4th Am Warrant Req & Exceptions

Question 1

governing rule for warrants (6 things it must include and 2 it need not)

Answer 1

o governing rule (4th Am): for a warrant to be valid:
 (1) there must be probable cause to issue the warrant,
 (2) the warrant must be issued by a neutral and detached magistrate,
 (3) the warrant must be supported by an oath/affirmation,
 (4) the warrant must particularly describe the place to be searched, AND
 (5) the warrant must particularly describe the person/things to be seized
**must also specify the time period for its execution!

Need not include:

• supporting evidence for PC
• necessary conditions precedent

Question 2

rule for generalized warrants

Answer 2

o rule: the “particular description” requirement of the 4th Am makes general warrants impossible and prevents the seizure of one thing under a warrant describing another (Andresen)
 i.e. you can’t just authorize exploratory rummaging of a person’s personal belongings
 **as to what is being taken, nothing is left to the discretion of the executing officer

Question 3

requirements for the application/affidavit vs the warrant

Answer 3

o rule: the fact that the warrant application adequately describes the “things to be seized” does not save the warrant from facial invalidity, unless the application is properly incorporated by reference (Groh)
 b/c warrants serve a high function and must be strictly regulated
 b/c then there can be no written assurance that the magistrate found probable cause for each item mentioned in the affidavit

Question 4

anticipatory warrants

Answer 4

o anticipatory warrants: obtaining a warrant based where you don’t currently have PC, but once a condition occurs (say a controlled drop of drugs), you will have PC
 rule (Grubbs): or a conditioned anticipatory warrant to comply with the req of PC, it must be true that
• (1) if the triggering condition occurs, there is a fair probability that contraband or evidence of a crime will be found in a particular place, AND
• (2) that there is PC to believe the triggering condition will occur
 officer’s affidavit supporting the anticipatory search warrant must provide sufficient info to support both of the above reqs

Question 5

key note and 2 rules for knock and announce req

Answer 5

 key note: knocking and announcing is part of the reasonableness inquiry under the 4th Amendment
• in some circumstances an officer’s unannounced entry into a home might constitute an unreasonable search/seizure under the Fourth Amendment
**SUPER HARD TO PROVE VIOLATION

 rule: although a search or seizure of a dwelling might be unconstitutional if police officers enter without prior announcement (knock and announce), circumstances may also establish the reasonableness of an unannounced entry (Wilson)
• Examples include:
o under circumstances presenting a threat of physical violence,
o where a prisoner escapes from an officer and retreats to his dwelling
o where police officers have reason to believe that evidence would likely be destroyed if advance notice were given

 rule: in order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion (less than probable cause required) that knocking and announcing their presence, under the particular circumstances, would be: (Richards)
• dangerous,
• futile, or
• that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence
• (this showing is not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged)
**need not necessarily prove any of this to justify the amount of time you waited after knocking

Question 6

rules for searching and detaining persons present during execution of a warrant

Answer 6

 rule: as a general rule, the police cannot search persons who are present when a warrant is being executed just by virtue of the person being there (Ybarra)

 rule: the police, however, may detain persons who are present when a warrant is being executed (Summers)
• an officer’s authority pursuant to Summers to detain incident to a search is categorical; it does not depend on the quantum of proof justifying a detention (in other words neither probable cause nor even reasonable suspicion is required) (Muehler)
• inherent in this authorization to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention (Muehler)
• justifications for detention: (Bailey)
o (1) officer safety,
o (2) facilitating the completion of the search, and
o (3) preventing flight

• rule: the categorical authority to detain incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched – once an individual has left the immediate vicinity of a premises to be searched, detentions must be justified by some other rationale (Bailey)
o in closer cases courts can consider a number of factors to determine whether an occupant was detained within the immediate vicinity of the premises to be searched, including:
 the lawful limits of the premises,
 whether the occupant was within the line of sight of his dwelling,
 the ease of reentry from the occupant’s location, and
 other relevant factors

Question 7

officer mistakes of law and fact

Answer 7

 mistake of fact: the Court has recognized the need to allow some latitude for honest mistakes that are made by officers in the process of obtaining and executing search warrants (Garrison)
• the constitutionality of these mistakes is affected by whether they are objectively understandable and reasonable, looking at the conduct in the light of the info available to the officers at the time they acted
o ex) if the officers genuinely went into the wrong apt without knowing, that can be objectively okay, but once they realize that it is the wrong apartment, they must leave immediately

 mistakes of law: same objective rule of reasonableness applied (Heien)
• ex) if an officer pulls a car over for what he thought was a traffic violation, but it turned out the activity was perfectly legal

