Criminal procedure are the rules that shape how police, lawyers, and judges within the criminal system are to act. Primarily, our discussion will fall onto the behavior of police.

There are three overarching themes:

  1. Questions about state power and authority. Where does the state get its authority and what are the tools given to the police?
  2. Balancing concerns between criminal accountability and systematic fairness. This principle can be seen well in the Meares article cited below.
  3. Finally, where do the criminal procedure rules come from? Clearly we have the Constitution (4th, 5th, and 6th Amendments), Supreme Court Opinions, other courts, statutes and city codes, formal manual, and informal policies.

Police as Providers of Service – Community Caretakers

The police are meant to “protect and serve.” This goal has the natural consequence of police efforts to provide service outside of enforcing the law. For instance, Oregon’s statute authorizes police to perform “community caretaking functions.”

Caniglia v. Strom

The key distinction in Cady was that the seizure of a weapon for a caretaking responsibility occurred at a traffic stop, not within a home. There is no broad category of caretaking that can justify this fourth amendment violation.

The difficulty here is deciding what is potentially a caretaking responsibility and what is a criminal enforcement. For instance, a police officer may initially provide service (rushing into a home to provide medical aid) and discover the makings of a crime.

There are a variety of tests to determine when the officer is being a community caretaker. An example of one is 1) facts that show a citizen must be in peril, 2) the officer can render assistance to the citizen is in need of aid, 3) after the citizen no longer needs aid, must obtain a warrant for any additional searches.

See the problems from State v. Dube (improper living conditions), Commonwealth v. Livingstone (stopped car by train tracks).

Policing Theories – Community Policing

Community policing refers to the community setting police programs for the police to become involved with the community (through city council meetings) such as neighborhood watch, youth athletic programs, etc.

Seth W. Stoughton, Principled Policing: Warrior Cops And Guardian Officers

51 Wake Forest L. Rev. 611 (2016).

There are two types of officers: warrior and guardian.

Officers strive to meet a warrior ideal, to perform the job with honor, duty, resolve, and righteous violence. However, this resolve can cause issues when an officer demands respect (for their safety), a citizen sees the demand as arrogant and resists, and the disagreement begins to escalate.

The author then proposes a new ideal, to create a guardian culture. A guardian culture takes the same traits as a warrior and adds “respect for human dignity, empathy, patience, inclusivity, and introspection. The goal is to work with the community seeking consent rather than compulsion in policing efforts.

Tracey L. Meares, Norms, Legitimacy, and Law Enforcement

79 Or. L. Rev. 391 (2000).

A main way of fighting crime is to remove the crime from the scene. However, sometimes those people play key roles to society and without them society will falter, thus leading to more crime.

Community policing provides social organization (dettering crime) and provides legitimacy in police efforts because the community and the police are working together. In other words, problem solving and community policing (working together with the community) will lead to increased legitimacy and trust in the system.

Criminal Models

Herbert L. Packer, Two Models of the Criminal Process

113 U. Pa. L. Rev. 1 (1964).

The two models employed within police agencies are the crime control and the due process models.

The crime control model focuses on controlling the crime in as efficient a manner as possible. The ultimate goal: finality of a case, typically in the form of a guilty plea. In other words, this approach seeks to focus on informal processes and minimizing the role of the judiciary. The number of convictions is the tool of measuring success.

The due process control is more willing to sacrifice efficiency for getting the right answer. Take your time, make sure that the investigation work is totally done so that the innocent are definitely innocent and the guilty are definitely guilty. The ultimate goal: fairness. Success is measured by increased public perception.

Brief Searches and Seizures

Searches and Seizures

Put simply, a seize is when an officer restricts the movements of an individual and a search is to intrude on the privacy of the individual to obtain information. The Fourth Amendment protects against unreasonable searches and seizures without a warrant.


Katz v. United States

Previously, the Fourth Amendment was interpreted to only protect an individual within a certain location and penetration of that location. Olmstead, 277 U.S. 438 (1928). That is why the government and Katz arguments mostly focused on whether the phone booth was public or private.

Here, however, the Court emphasizes that at the Amendment protects people, not places. As such, if the person expects privacy when the enter into an area, then they should be afforded that privacy. The fact that the officers limited their actions has no bearing on this case because those were exercises of self-restraint, not judicial-restraint.

The concurrence establishes the reasonable expectation of privacy. This test is what is utilized today.

Alternatively, the dissent focuses on how the language of the Constitution protects places, and this case is an example of the Court reading text into the Constitution. Nothing in the Constitution protects against eavesdropping (a practice that existed at the founding), and wiretapping is a modern version of eavesdropping.

The reasonable expectation of privacy test has both a subjective and objective component. The targeted individual of the search must expect privacy (subjective), and that expectation must be deemed reasonable by society (objective).

United States v. Jones

The Fourth Amendment protects people and places. If this action was committed in the 1800s, this would have been considered a trespass. For these reasons, secretly attaching a GPS would be unreasonable.

The concurrence however thinks that the Katz concurrence test should be applied. That is, what is the respondant’s reasonable expectation of privacy? The conclusion is the same, but it still allows for short-term searches or potentially long-term searches for intense crimes.

This case sets forth the trespass test. Did the search physically intrude on the target’s protected interests (person, house, etc.) with the intent to obtain information.

State v. Bobic

Bobic had several stolen car parts in a storage unit. The officers saw these parts in a hole in the wall. From these observations, they obtain a warrant, recover the goods, and charge Bobic with a crime.

Using Katz, the expectation of privacy test, this is not a search because the hole in the wall. Although he may expect privacy, this exception is unreasonable because observations could be made through the hole.

Under Jones, the trespass test, this is not a search. Nothing goes through the peep-hole, viewing occurred from an open area, etc.

