2. Fourth Amendment Flashcards
1
Q
Does the Fourth Amendment apply to private conduct?
A
No. The Fourth Amendment applies only to government, not private conduct.
2
Q
When does the Fourth Amendment apply to a private party acquiring evidence?
A
When a private party acts at the direction of a government agent or pursuant to an official policy.
3
Q
Can police circumvent Fourth Amendment protections by using a private party?
A
No. Police cannot circumvent Fourth Amendment protections by having a private party conduct an illegal search.
4
Q
Are arrest warrants required before arresting someone in a public place?
A
No. Arrest warrants are generally not required before arresting someone in a public place.
5
Q
Does the nonemergency arrest of an individual in their own home require an arrest warrant?
A
Yes. A nonemergency arrest in a home requires an arrest warrant.
6
Q
What determines if a person is in custody?
A
Objective circumstances surrounding the interrogation.
(1) A reasonable person would have felt he was not at liberty to terminate the interrogation and leave; and
(2) Was in an environment that presented inherently coercive pressures.
7
Q
What factors are relevant in determining a suspect’s freedom of movement?
A
- Location of questioning
- Duration of questioning
- Statements made during the interview
- Presence or absence of physical restraints
- Release of the interviewee
8
Q
Has an arrest occurred when a person is taken into custody for the purpose of commencing a criminal action?
A
Yes. An arrest has occurred.
9
Q
Is a stop-and-frisk search considered an arrest?
A
No. A stop-and-frisk is not considered an arrest.
10
Q
Can officials strip-search individuals who have been arrested?
A
Yes. Officials may strip-search individuals arrested for any crime, even without reasonable suspicion that they are dangerous or carrying contraband items.
11
Q
Are Body-Cavity Searches permissible in Georgia?
A
Body-Cavity have to be minor surgery or it cannot be compelled with or without a warrant.
12
Q
Can police collect DNA samples from arrestees?
A
Yes. Police may collect DNA samples from arrestees.
13
Q
Is an unlawful arrest a viable defense to a subsequent conviction of the crime charged?
A
No. An unlawful arrest is no defense to a subsequent conviction.
14
Q
Is a warrant required for an arrest?
A
No. A valid arrest may occur with or without a warrant.
The police need only probable cause.
15
Q
What probable cause do police need for an arrest?
A
- Their own observations of a suspect;
*personally witnessing a crime; or - Information obtained from third parties
16
Q
Can police observations prior to a stop provide probable cause for an arrest?
A
Yes. Police observations can justify detaining and questioning a suspect IF they reasonably indicate criminal activity.
17
Q
How is probable cause to arrest obtained indirectly through an informant?
A
The informant’s tip must contain specific details and reliability must be confirmed prior to the moment of arrest.
18
Q
When are warrantless in-home arrests justified by consent or exigent circumstances?
A
- an arrest attempt outside the home is thwarted because the suspect retreats into the home;
- there is insufficient time to secure a warrant because the delay would allow the suspect to evade arrest or destroy evidence; or
- the arresting officer is in “hot pursuit” and has probable cause to effect a valid arrest of the suspect.
19
Q
Can police search for the subject of an arrest warrant in the home of a third party?
A
No. They cannot search WITHOUT exigent circumstances, consent, or a search warrant for those premises.
20
Q
What is the knock-and-announce rule?
A
Officers must knock and announce their identity before entering to make an arrest.
21
Q
What is an exigent circumstance for the knock-and-announce rule?
A
An exigent circumstance would include reasonable suspicion that knocking and announcing would be:
i.) dangerous or futile; or
ii.) would inhibit effective investigation.
22
Q
Does violation of the knock-and-announce rule trigger automatic exclusion of evidence?
A
No. It does not automatically trigger exclusion of evidence.
23
Q
Can an arresting officer break windows of a property?
A
It depends. An arresting officer may break windows or other property only if reasonably required to execute the warrant.
24
Q
When can Officers make a forced entry into a home with a valid search warrant?
A
ONLY when the person is believed to be inside and no response occurs.
