a warrant to render emergency assistance to an
injured occupant or to protect an occupant from imminent injury. [citations omitted].”
Brigham City v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 1947, 164 L.Ed.2d 650 (2006).
_____________________________
c. Life Threatening or Perilous Situations
p. 276. Add the following text and footnote after the first sentence in the first
complete paragraph on this page.
, even though the officers’ subjective intent in entering the premises may have been to
make an arrest of persons therein --- so long as the objective facts justified the entry to
protect life and limb. Fn. 107a.
Fn. 107a. “One exigency obviating the requirement of a warrant is the need to assist
persons who are seriously injured or threatened with such injury. . . . [citations
omitted]. Accordingly, law enforcement officers may enter a home without a warrant
to render emergency assistance to an injured occupant or to protect an occupant from
47
imminent injury. [citations omitted].” * * * “An action is ‘reasonable’ under the
Fourth Amendment, regardless of the individual officer’s state of mind ‘as long as the
circumstances viewed objectively justify [the] action.’ [citations omitted]. The
officer’s subjective motivation is irrelevant. [citations omitted]. It therefore does not
matter here --- even if their subjective motives could be so neatly unraveled --whether the officers entered the kitchen to arrest the respondents and gather evidence
against them or to assist the injured and prevent further violence.” Brigham City v.
Stuart, 547 U.S. 398, 126 S.Ct. 1943, 1947, 1948, 164 L.Ed.2d 650 (2006) (police
properly entered home without a warrant to break up a brawl they could see was
taking place therein; this result is not changed by the fact that the officers’ subjective
intent in entering the premises may have been to make an arrest and gather evidence
to support the arrest).
“Therefore although searches and seizures inside a home without a warrant are
presumptively unreasonable, that presumption can be overcome. For example, the
exigencies of the situation [may] make the needs of law enforcement so compelling
that the warrantless search is objectively reasonable.
Brigham City identified on such exigency: the need to assist persons who are seriously
injured or threatened with such injury. Thus, law enforcement officers may enter a
home without a warrant to render emergency assistance to protect an occupant from
imminent injury. This emergency aid exception does not depend on the officers’
subjective intent or the seriousness of any crime they are investigating when the
emergency arises. It requires only an objectively reasonable basis for believing that a
person within [the house] is in need of immediate aid.” Michigan v. Fisher, 558 U.S.
___, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (internal case quotations and citations
omitted) (Brigham decision followed on its facts) (police properly entered home
without a warrant where man whom police could see through a window was in a rage
throwing items around in the house with blood on his hand — so as to render aid to
the man or any person he might be hurling things at; three windows in house were
broken with glass still on ground outside; truck in driveway was smashed up with
blood on the hood and on clothes inside truck; blood was on one of the doors to the
house).
_____________________________
48
Fn. 110.
See also Michigan v. Clifford 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984)
(post-fire search of arson defendant’s home at 1:30 PM, 6 ½ hours after firemen had
extinguished the fire therein [including a search of the basement and later the rest of
the house], was held unreasonable because it was conducted without a warrant)
(plurality opinion; result concurred in by five Justices).
p. 278. Add the following sentence and footnote to the end of the first paragraph
on this page:
On the other hand, a warrant is unnecessary for such post-fire entries if the fire has so
gutted the building that no person could entertain a reasonable expectation of privacy
therein. Fn. 110a.
Fn. 110a.
“Some fires may be so devastating that no reasonable privacy interests remain in the
ash and ruins, regardless of the owner’s subjective expectations.” Michigan v.
Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477, 483 (1984) (plurality opinion).
_____________________________
pp. 278-279. Strike subsection d and insert the following:
d. Destruction or removal of evidence Fn.111.
Fn. 111.
For a discussion of related exceptions to the general rule requiring a warrant for the
seizure [as opposed to a search] of personal or real property [i.e. seizures pending
application for a search warrant, and seizures pending further investigation], see
Chapter 12, Section 2b(1)(2) of this work.
New Text and footnote:
Finally, the Court has recognized an exception to the search warrant requirement rule
where a non-consensual entry onto private premises is necessary to prevent the
49
immediate destruction of evidence of a crime — provided there is a reasonable basis
for believing that such evidence is in the process of being destroyed on the premises.
Moreover, this rule applies even where the police precipitate the destruction of such
evidence by knocking on the door to such premises and announcing that they are
police — as this action does not constitute a violation of the Fourth Amendment or a
threat to do so. This exception, however, is inapplicable where the police precipitate
this destruction of evidence by violating the Fourth Amendment or threatening to do
so — as, is probably the case, where police threaten to forcibly enter the premises
unless admitted when they, in fact, have no reasonable basis for doing so. Fn. 112.
_____________________________
Fn. 112.
“It is well established that ‘exigent circumstances’, including the need to prevent the
destruction of evidence, permit police officers to conduct an otherwise permissible
search [on private premises] without first obtaining a warrant.” Kentucky v. King,
563 U.S. ___, 131 S.Ct. 1849, 1854, _179 L.Ed.2d 865 (2011).
“Accordingly, the warrant requirement is subject to certain reasonable exceptions.
One well-recognized exception applies ‘when the exigencies of the situation’ make
the needs of law enforcement so compelling that [a] warrantless search is objectively
reasonable under the Fourth Amendment.
This Court has identified several exigencies that may justify a warrantless search of a
home. Under the ‘emergency aid exception, for example, [1] ‘officers may enter a
home without a warrant to render emergency assistance to an injured occupant or to
protect an occupant from immediate injury.’ [2] Police may enter premises without a
warrant when they are in immediate pursuit of a fleeing subject. [3]And — what is
relevant here — the need ‘to prevent the immediate destruction of evidence’ has long
been recognized as a sufficient justification for a warrantless search. [internal
citations omitted; bracketed numbers added].” Kentucky v. King, 563 U.S. ___, 131
S.Ct. 1849, 1858, 179 L.Ed.2d 865 (2011) (italics added).
“Where, as here, the police did not create by exigency by engaging or threatening to
engage in conduct that violates the Fourth Amendment, warrantless entry to prevent
the destruction of evidence is reasonable and is thus allowed.” Kentucky v. King, 563
U.S. ___, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011) (police knock loudly on
50
apartment door and loudly announce “police” [resulting in noises in apartment that
police thought illegal drugs were being destroyed] did not in itself render inapplicable
the exigent circumstances exception to the search warrant requirement rule; case
remanded to determine whether these noises constituted a reasonable basis for the
police belief that such drugs were being destroyed).
“For these reasons, we conclude that the exigent circumstances rule applies when
police do not gain entry to premises by means of actual or threatened violation of the
Fourth Amendment.” Kentucky v. King, 563 U.S. ___, 131 S.Ct. 1849, 1862, 179
L.Ed.2d 865 (2011).
“There is a strong argument to be made that, at least in most circumstances, the
exigent circumstances rule should not apply where the police, without a warrant or
any legally sound basis for a warrantless entry, threaten that they will enter without
permission unless admitted. In this case, however, no such actual threat was made,
and therefore we have no need to reach that question.” Kentucky v. King, 563 U.S.
___, 131 S.Ct. 1849, 1858, n. 4, 179 L.Ed.2d 865(2011).
Moreover, in the course of striking down warrantless home entries, the Court has
stated that no showing was made in the case that evidence of crime was in danger of
being destroyed or removed. By this discussion, the Court seems to imply that if such
a showing had been made, the search would have been reasonable. Johnson v. United
States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, 441 (1948) (“No evidence or
contraband was threatened with removal or destruction . . .”); United States v. Jeffers,
342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59, 64 (1951) (“[N]or was there an arrest or
imminent destruction, removal, or concealment of the property intended to be
seized.”); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153, 158
(1948) “Nor was the property in the process of destruction . . .”); Vale v. Louisiana,
399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409, 414 (1970) (“The goods ultimately seized
were not in the process of destruction.” “We decline to hold that an arrest on the street
can provide its own ‘exigent circumstances’ so as to justify a warrantless search of the
arrestee’s house.”). See also Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946,148
L.Ed.2d 838, 851-52 (2001) (Souter, J. concurring) (police would have been justified,
under the exigent circumstances exception, in entering accused’s house trailer without
a warrant to prevent the imminent destruction of marijuana therein). [end of footnote
112]
_____________________________
51
New paragraph in text plus corresponding footnotes:
The Court has held, however, that police entry into a home to make an arrest for a
non-jailable drunk driving traffic offense so as to prevent the destruction of evidence
[namely, the home dweller’s blood alcohol level] was not justified under the exigent
circumstances exception to the search warrant requirement rule. Fn. 113. Moreover,
the Court has struck down a warrantless entry onto business premises by IRS agents to
levy on corporate assets in satisfaction of a tax deficiency. The exigent circumstances
exception to the warrant requirement was inapplicable because the agents had at least
a day to obtain a search warrant for the defendant’s office, and the evidence therein
was otherwise in no danger of disappearing. Fn. 114.
_____________________________
Fn. 113.
Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732, 743 (1984) (“Our
hesitation in finding exigent circumstances, especially when warrantless arrests in the
home are at issue, is especially appropriate when the underlying offense for which
there is probable cause to arrest is relatively minor. Before agents of the government
may invade the sanctity of the home, the burden is on the government to demonstrate
exigent circumstances that overcome the presumption of unreasonableness that
attaches to all warrantless home entries.” ).
FN. 114.
G.M. Leasing Corp. v. United States, 429 U.S. 338, 97 S.Ct. 619, 50 L.Ed.2d 530, 549
(1977). For a discussion of this aspect of the exigent circumstances exception, see 3
Wayne LaFave, Search and Seizure § 6.5(b) (4th ed. 2004). Also see cases collected at
“Searches and Seizures” §§42.1, 45 West Key Nos.
52
II. Substantive Law of the Fourth Amendment
Subpart B. The “Unreasonableness” Requirement
Chapter 15. Initial or Secondary Fourth Amendment Intrusion: Warrantless
Searches and Civil or Special Needs Exceptions to the Search Warrant
Requirement Rule
§ 1. Introduction
§ 2. Primary Civil or Special Needs Exceptions
§ 3. Secondary Civil or Special Needs Exceptions
§ 4. Rejected Exceptions
_____________________________
§ 1. Introduction. [pp. 281-84]
p. 283, top of the page, strike the first complete sentence and substitute the
following:
At times, however, the Court reaches the same result by employing the standard
balancing process for determining Fourth Amendment reasonableness without
requiring a showing of special governmental needs. Fn. 4a. In this entire balancing
process, the Court creates, at times, special needs exceptions to the search warrant
requirement rule, and at other times straight civil exceptions sans any showing of
special governmental needs.
