SEARCH + SEIZURE ANALYSIS

OVERARCHING ANALYSIS STEPS:

1. Can Δ contest the search?
2. Is Δ a person protected by the 4A?
3. Is the evidence related to a person, house, paper, or effect?
4. Did the police conduct a search or seizure?
a. SEARCH: A search occurs if either:
i. Katz reasonable expectation of privacy test is satisfied if there is a government intrusion upon a person who
has:
1. A subjective expectation of privacy, AND
2. That expectation of privacy is one that society is prepared to recognize as reasonable
ii. OR
iii. Jones trespassory/physical intrusion search test is satisfied:
1. A “trespass”/physical intrusion occurs,
2. The trespass/physical intrusion is upon an area enumerated in the Fourth Amendment (“persons,
houses, papers, or effects”), AND
3. It occurs with the intent “to find something or to obtain information”
b. Is it a search?
i. No REP in information exposed to the public.
ii. No REP in information exposed to third parties unless vast amounts of data like GPS or CSLI.
iii. Perception may be enhanced by commonly used devices.
iv. As long as officer has a right to be where they are.
v. Investigative technique will only reveal contraband.
vi. Must involve state action; doesn’t apply to private citizen who is not acting as an agent.
c. SEIZURE:
d. What can be seized?
i. Evidence of a crime;
ii. Contraband, fruits of the crime, or other items illegally possessed;
iii. Property designed for use, intended for use, or used in committing a crime; or
iv. A person to be arrested or a person who is unlawfully restrained

5. Was the search or seizure reasonable or unreasonable?

6. Must the evidence be excluded?
7. If so, is there other evidence that must be excluded?

1. PROTECTION SOURCE: FOURTH AMENDMENT

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
- Incorporated against the states in Mapp v. Ohio

2. WHAT IS AN UNLAWFUL WARRANTLESS SEARCH?

a. A person's right to privacy against unreasonable search and seizure is protected when (1) they have a subjective
expectation of privacy (i.e. believes they are alone) and (2) that society is prepared to accept as reasonable. (REP) →
Katz v. United States, overturning Olmstead v. United States’ holding that a search requires a physical trespass
b. The warrantless placement of a GPS tracking device on the undercarriage of an individual’s vehicle in order to track
the person’s movements on public streets → United States v. Jones
c. Law enforcement's use of sense-enhancing technology to see details of a private home that would not be discoverable
without physically entering the home → Kyllo v. United States
d. Compelling wireless carriers to turn over data that tracks users’ movements for long periods of time → Carpenter v.
United States
e. A police officer prolonging a routine traffic stop to have a drug-sniffing dog walk around the vehicle → Rodriguez v.
United States
 f. Using a drug-sniffing dog on a homeowner's porch to investigate the contents of the home → Florida v. Jardines

3. WHAT IS A LAWFUL WARRANTLESS SEARCH?

a. Warrantless search of outdoor areas not included in the curtilage of a home → Hester v. United States
b. A field may be entered and searched without probable cause or a warrant → Oliver v. United States
c. The area outside the curtilage of the home → United States v. Dunn
i. CURTILAGE TEST:
1. Closeness of area to home;
2. Whether the area is inside the home's fence/enclosure;
3. The way the area is used;
4. Owner's effort to block the area from public view
d. Observation of an enclosed area within the curtilage of a home from an airplane at an altitude of 1,000 feet →
California v. Ciraolo
i. What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th Amend
protection
e. Aerial observation of an area within the curtilage of a home from a helicopter at an altitude of 400 feet → Florida v.
Riley
f. Search of trash left outside on the curb/things you discard → California v. Greenwood
g. Monitoring the signals of a beeper to track the movements of a car → United States v. Knotts
h. Inspection of bank records → United States v. Miller
i. Information that the person voluntarily turns over to third parties (phone records) → Smith v. Maryland
j. A canine sniff of closed luggage → United States v. Place
k. A canine sniff test during a routine traffic stop → Illinois v. Caballes

