4A Search & Seizure

Question 1

4A in general

Answer 1

Prohibits unreasonable searches and seizures

Question 2

Arrest/Seizure

Answer 2

Any exercise of control by a government agent over a person or thing.

Seizure of a person = under the totality of the circumstances, a reasonable person would feel that they were not free to decline officer’s requests or terminate the encounter.

Question 3

Probable Cause Requirement for Arrest

Answer 3

Arrests must be based on probable cause.

Probable cause exists when a reasonably prudent person would believe that a suspect has committed or is committing a crime.

Question 4

Evidentiary Search and Seizure Approach

Answer 4

1. Does defendant have a reasonable expectation of privacy or was there a physical intrusion into a constitutionally protected area? (Standing)
2. Did police have a valid warrant issued by a detached and neutral magistrate? Was it based on probable cause and precise as to the place to be searched and items to be seized?
3. If no warrant, was the search or seizure within an exception to the warrant requirement?
4. Does the objecting person have standing?

Question 5

Things Held Out to the Public (no privacy)

Answer 5

1. Third party records (except cell-site location)
2. Sound of voice
3. Style of handwriting
4. Location of car on public street or in a driveway
5. Anything in open fields
6. Anything seen while flying over public airspace
7. Odors emanating from your property and
8. Garbage on the curb

Question 6

Warrant requirements

Answer 6

1. Showing of probable cause (fair probability evidence will be found)
2. Particularity (must state place to be searched and things being searched for)

Question 7

Exceptions to Warrant Requirements

Answer 7

1. Search incident to arrest
2. Automobile exception
3. Plain view
4. Consent
5. Stop and Frisk
6. Evanescent evidence
7. Hot pursuit
8. Inventory search
9. Public school search
10. Wiretapping/eavesdropping

Question 8

Consent to Search

Answer 8

A warrantless search is valid if police have a voluntary consent.

Any person with apparent equal right to use or occupy the property may consent to a search UNLESS a co-occupant is present and objects to the search which is directed against him.

Question 9

Exclusionary Rule in General

Answer 9

Any evidence obtained in an unlawful search or coerced confession will be excluded from criminal prosecution.

All fruit of the poisonous tree must also be excluded unless the costs of exclusion outweighs the deterrent effect.

Question 10

Steps to Search Questions

Answer 10

1. Was it government conduct?
2. Does the Defendant have standing?
3. Was there a warrant with probable cause and particularity?
4. If the warrant was invalid, was there good faith or an exception?

Question 11

Standing (4A)

Answer 11

Must have standing to object to unlawful search.

Standing = reasonable expectation of privacy in place or thing being searched

Standing exists if you:
1. own the home
2. live in the home
3. are an overnight guest in the home

Question 12

Arrest Warrants

Answer 12

A warrant is not required to arrest someone in public, but they are required for a nonemergency arrest in a home.

An unlawful arrest by itself has no impact on subsequent prosecution.

Question 13

Terry Stop

Answer 13

Police may briefly detain a person if they have:
1. reasonable suspicion supported by
2. articulable facts of criminal activity.

It must be more than just a hunch but need not reach the level of probable cause.

depends on the totality of the circumstances.

If it is based on an informant tip, there must be a indicia of reliability.

Suspicion that a crime is about to happen justifies the stop,

reasonable suspicion the person may be armed and dangerous justifies the frisk.

During the patdown, the officer may reach into clothing and seize any item the officer reasonably believes, based on its plain feel, is a weapon or contraband.

Question 14

Automobile stops

Answer 14

Generally, police may stop a car if they have at least reasonable suspicion to believe a law has been violated.

During a routine stop a dog sniff is not a search if it does not extend the stop beyond the time needed to issue a ticket.

Question 15

Checkpoints

Answer 15

Checkpoints for informational purposes and DUI’s are constitutional if they:

1. Stop cars based on neutral, articulable suspicion (every car) AND
2. Are designed to serve purposes closely related to a particular problem pertinent to automobiles and their mobility (drunk driving)
   Ulterior motives for a traffic stop are irrelevant.

Question 16

Warrant invalid

Answer 16

1. A false statement was included in the affidavit;
2. The affiant intentionally or recklessly included the false statement; AND
3. The false statement was material to the finding of probable cause

Question 17

Search incident to arrest

Answer 17

police may search a person and the area within his wingspan if it is done contemporaneously with the arrest.

Police may search the interior of an automobile after securing an occupant in a squad car IF they have reason to believe the vehicle contains evidence of a crime.

May search the car if the arrestee is unsecured and may gain access to the car.