_____________________________
Fn. 4a.
Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 2200 n. 3, 2201 n. 4, 165
L.Ed.2d 250 (2006) (general balancing definition of reasonableness used to hold that a
warrantless, suspicionless search of a parolee did not violate the parolee’s Fourth
Amendment rights; special governmental needs showing not required.).
_____________________________
53
Add the following to Fn. 10:
“[W]e have held in the context of programmatic searches conducted without
individual suspicion --- such as checkpoints to combat drunk driving or drug
trafficking --- that ‘an inquiry into programmatic purpose is sometimes appropriate.
[citations omitted]. But this inquiry is directed at ensuring that the purpose behind the
program is not ‘ultimately indistinguishable from the general interest in crime
control.’ [citation omitted]. It has nothing to do with discerning what is in the mind of
the individual officer conducting the search.” Brigham City v. Stuart, 547 U.S. 398,
126 S.Ct. 1943, 1948, 164 L.Ed.2d 650 (2006).
_____________________________
§ 3. Secondary Civil or Special Needs Exceptions [pp. 291-99].
a. Probationer’s home search
p. 291. Change the name of this subsection and add a footnote:
a. Probationer and parolee search. Fn. 52a.
Fn. 52a.
For a thorough discussion of probationer and parolee searches, see 5 Wayne LaFave,
Search and Seizure §10.10, pp. 431 et. seq. (4th ed. 2004).
_____________________________
p. 292. Strike the first complete paragraph on this page and substitute the
following:
It does not follow, however, that “an opinion upholding the constitutionality of a
particular search implicitly holds unconstitutional any search that is not like it.” Fn.
57. Accordingly, the Court has, in fact, done away with any constitutional requirement
of reasonable suspicion for a parolee search --- a result that seems equally applicable
to a probationary search. Namely, the Court has held that a suspicionless search of a
parolee by a police officer under a state statute that authorized such a search did not
violate the parolee’s Fourth Amendment rights. Fn. 58. The only limitation to this
holding is that under the applicable state law, the parolee search cannot be “arbitrary,
54
capricious or harassing” --- a limitation that resembles a due process restriction and
therefore an arguable requirement of the Fourth Amendment as well. Fn. 58a. As in
probationary searches, the Court expressly declined to decide whether the parolee’s
acceptance of a parole condition that authorized such a suspicionless search
constituted a voluntary consent to such a search. Fn. 58b.
_____________________________
Fn. 57.
United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 590, 151 L.Ed.2d 497 (2001).
Fn. 58.
“California law provides that every prisoner eligible for release on state parole ‘shall
agree in writing to be subject to search or seizure by a parole officer or other peace
officer at any time of the day or night, with or without a search warrant and with or
without cause.’ [citation omitted]. We granted certiorari to decide whether a
suspicionless search, conducted under the authority of this statute, violates the
Constitution. We hold that it does not.” * * * “Thus, we conclude that the Fourth
Amendment does not prohibit a police officer from conducting a suspicionless search
of a parolee.” Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 2196, 2202, 165
L.Ed.2d 250 (2006)(suspicionless search of parolee’s person on the street by police
officer upheld; the officer knew petitioner was on parole).
Fn. 58a.
“The concern that California’s suspicionless search system gives officers unbridled
discretion to conduct searches, thereby inflicting dignitary harms that arouse strong
resentment in parolees and undermine their ability to reintegrate into productive
society, is belied by California’s prohibition on ‘arbitrary, capricious or harassing’
searches.” Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 2202, 165 L.Ed.2d
250 (2006). As the Court notes, a search by a police officer of a person not known to
the officer to be on parole has been held unreasonable under California law.126 S.Ct.
at 2202 n.5. “It would necessarily be arbitrary, capricious and harassing to conduct a
suspicionless search of someone without knowledge of the status that renders that
person, in the State’s judgment, susceptible to such an invasion.” 126 S.Ct. at 2208 n.
7 (Stevens, J. dissenting).
55
Fn. 58b.
“Because we find that the search at issue is reasonable under our general Fourth
Amendment approach, we need not reach the issue whether ‘acceptance of the search
condition constituted consent in the Schneckloth . . . sense of a complete waiver of his
Fourth Amendment rights.’” Samson v. California, 547 U.S. 843, 126 S.Ct. 2193,
2199 n. 3, 165 L.Ed.2d 250 (2006). See Justice Stevens rejection of the consent theory
in this context as “sophistry.” 126 S.Ct. at 2206 n. 4 (Stevens, J. dissenting).
_____________________________
c. Public school student search [pp. 293-94]
(1) General rule [p. 293]
Add footnote after the term “school rules” in the fourth line of this section:
Fn. 64 a.
“When the object of a school search is the enforcement of a school rule, a valid search
assumes, of course, the rule’s legitimacy. The Court said plainly in New Jersey v.
T.L.O. [citation omitted] that standards of conduct for schools are for school
administrators to determine without second-guessing by courts lacking the experience
to appreciate what may be needed. Except in patently arbitrary instances, Fourth
Amendment analysis takes the rule as a given, as it should obviously do in this case.”
Safford Unified School District v. Redding, 557 U.S. ___ 129 S.Ct. 2633, 174
L.Ed.2d 354 (2009) (school rule prohibiting possession of all prescription or over-thecounter drugs without prior school permission held obviously proper).
Fn. 65. Add the following at the end of this footnote:
“We have thus applied a standard of reasonable suspicion to determine the legality of
a [public] school administrator’s search of a student and have held that a school search
‘will be permissible in its scope when the measures adopted are reasonably related to
the objectives of the search and not excessively intrusive in light of the age and sex of
the student and the nature of the infraction.’” Safford Unified School District v.
Redding, 557 U.S. ___ 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (quoting from New
Jersey v. T.L.O.).
56
In Redding, a strip search of a 13 year old female public school student was held a
violation of her Fourth Amendment rights because the scope of the search was too
intensive. There was reasonable suspicion to believe that the student had brought
prescription and over-the-counter drugs to school in violation of school rules. But
because there was no reason to suspect that these drugs posed a danger to the school
or that they were concealed in her underwear, the strip search was held unreasonable
under the Fourth Amendment.. 129 S.Ct. 2633 (2009) (but the school official who
ordered the search was held entitled to qualified immunity from liability in this civil
rights lawsuit because the Fourth Amendment right asserted in factual context of case
was not clearly established at the time of the search).
“The issue here is whether a 13-year-old student’s Fourth Amendment right was
violated when she was subjected to a search of her bra and underpants by [public]
school officials acting on reasonable suspicion that she had brought forbidden
prescription and over-the-counter drugs to school. Because there was no reason to
suspect the drugs presented a danger or were concealed in her underwear, we hold that
the search did violate the Constitution, but because there is reason to question the
clarity with which the right was established, the official who ordered the
unconstitutional search is entitled to qualified immunity from liability.” 129 S.Ct. at
2637-2638 [S.Ct.].
“Here the content of the suspicion failed to match the degree of the intrusion. Wilson
[the school official] knew beforehand that the pills were prescription-strength
ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two
Advil, or one Aleve. He must have been aware of the nature and limited threat of the
specific drugs he was searching for, and while just about anything can be taken in
quantities that will do real harm, Wilson had no reason to suspect that large quantities
of the drugs were being passed around, or that individual students were receiving great
numbers of pills.
Nor could Wilson have suspected that Savana [the public school student] was hiding
common painkillers in her underwear. * * * But where the categorically extreme
intrusiveness of a search down to the body of an adolescent require some justification
in suspected facts, general possibilities fall short; a reasonable search that extensive
calls for suspicion that will pay off. * * *
In sum, what was missing from the suspected facts that pointed to Savana was any
indication of danger to the students from the power of the drugs or their quantity, or
57
any reason to suppose that Savana was carrying pills in her underwear. We think the
combination of these deficiencies was fatal to finding the search reasonable.” 129
S.Ct. at 2642-43.
_____________________________
Fn. 66. At the end of this footnote add the following paragraph:
“There is no question that justification for the school officials’ search was required in
accordance with the T.L.O. standard of reasonable suspicion, for it is common ground
that Savana [the public school student] had a reasonable expectation of privacy
covering personal things she chose to carry in her backpack [citing TLO], and that
Wilson’s [the school official] decision to look through it was a ‘search’ within the
meaning of the Fourth Amendment.” Safford Unified School District v. Redding 557
U.S. ___, 129 S.Ct. 2633, 2641 n. 3, 174 L.Ed. 2d 354 (2009) (emphasis added).
_____________________________
d. Public employee search [p. 295]
Fn. 74. Add the following to the end of this footnote:
“Although as a general matter, warrantless searches are per se unreasonable under the
Fourth Amendment, there are a few specifically established and well-delineated
exceptions to that general rule. The Court has held that the special needs of the
workplace justify one such exception. [O’Connor v. Ortega cite omitted].
Under the approach of the O’Connor plurality, when conducted for a
noninvestigatory, work-related purpose or for the investigatio[n] of work-related
misconduct, a government employer’s warrantless search is reasonable if it is justified
at its inception, and if the measures adopted are reasonably related to the objectives of
the search and not excessively intrusive in light of the circumstances giving rise to the
search.” City of Orlando v. Quon, 560 U.S. ___, 130 S.Ct. 2619, 2630, 177 L.Ed2d
216 (2010) (internal citations and quotation marks omitted).
In Quon the Court, using the O’Connor standard, held that a city employer’s audit of
text messages sent by respondent police officer on a pager [owned by the city and
issued to the officer] was a reasonable search under the Fourth Amendment based on
the governmental employee exception to the search warrant requirement rule —
58
assuming arguendo that the police officer had a reasonable expectation of privacy in
such messages, and that the city’s audit of these messes was a search within the
meaning of the Fourth Amendment. The search was (a) reasonable at its inception
because it was conducted for a non-investigative, work-related purpose [i.e. to
determine whether the character limit for its pagers under the city’s contract with the
wireless company that provided such pagers was too low to meet the city’s needs] as
respondent police officer was continually going over the monthly contract limit; and
(b) the scope of the audit was reasonably related to achieving this goal [i.e. city got
transcripts from the wireless company for two months where respondent had exceeded
the monthly character limit to see if the messages were work-related]. Accordingly,
respondent’s Fourth Amendment lawsuit against the city required, as the trial court
found, a judgment for the city.