4. PROBABLE CAUSE
5. WHAT INFORMATION MUST BE INCLUDED IN THE WARRANT APPLICATION?
a. Must specifically describe the person or property to be searched or seized or incorporate supporting documents with
those descriptions → Groh v. Ramirez
b. A warrant must be issued by a neutral and detached magistrate, based upon probable cause, supported by an oath or
affirmation, and it must describe the place to be searched and the person or thing to be seized → Lo-Ji Sales v. New
York
c. FRCrP 41- warrant requirements
i. The magistrate judge or a judge of a state court of record must issue the warrant to an officer authorized to execute
it.
ii. Warrants must identify the person or property to be searched, identify any person or property to be seized, and
designate the magistrate judge to whom it must be returned. The warrant must command the officer to:
1. Execute the warrant within a specified time no longer than 14 days;
2. Execute the warrant during the daytime, unless the judge for good cause expressly authorizes execution at
another time; and
3. Return the warrant to the magistrate judge designated in the warrant.

6. WHAT FORM MUST THE WARRANT TAKE TO BE VALID?

a. Must detail with specificity that which is to be searched or seized
i. The addition of a catchall phrase to a list of items to be searched for and seized in a warrant does not violate the
Fourth Amendment’s specificity requirement so long as it is limited by the language of the warrant to items
relating to a specific crime → Andreson v. Maryland
b. The Fourth Amendment does not require that the conditions triggering execution of an anticipatory warrant be set forth in
the warrant. For a conditioned anticipatory warrant to comply with the Fourth Amendment's requirement of probable
cause, two requisites of probability must be satisfied: United States v. Grubbs
i. It must be true not only that if the triggering condition occurs "there is a fair probability that contraband or evidence
of a crime will be found in a particular place"
 ii. But also that there is probable cause to believe the triggering condition will occur