This principle is called the plain view doctrine (also applies to smell and hearing). This can be used as a defense against an accusation that a search occurred. If the object is in plain view (use of senses without extraordinary means), observed from a place where the officer’s have a right to be, then the observations does not constitute a search. The plain view doctrine also applies to flyovers and garbage that is left to be collected (must be on the curb).

Bond v. United States

Bond was a passenger on a bus. The bus was stopped, border control boarded and checked passenger identification and luggage. The officer touched Bond’s bag, felt a brick like substance, obtained permission to look in the bag, and discovered illegal drugs. Was the initial touch a search?

Under Katz, this is a search because this was extraordinary manipulation of the bag. Touching a bag on a bus is normal, but too much equaled

Under Jones, this is a search because touching a bag is an extraordinary manner is trespass.


A seizure is when the officer interferes with an individual’s possessory interest in some property. Typically, this occurs in restricting the movement of an individual. A seizure typically takes one of three levels:

  1. A consensual conversation – no need to justify stopping to chat with the individual.
  2. Stop – must have “reasonable suspicion” also defined as “individualized or articulable suspicion.”
  3. An arrest – must have “probable cause.”

Most interactions involve consensual conversations or stops. The tricky part is knowing when one method of seizure turns into another.

United States v. Mendenhall

A person has been seized within the meaning of the Fourth 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.

A seizure occurs when a reasonable person would believe that the person is not free to leave. Note that this is an objective standard. A stop means that you have been restrained in some way. You have been restrained when you are no longer free to leave. Here there is no evidence to show compelled compliance (no threats, showing weapons, uniforms, etc.). This remains true even if the officer had the intention to detain anyways (as long as the other party didn’t know), and there was no need to tell the defendant that she can decline to participate.

This is an example of a consensual encounter.

Wilson v. State

Approaching Wilson, asking if he was ok, asking for his ID, and telling him to stay in the area (Wilson was leaving), and helping him cross the street (community caretaker) was not a stop because there was no indicator that Wilson was not free to leave. However, when the officer tells Wilson to “go to the corner and wait” this is a stop because this was an order that was complied and enforced by checking on him. In other words, he was not free to leave.

At this point, it was a stop. Because the stop occurred before a warrant or before there was a reasonable suspicion, the stop was unconstitutional.

Florida v. Bostick

Even you are not physically free to leave (the aisle is blocked), you are still verbally able to deny compliance. As such, it is not a stop.

Stops: Reasonable Suspicion

A stop may be constitutionally justified if there is a warrant. However, without a warrant, there must be either consent or exigent circumstances. These circumstances can be to refrain a suspect from fleeing or destroying evidence. However, more exceptions have arisen because of the frequency officers stop individuals. Thus, the need for a reason to stop.

Grounds for Stops: Reasonable Suspicion

Reasonable suspicion is an articulable set of facts that leads the officer to believe a suspect has or is about to commit a crime.

Reasonable suspicion is less than probable cause but more than a hunch. The best definition we have from Terry is that “Specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.”

State v. Theodore Nelson

The officer only observed Nelson drink one beer over the course of an hour, which would have put him under the legal limit. With no prior evidence showing that Nelson had more to drink, there was no reason for the stop (appearance was normal out of the car and driving was normal). This was just a hunch.

However, the dissent argues that on Christmas Eve and the tradition to have more than one drink on the holiday, it would be reasonable to assume that Nelson had more to drink. Thus, the trial court would have been right to allow the evidence. This outcome would be present with one additional reasonable inference.

State v. David Dean

Because of all the circumstances, this was a reasonable stop. Specifically, the time of day and the fact that the area was typically uninhabited lead to a reasonable suspicion. The fact that the area was a “high crime area” can serve as a factor (alone it is not enough to find reasonable suspicion). Combined with the other information is sufficient.

However, the dissent argues that simply wanting to see what the person in the parked vehicle was up to is not reasonable suspicion, but instead working on a hunch, or mere speculation contrary to the finding in Nelson.

Jamal Sizer v. State

According to the majority, because the robberies are disconnected from this group, they cannot be used in a totality of the circumstances analysis. However, there was a suspicion of a crime ongoing (open container laws and littering) and Sizer’s flight increased the suspicion necessary to produce the stop.

However, the dissent argues that the lack of connected crimes is significant. The fact that the defendant fled is not enough and the connection of crimes and suspicion needs to be present to support a stop.

According to Wardlow (a case relied on here), if there is a high crime area and flight, there is reasonable suspicion. However, that was not the case here because the crime approached for was not the reason for the high crime area.

Although there was no reasonable suspicion under Wardlow, there is reasonable suspicion because there was evidence of another crime and a flight.

Typically, the courts would take the phrase “high crime area” in addition to flight and automatically find reasonable suspicion (despite the court’s hesitancy in the present case). Our takeaway, Wardlow is the lowest standard the courts are willing to find reasonable suspicion.

Pretextual Stops

A pretextual stop is where the officers engage in a stop for one crime (where they have reasonable suspicion) to investigate a different crime (for which they have no reasonable suspicion).

People v. Frank Robinson

This case adopts the same holding as the U.S. Supreme Court in Whren v. United States. As long as the officers had reasonable cause for one stop, they are free to conduct the investigation of another crime. Simply asking whether an officer “would have” made the stop is too uncertain of a test to adopt.

As long as there is an objectively valid basis for the stop, a pretextual stop can be reasonable. However, First, there are limits, you cannot violate equal protection (cannot stop individuals for discriminatory purposes). Second, the scope of the search must be limited to the actual reason for the stop until additional evidence presents itself.

The alternative test is “would the reasonable officer make the stop?” However, the issue with this approach is that the subjective intent of the officer is difficult to ascertain.

