11. Constitutional Definition of a Search.

Question 1

Under what authority do I have to search?

Answer 1

Authority is granted under the fourth amendment to the United States Constitution, and article 14 of the Massachusetts declaration of rights

These rights insist officers based their searches on probable cause and perform in a reasonable manner

Probable cause ensures that officers invade the privacy of a citizen only when they have adequate justification

Question 2

Who has the burden of proof to show that a warrantless search was reasonable?

Answer 2

The government

Question 3

When, and only when is a search subject to constitutional regulations?

Answer 3

State action, example by law-enforcement, official, or an agent of the government

When there is a reasonable expectation of privacy. The search must intrude on the suspect reasonable, expectation of privacy

Question 4

Police may take advantage of a citizen’s desire to help so long as I do not:

Answer 4

Direct the effort (case where an inmate provided details on another inmates rape, then told the police. SJC ruled this was proper, because police did not direct him to provide the information in the first).

Question 5

If a doctor pulls a bullet out of a suspect leg, is he now an agent of the government if he turns over the bullet to me?

Answer 5

No, because the removal of the bullet was medically necessary

Hospital blood test, proof defendants intoxication of OUI at trial.

The motivation for the test was medically necessary, and not for the discovery of evidence.

Question 6

Do public school administrators need a warrant to search?

Answer 6

No, but must have reasonable suspicion in order to search, and methods must be appropriate given the object of the search. What are they looking for? The nature of offense?

Question 7

What specifically is the fourth amendment and article 14 clear about protecting from unreasonable police intrusions?

Answer 7

Private areas. Private areas include:

Citizens body
Home
Possessions

Question 8

What are the three constitutional justifications to enter private areas?

Answer 8

Warrant
Consent
Exception to warrant

Question 9

Clothing removed by hospital for treatment versus safekeeping;

Answer 9

Treatment: ripped off and thrown on floor? no expectation of privacy. Sorry.

Safekeeping : clothing, removed and not torn away and stored for safekeeping in a bag in locker. Constitutional bus ticket required for this warrant, consent, exigent circumstances

Question 10

What level of information is needed for a probation officer (or a police officer assisting that probation officer) To search a person on probation?

Answer 10

Reasonable suspicion

However, if that search is conducted in the probationers home, a warrant based on reasonable suspicion is needed

Separate consents, warrant based on reasonable suspicion to seize a probationers phone

Parole officers may conduct warrantless searches of homes/trailers/ramshackle apartments/of parolees.

Question 11

Is a hotel or motel room considered a dwelling for curtilage privacy protections?

Answer 11

Yes, hotel or motel guests are entitled to expectation of privacy in their rooms, except if they’ve been properly evicted.

Question 12

Can I search a college dorm room without a warrant?

Answer 12

No, a college dorm room is considered a dwelling, and you would need a search, consent, emergency aid, or exigent circumstances

Question 13

Is a fenced in backyard considered part of a cartilage?

Answer 13

Yes, also, the side yard of a multifamily may be part of the cartilage and a mailbox is considered part of the cartilage

Question 14

What does open fields refer to?

Answer 14

Any area beyond the curtilage.

Question 15

Is a driveway part of the curtilage?

Answer 15

No, not if a visitor uses it to reach the front or back door.

Question 16

May police over hear conversations?

Answer 16

They may overhear private conversations from an area where the suspect has no reasonable, expectation of privacy.

Question 17

When officers intrude on a suspect’s privacy, what do they need?

Answer 17

A warrant or some other legal justification.

Question 18

Can the police knock at the entrance of someone’s door?

Answer 18

Yes, but a person does not have to open it and they should not insist they do but they may knock on anybody’s door.

Question 19

What is a knock and talk and when should it occur?

Answer 19

A knock and talk is when police identify themselves.This should only occur during normal visiting hours, otherwise the approach is coercive.

Question 20

Can I shine my flashlight in somebody’s window?

Answer 20

Yes when called to investigate an incident. This is permissible.

Question 21

May I use binoculars in public?

Answer 21

Yes, however if I’m using them to observe activities inside the home that does infringe on privacy.

Question 22

What level of information do I need to try a key in a lock of a private home?

Answer 22

Reasonable suspicion is needed. Once confirmed the key works, then get a warrant.

Question 23

Is the K9 sniff of the curtilage permitted?

Answer 23

According to the Supreme Court, without more, this is not permissible because the court likened to the use of a super sensitive instrument to detect things that cannot otherwise be seen/smelled.

Question 24

Do I need a warrant to violate a residence privacy with use of technology?

Answer 24

Yes, because you are learning about activities inside the home (example thermal imaging)

Question 25

Is a pole camera surveillance of a home intrusive?

Answer 25

If it is extensive it becomes a search. This is true even if the pole camera is located in public.

Question 26

Do citizens have an expectation of privacy in their possessions?

Answer 26

Generally citizens reasonably expect that their possessions will not be searched unless police have probable cause

Question 27

What is needed to be considered property abandoned?

Answer 27

A suspect must voluntarily relinquish control and give up his expectation of privacy however this cannot be done by force (An officer grabbing a suspect coat, and he wiggles out of it officer left standing with coat as suspect runs away). Officer cannot search coat as abandon property in the situation

Police may trick a suspect to get a DNA sample as long as there no evidence of coercion.

Question 28

What is the dominant factor in determining abandoned property?

Answer 28

The place where the property is found in the suspect relationship to that place

Question 29

What is standing?

Answer 29

A legal concept that prevents defendants from challenging a police search, where said defendant did not have a reasonable expectation of privacy (US, Supreme Court decision Rawlings v. Kentucky)

Question 30

What are the two exceptions to the general standing rule?

Answer 30

Borrowed standing and target standing

Question 31

What is borrowed standing?

Answer 31

A defendant may borrow his codefendant’s expectation of privacy if police seize contraband from the codefendant and also plan to charge the defendant with its unlawful possession.
Without this rule an offender could legally challenge the seizure of contraband and go free whilst codefendant would be denied the same opportunity.

Question 32

What is target standing?

Answer 32

This alleges deliberate police illegal conduct. This is often used by organized crime figures the assertion that police violated the rights of lesser criminals in order to get evidence against the “big fish“

In Massachusetts this may only be used for blatant police misconduct (officers close call on probable cause drug search was not the type of mistake that warranted target standing)