7. WHAT ARE THE REQUIREMENTS POLICE MUST FOLLOW IN EXECUTING THE WARRANT?
a. How May Police Treat Those Who Are Present When a Warrant Is Being Executed?
i. FRCrP 41: The warrant must command the officer to "execute the warrant during the daytime, unless the judge for
good cause expressly authorizes execution at another time." Defines daytime as 6am-10pm.
1. BUT, no special showing of need necessary to authorize night search for narcotics 21 U.S.C. §879
ii. When there is a search of a residence, those present at the time of the search may be detained. Allowing this
detention serves the purposes of preventing flight by the individual in case incriminating evidence is found,
minimizing the risk of harm to the police, and helping police complete the search in the event that questions
arise → Michigan v. Summers
1. BASIC RULE: Can detain persons present at the time of search
iii. Officers may detain innocent occupants of a home in which a search warrant is being executed for the
duration of the search. → Muehler v. Mena
1. An officer's questioning of a detainee about a matter unrelated to the alleged crimes covered in the search
warrant is not an unreasonable seizure under the Fourth Amendment.
2. Applied Michigan v. Summers rule
3. BASIC RULE: Can detain, handcuff, and interrogate persons present at the time of search
iv. Police conducting a valid search of a home may not detain a person for the sole purpose of preventing him from
interfering in the search if he is outside the immediate vicinity of the home. Declined to apply Mena/Summers rule
to outside the immediate vicinity of the home → United States v. Bailey
1. “Immediate Vicinity” Factors:
a. Lawful limits of property
b. Within sight
c. Ease of reentry
b. Do Police Have to Knock and Announce Before Searching a Dwelling?
i. Absent exigent circumstances, the police must knock and announce their presence before entering a residence to
execute a search warrant
ii. Wilson v. Arkansas →The knock and announce principle must be factored into the reasonableness inquiry
under the Fourth Amendment. But, not a categorical rule. Exceptions:
1. Circumstances presenting threat of physical violence
2. When a prisoner escapes and retreats to his dwelling
3. When police have reason to believe evidence may be destroyed if advance notice were given
iii. Police entering a home must knock and announce their identity and purpose before attempting forcible entry,
unless exigent circumstances exist and to do so would undermine law enforcement interest. Declined to apply
a blanket exception to the knock and announce requirement for felony drug cases, which WI had as a law →
Richards v. Wisconsin
iv. In the absence of exigent circumstances, after announcing their presence in the execution of a search warrant,
law enforcement must wait until the occupant has had a reasonable amount of time to get to the door.
However, exigent circumstances may exist for forced entry after a given amount of time. (i.e. they had reason
to believe waiting longer would give Δs opportunity to destroy evidence) → United States v. Banks
v. The exclusionary rule does not apply to evidence gained after police violate the knock and announce
requirement→ Hudson v. Michigan
c. What If There Are Unforeseen Circumstances or Mistakes While Executing a Warrant?
i. A warrant’s legitimacy must be assessed in light of the information reasonably available to the officers and the
judge at the time of issuance. A search made under an otherwise valid warrant containing a mistake does not
violate the Fourth Amendment if the police acted reasonably → Maryland v. Garrison
ii. In executing a search warrant, law enforcement officials may take reasonable steps to ensure the search is
completed safely and efficiently. The test for validity under the Fourth Amendment is whether the officers’
 actions were objectively reasonable. Unreasonable actions = excessive force, restraints causing pain or imposed
for a prolonged period of time→ Los Angeles Cnty. v. Rettele
1. BASIC RULE: When officers execute a valid warrant and act in a reasonable manner to protect themselves
from harm (like the possibility of Δ sleeping with a gun), there’s no 4th Amendment violation
8. WHEN IS A WARRANT (NOT) REQUIRED?
a. Warrantless searches are per se unreasonable, but there are exceptions
b. Exigent Circumstances → An emergency situation justifying warrantless activity, with probable cause. Exception lasts
only as long as the “exigency”
i. Declined to apply a blanket warrant exception to murder scenes → Mincey v. Arizona
ii. Hot Pursuit
1. EXCEPTION: The Fourth Amendment permits officers in hot pursuit of a fleeing felon to enter a
home, into which the suspect had fled, and search the home without a warrant → Warden v. Hayden
2. LIMIT: Police cannot enter a home without a warrant to make a routine arrest → Payton v. New York
3. LIMIT: Absent exigent circumstances, police cannot enter a home without a warrant in pursuit of a
fleeing misdemeanant. Exigent circumstances are determined on a case-by-case basis and include, but
are not limited to, situations in which police need to immediately follow a suspect into a home→ Lange
v. California
a. To prevent destruction of evidence;
b. To prevent imminent violence;
c. To prevent the suspect from fleeing the home; or
d. In hot pursuit of a fleeing felon.
BASIC RULE: The hot-pursuit exception does not apply to fleeing misdemeanants.
iii. Safety
1. Police may enter a home without a warrant if there is an objectively reasonable basis for believing an
occupant is injured or in immediate danger → Brigham City, Utah v. Stuart
iv. Preventing Destruction of Evidence
1. The exigent circumstances exception justifies a warrantless search when the conduct of the police
preceding the exigency is reasonable in the same sense. When the police did not create the 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 allowed → Kentucky v. King