Question 8

5 key points for exigent circumstances (including definition and key points regarding the inquiry)

Answer 8

 definition: exigent circumstances are those in which the urgent need for immediate action becomes too compelling to impose upon governmental actors the attendant delay that accompanies obtaining a warrant

 the inquiry: whether the circumstances give rise to an objectively reasonable belief that there was a compelling need to act and insufficient time to obtain a warrant

 the exigency of the circumstances is evaluated based upon the totality of the circumstances known to the governmental actor at the time of the entry

 mere speculation is inadequate; rather, the government must rely upon specific and articulable facts and the reasonable inferences drawn from them

 the manner and the scope of the search must be reasonably attuned to the exigent circumstances that justified the warrantless search, or the search will exceed the bounds authorized by exigency alone

Question 9

hot pursuit exception (4 requirements)

Answer 9

 requirements (Hayden):
• officers must have probable cause to believe that a crime has been committed and that the suspect is on the premises
• there must have been some form of a chase (“immediate and continuous pursuit”) of the suspect
• the suspect must be aware that he is being chased (otherwise there is no hot pursuit because he is not running away from anything)
• while a short time lapse before entry will not render the warrantless entry unconstitutional, a significant delay will

Question 10

emergency aid exception

Answer 10

 rule: where an officer has an objectively reasonable belief that an occupant is seriously injured or imminently threatened with such injury (“in need of immediate assistance”), warrantless entry is permissible to render emergency assistance to the injured or to protect an occupant from injury (Stuart)
• the officer’s subjective intentions in entering without a warrant are irrelevant (so the officer could have entered trying to discover evidence, not caring about the safety of the individuals inside or even believing that someone was actually seriously injured or in danger of such injury, instead simply hoping to see evidence in plain view, and the entry would still be constitutional)

Question 11

preventing destruction of evidence exception (and exception to the exception)

Answer 11

 rule: an objectively reasonable belief that the destruction of evidence is imminent provides officers with a basis for conducting an otherwise impermissible warrantless search to preserve the evidence (King)
• officers’ subjective intentions in conducting a warrantless entry are irrelevant and the danger of destruction of evidence having arisen in response to law enforcement’s actions, even where such a reaction was reasonably foreseeable, will not invalidate a warrantless entry

• exception: if the exigency arises in response to an actual or threatened 4th Amendment violation [difference between police announcing that they are at the door (permissible) and police saying that they are breaking the door down and coming in (impermissible)]

Question 12

3 rules for application of “destruction of evidence” exception to drunk driving

Answer 12

• rule: in those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so (McNeely)

• rule: a breath test (less intrusive), but not a blood test (more intrusive), may be administered as a SITLA for drunk driving (Birchfield)
o **as in all cases involving reasonable SITLA, a warrant is not required

• rule: when police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment (Mitchell)
o however, an exception may arise where the person’s blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties
o heavy presumption against unreasonableness

Question 13

protecting officer safety exception

Answer 13

 rule: the officers must have an objectively reasonable basis for concluding that there is an immediate need to act to protect themselves and/or others from serious harm (you can probably cite to Meeks for this)

Question 14

community caretaker exception

Answer 14

 governing rule: the government must show that (McCormick – TN case):
• (1) the officer possessed specific and articulable facts which, viewed objectively and in the totality of the circumstances, reasonably warranted a conclusion that a community caretaking action was needed, such as the possibility of a person in need of assistance or the existence of a potential threat to public safety; and
• (2) the officer’s behavior and the scope of the intrusion were reasonably restrained and tailored to the community caretaking need
• (in Tennessee, officer’s subjective intentions are irrelevant to community caretaker analysis, however – “courts must meticulously consider the facts and carefully apply the exception in a manner that mitigates the risk of abuse”)
• **undecided whether this exception applies to the home

Question 15

plain view exception

Answer 15

 framework:
• (1) the officer was where he or she was legally entitled to be when seeing the item in plain view,
• (2) the items incriminating nature must be “immediately apparent,” AND
• (3) the officer has a lawful right to access the object itself

Question 16

3 ancillary rules for plain view exception

Answer 16

 rule: law enforcement needs probable cause to actually seize the item (Hicks)
• i.e. you can’t move the item to confirm its incriminating nature without PC

 rule: an officer’s discovery of incriminating evidence in plain view from a lawful vantage point is an exception to the warrant req even if the officers didn’t discover the evidence inadvertently (Horton)

 rule: the plain view exception also applies to other sensory perceptions such as plain touch and plain smell (Dickerson)
• however if you are doing something like patting down for a gun and you find drugs, but their nature is not immediately apparent, then you can’t search (so if you feel a baggy of something but its not immediately apparent that its drugs, you can’t go and pull it out because that becomes an evidentiary search)
 **remember that under the warrant req, once you have found what you came for, you need to stop

