Search and Seizure Law Report 1997: Vol 24 Index

7 Pages·1997·2 MB·

INDEX TO SEARCH AND SEIZURE LAW REPORT
Volumes 23 and 24 (January 1996—December 1997)
File this Index as pages 181-185 of the Volume 23-24 binder.
[References are to page numbers]
~~
Stage set for good faith exception, 165-68
Appellate review of warrantless search determina- Challenges to the magisterial issuance of search
tions: the triumph of the “de novo” standard warrants
Appellate review of search warrant validity determina- Conclusion, 87
tions, 70-71 Constitutional limits on who may issue warrants, 82
Conclusion, 72 Failure of issuing magistrate to sign or seal warrant, 87
Introduction, 65 Issuing magistrates who are per se not neutral and
Ornelas and mixed questions of law and fact: de novo detached, 82-83
exceptions, 70 Jurisdictional limits on issuing magistrates, 82
Ornelas v. U.S. Magistrate held not to be impartial, 83-84
Facts, 65-66 Magistrate held to be impartial, 84
Procedural posture, 66-67 Magistrates as “adjunct law enforcement officers,” 84-85
Supreme Court’s ruling Overview, 81
Questions of law and questions of fact, 67-68 “Rubber stamp” magistrates, 85
Reasonable suspicion” and “probable cause,” 68 Scope of “issuing magistrate” inclusion, 81-82
Precedential consistency, 71-72 Significance of magistrate’s prior refusal to issue
Scalia dissents, 72 warrant, 86
Significance of review standards Significance of prior search of same premises, 86—87
Mixed questions of law and fact, 69-70 Significance of prior warrant or indictment, 85-86
Questions of fact, 69 Specific claims of magistrate’s partiality, 83
Questions of law, 69 When may a warrant be issued?, 87
Why a de novo standard? Who may issue a search warrant?, 81
Exposition of the law, 71 Clancy, Thomas K.
Unification of precedent, 71 Author of article, 33-40
Uniformity of application, 71 Clipper chip: how key escrow threatens to undermine
the Fourth Amendment
Conclusion, 7-8
le Continuing government strategy, 7
Government controls of encryption technology,
Beci, Donald L. strategy of, 4-5
Author of article, 93-100 History of authorized wiretapping, 1-2
Biggs, U.S. v., Protective sweep of motel room of Introduction, 1
defendant arrested in parking lot upheld, 15-16 Legal implications of the Clipper chip, 5—7
Burkholder, State v. (Ohio), Exclusionary rule held Legislative response to new communications technolo-
inapplicable in parole revocation proceedings, 88 gies, 4
Burkoff, John M. Minimization limitation on Title III interceptions, 3-4
Author of article, 81-87 Shortcomings of key escrow, 5
Burkoff, John M., and Corin R. Stone Cloud, Morgan
Authors of article, 65-72 Author of articles, 125-32, 133-40
Burkoff, Nancy M. Communications Assistance for Law Enforcement
Author of article, 73-79 Act (Digital Telephony Act), see Ciipper chip: how
key escrow threatens to undermine the Fourth
Amendment
En Corr, Kevin
Author of article, 41-48
Case against the potential expansion of the good faith Credible officer testimony, see Subjective motives and
exception to warrantless searches and seizures constitutional searches; see also Testilying: police
Case against expansion of good faith exception, 168-70 perjury and what to do about it
Conclusion, 170-71 Cromer, Richard J.
Overview, 165 Author of article, 57-64
las Application of the proposed extension of good faith,
39-40
Dobson, Mark M.
Conclusion, 40
Author of article, 173-80
Exclusionary rule and good faith exception, 33-35
Door left open: applicability of the Fourth Amendment
Overview, 33
exclusionary rule to juvenile court delinquency
Leon, U.S. v., distinguished, 35-36
hearings
Limitations on expansion of good faith, 38-39
Conclusion, 147
Why good faith should be extended, 36-38
Constitutional rights of juvenile delinquents, 146-47
Exclusionary rule in civil proceedings, 145-46
a
Exclusionary rule in criminal proceedings, 142-45
Searches by police officials, 144-45
Fed. R. Crim. P. 41(e), see Of diaries and data banks:
Searches by school officials, 143-44
use restrictions under the Fourth Amendment
Overview, 141-42
Fisher, Eric B.
Author of article, 117-24
-E
Fleissner, James P.