The Quon Court also recited another part of the 0'Connor standard concerning the
“operational realities” of the workplace: “[B]ecause some government offices may be
so open to fellow employees that no expectation of privacy is reasonable, court must
consider the operational realities of the workplace in order to determine whether an
employee’s Fourth Amendment rights are implicated. On this view, the question
whether an employee has a reasonable expectation of privacy must be addressed on a
case-by-case basis.” City of Ontario v. Quon, 130 S.Ct. at 2628. The Court further
noted that these “operational realities” “could diminish an employee’s privacy
expectations, and this diminution could be taken into consideration into when
assessing the reasonableness of a workplace search.” Id.
The Quon Court also upheld the pager audit in question based on Justice Scalia’s
standard stated in his concurring opinion in O’Connor. Under this standard, the offices
of governmental employees are covered under the Fourth Amendment as a general
matter without any inquiry into the “operational” realities” of the workplace, and that
such searches should be upheld where conducted to retrieve work-related materials or
to investigate violations of workplace rules — searches of the sort that are regarded as
reasonable and normal in the private-employer context. Id. Aside from rejecting the
“operational realities” approach, the Scalia standard is arguably much the same as the
O’Connor standard. Tellingly, however, the Court declines to decide which of these
two standards states Fourth Amendment law — although courts will probably
continue to apply the O’ Connor standard until instructed otherwise.
59
II. Substantive Law of the Fourth Amendment
Subpart B. The “Unreasonableness” Requirement
Chapter 16. Special Unreasonableness Requirement Problems
§ 1. Searches of Homes
§ 2. Automobile Searches
§ 3. Container Searches and Seizures
§ 4. Subpoena Duces Tecum
§ 5. Surgical Intrusions into the Body
§ 6. Search and Seizure of Materials Presumptively Protected by the First Amendment
_____________________________
§ 1. Searches of Homes [pp. 301-08]
d. Applicable exceptions to the search warrant requirement rule
(2) Consent search
p. 304. Insert the following after the second to last sentence, last paragraph, on
this page after fn. “16"[as it appears in the text]:
On the other hand, a warrantless search by law enforcement officers of private
premises shared by two occupants --- where one occupant consents to the search, but a
physically present co-occupant expressly objects to the search --- cannot be justified
under the consent exception to the search warrant requirement rule and, therefore,
without more, is unreasonable under the Fourth Amendment as to the non-consenting
co-occupant. Fn. 16a.
Fn. 16a.
Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 1518-19, 1526, 164 L.Ed.2d 208
(2006).
_____________________________
60
§ 2 Automobile Searches
b. Search of the automobile [p. 309-313]
Add the following to fn. 42 on page 310.
“When a police officer makes a traffic stop, the driver of the car is seized within the
meaning of the Fourth Amendment. The question in this case is whether the same is
true of the passenger. We hold that a passenger is seized as well and so may challenge
the constitutionality of the stop.” Brendlin v. California, 551 U.S. 249, 127 S.Ct.
2400, 2403, 168 L.Ed.2d 132 (2007) .
Top of page 511. STRIKE THE ENTIRE SUB-SUB-SECTION ENTITLED “●
Search incident to a lawful arrest” AND SUBSTITUTE THE FOLLOWING —
AS THE LAW HAS SUBSTANTIALLY CHANGED:
● Search incident to a lawful arrest Fn. 45.
When a law enforcement officer makes an arrest of a motor vehicle occupant, the
officer is authorized to conduct a search of the vehicle’s passenger compartment and
any container therein [but not the trunk] only where:
(1) the arrestee is unsecured and within reaching distance of
the passenger compartment at the time of the arrest, or
(2) it is reasonable to believe that evidence relevant to the
crime of arrest might be found in the passenger
compartment. Fn. 46.
The first situation rarely arises because law enforcement officers almost always
promptly effect an arrest upon deciding to do so. Fn. 47. The second situation
necessarily excludes minor traffic violations — like speeding or a defective tail light
— which rarely, if ever, involve physical evidence that might be found in the vehicle.
61
Fn. 48.
As an aside, however, if the police give the driver a traffic ticket and do not arrest the
driver or any of the passengers, the police may not search the automobile under this
exception — although arguably some other exception to the search warrant
requirement rule might be applicable. Fn. 48a.
_____________________________
Fn. 45.
This exception is examined at Chapter 14, Section 2 of this work.
Fn. 46.
Arizona v. Gant, 556 U.S. ___, 129 S.Ct. 1710, 1719, 1723, 173 L.Ed.2d 485 (2009).
“As result, the Court [in Gant] adopted a new, two-part rule under which an
automobile search incident to a recent occupant’s arrest is constitutional (1) if the
arrestee is within reaching distance of the vehicle during the search, or (2) if the police
have reason to believe that the vehicle contains evidence relevant to the crime of
arrest.” Davis v. United States, 564 U.S. ___, 131 S.Ct. 2419, 2425, 180 L.Ed.2d 285
(2011). (internal citation marks omitted).
Fn. 47. Arizona v. Gant, 556 U.S. ___, 129 S.Ct. 1710, 1719, 173 L.Ed.2d 485
(2009).
Fn. 48. Arizona v. Gant, 556 U.S. ___, 129 S.Ct. 1710, 1719, 173 L.Ed.2d 485
(2009).
Fn. 48a. Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998)
(police under state law could have lawfully arrested defendant for speeding, but
instead issued a traffic citation and then searched defendant’s car, finding marijuana;
held unreasonable search).
_____________________________
62
§ 3. Container Searches and Seizures [pp. 313-19]
(3) Applicable exceptions to the search warrant requirement rule
. Search incident to a lawful arrest: container in automobile or on person
p. 316, 4th complete paragraph. At the end of the last sentence in this paragraph,
insert the following:
This is particularly true because, as noted above, the police already have the authority
to conduct a search of a container found in an automobile as incident to a lawful arrest
of any occupant in the said automobile --- and it seems logical that such searchincident authority would extend as well to arrests effected outside an automobile. Fn.
85a.
Fn. 85a.
California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619, 631 (1991) (
“And the police often will be able to search containers without a warrant . . . as a
search incident to a lawful arrest . . . . Under Belton, the same probable cause to
believe that a container holds drugs will allow police to arrest the person transporting
the container and search it.”)
II. Substantive Law of the Fourth Amendment
Subpart C. Enforcement of the Fourth Amendment
Chapter 17. Historical Development, Nature and Purpose of the Exclusionary
Rule
§ 1. Historical Development
§ 2. The Nature and Purpose of the Exclusionary Rule
§ 3. Fruit of the Poisonous Tree Doctrine
§ 4. Applicability of Exclusionary Rule to Given Proceedings
§ 5. Exceptions to the Exclusionary Rule at Criminal Trials
§ 6. Miscellaneous Procedural and Appellate Considerations: Alternative Civil
Remedy
_____________________________
63
§ 2. The Nature and Purpose of the Exclusionary Rule [pp. 336-41]
Strike the first sentence of the second paragraph and footnotes 15 and 16.
Substitute in its place the following:
The exclusionary rule is a prudential doctrine created by the Court to compel respect
for the Fourth Amendment; Fn. 15. it is also, in part, a rule of constitutional law, as it
has been held enforceable against the states under the Due Process Clause of the
Fourteenth Amendment. Fn. 16.
Fn. 15. Davis v. United States, 564 U.S. ___ 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285
(2011); Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 363, 118
S.Ct. 2014, 141 L.Ed.2d 344 (1998).
Fn. 16. Mapp v. Ohio, 367 U.S. 643, 648, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961),
overruling a contrary holding in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93
L.Ed. 1782 (1949).
_____________________________
p. 336, add Fn. 16a. to the second sentence, first complete paragraph of this
section — which sentence states “It is not, however, a constitutional right of the
individual who invokes it.” Fn. 16a.
Fn. 16a. Davis v. United States, 564 U.S. ___ 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285
(2011); Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 700, 172 L.Ed.2d 496
(2009)
_____________________________
p. 337. First paragraph at the top of the page. Strike the first two sentences and
substitute the following:
Instead the Weeks-Mapp exclusionary rule was adopted to protect the general public,
not the individual who invokes the rule. Its sole purpose is to deter law enforcement
officials from committing future violations of the Fourth Amendment against innocent
people, by removing the incentive for such officials to disregard it. Fn. 18.
_____________________________
64
Fn. 18.
Davis v. United States, 564 U.S. ___, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011;
Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34, 43-44 (1995);United
States v. Callandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561, 571 (1974);
Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct. 3037, 49 L.Ed.2d 1067, 1083 (1976);
United States v. Janis, 428 U.S. 433, 446, 96 S.Ct. 3021, 49 S.Ct. 1046, 1056 (1976);
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, 900-01 (1968).
_____________________________
p. 337, Fn. 22. Add the following to the beginning of this footnote:
Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 2163, 165 L.Ed.2d 56 (2006);
And add the following to the end of this footnote:
Moreover, the flagrancy of the Fourth Amendment violation weighs in favor of
applying the exclusionary rule so as to deter such serious misconduct — while less
egregious violations weigh against such application. “The extent to which the
exclusionary rule is justified by these deterrence principles varies with the culpability
of the law enforcement conduct. As we said in Leon, ‘an assessment of the flagrancy
of the police misconduct constitutes an important step in the calculus’ of applying the
exclusionary rule. [citation omitted].” Herring v. United States, 555 U.S. 135 129
S.Ct. 695, 701, 172 L.Ed.2d 496(2009).
_____________________________
p. 340. Add the following material to the end of the first incomplete paragraph:
“Indeed, the abuses that gave rise to the exclusionary rule [in Weeks, Silverthorne and
Mapp] featured intentional [law enforcement] misconduct that was patently
unconstitutional.” Fn. 39a.
Fn. 39 a.
Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 702, 172 L.Ed.2d 496(2009).
