CHAPTER 1
THE CONSTITUTIONALIZATION OF CRIMINAL PROCEDURE
INTRODUCTION
(a) Coverage
This nutshell provides an overview of the current constitutional regulation of
the criminal justice process, along with a more detailed analysis of specific
constitutional standards governing selected aspects of the process. Chapter 1
discusses the doctrinal foundations of the constitutional regulation of the
process. Chapters 2–6 then describe the constitutional regulation of police
investigations. The analysis here brings together the various different
constitutional guarantees that bear upon different police investigative
procedures. In Chapters 7 and 8, we consider the constitutional right to the
assistance of counsel and the constitutional prohibition against compelled
self-incrimination as they bear upon procedures other than police
investigations. We have given these constitutional rights individual
treatment because of their pervasive significance, as they impact all stages of
the process. In chapter 9, we add a brief survey of several additional
constitutional restrictions that are applicable to the non-investigative
portions of the process.
It would take far more space than we have available to restate even in the
briefest fashion all of the Supreme Court rulings that have shaped the
constitutional standards currently applicable even as to the investigative
stage alone. Prior to the 1960s, space limitations would not have been a
problem. Indeed, those constitutional rulings applicable to the state criminal
justice systems—which produce the vast bulk of criminal investigations and
criminal prosecutions in this country—could readily have been surveyed in
less than a quarter of these pages. That changed during the latter half of Chief
Justice Warren’s tenure (basically 1961–69), when the Court issued an
extensive body of rulings expanding federal constitutional regulation of the
state criminal justice processes. The expansion was so great that
commentators described it as the “criminal-justice-revolution” of the Warren
Court. Since that time, no field of constitutional adjudication has consistently
occupied a more substantial portion of the Supreme Court’s docket than the
regulation of criminal procedure. Almost every Supreme Court term has been
marked by at least a few decisions producing significant new developments
in constitutional criminal procedure, and by a larger group of rulings that
have finetuned previously announced standards. The end result is a
substantial body of precedent, creating as to some subjects (e.g., police
searches) a body of constitutional regulation so extensive that it rivals a
complex statutory code in its comprehensiveness and intricacy. Our
discussion focuses on the most basic of these constitutional standards,
mentioning the “exceptions” to these standards (and the “exceptions to the
exceptions”) only where they have a significant practical impact.
(b) The criminal procedure provisions of the Constitution
(c) To understand how constitutional limitations came to play such a significant
role in the regulation of the criminal justice process, one must start by
examining the provisions in the Constitution that deal with criminal
procedure. The Constitution as originally adopted had only a few provisions
relating to the administration of the criminal law (the most significant of
these provisions being the Article III requirements that the “trial of all
Crimes, except in Cases of Impeachment, shall be by Jury,” and in the “the
State where the said crimes shall have been committed”). But once the
process of obtaining state ratification produced a commitment to add
amendments guaranteeing various rights of individuals (and thereby making
explicit the federal government’s lack of authority to violate these rights), it
became obvious that the criminal justice process would receive considerable
attention in those amendments. The various state constitutions in their “Bills
of Rights” had given great emphasis to the rights of individuals subjected to
the criminal justice process, recognizing the potential, as reflected in English
and colonial history, for the government’s misuse of that process to
persecute political and religious dissidents. Those state constitutions did not
seek to set forth all of the basic protections of suspects and defendants that
were recognized at common law, but concentrated on certain celebrated
guarantees that had been established in response to notorious misuses of the
criminal process by the English Crown (some of these guarantees having
been established in the distant past and others being of more recent vintage,
reflecting the colonial experience). The federal constitution’s “Bill of Rights”
(the first ten amendments, adopted in 1791) adhered to this model. Even
though the Bill of Rights deals only selectively with the criminal justice
process, of its twenty-seven guarantees of rights of individuals (i.e., excluding
the structural safeguards of the Ninth and Tenth Amendments), fifteen deal
specifically with the criminal justice process. The Fourth Amendment
guarantees the right of the people to be secure against unreasonable
searches and seizures and prohibits the issuance of warrants unless certain
conditions are met. The Fifth Amendment requires prosecution by grand jury
indictment for all infamous crimes (excepting certain military prosecutions)
and prohibits placing a person “twice in jeopardy” or compelling him in “a
criminal case” to be a “witness against himself.” The Sixth Amendment lists
several rights that apply “in all criminal prosecutions”—the rights to a
speedy trial, to a public trial, to an impartial jury of the state and district in
which the crime was committed, to notice of the “nature and cause of the
accusation,” to confrontation of opposing witnesses, to compulsory process
for obtaining favorable witnesses, and to the assistance of counsel. The
Eighth Amendment adds prohibitions against requiring excessive bail,
imposing excessive fines, and inflicting cruel and unusual punishment In
addition to these fifteen, the Fifth Amendment’s due process clause clearly
includes the criminal justice process in its general prohibition against the
“deprivat[ion] of life, liberty or property” (which includes imposing capital
sentencing, incarceration, and criminal fines) without “due process of law.”
Taken together, the various Bill of Rights provisions offer an obvious
potential for extensive constitutional regulation of the criminal justice
process. Constitutional provisions, however, are not self-defining. Their
ultimate impact depends, in large part, upon how they are interpreted by the
judiciary in the course of adjudicating individual cases. Thus, it was not until
the Supreme Court came to adopt certain critical interpretations of the
Constitution’s criminal procedure guarantees that the potential for
substantial constitutionalization of the criminal justice process was realized.
(d) Constitutionalization by judicial interpretation
Two important doctrinal developments were prerequisites to establishing,
through Supreme Court rulings, extensive constitutional regulation of the
nation’s criminal justice procedures. First, the relevant guarantees in the Bill
of Rights had to be made applicable in large part to state proceedings.
Although federal criminal jurisdiction has been expanding over the years,
almost 99% of all criminal prosecutions still are brought in the state systems.
For the Constitution to have a major impact upon criminal justice
administration, its criminal procedure provisions had to be held applicable to
state as well as federal proceedings. That application eventually was
achieved through the Supreme Court’s reading of the Fourteenth
Amendment’s due process clause. Although the Fourteenth Amendment was
adopted in 1868, it was not until the Warren Court adopted the “selective
incorporation” doctrine in the 1960s, almost 100 years later, that the due
process was held to make the major Bill of Rights guarantees applicable to
the states. That development is discussed in § 1.2.
The second major doctrinal prerequisite for the extensive
constitutionalization of criminal procedure was adoption of expansive
interpretations of individual guarantees. Even though applied to the states,
the Bill of Rights guarantees, if interpreted narrowly, would have only a
limited impact upon the criminal justice process. A narrow construction of
each of the guarantees would produce a constitutional regulatory scheme
that governs only a small portion of the total process and imposes there
limitations fairly restricted in scope and unlikely to have a significant impact
upon traditional state and federal criminal justice practices. Consider, for
example, the Fifth Amendment clause stating that “no person * * * shall be
compelled in any criminal case to be a witness against himself.” Read
narrowly, that provision might be said simply to prohibit the state from
compelling the defendant to testify in his criminal trial as to any
incriminating aspects of his involvement in the offense charged. Such an
interpretation would establish constitutionally an important structural
element of an accusatorial process, but its significance would be limited to
the trial, and even there, it would only restate a prohibition firmly
established in the law of all fifty states. On the other hand, an expansive
interpretation of the self-incrimination privilege could render the privilege
applicable to a wide range of practices occurring throughout the process, and
impose limitations that extend far beyond those found in the law of most
(and sometimes even all) states. The Supreme Court has, in fact, done exactly
that, as discussed in Chapter 8.
The expansive interpretations are the product of a liberal interpretative
philosophy. That philosophy rejects viewing constitutional guarantees as
narrow, technical provisions. A guarantee’s scope is not limited to barring
the particular procedural practice (or series of practices) that gave rise to its
adoption. Liberal construction recognizes the need to extend the guarantee,
by analogy, to new practices that are modern counterparts of those original
core violations. So too, a liberal interpretive philosophy recognizes the
potential for extending the basic principle underlying a guarantee in light of a
changed procedural context. It also allows for the adoption of requirements
that promote the successful implementation of the guarantees in light of
administrative realities.
The application of a liberal interpretive philosophy will vary with the
individual justice and the end result will vary with the composition of the
Court at a particular time. Liberal construction does not ensure the broadest
conceivable interpretation, one that takes the most expansive general policy
suggested by the guarantee and applies it without regard to limitations
suggested by language and history, or alternative (and narrower)
understandings of the clause’s underlying policy. Justices also are influenced
by the other theories of constitutional interpretation commonly explored in
constitutional law courses (including pragmatism, the concept of a “living
constitution,” and originalism).
The adoption of expansive interpretations of the Constitution’s criminal
procedure guarantees is not a new phenomenon. Indeed, it is debatable
whether any Supreme Court ruling has ever adopted a broader view of the
Fourth Amendment than did Boyd v. U.S., 116 U.S. 616 (1886) (§§ 6.3(b),
8.3(a)). Until the 1960s, however, Supreme Court opinions adopting
strikingly expansive interpretations of criminal procedure guarantees were
fairly infrequent. That was changed by the Warren Court, as its 1960s rulings
marked the heyday of expansionist interpretations. Over the subsequent
decades, Court rulings have been less pronounced in their extension of
constitutional regulation. Indeed, in some instances the Court has withdrawn
from previous expansive rulings, and in many instances, it has refused to
extend those rulings. Yet each decade also has been marked by rulings that
significantly extended the scope of constitutional regulation as to a particular
aspect of the criminal justice process.
§ 1.2
APPLICATION OF THE BILL OF RIGHTS GUARANTEES TO THE
STATES
(a) Introduction
The first 10 Amendments were enacted as limitations solely upon the
federal government. Barron v. Baltimore, 32 U.S. 243 (1833). The
adoption of the Fourteenth Amendment in 1868, however, significantly
extended federal constitutional controls over the actions of state
governments. That Amendment provides, inter alia, that “no State” may
“deprive any person of life, liberty, and property, without due process of
law.” From the outset, the Supreme Court found troublesome the
determination of the exact relationship of the limitations that Fourteenth
Amendment imposed upon the states and the limitations that the Bill of
Rights imposed upon the federal government.