25
When can officers make a forced entry into a home with a valid arrest warrant?
ONLY where is probable cause to believe the person named is on the premises.
26
Can police officers and private citizens make arrests for felonies committed in their presence?
Yes. Both police officers and private citizens may make such arrests.
27
When can a police officer arrest a person for a felony not committed in his presence?
When he has reasonable grounds to believe the person committed the felony.
28
When can a private citizen arrest a person for a felony not committed in his presence?
A private citizen may arrest a person, but it will be valid only if the felony is found to have actually been committed.
29
When can police officers and citizens make arrests for misdemeanors?
(1) the crime is committed in their presence; and
(2) the misdemeanor amounts to a breach of the peace.
30
Is an arrest warrant required for a misdemeanor that a police officer did not personally observe?
Yes. An arrest warrant is required for a misdemeanor that the police officer did not personally observe, regardless of whether the arrest takes place inside or outside the suspect's home.
31
What is Probable Cause?
quantity of facts and circumstances within the police officer's knowledge that would warrant a reasonable person to conclude that the individual in question has
i.) committed a crime (i.e., for an arrest);
or
ii.) that specific items related to criminal activity can be found at a particular location (i.e., for a search).
32
How is probable cause evaluated?
Probable cause is evaluated in terms of what was known at the moment of the government intrusion.
A police officer may establish probable cause by considering events leading up to the moment of arrest.
33
What is required for the court to issue an anticipatory or conditional warrant?
(1) if the triggering condition occurs, there MUST be a fair probability that evidence of a crime or contraband will be found at a particular location; and
(2) there is probable cause that the triggering condition will occur.
34
What is reasonable suspicion?
Specific, articulable information suggesting a suspect is or will engage in illegal activity.
35
Can a person present during a valid search be detained?
Yes. Persons present may be detained during a valid search.
36
What is the Terry Stop?
brief, investigative detention by law enforcement when they have reasonable suspicion that a person is involved in criminal activity.
police can stop and temporarily detain someone without a warrant or probable cause, as long as they have a reasonable suspicion of criminal behavior.
37
A Terry Stop is NOT ___________ nor ________
-Not an Arrest: the person is detained temporarily, not taken into full custody.
-Not a Full Search: Officers can only frisk for weapons, NOT search for contraband UNLESS they develop probable cause.
38
Is sudden flight from a high-crime area reasonable suspicion for an investigative stop?
Yes. It may be adequate for reasonable suspicion.
39
Is an anonymous tip an adequate reasonable suspicion?
No. An anonymous tip alone is inadequate.
However, under the totality of the circumstances, an anonymous tip coupled with police corroboration of some of the information contained in the tip shows sufficient indicia of reliability to justify an investigative stop.
40
Can the police perform a stop-and-frisk?
If a police officer reasonably believes, based upon the officer's own observations or those of an informant, that criminal activity may be afoot, then the officer may stop and briefly question a criminal suspect.
41
Can the police do a limited pat-down of a suspect’s outer garments for weapons?
Yes. The police may do a limited pat-down of the suspect's outer garments (i.e., a "frisk”) for weapons if they have a reasonable and articulable suspicion that the person detained may be “armed and dangerous," despite the lack of probable cause or a warrant.
42
Can the frisk extend to the interior of a suspect’s car?
Yes. The frisk may also extend to the interior of a car where the suspect is sitting.
43
Can an officer seize items that they feel on a suspect?
Yes. If during the frisk for weapons, the officer feels items that reasonably feel like a weapon or contraband, such as crack cocaine, the officer may seize the items, even if they turn out to be something other than weapons or contraband.
44
Is a police officer justified in requesting a suspect’s name during a terry stop?
Yes. A police officer is justified in requesting a suspect's name as identification during a Terry stop as long as the request has an immediate relation to the purpose of the stop.
45
Will an officer’s improper subjective basis for the stop result in an illegal stop?
No. The fact that an officer may have also had some improper subjective basis for the stop will NOT result in a finding that the stop was illegal, as long as the stop was supported by an objectively reasonable belief that the suspect was engaged or about to engage in criminal activity.