a. BASIC RULE: Exigent circumstances exception applies when police do not gain entry to the premises
by means of actual or threatened violation of the Fourth Amendment
v. Limits on Exigent Circumstances
c. Plain View
i. Plain View Doctrine→ Coolidge v. NH
1. First, police may search the area in the possession or under the control of a person arrested incident to that
lawful arrest. The search must be contemporaneous with the arrest and limited to the “immediate vicinity.”
2. Next, a police officer may search an automobile if he stopped the car on the highway and had probable cause
to believe the car had contraband concealed inside.
3. Lastly, the plain-view doctrine allows police who are somewhere they are lawfully permitted to be to
legitimately seize inadvertently found evidence of another crime, which comes within plain view.
a. This is true whether the officer is in “hot pursuit” of a suspect, conducting a search incident to arrest,
or otherwise in a lawful vantage. The invasion of privacy must have been authorized on other grounds.
b. The doctrine only applies to evidence found inadvertently and will not justify seizure of evidence
police expected to be found in advance.
c. The Warrant Clause requires probable cause and specificity about the persons or property to be
searched or seized to protect against unnecessary government intrusions. If the plain-view doctrine
applies, the intrusion has already occurred. The accidental discovery of evidence does not turn a
legitimate search into a general one.
d. The substantial benefit to law enforcement outweighs the relatively small threat to privacy. Requiring
police to obtain a warrant for accidentally found evidence would be unduly burdensome.
d. Automobile Exception
i. Exception + Rationale
1. Developed in 1925 in Carroll v. U.S.
a. Exigency is the car’s mobility
b. Must have probable cause to believe contraband or evidence of the crime in the automobile
c. Includes search of entire vehicle (including trunk)
2. Scope
a. Covers motorhomes California v. Carney
b. Cover cars no longer mobile Chambers v. Maroney
c. Covers parked cars
d. Does NOT cover parked vehicles on the home driveway that is within the curtilage of the house
Collins v. Virginia
ii. Searches of Containers in Automobiles
1. U.S. v. Chadwick→ Police had probable cause but no warrant to search footlocker– need warrant unless
exigent circumstances (like a bomb)
a. Arkansas v. Sanders→ Need warrant to search container places in trunk of a taxi– had probable
cause for container but not for the taxi
b. U.S. v. Ross→ If probable cause for the car, no warrant necessary to search a container found in the
car
2. California v. Acevedo→ The Fourth Amendment permits warrantless searches of containers found in
automobiles provided the police have probable cause that the container contains contraband.
a. If police have probable cause to search the car, they can search containers and entire car
i. Provided they have probable cause to believe the container could hold the evidence sought
b. Overturned Arkansas v. Sanders
3. Searching a passenger’s property→ also covered by automobile exception (Wyoming v. Houghton)
a. Ownership is not determinative
4. SUMMARY: If probable cause that contraband is in the car, police can search the entire vehicle where the
contraband could be hidden (including containers/trunk)
iii. Searches Incident to Arrest of Automobile
1. New York v. Belton SEE SLIDES
2. What if you are arrested outside of a car?
a. Thornton v. U.S. → Belton rule applies to “recent occupants” of car
3. Arizona v. Gant
a. Backed away from Belton rule
b. Search of passenger compartment permitted IF:
i. Arrestee, unsecured and within reach of car (Chimel)
ii. OR
iii. Reason to believe evidence of crime arrest in car (Scalia theory from Thornton)
e. Searches Incident to Arrest
i. Person
1. Rationale
a. Protects officer safety
b. Safeguards from destruction of evidence
2. Allows search of person and “grab” area
a. Person
b. Containers on person
c. Per se rule no matter what kind of crime
d. For weapons and evidence
3. Incident to a lawful arrest, a warrantless search of the area in possession and control of the person under
arrest is permissible under the Fourth Amendment→ Chimel v. California
 a. Searching the entire house after arresting someone at their house is unreasonable. Only area within
possession and control of the person being arrest can be searched without a warrant or
exception/exigent circumstances
b. Trying to draw a line between what police should be able to do to protect themselves/evidence and not
allowing them to do a general search of the entire home
4. What is a “grab” area?
a. At time of arrest, not search
b. Can be a stretch
c. Can follow Δ into different rooms
d. Flexible timing
5. Standard
a. Only grab area or where they may locate Δ can be searched
b. Need not show actual threat of danger or destruction of evidence (U.S. v. Robinson)
c. Must be a lawful arrest
6. Does the exception apply even when its rationale does not?
a. Yes→ Robinson
i. Search incident to arrest applies even to arrests for expiration of driver’s licenses
ii. Can search person and grab area
7. Must actually be an ARREST
a. The “search incident to arrest” exception to the Fourth Amendment does not authorize the full
search of a car after the issuance of a citation → Knowles v. Iowa
b. BRIGHT LINE RULE
ii. Cell Phones
1. Under the Fourth Amendment, the government may not conduct a warrantless search of the contents of
a cell phone seized incident to an arrest absent exigent circumstances→ Riley v. California
a. Exigent circumstances = kidnapping, detonating a bomb, etc.
f. Inventory Searches
i. If property is lawfully in possession of the police, they may inventory the contents to protect the owner’s property
