Homeland

Security

FEDERAL LAW ENFORCEMENT TRAINING 

CENTERS

OFFICE OF CHIEF COUNSEL

GLYNCO, GEORGIA

LEGAL DIVISION

REFERENCE BOOK

2015
Foreword to the 2015 Edition

The Legal Division Reference Book is the culmination of almost forty

years of dedicated efforts of many members of the Office of Chief 

Counsel’s Legal Division at the Federal Law Enforcement Training 

Centers. The reader will find brief descriptions of the facts, issues 

and holdings of important Supreme Court cases concerning many

Fourth, Fifth and Sixth Amendment issues, as well as several others. 

There is also an Additional Resources section which includes useful 

materials for your studies. Additionally, I invite all to visit the Legal 

Division’s website at:

www.fletc.gov/legal-resources

This website contains other resources to keep law enforcement 

officers updated on the ever changing law enforcement legal 

landscape, such as:

The Informer – a monthly review of significant Supreme Court and 

Federal Courts of Appeals cases of interest to law enforcement. A free 

subscription is offered to The Informer by going to the web site listed 

above and clicking on the “Subscribe to The Informer” link. 

Webcasts – monthly presentations presented gratis from members of 

the Legal Division staff on an assortment of topics. Dates and topics 

can be found at www.fletc.gov under Programs & Notices and as 

advertised in The Informer.

Case Digests – compilations of all of the cases reported in The 

Informer during the current year as well as previous years, arranged 

by federal judicial circuit and subject matter.

PodCasts – covering the Fourth, Fifth, and Sixth Amendments as well 

as many other issues of interest to law enforcement officers. These 7-

10 minute presentations can be accessed through a computer or 

downloaded to an MP3 player.

The site also contains articles, training programs, FAQs, and 

downloads.

Susan B. Thornton

Chief, Legal Division

January 2015
How to Use this Book

The Legal Division Handbook relies essentially on the Supreme Court 

cases that have developed Fourth, Fifth and Sixth Amendment law. 

Crucial principles of the law are embedded in the Handbook text with 

frequent cites to the pertinent cases. This Reference Book provides

an opportunity to gain further insight, clarity and understanding of

the law by setting out the facts, issues, holding, and rationales of 

those significant decisions. The cases are listed by subject in the 

Table of Contents and by name in the Index in the back of this book.

This Reference Book is also helpful in preparing for legal 

examinations. The facts of each case can mimic the material that 

make up multiple choice test questions. The issue in each case brief 

can serve as a test question. Students may attempt to answer the 

question posed in the issue before reading the Supreme Court’s 

answer and rationale as a means of testing knowledge gained from 

course work and the Handbook. For additional practice test 

questions, visit:

https://www.fletc.gov/complete-practice-exam-set-pdf

Specific guidance and policies from the Department of Justice and 

Department of Homeland Security is arranged for quick reference on 

issues such as: Use of Race, Legal Ethics, Consensual Monitoring, 

Use of Deadly Force, the Public Safety Exception, Discovery in

Criminal Cases, Use, Preservation and Disclosure of 

eCommunications in Federal Criminal Cases, Electronic Recording of 

Statements, and Interviewing Government Employees.

ii 

 
Table of Contents

I. FOURTH AMENDMENT - EXCLUSIONARY RULE....................1

A. Origins........................................................................................1

Weeks v. United States.........................................................................................1

Elkins v. United States .........................................................................................2

Mapp v. Ohio.........................................................................................................2

B. Fruit of the Poisonous Tree ........................................................4

Silverthorne Lumber Co. v. United States ............................................................4

Nardone v. United States .....................................................................................5

United States v. Ceccolini.....................................................................................5

United States v. Crews.........................................................................................6

Taylor v. Alabama ................................................................................................8

Trupiano v. United States.....................................................................................9

C. Exceptions................................................................................10

1. No Standing to Object ...................................................................... 10

Rawlings v. Kentucky.........................................................................................10

Rakas v. Illinois ..................................................................................................11

Wong Sun v. United States.................................................................................11

United States v. Salvucci, Jr...............................................................................13

United States v. Payner ......................................................................................13

United States v. Padilla ......................................................................................15

Alderman v. United States .................................................................................16

Mancusi v. DeForte .............................................................................................16

2. Good Faith Exception ...................................................................... 17

United States v. Leon..........................................................................................17

Massachusetts v. Sheppard...............................................................................18

Arizona v. Evans.................................................................................................20

Herring v. United States .....................................................................................20

Davis v. United States ........................................................................................21

Illinois v. Krull.....................................................................................................22

3. Impeachment Purposes .................................................................... 23

Walder v. United States......................................................................................23

United States v. Havens.....................................................................................24

James v. Illinois ..................................................................................................26

4. Independent Source ......................................................................... 27

Murray v. United States .....................................................................................27

5. Inevitable Discovery......................................................................... 28

Nix v. Williams ....................................................................................................28

6. Other Hearings................................................................................. 29

United States v. Calandra..................................................................................29

Table of Contents iii
Pennsylvania Board of Probation and Parole v. Scott .......................................30

II. WHAT IS A SEARCH?..........................................................31

Olmstead v. United States..................................................................................31

Katz v. United States..........................................................................................32

United States v. Jones........................................................................................33

A. Applies to Government Activities Only .....................................34

New Jersey v. T.L.O............................................................................................34

Coolidge v. New Hampshire ...............................................................................35

Gouled v. United States......................................................................................36

B. Reasonable Expectation of Privacy ...........................................37

California v. Ciraolo............................................................................................37

Dow Chemical Co. v. United States....................................................................37

Florida v. Riley....................................................................................................38

United States v. Chadwick.................................................................................39

Illinois v. Andreas...............................................................................................40

United States v. Karo..........................................................................................42

Cardwell v. Lewis ...............................................................................................43

Kyllo v. United States .........................................................................................44

Hoffa v. United States ........................................................................................45

Minnesota v. Olson .............................................................................................46

Minnesota v. Carter ............................................................................................47

O’Connor v. Ortega .............................................................................................48

City of Ontario v. Quon.......................................................................................50

Hudson v. Palmer ...............................................................................................51

Maryland v. Macon.............................................................................................52

New York v. Class ..............................................................................................53

Bond v. United States.........................................................................................54

United States v. Place.........................................................................................55

1. Open Fields ...................................................................................... 57

Hester v. United States.......................................................................................57

Oliver v. United States........................................................................................58

United States v. Dunn.........................................................................................59

2. Abandoned Property......................................................................... 60

California v. Greenwood.....................................................................................60

Abel v. United States ..........................................................................................61

3. Foreign Searches.............................................................................. 62

United States v. Verdugo-Urquidez ....................................................................62

4. Private Intrusions ............................................................................ 63

United States v. Jacobsen..................................................................................63

Walter v. United States.......................................................................................64

5. Third Party Control.......................................................................... 65

United States v. Miller ........................................................................................65

Smith v. Maryland ..............................................................................................66

iv Table of Contents
III. WHAT IS A SEIZURE?......................................................67

California v. Hodari ............................................................................................67

Brower v. Inyo County........................................................................................68

Michigan v. Chesternut.......................................................................................69

Brendlin v. California .........................................................................................70

Florida v. Bostick................................................................................................71

United States v. Drayton ....................................................................................72

Soldal v. Cook County ........................................................................................73

A. ARRESTS ..................................................................................74

Atwater v. City of Lago Vista .............................................................................74

1. Premises .......................................................................................... 75

Payton v. New York ............................................................................................75

New York v. Harris .............................................................................................76

Kirk v. Louisiana.................................................................................................78

2. Third Party Premises........................................................................ 79

Steagald v. United States ...................................................................................79

Pembaur v. Cincinnati ........................................................................................80

3. Arrest Warrants................................................................................ 81

Whiteley v. Warden ............................................................................................81

United States v. Watson .....................................................................................82

Maryland v. Buie ................................................................................................84

B. STOPS.......................................................................................85

1. Generally.......................................................................................... 85

Terry v. Ohio .......................................................................................................85

Davis v. Mississippi............................................................................................87

Florida v. Royer ..................................................................................................88

2. Terry and Traffic Stops .................................................................... 90

Delaware v. Prouse.............................................................................................90

United States v. Sharpe......................................................................................91

Illinois v. Caballes ..............................................................................................92

Pennsylvania v. Mimms......................................................................................93

Maryland v. Wilson.............................................................................................94

United States v. Hensley....................................................................................95

Hayes v. Florida .................................................................................................97

3. Stops at the Border .......................................................................... 98

United States v. Montoya de Hernandez ...........................................................98

Almeida-Sanchez v. United States ...................................................................100

United States v. Martinez-Fuerte......................................................................101

United States v. Brignoni-Ponce .......................................................................102

Table of Contents v
IV. LEVELS OF SUSPICION .................................................103

A. PROBABLE CAUSE ..................................................................103

Ornelas v. United States...................................................................................103

Henry v. United States .....................................................................................104

Draper v. United States ....................................................................................105

Sibron v. New York ...........................................................................................107

Peters v. New York............................................................................................108

Maryland v. Pringle ..........................................................................................109

Florida v. Harris................................................................................................110

B. REASONABLE SUSPICION .......................................................111

Adams v. Williams............................................................................................111

Brown v. Texas .................................................................................................112

United States v. Sokolow..................................................................................113

Alabama v. White .............................................................................................114

Florida v. J. L....................................................................................................115

Navarette v. California......................................................................................116

Illinois v. Wardlow............................................................................................118

United States v. Arvizu.....................................................................................119

V. SEARCH WARRANTS ........................................................120

A. PROBABLE CAUSE ..................................................................120

1. Required ........................................................................................ 120

Byars v. United States......................................................................................120

Winston v. Lee ..................................................................................................121

2. Establishing P.C. in the Affidavit ................................................... 122

United States v. Ventresca ...............................................................................122

Aguilar v. Texas ................................................................................................124

Spinelli v. United States ...................................................................................125

Illinois v. Gates .................................................................................................126

United States v. Harris .....................................................................................127

United States v. Grubbs ...................................................................................128

3. Neutral and Detached Magistrate ................................................... 129

Connelly v. Georgia ..........................................................................................129

Lo-Ji Sales, Inc. v. New York............................................................................130

4. With Particularity .......................................................................... 131

Andresen v. Maryland......................................................................................131

Stanford v. Texas..............................................................................................132

Groh v. Ramirez ................................................................................................133

Messerschmidt v. Millender..............................................................................135

Maryland v. Garrison .......................................................................................136

Steele v. United States......................................................................................137

vi Table of Contents
B. SERVING THE WARRANT ........................................................138

1. Knock and Announce (18 U.S.C. § 3109)........................................ 138

Sabbath v. United States..................................................................................138

Wilson v. Arkansas...........................................................................................139

Hudson v. Michigan..........................................................................................140

Richards v. Wisconsin ......................................................................................141

United States v. Ramirez ..................................................................................142

United States v. Banks.....................................................................................143

2. Persons at the Premises ................................................................. 144

Michigan v. Summers .......................................................................................144

Muehler v. Mena ...............................................................................................146

Bailey v. United States .....................................................................................147

Los Angeles County v. Rettele..........................................................................148

Ybarra v. Illinois ...............................................................................................149

Illinois v. McArthur............................................................................................151

3. Associated Issues ........................................................................... 152

United States v. Van Leeuwen .........................................................................152

Segura v. United States....................................................................................153

Sgro v. United States ........................................................................................154

Gooding v. United States ..................................................................................155

Dalia v. United States.......................................................................................156

Franks v. Delaware ..........................................................................................157

Wilson v. Layne ................................................................................................158

Hanlon v. Berger...............................................................................................159

VI. SEARCH WARRANT EXCEPTIONS - NEED P.C................160

A. PLAIN VIEW ............................................................................160

Horton v. California ..........................................................................................160

Arizona v. Hicks................................................................................................161

Texas v. Brown.................................................................................................162

B. MOBILE CONVEYANCES..........................................................163

Carroll v. United States ....................................................................................163

Chambers v. Maroney ......................................................................................164

United States v. Ross .......................................................................................165

Michigan v. Thomas..........................................................................................166

Florida v. Myers................................................................................................167

United States v. Johns......................................................................................168

Pennsylvania v. Labron....................................................................................169

Maryland v. Dyson ...........................................................................................170

California v. Carney .........................................................................................171

California v. Acevedo........................................................................................172

Wyoming v. Houghton ......................................................................................173

C. DESTRUCTION OF EVIDENCE .................................................174

Kentucky v. King...............................................................................................174

Cupp v. Murphy ................................................................................................176

Schmerber v. California....................................................................................177

Table of Contents vii
Missouri v. McNeely..........................................................................................178

D. HOT PURSUIT .........................................................................180

Warden v. Hayden............................................................................................180

Welsh v. Wisconsin...........................................................................................181

United States v. Santana .................................................................................182

E. EMERGENCY SCENES.............................................................183

Michigan v. Tyler ..............................................................................................183

Michigan v. Clifford...........................................................................................185

Mincey v. Arizona .............................................................................................186

Thompson v. Louisiana.....................................................................................187

Flippo v. West Virginia......................................................................................189

Brigham City v. Stuart......................................................................................190

Michigan v. Fisher ............................................................................................191

Ryburn v. Huff ..................................................................................................192

VII. SEARCH WARRANT EXCEPTIONS - P.C. NOT NEEDED...193

A. FRISKS ...................................................................................193

Arizona v. Johnson ...........................................................................................193

Michigan v. Long...............................................................................................194

Minnesota v. Dickerson ....................................................................................195

B. SEARCHES INCIDENT TO ARREST..........................................197

United States v. Chadwick...............................................................................197

1. Premises ........................................................................................ 198

Go-Bart Importing Co. v. United States ............................................................198

Chimel v. California..........................................................................................198

Agnello v. United States ...................................................................................200

Shipley v. California .........................................................................................201

Vale v. Louisiana ..............................................................................................202

2. Persons .......................................................................................... 203

United States v. Robinson ................................................................................203

United States v. Edwards ................................................................................203

Virginia v. Moore...............................................................................................204

Florence v. County of Burlington......................................................................206

Maryland v. King ..............................................................................................207

3. Cell Phones .................................................................................... 208

Riley v. California (consolidated with U.S. v. Wurie) .......................................208

4. Vehicles ......................................................................................... 210

Arizona v. Gant.................................................................................................210

New York v. Belton ...........................................................................................211

Preston v. United States ...................................................................................213

Thornton v. United States.................................................................................214

Knowles v. Iowa ...............................................................................................214

viii Table of Contents
C. CONSENT................................................................................216

United States v. Mendenhall ............................................................................216

Schneckloth v. Bustamonte ..............................................................................217

Ohio v. Robinette...............................................................................................218

Frazier v. Cupp .................................................................................................219

Georgia v. Randolph .........................................................................................220

Fernandez v. California....................................................................................221

United States v. Matlock...................................................................................222

Chapman v. United States ...............................................................................223

Stoner v. California...........................................................................................224

Illinois v. Rodriguez ..........................................................................................224

Bumper v. North Carolina.................................................................................226

Lewis v. United States......................................................................................227

Florida v. Jimeno ..............................................................................................228

Florida v. Jardines............................................................................................229

D. INVENTORIES .........................................................................230

South Dakota v. Opperman ..............................................................................230

Harris v. United States .....................................................................................231

Colorado v. Bertine ...........................................................................................232

Cooper v. California..........................................................................................233

Illinois v. Lafayette ...........................................................................................234

Florida v. Wells .................................................................................................235

E. INSPECTIONS .........................................................................236

1. Structures ...................................................................................... 236

See v. City of Seattle.........................................................................................236

Camara v. Municipal Court ..............................................................................237

Marshall v. Barlow’s Inc...................................................................................238

Donovan v. Dewey............................................................................................239

New York v. Burger...........................................................................................241

United States v. Biswell ...................................................................................243

2. Vehicles ......................................................................................... 244

Michigan v. Sitz.................................................................................................244

City of Indianapolis v. Edmond........................................................................245

Illinois v. Lidster ...............................................................................................246

3. Parolees ......................................................................................... 248

United States v. Knights...................................................................................248

Samson v. California ........................................................................................249

4. Special Needs of the Government................................................... 250

Skinner v. Railway Labor Executives’ Association..........................................250

National Treasury Employees Union v. Von Raab...........................................251

Ferguson v. City of Charleston.........................................................................253

Vernonia School District v. Acton .....................................................................254

Board of Education v. Earls .............................................................................255

Chandler v. Miller .............................................................................................256

Wyman v. James ..............................................................................................257

Table of Contents ix
5. Border Inspections......................................................................... 258

United States v. Ramsey ..................................................................................258

United States v. Flores-Montano ......................................................................259

Abel v. United States ........................................................................................260

VIII. RELATED SEARCH AND SEIZURE ISSUES .....................261

A. OFFICER’S INTENT.................................................................261

Whren v. United States.....................................................................................261

Devenpeck v. Alford..........................................................................................262

Arkansas v. Sullivan ........................................................................................264

B. OTHER ISSUES .......................................................................265

G. M. Leasing Corp. v. United States ...............................................................265

Florida v. White.................................................................................................266

Kolender v. Lawson..........................................................................................267

Hiibel v. Sixth Judicial Dist. Court ...................................................................268

Gerstein v. Pugh................................................................................................269

Zurcher v. Stanford Daily .................................................................................270

A Quantity of Copies of Books v. Kansas ........................................................271

IX. THE FIFTH AMENDMENT ..............................................273

A. INTRODUCTORY ISSUES.........................................................273

Malloy v. Hogan................................................................................................273

Corley v. United States.....................................................................................273

Brogan v. United States....................................................................................275

Mitchell v. United States...................................................................................275

B. FOURTH AMENDMENT VIOLATIONS .......................................277

Dunaway v. New York......................................................................................277

New York v. Harris ...........................................................................................278

Brown v. Illinois................................................................................................279

Kaupp v. Texas .................................................................................................281

C. DUE PROCESS ........................................................................282

Foster v. California ...........................................................................................282

Stovall v. Denno................................................................................................283

Neil v. Biggers...................................................................................................284

Perry v. New Hampshire ..................................................................................286

Simmons v. United States ................................................................................287

Manson v. Brathwaite ......................................................................................288

D. TESTIMONIAL EVIDENCE .......................................................289

Schmerber v. California....................................................................................289

United States v. Dionisio ..................................................................................290

United States v. Mara.......................................................................................291

1. Compelled ...................................................................................... 292

Brown v. Mississippi ........................................................................................292

Andresen v. Maryland......................................................................................293

x Table of Contents
United States v. Doe .........................................................................................293

United States v. Hubbell...................................................................................295

United States v. Balsys ....................................................................................297

2. Holder of the Privilege ................................................................... 298

Braswell v. United States.................................................................................298

Couch v. United States .....................................................................................299

Doe v. United States .........................................................................................299

Fisher v. United States .....................................................................................300

Bellis v. United States ......................................................................................301

E. VOLUNTARY ...........................................................................303

Rogers v. Richmond..........................................................................................303

Lynumn v. Illinois .............................................................................................304

Colorado v. Connelly.........................................................................................305

Arizona v. Fulminante ......................................................................................306

Beecher v. Alabama..........................................................................................307

Haynes v. Washington .....................................................................................308

Townsend v. Sain .............................................................................................308

Lego v. Twomey ................................................................................................309

Spano v. New York ...........................................................................................310

F. IMMUNITY ..............................................................................311

Murphy et. al. v. Waterfront Commission of New York Harbor .......................311

Kastigar v. United States .................................................................................312

Ohio v. Reiner ...................................................................................................314

G. MIRANDA v. ARIZONA.............................................................315

Miranda v. Arizona ...........................................................................................315

Dickerson v. United States ...............................................................................316

Florida v. Powell ...............................................................................................317

1. Police ............................................................................................. 318

Illinois v. Perkins...............................................................................................318

Arizona v. Mauro...............................................................................................319

2. Custody.......................................................................................... 320

Berkemer v. McCarty........................................................................................320

Pennsylvania v. Bruder ....................................................................................321

Oregon v. Mathiason.........................................................................................322

Beckwith v. United States ................................................................................323

Orozco v. Texas.................................................................................................325

Mathis v. United States ....................................................................................326

Howes v. Fields ................................................................................................327

Stansbury v. California ....................................................................................328

California v. Beheler .........................................................................................330

Thompson v. Keohane ......................................................................................331

Yarborough v. Alvarado....................................................................................332

J. D. B. v. North Carolina..................................................................................333

3. Interrogation.................................................................................. 334

Rhode Island v. Innis........................................................................................334

Pennsylvania v. Muniz .....................................................................................335

Table of Contents xi
4. Right to Silence ............................................................................. 337

Salinas v. Texas ...............................................................................................337

Berghuis v. Thompkins.....................................................................................338

Jenkins v. Anderson.........................................................................................339

Fletcher v. Weir .................................................................................................340

United States v. Hale........................................................................................341

Doyle v. Ohio.....................................................................................................342

Michigan v. Mosley ...........................................................................................342

5. Right to Counsel ............................................................................ 344

Edwards v. Arizona..........................................................................................344

Arizona v. Roberson..........................................................................................345

Minnick v. Mississippi ......................................................................................346

Maryland v. Shatzer .........................................................................................347

Davis v. United States ......................................................................................349

Smith v. Illinois .................................................................................................350

McNeil v. Wisconsin ..........................................................................................351

Oregon v. Bradshaw.........................................................................................352

6. Waiver ............................................................................................ 354

Colorado v. Spring ............................................................................................354

Connecticut v. Barrett.......................................................................................355

California v. Prysock.........................................................................................356

Duckworth v. Eagan .........................................................................................357

North Carolina v. Butler....................................................................................358

Oregon v. Elstad ...............................................................................................359

Missouri v. Seibert, ...........................................................................................360

Bobby v. Dixon..................................................................................................362

Michigan v. Tucker............................................................................................363

United States v. Patane ....................................................................................364

Chavez v. Martinez ...........................................................................................365

Moran v. Burbine ..............................................................................................366

7. Government Employees ................................................................. 368

Gardner v. Broderick ........................................................................................368

Garrity v. New Jersey.......................................................................................369

Kalkines v. United States .................................................................................370

Lefkowitz v. Turley ...........................................................................................371

LaChance v. Erickson.......................................................................................372

NASA v. FLRA ...................................................................................................373

8. Miranda Exceptions ....................................................................... 374

Harris v. New York ...........................................................................................374

New York v. Quarles.........................................................................................375

X. SIXTH AMENDMENT RIGHT TO COUNSEL ........................377

A. ATTACHMENT OF RIGHT........................................................377

Kirby v. Illinois..................................................................................................377

Montejo v. Louisiana.........................................................................................377

Rothgery v. Gillespie County............................................................................378

United States v. Gouveia..................................................................................379

xii Table of Contents
B. CRITICAL STAGES ..................................................................380

1. Questioning.................................................................................... 380

Brewer v. Williams............................................................................................380

Patterson v. Illinois ...........................................................................................382

United States v. Henry .....................................................................................384

Kuhlmann v. Wilson .........................................................................................385

Fellers v. United States.....................................................................................386

2. Lineups .......................................................................................... 387

Gilbert v. California...........................................................................................387

United States v. Wade ......................................................................................388

C. RIGHT TO COUNSEL ...............................................................388

Massiah v. United States .................................................................................388

D. CRIME SPECIFIC ....................................................................390

Maine v. Moulton...............................................................................................390

Texas v. Cobb ...................................................................................................391

E. CONFRONTATION CLAUSE......................................................392

Melendez-Diaz v. Massachusetts .....................................................................392

Bullcoming v. New Mexico ................................................................................393

Michigan v. Bryant ...........................................................................................394

Hardy v. Cross..................................................................................................395

XI. ADDITIONAL CASES OF INTEREST................................397

A. USE OF FORCE .......................................................................397

Graham v. Connor ............................................................................................397

Tennessee v. Garner.........................................................................................399

Scott v. Harris ...................................................................................................401

Plumhoff v. Rickard ..........................................................................................403

Saucier v. Katz..................................................................................................405

B. CIVIL LIABILITY .....................................................................407

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics ...407

County Of Sacramento v. Lewis .......................................................................408

Malley v. Briggs ................................................................................................410

Reichle v. Howards...........................................................................................411

Wood v. Moss....................................................................................................412

Millbrook v. United States ................................................................................414

C. BRADY MATERIAL ..................................................................416

Brady v. Maryland ...........................................................................................416

Banks v. Dretke ................................................................................................417

Giglio v. United States ......................................................................................418

Smith v. Cain ....................................................................................................419

Table of Contents xiii
XII. OTHER CASES ..............................................................420

Riverside v. McLaughlin ...................................................................................420

Sanchez-Llamas v. Oregon...............................................................................421

Snyder v. Phelps...............................................................................................422

Smith v. United States ......................................................................................423

XIII. ADDITIONAL RESOURCES..........................................425

A. The United States Constitution ..............................................425

B. Use of Race and other Factors by Federal Law Enforcement 

Agencies .................................................................................449

C. Legal Ethics for Investigative Agents ......................................465

D. Consensual Monitoring ...........................................................475

E. Giglio Policy ...........................................................................487

F. Glossary of Terms ...................................................................494

G. Wray Memorandum on Garrity / Kalkines Warnings ...............497

H. Fisher Letter on Garrity / Kalkines Warnings .........................502

I. DHS - Use of Deadly Force Policy............................................504

J. DHS – Public Safety Exception Policy .....................................508

K. Guidance for Prosecutors Regarding Criminal Discovery.........510

L. Use, Preservation and Disclosure of eCommunications in 

Federal Criminal Cases ...........................................................522

M. Memo Concerning Electronic Recording of Statements...........532

N. Table of Cases .........................................................................539

xiv Table of Contents
I. Fourth Amendment - Exclusionary Rule

A. Origins

Weeks v. United States

 232 U.S. 383, 34 S. Ct. 341 (1914)

FACTS: Local police officers arrested the defendant without 

a warrant at his place of employment. Other officers went to his 

home. After a neighbor told the officers where the defendant 

secreted a key, they entered the house. The officers searched 

and found evidence of gambling paraphernalia that they turned 

over to the U.S. Marshal. Later that day, the Marshal returned 

to the house and found additional evidence. Neither the 

Marshal nor the local officers had a search warrant. The 

government used this evidence to convict the defendant of using 

the mails to transport gambling paraphernalia.

ISSUE: Whether the evidence seized by the U.S. Marshal 

was admissible?

HELD: No. As the evidence was obtained through 

unconstitutional means, it was not admissible.

DISCUSSION: An official of the United States seized the 

evidence acting under the color of office in direct violation of the 

Fourth Amendment. The Supreme Court held the federal 

government could not use unreasonably obtained evidence in a 

federal courtroom. However, the fruit of the first search 

conducted by the state officers was admissible. “As the Fourth 

Amendment is not directed to the individual misconduct of such 

officials [state and local police officers],” the fruits of the state 

search were admissible in a federal trial.

NOTE: The Fourth Amendment would not be completely 

applicable to state actions until the Mapp v. Ohio decision in 

1961.



Fourth Amendment 1
Elkins v. United States

 364 U.S. 206, 80 S. Ct. 1437 (1960)

FACTS: State officers, having received information that the 

defendants possessed obscene motion pictures, obtained a 

search warrant for the defendant’s house. The officers did not 

find any obscene pictures but they found various paraphernalia 

they believed was used to make illegal wiretaps. A state court 

held that the search was illegal under state law. During these 

state proceedings, federal officers, acting under a federal search 

warrant, obtained the items in state custody. Shortly after that, 

state officials abandoned their case and federal agents obtained 

a federal indictment.

ISSUE: Whether evidence obtained because of an 

unreasonable search and seizure by state officers, 

without involvement of federal officers, is 

admissible in a federal criminal trial?

HELD: No. Evidence obtained because of an unreasonable 

search and seizure by state officers is inadmissible 

in a federal criminal trial.

DISCUSSION: The Supreme Court created the exclusionary 

rule to prevent, not repair. Its purpose is to deter unreasonable 

activity - to compel respect for the constitutional guaranty to be 

free from unreasonable searches in the only effective way - by 

removing the incentive to disregard it. Evidence obtained by 

state officers during a search that, if conducted by federal 

officers, would have violated the Fourth Amendment, is 

inadmissible in a federal criminal trial.



Mapp v. Ohio

 367 U.S. 643, 81 S. Ct 1684 (1961)

FACTS: Three police officers arrived at the defendant’s 

home pursuant to information that “a person [was] hiding out 

in the home, who was wanted for questioning in connection 

2 Fourth Amendment
with a recent bombing, and that there was a large amount of 

policy paraphernalia being hidden in the home.” The officers 

knocked on the door and demanded entry. The defendant, after 

telephoning her attorney, refused to admit them without a 

search warrant.

Three hours later, the officers (now with four additional officers) 

again sought entry. When the defendant did not immediately 

come to the door, the officers forcibly opened at least one door 

to the house. Upon confronting the defendant, she demanded 

to see the search warrant. One officer held up a paper claimed 

to be a warrant. The defendant grabbed the “warrant” and 

placed it in her bosom. A struggle followed in which the officers 

recovered the piece of paper. They handcuffed the defendant 

because she had been “belligerent” in resisting their official 

rescue of the “warrant” from her person. Running roughshod 

over the defendant, a police officer “grabbed” her, “twisted” [her] 

hand, and she “yelled [and] pleaded with him” because “it was 

hurting.” The officers discovered the obscene materials for 

which she was ultimately convicted of possessing in the course 

of a widespread search. At trial, the officers produced no 

search warrant, nor was the failure to produce one explained.

ISSUE: Whether the Fourth Amendment applies to state 

actions?

HELD: Yes. The Supreme Court made the Fourth 

Amendment and the exclusionary rule applicable to 

the states.

DISCUSSION: The Fourth Amendment right of privacy is 

enforceable against state actions through the due process 

clause of the Fourteenth Amendment. State officers were now 

regulated by the restrictions found in the Fourth Amendment.



Fourth Amendment 3
B. Fruit of the Poisonous Tree

Silverthorne Lumber Co. v. United States

 251 U.S. 385, 40 S. Ct. 182 (1920)

FACTS: Silverthorne was indicted and arrested. While he 

was being detained, DOJ representatives and the U. S. Marshal 

went to his corporate office. Without authority, they confiscated 

and copied his records. The federal trial court held that the 

officers unconstitutionally obtained the records and ordered 

their return. Based on the copies, the government obtained a 

new indictment, and served the defendant a subpoena for the 

original records.

ISSUES: 1. Whether the government can use information 

obtained from an illegal search and seizure to 

secure other evidence?

2. Whether the Fourth Amendment protects 

Corporations against unlawful searches and 

seizures? 

HELD: 1. No. The government may not use illegally 

obtained evidence to gain additional evidence.

2. Yes. Corporations are protected by the 

Fourth Amendment.

DISCUSSION: Information gained by the government’s 

unlawful search and seizure may not be used as a basis to 

subpoena that information. The essence of a rule prohibiting 

the acquisition of evidence in an illegal way is that it cannot be 

used at all. This is the “Fruit of the Poisonous Tree” doctrine. 

This doctrine prohibits law enforcement officers from doing 

indirectly what they are prohibited from doing directly. Also, 

the Court held that corporations enjoy a right be free from 

unreasonable searches and seizures.



4 Fourth Amendment
Nardone v. United States

 308 U.S. 338, 60 S. Ct. 266 (1939)

FACTS: The government convicted the defendant of fraud, 

based on evidence secured through a wiretap. The conviction 

was reversed on appeal because the wiretap violated federal law. 

At the second trial, the government did not introduce the 

evidence from the wiretap. However, the defendant was again 

convicted. On appeal, he argued that the trial court should 

have suppressed much of the evidence against him, because the 

government would not have learned about it but for the fact 

that they had performed the original illegal wiretap. 

ISSUE: Whether courts must exclude all evidence that the 

government gained directly and indirectly from an 

illegal search?

HELD: No. If the government performs an illegal search, 

and the information learned eventually led it to 

other evidence, that evidence may still be 

introduced, if the connection between that evidence 

and the illegal search is distant and tenuous. 

DISCUSSION: If the only reason that the government has a 

particular piece of evidence is that it performed an illegal 

search, then a court will exclude evidence. However, if the trial 

judge determines that its connection to the illegal search is 

remote, the evidence may still be admissible.



United States v. Ceccolini

 435 U.S. 268, 98 S. Ct. 1054 (1978)

FACTS: The FBI investigated gambling in the defendant’s 

place of business. A year after the FBI ended its surveillance, a 

police officer, while taking a break in the defendant’s flower 

shop, went behind the customer counter to talk to one of the 

employees of the shop. While behind the counter, the officer 

saw an envelope that contained money, lying on the drawer of 

Fourth Amendment 5
the cash register. The officer picked up the envelope and upon 

examination, he found it contained money and gambling slips. 

The officer then placed the envelope back on the register and, 

without telling the employee what he had found, asked her to 

whom the envelope belonged. The employee said the envelope

belonged to the defendant and that she had instructions to give 

it to someone. The officer’s finding was reported to local 

detectives and to the FBI. Four months later, officers 

interviewed the employee. Six months later, the defendant 

testified before the grand jury that he had never taken wagers 

at his flower shop. The employee testified to the contrary, and 

the government indicted the defendant for perjury.

ISSUES: Whether the employee’s testimony was inadmissible 

as “fruit of the poisonous tree?”

HELD: No. The employee’s testimony was admissible as 

the illegal search was attenuated as to the 

employee’s statements.

DISCUSSION: The time lapse between the officer’s illegal 

search of the envelope and the store clerk’s testimony as to the 

defendant’s activities was significant. This attenuation was 

sufficient to evaporate the connection between the illegality and 

the testimony so as to render the testimony admissible. A 

substantial period of time elapsed between the illegal search 

and initial contact with the store clerk who was present at the 

time of the search. The clerk’s testimony was an act of her own 

free will and was not coerced or induced by official authority 

because of the illegal search. 



United States v. Crews

 445 U.S. 463, 100 S. Ct. 1244 (1980)

FACTS: The defendant was seen in the general area of some 

recent crimes. He resembled a police “lookout” that described 

the perpetrator. An eyewitness to one of the crimes tentatively 

identified the defendant to a law enforcement officer as he left a 

6 Fourth Amendment
nearby restroom.

The officers detained the defendant and summoned the 

detective assigned to the robberies. Upon his arrival ten to 

fifteen minutes later, his attempt to take a photograph of the 

defendant was thwarted by the inclement weather. The officers 

then took the defendant into custody, ostensibly because he 

was a suspected truant. The officers took a photograph of the 

defendant at the station.

The following day, the police showed the first victim a photo 

display including a photo of the defendant. She immediately 

selected the defendant as her assailant. Later, another victim 

made a similar identification. The officers arrested the 

defendant. At a court-ordered lineup, the two women who had 

previously made the photographic identifications positively 

identified the defendant as their assailant. The defendant was 

later identified in court by the two witnesses.

ISSUE: Whether the in-court identification was tainted by 

the identifications made through the illegal seizure?

HELD: No. In-court identification can be tainted by 

identifications made through an illegal seizure; 

however, in this instance, the eyewitness’ 

identification was not the result of the illegal 

seizure.

DISCUSSION: The police knew the victim’s identity before 

the arrest and was not discovered because of the unlawful 

seizure. Also, the unlawful police conduct did not bias the 

victim’s capacity to identify the perpetrator of the crime. 

“The exclusionary rule enjoins the Government from benefiting 

from evidence it has unlawfully obtained; it does not reach 

backward to taint information that was in official hands prior to 

any illegality. . . . The pretrial identification obtained through 

use of the photograph taken during defendant’s illegal detention 

cannot be introduced; but the in-court identification is 

admissible . . . because the police’s knowledge of defendant’s 

Fourth Amendment 7
identity and the victim’s independent recollections of him both 

antedated the unlawful arrest and were thus untainted by the 

constitutional violation.”



Taylor v. Alabama

 457 U.S. 687, 102 S. Ct. 2664 (1982)

FACTS: After a robbery, an incarcerated individual told police 

that he had heard that the defendant was involved. Based on 

this information, two officers arrested the defendant without a 

warrant, searched him, fingerprinted him, questioned him, and 

placed him a lineup. Subsequently, the police matched the 

defendant’s fingerprints with those found on items that had 

been handled by one of the robbers. Once told of this, the 

defendant waived his rights and confessed. A court found that 

the tip from the incarcerated individual was insufficient to give 

police probable cause to obtain a warrant or to arrest petitioner. 

ISSUE: Whether the confession obtained from the 

defendant was the fruit of an illegal seizure?

HELD: Yes. The initial fingerprints, which were themselves 

the fruit of an illegal arrest, and which were used to 

extract a confession from petitioner, were not 

sufficiently attenuated to break the connection 

between the illegal arrest and the confession.

DISCUSSION: The Court held that a confession obtained 

through custodial interrogation after an illegal arrest should be 

excluded unless intervening events break the causal connection 

between the illegal arrest and the confession. The Court 

identified several factors that should be considered in 

determining whether a confession has been purged of the taint 

of the illegal arrest: time between the arrest and the confession, 

the presence of intervening circumstances, and, particularly, 

the purpose and flagrancy of the official misconduct. The 

government bears the burden of proving that a confession is 

admissible.

8 Fourth Amendment
Here, there was no meaningful intervening event. The illegality 

of the initial arrest was not cured by the facts that six hours 

elapsed between the arrest and confession, that the confession 

was “voluntary” for Fifth Amendment purposes because 

Miranda warnings were given; that the defendant was permitted 

a short visit with his girlfriend; or that the police did not 

physically abuse petitioner. Nor was the fact that an arrest 

warrant, based on a comparison of fingerprints, was filed after 

the defendant had been arrested.



Trupiano v. United States

 334 U.S. 699, 68 S. Ct. 1229 (1948)

FACTS: A Federal agent illegally seized evidence of an illicit 

alcohol still. The Supreme Court held that the officer had 

ample time to secure a search warrant and failed to do so.

ISSUE: Whether the defendant is entitled to the return of 

his contraband property?

HELD: No. The exclusionary rule prohibits the government 

from using illegally obtained evidence in its case-inchief against the defendant. It does not compel the 

government to return contraband to the defendant.

DISCUSSION: Where officers illegally seize property in 

violation of the Fourth Amendment that is contraband, the 

owner is not entitled to its return. The exclusionary rule only 

entitles the defendant to have the unlawfully seized property 

suppressed as evidence.



Fourth Amendment 9
C. Exceptions

1. No Standing to Object

Rawlings v. Kentucky

 448 U.S. 98, 100 S. Ct. 2556 (1980)

FACTS: Police officers, armed with an arrest warrant for 

Marquess, lawfully entered his house. Another resident of the 

house and four visitors (including the defendant) were present. 

While searching the house unsuccessfully for Marquess, several 

officers smelled marihuana and saw marihuana seeds. Two 

officers left to obtain a search warrant and the other officers 

detained the occupants, allowing them to leave only if they 

consented to a body search. About forty-five minutes later, the 

officers returned with the search warrant for the premises. Cox, 

a visitor, was ordered to empty her purse, which contained 

controlled substances. Cox told the defendant, who was 

standing nearby, “to take what was his.” The defendant 

immediately claimed ownership of the controlled substances. 

ISSUES: Whether the defendant had a right to complain 

about the intrusion into Cox’s purse?

HELD: No. The defendant did not have a reasonable 

expectation of privacy in the purse, and therefore 

had no standing to challenge the illegal search of it.

DISCUSSION: The defendant could not establish that he 

had a reasonable expectation of privacy in Cox’s purse. 

Therefore, he had no standing to object to the search of the 

purse. The fact that the defendant claimed ownership of the 

drugs in the purse did not entitle him to challenge the legality of 

a search of the purse itself. Even assuming the government

violated the defendant’s Fourth Amendment rights by detaining 

him while other officers obtained a search warrant, exclusion of 

the defendant’s admissions would not be necessary unless his 

statements were the direct result of his illegal detention.



10 Fourth Amendment
Rakas v. Illinois

 439 U.S. 128, 99 S. Ct. 421 (1978)

FACTS: After receiving a robbery report, officers stopped the 

suspected getaway car being driven by the owner and in which 

the defendants were passengers. The officers ordered the 

occupants out of the car and searched the interior of the 

vehicle. They discovered a box of rifle shells in the locked glove 

compartment and a sawed-off rifle under the front passenger 

seat. The officers then arrested the defendants. They conceded 

that they did not own the automobile and were simply 

passengers.

ISSUE: Whether the defendants had standing to object to 

the search of the vehicle?

HELD: No. The defendants had no property or privacy 

interest in the interior of the vehicle.

DISCUSSION: The defendants admitted they had neither a 

property nor a possessory interest in the automobile. They had 

no interest in the property seized, and they failed to show any 

reasonable expectation of privacy in the glove compartment or 

under the seat of the vehicle in which they were passengers. 

Therefore, the defendants lacked standing to challenge the 

search of those areas.



Wong Sun v. United States

 371 U.S. 471, 83 S. Ct. 407 (1963)

FACTS: Agents illegally seized Johnny Yee, then “Blackie” 

Toy, who led the agents to Wong Sun’s neighborhood where Toy

pointed out where Wong Sun lived. An agent rang a doorbell, 

identified himself as a narcotics agent to the woman on the 

landing, and asked for “Mr. Wong Sun.” The woman told the 

agent Wong Sun was “in the back room sleeping.” The agent 

and six other officers entered the apartment. One of the officers 

went into the back room and brought Wong Sun from the 

Fourth Amendment 11
bedroom in handcuffs. A thorough search of the apartment 

followed, but the officers did not discover any narcotic; however, 

Wong Sun made incriminating statements to the officers.

The government tried Wong Sun for distribution of narcotics. 

The trial court admitted the government’s evidence over the 

objections by the defense that the following items were fruits of 

unlawful arrests and searches: (1) the statements made orally 

by Toy at the time of his arrest; (2) the heroin surrendered by 

Johnny Yee; (3) Toy’s pretrial unsigned statement; and (4) Wong 

Sun’s statements.

ISSUE: Whether the four items of evidence were admissible 

against the defendant Wong Sun?

HELD: Yes. Wong Sun did not have standing to object to 

the introduction of the first three pieces of evidence 

and Wong Sun’s statements were admissible.

DISCUSSION: A search that is unlawful at its inception is 

not validated by what officers discover in that search. However, 

even though contraband seized by officers is inadmissible 

against one defendant, it is admissible against another who has 

not suffered the unauthorized invasion of his privacy. 

Defendants must have standing to object.

As for the defendant’s statements, “The exclusionary rule has 

no application because the Government learned of the evidence 

from an independent source. . . . We need not hold that all 

evidence is the fruit of the poisonous tree simply because it 

would not have come to light but for the illegal actions of the 

police. Rather, the more apt question in such a case is 

whether, granting establishment of the primary illegality, the 

evidence to which instant objection is made has been come at 

by exploitation of that illegality or instead by means sufficiently 

distinguishable to be purged of the primary taint.” The Court 

held that the illegality that led to the defendant’s statements 

had become attenuated.



12 Fourth Amendment
United States v. Salvucci, Jr.

 448 U.S. 83, 100 S. Ct. 2547 (1980)

FACTS: Salvucci and Zackular were charged with unlawful 

possession of stolen mail. Police officers used a warrant to 

search an apartment rented by Zackular’s mother. The officers

found twelve checks that formed the basis of the indictment. 

Salvucci and Zackular moved to suppress the checks on the 

ground that the affidavit supporting the application for the 

search warrant did not establish probable cause.

ISSUE: Whether the defendants had standing to object to 

the search of the apartment? 

HELD: No. The defendants may claim the benefits of the 

exclusionary rule only if the government has 

violated their Fourth Amendment rights.

DISCUSSION: Legal possession of a seized good is not a 

perfect substitute for determining whether the owner had a 

Fourth Amendment interest. Property ownership is only one 

factor to be considered in determining whether an individual 

has a Fourth Amendment right. Possession of a good may not 

be used as a substitute for a factual finding that the owner had 

a legitimate expectation of privacy in the area searched. 



United States v. Payner

 447 U.S. 727, 100 S. Ct. 2439 (1980)

FACTS: The Internal Revenue Service launched an 

investigation into the financial activities of United States 

citizens in the Bahamas. Agents focused their suspicion on the 

Castle Bank. An IRS agent asked Casper, a private investigator 

and occasional informant, to learn what he could about the 

Castle Bank, of which the defendant had been a client. Casper 

cultivated a friendship with a Castle Bank Vice President. 

Casper introduced the Vice President to another private 

investigator, Ms. Kennedy. When Casper learned that the Vice 

Fourth Amendment 13
President intended to spend a few days in Miami, he devised a 

scheme to gain access to bank records the Vice President might 

be carrying in his briefcase. The IRS agent approved the basic 

outline of the plan.

The Vice President arrived in Miami and went directly to Ms. 

Kennedy’s apartment. Shortly after the two left for dinner, 

Casper entered the apartment using a key supplied by Kennedy. 

He removed the briefcase and delivered it to the agent. The 

agent supervised the photocopying of approximately 400 

documents taken from the briefcase. The records were returned 

without the Vice President’s knowledge of their removal. The 

photocopied documents led to the indictment of one of the 

bank’s clients for falsifying his income tax return.

ISSUES: 1. Whether the defendant has standing to object 

to the illegal search and seizure of the Vice 

President’s briefcase?

2. Whether the defendant’s right to due process 

had been violated by the gross illegality of the 

government? 

HELD: 1. No. The defendant does not have standing to 

block the admission of evidence derived 

through violations of the constitutional rights 

of others.

2. No. The defendant’s right to due process was 

not violated by the government’s actions.

DISCUSSION: The defendant had no reasonable expectation 

of privacy in the Castle Bank documents taken from the Vice 

President. He neither owned nor had control over the briefcase. 

Therefore, he has no standing to object to the illegal search and 

seizure of the briefcase.

Although courts should not condone unconstitutional and 

possible criminal behavior by government agents, such behavior 

does not demand the exclusion of evidence in every case of 

14 Fourth Amendment
illegality. Rather, courts must weigh the applicable principles 

against the considerable harm that would flow from 

indiscriminate application of the exclusionary rule.



United States v. Padilla

 508 U.S. 77, 113 S. Ct. 1936 (1993)

FACTS: Officers unreasonably stopped and arrested 

Arciniega, after finding cocaine in a car he drove. They 

subsequently arrested several others connected to the crime, 

including the defendant. The government charged them with 

conspiracy to distribute and possess with intent to distribute 

cocaine. The defendant moved to suppress the evidence 

discovered during the investigation, claiming that it was the 

fruit of an unlawful investigatory stop of a car.

ISSUE: Whether the defendant has the ability to object to 

the illegal search of a co-conspirator’s reasonable 

expectation of privacy?

HELD: No. Expectations of privacy and property interests 

govern the analysis of Fourth Amendment search 

and seizure claims. Participants in a criminal 

conspiracy may have had such expectations or 

interests, but the conspiracy itself neither added to 

nor detracted from them.

DISCUSSION: A defendant can seek the suppression of 

evidence obtained in violation of the Fourth Amendment only if 

that defendant demonstrates that his Fourth Amendment rights 

were violated by the challenged search or seizure. The 

established principle is that suppression of the product of a 

Fourth Amendment violation can be successfully urged only by 

those whose rights were violated by the search itself. Coconspirators and co-defendants are not accorded any special 

standing in establishing a reasonable expectation in each 

other’s privacy.



Fourth Amendment 15
Alderman v. United States

 394 U.S. 165, 89 S. Ct. 961 (1969)

FACTS: The defendants were suspected of transmitting 

information regarding the national defense of the United States 

to a foreign power. One of the defendants discovered that his 

place of business had been subject to electronic surveillance by 

the government. The government admitted that this 

surveillance was unlawful.

ISSUE: Whether the unlawfully obtained information is 

excluded from all the defendants’ trials?

HELD: No. Only the defendant that suffered the 

unreasonable intrusion by the government has 

standing to challenge the use of the evidence.

DISCUSSION: The Court reaffirmed its position that a 

“Fourth Amendment violation can be successfully urged only by 

those whose rights were violated by the search itself, not by 

those who are aggrieved solely by the introduction of damaging 

evidence. Coconspirators and codefendants have been accorded 

no special standing.” The rights found within the Fourth 

Amendment are personal, limiting redress only to the offended 

party. The Court was “not convinced that the additional 

benefits of extending the exclusionary rule to other defendants 

would justify further encroachment upon the public interest in 

prosecuting those accused of crime and having them acquitted 

or convicted on the basis of all the evidence which exposes the 

truth.”



Mancusi v. DeForte

 392 U.S. 364, 88 S. Ct. 2120 (1968)

FACTS: The defendant, a vice president of a union, objected 

to the government’s use of a subpoena to seek union records. 

When the union refused to honor the subpoena, the government 

16 Fourth Amendment
conducted a search and seized records from an office the 

defendant shared with other union officials. The seized records 

were used at trial against the defendant.

ISSUE: Whether the defendant has standing to object to the 

search for union records?

HELD: Yes. The capacity to claim the protection of the 

Fourth Amendment depends upon whether the area

searched was one in which the defendant has a 

reasonable expectation of freedom from 

governmental intrusion.

DISCUSSION: The Court observed the papers in question 

belonged to the union, not the defendant. However, “one with a 

possessory interest in the premises might have standing.” As 

the defendant “shared an office with other union officers” he 

could “reasonably have expected that only those persons and 

their personal or business guests would enter the office, and 

that records would not be touched except with their permission 

or that of union higher-ups.” Therefore, he had a reasonable 

expectation of privacy in the office, and standing to object to the 

search.



2. Good Faith Exception

United States v. Leon

 468 U.S. 897, 104 S. Ct. 3405 (1984)

FACTS: An officer prepared an application for a warrant to 

search several places. The application was reviewed by several 

Deputy District Attorneys, and approved by a state court judge. 

The resulting searches produced large quantities of drugs. The 

government indicted the defendants and they filed motions to 

suppress the evidence seized. An appellate court granted the 

motions in part, concluding that the affidavit was insufficient to 

establish probable cause.

Fourth Amendment 17
ISSUES: Whether a good faith exception to the exclusionary 

rule exists? 

HELD: Yes. Law enforcement officers are entitled to rely 

on judicially signed search warrants in good faith.

DISCUSSION: The exclusionary rule should not apply to 

evidence obtained by officers acting in reasonable reliance on a 

search warrant issued by a detached and neutral magistrate. 

Reasonable minds frequently differ on whether a particular 

search warrant affidavit established probable cause. Officers 

are entitled to rely on the judgment of the issuing magistrate.

However, deference to a magistrate in search warrant matters is 

not boundless. A reviewing court’s deference to a finding of 

probable cause does not preclude its inquiry into the knowing 

or reckless falsity of the affidavit on which probable cause was 

based. A magistrate must perform a neutral and detached 

function and not serve merely as a rubber stamp for the 

government. Suppression is an appropriate remedy if 

information in an affidavit misled the issuing magistrate that 

the affiant knew was false or should have known was false 

(reckless disregard for the truth).



Massachusetts v. Sheppard

 468 U.S. 981, 104 S. Ct. 3424 (1984)

FACTS: The defendant was a suspect in a murder case. An 

officer drafted an affidavit for a search warrant for the 

defendant’s house. As it was Sunday, the local court was 

closed, and the officer had a difficult time finding a warrant 

application form. One officer found a warrant form for a 

controlled substance violation. He proceeded to make changes 

to the form to adapt it to his search but he failed to delete the 

reference to “controlled substance.”

The officer took the affidavit form to the home of a judge. He 

told the judge that the form as presented dealt with controlled 

18 Fourth Amendment
substances and showed the judge where he had crossed out 

subtitles. After unsuccessfully searching for a more suitable 

form, the judge said he would make the necessary changes. 

The judge then took the form, made some changes to it, and 

signed it. However, the judge did not change the section that 

authorized a search for “controlled substances.” Officers

searched the defendant’s house and found several items of 

evidence. At a pretrial suppression hearing, the trial judge 

concluded the warrant violated the Fourth Amendment because 

it did not particularize the items to be seized. However, the 

judge admitted the evidence because the police had acted in 

good faith reliance on the warrant. The defendant was 

convicted.

ISSUES: 1. Whether the officers could reasonably believe 

that the search they conducted was 

authorized by a valid warrant? 

2. Whether the law requires the exclusion of 

evidence seized under a defective warrant 

issued by an appropriate judicial officer? 

HELD: 1. Yes. The officers were justified in believing 

that the search they conducted was 

authorized by a valid warrant.

2. No. The law does not mandate the exclusion 

of evidence seized under a defective warrant.

DISCUSSION: Citing United States v. Leon, the Supreme 

Court held that the exclusionary rule should not be applied 

when the officer conducting the search acted in reasonable 

reliance on a warrant issued by a neutral and detached 

magistrate. The officers took every necessary step that the 

Court could reasonably expect of them. Officers are entitled to 

rely on warrants that they reasonably believe are lawfully 

issued. The exclusionary rule is designed to deter unreasonable 

actions by law enforcement officers.



Fourth Amendment 19
Arizona v. Evans

 514 U.S. 1, 115 S. Ct. 1185 (1995)

FACTS: The defendant was stopped for a routine traffic 

violation. During this encounter, the officer learned of an 

outstanding warrant for the defendant’s arrest. The officer 

arrested the defendant and conducted a search of the 

automobile incident to that arrest, where he found marijuana. 

He charged the defendant with possession of a controlled 

substance. Later, the government learned that a court clerk 

should have previously removed the arrest warrant from the 

computer database. The defendant moved to suppress the 

marijuana as it was the fruit of an unlawful arrest.

ISSUE: Whether the fruit of the poisonous tree doctrine is 

applicable when the officer acted in good faith 

reliance on a computer warrant database? 

HELD: No. The fruit of the poisonous tree doctrine is 

designed to deter the unreasonable actions of law

enforcement officers.

DISCUSSION: Under the framework of the good faith 

exception to the exclusionary rule established by United States 

v. Leon, the rule does not require the suppression of evidence 

seized because of clerical errors of court employees. Exclusion 

is appropriate only if such action serves the remedial objectives 

of the rule. The exclusionary rule is designed to deter police 

misconduct, not mistakes of court employees. In the case at 

hand, there was no unreasonable or illegal police activity that 

needed to be deterred.



Herring v. United States

 555 U.S. 135, 129 S. Ct. 695 (2009)

FACTS: Officers arrested Herring based on an outstanding 

warrant listed in another law enforcement agency’s database. A 

search incident to arrest revealed drugs and a gun. A short 

20 Fourth Amendment
time later, the officers learned the warrant on Herring had been 

recalled months earlier; however, this information had never 

been updated in the agency’s database. The government 

indicted Herring drug and gun charges. Herring moved to 

suppress the evidence on the ground that his arrest had been 

illegal because the warrant had been rescinded. 

ISSUE: Whether the evidence discovered because of the 

unlawful arrest and search of Herring should have 

been suppressed under the exclusionary rule.

HELD: No. When mistakes by officers are the result of 

negligence and not systematic errors or reckless 

disregard of constitutional requirements, the 

exclusionary rule does not apply.

DISCUSSION: The purpose of the exclusionary rule is to 

prevent the use of evidence obtained unlawfully and to deter 

future government misconduct. However, the fact that a Fourth 

Amendment violation occurred, does not necessarily mean the 

exclusionary rule applies. The court noted, “Exclusion (of 

evidence) has always been our last resort, not our first 

impulse.” Hudson v. Michigan. To trigger the exclusionary 

rule, government conduct must be sufficiently deliberate that 

exclusion can meaningfully deter it, and sufficiently culpable 

that such deterrence is worth the price paid by the justice 

system. In this case, there was no evidence that the errors in 

the agency’s arrest warrant database were routine or 

widespread. The arresting officer testified he never had reason 

to question information about a warrant listed in that agency’s 

database. In addition, other officers testified that they could 

remember no similar miscommunication ever happening. 



Davis v. United States

 564 U.S. ___, 131 S. Ct. 2419 (2011)

FACTS: Officers conducted a vehicle search under the 

prevailing law at that time (New York v. Belton), which led to the 

Fourth Amendment 21
arrest of the defendant. The defendant appealed his 

subsequent conviction. Two years after the defendant’s arrest, 

the Supreme Court modified its Belton ruling (Arizona v. Gant).

ISSUE: Whether searches conducted in compliance with 

prevailing law that is later overruled are subject to 

the exclusionary rule?

HELD: No. The purpose of the exclusionary rule is to

discourage law enforcement misconduct, which 

would not be furthered by excluding evidence in 

these cases.

DISCUSSION: The exclusionary rule is a Court created 

mechanism to “deter future Fourth Amendment violations.” 

The Court stated “[F]or exclusion to be appropriate, the 

deterrence benefits of suppression must outweigh its heavy 

costs.” As in this case, where deterrence of officer misconduct 

is not obtainable, the Court will refrain from applying the 

exclusionary rule. Citing Herring v. United States, 555 U.S. 

135 (2009), the Court explained the exclusionary rule should 

only be applied to obtain “meaningful deterrence, and culpable 

enough to be worth the price paid by the justice system.”



Illinois v. Krull

 480 U.S. 340, 107 S. Ct. 1160 (1987)

FACTS: A state statute, as it existed in 1981, required 

licensed motor vehicle and vehicular parts sellers to permit 

state officials to inspect certain records. Pursuant to the 

statute, a police officer entered the defendant’s wrecking yard 

and asked to inspect records of vehicle purchases. The 

defendant stated that the records could not be found but gave 

the officer a list of approximately five purchases. The officer 

received permission from the defendant to look at the cars in 

the yard. He discovered that three were stolen and a fourth had 

its identification number removed. The officer seized the cars 

and arrested the defendant. An appellant court subsequently 

22 Fourth Amendment
held that the statute was unconstitutional because it allowed 

too much discretion in the officers conducting the 

examinations.

ISSUE: Whether the exclusionary rule commands the 

suppression of the evidence?

HELD: No. The Fourth Amendment’s exclusionary rule 

does not apply to evidence obtained by the 

government who acted in objectively reasonable 

reliance upon a statute.

DISCUSSION: The purpose of the exclusionary rule is to 

discourage officers from engaging in unreasonable searches and 

seizures. The application of the exclusionary rule in this case 

would not affect future police misconduct. Officers conducting 

such searches were simply fulfilling their responsibility to 

enforce the statute as written. If a statute is not clearly 

unconstitutional, reviewing courts cannot expect officers to 

question the judgment of the legislature that passed the law.

Applying the exclusionary rule to deter legislative misconduct is 

ineffective. There is also no indication that the exclusion of 

evidence seized pursuant to a statute subsequently declared 

unconstitutional would affect the enactment of similar laws. 

Law enforcement officers, not legislators, are the focus of the 

rule.



3. Impeachment Purposes

Walder v. United States

 347 U.S. 62, 74 S. Ct. 354 (1954)

FACTS: At his trial on the charge of sale of narcotics the 

defendant testified that he never sold or possessed narcotics. 

The government then sought to introduce evidence that it had 

unreasonably seized (a heroin capsule that had been found in 

his possession). The trial judge admitted this evidence over the 

Fourth Amendment 23
defendant’s objection that the police had obtained the heroin 

capsule through an unlawful search and seizure.

ISSUE: Whether unconstitutionally seized evidence is 

admissible for impeachment purposes?

HELD: Yes. The exclusionary rule does not create a license 

for the defendant to commit perjury.

DISCUSSION: The government cannot violate the Fourth 

Amendment and use the fruits of such unlawful conduct to 

secure a conviction. Nor can it use such evidence to support a 

conviction on evidence obtained through leads from the 

unlawfully obtained evidence.

However, the defendant cannot turn the existence of the 

exclusionary rule to his own advantage by using it as a license 

to commit perjury on direct examination. The defendant’s 

assertion on direct examination that he had never possessed 

narcotics opens the door, solely for the purpose of attacking his 

credibility. The illegally seized evidence can be used for 

impeachment purposes.



United States v. Havens

 446 U.S. 620, 100 S. Ct. 1912 (1980)

FACTS: Law enforcement officers stopped a man named 

McLeroth and searched him, finding cocaine in makeshift 

pockets in his underclothes. McLeroth implicated the 

defendant, who was then illegally seized and searched. The 

officers found a tee shirt in the defendant’s luggage from which 

pieces had been cut. These missing pieces matched McLeroth’s 

makeshift pockets. 

The government tried the defendant for conspiracy to import 

cocaine. The trial court suppressed all evidence of the tee shirt 

as the fruit of an illegal search. The defendant testified in his 

own defense. During a proper cross-examination, the 

24 Fourth Amendment
prosecutor asked the defendant if he had anything to do with 

sewing pockets into McLeroth’s underclothes. The defendant 

answered “absolutely not.” 

The prosecutor offered to introduce evidence of the tee shirt for 

the limited purpose of impeaching the defendant’s credibility. 

The court admitted the shirt over defense objections, with an 

instruction to the jury that they could not consider the shirt as 

evidence of a crime, but that they could consider it in deciding 

whether the defendant had testified truthfully.

ISSUE: Whether evidence suppressed as the fruit of an 

unlawful search and seizure may nevertheless be 

used to impeach a defendant’s perjury?

HELD: Yes. Suppressed evidence can be used to impeach 

a defendant who perjures himself.

DISCUSSION: Defendants who lie on the witness stand do 

so at their peril. Our courts work best when witnesses tell the 

truth. Therefore, the courts have developed a strong public 

policy against perjury. 

The exclusionary rule is not constitutionally mandated. Rather, 

it is a creation of case law, designed to discourage officers from 

violating the Constitution. As case law, the exclusionary rule is 

subject to judge-made exceptions based on public policy. 

Here, the Supreme Court decided that the policy against perjury 

is sufficiently strong to limit the action of the exclusionary rule 

to direct evidence against a defendant. If a defendant chooses 

to take the stand and lie, evidence that would normally be 

inadmissible against him will now be admissible for the limited 

purpose of showing that the defendant is not truthful. 



Fourth Amendment 25
James v. Illinois

 493 U.S. 307, 100 S. Ct. 648 (1990)

FACTS: Officers violated the defendant’s Miranda

protections in obtaining his statement. The murder suspect 

stated that on the day of a murder his hair was reddish-brown 

and slicked-back, and that the next day it was dyed black and 

curled. The defendant did not testify at trial but called a family 

friend as a witness. The witness testified that the defendant’s 

hair had been black on the day of the murder. Witnesses for 

the prosecution however, testified that the murderer had 

“reddish” slicked-back hair. The prosecution sought to 

introduce the defendant’s illegally obtained statement to 

impeach the credibility of the defense witness’ testimony.

ISSUE: Whether illegally obtained evidence may be used to 

impeach a defense witness?

HELD: No. Evidence illegally obtained may not be used to 

impeach a defense witness other than the 

defendant.

DISCUSSION: The Court felt that expanding the 

impeachment exception to all defense witnesses would have a 

chilling effect on a defendant’s ability to present his defense for 

three reasons. First, defense witnesses pose difficult 

challenges. Hostile witnesses called by the defense might 

willingly invite impeachment. Friendly defense witnesses might, 

through simple carelessness, subject themselves to 

impeachment. Also, expanding the impeachment exception to 

encompass the testimony of all defense witnesses would 

dissuade some defendants from calling witnesses who would 

otherwise offer probative evidence.

Second, the defendant rarely fears a perjury prosecution since 

the substantive charge is usually much more compelling. A 

witness other than the defendant fears a prosecution for 

perjury. Therefore, the Court’s need to deter perjured testimony

is less than where the witness is the defendant, so that illegally 

obtained evidence can be introduced against them.

26 Fourth Amendment
Third, expansion of the exception would significantly weaken 

the exclusionary rules’ deterrent effect on police misconduct by 

opening the door inadvertently to the admission of any illegally 

obtained evidence. This expansion would enhance the expected 

value to the prosecution of illegally obtained evidence by 

increasing the number of occasions when evidence could be 

used.



4. Independent Source

Murray v. United States

 487 U.S. 533, 108 S. Ct. 2529 (1988)

FACTS: Federal officers developed probable cause that a 

warehouse contained marijuana. Soon thereafter, the officers 

entered the warehouse without a warrant, observed a number of 

burlap-wrapped bales that were later found to contain 

marijuana, and left. The officers kept the premises under 

surveillance. The officers then obtained a warrant to search the 

warehouse; however, they did not mention their prior illegal 

entry or rely on any observations made while inside. With the 

warrant, the officers re-entered the warehouse and seized 

evidence.

ISSUE: Whether the evidence was secured through an 

independent source?

HELD: Yes. The Fourth Amendment does not require the 

suppression of evidence initially discovered during 

an illegal entry if that evidence is also discovered 

during a later search pursuant to a valid warrant 

that is wholly independent of the illegal entry.

DISCUSSION: The exclusionary rule prohibits the 

introduction into evidence, in a criminal prosecution, of tangible 

materials seized during an unlawful search, and of testimony 

concerning knowledge acquired during an unlawful search. The 

Fourth Amendment 27
exclusionary rule also prohibits the introduction of evidence, 

both tangible and testimonial, that is the product of the 

unlawful search.

Neither of those events occurred here. The “independent 

source” doctrine allows evidence secured in connection with a 

violation of the Fourth Amendment to be admissible if that 

evidence was discovered through a source independent of the 

illegality.

The Court held this rule applies to evidence initially obtained 

during an independent lawful search as well as evidence that is 

discovered during an unlawful search but is later obtained 

independently from activities untainted by the illegality. The 

evidence here would be admissible if the second search, 

conducted with a search warrant, was a genuinely independent 

source of that evidence. If the agents’ decision to seek that 

warrant was prompted by what they saw during the illegal entry 

or if information obtained during that entry was presented to 

the reviewing magistrate, independence does not exist.



5. Inevitable Discovery

Nix v. Williams

 467 U.S. 431, 104 S. Ct. 2501 (1984)

FACTS: During the holiday season, a young girl

disappeared from Des Moines, Iowa. Police officers arrested the 

defendant the next day 160 miles away.

After his initial appearance, the officers told the defendant’s 

attorney they would pick up the defendant and return him to 

the appropriate district without questioning him. During the 

return trip one of the officers initiated a conversation with the 

defendant, which resulted in the defendant stating where the 

victim’s body was located. As they approached the location, the 

defendant agreed to take the officers to the child’s body. 

28 Fourth Amendment
At that time, one search team was only two and one-half miles 

from where the defendant soon guided the officers to the body. 

The child’s body was found next to a culvert in a ditch beside a 

gravel road within the search area.

ISSUE: Whether evidence that was about to be discovered 

through lawful channels must be suppressed if it is 

discovered through illegal means?

HELD: No. The evidence derived from the conversation

was admissible as it would have been inevitably 

discovered.

DISCUSSION: The Court held that when illegally seized 

evidence could have been obtained through an independent 

source and efforts are underway that would lead to that 

discovery, exclusion of that evidence is not justified. While the 

independent source exception may not justify the admission of 

evidence here (as the evidence had been removed and could not 

be independently discovered), its rationale is wholly consistent 

with and justifies the adoption of the inevitable discovery 

exception to the exclusionary rule. Unlawfully obtained 

evidence is admissible if ultimately or inevitably it would have 

been discovered by lawful means.



6. Other Hearings

United States v. Calandra

 414 U.S. 338, 94 S. Ct. 613 (1974)

FACTS: Federal officers obtained a warrant to search the 

defendant’s business premises for evidence of illegal gambling 

operations. The warrant specified the object of the search was 

bookmaking records and wagering paraphernalia. The search 

did not reveal any gambling paraphernalia. However, in 

exceeding the scope of the warrant, an officer found an index 

card suggesting that Dr. Walter Loveland had been making 

periodic payments to the defendant. The officer was aware the 

Fourth Amendment 29
U.S. Attorney’s Office was investigating possible violations of 

extortionate credit transactions, and that Dr. Loveland had 

been a victim. The defendant was subpoenaed by a special 

Grand Jury convened to investigate the proliferation of “loan 

sharking” activities. The defendant refused to respond because 

the information identifying him with these activities had been 

illegally obtained.

ISSUE: Whether grand jury witnesses can refuse to answer 

questions on the ground that they were developed

on illegally seized evidence?

HELD: No. The grand jury may question the witness based 

on the illegally obtained material, and the witness 

may not refuse to answer on those grounds.

DISCUSSION: The exclusionary rule does not extend to 

grand jury proceedings. The rationale for this rule is that 

allowing the grand jury witness to invoke the exclusionary rule 

would unduly interfere with the effective and expeditious 

discharge of the grand jury’s duties, and would achieve only a 

speculative and minimal advance of the exclusionary rule’s 

purpose of deterring police that disregard Fourth Amendment 

requirements.



Pennsylvania Board of Probation and Parole v. Scott

 524 U.S. 357, 118 S. Ct. 2014 (1998)

FACTS: The defendant was released from prison on parole. 

Subject to that parole, he signed an express consent to search 

form that permitted parole officers to search his residence 

without a search warrant. Parole officers, acting on this 

consent, found evidence of a parole violation and attempted to 

revoke his parole.

ISSUE: Whether the exclusionary rule applies to parole 

revocation hearings.

30 Fourth Amendment
HELD: No. There is no substantial societal interest 

protected by applying the exclusionary rule to 

parole revocation hearings.

DISCUSSION: The Court stated that the government’s “use 

of evidence obtained in violation of the Fourth Amendment does 

not itself violate the Constitution.” The exclusionary rule’s 

design and intent is to deter illegal searches and seizures but 

does not “proscribe the introduction of illegally seized evidence 

in all proceedings or against all persons.” It is only to be 

employed by the courts where a substantial societal benefit can 

be obtained. The Court was hesitant to extent the exclusionary 

rule matters outside of the criminal courtroom because the 

“[A]pplication of the exclusionary rule would both hinder the 

functioning of state parole systems and alter the traditionally 

flexible, administrative nature of parole revocation proceedings.”



II. What is a Search?

Olmstead v. United States

 277 U.S. 438, 48 S. Ct. 564 (1928)

FACTS: The defendant was the leading figure in a major 

conspiracy. The government, observing that the defendant 

appeared to conduct some of his illegal business through the 

means of a telephone, tapped the telephone to his home and 

office. In doing so, the officers refrained from entering onto the 

defendant’s property, using the public street near his home. 

These wiretaps generated much of the evidence against the 

defendant.

ISSUE: Whether the government conducted a “search” 

within the meaning of the Fourth Amendment?

HELD: No. The Fourth Amendment protects “persons, 

houses papers and effects,” none of which were 

implicated here.

Fourth Amendment 31
DISCUSSION: The Court held that, absent an intrusion onto 

the defendant’s property, no search occurred. While this 

definition of search would be expanded in the Katz decision, at 

the time of the Olmstead ruling, no search occurred unless the 

government intruded into the defendant’s person, home, papers 

or personal effects. The officers in this instance took special 

care not to intrude onto the defendant’s property, so, under the 

only definition of a search at that time, the officers were 

permitted to listen to the defendant’s telephone conversations.

Interestingly, the Court wrote “[C]ongress may of course protect 

the secrecy of telephone messages by making them, when 

intercepted, inadmissible in evidence in federal criminal trials, 

by direct legislation, and thus depart from the common law of 

evidence.” Congress did so in Title III of the Omnibus Crime 

Control and Safe Streets Act of 1968.



Katz v. United States

 389 U.S. 347, 88 S. Ct. 507 (1967)

FACTS: FBI agents overheard conversations of the 

defendant by attaching an electronic listening and recording 

device to the outside of a public telephone booth from which he 

had placed his calls. The defendant was charged with

transmitting wagering information out of state. At the trial, the 

court permitted the government to introduce evidence of the 

defendant’s end of telephone conversations. 

ISSUE: Whether the agents’ actions amounted to a Fourth 

Amendment search?

HELD: Yes. The agents conducted a Fourth Amendment 

search.

DISCUSSION: The Court held that a “search” takes place 

whenever the government intrudes on a reasonable expectation 

of privacy. The Court concluded that the defendant’s 

expectation of privacy was reasonable if he had taken measures 

32 Fourth Amendment
to secure his privacy and the defendant’s expectation of privacy 

met community standards.

What a person seeks to preserve as private, even in an area 

accessible to the public, may be constitutionally protected 

under the Fourth Amendment. A person in a telephone booth 

may rely upon the protection of the Fourth Amendment, and is 

entitled to assume that the words he utters into the mouthpiece 

will not be broadcast to the world.

Once the defendant established he met both prongs, any 

government intrusion into these areas must meet Fourth 

Amendment standards. The Fourth Amendment demands that 

all searches be reasonable. Searches conducted without a 

warrant are presumed to be unreasonable, except for some 

limited well-delineated exceptions. In this case, the agents did 

not have a warrant or valid exception.



United States v. Jones

 565 U.S. ___, 132 S. Ct. 945 (2012)

FACTS: The government attached a global positioning 

device (GPS) to the defendant’s vehicle as it was parked on a 

public parking lot. The defendant was the exclusive driver of 

this vehicle. The government learned of the travel patterns of 

the defendant for the next 28 days. Some of this information 

led to his indictment for drug trafficking.

ISSUE: Whether the government’s attachment of the GPS to 

the defendant’s vehicle was a “search?”

HELD: Yes. A Fourth Amendment “search” occurs when 

the government trespasses on a person, house, 

paper or effect for the purpose of gathering 

information.

DISCUSSION: The Court recognized that the “Fourth 

Amendment provides in relevant part that ‘[t]he right of the 

Fourth Amendment 33
people to be secure in their persons, houses, papers, and 

effects, against unreasonable searches and seizures, shall not 

be violated.’ It is beyond dispute that a vehicle is an ‘effect’ as 

that term is used in the Amendment.” “The Government 

physically occupied private property for the purpose of 

obtaining information. We have no doubt that such a physical 

intrusion would have been considered a ‘search’ within the 

meaning of the Fourth Amendment when it was adopted.” This 

definition of a “search” [government trespass on “persons, 

houses, papers and effects” for the purpose of obtaining 

information] is considered a supplement to and not a 

replacement of the well-recognized formula of the Katz case 

[government intrusion on a reasonable expectation of privacy].



A. Applies to Government Activities Only

New Jersey v. T.L.O.

 469 U.S. 325, 105 S. Ct. 733 (1985)

FACTS: The defendant, a fourteen-year-old student, was 

found smoking cigarettes in a public high school bathroom. 

She was taken to the vice-principal’s office. He asked the 

defendant to come into his private office and demanded to see 

her purse. Opening the purse, he found a pack of cigarettes. 

As he reached into the purse for the cigarettes, the viceprincipal also noticed a package of cigarette rolling papers. 

Suspecting that a closer examination of the purse might yield 

further evidence of drug use, the vice-principal thoroughly 

searched it. He found several pieces of evidence that implicated 

the defendant in marijuana dealing.

ISSUE: Whether the intrusion of the defendant’s purse by a 

public high school administrator was a Fourth 

Amendment search?

HELD: Yes. The Fourth Amendment regulates all 

government intrusions into reasonable expectations 

of privacy.

34 Fourth Amendment
DISCUSSION: The Constitution acts as a regulation of 

governmental actions. Every governmental intrusion into a 

person’s reasonable expectation of privacy must meet Fourth 

Amendment scrutiny. This is true whether the government is 

seeking evidence of a crime, inspecting a structure, or putting 

out a fire. The Court stated “[A]ccordingly, we have held the 

Fourth Amendment applicable to the activities of civil as well as 

criminal authorities: building inspectors [cite omitted], 

Occupational Safety and Health Act inspectors [cite omitted], 

and even firemen entering privately owned premises to battle a 

fire [cite omitted], are all subject to the restraints imposed by 

the Fourth Amendment.” The fundamental command of the 

Fourth Amendment is that searches and seizures be 

reasonable.

Under ordinary circumstances, a search of a student by a 

teacher or other public school official will be justified at its 

inception when reasonable grounds exist for suspecting 

evidence that the student has violated either the law or the 

rules of the school. Such a search will be permissible in its 

scope when the measures adopted are reasonably related to the 

objectives of the search and not excessively intrusive in light of 

the age and sex of the student and the nature of the infraction.



Coolidge v. New Hampshire

 403 U.S. 443, 91 S. Ct. 2022 (1971)

FACTS: The defendant, a murder suspect, admitted to a 

theft. Other officers went to the defendant’s house to 

corroborate his admission to the theft. The defendant was not 

home but his wife agreed to speak to the officers. The officers

asked about any guns that might be in the house. The 

defendant’s wife showed them four weapons that she offered to 

let them take. The officers took the weapons and several 

articles of clothing acquired in the same manner. One gun was 

later determined to be the murder weapon.

Fourth Amendment 35
ISSUE: Whether the officers obtained the murder weapon 

and the clothing through an illegal search?

HELD: No. The officers obtained this evidence through 

private actions.

DISCUSSION: The Fourth Amendment controls 

governmental actions. The Fourth Amendment was not 

implicated when the government obtained the guns and 

clothing from the defendant’s wife. The government exerted no 

effort to coerce or dominate her, and was not obligated to refuse 

her offer to take the guns. In making these and other items 

available to the government, she was not acting as an 

instrument or agent of the government. The items were secured 

through private actions.



Gouled v. United States

 255 U.S. 298, 41 S. Ct. 261 (1921)

FACTS: Gouled was involved in a conspiracy to commit mail 

fraud against the United States. At the direction of the 

government, Cohen, a business acquaintance of Gouled, 

pretended to make a friendly visit to Gouled at his office. When 

Gouled stepped out, Cohen seized and carried away several 

documents that were later introduced against Gouled at trial.

ISSUE: Whether an agent of a government has to comply 

with the Fourth Amendment?

HELD: Yes. The Fourth Amendment requires compliance 

by government agents.

DISCUSSION: The secret taking, without force, from the 

premises of anyone by a representative of any branch of the 

Federal government is a search and seizure. It is immaterial 

that entrance to the premises was obtained by stealth or 

through social acquaintance, or in the guise of a business call.



36 Fourth Amendment
B. Reasonable Expectation of Privacy

California v. Ciraolo

 476 U.S. 207, 106 S. Ct. 1809 (1986)

FACTS: Officers received an anonymous telephone tip that 

the defendant was growing marijuana in his backyard. This 

area was enclosed by two fences, six and ten feet in height, and 

shielded from view at ground level. Officers trained in 

marijuana identification secured a private airplane, flew over 

the defendant’s home at an altitude of 1,000 feet, and readily

identified marijuana plants growing in his yard. A search 

warrant was issued based on this information.

ISSUE: Whether the naked-eye aerial observation of the 

defendant’s backyard constituted a search?

HELD: No. Areas within the curtilage may be observed 

from public areas.

DISCUSSION: The Fourth Amendment’s protection of the 

home and curtilage does not require law enforcement officers to 

shield their eyes when passing by a home on a public 

thoroughfare. Airways constitute a public thoroughfare. The 

government may use the public airways just as members of the 

public. While the fences were designed to conceal the plants at 

normal street level, they will not shield the plants from the 

elevated eyes of a citizen or a law enforcement officer.



Dow Chemical Co. v. United States

 476 U.S. 227, 106 S. Ct. 1819 (1986)

FACTS: The defendant operated a 2,000-acre chemical 

plant. The plant consisted of numerous covered buildings, with 

outdoor manufacturing equipment and piping conduits located 

between the buildings that were exposed to visual observation 

from the air. The defendant maintained an elaborate security 

system around the perimeter of the complex, barring groundFourth Amendment 37
level public views of the area. When the defendant denied a 

request by the EPA for an on-site inspection of the plant, the 

EPA employed a commercial aerial photographer, using a 

standard precision aerial mapping camera, to take photographs 

of the facility from various altitudes, all of which were within 

lawful navigable airspace.

ISSUE: Whether this conduct was a Fourth Amendment 

search?

HELD: No. The government can use the air space just as 

other members of the public.

DISCUSSION: The EPA’s aerial photograph of the 

defendant’s plant complex from aircraft that was lawfully in 

public navigable airspace was not a search. Further, the open 

areas of an industrial plant complex are not analogous to the 

“curtilage” of a dwelling. The open areas of an industrial 

complex are more comparable to an “open field” in which an 

individual may not legitimately demand privacy. 



Florida v. Riley

 488 U.S. 445, 109 S. Ct. 693 (1989)

FACTS: The Sheriff’s Office received an anonymous tip that 

the defendant was growing marijuana on his property. The 

defendant lived in a mobile home on five acres of rural property. 

A deputy saw a greenhouse behind the mobile home, but could 

not see inside as walls, trees and the mobile home blocked his 

view. However, the deputy could see that part of the 

greenhouse roof was missing. The deputy flew over the 

curtilage at 400 feet in a helicopter, and with his naked eye saw 

marijuana inside the greenhouse. A search warrant was 

obtained and executed, resulting in the discovery of marijuana.

ISSUE: Whether naked eye observations on a curtilage from 

400 feet in a helicopter constitute a search? 

38 Fourth Amendment
HELD: No. The government may use air space consistent 

with public use.

DISCUSSION: The Supreme Court had previously approved 

flying a fixed wing aircraft at 1,000 feet over curtilage. The 

aircraft was in public airspace and complied with FAA 

regulations. Therefore, no reasonable expectation of privacy 

existed. The Court also approved flying over an industrial 

complex and taking photographs, as in Dow Chemical Co. v. 

United States.

In this case, the defendant had no reasonable expectation of 

privacy from the helicopter overflight. FAA regulations allow 

any helicopter to fly lower than fixed wing aircraft if its 

operation is conducted without hazard to persons or property 

on the ground.



United States v. Chadwick

 433 U.S. 1, 97 S. Ct. 2476 (1977)

FACTS: Railroad officials in San Diego observed Machado 

and Leary load a footlocker onto a train bound for Boston. 

Their suspicions were aroused when they noticed that the trunk 

was unusually heavy for its size, and that it was leaking talcum 

powder, a substance often used to mask the odor of marijuana 

or hashish. Machado fit a drug-courier profile. The railroad 

officials notified DEA in San Diego who in turn notified DEA in 

Boston.

In Boston, DEA agents did not have a search warrant nor an 

arrest warrant, but they did have a trained drug dog. The 

agents observed Machado and Leary as they claimed their 

baggage and the footlocker. The agents released the drug dog 

near the footlocker and he covertly alerted to the presence of a 

controlled substance. The defendant joined Machado and Leary 

and together they lifted the 200-pound footlocker into the trunk 

of a car. At that point, the officers arrested all three. A search 

incident to the arrests produced the keys to the footlocker. All 

Fourth Amendment 39
three were removed from the scene. Agents followed with the 

defendant’s car and the footlocker. Ninety minutes later the 

agents opened the footlocker, discovering a large amount of 

marijuana. 

ISSUE: Whether the defendant can expect privacy in his 

trunk? 

HELD: Yes. The defendant’s actions indicated he wanted 

to preserve his privacy in the trunk.

DISCUSSION: By placing personal effects inside a doublelocked footlocker, defendants manifested an expectation of 

privacy in the footlocker. Since the defendants’ principle 

privacy interest in the locked footlocker was not in the container 

itself, but in its contents, seizure of the locker did not diminish 

their legitimate expectation that its contents would remain 

private. A footlocker is not open to public view and not subject 

to regular inspections. By placing personal effects inside a 

double-locked footlocker, the defendant manifested an 

expectation that the contents would remain free from public 

examination. 

NOTE: This case was decided before California v. Acevedo. 

Today, if the officers could establish probable cause that the 

locker contained contraband, they could have opened it 

pursuant to the mobile conveyance doctrine.



Illinois v. Andreas

 463 U.S. 765, 103 S. Ct. 3319 (1983)

FACTS: A Customs inspector initiated a lawful border 

search and found marijuana concealed inside a table. The 

inspector informed the DEA of these facts. The next day, the 

agent put the table in a delivery van and drove it to the 

defendant’s building. A police inspector met him there. Posing 

as deliverymen, the two men entered the apartment building 

and announced they had a package for the defendant.

40 Fourth Amendment
At the defendant’s request, the officers left the container in the 

hallway outside the defendant’s apartment. The agent stationed 

himself to keep the container in sight and observed the 

defendant pull the container into his apartment. While the 

inspector left to secure a search warrant for the defendant’s 

apartment, the agent maintained surveillance. The agent saw 

the defendant leave his apartment, walk to the end of the 

corridor, look out the window, and then return to the 

apartment. The agent remained in the building but did not 

keep the apartment door under constant surveillance.

Between thirty and forty minutes after the delivery the 

defendant reemerged from the apartment with the shipping 

container and was immediately arrested. At the station the 

officers reopened the container and seized the marijuana found 

inside the table. The search warrant had not yet been obtained.

ISSUE: Whether the Fourth Amendment requires a search 

warrant to reopen a container that had previously 

been lawfully opened?

HELD: No. A reopening of a sealed container in which 

contraband drugs had been discovered in an earlier 

lawful border search is not a “search” within the 

Fourth Amendment where the reopening is made 

after a controlled delivery.

DISCUSSION: When a common carrier or law enforcement 

officer discovers contraband in transit, the contraband could 

simply be destroyed. However, this would eliminate the 

possibility of prosecuting those responsible. Instead, the 

government may make a “controlled delivery” of the container to 

the person to whom it is addressed. As long as the initial 

discovery of the contraband is lawful, neither the shipper nor 

the addressee has any remaining expectation of privacy in the 

contents. Therefore, the government may, at the conclusion of 

the controlled delivery, seize the container and re-open it 

without procuring a warrant.

Normally, the government will not let the container out of their 

Fourth Amendment 41
sight between the time they discover the contraband and the 

time it is delivered to the addressee and then seized. However, 

even if there is a brief lapse in surveillance, this will not reinstitute the addressee’s expectation of privacy. The relatively 

short break in surveillance made it substantially unlikely that 

the defendant had removed the table or placed new items inside 

the container while he was in his apartment. Therefore, the 

seizure and re-opening of the container was not a Fourth 

Amendment search as it violated no reasonable expectation of 

privacy.



United States v. Karo

 468 U.S. 705, 104 S. Ct. 3296 (1984)

FACTS: The DEA learned through an informant the 

defendant had ordered fifty gallons of ether (commonly used to 

process cocaine). The government obtained a court order to 

install and monitor a beeper in one of the cans of ether. With 

the informant’s consent, the DEA substituted their own can of 

ether, containing a beeper, for one of the cans of ether in the 

shipment.

The agents saw the defendant pick up the ether from the 

informant, followed him to his home, and determined by using 

the beeper that the ether was inside the residence. The ether 

was moved several other times. Finally, the ether was 

transported to a house rented by Horton, Harley and Steele. 

Using the beeper, agents determined that the can was inside 

the house, and obtained a search warrant for the house, based 

in part on information derived through the use of the beeper. 

The agents executed the warrant and seized cocaine.

ISSUES: 1. Whether the installation of the beeper was 

lawful?

2. Whether the monitoring of the beeper inside 

the residences was a search? 

42 Fourth Amendment
HELD: 1. Yes. The defendant did not have a 

reasonable expectation of privacy in the 

container when the beeper was installed.

2. Yes. The defendant had a reasonable 

expectation of privacy inside the residence, 

which was intruded upon by monitoring the 

beeper while it was inside the residence.

DISCUSSION: No Fourth Amendment right was infringed by 

the installation of the beeper. The consent of the informant to 

install the beeper was sufficient. The transfer of the beeperladen can to the defendant was neither a search nor a seizure, 

since it conveyed no information that he wished to keep private, 

and did not interfere with anyone’s possessory interest in a 

meaningful way. Whether the installation and transfer would 

have been a violation of the Fourth Amendment under a Jones

analysis is unclear.

The monitoring of the beeper in a private residence, an area of 

reasonable expectation of privacy, is a search. As this search 

was conducted without a warrant, it violated the Fourth 

Amendment. The government, by the surreptitious use of a 

beeper, obtained information that it could not have obtained 

from outside the curtilage of the house.

However, the officers, by surveillance and other investigation, 

had sufficient facts to constitute probable cause. They could 

not use information derived from the beeper while it was located 

inside the residence.



Cardwell v. Lewis

 417 U.S. 583, 94 S. Ct. 2464 (1974)

FACTS: Officers went to the defendant’s place of business to 

question him in connection with a murder investigation. While 

there, the officers saw the car they suspected might have been 

used in the murder. Several months later, the officers 

Fourth Amendment 43
questioned the defendant again. They also obtained an arrest 

warrant. The defendant drove his car to the station for 

questioning and left his car in a commercial parking lot. The 

suspect was arrested and the car was towed to a police 

impound lot where a warrantless examination of its exterior was 

conducted the following day.

ISSUE: Whether the examination of an automobile’s 

exterior is reasonable under the Fourth 

Amendment? 

HELD: Yes. The defendant had no reasonable expectation 

of privacy in the exterior of his automobile.

DISCUSSION: Nothing from the interior of the car and no 

personal effects were searched or seized. The intrusion was 

limited to the exterior of the vehicle left in a public parking lot. 

No reasonable expectation of privacy is violated by the 

examination of an exposed tire or in the taking of exterior paint 

samples from a vehicle that had been parked in a public place. 

Further, the officers had probable cause to search the car. 

Where probable cause exists, a warrantless search of an auto is 

reasonable under the Fourth Amendment. See Carroll v. United 

States.



Kyllo v. United States

 533 U.S. 27, 121 S. Ct. 2038 (2001)

FACTS: Officers suspected the defendant of growing 

marijuana in his home. They used a thermal-imaging device to 

determine if the amount of heat emanating from his home was 

consistent with the high-intensity lamps typically used for 

indoor marijuana growth. The scan of the defendant’s home 

took a few minutes and was performed from the passenger seat 

of an officer’s vehicle. The scan showed that the house was 

warmer than neighboring homes. The officers obtained a 

search warrant, in part based on this information.

44 Fourth Amendment
ISSUE: Whether the use of a thermal-imaging device to 

detect levels of heat is a search under the Fourth 

Amendment?

HELD: Yes. Employing technology that is not used by the 

general public to obtain information about a home’s 

interior that could not have been obtained without 

physical entry constitutes a search.

DISCUSSION: The government argued that the scan only 

detected heat radiating from the home and that it did not detect 

“intimate details.” The government also argued that the 

defendant had not shown an expectation of privacy because he 

made no attempts to conceal the heat escaping from his home. 

The Court held that any information of a home that cannot be 

obtained except through either physical entry or sophisticated 

technology not readily available to the public is considered 

“intimate details.” In this case, the surveillance was a search 

and a warrant was needed to engage in the scan.



Hoffa v. United States

 385 U.S. 293, 87 S. Ct. 408 (1966)

FACTS: The defendant, the President of Teamsters Union, 

was on trial for labor racketeering. During the trial, he 

occupied a three-room suite in a hotel. Several friends and 

fellow teamster officials were the defendant’s constant 

companions during the trial. One companion was a teamster 

official and a government informant.

During the trial, the defendant told this companion/informant

that he was attempting to bribe jurors to insure a hung jury,

and made other incriminating statements. The companion/ 

informant reported these statements to the government. As the 

defendant predicted, the jury failed to reach a verdict in the 

case and a mistrial was declared. The government later tried 

the defendant for obstruction of justice.

Fourth Amendment 45
ISSUE: Whether the presence of a government informant in 

the defendant’s hotel room was a search?

HELD: No. The defendant cannot reasonably expect 

privacy in conversations he openly engages in 

before a government informant, present by 

invitation of the defendant.

DISCUSSION: The defendant has no reasonable expectation 

that his conversation will not be reported to the government. 

Where the informant was in the suite by invitation, and every 

conversation that he heard was either directed to him or 

knowingly carried on in his presence, the defendant assumes 

the risk that the person will maintain confidentiality. The 

Fourth Amendment does not protect a wrongdoer’s misplaced 

belief that a person to whom he voluntarily confides his 

wrongdoing will not reveal it.



Minnesota v. Olson

 495 U.S. 91, 110 S. Ct. 1684 (1990)

FACTS: The defendant was suspected of driving a getaway 

car involved in a robbery and murder. Officers learned that the 

defendant was staying in a home occupied by two women. After 

receiving this information, the officers surrounded the home 

and telephoned the women, urging them to tell the defendant to 

come out. During this conversation, a male voice was heard 

saying “tell them I left.” One of the women relayed this message 

to the officers. There were no indications that the women were 

in danger or being held against their will by the defendant. 

Nonetheless, without either the consent of the homeowners or a 

warrant, the officers entered the home to arrest the defendant. 

The officers found the defendant hiding in a closet and arrested 

him. Shortly thereafter, the defendant made incriminating 

statements to government officers.

ISSUE: Whether the warrantless, non-consensual entry 

into the house where the defendant had been 

46 Fourth Amendment
staying violated his Fourth Amendment rights?

HELD: Yes. As an “overnight guest,” the defendant had a 

reasonable expectation of privacy in the house. The 

entry to arrest him, made without a warrant, 

consent, or exigent circumstances, was a violation 

of the Fourth Amendment.

DISCUSSION: While the defendant in this case was not the 

legal owner of the home, he was an “overnight guest” there. 

This fact allowed him to create a reasonable expectation of 

privacy in the home. An overnight guest “seeks shelter in 

another’s home precisely because it provides him with privacy, 

a place where he and his possessions will not be disturbed by 

anyone but his host and those his host allows inside.”

No exigent circumstances existed that would excuse the officers’

warrantless entry into the home. While the crime was serious, 

the defendant was not considered to be the murderer, but only 

the getaway driver. The officers had previously recovered the 

murder weapon and there was no evidence that the two women 

inside the residence were in danger. The officers had the home 

surrounded. It was apparent that the defendant was not able to 

leave. If he had, he would have been arrested in a public place. 

For all of these reasons, exigent circumstances did not exist to 

enter the home. The defendant’s statement was suppressed as 

the fruit of his unlawful arrest.



Minnesota v. Carter

 525 U.S. 83, 119 S. Ct. 469 (1998)

FACTS: The defendant and the lessee of an apartment 

packaged cocaine in the apartment. A law enforcement officer 

observed this activity by looking through a drawn window blind. 

The defendant did not live in the apartment, he had never 

visited that apartment before and his visit only lasted a matter 

of hours. His singular purpose in being there was to package 

cocaine. The defendant was arrested for conspiracy to commit a 

Fourth Amendment 47
controlled substance crime. He complained that the 

information that led to his arrest was the product of an 

unreasonable search.

ISSUE: Whether a visitor enjoys a reasonable expectation of 

privacy in a premises visited for commercial 

reasons?

HELD: No. Commercial visitors do not obtain a reasonable 

expectation of privacy in a premises. 

DISCUSSION: The Supreme Court distinguished the 

defendant’s presence in this apartment from the social, 

overnight guests’ presence in Minnesota v. Olson. In Olson, the 

Court held that a guest staying overnight in another’s home had 

a reasonable expectation of privacy. The defendant in Carter 

however, went to the apartment for a business transaction, 

limiting his presence to a matter of hours. He did not have a 

previous relationship with the lessee of the apartment, nor did 

he have a connection to the apartment similar to that of an 

overnight guest. While the apartment was a dwelling for the 

lessee, the property was equivalent to a commercial site to the 

defendant. Lacking a significant connection to the property, the 

defendant did not have standing to object to the search 

conducted on that premises.



O’Connor v. Ortega

 480 U.S. 709, 107 S. Ct. 1492 (1987)

FACTS: The defendant, a physician, was an employee of a 

state hospital. Hospital officials became concerned about 

possible improprieties in his conduct. Hospital officials entered 

his office while the defendant was on administrative leave 

pending the investigation. The officials entered the office to 

inventory and secure state property. They seized personal items 

from his desk and file cabinets. These items were later used in 

administrative proceedings resulting in his discharge. 

48 Fourth Amendment
ISSUES: 1. Whether the defendant, a public employee, 

had a reasonable expectation of privacy in his 

office, desk, and file cabinet at his place of 

work? 

2. Whether a public employer must establish 

probable cause before searching an 

employee’s reasonable expectation of privacy?

HELD: 1. Yes. It is possible for an employee to 

establish a reasonable expectation of privacy 

in a work place environment. 

2. It depends. When the employer’s search is 

work-related, the search must be reasonable 

under the circumstances.

DISCUSSION: The Court recognized that employees may 

develop a reasonable expectation of privacy in government 

workplaces. Justice Scalia stated “[c]onstitutional protection 

against unreasonable searches by the government does not 

disappear merely because the government has the right to make 

reasonable intrusions in its capacity as employer.” The 

operational realities of the workplace, however, may make some 

employees’ expectations of privacy unreasonable when an 

intrusion is by a supervisor rather than a law enforcement 

officer.

The Court concluded the defendant had a reasonable 

expectation of privacy in his office. Regardless of any legitimate 

right of access the hospital staff may have had to the office, the 

defendant had a reasonable expectation of privacy in his desk 

and file cabinets as he did not share these areas with any other 

employees.

A determination of reasonableness applicable to a search 

requires “balancing the nature and quality of the intrusion on 

the individual’s Fourth Amendment interests against the 

importance of the governmental interests alleged to justify the 

intrusion.” In the case of searches conducted by a public 

Fourth Amendment 49
employer, the court must balance the invasion of the employees’ 

legitimate expectations of privacy against the government’s need 

for supervision, control and the efficient operation of the 

workplace.

To ensure the efficient and proper operation of the agency,

public employers must be given wide latitude to enter employee 

offices for work-related, non-investigatory reasons, as well as 

work-related employee misconduct. The Court held that public 

employer intrusions on the constitutionally protected privacy 

interests of employees for non-investigatory, work-related 

purposes, as well as for investigations of work-related 

misconduct, should be judged by the standard of 

reasonableness under all the circumstances.



City of Ontario v. Quon

 560 U.S. 746, 130 S. Ct. 2619 (2010)

FACTS: The defendant was employed by City of Ontario. 

The city provided the defendant with a pager, capable of 

sending and receiving text messages, to assist with his duties. 

Each receiving employee was notified that the city “reserves the 

right to monitor and log all network activity including e-mail 

and Internet use, with or without notice. Users should have no 

expectation of privacy or confidentiality when using these 

resources.” The defendant signed a statement acknowledging 

that he understood this policy. Although the policy did not 

explicitly cover text messages, the city made clear to the 

employees that text messages were to be treated as e-mails. 

Over the next few months, the defendant exceeded his character 

limit three or four times. Each time he reimbursed the city the 

costs. His supervisor, who tired of collecting overages on behalf 

of the city, obtained the transcripts of the text usage to 

determine if the city needed to amend its service plan. He 

discovered the defendant was using the pager to pursue 

personal matters while on duty. The defendant was disciplined.

50 Fourth Amendment
ISSUE: Whether the government’s intrusion into the 

contents of the pager transcripts was reasonable?

HELD: Yes. Though the Court refused to address whether 

the employee had a reasonable expectation of 

privacy in the pager, it nonetheless found the 

government’s intrusion as reasonable.

DISCUSSION: The Court hesitated to declare that the 

employee had a reasonable expectation of privacy in this 

instance. “The Court must proceed with care when considering 

the whole concept of privacy expectations in communications 

made on electronic equipment owned by a government 

employer. The judiciary risks error by elaborating too fully on 

the Fourth Amendment implications of emerging technology 

before its role in society has become clear.”

Assuming that the employee had a reasonable expectation of 

privacy, the Court still found the government’s intrusion as a 

reasonable workplace intrusion. Quoting O’Connor, the Court 

held that a search “conducted for a ‘noninvestigatory, workrelated purpos[e]’ or for the ‘investigatio[n] of work-related 

misconduct,’” is reasonable if “it is ‘justified at its inception’ and 

if ‘the measures adopted are reasonably related to the objectives 

of the search and not excessively intrusive...” The city’s 

“legitimate work-related rationale” was to determine whether 

the city’s contract was sufficient to meet the city’s needs. Its 

intrusion was limited in scope because “reviewing the 

transcripts was reasonable because it was an efficient and 

expedient way to determine whether [the defendant’s] overages 

were the result of work-related messaging or personal use.”