46
Can an officer’s reasonable belief be based on hearsay?
Yes. The officer's reasonable belief may be based upon hearsay, such as an informant's tip.
However, the objective evidence requirement mandates that the information be confirmed as reliable prior to actually conducting the stop. The tip must contain some predictive information so that the police may test the tip.
47
When can a Terry stop based on less than full probable cause be permitted?
* Suspected involvement in a past felony
* Threat to public safety
48
Section C: Evidentiary Search and Seizure
How does a defendant show standing to assert a Fourth Amendment claim?
By showing a legitimate expectation of privacy in the items or premises.
49
Does a passenger in an automobile have standing to challenge the validity of a search of the vehicle?
No. A passenger in an automobile lacks standing to challenge the validity of a search of the vehicle.
50
Does a passenger in an automobile have standing to challenge a police stop?
Yes. A passenger can challenge a police stop.
51
Does an overnight guest in another’s home have standing to assert a Fourth Amendment claim?
Yes. An overnight guest has standing.
52
Is Fourth Amendment standing automatic for a defendant charged with possession of an illegal item?
No. Standing is not automatic.
53
What is the expectation of privacy for short-term guests, non-overnight social guests, and commercial guests in a host's home?
They have no reasonable expectation of privacy.
54
Does a defendant have a reasonable expectation of privacy for objects not held out to the public?
Yes. A defendant has a reasonable expectation of privacy when the objects identified by the government investigation are not "held out to the public."
55
Does a defendant have a reasonable expectation of privacy for objects held out in public?
No. defendant has no expectation of privacy in things held out in public:
(1) handwriting exemplars;
(2) voice exemplars;
(3) bank records;
(4) pen registers,which record telephone numbers dialed; and
(5) private conversations, including eavesdropping.
56
Is Fourth Amendment standing automatic for a defendant charged with possession of an illegal item?
No.
57
What must a defendant show to establish Fourth Amendment standing in possession cases?
A legitimate expectation of privacy and a substantial nexus between the defendant and the place searched.
58
Does a defendant have a reasonable expectation of privacy for objects held out in public?
No.
59
Does a person in a closed telephone booth have a reasonable expectation of privacy?
Yes.
60
Is the government's use of a device or technology to observe the interior of a home unreasonable under the Fourth Amendment?
Yes.
61
What is the open fields doctrine?
-Areas outside a home's immediate living space, including undeveloped land and airspace for naked-eye observations, don't receive Fourth Amendment protection. Thus, physical trespass in these areas doesn't constitute a search under the Amendment.
areas outside the curtilage (dwelling house and outbuildings) are subject to entry and search and unprotected by the Fourth Amendment. Even buildings such as barns are considered to be outside the curtilage of a house.
62
Does a defendant have a reasonable expectation of privacy in discarded property?
No.
63
Does a canine search constitute an unreasonable search?
No.unless the canine physically intrudes upon a constitutionally protected area (e.g., home, curtilage, or person).
64
Is a canine search to sniff for narcotics on a front porch of a private home considered a 'search' under the Fourth Amendment?
Yes.
65
Does the use of drug-sniffing dogs trained to detect contraband in an automobile invade the privacy rights of a suspect?
No. The use of drug-sniffing dogs trained to detect contraband for an automobile, but not other items, does not invade the privacy rights of the suspect.
66
Are warrantless searches permitted at airports?
Yes.
67
What is the requirement for drug-sniffing dogs at airports?
Detention must be brief and subject to Fourth Amendment limitations.
68
Are drug-sniffing dogs allowed during traffic stops?
Yes.brief prolongations of these stops to allow for such inspections did not violate the Fourth Amendment.
69
Can the police prolong a traffic stop to wait for drug-sniffing dogs to inspect vehicles?
No. A police stop exceeding the time needed to handle the matter for which the stop was made violates the Fourth Amendment.
70
What is the rule for a search conducted by a government authority without a warrant?
Generally unlawful unless it fits a specific exception.
71
What is a warrant?