(b) From fundamental rights to selective incorporation
The relationship between the Fourteenth Amendment and the Bill of
Rights was first considered by the Supreme Court in the criminal
procedure context in Hurtado v. Cal., 110 U.S. 516 (1884). The Court there
adopted the “fundamental rights interpretation” of the Fourteenth
Amendment’s due process clause, an interpretation that prevailed until
the early 1960s and that still governs the content of what is commonly
described as “free-standing due process” (see § 1.3). The fundamental
rights interpretation holds that there is no necessary relationship
between the content of the Fourteenth Amendment and the guarantees of
the Bill of Rights. The due process clause is viewed as protecting, whether
or not included in the Bill of Rights, those rights “so rooted in the
traditions and conscience of our people as to be ranked as fundamental.”
Snyder v. Mass., 291 U.S. 97 (1934). As applied to criminal procedure,
those fundamental rights basically require that the state adhere to “that
fundamental fairness essential to the very concept of justice.” Lisenba v.
Cal., 314 U.S. 219 (1941). While the recognition of a procedural right in
one of the specific guarantees of the Bill of Rights is a likely indicator that
the right is an essential component of fundamental fairness, that
recognition is not conclusive. Similarly, the absence of a specific Bill of
Rights guarantee prohibiting a particular practice does not necessarily
mean that the practice complies with fundamental fairness. In support of
the fundamental rights interpretation, it frequently was argued that not
all Bill of Rights guarantees necessarily reflect in all their aspects that
process needed to achieve basic fairness. Some Bill of Rights guarantees
were seen as reflecting only the “restricted views of Eighteenth Century
England regarding the best method for the ascertainment of facts.”
Adamson v. Cal., 332 U.S. 46 (1947) (Frankfurter, J., con.). Still other
guarantees were viewed as encompassing a fundamental right in their
general conception, but not in every aspect of the guarantee as it had
been applied to the federal system. For example, the Fifth Amendment’s
double jeopardy clause had been held to prohibit the federal government
from retrying a previously acquitted defendant both where the
government’s only justification for seeking a retrial was its interest in
gaining a second chance to prove guilt and where it alleged that the
original verdict of acquittal had been tainted by a trial error that worked
to the prosecution’s disadvantage. The Supreme Court held, however, that
a retrial did not bar fundamental fairness in the latter situation, as the
government was only seeking one fair opportunity to present its case. At
the same time, it suggested that the retrial in the former situation would
deprive the defendant of fundamental fairness. Moreover, even as to the
retrial where the acquittal had been flawed by trial error, it pointed to
special circumstances that contributed to its conclusion that fundamental
fairness was not violated (e.g., this was not a case where the state had
made repeated attempts to convict the defendant). Palko v. Conn., 302
U.S. 319 (1937).
In the course of defending the fundamental fairness approach, the Court
rejected the contention that the fourteenth Amendment was intended to
make applicable to the states all of the guarantees of the Bill of Rights.
This “total incorporation” position was advanced by various dissenting
opinions, receiving the support of four dissenters in one case. Adamson v.
Cal., 332 U.S. 46 (1947). The Court majority concluded that this position
lacked support in either the history or language of the Fourteenth
Amendment (including both the due process and privileges and
immunities clauses), and was inconsistent with initial interpretation of
the Fourteenth Amendment by Justices who were most familiar with its
background. In 1961, Justice Brennan, in a dissenting opinion, advanced
what came to be known as the “selective incorporation” view of the
Fourteenth Amendment. Cohen v. Hurley, 366 U.S. 117 (1961 Brennan, J.,
dis.). He argued for a position that would combine elements of both the
“fundamental rights” and “total incorporation” interpretations. Selective
incorporation accepts the basic premise of the fundamental rights
interpretation that the Fourteenth Amendment encompasses rights,
substantive or procedural, that are so basic as to be ranked as
“fundamental.” It recognizes too that not all rights specified in the Bill of
Rights are necessarily fundamental. It rejects the fundamental rights
interpretation, however, insofar as that doctrine looks only to the
character of the particular element of a specified right denied in the
particular case, and evaluates that element with reference to the “totality
of circumstances” of that case. Evaluating the fundamental nature of a
right in terms of the “factual circumstances surrounding each individual
case” is viewed as “extremely subjective and excessively discretionary.”
Limiting a decision to only one aspect of the specified right also is
rejected as presenting the same difficulty. Accordingly, in determining
whether a specified right is fundamental, the selective incorporation
doctrine requires that the Court look at the total right guaranteed by the
particular Bill of Rights provision, not merely at a single aspect of that
right nor at the application of that aspect in the circumstances of the
particular case. If it is decided that a particular guarantee is fundamental,
that right will be incorporated into the Fourteenth Amendment “whole
and intact.” The specified right will then be enforced against the states in
every case according to the same standards applied to the federal
government. With respect to those guarantees within the Bill of Rights
held to be fundamental, there is, as Justice Douglas put it, “coextensive
coverage” under the Fourteenth Amendment and the Bill of Rights.
Johnson v. La., 406 U.S. 356 (1972).
The selective incorporation doctrine gained majority support during the
1960s. The debate as to its adoption was presented largely in concurring
and dissenting opinions, as the majority opinions typically applied the
doctrine without any extensive discussion as to why the focus should be
on the whole of an enumerated right. Justices opposing selective
incorporation argued that it was no more than an artificial compromise
between traditional fundamental fairness and the total incorporation
doctrines. Duncan v. La., 391 U.S. 145 (1968) (Harlan, J., dis.). Supporters
of the doctrine stressed that selective incorporation reduced the potential
for subjectivity and “avoid[ed] the impression of personal, ad hoc
adjudication” by discarding an analysis that focused on the totality of the
circumstances of the individual case. Selective incorporation was also
praised as promoting certainty in the law, and thereby facilitating state
court enforcement of due process standards; once a specified right was
held to be fundamental, the state courts were directed to the specific
language of the Bill of Rights guarantee and the various past decisions
interpreting that guarantee in the context of federal prosecutions. This
stood in contrast to the case-by-case rulings under fundamental fairness,
which left the state courts at sea as to whether other circumstances and
other elements of a particular right would produce a different result as to
what was fundamental. Although selective incorporation would also
expand federal constitutional regulation of the state criminal justice
systems, that was viewed as consistent with the interests of federalism
because the regulation was limited to rights which were fundamental and
therefore too important to allow the states to disregard in the interests of
local experimentation. Pointer v. Tex., 380 U.S. 400 (1965) (Goldberg, J.,
con.). In the Court’s leading discussion of the adoption of selective
incorporation, Duncan v. La., 391 U.S. 15 145 (1968), the Court noted
that the caselaw applying the doctrine had also accepted a conception of a
“fundamental right” broader than that applied in the earlier fundamental
fairness rulings. A right now was to be judged by reference to its
operation within the “common law system of [criminal procedure] * * *
that has been developing * * * in this country, rather than its theoretical
justification as a necessary element of a ‘fair and equitable procedure.’ ”
The fact that another system of justice could operate without a particular
right (as the civil system operated without jury trials) did not work
against finding the right to be fundamental in our system. Also, greater
emphasis was placed upon the very presence of a right within the Bill of
Rights as strong evidence of its fundamental nature.
(c) The incorporated rights
In McDonald v. City of Chicago, 130 S.Ct. 3020 (2010), the Court reviewed
the rulings of the 1960s and thereafter and concluded that selective
incorporation had made applicable to the states all of the criminal
procedure guarantees of the Bill of Rights (see §1.1(B)) except two: (1)
the “Fifth Amendment’s grand jury requirement,” and (2) the Eighth
Amendment’s prohibition of excessive fines. The governing decisions
excluding application of the grand jury clause, although they “long
predate the era of selective incorporation,” continue to be followed. The
Court simply “never ha[s] decided whether the * * * Eighth Amendment’s
prohibition of excessive fines applies to the states through the Due
Process Clause.”
(d) Incorporation of federal-context precedent
In holding that the Fourteenth Amendment selectively incorporated the
Sixth Amendment’s jury trial right, the majority in Duncan v. La., 391 U.S.
145 (1968), acknowledged the state’s contention that incorporation could
disrupt long established state practices by requiring adherence to past
interpretations of the Sixth Amendment that were developed solely in
terms of federal court practice. Justice Fortas, in a separate opinion,
argued that the proper response to the state’s concern was to distinguish
between those past Sixth Amendment rulings that had defined the basic
elements of the jury trial requirement and those that had adopted “a
system of administration” for applying that right in the federal context
(e.g., requiring a 12 person jury). The latter decisions, Justice Fortas
argued, need not be selectively incorporated, as the selective
incorporation concept did not require the Court to impose upon the
states the totality of the Sixth Amendment guarantee, including “all its
bag and baggage, however securely or insecurely affixed they may be by
law or precedent.”
The Court had no need to decide in Duncan whether absolute parallelism
(desparagingly characterized by Justice Harlan as “jot for jot”
incorporation) would be mandated in the application of the Sixth
Amendment guarantee to federal and state systems. However, the
Duncan majority clearly indicated that it was not receptive to the type of
distinction that Justice Fortas suggested. It suggested that, if past
decisions dealing with “administrative” aspects of the jury trial guarantee
should appear to be inappropriate as applied to the states, the proper
approach was to “reconsider” the constitutional grounding of those
decisions, and possibly conclude that the standards announced there
were not required, as a matter of constitutional law, for either the federal
or state systems. Subsequently, in Williams v. Fla., 399 U.S. 78 (1970) and
Apodaca v. Ore., 406 U.S. 404 (1972), the Court majority rejected the
exception to absolute parallelism that had been advanced by Justice
Fortas and chose the “reconsideration route” suggested by the Duncan
majority.
