4th Am_Search & Seizure Flashcards
What are the 5global issues to a 4th Am Search and Seizure analysis?
1) Whether a search/seizure is governed by the 4th Am;
2) Whether the person has standing to challenge the gov’ts conduct;
3) Whether a search/seizure conducted WITH a warrant satisfies the 4th Am reqs;
4) Whether a search/seizure conducted WITHOUT a warrant satisfies the 4th Am reqs (i.e. warrantless searches); AND
5) Whether evidence is admissible in ct EVEN IF the evidence is obtained thru a violation of the 4th Am?
When is a search or seizure governed by the 4th Am?
A search/seizure is governed by the 4th Am when…
1) It’s conducted by a gov’t agent; AND
(i) Publicly paid police officers (on- or off-duty)
(ii) Private citizens ONLY IF they are acting at direction of police
(iii) Private security guards ONLY IF they are deputized by the pwr to arrest
(iv) Public school administration (e.g. principals, etc)
2) The search/seizure was in an area protected by the 4th Am; AND
4th Am protects individuals from unreasonable search/ seizure of…
(i) Persons (i.e. bodies)
(ii) Houses (inc. hotel rooms; “curtilage,” which is an area of domestic use immediately surrounding the house,like the backyard)
(iii) Papers (e.g. personal correspondence) (iv) Effects (i.e. personal belongings)
4th Am does NOT protect objects knowingly exposed to 3d parties, like…
(i) Paint scrappings on the outside of a car (ii) Account records at a bank (iii) Anything that can be seen from airspace (iv) Garbage left on the curb (v) Voice
(vi) Odors (including odors emanating from car or luggage) (vii) Handwriting styles
(viii) Anything that can be seen IN or ACROSS the “open field”
3) The gov’t agent EITHER:
(i) PHYSICALLY INTRUDED on a protected area/item to obtain information (e.g. GPS tracking device on a car); OR
(ii) VIOLATED an individual’s reasonable expectation of privacy in a protected area/item
To meet this std, an individual must show
(a) an ACTUAL or SUBJECTIVE expectation or privacy; AND(b) the privacy expectation is “one that society recognizes as reasonable”
A police search is presumptively unreasonable WHEN it they use a device that is NOT in the public use to explore the details of a home that officers could NOT have known w/o physical intrusion
When does a person have standing to challenge a search/seizure under the 4th Am?
NOTE: NY Distinction
Individual’s PERSONAL privacy rights must be invaded; NOT just those of a 3d party
1) They OWN the premises
2) They RESIDE on the premises
3) They are overnight GUESTS on the premises (provided the area is one that guests can be expected to access)
Yes: living room; dining room; bathroom
No: closet in the host’s room
Standing DOES NOT EXIST when…
1) They are using someone else’s residence SOLELY for business purposes (e.g. a drug house)
2) They own the property seized, BUT no reasonable expectation of privacy in the AREA from where the property was seized (e.g. no go for man who hides his drugs in girl’s purse)
3) They are passengers in cars and there is a search of the car
NY DISTINCTION: there IS STANDING if they are passengers in a car and weapons found in the car are being attributed to them
When is the 4th Am warrant req satisfied?
NOTE: NY Distinction
1) Warrant must be issued by a neutral and detached magistrate
“Neutral and detached” = judicial officer’s conduct is NOT biased in favor of the prosecution
2) the warrant must be supported by probable cause and particularity
Probable causereqs proof of a “fair probability” that contraband OR evidence of crime will be found in the area searched
Hearsay IS admissible for this purpose
Police may rely on informant’s tip (EVEN if it’s anonymous);
PROVIDED police can get enough corroborating information for a judge to make a “common sense practical” determination that PC exists
NY DISTINCTION: the Aguilar-Spinelli test (stricter) is used in NY to evaluate PC based on tips; gov’t MUST establish: (i) the informant’s veracity/reliability; AND (ii) the informant’s basis of knowledge (NOTE: if basis is unkwn, the police can estab thru corroborating evidence)
Particularity reqs”no fishing expeditions”; the warrant MUST specify:
(i) the PLACE to be searched; AND (ii) the ITEMS to be seized
3) IF the warrant is DEFECTIVE, the police officers relied on defective warrant in “good faith”
An officer’s “good faith” canovercome const. deficits in PC and particularity, UNLESS…
(i) Affidavit supporting warrant is EGREGIOUSLY lacking in PC (no reasonable officer could rely on it)
(ii) Warrant is so FACIALLY DEFICIENT in particularity that officers couldn’t reasonably rely
(iii) The affidavit relied upon by magistrate contains KNOWING or RECKLESS falsehoods that are necessary for a PC finding
The magistrate who issued the warrant is BIASED in favor of the prosecution
NY DISTINCTION: the “good faith” doctrine DOES NOT exist in NY
4) the warrant was properly executed by the police
Compliance w/ the warrant’s terms and ltds: officers are allowed to search ONLY those areas/items specified in the warrant
“Knock and Announce” rule: reqs police to “knock and announce” their presence AND their purpose before entering, UNLESSan officer believes that doing so would be…
(i) futile;
(ii) dangerous; OR
(iii) would inhibit the investigation
What are the 8 exceptions to the warrant requirement of the 4th Am?