Hudson v. Palmer

 468 U.S. 517, 104 S. Ct. 3194 (1984)

FACTS: The defendant, a prison inmate, was subjected to a 

prison cell search, or “shakedown.” The officers discovered a 

ripped pillow case and charged the defendant with destruction 

Fourth Amendment 51
of government property.

ISSUE: Whether a prison inmate has a reasonable 

expectation of privacy in a prison cell?

HELD: No. Society is not willing to recognize that 

prisoners have a legal right to exclude the 

government from their cells.

DISCUSSION: Prisoners are afforded only those rights not 

fundamentally inconsistent with imprisonment itself or 

incompatible with the objectives of incarceration (to be free from 

racial discrimination and cruel and unusual punishment, to 

petition for redress of grievances, certain First Amendment 

religious and speech protections, due process). However, 

imprisonment also entails a series of personal deprivations. 

One of those deprivations, rationally and logically, is the loss of 

personal privacy. The Court held that “society is not prepared 

to recognize as legitimate any subjective expectation of privacy 

that a prisoner might have in his prison cell and that, 

accordingly, the Fourth Amendment proscription against 

unreasonable searches does not apply within the confines of the 

prison cell.”



Maryland v. Macon

 472 U.S. 463, 105 S. Ct. 2778 (1985)

FACTS: An undercover officer entered an adult bookstore 

and purchased two magazines with a marked $50 bill from the 

defendant. The officer left the store and met with two other 

officers waiting outside. After reviewing the magazines, they 

determined that the material was obscene and went into the 

store. The officers arrested the defendant and retrieved the $50 

bill from the register. 

ISSUE: Whether the officers searched for and “seized” the 

two magazines under the definition of the Fourth 

Amendment?

52 Fourth Amendment
HELD: No. The defendant does not have a reasonable 

expectation of privacy in items offered for public 

sale nor a possessory interest in items sold.

DISCUSSION: The Court held that “[A]bsent some action 

taken by government agents that can properly be classified as a 

“search” or a “seizure,” the Fourth Amendment rules designed 

to safeguard First Amendment freedoms do not apply.” The 

defendant does not have an expectation of privacy in areas 

where the public has been invited to peruse wares for sale. 

Therefore, the officer’s entry into the store and examining 

materials for sale cannot be considered a “search.”

Nor did the Court consider the purchase of the magazines a 

seizure (defined as a “meaningful interference with an 

individual’s possessory interests” in United States v. Jacobsen). 

The defendant “voluntarily transferred any possessory interest 

he may have had in the magazines to the purchaser upon the 

receipt of the funds.” Therefore, these actions cannot be 

deemed a Fourth Amendment seizure.



New York v. Class

 475 U.S. 106, 106 S. Ct. 960 (1986)

FACTS: Two police officers observed the defendant engaging 

in traffic violations. They stopped the defendant, who emerged 

from his car and approached the officers. One officer went 

directly to the defendant’s vehicle. The defendant provided the 

other officer with a registration certificate and proof of 

insurance, but stated that he did not have a driver’s license.

The first officer opened the door of the vehicle to look for the 

VIN (which was located on the left doorjamb on vehicles 

manufactured before 1969). When he did not find the VIN 

there, he reached into the interior of the car to move some 

papers obscuring the area of the dashboard where the VIN is 

located in later model cars. In doing so, the officer saw the 

handle of a gun protruding from underneath the driver’s seat. 

Fourth Amendment 53
He seized the gun and arrested the defendant. The officers had 

no reason to suspect that the defendant’s car was stolen, that it 

contained contraband, or that the defendant had committed an 

offense other that the traffic violations.

ISSUE: Whether the defendant has a reasonable 

expectation of privacy in his vehicle’s VIN location? 

HELD: No. Because of the important role played by the 

VIN in the pervasive government regulation of the 

automobile and the efforts by the government to 

ensure that the VIN is placed in plain view, there is 

no reasonable expectation of privacy in the VIN.

DISCUSSION: An automobile’s interior is protected by the

Fourth Amendment’s prohibition against unreasonable 

intrusions by the government. However, the officer’s reaching 

into the vehicle to remove the papers was not an unreasonable 

search but was incidental to viewing something in which the 

defendant has no reasonable expectation of privacy. The fact 

that papers on the dashboard obscured the VIN from plain view 

did not create a reasonable expectation of privacy in the VIN.



Bond v. United States

 529 U.S. 334, 120 S. Ct. 1462 (2000)

FACTS: A Border Patrol agent entered a bus to check the 

immigration status of the occupants. After satisfying himself 

that the passengers were lawfully in the United States, the 

agent walked toward the front of the bus, squeezing the soft 

luggage passengers had placed in the overhead storage bin. 

The agent felt a “brick-like” object in a green canvas bag. After 

verifying with the defendant that he owned the bag, the agent 

obtained consent to search its contents. He found a quantity of 

methamphetamine wrapped in duct tape, rolled in a pair of 

pants.

54 Fourth Amendment
ISSUE: Whether the agent’s squeezing of the passengers’ 

containers was a “search” under the Fourth 

Amendment?

HELD: Yes. Placing items in public view does not convey 

the expectation that they will be handled by 

members of the public.

DISCUSSION: Under Katz, a search can be defined as a 

government intrusion on a reasonable expectation of privacy. 

The government argued that the defendant did not have a 

reasonable expectation of privacy because he exposed his 

container to the public. The defendant could not prevent any 

other member of the public from handling the container. 

Therefore, he should not have the ability to complain when the 

government does.

However, the Court found this does not mean that introducing 

items into the public allows others to manipulate the property. 

It is true that fellow passengers and bus employees may handle 

the containers found in the overhead bin. However, the 

defendant would not have expected anyone to “feel the bag in an 

exploratory manner.” The Border Patrol agent exceeded the 

scope of what the public could have been expected to do (which 

went beyond merely viewing or engaging in incidental contact), 

thereby intruding on the defendant’s reasonable expectation of 

privacy.



United States v. Place

 462 U.S. 696, 103 S. Ct. 2637 (1983)

FACTS: The defendant’s behavior aroused the suspicion of 

law enforcement officers as he waited in line at the Miami 

International Airport to purchase a ticket to New York’s 

LaGuardia Airport. The officers approached the defendant and 

requested and received identification. There was a discrepancy 

in the name given by the defendant and his baggage tags. The 

defendant gave permission to the officers to open his luggage. 

Fourth Amendment 55
As the defendant’s flight was about to leave, the officers decided 

not to search his luggage and allowed the defendant to depart. 

They called DEA in New York and relayed their information. 

Upon the defendant’s arrival in New York, two DEA agents 

approached him and said that they believed he might be 

carrying narcotics. When he refused to consent to a search of 

his luggage, one of the agents told him they were going to take 

the luggage to a federal judge to obtain a search warrant. The 

agents took the luggage to Kennedy Airport where it was 

subjected to a “sniff test” by a drug dog. The dog reacted 

positively to one of the suitcases. At this point, ninety minutes 

had elapsed since the seizure of the luggage. The agents 

obtained a search warrant and opened the luggage. They 

discovered cocaine inside.

ISSUES: 1. Whether the prolonged seizure of the 

defendant’s baggage rendered the seizure 

unreasonable?

2. Whether a dog sniff is a “search” within 

the meaning of the Fourth Amendment?

HELD: 1. Yes. The agents were justified in conducting 

a limited seizure of the containers, but their 

unnecessary delay rendered their seizure 

unreasonable.

2. No. Dog sniffs do not entail the intrusions 

typically found in the traditional Fourth 

Amendment searches.

DISCUSSION: Traditionally, the Court has viewed a seizure 

of personal property as per se unreasonable unless it is 

accomplished pursuant to a search warrant. When law 

enforcement authorities have probable cause to believe “that a 

container holds contraband or evidence of a crime, but have not 

secured a warrant, the Court has interpreted the Amendment to 

permit seizure of the property, pending issuance of a warrant to 

examine its contents, if the exigencies of the circumstances 

demand it or some other recognized exception to the warrant 

56 Fourth Amendment
requirement is present.” Neither of those circumstances was 

present in this case. However, “when an officer’s observations 

lead him to reasonably to believe that a traveler is carrying 

luggage that contains narcotics, the principle of Terry and its 

progeny would permit the officer to detain the luggage briefly to 

investigate the circumstances that aroused his suspicion, 

provide that the investigative detention is properly limited in 

scope.”

In evaluating the reasonableness of a Terry-type detention, the 

brevity of the invasion of the individual’s Fourth Amendment 

interests is an important factor in determining whether the 

seizure is so minimally intrusive as to be justifiable on 

reasonable suspicion. Moreover, in assessing the effect of the 

length of detention, we take into account whether the police 

diligently pursue their investigation.” On this occasion, the 

agents in New York did not make effort to have minimized the 

intrusion on the defendant’s Fourth Amendment protection.

As for the “sniff test” by a trained narcotics dog, the Court 

found that this tool does not amount to a “search” because it 

“does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from 

public view, as does, for example, an officer’s rummaging 

through the contents of the luggage.” “Moreover, the sniff 

discloses only the presence or absence of narcotics, a 

contraband item. Thus, despite the fact that the sniff tells the 

authorities something about the contents of the luggage, the 

information obtained is limited.”



1. Open Fields

Hester v. United States

 265 U.S. 57, 44 S. Ct. 445 (1924)

FACTS: Federal agents, hiding fifty to one hundred yards 

from defendant’s house, saw a car drive on to the property. 

They observed the defendant sell moonshine to the driver.

Fourth Amendment 57
ISSUE: Whether the Fourth Amendment protection of 

privacy in persons, houses, papers, and effects 

extends to “open fields?”

HELD: No. Those observations made from the “open fields” 

are not subject to Fourth Amendment protections.

DISCUSSION: The concept of “open fields” is very old. The 

special protection accorded by the Fourth Amendment to the 

people in their ‘persons, houses, papers, and effects’ is not 

extended to the “open fields.” There is no intrusion onto 

reasonable expectation of privacy when government agents 

enter onto open fields. Therefore, there is no Fourth 

Amendment search. The Court said that, even if there had been 

a trespass, the observations were not obtained by an illegal 

search or seizure. The Court affirmed this viewpoint in U.S. v. 

Jones, which expanded the definition of a search to include 

trespass onto the property of others for the purpose of obtaining 

information.



Oliver v. United States

 466 U.S. 170, 104 S. Ct. 1735 (1984)

FACTS: Narcotic agents, acting on a report that marijuana 

was being grown on the defendant’s farm, went there to 

investigate. They drove past the defendant’s house to a locked 

gate with a “no trespassing” sign, but with a footpath around 

the gate on one side. The agents walked around the gate and 

along the footpath and found a field of marijuana over a mile 

from the defendant’s house. 

ISSUE: Whether the officers’ observations were made from

the open field?

HELD: Yes. The officers’ observations were made from an 

area in which the defendant did not have the ability 

to challenge. 

58 Fourth Amendment
DISCUSSION: Steps taken to protect privacy, such as 

planting the marijuana on secluded land and erecting fences 

and “No Trespassing” signs around the property, do not 

necessarily establish an expectation of privacy in an open field. 

Open fields do not provide the setting for those intimate 

activities that the Fourth Amendment is intended to shelter 

from government intrusion or surveillance.



United States v. Dunn

 480 U.S. 294, 107 S. Ct. 1134 (1987)

FACTS: DEA agents suspected the defendant of 

manufacturing controlled substances on his ranch. The ranch 

was completely encircled by a perimeter fence, and contained 

several interior barbed wire fences, including one around the 

house approximately fifty yards from the barn, and a wooden, 

corral fence enclosing the front of the barn. The barn had an 

open overhang and locked, waist high gates. Agents, without a 

warrant, climbed over the perimeter fence, several of the barbed 

wire fences, and the wooden fence in front of the barn. They 

were led there by the smell of chemicals, and while there, could 

hear a motor running inside. They shined a flashlight inside 

and observed a drug lab. Using this information, the agents 

obtained and executed a search warrant.

ISSUE: Whether the officers’ observations were made in the 

open field? 

HELD: Yes. The officers did not intrude upon an area 

where the defendant had a reasonable expectation 

of privacy, nor did they intrude upon a 

constitutionally protected area. (the defendant’s 

person, house, papers or effects).

DISCUSSION: The Court held that it will consider four 

factors in determining if an area is in the open field or curtilage:

Fourth Amendment 59
1) Proximity of the area to the home;

2) Whether the area is within an enclosure that also 

surrounds the home;

3) The nature and use to which the area is put; and,

4) Steps taken by the resident to protect the area from 

observation by passers-by.

The Court held that the defendant did not establish the area 

surrounding his barn as curtilage. Therefore, the officers’ 

intrusion into this area was not a search. Also, the warrantless 

naked-eye observation of an area in which a reasonable 

expectation of privacy exists is not a search; nor is the shining 

of a flashlight into an area of reasonable expectation of privacy.



2. Abandoned Property

California v. Greenwood

 486 U.S. 35, 108 S. Ct. 1625 (1988)

FACTS: Officers had information indicating that the 

defendant was involved in trafficking narcotics. They obtained 

garbage bags from his regular trash collection left on the curb 

in front of his house. The officers developed probable cause and 

obtained a search warrant based on evidence found in the 

garbage. The search warrant yielded quantities of controlled 

substances. The defendant and others were arrested and 

released on bail. The officers again received information that 

the defendant was engaged in narcotics trafficking. Again the 

officers obtained his garbage from the regular trash collector. A 

second warrant was executed and the officers found more 

evidence of trafficking in narcotics.

ISSUE: Whether the defendant had a reasonable 

expectation of privacy in garbage left for collection 

outside the curtilage of his home? 

60 Fourth Amendment
HELD: No. The defendant abandoned any reasonable 

expectation of privacy in the items he left for 

collection outside the curtilage of his home.

DISCUSSION: An individual abandons any expectation of 

privacy in garbage bags once left at the curb outside his 

curtilage. It is common knowledge that plastic garbage bags left 

on or at the side of a public street are readily accessible to 

animals, children, scavengers, snoops, and other members of 

the public. In addition, in this case, the defendant placed his 

trash at the curb for the express purpose of conveying it to a 

third party, the trash collector. The trash collector might have 

sorted through the trash or allowed others, such as the

government, to do so. Accordingly, the defendant had no 

reasonable expectation of privacy in the items discarded. What 

a person knowingly exposes to the public, even in his own home 

or office, does not enjoy Fourth Amendment protection.



Abel v. United States

 362 U.S. 217, 80 S. Ct. 683 (1960)

FACTS: INS agents arrested the defendant in his hotel room 

to deport him. The defendant was permitted to pay his bill and 

get out of the room. Immediately thereafter, FBI agents 

obtained the permission of hotel management to search the 

room vacated by the defendant. They found evidence linking 

the defendant to espionage.

ISSUE: Whether the defendant maintained a reasonable 

expectation of privacy in the hotel room?

HELD: No. The defendant has abandoned his interests of 

privacy in the room.

DISCUSSION: Once the defendant checked out of the room, 

the hotel management had the exclusive right of access. The 

government obtained consent from a party with the authority to 

grant it. The Court held that the defendant “had abandoned 

Fourth Amendment 61
these articles. He had thrown them away.” Therefore, their 

seizure was lawful.



3. Foreign Searches

United States v. Verdugo-Urquidez

 494 U.S. 259, 110 S. Ct. 1056 (1990)

FACTS: The defendant was a citizen and resident of Mexico. 

A federal court issued a warrant for his arrest for narcoticrelated offenses. He was arrested by Mexican officials and 

turned over to U.S. Marshals in California. Following the 

arrest, a DEA Agent in concert with Mexican law enforcement

searched the defendant’s residences located in Mexico. The 

agent believed the searches would reveal evidence of defendant’s 

narcotics trafficking and his involvement in the torture-murder 

of a DEA Agent. Arrangements were made with appropriate 

Mexican officials who authorized the searches. One search 

uncovered a tally sheet that the government believed reflected 

the quantities of marijuana smuggled by defendant into the 

United States.

ISSUE: Whether the Fourth Amendment applies to the 

search and seizure by U.S. agents of property that 

is owned by a foreign national and located in a 

foreign country?

HELD: No. The Fourth Amendment’s Warrant Clause has 

no applicability to searches of non-U.S. citizens’ 

homes located in foreign jurisdictions because U.S. 

magistrates have no power to authorize such 

searches.

DISCUSSION: The Fourth Amendment does not apply where 

American officers search a foreign national who has no 

“substantial connections” with the United States and where the 

search takes place outside the United States. The Fourth 

Amendment protects “the people.” The term “the people” refers 

62 Fourth Amendment
to a class of persons who consist of a national community or 

who have otherwise developed sufficient ties with this country 

to be considered part of that community. This language 

contrasts with the words “person” and “accused” used in the 

Fifth and Sixth Amendments regulating procedure in criminal 

cases.

The Fifth and Sixth Amendment rights are different from Fourth 

Amendment rights. They are fundamental trial rights; a 

violation occurs only at trial. A violation of the Fourth 

Amendment is fully accomplished at the time of an 

unreasonable intrusion by government agents. Therefore, any 

possible Fourth Amendment violation occurred in Mexico.

The absence of local judges or magistrates available to issue 

warrants, the differing and perhaps unascertainable 

conceptions of reasonableness and privacy that prevail abroad, 

and the need to cooperate with foreign officials all indicate that 

the Fourth Amendment warrant requirement should not apply 

abroad.



4. Private Intrusions

United States v. Jacobsen

 466 U.S. 109, 104 S. Ct. 1652 (1984)

FACTS: While examining a damaged package, two delivery 

company employees opened it to check the contents. They 

observed a white, powdery substance. The substance had been 

wrapped eight times before being placed in the package. The 

employees repacked the contents of the package and notified 

the DEA of their discovery. A DEA agent went to the company 

office, removed some of the contents and conducted a field test 

that identified the substance as cocaine.

ISSUE: Whether the Fourth Amendment required the DEA 

agent to obtain a search warrant before removing 

part of the powder and conducting a field test on it?

Fourth Amendment 63
HELD: No. The defendant’s reasonable expectation of 

privacy in the package had been destroyed by the 

actions of the private delivery employees.

DISCUSSION: A “search” under the Fourth Amendment 

occurs when the government intrudes on an area where an 

individual has a reasonable expectation of privacy, or 

trespasses on a person, house, paper or effect for the purpose of 

gathering information. The Constitution and its amendments 

do not apply to the activities of private individuals not acting as 

agents of the government. Here, the initial invasion by the two 

employees was not subject to the Fourth Amendment. And, 

once an individual’s original expectation of privacy is destroyed, 

the Fourth Amendment does not prohibit governmental use of 

the now non-private information. The additional intrusion of

the field test was also determined to be reasonable.



Walter v. United States

 447 U.S. 649, 100 S. Ct. 2395 (1980)

FACTS: A private carrier mistakenly delivered several 

packages containing films depicting pornographic images to a 

third party. The third party opened the packages, finding 

suggestive drawings and explicit descriptions of the contents. 

The third party opened one or two of the packages and 

attempted without success to view portions of the film by 

holding it up to the light. After the FBI was notified and picked 

up the packages, agents viewed the films with a projector.

ISSUE: Whether the viewing of the films constituted a 

government intrusion on a reasonable expectation 

of privacy?

HELD: Yes. Even though the private parties destroyed any 

reasonable expectation of privacy regarding the 

depictions and descriptions found on the film 

boxes, the agents exceeded the scope of this 

64 Fourth Amendment
intrusion by viewing the film.

DISCUSSION: It is well settled that an officer’s authority to 

possess a package is distinct from his authority to examine its 

contents. When the contents of the package are books or other 

materials arguably protected by the First Amendment, and 

when the basis for the seizure is disapproval of the message 

contained therein, it is especially important that this 

requirement be scrupulously observed.

Some circumstances – for example, if the results of the private 

search are in plain view when materials are turned over to the 

government (see United States v. Jacobsen) – may justify the 

government’s re-examination of the materials. However, the 

government may not exceed the scope of the private search 

unless it has the right to make an independent search. The 

nature of the contents of the films was indicated by descriptive 

material on their individual containers. This did not allow the 

government’s unauthorized screening of the films absent 

consent, exigency or a warrant. The screening constituted an 

unreasonable invasion of their owner’s constitutionally 

protected interest in privacy. It was a search; there was no 

warrant; the owner had not consented; and there were no 

exigent circumstances. Therefore, the intrusion of viewing the 

films with a projector was unreasonable.



5. Third Party Control

United States v. Miller

 425 U.S. 435, 96 S. Ct. 1619 (1976)

FACTS: ATF agents were investigating the defendant. 

Agents served grand jury subpoenas on the presidents of banks 

where the defendant kept accounts. The banks made the 

documents available to the agents, which were used in their 

investigation of the defendant.

Fourth Amendment 65
ISSUE: Whether the defendant had a reasonable 

expectation of privacy in records held by the banks?

HELD: No. The defendant had no reasonable expectation 

of privacy in his bank records, since the bank was a 

third party to which he disclosed his affairs when 

he opened his accounts at the bank.

DISCUSSION: There is no reasonable “expectation of 

privacy” in the contents of the original checks and deposit slips, 

since the checks are not confidential communications. They are 

negotiable instruments to be used in commercial transactions, 

and all the documents obtained contain only information 

voluntarily conveyed to the banks and exposed to their 

employees in the ordinary course of business. The Fourth 

Amendment does not prohibit the obtaining of information 

revealed to a third party and conveyed by him to government 

authorities. The issuance of a subpoena to a third party does 

not violate a defendant’s rights, even if a criminal prosecution is 

contemplated at the time the subpoena is issued.

NOTE: The requisition of bank records must be in 

compliance with federal statutes.



Smith v. Maryland

 442 U.S. 735, 99 S. Ct. 2577 (1979)

FACTS: The victim of a robbery began receiving phone calls 

from the person who claimed to be the robber. After developing 

a suspect, the government installed a pen register, without a 

warrant, at the central telephone system to determine the 

specific phone numbers the suspect was dialing. After the 

government discovered the suspect had called the victim, the 

suspect (defendant) was charged him with robbery.

ISSUE: Whether the use of the pen register constituted a 

search?

66 Fourth Amendment
HELD: No. The defendant did not have a reasonable 

expectation of privacy in the phone numbers he 

dialed.

DISCUSSION: The Court found that the defendant did not 

have a reasonable expectation of privacy regarding the numbers 

he dialed on his phone since those numbers were automatically 

turned over to a third party, the phone company. Even if the 

defendant did harbor some subjective expectation that the 

phone numbers he dialed would remain private, this 

expectation was not one that society was prepared to recognize 

as “reasonable.” Therefore, the Court concluded that 

installation of the pen register was not a “search” and no 

warrant was required.

NOTE: The installation of pen registers must be in 

compliance with federal statutes.



III. WHAT IS A SEIZURE?

California v. Hodari

 499 U.S. 621, 111 S. Ct. 1547 (1991)

FACTS: Two officers were on patrol in a high-crime area. 

They discovered a group of youths huddled around a car. The 

youths, including the defendant, fled when they observed the 

approaching unmarked police car. A police officer, wearing a 

“raid” jacket, left the patrol car to give chase. The officer took a 

circuitous route that brought him in direct contact with the 

defendant. The defendant was looking behind as he ran and 

did not turn to see the officer until the officer was almost upon 

him, whereupon the defendant tossed away a small rock. The 

officer tackled him, handcuffed him, and radioed for assistance. 

Officers recovered the rock, which proved to be crack cocaine.

ISSUE: Whether the defendant was “seized” at the time he 

dropped the controlled substance?

Fourth Amendment 67
HELD: No. The government had not seized the defendant 

until it engaged in physical contact with him.

DISCUSSION: To constitute a Fourth Amendment seizure of 

a person, there must be either:

1) An application of force, however slight; 

or

2) Submission to an officer’s “show of authority” to 

restrain the subject’s freedom of movement.

The defendant was not seized at the time he dropped the 

controlled substance. No physical force was applied to the 

defendant, nor did he submit to a “show of authority.” He was 

not seized until he was tackled.

Assuming that the officer’s pursuit constituted a “show of 

authority” requesting the defendant to halt, the defendant did 

not submit. He therefore was not seized until he was tackled.



Brower v. Inyo County

 489 U.S. 593, 109 S. Ct. 1378 (1989)

FACTS: The decedent was killed one evening when he drove 

a stolen car through a police roadblock. The roadblock 

consisted of an unilluminated 18-wheel tractor-trailer placed 

across both lanes of a two-lane road, behind a curve. A police 

car, with its headlights on, was placed between the decedent’s 

vehicle and the tractor-trailer.

ISSUE: Whether the officers’ actions constituted a seizure 

under the Fourth Amendment?

HELD: Yes. The officers’ action of setting up the roadblock 

was not a seizure. However, when the decedent 

crashed into the roadblock he was “seized” within 

68 Fourth Amendment
the meaning of the Fourth Amendment.

DISCUSSION: A person is seized within the meaning of the 

Fourth Amendment whenever the government has terminated a 

person’s freedom of movement through means intentionally 

applied. A Fourth Amendment seizure, however, does not occur 

just because there is a governmentally caused termination of an 

individual’s freedom of movement. Only when that termination 

is intentionally applied does a Fourth Amendment seizure 

occur, as was the case here.



Michigan v. Chesternut

 486 U.S. 567, 108 S. Ct. 1975 (1988)

FACTS: Officers, riding in a marked car, observed the 

defendant standing on a street corner. When he saw the police 

car approaching, the defendant began to run. The officers 

followed him, driving next to him as he ran. While they drove 

alongside, the officers did not activate their siren or flashing

lights, order the defendant to stop, display any weapons, or use 

the vehicle to try to block the defendant’s path. As the officers 

observed him, the defendant threw a number of small packets. 

One of the officers retrieved the packets and identified the 

contents as a controlled substance. The defendant was 

arrested and a search of his person revealed other drugs and a 

hypodermic needle.

ISSUE: Whether the government pursuit of the defendant 

was a “seizure” within the meaning of the Fourth 

Amendment?

HELD: No. The officers neither applied force nor 

demonstrated authority to the defendant.

DISCUSSION: The test for determining when a person is 

“seized” under the Fourth Amendment is whether, “in view of all 

of the circumstances surrounding the incident, a reasonable 

person would have believed that he was not free to leave.” Here, 

Fourth Amendment 69
there was no evidence the government attempted to impinge the 

defendant’s ability to leave. “While the very presence of a police 

car driving parallel to a running pedestrian could be somewhat 

intimidating, this kind of police presence does not, standing 

alone, constitute a seizure.” In sum, the police conduct in this 

case would not have communicated to a reasonable person an 

attempt to capture or otherwise intrude upon the defendant’s 

freedom of movement. No “seizure” occurred.



Brendlin v. California

 551 U.S. 249, 127 S. Ct. 2400 (2007)

FACTS: An officer stopped a car with a temporary license 

plate even though there was nothing unusual about the 

circumstances. During the stop, he recognized the passenger in 

the car as someone who might be a parole violator. The officer 

asked the passenger to identify himself. After verifying an 

arrest warrant of the passenger through dispatch, the officer 

placed him under arrest. A search incident to his arrest yielded 

evidence of his capability to produce a controlled substance.

ISSUE: Whether a passenger in a stopped motor vehicle 

has been “seized?”

HELD: Yes. The passengers in a motor vehicle are “seized” 

just as well as the driver during a routine vehicle 

stop as they do not feel free to leave the encounter.

DISCUSSION: The Court held that unintended persons can 

be subjected to a seizure, as happened in this case. As the 

Fourth Amendment applies to traffic stops, the Court has 

consistently held that the government seizes drivers and 

occupants during these encounters. The Court stated “we have 

said over and over in dicta that during a traffic stop an officer 

seizes everyone in the vehicle, not just the driver.” The critical 

issue is whether a reasonable person would feel free to 

terminate the encounter. The Court concluded that “any 

reasonable passenger would have understood the police officers 

70 Fourth Amendment
to be exercising control to the point that no one in the car was 

free to depart without police permission.” 



Florida v. Bostick

 501 U.S. 429, 111 S. Ct. 2382 (1991)

FACTS: As part of a drug interdiction effort, police officers 

routinely boarded passenger buses at scheduled stops and 

asked travelers for permission to search their luggage. Two 

officers boarded the bus that the defendant was riding. Without 

articulable suspicion, the officers questioned the defendant and 

asked for his consent to search his luggage for drugs. They 

advised the defendant of his right to refuse and he granted his 

consent. The officers found cocaine and arrested the defendant.

ISSUE: Whether the encounter constituted a “seizure” 

within the meaning of the Fourth Amendment?

HELD: No. A person is “seized” when freedom of 

movement is restricted by government action.

DISCUSSION: In some circumstances, the proper test in 

deciding whether a person has been seized is not whether a 

reasonable person would feel free to leave, but whether, a 

reasonable passenger would feel free to terminate the 

encounter. Random bus searches pursuant to a passenger’s 

consent are not per se unconstitutional. The cramped confines 

of a bus is just one factor to be considered in evaluating 

whether that encounter constitutes a “seizure” within the 

meaning of the Fourth Amendment.

Even when officers have no basis for suspecting a particular 

individual of criminal activity, they may generally ask questions 

of that individual, ask to examine his identification, and request 

to search his luggage. It is important that they do not convey 

the impression that compliance with their requests is 

mandatory.

Fourth Amendment 71
In this case, the fact that the defendant did not feel free to leave 

the bus does not mean that he was seized. His movements 

were confined in a sense, but this was the natural result of his 

decision to ride the bus. The officers did not point weapons at 

the defendant or threaten him or otherwise imply that 

compliance with their request was mandatory. Further, the 

officers specifically advised him that he could refuse consent. 

Therefore, the action by the police on the bus did not constitute 

a Fourth Amendment seizure.



United States v. Drayton

 536 U.S. 194, 122 S. Ct. 2105 (2002)

FACTS: Three police officers boarded a bus as part of a 

routine drug and weapons interdiction effort. One officer knelt 

on the driver’s seat, facing the rear of the bus, while another 

officer stayed in the rear, facing forward. The third officer 

worked his way from back to front, speaking with individual 

passengers as he went. To avoid blocking the aisle, this officer 

stood next to or just behind each passenger with whom he 

spoke. He testified that passengers who declined to cooperate 

or who chose to exit the bus at any time would have been 

allowed to do so, that most people are willing to cooperate, and 

that passengers often leave the bus for a break while officers are 

on board. The officer approached the defendant and his 

traveling companion, who were seated together, and identified

himself. Speaking just loud enough for them to hear, he 

declared that he was looking for drugs and weapons and asked 

if the defendants had any bags. Both of them pointed to a bag 

overhead. The officer asked if they minded if he checked it. The 

traveling companion agreed, but the search did not reveal 

anything. The officer then asked the companion whether he 

minded if the officer checked his person. The companion 

agreed and the officer felt hard objects similar to drug packages. 

The officer arrested the companion. The officer then asked the 

defendant, “Mind if I check you?” When the defendant agreed, a 

pat-down revealed objects similar to those found on the 

companion, and the officer arrested the defendant.

72 Fourth Amendment
ISSUE: Whether the defendant and his traveling companion 

were coerced (by being seized) into giving consent to 

search their persons?

HELD: No. The officers did not seize the defendant nor 

does the Fourth Amendment require officers to 

advise bus passengers of their right to refuse 

cooperation.

DISCUSSION: The Court previously held in Florida v. 

Bostick that the Fourth Amendment allows officers to approach 

bus passengers at random to ask questions and request their 

consent to search. The limitation to this authority is that a 

reasonable person must feel free to decline the requests or 

otherwise terminate the encounter. Applying Bostick’s rationale

to this case demonstrates that the officers did not seize the 

defendants. The officers gave the passengers no reason to 

believe that they were required to answer questions. They did 

not display weapons or make any intimidating movements, and 

they left the aisle free so that the defendants could exit. The 

communicating officer spoke to the defendants one by one and 

in a polite, quiet voice. The Court held that if this encounter 

occurred on a public street, no seizure would have occurred. 

The fact that an encounter takes place on a bus does not 

transform it into a seizure.



Soldal v. Cook County

 506 U.S. 56, 113 S. Ct. 538 (1992)

FACTS: A mobile home park owner requested the presence 

of deputy sheriffs to deter any resistance during an eviction. Up 

to five deputy sheriffs were present as park employees 

disconnected the trailer’s sewer and water connections and 

towed it out of the park, which caused serious damage to the 

home. The deputies informed the tenant that they were there to 

prevent him from interfering. Throughout this period, the 

deputies were aware that the park owner did not have an 

eviction order and that the eviction was unlawful.

Fourth Amendment 73
ISSUE: Whether the officers “seized” the mobile home?

HELD: Yes. The officers had “seized” the mobile home 

within the definition of the Fourth Amendment and 

could be subject to a § 1983 lawsuit.

DISCUSSION: The Court held that the forcible removal of 

the trailer home from the park was a “seizure” of the home 

within the meaning of the Constitution’s Fourth Amendment. 

This was true although the officers did not enter the home or 

rummage through the homeowner’s possessions and did not 

interfere with the homeowner’s liberty during the eviction. The 

Court cited precedents indicating that the Fourth Amendment 

protects against unreasonable seizures of property regardless of 

whether the seizure is the outcome of a search, and protects 

pure property interests even in a setting other than law 

enforcement.



A. ARRESTS

Atwater v. City of Lago Vista

 532 U.S. 318, 121 S. Ct. 1536 (2001)

FACTS: An officer observed the defendant violate a state 

seat belt law. The law is a misdemeanor, punishable only by a 

fine. The warrantless arrest of anyone violating this statute is 

expressly authorized by statute, but the police may issue a 

citation instead of making an arrest. The officer pulled the 

defendant over, verbally berated her, and handcuffed her. He 

placed the defendant in his squad car, and drove her to the 

local police station. Once there, she was searched incident to 

the arrest, and processed in the same manner as all other 

arrests.

ISSUE: Whether the officer acted unreasonably in arresting 

the defendant for a crime that only carried the 

possibility of a fine as a punishment?

74 Fourth Amendment
HELD: No. The Fourth Amendment does not forbid a 

warrantless arrest for a minor criminal offense, 

such as a misdemeanor seatbelt violation 

punishable only by a fine.

DISCUSSION: In interpreting the Fourth Amendment, the 

Court considers the traditional protections against 

unreasonable searches and seizures that were provided by the 

common law at the time of the Constitution’s founding. The 

Court found the history of the common law conflicted in this 

area. As a result, it rejected the defendant’s request to create a 

new rule of constitutional law forbidding custodial arrest, even 

upon probable cause, when conviction could not ultimately 

carry any jail time. The Court has traditionally recognized that 

a responsible Fourth Amendment balance is not well served by 

standards requiring sensitive, case-by-case determinations of 

government need. Otherwise, every discretionary judgment in 

the field would be converted into an occasion for constitutional 

review.



1. Premises

Payton v. New York

 445 U.S. 573, 100 S. Ct. 1371 (1980)

FACTS: Officers developed probable cause the defendant 

murdered the manager of a gas station two days earlier. Six 

officers went to his apartment intending to arrest him. The

officers did not have a warrant. Although light and music 

emanated from the apartment, there was no response to the 

officers’ knock on the metal door. The officers summoned 

additional assistance and, about thirty minutes later, used 

crowbars to break open the door and enter the apartment. No 

one was there. However, the officers found a .30 caliber shell 

casing that was later admitted into evidence at the defendant’s 

murder trial.

Fourth Amendment 75
ISSUE: Whether the warrantless entry into the apartment 

was reasonable?

HELD: No. The physical entry into the home is the chief 

evil against which the wording of the Fourth 

Amendment is directed.

DISCUSSION: Arrest in the home involves not only the 

invasion associated to all arrests, but also an invasion of the 

sanctity of the home. The law has long held that this is too 

substantial an invasion to allow without a warrant or exigent 

circumstances.

This applies equally to seizures of property. Absent exigent 

circumstances, that threshold may not reasonably be crossed 

without a warrant. It is a basic principle of Fourth Amendment 

law that searches and seizures inside a home without a warrant 

are presumptively unreasonable.



New York v. Harris

 495 U.S. 14, 110 S. Ct. 1640 (1990)

FACTS: Officers established probable cause the defendant 

committed a murder. Without obtaining an arrest warrant, the 

officers went to the defendant’s apartment to arrest him. The 

officers entered the apartment without the defendant’s consent 

and read the defendant his Miranda rights. The defendant told 

the officers he committed the murder and the officers arrested 

him. At the police station, officers again advised the defendant 

of his Miranda rights and the defendant provided a written 

statement in which he admitted to committing the murder.

ISSUES: 1. Whether the officers could enter the 

defendant’s home to arrest him based on 

probable cause alone?

2. Whether a violation of the rule in Payton v.

New York required suppression of the 

76 Fourth Amendment
defendant’s statement made to the officers at 

the police station.

HELD: 1. No. The officers needed to have an arrest 

warrant, the defendant’s consent, or some 

exigency to enter the defendant’s home to 

arrest him.

2. No. Where the officers had probable cause to 

arrest the defendant, the exclusionary rule 

does not bar the government’s use of a 

statement made by the defendant outside of 

his home, even though the statement was 

taken after an arrest made in the home in 

violation of Payton.

DISCUSSION: Probable cause does not, by itself, permit 

officers to intrude into a home to place someone inside under 

arrest. They must have a warrant, consent, or operate under 

some exigency (such as hot pursuit). The exclusionary rule may 

bar evidence discovered inside the home from the government’s 

use, including, in this case, the defendant’s first statement.

However, when the government has probable cause to arrest, 

the exclusionary rule will not bar the government’s use of a 

statement made by the defendant outside of his home, even 

though the statement was taken after an illegal entry into the 

home to make an arrest. The rule in Payton was designed to 

protect the physical integrity of the home, not to grant criminal 

suspects protection for statements made outside their premises.

There was no valid claim that the defendant was immune from 

prosecution because his person was the fruit of an illegal arrest. 

Nor is there any reason that the warrantless arrest required the 

government to release the defendant. Because the government

had probable cause to arrest the defendant for a crime, the 

defendant was lawfully in custody when he was removed to the 

police station. The Court noted that any evidence found while 

illegally in the defendant’s house would have been suppressed 

as fruits of the illegal entry. However, the defendant’s 

Fourth Amendment 77
statement taken at the police station was not the product of 

being in unlawful custody (as the officers had probable cause to 

arrest).



Kirk v. Louisiana

 536 U.S. 635, 122 S. Ct. 2458 (2002)

FACTS: Officers surveyed the defendant’s apartment after

receiving an anonymous tip regarding drug sales. The officers 

observed what appeared to be several drug transactions and 

allowed the buyers to leave the area. They stopped one of the 

buyers in a location removed from the defendant’s premises to 

confirm their suspicions. The officers then knocked on the 

defendant’s door, immediately entered and placed him under 

arrest. A subsequent search of his person resulted in the 

discovery of controlled substances.

ISSUE: Whether the government is justified in entering a 

premises to affect an arrest without consent, a 

warrant or exigent circumstance?

HELD: No. As a premises has a special status against a 

government intrusion, the government may only 

justify its entry with a warrant, consent or an 

exigent circumstance.

DISCUSSION: The Court stated that “[A]s Payton makes 

plain, police officers need either a warrant or probable cause 

plus exigent circumstances in order to make a lawful entry into 

a home.” As neither existed in this case, the entry was 

unlawful.



78 Fourth Amendment
2. Third Party Premises

Steagald v. United States

 451 U.S. 204, 101 S. Ct. 1642 (1981)

FACTS: A federal agent in Detroit was contacted by a 

confidential informant who suggested that he might be able to 

locate Ricky Lyons, a federal fugitive. The informant gave the 

agent a telephone number in the Atlanta area where, according 

to the informant, Lyons could be reached during the next 

twenty-four hours. The information was relayed to agents in 

Atlanta, who learned that the telephone number was assigned 

to the defendant’s house.

Two days later, agents went to the address to execute an arrest 

warrant for Lyons. They observed two men, Gaultney and the 

defendant, standing in front of the house. The agents frisked 

and identified the two men. Several agents proceeded to the 

house. Gaultney’s wife answered the door. She was detained 

while one agent searched the house for Lyons. Lyons was not 

found, but during the search of the house the agent observed 

what he believed to be cocaine. An agent was sent to secure a 

search warrant and in the meantime, a second search was 

conducted and incriminating evidence was discovered. During 

the third search of the house (which was conducted with the 

search warrant) forty-three pounds of cocaine were found.

ISSUE: Whether the evidence from all three searches was 

illegally obtained because the agents failed to 

obtain a search warrant before entering the house? 

HELD: Yes. An arrest warrant for a suspect does not grant

the authority to enter a third-party’s home to effect 

the arrest. A search warrant, consent or an 

exigency is necessary to do so.

DISCUSSION: The Fourth Amendment has drawn a firm 

line at the entrance to a dwelling, and, absent a warrant, 

exigent circumstances or consent, that threshold may not be 

crossed. The purpose of a warrant is to allow a neutral and 

Fourth Amendment 79
detached magistrate to assess whether the government has 

probable cause to make an arrest or conduct a search.

An arrest warrant authorizing the agent to deprive a person of 

his liberty also authorizes a limited invasion of that person’s 

privacy when it is necessary to arrest him in his home. 

However, the arrest warrant does not authorize the government

to deprive a third person of his liberty, nor does it include any 

authority to deprive that person of their interest in their home. 

Absent a search warrant, exigent circumstances or consent, law 

enforcement officers cannot search for the subject of an arrest 

warrant in the home of a third party.



Pembaur v. Cincinnati

 475 U.S. 469, 106 S. Ct. 1292 (1986)

FACTS: The government indicted Pembaur, a physician, for 

fraudulently accepting payments from state welfare agencies. 

During the investigation, grand jury subpoenas were issued for 

two of Pembaur’s employees. When the employees failed to 

appear before the grand jury, arrest warrants were issued for 

their arrests. When two deputies attempted to serve the 

warrants at Pembaur’s clinic, he barred the door and refused to 

allow the deputies enter the private part of the clinic. The 

deputies then called the County Prosecutor, who instructed 

them to “go in and get” the employees. After the deputies were 

unable to force the door open, they chopped it down with an axe 

and entered the private part of the clinic; however, the deputies

were unable to locate the two employees.

Pembaur filed a lawsuit against the county and others under 42 

U.S.C. § 1983 alleging that his Fourth and Fourteenth 

Amendment rights had been violated. Pembaur argued that, 

absent exigent circumstances, the Fourth Amendment prohibits

the government from searching an individual’s home or 

business without a search warrant, even to execute an arrest 

warrant for a third person.

80 Fourth Amendment
ISSUE: Whether law enforcement officers must obtain a 

search warrant to execute an arrest warrant in 

areas in which a third party has reasonable 

expectation of privacy? 

HELD: Yes. Generally, officers must obtain a search 

warrant to execute an arrest warrant in areas 

where a third party has reasonable expectation of 

privacy.

DISCUSSION: Absent some exigency or consent, law 

enforcement officers must have a search warrant to enter a 

third party’s zone of reasonable expectation of privacy to serve 

an arrest warrant. 



3. Arrest Warrants

Whiteley v. Warden

 401 U.S. 560, 91 S. Ct. 1031 (1971)

FACTS: A sheriff received information that the defendant 

had broken into a building and stolen some property. The 

sheriff filed a complaint that did not mention nor corroborate 

this information. It merely contained the officer’s conclusion 

that the defendant had committed the crime. Based on this 

complaint, the magistrate issued an arrest warrant and the 

defendant was arrested.

ISSUE: Whether the government can establish probable 

cause for an arrest warrant on information that was 

not presented to the issuing judge, but which the 

government possessed at the time of the warrant 

application?

HELD: No. An arrest warrant must be based on the facts 

as they were presented to the issuing judge. Any 

subsequent arrest based on that arrest warrant 

alone cannot be sustained by facts that were not 

Fourth Amendment 81
presented to the judge.

DISCUSSION: If a warrant is challenged, its validity may 

only be established by information in the affidavit (or 

complaint). The government may not present information other 

than that originally presented to the magistrate judge.

In this case, the arrest warrant was struck down as invalid. 

Since an objectively reasonable officer in the sheriff’s position 

would have recognized that the affidavit was insufficient, the 

“good faith exception” of United States v. Leon does not apply. 

Also, since the arresting officer did not have information other 

than the fact that an arrest warrant had been issued, the Court 

refused to consider information that was not contained in the 

complaint on which the arrest warrant had been based.



United States v. Watson

 423 U.S. 411, 96 S. Ct. 820 (1976)

FACTS: A reliable informant told a Postal Inspector that the 

defendant had provided the informant with a stolen credit card. 

The Inspector later verified that the card had been stolen. The 

informant also told the Inspector that the defendant had agreed 

to furnish additional stolen credit cards. A meeting was 

arranged between the informant and the defendant in a public 

place. Upon receiving a signal from the informant that the 

defendant was in possession of additional stolen credit cards, 

Postal Officers made a warrantless arrest of the defendant. 

When a search of his person failed to turn up the additional 

cards, the defendant consented to a search of his nearby 

vehicle. Prior to consenting to the vehicle search, the defendant 

was told that if anything was found, “it was going to go against 

[him].” Two credit cards in the name of other persons were 

found in the vehicle.

ISSUES: 1. Whether the warrantless arrest of the 

defendant was a violation of the Fourth 

Amendment, in that the officers had time to 

82 Fourth Amendment
obtain a warrant, but failed to do so?

2. Whether the defendant’s consent to search 

the vehicle was coerced?

HELD: 1. No. The officers had probable cause to arrest 

for the felony and, because the arrest 

occurred in public, they could do so without 

first obtaining a warrant.

2. No. There was no evidence to indicate that 

the defendant’s consent was coerced from 

him.

DISCUSSION: Nothing in the Fourth Amendment requires a 

warrant before an officer makes an arrest for a felony offense in 

a public place. Cases interpreting the Fourth Amendment have 

traditionally followed the common law approach, which 

permitted officers to make warrantless arrests that were 

committed in the officer’s presence. Common law permitted 

arrests for felonies not committed in the officer’s presence, but 

for which probable cause existed.

There was no evidence presented that the consent was coerced

or otherwise not a product of the defendant’s free will. There 

were no threats of force made, nor were there any promises 

made to the defendant that would have flawed his judgment. 

The fact that the defendant was in custody is not sufficient to 

show coercion, though it may be a factor. However, the 

defendant’s consent was given on a public street, after he had 

been given Miranda warnings, not in the confines of a police 

station. There was no evidence that the defendant was mentally 

deficient or unable to exercise his free choice, nor was there 

evidence that the defendant was a “newcomer to the law.” 

Based on the totality of the circumstances, his consent was 

voluntarily given.



Fourth Amendment 83
Maryland v. Buie

 494 U.S. 325, 110 S. Ct. 1093 (1990)

FACTS: Two men committed armed robbery in a restaurant. 

One of the robbers wore a red running suit. The government

obtained arrest warrants for the defendant and his suspected 

accomplice and went to his house to serve them. Once inside, 

the officers fanned out. One of the officers found the defendant 

in the basement and ordered him out, whereupon he was 

arrested, searched and handcuffed. Following the defendant’s 

arrest, another officer entered the basement “in case there was 

someone else down there.” While in the basement, he saw a red 

running suit on a stack of clothing and seized it. The red 

running suit was introduced into evidence against the 

defendant.

ISSUE: Whether the Fourth Amendment permits officers, 

when effecting the arrest of a suspect in his home, 

to conduct a warrantless protective sweep of the 

premises?

HELD: Yes. A limited protective sweep, in conjunction 

with an in-home arrest, is permitted when the 

searching officer possesses a reasonable belief that 

the area to be swept harbors an individual posing a 

danger to those on the arrest scene.

DISCUSSION: As an incident to an arrest, police officers 

may, as a precautionary matter and without probable cause or 

reasonable suspicion, look inside closets or other spaces 

immediately adjoining the place of arrest from which an attack 

could be launched. Beyond that, however, there must be 

articulable facts that would warrant a reasonably prudent 

officer in believing that the area to be swept harbors an 

individual posing a danger.

A “protective sweep” is a quick and limited search of a premises, 

incident to an arrest and conducted to protect the safety of the 

officers or others. Protective sweeps are not automatically 

permitted. They are also not full searches of the premises, but 

84 Fourth Amendment
extend only to a cursory inspection of those spaces where a 

person may be found as justified by the circumstances. A 

sweep may last no longer than is necessary to dispel the 

reasonable suspicion of danger, and in any event, no longer 

than it takes to complete the arrest and depart the premises. 

In this case, possessing an arrest warrant and probable cause 

to believe that the defendant was in his home, the officers were 

entitled to search anywhere in the house, including the 

basement, in which he might be found. However, once the 

defendant was found, that search for him ceased, and there was 

no longer justification for entering any rooms that had not been 

searched. Nevertheless, the government had an interest in 

taking steps to assure themselves that the defendant’s house 

was not harboring other people who were dangerous and could 

unexpectedly launch an attack. The second officer did not go 

into the basement to search for evidence, but rather to look for 

the suspected accomplice or anyone else who might pose a 

threat to the officers. The interest in ensuring the officer’s 

safety was sufficient to outweigh the intrusion this procedure 

entailed.



B. STOPS

1. Generally

Terry v. Ohio

 392 U.S. 1, 88 S. Ct. 1868 (1968)

FACTS: Police Detective McFadden had been a police officer 

for 39 years. He served 35 years of those years as a detective 

and 30 of those years walking a beat in downtown Cleveland. 

At approximately 2:30 p.m. on October 31, 1963, Officer 

McFadden was patrolling in plain clothes. Two men, Chilton 

and the defendant, standing on a corner, attracted his 

attention. He had never seen the men before, and he was 

unable to say precisely what first drew his eye to them. His 

interest aroused, Officer McFadden watched the two men. He 

Fourth Amendment 85
saw one man leave the other and walk past several stores. The 

suspect paused and looked in a store window, then walked a 

short distance, turned around and walked back toward the 

corner, pausing again to look in the same store window. Then 

the second suspect did the same. This was repeated 

approximately a dozen times. At one point, a third man 

approached the suspects, engaged them in a brief conversation, 

and left. Chilton and the defendant resumed their routine for 

another 10-12 minutes before leaving to meet with the third 

man.

Officer McFadden suspected the men were “casing a job, a 

stick-up,” and that he feared “they may have a gun.” Officer 

McFadden approached the three men, identified himself and 

asked for their names. The suspects “mumbled something” in 

response. Officer McFadden grabbed the defendant, spun him 

around and patted down the outside of his clothing. Officer 

McFadden felt a pistol in the defendant’s left breast pocket of 

his overcoat, which he retrieved. Officer McFadden then patted 

down Chilton. He felt and retrieved another handgun from his 

overcoat. Officer McFadden patted down the third man, Katz, 

but found no weapon. The government charged Chilton and the 

defendant with carrying concealed weapons.

ISSUES: 1. Whether the detective’s actions constituted a 

seizure?

2. Whether the detective’s actions constituted a 

search?

HELD: 1. Yes. Detective McFadden “seized” the 

defendant when he grabbed him.

2. Yes. Detective McFadden “searched” the 

defendant when he put his hands on the 

defendant’s person.

DISCUSSION: The Constitution only prohibits unreasonable 

searches and seizures. An officer “seizes” a person when he or 

she restrains their freedom to walk away. Likewise, there is a 

86 Fourth Amendment
“search” when an officer makes a careful exploration of outer 

surfaces of person’s clothing to attempt to find weapons. These 

searches and seizures must be reasonable to justify them under 

the Fourth Amendment.

In justifying any particular intrusion, the government must be 

able to point to specific and articulable facts that, taken with 

rational inferences from those facts, reasonably warrant that 

intrusion. Searches and seizures must be based on more than

hunches. Simple good faith on part of the officer is not 

sufficient.

The Court permitted Detective McFadden to conduct the limited 

intrusions of stopping the suspects based on articulable 

(reasonable) suspicion that criminal activity was afoot. The 

Court also found that Detective McFadden demonstrated 

reasonable suspicion that the men were armed and dangerous. 

Therefore, the Court allowed his limited intrusion onto their 

persons in search of weapons. While both standards are less 

than probable cause, the Court acknowledged that limited 

intrusions, based on articulated, reasonable suspicion can be 

reasonable.



Davis v. Mississippi

 394 U.S. 721, 89 S. Ct. 1394 (1969)

FACTS: A rape victim provided a physical description of her 

assailant. Officers found fingerprints on a window through 

which the rapist had apparently entered the victim’s home. On 

December 3, the defendant and several others were taken to 

police headquarters, without either a warrant or probable cause 

for an arrest, for fingerprinting and questioning. Over the next 

five days, the officers questioned the defendant on several 

occasions at a variety of locations, including police 

headquarters. He was also shown to the victim on several 

occasions, although she did not identify him as the rapist. On 

December 12, the defendant was arrested without either 

probable cause or a warrant. The officers fingerprinted him for 

Fourth Amendment 87
a second time two days later. These fingerprints were later 

shown to match those taken from the victim’s window.

ISSUE: Whether the fingerprints taken by officers on 

December 14th were obtained through an illegal 

detention under the Fourth Amendment?

HELD: Yes. Because the defendant’s detention on 

December 12th was unlawful, the fingerprints 

taken during his confinement were obtained in 

violation of the Fourth Amendment.

DISCUSSION: The fingerprint evidence taken on December 

14th was obtained while the defendant was still confined 

following his arrest on December 12th. Because the arrest and 

subsequent confinement were not based on either a warrant or 

probable cause, both violated the Fourth Amendment. The 

Court noted that the fingerprints taken on December 3rd were 

also taken in violation of the Fourth Amendment. There was no 

evidence that the defendant voluntarily accompanied the police 

to headquarters. Therefore, the seizure of the defendant on 

either date was constitutionally invalid, as were the fingerprints 

obtained during the illegal detention.



Florida v. Royer

 460 U.S. 491, 103 S. Ct. 1319 (1983)

FACTS: The defendant paid cash for a one-way airline ticket 

to New York City at Miami International Airport under an 

assumed name, which was legal at the time. The defendant 

also checked his two suitcases bearing identification tags with 

the same assumed name. Two officers had previously observed 

him and believed that his characteristics fit a “drug courier 

profile.” They approached him. Upon request the defendant 

produced his airline ticket and driver’s license, which bore his 

correct name. The defendant explained that a friend had made 

the ticket reservations in the assumed name. The officers told 

the defendant that they were narcotics investigators and that 

88 Fourth Amendment
they had reason to suspect him of transporting narcotics. 

Without returning his ticket or driver’s license, the officers

asked him to accompany them to a small room about forty feet 

away. Without the defendant’s consent, one of the officers 

retrieved his luggage and brought it to the room. Although he 

did not orally consent to a search of the luggage, the defendant 

produced a key and unlocked a suitcase in which marijuana 

was found.

ISSUES: 1. Whether the seizure of the defendant was 

unreasonable, tainting his consent?

2. Whether the defendant’s consent was validly 

granted.

HELD: 1. Yes. The officers exceeded the scope of their 

stop, turning it into an arrest without 

probable cause.

2. No. Consent granted during an illegal seizure 

is typically the result of government coercion.

DISCUSSION: Investigative detentions (“stops”) must be 

temporary and last no longer than is necessary to effectuate the 

purpose of the stop. Investigative methods employed should be 

the least intrusive means reasonably available to verify or dispel 

reasonable suspicion in a quickest time possible. Officers did 

not do that here as they failed to return his ticket and license. 

They did not have probable cause to either arrest the defendant 

or search his suitcases. Finally, consent granted during an 

illegal seizure will typically be held to be invalid as the result of 

government coercion.



Fourth Amendment 89
2. Terry and Traffic Stops

Delaware v. Prouse

 440 U.S. 648, 99 S. Ct. 1391 (1979)

FACTS: An officer stopped a vehicle occupied by the 

defendant. The officer testified that, prior to the stop, he had 

observed neither traffic or equipment violations, nor any other 

suspicious activity. Instead, he made the stop only to check the 

driver’s license and the vehicle’s registration documents. In 

making the stop, the officer was not acting pursuant to any 

standards, guidelines, or procedures promulgated by either his 

department or the State Attorney General. Upon approaching 

the vehicle, the officer smelled marijuana. He later seized 

marijuana in plain view on the floor of the car.

ISSUE: Whether the officer’s stop of the vehicle without 

reasonable suspicion violated of the Fourth 

Amendment?

HELD: Yes. The officer may not stop a vehicle without 

establishing that an articulable reason exists to 

suspect that criminal activity is afoot.

DISCUSSION: While the State has an interest in ensuring 

the safety of its roadways, an individual still retains a 

reasonable expectation of privacy in a vehicle, despite 

significant governmental regulation of vehicles. If an individual 

was subjected to unrestricted governmental intrusion every 

time he or she entered a vehicle, the Fourth Amendment 

prohibition against unreasonable searches and seizures would 

be severely undermined. Instead, “except in those situations in 

which there is at least articulable and reasonable suspicion that 

a motorist is unlicensed or that an automobile is not registered, 

or that either the vehicle or an occupant is otherwise subject to 

seizure for violation of law, stopping an automobile and 

detaining the driver in order to check his driver’s license and 

the registration of the vehicle are unreasonable under the 

Fourth Amendment.”

90 Fourth Amendment


United States v. Sharpe

 470 U.S. 675, 105 S. Ct. 1568 (1985)

FACTS: While patrolling a highway in an area under 

surveillance for suspected drug trafficking, a DEA agent noticed 

an apparently overloaded pickup truck. The truck had an 

attached camper and appeared to be traveling in tandem with a 

Pontiac. Savage was driving the truck, and the defendant was 

driving the Pontiac. The windows of the camper were covered 

with a thick bed-sheet material. After following the two vehicles 

for about 20 miles, the agent decided to make an “investigative 

stop” and radioed a highway patrol officer for assistance. The 

patrol officer and the DEA agent continued to follow the two 

vehicles. Both suspect vehicles engaged in evasive actions and 

started speeding as soon as the marked police car began to 

follow them. When the officers attempted to stop the vehicles, 

the defendant pulled over, but the truck continued, pursued by 

the state officer. The patrol officer stopped the truck, 

questioned Savage, and told him that he would be held until the 

DEA agent arrived. The agent arrived at the scene 

approximately 15 minutes after the truck had been stopped. 

After confirming his suspicion that the truck was overloaded 

and upon smelling marijuana, the agent opened the rear of the 

camper without Savage's permission and observed a number of 

burlap-wrapped bales resembling bales of marijuana the agent 

had seen in previous investigations. The agent then placed 

Savage and the defendant under arrest.

ISSUE: Whether the seizures met the Fourth Amendment’s 

requirement of brevity governing detentions on less 

than probable cause?

HELD: Yes. The seizures were reasonable under the 

Fourth Amendment as they were accomplished with 

the least amount of intrusion as possible.

DISCUSSION: In evaluating the reasonableness of an 

investigative stop, this Court examines “whether the officer's 

Fourth Amendment 91
action was justified at its inception, and whether it was 

reasonably related in scope to the circumstances that justified 

the interference in the first place.” In assessing whether a 

detention is too long to be justified as an investigative stop, it is 

appropriate to examine whether the government diligently 

pursued a means of investigation that was likely to confirm or 

dispel their suspicions quickly, during which time it was 

necessary to detain the defendant.

If an investigative stop continues indefinitely, at some point it 

can no longer be justified as an investigative stop. However, the 

Court refused to impose a rigid time limitation on Terry stops. 

It is clear that the brevity of the intrusion is an important factor 

in determining whether the seizure is reasonable. As much as a 

“bright line” rule would be desirable in evaluating whether an 

investigative detention is unreasonable, the Court held that 

common sense and ordinary human experience must govern 

over rigid criteria. Here, the DEA agent diligently pursued his 

investigation, and involved no unnecessary delay to the 

investigation. He concluded his investigation as quickly as he 

could. Therefore, the investigative stops were reasonable.



Illinois v. Caballes

 543 U.S. 405, 125 S. Ct. 769 (2005)

FACTS: The defendant was stopped for speeding. While the 

officer wrote the defendant a ticket, a second officer arrived at 

the scene with a drug-detection dog and walked the dog around 

the defendant’s vehicle. After the dog alerted on the trunk of 

the car, the officers opened the trunk, discovered a controlled 

substance, and arrested the defendant.

ISSUE: Whether the Fourth Amendment requires 

reasonable suspicion to justify the use of a drugdetection dog during a lawful traffic stop?

HELD: No. No suspicion is required to use a drugdetecting dog during a traffic stop as long as the

92 Fourth Amendment
use of the dog does not prolong the length of time 

normally associated with conducting such a stop.

DISCUSSION: The initial seizure of the defendant was lawful 

as the officer established probable cause the defendant was 

speeding. However, a seizure that is justified at its inception by 

the officer’s desire to write a ticket can become unlawful if the 

stop is prolonged beyond the time reasonably required to write 

the ticket. In this case, the court concluded the duration of the 

stop was entirely justified by the traffic offense and the ordinary 

tasks an officer must complete incident to such a stop. 

In addition, the court found that conducting a dog sniff, by 

itself, does not change the character of a lawful seizure, as long 

as the dog sniff does not infringe upon the defendant’s privacy 

interests. Consequently, the court held the use of a “welltrained narcotics-detection dog” during a lawful traffic stop, 

generally does not implicate legitimate privacy interests. Here, 

the dog sniff was performed on the exterior of the defendant’s 

car while he was lawfully seized for a traffic violation. Such a 

dog sniff that reveals no information other than the location of a 

substance that no individual has any right to possess does not 

violate the Fourth Amendment. 



Pennsylvania v. Mimms

 434 U.S. 106, 98 S. Ct. 330 (1977)

FACTS: Officers lawfully stopped the defendant for driving a 

vehicle with an expired license plate. One of the officers 

approached and asked the defendant to step out of the car and 

produce his driver’s license and registration. It was the 

common practice of the officer to order all drivers out of their 

vehicles whenever they conducted a stop for a traffic violation. 

As the defendant got out of the car, the officer noticed a large 

bulge under the defendant’s sport jacket. Fearing that the 

bulge might be a weapon, the officer frisked the defendant and 

discovered a loaded handgun. The defendant was immediately 

arrested for carrying a concealed deadly weapon and for 

Fourth Amendment 93
carrying a firearm without a license.

ISSUES: 1. Whether the officer’s order to get out of the 

car during a lawful traffic stop was 

reasonable under the Fourth Amendment?

2. Whether the frisk of the defendant was lawful 

under the Fourth Amendment?

HELD: 1. Yes. The officer’s order to get out of the car 

did not violate the Fourth Amendment, since 

the interest in the officer’s safety outweighed 

what was, at most, a mere inconvenience to 

the driver.

2. Yes. The frisk of the defendant, conducted 

when the officer observed a bulge under the 

defendant’s jacket, was lawful under the 

Fourth Amendment.

DISCUSSION: The key to any Fourth Amendment analysis 

is whether the challenged conduct was reasonable. The 

reasonableness of conduct depends on “a balance between the 

public interest and the individual’s right to personal security 

free from arbitrary interference by police officers.” With regard 

to the first issue, the safety of an officer is a legitimate and 

weighty concern (officer will not have to stand near traffic flow, 

etc.) that outweighs the minimal intrusion suffered by a driver 

who is asked to get out of a lawfully stopped car. With regard to 

the second issue, the Court’s decision in Terry v. Ohio was 

controlling. “The bulge in the defendant’s jacket permitted the 

officer to conclude that the defendant was armed and thus 

posed a serious and present danger to the safety of the officers.”



Maryland v. Wilson

 519 U.S. 408, 117 S. Ct. 882 (1997)

FACTS: An officer observed a speeding passenger car with 

94 Fourth Amendment
no regular license tag and a torn piece of paper bearing the 

name of a rental car company dangling from the rear of the car. 

He activated his lights and, after a mile and half, the suspect’s 

car pulled over. During the traffic stop, the officer noticed that 

the defendant, a passenger in the vehicle, appeared to be 

nervous. The officer ordered the defendant out of the vehicle. 

When he exited the vehicle, a quantity of crack cocaine fell to 

the ground. The officer placed the defendant under arrest.

ISSUE: Whether the officer’s action of ordering the 

passenger out of the vehicle was reasonable?

HELD: Yes. The Supreme Court extended the rule 

expressed in Pennsylvania v. Mimms to include 

passengers in lawfully stopped vehicles.

DISCUSSION: The touchstone of almost all Fourth 

Amendment analysis is whether the government’s intrusion on 

privacy was reasonable. Reasonableness depends on striking a 

balance between the public’s interest in conducting the search 

or seizure and the individual’s interest in preserved privacy. 

Here, the public has a great interest in preserving the safety of 

the officer. The officer must maintain an awareness of the 

driver and any passengers, any of whom can pose a threat, 

during the encounter. The passenger is only minimally 

intruded upon. The only change in their circumstance is that 

they will be outside the vehicle, where they cannot access 

concealed weapons found in the vehicle. Therefore, it is 

reasonable for officers to order passengers of lawfully stopped 

vehicles out of the conveyance.



United States v. Hensley

 469 U.S. 221, 105 S. Ct. 675 (1985)

FACTS: Six days after an armed robbery, an officer received 

reliable information that the defendant had been involved as the 

getaway driver. The officer immediately issued a “wanted flyer” 

to other police departments in the area, containing the 

Fourth Amendment 95
defendant’s name, as well as the date and location of the 

robbery. The flyer also stated that the defendant was wanted 

for investigation of an armed robbery and cautioned that he was 

considered to be armed and dangerous. Approximately six days 

later, an officer from a nearby police department stopped the 

defendant while driving a vehicle, based on the “wanted flyer.” 

The officer was unable to confirm whether a warrant had been 

issued for the defendant’s arrest before approaching the vehicle. 

The officer ordered the defendant and a passenger out of the 

vehicle. Another officer arrived on the scene and observed 

through the open passenger door of the vehicle the butt of a 

revolver. The passenger, a convicted felon, was arrested. Two

other weapons were found during the ensuing search and the 

defendant was arrested.

ISSUES: 1. Whether a Terry stop for a crime that has 

already been completed is lawful under the 

Fourth Amendment?

2. Whether a Terry stop can be based on a 

“wanted flyer” issued by officers who had a 

reasonable suspicion that the suspect has 

committed an offense?

HELD: 1. Yes. There is no limitation that the suspect 

stopped be either in the process of 

committing, or about to commit, a crime.

2. Yes. The validity of the “wanted flyer” rests 

on the issuing officer’s reasonable suspicion 

to stop the suspect.

DISCUSSION: Where officers have a reasonable suspicion 

that the suspect was involved in a prior crime and have been 

unable to locate him to investigate their suspicions, the 

government retains an interest in detecting and punishing those 

behaviors. This interest outweighs the intrusion caused by a 

Terry stop. However, the Court did not address whether Terry

stops to investigate all past crimes are permissible.

96 Fourth Amendment
Whether the officers who actually stopped the defendant had 

knowledge of the facts that gave rise to reasonable suspicion is 

immaterial. What is key is whether the officers who issued the 

“wanted flyer” had reasonable suspicion to conduct a Terry

stop. If so, the suspect may be stopped on the basis of the flyer 

to “check identification, pose questions to the person, or to 

detain the person briefly while attempting to obtain further 

information.” Here, the officers who stopped the defendant did 

so lawfully, in that the officer who issued the flyer had 

reasonable suspicion for a stop. Because the initial stop was 

lawful, all evidence seized in plain view or incident to the arrest 

that followed was admissible.



Hayes v. Florida

 470 U.S. 811, 105 S. Ct. 1643 (1985)

FACTS: The defendant was the primary suspect in a 

burglary. Officers had reasonable suspicion to believe the 

defendant was involved. Without a warrant, officers went to the 

defendant’s home to in an effort to get the defendant to provide 

them with his fingerprints. When the defendant expressed 

reluctance to go with the officers to the police station, one of the 

officers told the defendant they would arrest him. The officers 

did not have probable cause. The defendant told the officers he 

would rather go to the police station than be arrested. The 

defendant then went with the officers and was fingerprinted. 

When the officers determined the defendant’s fingerprints 

matched those recovered at the scene of the crime, he was 

arrested.

ISSUE: Whether the government can transport suspects 

and take their fingerprints on the basis of 

reasonable suspicion?

HELD: No. Where there is no probable cause to arrest a 

suspect, no uncoerced consent to journey to the 

police station, and no prior judicial authorization 

for detaining him, the investigative detention at the 

Fourth Amendment 97
station for fingerprinting purposes is unreasonable.

DISCUSSION: When the government forcibly removes a 

person from his home and transport him to the police station, 

the person has been seized. The Court refused to characterize 

this seizure, as brief as it may have been, as an investigative 

stop. The seizure was comparable to the acts of a traditional 

arrest. Therefore, the Court held this seizure, where not under 

judicial supervision, is sufficiently like an arrest to require 

probable cause.



3. Stops at the Border

United States v. Montoya de Hernandez

 473 U.S. 531, 105 S. Ct. 3304 (1985)

FACTS: The defendant traveled to Los Angeles on a direct 

flight from Columbia. A Customs Inspector noticed from her 

passport that the defendant had made approximately eight 

recent trips from Columbia to either Miami or Los Angeles. The 

Inspector knew that Bogota was a source city for drugs. The 

Inspector discovered that the defendant spoke no English and 

had no family or friends in the United States. She carried 

$5,000 in cash, primarily in $50 bills, and claimed that she had 

come to the United States to buy goods for her husband’s store 

in Bogota. However, she had not set up any meetings with 

retailers. She did not have hotel reservations. She could not 

remember how her airline ticket was purchased, and had only 

four changes of clothing. The defendant only possessed the 

shoes (high-heeled) she was wearing. She had no checks, credit 

cards, waybills, or letters of credit, although she did have old 

receipts and waybills, and a Colombian business card. Based 

upon these facts and his experience, the Inspector suspected 

the defendant was a “balloon swallower,” one who attempts to 

smuggle drugs into the country through her alimentary canal.

A female Inspector moved the defendant into a private area and 

conducted a pat-down and strip search. Nothing was found, 

98 Fourth Amendment
but the inspector noted a “firm fullness” in the defendant’s 

abdomen area. She was also wearing two pair of underpants 

with a paper towel lining the crotch area. The defendant was 

told she was suspected of smuggling drugs in her alimentary 

canal. When asked to be x-rayed, the defendant agreed, but 

stated she was pregnant. She agreed to a pregnancy test prior 

to the x-ray, but later withdrew her consent to the x-ray. For 

approximately sixteen hours, the defendant refused to eat or 

drink anything or use the toilet facilities. Customs officials 

sought a court order authorizing a pregnancy test, an x-ray, 

and a rectal examination. A Federal magistrate authorized the 

rectal examination and an involuntary x-ray, provided the 

doctor considered the defendant’s claim of pregnancy. At a 

local hospital, the defendant’s pregnancy test was negative. 

During the rectal examination, a balloon was found containing 

an unknown substance. The defendant was then formally 

arrested. Over the next four days, the defendant passed a total 

of 88 balloons containing 528 grams of cocaine.

ISSUES: 1. Whether the government developed a proper 

level of suspicion to detain the defendant at 

the border beyond the scope of a routine 

customs search and inspection?

2. Whether the sixteen-hour detention in this 

case was unreasonable under the Fourth 

Amendment?

HELD: 1. Yes. To detain a traveler at the border 

beyond the scope of a routine customs search 

and inspection, reasonable suspicion must 

exist.

2. No. Given the circumstances of this case, the 

sixteen-hour detention was reasonable.

DISCUSSION: Under the Fourth Amendment, searches and 

seizures must be reasonable. The test for “reasonableness” at 

the international border is significantly different than it is 

within the interior of the United States. Not only is an 

Fourth Amendment 99
individual’s expectation of privacy reduced at the border, but 

the government’s interest in protecting the border from those 

who would bring anything harmful into the country is 

substantial. As for the first issue, the “reasonable suspicion” 

standard “fits well into the situations involving alimentary canal 

smuggling at the border: this type of smuggling gives no 

external signs and Inspectors will rarely possess probable cause 

to arrest or search, yet governmental interests in stopping 

smuggling at the border are high indeed.” Here, the Inspector 

had reasonable suspicion to detain the defendant beyond the 

scope of a routine customs search and inspection.

As for the second issue, it is obvious that alimentary canal 

smuggling cannot be detected in the amount of time that most 

other illegal activities can. The detention in this case was 

further lengthened by the defendant’s own refusal to be either 

x-rayed or have a bowel movement. The Court refused to 

charge the government with delays in investigatory detentions 

attributable to the suspect’s evasive actions. For these reasons, 

the sixteen-hour detention was reasonable under the Fourth 

Amendment.



Almeida-Sanchez v. United States

 413 U.S. 266, 93 S. Ct. 2535 (1973)

FACTS: The defendant was stopped and searched by a 

roving patrol of the U.S. Border Patrol. He challenged the 

constitutionality of the Border Patrol’s warrantless search of his 

automobile 25 air miles north of the Mexican border. The 

search, made without probable cause or consent, uncovered 

marihuana, which was used to convict the defendant of a 

federal crime. The government sought to justify the search on 

the basis of a federal law that provided for warrantless searches 

of automobiles and other conveyances “within a reasonable 

distance from any external boundary of the United States.” 

Regulations defined “reasonable distance” as “within 100 air 

miles from any external boundary of the United States.”

100 Fourth Amendment
ISSUE: Whether roving patrols could engage in searches 

and seizures without probable cause or reasonable 

suspicion?

HELD: No. The warrantless search of the defendant’s 

automobile, made without probable cause or 

consent, violated the Fourth Amendment.

DISCUSSION: The government could not justify the search 

on the basis of any case law applicable to automobile searches, 

as probable cause was lacking. Nor could the government 

justify the search by analogy with a border inspection, as the 

officers had no reason to believe that the defendant had crossed 

the border (nexus with the border). Nor did the government 

have the defendant’s consent to conduct the search. The Court 

explained that travelers may be stopped in crossing an 

international boundary (nexus) because of national selfprotection. However, the search of the defendant’s automobile 

on a road lying at all points at least 20 miles north of the 

Mexican border, was different. Those lawfully within the 

country and entitled to the use of public highways have a right 

of free passage without interruption or search.



United States v. Martinez-Fuerte

 428 U.S. 543, 96 S. Ct. 3074 (1976)

FACTS: The U.S. Border Patrol operated a fixed checkpoint 

on a major highway directly north of the Mexican border. They 

stopped vehicles there with no suspicion to determine if the 

occupants were lawfully in the United States.

ISSUE: Whether the government must demonstrate 

reasonable suspicion to engage in fixed checkpoint 

seizures?

HELD: No. The government’s seizures are reasonable as 

they are limited in scope and justified by compelling 

need.

Fourth Amendment 101
DISCUSSION: The Court held that the Border Patrol’s 

routine stopping of vehicles at a permanent checkpoint located 

on a major highway away from the Mexican border for brief 

questioning of the vehicle’s occupants is consistent with the 

Fourth Amendment. These stops and subsequent questioning 

may be made at reasonably located checkpoints with no 

individualized suspicion that the particular vehicle contains 

illegal aliens. To require that such stops always be based on 

reasonable suspicion would be impractical because the flow of 

traffic tends to be too heavy to allow the particularized study of 

a given car necessary to identify it as a possible carrier of illegal 

aliens. The Court based its conclusion on the fact that while 

the need to make routine checkpoint stops is great, the 

intrusion on privacy interests is limited. The Court contrasted 

the level of intrusion at a checkpoint stop (none required) with 

that of a roving patrol (reasonable suspicion required) and cited 

relatively low expectation of privacy in an automobile.



United States v. Brignoni-Ponce

 422 U.S. 873, 95 S. Ct. 2574 (1975)

FACTS: Two Border Patrol agents in Southern California 

were observing northbound traffic from their vehicle parked on 

the side of an interstate highway. They stopped the defendant’s 

car because “its three occupants appeared to be of Mexican 

descent.” After determining that the defendant had entered the 

country illegally, the officers arrested him.

ISSUE: Whether a “roving” patrol can stop a vehicle in an 

area near the border and question its occupants 

when the only ground for suspicion is that the 

occupants appear to be of Mexican ancestry?

HELD: No. Except at the border and its functional

equivalents, Border Patrol agents in “roving” patrols

may stop vehicles only if they have reasonable 

suspicion that the vehicles contain illegal aliens.

102 Fourth Amendment
DISCUSSION: The government’s substantial interest in 

effectively deterring illegal aliens from entering this country 

outweighs the minimal intrusion of a brief stop and questioning 

of a vehicle and its occupants at the border. However, the 

Court held that stops made by “roving” patrols on a random 

basis were unreasonable under the Fourth Amendment. Only 

“when an officer’s observations lead him reasonably to suspect 

that a particular vehicle may contain aliens who are illegally in 

the country, may he stop the car briefly and investigate the 

circumstances that provoke suspicion.” Similarly, the Fourth 

Amendment prohibits detaining individuals for questioning 

about their citizenship unless reasonable suspicion exists that 

the individual is an illegal alien. 

Here, the only basis for stopping the vehicle and questioning the 

occupants was the fact the occupants appeared to be of 

Mexican ancestry. Standing alone, this does not furnish 

reasonable suspicion to believe the occupants were illegal 

aliens. Facts that Border Patrol agents may rely upon to 

establish reasonable suspicion include (1) the location of the 

area where the vehicle was encountered, including its proximity 

to the border, the usual patterns of traffic on the road, and 

previous experience with alien traffic; (2) information about 

recent border crossings in the area; (3) the driver’s behavior, 

such as erratic driving or obvious attempts to evade officers; 

and (4) aspects of the vehicle itself, such as its size, the number 

of passengers, and whether it appears heavily loaded.



IV. LEVELS OF SUSPICION

A. PROBABLE CAUSE

Ornelas v. United States

 517 U.S. 690, 116 S. Ct. 1657 (1996)

FACTS: The defendant’s challenged the officer’s claims of 

reasonable suspicion to stop and probable cause to search their 

vehicle.

Fourth Amendment 103
ISSUE: Whether a uniform definition of reasonable 

suspicion and probable cause exists?

HELD: No. These terms are “fluid concepts” requiring 

interpretation from judicial officers.

DISCUSSION: The Court flatly stated “[A]rticulating 

precisely what ‘reasonable suspicion’ and ‘probable cause’ mean 

is not possible. They are commonsense, nontechnical 

conceptions that deal with ‘the factual and practical 

considerations of everyday life on which reasonable and 

prudent men, not legal technicians, act (underline added).’” 

Therefore, these terms are not “not readily, or even usefully, 

reduced to a neat set of legal rules.”

The Court has described (though not defined) reasonable 

suspicion as “a particularized and objective basis” for 

suspecting the person stopped of criminal activity (quoting 

United States v. Cortez, 449 U.S. 411 (1981)). Probable cause 

has been described (not defined) as known facts and 

circumstances sufficient to warrant a person of reasonable 

prudence in the belief that contraband or evidence of a crime 

will be found. Each case must be determined on its own facts. 

“The principal components of a determination of reasonable 

suspicion or probable cause will be the events which occurred 

leading up to the stop or search, and then the decision whether 

these historical facts, viewed from the standpoint of an 

objectively reasonable police officer, amount to reasonable 

suspicion or to probable cause (underline added).”



Henry v. United States

 361 U.S. 98, 80 S. Ct. 168 (1959)

FACTS: Two officers were investigating the theft of an 

interstate shipment of whiskey. On two separate occasions, 

they witnessed the defendant and another man drive into an 

alley, enter a residence, and return with cartons that were 

placed in a vehicle. Prior to this time, the defendant was not 

104 Fourth Amendment
suspected of any criminal activity. The officers were too far 

away to determine the size, number, or contents of the cartons. 

Following the second observation, the officers seized the vehicle 

without a search or arrest warrant. The vehicle was searched, 

and both the cartons and the defendant were placed in the 

officers’ vehicle and taken to the agents’ office. Once the 

officers learned the cartons contained stolen radios, the 

defendant was formally arrested.

ISSUE: Whether the officers had probable cause when they 

searched the defendant’s vehicle?

HELD: No. The officers could not articulate facts to 

indicate a probability that the defendant was 

involved in criminal activity or that they would find 

evidence of criminal activity.

DISCUSSION: While packages had been stolen, that fact did 

not make every person seen carrying a package subject to arrest 

and search. It also did not make every package subject to 

seizure. The acts of driving a car in an alley, walking inside 

residential premises, picking up cartons, and carrying the 

cartons away, were, without more, not indications of criminal 

activity. There was no evidence that the defendant and the 

other man were acting secretly or in an evasive manner. The 

officers had no idea what was in the cartons when they seized 

the car. Therefore, their observations did not amount to 

probable cause.



Draper v. United States

 358 U.S. 307, 79 S. Ct. 329 (1959)

FACTS: On September 7, a Federal narcotics agent in 

Denver received information from a reliable source that the 

defendant would be traveling to Denver from Chicago with three 

ounces of heroin. The source provided a detailed physical 

description of the defendant, as well as a description of the 

clothing he would be wearing. The source stated the defendant 

Fourth Amendment 105
would be returning to Denver on a train on either September 

8th or 9th, would be carrying “a tan zipper bag,” and that he 

habitually “walked real fast.” On September 9, the agent 

observed the defendant get off an incoming Chicago train, who 

began walking “fast” toward the exit. The defendant had the 

exact physical attributes, and was wearing the clothing 

predicted by the source. He was carrying a tan zipper bag in 

his right hand. The agent then approached and arrested the 

defendant. The officers found heroin and a syringe during the 

search incident to the arrest.

ISSUES: 1. Whether hearsay evidence that is not legally 

admissible in a criminal trial can be used in 

developing probable cause for an arrest?

2. Whether the officer established probable 

cause to arrest the defendant?

HELD: 1. Yes. Probable cause for an arrest can be 

established through hearsay evidence.

2. Yes. The information given to the agent was 

sufficient to establish probable cause.

DISCUSSION: It is well settled that an arrest may be made 

upon hearsay evidence. There is a significant difference 

between what is required to prove guilt in a criminal case and 

what is required to substantiate the existence of probable 

cause. While hearsay evidence may not be admissible in a 

criminal trial, it may be used to establish probable cause.

Here, the agent received information from a reliable source. In 

pursuing that information, the agent “personally verified every 

facet of the information given him by the reliable source, except 

whether the defendant had three ounces of heroin with him.” 

The Court also stated that “with every other bit of the reliable 

source’s information being personally verified, the agent had 

probable cause to believe that the remaining bit of unverified 

information - that the defendant had the heroin with him - was 

likewise true.”

106 Fourth Amendment


Sibron v. New York

 392 U.S. 40, 88 S. Ct. 1889 (1968)

FACTS: Throughout the course of a day and night, an

officer observed the defendant with 9 to 11 known narcotics 

addicts. At no time did the officer hear any conversation 

between the defendant and these persons, nor did he witness 

any exchange between them. After seeing the defendant in a 

restaurant with three of the known addicts, the officer 

approached. They went outside. There was nothing in the 

record to determine whether the defendant went outside with 

the officer voluntarily or was ordered out to the street. Once 

outside, the officer said to the defendant, “you know what I am 

after.” The defendant mumbled something and reached into his 

pocket. At the same time, the officer reached into the 

defendant’s pocket and found a controlled substance. The 

defendant was convicted of unlawful possession of heroin. At 

trial, there was nothing to show that the officer’s safety was a 

potential justification for the intrusion into the defendant’s 

pocket.

ISSUE: Whether the officer established probable cause to 

believe the defendant was in possession of a 

controlled substance?

HELD: No. The officer’s observations did not meet the 

criteria to establish probable cause.

DISCUSSION: While the officer had seen the defendant in 

conversation with known drug addicts, he was unaware of the 

topics being discussed. Further, he saw nothing pass between 

the defendant and any of the addicts. The officer could not 

articulate facts that demonstrated probable cause. Therefore, 

the search could not be justified as incident to that arrest. The 

officer also could not justify the search on the grounds that he 

reasonably suspected the defendant to be armed and 

dangerous. At no time could the officer claim that his actions 

were taken in order to protect himself from potential weapons 

Fourth Amendment 107
carried by the defendant. Additionally, the scope of the search 

exceeded the allowable limits of Terry v. Ohio. The officer did 

not pat-down the defendant’s outer garments searching for 

weapons, but instead inserted his hand directly into the 

defendant’s pocket to search for a controlled substance.



Peters v. New York

 392 U.S. 40, 88 S. Ct. 1889 (1968)

FACTS: An off-duty officer was in his apartment when he 

heard his front door knob rattle. He looked into the hallway 

through the door’s peephole and observed “two men tiptoeing 

out of the alcove toward the stairway.” Although he had lived in 

the apartment for approximately 12 years, he did not recognize 

either person. After calling the police and arming himself, the 

officer again looked through the peephole and saw both men 

tiptoeing. Believing that the two men were attempting to 

commit burglary, the officer left his apartment, slamming the 

door as he went into the hallway. Upon hearing the door slam, 

the men began to run down the stairs. The officer chased them. 

He caught the defendant, who claimed to be visiting a girlfriend. 

The officer then frisked the defendant and discovered a hard 

object in his pocket. Believing the object may be a knife he 

retrieved it. It was an envelope containing burglar tools.

ISSUE: Whether the officer had probable cause to arrest 

the defendant?

HELD: Yes. Based on the totality of the circumstances, the 

officer had probable cause to make the arrest.

DISCUSSION: The officer heard strange noises outside his 

apartment that lead him to believe someone was trying to get 

inside. When he investigated, he observed two men engaged in 

stealth in the hallway. Although he had lived in the apartment 

for 12 years, he did not recognize either man. When he entered 

the hallway, the men fled. “Deliberately furtive actions and 

flight at the approach of strangers or law officers” are highly 

108 Fourth Amendment
indicative of criminal intent. Considering these facts, by the 

time the officer seized the defendant fleeing down the stairway, 

he had probable cause to arrest him for attempted burglary.



Maryland v. Pringle

 540 U.S. 366, 124 S. Ct. 795 (2003)

FACTS: After stopping a vehicle for speeding in an early 

morning hour, a police officer obtained consent from the owneroperator to search. The officer found $763 in the glove 

compartment and five small bags containing a controlled 

substance behind the back-seat armrest. The officer asked all 

three occupants of the vehicle who owned the drugs and money. 

When all three denied ownership he placed them under arrest. 

Ultimately, the defendant admitted to committing the crime.

ISSUE: Whether the officer had probable cause to believe 

that the defendant committed the crime?

HELD: Yes. Based on the totality of the circumstances, the 

officer established probable cause that a crime had 

been committed and the defendant was involved in 

the crime.

DISCUSSION: The Court held that “[I]t is uncontested in the 

present case that the officer, upon recovering the five plastic 

glassine baggies containing suspected cocaine, had probable 

cause to believe a felony had been committed.” The more 

difficult issue is whether the officer had probable cause that the 

defendant committed the crime. The Court has held on several 

previous occasions that the probable cause is a “practical, 

nontechnical conception.” See Illinois v. Gates (1983) (quoting

Brinegar); see, e.g., Ornelas v. United States (1996); United 

States v. Sokolow (1989). It is futile to assign a precise 

definition or attempt to quantify by percentages probable cause 

as its exactness depends on the totality of the circumstances.

In this case, the defendant was understandably assumed to be 

Fourth Amendment 109
involved in criminal activity. He was one of three occupants, 

out very early in the morning, in a vehicle that contained a large 

amount of cash and a controlled substance (packaged in a 

manner to indicate drug dealing), both located where the 

defendant had easy access, and all three failed to provide 

information about the ownership of these incriminating items. 

The Court found it reasonable that all three had knowledge of 

and exercised control over the controlled substance based on 

these circumstances. Therefore, the officer had probable cause 

to arrest any or all of the three, including the defendant.



Florida v. Harris

 568 U.S. ___, 133 S. Ct. 1050 (2013)

FACTS: An officer pulled the defendant’s truck over due to 

an expired license plate. During this encounter, the officer

observed that the defendant was “visibly nervous” in that he 

could not sit still, was shaking and breathing rapidly. He asked 

the defendant for permission to search the vehicle, which the 

defendant declined. The officer retrieved his drug-sniffing dog 

from his patrol vehicle and walked him around the defendant’s 

truck. The dog alerted to the presence of controlled substances 

in the truck. The officer, believing he had probable cause, 

began a mobile conveyance search of the truck, resulting in his 

discovery of precursor materials for the manufacturing of 

controlled substances.

ISSUE: Whether a trained drug-sniffing dog’s alert can 

establish probable cause?

HELD: Yes. The reliability of a well-trained drug dog is

such that a court is entitled to base a finding of 

probable cause on its alert.

DISCUSSION: The defendant asked the Supreme Court to 

install a greater hurdle for the government before using 

evidence created by drug-sniffing dogs. The Court has 

previously “rejected rigid rules, bright-line tests, and 

110 Fourth Amendment
mechanistic inquiries in favor of a more flexible, all-thingsconsidered approach”...in probable cause determinations. In 

doing so, the Court held that reviewing courts are entitled to 

find probable cause exists on the signal of a certified, trained 

drug-sniffing dog. 



B. REASONABLE SUSPICION

Adams v. Williams

 407 U.S. 143, 92 S. Ct. 1921 (1972)

FACTS: In the early morning hours in a high crime 

neighborhood, a reliable informant told an officer the defendant, 

who sitting in a nearby car, possessed narcotics and a weapon. 

The officer approached the car and asked the defendant to get 

out. The defendant rolled down the window instead. When he 

did so, the officer reached into the car and removed the gun 

from the defendant’s waistband. While the gun was not visible 

from outside the car, it was in the specific location identified by 

the reliable source. The defendant was arrested for unlawful 

possession of a firearm. The subsequent search incident to the 

arrest uncovered a substantial quantity of heroin.

ISSUE: Whether the information provided by the reliable 

informant justify the stop of the defendant and the 

seizure of the gun?

HELD: Yes. In Terry v. Ohio, the Court recognized that an 

officer making an investigatory stop may frisk a 

suspect when the officer reasonably believes that 

the suspect is armed and dangerous.

DISCUSSION: Citing Terry, the Court reiterated “so long as 

[an] officer is entitled to make a forcible stop, and has reason to 

believe that the suspect is armed and dangerous, he may 

conduct a weapons search limited in scope to this protective 

purpose.” Here, the officer relied upon information personally 

provided to him by a reliable informant. While the information 

Fourth Amendment 111
may have been insufficient for an arrest or search warrant, it 

was reliable enough for the officer’s investigatory stop of the 

defendant. The defendant was sitting alone, late at night, in a 

high crime area, and was reportedly carrying narcotics and a 

weapon by a reliable source. When asked to get out of the 

vehicle, the defendant remained inside in a position where his 

movements could not be clearly seen. These facts gave the 

officer ample reason to fear for his safety and justified the 

limited intrusion required to obtain the weapon.



Brown v. Texas

 443 U.S. 47, 99 S. Ct. 2637 (1979)

FACTS: A Texas statute made it a crime for any person to 

refuse to give his name and address to an officer “who has 

lawfully stopped him and requested the information.” Two 

officers observed the defendant and another man walk away 

from one another in an alley located in an area known for drug 

trafficking. While the men were separated when first observed, 

both officers believed the two had been meeting, or were about 

to meet, until the officers approached. Because the situation 

“looked suspicious” and the officers had never seen him in that 

area before, the defendant was stopped to ascertain his identity. 

The defendant was not suspected of any specific misconduct, 

nor were there any facts to indicate the defendant was armed. 

Upon being stopped, the defendant refused to identify himself. 

He was arrested and convicted for violating the Texas statute.

ISSUE: Whether the investigatory stop of the defendant was 

lawful under the Fourth Amendment?

HELD: No. The officers did not have facts equating to 

reasonable suspicion that criminal activity was 

afoot. The defendant was not “lawfully stopped” as 

required by the Texas statute. 

DISCUSSION: When the defendant was stopped by the 

officers for the purpose of obtaining his identity, he was “seized” 

112 Fourth Amendment
within the meaning of the Fourth Amendment. Whether this 

seizure was reasonable depends on a balancing between 

society’s interest and an individual’s interest in being free from 

random interference by law enforcement officers. In order for 

an investigatory stop to be lawful, the officer must have 

reasonable suspicion, based on articulable facts, that the 

suspect is involved in criminal activity. Here, the officers did 

not have reasonable suspicion. While the defendant may have 

“looked suspicious,” the officers could not articulate facts to 

support this conclusion. The officer conceded that the purpose 

of the stop was simply to ascertain the defendant’s identity. 

Standing alone, the fact that the defendant was in a drug 

trafficking area is insufficient to conclude he was engaged in 

criminal conduct. Because the stop was unlawful, application 

of the Texas statute to these facts was unconstitutional.

NOTE: The Court did not decide whether an individual who 

was lawfully stopped could be compelled to identify himself.



United States v. Sokolow

 490 U.S. 1, 109 S. Ct. 1581 (1989)

FACTS: DEA agents developed the following facts 

concerning the defendant: (1) he paid $2,100 for two airplane 

tickets from a roll of $20 bills; (2) he was traveling under a 

name that did not match the name for the telephone number he 

had given to the ticket agent (which was legal at that time); (3) 

his original destination was Miami, Florida, a known source city 

for controlled substances; (4) he stayed in Miami for a total of 

48 hours; (5) a round-trip flight from Honolulu to Miami takes 

20 hours; (5) he appeared nervous during his trip; and (6) he 

did not check his luggage. Based on these facts, the DEA 

agents decided to stop the defendant. His shoulder bag was 

removed from him and a narcotics detection dog signaled that 

controlled substances were inside. The agents obtained a 

search warrant, and found controlled substances in his 

luggage.

Fourth Amendment 113
ISSUE: Whether the DEA agents who stopped the 

defendant had reasonable suspicion that he was 

involved in criminal activity at the time of the stop?

HELD: Yes. Based on the totality of the circumstances 

known to the agents at the time of the stop, they 

had a reasonable suspicion that criminal activity 

was afoot.

DISCUSSION: “Reasonable suspicion,” like probable cause, 

is difficult to define. In determining the legality of a Terry stop, 

the totality of the circumstances is considered. None of the 

factors known to the agents at the time of the stop, standing 

alone, was proof of illegal activity. However, when considered 

together, the facts amounted to reasonable suspicion. The 

Court emphasized that “there could, of course, be 

circumstances in which wholly lawful conduct might justify the 

suspicion that criminal activity was afoot.”



Alabama v. White

 496 U.S. 325, 110 S. Ct. 2412 (1990)

FACTS: Officers received an anonymous telephone tip that 

the defendant would be leaving an apartment complex at a 

certain time, driving a brown Plymouth station wagon with a 

broken right taillight lens. The anonymous source stated the 

defendant would drive to a specific motel and would be in 

possession of approximately one ounce of cocaine in a brown 

attaché case. The officers did not know if the anonymous caller 

was reliable or how the caller knew this information. The 

officers went to the apartment complex and located a Plymouth 

station wagon with a broken right taillight in the parking lot. 

The officers observed the defendant leave the building and enter 

the station wagon. The officers followed her as she drove to the 

motel identified by the anonymous source. The officers stopped 

her. After obtaining the defendant’s consent to search the 

vehicle, the officers found a locked brown attaché case. The 

defendant provided the combination to the case and upon 

114 Fourth Amendment
opening it the officers found marijuana. The defendant was 

arrested. During processing, the officers found cocaine in her 

purse.

ISSUE: Whether the anonymous tip, as corroborated by 

independent government observations, was 

sufficiently reliable so as to give the officers 

reasonable suspicion for the stop of the defendant?

HELD: Yes. The corroboration of the anonymous tip by 

independent police work furnished reasonable 

suspicion for the stop.

DISCUSSION: The Court held that “the totality of the 

circumstances” approach for determining probable cause is also 

relevant for determining reasonable suspicion. While the tip 

provided in this case does not, by itself, give rise to reasonable 

suspicion, the corroboration of significant aspects of the tip by 

independent investigation provided the indicia of reliability. The 

Court found it to be critical that the tipster was able to predict 

the defendant’s future behavior. This showed the tipster

possessed “inside information - a special familiarity with the 

defendant’s affairs” that most members of the general public 

would not have. The corroboration of much of the tipster’s 

information gave reason to believe that he was “honest” and 

“well informed.” Based on these facts, “it is not unreasonable to 

conclude in this case that the independent corroboration by the 

police of significant aspects of the informer’s predictions 

imparted some degree of reliability to the other allegations made 

by the caller.”



Florida v. J. L.

 529 U.S. 266, 120 S. Ct. 1375 (2000)

FACTS: The police received a tip from an anonymous caller, 

who reported that a young black male standing at a particular 

bus stop and wearing a plaid shirt was carrying a gun. Officers 

went to the bus stop and saw three black males, one of whom, 

Fourth Amendment 115
the defendant, was wearing a plaid shirt. The officers had no 

reason to suspect any of the three of illegal conduct other than 

the anonymous report. One officer frisked the defendant and 

seized a gun from his pocket. The officers arrested the 

defendant for carrying a concealed firearm without a license 

and possessing a firearm while under the age of 18.

ISSUE: Whether law enforcement officers can base 

reasonable suspicion solely on an anonymous tip?

HELD: No. Reasonable suspicion must be based on 

something more than an anonymous tip.

DISCUSSION: An officer, for the protection of himself and 

others, may conduct a frisk for weapons of persons engaged in 

unusual conduct where the officer reasonably suspects the 

person is armed and presently dangerous. Here, the officer’s 

suspicion that the defendant was carrying a weapon did not 

develop from his own observations but solely from a call made 

from an unknown location by an unknown caller. The Court 

held that this tip lacked sufficient indicia of reliability to provide 

reasonable suspicion to conduct a frisk. The tip did not provide 

predictive information that left the government without means 

to test the informant’s knowledge or credibility. Reasonable 

suspicion to conduct stops and frisks requires that a tip be 

reliable in its assertion of illegality, not just in its tendency to 

identify a person.



Navarette v. California

 572 U.S. ___, 134 S. Ct. 1683 (2014)

FACTS: A police dispatcher received an anonymous call from a 

woman stating a silver Ford pickup truck had just run the 

woman’s vehicle off the roadway. The woman provided the 

pickup truck’s license plate number, approximate location and 

direction of travel. The dispatcher broadcast the woman’s 

information and a few minutes later police officers saw a silver 

Ford pickup truck with the same license plate number, near the 

116 Fourth Amendment
location and traveling in the same direction reported by the 

woman. The officer conducted a traffic stop, and as he and a 

back-up officer approached the pickup truck, the officers 

smelled the odor of marijuana. The officers searched the 

pickup truck, found four large bags of marijuana and arrested 

the driver, Navarette, and his brother, who was a passenger. 

Navarette moved to suppress the marijuana, arguing the 

anonymous 911 call did not provide the officers reasonable 

suspicion to conduct the traffic stop.

ISSUE: Whether the Fourth Amendment requires an officer 

who receives an anonymous tip regarding a 

drunken or reckless driver to corroborate 

dangerous driving before stopping the vehicle. 

HELD: No. In this case, the traffic stop did not violate the 

Fourth Amendment because, under the totality of 

the circumstances, the officer had reasonable 

suspicion that the driver of the truck was 

intoxicated.

DISCUSSION: The court held the 911 call was sufficiently 

reliable to credit the woman’s claim that Navarette’s truck had 

run her vehicle off the road. First, the woman described the 

truck, provided its license plate information and gave the 

truck’s location to the 911 dispatcher. Second, the police officer 

located the truck approximately 19 miles away from the scene 

of the incident, approximately 18 minutes after the 911 call. 

Third, the woman’s use of the 911 system was a factor to take 

into account when determining the reliability of the information 

she provided. The 911 system had features that allowed for 

identifying and tracing callers, which would allow a reasonable 

officer to believe that a person might think twice before calling 

in a false report. Consequently, the woman’s detailed, firsthand 

description of Navarette’s truck and dangerous driving along 

with the timeline of events suggested the woman called 911 

shortly after she was run off the road, which entitled her tip to 

be considered reliable by the police officer.

