NOTE: This list of Frequently Asked Questions (FAQ) is constantly under construction. Due to the enormity of this project, the following materials may not be complete, may not be appropriately organized, or may not be organized at all, for that matter.
Because there are limitless factual situations, the answer provided herein may not be the same when applied to any particular factual situation. Therefore, this material is for educational purposes only and is not intended to be legal advice.
All information in this FAQ is current at the time of the latest revision date reflected above. However, because the law frequently changes based on either statutory amendments or new judicial interpretations, you should consult the legal advisor prior to relying upon any material contained herein.
There is a detailed Table of Contents at the
end of the document.
Q. What areas or interests are covered by the Fourth Amendment?
A. Any area or interest in which a defendant has exhibited a subjective expectation of privacy which society is prepared to recognize as objectively reasonable. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)(conversation inside a public telephone booth).
Q. Is there such a thing as a "nonsearch"?
A. Yes. This means the investigation technique does not constitute a search under the Fourth Amendment and can be conducted without a warrant. Some examples are: Stop and Frisks (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); Plain view (Horton v. California, 496 U.S. 128, 136-137 (1990)); Open fields; (Oliver v. United States, 466 U.S. 170 (1984)); dog sniffs, etc.Q. Does all police observation activity constitute a search?
A. No. To constitute a search triggering Fourth Amendment protections, Katz requires a subjective expectation of privacy (some action or activity manifesting a purpose to keep the property or activity sough to be protected private) and a determination that the privacy expectation is objectively reasonable. For example, dog sniffs of the exterior of luggage in an airport does not constitute a search, United States v. Place, nor does an examination of trash left outside the curtilage of a home. California v. Greenwood.
Q. Do police need a warrant to seize items in plain view which are clearly illegal?
A. No. Under the plain view doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. See Horton v. California, 496 U.S. 128, 136-137 (1990).Q. Can police manipulate the outside of soft-sided luggage in an overhead rack on a common carrier to search for drugs?
A. It depends on what jurisdiction you are in. In the 10th Circuit (which includes Kansas), the answer is no. In United States v. Nicholson, ___ F.3d ___ (10th Cir. No. 97-6114, filed May 5, 1998) the court held that a suspicionless police sweep of a bus in interstate travel consisting of detectives removal of luggage from overhead rack (and luggage hold) and manipulation of the bag (prior to sniffing odor of drugs) constitutes an unreasonable search and seizure. The court noted that a manipulation of the bag to circulate air in preparation for a sniff may have made the case turn out different. In the 7th Circuit, the answer is yes. There is no reasonable expectation of privacy that the exterior of luggage will not be felt, handled or otherwise manipulated when placed in an overhead rack accessible to other passengers and where others stowed their luggage. United States v. McDonald, 100 F.3d 1320 (7th Cir. 1996) cert. denied 138 L.Ed.2d 186.Q. What if, during the pat-down, the officer feels something which he reasonably believes to be drugs. Can he go in the pocket and remove the item?
A. Yes, provided it is "immediately apparent" to the officer based on his training, education and experience, that the item in the pocket is contraband. In Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L. Ed. 2d 334 (1993), the United States Supreme Court adopted a "plain feel" corollary to the plain view doctrine, and held that if a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context. 508 U.S. at 376. The Kansas Supreme Court adopted the plain feel corollary in State v. Wonders, 263 Kan. 582, 952 P.2d 1351 (1998).Q. What showing must be made before drugs or other evidence can be seized under the plain feel exception?
A. The incriminating nature of the item must be "immediately apparent" to the officer. In Dickerson, the officer felt a "small, hard object wrapped in plastic" and, after "squeezing, sliding and otherwise manipulating the contents of the defendant's pocket," the officer determined the lump was crack. The search was held invalid because continued exploration of the pocket after determining there was no weapon there was unrelated to the sole justification of the Terry search.508 U.S. at 378.Q. Does a dog sniff constitute a search which is subject to the Fourth Amendment?
A. No. State v. McMillin, 23 Kan. App. 2d 187, ___ P.2d ___ (1997)(no expectation of privacy in exterior of car parked in a public lot).