“ESCAPIST”
1) Exigent circumstance
2) Search incident to arrest
3) Consent
4) Automobile
5) Plain view
6) Inventory
7) Special needs
8) Terry “stop and frisk”
What is the”exigent circumstances”exception to the warrant requirement of the 4th Am?
3 types of situations that DON’T req warrants…
1) Evanescent evidence: evidence that would DISSIPATE or DISAPPEAR in the time it would take to get a warrant (e.g. scraping under fingernails)
2) Hot pursuit of fleeing felon: allows police to enter the home of a suspectOR a 3d party to search for a FLEEING felon
During hot pursuit, ANY evidence of a crime discovered in plain view while searching for the suspect is admissible
3) “Emergency aid” exception: Police may enter a residence w/o a warrant when there is an OBJECTIVELY reasonable basis for believing that a person inside is in need of EMERGENCY AID to address or prevent injury
What are 5reqs for the”search incident to arrest”exception to the warrant requirement of the 4th Am?
NOTE: NY Distinction
1) A valid/lawful arrest (“custodial arrest”)
2) Justifications of officer safety; AND the need to preserve evidence
3) The search must be contemporaneous in time AND place w/ the arrest
4) The search must be w/in the “wingspan” (i.e. body, clothing, and containers w/in the arrestee’s immediate cntrl) WITHOUT REGARD TO the offense for which the arrest was made
NY DISTINCTION: to search containers w/in the wingspan, an officer MUST suspect that the arrestee is ARMED
5) To search automobile incident to an arrest, officer MUST search w/in a permissible scope, including the interior cabin of the car (and closed containers therein), BUT not the trunk
“Secured” arrestee: once an officer has secured an arrestee (i.e. handcuffed and put in back of squad car), the officer can search the arrestee’s vehicle ONLY if she has reason to believe that the vehicle MAY CONTAIN evidence RELATING TO the crime for which the arrest was made
NY DISTINCTION: once the occupant is out of the car, police CANNOT search containers inside the vehicle to look for weapons or evidence of crime
What are 2reqs for the”consent”exception to the warrant requirement of the 4th Am?
1) Consent must be VOLUNTARY and INTELLIGENT
NOTE: police officers are NOT req’d to tell someone that she has the right to refuse consent
2) Search must extend ONLY TO those areas that a reasonable officer would believe he had permission
NOTE re: “apparent authority”: if a police officer obtains consent to search from someone who lacks actual authority, the consent is STILL VALID provided the officer reasonably believed that the consenting person had “actual authority” (e.g. they have a key to an apt and says that it’s “our” apt)
NOTE re: shared premises: when adults share a residence, ANY resident can consent to search of the COMMON AREAS
BUT, if the co-tenants DISAGREE re: consent, the objecting party prevails (for shared areas)
What are 2reqs for the”automobile”exception to the warrant requirement of the 4th Am?
1) Police officer must have PC to believe that CONTRABAND or EVIDENCE of crime will be found in the vehicle;
2) Search scope = the entire vehicle by opening ANY package, luggage, or other container that may REASONABLY CONTAIN the items for which the PC exists
Justifications: vehicles’ readily mobility and individuals’ lesser expectations of privacy in vehicles
NOTE: a routine traffic stop can MORPH into a full auto search SO LONG AS the officer acq’s PC BEFORE the search is initiated
What are 3reqs for the”plain view”exception to the warrant requirement of the 4th Am?
1) Lawful access to the PLACE from which the item can be plainly seen;
2) Lawful access to the ITEM itself; AND
3) Criminality of item IMMEDIATELY apparent
What are 3reqs for the”inventory”exception to the warrant requirement of the 4th Am?
1) Regulations governing them must be REASONABLE in scope;
2) Search ITSELF must comply w/ those regulations; AND
3) Search must be conducted in GOOD FAITH (i.e. be motivated ONLY BY the need to safeguard the owner’s possessions and/or ensure officer safety)
NOTE: inventory searchs apply in 2 contexts: (i) when an ARRESTEE is booked into jail; AND (ii) when a VEHICLE is impounded
What are 4 “special needs” exceptions to the 4th Am warrant requirement?