Fourth Amendment 117
Next, the court recognized a reliable tip will justify an 

investigative stop only if the tip creates a reasonable suspicion 

that “criminal activity may be afoot.” In this case, the court 

held the woman’s report of being run off the roadway created 

reasonable suspicion of an ongoing crime such as drunk 

driving. The court stated that running another vehicle off the 

road suggests lane-positioning problems, decreased vigilance, 

impaired judgment, or some combination of recognized drunkdriving cues. Because the 911 call established reasonable 

suspicion to stop Navarette, the officer did not need to follow 

Navarette to personally observe suspicious driving before 

conducting the traffic stop. 



Illinois v. Wardlow

 528 U.S. 119, 120 S. Ct. 673 (2000)

FACTS: The defendant fled upon seeing a caravan of police 

vehicles converge on an area known for heavy narcotics 

trafficking. Seeing the defendant run, officers pursued him. 

They caught the defendant and conducted a frisk. The officers 

testified that in their experience there were usually weapons 

near narcotics transactions. They discovered a handgun on the 

defendant and arrested him.

ISSUE: Whether the officers had reasonable suspicion to 

stop the defendant?

HELD: Yes. Based on the type of area the officers were 

approaching and the behavior of the suspect, the 

officers established reasonable suspicion.

DISCUSSION: Where officers have a reasonable, articulable 

suspicion that criminal activity is afoot, they may conduct a 

brief, investigatory stop. There must exist at least a minimal 

level of objective justification for the stop. The Court held that 

an individual’s presence in a “high crime area,” standing alone, 

is not enough to support reasonable suspicion. However, a 

118 Fourth Amendment
location’s characteristics are worthy of evaluation. When 

coupled with the defendant’s unprovoked flight, the officers’ 

aroused suspicion became reasonable. An individual has a 

right to ignore officers and go about his business. However, the 

Court stated that unprovoked flight is the exact opposite of 

“going about one’s business.”



United States v. Arvizu

 534 U.S. 266; 122 S. Ct. 744 (2002)

FACTS: A Border Patrol Agent received information that a 

vehicle sensor had been triggered in a remote area. The agent 

suspected that the vehicle could be attempted to evade a 

checkpoint as the timing corresponded with a shift change, 

leaving the area unpatrolled. The agent located the vehicle, a 

minivan. He obtained a visual vantage point by pulling off to 

the side of the road at an angle so he could see the oncoming 

vehicle as it passed by. The agent observed (1) the vehicle slow 

considerably as it approached his position, (2) the driver appear 

stiff and rigid, (3) the driver seemed to pretend the agent was 

not there, (3) the knees of the passengers (children) in the very 

back seat were unusually high (as if their feet were elevated by 

something on the floor). The agent followed the vehicle for a 

short distance and observed (4) the children, while facing 

forward, wave at the agent in an abnormal fashion, (5) the 

strange waving continued intermittently for four to five minutes, 

(6) the driver signaled for a turn, turned the signal off, then 

suddenly signaled and turned the vehicle, (7) the turn was the 

last that would allow the vehicle to avoid the checkpoint, (8) the 

road is rough and usually utilized by four-wheel-drive vehicles, 

(9) the vehicle did not appear to be part of the local traffic and 

(10) there were no recreation areas associated with this road. 

The agent requested vehicle registration information via the 

radio and learned that (11) the vehicle was registered to an 

address four blocks north of the border in an area known for 

alien and narcotics smuggling. At this point, the agent decided 

to conduct a traffic stop.

Fourth Amendment 119
ISSUE: Whether the agent could articulate reasonable 

suspicion to conduct a Terry stop considering all 

observed factors had innocent explanations?

HELD: Yes. Reasonable suspicion is determined by the 

“totality of the circumstances.”

DISCUSSION: The Court stated that “[W]hen discussing how 

reviewing courts should make reasonable-suspicion 

determinations, we have said repeatedly that they must look at 

the ‘totality of the circumstances’ of each case to see whether 

the detaining officer has a ‘particularized and objective basis’ for 

suspecting legal wrongdoing.” In doing so, it is imperative that 

the officer be allowed to use “their own experience and 

specialized training to make inferences” about a circumstance. 

Otherwise innocent actions, considered together, may warrant a 

further look by a law enforcement officer.



V. SEARCH WARRANTS

A. PROBABLE CAUSE

1. Required

Byars v. United States

 273 U.S. 28, 47 S. Ct. 248 (1927)

FACTS: State police officers obtained a search warrant for 

the defendant’s residence from a judge. However, the warrant 

was invalid as it clearly lacked probable cause. Nonetheless, a 

search for “intoxicating liquors and instruments and materials 

used in the manufacture of such liquors” was authorized. A 

Federal prohibition agent was asked to participate in the 

search, which he did. During the search, the Federal agent 

found some counterfeit whiskey stamps, while a State officer 

found additional counterfeit stamps. The counterfeit stamps 

were seized and the defendant was arrested.

120 Fourth Amendment
ISSUE: Whether the counterfeit stamps seized during the 

execution of the invalid State search warrant was 

admissible against the defendant in his Federal 

trial?

HELD: No. The seizure of the stamps violated the Fourth 

Amendment and was inadmissible in the 

defendant’s Federal prosecution.

DISCUSSION: The warrant lacked probable cause as 

required by the Fourth Amendment. An unconstitutional 

search is not validated by the fact that evidence of a crime is 

discovered.



Winston v. Lee

 470 U.S. 753, 105 S. Ct. 1611 (1985)

FACTS: The defendant shot a victim during an armed 

robbery, receiving a gunshot wound in the exchange. Shortly 

after the victim was taken to a hospital, officers found the 

defendant near the scene of the shooting. The officers took the 

defendant to the hospital, where the victim identified him as the 

assailant. The government asked the court to order the 

defendant to undergo surgery to remove the bullet lodged under 

his collarbone. The government asserted the bullet would 

provide evidence of the defendant’s guilt or innocence. Expert 

testimony suggested the surgery would only entail a minor 

incision and could be performed under local anesthesia. The 

court granted the motion. However, X-rays taken just before 

surgery was scheduled showed that the bullet was lodged much 

deeper than the surgeon had originally believed.

ISSUE: Whether courts can order surgery to remove 

evidence of a criminal act from a suspect’s body?

HELD: Yes. However, this is a serious intrusion into the 

suspect’s reasonable expectation of privacy and 

must be used only in extreme circumstances.

Fourth Amendment 121
DISCUSSION: The Court held that a compelled surgical 

intrusion into an individual’s body for evidence implicates 

substantial privacy and security issues. Such an intrusion may 

be unreasonable even if it is likely to produce evidence of a 

crime. The reasonableness of surgical intrusions beneath the 

skin depends on a case-by-case approach in which the court 

must weigh the individual’s interests against society’s interests 

in obtaining criminal evidence. The uncertainty about the 

medical risks, and the intrusion on the defendant’s privacy 

interests and body are severe. This must be counterbalanced 

by the government’s need to intrude into the defendant’s body 

to retrieve the bullet. As the government had available 

substantial additional evidence that the defendant was the 

criminal, its need to obtain the bullet was diminished.



2. Establishing P.C. in the Affidavit

United States v. Ventresca

 380 U.S. 102, 85 S. Ct. 741 (1965)

FACTS: An affidavit for a search warrant described seven 

different occasions between July 28 and August 30, when a car 

was driven into the backyard of the defendant’s house. On four 

occasions the car carried loads of sugar in sixty-pound bags; 

twice it made two trips loaded with empty tin cans; and once it 

was observed as being heavily laden. Garry, the car’s owner, 

and Incardone, a passenger, were seen on several occasions 

loading the car at the defendant’s house and later unloading 

apparently full five-gallon cans at Garry’s house. The affidavit 

went on to state that at about 4 a.m. on August 18, and at 

about 4 a.m. August 30, “Investigators” smelled the odor of 

fermenting mash as they walked along the sidewalk in front of 

the defendant’s house. On August 18 they heard, “at or about 

the same time, . . . certain metallic noises.” On August 30, the 

day before the warrant was applied for, they heard (as they 

smelled the mash) “sounds similar to that of a motor or a pump 

coming from the direction of the defendant’s house.” The 

affidavit concluded: “The foregoing information is based upon 

122 Fourth Amendment
personal knowledge and information which has been obtained 

from Investigators of the Alcohol, Tobacco Tax Division, Internal 

Revenue Service, who have been assigned to this investigation

(underline added).”

ISSUE: Whether failure to indicate which facts alleged were 

hearsay and which were within the affiant’s own 

knowledge destroys the affidavit’s reliability?

HELD: No. Courts must determine if probable cause (and 

an affiant’s reliability) exists through common 

sense analysis. The failure to indicate which facts 

alleged were hearsay and which were within the 

affiant’s own knowledge does not destroy the 

affidavit’s reliability.

DISCUSSION: An affidavit which shows probable cause for 

the issuance of a search warrant is not required to clearly 

indicate which of the facts alleged are hearsay and which are 

within the affiant’s own knowledge. However, probable cause 

cannot be made out by affidavits which are purely conclusory, 

stating only the affiant’s or an informer’s belief that probable 

cause exists, without detailing any of the underlying 

circumstances upon which that belief is based. This belief may 

be based on hearsay evidence. “Affidavits for search warrants...

must be tested and interpreted by magistrates and courts in a 

common sense and realistic fashion . . . A grudging or negative 

attitude by reviewing courts toward warrants will tend to 

discourage police officers from submitting their evidence to a 

judicial officer before acting. When a magistrate has found 

probable cause, the courts should not invalidate the warrant by 

interpreting the affidavit in a hypertechnical, rather than a 

common sense, manner.”



Fourth Amendment 123
Aguilar v. Texas

 378 U.S. 108, 84 S. Ct. 1509 (1964)

FACTS: Two officers applied for a warrant to search the 

defendant’s home for narcotics. Their affidavit recited that: 

“Affiants have received reliable information from a credible 

person and do believe that heroin, marijuana, barbiturates and 

other narcotics and narcotic paraphernalia are being kept at the 

above described premises for the purpose of sale and use 

contrary to the provisions of law.” The search warrant was 

issued and narcotics were found.

ISSUE: Whether the affidavit provided a sufficient basis for 

a finding of probable cause and issuance of a 

search warrant?

HELD: No. The affidavit did not provide reliable and 

credible facts on which probable cause could be 

based.

DISCUSSION: In determining the validity of a search

warrant, a reviewing court may consider only the information 

brought to a magistrate’s attention. A requesting officer must 

establish facts for a magistrate judge to consider whether 

probable cause exists or not. The Fourth Amendment does not 

deny law enforcement the support of usual inferences that 

reasonable persons may draw from evidence. It does, however, 

require such inferences be drawn by a neutral and detached 

magistrate instead of an officer engaged in the competitive 

enterprise of ferreting out crime.

An affidavit for a search warrant may be based on hearsay 

information and need not reflect direct personal observations of 

the affiant. But the magistrate must be informed of some of the 

underlying circumstances on which the informant based 

conclusions and some of the underlying circumstances from 

which an officer concluded that the informant, whose identity 

need not be disclosed, was “credible” or that his information 

was reliable. Although the reviewing court will grant 

substantial deference to judicial determinations of probable 

124 Fourth Amendment
cause, the court must still insist that the magistrate perform a 

“neutral and detached” function and not serve merely as a 

“rubber stamp.”



Spinelli v. United States

 393 U.S. 410, 89 S. Ct. 584 (1969)

FACTS: The FBI tracked the defendant, a known bookie and 

gambler, for five days. The agents saw him drive from East St. 

Louis into St. Louis and park in an apartment house lot. They 

observed him enter a particular apartment in that building. 

The apartment that the defendant entered had two telephone 

lines. A confidential informant told the agents that the two 

phone lines were being used for a gambling operation. 

However, the informant did not personally observe the 

defendant at work as a bookmaker, nor had the informant ever 

place any bets with the defendant. The informant came by his 

information indirectly, and did not explain why his sources were 

reliable. The agents obtained a search warrant.

ISSUE: Whether the agents established probable cause to 

search the defendant’s apartment?

HELD: No. The agents were not able to establish the 

reliability of their information.

DISCUSSION: An informant’s tip must be measured against 

Aguilar’s standards so that its probative value can be assessed. 

If the tip is found inadequate under Aguilar, then the other 

allegations that corroborate the information contained in the 

report should be considered. In this case, all the government 

could show was that the defendant entered an apartment that 

contained two telephone lines, had knowledge that he may be a 

bookmaker and gambler, and had an unconfirmed statement 

that the phone lines were being used for a gambling operation. 

This did not establish probable cause for the issuance of a 

search warrant.

Fourth Amendment 125
NOTE: This led to the creation of the Aguilar- Spinelli rule. 

This is a two-pronged test that courts use to determine the 

trustworthiness of information derived from anonymous sources 

in the search for probable cause.



Illinois v. Gates

 462 U.S. 213, 103 S. Ct 2317 (1983)

FACTS: Officers received an anonymous letter that included 

statements that the defendants, a husband and wife, were 

selling drugs. The letter indicated Mrs. Gates would drive the 

Gates’ car to Florida on May 3rd to be loaded with drugs, and 

Mr. Gates would fly down a few days later to drive the car back; 

that the car’s trunk would be loaded with drugs; and that 

defendants presently had over $100,000 worth of drugs in their 

basement. An officer located the Gates’ address and learned 

that Mr. Gates made a reservation for a May 5th flight to 

Florida. Arrangements for surveillance of the flight where made 

with a DEA agent. The surveillance disclosed that Mr. Gates 

took the flight, stayed overnight in a motel room registered in 

Mrs. Gates name, and left the following morning with a woman 

in a car bearing an Illinois license plate issued to Mr. Gates, 

heading north on an interstate highway. A search warrant for 

defendants’ residence and automobile was then obtained based 

the anonymous letter and the government’s corroboration.

ISSUE: Whether the officers’ affidavit and the anonymous 

letter establish sufficient facts to satisfy the 

Aguilar-Spinelli probable cause test?

HELD: No. However, the Supreme Court created a totalityof-the-circumstances test.

DISCUSSION: The facts failed to meet the Aguilar-Spinelli 

“two-pronged test” of (1) revealing the informant’s “basis of 

knowledge” and (2) providing sufficient facts to establish either 

the informant’s “veracity” or the “reliability” of the informant’s 

report. However, the Court held that the overly rigid Aguilar126 Fourth Amendment
Spinelli test should be set aside when a common-sense test is 

more useful in determining whether “probable cause” exists. 

The task of the issuing magistrate is simply to make a practical, 

common-sense decision whether, given all the circumstances 

set forth in the affidavit, there is a fair probability that 

contraband or evidence of a crime will be found in a particular 

place. The duty of a reviewing court is to ensure that the 

magistrate has a substantial basis for concluding that probable 

cause existed. Therefore, the Court created the “totality of the 

circumstances” test to replace (or supplement) the AguilarSpinelli test. In this case, the totality of the circumstances 

indicated that the information was truthful and created 

probable cause for the issuance of a search warrant.



United States v. Harris

 403 U.S. 573, 91 S. Ct. 2075 (1971)

FACTS: A federal tax investigator and a local police officer

entered the premises of the defendant, pursuant to a search 

warrant, and seized jugs of whiskey upon which the federal tax 

had not been paid. The search warrant was issued solely on 

the basis of the investigator’s affidavit, which recited the 

following:

Roosevelt Harris has had a reputation with me for over 4 years 

as being a trafficker of nontaxpaid distilled spirits, and over this 

period I have received numerous information [sic] from all types 

of persons as to his activities. Constable Howard Johnson 

located a sizeable stash of illicit whiskey in an abandoned 

house under Harris’ control during this period of time. This 

date, I have received information from a person who fears for 

their [sic] life and property should their name be revealed. I 

have interviewed this person, found this person to be a prudent 

person, and have, under a sworn verbal statement, gained the 

following information: This person has personal knowledge of 

and has purchased illicit whiskey from within the residence 

described, for a period of more than 2 years, and most recently 

within the past two weeks, has knowledge of a person who 

Fourth Amendment 127
purchased illicit whiskey within the past 2 days from the house, 

has personal knowledge that the illicit whiskey is consumed by 

purchasers in the outbuilding known as and utilized the ‘dance 

hall’ and has seen Roosevelt Harris go to the other outbuilding, 

located about 50 yards from the residence, on numerous 

occasions, to obtain the whiskey for this person and other 

persons.

ISSUE: Whether information from a partner-in-crime can 

be credible, even though the identity of the 

informant is confidential?

HELD: Yes. Partners-in-crime are presumed credible.

DISCUSSION: The affidavit purports to relate the personal 

observations of the informant and recites prior events within 

the affiant’s own knowledge indicating that the accused had 

previously trafficked in contraband. A law enforcement officer’s 

knowledge of a suspect’s reputation is a practical consideration 

of everyday life upon which an officer or a magistrate may 

properly rely in assessing the reliability of an informant’s tip.

For purposes of determining whether an affidavit is sufficient to 

establish probable cause for a search warrant, the informant’s 

declaration against interest is reason to believe the information. 

The affidavit recited that the informant feared for his life and 

safety if his identity was revealed and that over the past two 

years he had often and recently purchased contraband from the 

accused. These statements are against the informant’s penal 

interest, for they constitute an admission of major elements of 

an offense. Admissions of crime, like admissions against 

proprietary interests, carry their own indicia of credibility.



United States v. Grubbs

 547 U.S. 90, 126 S. Ct. 1494 (2006)

FACTS: The defendant purchased contraband from a web 

site operated by an undercover officer. The government sought 

128 Fourth Amendment
an anticipatory search warrant. The contingency of the search 

was based on probable cause that would exist if “the parcel has 

been received by a person(s) and has been physically taken into 

the residence.” The magistrate accepted the affidavit and 

issued a search warrant. The search occurred two days later 

after the defendant’s wife signed for the parcel and took it into 

the premises.

ISSUE: Whether a warrant can be issued based on 

probable cause that is not yet in existence (but is 

anticipated)?

HELD: Yes. The Fourth Amendment’s requirement that 

“no Warrants shall issue, but upon probable cause” 

demands probable cause to exist at the time of the 

search, not the issuance.

DISCUSSION: The Supreme Court held that probable cause 

to sustain a search warrant need only be present at the time the 

search is conducted. In this light, all search warrants are 

“anticipatory” in that the government has established probable 

cause that the offending items will be present at the time of the 

search. The Court stated that “[A]nticipatory warrants are, 

therefore, no different in principle from ordinary warrants. 

They require the magistrate to determine (1) that it is now 

probable that (2) contraband, evidence of a crime, or a fugitive 

will be on the described premises (3) when the warrant is 

executed.” Anticipatory warrants additionally require a 

condition to exist before the search warrant can be executed.



3. Neutral and Detached Magistrate

Connelly v. Georgia

 429 U.S. 245, 97 S. Ct. 546 (1977)

FACTS: Under Georgia law, Justices of the Peace were 

authorized to issue search warrants, obtaining fees for this 

service. A Georgia Justice of the Peace issued the search 

Fourth Amendment 129
warrant used to search the defendant’s house. The defendant 

was convicted for possession of marihuana. The defendant 

questioned the constitutional fairness of a system authorizing

the issuance of search warrants by interested financial parties.

ISSUE: Whether the pecuniary interests of an issuing 

magistrate violate the defendant’s protection 

afforded him by the Fourth and Fourteenth 

Amendments?

HELD: Yes. Issuing magistrates must be neutral and 

detached.

DISCUSSION: The justice who issued the warrant was not a 

“neutral and detached magistrate” because he had a financial

interest in issuing the warrant. Georgia Justices of the Peace at 

that time were not salaried. Their compensation was solely 

based upon how many warrants they issue within a year. This

pecuniary interest in issuing search warrants destroyed their 

neutrality.



Lo-Ji Sales, Inc. v. New York

 442 U.S. 319, 99 S. Ct. 2319 (1979)

FACTS: An officer purchased two reels of film from the 

defendant’s “adult” bookstore, and upon viewing them, he 

concluded they violated local obscenity law. The officer took the 

film to a town justice who viewed both films in their entirety. 

The justice concluded the films were obscene.

The officer applied for a search warrant and requested that the 

town justice accompany him to the defendant’s store for its 

execution. This would allow the town justice to independently 

see if any other items at the store were possessed in violation of 

the law. At the time the town justice signed the warrant, the 

only “things to be seized” that were described in the warrant 

were copies of the two films the officer had purchased.

130 Fourth Amendment
The town justice assisted in the execution of the search 

warrant. He viewed movies and determined which were subject 

to seizure. He had magazines removed from clear plastic or 

cellophane wrappings, reviewed them, and determined them to 

be subject to seizure.

ISSUE: Whether the magistrate was neutral and detached? 

HELD: No. The magistrate’s participation in the search 

destroyed his ability to be neutral and detached.

DISCUSSION: By allowing himself to participate in the 

search, the town justice did not manifest the neutrality and 

detachment demanded of a judicial officer when presented with 

an application for a search warrant. The fact that the store 

invited the public to enter did not constitute consent to a 

wholesale search and seizure. The town justice viewed the films 

and magazines in a manner inconsistent with that of a 

customer. He did not see these items as a customer would 

ordinarily see them. Therefore, his involvement in the search 

led to the loss of his independent stature required of a judicial 

officer.



4. With Particularity

Andresen v. Maryland

 427 U.S. 463, 96 S. Ct. 2737 (1976)

FACTS: A fraud unit began an investigation of suspicious 

real estate settlement activities. The defendant was an attorney 

specializing in real estate settlements. During the fraud unit’s 

investigation, his activities came under scrutiny, particularly in 

connection with a transaction involving Lot 13T in a 

subdivision. An extensive investigation disclosed that the 

defendant, acting as the settlement attorney, had defrauded the 

purchaser of Lot 13T. 

The fraud investigators concluded that there was probable 

Fourth Amendment 131
cause to believe that the defendant had committed the state 

crime of false pretenses. They applied for warrants to search 

the defendant’s office and the separate office of Mount Vernon 

Development Corporation, of which the defendant was 

incorporator, sole shareholder, resident agent and director. The 

application sought permission to search for specified 

documents pertaining to the sale and conveyance of Lot 13T. 

The warrant was issued.

ISSUE: Whether the warrant was specific enough to meet 

the “particularity” clause of the Fourth 

Amendment?

HELD: Yes. The warrant was specific enough to meet the 

“particularity” clause of the Fourth Amendment.

DISCUSSION: All items in a set of “files” may be examined 

during a search, provided that a description for identifying the 

evidence sought is listed in the search warrant - - and followed 

by the investigators. “We recognize that there are grave dangers 

inherent in executing a warrant authorizing a search and 

seizure of a person’s papers that are not necessarily present in 

executing a warrant to search for physical objects whose 

relevance is more easily ascertainable.” In searches for papers, 

it is likely that some innocuous documents will be examined, in 

order to determine whether they are among those papers 

authorized to be seized. Similar dangers are present in 

executing a warrant for the “seizure” of telephone conversations. 

In both kinds of searches, responsible officials, including 

judicial officials, must take care to assure that the search is 

conducted in a manner that minimizes unwarranted intrusions 

upon privacy.



Stanford v. Texas

 379 U.S. 476, 85 S. Ct. 506 (1965)

FACTS: The magistrate authorized officers to search the 

defendant’s premises as “a place where books, records, 

132 Fourth Amendment
pamphlets, cards, receipts, lists, memoranda, pictures, 

recordings and other written instruments concerning the 

Communist Party of Texas, and the operations of the 

Communist Party in Texas are unlawfully possessed . . . and to 

take possession of same.” Several law enforcement officers 

went to the defendant’s home for the purpose of serving this 

warrant. By the time they finished five hours later, they had 

seized all books including biographies of Pope John XXIII and 

Justice Black.

ISSUE: Whether the search and seizure amounted to an 

unconstitutional general search?

HELD: Yes. The warrant did not meet the particularity 

requirements of the Fourth Amendment.

DISCUSSION: The Fourth Amendment prohibits general 

warrants that give the government permission to search 

wherever it wants and to seize whatever it pleases. The 

indiscriminate sweep of a search warrant’s language renders it

invalid under the Fourth Amendment where the warrant 

authorizes the seizure of “books, records, pamphlets, cards, 

receipts, lists, memoranda, pictures, recordings and other 

written instruments concerning the Communist Party of Texas, 

and the operation of the Communist Party in Texas.” The 

warrant lacked particularity.



Groh v. Ramirez

 540 U.S. 551, 124 S. Ct. 1284 (2004)

FACTS: ATF agents constructed a search warrant 

application to seek “any automatic firearms or parts to 

automatic weapons, destructive devices to include but not 

limited to grenades, grenade launchers, rocket launchers, and 

any and all receipts pertaining to the purchase or manufacture 

of automatic weapons or explosive devices or launchers.” The 

warrant itself, however, was less specific. In the section of the 

warrant that called for a description of the “person or property” 

Fourth Amendment 133
to be seized, the agents provided a description of the home to be 

searched rather than the weapons listed in the application, in 

an apparent transfer of information error. The magistrate 

signed the warrant and the following day the agents executed 

the warrant.

ISSUE: Whether a search warrant that does not 

particularly describe the things to be seized meets 

the Fourth Amendment’s standards?

HELD: No. The purpose of the Fourth Amendment’s 

particularity clause is to inform the person whose 

property is being seized of the bounds of the 

search.

DISCUSSION: The Court held that “[T]he warrant was 

plainly invalid.” As stated in the Fourth Amendment “no 

Warrants shall issue, but upon probable cause, supported by 

Oath or affirmation, and particularly describing the place to be 

searched, and the persons or things to be seized (underline 

added).” While the oversight in the warrant might appear to be 

superficial, and the items to be seized are clearly described in 

the application, the search warrant serves an important 

function for the person whose privacy is being intruded upon. 

It provides notice. The Court stated that the Fourth 

Amendment does not prohibit warrants from cross referencing 

other documents if the warrant “uses appropriate words of 

incorporation, and if the supporting document accompanies the 

warrant.” Here, the warrant did not incorporate by reference 

any other document. The Court held that the purpose of the 

Fourth Amendment’s particularity requirement is to (1) limit 

general searches and (2) assure the person whose property is 

being seized that the officer has authority to conduct a search, 

the need to search, and the bounds of that search.



134 Fourth Amendment
Messerschmidt v. Millender

 132 S. Ct. 1235 (2012)

FACTS: During a domestic dispute, the defendant became 

violent over the victim’s contact with the police. He discharged 

a black, pistol-gripped sawed off shot-gun at the victim as she 

fled in an automobile. The victim reported the incident to the 

police, described the shotgun, and explained the defendant was 

an active member of a local gang. The investigating officer 

confirmed the defendant’s gang affiliation and that he had been 

arrested 31 times, 9 times for firearms offenses and 6 times for 

violent crimes. The officer drafted a search warrant affidavit for:

“[A]ll handguns, rifles, or shotguns of any caliber, 

or any firearms capable of firing ammunition, or 

firearms or devices modified or designed to allow it 

[sic] to fire ammunition” and 

“[A]rticles of evidence showing street gang 

membership or affiliation with any Street Gang to 

include but not limited to any reference to ‘Mona 

Park Crips’...”

The officer had his supervisor and a prosecuting attorney review 

his affidavit, and a judge signed his request for the search 

warrant. The officer executed the warrant and was 

subsequently sued for enforcing an overly broad search 

warrant.

ISSUE: Whether the officer had qualified immunity in 

executing a search warrant for “all guns” when he 

knew specifically what kind of gun was used in the 

crime?

HELD: Yes. The officer was entitled to reasonably rely on 

the issuing judge’s finding of probable cause.

DISCUSSION: The Court found that “[W]here the alleged 

Fourth Amendment violation involves a search or seizure 

pursuant to a warrant, the fact that a neutral magistrate has 

Fourth Amendment 135
issued a warrant is the clearest indication that the officers 

acted in an objectively reasonable manner or, as we have 

sometimes put it, in ‘objective good faith.’”

Under the circumstances of this case “it would not have been 

unreasonable for an officer to conclude that there was a ‘fair 

probability’ that the sawed-off shotgun was not the only firearm 

[the defendant] owned” or that the “sawed-off shotgun was 

illegal.” The Court noted that “[E]vidence of one crime is not 

always evidence of several, but given [the defendant’s] 

possession of one illegal gun, his gang membership, his 

willingness to use the gun to kill someone, and his concern 

about the police, a reasonable officer could conclude that there 

would be additional illegal guns among others that [the 

defendant] owned.” The Court expressed similar reasoning for 

finding the inclusion of the gang-related material in the search 

warrant as reasonable. Therefore, the officer was entitled to 

rely on the issuing judge’s finding of probable cause.



Maryland v. Garrison

 480 U.S. 79, 107 S. Ct. 1013 (1987)

FACTS: Officers obtained and executed a warrant to search 

the person of Lawrence McWebb and “the premises known as 

2036 Park Avenue third floor apartment.” After an exterior 

examination and an inquiry of a utility company, the officer who 

obtained the warrant reasonably concluded that there was only 

one apartment on the third floor and that it was occupied by 

McWebb. When officers executed the warrant, they fortuitously 

encountered McWebb in front of the building and used his key 

to gain admittance to the first floor hallway and to the locked 

door at the top of the stairs to the third floor. As they entered 

the vestibule on the third floor, they encountered the defendant, 

who was standing in the hallway area. The police could see into 

the interior of both McWebb’s apartment to the left and the 

defendant’s to the right. Only after the defendant’s apartment 

had been entered and heroin, cash and drug paraphernalia had 

been found, did any of the officers realize that the third floor 

136 Fourth Amendment
contained two apartments. As soon as they became aware of 

that fact, they discontinued their search. All of the officers 

believed that they were searching McWebb’s apartment.

ISSUE: Whether the search warrant was unreasonably 

vague and ambiguous, requiring suppression of the 

evidence?

HELD: No. The officers’ execution of this warrant was 

reasonable under the circumstances.

DISCUSSION: The Court held the officers acted reasonably 

when: (1) the warrant authorized a search of “the premises 

known as 2036 Park Avenue third floor apartment,” (2) the 

objective facts available to the officers at the time of the search 

suggested no distinction between the named person’s 

apartment and the entire third floor premises, (3) the officers 

discovered that the third floor was in fact divided into two 

separate apartments--only after they entered and found 

contraband in the apartment of the tenant not named in the 

warrant, and (4) they discontinued the search as soon as they 

made this discovery. Under these circumstances, the officers’ 

failure to realize the ambiguity of the warrant is objectively 

reasonable, and their execution of the warrant was proper 

whether the warrant is interpreted as authorizing a search of 

the entire third floor or a search limited to the named person’s 

apartment. The constitutionality of the officers’ conduct must 

be judged in the light of the information available to them at the 

time they request the warrant.



Steele v. United States

 267 U.S. 498, 45 S. Ct. 414 (1925)

FACTS: An affidavit for a search warrant authorized by the 

issuing judge consisted of the following description:

The building to be searched was a four-story building in New 

York City on the south side of West 46th Street, with a sign on 

Fourth Amendment 137
it Indian Head Auto Truck Service--Indian Head Storage 

Warehouse, No. 609 and 611. It was all under lease to Steele. 

The building could be entered by three entrances from the 

street, one on the 609 side on the 611 side, and in the middle of 

the building is an automobile entrance from the street into a 

garage. There is no partition between 611 and 609 on the 

ground or garage floor, and there were only partitions above and 

none which prevented access to the elevator on any floor from 

either the 609 or 611 side.

ISSUE: Whether a search warrant based on this application 

was unconstitutional in that the affidavit and the 

warrant did not particularly describe the place to be 

searched?

HELD: No. The search was constitutional as the affidavit 

adequately described the place to be searched.

DISCUSSION: The Court held that the description of the 

building indicated the officers intended to search the whole 

building. The evidence left no doubt that although the building 

had two numbers, the garage business covering the first floor, 

and the storage business above were so related to the elevator 

that there was no real division of the building. The Court 

considered the fact that the search did not “go too far.” The 

places searched were all rooms connected with the garage by 

the elevator.



B. SERVING THE WARRANT

1. Knock and Announce (18 U.S.C. § 3109)

Sabbath v. United States

 391 U.S. 585, 88 S. Ct. 1755 (1968)

FACTS: A narcotics carrier was intercepted at the border 

and agreed to make a controlled delivery to the home of the 

defendant. The carrier entered the defendant’s apartment and 

138 Fourth Amendment
gave the agents the pre-set signal. Without a warrant, agents 

knocked on the door, received no response, and opened the 

door. They entered, arrested the defendant and found 

narcotics.

ISSUE: Whether federal agents are required to conform 

with 18 U.S.C. § 3109 when making a warrantless 

entry to make an arrest?

HELD: Yes. Agents are required to announce their 

purpose and identity when making a warrantless 

entry to make an arrest.

DISCUSSION: The government had no basis for assuming 

the defendant was armed or might resist arrest, or that the 

cooperating carrier was in any danger. The officers made no 

independent investigation of the defendant prior to setting the 

stage for his arrest with narcotics in his possession. Therefore, 

the officers had to comply with § 3109 (requiring the 

announcement of presence and notice of authority or purpose 

before the agents may break down any door). The Court 

identified the opening of a closed but unlocked door, lifting a 

latch, turning a door knob, unhooking a chain, pushing open a 

hasp, or pushing open a closed door of entrance to a house, 

even a closed screen door, as a “breaking” with respect to § 

3109.



Wilson v. Arkansas

 514 U.S. 927, 115 S. Ct. 1914 (1995)

FACTS: Officers, in executing a search warrant, entered the 

defendant’s premises through an unlocked screen door without 

first knocking or announcing their presence. They found 

contraband inside the premises.

ISSUE: Whether the reasonableness in which officers enter 

a dwelling pursuant to a search warrant is subject 

to review by a court?

Fourth Amendment 139
HELD: Yes. Failure to enter a dwelling in a reasonable 

manner, even with a search warrant, can result in 

liability.

DISCUSSION: The Supreme Court held that the common 

law knock and announce principle forms a part of the Fourth 

Amendment reasonableness test. An officer’s unannounced 

entry into a home can be, in some circumstances, unreasonable 

under the Fourth Amendment. In evaluating the scope of the 

reasonableness requirement, the Court considers the traditional 

protections against unreasonable searches and seizures 

afforded by the common law at the time of the framing. Given 

the longstanding common law endorsement of the practice of 

announcement, and the great number of commentaries, 

constitutional provisions, statutes, and cases supporting the 

knock and announce principle, the Court held that whether 

officers announced their presence and authority before entering 

a dwelling should be among the factors to be considered in 

assessing a search’s reasonableness.

NOTE: The burden that may result from an entry in 

violation of 18 U.S.C. § 3109 is limited to a civil liability claim 

and not the loss of evidence through the exclusionary rule. See

Hudson v. Michigan.



Hudson v. Michigan

 547 U.S. 1096, 126 S. Ct. 2159 (2006)

FACTS: Officers obtained a search warrant for the 

defendant’s home to look for controlled substances. Before 

entering, the officers announced their presence, but waited only 

three to five seconds before using force to enter.

ISSUE: Whether a violation of the “knock-and-announce” 

rule (18 U.S.C. § 3109) requires the suppression of 

all evidence found in the search.

140 Fourth Amendment
HELD: No. The Court found the exclusionary rule 

inapplicable in these kinds of violations.

DISCUSSION: The Court commented that “[S]uppression of 

evidence, however, has always been our last resort, not our first 

impulse.” It should only be applied when other options are 

ineffective. The Court also stated that “[T]he interests protected 

by the knock-and-announce requirement are quite different—

and do not include the shielding of potential evidence from the 

government’s eyes.” As the statute does not protect one’s 

reasonable expectation of privacy the Court concluded that the 

exclusionary rule is inapplicable in cases where this law is 

violated.

The government obtains little advantage in its endeavors to 

ferret out criminal activity by ignoring the knock-and-announce 

requirement. The possible prevention of the destruction of 

evidence or the avoidance of violence by occupants of the 

premises are the likely result, but no new evidence. Therefore, 

the Court found that “civil liability is an effective deterrent” to 

address violations of the knock-and-announce rule.



Richards v. Wisconsin

 520 U.S. 385, 117 S. Ct. 1416 (1997)

FACTS: Officers executed a drug search warrant at the 

defendant’s motel room. To gain entry, one officer hoped to fool 

the defendant by wearing a maintenance uniform. He knocked 

on the defendant’s hotel room door, which the defendant 

opened. When the defendant saw a uniformed officer in the 

hallway, he slammed the door shut. The officers immediately 

kicked the door open and apprehended the defendant, who was 

attempting to climb out the window. They found contraband in 

the room.

ISSUE: Whether the officers’ entry was in compliance with 

18 U.S.C. § 3109?

Fourth Amendment 141
HELD: Yes. Officers are not required to announce their 

status and intentions with every warrant execution.

DISCUSSION: The Court held that officers do not have to 

comply with 18 U.S.C. § 3109 requirements when they develop 

reason to suspect that doing so would be: (1) dangerous, (2) 

futile, or (3) allow for the destruction of evidence. The Supreme 

Court rejected the argument that all felony drug cases are 

inherently dangerous. However, in this case the Court found 

that the officers’ behavior was reasonable.



United States v. Ramirez

 523 U.S. 65, 118 S. Ct. 992 (1998)

FACTS: Shelby was a dangerous, escaped convict. An ATF 

agent learned from a reliable confidential informant that Shelby 

was probably staying at the defendant’s home, also a convicted 

felon. Based on this information, Deputy U.S. Marshals 

obtained a search warrant and permission to enter the premises 

without complying with 18 U.S.C. § 3109 from a magistrate. 

The informant also stated that the defendant might have a 

stash of weapons in his garage. Early in the morning, the 

Deputy Marshals used a loud speaker to announce that they 

had a search warrant. At the same moment one Deputy 

Marshal broke a window in the garage. He pointed a gun at the 

opening to discourage a rush for the weapons feared to be 

inside. The defendant believed people were burglarizing his 

home and fired a shot into the ceiling of his garage. Moments 

later, he realized that the persons attempting to enter his home 

were law enforcement officers and he submitted to their 

authority. Shelby was not found. However, the officers found 

weapons in the premises. The defendant was charged with 

possession of firearms by a felon.

ISSUE: Whether law enforcement officers are held to a 

heightened standard of scrutiny when they destroy 

property pursuant to a “no-knock” entry?

142 Fourth Amendment
HELD: No. Law enforcement officers’ entries during the 

execution of warrants must only be “reasonable.”

DISCUSSION: All searches must be reasonable under the 

Fourth Amendment. The manner in which the officers entered 

the premises to conduct the search is subject to review by a 

court in determining the reasonableness of that search. The 

Court held that while there is no absolute prohibition against 

the destruction of property upon entry, it is a factor that should 

be considered in determining the reasonableness of the search. 

In the case here, the Court held that the destruction of a single 

window to provide a deterrent against dangerous individuals 

that may arm themselves with suspected weapons was 

reasonable. Therefore, the search met the standards of the 

Fourth Amendment.



United States v. Banks

 540 U.S. 31, 124 S. Ct. 521 (2003)

FACTS: Law enforcement officers went to the defendant’s 

home around 2 P.M. with a search warrant for a controlled 

substance. It was unclear whether anyone was at home at the 

time. The officers called out “police, search warrant” and 

knocked on the front door loudly enough to be heard by officers 

at the back door. The officers waited fifteen to twenty seconds 

and did not obtain a response. They then broke open the front 

door and entered the home. The defendant was in the shower 

and later testified that he heard nothing until the breaking of 

the door.

ISSUE: Whether the officers waited a reasonable amount of 

time before forcing entry into the home?

HELD: Yes. Reasonableness in the use of force in gaining 

entry is determined by the “totality of the 

circumstances.”

DISCUSSION: The Supreme Court has held that how law 

Fourth Amendment 143
enforcement officers go about their search must meet the 

Fourth Amendment’s reasonableness standard. See Wilson v. 

Arkansas. The length of time an officer must wait before using 

force to enter a home with a warrant is determined by the 

“totality of the circumstances.” The Court stated that it has 

“consistently eschewed bright-line rules, instead emphasizing 

the fact-specific nature of the reasonableness inquiry.” There is 

“no formula for determining reasonableness.”

The Court determined that, under the facts of this case, the 

officers’ actions of waiting fifteen to twenty seconds before using 

force was reasonable. The fact that the defendant was in the 

shower was unknown to the officers and, therefore, immaterial. 

It is the actions of the officers, based on their knowledge and 

inferences at the time that the Court examines for 

reasonableness. The Court noted that in this case the crucial 

timeframe is not the time it would have taken the defendant to 

open the door but rather the time it would have taken him to 

destroy the evidence. After fifteen to twenty seconds, an 

exigency existed and the officers were justified in using force to 

gain entry.

NOTE: This opinion does not state law enforcement officers 

must wait fifteen to twenty seconds before using force with a 

warrant. The Court’s opinion here is that, under these factors, 

fifteen to twenty seconds was enough time to wait before using 

force. A shorter amount of time could have been acceptable to 

the Court. In other circumstances, a longer period may be 

required.



2. Persons at the Premises

Michigan v. Summers

 452 U.S. 692, 101 S. Ct. 2587 (1981)

FACTS: As officers were about to execute a warrant to 

search a house for narcotics, they encountered the defendant

descending the front steps. They detained him while they 

144 Fourth Amendment
searched the premises. The defendant was not free to leave the 

premises while the officers were searching his home. After 

finding narcotics in the basement and confirming the defendant 

owned the house, the officers arrested him, searched his 

person, and found a controlled substance in his coat pocket. 

ISSUE: Whether law enforcement officers may seize the 

resident of a house during an execution of a search 

warrant?

HELD: Yes. It was reasonable for the officers to detain the 

residents of a home while executing a search 

warrant.

DISCUSSION: The Court stated three reasons supporting 

the defendant’s detention:

1) The law enforcement interest in preventing flight in 

the event that incriminating evidence is found.

2) The interest in minimizing the risk of harm to the 

officers and occupants. The execution of a search 

warrant for narcotics is the kind of transaction that 

may give rise to sudden violence or frantic efforts to 

conceal or destroy evidence.

3) The orderly completion of the search may be 

facilitated if the residents are present, i.e. to open 

locked doors or locked containers to avoid the use 

of force that not only is damaging to property but 

may also delay the completion of the task at hand.

Some seizures constitute such a limited intrusion of those 

detained and are justified by a substantial law enforcement 

interest that they may be supported on less than probable 

cause. The Court found this to be one of those occasions. The 

seizure here was reasonable under the Fourth Amendment.

NOTE: The Supreme Court held the government’s 

substantial interest was enhanced in this situation because the 

Fourth Amendment 145
officers had a search warrant for a controlled substance. Some 

circuit courts (1st Circuit, 3rd Circuit, 4th Circuit and 11th 

Circuit) have extended the Summers doctrine to situations 

other than those that included controlled substances.



Muehler v. Mena

 544 U.S. 93, 125 S. Ct. 1465 (2005)

FACTS: Officers had reasonable grounds to believe that at 

least one member of a gang resided at the defendant’s 

residence. The gang member was suspected of being armed and 

dangerous, and a participant in a recent violent crime. The 

officers obtained a warrant to search the premises for weapons 

and other evidence. Upon entry to serve the search warrant, 

the officers located the defendant (not a suspect) and placed her 

in handcuffs at gunpoint. Three other individuals found at the 

premises were also handcuffed. 

ISSUE: Whether the defendant was detained for an 

unreasonable amount of time, in an unreasonable 

manner?

HELD: No. The Summers doctrine permits officers to 

detain occupants of a searched premises where the 

search involves an element of danger. The use of 

handcuffs can be a reasonable means of 

accomplishing this detention.

DISCUSSION: In Michigan v. Summers, the Supreme Court 

authorized the detention of “occupants of the premises while a 

proper search is conducted” where the search was for a 

controlled substance. The detention of the defendant here was 

permissible under the standards set out in Summers. The 

Court also held the Summers’ “authorization to detain an 

occupant of the place to be searched carries with it the 

authority to use reasonable force to effectuate the detention.” 

In this case, the officers’ use of handcuffs and placing the 

defendant in the garage of the premises was reasonable because 

146 Fourth Amendment
the governmental interest outweighed the marginal intrusion 

upon the defendant. A search warrant for weapons involves 

inherently dangerous situations, but also the need to control 

“multiple occupants made the use of handcuffs all the more 

reasonable.” The fact that the defendant was not a suspect in 

the investigation was not significant to the Court.



Bailey v. United States

 568 U.S. ___, 133 S. Ct. 1031 (2013)

FACTS: Officers obtained a search warrant for a basement 

apartment residence. As the search team prepared to execute 

the warrant, two officers, were conducting surveillance in an 

unmarked car outside the residence. The officers observed two 

men, including the defendant, depart the gated area above the 

basement apartment and get into car parked in the driveway. It 

did not appear to the officers that the defendant and his 

companion were aware of the impending intrusion or their 

presence. The officers observed the car leave the driveway and 

followed it for approximately one mile before pulling it over. The 

officers got the men out of the stopped vehicle, placed both in 

handcuffs and had them taken back to the apartment. The 

search team found contraband in the apartment and the 

defendant was placed under arrest. His keys were seized and 

found to be capable of opening the door to the apartment.

ISSUE: Whether the Summers doctrine permitted the 

defendant to be seized more than one mile away 

from the location of the search?

HELD: No. The Summers doctrine rests on three 

important law enforcement interests, none of which 

were prompted in this case.

DISCUSSION: The Supreme Court noted the Summers 

Doctrine permits law enforcement officers to seize persons at 

the scene of a search warrant for the execution of that warrant. 

The Summers Court created this authority for three reasons: (1) 

Fourth Amendment 147
officer safety, (2) facilitating the completion of the search, and 

(3) preventing flight. There was no evidence that any of these 

interests were placed in jeopardy by the defendant’s actions in 

this case in that his absence from the premises did not interfere 

with the execution of the warrant. Summers provided guidance 

regarding how the government was to handle occupants found 

at the scene of a search warrant rather that create an 

opportunity to introduce otherwise occupied persons to the 

search warrant process. The Summers Court noted the 

detention of a current occupant “represents only an incremental 

intrusion on personal liberty when the search of a home has 

been authorized by a valid warrant” as compared to the 

defendant’s seizure here, which was beyond the bounds 

anticipated by the Court.



Los Angeles County v. Rettele

 550 U.S. 609, 127 S. Ct. 1989 (2007)

FACTS: The government conducted a four-month 

investigation of four African-Americans, suspected of 

committing fraud and identity theft. One of the suspects was 

known to be armed. The officers obtained search warrants for

two homes where the suspects were believed to be living. 

Unknown to the officers, three months earlier, one of the homes 

had been sold to Mr. Rettele, who occupied the premises with 

his girlfriend and her son. They were all Caucasian. The 

officers executed the search warrant and, with guns drawn, 

encountered the three new occupants of the home. Mr. Rettele 

and his girlfriend were unclothed and not permitted to cover 

themselves for the first two minutes of the encounter. Within 

five minutes, the officers realized their mistake, apologized for 

the error and departed the premises. Mr. Rettele brought a 

lawsuit for the deprivation of his Fourth Amendment 

protections.

ISSUE: Whether the officers were reasonable in how they 

conducted the search of the home?

148 Fourth Amendment
HELD: Yes. Officers are entitled to take reasonable 

precautions against acts of violence during the 

execution of search warrants.

DISCUSSION: The Court found the search reasonable 

because the officers had knowledge that one of the suspects 

was armed. Also, the officers had no way of knowing that, 

despite the fact that they discovered three persons not 

suspected of any crime, that dangerous persons were not within 

the premises as well. The Court has long held that “in 

executing a search warrant officers may take reasonable action 

to secure the premises and to ensure their own safety and the 

efficacy of the search.” The fact that the officers were in error in 

conducting the search did not make that search unreasonable. 

The Court noted “valid warrants will issue to search the 

innocent, and people like Rettele and Sadler unfortunately bear 

the cost. Officers executing search warrants on occasion enter 

a house when residents are engaged in private activity; and the 

resulting frustration, embarrassment, and humiliation may be 

real, as was true here. When officers execute a valid warrant 

and act in a reasonable manner to protect themselves from 

harm, however, the Fourth Amendment is not violated.”



Ybarra v. Illinois

 444 U.S. 85, 100 S. Ct. 338 (1979)

FACTS: A search warrant was issued for the Aurora Tap 

Tavern and the person of Greg, the bartender. Upon entering 

the tavern, the officers announced their purpose and advised all 

those present that they were going to conduct a “cursory search 

for weapons.” One of the officers patted down each of the nine 

to thirteen customers present in the tavern, while the remaining 

officers engaged in an extensive search of the premises.

The officer who frisked the patrons felt what he described as “a 

cigarette pack with objects in it” on the defendant. He did not 

remove this pack from the defendant’s pocket. Instead, he 

moved on and proceeded to frisk other customers.

Fourth Amendment 149
After completing this process the officer returned to the 

defendant and frisked him once again. The officer relocated and 

retrieved the cigarette pack from the defendant’s pants pocket. 

Inside he found six tin foil packets containing a brown powdery 

substance that was later determined to be heroin.

ISSUE: Whether the frisk of the defendant was justified 

based on the fact that he was at the scene of a 

search warrant?

HELD: No. Frisks are only authorized if the officer has 

reason to suspect that the person being frisked is

armed and dangerous.

DISCUSSION: Search warrants do not authorize frisks of 

persons who, at the commencement of the search, are on the 

premises subject to a search warrant. A person’s proximity to 

others independently suspected of criminal activity does not, 

without more, justify a frisk.

The officer’s justification for the search of the defendant rested 

on a state statute permitting an officer, in the execution of a 

search warrant, to reasonably detain and search any person on 

the premises to either protect himself from attack, or to prevent 

the disposal or concealment of anything particularly described 

in the warrant. This statute offends the Fourth Amendment 

where:

1) No probable cause existed at the time the search 

warrant was issued for the authorities to believe 

that any person found in the tavern other than the 

employee would be violating the law;

2) There was no probable cause to search the 

defendant at the time the warrant was executed;

3) The customers in the tavern maintained their own 

protection against an unreasonable search or 

seizure which was separate and distinct from that 

possessed by the proprietor of the tavern or by the

150 Fourth Amendment
employee, and;

4) The initial frisk of the customer was not supported 

by a reasonable suspicion that he was armed and 

dangerous.



Illinois v. McArthur

 531 U.S. 326, 121 S. Ct. 946 (2001)

FACTS: Officers developed probable cause the defendant 

had marijuana in his home. While some of the officers sought a 

search warrant with this information, others prevented the 

defendant from entering his home unless accompanied by a law 

enforcement officer. This prohibition lasted for approximately 

two hours. Once a warrant was secured, the officers entered 

the home and found drug paraphernalia and marijuana.

ISSUE: Whether the officers’ denial of the defendant access 

to his home without the accompaniment of an 

officer was an unreasonable seizure of the dwelling?

HELD: No. The brief seizure, given the circumstances, was 

reasonable under the Fourth Amendment.

DISCUSSION: The Court found that the warrantless seizure 

was reasonable since it involved exigent circumstances. The 

restraint employed by the officers was adapted to the 

circumstances, avoiding significant intrusion into the home 

itself. The Court balanced the privacy-related and law 

enforcement-related concerns. The officers had probable cause 

to believe the defendant’s home contained evidence, and had 

valid reason to fear that, unless restrained, the defendant would 

destroy it before other officers could return with a warrant. The 

officers made reasonable efforts to reconcile their needs with the 

demands of personal privacy, and imposed the restraint for a 

limited period, two hours. Given the nature of the intrusion 

and the law enforcement interest at stake, the brief seizure of 

the premises was permissible.

Fourth Amendment 151


3. Associated Issues

United States v. Van Leeuwen

 397 U.S. 249, 90 S. Ct. 1029 (1970)

FACTS: At about 1:30 p.m., March 28, two 12-pound 

packages, each insured for $10,000, were deposited “airmail 

registered” at a post office in Mount Vernon, WA, near the 

Canadian border. The mailer declared that they contained 

coins. One package was addressed to a post office box in Van 

Nuys, CA, and the other to a post office box in Nashville, TN. 

The postal clerk told a policeman that he was suspicious of the 

packages. The policeman at once noticed that the return 

address on the packages was a vacant housing area and the 

license plates of the mailer’s car were from British Columbia. 

The policeman contacted the Canadian police, who called 

Customs in Seattle. Ninety minutes later, Customs learned that 

one addressee was under investigation in Van Nuys for 

trafficking in illegal coins. Due to the time differential, Customs 

was unable to reach Nashville until the following morning when 

they were advised that the second addressee was also being 

investigated for the same crime. A search warrant was issued 

at 4 p.m. and executed at 6:30 p.m., on the following day. The 

packages were opened, inspected, resealed, and promptly sent 

on their way.

ISSUE: Whether the twenty-nine hour delay in obtaining a 

search warrant for the packages was unreasonable 

under the Fourth Amendment?

HELD: No. Under the circumstances of coordination with 

officials in a distant location and time difference, 29 

hours was reasonable.

DISCUSSION: The nature and weight of a 12-pound “airmail 

registered” package, the mailer’s fictitious return address and 

Canadian license plates, and the knowledge that the addressee 

152 Fourth Amendment
is under investigation for trafficking in illegal coins, constituted 

probable cause for the issuance of a warrant to search the 

packages. Twenty-nine hours is not “unreasonable” within the 

meaning of the Fourth Amendment, where officials in the 

distant destination could not be reached sooner because of the 

time differential.



Segura v. United States

 468 U.S. 796, 104 S. Ct. 3380 (1984)

FACTS: Officers arrested two people for possessing cocaine. 

They told the officers that they had purchased the cocaine from 

the defendant. A U.S. Attorney told the officers to arrest the 

defendant but that a search warrant for the defendant’s 

apartment probably could not be obtained until the following 

day. The officers were to secure the apartment in the meantime 

to prevent the destruction of evidence.

The officers arrested the defendant in the lobby of his 

apartment building, took him to the apartment, knocked on his 

door, and when it was opened by Colon, entered the apartment 

without requesting or receiving permission. The officers 

conducted a limited security check of the apartment and in the 

process, observed in plain view various drug paraphernalia. 

Colon was arrested and he and the defendant were taken into 

custody. Two officers remained in the apartment awaiting the 

warrant, but because of administrative delay, the warrant was 

not issued until nineteen hours after the initial entry. In the 

search pursuant to the warrant, the agents discovered cocaine 

and records of narcotics transactions.

ISSUE: Whether the initial entry by the officers was lawful?

HELD: Yes. When officers, having probable cause, enter a 

premises, and secure the premises while others, in 

good faith, are in the process of obtaining a search 

warrant, they do not offend the Fourth Amendment.

Fourth Amendment 153
DISCUSSION: A seizure affects possessory interests. A

search affects privacy interests. Therefore, a warrantless 

seizure of a person’s property can be reasonable on the basis of 

probable cause but a warrantless search might be 

unreasonable.

In this case, the officers had probable cause in advance that 

there was a criminal enterprise being conducted in the 

defendant’s apartment. Securing the premises from within was 

no greater an interference with the defendant’s possessory 

interests (a seizure) than a perimeter stakeout. Under either 

method, officers control the apartment pending the arrival of a 

search warrant. Further, there was no evidence that the 

officers exploited the defendant’s privacy interests while in the 

apartment. They simply awaited issuance of the warrant.

As a secondary point, the exclusionary rule suppresses evidence 

not only obtained as a direct result of an illegal search or 

seizure, but also evidence later found to be derivative of that 

illegal venture. However, evidence is not to be excluded if the 

connection between the government conduct and the discovery 

and seizure of the evidence is so attenuated as to dissipate the 

illegal taint. Therefore, whether the initial entry was legal is 

irrelevant to the admissibility of the challenged evidence 

because there was an independent source for the warrant under 

which that evidence was seized. None of the information on 

which the warrant was secured was based on the initial entry 

into the defendant’s apartment.



Sgro v. United States

 287 U.S. 206, 53 S. Ct. 138 (1932)

FACTS: A magistrate issued a search warrant that was not 

executed until after the ten day limit (which was the limit at the 

time) had expired.

ISSUE: Whether the warrant was still valid?

154 Fourth Amendment
HELD: No. Search warrants must be served within the 

timeframe of their limitations.

DISCUSSION: The proof of probable cause that must be 

made before a search warrant can be issued must be closely 

related in time to the issuance of the warrant. Whether the 

proof meets this test is determined by the circumstances of 

each case.

“While the statute does not fix the time within which proof of 

probable cause must be taken by the judge or commissioner, it 

is manifest that the proof must be of facts so closely related to 

the time of the issue of the warrant as to justify a finding of 

probable cause at that time. Whether the proof meets this test 

must be determined by the circumstances of each case. It is in 

the light of the requirement that probable cause must properly 

appear when the warrant issues that we must read the 

provision which in explicit terms makes a warrant void unless 

executed within ten days after its date. That period marks the 

permitted duration of the proceeding in which the warrant is 

issued. There is no provision which authorizes the 

commissioner to extend its life or to revive it.” Issuing judges 

may not extent the 10-day time limit (or the current 14-day 

time limit) for search warrants. The rules permit judges to 

issue new warrants if probable cause still exists at a later time.

NOTE: Federal Rules of Criminal Procedure 41(a) permits 

the issuing judge to allow the executing officer to serve a search 

warrant for up to 14 days.



Gooding v. United States

 416 U.S. 430, 94 S. Ct. 1780 (1974)

FACTS: The government secured a search warrant for the 

defendant’s apartment to search for evidence of controlled 

substances. The warrant stated that the officers could make 

the search “at any time in the day or night.” The officers 

executed the warrant at nighttime and they uncovered a 

Fourth Amendment 155
substantial quantity of contraband.

ISSUE: Whether the government must make any special 

showing for a nighttime entry with a search warrant 

to search for a controlled substance?

HELD: No. The government may rely on 21 U.S.C. § 879, 

which allows for nighttime entry to search for 

controlled substances without any special showing.

DISCUSSION: Federal Criminal Procedure Rule 41 

specifically requires that search warrants be served in the 

daytime (6 a.m. to 10 p.m.) unless a special need to search at 

night is shown. The government did not make that showing 

here. However, the Supreme Court ruled that 21 U.S.C. § 879 

governed this search as it involved a controlled substance. This 

statute permits a nighttime search without any special showing

by the government. The statute provides that officers may serve 

a warrant at any time of the day or night if the issuing judge is 

satisfied that there is probable cause to believe that grounds 

exist for the warrant and for its service at such time. Title 21 

U.S.C. § 879(a) requires no special showing for need of a 

nighttime search, other than a showing that the contraband is 

likely to be on the property or person to be searched. The 

government meets this showing where an affidavit submitted by 

an officer suggests there was a continuing traffic of drugs from 

the suspect’s apartment, and a prior purchase through an 

informant had confirmed that drugs were available.



Dalia v. United States

 441 U.S. 238, 99 S. Ct. 1682 (1979)

FACTS: A federal court authorized a Title III order after 

finding probable cause that an individual was a member of a 

conspiracy to violate federal law. The defendant and others 

were using his office in the alleged conspiracy. Officers entered 

the defendant’s office secretly at night and spent three hours in 

the building installing an electronic interception device. Several 

156 Fourth Amendment
weeks later they returned to the office and removed the device.

ISSUE: Whether a Title III order also entails the authority 

to enter a premises to install the necessary 

equipment to engage in surreptitious recordings?

HELD: Yes. Without specifically stating this authority, a 

Title III order implies the authority to 

surreptitiously enter the target premises to install 

the necessary equipment.

DISCUSSION: The Supreme Court held that the Fourth 

Amendment did not prohibit per se a law enforcement officer’s 

covert entry into a private premises. The Fourth Amendment’s 

requirement is that such entry be reasonable. Although Title III 

of the Omnibus Crime Control and Safe Streets Act did not refer 

explicitly to covert entry, the language, structure, and history of 

the statute indicated that Congress had conferred power upon 

the courts to authorize covert entries for enforcement of the law. 

The Court stated that the Fourth Amendment does not require 

that an electronic surveillance order issued by a court under 

Title III include a specific authorization to enter covertly the 

premises described in the order.



Franks v. Delaware

 438 U.S. 154, 98 S. Ct. 2674 (1978)

FACTS: Officers obtained a search warrant to search the 

defendant’s premises for clothing worn during a rape. The 

defendant claimed the affidavit for the search warrant contained 

untrue statements. He moved to suppress the search warrant 

based on the untruthfulness of the affidavit.

ISSUE: Whether the defendant is entitled to a hearing when 

he makes specific allegations of recklessly used 

material false statements in an affidavit upon which 

a search warrant was issued?

Fourth Amendment 157
HELD: Yes. The defendant is entitled to challenge the 

affidavit upon which a search warrant has been 

issued.

DISCUSSION: “Where the defendant makes a substantial 

preliminary showing that a false statement knowingly and 

intentionally, or with reckless disregard for the truth, was 

included by the affiant in the warrant affidavit, and if the 

allegedly false statement is necessary to the finding of probable 

cause, the Fourth Amendment requires that a hearing be held 

at the defendant’s request. . .”



Wilson v. Layne

 526 U.S. 603, 119 S. Ct. 1692 (1999)

FACTS: Deputy U.S. Marshals attempted to execute an 

arrest warrant for Dominic Wilson at his last know place of 

residence. Unbeknownst to the Deputy Marshals, the address 

was actually that of his parents. The arrest team invited a 

newspaper photographer and reporter to accompany them on 

the execution of the arrest warrant. The Deputy Marshals 

entered Wilson’s parents’ home in a futile effort to arrest him. 

The reporter and photographer also entered the home, and the 

photographer took many pictures of the event. After learning 

that the subject of the warrant was not at the premises, the 

Deputy Marshals and the newspaper reporter and photographer 

left the premises. The Wilsons sued the Deputy Marshals in a 

Bivens action for violating their Fourth Amendment right to be 

free from unreasonable searches and seizures.

ISSUE: Whether the inclusion of third parties on the arrest 

team that do not assist in the execution of a 

warrant is unreasonable?

HELD: Yes. A warrant only authorizes third parties to 

enter a premises that will assist in the purpose of 

the intrusion.

158 Fourth Amendment
DISCUSSION: The Court found no problem with the Deputy 

Marshals’ entry into the dwelling to execute an arrest warrant. 

However, the intrusion that an arrest warrant allows is limited 

in scope to making an arrest. The government could not state a 

valid claim for the intrusion into the private home of a 

newspaper reporter and photographer as they in no way 

assisted in the objective of the arrest warrant. Therefore, the 

Court held their participation to be an unreasonable intrusion, 

and prohibited by the Fourth Amendment.



Hanlon v. Berger

 526 U.S. 808, 119 S. Ct. 1706 (1999)

FACTS: The defendants lived on a 75,000-acre ranch. A 

magistrate issued a warrant authorizing the search of “The Paul 

W. Berger ranch with appurtenant structures, excluding the 

residence” for evidence of “the taking of wildlife in violation of 

Federal laws.” About a week later, a multiple-vehicle caravan 

consisting of government agents and a crew of photographers 

and reporters from CNN proceeded to a point near the ranch. 

The agents executed the warrant and explained that “Over the 

course of the day, the officers searched the ranch and its 

outbuildings pursuant to the authority conferred by the search 

warrant. The CNN media crew accompanied the officers and 

recorded the officers’ conduct in executing the warrant.” The 

defendants sued federal agents for violating their Fourth 

Amendment rights. 

ISSUE: Whether the officers can be held liable under 

Bivens for allowing persons not assisting in the 

execution of the warrant to intrude on the 

defendant’s privacy?

HELD: Yes. Courts granted the government permission to 

intrude on privacy with the use of a search warrant 

for the singular purpose of obtaining items 

expressed in the warrant. Allowing a search

warrant to be used for other, additional purposes is 

Fourth Amendment 159
unreasonable.

DISCUSSION: The Supreme Court held in Wilson v. Layne

that Fourth Amendment rights of homeowners were violated 

when officers allow members of the media to accompany them 

during the execution of a warrant. The inclusion of personnel 

that are not necessary for the successful completion of the 

search warrant is an unreasonable intrusion into the privacy of 

the defendants. 



VI. SEARCH WARRANT EXCEPTIONS - NEED P.C.

A. PLAIN VIEW

Horton v. California

 496 U.S. 128, 110 S. Ct. 2301 (1990)

FACTS: An officer determined that there was probable 

cause to search the defendant’s home for evidence of a robbery. 

His affidavit for a search warrant referred to the weapons used 

in the crime as well as the proceeds, but the search warrant 

issued by the Magistrate only authorized a search for the 

proceeds.

During the execution of the warrant, the officer did not find the 

stolen property. However, he discovered the weapons in the 

course of searching for the proceeds and seized them. The 

officer testified that while he was searching for the proceeds, he 

was also interested in finding other evidence connecting the 

defendant to the robbery. The seized evidence was not 

discovered “inadvertently.”

ISSUE: Whether the warrantless seizure of evidence of 

crime in plain view must be inadvertent? 

HELD: No. The plain view doctrine does not require 

evidence of crime to be discovered inadvertently.

160 Fourth Amendment
DISCUSSION: An essential and initial predicate to a valid 

plain view seizure is that the officer did not violate the Fourth 

Amendment in arriving at the place from which the evidence 

was plainly viewed. The officer must be lawfully present in the 

area in which the item is seized. Second, the incriminating 

character of the object must also be “immediately apparent.”

The items seized from the defendant’s home were discovered 

during a lawful search authorized by a valid warrant. The 

officer was legally present. When the items were discovered, it 

was immediately apparent to the officer that they constituted 

incriminating evidence. In this case, the seizure was 

reasonable.



Arizona v. Hicks

 480 U.S. 321, 107 S. Ct. 1149 (1987)

FACTS: A bullet was fired through the floor of the 

defendant’s apartment, injuring a man in the apartment below. 

Officers arrived and entered the defendant’s apartment to 

search for the shooter, victims, and weapons. They found and 

arrested two combatants and seized some weapons.

During this engagement, an officer noticed two sets of expensive 

stereo components, “which seemed out of place in the squalid 

and otherwise ill-appointed apartment.” Suspecting that they 

were stolen, he picked up some of the components, read and 

recorded their serial numbers. The officer then reported by 

phone to his headquarters. After being told that one of the 

components had been stolen in an armed robbery, he 

immediately seized it. It was later determined that some of the 

other serial numbers matched those on other stereo equipment 

taken in the same armed robbery, and a warrant was obtained 

to seize that equipment as well.

ISSUE: Whether the evidence seized was obtained under 

the plain view doctrine?

HELD: No. The evidence could not be seized under the 

Fourth Amendment 161
plain view doctrine because the evidence was not 

immediately apparent to be evidence of a crime at 

the time of the seizure.

DISCUSSION: The officer’s moving of the equipment 

constituted a “seizure” separate from the search for the shooter, 

victims, and weapons that were the lawful objectives of his 

entry into the apartment. The state conceded that the officer 

did not have probable cause, but only reasonable suspicion to 

move the stereo components. Absent special operational 

necessity, any seizure that is unrelated to the original exigency 

that justified the officer’s warrantless entry must be supported 

by probable cause. As the officer did not have probable cause 

at the time he seized the stereo components, the “plain view” 

doctrine cannot apply.



Texas v. Brown

 460 U.S. 730, 103 S. Ct. 1535 (1983)

FACTS: An officer stopped the defendant’s automobile at 

night at a routine driver’s license checkpoint. The officer asked 

the defendant for his license, and shined his flashlight into the 

car. He saw an opaque, green party balloon, knotted near the 

tip, fall from the defendant’s hand to the seat beside him. 

Based on his experience in drug offense arrests, the officer was 

aware that narcotics were frequently packaged in this way. 

While the defendant was looking in the glove compartment for 

his license, the officer shifted his position to obtain a better view 

and noticed small plastic vials, loose white powder, and an open 

bag of party balloons in the glove compartment. After the 

defendant stated that he did not have a driver’s license in his 

possession, he complied with the officer’s request to get out of 

the car. The officer picked up the green balloon, which 

appeared to contain a powdery substance within its tied-off 

portion. He placed the defendant under arrest and searched

the car. Other items were seized.

ISSUE: Whether the evidence was obtained in plain view?

162 Fourth Amendment
HELD: Yes. “Plain view” is an expression used to describe 

the legal seizure of evidence obtained by an officer 

intruding into an area in which he or she has a 

right to be and observes something in which he or 

she has probable cause (“immediately apparent”) to 

believe is evidence of a crime.

DISCUSSION: The Court held the officer did not violate the 

Fourth Amendment in seizing the balloon. The “plain view” 

doctrine provides grounds for a warrantless seizure of a 

suspicious item when the officer's access to the item has some 

prior justification under the Fourth Amendment. Here, the 

officer’s initial stop of the defendant’s vehicle was valid, and his 

actions in shining his flashlight into the car and changing his 

position to see what was inside did not violate any privacy 

rights. The “immediately apparent” requirement of the “plain 

view” doctrine does not mean that a police officer “know” that 

certain items are contraband or evidence of a crime. The officer 

must only have probable cause at the moment of seizure. 

Probable cause is a flexible, common sense standard, merely 

requiring that the facts available to the officer would warrant a 

person of reasonable caution to believe that certain items may 

be contraband or stolen property or useful as evidence of a 

crime. The officer had probable cause to believe that the 

balloon contained a controlled substance.



B. MOBILE CONVEYANCES

Carroll v. United States

 267 U.S. 132, 45 S. Ct. 280 (1925)

FACTS: Undercover prohibition agents met with the 

defendant and two accomplices to buy illegal whiskey. The 

defendant left to get the whiskey but could not do so because 

his source was not in. One of his accomplices informed the 

undercover agents they would deliver it the next day. The 

officers observed the vehicle and registration number the 

defendant and his accomplices were using during these 

Fourth Amendment 163
negotiations.

The defendant did not make the arranged delivery the following 

day. A week later, while patrolling a highway commonly used to 

smuggle whiskey into the country the agents saw the defendant 

in the same car as before. They gave pursuit but lost the car. 

Two months after that, the agents again saw the defendant in 

the same car on the same road. The agents believed they had 

probable cause as the highway was often used in the illegal 

transportation of liquor, and they had information that the car 

and its occupants were engaged in the illegal business of 

“bootlegging.” The agents stopped the defendant, searched the 

car, and found sixty-eight bottles of illegal whiskey.

ISSUE: Whether the search of the defendant’s automobile 

without a warrant violated the Fourth Amendment?

HELD: No. If an officer stops a car based on probable 

cause and conducts a search in order to preserve 

evidence due to the automobile’s mobility, the 

search may be conducted without a warrant.

DISCUSSION: The guarantee of freedom from unreasonable 

searches and seizures by the Fourth Amendment has been 

construed as recognizing a necessary difference between a 

search of a structure (whereby a warrant can readily be 

obtained) and a search of a vehicle (where it is not practical to 

secure a warrant because the vehicle can be quickly moved out 

of the locality or jurisdiction in which the warrant must be 

sought). Therefore, contraband goods concealed and illegally 

transported in an automobile or other vehicle may be searched 

for without a warrant if the agent has probable cause to believe 

the vehicle contains contraband.



Chambers v. Maroney

 399 U.S. 42, 90 S. Ct. 1975 (1970)

FACTS: Officers established probable cause that four men 

164 Fourth Amendment
in a blue station wagon committed an armed robbery. Within 

an hour, officers stopped a blue station wagon containing four 

men approximately two miles from the crime scene. Officers 

arrested the men and drove their vehicle to the police station 

where it was searched without a warrant. Inside the vehicle, 

officers found evidence connected to the robbery.

ISSUE: Whether the warrantless search of the automobile 

and the seizure of the evidence was lawful? 

HELD: Yes. A warrantless search of a vehicle is valid 

despite the fact that a warrant could have been 

procured without endangering the preservation of 

evidence.

DISCUSSION: Automobiles and other conveyances may be 

searched without a warrant, provided there is probable cause to 

believe the vehicle contains articles that the officers are entitled 

to seize. Having established that contraband concealed in a 

vehicle may be searched for without a warrant, the Court 

considered the circumstances under which such search may be 

made.

The Court saw no distinction in seizing and holding a car before 

presenting probable cause to a magistrate, and carrying out an 

immediate search without a warrant. Given probable cause to 

search, the Court held that either course is reasonable under 

the Fourth Amendment. The light blue station wagon could 

have been searched on the spot where it was stopped since 

there was probable cause to search. Therefore, the warrantless 

search that took place was reasonable.



United States v. Ross

 456 U.S. 798, 102 S. Ct. 2157 (1982)

FACTS: Officers developed probable cause the defendant was 

selling controlled substances out of his parked car. The officers 

approached the defendant, ordered him out of the car and 

Fourth Amendment 165
searched the passenger compartment. The officers found a 

bullet on the front seat and a pistol in the glove compartment. 

An officer arrested and handcuffed the defendant while other 

officers searched the trunk of the car. Inside the trunk, officers 

found a closed brown paper bag that contained heroin. The 

officers moved the car to the police station and searched it 

again, finding a closed leather pouch that contained $3,200 in 

cash.

ISSUE: Whether officers, who have lawfully stopped an 

automobile and have probable cause to believe that 

contraband is concealed somewhere within it, may 

conduct a search of compartments and containers 

that are not openly visible? 

HELD: Yes. If probable cause justifies the search of a 

lawfully stopped automobile, it justifies the search 

of every part of the vehicle and its contents that 

might conceal the object of the search.

DISCUSSION: Because the officers lawfully detained the 

defendant and established probable cause his vehicle contained 

contraband, the officers could conduct a warrantless search of 

the vehicle. The search could be as thorough as one authorized 

by a warrant issued by a magistrate. Every part of the vehicle 

where the contraband might be stored could be searched. This 

included all receptacles and packages that could possibly 

contain the object of the search.



Michigan v. Thomas

 458 U.S. 259, 102 S. Ct. 3079 (1982)

FACTS: The defendant was the front-seat passenger of a 

lawfully stopped vehicle. The officers noticed a bottle of alcohol 

between the defendant’s feet and arrested him for being in 

possession of open intoxicants in a motor vehicle. The driver of 

the car was cited for not having an operator’s license. A tow 

truck was summoned and an officer, pursuant to departmental 

166 Fourth Amendment
policy, searched the vehicle as it was being impounded. He 

found marijuana in the glove compartment. Based on this 

discovery, he continued his search and found a gun in an air 

vent.

ISSUE: Whether the officer was entitled to search under the 

mobile conveyance exception after conducting an 

inventory search?

HELD: Yes. The officer was reasonable in conducting a 

mobile conveyance search even after conducting an 

inventory search.

DISCUSSION: It was reasonable for the officers to search 

the motor vehicle under the inventory policy, as they were 

responsible for the contents therein. This led to the discovery of 

marijuana, giving the officers probable cause that other 

contraband could be found in the car. The Court held that once 

the officers established probable cause, they were entitled to 

search despite the fact that the car had previously been 

searched through the inventory policy. This led to the lawful 

discovery of the handgun in the air vent. The fact that the car 

was immobilized for want of an operator was inconsequential.



Florida v. Myers

 466 U.S. 380, 104 S. Ct. 1852 (1984)

FACTS: Officers arrested the defendant in his automobile, 

searched it and seized several items. The officers had the 

defendant’s automobile towed to a secure, locked impound lot. 

Eight hours later, an officer went to the impound lot and, 

without obtaining a warrant, searched the defendant’s 

automobile for a second time and seized additional evidence.

ISSUE: Whether a search conducted under the mobile 

conveyance doctrine, conducted after a search 

incident to an arrest and after the automobile was 

impounded and in police custody, violates the 

Fourth Amendment 167
Fourth Amendment?

HELD: No. A warrantless search of an automobile 

impounded and in police custody conducted eight 

hours after a valid initial search is proper as a 

mobile conveyance search if the officers have 

probable cause.

DISCUSSION: In Michigan v. Thomas, the Court upheld a 

warrantless search of an automobile even though the 

automobile was in government custody and a prior inventory 

search of the car had already been made. That case specifically 

rejected the argument that the justification to conduct a 

warrantless search vanishes once the car has been taken into 

custody and impounded. The justification for the initial 

warrantless search did not vanish once the car had been 

immobilized. To conduct a mobile conveyance search, the 

government only needs to establish probable cause that the 

evidence sought it located in the mobile conveyance.



United States v. Johns

 469 U.S. 478, 105 S. Ct. 881 (1985)

FACTS: Pursuant to an investigation of a suspected drug 

smuggling operation, officers observed two pickup trucks as 

they traveled to a remote, private landing strip, and the arrival 

and departure of two small airplanes. The officers smelled the 

odor of marijuana as they approached the trucks and observed 

packages wrapped in dark green plastic and sealed with tape, a 

common method of packaging marijuana. The officers arrested 

the defendant, took the pickup trucks to their headquarters, 

and secured the vehicles. Three days later, without obtaining a 

search warrant, the agents opened some of the packages and 

took samples that proved to be marijuana.

ISSUE: Whether a warrantless search of the packages three 

days after they were removed from vehicles is 

justified under the mobile conveyance exception to 

168 Fourth Amendment
the warrant requirement? 

HELD: Yes. The Supreme Court held that if the officers 

have probable cause to look for evidence in a mobile 

conveyance, they do not need to obtain a warrant.

DISCUSSION: The warrantless search of the packages was 

reasonable even though it occurred three days after the 

packages were seized. The Ross case established that the 

officers could have searched the packages when they were first 

discovered in the trucks at the airstrip. Moreover, there is no 

requirement that a Carroll search of a vehicle occur 

contemporaneously with its lawful seizure.



Pennsylvania v. Labron

 518 U.S. 938, 116 S. Ct. 2485 (1996)

FACTS: Officers observed the defendant engage in a drug 

transaction. They pulled him over, arrested him, searched his 

car and found cocaine in the trunk. The Supreme Court of 

Pennsylvania suppressed the cocaine because the officers could 

have obtained a search warrant before they searched the 

defendant’s car under the Carroll doctrine.

ISSUE: Whether the officers need to establish exigent 

circumstances before searching a car under the 

mobile conveyance exception to the Fourth 

Amendment’s warrant requirement?

HELD: No. Once the officers establish probable cause to 

search a car under the mobile conveyance 

exception, they do not need to obtain a warrant.

DISCUSSION: The Supreme Court established the mobile 

conveyance exception to the warrant requirement of the Fourth 

Amendment because of the necessity of coping with rapidly 

disappearing objects. However, the Court has shifted the focus 

of this exception from the exigency of the speed of the vehicle to 

Fourth Amendment 169
the fact that persons have only a reduced expectation of privacy 

in an automobile. The Court discarded the original requirement 

that the government establish that the automobile searched 

was in immediate danger of disappearing. The Court stated “if 

a car is readily mobile and probable cause exists to believe it 

contains contraband, the Fourth Amendment thus permits 

police to search the vehicle without more.” 



Maryland v. Dyson

 527 U.S.465, 119 S. Ct. 2013 (1999)

FACTS: A Deputy Sheriff received a tip from a reliable 

informant that the defendant was about to transport cocaine 

from New York. The informant stated that the defendant had 

rented a red Toyota Corolla and provided the license plate 

number for the transportation. The deputy verified that the 

defendant, a known drug dealer, rented such a vehicle. Several 

hours later, law enforcement officers stopped this vehicle and 

searched it. They found cocaine in the trunk. The Maryland 

appellate court found the officers had probable cause but 

suppressed the evidence because the officers had time to secure 

a search warrant but failed to do so.

ISSUE: Whether officers must obtain a search warrant for a 

mobile conveyance, after developing probable 

cause, if they have the time to secure one?

HELD: No. Officers are not required to obtain a search 

warrant for a mobile conveyance even if they have 

time to secure one.

DISCUSSION: Generally, the Court requires a search 

warrant to conduct a search under the Fourth Amendment. 

However, the Supreme Court has offered a variety of exceptions 

to the warrant requirement. One of these exceptions is the 

mobile conveyance, or automobile, exception. The Supreme 

Court originally created the automobile exception to the warrant 

requirement because of the exigency caused by their mobility. 

170 Fourth Amendment
In an earlier line of cases, the Supreme Court held that if the 

government had time to secure a warrant, it must do so. 

However, in 1982 (Ross v. United States) the Supreme Court 

discarded this principle. Under this principle of law, the 

government may conduct a search of an automobile if it has 

probable cause and the item searched is immediately mobile.



California v. Carney

 471 U.S. 386, 105 S. Ct. 2066 (1985)

FACTS: Officers received information that the defendant 

was exchanging marijuana for sex in a motor home parked in a 

lot in downtown San Diego. Offices stopped a youth, who had 

entered and then left the motor home. The youth told the 

officers he had received marijuana in return for allowing the 

defendant sexual contact. The youth, at the officer’s request, 

went back to the motor home, knocked on the door, and the 

defendant stepped out. The officer went inside and observed 

marijuana. A subsequent search of the motor home revealed 

additional marijuana. The motor home was the defendant’s 

residence.

ISSUE: Whether a motor home used as a residence is a 

motor vehicle for purposes of the motor vehicle 

exception?

HELD: Yes. A motor home is treated as a vehicle, rather 

than a dwelling, if it is immediately mobile.

DISCUSSION: When a vehicle is being used on highways or 

is capable of that use and is found stationary in a place not 

regularly used for residential purposes, two justifications for the 

vehicle exception to the warrant requirement came into play. 

First, that the vehicle is readily mobile. Second, there is a 

reduced expectation of privacy stemming from the pervasive 

regulation of vehicles. Under these circumstances, the 

overriding societal interests in effective law enforcement justify

an immediate search before the vehicle and its occupants 

Fourth Amendment 171
become mobile.

In this case, the defendant’s vehicle possessed many attributes 

of a home. However, the vehicle falls clearly within the scope of 

the automobile exception since the defendant’s motor home was 

readily mobile. While the vehicle is capable of functioning as a 

home, to distinguish between a motor home and a typical car 

would require that the mobile conveyance exception be applied 

depending upon the size of the vehicle and the quality of its 

appointments. The Court was not willing to make this 

distinction. Therefore, under the mobile conveyance exception 

to the warrant requirement, the search of the defendant’s motor 

home was reasonable.



California v. Acevedo

 500 U.S. 565, 111 S. Ct. 1982 (1991)

FACTS: Officers made a controlled delivery of marijuana. 

The dealer took the packages to his apartment. The officers

then observed the defendant enter the dealer’s apartment, 

where he stayed for about ten minutes. The defendant then 

reappeared carrying a brown paper bag that appeared full. The 

bag was the size of one of the wrapped marijuana packages. 

The defendant placed the package in the trunk of his car and 

began to drive away. Fearing the loss of evidence, officers, 

without a warrant, stopped him, opened the trunk and the bag, 

and found the marijuana.

ISSUE: Whether the Fourth Amendment requires the

officers to obtain a warrant to open a container 

found in a vehicle?

HELD: No. In a search extending to a container located in

a mobile conveyance, officers may search the 

container without a warrant where they have 

probable cause to believe that it holds contraband 

or evidence.

172 Fourth Amendment
DISCUSSION: The Court in Ross took the critical step of 

holding that closed containers in vehicles can be searched 

without a warrant because of their presence within that vehicle. 

The Court saw no principled distinction between the paper bag 

found by the officers in Ross and the paper bag found by the 

officers here.

Ross now applies to all searches of containers found in an 

automobile; i.e., the government may search an automobile and 

the containers within it if they have probable cause to believe 

that contraband or evidence is located inside. “The scope of a 

warrantless search of an automobile . . . is not defined by the 

nature of the container in which the contraband is secreted. 

Rather, it is defined by the object of the search and the places 

in which there is probable cause to believe that it may be 

found.” However, the Court reaffirmed the principle that 

“probable cause to believe that a container placed in the trunk 

of a taxi contains contraband or evidence does not justify a 

search of the entire cab.”



Wyoming v. Houghton

 526 U.S. 295, 119 S. Ct. 1297 (1999)

FACTS: The defendant was one of two female passengers in 

a lawfully stopped automobile. While the officer was 

questioning the driver, David Young, he noticed a syringe in 

Young’s shirt pocket. The officer asked Young to step out of the 

car and asked why he had a syringe. Young stated the syringe 

was used to take drugs. The officer entered the automobile in 

search of contraband. On the back seat of the automobile, he 

found a purse, which was claimed by the defendant. Inside the 

purse the officer located a wallet containing her driver’s license, 

a brown pouch and a black, wallet-type container. The 

defendant admitted that the black wallet belonged to her but 

denied ownership of the brown pouch. The officer found 

contraband in both containers.

ISSUE: Whether an officer is justified in searching 

Fourth Amendment 173
passengers’ containers under the mobile 

conveyance exception to the Fourth Amendment’s 

warrant requirement?

HELD: Yes. The mobile conveyance exception to the 

Fourth Amendment’s warrant requirement allows 

the officers to search wherever the items they seek 

could be located in the mobile conveyance.

DISCUSSION: The Supreme Court stated that the officer’s 

probable cause to search the automobile was incontestable. 

Once the Court found probable cause existed, it limited its 

discussion to determining the scope of the search. Citing 

United States v. Ross (1982), the Supreme Court stated that “[I]f 

probable cause justifies the search of a lawfully stopped vehicle, 

it justifies the search of every part of the vehicle and its 

contents that may conceal the object of the search.” In the case 

at hand, the Court held that this includes containers that 

belong to passengers. In doing so, the Court rejected ownership 

as a factor to be considered by the officer before conducting an 

automobile search. While the Court held that the containers of 

passengers were subject to a search of the mobile conveyance, 

this same rationale could not be applied to the body of the 

passengers because of the significantly heightened protection 

traditionally provided to one’s person.



C. DESTRUCTION OF EVIDENCE

Kentucky v. King

 563 U.S. ____, 131 S. Ct. 1849 (2011)

FACTS: Officers followed a suspected drug dealer to an 

apartment complex but lost sight of him as he entered the 

breezeway. Upon entering the breezeway officers saw two 

apartments, one on the left and the other to the right. The 

officers detected the very strong odor of burnt marijuana 

outside the apartment door on the left. Approaching the 

apartment door on the left, the officers knocked loudly and 

174 Fourth Amendment
announced their presence. As the officers began knocking, they 

heard noises coming from the apartment; the officers believed 

these noises were consistent with the destruction of evidence. 

The officers then announced their intent to enter the apartment 

and forced entry by kicking in the door. The defendant and 

others were found inside the apartment. During a protective 

sweep officers saw drugs in plain view. The suspected drug 

dealer was later found in the other apartment on the right side 

of the breezeway. 

ISSUE: Whether the exigent circumstances exception to the 

warrant requirement applies when officers’ 

presence causes the occupants to attempt to 

destroy evidence by knocking on the door of a 

residence and announcing their presence?

HELD: Yes. The exigent circumstances exception applies 

when the government does not create the exigency 

by engaging in, or threatening to engage in, conduct 

that violates the Fourth Amendment.

DISCUSSION: The Court applied a two part test for the 

“police created exigency” doctrine whereby the trial court must 

determine (1) whether exigent circumstances existed; and (2) 

whether the officers impermissibly created the exigency by 

violating or threatening to violate the Fourth Amendment. By 

merely knocking on the door to the apartment the officers did 

no more than any private citizen might do. The officers were 

not responsible for the occupants’ reaction to their presence at 

the door. The occupants could have chosen to not answer the 

door instead of destroying evidence. Therefore, because the 

officers did not violate or threaten to violate the Fourth 

Amendment, the exigency justified the warrantless search of the 

residence. 

The exigent circumstances rule justifies a warrantless search 

when the conduct of the officers preceding the exigency is 

objectively reasonable under the Fourth Amendment. 

Warrantless entry to prevent the destruction of evidence is 

reasonable and is therefore allowed where the officers do not 

Fourth Amendment 175
create the exigency by engaging in or threatening to engage in 

conduct (such as announcing they would break the door down 

if the occupants do not open the door voluntarily) that violates 

the Fourth Amendment. 



Cupp v. Murphy

 412 U.S. 291, 93 S. Ct. 2000 (1973)

FACTS: The defendant’s wife was murdered by 

strangulation. Soon thereafter, the defendant and his attorney 

voluntarily went to the police station for questioning. The 

officers noticed a dark spot on the defendant’s finger. 

Suspecting the spot might be dried blood and knowing that 

evidence of strangulation is often found under an assailant’s 

fingernails, an officer asked the defendant if he could take a 

scraping sample from the defendant’s fingernails. The 

defendant refused, put his hands behind his back and appeared 

to rub them together. The defendant then put his hands in his 

pockets and appeared to be cleaning them. Without a warrant, 

officers forcefully took the samples, which contained traces of 

skin, blood, and fabric from the victim’s nightgown.

ISSUE: Whether the warrantless search of the defendant’s 

fingernails was an unreasonable search?

HELD: No. The Court found that the existence of probable 

cause and the very limited intrusion undertaken at 

the station to preserve the readily destructible 

evidence was a reasonable search.

DISCUSSION: The search of the defendant’s fingernails went 

beyond observing the physical characteristics constantly 

exposed to the public. It constituted the type of severe, though 

brief, intrusion upon personal security that is subject to the 

Fourth Amendment.

Even though the defendant was not arrested, he was sufficiently 

apprised of his suspected role in the crime to motivate him to 

176 Fourth Amendment
attempt to destroy what evidence he could. His actions of 

putting his hands behind his back and then into his pockets 

were a sufficient indication of the likelihood of the destruction 

of evidence. While a full Chimel search incident to arrest would 

not be justified (the defendant had not been placed under 

arrest) the Court held that a limited intrusion to preserve 

evidence is reasonable. These actions by the defendant, along 

with the existence of probable cause, justified the limited 

intrusion undertaken by the government to preserve the 

evidence under the defendant’s fingernails.

NOTE: This case is often cited as a “search incident to 

arrest” case, and justifiably so. However, it is placed in this 

section to serve as an example of the urgency brought about by 

the possibility of the destruction of evidence. As the Court 

stated “On the facts of this case, considering the existence of 

probable cause, the very limited intrusion undertaken incident 

to the station house detention, and the ready destructibility of 

the evidence, we cannot say that this search violated the Fourth 

and Fourteenth Amendments (underline added).”



Schmerber v. California

 384 U.S. 757, 86 S. Ct. 1826 (1966)

FACTS: The defendant was involved in an accident and 

transported to the hospital. At the hospital, officers arrested 

him for driving an automobile while under the influence of 

intoxicating liquor. At the direction of an officer, a physician 

took a blood sample from the defendant’s body. The chemical 

analysis of the sample indicated the defendant was intoxicated 

at the time of the accident.

ISSUE: Whether the warrantless, nonconsensual blood 

sample taken from the defendant violated the 

Fourth Amendment right to be free from 

unreasonable searches and seizures?

Fourth Amendment 177
HELD: No. The Fourth Amendment does not prohibit the 

government from conducting minor intrusions into 

an individual’s body under stringently limited 

conditions.

DISCUSSION: The officers had probable cause to arrest the 

defendant and charge him with driving an automobile while 

under the influence of intoxicating liquor. The officer who 

arrived at the scene shortly after the accident smelled liquor on 

the defendant’s breath and testified that the defendant 

exhibited symptoms of intoxication. The officer believed that he 

was confronted with an exigency. The Court stated “[T]he 

officer in the present case, however, might reasonably have 

believed that he was confronted with an emergency, in which 

the delay necessary to obtain a warrant, under the 

circumstances, threatened ‘the destruction of evidence,’” citing 

Preston v. United States, (1964). Therefore, the attempt to 

secure evidence of blood-alcohol content in this case was 

appropriate.

The test chosen to measure the defendant’s blood-alcohol level 

was a reasonable one. Extraction of blood samples for testing is 

a highly effective means of determining the degree to which a 

person is under the influence of alcohol. The quantity of blood 

extracted is minimal and the procedure involves virtually no 

risk, trauma, or pain. Finally, the test was performed in a 

reasonable manner. The blood was taken by a physician at a 

hospital according to accepted medical practices. Therefore, 

there was no violation of the defendant’s rights under the 

Fourth Amendment.



Missouri v. McNeely

 569 U.S. ___, 133 S. Ct. 1552 (2013) 

FACTS: An officer stopped the defendant’s vehicle for 

speeding and repeatedly crossing the center line. The officer

made several observations that led him to suspect the 

defendant was intoxicated. After performing poorly on several 

178 Fourth Amendment
field sobriety tests, the officer asked the defendant to use a 

portable breath-test device. The defendant refused and the 

officer placed him under arrest. During transportation to the 

station house, the defendant again indicated he would not 

provide a breath sample. The officer changed course and took 

the defendant to a local hospital. There, the defendant refused 

to participate in a blood test. A lab technician drew blood from 

the defendant, which was used as evidence in a subsequent 

prosecution.

ISSUE: Whether the government was justified in the 

warrantless taking of evidence from the defendant’s 

person that was being destroying his body?

HELD: No. The government must demonstrate in each 

instance the difficulties in obtaining a warrant 

before an exigency is created.

DISCUSSION: “To determine whether a law enforcement 

officer faced an emergency that justified acting without a 

warrant, this Court looks to the totality of circumstances.” In 

doing so, the Court rejected a standard rule that would have 

excused the government from the warrant requirement in all 

drunk driving cases. The Court held that “while the natural 

dissipation of alcohol in the blood may support a finding of 

exigency in a specific case, as it did in Schmerber, it does not 

do so categorically. Whether a warrantless blood test of a 

drunk-driving suspect is reasonable must be determined case 

by case based on the totality of the circumstances.” Exceptions 

may be granted where the government can demonstrate that 

exigent circumstances exist in a particular case because a 

warrant could not have been obtained within a reasonable 

amount of time. The government made no such showing here.



Fourth Amendment 179
D. HOT PURSUIT

Warden v. Hayden

 387 U.S. 294, 87 S. Ct. 1642 (1967)

FACTS: A man robbed the office of a cab company and fled. 

Two cab drivers, attracted by the shouts of “holdup,” followed 

the man to a residence. One driver notified the company 

dispatcher by radio, giving a description of the man and the 

address he entered. The dispatcher relayed this information to 

the police who arrived at the scene within five minutes. The 

officers entered the house without a warrant, and spread out 

through the first and second floors and the cellar in search of 

the robber. The defendant was found in an upstairs bedroom 

feigning sleep, and placed under arrest.

Meanwhile, an officer was attracted to an adjoining bathroom 

by the noise of running water, and discovered a shotgun and a 

pistol in a flush tank. Another officer who “was searching the 

cellar for a man or the money” (and the Court said it should be 

noted that he was also looking for weapons), found a jacket and 

trousers in a washing machine of the type the fleeing man was 

said to have worn. A clip of ammunition for the pistol and a cap 

were found under the mattress of the defendant’s bed. 

Ammunition for the shotgun was found in a bureau drawer in 

the defendant’s room. At the time these searches were made, 

the officers did not know that the defendant had been arrested. 

All these items of evidence were introduced against the 

defendant at his trial.

ISSUE: Whether the entry into the house, without a 

warrant, and the search for the robber and for 

weapons, was reasonable?

HELD: Yes. The hot pursuit doctrine allows officers to 

make warrantless entries into zones of privacy for 

suspected persons and weapons.

DISCUSSION: The officers acted reasonably when they 

entered the house and began to search for a man and for 

180 Fourth Amendment
weapons that might be used against them. Neither the entry 

without a warrant to search for the robber, nor the search for 

him or his weapons was invalid as there were exigent 

circumstances. The officers acted reasonably when they 

entered the house and began to “search for the man... and for 

weapons which he had used in the robbery and might use 

against them (emphasis added).” “Speed here was essential, 

and only a thorough search of the house for persons and 

weapons could have insured that Hayden was the only man 

present and that the police had control of all weapons which 

could be used against them or to effect an escape.” “The 

permissible scope of search must, therefore, at the least, be as 

broad as may reasonably be necessary to prevent the dangers 

that the suspect at large in the house may resist or escape.”



Welsh v. Wisconsin

 466 U.S. 740, 104 S. Ct. 2091 (1984)

FACTS: A witness observed a car driving erratically that 

swerved off the road and came to a stop in an open field. No 

damage to any person or property occurred and the driver 

walked away from the scene. Officers arrived a few minutes 

later and were told by the witness that the driver was either 

inebriated or sick. The officers checked the car’s registration 

then went to the defendant’s house. After entering his home, 

the officers arrested the defendant for driving under the 

influence of an intoxicant. The penalty for a first offense under 

this statute was a non-criminal violation subject to a civil 

forfeiture proceeding for a maximum fine of $200. 

ISSUE: Whether the Fourth Amendment allows the 

government to make a warrantless entry of a 

person’s house in order to arrest the person for a 

non-jailable traffic offense?

HELD: No. The exigent circumstances exception in the 

context of a home entry is limited to the 

investigation of serious crimes. Misdemeanors 

Fourth Amendment 181
typically do not justify a warrantless entry.

DISCUSSION: Before officers may invade the sanctity of the 

home, the government must demonstrate exigent circumstances 

that overcome the presumption of unreasonableness that is 

inherent in all warrantless entries. An important factor to be 

considered is the gravity of the underlying offense for which the 

arrest is being made.

Probable cause to believe that a serious crime has been 

committed does not, by itself, create an exigency. Even a 

finding of an exigency rarely sanctions an intrusion if only a 

minor offense has been committed.

The defendant’s warrantless arrest in his home for a noncriminal traffic offense cannot be justified on the basis of the 

hot pursuit doctrine because there was no immediate or 

continuous pursuit of the defendant from the scene of the 

crime. Also, his arrest cannot be justified on the basis of public 

safety because the defendant had already arrived home and had 

abandoned his car at the scene of the accident. Finally, the 

defendant’s warrantless arrest cannot be justified as an 

emergency simply because evidence of the defendant’s bloodalcohol level might have dissipated while the police obtained a 

warrant. Therefore, the defendant’s arrest was invalid.



United States v. Santana

 427 U.S. 38, 96 S. Ct. 2406 (1976)

FACTS: Officers had probable cause to believe that the 

defendant possessed marked money that had earlier been used 

in an undercover heroin buy. Upon arriving at the defendant’s 

residence, but without a warrant, officers observed her standing 

in the doorway to her home holding a paper bag. They got out 

of their vehicle, shouted “police,” and displayed their 

identification. The defendant turned and ran into the entryway 

of her home, where the officers pursued and seized her. The 

defendant struggled to escape the officers, at which time “two 

182 Fourth Amendment
bundles of glazed paper packets with a white powder” fell out of 

the paper bag onto the floor. During a search of the defendant’s 

person, some of the marked money was discovered. The powder 

was later identified as heroin.

ISSUE: Whether the officers’ warrantless entry into the 

defendant’s home was justified under the Fourth 

Amendment?

HELD: Yes. The officers’ entry into the defendant’s home 

was justified because the officers were in “hot 

pursuit” of the defendant.

DISCUSSION: The Fourth Amendment is not violated when 

officers make a warrantless arrest in a public place for a felony 

offense. The question here is whether the defendant was in a 

public place. She was standing in her doorway when the 

officers first attempted to arrest her. “She was not merely 

visible to the public, but was as exposed to public view, speech, 

hearing, and touch as if she had been standing completely 

outside her house.” Once the defendant ran into her home, the 

officers were in “hot pursuit” of her. Had the officers failed to 

act quickly in this case, “there was a realistic expectation that 

any delay would result in the destruction of evidence.” For that 

reason, the warrantless entry into the defendant’s home was 

reasonable under the Fourth Amendment. After her lawful 

arrest, the search that produced the drugs and the marked 

money was incident to that arrest and, therefore, lawful.



E. EMERGENCY SCENES

Michigan v. Tyler

 436 U.S. 499, 98 S. Ct. 1942 (1978)

FACTS: A fire broke out in the defendant’s furniture store 

and the local fire department responded. When the fire chief 

arrived two hours later, firefighters reported the discovery of 

plastic containers of flammable liquid. The chief summoned a 

Fourth Amendment 183
detective to investigate possible arson. The detective took 

pictures but stopped the investigation because of the smoke. 