Williams reconsidered earlier rulings that appeared to require
constitutionally the twelve-person jury that traditionally had been used
in federal courts, concluded that the twelve-person size was not critical to
the jury function guaranteed by the Sixth Amendment, and held that a
state’s use of six-person juries in non-capital cases did not violate the
incorporated Sixth Amendment. In Apodoca, eight justices agreed that the
constitutionally of non-unanimous jury verdicts should be resolved in the
same way for both state and federal prosecutions. But on reconsideration
of earlier precedent mandating unanimous verdicts in federal trials, the
eight divided equally on whether the Sixth Amendment required
unanimity, with four justices concluding that the state’s acceptance of 10–
2 verdicts was constitutionally acceptable. The deciding vote was cast by
Justice Powell, who accepted Justice Fortas’ earlier suggestion as to nonincorporation of constitutional rulings dealing with matters of
“administration,” and concluded that the 10–2 verdict was acceptable
under the Sixth Amendment as applied to the states, but would not be
acceptable in the application of the Sixth Amendment to a federal
prosecution. As the Court noted in McDonald v. City of Chicago, 130 S.Ct.
3020 (2010), Apodoca creates the sole exception to the “general rule”
that “incorporated Bill of Right protections are all to be enforced against
the States under the Fourteenth Amendment according to the same
standards that protect those personal rights against federal
encroachment.”
Although the constitutional standards remain the same, the Supreme
Court retains the authority to impose more rigorous requirements upon
the federal system in the exercise of what it has characterized as its
“supervisory authority over the administration of justice in the federal
courts” U.S. v. Hasting, 461 U.S. 499 (1983). That authority has most
prominently been used to fashion judicial remedies for actions of federal
officials that violate statutory duties, see e.g., McNabb v. U.S., 318 U.S. 332
(1943) (§ 4.1(b)), but it also is available to protect the integrity of federal
judicial proceedings. Thus, in several cases, after concluding that certain
procedures or prohibitions were not constitutionally mandated (and
therefore not required of the state), the Court relied on its supervisory
power to impose that requirement on federal courts. See e.g., RosalesLopez v. U.S., 451 U.S. 182 (1981) (requiring voir dire questioning beyond
what is constitutionally mandated).
The Court has noted, however, that federal appellate courts, which also
possess this supervisory authority, may not use it simply because they
view the current interpretation of constitutional requirements as not
sufficiently rigorous to meet desirable procedural goals. See U.S. v.
Payner, 447 U.S. 727 (1980) (lower court could not rely on its
supervisory power to effectively bypass standing requirement (§ 6.8) for
raising Fourth Amendment objections); U.S. v. Hasting, 461 U.S. 499
(1983) (lower court could not rely on supervisory power to reverse a
conviction based on a constitutional violation without regard to the
harmless error doctrine (§ 9.10) ordinarily applied to such violations).
Also, unlike Constitutional rulings, Congress may override rulings based
on the Court’s supervisory authority.
§ 1.3
“FREE-STANDING” DUE PROCESS
(a) Scope
Early fundamental fairness cases recognized that due process could
impose fairness requirements that were not to be found in the
specific guarantees of the Bill of Rights. Indeed, prior to the adoption
of selective incorporation, several of the most significant Supreme
Court rulings invalidating state procedures rested on this concept.
Thus, although an unbiased judge is not mentioned in the specifics of
the Bill of Rights (the Sixth Amendment refers only to an “impartial
jury”), Tumey v. Ohio, 273 U.S. 510 (1927) held lack of judicial bias to
be an essential element of fundamental fairness (and therefore
overturned a state conviction where the trial judge had a pecuniary
interest in having the case result in a conviction rather than an
acquittal).
Once the Court selectively incorporated almost all of the specific
guarantees dealing with criminal procedure, the independent content
of due process came to be known as “free-standing due process” (i.e.,
standing apart from the incorporated guarantees). Notwithstanding
the extensive range of the incorporated guarantees, free-standing due
process plays an important role in the constitutional regulation of
state criminal procedures. Indeed, constitutional requirements
grounded in free-standing-due process extend across all stages of the
criminal justice process, including police investigations (see § 5.4),
pretrial procedures (see §§ 9.2(b), 9.4), adjudication by guilty plea
(see § 9.5), adjudication by trial (see § 9.8(f)), sentencing (see §
9.9(a)), and appeals (see § 9.9(b)).
Many of these free-standing due process standards extend concepts
found in the specific guarantees to procedural settings not covered by
those guarantees. See e.g., § 7.2(a) (due process extension of right to
counsel). Others impose fairness requirements that have no ready
counterpart in the specific guarantees. See e.g., § 9.4(d) (due process
requirements relating to defense access to evidence). Because of their
source in the independent content of due process. the rights
recognized in these rules are sometimes described as the
“unenumerated rights” of due process, in contrast to the incorporated
“enumerates rights” of the Bill of Rights.
(b) Interpretive Standards
The Court in at least the post-incorporation era has offered guidance
on the interpretation of the independent content of due process that
largely urges restraint in developing the content of free-standing due
process. Initially, the Court has noted that, “beyond the specific
guarantees enumerated in the Bill of Rights, the Due Process Clause
has limited operation” and should be construed “very narrowly.”
Dowling v. U.S., 493 U.S. 342 (1990). Since the “Bill of Rights speaks in
explicit terms to many aspects of criminal procedure,” the expansion
of constitutional regulation “under the open-ended rubric of the Due
Process Clause” is said to “invite undue interference with both
considered legislative judgments and the careful balance that the
constitution strikes between liberty and order.” Medina v. Cal., 505
U.S. 437 (1992). So too, giving deference to the “considered expertise
of the states in matters of criminal procedure” is a hallmark of freestanding due process analysis. Thus, the Court has emphasized that “a
state procedure does not run afoul of the Fourteenth Amendment
because another method may seem to our thinking to be fairer or
wiser of give a surer promise of protection.”
In District Attorney’s Office v. Osborne, 557 U.S. 52 (2009) (involving
postconviction access to DNA evidence), the Court added that
deference is especially appropriate where the issue presented relates
to new technology and “the States are currently engaged in serious,
thoughtful examination” as to how the criminal justice process should
be altered in light of that technology. The Court also has stressed that
the focus of free-standing due process should be on the operation of
challenged practice in the individual case, and a practice therefore
should not violate due process unless it conflicts with a procedural
prerequisite for fairness in a manner that actually causes substantial
prejudice. Thus, most free-standing due process rulings (although
certainly not all) require a defense showing of likely prejudice as an
element of the constitutional violation. This stands in contrast to
constitutional violations under specific guarantees, which generally
are established without showing a prejudicial impact, although they
may then be subject to a harmless error analysis. See § 9.10; U.S. v.
Gonzalez-Lopez, 548 U.S. 140 (2006), discussed in § 7.5. The casespecific focus of free-standing due process often leads to rulings that
are tied to the circumstances of the particular case. See e.g., §5.4
(identification procedures). Still other rulings stress the weighing of
multiple factors, rather than setting a bright-line requirement. See
e.g., § 9.4(b) (delay in prosecution). On occasion, however, freestanding due process imposes a bright-line requirement quite similar
to the requirements imposed as to other stages in the process under
an enumerated guarantee. See e.g., § 7.3(h) (indigent’s right to
counsel on first appeal).
(c) Substantive Due Process
The vast majority of free-standing due process rulings deal with
procedural due process. On occasion, a due process challenge will be
directed to an aspect of the criminal justice process as it relates to the
denial of individual liberty standing apart from the fairness of the
process used to convict (i.e., which denies liberty apart from the
imposition of the criminal sanction). The challenge here may relate to
the invasion of bodily integrity, as in Riggins v. Nevada, 504 U.S. 127
(1992), where a defendant objected to being forced to take
antipsychotic drugs during his trial. It may relate to burdens that
follow from prosecution, as in Albright v. Oliver, 510 U.S. 266 (1994),
where the defendant claimed that the state brought charges (later
dismissed) based on evidence known to be unreliable. Substantive
due process claims face special obstacles. Initially, the individual
must show that the aspect of liberty being diminished or lost is a
protected liberty interests under the constitution or state law.
Secondly, the Court has suggested that standard for finding a
violation of due process is especially rigorous. In some instances, the
Court has asked whether the practice challenged is so egregiously
abusive as to “shock the conscience,” a standard first formulated in
the stomach-pumping case, Rochin v. Cal., 342 U.S. 165 (1952), (see §
6.2(c)). Other substantive due process cases, involving different types
of liberty, have looked to whether the practice is clearly unacceptable
under a historically recognized prohibition. Finally, substantive due
process may not be utilized when a “more-specific-provision” is
available. Graham v. Connor, 490 U.S. 386 (1989). Where one of the
specific constitutional guarantees (e.g., the Fourth Amendment) deals
with the general type of conduct at issue, the challenge must be
analyzed under that provision, and if no violation is found there,
substantive due process cannot be employed to expand constitutional
protections.
§ 1.4 GUIDEPOSTS FOR CONSTITUTIONAL INTERPRETATION
A variety of interpretive guideposts have influenced Supreme Court
rulings applying constitutional guarantees to the criminal justice
process. Some of those guideposts—such as the language of the
guarantee and the history underlying the guarantee—are staples of
all constitutional interpretation. Our focus here is on guideposts that
have been advanced as having a special relevance to the criminal
justice process. The justices over the years have been divided as to
the appropriateness of these guideposts. Also, those justices
accepting a particular guidepost very often have differed as to how
much weight should be given to that guidepost when it contradicts
other relevant considerations. Thus, although all of these guideposts
appear to have played an important role in shaping the Court’s
criminal procedure decisions, at one time or another, their influence
has varied (and presumably will continue to vary) with changes in
the composition of the Court.
(a) Text
Supreme Court rulings on constitutional criminal procedure
relatively infrequently rely on the “plain meaning” of the
provision being applied. Challenges to procedures clearly
prohibited, or clearly not prohibited, by the language of a
guarantee do not present the difficult issues that merit the
Supreme Court’s attention. Still, the language of the guarantee in
question will often be cited as pointing in a particular direction,
which is then confirmed by some other guidepost (typically
originalism). So too, the language is often cited as imposing a
general limitation upon the reach of the guarantee, if not
identifying the specific scope. Thus, the rights of the Sixth
Amendment are limited to the “accused” in a “criminal
prosecution” and while those terms are hardly unambiguous, the
Court views them as clearly excluding certain situations. See e.g., §
7.2(d) (counsel on appeal). So too, the Court has noted with
respect to the self-incrimination clause: “We cannot cut the Fifth
Amendment completely loose from the moorings of its language,
and make it serve as a general protection of privacy, a word not
mentioned in its text and a concept directly addressed in the
Fourth Amendment. * * *[T]he Fifth Amendment protects against
‘compelled self-incrimination, not the (disclosure of) private
information.’ ” Fisher v. U.S., 425 U.S. 391 (1976) (see § 8.3(e)).
