4th Am_Search & Seizure Flashcards
What are the 5 global issues to 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);
+ 4) Whether evidence is admissible in ct EVEN IF the evidence is obtained thru a violation of the 4th Am?
+ 5) Whether D has standing to challenge
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;
- Publicly paid police officers (on- or off-duty)
- Private citizens ONLY IF they are acting at direction of police
- Private security guards ONLY IF they are deputized by the pwr to arrest
- Public school administration (e.g. principals, etc)
- 2) The search/seizure was in an area protected by the 4th Am;
- 4 types of items protected:
- Persons (i.e. bodies)
- Houses (inc. hotel rooms; “curtilage,” which is an area of domestic use immediately surrounding the house, like the backyard)
- Papers (e.g. personal correspondence)
- Effects (i.e. personal belongings)
- NOT protect objects knowingly exposed to 3d parties, like…
- Financial records (bank)
- Paint scrappings on the outside of a car
- Anythiing that can be seen from airspace
- Garbage left on the curb
- Voice
- Odors (including odors emanating from car or lugguage)
- Handwriting styles
- Anything that can be seen IN or ACROSS the “open field”
- 4 types of items protected:
- 3) Govt 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
- (i) an ACTUAL or SUBJECTIVE expectation or privacy;
- (ii) the privacy expectation is “one that society recognizes as reasonable”
- Presumptively unreasonable = 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
- To meet this std, an individual must show
- (i) PHYSICALLY INTRUDED on a protected area/item to obtain information
When does a person have standing to challenge a search/seizure under the 4th Am?
NOTE: NY Distinction
IF 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?
NOTE: NY Distinction
To satsify the 4th Am…
- 1) the 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
- = 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);
- MBE: For tips: valid basis if police can get enough corroborating information for a judge to make a “common sense practical” determination that PC exists
-
NY: the Aguilar-Spinelli test (stricter) is used in NY to evaluate PC based on tips; gov’t MUST establish:
- (i) the informant’s veracicty/reliability;
- (ii) the informant’s b_asis of knowledg_e (NOTE: if basis is unkwn, the police can est thru corroborating evidence)
- = proof of a “fair probablility” that contraband OR evidence of crime will be found in the area searched
- 3) Warrant supported by particularity in the
- i) items to be seized
- ii) area to be searched
- MBE: IF the warrant is DEFECTIVE, the police officers relied on defective warrant in “good faith”
- An officer’s “good faith” can overcome const. deficits in PC and particularity,
- UNLESS…
- Affidavit supporting warrant is EGREGIOUSLY lacking in PC (no reasonable officer could rely on it)
- Warrant is so FACIALLY DEFICIENT in particularity that officers couldn’t reasonably rely
- 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
- 4) the warrant was properly executed by the police
- i) compliance w/ the warrant’s terms and limitations
- searched areas and for items in warrant
- detention of persons only inside/immediately outside the residence
- +ii) “Knock and Announce” rule:
- police MUST “knock and announce” their presence AND their purpose before entering,
- UNLESS an officer believes that doing so would be…
- futile;
- dangerous;
- OR would inhibit the investigation
- i) compliance w/ the warrant’s terms and limitations
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)
- (NOT blood alcohol level)
- 2) Hot pursuit of fleeing felon:
- may enter the home of a suspect OR 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 5 reqs for the “search incident to arrest”
NOTE: NY Distinction
To be valid, reqs…
- 1) A valid/lawful arrest (“custodial arrest”)
- 2) Justifications of officer safety; AND the need to preserve evidence
- 3) The search must be contemporaneous (time + 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
- MBE: all containers
- NY: 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 scope of arrestee’s reach
-
Scope:
- interior cabin of the car
- (and closed containers therein),
- BUT NOT the trunk
- IF arrestee is unsecured/in car: can search car for weapons or evidence
-
IF arrestee is:
-
“secured” (cuffed + in car)
- MBE: Police can search car IF reason to believe car has evidence relating to crime for which arrested
-
oustide the car –>NY:
- CANNOT search containers inside the vehicle to look for weapons or evidence of crime
