4th AM: Arrest, Search and Seizure

Question 1

Who does the 4th Am’s prohibition of unreasonable searches and seizures apply to?

Answer 1

ONLY GOVERNMENT ACTORS

The Fourth Amendment’s prohibition of unreasonable searches and seizures applies only to government actors.

This includes government employees as well as private persons working on the government’s behalf or otherwise acting as an “instrument or agent of the government.”

• However, a private individual acting on his/her own behalf without the government’s knowledge or participation(e.g., concerned citizen, vigilante) is not a government actor.

Question 2

What must the defendant establish to prevail on a motion to surpress?

Answer 2

To prevail on a motion to suppress, the defendant must first establish that he has standing to contest the allegedly unlawful Fourth Amendment search.

• Standing exists when the defendant has a legitimate expectation of privacy (or an ownership/possessory interest) in the area or item searched at the time of the search.
  
  • Therefore, a defendant cannot challenge an unlawful search of a third party’s premises because it infringed upon the third party’s right to privacy—not the defendant’s.
  • Therefore, a defendant cannot challenge an unlawful search of a home that was conducted after the defendant moved out.

Question 3

Arrest vs. Search Warrant

Answer 3

Arrest warrant: Authorizes police to take person into custody

Search warrant: Authorizes police to search particular location/person and/or seize items described

Question 4

When does an unreasonable search or seizure occur?

Answer 4

Under the Fourth Amendment, an unreasonable search or seizure typically occurs when the government acts without a warrant based on probable cause.

Question 5

When can police search for an arrestee in a 3rd party’s home?

Answer 5

Police may only search for an arrestee in a third party’s home when they have:

1) a warrant authorizing the search
2) exigent circumstances OR
3) the third party’s consent to enter the home.

If none of the above requirements are met, then the exclusionary rule requires the suppression of any evidence obtained as a result of the unlawful search.

Question 6

Warrant Requirements

Answer 6

i) Based on probable cause
ii) Supported by oath or affidavit
iii) Issued by neutral & detached magistrate
iv) Particularly describes place to be searched/items to be seized

To be valid, a search warrant must be based on probable cause:

• Probable cause exists when there is a reasonable belief (more than mere suspicion) that evidence of a crime is located in the place to be searched.

Facts supporting probable cause may come from several sources, including information from a reliable, known informant.

However, information from an unknown informant must be independently verified by police.

Question 7

Probable cause to support a search warrant can come from information supplied by…

Answer 7

Probable cause to support a search warrant can come from information supplied by:

(1) a reliable, known informant OR
(2) an unknown informant if the information is independently verified.

Question 8

Exceptions to the Warrant Requirement

Mnemonic: SAD SPACES

Answer 8

Search incident to arrest

Administrative search

Stop and frisk

Plain view

Automobile exception

Consent

Exigent circumstance

Special government purpose

Question 9

When should a motion to supress be granted?

Answer 9

A motion to suppress should be granted if the contested evidence was seized during an unreasonable Fourth Amendment search.

• A search is unreasonable if it was conducted without a warrant or an exception to the warrant requirement.

Question 10

Warrant Exception

• 1. Search Incident to Arrest*
• 2. Exigent Circumstances*

Answer 10

1. This exception allows police to conduct a warrantless search of a person who has been lawfully arrested and the immediate surrounding areas for concealed weapons or destructible evidence.
2. Police may act without a warrant when there is an immediate threat of harm to police or the public.

It allows police to conduct a protective sweep to search for injured persons and continued threats.

They also can seize illegal items that are in plain view.

But once the emergency ends, the search must end unless the police obtain a warrant or another exception applies.

Question 11

Warrant Exception

Automobile Exception

Answer 11

The automobile exception justifies a warrantless search of a person’s vehicle when:

1) police have probable cause to believe that the vehicle contains evidence of a crime AND
2) the search is limited to areas where the evidence might be located.

During an automobile search, police can search any containers inside the vehicle—including the trunk and locked containers—that might contain the illegal evidence.

They can also seize any other illegal items discovered during this search.

Question 12

1. Can an incriminating statement be suppressed when police fail to provide Miranda Warnings?
2. Is physical evidence obtained as a result of a non-Mirandized statement admissible?

Answer 12

1. YES.
   * When the police fail to provide Miranda warnings, an incriminating statement made as the result of the custodial interrogation can be suppressed at a subsequent trial.
2. YES.

• In United States v. Patane, the U.S. Supreme Court held that physical evidence obtained as a result of a non-Mirandized statement is admissible so long as that statement was voluntary (i.e., not coerced).
  