Question 17

automobile exception (5 rules)

Answer 17

 governing rule: law enforcement may conduct a warrantless search of an automobile or other moveable vehicles (boat, plane, etc.) if officers have probable cause to search the vehicle
• key distinction from homes – cars are mobile, so all you need is PC, not a warrant (b/c it’s hard to pin down juri) (Carroll)

 rule: this exception applies even with cars in police yards (regardless of whether it would actually be moved) (Chambers)

 rule: when the police lawfully stop a vehicle, they may order the driver (Mimms) and passengers out of the vehicle (Wilson) – this is automatic not even reasonable suspicion is required

 rule: the police may conduct a pat down search for weapons on persons pulled over in traffic stop if the police have reasonable suspicion that the person subjected to the frisk is armed and dangerous (Johnson)

 rule: the automobile exception does not permit the government to enter a home or the curtilage to search a vehicle therein without a warrant (Collins)

Question 18

automobile exception (rule for searches of containers)

Answer 18

 **searches of containers in automobiles: law enforcement can engage in warrantless searches of containers in vehicles if the officers have probable cause to search either the container or the vehicle (Acevedo)
• if the container is not in the vehicle, then officers cannot engage in a warrantless search of the container even if they have probable cause to search the container but can seize the container while they attempt to obtain a warrant if there are exigent circumstances
• **takes away pre-Acevedo distinction between PC to search car and PC to search items within the car (there is still tension because you can’t stop someone on the street to seize a backpack, but when they put it in their car its free game)

• rule: where the government has probable cause to search a vehicle, they can search not only containers therein belonging to the driver/owner but also passengers in the vehicle even if there is no reasonable suspicion or probable cause as to the passengers in particular (Houghton)

Question 19

search incident to arrest exception (3 rules)

Answer 19

 governing rule: officers may conduct a warrantless search of the arrestee as part of a valid search incident to arrest (Chimel)
• officers may also conduct a warrantless search of the arrestee’s grab area – the area from within which the arrestee might have obtained either a weapon or evidence – as part of a valid search incident to arrest

 rule: the level of dangerousness of the crime or likelihood of discovering evidence of crime is irrelevant in determining whether the warrantless search was constitutional (Robinson)

• **the validity of warrantless searches incident to arrest do not depend on the probability that weapons or evidence will be found on the suspect in a given case
• but law enforcement officers have to actually make a custodial arrest of the person to conduct a search incident to arrest not just be authorized to arrest the person (Knowles)

 rule (timing): the authority for a SITLA disappears when there is no longer any danger that the arrestee might gain access to the ppty to seize a weapon or destroy evidence (Chadwick)

 rule: a warrant is generally required before search of info on a cell phone even when the phone is seized incident to arrest (Riley)
• **certain exigencies may justify warrantless search, like: hot pursuit, preventing destruction of evidence, assisting injured persons, etc.

Question 20

search incident to arrest automobile exception

Answer 20

 governing rule: a police officer who arrests a vehicle occupant or recent occupant may search the passenger compartment if (1) the arrestee is within reaching distance of the vehicle at the time of the search OR (2) the officer has reason to believe that the vehicle contains evidence of the offense of arrest (Gant)

• the court will analyze the reasonableness of cops trying to evade this rule by keeping the suspect near the car – it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee’s vehicle remains
• **compare w automobile exception: so under (2), you can only search the car for evidence of the crime for which the arrest was made, however, if you find something on the arrestee’s person that gives you PC to search the car (like you find drugs and now you have PC to search for more drugs), you can search the car under the automobile exception
• **circuit split on Gant’s application outside the vehicle context

Question 21

inventory search exception (2 rules)

Answer 21

 rule: when police have properly taken a vehicle into their custody, they may conduct an inventory search pursuant to an established standard inventory policy even without a warrant or probable cause (Opperman)
• • **department regulations (if reasonable) will typically be given judicial deference – but the officer must not exceed the scope (i.e. will likely also be invalidated if you do more than just search and seize – if you seize contents of a vehicle and test them)
• inventory searches have been invalidated where law enforcement does not maintain the inventory sheets and/or provide a safe place for storage of valuables or where the inventory search is discretionary rather than standard

 rule: police may search any article or containers on an arrestee as part of a routine established inventory procedure that is incident to incarcerating a lawfully arrested person even without a warrant or probable cause to support the search (Lafayette)