Two hours later, the fire was extinguished and the firefighters 

departed. The fire chief and detective removed the containers 

and left. There was neither consent nor a warrant for any of 

these entries or for the removal of the containers. Four hours 

later, the chief and his assistant returned for a cursory 

examination of the building and removed more pieces of 

evidence. Three weeks later, a state police officer took pictures 

at the store and made an inspection where further evidence was 

collected. Further entries were also made, all without warrants. 

ISSUE: Whether all warrantless governmental intrusions 

were reasonable?

HELD: No. Official entries to investigate the cause of a fire 

must adhere to the warrant procedures of the 

Fourth Amendment, unless the entry falls within 

one of the exceptions to the warrant requirement.

DISCUSSION: A Fourth Amendment search occurs 

whenever the government intrudes on a reasonable expectation 

of privacy. All entries are presumed illegal if no warrant is 

obtained. The Court has recognized several exceptions to this 

rule. A burning building presents an emergency of sufficient 

proportions to render a warrantless entry under the Fourth 

Amendment. Once firefighters are inside a building, they may 

remain there for the duration of the emergency. While there, 

the government may investigate the cause of the fire and may 

seize evidence of arson that is in plain view. In this case, no 

Fourth Amendment violation occurred by the firefighters’ entry 

to extinguish the fire at the defendant’s store, nor by the chief’s

removal of the plastic containers. Similarly, no warrant was 

required for the re-entries into the building and for the seizure 

of evidence after the departure of the fire chief and other 

personnel since these were a continuation of the first entry that 

was temporarily interrupted by smoke. 

However, if investigating officials require further access after the 

emergency concludes, they must obtain a warrant. To secure a 

184 Fourth Amendment
warrant to investigate the cause of a fire, an official must show 

more than the bare fact that a fire has occurred. The 

government must establish probable cause that arson was 

committed. As this was not done for the non-emergency 

entries, they were considered unreasonable under the Fourth 

Amendment.



Michigan v. Clifford

 464 U.S. 287, 104 S. Ct. 641 (1984)

FACTS: The defendant’s house caught fire. Local 

firefighters went to his house and extinguished the blaze. The 

fire had been doused and all fire officials and police left the 

premises at 7:04 a.m. Arson investigators entered the 

defendant’s residence without consent or a warrant about 1:30 

p.m. When the investigators arrived at the scene, a work crew 

was boarding up the house and pumping water out of the 

basement. Firefighters who fought the blaze found a fuel can in 

the basement and placed it in the driveway where the arson 

investigators seized it. In the basement, where the fire had 

originated, the arson investigators found two more fuel cans 

and a suspiciously positioned crock-pot. The investigators then 

made an extensive and thorough search of the rest of the house, 

calling in a photographer to take pictures.

ISSUE: Whether the arson investigators needed a warrant 

to search the contents of the dwelling?

HELD: Yes. Once the emergency presented by the fire was 

terminated, the government needed consent or a 

warrant to intrude.

DISCUSSION: Non-consensual entries onto fire-damaged 

premises normally turns on several factors, including whether 

there are legitimate privacy interests in the fire-damaged 

property, whether exigent circumstances justify the government 

intrusion regardless of any reasonable expectations of privacy, 

and whether the object of the search is to determine the cause 

Fourth Amendment 185
of the fire or to gather evidence of criminal activity. In this case, 

the defendant retained reasonable privacy interests in his firedamaged home.

The firefighters’ initial entry was valid as an emergency scene 

exception to the warrant requirement of the Fourth 

Amendment. However, by the time the arson investigators 

arrived at the dwelling, the emergency was no longer in 

existence. This was not merely a continuation of the earlier 

valid entry by firefighters.

Where a warrant is necessary to search a fire-damaged 

premises, an administrative warrant suffices if the primary 

object of the search is to determine the cause and origin of the 

fire. A criminal search warrant, obtained with probable cause, 

is required if the primary object of the search is to gather 

evidence of criminal activity. While the evidence found inside 

the home by the arson investigators was unreasonably seized, 

the fuel can seized in the driveway by the arson investigators 

was admissible whether seized in the basement by firefighters 

or in the driveway by arson investigators.



Mincey v. Arizona

 437 U.S. 385, 98 S. Ct. 2408 (1978)

FACTS: Officers raided the defendant’s apartment for 

controlled substances. During the raid, an officer was shot and 

killed. The officers, pursuant to an agency directive, which 

stated that officers should not investigate incidents in which 

they are involved, conducted no further investigation. A short 

time later, homicide detectives arrived on the scene and 

conducted a four-day warrantless search of the defendant’s 

apartment in which they seized numerous items of evidence.

ISSUE: Whether the evidence from the warrantless search 

of the defendant’s apartment was lawfully obtained 

under a “murder scene” exception?

186 Fourth Amendment
HELD: No. The “murder scene” exception does not exist. 

The fact that a homicide occurs does not, by itself, 

give rise to exigent circumstances to justify a 

warrantless search.

DISCUSSION: When the government comes upon the scene 

of a homicide they may make a prompt warrantless search of

the area to see if there are other victims or if a killer is still on 

the premises. The officers may also seize any evidence that is in 

plain view during the course of their legitimate emergency 

activities. But such a warrantless search must be strictly

limited by the emergency that justifies its initiation.

In this case, all the persons in the defendant’s apartment had 

been located before the investigating homicide officers arrived 

and began their search. There was no indication that evidence 

would be lost, destroyed, or removed during the time required to 

obtain a search warrant. Therefore, the four-day search of the 

defendant’s apartment was unreasonable under the Fourth 

Amendment.



Thompson v. Louisiana

 469 U.S. 17, 105 S. Ct. 409 (1984)

FACTS: The defendant shot her husband and ingested a 

quantity of pills in a suicide attempt. She then called her adult 

daughter, informed her of the situation and requested help. 

The daughter immediately called emergency services. Several 

deputies arrived at the defendant’s home in response to this 

information. The deputies entered the house, made a cursory 

search and discovered the defendant’s deceased husband. The 

defendant was lying unconscious in another room due to an 

apparent drug overdose. 

The officers immediately transported the defendant to the 

hospital and secured the scene. Thirty-five minutes later, two 

members of the homicide unit arrived and conducted a followup investigation of the homicide and attempted suicide.

Fourth Amendment 187
The deputies conducted a search of the house and found, 

among other things, a pistol inside a chest of drawers in the 

same room as the deceased body, a torn up note in a 

wastepaper basket in an adjoining bathroom, and another letter 

(alleged to be a suicide note) folded up inside an envelope 

containing a Christmas card on the top of a chest of drawers.

ISSUE: Whether these discoveries are admissible under the 

“murder scene” exception to the search warrant?

HELD: No. There is no “murder scene” exception to the 

Fourth Amendment’s warrant requirement.

DISCUSSION: Although the homicide investigators in this 

case had probable cause to search the premises, they did not 

have a warrant. Therefore, for the search to be valid, it must 

fall within one of the narrowly and specifically delineated 

exceptions to the warrant requirement. In Mincey v. Arizona, 

the Supreme Court unanimously rejected the existence of a 

murder scene exception. The Court noted the government may 

make warrantless entries onto premises where it reasonably 

believes a person within is in need of immediate aid, and that 

the government may make a prompt warrantless search of the 

area to see if there are other victims or a killer is on the 

premises.

Likewise, the warrantless search and seizure conducted at the 

home of the defendant by investigators who arrived at the scene 

thirty-five minutes after the woman was sent to the hospital is 

not valid on the ground that there was a diminished expectation 

of privacy in the woman’s home. The woman’s call for medical 

help cannot be seen as an invitation to the general public that 

would have converted her home into the sort of public place for 

which no warrant to search would be necessary. Therefore, the 

warrantless search after the defendant was taken to the 

hospital was unreasonable.



188 Fourth Amendment
Flippo v. West Virginia

 528 U.S. 11, 120 S. Ct. 7 (1999)

FACTS: In response to an emergency telephone call, officers 

went to a state park where they found the defendant sitting 

outside a cabin with apparent injuries. The officers went into 

the cabin and found the body of a woman with fatal head 

wounds. Some officers took the defendant to a hospital while 

other officers closed off the area and searched the cabin and the 

area around it. The officers spent more than 16 hours inside the 

cabin, took photographs, collected evidence, and searched 

through the contents of the cabin. During the search, the 

officers found a briefcase and opened it. The briefcase 

contained evidence that incriminated the victim’s husband, the 

defendant. 

ISSUE: Whether the discovery of a body authorized the 

officers to engage in the warrantless search of the 

defendant’s cabin?

HELD: No. After a homicide crime scene is secured for 

investigation, the officers are not entitled to make a 

warrantless search of anything within the crime 

scene area.

DISCUSSION: The Court held that after a homicide crime 

scene is secured for investigation, the officers may not make a 

warrantless search of the crime scene area. The Court 

reaffirmed its long held position that there is no such “homicide 

crime scene” exception. In Mincey v. Arizona, the Court noted 

that officers may make warrantless entries into premises if they 

reasonably believe a person is in need of immediate aid and 

may make prompt warrantless searches of a homicide scene for 

possible other victims or a killer on the premises. However, the 

Court explicitly rejected any general “murder scene,” “homicide 

scene,” or “crime scene” exception to the Fourth Amendment’s 

warrant requirement. The officers would have been entitled to 

remove the victims for medical attention, secure the premises, 

and then obtain a warrant to conduct a search.

Fourth Amendment 189


Brigham City v. Stuart

 547 U.S. 398, 126 S. Ct. 1943 (2006)

FACTS: Officers responded to a complaint regarding a loud 

party at a residence. At the scene, they heard shouting from 

inside and observed juveniles drinking alcohol in the backyard. 

The officers went into the backyard and observed a physical 

disturbance occurring in the kitchen of the home. A juvenile 

suspect punched an adult victim in the face. An officer opened 

the screen door to the kitchen and announced his presence, 

though nobody noticed. The officer entered the kitchen and 

again stated his presence, at which time the altercation ceased. 

The officers arrested several adults for contributing to the 

delinquency of a minor, disorderly conduct, and intoxication.

ISSUE: Whether the officers may gain access to the 

premises under the emergency scene exception if 

their subjective intent was to enter for the purposes 

of effecting an arrest?

HELD: Yes. The officers’ subjective intent for entering the 

premises is irrelevant.

DISCUSSION: It is a “basic principle of Fourth Amendment 

law that searches and seizures inside a home without a warrant 

are presumptively unreasonable.” However, this rule is subject 

to a set of narrowly defined exceptions. “One exigency obviating 

the requirement of a warrant is the need to assist persons who 

are seriously injured or threatened with such injury.” The 

Court, therefore, held that “law enforcement officers may enter 

a home without a warrant to render emergency assistance to an 

injured occupant or to protect an occupant from imminent 

injury.” The officers’ intent in obtaining access to the premises 

is irrelevant in determining the reasonableness of the entry. “It 

therefore does not matter here--even if their subjective motives 

could be so neatly unraveled--whether the officers entered the 

kitchen to arrest respondents and gather evidence against them 

or to assist the injured and prevent further violence.” The 

190 Fourth Amendment
Court stated that “[T[he role of a peace officer includes 

preventing violence and restoring order, not simply rendering 

first aid to casualties...”



Michigan v. Fisher

 558 U.S. 45, 130 S. Ct. 546 (2009)

FACTS: Officers responded to a disturbance complaint. 

One officer testified that, “as he and his partner approached the 

area, a couple directed them to a residence where a man was 

‘going crazy.’” Upon their arrival, the officers found a truck in 

the driveway with its front smashed, damaged fence posts, and 

three broken house windows. The officers also noticed blood on 

the hood of the truck, on clothes inside of it, and on one of the 

doors to the house. The officers saw the defendant inside the 

house, screaming and throwing things. The officers knocked, 

but the defendant refused to answer. They could see that he 

had a cut on his hand, and they asked him whether he needed 

medical attention. The defendant demanded that the officers go 

to get a search warrant. One of the officers then pushed the 

front door partway open and entered the house. He saw the 

defendant pointing a rifle at him and he retreated. Eventually, 

the defendant was arrested and charged with threatening the 

officer.

ISSUE: Whether the officer’s observations of the defendant 

with the rifle were made in violation of the Fourth 

Amendment?

HELD: No. The officer was entitled to enter the home 

under the “emergency aid exception” to the Fourth 

Amendment’s warrant requirement.

DISCUSSION: The Supreme Court affirmed the principle in 

Brigham City v. Stuart, in that an officer may enter a premises 

to render assistance to a person that is seriously injured or 

threatened with such injury. The Court stated “[T]his 

‘emergency aid exception’ does not depend on the officers’ 

Fourth Amendment 191
subjective intent or the seriousness of any crime they are 

investigating when the emergency arises. It requires only ‘an 

objectively reasonable basis for believing,’ that ‘a person within 

[the house] is in need of immediate aid,’ [quoting Brigham City 

and Mincey v. Arizona].”



Ryburn v. Huff

 565 U.S. ___, 132 S. Ct. 987 (2012)

FACTS: Officers received a report there was a rumor 

circulating that a particular student had threatened to “shoot 

up” his school. The officers went to the school and discovered 

the student had been absent the last two days and had been a 

bullying victim. The officers went to the student’s home, 

knocked on the door several times, but received no response. 

The officers then made phone calls to the home, but no one 

answered. Eventually, the student’s mother answered her cell 

phone and told the officers that she was inside the home with 

her child. When the officer asked to speak to her and the child, 

the mother hung up. Moments later, she and her child came 

out of the house and stood on the front steps. The officers told

the mother why they were there and requested to go inside the 

house to discuss the matter. When the mother refused, one of 

the officers asked if there were any guns in the house. Instead 

of answering the question, the mother turned around and ran 

into the house. The officers followed the mother inside the 

house. After discussing the matter with her, the officers 

discounted the rumor concerning her child “shooting up” the 

school and left the house. The mother sued the officers, 

claiming they violated the Fourth Amendment by entering her 

house without consent, a warrant or an exigency.

ISSUE: Whether the officers were reasonable in making an 

entry into the home?

HELD: Yes. Several articulable factors indicated that the 

officers should have been concerned for their safety 

as well as other persons.

192 Fourth Amendment
DISCUSSION: Courts take special caution when officer 

safety requires prompt entry into a home; however, the court 

added, “No decision of this Court has found a Fourth 

Amendment violation on facts even roughly comparable to those 

present in this case.” Here, the officers could articulate several 

factors that could reasonably lead them to believe there was an 

imminent threat of violence: the unusual behavior of the mother

in not answering the door or the telephone; the mother did not 

inquire about the reason for the officers’ visit; she hung up the 

telephone on the officer; she refused to tell the officers whether 

there were guns in the house; she ran back into the house while 

being questioned; her son was the victim of bullying; he had 

been absent from school for two days; and he supposedly 

threatened to “shoot up” the school. Based on these facts, the 

Court found the officers’ warrantless entry into the home was

reasonable.



VII. SEARCH WARRANT EXCEPTIONS - P.C. NOT NEEDED

A. FRISKS

Arizona v. Johnson

555 U.S. 323, 129 S. Ct. 781 (2009)

FACTS: Officers of a gang task force stopped a car for a 

suspended registration. While one officer was obtaining 

information from the driver, the other two officers each spoke 

with one of the two passengers. The rear-seat passenger looked 

back and kept his eyes on the officers as they approached. He 

was wearing clothing consistent with Crips gang membership, 

and he was from a town known to be home to a Crips gang. He 

told police that he had served time in prison for burglary and 

had been out for a year. He had a scanner in his pocket. 

Scanners are not normally carried in that way except to evade 

the police. An officer asked him to step from the car to speak 

with him away from the other passenger in hopes of gaining 

gang-related intelligence. She frisked the defendant and felt the 

butt of a gun near the defendant’s waist.

Fourth Amendment 193
ISSUE: Whether officers can frisk a passenger in a car 

stopped for a traffic violation if that passenger is 

suspected of being armed and dangerous?

HELD: Yes. Officers may frisk a passenger, provided they 

have a reasonable suspicion that the passenger is 

armed and dangerous.

DISCUSSION: During a traffic stop, passengers, like the 

driver, are seized because a reasonable passenger would not feel 

free to leave until the traffic stop is concluded. Given concerns

for officer safety, officers may order passengers to step from a 

car during a traffic stop, and they may frisk any passenger 

reasonably believed to be armed and dangerous. Government 

inquiries into anything other than the reason for the stop do not 

convert the stop into an unlawful seizure so long as they do not 

measurably extend the duration of the stop.



Michigan v. Long

 463 U.S. 1032, 103 S. Ct. 3469 (1983)

FACTS: Officers observed a vehicle driving erratically and 

speeding. They watched as the vehicle swerved off the road into 

a ditch. As the officers stopped to investigate, the defendant got 

out, leaving the driver’s side door open, and met the officers 

near the rear of the vehicle. The officers noted that the 

defendant appeared to be under the influence of either alcohol 

or drugs. The defendant initially failed to provide his license, 

although he complied following a second request. When asked 

to produce the vehicle’s registration, the defendant again failed 

to comply and, after a second request, began walking towards 

the open door of the vehicle. Both officers followed him and 

observed a large knife on the floorboard of the vehicle. Stopping 

the defendant, the officers conducted a frisk of his person, 

although no weapons were recovered. One of the officers shined 

his flashlight into the vehicle’s passenger compartment to 

search for other weapons. When the officer noticed something 

sticking out from under the armrest, he lifted it and found an 

194 Fourth Amendment
open pouch containing what appeared to be marijuana inside. 

The defendant was arrested for possession of marijuana.

ISSUE: Whether officers can conduct a frisk of the 

passenger compartment of a vehicle following a 

lawful investigatory stop of the vehicle?

HELD: Yes. Officers may frisk the passenger compartment 

of a vehicle, limited to those areas in which a 

weapon may be found, if the officers reasonably 

believe that the suspect is dangerous and may gain 

immediate control of weapons.

DISCUSSION: The Court’s decision in Terry v. Ohio does not 

restrict frisks to the body of the suspect. “Past cases indicate 

that (1) the protection of police officers, as well as others, may 

justify protective searches when police have a reasonable belief 

that the suspect poses a danger; (2) roadside encounters 

between police and suspects are especially hazardous; and (3) 

danger may arise from the possible presence of weapons in the 

area surrounding a suspect.” The frisk of a passenger 

compartment of an automobile, restricted to those areas in 

which a weapon may be placed or hidden, is reasonable if the 

officers can articulate a reasonable belief that the suspect is 

armed and dangerous.



Minnesota v. Dickerson

 508 U.S. 366, 113 S. Ct. 2130 (1993)

FACTS: Officers developed reasonable suspicion the 

defendant was recently involved in a drug transaction. They 

frisked him but did not find any weapons. However, the officer 

conducting the frisk felt a small lump in the defendant’s jacket 

pocket. Upon examining the lump further with his fingers, the 

officer believed the lump to be crack cocaine. The officer then

reached into the defendant’s pocket and retrieved a small 

amount of cocaine.

Fourth Amendment 195
ISSUE: Whether the intrusion into the defendant’s pocket 

was reasonable?

HELD: No. Officers may seize contraband detected 

through the sense of touch during frisks only if the 

evidence is immediately apparent to be such at the 

moment it was touched.

DISCUSSION: In Terry v. Ohio the Supreme Court permitted 

officers to conduct brief stops of persons whose suspicious 

conduct leads an officer to conclude that criminal activity may 

be afoot. The Supreme Court authorized a frisk for weapons if 

the officer reasonably suspects that the person may be armed 

and presently dangerous. Frisks are not meant to discover 

evidence of crime, but must be strictly limited to that which is 

necessary for the discovery of weapons. If the protective search 

intrudes beyond what is necessary to learn if the suspect is 

armed, it is no longer valid under Terry and its fruits will be 

suppressed.

However, once an officer has lawfully frisked a suspect, and the 

officer 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 is justified.

Application of these principles to this case does not 

demonstrate the officer conducting the frisk had probable cause 

(immediately apparent) to believe the lump in the defendant’s 

jacket was contraband. The officer decided the lump was

contraband only after he squeezed, slid, and otherwise 

continued to manipulate the pocket’s contents. While Terry

entitled the officer to place his hands on the defendant’s jacket 

and to initially feel the lump in the pocket, the officer’s

continued manipulation of the pocket after he concluded it did 

not contain a weapon was unrelated to the Terry frisk. 

Therefore, the officer’s intrusion into the defendant’s jacket was 

unreasonable.

196 Fourth Amendment


B. SEARCHES INCIDENT TO ARREST

United States v. Chadwick

 433 U.S. 1, 97 S. Ct. 2476 (1977)

FACTS: Officers developed probable cause the defendant 

was transporting a controlled substance in a footlocker. They 

placed him under arrest and seized the footlocker. The 

footlocker remained under the exclusive control of the officers at 

all times. The agents did not have any reason to believe that 

the footlocker contained explosives or other inherently 

dangerous items or that it contained evidence that would lose 

its evidentiary value unless the footlocker was opened 

immediately. An hour and a half after the men were arrested, 

the officers opened the footlocker without a search warrant or 

consent. Large amounts of marijuana were found in the 

footlocker.

 

ISSUE: Whether a search incident to an arrest is 

reasonable significantly after the arrest?

HELD: No. Searches incident to arrest must occur at 

about the same time as the arrest.

DISCUSSION: The search cannot be justified as a search 

incident to an arrest if the search is remote in time or place 

from the arrest. When an arrest is made, it is reasonable for 

the government to conduct a prompt, warrantless search of the 

arrestee’s person and the area in which the arrestee might gain 

possession of a weapon or destructible evidence. However, 

warrantless searches of a footlocker or luggage seized at the 

time of an arrest cannot be justified as incident to that arrest if 

the search is remote in either time or place from that arrest or 

no exigency exists. Here, there were no exigent circumstances.



Fourth Amendment 197
1. Premises

Go-Bart Importing Co. v. United States

 282 U.S. 344, 51 S. Ct. 153 (1931)

FACTS: Government agents obtained an arrest warrant for 

the defendants. In serving the warrant, the agents entered the 

defendants’ business premises, falsely claiming they possessed 

a search warrant. The agents then secured a series of papers 

through these searches located throughout the business.

ISSUE: Whether the government is reasonable in 

conducting a search of the premises in which a 

lawful arrest has occurred?

HELD: No. The Court does not recognize a general right of 

the government to search the premise in which an 

arrest takes place.

DISCUSSION: The Court found the government’s search 

ancillary to the arrests to be “a lawless invasion of the premises 

and a general exploratory search in the hope that evidence of 

crime might be found.” This illegal search was not to be 

confused with one in which officers secured evidence that was 

“visible and accessible and in the offender’ immediate custody. 

There was no threat of force or general search or rummaging of 

the place.”



Chimel v. California

 395 U.S. 752, 89 S. Ct. 2034 (1969)

FACTS: Three officers arrived at the defendant’s home with 

an arrest warrant. They knocked on the door, identified 

themselves to the defendant’s wife, and asked if they could 

come inside. She let the officers in the house where they waited 

for the defendant to return home from work. When the 

defendant entered the house, an officer handed him the arrest 

warrant. One of the officers asked the defendant if he could 

198 Fourth Amendment
look around. The defendant said no, but was advised that on 

the basis of the lawful arrest the officers would nonetheless 

conduct a search. 

The officers, accompanied by the defendant’s wife, searched the 

entire house. In the master bedroom, the officers directed the 

wife to open drawers and to physically move their contents from 

side to side so that they might view any items that would have 

come from the crime. The officers seized numerous items that 

constituted evidence of the crime.

ISSUE: Whether the warrantless search of the defendant’s 

entire house can be conducted incident to his 

arrest?

HELD: No. The warrantless search of the defendant’s 

entire house, incident to his arrest, was 

unreasonable as it extended beyond the defendant’s 

person and the area under his immediate control.

DISCUSSION: When an arrest is made, it is reasonable for 

an officer to search the person arrested to remove any weapons 

that the arrestee might use to resist arrest. It is also reasonable 

for an officer to search and seize any evidence on the arrestee’s 

person to prevent its concealment or destruction and for the 

means of committing an escape.

The area that an officer may search is that area within an 

arrestee’s immediate control. That is the area that the person 

might gain possession of a weapon, means of escape, or 

destructible evidence. There is, however, no justification for 

routinely searching any room other than that in which an arrest 

occurs, or for that matter, for searching through desk drawers 

or other closed areas in that room itself. Such searches, in the 

absence of well-recognized exceptions, may be made only under 

the authority of a search warrant. 

The search in this case went beyond the defendant’s person and 

the area that he might have obtained a weapon, a means of 

escape, or something that could have been used as evidence 

Fourth Amendment 199
against him. There was no constitutional justification, in the 

absence of a search warrant, for extending the search beyond 

the area from which the defendant was arrested. 



Agnello v. United States

 269 U.S. 20, 46 S. Ct. 4 (1925)

FACTS: The defendant was arrested after retrieving 

controlled substances from his home and selling them to an 

agent of the government. The defendant was transported to the 

police station and several officers entered his home. They 

searched for, and found, other controlled substances.

ISSUE: Whether the defendant’s home could be entered 

and searched incident to his arrest?

HELD: No. The officers exceeded the lawful scope of a 

search incident to arrest.

DISCUSSION: The lawful scope of a search incident to an 

arrest is limited to the body and “the place where the arrest is 

made in order to find and seize things connected with the crime 

as its fruits or as the means by which it was committed, as well 

as weapons and other things to effect an escape from custody.” 

However, the Court refused to extend this search to other areas. 

The Court stated “[T]he search of a private dwelling without a 

warrant is in itself unreasonable and abhorrent to our laws.” 

The existence of probable cause alone does not permit the 

search of a home. The Court held “[B]elief, however well 

founded, that an article sought is concealed in a dwelling house 

furnishes no justification for a search of that place without a 

warrant. And such searches are held unlawful notwithstanding 

facts unquestionably showing probable cause.”



200 Fourth Amendment
Shipley v. California

 395 U.S. 818, 89 S. Ct. 2053 (1969)

FACTS: Officers learned that the defendant was involved in 

a robbery and went to his residence. The defendant was not at 

home but his wife allowed the officers to enter the home and 

examine her possessions. They found some rings taken in the 

theft. The officers then “staked out” the house. When the 

defendant arrived he parked 15 or 20 feet from the house. The 

officers arrested him as he got out of his car. They searched the 

defendant’s car, and without permission or a warrant, again 

searched the house. They found a jewelry case stolen in the 

robbery, which was admitted into evidence at the defendant’s 

trial.

ISSUE: Whether the second search of the defendant’s 

house was authorized as a search incident to 

arrest?

HELD: No. The public arrest of the defendant does not 

justify a search of his home.

DISCUSSION: The Court has consistently held that a search 

“can be incident to an arrest only if it is substantially 

contemporaneous with the arrest and is confined to the 

immediate vicinity of the arrest.” Stoner v. California (1964). 

The Court has never construed the Fourth Amendment to allow 

the government, in the absence of an exigency, to arrest a 

person outside his home and then take him inside for the 

purpose of conducting a warrantless search. On the contrary, 

“it has always been assumed that one’s house cannot lawfully 

be searched without a search warrant, except as an incident to 

a lawful arrest therein.” Agnello v. United States.



Fourth Amendment 201
Vale v. Louisiana

 399 U.S. 30, 90 S. Ct. 1969 (1970)

FACTS: Officers, armed with an arrest warrant for the 

defendant, were watching the house where he resided. They 

observed what they suspected was a narcotics exchange 

between a known addict and the defendant outside the house. 

They arrested the defendant at the front steps and announced 

that they would search the house. Their search of the thenunoccupied house disclosed narcotics in a bedroom.

ISSUE: Whether the house could be searched incident to 

the defendant’s arrest?

HELD: No. The arrest of the defendant does not 

automatically justify a full search of his home.

DISCUSSION: The Court stated that even if holding that the 

warrantless search of a house can be justified as incident to a 

lawful arrest, the search must be confined to the area within 

the arrestee’s reach (the area from within which he might gain 

possession of a weapon or destructible evidence). A search may 

be incident to an arrest only if it is substantially 

contemporaneous with the arrest and is confined to the 

immediate vicinity of the arrest. If a search of a house is to be 

upheld as incident to an arrest, that arrest must take place 

inside the house, not somewhere outside. Belief, however well 

founded, that evidence sought is concealed in a dwelling 

furnishes no justification for a search of that place without a 

warrant. A warrantless search of a dwelling is constitutionally 

valid only in “a few specifically established and well-delineated 

exceptions,” none of which the government had shown here.



202 Fourth Amendment
2. Persons

United States v. Robinson

 414 U.S. 218, 94 S. Ct. 467 (1973)

FACTS: An officer learned that the defendant’s license had 

been revoked. Four days later, he observed the defendant 

driving an automobile. He stopped the car and informed the 

defendant that he was under arrest for driving with a revoked 

license. The officer conducted a search incident to arrest. 

During the search, he felt an object in the defendant’s coat but 

could not determine what it was. The officer reached into the 

pocket and pulled out the object, a crumpled up cigarette 

package. He opened the package and found capsules he 

believed to be heroin.

ISSUE: Whether a full body search of a suspect for items 

other than evidence of the crime for which a 

suspect is arrested is within the scope of the search 

incident to an arrest?

HELD: Yes. During a lawful arrest, a full search of the 

person may be made by virtue of the lawful arrest. 

DISCUSSION: A lawful arrest establishes an authority to 

search. It is immaterial that the officer did not fear or suspect 

the defendant was armed. Having discovered the crumpled 

package of cigarettes, the officer was entitled to search it as well 

as to seize it when the search revealed the heroin capsules.



United States v. Edwards

 415 U.S. 800, 94 S. Ct. 1234 (1974)

FACTS: Shortly after 11 p.m. the defendant was lawfully 

arrested and placed in jail for attempting to break into a post 

office. The attempted entry into the post office had been made 

through a window, leaving paint chips on the windowsill and 

wire mesh screen. Because the defendant was arrested late at 

Fourth Amendment 203
night, no clothing was available to replace what he was wearing. 

The following morning, trousers and a shirt were purchased for 

him to replace the clothing he had been wearing since his 

arrest. The clothing removed from him contained paint chips 

matching samples that had been taken from the post office 

window. The clothing was seized and held as evidence.

ISSUE: Whether the clothing seized from the defendant on 

the morning following his arrest was obtained 

lawfully as a search incident to his arrest?

HELD: Yes. The delay in seizing the defendant’s clothes 

under the circumstances was reasonable.

DISCUSSION: One of the exceptions to the warrant 

requirement of the Fourth Amendment is the warrantless 

search incident to a lawful arrest. There is no doubt “that 

clothing or other belongings may be seized upon arrival of the 

accused at the place of detention and later subjected to 

laboratory analysis or that the test results are admissible at 

trial. In taking the defendant’s clothing, the police did no more 

than take from him the effects in his immediate possession that 

constituted evidence of a crime.” Such action is incidental to 

custodial arrest. A reasonable delay [the defendant did not 

have replacement clothing] in conducting the search does not 

change the fact that the defendant was no more imposed upon 

than he could have been at the time and place of the arrest. 

“When it became apparent that the articles of clothing were 

evidence of the crime for which the defendant was being held, 

the police were entitled to take, examine, and preserve them for 

use as evidence, just as they are normally permitted to seize 

evidence of crime when it is lawfully encountered.”



Virginia v. Moore

 553 U.S. 164, 128 S. Ct. 1598 (2008)

FACTS: Two officers confirmed information that the 

defendant was driving with a suspended license. They arrested 

204 Fourth Amendment
him for the misdemeanor of driving on a suspended license, 

which is punishable under state law by a year in jail. Under 

state law, the officers should have issued the defendant a 

summons instead of arresting him. The officers searched the 

defendant and found 16 grams of crack cocaine and $516 in 

cash.

ISSUE: Whether an officer can conduct a search incident to 

an arrest after making an arrest based on probable 

cause but prohibited by state law?

HELD: Yes. The Fourth Amendment’s edict is met if the 

office based the arrest on probable cause. If 

probable cause exists to conduct an arrest, the 

officer is entitled to conduct a search incident to 

that arrest.

DISCUSSION: The Court analyzes search or seizure in light 

of traditional standards of reasonableness “by assessing, on the 

one hand, the degree to which it intrudes upon an individual's 

privacy and, on the other, the degree to which it is needed for 

the promotion of legitimate governmental interests.” Wyoming 

v. Houghton. 

“In a long line of cases, we have said that when an officer has 

probable cause to believe a person committed even a minor 

crime in his presence, the balancing of private and public 

interests is not in doubt. The arrest is constitutionally 

reasonable.”

States are free to provide greater privacy protection through 

statute than that required by the Fourth Amendment. However, 

failure on behalf of the officers to comply with that statute does 

not render their actions unreasonable under the Fourth 

Amendment. “’[W]hether or not a search is reasonable within 

the meaning of the Fourth Amendment,’ we said, has never 

‘depend[ed] on the law of the particular State in which the 

search occurs’” quoting California v. Greenwood (1988).



Fourth Amendment 205
Florence v. County of Burlington

 566 U.S. ___, 132 S. Ct. 1510 (2012)

FACTS: The defendant was arrested based on an 

outstanding warrant that should have been removed from a 

computer database. The officer took the defendant to a local 

detention center, where he was required to shower with a 

delousing agent, was visually examined for scars, marks, gang 

tattoos, and contraband, he was instructed to open his mouth, 

lift his tongue, hold out his arms, turn around, and lift his 

genitals. The defendant shared a cell with at least one other 

person and interacted with other inmates following his 

admission. Six days later the defendant was moved to another 

detention center, in which he had to undergo a similar process. 

These examinations took place regardless of the “circumstances 

of the arrest, the suspected offense, or the detainee's behavior, 

demeanor, or criminal history.”

ISSUE: Whether the government could conduct close visual 

inspections only if it had reason to suspect a 

particular inmate of concealing a weapon, drugs, or 

other contraband of persons arrested for minor 

offenses?

HELD: No. Due to the nature of and uncertainties in 

detention facilities, it is reasonable for the 

government to conduct close visual inspections of 

all incoming persons.

DISCUSSION: “The difficulties of operating a detention 

center must not be underestimated by the courts.” The Court 

found that “[I]t is not surprising that correctional officials have 

sought to perform thorough searches at intake for disease, gang 

affiliation, and contraband. Jails are often crowded, 

unsanitary, and dangerous places. There is a substantial 

interest in preventing any new inmate, either of his own will or 

as a result of coercion, from putting all who live or work at 

these institutions at even greater risk when he is admitted to 

the general population.” Therefore, it is reasonable for the 

government to design “procedures...to uncover contraband that 

206 Fourth Amendment
can go undetected by a patdown, metal detector, and other less 

invasive searches.”



Maryland v. King

 569 U.S. ___, 133 S. Ct. 1958 (2013)

FACTS: The defendant was arrested for first and seconddegree assault. At the jail, pursuant to state statute, officers 

used a cheek swab to collect a DNA sample from inside the 

defendant’s mouth. This evidence caused the defendant to be 

identified as the perpetrator in an unsolved sexual assault.

ISSUE: Whether the Fourth Amendment prohibits the 

collection of a DNA sample from persons arrested, 

but not yet convicted, on felony charges?

HELD: No. When the defendant’s arrest upon probable

cause for a serious offense results in detention, the 

government is reasonable in conducting a DNA 

swabbing is consistent with traditional 

identification procedures under the Fourth 

Amendment.

DISCUSSION: The Court held that, though this was the first 

case it examined the DNA swab procedure, “the framework for 

deciding the issue is well established.” “In some circumstances, 

such as ‘[w]hen faced with special law enforcement needs, 

diminished expectations of privacy, minimal intrusions, or the 

like, the Court has found that certain general, or individual, 

circumstances may render a warrantless search or seizure 

reasonable.’” Citing Illinois v. McArthur.

The Court found that such a reasonable search occurred in this 

case, as the government has long been empowered to collect 

identifying information from lawfully arrested persons. “A DNA 

profile is useful to the police because it gives them a form of 

identification to search the records already in their valid 

possession. In this respect the use of DNA for identification is 

Fourth Amendment 207
no different than matching an arrestee’s face to a wanted poster 

of a previously unidentified suspect; or matching tattoos to 

known gang symbols to reveal a criminal affiliation; or matching

the arrestee’s fingerprints to those recovered from a crime 

scene.”



3. Cell Phones

Riley v. California (consolidated with U.S. v. Wurie)

 573 U.S. ___, 134 S. Ct. 2473 (2014)

FACTS: Officers arrested Riley and searched the cell phone he 

was carrying incident to his arrest. The officers discovered 

photographs and videos on Riley’s cell phone that were 

admitted into evidence against him at trial. 

Officers arrested Wurie for distribution of crack cocaine and 

seized two cell phones from him. Incident to Wurie’s arrest, 

officers searched the call log on one of the cell phones and 

determined the phone number labeled “my house” was 

associated with a nearby apartment. Officers went to the 

apartment and saw the name “Wurie” written on the mailbox. 

The officers obtained a warrant, searched the apartment and 

found drugs and firearms. 

ISSUE: Whether police officers may conduct a warrantless 

search of a person’s cell phones incident to arrest. 

HELD: No. The Supreme Court consolidated the cases, 

holding that police officers generally may not search 

digital information on a cell phone seized from an 

individual who has been arrested, without first 

obtaining a warrant. 

DISCUSSION: Previously, the court held officers could conduct 

warrantless searches of arrestees and possessions within the 

arrestees’ control, indident to a custodial arrest. The court 

concluded such searches were reasonable in order to discover 

208 Fourth Amendment
weapons or any evidence on the arrestee’s person so that 

evidence could not be concealed or destroyed. 

The court concluded this rationale does not apply to modern 

cell phones. First, digital data stored on a cell phone cannot be 

used as a weapon to harm an arresting officer or aid an arrestee 

in escaping. The court emphasized that police officers may still 

examine the physical aspects of phone to ensure that it will not 

be used as a weapon. For example, the court noted a police 

officer may examine a cell phone to determine whether there is 

a razor blade hidden between the phone and its case. However, 

once an officer has secured a phone and eliminated any 

potential threats the data on the phone cannot harm anyone. 

Second, the court stated the government provided little evidence 

to believe that loss of evidence from a seized cell phone, by 

remote wiping of the data on the phone, was a common 

occurrence. Even if remote wiping were a concern, the court 

listed two ways remote wiping could be prevented. First, the 

officer could turn the phone off or remove its battery. Second, 

the officer could put the phone inside a device, called a Faraday 

bag, that would isolate the phone from radio waves. The court 

added that Faraday bags are cheap, lightweight, and easy to 

use and a number of law enforcement agencies already 

encourage their use. In addition, the court commented that if a 

police officers are truly confronted with individualized facts 

suggesting that a defendant’s phone will be the target of an 

imminent remote wiping attempt, they may be able to rely on 

exigent circumstances to search that phone immediately.

The court further recognized that cell phones are different from 

other objects that an arrestee might have on his person. Before 

cell phones existed, a search of an arrestee generally 

constituted a small instrusion on the arrestee’s privacy. 

However, modern cell phones are, in essence, mini-computers 

that have immense storage capacity on which many people keep 

a digital record of nearly aspect of their lives. Consequenly, the 

warrantless search of a cell phone consitutes a significant 

intrusion upon a person’s privacy. If police officers wish to 

Fourth Amendment 209
search a cell phone incident to arrest, they need to obtain a 

warrant.



4. Vehicles

Arizona v. Gant

 556 U.S. 332, 129 S. Ct 1710 (2009)

FACTS: The defendant was arrested for driving with a 

suspended license. He was handcuffed and locked in the back 

of a patrol car. There were five officers at the scene and two 

other suspects who had already been arrested, handcuffed, and

locked in patrol cars. The officers searched the defendant’s 

vehicle incident to his arrest and found a gun and cocaine in 

the pocket of a jacket in the back seat.

ISSUE: Whether the government may automatically search 

a vehicle incident to arrest when the arrestee has 

been secured and no longer has access to weapons 

or evidence?

HELD: No. The justifications for searching a vehicle 

incident to arrest are (1) officer safety, and (2) 

evidence preservation. Once an arrestee is secured 

and can no longer access his vehicle, there is no 

longer any risk that he will access weapons or 

evidence contained therein. 

DISCUSSION: Officer safety and evidence preservation have 

been the long-standing rationales behind the search-incidentto-arrest exception to the Fourth Amendment warrant 

requirement. Although it had become commonplace for officers

to search a vehicle incident to the arrest of one of its occupants 

regardless of whether the suspect had been secured, the 

Supreme Court in this case held that such searches are 

unconstitutional when the suspect can no longer access the 

vehicle. If the suspect is secured and he can no longer access 

weapons or evidence contained in the vehicle then the 

210 Fourth Amendment
rationales for the exception do not apply. The Court further 

clarified that circumstances unique to the vehicle context justify 

a search incident to arrest when it is “reasonable to believe” 

that evidence of the crime of arrest may be found within. When 

the defendant is secured in a locked police car, and the crime of

arrest is driving on a suspended license for which no evidence 

could reasonably found in the vehicle, none of the exceptions 

justify a search incident to arrest. However, the government 

may search a vehicle incident to arrest after the arrestee has 

been secured when it is reasonable to believe that evidence 

related to the crime of arrest may be found within.



New York v. Belton

 453 U.S. 454, 101 S. Ct. 2860 (1981)

FACTS: An officer stopped a car for speeding in which the 

defendant and four other men were riding. None of the men 

owned the car or were related to its owner. The officer smelled 

marijuana and saw an envelope on the floor of the car that he 

suspected contained marijuana. The officer picked up the 

envelope and found marijuana inside. He ordered the men out 

of the car and arrested them. He searched the men and the 

passenger compartment of the car. On the back seat of the car 

the officer found a black jacket that belonged to the defendant. 

He unzipped one of the pockets of the jacket and discovered 

cocaine.

ISSUE: Whether the scope of a search incident to an arrest 

includes the containers located in the passenger 

compartment of the automobile in which the 

arrestee was riding?

HELD: Yes. Once a lawful arrest of an occupant of an 

automobile is made, and the officer reasonably 

believes he may find more evidence of the crime in 

the vehicle, the officer may examine the contents of 

any containers found within the passenger 

compartment.

Fourth Amendment 211
DISCUSSION: When an officer makes a lawful arrest, the 

officer may, incident to that arrest, search the arrestee and the 

immediate surrounding area. Such searches are valid because 

of the need to remove any weapons the arrestee might access to 

resist arrest and to prevent the destruction or concealment of 

evidence. However, the scope of the search may not stray 

beyond the area within the immediate control of the arrestee.

Articles inside the relatively narrow area of the automobile 

passenger compartment are generally within the area into 

which an arrestee might reach in order to grab a weapon or 

evidentiary item. Therefore, an officer has made a lawful arrest 

of the occupant of an automobile, the officer may, incident to 

that arrest, search the passenger compartment of that 

automobile if the arrestee has access to its contents.

It follows that an officer may examine the contents of any 

containers found within the passenger compartment. If the 

passenger compartment is within the reach of the arrestee, so 

are containers within it. Such a container may be searched 

whether it is open or closed. The justification for the search is 

not that the arrestee has no privacy interest in the container. It 

is the lawful arrest that justifies the infringement of any privacy 

interest the arrestee may have.

In Arizona v. Gant, the U.S. Supreme Court held that the safety 

and evidentiary justifications underlying Chimel’s (1969) 

reaching-distance rule limit the holding in Belton to 

circumstances when a vehicle search incident to arrest is 

justified by those concerns. Accordingly, the majority in Gant

clarified that Belton does not authorize a vehicle search incident 

to a recent occupant’s arrest after the arrestee has been 

secured and cannot access the interior of the vehicle, unless, 

due to circumstances unique to the automobile context, it is 

reasonable to believe that evidence of the offense of arrest might 

be found in the vehicle.



212 Fourth Amendment
Preston v. United States

 376 U.S. 364, 84 S. Ct. 881 (1964)

FACTS: The defendant, along with two others, was arrested 

while sitting in a parked vehicle. He was searched for weapons 

and taken to the police station. The vehicle, which was not 

searched at the time of the arrest, was towed to a garage. 

Shortly after the defendant had been booked at the police 

station, officers went to the garage, without a warrant, to search 

the car. They found evidence indicating that the defendant and 

his companions were preparing for a robbery. All three 

individuals were convicted of conspiracy to rob a bank, largely 

on evidence obtained from the search of the vehicle.

ISSUE: Whether the search of the vehicle at the garage was 

reasonable under the Fourth Amendment as a 

“search incident to arrest?”

HELD: No. The evidence obtained from the car was 

inadmissible because the warrantless search was 

too remote in time or place to be treated as 

incidental to the arrest.

DISCUSSION: The Fourth Amendment permits searches 

that are reasonable. “When a person is lawfully arrested, the 

police have the right, without a warrant, to make a 

contemporaneous search of the person of the accused for 

weapons or for the fruits of or implements used to commit the 

crime. This rule is justified by the need to seize weapons and 

other things that might be used to effect an arrest, as well as by 

the need to prevent the destruction of evidence of the crime. 

However, these justifications are absent where a search is 

remote in time or place from the arrest. Once a defendant is 

under arrest and in custody, then a search made at another 

place, without a warrant, is simply not incident to the arrest 

(underline added).”



Fourth Amendment 213
Thornton v. United States

 541 U.S. 615, 124 S. Ct. 2137 (2004)

FACTS: Before an officer had the opportunity to stop the 

defendant for a license plate violation, the defendant pulled into 

a parking lot, parked, and got out of his vehicle. He was 

walking away from his vehicle as the officer pulled in behind 

him. The officer stopped him and asked for his driver’s license. 

During this encounter, the officer obtained the defendant’s 

consent to pat him down for weapons and narcotics. He found 

a controlled substance and placed the defendant, a convicted 

felon, under arrest. The officer then opened the defendant’s 

vehicle and searched. There he found a weapon.

ISSUE: Whether the officer can search the passenger’s 

compartment of a vehicle the arrestee has walked 

away from?

HELD: Yes. The law enforcement officer has the same 

safety concerns about a suspect either in or near a 

motor vehicle.

DISCUSSION: The Court held that the arrest of a defendant 

who is near a vehicle presents the same safety and destruction 

of evidence concerns as an arrest of a defendant who is inside a 

vehicle. The stresses associated with an arrest, the Court 

determined, are not lessened by the fact that the arrestee exited 

the vehicle before an officer initiated the contact. 



Knowles v. Iowa

 525 U.S. 113, 119 S. Ct. 484 (1998)

FACTS: The defendant was lawfully stopped and issued a 

citation for speeding. Under Iowa law, the officer could have 

either arrested him or followed the more traditional route of 

issuing a traffic citation. Another section of Iowa law stated 

that the issuance of a citation in lieu of an arrest does not 

defeat the officer’s authority to conduct an otherwise lawful 

214 Fourth Amendment
search as if the arrest had occurred. The Iowa Supreme Court 

interpreted this statute as providing law enforcement officers 

the ability to search any automobile that has been lawfully 

stopped for a traffic violation. The search conducted pursuant 

to the defendant’s traffic stop yielded contraband.

ISSUE: Whether officers are justified in conducting 

searches of automobiles based solely on the fact 

that it has been stopped for a traffic violation.

HELD: No. Law enforcement officers are not justified in 

conducting searches incident to traffic citations.

DISCUSSION: The Supreme Court called the Iowa Supreme 

Court’s interpretation of its statute a “search incident to 

citation,” a derivative of a search incident to arrest. The 

Supreme Court stated that a search incident to arrest was a 

valid exception to the Fourth Amendment’s warrant 

requirement because of the need to disarm the suspect and to 

preserve evidence for later use at trial.

The Court dismissed the consideration of officer’s safety in 

allowing a search incident to citation because it did not believe 

the issuance of a citation is as dangerous as an arrest. The 

officer will not spend as much time with the defendant while 

issuing a citation, stress levels are not as great and the outcome 

is not as uncertain as during an arrest. The Supreme Court 

also held that the second rationale for a search incident to 

arrest, to secure evidence for later use, is not logical because it 

is unlikely the officer will find additional evidence of the traffic 

violation by searching the automobile.



Fourth Amendment 215
C. CONSENT

United States v. Mendenhall

 446 U.S. 544, 100 S. Ct. 1870 (1980)

FACTS: A woman arrived at the Detroit airport from Los 

Angeles. As the woman disembarked, she was observed by two 

DEA agents to fit a “drug courier profile.” The agents 

approached the woman, identified themselves as federal agents, 

and asked to see her identification and airline ticket. The 

woman’s driver’s license identified her as Sylvia Mendenhall. 

Her airline ticket, however, was issued to “Annette Ford.” (It 

was not illegal to travel under an assumed name during this 

time.) The woman explained that she just felt like using that 

name and that she had been in California for two days. After 

one agents specifically identified himself as a federal narcotics

agent, the woman became shaken, extremely nervous and had 

difficulty speaking.

After returning her airline ticket and driver’s license, the agent 

asked the woman if she would accompany him to the airport 

DEA office located about fifty feet away. Without a verbal 

response, the woman did so. The agent then asked the woman

if he could search her person and handbag and told her that 

she had the right to decline the search if she so desired. The 

woman responded, “go ahead.” The agent found an airline 

ticket issued to “F. Bush” three days earlier for a flight to Los 

Angeles. The woman acknowledged this was the ticket she used 

for her flight to California. A policewoman, who had been 

summoned, asked the woman to consent to a search of her 

person, and the woman agreed. The policewoman asked the 

woman to disrobe; however the woman said she had to catch 

her plane. The policewoman assured her that if she were not 

carrying narcotics, there would be no problem. The woman 

disrobed without further comment, gave the policewoman two 

small packets, one of which contained heroin.

ISSUE: Whether the defendant voluntarily consented to the 

search? 

216 Fourth Amendment
HELD: Yes. Consent is based on the voluntary actions of 

the consenter.

DISCUSSION: Not every encounter between a law 

enforcement officer and a citizen is an intrusion requiring 

justification. A person is seized only when, by means of 

physical force or a show of authority, his freedom of movement 

is restrained. As long as the person remains free to disregard 

the questions and walk away, there has been no constitutional 

intrusion upon the person’s liberty.

Some examples of circumstances that might indicate a seizure 

are: the threatening presence of several officers, the display of a 

weapon by an officer, some physical touching of a person, or the 

use of language or tone of voice indicating that compliance 

might be compelled. In this case no seizure occurred. The 

events took place in the public concourse; the agents wore no 

uniforms and displayed no weapons; they did not summons the 

defendant to their presence, but instead, approached her and 

identified themselves as federal agents; they requested, but did 

not demand, to see her identification and ticket.

The final question is whether the defendant acted voluntarily. 

The Court considered the facts that she was twenty-two years 

old, had not graduated from high school, was a black female, 

and the officers were white males. While the facts were 

relevant, they were not decisive. The Court found her consent 

to be voluntarily granted.



Schneckloth v. Bustamonte

 412 U.S. 218, 93 S. Ct. 2041 (1973)

FACTS: An officer stopped a car when he observed that its 

license plate light and a headlight were inoperable. Six men, 

including the defendant, were in the car. After the driver failed 

to produce a driver’s license, the officer asked if any of the other 

five men had any identification. One of men produced a license 

and explained that he was the brother of the car’s owner, from 

Fourth Amendment 217
whom the car had been borrowed. After the six men stepped 

out of the car at the officer’s request, and after two more officers 

arrived, the officer who had stopped the car asked the owner’s 

brother if he could search the car. He replied “Sure, go ahead.” 

The owner’s brother helped in the search by opening the trunk 

and the glove compartment. The officers found stolen checks 

under a seat.

ISSUE: Whether the owner’s brother could grant consent to 

the search of the car?

HELD: Yes. The validity of consent to search is determined 

by the totality of the circumstances.

DISCUSSION: For consent to be valid, it must be proven 

from the totality of the circumstances that the consent was 

freely and voluntarily given. Consent cannot result from duress 

or coercion, either expressed or implied. The consenter’s 

ignorance of his right to refuse consent is only one factor to be 

considered in ascertaining the validity of the consent. The 

Fourth Amendment requires that consent to search not be 

coerced, by explicit or implicit means, by implied threat or 

covert force.



Ohio v. Robinette

 519 U.S. 33, 117 S. Ct. 417 (1996)

FACTS: The defendant was lawfully stopped for a speeding 

violation. After the officer gave the defendant a verbal warning, 

the officer asked him if he had any illegal drugs in his car. The 

defendant said no and gave the officer consent to search the 

car. The officer found a controlled substance in a film container 

located inside the automobile.

ISSUE: Whether the officer must inform the detainee that 

he had a right to leave before attempting to obtain 

his voluntary consent to search the automobile?

218 Fourth Amendment
HELD: No. Whether the detainee knew that he had a right 

to leave is only one factor in determining if his 

consent was voluntary.

DISCUSSION: The key to all Fourth Amendment issues is 

whether the officer acted in a reasonable manner. The Court 

stated that this question is usually answered after reviewing the 

facts that surround the situation at hand. Therefore, the Court 

prefers to avoid the establishment of bright-line rules in Fourth 

Amendment areas. In Schneckloth v. Bustamonte, the 

Supreme Court rejected a comparable bright-line rule that 

would have required a consenter to be informed of their right to 

refuse consent before their choice would be considered 

voluntary. While a reviewing court should consider whether a 

detainee knew of his right to leave at the time his consent is 

requested, the Court did not find this fact alone to be decisive. 

The voluntariness of consent is to be determined by a 

consideration of all the circumstances.



Frazier v. Cupp

 394 U.S. 731, 89 S. Ct. 1420 (1969)

FACTS: The defendant and co-defendant were arrested for 

murder. An officer asked the co-defendant for consent to 

search a duffle bag used by both defendants. He consented and 

evidence was found incriminating the defendant.

ISSUE: Whether a joint user of a container has the 

authority to consent to a search?

HELD: Yes. Persons with a reasonable expectation of 

privacy in a container can grant consent to search 

it.

DISCUSSION: The defendant and the co-defendant were 

using the duffle bag jointly. Since the co-defendant was a couser of the bag, he had authority to consent to its search. The 

defendant, in allowing the co-defendant to use the bag and in 

Fourth Amendment 219
leaving it in his house, assumed the risk that the co-defendant 

would allow someone else to look inside.



Georgia v. Randolph

 547 U.S. 103, 126 S. Ct. 1515 (2006)

FACTS: Officers went to the defendant’s home to investigate 

a domestic dispute. The defendant and his wife accused each 

other of abusing controlled substances. The defendant’s wife 

told the officers that criminal evidence could be found within 

the premises that would substantiate her claims. An officer 

asked the defendant for permission to search the house. He 

refused. The officer then asked the defendant’s wife for 

consent. She readily agreed. The ensuing search revealed 

evidence of the defendant’s criminal activity.

ISSUE: Whether the officers may rely on consent obtained 

in the face of a co-tenant’s present refusal to grant 

that consent?

HELD: No. Consent obtained from one co-tenant refuted 

by another co-tenant who is present destroys the 

consent.

DISCUSSION: The Court held that a co-tenant “wishing to 

open the door to a third party has no recognized authority in 

law or social practice to prevail over a present and objecting cotenant....” The officers, then, have “no better claim to 

reasonableness in entering than the officer would have in the 

absence of any consent at all.” The presence and objection of 

the defendant in this case preclude the government’s use of the 

co-tenant’s consent to enter the premises. “[I]f a potential 

defendant with self-interest in objecting is in fact at the door 

and objects, the co-tenant’s permission does not suffice for a 

reasonable search, whereas the potential objector, nearby but 

not invited to take part in the threshold colloquy, loses out.” 

The Court also stated that “this case has no bearing on the 

220 Fourth Amendment
capacity of the police to protect domestic victims.” The police 

may make entry “to protect a resident from domestic violence.” 

The nature of the intrusion (to quell an emergency) validates a 

co-tenant’s consent despite the defendant's objection.



Fernandez v. California

 571 U.S. ___, 134 S. Ct. 1126 (2014)

FACTS: Officers investigating an assault and robbery saw 

Fernandez run into an apartment building. Once inside the 

building, the officers heard screams coming from one of the 

apartments. The officers knocked on the apartment door and 

Rojas opened it. Rojas had a bump on her nose, fresh blood on 

her shirt and appeared to be crying. Rojas told the officers she 

had been in a fight. When the officers asked her if anyone else 

was in the apartment, Rojas told them that she and her fouryear old son were the only individuals present. When the 

officers asked Rojas to step outside so they could conduct a 

protective sweep of the apartment, Fernandez stepped forward 

and told the officers not to enter. The officers arrested 

Fernandez for assaulting Rojas. The officers transported 

Fernandez to the police station for booking. One-hour later, an 

investigator returned to the apartment and Rojas gave the 

investigator oral and written consent to search the apartment. 

The investigator seized evidence that was admitted against 

Fernandez.

ISSUE: Whether a defendant must be personally present 

and objecting for his refusal to a consent search to 

be valid. 

HELD: Yes. A defendant must be present and objecting for 

his objection to a consent search to be valid. 

DISCUSSION: In Georgia v. Randolph, the U.S. Supreme Court 

held officers may not conduct a warrantless search of a home 

over the express refusal of consent by a physically present 

resident, even if another resident consents to the search. Even 

Fourth Amendment 221
though he was not present and objecting when Rojas gave the 

investigator consent to search the apartment, Fernandez argued 

his previously stated objection to the search of the apartment 

was still valid after he had been taken into custody.

The court reiterated that a person’s objection to a consent 

search is only valid when the person is present and objecting. If 

a person is present, objects to the search, but is then lawfully 

removed from the scene, a person with common authority, such 

as Rojas in this case, can give the officers valid consent to 

search. A person’s objection does not remain in place after his 

lawful arrest.

In addition, the court noted officers cannot remove a person 

who might validly refuse consent to search in order to avoid 

that person’s objection. When officers remove a person who 

might validly object to a search, the court will to determine if 

the person’s removal was objectively reasonable under the 

circumstances. Here, Fernandez’s removal was objectively 

reasonable. 



United States v. Matlock

 415 U.S. 164, 94 S. Ct. 988 (1974)

FACTS: An officer arrested the defendant in front of the 

home in which he rented a room and removed him from the 

immediate area. Several people lived in the home, including 

Graff. The officers approached Graff, who stated she shared a 

bedroom with the defendant in the home. The officers obtained 

Graff’s consent to search the house for money and a gun. The

officers found these items in the bedroom shared by Graff and 

the defendant.

ISSUE: Whether Graff had the ability to grant consent to 

the search?

HELD: Yes. If a third party and the defendant have joint 

authority over the premises, then the third party

222 Fourth Amendment
has the ability to grant consent.

DISCUSSION: When the prosecution seeks to justify a 

warrantless search by proof of voluntary consent, it may show 

that permission was obtained from a third party who possessed 

common authority over the area or item. Common authority 

cannot be implied from the mere property interest that a thirdparty has in the property. The authority that justifies the thirdparty consent rests on mutual use of the property by persons 

having joint access or control. Any of the co-inhabitants have 

the right to permit an inspection and that the others have 

assumed the risk that any of their co-inhabitants might permit 

the common area to be searched. But see the limitations 

imposed by Georgia v. Randolph.



Chapman v. United States

 365 U.S. 610, 81 S. Ct. 776 (1961)

FACTS: The defendant’s landlord summoned the police after 

detecting the odor of whiskey mash on the premises. Officers, 

acting without a warrant but with the consent of the landlord, 

entered the defendant’s rented house in his absence through an 

unlocked window. The officers found an unregistered still and a 

quantity of mash.

ISSUE: Whether the landlord had the authority to grant 

consent to search the house?

HELD: No. The landlord, while owner of the property, may

not authorize law enforcement officers to enter the 

defendant’s home.

DISCUSSION: Belief, however well founded, that an article 

sought is concealed in a dwelling is not justification for a search 

of that place without a warrant, consent or exigency. Such 

searches are unreasonable even with undeniable facts 

establishing probable cause. The officers did not obtain a 

warrant, despite having time to do so. The landlord did not 

Fourth Amendment 223
have authority to forcibly enter the property without the 

defendant’s consent. No exigency was engaged. Therefore, the 

intrusion was unreasonable and the evidence suppressed.



Stoner v. California

 376 U.S. 483, 84 S. Ct. 889 (1964)

FACTS: Officers suspected the defendant had committed a 

robbery and was presently located in a hotel room. They went 

to the hotel. The officers had neither search nor arrest 

warrants. They obtained the consent of the hotel clerk to enter 

and search the defendant’s room. After doing so, they located 

evidence of the defendant’s participation in the robbery.

ISSUE: Whether the hotel clerk had the authority to grant 

consent to search the defendant’s hotel room?

HELD: No. The clerk did not have the authority to waive 

the defendant’s constitutional protection of the 

Fourth Amendment.

DISCUSSION: The Court held that it was important to 

remember it was the defendant’s constitutional right which was 

at stake here, not the night clerk’s nor the hotel’s. It was a 

right, therefore, which only Stoner could waive by word or deed, 

either directly or through an agent. While the night clerk 

clearly and unambiguously consented to the search, there was

nothing to indicate the government had any basis to believe that 

Stoner authorized the night clerk to allow the officers to search 

his room. 



Illinois v. Rodriguez

 497 U.S. 177, 110 S. Ct. 2793 (1990)

FACTS: A woman told officers the defendant had beaten 

her. She also told the officers the defendant was in “our” 

apartment, and that she had clothes and furniture located 

224 Fourth Amendment
there. Officers went with the woman to the apartment without 

an arrest or search warrant. The woman opened the door with 

a key and gave officers consent to enter. Once inside, the 

officers saw drugs and paraphernalia in plain view. At that 

time, the defendant was asleep in the apartment. The officers 

soon discovered the woman no longer lived in the apartment 

and that she had moved out weeks earlier. 

ISSUE: Whether a warrantless entry is valid under the 

Fourth Amendment when it is based upon the 

consent of a third party that the government

reasonably believes possesses authority over the 

premises, but in fact does not?

HELD: Yes. A consent search will be valid if a person 

whom the government reasonably, but mistakenly, 

believes has the authority to grant consent.

DISCUSSION: The Fourth Amendment generally prohibits 

the warrantless entry of a person’s home, whether to make an 

arrest or to search for specific objects. The prohibition does not 

apply, however, to situations in which voluntary consent has 

been obtained, either from the individual whose property is 

searched, or from a third party who possesses common 

authority over the premises.

The Fourth Amendment prohibits “unreasonable” searches and 

seizures. Where the government makes a factual determination 

about a search, its reasonable mistake on the issue of authority 

to consent does not transform the search into an unreasonable 

one. To satisfy the reasonableness requirement of the Fourth 

Amendment, law enforcement officers must not always be 

correct, but they must always act reasonably.

This is not to state that the government may always act on 

someone’s invitation to enter the premises. Even if the 

invitation is accompanied by an explicit assertion that the 

person lives there, the surrounding circumstances could be 

such that a reasonable person would doubt its truth.

Fourth Amendment 225
In this case, the witness did not have the common authority 

over the apartment that was necessary to give the officers valid 

permission to enter or search the apartment. She was an 

“infrequent visitor” rather than a “usual resident.” However, the 

officers were reasonably mistaken in their belief that the 

witness had the authority to consent. The officer’s search 

based on that apparent authority was reasonable.



Bumper v. North Carolina

 391 U.S. 543, 89 S. Ct. 1788 (1968)

FACTS: Officers went to the house of a grandmother to 

investigate a rape in which her grandson was suspected. The 

officers falsely asserted that they had a search warrant and the 

grandmother consented to a search. The officers did not tell her 

anything about the crime they were investigating or that her 

grandson was suspected. The officers found a rifle used in the 

crime.

ISSUE: Whether the grandmother’s consent was voluntarily 

given if the officers falsely stated that they had a 

search warrant?

HELD: No. Where officers falsely assert that they have a 

search warrant and then procure “consent,” the 

consent is invalid.

DISCUSSION: The government has the burden of proving 

that consent was freely and voluntarily given. The 

grandmother’s consent was not voluntarily given because it had 

been procured through a wrongful claim of authority. A search 

cannot be justified as lawful on the basis of consent where that 

consent has been given only after the official conducting the 

search has wrongfully asserted that he possessed a warrant. 

When a law enforcement officer claims authority to search a 

home pursuant to a warrant, they announce in effect that the 

occupant has no right to resist the search.



226 Fourth Amendment
Lewis v. United States

 385 U.S. 206, 87 S. Ct. 424 (1966)

FACTS: An undercover narcotics agent telephoned the 

defendant’s home about the possibility of purchasing 

marijuana. The agent misrepresented his identity to the 

defendant and was invited to the defendant’s home on two 

occasions where he subsequently bought marijuana.

ISSUE: Whether the consent granted was voluntary when a 

government agent, by misrepresenting his identity, 

is invited into a defendant’s home?

HELD: Yes. Where a defendant invites an undercover 

government agent into his home for the specific 

purpose of executing a crime, the agent’s 

misrepresentation of his identity does not offend

the Fourth Amendment.

DISCUSSION: The government is entitled to use decoys and 

to conceal the identity of its agents in the detection of many 

types of crimes. A rule prohibiting the use of undercover agents 

in any manner would severely hamper the government in 

ferreting out those organized criminal activities that are 

characterized by crimes that involve victims who either cannot 

or do not protest.

The home is accorded the full range of Fourth Amendment 

protection. However, when the home is converted into a 

commercial center to which outsiders are invited for purposes of 

transacting unlawful business, that business is entitled to no 

greater protection than if it were carried on in a store, garage, 

car, or on the street. A government agent, in the same manner 

as a private person, may accept an invitation to do business 

and may enter upon the premises as long as it is for the 

purpose contemplated by the occupant and the entry is not 

used to conduct a general search for incriminating materials.

In this case, the defendant invited the undercover agent into his 

home for the purpose of executing a felonious sale of narcotics. 

Fourth Amendment 227
The agent did not commit any acts that were beyond the scope 

of the business, such as conducting a surreptitious search, for 

which he had been invited into the house. The defendant’s 

Fourth Amendment rights were not violated.



Florida v. Jimeno

 500 U.S. 297, 111 S. Ct. 1801 (1991)

FACTS: An officer overheard the defendant arrange what 

appeared to be a drug transaction over a public telephone. The 

officer followed the defendant and observed his failure to obey a 

traffic control device. The officer pulled the defendant over to 

the side of the road to issue him a traffic citation. The officer 

told the defendant he had been stopped for a traffic infraction, 

but went on to explain that he had reason to believe the 

defendant was transporting narcotics in the car, and asked 

permission to search. The officer told the defendant that he did 

not have to consent to a search of the car. The defendant told 

the officer he had nothing to hide, and gave consent to search 

the car. The officer found a folded brown paper bag on the 

floorboard on the passenger side of the car. The officer opened 

the bag and found cocaine inside.

ISSUE: Whether it is reasonable for an officer to consider a 

suspect’s general consent to a search of his car to 

include consent to examine containers therein? 

HELD: Yes. The officer’s request to search the car for 

narcotics reasonably included containers in which 

narcotics could be found.

DISCUSSION: The Fourth Amendment is satisfied when, 

under the circumstances, it is objectively reasonable for the 

officer to believe that the scope of the suspect’s consent 

permitted him to open a particular container within the 

automobile. The touchstone of the Fourth Amendment is 

reasonableness. The Fourth Amendment does not proscribe all 

searches, only those which are unreasonable.

228 Fourth Amendment
The Court has long approved consensual searches because it is 

reasonable for law enforcement officers to conduct a search 

once they have been permitted to do so. However, the scope of 

a search is generally limited by its expressed object. A suspect 

may limit the scope of the search to which he consents. In this 

case, the terms of the authorization to search were simple. The 

defendant granted the officer permission to search his car and 

did not place any express limitation on the scope of the search. 

The officer had informed the defendant that he would be looking 

for narcotics in the car. Therefore it was reasonable for the 

officer to conclude that the general consent to search the car 

included consent to search containers within that car that 

might contain drugs.



Florida v. Jardines

 569 U.S. ___, 133 S. Ct. 1409 (2013)

FACTS: Officers received an unverified tip that the 

defendant was growing marijuana in his home. The officers 

went near the address but did not observe any unusual activity. 

They decided to approach the home to see if they could learn 

more. They brought a trained drug-sniffing dog with them, who 

alerted to the presence of marijuana as it approached the front 

porch of the home. The dog energetically searched for the 

strongest indication of the marijuana, ultimately settling on the 

thresh hold of the front door of the home. The officers departed 

the scene and obtained a search warrant for the home, based in 

part on evidence generated by the dog.

ISSUE: Whether the officers were implicitly invited onto the 

defendant’s front porch?

HELD: No. The officers intruded into the defendant’s 

porch with the intent to conduct a search, which is 

beyond the anticipated activities of any perceived 

invitation.

Fourth Amendment 229
DISCUSSION: The Supreme Court has previously 

“recognized that the knocker on the front door is treated as an 

invitation or license to attempt an entry, justifying ingress to 

the home by solicitors, hawkers and peddlers of all kinds,” 

citing Breard v. Alexandria, 341 U.S. 622 (1951). Law 

enforcement officers are entitled to the same invitation open to 

the general public. However, this does not extend an offer to 

engage in activities outside the customary actions anticipated 

by this implied invitation. The Court asked “whether the 

officers had an implied license to enter the porch, which in turn 

depends upon the purpose for which they entered. Here, their 

behavior objectively reveals a purpose to conduct a search, 

which is not what anyone would think he had license to do.” 

Therefore, the intrusion was unreasonable.



D. INVENTORIES

South Dakota v. Opperman

 428 U.S. 364, 96 S. Ct. 3092 (1976)

FACTS: The defendant’s car was impounded for violations of 

municipal parking ordinances. At the impound lot, an officer 

noticed a watch on the dashboard of the car and other personal 

items on the backseat and back floorboard. The officer opened 

the car. Following standard procedures, the officer inventoried 

the contents of the car including the contents of the unlocked 

glove compartment. The officer found marijuana in the glove 

compartment and the defendant was arrested.

ISSUE: Whether the Fourth Amendment allows the 

government to conduct an inventory search of a car 

lawfully impounded, without a warrant or probable 

cause?

HELD: Yes. Law enforcement officers are entitled to make 

an inventory of items in their custody for reasons of 

accountability.

230 Fourth Amendment
DISCUSSION: When vehicles are impounded, officers

routinely follow care-taking procedures by securing and 

inventorying the car’s contents. These procedures developed in 

response to three distinct needs: (1) to protect the owner’s 

property while it remains in government custody, (2) to protect 

the government against claims of lost or stolen property, and (3) 

to protect officers from potential danger posed by the contents 

of the car.

In this case, the officer was engaged in a caretaking search of a 

lawfully impounded automobile. The reasonableness of the 

search was enhanced because the owner was not present at the 

time of impoundment to claim his property, and because the 

officer saw a watch through the window before began his 

search. In addition, the officer followed a standard procedure, 

making the search reasonable under the Fourth Amendment.



Harris v. United States

 390 U.S. 234, 88 S. Ct. 992 (1968)

FACTS: The defendant’s car was seen leaving the site of a 

robbery. The car was traced and the defendant was arrested as 

he was entering the vehicle near his home. After a quick search 

of the car, an officer took the defendant to the police station and 

impounded the car as evidence. A department regulation stated 

that an impounded vehicle had to be searched in order to 

remove all valuables from it. Pursuant to this regulation and 

without a warrant, an officer searched the car. While he was 

securing the window, however, he saw and seized the 

registration card with the name of the robbery victim on it.

ISSUE: Whether the officer discovered the registration card 

by means of an illegal search?

HELD: No. The discovery of the registration card occurred

as a result of reasonable measures taken to protect 

the car while it was in government custody. 

Fourth Amendment 231
DISCUSSION: The Fourth Amendment does not require the 

government to obtain a warrant for standard inventories. Once 

the door of the car had lawfully been opened, the registration 

card, with the name of the robbery victim on it, was plainly 

visible. Objects falling in the plain view of an officer who has a 

right to be in the position to have that view are subject to 

seizure.



Colorado v. Bertine

 479 U.S. 367, 107 S. Ct. 738 (1987)

FACTS: Officers arrested the defendant for driving under 

the influence of alcohol. They called a tow truck, searched the 

defendant’s car and inventoried its contents in accordance with 

agency procedure. An officer opened a closed backpack in 

which he found a controlled substance, paraphernalia, and a

large amount of cash.

ISSUE: Whether the government can enter a closed 

container during an inventory?

HELD: Yes. A warrantless inventory search of an 

impounded vehicle may include places where 

personal items can be found, including a search of 

the contents of closed containers found inside the 

vehicle.

DISCUSSION: Inventories are a well-defined exception to the 

warrant requirement. However, two conditions must be met 

before an inventory search of an impounded vehicle is lawful. 

First, the officers must act in good faith; that is, they were not 

conducting the inventory to advance a criminal investigation. 

Second, the officers must follow standardized procedures so 

that the searching officer does not have unbridled discretion to 

determine the scope of the search.

In this case, the officers were responsible for the property taken 

into custody. By securing the property, the officers were 

232 Fourth Amendment
protecting the property from unauthorized access. Also, 

knowledge of the precise nature of the property helped guard

against claims of theft, vandalism, or negligence. This

knowledge also helped to avert any danger to the officers or 

others that may have been presented by the potential danger of

the property.



Cooper v. California

 386 U.S. 58, 87 S. Ct. 788 (1967)

FACTS: Officers arrested the defendant and seized his car 

for a narcotics violation in which the car was used. A state law 

directed any officer making an arrest for a narcotics violation to 

seize and deliver any vehicle used to store, conceal, transport, 

sell, or facilitate the possession of narcotics. “Such vehicle to 

be held as evidence until a forfeiture has been declared or a 

release order issued.” A search of the automobile a week later 

revealed evidence used in trial against the defendant.

ISSUE: Whether the warrantless search of the defendant’s 

automobile, seized by the authority of a forfeiture 

statute, made a week after his arrest, and not 

incidental thereto, was reasonable by Fourth 

Amendment standards?

HELD: Yes. Law enforcement officers are permitted to 

search a car that they are going to retain for a 

significant period of time.

DISCUSSION: Evidence showed that the car had been used 

to carry on his narcotics possession and transportation 

activities. A state statute required police in such circumstances 

to seize the vehicle and hold it as evidence until forfeiture was 

declared or a release ordered. A warrantless search of an 

arrested person’s automobile, made a week after his arrest and 

not incident to that arrest, is reasonable where the vehicle is 

seized for forfeiture.



Fourth Amendment 233
Illinois v. Lafayette

 462 U.S. 640, 103 S. Ct. 2605 (1983)

FACTS: The defendant was arrested for disturbing the 

peace and taken to the police station. Without obtaining a 

warrant and in the process of booking him and inventorying his 

possessions, the officers removed the contents of his shoulder 

bag. They found amphetamine pills.

ISSUE: Whether it is reasonable for the government to 

inventory the personal effects of a person under 

lawful arrest as part of the procedure at a police 

station?

HELD: Yes. Consistent with the Fourth Amendment, it is 

reasonable for the government to search the 

personal effects of a person under lawful arrest as 

part of the routine administrative procedure at a 

police station incident to booking and jailing the 

suspect.

DISCUSSION: In determining whether an inventory search 

is reasonable under the Fourth Amendment, government 

interests are balanced against the intrusion on an individual’s 

Fourth Amendment interests. The government has a legitimate 

interest in protecting the owner’s property from theft or false 

claims of theft by persons employed in police activities. A 

standardized procedure for making an inventory as soon as is 

reasonable after reaching the station house protects the owner’s 

property while it is in police custody. The fact that the 

protection of an arrestee’s property might have been achieved 

by less intrusive means does not, in itself, render an inventory 

search unreasonable.



234 Fourth Amendment
Florida v. Wells

 495 U.S. 1, 110 S. Ct. 1632 (1990)

FACTS: The defendant was arrested for DUI. During an

inventory search of the car, the officer found a locked suitcase 

in the trunk. The officer opened the suitcase and found a 

garbage bag containing marijuana.

ISSUE: Whether a container found during an inventory 

search may be opened where there is no agency

policy regarding the opening of containers?

HELD: No. Absent a routine agency policy regarding the 

opening of containers found during an inventory 

search, a container may not be opened.

DISCUSSION: An established routine must regulate 

inventory searches. This is to ensure that an inventory search 

is not a ruse for a general rummaging of the car in order to 

discover incriminating evidence. Policies governing inventory 

searches should be designed to produce an inventory.

In this case, there was no evidence of any policy on the opening 

of containers found during inventory searches. Therefore, 

absent such a policy, the inventory was not sufficiently 

regulated to satisfy the Fourth Amendment, and the seizure of 

the marijuana was unlawful. The Court also stated that if a 

standard inventory policy permitted officers to inventory the 

contents of locked containers, the inventory of such would be 

reasonable.



Fourth Amendment 235
E. INSPECTIONS

1. Structures

See v. City of Seattle

 387 U.S. 541, 87 S. Ct. 1737 (1967)

FACTS: The defendant refused to allow a city representative 

to enter and inspect the defendant’s locked commercial 

warehouse without a warrant and without probable cause to 

believe that a violation of any municipal ordinance existed. The 

inspection was part of a routine, periodic city-wide canvass to 

obtain compliance with the fire code. After the defendant 

refused the inspector access, he was arrested.

ISSUE: Whether a search warrant is required to conduct 

inspections of municipal fire, health, and housing 

inspection?

HELD: No. Legitimate government inspections are an 

exception to the Fourth Amendment’s warrant 

requirement, though an inspection warrant may be 

required.

DISCUSSION: The search of private commercial property, as 

well as the search of private houses, is presumptively 

unreasonable if conducted without a warrant. An 

administrative agency’s demand for access to commercial 

premises for inspection under a municipal fire, health, or 

housing inspection program is measured against a flexible 

standard of reasonableness. However, administrative entry, 

without consent, into areas not open to the public, may only be 

compelled with an inspection warrant.

Business premises may reasonably be inspected in many more 

situations than private homes. Any constitutional challenge to 

the reasonableness of inspection of business premises, such as 

for licensing purposes, can only be resolved on a case-by-case 

basis under the Fourth Amendment. While a search warrant is 

not required, the government must obtain an inspection 

236 Fourth Amendment
warrant or consent to conduct the inspection.



Camara v. Municipal Court

 387 U.S. 523, 87 S. Ct. 1727 (1967)

FACTS: An inspector entered an apartment building to 

make a routine annual inspection for possible violations of the 

city’s housing code. The building manager informed the 

inspector that the defendant, a lessee of the ground floor, was 

using the rear of his leasehold as a personal residence. The 

defendant refused to allow the inspector to enter his residence. 

The defendant was charged with the criminal violation of the 

code section which punished obstruction to inspect.

ISSUE: Whether inspectors can make warrantless entries 

to carry out their duties?

HELD: No. Inspectors must rely on consent, an exigency, 

or an inspection warrant to enter a premises to 

conduct an inspection.

DISCUSSION: At one time, the Supreme Court authorized 

the warrantless entries of residences to conduct safety 

inspections. However, the Court altered its position because: 1) 

the occupant does not know if his or her premises is covered by 

the inspection authority, 2) the occupant does not know the 

inspector’s authority, and 3) the occupant does not know if the 

inspector is acting under proper authority.

Typically, most entries can be obtained with consent from an 

occupant. Some entries can be justified by the exigency posed 

to public health (such as putrid food conditions). However, the 

remaining entries must be supported by a warrant.

The primary principle of the Fourth Amendment was to prohibit 

unreasonable searches. This usually means that searches 

must be supported by a warrant. “The warrant procedure is 

designed to guarantee that a decision to search private property 

Fourth Amendment 237
is justified by a reasonable governmental interest.” In criminal 

cases, the government must establish probable cause of 

criminal activity. For inspection warrants, the government’s 

burden will depend on the type of inspection contemplated. 

“This is not to suggest that a health official need show the same 

kind of proof to a magistrate to obtain a warrant as one must 

who would search for the fruits or instrumentalities of crime. . . 

Experience may show the need for periodic inspections of 

certain facilities without a further showing of cause to believe 

that substandard conditions dangerous to the public are being 

maintained [citing Frank v. Maryland, 359 U.S. 360 (1959)].” In 

some instances, the passage of time may justify an inspection 

warrant.



Marshall v. Barlow’s Inc.

 436 U.S. 307, 98 S. Ct. 1816 (1978)

FACTS: An OSHA inspector entered the customer service 

area of Barlow’s, Inc., an electrical and plumbing installation 

business. Barlow, president and general manager, was on hand. 

The OSHA inspector told Barlow that he wished to conduct a 

search of the working areas of the business. Barlow inquired 

whether any complaint had been received about his company. 

The inspector said no, but that Barlow’s, Inc., had simply 

turned up in the agency’s selection process. The inspector 

again asked to enter the nonpublic area of the business. 

Barlow asked whether the inspector had a search warrant. The 

inspector did not. Barlow refused the inspector admission to the 

employee area of his business. Three months later, the 

Secretary of Labor petitioned the United States District Court to 

issue an order compelling Barlow to admit the inspector.

ISSUE: Whether a District Court order to allow an 

inspection of nonpublic areas of a business without 

sufficient reason is reasonable under the Fourth 

Amendment?

HELD: No. The law that authorized inspections without an 

238 Fourth Amendment
inspection warrant or its equivalent was 

unconstitutional in these circumstances.

DISCUSSION: A statute empowered agents of the Secretary 

of Labor to search the work area of any employment facilities 

within the Act’s jurisdiction in order to inspect for safety 

hazards and regulatory violations. OSHA inspectors were also 

given the authority “to review records required by the Act and 

regulations published in this chapter, and other records which 

are directly related to the purpose of the inspection,” with a 

warrant.

“ . . .[P]robable cause justifying the issuance of a warrant may 

be based on not only specific evidence of an existing violation, 

but also on a showing that reasonable legislative or 

administrative standards for conducting an inspection are 

satisfied with respect to a particular establishment; a warrant 

showing that a specific business has been chosen for a search 

on the basis of a general administrative plan for the 

enforcement of the Act derived from neutral sources such as, for 

example, dispersion of employees in various types of industries 

across a given area, and the desired frequency of search in any 

of the lesser divisions of the area, will protect an employer’s 

Fourth Amendment rights.”

“ . . . [T]he Act is unconstitutional insofar as it purports to 

authorize inspections without a warrant or its equivalent . . . . 

Without a warrant the inspector stands in no better position 

than a member of the public. What is observable by the public 

is observable, without a warrant, by the government inspector 

as well.” Air Pollution Variance Bd. v. Western Alfalfa Corp., 

416 U.S. 861; 94 S. Ct. 2114 (1974).



Donovan v. Dewey

 452 U.S. 594, 101 S. Ct. 2534 (1980)

FACTS: A federal mine inspector attempted to inspect the 

premises of a stone quarry operator under authority granted by 

Fourth Amendment 239
federal law. The pertinent statute provided that federal mine 

inspectors are to inspect all mines at set intervals to insure 

compliance with health and safety standards and to make 

follow-up inspections to determine whether previously 

discovered violations had been corrected. Mine inspectors were 

authorized to inspect any mine without having to obtain a 

warrant. In this case, the inspection was a follow-up to one 

that uncovered numerous safety and health violations. The 

quarry operator refused to allow the inspection to be completed 

because the inspector did not have a search warrant.

ISSUE: Whether a statute can authorize the government to 

engage in a non-consensual inspection without a 

search warrant?

HELD: Yes. Under specific circumstances, such intrusions 

are reasonable.

DISCUSSION: The Court held that there are certain 

situations in which the government can engage in warrantless 

inspections. The Court stated “[T]he greater latitude to conduct 

warrantless inspections of commercial property reflects the fact 

that the expectation of privacy that the owner of commercial 

property enjoys in such property differs significantly from the 

sanctity accorded an individual's home, and that this privacy 

interest may, in certain circumstances, be adequately protected 

by regulatory schemes authorizing warrantless inspections.”

Determining when an inspection warrant is required to conduct 

these types of searches rests on whether (1) Congress has 

reasonably determined that warrantless searches are necessary 

to further a regulatory scheme and (2) the regulatory practices 

are sufficiently comprehensive and defined that the commercial 

operator cannot help but be aware that his business will be 

subject to episodic inspections for explicit purposes.

The warrantless inspections here were justified because the 

statute (1) notified the operator that inspections will be

performed on a regular basis, (2) informed the operator of what 

health and safety standards must be met, thus curtailing the 

240 Fourth Amendment
discretion of government officials to determine what facilities to 

search and what violations to search for, and (3) prohibited 

forcible entries. Should entry to perform an inspection be 

denied, the government was compelled to file a civil action in 

federal court to obtain an injunction against future refusals.



New York v. Burger

 482 U.S. 691, 107 S. Ct. 2636 (1987)

FACTS: The defendant operated a wrecking yard that 

dismantled automobiles and sold their parts. Pursuant to a 

state statue authorizing warrantless inspections of automobile 

junkyards, police officers entered his junkyard and asked to see 

his license and records as to automobiles and parts. The 

defendant did not have the license. The officers conducted an 

inspection of the junkyard and discovered stolen vehicles and 

parts.

ISSUES: 1. Whether the warrantless search of an 

automobile junkyard, conducted pursuant to 

a statute authorizing such a search, falls 

within the exception to the warrant 

requirement for administrative inspections of 

pervasively regulated industries?

2. Whether an otherwise proper administrative 

inspection is unconstitutional because the 

inspection may disclose violations not only of 

the regulatory statute but also of criminal 

statutes?

HELD: 1. It depends. Business owners do not 

command the same level of reasonable 

expectation of privacy that private individuals 

expect.

2. No. Law enforcement officers are entitled to 

recover evidence of crime they observe while 

Fourth Amendment 241
lawfully present in a location.

DISCUSSION: The warrantless search of an automobile 

junkyard, conducted pursuant to a statute authorizing such a 

search, may fall within the exception to the warrant 

requirement. A business owner’s expectation of privacy in 

commercial property is reduced with respect to commercial 

property employed in a “closely regulated” industry. Where the 

owner’s privacy interest is weakened and the government’s 

interest in regulating particular businesses is heightened, a 

warrantless inspection of commercial premises is reasonable. 

This warrantless inspection, even in the context of a pervasively 

regulated business, will be deemed to be reasonable only so 

long as three criteria are met:

1) There must be a “substantial” government interest. 

Because of the auto theft problem, the state has a 

substantial interest in regulating the auto 

dismantling industry.

2) The warrantless inspections must be “necessary to 

further [the] regulatory scheme.”

3) The statute’s inspection program, in terms of 

certainty and regularity of its application, must 

provide a constitutionally adequate substitute for a 

warrant.

The Court found that this statute provided a constitutionally 

adequate substitute for a warrant. It informed a business 

operator that regular inspections will be made, and also sets 

forth the scope of the inspection, notifying him of how to comply 

with the statute and who is authorized to conduct the 

inspection. However, the time, place, and scope of the 

inspection is limited to impose appropriate restraints upon the 

inspecting officers’ discretion. The administrative scheme is not 

unconstitutional simply because, in the course of enforcing it, 

an inspecting officer may discover evidence of crimes, in 

addition to violations of regulations.

242 Fourth Amendment


United States v. Biswell

 406 U.S. 311, 92 S. Ct. 1593 (1972)

FACTS: The defendant was federally licensed to deal in 

sporting weapons. An ATF inspector inspected the defendant’s 

books and requested entry into his locked gun storeroom. The 

defendant asked the inspector if he had a search warrant. The 

inspector explained that the Gun Control Act, 18 U.S.C. § 921, 

authorized such searches, known as compliance checks. After 

the search, the inspector seized two sawed-off rifles that the 

defendant was not licensed to possess.

ISSUE: Whether the search of the business premises was 

reasonable?

HELD: Yes. Compliance checks are reasonable because 

the defendant chose to engage in “pervasively 

regulated” business and to accept a federal license. 

In doing so, he acknowledged that his business 

records, firearms, and ammunition would be 

subject to effective inspection.

DISCUSSION: It is plain that inspections for compliance 

with the Gun Control Act, 18 U.S.C. § 923, pose only limited 

threats to the dealer’s justifiable expectations of privacy. When 

a person chooses to engage in a “pervasively regulated” 

business such as dealing in firearms and accepts a federal 

license, he must do so with the knowledge that his business 

records, firearms, and ammunition will be subject to effective 

inspection. The government annually furnishes each licensee 

with a revised compilation of ordinances that describe his 

obligations and define the inspector’s authority.



Fourth Amendment 243
2. Vehicles

Michigan v. Sitz

 496 U.S. 444, 110 S. Ct. 2481 (1990)

FACTS: The Michigan State Police established a sobriety 

checkpoint program pursuant to advisory committee guidelines. 

Checkpoints could be set up at selected sites along state roads. 

During operation of the checkpoints, all vehicles would be 

briefly stopped and the drivers examined for signs of 

intoxication. If any signs were detected, the individual would be 

taken out of the flow of traffic and have his driver’s license and 

registration checked. If necessary, additional sobriety tests 

would be performed. If officers found the driver to be 

intoxicated, the driver would be arrested. If not, the driver 

would be immediately allowed to resume his or her journey. A 

checkpoint was set up under these guidelines. One hundred 

twenty six vehicles passed through, with an average delay of 

approximately 25 seconds per vehicle. Two drivers were 

detained for additional field sobriety testing, and one of the two 

was arrested. A third driver drove through the checkpoint and 

was ultimately stopped and arrested for driving under the 

influence.

ISSUE: Whether the government’s use of highway sobriety 

checkpoints violated the Fourth Amendment?

HELD: No. In balancing the interests of the state in 

eradicating drunk driving with the minimal 

intrusion upon individual motorists, the checkpoint

inspections were reasonable under the Fourth 

Amendment.

DISCUSSION: Whenever a vehicle is stopped at a 

checkpoint, a “seizure” under the Fourth Amendment occurs. 

In Brown v. Texas, the Court outlined a balancing test that 

applied in this case. Here, the test consisted of “balancing the 

State’s interest in preventing accidents caused by drunk 

drivers, the effectiveness of sobriety checkpoints in achieving 

that goal, and the level of intrusion on an individual’s privacy 

244 Fourth Amendment
caused by the checkpoints.” Applying this test, the sobriety 

checkpoints were constitutional. The States have a substantial 

interest in eradicating the problem of drunk driving. 

Alternatively, the intrusion on individual motorists was slight. 

“In sum, the balance of the State’s interest in preventing drunk 

driving, the extent to which the system can reasonably be said 

to advance that interest, and the degree of intrusion upon 

individual motorists who are briefly stopped, weighs in favor of 

the State program.”



City of Indianapolis v. Edmond

 531 U.S. 32, 121 S. Ct. 447 (2000)

FACTS: The City of Indianapolis operated vehicle 

checkpoints to interdict unlawful drug use and transportation. 

At each checkpoint, the officers stopped a predetermined 

number of vehicles. Pursuant to written directives, an officer 

advised the driver that he or she was being stopped at a drug 

checkpoint and asked the driver to produce a license and 

registration. The officer looked for signs of impairment and 

conducted an open-view examination of the vehicle from the 

outside. Meanwhile, a narcotics-detection dog walked around 

the outside of each stopped vehicle.

ISSUE: Whether the checkpoint seizures without any 

suspicion were reasonable?

HELD: No. Previously approved suspicion-less checkpoints 

were approved for traffic reasons. See Michigan v. 

Sitz.

DISCUSSION: The Court has approved very few warrantless, 

suspicion-less searches and seizures. When it has done so, it 

was always with great uneasiness. For example, this Court has 

upheld brief, suspicion-less seizures at a fixed checkpoint 

designed to intercept illegal aliens, United States v. MartinezFuerte, and at a sobriety checkpoint aimed at removing drunk 

drivers from the road, Michigan v. Sitz. The Court has also 

Fourth Amendment 245
suggested that a similar roadblock to verify drivers’ licenses and 

registrations would be permissible to serve a highway safety 

interest. Delaware v. Prouse. These checkpoints were designed 

to serve purposes closely related to the problems of policing the 

border or the necessity of ensuring roadway safety.

Here, the Court was concerned that this checkpoint program’s 

primary purpose was indistinguishable from the general interest 

in crime control. In determining whether individualized 

suspicion is required to accompany a seizure, the Court 

considers the nature of the interests threatened and their 

connection to the law enforcement practice. The Supreme 

Court is particularly reluctant to create exceptions to suspicion 

requirements where governmental authorities are primarily 

pursuing general crime control. As the Court has never 

approved a checkpoint program whose primary purpose was to 

detect evidence of ordinary criminal wrongdoing, they found the 

seizures here to be unreasonable.



Illinois v. Lidster

 540 U.S. 419, 124 S. Ct. 885 (2004)

FACTS: Police officers set up a highway checkpoint a week 

after a fatal hit-and-run accident in an effort to garner 

information about the perpetrator. As each vehicle approached 

the checkpoint, an officer would stop the vehicle for 10 to 15 

seconds, ask the occupants if they had any information about 

the offense, and hand the driver an informational flyer. The 

defendant drove his vehicle in an erratic manner toward the 

checkpoint. When stopped, the officer detected the odor of 

alcohol on the defendant’s person, asked him to perform a field 

sobriety test, and arrested him for driving under the influence 

of alcohol.

ISSUE: Whether a checkpoint to gather information from 

potential witnesses to a crime violates the Fourth 

Amendment?

246 Fourth Amendment
HELD: No. As the government minimized the disruptive 

features of a checkpoint seizure and had a 

compelling reason for seeking the information, their 

seizure was reasonable.

DISCUSSION: In City of Indianapolis v. Edmond, the 

Supreme Court held that traffic checkpoints designed for 

general crime control purposes were unconstitutional. 

However, the checkpoint in this case is appreciably different as 

its primary purpose was to seek information from the public 

about a serious crime that was committed by someone else.

Specialized governmental interests can justify traffic 

checkpoints that are not supported by individualized suspicion. 

See Michigan v. Sitz and United States v. Martinez-Fuerte. In a 

situation in which the government is seeking information from 

the public, individualized suspicion is irrelevant to the 

government’s purpose. Also, such brief government-public 

encounters are unlikely to provoke anxiety or become intrusive. 

The government is not apt to ask questions that make members 

of the public uncomfortable or incriminate themselves. The 

checkpoint “advanced this grave public concern to a significant 

degree. The police appropriately tailored their checkpoint stops 

to fit important criminal investigatory needs. The stops took 

place about one week after the hit-and-run accident, on the 

same highway near the location of the accident, and at about 

the same time of night. And police used the stops to obtain 

information from drivers, some of whom might well have been in 

the vicinity of the crime at the time it occurred.” Based on 

these factors, the Court held the minimal intrusion of the 

checkpoint was reasonable.



Fourth Amendment 247
3. Parolees

United States v. Knights

 534 U.S. 112, 122 S. Ct. 587 (2001)

FACTS: The defendant was on probation for a drug offense. 

He signed a probation order stating he would “[s]ubmit his ... 

person, property, place of residence, vehicle, personal effects, to 

search at anytime, with or without a search warrant, warrant of 

arrest or reasonable cause by any probation officer or law 

enforcement officer.” A police officer became suspicious of the 

defendant’s activities, and, aware of his probation conditions, 

searched his apartment. He found evidence of criminal activity 

(arson) inside.

ISSUE: Whether the condition of probation limits 

subsequent searches to the defendant’s probation 

status only?

HELD: No. Police officers can conduct criminal evidence 

searches based on diminished expectations of 

privacy and conditions of probation. 

DISCUSSION: Probationers do not enjoy the freedoms that 

other citizens enjoy. In this particular defendant’s probation, 

the sentencing judge determined the search provision was 

necessary. This condition effectively diminished the defendant’s 

reasonable expectation of privacy.

To intrude on this diminished expectation of privacy, the 

government relied on a search condition of probation. The 

Court stated “[I]t was reasonable to conclude that the search 

condition would further the two primary goals of probation–

rehabilitation and protecting society from future criminal 

violations.” Therefore, an officer is entitled to conduct a search 

when: (1) the probationer is subject to a search condition and 

(2) the officer establishes reasonable suspicion the probationer 

engaged in criminal activity (note that a probation officer may 

search under less stringent standards for probation-related 

reasons).

248 Fourth Amendment


Samson v. California

 547 U.S. 843, 126 S. Ct. 2193 (2006)

FACTS: The defendant was placed on parole with the 

condition that he “shall agree in writing to be subject to search 

or seizure by a parole officer or other peace officer at any time of 

the day or night, with or without a search warrant and with or 

without cause.” A police officer observed the defendant walking 

along a public street. Without suspicion and based solely on 

defendant’s status as a parolee, the officer searched him. The 

officer found a controlled substance in the defendant’s person.

ISSUE: Whether a condition of release can reasonably 

contain the condition that the defendant is subject 

to warrantless, suspicionless searches?

HELD: Yes. Parolees’ legal status is such that it is 

reasonable to subject them to warrantless, 

suspicionless searches.

DISCUSSION: Parolees are effectively serving their terms of 

incarceration through a system of intensive supervision. As 

such, the Court noted that a parolee has even less of an 

expectation of privacy than a probationer (such as the one in 

Knights). Also, parolees accept the condition of their release 

with a clear understanding of the conditions that they will face. 

Finally, the government maintains an overwhelming interests in 

controlling prisoners it has released on parole as they are more 

likely, statistically, to commit future crimes. Based on these 

three reasons, warrantless, suspicionless searches of parolees is 

reasonable under the Fourth Amendment.



Fourth Amendment 249
4. Special Needs of the Government

Skinner v. Railway Labor Executives’ Association

 489 U.S. 602, 109 S. Ct. 1402 (1989)

FACTS: Upon learning that alcohol and drug abuse by 

railroad employees had caused or contributed to a number of 

significant train accidents, the Federal Railroad Administration 

(FRA) promulgated regulations under the Secretary of 

Transportation’s authority to adopt safety standards for the 

industry. The regulations required blood and urine tests of 

covered employees to be conducted following certain major train 

accidents or incidents and authorized, but did not require 

railroads to administer breath or urine tests to covered 

employees who violate certain safety rules. The Railway Labor 

Executives' Association and members of labor organizations 

brought suit in the Federal court to enjoin the regulations.

ISSUE: Whether the regulations were so overly intrusive as 

to constitute an unreasonable search of the 

employees’ persons?

HELD: No. The government has a special need in 

protecting the public from intoxicated operators of 

the railway system that warrants suspicion-less, 

warrantless searches.

DISCUSSION: Though those conducting the testing were not 

government employees, the Fourth Amendment is applicable to 

drug and alcohol testing mandated by federal regulations. A 

railroad that complies with the regulations does so by 

compulsion and must be viewed as an agent of the government. 

Similarly, even though some of the regulations do not compel 

railroads to test, such testing is not primarily the result of 

private initiative. Specific features of the regulations combine to 

establish that the government has actively encouraged, 

endorsed, and participated in the testing.

The collection and analysis of the samples required or 

authorized by the regulations constitute searches. The Court 

250 Fourth Amendment
has long recognized that a compelled intrusion into the body for 

blood to be tested for alcohol content constitutes a search. 

Similarly, subjecting a person to the breath test authorized by 

the regulations is deemed a search, since it requires the 

production of “deep lung” breath and thereby implicates 

concerns about bodily integrity. Although the collection and 

testing of urine under the regulations do not entail any 

intrusion into the body, they nevertheless constitute searches 

since they intrude upon expectations of privacy as to medical 

information.

The mandate of the Fourth Amendment is that all searches be 

reasonable. The drug and alcohol tests regulations are 

reasonable under the Fourth Amendment even though there is 

no requirement of a warrant or a reasonable suspicion that any 

particular employee may be impaired, since the government has 

a compelling interest that outweighs employees’ privacy 

concerns. The government’s interest in regulating the conduct 

of railroad employees engaged in safety-sensitive tasks in order 

to ensure the safety of the traveling public and of the employees 

themselves justifies prohibiting such employees from using 

alcohol or drugs while on duty or on call for duty. The proposed 

tests are not an unduly extensive imposition on an individual’s 

privacy. The government’s interest presents “special needs” 

beyond normal law enforcement that may justify departures 

from the usual warrant and probable cause requirements.