_____________________________
65
p. 338. At the end of the first incomplete paragraph in the text, add the following
text and footnote material:
or for “knock and announce” violations prior to executing a search warrant. Fn. 25a.
Fn. 25a.
Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 2165-68, 165 L.Ed.2d 56 (2006).
_____________________________
§ 3. Fruit of the Poisonous Tree Doctrine [pp. 341-45]
b. Examples of derivative fruits of an unreasonable search and seizure
p. 343. Add the following new subsection at the bottom of the page:
(5) Contrary examples
● “Knock-and-announce” violation. Any evidence secured on private
premises pursuant to a valid search warrant after law enforcement officers have
forcibly entered the premises in violation of the “knock and announce” doctrine Fn.
57a. is considered so attenuated as to dissipate the taint of the original “knock and
announce” violation. This is so because, the “interest[s] protected” by the “knock-andannounce” requirement is not “served by suppression of the evidence obtained.” Fn.
57b. Accordingly, the “fruit of the poisonous tree” doctrine --- and therefore, the
Fourth Amendment exclusionary rule --- is inapplicable to such evidence. Fn. 57c.
_____________________________
66
Fn. 57a.
See Ch. 13, Sec. 4 of this work for a discussion of the “knock-and-announce”
requirements which law enforcement must follow when executing a search warrant.
Fn. 57b.
“Attenuation can occur, of course, when the causal connection is remote. [citation
omitted]. Attenuation also occurs when, even given a direct connection, the interest
protected by the constitutional guarantee that has been violated would not be served
by suppression of the evidence obtained.” Hudson v. Michigan, 547 U.S. 586, 126
S.Ct 2159, 2164, 165 L.Ed.2d 56 (2006).
Fn. 57c.
“One of those interests [protected by the “knock-and-announce” rule] is the
protection of human life and limb, because an unannounced entry may provoke
violence in supposed self defense by the surprised resident. Another interest is the
protection of property. Breaking a house (as the old cases put it) absent an
announcement would penalize someone who did not know of the process, of which if
he had notice, it is to be presumed that he would obey it. The knock-and-announce
rule gives individuals the opportunity to comply with the law and to avoid the
destruction of property occasioned by a forcible entry. And thirdly, the knock-andannounce rule protects those elements of privacy and dignity that can be destroyed by
a sudden entrance. * * *
What the knock-and-announce rule has never protected, however, is one’s interest in
preventing the government from seeing or taking evidence described in a warrant.
Since the interests that were violated in this case have nothing to do with the seizure
of evidence, the exclusionary rule is inapplicable.” Hudson v. Michigan, 547 U.S.
586, 126 S.Ct 2159, 2165, 165 L.Ed.2d 56 (2006) [internal citations and quotations
omitted]. See also Ch. 17, Sec. 5d of this supplement in which the Court also carves
out an exception to the Fourth Amendment exclusionary rule for knock-and-announce
violations.
67
But see LaFave’s withering critique that “Hudson deserves a special niche in the
Supreme Court’s pantheon of Fourth Amendment jurisprudence, as one would be
hard-pressed to find another case with so many bogus arguments piled atop one
another.” 6 Wayne LaFave, Search and Seizure §11.4 at 52 (4th ed. Supp. 2011-12).
See also LaFave’s further analysis of Hudson at 1 Wayne LaFave, Search and Seizure
§1.6(h) at 43-49 (4th ed. Supp. 2011-12).
_____________________________
● Warrantless arrest in a person’s home. Any evidence secured outside a
person’s home [such as a person’s statement to the police] --- following an illegal
arrest in the home based on probable cause but without a required search or arrest
warrant Fn 57d --- is not considered the “fruit of the poisonous tree” because (a) such
a person is lawfully in custody based on probable cause once he is removed from the
home, and (b) the purpose of the warrant requirement would not be served by
suppressing such a statement. Accordingly, the “fruit of the poisonous tree” doctrine -- and therefore, the Fourth Amendment exclusionary rule --- is inapplicable to such
evidence. Fn. 57e.
On the other hand, any evidence secured inside the home from such a person [such as
a person’s statement to the police] following such an illegal arrest is considered the
“fruit of the poisonous tree” because (a) the person is unlawfully in custody without a
warrant while inside his home, and (b) the purpose of the warrant requirement is
served by suppressing such evidence. Accordingly, the “fruit of the poisonous tree”
doctrine --- and therefore, the Fourth Amendment exclusionary rule --- is applicable to
such evidence. Fn. 57.
_____________________________
Fn. 57d.
A routine arrest in a person’s home without a search or arrest warrant and without
consent or exigent circumstances is unreasonable under the Fourth Amendment.
Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); see also
Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed. .2d 38 (1981). See
discussion of this subject at Ch. 12, Sec. 1b of this work.
68
Fn. 57e.
“We hold that, where the police have probable cause to arrest a suspect, the [Fourth
Amendment] exclusionary rule does not bar the State’s use of a statement made by the
defendant outside of his home, even though the statement is taken after [a routine
felony] arrest [of the defendant] made in the home [without a warrant] in violation of
[the rule stated] in Payton [v. New York].” New York v. Harris, 495 U.S. 14, 110
S.Ct. 1640, 109 L.Ed.2d 13, 22 (1990).
“We do hold that the station house statement in this case was admissible because [at
that time], Harris was in legal custody . . . and because the statement, while the
product of an arrest and being in custody, was not the fruit of the fact that the arrest
was made in the house rather than someplace else. To put the matter another way,
suppressing the statement taken outside the house would not serve the purpose of the
[Payton] rule that made Harris’ in-house arrest illegal.” New York v. Harris, 495 U.S.
14, 110 S.Ct. 1640, 109 L.Ed.2d 13, 21-22 (1990).
Fn. 57f.
“The warrant requirement for an arrest in the home is imposed to protect the home,
and anything incriminating the police gathered from arresting Harris in his home,
rather than elsewhere, has been excluded, as it should have been; the purpose of the
rule has thereby been vindicated.” New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640,
109 L.Ed.2d 13, 22 (1990).
c. Refinements: independent source doctrine and inevitable discovery rule
p. 344. At the end of the first paragraph on this page, insert the following:
To invoke the doctrine, it must be shown that the fruits of the initial illegal search or
seizure (1) formed no basis for the decision to conduct the subsequent lawful search
that led to the items ultimately seized, and (2) formed no evidentiary basis for this
subsequent search as well. Fn. 58a.
_____________________________
69
Fn. 58a.
The Court in United States v. Murray, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472
(1988), held that where there is an initial illegal police entry onto premises followed
by the issuance of a search warrant that leads to the seizure of evidence on the same
premises, the government, under the independent source doctrine, has “the onerous
burden of convincing a trial court that no information gained from the illegal entry
affected either [1] the law enforcement officers’ decision to seek a warrant or [2] the
magistrate’s decision to grant it.” * * * “The ultimate question, therefore, is whether
the search pursuant to warrant was in fact a genuinely independent source of the
information and tangible evidence [ultimately obtained]. This would not have been the
case if [1] the agents’ decision to seek the warrant was prompted by what they had
seen during the initial entry, or [2] if information obtained during that entry was
presented to the Magistrate and affected his decision to issue the warrant.” 108
L.Ed.2d at 482, 483-84 (1988) (emphasis and brackets added).
In Murray, federal agents illegally entered a warehouse, observed bales of marijuana
therein, immediately withdrew when they found no one there, and thereafter kept the
warehouse under surveillance while others of their number obtained a search warrant
for the warehouse. The agents’ affidavit in support of the warrant did not mention the
prior illegal entry, but otherwise stated probable cause for the warrant based on
information obtained prior to the illegal entry. The warrant was then executed and the
bales of marijuana in the warehouse were seized. The trial court denied the
defendant’s motion to suppress, and the Court of Appeals affirmed based on the
independent source doctrine.
The Supreme Court, however, reversed with directions for the trial court to determine
“whether the warrant-authorized search of the warehouse was an independent source
of the challenged evidence in the sense we have described.” 108 L.Ed.2d at 484.
_____________________________
Fn. 65.
“That [inevitable discovery] rule does not refer to discovery that would have taken
place if the police behavior in question had (contrary to fact) been lawful. The
doctrine does not treat as critical what hypothetically could have happened had the
police acted lawfully in the first place. * * * The government cannot, for example,
70
avoid suppression of evidence seized without a warrant (or pursuant to a defective
warrant) simply by showing that it could have obtained a valid warrant had it sought
one.” Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 2178, 165 L.Ed.2d 56
(2006) (Breyer, J. dissenting).
_____________________________
§ 5. Exceptions to the Exclusionary Rule at Criminal Trials [pp. 348-53].
c. Objectively reasonable “good faith” exception
(1) Underlying principle
Strike the heading and entire section of the above sub-subsection and replace it
with the following:
(1) Balancing test
By far the most important exception to the exclusionary rule in the criminal trial
context is the objectively reasonable good faith exception. This exception has been
applied in certain discrete factual situations which will be discussed shortly. In the
process of applying the exception , however, the Court has developed a balancing test
to determine whether the exclusionary rule and good faith exception is applicable in a
given case.
That test, briefly stated, is that the exclusionary rule is inapplicable and the good faith
exception applies
(a) when law enforcement officials act with a reasonable
good faith but mistaken belief that their conduct is lawful
and does not violate the Fourth Amendment, or
(b) when their conduct constitutes only a simple, isolated,
non-recurring negligent violation of Fourth Amendment
rights
71
—as, in either of these two events, the deterrent benefits of the rule is outweighed by
the heavy costs of imposing the rule. On the other hand, where the law enforcement
conduct constitutes a
(a) deliberate,
(b) reckless,
(c) grossly negligent, or
(d) recurring or systemic negligent
disregard of Fourth Amendment rights, the exclusionary rule is applicable and the
good faith exception is inapplicable — as, in each of these four events, the deterrent
benefits of the rule outweighs the costs of imposing the rule. Fn. 89.
Stated differently, the exclusionary rule should only be applied where a government
agent has with some culpability violated a person’s Fourth Amendment rights, not
when the agent, based on otherwise proper training, has made a reasonable good faith
mistake of fact or law that his or her actions were perfectly lawful — or has made
merely an isolated, non-culpable negligent mistake of fact or law. Indeed, to apply the
rule in cases of this nature may very well breed disrespect for the law by turning the
criminal trial into a game where violations of little-understood rules or on minor
mistakes of fact or law may allow a law breaker, sometimes a heinous one, to escape
any punishment: the criminal goes free because the constable has reasonably
blundered or has acted in an otherwise non-culpable manner. Fn. 90.