while it’s in police possession
ii. South Dakota v. Opperman
1. Police may conduct an inventory search of the contents of a vehicle lawfully held in police possession.
a. Vehicles are “effects” for purposes of the Fourth Amendment. Automobiles do not carry the same
expectation of privacy as a home or office, because automobiles are subject to heavy governmental
regulation and travel by car is inherently public. Police as caretakers may legitimately take possession
of an illegally parked vehicle and may inventory the contents of the vehicle once impounded.
b. Purpose/rationale
i. Protects the vehicle owner’s property
ii. Protects police against false claims of damage or loss of property
iii. Protects police from harm.
c. The probable cause and warrant requirements of the Fourth Amendment are inapplicable to
noncriminal inventory searches of vehicles lawfully in police custody. Cady v. Dombrowski, and other
cases have repeatedly affirmed the right of police to perform inventory searches on impounded
vehicles without a warrant in order to secure the vehicles’ contents.
2. Okay if routine, but must be pursuant to a policy of the police department
iii. Illinois v. Lafayette
1. Applies to arrested persons and their belongings
2. Must be part of standard procedure of police department
iv. Main point
1. All about being routine and standard procedure that every officer performs
2. Takes away discretion from officer
a. If policy leaves it to discretion of officer, need objective reasons enumerated in policy, no blanket
language leaving the decision entirely to officer choice
g. Protective Sweeps
 i. When the police arrest a person, they may conduct a protective sweep of the premises if they have reasonable
suspicion that a person might be there that poses a threat to them
ii. Maryland v. Buie
1. Incident to an arrest, the police may conduct a protective sweep of a premises based on reasonable suspicion
that other people who pose a threat are in the building, provided the search is limited to those areas where a
person may be hiding.
a. Incident to a lawful arrest, and without probable cause or even reasonable suspicion, the police may
search areas of the premises immediately adjoining the place of arrest where someone posing a risk to
the police could be hiding.
b. A more extensive search is permissible only when there is reasonable suspicion based on articulable
facts.
c. Michigan v. Long→ Officers can do a protective sweep of a passenger compartment with
reasonable suspicion of danger
iii. A search is permissible without a warrant or even probable cause if there is voluntary consent
1. Schneckloth v. Bustamonte
a. The court must look at the totality of the circumstances in order to determine whether consent to a
warrantless search absent probable cause was freely and voluntarily given.
i. Although knowledge of the right to refuse to give consent is one factor of many to consider, it
is not a prerequisite to proving that consent was given voluntarily.
ii. The totality of circumstances surrounding the consent must be analyzed to determine if
consent to search was voluntarily given without police coercion.
iii. If no presumption arises that the questioning is inherently coercive, then no knowledge of the
right to refuse is necessary.
iv. The prosecution need not prove that the person giving consent knew of his right to refuse.
b. Reaffirmed in:
i. Ohio v. Robinette→ A person lawfully stopped by the police, but free to leave, does not
need to be informed by the police of their ability to leave
ii. US v. Drayton→ The police may request consent to search a person, even if they have no
basis for suspecting that individual of illegal activity, and the citizen is not subject to a
Fourth Amendment seizure if a reasonable person would feel that he is free to leave.
(Totality of the circumstances)
h. Consent
i. US v. Matlock→ One occupant of a residence may give consent if the other is not present
ii. Georgia v. Randolph→ The police may not enter a home without a warrant to search for evidence where they
obtain consent from an occupant but a co-occupant is present and objects to the search.
1. Co-occupants can generally give consent→ actual and apparent authority
2. In Matlock, the primary assumptions at issue involved the equal authority of all of the occupants and the
assumption of risk when living with others.
a. Here, the primary assumptions again include the equal authority of all of the occupants but also
assumptions about how people act in light of this equal authority: a guest is unlikely to enter when
invited by one occupant but expressly told to stay away by another.
3. Furthermore, Minnesota v. Olson holds that an overnight guest has a reasonable expectation of privacy in the
house in which he is staying because his host is unlikely to invite someone into the home over his objection.
This Fourth Amendment right easily transfers to co-inhabitants when they are present and expressly objecting
to someone’s entry. In such situations, one occupant has no authority over the other to demand a resolution in
his own favor.
a. Therefore, when one occupant who is present expressly objects to a police search, the consent of
another occupant actually provides no additional authority to the police to enter absent a warrant or
exigent circumstances.
iii. Georgia v. Randolph was limited by Fernandez v. California
1. One occupant’s consent to search a premises is effective under the Fourth Amendment as long as no other
occupant who objects to the search is physically present.
i. Searches When There Are “Special Needs”
i. “Special Needs”
1. Suspicionless, warrantless searches permitted to further legitimate governmental needs
2. Not primarily for criminal investigative purposes
3. But for other legitimate governmental needs:
a. Health and safety, borders and checkpoints, schools, government employees, jails and prisons, parolees