Q. Does an officer need a warrant to go into a person's house?
A. Yes. A person's home is their castle and is accorded special Fourth Amendment protection. Except in a very, very limited range of circumstances, a warrant will always be required. Absent probable cause and exigent circumstances, warrantless arrests in the home are prohibited by the Fourth Amendment. Payton v. New York, 445 U.S. 573 (1980).Q. An officer investigating an accident finds that an intoxicated individual caused an accident and left the scene. The officer goes to the person's house and finds the intoxicated person there. Can the officer go in an arrest the person without a warrant?
A. No. Before government agents may invade the sanctity of the home, the government must demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. An important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made. Moreover, although no exigency is created simply because there is probable cause to believe that a serious crime has been committed, application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense has been committed. Welsh v. Wisconsin, 466 U.S. 740 (1984).Q. What are the exceptions to the warrant requirement?
A. There are now nearly twenty. As Justice Scalia noted in California v. Acevedo, 500 U.S. 565 (1991): "Even before today's decision, the "warrant requirement" had become so riddled with exceptions that it was basically unrecognizable. In 1985, one commentator cataloged nearly 20 such exceptions, including "searches incident to arrest . . . automobile searches . . . border searches . . . administrative searches of regulated businesses . . . exigent circumstances . . . search[es] incident to nonarrest when there is probable cause to arrest . . . boat boarding for document checks . . . welfare searches . . . inventory searches . . . airport searches . . . [and] school search[es]. . . ." Bradley, Two Models of the Fourth Amendment, 83 Mich.L.Rev. 1468, 1473-1474 (1985) (footnotes omitted). Since then, we have added at least two more. California v. Carney, [500 U.S. 565, 583] 471 U.S. 386 (1985) (searches of mobile homes); [and] O'Connor v. Ortega, 480 U.S. 709 (1987) (searches of offices of government employees). Our intricate body of law regarding "reasonable expectation of privacy" has been developed largely as a means of creating these exceptions, enabling a search to be denominated not a Fourth Amendment "search," and therefore not subject to the general warrant requirement. Cf. id., at 729 (SCALIA, J., concurring in judgment). Acevedo, 500 U.S. at 582-83 (Scalia, J., concurring).
Q. Are Farm Fields covered by the Fourth Amendment?
A. No. Open fields are not "effects" within the meaning of the Amendment, the term "effects" being less inclusive than "property" and not encompassing open fields. The government's intrusion upon open fields is not one of those "unreasonable searches" proscribed by the Amendment. Oliver v. United States, 466 U.S. 170, 176-77 (1984).
Q. Why can officers conduct warrantless searches of cars, but not warrantless searches of houses?
A. The inherent mobility of a car allows it to be quickly moved out of the locality or jurisdiction in which the warrant must be sought. Caroll v. U.S., 267 U.S. 132 (1925).Q. Does the automobile exception allow warrantless searches of luggage found in vehicles?
A. Yes, if the search of the article is based on probable cause. California v. Acevedo, 500 U.S. 565 (1991)(sack in trunk believed to contain marijuana).
Q. Does an officer need a warrant to search backpacks which are left on a bus during a layover after a law enforcement officer tells the passengers to take all carry-on items past a drug-sniffing dog?
A. Yes. The backpacks were not abandoned because the owner did not objectively evidence any intent to abandon the objects by clear and unequivocal physical acts such as throwing them away, giving them to strangers or leaving them unguarded on public property. The test for abandonment is whether an individual has retained any reasonable expectation of privacy in the object. United States v. Garzon, ___ F.3d ___ (10th Cir. 1997). See also United States v. Hernandez, 7 F.3d 944 (10th Cir. 1993).
Q. What is the difference between reasonable suspicion and probable cause?
A. Probable cause is where the known facts and circumstances are sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of a crime will be found. Reasonable suspicion is a lesser standard which is simply "a particularized and objective basis for suspecting the person stopped of criminal activity. State v. Chapman, 23 Kan. App. 2d 999 , 1005-1006, 939 P.2d 950 (1997).