  • A statement was coerced if it was the product of physical force, threats, or psychological pressure by police

Question 13

Constitutional Protections

• Fourth Amendment*
• Fifth Amendment*
• Sixth Amendment*

Answer 13

1. Fourth Amendment
   * Security from unreasonable government searches & seizures
2. Fifth Amendment

• Prohibition against compelled self-incrimination
• Right to grand jury indictment
• Double jeopardy clause – bar against multiple prosecutions for same offense
• Due process – protection against unfair deprivation of life, liberty, or property

3. Sixth Amendment

• Speedy & public trial
• Impartial jury – drawn from fair cross section of community & unbiased
• Confrontation – face-to-face & cross-examination of adverse witnesses
• Compulsory process – power to subpoena favorable witnesses
• Assistance of counsel

Question 14

Is there a Fourth Amendment search if an officer hears a statement from a place where the officer has a lawful right to be?

Answer 14

NO.

There is no Fourth Amendment search if an officer hears a statement from a place where the officer has a lawful right to be, and the Fifth Amendment does not protect voluntary incriminating statements.

Question 15

Does a grand jury that is excluded of members of a racial group give rise to an equal protection challenge?

Answer 15

Likely.

A defendant indicted by a grand jury that excluded members of a racial group may raise an equal protection challenge—even if the defendant is not a member of the excluded group.

And if deliberate discrimination is found, the conviction must be automatically reversed on appeal.

Question 16

Fruit of the poisonous tree

Answer 16

Subject to some exceptions, the exclusionary rule applies not only to evidence initially seized as a result of the primary government illegality, but also to secondary “derivative evidence” discovered as a result of the primary taint, also known as the “fruit of the poisonous tree.”

Example: A police officer conducts an unconstitutional search of a home, finds an address book, and uses that address book to locate a witness. The witness will not be allowed to testify, because her testimony would be a “fruit” of the unconstitutional search.

***The fruit of the poisonous tree doctrine is applicable to violations of the Sixth Amendment right to counsel.

• Both statements and physical evidence obtained as a result of a Sixth Amendment violation are inadmissible.

Question 17

Physical Trespass Test

Answer 17

Under the physical-trespass test, a Fourth Amendment search occurs when the government physically intrudes upon a constitutionally protected area to obtain information.

The curtilage (e.g., porch, yard) is a constitutionally protected area since it immediately surrounds and is closely associated with a person’s home.

Police have an implied license to briefly intrude upon a person’s front curtilage in the same manner as an ordinary visitor (e.g., to knock on the front door to speak with the homeowner).

However, entering the curtilage in an unusual manner for an uncommon purpose (e.g., to conduct a dog sniff for drugs) constitutes a Fourth Amendment search and must be supported by a warrant.

Question 18

Does a Miranda violation automatically require the suppression of the defendant’s later confession made after the receipt of Miranda warnings?

Answer 18

NO.

A Miranda violation does not automatically require the suppression of the defendant’s later confession made after the receipt of Miranda warnings.

Instead, admissibility turns on whether the later confession was voluntary based on the “totality of the circumstances.”

Question 19

When must a search conducted pursuant to a warrant end?

Answer 19

A search conducted pursuant to a warrant must end once the items specified in the warrant have been seized.

• If not, items seized during the extended search should be suppressed unless an exception to the warrant requirement applies

Question 20

Do motel guests have a reasonable expectation of privacy?

Answer 20

YES.

“Motel guests have a reasonable expectation of privacy in their rooms, so police generally must obtain a warrant to search the room. Police cannot circumvent the warrant requirement by asking motel managers or employees to consent to a warrantless search of a guest’s room because they lack the authority to do so.”

Motel guests have a reasonable expectation of privacy in their rooms, so a search of a motel room must be reasonable—i.e., conducted pursuant to a warrant or an exception to the warrant requirement.

Consent is an exception that allows police to conduct a warrantless search when:

(1) consent is given voluntarily,
(2) the person giving consent has the actual or apparent authority to do so, AND
(3) the search is limited to the scope of the consent.

In Stoner v. California, the Supreme Court held that motel managers and employees do not have the actual or apparent authority to consent to an officer’s warrantless entry of a guest’s room.

Question 21

Warrant requirements

To be constitutionally valid, a search warrant must:

Answer 21

Warrant requirements

• Based on probable cause
• Supported by oath or affidavit
• Issued by neutral & detached magistrate
• Particularly describes place to be searched/items to be seized

To be constitutionally valid, a search warrant must:

1. be based on probable cause
2. be supported by a sworn oath or affidavit
3. be issued by a neutral and detached magistrate and
4. particularly describe the place to be searched and the items to be seized.