(b) Giving priority to reliability guarantees
Over the years, various justices have maintained that a higher
priority should be given to those procedural guarantees that serve
primarily to ensure factfinding reliability, with a special emphasis
on avoiding the erroneous conviction of the innocent. Such
justices tend to be much more willing to give a broad reading to
those guarantees that seek to achieve factfinding accuracy, as
opposed to guarantees that serve other interests (e.g., the
protection of privacy under the Fourth Amendment or the
recognition of individual dignity in the Fifth Amendment’s selfincrimination clause). Of course, certain constitutional guarantees
serve both to promote accuracy and to protect other interests as
well. In such cases, justices arguing that factfinding reliability
should receive higher priority may be willing to extend the scope
of the guarantee only insofar as it achieves the reliability
objective. Thus, they would refuse to apply the self-incrimination
privilege to bar most police interrogation, but would extend the
policies of the privilege to exclude from evidence potentially
unreliable confessions obtained through interrogation so abusive
as to encourage false admissions of guilt. Similarly, the double
jeopardy protection against reprosecution following an acquittal
would be given a more expansive interpretation than the double
jeopardy protection against multiple punishment for the
commission of a single offense.
Other justices have flatly rejected treating more favorably those
guarantees that seek to ensure factfinding accuracy. They argue
that all constitutional guarantees should be treated alike and
extensive relief should be available for any constitutional
violation. They acknowledge that some remedies afforded for
violations of guarantees protecting other interests (such as the
exclusion of evidence obtained through a Fourth Amendment
violation) often operate to protect the “guilty,” but they note that
those remedies also serve the interests of society as a whole. They
also contend that attempts to separate the different interests
protected by a single guarantee produce uneven interpretations
of the guarantee that only serve to undermine the Court’s
authority. Expansive protection of all guarantees is essential, in
their view, to ensure respect for the place of the Constitution in
regulating the criminal justice process. The significance of the
position that favors truthfinding guarantees has varied with the
composition of the Court and the nature of the issue being
considered. That position may well have had considerable
influence in the initial development of the “fundamental fairness”
standard of due process. In the post-incorporationist era, its
greatest influence arguably has been in determining the
appropriate scope of remedial measures, with the broader
remedies available for guarantees central to factfinding accuracy.
Such influence is seen, for example, in Teague v. Lane, 489 U.S.
288 (1989), where the Court created a fact-finding reliability
exception to the general rule limiting the retroactive application
of new constitutional rulings on habeas review. Similarly, in
restricting the reach of the exclusionary rule, which bars use of
evidence obtained in violation of the Fourth Amendment, the
Court frequently has stressed that this remedy impairs
truthfinding by excluding reliable evidence. See § 6.5(c)–(g); §
6.7(a). On the other hand, majority opinions defining the
substantive content of guarantees that impede accurate
factfinding have very rarely expressed concern as to that impact,
and certainly have not expressed the view that such guarantees
should therefore be narrowly construed.
(b) Original meaning
Originalism has a long-standing role in the interpretation of the
criminal procedure guarantees, which has increased in
prominence over the last few decades (particularly since Justices
Scalia and Thomas were added to the Court). One aspect of
originalism that has divided the Court in recent years is the choice
of the appropriate level of generality at which the guarantee’s
original design should be understood. That choice has particular
significance in two settings: (1) where the founding generation
viewed a guarantee as aimed at prohibiting a particular
procedural practice and the modern day procedure being
challenged is deemed analogous to that prohibited practice; and
(2) where the modern day procedure being challenged is identical
to, or analogous to, a procedure known to the founding generation
and thought not to be prohibited by the particular guarantee.
In the former situation, a justice tending to stress the general
purposes of the guarantee, as opposed to a specific historical
application, may tend not to find an analogy to a historically
prohibited practice where a strict “originalist” would do so.
Differences in the current procedural setting may suggest that the
values at stake are not the same as those that required rejection of
the prohibited practice. An analysis of the general purpose of the
guarantee may produce the conclusion that the historical
prohibition was founded on concerns of the common law rather
than the constitutional guarantee. But where justices are in
agreement as to the character of the original prohibition and the
similarity of the modern procedural counterpart, that counterpart will be rejected by both justices favoring “loose” and “strict”
originalism. The division tends to be stronger in evaluating
historic acceptance of the challenged practice. The Court has
made clear that the sanction of settled historical usage is not a
shield against constitutional attack. See Williams v. Ill., 399 U.S.
235 (1970) (“neither the antiquity of a practice nor the fact of
steadfast legislative and judicial adherence to it through the
centuries insulates it from constitutional attack”). On the other
hand, it also has repeatedly treated the sanction of history as a
strong indicator of constitutionality. The critical division among
the justice’s has centered on what circumstance justify finding a
practice unconstitutional notwithstanding that sanction.
Is historical acceptance readily discounted where the practice in question is
contrary to what the Court now views as the overriding function of the
constitutional provision at issue? In some cases, that view has prevailed, particularly
as to “open-ended” constitutional standards (e.g., the “reasonableness” requirement
of the Fourth Amendment). See e.g., Payton v. N.Y., 445 U.S. 573 (1980) (§ 2.7(a))
(such a guarantee should not be read as having “frozen into constitutional law * * *
those practices that existed at the time of the [guarantee’s] adoption”). Yet, in other
instances, sometimes involving the same type of guarantee, the Court majority has
rejected such an analysis. See e.g., U.S. v. Watson, 423 U.S. 411 (1976) (upholding
police authority to make arrests in public without warrants, notwithstanding ample
opportunity to obtain a warrant prior to the arrest). The Court majority here
reasoned that the historical acceptance of a practice seemingly inconsistent with the
function of a guarantee indicates that the purpose of the guarantee was more
limited than what a logical extension of that function might suggest. The assumed
“logic” of the guarantee “must defer to history and experience,” U.S. v. Watson, 423
U.S. 411 (1976) (Powell, J., con.), as the Court must recognize that, in determining
the intended purpose of many guarantees, “a page of history is worth a volume of
logic,” Ullmann v. U.S., 350 U.S. 422 (1956) (Frankfurter, J., con.).
Changed circumstances can readily alter the impact of an historically accepted
practice and thereby deprive historical acceptance of much of its weight. However,
with so many institutional differences between the revolutionary-era criminal
process and the modern criminal process, strict originalists are wary of the
changed-circumstances argument. Still, there is general agreement that “sweeping
change in the legal and technological context” can render reliance on historical
acceptance “a mistaken literalism that requires the purposes of a historical inquiry.”
Tenn. v. Garner, 471 U.S. 1 (1985) (police use of deadly force against fleeing felons,
though allowed at common law, must be assessed today in light of the greatly
expanded grouping of crimes classified as felonies, the greatly restricted
authorization of death penalty sentences for felonies, and the greatly increased
capacity, via handguns, for police officers to use deadly force in situations posing no
threat to their personal safety).
(c) The use of per se rules
In many settings the Supreme Court has viewed the constitutional question at issue
as naturally calling for what might be described as a “categorical” or “definitional”
standard—i.e., a standard that looks to a single characteristic or event and does not
adjust to the uniqueness of each case. Such standards are imposed, for example, in
determining when jeopardy attaches and what constitutes the minimum acceptable
size for a jury. In other settings, the Court has viewed the constitutional question at
issue as calling for a standard requiring a fact sensitive judgment geared to a variety
of circumstances that differ with each case. Such standards are applied, for example,
in determining whether the police had the probable cause needed to obtain a search
warrant or whether a defense lawyer’s performance was so deficient as to deny
defendant the effective assistance of counsel. In still other settings, the Court has
concluded that, while the question at issue generally calls for a case-by-case
balancing of a variety of circumstances, administrative concerns justify imposing a
“per se” or “bright-line” test which finds a particular action to be constitutional or
unconstitutional based on a single event or characteristic. The per se standard is
similar in formulation to the usual categorical standard, but its grounding is
different. The Court is not saying that the function of the applicable constitutional
guarantee necessarily requires such a bright-line. Indeed, the Court is
acknowledging that its per se standard is either overinclusive or underinclusive as
compared to the application of that function to all relevant circumstances on a caseby-case basis. Nonetheless, practical considerations relevant to administration of
the Court’s ruling have convinced the Court of the need to adopt a shorthand
generalization in the form of a per se rule even though the function of the guarantee
might point to the ad hoc application of a totality-of-the-circumstances analysis.
Illustrative are Pa. v. Mimms, 434 U.S. 106 (1977) (police may order driver of
stopped vehicle to get out of the car without regard to the circumstances of the stop
or the behavior of the driver) and Turner v. Murray, 476 U.S. 28 (1986) (“because
the risk of racial prejudice infecting a capital sentencing proceeding is especially
serious in light of the complete finality of the death penalty,” a capital defendant
accused of an interracial crime is entitled automatically to voir dire questioning on
racial issues “inextricably bound up with the conduct of the trial”). Though per se
rules are often associated with the adoption of expansive interpretations of
procedural safeguards, that is not necessarily the case.