Criminal Profiles and Race

A lot of departments will compile a list of individual characteristics that, when combined, will describe a person who is likely to commit a certain kind of crime. Using this profile may be a method utilized by officers to say they had reasonable suspicion.

Uriel Harris v. State

The stop is reasonable if:

it is based on the detaining officer’s ability to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.

A profile may be used to show that suspicion, but the profile must describe characteristics unique to the crime committer that does not match with the characteristics and activities of innocent individuals.

Here, the profile was too generic. In other words, innocent individuals may be subject to a search based on this profile. According to the court, “even in the eyes of a reasonable, prudent, and experienced police officer” there was no basis for reasonable suspicion.

According to Reid v. Georgia, if the factors describe too much innocent conduct, we are worried about random stops.

However, according to Quarles, innocent conduct could be considered as well, if there are additional facts that limit the number of innocent individuals who may be targeted by the profile.

Here, the court says that the facts here are more similar to Reid, so there is no reasonable suspicion.

The issue with using profiles is making sure that the profile is accurate can be difficult (no statistical evidence to back it up). Additionally, it can be difficult to ensure proper application (factors may be wrong or catch too many people).

Attorney General of Maryland Ending Discriminatory Profiling in Maryland, August 2015

Race should take no part in criminal profiling. If the officer is making a stop, then the officer should consider if they are making the stop because of the race of the individual. In other words, criminal enforcement should be colorblind. Crime is crime, no matter who commits it. Thus stops of a particular ethnicity because of a belief that the ethnicity is more likely to commit a crime is improper. Instead, officers can develop profiles based on “amount of luggage, method of ticket payment, or time of travel.”

If the officer is provided reliable information about a suspect’s particular trait, they are free to use that trait in limiting the field of possible suspects in an investigation. For instance, if an informant who has been reliable gives information about the race of a potential suspect, the officer’s can be confident that they are looking for a suspect of that race. Otherwise, race should not be considered in narrowing the investigative scope.

Coleman v. State

You can use race as an identifying factor as long as it is not the only identifying factor. Additionally, the factor needs to be provided by a reliable source.

Brief Searches


Terry v. Ohio

The defendant argued that this case should have been resolved based on probable cause. However, the state is saying that this is a dangerous job and if there is reasonable suspicion of a weapon, then they should be able to conduct a search to remove a weapon.

Holdings: This was a search and the reasonableness (rather than probable cause) standard will be applied (authorized by the Fourth Amendment). A frisk can only occur if there is a reasonable suspicion for the stop plus a reasonable suspicion of a weapon. The scope of this search is limited to those places where a weapon may be located.

In the present case, there was reasonable suspicion for the stop (based on the officer’s experience and the actions of the defendant). Additionally, there was reasonable suspicion of a weapon (based on how the suspected crime often involves a weapon). Finally, the scope here was limited to the suspect’s outer clothing and any intrusive search was only to remove the weapon.

The dissent argues that the standard should be probable cause because officers should not have more discretion than the judges or a Constitutional amendment should be made.

This decision makes sense because (1) it is tied to the practical reality of police (that’s how the police work anyways, (2) other rule making bodies could influence police actions, (3) police need to fight crime safely.

Scope of Frisks

Commonwealth v. Wilson

Using the rule, there is reasonable suspicion for a stop (the call regarding a crime) was made and the scene fit the description. There is also reasonable suspicion for a weapon (the call described the use of a weapon and the defendant put his hand on his hip).

In this jurisdiction a Terry frisk “scope of this search is not exceeded if, during a lawful pat frisk, it is immediately apparent to the police officer, in light of the officer’s training and experience, that a concealed item is contraband.” This is called the “plain feel” doctrine. So, because he was in a lawful frisk, and found the contraband based on his experience and identified it before seeing it, this was within plain feel. The frisk was within scope. This search can expand to backpacks and purses.

States differ as to whether the scope is only for a weapon (see Arkansas), or if it can be expanded to a certain amount (see Mass. and Montana).

If an officer is conducting a search for an item (other than a weapon) it will still require either a warrant or probable cause.

Rules for vehicles: Under Mimms, an officer can ask the driver to exit without any additional suspicion, but a frisk still requires reasonable suspicion about the weapon. Under Long, if there is reasonable suspicion of a weapon in the car, the officer can search the places where a weapon is expected to be located and within the reach of the driver. The same applied to passengers (see Johnson and Wilson). This analysis assumes there is reasonable suspicion for the stop.

Administrative Stopes and Searches

An administrative stop is where an officer makes a random stop to ensure a general administrative purpose (e.g., highway safety by ensuring drivers are licensed or not impaired). There is no need reasonable suspicion to make these stops.

City of Indianapolis v. Edmond

Rule: Administrative stops need no reasonable basis as long as they are not discretionary and they have a general administrative purpose, and limited in duration (e.g., license and registration checks, highway safety by managing drunk driving).

Sitz – sobriety stop was ok

Prouse – license checks are fine, but cannot have discretionary stops.

This is different from Whren because in Whren they were looking for crimes, which requires a reasonable basis for the stop. Here there was no reasonable basis.

Dog sniffs are fine, if they do not expand the duration of the stop.

The exception is that nonconforming roadblocks are allowed with exigent circumstances (e.g., escaped felon or terrorist attacks).

Full Searches and Seizures


A valid warrant needs (1) probable cause; (2) under oath; (3) with particularity; (4) signed by a neutral magistrate.

General Search Warrants: Historical Context

A general search warrant was a common practice of the British before the revolutionary war and rising of the United States. These were warrants authorized by the king to conduct a search. There was no limiting language (anywhere and anything could be searched) and there was no expiration date. The same is true of Writs of Assistance, where custom officers were allowed to conduct searches on Colonial ships.