Author of article, 165-71
Electronic Communications Privacy Act of 1986
Forcible entry, see Framers, indoor plumbing, and the
(ECPA), see Clipper chip: how key escrow threatens
Fourth Amendment: Wilson v. Arkansas
to undermine the Fourth Amendment
Foreman, State v. (Indiana), Search of locked room in
Electronic surveillance, see Clipper chip: how key
bingo hall held illegal, 171
escrow threatens to undermine the Fourth Amend-
Framers, indoor plumbing, and the Fourth Amend-
ment; see also IVHS, legal privacy, and the legacy
ment: Wilson v. Arkansas
of Dr. Faustus
Aftermath of decision, 77—79
Emerging issues in state constitutional law: search and
Oral argument, 75-76
seizure decisions
Overview, 73-74
Automobiles, 60-61
Proceedings in the Arkansas courts, 74
Conclusion, 64
Section 3109, 74-75
Consensual searches, 59-60
Supreme Court opinion, 77
Exclusionary rule
Fundamental fairness approach, see International law
Good faith exception, 61
enforcement and the Fourth Amendment: the
Inevitable discovery exception, 61-62
fundamental fairness approach
Introduction, 57-58
Miscellaneous
wilt.
Automatic companion rule, 62-63
Automatic standing, 62
Good faith exception to Fourth Amendment, see
Plain touch, 63
Extending the good faith exception; see also Emerg-
Plain view, 63
ing issues in state constitutional law: search and
Searches by public school officials, 63-64
seizure decisions
Unlawfully seized evidence in civil tax proceedings,
Good faith exception to warrantless searches and
use of, 64
seizures, see Case against the potential expansion of
What constitutes a seizure?, 58-59
the good faith exception to warrantless searches and
Exclusionary rule, see Case against the potential
seizures
expansion of the good faith exception to warrantless
Gutierrez-Moran, U.S. v., Consent search held to include
searches and seizures; see also Door left open:
answering machine tape, 162-63
applicability of the Fourth Amendment exclusion-
ary rule to juvenile court delinquency hearings
-H-
Execution of a criminal search warrant on a legitimate
business-effective preparation and response
Hage, State v. (North Dakota), Four-month-old probable
Execution of search warrant, 149-50
cause information held not stale, 161-62
Gaining access to seized items, 154-56
Hawkins, Commonwealth v. (Pennsylvania), Anony-
Overview, 149
mous tip of man with gun insufficient to support Terry
Particularity requirement, 151-53
stop, 147-48
Preparation for possibility of search warrant, 153-54
Hendrickson, State v. (Washington), Warrantless search
Probable cause and execution of warrant, 150-51
of prisoner’s vehicle upheld, 171-72
Surviving execution of warrant, 153
Hidden racism of Terry v. Ohio
Warrant is intended to implement protection against un-
Ambivalent argument of Terry v. Ohio
reasonable search and seizure, 150
Acceptance of NAACP’s premises and rejection of
Extending the good faith exception
its conclusion, 51-52
Invasiveness of stops and frisks and the violence of Electronic surveillance of automotive movement, 13—15
criminals, 51 Fourth Amendment law and peripheral searches, 11-12
Marginalization of racial concerns, 52 Introduction, 9-10
Misunderstandings of the legacy of Terry v. Ohio, What the Fourth Amendment can do for IVHS, 10
52-53 What IVHS can do for the Fourth Amendment, 10-11
Contemporary implications of the critique, 54-56 When a search is not a search after all, 13
Critique of Terry’s argument that the law is powerless
against racism, 53-54
-jJ-
Introduction, 49-50
Overview of Terry v. Ohio, 50-51 Jaras, United States v., Driver’s consent did not extend to
History and the Fourth Amendment suitcase, 172
Cuddihy history of Fourth Amendment, 134-36 Jerez, U.S. v., Persistent knocking held to constitute
General searches and congressional statutes, 139-40 seizure, 115-16
General warrants, general searches, and probable cause, Johnson, State v. (Washington), Search of sleeping
136-39 compartment in tractor-trailer cab held lawful search
Overview, 133-34 incident to arrest, 32
Partial histories and lawyers’ purposes, 140 Juvenile court delinquency hearings, see Door left
Hodson, State v. (Utah), Police use of gun and neckhold open: applicability of the Fourth Amendment
to force defendant to spit out contents of mouth held exclusionary rule to juvenile court delinquency
Fourth Amendment violation, 16 hearings
Holloman, United States v., Hybrid roadblock/roving
patrol upheld, 171 les
Holmes, State v. (Minnesota), Police may not make Terry
stop to investigate mere parking violation, 162 Kalie, State v. (Louisiana), Detention based largely on
driver and passenger nervousness held lawful where
= seizure objectively justified, 163-64
Katz v. U.S., see Thermal imagery vs. the Fourth
Inadvertence and intentionality, see “Oops!”’: inad- Amendment
vertence, intentionality, and the police Key escrow encryption, see Clipper chip: how key escrow
Informants and the Fourth Amendment: a reconsid- threatens to undermine the Fourth Amendment
eration Knock-and-announce, see Framers, indoor plumbing,
Conclusion, 115 and the Fourth Amendment: Wilson v. Arkansas
Court’s informant cases misjudge privacy, 112-14 Kowal, Steven M.