Thus, ensuring officer safety or preventing the potential arrestee’s destruction of
evidence may allow searches that otherwise would be allowed only where the
circumstances suggest that the individual was in possession of evidence or a
weapon. See U.S. v. Robinson, 414 U.S. 218 (1973), discussed in § 2.6 (b). While the
Court has utilized per se standards in various settings, it also has rejected adoption
of such standards in other settings viewed as similar by at least some members of
the Court. See e.g., U.S. v. Dunn, 480 U.S. 294 (1987) (refusing to adopt a “bright-line
rule” that the Fourth Amendment protected area of a dwelling’s “curtilage” would
“extend no farther than the nearest fence surrounding a fenced house,” and instead
allowing for consideration of indicia of privacy that could on occasion encompass
structures lying outside the fenced area); Ristaino v. Ross, 424 U.S. 589 (1976)
(rejecting as to noncapital cases an automatic entitlement to voir dire questioning
on racial bias where the crime is interracial, as determining the presence of a
“constitutionally significant likelihood” of juror bias, justifyingvoir dire questioning,
requires an evaluation of “all of the circumstances” presented by the case). As might
be surmised from such disagreements, the Court has not been able to develop a
bright-line rule as to when administrative concerns will or will not justify adoption
of an administratively based per se standard. Factors of obvious relevance include:
(1) the extent to which such a standard will be overinclusive or under inclusive as
compared to a case-by-case analysis; (2) whether the constitutional regulation deals
with decisions made by “front line” players (e.g., police officers) who have limited
time and expertise and therefore would have difficulty applying the “subtle
nuances” and “hairline distinctions” of a standard geared to a variety of
circumstances; (3) whether the failure to provide a clear direction to officials bound
by the standard invites abuse by those officials in the form of fabricated testimony
as to relevant circumstances; and (4) the significant adjudicatory burdens that
would be placed upon trial courts, and the special problems those courts would face,
if required to assess certain types of factors (e.g., the motive of the official involved).
Although all of the above factors have been cited by the Court in majority opinions,
the justices have disagreed as to the weight to be given to particular factors. Indeed,
some justices have viewed only the first factor as critical, and would adopt per se
rules only when the bright line rule provides close to a perfect fit to the result that
would follow from a case-by-case analysis. Also, even where the justices agree that a
particular factor (e.g., the ineffectiveness of case-by-case adjudication) is relevant,
they may well view differently the practical impact of that factor. See e.g., Smith v.
Phillips, 455 U.S. 209 (1982) (disagreement as to trial court’s capacity to determine
through juror questioning whether the juror was biased as a result of a particular
interaction with the prosecutor).
(d) The use of prophylactic requirements
The Supreme Court has described only a handful of its criminal procedure rulings as
imposing “prophylactic” requirements, yet that characterization has been the source
of considerable controversy, extending beyond the significance of the rulings so
characterized. Undoubtedly, the most prominent of the opinions characterized as
prophylactic is Miranda v. Ariz., 384 U.S. 436 (1966) (§ 4.4), where the Court
required that the police give various warnings to an interrogated suspect in order to
ensure that he was not compelled by the interrogation to incriminate himself. Other
prophylactic rulings include N.C. v. Pearce, 395 U.S. 711 (1969) (§ 9.9(b)) (requiring
a judge who imposes a higher sentence on retrial to set forth the reasons for the
higher sentence and to rely on justifications that will ensure that the higher
sentence is not vindictive), and Anders v. Cal., 386 U.S. 738 (1967) (§ 7.3(h))
(prescribing procedures that must be followed by appointed appellate counsel in
withdrawing from a case in order to ensure that such withdrawals are limited to
“wholly frivolous” appeals).
The Court has emphasized two characteristics in explaining why a particular
decision imposed a “prophylactic rule.” First, the rule is prophylactic in the sense
that it seeks to safeguard against a constitutional violation, typically by imposing
procedural requirements designed to provide a protective shield for the underlying
constitutional right. Secondly, the prophylactic rule is grounded not on the
conclusion that its violation invariably produces a denial of the underlying
constitutional right, but on the Court’s exercise of its authority to craft remedies
and procedures that facilitate its adjudication responsibilities. Two important
consequences, the Court has noted, follow from this second prong grounding: (1)
since prophylactic rules may be violated without necessarily denying the underlying
constitutional right, violations of prophylactic rules may be given remedial
consequences narrower in range than the consequences which would follow from
direct violations of the underlying right (see e.g., §§ 6.6(g), 6.7(b), 8.1(e)): and (2)
the legislature may eliminate the need for the prophylactic protection added by the
Court’s ruling by replacing its prophylactic requirements with alternative
safeguards that are equally effective. Some justices have challenged the Court’s
authority to impose prophylactic safeguards. Here, they argue, by prescribing
additional procedures solely as a prophylaxis, the Court engages in “pure
legislation.” N.C. v. Pearce, supra (Black, J., dis.). However, Dickerson v. U.S., 530 U.S.
428 (2000) (§ 4.5(d)), flatly rejected the contention that the Miranda ruling lacked a
constitutional grounding, and described that ruling as similar in function to a
traditional per se standard (the Miranda requirements simply responded to the
“unacceptably great” risk of “overlooking involuntary confessions” when
admissibility was tested only by the ad hoc “coerced confessions” standard). The
Dickerson opinion failed, however, to explain why Miranda and certain other rulings
had been separately characterized as “prophylactic,” thereby suggesting that the
Court majority was divided on that question. Chavez v. Martinez, 538 U.S. 760
(2003), later revealed that division.
There, the eight justices commenting on the special character of the Miranda ruling
offered quite different characterizations. Four justices utilized the traditional
“prophylactic” characterization, and placed in that category, along with Miranda,
several earlier rulings dealing with self-incrimination (see § 8.3(b)); two justices
described the same group of rulings as establishing “law * * * outside the Fifth
Amendment’s core, with each case expressing a judgment that the core guarantee,
or the judicial capacity to protect it, would be placed at some risk in the absence of
such complementary protection”; two justices placed Miranda alone in such a
special category, describing it as a constitutional measure adopted to “reduce the
risk of a coerced confession and to implement the self incrimination clause.” Though
Chavez indicated that the Court majority continues to accept the constitutional
legitimacy of the distinctive grounding (and distinctive remedial treatment) of the
rulings that have been characterized as “prophylactic,” it did not suggest any strong
inclination to make use of that grounding in future rulings. In the later case of
Montejo v. La., 556 U.S. 779 (2001), the Court overruled the prophylactic prohibition
of Mich. v. Jackson (prohibiting police-initiated questioning where the defendant
requested appointment of counsel at a first appearance). It did not, however,
express hostility toward prophylactic prohibitions as such. Rather, the key was
balancing benefits against costs and the Jackson prophylactic rule provided only
“marginal” additional protection against possibly missing an involuntary waiver, as
Edwards v. Ariz, 451 U.S. 477 (1981) provided ample protection through a separate
prophylactic rule applicable to all interrogations after an assertion of rights. See §§
4.3(f), 4.9(c).
(e) Administrative burdens
The more expansive a constitutional requirement, the more likely that it will
impose a substantial burden upon the administration of the criminal justice process.
That burden can take various forms, including increased expenses for an already
underfunded system, additional hearings for already congested court dockets, and
perhaps even insurmountable obstacles to the solution of some crimes. The extent
to which such “practical costs” should be considered by the Court has been a matter
of continuing debate among the justices. The clash of viewpoints on this issue is
most often found in the fashioning of standards (particularly per se standards)
under the more open-ended procedural guarantees (e.g., the due process clause),
and in the application of the more concrete guarantees to new settings. Thus, the
Court has noted that where the text or history of a particular provision produces a
“constitutional command that * * * is unequivocal,” the practical costs incurred in
applying that command become irrelevant. Payton v. N.Y., 445 U.S. 573 (1980). The
command itself strikes a balance between the rights of the accused and society’s
need for effective enforcement of the criminal law, and the Court is bound to accept
that balance.
Where the application of a guarantee is acknowledged to be less than clear, justices
generally have taken positions that fall within a wide-ranging continuum as to the
appropriate concern for practical costs. At one end of the continuum are justices
who believe that administrative burdens should never be considered in reaching a
result, or should be considered only where there is considerable doubt that the
proposed standard would be more effective in protecting constitutional rights than
a less burdensome standard. At the other end are justices who believe that, where
the burden imposed would be great, the court should extend the guarantee only if
the particular extension is absolutely essential to fulfilling the function of the
guarantee. In between are justices who give practical costs varying weight
depending upon a variety of circumstances. They will look to such factors as
whether the burden will be substantial and clear (asking, for example, whether
other jurisdictions have accommodated such a burden under state law standards
similar to the proposed constitutional standard), whether the burden relates to an
important state interest (thus, perhaps giving less weight to a mere increase in the
state’s financial costs than to an increase in the inconvenience to witnesses), and
whether the burden can be offset by other measures (e.g., police use of more
advanced technology). Very often differences in perspective are reflected not only as
to the weighing of the administrative burden but also in the justices’ evaluation of
the likely scope of the burden. Thus, in Miranda, though looking at the same data,
the majority concluded that its decision would “not in any way preclude police from
carrying out their traditional investigatory role” and thus “should not constitute an
undue interference with a proper system of law enforcement,” while one dissenter
(Harlan, J.) found that the Court was taking “a real risk with society’s welfare” and
another (White, J.) concluded that the Court’s ruling would “measurably weaken”
the enforcement of the criminal law and result in an inability to prosecute
successfully a “good many criminal defendants.”
CHAPTER 2
ARREST, SEARCH AND SEIZURE
§ 2.1
INTRODUCTION
(a) The Fourth Amendment
The Fourth Amendment to the U.S. Constitution reads: “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.” The Amendment is applicable to
the states through the due process clause of the Fourteenth Amendment (see §
6.3(a)), but on both the federal and state levels governs only conduct by agents of
the government (police, other government employees, and private persons acting at
the direction or request of government officials). Burdeau v. McDowell, 256 U.S. 465
(1921).
The same standards of reasonableness and probable cause govern both federal and
state activities. Ker v. Cal., 374 U.S. 23 (1963); Aguilar v. Tex., 378 U.S. 108 (1964). A
plurality of the Court concluded in U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990)
that the word “people” in the Amendment covers only members of our “national
community” and not nonresident aliens, so that the Amendment is inapplicable to
the search of such a person’s Mexican residence. (Perhaps the three dissenters,
together with the two concurring Justices who instead stressed the inapplicability of
the Amendment’s warrant clause to foreign searches, would have produced a
different result had the objection been not lack of a warrant but absence of probable
cause.) Subject to the Leon or “good faith” exception (see § 6.4), direct and
derivative evidence (see § 6.6) obtained in violation of the Fourth Amendment by
police or by some but not all other government officials (see § 2.11(f)) is subject to
exclusion in state, Mapp v. Ohio, 367 U.S. 643 (1961), as well as federal, Weeks v.