Entick v. Carrington

This type of search cannot be authorized by the Lord. People ought to be protected in their homes. Otherwise there would be disorder and the government would fall away.

This case has determined that general warrants were no longer valid in England.

The Writs of Assistance

This writ of assistance authorized a representative to search ships for concealed goods that may be owed to Great Britain. Additionally, it required deputies and servants to assist in the search. This search can be conducted at any place, day or night. It expires on the death of the King (the only limit).

As general warrants were becoming less popular in England, they were utilized more often in the United States.

General warrants and writs of assistance led to distaste amongst the founders for several reasons:

  1. There is severe potential for abuse: No probable cause or limits
  2. Remedies are non existent if the warrant is valid.
  3. There was no distinction between General Warrants and Writs of Assistance (both are bad).

Even before the Constitution was developed, several colonies stated that general warrants “ought not to be granted.” During the Constitutional Convention, many delegates refused to sign the document unless there was a promise of the development of the Bill of Rights. Shortly after ratification, the Bill of Rights was drafted, which included the Fourth Amendment protections that individuals are secure against unreasonable searches and seizures. Warrants were only allowed if there was probable cause and they stated the searched areas with particularity.

Particularity in Warrants

The particularity requirement is what distinguishes a valid warrant from an invalid general warrant.

Wheeler v. State

The original test, as described in Marron, is that the warrant cannot leave the officer with any discretion about what the warrant covers.

Warrants, in order to satisfy the particularity requirement, must describe what investigating officers believe will be found on electronic devices with as much specificity as possible under the circumstances.

In other words, the court asks “whether it was reasonable to provide a more specific description of the items at that juncture of the investigation.” This test can be compared with the Steele test where the warrant must be specific enough that the officer with reasonable effort can identify the described location.

So, some common principles to abide by include: establish a time frame for when the crime was committed (if the device hasn’t been used since before the crime, the device cannot store that criminal activity), state the crime associated with the search (so investigators can narrow the search to files related to that material), limit the warrant to include only those types of media files associated with the crime (written files rather than video files).

For computers, the description of the items should be more specific. The officers were searching for evidence about witness tampering and the description allowed the officers to search material outside of that scope.

Buckner v. United States

An informant made illegal purchases and described the location of the apartment. The officer applied for a warrant using the description used by the informant. After obtaining the warrant, the officer went to the apartment building interior and discovered that the informant had provided reverse information (the number of apartments on the described side was incorrect).

This was a valid warrant. Using the Steele test, a reasonable officer was able to identify the described location (have the majority of the description line up. However, if probable cause is invalidated, the police need to get a new warrant. See Maddox.

Probable Cause


The standard for probable cause can best be articulated with four elements, with parts of each element varying from jurisdiction to jurisdiction.

  1. The assessment must be made in mind of a reasonable [prudent or cautious person, or police officer]
  2. Inferences need to be strongly associated that a crime is or has occurred (no particular number defined)
  3. Comparison to standards: more than reasonable suspicion, but less than certainty.
  4. The information obtained is provided by a quality source.
Brinegar v. United States

Probable cause is not beyond a reasonable doubt but beyond mere suspicion. It is: “Where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.”

The facts presented in this case is very similar to the facts presented in Carroll. There the court found that the officer’s knowledge of the criminal activity of the defendant and the nature of the location being a place where the type of crime was actively ongoing, gave rise to probable cause. Similar facts, no distinction besides statute at issue and minor discrepancies, all these things lead to a lack of error regarding the denial to suppress.

A couple of additional rules: (1) Police can use their training and experience to establish probable cause. (2) Fellow officer rule: Officers can use collective knowledge to create probable cause (i.e., there is no need for each officer to have probable cause).

State v. Stevenson

Stevenson was stopped for failure to turn the blinker on in time (but was suspected of drug activity). There was a strong smell of alcohol. The defendant was asked to step out of the car and the car was searched based on the odor (suspecting that there was an open container in the vehicle). He passed the field sobriety test, but an open container was found in the car.

Under the Brinegar test, the odor of alcohol was not enough to establish probable cause. After he passed the sobriety test, the search should have concluded.

State v. Parent

The officers received an anonymous tip that Parent would be arriving in the airport with illegal drugs. This tip is corroborated by the defendant’s criminal record and description. A warrant was provided on the condition that the flight arrives and Parent was on the flight.

An anticipatory warrant (depending on the jurisdiction) is where the officer knows a crime is going to occur (but has no probable cause yet) and seeks a warrant to conduct a search once the probable cause actually arrives.

For an anticipatory warrant to be issued, the officer must show (1) there is probable cause of evidence if there is a triggering condition and (2) there needs to be probable cause of the triggering condition.

Constitutionally allowed under Grubbs.

Minority of states disagree. See Dodson.

However, the issue with this is that now the police are determining whether there is probable cause, not the judge.

Sources that Support Probable Cause

Information may come from a variety of sources. These include the police, witnesses, victims, confidential informant tips (name is known by police), and anonymous tips (name is unknown by police). However, the court has mistrusted information that comes from confidential informants and anonymous sources, requiring specialized rules as outlined below.

State v. Barton

The two part test is the Aguilar-Spinelli test. Do they know what they know (basis of knowledge) and is there evidence to support the reliability (reliability)? The issues with this test is that the prongs were independent (no way of balancing the others), and the standard for review was de novo (when the usual test is abuse of discretion of the judge issuing the warrant).

Gates is the name of the test that applies the totality of the circumstances. Applied in this case.

Here, the Aguilar-Spinelli test is not utilized but remains highly relevant. There was a basis of knowledge because the informant knew where the drugs were in the home and knew the defendant’s schedule. This evidence was also reliable because the informant’s identity was known to the police (being a confidential informant) where he yielded self-incriminating information.