Q. Does an officer ordinarily need a warrant to conduct a search?
A. Yes. The Fourth Amendment protects persons, houses, papers and effects from unreasonable searches and seizures, and requires that warrants be supported by probable cause supported by oath or affirmation. Reading these two clauses together, the Supreme Court has held that searches conducted without warrants are "per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions." Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L. Ed. 2d 334 (1993). See State v. Johnson, 253 Kan. 356, 362, 856 P.2d 134 (1993); State v. Teeter, 249 Kan. 548, 550-21, 819 P.2d 651 (1991).Q. Can officers obtain an anticipatory search warrant which becomes effective upon the happening of a future event?
A. Yes, if the conditions precedent to execution are clearly set forth in the warrant or affidavit. United States v. Hugoboom, 112 F.3d 1081 (10th Cir. 1997).
Q. Can an officer search anyone on the premises when executing a search warrant at a house?
A. No, unless the individual consents, an item is in plain view on the person or in their possession, the individual is validly arrested, there is probable cause plus exigent circumstances, or a Terry search where the officer believes the person may be armed and dangerous. State v. Vandiver, 257 Kan. 53, 891 P.2d 350 (1995).
Q. When is an individual under arrest?
A. It depends on the facts and circumstances of each case. The legal test is whether a reasonable person would feel free to leave under the circumstances. Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).Q. After arresting someone, can an officer search their person?
A. Yes. A search incident to a valid arrest is reasonable under the Fourth Amendment and is an exception to the warrant requirement. United States v. Robinson, 414 U.S. 218 (1973).Q. Can an officer arrest a person based on items he or she finds during a search of that person?
A. Yes, but only if there is first a valid arrest based on probable cause or a warrant. In order to constitute a valid search incident to arrest, there must be a lawful arrest, followed by a search. K.S.A. 22-2501; State v. Epperson, 237 Kan. 237 Kan. 707, 715, 703 P.2d 761 (1985).
Q. Can an officer search a person's pockets incident to arrest?
A. It depends on what the arrest is for. If it is for violating a traffic law such as speeding, no. If the person is arrested based on probable cause they just completed a drug transaction, the person can be searched to preserve evidence of the crime. K.S.A. 22-2501
Q. What constitutes exigent circumstances?
A. There are only a few recognized emergency conditions which rise to the level of exigent circumstances. See, e. g., United States v. Santana, 427 U.S. 38, 42-43 (1976) (hot pursuit of a fleeing felon); Warden v. Hayden, 387 U.S. 294, 298-299 (1967) (same); Schmerber v. California, 384 U.S. 757, 770-771 (1966) (destruction of evidence); Michigan v. Tyler, 436 U.S. 499, 509 (1978) (ongoing fire).Q. What is required to satisfy the hot pursuit exception to the warrant requirement?
A. Immediate or continuous pursuit of a subject from the scene of a crime, or an articulable threat to public safety. Welsh v. Wisconsin, 466 U.S. 740 (1984)
Q. Can officer look around a house and seize incriminating items in plain view when in the house to arrest someone pursuant to a valid warrant?
A. Yes. The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. Maryland v. Buie, 494 U.S. 325 (1990).Q. What exactly is a "protective sweep"?
A. A "protective sweep" is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding. Maryland v. Buie, 494 U.S. 325 (1990).Q. Can police officers make a warrantless entry into someone's home to turn down a stereo which is being played loudly enough to disturb neighbor's peace?
A. Yes. Warrantless entry justified by exigent circumstances where officers had unsuccessfully attempted to contact owner and time was of the essence due to continuing noise. United States v . Rohrig, 98 F.3d 1506 (6th Cir. 1996).Q. Can a domestic violence call and reason to believe an aggressor is still in the residence justify a warrantless entry and search of a house?
A. Yes. Based on the officer's experience with domestic violence cases and the circumstances present, the officer could enter and search. State v. Gilbert, ___ Kan. App. 2d ___ (No. 77291, filed 7/25/97).
