Review Session

• Question: if you are searching a person for a weapon, and you find something that you think might be a weapon, but it turns out to be drugs, is that admissible?

  Answer: If you have specific and articulable facts that make you think a crime is afoot, and you find the thing, it's a good chance to get admitted.

• Terry: two steps:
  • Reasonable suspicion that a crime is afoot
  • Ambiguities or questions that you want to get cleared up
  You can stop people to talk to them. If you have specific and articulable facts that lead you to believe you might be in danger, you can frisk.
• If you have probable cause to arrest, you can search incident to arrest.
• There's no way to remember all the rules for search. We need to know the principles. So, for example, can you search a purse? You need reasonable suspicion that the person in front of you is presently armed.
• What is an arrest: asserting the state's authority to confine someone's liberty. If the cop says STOP and you stop, that's a seizure (arrest). If you don't stop, it's not: Hodari D.
• If you can search incident to arrest, and you have probable cause to arrest, do you have to arrest in order to search? Yes. You need to arrest.
• This area of law is a bunch of nonsense. The "automobile exception to the warrant requirement" (not to the probable cause requirement). Don't make stuff up: know things like:
  • Is the searcher lawfully in the place of the search (e.g., a pocket, a house, etc.)?
  • Is there probable cause?
  • Is there an exception to the warrant requirement?
• Part of the lawyer's job is to explain to the client what the consequences of a course of action will be. The Norweiganfest example: 1A makes an issue about whether the non-random stops are legal. Suppression of evidence is less likely if the stakes are really high: there is balancing. We are creative lawyers-- we will help the police chief achieve the objective without having to violate the first amendment.
• Memorizing case names is not important. Know the principles. The way they get applied in specific cases can be unpredictable, but know the reason for the 4th amendment, the reason for the searches, etc., and talk about that.
• A lot of these questions do not have settled answers: they call for analysis and judgment.
• Remember: you can condition your decision to prosecute on compliance with this or that, and there's no oversight. Some states might have a statute requiring judicial review of diversion agreements, but not most.
• The circumstances matter a lot, but the statutes are blanket rules.
• Use cases, but do so in a way that shows you know what they mean: i.e., not just "the officer complied with Miranda," but "the officer gave the warnings 'blablabla' as required by Miranda."
• The bandana problem: the cop is in a place where he is not supposed to be. He sees something there; now he has to come back with a warrant.
• Remember what is covered by a warrant, and what the purpose of the search is. Is it a protective sweep, is it a warrant for a specific thing, was this in the grabbable area, etc.?
• Protective sweep: exception to both the warrant requirement and the probable cause requirement (i.e., only reasonable suspicion is required).