In Groh v. Ramirez, the U.S. Supreme Court explained that the Fourth Amendment requires particularity in the warrant—particularity in the supporting documents will not suffice. Such particularity must appear in the warrant itself or by cross-referencing supporting documents.

Question 22

Common items & areas with no reasonable expectation of privacy

Answer 22

a) Bank records
b) Things exposed to public view (eg, open fields, abandoned property)
c) Physical characteristics (eg, handwriting, vocal sound)
d) Conversations with undercover officers & informants
e) Pen registers (ie, records of dialed telephone numbers)
f) Smells emanating from cars & other items
g) Prison inmate’s cell
h) Automobile’s vehicle identification number (VIN)

Question 23

Do convicted inmates have a reasonable expectation of privacy in their cells?

Answer 23

NO.

Convicted inmates have no reasonable expectation of privacy in their cells and no possessory interest in the items therein that would entitle them to Fourth Amendment protections.*

That is because prisons must maintain institutional security and preserve internal order and discipline.

• *A pretrial detainee may have a limited expectation of privacy in his cell, but a convicted detainee does not.

Question 24

When is a person in custody?

Answer 24

A person is in custody when:

1) the person is placed under formal arrest OR
2) the person’s freedom of movement is restrained to such a degree that a reasonable person would not feel free to terminate the encounter.

Question 25

When may police enter a third party's home to execute an arrest warrant?

Answer 25

An arrest warrant implicitly authorizes entry into the arrestee's home to serve the warrant if police have reason to believe that the arrestee is present. _Police may enter a third party's home to execute an arrest warrant only when they have:_ 1) a warrant ***authorizing the search of the home*** 2) ***exigent circumstances*** OR 3) the ***third party's consent*** to enter the home. \*\*\*Absent one of the above conditions, an arrest in a third party's home is illegal. ***But that illegal arrest does not prevent the subsequent prosecution of the arrestee—so long as the arrestee was properly charged.***\*\*\* * \*The appropriate remedy for an illegal arrest is the suppression of any evidence obtained as a result of the arrest.

Question 26

Anticipatory Search Warrant

Answer 26

When police seek the issuance of an anticipatory search warrant—i.e., a warrant that becomes effective only upon the occurrence of a triggering condition—**_the probable cause requirement is met if:_** 1) at the time of issuance, there is ***probable cause to believe that the triggering condition will occur*** AND 2) if the condition does occur, ***there is a fair probability that contraband or evidence of a crime*** will be found at the place to be searched.

Question 27

What is the search incident to a lawful arrest exception to the warrant requirement?

Answer 27

_The "search incident to a lawful arrest" exception to the warrant requirement allows police to conduct a warrantless search of:_ 1) a ***person*** who has been ***lawfully arrested*** AND 2) the areas ***within that person's immediate reach.*** The rationale for this exception is that, following an arrest, an immediate search ***is necessary for officer safety and to prevent the arrestee from destroying nearby evidence.***

Question 28

Plain view doctrine

Answer 28

Under the Fourth Amendment, a search warrant confers authority to search only the places and persons named therein. However, _the "plain view" doctrine gives an officer properly executing a warrant the authority to seize evidence not particularly described therein if:_ 1) the officer is ***lawfully*** on the premises 2) the incriminating character of the item is i***mmediately apparent*** AND 3) the officer has ***lawful access to the item***.

Question 29

Investigatory Detention

Answer 29

Under the Fourth Amendment, police may detain a person for investigative purposes if they have a reasonable suspicion—i.e., a reasonable belief, based on specific and articulable facts—that the person is or will soon be involved in criminal activity. _During the investigatory detention, police may:_ 1) ***briefly detain and question*** the person to *confirm or dispel their suspicions about the criminal activity*—including ***asking for identification*** AND 2) ***frisk*** (pat down) the ***person's outer garments to search for weapons if they "_reasonably suspect_" that the person may be armed and dangerous.*** An investigatory detention may develop into a formal arrest—e.g., if police discover a warrant for the detainee's arrest after running the detainee through a police database. * **And incident to that lawful arrest, police may conduct a warrantless search of the arrestee's person and the areas in the arrestee's immediate reach**.

Question 30

Does an overnight guest have a legitimate expectation of privacy in the area of the dwelling where the guest had permission to enter?