Q. Is a car stop subject to Fourth Amendment seizure standards?
A. Yes. Temporary detention of individuals during a car stop by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons." See Delaware v. Prouse, 440 U.S. 648, 653 (1979). An automobile stop is thus subject to the constitutional imperative that it not be "unreasonable" under the circumstances.Q. When can police stop a car?
A. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. See Delaware v. Prouse, 440 U.S. 648, 659 (1979); Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (per curiam).Q. Can an officer stop a car for a traffic infraction when his or her real justification for doing so is a pretext to search for drugs or something else?
A. Yes. Whenever probable cause supports a stop, an officer's subjective reason for the stop is irrelevant. Whren v. United States, 517 U.S. ___, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
Q. Can an officer search the entire passenger compartment of an automobile incident to an arrest?
A. Not always, in Kansas. K.S.A. 22-2501 limits an officer to search for evidence of "the" crime, not evidence of "a" crime. Arrest on a traffic warrant will not allow search of the entire car incident to arrest in the absence of facts and circumstances justifying a search based on officer safety, to prevent escape, or evidence of "the" crime. State v. Anderson, 259 Kan. 16, 24, 910 P.2d 180 (1996).
Q. After issuing a warning ticket and advising defendant he is free to go, can an officer detain a driver and conduct a dog sniff of their car in the absence of consent or reasonable suspicion of drug activity?
A. No. The scope and duration of a search must be strictly tied to the reasons for the stop. When the stop is for a traffic violation, detaining the suspect for the time (duration) it takes to call on a drug sniffing dog, in the absence of probable cause, is unreasonable. State v. Chapman, 23 Kan. App. 2d 999 , 939 P.2d 950 (1997).Q. When conducting a traffic stop, does an officer have to tell the driver he is free to go before the officer asks the individual if he or she has drugs or weapons in the car?
A. No. The Fourth Amendment does not require that a lawfully seized defendant be advised that he is "free to go" before his consent to search will be recognized as voluntary. The Amendment's touchstone is reasonableness, which is measured in objective terms by examining the totality of the circumstances. Ohio v. Robinnette, ___ U.S. ___ (1996).
Q. If an officer has no suspicion the passenger in a vehicle is involved in criminal activity, can the officer detain the passenger while he checks for warrants, arrests one of the passengers, and then searches the car incident to the passenger's arrest?
A. No. The scope and duration of a seizure must be strictly tied to and justified by the circumstances which rendered its initiation proper. State v. Damm, 246 Kan. 220, 224, 787 P.2d 1185 (1990)
(1) Inventory Searches
Q. When can police conduct an inventory search of a vehicle?
A. When the vehicle is lawfully impounded based on a statute, ordinance or some other reasonable grounds. State v. Teeter, 249 Kan. 548, 550-21, 819 P.2d 651 (1991).Q. What constitutes reasonable grounds for impounding a vehicle?
A. The necessity for removing (1) an unattended-to car illegally parked or otherwise illegally obstructing traffic; (2) an unattended-to car from the scene of an accident when the driver is physically or mentally incapable of deciding upon steps to be taken to deal with his property, as in the case of the intoxicated, mentally incapacitated or seriously injured driver; (3) a car that has been stolen or used in the commission of a crime when its retention as evidence is necessary; (4) an abandoned car; (5) a car so mechanically defective as to be a menace to others using the public highway; (6) a car impoundable pursuant to ordinance or statute which provides therefor as in the case of forfeiture. State v. Teeter, 249 Kan. 548, 552, 819 P.2d 651 (1991).Q. If the owner, operator or person in charge of a vehicle is readily available to make a determination of the vehicle, can the officer make that determination for him or her?
A. No. State v. Fortune, 236 Kan. 248, 257, 689 P.2d 1196 (1984).
Q. Can an officer approach anyone for whatever reason and ask their name?
A. Yes. This is known as a police-citizen encounter and raises no Fourth Amendment concerns. Without having reasonable suspicion to justify a Terry stop, an officer may approach an individual and request their name and identification, but the individual is free to leave and the officer cannot force the individual to answer. State v. McKeown, 249 Kan. 506, 509, 819 P.2d 6344 (1991).