The concurrence and dissent in part argues that this is essentially the same test but gives the police a lot of additional discretion.

State v. Utterback

A search warrant requires probable cause based on facts set forth in an affidavit. If coming from an informant, probable cause can be established by testing the informant’s basis of knowledge and reliability. The totality of the circumstances may be used to meet these criteria. (Gates test)

Four methods may be used to establish the informant’s reliability:

  1. The informant has given reliable information to the police in the past
  2. Whether the informant is a citizen informant (a person who is motivated to assist law enforcement)
  3. Whether the informant has made self-incriminating statements in providing the information
  4. The officer corroborates the information provided.

The largest issue here is whether the informant was reliable. There is no evidence that the informant had provided reliable information in the past, nor that the informant was a citizen informant. Additionally, the informant did not provide self-incriminating statements because the crime is for possession, not for purchasing (dumb argument in my opinion). Finally, the officer only corroborated the innocent aspects of the defendant (where he lived and what he looked like), but not the criminal activities. Thus, the reliability was lacking and the warrant should not have been issued.

Additional Notes

The Gates test is the adopted standard in the majority of states because it gives judges must more flexibility while applying the same factors.

There is also “Informer’s Privilege” where the name of a confidential informant is not disclosed to the defendant unless there are exception circumstances. However, the officers know the name and

State v. Raveydts

When there is an anonymous tip, the police need to corroborate the information to test the reliability of the tipster.

This case is factually distinguishable from another case (Titus) where there was no probable cause because the names of the plates searched had no suspicious records. Here, there was a suspicious record from the visitors thus allowing probable cause.

However, the dissent argues that the officer did not do enough to corroborate the testimony. There was no additional investigation of the apartment or the visitors. The officer wouldn’t even know for sure if the two tips were coming from the same person or if their story was true. With the majority’s analysis, the dissent argues that anyone could make up a story, tell it to the police, and with little effort the police could obtain a warrant to search anyone.

The big difference between a confidential informant and an anonymous tip is that the it is much harder to confirm the reliability of an anonymous tip. The only way to confirm reliability is through corroboration. Hence this case really relied on whether corroboration existed.

Illinois v. Gates

The police receiving an anonymous tip saying that Gates and his wife were drug dealers. The wife would drive from Illinois to Florida where the vehicle would be loaded with drugs. The husband would then fly to Florida and drive the vehicle back to Illinois as the wife flies back. The officers followed the wife to Florida, saw that the husband had a flight scheduled and arrived in Florida and noticed him pick up the car. At that point a search warrant is issued, executed, and an arrest occurred. In other words, the tip illustrated future events, which were followed well.

Here, the court says that with the totality of the circumstances, the corroboration was enough to find probable cause.

Alabama v. White

Takeaway: When the police are responding to anonymous tips, they have to corroborate significant details to show that the tipster is well informed.

Florida v. J.L.

Takeaway: When the police are responding to the anonymous tips, they need to corroborate significant details of the criminal activity, not merely the innocent facts about the defendant.

Neutral Magistrates

State ex rel. Brown v. Dietrick

Although the language of the Fourth Amendment does not include “neutral” it is a source of requiring a neutral magistrate. Other sources include the code of ethics.

Constitutionally, the magistrate cannot be involved in the law enforcement (investigatory process).

Clear violations include:

  • Attorney general’s issuing warrants – Coolidge
  • Judges leading a search party – Lo-Ji Sales
  • Compensation for warrant approvals – Connally

Marriage between potentially conflicting parties alone is not a violation.

However, if a magistrate is disqualified by lack of neutrality, the judge may still issue the warrant in times of necessity (truly no other judge is available).

Exigency and Special Needs

Exceptions within the warrant requirements.

Warrantless Searches Based on Exigent Circumstances

Exigent circumstances exist when there is need to protect an officer or the public, or to keep a potential suspect from destroying evidence. In these circumstances, a search may be conducted without a warrant.

State v. Walker

A warrantless search requires (1) probable cause and (2) exigent circumstances. Exigent circumstances exist when “the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable.” This is a preponderance of the evidence standard. Examples of Exigent circumstances could include, fear of safety, flight, destruction of evidence, or the seriousness of the crime being involved.

However, the police cannot create the exigent circumstance. To determine whether the police created the exigent circumstance, see if the police actions would make it reasonably foreseeable that police conduct would lead to the circumstance or bad faith police conduct. Another test under Kentuck v. King, did the police create the exigency by threatening to engage in conduct that violates the 4th Amendment.

McArther, if the police have probable cause to detain while waiting for a search warrant, they are free to keep the status quo.

No-Knock Warrants

The traditional rule is that police have to knock and announce their identity as officers when they are executing a warrant.

State v. Anyan

No-knock warrants are only allowed to be premeditated if made by a neutral and detached magistrate included in the application. Otherwise, no-knocks are not allowed unless there is an unexpected exigent circumstance that arises on the scene.

No-knock warrants are highly disfavored because there is a huge potential for violence and needless destruction of property. The rule to knock and announce is the standard under Wilson, but the exception of exigent circumstances could overcome the standard. If there is a reasonable suspicion of harm to the police or destruction of evidence, this would show the presence of exigent circumstances where a no-knock warrant may be justified. However, if this information is known beforehand, the no-knock must be approved by a magistrate. On the other hand, if the information is obtained in the moment, the police can make the call.

One final note: When the police are trying to obtain a warrant, they have the burden of proof to obtain it. However, if they have a warrant, the defendant needs to show the absence of probable cause.

