10. Evidentiary Search and Seizure (4th Amend)

Question 1

what is the 4 step analysis in evaluating search and seizure issues?

Answer 1

1) was there government conduct?
2) does the person have standing?
3) was there a valid warrant? (PC + particularity OR good faith defense?)
4) if not, does an exception apply?

Question 2

what is “governmental conduct”?

Answer 2

action by police officers, other govt agents, or private individuals acting at the direction of the public police

Question 3

what kinds of “officers” are NOT considered government actors UNLESS deputized?

Answer 3

store security guards, subdivision police, campus police, private security, etc

Question 4

what are the 2 ways searches/seizures implicate a person’s 4th amendment rights?

Answer 4

1) search/seizure by a government agent of a constitutionally protected area in which person had a reasonable expectation of privacy, OR
2) physical intrusion by the government into a constitutionally protected area to gain information

Question 5

what must a person have in order to have standing?

Answer 5

(based on the totality of the circumstances)
person must have their own reasonable expectation of privacy with respect to the place searched or item seized

Question 6

under what circumstances does a person automatically have a reasonable expectation of privacy in a place searched? (3)

Answer 6

1) person owned or had right of possession of the place searched
2) place searched was in fact their home (whether or not they owned or had a right to possession of it)
3) person was an overnight guest of the owner of the place searched

Question 7

when a person owns property that’s been seized, when will they have standing to challenge the seizure?

Answer 7

only if they had a reasonable expectation of privacy in the item or area to be searched

Question 8

generally, does a person have a reasonable expectation of privacy in things held out to the public?

Answer 8

no (this includes info in hands of third parties, such as bank account records!)

Question 9

does a person have a reasonable expectation of privacy in their cell-site location information?

Answer 9

yes (Carpenter v. US)

Question 10

what kinds of things held out to the public do NOT implicate a person’s right to privacy? (9)

Answer 10

1) the sound of your voice
2) the style of your handwriting
3) the paint on the outside of your car
4) account records held by a bank
5) the location of your car on a public street or highway
6) anything that can be seen across open fields
7) anything that can be seen from flying over public airspace
8) odors emanating from your luggage or car
9) garbage set out on the CURB for collection

Question 11

is police installation of a GPS device on a suspect’s car a search under the 4th amendment?

Answer 11

yes (but tailing someone on public roads is not)

Question 12

when does police use of sense enhancing technology to gain information from inside a suspect’s home violate their REP?

Answer 12

violates if…
1) the technology is not in general public use AND
2) the info gained is the kind that could not otherwise be obtained without physical intrusion into the home

Question 13

what are the two requirements for a facially valid search warrant?

Answer 13

1) probable cause
2) particularity

Question 14

what showing of probable cause is required for a valid warrant?

Answer 14

probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed

Question 15

what must the probable cause affidavit contain?

Answer 15

must set forth circumstances enabling the magistrate to make a determination of probable cause INDEPENDENT of the officers’ conclusions

Question 16

what 2 factors are considered in assessing whether a PC affidavit based on an informant’s tip is sufficient?

Answer 16

(based on totality of the circumstances)
-informant’s reliability and credibility
-informant’s basis for knowledge

Question 17

what is the good faith defense to lack of a valid warrant?

Answer 17

evidence obtained by police in reasonable reliance on a facially valid warrant may still be used at trial despite a later finding that the warrant was invalid (lacked probable cause)

Question 18

what level of “particularity” is required for a valid warrant?

Answer 18

warrant must describe with particularity the place to be searched and items to be seized
**NOTE = warrant WON’T be constitutional if it doesn’t have this (EVEN IF the affidavit underlying the warrant DOES have these details)

Question 19

what kind of magistrate must issue the warrant?

Answer 19

a neutral and detached magistrate (ie–state attorney general is not neutral)

Question 20

who can execute a warrant and when must it be executed?

Answer 20

only the police and it must be executed without unreasonable delay

Question 21

under what limited circumstance may police be accompanied by third parties when executing a warrant?

Answer 21

only if third parties are present to aid in identifying stolen property

Question 22

if police violate the knock and announce rule, will evidence otherwise properly obtained be excluded?

Answer 22

no

Question 23

what does a search warrant allow police to do to persons found on searched premises (that are NOT named in the warrant)?

Answer 23

allows police to detain them BUT it does NOT allow police to search persons found on searched premises (if NOT named in the warrant)