Q. What circumstances justify a Terry stop?
A. When an officer observes unusual conduct which, in light of his or her experience, leads them to reasonably conclude that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).Q. Can an officer pat-down the outer clothing of an individual on the street for weapons?
A. Yes. If an officer has reasonable, articulable suspicion that criminal activity is afoot, the officer can stop and frisk the person to check for weapons. This minimal intrusion is justified by officer safety concerns. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Q. What is the permissible scope of a Terry search?
A. Outer clothing for weapons only. Terry v. Ohio, 392 U.S. 1, 26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).Q. If an officer approaches an individual and asks for the their and identification, and the individual refuses to identify themselves, can the officer charge the individual with interference or obstruction?
A. Yes, but only if the officer has reasonable suspicion to believe the individual has committed, is committing, or is about to commit a crime. Otherwise, no. See K.S.A. 22-2402(a); State v. Marks, 226 Kan. 704, 707-08, 602 P.2d 1344 (1979).Q. Will Terry justify a search of a passenger compartment of an automobile?
A. Yes. In Michigan v. Long, police approached a man who had driven his car into a ditch and who appeared to be under the influence of some intoxicant. As the man moved to reenter the car from the roadside, police spotted a knife on the floorboard. The officers stopped the man, subjected him to a patdown search, and then inspected the interior of the vehicle for other weapons. During the search of the passenger compartment, the police discovered an open pouch containing marijuana, and seized it. The Supreme Court upheld the validity of the search and seizure under Terry, holding that, in the context of a roadside encounter, where police have reasonable suspicion based on specific and articulable facts to believe that a driver may be armed and dangerous, they may conduct a protective search for weapons not only of the driver's person, but also of the passenger compartment of the automobile. Long, 463 U.S., at 1049.Q. Does Terry give an officer carte blanche to search everywhere in the car?
A. No. The protective search of the vehicle is justified solely by the danger that weapons stored there could be used against the officers or bystanders, and the search must be "limited to those areas in which a weapon may be placed or hidden." However, if "while conducting a legitimate Terry search of the interior of the automobile, the officer should . . . discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances." Long, 463 U.S. at 1050; accord, Sibron, 392 U.S., at 69-70 (WHITE, J., concurring); id., at 79 (Harlan, J., concurring in result).
Q. If an officer approaches a parked vehicle and requests identification from an individual inside the car, has the officer made a stop or detention of the vehicle?
A. No. An officer can approach and question the vehicle's occupants in the course of a criminal investigation. State v. Marks, 226 Kan. 704, 710, 602 P.2d 1344 (1979).
Q. Can an officer detain someone without probable cause because that individual does not have any identification?
A. No. State v. Schmitter, 23 Kan. App. 2d 547, 550, ___ P.2d ___ (1997).Q. Can an officer go into people's pockets in an effort to locate the person's identification?
A. No. State v. Schmitter, 23 Kan. App. 2d 547, 550, ___ P.2d ___ (1997).
A. Yes, if the State can prove by
a preponderance of the evidence the evidence would have been discovered.
Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984);
State v. Waddell, 14 Kan. App. 2d 129, 784 P.2d 381 (1989).
Q. What is required to satisfy the hot pursuit exception to the warrant requirement?
A. Immediate or continuous pursuit
of a subject from the scene of a crime, or a articulable threat to public
safety. Welsh v. Wisconsin, 466 U.S. 740 (1984)
Car Stops
Q. Can an officer detain a suspected drug trafficker based on a drug courier profile ((1) experienced drug interdiction officer; (2) defendant was extremely nervous, (3) defendant was breathing heavy; (4) defendant was avoiding eye contact; (5) defendant had hotel business card on floor of vehicle with handwritten phone number on it; (6) the interior of car had no luggage or other personal items [in other words, the car was clean]; and (7) the driver was unable to name the owner of the car)?
A. Probably not. In State v.
Chapman, 23 Kan. App. 2d 999 , 1005, 939 P.2d 950 (1997), the court
held the factors cited above did not rise to the level of reasonable suspicion.