Of course, as Fourth Amendment rules become more established and otherwise
negligent police practices are identified, a reasonable or negligent good faith mistake
of law or fact — depending on the type of mistake — may no longer be regarded as
reasonable or non-culpable in the future. In that event, the deterrence rationale may be
perfectly applicable as the law enforcement community, with the benefit of further
experience, is now equipped with further knowledge of law and facts and may not be
able to repeat the same violation of Fourth Amendment rights without suffering the
exclusionary remedy. This correction is arguably apt — else the good faith exception
72
may run the danger of swallowing the exclusionary rule entirely. Fn. 90a.
Given this grave concern, the Court in future cases will no doubt flesh out what it
means by “simple negligent” violations of the Fourth Amendment, which stay the
operation of the exclusionary rule — as opposed to “intentional,” “grossly negligent,”
“reckless” and “recurring or systemic” violations of the Fourth Amendment, which
trigger the exclusionary rule. Plainly, this will require some fine line-drawing if the
exclusionary rule is to remain a viable deterrent against unlawful police conduct
_____________________________
Fn. 89.
“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that
exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is
worth the price paid by the justice system. As laid out in our cases, the exclusionary
rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some
circumstances recurring or systemic negligence.” Herring v. United States, 555 U.S.
___, 129 S.Ct. 695, 702, 172 L.Ed.2d 496 (2009).
“The basic insight of the [good faith] Leon line of cases is that deterrence benefits of
exclusion ‘var[y] with the culpability of the law enforcement conduct’ at issue. When
the police exhibit ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth
Amendment rights, the deterrent value of exclusion is strong and tends to outweigh
the resulting costs. But when the police act with an objectively ‘reasonable good-faith
belief’ that their conduct is lawful, or when their conduct involves only simple
‘isolated’ negligence, the ‘deterrence rationale loses much of its force’ and exclusion
cannot ‘pay its way.’
The Court has over time applied this good-faith exception over a range of cases.”
Davis v. United States, 564 U.S. ___ 131 S.Ct. 2419,2427- 28, 180 L.Ed.2d
285(2011) (internal citations omitted) (underlining added).
73
Fn. 90.
Stone v. Powell, 428 U.S. 465, 491, 96 S.Ct. 3037, 49 L.Ed.2d 1067, 1086 (1976)
(“[I]f applied indiscriminately, it [the exclusionary rule] may very well have the
opposite effect of generating disrespect for the law and administration of justice.”).
Also see: Arkansas v. Sanders, 442 U.S. 753, 757, 99 S.Ct. 2586, 61 L.Ed.2d 235,
240 (1979) (“Although the general principles applicable to claims of Fourth
Amendment violations are well settled, litigation over requests for suppression of
highly relevant evidence continues to occupy much of the attention of our courts at
all levels of the state and federal judiciary. Courts and law enforcement officials often
find it difficult to discern the proper application of these principles to individual
cases, because the circumstances giving rise to suppression requests can vary almost
infinitely. Moreover, an apparently small difference in the factual situation frequently
is viewed as a controlling difference in determining Fourth Amendment requests.”).
Fn. 90a.
Indeed, Justice Breyer raises this very concern in his dissenting opinion in Davis v.
United States, 564 U.S. ___, 131 S.Ct. at 2439, 180 L.Ed.2d 285 (2011): “Thus, if the
Court means what it now says, if it would place determinative weight upon the
culpability of an individual officer’s conduct, and if would apply the exclusionary
rule only where a Fourth Amendment violation was ‘deliberate, reckless or grossly
negligent,’ then the good faith exception will swallow the exclusionary rule.”
_____________________________
c. (2). The Leon search warrant rule.
Add the following to the end of Fn. 95, p. 351:
“Leon itself, for example, held that the exclusionary rule does not apply when police
conduct a search in ‘objectively reasonable reliance’ on a warrant later held invalid.
The error in such a case rests with the issuing magistrate, not the police officer, and
‘[punish[ing] the errors of judges’ is not the office of the exclusionary rule.” Davis v.
United States, 564 U.S. ___, 131 S.Ct. 2419, 2428, 180 L. Ed.2d 285 (2011) (internal
citations omitted).
74
_____________________________
c.(3). Arrest or search based on a legislative enactment later declared
unconstitutional
Add the following to the end of Fn. 103, p. 353:
“Illinois v. Krull [citation omitted], extended the good faith exception to searches
conducted in reasonable reliance on subsequently invalidated statutes. Id. At 349-350,
107 S.Ct. 1160 (‘legislators, like judicial officers, are not the focus of the rule’).”
Davis v. United States, 564 U.S. ___, 131 S.Ct. 2419, 2428, 180 L. Ed.2d 265 (2011).
_____________________________
c.(4). Arrest based on court-generated computer error on which police
reasonably rely
Add the following to the end or Fn. 104, p. 353:
“In Arizona v. Evans, supra, the Court applied the good-faith exception in a case
where the police reasonably relied on erroneous information concerning an arrest
warrant in a database maintained by judicial employees.” Davis v. United States, 564
U.S. ___, 131 S.Ct. 2419, 2428, 180 L. Ed.2d 265 (2011)._________
p. 353. Add the following new material:
c. (5). Arrest based on a negligent police computer error
In Herring v. United States, Fn. 105a. the U.S. Supreme Court held that the Fourth
Amendment exclusionary rule does not apply to the fruits of an illegal arrest based on
a minor, non-recurring negligent police computer error that an outstanding arrest
warrant existed against the arrestee, when the subject warrant had in fact been
previously recalled. Fn. 105b. The rationale for this result was that the Fourth
Amendment exclusionary rule does not apply to police errors of this nature, but only
to deliberate, grossly negligent, or reckless police conduct — as well as recurring or
75
systemic police negligence. Fn. 105c.
It is arguable, however [depending on the circumstances of the case], that the law
enforcement agency responsible for the computer mistake may not be able to rely on
such a factual mistake in the future after such a computer error has now been
identified — as the agency may thereafter have to “clean up its act” and see to it that
horrendous mistakes of this nature where innocent people are wrongly arrested do not
continue to occur. If the police fail to take such corrective action, their conduct might
be called “grossly negligent” and the exclusionary applicable. Moreover, the
requirement of “recurring or endemic police negligence” in the operation of its
computer system may only refer to when a litigant as an initial matter identifies the
glitch in the system — not later when the glitch has already been brought to police
attention. The Court, however, has not spoken to any of these issues.
_____________________________
Fn. 105a.
555 U.S. ___, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009).
Fn. 105b.
“The Fourth Amendment forbids ‘unreasonable searches and seizures,’ and this
usually requires the police to have probable cause or a warrant before making an
arrest. What if an officer reasonably believes that there is an outstanding arrest
warrant, but that belief turns out to be wrong because of a negligent bookkeeping
[computer] error by another police employee [of another police department] ? The
parties here agree that the ensuing arrest is still a violation of the Fourth Amendment,
but dispute whether contraband found during a search incident to that arrest must be
excluded in a later prosecution.
Our cases establish that such suppression is not an automatic consequence of a Fourth
Amendment violation. Instead, the question turns on the culpability of the police and
the potential of exclusion to deter wrongful police conduct. Here the error was the
result of isolated negligence attenuated from the arrest. We hold that in these
circumstances the jury should not be barred from considering all the evidence.”
76
Herring v. United States, 129 S.Ct. at 698.
In Herring, a county police officer arrested a man [Herring] after being informed by
the police clerk of an adjoining county that the man had an outstanding arrest warrant
in that county for failure to appear on a felony charge. The officer conducted a search
incident to the arrest and seized a pistol from the man’s person and illegal drugs from
the car the man was driving. Shortly thereafter, however, the aforesaid police clerk
discovered that the subject warrant had been recalled five months previously and
immediately so informed the officer’s department.
Normally, when a warrant is recalled in the adjoining police department, that fact is
conveyed to the clerk who enters same in the police computer and the physical copy
of the warrant is disposed of. In this case, however, the warrant was destroyed, but for
whatever reason the recall of the warrant was never entered in the police computer
database — so that the warrant information was erroneously still in the police
computer.
Herring was indicted in federal court for illegally possessing the above gun and drugs.
His motion to suppress same was denied by the trial court and Herring was convicted.
The court of appeals and the U.S. Supreme Court affirmed.
See 1 Wayne LaFave, Search and Seizure §1.6 (i) at 49- 71(4th ed. 2011-12 Supp), for
an extensive analysis and damning critique of the Herring decision as having “taken
another slice out of the exclusionary rule.” Id. at 49.
Fn. 105c.
“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that
exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is
worth the price paid by the justice system. As laid out in our cases, the exclusionary
rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some
circumstances recurring or systemic negligence. The error in this case does not rise to
that level. * * *
In light of our repeated holdings that the deterrent effect of suppression must be
substantial and outweigh any harm to the judicial system [citation omitted], we
77
conclude that when police mistakes are the result of negligence such as that described
here, rather than systemic error or reckless [or deliberate or grossly negligent]
disregard of constitutional requirements, any marginal deterrence does not ‘pay its
way.’ [citation omitted]. In such a case, the criminal should not ‘go free because the
constable has blundered.’ [citation omitted].” Herring v. United States, 129 S.Ct. at
702, 704.
_____________________________
Following the above, add the following new material:
c.(6). Search based on binding appellate precedent later overruled
In Davis v. United States, Fn. 105d. the United States Supreme Court held that the
exclusionary rule is inapplicable — and the “good faith” exception to the Fourth
Amendment exclusionary rule is applicable --- to a search conducted in objectively
reasonable reliance on a binding appellate precedent that validates the search, which
decision was later overruled by the U.S. Supreme Court after the search was
conducted. Fn. 105e. The rationale for this decision is that the police could in no way
be deterred by applying the exclusionary rule to this otherwise non-culpable conduct
— as their action was in strict compliance with what the law was at the time of the
search. Fn. 105f.