A judicial authorization for police action to search or arrest.
72
What must a search warrant describe?
The place to be searched and items to be seized.
73
Does illegally obtained probable cause support a search warrant?
No.
74
Can a police detain or search anyone on a premises subject a search warrant?
Yes. Under Georgia law, police may detain or search anyone on premises subject to a search warrant to protect himself from attack or to safeguard the items described in the warrant from disposal or concealment.
75
What is timing requirement for execution of a search warrant in Georgia?
Georgia law requires that the warrant be executed within 10 days of its issuance.
76
What are the three requirements for an arrest warrant?
1. Issued by a neutral magistrate;
2. after probable cause; and
3. must describe the suspect.
77
What are the four requirements for a warrant?
* Issued by a neutral magistrate
* Supported by probable cause
* Describes the place and items with particularity
* Evidence must be relevant and not outdated.
78
Is a justice of the peace who is also the state attorney general neutral and detached?
No.
79
Is a court clerk a neutral judicial officer?
Yes.
80
Is a warrant invalid if the magistrate takes a monetary award for issuing it?
Yes.
81
Can a neutral magistrate supervise the scope of the search?
No.
82
Is a warrant authorizing the search of an entire apartment building valid when only one apartment is required?
No. Where only the search of one apartment is required, a warrant authorizing the search of the entire apartment building is imprecise and thus invalid.
83
Can contraband not named in the warrant be seized?
Yes, under the plain view doctrine.
84
Can a location owned by nonsuspects be searched?
Yes, upon obtaining a warrant.
85
Can occupants on premises be detained during a search of contraband?
Yes. A warrant properly issued for the search of contraband carries with it the implicit authority to detain occupants on the premises during the search.
86
When is probable cause for a warrant satisfied?
(1) The testimony or affidavit presented to the magistrate contains facts or circumstances that are still relevant and not out of date;
and
(2) It must be sufficient that a reasonable person would conclude it to be more probable than not that evidence of named items or persons will be found.
87
When can a warrant based on an informant’s tip be issued?
When probable cause is established under the totality of the circumstances.
(1) credible information;
(2) reliable informant;
(3) police corroboration; and
(4) declaration against interest.
88
Do informants need to reveal their identity?
No.
89
When is it improper to issue a warrant?
If the intrusion is unreasonable.
90
Can a defendant challenge the affidavit of the issued warrant?
Yes.
91
Does a search warrant have to specify the precise manner for its execution?
No.
92
Can persons unnamed in a warrant be searched?
No.
93
Can private citizens execute warrants with the police?
No.
94
Can police obtain a search or arrest warrant after entering a defendant’s home without a warrant?
No.
95
Is the presence of third parties proper when police enter a home under a warrant to search for stolen property?
Yes. Where the police enter a home under the authority of a warrant to search for stolen property, the presence of third parties for the sole purpose of identifying the stolen property is proper.
96
What are the seven exceptions to warrantless searches?
1. Searches incident to a lawful arrest
2. Automobile exception
3. Plain view
4. Consent
5. Searches pursuant to a stop
6. Hot pursuit
7. Exigent circumstances.
97
When are Warrantless Arrests allowed in Georgia?
Georgia allows warrantless arrests for the reasons allowed under common law. Georgia also allows warrantless arrests if:
1. The officer has probable cause that an act of family violence has occurred;
2. The officer has probable cause to believe that there has been physical abuse against a vulnerable adult(at least 18 years of age and cannot protect himself from abuse because of physical or mental impairment); or
3. Where it is likely there will be a failure of justice for want of a judicial officer to issue a warrant.
98
What are searches incident to a lawful arrest?
Searches of the defendant's person and the area within immediate control.
99
What does a search incident to a lawful arrest include?
A protective sweep of adjoining rooms
the entire domicile may be scanned ONLY IF there is reasonable suspicion of an armed accomplice.
100
Is a warrantless search of an entire house following a lawful arrest constitutional?
No.
101
When can the police search the passenger compartment of a vehicle?
If it's reasonable to believe the defendant might access the vehicle at the time of arrest.