Interestingly, the Court of Appeals looked at a prior case involving the
same trooper where the trooper testified he believed the driver was trafficking
drugs because (1) he had unusual travel plans; (2) the driver misidentified
the city where he rented the car; (3) there were fast food wrappers and
open maps in the passenger compartment; (4) the driver was extremely nervous
and (5) the driver had a prior narcotics conviction. This profile did not
rise to the level of reasonable suspicion either. United States v. Wood,
106 F.2d 942 (10th Cir. 1997).
Q. Can an officer charge a defendant with refusing a Preliminary Breath Test in city court, and DUI in State Court?
A. Yes. There is no double jeopardy
problem because there is no identity of the elements. State v. Todd,
___ Kan. ___ (No. 78083 filed 7/11/97).
Q. Are police reports admissible in evidence?
A. Generally not. Reports are hearsay
and may be based on speculation. State v. Griffin, ___ Kan. ___
(No. 76037, filed 7/11/97).
Q. Are Indian Nations license plates valid in Kansas?
A. Yes. The reciprocity statute
(K.S.A. 8-138a), requires Kansas to recognize the plates as valid if they
are valid in the state where the tribe is located. State v. Wakole,
265 Kan. 53, 959 P.2d 882 (1998).
Q. What standard governs when an appellate court reviews a trial courts' suppression of evidence?
A. Appellate courts review the factual
underpinnings of the decision by a substantial competent evidence standard
and reviews the ultimate legal decision drawn from those facts de novo
with independent judgement. State v. Webber, 260 Kan. 263, 274-75,
918 P.2d 609 (1996).
Q. When a defendant challenges a search or seizure, who bears the burden of showing the search or seizure was lawful?
A. The State. State v. Damm,
246 Kan. 220, 22, 787 P.2d 1185 (1990)(citing Mincey v. Arizona,
437 U.S. 385, 390-91, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)).
*Also known as coming attractions - meaning I'm not finished with it yet . . .
Chapter 1 ARREST, SEARCH & SEIZURE
1.1 Protected Areas & Interests
(a) Katz expectation of Privacy
Test
(b) Plain view, smell, hearing & feel
(c) Residential premises
(d) Open Fields
(e) Business Premises
(f) Vehicles
(g) Personal Characteristics
(h) Abandoned property/effects
(i) Surveillance of Relationships/Movement
1.2 Probable Cause
(a) Generally
(b) Nature of Probable Cause
(c) Informant Information
(d) Victim/Witness Information
(e) Information from/held by other officers
(f) First-hand information
(g) Special Problems relating to Searches
1.3 Search Warrants
(a) When warrant can be utilized
(b) Neutral and Detached Magistrate
(c) Oath or Affirmation and Record
(d) Affidavits establishing Probable Cause
(e) Describing place to be searched
(f) Describing things to be seized
(g) Time of Execution
(h) Entry without notice
(i) Detention and search of persons
(j) Scope and intensity of Search
(k) What may be seized
(l) Miscellaneous Requirements
1.4 Search and seizure of Persons and
Personal Effects
(a) Arrest
(b) Search of the Persons at scene of
prior arrest
(c) Search of the person at post-arrest
detention
(d) Other search of the person
(e) Seizure of Containers and Other Personal
Effects
1.5 Entry and Search of Premises
(a) Basis for entry to arrest
(b) Entry without notice to arrest
(c) Search before and incident to arrest
(d) Search and exploration after arrest
(e) Warrantless entry and search for evidence
(f) Warrantless entry and search for other
purposes
(g) What may be seized
1.6 Search and seizure of vehicles
(a) Search incident to arrest
(b) Search and seizure to search for evidence
(c) Search of containers and persons within
(d) Seizure for other purposes