There may be, however, one limitation to this rule. This exception may not apply to
the litigant who secures an overruling decision of the U.S. Supreme Court — even
though this decision was rendered after the search under attack was conducted. This
limitation may be necessary so as not to discourage litigants from seeking the U.S.
Supreme Court to overrule one of its decisions and invalidate the search the litigant
was subjected to. Otherwise litigants would be discouraged from seeking such an
overruling decision, as even if they ultimately prevailed, the exclusionary rule would
be inapplicable in any event. Fn. 105g.
Fn. 105d.
Davis v. United States, 564 U.S. ___ 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011).
78
Fn. 105e.
“The question here is whether to apply this [exclusionary] sanction when the police
conduct a search in compliance with binding precedent that is later overruled. Because
suppression would do nothing to deter police misconduct in these circumstances, and it
because it would come at a high cost to both truth and public safety, we hold that
searches conducted in objectively reasonable reliance on binding appellate precedent
are not subject to the exclusionary rule. * * *
“The basic insight of the [good faith] Leon line of cases is that deterrence benefits of
exclusion ‘var[y] with the culpability of the law enforcement conduct’ at issue. When
the police exhibit ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth
Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the
resulting costs. But when the police act with an objectively ‘reasonable good-faith
belief’ that their conduct is lawful, or when their conduct involves only simple
‘isolated’ negligence, the ‘deterrence rationale loses much of its force’ and exclusion
cannot ‘pay its way.’
“The Court has over time applied this good-faith exception over a range of cases.”
Davis v. United States, 564 U.S. ___ 131 S.Ct. 2419, 2427-28, 180 L.Ed.2d 285
(2011).
In Davis, local police conducted a routine traffic stop of the Petitioner who was driving
a car and later arrested him for DUI. Police also arrested an occupant in the car for
giving a false name to the police. Both were handcuffed and placed in the back of
separate patrol cars. Police then searched the passenger compartment of Petitioner’s
car and seized a revolver from inside the Petitioner’s jacket.
This search was conducted in full compliance with an 11th Circuit precedent [United
States v. Gonzalez, 71 F.3d 819, 824-27 (11th Cir. 1996)] which interpreted New York
v. Belton, 453 U.S. 454, 458-59, 101 L.Ed.2d 768 (1981), to allow law enforcement
officials to search, as here, the passenger compartment of an auto after arresting an
occupant of the auto, even though the occupant was handcuffed and was secured away
from the car at the time of the search.
After the search was conducted, however, the U.S. Supreme Court overruled Belton in
another case [Arizona v. Gant, 556 U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009)],
79
thereby overruling Gonzalez as well. In the instant case, the U.S. Supreme Court held
that Gant applied retroactively to the present case, but that the exclusionary rule was
inapplicable under the good faith exception to the exclusionary rule. Davis v. United
States, 564 U.S. ___ 131 S.Ct. 2419, 2424 2426-27, 180 L.Ed.2d 285 (2011) (internal
citations omitted).
See 1 Wayne LaFave, Search and Seizure §1.3 at 19-26(4th ed. 2011-12 Supp), for an
extensive analysis and critique of the Davis decision, concluding, “And thus Davis
(which even appears to expand the breadth of Herring) shares with that decision a most
troubling aspect: it looks like a recipe for the total abandonment of the Fourth
Amendment exclusionary rule.” Id. at 26.
Fn. 105f.
“The search incident to Davis’ arrest in this case followed the Eleventh Circuit’s
Gonzalez precedent to the letter. Although the search turned out to be unconstitutional
under Gant, all agree that the officers’ conduct with the then-binding Circuit law was
not culpable in any way.
“Under our exclusionary rule precedent, this acknowledged absence of police
culpability dooms Davis’s claim. Police practices trigger the harsh sanction of
exclusion only when they are deliberate enough to yield ‘meaningful deterrence, and
culpable enough to be worth to be ‘worth the price paid by the judicial system.’ The
conduct of the officers here was neither of these things.” Davis v. United States, 564
U.S. ___ 131 S.Ct. 2419, 2428,180 L.Ed.2d 285(2011) (internal citations omitted).
As an aside, Justice Sotomayer in her concurring opinion in Davis v. United States,
564 U.S. ___, 131 2419, 2435, 180 L.Ed.2d 285 (2011), points out that this case “does
not present the markedly different question whether the exclusionary rule applies when
the law governing the constitutionality of the search is unsettled.” Arguably, the
conduct of a law enforcement officer might be characterized as “grossly negligent”
[thus triggering the exclusionary rule] if the officer, faced with unclear legal authority,
nonetheless proceeds with an otherwise unauthorized or questionable search or seizure.
Surely, the incentive in cases of this nature should be for the officer to err in favor of
respecting, rather than disregarding constitutional rights — and this consideration
would argue in favor of imposing the exclusionary rule here. Compare United States v.
Johnson, 457 U.S. 537, 561, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982).
80
Fn. 105g.
“Davis argues that the Fourth Amendment precedents of this Court will be effectively
insulated from challenge under a good exception for reliance on appellate precedent. *
**
At most, Davis’ argument might suggest that — to prevent Fourth Amendment law
from becoming ossified — the petitioner in a case that results in the overruling of one
of this Court’s precedents should be given the victory by permitting the suppression of
evidence in that one case. Such a result would undoubtedly be a windfall to this one
random litigant. But the exclusionary rule is ‘not a personal constitutional right’. It is a
‘judicially created’ sanction specifically designed as a ‘windfall’ to deter future Fourth
Amendment violations. The good faith exception is a judicially created exception to
this judicially created rule. Therefore in a future case, we could, if necessary, recognize
a limited exception to the good-faith exception for a defendant who obtains a judgment
over-ruling one of our Fourth Amendment precedents.” Davis v. United States, 564
U.S. ___ 131 S.Ct. 2419, 2433-34, 180 L.Ed.2d 285 (2011) (internal citations omitted)
(underlining added).
_____________________________
After the above, add the following new material:
d. “Knock and announce” violation
Evidence secured from private premises pursuant to a valid search warrant after law
enforcement officers forcibly have entered the premises in violation of the “knock and
announce” doctrine Fn.105e. is admissible in evidence as an exception to the Fourth
Amendment exclusionary rule. Fn.105f. The Court engaged in a balancing process to
reach this holding, concluding that the social costs of applying the exclusionary rule to
“knock and announce” violations outweighed whatever deterrence benefits might be
gained from such an application. In particular, the Court was impressed with the
deterrence benefits that already exist from (a) civil suits, and (b) the increasing
professionalism of police forces --- benefits that were not present to the extent they
were at the time Mapp v. Ohio was decided in 1961. Fn. 105g.
_____________________________
81
Fn. 105e.
See Ch. 13, Sec. 4 for a discussion of the “knock-and-announce” requirements which
law enforcement must follow when executing a search warrant.
Fn. 105f.
Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 2165-68, 165 L.Ed.2d 56 (2006).
“In sum, the social costs of applying the exclusionary rule to knock-and-announce
violations are considerable; the incentives to such violations are minimal to begin with,
and the extant deterrence against them are substantial --incomparably greater than the
factors deterring warrantless entries when Mapp was decided. Resort to the massive
remedy of suppressing evidence of guilt is unjustified.” 126 S.Ct. at 2168.
The Court also concluded, as an alternative holding, that evidence secured on private
premises pursuant to a valid search warrant following a “knock and announce”
violation is so attenuated as to dissipate the taint of such violation, and is therefore not
barred from evidence by the “fruit of the poisonous tree” doctrine. See Ch. 17, Sec.
3b(5) of this supplement.
See LaFave’s withering critique that “Hudson deserves a special niche in the Supreme
Court’s pantheon of Fourth Amendment jurisprudence, as one would be hard-pressed
to find another case with so many bogus arguments piled atop one another,” 6 Wayne
LaFave, Search and Seizure §11.4 at 4 (4th ed. Supp. 2011-12). See also LaFave’s
further analysis of Hudson at 1 Wayne LaFave, Search and Seizure §1.6(h) at 43-49
(4th ed. Supp. 2011-12).
Fn. 105g.
Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 2167-68, 165 L.Ed. 56 (2006).
Justice Kennedy concurred in the Court’s 5-4 decision, but noted that “the continued
operation of the exclusionary rule, as settled and defined by our precedents, is not in
doubt.” Hudson v. Michigan, 126 S.Ct. at 2170 (Kennedy, J. concurring). Moreover,
the Court itself has since stated that “the Constitution protects property owners . . . by
interposing, ex ante, the ‘deliberate, impartial judgment of a judicial officer . . .
between the citizen and the police’ [citation omitted], and by providing, ex post, a right
82
to suppress evidence improperly obtained and a cause of action for damages.” United
States v. Grubbs, 547 U.S. 90, 126 S.Ct. 1494, 1501, 164 L.Ed.2d 195 (2006).
Still, LaFave cautions that Hudson “has the capacity to metastasize into a much
broader limitation on the suppression doctrine” and recommends that it “should be
confined to its particular facts . . . .” 1 Wayne LaFave, Search and Seizure §1.6(h) at
45, 46 (4th ed. Supp. 2011--12).
_____________________________
§ 6. Miscellaneous Procedural and Appellate Considerations: Alternative Civil
Remedy [pp. 353-62]
c. Standard of appellate review
p. 358. Add the following paragraph after the second complete paragraph on this
page:
Similarly, in a civil suit for violation of one’s Fourth Amendment rights, all reasonable
factual inferences must be resolved on appeal in favor of the jury or non-jury verdict.
But whether those historical facts legally amount to a violation of the Fourth
Amendment is reviewed based on a de novo standard. Fn. 134a.
Fn. 134a.
Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 1470, n. 1, 161 L.Ed. 2d 299 (2005).
