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)
What may police search if consent is given?
Scope of consented search
Areas which police might reasonably believe fruits of crime could be found
What is required for terry stop and frisk without warrant?
Stop (NOT arrest)
1) Reasonable suspicion of criminal activity
2) Articulable facts
Frisk
1) Reasonably believes
2) Armed + dangerous
What may police search during a frisk?
D’s outer clothing (patdown)
D’s inside clothing
- Specific info that weapon/contraband exists inside clothing (regardless of source of info)
Passenger compartment
1) Reasonably believe weapon may be hidden
2) Reasonably believe D is dangerous
What is the difference between terry frisk and search incident to arrest?
Terry frisk
- Passenger compartment may be searched
- NO arrest
- Police reasonably believe weapon may be hidden + D is dangerous
Search incident to arrest
- Passenger compartment may be searched
- Arrest
- Police reasonably believe fruit of crime may be hidden
- D is unsecure + may gain access to car
What is required for hot pursuit without warrant?
1) Fleeing felon
2) Arrest with probable cause in public place
3) Pursue felon in private place
What is required for entering home under exigent circumstances without warrant?
1) Reasonably believe evidence will be destroyed in home otherwise
2) NO violation of 4A
What is required for seizing goods under evanescent circumstances without warrant?
Evidence likely to disappear before warrant obtained
- Totality of circumstances
What is required for entering home based on emergency aid without warrant?
1) Address emergency
2) Could affect health/safety
3) Objective test
- Officer’s viewpoint
What is required for public school search without warrant?
1) Reasonable grounds (NOT probable cause)
2) Moderate chance of finding evidence of wrongdoing
3) Search measures are reasonably related to search objectives
4) Search is NOT excessively intrusive in light of students’ age + sex
What is required for wiretapping search warrant to be executed?
1) Probable cause to believe specific crime is committed
2) Names of specific persons for overhearing
3) Particularity re conversations
4) Short duration
5) Termination once desired info obtained
6) Return conversations to court
When may speaker lose Fourth Amendment claim against wiretapping?
Unreliable ear
- Speaker assumes risk that person spoken to is unreliable + realises person is wired
Uninvited ear
- Speaker makes no attempt to keep conversation private
What is required for inventory search?
Search ‘arrested’ D’s personal belongings
- For inventory (before imprison/fine D)
Search ‘arrested’ D’s entire vehicle (impounded)
- As part of established department routine
Strip search ‘arrested’ D for contraband before imprisonment
- No reasonable suspicion required
What are examples of reasonable suspicion to conduct a terry stop?
Matching description of fleeing felon
Dropping suspicious object
Running away from police in high crime neighbourhood
- NOT quickly walking away
When may police conduct protective sweeps of a person’s home?
1) Police arrest D pursuant to warrant
2) Police may search other areas in home for hiding suspects
- If police have reasonable suspicion of suspects hiding => Police may search NON-immediately adjacent areas (likely to find suspect)
- If police have NO reasonable suspicion of suspects hiding => Police may search immediately adjacent areas
