4th Am_Search & Seizure Flashcards
What are the 4global issues in a 4th Am Search and Seizure analysis?
1) Whether a search/seizure is governed by the 4th Am;
2) Whether a search/seizure conducted WITH a warrant satisfies the 4th Am reqs;)
3) Whether a search/seizure conducted WITHOUT a warrant satisfies the 4th Am reqs (i.e. warrantless searches); AND
4) Whether evidence is admissible in ct EVEN IF the evidence is obtained thru search that violates the 4th Am?
When is a search or seizure governed by the 4th Am? (4 key points)
A search/seizure is governed by the 4th Am when…1) It’s conducted by a gov’t agent 2) in an area or item protected by the 4th Am AND 3) the gov’t agent either physically intruded on a protected area or item to obtain information OR violates an individual’s reasonable expectation of privacy in a protected area or item. 4)The individual subjected to the search must have STANDING to challenge the government agent’s conduct
When does a person have standing to challenge a search/seizure under the 4th Am? NOTE: NY Distinction
To have standing, an individual’s PERSONAL privacy rights must be invaded; NOT just those of a 3d party Standing EXISTS when… 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?
4th Am warrant req is satisfied when:
1) the warrant is issued by a neutral and detached magistrate. Judge is NOT neutral when her conduct demonstrates bias in favor of the prosecution
2) the warrant is supported by probable cause AND particularity. Probable causereqs proof of a “fair probablility” 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 based on the totally of circumstances . To satisfy particularity, the search warrant must specify the place to be searched AND the items to be seized.
3) IF the warrant lacks probable cause or particularity, police officers can argue they relied on the DEFECTIVE warrant in “good faith” to overcome constitutional defects (NY rejects this all together, common law has 4 exceptions)
4) the warrant was properly executed by the police. i) Compliance w/ the warrant’s terms and ltds: officers are allowed to search ONLY those areas/items specified in the warrant (Note, police are allowed to detain occupants found within or immediately outside the residence at the time of the search) ii) “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… futile;dangerous; OR would inhibit the investigation
What are the 8 categorical 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 are the 3 types of “exigent circumstances” that will excuse a warrantless search?
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 the reqs for asearch incident to arrest? NOTE:NY DISTINCTIONS
1) Arrest must be lawful 2) the search must be contemporaneous in time AND place w/ the arrest 3) The search must be w/in the “wingspan”, includes the 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
When searching an automobile incident to an arrest, officer is ALLOWED to search w/in a permissible scope, including the interior cabin of the car (and closed containers therein), BUT not the trunk. 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) the 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) the consent to search extends to all areas for which a reasonable officer would believe permission to search was granted. 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 is the req and scope for the”automobile”exception to the warrant req of the 4th Am?
1) the police officer must have PC to believe that CONTRABAND or EVIDENCE of crime will be found in the vehicle; 2) the police officer can search the entire vehicle AND may open ANY package, luggage, or other container that may REASONABLY CONTAIN the items for which there was PC to search. 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) the officer must have lawful access to the PLACE from which the item can be plainly seen; AND 2) lawful access to the ITEM itself; AND 3) the criminality of the item must be IMMEDIATELY apparent
What are 3reqs for the”inventory”exception to the warrant requirement of the 4th Am?
Inventory searches are constitutional provided 1) the regulations governing them are REASONABLE in scope; 2) the search ITSELF must comply w/ those regulations; AND 3) the search is conducted in GOOD FAITH (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” of law enforcement, 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 enfocement; AND (iii) public school children who participate in ANY extracurricular activity NOTE: the special needs doctrine dies not include law enforcement programs or practices whose primary purpose is to gather CRIMINAL EVIDENCE for geneal 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 the 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 and when are you “seized” for 4th Am purposes? NOTE: NY Distinction
It is a brief WARRANTLESS detention or seizure for the purpose of investigating suspicious conduct. 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
“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 and “seizure” - 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 and what can you seize in a frisk?NOTE: NY Distinction
It is a WARRANTLESS pat down of the body and outer clothing for weapons that is JUSTIFIED by an officer’s belief that a suspect is ARMED and DANGEROUS
During a Terry frisk, an officer can always seize anything he reasonably believes to be a weapon. An officer can seize contraband; PROVIDED it can be recognized w/o manipulation of the object (e.g. licking to seek if coke)
NY DISTINCTION: an officer can seize an item ONLY IF it reasonably appears to be a weapon (i.e. CAN’T seize contraband)
When conducting a traffic stop, if an officer believes that a suspect is dangerous, he can search the passenger cabin of the suspect’s vehicle LTD to areas in which a weapon may be placed or hidden
“Protective sweeps” during home arrests: officer may “sweep” the residence looking for criminal confederates of the arrestee whose presence may threaten officer safety
What is “Fruit of the Poisonous Tree” evidence AND how can “tainted fruit” be admitted?
“Fruit of the Poisonous Tree” = derivative evidence (both physical and testimonial) that is obtained by exploiting PRIOR unconst conduct. NOTE: Like direct evidence, FOTPS evidence is INADMISSABLE in the prosecution’s case-in-chief
To admit “tainted fruit”, prosecutors MUST show a break in the causal link b/t the original illegality and the criminal evidence that is LATER discovered, which can be done by… 1) “Independent Source” doctrine: applies where there is a source for the discovery and seizure of the evidence that is DISTINCT from the original illegality 2) “Inevitable Discovery” doctrine: applies where the evidence would NECESSARILY have been discovered thru lawful means 3) “Attenuation” doctrine: admits derivative evidence where the PASSAGE of time and INTERVENING events “purge the taint” of the original illegality and RESTORE the ∆’s free will (e.g. ∆ is illegally arrested on Fri and let go, then returns the NEXT WEEK to make a confession)
