2. Search & Seizure (4A) Flashcards
What is required for a constitutional search/seizure under Fourth Amendment?
1) Governmental conduct
2) Either;
- Physical intrusion into constitutionally protected area
- Violation of reasonable expectation of privacy
3) Warrant
What type of conduct is governmental?
Public officials
Citizens acting at public official’s direction
Private security guards (deputised as public police officers)
Public policy
What is required for violation of reasonable expectation of D’s own privacy?
Standing
- D owns/has right to possession of place searched
- D’s home (whether or NOT D owns home)
- D was overnight guest
- Squeezing luggage (physically invasive)
- Dog sniff around D’s home entry/within curtilage
- Dog sniff at traffic stop (exceeds ticket issue time)
- Sense-enhanced technology used to obtain info (NOT generally available to public)
When does defendant have no reasonable expectation of privacy?
Criminal fugitive kidnapped in foreign country by FBI
TP premises
Things held out to public
- Handwriting/Voice samplar
- Car paint
- Smell of luggage/car (drug-sniffing dog)
- Bank accounts
- Areas outside curtilage (dwelling house, outbuildings, barn) + Garbage for collection (Open Fields doctrine)
- Police fly-overs of field/yard to observe with naked eye
What is required for applying for a warrant?
1) Probable cause
- New evidence (NOT remote evidence)
2) Belief that seizable evidence will be found on person/premises at time warrant is executed
3) Affidavit => Magistrate
- Place to be searched (clear)
- Property to be seized (clear)
How must a warrant be executed?
1) By police officer
2) NO unreasonable delay
What is the Knock and Announce Rule?
1) Officer executed search warrant
2) Officer must either;
- Knock and announce their authority + purpose => Wait for admittance after reasonable time
- Be refused admittance => Use force to enter place
What is the exception to the Knock and Announce Rule?
If knock and announce would be dangerous/futile => No need to knock
If knock and announce would inhibit investigation (lead to evidence destruction) => No need to knock
What is the scope of search and seizure pursuant to an executed warrant?
Search
- Reasonably necessary to discover items described in warrant
- Persons described in warrant
Seizure
- Contraband/Fruits of crime discovered (whether or NOT described in warrant)
What is required for search incidental to arrest without warrant?
1) Lawful arrest
- Probable cause (whether or not valid under state law)
2) Search incident to arrest
3) Search contemporaneous with arrest (time + place)
What may police search incidental to lawful arrest?
D’s wingspan
- Where D could reach to obtain weapons/destroy evidence
Interior of car (passenger compartment)
- D is unsecured + may gain access to car at time of search
- Police reasonably believe evidence of offence for which D is arrested may be found in car
D’s/Passenger’s personal belongings
D’s entire car (closed containers)
What is required for ‘automobile exception’ search without warrant?
1) Probable cause
2) Belief that car contains fruit/evidence of crime
What may police search under the ‘automobile exception’?
Entire vehicle
- Trunk
- Glove compartment
Closed containers in car that might contain object for which police is searching
Closed containers NOT in car BUT recently placed in car + probable cause to believe they might contain object for which police is searching
- Police can NOT search entire vehicle
Belongings
- Driver
- Passengers
What is required for plain view without warrant?
1) Police legitimately on premises
2) Police discovered fruits of crime/contraband
3) In plain view
4) Probable cause to believe item is fruit of crime/contraband
- Immediately apparent
What is required for consent to search without warrant?
1) Voluntary
- NO need for D to have knowledge of right to withhold consent
- NO need for D to have knowledge of police’s identity
2) D has apparent equal right to use/occupy property
- Co-occupant consents
- Co-occupant rejects + Co-occupant removed by lawful arrest (NOT related to rejection)
- Parent consents to search Child’s bedroom (NOT intentionally locked/locked containers)