_____________________________
f .Retroactive application of Fourth Amendment appellate decisions
Strike the last two paragraphs of this subsection and substitute the following two
paragraphs:
The Court has followed a zig-zag course in deciding this issue. Fn. 143. Without
reciting all the Court’s twists and turns, the current law is that when a U.S. Supreme
Court decision announces a new constitutional rule of criminal procedure [Fn. 144],
the new rule does not generally apply retroactively, and therefore is inapplicable to a
federal habeas corpus proceeding collaterally attacking a state court conviction. The
new constitutional rule is, however, applicable (a) to all cases on direct review at the
time the new rule is announced, Fn. 144a. and (b) to all future trials conducted after
83
the new rule is announced. There are two exceptions to this non-retroactivity approach
in which the new rule must also be applied in a federal habeas corpus proceeding. (1)
The first is where the new rule places certain individual conduct beyond the power of
the states to proscribe; and (2) the second is where the new rule is a “watershed” rule
that implicates the fundamental fairness of the criminal trial. Nonetheless, the states are
free to apply or not apply a new rule of constitutional criminal procedure retroactively
in a state collateral attack proceeding. Fn. 145. On the other hand, where the U.S.
Supreme Court decision announces no new constitutional rule of criminal procedure
but merely applies settled precedents to a new and different factual situation, the
decision is fully retroactive. Fn. 146.
_____________________________
Fn. 143.
For a discussion of the Court’s line of decisions on this issue, see 6 Wayne LaFave.,
Search and Seizure § 11.5 (4th ed. 2004). It all began with Linkletter v. Walker, 381
U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), in which the Court held that the rule
of Mapp v. Ohio did not apply retroactively and thus was inapplicable to any postconviction collateral attack proceeding. This was done primarily because of the
enormous disruptive effect on the administration of justice if the Mapp exclusionary
rule were retroactively applied to finalized convictions in the 24 states that had no
exclusionary rule prior thereto.
Fn. 144.
“In general, however, a case announces a new rule when it breaks new ground or
imposes a new obligation on the States or Federal Government. [citations omitted]. To
put it differently, a case announces a new rule if the result was not dictated by
precedent existing at the time the defendant’s conviction became final.” Teague v.
Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334, 349 (1989). In turn, the
Court has defined “final” to mean when the judgment of conviction has been rendered,
the availability of appeal exhausted, and the time for a petition to the U.S. Supreme
Court has either elapsed or such certiorari petition has been denied. Linkletter v.
Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, 608, n. 8 (1965); see Allen v.
Hardy, 478 U.S. 255, 258 n.1, 106 S.Ct. 2878, 92 L.Ed.2d 199, 204 n.1 (1986)
(adopting the aforesaid Linkletter definition of “final”).
84
Fn. 144a.
As a caveat, however, the Fourth Amendment exclusionary rule may not apply even
though the new decision applies retroactively to a case on direct review. This may
occur, for example, where law enforcement officers reasonably rely on a binding
appellate precedent that validates their search, but which the later new decision
overrules. In that event, the “good faith” exception to the exclusionary is applicable.
Davis v. United States, 564 U.S. ___ 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). See
Section 5c(6) of this chapter of this “good faith” exception.
Fn. 145.
“New constitutional rules announced by this Court that place certain kinds of primary
individual conduct beyond the power of the States to proscribe, as well as “watershed”
rules of criminal procedure must be applied in all future trials, all cases on direct
review, and all federal habeas corpus proceedings. All other new rules of criminal
procedure must be applied in future trials and in cases pending on direct review, but
may not be the basis for a federal collateral attack on a state conviction. This is the
substance of the “Teague” rule described by Justice O’Connor in her plurality opinion
in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The
question in this case is whether Teague constrains the authority of the state courts to
give broader effect to new rules of criminal procedure than is required by that opinion.
We have never suggested that it does, and now hold that it does not.”
Danforth v. Minnesota, 552 U.S. ___, 128 S.Ct. 1029, 1032-33, 169 L.Ed.2d 859
(2008) (footnote omitted in which the Court notes that the Teague rule has since been
adopted by Perry v. Lynaugh, 492 U.S. 302, 313, 109 S.Ct. 2934, 106 L.Ed.2d 256
(1989)).
“Justice O’Connor [in Teague] endorsed a general rule of nonretroactivity for cases on
collateral review stating that ‘[u]nless they fall within an exception to the general rule,
new constitutional rules of criminal procedure will not be applicable to those cases that
become final before the new rules are announced.’ [citation omitted]. The opinion
defined two exceptions: rules that render types of primary conduct ‘‘beyond the power
of the criminal law-making authority to proscribe, ‘‘and ‘watershed’ rules that
‘implicate the fundamental fairness of the trial,’ [citation omitted].” Danforth v.
Minnesota, 128 S.Ct. at 1037-38.
85
Fn. 146.
“First, when a decision of this Court merely has applied settled precedents to new and
different factual situations, no real question has arisen as to whether the later decision
should apply retroactively. In such cases, it is a foregone conclusion that the rule of the
later case applies in earlier cases, because the later decision has not in fact altered that
rule in any material way. [citations omitted].” United States v. Johnson,457 U.S. 537,
549, 102 S.Ct. 2579, 73 L.Ed.2d 202, 213 (1982).
_____________________________
In the Fourth Amendment context, this means that any U.S. Supreme Court decision
announcing a new Fourth Amendment rule must be applied to any case which has not
yet become “final” Fn. 147. prior to the effective date of the decision — i.e.(1) to all
cases on direct review at the time the new rule is announced, and (2) to all future trials
conducted after the new rule is announced. Fn. 147a. Such a new Fourth Amendment
rule, however, is never applicable in a federal habeas corpus proceeding. This is so
because the above two exceptions to nonretroactivity would never be applicable —
namely, Fourth Amendment jurisprudence (a) never places individual conduct beyond
the power of a state to proscribe, and (b) never implicates the fundamental fairness of
the underlying criminal trial. Fn. 147b. The states, nonetheless, are free to apply or not
apply a new Fourth Amendment rule retroactively in a state collateral attack
proceeding. Fn. 147c. Of course, where the U.S. Supreme Court decision announces
no new Fourth Amendment rule but merely applies settled Fourth Amendment
precedents to new and different factual situations, the decision is fully retroactive. Fn.
147d. Finally, it would appear that all pre-Teague precedents on the issue of
retroactivity remain intact. Fn. 147e.
Fn. 147.
The Court has defined “final” to mean when the judgment of conviction has been
rendered, the availability of appeal exhausted, and the time for a petition to the U.S.
Supreme Court has either elapsed or such certiorari petition has been denied.
Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, 608, n. 8 (1965);
see Allen v. Hardy, 478 U.S. 255, 258 n.1, 106 S.Ct. 2878, 92 L.Ed.2d 199, 204 n.1
(1986) (adopting the aforesaid Linkletter definition of “final”).
86
Fn. 147a.
See authorities collected at footnote 145 supra.
Fn. 147b.
As an aside, Fourth Amendment issues of any kind can, in any event, only be raised by
a state prisoner in a federal habeas corpus proceeding where the state has not accorded
the prisoner an opportunity for a full and fair litigation of his or her Fourth Amendment
claim in state court; otherwise, such issues are precluded from federal habeas corpus
review. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).
Fn. 147c.
See authorities collected at footnote 145 supra.
Fn. 147d.
See authorities collected at footnote 146 supra.
Fn. 147e.
Compare United States v. Johnson, 457 U.S. 537, 549, 102 S.Ct. 2579, 73 L.Ed.2d
202, 213 (1982) (leaving intact all pre-1982 retroactivity decisions). See e.g.
Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969)(the rule of
Katz v. United States is not retroactive); Williams v. United States, 401 U.S. 646, 91
S.Ct. 1148, 28 L.Ed.2d 388 (1971) (the rule of Chimel v. United States is not
retroactive ); United States v. Peltier, States,422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d
374 (1975) (rule of Almeida-Sanchez v. United States is not retroactive).
_____________________________
g. Alternative civil remedy: Bivens suit and § 1983 suit
Fn. 152. Add the following to the beginning of this footnote:
“An officer conducting a search is entitled to qualified immunity where clearly
established law does not show that the search violated the Fourth Amendment. (citation
87
omitted). This inquiry turns on the ‘objective legal reasonableness of the action, in
light of the legal rules that were clearly established at the time it was taken.’ (citations
omitted). * * * The principles of qualified immunity shield an officer from personal
liability when an officer reasonably believes that his or her conduct complies with the
law. Police officers are entitled to rely on existing lower court cases without facing
personal liability for their actions.” Pearson v. Callahan, 555 U.S. ___, 129 S.Ct. 808,
822, 833, 172 L.Ed.2d 565 (2009) (§1983 action) (emphasis added). “To be established
clearly, however, there is no need that ‘the very action in question [have] previously
been held unlawful.’ The unconstitutionality of outrageous conduct obviously will be
unconstitutional, this being the reason, as Judge Posner has said, that the ‘[t]he easiest
cases don’t even arise. But even as to action less than an outrage, officials can still be
on notice that their conduct violates established law . . . In novel factual
circumstances.’” Safford Unified School District v. Redding, 557 U.S. ___, 129 S.Ct.
2633, 2643, 174 L.Ed.2d 354 (2009) (internal citations omitted) (qualified immunity
shown as lower federal court decisions were divided on how the TLO standard applies
to strip searches as here).
p. 362. Strike the first paragraph on this page and substitute the following two
paragraphs, as the law has substantially changed:
Initially, a two fold inquiry [known as the Saucier inquiry] was mandatorily required
in determining whether this qualified immunity defense was applicable in a given case:
(1) Taken in the light most favorable to the party asserting the Fourth Amendment
injury, do the facts alleged show the law enforcement officer’s conduct violated a
Fourth Amendment right of the party complaining? (2) If so, was this right clearly
established in the specific factual context of the case, so that it would be clear to a
reasonable officer that his conduct was unlawful in the factual situation that he
confronted? Fn. 153. If the answer to either question was “no,” the officer was
entitled to a summary judgment based on qualified immunity; if not, a summary
judgment based on this defense did not lie. Fn. 154.
Since then, the law has changed in one — but only one — important respect. Although
permissible and certainly appropriate in many cases, the sequence of this two-fold
inquiry is no longer mandatory, but is now discretionary depending on the facts and
circumstances of the case. Fn. 155. This means that a trial or appellate court, for
example, has the sound discretion to skip the first inquiry and solely address the second
inquiry — if the answer thereto would otherwise be dispositive in sustaining the
88
qualified immunity defense. Fn. 155a. Of course, the courts are still free to follow the
two-step inquiry sequence should they so choose; they simply are not required to do so.
Fn. 155b. Moreover, it still remains true that when the defendant officer asserts a
qualified immunity defense, a ruling on that issue should be made early in the
proceedings so that the costs and expenses of trial are avoided where the defense is
dispositive. Fn. 155b.