National Treasury Employees Union v. Von Raab

 489 U.S. 656, 109 S. Ct. 1384 (1989)

FACTS: A law enforcement agency, which had one of its 

primary enforcement missions the interdiction and seizure of 

illegal drugs smuggled into the country, implemented a drugscreening program requiring urinalysis tests of employees 

seeking transfer or promotion to a position that has either a 

direct involvement in drug interdiction or requiring the 

incumbent to carry firearms or to handle “classified” material. 

Among other things, the program required that an applicant be 

Fourth Amendment 251
notified that selection is contingent upon successful completion 

of drug screening, set forth procedures for collection and 

analysis of samples, and limited the intrusion on employee 

privacy. The test results could not be turned over to any other 

agency, including criminal prosecutors, without the employee’s 

written consent.

ISSUE: Whether the government’s program constituted and 

an unreasonable intrusion into its employees’ 

privacy?

HELD: No. The program constituted a reasonable effort 

that met the government’s special interests.

DISCUSSION: The program’s intrusions are searches that 

must meet the reasonableness requirement of the Fourth 

Amendment. However, the government’s testing program is not 

designed to serve the ordinary needs of criminal evidence 

collection. The purposes of the program are to deter drug use 

among those eligible for promotion to sensitive positions and to 

prevent the promotion of drug users to those positions. 

Therefore, the Court balanced the public interest in the 

program against the employee’s privacy concerns. The 

government’s compelling interest is that certain employees must 

be physically fit and have unimpeachable integrity and 

judgment. It also has a compelling interest in preventing the 

risk to the life of the citizenry posed by the potential use of 

deadly force by persons suffering from impaired perception and 

judgment.

The Court held that a warrant is not required here. Such a 

requirement would serve only to divert valuable agency 

resources from the government’s primary mission that would be 

compromised if warrants were necessary in connection with 

routine, yet sensitive, employment decisions. Furthermore, a 

search or inspection warrant would provide little or no 

additional protection of personal privacy, since the 

government’s program defines narrowly and specifically the 

circumstances justifying testing and the permissible limits of 

such intrusions. Affected employees know that they must be 

252 Fourth Amendment
tested, are aware of the testing procedures that the government 

must follow, and are not subject to the discretion of officials in 

the field. The government’s testing of employees who apply for 

promotion to positions directly involving the interdiction of 

illegal drugs, or to positions that require the incumbent to carry 

firearms, is reasonable despite the absence of probable cause or 

some other level of individualized suspicion.



Ferguson v. City of Charleston

 532 U.S. 67, 121 S. Ct. 1281 (2000)

FACTS: Staff members at a public hospital became 

concerned about an apparent increase in the use of cocaine by 

patients who were receiving prenatal treatment. The staff 

offered to cooperate with the city in prosecuting mothers whose 

children tested positive for drugs at birth. A task force 

consisting of hospital representatives, police, and local officials 

developed a policy which set forth procedures for identifying 

and testing pregnant patients suspected of drug use.

ISSUE: Whether the policy-imposed drug tests constituted 

an unreasonable search?

HELD: Yes. These drug tests conducted for criminal 

investigatory purposes were searches and not 

justified without consent, exigency or a warrant.

DISCUSSION: A state hospital’s performance of a diagnostic 

test to obtain evidence of a patient’s criminal conduct for law 

enforcement purposes is a search. The interest in using the 

threat of criminal sanctions to deter pregnant women from 

using cocaine does not justify a departure from the general rule 

that a search is unconstitutional if not authorized by a valid 

warrant, or warrant exception.

This case differed from the previous cases in which the Court 

considered whether comparable drug tests fit within the closely 

guarded category of constitutionally permissible suspicionless 

Fourth Amendment 253
searches. Those cases employed a balancing test weighing the 

intrusion on the individual’s privacy interest against the 

“special needs” of the government that supported the program. 

In previous cases, there was no misunderstanding about the 

purpose of the test or the potential use of the test results, and 

there were protections against the dissemination of the results 

to third parties (such as prosecutors). The critical difference 

lies in the nature of the “special need” asserted. In each of the 

prior cases, the “special need” was one divorced from the 

government’s general law enforcement interest. 

While the ultimate goal of the program may well have been to 

get the women in question into substance abuse treatment and 

off drugs, the immediate objective of the searches was to 

generate evidence for law enforcement purposes. Given that 

purpose and given the extensive involvement of law enforcement 

officials at every stage of the policy, this case did not fit within 

the closely guarded category of “special needs.”



Vernonia School District v. Acton

 515 U.S. 646, 115 S. Ct. 2386 (1995)

FACTS: A school district was experiencing a dramatic 

increase in student drug use. In particular, many of the 

students involved in the school’s athletic programs were 

suspected of using controlled substances. The school district 

imposed a policy, applicable to all students participating in 

interscholastic athletics, subjecting them to random drug 

testing. The student and parents were required to sign a testing 

consent form before participating in an athletics program. The 

defendant was denied access to an athletics program as his 

parents refused consent.

ISSUE: Whether it is reasonable for a school district to 

require drug testing to participate in athletics 

programs?

254 Fourth Amendment
HELD: Yes. Student-athletes have a reduced expectation

of privacy and the government has a compelling 

interest in protecting the students from the 

associated dangers.

DISCUSSION: The Court has previously dispensed with the 

government’s requirement of obtaining a warrant supported by 

probable cause in the past when a “special need” to conduct the 

search exists. The Court has found a “special need” in relation 

to public schools prior to this case, as well. See New Jersey v. 

T.L.O.. In this case, the Court found that “[L]egitimate privacy 

expectations are even less with regard to student athletes.” 

They are subjected to a variety of communal observations and 

“they voluntarily subject themselves to a degree of regulation” 

by joining the team. The Court balanced the reduced 

expectation of privacy the student-athletes receive in this 

environment with the government’s compelling interest of 

protecting “school athletes, where the risk of immediate 

physical harm to the drug user or those with whom he is 

playing his sport is particularly high.” In doing so, it found the 

school district’s requirements reasonable.



Board of Education v. Earls

 536 U.S. 822, 122 S. Ct. 822 (2002)

FACTS: A public school district required all students that 

want to participate in extracurricular activities to submit to 

drug testing. The students were to take a drug test before 

participation and then submit to random testing while 

participating in the activity. The tests were limited to detecting 

the use of illegal drugs.

ISSUE: Whether the government drug testing of students 

that engage in extracurricular activities is 

reasonable?

HELD: Yes. The government (school system) is responsible 

for providing a safe learning environment, and 

Fourth Amendment 255
students that choose to participate in 

extracurricular activities have accepted a reduced 

expectation of privacy. 

DISCUSSION: The Court held that “[A] student’s privacy 

interest is limited in a public school environment where the 

State is responsible for maintaining discipline, health, and 

safety.” This means that, in certain circumstances, the 

government can exert greater control than would otherwise be 

appropriate for adults. Focusing a drug test on those students 

that involve themselves with extracurricular activities is fitting 

as some of these activities “require occasional off-campus travel 

and communal undress.” Perhaps, more importantly, all of the 

activities impose requirements that do not apply to nonparticipating students. Participation reduces the students’ 

expectation of privacy. The Court held that “[G]iven the 

minimally intrusive nature of the sample collection and the 

limited uses to which the test results are put, we conclude that 

the invasion of students’ privacy is not significant.”



Chandler v. Miller

 520 U.S. 305, 117 S. Ct. 305 (1997)

FACTS: A state law required candidates for specific state 

offices to certify that they had taken a drug test and the results 

were negative. The test date is scheduled by the candidate 

anytime within 30 days prior to ballot qualification.

ISSUE: Whether the government’s process is designed to 

pursue the “special needs” set out in the statute?

HELD: No. The process the government attempted to 

implement is too inefficient to constitute an 

effective test.

DISCUSSION: The Court held that “[W]hen such ‘special 

needs’--concerns other than crime detection--are alleged in 

justification of a Fourth Amendment intrusion, courts must 

256 Fourth Amendment
undertake a context specific inquiry, examining closely the 

competing private and public interests advanced by the 

parties.” Where the public interests are substantial (as in 

Skinner, Vernonia and Von Raab), such warrantless, 

suspicionless searches are reasonable. However, each of these 

cases was warranted by a “special need.” In the case at hand, 

the Court noted that “Georgia’s certification requirement is not 

well designed to identify candidates who violate antidrug laws.” 

Candidates subject to the statute have notice of when the drug 

test is taking place. In fact, the candidates themselves schedule 

the drug tests. The government’s claim that these warrantless, 

suspicionless, special needs searches deters drug users from 

gaining high office within the state was not very persuasive. 

Likewise, the Court held that the state could produce no 

evidence that it currently had drug problems among its elected 

officials or that their officials perform risky, safety sensitive 

tasks.



Wyman v. James

 400 U.S. 309, 91 S. Ct. 381 (1971)

FACTS: A state’s Aid to Families with Dependent Children 

(AFDC) program stressed “close contact” with beneficiaries, 

requiring home visits by caseworkers as a condition for 

assistance. This rule prohibited visitation with a beneficiary 

outside working hours, as well as forcible entry. The defendant, 

a beneficiary under the AFDC program, refused to permit a 

caseworker to visit her home after receiving several days’ 

advance notice. She received notice that the government would 

consequently cancel her assistance.

ISSUE: Whether a home visitation is an unreasonable 

search and, when not consented to or supported by 

a warrant based on probable cause, would violate 

the defendant’s Fourth Amendment rights?

HELD: No. The home visitation provided for by law 

concerning the AFDC program is a reasonable 

Fourth Amendment 257
administrative tool and does not violate any right 

guaranteed by the Fourth Amendment.

DISCUSSION: The Court held, assuming that the home visit 

has some of the characteristics of a traditional search, the 

state’s program was reasonable. The Court found multiple 

reasons for concluding the intrusion was reasonable. The home 

visit served the needs of the dependent child, it enabled the 

government to detect that the intended objects of the benefits 

were receiving them, the program stressed privacy by not 

unnecessarily intruding on the beneficiary’s rights in her home, 

provided the government with essential information not 

obtainable through other sources, was conducted, not by a law 

enforcement officer, but by a caseworker, and was not a 

criminal investigation. Finally, the consequence of refusal to 

permit a home visitation, which does not involve a search for 

violations, is not a criminal prosecution but only the 

cancellation of benefits.



5. Border Inspections

United States v. Ramsey

 431 U.S. 606, 97 S. Ct. 1972 (1977)

FACTS: A Customs officer, without any knowledge of 

possible criminal activity, inspecting a sack of incoming 

international mail from Thailand. He spotted eight envelopes 

that were bulky and which he believed might contain 

merchandise. He opened the envelopes and found controlled 

substances inside.

ISSUE: Whether Customs officials must establish a level of 

suspicion before searching international mail?

HELD: No. The Customs official must only demonstrate a 

suspicion that the package contains merchandise.

DISCUSSION: The Court noted “searches made at the 

258 Fourth Amendment
border, pursuant to the longstanding right of the sovereign to 

protect itself by stopping and examining persons and property 

crossing into this country, are reasonable simply by virtue of 

the fact that they occur at the border, should, by now, require 

no extended demonstration.” In the case at hand, Congress 

authorized the Customs officer to act through Title 19 U.S.C. § 

482, which states, in part “[A]ny of the officers or persons 

authorized to board or search vessels may...search any trunk or 

envelope, wherever found, in which he may have a reasonable 

cause to suspect there is merchandise which was imported 

contrary to law....” At the time the Customs officer opened the 

letters, he “knew that they were from Thailand, were bulky, 

were many times the weight of a normal airmail letter, and ‘felt 

like there was something in there.’” The Court found that the 

officer was in compliance with the statute in that he established 

a reasonable ‘cause to suspect’ that there was merchandise or 

contraband in the envelopes.



United States v. Flores-Montano

 541 U.S. 149, 124 S. Ct. 1582 (2004)

FACTS: During a routine border inspection, the Customs 

inspector directed the defendant to leave his vehicle, which was 

then removed to a secondary inspection station. There, another 

inspector tapping on the gas tank, which sounded solid. A 

mechanic was summoned, and within twenty-five minutes the 

gas tank was removed. Controlled substances were found 

inside.

ISSUE: Whether the removal of the gas tank required 

reasonable suspicion?

HELD: No. The routine (non-damaging) inspection of 

property at the border is reasonable without 

suspicion.

DISCUSSION: Routine searches made at the border are 

reasonable by virtue of the fact that they take place at the 

Fourth Amendment 259
border. The Court stated that the government’s “interest in 

preventing the entry of unwanted persons and effects is at its 

zenith at the international border.” Routine searches and 

seizures that take place at the border are reasonable to regulate 

the collection of duties and to prevent the introduction of 

contraband into the country. The expectation of privacy is less 

at the border than it is in the interior, which is a significant 

factor, as well, in allowing these searches.

The Court refused to require reasonable suspicion before the 

government removed the gas tank, in this instance, as the 

procedure did not damage his property in any noticeable 

manner. The government’s authority to conduct suspicionless 

searches at the border includes the authority to remove, 

disassemble, and reassemble a vehicle’s fuel tank. The Court 

also warned that “[W]hile it may be true that some searches of 

property are so destructive as to require a different result, this 

was not one of them.”



Abel v. United States

 362 U.S. 217, 80 S. Ct. 683 (1960)

FACTS: FBI and INS agents went to a hotel room the 

defendant occupied as a residence. The FBI agents suspected 

the defendant of espionage and attempted to obtain consent 

from him to search the hotel room. When the defendant 

refused to cooperate, the FBI agents signaled to the INS agents, 

who arrested the defendant on an INS administrative arrest 

warrant (for deportation). Evidence of his participation in 

espionage was discovered.

ISSUE: Whether the administrative arrest warrant (for 

deportation) was illegally used as a pretext to 

conduct a search for evidence of criminal (and 

unrelated) activity?

HELD: No. The FBI and INS did not act in “bad faith” in 

the use of the administrative warrant.

260 Fourth Amendment
DISCUSSION: The Court was persuaded by the fact that the 

actions taken by the INS “differed in no respect from what 

would have been done in the case of an individual concerning 

whom no such information was known to exist.” The FBI 

shared information about the defendant that the INS would find 

useful but “did not indicate what action it wanted the INS to 

take.” Once it was discovered that the investigation for 

espionage could not be pursued, the FBI was not “required to 

remain mute.”

The result would have been entirely different had the Court 

found that the administrative warrant “was employed as an 

instrument of criminal law enforcement to circumvent the 

latter’s legal restrictions, rather than as a bona fide preliminary 

step in a deportation proceeding.” The Court stated that the 

test is “whether the decision to proceed administratively toward 

deportation was influenced by, and was carried out for, a 

purpose of amassing evidence in the prosecution for crime.” If 

the government had undertaken these steps to avoid the 

constitutional restraints on criminal law enforcement, the 

evidence would have been suppressed.



VIII. RELATED SEARCH AND SEIZURE ISSUES

A. OFFICER’S INTENT

Whren v. United States

 517 U.S. 806, 116 S. Ct. 1769 (1996)

FACTS: Plainclothes drug detectives were patrolling a 

known drug-use area in an unmarked police car. The officers

noticed the defendant’s vehicle because of its suspicious, 

though legal, activity. As the officers made a U-turn to get a 

closer look at the vehicle, it suddenly turned without signaling 

and sped off at an unreasonable speed. Within a short 

distance, the vehicle stopped behind other traffic at a red light. 

One plainclothes detective got out of the unmarked car, 

approached the vehicle, identified himself as a police officer, 

Fourth Amendment 261
and directed the operator to park his vehicle. The officer 

acknowledged that the purpose of his direction was to get a 

better look at the suspect, not issue a traffic ticket. The officer 

observed two large plastic bags of what appeared to be crack 

cocaine in the defendant’s hands. The detective arrested the 

defendant and the subsequent search of the vehicle yielded 

several types of illegal drugs.

ISSUE: Whether the officer’s pretextual detention of a 

motorist for a traffic violation rendered the seizure 

unreasonable under the Fourth Amendment?

HELD: No. The reasonableness of the officer’s seizure

turns on whether the officer had the authority to 

make the seizure.

DISCUSSION: The Supreme Court found probable cause 

that the defendant’s vehicle was involved in a traffic violation. 

The Court also found that the plainclothes officers would not 

have stopped the vehicle but for their concern that the vehicle 

might be involved in drug activity. As a general matter, the 

Court held that stopping an automobile is reasonable if the 

police officer has probable cause to believe that a traffic 

violation has occurred. Therefore, the Court was only left to 

consider whether the officers’ pretextual intent in stopping the 

vehicle converted an otherwise reasonable police activity into an 

unlawful stop. While previous decisions left no doubt that the 

officer’s motive can invalidate inventory searches and 

administrative inspections, the Court has never held the 

officer’s motives relevant in any other area. The Court held that 

“subjective intentions play no role in ordinary, probable-cause 

Fourth Amendment analysis.” The seizure was lawful.



Devenpeck v. Alford

 543 U.S. 146, 125 S. Ct. 588 (2004)

FACTS: An officer stopped the defendant based on 

suspicion that he was impersonating a police officer. On his 

262 Fourth Amendment
approach to the defendant’s vehicle, the officer noticed that the 

defendant had a special radio designed to receive police 

frequencies, and the defendant possessed handcuffs and a 

portable police scanner. The defendant’s answers were evasive 

and inaccurate. After a supervisor arrived at the scene, he 

noticed a tape recorder in the front seat of the vehicle. The 

recorder was operating in the “record” position. The officers 

placed the defendant under arrest for violating a state privacy 

act, though their primary concern was that he was 

impersonating a police officer. At a later time, the privacy act 

charge was dismissed.

ISSUE: Whether the probable cause inquiry to arrest is 

confined to the known facts of the offense for which 

the arrest is made?

HELD: No. The government is only required to 

demonstrate that the arresting officer knew of facts 

that established probable cause of an offense at the 

time of the arrest.

DISCUSSION: The Court rejected outright a “closely related 

offense” rule, which would have permitted the officer to 

establish probable cause for offense (or a closely related offense) 

for which the defendant was arrested alone. No other potential 

offenses could sustain the arrest, even if the officer could 

establish probable cause. The Supreme Court has previously 

established that the determination of probable cause depends 

upon the facts known to the arresting officer at the time of the 

arrest. Maryland v. Pringle. The officer’s subjective motive for 

making the arrest is irrelevant. The Court stated the 

“[S]ubjective intent of the arresting officer, however it is 

determined (and of course subjective intent is always 

determined by objective means), is simply no basis for 

invalidating an arrest.”



Fourth Amendment 263
Arkansas v. Sullivan

 532 U.S. 769, 121 S. Ct. 1876 (2001)

FACTS: A police officer stopped the defendant for speeding 

and for having an improperly tinted windshield. After a brief 

discussion with the defendant, the officer realized that he was 

aware of “intelligence on [the defendant] regarding narcotics.” 

The officer noticed a weapon when the defendant opened the car 

door in an (unsuccessful) attempt to locate his registration and 

insurance papers. He placed the defendant under arrest for 

speeding, driving without his registration and insurance 

documentation, carrying a weapon, and improper window 

tinting with the expectation of conducting an inventory search 

of the defendant’s vehicle. During an inventory of the vehicle’s 

contents, the officer discovered a controlled substance. The 

defendant moved to suppress this evidence on the grounds that 

the arrest was a pretext and sham to search.

ISSUE: Whether the officer’s subjective intent is relevant in 

determining the reasonableness of a seizure?

HELD: No. The officer’s subjective intent is immaterial in 

evaluating whether a seizure is reasonable.

DISCUSSION: The Supreme Court reaffirmed its holding in 

Whren, in which it noted its “unwillingness to entertain Fourth 

Amendment challenges based on the actual motivations of 

individual officers.” The subjective intent of the officer making 

the seizure plays no role in determining whether probable cause 

to affect a seizure exists.

The U.S. Supreme Court also rejected the Arkansas Supreme 

Court’s contention that it may interpret the United States 

Constitution to provide greater protection than the U.S. 

Supreme Court. The U.S. Supreme Court reiterated its holding 

in Oregon v. Hass, 420 U.S. 7 (1975) that a state can make its 

own laws more restrictive of police activity but cannot do so as 

a matter of federal constitutional law in contradiction of U.S. 

Supreme Court decisions.



264 Fourth Amendment
B. OTHER ISSUES

G. M. Leasing Corp. v. United States

 429 U.S. 338, 97 S. Ct. 619 (1977)

FACTS: The IRS seized certain property of a corporation 

that was determined to be the alter ego of a delinquent 

taxpayer. Government agents seized automobiles registered in 

the corporation’s name, acting without warrants, on public 

streets, parking lots, and other open places. They also went to 

the defendant’s office, a cottage-type building, and made a 

warrantless forced entry. Pending further information as to 

whether the cottage was an office or a residence, the agents 

made no initial seizures. However, two days later they again 

entered the cottage without a warrant and seized books, 

records, and other property.

ISSUES: 1. Whether the seizure of the defendant’s 

property in public was reasonable?

2. Whether the warrantless intrusion into 

corporate property was reasonable?

HELD: 1. Yes. The Fourth Amendment was not 

violated by the warrantless seizures of the 

corporation’s automobiles, since the seizures 

took place on public streets, parking lots, or 

other open places, and did not involve any 

invasion of privacy.

2. No. The warrantless entry into the 

corporation’s business office constituted an 

unconstitutional intrusion into privacy that 

violated the Fourth Amendment.

DISCUSSION: The Court held the warrantless automobile 

seizures, which occurred in public streets, parking lots, or other 

open areas, involved no invasion of privacy and were 

constitutional. The property was validly subject to seizure and 

Fourth Amendment 265
securing the property in public did not invoke any further 

privacy interest of the defendant’s. However, the warrantless 

entry into the privacy of the defendant’s office violated the 

Fourth Amendment, since “except in certain carefully defined 

classes of cases, a search of private property without proper 

consent is ‘unreasonable’ unless it has been authorized by a 

valid search warrant.” The Fourth Amendment protects 

business premises, and corporations enjoy Fourth Amendment 

protections.



Florida v. White

 526 U.S. 559, 119 S. Ct. 1555 (1999)

FACTS: Officers observed the defendant use his car to 

deliver cocaine. This subjected the car to forfeiture under a 

state statute that prohibited the use of motor vehicles in the 

transportation of contraband. Several months later, the officers 

arrested the defendant at his place of employment for an 

unrelated crime. His car was parked in the employee parking 

lot. The officers seized his car, without a warrant, because they 

believed it was subject to the forfeiture statute.

ISSUE: Whether the officers may make a warrantless 

seizure of a car subject to forfeiture in a public 

place?

HELD: Yes. The automobile could be seized in a public 

place because it did not involve any greater 

intrusion than that authorized by law.

DISCUSSION: After the defendant used the automobile in 

violation of the forfeiture statute, the Court considered the 

automobile contraband. As the contraband was readily 

movable, the officers were reasonable in their warrantless 

seizure. This is to be distinguished from a seizure that takes 

place on private property as entry to make a seizure there 

constitutes an invasion of privacy. To seize an automobile on 

private property, officers must obtain a search warrant.

266 Fourth Amendment


Kolender v. Lawson

 461 U.S. 352, 103 S. Ct. 1855 (1983)

FACTS: A state statute required persons who loiter or 

wander on the streets to identify themselves and to account for 

their presence when requested by a police officer. The state 

appellate court construed the statute to require a person to 

provide “credible and reliable” identification when requested by 

a police officer who has reasonable suspicion of criminal activity 

sufficient to justify a Terry stop. The defendant was arrested 

and convicted under the statute.

ISSUE: Whether the state statute was constitutionally 

valid?

HELD: No. The statute, as drafted and as construed by 

the state court, was unconstitutionally vague on its 

face.

DISCUSSION: A state criminal statute that requires persons 

to identify themselves and to account for their presence when 

requested by a police officer under circumstances that would 

justify a valid stop is unconstitutionally vague. This statute 

encourages arbitrary enforcement by failing to clarify what is 

contemplated by the requirement that a suspect provide a 

“credible and reliable identification.” The statute vests virtually 

complete discretion in the hands of the government to 

determine whether the suspect has satisfied the statute and 

must be permitted to go on his way in the absence of probable 

cause to arrest. Therefore, the statute is void-for-vagueness. 

The void-for-vagueness doctrine requires that a penal statute 

define the criminal offense with sufficient definiteness that 

ordinary people can understand what conduct is prohibited and 

in a manner that does not encourage arbitrary and 

discriminatory enforcement.



Fourth Amendment 267
Hiibel v. Sixth Judicial Dist. Court

 540 U.S. 1175, 124 S. Ct. 1494 (2003)

FACTS: An officer developed reasonable suspicion that the 

defendant was involved in an assault. He approached the 

defendant, explained he was investigating a crime, and asked to 

see the defendant’s identification. The defendant refused the 

officer’s eleven requests to see his identification. The officer 

arrested the defendant for violating a state law that prohibited 

“obstructing a public officer in discharging...any legal duty of 

his office.” The legal duty that the defendant obstructed was a 

statute that provided “[A]ny person so detained (Terry stop) 

shall identify himself, but may not be compelled to answer any 

other inquiry of any peace officer.”

ISSUE: Whether the state statute is constitutional in that it 

requires persons to identify themselves during a 

Terry stop?

HELD: Yes. “Stop and identify” statutes do not change the 

nature of the seizure itself and the information 

obtained typically satisfies a significant 

governmental interest.

DISCUSSION: The Fourth Amendment requires all seizures 

to be reasonable. Reasonableness is determined “by balancing 

its intrusions on the individual’s Fourth Amendment interests 

against its promotion of legitimate government interests.” 

Delaware v. Prouse. The Court held that the state statute 

satisfies this standard. The statute does not change the 

character, duration or location of a stop and the officer’s 

demand for identity had an immediate purpose for the Terry

stop.

The defendant’s Fifth Amendment argument failed to persuade 

the Court because disclosure of his name presented no real 

danger of incrimination. The Court has previously determined 

that the Fifth Amendment privilege only covers those 

communications that are testimonial, compelled, and 

incriminating. The defendant’s “refusal to disclose his name 

268 Fourth Amendment
was not based on any articulated real and appreciable fear that 

his name would be used to incriminate him.”



Gerstein v. Pugh

 420 U.S. 103, 95 S. Ct. 854 (1975)

FACTS: The defendants were arrested and charged with 

felonies based on a prosecutor’s charging document. At that 

time, the state only required indictments for capital offenses. 

State case law held that the filing of an information foreclosed 

the defendant’s right to have a judge determine whether 

probable cause existed for the arrest.

ISSUE: Whether a person arrested and held for trial under 

an information is constitutionally entitled to a 

judicial determination of probable cause for pretrial 

restraint of liberty?

HELD: Yes. The Fourth Amendment demands a judicial 

review of an arrest before an “extended restraint of 

liberty” is imposed.

DISCUSSION: The Court noted that in many instances, the 

government is permitted to act without the review of a judicial 

authority. The Court stated that “a policeman’s on-the-scene 

assessment of probable cause provides legal justification for 

arresting a person suspected of crime, and for a brief period of 

detention to take the administrative steps incident to arrest. 

Once the suspect is in custody, however, the reasons that 

justify dispensing with the magistrate’s neutral judgment 

evaporate.” At some point, the government’s need to secure the 

defendant subsides and “the suspect’s need for a neutral 

determination of probable cause increases significantly.” Based 

on these factors the Court held that “the Fourth Amendment 

requires a judicial determination of probable cause as a 

prerequisite to extended restraint of liberty following arrest.” 

The fact that the prosecutor found substantial evidence to 

warrant a prosecution does not afford the citizen the protections 

Fourth Amendment 269
contemplated in the Fourth Amendment.



Zurcher v. Stanford Daily

 436 U.S. 547, 98 S. Ct. 1970 (1978)

FACTS: During a civil disturbance, a group of 

demonstrators attacked a group of nine police officers. One 

officer was knocked to the ground and was struck repeatedly on 

the head. Another officer suffered a broken shoulder. All nine 

were injured. The officers were only able to identify two of their 

assailants, but one saw a photographer recording the assault. 

A special edition of the Stanford Daily (Daily), a student 

newspaper published at Stanford University, carried articles 

and photographs devoted to the protest. The photographs 

carried the byline of a Daily staff member and indicated that he 

had been in the area of the assault on the nine officers. A 

warrant was issued for an immediate search of the Daily’s 

offices for negatives, film, and pictures showing the events at 

the demonstration.

ISSUE: Whether the newspaper’s reasonable expectation of 

privacy is also protected by a First Amendment 

“freedom of the press” protection from the 

government intrusion?

HELD: No. Organizations involved in traditional First 

Amendment activities are not provided extra 

constitutional protections.

DISCUSSION: A search of the premises of a newspaper is 

not unreasonable within the meaning of the Fourth Amendment 

and does not violate the First Amendment. There is no 

constitutional requirement that when the innocent party of a 

search is a newspaper, criminal evidence must generally be 

secured through a subpoena duces tecum rather than a search 

warrant. Where the government seeks materials presumptively 

protected by the First Amendment, the warrant requirement of 

the Fourth Amendment should be administered to leave as little 

270 Fourth Amendment
as possible to the discretion or whim of the officer in the field.

NOTE: This decision led to the enactment of 42 U.S.C. § 

2000aa (Privacy Protection Act) that places some additional 

burdens on government officials attempting to secure a search 

warrant of premises traditionally operated in First Amendment 

activities.



A Quantity of Copies of Books v. Kansas

 378 U.S. 205, 84 S. Ct. 1723 (1964)

FACTS: A state law authorized the seizure of allegedly 

obscene books. The law did not provide the possessors of these 

books the right to challenge the determination of obscenity until 

after the seizure of property. Law enforcement officers obtained 

an order under this law to seize and impound copies of certain 

paperback novels from a place of business. 

ISSUE: Whether the procedures leading to the seizure of 

obscene materials was constitutionally sufficient?

HELD: No. The line between constitutionally protected 

material and obscene material is very fine. 

Procedures for seizing illegal material must not 

inhibit the lawful possession of other materials.

DISCUSSION: The Court held that “[S]tate regulation of 

obscenity must ‘conform to procedures that will ensure against 

the curtailment of constitutionally protected expression, which 

is often separated from obscenity only by a dim and uncertain 

line.’” Bantam Books, Inc., v. Sullivan, 372 U.S. 58 (1963). As 

the state did not provide the defendant with the opportunity to 

challenge the determination of obscenity prior to the books’ 

seizure, the process was unconstitutional.



Fourth Amendment 271
NOTES

272 Fourth Amendment
IX. THE FIFTH AMENDMENT

A. INTRODUCTORY ISSUES

Malloy v. Hogan

 378 U.S. 1, 84 S. Ct. 1489 (1964)

FACTS: The defendant was arrested for and pled guilty to a 

misdemeanor gambling charge. While on probation, he was 

ordered to testify before a county referee conducting an 

investigation into gambling in the local area. The defendant 

refused to answer any questions on the grounds the answers 

may incriminate him. The court held the defendant in 

contempt for failing to answer the questions.

ISSUE: Whether the Fifth Amendment’s self-incrimination 

clause applies to state actions?

HELD: Yes. Through the Fourteenth Amendment, the 

states must abide by the legal principles of the Fifth

Amendment’s Self-Incrimination Clause.

DISCUSSION: The Court held that the Due Process Clause 

of the Fourteenth Amendment to the Constitution requires 

states to respect the self-incrimination principles of the Fifth 

Amendment. The defendant may refrain from answering 

questions that would support a confession or provide a link in 

the chain of evidence needed to prosecute him.



Corley v. United States

 556 U.S. 303; 129 S. Ct. 1558 (2009)

FACTS: The defendant was arrested for assaulting a federal 

officer. He was also suspected of being involved in a bank 

robbery. The officers eventually took the defendant to their 

offices, located in the same building as the local magistrate 

judges. Some 9.5 hours after his arrest, the defendant waived 

his Miranda rights and gave an oral confession to the bank 

Fifth Amendment 273
robbery. He then stated “he was tired and wanted a break” 

which was granted. The following morning, the officers 

continued their interrogation, which resulted in the defendant’s 

written confession that afternoon. Twenty-nine and a half 

hours after his arrest, the officers presented the defendant to a 

magistrate judge for his initial appearance.

ISSUE: Whether statements made 9.5 and 29.5 hours after 

an arrest are involuntarily obtained?

HELD: Yes. Through statute and case law, statements 

obtained more than six hours after arrest and 

without the benefit of a Preliminary Hearing are 

presumed to be inadmissible.

DISCUSSION: The Court has previously held “a confession 

given seven hours after arrest inadmissible for ‘unnecessary 

delay’ in presenting the suspect to a magistrate, where the 

police questioned the suspect for hours ‘within the vicinity of 

numerous committing magistrates’” [citing Mallory v. United 

States]. Delay for the purpose of conducting an interrogation is 

the height of the meaning of “unnecessary delay” prohibited by 

the Federal Rules of Procedure 5(a). This is known as the 

McNabb-Mallory rule.

When Congress enacted 18 U.S.C. § 3501, the statute specified 

that statements (1) voluntarily given and (2) made within 6 

hours of arrest, are admissible. The 6-hour time limit is 

extended when further delay is “reasonable considering the 

means of transportation and the distance to be traveled to the 

nearest available [magistrate judge].” The Court found that this 

statute “modified McNabb-Mallory without supplanting it.” This 

means that admissibility determinations will hinge on “whether 

the defendant confessed within six hours of arrest (unless a 

longer delay was ‘reasonable considering the means of 

transportation and the distance to be traveled to the nearest 

available [magistrate judge]’).” “If the confession came within 

that period, it is admissible, subject to the other Rules of 

Evidence.” Statements obtained beyond the six-hour rule can 

be suppressed if a court decides the delay was unreasonable or 

274 Fifth Amendment 
unnecessary under the McNabb-Mallory rule. 



Brogan v. United States

 522 U.S. 398, 118 S. Ct. 805 (1998)

FACTS: The defendant falsely answered “no” when federal 

agents asked him whether he had received any cash or gifts 

from a company whose employees were represented by the 

union in which he was an officer. He was indicted on federal 

bribery charges and for making a false statement within the 

jurisdiction of a federal agency in violation of 18 U.S.C. § 1001 

(false statements).

ISSUE: Whether the defendant has the right to assert a 

false defense?

HELD: No. Defendants have a constitutional right to 

remain silent during investigations, but no right to 

lie.

DISCUSSION: Although many Court of Appeals decisions 

had embraced the “exculpatory no” doctrine, the Court held 

that it is not supported by § 1001’s plain language. By its 

terms, § 1001 covers “any” false statement including the use of 

the word “no” in response to a question. The defendant’s 

argument that § 1001 does not criminalize simple denials of 

guilt proceeded from two mistaken premises: that the statute 

criminalizes only those statements that “pervert governmental 

functions,” and that simple denials of guilt do not do so. The 

Fifth Amendment confers a privilege to remain silent. It does 

not confer a privilege to lie.



Mitchell v. United States

 526 U.S. 314, 119 S. Ct. 1307 (1999)

FACTS: The defendant pled guilty to one count of 

conspiring to distribute five or more kilograms of cocaine. The 

Fifth Amendment 275
quantity of drugs involved was crucial, because this amount 

would be used by the court in sentencing. The defendant 

reserved the right to contest the drug quantity attributable to 

her under the conspiracy count. The trial court advised the 

defendant the drug quantity would be determined at her 

sentencing hearing. During the sentencing proceeding, the 

government offered testimony from others involved in the 

conspiracy to establish both the number of transactions in 

which the defendant had participated, as well as the amount of 

cocaine she sold. The defendant did not testify at the 

sentencing proceedings, relying instead on her attorney’s 

attacks on the credibility of the government witnesses. The 

judge expressly stated that he was drawing an adverse inference 

from the defendant’s failure to testify at her sentencing hearing.

ISSUE: Whether a defendant waives her privilege against 

self-incrimination in the sentencing phase of the 

case by pleading guilty?

HELD: No. A defendant who pleads guilty does not waive 

her Fifth Amendment right against selfincrimination in the sentencing phase of the case.

DISCUSSION: Nothing prevents a defendant from relying 

upon a Fifth Amendment privilege at a sentencing proceeding. 

“Treating a guilty plea as a waiver of the privilege at sentencing 

would be a grave encroachment on the rights of defendants.” 

Otherwise, the government could compel a defendant to take 

the witness stand and under questioning, elicit information 

from the defendant that could contribute to an enhanced 

sentence. “Where a sentence has not yet been imposed, a 

defendant may have a legitimate fear of adverse consequences 

from further testimony.” The government retains the burden of 

presenting facts “relevant to the crime at the sentencing phase 

and cannot enlist the defendant in this process at the expense 

of the self-incrimination privilege.” By holding her silence 

against her, the judge impermissibly interfered with the

defendant’s exercise of her Fifth Amendment right against 

compulsory self-incrimination.

276 Fifth Amendment 


B. FOURTH AMENDMENT VIOLATIONS

Dunaway v. New York

 442 U.S. 200, 99 S. Ct. 2248 (1979)

FACTS: Following a robbery and murder, the government

received information that implicated the defendant, though it 

did not amount to probable cause to arrest. Nevertheless, the 

officers illegally seized the defendant and brought him to the 

police station. Once at the station, the officers placed the 

defendant in an interrogation room, where he was given his 

Miranda rights. The defendant waived his rights and, within an 

hour of reaching the police station, made statements and drew 

sketches that implicated him in the crime.

ISSUE: Whether the statements and sketches made by the 

defendant are admissible if the government violates

his Fourth Amendment rights?

HELD: No. The statements and sketches provided by the 

defendant were inadmissible, as they were the 

product of an illegal seizure under the Fourth 

Amendment.

DISCUSSION: The government effectively arrested the 

defendant when they seized him and took him to the station for 

questioning. While the government did not characterize the 

seizure as an “arrest,” there was no practical difference between 

how the defendant was treated and a traditional arrest. 

Because they did not have probable cause, the defendant’s 

seizure was in violation of the Fourth Amendment.

As for the defendant’s statements, the Court considered 

“whether the connection between the unconstitutional 

government conduct and the incriminating statements and 

sketches obtained during the defendant’s illegal detention were 

nevertheless sufficiently attenuated to permit their use at trial.” 

Among the factors to be considered are the time between “the 

Fifth Amendment 277
arrest and the confession, the presence of intervening 

circumstances, and, particularly, the purpose and flagrancy of 

the official misconduct.” Applying these factors, the Court 

found a direct connection between the illegal arrest of the 

defendant and the statements and sketches obtained from him. 

Less than two hours had elapsed between the arrest and the 

statements; there were no “intervening” circumstances; and the 

clear purpose of the officers in taking the defendant into 

custody was to interrogate him. Although the defendant was 

properly advised of his Miranda rights and his statements were 

given “voluntarily,” these facts are not enough to break the 

direct causal connection between the illegal arrest and his 

statements.



New York v. Harris

 495 U.S. 14, 110 S. Ct. 1640 (1990)

FACTS: Officers had probable cause the defendant 

committed a murder. They went to his apartment to arrest him 

without a warrant. After arriving, the officers knocked on the 

door, displayed their guns and badges, and entered the 

defendant’s apartment without consent. Once inside, the 

officers read the defendant his Miranda rights, which he waived. 

In response to the officers’ questions, the defendant admitted 

his guilt in an oral statement and was arrested. The officers 

took the defendant to the police station, and again informed 

him of his Miranda rights. For a second time, the defendant 

admitted his guilt, this time in a signed, written statement. A 

third statement, this time videotaped, was later obtained from 

the defendant, even though he indicated that he wanted to end 

the interrogation. At trial, the defendant’s first and third 

statements were suppressed, while his second statement was 

admitted into evidence. The defendant was convicted of seconddegree murder.

ISSUE: Whether the defendant’s second statement (the 

written statement taken at the police station) 

should have been suppressed because the police 

278 Fifth Amendment 
violated his Fourth Amendment protections?

HELD: No. Where the government has probable cause to 

arrest a suspect, the exclusionary rule does not bar 

the government’s use of a statement made by the 

defendant outside of his home, even though the 

statement was obtained after an illegal entry into 

the home.

DISCUSSION: In Payton v. New York, the Court held, “the 

Fourth Amendment prohibits the police from effecting a 

warrantless and nonconsensual entry into a suspect’s home in 

order to make a routine felony arrest.” Here, while the police 

had probable cause to arrest the defendant, they entered his 

home without an arrest warrant and without his consent. Their 

entry into the defendant’s home violated the Fourth 

Amendment. Any evidence obtained during this illegal entry is 

excluded as the fruit of an unreasonable search. However, “the 

rule in Payton was designed to protect the physical integrity of 

the home; it was not intended to grant criminal suspects, like 

the defendant, protection for statements made outside their 

premises where the police have probable cause to make an 

arrest.” In this case, the police had probable cause to arrest the 

defendant prior to entering his home. Because of this, the 

defendant “was not unlawfully in custody when he was removed 

to the station house, given Miranda warnings, and allowed to 

talk.” While the entry into the defendant’s home was illegal, his 

continued custody outside of the home was lawful. Accordingly, 

the statement taken at the station house “was not an 

exploitation of the illegal entry into the defendant’s home” and 

the exclusionary rule should not apply.



Brown v. Illinois

 422 U.S. 590, 95 S. Ct. 2254 (1975)

FACTS: The government arrested the defendant without 

probable cause and without a warrant, and under 

circumstances indicating that the arrest was part of an 

Fifth Amendment 279
investigation. The defendant made two in-custody 

incriminating statements after he had been given Miranda

warnings.

ISSUE: Whether being advised of his Miranda protections 

adequately removed the taint of the illegal arrest so 

as to allow the government the right to use the 

statements against the defendant at his trial?

HELD: It depends. Providing Miranda warnings to a 

suspect that was illegally arrested is only one factor 

in determining whether the “taint” of the illegal 

seizure has evaporated. 

DISCUSSION: The Court held that the exclusionary rule 

serves different interests and policies under the Fourth and 

Fifth Amendment. The state court erred in adopting a per se 

rule that Miranda warnings in and of themselves break the 

causal chain between an illegal seizure (Fourth Amendment) 

and any subsequent statement (Fifth Amendment). Miranda

warnings do not automatically amend Fourth Amendment 

transgressions. Thus, even if the statements in this case were 

found to be voluntary under the Fifth Amendment, the Fourth 

Amendment issue remained.

The question about whether a confession is voluntary given 

must be answered on the facts of each case. Though the 

Miranda warnings are an important factor in resolving the 

issue, other factors must be considered. Trial courts should 

consider: the temporal proximity of the arrest to the confession, 

the intervening circumstances, and, particularly, the purpose 

and flagrancy of the official misconduct. The burden of showing 

admissibility of in-custody statements of persons who have 

been illegally arrested rests with the government.



280 Fifth Amendment 
Kaupp v. Texas

 538 U.S. 626, 123 S. Ct. 1843 (2003)

FACTS: Suspecting (but without probable cause) that a 17 

year-old defendant was involved in a murder, three officers went 

to his home at 3 a.m. on a January morning. They were 

granted entry to the home by the defendant’s father, and 

immediately went to the defendant’s room, where they found 

him asleep. One of the officer’s awoke the defendant with a 

flashlight, identified himself, and stated, “we need to go and 

talk.” The defendant’s reply was “okay.” The officers 

handcuffed the defendant and led him out of the house, putting 

him into a patrol car. The defendant was shoeless and wearing 

only boxer shorts and a T-shirt. At no point did the officers tell 

the defendant that he was free to leave. The officers took the 

defendant to their interview room, removed the handcuffs, and 

advised him of his Miranda rights. After initially denying his 

involvement, the defendant made incriminating statements. 

ISSUE: Whether the defendant’s illegal arrest tainted his 

subsequent statements about his involvement in 

the crime?

HELD: Yes. Unless the government can demonstrate that 

the statements were not the direct result of an 

illegal arrest, the statements were involuntarily 

obtained.

DISCUSSION: The Court did not consider the defendant’s 

statement “okay” as a basis for a consensual encounter. It 

found that the “removal from one’s house in handcuffs on a 

January night with nothing on but underwear for a trip to a 

crime scene on the way to an interview room at law enforcement 

headquarters” to be a seizure. Though the Supreme Court has 

authorized certain seizures on something less than probable 

cause, it has never approved the involuntary removal of a 

suspect from his home for investigative purposes absent 

probable cause or judicial authorization.

This illegal arrest requires suppression of any subsequent 

Fifth Amendment 281
statements unless the government can demonstrate they were 

made as “an act of free will [sufficient] to purge the primary 

taint of the unlawful invasion” (citing Wong Sun v. United

States). Significant factors to examine include the providing of 

Miranda warnings, the sequential nearness of the illegal arrest 

and the statement, intervening circumstances, and, especially, 

the reason and flagrancy of the government’s misbehavior. In 

this case, the Court noted that only one of these factors 

(providing of Miranda warnings) supported the government. 

The Court previously held that the provision of Miranda

warnings does not, by itself, automatically break the 

misconduct chain. All other factors favored the defendant’s 

position.



C. DUE PROCESS

Foster v. California

 394 U.S. 440, 89 S. Ct. 1127 (1969)

FACTS: Following a robbery, officers presented a lineup to 

the only witness to the crime. The defendant was placed in the 

lineup with two other men. While the defendant was 

approximately six feet tall, the other two men were six to seven 

inches shorter. Additionally, the defendant wore a leather jacket 

that the witness stated was similar to one wore by the robber. 

When the witness was unable to identify the defendant as the 

robber, he requested, and was granted, the opportunity to 

speak with the defendant alone. He was still unable to identify 

the defendant as the robber. Approximately 10 days later, a 

second lineup was held, this time with five men. The defendant 

was the only man in the second lineup that had also appeared 

in the first lineup. This time, the witness positively identified 

him as the robber. He was ultimately convicted of robbery.

ISSUE: Whether the lineup procedures were conducted in a 

manner that could produce mistaken identification 

so as to deny due process of law?

282 Fifth Amendment 
HELD: Yes. Judged by the “totality of the circumstances,” 

the lineup was unnecessarily suggestive of the 

defendant as the criminal.

DISCUSSION: The Supreme Court held that the 

identification procedures utilized by the government violated the 

defendant’s right to due process. Looking at the “totality of the 

circumstances” in this case, “the suggestive elements in this 

identification procedure made it all but inevitable that the 

witness would identify the defendant as the robber, whether or 

not he was in fact the man.” In the first lineup, the defendant 

stood out from the other two men due to the physical 

differences. He was also the only participant in the lineup 

wearing clothing similar to that worn by the actual robber. 

Because the witness was still unable to identify the defendant, 

the government permitted a “one on one” confrontation between 

the witness and the defendant. “The practice of showing 

suspects singly to persons for the purpose of identification, and 

not as part of a lineup, has been widely condemned.” The 

second lineup was unfairly suggestive because the defendant 

was the only participant who was also in the first lineup. “In 

effect, the police repeatedly said to the witness, ‘This is the 

man.’ This procedure so undermined the reliability of the 

eyewitness identification so as to violate due process.”



Stovall v. Denno

 388 U.S. 293, 87 S. Ct. 1967 (1967)

FACTS: A doctor was stabbed to death in his home. His 

wife was also stabbed by the attacker, but survived. She 

underwent major surgery to save her life but it was unclear 

whether she would survive. The officers found evidence at the 

crime scene that led them to the defendant, who was arrested 

the day after the assault. The next day, the officers arranged to 

have the defendant brought to the injured woman’s hospital 

room to determine if she could identify the defendant as the 

murderer. During this identification process, the defendant was 

handcuffed to one of the five officers accompanying him, and 

Fifth Amendment 283
was the only African-American in the room. The defendant was 

also required to say some words for the purpose of voice 

identification. The victim identified the defendant as the 

murderer.

ISSUE: Whether the identification procedures utilized by 

the officers was so unnecessarily suggestive so as to 

violate the defendant’s due process rights?

HELD: No. Judged by the “totality of the circumstances,” 

the identification procedures were necessary to 

secure significant information.

DISCUSSION: “The practice of showing suspects singly to 

persons for the purpose of identification, and not as part of a 

lineup, has been widely condemned.” Nonetheless, whether 

identification procedures constitute a due process violation 

requires the Court to look to the “totality of the circumstances” 

surrounding the identification. In this case, it was evident that 

the procedures utilized by the police were necessary. The victim 

was the only person who could either identify the defendant or 

exonerate him for the crime. “Her words, and only her words, 

could have resulted in freedom for the defendant. The hospital 

was not far from the courthouse and jail. No one knew how 

long the victim might live. Faced with the responsibility of 

identifying the attacker, with the need for immediate action and 

with the knowledge that the victim could not visit the jail, the 

officers followed the only feasible procedure and took the 

defendant to the hospital room.”



Neil v. Biggers

 409 U.S. 188, 93 S. Ct. 375 (1972)

FACTS: The defendant was convicted of rape. Some of the 

evidence consisted of testimony concerning the victim’s visual 

and voice identification at a stationhouse show-up that 

occurred seven months after the crime. The victim had been in 

the presence of the assailant for a significant amount of time 

284 Fifth Amendment 
and had several opportunities to directly observe him both 

indoors and outdoors. She testified that she had “no doubt” 

that the defendant was her assailant. She had previously given 

the government a description of her assailant that was 

confirmed by an officer. The victim had not identified any of the 

others who were presented at previous show-ups, lineups, or 

through photographs. Officers asserted that they used the 

show-up technique because they had difficulty in finding other 

individuals generally fitting the defendant’s description as given 

by the victim for a lineup.

ISSUE: Whether the show-up was so impermissibly 

suggestive of the defendant’s identification as the 

perpetrator, to deprive him of his right to due 

process?

HELD: No. While the station-house identification may 

have been suggestive, under the “totality of the 

circumstances,” the victim’s identification of the 

defendant was reliable.

DISCUSSION: The Supreme Court held that the 

identification of the defendant was reliable. Eyewitness 

identification at trial following a pretrial identification will be set 

aside only if the pretrial identification procedure was so 

impermissibly suggestive as to give rise to a very substantial 

likelihood of irreparable misidentification. The factors to be 

considered in evaluating the likelihood of misidentification 

include:

1) The opportunity of the witness to view the criminal 

at the time of the crime,

2) The witness’s degree of attention,

3) The accuracy of the witness’s prior description of 

the criminal,

4) The level of certainty demonstrated by the witness 

at the confrontation,

Fifth Amendment 285
5) The length of time between the crime and the 

confrontation.

Based on these factors, the witness’s identification of the 

defendant was reliable.



Perry v. New Hampshire

 566 U.S. ___, 132 S. Ct. 716 (2012)

FACTS: An officer was called to an apartment parking lot to 

investigate a suspicious person in the early morning hours. 

Upon her arrival, she found the defendant engaged in what 

appeared to be the burglary of a motor vehicle. A second officer 

arrived and detained the defendant in the parking lot while the 

initial officer visited an eyewitness to the crime. The eyewitness 

was located in her residence on the fourth floor of the 

apartment complex. The officer asked for a description of the 

perpetrator of the crime and the eyewitness provided a basic 

description of the defendant. When the officer asked for a more 

specific description, the eyewitness “pointed to her kitchen 

window and said the person she saw breaking into...[the] car 

was standing in the parking lot, next to the police officer.” The 

officers arrested the defendant. Approximately one month later, 

the officers showed the eyewitness a photographic array that 

included a picture of the defendant but the eyewitness was not 

able to identify the perpetrator of the crime. 

ISSUE: Whether a suggestive eyewitness circumstance that 

occurred through no influence of the government 

can amount to a Due Process violation?

HELD: No. The Due Process Clause is reserved as a 

protection against inherent governmental 

misconduct.

DISCUSSION: The Court is very concerned with the 

enormous influence the government has in the pretrial 

eyewitness identification process. A principle of due process is 

286 Fifth Amendment 
that trial courts screen these events to ensure that the 

government has provided a fair method of establishing the 

identity of the offender. However, the Court noted that “[W]e 

have not extended pretrial screening for reliability to cases in 

which the suggestive circumstances were not arranged by law 

enforcement officers.” This is because all prior decisions have 

aimed “to deter police from rigging identification procedures, for 

example, at a lineup, show-up, or photograph array.”

There were reasons to question the accuracy of the eyewitness’ 

identification in this case: the parking lot was dark; the 

defendant was standing next to a police officer; he was the only 

African-American male in the vicinity; and the witness was later 

unable to pick the defendant out of a photographic array. 

However, because the government’s procedures were not 

unnecessarily suggestive, the reliability of this testimony was 

for the jury to consider, not the trial court to suppress. “Only 

where the police employ suggestive identification 

techniques...does the Due Process Clause require a trial court 

to assess the reliability of identification evidence before 

permitting a jury to consider it.”



Simmons v. United States

 390 U.S. 377, 88 S. Ct. 967 (1968)

FACTS: Two unmasked men robbed a bank. Five bank 

employees witnessed the robbery, and on that same day gave 

the FBI written statements. The next morning FBI agents 

obtained and showed separately to each of the witnesses some 

snapshots consisting mostly of group pictures of the 

defendants, and others. Each witness identified the defendant 

as one of the robbers from the pictures.

ISSUE: Whether the use of photographs to identify the 

defendant as the culprit was a deprivation of his 

due process rights?

Fifth Amendment 287
HELD: No. The use of photographs is an effective way to 

identify perpetrators of crime if done so in a fair

manner.

DISCUSSION: The Court came to this determination in light 

of the “totality of the circumstances.” Each case involving 

pretrial identification by photographs has to be considered on 

its own facts. The court will set aside convictions based on 

eyewitness identification at trial on the grounds of prejudice 

only if the pretrial identification procedure was so 

impermissibly suggestive as to give rise to a very substantial 

likelihood of irreparable misidentification. In this case, the use 

of photographic identification by the FBI was necessary: a 

serious felony had been committed; the perpetrators were at 

large; the inconclusive clues led to the defendant; and the 

agents had to determine swiftly if they were on the right track.



Manson v. Brathwaite

 432 U.S. 98, 97 S. Ct. 2243 (1977)

FACTS: An undercover officer purchased heroin from a 

seller through the open doorway of an apartment. The 

transaction took two or three minutes while the officer stood 

within two feet of the seller in a hallway illuminated by natural 

light. The undercover officer described the seller to another 

officer, who suspected the defendant based on this description. 

The suspecting officer left a photograph of the defendant in the 

undercover officer’s office. He viewed it two days later and 

identified it as the picture of the seller. The defendant was 

charged with, and convicted of, possession and sale of heroin.

ISSUE: Whether the photograph tainted the undercover 

officer’s identification of the defendant?

HELD: No. Based on the “totality of the circumstances” 

the eyewitness’ identification of the defendant was 

reliable.

288 Fifth Amendment 
DISCUSSION: Reliability is the linchpin in determining the 

admissibility of identification testimony for identifications 

occurring prior to and after arrest. Reliability depends on the 

“totality of the circumstances.” The factors to be weighed 

against the corrupting effect of the suggestive procedure in 

assessing reliability are whether the witness had an opportunity 

to view the criminal at the time of the crime, the witness’ degree 

of attention, the accuracy of his prior description of the 

criminal, the level of certainty demonstrated at the 

confrontation, and the time between the crime and the 

confrontation. Under the “totality of the circumstances” in this 

case, there does not exist a very substantial likelihood of 

irreparable misidentification. A trained officer with a sufficient 

opportunity to view the suspect, who accurately described him, 

positively identified the defendant’s photograph as that of the 

suspect, and made the photograph identification only two days 

after the crime is reliable.



D. TESTIMONIAL EVIDENCE

Schmerber v. California

 384 U.S. 757, 86 S. Ct. 1826 (1966)

FACTS: The defendant was the apparent driver involved in 

an accident. At the direction of an officer, and without the 

defendant’s consent, a physician at the hospital drew blood 

from the defendant’s body. The chemical analysis of this 

sample indicated that the defendant was intoxicated. At trial, 

the chemical analysis was admitted into evidence against the 

defendant over his objection. Specifically, the defendant 

claimed that the withdrawal of the blood violated his

constitutional protections, including his Fifth Amendment 

privilege against compelled self-incrimination.

ISSUE: Whether the withdrawal of the defendant’s blood, as 

well as the admission of the chemical analysis, 

violated the defendant’s Fifth Amendment privilege 

against compelled self-incrimination?

Fifth Amendment 289
HELD: No. The defendant’s blood does not constitute a 

testimonial admission.

DISCUSSION: The Court held that the Fifth Amendment 

privilege against self-incrimination “protects an accused only 

from being compelled to testify against himself, or otherwise 

provide the State with evidence of a testimonial or 

communicative nature, and that the withdrawal of blood and 

use of the analysis in question did not involve compulsion to 

these ends.” The right against self-incrimination protects a 

suspect’s communications, in whatever form they may take. 

However, the privilege does not protect a suspect from providing 

“real or physical evidence,” such as fingerprints, DNA or blood 

for identification.



United States v. Dionisio

 410 U.S. 1, 93 S. Ct. 764 (1973)

FACTS: A federal grand jury subpoenaed various 

individuals, including the defendant, to obtain voice exemplars 

to compare them to previously recorded conversations. The 

defendant refused to comply, claiming that providing the voice 

exemplars would violate his Fifth Amendment right to be free 

from compelled self-incrimination.

ISSUE: Whether compelling a defendant to provide voice 

exemplars violated the defendant’s Fifth 

Amendment right against self-incrimination?

HELD: No. The sound of a suspect’s voice is not 

testimonial in nature and is not protected by the 

defendant’s Fifth Amendment right against selfincrimination.

DISCUSSION: The privilege against self-incrimination “offers 

no protection against compulsion to submit to fingerprinting, 

photographing, or measurements, to write or speak for 

identification, to appear in court, to stand, to assume a stance, 

290 Fifth Amendment 
to walk, or to make a particular gesture.” The privilege 

prohibits compelling communications or testimony. In this case 

the voice recordings were to be used solely to measure the 

physical properties of the witnesses’ voice, not for the 

communicative content of what was said.



United States v. Mara

 410 U.S. 19, 93 S. Ct. 774 (1973)

FACTS: A grand jury twice subpoenaed the defendant to 

appear and provide handwriting and printing exemplars for 

comparison with documents already in the grand jury’s 

possession. The defendant refused, asserting that requiring 

him to produce the exemplars would violate his Fourth 

Amendment protections. Additionally, because he had not seen 

the documents in the grand jury’s possession, the defendant 

alleged that the government might actually be seeking 

“testimonial” communications (i.e., the contents of the 

handwriting exemplars, as opposed to the physical 

characteristics of his writing) in violation of his Fifth 

Amendment rights.

ISSUE: Whether compelling a defendant to provide 

handwriting exemplars violates the defendant’s 

Fifth Amendment right against self-incrimination?

HELD: No. Compelling a defendant to provide handwriting 

exemplars does not require the defendant to make a 

communicative assertion.

DISCUSSION: The Supreme Court emphasized that the 

Fifth Amendment protection against self-incrimination did not 

protect the production of handwriting exemplars. “If the 

Government should seek more than the physical characteristics 

of the witness’ handwriting - if, for example, it should seek to 

obtain written answers to incriminating questions or a 

signature on an incriminating statement - then, of course, the 

witness could assert his Fifth Amendment privilege against 

Fifth Amendment 291
compulsory self-incrimination.” Here, the grand jury was not 

concerned with the contents of the writings, but rather with the 

physical characteristics of the individual writer.



1. Compelled

Brown v. Mississippi

 297 U.S. 278, 56 S. Ct. 461 (1936)

FACTS: The defendants were convicted of murder. The only 

evidence offered against the defendants were confessions 

obtained from them through various forms of torture. For 

example, one of the defendants was repeatedly hung by the 

neck from a tree in an attempt to get him to confess. He 

ultimately confessed to the crime only after he was beaten and 

threatened with continued beatings. Two other defendants 

confessed only after they were laid over chairs and had their 

backs cut to pieces with a leather strap.

ISSUE: Whether the defendants’ convictions, which rested 

solely upon confessions secured by violence, were 

valid under the due process clause of the 

Fourteenth Amendment?

HELD: No. The convictions were not obtained in a 

fundamentally fair way.

DISCUSSION: While states are allowed some latitude in 

regulating the procedures of their courts, they are still required 

to comply with the due process clause of the Fourteenth 

Amendment. “The rack and torture chamber may not be 

substituted for the witness stand.” In this case, the methods 

used by the government to obtain the confessions were so 

egregious that they deprived the defendants of their right to the 

due process of law guaranteed by the Fourteenth Amendment. 

As stated by the Court: “It would be difficult to conceive of 

methods more revolting to the sense of justice than those taken 

to procure the confessions” in this case.

292 Fifth Amendment 


Andresen v. Maryland

 427 U.S. 463, 96 S. Ct. 2737 (1976)

FACTS: The defendant was being investigated for fraud. 

Officers obtained a search warrant to search his office for 

business records containing statements made by the defendant. 

Various business records, some of which contained statements 

made by the defendant, were found and used in a criminal trial 

against him.

ISSUE: Whether the defendant’s business records were 

obtained in violation of his Fifth Amendment right 

to be free from self-incrimination?

HELD: No. The government neither compelled the 

defendant to make the statements nor compelled 

him to bring the statements to the courthouse for 

use against him.

DISCUSSION: The Fifth Amendment serves as a prohibition 

against compelling individuals to bear witness against himself 

or herself. The Court noted that the defendant was not 

compelled to do or say anything. The government did not 

compel the defendant to create the records, bring the records to 

the criminal courtroom, or identify the records as his property. 

The Court quoted Mr. Justice Holmes in stating, “A party is 

privileged from producing the evidence but not from its 

production,” cited in Johnson v. United States, 228 U.S. 457 

(1913).



United States v. Doe

 465 U.S. 605, 104 S. Ct. 1237 (1984)

FACTS: The defendant owned several sole proprietorships. 

During a grand jury investigation of corruption, the grand jury 

served subpoenas on the defendant, seeking the production of 

Fifth Amendment 293
voluntarily prepared business records of the sole 

proprietorships. The defendant moved to quash the subpoenas 

on two grounds. First, he claimed that the subpoenaed records 

were privileged under the Fifth Amendment. Second, he 

claimed that the act of producing the requested documents was 

privileged under the Fifth Amendment.

ISSUES: 1. Whether voluntarily created business records 

are protected by the Fifth Amendment 

privilege against self-incrimination?

2. Whether the act of compelling the production 

of the requested business records is protected 

by the Fifth Amendment privilege against 

self-incrimination?

HELD: 1. No. Business records that are voluntarily 

created are not protected by the Fifth 

Amendment privilege against selfincrimination as they were not compelled in 

their creation.

2. Yes. The act of compelling the production of 

requested business records (by subpoena) is 

protected by the Fifth Amendment privilege 

against self-incrimination.

DISCUSSION: The Fifth Amendment protects the defendant 

only from compelled self-incrimination. However, “where the 

preparation of business records is voluntary, no compulsion is 

present.” In other words, “if the party asserting the Fifth 

Amendment privilege has voluntarily compiled the document, 

no compulsion is present and the contents of the document are 

not privileged.”

While the contents of the subpoenaed business records are not 

privileged under the Fifth Amendment, the act of producing the 

records is privileged. By producing the documents requested in 

the subpoena, the defendant is admitting the document’s 

existence, that the defendant has possession or control over the 

294 Fifth Amendment 
document, and that the documents being turned over are 

authentic. These acts “may have testimonial aspects and an 

incriminating effect.” However, the government could compel 

the defendant to produce the documents by providing him with 

“use” immunity, pursuant to 18 U.S.C. §§ 6002-6003, or secure 

them through the use of a search warrant.



United States v. Hubbell

 530 U.S. 27, 120 S. Ct. 2037 (2000)

FACTS: The defendant pled guilty to charges of mail fraud 

and tax evasion. The plea agreement required the defendant to 

provide the prosecution with “full, complete, accurate, and 

truthful information” about matters relating to another 

investigation. The subsequent prosecution of the defendant 

resulted from the government’s determination that the 

defendant had violated that plea agreement. While 

incarcerated, the defendant was served with a grand jury 

subpoena calling for the production of eleven broad categories 

of documents. Subsequently, the defendant appeared before 

the grand jury and invoked his Fifth Amendment privilege 

against self-incrimination. In response to questioning, the 

defendant refused “to state whether there [were] documents 

within [his] possession, custody, or control responsive to the 

subpoena.” He was then granted “use” immunity under 18

U.S.C. § 6002, and produced documents related to the 

subpoena. The contents of the documents provided the 

prosecutor with the information that led to a second 

prosecution of the defendant.

ISSUES: 1. Whether the Fifth Amendment privilege 

against self-incrimination protects a witness 

from being compelled to disclose the 

existence of incriminating documents that 

the government is unable to describe with 

reasonable particularity?

Fifth Amendment 295
2. Whether “use” immunity under 18 U.S.C. § 

6002 prevents the government from using 

information produced by a witness pursuant 

to a grant of immunity in preparing criminal 

charges against that witness?

HELD: 1. Yes. The constitutional privilege against selfincrimination protects the target of a grand 

jury investigation from being compelled to 

answer questions designed to elicit 

information about the existence of sources of 

potentially incriminating evidence.

2. Yes. The “derivative use” of the testimonial 

act of producing the records is covered by the 

immunity granted under 18 U.S.C. § 6002.

DISCUSSION: The Court held that “the act of production” 

itself may implicitly communicate “statements of fact.” By 

“producing documents in compliance with a subpoena, the 

witness would admit that the papers existed, were in his 

possession or control, and were authentic.” Here, the answers 

to the prosecutor’s questions and the act of production could 

certainly communicate information about the existence, 

custody, and authenticity of the documents. In addition, the 

Fifth Amendment protection extends to compelled statements 

that lead to the discovery of incriminating evidence, even 

though the statements themselves are not incriminating and 

are not introduced into evidence. It is undeniable that 

providing a catalog of existing documents fitting within any of 

the eleven broadly worded subpoena categories could provide a 

prosecutor with a “lead to incriminating evidence” or “a link in 

the chain of evidence needed to prosecute.” Additionally, it was 

necessary for the defendant to make extensive use of “the 

contents of his own mind” in identifying the hundreds of 

documents responsive to the requests in the subpoena.



296 Fifth Amendment 
United States v. Balsys

 524 U.S. 666, 118 S. Ct. 2218 (1999)

FACTS: The defendant was a resident alien who obtained 

admission to the United States in 1961. In his application for 

admission, he stated that he had served in the Lithuanian army 

between 1934 and 1940, and had lived in hiding in Lithuania 

between 1940 and 1944. Further, he swore that the 

information was true, and signed a statement of understanding 

that if his application contained any false information or 

materially misleading statements, or concealed any material 

fact, he would be subject to criminal prosecution and 

deportation. The Office of Special Investigations (OSI), which 

was created to institute denaturalization and deportation 

proceedings against suspected Nazi war criminals, began 

investigating the defendant to determine if he had participated 

in Nazi persecution during World War II. If proven, this 

participation could have resulted in the defendant being 

deported. Pursuant to a subpoena issued by OSI, the 

defendant appeared to testify at a deposition, but refused to 

answer questions about his wartime service and his 

immigration to the United States. He invoked his Fifth 

Amendment right against compelled self-incrimination, claiming 

that his answers could subject him to criminal prosecution by 

Lithuania, Israel, and Germany.

ISSUE: Whether an individual can claim the Fifth 

Amendment privilege against self-incrimination 

based upon fear of prosecution by a foreign nation?

HELD: No. The Fifth Amendment privilege against selfincrimination may only be based upon fear of 

prosecution within the United States.

DISCUSSION: The self-incrimination clause of the Fifth 

Amendment provides a privilege against self-incrimination in 

“any criminal case.” This means that an individual has a right 

against compelled self-incrimination if what he says “could be 

used in a criminal proceeding against him brought by the 

Government of either the United States or one of the States.” 

Fifth Amendment 297
However, in this case, the defendant did not invoke the privilege 

based upon a fear of prosecution by the United States or one of 

the states. The Court held that possible criminal prosecution 

by a foreign government is not subject to our constitutional 

guarantees and, therefore, is beyond the scope of the Fifth 

Amendment’s protections.



2. Holder of the Privilege

Braswell v. United States

 487 U.S. 99, 108 S. Ct. 2284 (1988)

FACTS: The defendant incorporated a business in which he 

was the sole shareholder. The defendant moved to quash a 

grand jury subpoena for the corporate records on the basis that 

the act of producing the records would violate his Fifth 

Amendment right to be free from self-incrimination.

ISSUE: Whether a sole shareholder of a corporation, as 

custodian of the records, may resist a subpoena for 

corporate records on the ground that the act of 

production would incriminate him in violation of his 

Fifth Amendment rights?

HELD: No. Corporations do not enjoy the Fifth 

Amendment self-incrimination protection.

DISCUSSION: Corporations do not enjoy a Fifth Amendment 

privilege. The Fifth Amendment protects only private papers 

and records. However, the custodian of corporate records, 

regardless of how small the corporation may be, can claim a 

privilege.



298 Fifth Amendment 
Couch v. United States

 409 U.S. 322, 93 S. Ct. 611 (1973)

FACTS: The defendant turned over various business and 

tax records to her accountant for several years. The IRS 

summoned the accountant to bring these records to a court 

proceeding. The accountant, ignoring the summons, turned the 

records over to the defendant’s attorney.

ISSUE: Whether a defendant may invoke a Fifth 

Amendment privilege against self-incrimination to 

prevent the production of her business and tax 

records in possession of her accountant?

HELD: No. Since the defendant was not in possession of 

the records, she could not object to the production 

by her accountant. The defendant was not 

compelled to do or say anything.

DISCUSSION: The Fifth Amendment privilege is a personal 

privilege that adheres to the person and not to the information 

that may incriminate. A person cannot be compelled to produce 

information but they cannot prevent the production of 

incriminating documents that are in the hands of others

through the self-incrimination protection.



Doe v. United States

 487 U.S. 201, 108 S. Ct. 2341 (1988)

FACTS: The defendant was the target of a federal grand jury 

investigation. He was subpoenaed to produce records 

concerning accounts in foreign banks. However, the defendant 

invoked his Fifth Amendment privilege against selfincrimination when questioned about the existence or location 

of additional bank records. The foreign banks refused to 

comply with subpoenas to produce any account records without 

the customer’s consent. The government sought a court order 

directing the defendant to sign a consent form authorizing the 

Fifth Amendment 299
foreign banks to disclose the defendant’s records.

ISSUE: Whether a court can compel a target of a grand jury 

investigation to authorize foreign banks to disclose 

records of his accounts?

HELD: Yes. However, the court may not require the 

defendant to explain the contents of these records 

or acknowledge their existence.

DISCUSSION: The Supreme Court held that a court order 

compelling the target of the grand jury investigation to 

authorize foreign banks to disclose records of his accounts, 

without identifying those documents or acknowledging their 

existence does not violate the target’s Fifth Amendment privilege 

against self-incrimination. The consent form itself was not 

testimonial in nature. In order to be “testimonial,” an accused’s 

oral or written communication or act of production must itself, 

explicitly or implicitly, relate a factual assertion or disclose 

information. The privilege may be asserted only to resist 

compelled explicit or implicit disclosures of incriminating 

information.



Fisher v. United States

 425 U.S. 391, 96 S. Ct.1569 (1976)

FACTS: In each of these cases, the defendants were under 

investigation for civil or criminal liability under the federal 

income tax laws. The defendants retrieved documents prepared 

by their respective tax accountants and transferred the 

documents to their respective attorneys to assist in their

defenses. Subsequently, the government served summonses on 

the attorneys directing them to produce the documents, who 

refused to comply. The government then brought enforcement 

actions.

ISSUE: Whether documents delivered by the defendant to 

his attorney are protected by the self-incrimination 

300 Fifth Amendment 
clause?

HELD: No. Compelled production of the documents from 

the attorneys does not implicate whatever Fifth 

Amendment privilege the defendants may have 

enjoyed themselves.

DISCUSSION: The Fifth Amendment may have precluded a 

subpoena from compelling the defendants to produce the 

documents while the documents were in their possession. 

However, enforcing the subpoena against another does not 

violate this privilege. Such action in no way would compel the 

defendant to be a “witness” against himself. See Couch v. 

United States. The fact that the attorneys were agents of the 

taxpayers does not change this result.

The attorney-client privilege applies to documents in the hands 

of a client that would have been privileged in the hands of the 

attorney. However, the Fifth Amendment would not protect the 

defendants from producing these documents. The government 

could have secured them through the use of a search warrant. 

Production of the documents themselves does not involve 

incriminating testimony. The Fifth Amendment does not 

prohibit the compelled production of all incriminating evidence. 

It only prohibits compelling the accused to make a testimonial 

communication that is incriminating. However incriminating 

the contents of the documents might be, the act of delivering 

them to the government under order does not involve 

testimonial self-incrimination.



Bellis v. United States

 417 U.S. 85, 94 S. Ct. 2179 (1974)

FACTS: During the defendant’s tenure as a law partner in 

Bellis, Kolsby & Wolf, the partnership’s financial records were 

maintained in his office. After the partnership dissolved, the 

defendant left to join another law firm. The partnership records 

remained in the partnership’s previous location for 

Fifth Amendment 301
approximately three years. Later, the defendant’s secretary, 

acting at the defendant’s request, removed the records and 

brought them to his new office. Approximately two months 

later, the defendant was subpoenaed by a grand jury and 

ordered to appear and testify and to bring with him “all 

partnership records currently in your possession for the 

partnership of Bellis, Kolsby & Wolf for the years 1968 and 

1969.” The defendant refused to produce the partnership’s 

records, claiming his Fifth Amendment right against selfincrimination.

ISSUE: Whether a defendant who holds partnership 

records in a representative capacity has a Fifth 

Amendment privilege against self-incrimination to 

avoid producing those partnership records, where 

the records might incriminate him personally?

HELD: No. The self-incrimination clause is a personal 

right, not one belonging to an artificial entity such 

as a partnership.

DISCUSSION: “It has long been established that the Fifth 

Amendment privilege against compulsory self-incrimination 

protects an individual from compelled production of his 

personal papers and effects as well as compelled oral 

testimony.” This protection may extend to the business records 

of a sole proprietor or sole practitioner. However, the Fifth 

Amendment right against compulsory self-incrimination is a 

purely private right that cannot be invoked by any artificial 

entity, such as a corporation or a partnership. “It follows that 

an individual acting in his official capacity on behalf of the 

organization may likewise not take advantage of his personal 

privilege.” Instead, “the papers and effects which the privilege 

protects must be the private property of the person claiming the 

privilege, or at least in his possession in a purely personal 

capacity.” This rule applies even where the records sought 

might personally incriminate the individual who holds them 

provided that the records sought are those of the organization 

and not the individual. Here, it was clear, based on the nature 

of the records sought, that they constituted records of the 

302 Fifth Amendment 
partnership, not the personal records of the defendant. The 

defendant had no ownership rights in these records, and could 

not use the records for anything other than partnership 

purposes.



E. VOLUNTARY

Rogers v. Richmond

 365 U.S. 534, 81 S. Ct. 735 (1961)

FACTS: The defendant was arrested for robbery. The 

officers found a weapon on him that was connected to a 

murder. The defendant denied committing the murder for the 

first six hours of the interview. Then, within the hearing of the 

defendant, an officer pretended to place a phone call directing 

other officers to prepare to bring the defendant’s wife in for 

questioning. The defendant remained silent from that point on 

until he was told by the officer that his wife was about to be 

taken into custody. The defendant then confessed. The next 

day, the local Coroner directed that the defendant be held 

incommunicado at the jail. When the defendant’s lawyer tried 

to visit the defendant, he was turned away. The defendant was 

then taken to the Coroner’s office where he was placed under 

oath and confessed again. In ruling on the admissibility of the 

defendant’s confessions, the trial judge took into account the 

probable truth or falsity of the confessions in determining 

whether or not they had been voluntarily given. The statements 

were admitted into evidence and the defendant was convicted of 

murder.

ISSUE: Whether the correct legal standard in determining 

the admissibility of the defendant’s statements is 

the likelihood of truthfulness?

HELD: No. In determining the voluntariness of a 

confession, the correct legal standard is whether 

the government’s conduct was such as to overbear 

Fifth Amendment 303
the defendant’s will to resist.

DISCUSSION: The Court stated that the correct standard is 

“whether the behavior of the State’s law enforcement officials 

was such as to overbear the petitioner’s will to resist and bring 

about confessions not freely self-determined....” This question 

must be answered without regard to whether the defendant was 

speaking truthfully when he made the confession. The Court 

reaffirmed its holdings in previous decisions that “convictions 

following the admission into evidence of confessions which are 

involuntary, i.e., the product of coercion, either physical or 

psychological, cannot stand.” This is not because the 

confessions are unlikely to be true, but because due process of 

law requires the government to establish a defendant’s guilt “by 

evidence independently and freely secured, and may not by 

coercion prove its charge against an accused out of his own 

mouth.”



Lynumn v. Illinois

 372 U.S. 528, 83 S. Ct. 917 (1963)

FACTS: Officers watched a confidential informant enter the 

defendant’s apartment where he allegedly engaged in a 

narcotics deal with the defendant. The government arrested the 

defendant outside her apartment for selling marijuana and took 

her back inside to question her. While inside the apartment, 

the defendant initially denied she had sold marijuana. Later

she confessed to the crime after being told by the officers that 

state aid to her infant children would be cut off and her 

children taken from her if she did not “cooperate.” Specifically, 

the defendant was told that she “had better do what she was 

told if she wanted to see her kids again.” These threats were 

made while police officers and the confidential informant 

surrounded the defendant. The defendant had no previous 

criminal experiences; had no friend or adviser to whom she 

could speak; and had no reason to believe that the government 

did not have the power to carry out the threats they were 

making. The confession was used to convict the defendant at 

304 Fifth Amendment 
her trial.

ISSUE: Whether the defendant’s statement was voluntarily 

given?

HELD: No. The government cannot use statements 

obtained through overcoming the defendant’s will to 

remain silent through coercion.

DISCUSSION: In determining whether a defendant is 

“voluntarily” giving a statement, the question is “whether the 

defendant’s will was overborne at the time he confessed.” The 

statement must be “the product of a rational intellect and a free 

will.” Looking at the totality of the circumstances, the Court 

held that the statement given by the defendant was not given 

voluntarily.



Colorado v. Connelly

 479 U.S. 157, 107 S. Ct. 515 (1986)

FACTS: The defendant approached an officer and stated 

that he had committed murder and wanted to discuss it. The 

officer advised the defendant of his Miranda rights. The 

defendant said that he understood his rights but still wanted to 

talk about the murder. Shortly thereafter, a detective arrived 

and again advised the defendant of his rights. After the 

defendant responded that he had traveled all the way from 

Boston to confess to the murder, he was taken to police 

headquarters. He then confessed and pointed out the exact 

location of the murder. Subsequent psychiatric evaluation 

revealed that defendant was following the “voice of God” in 

confessing to the murder.

ISSUE: Whether the defendant’s waiver of his Miranda

rights and his statements were coerced?

HELD: No. Coercion must originate in the government’s 

actions.

Fifth Amendment 305
DISCUSSION: Voluntariness of a waiver of the privilege of 

the Fifth Amendment depends upon absence of governmental 

overreaching. The sole concern of the Fifth Amendment is 

governmental coercion. The Supreme Court is not concerned 

with moral and psychological pressures to confess coming from 

sources other than government coercion. The statements made 

by the defendant are admissible. The government need prove 

only by a preponderance of the evidence that the defendant 

knowingly, voluntarily and intelligently waived his Miranda

rights.



Arizona v. Fulminante

 499 U.S. 279, 111 S. Ct. 1246 (1991)

FACTS: After the defendant’s stepdaughter was murdered 

in Arizona, he left the state. He was convicted of an unrelated 

crime and was incarcerated in prison in New York. There, 

Sarivola, a fellow inmate who was also a paid informant of the 

government, befriended him. Sarivola told the defendant that 

he knew the defendant was getting harsh treatment from other 

inmates because of a rumor he was a child murderer. Sarivola 

offered him protection in exchange for the truth. The defendant 

admitted to Sarivola that he had killed his stepdaughter, and he 

provided details. The defendant made the same confession to 

Sarivola’s wife. Subsequently, he was indicted for murder.

ISSUE: Whether the defendant’s confession was coerced?

HELD: Yes. The confession was the result of mental 

coercion.

DISCUSSION: The Court reasoned that the defendant was 

motivated to confess by a fear of physical violence, absent 

protection from a government informant. The Court found that 

a credible threat of physical violence is sufficient to support a 

finding that the subsequent confession is unreliable.



306 Fifth Amendment 
Beecher v. Alabama

 408 U.S. 234, 92 S. Ct. 2282 (1972)

FACTS: The defendant made a series of incriminating 

statements after being threatened by various government 

authorities. In a 1967 decision, the Supreme Court rejected the 

government’s use of those statements from the point of his 

arrest to written statements he made five days later. The Court 

held that the “stream of events” was such that the defendant 

did not make the statements voluntarily. Nonetheless, the 

government retried the defendant with the use of additional 

statements the defendant made to an attending physician. One 

hour after his arrest, the defendant was taken to a hospital for 

treatment for a gunshot wound, which required two large 

morphine injections. Within the presence of the attending 

physician but not the officers, the defendant made several 

incriminating statements, presumably while under the influence 

of the morphine injections.

ISSUE: Whether the statements made to the attending 

physician were made voluntarily?

HELD: No. The defendant’s statements were made during 

the “stream of events” that had been prompted by 

government coercion.

DISCUSSION: The Court held that the statements made to 

the attending physician were a part of the “stream of events” 

that was involuntary in nature. This “stream of events” was so 

infected with gross coercion that the Court did not feel 

comfortable that any statements made under these 

circumstances were voluntary. The Due Process Clause 

demands such inherently untrustworthy evidence to be 

excluded from the government’s use.



Fifth Amendment 307
Haynes v. Washington

 373 U.S. 503, 83 S. Ct. 1336 (1963)

FACTS: The defendant was arrested for robbery. The 

officers took him to the station house and questioned him about 

the crime. The defendant asked to call either his wife or his 

attorney. The police officers told him that he could do so once 

he had “cooperated.” The defendant then made several 

incriminating statements.

ISSUE: Whether the defendant’s statements were 

voluntarily made?

HELD: No. The defendant’s statements were made in an 

atmosphere dominated by substantial coercion.

DISCUSSION: The test of admissibility of a suspect’s 

statement is whether it was made freely, voluntarily and 

without compulsion or inducement of any sort. The issue of 

coercion or improper inducement can only be determined by 

examining “all the attendant circumstances,” or, the “totality of 

the circumstances.” As the suspect had initially resisted giving 

any kind of statement, and only made statements after repeated 

denials of his request to contact his wife or attorney, the Court 

held that the defendant did not voluntarily make the 

statements.



Townsend v. Sain

 372 U.S. 293, 83 S. Ct. 745 (1963)

FACTS: The defendant, a confirmed heroin addict, was 

arrested for his suspected involvement in a murder. When 

questioned, he denied any involvement. Several hours later the 

defendant complained of withdrawal sickness. A physician was 

summoned and administered a dosage of Phenobarbital and 

hyoscine. The doctor also gave the defendant four or five 

tablets of Phenobarbital to combat withdrawal symptoms in the 

future. After the doctor left, an officer and a state’s attorney 

308 Fifth Amendment 
questioned the defendant. The defendant gave a complete 

confession to the murder. The defendant later alleged that 

these drugs had the effect of a “truth serum.” The officers 

testified they were unaware of the potential effects of the 

doctor’s treatment.

ISSUE: Whether the confession was voluntarily made?

HELD: No. Courts must consider the mental state of a 

person who makes statements before considering 

their voluntariness.

DISCUSSION: Statements are not voluntary if the 

individual’s will is overborne, or not the product of his rational 

intellect or free will. The Court stated that coercion could take 

place either through physical or psychological pressure. 

Factors that play a role in determining psychological pressure 

include the mental competency, the youth or inexperience, or 

the effects drugs have on the suspect. It was immaterial to the 

Court that the officers did not know of the potential “truth 

serum” characteristics of the medication administered to the 

suspect. “Any questioning by officers which in fact produces a 

confession which is not the product of a free intellect renders 

that confession inadmissible.”



Lego v. Twomey

 404 U.S. 477, 92 S. Ct. 619 (1972)

FACTS: The defendant confessed to committing armed 

robbery. The confession was included at trial. The defendant 

denied making the confession voluntarily. The state law 

provided that a challenged confession could be admitted into 

evidence if, at a hearing outside the presence of the jury, the 

judge found it voluntary by a preponderance of the evidence.

ISSUE: Whether the standard of proof for voluntariness of 

confessions is a preponderance of the evidence?

Fifth Amendment 309
HELD: Yes. Proof of the voluntariness of a confession by a 

preponderance of the evidence is constitutionally 

adequate.

DISCUSSION: When the government seeks to use a 

confession challenged as involuntary, the defendant is entitled 

to a reliable and clear-cut determination that the confession 

was in fact voluntarily rendered. The Court held that this is 

accomplished by requiring the government to prove at least by a 

preponderance of the evidence that the confession was 

voluntary. The exclusion of unreliable confessions is not the 

purpose of a voluntariness hearing. The sole issue in such a 

hearing is whether a confession was coerced.



Spano v. New York

 360 U.S. 315, 79 S. Ct. 1202 (1959)

FACTS: A foreign-born man, age 25, was a suspect in a 

killing. He had no previous criminal history or experience with 

official interrogation. He had only six months of high school 

education and a history of emotional instability. The defendant 

was questioned by officials for nearly eight straight hours, long 

into the night, before he confessed. The defendant repeatedly 

refused to answer questions and even requested his attorney. 

During the interrogation, the officers used a “childhood friend” 

of the defendant who had become a police officer. This officer 

told the suspect that the situation had gotten the officer in 

trouble and that his job was in jeopardy. He played up the 

terrible effect this would have on the officer’s family. At almost 

sunrise, the government obtained the final pieces of the 

defendant’s confession. 

ISSUE: Whether the suspect’s statement was voluntarily 

given?

HELD: No. The suspect’s will was overborne by official 

pressure, fatigue, and sympathy from deception, in 

violation of the Due Process Clause of the 

310 Fifth Amendment 
Fourteenth Amendment.

DISCUSSION: In this pre-Miranda case, the Court’s focus 

was on the voluntariness of the statements made by the 

suspect. Given the tactics used by the officers (inducing false 

sympathy, lengthy interrogation), and the vulnerability of their 

somewhat unstable suspect, the Court determined that the 

statement was not voluntary and should not have been 

admitted at trial. The Court looked at all the facts taken 

together in reaching its holding that the statement violated Due 

Process guarantees. 



F. IMMUNITY

Murphy et. al. v. Waterfront Commission of New York Harbor

 378 U.S. 52, 84 S. Ct. 1594 (1964)

FACTS: The defendants were subpoenaed to testify in front 

of the Waterfront Commission of New York Harbor. When they 

refused to answer questions asked of them, they were granted 

immunity from prosecution under the laws of both New Jersey 

and New York. They still refused to testify, contending that 

their answers might tend to incriminate them under federal law, 

to which the grant of immunity did not extend. They were then 

held in civil and criminal contempt.

ISSUE: Whether a state can compel a witness, whom it has 

immunized from prosecution under its laws, to give 

testimony which might then be used to convict him 

of a crime in federal court?

HELD: No. The defendant’s right to remain silent is a 

protection against both federal and state 

prosecution.

DISCUSSION: The Court looked to the policies and purposes 

of the Fifth Amendment right to be free from compulsory selfincrimination. “Most, if not all, of these policies and purposes 

Fifth Amendment 311
are defeated when a witness ‘can be whipsawed into 

incriminating himself under both state and federal law even 

though’ the constitutional privilege against self-incrimination is 

applicable to each.” The Fifth Amendment right against 

compulsory self-incrimination protects a “state witness against 

incrimination under federal as well as state law and a federal 

witness against incrimination under state as well as federal 

law.” Accordingly, the Court held that “a state witness may not 

be compelled to give testimony which may be incriminating 

under federal law unless the compelled testimony and its fruits 

cannot be used in any manner by federal officials in connection 

with a criminal prosecution against him.”



Kastigar v. United States

 406 U.S. 441, 92 S. Ct. 1653 (1972)

FACTS: The defendants were subpoenaed to testify before a 

federal grand jury. Anticipating that the defendants would 

invoke their Fifth Amendment right against self-incrimination, 

the government sought an order to compel the defendants to 

testify under a grant of immunity pursuant to 18 U.S.C. §§ 

6002-6003. The immunity granted to the defendants provided 

them protection from the use of their compelled testimony in 

subsequent criminal proceedings, as well as immunity from the 

use of evidence derived from the testimony (use and derivative 

use immunity) but not from the crimes themselves. The order 

was granted over the objection of the defendants. When the 

defendants appeared before the grand jury, all invoked their 

privilege against self-incrimination and refused to testify. The 

District Court held the defendants in contempt and placed them 

in custody until such time as they answered the grand jury’s 

questions or the grand jury’s term expired.

ISSUES: 1. Whether the government can compel 

testimony from an unwilling witness who 

invokes his Fifth Amendment privilege 

against self-incrimination by granting the 

witness immunity?

312 Fifth Amendment 
2. Whether the government must grant use or 

transactional immunity to compel testimony?

HELD: 1. Yes. The government can compel testimony 

from an unwilling witness who invokes his 

Fifth Amendment privilege against selfincrimination by granting the witness 

immunity.

2. No. The grant of use immunity to the witness 

is all that the Fifth Amendment guarantees.

DISCUSSION: The power to compel individuals to testify 

before grand juries and in courts is well settled. However, this 

power is not absolute and is subject to a variety of exemptions, 

most notably the Fifth Amendment privilege against selfincrimination. In this case, the defendants asserted that, at a 

minimum, a statute must afford them full transactional 

immunity in order to comply with the Fifth Amendment 

privilege. The Court rejected this argument, stating “that such 

immunity from use and derivative use is coextensive with the 

scope of the privilege against self-incrimination, and therefore is 

sufficient to compel testimony over a claim of the privilege.” 

Transactional immunity, on the other hand, provides a 

defendant a much broader protection than does the Fifth 

Amendment privilege, in that a defendant is afforded full 

immunity from prosecution. “While a grant of immunity must 

afford protection commensurate with that afforded by the Fifth 

Amendment privilege, it need not be broader.” In sum, the 

Court concluded “the immunity provided by 18 U.S.C. § 6002 

leaves the witness and the prosecutorial authorities in 

substantially the same position as if the witness had claimed 

the Fifth Amendment privilege. The immunity therefore is 

coextensive with the privilege and suffices to supplant it.”



Fifth Amendment 313
Ohio v. Reiner

 532 U.S. 17, 121 S. Ct. 1252 (2001)

FACTS: The defendant was charged with the death of his 

child. He alleged that abuse by the family’s babysitter caused 

his child’s death. Upon advice of counsel, the babysitter 

invoked her privilege against self-incrimination, although she 

denied any wrongdoing. The trial court granted transactional 

immunity for the babysitter’s testimony, the jury was advised of 

the grant of immunity, and the babysitter testified that she had 

nothing to do with the child’s injuries.

ISSUE: Whether the babysitter’s denial of culpability 

precluded any self-incrimination privilege, so that 

the granting of immunity prejudiced the defendant 

by effectively telling the jury that the babysitter was 

innocent?

HELD: No. The babysitter had a reasonable apprehension 

that her answers could have been used to 

incriminate her, and, therefore, had a right to 

invoke her self-incrimination protection.

DISCUSSION: The Supreme Court held that, while the selfincrimination protection only extended to witnesses who had 

reasonable cause to apprehend danger from a direct answer, 

the babysitter’s expression of innocence did not by itself 

eliminate the babysitter’s privilege. It was reasonable for the 

babysitter to fear that answers to possible questions might tend 

to incriminate her, despite her asserted innocence.

The witness’ assertion of innocence did not, by itself, preclude 

her invocation of the privilege against self-incrimination. 

Therefore, the court’s grant of immunity to the witness was not 

prejudicial. In view of the defense accusation that the witness 

committed the child abuse, the witness had reasonable ground 

to fear that answers might tend to incriminate her.



314 Fifth Amendment 
G. MIRANDA v. ARIZONA

Miranda v. Arizona

 384 U.S. 436, 86 S. Ct. 1602 (1966)

FACTS: The defendant was arrested at his home for a rape 

and taken to the police station. While there, the victim 

identified him as the rapist. The police took the defendant to an 

interrogation room, where he was questioned by two officers. 

These officers later testified at trial that the defendant was not 

advised that he had a right to have an attorney present during 

his questioning. The officers also testified that the defendant 

was not told that he had a right to be free from selfincrimination. The defendant signed a statement that 

contained a pre-prepared clause stating that he had “full 

knowledge” of his “legal rights.” At trial, the written confession 

was admitted against the defendant and he was convicted.

ISSUE: Whether the written confession given by the 

defendant was obtained in violation of the 

defendant’s Fifth Amendment right to be free from 

compulsion?

HELD: Yes. The defendant has a right to know of his Fifth 

Amendment privilege against compulsory selfincrimination before he can effectively waive it.

DISCUSSION: The Court held that “the prosecution may not 

use statements, whether exculpatory or inculpatory, stemming 

from custodial interrogation of the defendant unless it 

demonstrates the use of procedural safeguards effective to 

secure the privilege against self-incrimination.” The Court 

defined a “custodial interrogation” as “questioning initiated by 

law enforcement officers after a person has been taken into 

custody or otherwise deprived of his freedom of action in any 

significant way [underline added].” The procedural safeguards 

required by the Court consisted of four warnings that must be 

provided to the suspect before a custodial interrogation can 

take place:

Fifth Amendment 315
1) The suspect must be notified that he has the right 

to remain silent.

2) The suspect must be notified that any statement 

made may be used as evidence against him.

3) That the suspect has the right to consult with a 

lawyer and have the lawyer present during the 

questioning.

4) The suspect must be informed that if he cannot 

afford to retain a lawyer, one will be appointed to 

represent him prior to any questioning.

Once these warnings have been given, then and only then, can 

the individual voluntarily, knowingly, and intelligently waive 

these rights. However, “if the individual indicates in any 

manner that he wishes to remain silent, the interrogation must 

cease.” Similarly, “if the individual states that he wants an 

attorney, the interrogation must cease until an attorney is 

present.”



Dickerson v. United States

 530 U.S. 428, 120 S. Ct. 2326 (2000)

FACTS: The defendant was arrested for bank robbery. He

made several incriminating statements in violation of his 

Miranda protections. The government attempted to admit these 

statements into evidence through the use of a federal statute 

enacted after the Miranda v. Arizona decision that permitted the 

introduction of statements into evidence solely on whether they 

were made voluntarily. An appellate court allowed the 

government to use the federal statute because it did not disrupt 

a constitutional standard.

ISSUE: Whether Miranda warnings are constitutional in 

nature?

316 Fifth Amendment 
HELD: Yes. The Supreme Court held that the Miranda

warnings are a constitutional rule and may not be 

reduced by Congressional intervention.

DISCUSSION: In Miranda v. Arizona, the Court set out 

“concrete constitutional guidelines for law enforcement agencies 

and courts to follow.” Congress’ enactment of the federal 

statute was an effort to overturn the ruling of Miranda. In 

certain circumstances, this is acceptable. “Congress retains the 

ultimate authority to modify or set aside any judicially created 

rules of evidence and procedure that are not required by the 

Constitution.” However, “Congress may not legislatively 

supersede our decisions interpreting and applying the 

Constitution.”

Here, the Court noted that the history of Miranda is that it had 

constitutional dimension as its interpretations had consistently 

been applied to the states. The Court noted that it has no 

“supervisory power over the courts of the several States.” The 

Supreme Court’s “authority is limited to enforcing the 

commands of the United States Constitution.” As the statute 

relied upon by the government does not provide the full 

protections found in the Miranda decision, that statute is 

unconstitutional. The Court explicitly rejected the notion of 

overruling the Miranda decision as it “has become embedded in 

routine police practice to the point where the warnings have 

become part of our national culture.”



Florida v. Powell

 559 U.S. 50, 130 S. Ct. 1195 (2010)

FACTS: Police arrested the defendant and read him a 

Miranda warning prior to questioning. He waived his rights and 

made criminal admissions. The warning used included the 

following, “You have the right to talk to a lawyer before 

answering any of our questions” and “[y]ou have the right to use 

any of these rights at any time you want during this interview.” 

Fifth Amendment 317
ISSUE: Whether the warning language used adequately 

informed the defendant of his right to have his 

attorney present during questioning, as required by 

Miranda?

HELD: Yes. The warning requirements are satisfied when 

the language reasonably conveys to the suspect his 

rights as required by Miranda.

DISCUSSION: The rights that are required under Miranda to 

be given in warnings to a custodial suspect cannot be varied, 

and must include the right to have an attorney present during 

any questioning. However, the words used to communicate the 

information may be varied, so long as they adequately inform 

the suspect the essential rights required under Miranda. The 

warning that was used did not omit any of the required rights 

under Miranda. While not in the clearest possible language, 

taken together, the words used did reasonably convey that an 

attorney could be present not only at the outset, but at all times 

during the interview.



1. Police

Illinois v. Perkins

 496 U.S. 292, 110 S. Ct. 2394 (1990)

FACTS: The police suspected the defendant had information 

concerning a murder. They placed an undercover officer in a jail 

cellblock with the defendant when he was incarcerated on 

unrelated charges. The officer engaged the defendant in 

conversation about plans to escape. When the officer asked 

him if he had ever killed anyone, the defendant made 

inculpatory statements implicating himself in the murder. The 

defendant was then charged with the murder. The defendant 

filed a motion to suppress the statements because the officer

had not provided him Miranda warnings.

ISSUE: Whether the officer must provide a suspect in

318 Fifth Amendment 
custody Miranda warnings if the suspect does not 

know the officer represents the government?

HELD: No. Miranda warnings only apply to the policedominated environment in which a known police 

officer controls the conditions.

DISCUSSION: The Miranda doctrine must be strictly 

enforced, but only in situations where the concerns underlying 

that decision are present (i.e., a government-dominated 

atmosphere whereby the suspect may feel compelled to speak 

by the fear of reprisal or in the hope of more lenient treatment 

should he confess). That coercive atmosphere is not present 

when an incarcerated person speaks freely to someone whom he 

believes to be a fellow inmate. In such circumstances, Miranda

does not forbid mere strategic deception by taking advantage of 

a suspect’s misplaced trust. The Miranda warnings were not 

meant to protect suspects from boasting about their criminal 

activities in front of persons whom they believe to be their 

cellmates. Note that Massiah v. United States, which held that 

the government could not use an undercover agent to 

circumvent the Sixth Amendment right to counsel once a 

suspect has been charged, is inapplicable here since no murder 

charges had been filed at the time of the interrogation (the Sixth 

Amendment had not attached).

Coercion is determined from the perspective of the suspect. The 

inherent coerciveness of custodial interrogation is not present 

when the target is unaware that he is talking with authorities. 

Miranda is not concerned with ploys to mislead a suspect or lull 

him into a false sense of security that do not rise to the level of 

compulsion or coercion to speak.



Arizona v. Mauro

 481 U.S. 520, 107 S. Ct. 1931 (1987)

FACTS: The defendant was arrested for killing his son. 