(e) Search for other purposes
(f) Plain view, subterfuge and related
matters
1.7 Stop and Frisk and Similar Lesser
Intrusions
(a) Stop and frisk: Fourth Amendment Theory
(b) Dimensions of a permissible stop
(c) Action short of a stop
(d) Grounds for a permissible stop
(e) Frisk for weapons
(f) Roadblocks
(g) Detention at Police Station for investigation
(h) Brief Seizure of objects
1.8 Inspections and Regulatory Searches
(a) General considerations
(b) Inspection of Housing
(c) Inspection of Businesses
(d) Welfare Inspection
(e) Inspections at fire scenes
(f) Vehicle use regulations
(g) Airport searches
(h) Searches directed at prisoners
(i) Searches directed at Probationers
& Parolees
(j) Searches directed at students
(k) Searches directed at public employees
1.9 Consent searches
(a) Nature of Consent
(b) Factors bearing on validity of consent
(c) Consent by deception
(d) Third-party consent: General considerations
(e) Common relationships in third-party
consent
(f) Scope of consent
Chapter 2. WIRETAPPING & ELECTRONIC
SURVEILLANCE
2.1 Title III and the Fourth Amendment
(a) Summary of Title III
(b) Continued Surveillance
(c) Lack of Notice
(d) Probable cause
(e) Particular Description
(f) Covert entry
(g) Emergency Interception without a warrant
(h) Use of secret agents
2.2 Title III: What Surveillance Covered
(a) Meaning of "Interception"
(b) Phone Company Activities
(c) Consent
(d) National Security Surveillance
2.3 Title III: Application for and Issuance
of Court Order
(a) Application Procedure
(b) Contents of Application
(c) Review of Application
(d) Contents of Order
2.4 Title III: Executing the Order
(a) Recording
(b) Minimization
(c) Amendment and Extension
(d) Post-surveillance Notice
(e) Sealing
2.5 Title III: Remedies
(a) Violations Requiring Exclusion
(b) Who May Exclude When
(c) Disclosure of Illegal Electronic Surveillance
(d) Disclosure of Electronic Surveillance
Records
(e) Civil Remedies
(f) Criminal PenaltiesChapter
3 Police "Encouragement" and the Entrapment Defense3.1
Encouragement of Crime and the Defense of Entrapment
(a) Encouragement of Criminal Activity
(b) Entrapment Defense as a Limit
(c) Scope of the Defense
3.2 Subjective Versus Objective Test for
Entrapment
(a) The Subjective Approach
(b) The Objective Approach
(c) Objections to the Subjective Approach
(d) Objections to the Objective Approach
3.3 Procedural Considerations
(a) Admissibility of Evidence of Defendant's
Past Conduct
(b) Triable by Court or Jury
(c) Inconsistent Defenses
(d) Burden of Proof
3.4 Other Challenges to Encourage Practices
(a) Contingent Fee Arrangements
(b) Inducements to Those Not Reasonably
Suspected
Chapter 4. Interrogation and Confessions
4.1 Introduction and Overview
(a) The Need for Confessions
(b) The Extent of Police Abuse
(c) The Supreme Court's Response
4.2 The "Voluntariness" Test
(a) The Common Law Rule
(b) Due Process and the "Complex of Values"
(c) Relevant Factors in the "Totality
of Circumstances"
4.3 The Prompt Appearance Requirement
(a) The McNabb-Mallory Rules
(b) Reactions to the Rules
(c) Prompt Appearance in the States
4.4 The Right to Counsel
(a) When the Right to Counsel Begins
(b) Waiver of Counsel
(c) Infringement of the Right
4.5 The Privilege Against Self-Incrimination;
Miranda
(a) The Privilege in the Police Station
(b) The Miranda Rules
(c) The Experience Under Miranda
4.6 Miranda: When Interrogation
is "Custodial"
(a) "Custody" vs. "Focus"
(b) Purpose of Custody
(c) Subjective vs. Objective Approach
(d) Presence at Station
(e) Presence Elsewhere
(f) Other Considerations
4.7 Miranda: "Interrogation"
(a) The "Functional Equivalent" Test
(b) Questioning
(c) Other "Words or Actions"
(d) "Volunteered" Statements and Follow-Up