-
“secured” (cuffed + in car)
-
Scope:
Valid Warrantless Searches:
Inventory Search
For an inventory search (impounded vehicle OR arrestee) to be const…
- 1) the regulations governing them must be REASONABLE in scope;
- 2) the search ITSELF must comply w/ those regulations;
- 3) the 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)
- 3) the search must be conducted in GOOD FAITH
Valid warrantless search:
Consent
To be valid…
- 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 scope of search must extend ONLY TO those areas that a reasonable officer would believe he had permission
- requres apparent authority (even if no actual)
- Shared premises: when adults share a residence,
- ANY resident can consent to search of the COMMON AREAS
- IF the co-tenants DISAGREE re: consent, the objecting party prevails (for shared areas)
Valid warrantless search:
Automobile exception
To be valid…
- 1) the police officer must have probable cause to believe that CONTRABAND or EVIDENCE of crime will be found in the vehicle;
- 2) the search scope = the entire vehicle by opening ANY package, luggage, or other container that may REASONABLY CONTAIN the items for which the PC exists
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
Valid warrantless search:
Plain View
To be valid…
- 1) the officer must have lawful access to the PLACE from which the item can be plainly seen;
- 2) the officer must have lawful access to the ITEM itself;
- 3) the criminality of the item must be IMMEDIATELY apparent
- canNOT manipulate to determine criminality
- 3) the criminality of the item must be IMMEDIATELY apparent
Valid warrantles searches:
Special Needs
“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
- (NOT permitted where their primary purpose is to gather CRIMINAL EVIDENCE for geneal use by law enforcememt)
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),
- IF based on reasonable suspicion at its inception and is NOT excessively intrusive (i.e. re age & danger to other students)
4) Border searches: neither citizens nor non-citizens have ANY 4th Am rights AT THE BORDER wrt ROUTINE searches of persons and effects
Valid Warrantless Searches:
Investigatory stop (+ frisk)
NY Distinction
= **Brief “seizure” **based on
- i) REASONABLE SUSPiCION (based upon specific and articulable facts)
- informant tip IF the tip contains sufficient predictive info, which is corrorborated by the police, to est. the informant’s reliability
- ii) that CRIMINAL ACTIVITY is present
- Terry stops can take place ANYWHERE (e.g., on the street, in a car, at the airport, etc)
NOTE: Reasonable suspecion std can be met via informant tip; PROVIDED the tip contains sufficient predictive info, which is corrorborated by the police, to est. the informant’s reliability
“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:
- MBE: 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 : police pursuit is seizure in and of itself Traffic stops:
- 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
Valid Warrantless Searches:
Terry frisk (after stop)
NOTE: NY Distinction
= pat down of the body and outer clothing for weapons (which can lead to a seizure) based on
- i) a REASONABLE SUSPICION (specific and articulable facts that inform officer’s reasonable belief)
- informant tip IF tip contains sufficient predictive info, which is corrorborated by the police, to est. the informant’s reliability
- ii) that the suspect is **ARMED and DANGEROUS **(safety-based rationale)
What can be seized?
- (i) Anything reasonably believed to be a weapon
- (ii) Contraband?
- MBE: PROVIDED it can be recognized w/o manipulation of the object (e.g. licking to seek if coke)
- NY : weapon only
- (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
- Area IMMEDIATELY adjorning the place of arrest based on the risk that the house harbors a person who poses a danger
- More - if ADDITIONAL facts sufficient to allow a “reasonably prudent” officer to _conclude that an individual who may threaten officer safety is present in the area swep_t
INVALID Search/Seizure:
Exclusionary Rule
General rule = Direct OR derivative evidence, whether physical or testimonial, that is obtained in violation of federal statute or const. prvn is INADMISSABLE 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 supression of evidence that is subsequently discovered
- 3) Police error was reasonable (negligence)
- to trigger exclusionary rule, police conduct must be (i) deliberate; (ii) reckless; OR (iii) grossly negligence
- (in either execution/invalid warrant/others)