and probationers, inventory searches are closely aligned
b. Can result in a criminal prosecution
4. Conducted by other public officers, usually not by law enforcement
5. No individualized suspicion required
ii. Administrative Searches
1. Camara v. Municipal Court of City and County of San Francisco
a. Search by inspector of the Division of Housing Inspection, occupant said he needed a warrant
b. Court held that administrative searches of this nature are significant intrusions
c. Companion case→ See v. City of Seattle, applied holding to nonresidential commercial property
2. New York v. Burger
a. Junkyards subject to certain regulations, have to have license and keep thorough records for search at
any time
i. Δ didn’t have license or records, police found stolen property
ii. Purpose for regulations was bc NY was having issues with selling stolen car parts
b. RULE→ Warrantless searches of businesses operating in heavily regulated industries are reasonable
under certain conditions.
i. The inspection program must serve a substantial governmental interest.
ii. The inspections must be necessary to serve that interest.
iii. The authorizing statute must serve as a substitute for a warrant.
1. This means that the statute must provide notice to business owners of the scope of the
inspection scheme and specifically limit the authority of inspectors.
3. City of Los Angeles v. Patel
a. The warrantless search of hotel records for general inspection purposes does not fall under the
administrative-search exception to the warrant requirement of the Fourth Amendment.
b. This Court held in Camara v. Municipal Court that business owners cannot be subject to this choice of
compliance or criminal charges without a precompliance review.
i. An owner must be afforded the opportunity to have an officer’s demand reviewed by a neutral
authority before the owner may be penalized for failure to comply.
ii. This requirement likely could be satisfied by the officer obtaining an administrative subpoena
without requiring probable cause. If the owner objects, an administrative judge could decide
the matter.
4. Hypos
a. Child prn
i. 1st paragraph: Not a problem, alone in the house, has an arrest warrant
ii. 2nd: Okay, beyond grab is okay, rationale is protective sweep
iii. 3rd: Not okay, didn’t have a search warrant
b. Border
i. Search was constitutional if government is able to establish Klein had reasonable suspicion to
do a body cavity search
c. Border w/ child prn
i.
iii. Border Crossing
1. Chief executive (pres) has plenary power to protect nation’s borders
2. Suspicionless, warrantless searches permitted
3. Customs officials have more than law enforcement role- also protect country from harm- disease, narcotics,
explosives
4. Applies to physical borders, fixed checkpoints, and customs at airports
 iv. Checkpoints
v. Schools
1. School searches: reduced 4th Amendment rights for students
2. TLO v. New Jersey
a. 4th amendment applies to both civil and criminal authorities
b. Greater government need to protect students vs. less privacy for students
c. Individualized searches: only need reasonable suspicion, not probable cause
i. I.e. backpacks
3. Safford Unified School District #1 v. Redding
a. Searched bra and underwear of student for ibuprofen
b. RULE: Under the Fourth Amendment, a school official cannot strip search a student without a specific
suspicion that the student is hiding evidence in intimate places
vi. Government Employment
1. City of Ontario v. Quon
a. Searched police officer’s pager bc he continually went over allotted amount of messages, found
sexually explicit messages and few related to work
b. RULE: A government employer’s intrusion on an employee’s reasonable expectation of privacy does
not violate the Fourth Amendment if it was for non investigatory, work-related purposes and
reasonable under the circumstances.
vii. Drug Testing
1. Vernonia School District 47J v. Acton
a. Students participating in athletic programs may be drug tested without a warrant or suspicion.
2. Board of Education of Independent School Dist. No. 92 of Pottawatomie Cnty. v. Earls
a. Students who participate in extracurricular activities may be subjected to drug testing without a
warrant or individualized suspicion.
3. Ferguson v. City of Charleston
a. A state hospital may not drug test pregnant women without a warrant or informed consent for law
enforcement purposes under the Fourth Amendment.
viii. Searches in Jails and Prisons
1. Florence v. Board of Chosen Freeholders of the County of Burlington (2012)
a. Government interests
i. Diseases
ii. Gangs
iii. Contraband
b. Broad exception permitting strip searches of all detainees without a warrant or even suspicion
regardless of charge
ix. DNA testing of those arrested
1. Maryland v. King (2013)
a. Took DNA sample of arrestee
i. May the police take DNA from those arrested for the purpose of investigating crimes other
than the one for which the person was arrested?
b. Legitimate government interest in the need for law enforcement in a safe and accurate way to process
and identify the persons and possessions they must take into custody
i. Balance
1. Intrusion on right of privacy
a. Limited use of information
b. Mere swab of mouth
c. Limited loci
2. Gov need for search (legitimate gov interests)
3. Establishing identity
a. Danger?
b. Right person?
c. Solving cases?
2. United States v. Knights (2001)
 a. On probation
b. Reasonable suspicion sufficient, No warrant required
c. As a probationer, he is deprived of some freedoms
d. Purpose of order was to rehabilitate defendant while protecting the public
3. Samson v. California (2006)
a. On parole
b. Must submit to search at any time with or without cause
i. Court says ok
1. No suspicion needed
2. Need to know suspect on parole
3. One step short of a prisoner on continuum of state-imposed punishments