After being read his Miranda rights, he invoked his right to 

Fifth Amendment 319
counsel and stated that he did not wish to answer any 

questions until a lawyer was present. The defendant’s wife 

insisted that she be allowed to speak with the defendant. The 

police allowed the meeting on the condition that an officer be 

present during the encounter. Using a tape recorder in plain 

sight, the officer taped a brief conversation during which the 

defendant told his wife not to answer any questions until a 

lawyer was present. At trial, the prosecution used the tape to 

rebut defendant’s insanity defense.

ISSUE: Whether the police impermissibly interrogated the 

defendant in violation of his Miranda rights?

HELD: No. The defendant, who had asserted his right to 

counsel, was not subjected to interrogation or its 

functional equivalent when the government allowed 

the defendant’s wife to speak with defendant in the 

presence of an officer.

DISCUSSION: The purpose of Miranda is to prevent the 

government from using the coercive nature of confinement to 

extract confessions that would not be given in an unrestrained 

environment. This fear was not implicated here because the 

defendant was not subjected to compelling influences, 

psychological ploys, or direct questioning by the government. 

From the defendant’s perspective, it is improbable that he felt 

he was being coerced to incriminate himself simply because he 

was told his wife would be allowed to speak to him.



2. Custody

Berkemer v. McCarty

 468 U.S. 420, 104 S. Ct. 3138 (1984)

FACTS: After observing the defendant’s car weave, a police 

officer stopped him and asked him to get out of the car. 

Noticing that the defendant was having difficulty standing, the 

officer concluded that he would arrest the defendant for drunk 

320 Fifth Amendment 
driving, though he did not communicate this intent to the 

defendant. The defendant failed field sobriety tests, whereupon 

the officer asked if he had been using intoxicants. The 

defendant replied that he had consumed two beers and had 

smoked marihuana a short time before. The officer formally 

arrested the defendant. At no time did the officer provide the 

defendant with Miranda warnings during this encounter.

ISSUE: Whether the defendant was in custody for Miranda

purposes?

HELD: No. Routine traffic stops do not create a

government-dominated atmosphere Miranda is 

designed to protect against.

DISCUSSION: A person subjected to custodial interrogation 

by police officers is entitled to Miranda warnings. However, 

roadside questioning of a motorist detained pursuant to a 

routine traffic stop does not constitute “custodial interrogation.” 

The Miranda warnings are applicable as soon as a suspect’s 

freedom of action is curtailed to a degree associated with formal 

arrest. An officer’s unarticulated plan to arrest a motorist and 

charge him with a traffic offense does not amount to custody. 

The relevant inquiry was whether a reasonable person in the 

motorist’s position would have believed he or she was in 

custody.



Pennsylvania v. Bruder

 488 U.S. 9, 109 S. Ct. 205 (1988)

FACTS: An officer observed a motorist driving erratically 

and ignoring a red light. He stopped the defendant’s vehicle. 

After smelling alcohol and observing the defendant’s stumbling 

movements, the officer administered field sobriety tests to the 

defendant, including asking the defendant to recite the 

alphabet. The officer inquired about the defendant’s use of 

alcohol. The defendant stated that he had been drinking. The 

defendant also failed the sobriety tests. The officer arrested the 

Fifth Amendment 321
defendant, placed him a police car, and administered his 

Miranda warnings.

ISSUE: Whether the defendant was in custody at the time 

he was asked if he had been drinking?

HELD: No. Ordinary traffic stops do not involve custody 

for purposes of the requirement to give Miranda

warnings.

DISCUSSION: The rule of Berkemer v. McCarty, that 

ordinary traffic stops do not involve custody for the purposes of 

Miranda, governs this case. Although unquestionably a seizure, 

this stop had the same noncoercive aspects as the Berkemer 

seizure: a single police officer asking the defendant a modest 

number of questions and requesting him to perform simple 

tests in a location visible to passing motorists. The defendant 

was not in custody and, therefore, the officer did not have to 

administer Miranda warnings before questioning.



Oregon v. Mathiason

 429 U.S. 492, 97 S. Ct. 711 (1977)

FACTS: The defendant, a parolee, was suspected of being 

involved in a residential burglary. The officer investigating the 

burglary left his card at the defendant’s apartment, with a note 

asking him to call the officer “to discuss something.” The 

defendant called the officer the next day. When the officer 

asked the defendant where it would be convenient to meet, the 

defendant expressed no preference. The officer asked if the 

defendant could come to the police station to meet. The 

defendant agreed and voluntarily went to the station. The 

officer met the defendant in the hallway, shook his hand, and 

took him into an office. He told the defendant that he was not 

under arrest. The officer closed the office door and the two sat 

down. The officer explained that he wanted to talk to the 

defendant about a burglary, and that the district attorney or 

judge would possibly consider his truthfulness. The officer told 

322 Fifth Amendment 
the defendant that he was suspected of committing the burglary 

and falsely claimed his fingerprints had been found at the scene 

of the crime. The defendant considered this information, then 

admitted his involvement in the burglary. At that point, the 

officer advised the defendant of his Miranda rights for the first 

time, secured a waiver, and obtained a taped confession. Once 

the taping had been completed, the defendant was released and 

told that the matter would be turned over to the district 

attorney for a determination on whether charges would be filed.

ISSUE: Whether the defendant was in “custody” when he 

made his initial incriminating statement?

HELD: No. At the time he was being questioned, the 

defendant was not in “custody.”

DISCUSSION: Officers must provide Miranda warnings to 

any person who is being subjected to a “custodial 

interrogation.” The phrase “custodial interrogation” means 

“questioning initiated by law enforcement officers after a person 

has been taken into custody or otherwise deprived of his 

freedom of action in any significant way.” Here, the defendant 

voluntarily came to the patrol station where the officer 

immediately advised him that he was not under arrest. At the 

close of the interview, the defendant was allowed to leave. For 

these reasons, the Court held that the defendant was not in 

“custody” or “otherwise deprived of his freedom of action in any 

significant way.”



Beckwith v. United States

 425 U.S. 341, 96 S. Ct. 1612 (1976)

FACTS: The IRS was investigating the defendant for tax 

fraud. Two IRS agents met with the defendant in a private 

home where he sometimes stayed. One of the agents testified 

that they went to see the defendant at this residence at 

approximately 8:00 a.m. in order to spare him the possible 

embarrassment of being interviewed at his place of employment, 

Fifth Amendment 323
which opened at 10:00 a.m. Upon arrival, the agents were 

invited into the house and, when the defendant entered the 

room, they introduced themselves. The defendant excused 

himself for a period of approximately five minutes to finish 

dressing. When he returned, the three sat at a dining room 

table where the agents presented their credentials, informed the 

defendant of why they wanted to speak with him, and read him 

some, but not all, of his Miranda warnings. The defendant 

acknowledged that he understood his rights and the agents 

interviewed him until approximately 11:00 a.m. The agents 

described the conversation as “friendly” and “relaxed,” while the 

defendant noted that the agents did not “press” him on any 

question he could not or chose not to answer. Before ending 

the interview, the agents requested permission to examine 

certain records. When the defendant indicated the records were 

maintained at his place of employment, the agents asked if they 

could meet him there later. The agents met him approximately 

45 minutes later at his place of employment. The senior agent 

advised the defendant that he was not required to furnish any 

books or records, but the defendant supplied the books to the 

agents nonetheless. Prior to trial, the defendant moved to 

suppress all of the statements made to the agents and any 

evidence obtained as a result of those statements on the 

grounds that he was in custody at the time of the interview and 

had not been fully advised of his Miranda warnings.

ISSUE: Whether the defendant was in custody at the time 

of the interview?

HELD: No. The defendant could not have reasonably 

believed he was in custody at the time of the 

interview.

DISCUSSION: Miranda warnings are necessary whenever 

law enforcement officers question an individual who has been 

“taken into custody or otherwise deprived of his freedom of 

action in any significant way.” The defendant was neither 

arrested nor detained against his will by the agents. While he 

was clearly the “focus” of the agents’ investigation, “he hardly 

found himself in the custodial situation described by the 

324 Fifth Amendment 
Miranda Court as the basis for its holding.” The agents were 

not required to read him his Miranda warnings, and any 

statements he made and any evidence derived from those 

statements were admissible against him at his later trial.



Orozco v. Texas

 394 U.S. 324, 89 S. Ct. 1095 (1969)

FACTS: The defendant was a murder suspect. At 

approximately 4:00 a.m., four officers arrived at the defendant’s 

boardinghouse. They were told that the defendant was asleep 

in his bedroom. All four officers entered the bedroom, notified 

the defendant that he was under arrest, and began to question 

him. The officers did not read the defendant his Miranda

rights. In response to questioning, he admitted being at the 

murder scene on the night in question. When asked if he 

owned a pistol, the defendant replied that he did. He later told 

the officers where the pistol was located, and ballistics tests 

performed on the weapon indicated that it was the gun used in 

the murder.

ISSUE: Whether the defendant was in custody at the time 

of his statements?

HELD: Yes. The officers were required to read the 

defendant his Miranda warnings because he was in 

custody or otherwise deprived of his freedom of 

action in a significant way.

DISCUSSION: In Miranda v. Arizona, the Supreme Court 

held that warnings were required whenever a suspect being 

interrogated was “in custody at the station or otherwise 

deprived of his freedom of action in any significant way.” Here, 

the State argued that since the defendant was interrogated in 

his own bedroom, in familiar surroundings, Miranda should not 

apply. However, the Court disagreed, noting that the Miranda

decision “iterated and reiterated the absolute necessity for 

officers interrogating people ‘in custody’ to give the described 

Fifth Amendment 325
warnings.” According to one of the officer’s testimony, the 

defendant in this case “was under arrest and not free to leave 

when he was questioned in his bedroom in the early hours of 

the morning.” For this reason, the admissions made by the 

defendant, without the benefit of Miranda warnings, were 

obtained in violation of the Fifth Amendment privilege against 

compelled self-incrimination.



Mathis v. United States

 391 U.S. 1, 88 S. Ct. 1503 (1968)

FACTS: The defendant was serving a state prison sentence 

when an IRS agent questioned him about tax returns. Prior to 

the questioning, the defendant was not notified of his Miranda

rights by the investigator. Documents and oral statements 

obtained from him during this interrogation were introduced at 

his criminal trial for filing false claims for tax refunds.

ISSUE: Whether a state prisoner is in custody at the time of 

the questioning about a federal crime?

HELD: Yes. The Court was indifferent about why the 

defendant was in custody at the time of the 

questioning about the income tax investigation.

DISCUSSION: The government claimed that Miranda

warnings were not required in this case for two reasons: First, 

the questions were asked as part of a routine tax investigation 

that would not necessarily result in criminal charges; and 

second, the defendant was not placed in jail by the officer 

questioning him, but was there for an entirely separate offense. 

The Court disagreed with both of these positions. First, while 

tax investigations “may be initiated for the purpose of civil 

action rather than criminal prosecution,” these investigations 

frequently lead to criminal prosecutions, just as occurred here. 

Further, there was always the possibility that the investigation 

could end up in a criminal prosecution. Thus, “routine tax 

investigations” still require that Miranda warnings be given to a 

326 Fifth Amendment 
person in custody. Second, the reason the defendant was in 

custody was irrelevant for Miranda purposes. According to the 

Court, there is “nothing in the Miranda opinion that calls for a 

curtailment of the warnings to be given persons under 

interrogation by officers based on the reason why the person is 

in custody.”



Howes v. Fields

 565 U.S. ___, 132 S. Ct. 1181 (2012)

FACTS: The defendant was serving a state prison sentence. 

A corrections officer took him to a conference room where two 

officers wanted to question him about unrelated events that 

occurred before he went to prison. To get to the conference 

room, the defendant had to go down a floor and pass through a 

locked door that separated two sections of the facility. The 

officers told the defendant “that he was free to leave and return 

to his cell.” The officers repeated this statement to the 

defendant at a later time. The officers were armed during the 

interview, but the defendant remained free of handcuffs and 

other restraints. The door to the conference room was 

sometimes open and sometimes shut. The officers questioned 

the defendant for five to seven hours without providing Miranda

warnings. The defendant made incriminating statements about 

the uncharged conduct.

ISSUE: Whether a defendant is “in custody” for Miranda

purposes when he is incarcerated at the time of the 

interrogation?

HELD: No. Prisoners are not automatically “in custody” 

based solely on their imprisonment.

DISCUSSION: The Court held “it is abundantly clear that 

our precedents do not clearly establish...that the questioning of 

a prisoner is always custodial when the prisoner is removed 

from the general prison population and questioned about events 

that occurred outside the prison.” In explaining its earlier 

Fifth Amendment 327
Mathis decision, the Court stated “Mathis did not hold that 

imprisonment, in and of itself, is enough to constitute Miranda

custody.” The Court refused to acknowledge a categorical rule 

that those imprisoned are “in custody.” 

“Custody” is a term of art that rests on several significant 

factors, including the location of the questioning, its duration, 

statements made during the interview, the presence or absence 

of physical restraints during the questioning, and the release of 

the interviewee at the end of the questioning. “[I]mprisonment 

alone is not enough to create a custodial situation within the 

meaning of Miranda” the Court found, for three basic reasons:

1) it does not generally involve the shock that very 

often accompanies arrest

2) “a prisoner, unlike a person who has not been 

sentenced to a term of incarceration, is unlikely to 

be lured into speaking by a longing for prompt 

release,” and 

3) “a prisoner...knows that the law enforcement 

officers who question him probably lack the 

authority to affect the duration of his sentence.

In this instance, the defendant was not in custody for Miranda

purposes.



Stansbury v. California

 511 U.S. 318, 114 S. Ct. 1526 (1994)

FACTS: The defendant was thought to be a witness to a 

homicide. When he was contacted by three police officers at his 

home, the defendant agreed to go to the police station for an 

interview. Upon arrival, the defendant was questioned by 

officers about his whereabouts at the time of the murder. The 

lead officer did not provide the defendant with Miranda

warnings before he asked these questions. However, when the 

328 Fifth Amendment 
defendant mentioned that he had been driving a vehicle that 

matched the description given by another witness, one of the 

officers suspected that the defendant was involved in the 

murder. When the defendant then admitted that he had 

previously been convicted of rape, kidnapping, and child 

molestation, the officers terminated the interview and a different 

officer advised the defendant of his Miranda rights. The 

defendant declined to answer any further questions, requested 

an attorney, and was arrested. At trial, the defendant filed a 

motion to suppress his statements made to the government, as 

well as all evidence discovered as a result of those statements.

ISSUE: Whether an officer’s subjective view concerning 

whether the person being interviewed is a suspect 

is relevant to whether the person is in “custody?”

HELD: No. An officer’s subjective thoughts regarding a 

suspect is irrelevant to the assessment of whether 

the person is in “custody.”

DISCUSSION: An officer is required to administer Miranda

warnings whenever an individual is questioned while in custody 

(or otherwise deprived of his freedom of action in any significant 

way). In determining whether an individual is in custody for 

purposes of Miranda, courts use the “totality of the 

circumstances” test. Previous decisions of the Court, however, 

clearly provide that “the initial determination of custody 

depends on the objective circumstances of the interrogation, not 

on the subjective views harbored by either the interrogating 

officers or the person being questioned.” The requirement to 

administer Miranda warnings does not depend on whether the 

person being questioned is the focus of the government’s 

investigation, but on “how a reasonable man in the suspect’s 

position would have understood his situation.” An officer’s 

“subjective view that the individual under questioning is a 

suspect, if not disclosed to the individual, does not bear upon 

the question of whether the individual is in custody for 

purposes of Miranda.” However, if the officer communicates his 

views to the suspect, this fact weighs upon the question of 

custody. “In sum, an officer’s views concerning the nature of an 

Fifth Amendment 329
interrogation, or beliefs concerning the potential culpability of 

the individual being questioned, may be one among many 

factors that bear upon the assessment of whether that 

individual was in custody, but only if the officer’s views or 

beliefs were somehow manifested to the individual under 

interrogation and would have affected how a reasonable person 

in that position would perceive his or her freedom to leave.”



California v. Beheler

 463 U.S. 1121; 103 S. Ct. 3517 (1983)

FACTS: After the defendant called the police to report a 

homicide in which he was involved, he voluntarily accompanied 

them to the station house. The officers told the defendant that 

he was not under arrest. At the station house, the defendant 

talked about the murder in an interview that lasted less than 30 

minutes. The police did not advise him of his Miranda rights. 

The defendant was permitted to return to his home, and he was 

arrested five days later. After he was advised of his Miranda

rights at that time, he waived those rights and gave a second 

confession.

ISSUE: Whether the defendant was in custody at the time 

of his first interview?

HELD: No. A person is not in custody if he or she 

voluntarily goes to a police station and is allowed to 

leave unhindered by the police after a brief 

interview.

DISCUSSION: The Court held that Miranda warnings were 

not required at the defendant’s first interview with the police. 

Miranda warnings are not necessary unless there is police 

custodial interrogation. The Court found that the defendant 

was neither taken into custody for the first interview nor 

significantly deprived of his freedom of action. Although the 

circumstances of each case must be considered in determining 

whether a suspect is “in custody,” the ultimate inquiry is 

330 Fifth Amendment 
whether there is a formal arrest or restraint on freedom of 

movement of the degree associated with a formal arrest. 

Miranda warnings are not required simply because the 

questioning takes place in a coercive environment in the station 

house or because the questioned person is one whom the 

government suspects. Also, the length of time that elapses 

between the commission of a crime and a police interview that 

takes place when a person voluntarily comes to the police 

station has no relevance in determining whether a Miranda

warning is required. The fact that a person who voluntarily 

engages in an interview with the government is unaware of the 

consequences of his participation does not transform the 

voluntary interview into custody.



Thompson v. Keohane

 516 U.S. 99, 116 S. Ct. 457 (1995)

FACTS: A defendant, upon the request of a police officer, 

presented himself at police headquarters. Once there, during a 

2-hour tape-recorded session, he was questioned by officers 

about the murder of his former wife. During the questioning, 

the officers repeatedly told the accused that he was free to 

leave, but also told him that they knew he had killed the victim. 

The accused was not informed of his Miranda rights. 

Eventually, he told the officers that he had committed the 

crime. Following the interview, the defendant was allowed to 

leave the police headquarters. He was arrested 2 hours later 

and charged with first-degree murder. The state court found 

that the defendant was not in custody at the time of the 

statements.

ISSUE: Whether the state court’s determination of the 

custody issue has a presumption of correctness?

HELD: No. The determination of whether a person is in 

custody is a mixed question of fact and law.

Fifth Amendment 331
DISCUSSION: Trial courts are given great deference in 

issues of credibility. However, two discrete inquiries are 

essential to the determination whether there was “a ‘formal 

arrest or restraint on freedom of movement’ of the degree 

associated with a formal arrest.” California v. Beheler. The first 

inquiry, what circumstances surrounded the interrogation, is 

distinctly factual. The second inquiry, would a reasonable 

person have felt at liberty to terminate the interrogation and 

leave, calls for application of the law. In these inquiries, the 

trial court’s superior capacity to resolve credibility issues is not 

the foremost factor.



Yarborough v. Alvarado

 541 U.S. 652, 124 S. Ct. 2140 (2004)

FACTS: The 17-year old defendant was involved in a 

murder. About a month later, at the request of a police officer, 

the defendant’s parents brought him to a police station. With 

only the officer and the defendant present, the officer conducted 

a two-hour interview. At the conclusion of this interview, the 

defendant made incriminating statements. At no time did the 

officer offer the defendant his Miranda warnings.

ISSUE: Whether the defendant’s youth and inexperience 

must be evaluated in determining whether a 

reasonable person in his position would have felt as 

if he was in custody?

HELD: No. The Court stated that its prior “opinions 

applying the Miranda custody test have not 

mentioned the suspect’s age, much less mandated 

its consideration.”

DISCUSSION: Custody must be determined based on how a 

reasonable person in the suspect’s situation would perceive the 

circumstances. In making this determination, the Supreme 

Court has never held that “a suspect’s age or experience is 

relevant to the Miranda custody analysis.” These factors (as 

332 Fifth Amendment 
well as education and intelligence) are useful in viewing whether 

a suspect engaged in a voluntary act, such as in making a 

statement to law enforcement officers. However, age and 

experience are not proper factors in determining custody.

But see J.D.B. v. North Carolina below.



J. D. B. v. North Carolina

 564 U.S. ___, 131 S. Ct. 2394 (2011)

FACTS: The defendant was 13-year-old suspect in two 

home break-ins. A uniformed officer removed him from his 

classroom and took him to a closed-door conference room. The 

defendant was then questioned for half an hour, during which 

he initially denied any wrongdoing. He then inquired whether 

he would “still be in trouble” if he returned “the stuff.” The 

officer explained that the matter was destined to go to court and 

that a juvenile seizure order may be obtained.

ISSUE: Whether the defendant’s age plays a role in the 

court’s determination of “custody” for Miranda

purposes?

HELD: Yes. The test to determine “custody” remains an 

objective one, though the government must take 

into account the age of the suspect if it is known or 

knowable to the officer.

DISCUSSION: In updating its position in Alvarado, the 

Court noted that “Justice O’Connor’s concurring opinion 

explained that a suspect’s age may indeed ‘be relevant to the 

'custody' inquiry’ (quoting Alvarado).” In some circumstances, 

“a reasonable child subjected to police questioning will 

sometimes feel pressured to submit when a reasonable adult 

would feel free to go.” Therefore, the Court held that “so long as 

the child’s age was known to the officer at the time of police 

questioning, or would have been objectively apparent to a 

reasonable officer, its inclusion in the custody analysis is 

Fifth Amendment 333
consistent with the objective nature of that test.”



3. Interrogation

Rhode Island v. Innis

 446 U.S. 291, 100 S. Ct. 1682 (1980)

FACTS: A robbery victim identified the defendant in a photo 

display. Nearly four hours later, a police officer spotted the 

defendant. The defendant was arrested and advised of his 

Miranda rights. He was not in the possession of the shotgun 

used in the robbery at the time of his arrest. After being 

advised of his rights, the defendant requested to speak with a 

lawyer. A supervisor on scene had the defendant placed in a 

vehicle, along with three officers. Before departing, the 

supervisor advised the officers in the vehicle “not to question 

the defendant or intimidate or coerce him in any way.” While 

traveling to the police station, two of the patrolmen discussed 

the possibility that a handicapped child from a nearby school 

might find a loaded shotgun and get hurt. The defendant, who 

overheard the conversation, interrupted the conversation and 

told the officers to turn the car around so that he could show 

them where the shotgun was located. The police returned him 

to the scene of the arrest and again advised of his Miranda

rights. He replied that he understood his rights, but that he 

“wanted to get the gun out of the way because of the kids in the 

area in the school.” The defendant then led the police to a 

nearby field, where he pointed out the hidden shotgun. At trial, 

both the shotgun and the testimony relating to its discovery 

were introduced against the defendant.

ISSUE: Whether the police officers “interrogated” the 

defendant through their overheard conversation?

HELD: No. The police officers’ actions did not amount to 

“interrogation” or the “functional equivalent of 

interrogation” of the defendant.

334 Fifth Amendment 
DISCUSSION: The procedural safeguards of Miranda apply 

“whenever a person in custody is subjected to either express 

questioning or its functional equivalent.” The Court stated “the 

term ‘interrogation’ under Miranda refers not only to express 

questioning, but also to any words or actions on the part of the 

police (other than those normally attendant to arrest and 

custody) that the police should know are reasonably likely to 

elicit an incriminating response from the suspect.” In this case, 

the defendant had not been “interrogated” since there had been 

neither “express” questioning, nor the “functional equivalent” of 

questioning. There was no “express” questioning in that the 

conversation was entirely between two officers in the vehicle, 

and not directed to the defendant. Similarly, the officers did not 

subject the defendant to the “functional equivalent” of 

questioning. “There is nothing in the record to suggest that the 

officers were aware that the defendant was peculiarly 

susceptible to an appeal to his conscience concerning the safety 

of handicapped children. Nor is there anything in the record to 

suggest that the police knew that the respondent (defendant) 

was unusually disoriented or upset at the time of his arrest.”

NOTE: Compare this case to Brewer v. Williams.



Pennsylvania v. Muniz

 496 U.S. 582, 110 S. Ct. 2638 (1990)

FACTS: The defendant was stopped by a police officer on 

suspicion of driving while intoxicated. He performed poorly on 

a series of field sobriety tests and was placed under arrest. The 

officer took the defendant to a booking center. Officers there, 

following the usual practice with drunk-driving suspects, 

videotaped the booking proceedings. The defendant, who was 

informed of the videotaping, responded to questions concerning 

his name, address, height, weight, eye color, date of birth, and 

current age, stumbling over his address and age. In response 

to a question about whether he knew the date of his sixth 

birthday, the defendant stated, “No, I don’t.” He did poorly in 

repeated sobriety tests. The defendant was then advised of his 

Fifth Amendment 335
Miranda rights for the first time, signed a statement waiving 

those rights, and admitted under questioning that he had been 

driving while intoxicated.

ISSUE: Whether the officers interrogated the defendant 

before providing him with his Miranda warnings?

HELD: Yes. The defendant’s Fifth Amendment rights were 

violated by the admission of that part of the 

videotape in which the suspect responded to the 

question as to the date of his sixth birthday. 

However, the admission of the portions of the 

videotape in which the suspect performed the 

sobriety tests and responded to booking questions 

was not interrogation.

DISCUSSION: The privilege against self-incrimination 

protects an “accused from being compelled to testify against 

himself, or otherwise, provide the State with evidence of a 

testimonial or communicative nature,” but not from being 

compelled by the State to produce “real or physical evidence.”

Schmerber v. California. To be testimonial, the communication 

must, “explicitly or implicitly, relate a factual assertion or 

disclose information.” Doe v. United States.

The defendant’s answers to direct questions are not rendered 

inadmissible by Miranda merely because the slurred nature of 

his speech was incriminating. Any slurring of speech and other 

evidence of lack of muscular coordination revealed by the 

defendant’s responses constitute non-testimonial aspects of 

those responses. The defendant’s incriminating responses

made during the sobriety tests were not the result of 

interrogation as the officer’s dialogue with him concerning the 

tests consisted of carefully scripted instructions as to how the 

tests were to be performed. Therefore, they were not “words or 

actions” constituting custodial interrogation.

However, the defendant’s response to the sixth birthday 

question was incriminating not just because of his delivery, but 

also because the content of his answer supported an inference 

336 Fifth Amendment 
that his mental state was confused. His response was 

testimonial because he was required to communicate an 

express or implied assertion of fact or belief and, thus, was 

confronted with the “trilemma” of truth, falsity, or silence, the 

historical abuse against which the privilege against selfincrimination was aimed.



4. Right to Silence

Salinas v. Texas

 570 U.S. ___, 133 S. Ct. 2174 (2013)

FACTS: Salinas voluntarily gave his shotgun to officers and 

accompanied the officers to the police station so the officers 

could question him about a murder. The officers did not advise 

Salinas of his Miranda rights, as he was not in custody. 

Salinas answered most of the interviewing officer’s questions; 

but, when the officer asked Salinas if his shotgun “would match 

the shells recovered at the scene of the murder,” Salinas did not 

reply. After a short period of silence, the officer asked Salinas 

other questions, which Salinas answered. Salinas did not 

testify at trial; however the prosecutor commented on Salinas’ 

failure to answer the officer’s question about the shotgun, 

arguing it was evidence of Salinas’ guilt. 

ISSUE: Does the Fifth Amendment’s Self-Incrimination 

Clause protect a defendant’s refusal to answer 

questions asked by the government before he has 

been arrested or read his Miranda rights?

HELD: No. The privilege against self-incrimination 

generally is not self-executing; therefore, a witness 

who wants its protection needs to invoke it 

explicitly.

DISCUSSION: The Fifth Amendment does not establish a 

complete right to remain silent. The Fifth Amendment only 

guarantees a criminal defendant may not be compelled to testify 

Fifth Amendment 337
against himself. Consequently, no Constitutional violation 

occurs as long as the government does not deprive a defendant

of the opportunity to claim a Fifth Amendment privilege.



Berghuis v. Thompkins

 560 U.S. 370, 130 S. Ct. 2250 (2010)

FACTS: A police investigation into a shooting pointed to two 

suspects, one of whom was the defendant. Once arrested, 

officers advised the defendant of his Miranda rights and 

received his verbal confirmation of his understanding. The 

defendant refused to sign a form stating he acknowledged those 

rights. Over the course of the interrogation, the defendant was 

largely silent, answering only a few questions either nonverbally or with simple statements such as “yeah,” “no,” or “I 

don’t know.” After nearly three hours, an officer tried what he 

called a “different tack.” After asking the defendant whether he 

believed in and prayed to God, the officer asked whether the 

defendant had asked God for forgiveness for “shooting that boy 

down.” The defendant replied, “Yes.” This statement was used 

against him at trial. 

ISSUE: Whether a defendant’s Miranda right to silence is 

violated when, after being advised of his Miranda

rights, police continue to question him for three 

hours while he remains silent and ultimately obtain 

an incriminating statement from him? 

HELD: No. A suspect who receives and understands 

Miranda warnings, and fails to invoke his Miranda

rights, waives his right to remain silent when 

offering an uncoerced statement to the police.

DISCUSSION: The Court examined the suspect’s waiver of 

his right to silence as well as what is required for an invocation 

of the right to remain silent. When a suspect engages in limited 

verbal communication with police but never explicitly invokes 

his right to silence, the Court concluded that he had not 

338 Fifth Amendment 
invoked his right to silence. In order to invoke the right to 

silence, the suspect must say so expressly and unambiguously. 

A suspect must give an unambiguous declaration of his 

intention to invoke his right to remain silent or he has not 

invoked such a right. The government still has the burden of 

proving a valid waiver. A valid waiver may be inferred from the 

facts that the suspect received warnings, understood his rights 

and ultimately responded to government questioning.



Jenkins v. Anderson

 447 U.S. 231, 100 S. Ct. 2124 (1980)

FACTS: The defendant was suspected of a homicide. He 

turned himself in two weeks later. At his trial for first-degree 

murder, the defendant took the witness stand and contended 

that the killing was the result of self-defense. The prosecutor 

argued that the defendant’s two-week delay in reporting the 

incident was inconsistent with self-defense.

ISSUE: Whether the government’s use of the defendant’s 

pre-arrest silence violated his constitutional right to 

remain free from self-incrimination?

HELD: No. The use of the defendant’s pre-arrest silence 

was not contemplated by the Fifth Amendment 

privilege from self-incrimination.

DISCUSSION: The Court long ago held that the “immunity 

from giving testimony is one in which the defendant may waive 

by offering himself as a witness,” citing Raffel v. United States, 

271 U.S. 494 (1926). When the defendant took the witness 

stand in this case, the prosecution was entitled to impeach his 

testimony as inconsistent with his previous actions. Courts 

have repeatedly allowed the impeachment of witnesses with 

their failure to state a fact under circumstances in which it 

would have been natural to do so. If the defendant does not 

want to face this standard trial practice, he should decline to 

testify.

Fifth Amendment 339


Fletcher v. Weir

 455 U.S. 603, 102 S. Ct. 1309 (1982)

FACTS: The defendant was involved in an altercation that 

led to the death of another man. The defendant immediately 

left the scene and did not report the incident to the police. He 

was later arrested for murder but at no time was he provided

Miranda warnings. At his trial, the defendant took the witness 

stand. He admitted to accidently stabbing the victim but 

claimed to have acted in self-defense. This was the first time 

the defendant had offered an exculpatory explanation of the 

events. On cross-examination, the prosecution asked why the 

defendant had not offered this explanation to the police at the 

time of his arrest, or disclose the location of the knife.

ISSUE: Whether the government may use the defendant’s 

silence to impeach his testimony?

HELD: Yes. The government may use the defendant’s 

silence against him if no Miranda warnings were 

provided.

DISCUSSION: It is fundamentally unfair and a deprivation 

of due process to use a person’s silence against them after they 

have accepted the protections of their Miranda rights. The 

government should not be able to coax a suspect into remaining 

silent through a reading of the Miranda rights and then use 

that silence against him at trial. However, the defendant here 

was not promised that his silence would not be used against 

him, as he was not read his Miranda rights. The Court found 

that, absent this promise, the government was free to introduce 

the defendant’s silence against him at trial for purposes of 

impeachment, as his silence was inconsistent with his defense. 

It would have been reasonable to assume that a person would 

want to explain their involvement in an accidental stabbing 

rather than face a murder charge.



340 Fifth Amendment 
United States v. Hale

 422 U.S. 171, 95 S. Ct. 2133 (1975)

FACTS: The defendant was arrested for robbery. He was 

advised of his Miranda rights, searched, and found to be in 

possession of a small amount of currency. The defendant made 

no response when the officer asked him where he got the 

money. At trial, the defendant testified that he met the victim 

on the day of the robbery but did not commit the crime. He 

claimed the money found on him belonged to his wife and was 

for the purpose of purchasing money orders. On crossexamination, the prosecutor asked the defendant why he did 

not mention these facts to the arresting officer.

ISSUE: Whether the government can inquire into why a 

suspect remained silent after invoking his right to 

remain silent?

HELD: No. It is not unusual (or inconsistent) for a suspect 

to remain silent after being advised of his right to 

do so.

DISCUSSION: It is a basic principle of the law of evidence 

that a witness can be impeached with prior inconsistent 

statements they have made. However, there must be a 

connection between the initial statement (or lack thereof) and 

the testimony at trial. In most circumstances, silence does not 

amount to prior inconsistency (but see Jenkins v. Anderson). 

The act of silence amounts to a prior inconsistent statement 

only if it would have been natural to object to the question 

when it was put to the witness. This was not the case at the 

time the question was put to the defendant at his arrest. The 

guilty and innocent alike could find an arrest so intimidating 

that they choose to remain silent.



Fifth Amendment 341
Doyle v. Ohio

 426 U.S. 610, 96 S. Ct. 2240 (1976)

FACTS: The defendants were arrested for attempting to sell 

a controlled substance and were provided Miranda warnings. 

At trial, they testified that the government had “framed” them. 

The government then sought to introduce evidence that the 

defendants had not made any statements to this effect after 

their arrest.

ISSUE: Whether the government’s use of the defendants’ 

post-arrest silence on cross-examination violated 

their Fifth Amendment right to remain silent?

HELD: Yes. Once provided the right to remain silent, the 

government may not use that protection against the 

defendant.

DISCUSSION: Providing a constitutional protection to a 

defendant and then using that protection against them renders 

the protection meaningless. The Court stated that “while it is 

true that the Miranda warnings contain no express assurance 

that silence will carry no penalty, such assurance is implicit to 

any person who receives the warnings. In such circumstances, 

it would be fundamentally unfair and a deprivation of due 

process to allow the arrested person’s silence to be used to 

impeach an explanation subsequently offered at trial.”



Michigan v. Mosley

 423 U.S. 96, 96 S. Ct. 321 (1975)

FACTS: The defendant was arrested for two robberies. 

Once in custody, an officer attempted to interview him 

regarding the robberies. The defendant was brought to an office 

in the police headquarters building, where the officer advised 

the defendant of his Miranda rights and had him read and sign 

a notification certificate. He also had the defendant orally 

acknowledge an understanding of his rights. When the officer 

342 Fifth Amendment 
attempted to question him, the defendant stated that he did not 

wish to answer any questions about the robberies. He did not, 

however, request to speak with counsel. The officer 

immediately ceased the interrogation and took the defendant to 

a cell. Over two hours later, a homicide detective had the 

defendant moved to a different office building for questioning 

about a homicide that was unrelated to the robberies for which 

the defendant had been arrested. Again, the defendant was 

read his Miranda rights and signed a notification certificate. 

Within 15-minutes, the defendant made a statement implicating 

himself in the homicide. At no time during this interview did 

the defendant request a lawyer or indicate that he did not wish 

to discuss the homicide. Additionally, at no time was the 

defendant asked any questions regarding the robberies for 

which he had been arrested. The incriminating statement was 

introduced at the defendant’s first-degree murder trial and he 

was convicted.

ISSUE: Whether the police violated the defendant’s rights

by questioning him about an unrelated crime after 

he had invoked his right to remain silent?

HELD: No. The police may re-approach the defendant after 

he invoked his right to remain silent.

DISCUSSION: In answering this question, the Court relied 

almost entirely on a single passage from their decision in 

Miranda v. Arizona: “If the individual indicates in any manner, 

at any time prior to or during questioning, that he wishes to 

remain silent, the interrogation must cease.” The Miranda

decision never addressed “under what circumstances, if any, a 

resumption of questioning is permissible.” What was clear, 

however, was that nothing in the Miranda opinion “can sensibly 

be read to create a per se proscription of indefinite duration 

upon any further questioning by any police officer on any 

subject, once the person in custody has indicated a desire to 

remain silent.”

The Court concluded “that the admissibility of statements 

obtained after the person in custody has decided to remain 

Fifth Amendment 343
silent depends under Miranda on whether his right to cut off 

questioning was ‘scrupulously honored.’” In this case, a review 

of the circumstances led the Court to hold that the defendant’s 

right to cut off questioning was “scrupulously honored.” First, 

before his initial interrogation, the defendant was fully informed 

of his Miranda rights, orally acknowledged an understanding of 

those rights, and signed a notification certificate. Second, when 

the defendant stated that he did not wish to answer questions 

about the robberies, all questioning immediately ceased. Third, 

a significant period of time (more than two hours) passed before 

a different officer, in a different location, regarding a different 

crime, next questioned the defendant. Fourth, before his 

second interview, the defendant was again fully advised of his 

Miranda rights.



5. Right to Counsel

Edwards v. Arizona

 451 U.S. 477, 101 S. Ct. 1880 (1981)

FACTS: After being arrested on a criminal charge and being 

advised of his Miranda rights, the defendant was questioned by 

the police until he said that he wanted an attorney. The officers 

ceased their questioning. The next day, the police went to the 

jail, again advised defendant of his Miranda rights, and 

obtained a confession.

ISSUE: Whether the officers may approach a suspect who 

has invoked his Fifth Amendment right to counsel?

HELD: No. An accused, having expressed his desire to 

deal with the police only through counsel, may not 

be subject to further interrogation until counsel has 

been made available to him, unless the accused has 

initiated further communication with the police.

DISCUSSION: The use of the defendant’s confession violated 

his rights under the Fifth Amendment to have counsel present 

344 Fifth Amendment 
during custodial interrogation. When an accused has invoked 

his right to have counsel present during custodial interrogation

(as opposed to his right to remain silent; see Michigan v. 

Mosley), a valid waiver of that right cannot be established by 

showing only that he responded to police-initiated interrogation 

after again being advised of his rights. In this case, the 

authorities initiated the second interrogation. The defendant’s 

confession, made without counsel present, did not amount to a 

valid waiver.



Arizona v. Roberson

 486 U.S. 675, 108 S. Ct. 2093 (1988)

FACTS: After being arrested at the scene of a burglary and 

given Miranda warnings, the defendant said he “wanted a 

lawyer before answering any questions.” Three days later, while 

still in custody, and without a lawyer having been appointed, a 

different officer approached the defendant about an unrelated 

crime. This officer was unaware of the defendant’s previous 

request for an attorney. He provided the defendant with 

Miranda warnings, which the defendant waived. The defendant 

gave an incriminating statement about the crime for which he 

had not yet been arrested.

ISSUE: Whether the Edwards rule bars custodial 

interrogation by another law enforcement officer on 

other offenses after a defendant has invoked his 

right to counsel under Miranda?

HELD: Yes. A request for counsel under the Fifth 

Amendment prohibits the government from 

approaching the defendant about any crime, unless 

counsel is present.

DISCUSSION: The principle of Edwards v. Arizona was 

designed to provide a bright-line rule for law enforcement 

officers that bars further government-initiated custodial 

interrogation of a suspect who has requested counsel. It is 

Fifth Amendment 345
immaterial whether it is a different law enforcement officer or 

that the questions are about a different offense. Subsequent 

law enforcement officer-initiated interrogation will result only in 

an invalid waiver. Such interrogation may occur only in the 

presence of counsel or if initiated by the defendant.



Minnick v. Mississippi

 498 U.S. 146, 111 S. Ct. 486 (1990)

FACTS: The defendant was wanted for murders committed 

in Mississippi. He was arrested in California. The day after his 

arrest, two FBI agents sought to interview the defendant. The 

defendant was advised of his Miranda rights and agreed to 

speak with the two agents. After answering some questions, the 

defendant stopped, telling the agents to “Come back Monday, 

when I have a lawyer,” and stating that he would “make a more

complete statement then with his lawyer present.” The agents 

then terminated the interview. Three days later, after the 

defendant had consulted with his lawyer on two or three 

occasions, a Sheriff from Mississippi arrived in California to 

question the defendant. The defendant was told that he “had to 

talk” to the Sheriff, and that he “could not refuse.” The 

defendant declined to sign a written waiver of his Miranda

rights, but agreed to talk to the Sheriff and made an 

incriminating statement. The defendant’s lawyer was not 

present during this interview.

ISSUE: Whether the defendant’s Fifth Amendment right to 

counsel was violated by the police-initiated 

questioning that was conducted after he had 

requested counsel, even though he had been given 

the opportunity to consult with his counsel?

HELD: Yes. The defendant’s Fifth Amendment right to 

counsel was violated. The questioning was initiated 

by the police after he had requested counsel.

346 Fifth Amendment 
DISCUSSION: In Miranda v. Arizona, the Court held that 

“the police must terminate an interrogation of an accused in 

custody if the accused requests the assistance of counsel.” To 

ensure compliance with this mandate, the Court held in Arizona 

v. Edwards that “once an accused requests counsel, officials 

may not reinitiate questioning until counsel has been made 

available to him.” The issue in this case was whether the police 

could reinitiate questioning after a defendant, who requested 

counsel, has been given the opportunity to consult with 

counsel. The Court relied upon the language in its Miranda

decision for the holding that “the Fifth Amendment protection of 

Edwards is not terminated or suspended by consultation with 

counsel.” In other words, “when counsel is requested, 

interrogation must cease, and officials may not reinitiate 

interrogation without counsel present, whether or not the 

accused has consulted with his attorney.” The need for counsel 

to protect a suspect’s Fifth Amendment right against selfincrimination includes not only the right to consult with 

counsel, but also to have counsel present during any 

questioning, if the suspect so desires.



Maryland v. Shatzer

 559 U.S. 98, 130 S. Ct. 1213 (2010)

FACTS: The defendant was initially approached by officers

for questioning while in prison serving a sentence for an 

unrelated conviction. Shatzer invoked his right to counsel, the 

interview was terminated, and the case closed. Still in prison 

more than 2 years later, the defendant was re-approached by 

officers, who had reopened the case. After being again advised 

of his Miranda rights and without counsel present, he waived 

his rights and made incriminating admissions that led to his 

conviction.

ISSUES: 1. Whether post-conviction incarceration in 

prison constitutes custody for purposes of 

Miranda?

Fifth Amendment 347
2. Whether a sufficient “break in custody” would 

permit officers to re-approach a suspect in 

custody who has previously invoked his right 

to counsel under Miranda and obtain a valid 

Miranda waiver without his counsel present?

HELD: 1. No. An incarcerated suspect serving a prison 

sentence is not in custody for purposes of 

Miranda, absent some additional restraint 

being placed on the suspect’s freedom of 

movement. 

2. Yes. A break in a suspect’s custody of 14 

days or more is sufficient to allow officers to 

re-approach a suspect in custody who has 

previously invoked his right to counsel and 

obtain a valid Miranda waiver from the 

suspect without his counsel being present.

DISCUSSION: The rule in Edwards v. Arizona presumes 

invalid any Miranda waiver given by a suspect in custody and 

without counsel present, when re-approached by officers after 

he had previously invoked his right to counsel. This rule was 

intended to protect a suspect who has invoked his right to 

counsel – signifying his unwillingness to deal with officers 

directly – from overzealous officers who might exploit the 

inherently coercive circumstances of prolonged custody by 

badgering him into waiving that right. Unlike a suspect being 

held in pre-trial or investigative custody however, a prisoner 

serving a prison sentence is not subject to the same coercive 

pressures that both Miranda and Edwards intended to address. 

The prisoner cannot reasonably view submission to his 

interrogator’s will as affecting the circumstances of his 

continued incarceration. A police interrogation of a prisoner 

housed in the general prison population is thus not deemed to 

be a custodial interrogation without some additional coercive 

restraint being imposed on the prisoner. 

Similarly, a sufficient break in custody, permitting a suspect to 

return to familiar people, surroundings, and routines, serves to 

348 Fifth Amendment 
diminish the coercive pressures of the custody such that the 

protections of Edwards are not justified. A break in custody of 

14 days or more, which includes a prisoner’s return to the 

general prison population after invoking his Miranda right to 

counsel, is of sufficient duration to terminate the need for 

Edwards protection and permit officers to re-approach a 

suspect in a custodial setting and obtain a valid Miranda

waiver.



Davis v. United States

 512 U.S. 452, 114 S. Ct. 2350 (1994)

FACTS: Police officers suspected the defendant of 

committing a murder and brought him to their office. After 

being read his rights under the Uniform Code of Military Justice 

(similar to Miranda rights), the defendant waived his rights to 

remain silent or to consult with an attorney and agreed to be 

interviewed by the officers. About a half hour into the 

interview, the defendant stated “Maybe I should talk to a 

lawyer.” The officers stated this request would be respected if 

the defendant wanted to speak to an attorney. The defendant 

stated “No, I’m not asking for a lawyer,” and continued with the 

interview for another hour. At that point, the defendant 

confirmed that he wanted to speak to an attorney before saying 

anything else and the interview was terminated. The 

government used several incriminating statements made during 

the interview at the defendant’s court-martial.

ISSUE: Whether the defendant’s statement concerning 

whether he should speak to a lawyer was a legal 

request for an attorney?

HELD: No. The defendant’s request for counsel must be 

unequivocal.

DISCUSSION: The right to request counsel during custodial 

interrogation was designed to act as a safeguard against the 

police badgering a defendant into waiving previously asserted 

Fifth Amendment 349
Miranda rights. At that moment, the government must 

discontinue their efforts to interview a suspect. However, the 

suspect must assert his right before this safeguard takes effect. 

The Supreme Court noted that it has a long history of denying 

the assertion of rights based on ambiguous references by a 

suspect. The suspect must articulate his desire to have counsel 

present in a sufficiently clear manner so that a reasonable

officer would understand that such articulation is a request for 

counsel. Otherwise, questioning of the suspect may continue.



Smith v. Illinois

 469 U.S. 91, 105 S. Ct. 490 (1984)

FACTS: Shortly after his arrest in connection with a 

robbery, the 18-year-old defendant was taken to an 

interrogation room for questioning by two officers. When the 

officers informed him that he had a right to his counsel’s 

presence at the interrogation, the accused responded “Uh, yeah. 

I’d like to do that.” Despite this response, the officers continued 

with their questioning, and when they subsequently asked the 

accused whether he wished to talk to them without a lawyer 

being present, the accused responded “Yeah and no, uh, I don’t 

know what’s what, really,” and “All right. I’ll talk to you then.” 

The defendant then told the officers that he knew in advance 

about the planned robbery but claimed that he was not a 

participant. After considerable probing, the defendant 

confessed, before he reasserted his earlier story that he only 

knew about the planned crime. Upon further questioning, the 

defendant again requested a lawyer saying “I wanta get a 

lawyer.” This time the officers honored the request and 

terminated the interrogation.

ISSUE: Whether the defendant’s initial request for counsel 

was ambiguous in light of his responses to further 

police questioning?

HELD: No. The defendant’s responses to continued 

government questioning did not render his initial 

350 Fifth Amendment 
request for counsel ambiguous under rule that all 

questioning must cease after an accused requests 

counsel.

DISCUSSION: The Court held that the accused’s initial 

request for counsel when he stated “Uh, yeah. I’d like to do 

that,” was not ambiguous. The officers should have terminated 

their questioning at that point. The defendant’s post-request 

responses to further interrogation could not be used to cast 

doubt on the clarity of his initial request for counsel. A valid 

waiver of an accused’s right to have his counsel present during 

interrogation cannot be established by showing only that the 

accused responded to further government-initiated custodial 

interrogation.



McNeil v. Wisconsin

 501 U.S. 171, 111 S. Ct. 2204 (1991)

FACTS: The defendant was arrested for armed robbery. 

Two officers advised him of his Miranda rights, and sought to 

question him. The defendant refused to answer any questions, 

but did not request an attorney. The officers ended the 

interview. The defendant appeared at a bail hearing on the 

armed robbery charge and accepted representation by a public 

defender. Later that day, an officer visited the defendant as a 

part of an investigation of a completely unrelated murder. The 

officer advised the defendant of his Miranda rights. The 

defendant signed a waiver form and made admissions regarding 

the murder.

ISSUE: Whether an accused’s request for counsel at an 

initial appearance on a charged offense constitutes 

an invocation of his Fifth Amendment right to 

counsel that precludes police interrogation on 

unrelated, uncharged offenses?

HELD: No. An accused’s invocation of his Sixth 

Amendment right to counsel during a judicial 

Fifth Amendment 351
proceeding (bail hearing) does not constitute an 

invocation of the right to counsel derived from 

Miranda rights.

DISCUSSION: The Sixth Amendment right to counsel does 

not attach until the initiation of the adversarial judicial process. 

Even then, it only serves to guarantee the right to have counsel 

present for critical stages of the adversarial process that has 

initiated the right in the first place. Miranda protections apply 

to uncharged matters but only if the suspect is placed in 

custody and confronted with government interrogation.

The defendant’s invocation of his Sixth Amendment right with 

respect to the armed robbery does not restrict the use of his 

statements regarding uncharged offenses. The Miranda right to 

counsel is not offense-specific. Once asserted, it prevents any 

further government-initiated interrogation outside the presence 

of counsel. However, the invocation of the Sixth Amendment 

right does not impart a Miranda right. The two different rights 

to counsel have different purposes and effects. The Miranda

protections are intended to ensure the suspect’s “desire to deal 

with the police only through counsel” for any encounter. The 

Sixth Amendment right is intended to protect the unaided 

layman at critical confrontations with the government after the 

initiation of the adversarial process with respect to a particular 

crime.



Oregon v. Bradshaw

 462 U.S. 1039, 103 S. Ct. 2830 (1983)

FACTS: Following the death of a minor in a vehicle accident, 

the defendant was given his Miranda rights and questioned by 

officers. The defendant was suspected of being the driver of the 

vehicle. While he denied driving the vehicle, the defendant 

admitted to furnishing alcohol to the minor. He was arrested 

for furnishing alcohol to a minor and again informed of his 

Miranda rights. Upon being told that he was suspected of being 

the driver of the vehicle, the defendant invoked his right to 

352 Fifth Amendment 
counsel and the conversation ended. Shortly thereafter, the 

defendant was being transported to the county jail, when he 

asked an officer, “Well, what is going to happen to me now?” 

The officer reminded the defendant he did not have to speak to 

the police and that if he chose to do so it would have to be of his 

free will. The defendant stated that he understood and a 

discussion followed in which the officer suggested that the 

defendant take a polygraph examination. The defendant 

agreed. The next day, before the polygraph examination, the 

defendant was read his Miranda warnings for a third time. 

When the polygraph examiner stated he did not believe the 

defendant was being truthful, the defendant admitted to driving 

the vehicle at the time of the fatal accident.

ISSUE: Whether there exist circumstances in which the 

government can continue to interrogate a defendant 

that has invoked his Fifth Amendment right to 

counsel?

HELD: Yes. If the defendant initiated the conversation 

with the government after invoking his right, the 

interrogation can resume.

DISCUSSION: The Court held that once a suspect invokes 

his right to counsel, that request must be strictly honored and 

all questioning must cease. Only after the suspect “initiates 

further communication, exchanges, or conversation with the 

police” can further interrogation take place. In other words, 

“before a suspect in custody can be subjected to further 

interrogation after he requests an attorney, there must be a 

showing that the ‘suspect himself initiates dialogue with the 

authorities.’” In this case, the defendant’s question to the 

officer, “Well, what is going to happen to me now?” showed a 

clear desire on the defendant’s part “for a generalized 

discussion about the investigation.” The defendant’s comment 

was distinct from some of the routine questions that necessarily 

arise when a suspect is in custody, such as a request to use the 

bathroom. Even if the accused initiates a conversation, the 

government still bears the burden of showing that the suspect 

waived his right to have counsel present.

Fifth Amendment 353


6. Waiver

Colorado v. Spring

 479 U.S. 564, 107 S. Ct. 851 (1987)

FACTS: The defendant killed a person named Walker in 

Colorado. Thereafter, an informant told ATF agents that the 

defendant was engaged in the interstate transportation of stolen 

firearms, and that the defendant had discussed his 

participation in the Colorado killing. Based on this information, 

ATF agents set up an undercover purchase of firearms from the 

defendant. After the purchase was made, the agents arrested 

the defendant and advised him of his rights. The defendant 

waived his Miranda rights and the agents questioned him about 

the firearms transactions. They also asked him about the 

Colorado murder. The defendant stated that he had “shot 

another guy once.” When asked if the defendant had shot a 

man named Walker, the defendant said “no.” Sometime later, 

state officers read the defendant his Miranda rights. After he 

waived these rights he confessed to the Colorado murder.

ISSUE: Whether a suspect must be advised of all the 

subjects about which he will be questioned in order 

to make a valid waiver of his Miranda rights?

HELD: No. The purpose of reading Miranda rights is to 

ensure the defendant does not feel compelled to 

make any statement.

DISCUSSION: A suspect’s awareness of all the crimes about 

which he could be questioned is not relevant in determining the 

validity of the decision to waive his rights. The Court is only 

interested in whether the suspect waived his or her Miranda

rights in a voluntary, knowing, and intelligent manner. The 

Court set out a two-part test to determine if a waiver was 

obtained through coercion: (1) whether the defendant 

relinquished the right voluntarily, and (2) if it was given with 

354 Fifth Amendment 
full awareness of the nature of the right being abandoned and 

the consequences of the decision to abandon it.



Connecticut v. Barrett

 479 U.S. 523, 107 S. Ct. 828 (1987)

FACTS: The defendant, while in custody for sexual assault, 

was advised of his Miranda warnings three times. On each 

occasion, after signing and dating an acknowledgment that he 

had been informed of his rights, the defendant indicated to the 

officers that he would not make a written statement. However, 

he was willing to talk about the incident that led to his arrest. 

After the second and third warnings, the defendant added that 

he would not make a written statement outside the presence of 

counsel. He then orally admitted to his involvement in the 

sexual assault.

ISSUE: Whether the defendant’s limited invocation of his 

right to counsel prohibits all interrogation?

HELD: No. As long as the officers scrupulously abided by 

the defendant’s requests they can proceed with the 

interrogation.

DISCUSSION: The fundamental purpose of the Miranda

rights is “to assure that the individual’s right to choose between 

speech and silence remains unfettered throughout the 

interrogation process.” Once the suspect is warned, he is free 

to exercise his own will in deciding whether or not to make a 

statement. 

The defendant’s limited requests for counsel were accompanied 

by affirmative announcements of his willingness to speak with 

the officers. The defendant’s decision need not be logical. It 

only needs to be voluntary.



Fifth Amendment 355
California v. Prysock

 453 U.S. 355, 101 S. Ct. 2806 (1981)

FACTS: The defendant was apprehended for commission of 

a murder. Prior to questioning, an officer informed the 

defendant as follows:

You have the right to remain silent. If you give up the right to 

remain silent, anything you say can and will be used as 

evidence against you in a court of law. You have the right to 

talk to a lawyer before you are questioned, have him present 

with you while you are being questioned, and all during the 

questioning. You have the right to have a lawyer appointed to 

represent you at no cost to yourself.

The defendant acknowledged that he understood these rights 

and then provided a taped statement to the officer. Based in 

part on his taped statement, the defendant was convicted of 

first-degree murder.

ISSUE: Whether an officer must use the precise language 

contained in the Miranda case?

HELD: No. An officer is not required to use the precise 

language contained in the Miranda case but must 

convey the equivalent information found in that 

case.

DISCUSSION: The Supreme Court does not require that an 

officer use the precise language contained in the Miranda case 

when notifying defendants of their Miranda warnings. The 

Court actually stated in Miranda that “the warnings required 

and the waiver necessary ... are, in the absence of a fully 

effective equivalent, prerequisites to the admissibility of any 

statement made by a defendant (emphasis added).” Further, in 

Rhode Island v. Innis, the Court discussed the Miranda case 

and noted that what was required was “the now familiar 

Miranda warnings ... or their equivalent.” In this case, “nothing 

in the warnings given the [defendant] suggested any limitation 

on the right to the presence of appointed counsel different from 

356 Fifth Amendment 
the clearly conveyed rights to a lawyer in general, including the 

right ‘to a lawyer before you are questioned ... while you are 

being questioned, and all during the questioning.”



Duckworth v. Eagan

 492 U.S. 195, 109 S. Ct. 2875 (1989)

FACTS: The defendant agreed to go to the police station to 

discuss a stabbing. The officer read the defendant a form 

purporting to be his Miranda rights. The defendant signed the 

form which contained all required Miranda warnings but which 

said “You have this right to the advice and presence of a lawyer 

even if you cannot afford to hire one. We have no way of giving 

you a lawyer, but one will be appointed for you if you wish, if 

and when you go to court.” The defendant claimed his 

innocence but was taken into custody. Twenty-nine hours 

later, he was interrogated and confessed after reading and 

signing a warning without the conditional provision previously 

added.

ISSUE: Whether informing a suspect that an attorney 

would be appointed for him “if and when you go to 

court” renders the Miranda warnings inadequate?

HELD: No. The law only requires that the suspect be 

informed that he has the right to an attorney before 

and during questioning, and that an attorney would 

be appointed for him if he could not afford one.

DISCUSSION: The Miranda decision required that certain 

warnings be given as a prerequisite to the admissibility of a 

custodial statement. However, the Court has never held that 

these must be given in the form set forth in the Miranda case. 

That form or a fully effective equivalent is sufficient. Miranda

compliance does not require that attorneys be produced on call, 

but only that the suspect be informed, as he was here, that he 

has the right to an attorney before and during questioning, and 

that an attorney would be appointed for him if he could not 

Fifth Amendment 357
afford one. If a law enforcement officer cannot provide 

appointed counsel, Miranda requires only that the officer not 

question a suspect unless he waives his right to counsel.



North Carolina v. Butler

 441 U.S. 369, 99 S. Ct.1755 (1979)

FACTS: The defendant was involved in the armed robbery of 

a gas station. At the time of his arrest on a fugitive warrant, the 

defendant was fully advised of his Miranda rights, although he

was not questioned at that time. Later, after it was determined 

that the defendant had an 11th grade education and was 

literate, he was given an “Advice of Rights” form containing the 

Miranda warnings, which he read. When asked if he 

understood his rights, the defendant stated that he did. 

However, the defendant refused to sign the waiver at the bottom 

of the form. He was then told that he did not need to either 

speak or sign the form, but that the agents would like to speak 

to him. The defendant stated, “I will talk to you, but I am not 

signing any form.” He then made an incriminating statement. 

The defendant said nothing when he was advised of his right to 

counsel, and at no time did he request counsel or attempt to 

terminate the questioning. He was ultimately convicted with 

the use of his verbal statement.

ISSUE: Whether the defendant validly waived his right to 

counsel at the time he made the incriminating 

statement, as required by Miranda?

HELD: Yes. Waivers may be made orally or in writing.

DISCUSSION: In Miranda, the Court held that an “express” 

statement (e.g., “I waive my right”) could constitute a valid 

waiver. However, the Court never made an express statement a 

requirement for obtaining a valid waiver. “An express written or 

oral statement of waiver of the right to remain silent or of the 

right to counsel is usually strong proof of the validity of that 

waiver, but is not inevitably either necessary or sufficient to 

358 Fifth Amendment 
establish waiver.” What is required, regardless of the form of 

the waiver, is that it be voluntary and knowing, considering “the 

particular facts and circumstances surrounding the case, 

including the background, experience, and conduct of the 

accused.” While the Court in Miranda held that mere silence, 

standing alone, is not enough to establish a valid waiver of 

rights, “that does not mean that the defendant’s silence, 

coupled with an understanding of his rights and a course of 

conduct indicating waiver, may never support a conclusion that 

a defendant has waived his rights.” In this case, the 

defendant’s waiver of his right to counsel can be inferred from 

his actions and words.



Oregon v. Elstad

 470 U.S. 298, 105 S. Ct. 1285 (1985)

FACTS: The defendant was identified as the suspect in a 

burglary. Two officers obtained an arrest warrant and went to 

his home. They found the defendant laying on his bed and 

asked him to get dressed and accompany them to the living 

room. One of the officers, without providing the defendant his 

Miranda warnings, asked the defendant if he knew why the 

officers were there. When the defendant responded that he did 

not, the officer told him that they believed the defendant was 

involved in the burglary. The defendant admitted he had been 

at the victim’s home. Upon arriving at the police station, the 

defendant was advised for the first time of his Miranda rights. 

After indicating that he understood his rights, the defendant 

waived them and gave the officers a full written confession. The 

defendant conceded that the officers made no threats or 

promises either at his residence or at the station house. At 

trial, the defendant contended that the first statement (given at 

the home) should be suppressed because no Miranda warnings 

had been provided, and that the second statement (given at the 

police station) should be suppressed under the “fruit of the 

poisonous tree” doctrine.

ISSUE: Whether the officers’ initial failure to read the 

Fifth Amendment 359
defendant his Miranda warnings, without more, 

“tainted” the subsequent confession given by the 

defendant after he had been advised of, and agreed 

to waive, his Miranda rights?

HELD: No. The officers’ initial failure to read the 

defendant his Miranda warnings, without more, did 

not “taint” the subsequent confession.

DISCUSSION: A police officer’s failure to administer 

Miranda warnings creates a presumption of compulsion. 

However, “a procedural Miranda violation differs in significant 

respects from violations of the Fourth Amendment, which have 

traditionally mandated a broad application of the ‘fruit of the 

poisonous tree’ doctrine.” While the defendant’s unwarned 

statement must be suppressed, “the admissibility of any 

subsequent statement should turn solely on whether it is 

knowingly and voluntarily given.” The Court concluded that, 

“absent deliberately coercive or improper tactics in obtaining 

the initial statement, the mere fact that a suspect has made an 

unwarned admission does not warrant a presumption of 

compulsion” with regard to any subsequent statements. 

Providing Miranda warnings to a suspect who has previously 

given a voluntary, but unwarned, statement “ordinarily should 

suffice to remove the conditions that precluded admission of the 

earlier statement.”



Missouri v. Seibert, 

 542 U.S. 600, 124 S. Ct. 2601 (2004)

FACTS: The defendant was arrested for participating in a 

murder. The officers specifically refrained from providing her 

with Miranda warnings and took her to the police station. After 

30 to 40 minutes or interrogation, she admitted to her role in 

the crime. The officers gave the defendant a short break, 

turned on a tape recorder, provided her Miranda warnings, and 

obtained a signed waiver of those protections. The officer then 

resumed questioning the defendant and she repeated her 

360 Fifth Amendment 
admissions. The officer testified that he made a “conscious 

decision” to withhold Miranda warnings from the defendant; 

using an interrogation technique he had been taught.

ISSUE: Whether Miranda warnings provided to the 

defendant after being placed in custody and 

thoroughly questioned are adequate?

HELD: No. Such “question-first” interrogation tactics 

invalidate subsequent Miranda warnings.

DISCUSSION: The purpose of the “question-first” tactic is to 

seek a particularly opportune moment to provide the warnings 

after the confession has already been secured. By withholding 

warnings until after a successful interrogation, they become 

ineffective in preparing the suspect for the follow up 

interrogation. The Court found that this “question-first” tactic 

is likely to lead to confusion on the part of the suspect because 

of the “perplexity about the reason for discussing the rights as 

that point, bewilderment being an unpromising frame of mind 

for knowledgeable discussion.”

This case is different from Oregon v. Elstad. In Elstad the 

Court held that an officer’s initial failure to warn was an 

“oversight” rather than a deliberate design. The connection 

between the first (pre-Miranda warnings) and second (postMiranda warnings) interviews with the police was “speculative 

and attenuated.” In Elstad, the questioning at a station house 

was significantly different from the short conversation that 

occurred in the defendant’s house. In the case at hand, the 

pre-Miranda interrogation occurred at the station house and 

the question was methodical and extensive. At the conclusion 

of the interrogation, most of the incriminating statements had 

been divulged. The defendant was only allowed 15 to 20 

minutes for a break and the post-Miranda interrogation 

transpired in the same location.



Fifth Amendment 361
Bobby v. Dixon

 565 U.S. ___, 132 S. Ct. 26 (2011)

FACTS: The defendant was suspected of being a coconspirator in a murder. During a chance encounter, an officer 

read the defendant his Miranda rights. The defendant refused 

to answer questions without his attorney present and left. Five 

days later, officers arrested the defendant for forgery, a crime 

related to the murder. The officers decided not to provide the 

defendant with Miranda warnings for fear that he would again 

refuse to speak without an attorney present. The defendant 

made several incriminating statements regarding the forgery 

but steadfastly denied involvement in the murder. After a four 

hour break in the interrogation, the defendant learned that his 

co-conspirator had cooperated with the government. He told 

the officers “I talked to my attorney, and I want to tell you what 

happened.” The officers read the defendant his Miranda rights, 

obtained a waiver, and the defendant provided a detailed 

confession.

ISSUE: Whether the officers’ intentional withholding of 

Miranda warnings during the first interrogation 

rendered the subsequent statement involuntarily 

obtained?

HELD: No. The Court found a no nexus between the 

unwarned statement and the warned statement 

that would render the second statement 

involuntary.

DISCUSSION: The Court distinguished this case from 

Missouri v. Seibert in that it did not find the “two-step 

interrogation technique” used in that case. “In Seibert, the 

suspect's first, unwarned interrogation left ‘little, if anything, of 

incriminating potential left unsaid,’ making it ‘unnatural’ not to 

‘repeat at the second stage what had been said before (quoting 

Seibert).’” In this instance, there was no confession to repeat 

after being provided Miranda warnings. “Four hours passed 

between [the defendant’s] unwarned interrogation and his 

receipt of Miranda rights, during which time he traveled from 

362 Fifth Amendment 
the police station to a separate jail and back again; claimed to 

have spoken to his lawyer; and learned that police were talking 

to his accomplice and had found [the victim’s] body. Things had 

changed.” As the Court found no nexus between the 

defendant’s “unwarned admission to forgery and his later, 

warned confession to murder” the confession was voluntarily 

obtained.



Michigan v. Tucker

 417 U.S. 433, 94 S. Ct. 2357 (1974)

FACTS: The defendant was arrested and brought to the 

police station for questioning about a rape. The officers asked 

the defendant if he wanted an attorney and that any statements 

he made could be used against him in court. They did not tell 

him he had the right to have an attorney appointed to represent 

him if he could not afford one himself. The defendant stated 

that he understood his rights and invoked the name of an 

associate, Henderson, as an alibi. The police interviewed 

Henderson. They learned that the defendant was not in his 

company at the time of the crime and made several 

incriminating statements to Henderson on the day following the 

crime. The police only knew of Henderson’s identity as a result 

of the defendant’s statements.

ISSUE: Whether the government may use information 

(Henderson’s statements) obtained after providing 

imperfect Miranda warnings?

HELD: Yes. The purpose of the exclusionary rule is 

designed to deter future law enforcement behavior.

DISCUSSION: The Court stated that “[J]ust as the law does 

not require that a defendant receive a perfect trial, only a fair 

one, it cannot realistically require that policemen investigating 

serious crimes make no errors whatsoever.” The police asked 

the defendant if he wanted an attorney, and he stated that he 

did not. “Whatever deterrent effect on future police conduct the 

Fifth Amendment 363
exclusion of those statements may have had, we do not believe 

it would be significantly augmented by excluding the testimony 

of the witness Henderson as well.”



United States v. Patane

 542 U.S. 630, 124 S. Ct. 2620 (2004)

FACTS: Officers approached the defendant at his home to 

discuss his possible connection to a gun crime and for violating 

a restraining order. After placing the defendant under arrest for 

violating the order, one of the officers began to read him the 

Miranda warnings. The defendant interrupted the officer, 

claiming to understand his rights. Without completing the 

Miranda warnings, the officer began questioning the defendant 

about a gun. The defendant volunteered several statements. 

He told the officers the gun was located in his residence and 

granted consent for its retrieval.

ISSUE: Whether the failure to provide adequate Miranda

warnings prohibits the government from using 

physical evidence discovered as a result of this 

violation?

HELD: No. The Miranda rule protects against violations of 

the self-incrimination clause. This clause is not 

implicated by the admission into evidence the 

physical evidence found through voluntary 

statements made by the defendant.

DISCUSSION: The Court held that “[T]he Miranda rule is 

not a code of police conduct, and police do not violate the 

Constitution (or even the Miranda rule, for that matter) by mere 

failures to warn.” The primary protection afforded by the selfincrimination clause is a prohibition on compelling a defendant 

to testify against himself at trial. “Potential violations occur, if 

at all, only upon the admission of unwarned statements into 

evidence at trial.” The Court recognized that the Miranda rule 

sweeps beyond those protections actually found in the self364 Fifth Amendment 
incrimination clause and is, therefore, reluctant to extend its 

reach without significant justification.

In the case at hand, the introduction of non-testimonial fruit of 

a voluntary statement does not implicate the self-incrimination 

clause. “The admission of such fruit presents no risk that a 

defendant’s coerced statements (however defined) will be used 

against him at a criminal trial.” Exclusion of the statements 

themselves serves as a complete remedy for any perceived 

Miranda violation. Note that the fruit of involuntary (through 

force or other coercive means) statements will continue to be 

suppressed.



Chavez v. Martinez

 538 U.S. 760, 123 S. Ct. 1994 (2002)

FACTS: After an altercation with the police that led to his 

arrest, the defendant was seriously injured. An investigating 

officer approached the defendant while receiving medical 

attention at the hospital. The defendant admitted that he took 

the gun from an officer’s holster and pointed it at the police. 

The defendant also stated “I am not telling you anything until 

they treat me,” though the officer continued the interview. At 

no point did the officer ever give the defendant Miranda

warnings. The defendant was never charged with the crimes 

but he filed a suit against the officer for depriving him of his 

Miranda warnings.

ISSUE: Whether an officer can be held liable for failing to 

provide Miranda warnings to suspect?

HELD: No. The Fifth Amendment’s protections prohibit 

the government from compelling a suspect from 

becoming a witness against himself in a criminal 

case. This did not occur.

DISCUSSION: The Court stated that as the defendant was 

“never prosecuted for a crime, let alone compelled to be a 

Fifth Amendment 365
witness against himself in a criminal case” a violation of his 

rights never occurred. A criminal case does not take place until 

there is “the initiation of legal proceedings.” The Court also 

stated that “it is enough to say that police questioning does not 

constitute a ‘case.’” As the defendant was not made to be a 

witness against himself in a criminal case, no violation of the 

Constitution occurred.



Moran v. Burbine

 475 U.S. 412, 106 S. Ct. 1135 (1986)

FACTS: The defendant was arrested for burglary. The

government obtained evidence suggesting that the defendant 

might be also responsible for the murder of a woman in 

Providence. The officers telephoned the Providence police and 

an hour later Providence officers arrived at the station to 

question the defendant. That same evening the defendant’s 

sister telephoned the Public Defender’s Office to obtain legal 

assistance for the defendant on the burglary charge. She was 

unaware that he was also suspected of involvement in a 

murder. At 8:15 p.m., an Assistant Public Defender telephoned 

the station, stated that she would act as the defendant’s 

counsel if the police intended to question him, and was told 

that he would not be questioned further until the next day. The 

Public Defender was not informed that the Providence police 

were present or that the defendant was a murder suspect. Less 

than an hour later, the Providence police interviewed the 

defendant after providing him with his Miranda warnings. The 

defendant admitted to committing the murder. At all relevant 

times, the defendant was unaware of his sister’s efforts to retain 

counsel and of the attorney’s telephone call, but at no time did 

he request an attorney.

ISSUE: Whether the police violated either the defendant’s 

Miranda rights or his Sixth Amendment right to 

counsel?

366 Fifth Amendment 
HELD: No. The defendant knowingly and voluntarily 

waived his Fifth Amendment rights and his Sixth 

Amendment right to counsel had not yet attached.

DISCUSSION: The Court held that the officer’s failure to 

inform the defendant of the attorney’s telephone call did not 

deprive him of information essential to his ability to knowingly 

waive his Fifth Amendment rights. Events occurring outside of 

a suspect’s presence and entirely unknown to him have no 

bearing on the capacity to comprehend and knowingly 

relinquish a constitutional protection. Once it is demonstrated 

that a suspect’s decision to waive his rights was uncoerced, that 

he at all times knew he could stand silent and request a lawyer, 

and that he was aware of the government’s intention to use his 

statements to secure a conviction, the analysis is complete and 

the waiver is valid as a matter of law.

Further, the conduct of the police did not violate the 

defendant’s Sixth Amendment right to counsel. This right 

initially attaches only after the first formal charging procedure, 

whereas the government’s conduct here occurred before the

defendant’s initial appearance. The Sixth Amendment becomes 

applicable only when the government’s role shifts from 

investigation to accusation through the initiation of the 

adversarial judicial process. Nor was the asserted government 

misconduct so offensive as to deprive the defendant of the 

fundamental fairness guaranteed by due process. Although on 

facts more egregious than those presented here police deception 

might rise to a level of a due process violation, the conduct 

challenged falls short of the kind of misbehavior that shocks the 

sensibilities of civilized society.



Fifth Amendment 367
7. Government Employees

Gardner v. Broderick

 392 U.S. 273, 88 S. Ct. 1913 (1968)

FACTS: The defendant was a police officer. He was 

subpoenaed to testify before a grand jury that was investigating 

alleged bribery and corruption of police officers. He was advised 

that the grand jury proposed to examine him concerning the 

performance of his official duties. The defendant was advised of 

his privilege against self-incrimination, but was asked to sign a 

“waiver of immunity” so that the grand jury could continue to 

look into his potential wrongdoing. He was told that he would 

be fired if he did not sign. Following his refusal, he was given an 

administrative hearing and was discharged solely for this 

refusal.

ISSUE: Whether a government employee who refuses to 

waive the privilege against self-incrimination may 

be dismissed because of that refusal?

HELD: No. The threat of the loss of financial position 

amounts to coercion.

DISCUSSION: The defendant’s testimony was demanded 

before the grand jury in part so that it could be used to 

prosecute him, and not just for the purpose of securing an 

accounting of his official duties. The mandate of the selfincrimination clause prohibits the attempt to coerce a waiver of 

immunity from the defendant. Threatened loss of employment 

amounts to coercion. However, if a government employee 

refuses to answer questions relating to performance of his 

official duties after being granted immunity (his statements 

could not be used in a criminal case), the privilege against selfincrimination does not prevent his dismissal.



368 Fifth Amendment 
Garrity v. New Jersey

 385 U.S. 493, 87 S. Ct. 616 (1967)

FACTS: The defendant was a police officer. A state statute 

required state employees to answer questions or forfeit their job 

and pension. The defendant was told:

1) Anything he said could be used against him in a 

criminal prosecution;

2) He could refuse to answer questions if the answers 

could tend to incriminate him; and

3) If he refused to answer he could be removed from 

his job.

The defendant made admissions and was convicted of a 

criminal offense in part based on the evidence consisting of his 

admissions.

ISSUE: Whether the defendant was deprived of his Fifth 

Amendment rights in view of the state statute?

HELD: Yes. The protection of the individual under the 

Fifth Amendment against coerced statements 

prohibits the use in subsequent criminal 

proceedings of statements obtained under threat of 

removal from a job.

DISCUSSION: Coercion that drives a confession can be 

mental as well as physical. The choice the government gave the 

defendant was between self-incrimination or job forfeiture. 

These choices were likely to exert such pressure as to prevent 

the defendant from making a free and rational choice. Because 

of the state statute, the defendant had a choice between a “rock 

and a whirlpool.” Making such a choice cannot be voluntary. 

The protection of the individual under the Fifth Amendment 

against coerced statements prohibits the use of these 

statements in subsequent criminal proceedings. However, the 

Fifth Amendment does not prohibit the use of these statements 

Fifth Amendment 369
in administrative or civil matters.



Kalkines v. United States

 473 F.2d 1391 (1973)

FACTS: The defendant was a federal employee who was 

suspected of taking money in return for favorable treatment. 

There was an on-going criminal investigation of the defendant 

concurrent with this civil/administrative inquiry. He was called 

for four interviews. In three of those interviews, the defendant 

was not told that his answers would not be used against him in 

a criminal prosecution. In one interview he was told of this fact. 

The defendant was fired for violating a personnel policy that 

required employees to provide information in their possession 

about agency matters and to allow agents to obtain information 

on employee financial matters. 

ISSUE: Whether the defendant was advised of his options 

and the consequences of his choice and was 

adequately assured of the protection against the 

use of his answers or their fruits in any criminal 

prosecution?

HELD: No. The government must provide sufficient 

warnings.

DISCUSSION: In citing Gardner v. Broderick, the appellate 

court reaffirmed that a person cannot be discharged simply 

because he invokes his Fifth Amendment right against selfincrimination in refusing to respond. The appellate court also 

cited Garrity v. New Jersey, holding that a later prosecution 

cannot constitutionally use statements, or their fruits, coerced 

from a government employee in an earlier disciplinary 

investigation by threat of removal from office if he fails to 

answer questions. A government employer can insist on 

answers or remove an employee for refusal to answer if the 

employee is adequately informed both that he is subject to 

discharge for not answering and that his replies (and their 

370 Fifth Amendment 
fruits) cannot be used against him in a criminal case.



Lefkowitz v. Turley

 414 U.S. 70, 94 S. Ct. 316 (1973)

FACTS: New York Municipal law required public contracts 

to provide that if a contractor refused to answer questions 

concerning a contract, the contract may be canceled and the 

contractor shall be disqualified from further public 

transactions. The defendants were subpoenaed to testify before 

a grand jury investigating charges of conspiracy. They refused 

to waive their right to remain silent. The state then initiated 

proceedings to terminate their current contracts.

ISSUE: Whether the government can compel public 

contractors to waive their right to be free from selfincrimination?

HELD: No. The government can only secure selfincriminating statements from witnesses if it first 

agrees that those statements will not be used in 

criminal prosecutions against the witnesses.

DISCUSSION: The purpose of the Fifth Amendment is to 

insure that persons are not compelled to give testimony that 

may prove that they were involved in criminal activity. While 

the state has a strong public interest in ferreting out fraud and 

other criminal activity as it relates to their contracts, it does not 

outweigh the importance of the self-incrimination clause. The 

Court further stated that a waiver of a right secured under 

threat of substantial economic sanction is not voluntarily made. 

If the state desires this testimony, it must ensure that any 

information gathered would not be used against the defendant 

in a criminal trial.



Fifth Amendment 371
LaChance v. Erickson

 522 U.S. 262, 118 S. Ct. 753 (1998)

FACTS: The defendants, federal employees, were subjected 

to adverse actions by their agencies. Each made false 

statements to agency investigators with respect to the 

misconduct with which they were charged. In each case, the 

agency additionally charged the false statement as a ground for 

adverse action, and the action taken against the employees 

were based in part on the added charge.

ISSUE: Whether the government may take adverse action 

against an employee for making a false statement 

during an agency investigation?

HELD: Yes. If answering an agency’s investigatory 

question could expose an employee to a criminal 

prosecution, he could exercise his Fifth Amendment 

right to remain silent, bus not lie.

DISCUSSION: The American legal system provides methods 

for challenging the government’s right to ask questions -- lying 

is not one of them. A citizen can decline to answer the 

government’s question, or answer it honestly. However, a 

citizen may not knowingly and willfully answer with the 

government with a falsehood without repercussion.

If answering an agency’s investigatory question could expose an 

employee to a criminal prosecution, he may exercise his Fifth 

Amendment right to remain silent. The Court stated that “it 

may well be that an agency, in ascertaining the truth or falsity 

of the charge, would take into consideration the failure of the 

employee to respond.” The Fifth Amendment does not forbid 

adverse inferences against parties in civil or administrative 

actions when they refuse to testify. The Fifth Amendment’s 

right to remain silent applies only to those cases with criminal 

ramifications.



372 Fifth Amendment 
NASA v. FLRA

 527 U.S. 229, 119 S. Ct. 1979 (1999)

FACTS: The Federal Service Labor-Management Relations 

Statute (FSLMRS) permits union participation at an employee 

examination conducted “by a representative of the agency” if the 

employee believes that the examination will result in 

disciplinary action and requests such representation. The 

NASA Office of Inspector General (OIG) began investigating a 

government employee. An investigator from the OIG’s office 

interviewed the employee and, while a union representative was 

allowed to attend the interview, the representative’s 

participation was curtailed. Because of this limitation on the 

representative’s participation, the union filed an unfair labor 

charge with the Federal Labor Relations Authority (FLRA).

ISSUE: Whether the NASA OIG investigator was a 

“representative” of NASA under the terms of the 

FSLMRS, so that the employee had a right to union 

representation during the interview?

HELD: Yes. The NASA OIG investigator qualified as a 

“representative” of NASA under the terms of the 

law.

DISCUSSION: The statute refers to “representatives of the 

agency,” and is not limited solely to those individuals who have 

management responsibilities. The term “representative” 

therefore includes OIG investigators of NASA. Because the 

employee was entitled to union representation, the 

investigator’s action in preventing active union representative 

participation was a violation of the FSLMRS.



Fifth Amendment 373
8. Miranda Exceptions

Harris v. New York

 401 U.S. 222, 91 S. Ct. 643 (1971)

FACTS: The defendant was on trial for selling a controlled 

substance to an undercover police officer. At the time of his 

arrest, police secured statements from the defendant in 

violation of his Miranda protections. The defendant testified at 

trial that the contents of the bag sold to the officer were 

represented as a controlled substance but was actually baking 

powder. This testimony contradicted those statements obtained 

in violation of his Miranda rights. On cross-examination, the 

prosecution asked the defendant if he recalled making 

incriminating statements after his arrest. The defendant 

testified that he could not recall those statements.

ISSUE: Whether the government can introduce statements 

that were obtained in violation of the defendant’s 

Miranda rights to impeach his testimony?

HELD: Yes. The government is permitted to introduce 

statements that were obtained in violation of the 

defendant’s Miranda rights but only for the limited 

purposes of impeaching his testimony.

DISCUSSION: The prosecution may not use Miranda-tainted 

statements in its case-in-chief. However, that does not preclude 

the use of these statements altogether. The Court noted that 

the impeachment process serves an invaluable function to the 

jury in assessing a witness’ credibility. The defendant’s right to 

testify does not include a right to commit perjury. Provided that 

the statements were trustworthy, such evidence can be used to 

impeach the defendant’s testimony.



374 Fifth Amendment 
New York v. Quarles

 467 U.S. 649, 104 S. Ct. 2626 (1984)

FACTS: A woman approached two officers, told them she 

had just been sexually assaulted, provided a description of the 

suspect, and stated the suspect had entered a nearby 

supermarket carrying a gun. One of the officers went into the 

supermarket, saw Quarles, who matched the description given 

by the victim, and chased him to the back of the store. The 

officer ordered Quarles to stop, and upon frisking him, the 

officer discovered Quarles was wearing an empty shoulder 

holster. The officer handcuffed Quarles and asked him where 

the gun was located. Quarles nodded toward some empty 

cartons and stated “the gun is over there.” The officer found the 

gun in one of the boxes and arrested Quarles.

ISSUE: Whether the officer was required to read Quarles 

his Miranda warnings before asking him where the 

gun was located?

HELD: No. The interest of public safety allowed the officer 

to ask about the gun without first reading Quarles 

his Miranda warnings.

DISCUSSION: Quarles was in custody for Miranda purposes 

when the officer asked him where the gun was located. 

Nonetheless, the Court held that there is an overriding “public 

safety” exception to the requirement that Miranda warnings be 

provided before a custodial interrogation. The Court concluded 

that Miranda warnings are not required when “police officers 

ask questions reasonably prompted by a concern for public 

safety.” Here, the officer was “confronted with the immediate 

necessity of ascertaining the whereabouts of a gun which [he] 

had every reason to believe the suspect had just removed from 

his empty holster and discarded in the supermarket.” While the 

gun remained concealed in the supermarket, it posed numerous 

dangers to public safety. The officer “needed an answer to his 

question not simply to make his case against [the defendant], 

but to insure that further danger to the public did not result 

from the concealment of the gun in a public area.”

Fifth Amendment 375


NOTES

376 Fifth Amendment 
X. SIXTH AMENDMENT RIGHT TO COUNSEL

A. ATTACHMENT OF RIGHT

Kirby v. Illinois

 406 U.S. 682, 92 S. Ct. 1877 (1972)

FACTS: The victim of a robbery was called to the police 

station for the purpose of identifying the defendant as a robber. 

The defendant had been arrested in connection with an 

unrelated criminal offense. At the time of the confrontation the 

defendant had not been advised of the right to counsel, nor did 

he ask for or receive legal assistance.

ISSUE: Whether the defendant was entitled to 

representation during the “show-up” under the 

Sixth Amendment?

HELD: No. The government had not yet initiated the 

adversarial process against the defendant for the 

robbery.

DISCUSSION: A person’s Sixth Amendment right to counsel 

attaches only at or after the time that adversary judicial 

proceedings have been initiated against him. This is not to say 

that a defendant in a criminal case has a constitutional right to 

counsel only at the trial itself. The right attaches at the time 

the process begins--whether by way of formal charge, 

preliminary hearing, indictment, information, or arraignment. 

The defendant, in this case, had no Sixth Amendment right to 

counsel.



Montejo v. Louisiana

 556 U.S. 778, 129 S. Ct. 2079 (2009) 

FACTS: The defendant was charged with first degree murder 

and appointed counsel at a preliminary hearing. Later that day, 

police read him his Miranda rights, and he agreed to 

Sixth Amendment 377
accompany them to locate the murder weapon. During the trip, 

the defendant wrote an inculpatory apology letter to the victim’s 

widow. When he returned from the trip, the defendant met his 

court-appointed lawyer for the first time. The letter was 

admitted at trial over defense objection.

ISSUE: Whether police may initiate interrogation of a 

defendant once he has been appointed counsel at 

arraignment or a similar proceeding?

HELD: Yes. Police may initiate interrogation of a 

defendant who has been appointed counsel unless 

he actually requests a lawyer or otherwise asserts 

his Sixth Amendment right to counsel.

DISCUSSION: The Court overturned its earlier decision in 

Michigan v. Jackson in which it held that if police initiate 

interrogation of a defendant after he has asserted his right to 

counsel at an arraignment or similar proceeding, any waiver of 

his right to counsel is invalid. The purpose of the rule was to 

prevent the police from badgering a defendant into changing his 

mind about his Sixth Amendment rights. A defendant who has 

simply been appointed an attorney and has never asked for 

counsel, however, has not necessarily made up his mind about 

his rights. The requirement that police advise a defendant of 

his Miranda rights prior to custodial interrogation and obtain a 

valid waiver is sufficient protection against such badgering. 



Rothgery v. Gillespie County

 554 U.S. 191, 128 S. Ct. 2578 (2008)

FACTS: Officers made a warrantless arrest of the defendant on 

a charge of felon in possession of a firearm, relying upon 

erroneous information that he had been previously convicted of 

a felony. They promptly brought the accused before a 

magistrate judge, where a probable cause determination was 

made, bail set, and formal notice of the charges given. No 

prosecutor was involved in or aware of the charges or 

378 Sixth Amendment
proceeding. The defendant was conditionally released on 

posting a surety bond. Since he could not afford an attorney, 

he made multiple requests for one to be appointed, all to no 

avail. Six months later, he was indicted for the same offense, 

rearrested, and jailed on $15,000 bail. Being indigent and 

unable to post bail, he remained jailed for three months. After 

the county did appointed the defendant counsel, he quickly won 

a bail reduction, securing his release. He assembled 

documentation of the lack of a prior felony conviction, and had 

the charges dismissed. He then sued under §1983 for violation 

of his Sixth Amendment right to counsel. 

ISSUE: Whether the Sixth Amendment right to counsel 

always attaches at an accused’s initial appearance.

HELD: Yes. An initial appearance automatically triggers 

the defendant’s Sixth Amendment right to counsel.

DISCUSSION: Even without a prosecutor’s knowledge of, 

involvement in, or commitment to a charge against an accused, 

the first appearance of an accused on charges before a judge 

triggers the Sixth Amendment right to the assistance of counsel. 

This is true even when the proceeding is not formally labeled an 

“initial appearance.” An accusation filed with a judicial officer 

is sufficiently formal, and bringing a defendant before a court 

for initial appearance signals a sufficient commitment to 

prosecute. Therefore, “[a] criminal defendant’s initial 

appearance before a judicial officer, where he learns of the 

charges against him and his liberty is subject to restriction, 

marks the start of adversary judicial proceedings that trigger 

the Sixth Amendment right to counsel.” 



United States v. Gouveia

 467 U.S. 180, 104 S. Ct. 2292 (1984)

FACTS: Four defendants, all of whom were inmates in a 

federal prison, were placed in administrative detention in 

individual cells pending the investigation of a fellow inmate’s 

Sixth Amendment 379
death. They remained in administrative detention without 

appointed counsel for approximately 19 months before their 

indictment for murder and their arraignment, when counsel 

was appointed for them.

ISSUE: Whether the defendants were entitled to appointed 

counsel during their administrative detention?

HELD: No. The Sixth Amendment right to counsel is not 

effective until the government has initiated 

adversarial proceedings.

DISCUSSION: The Court held that the defendants were not 

constitutionally entitled to the appointment of counsel while 

they were in administrative segregation and before any 

adversary judicial proceedings had been initiated against them. 

The right to counsel attaches only at or after the initiation of 

adversary judicial proceedings against a defendant. This 

interpretation of the Sixth Amendment right to counsel is 

consistent not only with the literal language of the Amendment, 

which requires the existence of both a “criminal [prosecution]” 

and an “accused,” but also with the purposes that the right to 

counsel serves, including assuring aid at trial and at “critical” 

pretrial proceedings when the accused is confronted with the 

intricacies of criminal law or with the expert advocacy of the 

public prosecutor, or both.



B. CRITICAL STAGES

1. Questioning

Brewer v. Williams

 430 U.S. 387, 97 S. Ct. 1232 (1977)

FACTS: The defendant was suspected of abducting and 

murdering a 10-year old girl. He was arrested, arraigned, and 

committed to jail 160 miles away from the crime scene. His 

attorney advised him not to make any statements. The officers 

380 Sixth Amendment
accompanying the defendant on his return trip agreed not to 

question him during the trip. One of the officers, which knew 

that the defendant was a former mental patient and was deeply 

religious, engaged him in a conversation covering a wide range 

of topics, including religion. The officer delivered what has been 

referred to as the “Christian burial speech.” He addressed the 

defendant as “Reverend” and said:

I want to give you something to think about.... They are 

predicting several inches of snow for tonight...you are the only 

person that knows where this little girl’s body is.... And since we 

are going right past the area...I feel we could stop and locate the 

body, that the parents of this little girl should be entitled to a 

Christian burial for the little girl.... We should stop and locate 

it...rather than waiting until... a snowstorm....

The officer stated: “I do not want you to answer me.... Just 

think about it....” The defendant made incriminating statements 

and directed the officers to evidence and the victim’s body.

ISSUE: Whether the defendant was “questioned” within the 

meaning of the Sixth Amendment?

HELD: Yes. The officer’s actions were designed to motivate 

the defendant into revealing information.

DISCUSSION: The right to counsel means at least that a 

person is entitled to the help of a lawyer at or after the time 

judicial proceedings have been commenced against him, 

whether by way of formal charge, preliminary hearing, 

indictment, information or arraignment. The Court found little 

doubt that the officer deliberately set out to elicit information 

from the defendant just as surely as, and perhaps more 

effectively than, if he had formally interrogated him. The 

“Christian burial speech” was equivalent to questioning. As the 

defendant had been interrogated without his attorney present, 

the officer violated his Sixth Amendment right to assistance of 

counsel.



Sixth Amendment 381
Patterson v. Illinois

 487 U.S. 285, 108 S. Ct. 2389 (1988)

FACTS: The defendant was arrested as a result of a gang 

fight in which one member of a rival gang was killed. Following 

his arrest, the defendant was advised of and waived his 

Miranda rights. He then acknowledged his involvement in the 

fight, but denied culpability in the murder. Two days later, 

while still in custody, the defendant was indicted. The officer 

that had initially questioned the defendant removed him from 

his jail cell and told the defendant that, because he had been 

indicted, he was being moved. When he learned that one 

particular gang member had not been indicted, the defendant 

asked the officer, “Why wasn’t he indicted, he did everything?” 

The defendant then began to explain his involvement in the 

crime. At that point, the officer interrupted the defendant and 

handed him a Miranda waiver form. The defendant initialed 

each of the warnings, signed the waiver form, and gave a 

lengthy statement implicating himself in the murder. Later that 

day, the defendant gave a second incriminating statement to a 

prosecutor. Before doing so, the defendant had again been 

advised of his Miranda rights and waived them. At trial, the 

defendant claimed that, because he had been indicted and had 

a Sixth Amendment right to counsel, the officer and the

prosecuting attorney could not initiate an interrogation with 

him. The defendant also contended that while Miranda

warnings are sufficient to waive a suspect’s Fifth Amendment 

rights, they are insufficient to waive the Sixth Amendment right 

to counsel.

ISSUES: 1. Once the Sixth Amendment right to counsel

attaches, is the government prohibited from 

questioning a suspect?

2. Whether a waiver of Miranda rights is 

sufficient to waive a suspect’s Sixth 

Amendment right to counsel?

382 Sixth Amendment
HELD: 1. No. Even though the Sixth Amendment right 

to counsel attaches, the government is not 

barred from questioning a suspect in all 

cases.

2. Yes. A suspect can effectively waive his Sixth 

Amendment right to counsel by waiving those 

rights via the Miranda waiver form.

DISCUSSION: Because the defendant had been indicted at 

the time he was interrogated by the officer and the prosecutor, 

he had a Sixth Amendment right to have the assistance of 

counsel at both interrogations. However, the fact that the 

defendant’s Sixth Amendment right to counsel was in existence 

at the time of the questioning does not mean that he exercised 

that right. In this case, the defendant never sought to exercise 

his right to have counsel present at either interrogation. “Had 

the defendant indicated he wanted the assistance of counsel, 

the authorities’ interview with him would have stopped, and 

further questioning would have been forbidden (unless the 

defendant called for such a meeting).”

The Court held that “as a general matter, an accused who is 

admonished with the warnings required by Miranda has been 

sufficiently appraised of the nature of his Sixth Amendment 

rights, and of the consequences of abandoning those rights, so 

that his waiver on that basis will be considered a knowing and 

intelligent one.” First, the accused is specifically notified of his 

right to counsel in the Miranda warnings. Second, the accused 

is advised of the “ultimate adverse consequence” of proceeding 

without a lawyer, namely, that any statement he chooses to 

make can be used against him in any subsequent criminal

proceedings. However, the Court made clear that there are 

circumstances where the post-indictment questioning of a 

suspect will not survive a Sixth Amendment challenge, even 

though the challenged practice would be constitutional under 

Miranda. For example, the Court has “permitted a Miranda

waiver to stand where a suspect was not told that his lawyer 

was trying to reach him during questioning,” whereas under the 

Sixth Amendment this waiver would not be valid. Also, “a 

Sixth Amendment 383
surreptitious conversation between an undercover police officer 

and an unindicted suspect would not give rise to any Miranda

violation as long as the ‘interrogation’ was not in a custodial 

setting; however, once the accused is indicted, such questioning 

would be prohibited.”



United States v. Henry

 447 U.S. 264, 100 S. Ct. 2183 (1980)

FACTS: The defendant was indicted and arrested for armed 

robbery of a bank. While he was in jail pending trial, 

government agents contacted an informant who was then an 

inmate confined in the same cellblock as the defendant. An 

officer instructed the informant to be alert to any statements 

made by prisoners but not to initiate conversations with or 

question the defendant regarding the charges against him. 

After the informant had been released from jail, he reported to 

the officer that he and the defendant had engaged in 

conversation and that the defendant made incriminating 

statements about the robbery. The officer paid the informant 

for furnishing the information.

ISSUE: Whether the use of the informant infringed on the 

defendant’s Sixth Amendment right to counsel?

HELD: Yes. By intentionally creating a situation likely to 

induce the defendant to make incriminating 

statements without the assistance of counsel, the 

government had violated defendant's Sixth 

Amendment right to counsel.

DISCUSSION: The Court noted that the defendant’s Sixth 

Amendment right to counsel had attached at the time he made 

the statements. Further, the Court held that the government’s 

specific mention of the defendant to the undercover informant, 

who was paid on a contingency fee basis, constituted the type of 

affirmative steps to secure incriminating information from 

defendant outside the presence of his counsel. Under these 

384 Sixth Amendment
facts, that the informant was acting under instructions as a 

paid informant for the government, and that the defendant was 

in custody and under indictment at the time, incriminating 

statements were “deliberately elicited” from the defendant 

within the meaning of Massiah. This is the type of evidence 

collection prohibited by the Sixth Amendment. 



Kuhlmann v. Wilson

 477 U.S. 436, 106 S. Ct. 2616 (1986)

FACTS: The defendant was arrested for murder. After his 

initial appearance, he was placed in a holding cell with a 

government informant. The informant was to listen to the 

defendant’s comments and report them to the police. He was 

not to ask any questions but to “keep his ears open.” The 

defendant made several incriminating statements to the 

informant.

ISSUE: Whether the government deprived the defendant of 

his right to counsel by placing an informant in his 

jail cell?

HELD: No. The government is not compelled to ignore the 

statements of a defendant.

DISCUSSION: Once the right to counsel has attached, the 

government is precluded from deliberately eliciting 

incriminating statements in the absence of the defendant’s 

lawyer. While the Court held in United States v. Henry that 

informants that use their positions of trust to elicit remarks are 

engaged in interrogation, that did not occur here. The 

defendant must show the government took some action that 

was deliberately designed to elicit incriminating statements.



Sixth Amendment 385
Fellers v. United States

 540 U.S. 519, 124 S. Ct. 1019 (2004)

FACTS: A grand jury indicted the defendant for conspiracy 

to distribute a controlled substance. Officers went to his home 

and informed the defendant that he had been indicted, that 

they had a warrant for his arrest and they wanted to talk to him 

about his participation. The officers explained that the 

indictment referred to the defendant’s association with others, 

and named four individuals. The defendant made incriminating 

statements about his involvement with these individuals. The 

officers took the defendant to a local jail and then, for the first 

time, advised him of his Miranda rights. The defendant signed 

Miranda waiver form and repeated his incriminating remarks.

ISSUE: Whether the defendant’s statements made at his 

home were the result of adversarial government 

questioning in violation of the Sixth Amendment?

HELD: Yes. The government deliberately elicited

incriminating information from the defendant after 

the adversarial process had been initiated and 

without counsel present or obtaining the 

defendant’s waiver of counsel.

DISCUSSION: An indictment initiates the adversarial 

process. From that moment onward, the government is 

prohibited from deliberately eliciting incriminating information 

from a defendant unless the defendant waives his right to 

assistance of counsel (Sixth Amendment). The Court had no 

doubt that the government deliberately elicited information from 

the defendant at his home. In fact, the officers told the 

defendant that they wanted to speak to him about his 

involvement in the crime for which he had been indicted. These 

statements were taken in violation of the defendant’s Sixth 

Amendment right to have counsel present.

As for the defendant’s statements made at the jailhouse, the 

Court noted that it had not had the occasion to consider 

whether the Fifth Amendment’s Elstad taint rule (from Oregon 

386 Sixth Amendment
v. Elstad (1985)) was applicable to a Sixth Amendment 

violation. The Court sent this issue back to the appellate court 

for further review.



2. Lineups

Gilbert v. California

 388 U.S. 263, 87 S. Ct. 1951 (1967)

FACTS: The defendant was suspected of various robberies 

in which the robber used a handwritten note to demand money. 