U.S., 232 U.S. 383 (1914), criminal cases (regarding other proceedings, see § 6.5)), if
the defendant has standing to object (see § 6.8).
(b) Seizure of the person
Because of the exclusionary sanction, the Fourth Amendment is more commonly
thought of as a limitation on the power of police to search for and seize evidence,
instrumentalities, and fruits of crime. However, an illegal arrest or other
unreasonable seizure of the person is itself a violation of the Fourth and Fourteenth
Amendments, Terry v. Ohio, 392 U.S. 1 (1968); Henry v. U.S., 361 U.S. 98 (1959),
although it is no defense to a state or federal criminal prosecution that the
defendant was illegally arrested or forcibly brought within the jurisdiction of the
court, Frisbie v. Collins, 342 U.S. 519 (1952), except perhaps when the
circumstances are particularly shocking. (Even abduction of the defendant in lieu of
resort to an extradition treaty is no bar to prosecution when the treaty does not
provide otherwise. U.S. v. Alvarez-Machain, 504 U.S. 655 (1992).)
Whether an arrest or other seizure of the person conforms to the requirements of
the Constitution is nonetheless frequently a matter of practical importance. The
police are authorized to conduct a limited search without warrant incident to a
lawful arrest (see §§ 2.6(b), 2.7(c), 2.8(a)), and thus the admissibility of physical
evidence acquired in this way depends upon the validity of the arrest. The same is
true of certain other evidentiary “fruits” obtained subsequent to and as a
consequence of the arrest (see § 6.6(e)).
(c) The major issues
Several Fourth Amendment issues of current significance are surveyed in this
Chapter. Consideration is first given to the areas and interests protected by the
Amendment (see § 2.2), for they determine what constitutes a “search” and thus
what activities are subject to the requirements of the Amendment. The most
pervasive requirement of the Amendment is that of “probable cause,” needed for
lawful arrests and searches both with and without warrant, and special attention is
therefore given to the meaning and significance of this quantum-of-evidence
standard (see § 2.3). Other constitutional requirements for obtaining physical
evidence by search warrant (see §§ 2.4, 2.5), without a warrant (see §§ 2.6, 2.7, 2.8),
and with consent (see § 2.12) are separately considered. Finally, to illustrate the
flexibility of the Fourth Amendment limitations, this Chapter also covers some
unique practices for which separate rules have been developed because of the
limited intrusion or special need attending their use: brief detentions for purposes
of investigation (see § 2.9); grand jury subpoenas (see § 2.10); and inspections and
regulatory searches (see § 2.11). § 2.2
PROTECTED AREAS AND INTERESTS
(a) Property interests vs. privacy interests
What is a search under the Fourth Amendment? The traditional approach was to
speak of intrusion into certain “constitutionally protected areas,” in that the Fourth
Amendment protects the “right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.” This property
approach was rejected in Katz v. U.S., 389 U.S. 347 (1967), in favor of a privacy
approach (although in more recent times the Court has sometimes returned to the
property approach; see U.S. v. Jones, 132 S.Ct. 945 (2012), § 2.2(h), and Fla. v.
Jardines, 133 S.Ct. 1409 (2013), § 2.2(c)). In concluding that a nontrespassory
eavesdropping into a public telephone booth constituted a search, the Court
declined to characterize the booth as a “constitutionally protected area”: “For the
Fourth Amendment protects people, not places. What a person knowingly exposes
to the public, even in his own home or office, is not a subject of Fourth Amendment
protection * * *. But what he seeks to preserve as private, even in an area accessible
to the public, may be constitutionally protected.”
The majority opinion in Katz does not elaborate upon the privacy approach, except
for the helpful observation that defendant’s activities were protected because the
government intrusion “violated the privacy upon which he justifiably relied.” Justice
Harlan’s oft-quoted concurrence suggested a “two-fold requirement: first, that a
person have exhibited an actual (subjective) expectation of privacy; and, second,
that the expectation be one that society is prepared to recognize as ‘reasonable.’ ”
(But later, dissenting in U.S. v. White, 401 U.S. 745 (1971), he cautioned against
undue emphasis upon actual expectations, which “are in large part reflections” of
what the law permits.) He also noted, quite correctly, that in asking what protection
the Fourth Amendment affords people (i.e., where an expectation of privacy is
reasonable), it is generally necessary to answer with reference to a place, so that
many of the earlier property-based decisions are not disturbed by Katz. The Fourth
Amendment proscription on unreasonable “searches and seizures” extends not only
to cases involving both a search and a related seizure, but also to those in which
either a search or a seizure has occurred alone. Soldal v. Cook County, 506 U.S. 56
(1992). While the “searches” part of the Amendment has to do mainly with the
privacy interest, as in Katz, the “seizures” part concerns the interests in possession
of property and liberty of person. See U.S. v. Place, 462 U.S. 696 (1983) (detention
of traveler’s luggage 90 minutes an unreasonable deprivation of defendant’s
“possessory interest in his luggage” and his “liberty interest in proceeding with his
itinerary”).
(b) Plain view, smell and hearing
It is not a search under Katz for an officer, lawfully present at a certain location, to
detect something by one of his natural senses (e.g., to hear “by the naked ear”
conversation in adjoining motel room). But, while “plain touch” has been analogized
to plain view for some purposes, ordinarily the touching will itself constitute search
activity for which a justification must be shown. Minn. v. Dickerson, 508 U.S. 366
(1993). Because physically invasive inspection is more intrusive than a purely
visual inspection, the squeezing of a bus passenger’s luggage in the overhead rack,
resulting in discovery of a brick-shaped object within, constitutes a search, as a bus
passenger justifiably expects other passengers or bus employees to “move” or
“handle” his bag but not to “feel the bag in an exploratory manner.” Bond v. U.S.,
529 U.S. 334 (2000).
It is ordinarily no search when common means of enhancing the senses, such as a
flashlight or binoculars, are used. U.S. v. Dunn, 480 U.S. 294 (1987); U.S. v. Lee, 274
U.S. 559 (1927). But the use of such devices in particular circumstances may be so
highly intrusive as to justify the conclusion that a search has occurred, as where a
highpowered telescope is used to determine from a distance of a quarter mile the
contents of papers being read in a high-rise apartment. In holding aerial
photography of the outdoor areas of an industrial complex was no search although
objects as small as half-inch pipes were detected, the Court in Dow Chem. Co. v. U.S.,
476 U.S. 227 (1986) intimated the result might be different if (1) the place of
surveillance had been “an area immediately adjacent to a private home, where
privacy expectations are most heightened,” (2) “any identifiable human faces or
secret documents [were] captured in such a fashion,” or (3) the surveillance
involved “highly sophisticated surveillance not generally available to the public.”
Also, it is a search to utilize other sophisticated means, such as an x-ray machine or
magnetometer. But use of a drug dog to detect narcotics in a suitcase is no search
because, unlike any other investigative procedure, it “discloses only the presence or
absence of * * * a contraband item” and “does not expose noncontraband items that
otherwise would remain hidden from public view.” U.S. v. Place, 462 U.S. 696
(1983), applied to a dog sniff of a lawfully stopped car in Ill. v. Caballes, 543 U.S. 405
(2005). By similar reasoning, it was held in U.S. v. Jacobsen, 466 U.S. 109 (1984)
that field testing of a white powder uncovered by a private search was no search, as
it would only reveal whether the powder was an illegal substance. Sometimes even
police action in opening a package will be treated like a plain view situation on the
ground that the opening did not intrude upon any reasonable expectation of
privacy. This is so as to containers whose “contents can be inferred from their
outward appearance,” such as a gun case, Ark. v. Sanders, 442 U.S. 753 (1979), as to
reopening of a package promptly after controlled delivery following an earlier
lawful government inspection of the package’s contents, Ill. v. Andreas, 463 U.S. 765
(1983); or reopening a package after the private person who summoned police had
opened the package to the same extent but then closed it, U.S. v. Jacobsen, 466 U.S.
109 (1984).
While the characterization of an observation as a nonsearch plain view situation
settles the lawfulness of the observation itself, it does not inevitably follow that a
warrantless seizure of the observed object would be lawful. As explained in Ill. v.
Andreas, 463 U.S. 765 (1983), the plain view doctrine “authorizes seizure of illegal
or evidentiary items visible to a police officer” only if the officer’s “access to the
object” itself has a “Fourth Amendment justification.” Thus, if an officer standing on
the public way is able to look through the window of a private residence and see
contraband, he must except in exigent circumstances obtain a warrant before
entering those premises to seize the contraband.
(c) Residential premises
Even entry and examination of residential premises is not a search if those
premises have been abandoned. Abel v. U.S., 362 U.S. 217 (1960). Consistent with
Katz, the proper test for abandonment in this context is not whether all formal
property rights have been relinquished, but whether the complaining party retains
a reasonable expectation of privacy in the place allegedly abandoned. Except for a
hotel or motel guest, such an expectation may exist even after the rental period has
expired if the tenant has not yet departed. As for premises not abandoned, it is a
search for an officer to make an uninvited entry into even the hallway of a singlefamily dwelling, but the result is otherwise if the entry is into the common hallway
of an apartment building. In the latter instance, some courts reach a contrary result
if the building is sufficiently secured so that even common areas are not accessible
to the general public.
Looking in or listening at a residence or other structure within the curtilage is no
search if the officer uses his natural senses and is positioned on nearby public
property, on the adjacent property of a neighbor, or on part of the curtilage of the
premises being observed that is the normal means of access to and egress from the
house. As for reliance upon sense-enhancing devices, the Court in Kyllo v. U.S., 533
U.S. 27 (2001) held that the use there of a thermal imager, which without sending
rays or beams into premises determines the amount of heat emanating therefrom
by measuring differences in surface temperatures of targeted objects, constituted a
search. Stating a more particularized version of the Katz test for this genre of cases,
the Court declared “that obtaining by sense-enhancing technology any information
regarding the interior of the home that could not otherwise have been obtained
without physical ‘intrusion into a constitutionally protected area’ constitutes a
search where (as here) the technology in question is not in general public use.”