 **note: if you have PC upon stopping the vehicle of some criminality, you can search it yourself, and there is no timing req, so you could search it back at the station without putting it into the police yard b/c you have sufficient PC – i.e. this type of personal search would not be in violation of procedures

Question 22

protective sweep exception

Answer 22

 governing rule: lacking probable cause or reasonable suspicion to believe that any danger is posed, law enforcement may in effectuating an arrest, nevertheless, as part of a protective sweep on private premises, look in closets and other spaces immediately adjoining the place of arrest from which an attack could occur (Buie)
• to extend the protective sweep further, law enforcement must have reasonable suspicion that the area to be swept harbors an individual posing a danger to those on the arrest scene (i.e. you can’t search a washing machine because no individual could be hiding in there)
• **protective sweeps are not full searches of the premises and can only extend to a cursory inspection of those spaces where a person may be found and the sweep can last no longer than is necessary to dispel the reasonable suspicion of danger and no longer than it takes to complete the arrest and depart from the premises

Question 23

consent exception

Answer 23

 governing rule: when the subject of a search is not in custody and the government attempts to justify a search on the basis of his or her consent, the government bears the burden of proof to demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion (Schneckloth)

• voluntariness is a question of fact to be determined from the totality of the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent
 **there is no Miranda equivalent to consent searches
 the scope of authority to search extends only as far as is authorized by the consent
 consent to search can be revoked

Question 24

consent exception rules for co-occupants and other 3ps

Answer 24

 rules for co-occupants and other 3ps:
• a co-occupant can consent to a search of shared areas of a dwelling or shared property, but not to property that is not his or hers

• even if a third party does not have actual authority to voluntarily consent to the search of the property, real or personal, a search will still be valid where the third party reasonably appeared to law enforcement to have apparent authority and the search is within the scope of the third party’s apparent authority (Randolph)

o exception: a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him or her
 **limited to situations in which the objecting occupant is physically present (so the objecting party can’t stop the search if he is not there – even if his absence is due to his arrest by police - but the arrest must be a valid one!)

 exception to the exception: where the people living together fall within some recognized hierarchy, like a parent and a minor child at private residence or barracks housing military personnel of different grades, the objection of a physically present co-occupant who is lower in the hierarchy will not render the search unreasonable

Question 25

administrative searches exception

Answer 25

 rule: in the absence of a compelling urgency to inspect at a particular time or on particular day, a warrant should be obtained to conduct an administrative search of a private residence unless you have consent (Camera)
• administrative searches are those related to a public service/public health
• a warrant should be issued if a valid public interest justifies the intrusion contemplated – such justification does not have to depend upon specific conditions of the property to be inspected

Question 26

administrative search exception for closely-regulated businesses

Answer 26

 rule: warrantless searches of closely regulated businesses (ex – liquor sales, firearms dealing, mining, or running an automobile junkyard) are permitted even in the absence of exigent circumstances where: (Burger)
• (1) there is a substantial government interest in the administrative regulatory scheme,
• (2) the warrantless entry is necessary to further the regulatory scheme, AND
• (3) the ordinance or statute that permits the warrantless inspections must, by its terms, provide an adequate substitute for the warrant, such as rules that limit the discretion of the inspectors, regarding the time, place, and scope of the search, and providing notice to the property owner that they are subject to such searches

• note: if the business is not closely regulated, then there must be an opportunity for preclearance review of the reasonableness of the governmental inspection of the business premises or its papers (note this does not mean that the government could not obtain an ex parte warrant in support of a surprise inspection or that papers could not be seized while a determination of whether searching the papers would be reasonable is being made by the magistrate)
• rule: hotels and electrical plumbing installation businesses are not considered “closely regulated (Patel)

o **significant change after Patel – closely regulated businesses are the exception, Court is looking for a comprehensive scheme of regulation that distinguishes the would be closely regulated business from numerous other businesses

Question 27

boarder crossings exception

Answer 27

 rule: officers may conduct searches without a warrant, probable cause, or even reasonable suspicion of persons and property that crosses an international border into the United States either at the border itself or at fixed location near the border (Flores-Montano)
• **broad authority that extends to searches of people/vehicles/mail entering the country

• mail crossing international borders into the United States is subject to search where there is reasonable cause to suspect (a requirement imposed by statute)
• intrusive searches of a person such as body cavity searches or an extended detention (note 1 to 2 hours is not considered extended – Flores-Montano) require reasonable suspicion

Question 28

checkpoint exception (4 rules)