Special Needs Searches

Camara v. Mun. Ct. of San Franciso

The court originally said in Frank v. Maryland is that there was no need to obtain a warrant for administrative searches. However, this Court overturns part of Frank to say that a warrant is required and that probable cause will be the standard. However, the amount of probable cause is less where the court will balance personal rights and state interests.

There is an interest for the state to prevent health and safety standards. Additionally, there is a personal rights interest in privacy. As such, the rule is articulated as not necessarily being “dependent on the specific knowledge of the condition of the particular dwelling.”

The dissent argues that Frank should remain the main approach. Particularly, the dissent argues that warrants are not needed here because they are readily granted and will thus destroy the integrity of the warrant system as a whole. The issue is that the court wants to have probable cause but completely undermines the meaning of a warrant.

The exceptions to the warrant requirement here include:

  1. Emergencies – there is no need to wait for a warrant to put out a fire.
  2. Highly regulated industries – Donovan. If there industry is highly regulated and inherently dangerous. This rule applies only to liquor stores, mining, auto junkyards, and gun stores. This rule does not apply to hotels (not dangerous). See Patel.


If the party consents, the police can conduct a full search even if they do not have a warrant or probable cause.

Voluntary Choice

Schneckloth v. Bustamonte

The police may search without a warrant if they obtain the voluntary (not coerced or duress as established by the totality of the circumstances) consent of the subject. There is no need to inform the subject they have the right to deny a search. The prosecution has the burden of proof to show that there was valid consent.

Some of the factors to determine whether coercion was there based on the totality of the circumstances

  • Age, intellectual capacity, or sophistication.
  • Whether the subject has the knowledge that they can deny consent (although not determinative).

The right to deny consent cannot be waived because this is different from a trial; this is an informal interaction.

Ohio v. Robinette

Here, the subject gave consent to search their vehicle after they were given a warning during a traffic stop. Was free will overborne at the time the request for consent was made? There is no need to inform the subject that the original stop was over before asking for consent. About 15 states (including Iowa) say that the test is more restrictive (need to let them know). See Pals.

People v. Gomez

The police obtained consent from the subjects during a traffic stop. During the search, they found a suspicious hidden compartment, and opened it up. Now, the question is whether the police went beyond the scope of consent. Test: What would a reasonable person have understood by the exchange with the officer? See Florida v. Jimeno, 500 U.S. 248 (1991). In this case, the police exceeded the scope because their impaired the structural integrity of the vehicle and left it in a “materially different” condition. Additionally, the search should be conducted as soon as reasonably possible.

Third-Party Consent

Consent may also be provided by a third-party if the third party (1) gives the consent voluntarily and (2) has the actual or apparent authority (shown by shared control of the property subject to the search) to consent.

Commonwealth v. Porter P.

Actual authority: A third party with common authority over an area may consent to a search. See Matlock. This only applies if (1) co-inhabitant, or (2) a contractual provision giving the landlord the authority to consent.

Apparent Authority: Valid search if the police mistakenly but reasonably believe the third party can consent. See Rodriguez. The mistake must be about the facts, not the law.

First, there was no actual authority because the shelter director is not a co-inhabitant and the contractual provisions only allow the director to call the police but not expressly allow the police to search.

Second, there is no apparent authority because the officers misunderstood the law, rather than her position.

However, the dissent argues that this is poor policy, asking the staff to engage in self-help, which can be dangerous. Additionally, the parties were already in a position where the officers might as well conduct the search themselves.

In re Welfare of D.A.G.

Dale and Thomas are roommates. When they had friends over, the friends brought illegal drugs and Thomas objected. When there was no change, Thomas went to the police and gave the consent to a search. The police did come, did not knock and announce, conducted a search and found the drugs.

Here, there was actual authority because Thomas was a co-tenant.

However, when co-tenants are both present and providing competing consent (one consents while the other does not), the police are not allowed to search. See Randolph, 547 U.S. 103 (2006).

Here, Dale was not given the opportunity to avoid consent because the police came without knocking and announcing. As such, the search was not valid.

State v. Schwarz

The officers came to the door looking for the defendant, but the defendant was not there. Only the child was present (either 13 or 14) and allowed the officers to enter and search the home. Here, the search is invalid because the child did not have actual authority (did not have dominion over the home because of her age). Thus, the search was invalid.

Additional Note: In most states, a parent can consent to  the entry of a child’s room, even if the child is an adult.

State v. Maristany

The officers conducted a stop and removed and separated the occupants. When the occupants provided inconsistant stories, the officers asked the driver if he could search the trunk then again to search the bags in the trunk (consent was provided to both). After drugs were found, the driver said that the bags were not his.

Thus, the driver did not have actual authority. However, there was actual authority because the police only need to establish only a reasonable effort to establish the necessary facts.


Principles of Arrest

Is the Encounter a Stop or Arrest

Bailey v. State

As a review:

  • A stop is where the subject does not feel like they are free to leave. See Mendenhall. Here, the stop occurred when the officer grabbed the officers hands.
  • Terry stop requires reasonable suspicion of a weapon. Even if there was reasonable suspicion, the scope was exceeded because the officer did not know that the vial contained drugs until later tested.

Example of an arrest test (which requires probable cause to execute):

  1. Whether the officer has the intent to arrest
  2. If the officer had real or pretend authority
  3. The subject is seized and detained
  4. The subject understands the seizure as an arrest.