He was arrested and indicted. Approximately 16 days after his 

indictment and after he had been appointed counsel, police 

officers required the defendant to participate in a lineup without 

notice to his counsel. Numerous witnesses identified the 

defendant during this lineup and later identified him in court.

ISSUE: Whether the post-indictment lineup, conducted 

without notice to the defendant’s appointed 

counsel, violated the defendant’s Sixth Amendment 

right to counsel?

HELD: Yes. The defendant had a right to have counsel 

present at all critical stages, including lineups.

DISCUSSION: “Post-indictment pretrial lineups at which the 

accused is exhibited to identifying witnesses is a critical stage of 

the criminal prosecution.” Accordingly, the accused had a Sixth 

Amendment right to counsel at this proceeding. The “conduct 

of such a lineup without notice to and in the absence of the 

defendant’s appointed counsel denied him his Sixth 

Amendment right to counsel and calls in question the 

admissibility at trial of the in-court identifications of the 

defendant by witnesses who attended the lineup.”



Sixth Amendment 387
United States v. Wade

 388 U.S. 218, 87 S. Ct. 1926 (1967)

FACTS: Several weeks after the defendant was indicted for 

robbery he was, without notice to his appointed counsel, placed 

in a lineup. Each person in the lineup wore strips of tape on 

his face, as the robber allegedly had done. Upon direction each 

repeated words like those the robber allegedly had used. Two 

witnesses identified the defendant as the robber.

ISSUE: Whether the defendant was deprived of his Sixth 

Amendment right to counsel at the lineup?

HELD: Yes. Once the Sixth Amendment right to counsel 

attaches, the defendant is entitled to have counsel 

present at all critical stages.

DISCUSSION: The Sixth Amendment guarantees an 

accused the right to counsel at trial and any critical 

confrontation by the prosecution. This includes pretrial 

proceedings where the results could determine his fate and 

where the absence of counsel might deny his right to a fair trial. 

A post-indictment lineup is a critical confrontation at which the 

defendant is entitled to the aid of counsel. There is a great 

possibility of unfairness to the accused in lineups because of 

how they are frequently conducted: the dangers inherent in 

eyewitness identification, the suggestibility inherent in the 

context of the confrontations, and the unlikelihood that the 

accused can reconstruct what occurred in later hearings.



C. RIGHT TO COUNSEL

Massiah v. United States

 377 U.S. 201, 84 S. Ct. 1199 (1964)

FACTS: The defendant was indicted, along with another 

individual, for violating narcotics laws. The defendant retained 

a lawyer, pled not guilty, and was released on bail. Shortly after 

388 Sixth Amendment
the defendant was released, the other individual agreed to 

cooperate with the government in their continued investigation 

of the defendant. This individual permitted an officer to install 

a radio transmitter under the front seat of his automobile that 

would allow the agent to monitor conversations carried on in 

the vehicle. One evening, the individual and the defendant had 

a lengthy conversation in the vehicle that was overheard by the 

officer. During this conversation, the defendant made several 

incriminating statements. The statements made by the 

defendant were used to convict him at his subsequent trial.

ISSUE: Whether the defendant’s statements to the 

individual, after indictment and in the absence of 

his counsel, were obtained in violation of the Sixth 

Amendment?

HELD: Yes. The defendant has a Sixth Amendment right 

to the presence of counsel during any government 

questioning during the adversarial process related 

to those charges pending in the adversarial process.

DISCUSSION: A defendant’s Sixth Amendment right to 

counsel attaches at the beginning of the “adversarial judicial 

process.” Once the adversarial judicial process begins, a 

defendant has a right to have counsel present at all “critical 

stages” of the process, including when any agent of the 

government questions the defendant. In this case, the 

defendant was denied the basic protections of the Sixth 

Amendment “when there was used against him at his trial 

evidence of his own incriminating words, which federal agents 

had deliberately elicited from him after he had been indicted 

and in the absence of his counsel.”



Sixth Amendment 389
D. CRIME SPECIFIC

Maine v. Moulton

 474 U.S. 159, 106 S. Ct. 477 (1985)

FACTS: The defendant and co-defendant Colson were 

indicted for possession of stolen automobiles and parts. They 

appeared with their attorneys at arraignment and were released 

on bail. Before trial, Colson and his lawyers met with the police 

and Colson confessed to his participation with the defendant in 

the pending charges. He agreed to testify against the defendant 

and cooperate with the investigation. Colson also consented to 

having a recording device placed on his telephone to record his 

conversations with the defendant and to wear a body wire 

transmitter to record a meeting with the defendant during 

which he would discuss the pending charges. The defendant 

made incriminating statements during an encounter with 

Colson.

ISSUE: Whether the defendant’s Sixth Amendment right to 

counsel was violated by admission at trial of 

incriminating statements made to a government 

informant after indictment?

HELD: Yes. The defendant has a right to the presence of 

counsel for any government questioning that occurs 

after the Sixth Amendment has attached.

DISCUSSION: The Sixth Amendment guarantees the right to 

assistance of counsel. This assistance is not limited to 

participation in the trial but encompasses all critical stages 

(court hearings, lineups and government questioning). The 

right to counsel attaches at or after the time that adversarial 

judicial proceedings have been initiated. This occurs at the 

indictment or the filing of an information. This can occur at the 

initial appearance if the defendant expresses a desire to be 

represented by counsel. The co-defendant’s participation in the 

meeting was the “functional equivalent” of interrogation and 

violates this Sixth Amendment right. However, incriminating 

statements pertaining to other crimes, as to which the Sixth 

390 Sixth Amendment
Amendment right has not yet attached, are admissible at a trial 

for those offenses.



Texas v. Cobb

 532 U.S. 162, 121 S. Ct. 1335 (2001)

FACTS: While under arrest for an unrelated offense, the 

defendant confessed to a home burglary. However, he denied 

knowledge of a woman and child’s disappearance from the 

home. He was indicted for the burglary, and counsel was 

appointed to represent him. He later confessed to his father 

that he had killed the woman and child, and his father then 

contacted the police. While in custody, the defendant waived 

his Miranda rights and confessed to the murders. This 

confession was used against him in the murder trial. The 

defendant argued that the government deprived him of his Sixth 

Amendment right to counsel since the adversarial process had 

been initiated for a related offense (the burglary).

ISSUE: Whether the officers must provide counsel for 

closely related but uncharged criminal matters if 

counsel already represents the defendant?

HELD: No. The Sixth Amendment right to counsel only 

attaches to the crimes for which a defendant has 

been formally charged.

DISCUSSION: The Supreme Court held that, regardless of 

whether the murder charge was closely related factually to the 

burglary offense, the right to counsel was specific to the 

charged offense. Since the two offenses required different 

elements of proof, they are separate offenses. As prosecution 

had not been initiated for the murder offense at the time of the 

interrogation, no Sixth Amendment right to counsel had 

attached to it. The defendant had no right to the presence of 

his previously appointed counsel during the interrogation 

concerning the murder charge, and the confession resulting 

from that interrogation was admissible.

Sixth Amendment 391
Although the Sixth Amendment right to counsel clearly attaches

only to charged offenses, the Court has recognized that the 

definition of an “offense” is not limited to the four corners of a 

charging document. The test to determine whether there are two 

different offenses or only one is whether each provision requires

proof of a fact which the other does not. See Blockburger v. 

United States, 284 U.S. 299 (1932). The Blockburger test has 

been applied to delineate the scope of the Fifth Amendment’s 

Double Jeopardy Clause, which prevents multiple or successive 

prosecutions for the “same offense.” When the Sixth 

Amendment right to counsel attaches, it encompasses offenses 

that, even if not formally charged, would be considered the 

same offense under the Blockburger test.



E. CONFRONTATION CLAUSE

Melendez-Diaz v. Massachusetts

 557 U.S. 305, 129 S. Ct. 2527 (2009) 

FACTS: The government tried the defendant for distributing 

a controlled substance. At trial, the government placed into 

evidence bags seized during the arrest, and three “certificates of 

analysis” demonstrating the results of a forensic analysis 

performed on the contents. The certificates, sworn to before a 

notary public, described the weight and stated that the bags 

contained a substance found to be cocaine. These certificates 

were by analysts at the government laboratory.

ISSUE: Whether the certificates were “testimonial” 

evidence, requiring the analysts to testify subject to 

cross examination?

HELD: Yes. These notarized certificates are affidavits, 

which were created by the government to establish 

a fact at trial, are testimonial in nature and are 

subject to the Confrontation Clause.

392 Sixth Amendment
DISCUSSION: The Court relied on its decision in Crawford 

v. Washington, 541 U.S. 36 (2004) in affirming that the Sixth 

Amendment Confrontation Clause, at a minimum, “guarantees 

a defendant's right to confront those "who ‘bear testimony’ 

against him.” The Court found that “[T]here is little doubt that 

the documents at issue in this case fall within the ‘core class of 

testimonial statements’...” As affidavits, such as these here, 

that are created to establish evidence in a criminal proceeding 

are “testimonial,” their submission alone, absent some other 

rule or standard of law, fails to meet the Sixth Amendment 

standard. The Sixth Amendment “commands, not that evidence 

be reliable, but that reliability be assessed in a particular 

manner: by testing in the crucible of cross-examination... 

(citing Crawford).”



Bullcoming v. New Mexico

 564 U.S. ___, 131 S. Ct. 2705 (2011) 

FACTS: The defendant was arrested and charged with 

driving while intoxicated. At his trial, the trial court permitted 

the government to admit as evidence a forensic laboratory 

report which indicated the defendant’s intoxication. The 

prosecution did not call the analyst that created and signed the 

report, but rather, brought forward another analyst that was 

familiar with the laboratory’s procedures.

ISSUE: Whether the Sixth Amendment’s Confrontation 

Clause requires the government to produce the 

testimony of the analyst that obtained the results 

found in the report?

HELD: Yes. Neither the report nor a knowledgeable 

surrogate is a satisfactory substitute for effective 

cross-examination guaranteed by the Sixth 

Amendment.

DISCUSSION: The Court has consistently held “[A]s a rule, 

if an out-of-court statement is testimonial in nature, it may not 

Sixth Amendment 393
be introduced against the accused at trial unless the witness 

who made the statement is unavailable and the accused has 

had a prior opportunity to confront that witness.” A statement 

is “testimonial in nature” if its primary purpose is to prove “past 

events potentially relevant to later criminal prosecution.” This 

rule is designed to protect the defendant’s Sixth Amendment’s 

Confrontation Clause right to challenge adversarial testimonial 

evidence. The Court refused to create a “forensic evidence” 

exception to this rule.



Michigan v. Bryant

 562 U.S. ___, 131 S. Ct. 1143 (2011)

FACTS: Officers found a shooting victim mortally wounded. 

The victim told the officers that he had been shot by the 

defendant. He died soon thereafter. At the defendant’s trial, 

the officers testified as to what the deceased shooting victim 

had said and the defendant was found guilty of second-degree 

murder.

ISSUE: Whether the trial court’s admission of these 

statements denied the defendant of his right to 

confront his accuser?

HELD: No. The circumstances of the interaction between 

the victim and the officers was to enable the 

government in an ongoing emergency, so the 

statements were not “testimonial statements.”

DISCUSSION: The Court noted that the “[C]onfrontation 

Clause of the Sixth Amendment states: “In all criminal 

prosecutions, the accused shall enjoy the right . . . to be 

confronted with the witnesses against him.” In Crawford v. 

Washington, the Court “limited the Confrontation Clause's 

reach to testimonial statements and held that in order for 

testimonial evidence to be admissible, the Sixth Amendment 

‘demands what the common law required: unavailability and a 

prior opportunity for cross-examination.’”

394 Sixth Amendment
The Court determined that if the “‘primary purpose’ of an 

interrogation is ‘to enable police assistance to meet an ongoing 

emergency,’ (quoting Davis v. Washington)” the resulting 

statements are non-testimonial. In determining the “primary 

purpose,” reviewing courts are to look at “[t]he circumstances in 

which an encounter occurs-e.g., at or near the scene of the 

crime versus at a police station, during an ongoing emergency 

or afterwards...” Of course, “the existence of an ‘ongoing 

emergency’ at the time of an encounter between an individual 

and the police is among the most important circumstances 

informing the ‘primary purpose’ of an interrogation.



Hardy v. Cross

 565 U.S. ___, 132 S. Ct. 490 (2011)

FACTS: The victim of a sexual assault testified against the 

defendant in a trial that was later declared a mistrial. The 

government decided to retry the defendant the following year, 

but the victim could no longer be found despite constant efforts 

to locate her. The government asked to have her declared 

“unavailable for trial” so that her prior testimony could be 

introduced at the subsequent assault trial.

ISSUE: Whether the government can use prior testimony of 

a witness it can no longer locate?

HELD: Yes. If the government has made a good faith effort 

to locate the witness and the defendant had a prior 

opportunity to cross-examine that witness, the 

prior testimony can be admitted.

DISCUSSION: As a matter of constitutional procedure, the 

defendant has a right to confront those that bear witness 

against him. The defendant has a right to cross-examine those 

witnesses. However, if the defendant has previously confronted 

the witness, and that witness later becomes unavailable for 

trial, the Court has held that the prior testimony can be 

admitted into evidence. The government’s responsibility to 

Sixth Amendment 395
demonstrate that a witness is unavailable for trial is the duty of 

good faith to inquire about the location of the witness. The 

Court noted that “the Sixth Amendment does not require the 

prosecution to exhaust every avenue of inquiry, no matter how 

unpromising.”



396 Sixth Amendment
XI. ADDITIONAL CASES OF INTEREST

A. USE OF FORCE

Graham v. Connor

 490 U.S. 386, 109 S. Ct. 1865 (1989)

FACTS: Graham, a diabetic, felt the onset of an insulin 

reaction and desired to purchase some orange juice to 

counteract the reaction. Berry, a friend of the Graham’s, drove 

him to a convenience store. Graham, concerned about the 

number of people ahead of him at the checkout line, rushed out 

of the store and returned to Berry’s automobile. He asked Berry 

to take him to a friend’s house. Officer Connor observed 

Graham hastily enter and leave the store and became 

suspicious. Officer Connor made an investigative stop of the 

automobile. Although Berry explained that his friend was 

suffering from a “sugar reaction,” the officer ordered Berry and 

Graham to wait while he found out what happened in the 

convenience store. When the officer returned to his patrol car 

to call for backup, Graham got out of the car, ran around it 

twice, and sat down on the curb, where he passed out briefly. A 

number of other police officers responded to the officer’s request 

for backup. One of the officers rolled Graham over on the 

sidewalk and cuffed his hands tightly behind his back, ignoring 

Berry’s pleas to get him some sugar. Another officer said “I've 

seen a lot of people with sugar diabetes that never acted like 

this. Ain’t nothing wrong with the M. F. but drunk. Lock the 

S.B. up.” Several officers then lifted Graham up from behind, 

carried him over to Berry’s car, and placed him face down on its 

hood. Regaining consciousness, Graham asked the officers to 

check in his wallet for a diabetic decal that he carried. One of 

the officers told him to “shut up” and shoved his face down 

against the hood of the car. Four officers grabbed Graham and 

threw him headfirst into the police car. A friend of Graham’s 

brought some orange juice to the car, but the officers refused to 

let him have it. After receiving a report that Graham had done 

nothing wrong at the convenience store, the officers drove him 

home and released him. Graham sustained a broken foot, cuts 

on his wrists, a bruised forehead, and an injured shoulder; he 

Use of Force 397
also claimed to have developed a permanent loud ringing in his 

right ear. He sued the officers under Title 42 U.S.C. § 1983, 

alleging that they had used excessive force in making the 

investigatory stop.

ISSUE: Whether the constitutional standard governs a 

citizen’s claim that a law enforcement officer used 

excessive force is “reasonableness?”

HELD: Yes. Claims of excessive use of force in the course 

of making an arrest, investigatory stop, or other 

“seizure” of a person are examined under the 

Fourth Amendment’s “objective reasonableness” 

standard.

DISCUSSION: When an excessive force claim arises in the 

context of an arrest or investigatory stop, it is most properly 

characterized as one invoking the protections of the Fourth 

Amendment, which guarantees citizens the right “to be secure 

in their persons ... against unreasonable ... seizures.” 

Accordingly, all claims that law enforcement officers have used 

excessive force - deadly or not - in the course of an arrest, 

investigatory stop, or other “seizure” should be analyzed under 

the Fourth Amendment and its “reasonableness” standard. 

Further, the “reasonableness” of a particular seizure depends 

not only on when it is made, but also on how it is carried out. 

The Supreme Court has long recognized that the right to make 

an arrest or investigatory stop necessarily carries with it the 

right to use some degree of physical coercion or threat thereof to 

affect it.

In determining whether the use of force in a given situation was 

“reasonable,” courts consider all of the facts and circumstances 

of each particular case, including the severity of the crime at 

issue, whether the suspect poses an immediate threat to the 

safety of the officers or others, and whether he is actively 

resisting arrest or attempting to evade arrest by flight. The 

“reasonableness” of a particular use of force must be judged 

from the perspective of a reasonable officer on the scene, rather 

than with the 20/20 vision of hindsight. For example, the 

398 Use of Force
Fourth Amendment is not necessarily violated by an arrest 

based on probable cause, even though the wrong person is 

arrested, nor by the mistaken execution of a valid search 

warrant on the wrong premises. With respect to a claim of 

excessive force, the same standard of reasonableness at the 

moment applies. Not every push or shove, even if it may later 

seem unnecessary in the peace of a judge’s chambers, violates 

the Fourth Amendment. The calculus of reasonableness must 

embody allowance for the fact that officers are often forced to 

make split-second judgments - in circumstances that are tense, 

uncertain, and rapidly evolving - about the amount of force that 

is necessary in a particular situation. Finally, as in other 

Fourth Amendment contexts, the “reasonableness” inquiry in 

an excessive force case is an objective one: the question is 

whether the officers’ actions are “objectively reasonable” in light 

of the facts and circumstances confronting them, without 

regard to their underlying intent or motivation.



Tennessee v. Garner

 471 U.S. 1, 105 S. Ct. 1694 (1985)

FACTS: At about 10:45 p.m. two police officers were 

dispatched to answer a “prowler inside call.” Upon arriving at 

the scene they saw a woman standing on her porch and 

gesturing toward the adjacent house. She told them she had 

heard glass breaking and that “they” or “someone” was breaking 

in next door. While one of the officers radioed the dispatcher to 

say that they were on the scene, the second officer went behind 

the house. He heard a door slam and saw someone run across 

the backyard. The fleeing suspect, the defendant, stopped at a 

6-feet-high chain link fence at the edge of the yard. With the 

aid of a flashlight, the officer was able to see his face and 

hands. He saw no sign of a weapon, and, though not certain, 

was “reasonably sure” and “figured” that the defendant was 

unarmed. The officer testified he thought the defendant was 17 

or 18 years old and about 5’5” or 5’7” tall. In fact, the 

defendant, an eighth-grader, was 15. He was 5’4” tall and 

weighed somewhere around 100 or 110 pounds. While the 

Use of Force 399
defendant was crouched at the base of the fence, the officer 

called out “police, halt” and took a few steps toward him. The 

defendant began to climb over the fence. Convinced that if he 

made it over the fence he would elude capture, the officer shot 

him. The bullet hit the defendant in the back of the head. The 

defendant later died at a hospital. In using deadly force to 

prevent the escape, the officer was acting under the authority of 

a state statute and pursuant to his department’s policy. The 

statute provided that “[if], after notice of the intention to arrest 

the defendant, he either flee or forcibly resist, the officer may 

use all the necessary means to effect the arrest.” The 

department policy was slightly more restrictive than the statute, 

but still allowed the use of deadly force in cases of burglary. 

The defendant’s father brought suit under Title 42 U.S.C. § 

1983, alleging, among other things, that his son’s Fourth 

Amendment rights had been violated by the use of deadly force 

in this situation.

ISSUE: Whether deadly force may be used to prevent the 

escape of an apparently unarmed suspected felon?

HELD: No. Deadly force may not be used unless it is 

necessary to prevent the escape and the officer has 

probable cause to believe that the suspect poses a 

significant threat of death or serious physical injury 

to the officer or others.

DISCUSSION: Whenever an officer restrains the freedom of 

a person to walk away, he has “seized” that person. 

Apprehension by the use of deadly force is a seizure subject to 

the reasonableness requirement of the Fourth Amendment. To 

determine the constitutionality of a seizure a court must 

balance the nature and quality of the intrusion on the 

individual’s Fourth Amendment interests against the 

importance of the governmental interests alleged to justify the 

intrusion. The “reasonableness” of a seizure depends on not 

only when a seizure is made, but also how it is carried out.

Notwithstanding probable cause to seize a suspect, an officer 

may not always do so by killing him. The use of deadly force to 

400 Use of Force
prevent the escape of all felony suspects, without considering 

the circumstances, is constitutionally unreasonable. It is not 

better that all felony suspects die than that they escape. Where 

the suspect poses no immediate threat to the officer and no 

threat to others, the harm resulting from failing to apprehend 

him does not justify the use of deadly force to do so. An officer 

may not seize an unarmed, non-dangerous suspect by shooting 

him dead. For this reason, the state statute was found to be 

unconstitutional insofar as it authorized the use of deadly force 

against such fleeing suspects.

It was not, however, unconstitutional on its face. Where an 

officer has probable cause to believe that the suspect poses a 

threat of serious physical harm, either to the officer or to 

others, it is not constitutionally unreasonable to prevent escape 

by using deadly force. Thus, if the suspect threatened the 

officer with a weapon or there is probable cause to believe that 

he has committed a crime involving the infliction or threatened 

infliction of serious physical harm, deadly force may be used if 

necessary to prevent escape, and if, where feasible, some 

warning has been given.

In this case, the officer could not reasonably have believed that 

the defendant - young, slight, and unarmed - posed any threat. 

Indeed, the officer never attempted to justify his actions on any 

basis other than the need to prevent an escape. While the 

defendant was suspected of burglary, this fact could not, 

without regard to the other circumstances, automatically justify 

the use of deadly force. The officer did not have probable cause 

to believe that Garner, whom he correctly believed to be 

unarmed, posed any physical danger to himself or others.



Scott v. Harris

 550 U.S. 372, 127 S. Ct. 1769 (2007)

FACTS: In an effort to stop a speeding motorist, a police 

officer activated his blue flashing lights. The suspect sped away 

and the officer radioed for assistance and gave chase. The 

Use of Force 401
pursuit resulted in dangerous maneuvers by the suspect, 

including damage to one of the officers’ vehicles. “Six minutes 

and nearly 10 miles after the chase had begun,” a police officer 

attempted a maneuver designed to cause the fleeing vehicle to 

spin to a stop. The result, however, was that the officer applied 

his bumper to the rear of the suspect’s vehicle, who lost control 

of his vehicle and crashed. The suspect was “badly injured and 

was rendered a quadriplegic.”

ISSUE: Whether it is reasonable for an officer to take

actions that place a fleeing motorist at risk of 

serious injury or death in order to stop the 

motorist’s flight from endangering the lives of 

innocent bystanders?

HELD: Yes. “A police officer’s attempt to terminate a 

dangerous high-speed car chase that threatens the 

lives of innocent bystanders does not violate the 

Fourth Amendment, even when it places the fleeing 

motorist at risk of serious injury or death.”

DISCUSSION: The defendant’s actions “posed an actual and 

imminent threat to the lives of any pedestrians who might have 

been present, to other civilian motorists, and to the officers 

involved in the chase.” The officers were justified in taking 

some action. The Court asked “how does a court go about 

weighing the perhaps lesser probability of injuring or killing 

numerous bystanders against the perhaps larger probability of 

injuring or killing a single person?” An appropriate analysis 

includes taking “into account not only the number of lives at 

risk, but also their relative culpability.” In this instance, the 

defendant’s actions place a significant number of persons in 

danger, and the officers’ range of reasonable responses was 

limited. In this instance, ramming the vehicle was reasonable 

under the Fourth Amendment.



402 Use of Force
Plumhoff v. Rickard

 572 U.S. ___, 134 S. Ct. 2012 (2014)

FACTS: On July 18, 2004, around midnight, a police officer 

conducted a traffic stop on a car driven by Rickard because it 

had only one operating headlight. When Rickard failed to 

produce his driver’s license, the officer asked him to step out of 

the car. Instead of stepping out, Rickard sped away. The 

officer pursued Rickard on an interstate highway along with 

officers in five other police cars. During the pursuit, Rickard 

was swerving through traffic at speeds over 100 miles per hour. 

After Rickard exited the interstate highway, he made a sharp 

turn causing contact between his car and one of the police cars. 

This contact caused Rickard’s car to spin out into a parking lot 

and collide with Officer Plumhoff’s police car. Officers Evans 

and Plumhoff got out of their cars and approached Rickard’s 

car. Evans with gun in hand, pounded on the passenger side 

window of Rickard’s car. At this point, Rickard’s tires started 

spinning and his car was rocking back and forth, an indication 

that Rickard was using the accelerator even though his bumper 

was flush against the police car in front of him. Plumhoff fired 

three shots into Rickard’s car, but Rickard put his car in 

reverse and turned around, forcing Ellis to step to the side to 

avoid being struck. As Rickard accelerated down the street away 

from the officers, two other officers fired 12 shots towards the 

fleeing suspect. Rickard lost control of the car and crashed into 

a building. Both Rickard and his passenger, Allen, died from a 

combination of gunshot wounds and injuries suffered in the 

crash. 

Rickard’s daughter sued Plumhoff and five other police officers 

claiming the officers violated the Fourth Amendment by using 

excessive force to stop Rickard. 

ISSUE: Whether the Sixth Circuit improperly denied the 

officers qualified immunity by finding their use of 

force was unreasonable as a matter of law?

Use of Force 403
HELD: Yes. The officers' conduct did not violate the 

Fourth Amendment; therefore, the officers were 

entitled to qualified immunity.

DISCUSSION: Rickard led the officers on a chase with 

speeds exceeding 100 miles per hour and lasted over five 

minutes. During the chase, Rickard passed more than two 

dozen other vehicles, several of which were forced to alter their 

course. After Rickard’s car collided with a police car and 

appeared to be stopped, Rickard resumed maneuvering his car 

in an attempt to escape. Under the circumstances, the court 

found Rickard’s outrageously reckless driving posed a grave 

public safety risk. As a result, a reasonable officer could have 

concluded that Rickard was intent on resuming his flight, and if 

he were allowed to do so, he would once again pose a deadly 

threat for others on the road. Consequently, the court held the 

police officers acted reasonably by firing at Rickard to end that 

risk. 

The court added the officers were justified in firing 15 shots at 

Rickard, stating, “If police officers are justified in firing at a 

suspect in order to end a severe threat to public safety, the 

officers need not stop shooting until the threat has ended.” 

Here, during the 10-second span when the officers fired their 

shots, Rickard continued to flee until he crashed. In addition, 

the court stated Allen’s presence in the car had no bearing in 

the analysis of whether the officers acted reasonably by firing at 

Rickard because Fourth Amendment rights are personal and 

cannot be asserted by another person. As such, the court did 

not consider Allen’s presence in the car when determining the 

reasonableness of the officers’ actions. 

Finally, the court held even if the officers’ use of force against 

Rickard had been unreasonable, the officers would still have 

been entitled to qualified immunity. The court found that at the 

time of the incident, no clearly established law prohibited the 

officers from firing at a fleeing vehicle to prevent harm to others. 



404 Use of Force
Saucier v. Katz

 533 U.S. 194, 121 S. Ct. 2151 (2001)

FACTS: Katz attended a speech by the Vice President to 

voice opposition to the possibility that an Army hospital might 

be used for animal experiments. During the speech, Katz 

attempted to unfurl a banner. Military police officers had been 

warned by superiors of the possibility of demonstrations, and 

Katz had been identified as a potential protestor. As Katz began 

placing the banner on the side of a fence, the military police 

officers grabbed him from behind, took the banner, and rushed 

him out of the area. Officers had each of Katz’s arms, halfwalking, half-dragging him, with his feet barely touching the 

ground. Katz was wearing a visible, knee-high leg brace, 

although one of the officers testified he did not remember 

noticing it at the time. The officers took Katz to a nearby 

military van, where, Katz claimed, he was shoved or thrown 

inside. As a result of the shove, Katz fell to the floor of the van, 

where he caught himself just in time to avoid any injury. At 

least one other protester was arrested at about the same time 

as Katz. The officers drove Katz to a military police station, held 

him for a brief time, and then released him. Katz sued one of 

the officers for using excessive force during this encounter.

ISSUE: Whether the military police officer was entitled to 

qualified immunity on the claim of excessive force 

brought by Katz? 

HELD: Yes. The military police officer was entitled to 

qualified immunity because there was no clearly 

established rule that prevented the officer from 

using the amount of force that he did in arresting 

Katz.

DISCUSSION: Even if a constitutional violation occurred, an 

officer is still entitled to qualified immunity if the right violated 

was not clearly established at the time. In determining whether 

a right is clearly established for qualified immunity purposes, 

the contours of the right must be sufficiently clear that a 

reasonable officer would understand that what he is doing 

Use of Force 405
violates that right. In excessive force cases, an officer might 

correctly perceive all of the relevant facts, but have a mistaken 

understanding as to whether a particular amount of force is 

legal in those circumstances. If the officer’s mistake as to what 

the law requires is reasonable, however, the officer is entitled to 

the immunity defense.

In this case, the Court first assumed, for the sake of argument, 

that a Fourth Amendment violation had occurred. They then 

addressed whether the military officer should reasonably have 

known that the force he used in this instance (primarily the 

shove of Katz into the van, although also in the manner in 

which he hurried Katz away from the speaking area) was 

excessive under the circumstances. In finding that the officer’s 

conduct did not violate a clearly established right, the Court 

relied upon the following: First, the officer did not know the full 

extent of the threat Katz posed or how many other persons 

there might be who, in concert with Katz, posed a threat to the 

security of the Vice President. Second, there were other 

potential protestors in the crowd, and at least one other 

individual was arrested and placed into the van with Katz. 

Third, in carrying out the detention, as it was assumed the 

officers had the right to do, the officer was required to recognize 

the necessity to protect the Vice President by securing Katz and 

restoring order to the scene. Accordingly, it cannot be said 

there was a clearly established rule that would prohibit using 

the force the officer did to place Katz into the van to accomplish 

these objectives. Finally, regarding the shove into the van, the 

Court reiterated that not every push or shove, even if it may 

later seem unnecessary in the peace of a judge’s chambers, 

violates the Fourth Amendment.



406 Use of Force
B. CIVIL LIABILITY

Bivens v. Six Unknown Named Agents

of the Federal Bureau of Narcotics

 403 U.S. 388, 91 S. Ct. 1999 (1971)

FACTS: Bivens sued federal agents under Title 42 U.S.C. § 

1983 after they entered his apartment without a warrant. The 

agents searched his apartment, then placed him under arrest 

for violating narcotics laws. They placed Bivens in manacles in 

the presence of his wife and children. They also threatened to 

arrest his family. The agents took Bivens to the courthouse, 

then their headquarters. He was interrogated, fingerprinted, 

photographed, subjected to a visual strip search, and booked. 

The charges against Bivens were ultimately dismissed. Bivens 

alleged the search and his arrest were conducted “in an 

unreasonable manner.” Initially, the court dismissed Bivens’

lawsuit because Title 42 U.S.C. § 1983 was inapplicable to 

actions performed by federal officials. This ruling was affirmed 

by the court of appeals, and Bivens appealed to the Supreme 

Court.

ISSUE: Whether a violation of the Fourth Amendment by a 

federal official acting under color of federal 

authority gives rise to a cause of action for damages 

in federal court?

HELD: Yes. When a federal official acting under color of 

law violates the Fourth Amendment, a cause of 

action for damages may be pursued in federal 

court.

DISCUSSION: The Fourth Amendment guarantees to the 

people of the United States the absolute right to be free from 

unreasonable searches and seizures carried out by virtue of 

federal authority. And where federally protected rights have 

been violated, it has been the rule from the beginning that 

courts will be alert to adjust their remedies so as to grant the 

necessary relief to those who have been victimized. While the 

Fourth Amendment does not provide for its enforcement by an 

Civil Liability 407
award of money damages for the consequences of its violation, it 

is well settled that where legal rights have been invaded, and a 

federal statute provides for a general right to sue for such 

invasion, federal courts may use any available remedy to make 

good the wrong done. Here, Bivens’ complaint stated a cause of 

action under the Fourth Amendment, and he was entitled to 

recover money damages for any injuries he suffered as a result 

of the agents’ violation of that Amendment.



County Of Sacramento v. Lewis

 523 U.S. 833; 118 S. Ct. 1708 (1998)

FACTS: After a failed attempt to stop two suspects on a 

motorcycle, a police officer pursued them at a high rate of 

speed. For 75 seconds over a course of 1.3 miles in a 

residential neighborhood, the motorcycle wove in and out of 

oncoming traffic, forcing two cars and a bicycle to swerve off of 

the road. The motorcycle and patrol car reached speeds up to 

100 miles an hour, with the officer following at a distance as 

short as 100 feet (at that speed, his car would have required 

650 feet to stop). The pursuit ended after the motorcycle tipped 

over. By the time the officer slammed on his brakes, the 

operator of the motorcycle was out of the way, but his 

passenger was not. The patrol car skidded into him at 40 miles 

an hour, causing fatal injuries. The decedent’s family filed a 

lawsuit under Title 42 U.S.C. § 1983, alleging that decedent’s 

Fourteenth Amendment substantive due process right to life 

had been violated.

ISSUE: Whether a police officer violates the Fourteenth 

Amendment’s guarantee of substantive due process 

in a high-speed automobile chase aimed at 

apprehending a suspected offender?

HELD: It depends. In high-speed automobile chases, the 

standard to be used in determining whether a 

408 Civil Liability
violation of the Fourteenth Amendment’s 

substantive due process clause occurred is whether 

the officer’s conducted “shocks the conscience.”

DISCUSSION: The Supreme Court first noted that the 

Fourth Amendment’s “objective reasonableness” test was 

inapplicable in this case, because no “seizure” had taken place. 

A police pursuit in attempting to seize a person does not 

amount to a “seizure” within the meaning of the Fourth 

Amendment. Similarly, no Fourth Amendment seizure would 

take place where a pursuing police car sought to stop the 

suspect only by the show of authority represented by flashing 

lights and continuing pursuit, but accidentally stopped the 

suspect by crashing into him. A Fourth Amendment “seizure” 

occurs only when there is a governmental termination of 

freedom of movement through means intentionally applied.

Substantive due process claims protect the individual against 

arbitrary action of government officials. The Court has 

repeatedly recognized the “shocks the conscience” standard as 

appropriate in due process cases, and found it applicable here. 

In pursuit cases, a police officer deciding whether to give chase 

must balance on one hand the need to stop a suspect, and, on 

the other, the high-speed threat to all persons within the 

pursuit range. Accordingly, the Court held that high-speed 

chases with no intent to harm suspects do not give rise to 

liability under the Fourteenth Amendment. Here, the officer 

was faced with a course of lawless behavior for which the police 

were not to blame. They had done nothing to cause the 

motorcycle operator’s high-speed driving in the first place, 

nothing to excuse his flouting of the commonly understood law 

enforcement authority to control traffic, and nothing (beyond a 

refusal to call off the chase) to encourage him to race through 

traffic at excessive speeds. While prudence would have 

repressed the officer’s response, the officer’s instinct was to do 

his job as a law enforcement officer.



Civil Liability 409
Malley v. Briggs

 475 U.S. 335; 106 S. Ct. 1092 (1986)

FACTS: Officers were conducting a court-authorized wiretap 

on the telephone of a suspect. A log sheet of one of the calls 

intercepted during this operation appeared to contain 

incriminating references to marijuana use. The officer in charge 

of the investigation reviewed this log sheet and another from a 

second call monitored the same day. Based on these two calls, 

he prepared felony complaints, along with unsigned warrants 

for the arrest of various people, and supporting affidavits 

describing the two intercepted calls. The judge issued over 20 

arrest warrants for various individuals identified through the 

wiretap evidence. Ultimately, charges against Briggs and others 

were dropped when the grand jury did not return an 

indictment. A lawsuit was then brought pursuant to Title 42 

U.S.C. § 1983, alleging that, by applying for arrest warrants, the 

officer had violated their Fourth and Fourteenth Amendment 

rights. 

ISSUE: Whether immunity is proper for a law enforcement 

officer who causes a person to be unconstitutionally 

arrested by presenting a judge with a complaint 

and a supporting affidavit that fails to establish 

probable cause?

HELD: Yes. An officer who causes an unconstitutional 

arrest by presenting a judge with a complaint and

supporting affidavit that fails to establish probable 

cause is entitled to “qualified” immunity, rather 

than “absolute” immunity.

DISCUSSION: The Court noted that, as the qualified 

immunity defense has evolved, it provides ample protection to 

all but the plainly incompetent or those who knowingly violate 

the law. Thus, a defendant will not be immune if, on an 

objective basis, it is obvious that no reasonably competent 

officer would have concluded that a warrant should issue. 

However, if officers of reasonable competence could disagree on 

this issue, immunity should be granted.

410 Civil Liability
Only where the warrant application is so lacking in indicia of 

probable cause as to render official belief in its existence 

unreasonable will the shield of immunity be lost. The 

appropriate question to be answered is such cases is: whether a 

reasonably well-trained officer in the defendant’s position would 

have known that his affidavit failed to establish probable cause 

and that he should not have applied for the warrant. It is 

reasonable to require the officer applying for the warrant to 

minimize this danger by exercising reasonable professional 

judgment.



Reichle v. Howards

 566 U.S. ___, 132 S. Ct. 2088 (2012)

FACTS: While protecting the Vice President during a public 

visit, officers overheard the defendant state “‘I’m going to ask 

[the Vice President] how many kids he’s killed today.” They 

monitored the defendant’s actions more closely as he entered 

the line meet the Vice President. The defendant told the Vice 

President his “policies in Iraq are disgusting,” who thanked him 

and moved along. The defendant touched the Vice President’s 

shoulder as he departed. Shortly afterwards, an officer asked 

the defendant if he had assaulted the Vice President, which the 

defendant denied. The defendant also denied touching the Vice 

President. Confirming probable cause of the assault with 

another officer, the officer arrested for assault. These criminal 

charges were eventually dismissed but he defendant sued the 

officers for violating his Fourth Amendment right. He alleged 

that his arrest was motived by the exercise of his First 

Amendment rights.

ISSUE: Whether it was clearly established that an arrest 

supported by probable cause could violate the First 

Amendment?

Civil Liability 411
HELD: No. The officers were entitled to rely on qualified 

immunity because it was not clear that an arrest 

based on probable cause could violate the First 

Amendment.

DISCUSSION: The Court had to consider a line of cases in 

which lower courts established the unlawfulness of arrests if 

done in retaliation of a First Amendment right. “In this Court’s 

view, the presence of probable cause, while not a ‘guarantee’ 

that retaliatory motive did not cause the prosecution, still 

precluded any prima facie inference that retaliatory motive was 

the but-for cause of the plaintiff’s injury.” Given that the 

officers had probable cause for the arrest, the Court was 

satisfied that they could rely on qualified immunity as a 

defense. “Qualified immunity shields government officials from 

civil damages liability unless the official violated a statutory or 

constitutional right that was clearly established at the time of 

the challenged conduct.” “The ‘clearly established” standard is 

not satisfied here. This Court has never recognized a First 

Amendment right to be free from a retaliatory arrest that is 

supported by probable cause.” 



Wood v. Moss

 572 U.S. ___, 134 S. Ct. 2056 (2014)

FACTS: With permission from local law enforcement officials, a 

group of supporters and a group of protesters assembled on 

opposite sides of the street on which the President’s motorcade 

was to travel. At the last minute, the President decided to make 

an unscheduled stop at a restaurant for dinner. As a result, 

the President’s motorcade deviated from the planned route and 

proceeded to the outdoor dining area of the restaurant. After 

learning of the route change, the protestors moved down the 

sidewalk to the area in front of the restaurant, while the 

President’s supporters remained at their original location. At 

their new location, the protesters had a direct line of sight to 

the outdoor patio where the President was located. At the 

direction of Secret Service agents, state and local police officers 

412 Civil Liability
cleared the block on which the restaurant was located and 

moved the protesters two blocks away to a street beyond 

handgun or explosive reach of the President. The move placed 

the protesters one block farther away from the restaurant than 

the supporters. After the President dined, the motorcade left 

the restaurant and passed the President’s supporters who had 

remained in their original location. The protesters remained 

two blocks away, beyond the President’s sight. 

The protestors sued the Secret Service agents, claiming the 

agents engaged in viewpoint discrimination, in violation of the 

First Amendment. Specifically, the protesters claimed the 

agents denied the protesters equal access to the President when 

the agents moved the protesters away from the restaurant while 

allowing the supporters to remain in their original location. 

ISSUE: Whether the appellate court improperly denied 

qualified immunity to the Secret Service agents 

when it concluded that pro and anti-Bush 

demonstrators needed to be positioned an equal 

distance from the President while he was dining on 

the outdoor patio and then while he was traveling 

by motorcade?

HELD: Yes. The agents were entitled to qualified 

immunity. 

DISCUSSION: Qualified immunity protects government officials 

from liability for civil damages unless the plaintiff can establish 

the official violated a statutory or constitutional right, and that 

the right was clearly established at the time of the incident. 

First, the court stated it has never held a violation of a right 

guaranteed by the First Amendment gives rise to an implied 

cause of action for damages against federal officers. However, 

without deciding the issue, the court assumed an individual 

could sue a federal official for a First Amendment violation.

Next, the court held no clearly established law required Secret 

Service agents engaged in crowd control to ensure that groups 

Civil Liability 413
with differing viewpoints are at comparable locations or 

maintain equal distances from the President. The court noted 

when the 200 to 300 protesters moved from their original 

location to the area closer to the restaurant, they were within 

weapons range and had a largely unobstructed view of the 

President on the restaurant’s patio. Consequently, because of 

their location the protesters posed a potential security risk to 

the President. In contrast, the supporters, who remained in 

their original location, did not pose a security risk because a 

large two-story building blocked their line of sight and weapons 

access to the patio where the President dined. 



Millbrook v. United States

 569 U.S. ___, 133 S. Ct. 1441 (2013)

FACTS: A prisoner sued the federal government by alleging 

that, while in the custody of the Federal Bureau of Prisons he 

was sexually assaulted and verbally threatened by corrections 

officers. His lawsuit under the Federal Tort Claims Act (FTCA) 

was dismissed because the reviewing court held that, while the 

FTCA waives the government’s sovereign immunity for certain 

intentional acts, those acts must be alleged to have been 

committed while the officers are executing a search, seizing 

evidence, or making an arrest.

ISSUE: Whether the FTCA is applicable for the intentional 

torts conducted by law enforcement officers in 

activities other than executing a search, seizing 

evidence, or making an arrest?

HELD: Yes. Previous courts’ assertions that intentional 

torts are only actionable against the United States if 

conducted during a search, seizure or arrest are 

overturned.

DISCUSSION: The federal government cannot be subject to 

a lawsuit unless it has waived its sovereign immunity. 

Congress did this for negligent torts in the FTCA. Later, 

414 Civil Liability
Congress waived the federal government’s sovereign immunity 

for intentional torts arising out of the wrongful conduct of law 

enforcement officers. This is known as the “law enforcement 

proviso.” This proviso allows persons to sue the federal 

government for six different intentional torts (including assault) 

based on the misconduct of federal law enforcement officers 

that occur within the scope of employment.

The Court found that the “plain language of the law 

enforcement proviso answers when a law enforcement officer’s 

‘acts or omissions’ may give rise to an actionable tort claim 

under the FTCA.” The Court found the additional requirement 

(that these alleged torts occur during a search, seizure or arrest) 

to have no support within the statute. “Congress has spoken 

directly to the circumstances in which a law enforcement 

officer’s conduct may expose the United States to tort liability. 

Under the proviso, an intentional tort is not actionable unless it 

occurs while the law enforcement officer is ‘acting within the 

scope of his office or employment.’”



Civil Liability 415
C. BRADY MATERIAL

Brady v. Maryland

 373 U.S. 83; 83 S. Ct. 1194 (1963)

FACTS: The defendant and his companion, Boblit, were 

found guilty of murder in the first degree and were sentenced to 

death. Their trials were separate, with the defendant being 

tried first. At his trial, the defendant took the stand and 

admitted his participation in the crime, but he claimed that 

Boblit did the actual killing. The defendant’s counsel conceded 

that his client was guilty of murder in the first degree, asking 

only that the jury return that verdict “without capital 

punishment.” Prior to the trial, the defendant’s counsel had 

requested the prosecution to allow him to examine Boblit’s outof-court statements. Several of those statements were shown to 

him; but one dated July 9, 1958, in which Boblit confessed to 

the actual homicide, was not provided to the defense and did 

not come to the defendant’s attention until after he had been 

tried, convicted, sentenced, and his conviction had been 

affirmed. The defendant requested a new trial based on the 

newly discovered evidence.

ISSUE: Whether the government’s failure to provide the 

companion’s confession to the defendant violated 

the Due Process Clause of the Fourteenth 

Amendment?

HELD: Yes. The government’s failure to provide evidence 

to the defendant that would have been useful to the 

defense violated the Due Process Clause of the 

Fourteenth Amendment.

DISCUSSION: Society wins not only when the guilty are 

convicted, but when criminal trials are fair. The administration 

of justice suffers when the accused are treated unfairly. A 

prosecution that withholds evidence from a defendant which 

would tend to exculpate him or reduce the penalty helps shape 

a trial that bears heavily on the defendant. Accordingly, the 

Court held the suppression by the prosecution of evidence 

416 Other Cases
favorable to an accused upon request violates due process 

where the evidence is material either to guilt or to punishment, 

irrespective of the good faith or bad faith of the prosecution.



Banks v. Dretke

 540 U.S. 668, 124 S. Ct. 1256 (2004)

FACTS: Before the defendant’s murder trial, the government 

provided the defendant with the following statement “[W]e will, 

without the necessity of motions[,] provide you with all 

discovery to which you are entitled.” Thereafter, the 

government presented two witnesses to the jury and failed to 

draw attention to their false testimony. One witness falsely 

stated he was not a paid informant and another witness 

perjured himself about his pretrial preparation. The witness 

testified on three occasions that “he had not talked to anyone 

about his testimony.” However, the witness actually engaged in 

at least one “pretrial practice sessio[n]” in which prosecutors 

and a police officer coached him.

ISSUE: Whether the government’s concealment of offering a 

witness that was a paid informant and its 

involvement in coaching a witness is exculpatory 

evidence subject to Brady v. Maryland?

HELD: Yes. The government violates the principles of due 

process by allowing perjured testimony to be 

presented without challenge.

DISCUSSION: In Brady v. Maryland, the Court held that 

“the suppression by the prosecution of evidence favorable to an 

accused upon request violates due process where the evidence 

is material either to guilt or to punishment, irrespective of the 

good faith or bad faith of the prosecution.” In Strickler v. 

Greene, 527 U.S. 263 (1999), the Court further clarified that to 

establish an effective Brady claim, (1) the evidence must be 

favorable to the accused (2) the evidence must have been 

suppressed by the government (intentionally or unintentionally) 

Other Cases 417
and (3) the accused must have been harmed as a result.

In this case, the Court found that the defendant demonstrated 

the standards for a Brady claim. A government witness that is 

a paid informant qualifies as evidence advantageous to the 

defendant. The prosecution repeatedly allowed false testimony 

to stand uncorrected. The government represented that it held 

nothing back yet was silent when its witnesses perjured 

themselves. The Court concluded that the defendant was 

harmed by these suppressions as he could not properly 

impeach key witnesses for the government.



Giglio v. United States

 405 U.S. 150; 92 S. Ct. 763 (1972)

FACTS: The defendant was charged with passing forged 

money orders. At his trial, the key government’s key witness 

was named Taliento. Under cross-examination, Taliento denied 

that any promises had been made to him in exchange for his 

testimony, and the government attorney stated in his 

summation to the jury that Taliento “received no promises that 

he would not be indicted.” The defendant was convicted. While

his appeal was pending, the defendant discovered new evidence 

indicating the government had failed to disclose an alleged 

promise made to Taliento that he would not be prosecuted if he 

testified for the government.

ISSUE: Whether the government’s failure to disclose 

evidence that could affect the credibility of its 

witness a violation of the Due Process Clause?

HELD: Yes. The government must disclose evidence that 

could affect the credibility of its witness.

DISCUSSION: In Brady v. Maryland, the Supreme Court 

held the suppression of material evidence justifies a new trial 

notwithstanding the good or bad faith of the prosecution. When 

the reliability of a given witness may determine guilt or 

418 Other Cases
innocence, nondisclosure of evidence affecting credibility falls 

within this general rule. The Court does not, however, 

automatically require a new trial whenever a combing of the 

prosecutors’ files after the trial has disclosed evidence possibly 

useful to the defense, but not likely to have changed the verdict. 

A finding of materiality of the evidence is required under Brady. 

A new trial is required if the false testimony could in any 

reasonable likelihood have affected the judgment of the jury.

 



Smith v. Cain

 565 U.S. ___, 132 S. Ct. 627 (2012)

FACTS: The defendant was convicted of several murders 

substantially based upon testimony from a witness who

identified the defendant as the perpetrator. During the appeal 

process, the defendant obtained government records that 

included copies of the investigator’s notes. The notes indicated 

that on the night of the murders, the witness could not provide

a physical description of the perpetrator beyond the person’s 

race, and that the witness did not see the perpetrator’s face. 

The notes had not been provided to the defendant prior to trial.

ISSUE: Whether the notes constituted Brady material, 

requiring their disclosure to the defendant?

HELD: Yes. The notes were material to the defense and 

should have been turned over to the defendant.

DISCUSSION: The Court stated, “[U]nder Brady, the State 

violates a defendant's right to due process if it withholds 

evidence that is favorable to the defense and material to the 

defendant's guilt or punishment.” Evidence is “material” under 

Brady when there is a reasonable probability that, had the 

evidence been disclosed, the result of the proceeding would 

have been different. This standard does not require a finding 

that the defendant would have been found not guilty, but only 

that confidence in the trial’s outcome was undermined.



Other Cases 419
XII. OTHER CASES

Riverside v. McLaughlin

 500 U.S. 44, 111 S. Ct. 1661 (1991)

FACTS: The County of Riverside, California combined 

probable cause determinations with its arraignment procedures. 

These arraignments must be conducted without unnecessary 

delay and, in any event, within two business days of arrest.

ISSUE: Whether the government is providing the defendant 

with an initial appearance “without unnecessary 

delay?”

HELD: It depends. There is a presumption that initial 

appearances occurring within 48 hours of arrest 

are timely. 

DISCUSSION: The Court previously deciding against 

mandating jurisdictions to provide probable cause hearings 

immediately after taking a suspect into custody and completing 

booking procedures. The Court stated “...the Fourth 

Amendment permits a reasonable postponement of a probable 

cause determination while the police cope with the everyday 

problems of processing suspects through an overly burdened 

criminal justice system.” While expressing a desire to avoid 

providing a specific timeframe, the Court concluded that “a 

jurisdiction that provides judicial determinations of probable 

cause within 48 hours of arrest will, as a general matter, 

comply with the promptness requirement of...” the Fourth 

Amendment. The Court found that initial appearances that 

occur within 48 hours of arrest are presumed to be timely. The 

“burden shifts to the government to demonstrate the existence 

of a bona fide emergency or other extraordinary circumstance” 

after 48 hours have elapsed.



420 Other Cases
Sanchez-Llamas v. Oregon

 548 U.S. 331, 126 S. Ct. 2669 (2006)

FACTS: After a gun battle with police in which an officer was 

wounded, police arrested the defendant, a Mexican national. 

Officers interrogated him through use of an interpreter, 

complying with the requirements of Miranda. However, the 

officers never informed him of his right to have the Mexican 

consulate notified of his detention, as required under Article 36 

of the Vienna Convention on Consular Relations (VCCR). The 

defendant made admissions that the state sought to use at his 

trial for attempted murder and related offenses. The trial court 

denied a pre-trial motion to suppress the statements on 

grounds of involuntariness and the VCCR violation.

ISSUE: Whether violation of the consular notification 

provision of the VCCR requires suppression of a 

suspect’s statements to police.

HELD: No. Unlike violations of Fifth and Sixth 

Amendment constitutional rights, violations of a 

treaty obligation under the VCCR do not require 

suppression or exclusion of evidence.

DISCUSSION: The VCCR itself does not mandate exclusion of 

evidence or any other specific remedy for violations of its 

provisions. Instead, U.S. law determines whether the 

exclusionary rule applies. U.S. courts do not invoke the remedy 

of exclusion lightly, due to the negative impact on law 

enforcement objectives and the court’s own truth-finding 

function, and therefore primarily limit its use to deter 

constitutional violations in the gathering of evidence. The 

VCCR notification provision has little connection to evidence or 

statements obtained by police. Foreign nationals in U.S. 

Territory have all due process protections, including Fifth and 

Sixth Amendment rights, which adequately protect the same 

interests as the VCCR provision. A defendant whose consular 

notification rights under the VCCR were violated may raise a 

broader challenge to the voluntariness of any statements 

obtained.

Other Cases 421


Snyder v. Phelps

 562 U.S. 443, 131 S. Ct. 1207 (2011)

FACTS: For more than 20 years, the members of a church 

have publicized their message by picketed over 600 funerals for

military service members. During one of these pickets, 

congregation members picketed on public land adjacent to 

public streets near a U.S. Marine’s funeral. The picketers had 

notified the authorities prior to the funeral of its intent to picket 

at the time of the funeral, and the picketers complied with 

direction in presenting their protest. None of the picketers 

entered the funeral site property, appeared at the cemetery, 

shouted or use profanity, nor was there any demonstration of 

violence.

ISSUE: Whether the church’s demonstration near a funeral 

is protected under the First Amendment?

HELD: Yes. Speech that is directed at the matters of 

public concern is at the heart of the protection of 

the First Amendment.

DISCUSSION: The Court held that First Amendment speech 

issues turn “largely on whether that speech is of public or 

private concern, as determined by all the circumstances of the 

case.” The Court identified two instances in which speech is a 

matter of public concern: first, “when it can ‘be fairly considered 

as relating to any matter of political, social, or other concern to 

the community,’” [quoting Connick v. Myers, 461 U.S. 138 

(1983)], and when it “is a subject of legitimate news interest; 

that is, a subject of general interest and of value and concern to 

the public,” [quoting San Diego v. Roe, 543 U.S. 77 (2004)]. The 

inappropriate or controversial nature of the speech is not 

relevant to the determination of whether it is directed at a 

public concern.

In this case, even though the church’s demonstration was 

connected to a funeral, the Court held that this, by itself, did 

422 Other Cases
not alter the nature of its public speech. The church’s signs, 

exhibited on a public land next to a public street, reflected 

condemnation of much in society. The church’s lawful choice of 

where to present these concerns did not modify its public 

concern to a private one.



Smith v. United States

 568 U.S. ___, 133 S. Ct. 714 (2013)

FACTS: The defendant was tried for conspiracy and murder. 

He presented evidence to the jury that he had ended his 

participation in the ongoing conspiracy and that the statute-oflimitations had closed off the government’s prosecution on 

those grounds. The defendant then asserted that the burden of 

proof shifted to the government to disprove his affirmative 

defense.

ISSUE: Whether placing the burden of proof of a

withdrawal on the defendant is a violation of his 

due process rights?

HELD: No. Due process does not require the government 

to disprove the absence of any possible affirmative 

defense that might be employed.

DISCUSSION: The Court simply dismissed the defendant’s 

position by stating that “[A]llocating to a defendant the burden 

of proving withdrawal does not violate the Due Process Clause.” 

The government “must prove beyond a reasonable doubt” every 

element of a crime, but once it has done so, “[p]roof of the 

nonexistence of all affirmative defenses has never been 

constitutionally required,” citing Patterson v. New York, 432 

U.S. 197 (1977). The Court refused to extend such a rule in 

this case.



Other Cases 423
NOTES

424 Other Cases
XIII. ADDITIONAL RESOURCES

A. The United States Constitution

WE THE PEOPLE of the United States, in Order to form a more 

perfect Union, establish Justice, insure domestic Tranquility, 

provide for the common defence, promote the general Welfare, 

and secure the Blessings of Liberty to ourselves and our 

Posterity, do ordain and establish this Constitution for the 

United States of America. 

ARTICLE I.

SECTION 1. All legislative Powers herein granted shall be 

vested in a Congress of the United States, which shall consist of 

a Senate and House of Representatives. 

SECTION 2. 1 The House of Representatives shall be composed 

of Members chosen every second Year by the People of the 

several States, and the Electors in each State shall have the 

Qualifications requisite for Electors of the most numerous 

Branch of the State Legislature. 

2 No Person shall be a Representative who shall not have 

attained to the Age of twenty five Years, and been seven Years a 

Citizen of the United States, and who shall not, when elected, 

be an Inhabitant of that State in which he shall be chosen. 

3 Representatives and direct Taxes shall be apportioned among 

the several States which may be included within this Union, 

according to their respective Numbers, which shall be 

determined by adding to the whole Number of free Persons, 

including those bound to Service for a Term of Years, and 

excluding Indians not taxed, three fifths of all other Persons. 

The actual Enumeration shall be made within three Years after 

the first Meeting of the Congress of the United States, and 

within every subsequent Term of ten Years, in such Manner as 

they shall by Law direct. The Number of Representatives shall 

not exceed one for every thirty Thousand, but each State shall 

have at Least one Representative; and until such enumeration 

U.S. Constitution 425
shall be made, the State of New Hampshire shall be entitled to 

chuse three, Massachusetts eight, Rhode-Island and Providence 

Plantations one, Connecticut five, New-York six, New Jersey 

four, Pennsylvania eight, Delaware one, Maryland six, Virginia 

ten, North Carolina five, South Carolina five, and Georgia three. 

4 When vacancies happen in the Representation from any State, 

the Executive Authority thereof shall issue Writs of Election to 

fill such Vacancies. 

5 The House of Representatives shall chuse their Speaker and 

other Officers; and shall have the sole Power of Impeachment. 

SECTION 3. 1 The Senate of the United States shall be 

composed of two Senators from each State, chosen by the 

Legislature thereof, for six Years; and each Senator shall have 

one Vote. 

2 Immediately after they shall be assembled in Consequence of 

the first Election, they shall be divided as equally as may be 

into three Classes. The Seats of the Senators of the first Class 

shall be vacated at the Expiration of the second Year, of the 

second Class at the Expiration of the fourth Year, and of the 

third Class at the Expiration of the sixth Year, so that one third 

may be chosen every second Year; and if Vacancies happen by 

Resignation, or otherwise, during the Recess of the Legislature 

of any State, the Executive thereof may make temporary 

Appointments until the next Meeting of the Legislature, which 

shall then fill such Vacancies. 

3 No Person shall be a Senator who shall not have attained to 

the Age of thirty Years, and been nine Years a Citizen of the 

United States, and who shall not, when elected, be an 

Inhabitant of that State for which he shall be chosen.

4 The Vice President of the United States shall be President of 

the Senate, but shall have no Vote, unless they be equally 

divided.

5 The Senate shall chuse their other Officers, and also a 

426 U.S. Constitution
President pro tempore, in the Absence of the Vice President, or 

when he shall exercise the Office of President of the United 

States.

6 The Senate shall have the sole Power to try all Impeachments. 

When sitting for that Purpose, they shall be on Oath or 

Affirmation. When the President of the United States is tried, 

the Chief Justice shall preside: And no Person shall be 

convicted without the Concurrence of two thirds of the Members 

present.

7 Judgment in Cases of Impeachment shall not extend further 

than to removal from Office, and disqualification to hold and 

enjoy any Office of honor, Trust or Profit under the United 

States: but the Party convicted shall nevertheless be liable and 

subject to Indictment, Trial, Judgment and Punishment, 

according to Law.

SECTION 4. 1 The Times, Places and Manner of holding 

Elections for Senators and Representatives, shall be prescribed 

in each State by the Legislature thereof; but the Congress may 

at any time by Law make or alter such Regulations, except as to 

the Places of chusing Senators. 

2 The Congress shall assemble at least once in every Year, and 

such Meeting shall be on the first Monday in December, unless 

they shall by Law appoint a different Day. 

SECTION 5. 1 Each House shall be the Judge of the Elections, 

Returns and Qualifications of its own Members, and a Majority 

of each shall constitute a Quorum to do Business; but a smaller 

Number may adjourn from day to day, and may be authorized 

to compel the Attendance of absent Members, in such Manner, 

and under such Penalties as each House may provide. 

2 Each House may determine the Rules of its Proceedings, 

punish its Members for disorderly Behaviour, and, with the 

Concurrence of two thirds, expel a Member. 

3 Each House shall keep a Journal of its Proceedings, and from 

U.S. Constitution 427
time to time publish the same, excepting such Parts as may in 

their Judgment require Secrecy; and the Yeas and Nays of the 

Members of either House on any question shall, at the Desire of 

one fifth of those Present, be entered on the Journal. 

4 Neither House, during the Session of Congress, shall, without 

the Consent of the other, adjourn for more than three days, nor 

to any other Place than that in which the two Houses shall be 

sitting. 

SECTION 6. 1 The Senators and Representatives shall receive a 

Compensation for their Services, to be ascertained by Law, and 

paid out of the Treasury of the United States. They shall in all 

Cases, except Treason, Felony and Breach of the Peace, be 

privileged from Arrest during their Attendance at the Session of 

their respective Houses, and in going to and returning from the 

same; and for any Speech or Debate in either House, they shall 

not be questioned in any other Place.

2 No Senator or Representative shall, during the Time for which 

he was elected, be appointed to any civil Office under the 

Authority of the United States, which shall have been created, 

or the Emoluments whereof shall have been encreased during 

such time; and no Person holding any Office under the United 

States, shall be a Member of either House during his 

Continuance in Office. 

SECTION 7. 1 All Bills for raising Revenue shall originate in the 

House of Representatives; but the Senate may propose or 

concur with Amendments as on other Bills.

2 Every Bill which shall have passed the House of 

Representatives and the Senate, shall, before it become a Law, 

be presented to the President of the United States; If he approve 

he shall sign it, but if not he shall return it, with his Objections 

to that House in which it shall have originated, who shall enter 

the Objections at large on their Journal, and proceed to 

reconsider it. If after such Reconsideration two thirds of that 

House shall agree to pass the Bill, it shall be sent, together with 

the Objections, to the other House, by which it shall likewise be 

428 U.S. Constitution
reconsidered, and if approved by two thirds of that House, it 

shall become a Law. But in all such Cases the Votes of both 

Houses shall be determined by yeas and Nays, and the Names 

of the Persons voting for and against the Bill shall be entered on 

the Journal of each House respectively. If any Bill shall not be 

returned by the President within ten Days (Sundays excepted) 

after it shall have been presented to him, the Same shall be a 

Law, in like Manner as if he had signed it, unless the Congress 

by their Adjournment prevent its Return, in which Case it shall 

not be a Law.

3 Every Order, Resolution, or Vote to which the Concurrence of 

the Senate and House of Representatives may be necessary 

(except on a question of Adjournment) shall be presented to the 

President of the United States; and before the Same shall take 

Effect, shall be approved by him, or being disapproved by him, 

shall be repassed by two thirds of the Senate and House of 

Representatives, according to the Rules and Limitations 

prescribed in the Case of a Bill.

SECTION 8. 1 The Congress shall have Power To lay and collect 

Taxes, Duties, Imposts and Excises, to pay the Debts and 

provide for the common Defence and general Welfare of the 

United States; but all Duties, Imposts and Excises shall be 

uniform throughout the United States; 

2 To borrow Money on the credit of the United States;

3 To regulate Commerce with foreign Nations, and among the 

several States, and with the Indian Tribes; 

4 To establish an uniform Rule of Naturalization, and uniform 

Laws on the subject of Bankruptcies throughout the United 

States; 

5 To coin Money, regulate the Value thereof, and of foreign 

Coin, and fix the Standard of Weights and Measures; 

6 To provide for the Punishment of counterfeiting the Securities 

and current Coin of the United States; 

U.S. Constitution 429
7 To establish Post Offices and post Roads; 

8 To promote the Progress of Science and useful Arts, by 

securing for limited Times to Authors and Inventors the 

exclusive Right to their respective Writings and Discoveries; 

9 To constitute Tribunals inferior to the supreme Court; 

10 To define and punish Piracies and Felonies committed on the 

high Seas, and Offences against the Law of Nations; 

11 To declare War, grant Letters of Marque and Reprisal, and 

make Rules concerning Captures on Land and Water; 

12 To raise and support Armies, but no Appropriation of Money 

to that Use shall be for a longer Term than two Years; 

13 To provide and maintain a Navy; 

14 To make Rules for the Government and Regulation of the 

land and naval Forces; 

15 To provide for calling forth the Militia to execute the Laws of 

the Union, suppress Insurrections and repel Invasions;

16 To provide for organizing, arming, and disciplining, the 

Militia, and for governing such Part of them as may be 

employed in the Service of the United States, reserving to the 

States respectively, the Appointment of the Officers, and the 

Authority of training the Militia according to the discipline 

prescribed by Congress; 

17 To exercise exclusive Legislation in all Cases whatsoever, 

over such District (not exceeding ten Miles square) as may, by 

Cession of particular States, and the Acceptance of Congress, 

become the Seat of the Government of the United States, and to 

exercise like Authority over all Places purchased by the Consent 

of the Legislature of the State in which the Same shall be, for 

the Erection of Forts, Magazines, Arsenals, dock-Yards, and 

430 U.S. Constitution
other needful Buildings;--And

18 To make all Laws which shall be necessary and proper for 

carrying into Execution the foregoing Powers, and all other 

Powers vested by this Constitution in the Government of the 

United States, or in any Department or Officer thereof. 

SECTION 9. 1 The Migration or Importation of such Persons as 

any of the States now existing shall think proper to admit, shall 

not be prohibited by the Congress prior to the Year one 

thousand eight hundred and eight, but a Tax or duty may be 

imposed on such Importation, not exceeding ten dollars for each 

Person. 

2 The Privilege of the Writ of Habeas Corpus shall not be 

suspended, unless when in Cases of Rebellion or Invasion the 

public Safety may require it. 

3 No Bill of Attainder or ex post facto Law shall be passed. 

4 No Capitation, or other direct, Tax shall be laid, unless in 

Proportion to the Census or Enumeration herein before directed 

to be taken. 

5 No Tax or Duty shall be laid on Articles exported from any 

State. 

6 No Preference shall be given by any Regulation of Commerce 

or Revenue to the Ports of one State over those of another: nor 

shall Vessels bound to, or from, one State, be obliged to enter, 

clear, or pay Duties in another. 

7 No Money shall be drawn from the Treasury, but in 

Consequence of Appropriations made by Law; and a regular 

Statement and Account of the Receipts and Expenditures of all 

public Money shall be published from time to time. 

8 No Title of Nobility shall be granted by the United States: And 

no Person holding any Office of Profit or Trust under them, 

shall, without the Consent of the Congress, accept of any 

U.S. Constitution 431
present, Emolument, Office, or Title, of any kind whatever, from 

any King, Prince, or foreign State.

SECTION 10. 1 No State shall enter into any Treaty, Alliance, 

or Confederation; grant Letters of Marque and Reprisal; coin 

Money; emit Bills of Credit; make any Thing but gold and silver 

Coin a Tender in Payment of Debts; pass any Bill of Attainder, 

ex post facto Law, or Law impairing the Obligation of Contracts, 

or grant any Title of Nobility. 

2 No State shall, without the Consent of the Congress, lay any 

Imposts or Duties on Imports or Exports, except what may be 

absolutely necessary for executing it’s inspection Laws: and the 

net Produce of all Duties and Imposts, laid by any State on 

Imports or Exports, shall be for the Use of the Treasury of the 

United States; and all such Laws shall be subject to the 

Revision and Controul of the Congress. 

3 No State shall, without the Consent of Congress, lay any Duty 

of Tonnage, keep Troops, or Ships of War in time of Peace, enter 

into any Agreement or Compact with another State, or with a 

foreign Power, or engage in War, unless actually invaded, or in 

such imminent Danger as will not admit of delay. 

ARTICLE II.

SECTION 1. 1 The executive Power shall be vested in a 

President of the United States of America. He shall hold his 

Office during the Term of four Years, and, together with the Vice 

President, chosen for the same Term, be elected, as follows 

2 Each State shall appoint, in such Manner as the Legislature 

thereof may direct, a Number of Electors, equal to the whole 

Number of Senators and Representatives to which the State 

may be entitled in the Congress: but no Senator or 

Representative, or Person holding an Office of Trust or Profit 

under the United States, shall be appointed an Elector. 

3 The Electors shall meet in their respective States, and vote by 

Ballot for two Persons, of whom one at least shall not be an 

Inhabitant of the same State with themselves. And they shall 

432 U.S. Constitution
make a List of all the Persons voted for, and of the Number of 

Votes for each; which List they shall sign and certify, and 

transmit sealed to the Seat of the Government of the United 

States, directed to the President of the Senate. The President of 

the Senate shall, in the Presence of the Senate and House of 

Representatives, open all the Certificates, and the Votes shall 

then be counted. The Person having the greatest Number of 

Votes shall be the President, if such Number be a Majority of 

the whole Number of Electors appointed; and if there be more 

than one who have such Majority, and have an equal Number of 

Votes, then the House of Representatives shall immediately 

chuse by Ballot one of them for President; and if no Person have 

a Majority, then from the five highest on the List the said House 

shall in like Manner chuse the President. But in chusing the 

President, the Votes shall be taken by States, the 

Representation from each State having one Vote; A quorum for 

this Purpose shall consist of a Member or Members from two 

thirds of the States, and a Majority of all the States shall be 

necessary to a Choice. In every Case, after the Choice of the 

President, the Person having the greatest Number of Votes of 

the Electors shall be the Vice President. But if there should 

remain two or more who have equal Votes, the Senate shall 

chuse from them by Ballot the Vice President. 

4 The Congress may determine the Time of chusing the 

Electors, and the Day on which they shall give their Votes; 

which Day shall be the same throughout the United States. 

5 No Person except a natural born Citizen, or a Citizen of the 

United States, at the time of the Adoption of this Constitution, 

shall be eligible to the Office of President; neither shall any 

Person be eligible to that Office who shall not have attained to 

the Age of thirty five Years, and been fourteen Years a Resident 

within the United States. 

6 In Case of the Removal of the President from Office, or of his 

Death, Resignation, or Inability to discharge the Powers and 

Duties of the said Office, the Same shall devolve on the Vice 

President, and the Congress may by Law provide for the Case of 

Removal, Death, Resignation or Inability, both of the President 

U.S. Constitution 433
and Vice President, declaring what Officer shall then act as 

President, and such Officer shall act accordingly, until the 

Disability be removed, or a President shall be elected. 

7 The President shall, at stated Times, receive for his Services, a 

Compensation, which shall neither be encreased nor diminished 

during the Period for which he shall have been elected, and he 

shall not receive within that Period any other Emolument from 

the United States, or any of them. 

8 Before he enter on the Execution of his Office, he shall take 

the following Oath or Affirmation:--”I do solemnly swear (or 

affirm) that I will faithfully execute the Office of President of the 

United States, and will to the best of my Ability, preserve, 

protect and defend the Constitution of the United States.” 

SECTION 2. 1 The President shall be Commander in Chief of 

the Army and Navy of the United States, and of the Militia of the 

several States, when called into the actual Service of the United 

States; he may require the Opinion, in writing, of the principal 

Officer in each of the executive Departments, upon any Subject 

relating to the Duties of their respective Offices, and he shall 

have Power to grant Reprieves and Pardons for Offences against 

the United States, except in Cases of Impeachment. 

2 He shall have Power, by and with the Advice and Consent of 

the Senate, to make Treaties, provided two thirds of the 

Senators present concur; and he shall nominate, and by and 

with the Advice and Consent of the Senate, shall appoint 

Ambassadors, other public Ministers and Consuls, Judges of 

the supreme Court, and all other Officers of the United States, 

whose Appointments are not herein otherwise provided for, and 

which shall be established by Law: but the Congress may by 

Law vest the Appointment of such inferior Officers, as they 

think proper, in the President alone, in the Courts of Law, or in 

the Heads of Departments. 

3 The President shall have Power to fill up all Vacancies that 

may happen during the Recess of the Senate, by granting 

Commissions which shall expire at the End of their next 

434 U.S. Constitution
Session. 

SECTION 3. He shall from time to time give to the Congress 

Information of the State of the Union, and recommend to their 

Consideration such Measures as he shall judge necessary and 

expedient; he may, on extraordinary Occasions, convene both 

Houses, or either of them, and in Case of Disagreement between 

them, with Respect to the Time of Adjournment, he may 

adjourn them to such Time as he shall think proper; he shall 

receive Ambassadors and other public Ministers; he shall take 

Care that the Laws be faithfully executed, and shall 

Commission all the Officers of the United States. 

SECTION 4. The President, Vice President and all civil Officers 

of the United States, shall be removed from Office on 

Impeachment for, and Conviction of, Treason, Bribery, or other 

high Crimes and Misdemeanors. 

ARTICLE III.

SECTION 1. The judicial Power of the United States, shall be 

vested in one supreme Court, and in such inferior Courts as the 

Congress may from time to time ordain and establish. The 

Judges, both of the supreme and inferior Courts, shall hold 

their Offices during good Behaviour, and shall, at stated Times, 

receive for their Services, a Compensation, which shall not be 

diminished during their Continuance in Office. 

SECTION 2. 1 The judicial Power shall extend to all Cases, in 

Law and Equity, arising under this Constitution, the Laws of 

the United States, and Treaties made, or which shall be made, 

under their Authority;--to all Cases affecting Ambassadors,

other public Ministers and Consuls;--to all Cases of admiralty 

and maritime Jurisdiction;--to Controversies to which the 

United States shall be a Party;--to Controversies between two or 

more States;--between a State and Citizens of another State;--

between Citizens of different States,--between Citizens of the 

same State claiming Lands under Grants of different States, 

and between a State, or the Citizens thereof, and foreign States, 

Citizens or Subjects. 

U.S. Constitution 435
2 In all Cases affecting Ambassadors, other public Ministers 

and Consuls, and those in which a State shall be Party, the 

supreme Court shall have original Jurisdiction. In all the other 

Cases before mentioned, the supreme Court shall have 

appellate Jurisdiction, both as to Law and Fact, with such 

Exceptions, and under such Regulations as the Congress shall 

make.

3 The Trial of all Crimes, except in Cases of Impeachment, shall 

be by Jury; and such Trial shall be held in the State where the 

said Crimes shall have been committed; but when not 

committed within any State, the Trial shall be at such Place or 

Places as the Congress may by Law have directed. 

SECTION 3. 1 Treason against the United States, shall consist 

only in levying War against them, or in adhering to their 

Enemies, giving them Aid and Comfort. No Person shall be 

convicted of Treason unless on the Testimony of two Witnesses 

to the same overt Act, or on Confession in open Court. 

2 The Congress shall have Power to declare the Punishment of 

Treason, but no Attainder of Treason shall work Corruption of 

Blood, or Forfeiture except during the Life of the Person 

attainted.

ARTICLE IV.

SECTION 1. Full Faith and Credit shall be given in each State 

to the public Acts, Records, and judicial Proceedings of every 

other State. And the Congress may by general Laws prescribe 

the Manner in which such Acts, Records and Proceedings shall 

be proved, and the Effect thereof. 

SECTION 2. 1 The Citizens of each State shall be entitled to all 

Privileges and Immunities of Citizens in the several States. 

2 A Person charged in any State with Treason, Felony, or other 

Crime, who shall flee from Justice, and be found in another 

State, shall on Demand of the executive Authority of the State 

436 U.S. Constitution
from which he fled, be delivered up, to be removed to the State 

having Jurisdiction of the Crime. 

3 No Person held to Service or Labour in one State, under the 

Laws thereof, escaping into another, shall, in Consequence of 

any Law or Regulation therein, be discharged from such Service 

or Labour, but shall be delivered up on Claim of the Party to 

whom such Service or Labour may be due. 

SECTION 3. 1 New States may be admitted by the Congress 

into this Union; but no new State shall be formed or erected 

within the Jurisdiction of any other State; nor any State be 

formed by the Junction of two or more States, or Parts of 

States, without the Consent of the Legislatures of the States 

concerned as well as of the Congress.

2 The Congress shall have Power to dispose of and make all 

needful Rules and Regulations respecting the Territory or other 

Property belonging to the United States; and nothing in this 

Constitution shall be so construed as to Prejudice any Claims of 

the United States, or of any particular State. 

SECTION 4. The United States shall guarantee to every State 

in this Union a Republican Form of Government, and shall 

protect each of them against Invasion; and on Application of the 

Legislature, or of the Executive (when the Legislature cannot be 

convened) against domestic Violence. 

ARTICLE V.

The Congress, whenever two thirds of both Houses shall deem it 

necessary, shall propose Amendments to this Constitution, or, 

on the Application of the Legislatures of two thirds of the 

several States, shall call a Convention for proposing 

Amendments, which, in either Case, shall be valid to all Intents 

and Purposes, as Part of this Constitution, when ratified by the 

Legislatures of three fourths of the several States, or by 

Conventions in three fourths thereof, as the one or the other 

Mode of Ratification may be proposed by the Congress; Provided 

that no Amendment which may be made prior to the Year One 

U.S. Constitution 437
thousand eight hundred and eight shall in any Manner affect 

the first and fourth Clauses in the Ninth Section of the first 

Article; and that no State, without its Consent, shall be 

deprived of its equal Suffrage in the Senate.

ARTICLE VI.

1 All Debts contracted and Engagements entered into, before 

the Adoption of this Constitution, shall be as valid against the 

United States under this Constitution, as under the 

Confederation. 

2 This Constitution, and the Laws of the United States which 

shall be made in Pursuance thereof; and all Treaties made, or 

which shall be made, under the Authority of the United States, 

shall be the supreme Law of the Land; and the Judges in every 

State shall be bound thereby, any Thing in the Constitution or 

Laws of any State to the Contrary notwithstanding. 

3 The Senators and Representatives before mentioned, and the 

Members of the several State Legislatures, and all executive and 

judicial Officers, both of the United States and of the several 

States, shall be bound by Oath or Affirmation, to support this 

Constitution; but no religious Test shall ever be required as a 

Qualification to any Office or public Trust under the United 

States. 

ARTICLE VII.

The Ratification of the Conventions of nine States, shall be 

sufficient for the Establishment of this Constitution between the 

States so ratifying the Same.

438 U.S. Constitution
ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE 

CONSTITUTION OF THE UNITED STATES OF AMERICA, 

PROPOSED BY CONGRESS, AND RATIFIED BY THE 

LEGISLATURES OF THE SEVERAL STATES, PURSUANT TO 

THE FIFTH ARTICLE OF THE ORIGINAL CONSTITUTION.

AMENDMENT I.

Congress shall make no law respecting an establishment of 

religion, or prohibiting the free exercise thereof; or abridging the 

freedom of speech, or of the press; or the right of the people 

peaceably to assemble, and to petition the Government for a 

redress of grievances.

AMENDMENT II.

A well regulated Militia, being necessary to the security of a free 

State, the right of the people to keep and bear Arms, shall not 

be infringed.

AMENDMENT III.

No Soldier shall, in time of peace be quartered in any house, 

without the consent of the Owner, nor in time of war, but in a 

manner to be prescribed by law.

AMENDMENT IV.

The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and 

seizures, shall not be violated, and no Warrants shall issue, but 

upon probable cause, supported by Oath or affirmation, and 

particularly describing the place to be searched, and the 

persons or things to be seized.

AMENDMENT V.

No person shall be held to answer for a capital, or otherwise 

infamous crime, unless on a presentment or indictment of a 

Grand Jury, except in cases arising in the land or naval forces, 

or in the Militia, when in actual service in time of War or public 

danger; nor shall any person be subject for the same offense to 

be twice put in jeopardy of life or limb; nor shall be compelled in 

any criminal case to be a witness against himself, nor be 

deprived of life, liberty, or property, without due process of law; 

U.S. Constitution 439
nor shall private property be taken for public use without just 

compensation.

AMENDMENT VI.

In all criminal prosecutions, the accused shall enjoy the right to 

a speedy and public trial, by an impartial jury of the State and 

district wherein the crime shall have been committed, which 

district shall have been previously ascertained by law, and to be 

informed of the nature and cause of the accusation; to be 

confronted with the witnesses against him; to have compulsory 

process for obtaining witnesses in his favor, and to have the 

Assistance of Counsel for his defence.

AMENDMENT VII.

In Suits at common law, where the value in controversy shall 

exceed twenty dollars, the right of trial by jury shall be 

preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to 

the rules of the common law.

AMENDMENT VIII.

Excessive bail shall not be required, nor excessive fines 

imposed, nor cruel and unusual punishments inflicted.

AMENDMENT IX.

The enumeration in the Constitution, of certain rights, shall not 

be construed to deny or disparage others retained by the 

people.

AMENDMENT X.

The powers not delegated to the United States by the 

Constitution, nor prohibited by it to the States, are reserved to 

the States respectively, or to the people.

AMENDMENT XI.

The Judicial power of the United States shall not be construed 

to extend to any suit in law or equity, commenced or prosecuted 

against one of the United States by Citizens of another State, or 

by Citizens or Subjects of any Foreign State.

440 U.S. Constitution
AMENDMENT XII.

The Electors shall meet in their respective states and vote by 

ballot for President and Vice-President, one of whom, at least, 

shall not be an inhabitant of the same state with themselves; 

they shall name in their ballots the person voted for as 

President, and in distinct ballots the person voted for as VicePresident, and of the number of votes for each, which lists they 

shall sign and certify, and transmit sealed to the seat of the 

government of the United States, directed to the President of the 

Senate;--The President of the Senate shall, in the presence of 

the Senate and House of Representatives, open all the 

certificates and the votes shall then be counted;--The person 

having the greatest number of votes for President, shall be the 

President, if such number be a majority of the whole number of 

Electors appointed; and if no person have such majority, then 

from the persons having the highest numbers not exceeding 

three on the list of those voted for as President, the House of 

Representatives shall choose immediately, by ballot, the 

President. But in choosing the President, the votes shall be 

taken by states, the representation from each state having one 

vote; a quorum for this purpose shall consist of a member or 

members from two-thirds of the states, and a majority of all the 

states shall be necessary to a choice. And if the House of 

Representatives shall not choose a President whenever the right 

of choice shall devolve upon them, before the fourth day of 

March next following, then the Vice-President shall act as 

President, as in case of the death or other constitutional 

disability of the President.--The person having the greatest 

number of votes as Vice-President, shall be the Vice-President, 

if such numbers be a majority of the whole number of electors 

appointed, and if no person have a majority, then from the two 

highest numbers on the list, the Senate shall choose the VicePresident; a quorum for the purpose shall consist of two-thirds 

of the whole number of Senators, and a majority of the whole 

number shall be necessary to a choice. But no person 

constitutionally ineligible to the office of President shall be 

eligible to that of Vice-President of the United States.

U.S. Constitution 441
AMENDMENT XIII.

SECTION 1. Neither slavery nor involuntary servitude, except 

as a punishment for crime whereof the party shall have been 

duly convicted, shall exist within the United States, or any place 

subject to their jurisdiction.

SECTION 2. Congress shall have power to enforce this article 

by appropriate legislation.

AMENDMENT XIV.

SECTION 1. All persons born or naturalized in the United 

States, and subject to the jurisdiction thereof, are citizens of the 

United States and of the State wherein they reside. No State 

shall make or enforce any law which shall abridge the privileges 

or immunities of citizens of the United States; nor shall any 

State deprive any person of life, liberty, or property, without due 

process of law; nor to deny to any person within its jurisdiction 

the equal protection of the laws.

SECTION 2. Representatives shall be apportioned among the 

several States according to their respective numbers, counting 

the whole number of persons in each State, excluding Indians 

not taxed. But when the right to vote at any election for the 

choice of electors for President and Vice President of the United 

States, Representatives in Congress, the Executive and Judicial 

officers of a State, or the members of the Legislature thereof, is 

denied to any of the male inhabitants of such State, being 

twenty-one years of age, and citizens of the United States, or in 

any way abridged, except for participation in rebellion, or other 

crime, the basis of representation therein shall be reduced in 

the proportion which the number of such male citizens shall 

bear to the whole number of male citizens twenty-one years of 

age in such State.

SECTION 3. No person shall be a Senator or Representative in 

Congress, or elector of President and Vice President, or hold any 

office, civil or military, under the United States, or under any 

State, who, having previously taken an oath, as a member of 

Congress, or as an officer of the United States, or as a member 

of any State legislature, or as an executive or judicial officer of 

any State, to support the Constitution of the United States, 

shall have engaged in insurrection or rebellion against the 

442 U.S. Constitution
same, or given aid or comfort to the enemies thereof. But 

Congress may by a vote of two-thirds of each House, remove 

such disability.

SECTION 4. The validity of the public debt of the United 

States, authorized by law, including debts incurred for payment 

of pensions and bounties for services in suppressing 

insurrection or rebellion, shall not be questioned. But neither 

the United States nor any State shall assume or pay any debt or 

obligation incurred in aid of insurrection or rebellion against 

the United States, or any claim for the loss or emancipation of 

any slave; but all such debts, obligations and claims shall be 

held illegal and void.

SECTION 5. The Congress shall have the power to enforce, by 

appropriate legislation, the provisions of this article.

AMENDMENT XV.

SECTION 1. The right of citizens of the United States to vote 

shall not be denied or abridged by the United States or by any 

State on account of race, color, or previous condition of 

servitude.

SECTION 2. The Congress shall have the power to enforce this 

article by appropriate legislation.

AMENDMENT XVI.

The Congress shall have power to lay and collect taxes on 

incomes, from whatever sources derived, without apportionment 

among the several States, and without regard to any census or 

enumeration.

AMENDMENT XVII.

The Senate of the United States shall be composed of two 

Senators from each State, elected by the people thereof, for six 

years; and each Senator shall have one vote. The electors in

each State shall have the qualifications requisite for electors of 

the most numerous branch of the State legislatures. 

When vacancies happen in the representation of any State in 

the Senate, the executive authority of such State shall issue 

writs of election to fill such vacancies: Provided, That the 

legislature of any State may empower the executive thereof to 

U.S. Constitution 443
make temporary appointments until the people fill the vacancies 

by election as the legislature may direct. 

This amendment shall not be so construed as to affect the 

election or term of any Senator chosen before it becomes valid 

as part of the Constitution.

AMENDMENT XVIII.

SECTION 1. After one year from the ratification of this article 

the manufacture, sale, or transportation of intoxicating liquors 

within, the importation thereof into, or the exportation thereof 

from the United States and all territory subject to the 

jurisdiction thereof for beverage purposes is hereby prohibited. 

SECTION 2. The Congress and the several States shall have 

concurrent power to enforce this article by appropriate 

legislation. 

SECTION 3. This article shall be inoperative unless it shall 

have been ratified as an amendment to the Constitution by the 

legislatures of the several States, as provided in the 

Constitution, within seven years from the date of the 

submission hereof to the States by the Congress.

AMENDMENT XIX.

The right of citizens of the United States to vote shall not be 

denied or abridged by the United States or by any State on 

account of sex. 

Congress shall have power to enforce this article by appropriate 

legislation.

AMENDMENT XX.

SECTION 1. The terms of the President and the Vice President 

shall end at noon on the 20th day of January, and the terms of 

Senators and Representatives at noon on the 3rd day of 

January, of the years in which such terms would have ended if 

this article had not been ratified; and the terms of their 

successors shall then begin.

SECTION 2. The Congress shall assemble at least once in 

every year, and such meeting shall begin at noon on the 3rd day 

of January, unless they shall by law appoint a different day.

444 U.S. Constitution
SECTION 3. If, at the time fixed for the beginning of the term of 

the President, the President elect shall have died, the Vice 

President elect shall become President. If a President shall not 

have been chosen before the time fixed for the beginning of his 

term, or if the President elect shall have failed to qualify, then 

the Vice President elect shall act as President until a President 

shall have qualified; and the Congress may by law provide for 

the case wherein neither a President elect nor a Vice President 

elect shall have qualified, declaring who shall then act as 

President, or the manner in which one who is to act shall be 

selected, and such person shall act accordingly until a 

President or Vice President shall have qualified.

SECTION 4. The Congress may by law provide for the case of 

the death of any of the persons from whom the House of 

representatives may choose a President whenever the right of 

choice shall have devolved upon them, and for the case of the 

death of any of the persons from whom the Senate may choose 

a Vice President whenever the right of choice shall have 

devolved upon them.

SECTION 5. Sections 1 and 2 shall take effect on the 15th day 

of October following the ratification of this article.

SECTION 6. This article shall be inoperative unless it shall 

have been ratified as an amendment to the Constitution by the

legislatures of three-fourths of the several States within seven 

years from the date of its submission.

AMENDMENT XXI.

SECTION 1. The eighteenth article of amendment to the 

Constitution of the United States is hereby repealed.

SECTION 2. The transportation or importation into any State, 

Territory, or possession of the United States for delivery or use 

therein of intoxicating liquors, in violation of the laws thereof, is 

hereby prohibited.

SECTION 3. This article shall be inoperative unless it shall 

have been ratified as an amendment to the Constitution by 

conventions in the several States, as provided in the 

Constitution, within seven years from the date of the 

submission hereof to the States by the Congress.

U.S. Constitution 445
AMENDMENT XXII.

SECTION 1. No person shall be elected to the office of the 

President more than twice, and no person who has held the 

office of President, or acted as President, for more than two 

years of a term to which some other person was elected 

President shall be elected to the office of President more that 

once. But this Article shall not apply to any person holding the 

office of President when this Article was proposed by Congress, 

and shall not prevent any person who may be holding the office 

of President, or acting as President, during the term the term 

within which this Article becomes operative from holding the 

office of President or acting as President during the remainder 

of such term. 

SECTION 2. This article shall be inoperative unless it shall 

have been ratified as an amendment to the Constitution by the 

legislatures of three-fourths of the several States within seven 

years from the date of its submission to the States by the 

Congress.

AMENDMENT XXIII.

SECTION 1. The District constituting the seat of Government 

of the United States shall appoint in such manner as Congress 

may direct: 

A number of electors of President and Vice President equal to 

the whole number of Senators and Representatives in Congress 

to which the District would be entitled if it were a State, but in 

no event more than the least populous State; they shall be in 

addition to those appointed by the States, but they shall be 

considered, for the purposes of the election of President and 

Vice President, to be electors appointed by a State; and they 

shall meet in the District and perform such duties as provided 

by the twelfth article of amendment.

SECTION 2. The Congress shall have power to enforce this 

article by appropriate legislation.

AMENDMENT XXIV.

SECTION 1. The right of citizens of the United States to vote in 

any primary or other election for President or Vice President, for 

electors for President or Vice President, or for Senator or 

Representative in Congress, shall not be denied or abridged by 

446 U.S. Constitution
the United States or any State by reason of failure to pay poll 

tax or any other tax.

SECTION 2. Congress shall have power to enforce this article 

by appropriate legislation.

AMENDMENT XXV.

SECTION 1. In case of the removal of the President from office 

or of his death or resignation, the Vice President shall become 

President.

SECTION 2. Whenever there is a vacancy in the office of the 

Vice President, the President shall nominate a Vice President

who shall take the office upon confirmation by a majority vote of 

both houses of Congress. 

SECTION 3. Whenever the President transmits to the President 

Pro tempore of the Senate and the Speaker of the House of 

Representatives his written declaration that he is unable to 

discharge the powers and duties of his office, and until he 

transmits to them a written declaration to the contrary, such 

powers and duties shall be discharged by the Vice President as 

Acting President.

SECTION 4. Whenever the Vice President and a majority of 

either the principal officers of the executive departments or of 

such other body as Congress may by law provide, transmits to 

the President Pro tempore of the Senate and the Speaker of the 

House of Representatives their written declaration that the 

President is unable to discharge the powers and duties of his 

office, the Vice President shall immediately assume the powers 

and duties of the office as Acting President. 

Thereafter, when the President transmits to the President Pro 

tempore of the Senate and the Speaker of the House of 

Representatives his written declaration that no inability exists, 

he shall resume the powers and duties of his office unless the 

Vice President and a majority of either the principal officers of 

the executive departments or of such other body as Congress 

may by law provide, transmits within four days to the President 

Pro tempore of the Senate and the Speaker of the House of 

Representatives their written declaration that the President is 

unable to discharge the powers and duties of his office. 

Thereupon Congress shall decide the issue, assembling within 

forty-eight hours for that purpose if not in session. If the 

U.S. Constitution 447
Congress, within twenty-one days after receipt of the latter 

written declaration, or, if Congress is not in session within 

twenty-one days after Congress is required to assemble, 

determines by two-thirds vote of both houses that the President 

is unable to discharge the powers and duties of his office, the 

Vice President shall continue to discharge the same as Acting 

President; otherwise, the President shall resume the powers and 

duties of his office.

AMENDMENT XXVI.

SECTION 1. The right of citizens of the United States, who are 

eighteen years of age or older, to vote shall not be denied or 

abridged by the United States or by any State on account of 

age.

SECTION 2. The Congress shall have power to enforce this 

article by appropriate legislation.

AMENDMENT XXVII.

No law, varying the compensation for the services of the 

Senators and Representatives, shall take effect, until an election 

of Representatives shall have intervened.

448 U.S. Constitution
B. Use of Race and other Factors by Federal Law 

Enforcement Agencies

U.S. Department of Justice

GUIDANCE FOR FEDERAL LAW 

ENFORCEMENT AGENCIES REGARDING 

THE USE OF RACE, ETHNICITY, GENDER, 

NATIONAL ORIGIN, RELIGION, SEXUAL 

ORIENTATION, OR GENDER IDENTITY

December 2014

DOJ – Guidance Regarding Use of Race and Other Factors 449
INTRODUCTION AND EXECUTIVE SUMMARY

This Guidance supersedes the Department of Justice’s 2003 Guidance 

Regarding the Use of Race by Federal Law Enforcement Agencies. It builds 

upon and expands the framework of the 2003 Guidance, and it reaffirms the 

Federal government’s deep commitment to ensuring that its law enforcement 

agencies conduct their activities in an unbiased manner. Biased practices, as 

the Federal government has long recognized, are unfair, promote mistrust of 

law enforcement, and perpetuate negative and harmful stereotypes. 

Moreover—and vitally important—biased practices are ineffective. As 

Attorney General Eric Holder has stated, such practices are “simply not good 

law enforcement.”

Law enforcement practices free from inappropriate considerations, by 

contrast, strengthen trust in law enforcement agencies and foster collaborative 

efforts between law enforcement and communities to fight crime and keep the 

Nation safe. In other words, fair law enforcement practices are smart and 

effective law enforcement practices.

Even-handed law enforcement is therefore central to the integrity, 

legitimacy, and efficacy of all Federal law enforcement activities. The highest 

standards can—and should—be met across all such activities. Doing so will 

not hinder—and, indeed, will bolster—the performance of Federal law 

enforcement agencies’ core responsibilities.

This new Guidance applies to Federal law enforcement officers 

performing Federal law enforcement activities, including those related to 

national security and intelligence, and defines not only the circumstances in 

which Federal law enforcement officers may take into account a person’s race 

and ethnicity—as the 2003 Guidance did—but also when gender, national 

origin, religion, sexual orientation, or gender identity may be taken into 

account. This new Guidance also applies to state and local law enforcement 

officers while participating in Federal law enforcement task forces. Finally, 

this Guidance promotes training and accountability, to ensure that its contents 

are understood and implemented appropriately.

Biased law enforcement practices, as the 2003 Guidance recognized 

with regard to racial profiling, have a terrible cost, not only for individuals but 

also for the Nation as a whole. This new Guidance reflects the Federal 

government’s ongoing commitment to keeping the Nation safe while 

450 DOJ – Guidance Regarding Use of Race and Other Factors
upholding our dedication to the ideal of equal justice under the law.

Two standards in combination should guide use by Federal law 

enforcement officers of race, ethnicity, gender, national origin, religion, 

sexual orientation, or gender identity in law enforcement or intelligence 

activities:

• In making routine or spontaneous law enforcement decisions, such as 

ordinary traffic stops, Federal law enforcement officers may not use 

race, ethnicity, gender, national origin, religion, sexual orientation, or 

gender identity to any degree, except that officers may rely on the 

listed characteristics in a specific suspect description. This prohibition 

applies even where the use of a listed characteristic might otherwise be 

lawful.

• In conducting all activities other than routine or spontaneous law 

enforcement activities, Federal law enforcement officers may consider 

race, ethnicity, gender, national origin, religion, sexual orientation, or 

gender identity only to the extent that there is trustworthy information, 

relevant to the locality or time frame, that links persons possessing a 

particular listed characteristic to an identified criminal incident, 

scheme, or organization, a threat to national or homeland security, a 

violation of Federal immigration law, or an authorized intelligence 

activity. In order to rely on a listed characteristic, law enforcement 

officers must also reasonably believe that the law enforcement, 

security, or intelligence activity to be undertaken is merited under the

totality of the circumstances, such as any temporal exigency and the 

nature of any potential harm to be averted. This standard applies even 

where the use of a listed characteristic might otherwise be lawful.

DISCUSSION

The Constitution protects individuals against the invidious use of irrelevant 

individual characteristics. See Whren v. United States, 517 U.S. 806, 813 

(1996). Such characteristics should never be the sole basis for a law 

enforcement action. This Guidance sets out requirements beyond the

Constitutional minimum that shall apply to the use of race, ethnicity, gender, 

national origin,1 religion, sexual orientation, and gender identity by Federal 

1 As used in this Guidance, “national origin” refers to an individual’s, or his or her ancestor’s, 

country of birth or origin, or an individual’s possession of the physical, cultural or linguistic 

characteristics commonly associated with a particular country. It does not refer to an 

DOJ – Guidance Regarding Use of Race and Other Factors 451

 
law enforcement officers.2 This Guidance applies to such officers at all times, 

including when they are operating in partnership with non-Federal law 

enforcement agencies.

I. GUIDANCE FOR FEDERAL LAW ENFORCEMENT 

OFFICERS

A. Routine or Spontaneous Activities in Domestic Law Enforcement

In making routine or spontaneous law enforcement 

decisions, such as ordinary traffic stops, Federal law 

enforcement officers may not use race, ethnicity, gender, 

national origin, religion, sexual orientation, or gender 

identity to any degree, except that officers may rely on the 

listed characteristics in a specific suspect description. This 

prohibition applies even where the use of a listed 

characteristic might otherwise be lawful.

Law enforcement agencies and officers sometimes engage in law 

enforcement activities, such as traffic and foot patrols, that generally do not 

involve either the ongoing investigation of specific criminal activities or the 

prevention of catastrophic events or harm to national or homeland security. 

Rather, their activities are typified by spontaneous action in response to the 

activities of individuals whom they happen to encounter in the course of their 

patrols and about whom they have no information other than their 

observations. These general enforcement responsibilities should be carried out 

without any consideration of race, ethnicity, gender, national origin, religion, 

sexual orientation, or gender identity.

individual’s “nationality” (i.e., country of citizenship or country of which the person is 

deemed a national), which may be relevant to the administration and enforcement of certain 

statutes, regulations, and executive orders.

2 This Guidance is intended only to improve the internal management of the executive branch. 

It is not intended to, and does not, create any right, benefit, trust, or responsibility, whether 

substantive or procedural, enforceable at law or equity by a party against the United States, its 

departments, agencies, instrumentalities, entities, officers, employees, or agents, or any 

person, nor does it create any right of review in an administrative, judicial, or any other 

proceeding. This Guidance does not apply to Federal non-law enforcement personnel, 

including U.S. military, intelligence, or diplomatic personnel, and their activities. In addition, 

this Guidance does not apply to interdiction activities in the vicinity of the border, or to 

protective, inspection, or screening activities. All such activities must be conducted consistent 

with the Constitution and applicable Federal law and policy, in a manner that respects 

privacy, civil rights and civil liberties, and subject to appropriate oversight.