102
Can police search the driver or the car for contraband when they issue a traffic citation and do not make an arrest?
No. When police officers merely issue a traffic citation and do not make an arrest, they may not
i.) search the driver; NOR
ii.) search the car for contraband.
103
Are pretextual stops by officers for traffic violations allowed?
Yes. If a police officer has probable cause to believe that a traffic law has been violated, the officer may stop the suspect’s vehicle even if the officer’s ulterior motive is to investigate a crime for which the officer lacks sufficient cause to make a stop.
104
Can a police officer order occupants to step out of a car during a lawful traffic stop?
Yes. when a police officer has lawfully stopped a vehicle, in the interest of officer safety, the officer may order the occupants (driver and passengers) out of the car.
105
Does the search incident to a lawful arrest have to be contemporaneous with the arrest?
Yes. A search incident to a lawful arrest must be contemporaneous to the arrest and may even precede it.
When the offense in question authorizes a full custodial arrest, a search incident to that arrest may follow, even when the police do not fear for their safety or believe contraband will be found.
106
Is a warrantless search of a cell phone constitutional?
No. The warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional.
107
What is the Automobile Exception?
A lesser expectation of privacy exists in vehicles, allowing for prompt law enforcement action.
108
Does the automobile exception extend to passengers that exit the vehicle before it is stopped and searched?
No. Police need another basis to conduct a search of the passenger such as probable or a warrant.
109
Can a police officer search for weapons in the car?
Yes. The officer can search anywhere that weapons could be found, including a locked glove box or the trunk. He can also check the driver for weapons.
110
Can the police search a vehicle later once they have seized it?
Yes. once the police have probable cause to search the moving or temporarily stopped vehicle, they may seize the vehicle and search it later, even if there is sufficient time to obtain a warrant between the seizure of the vehicle and the subsequent search.
111
Can the police inspect a container within an automobile?
Yes. The police may inspect a container within an automobile if they have probable cause to believe the container has contraband or evidence, even where the police do not have probable cause to search the entire car.
112
When are warrantless searches and seizures of items from an automobile justified?
* Search incident to a lawful arrest
* Plain view
* Inventory search following lawful impounding
* Border search.
113
Can the police conduct a warrantless search of a parked vehicle?
No, unless for non-criminal purposes; the mobility threat is lower, allowing time to obtain a warrant
Warrantless searches of parked vehicles are rare and typically require exigent circumstances.
114
Can a mere lawful stop based on reasonable suspicion of a criminal violation ripen into probable cause for a warrantless search?
Yes
This means that initial reasonable suspicion can escalate to probable cause if further evidence is revealed during the stop.
115
What is required for police officers to stop a vehicle?
Probable cause to believe a traffic law has been violated
Officers may stop a vehicle even if they have ulterior motives for investigating other crimes.
116
Can police officers randomly stop a vehicle to check licenses and registrations without reasonable suspicion?
No
Random stops without reasonable suspicion are unconstitutional as they grant excessive discretion to police officers.
117
Can police officers operating at a checkpoint stop traffic to check licenses and registrations?
Yes, as long as the stops are random and based on a fixed formula
This allows for systematic checks while maintaining constitutional protections.
118
Can police set up a checkpoint to search vehicles for evidence of illegal drugs?
No
Drug checkpoints for general crime control without individual suspicion violate the Fourth Amendment.
119
Are police highway checkpoints allowed to obtain information from motorists about a recent crime?
Yes
These checkpoints are permissible as they do not violate the Fourth Amendment.
120
Can customs officials stop vehicles at permanent checkpoints located at or near the border?
Yes
Such stops do not constitute an unreasonable seizure and do not require reasonable suspicion.
121
What is the Special Needs Doctrine?
A warrantless, suspicionless search may be justified when special needs beyond normal law enforcement make the warrant requirement impracticable.
This doctrine allows for searches in specific contexts where immediate action is necessary.
122
Are police permitted to use checkpoints to conduct searches in response to public safety dangers?
Yes
This allows for limited searches without individualized suspicion in emergencies.