Questioning
4.8 Miranda: Required Warnings
(a) Content
(b) Time and Frequency
(c) Manner; Proof
(d) Additional Admonitions
4.9 Miranda: Waiver of Rights
(a) Express or Implied
(b) Competence of the Defendant
(c) Conduct of the Police
(d) Conduct of the Defendant: Implied
Waiver
(e) Conduct of the Defendant: Implied
Assertion of Rights
(f) Conduct of the Defendant: "Qualified"
or Limited Waiver
(g) Waiver After Assertion of Rights
4.10 Miranda: Nature of Offense,
Interrogator, and Proceedings
(a) Questioning About Minor Offense
(b) Questioning by Private Citizen
(c) Questioning by Non-police Official
(d) Questioning by Foreign Police
(e) Proceedings at Which Confession Offered
Chapter 5. Identification Procedures
5.1 Introduction
(a) The Problem of Misidentification
(b) The Causes of Misidentification
(c) The Supreme Court's Response
5.2 The Privilege Against Self-Incrimination
(a) The Schmerber Rule
(b) Application to Identification Procedures
(c) Refusal to Cooperate
(d) Change in Appearance
5.3 The Right to Counsel and to Confrontation
(a) Procedures Required
(b) Time of Identification
(c) Nature of Identification Procedure
(d) Waiver or Substitution of Counsel
(e) Role of Counsel
(f) Consequences of Violation
(g) The "Repeal" of the Right
5.4 Due Process: "The Totality of the
Circumstances"
(a) Generally
(b) The "Unnecessarily Suggestive" Element
(c) The Risk of Misidentification Element
(d) Lineups
(e) Use of Pictures
(f) One-Man Showups
(g) In-Court Identifications
Chapter 6. Scope of the Exclusionary
Rules
6.1 Standing: The "Personal Rights" Approach
(a) "Personal Rights" as to Searches,
Confessions and Identifications
(b) Residential Premises
(c) Business Premises
(d) Vehicles
6.2 Standing: Other Possible Bases
(a) "Automatic" Standing
(b) "Target" Standing
(c) "Derivative" Standing
(d) Abolition of Standing
6.3 "Fruit of the Poisonous Tree" Theories
(a) Generally
(b) "But for" Rejected
(c) "Attenuated Connection"
(d) "Independent Source"
(e) "Inevitable Discovery"
6.4 Fruits of Illegal Arrests and Searches
(a) Confessions
(b) Searches
(c) Arrests
(d) Identification of Person
(e) Testimony of Witness
(f) New Crime
6.5 Fruits of Illegally Obtained Confessions
(a) The Confession as a "Poisonous Tree"
(b) Searches
(c) Confessions
(d) Testimony of Witness
6.6 Permissible Use of Illegally Seized
Evidence at Trial
(a) Impeachment
(b) Defense Tactics Which "Open the Door"
(c) Prosecution for Perjury of Other "New"
Offense
Chapter 7. The Right to Counsel
7.1 The Constitutional Rights to Retained
and Appointed Counsel
(a) Sixth Amendment Rights
(b) Due Process Rights
(c) Derivative Rights to Counsel
(d) Equal Protection and Appointed Counsel
7.2 Scope of the Indigent's Right to Counsel
and Other Assistance
(a) Right to Appointed Counsel: Misdemeanor
Prosecutions
(b) Right to Appointed Counsel: Stages
of the Proceeding
Chapter 8. The Decision Whether to
Prosecute
8.1 Nature of the Decision
(a) In General
(b) Evidence Sufficiency
(c) Screening Out Cases
(d) Diversion
(e) Selection of the Charge
8.2 Discretionary Enforcement
(a) The Prosecutor's Discretion
(b) Police Discretion
(c) Jury and Judge Discretion
(d) The "Problem" of Discretion
(e) Confining the Prosecutor's Discretion
(f) Structuring the Prosecutor's Discretion
(g) Checking the Prosecutor's Discretion
(h) Mandating the Prosecutor's Discretion
8.3 Challenges to and Checks Upon the
Decision Not to Prosecute
(a) Mandamus
(b) Private Prosecution; Qui Tam Actions
(c) Judicial Approval of Nolle Prosequi
(d) Grand Jury
(e) Attorney General
(f) Removal; Special Prosecutor
8.4 Challenging the Decision to Prosecute;
Equal Protection
(a) Discriminatory Prosecution