Answer 28

 governing rule: law enforcement may utilize checkpoints/roadblocks along roadways provided that they do so pursuant to a neutral plan and that the primary purpose of the roadblock is related to ensuring roadway safety or policing the border (Sitz) but not where the checkpoint/roadblock is being used to detect evidence of ordinary criminal wrongdoing (Edmond)
• courts assess the actual intent of the plan and do not simply accept that the purpose asserted by the government is the actual purpose

 rule: checkpoints/roadblocks can also be utilized where the stop is a reasonable attempt by law enforcement to enlist the public’s assistance in seeking information about a crime committed by others rather than based on seeking to determine whether the occupants of the vehicle that has been seized as part of the stop was involved in criminal activity (Lidster)

 rule: checkpoints/roadblocks can also be utilized where there are exigencies that warrant the use of a checkpoint such as to thwart an imminent terrorist attack or to catch a dangerous felon who is likely fleeing by a particular route

 rule: detention of particular motorists for more extensive seizures (ex: application of a field sobriety test) than the initial seizure of the checkpoint will require satisfaction of an individualized suspicion standard

Question 29

government employees exception (searching work materials)

Answer 29

 rule (Quon): when conducted for a non-investigatory, work-related purpose or for the investigation of work-related misconduct, a warrantless search of government employee (ex: searching work office, texts on a government issued pager, etc.) is reasonable if:
• (1) the search is justified at its inception, and
• (2) the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the circumstances giving rise to the search

Question 30

schools exception

Answer 30

 rule: schools may conduct warrantless searches of students and their possessions so long as the scope of the search is reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction (infraction not limited to crimes can be a violation of school rules) (Redding)

Question 31

drug testing exception (govt EEs)

Answer 31

 rule: the government may require automatic drug testing in the absence of a warrant, probable cause, or even reasonable suspicion for employees where there are special needs for such testing and the industry is highly regulated for the purposes of ensuring public safety or where the employees are directly involved in drug interdiction (Skinner)
• ex) allowing immediate drug testing of railroad workers involved in accidents (Skinner)
• ex) allowing drug testing through urinalysis for customs workers upon their transfer/promotion to positions having a direct involvement in drug interdiction or requiring the carrying of firearms (Von Raab)
• ex) not allowing drug testing requirements for candidates for public office

Question 32

drug testing exception (student extracurriculars)

Answer 32

 rule: the government may require minor students in public schools who participate in extracurricular activities (athletic or non-athletic) to submit to random drug testing so long as:

• (1) the drug testing is conducted in a manner that respects the privacy of the student in terms of how the test is administered and how knowledge of the results are controlled,
• (2) the results are not shared with law enforcement or conducted for law enforcement purposes, and
• (3) an option to decline to submit to such a test exists with the consequences of failure to do so being less than expulsion from the school though the consequences can include exclusion from participation in the extracurricular activity
• **this rule as it applies to student athletes (Acton) and was extended to all extracurriculars (Earls)

• **note that the school must demonstrate some need for the policy – i.e. must relate to some safety or security needs and cannot be merely symbolic

Question 33

drug testing exception (medical patients)

Answer 33

 rule: a patient has a reasonable expectation of privacy that the results of medical testing will not be shared with nonmedical personnel – suspicionless drug testing of patients conducted for law enforcement purposes and which is entangled with law enforcement is impermissible (Ferguson)

Question 34

jails and prisons exception

Answer 34

 rule: law enforcement may conduct strip searches and close physical inspection of persons who are being admitted into jail or prison in the absence of any individualized suspicion (Florence)
• **doesn’t matter the seriousness of the offense
• undecided question: the Court did not determine whether it is always reasonable to conduct a strip search and close physical inspection of arrestees prior to a judicial officer considering their detention and where the person could be held in facilities apart from the general population (like getting picked up for a D&D and you are held for a couple hours – it’s likely a different story)

Question 35

probation/parole exceptions

Answer 35

 probation: a court-imposed criminal sentence that, subject to stated conditions, releases a convicted person into the community instead of sending the person to jail or prison
• rule: where the government provides that a condition of probation is being subjected to searches in the absence of a warrant or probable cause, the government can conduct warrantless searches of the probationer and her property based upon reasonable suspicion (Knights)

 parole: the conditional release of a prisoner from imprisonment before the full sentence has been served.
• rule: where the government provides that a condition of parole is being subjected to searches in the absence of a warrant, probable cause, or reasonable suspicion, the government can conduct suspicionless searches of parolees (Samson)
• **less protection for those on parole because its riskier
 **key point: the condition of the probation/parole must be what is subject to search

Question 36

DNA testing exception (upon booking)

Answer 36

 rule: when officers make an arrest supported by probable cause for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA (analysis related to identification not assessing traits) is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment (King)
• **may only be limited to felonies (i.e. “serious offenses)
• **you can also run the results against the “unsolved crimes” database