_____________________________
Fn. 153.
“A court required to rule upon the qualified immunity issue must consider, then, this
threshold issue: [1] Taken in the light most favorable to the party asserting the injury,
do the facts alleged show the officer’s conduct violated a constitutional right? *** If no
constitutional right would have been violated, there is no necessity for further inquiries
concerning qualified immunity. On the other hand, if a violation could be made out on
a favorable view of the party’s submissions, the next [2] sequential step is to ask
whether the right was clearly established.” Saucier v. Katz, 533 U.S. 194, 121 S.Ct.
2151, 2155-56, 150 L.Ed.2d 272 (2001) (bracketed numbers added)
Fn. 154.
It has been held that the lead officer who executed a search warrant that contained no
description of the things to be seized could not rely on an objective “good faith”
qualified immunity defense in a Bivens civil suit brought against the officer --- and that
a summary judgment in favor of the officer based on this defense was improperly
entered. Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). An
opposite result, however, has been reached in a §1983 action where a police officer
shot and wounded a fleeing felon attempting to escape arrest in a motor vehicle which
arguably threatened the safety of other people in the immediate vicinity. Brosseau v.
Haugen, 543 U.S. 194 125 S.Ct. 596, 160 L.Ed.2d 583 (2004).
Fn. 155.
“[W]e conclude that, while the sequence set forth there [in Saucier] is often
appropriate , it should no longer be regarded as mandatory. The judges of the district
courts and courts of appeals should be permitted to exercise their sound discretion
which of the two prongs of the qualified immunity analysis should be addressed first in
89
light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S.
223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565(2009).
Fn. 155a.
“There are cases in which it is plain that a constitutional right is not clearly established
but far from obvious whether in fact there is such a right.” Pearson v. Callahan, 555
U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009); see also Scott v. Harris, 550
U.S. 372, 127 S.Ct. 1769, 1774, 167 L.Ed.2d 686 (2007).
Fn. 155b.
“Although we now hold that the Saucier protocol should not be regarded as mandatory
in all cases, we continue to believe that it is often beneficial * * * Our decision does
not prevent the lower courts from following the Saucier procedure; it simply
recognizes that those courts should have the discretion to decide whether that
procedure is worthwhile in particular cases.” Pearson v. Callahan, 555 U.S. 223, 129
S.Ct. 808, 821, 818, 172 L.Ed.2d 565 (2009). The court, for example, may deem it
important to “the development of constitutional precedent” that it be understood that
the officer’s conduct did, in fact, violate the complaining party’s Fourth Amendment
rights — although the Fourth Amendment right asserted was not clearly established at
the time of the search, and thus a qualified privilege would lie. 129 S.Ct. at 818.
Moreover, ‘[i]t often may be difficult to decide whether a Fourth Amendment right is
clearly established without deciding precisely what that constitutional right is’ —
thereby requiring the court to answer both inquiries in certain cases, regardless of
whether the qualified immunity defense be sustained or not. 129 S.Ct. at 818, quoting
from Lyons v. Xenia, 417 F.3d 565, 581 (6th Cir. 2005) (Sutton, J. concurring).
Fn. 155c.
Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001).
_____________________________
90
TABLE OF CASES AND AUTHORITIES IN SUPPLEMENT
Cases
Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986). Ch. 17, Sec. 6f.
Arizona v. Gant, 556 U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Ch. 11, Sec.
1; Ch. 11, Sec. 1; Ch. 14, Secs. 2a, 2f; Ch. 16, Sec. 2b.
Arizona v. Johnson, 555 U.S. ___, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). Ch. 7, Sec.
4b; Ch. 14, Sec. 3a.
Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). Ch. 9,
Sec. 2; Ch. 10, Sec. 3; Ch. 16, Sec. 2.
Brigham City v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). Ch. 7,
Sec. 4; Ch. 11, Secs. 1&2; Ch. 14, Sec. 6; Ch. 15, Sec. 1.
Brousseau v. Hagen, 543 U.S. 194, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). Ch. 17,
Sec. 6.
California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed 2d 619, 631 (1991).
Ch. 14, Sec. 2; Ch. 16, Sec. 3.
City of Ontario v. Quon, 560 U.S. ___, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010).
Ch. 15, Sec. 3d.
91
Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S.Ct. 2022, 29 L.Ed. 2d (1971)
Ch. 7, Sec. 3.
Danforth v. Minnesota, 552 U.S. ___, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008). Ch. 17,
Sec. 6f.
Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). Ch. 17,
Sec. 6f.
Davis v. United States, 564 U.S. ___ 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). Ch. 14,
Sec. 2f; Ch. 16, Sec. 2; Ch. 17, Sec. 2, Sec. 6f; Ch. 17, Secs. 5c(1), (2), (3), (4),
(5) & (6).
Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). Ch. 1,
Sec. 1; Ch. 3, Sec. 4; Ch. 7, Secs. 2, 3, 4; Ch. 14, Sec. 5 ; Ch. 16, Sec. 1.
Grubbs, United States v., 547 U.S. 90, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006). Ch.
13, Sec. 2; Ch. 17, Sec. 5.
Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) Ch. 7,
Sec. 3c; Ch. 17, Secs. 2 & 5.
Hudson v. Michigan, 547 U.S. 586 , 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006). Ch. 7,
Sec. 3; Ch. 13, Sec. 4; Ch. 17, Secs. 2, 3, 5.
Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). Ch. 10,
Secs. 2, 5; Ch. 12, Sec. 1a, k; Ch. 13, Sec. 4.
92
Jacobsen, United States v., 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85, 100-101
(1984). Ch. 10, Sec. 2.
Johnson v., United States, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). Ch.
17, Secs. 5 & 6f.
Kentucky v. King, 563 U.S. ___, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011). Ch. 7 §4b;
Ch. 11 §§ 1, 2.; Ch. 12 §2c(1); Ch. 14 §§ 5, 6a, 6d.
Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998). Ch. 15, Sec.
2b.
Knights, United States v., 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). Ch.
15, Sec. 3.
Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). Ch. 7,
Sec. 4.
Lyons v. Xena, 417 F.2d 565 (6th Cir. 2005). Ch. 17, Sec. 6g.
Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) Ch. 17,
Sec.6f.
Los Angeles County v. Rettele, 550 U.S. 609, 127 S.Ct. 1989, 167 Ed.2d 974 (2008)
Ch. 12, Sec. 1k; Ch. 13, Secs. 2, 4.
Mapp v. Ohio, 367 U.S. 643, 648, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Ch. 17, Sec.
2.
93
Maryland v. Pringle, 540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). Ch. 10,
Sec. 3.
Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984). Ch. 7, Sec.
4b; Ch. 14, Sec. 6c.
Michigan v. Fisher, 558 U.S. ___, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) Ch. 7, Sec.
4b; Ch. 14, Sec. 6c.
Miller v. United States, 357 U.S. 301, 307, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). Ch.
3, Sec. 4.
Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 564 (1978).
Ch. 7, Sec. 3.
Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed. 2d 299 (2005). Ch. 12, Sec.
1; Ch. 13, Sec. 4; Ch. 17, Sec. 6.
Murray, United States v., 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). Ch.
17, Sec. 3.
New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Ch. 14,
Sec. 2f.
New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13, 22 (1990). Ch. 17,
Sec. 3.
Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Ch. 17,
Sec. 3.
94
Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Ch. 7, Sec.
4c; Ch. 17, Sec. 6f.
Peltier v., United States,422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975). Ch. 17,
Sec. 6f.
Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 363, 118 S.Ct. 2014,
141 L.Ed.2d 344 (1998). Ch. 17, Sec. 2.
Perry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Ch. 17, Sec.
6f.
Place, United States v., 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Ch. 12,
Sec. 1k; Ch. 13, Sec. 4.
Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Ch. 10, Sec. 3.
Safford Unified School District v. Redding, 557 U.S. ___, 129 S.Ct. 2633, 174 L.Ed.2d
354(2009). Ch. 7, Sec. 4b; Ch. 11, Sec. 3; Ch. 15, Sec. 3c; Ch. 17, Sec. 6g.
Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). Ch. 7,
Sec. 3; Ch. 11, Sec. 3; Ch. 14, Sec. 1; Ch. 15, Secs. 1, 3.
Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Ch. 17, Sec.
6g.
Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Ch. 7, Secs.
3, 4; Ch. 9, Sec. 2; Ch. 12, Sec. 1m; Ch. 17, Sec. 6.
95
Scott v. United States, 436 U.S. 128, 137-38, 98 S.Ct. 1717, 57 L.Ed.2d 1150, 178,
1979 (1978) Ch. 11, Sec. 2.
Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). Ch. 17,
Sec. 3.
Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).Ch. 17, Sec. 6f.
Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Ch. 17, Sec.
6f.
Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 443, 455-56 (1985). Ch.
12, Sec. 1m.
Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008). Ch.7, Secs.
1, 2, & 3; Ch. 12, Sec. 1c; Ch.14, Sec. 2c.
Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996)
Ch. 11, Sec. 2.
Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971). Ch.
17, Sec. 6f.
Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) Ch. 17, Sec. 2.
96
Other Authorities
Akhil Amar, America’s Constitution (2005). Ch. 7, Sec. 1.
Stephen Breyer, Active Liberty (2005). Ch. 7, Sec. 1.
1 Wayne LaFave, Search and Seizure §1.6(h) (4th ed. Supp. 2011-12) . Ch. 17, Secs. 3,
5d.
1 Wayne LaFave, “Search and Seizure” § 1.6(i) (4 ed. Supp. 2011-12) Ch. 17, Sec.
5c(5).
1 Wayne LaFave, Search and Seizure §2.2(a) (4th ed. 2004). Ch. 10, Sec. 5c.
2 Wayne LaFave, Search and Seizure § 3.7(c) (4th ed. 2004). Ch. 13, Sec. 2(i).
5 Wayne LaFave, Search and Seizure §10.10 (4th ed. 2004). Ch. 15, Sec. 3.
6 Wayne LaFave, Search and Seizure §11.4 (4th ed. Supp. 2011-12) Ch. 17, Secs. 3,
5d.
6 Wayne LaFave, Search and Seizure §11.5 (4th ed. 2004) Ch. 17, Sec. 6f.
97