However, this is really a fact based rule. Other considerations made by courts to determine whether an arrest occurs is:

  1. The amount of time the detention lasts (20 minutes? 60 minutes? etc.) Florida v. Royer
  2. How the subject is restrained (handcuffs are not required, see Bailey and Grier)
  3. The location of the subject
  4. Phrases made by the police to the subject

Arrest Warrants

State v. Thomas
  1. An arrest can happen in a public place regardless of a warrant or not (as long as there is probable cause).
  2. Arrest warrants are sufficient to enter the home of the owner if the owner is the subject of the warrant and the officers have reason to believe that the subject is present.
  3. However, if the subject of the warrant is different than the homeowner, then there needs to be a search warrant showing probable cause that the subject of the arrest warrant is present.
  4. If there is no search warrant, there needs to be evidence of consent or exigent circumstances to enter the home. Exigent circumstances can be shown by a fleeing subject, or potential for the destruction of evidence.

Key Facts:

  • Subject of the warrant was outside
  • An arrest warrant was issued
Commonwealth v. Molina

Officer had probable cause for a search warrant but did not obtain one. He went to the home of the subject who answered then immediately attempted to make the arrest. When there was some resistance, the officer entered the home where they found the evidence of the crime.

Key distinctions from Thomas: Subject was in the doorway (cf. State v. Kiper, 532 N.W2d 698 (Wis. 1995) (being fully inside)) and there was no arrest warrant.

Police Discretion in Making Arrests

The traditional common law arrest power rules where the officer could make an arrest for any crime made within their presence but needed a warrant based on probable cause for a felony for crimes outside of the officers presence.

Lawrence Sherman & Richard Berk, The Minneapolis Domestic Violence Experiment (1984)

This is a social study of the Minneapolis police department to see what is the best way to mitigate domestic violence. There were three potential ways to mitigate: (1) cause an arrest, (2) send the primary aggressor away, (3) try and give advice and provide mediation. This third approach was the method primarily used before this study. However, this study concluded that (1) arrests resulted into reduced repeat offenses and (2) listening to the victim reduced repeat offenses.

This study altered the traditional common law arrest power. Now, instead officers could make arrests for misdemeanors (not felonies) made outside of their presence.


A citation or appearance ticket is an alternative to an arrest. The idea is that when a subject commits a minor offense the officer can give the subject a citation. There are several purposes for giving a citation instead of an arrest (1) the offense is minor and the subject is likely to appear in court as requested, (2) it saves the officer significant time because they do not need to book and post bail for every minor arrest (or get an arrest warrant), and (3) it keeps the jail system under control because less people will be waiting for minor offenses.

State v. Bayard

To have a valid discretional arrest, based on state constitutional grounds, the officer’s discretion must be reasonable as shown through (1) probable cause and (2) a need for the arrest.

This type of arrest is fine under the federal constitution by reason of the Atwater v. City of Lago Vista, 532 U.S. 318 (2001). The federal rule is that an arrest for even a minor offense is constitutionally permissible if there is probable cause that the crime was permitted. However, states are still free to limit the discretionary power through state legislation. Here, Nevada had legislation and the court interpreted it to mean that an arrest cannot occur (instead a citation should be given) if there is no reason to conduct the arrest for a minor violation.

Here, all the defendant did was a minor violation, there was no evidence that he would not go to court, and he did not appear to be a threat of committing other crimes. Therefore, an officer cannot subject him to a full arrest and strip search without other reasons (more than a hunch).

Typically, when a full arrest occurs, officers can conduct a search. However, even if the officer could have made an arrest (but gave a citation anyways), a search is not allowed. See Knowles.

Use of Force

Tennessee v. Garner

Deadly force may not be used unless there is probable cause that the subject is going to b a significant threat of death or serious injury to the officer or others. The significant threat arises (1) in the commission of a violent crime, (2) suspect threatens the officer with a weapon. A warning must also be provided to the subject if feasible.

The courts must balance the interest of the subject and the interest of the state. First, the subject has an interest in preserving their life. Second, the state has an interest in preventing crime. This interest increases with the severity of the crime being committed. Thus, more violent crimes could potentially mean the use of deadly force. Here, however, the use of deadly force was uncalled for because it appeared the subject was unarmed.

The Court also considers the historic common law rule that any force necessary to prevent a felony crime was permitted. Ultimately, they reason that the justifications do not fit into society today (guns were used differently at the founding of the Fourth Amendment, and crimes are generally not punishable by death anymore).

On the other hand, the dissent argues this new rule creates a protection (freedom of flight from committing a crime) that is not afforded by the Fourth Amendment. Additionally, the rule limits officers ability to act in the moment. In the present case, the decision made by the majority is benefited by hindsight, and is an attempt to remedy a regrettable situation.

The above outlines the rule for when deadly force may be applied. However, there are also rules for when excessive force is to be limited. These are often provided by state legislatures and police departments seeking to reform police efforts and reduce unnecessary force.

Scott v. Harris

The officer’s use of force is fine if they are objectively reasonable. The court will consider:

  • Safety of others on the road
  • How dangerous the use of force is (less so here because death is not automatic)
  • Whether the subject is culpable for the danger

This case is not an example of deadly force. Using the factors above, the use of force was reasonable. Otherwise, this would incentivize more dangerous driving.

However, the dissent argues the car drive was not threatening to other parties (minimal traffic at the time), thus this should be a question for the jury, not summary judgment.

Buckley v. Haddock – high deference for the police to determine what is reasonable. Ultimately, the interest of ensuring the effectiveness of an arrest has high weight.

Searches in Reoccuring Contexts


Searches Incident to Arrest

When the officers make an arrest, they are free to conduct a search incident to that arrest. This means that the officers can conduct a search within the scope of the arrest to remove any evidence that might be connected with the crime.

Birchfield v. North Dakota

Officers may search a person and the area within their immediate control without a warrant when they arrest a suspect (because it prevents the destruction of evidence and protect the officers). This rule applies even if there is no reasonable suspicion, probable cause, or presence of a weapon.

Breath tests may occur incident to an arrest but not blood tests.

