2. Fourth Amendment COPY Flashcards
Fourth Amendment
Seizure
Under the Fourth Amendment, a seizure pertains to the government’s interference with an individual’s person or property rights.
Seizure of a person
A person is considered “seized” when law enforcement, through physical force or a show of authority, restrains their freedom of movement. This occurs when a reasonable individual would not feel free to leave or disregard the police presence.
Is a warrant required for an arrest?
No. A valid arrest may occur with or without a warrant.
The police need only probable cause.
What are the three requirements for an arrest warrant?
- Issued by a neutral magistrate;
- after probable cause; and
- must describe the suspect.
What probable cause do police need for an arrest?
- Their own observations of a suspect;
*personally witnessing a crime; or - Information obtained from third parties
Does the nonemergency arrest of an individual in their own home require an arrest warrant?
Yes. A nonemergency arrest in a home requires an arrest warrant.
Are arrest warrants required before arresting someone in a public place?
No. Arrest warrants are generally not required before arresting someone in a public place.
Warrantless Arrests
- A felony or misdemeanor was committed in the officer’s presence.
- A felony was committed outside the officer’s presence, but the officer has probable cause to believe the suspect committed the felony.
- Certain misdemeanors involving a breach of the peace.
Probable Cause Requirement
Probable cause is always required for a warrantless arrest.
Probable cause exists if:
The facts and circumstances within the officer’s knowledge would lead a reasonable person to believe that the suspect has committed, is committing, or is about to commit a crime.
Without probable cause, an arrest violates the Fourth Amendment and the exclusionary rule applies.
When are Warrantless Arrests allowed in Georgia?
Georgia allows warrantless arrests for the reasons allowed under common law. Georgia also allows warrantless arrests if:
- The officer has probable cause that an act of family violence has occurred;
- 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
- Where it is likely there will be a failure of justice for want of a judicial officer to issue a warrant.
How is probable cause to arrest obtained indirectly through an informant?
The informant’s tip must contain specific details and reliability must be confirmed prior to the moment of arrest.
Is a stop a seizure under the Fourth Amendment?
Yes
Stops must be reasonable to comply with constitutional standards.
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.
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.
Is a stop-and-frisk search considered an arrest?
No. A stop-and-frisk is not considered an arrest.
Can police observations prior to a stop provide probable cause for an arrest?
Yes. Police observations can justify detaining and questioning a suspect IF they reasonably indicate criminal activity.
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.
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).
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.
What is reasonable suspicion?
Specific, articulable information suggesting a suspect is or will engage in illegal activity.
Is sudden flight from a high-crime area reasonable suspicion for an investigative stop?
Yes. It may be adequate for reasonable suspicion.
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.
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.
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.
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.
When can a Terry stop based on less than full probable cause be permitted?
- Suspected involvement in a past felony
- Threat to public safety
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.
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.
Fourth Amendment
Searches
a search occurs when a government official intrudes upon an individual’s reasonable expectation of privacy.
What are the four requirements for a search warrant?
- Issued by a neutral magistrate
- Supported by probable cause
- Describes the place and items with particularity
- Evidence must be relevant and not outdated.
Are Body-Cavity Searches permissible in Georgia?
Body-Cavity have to be minor surgery or it cannot be compelled with or without a warrant.
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.
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.
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).
Is a canine search to sniff for narcotics on a front porch of a private home considered a ‘search’ under the Fourth Amendment?
Yes.
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.
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.
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.
What are the seven exceptions to warrantless searches?
- Searches incident to a lawful arrest
- Automobile exception
- Plain view
- Consent
- Searches pursuant to a stop
- Hot pursuit
- Exigent circumstances.
What are searches incident to a lawful arrest?
Searches of the defendant’s person and the area within immediate control.
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.
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.
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.
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.
What is the Automobile Exception?
A lesser expectation of privacy exists in vehicles, allowing for prompt law enforcement action.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Can a police officer move object to get a better view?
No. The police officer may not move objects to get a better view.
What is consent for purposes of a warrant?
Consent allows for a warrantless search without justification if voluntary
This waives Fourth Amendment rights.
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.
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.
What are exigent circumstances?
Emergency situations that justify a warrantless search to prevent evidence loss or destruction
This includes scenarios threatening health or safety.
Under exigent circumstances, when can the police conduct a a warrantless search and seizure of evidence in or on a suspect’s body?
- 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
- the procedure for seizing the evidence is reasonable.
What is wiretapping?
Use of electronic surveillance without the suspect’s knowledge or consent
This practice violates a defendant’s right to privacy.
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.
Audio/Video Recording
Audio 1 party consent(must be party to convo)
Video/photo all party consent if private place out of public view; illegal recording inadmissible except
(1) law enforcement use
(2) property owner security recording and
(3) prove violation of the rule against recording