As for entry of the curtilage (an area to be ascertained on a case-by-case basis “with
particular reference to four factors: the proximity of the area claimed to be
curtilage to the home, whether the area is included within an enclosure
surrounding the home, the nature of the uses to which the area is put, and other
steps taken by the resident to protect the area from observation by people passing
by,” U.S. v. Dunn, 480 U.S. 294 (1987)), the question under Katz is whether the
conduct intrudes upon a justified expectation of privacy. But in Fla. v. Jardines, 133
S.Ct. 1409 (2013) (holding that a drug-dog’s detection of marijuana inside
defendant’s residence by sniffing at his front door was a search), the Court opted
for a “property-rights” approach under which the question is whether there has
been “an unlicensed physical intrusion.” The Court stated a householder’s “implicit
license” to potential visitors could be exceeded in three ways: (i) violating the
spatial limitation by failing to “approach the home by the front path”; (ii) violating
the temporal limitation by failing to act “promptly * * * absent invitation to linger
longer”; (iii) violating the purpose limitation, deemed the case in Jardines because
the police purpose there was “to conduct a search.” Given the circularity of the
latter proposition, it may be that the broader statements of purpose by the Court—
“to gather evidence” or “to gather information”—are what counts, though the four
dissenters in Jardines complained that such a statement of purpose would bestow
the “search” characterization on any on-curtilage police discovery of evidence, even
by their natural senses.
Mere looking into these lands from adjacent property will seldom constitute a
search, though some courts deem this a search under Katz if the viewing can be
accomplished only by most extraordinary efforts unlikely to be utilized by any
curious passerby. In Cal. v. Ciraolo, 476 U.S. 207 (1986), the Court held viewing
from a plane in public navigable airspace was no search because “any member of
the public flying in this airspace who glanced down would have seen everything
that these officers observed.” Ciraolo was followed in Fla. v. Riley, 488 U.S. 445
(1989), involving a helicopter hovering at 400 ft., but the Court cautioned flights
could be so rare at some lower level, albeit within navigable air space, as to
constitute a search.
(d) Other premises and places
Before Katz, the protections of the Fourth Amendment were “not extended to the
open fields,” Hester v. U.S., 265 U.S. 57 (1924), typically viewed as all lands not
falling within the curtilage. Hester was reaffirmed in Oliver v. U.S., 466 U.S. 170
(1984), where the Court reasoned that such places were not covered by the Fourth
Amendment’s “persons, houses, papers, and effects” language, and that a case-bycase assessment of the privacy expectation in such areas (e.g., that in Oliver the 52
land was fenced, locked and posted with “No Trespassing” signs) would make it too
“difficult for the policeman to discern the scope of his authority.” In U.S. v. Dunn,
480 U.S. 294 (1987) the Court assumed that a justified expectation of privacy could
exist as to a barn outside the curtilage, so that entry of it would be a search, but held
it was no search merely to look into the barn from an open field vantage point.
Though the Fourth Amendment mentions only “houses,” offices, stores and other
commercial premises are also protected. See v. City of Seattle, 387 U.S. 541 (1967).
Whether a particular investigative practice directed at such a place is a search often
involves considerations similar to those discussed above as to residences, though
it is no search for an officer to enter where and when there is an implied invitation
for customers to come in. Md. v. Macon, 472 U.S. 463 (1985). Even if certain
business premises are generally open to the public, surveillance into private areas
therein, such as fitting rooms and rest rooms, constitutes a search. The outdoor
area of business premises, such as the fenced grounds of an industrial plant, can “be
seen as falling somewhere between ‘open fields’ and curtilage,” so that it is no
search to use sophisticated aerial photography at such a place, even though
physical entry probably would be deemed a search. Dow Chem. Co. v. U.S., 476 U.S.
227 (1986).
(e) Vehicles
It is no search for the police, from a lawful vantage point, to examine the exterior of
a vehicle, Cardwell v. Lewis, 417 U.S. 583 (1974), or to see the contents by looking
through the windows, N.Y. v. Class, 475 U.S. 106 (1986). Entry of the car is a search
under Katz, N.Y. v. Class, 475 U.S. 106 (1986), unless of course the vehicle had been
abandoned in such a way that the user no longer had a reasonable expectation that
the automobile would be free from governmental intrusion.
(f) Personal characteristics
In U.S. v. Dionisio, 410 U.S. 1 (1973), the Court held that requiring a person to give
voice exemplars is no search because “the physical characteristics of a person’s
voice, its tone and manner, as opposed to the content of a specific conversation, are
constantly exposed to the public,” so that “no person can have a reasonable
expectation that others will not know the sound of his voice.” By the same
reasoning the Court ruled in the companion case of U.S. v. Mara, 410 U.S. 19 (1973)
that it is no search to require a person to give handwriting exemplars. The Court
has also referred to fingerprinting as nothing more than obtaining “physical
characteristics * * * constantly exposed to the public.” Cupp v. Murphy, 412 U.S. 291
(1973). But seizing evidence from within the body by taking a blood or urine
sample quite clearly is a search. Schmerber v. Cal., 384 U.S. 757 (1966).
(g) Effects
It has long been accepted that the protections of the Fourth Amendment do not
extend to effects that have been abandoned. Hester v. U.S., 265 U.S. 57 (1924)
(containers thrown into field); Abel v. U.S., 362 U.S. 217 (1960) (items left in waste
basket upon hotel checkout). After Katz, the question is not whether the object has
been abandoned in the property sense, but rather whether the defendant has, in
discarding the property, relinquished his reasonable expectation of privacy as to it.
(See e.g., Smith v. Ohio, 494 U.S. 541 (1990), holding there was no abandonment of
a grocery bag defendant placed on the hood of a car at police order and then
attempted to protect from police inspection.) One has no expectation of privacy as
to “trash left for collection in an area accessible to the public” (e.g., in plastic bags
placed at the curb), as garbage so placed is “readily accessible” to the public;
moreover, the garbage was so placed “for the express purpose of conveying it to a
third party, the trash collector,” who could search it or allow others to do so. Cal. v.
Greenwood, 486 U.S. 35 (1988). Because only the latter reason would apply, it is
unclear what result should obtain where the collector at police request takes the
garbage from well within the curtilage and then turns it over to the police.
In Warden v. Hayden, 387 U.S. 294 (1967), the Court discarded the so-called “mere
evidence” rule, whereunder objects of evidential value only could not be seized
pursuant to a warrant, Gouled v. U.S., 255 U.S. 298 (1921), or incident to arrest, U.S.
v. Lefkowitz, 285 U.S. 452 (1932). This rejection of the distinction between “mere
evidence” and instrumentalities, fruits of crime, and contraband was based upon
the conclusions that (1) nothing in the language of the Fourth Amendment supports
the distinction; (2) privacy is disturbed no more by a search for evidentiary
material than other property; (3) the Fourth Amendment protects privacy rather
than property, so that the defendant’s or the government’s property interest in the
items seized is not relevant; and (4) the distinction had spawned numerous
exceptions and great confusion.
The Court in Hayden was careful to emphasize that “the items of clothing involved
in this case are not ‘testimonial’ or ‘communicative’ in nature, and their
introduction therefore did not compel respondent to become a witness against
himself in violation of the Fifth Amendment.” This led some courts to conclude that
the result would be otherwise if private papers were seized, but that position was
rejected in Andresen v. Md., 427 U.S. 463 (1976). The Court there held that though
the Fifth Amendment privilege against self-incrimination protects a person from
having to produce testimonial documents in response to a subpoena, the privilege
against self-incrimination affords no protection against a search warrant, as when a
warrant is utilized the person in possession has not been compelled to make the
record or to authenticate it by production. The fact that “mere evidence” is being
sought, or that it is being sought from a “third party,” does not limit the manner of
seizure. In Zurcher v. Stanford Daily, 436 U.S. 547 (1978), the respondent, a college
newspaper, argued that, because it had not been a participant in the crime being
investigated, the prosecutor had violated the Fourth and First Amendments by
seeking evidence allegedly in its possession (photographs) through a warrantauthorized search of its offices rather than through a subpoena duces tecum.
Rejecting this claim, the Court noted that nothing in the Fourth Amendment
suggests third parties are entitled to greater protection against searches than
suspects; indeed, a contrary rule would be unworkable in that search warrants are
often obtained when the identity of all those involved in the crime under
investigation is not known. The First Amendment also did not require use of a
subpoena duces tecum instead of a warrant, but only that the Fourth Amendment
requirements be applied with “particular exactitude.”
(h) Surveillance of relationships and movements
The courts have upheld a number of surveillance practices on the questionable
ground that no justified expectation of privacy was infringed because what was
discovered had been revealed in a limited way to a limited group for a limited
purpose. In Smith v. Md., 442 U.S. 735 (1979), for example, police use of a pen
register to record the numbers called on a phone was held to be no search, as the
defendant had conveyed such information to the telephone company equipment
when dialing. By an equally narrow view of the Katz expectation of privacy test, it
has been held that use of a mail cover, recording information on the outside of
incoming mail, is no search. The Court similarly has said that a bank depositor
“takes the risk, in revealing his affairs to [his bank],” that the information will be
conveyed by the bank to police, and thus has no Fourth Amendment protection
against such transfer. U.S. v. Miller, 425 U.S. 435 (1976).
As for use of an electronic tracking device or “beeper” to keep track of an object’s
movements, the mere installation of a “beeper” in an object and its transfer to a
suspect is no search because it “conveyed no information,” and is no seizure
because no one’s possessory interest “was interfered with in a meaningful way.”
U.S. v. Karo, 468 U.S. 705 (1984). Monitoring a beeper to keep track of one’s public
movements, even if visual surveillance would not have been practicable, is no
search, as one “travelling in an automobile on public thoroughfares has no
reasonable expectation of privacy in his movements from one place to another.” U.S.
v. Knotts, 460 U.S. 276 (1983). But “monitoring of a beeper falls within the ambit of
the Fourth Amendment when it reveals information that could not have been
obtained through visual surveillance,” such as that a certain object remains inside
private premises. U.S. v. Karo, 468 U.S. 705 (1984).