Modern informant cases Author of article, 149-56
Gouled v. U.S., 110-11 Krent, Harold J.
Hoffa v. U.S., 111-12 Author of article, 17-24
Lewis v. U.S., 111-12
Lopez v. U.S., 111-12 ds
On Lee v. U.S., 111
Overview, 109-10 Legitimate business and criminal search warrants, see
Treat informant spying like wiretapping, 114-15 Execution of a criminal search warrant on a
Intelligent Vehicle Highway Systems (IVHS), see legitimate businessfeffective preparation and
IVHS, legal privacy, and the legacy of Dr. Faustus response
International law enforcement and the Fourth Amend- Leon, U.S. v., see Extending the good faith exception
ment: the fundamental fairness approach
Conclusion, 124
= M
Exclusionary social contract approach, 118-19
Functionalist constitution, 121-22 Maclin, Tracey
Fundamental fairness, 122-23 Author of article, 109-15
Harmless universalism, 122 Magisterial issuance of search warrants, see Challenges
Kennedy concurrence, 120-21 to the magisterial issuance of search warrants
More inclusive municipal law approach, 119-20 Marijuana, see Thermal imagery vs. the Fourth
Overview, 117 Amendment
Towards administrable fundamental fairness, 123-24 Maryland v. Wilson, Mims rationale application to
Verdugo-Urquidez and different approaches to extrater- passengers in stopped vehicle; certiorari granted, 64
ritoriality, 117-18
Issuance of search warrants, see Challenges to the aNs
magisterial issuance of search warrants
IVHS, legal privacy, and the legacy of Dr. Faustus New York v. Belton, see White, Commonwealth v.
(Pennsylvania), see also Johnson, State v. (Washing- Pretextual investigations, see Police, pretextual
ton) investigatory activity and the Fourth Amendment:
1986 Wiretap Act (Title III), see Clipper chip: how key what hath Whren wrought?
escrow threatens to undermine the Fourth Amend-
ment; see also IVHS, legal privacy, and the legacy Ms
of Dr. Faustus
Racism in search and seizure, see Hidden racism of
O- Terry v. Ohio
Rosenberg, Irene Merker
Of diaries and data banks: use restrictions under the Author of article, 141-47
Fourth Amendment
Conclusion, 24 ss
Evolution from property to privacy-based analysis, 18—
19 Schwartz, Adina
Government’s duty to return items and information Author of article, 49-56
seized Search and seizure decisions in the states, see Emerg-
Duty to return information seized, 20-21 ing issues in state constitutional law: search and
Duty to return property (Fed. R. Crim. P. 41(e)), 19- seizure decisions
20 Search and seizure issues, see Treading through the
Overview, 17-18 quagmire of search and seizure issues
Restricting unreasonable subsequent uses Search warrants, issuance of, see Challenges to the
Categorical ban on previously undisclosed uses, 23- magisterial issuance of search warrants
24 Slobogin, Christopher
Legislative balancing, 22-23 Author of article, 101-8
Preventing unreasonable uses through case-by-case State v. Robinette (Ohio), Traffic stop detainee must be told
balancing, 22 he or she is free to go before consensual interrogation, 8
“Oops!”’: inadvertence, intentionality, and the police State v. Superior Court (Arizona), Mandatory testing of
Conclusion, 161 juvenile sex offenders upheld, 171
Intentionality and eyewitness identifications, 160-61 Stone, Corin R., and John M. Burkoff
Intentionality and Miranda, 159-60 Authors of article, 65-72
Intentionality and the Fourth Amendment, 158-59 Stoute, Commonwealth v. (Massachusetts), Person
Introduction, 157-58 seized when officer initiates pursuit intended to stop
Ornelas v. U.S. and detain person for inquiry; California v. Hodari
Supreme Court decides de novo standard of review rejected, 108
applies to appellate consideration of magistral Subjective motives and constitutional searches
determinations of probable cause or reasonable Automobiles and “objective” tests, 129-30
suspicion in warrantless search cases, 56 “Could have” test, 130-32
See also Appellate review of warrantless search “Dual” tests, “objective” tests, and emergencies, 128-29
determinations: the triumph of the “de novo” Overview, 125-26
standard Perjury and suppression of evidence, 127-28
Testilying, 126-27
le “Would have” test, 132
See also Testilying: police perjury and what to do
Police perjury, see Testilying: police perjury and what about it
to do about it Suppression motions in warrantless search cases, see