j. Arrests and seizures: Three topics

i. Arrest (lengthy seizure) = No longer free to leave
1. United States v. Watson (1976)
a. Legality of a warrantless arrest and of an ensuing search of arrestee’s car carried out with his purported
consent
b. Should they have gotten a warrant?
i. Federal law gave them the ability to do as long as had probable cause
ii. Officer with probable cause does not have to have warrant if going to arrest someone in
public (not in his house)
iii. Must have probable cause
2. Public arrest – Watson
a. Do not require warrant
b. Any felony
c. Misdemeanors witnessed by officers
d. Arrest in home
3. Require warrant (Payton) or exception (ex: hot pursuit (Warden v. Hayden))
4. What protects citizens from improper warrantless arrests?
a. Riverside v. McLaughlin
i. Must present complaint to judge within 48 hours of arrest (absent extraordinary
circumstances)
ii. Judge conducts “Gerstein” review – probable cause determination when person arrested
without a warrant
5. Alternative to arrest?
a. Summons or citation
i. Provided for by a statute
ii. Only certain crimes or circumstances are eligible
iii. Non-custodial
iv. Notice of appearance
1. Failure to appear can lead to a custodial arrest
6. When is a person seized
a. United States v. Mendenhall (1980)
i. Says that a person is seized if a reasonable person under the circumstances would believe that
he or she was not free to leave
ii. A person has been seized within the meaning of the 14th amendment only if, in view of all the
circumstances surrounding the incident, a reasonable person would have believed that he was
not free to leave
1. Test for existence of a show of authority is objective
a. Not a seizure but a consensual encounter
b. Suspicionless
c. Reasonable person feels free to leave?
2. Objective standard
a. Consider multiple factors
 i. Multiple officers
ii. Weapons
iii. Touching
iv. Tone of voice, etc.
3. Need NOT be told of right to leave
7. What crimes can police arrest for?
a. Atwater v. City of Lago Vista
i. Arrests are allowed for misdemeanors, doesn’t matter if only punishable by fine
ii. Subjective intent of officer irrelevant
b. Virginia v. Moore
i. A state law prohibiting an arrest is irrelevant; so long as there is probable cause an arrest is
permissible
ii. Consensual encounters (NOT seizures) = Free to leave at will
1. California v. Hodari
a. Police chase did NOT constitute a seizure
b. Need some type of physical restraint, even if unsuccessful, OR
i. Submission to authority, not just a show of authority
c. Δ was not yet restrained when drugs were discarded
2. Torres v. Madrid
a. Seizure occurs when physical force is applied to a person with the intent to restrain that person, even if
unsuccessful
b. The arrest lasts only as long as the physical restraint- could be fleeting where the person does not
submit
c. Not the same as a “show of authority”, which must be successful
iii. Terry stops (temporary detentions) = Brief investigatory purpose
1. Before Terry, police needed:
a. Probable cause; and
b. Individualized suspicion
2. After Terry, police could:
a. Conduct a brief, non consensual encounter
b. Based upon observations and experience of officer
c. A new standard – reasonable suspicion
3. RULE: When an officer observes unusual conduct that reasonably leads him to assume that criminal activity
is afoot and that the people he is interacting with are armed, the police officer may conduct a limited search
for weapons.
a. Requires a lesser standard of reasonable suspicion, not probable cause, to conclude from observations
and experience that criminal activity may be afoot and may be armed and presently dangerous
i. Specific and articulable facts (more than a hunch)
ii. Only pat down for weapons allowed (need suspicion of danger)
b. Not concerned with officer’s subjective intent, concerned with what led the officer to make the
detention/stop
i. Objective, specific, articulable facts combined with experience and inferences of officer
c. Opportunity for the police to interact (non-consensual) to conduct probable-cause interview
d. The frisk→ NOT a search, only for weapons
i. The officer has some reason to believe the person may be armed, then they can frisk
e. ANALYSIS:
i. STOP: Does the officer have reasonable suspicion to make the stop/detention?
ii. FRISK: Does the officer have reasonable suspicion the person is armed?
4. Implications of Terry
a. 4th Amendment is not all or nothing
b. Deference to law enforcement
c. Allows for abuses
d. How do police decide to stop?
e. Can be regulated by state law
 5. Significance of Terry and reasonable suspicion
a. Departure from the warrant requirement based upon probable cause
b. A balancing test between the interests of the state and intrusion upon the individual
c. Introduction of a new standard = reasonable suspicion, to support protective sweeps, searches of
students, and public employees
d. In some instances, no longer requires individualized suspicion– border searches, checkpoints
e. A means of adapting 4th Amendment protections to the realities of policing today or a surrender of
protections for the ordinary citizen
6. Actions during Terry stops