Answer 30

YES. ## Footnote An overnight guest ***has a legitimate expectation of privacy in the area of the dwelling where the guest had permission to enter***.

Question 31

Investigatory Detention Rule Statement

Answer 31

An investigatory detention is permitted if police have reasonable suspicion that a person is or will soon be involved in criminal activity. And if that person is lawfully arrested, then police may conduct a warrantless search incident to that arrest of both the person and the areas within the person's immediate reach.

Question 32

Does the Fourth Amendment prohibit unreasonable governmental searches of students conducted by public school officials?

Answer 32

YES. ## Footnote The Fourth Amendment prohibits unreasonable governmental searches, including searches of studentsconducted by public school officials. **But to help maintain a safe learning environment, the level of suspicion needed to justify a search is relaxed in school settings.** Therefore, school officials ***acting independent of law enforcement need only reasonable suspicion*** that a student is violating (or has violated) the law or school rules—_not a warrant or probable cause_—to conduct a search of that student. And the methods used to conduct the search must be (1) reasonably related to the objective of the search and (2) not excessively intrusive considering the student's age, sex, and the nature of the infraction.

Question 33

Does probable cause that a vehicle contains evidence of a crime justify a warrantless search of a person who is, or had been a passenger in that vehicle?

Answer 33

During an automobile search, police can search any containers inside the vehicle—including locked containers—that might contain the evidence. But probable cause to believe that a vehicle contains evidence of a crime ***does not justify a warrantless search of a person who is, or had been, a passenger in the vehicle.*** * Police **must have probable cause to believe that evidence is on the passenger before searching the passenger.**

Question 34

A Fourth Amendment search occurs when:

Answer 34

_A Fourth Amendment search occurs when:_ 1) ***police physically intrude upon a constitutionally protected area***—i.e., a person's body, house (dwelling or curtilage), papers, or effects—to ***obtain*** ***information*** OR 2) police **invade** (1) a person's **subjective expectation** of privacy (2) that society would find **objectively reasonable**.

Question 35

Are police flyovers Fourth Amendment searches?

Answer 35

Police flyovers are not Fourth Amendment searches since: (1) ***aerial observations are not physical intrusions*** AND (2) a person has **no reasonable expectation of privacy in items and areas exposed to public view.** ***\*\*\***An inspection conducted from at least 400 feet in the air, whether by airplane or a helicopter, does NOT violate a reasonable expectation of privacy and therefore is not a search for the purposes of the Fourth Amendment.\*\*\**

Question 36

When is an automobile stop considered reasonable?

Answer 36

An automobile stop is a Fourth Amendment seizure t***hat is reasonable if it is predicated upon individualized suspicion***—i.e., reasonable suspicionor probable cause that an occupant of the automobile has broken the law.

Question 37

When can police conduct an automobile stope absent individualized suspicion?

Answer 37

A checkpoint that serves a special law enforcement need unique from the general interest in crime control can justify an automobile stop absent individualized suspicion. In Illinois v. Lidster, the Supreme Court _held that a checkpoint at which motorists were stopped so that officers could ask for information about a specific crime committed on that roadway was reasonable because:_ 1) the stop's primary law enforcement purpose was to ***elicit evidence to help police apprehend individuals*** other than the vehicle's occupants 2) the stop ***significantly advanced*** a public concern AND 3) the police t***ailored the checkpoint to fit important criminal investigatory needs*** and to minimally interfere with Fourth Amendment rights.

Question 38

Is evidence of a crime discovered during a reasonable checkpoint stop admissible at a subsequent trial?

Answer 38

YES. Evidence of a crime (e.g., driving while intoxicated) discovered during a reasonable checkpoint stop is admissible at a subsequent trial.

Question 39

A checkpoint to gather information about a specific crime is reasonable if:

Answer 39

A checkpoint to gather information about a specific crime is reasonable if (1) the primary purpose is to apprehend individuals other than the motorists, (2) the stop significantly advances a public concern, and (3) the checkpoint is tailored to fit important criminal investigatory needs and minimally interfere with Fourth Amendment rights.

Question 40

When executing a warrant, may police lawfully search a person who is on the premises but is not named in the warrant without independent justification for that search? *Independent justification may come from?*

Answer 40

NO. ## Footnote When executing a warrant, police may not lawfully search a person who is on the premises—but is not named in the warrant—without independent justification for that search. **_Independent justification may come from:_** 1) ***reasonable suspicion that the person is armed***, which allows officers to pat down the person's outer garments OR 2) ***probable cause to believe that the person*** committed, is committing, or is about to commit a crime.