“Special needs” = gov’t emplrs and school officials BEYOND a general interest in law enforcement
1) Random drug testing:
SCOTUS has approved warrantless, random drug tests in a variety of contexts, including: (i) railroad emps following an accident; (ii) customs agents responsible for drug enforcement; AND (iii) public school children who participate in ANY extracurricular activity
NOTE: suspicionless drug tests are NOT permitted where their primary purpose is to gather CRIMINAL EVIDENCE for general use by law enforcement
2) Parolees: warrantless, SUSPICIONLESS searches of parolees and his home are permissible as a condition of parole
3) School searches: warrantless searches of the person and the “effects” (purses, backpacks, etc) of public schoolchildren are permissible to investigate violations of school rules (e.g. no smoking on school grounds), PROVIDED ea. search is based on reasonable suspicion at its inception and is NOT excessively intrusive (i.e. not a strip search)
4) Border searches: Neither citizens nor non-citizens have ANY 4th Am rights AT THE BORDER wrt ROUTINE searches of persons and effects
What is a Terry stop?
NOTE: NY Distinction
It is a brief WARRANTLESS detention (“seizure”) based on REASONABLE SUSPICION (specific and articulable facts) thatCRIMINAL ACTIVITY is present
Terry stops can take place ANYWHERE (e.g., on the street, in a car, at the airport, etc)
Reasonable suspicion is LESS demanding than PC
NOTE: Reasonable suspicion std can be met via informant tip; PROVIDED the tip contains sufficient predictive info, which is corroborated by the police, to est. the informant’s reliability
When does “seizure” occur? “Seizure” occurs when a reasonable person would NOT feel free to leave OR to decline an officer’s request to answer questions (based on the totality of the circumstances)
Factors to consider: (i) whether an officer brandishes a weapon; (ii) the officer’s tone/demeanor; OR (iii) whether an individual was told she had the right to refuse consent
Police pursuit: when being pursued by the police, an individual is seized ONLY IF he submits to the officer’s authority by stopping OR if the officer physically restrains him
NY DISTINCTION: police pursuit is seizure in and of itself
Traffic stops: BOTH driver AND the passengers are seized (either has standing to challenge legality)
Officer can order both driver and passenger out of the car Dog sniffs at traffic stops are permissible PROVIDED the “sniff” does not prolong the stop unreasonably
What is a Terry frisk?
NOTE: NY Distinction
WARRANTLESS pat down of the body and outer clothing for weapons (which can lead to a seizure) based on a REASONABLE SUSPICION (specific and articulable facts) that the suspect is ARMED and DANGEROUS(safety-based rationale)
Reasonable suspicion is LESS demanding than PC
NOTE: Reasonable suspicion std can be met via informant tip; PROVIDED the tip contains sufficient predictive info, which is corroborated by the police, to est. the informant’s reliability
What can be seized? (i) Anything reasonably believed to be a weapon (ii) Contraband; PROVIDED it can be recognized w/o manipulation of the object (e.g. licking to seek if coke)
NY DISTINCTION: Officer can seize an item ONLY IF it reasonably appears to be a weapon (i.e. CAN’T seize contraband)
(iii) During a traffic stops: an officer can search the passenger cabin of the suspect’s vehicle; PROVIDED the search is ltd to areas in which a weapon may be placed or hidden
(iv) “Protective sweeps” during home arrests: officer may “sweep” the residence looking for criminal confederates of the arrestee whose presence may threaten officer safety
Officers may “sweep” the area IMMEDIATELY adjoining the place of arrest based on the risk that the house harbors a person who poses a danger
To justify a more remote “sweep”, arresting officer must have ADDITIONAL facts sufficient to allow a “reasonably prudent” officer to conclude that an individual who may threaten officer safety is present in the area swept
What is the exclusionary rule for evidence obtained from an unconst search/seizure under the 4th Am (as well as its 4 ltds)?
Direct OR derivative evidence, whether physical or testimonial, that is obtained in violation of federal statute or const. prvn is INADMISSIBLE in ct against the individual whose rights were violated
LIMITATIONS to the exclusionary rule
1) Cross examination: unconst obtained evidence is excluded from the prosecutor’s case in chief ONLY; it MAY be introduced to impeach ∆’s testimony on cross-examination
2) “Knock and announce” violations: do NOT require the suppression of evidence that is subsequently discovered
3) Police error: to trigger exclusionary rule, police conduct must be (i) deliberate; (ii) reckless; OR (iii) grossly negl. (i.e. merely negl. behavior is NOT sufficient)
4) Officer’s reasonable mistake: exclusionary rule does NOT apply to evidence erroneously obtained when executing a search warrant (PROVIDED the mistake was reasonable)