However, nearly 30 years later the Court unanimously ruled that the use of a much
more sophisticated GPS tracking device installed on a vehicle’s undercarriage to
closely track its movements over the course of 28 days constituted a search. U.S. v.
Jones, 362 U.S. 257 (2012). Four concurring Justices, distinguishing the “relatively
short-term monitoring” in Knotts, concluded that “the use of longer term GPS
monitoring in investigations of most offenses impinges on expectations of privacy”
where, as here, “for four weeks, law enforcement agents tracked every movement
that respondent made in the vehicle he was driving.” But the 5-Justice majority,
concluding that Katz “did not repudiate” the Fourth Amendment’s concern “for
government trespass upon areas * * * it enumerates,” decided it sufficed in the
instant case that by installing the GPS device the “Government physically occupied
private property for the purpose of obtaining information.” As the concurring
Justices lamented, under that view long-term and intensely close surveillance
without a trespass would continue to fall outside the Fourth Amendment.
§ 2.3
“PROBABLE CAUSE” AND RELATED PROBLEMS
(a) When and why “probable cause” in issue
The Fourth Amendment provides that “no Warrants shall issue, but upon probable
cause,” and thus it is apparent that a valid arrest warrant or search warrant may
only be issued upon an affidavit or complaint setting forth facts establishing
probable cause. Those arrests and searches that may be made without a warrant
must not be “unreasonable” under the Fourth Amendment, and because the
requirements in such cases “surely cannot be less stringent” than when a warrant is
obtained, Wong Sun v. U.S., 371 U.S. 471 (1963), probable cause is also required in
such circumstances. Draper v. U.S., 358 U.S. 307 (1959).
When the police act without a warrant, they initially make the probable cause
decision themselves, although it will be subject to after-the-fact review by a judicial
officer upon a motion to suppress evidence found because of the arrest or search.
When the police act with a warrant, the probable cause decision is made by a
magistrate in the first instance, but his decision may likewise be challenged in an
adversary setting upon a motion to suppress. However, because of the Leon “good
faith” rule (see § 6.4), a finding of no probable cause in a with-warrant case will not
often result in suppression. But Leon is inapplicable when the affidavit was “so
lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable.” Leon indicates that as far as the executing officer is
concerned, the question is “whether a reasonably well-trained officer would have
known that the search was illegal despite the magistrate’s authorization.” But Leon
also requires good faith on the part of the officer applying for the warrant, and as to
him the fact the magistrate acted favorably on the warrant request is irrelevant.
Malley v. Briggs, 475 U.S. 335 (1986).
Although there are many circumstances in which arrests and searches may be
made without a warrant (see §§ 2.6, 2.7, 2.8), the Supreme Court has expressed a
strong preference for arrest warrants, Beck v. Ohio, 379 U.S. 89 (1964), and search
warrants, U.S. v. Ventresca, 380 U.S. 102 (1965), on the ground that interposing an
orderly procedure whereby a neutral and detached magistrate makes the decision
is better than allowing those engaged in the competitive enterprise of ferreting out
crime to make hurried decisions reviewable by a magistrate only after the fact and
by hindsight judgment. This preference has even resulted in a subtle difference
between the probable cause required when there is no warrant and that required
when there is; “in a doubtful or marginal case a search under a warrant may be
sustainable where without one it would fall.” U.S. v. Ventresca, 380 U.S. 102 (1965).
Although there is reason to question whether before-the-fact review when
warrants are sought is always as cautious as presumed by the Supreme Court, the
warrant process at least has the advantage of providing a before-the-fact record of
the facts upon which probable cause is based. If the police have acted without a
warrant, the probable cause determination must be made primarily upon the basis
of the officer’s testimony on the motion to suppress, and thus there is some risk
that the facts brought out at that time may not be limited to those upon which the
officer acted. But when the police have acted with a warrant, the factual justification
is under the prevailing practice set out in a complaint or affidavit, and at the
suppression hearing the issue is whether those pre-recorded facts show probable
cause. Thus, a defective complaint or affidavit may not be saved by police testimony
that they actually had additional facts, Whiteley v. Warden, 401 U.S. 560 (1971),
although where not barred by statute it is possible to receive testimony that
additional facts were orally presented to the magistrate under oath at the time of
the warrant application.
Even an affidavit sufficient on its face may be challenged upon a later motion to
suppress. If the defendant makes a substantial preliminary showing that a false
statement was included therein by an affiant who either knew the statement was
false or acted with reckless disregard for the truth, and it appears that the allegedly
false statement was material (i.e., necessary to the earlier probable cause finding),
the Fourth Amendment requires that a hearing be held at defendant’s request. If the
defendant then proves the allegation of perjury or reckless disregard by a
preponderance of the evidence, the affidavit must then be judged with the false
material excised. Franks v. Del., 438 U.S. 154 (1978). This is an express exception to
the “good faith” rule of U.S. v. Leon, 468 U.S. 897 (1984). The Court in Franks did
not require invalidation because of a material false statement negligently made, as a
few courts had previously done, or because of an immaterial but deliberately false
statement, as many courts had previously done.
Probable cause for arrest does not necessarily constitute probable cause for a
search warrant, nor does probable cause for a search warrant necessarily provide
grounds for arrest; each requires the same quantum of evidence, but as to
somewhat different facts and circumstances. For a search warrant, two conclusions
must be supported by substantial evidence: (1) that the items sought are connected
with criminal activity; and (2) that the items will be found in the place to be
searched. By comparison, for arrest there must be probable cause (1) that an
offense has been committed; and (2) that the person to be arrested committed it.
Thus, a showing of the probable guilt of the person whose premises are to be
searched is no substitute for a showing that items connected with the crime are
likely to be found there, and an affidavit for a search warrant need not identify any
particular person as the offender.
(b) Degree of probability
The Court in Brinegar v. U.S., 338 U.S. 160 (1949) declared that “in dealing with
probable cause * * * we deal with probabilities,” but did not identify the degree of
probability needed other than to say that “more than bare suspicion” and “less than
evidence which would justify * * * conviction” was required. Some of the Supreme
Court’s decisions may be read as adopting a more-probable-than-not test, so that,
for example, there would not be grounds to arrest unless the information at hand
provided a basis for singling out but one person, e.g., Mallory v. U.S., 354 U.S. 449
(1957), though Md. v. Pringle, 540 U.S. 366 (2003) can be interpreted otherwise.
But the lower court cases generally do not go this far, and instead merely require
that the facts permit a fairly narrow focus, so that descriptions fitting large
numbers of people or a large segment of the community will not suffice. This
permits an arrest to be made on the somewhat general descriptions often given by
crime victims or witnesses, though courts are not inclined to be as lenient when the
uncertainty goes to whether any crime has occurred, as when the police observe
suspicious activity. As to this latter situation, it is commonly said that arrest and
search based on events as consistent with innocent as with criminal activity are
unlawful.
Brinegar also characterized the probable cause requirement as “the best
compromise that has been found for accommodating” the often opposing interests
of privacy and effective law enforcement. This raises the question of whether this
“compromise” must always be struck in precisely the same way, or whether instead
probable cause may require a greater or a lesser quantum of evidence, depending
upon the facts and circumstances of the individual case. As discussed later herein
(see §§ 2.9, 2.11), certain unique investigative techniques that involve significantly
lesser intrusions into freedom and privacy are governed by a less demanding
probable cause standard. Also, some investigative activities are so intrusive that
more than the usual probable cause showing is needed. Winston v. Lee, 470 U.S.
753 (1985) (obtaining evidence by surgery requires, inter alia, strong need for that
evidence). Compare N.Y. v. P.J. Video, Inc., 475 U.S. 868 (1986) (fact First
Amendment interests involved does not require higher probable cause standard).
The Court has wisely declined to adopt a sliding-scale probable cause formulation
requiring a weighing and balancing of the competing interests in each and every
case. Dunaway v. N.Y., 442 U.S. 200 (1979).
(c) Information to be considered
Probative evidence may be considered in determining whether there is probable
cause, without regard to whether such evidence would be admissible at trial. Thus,
it is proper to consider hearsay, Draper v. U.S., 358 U.S. 307 (1959), and a prior
police record, Brinegar v. U.S., 338 U.S. 160 (1949). As the Court explained in
Brinegar, those rules of evidence at trial that exclude probative evidence because of
“possible misunderstanding or misuse by the jury” have no place at the probable
cause determination, where “we deal with probabilities. These are not technical;
they are the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.” Probable cause may not be
established by showing the arresting or searching officer subjectively believed he
had grounds for his action. Beck v. Ohio, 379 U.S. 89 (1964).
(d) Information from informants
Those probable cause cases that have reached the Supreme Court have dealt almost
exclusively with the troublesome question of when probable cause may be
established solely upon the basis of information from an informant or upon such
information plus some corroborating facts. Under the traditional view, if probable
cause is to be based solely upon the informant’s information, then the warrant
application or the testimony at the suppression hearing if there was no warrant
must reveal (1) underlying circumstances showing reason to believe that the
informant is a credible person, and (2) underlying circumstances showing the basis
of the conclusions reached by the informant. Aguilar v. Tex., 378 U.S. 108 (1964).
This “two-pronged test” of Aguilar was abandoned in Ill. v. Gates, 462 U.S. 213
(1983), discussed below, but Gates declares that “veracity” and “basis of
knowledge” remain “highly relevant,” so it is still useful to think about those two
factors.
For example, a search warrant affidavit merely stating that a credible informant
reported that narcotics are concealed in certain premises (as in Aguilar) is defective
in two respects. First, there is no disclosure of why the informant is believed to be a
credible person, such as that he provided information on past occasions which
investigation proved to be correct, McCray v. Ill., 386 U.S. 300 (1967), or that his
statement constituted an admission against his own penal interest, U.S. v. Harris,
403 U.S. 573 (1971). But such disclosure alone should not be enough, for even a
credible person may reach unjustified conclusions on the basis of circumstantial
evidence or information from unreliable sources. That is, even if it were established
that the informant was a credible person, it would still be unclear whether he
asserted that there were narcotics in the house because (a) he saw them there, (b)
he assumed they were there because of defendant’s suspicious conduct, or (c) he
was told by someone that they...
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