Police, pretextual investigatory activity and the Fourth Appellate review of warrantless search determina-
Amendment: what hath Whren wrought? tions: the triumph of the “de novo” standard
Conclusion, 180
Implications of Whren, 177-79 Pr
Introduction, 173
Pre-Whren debate over Fourth Amendment pretext prob- Technology and the Warrant Clause, see Using magis-
lems, 173-74 trates and computer technology to resuscitate the
Scott v. U.S., 174 warrant requirement
Traffic stops and orders to exit vehicles, 179-80 Terry v. Ohio, see Hidden racism of Terry v. Ohio
Whren decision, 175-77 Testilying: police perjury and what to do about it
Preparing for and responding to criminal search Changing the remedy, 107-8
warrants on legitimate businesses, see Execution of Conclusion, 108
a criminal search warrant on a legitimate business- Expansion of warrant requirement, 105
effective preparation and response Flexifying probable cause, 106-7
Informant production, 105 Exigent circumstances exception; automobile exception,
Nature of testilying, 102-4 99-100
Overview, 101-2 Good faith exception, 100
Pancha system, 105 Incentives to encourage warrant process; discourage war-
Proposals for reducing, 104-5 rantless searches, 97-99
Punishments and rewards, 106 Overview, 93-94
Reducing pressure to lie and to ignore lying, 106 Warrant process must be fortified, 96-97
Subjecting police witnesses to lie detection, 106 Warrant requirement consistent with Framer’s intent and
Videotaping, 105-6 Supreme Court precedent, 94-95
See also Subjective motives and constitutional
searches aa
Thermal imagery vs. the Fourth Amendment
Circuit split on thermal imagery Vega, U.S. v., Hour-long Terry stop made at gunpoint held
Early consensus, 26 constitutional, 31-32
Tenth Circuit splits the circuits, 26-27 Verdugo-Urquidez, U.S. v., see International law
Conclusion, 31 enforcement and the Fourth Amendment: the
Constitutional analysis of thermal imagers (Katz v. fundamental fairness approach
U.S.)
“Intrusiveness” of the alleged search, 28-29 «Wa
“Place” of the alleged search, 28
“Reasonable” expectations of privacy, 27-28 Warrant Clause of Fourth Amendment, exceptions to,
“Subjective” expectations of privacy, 27 see Using magistrates and computer technology to
Fourth Amendment principles, 25-26 resuscitate the warrant requirement
Inaptly-attempted analogies to more traditional law Warrantless search determinations, see Appellate
enforcement techniques review of warrantless search determinations: the
Discarded residential garbage, 29-30 triumph of the “de novo” standard
Narcotics dog sniffs, 30-31 Weisberg, Robert
Introduction, 25 Author of article, 9-15
Torkelson, Christopher E. Whipps v. State (Indiana), Search and seizure of shoe
Author of article, 1-8 held consensual, 164
Treading through the quagmire of search and seizure White, Commonwealth v. (Pennsylvania), Belton rule
issues rejected, 24
Consent issues generally, 44-45 Whren, U.S. v.
Frisks generally, 43-44 Pretext search case taken by Supreme Court, 15
Introduction, 41 Supreme Court eliminates possibility of demonstrating
Investigative detention generally, 45 existence of unconstitutional pretext search where
Miscellaneous, 46 officer stops car with probable cause to believe
Search incident generally, 45-46 traffic law violated, 56
Search of persons (chart), 47 Whren v. U.S., see Police, pretextual investigatory
Search of vehicles (chart), 48 activity and the Fourth Amendment: what hat
Summary, 46 Whren wrought?; see also Subjective motives and
Vehicle searches constitutional searches
Consent, 41 Wilson v. Arkansas, see Framers, indoor plumbing, and
Inventory, 42-43 the Fourth Amendment: Wilson v. Arkansas
Search incident, 41-42 Wiretapping, see Clipper chip: how key escrow
Vehicle exception, 42 threatens to undermine the Fourth Amendment
Vehicular frisk, 41 Womack v. U.S., Handcuffing defendant held not to
convert Terry stop into arrest, 79-80
sWe
euT e
Use of seized property or information, see Of diaries
and data banks: use restrictions under the Fourth Yeager, Daniel
Amendment Author of article, 157-61- Z —
Using magistrates and computer technology to resusci- Zabel, Matthew L.
tate the warrant requirement Author of article, 25-31
Advantages flowing from magistrates and warrant re-
quirement, 95-96
Developments in technology, 94