4th 5th and 6th Amendments

29 November

• US v. Donald Simms Recent 7^th Cir. opinion with curtilage, etc. Follows through the steps nice and methodically; written by Posner. Get from 7 Cir web site, cases decided on 11/23 (10-1055, 10-1076).
• Warrantless seizures. These happen a lot in conjunction with warrantless searches, especially of cars. Passengers are seized when the vehicle is stopped and they can't leave (seizure by use of force/show of authority). This doesn't even require reasonable suspicion or case-specific indicia of dangerousness.

  The officer's inquiry can be unrelated to the reason for the stop. Duration of the seizure (>1H) can be an issue.

  Pat-frisk may be reasonable in this context (see AZ v. Johnson: car is stopped for insurance violation, passenger is siezed and frisked because of possible Crips connection, for officer safety, gun is found). Officer safety is usually the reason.

• IL v. Lafayette: inventory searches. That's kind of rare around here, just because departments around here mostly don't store the vehicles themselves-- they get sent to private contractors.
• 4A does not require a warrent when there are exigent circumstances (hot pursuit, immanent safety, shots fired, some other emergency, etc.). We don't want to deter police in this context. Police aren't allowed to create the exigent circumstances, though. There's overlap here with the "community caretaker" idea. Also, the reasonableness of the search is circumscribed by the emergency that justified its initiation (see way back to Mincey: the "murder exception" theory, and the 4 day search). WI kind of has a kidnapping exception: State v. Larsen. You get this during long standoffs: at what point has the situation become stable enough, or long enough, that the exigency has washed out of the situation?
• Special needs and administrative searches. See 387 US 523 (1976), 387 US 541 (1967), 515 US 646 (1995). We allow some invasiveness in order to allow folks (e.g., building inspectors) to do their work. Probation searches are the easies example. School searches (NJ v. T.L.O.): we want schools to provide a safe environment for the kids-- it's school safety, not law enforcement, so reasonable suspicion is the standard. Generally, we're looking at searches not related to criminal justice processes, and motivated by concern for public safety. The hot-button issue here is roadblocks. Informational and drunk-driving roadblocks seem to be OK. Drug interdiction/crime control and license/registration are not.
• Hack: put up an OWI Task Force Ahead sign, and stop the people who turn off on side streets. WI does not allow OWI roadblocks, so this tactic is sometimes employed.
• Extraterritorial searches: searches outside the US tend to be allowed. But searches in one state authorized by a judge in another probably are not.
• And at the border, suspicionless searches are allowed.
• Wayne LeFave: 5 vols... Search and Seizure

1 December

• Arrests: These are 4A events. It's a seizure. What do you need to support an arrest?
  • In Public: probable cause (that criminal activity has been committed, is about to be committed, or is underway), belief that the arrested person is culpable. Note that the future crime is misleading-- you can't proactively detain people-- we're talking an incohate offence (attempt, solicitation, or conspiracy to commit). No warrant required (although that's nice to have, both to wrap yourself in the good faith doctrine, and also in case you don't find the person in public and you want to stake out the home).
  • In the Suspect's Home: probable cause, arrest warrant. Steagald v. US (1981). Or consent, of course. And actually a search warrant will work, but that's a harder thing to get.
  • 3^rd party's home: probable cause, consent or search warrant. Payton v. NY (1980).
Arrest rules have been very stable, unlike everything else in 4A law, except for traffic stuff. Except in one area: what if the offense is one for which the maximum penalty would not include deprivation of liberty? Atwater v. City of Lago Vista. It doesn't matter: even if the violation is punishable only by forfeiture or fine, you still can be arrested. That's counterintuitive, but there it is.
• Back on searches and seizures. GPS is where the edge is right now. And most of the deciding here has been on state constitutional bases, not 4A, and they've generally said that this is a search (i.e., requires a warrant), but that's mostly a sign that they're waiting to see which way the federal courts go. WI said they'd assume without deciding that there is a 4A search, but the court order satisfies 4A warrant requirements.