Proper Actions Improper Actions

Pat down suspect Full search for evidence

Ask for ID Search of ares outside of Δ’s access

Look inside area of car that is accessible to Δ Lengthy detention

Protective sweep of house Involuntarily taking suspects to station house

7. A stop or an arrest?
a. Dunaway v. NY→ Station house detention = arrest
b. Florida v. Royer→ removal from public to private office = arrest
c. Hayes v. Florida→ Station house fingerprinting = arrest
d. U.S. v. Place→ 90 minute detention of luggage = arrest
e. U.S. v. Sharpe→ 30-40 min wait for DEA agent = stop, but there is a limit
8. Hiibel v. Sixth Judicial District of Nevada (2004)
a. RULES re stops:
i. Police officers can ask for ID
ii. Limited intrusion of suspect
iii. Reasonably related to purpose of the Terry stop
k. Terry and Reasonable Suspicion
i. No bright line rule for what reasonable suspicion is, and court hasn’t defined- just in certain contexts
ii. Generally
1. United States v. Arvizu
a. RULE: An officer may stop a car if there is reasonable suspicion of criminal activity based upon all of
the relevant facts and circumstances. Assessing reasonableness under the Fourth Amendment requires
balancing an individual’s privacy interests against the achievement of legitimate government needs.
i. Relevant facts: at shift change, taking back roads to avoid checkpoints, roads known for drug
trafficking, kids knees high, weird waiving from kids
iii. Stopping a Car
1. Kansas v. Glover
a. RULE: Reasonable suspicion can be based on reasonable inferences drawn from known facts.
i. General principles of reasonable suspicion:
1. Particularized and objective basis
2. More than a hunch but “considerably less than preponderance”
3. Common sense and officer experience
4. Perfection is not required
iv. Based on Informant’s Tips
1. Alabama v. White
a. RULE: To determine whether an informant’s tip provides reasonable suspicion, the totality of the
circumstances must be analyzed, with attention given to the veracity, reliability, and basis of
knowledge of an informant.
 i. Court put emphasis on knowledge tipper would have to have to know Δ’s itinerary = more
reliable
2. Florida v. J.L.
a. RULE: An anonymous tip that a person may be carrying a gun does not justify a stop and frisk under
the Fourth Amendment unless there is additional corroboration to ensure that the tip has "sufficient
indicia of reliability" to create reasonable suspicion justifying a stop.
3. Navarette v. California
a. RULE: An anonymous tip of reckless driving can support the reasonable suspicion necessary for a
traffic stop if the tip is accompanied by adequate indicia of reliability.
v. Based on a Person’s Avoidance of Police
1. Illinois v. Wardlow
a. RULE: A police officer may stop and frisk a citizen on the street when he has reasonable suspicion that
the person is armed and may pose a threat to the officer.
i. Presence in a high crime area and flight can be enough for reasonable suspicion for stop
1. Flight PLUS high crime area could = RS, but disagree on whether that happened here
vi. Based on Profiles
1. United States v. Sokolow
a. RULE: The fact that an individual fits the profile of a drug courier does give rise to reasonable
suspicion justifying a Terry stop.