123
What is the balancing test for special needs searches?
The test weighs:
* The nature of the privacy interest involved
* The character and degree of governmental intrusion
* The nature and immediacy of the government's needs and the efficacy of the program
Courts assess the justification for the search against the privacy rights of individuals.
124
Does a special needs search have to be based on a fixed formula?
Yes
This requirement limits officer discretion in determining whom to search.
125
Can police seize any contraband in plain view during a special needs inspection?
Yes
This applies even if the contraband is unrelated to the public safety concern being addressed.
126
What is an unreasonable special needs stop?
A stop that is not based on a valid special needs justification
Evidence obtained from such a stop is considered tainted.
127
What can police seize without a warrant under the plain view doctrine?
The police may seize property that is clearly visible in plain view without a warrant if:
(1) the police are lawfully present at the place where the object can be seen;
(2) the officers have a lawful right of access to the object; and
(3) it is "immediately apparent" that the object is incriminating.
128
Can a police officer follow an arrestee into their house and seize contraband in plain view?
Yes
This is allowed as long as the officer is in lawful pursuit.
129
Can a police officer move object to get a better view?
No. The police officer may not move objects to get a better view.
130
What is consent for purposes of a warrant?
Consent allows for a warrantless search without justification if voluntary
This waives Fourth Amendment rights.
131
What are the three elements to justify a search based on consent?
To justify a search based on consent, police must establish the following three elements:
(1) Consent must be a voluntary decision made without coercion, fraud, or durress;
(2) The search must not exceed the scope of the consent; and
(3) The consenting party must have actual or apparent authority to consent.
132
Do police have to inform the defendant of their right to withhold consent?
No
Officers are not required to inform individuals of their rights regarding consent.
133
Is consent given pursuant to an invalid warrant considered involuntary?
Yes. Consent given pursuant to an invalid warrant is deemed involuntary.
134
Can consent be revoked at any time?
Yes.
Once revoked, the search must cease immediately.
135
Who can consent to a search?
A person with actual or apparent authority, such as:
* The owner or occupant
* Someone with key access
Authority must be clear for the consent to be valid.
136
Can a landlord consent to the search of a tenant’s apartment?
No
Landlords do not have the authority to consent to searches of tenants' private spaces.
137
Can a motel owner consent to the search of a guest’s room?
No.
Motel owners lack authority to consent to searches of guests' rooms.
138
Does a co-occupant’s refusal to a search request render a warrantless entry invalid?
Yes
A co-occupant's refusal is controlling and invalidates the search.
139
What is a stop in legal terms?
Momentary detention of a suspect, often with limited questioning
Stops can occur in various locations, including homes and streets.
140
Is a stop a seizure under the Fourth Amendment?
Yes
Stops must be reasonable to comply with constitutional standards.
141
Is probable cause required for a short, investigatory stop?
No
Reasonable suspicion is sufficient for short stops.
142
Is a warrantless search lawful when police are in hot pursuit?
Yes
This exception allows police to search and seize evidence without a warrant.
143
What are exigent circumstances?
Emergency situations that justify a warrantless search to prevent evidence loss or destruction
This includes scenarios threatening health or safety.
144
Under exigent circumstances, when can the police conduct a a warrantless search and seizure of evidence in or on a suspect's body?
1. there is probable cause to believe that the nature of the evidence renders it easily destroyed or likely to disappear before a warrant can be obtained; and
2. the procedure for seizing the evidence is reasonable.
145
What are Administrative Searches?
Searches conducted by administrative agencies for regulatory enforcement with lesser probable cause required
These searches differ from criminal investigations.
146
What is wiretapping?
Use of electronic surveillance without the suspect's knowledge or consent
This practice violates a defendant's right to privacy.
147
What must a wiretap warrant contain?
It must show:
* Probable cause of crime
* Names of suspects and specific conversations
* Valid for a brief period
This ensures oversight and limits the duration of surveillance.
148
Are conversations privileged under the Fourth Amendment?
No
There is no constitutional protection against eavesdropping or recording conversations.