State v. Hufnagel

The officers obtained an arrest warrant for Hufnagel for possession of cocaine. As the officers arrested him, he glanced to the nightstand so the officers searched the nightstand (about 10 feet away from the defendant). The question is whether the search extended beyond the scope of the search incident to arrest.

The zone of immediate control extends to the zone the defendant could reach immediately before the arrest occurs. The purpose for this policy is because we do not want to incentivize a delay of arrest.

Addresses the zone of immediate control by space.

People v. Boff

The officers observed Boff leave a weed farm. After arresting him and taking him to the station, they searched his backpack several hours later (without a warrant). The rule is that the search needs to occur at the time of the arrest unless (1) the item could be searched at the time of arrest (meaning the item is within the zone of immediate control) and (2) is “immediately associated” with the person (such as a purse or backpack). If so, the search could occur later. Boff’s backpack falls within this scope.

Addresses the zone of immediate control by time.

State v. McGrane

After lawfully entering a home due to an arrest warrant, officers observed McGrane being fishy upstairs. Once McGrane came downstairs and was arrested, the officers went upstairs and discovered drugs upstairs on the coffee table being prepped for sale.

Under the original rule, this is outside the zone of immediate control. Is a protective sweep? A protective sweep can extend to areas adjacent to the defendant and the rest of the house where there is reasonable suspicion a person could be present and potentially endanger the police. See Maryland v. Buie, 494 U.S. 325 (1990). Here, the search was beyond the scope because there is no suspicion that there was another person upstairs.

Body Searches at the Jail

Maryland v. King, Jr.

When the search is made without a warrant, the court must weigh the interests of the government against the subjects expectation of privacy. The more intrusive the search, the heavier the interest must be.

The state has a significant legitimate interest in knowing the identity of the person arrested, whether he is wanted elsewhere, and ensuring recapture should he flee. This interest along with (1) the minimal intrusion of a DNA swab test and (2) minimized expectation of privacy subject to arrest is sufficient to justify the search without a warrant.

However, the dissent argues that this is an unlawful search, no matter the circumstances—especially because the statute’s stated purpose is for investigatory reasons (which normally require a warrant), rather than identification reasons. That reason, in addition to the fact that identification doesn’t happen until months later, the state’s interest is significantly diminished.

Officers are also authorized to conduct more invasive searches such as strip searches and inventory (personal items) belongings.

People v. More

After conducting an arrest at the home, the officers conducted a strip search upstairs in the same home where they discovered additional drugs. An intrusive body search outside of the jail may be conducted if (1) there is a warrant unless excused by exigent circumstances, (2) clear indication (more than probable cause) that the contraband is present, and (3) the test must be conducted in a reasonable manner. See Schmerber v. California, 384 U.S. 757 (1966). Presently, the search was lacking on all three elements. Again note, this rule does not apply when the strip search is conducted in a jail.

Houses and Workplaces

Outer Boundaries of Homes

Searches of homes are afforded the most constitutional protections. The tricky part is knowing what is exactly included in the definition of “home,” the “curtilage” (area immediately surrounding the home), and the “open fields” (anything beyond the curtilage).

State v. Fisher

Can’t search a home or curtilage without a warrant based on probable cause. For curtilage, the warrant may be excepted by a (1) lack of reasonable expectation of privacy, or (2) the plain view doctrine.

“The area that harbors the intimate activity associated with the sanctity of the home and the privacies of life” is the definition of curtilage. To determine whether an item is within the curtilage the court considers the Dunn factors:

  1. Proximity to the home
  2. Whether the area is enclosed (e.g., by a fence) along with the home
  3. How the area is used
  4. Whether the owner took steps to protect the area from public observation
State v. Dixson

Open Field Doctrine

The officers obtained a tip that drugs were being grown in a rural area. When the officers searched the area, they passed several signs that said “no hunting.” They discovered the drugs on the defendant’s property.

An open field is an area beyond the scope of the home and curtilage (i.e., everything else). The Fourth Amendment provides no protections to open fields. Using the facts here, this was an open field so there are no Fourth Amendment protections and the search is valid. State law could restrict this further (e.g., Oregon adds a requirement of whether the owner has made barriers to entry).

However, in a suburban area, the courts are divided. Compare People v. Thompson (Cal. App. 1990) (the property is all curtilage), with Hart v. Myers (D. Conn. 2002) (the property is not all curtilage).

Espinoza v. State

Officers has a search warrant for Apt. B. However, the officers found drugs closer to Apt. A along Apt. A’s side of the driveway. So, the question is whether the warrant covers the seizure because the drugs were found on the curtilage of Apt. A. This was within the curtilage of A by district court, but open fields by State Supreme Court. Takeaway: Curtilage zones can vary.


People v. Galvadon

To determine whether the subject has an expectation of privacy against government intrusion when there are no surveillance camera, the court considers:

  1. Whether the work area is exclusively used by the employee.
  2. Whether the employee had the power to exclude access to the work area.

When there are surveillance cameras, the court considers:

  1. Whether the surveillance is available to the public

The expectation of privacy may be reduced regarding the store owner, but not the government.

However, this expectation of privacy is not presumed, they must be proved by the defendant.

The dissent, however, argues the reasonable expectation of privacy does not exist because the back room is readily subject to searches (being a highly regulated industry).

Also note the store owner could provide the officers the camera and there would be no issues. Additionally, the owner could voluntarily hand over the evidence if asked. However, if the owner is an agent—(1) police started it and (2) individual acts with intent to assist the police—then the evidence can be barred.

Note that the above case argues the expectation of privacy against the government is not reduced even if the expectation of privacy against an employer would be. This is not the case for government jobs. The government does not need a warrant to conduct a non investigative work-related search, or an investigation on work-related misconduct.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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