452 DOJ – Guidance Regarding Use of Race and Other Factors

 
• Example: While parked by the side of the George Washington 

Parkway, a Park Police Officer notices that nearly all vehicles on the 

road are exceeding the posted speed limit. Although each such vehicle 

is committing an infraction that would legally justify a stop, the officer 

may not use a listed characteristic as a factor in deciding which 

motorists to pull over. Likewise, the officer may not use a listed 

characteristic in deciding which detained motorists to ask to consent to 

a search of their vehicles.

Some have argued that overall discrepancies in certain crime rates 

among certain groups could justify using a listed characteristic as a factor in 

general traffic enforcement activities and would produce a greater number of 

arrests for non-traffic offenses (e.g., narcotics trafficking). We emphatically 

reject this view. Profiling by law enforcement based on a listed characteristic 

is morally wrong and inconsistent with our core values and principles of 

fairness and justice.

Even if there were overall statistical evidence of differential rates of 

commission of certain offenses among individuals possessing particular 

characteristics, the affirmative use of such generalized notions by law 

enforcement officers in routine, spontaneous law enforcement activities is 

tantamount to stereotyping. It casts a pall of suspicion over every member of 

certain groups without regard to the specific circumstances of a particular law 

enforcement activity, and it offends the dignity of the individual improperly 

targeted. Whatever the motivation, it is patently unacceptable and thus 

prohibited under this Guidance for law enforcement officers to act on the 

belief that possession of a listed characteristic signals a higher risk of 

criminality. This is the core of invidious profiling, and it must not occur.

The situation is different when an officer has specific information, 

based on trustworthy sources, to “be on the lookout” for specific individuals 

identified at least in part by a specific listed characteristic. In such 

circumstances, the officer is not acting based on a generalized assumption 

about individuals possessing certain characteristics; rather, the officer is 

helping locate specific individuals previously identified as involved in crime.

• Example: While parked by the side of the George Washington 

Parkway, a Park Police Officer receives an “All Points Bulletin” to be 

on the lookout for a fleeing bank robbery suspect, a man of a particular 

race and particular hair color in his 30s driving a blue automobile. The 

DOJ – Guidance Regarding Use of Race and Other Factors 453
officer may use this description, including the race and gender of the 

particular suspect, in deciding which speeding motorists to pull over.

B. All Activities Other Than Routine or Spontaneous Law 

Enforcement Activities

In conducting all activities other than routine or 

spontaneous law enforcement activities, Federal law 

enforcement officers may consider race, ethnicity, gender, 

national origin, religion, sexual orientation, or gender 

identity only to the extent that there is trustworthy 

information, relevant to the locality or time frame, that 

links persons possessing a particular listed characteristic to 

an identified criminal incident, scheme, or organization, a 

threat to national or homeland security, a violation of 

Federal immigration law, or an authorized intelligence 

activity. In order to rely on a listed characteristic, law 

enforcement officers must also reasonably believe that the 

law enforcement, security, or intelligence activity to be

undertaken is merited under the totality of the 

circumstances, such as any temporal exigency and the 

nature of any potential harm to be averted. This standard 

applies even where the use of a listed characteristic might 

otherwise be lawful.3

As noted above, there are circumstances in which law enforcement 

officers engaged in activities relating to particular identified criminal 

incidents, schemes, organizations, threats to national or homeland security, 

violations of Federal immigration law, or authorized intelligence activities 

may consider personal identifying characteristics of potential suspects, 

including race, ethnicity, gender, national origin, religion, sexual orientation, 

or gender identity. Common sense dictates that when a victim describes the 

assailant as possessing a certain characteristic, law enforcement officers may 

properly limit their search for suspects to persons possessing that 

3 This Guidance does not prohibit the accommodation of religious beliefs and practices 

consistent with the U.S. Constitution and federal law. The Guidance also does not prohibit 

officials from considering gender when “the gender classification is not invidious, but rather 

realistically reflects the fact that the sexes are not similarly situated.” Rostker v. Goldberg, 

453 U.S. 57, 79 (1981).

454 DOJ – Guidance Regarding Use of Race and Other Factors

 
characteristic. Similarly, in conducting activities directed at a specific 

criminal organization or terrorist group whose membership has been identified 

as overwhelmingly possessing a listed characteristic, law enforcement should 

not be expected to disregard such facts in taking investigative or preventive 

steps aimed at the organization’s activities.

Reliance upon generalized stereotypes involving the listed characteristics is 

absolutely forbidden. In order for law enforcement officers to rely on 

information about a listed characteristic, the following must be true:

• The information must be relevant to the locality or time frame of the 

criminal activity, threat to national or homeland security, violation of 

Federal immigration law, or authorized intelligence activity;

• The information must be trustworthy; and

• The information concerning identifying listed characteristics must be 

tied to a particular criminal incident, a particular criminal scheme, a 

particular criminal organization, a threat to national or homeland 

security, a violation of Federal immigration law, or an authorized 

intelligence activity.

Because law enforcement and intelligence actions are necessarily 

context-specific, in applying each of these factors, law enforcement officers 

may properly account for relevant facts and circumstances, such as any 

temporal exigency and the nature of any potential harm to be averted. 

However, in all cases, law enforcement officers must reasonably believe that 

the law enforcement or intelligence activity to be undertaken is merited under 

the totality of the circumstances.

The following policy statements more fully explain these principles.

1. Law Enforcement Officers May Never Rely on Generalized 

Stereotypes, But May Rely Only on Specific Characteristic-Based 

Information

This standard categorically bars the use of generalized assumptions 

based on listed characteristics.

• Example: In the course of investigating an auto theft ring in a Federal 

park, law enforcement officers could not properly choose to target 

DOJ – Guidance Regarding Use of Race and Other Factors 455 

 
individuals of a particular national origin as suspects, based on a 

generalized assumption that those individuals are more likely to 

commit crimes.

This bar extends to the use of pretexts as an excuse to target 

minorities. Officers may not use such pretexts. This prohibition extends to the 

use of other, facially neutral factors as a proxy for overtly targeting persons 

because of a listed characteristic. This concern arises most frequently when 

aggressive law enforcement efforts are focused on “high crime areas.” The 

issue is ultimately one of motivation and evidence; certain seemingly 

characteristic-based efforts, if properly supported by reliable, empirical data, 

are in fact neutral.

• Example: In connection with a new initiative to increase drug arrests, 

law enforcement officers begin aggressively enforcing speeding, 

traffic, and other public area laws in a neighborhood predominantly 

occupied by people of a single race. The choice of neighborhood was 

not based on the number of 911 calls, number of arrests, or other 

pertinent reporting data specific to that area, but only on the general 

assumption that more drug-related crime occurs in that neighborhood 

because of its racial composition. This effort would be improper 

because it is based on generalized stereotypes.

• Example: Law enforcement officers seeking to increase drug arrests 

use tracking software to plot out where, if anywhere, drug arrests are 

concentrated in a particular city, and discover that the clear majority of 

drug arrests occur in particular precincts that happen to be 

neighborhoods predominantly occupied by people of a single race. So 

long as they are not motivated by racial animus, officers can properly 

decide to enforce all laws aggressively in that area, including less 

serious quality of life ordinances, as a means of increasing drugrelated arrests. See, e.g., United States v Montero-Camargo, 208 F.3d 

1122, 1138 (9th Cir. 2000) (“We must be particularly careful to ensure 

that a ‘high crime’ area factor is not used with respect to entire 

neighborhoods or communities in which members of minority groups 

regularly go about their daily business, but is limited to specific, 

circumscribed locations where particular crimes occur with unusual 

regularity.”).

By contrast, where law enforcement officers are investigating a crime 

and have received specific information that the suspect possesses a certain 

456 DOJ – Guidance Regarding Use of Race and Other Factors 
listed characteristic (e.g., direct observations by the victim or other witnesses), 

the officers may reasonably use that information, even if it is the only 

descriptive information available. In such an instance, it is the victim or other 

witness making the classification, and officers may use reliable incidentspecific identifying information to apprehend criminal suspects. Officers, 

however, must use caution in the rare instance in which a suspect’s possession 

of a listed characteristic is the only available information. Although the use of 

that information may not be unconstitutional, broad targeting of discrete 

groups always raises serious fairness concerns.

• Example: The victim of an assault describes her assailant as an older 

male of a particular race with a birthmark on his face. The 

investigation focuses on whether any men in the surrounding area fit 

the victim’s description. Here investigators are properly relying on a 

description given by the victim, which included the assailant’s race 

and gender, along with his age and identifying personal characteristic. 

Although the ensuing investigation affects individuals of a particular 

race and gender, that investigation is not undertaken with a 

discriminatory purpose. Thus use of race and gender as factors in the 

investigation, in this instance, is permissible.

2. The Information Must be Relevant to the Locality or Time Frame

Any information that law enforcement officers rely upon concerning a listed 

characteristic possessed by persons who may be linked to specific criminal 

activities, a threat to national or homeland security, a violation of Federal 

immigration law, or an authorized intelligence activity must be locally or 

temporally relevant.

• Example: Five years ago, DEA issued an intelligence report that

indicated that a drug ring whose members are known to be 

predominantly of a particular ethnicity is trafficking drugs in 

Charleston, SC. An agent operating in Los Angeles reads this 

intelligence report. In the absence of information establishing that this

intelligence is also applicable in Southern California or at the present 

time, the agent may not use ethnicity as a factor in making local law 

enforcement decisions about individuals who are of the particular 

ethnicity that was predominant in the Charleston drug ring.

DOJ – Guidance Regarding Use of Race and Other Factors 457 

 
3. The Information Must be Trustworthy

Where the information relied upon by law enforcement officers linking 

a person possessing a listed characteristic to potential criminal activity, a 

threat to national or homeland security, a violation of Federal immigration 

law, or an authorized intelligence activity is unreliable or is too generalized 

and unspecific, reliance on that characteristic is prohibited.

• Example: ATF special agents receive an uncorroborated anonymous 

tip that a male of a particular ethnicity will purchase an illegal firearm 

at a Greyhound bus terminal in an ethnically diverse North 

Philadelphia neighborhood. Although agents surveilling the location 

are free to monitor the movements of whomever they choose, the 

agents are prohibited from using the tip information, without more, to 

target any males of that ethnicity in the bus terminal. Cf. Morgan v. 

Woessner, 997 F.2d 1244, 1254 (9th Cir. 1993) (finding no reasonable 

basis for suspicion where tip “made all black men suspect”). The 

information is neither sufficiently reliable nor sufficiently specific.

In determining whether information is trustworthy, an officer should 

consider the totality of the circumstances, such as the reliability of the source, 

the specificity of the information, and the context in which it is being used.

• Example: ICE receives an uncorroborated anonymous tip indicating 

that females from a specific Eastern European country have been 

smuggled into Colorado and are working at bars in a certain town. 

Agents identify a group of women wearing t-shirts with the logo of a 

local bar who seem to be speaking an Eastern European language. The 

agents approach the group to ask them questions about their 

immigration status. Because the women match the specific information 

provided by the tipster, the information is sufficient under the 

circumstances to justify the agents’ actions.

4. Characteristic-Based Information Must Always be Specific to 

Particular Suspects or Incidents; Ongoing Criminal Activities, 

Schemes, or Enterprises; a Threat to National or Homeland 

Security; a Violation of Federal Immigration Law, or an 

Authorized Intelligence Activity

These standards contemplate the appropriate use of both “suspectspecific” and “incident- specific” information. As noted above, where a crime 

458 DOJ – Guidance Regarding Use of Race and Other Factors 
has occurred and law enforcement officers have eyewitness accounts 

including the race, ethnicity, gender, national origin, religion, sexual 

orientation, or gender identity of the perpetrator, that information may be 

used. Law enforcement officers may also use reliable, locally or temporally 

relevant information linking persons possessing a listed characteristic to a 

particular incident, unlawful scheme, or ongoing criminal enterprise, a threat 

to national or homeland security, a violation of Federal immigration law, or an 

authorized intelligence activity—even absent a description of any particular 

individual suspect. In certain cases, the circumstances surrounding an 

incident, ongoing criminal activity, threat to national or homeland security, or 

violation of Federal immigration law will point strongly to a perpetrator 

possessing a specific listed characteristic, even though law enforcement 

officers lack an eyewitness account.

• Example: The FBI is investigating the murder of a known gang 

member and has information that the shooter is a member of a rival 

gang. The FBI knows that the members of the rival gang are 

exclusively members of a certain ethnicity. This information, however, 

is not suspect-specific because there is no description of the particular 

assailant. But because law enforcement officers have reliable, locally 

or temporally relevant information linking a rival group with a 

distinctive ethnic character to the murder, the FBI could properly 

consider ethnicity in conjunction with other appropriate factors in the 

course of conducting their investigation. Agents could properly decide 

to focus on persons dressed in a manner consistent with gang activity, 

but ignore persons dressed in that manner who do not appear to be 

members of that particular ethnicity.

• Example: Local law enforcement arrests an individual, and in the 

course of custodial interrogation the individual states that he was born 

in a foreign country and provides other information that reasonably 

leads local law enforcement to question his immigration status. 

Criminal background checks performed by the local law enforcement 

agency reveal that the individual was recently released from state 

prison after completing a lengthy sentence for aggravated sexual 

assault. Local law enforcement contacts ICE to inquire as to the 

individual’s immigration status. When ICE’s database check on the 

immigration status of the arrestee does not locate a record of the 

individual’s lawful immigration status, ICE sends an officer to the jail 

to question the individual about his immigration status, whereupon the 

individual states that he entered the United States without 

DOJ – Guidance Regarding Use of Race and Other Factors 459 

 
authorization and has never regularized his status. ICE assumes 

custody of the individual and processes him for removal from the 

United States. ICE properly relied on the facts presented to it, 

including that the arrestee was born in a foreign country, in searching 

its immigration database and conducting its subsequent investigation.

In addition, law enforcement officers may use a listed characteristic in 

connection with source recruitment, where such characteristic bears on the 

potential source’s placement and access to information relevant to an 

identified criminal incident, scheme, or organization, a threat to national or 

homeland security, a violation of Federal immigration law, or an authorized 

intelligence activity.

• Example: A terrorist organization that is made up of members of a 

particular ethnicity sets off a bomb in a foreign country. There is no 

specific information that the organization is currently a threat to the 

United States. To gain intelligence on the evolving threat posed by the 

organization, and to gain insight into its intentions regarding the U.S. 

homeland and U.S. interests, the FBI may properly consider ethnicity 

when developing sources with information that could assist the FBI in 

mitigating any potential threat from the organization.

5. Reasonably Merited Under the Totality of the Circumstances

Finally, when a law enforcement officer relies on a listed characteristic 

in undertaking an action, that officer must have a reasonable belief that the 

action is merited under the totality of the circumstances. This standard ensures 

that, under the circumstances, the officer is acting in good faith when he or 

she relies in part on a listed characteristic to take action.

• Example: A law enforcement officer who is working as part of a 

federal task force has received a reliable tip that an individual intends 

to detonate a homemade bomb in a train station during rush hour, but 

the tip does not provide any more information. The officer harbors 

stereotypical views about religion and therefore decides that 

investigators should focus on individuals of a particular faith. Doing so 

would be impermissible because a law enforcement officer’s 

stereotypical beliefs never provide a reasonable basis to undertake a 

law enforcement or intelligence action.

Note that these standards allow the use of reliable identifying 

460 DOJ – Guidance Regarding Use of Race and Other Factors 
information about planned future crimes, attacks, or other violations of 

Federal law. Where officers receive a credible tip from a reliable informant 

regarding a planned crime or attack that has not yet occurred, the officers may 

use this information under the same restrictions applying to information 

obtained regarding a past incident. A prohibition on the use of reliable 

prospective information would severely hamper law enforcement efforts by 

essentially compelling law enforcement officers to wait for incidents to occur, 

instead of taking pro-active measures to prevent them from happening.

• Example: While investigating a specific drug trafficking operation, 

DEA special agents learn that a particular methamphetamine 

distribution ring is manufacturing the drug in California, and plans to 

have couriers pick up shipments at the Sacramento, California, airport 

and drive the drugs back to Oklahoma for distribution. The agents also 

receive trustworthy information that the distribution ring has 

specifically chosen to hire older women of a particular race to act as 

the couriers. DEA agents may properly target older women of that 

particular race driving vehicles with indicia such as Oklahoma plates 

near the Sacramento airport.

6. National and Homeland Security and Intelligence Activities

Since the terrorist attacks on September 11, 2001, Federal law 

enforcement agencies have used every legitimate tool to prevent future attacks 

and deter those who would cause devastating harm to our Nation and its 

people through the use of biological or chemical weapons, other weapons of 

mass destruction, suicide hijackings, or any other means. “It is ‘obvious and 

unarguable’ that no governmental interest is more compelling than the 

security of the Nation.” Haig v. Agee, 453 U.S. 280, 307 (1981) (quoting 

Aptheker v. Secretary of State, 378 U.S. 500,

509 (1964)).

The years since September 11 have also demonstrated that Federal law 

enforcement officers can achieve this critical goal without compromising our 

cherished value of equal justice under the law. Every day, Federal law 

enforcement officers work to keep our Nation safe, and they do so without 

invidious profiling. The standard embodied in this Guidance thus applies to 

Federal law enforcement agencies’ national and homeland security operations, 

which will continue to focus on protecting the public while upholding our 

values.

DOJ – Guidance Regarding Use of Race and Other Factors 461 

 
National security, homeland security, and intelligence activities often 

are national in scope and focused on prevention of attacks by both known and 

unknown actors, not just prosecution. For example, terrorist organizations

might aim to engage in acts of catastrophic violence in any part of the country 

(indeed, in multiple places simultaneously, if possible). These facts do not 

change the applicability of the Guidance, however. In order to undertake an 

action based on a listed characteristic, a law enforcement officer must have 

trustworthy information, relevant to the locality or time frame, linking persons 

possessing that characteristic to a threat to national security, homeland 

security, or intelligence activity, and the actions to be taken must be 

reasonable under the totality of the circumstances.

• Example: The FBI receives reliable information that persons affiliated 

with a foreign ethnic insurgent group intend to use suicide bombers to 

assassinate that country’s president and his entire entourage during an 

official visit to the United States. Agents may appropriately focus 

investigative attention on identifying members of that ethnic insurgent 

group who may be present and active in the United States and who, 

based on other available information, might be involved in planning 

some such attack during the state visit.

• Example: A citizen of Country A, who was born in Country B, 

lawfully entered the United States on an F-1 student visa. The school 

that the individual was supposed to attend notifies ICE that he failed to 

register or attend the school once in the United States, in violation of 

the terms of his visa. ICE has intelligence that links individuals with 

ties to Country B who have registered at that school to a designated 

terrorist organization that has made statements about launching an 

attack against the United States. ICE selects the individual for 

investigation, identification, location, and arrest. Once taken into 

custody, the individual is questioned and a decision is made to place 

him in removal proceedings and to detain him during those 

proceedings. ICE’s decision to prioritize this immigration status 

violator for investigation and arrest was proper because it was based 

upon a combination of the factors known about the individual, 

including his national origin, school affiliation, and behavior upon 

arrival in the United States.

Good law enforcement work also requires that officers take steps to 

know their surroundings even before there is a specific threat to national 

security. Getting to know a community and its features can be critical to 

462 DOJ – Guidance Regarding Use of Race and Other Factors 
building partnerships and facilitating dialogues, which can be good for 

communities and law enforcement alike. Law enforcement officers may not, 

however, target only those persons or communities possessing a specific listed 

characteristic without satisfying the requirements of this Guidance.

• Example: An FBI field office attempts to map out the features of the 

city within its area of responsibility in order to gain a better 

understanding of potential liaison contacts and outreach opportunities. 

In doing so, the office acquires information from public sources 

regarding population demographics, including concentrations of ethnic 

groups. This activity is permissible if it is undertaken pursuant to an 

authorized intelligence or investigative purpose. The activity would 

not be permitted without such an authorized purpose or in 

circumstances that do not otherwise meet the requirements of this 

Guidance.

ADDITIONAL REQUIREMENTS

In order to ensure its implementation, this Guidance finally requires that 

Federal law enforcement agencies take the following steps on training, data 

collection, and accountability.

Training

Training provides agents and officers with an opportunity to dedicate 

their attention to a task, to learn about the factual application of theoretical 

concepts, and to learn from their colleagues. Training also provides an 

opportunity to ensure that consistent practices are applied across the agency.

Law enforcement agencies therefore must administer training on this 

Guidance to all agents on a regular basis, including at the beginning of each 

agent’s tenure. Training should address both the legal authorities that govern 

this area and the application of this Guidance. Training will be reviewed and 

cleared by agency leadership to ensure consistency through the agency.

Data Collection

Data collection can be a tremendously powerful tool to help managers 

assess the relative success or failure of policies and practices. At the same 

time, data collection is only useful to the extent that the collected data can be 

analyzed effectively and that conclusions can be drawn with confidence.

DOJ – Guidance Regarding Use of Race and Other Factors 463 

 
Each law enforcement agency therefore (i) will begin tracking 

complaints made based on the Guidance, and (ii) will study the 

implementation of this Guidance through targeted, data- driven research 

projects.

Accountability

Accountability is essential to the integrity of Federal law enforcement 

agencies and their relationship with the citizens and communities they are 

sworn to protect. Therefore, all allegations of violations of this Guidance will 

be treated just like other allegations of misconduct and referred to the 

appropriate Department office that handles such allegations. Moreover, all

violations will be brought to the attention of the head of the Department of 

which the law enforcement agency is a component.

464 DOJ – Guidance Regarding Use of Race and Other Factors 
C. Legal Ethics for Investigative Agents1

There are many circumstances in which attorney conduct rules 

will or may have implications for investigative agents. The rules 

themselves are written by and for lawyers and are used to 

regulate the practice of law, although they require that lawyers 

take steps to ensure that agents and other non-lawyers with 

whom they are working also abide by the rules. Therefore, 

investigators should familiarize themselves with the 

requirements of these rules for two good reasons: 1) to make 

sure evidence is not excluded; and 2) to protect the reputations 

of your agencies. This memorandum is intended to give you 

some familiarity with those rules of professional conduct that 

most often come into play during investigations and to aid you 

in avoiding pitfalls in your investigative work.

I. What Are the Rules of Professional Conduct Anyway?

In order to practice law, a lawyer must be a member of a state 

bar. Each bar has adopted a set of rules that lawyers must 

follow. The American Bar Association is a voluntary 

organization of lawyers that drafts model rules, which the 

various state bar organizations often adopt, in whole or in part. 

The rules in each jurisdiction are therefore unique, although 

there are general principles that apply in every jurisdiction. 

Failure to follow those rules can result in sanctions to the 

lawyer, including revocation of the lawyer’s license to practice 

law.

II. How Is It That Lawyer’s Rules Apply to Investigative 

Agents?

There are two general rules of professional conduct that can 

make a lawyer responsible for the conduct of an investigative 

agent with whom the lawyer is working. One rule (Rule 8.4(a)) 

states that it is professional misconduct for a lawyer to violate 

the rules of professional conduct through the acts of another. 

The second rule (Rule 5.3(c)) states that a lawyer is responsible 

1 This memorandum was prepared by the Professional Responsibility 

Advisory Office, United States Department of Justice, Washington, D.C.

Legal Ethics for Investigative Agents 465

 
for the conduct of a non-lawyer, if the lawyer supervised or 

ordered the conduct or “ratifies” the conduct or could have 

prevented or mitigated the effects of the conduct. While the 

government lawyers with whom you work do not directly 

supervise you, some judges may still hold them accountable for 

your conduct on account of the rules.2 Oftentimes, the 

government lawyer will urge that, if a court finds a rule 

violation, any sanction be against the lawyer, not the case; but 

the court has discretion and sometimes does prohibit the lawyer 

from using evidence obtained by an agent in violation of the 

rules. In addition, the cases differ about when a lawyer 

“ratifies” the conduct of an agent or other non-lawyer. This 

issue comes up at trial when a defendant moves to have 

evidence excluded on the ground that the use of the evidence 

obtained by an agent in violation of a rule constitutes a 

ratification. The courts and legal authorities disagree on the 

answer to the question, but it is important for you to recognize 

it as an issue.

There is also a more specific rule that requires that prosecutors 

take special precautions to make sure that investigative agents 

do not make pre-trial, out-of-court statements that would have 

a substantial likelihood of materially prejudicing a proceeding 

or that would have a substantial likelihood of heightening 

public condemnation of the accused (Rule 3.8(f)).

When investigative agents learn about all the different 

requirements of the attorney conduct rules, they sometimes 

argue that investigators should conduct their investigations 

totally independently of the lawyer and in this way avoid the 

constraints of the attorney conduct rules. As a practical 

matter, given the necessary involvement of attorneys in issuing 

grand jury subpoenas, seeking wiretap orders, and in other 

techniques used in investigating complex federal crimes, it may 

be impossible for an attorney not to be involved at the 

2 Rule 5.3(b) states that a lawyer having direct supervisory 

power over a nonlawyer has to make reasonable efforts to 

ensure that the nonlawyer’s conduct is compatible with the 

professional obligations of the lawyer. 

466 Legal Ethics for Investigative Agents

 
investigative stage. Moreover, you should be aware that, no 

matter how independently the agents may try to operate, courts 

may still apply the attorney conduct rules, either when a lawyer 

is consulted on a legal issue, such as constitutional questions 

implicated in interviewing a suspect, or not, as when the lawyer 

simply tries to use the evidence.

III. What Exactly Do The Most Important and Relevant 

Rules Provide?

For each of the following issues, you first should determine 

which rules of professional conduct apply and then examine the 

particular rule in question. You can do this by consulting an 

attorney in the governmental office who will handle the case.

A. Contacts with Represented Persons.

Every jurisdiction has a provision providing generally that a 

lawyer may not communicate with a person the lawyer knows to 

be represented about the subject matter of the representation 

(ABA Model Rule is 4.2). There are exceptions to this rule. The 

rule in every jurisdiction permits such a communication with 

the consent of the person’s lawyer. The rule in every 

jurisdiction but two (Florida and Puerto Rico) contains language 

creating an exception for communications “authorized by law.” 

The rule on its own, or read in conjunction with other rules 

(such as Rule 8.4(a) and 5.3(c) discussed earlier), would 

prohibit an agent working on a case with a lawyer from 

engaging in a communication when the lawyer could not.

This rule raises many questions, and there are numerous cases 

deciding issues relating to it. The answers to the questions 

differ, depending on the applicable rule and the case law in the 

relevant jurisdiction.

* How are you supposed to know when an individual is 

represented by a lawyer?

You have to pay attention to what the individual says on this 

issue. Also, where the individual has a lawyer on one case, for 

Legal Ethics for Investigative Agents 467
example, a state investigation of health care fraud, you probably 

should “know” that the individual is represented in your federal 

investigation of the same matter, unless there are good reasons 

not to think so, e.g., when a lawyer tells you he does not 

represent the individual in your investigation.

* What if the individual has been represented in the 

past by a lawyer?

This fact alone would not be enough to know that the individual 

is or is not represented. However, if the lawyer continues to 

work for the individual, then that is a fact to be considered.

* If the “individual” is a corporation that employs a 

general counsel, does the general counsel necessarily 

represent that corporation on the matter you are 

investigating?

Generally speaking, the fact that a corporation has a general 

counsel does not mean that the corporation is represented with 

respect to your investigation of a particular incident or practice.

* Which persons in the corporation does the 

corporation’s attorney represent?

The answer to this question is going to depend on where the 

case is or will be tried, or where the lawyers are members of the 

bar. The states vary, and in some jurisdictions, such as D.C., 

only employees who have the power to bind the corporation with 

respect to the representation itself are covered by the rule’s 

prohibition. In other states, however, even some low-level 

employees are considered to be represented by the corporation’s 

attorney.

* Is a former employee considered to be represented by 

corporation’s attorney?

In many jurisdictions, but not all, a former employee is not

considered to be represented by the corporation’s attorney. 

That means that you are free to communicate with former 

468 Legal Ethics for Investigative Agents
employees about most things but not about “privileged 

matters.”

* Is it necessary to ask every individual if he or she is 

represented?

It usually is not necessary to ask every individual; that answer 

would change if you have reason to believe that someone is 

represented. In that case, you should inquire.

* If a corporate employee has his own counsel who 

would permit you to communicate with the 

individual, do you also have to get the consent of the 

corporation’s attorney?

In many jurisdictions, but not all, if a corporate employee has 

separate counsel, then you may properly communicate with the 

individual if you have the consent of that person’s separate 

counsel.

* Can the individual consent to the communication or 

does the lawyer have to consent?

No. Only the lawyer can consent.

* Since the rule only prohibits communications about 

the subject matter of the representation, are you 

permitted to talk with the individual about a different 

but related subject? 

That depends on the relationship between the two.

* What is considered a “communication”? (Is a letter a 

communication? Can you just listen?)

Listening and writing or receiving a letter are communications.

* Does the rule even apply before an individual is 

charged with a crime or a law suit is filed?

The answer to this question varies, depending on which state’s 

rules apply and on the stage of the investigation.

Legal Ethics for Investigative Agents 469
* When are you “authorized by law” to communicate 

with a represented person?

This phrase has been interpreted to mean that you may 

communicate with a represented individual if a specific law, a 

court order, or a previous decision of the court in that 

jurisdiction would permit it.

* If the rule applies to post-indictment communications 

with represented persons, and the rules applies to 

agents who are working with lawyers, is it permissible 

for agents who arrest an indicted defendant to give 

Miranda warnings and get a statement from him?

This is a difficult question, not susceptible to a short answer 

and included here so that you think about it. A few states’ 

rules specifically permit post-arrest Mirandized 

communications with represented individuals; on the other 

hand, at least one federal case suggests that it is impermissible.

B. You Must Not Use a Method of Obtaining Evidence 

That Violates the Rights of Another Person.

Most jurisdictions have a rule or a number of rules that, read 

together, prohibit a lawyer and an agent working with a lawyer 

from obtaining evidence by violating the “legal rights” of another 

person (ABA Model Rule 4.4(a)). The “legal rights” of a third 

person include constitutional and statutory rights and rights 

recognized by case law, including privileges. For example, this 

rule has been used to prevent a lawyer from reviewing and 

copying psychiatric records of a litigant. It would prohibit you 

from asking questions if the answer would be privileged and the 

person you are asking does not have the power to waive the 

privilege. The most common way in which this rule would come 

into play is if, in the course of an investigation, you lawfully 

obtain information that is “privileged.” You may not always be 

able to determine in advance whether a document was intended 

to be privileged (and was inadvertently disclosed or was released 

by unauthorized persons), but there are some indicia that 

should put you on notice to ask some questions about the 

470 Legal Ethics for Investigative Agents
document. For example, if a document is on a lawyer’s 

stationery, is addressed to a client of the lawyer, and contains a 

notice such as “Confidential Attorney-Client Privileged 

Document” then you have some idea that there might be a 

claim that it is privileged. Before you read that document and 

before you integrate it into the file, it would be smart to find out 

how the document came into your possession. If the client 

waived the privilege (as, for example, a corporation may agree to 

do during an investigation), there is no reason not to read it. 

However, if the client did not waive the privilege, there are 

jurisdictions that would require you to return the document 

and also to refrain from using it. If you have not separated out 

such a document and it is later found to be privileged, you then 

would be hard pressed to establish that the information in it did 

not affect other parts of the investigation. Not every jurisdiction 

has such a rule, and so it is important to know what the 

applicable jurisdiction requires.

C. Trial Publicity Rules

Every jurisdiction has a rule (either a rule of professional 

conduct or a court rule) that provides that a lawyer should not 

make a statement that a reasonable person would expect to be 

disseminated by means of public communication if the lawyer 

knows or should know that the statement will have a 

substantial likelihood of prejudicing an adjudicative proceeding 

(ABA Model Rule 3.6). Here, again, the rule applies to agents 

working with lawyers. There is another rule applicable to 

prosecutors (ABA Model Rule 3.8) that specifically requires the 

prosecutor to make efforts to prevent investigators and other 

law enforcement personnel from making statements outside the 

courtroom that the lawyer could not make. This second rule 

explains that prosecutors and agents properly may make 

statements that inform the public about the investigation if 

those statements serve a legitimate law enforcement purpose 

but should refrain from making statements outside the 

courtroom that “have a substantial likelihood of heightening 

public condemnation of the accused.” You should be aware 

that, in some jurisdictions, the rules do not permit an attorney 

(or an agent working with the attorney) to identify or display the 

Legal Ethics for Investigative Agents 471
items seized at the time of arrest or in connection with a search 

warrant.

Since the publicity rules are designed to assure fair 

proceedings, it is not surprising that the penalty for a violation 

of the rules can result in reversal of a conviction.

D. You Must Always Be Honest With the Court.

Every court requires those who appear before it to be honest 

(ABA Model Rule 3.3). Honesty means more than simply telling 

the truth. It may require you to make a statement, rather than 

leave the court with an erroneous impression. It may require 

you to correct the record in the court, even sometimes after a 

case has been closed. While you may know that the legal 

authorities hold sacrosanct the attorney-client relationship --

that is in part the reason for prohibiting a lawyer from 

disclosing the confidences of a client -- you may not know that 

in many jurisdictions a duty of candor to the court trumps even 

the a duty of confidentiality to a client. This rule is particularly 

exacting when the government lawyer is the only one presenting 

evidence to the court, that is, when involved in an ex parte 

proceeding.

You may be surprised to learn that the candor rule applies 

whenever the government lawyer, through you, supplies 

information to the court, such as when you prepare an affidavit 

that is filed with the court. If the affidavit does not tell the 

whole story, then the case could suffer consequences. Candor 

issues arise in many different circumstances.

Here are some examples:

* Where a confidential informant identifies herself while on 

the stand and under oath with a name supplied by your 

agency but that is not her real name. 

* Where an affidavit in support of a wiretap does not 

contain a complete picture of previous methods tried and 

failed and alternative options for the government to obtain 

472 Legal Ethics for Investigative Agents
the information without the wiretap.

* Where, after testifying in a deposition, a government 

witness discovers that the information provided in the 

deposition was incorrect.

In each of these circumstances, both your cases and your 

reputation can suffer from the potential consequences of such 

non-disclosures.

E. Practice of Law and Negotiation of Agreements

Every jurisdiction has its own definition of what constitutes the 

practice of law and provides that only those properly authorized 

may practice in that jurisdiction; some jurisdictions have 

criminal statutes prohibiting the unauthorized practice of law. 

We refer to such rules here because investigative agents who 

give advice to persons about possible violations of various laws, 

who assist in the preparation or interpretation of legal 

documents, or who “negotiate” criminal penalties may be 

engaged in the unauthorized practice of law. Only government 

lawyers may properly negotiate pleas of guilty, cases of civil 

settlement, or the granting of immunity. Agents who attempt to 

negotiate on behalf of the government not only may subject 

themselves to penalties, but they also may undermine the cases 

they are attempting to resolve.

Legal Ethics for Investigative Agents 473
NOTES

474 Legal Ethics for Investigative Agents
D. Consensual Monitoring

Office of Attorney General

May 30, 20021

MEMORANDUM FOR THE HEADS AND INSPECTORS 

GENERAL OF EXECUTIVE DEPARTMENTS AND AGENCIES

FROM : THE ATTORNEY GENERAL

SUBJECT: Procedures for Lawful, Warrantless Monitoring 

of Verbal Communications

By Memorandum dated October 16, 1972, the Attorney General 

directed all federal departments and agencies to obtain 

Department of Justice authorization before intercepting verbal 

communications without the consent of all parties to the 

communication. This directive was clarified and continued in 

force by the Attorney General’s Memorandum of September 2, 

1980, to Heads and Inspectors General of Executive 

Departments and agencies. It was then superseded with new 

authorization procedures and relevant rules and guidelines, 

including limitations on the types of investigations requiring 

prior written approval by the Department of Justice, in the 

Attorney General’s Memorandum of November 7,1983.2

The Attorney General’s Memorandum of January 20, 1998, 

superseded the aforementioned directives. It continued most of 

the authorization procedures established in the November 7, 

1983, Memorandum, but reduced the sensitive circumstances 

under which prior written approval of senior officials of the 

Department of Justice’s Criminal Division is required. At the 

same time, it continued to require oral authorization from 

Department of Justice attorneys, ordinarily local Assistant 

1 As of January 2015, this memorandum remains the DOJ controlling 

authority on consensual monitoring.

2 As in all of the prior memoranda except for the one dated October 16, 

1972, this memorandum only applies to the consensual monitoring of oral, 

nonwire communications, as discussed below. “Verbal” communications will 

hereinafter be referred to as oral.

DOJ - Consensual Monitoring 475

 
United States Attorneys, before the initiation of the use of 

consensual monitoring in all investigations not requiring prior 

written approval. In addition, that Memorandum reduced and 

eventually eliminated the reporting requirement imposed on 

departments and agencies. These changes reflected the results 

of the exercise of the Department’s review function over many 

years, which showed that the departments and agencies had 

uniformly been applying the required procedures with great 

care, consistency, and good judgment, and that the number of 

requests for consensual monitoring that were not approved had 

been negligible.

This Memorandum updates and in some limited respects

modifies the Memorandum of January 20, 1998. The changes 

are as follows:

First, Parts III.A.(8) and V. of the January 20, 1998, 

Memorandum required concurrence or authorization for 

consensual monitoring by the United States Attorney, an 

Assistant United States Attorney, or the previously designated 

Department of Justice attorney responsible for a particular 

investigation (for short, a “trial attorney”). This Memorandum 

provides instead that a trial attorney must advise that the 

monitoring is legal and appropriate. This continues to limit 

monitoring to cases in which an appropriate attorney agrees to 

the monitoring, but makes it clear that this function does not 

establish a supervisory role or require any involvement by the 

attorney in the conduct of the monitoring. In addition, for cases 

in which this advice cannot be obtained from a trial attorney for 

reasons unrelated to the legality or propriety of the monitoring, 

this Memorandum provides a fallback procedure to obtain the 

required advice from a designated attorney of the Criminal 

Division of the Department of Justice. Where there is an issue 

as to whether providing the advice would be consistent with 

applicable attorney conduct rules, the trial attorney or the 

designated Criminal Division attorney should consult with the 

Department’s Professional Responsibility Advisory Office.

Second, Part V. of the Memorandum of January 20, 1998, 

required that an agency head or his or her designee give oral 

476 DOJ - Consensual Monitoring
authorization for consensual monitoring, and stated that “[a]ny 

designee should be a high-ranking supervisory official at 

headquarters level.” This rule was qualified by Attorney General 

Order No. 1623-92 of August 31, 1992, which, in relation to the 

Federal Bureau of Investigation (FBI), authorized delegation of 

this approval function to Special Agents in Charge. Experience 

has shown that the requirement of Special Agent in Charge 

approval can result in a loss of investigative opportunities 

because of an overly long approval process, and indicates that 

allowing approval by Assistant Special Agents in Charge would 

facilitate FBI investigative operations. Assistant Special Agents 

in Charge are management personnel to whom a variety of 

supervisory and oversight responsibilities are routinely given; 

generally, they are directly involved and familiar with the 

circumstances relating to the propriety of proposed uses of the 

consensual monitoring technique. Part V. is accordingly revised 

in this Memorandum to provide that the FBI Director’s 

designees for purposes of oral authorization of consensual 

monitoring may include both Special Agents in Charge and 

Assistant Special Agents in Charge. This supersedes Attorney 

General Order No. 1623-92, which did not allow delegation of 

this function below the level of Special Agent in Charge. 

Third, this Memorandum omits as obsolete Part VI. of the 

Memorandum of January 20, 1998. Part VI. imposed a 

reporting requirement by agencies concerning consensual 

monitoring but rescinded that reporting requirement after one 

year. 

The Fourth Amendment to the United States Constitution, Title 

III of the Omnibus Crime Control and Safe Streets Act of 1968, 

as amended (18 U.S.C. §2510, et seq.), and the Foreign 

Intelligence Surveillance Act of 1978 (50 U.S.C. §1801, et seq.) 

permit government agents, acting with the consent of a party to 

a communication, to engage in warrantless monitoring of wire 

(telephone) communications and oral, nonwire communications. 

See United States v. White, 401 U.S. 745 (1971); United States 

v. Caceres, 440 U.S. 741 (1979). Similarly, the Constitution and 

federal statutes permit federal agents to engage in warrantless 

monitoring of oral, nonwire communications when the 

DOJ - Consensual Monitoring 477
communicating parties have no justifiable expectation of 

privacy.3 Because such monitoring techniques are particularly 

effective and reliable, the Department of Justice encourages 

their use by federal agents for the purpose of gathering evidence 

of violations of federal law, protecting informants or undercover 

law enforcement agents, or fulfilling other, similarly compelling 

needs. While these techniques are lawful and helpful, their use 

in investigations is frequently sensitive, so they must remain 

the subject of careful, self-regulation by the agencies employing 

them.

The sources of authority for this Memorandum are Executive 

Order No. 11396 (“Providing for the Coordination by the 

Attorney General of Federal Law Enforcement and Crime 

Prevention Programs”); Presidential Memorandum (“Federal Law 

Enforcement Coordination, Policy and Priorities”) of September 

11, 1979; Presidential Memorandum (untitled) of June 30, 

1965, on, inter alia, the utilization of mechanical or electronic 

devices to overhear nontelephone conversations; the Paperwork 

Reduction Act of 1980 and the Paperwork Reduction 

Reauthorization Act of 1986, as amended; and the inherent 

authority of the Attorney General as the chief law enforcement 

officer of the United States.

I. DEFINITIONS

As used in this Memorandum, the term “agency” means all of 

the Executive Branch departments and agencies, and 

specifically includes United States Attorneys’ Offices which 

utilize their own investigators, and the Offices of the Inspectors 

General.

As used in this Memorandum, the terms “interception” and 

“monitoring” mean the aural acquisition of oral communications 

3 As a general rule, nonconsensual interceptions of wire communications 

violate 18 U.S.C. § 2511 regardless of the communicating parties’ 

expectation of privacy, unless the interceptor complies with the courtauthorization procedures of Title III of the Omnibus Crime Control and Safe 

Streets Act of 1968 (18 U.S.C. § 2510, et seq.) or with the provisions of the 

Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. § 1801 et seq.).

478 DOJ - Consensual Monitoring

 
by use of an electronic, mechanical, or other device. Cf. 18 

U.S.C. § 2510(4).

As used in this Memorandum, the term “public official” means 

an official of any public entity of government, including special 

districts, as well as all federal, state, county, and municipal 

governmental units.

II. NEED FOR WRITTEN AUTHORIZATION

A. Investigations Where Written Department of 

Justice Approval is Required

A request for authorization to monitor an oral communication 

without the consent of all parties to the communication must be 

approved in writing by the Director or Associate Director of the 

Office of Enforcement Operations, Criminal Division, U.S. 

Department of Justice, when it is known that:

(1) the monitoring relates to an investigation of a 

member of Congress, a federal judge, a 

member of the Executive Branch at Executive 

Level IV or above, or a person who has served 

in such capacity within the previous two 

years; 

(2) the monitoring relates to an investigation of 

the Governor, Lieutenant Governor, or 

Attorney General of any State or Territory, or 

a judge or justice of the highest court of any 

State or Territory, and the offense 

investigated is one involving bribery, conflict 

of interest, or extortion relating to the 

performance of his or her official duties;

(3) any party to the communication is a member 

of the diplomatic corps of a foreign country;

(4) any party to the communication is or has 

been a member of the Witness Security 

DOJ - Consensual Monitoring 479
Program and that fact is known to the agency 

involved or its officers;

(5) the consenting or nonconsenting person is in 

the custody of the Bureau of Prisons or the 

United States Marshals Service; or

(6) the Attorney General, Deputy Attorney 

General, Associate Attorney General, any 

Assistant Attorney General, or the United 

States Attorney in the district where an 

investigation is being conducted has 

requested the investigating agency to obtain 

prior written consent before conducting 

consensual monitoring in a specific 

investigation.

In all other cases, approval of consensual monitoring will be in 

accordance with the procedures set forth in part V. below.

B. Monitoring Not Within Scope of Memorandum

Even if the interception falls within one of the six categories 

above, the procedures and rules in this Memorandum do not 

apply to:

(1) extraterritorial interceptions;

(2) foreign intelligence interceptions, including 

interceptions pursuant to the Foreign 

Intelligence Surveillance Act of 1978 (50 

U.S.C. § 1801, et seq.);

(3) interceptions pursuant to the courtauthorization procedures of Title III of the 

Omnibus Crime Control and Safe Streets Act 

of 1968, as amended (18 U.S.C. § 2510, et 

seq.);

(4) routine Bureau of Prisons monitoring of oral 

480 DOJ - Consensual Monitoring
communications that are not attended by a 

justifiable expectation of privacy;

(5) interceptions of radio communications; and

(6) interceptions of telephone communications.

III. AUTHORIZATION PROCEDURES AND RULES

A. Required Information

The following information must be set forth in any request to 

monitor an oral communication pursuant to part II.A.:

(1) Reasons for the Monitoring. The request must 

contain a reasonably detailed statement of 

the background and need for the monitoring.

(2) Offense. If the monitoring is for investigative 

purposes, the request must include a citation 

to the principal criminal statute involved.

(3) Danger. If the monitoring is intended to 

provide protection to the consenting party, 

the request must explain the nature of the 

danger to the consenting party.

(4) Location of Devices. The request must state 

where the monitoring device will be hidden: 

on the person, in personal effects, or in a 

fixed location.

(5) Location of Monitoring. The request must 

specify the location and primary judicial 

district where the monitoring will take place. 

A monitoring authorization is not restricted to 

the original district. However, if the location 

of monitoring changes, notice should be 

promptly given to the approving official. The 

record maintained on the request should 

DOJ - Consensual Monitoring 481
reflect the location change.

(6) Time. The request must state the length of 

time needed for the monitoring. Initially, an 

authorization may be granted for up to 90 

days from the day the monitoring is 

scheduled to begin. If there is the need for 

continued monitoring, extensions for 

additional periods of up to 90 days may be 

granted. In special cases (e.g., “fencing” 

operations run by law enforcement agents or 

long-term investigations that are closely 

supervised by the Department’s Criminal 

Division) authorization for up to 180 days 

may be granted with similar extensions.

(7) Names. The request must give the names of 

persons, if known, whose communications 

the department or agency expects to monitor 

and the relation of such persons to the 

matter under investigation or to the need for 

the monitoring.

(8) Attorney Advice. The request must state that 

the facts of the surveillance have been 

discussed with the United States Attorney, an 

Assistant United States Attorney, or the 

previously designated Department of Justice 

attorney responsible for a particular 

investigation, and that such attorney advises 

that the use of consensual monitoring is 

appropriate under this Memorandum 

(including the date of such advice). The 

attorney must also advise that the use of 

consensual monitoring under the facts of the 

investigation does not raise the issue of 

entrapment. Such statements may be made 

orally. If the attorneys described above 

cannot provide the advice for reasons 

unrelated to the legality or propriety of the 

482 DOJ - Consensual Monitoring
consensual monitoring, the advice must be 

sought and obtained from an attorney of the 

Criminal Division of the Department of 

Justice designated by the Assistant Attorney 

General in charge of that Division. Before 

providing such advice, a designated Criminal 

Division Attorney shall notify the appropriate 

United States Attorney or other attorney who 

would otherwise be authorized to provide the 

required advice under this paragraph.

(9) Renewals. A request for renewal authority to 

monitor oral communications must contain 

all the information required for an initial 

request. The renewal request must also refer 

to all previous authorizations and explain 

why an additional authorization is needed, as 

well as provide an updated statement that 

the attorney advice required under paragraph 

(8) has been obtained in connection with the 

proposed renewal.

B. Oral Requests

Unless a request is of an emergency nature, it must be in 

written form and contain all of the information set forth above. 

Emergency requests in cases in which written Department of 

Justice approval is required may be made by telephone to the 

Director or an Associate Director of the Criminal Division’s 

Office of Enforcement Operations, or to the Assistant Attorney 

General, the Acting Assistant Attorney General, or a Deputy 

Assistant Attorney General for the Criminal Division, and 

should later be reduced to writing and submitted to the 

appropriate headquarters official as soon as practicable after 

authorization has been obtained. An appropriate headquarters 

filing system is to be maintained for consensual monitoring 

requests that have been received and approved in this manner. 

Oral requests must include all the information required for 

written requests as set forth above.

DOJ - Consensual Monitoring 483
C. Authorization

Authority to engage in consensual monitoring in situations set 

forth in part II.A. of this Memorandum may be given by the 

Attorney General, the Deputy Attorney General, the Associate 

Attorney General, the Assistant Attorney General or Acting 

Assistant Attorney General in charge of the Criminal Division, a 

Deputy Assistant Attorney General in the Criminal Division, or 

the Director or an Associate Director of the Criminal Division’s 

Office of Enforcement Operations. Requests for authorization 

will normally be submitted by the headquarters of the 

department or agency requesting the consensual monitoring to 

the Office of Enforcement Operations for review.

D. Emergency Monitoring

If an emergency situation requires consensual monitoring at a 

time when one of the individuals identified in part III.B. above 

cannot be reached, the authorization may be given by the head 

of the responsible department or agency, or his or her designee. 

Such department or agency must then notify the Office of 

Enforcement Operations as soon as practicable after the 

emergency monitoring is authorized, but not later than three 

working days after the emergency authorization.

The notification shall explain the emergency and shall contain 

all other items required for a nonemergency request for 

authorization set forth in part III.A. above.

IV. SPECIAL LIMITATIONS

When a communicating party consents to the monitoring of his 

or her oral communications, the monitoring device may be 

concealed on his or her person, in personal effects, or in a fixed 

location. Each department and agency engaging in such 

consensual monitoring must ensure that the consenting party 

will be present at all times when the device is operating. In 

addition, each department and agency must ensure: (1) that no 

agent or person cooperating with the department or agency 

trespasses while installing a device in a fixed location, unless 

484 DOJ - Consensual Monitoring
that agent or person is acting pursuant to a court order that 

authorizes the entry and/or trespass, and (2) that as long as 

the device is installed in the fixed location, the premises remain 

under the control of the government or of the consenting party. 

See United States v. Yonn, 702 F.2d 1341, 1347 (11th Cir.), 

cert. denied, 464 U.S. 917 (1983) (rejecting the First Circuit’s 

holding in United States v. Padilla, 520 F.2d 526 (1st Cir. 

1975), and approving use of fixed monitoring devices that are 

activated only when the consenting party is present). But see 

United States v. Shabazz, 883 F. Supp. 422 (D. Minn. 1995).

Outside the scope of this Memorandum are interceptions of 

oral, nonwire communications when no party to the 

communication has consented. To be lawful, such interceptions 

generally may take place only when no party to the 

communication has a justifiable expectation of privacy,4 or 

when authorization to intercept such communications has been 

obtained pursuant to Title III of the Omnibus Crime Control and 

Safe Streets Act of 1968 (18 U.S.C. § 2510, et seq.) or the 

Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. § 1801 

et seq.). Each department or agency must ensure that no 

communication of any party who has a justifiable expectation of 

privacy is intercepted unless proper authorization has been 

obtained.

V. PROCEDURES FOR CONSENSUAL MONITORING 

WHERE NO WRITTEN APPROVAL IS REQUIRED

Prior to receiving approval for consensual monitoring from the 

head of the department or agency or his or her designee, a 

representative of the department or agency must obtain advice 

that the consensual monitoring is both legal and appropriate 

from the United States Attorney, an Assistant United States 

Attorney, or the Department of Justice attorney responsible for 

a particular investigation. The advice may be obtained orally 

from the attorney. If the attorneys described above cannot 

4 For example, burglars, while committing a burglary, have no justifiable 

expectation of privacy. Cf. United States v. Pui Kan Lam, 483 F.2d 1202 (2d. 

Cir. 1973), cert. denied, 415 U.S. 984 (1974).

DOJ - Consensual Monitoring 485

 
provide this advice for reasons unrelated to the legality or 

propriety of the consensual monitoring, the advice must be of 

Executive Departments and Agencies sought and obtained from 

an attorney of the Criminal Division of the Department of 

Justice designated by the Assistant Attorney General in charge 

of that Division. Before providing such advice, a designated 

Criminal Division Attorney shall notify the appropriate United 

States Attorney or other attorney who would otherwise be 

authorized to provide the required advice under this paragraph.

Even in cases in which no written authorization is required 

because they do not involve the sensitive circumstances 

discussed above, each agency must continue to maintain 

internal procedures for supervising, monitoring, and approving 

all consensual monitoring of oral communications. Approval for 

consensual monitoring must come from the head of the agency 

or his or her designee. Any designee should be a high-ranking 

supervisory official at headquarters level, but in the case of the 

FBI may be a Special Agent in Charge or Assistant Special 

Agent in Charge.

Similarly, each department or agency shall establish procedures 

for emergency authorizations in cases involving non-sensitive 

circumstances similar to those that apply with regard to cases 

that involve the sensitive circumstances described in part III.D., 

including obtaining follow-up oral advice of an appropriate 

attorney as set forth above concerning the legality and propriety 

of the consensual monitoring.

Records are to be maintained by the involved departments or 

agencies for each consensual monitoring that they have 

conducted. These records are to include the information set 

forth in part III.A. above.

VI. GENERAL LIMITATIONS

This Memorandum relates solely to the subject of consensual 

monitoring of oral communications except where otherwise 

indicated. This Memorandum does not alter or supersede any 

current policies or directives relating to the subject of obtaining 

necessary approval for engaging in nonconsensual electronic 

surveillance or any other form of nonconsensual interception.

486 DOJ - Consensual Monitoring
E. Giglio Policy

Office of the Attorney General

Washington, D.C. 20530

Policy Regarding the Disclosure to Prosecutors of Potential 

Impeachment Information Concerning Law Enforcement Agency 

Witnesses1

Preface

The following policy is established for: the Federal Bureau of 

Investigation, Drug Enforcement Administration, Immigration 

and Naturalization Service, the United States Marshals Service, 

the Department of Justice Office of the Inspector General, and 

the Department of Justice Office of Professional Responsibility 

(“the investigative agencies”). It addresses their disclosure of 

potential impeachment information to the United States 

Attorneys’ Offices and Department of Justice litigating sections 

with authority to prosecute criminal cases (“Department of 

Justice prosecuting offices”). The purpose of this policy is to 

ensure that prosecutors receive sufficient information to meet 

their obligations under Giglio v. United States, 405 U.S. 150 

(1972), while protecting the legitimate privacy rights of 

Government employees.2

The exact parameters of potential impeachment information are 

not easily determined. Potential impeachment information, 

however, has been generally defined as impeaching information 

which is material to the defense. This information may include 

but is not strictly limited to: (a) specific instances of conduct of 

a witness for the purpose of attacking the witness’ credibility or 

character for truthfulness; (b) evidence in the form of opinion or 

reputation as to a witness’ character for truthfulness; (c) prior 

1 Located at the DOJ website: http://www.justice.gov/ag/policy-regardingdisclosure-prosecutors-potential-impeachment-information-concerning-law

2 This policy is not intended to create or confer any rights, privileges, or 

benefits to prospective or actual witnesses or defendants. It is also not 

intended to have the force of law. United States v. Caceres, 440 U.S. 741 

(1979).

DOJ - Giglio Policy 487

 
inconsistent statements; and (d) information that may be used 

to suggest that a witness is biased. 

This policy is not intended to replace the obligation of individual 

agency employees to inform prosecuting attorneys with whom 

they work of potential impeachment information prior to 

providing a sworn statement or testimony in any investigation 

or case. In the majority of investigations and cases in which 

agency employees may be affiants or witnesses, it is expected 

that the prosecuting attorney will be able to obtain all potential 

impeachment information directly from agency witnesses during 

the normal course of investigations and/or preparation for 

hearings or trials.

Procedures for Disclosing Potential Impeachment 

Information Relating to Department of Justice Employees

1. Obligation to Disclose Potential Impeachment 

Information. It is expected that a prosecutor generally 

will be able to obtain all potential impeachment 

information directly from potential agency witnesses 

and/or affiants. Each investigative agency employee is 

obligated to inform prosecutors with whom they work of 

potential impeachment information as early as possible 

prior to providing a sworn statement or testimony in any 

criminal investigation or case. Each investigative agency 

should ensure that its employees fulfill this obligation. 

Nevertheless, in some cases, a prosecutor may also decide 

to request potential impeachment information from the 

investigative agency. This policy sets forth procedures for 

those cases in which a prosecutor decides to make such a 

request.

2. Agency Officials. Each of the investigative agencies shall 

designate an appropriate official(s) to serve as the point(s) 

of contact concerning Department of Justice employees’ 

potential impeachment information (“the Agency Official”). 

Each Agency Official shall consult periodically with the 

relevant Requesting Officials about Supreme Court 

caselaw, circuit caselaw, and district court rulings and 

488 DOJ - Giglio Policy
practice governing the definition and disclosure of 

impeachment information.

3. Requesting Officials. Each of the Department of Justice 

prosecuting offices shall designate an appropriate senior 

official(s) to serve as the point(s) of contact concerning 

potential impeachment information (“the Requesting 

Official”). Each Requesting Official shall inform the 

relevant Agency Officials about Supreme Court caselaw, 

circuit caselaw, and district court rulings and practice 

governing the definition and disclosure of impeachment 

information.

4. Request to Agency Officials. When a prosecutor 

determines that it is necessary to request potential 

impeachment information from an Agency Official(s) 

relating to an agency employee identified as a potential 

witness or affiant (“the employee”) in a specific criminal 

case or investigation, the prosecutor shall notify the 

appropriate Requesting Official. Upon receiving such 

notification, the Requesting Official may request potential 

impeachment information relating to the employee from 

the employing Agency Official(s) and the designated 

Agency Official(s) in the Department of Justice Office of 

the Inspector General (“OIG”) and the Department of 

Justice Office of Professional Responsibility (“DOJ-OPR”).

5. Agency Review and Disclosure. Upon receiving the 

request described in Paragraph 4, the Agency Official(s) 

from the employing agency, the OIG and DOJ-OPR shall 

each conduct a review, in accordance with its respective 

agency plan, for potential impeachment information 

regarding the identified employee. The employing Agency 

Official(s), the OIG, and DOJ-OPR shall advise the 

Requesting Official of: (a) any finding of misconduct that 

reflects upon the truthfulness or possible bias of the 

employee, including a finding of lack of candor during an 

administrative inquiry; (b) any past or pending criminal 

charge brought against the employee; and (c) any credible 

allegation of misconduct that reflects upon the 

DOJ - Giglio Policy 489
truthfulness or possible bias of the employee that is the 

subject of a pending investigation.

6. Treatment of Allegations Which Are Unsubstantiated, Not 

Credible, or Have Resulted in Exoneration. Allegations 

that cannot be substantiated, are not credible, or have 

resulted in the exoneration of an employee generally are 

not considered to be potential impeachment information. 

Upon request, such information which reflects upon the 

truthfulness or bias of the employee, to the extent 

maintained by the agency, will be provided to the 

prosecuting office under the following circumstances: (a) 

when the Requesting Official advises the Agency Official 

that it is required by a Court decision in the district 

where the investigation or case is being pursued; (b) 

when, on or after the effective date of this policy: (i) the 

allegation was made by a federal prosecutor, magistrate 

judge, or judge; or (ii) the allegation received publicity; (c) 

when the Requesting Official and the Agency Official 

agree that such disclosure is appropriate, based upon 

exceptional circumstances involving the nature of the 

case or the role of the agency witness; or (d) when 

disclosure is otherwise deemed appropriate by the 

agency. The agency is responsible for advising the 

prosecuting office, to the extent determined, whether any 

aforementioned allegation is unsubstantiated, not 

credible, or resulted in the employee’s exoneration.

Note: With regard to allegations disclosed to a prosecuting 

office under this paragraph, the head of the prosecuting 

office shall ensure that special care is taken to protect the 

confidentiality of such information and the privacy 

interests and reputations of agency employee-witnesses, 

in accordance with paragraph 13 below. At the 

conclusion of the case, if such information was not 

disclosed to the defense, the head of the prosecuting 

office shall ensure that all materials received from an 

investigative agency regarding the allegation, including 

any and all copies, are expeditiously returned to the 

investigative agency. This does not prohibit a prosecuting 

490 DOJ - Giglio Policy
office from keeping motions, responses, legal memoranda, 

court orders, and internal office memoranda or 

correspondence, in the relevant criminal case file(s).

7. Prosecuting Office Records. Department of Justice 

prosecuting offices shall not retain in any system of 

records that can be accessed by the identity of an 

employee, potential impeachment information that was 

provided by an agency, except where the information was 

disclosed to defense counsel. This policy does not 

prohibit Department of Justice prosecuting offices from 

keeping motions and Court orders and supporting 

documents in the relevant criminal case file.

8. Copies to Agencies. When potential impeachment 

information received from Agency Officials has been 

disclosed to a Court or defense counsel, the information 

disclosed, along with any judicial rulings and related 

pleadings, shall be provided to the Agency Official that 

provided the information and to the employing Agency 

Official for retention in the employing agency’s system of 

records. The agency shall maintain judicial rulings and 

related pleadings on information that was disclosed to the 

Court but not to the defense in a manner that allows 

expeditious access upon the request of the Requesting 

Official.

9. Record Retention. When potential impeachment 

information received from Agency Officials has been 

disclosed to defense counsel, the information disclosed, 

along with any judicial rulings and related pleadings, may 

be retained by the Requesting Official, together with any 

related correspondence or memoranda, in a system of 

records that can be accessed by the identity of the 

employee.

10. Updating Records. Before any federal prosecutor uses or 

relies upon information included in the prosecuting 

office’s system of records, the Requesting Official shall 

contact the relevant Agency Official(s) to determine the 

DOJ - Giglio Policy 491
status of the potential impeachment information and 

shall add any additional information provided to the 

prosecuting office’s system of records. 

11. Continuing Duty to Disclose. Each agency plan shall 

include provisions which will assure that, once a request 

for potential impeachment information has been made, 

the prosecuting office will be made aware of any 

additional potential impeachment information that arises 

after such request and during the pendency of the 

specific criminal case or investigation in which the 

employee is a potential witness or affiant. A prosecuting 

office which has made a request for potential 

impeachment information shall promptly notify the 

relevant agency when the specific criminal case or 

investigation for which the request was made ends in a 

judgment or declination, at which time the agency’s duty 

to disclose shall cease.

12. Removal of Records upon Transfer, Reassignment, or 

Retirement of Employee. Upon being notified that an 

employee has retired, been transferred to an office in 

another judicial district, or been reassigned to a position 

in which the employee will neither be an affiant nor 

witness, and subsequent to the resolution of any litigation 

pending in the prosecuting office in which the employee 

could be an affiant or witness, the Requesting Official 

shall remove from the prosecuting office’s system of 

records any record that can be accessed by the identity of 

the employee.

13. Prosecuting Office Plans to Implement Policy. Within 120 

days of the effective date of this policy, each prosecuting 

office shall develop a plan to implement this policy. The 

plan shall include provisions that require: (a) 

communication by the prosecuting office with the agency 

about the disclosure of potential impeachment 

information to the Court or defense counsel, including 

allowing the agency to express its views on whether 

certain information should be disclosed to the Court or 

492 DOJ - Giglio Policy
defense counsel; (b) preserving the security and 

confidentiality of potential impeachment information 

through proper storage and restricted access within a 

prosecuting office; (c) when appropriate, seeking an ex 

parte, in camera review and decision by the Court 

regarding whether potential impeachment information 

must be disclosed to defense counsel; (d) when 

appropriate, seeking protective orders to limit the use and 

further dissemination of potential impeachment 

information by defense counsel; and, (e) allowing the 

relevant agencies the timely opportunity to fully express 

their views.

14. Investigative Agency Plans to Implement Policy. Within 

120 days of the effective date of this policy, each of the 

investigative agencies shall develop a plan to effectuate 

this policy.

Date: 12/9/963

This policy is not intended to create or confer any rights, 

privileges, or benefits to prospective or actual witnesses or 

defendants. It is also not intended to have the force of law. 

United States v. Caceres, 440 U.S. 741 (1979).

3 This policy remains in effect as of January 2015.

DOJ - Giglio Policy 493

 
F. Glossary of Terms

Accused: The person accused of the commission of a federal 

crime. Use of this term does not imply the person under 

investigation is guilty of any crime. After a person is indicted by 

the grand jury, that person is referred to as the “defendant.”

Amicus Brief: A legal argument provided to an appellant court 

by a non-party. Amicus means, literally, friend of the court. 

The court retains discretion on the acceptance of an amicus 

brief.

Attorney Work Product: Tangible material collected or 

prepared by a party in expectation of litigation. Under the work 

product rule, this material is not subject to the rules of 

discovery unless the opposing party can demonstrate undue 

hardship.

Attorney-Client Privilege: A client’s privilege to refuse to 

disclose or prevent another from disclosing confidential 

communications between the client and the attorney.

Bill of Attainder: A special act of a legislature declaring 

persons guilty of offenses without conviction or the due course 

of judicial proceedings. Bills of Attainder are prohibited by the 

U.S. Constitution (Article I, Section 9).

Case-in-Chief: The portion of a court proceeding in which the 

party with the burden of proof (the government in criminal 

cases) presents its evidence in support of its allegation(s). In a 

criminal trial, the U.S. Attorney presents the government’s casein-chief through direct examination of prosecution witnesses.

Challenge for Cause: In a jury trial, each party is permitted to 

strike (challenge) potential jurors from sitting on the jury. A 

challenge for cause is an appeal to a judge to remove a potential 

juror because of a specific reason (for example, the juror cannot 

hear the case fairly, knows one of the persons expected to 

participate in the trial, or has a vested interest in the outcome 

of the proceeding). Compare to a peremptory challenge.

Charge to the Grand Jury: Given by the judge presiding over 

the selection and organization of the grand jury, the charge is 

the court’s instructions to the grand jury as to its duties, 

494 Glossary
functions, and obligations, and how to best perform them.

Criminal Complaint: A formal charging document that sets 

out the facts and cause of action (establishing probable cause) 

that the government alleges are sufficient to support a claim 

against the charged party (the defendant).

Deliberations: The discussion by the grand jury members as to 

whether or not to return an indictment on a given charge 

against an accused. During deliberations no one except the 

grand jury members may be present.

District: The geographical area over which the federal district 

court where the grand jury sits and the grand jury itself have 

jurisdiction. The territorial limitations of the district will be 

explained to the grand jury by the district judge.

En Banc: Literally means “on a bench.” Typically means an 

appellate court will re-hear a panel (generally three judges) 

decision with all members of the court’s participation.

Evidence: Testimony of witnesses, documents, and exhibits as 

presented to the grand jury by an attorney for the government 

or otherwise properly brought before it. In some instances, the 

person under investigation may also testify.

Federal: The national government as distinguished from the 

state governments.

Grand Jury: Consists of sixteen (to form a quorum) to twentythree members, summoned to review complaints and 

accusations in criminal cases. Upon the vote of twelve jurors, 

issues an indictment. Governed by the Fed.R.Crim.P. 6. 

Grand Jurors’ Immunity: Immunity is granted to all grand 

jurors for their authorized actions while serving on a federal 

grand jury and means that no grand juror may be penalized for 

actions taken within the scope of his or her service as a grand 

juror.

Habeas Corpus: Latin translation for “you have the body.” A 

Writ of Habeas Corpus is a court order to a party to bring forth 

the body, to show cause concerning the lawfulness of 

possessing the body. This is a legal appeal to a court to obtain 

release from unlawful custody. The privilege of the Writ of 

Glossary 495
Habeas Corpus is preserved in the Constitution at Article I, 

Section 9.

Indictment: The written formal charge of a crime by the grand 

jury, returned when 12 or more grand jurors vote in favor of it.

Information: The written formal charge of crime by the United 

States Attorney, filed against an accused who, if charged with a 

serious crime, must have knowingly waived the requirements 

that the evidence first be presented to a grand jury.

“No Bill”: Also referred to as “not a true bill,” the “no bill” is 

the decision by the grand jury not to indict a person.

Peremptory Challenge: The right of a party to challenge a 

potential juror without having to provide grounds for removing 

that potential juror from further consideration. Each side has 

20 peremptory challenges when the government seeks the death 

penalty. In other felony cases, the government has 6 

peremptory challenges and the defendant has 10 peremptory 

challenges. Challenges are governed by Fed.R.Crim.P. 24. 

Compare to challenges for cause.

Petit Jury: The trial jury, composed of 12 members, that hears 

a case after indictment and renders a verdict or decision after 

hearing the prosecution’s entire case and whatever evidence the 

defendant chooses to offer.

Probable Cause: The finding necessary in order to return an 

indictment against a person accused of a federal crime. A 

finding of probable cause is proper only when the evidence 

presented to the grand jury, without any explanation being 

offered by the accused, persuades 12 or more grand jurors that 

a federal crime has probably been committed by the person 

accused.

Quorum for Grand Jury to Conduct Business: Sixteen of the 

23 members of a federal grand jury must at all times be present 

at a grand jury session in order for the grand jury to be able to 

conduct business.

United States Attorney: The chief legal officer for the United 

States government in each federal district.

496 Glossary
G. Wray Memorandum on Garrity / Kalkines Warnings

DOJ - Wray Memo 497
498 DOJ Wray – Memo
DOJ - Wray Memo 499
500 DOJ Wray – Memo
DOJ - Wray Memo 501
H. Fisher Letter on Garrity / Kalkines Warnings

502 DOJ - Fisher Letter
DOJ - Fisher Letter 503
I. DHS - Use of Deadly Force Policy

504 DHS - Use of Deadly Force Policy
DHS - Use of Deadly Force Policy 505
506 DHS - Use of Deadly Force Policy
DHS - Use of Deadly Force Policy 507
J. DHS – Public Safety Exception Policy

508 DHS - Public Safety Exception
DHS - Public Safety Exception 509
K. Guidance for Prosecutors Regarding Criminal 

Discovery

510 DOJ - Guidance for Prosecutors Regarding Criminal Discovery
DOJ - Guidance for Prosecutors Regarding Criminal Discovery 511
512 DOJ - Guidance for Prosecutors Regarding Criminal Discovery
DOJ - Guidance for Prosecutors Regarding Criminal Discovery 513
514 DOJ - Guidance for Prosecutors Regarding Criminal Discovery
DOJ - Guidance for Prosecutors Regarding Criminal Discovery 515
516 DOJ - Guidance for Prosecutors Regarding Criminal Discovery
DOJ - Guidance for Prosecutors Regarding Criminal Discovery 517
518 DOJ - Guidance for Prosecutors Regarding Criminal Discovery
DOJ - Guidance for Prosecutors Regarding Criminal Discovery 519
520 DOJ - Guidance for Prosecutors Regarding Criminal Discovery
DOJ - Guidance for Prosecutors Regarding Criminal Discovery 521
L. Use, Preservation and Disclosure of 

eCommunications in Federal Criminal Cases

522 DOJ - Guidance for Prosecutors Regarding Electronic Communications
DOJ – Guidance for Prosecutors Regarding Electronic Communications 523
524 DOJ - Guidance for Prosecutors Regarding Electronic Communications
DOJ – Guidance for Prosecutors Regarding Electronic Communications 525
526 DOJ - Guidance for Prosecutors Regarding Electronic Communications
DOJ – Guidance for Prosecutors Regarding Electronic Communications 527
528 DOJ - Guidance for Prosecutors Regarding Electronic Communications
DOJ – Guidance for Prosecutors Regarding Electronic Communications 529
530 DOJ - Guidance for Prosecutors Regarding Electronic Communications
DOJ – Guidance for Prosecutors Regarding Electronic Communications 531
M. Memo Concerning Electronic Recording of Statements

532 DOJ - Memo Concerning the Electronic Recording of Statements
DOJ - Memo Concerning the Electronic Recording of Statements 533
534 DOJ - Memo Concerning the Electronic Recording of Statements
DOJ - Memo Concerning the Electronic Recording of Statements 535
536 DOJ - Memo Concerning the Electronic Recording of Statements
DOJ - Memo Concerning the Electronic Recording of Statements 537
NOTES

538 DOJ - Memo Concerning the Electronic Recording of Statements
N. Table of Cases

A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S. Ct. 1723 

(1964).................................................................................................271

Abel v. United States, 362 U.S. 217, 80 S. Ct. 683 (1960) ..................61, 260

Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921 (1972) ..........................111

Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4 (1925)..........................200

Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964)..............................124

Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412 (1990) .........................114

Alderman v. United States, 394 U.S. 165; 89 S. Ct. 961 (1969) .................16

Almeida-Sanchez v. United States, 413 U.S. 266, 93 S. Ct. 2535 (1973)...100

Andresen v. Maryland, 427 U.S. 463, 96 S. Ct. 2737 (1976)............. 131, 293

Arizona v. Evans, 514 U.S. 1, 115 S. Ct. 1185 (1995).................................20

Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246 (1991) ..................306

Arizona v. Gant, 129 S. Ct. 1710 (2009) ..................................................210

Arizona v. Hicks, 480 U.S. 321, 107 S. Ct. 1149 (1987) ...........................161

Arizona v. Johnson, 129 S. Ct. 781 (2009)...............................................193

Arizona v. Mauro, 481 U.S. 520, 107 S. Ct. 1931 (1987) ..........................319

Arizona v. Roberson, 486 U.S. 675, 108 S. Ct. 2093 (1988)......................345

Arkansas v. Sullivan, 532 U.S. 769, 121 S. Ct. 1876 (2001).....................264

Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536 (2001) ...........74

Bailey v. United States, 568 U.S. ___, 133 S. Ct. 1031 (2013)...................147

Banks v. Dretke, 540 U.S. 668, 124 S. Ct. 1256 (2004)...........................417

Beckwith v. United States, 425 U.S. 341, 96 S. Ct. 1612 (1976)...............323

Beecher v. Alabama, 408 U.S. 234, 92 S. Ct. 2282 (1972)........................307

Bellis v. United States, 417 U.S. 85, 94 S. Ct. 2179 (1974) ......................301

Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).......................................338

Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138 (1984) ....................320

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 

403 U.S. 388; 91 S. Ct. 1999 (1971) ....................................................407

Board of Education v. Earls, 536 U.S. 822, 122 S. Ct. 822 (2002) ............255

Bobby v. Dixon, 565 U.S. ___, 132 S. Ct. 26 (2011)..................................362

Bond v. United States, 529 U.S. 334, 120 S. Ct. 1462 (2000) .....................54

Brady v. Maryland, 373 U.S. 83; 83 S. Ct. 1194 (1963)............................416

Braswell v. United States, 487 U.S. 99, 108 S. Ct. 2284 (1988)................298

Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400 (2007).......................70

Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232 (1977)..........................380

Brigham City v. Stuart, 547 U.S. 398, 126 S. Ct. 1943 (2006)..................190

Brogan v. United States, 522 U.S. 398, 118 S. Ct. 805 (1998) ..................275

Brower v. Inyo County, 489 U.S. 593, 109 S. Ct. 1378 (1989) ....................68

Brown et. al. v. Mississippi, 297 U.S. 278, 56 S. Ct. 461 (1936) ...............292

Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254 (1975) .............................279

Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637 (1979).................................112

Bullcoming v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705 (2011)..............393

Bumper v. North Carolina, 391 U.S. 543, 89 S. Ct. 1788 (1968)...............226

Byars v. United States, 273 U.S. 28, 47 S. Ct. 248 (1927)........................120

California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982 (1991) ....................172

California v. Beheler, 463 U.S. 1121; 103 S. Ct. 3517 (1983) ...................330

Table of Cases 539
California v. Carney, 471 U.S. 386, 105 S. Ct. 2066 (1985)......................171

California v. Ciraolo, 476 U.S. 207, 106 S. Ct. 1809 (1986)........................37

California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625 (1988)....................60

California v. Hodari, 499 U.S. 621, 111 S. Ct. 1547 (1991) ........................67

California v. Prysock, 453 U.S. 355, 101 S. Ct. 2806 (1981).....................356

Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727 (1967).............237

Cardwell v. Lewis, 417 U.S. 583, 94 S. Ct. 2464 (1974)..............................43

Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280 (1925) ....................163

Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975 (1970).......................164

Chandler v. Miller, 520 U.S. 305, 117 S. Ct. 305 (1997)...........................256

Chapman v. United States, 365 U.S. 610, 81 S. Ct. 776 (1961) ................223

Chavez v. Martinez, 538 U.S. 760, 123 S. Ct. 1994 (2002) .......................365

Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034 (1969)........................198

City of Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447 (2000) .........245

City of Ontario v. Quon, 560 U.S. 746, 130 S. Ct. 2619 (2010)...................50

Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738 (1987).........................232

Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515 (1986).......................305

Colorado v. Spring, 479 U.S. 564, 107 S. Ct. 851 (1987)..........................354

Connecticut v. Barrett, 479 U.S. 523, 107 S. Ct. 828 (1987) ....................355

Connelly v. Georgia, 429 U.S. 245, 97 S. Ct. 546 (1977) ..........................129

Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022 (1971)...............35

Cooper v. California, 386 U.S. 58, 87 S. Ct. 788 (1967)............................233

Corley v. United States, 556 U.S. 303; 129 S. Ct. 1558 (2009) .................273

Couch v. United States, 409 U.S. 322, 93 S. Ct. 611 (1973) .....................299

County Of Sacramento v. Lewis, 523 U.S. 833; 118 S. Ct. 1708 (1998).....408

Cupp v. Murphy, 412 U.S. 291, 93 S. Ct. 2000 (1973) .............................176

Dalia v. United States, 441 U.S. 238, 99 S. Ct. 1682 (1979).....................156

Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394 (1969) ..........................87

Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350 (1994)...................349

Davis v. United States, 564 U.S. ___, 131 S. Ct. 2419 (2011)......................21

Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391 (1979) ...........................90

Devenpeck v. Alford, 543 U.S. 146, 125 S. Ct. 588 (2004)........................262

Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326 (2000).............316

Doe v. United States, 487 U.S. 201, 108 S. Ct. 2341 (1988) .....................299

Donovan v. Dewey, 452 U.S. 594, 101 S. Ct. 2534 (1981) ........................239

Dow Chemical Co. v. United States, 476 U.S. 227, 106 S. Ct. 1819 (1986) .37

Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240 (1976)..................................342

Draper v. United States, 358 U.S. 307, 79 S. Ct. 329 (1959) ....................105

Duckworth v. Eagan, 492 U.S. 195, 109 S. Ct. 2875(1989) .....................357

Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979).....................277

Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880 (1981).......................344

Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437 (1960) .......................2

Fellers v. United States, 540 U.S. 519, 124 S. Ct. 1019 (2004).................386

Ferguson v. City of Charleston, 532 U.S. 67, 121 S. Ct. 1281 (2000)........253

Fernandez v. California, 571 U.S. ___, 134 S. Ct. 1126 (2014)..................221

Fisher v. United States, 425 U.S. 391, 96 S. Ct.1569 (1976) ....................300

Fletcher v. Weir, 455 U.S. 603, 102 S. Ct. 1309 (1982) ............................340

Flippo v. West Virginia, 528 U.S. 11, 120 S. Ct. 7 (1999)..........................189

Florence v. County of Burlington, 566 U.S. ___, 132 S. Ct. 1510 (2012)....206

540 Table of Cases
Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382 (1991)............................71

Florida v. Harris, 568 U.S. ___, 133 S. Ct. 1050 (2013) ............................110

Florida v. J. L., 529 U.S. 266, 120 S. Ct. 1375 (2000) ..............................115

Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409 (2013).........................229

Florida v. Jimeno, 500 U.S. 297, 111 S. Ct. 1801 (1991)..........................228

Florida v. Myers, 466 U.S. 380, 104 S. Ct. 1852 (1984)............................167

Florida v. Powell, 130 S. Ct. 1195 (2010) .................................................317

Florida v. Riley, 488 U.S. 445, 109 S. Ct. 693 (1989) .................................38

Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319 (1983) ..............................88

Florida v. Wells, 495 U.S. 1, 110 S. Ct. 1632 (1990).................................235

Florida v. White, 526 U.S. 559, 119 S. Ct. 1555 (1999) ............................266

Foster v. California, 394 U.S. 440, 89 S. Ct. 1127 (1969) .........................282

Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978).........................157

Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420 (1969)...............................219

G. M. Leasing Corp. v. United States, 429 U.S. 338, 97 S. Ct. 619 (1977).265

Gardner v. Broderick, 392 U.S. 273, 88 S. Ct. 1913 (1968) ......................368

Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616 (1967) .......................369

Georgia v. Randolph, 126 S. Ct. 1515 (2006) ...........................................220

Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854 (1975)...............................269

Giglio v. United States, 405 U.S. 150; 92 S. Ct. 763 (1972) ......................418

Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951 (1967) ........................387

Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S. Ct. 153 (1931)

..........................................................................................................198

Gooding v. United States, 416 U.S. 430, 94 S. Ct. 1780 (1974) ................155

Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261 (1921) ......................36

Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865 (1989)........................397

Groh v. Ramirez, 540 U.S. 551, 124 S. Ct. 1284 (2004) ...........................133

Hanlon v. Berger, 526 U.S. 808, 119 S. Ct. 1706 (1999) ..........................159

Hardy v. Cross, 565 U.S. ___, 132 S. Ct. 490 (2011).................................395

Harris v. New York, 401 U.S. 222, 91 S. Ct. 643 (1971) ...........................374

Harris v. United States, 390 U.S. 234, 88 S. Ct. 992 (1968) .....................231

Hayes v. Florida, 470 U.S. 811, 105 S. Ct. 1643 (1985)..............................97

Haynes v. Washington, 373 U.S. 503, 83 S. Ct. 1336 (1963) ....................308

Henry v. United States, 361 U.S. 98, 80 S. Ct. 168 (1959)........................104

Herring v. United States, 555 U.S. 135, 129 S. Ct. 695 (2009) ...................20

Hester v. United States, 265 U.S. 57, 44 S. Ct. 445 (1924).........................57

Hiibel v. Sixth Judicial Dist. Court, 540 U.S. 1175, 124 S. Ct. 1494 (2003)

..........................................................................................................268

Hoffa v. United States, 385 U.S. 293, 87 S. Ct. 408 (1966).........................45

Horton v. California, 496 U.S. 128, 110 S. Ct. 2301 (1990) ......................160

Howes v. Fields, 565 U.S. ___, 132 S. Ct. 1181 (2012)..............................327

Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194 (1984) ...........................51

Illinois v. Andreas, 463 U.S. 765, 103 S. Ct. 3319 (1983)...........................40

Illinois v. Caballes, 543 U.S. 405, 125 S. Ct. 769 (2005) ............................92

Illinois v. Gates, 462 U.S. 213, 103 S. Ct 2317 (1983)..............................126

Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160 (1987)................................22

Illinois v. Lafayette, 462 U.S. 640, 103 S. Ct. 2605 (1983)........................234

Illinois v. Lidster, 540 U.S. 419, 124 S. Ct. 885 (2004).............................246

Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946 (2001).........................151

Table of Cases 541
Illinois v. Perkins, 496 U.S. 292, 110 S. Ct. 2394 (1990)..........................318

Illinois v. Rodriguez, 497 U.S. 177, 110 S. Ct. 2793 (1990) ......................224

Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673 (2000) ..........................118

J. D. B. v. North Carolina, 564 U.S. ___, 131 S. Ct. 2394 (2011)...............333

James v. Illinois, 493 U.S. 307, 100 S. Ct. 648 (1990) ...............................26

Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct. 2124 (1980) .....................339

Kalkines v. United States, 473 F.2d 1391 (1973) .....................................370

Kastigar et. al. v. United States, 406 U.S. 441, 92 S. Ct. 1653 (1972).......312

Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967) ..........................32

Kaupp v. Texas, 538 U.S. 626, 123 S. Ct. 1843 (2003).............................281

Kentucky v. King, 563 U.S. ____, 131 S. Ct. 1849 (2011)..........................174

Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877 (1972) ...............................377

Kirk v. Louisiana, 536 U.S. 635, 122 S. Ct. 2458 (2002) ............................78

Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484 (1998)..............................214

Kolender v. Lawson, 461 U.S. 352, 103 S. Ct. 1855 (1983).......................267

Kuhlmann v. Wilson, 477 U.S. 436, 106 S. Ct. 2616 (1986) .....................385

Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038 (2001) .......................44

LaChance v. Erickson, 522 U.S. 262, 118 S. Ct. 753(1998)......................372

Lefkowitz v. Turley, 414 U.S. 70, 94 S. Ct. 316 (1973) .............................371

Lego v. Twomey, 404 U.S. 477, 92 S. Ct. 619 (1972) ................................309

Lewis v. United States, 385 U.S. 206, 87 S. Ct. 424 (1966) ......................227

Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S. Ct. 2319 (1979)...........130

Los Angeles County v. Rettele, 127 S. Ct. 1989 (2007) .............................148

Lynumn v. Illinois, 372 U.S. 528, 83 S. Ct. 917 (1963) ............................304

Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 477 (1985)............................390

Malley v. Briggs, 475 U.S. 335; 106 S. Ct. 1092 (1986) ............................410

Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489 (1964)..................................273

Mancusi v. DeForte, 392 U.S. 364, 88 S. Ct. 2120 (1968) ..........................16

Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243 (1977).......................288

Mapp v. Ohio, 367 U.S. 643, 81 S. Ct 1684 (1961).......................................2

Marshall v. Barlow’s Inc., 436 U.S. 307, 98 S. Ct. 1816 (1978).................238

Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093 (1990) ............................84

Maryland v. Dyson, 527 U.S.465, 119 S. Ct. 2013 (1999).........................170

Maryland v. Garrison, 480 U.S. 79, 107 S. Ct. 1013 (1987)......................136

Maryland v. King, 569 U.S. ___, 133 S. Ct. 1958 (2013) ...........................207

Maryland v. Macon, 472 U.S. 463, 105 S. Ct. 2778 (1985) .........................52

Maryland v. Pringle, 540 U.S. 366, 124 S. Ct. 795 (2003).........................109

Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct. 1213 (2010) .......................347

Maryland v. Wilson, 519 U.S. 408, 117 S. Ct. 882 (1997)...........................94

Massachusetts v. Sheppard, 468 U.S. 981, 104 S. Ct. 3424 (1984) ............18

Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199 (1964) ................388

Mathis v. United States, 391 U.S. 1, 88 S. Ct. 1503 (1968) ......................326

McNeil v. Wisconsin, 501 U.S. 171, 111 S. Ct. 2204 (1991)......................351

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527 (2011)...392

Messerschmidt v. Millender, 132 S. Ct. 1235 (2012) ................................135

Michigan v. Bryant, 562 U.S. ___, 131 S. Ct. 1143 (2011) ........................394

Michigan v. Chesternut, 486 U.S. 567, 108 S. Ct. 1975 (1988)...................69

Michigan v. Clifford, 464 U.S. 287, 104 S. Ct. 641 (1984) ........................185

Michigan v. Fisher, 558 U.S. 45, 130 S. Ct. 546 (2009)............................191

542 Table of Cases
Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469 (1983) ........................194

Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321 (1975).............................342

Michigan v. Sitz, 496 U.S. 444, 110 S. Ct. 2481 (1990)............................244

Michigan v. Summers, 452 U.S. 693, 101 S. Ct. 2587 (1981) ...................144

Michigan v. Thomas, 458 U.S. 259, 102 S. Ct. 3079 (1982)......................166

Michigan v. Tucker, 417 U.S. 433, 94 S. Ct. 2357 (1974) .........................363

Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942 (1978) ............................183

Millbrook v. United States, 569 U.S. ___, 133 S. Ct. 1441 (2013)..............414

Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408 (1978) ...........................186

Minnesota v. Carter, 525 U.S. 83, 119 S. Ct. 469 (1998)............................47

Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130 (1993) ................195

Minnesota v. Olson, 495 U.S. 91, 110 S. Ct. 1684 (1990)...........................46

Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486 (1990) ....................346

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966) .........................315

Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552 (2013).......................178

Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601 (2004)........................360

Mitchell v. United States, 526 U.S. 314, 119 S. Ct. 1307 (1999)...............275

Montejo v. Louisiana, 556 U.S. 778, 129 S. Ct. 2079 (2009).....................377

Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135 (1986) .........................366

Muehler v. Mena, 544 U.S. 93, 125 S. Ct. 1465 (2005).............................146

Murphy et. al. v. Waterfront Commission of New York Harbor, 378 U.S. 52, 

84 S. Ct. 1594 (1964)..........................................................................311

Murray v. United States, 487 U.S. 533, 108 S. Ct. 2529 (1988)..................27

Nardone et al. v. United States, 308 U.S. 338, 60 S. Ct. 266 (1939)..............5

NASA v. FLRA, 527 U.S. 229, 119 S. Ct. 1979 (1999)...............................373

National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S. Ct. 

1384 (1989) ........................................................................................251

Navarette v. California, 572 U.S. ___, 134 S. Ct. 1683 (2014) ...................116

Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972) ..................................284

New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733 (1985) .........................34

New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860 (1981) .......................211

New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636 (1987).......................241

New York v. Class, 475 U.S. 106, 106 S. Ct. 960 (1986).............................53

New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640 (1990)....................76, 278

New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626 (1984) .....................375

Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501 (1984) ...............................28

North Carolina v. Butler, 441 U.S. 369, 99 S. Ct.1755 (1979) ..................358

O’Connor v. Ortega, 480 U.S. 709, 107 S. Ct. 1492 (1987).........................48

Ohio v. Reiner, 532 U.S. 17, 121 S. Ct. 1252 (2001) ................................314

Ohio v. Robinette, 519 U.S. 33, 117 S. Ct. 417 (1996)..............................218

Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735 (1984) ....................58

Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564 (1928) ..................31

Oregon v. Bradshaw, 462 U.S. 1039, 103 S. Ct. 2830 (1983) ...................352

Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285 (1985)...........................359

Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711 (1977) ........................322

Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657 (1996) ...............103

Orozco v. Texas, 394 U.S. 324, 89 S. Ct. 1095 (1969) ..............................325

Patterson v. Illinois, 487 U.S. 285, 108 S. Ct. 2389 (1988).......................382

Payton v New York, 445 U.S. 573, 100 S. Ct. 1371 (1980)..........................75

Table of Cases 543
Pembaur v. Cincinnati, 475 U.S. 469, 106 S. Ct. 1292 (1986) ....................80

Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357, 118 S. 

Ct. 2014 (1998).....................................................................................30

Pennsylvania v. Bruder, 488 U.S. 9, S. Ct. 205 (1988) .............................321

Pennsylvania v. Labron, 518 U.S. 938, 116 S. Ct. 2485 (1996).................169

Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330 (1977) ......................93

Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct. 2638 (1990) ..................335

Perry v. New Hampshire, 132 S. Ct. 716 (2012) .......................................286

Peters v. New York, 392 U.S. 40, 88 S. Ct. 1889 (1968)............................108

Plumhoff v. Rickard, 572 U.S. 134, S. Ct. 2012 (2014).............................403

Preston v. United States, 376 U.S. 364, 84 S. Ct. 881 (1964) ...................213

Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421 (1978)..................................11

Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556 (1980) .......................10

Reichle v. Howards, 566 U.S. ___, 132 S. Ct. 2088 (2012) ........................411

Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682 (1980)....................334

Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416 (1997) ..................141

Riley v. California (consolidated with U.S. v. Wurie), 573 U.S. ___, 134 S. Ct. 

2474 (2014) ........................................................................................208

Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661 (1991)..................420

Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735 (1961)..........................303

Rothgery v. Gillespie County, 554 U.S. 191, 128 S. Ct. 2578 (2008) .........378

Ryburn v. Huff, 565 U.S. ___, 132 S. Ct. 987 (2012).................................192

Sabbath v. United States, 391 U.S. 585, 88 S. Ct. 1755 (1968) ................138

Salinas v. Texas, 570 U.S. ___, 133 S. Ct. 2174 (2013).............................337

Samson v. California, 547 U.S. 843, 126 S. Ct. 2193 (2006).....................249

Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S. Ct. 2669 (2006)............421

Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001) .............................405

Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826 (1966) .......... 177, 289

Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041 (1973) ............217

Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769 (2007) ..............................401

See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737 (1967) .......................236

Segura v. United States, 468 U.S. 796, 104 S. Ct. 3380 (1984) ................153

Sgro v. United States, 287 U.S. 206, 53 S. Ct. 138 (1932)........................154

Shipley v. California, 395 U.S. 818, 89 S. Ct. 2053 (1969) .......................201

Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889 (1968)...........................107

Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182 (1920)

..............................................................................................................4

Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967 (1968).................287

Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 109 S. Ct. 

1402 (1989) ........................................................................................250

Smith v. Cain, 565 U.S. ___; 132 S. Ct. 627 (2012) ..................................419

Smith v. Illinois, 469 U.S. 91, 105 S. Ct. 490 (1984) ................................350

Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577 (1979)............................66

Smith v. United States, 568 U.S. ___, 133 S. Ct. 714 (2013).....................423

Snyder v. Phelps, 562 U.S. 443, 131 S. Ct. 1207 (2011)...........................422

Soldal v. Cook County, 506 U.S. 56, 113 S. Ct. 538 (1992) ........................73

South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092 (1976) ............230

Spano v. New York, 360 U.S. 315, 79 S. Ct. 1202 (1959)..........................310

Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584 (1969) ...................125

544 Table of Cases
Stanford v. Texas, 379 U.S. 476, 85 S. Ct. 506 (1965)..............................132

Stansbury v. California, 511 U.S. 318, 114 S. Ct. 1526 (1994).................328

Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642 (1981) ................79

Steele v. United States, 267 U.S. 498, 45 S. Ct. 414 (1925)......................137

Stoner v. California, 376 U.S. 483, 84 S. Ct. 889 (1964) ..........................224

Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967 (1967) .............................283

Taylor v. Alabama, 457 U.S. 687, 102 S. Ct. 2664 (1982).............................8

Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694 (1985) .........................399

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968) ........................................85

Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535 (1983).............................162

Texas v. Cobb, 532 U.S. 162, 121 S. Ct. 1335 (2001)...............................391

Thompson v. Keohane, 516 U.S. 99, 116 S. Ct. 457 (1995) ......................331

Thompson v. Louisiana, 469 U.S. 17, 105 S. Ct. 409 (1984).....................187

Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745 (1963) .............................308

Trupiano v. United States, 334 U.S. 699, 68 S. Ct. 1229 (1948) ...................9

United States v. Arvizu, 534 U.S. 266; 122 S. Ct. 744 (2002) ...................119

United States v. Balsys, 524 U.S. 666, 118 S. Ct. 2218 (1999) .................297

United States v. Banks, 540 U.S. 31, 124 S.Ct. 521 (2003) ......................143

United States v. Biswell, 406 U.S. 311, 92 S. Ct. 1593 (1972) ..................243

United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574 (1975)......102

United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613 (1974)...................29

United States v. Ceccolini, 435 U.S. 268, 98 S. Ct. 1054 (1978) ...................5

United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476 (1977)............39, 197

United States v. Crews, 445 U.S. 463, 100 S. Ct. 1244 (1980)......................6

United States v. Dionisio, 410 U.S. 1, 93 S. Ct. 764 (1973) ......................290

United States v. Doe, 465 U.S. 605, 104 S. Ct. 1237 (1984) .....................293

United States v. Drayton, 536 U.S. 194, 122 S. Ct. 2105 (2002).................72

United States v. Dunn, 480 U.S. 294, 107 S. Ct. 1134 (1987) ....................59

United States v. Edwards, 415 U.S. 800, 94 S. Ct. 1234 (1974)................203

United States v. Flores-Montano, 541 U.S. 149, 124 S. Ct. 1582 (2004) ...259

United States v. Gouveia, 467 U.S. 180, 104 S. Ct. 2292 (1984)...............379

United States v. Grubbs, 547 U.S. 90, 126 S. Ct. 1494 (2006) .................128

United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133 (1975) ......................341

United States v. Harris, 403 U.S. 573, 91 S. Ct. 2075 (1971) ...................127

United States v. Havens, 446 U.S. 620, 100 S. Ct. 1912 (1980)..................24

United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183 (1980)..................384

United States v. Hensley, 469 U.S. 221, 105 S. Ct. 675 (1985)...................95

United States v. Hubbell, 530 U.S. 27, 120 S. Ct. 2037 (2000) .................295

United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652 (1984)...............63

United States v. Johns, 469 U.S. 478, 105 S. Ct. 881 (1985)....................168

United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012) .......................33

United States v. Karo, 468 U.S. 705, 104 S. Ct. 3296 (1984)......................42

United States v. Knights, 534 U.S. 112, 122 S.Ct. 587 (2001) ..................248

United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984)......................17

United States v. Mara, 410 U.S. 19, 93 S. Ct. 774 (1973).........................291

United States v. Martinez-Fuerte, 428 U.S. 543, 96 S. Ct. 3074 (1976).....101

United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988 (1974)...................222

United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870 (1980) .........216

United States v. Miller, 425 U.S. 435, 96 S. Ct. 1619 (1976) ......................65

Table of Cases 545
United States v. Montoya de Hernandez, 473 U.S. 531, 105 S. Ct. 3304 

(1985)...................................................................................................98

United States v. Padilla, 508 U.S. 77, 113 S. Ct. 1936 (1993).....................15

United States v. Patane, 542 U.S. 630, 124 S. Ct. 2620 (2004).................364

United States v. Payner, 447 U.S. 727, 100 S. Ct. 2439 (1980)...................13

United States v. Place, 462 U.S. 696, 103 S. Ct. 2637 (1983) .....................55

United States v. Ramirez, 523 U.S. 65, 118 S. Ct. 992 (1998) ..................142

United States v. Ramsey, 431 U.S. 606, 97 S. Ct. 1972 (1977) .................258

United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467 (1973).................203

United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157 (1982)....................165

United States v. Salvucci, Jr., 448 U.S. 83, 100 S. Ct. 2547 (1980) ............13

United States v. Santana, 427 U.S. 38, 96 S. Ct. 2406 (1976) ..................182

United States v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568 (1985) ..................91

United States v. Sokolow, 490 U.S. 1, 109 S. Ct. 1581 (1989) ..................113

United States v. Van Leeuwen, 397 U.S. 249, 90 S. Ct. 1029 (1970).........152

United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741 (1965)................122

United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S. Ct. 1056 (1990)..62

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926 (1967).....................388

United States v. Watson, 423 U.S. 411, 96 S. Ct. 820 (1976) .....................82

Vale v. Louisiana, 399 U.S. 30, 90 S. Ct. 1969 (1970)..............................202

Vernonia School District v. Acton, 515 U.S. 646, 115 S. Ct. 2386 (1995)..254

Virginia v. Moore, 553 U.S. 164; 128 S. Ct. 1598 (2008) ..........................204

Walder v. United States, 347 U.S. 62, 74 S. Ct. 354 (1954) ........................23

Walter v. United States, 447 U.S. 649, 100 S. Ct. 2395 (1980) ...................64

Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642 (1967) ..........................180

Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341 (1914) .........................1

Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091 (1984).......................181

Whiteley v. Warden, 401 U.S. 560, 91 S. Ct. 1031 (1971)...........................81

Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769 (1996).................261

Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914 (1995).......................139

Wilson v. Layne, 526 U.S. 603, 119 S. Ct. 1692 (1999) ............................158

Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611 (1985)..............................121

Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407 (1963) .................11

Wood v. Moss, 572 U.S. ___, 134 S. Ct. 2056 (2014) ................................412

Wyman v. James, 400 U.S. 309, 91 S. Ct. 381 (1971) ..............................257

Wyoming v. Houghton, 526 U.S. 295, 119 S. Ct. 1297 (1999)...................173

Yarborough v. Alvarado, 541 U.S. 652, 124 S. Ct. 2140 (2004) ................332

Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338 (1979)...............................149

Zurcher v. Stanford Daily, 436 U.S. 547, 98 S. Ct. 1970 (1978) ...............270

546 Table of Cases
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